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In One Volume, (hm Thotisand Pages, rm/al 8vo, price 42s. cloth, A TREATISE ON THE DOCTRINK OF ULTRA VIRES: ]\i\u'^ un Investi),'ation of the I'rinripJcs wliich limit the Capacities, Powers, and Liahdities of Corjujration.'s, and more especially of Joint Stock Companies. By Skwahd Bku K, M..\., LL.I)., London, of the Inner Temple, Esq., Harrister-at-Law. Second Kditi'in. Kevi.s<;d throu;;hout and re-written, greatly enlarged, and containing tlie United Slates and Colonial Decisions. In 8ro, 1877, price 20s. cloth, THE PRINCIin.ES OF CfllMINAL LAW. intended as a Incid ExjK;<«ition of the Snhject for the I'se of Students and the Profession. By Sky.mrbt v. Peaison . 3^8 27G 333 291 79 191 293 215 273 Wrigbt V. Woodgate Wyid V. Picklord . YATES V. Frcckleton V. Wliyte . Young V. Ax tell V. Grote . PAGE 307, 310 92 192 3G7 108 137 ZAGURY V. Furnell . . 71 Zung V. Boutb Eastern Ily. Co 95 INDEX TO STATUTES CITED. &M 13 Edw. 1, c. 18 4 Edw. 3 25 Edw. 3 43 Edw. 3 2 & 3 Phil. 5 Eliz. c. 9 . 13 Eliz. c. 5 27 Eliz. c. 4 31 Eliz. c. (5 31 Eliz. 0. 12 21 Jac. 1, c. 3 21 Jac. 1, c. Ii5 PAGE I 11 283 283 283 268 371 16, 220 17, 221 . 235 . 268 . 150 17,66,203, 292, 312, 317 29 Car. 2, c. 3, ss. 1, 2 . 38,51, 100 , s. 3 . 39, 51, 100 , s. 4 39, 52, 73, 161 39 11 44 235 361 234 117, 203 66 64 235 209 53 209 63 53 65 234 234 148 295 409 148, 235 337 134 , s. / . 29 Car. 2, c. 7' . . 2 Wm. & M. sess. 1, c. 10 & 11 Wm. 3, c. 17 4 & 5 Anne, c. 16 . 8 Anne, c. 14, s. 1 . , s. 6 . 12 Anne, st. 2, c. 12 2 Geo, 2, c. 22 . . 4 Geo. 2, c. 28 . . 8 Geo. 2, c. 24 . . 11 Geo. 2, c. 19, ss. 1, , s. 18 . s. 19 13 Geo. 2, c. 19 18 Geo. 2, c. 34 19 Geo. 2, c. 37 24 Geo. 2, c. 44 13 Geo. 3, c. 63 14 Geo. 3, c. 48 14 Geo. 3, c. 78 17 Geo. 3, c. 30 42 Geo. 3, c. 19 48 Geo. 3, c. 88 53 Geo. 3, c. 141 1 & 2 Geo. 4, c. 78 6 & 7 Geo, 7 & 8 Geo, 7 & 8 Geo 9 Geo. 4, c. 14, s. 1 , s. 5 , s. 6 , s. 7 4, c. 94 4, c. 18 4, c. 29 11 Geo. 4, & 1 Wm 1 Wm. 4, c. 22 . 1 Wm. 4, c. 47 . 1 & 2 Wm. 4, c. 32 1 & 2 Wm. 4, c. 58 3 & 4 Wm. 4, c. 27 3 & 4 Wm. 4, c. 42 PAGE . . 234 . . 134 . . 46 . 120, 126 . . 106 . . 290 . . 267 . 4, 6, 206 . . 167 . 46, 220 . . 74 4, c. 68 92, 93 . . 409 . . 168 . 269, 270 . . 277 . 249, 250 17, 64, 66, 202, 203, 252, 353, 360, 361 3 & 4 Wm. 4, c. 98 3 & 4 Wm. 4, c. 104 5 & 6 Wm. 4, c. 41 5 & 6 Wm. 4, c. 50 5 & 6 Wm. 4, c. 83 7 Wm. 4, & 1 Vict. c. 1 & 2 Vict. c. 110 . 2 & 3 Vict. c. 11 2 & 3 Vict. c. 67 3 Vict. c. 5 . . 5 & 6 Vict. c. 35 5 & 6 Vict. c. 39 5 c% 6 Vict. c. 45 6 & 7 Vict. c. 73 6 & 7 Vict. c. 82 6 & 7 Vict. c. 85 6 & 7 Vict. c. 96 7 & 8 Vict. c. 66 7 & 8 Vict. c. 69 8 &: 9 Vict. c. 20 8 & 9 Vict. c. 106 26 11,12 198 17 234 328 151 391 391 12 151 234 55 106 46, 151 1.54 410 385, 386 311, 312 187, 188 . 151 253, 336 51 XVlll INDEX TO STATUTES CITED. PAOP . . . 233 330, o31, 367 . . . 294 . 21, 26, 41 . . 296 . 56, 58, 59 , . . 386 8&9 A'ict. c. 109 9 & 10 Vict. c. 93 11 & 12 V^ict. c. 44 13 lS: 14 Vict. c. 21 14 & 15 Yict. c. 19 14 & 15 Vict. c. 25 14 & 15 Vict. 0. 99 15 & 16 Vict. c. 76, s. 94 . 353 , s. 117 . 390 , s, 210 . 65 , s. 211'. 68 15 & 16 Vict. c. 83 . . . 151 15 & 16 Vict. c. 86 . . . 408 16 & 17 Vict. c. 83 . . . 387 17 & 18 Vict. c. 31 . . . 94 17 & 18 Vict. c. 34 . . . 409 17 & 18 Vict. c. 104, s. 37 . 143 , ss. 55, 57 47, 142 17 & 18 Vict, c, 104, s. . s ss 83 . . . 17 & 18 Vict. 68 69 . .76, 17 & 18 Vict, c, c. 104, s. 102 , s. 295 , s. 388 503 7 . 22. 24. 25. 26 . s. 27 . s. 51 . s. 78 . , s. 125, s , s. , s. , s. . s 142 142 143 143 343 146 146 134 385 386 385 389 390 406 283, 351, 352 79 83 18 cSc 19 Vict. c. 43 . . 18 & 19 Vict. c. 67 . . 18 & 19 Vict. c. 91 . . 18 & 19 Vict. c. Ill 18&19 Vict. c. 122 19 & 20 Vict. c. 97, s. 1 , 8. 2 262 201, 215 . 168 . 135 . 142 81, 145 . 336 . 269 20, 81, 120, 351, 352 s. 4 . 202 .s, 7 . 133 8. 9 . 203 8. 10 202, 203 .ss. 11, 12 204 3. 13 46, 206 s. 14 . 208 20 & 21 20 & 21 21 & 22 21 & 22 21 & 22 22 & 23 23 Vict, 23 & 24 23 & 24 23&24 24 & 25 24 & 25 24&25 24&25 25 &26 25&26 25 & 26 26 & 27 26&27 27&28 27 &28 27 & 28 28&29 28&29 29&30 30&31 30 & 31 30&31 31 Vict. 31 & 32 31 & 32 31 &32 32&33 32&33 32&33 Vict. c. Vict. 0, Vict. c. Vict. 0. Vict. c. Vict, c, c. 7 Vict, c, Vict. c. Vict. c. Vict, c, Vict, c, Vict. c. Vict, c, Vict. Vict. Vict. Vict, Vict. Vict. Vict. Vict. c. Vict, c, Vict. c. Vict, c, Vict. c. Vict. c. Vict. c. c. 86 Vict. c. Vict. c. Vict. c. A" let. c. Vict. c. Vict. c. PAGE 392, 393 . 176 . 263 . 139 . 157 68, 391 . 157 . 12 68, 277 . 155 . 139 39, 297 . 296 242, 243, 267, 290 63 142,146,343 77 . 85 27 79 90 35 38' 126 127 95 96 97 100 88 89 41 125 75 95 112 60 86 69 124 131 144 54 119 129 11 46 62 84, 154 . 159 . 98 . 371 . 328 330, 332 . 12 272, 327 110,111 96 32 & 33 Vict. c. 32 & 33 Vict. c. 24, 34 32 & 33 Vict, c 33 Vict. c. 10 33 & 34 Vict. c. 33 & 34 Vict. c. 33 & 34 Vict. c. 142 160 150 150 11 95 142 142 18 9, 297, 298, 299 68 384,386,387 71, ss. 6, 13 213 — , s. 16 . 214 S.S. 23, . . 67 213 214 17 194, 214 214 ... 198 14 114,187,188 23 . . 242 28, SS. 4-15 15.5, 230 — , s. 18 . 154 s. 126 INDEX TO STATUTES CITED. XIX rAGK 67 384 177 149 173 33 & 34 Vict. c. 97 ' 133, 23G, 237, 395 33 & 34 33&34 33&34 7,10 33&34 Vict. c. 35 . . Vict. c. 49 . . Vict. c. 93, ss. 1-5, Vict. c. 93,' s. io . . s. 12 . 34 Vict. 34&35 34 & 35 34&35 34 & 35 35 & 36 36&37 c. 17 . . Vict. c. 31 Vict. c. 56 Vict. c. 74 Vict. c. 79 Vict. c. 93 127 229 278 124 62 89, 90 Vict. c. 66, s. 24 201,215 •, s. 25 18, 26, 36&37 37&38 37&38 37 & 38 37«&38 38 & 39 38 & 39 53,81,117,144,170,212, 217, 251, 263, 343, 397 Vict. c. 66, s. 34 . 116 Vict. c. 50 Vict. c. 57 Vict, c, 62 Vict. c. 78 Vict. c. 72 Vict. c. 77, s. 10 . __, Order 1 174, 175 . 202,250 15, 166, 167 . 51, 383 . . 134 11 278 38 & 39 Vict. c. 7' 209 Order 8 „ 9 „ 13 .. 16 PAGE 208 115 348, 353 177, 210 364 156. 2 183 38 & 39 Vict. c. 79 38 & 39 Vict. c. 91 38 & 39 Vict. c. 92 39 & 40 Vict. c. 48 39 & 40 Vict. c. 81 ,, 17 „ 19 349, 362, 408 Ord. 22 210 „ 29 353 „ 30 196, 197, 312, 407 Ord. 31 406 „ 36 354, 404 „ 37 394, 408, 410 „ 38 408 „ 42 115 „ 52 276 Appendix 81 . . 155 . 152, 153 . 56, 58, 59 . . 374 141,413 EDITIONS OF TEXT BOOKS REFERRED TO. Addison on Torts 4tb Edit Archhold on I>andlord and Tenant 2nd Edit Arnonld on ^larine Assurance 4th Edit Benjamin's Sale of Personal Property 2nd Edit Broom's Commentaries 5th Edit Broom's Legal Maxims 5th Edit Brown's Law Dictionary 1st Edit Bunyon on Life Assuranc 2nd Edit Byles on Bills 12th Edit Chitty on Contracts 10th Edit: Griflith's Judicature Acts 1st Edit Mayuu's Treatise on Damages 2nd Edit Phillips on Lunacy 1st Edit: Powell's Principles and Practice of the l^aw of Evidence 4th Edit Prideaux's Conveyancing 7th Edit Smith's Leading Cases 7th Edit: Smith's Mercantile Law 8th Edit Snell's Principles of Equity 3rd Edit: Starkie on Slander and Lilul 3rd Edit Stoiy on Agency 7th Edit William's Principles of the Law of Personal Projterty Tth Edit on on on on on on on on on on on on on on on on on on on on on PRINCIPLES OF THE COMMON LAW. INTEODUCTION. The origin of the Common Law of England, though it The origin cannot be now certainly and surely found, beinof lost °^*^f ^°™' m antiquity, may probably be set down to the custom and usages in the first instance of the early Britons, afterwards amended and increased by those of the Eomans and other nations who spread themselves over the country, and being originally of a narrow and limited kind, increasing according to the necessities of mankind, until, in the present highly artificial state in which we live, it has assumed such wide dimensions as to make it difficult to believe in its early foundation. The term " common law " would seem, according to Blackstone (a), to have originated in contradistinction to other laws, or more reasonably as a law common and general to the whole realm, and used in a wide and large sense, comprehends now not only the general law of the realm but also that given out by statute ; and it may be divided as of two kinds, viz. : (1) The lex non seripta, or unwritten law ; and (2) The lex scrijpta, or written law. With regard to the former division in the very ancient times, in consequence of the utter ignorance of the mass of the people, the laws could not be, and were not, reduced into writing, but were to a certain extent transmitted from age to age by word of (rt) 1 Bl. Com. 67. "1 INTRODUCTION. mouth. But this is not all that is included in the \ex non seripta, which term is indeed used in contradistinc- tion to the statute law, which forms the actual lex seripta, for, as is stated by Blackstone (h), now the monuments and records of our legal customs are con- tained in the books of the reports of the judges from time to time, and in the treatises of the different writers, commencing at periods of high antiquity and continued until the present time. With regard to the latter division, viz. the hx seripta, this, as has been said, comprises the statute law of the realm. In the earlier times but little attention was given to the laws, and, indeed, from the essentially warlike nature of the people it was not the greatest requirement ; but gradu- ally, as civilization advanced, the lex non scriptta was found insufficient, or indeed contrary, sometimes, to the benefit of the country, and the direct intervention of the legislature was required to amend, alter, and vary, or in some cases to simply declare, the law when doubts had arisen on it. As civilization has increased, and age after age has become more and more artificial, so the statute law has increased, as is evidenced by the multitude of the Acts of Parliament necessary to be referred to by the student of our laws. As to the It might be interesting, and perhaps useful, to here advantages enter into the consideration of the relative advantage and disadvantage of a code of laws, but such a discus- sion would be beyond the scope of a work like the present, and the subject must be dismissed with a few remarks. True, there is in our present system of laws the disadvantage, that it involves to master it deep and intricate study, and requires to be traced back to the earliest times to understand various reasonings ; but, on the other hand, though a code would do away with this necessity of historical research, yet it would present law in a much more inflexible state than at (h) 1 Bl. Com. 63. INTRODUCTION. present, and as no code could be perfect, it is to be feared tbat doubts of construction and the like would arise, and perhaps, therefore, to leave things on their present foundation would be well. The term " common law " has also been used in con- Common law tradistinction to equity jurisprudence, which is of later guj.helf fi-o^^ growth, and comprehends matters of natural justice equity. (being other than matters of mere conscience), for which courts of law gave no relief, or no proper relief. In the opinion of the author this distinction between common law and equity must always exist, for although the Judicature Acts of 1873 and 1875, to a certain extent, fuse law and equity, and though also the rules of equity are to govern where they have clashed with the rules of law (as will be frequently noticed in the course of the following pages), yet as certain matters were formerly strictly the subjects of cognizance in the common law courts and others in the Court of Chan- cery, so the like matters respectively are and will be commenced and carried on in the analogous division of the present High Court of Justice. It is important to have a clear and correct idea of Of the nature the nature of a person's rights which will entitle him jfght'wh'ich to maintain an action for their infringement. The two wni entitle main divisions of the present work are into Contracts tahllnSon. and Torts. In the case of the infringement of any person's legal rights, i.e. if a valid contract be broken, or a tortious act committed, the other party to the con- tract, or the person against whom the tort was com- mitted, has a right of action in respect of such breach of contract or tortious act, and even though he suffers no substantial damage, yet he has his right of action. The rule upon this point is, that Injuria sine damno injuria sine will entitle a person to maintain an action, which, '^'"'*"°- plainly expressed, means that when a person has suf- fered what in the eyes of the law is looked upon as a B 2 1 INTRODUCTION. legal injury, he must have a corresponding right of action, even though he has suffered no harm. This is well illustrated by the widely known case of Ashhy v. White (c), which was an action against a return- ing officer, for maliciously refusing to receive the plaintiff's vote on an election of burgesses to serve in Parliament, and it was held that the defendant having so maliciously refused to receive the plaintiff's vote, although the members for whom he wished to vote were actually elected, and therefore he suffered no damage, yet he had a good right of action, for he had a legal right to vote, and that right was infringed. On the other hand, there are many cases in which a person, although he suffers damage by the act of another, yet has no right of action, because there has heen no infringement of what the law looks upon as a legal right, and this is expressed by the maxim, that T'amnumsine Damnum sine injuria will not suffice to maintain an action. Thus, in an action of seduction, unless loss of service by the plaintiff is proved, the action cannot be maintained, for though the plaintiff may have suf- fered damage without the loss of service, yet he has not sustained what in the eyes of the law is looked upon as an injury. The best instance, however, on this point, is perhaps found in the principle that a person may deal with the soil of his own lands as he thinks fit, so that if he digs down and thus deprives his neigh- bour of water that would otherwise percolate through the land, to his great detriment, yet this does not constitute the invasion of a legal right, and will not sustain an action {d). It is merely Damnum sine injuria. However, in the words of Mr. Broom, in his ' Commentaries on the Common Law,' " in the vast majority of cases which are brought into courts of (c) 1 S. L. C. 251 ; Lord Raymond, 938. Id) Acton V. Blundell, 12 M. & W. 324; Chasemorcv. Richards, 7 II. L. C. 349. ■ ria. INTRODUCTION. justice, both damnum and injuria combine in support of the claim put forth, the object of the plaintiff usually being to recover by his action substantial damages " (e). Having, therefore, in these few remarks, endeavoured to introduce the student to the subject of common law, and the nature of the legal right in respect of which a person has a remedy, let us proceed to our first chief subject, viz. that of contracts. (e) Broom's Corns. 112 ; and see generally upon the subject discussed above, Broom's Corns. 78-112. OF THE DIFFERENT KINDS OF CONTRACTS, PART I. OF CONTRACTS. CHAPTEK I. OF THE DIFFERENT KINDS OF CONTRACTS, THEIR BREACH, AND THE RULES FOR THEIR CONSTRUCTION. Definition of a A CONTRACT may be defined as some obligation of a legal contract, and mature — either by matter of record, deed, writing, or sions of word of moiith — to do, or refrain from doing, some act. contracts. Contracts are usually divided as of three kinds, viz. : — 1. Contracts of record, i.e. obligations proceeding from some court of record, such as judgments, recog- nizances, and cognovits. 2. S2')ecialties, i.e. contracts evidenced by writing, sealed and delivered. 3. Simple contracts, i.e. those not included in the foregoing, and which may be either by writing, not under seal, or by mere word of mouth. Contracts may also be divided as to their nature into — 1. Express contracts, i.e. those the efiect of which is openly expressed by the facts ; and 2. Impjlied contracts, viz. those which arc dictated by the law, as, for instance, if a person goes into a shop and orders goods, his contract to pay their proper value is implied. THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. 7 Again, contracts are divided, with reference to the time of their performances, into — 1. Executed contracts, and 2. Executory contracts. Having, therefore, three different divisions of con- Contracts of tracts, let us proceed to consider each of such divisions J^XnicaUy"" ^ separately ; and as to the first division, the most impor- the most tant kind of contracts, technically speaking, are contracts "^^'°^ of record, they proceeding from some court of record, but in a practical sense they may be set down as the least important, for, with the exception of judgments, they are not of constant occurrence, and even judg- ments, considered in the light of contracts simply, are not entitled to much discussion, although, considered in other ways, they are of great importance. As we have given as instances of contracts of record, judg- ments, recognizances, and cognovits, it will be well at the outset to have a clear understanding of what each of these are, and then consider the peculiarities of contracts of record generally, but yet mainly with reference to judgments as being the only contracts of record that ordinarily or usually occur. A judgment is defined to be the sentence of the law Definition of pronounced by the Court upon the matter appearing ''•'"' ^™*^° ' from the previous proceedings in the suit (/). It is obtained by issuing out a writ of summons, on which the defendant either makes default, whereby judgment is awarded in consequence of such default, or the case is tried and on a verdict judgment awarded in accord- ance with it. A recognizance is an acknowledgment upon record Definition of a of a former debt, and he who so acknowledges such debt recoffuizance. (/) Brown's Law Diet. 198. OF THE DIFFERENT KINDS OF CONTRACTS, to be due is termed the recognizor, and he to whom or for whose benefit he makes such acknowledgment is termed the recognizee. It is very similar to a bond, but whereas a bond creates a new debt, a recognizance is merely an acknowledgment upon record of an antece- dent debt (gi). Definition of a cognovit. Essentials as to execution. A cognovit is an instrument signed by a defendant in an action actually commenced confessing the plaintiff's demand to be just, and empowering the plaintiff to sign judgment against him in default of his paying the plaintiff the sum due to him within the time mentioned in the cognovit (h). By 1 & 2 Yict. c. 110, it was pro- vided for the protection of ignorant persons, who might be persuaded into executing a cognovit, that it must be attested by an attorney, and this protection has been still further extended by 32 & 33 Vict. c. 62 (t), which provides that " after the commencement of this Act (/.•) a warrant of attorney to confess judgment in any per- sonal action, or cognovit actionem, given by any person shall not be of any force unless there is present some attorney of one of the superior courts on behalf of such person expressly named by him, and attending at his request, to inform him of the nature and effect of such warrant or cognovit before the same is executed, which attorney shall subscribe his name as a witness to the due execution thereof, and thereby declare himself to be attorney for the person executing the same, and state that he subscribes as such attorney ;" and also (/) that " if not so executed it shall not be rendered valid by proof that the person executing the same did, in fact, understand the nature and effect thereof, or was fully informed of the same." In the foregoing enact- (fl) Brown's Law Diet. 303. ()<) Ibid. 67. (0 Sect. 24-. (/i) 1st January, 1870. (I) Sect. 25. THEIE BREACH, AND RULES FOR THEIR CONSTRUCTION. I nient it will be noticed that a warrant of attorney is mentioned, being placed under the same provisions as to execution as is a cognovit, and as the two are some- times confused by students it may be well to point out that there is this difference between them, viz, that a Differences cognovit is a written confession of some existing action, between a " . . , . warrant of whilst a warrant of attorney is simply a power given attorney and to an attorney or attorneys to appear in some action ^ cognovit, commenced, or to be commenced, and allow judgment to be entered up. Cognovits require to be filed in the Queen's Bench Division of the High Court of Justice within twenty-one days after execution (m) ; and the same provision is made as to warrants of at- torney (n), and also as to judge's orders made by the consent of a defendant in a personal action, whereby the plaintiff is authorized forthwith, or at any future time, to sign or enter up judgment, or to issue or to take out execution (o). Now as to the peculiarities of contracts of record Of the pecu- generally, but mainly with reference to judgments. TOntracts^of record, par- 1. Being of the highest nature of all contracts, they ju'dgments. have the effect of merging either a simple contract or a -[_ Merger. contract entered into hy deed {a specialty). — It is a prin- ciple, not only with regard to contracts but also estates, that a larger interest swallows up or extinguishes a lesser one. If a person has an estate for years, and afterwards acquires an estate in fee simple, the former estate for years is lost in the greater estate in fee, and so here, if there is an ordinary contract by parol in writing or by deed, and judgment is recovered on it, the judgment merges the rights on the former contract, and the person's rights henceforth are on the new and higher contract, the judgment. (m) 32 & 33 Vict. c. 62, s. 26. (n) Ibid. (o) Ibid. s. 27. 10 OF THE DIFFERENT KINDS OF CONTRACTS, 2. Estoppel. 2. They have the effect of estopping the iMrties to them. — Estoppel lias been defined as a term of law whereby a person is stopped or hindered from denying a matter already stated {p), and it is because of the high nature of contracts of record that whilst they remain in exist-^ ence they are conclusive, for no one can aver against a record, and this has been stated by Lord Coke, as fol- lows : " The Kolls being the records or memorials of the judges of the court of record, impart in them such uncontrollable credit and verity as they admit of no averment, plea, or proof to the contrary " {q). This is well illustrated by a somewhat recent case, in which the plaintiff was formerly clerk of the peace, and having been ; dismissed, brought an action against the defendant, his ' successor in the office, to try his right to certain fees of i office. It appeared that the justices had at quarter sessions found that the plaintiff had been guilty of contumaciously refusing to record an order that had been made by them as he should have done, and there- fore they had dismissed him from his office, which they were justified on such a fact in doing. The court here decided that the plaintiff' was estopped in this action from denying the validity of the order so made at quarter sessions (r). Duciiessof The leading authority generally referred to on the Kingston's point of cstoppel by matter of record is the Duchess of Kingston'' s Case (s), which goes to shew that a judg- ment is only a conclusive estoppel where the same matter is directly involved in it, and not where it is only incidentally involved, and also that, even although it might be otherwise a conclusive estoppel, yet that it may always be avoided by shewing fraud or col- lusion. (;/) Brown's Law Diet. 144. See also poot, p. 14. (7) 1 Inst. 260. (r) Wildes V. Russell, I.. li. 1 C. I'. 722. (s) 2 S. L. C. 760 ; Bui. N. P. 244. THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. 11 3. They require no consideration. — This peculiarity 3. As to results from the preceding one of estoppel ; the want of cons'^^eration. consideration can be no defence or objection to proceed- ings on a judgment or other record, which, as we have seen, the party is estopped from denying. 4. A judgment had some jiriorittj in payment. — UntiH. As to very lately, in the administration of an insolvent estate paj-^ent. in equity, a judgment creditor stood first in the order of creditors, provided his judgment was duly registered under 1 & 2 Vict. c. 110 (presently noticed under the fifth peculiarity of these contracts), which was an im- portant advantage if the estate was insufiicient to pay every one {t). The Judicature Act, 1875 {ii), however, now does away with this peculiarity, by providing that the same rules shall prevail as to the respective rights of secured and unsecured creditors as are in force in bankruptcy ; that is to say, that all debts shall rank 2Mri passu. 5. A judgment constituted a charge on the lands of the 5. Astochaig- judgment debtor {x). — This, again, is a peculiarity of'°° the past, and the following is a short summary of the past and present laws upon the subject (y) : — By 13 Ed. 1, c. 18, half a judgment debtor's lands could be taken in execution under a writ of elegit. By 29 Car. 2, c. 3, sect. 10, execution could also be issued to the above extent on judgments entered up (t) And lately this advantage did not only apply to English judgments, but also to Irish judgments and Scotch decreet, if registered here, it being by 31 & 32 Vict. c. 54. s. 1, provided that, if registered here, they shall have the same force and effect as if original judgments of this country. (li) 38 & 39 Vict. c. 77, s. 10 (instead of sect. 25, sub-sect. 1 of the Judicature Act, 1873). (x) This was recently extended to Irish judgments and Scotch decreet if registered under 31 & 32 Vict. c. 54. See note (t). (!/) The law of judgments as afiecting lands belongs more properly to the subject of conveyancing and real property, and, for fuller information than is contained in the few remarks above, the student is referred to the dissertations in Prideaux's Conveyancing. 12 OF THE DIFFERENT KINDS OF CONTRACTS, against a cestui que trust of freeholds, provided they were vested in a trustee in fee simple, and he was duly seised of them. By 1 & 2 Yict. c. 110, a judgment was made a charge upon the whole lands of a judgment debtor, of what- ever nature, hut judgment was not to affect purchasers until registered in the name of the debtor. By 2 & 3 Vict. c. 11, all judgments, to so bind, must be re-registered every five years. By 23 & 24 Vict. c. 38, no judgment to be entered up after the passing of that Act (July 23, 1860), was to affect any lands, unless a writ of execution was issued and registered and put in force within three calendar months from the time of execution. And now, by the 27 & 28 Vict. c. 112, the statute in force upon the subject at the present day, it is provided that no judgment to be entered up after the passing thereof (July 29, 1864), shall affect any lands until the same shall have been actually delivered in execu- tion by virtue of a writ of execution or other lawful authority. 6. As to proof. 6. TJieij prove themselves — which means that when necessary to prove a contract of record the mere pro- duction thereof is sufficient proof, and this is always their proper mode of proof; so that when there is an issue of nul tiel record (no such record), either the record itself must be produced, or it may be proved by exem- plification under the great seal, or by an examined or sworn copy (z). The two remaining kinds of contracts under this division are specialties and simple contracts, and these (z) Powell's Evidence, 314. THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. 13 are of ordinary practical and constant occurrence, and therefore of very miicli more importance to the student than contracts of record. A specialty or contract under seal is termed a deed because of the peculiar solemnity attending its execution, it being not only signed (a), but also sealed and delivered, whilst a simple contract is either by parol, or at most by writing not under seal, and it is from the point of the supposed additional solemnity attending the execution of deeds or speci- alties that we may trace the numerous distinctions Distinctions which exist between them on the one hand, and simple Ij'Ig^'^JJJ'ig^ contracts on the other. These distinctions are mainly and simple f. Ti contracts. as follows : — 1. As to the execution. — Here, as just stated, the i. As to essential formalities to be observed on the execution ^^'^^^ '""' of a deed are sealing and delivery, whilst a simple contract may be even by word of mouth, and if writing is used, signature only is necessary. One of the essentials, too, of the deed being delivery, a person may execute a deed as an escrow, i.e., " so that it shall Escrow. take effect or be his deed on certain conditions " (b), by delivering it to some third person, and then it will not take effect until the happening of the condition, though on the condition being performed it will relate back to the original date of execution. A deed cannot be de- livered as an escrow to the other party to it, it must be to some third person, but it may be delivered to a solicitor acting for all parties (c). 2. As to merger. — The principle of merger has al- 2. As to ready been explained (d), and it may be defined as an merger. operation of law whereby a security or estate is swal- lowed up or lost in a greater (e). It has already been (a) There is some doubt whether signing is actually necessary to the validity of a deed. (6) Chitty on Contracts, 4. See also Brown's Law Diet. 141. (c) MiUership v. Brooks, 5 H. & N. 797. ((f) Ante, p. 9. (e) See also Brown's Law Diet, 233. 14 OF THE DIFFERENT KINDS OF CONTRACTS, noted that the effect of a record will be to merge any contract respecting the same matter not by record, because of its higher nature ; and so here, a deed, though of a technically less important nature than the record, and liable to be merged in it, yet in its turn, being more important than a simple contract, will cause a merger of that. 3. As to 3. As to eatoppel. — This doctrine has already been estoi.pel. touched upon in its bearing on contracts of re- cord (/) ; but in addition to the definition given there of it, it may be well to note here Lord Coke's definition, which is perhaps a better one when the term is applied to estoppel otherwise than by matter of record. His definition of it is, " where a man is I concluded by his own act or acceptance to say the truth " {g). It has been noted that a record will estop the parties to it and those claiming under them, and so in a deed the doctrine of estoppel applies, though generally speaking it does not in a simple contract. Thus, if a man executes a deed, stating or admitting in that deed a certain fact, he is precluded from denying that fact, the reason being the solemnity of the deed ; whilst in a simple contract the person may shew the con- trary of what he has there j)ut his name to. But in dis- cussing the doctrine of estoppel, what was decided in Collins V. the leading case of Collins v. Blantem (h) must be noticed, viz. that though a person is estopped from denying what he has stated in a deed, yet he may set up the illegality or fraud of the instrument. In that case the plaintiff sued on a bond executed by certain parties, of whom the defendant was one, the obligation of which was £700 conditioned for payment of £350, The defendant pleaded the following facts : Certain parties were prosecuted by one John Kudge, and pleaded (/) Ante, p. 10, (7) Co. Litt. 352, a. (h) 1 S. L. C. 369; 2 Wilson, 341. THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. I'J not guilty, and, according to arrangement, the plaintiff gave his promissory note to the prosecutor, John Eudge, he to forbear further prosecuting, and as part of the arrangement, the bond on which the plaintiff sued was executed to indemnify him. Now the facts shewed illegality in the whole matter, for it was the stifling of a criminal prosecution ; but had the doctrine of estoppel applied, the defendant would have been pre- cluded from setting it up. It may be noticed on this point of estoppel, that if a person in the body of a deed admitted having received the consideration money, at law he was estopped from setting up that he had , not received it ; but in equity he might always do so, j otherwise the doctrine of the vendor's lien for unpaid j purchase-money could not well have existed. Now, as - the Judicature Act, 1873 (i), provides that where the rules of law and equity clash, the latter shall prevail, the consequence will be that in such a case a person will now always be able to do what he could, as above stated, have formerly done in equity. Estoppel, how- ever, besides being by record or deed, may also in some cases be in pais, i.e., by the conduct of the parties ; e.(/., where an infant, having made a lease, accepts rent after he comes of age, he will be estopped from denying its validity (j). 4. As to co7isideration. — A valuable consideration 4. As to may be defined as some benefit to the person making ^""f"?""'"^*'""' •^ . . i o Dennition of a the promise, or a third person, by the act of the pro- valuable misee, or some loss, trouble, inconvenience to, or charge ^°°'*"^*'i"'^^'""- imposed upon the person to whom the promise is made (k). It is an essential and unflinching rule that all simple contracts require a valuable consideration ; if they have no consideration, or a merely good con- (0 Sect. 25 (11). (j) See hereon as to effect of 37 & 38 Vict. c. 62, post, p. 167, note (a). (/;) This definition is gathered from what is stated as to the sufficiency of th« consideration in Chitty on Contracts, p. 19. 1^ OF THE DIFFERENT KINDS OF CONTRACTS, sideration, which is such as natural love and affection, they -will not be binding, and no action will lie for their breach (/) ; whilst a deed will be perfectly valid and binding with a merely good consideration, or with no consideration at all (m). This distinction plainly arises from the fact of the additional solemnity and importance of a deed. A voluntary It must not, liowcvcr, from this be taken by the eveJy*rr°peit studcnt for granted that a voluntary deed is in every as good as a respcct as good as a deed founded on valuable con- orvaiuabie sidcratiou. All that is meant is that as between the consideration, parties it is uo objection to the validity of a deed, and no consequent answer to an action brought upon it, that there was no consideration for the benefits con- ferred or the obligations entered into by it, as it would be in the case of a simj)le contract. But even a deed entered into without consideration stands on weak ground, for there are three ways in which it may possibly be affected on account of its want of con- sideration. 13 Kiiz. c. 5. The statute, 13 Eliz. c. 5, provides that all gifts and conveyances of either chattels or land, made for the purpose of defeating, hindering, or delaying cre- ditors, are void against them unless made bond fide ni^on good (which means here valuable) consideration, and bond fide to some person without notice of the fraud. The mere fact of any conveyance or assignment being voluntary will not necessarily render it bad under this statute ; but the fact of its voluntary nature will attach suspicion to it, and every such voluntary instru- ment is therefore liable to be set aside under this statute. (/) L'i'inplei(]h V. liraithwaite, 1 S. L. C. 141 ; Iloli.irt, 105. (rft) An imjiortant exfeption to this rule arises in the case of contract in restraint of trade, which even though by deed must have a valuable consi- deration. THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. 17 By 27 Eliz. c. 4, it is provided that all voluntary 27 Eiiz. c. 4. conveyances of land shall be void against subsequent purchasers for valuable consideration with or without notice ; the effect of vdiich is, that, although a person may make a perfectly good voluntary conveyance to another of his land, yet if he afterwards convey those lands for value, even although the latter person knows of the prior voluntary conveyance, he will take in preference to it («). By the Bankruptcy Act, 1869 (0), any voluntary Bnnkruptcy settlement made by a trader is void if he becomes a ^'^*' ^^'^^• bankrupt within two years ; and if he becomes bank- rupt after that time, but within ten years, it is also void, unless the parties claiming under such settle- ment can prove that the settlor was at the time of making it able to pay all his debts without the aid of the property comprised in such settlement. These three points, then, are manifest disadvantages under which a deed created without consideration may stand, although, as has been stated, no consideration is necessary to a deed to render it valid between the parties. 5. As to limitation. — A simple contract is barred 5. As to after six years (p) ; a deed after twenty years (q). ™' ^ '°°' 6. As to their extent. — A deed, if the heirs were 6, As I0 bound, and the heir had assets by descent, bound him, ^^ ^"^ ' whilst a simple contract did not ; so that this distinc- tion between a specialty and a simple contract was formerly one of great importance, for a simple contract creditor had no right to come upon the real estate descended to the heir for part of his debt. By 3 & 4 3 & 4 Wm. 4, c. 104. (n) See further hereon Snell's Principles of Equity, 66. (o) 32 & 33 Vict. c. 71, s. 91, (p) 21 Jac. 1, c. 16. (7) 3 & 4 Wm. 4, c. 42. See r>2. (h) See hereon also post, cli. vi. jip. 164, 1G.3. THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. 21 a matter of considerable importance. In tlie first place, it must be observed, that while the jury decide on questions of fact, it is for the court to put the correct construction on any instrument ; and, to ensure uni- formity in construction as far as possible, certain rules of construction have been formed and handed down from time to time. These rules are stated by Mr. Chitty in his work upon Contracts very fully (c), and the most important of them are as follows : — ■ 1. Every agreement shallhave a reasonahh construction i. Agreements according to the intentio7i of the jMrties ; e.g., if a person i-easonTbiy.^ ""^^ borrows a horse it will be considered a part of the agreement that he shall feed it during the time it re- mains in his possession. This is a great and important rule of construction, but upon it two points must be borne in mind : " first, that it is not enough for a party to make out a possible intention favourable to his view, but he must show a reasonable certainty that the in- tention was such as he suggests ; and, secondly, that all latitude of construction must submit to this restric- tion, viz., that the words and language of the instru- ment will bear the sense sought to be put upon them ; for the court cannot put words in a deed which are not there, or put a construction on the words of a deed directly contrary to the plain sense of them " {d). 2. Agreements shall he construed liherallj/ ; e.g., the 2. Agreements word men used in a contract may often be held to |[|,g|;.,]['!^''*^' "^'^ include both men and women (e). 3. Agreements shall he construed favourably ; which 3. Agreements means that such a construction shall be put that, if favourabiV"^ possible, they may be supported : thus, if on an instru- (c) See Chitty on Contracts, 70-96, from which pages the following remarks on the construction of contracts are mainly gathered. (cT) Chitty on Contracts, 72, (e) See, as to the liberal constructicn of certain words in statutes, 13 & 14 Vict. c. 21, s. 4. 2'J OF THE DIFFEKENT KINDS OF CONTRACTS, meut it is possible to put two constructions, one of which is contrary to law and the other not, the latter shall be adopted ; and it is npon this principle that words sometimes have different meanings given to them : thns, the word " from " is prima faeie exclusive, but it always depends on the context ; and the words " on " or " upon " may mean either before the act to which it relates, or simultaneously with the act done, or after the act done ; and the word " to " may mean " towards " (/). 4. Wortls .ire 4. Wovds are to he understood in their plain, ordinary, to be under- (^^^^ p)opular setise ; but if words have by any usage of ordinary trade or custom obtained a particular signification, then that meaning will generally be put upon them. meauiner. 5. The con- 5. The construction shall he put np)on the entire instru- struction shall ^yi^r^i^ gQ fji^f q^q 2)art may assist another ; and it is upon entire in.stru- this rulc that, to further the evident intention of the "i*^'"*- parties, words used in a contract may be transposed ; and again, that w^here there are general words follow- ing after certain particular words, they will be con- strued as only ejusdem generis with the particular words. This rule also has to be taken subject to the Fais'i demon- maxim Falsa demonstratio non nocet, the meaning of stratta non -vvhich maxim has been well stated to be, " that if there nocet. . ' is in the former part of an instrument an adequate and sufficient description showing with convenient certainty the subject-matter to which it was intended to apply, a subsequent erroneous addition will not vitiate that description " (g). 6. The lex loci 6. A contract is to lie construed according to the law of contractus K io ^j^Q Country where made, except ivhen the parties at the prevail unless /.t. 7 . 77 • t rr the parties time of making the contract had a view to a dijjerent made their country. — Fiom this it follows that if a contract is contract with •' reference to . _ _ another country. (/) Chitty on Contracts, 78. (7) Ibid. 85. THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. 23 made anywhere out of England, and an action is brought on it here, it will be material to give evidence to show what the law of the place where it was made is as to it (h) ; and with regard to the last part of this rule, what is meant is, that although the lex loci con- tractus generally applies, yet if the parties have at the time in contemplation the performance of the contract in another country, there the law of that country will apply, €.(/., if a bill of exchange is executed here but made payable abroad. And notwithstanding the rule that the lex loci con- But in bring- tracfus is to govern, yet, although a contract is made !?= ^" ^,'^*'."° . o ' J ' _ -T _ the lex Inci fori abroad, as regards the proceedings to enforce it, the lex govern?. loci fori (that is, the law of the country where the action is brought) governs ; so that, for instance, al- though a contract is made abroad in a country where the period of limitation for bringing the action is different to what it is here, yet, if the action is brought here our Statute of Limitations will bind. 7. If there are tivo repugnant clauses in a contract, the i. ot two re- first is the one to he received (i). r'.gnant claims '' ^ •' the tirst IS to be i-eceived. 8. The construction shall he tal:en most stronghj against 8. The con- tlie grantor or contractor ; but this is a rule not to be f*^^'"'^*'°'^ '^ *" ,,. ■^ p ^ ^ i "^ taken resorted to until alter the other rules of construction against the fail, and in some cases it will not apply at all. grantor. 9. Parol evidence is never admissihle to vary or con- 9. Parol evi- tradict a ivritten contract, hut it is admissihle to explain '^^J^^"^^'^^ ^'"^- -. jy 1 1 1 1 • 1 missible to tn the case oj a latent, though not in the case of a iMtent contradict a amhiguitij. — A patent ambiguity is one appearing on conT-^"t the face of the instrument ; a latent ambiguity is one not so appearing, but raised by extraneous evidence ; (/i) Per Lord Eldon in Smale \. Bohcrts, 3 Esp. 163, 164. (0 It may be noted that the contrary is the rule in the case of .h will, for as a subsequent will revokes a former, so a later clause will have effect over an earlier. 24: OF THE DIFFERENT KINDS OF CONTRACTS, DiiTerence be- find the distinction between these two cases as to the twoen :\ pnteut admissibility of parol evidence has been so well stated ambiguity. by Lord Chief Justice Tindal, that the author cannot refrain from here giving his remarks, although some- what lengthy. His lordship stated as follows : — The distinction " The general rule I take to be that, where the words •'^'" ''\" '"^^ of any written instrument are free from ambiguity in missibilitv of •' . 1 J parol evidence themselvcs, and where external circumstances do not 'vitl^nVand H^^ Create any doubt or difficulty as to the proper applica- latent anibi- tion of thosB words to claimants under the instrument, bl^t'oVrrhlef 0^ ^^^^ subject-matter to which the instrument relates. Justice TinJai. such instrument is always to be construed according to the strict, plain, common meaning of the words them- selves ; and that, in such case, evidence dehors the instrument for the purpose of explaining it according to the surmised or alleged intention of the parties, is utterly inadmissible. The true interpretation, however, of every instrument being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered an exception, or, perhaps, to speak more precisely, not so much an exception from, as a corollary to, the general rule above stated, that where any doubt arises upon the true sense and meaning of the words them- [ selves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained 1 by evidence dehors the instrument itself; for both ' reason and common sense agree, that by no other means can the language of the instrument be made to speak the real mind of the party. Such investi- gation does of necessity take place in the interpre- tation of instruments written in a foreign language ; in the case of ancient instruments ; in cases where terms of art or science occur ; in mercantile contracts, which in many instances are in a peculiar language employed by those who are conversant in trade and commerce ; and in other instances in which the words, THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. 25 besides their general common meaning, have acquired, by custom or otherwise, a well-known peculiar, idiom- atic meaning, in the peculiar county in which the party using them was dwelling, or in the particular society of which he formed a member, and in which he passed his life " (/.). When a contract has once been reduced into writing, Goss v. Lord evidence cannot be given to show that the parties ^'y^"'^- at the time agreed by parol to some other term or ' stipulation which should be part and parcel of the contract, for to admit any such evidence would be in effect to vary the written instrument (/). Of course if the contract is not one which is required to be in writing, there is nothing to prevent the parties subse- quently making some fresh stipulation, for that will simply be making to that extent a fresh agreement. In addition to the foregoing rules, it may be well to mention a few other points on the construction of con- tracts. In mentioning the subject of implied contracts, we have already stated that where there is some well- known and established usage or custom in a trade, persons may be taken in their contracts to have had that in view at the time, and the contract may be con- strued on that footing, provided, of course, that the custom or usage does not clash with the contract ; for it is an imperative principle of construction that when- ever there is an implied contract, and the parties have also expressly contracted on the point, the maxim Ex- pressumfacit cessare taciturn will have effect (m). When a contract is to be completed by a certain day, as to when the rule at law formerly was that time was of the ^'"^^ '"^ °*" '^^ GSSGnCG of t\ essence of the contract ; but in equity it was never so, contract. {k) Shore V. Wilson, 9 C. & F. 355, 365. Quoted as above in Chitty on Contracts, 100, 101. (/) Goss V. Lord Nugent, 5 B. & A. 58. (?/i) Ante. p. 19, and see hereon Wigglesworth v. Dallison, 1 S. L. C. 598 ; Douo-l. 201. 26 OF THE DIFFERENT KINDS OF CONTRACTS. unless expressly stipulated, either at the time of the contract or by notice given afterwards, or it appeared to be so intended from the nature of the property, as where a reversion was being sold, as it might at any moment, through the falling in of the life estate, become an estate in possession. The rule of equity on this point now prevails in all branches of the High Court of Justice (?i). Meaning of The term " month " in a contract signifies a lunar month, except in the case of mercantile contracts, e.g., bills of exchange, when it signifies a calendar month. In a statute passed before 1851, it means, 'prima facie, a lunar month, but after that time a calendar month (o). (») Jud. Act, 1873, s. 25 (7). (0) 13 & 14 Viot. c. 21. s. 4. the term '' month.' 27 CHAPTER II. OF SIMPLE CONTRACTS, AND PARTICULARLY OF CASES IN WHICH WRITING IS REQUIRED FOR THEIR VALIDITY, A SIMPLE contract may be defined as an agreement Definition of a relating to some matter, and either made by word of j|"|ff mouth or writing not under seal ; and they have been said to be called simple because they subsist by reason simply of the agreement of the parties, or because their subject-matter is usually of a more simple or of a less complex nature (2;). Simple contracts have four great essentials, which are — (1) Parties able to contract ; pour essentials (2) Such parties' mutual assent to the contract ; (3) A to simple con- valuable consideration ; and (4) Something to be done or omitted which forms the object of the contract (q). There are in certain cases other requirements, and par- ticularly, in some cases, writing is necessary, which will presently be inquired into. Firstly, then, as to the parties to contracts. As a Generaliy general rule, all persons are competent to contract, for *P*;'^'^'^g |J^ the law presumes this until the contrary is shown ; but competent to this is liable to be shown in numerous cases, and it will '^°"*™^*- be found that in some cases the incompetency to con- tract is absolute, in others only limited ; in some the contract is of no eff'ect at all, in others only so with regard to the incompetent party (r). The chief cases of incompetency to contract, either Cases of in- entire or limited, may be stated to be in the case of p°nt\!f ""' *** (p) Brown's Law Diet. Soo. (7) Chitty on Contracts, 8. {r) Jl.i.l, 15. 28 OF SIMPLE CONTRACTS, AND CASES IN WHICH I infants, married women, domestics, and persons noti I compotes mentes, intoxicated persons, aliens, and persons under duress ; and as contracts with all these persons are discussed in a subsequent chapter, nothing further need here be remarked as to them (s). There must be Secondly, as to the mutual assent, it is now essential mutual assent ^^^^^ ^^^^ ^^^^ parties should agree to exactly the same ol the parties. ^ , , T- , • n ■ j. thing; there must be mutuality m the contract, or there can be no contract at all (t) ; thus, if there is a direct offer on the one side, and a direct and unequi- vocal acceptance on the other side, to exactly the same thing, then there is a perfect contract; but if the acceptance is in any way conditional, or introduces any fresh term or stipulation, then there is no complete contract, unless that fresh stipulation is in its turn directly acceded to by the other contracting party. Jordan v. Thus, in the case just referred to below, of Jordan v. Kortm. Norton, the defendant had offered to purchase a horse of the plaintiff, provided he warranted the animal " sound and quiet in harness," and the plaintiff wrote in reply, warranting that it was "sound and quiet in double har- * ness." It was held that here there was no complete contract, the plaintiff"s warranty not being in the same i terms as was stipulated for by the defendant in his offer. wiiat is neces- This rulc as to mutuality occurs most frequently, sary to estab- ^ • q£ parol offer and acceptance, but where lish a contract .^ t-cv l • l l from .liflferent the Contract IS made out from dmerent instruments. instruments, r^^ establish a coutract from different instruments, it is always necessary to show that there is an offer, and a direct acceptance of that offer. There is also another point necessary here, and that is that the different instruments offered as constituting an entire contract must be connected inter se, that is, by reference in (s) See post, chap. vii. (0 ■forthn V. .Norton, 4 ]\1. & W. l.')5. WRITING IS KEQUIRED FOR THEIR VALIDITY. 29 themselves to each other, without the necessity of any f parol evidence to connect them. This is well shown by the case of Boydell v. Druminond (u), which was an Boydeii v. action for alleged breach of a contract to take and ^'^''^^'^'^'^' pay for a set of prints from some of the scenes in Shakespeare's plays, and which contract was required to be in writing, under the 4th section of the Statute of Frauds. The contract in writing on which it was sought to charge the defendant was this, that printed copies of the prospectuses containing the full particulars of the publication lay on the counter of the plaintiff's shop for inspection, and that there was also a book lying there, headed " Shakespeare subscribers, their signatures," and that the defendant had signed his name in this book ; but it also appeared that there was nothing in the book containing the signatures referring to the prospectus, nor was there anything in them referring to the book, and upon this it was held that there was no binding contract, the reason being shown in the following passage from one of the judgments delivered : " If there had been anything in the book , which had referred to the particular prospectus, that would have been sufficient ; if the title to the book had been the same as the prospectus, it might perhaps have i done ; but as the signature now stands, without refer- ence of any sort to the prospectus, there was nothing to prevent the plaintiff from substituting any pro- i spectus, and saying that it was the prospectus exhibited in his shop at the time to which the signature related " (a;). Any offer that is made by a person does not bind him An offer made until it is accepted by the person to whom it is made, i-u ° cc^eS^ for until then he has a locus 2>enitentiw allowed him (y) ; and this is true, although the person making the offer (u) 11 East, 142. {x) Per Le Blanc, J., 11 East, 158. ('/) Roullcclje V. Grant, 4 Bing. 653. 30 OF SIMPLE CONTRACTS, AND CASES IN WHICH expressly gives the person to wliom it is made a certain time to accept or reject it. There is nothing binding between the parties until accepted ; but then, when the unconditional acceptance is once made, there is a perfect and binding contract. When an ofier is made by letter, which is to be accepted by a particular time, there is a presumption that the intention to contract continues until that time arrives, unless the offer is before then rescinded ; so that where in one case an offer was made by the defendant to sell at a certain price, " receiving an answer by return of post," and through the defend- ant's mistake the plaintiff did not get the letter at the time he should have done, but when he did receive it sent an answer by return of post, and the defendant had in the meantime considered the bargain off, and sold to some one else, it was held that there was a perfect contract (z) ; and also, in another case, an offer was made which required an answer by return of post, and, by the fault of the post-office officials, the letter did not reach the plaintiff when it ought to have done, but directly he did receive it, he accepted the offer, it was held that there was a complete contract (a). When a con- It has been held that, with regard to contracts taking place thiwh pl^'CC through the post, a contract is not complete until the post is the letter of acceptance is received by the party making comp e e. ^^^ ^g"^^ ^^^^ , -^^^^ ^^ ^ later case this decision was dis- ' approved of by the Court of Appeal in Chancery, where the judges were of opinion that such a contract is com- plete directly the letter accepting the offer is posted, even although it may never reach its destination (c). It has been held that where a person offers by adver- tisement a reward for the doing of some act, any person doing such act has a right to recover the advertised (j) AdwiS V. LindseU, I V>. & Aid. (iSl. (a) Vunlop V. Higgins, 1 H. L. Cas. 381. (6) British Aimrican Tcleijraph Co. v. Colson, L. I\. G E.\. 108. (c) Harris' Case, L. K. 7 <'h. Ap. 587. WRITING IS REQUIRED FOR THEIR VALIDITY. 31 reward. This is at first only an offer to the whole worlJat large, but any particular person doing the act renders it as if the offer were made to and accepted by him, and the doing of the act required amounts to a valuable consideration, so that all the essentials of a valid simple contract exist (d). Thirdly, as to consideration. A valuable considera- The question tion has already been defined (e), and upon it the first o^ whether or •; _ ^ ■'^ J- not a consK lora- point to be noticed is that, though some valuable con- tion is suffi- sideration is an essential to a simple contract, yet the |g"^^*i.ggj ^(j^jj^ question of whether or not the consideration is sufficient done cannot be for what is agreed to be done will not be entered into; ;°°'^^' ^^^'" thus cases have clearly decided that the forbearance of legal proceedings for a very short time is a perfectly valid consideration for an agreement to pay a very con- siderably larger sum (/) ; but if, of course, the professed consideration is practically nothing at all, but simply a nullity, as, for instance, the surrender of a tenancy at will, which may be determined at any time, then it will not be sufficient. It was also the rule in equity in cases of most utter and unconscionable inadequacy of consideration, to give relief on the ground of some im- position or fraud, and in the case of bargains with expectant heirs, it is generally necessary to show that a full consideration was paid (p) ; but this, though un- doubtedly now applying to all branches of the High Court of Justice, does not, nevertheless, do away with the correctness of the general rule that the question of adequacy or inadequacy of the consideration will not be entertained. When writing is used, it has been decided that it is Where writing not sufficient for the writing to show the promise and gJjo'^'^'Jhg "g^!* . . sideration as well as the {d) Per Lord Campbell, in Gerhard v. Bates, 2 E. & B. 47G, quoted in promise. Broom's Coms. 324. (e) See ante, p. 15. (/) See, for instance, Smith v. Algar, 1 B. & A. 603. ('/) See hereon Snell's Principles of Equity, 408, 409. 32 OF SIMrLE CONTRACTS, AND CASES IN WHICH n'«w V. then to show by parol that there was a consideration Waritcrs. ■ ^^^. ^.j^.^^. p^.Q^^jgg^ \)-^^i Ij^j^]^ i\^q promise and the con- sideration must appear on the face of the written con- tract, or it will not be good ; for the consideration is part of the agreement (h), and this is so, even though writing was not necessary to the validity of the instru- ment ; for if the parties have chosen to have writing, then that writing must contain the whole agreement. Exceptions to To this rulc there arc exceptions in the case of bills t e ru e. ^£ exchange and promissory notes, in which, by the custom of merchants, the consideration is presumed until the contrary is shown, and also in the case of guarantees, as to which it is provided by the Mercantile Law Amendment Act (i) as follows : " No special promise to be made by any person after the passing of this Act, to answer for the debt, default, or miscarriage of another person, being in writing, and signed by the person to be charged therewith, or some other person thereunto lawfully authorized, shall be deemed invalid to support any action, suit, or other proceeding, to charge the person by whom such promise shall have been made by reason only that the consideration for such promise does not appear in writing or by neces- sary inference from a written document." The reason of this alteration in the case of guarantees was because it was found in practice that the rule led to many un- just and technical defences to action upon guaran- tees (k) ; but the student will of course observe here that the statute does not dispense with the necessity of a consideration to a guarantee, but merely provides that it need not appear on the face of the instrument. Considerations Considerations with reference to the time of their divided with performance may be either executed, i.e., something the^timeof done before the making of the promise; executory, i.e., their performance. (/() Wain V. Warlters, 2 S. L. C. 24] ; 5 East, 10. (0 19 & 20 Vict. c. 97, s. 3. (/.) 2 S. L. C. 253. WRITING IS REQUIRED FOR THEIR VALIDITY. 33 something to be done at a future clay ; concurrent, i.e., taking j^lace simultaneously ; or continuing, i.e., partly performed, and partly yet to take place {I). A very An executed important question to be asked on this subject is, will consideration ■i i _ . ' ^ will only sup- an executed consideration support a promise ? and the port a promise answer is mainly found in the leading case of -'f^*'''^- b^a°)recedent leigh v. Braithwaite (ni), which decides that " a mere request, ex- voluntary courtesy will not uphold assumpsit, but a pji'^d."^ ""' courtesy moved by a previous request will." An exe- Zampicujh v. cuted consideration, therefore, to support a promise, Braithwaite. must be moved by a precedent request, e.g., if the plaintiff in his statement of claim alleges that in con- sideration that he had done a certain act for the de- fendant the defendant promised, this would be bad (n) ; but if he stated that in consideration that he had done a ^ certain act for the defendant at his request the defendant i promised, this would be good. This previous request may be either express or implied, for it will be implied in some few cases, of which the following are the chief : — 1. Where the plaintiff has been compelled to do that Cases in which which the defendant was legally compellable and ought i-e^^^fesrwrn bo to have done, e.g., where the plaintiff was a surety for implied. the defendant and has been called upon to pay and has paid the amount for which he was surety. 2. Where the plaintiff has voluntarily done such an act, and in consideration thereof the defendant has after- wards expressly promised to reimburse him. A person cannot recover for his spontaneous act without such subsequent promise (o), but the promise being made, then the prior request is implied. And even although , the debt which the plaintiff* has paid was one which could not itself have been enforced at law, e.g., a wager : (0 Chitty on Contracts, 48-52. (m) 1 S."L. C. 141 ; Hobart, 105. (») See Roscorla v. Thomas, 3 Q. B. 234. (o) Stokrs V. Leiris, 1 T. R. 20. 34 OF SIMPLE CONTRACTS, AND CASES IN WHICH , or gaming debt, yet a promise being made tbe money paid is recoverable (p). 3. Where the defendant has accepted the benefit of the consideration, e.g., if a tradesman sends to a man goods the latter never ordered, but he chooses to keep them ; and {q), 4. Where the plaintiff has voluntarily done some act for the defendant which is for the public good, e.g., in paying the expenses of burying a person in the absence of the one legally liable to pay such expenses (r). There are two cases in which though there is actually an express previous request no action can be main- tained, viz., in the case of barristers and physicians, for the fees here are looked upon as honorariums (s). An executed In discussing exccutcd considerations, there is an- consideration Q^j^gj. important poiut to be mentioned, and that is, that from which -i- ^ .-jii • ^• the law im- wherc from the executed consideration the law implies plies a promise promise, the force and strength of the consideration is will not sup- 1 ' . . ° . 1 •/ -11 port any other exhausted m producing an implied promise, and it will promise. support no exprcss promise in addition to it. Thus it has been held that where an account had been stated and a sum found to be due thereon to the plaintiff, that this fact would not support an express promise to pay such sum in futuro, because the promise that the law implied from it was to pay in prsesenti (t). So, again, Boscoria v. in the case of Eoscorla v. Thomas (*), where, in con- Thvmas. gideration that the plaintiff had bought a horse of the defendant, the defendant promised that the horse was free from vice, it was held that there was no con- sideration to support this promise, for it was an exe- (/>) Roscoe's Digest, 510 ; KnigJit v. Chambers, 24 L. J. (C. P.) 121 ; Iioscv:are v. Billing, 33 L. J. (CP.) 55. (7) 1 S. L. C. 148; Chitty on Contracts, 49. (r) Roscoe's Digest, 513. (.s) See more fully hereon, post, chap. vi. p. 157. (t) Ilopkias V. Loijan, 5 M. & W. 247, cited in 1 S. L. C. 152. \h) 3 (.1 V,. 234. WRITING IS REQUIRED FOR THEIR VALIDITY. 35 cuted consideration from wliich the law bad already implied a promise to pay, and therefore it would not serve to support any other promise. There are many matters of a past nature which throw a merely upon a person a moral obligation, but though there "^°^"'''^ conside- r r D ' o ration will not have been cases to shew that a merely moral considera- support a pro- tion will support a promise (x), they can now be put ™^^''- aside as undoubtedly not law at the present time, and it can be definitely stated that a consideration only moral will not be sufficient to support a contract. This is well illustrated by the case of Beaumont v. Beaumont v. Beeve (y), in which it was decided that a promise by ^'''''^^■'^• a man that in consideration that he had seduced and cohabited with a woman he would make her a certain payment, was merely nudum pactum, and could not be enforced — the seduction gave forth no obligation which, according to our laws, could be enforced, and therefore no promise could give a right of action on it. The student must not confuse this with a promise by a man to pay a sum to the mother of an illegitimate , child towards its support, for this would be perfectly valid, as a mother by undertaking the entire support of such child does more than by law she is bound to, and this forms a sufficient consideration for the promise. But though a merely moral obligation will not form But a moral a sufficient foundation to support a promise, vet if it is obligation ■'•■'■ ■■■ •> which was not entirely of a moral nature, but was once a legal once a legal obligation, which has only become a moral obligation oi^^ ^^''^^ ^"P: o ' J o ^ port a promise. by reason of having become devoid of legal remedy, it may support a promise (z). The correct rule upon the point has been well stated to be " that an express promise can only revive a precedent good consideration which might have been enforced at law through the medium of an implied promise, had it not been sus- (x) See them cited in Chitty on Contracts, 36. ly) 8 Q. B 483. (.;) 1 S. L. C. 148. D 2 36 OF SIMPLE CONTKACTS, AND CASES IK WHICH pendecl by some positive rule of law ; but can give no original rigid of action if the obligation on which it is founded could never have teen enforced at law, though not barred by any legal maxim or statute provi- sion " (a). Thus in the case of an agreement to pay a sum in consideration of past seduction, this is an obli- gation which never could have been enforced at law, but in the case of a debt which has deen barred by the Statute of Limitations, though being so barred, the obligation to pay it is merely a moral one, yet it is an obligation which could once have been enforced and has only been rendered simply moral by reason of its having become devoid of legal remedy, and the promise to pay such a debt is binding (h). An executory "With regard to an executory consideration, as it consideration ^onsists of somc thing to be done at a future day, of must generally /-> _ _ «' ' have been per- course before an action can be maintained on the con- InTAton'^c^m tract the future act forming the consideration must be brought on havc been done by the plaintiff, or he must at least have been always ready and willing to do it. the contract. The doing of an act a person was bound to do is no considera- tion. The doing by a person of an act which he was already under a legal obligation to do, cannot form a consideration ; thus a promise by a master of a ship to pay his seamen a sum in addition to their proper wages as an incitement to extra exertion on sudden emergency is not binding, for they are as seamen bound to do everything in their power (c). As to an im- possible con- sideration. If the consideration stated for a promise is of such a nature as to be either legally or morally impossible, no promise founded on it will be binding (d). By a con- sideration legally impossible, is meant where a person (fCj Note to Wennall v. Adney, ?> V>. k P. 252. (6) As to limitation generally, see post, pp. 201-208. (c) Harris v. Carter, 3 E. & B. 559; Chitfy on Contracts, 42. (d) Chittv on Contracts, 44, 45. WRITING IS REQUIRED FOR THEIR VALIDITY. 37 agrees to do an act wliich is contrary to tlie law (e) ; and by a consideration morally impossible, is meant where a person agrees to do an act which is simply an absurdity as being naturally and physically impossible, " as if the consideration be a promise that A. shall go from Westminster to Eome in three hours" (/). Here this is manifestly an absurdity and an impossibility, and from snch a promise no benefit or advantage can result to the other party, so that it in fact amounts to no consideration at all. And although a consideration was not originally impossible, yet if from circumstances that occur it afterwards becomes so, the rule equally applies {g). Fourthly. As to the object of the contract. This The object of a must be neither of an illegal nor immoral nature, either ^'^^ brnwTi directly or indirectly, but if there are legal and illegal or immoral. acts stipulated for in a contract, and they are clearly divisible, it will not render the whole contract void (/i). To a deed, writing is, of course, an essential, for to Cases in which constitute a deed there must be a writing actually neceggfry^ sealed and delivered ; but for simple contracts at common law no writing was necessary, nor is it at the present day, except in those cases in which it has been rendered necessary either by statute or custom. Those cases in which writing is necessary are generally of great practical importance, and may be stated to be chiefly as follows : — 1 . In cases coming within the Statute o f Frauds (*), and Lord Tenterden's Act (h). (e) See Hashun v. Sherwood, 10 Bing. 540 ; ILn-vcy v. Gibbons, 2 Lev. IGl. (/) Chitty on Contracts, 44, 45. lu) See Chanter v. Lecsc, 4 M. & W. 295. (/t) See further as to illegal contracts, post, ch. ix. (0 29jCaii, 2,_c.-3. (k) 9 Gep^^i^a 14^ 38 OF SIMPLE CONTRACTS, AND CASES IN WHICH 2. In the case of grants of annuities. 3. Contracts relating to sale or assignment of copy- rights. 4. Contracts relating to sale or transfer of ships ; and, 5. Bills of exchange, promissory notes, and other like negotiable instruments. Of the above cases, by far the most extensive is that numbered 1, being cases coming within the Statute of Frauds and Lord Tenterden's Act. Of the former statute the most important sections are the 1st, 2nd, 3rd, 4th, 7th, and 17th. Provisions of the 1st, 2nd, and 3rd sec- tions of the Statute of Frauds. The 1st section provides that " all leases, estates, interests of freehold or term of years or any uncertain interest of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments made or created by livery and seisin only or by parol, and not put in writing, and signed by the parties so making or creating the same or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect, any consideration for making any such parol leases or estates, or any former law or usage, to the contrary notwithstanding." The 2nd section, however, goes on to provide, " Except, nevertheless, all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord during such term shall amount unto two-third parts at least of the full improved value of the thing demised." The effect, therefore, of these two sections WKITING IS REQUIRED FOR THEIR VALIDITY. 39 taken together is, that a lease by parol can only be <<■ (^ y^ ^ ' % made where it does not exceed three years from the j*>^ f^^-p^^ v-cW making thereof {!). By the 3rd section all assign- ments and surrenders of leases must be in writing, signed by the persons or their agents authorized in writing. The 7th section, perhaps, should hardly be mentioned Provision of in the present work, but it may be noticed that it ^^"^ '^^^ '''^*^°''- provides that trusts of land or any interest in land must be in writing ; but it does not require any writing to create a trust of purely personal estate. There then remain now the 4th and 17th sections to be con- sidered. The 4th section provides that " no action shall be Provision of brought whereby to charge any executor or adminis- *^^'**^®^'^*^°°' trator upon any special promise to answer damages out of his own estate, or^^ whereby to charge the defendant upon any special proinise to answer for the debt, de- fault, or miscarriage of another person, or. to charge any person upon any agreement made upon considera- tion of marriage, or, upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, or 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 is brought or some memorandum or note thereof shall be in writing, signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." With regard to promises by executors or adminis- As to contracts trators to answer damages out of their own estates, it j^Jj^.-^J'slra'torT need only here be said that, although the writing re- to answer quired by the statute exists, yet there must_also exist ^11™^ own "* ° ^ estates. (J) See further hereon, post, ch. iii. p. 51. 40 OF SIMPLE CONTRACTS, AND CASES IN WHICH some new valuable consideration for the promise ; but the next kind of contract mentioned in the 4th section, viz., pjuarantees or agreements to answer for the debt, default, or miscarriage of another person demands a more lengthened consideration. As to gu;i- In the first place must be observed the decision in lautees. ^]jg leading case of Birhmyr v. Darnell (rn), to the iZn'cll ' effect that a promise to answer for the debt, default, or miscarriage of another, for which that other person remains liable, is within the statute, and must be in writing ; but if that other does not remain liable, then it is not within the statute, and need not be in writing. To illustrate this, the following example may be given : A. goes into a shop with B., and says to the shopkeej)er, " Supply goods to B., and if he does not pay you for them, then I will." Here this is within the statute ; for it is a guarantee, and to render A. liable it must be reduced into writing. But if A. goes into a shop with B., and says, " Supply goods to B., and charge them to me," here this is not within the statute, for it is no guarantee, but a direct sale to A., the goods being by his direction sent to B., and there- fore, to render A. liable, there need be no writing (n). A promise Again, if the promise is made to the debtor himself, made to a [{, [q ^^t within the statute, for the statute only ap- debtor himself ,. , . n i n j i ji cannot be plics to promiscs made to the j)erson to whom another witiiin the jg answcrable (o). A guarantee may be made for future Statute of \ / o J _ Frauds. advauccs, and may be made out from different instru- ments provided they are connected i)iter se, without the necessity of any parol evidence (p). A guarantee for- merly came within the common rule (q) that the con- (m) 1 S. L. C. 310; Salkeld, 27. (w) Unless, indeed, it comes vvitliin the 17th secticn of the Statute of Frauds, as to which, see post, ch. iv. p. 74, et seq. (o) Eastwood V. Kenyan, 1 1 A. & E. 446. (/>) See ante, p. 29; and the case of Boydcil v. Druinmond, 11 Enst, 142, there referred to. (v) Stated ante, pp. 31, 32. WRITING IS REQUIRED FOR THEIR VALIDITY. 41 sideration as well as the promise must appear on the face of the instrument, but in consequence of the difficulty of setting forth the consideration in a suffi- cient manner to satisfy the courts of law, this rule proved to be a grievance to the mercantile commu- nity (r), and, in consequence, the Mercantile Law The consiJei-r.- Amendment Act (s) provides that a guarantee shall be ^ °° appli" "L valid without the consideration appearing on its face, the face of a The same statute (sect. 5) provides that on a surety ^^^^^^'^ ^'^^ paying the principal's debt he shall be entitled to have assigned to him, or a trustee for him, every judgment or other security held by the creditor, notwithstanding the same may be deemed at law satisfied by his pay- Eights of a ment or performance, and such person shall be entitled ^^^'^^y °" P-^r 1. ^ r ^ mg his pnnci- to stand in the place of the creditor ; before this statute pal's debt. the surety only had a right to collateral securities and not to the principal security itself. If a person is Surety to or surety to or for a person he is liable to, or for that '^' ' ' ' person only, and not for any partner, and if surety to or for a firm consisting of two or more persons, or a single person trading under the name of a firm, he' is not liable after any alteration in or addition to the persons or person constituting such firm {t). A Acts which surety may be discharged by any fraudulent misrepre- cnl^^harara^ ^^ sentation or concealment (u) ; by the failure of an in- surety.; tended co-surety to execute (x) ; by the creditor's connivance at principal's default or his laches, but mere delay in giving a voluntary forbearance will not be sufficient laches (y) ; by non-performance of conditions by creditor ; by the discharge of the principal ; by any alteration of the terms of the contract between the creditor and the principal, which may have the efi'ect (r) 1 S. L. C. 315; ante, p. 32. (s) 1 9 & 20 Vict, c. 9 7^. 3. (t) iTSi 20 Vict. c.'ffTTTl-. (m) Railton v. Matthews, 10 C. & F. 934-. {x) Evans v. Brcmridtje, 25 L. J. (Oh.) 33-', (//) Pliillips V. Fordi/ce, 2 Chit. 676 ; Stronj v. Foster, 25 L. J. '^C.P.) 106. 42 OF SniPLE CONTRACTS, AND CASES IN WHICH of interferonco for a time with his remedies against the principal dehtor (z), or by a binding agreement by the creditor with the principal to give time to the principal, unless at the time the creditor and the prin- cipal stipulate that it shall not discharge the surety, then (even although not by his consent) it will not discharge him (a). A mere voluntary giving of time, without any obligation to do so, will not operate to discharge a surety (h). On a bill of exchange the party primarily liable is the acceptor, and the other persons liable thereon stand in the position of sureties for him, as is hereafter ex- plained (c), and the rule therefore as to what acts will operate to discharge a surety applies to the person other than the acceptor liable on a bill. Upon this point Ex parte the important recent decision of Ex parte Jacobs (d) Jacobs. should be noticed. In that case an acceptor of a bill had filed a petition for liquidation or composition by arrangement under the Bankruptcy Act, 1869 ; and at the meeting of creditors the holder of the bill signed a resolution agreeing to accept a composition, under which resolution the acceptor was discharged, and the question was whether this operated to discharge the drawer of the bill from claims on the bill. It was held by the Court of Appeal that it did not, for that the acceptor must be considered as discharged by operation of law, and not by the creditor's voluntary act, even al- though such creditor had attended and expressly voted for tlie acceptance of the composition. It is presumed that this would apply not only to (z) Waits V. Shuttlcworth, 10 W. R. 132; TwJ:er v. Laing, 2 Kay & J. 745. (a) O'len v. IJoman, 4 II. of L. Ci.s. 997. \h) Bell V. Banks, .3 M. & G. 258. (c) See post, pp. 118-121. ((/) L. K. 10 Ch. Ap. 211. ((') This casf- foll<,\v(;je v. Dell, 2 S. L. C. 96 ; 5 T. R. 471. {ft) Six lunnr m'lnth;-' notice sooms not sufficient. OF LANDLORD AND TENANT. 53 doubtful what is meant here, and the safest plan is to give a week's notice (h) ; to determine a tenancy in lodgings also a reasonable notice only is -required. Though a written notice to quit is always advisable, a parol tenancy may be determined by a verbal notice (c). Where several premises are let under one common rent, f notice to quit part of them only cannot be given (d), and if a tenant holds under a lease made by two or more joint lessors they must all join in giving notice to quit, and notice to quit by one is bad. As stated, if s a tenant holds over after the expiration of his lease he may by payment of rent be converted into a yearly tenant, and until then he is a tenant at suiferance ; but if a term determines and the landlord has made a demand and given notice in writing for possession, and the tenant holds over, he is liable to pay double the j yearly value of the premises, unless he had a bond fide \ belief that he had a right to so hold over (e) ; and if a tenant gives notice of quitting to his landlord and does not quit at that time, he is liable to pay double the yearly rent of the premises (/). If a landlord gives notice to his tenant to quit or pay an increased rent and the tenant does not quit, his agreement to pay the increased rent will be implied (g). A tenancy at will sometimes arises by the construe- Tenancy at tion of the law, e.g., in the case of a mortgage, the law ^^'i' 'iiis'ag % ' -^ ' _ o o J construction considered the mortgagor as simply the tenant at will of law. of the mortgagee and liable to be ejected at any time, so that he could not bring any action in respect of the mortgaged lands, although he continued in possession of them. With regard to a mortgage, however, it is now provided by the Judicature Act, 1873 (A), that " a mort- Provision of Judicature (6) See hereon, 2 S. L. C. 107. (c) Arch. L. & T. 94. (d) Ibid. 95. (e) 4 Geo. 2, o. 28, s. 1. (/) 11 Geo. 2, c. 19, s. 18. (g) See ante, pp. 18, 19. (h) Sect. 25 (5). 54 OF CONTRACTS AS TO LAND, AND HEREIN Act, 1873, as gagoi" entitled for the time being to the possession or to position of receipt of \]^q rents and profits of any land as to which mortgagors. ^ . , . •■• •' no notice of his intention to take possession or to enter into the 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 upon a lease or other contract made by him jointly with any other person." A tenant is A tenant is estopped from disputing his lessor's title, dl-^'m/nntr hir therefore where a tenant acquires possession under a lessor's title, person who claims as devisee, it is not competent for him to set up any objection to the devise. Payment of rent impliedly admits a tenancy («"). Liability of _ A tcuaut from year to year in the absence of agree- year"to yeal- Hicut IS uot liable to make good injuries happening for repairs. ^ from accidental fire, wear and tear of time, or the like, but an act arising from his own voluntary negligence he is liable for, e.g., to repair broken windows. Where a tenant covenants to repair, his liability to a great extent depends upon the state of the premises at the time of his covenant, for though he would not be justified if they were in actually bad repair in so leaving them, yet, with regard to the extent of the ' repairs to be done it may be stated generally that he will only be obliged to keep them in as good a condition as they were at the time of the demise ; if the premises are burnt down, under such a covenant he will have to reinstate them unless the contrary has been provided. If, however, a fire is caused by any person's gross negli- gence such person is liable for it. In the absence of express agreement a landlord is not under any obliga- tion to repair the demised premises, and it seems that the fact of premises becoming uninhabitable from the (*) Chitty on Contracts, 305. OF LANDLORD AND TENANT. 55 want of proper repairs will not at all entitle the tenant to quit without notice, and is no answer to an action for the rent. With regard to farms, a promise is im-| plied by the law on the part of a yearly tenant to use the farm in a husbandlike manner and cultivate itj according to the custom of the country (k). Property tax is always borne by the landlord, and Property tax any contract by the tenant to bear it is void : the fi ways borne . iiT-ip • • 1-1 by landlord. ■■■ , tenant should m the first instance pay it, and is then ^ ^^^j: , cAj^m entitled to have it allowed to him out of his rent (I). It should also be noticed that tithe rent-charge is not a charge upon the person of the owner or occupier but upon the land, and, therefore, in the absence of agree- ment to the contrary, a tenant paying it may deduct it from his rent. Although there maybe nothing in a lease to that effect, a tenant may a tenant may sometimes by custom have certain rights, foretimes ■^ •' . o ' have rights by on the ground that the parties have contracted with custom, reference to that custom, and an implied contract has been thus created (w). This often occurs in the case of farming tenants with reference to the custom of the country as to their rights on giving up possession of their farms. If a lease contains any particular stipula- tions as to the manner in which a tenant is to quit, and what he is to be entitled to on quitting, then the rule Expressum facit eessare taciturn applies, and no custom a. Jju^tLJ^ to-^ , U^ can have any effect ; but if, though there is a lease, it ^- (^ /jjxA *a tUtJ is silent on this point, then, as was decided in the case UJ^ J-**-^ ^"^"^jf*^ ^ of Wigglesworth v. Dallison {n), the tenant may take wigglesworthy^*^ ^ advantage of the custom. ^- ^f '''''■ ^t" ^ Questions frequently arise between landlord and Fixtures. '^'*-'*^ - ^ tenant as to the right to fixtures. The term fixtures h^*-**^ v . ^ (U' '^^^^VI-i6 (k) See generally hereon Woodfall's Landlord and Tenant, 430-480. (I) 5 & 6 Viet. c. 35, s. 103. (»i) See ante, pp. 18, 19. C'O 1 S. L. C. 598 ; Dougl. 201. 56 OF CONTRACTS AS TO LAND, AND HEREIN Meaning of the term. Must be re- moved during tenancy. is used with different meanings sometimes ; strictly speaking, it signifies things affixed to the freehokl,but it may also be used as signifying chattels annexed to the ' freehold,'hut which are removable at the will of the : person who annexed them (o). The rule at common law as to things affixed to the freehold is expressed by the maxim of our law, Quidquid jplantatur solo, solo cedit; but this rule was found to operate in dis- couragement of trade, and in consequence there has gradually grown up a great mitigation of it. It may be stated generally that fixtures erected for the pur- I poses of trade, ornament, or domestic use, and also agri- I cultural fixtures (p), may be removed by a tenant as against his landlord, and it may in particular cases happen that custom gives a tenant a wider right than he would ordinarily have. When a tenant has the right to remove fixtures, the removal by him must be during his tenancy, or such further period as he holds under a right to consider himself tenant {q), i.e., whilst permitted by the landlord to remain in possession, and if he does not remove them during that time he will lose his right to them, for they then become a gift in law to the landlord, unless indeed the landlord after- wards give a licence to the tenant to enter to remove » the fixtures, and such licence would not be good unless under seal (r). Originally no fixtures could be removed, but the old rule now mitigated. As before stated, originally nothing in the nature of a fixture could be removed and the mitigations of the old rule have arisen gradually ; the first was in favour of trade fixtures, and subsequently other cases ex- tended it to ornamental and domestic fixtures. There have been a very great number of cases upon this sub- ject, and amongst the articles that have been decided to be removable by the tenant may be mentioned as in- (o) 2 s. L. C. 182. \p) 14 & 15 Vict. 0. 25 ; 38 & .39 Vict. c. 92, s. 53. {q) Weeton v. Woodcock, 7 M. & W. 14. (>•) IMey V. Henderson, 17 Q. B. 574. OF LANDLORD AKD TENANT. 57 stances the following : — Chimney-glasses, sheds, blinds, ornamental chimney-pieces, wainscots, shelves, coun- ters, pumps, partitions, shrubs and trees planted for sale (s). The fixtures, if removable, must be taken away without material damage to the inheritance, and the right of removal is, of course, liable to be controlled by express contract, so that, for instance, if a tenant cove- nants to keep in repair all erections built, or thereafter to be built, and surrender them at the end of the term, this will prevent him removing things which but for the covenant he might have removed [t). Under the exception to the common law rule in Ehces v. Mau-e. favour of trade fixtures, it was decided in Elwes v. Mawe (u) (which is a case very generally quoted and referred to on the subject of fixtures) that this would not apply to allow tenants in agriculture to remove things erected for the purposes of husbandry, and Lord Ellenborough, in delivering the opinion of the Court to that effect said : — " To hold otherwise, and to extend Reason of the rule in favour of tenants to the latitude contended agricultural nxtnres not for by the defendant, would be, as appears to me, to being remov- introduce a dangerous innovation into the relative state l^\^ ^^ ^^'^^^ *-• nxtures. of rights and interests holden to subsist between land- lords and tenants. But its dangers or probable mis- chief is not so properly a consideration for a court of law as whether the adoption of such a doctrine would be an innovation at all ; and being of opinion that it would be so, and contrary to the uniform current of legal authorities on the subject, we feel ourselves, in conformity to and in support of those authorities, obliged to pronounce that the defendant had no right to take away the erections stated and described in this case." These remarks shew the reason of the decision, and as the rule undoubtedly often worked hardship on (s) See a list of things decided to be removable and not removable in Chitty on Contracts, pp. 330-333. (O West V. Blakeway, 2 M. & G. 729 ; Fairy v. Bron-n, 2 Stark. 403. (»() 2 S. L. C. 162 ; 3 East, 38. 14& 15 Vict. c. 25 58 OF CONTKACTS AS TO LAND, AND nEKEIN tenants, it has boon altered by the legislature, it being Provision of now provided by 14 & 15 Vict. c. 25 (x), that all build- ings, engines, or the lil^e, erected by the tenant for agricultural purposes, ivith the consent in icriting of the landlord, shall remain the property of and removable by the tenant, so that he do no injury in the removal thereof; provided that one month's notice shall be I given before removal to the landlord, who within that time is to have a right of purchasing at a value to be ascertained by two referees or an umpire. T he Agj ri- ■ cultural Holdings Act, 1875 {ij), also contains a provi- Provision of sToir~on tliis subjcct, as follows : — " "Where after the T'^2 T 53"^^' commencement of this Act a tenant affixes to his hold- ing any engine, machinery, or other fixture for which he is not under this Act or otherwise entitled to com- pensation, and which is not so affixed in pursuance of some obligation in that behalf, or instead of some fixture belonging to the landlord, then such fixture shall be the property of and removable by the tenant : Provided as follows : 1. Before the removal of any fix- ture the tenant shall pay all rent owing by him, and shall perform or satisfy all other his obligations to the landlord in respect of the holding. 2. In the removal of any fixture the tenant shall not do any avoidable damage to the building or other part of the holding. 3. Immediately after the removal of any fixture the tenant shall make good all damage occasioned to any building or other part of the holding by the removal. 4. The tenant shall not move any fixture without giving one month's previous notice in writing to the landlord of the intention of the tenant to remove it. 5. At any time before the expiration of the notice of removal, the landlord by notice in writing given by him to the tenant may elect to purchase any fixture com- prised in the notice of removal, and any fixture thus elected to be purchased shall he left by the tenant, and {x) Sect. 3. ly) 38 & 39 Vict. c. 92. OF LANDLORD AND TENANT. 59 shall become the property of the landlord, who shall pay the tenant the fair value thereof to an incoming tenant of the holding ; and any difference as to the value shall be settled by a referee under this Act as in case of compensation (but without appeal). But nothing in this section shall apply to a steam engine erected by the tenant, if before erecting it the tenant has not given to the landlord notice in writing of his intention to do so, or if the landlord by notice in writing given to the tenant has objected to the erec- tion thereof" (z). The most noticeable difference between this provi- sion and the one contained in 14 & 15 Yict. c. 25, is that under that statute only fixtures erected with the consent in vjriting of the landlord can be removed. " As to the operation of the Statute of Frauds, Contract for 29 Car. 2, c. 3, upon contracts exclusively for the sale sa.ie ot fixtures '.'■'• '' need not be in of fixtures, it appears to be settled that such contracts writing. are valid without the formalities prescribed by the 4th section of that statute. A transfer of fixtures simply appears to be nothing more than a transfer of the right which the vendor has to sever certain chattels annexed to the soil, but not part of the freehold. Such transfer therefore passes no interest in the realty, and accordingly it does not come within the operation of the 4th section of the statute " (a) ; but it may be noticed that a contract for the sale of fixtures, if in writing, ' and they are above £5 in value, does require a stamp. I Upon a sale or mortgage of land, fixtures will pass On the sale or to the vendee or mortgagee, in the absence of any con- "^or^^gage of o. ^ ^ •' land fixtures trary intention ; and with regard to the much-discussed pass without 1 question of whether a mortgage of land with fixtures !^v'|,-^.j7'^'^''^^ i requires to be registered as a bill of sale, it has now When a mort- gage of fixtures ~ ■ — — requires regis- tration as a (z) Sect. 53. bill of sale. {a) Chitty on Contracts, 337. 60 Distress. What it is. OF CONTRACTS AS TO LAND, AND HEREIN been decided that it does not so require, unless the mortgagee has power given him to deal with the fix- tures apart and separately from the land (h). The most apt and proper remedy of a landlord for the recovery from his tenant of the rent due is distress, which is a remedy by the act of the party, being the right the landlord has of entering and seizing goods for the purpose of liquidating the amount due to him, the word being derived from the Latin distringo. A right of distress besides for rent exists in the case of cattle taken damage-feasant, and here the reason for the remedy is tolerably plain, because the distrainor may be said to be acting on the compulsion of the trespass, but in the case of the distress for rent the reason why it is allowed is by no means so clear, for there does not seem very much more reason why a landlord should have this peculiar privilege any more than a trades- man for a debt accruing for articles supplied for the use of the debtor's family. Requisites to The following sccm to be the requisites to the power enable a laud- j ^istreSS :— lord to distrain. 1. There must be an actual demise and not a mere agreement for a lease. 2. The rent must be certain, that is, the premises must be let at a fixed rent ; for if the tenant holds pre- mises on a rent to be agreed on, or simply on their fair value, the landlord has no right of distress {c). 3. The rent must be in arrear ; and rent does not become due until the very end of the day on which it is payable ; but in the case of rent payable in advance, it (6) Ex parte Barday, L. R. 9 Ch. App. 576 ; Ex parte Daglish, L. R. Ch. App, 1072 ; on the Law of Fixtures gonerally, see Brown on Fixtures, (c) Arch. I-andlord and Tenant, 113. OF LANDLORD AND TENANT. 61 has been decided to be in arrears directly the jjeriod for which it is payable commences. 4. The distrainor must have the reversion in him, either an actual reversion, or (at the least) a reversion by estoppel (d). The general rule is that all moveable chattels on the All moveable demised premises at the time of the distress are liable to f^^"e^^ "r"^^ ^ be distrained ; be seized, whether they are the property of the tenant or are subject to of a stranger ; but this rule is subject to many excep- <^^ceptions. tions. The leading case on the point of the exemption of things from distress is Simpson v. Hartopp (e) : the Shnpson v. case itself is only a direct decision to the effect that im- ^^"^^°pp- j^lements of trade are privileged from distress for rent if they be in actual use at the time, or if there be any other sufficient distress on the premises ; but in the judgment is contained a summary of the authorities upon the point generally. Instead of going into this case, it will be best to give a list of the principal things which at the present day are exempted from being taken in distress, and they are as follows : — • 1. Things in the personal use of a man. Things ex- empted at the /-, TT no T 1 present day 2. 1 ixtures affixed to the freehold. from being taken in 3. Goods of a stranger delivered to the tenant to be wrought on in the way of his ordinary trade. 4. Perishable articles. 5. Animals ferie naturoe. 6. Goods in custodia legis. 7. Instruments of a man's trade or profession though (d) Brown, 121, tit. " Distress.' (e) 1 S. L. C. 439; Willes, 512. 62 OF CONTRACTS AS TO LAND, AND HEREIN not in actual use, if any o^jhcr sufficient distress can be found. 8. Beasts of the plough, instruments of husbandry, and beasts which improve the land, if any other suffi- cient distress can be found. 9. Loose money. Diflferencc between distress and execution as to goods of a stranger. Lodgers' goods, never could be taken in execution, but could in distress. Provisions of Lodgers' Goods Protection Act. 10. Lodgers' goods. On the above the student's attention is first parti- cularly called to that exception numbered 3, for the pur- pose of his observing the difference between an execu- tion issued against goods and a distress on that point. No goods of a stranger are liable to be taken in execu- tion, but in distress they are, except they have been delivered to be wrought upon in the course of the person's ordinary employment. Thus, if a book is lent, and a distress or an execution is put in the lendee's house, the book is liable to be taken in the distress but not in the execution ; but if the book is delivered to a bookbinder to be bound it is not liable to be taken either in distress or execution, for here the bookbinder has it to work upon in the way of his ordinary calling. Again, upon this point the student must particularly notice the exception numbered 10, being lodgers' goods. In an execution a lodger's goods being goods of a stranger were never liable to be taken, but under the rule in the case of distress they were so liable ; and the exception in this latter case is by the legislature, the Lodgers' Goods Protection Act (/), passed in 1871, pTovicling that in any distress by a superior landlord upon a lodger's furniture or goods for rent due to the landlord from his immediate tenant, the lodger may serve the landlord or his bailiff with a declaration (to which must be annexed an inventory of the furniture) (/) 34 & 35 Vict. c. 79. OF LANDLORD AND TENANT. that the immediate tenant has no property or beneficial interest in the goods, and that the same are the pro- perty of him, the lodger, and also setting forth whether any and what rent is due from the lodger to his imme- diate landlord, and the lodger may pay to the superior landlord or his bailiff the rent (if any) so due, or so much of it as may be sufficient to discharge the claim of such superior landlord ; and if the landlord proceeds with the distress after the tenant has complied with these provisions, he is to be guilty of an illegal dis- tress ; and the lodger may apply to a justice of the peace for restoration of the goods. 63 Dogs, it would seem, are not now to be deemed in- Dogs may- be taken distress. eluded under the exemption numbered 5. ^'^ "^'^'"^ '° If a landlord takes a bill, note, or bond for his rent Bill or note this is no extinguishment of his original right to the *'^''^'^ {°^" ^'f.'^* ° . does not extin- rent, for the rent is of a higher nature than either of guish the right those securities C^). of distress. It is said that " every man's house is his castle " (h), Semnyncs Case. and, therefore, to make a distress the landlord or his u^YerV man's bailiff must not break the house, and by breaking the house is his house is meant not only the forcing open the door but ^^^ even the opening of an unbolted window. A landlord, however, in making a distress is justified in opening an outer door in the way in which other persons are accus- tomed t o use it; and when entry has once properly been obtained into a house inner doors may be forced open, and if the distrainor were afterwards turned out from possession he would have a right to break the house to re-enter {i). It is provided by statute (A;) Landlord may that if a tenant fraudulently or clandestinely removes c*i'an,^.sti°neiy his goods after rent has become due, in order to avoid removed by their being seized in a distress, the landlord may, if *^^^^ ' (g) Harris v. Shipwaij, and Uwer v. Lad;/ Clifton, Bui. N. P. 182. (h) Scmaijne's Case, 1 S. L. C. 105 ; 5 Coke, 91. (i) See hereon note (A), Semayne's Case, 1 S. L. C. 112. (k) 11 Geo. 2, c. 19, ss. 1, 2, 64 OF CONTRACTS AS TO LAND, AND HEREIN there is not a sufficient amount of other clistrainable property left, within thirty days. follow and distrain on the goods if they have not been sold honci fide for value, and without notice in the meantime, and a penalty for such an act may be recovered of double the value of the eoods. Manner of making a distress. The manner of making a distress is as follows : — The landlord, either personally or by his bailiff (who need not necessarily be authorized in writing), enters and makes a seizure (any time between sunrise and sunset) by announcing that he then and there distrains. He then makes an inventory of the furniture and goods, and leaves the same, with a written notice of the amount of rent due and of the things distrained, on the pre- mises ; after five days from making the distress the chattels are appraised by two sworn appraisers and then sold, and any balance beyond the rent and ex- penses is afterwards paid to the owner. A landlord A landlord can, if his title still continues, and the aftJrtxpIra- tenant is still in possession, distrain for rent after the tion of lease ; expiration of his lease (I). An executor or adminis- cutororadmi- trator of any lessor may distrain for rent as his testator nistrator may or intestate might have done, but such distress must be within six calendar months after the determination of , the term or lease (m). distrain. The Six Carpenters' Case. The well-known case called " The Six Carpenters' Case " (w) decides the point that, where an authority or power is given to a person by the law, and such authority or power is abused by such person, he becomes a tres- passer ab initio, and a distress being such an authority or power, it followed from the above decision that if there was any irregularity in making the distress, the distrainor was from the moment of distraining a tres- (0 8 Anne, c. 14, s. 6. (m) 3 & 4 Wm. 4, c. 42, ss. 37, 38. (n) 1 S. L. C. 133; 8 Coke, 146, a. OF LANDLORD AND TENANT. 65 passer. This hardship has been remedied by statute (o\ The effect of which provides that if any renfis justly due, in the case a^^-gt^^g ^* ^" of irregularity the distrainor is not to be a trespasser altered by ah initio. But if a landlord is not merely guilty ofp^g'^g'j'g some irregularity, but distrains in an unauthorized way, he is then a trespasser from the commencement ; and if he makes an excessive distress an action may be brought against him for so doing. If the tenant ten- Tender of rent ders (v) the amount of the rent this will make the f ''^'^®! '^ 5'^' ^ ^-^ ' _ tress tortious. distress tortious (and although a warrant has been* delivered to a broker before the distress is put in, aj tender without expenses is good) ; if a tender is made after seizure, but before the impounding of the distress, it makes the detainer and not the original taking wrongful. The usual proceeding on a wrongful distress is by Replevin. replevin, the first step in which proceeding is to enter into a replevin bond before the registrar of the district county court with two sureties ; and on this being entered into the goods are re-delivered to the owner, who subsequently has to commence an action to try the validity of the distress, and if it goes against him he has to return the goods to the distrainor. Besides his remedy to recover rent by the summary other remedies process of distress, the landlord has another remedy to °^ '1 landlord ... l)6sid.6S distress recover it, viz., by simply bringing an action to recover j it, and he may also proceed to eject his tenant. At 'Action of. common law, before commencing an action for eiect- ^'J*^'^*^™™* ^t ..." "^ common law, ment on non-payment oi rent, it was necessary to make and under a demand for the rent at sunset on the last dav limited ^^J^ ^^ ^}':^' ■^ c. 7o s. *ilO. for paymeDt of the rent ; this demand, which was essen- tial, being a great point of inconvenience, it was pro- vided by the Common Law Procedure Act, 1852 {q), (o) n Geo. 2, c. 19, s. 19. (p) See as to a tender, post, eh. viii. pp. 198-1 99. (7) 15 & IT) Viet. c. 76, s. 210. 66 OF CONTRACTS AS TO LAND, AND HEREIN Amount of rent landlord entitled to sue and distrain for. Has a right against an execution creditor for one year's rent. Also in thf case of bankruptcy. , that it' half a year's rent is in arrear and there is no sufficient distress to be found upon the premises, the landlord may bring ejectment without the necessity of making any previous demand. If half a year's rent is not due or there is a sufficient distress on the premises, it will be observed that this provision is inapplicable, and if ejectment is resorted to it must be as at the common law, quite irrespective of the statute, with the formality of a demand. A landlord may sue for six years' rent, and if the demise be under seal for twenty years' (r). A land- lord may distrain for six years' rent, and if he does so 'before the goods are taken in execution for a debt, he jhas a right to the full six years' rent out of the goods ' notwithstanding the execution ; and in the case of the goods on the demised premises being taken in execution I before he has distrained, he has even then a right to j be paid one year's rent (if so much is due) before the goods are removed under the execution, and the sheriff is empowered to levy out of the goods and pay the execution creditor not only the amount of the execution but also such one year's rent which he has had to pay the landlord (s). The landlord has no right as against an execution creditor to more than the one year's rent, although more may be due to him, if the execution has been levied before he has made any distress for his rent (t). In the case of bankruptcy also a landlord has an \ advantage over other creditors, to the extent of one ' year's rent, it being provided by the Bankruptcy Act, ' 1869 (u), that " the landlord or other person to whom any rent is due from the bankrupt may at any time, either before or after the commencement of the bank- er) 21 Jac. 1, c. 16, s. 3 ; 3 & 4 Wm. 4, c. 42, s. 3. (s) 8 Anne c. 14, s. 1 . (t) Ibid. (m) ;52 & 33 Vict. 0. 71. OF LANDLORD AND TENANT. 67 ruptcy, distrain upon the goods or effects of the bank- rupt for the rent due to him from the bankrupt, with this limitation, that if such distress be levied after the commencement of the bankruptcy, it shall be avail- able only for one year's rent accrued due prior to the date of the order of adjudication ; but the landlord, or ( other person to whom the rent may be due from the ' bankrupt, may prove under the bankruptcy for the overplus due for which the distress may not have been' available " (x). If, during the continuance of a lease, the lessee be- On bankruptcy comes bankrupt, the position of his landlord for the dLdaim^iease remainder of the term is that the trustee in bankruptcy as onerous may take to the lease and hold it or deal with it gene- P*""?^^ ^' rally for the benefit of the creditors, or may disclaim it, as being onerous property, in which case the lease j will be deemed determined from the date of the order j of adjudication, and the landlord may then prove! against the bankrupt's estate for any injury or lossi caused him by such disclaimer (y). The landlord may make an application in writing to the trustee to decide whether or not he will disclaim ; and if the trustee i does not then disclaim within twenty-eight days, or such further time as may be allowed by the Bankruptcy Court having jurisdiction, he cannot afterwards do so (z). If a tenant is evicted, or his term is surrendered by Apportionment operation of law during the continuance of a current '^^^' ^^'''^■ year or half year or quarter, an apportionment of the rent is now, under the Apportionment Act, 1870 (a), made in all cases. On the breach by a tenant of the Tenant is covenants contained in his lease he is liable to be elected ^'.^'^i^)" ^^ . '' ejected on by his landlord ; but in the two cases of covenants to breach of ^ covenants. (x) 32 & 33 Vict. c. 71, s. 34. ly) Ibid. s. 23. («) Ibid. s. 24. These provisions as to disclaimer do not only apply to the relation of landlord and tenant, but to all cases of onerous property (a) 33 & 34 Vict. c. 35. F 2 68 OF CONTRACTS AS TO LAND, ETC. But relief given in two pay rent and to insure, the Court has power to relieve on the payment of the rent and costs in the one case (h) ; and in the other case, if shewn that the omission to insure arose through accident or mistake, or otherwise than from fraud or gross neglect, that no loss or damage by fire has happened, that there is at the time of the application an insurance on foot in conformity with the terms of the covenant, and also .provided relief has not previously been given or a pre- vious breach waived by the landlord out of court, and a memorandum of the fact of the relief has to be indorsed on the lease (c). Tenant has a right to satisfy any burden on the land out of his rent. The relation of landlord and tenant creates an im- plied consent by the landlord that the tenant may appropriate such part of his rent as shall be necessary jto indemnify him against prior charges, and that the 'money so appropriated shall be considered as paid on 'account of the rent ; so that if a tenant discharges some burden upon the premises prior to his own interest therein, it is considered as an actual payment of so much rent, and need not be set up as a set-off, but as an actual payment {d). (6) This was always so in equity, and as to the courts of law was so provided by 15 & 16 Vict. c. 76, s. 211. (c) This power was given to equity by 22 & 23 Vict. c. 35, ss. 4, 5, 6, and to law by 23 & 24 Vict. c. 126, s. 2. — ~ (d) 1 S. L. Cr'l67. 69 CHAPTER IV. OF CONTRACTS AS TO GOODS, AND HEREIN OF BAILMENTS, INCLUDING CARRIERS AND INNKEEPERS (e). The most usual, and therefore most important, kind of what is a contracts as to goods are for their sale, which has been ^^^^ °^ goods. defined as the transferring of property from one man to another, in consideration of some price or recom- pense in value (/). The majority of contracts for the sale of goods are undoubtedly simple and plain in their nature, but in very many such contracts intricate and difficult points arise as to the passing of property in the goods and the relative right of the vendor and vendee in the subject-matter of the contract ; and Whether the whether the property in goods has passed under a con- P^°P6i"^y "» ■t J- -^ o _ jc _ _ goods has tract is frequently a question of intention, to be passed is gathered from the expressions made use of in the "g^g"^^°j^*Jf* contract and the surrounding circumstances (p) . Of intention. course, if goods, on being sold, are actually delivered over to the purchaser, there can be no doubt whatever of the property at once passing to him ; but in many cases the goods may remain in the possession of the vendor whilst the property in them has passed to and is vested in the purchaser, so that any loss happening to them would have to be borne by the latter ; for, as is stated by Mr. Broom, in his Commentaries (h), " It is clear that, by the law of England, the property in a specific chattel may pass without delivery. It will so (e) As to the title to goods, see post_ Part ii. ' Torts.' ch. ii. p. 267. (/) Brown's Law Diet. 313. ((j) Broom's Corns. 391. (/i) Ibid. 394. 70 OF CONTRACTS AS TO GOODS, When the property in goods passed at common law as stated in Sheppard's Touchstone. Writing how- ever now sometimes necessary. Variation of first rule stated in Sheppard's Touchstone. pass when, at tlie time of the bargain, everything is already done which, according to the intention of the parties, was necessary to transfer the property ; the reason of this being, that the very appropriation of the ' chattel is equivalent to delivery by the vendor ; and the assent of the vendee to take the specific chattel and to pay the price is equivalent to his accepting pos- ' session. The efi'ect of the contract, therefore, is to vest the property in the bargainee." On this point it has been well stated that, at com- mon law, in either of the following cases, there is a good bargain and sale of a thing to alter the property thereof: — 1. Where the thing is to be delivered to the vendee at a day certain, and a day is agreed for payment of the money. 2. Where all or any part of the money is paid, or a payment is made by way of earnest ; or 3. Where, without any other circumstance, the ven- dee takes the thing into his possession («). In the first case above mentioned, now, as we shall presently see, writing is required, in many instances ; also such first case is not now strictly correct, for it is not necessary now for there to be an actual day fixed; the^property"'fQay pass without this (h). The rule on this point now is well explained by Parke, J. (Z) : " Where by the contract itself the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel and to pay the stipulated price, the parties are then in the same situ- (i) 1 Shepp. Touch. 224 ; see also Benjamin's Sale of Personal Pro- perty, 231. (k) Benjamin's Sale of Personal Property, 232. (0 In Dixon v. Yates, 5 A. & E. 313, 340. AND HEREIN OF BAILMENTS. 71 ation as they would be after a delivery of goods in pursuance of a general contract. The very appropria- tion of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel and to pay the price is equivalent to his ac- cepting possession. The efi'ect of the contract, there- fore, is to vest the property in the bargainee." Neither is the second case mentioned in Sheppard's The giving of Touchstone correct law now, so far as it relates to pay- earnest does ' ^ '' not now alter ment of earnest, for modern cases go to shew that the the property. giving of earnest does not necessarily pass the property! in the goods, but simply affords evidence of the con- clusion of the bargain, which is a very different thing to the property passing (m). But there are many cases in which the transaction When the may be simply inchoate and incomplete, and not pass P^'^Fi'^y [^ any property in the goods, as where the contract shewsAnot pass. that there is no intention to pass the property until j something has been done by the seller. Thus, in onel case, where, on the contract for the sale of goods, it was, according to the usage of trade, the duty of the seller to count them out, and before he did so the goods were destroyed by fire, it was held that the loss fell on the vendor (n). In another case, turpentine was bought at an auction, which, according to the conditions of sale, was to be weighed, and before it was entirely weighed it was destroyed by fire ; the Court held that the property had not passed in that portion of the goods which had not been weighed (o). And — to take one more case — where the defendant had contracted for the purchase of the trunks of certain trees, and the custom of the trade was that he should measure and mark the portions he wanted, and that the vendor should then (m) See Ball v. Owen, 5 T. R. 409 ; Hinde v. Whitehouse, 7 East, 558; Benjamin's Sale of Personal Property, 260-262. («) Zarjury v. Furndl, 2 Camp. 240. (o) R^lgg V. Minett, 11 East, 210. 72 OF CONTRACTS AS TO GOODS, cut oft' tLe rejected parts, it was held that no property had passed in the goods until such rejected parts had been actually severed (j?). When property Where goods, part of an entire bulk, are sold, no parTof aif'^*'' ^ property passes in them until separated and set apart entire bulk, from the bulk and absolutely appropriated to the pur- chaser (q). It is sometimes the vendor, and sometimes the purchaser, who has the right of selecting the par- ticular goods from the entire bulk; and the rule is, that " the party who by the agreement is to do the first I act which, from its nature, cannot be done until the election is determined, has authority to make the choice ' in order that he may be able to do that first act ; and, when once he has done that act, the election has been irrevocably determined, but till then he may change . his mind " (r). An instance of when the right of appropriation will be in the purchaser may be found in the case of the sale of a certain number of bricks out of a stack of bricks, and it being provided that the pur- chaser shall send his cart to take them away. Here the first act has to be done by the purchaser, and he, there- fore, has the right of appropriation. He may choose which of them he likes, but as soon as he has once put them in his cart to be fetched away the appropriation is complete and the property has passed. But if in such a case the contract was that the vendor should load a ,1^^ them on the purchaser's cart, here the right of appro- r ■ 'TV* priation would be in the vendor, for the first act is to be done by him ; and in all cases of appropriation by , the vendor such aj)propriation must be assented to by When the I the vendee before the property will pass («). In the property ,^-^^^ ^^ ^^ Contract to make any article (though an passes m goods . "^ \ o to be made. actiou would of coursc lie for the breach of the con- tract), the property therein will not pass until there (p) Acranvm v. Morris, 8 C. B. 449. ('/) See Dixon v. Yates, 5 B. & Ad. .313. (/•) Benjamin's Sale of Personal Property, 204. (s) Ibid.' AND HEREIN OF BAILMENTS. 73 has been a subsequent appropriation thereof made by the vendor and assented thereto by the purchaser. And so also a grant of goods not in existence, or not belonging either actually or potentially to the grantor at the time, is of no effect, unless the grant is after- wards in some way ratified by him after acquiring a property in them (t). The mere fact of the price not being mentioned in the contract does not prevent the property passing, for it may be either a price to be thereafter agreed on, or what the things are reasonably : worth (u). Generally, upon this subject, in answer to the ques- General answer tion of when does the property in e;oods pass, it will be to question ot i. ' tJ o X J ^ when property best to found the answer upon what has been previously in goods passes. stated from Sheppard's Touchstone, as varied, as also stated (w), and say that the property will pass where there is a valid and complete contract, or the price has been fully or partly paid ; provided that in each of these cases the goods are in existence and no act remains to be done by the vendor, or the vendee has acquired possession of the goods. Contracts as to goods are in many cases required by statute to be by writing. By the 4th section of the Statute of Frauds {x) it is 4th section of provided that no action shall be brought whereby to f}^^^}'^ °f 1 1PT /• 7>\ trauds as charge any defendant ujDon [inter aha) any contract applying to not to be performed within one year from the making *=°f *^^,*=*^® ^°^' ■'• . . -^ o sale 01 goods. thereof. This section has already been discussed (ij), and it is sufficient here to say that, applying to all contracts not to be performed within a year, it includes contract as to goods. (t) Bobinson v. Macdonnell., 5 M. & S. 228. (m) Acehal v. Levy, 10 Bing. 376 ; Hoadhj v. McLaine, 10 Bing. 482. (w) Ante, pp. 70, 71. (x) 29 Car. 2, c. 3. (t/) Ante, p. 43, and note the case of Peter v. Cuinpton there referred to on its construction. 74 OF CONTRACTS AS TO GOODS, 17th section of Statute of Frauds. jjjJ^ Construction put on this section. Provision in Lord Tenter- den's Act in consequence. Writing not absolutely necessary under 17th section of Statute of Frauds. Distinction between earnest and part payment. By the 17th section of the Statute of Frauds it is enacted thai^T^no contract for the sale^oTlmy goods, wares, and merchandises (z), for the price of £10 sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." On the construction of this section it was decided by several cases (a) that it did not apply to contracts to make or deliver goods not in existence at the time of the contract, and therefore not capable of delivery or part acceptance at the time of the hargain, and, in consequence, it is provided by Lord Tenterden's Act (5), that such section " shall extend to contracts for the sale of goods of the value of £10 sterling and upwards, notwithstand- ing the goods may be intended to be delivered at some [future time, or may not at the time of the contract be factually made, procured or provided, or fit or ready for ^delivery, or some act may be requisite for the making jor completing thereof or rendering the same fit for delivery." This enactment must be read and construed as if incorporated with the Statute of Frauds (e). The memorandum required by the 17th section of the Statute of Frauds has been before touched on in treating of the statute generally {d), but the student will note that writing is not an absolute essential, as there may be instead either part payment, or earnest, or acceptance and receipt. Earnest is a matter quite distinct from part payment, («) A horse or other animal would be within the expression goods, wares, or merchandise. (a) See them cited in Benjamin's Sale of Personal Property, 74. (6) 9 Geo. 4, c. 14, s. 7. (c) Scott V. Eastern Counties Fi>j. Co., 12 M. & W. .'j:3 ; Hartaan v. Reeves, 25 L. J. (C.P.) 257. (d) Ante, pp. 44, 45. AND HEREIN OF BAILMENTS. 75 being some gift or token given by a buyer to a seller, not on account of but quite irrespective of the price; part payment is simply an actual payment of money on account of the price. The giving of earnest is not often a course adopted now, though part^ payment^ is frequently (e). On the point of part payment or earnest, also, it What will may be noticed that an actual payment is necessary, so g^^^ggt ^° that what is called in the north of England " striking part payment. off " a bargain, i.e., drawing the edge of a shilling over the hand of the vendor and not paying him the money is not sufficient (/) ; but delivery of a bill of exchange or promissory note is, because it amounts to payment until dishonoured (g). The acceptance and receipt require a slightly more ^s to accept- detailed explanation. ^^^^ «°*^ , ■^ receipt under 17th section The words of the statute are that the buyer shall of Frauds. " accept and actually receive " part of the goods sold, and the receipt of the goods implies a delivery which may be either actual or constructive, and the construc- tive receipt may be evidenced in many difierent ways, e.g., the delivery of the key of a warehouse (h). The first point for the student to notice upon this accep- tance and receipt is that they are two distinct things, which has been well explained by Mr. Justice Black- burn thus : " It seems that this provision is not com- Distinction plied with unless the two things concur, the buyer must between the ,-,, iin • i^ii 1 acceptance and accept, and ne must actually receive part oi the goods, receipt as ex- and the contract will not be erood unless he does both, plained by ° Mr. Justice Blackburn. (e) See Benjamin's Sale of Personal Property, 143. (/) Blenkinsop v. Clayton, 7 Taunt. 597. ((/) Chamberhjn v. Delarke, 2 Wils. 253 ; see Benjamin's Sale of Personal Property, 146, 598. (Ji) Broom's Coms. 406, 407. 76 OF CONTKACTS AS TO GOODS, And this is to be borne in mind, for as there may be an actual receipt without any acceptance so there may be an acceptance without any receipt. In the absence of authority, and judging merely from the ordinary mean- ing of language, one would say that an acceptance of part of the goods is an assent by the buyer meant to be final, that this part of the goods is to be taken by him as his property under the contract, and so far satisfying the contract. So long as the buyer can without self-contradiction declare that the goods are not to be taken in fulfilment of the contract he has not accepted them. And it is immaterial whether his refusal to take the goods be reasonable or not. If he re- fuses the goods, assigning grounds false or frivolous, or assigning no reason at all, it is still clear that he does not accept the goods, and the question is not whether he ought to accept, but whether he has accepted, them. The question of acceptance or not is a question as to what was the intention of the buyer as signified by his outward acts. " The receipt of part of the goods is the taking posses- j sion of them, when the seller gives to the buyer the actual 1 control of the goods, and the buyer accepts such coiitrol, he has actually received them. Such a receipt is often evidence of an acceptance, but it is not the same thing ; indeed the receipt by the buyer may be, and often is, for the express purpose of seeing whether he will accept or not. If goods of a particular description are ordered to be sent by a carrier, the buyer must in every case receive the package to see whether it answers his orders or not ; it may even be reasonable to try part of the goods by using them ; but though this is a very actual receipt it is no acceptance so long as the buyer can consistently object to the goods as not answering his order. It follows from this that a receipt of goods by a carrier, or on board ship, though a sufficient delivery to a purchaser, is not an acceptance by him so as to bind AND HEREIN OF BAILMENTS. 77 the contract, for the carrier if be be an agent to receive is clearly not one to accept the goods " (i). In many cases a mere receipt of goods by the vendee Receipt may in may, however, amount to an acceptance of them by him, ^^^^^^J'J'q ^^ but in as many other cases not, e.g., if goods are sold acceptance and sent to vendee on approval, there the vendee, '"^^ ^^ though receiving the goods, cannot be said to have accepted them unless he approve of them and elects to keep them. Numerous decisions on this point are stated by Mr. Broom in his Commentaries on the Common Law (k), and also in Mr. Benjamin's treatise on the Law of Sale of Personal Property (I), and they certainly do not all agree with each other, perhaps because, as suggested in the former work, the points of acceptance and receipt seem to be questions more of it is a question fact than law, and the difficulty lies in estimating the than of kw! weight of proof adduced. To endeavour to sum up an Summary on answer to the question of what will amount to a suffi^ '* '^ ' cient " acceptance and actual receipt " within the statute, we shall be tolerably correct in stating that there must be a delivery actual or constructive, and the vendee must by his acts either prior to or contempora-1 neously with the receipt have signified his acceptance | in some way, but that what is or is not an acceptance ; is a question principally of fact depending on the dif- ' ferent circumstances of each particular case. In an ordinary contract for the sale of goods if no- What must bo thing is agreed to the contrary either expressly or vendo/or impliedly, the vendor before he can bring an action for, vendee before their price must have delivered the goods, and on the contract for other hand, the vendee before he can sue for the non- sale of goods. delivery of the goods must have paid or tendered the (j) Blackburn on Sales, 22, 23, quoted in Benjamin's Sale of Personal Property, 110, 111. (k) Pages 406-411. (/) Pages 111-142 78 OF CONTRACTS AS TO GOODS, '^*)U H^v.'S'Lj AH^"^^^ such person having a claim upon its owner (o) ; and it („k/ti./»aj u^ 7^^/2 ^^J ^^ either general, e.g., the right of a solicitor to ■j..iiji^k^u_^ retain his client's papers for a general balance due to ^■■^'^^^- him, or particular, e.g., the ordinary right of a vendor to retain particular goods until payment of their price ; the law leans in favour of a particular, but against a general lien which will only be allowed when there is a custom to that effect. The lien in both cases can only ' be commensurate with the interest of the person through whom it arises, and it may be lost by the vendor taking a security for payment, e.g., a bill of exchange or pro- missory note ; but if such instrument is dishonoured i the right of lien will revive if the instrument is still in the hands of the vendor, though not if outstanding in No lien a third person's hands ( jj). Where, too, goods are sold where* goods ^^ credit, the vendor has no right of lien, for that sold on credit, would be Contrary to the contract ; but, notwithstanding this, it has been decided that if before delivery of the goods the vendee becomes insolvent, the vendor may re- fuse to deliver, and may withhold them until payment (q). And notwithstanding that if goods have been sold on credit a vendor has no right of lien, yet if the vendee L permits them to remain in the vendor's possession till ! the period of credit has expired the right of lien revives I and attaches (r), A lien can A lien can of course only exist before the goods have only exist be- |^ delivered to the purchaser, and the mere markine fore delivery. ... . " of goods remaining in the vendor's possession by the purchaser, or putting his name upon them, or other (m) Chitty on Contracts, 405. (n) Ibid. 391. (o) Brown's Law Diet. 218. Ip) Chitty on Contracts, 392. (7) Ex parte Chalmers, L. R. 8 Ch. App. 289. (r) Bunnay v. Poyntz, 4 P.. k A. 568; VaJpy v. Oakley, 20 L. .1. (Q.B.) 380. AND HEREIN OF BAILMENTS. 79 like acts, will not constitute a delivery sufficient to de- prive the vendor of his right of lien (s). A lien is a right of a passive nature, and does not A lien is a confer on the vendor any power to sell the goods (t). P^^*^^^ "§ Closely akin to the right of lien is a further right of Definition of the vendor of goods, viz., stoppage in transitu, which is tJ.°nsftu^"^ the prevention of wrong by a mere personal act, being the right of the vendor to stop the goods after they have left his possession, but are in course of transit to the vendee, on hearing of the vendee's bankruptcy or insol- vency. The doctrine of stoppage in transitu seems to be The doctrine borrowed from equity (w), and the recognised leading 3°^^^^^*^^^™ case on the subject is that of LicMarroiv v. Mason (x), zickbarrow which establishes clearly the doctrine itself, and in ^- ^<^son. addition lays down the rule that it may be lost by the How the right bill of lading for the goods being indorsed {tj) by the ™^y ^'^ '°^*- vendee to a hona fide indorsee for valuable considera-i tion without notice of the bankruptcy or insolvency; The right, as its name imports, only exists whilst the goods are in transit, and directly they come into the actual or constructive possession of the vendee the right is gone. It is not always easy to decide whether goods are " in transitu " or not, for there may be cases of constructive possession of the vendee not always very apparent ; the rule to be collected from all the cases has been well stated to be " that they are in transitu sojWhen the long as they are in the hands of the carrier as such,'|^j^^ whether he was or was not appointed by the consignee,. transitu." and also so long as they remain in any place of depositj connected with their transmission. But that if, after) (s) Dixon V. Yates, 5 B. & Ad. 313 ; Marvin v. Wallace, 25 L. J. (Q.B.) 369. (t) Per Alderson, B., White v. Spettigue, 13 M. & W. 608. (m) Wiseman v. Vanderput, 2 Vern. 203, seems to be the first case in which it was acted upon. (x) 1 S. L. C. 756; 2 T. R. 63. (.!/) This means by the goods being sold for value : the bill of lading is the document of title to them, and is negotiable. s can bo he 80 OF CONTRACTS AS TO GOODS, The vendee may shorten the period ot' transit. their arrival at their place of destination, they be "warehoused by the carrier whose store the vendee uses as his own, or even if they be warehoused by the vendor himself and rent be paid to him for them, that puts an end to the right to stop in transitu" (z). The mere giving of a delivery order to the purchaser does not operate as a constructive delivery of the goods so as to prevent the right of stoppage in transitu (a), and if the vendor only delivers part of the goods, intending to retain the remainder, his right of stoppage will still exist in respect of the remainder unless the delivery of the part is in the name of the whole, in just the same way as the right of lien would also exist in any part of the goods retained in the vendor's possession. The vendee may shorten the period of transit by taking them from the possession of the carrier before the ordinary time, and if the goods ought to be given up by the carrier he cannot prolong the vendor's right of stoppage by im- properly refusing to give them up (b). When the transitus is once ended no subsequent transit can revive the vendor's right. How the stoppage in transitu may be effected. For the vendor to exercise this right, it is not essen- tial that he should actually seize the goods, but the stoppage may be effected by giving a notice to the carrier or other forwarding agent. If a servant of the carrier is conveying the goods, notice may be given to the servant or the principal ; but if to the principal, it must be given in time to enable him to inform the servant before he delivers them (c). Wentw(jrth v. Outhiraife. In the case of Wentworth v. Outhwaite (d), in the judgment of the Court, it is stated as follows : "What the effect of stoppage in transitu is, whether entirely (z) 1 S. L. C. 818, 819. (a) M'Ewan v. Smith, 2 H. of L. Cas. 209. (6) 1 S. L. C. 822, 823. (c) Whitehead v. Anderson, 9 M. & W. 518. (,/) 10 M. & W. 4r.l. AND HEREIN OF BAILMENTS. 81 to rescind the contract, or only to replace the vendor in the same position as if he had not parted with the possession, and entitle him to hold the goods until the price is paid, is a point not yet finally decided ;" but the majority of the Court there were of opinion (Better opinion that it is not a rescission of the contract, hut at the jQ^transltu'^^ most a re-vesting of the possession in the vendor, and does not there seems but little doubt that this is the correct law^cc"^ on the subject. contract. As before stated, this right may be lost by the hond Assignee of fide indorsement of the bill of lading without notice aorseirof and for value. Formerly, however, any such assignee bill of lading would not have been able to sue in his own name, but his^own^name this was altered by 18 & 19 Vict. c. Ill ; and, in addition to this statute, it may here be also noticed that now, under the provisions contained in the Judi- cature Act, 1873 (e), any absolute assignee of a chose in action, after giving notice of the assignment to the debtor, trustee, or other person from whom the assignor would have been entitled to claim, may sue in his own name. The rights of a vendor having sold goods are, if the Rights of a property in them has not passed to the vendee, to sue breach b^ him for damages for his breach of contract ; and if the vendee. property has passed, to sue him for their price ; and in this latter case, although the vendor has retained the goods in respect of his lien, the action will equally be ! " for the price of goods sold " in just the same way as if they had been delivered (/). If the vendor does not duly deliver the goods, the vendee's right will be to bring an action in respect of the breach of contract ; and by the Mercantile Law Amendment Act (g) it Mercantile is provided that in all actions for breach of contract Law Amend- ^ ment Act, 1856. (e) 36 & 37 Vict. c. 66, s. 25 (6). (/) See Judicature Act, 1875, 1st Sched., Appendix A., part 2, sec. 2. ((7) 19 & 20 Vict. c. 97, s. 2. See this also noticed, post, part iii. ch. i. "On Damages," pp. 351, 352. 82 OF CONTRACTS AS TO GOODS, to deliver specific goods for a price in money, on ap- plication of tlie plaintiff, and by leave of the presiding judge, the jury, if they find for the plaintiff, shall also find (1) what are the goods in question, (2) what (if any) is the sum the plaintiff would have been liable to pay for delivery thereof, (3) what damage the plaintiff will have sustained if the goods should be delivered under execution as thereinafter mentioned, and (4) what damages if not so delivered ; and thereupon, on judgment for the plaintiff, execution may be ordered to issue for the delivery of the goods (on payment of such sum (if any) as shall have been found to be payable by the plaintifi" as aforesaid), without giving the defendant the ' option of retaining the same upon paying the damages ' assessed. Definition of A Warranty is sometimes given by a vendor of goods a warranty, qj^ their salc. A Warranty may be defined as some undertaking expressly given or arising by implication on the sale of goods ; and an untrue warranty is not the same as a misrepresentation, for that precedes and induces the contract, and gives the person to whom it is made the right to repudiate it, whilst a warranty is made contemporaneously with the contract, and its breach does not at all vitiate it, but gives the right to the remedies hereinafter detailed (A). A warranty, too, should be carefully distinguished from a gua- rantee (^). Warranty On an exprcss warranty, it must be noted that if ^"i^'^b^r"* *° naade subsequently to the contract, it would be void and of no efiect for want of consideration (k) ; and as to What will what will, and what will not, amount to a warranty, amount to ^]^g j.^|g g^^ ^]^g present day has been well stated to be a warranty. rv • that " every aflarmation at the time of a sale of person al (/<) On this distinction see notes to Chandclor v. Lopus, 1 S. L. C. 174, ]7o, and also the case of Paslcy v. Freeman, 2 S. L. C. 64. {i) As to which, see ante, jjp. 40-42. (k) Jioscorla V. Thomas, '6 Q. B. 234. AND HEREIN OF BAILMENTS. 83 chattelsjg a warranty, provided it appears to have been so intended " (Z). It would appear, upon tliis rule, that tTiie well-known case of Chandelor v. Lopus (m) would now Chandehr v. be decided differently, foi~"there,' on the sale of a stone, ^^°^'"^- it was affirmed that it was a Bezoar stone, and yet it was held no action lay. However, if, on any contract for sale, the words used are merely the ordinary puffing of the articles, no action will lie ; and though the above rule is plain, yet the most that can be said on it is that it must be a question of intention in each particular case. An implied warranty may sometimes arise gene- implied rally and universally, e.g., on the sale of certain specified p^^^" ^■ goods, there is an implied warranty that they exist and j are capable of transfer ; or such a warranty may arise j sometimes by the mere custom or usage of some par- ' ticular trade or business. As to whether there is on the sale of goods any im- Wan-anty plied warranty of title, the rule has usually been stated °^ *''^'®- to be that there is not (n) ; but this is an old rule, to which various exceptions have been introduced, and Mr. Benjamin, in his treatise on the Law of Sale of Per- sonal Property (o) (to which the student is referred for an examination of the cases on the point) says : " The Rule as stated rule at present would seem to be stated more in accord- g^ie^o'f ^™''^'' ance with the recent decisions, if put in terms like the Personal following: — A sale of personal chattels implies an affir-5 ^"^'^^ ^' mation by the vendor that the chattel is his, and therefore! he warrants the title, unless it be shewn by the facts and circumstances of the sale that the vendor did not intend to assert ownership, but only to transfer such interest as he might have in the chattels sold." This is, it is; submitted, the most correct way of answering the question. Is a warranty of title implied on the sale of goods ? (0 Per Buller, J., in Pasley v. Freeman, 3 T. R. 37. (m) 1 S. L. C. 173 ; 2 Coke, 2. (n) Morletj v. A ttcnboronqh, 3 Ex. 500 ; Chitty on Contracts, 407, 408. (o) Fage 523. j , 84 OF CONTRACTS AS TO GOODS, No warranty There IS also, generally, no implied warranty of tlie of goods ' ' ^ quality of goods, the maxim of caveat emptor (let the generally, the buyer beware) applying: but where they are expressly cai-eat emptor. I sold for a particular purpose, there is an implied war- \ ranty that they are reasonably fit for that purpose ; I also, on the sale of provisions, there is an implied war- ranty that they are wholesome ; and on the sale of goods by sample there is an implied warranty that they will accord to the sample, but nothing further. Warranty And if any article is sold with a trade-mark, label, or mark &c. ' ticket, &c., thereon, or any statement thereon of the weight, quantity, or quality thereof, a warranty is im- plied that the trade-mark, label, or ticket, &c., is genuine and true, and that any such statement is not in any material respect false, unless the contrary is expressed in writing, signed by or on behalf of the vendor, and delivered to, and accepted by, the ven- dee {p). A warranty If a fact is known to a purchaser at the time of the tend to*^ '^^' ^^^®' °^ might have been so known to him (take, for apparent instance, the familiar example of a horse being war- defects, ranted sound, and wanting an ear or a tail), a warranty will not protect the purchaser ; and where an article is sold expressly with all faults, the only case of defect for which the purchaser can sue the vendor is where the vendor has used artifice to prevent the purchaser discovering it. It would not be sufiicient to merely shew that the vendor knew of the defect {q). A war- ranty does not extend to protect a purchaser from some latent defect which the vendor could not with reasonable skill or diligence have discovered (r). K.-mcdies for In all cascs of brcach of warranty there are two breach of warranty. (/>) 25 & 26 Vict. c. 88, ss. 19, 20 ; Chitty on Contracts, 407, 416. As to trade-marks geneiaTIy, see post, pp. 152-ir}4. (//) Chitty on Contracts, 418. (;•) Randnll v. Ne^rsom, 4r. L. J. (Q.B.) 364. AND HEREIN OF BAILMENTS. 85 remedies open to the purchaser, viz., (1) he may sue ( ^i fl^ 4^ for damages for the breach of the warranty, and (2) in (u^^jijt. » %J^ ^ LA an action brought against him for the price, he may ,. j*' -^ ^ ^ set off the breach in its reduction. In the case of an t ^^ t /!^ executory contract, i.e., where goods are to be made, ^ /l... ^ ^ ^ ,^ there is an additional remedy open to the purchaser; for, provided he has not precluded himself by doing more than examining or trying the article, he is en- titled to return it. So, also, he may return goods sold according to sample (s). There seems to be no doubt (notwithstanding Black- There may be stone {t) states to the contrary) but that there may be ]J Su^e^Sent a warranty for a future event (u). Goods are frequently delivered to some person not their absolute owner, and a bailment thus constituted. A bailment has been defined as " a delivery of a thing Definition of in trust for some special object or purpose, and upon ^ '^^•I'^ient. an undertaking express or implied to conform to the object or purpose of the trust " (w). Different classi- Division of fications of bailment have been given, but perhaps the Loi-rHdt'^in best is found in the judgment of Lord Holt, in the Coggs v. leading case of Co^gs v. Bernard {x), where they are ^'""'*'^ ' divided as followsT^^^^ ' 1. Deposiium — where goods are delivered to be kept by the depositee without reward for the bailor ; 2. Commodatum — where goods are lent to some person gratis to be used by him ; 3. Locatio rei — where goods are lent out to a person for hire ; (s) Chitty on Contracts, 419. (0 3 Bl. Com. 166. (m) Chitty on Contracts, 419-422, and the authorities there cited. (io) Broom's Corns. 785. (x) 1 S. L. C. 194; Lord Raymond, 909. 86 OF CONTRACTS AS TO GOODS, 4. Vadium — where goods are pawned or pledged ; 5. Loeatio operis faciendi — where something is to be done to goods, or they are to be carried for reward ; and 6. Mandatum — where goods are to be carried gratis. Depositum and Of the abovc, let US first deal with those bailments mandatum. ealled dspositum and mandatum, they being exactly similar to each other in respect that each is the doing of some act voluntarily and without reward. Now, in any case of a merely voluntary nature a person cannot be compelled to do the act required, for a simple contract requires a valuable consideration (y), and therefore it is said that a voluntary bailee is not liable for non feasance, so that though from his not doing what he has contracted to do damage may have arisen to the other party, yet he is not liable (z). But if a bailee enters upon the bailment, as by accepting a deposit of goods, there is sufficient consideration by the entrusting of , him to create a duty in him to perform the matter pro- ; perly, and if he does not do so he is liable, if he is i guilty of such default as to amount to gross negligence, and the before-mentioned case of Co^gs v. B ernard (a) Facts in Co;;gs is a direct decision on this point. The facts in that V. Bernard. ^^^q ^gj,g ^^mt the defendant had promised the plaintiff to take up several hogsheads of brandy then in a cer- tain cellar, and lay them down again in a certain other cellar safely and securely ; and by the default of the defendant one of the casks was staved, and a quantity of brandy spilt. It was decided that the plaintiff was entitled to recover, notwithstanding the defendant was not to be paid, but that a voluntary bailee was only liable for gross negligence. This, then, is the general (y) Ante, p. 27, 31. (z) Elsee v. Gatward, 5 T. R. 143. yi) 1 .S. L. C. 188; Lord Raymond O09. AND HEREIN OF BAILMENTS. 87 principle of law governing the liability of voluntary bailees, but it has been in some slight degree altered, it being now decided that if a voluntary bailee is in such a situation as to imply skill in what he undertakes to I do, an omission to use that skill is imputable to him as ■' gross negligence (h). Thus in the case cited below (b), it was held that a wuson v. person who rode a horse for the purpose of exhibiting ^''^^*' and offering him for sale, though he was to receive no reward for doing so, was yet bound to use such skill as he possessed, and that he being proved to be conversant with and skilled in horses, was equally liable with a bor- rower for an injury done to the horse. In the above cases of mandatum and depositum the reason of the bailee being only liable for his gross neglect is the fact of the bailment being altogether for the bailor's benefit; but in the case of the bailment called eommodatum, as the benefit is reversed to the Commodatim. bailee so is the liability difi'erent, and here the bailee will be strictlv bound to use the utmost, care, and will be liable for even slight neglect, so that if a person lencls~a horse to another, and he lets his servant ride it, and it is injured without any fault on his or his ser- vant's part, that will be quite sujBficient slight neglect on his part to render him liable, for the horse was lent to him, and he had no right to let his servant ride it (c). In the bailment loeatio rei, or hiring of goods, the Locatio rd. bailee is bound to use ordinary diligence, and is liable for ordinary neglect, for here the bailment operates for the benefit of both parties ; for that of the bailee in that he has the use of the goods, and for that of the (6) Wilson V. Brett, 11 M. & W. 113 (c) 1 S. L. C. 215. 88 OF CONTRACTS AS TO GOODS, bailor in that he has the amount agreed to be paid for the hire. Vad:um 01- So also thc bailment vadium, or pawn, is for the fignori benefit of both parties, the pawner getting a loan of acceptum. ^ ' ^ p i i j. > i money and the pawnee getting the use oi the chattel, or interest, or both, and so the liability of the pawnee is only to use ordinary diligence. To constitute a valid pTeJge there must be either an actual or constructive delivery of the article to the pawnee, and the bailee here looks^not only to the property but to the person of the bailor, for if the subject of the bailment is lost and the bailee has used a proper amount of diligence, and the loss has occurred without any fault on his part, he may sue the bailor for the amount of the debt (d). It is not sufficient to exonerate a bailee from responsi- bility for the loss of the subject of the bailment to shew that it was stolen, but he must also shew that he used due care to protect it (e). As to the right of the bailee in this kind of bailment, it was stated by Lord Holt in his judgment in Cog(/s v. Bernard (/) that if it will do the article no harm he may use it (as, for in- 1 stance, the wearing of a jewel pawned), but such user ' will be at the peril of the bailee ; but if the article will ' be the worse for using, then it must not be used, and ' the law now seems to be that the pawnee is generally never justified in so using the article pawned, except it be of such a nature that the bailee is at some expense to maintain it (as, for instance, a horse which would require to be fed), for in such a case as this the bailee may use it in a reasonable way to recompense him for his expenditure {(/). Distinctions A pawn requires to be carefully distinguished from between a pawn, a lien, (c/) 1 S. L. C. 219. (e) Chitty on Contracts, 432. (/) 1 S. L. C. 201. (;/) See Ibid. ; Chitty on Contracts, 433. AND HEREIN OF BAILMENTS. 89 a lien, and from a mortgage of personal estate (h). A and a mort- lien but gives a right to retain property and no active pgfs^o°ai right in respect of it (i), a mortgage passes the actual property. property in the goods to the mortgagee, but a pledge simply gives a special or qualified property, and a limited right of possession. The proper remedy of a pawnee to recover his money is on reasonable notice to sell the subject of the pledge or to sue, or if necessary he may adopt both remedies (k). A certain practically very important kind of pawnees Pawnbrokers. or pledgees are pawnbrokers, and at common law they stand on the same footing as other bailees of that class, and liable, therefore, as before stated. But it must appear that the system of pawning to those who make it their special and peculiar business is open to many abuses, both from the necessities persons may be under to induce them to pledge, the desire of others to part with things to which they have no right beyond that of possession, and the opportunities that pawn- brokers may have of advantaging themselves to the injury of the pawners, and accordingly the legislature has specially dealt with the subject. The present statute is the Pawnbrokers Act, 1872 (?), which, how- Pawnbrokers ever, only deals with loans up to the sum of £10, and -^*^^' ^^^^• as to loans beyond that amount the ordinary law of pawns applies (»i). By this statute every pledge must be redeemed within twelve months from the day of pawning, with seven additional days of grace (n), and if not redeemed within that time, and the amount for which the article is pledged does not exceed 10s., it becomes the pawnbroker's absolute property (o) ; but if for above 10s. then it is still redeemable until actual (A) See 1 S. L. C. 217. (i) See ante, p. 79. ik) 1 S. L. C. 216, 217. (0 35 & 36 Vict. c. 93. (m) On the old law, see Pennell v. Attenboroutjh, 4 Q. B. 868. (rt) 35 & 36 Vict. c. 93, s. 16. (o) Sec. 17. 90 OF CONTRACTS AS TO GOODS, sale (jj), and any such sale is only to be by public auction, and the surplus after the costs of the sale and Pawnbroker is the amount of the pledge is to be accounted for (q). As Habie* formless ^ *° ^^ i^J^^T ^0 thc subjcct of the pledge by fire, formerly by fire. the pawnbroker was not liable unless it was proved that the fire took place through his default or neglect, but now he is absolutely so liable, and is, to protect ' '^vj*,'* iv-^iM* ' liiiiiself, empowered to insure to the extent of the value f of the goods (r). Formerly, also, as to goods which had been stolen, neither the pawnbroker nor a purchaser from him had a right to retain the goods as against the true owner, but now, upon conviction of the thief, the Court has a discretion to allow the pawnbroker to retain the goods as a security for the money advanced, or to order them to be returned to the true owner (s). If by the default or neglect of the pawnbroker the pledge suffers any injury or depreciation the owner may recover summarily a reasonable satisfaction for the same (t). Locatio There remains but to consider that kind of bailment opcris faciencU. classified by Lord Holt as locatio operis faciendi, and as to this it is of two kinds ; either a delivery to one exercising a public employment, e.g., a carrier,. or a delivery to a private person, e.g., a factor or wharfinger. In the case of As to this latter kind they are only liable to do the' private persons -j^^g^ ^l^p ^.^jj ^j. ^^^ other words, are bound only and those -^ ' '. ' / exercising to usc Ordinary diligence, so that such a bailee would em ?lo' ment ' ^*°^ ^® liable for a robbery of goods happening without his fault, but in such a case it would have to be very clearly shewn that no care on his part could have pre- vented the robbery. On the other hand, as to the former kind, such a bailee stands in the position of / an insurer liable for all losses, except those occurring by the act of God (u) or the king's enemies, and (p) 35 & 36 Vict. c. 93, s. 18. (7) Sec. 19. (r) Sec. 27. (s) Sec. 30, . (i) Sec. 28. (m) As to what will amount to an " act ?f God," we may quote the AND HEREIN OF BAILMENTS. the reason on which this rule is founded has been stated with regard to carriers as follows : — " This is a politic establishment contrived by the policy of the law for the safety of all persons, the necessity of whose affairs oblige them to trust these sort of persons, that they may be safe in their ways of dealing ; for else these carriers might have an opportunity of undoing all persons that had any dealing with them by com- bining with thieves, &c., and yet doing it in such a clandestine manner as would not be possible to be discovered " (x). But the above, though the correct rule at common law, is not so now, and it will be best to consider now seriatim the law of carriers, and then pass on to the law of innkeepers. A common carrier has been defined as one who under- DeHnition takes to transport from place to place for hire the °^ common goods of such persons as choose to employ him (y), and the rule is that to constitute a person a common carrier he must hold himself out expressly, or by course of conduct, as ready to engage in the transporta- tion of goods for hire as a business, not merely as a casual occupation pro Jiac vice, and that a person who may undertake chance jobs is not a common carrier (z) ; also that he must be a person plying from one fixed terminus to another ; but it has been held in a re- cent case that a barge-owner who let out a barge to different persons for different voyages was a common words used by Brett, J., in delivering the judgment of the Common Pleas Division of the High Court of Justice, in the recent case of Nugent v. Smith (L. R. 1 C. P. Div. 22, 23) : " An injury can only be said .... to have been occasioned by the act of God, when it has been occasioned ' directly and not indirectly by the extraordinary action of some physical force, the consequences of which could not be averted, or by some un- expected and extraordinary natural occurrence, which human foresight could not foresee, nor human power resist or prevent." It should, how- ever, be noticed that the direct decision in this case has lately been reversed on appeal (see Law Journal, Notes of Cases, 17th June, 1876, p. 133), but what is, stated above does not appear to have been dissented from. (.r) Per Lord Holt, in his judgment in Coggs v. Bernard, 1 S. L. C. 202. \ij) Palmer v. Grand Junction By. Co., 4 M. & W. 247. (^) Chitty on Contracts, 439. 91 92 OF CONTRACTS AS TO GOODS, carrier, and liable as such, although he did not ply- between any fixed termini, and the customer fixed in each particular case the point of arrival and depar- ture (a). Kail way companies, as to goods which they ordinarily carry, are common carriers. Liability of The liability of a carrier at common law was for every carriers at j^^g exccpt it arosc by the act of God or the king's common law. ' ^ " ^ ,t ■ t ti-ti enemies, and the reason of this extraordinary liability was as has been stated by Lord Holt in his remarks on the subject already set out (h). It was fully in the power of carriers however to make any special contracts with their customers, in which their liability might be limited in any way agreed upon, and it became their practice to put up in their warehouses notices limiting their liability, and then if it could be proved that such a notice on which a carrier relied was brought to the ' knowledge of any particular customer, then as to him it was held to constitute a special contract, but if it could not be brought to his knowledge it was utterly inefi'ectual. No such notice, however, exonerated the carrier from liability for gross negligence (c). It was evident that this state of things could not continue, for it was constantly a difiicult thing to determine whether in each particular case the notice had been brought to the customer's knowledge. Ac- The Carriers cordingly the Carriers Act {d) was passed, which Act (1 Wm. 4, pj.Qvides (e) that no such carrier shall be liable for the loss of, or injury to, any valuable articles of the nature there specified, — such as gold, silver, watches, clocks, (a) Liver Alkali Co. v. Johnson, L. R. 9 Ex. 338. In this case, however, Brett J., dissented from the opinion of the majority of the Court, viz., Blackburn, Mellor, Archibald, and Grove, JJ. (b) Ante, p. 91. (c) Wyld V. richford, 8 M. & W. 443. (d) 11 Geo. 4, and 1 Wm. 4,c. 68. This Act only applies to carriers by land. As to carriers by sea, see post, ch. vi. p. 146. (c) Sec. 1. AND HEREIN OF BAILMENTS. 93 bills, notes, title deeds, stamps, engravings, silks, &c., contained in any parcel, which shall have been de- livered, either to be carried for hire or to accompany the person of any passenger, where the value of such article shall exceed £10 ; unless at the time of the delivery of such article to be carried its value and nature shall have been declared, and an increased rate of charge paid, or agreed to be paid, which increased charge may be received, provided it is legibly notified in a conspicuous part of the ofiice or warehouse, and ' such notification is to bind without proof of its having come to any customer's knowledge (/). The statute also provides (g) that no public notice or declaration shall have any binding efiect, but nothing in the Act is to be construed to annul or in anywise affect any special contract between the carrier and the cus- tomer Qi), and nothing in the Act is to extend to protect any carrier from any loss arising from the felonious acts of any person in his employ, or to pro- tect any employee from any loss arising from his own personal misconduct or neglect (*'). Although a cus- tomer may declare a package to be of some particular value, in the event of its loss the carrier is not pre- | eluded by that value, but may demand proof of thai actual value, which is all he is to be liable for (k). In cases of goods not of the kind mentioned in the Where this Act Act, or when the value is not above £10, then, in the '^°'l''°* ^pp'^ ' _ '' carrier s com- absence of any special contract, the carrier's common mon law law liability remains by the express provision of the remainl Act, notwithstanding any public notice (Z). Eailway companies frequently escaped the provisions of this Act by putting notices on the receipts given to (/) 11 Geo. 4, and 1 Wm. 4, c. 68,s. 2. ((/) Sec. 4. (A) Sec. 6. (0 Sec. 8. (k) Sec. 9. (/) Sec. 4. construin this Act, 94 OF CONTRACTS AS TO GOODS, persons delivering goods to be carried, and this was held to constitute a special contract between the parties. The The Railway Eailwaj and Canal Traffic Act, 1854 (m), therefore pro- Traffic Act vides (w) that no such notice shall have any effect, but 1854. that nothing therein contained is to prevent companies from making such conditions with respect to the forward- ing and delivering of any goods as shall be adjudged ht/ the court or judge before whom any question relating thereto shall be tried, to be just and reasonable, and no special contract, as to the forwarding and delivering of any goods, shall be binding upon any one unless signed by him or the person delivering the goods to be Difficulties in Carried. Yery great difficulty has arisen on the con- struction of this provision, as to whether the statute only requires that there should be some special contract, and requires nothing as to the conditions to be con- tained in it, and that in addition to a special contract in writing signed reasonable conditions may bind which are not made part of a contract, but only given notice of, or to put the matter more directly in the shape of two questions, 1. When a condition is reason- able, does it require also to be reduced into writing ' and signed ? and 2. When there is a special contract, can the question of its reasonableness be gone into ? However, the weight of authority is certainly to answer both questions in the affirmative, and to treat the words " special contract " and " conditions," used in the Act, as synonymous terms (o), so that there must always be a special contract in writing signed, and rea- sonable conditions contained therein. The same section of the Act also exempts companies from liability for loss beyond, (1) for horses the sum of £50, (2) neat cattle £15, and (3) sheep and pigs £2 per head, unless (m) 17 & 18 Vict. c. 31. (n) Sec. 7. (o) Sim/ms v. Great Western By. Co., 18 C. B. 805 ; McMamis v. Lanca- shire By. Co., 2 H. & N. 693 ; ^orth Stafford. Ily. Go. v. Peek, E. B. & E. 986; and on appeal to the House of Lords, 32 L. J. (Q.B.) 241, in which the judges were divided in their opinion. AND HEREIN OP BAILMENTS. 95 a higlier value is declared, and an increased rate paid, or agreed to be paid, to be notified as under the Car- riers Act. It has also been provided by the Eailway Eegulations Railway Act, 1868 (p), that where a company by through book- ^^f^^'iggj"' ing contracts to carry partly by rail or canal and sea, a condition exempting such company from liability from any loss by danger of seas and navigation, published in a consjpicuous manner in the office where the booking is efi'ected, and printed in a legible manner on the receipt note, shall be perfectly valid. The carrier's duty is to carry all goods delivered to The duty of him of the kind that he usually carries, provided that ^ ^^^""^r- he has room in his carriage, and the person delivering them is ready to pay his proper charge, such carrying to be by his ordinary route, and with reasonable dili- gence, and with regard to his charges for carrying, though he is entitled to be paid beforehand, yet he is not entitled to be paid before he has received the goods for carriage, so that in an action against him for not carrying it is sufficient to allege readiness and wil- lingness to pay the amount of the carriage without prov- ing actual tender of it (q). His liability ceases at the termination of the carrying, and where goods delivered Carriage by a to a railway company to be carried are carried partly on^p^^^Yver™ that and partly on another line, the original company' their own and will generally be liable unless they restrict their liability p^^y'g une. by a condition to that effect (r). As a general rule the The person to person to sue the carrier is the consignee, but if the ^"^g^^^jlg consignee has not acquired any property in the goods, consignee. then the consignor. It is the duty of any person delivering goods of a dangerous character to be carried As to dan- to give notice of their dangerous character (s), and it =" ^ §° • (/)) 31 & 32 Vict. c. 119, s. 14. (g) Pickford V. Grand Junction Ry. Co., 8 M. & W. 372. (r) Zung t. South Eastern By. Co., L. R. 4 Q. B. 539. (s) Farrant v. Barnes, 31 L. J. (C.P.) 137. 9G OF CONTRACTS AS TO GOODS, is provided by statute (f) that where goods of a specially dangerous character are delivered to be warehoused or carried, the true name or description of such goods, with the words " specially dangerous," must be marked on them, and a notice in writing given to the ware- houseman or carrier, or the person so delivering them is subject to imprisonment or fine. As to railway passengers' personal luggage. Railway companies are bound to carry passengers' personal luggage free of extra charge, and their lia- bility as to it is that of common carriers, unless the passenger has taken it peculiarly into his custody (w). As to what will be comprehended under the term " personal " or " passenger " luggage, it may be stated to mean not only wearing apparel, but all things which for convenience a passenger would ordinarily carry with him (x). Liability of carriers of passengers for injury to passengers. "With regard to the subject of the liability of carriers of passengers for injuries done to them, although it cannot be considered under the heading of the present chapter, yet it may be here convenient to inform the student that it is very different to that of common carriers of goods, who, as we have seen, are at common law insurers. The contract of a carrier of passengers is , only to carry safely and securely as far as care and fore- thought on his part can go, and if an accident which he could not have prevented takes place, he is under no liability. There must be some negligence on his part shewn, and there must be no contributory negligence on the part of the passenger ; a "prima facie case of neglect on the carrier's part will, however, be always made out by shewing that the vehicle was under his absolute (0 29 & 30 Vict. c. 69, s. 3. (m) Richards v. London, Brif/hton, and South Coast Rj. Co., 7 C. B. 839 ; Talley v. Great Western Ry. Co., L. R. 6 C. P. 44. (x) See on this [loint I'helps v. London and North Western Ry. Co., 34 L. .1. (C.P.) 259. AND HEREIN OF BAILMENTS. 97 control. This subject is considered hereafter under see hereon, our division " Torts " (y). post, part 2, ^•^ ' ch. 111. An innkeeper may he dej&ned as one who keeps a Definition of house where the traveller is supplied with everything ^'^ innkeeper. that he has occasion for while on his way {z). He stands to a certain extent in a public capacity, and it His duty. is his duty to receive all guests with their goods who come to him, provided they are not drunk or dis- orderly, or suffering from any contagious disorder, and they tender to him a proper and fair amount for his charge ; and if an innkeeper fail in this his duty, he is liable to be indicted, or to have an action for damages brought against him {a). By the common law the lia- His liability i_-tj. i« • 1 • I • 1 • n n at common bility 01 an innkeeper is very extensive, being for all j^^^ losses except those arising by the act of God, the King's enemies, or the fault of the guest, for very much the same reason, probably, as has been before stated with regard to carriers (IS). The leading case on the liability of innkeepers is Calye's Case (c), in which Caiye's Case. J it is laid down that to charge an innkeeper the following circumstances are necessary : — 1. The inn ought to be a common inn, so that in the case of lodging at some private person's house, and a robbery there occurring, the landlord would not neces- sarily be liable, , n h aa,. * / /^ y~ 2. The party ought to be a traveller or passenger. / 1 t Jl tl 3. The goods must be in the inn, and for this reason ^^ Kht/^t^v. ^ the innkeeper is not bound to answer for a horse put " " ' ^^^ ^ rr^ out to pasture. (y) Post, part 2, ch. vl p. 329, et seq. (z) Thompson v. Zaci/, 2 B. & A. 283. (a) Fell V. Knight, 10 L. .1. (E.x.) 277. (6) See ante, p. 91. (c) 1 S. L. C. 122 ; 8 Coke. 32. H 98 OF CONTRACTS AS TO GOODS, 4. There must be a default on the part of the inn- keeper or his servants ; and 5. The loss must be to moveables, and therefore if a guest be beaten at an inn, the innkeeper shall not answer for it. The Inn- The liability of innkeepers being, as above stated, so r26^& ^7^ Vict extensive, it was only natural it should be restricted c. 41). in like manner as has been shewn the liability of carriers was restricted ; and by the Innkeepers Act (d) j it is provided (e) that no innkeeper "shairUe Tiable to ' make good any loss or injury to goods or property brought to his inn (not being a horse or other live animal, or any gear appertaining thereto, or any car- riage), to a greater amount than £30, except (1) where the goods are stolen, lost, or injured through the wil- ful neglect or default of the innkeeper or any person in his employ ; or (2) where the goods are deposited with him expressly for safe custody, in which latter case he may demand that the goods shall be placed in a sealed box or other receptacle. If an innkeeper refuses to receive goods for safe custody, or if by his default the guest is unable to so deposit them, he is not to have the benefit of the Act (/), and he must cause at least one printed copy of sect. 1 to be exhibited in a conspicuous part of the hall or entrance to the inn, and will only be entitled to the benefit of the Act whilst so exhibited (g). Innkeeper may An innkeeper has no right to detain his guest's detain guest's person till his bill is paid, but he has a right of lien on noK person, property brought by the guest to the inn, notwith- *° g^* standing even that the property does not belong to the (d) 26 & 27 Vict. c. 41. (e) Sec. 1. (/) Sec. 2. (g) Sec. .'^. AND HEREIN OF BAILMENTS. 99 guest, or is not ordinary traveller's luggage (h). As Liability of before noticed on the decision in Calyes Case a lodging- ^'J.' fo°rdi'ng-^ house or boarding-house keeper is not liable as an house keeper innkeeper ; he is liable only to a less degree, his duty ,^g innkeeper's. being to use an ordinary amount of care with regard both to his guest and his guest's goods (^'). We have now gone through the different kinds of bailments in Lord Holt's division in Coggs\. Bernard {h), on which it is apparent that another classification (which has been stated in various text books) may be given. It has the advantage of simplicity, and is as Another f„n„,_-, . classification follows:— of bailment. 1. Bailments exclusively for the benefit of the bailor. (This will include those styled dejoosituin and man- datum.) 2. Bailments exclusively for the benefit of the bailee. (This will include those styled commodatum.) 3. Bailments partly for the benefit of the bailor and partly for the benefit of the bailee. (This will include those styled locatio rei, vadium, and locatio operis faciendi.) There being a property in the case of goods bailed Bailor or both in the bailor and bailee, generally speaking either „enerany^' may maintain an action in respect of the same. maintain an action in ~~" ~~~ ~ respect of the (h) Snead v. Watkins, 1 C. B. (N.S.) 267 ; Threlfall v. Barwick, L. R. ^°*"^^ ^'^''^'^' 7 Q. B. 711. (?) Dansey v. Richardson, 3 E. & B. 144. This case also shews the doubt on the point of the e.\tent of the liability of such a person in case of a loss to his guest's goods, arising from his servant's negligence. (Ji) See ante, pp. 85, 86. H 2 100 OF MERCANTILE CONTRACTS, AND CHAPTER V. OF MERCANTILE CONTRACTS, AND HEREIN OF BILLS OF EXCHANGE, PROMISSORY NOTES, AND CHEQUES. Matters ALTHOUGH for Convenience the title given to this chap- th'fchapte? ter is on " Mercantile Contracts," it must not be under- not exclusively stood that the matters treated of in it are exclusively mercanti e. ^^^ -^^^^ ^^^^ morc generally mercantile ; for instance, both agencies and partnerships may of course occur in matters not strictly mercantile. It must be manifest that in many matters of ordi- nary business persons may be unable to do all acts coming within the scope of their transactions, and for Who are this rcasou they employ other persons to act for them, agents. ^^^^^ g^^j^ pcrsons are called agents for them the prin- cipals, and acts done by the agents are considered to be done by the principals by force of the maxim Quifacitper Qui facit i^er alium facit per se. Generally speaking, Jer T/''^'* what a person can do himself he may do by an agent, and, ordinarily speaking, an agent may be authorized by mere word of mouth, but to execute a deed an agent must be authorized by deed, and the agent that is allowed under the 1st and 3rd sections of the Statute of Frauds (I) must be authorized by writing. No person can authorize another to do for him what he cannot do himself, for naturally he cannot pass to another a power which he never had himself; but Persons not though this is SO, pcrsous who cannot do acts for them- ^'virtheiTs? selves are generally speaking competent to act as act as agents. - (/) 29 Car. 2, c. 3. HEREIN OF BILLS OF EXCHANGE, ETC. 101 agents, e.g., infants or married women, for they are exercising not their own, but another person's power («i). The powers of an agent vary according to the autho- rity he is invested with, and from these powers there are said to be three kinds of agencies : — 1 . Universal agency, which is the largest and widest Three kinds kind, being a general authority to do any acts without ^ •'^g'^ncies. reference to their character, and this is not of constant occurrence. 2. General agency, which is the next largest, signify- ing a power to do all acts in some particular trade, business, or employment, e.g., the authority that is vested in a wife to bind her husband for necessaries without any particular sanction on each occasion from him. 3. Special agency, which is the most limited and most usual case of agency, being where a person has simply an authority to do some particular act for the prin- cipal {n). There is a very important difference to be noted Differences between universal and general agencies on the one hand, un^j^grsd and special agencies on the other hand, with regard and general to the power to bind the principal. In the former, orthronT even although the act exceeds the agent's authority in hand, and the particular instance, yet if it comes ivitliin the scojje on the other. of his ordinary authority the principal is liable (o) ; thus, for instance, supposing a servant to have a general authority to order goods for his master, and the master one day withdraws this authority, yet if the servant (wj) See Story on Agency, p. G ; Co. Litt. 52 a. (n) Ibid., p. 23, et seq. (o) Sinethurst v. Taylor, 12 M. & W. 545. 102 OF MERCANTILE CONTRACTS, AND orders goods as theretofore, the tradesman not knowing , of it, the master will he liable, because the act comes I within the scope of the agent's ordinary authority. In ■ the case of special agency this will not be so ; it is the duty of the party contracting with such an agent to inquire and see as to the extent of his authority, and if he exceeds it the principal cannot be liable (p). Omnis But although an act may be done without any autho- rauha'ntio^ I'ity from the principal, and therefore not bind him, yet et mandato if at the time of doing the act the agent lyrofessed that he ^'aratur^^^' "^^^ acting for the principal (q) it may be subsequently ratified by the principal, and become his act just as much as if he had authorized it beforehand, for the maxim is, omnis ratihahitio retrotrahitur et mandato 'priori sequiparatur (r). As to the effect An important point on the law of principal and of giving credit agent is as to the effect of a person contracting with to an agent. ° ... t,,,i i !> an agent giving credit to the agent ; oi course, gene- rally speaking, an agent incurs no personal liability, and the person contracting with him will charge his principal, but it may be that it is not known that he is an agent or who his principal is, or, though both the above facts are known, the agent not contracting as agent it may be preferred to charge him to his princi- pal. The law upon this point is that if the fact of the ^ person being an agent is not known, or though the ;jl^^ ^TtA-J^A ^Jk*t,U'- agency is known the name of the principal is not, 'i^JL^i^liyud^ though credit is first given to the agent, the principal ^iIIuL^LU.U'^/*^* '^^ on being discovered maybe sued (s) ; but that if the ^"^^liirJ^ t*" ^'^' principal is known, and credit has yet been given to iv| u >^w u tM u Mijj-f ^jjg agent, the principal cannot afterwards be charged, uJ^M \ut^s\l)-^-ii^' for the person has made his election (t). The leading (p) East India Co. v. I/ensley, 1 Esp. ill. (7) Per Parker, J., Vere v. Ashbi/, 10 B. & C. 288. (r) Maclean v. Dunn, 4 Bing. 722. (s) Paterson v. Gandcsequi, 2 S. L. C. 347; 15 East, 62; Addison v. Gande.sequi, 2 S. L. C. 356 ; 4 Taunt. 574. (<) Thomson v. Davenport, 2 S. L. C. 364 ; 9 B. & C. 78. HEREIN OF BILLS OF EXCHANGE, ETC. 103 cases referred to below of Paterson v. Gandesequi, Paterson v. Addison v. Gandesequi, and Thomson v. Davenport, are (?«»*-5^'?w'; , ^' Addison v. usually quoted together upon this subject. Gandesequi; Thomson v. Davenport. The cases in which, contrary to the general rule, the cases in which agent incurs personal liability, may be stated to be as ^g*^°*' p^^" „°, ^ J5 J sonally liable. loUows : — 1. Where the agent conceals his principal. Here we have just seen that though the agent is liable, it is in the option of the other contracting party to sue either principal or agent. 2. Where he acts without authority, or after his authority has determined. But if he could not have known of the determination of his authority this would not be so ; thus, an action was brought for necessaries supplied to a woman after her husband's death whilst on a foreign voyage, but before she knew of his decease. By his death her authority to bind him for necessaries was of course revoked, and his estate therefore could not be liable for them, and it was decided that she was not liable either on the before-stated ground (w). 3. Where, though having authority, he exceeds that authority, or fraudulently misrepresents its extent. 4. Where he specially pledges his own credit. 5. Where though contracting as agent, he uses words to bind himself, e. g., if he covenants personally for himself and his heirs {x). It was formerly a rule that where a British agent (m) Smont V. Ilberry, 10 M. & W. 1. {x) See hereon, Thomas v. Edwards, 2 M. & W. 216, and cases there quoted. 104 OF MERCANTILE CONTRACTS, AND contracted for a foreign principal, the British agent might be sued, because it was said there was no respon- sible employer ; but this is not now so, the rule being f that in all cases of this kind it is entirely a question of intention whether under the particular circumstances the credit was intended to be given to the agent or the ■ principal (tj). The different An agent's authority may be determined in any of TnTge^t?"' the following ways, i.e.:- authority may e eimine . I j^j the principal's revocation of it, and death will operate as a revocation. If by the act of the principal the agency is revoked, in the case of a special agency nothing further done by the agent will bind the prin- Icipal, but in the case of a general or universal agency, the revocation will not bind third persons until made known to them (2) ; for as we have seen in these agencies, the principal may be bound if the act comes within the scope of the agent's ordinary authority (a). 2. By the agent's renunciation with the principal's consent. 3. By the principal's bankruptcy. 4. By the object of the agency being accomplished. 5. By the effluxion of time ; and 6. By the marriage of a /ewe sole agent (h). An agent's Unlcss a contrary intention appears, the authority authority includes all incidental acts. (V) Green v. Kopke, 25 L. J. (C.P.) 297. (z) Monk V. Clai/ton, Moll. 270 ; cited in Nickson v. Brohan, 10 Mod. 110, (a) Ante, p. 101. (6) See hereon, vStory on Agency, \>. 481. HEREIN OF BILLS OF EXCHANGE, ETC. 105 given to an agent must be taken to include all inci- dental acts necessary for accomplishing the principal object ; for instance, a person sending another to a shop to buy goods without giving him money, gives to him the necessary incidental power of pledging his credit (c). The proper person to sue on a contract is generally The principa], speaking, the principal and not the agent, unless he ^I'^l^l^^ ^°'^'^^' has some special property or interest in the subject- generally sue matter of the contract by way of commission or other- °" contracts. wise, e.g., a carrier or an auctioneer (d). If an agent His liability is remunerated, he is bound to use ordinary diligence ; '^^'^ ^^^^'^' if unremunerated, then, by analogy to the case of a voluntary bailee (e), he is only liable for gross negli- gence, unless he is possessed of any special skill or know- ledge, when an omission to use such skill, or negligence, will be imputable to him for gross negligence (/) ; his duty is always to act fairly and honestly, and keep proper accounts and vouchers, and he may lose his right to any commission he might otherwise be entitled to by not doing so (g). Aj!lel credere agent is one who agrees with his prin- Del o-ederc *^ tduiit f^ cipal, in consideration of some additional compensation, ^f'tt'^M^^''^'^ to guarantee to him the payment of debts to become due from buyers. Although the undertaking of a del credere agent is certainly a collateral promise to answer for i the debt of others, yet it has been decided that his engagement need not be in writing (A) as is necessary, I as we have seen, in the case of guarantees {%). (c) Story on Agency, p. 77. (d) liobinson v. Sutter, 4 E. & B. 954. (e) As to which see ante, pp. 86, 87. If) See Coggs v. Bernard, 1 S. L. C. 188 ; Lord Raymond, 909 ; Wilson . Brett, 11 M. & W. 113. (^) See hereon, Stainton v. The Carron Co., 24 Beav. 353. (A) Coutourier v. Hastie, 8 Ex. 40. (i) Ante, p. 40. lOG OF MERCANTILE CONTRACTS, AND Difference between factors and brokers. Factor's powers to bind his principal by pledge at common law, and under the Factors Acts. Factors aud brokers are peculiarly mercantile agents, being employed constantly to effect sales ; the differ- ence between them being that the broker has not pos- I session of the goods he is selling for his principal, but the factor has (A-). At common law, if goods were placed in a factor's hands for sale, he having only a power to sell and not to pledge, he could not give any title by way of pledge, and this being considered by the mercantile community as an undue restriction of the operations of commerce, certain Acts (I), usually known as the " Factors Acts," have been passed, the chief effect whereoTTias Been sliortly stated as follows : — " 1st. "Where goods, or documents for the delivery of goods, are pledged as a security for present or future advances, with the knowledge that they are not the property of the factor, but without notice that he is acting without authority, in such case the pledgee acquires an absolute lien. " 2nd. Where goods are pledged by a factor without notice to the pledgee that they are the property of another, as a security for a pre-existing debt, in that case the pledgee acquires the same right as the factor had (?n). " 3rd. Where a contract to pledge is made in con- sideration of the delivery of other goods or documents of title, upon which the person delivering them up had a lien for a previous advance (which is deemed to be a contract for a present advance), in that case the pledgee acquires an absolute lien to the extent of the value of the goods given up " (n). These statutes do not apply (k) Baring v. Corrie, 2 B. & Aid. 137. (0 6 & 7 Geo. 4, c. 94 ; 5 & 6 Vict. c. 39. (m) That would be to the extent of the factor's lien on the goods. (n) Chittj-'s Statutes, vol. ii. title " Factors." HEREIN OF BILLS OF EXCHANGE, ETC. 107 to non-mercantile transactions, nor to cases of persons to whose employment a power of sale is not ordinarily incident. The case of George v. Clagett (o) is an important George v. decision on the' principle of set-off with regard to ^%«"- factors. It decides that if goods are bought of a factor, the buyer, not knowing that he is but a factor, I and the principal sues, the buyer may set off against; him any claim he might have set off against the factor! had the action been brought by him; but if he knewj he was a factor at the time, then he cannot. And it has recently been decided that it makes no difference that the buyer had the means of knowing that the person with whom he contracted was only a factor, and that to bring a case within the principle of George v. Clagett, and enable a defendant to set up against the principal a set-off that he would have been entitled to as against the factor, all that is necessary is that actually j he did not know, at the time of the contracting and of the accrual of the set-off, that the person was a factor {'p). It has also been decided, somewhat extending the case of George v. Clagett, but yet strictly within its principle, that though the buyer knew at the time of buying of the person being a factor, yet he is entitled to this benefit of set-off if he honestly believed that the factor was entitled to sell and was selling to repay himself advances made for his principal {q). A partnership may be either actual or nominal ; Partnership. actual where two or more persons agree to combine Actual money, labour, or skill in a common undertaking, ^^^ '^"^ (o) 2 S. L. C. 113; 7 T. R. 359. (/?) Borries v. Imperial Ottoman Bank, L. R. 9 C. P. 38. {q) Warner v. McKay, 1 M. & W. 595. See further on, set-off generally, post, pp. 208-211. 108 OF MERCANTILE CONTEACTS, AND Nominal sharing profit and loss ; and nominal where a person partner. allo^YS his nauiG to bc held out to the world as a part- ner without having any real interest in the concern (r). An actual partnership, again, may he divided into the ordinary partnership where a person has an interest Dormant and his name appears ; and a dormant partnership, partnir. "syhere a person, though having an interest, does not appear to the world as a partner. To deal with the simplest matter first, a nominal partner is not always liable ; he is only liable where he has held himself out ♦ to the person seeking to charge him, and induced him to believe him to be a partner (s). " ft-A>t A I^ '^^ ^^^® ^^^^ cited below, Parke, J., in consider- ' , ^'. ^ ^ ing whether or not a person was liable as a nominal partner, said: "If it could be proved that the de- ^^ '■; fendant had held himself out to be a partner, not ' to ^ W*^ */ ^ the world,' for that is a loose expression, but to the plaintiff himself, or under such circumstances of pub- licity as to satisfy a jury that the plaintiff knew of it and believed him to be a partner, he would be liable to the plaintiff in all transactions in which he engaged, and gave credit to the defendant upon the faith of his being a partner. The defendant would be bound by an indirect representation to the plaintiff arising from his conduct, as much as if he had stated to him directly and in express terms that he was a partner, and the plaintiff had acted upon that statement." If a person had express notice that the person he is seeking to charge was only nominally a partner, then it seems {t) (though this point is not absolutely beyond doubt (w) ) that he cannot be charged. (r) Watu/h v. Carv er, 2 Hen. Blackstone, 235 ; 1 S. L. C. 922, and notes, — (s) Dklicnson v. Valpji, 10 B. & C. 140. (<) Alderson v. Popes, 1 Camp. 404, n. (m) See Y). 2. " No contract for the remuneration of a servant or agent of any person engaged in any trade or under- taking by a share of the profits of such trade or under- taking, shall of itself render such servant or agent responsible as a partner therein, nor give him the rights of a partner "(c). 86 (a) Chitty on Contracts, 215, and see the ca«es there cited in support of this statement. (t) Sec. 1. (c) Sec. 2. HEREIN OF BILLS OF EXCHANGE, ETC. Ill 3. " No person being the widow or child of the deceased partner of a trader, and receiving by way of annuity a portion of the profits made by such trader in his business, shall, by reason only of such receipt, be deemed to be a partner of, or to be subject to any liabilities incurred by, such trader " (d). 4. " No person receiving by way of annuity or other- wise a portion of the profits of any business in con- sideration of the sale by him of the goodwill of such business, shall, by reason only of such receipt, be deemed to be a partner of, or to be subject to the liabilities of, the person carrying on such business " (e). In the case, however, of any such trader becoming bankrupt, or compounding with his creditors, or dying in insolvent circumstances, the lender of any such loan, \ or the vendor of any such goodwill, is not to be entitled to recover any portion of his principal or profits until the claim of other creditors for value have been satisfied (/). The efi'ect of this statute is simply that in the The eflect of four cases given the fact of a participation of the *'^'* statute. profits is not to be any evidence of the existence of a partnership, as it would have been at common law {g). Considering the decision in the case of Cox The case of v. Hickman, there appears to have been but slight '^'^^ ^' ^"^'^' ' J- ■!■ _ " _ mem goes occasion for the passing of this Act, as under the deci- beyond the sion in that case, as stated (A), it was decided already ''^^^^^^ **" that the question of partnership or no partnership extensive must always depend on the intention of the parties, and in neither of the four cases given in the statute would there ordinarily be any intention to create a (6v«J partner in it The question is, did the act come within the scope of the ordinary business? Particular ^ An important point on the law of partners is as to the liability_ojLmembers_of._a_fijmi for acts done by others of them. Partners as to each other stand in the posi- tion of general agents, and as we have seen (l) that a general agent is able to bind his principal, even though without authority, if the act comes within the scope of his ordinary authority, so with partners, as the great criterion of a partnership is that each member stands in the relation of a principal to the other members (m), so the question as to liability on a contract made by one partner is not, was it done by the other's direct authority, but did it come within the scope of the ordinary partnership transactions ? and if so, then all the partners are liable (n). So, for instance, though a bill of exchange given by one member of a non-mercan- tile firm (e.^., solicitors) would not bind the others as not being within the scope of their business (o), yet if given by a member of a trading partnership it would bind the others (j)). One partner cannot bind his firm by a submission to arbitration (q), nor by borrowing money (r), nor by giving a guarantee (s), nor by exe- (0 See 1 S. L. C. 950. (k) Chitty on Contracts, 216. (0 Ante, p. 101. (to) See Coo; v. Hickman, cited ante, p. 109. («) Sandiland v. Marsh, 2 B. & Aid. 672. (o) Harman v. Johnson, 2 El. & Bl. 61. Ip) Kirk V. Blurton, 9 M. & W. 284. {ff) Stead V. Salt, .3 Bing. 101. (r) Fisher v. Taylor, 2 Hare, 218. (s) Haskham v. Young, L. R. 5 Q. B. 833. HEREIN OF BILLS OF EXCHANGE, ETC. 113 cuting a deed unless autliorized by them by deed (except, indeed, as to releases) ; but it has been decided . that if a partner executes a deed in the presence of and; by the express consent of his co-partners in a matter in which they are commonly interested, it binds all (^)j No new member can be introduced into a partnership introduction firm without the consent of all the members : a person is °^ \^^'''' , ,.,, -I • 1 i> 1 partner, and not liable on contracts entered into before he became a his position. member of a firm, and his liability ceases on his leaving the firm, provided he gives a general notice in the; Gazette, and also a particular notice to persons who' have been in the habit of dealing with the firm (ii), and though, of course, his liability continues in respect of debts incurred whilst he was a member of the firm, yet if any creditors expressly or impliedly accept the credit of the new instead of the former firm, this exonerates him from liability. As to a dormant partner, it will always be sufiicient for him to give notice only to the persons who knew of his connection with the firm (x). A partnership is liable to be dissolved in any of the How a partner- following ways (y) :— t^ohrll ^'^ 1. By effluxion of time ; 2. By mutual consent ; 3. If a partnership at will by a notice, unless such dissolution would be in ill faith, or would work irre- parable injury ; 4. By a general assignment by one or more partners, (0 Ball V. Dunstenille, 4 T. R. 313. (m) Kirwan v. Kirivan, 2 C. & M. 617. (x) Evans v. Drummond, 4 Esp. 89. (y) SeeChittyon Contracts, 236-238; Snell'.s Principles of Kqiiity, 428. I 11-1 OF MERCANTILE CONTRACTS, AND or by execution on the partnership effects by a creditor of one of the partners, or by an assignment of his share in the business, or by his bankruptcy, or outlawry, or attainder for treason or felony ; 5. By death of a partner ; 6. By marriage of a female partner ; and Grounds 7. By decree of the Chancery Division of the High Chancer'^ will ^°^^* ^^ Justice, which wiU be granted on any of decree a' the following grounds : — dissolution. 1. "Where the partnership originated in any fraud, misrepresentation, or oppression. 2. Where one of the partners has been guilty of some gross misconduct in the partnership matters, acting in breach of the trust and confidence between the partners ; or 3. "Where there have been continual breaches of the partnership contract (z). All partners All partners must be competent to contract, so that must generally neither an infant nor a married woman (except by be competent . -i-ii-ii to contract. Special custom, or m cases m which she is to be con- sidered as a feme sole (a)) can be a partner, though an alien may now be, unless the partnership embraces the \ holding of a British ship or ships, or any share ' therein (&). An executor of a deceased partner may be let in as a partner, but he becomes liable personally as any other partner, though he is simply acting in trust, and not himself taking any benefit (c). On the (z) Snell's Principles of Equity, 4^0. (a) See post, ch. vii. p. 176. (I)) See 33 & 84 Vict. c. 14, s. 14; post, ch. vii. pp. 186-188. (c) Wujhlr/utn v. Tou-nroc, 1 M. & S. 412. HEREIN OF BILLS OF EXCHANGE, ETC. 115 death of a partner his interest in the partnership stock goes to his executors, and the outstanding debts, &c., go to the surviving partners, but they are trustees for the representatives of the deceased partner to the | extent of his shares (d). In an action against partners it is not now necessary Partners may M' ^ to sue all the members in their individual names, but theirlvrtne • '^**^ they may be sued in the name of the firm (e), and, on ship name kUv -uL^j^. judgment against partners in the name of the firm, ju'ncature"^ ^ ^^ hu execution may issue in any of the following ways : — Act, i875. >^ (1.) " Against any property of the partner as such; (2.) " Against any person who has admitted on the pleadings that he is, or has been adjudged to be a partner ; (3.) " Against any person who has been served as a partner with the writ of summons, and has failed to appear. "If the party who has obtained judgment claims to be entitled to issue execution against any other j person as being a member of the firm, he may apply to the court or a judge for leave so to do ; and the court or judge may give such leave if the liability be not dis- puted, or, if such liability be disputed, may order that the liability of such person be tried and determined in any manner in which any issue or question in an action may be tried and determined " (/). At . common law one partner could not sue another Remedies except in about three cases, i.e., (1) where an account ^'^^^''^^'^ •I J 5 V / _ partners. had been gone through between the parties, and a (d) This pertains more to the Principles of Equity, and the student is referred to Mr. Snell's work thereon, 426-435. (e) Judicature Act, 1875, Order IX. r. 6. (/) Judicature Act, 1875, Order XLII. r. 8. I 2 116 OF MERCANTILE CONTRACTS, AND balance struck and agreed on ; (2) where money had been received by one partner for the private use of the other, and wrongfully carried to the partnership account ; and (3) where one partner had improperly used the partnership name in making a promissory note for his own private debt, and it had been paid by the other {(/). The proper remedy between partners was formerly in the Court of Chancery for a dissolution and account (h), and it is clear that now, where formerly a bill in Chancery would have been necessary, the plaintiff, by his writ in the High Court of Justice, must claim an account, and the proper division for such accounts is the Chancery Division, such matters being specially assigned to that division (^"), so that for all practical purposes this matter stands on the same footing as before. Choses in action. Choses in ' action where not assignable at law. Exceptions to that rule. Bills of exchange, promissory notes, and cheques being all choses in action, it will be well first to devote a few lines to the explanation of that term. A chose I i n action may be defined as signifying some outstanding 1 thing, and the right of action in respect of that thing (k), \ as, for instance, where any debt is owing to a person ; ' and originally choses in action could not be assigned or transferred, the policy of our laws being to prevent the springing up of litigation (I), and the only way of effecting such an object was by giving to any assignee a power of attorney to sue in the assignor's name. But such assignments were allowed in equity, and to the original common law rule there have grown up exceptions as follows : — 1. Contracts made with the sovereign (m) ; (r/) Chitty on Contracts, 225. (A) See Snell's l'rinci])lcs of Equity, 426. (»■) Judicature Act, 1873, sec. 34. (/.:) Brown's Law Diet. Gl, title "Chose." (/) See Co. Litt. 214, a. (m) See Broom's Corns. 431. HEREIN OF BILLS OF EXCHANGE, ETC. 117 2. Bills of exchange, promissory notes, and cheques by force of the custom of merchants ; 3. Bills of lading by force of 18 & 19 Yict. c. Ill ; 4. Bail bonds (n) ; 5. Life policies by force of 30 & 31 Vict. c. 144, provided notice in writing is given to the insurance office ; 6. Marine policies by force of 31 & 32 Vict. c. 86 ; 7. Assignments of choses in action of a bankrupt in pursuance of the Bankruptcy Act, 1869 (o) ; and 8. By the Judicature Act, 1873 (?j), it is now pro- Provision of vided that "any absolute assignment by writing under ^^'^"^j^gl^g^ the hand of the assignor (not purporting to be by way on the sub- of charge only) of any debt or other legal chose in ^^^^' action, of which express notice in writing shall have, been given to the debtor, trustee, or other person, from! whom the assignor would have been entitled to receive or 1 claim such debt or cJiose 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 concurrence of the assignor : Provided always, that if the debtor, trustee, or other person liable in respect of such debt or chose in action shall have had notice that such assignment is disputed by the assignor or any one (n) See stat. of 4 & 5 Anne, c. 16, s. 20. (o) 32 & 33 Vict. c. 71, s. 111. Ip) 36 & 37 Vict. c. 66, s. 25 (6). 118 OF MERCANTILE CONTRACTS, AND claiming under him, or of any other opposing or con- flicting claims to such debt or chose in action, he shall be entitled, if he thinks fit, to call upon the several persons making claims thereto to interplead concerning the same, or he may, if he thinks fit, pay the same into the High Court of Justice under and in conformity with the provisions of the Acts for the relief of trustees." The efi'ect of this provision is now to make it the general rule that clioses in action are assignable so as to enable the assignee to sue in his own name, but the student will notice that the enactment does not extend to assignments by way of charge, but only to absolute assignments. The orij^in of the system of exchange. Explanation of advantages derived from the use of bills of ex- change and jiromissory notes. Bills of exchange, promissory notes, and cheques, owe their origin to the law merchant. The system of exchange did not originate in England, but was an- ciently made use of at Athens, some provinces of France, and some few other places, and brought to perfection in Italy, from whence it appears to have been intro- duced to our country. A bill of exchange may be defined as a written order oTTequest by one person to another to pay a certain sum of money to him or bearer or order ; a promissory note as a written promise by one person to another to pay a certain sum of money to him or bearer or order {q) ; and a cheque as a written order by a customer to his banker to pay a certain sum to a person therein specified or bearer or order. For those not conversant with such matters to properly understand the subject it seems necessary to first ex- plain the advantages to be derived by the means of bills of exchange, and this is best shewn by an example. Suppose B. to owe money to A., but it has been ar- ranged that payment shall not be made for say three (7) A bank note is in efi'ect a iiromissory note payable to bearer on demand. See Byles on Bills, p. f». HEREIN OF BILLS OP EXCHANGE, ETC. 119 months; in the ordinary course of things A. wonld simply have to wait that time for his money, which he would be deprived of using for that period. But A. may draw a bill of exchange, directed to B., requesting him to pay to him or his order the amount due three months after date, and A. would here be called the drawer, and also the payee, as it is payable to him, and B. the drawee. At first this would not have full effect, but B., the drawee, then signifies his acquiescence in it by — as it is called — accepting it, that is, writing the word " Accepted " across it and signing his name, and it is then handed back to the drawer and payee, A. The ad- vantage to A. is that he can then transfer it over to any one to whom he in his turn may owe money, who will at the proper time get payment from the acceptor, and thus the original drawer quickly turns his money over. If the bill is payable to him or bearer, the transfer is efi'ected by simply handing it over ; if to him or order, by his indorsing his name on the back, when he, in addition to being the drawer, becomes an indorser, and the person to whom he indorses it an indorsee, who in his turn may indorse it over to some one else, and so it may pass on to any extent. When the time mentioned in the bill is up, and the bill therefore becomes due, the then holder of it presents it to the person who founded it, viz., the acceptor ; and if he pays it, the bill has operated and been used as money, and served as such between all the other parties, though actually no money has passed between them. The bill might even have a still more extended operation, for it need not necessarily be made payable to the drawer. Say B. in India owes money to A. here, who in his turn owes money to C. in India : A. can draw a bill on B. payable to C. and send it to India ; and it can be accepted and placed in C.'s hands, who, when it is due, obtains payment from B., and A.'s debt to him is thus liquidated without the actual transmission of money from England to India. A promissory note is not quite so practically useful as a bill of exchange, but 120 OF MERCANTILE CONTRACTS, AND nearly so ; and remarks as to the one will generally apply to the other. To take an example of one : if B. owes money to A. he can sign a promissory note, of which he will be called the maker, to pay at a certain time to A., who will be called the payee, or his order, or bearer, and A. can then transfer it over to any one to whom he owes money, becoming if he indorses it an indorser, and the person to whom he indorses it an indorsee, and, when due, it will be presented to the maker and payment obtained. Of course in both the bill of exchange and the promissory note the ultimate holder's claim is not only against the founder of the bill or note, but if he acts properly (as is hereafter detailed) For form he has a claim against every prior party. A form of a of bill of jj- jj q£ exchange and a form of a promissory note are exchange and . . ° ■,■ i , ,i • i i ii of promissory given in the Appendix A. to this work, and on them notes see ^^ should be remarked that there is no virtue in the Appendix. • i » j words at the end of each, " for value received, and that the instruments would be just as valid if those words were omitted. If the words " or order " or " or bearer " are not inserted the instrument will not be negotiable as a bill of exchange or promissory note (r), though now, in consequence of the provision I of the Judicature Act, 1873, before mentioned, the Hills and notes debt might be assigned as therein provided (s). Bills must be in ^ exchangc and promissory notes are by custom writing, and o ^ ^ . . , , so must an required to be in writing, and it is also expressly pro- r'^rbiir*^ vided by statute (t) that the acceptance of an inland bill must be in writing on such bill, and this is now equally necessary in the case of a foreign bill (u). Two classes From the foregoing remarks the student will have of persons observed — as indeed has been expressly pointed out — and notes. * that there are two classes of persons liable on bills of exchange and promissory notes, viz., (1) Those pri- (r) Byles on Bills, 84. (.s) See ante, p. 117. {t) 1 & 2 Geo. 4, c. 78, s. 2. lu) 19 K- 20 Vict. c. 97, s. 6. HEREIN OF BILLS OF EXCHANGE, ETC. 121 marily liable on a bill, who are the acceptor or acceptors, and on a note the maker or makers ; and (2) Those not so primarily liable who are the indorser or indorsers, and therefore the positions of the parties are similar to that of creditor, principal debtor, and surety, the holder for the time being being the creditor, the accejitor of a bill or maker of a note the principal , debtor, and all other parties the sureties. The engagement of the acceptor is to pay the bill The eugnge- according to its tenor (sc), and as a general rule only he '"'^'^^•'^ ^'^^, ° \ ■' . . " "^ acceptoi- ol can accept a bill to whom it is addressed, but to this a bill is to rule there is an exception, for suppose the person to [^^[tsTeuor"^ whom the bill is directed cannot be found, or through infancy or any other cause cannot accept, some other person may accept for him to prevent his being sued, Acceptnnce and such an acceptance is called an acceptance for ^^'^ i>onour, honour (y), and such an acceptor an acceptor for protest! honour (z). An accej^tance for honour is not of con- stant occurrence. The person to whom the bill is directed, and who becomes the acceptor, may be either an ordinary acceptor who owes money to the drawer, or an accommodation acceptor, i.e., one who accepts with- out consideration for the convenience of the drawer, and with a view to his raising money upon it, or other- wise using it (a). An accommodation accejitor is Liability of an equally liable as any ordinary^acceptor to pay the bill ayable at the strict end of the time named in them, but in addi- tion to that time there are allowed, by the custom of merchants, three further days which are called " days of grace," so that a bill dated the 1st of January, and payable three months after date, is not actually due and payable until the 4th of April (o). These " days of grace" do not of course exist in bills or notes payable on demand, and they are not now allowed on bills or notes payable at sight or on jiresentation, it being provided that such instruments shall for all purposes whatsoever be deemed to be bills or notes payable on demand (^j). Where no time named bill or note deemed pay- able on demand. The Statute of Limitations runs from the date of instru- ments payable on demand. All bills or notes in which no time for payment is specified are deemed payable on demand (q), and with regard to instruments so payable it should be noted that it is not necessary before bringing an action there- on that any demand should actually be made, and the Statute of Limitations will run from the date of making the instrument and not from the time of demand (r) ; but if an instrument is made payable a certain time after demand, e. g., one month after demand, then the statute does not commence to run until a demand has (/rt) F.yles on Bills, 57. (w) Ibid. 8 ; ante, p. 26. I'j) Ibid. 208. ( p) :)4 & 35 Vict. c. 74, s. 2. (7) Byles on Bills, 212. (/•) Ibid. 345. HEREIN OF BILLS OF EXCHANGE, ETC, 125 been made and the period named after such demand has j expired (s.) As to bills or notes payable at sight or on presenta- Qumre, how- tion, or a certain time after sight or presentation, the ^Jj^^^ i^l^ns rule has been that as no right of action accrues until in bills or after presentment, the statute does not commence to °° ^^ m-esfn- ' run until presentment or the lapse of the time spe- tation. cified after presentment {t). Whether this is so now with regard to bills or notes simply payable at sight or on presentation, may however now be considered very doubtful, the 34 & 35 Vict, c, 74, s. 2, providing, as has been already stated, that such instruments shall " for all purposes whatsoever " be deemed as payable on demand ; and as in instruments payable on demand, the statute runs from the date, it would seem, on a strict construction of this statute, that it has the effect of making the rule the same as to instruments payable at sight or on presentation. ^ (-W. »'-• jf a, bill or note contains no date, parol evidence is Parol evidence "^'1 1 {.admissible to supply the time of its having been made, g' "^'ly'a date. Foreign bills are often drawn j)ayable at a " usance " Usance. or two or more " usances," which signifies the period or periods customary for payment between the two coun- tries where the bills are drawn and payable respec- tively (w). " A person who accepts a bill of exchange or makes As to present- a promissory note payable on a given day is liable to ™"lceTf* pay it when that day arrives, though no demand is dishonour. made. He must be aware of the contract he has entered into, and he has no right to say that he is taken by surprise, for he is bound to provide for pay- ment on the day when the bill becomes due " {x). Of (s) Thorpe v. Coomhe, R. & M. 388. (0 Ibid. 344, 345. 00 Byles on Bills, 206. (.r) Per Channell, B., Malthy v. Murrell, 5 H. & N. 823. 126 OF MEKCANTILE CONTRACTS, AND course this does not apply to an instrument payable at or after sight or on presentation, for in such cases it is not payable unless and until it is so presented ; again, it will not apply in the case of a qualified accept- ance, and on this point it is very necessary to clearly understand what is a qualified acceptance, and it is where the bill is made payable at a particular place, What is meantland not otherwise or elsewhere. For it is specially pro- by a qualified \^,-;|g^| ^ statute 0/) that if a bill shall be accepted acceptance. •' ^"^ ■' '■ 1 & 2 Geo. 4 payable at a banker's or some other place, such accept- 5J?8. ance shall be but a general acceptance ; but if the acceptance expresses that it is payable at a place, and " not otherwise or elsewhere," then it is a qualified ' acceptance, and the acceptor shall not be liable to pay unless payment shall have been first demanded at the particular place named (2). The presentment required in this case to charge the acceptor need not be actually on the exact day that the bill falls due, so long as the This statute presentment is made (a). But the foregoing statute does not apply ^^^g j^q|. apply to promissory notes ; and if, therefore, to promissory . ^ J- "^ / i • j.i i i /> -j. j. v notes. a promissory note is expressed, m the body ot it, to be payable at a certain place, presentment at that place is necessary to charge the maker (b). The law on this point, therefore, is, that to charge an acceptor present- ment is not necessary unless accepted payable onh^it a particular place ; but to charge the maker of a note if it is expressed to be payable at a place, though not only at that place, yet presentment is necessary ; but in both cases it is not essential that presentment should be made on the exact day. To charge But the rule expressed on the previous page in the drawer or words of Mr. Barou Channell applies only to the parties must'aiways"^ primarily liable, i.e., the acceptor of a bill and the be i.resentment ^^akcr of a uotc : as to the parties not so primarily liable, and notice of dishonour. (y) 1 & 2 Geo. 4, c. 78. (z) Sec. 1. (a) See Modes v. Gent, 5 B. & Aid. 244. (h) Byles on Bills, 216. HEEEIN OF BILLS OF EXCHANGE, ETC. 127 i.e., the drawer or indorsers of a bill or the indorsers of a note, it has no application, for they are only liable on the default of the party primarily liable, and the holder must have performed conditions by the custom of merchants incumbent on him, and the rule is, that it is necessary for him to present the instrument to the person primarily liable on the very day it becomes due, and if dishonoured to give notice of its dishonour, unless the notice of dishonour is waived (c). As to the presentment, even when necessary to charge the ac- ceptor or maker, we have seen that it need not be on the actual day of the instrument becoming due {d), but to charge the other parties the presentment must be on the exact day (e). When, however, a bill or note instrument becomes due on a Sunday, Christmas Day, Good Friday, o^ a Sunday, public fast or thanksgiving day, the instrument is pre- ^'^■\ "i" ^ ^'^^^^^ sentable and payable on the day preceding such day (/) ; but if it becomes due on a Bank holiday, it is present- able and payable on the day following such day {g). As to notice of dishonour, the law requires it to be Reasounbie given for this reason, " because it is presumed that the jishoaf|*m. jg bill is drawn on account of the drawee's having effects required, of the drawer in his hands ; and if the latter has notice that the bill is not . . . paid, he may withdraw them immediately " (li). Upon this point of notice of dis- honour three questions require attention : — First. What will be sufficient notice of dishonour ? what will be And the answer to this question is, that thoupjh no suiHcieut noticG of formal notice is required, yet mere knowledge of the dishonour. probability that a bill or note will be dishonoured, or even actual knowledge of the dishonour, will not be (c) See hereon, Byles on Bills, 203-219 ; and also generally hereon, judgment in Jones v. Broadhurst, 9 C. B. 173. id) Ante, p. 126. (c) Byles on Bills, 205-217. (/) Ibid. 208. Ig) 34 Vict. c. 17, s. 1. (h) Per BuUer, J., Bickerdike v. Bvllnian, 2 S. L. C. 57. 128 OF MERCANTILE CONTRACTS, AND sufficient, but tlicre must bo some intimation given by I the holder to any intermediate person he seeks to charge that he does not intend to give credit to the acceptor (i). To whom Secondly. To whom must the notice of dishonour be notice of given? The answer to which question is that notice dishonour o i i i i • j. i j. must be given, must be given to all persons the holder intends to charge ; but if he gives notice to the one preceding him, who in his turn gives notice to the one preceding him, and so on throughout, these notices will all enure to the benefit of the holder, each person having his day to give notice ; but if this link of notices is once broken, then the liability of the other persons to whom notice has not been given is destroyed. The proper course is, therefore, for the holder to always give notice to every prior party he intends to charge (k). Within what Thirdly. Within what time is notice of dishonour to time notice of j^g given ? The answer to which question is that the dishonour . , , , , ■, ,■ • ■ x. must be given, holder and every one to whom notice is given must give his notice within such a time that the person or persons he seeks to charge, if living or carrying on business at or near the same place, may receive it during the day after the day of dishonour, or the day after the person giving the notice himself received notice ,of dishonour ; if not so living at or near the same place, •then it must be sent by post during such day, or if no ipost, then on the next jDost day; and in the case of a foreign bill or note, it must be sent by the next ordi- nary conveyance. If the instrument is with a banker, then there is an additional day for the notice, the banker having first one day to give his customer, the holder, notice; and if the notice is received on a Sunday, or other day of public rest, it is deemed as received on the day following (I). (i) Broom's Corns. 441, 442. (/;) Byles on Bills, 290. (/) Ibid. 284-287. HEREIN OP BILLS OF EXCHANGE, ETC. 129 There is one very important exception to the rule Excei)tinn to reqniriua: notice of dishonour of a bill to be ffiven to *'^': ^'"'° '*;'• 1 c> ^ ... . . quiriug notice charge the parties not primarily liable. This exception of dishonour to is established in the leading case of Biokerdihe v. Boll- ^ g'^^°- man (in), and is to the effect that it is not necessary to BvUmm. give notice of dishonour of a bill to the drawer of it,! if he (the drawer) had no effects in the hands of thai drawee, so that he could not be injured for want of notice. This is the case of an accommodation accept- ance, and may be illustrated thus : — A. draws on B., who accepts for A.'s accommodation, and on present- ment to B. the bill is dishonoured ; to entitle the holder to sue A, it is not necessary to give him any notice of dishonour, because as he had no assets in B.'s hands he cannot possibly be injured. Cases subsequent to Bicherdihe v. Bollman have, however, laid down that its principle is not to be extended (n), and therefore it has been decided upon it that it does not apply, and that the drawer is entitled to notice, where he has reason to believe that a third person will provide for payment of the bill, e.g., where the bill is both drawn • and accepted for the benefit of an indorser, for here the party expected to meet it is such indorser (o). It is a rule not only as to bills and notes, but as to Effect of all instruments generally, that any material alteration biiiTanTotiier after execution will vitiate the instrument, except as to instruments. persons consenting to such alteration {p). This is particularly shewn in the leading case of Master v. Master v. Miller (q), where it was held that an unauthorized ' "' alteration of the date of a bill of exchange after ac- ir -3 *J ceptance, whereby the payment would be accelerated, 1 vf^, . , avoids the instrument, and no action can afterwards l*^^ *<- «e^-^t«l (»n) 2 S. L. C. 50 ; 1 T. R. 406. (n) 2 S. L. C. 59. (o) See Carey v. Scott, 3 B. & Aid. 619. {p) Pigot's Case, 11 Rep. at fol. 27 a; Master v. Miller, 1 S. L. C. 871 ; 4 T. R. 320. ( , .,' he paid it to the plaintiff's, his bankers, in consideration ■ . eWwvvJ^ and on account of an amount owing to them exceeding that sum on his overdrawn account. Before present- ment of the cheque Lizardi stopped payment, whereby (jl) Broom's Corns. 453. (4 1 S. L. C. 526 ; 1 Burr. 452. (a) See ante, p. 120. (6) Byles on Bills, 335. (c) Goodman v. Harvey, 4 A. & E. 870 ; Usher v. Rich, 10 A. & E. 784. (d) Ibid.; Raphael v. Banh of L'ngland, 17 C. B. 161 ; and cases collected in 1 S. L. C. 548-532. (e) L. R. 10 Ex. 153. Lord Coleridge, C.J., dissented from this decision, which has, however, now been affirmed by the House of Lords (see Weekly Notes, July 8th, 1876, p. 213). K 2 .^•) OF MERCANTILE CONTRACTS, AND the consideration for the defendant giving the cheque failed, and he accordingly instructed his hankers not to honour it, and this was an action brought to recover the amount. There was no doubt that had the cheque been parted with to the plaintiffs for value then paid ho7id fide without notice, they could have recovered, and the court decided that they could do so here, the already existing debt being equivalent to a first advance. No title can be obtained through a forgery. How the liability on a bill or note may be dis- charged. Acts which will operate to discharge sureties will operate to discharge drawer or indorsers. The general rule is, that no title can be obtained through a forgery, and if a bill or note bearing a forged indorsement is paid by a banker the loss will fall on him and not on the customer, in which re- spect it is now different to a cheque, as is hereafter noticed (/). The liability on bills and notes may be discharged in different ways, and especially as to different parties to them. If the person primarily liable on such an instrument pays the amount, that necessarily dis- charges all the other parties, but if a person not so primarily liable pays it, then only he and parties sub- sequent to him are discharged, and the liability of prior parties remains. Irrespective of payment the obligation on such an instrument may be discharged at any time by parol, and, it seems, without any con- ' sideration {g), also as to parties not primarily liable by omission to present and give due notice of dis- honour, and as (as has been pointed out (h)) the position of the parties is similar to that of creditor, principal debtor, and surety, any act that will operate to discharge sureties will operate to discharge parties not primarily liable on bills and notes {i). Noting or pro- testing is not necessary to entitle a person to sue on an (/) See post, p. 137. {(J) Byles on Bills, 234. (A) Ante, p. 121. («■) For the acts that will operate to discharge sureties,see ante, pp.41, 42. HEREIN OF BILLS OF EXCHANGE, ETC. 133 inland bill or note, though even as to them noting is Noting and very usual, but in the case of a foreign bill both noting ng°^gar°^for and protesting are generally necessary. By the noting a foreign, but is meant a minute made by a notary public or consul of °^'[.^^j j^^lJ the fact of the presentment and dishonour of the in- strument ; and by the protesting is meant a solemn declaration by the same official that the instrument has been presented for payment and dishonoured. An What is an inland bill is one both drawn and payable in the United ^"^al is^a Kingdom, or the Islands of Man, Guernsey, Jersey, foreign bill. Alderney, and Sark, and the islands adjacent to any of them, being part of tlie dominions of her Majesty (k), . and a foreign bill is one either drawn abroad or payable abroad. The chief peculiarities of a foreign bill in which it differs from an inland one are, that it may be stamped after execution ; it generally ree[uires noting and protesting ; it is most usually drawn in parts ; it is frequently drawn at one or more " usance," and with regard to the law which binds such bills, where both drawn and payable abroad, they will be construed according to the foreign law ; where drawn here and accepted abroad the liability of the drawer is accord- ing to our law, and that of the acceptor according to the foreign law, and where drawn abroad and accepted here the liability of the drawer will be according to the foreign law, and that of the acceptor according to our law (l). A receipt given on the back of a bill or note for the Receipt on money requires no receipt stamp {m), and a person pay- Jr'^t'frequiL ing a negotiable instrument has a right to the posses- no stamp. sion of it (n). Promissory notes, bills of exchange, or drafts, or Bills and notes undertakings in writing, beina; negotiable or trans- {°'^' ^^^^ ^'^^'^ hibited. (A) 19 & 20 Vict. c. 97, s. 7. (0 Broom's Corns. 464, 465. (to) 33 & 34 Vict. c. 97, Schedule, title " Receipt, Exemptions (n) Byles on Bills, 226. 134 OF MERCANTILE CONTRACTS, AND ferable for the payment of any snm or sums of money less than the sum of 20^'. in the whole, are prohibited under a penalty of £5 (o). Certain penalties were also required in the case of such instruments above 20s. but less than £5 (|>), but this statute is not in force at the present time (q). Ambiguous instiumeut. If an instrument is on its face so ambiguous that it is doubtful whether it is meant as a bill or a note, it is in the election of the holder to treat it as either, and where a person gave a note for money borrowed "which I promise never to pay," it was held that the word " never" might be rejected (r). A corporation cannot bind itself by a bill or note unless incorporated for the very pur- ipose of trade (s). EtTect of loss of a negotiable ■ instrument. Bill or note carries interest. The effect of losing a negotiable instrument formerly was that no action could be brought in respect of the amount payable thereon, because there was always the possibility that it might have got into the hands of a bond fide holder for value ; but equity would have given relief on a proper indemnity being given on the prin- ciple of an accident, and by the Common Law Pro- cedure Act, 1854 (t), power was given at law for the court or a judge to order that the loss should not be set up on a like indemnity. A bill or note carries interest from the time of dis- honour as regards the acceptor or maker thereof, and as regards any other party liable thereon from the time of notice of dishonour having been given to such other party, and it has been decided that when a person guarantees payment of a bill or note, he is liable not (o) 48 Geo. 3, c. 88, ss. 2, 3. ip) 17 Geo. 3, c. 30. (7) 38 & 39 Vict. c. 72, continues its repeal till 31st December, 187G, and end of then next session. (/•) Chitty on Contracts, 94. (s) Ibid. 94, 249. (t) 17 & 18 Vict. c. 125, s. 7. HEREIN OF BILLS OF EXCHANGE, ETC. 135 only for the principal amount of it, but also for interest (u). In the case of bills of exchange or promissory notes, 18 & 19 Vict. a special remedy has been provided by the Summary -p^.^^J^^*,*'' Procedure on Bills of Exchange Act, 1855 (x), for under that statute the holder of such an instrument, j)rovided it is not more than six months overdue, may issue a writ of summons, to which the defendant cannot appear as a matter of course, but only on leave to be obtained from a judge, wJiich leave will only be granted on paying the amount claimed into court, or shewing upon affidavit a defence upon the merits. If within twelve days j)f service of the writ the defendant does not get this leave and appear, the plaintiff may at once sign final judgment and issue execution. The holder may sue all the prior parties in one action, but all subsequent proceedings are as if separate writs had been issued. It is no defence to an action brought on a bill or note that after the day for payment the defendant tendered the amount to the plaintiff, for he has committed a breach in not paying on the day, and the plaintiff's claim is for damages (y). To sum up as to bills and notes, the following may be Summary of stated as the chief points in which they differ from ^[j^erences m . . ■■• «' bills and notes other ordinary simple contracts :— from other simple contracts. 1. They must always be in writing by the custom of merchants. 2. They must always be stamped, and as to inland bills before execution. (««) Ackerman v. Ehrensperger, 16 M. & W. 99. {x) 18 & 19 Vict. c. 67. Cheques are included under " Bills and Notes in this statute. (v) Jlu^nc V. Peploe, 8 East, 168. 13G OF MERCANTILE CONTRACTS, AND 3. They import a consideration, so that it need not appear on their face (z). 4. They carry interest. 5. They are negotiable. 6. There is a special procedure on them under 18 & 19 Vict. c. 67. Relation exist- The relation existing between a banker and his cus- bankerlnd" tomcr is not that of trustee and cestui que trust, but customer. " the customer lends money to the banker and the banker promises to repay that money, and, whilst in- debted, to pay the whole or any part of the debt to any person to whom his creditor, the customer, in the ordi- nary way requires him to pay it " (a), and this debt is paid by the banker honouring his customer's bills, notes, and cheques. Cheques. A cheque has already been defined as a written order by a customer to his banker to pay a certain sum to a person therein specified, or bearer, or order ; the drawer of the cheque is the person primarily liable, and it is the duty of a banker to cash his customer's cheques if he has assets of that customer, and if he fails in this duty an action will lie against him, even although the customer has sustained no actual loss or damage by his The rules as to'act {]j). Cheques are not intended, like bills and notes, &p\Ayz. k A. 415. HEREIN OF BILLS OF EXCHANGE, ETC. 137 should be presented during the next day, and if in a different place, forwarded for presentment within that time, and presented by the person to whom so for- warded within the day after he receives it (c), and on the dishonour of a cheque the drawer is entitled to notice, unless there were no sufficient assets at the bank when he would naturally have expected the cheque to be presented, and he had no reasonable ex- pectation that it would be cashed (d). The non-pre- But uon-pie- sentment, however, of a cheque within the proper time '''^'!^™'^°'^ ^""r? ' ' i i- i- not necessarily will not operate to destroy the holder's right to recover, discharge the unless in the meantime the banker has failed, leaving: ^^'^^^g^'^g assets of the customer (e). If a banker pays a cheque to which the drawer's A banker pay- signature has been forged, or a cheque which has been cheque bears fraudulently altered so as to increase its amount, he the loss ; but (the banker) must bear the loss incurred thereby, pa vT a° cheque^ unless it has been caused by the customer's negli- with a forged gence (/). The reason of a banker being liable to pay a forged cheque is because he is supposed to know all his customer's signatures, but as this reason could not apply to cases of the forging of an indorsement to a cheque, it has been provided that the banker shall be discharged if the cheque purports to be duly indorsed, so that in the case of the forged indorsement of a cheque the lossfalls on the customer {(/). If a banker if a banker pays money on a customer's cheque to some third i^^J^ ^ person, he cannot, on discovering that such customer cheque to a has overdrawn his account, recover back the sum he has ^^^'■''^ person .... . . ^ . . ^ . in ""^ cannot paid {h) ; thus, in the case just cited below, the facts recoreramonnt were that the plaintiff had presented a cheque at the ^''°'" ^^^^ ^ , ■■• . ■■■ •>■ person on nml- defendant's banking-house, and the defendant's cashier iug customer has overdrawn _ his account. (c) Byles on Bills, 19, 20. (il) Ibid. 26, 296. (e) Ibid. 20. (/) Robarts v. Tncker, 16 Q. B. 560; Yoimj v. Grotc, 4 Biug. 253. (.'/) 16 & 17 Vict. c. 59. (h) Chambers v. Milkr, 13 C. B. (N.S.) 125. OF MERCANTILE CONTRACTS, AND couuted out the amount in notes, gold, and silver. The plaintiflF took up the amount, counted it once, and was in the act of counting it again when the cashier (having discovered that the drawer's account was over- drawn), demanded the money back, and upon the plain- tiff's refusal, detained him, and obliged him to give it up. The plaintiff now brought this action for the assault and false imprisonment by the cashier, and it was held that he was entitled to recover, the property in the money having passed to the plaintiff, and the banking company or the cashier having no right to demand it back again. Cheques are frequently crossed, that is, they have the name of some banker written across them, or simply the words " & Co.," leaving the name of the particular banker to be supplied. The subject of crossed cheques, irrespective of any statute, is well treated in * Byles on Bills,' as follows : — " It is now and has long been a common practice, not only in the city of London, but throughout England, to write across the name of a sIfTb? Byles, cheque the name of a banker. The meaning of this in his work crossing was to direct the drawees to pay the cheque ou Bills. o •II only to the banker whose name was written across ; and the object was to invalidate the payment to a wrongful holder in case of loss ; but it has been held that at common law the effect is to direct the drawees to pay the cheque, not to any particular banker, but only to some banker, and not to restrict its negotia- bility. Therefore, as between the banker and his customer, the circumstance of the banker paying a crossed cheque otherwise than through another banker, is at common law strong evidence of negligence on the part of the banker, rendering him responsible to his customer. The holder may at common law erase the name of the hanker and either suhstitute that of another hanker or leave the words '& Co.' remaining alone. It is also not unusual to write the words ' & Co.' only in the first instance, leaving the particular banker's Crossing cheques. Meaning, object, and ett'ect of at common law, as stated by J i/^z /^/. c-3 .z-*-^ ^^^^ '^ ^^ ^^^^A,; iU^^Lu y^^' g^/. ^/l^ ^ 2j^^L0JU JLj^: .^^ ^ /t* ^*<;(txj ri , , ^; ^ f'^^ ^^ 4^ Jul /fe/c/ ^ _ jr/ taJ,^4JUMU. liM4u^ ^ "^/^ / -^^ ;^-^ / uUo^ ^^^uu/ €cuZ^^ 5 ':&# ^ ^Ligr^^-^^^ -^ I W^ WP I — ^'^^ipiniw HEREIN OF BILLS OF EXCHANGE, ETC. 139 name to be filled up afterwards or not, so as to insure the presentment by some banker or other " (i). By an Act passed in 1858 to amend the law relating 21 & 22 VHct. to cheques or drafts on bankers, it was provided (h) ^* ^^' that " whenever a cheque or draft on any banker, payable to bearer or to order on demand, shall be issued crossed with the name of a banker or with two transverse lines with the words ' & Company,' or any abbreviation thereof, such words and crossing shall be deemed a material part of the cheque or draft, and, except as hereafter mentioned, shall not be obliterated, or added to, or altered, by any person whomsoever after the issuing thereof; and the banker upon whom such cheque or draft shall be drawn sliall not pay such cheque or draft to any other than the banker with whose name such cheque or draft shall be so crossed, or, if the same be crossed as aforesaid without a banker's name, to any other than a banker " (I). The statute also pro- vided that the lawful holder of a cheque or draft un- crossed might cross it, or might pat in the name of any banker where it had been crossed only with the words " & Co.," and the banker then should not pay such cheque or draft to any other than the banker with whose name it was crossed (ni). The fraudulently cancelling, destroy- ing, or obliterating the crossing of a cheque is an offence against the criminal law {11). A construction was, however, lately put upon this Smith v. Uni'in Bi of London. statute which, though well founded upon principle, y^^ o/^Zq^,^ ""' undoubtedly took the whole mercantile community by surprise. In the case of Smith v. Union Bank of London (0) the facts were that Mills and others drew _^____ 'Kaju-<^ t ■ "*^ (0 Byles on Bills, 22. r^ *• ■ ■ '■- ^^ i^.'J^ (k) 21 & 22 Vict. c. 79. ' (0 Sec. 1. (iri) Sec. 2. (n) Sec. 3 of 21 & 22 Vict. c. 79, was repealed by 24 & 25 Vict. c. 95 ; but see now 24 & 25 Vict. c. 96, s. 27. (o) L. R. 10 Q. B. 221 ; affirmed on appeal, L, R. 1 Q. B. Div. 31. 140 OF MERCANTILE CONTRACTS, AND a cheque on their bankers, the defendants, payable to the order of the plaintiff, who received it, indorsed it, and crossed it with the London and County Banking Company's name. The cheque was then stolen, and never reached the London and County Banking Com- pany, but came to the hands of a customer of the London and "Westminster Bank as a bond fide holder for value. That person paid it into the London and "Westminster Banking Company, who presented it to the defendants, and they paid it, notwithstanding that it was crossed on the London and County Bank. The plaintiff then brought his action, treating himself as owner of the cheque, to recover the amount of it from the defendants, on the ground that their paying it was contrary to the provisions of 21 & 22 Vict. c. 79. The court, however, held that the statute did not affect the negotiability of the cheque ; the plaintiff had indorsed the cheque so that the customer of the London and "Westminster Bank had become a hond fide holder of it before it was presented to the defendants, and the plaintiff was not the holder ; and there was nothing in the statute to give the plaintiff, who had ceased to be the holder, any right of action against the defendants. RcHson of this The rcason of the decision may perhaps be found in decision. ^jjg fact that the pcrsou who got payment was a lawful holder, and as he might in various ways have got payment strictly according to the crossing, — e.g., by opening an account with the London and County Bank, or paying it into the account of a friend who banked there — he was allowed to do directly what he might have done indirectly. As to what really was the effect of the statute 21 & 22 Vict. c. 79, it may be well to quote the following extract from the judgment of the Court of Appeal delivered by Lord Cairns : — " It is asked, what then is the effect of the statute in enabling the payee to cross a cheque ? We think the answer is easy. It imposes caution at least on the bankers. But HEEEIN OF BILLS OF EXCHANGE, ETC. 141 further, by its express words it alters the mandate, and the customer, the drawer, is entitled to object to being charged with it if paid contrary to his altered direc- tion. This must often oj)erate for the benefit of the i-^j^^/ payee or holder who had crossed the cheque. Further, 1_u.-»juJm^ U^ if in addition to the cheque being crossed the signature . ,^. 1-,^,^,^ Jl^ ' of the payee was forged, he would retain his property, ,(.:. /Vi.-.*,^^. '' /. .... and could recover it from the banker notwith- standing 16 & 17 Yict. c. 59, which protects a banker paying on a forged indorsement " (p). * In consequence of this decision of Smith v. Union Provisions of BanJc of London an Act has however just been passed .S9&io_Wct' (39 &^40 Vict^c. 81), which entirely repeals the 21 & 22 Vict. c. 79, and deals with the subject of crossed cheques more explicitly, and it definitely provides by sections 7 and 10 that where a cheque is crossed generally it shall only be paid to a banker, and where crossed specially only to that particular banker, and if paid otherwise the banker on whom it is drawn shall be liable to the lawful owner for any loss he may sus- tain owing to its having been so paid. The student is referred to the Act itself, which will be found set out in Appendix B. (p) L. R. 1 Q. B. DiT. 35. 142 OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF CHAPTER YI. OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF ANY DISABILITY OF THE CONTRACTING PARTIES. JIatters con- sidered in this chapter. Under this heading it is proposed to consider shortly contracts as to ships, insurance, patents, copyrights, and trade-marks; contracts with legal practitioners, medical men, witnesses, and corporations, companies, and in- stitutions ; and contracts in the relations of master and servant. I. Ships. Merchant Shipping Act, 1854. How a ship or share therein trans- ferred. As to owner- ship. The statute containing provisions as to the registra- tion, ownership, and generally as to merchant shipping, is the Merchant Shipping Act, 1854 (q). One most im- portant provision in that statute has been already noticed (r), viz., that a registered ship, or any share therein, must be transferred by bill of sale, under seal, in the form given therein, and attested by a witness, and registered by the registrar of the port at which the ship is registered (s) ; and this registration is of great importance, for in the case of several mortgages, they will have priority, not according to the date of exe- cution, but according to the date of registration (t). On the discharge of a mortgage, satisfaction thereof has to be entered on the registry (w). As to ownership in a British ship, it is considered as (ri) 17 & 18 Vict. c. 104, amended by 18 & 19 Vict. c. 91 ; 25 & 26 Vict, c. 63 ; 30 & 31 Vict. c. 124 ; 31 & 32 Vict. c. 129 ; and 32 & 33 Vict. c. 11. (r) Ante, p. 38. (s) 17 & 18 Vict. c. 104, ss. 55, 57. This transfer is exempted from stamp duty, as also are all^agreements between masters of ships and seamen, if made in the proper form, 17 & 18 Vict. c. 104, s. 91. (t) 17 & 18 Vict. c. 104, s. 69. (?<) Sec. 68. ANY DISABILITY OF THE CONTRACTING PARTIES. 143 being divided into sixty-four equal parts, and persons ^ u may hold one or more shares, so only that the total number ^^ '^^, '^ of registered holders does not exceed thirty-two ; but five or less persons may register as joint owners of one or more shares, and as such be considered as one per- son (x). Ships, to have the privileges of British vessels, must be duly registered, and a certificate of the registry is given ; and certificates may also be given by the , registrar of ships, authorizing the same to be disposed of or mortgaged out of the United Kingdom (ij). The conduct of a ship during its voyage is intrusted Power of to a person called the master, and he is invested with '^^^^^^l 'f^^^^^ a power to do everything necessary to bring the voyage to sell or to a successful termination. If it becomes necessary to ^^° sell or hypothecate the ship, the master should, if he has the opportunity, obtain the owner's consent thereto ; but if he is at a distant English port, or at a foreign port where the owner has no agent, and immediate ■ payments are required, he has power to borrow money on the owner's credit, or even to sell or hypothecate the ship and cargo ; and if the cargo is dealt with, the owner must indemnify the merchant, who will have a right either to take what his goods actually fetched, or what they would have fetched had they been brought to their destination (z). It must necessarily be that the master of a ship has Master has an unlimited discretion how to act in times of peril )?°c™tioQ_ during the voyage, and it may be sometimes necessary for the safety of all to incur some loss, e.^., by jet- Jettison. tison, which is the throwing of goods overboard, which sink and are lost ; in such cases it would be manifestly unfair that the particular owner should bear the whole loss of what has been done, as much for others' benefit (ar) 17 & 18 Vict. c. 104, s. 37. (i/) Ibid. ss. 19, 76-83, 102. («) Smith's Mercantile Law, 8th ed. 123, note, 181, 411 ; Gunn v. Roberts, L. R. 9 C. P. 331. lU OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF - '1 General and particular averatre. VJ^y**^lAA. as his o^Yn, aud the loss is therefore rateably adjusted between all owners, which adjustment is called general average. As distinguished from this, particularaverage is sometimes spoken of, which simply arises when some particular injury is done, by accident or otherwise, not voluntarily, for the benefit of all ; and here no con- tribution to the loss is made, but it has wholly to be borne by the person to whom the injured property belongs (a). Salvage. Rule as to damages in the case of collision between two ships. When some special and extraordinary assistance is rendered, whereby a ship, the persons on it, or its cargo are saved, the persons rendering such successful assistance, who are called salvors, are entitled to a com- pensation, which is called salvage (h). As to the per- sons who may become entitled to salvage, it may be particularly noticed that, though seamen of an aban- doned wreck may be, yet passengers may not be (c) ; and with reference to the salvage itself, it is only allowed in the case of success ; and the practice is never to allow more than a jnoiety for salvage (d). In the case of a collision between two ships, the rule in the Court of Admiralty has always been that the damage shall be borne in this way : the loss sustained by the two vessels is added together and divided between them (e), and the Judicature Act, 1873 (/), specially provides that this rule is still to continue. Bottomry bond. A_bottomry bond, strictly speaking, is a mortgage or pledge of a ship by the owner or agent, to secure the repayment of money lent for the use of the ship ; and the conditions of it are, that if the ship is lost, the (a) See the distinction between general and particular average, well stated by Lord Kenyon in Birkley v. Presgrave, 1 East, 226, 227. (b) See Brown's Law E)ict. 319. (c) The chief statutory provisions as to salvage are contained in 17 & 18 Vict. c. 104, part 8. (J) 27ie /nca, Sw. 370. (e) See Griffith's Judicature Acts, 41, 42. (/) 36 & 37 Vict. c. 60, s. 25 (9). ANY DISABILITY OF THE CONTllACTING PAllTIES. 145 lender loses his money ; but if it arrives, then, not only the shij) itself is liable, but also the person of the bor- rower. A security given on the cargo, and not the Bef^pondcntia ship, is also now generally called a bottomry bond in- discriminately with the above, though formerly dis- tinguished as a respondentia bond. Because of the risk the lender of the money runs of losing his money entirely by the loss of the ship, it has always been legal, even when the usury laws were in force, to reserve any amount of interest on his loan ; and if there are several of these securities given during a voyage, the last will generally be paid first, because, without the last, pos- sibly the vessel might have been lost altogether {g). The owner of a ship sometimes lets it, or some part Difterence of it, for a particular voyage, which is done by means chaTteTpaity of an agreement called charterparty (li), and sometimes and a bill he simply agrees to carry any one's goods therein, with- out letting any particular part of the ship, which is done by bill of lading, which is simply a receipt for the goods and an undertaking to carry them, given by the owner or master {i). A bill of lading is a negotiable instrument, passing by indorsement the property in the goods, and the indorsee may sue thereon in his own name (h), and such an indorsement for value hona fide without notice deprives the vendor of any right of | stoi)]j)age in transitu (J), unless the person through whom » the bill of lading comes had no authority to put it in circulation [ni). In respect of the carriage of goods Freight. either by means of a charterparty or bill of lading, a certain reward Js payable, which is called the freight, and for wliich the shipowner has a lien on the goods ' provided they are in his possession ; if, however, he (^) See hereon, Smith's Mercantile Law, 409-414. (Ji) See Brown's Law Diet. 59. (0 Ibid. 46. {k) 18 & 19 Vict. c. Ill, s. 1. (/) As to stoppage in transitu, see ante, p. 79, and case of Lickharrow v. Mason, there quoted, (m) Gurney v. Behrend, 3 E. & B. 622. L 14() OF SOME PARTICULAIl CONTRACTS IRRESPECTIVE OF Liability of shipowners for losses to goods (luring ) 17 & 18 Vict. c. 104, s. 503. (7) Ibi,l. (r) Ibid. s. 388. (s) Ibid. s. 503. (0 25 & 26 Vict. c. G3, s. 54. ANY DISABILITY OF THE CONTRACTING PARTIES. 147 security or indemnification given in consideration of a ' sum of money against the risk of loss from the happen- ing of certain events (u), but this definition, though explaining the primary object, cannot be considered as accurate when applied to life insurance, as will be pre- sently explained. Insurance may be of three kinds, Three kin.is. viz., life, fire, and marine, and as we have just consi- dered the subject of shij)s, it will be convenient to con- sider the last first, as relating thereto. Marine insurance is generally undertaken by certain Marine persons who are called underwriters, who subscribe the '°^"^''^"''*'- policy, each indemnifying for the amount set opposite his name. The policy is of a very ancient form (there seems no object in setting it out in a work like the present), and the insurance may be either for a par- ticular voyage, or for a certain period, in which latter case it is called a time policy. There are generally in policies certain things expressly warranted, e.(/., the time of sailing, and the safety of the ship, and if there is any untruth in any such warranties the insured can- ■ not recover, even although the point warranted was not of any material importance. There are also three Three things things impliedly warranted in every policy, viz., '™\!|.!|jj\'ea i„ (1) That no deviation shall be made from the proper 'a marine course of the voyage ; (2) that the vessel is seaworthy ^'° "^^'' at that time; and (3) that reasonable care shall bej taken to guard against risks; and a breach of any of! these three implied warranties will furnish a good defence to an action on the policy. On a loss occurring the underwriters are liable for the whole amount for which they have underwritten the policy, but if the ship or cargo is not totally destroyed, but may become i so, then they arc only liable for the whole aniount if the owner abandons it within a reasonable time (x). (m) Brown's Law Diet, 191. {x) See hereon generally, Arnoiild on Marine Insurance. L 2 148 OF SO'SIE PARTICULAR CONTRACTS IRRESPECTIVE OF Contracts of A Contract of marine insurance is therefore simply iiwrine and ^ purely a Contract of indemnity. So, also, is equally lire insurance I J .... are entirely a contract of firc insurance ; it is simply a contract in hiJemnUv!'* Consideration of certain annual sums paid by way of premium to indemnify the person insuring against any loss that may happen from fire, and if no fire happens But a contract there can be no claim under the policy. But a con- ance Is'notr *^'^* ^^ Ulej^suraiice is totally difi'erent, for, as decided Daiby v. rndia, in the well known case of Dalbi^ \. India mid London 4c., Assurance j^iJq Assuvance CoiivjMny (y), it is a contract to pay a ompa y. ccHam^um of money on the death of a person in con- sideration of the due payment of a certain annuity for his life, and is not a mere contract of indemnity ; so that if one j)erson has insured another's life, although by that other's death he may not have sustained the slightest damage, he is yet entitled to recover on the To enable a policy. A mere wager policy, however, cannot be good, Ture^'ano'ther's ^01' ^^ is necessary that every person insuring another's life he must jifg should havc had an interest therein at the time of insurable effecting the insurance (z), and the name of the person interest in it interested therein is to be inserted in it («) ; but although that interest afterwards terminates the policy may be kept up and recovered on. Thus if a creditor insures his debtor's life, though he is afterwards paid, yet he can recover from the insurance ofiice. No more than the insurable interest at the time of effecting a policy can be recovered, and if several policies are effected with different ofiices, the insured can recover no more from the insurers, whether on one policy or many, than the amount of his original insurable interest (jS). A person may The Act 14 Gco. 3, c. 48, which requires a person to insure his own life. ■ ■ (t/) 15 C. B. 365 ; overruling Godsall v. Boldero, 9 East, 72. I(?) 14 Geo. 3, c. 48, s. 1. A like provision is made as to marine insur- ance by 19 Geo. 2 , c. 37 , which however does not apply to foreign ships, so that a wager poficy as to them is good. (a) 14 Geo. 3, c. 48, s. 2. (/;) llehdon V. Wed, 3 B. & S. 579. ANY DISABILITY OF THE CONTRACTING PARTIES. 149 have an insurable interest in the life he insures, does not at all prevent persons insuring their own lives, and though a husband, parent, or child, has not (unless he or she has some interest in property dependent on his, her, or their life) an insurable interest in the lives of a wife, child, or parent, yet a wife has an insurable in- a wife may terest in her husband's life (c). By the Married '^-"'''^ ^f ,., nusbtind s Iii6 Women's Property Act, 1870 (d), it is provided that a pj-^^^igion ^f married woman may effect a ]3olicy of insurance upon 33 & 34 Vict. her own life, or the life of her husband for her sepa- '^' ' ^^"°°- rate use ; and a policy of insurance by a married man on his own life, if so expressed on its face, may enure as a trust for the benefit of his wife and children or any of them, and as a trust not be subject to the con-' trol of the husband or his creditors ; but if it has been, e^ uu^a-^ Im^ effected for the purpose of defrauding creditors they are .. w.Jr uT d^f\ju^ entitled to receive out of the sum secured an amount ;;^ CwaXi / ' equal to the premiums paid. ^ c^ f In effecting any policy of insurance, whether life, There must fire, or marine, it is material that there should be no ^"^ "° '^"°: m • T • cealment in concealment on the part of the person enectmg the m- eft'ecting a surance. Concealment in the law of insurance has P°i"^y- been defined, as " the suppression of a material fact) . , ^ within the knowledge of one of the parties which the ^ i a^< '! ' other has not the means of knowing, or is not presunied u to know " (e). The maxim of caveat emptor {/) does not at all apply to the contract of insurance, for the person effecting an insurance must state everything, not what he believes to be, but which is in fact mate- rial to the question of the insurance ; and if anything material, or which might operate to influence the rate of premium, is withheld, it will vitiate the policy (g). (c) Feed v. Roijal Exchange Co., Peake Add. Ca. 70. Id) 33 & 34 Vict. c. 93, s. 10. (e) Arnoukl on Mai'ine Insurance, 509. ( f) As to which, see ante, p. 84. (.7) See Bunyon on Life Assurance, 29 ; and see also Carter v. Boclti. 1 S. L. C. 555, and notes. 150 OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF Etll'ct of suicide on a life policy. Irrespective of any condition in a policy of life in- surance, on principles of public policy, if a person who lias eifeeted a policy of insurance on his own life, after- wards dies by the hands of justice, or commits suicide, unless, in the latter case, he was insane, and not ac- countable for his acts, the policy is vitiated, and his representatives cannot recover the amount thereof. But in addition to this it is the universal practice of insurance companies to insert in their policies condi- tions vitiating them on such events, and such words may be made use of as to make it of no difference in the case of death by a person's own hand, whether he was sane or insane at the time. It is important, how- ever, to note, that in the absence of any condition on the point, the rule of the common law is, that whether the amount of the policy can be recovered or not, depends on the question of whether or not the person was at the time responsible for his own acts {li). That (by statutes) {i) life and marine policies may now be assigned, has been previously noticed (k). 111. I'atcuts. A patent may be defined as a grant from the Crown by letters-patent, of the exclusive privilege of making, using, exercising, and vending, some new invention {I). Anciently, the prerogative that was vested in the Crown of granting such an exclusive right was much abused, and in consequence was passed an Act known as the Statut e of Monopolies {m), whereby the granting of such monopolies was declared illegal, with certain excep- tions ; and by force of this and subsequent statutes, the law now is that a patent may be granted in respect of a new manufacture for a period of fourteen years ; hidi a patent ^^^^^j^ •£ advisable, that term may be prolonged^for a be granted. (A) See hereon, Bunvon on Life Assurance, 70-79. (i) 30 & 31 Vict. c. "l44, and 31 Vict. c. 86. (/<:) See ante, p. 117. (0 Williams' Personal Pioi.erty, 245. (ot) 21 Jac. 1, c. 3. Statute of Monopolies Term for whicl ANY DISABILITY OF THE CONTEAOTINa PARTIES. 151 further period of seven or fourteen years {n). The in- ventor has to file a specification, describing accurately the nature of his invention, and to pay certain stamp duties ; and by the Patent Law Amendment Act, 1852 (o), a register of patents has to be kept, which is ^ register of open to inspection by the public on payment of a cer- \l H ^..^t.'' tain fee. A patent is assignable, and though the assignment is usually by deed, it does not seem neces- sary that it should be (p), and all assignments of ; patents have to be registered. For the infringement of his patent, the patentee has ^^iifr!^ a remedy both by an action for damages and also for / . ^t,/ j^ an injunction t o restrain the further infringement. ^^"^''^ f^%^ tu^ f^Jb^f Copyright is defined as the sole and exclusive liberty iv. Copyright. ' of multiplying copies of an original work or comjDosi- tion, which exists in its author or his assignees {q). By the Copyright Act (r), it is provided that this right Term fur shall exist for the natural life of the author, and seven ^ghVex'iTts. years from his decease, or for an entire term of forty-two years, whichever is longest. Besides copyright in books, copyright exists for various terms in music, engravings, photographs, and various ornamental and useful de- signs (s). If an article is written for such a work as \ an encyclopaedia, and paid for by the proprietor, the copyright will be in him ; but after a period of twenty- '' eight years, the right of publishing such article will revert back to the author for the remainder of the period for which copyright is allowed it). The right of property in copyright must be regis- (n) 5 & 6 Wm. 4, c. 83, s. 4, ameuJeJ by 2 & 3 Viet. c. 07, ami 7 & 8 Vict. c. 69, ss. 2, 4. (y) 15 & 16 Vict. c. 83, s. 39. (^) Williams' Personal Property, 244. (i/) Brown's Law Diet. 92. (r) 5 & 6 Vict. c. 45, s. 3. (s) See Williams' Personal Property, 2G1-263. (0 5 & 6 Vict. c. 45, s. 18. 152 OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF Copyright assignable bj- a mere entry in the register. tered at Stationers' Hall, and the same is afterwards assignable by an entry there of the transfer in the form given by the Act, and the registry is open to in- spection on payment of. a small fee {u). For the in- fringement of his copyright, the same remedies are open to the author as have before been mentioned to be open to a patentee (x). A trade-mark may be defined as some particular mark or signification adopted by a trader to identify certain goods. It is frequently said that there cannot be any property in a trade-mark, but it would appear to be more correct to say that there may be a certain qualified kind of property in it, provided it has been used by the trader as his trade-mark and become generally known in his /-, rV^..,.. s^j,.^/:,:.] trade as such (?/). For the infringement of a trade- '^ mark the same remedies are open to the proprietor of it as are open to a patentee for infringement of his patent, or to an author for infringement of his copy- right, i.e., to maintain an action for damages, and also for an injunction to prevent the further infringe- ment (2). y. Trade- marks. There may be a qualitied property in a trade-mark. What it was formerly necessary to prove in an action for infringement of a trade- mark. Trade-marks Registration Act, 1875. Sec. 1. Until lately, to enable a person to maintain an action for the infringement of a trade-mark what it was neces- sary was for him to prove was his user of it, that it had become well known in the trade as his trade-mark, and that the defendant had unlawfully adopted or in some way infringed it ; but by the Trade-marks Registration Act, 1875 (a) it has been provided that " a registry of trade-marks as defined by this Act, and of the pro- prietors thereof, shall be established under the super- intendence of the Commissioner of Patents ; and from (?i) 5 & 6 Vict. c. 45, ss. 11, 19, 20. {x) Ante, p. 151. (y) Leather Cloth Co. v. American Leather Cloth Co., 1 1 H. of L. Cas. 52a. (?) See generally as to infringement of ])atcnts, copyright, and trade- marks, Snell's Princijiles of Equity, 405-502. (a) 38 & 39 Vict. c. 91. ANY DISABILITY OF THE CONTRACTING PARTIES. 153 and after the 1st of July, 1876, a person shall not be entitled to institute any proceeding to prevent the infringement of any trade-mark as defined by this Act, until and unless such trade-mark is registered in pur- suance of this Act " (b) ; that " a trade-mark must be Sec. 2. registered as belonging to particular goods or classes of goods, and when registered shall be assigned and transmitted only in connection with the goodwill of the business concerned in such particular goods or classes of goods, and shall be determinable with such goodwill, but subject as aforesaid, registration of a trade-marJc shall he deemed to he equivalent to public use of such marJc " (c) ; and that " the registration of a Sec. 3. person as first proprietor of a trade-mark shall be 'prima facie evidence of his right to the exclusive use of such trade-mark, and shall^ after the expiration ' of five years from the date of such registration, be deemed conclusive evidence of his right to the exclu- sive use of such trade-mark, subject to the provisions of this Act as to its connection with the goodwill of a business " {d). No trade-mark of a nature similar to Sec. 6. one already registered, or very nearly resembling the same, is to be registered without special leave of the court, in respect of the same goods or class of goods (e). What it is necessary, therefore, now in an action for wiuat, there- the infringement of a trade-mark for the plaintiff to ^°'''^' '* '^ °®^^" " _ ■■■ necessary to prove is, that the trade-mark is duly registered (/), and prove. that it has been infringed by the defendant ; and this is only at first prima facie evidence, but after five years will be conclusive evidence of the plaintiff's right to the trade-mark. (IS) Sec. 1. (c) Sec. 2. (rO Sec. 3. (e) Sec. 6. if) And of this the certificate of the registrar is sutficieut evitleuce (sec. 8). 154 OF SOME rARTICULAR CONTRACTS IRRESPECTIVE OF Warranty As liRS bcforc bccii noticcel (//), it is provided by !".'.'!irsoid statute (//), that if any article is sold witli a trade-mark with a trade- thereoii, a warranty is implied that the same is genuine mark on them. ^^-^ ^^.^^^^ imlcss tlio Contrary is expressed in some writing signed by or on behalf of the vendor, and delivered to, and accepted by, the vendee. VI. Legal Legal practitioners may be either barristers, special practitioners, pigg^^j^j-g ^q^ r^^ i\^q ]jQ^y,^ certified couveyanccrs, or soli- citors. The three latter may recover their fees, but Barristers the first may not, their acting being deemed of a volun- cannot recover , , t ^^ • p i'i.iTij.i> their fee-s, and tary nature, and their lees merely m the light oi are not liable honorary payments ; and it follows from this, that no L„ s,c c . ^^^j^j^ y[qq against them for negligence or unskilful- ness (i). Position of In the absence of an express contract, the agreement client^"' ^^'^ ^^ ^ client with his solicitor is to pay him for his ser- vices the ordinary and usual charges, which are regu- lated chiefly by the time occupied in attendances, and by the length of documents ; and beyond this, in par- ticular cases, any special skill or trouble may be taken into consideration (k). The client is entitled to the personal advice of the solicitor, though if a clerk sees the client and has continual opportunities of conferring with his principal, this is sufficient (/). To entitle a Solicitor must soHcitor to rccovcr his bill of costs he must have had si*^'ned bill a ^ Certificate to practise during the time the work was month before douc, and it is also necessary for him to deliver a signed l"ivf'obSed.l^ill' o^ ^ ^ill ^^^^^ ^ 1^*^*^^ signed, a calendar month .before bringing the action {m), unless he obtain leave ((/) See ante, p. 84. (A) 25_& 26 Vict. .c._8a,-aa. 19, 20. («■_) It may be noticed that a bill was this year (187G) introduced into the House of Commons, having for its object certain alterations in the position of barristers, but it was rejected by a large majority. (/O See 33 & 34 Vict. c. 28, s. 18. (/) J/op/dnson v. Smith, 1 Bing. 13. (m) 6 & 7 Vict. c. 73, s. 37. And in this bill he must state the items ; it is not sufficient to jait a gross sum. ANY DISABILITY OF THE CONTEACTING PARTIES, 155 to commence the action before, wliicb he may do on the ground that the client is about to leave England, \w^ become bankrupt, liquidate, compound with his ere- ' ditors, or do any other act that may be prejudicial to the solicitor {iii) ; in any action, also, brought by a client against his solicitor the latter may set off the amount of his costs, though the month has not expired, and even though they have not been delivered, provided he delivers them before trial (o). A solicitor may now also a solicitor enter into a contract with his client for remuneration eTteiTnto a in some way other than by his ordinary charges {e.g., contract for 1 ••\ij.i L L ^ • • 1 • remuneration by commission), but such agreement must be m writing, ^y commission and if in respect of any action, must be submitted to'jOi" otiierwise. a taxing-master for approval before anything can be' received under it ; any agreement for payment, how- ■ ever, only in the case of success is void, and anystipu-' lation that the solicitor is not to be liable for neglie^ence is also void (jp). A solicitor could always take a security from his client for costs already incurred, and he can now also do so for costs to be incurred (q). The court or a judge before whom any action, matter, or other proceeding has been heard has power to order the solicitor's costs to be made a charge on the jDroperty recovered or preserved by the solicitor's acts (r). It is the duty of a solicitor to conduct his client's The duty of case with ordinary skill and due expedition to its con- ^ '^^^''-'^'''^i"- elusion ; and if, having commenced any proceedings, he refuses to continue them, he will not be entitled to his costs, unless specially justified by circumstances in so When he may doing, e.g., if the client denies that he is liable to pav ^''''=°''*/.'^''*' o' -^ ' _ _ 1 J jiroceedmgs the costs already incurred, here the solicitor may dis- he has com- continue and bring an action for such costs (s). If a "^^'^^^ • (n) 38 & 39 Vict. c. 79. (o) Brown V. Tibbits, 31 L. J. (C.P.) 2C6., Ip) 33 & 34 Vict. c. 28, ss. 4-15. Iq) Ibid. s. 16. (>•) 23 & 24 V ictj^ 127, s. 2A (s) Hawks xTVoiireir, 3 HT & N. 243. 15G OF SOME PAKTICULAR CONTRACTS IRRESPECTIVE OF When negli- gence of si«licitor may be set up as a defence to an action for his costs. solicitor, in the course of his acting, does not conduct bis client's business with ordinary diligence, but is guilty of some g^ross default, negligence, or ignorance, whereby his client is injured, he is liable to an action (;"), but he is not liable for a mistake on some doubtful point of law (u). A solicitor employing an agent is liable to his client for that agent's negligence. With regard to a solicitor's negligence, the rule has been long settled to be that if he brings an action to recover the amount of his bill, his negligence cannot be set up as a defence to the action, unless the negli- , gence has been of some such extreme kind that the client has obtained, and can obtain, no benefit what- iCver from his services; and that where the client has derived, or may derive, some benefit from what the solicitor has done, although a great part of the benefit he ought to have derived may have been lost to him, yet this will merely go to reduce the amount of the demand, and a cross-action must be brought by the client for the negligence complained of (x). It is pre- sumed, however, that this is not so now, for as by the Jiidicature_Actj_1875, as is hereafter noticed (^/), any- I thing may be set off, even although sounding in I damages, it would seem that any negligence may now be set up, although the client has derived some ' benefit (z). Position of a solicitor dealing with his client. A solicitor is not absolutely incapable of buying from, or selling to, or otherwise contracting with his client ; but if he does so, it is incumbent on him, on the con- tract being called in question, to shew either that the contract was perfectly fair, or that the client had sepa- (t) See Godfrey v. Dalton, G Bing. 460, 467. (m) Kemp V. Jjurt, 4 li. & A. 424. (^x) Chitty on Contracts, .518, 519. (y) 38 & 39 Vict. c. 77, Order Xix. r. 3, post, p. 209. («) As to what will amount to negligence in a .solicitor, see Chitty on Contracts, 521-524. ANY DISABILITY OF THE CONTRACTING TARTIES. 157 rate and independent advice, and if he cannot shew this, it will be set aside (a). Although a witness who is subpoenaed to attend a Witness's trial has a claim for his expenses, and when called to expensed is I give an opinion and not to speak to a fact for his loss not against I of time (b), his claim is not against the solicitor in the action, but against the party on whose behalf he is subpoenaed (c). The remedy of a sheriff's bailiff, how- But a ever, who executes process in an action, is not against '^'""'' '^ '''■ the client, but against the solicitor {d). Medical men may be either physicians, surgeons, vii. Medical apothecaries, or chemists and druggists. As to the '"'^"' latter their duty is simply to prepare, dispense, and sell medicines, and they cannot recover for advice. As to the three former they can recover their fees, provided they are duly registered under the Medical 21 & 22 Vict . Act (e), and provided also, as to physicians, that they-^^ — '• are not prohibited by the by-laws of any college of physicians from so doing (/), An ordinary practitioner, however, only registered under the Medical Act, and not holding any other qualification, cannot recover for \ medicines and attendance exce pt in a s urgical case, and if a medical man is guilty of such a want oTreasonable I care or skill that his patient receives no benefit, he cannot recover his fees, and he is liable to an action by the patient for negligence, even though he was not called in by such patient, or was not to be remunerated by him (^). Every person subpoenaed as a witness is entitled to viii. Wit- __^ nesses. (a) The subject of the dealings of a solicitor with his client belongs more especially to equity, and the student is referred, for further informa- tion thereon, to Snell's Principles of Equity, 403, 404. (6) See post, p. 158. (c) Lee V. Everest, 2 H. & N. 285. {d) Brewer v. Jones, 10 Ex. 655. (e) 21 & 22 Vict. c. 90, amended by 23 Vict. c. 7. (/) Chitty on Contracts, 530, 531. ((/) See generally as to torts arising peciiliarly from negligence, post, part ii. ch. vi. 158 OF SOME rAKTICULAR CONTEACTS IRKESPECTIVE OF bo paid a reasonable sum for his expenses of going to, staying at, and returning from the trial, and this sum must be paid or tendered him at the time of his being served with his subpoena, otherwise he is not bound to attend. If a witness lives within the bills of mortality- it is sufficient to give him a nominal sum with his subpoena, usually one shilling (h). If a witness who is not paid a proper sum for his expenses, yet chooses to attend, he is justified in refusing to be sworn until his expenses have been paid (i). When a witness is ontitlc(l to he paiil for loss of time. But though a witness is always entitled to his ex- penses, yet he is not entitled to be paid for his loss of time unless he is a witness called, not to give evidence upon some matter of fact, but of opinion, e.r/., an expert, and then he is so entitled (k). Service of a subpoena on a witness must be personal, and the remedy against a witness for not attending on his subpoena is either by attachment for contempt of court in not obeying the subpoena, which is a process of the court, or by an action for damages (I). IX. Corpora- tions, com- panies and institutions. A corporation is some legal body always known by the same name, and perpetually preserving its identity, and it may be either a corporation sole, e.g., a bishop ; or a corporation aggregate, that is, one composed of many persons, e.g., some company incorporated by Act of Parliament (in). Corporations aggregate may be created cither by Act of Parliament, charter, or letters patent, and the great peculiarity as to their contracts is that generally speaking they must be under their common seal. To this rule there arc, however, exceptions, which may chiefly be stated to be contracts comprising some (A) Chitty on Contracts, 542. (0 Ibid. (k) See Webb v. Farje, 1 C. & R. 23 ; Lee v. Everest, 2 11. & N. 285. (/) See also as to witnesses, post, part 3, ch. ii., on Evidence. (m) Williams' Personal Property, 218. ANY DISABILITY OF THE CONTE ACTING TARTIES. 159 matter of everyday occurrence, or of such a nature as to ' be actually necessary, these being valid, though not under the common seal (w) ; thus, in the case just cited, it was held that the guardians of a poor-law union who had given orders to a tradesman to supply and put up water-closets in the union workhouse, which he had accordingly done, could not afterwards defend themselves in an action brought for the price by shew- ing that there was no contract under seal, as, for the purposes for which the guardians were made a corpora- ' tion, it was necessary that they should provide such articles. Companies may be either unlimited or limited, and.pifferences ([f^^J^ /• now any company consisting of seven or more P^^'sons |^'^|^j]^g™^i^j may, and if more than twenty persons must, be regis-fiuuiimited tered (o). An unlimited company is simply a combina-^*^"™^'^"'*^^* tion of several persons together for some business, and the members stand in the position of ordinary partners, and liable to an unlimited degree to all the debts of the partnership, and the ordinary partnership rules will generally apply to them (|>). A company may, how- ever, be limited if duly registered as such {q), and the members are then only liable to the extent of their , ^^i.,.. ' - . different shares; so that any person contracting with o^^J^ ^^ ^^***^ ^ such a company must only look for payment to the '■~*^- */> '' *^ w*^ ^ a ssets of the company. '^^ - Any contracts made by a registered company need only be under such company's seal when the same would, if made by a private person, require a seal ; where, if made by a private person, writing would be necessary, signature by some person authorized by the company is sufficient ; and where no writing would be necessary if made by a private person, the contract (n) Clarke v. Cuckfield Union, 21 L. J. (Q.B.) 349. (o) 25 & 26 Vict. c. 89, ss. 4, 6. (p) For which see ante, p. 107 ct seq. in) 25 & 26 Vict. c. 89. IGO OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF may be made by parol by some persoB^aiitborized by tlio company (r). Shares in a registered company may be transferred by deed duly registered at the company's office, or, in the case of such a company limited by shares, whe n shar es are full y paid u p, by simple delivery of share warrants (s)7~ Liability iu With regard to contracts made with persons acting contract" on ^^ behalf of institutions and associations, such as behalf of charities, clubs, and the like, the rule , is that the [nstVtuUons ' pcrsous making, or authorizing the making of, the generally. contract are the persons liable, unless, indeed, the other party has specially agreed that he will look for {payment only to the assets of the institution. And this rule applies to all miscellaneous undertakings, it being always a question, when a person disputes his liability, whether he in any way authorized what has been done so as to make himself liable. Thus, if a person becomes one of a committee of direction of any such undertaking or institution, this will be evidence to shew that he has made himself liable for I goods supplied for its purposes, even although he r>.^ . I himself did not give, or assist in giving, the particular ,j: <>i'^"-''i order in question (^). The mere fact, however, of a J J f\ji^ ^ U' person being a member of a committee of management urv^"^ L*til.';; jyill not always in itself serve to render him liable ; it is only evidence of his having authorized the making of the contract. Thus, where wine for a club had been ordered by the house steward of a club according to the directions of the committee of management, in an action brought against two members of that com- mittee, it was held that it was a question for the jury whether the defendants had authorized the steward to order the wine in question {u). (r) 30 & 31 Vict. c. 131, s. 37. (s) Ibid. ss. 27-33. (J,) See Chitty on Contracts, 220-223. («) Todd V. Embj, 8 M. & W. 505. ANY DISABILITY OF THE CONTBAOTING PARTIES. 161 Contracts in the relation of master and servant x. Master may be conveniently considered under three heads, '"^ servan . viz. : — 1. As to the hiring. 2. As to the power of the servant, and the relation between the parties during the service ; and 3. As to the determination of the service. Firstly, then, as to the hiring. — There may be an As to the express contract for the hiring of a servant, and when ^^"^s- there is it may be either in writing or by parol, unless it is for a hiring for a period beyond a year, in which case writing is by the Statute of Frauds necessary (x), and it may perhaps be considered doubtful whether a contract for hiring and services for life does not require to be by deed (tj). In every express contract for hiring, its duration, and the wages in respect of the hiring, should be stated, but if there is no express contract, but simply an entering into service, it is called a general hiring, which has been decided to be for different terms according to the nature of the service (as will be next noticed), but in respect of which hiring it is always presumed, unless the con- trary appears, that reasonable wages are to be paid (z). Persons occupying the legal position of servants Different may be classified as clerks, domestic or menial servants, ^^"^^^ 1^ ■J ... servants. and servants who are neither in the position of clerks nor domestic nor menial servants. A general hiring Effect of of a clerk is a yearly hiring determinable by three ^^^^^^^ months' notice, or an equivalent three months' wages (a); a general hiring of a domestic or menial servant is also a yearly hiring, but determinable by a month's notice, or an equivalent month's wages (b) ; and a general hiring of other kinds of servants, though it (a;) 29 Car. 2, c. 3, s. 4, ante, p. 39. {y) See notes to Mitchdl v. Reynolds, 1 S. L. C. 432. («) Chitty on Contracts, 531. (a) Fair man v. Oakford, 5 H. & N. 635. (6) Pawcett v. Cish, 5 B. & Ad. 904. M 162 OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF will be taken primarily as a liiring for a year (c), must depend more especially upon the circumstances of each particular case, as, indeed, it must, to a certain extent, in all cases, so that the fact of a servant's wages being payable at longer or shorter periods, as the case may be, may alter the presumption as to the hiring and the length of notice required, as also may any usage or custom in any particular trade or business. Although a general hiring of a servant may therefore be con- strued as a hiring for a year, and so on from year to year, yet, as it need not necessarily extend beyond the year, it is valid though not in writing (d). As to the power of the servant, and the relation between master and servant. The ordinary principles of agency apply to these contracts. Illustration. Secondly, as to the power of the servant, and the re- lation between the parties during the service. — It will be at once seen that a person by entering into another's service becomes that other's agent, and that, therefore, the ordinary principles of agency apply, and answer the question of his power to bind his master by his con- tracts. These princij^les of agency have already been considered, and the very great difference in the powers of a general and a sj)ecial agent pointed out (e) ; and it will follow from that difference, that the power of a servant to bind his master must depend on whether he is merely a special agent, appointed simply now and then to do some particular act, or whether he is a general agent, having a wide power given him by his master to do all acts of a certain nature. If he is of the former kind, then any contract wliicli he makes can only bind his master when strictly in conformity with his master's orders ; but if he is of the latter kind, then any contract he makes will bind his master, even though it goes beyond his master's orders in the par- ticular case, if it is within the scope of his ordinary authority. To exemplify this by an instance : If a (c) Ba>/ley v. Rimmell, 1 M. & W. 506. (d) Becston v. Coll;/er, 4 Bing. 309. See as to contracts not to be per- formed within a year, ante, pp. 43, 44. (e) See ante, ]). 101. ANY DISABILITY OF THE CONTRACTING PARTIES, 163 master simply once directs his servant to go to a shop and purchase certain goods, giving him the money to pay for them, and the servant misapplies the money, and gets the goods on credit, here the master will not be liable to pay for them, for the servant was but a special agent, and it was the duty of the shopkeeper to inquire into the extent of his authority, and the getting of the goods on credit was beyond his authority ; but if the master is in the habit of sending his servant to buy goods on credit, though in this instance he gives him the money to pay for them, and, instead of paying, the servant misapplies the money and gets them on credit, the master will be liable to pay for them, because the servant was a general agent, and his act comes within the scope of his ordinary authority. A master is liable for his servant's torts when com- As to torts mitted by the servant acting in the course of his ordi- a^sCTvant'^ ^^' nary employment and duty, but he is not liable crimi-'^t/^^*^^;'*;'^^ /*. <»u «t^<4«. nally for his servant's unauthorized act (/). &!^ji^ ^■'i;,;;:^X^ ^ "^'^^ A servant is entitled to be paid wages during a time Servant he was disabled from service by illness (a), and the re-^^*',^^'^'^ *° '"^ . •' V ^ / ' paid wages lation between an ordinary master and servant (it is though dis- otherwise as to an apprentice), does not make it obliga- tem'^ora™"^^ tory on a master to provide medical attendance or illness. medicines for his servant ; but if he sends for a medical Master not practitioner for his servant whilst under his roof, he is ^"i'"'^ to pro- Til 11 IIP 1 , ^ ik3 ^,jjg medical liable, and he cannot deduct from the servant's wages attendance for any expenses incurred thereby, unless it was specially '"^ ^^'■^"^'^• so agreed (Ji). There is no implied contract by a master to in- Master not bound to indemnify (0 See hereon, post, part 2, ch. 1, p. 241. servant against Ig) Cuksoa V. Stones, 1 E. & E. 248. injuries (/») See Chitty on Contracts, 537 ; and the principle that a master is not bound to provide medical attendance or medicines for his servant is the same, even although the servant's illness has arisen through an accident incurred in performing his duties as servant, unless indeed it arose in such a way that the master could be held liable for it. M 2 164 OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF demuify his servant against any injnry happening in the course of his employment, or even not to expose his servant to any extraordinary risks (^) ; but there is a duty cast on him to make use of proper tackle and machinery in his business, and to employ duly com- petent co-servants, and if any injury arises to the servant through the non-observance of this duty, the master will be liable (Jc). As to the Thirdly, as to the determination of the service. — The determination general way in which this happens, is by notice either by the master or the servant, the length of which notice varies according to the contract for hiring or the nature of the service (I). When master In giving the noticc, it is not necessary to allege any servanrwfth^-*^ rcason for it ; and in the following cases the master out notice. will be justified in putting an end to the contract of service without any notice : — 1. When the servant unlawfully absents himself from his work. 2. If he proves to be incompetent to perform any particular service which he has agreed to render. 3. If he refuses or neglects to obey his master's rea- sonable orders ; and 4. If he is guilty of any gross moral misconduct, or of habitual neglect in the performance of his duties. And in these cases the servant will only be entitled to wages already accrued due, so that if his wages are (j) liUey V. Bazendale, 6 H. & N. 445. (/;) Wilson V. Merry, L. R. 1 Scotch App. 326 ; see post, p. 334. (/) Ante, pp. 161, i62. ANY DISABILITY OF THE CONTRACTING PARTIES. 165 payable monthly, and he is discharged in the middle of AaiyG\ Je*^/**^ Tcd^ a month, he forfeits his rightjo such wag:es (m), ) See hereon, Chitty on Contracts, 152-154. The subject of married women's projierty and the position of married women as to separate estate, &c., belongs to conveyancing and equity, and the student is referred to Williams on Real Property, and Snell's Princi])les of Equity, and to the Married Women's Property Act, 1870. UNDER SOME DISABILITY. 173 the rule was absolute that he was liable for all his wife's contracts and debts entered into and contracted by her before marriage, whether he had any property with her or not, but this liability ended with her death unless he took out administration to her choses in action, when he would still be liable as administrator to the extent of the assets (q), but the rule has now been very materially altered, as is next stated. By the Married Women's Property Act, 1870 (r), it Married is provided that " a husband shall not by reason of any ^.o'^e^^ marriage which shall take place after this Act has come Act, i870, into operation (s), be liable for the debts of his wife ^^°' ^^' contracted before marriage, but the wife shall be liable to be sued for, and any property belonging to her for her separate use shall be liable to satisfy such debts as if she had continued unmarried." But a very short trial of this provision shewed that injustice as it stood it was too extensive, for it made a possible Sirsectfon. manifest injustice. It provided that the husband should never be liable ; but yet in many cases the husband might have property through his wife, and it not being to the wife's separate use, the creditor had no hold on it. Supposing a woman possessed of £1000, no separate estate, and owing several debts, married, the consequence under this provision would be that the husband would take the £1000 by the act of marriage, and through him the wife would reap the benefit of it, and yet the creditors would not have any claim against either, though manifestly they ought to be paid out of the £1000. It will be noticed, however, that this pro- vision did not api^ly to the liability of the husband where the marriage had taken place prior to the coming into operation of the Act. (q) Chitty on Contracts, 154. (>') 33 & 34 Vict. c. 93, s. 12. (s) 9th of August, 1870. 174 OF CONTRACTS WITH PERSONS Sec. 2. Married The iiijustico of tlic provisioii in the Married Women's Pro^eHv Act Pi'operty Act, 1870, has, however, now been remedied, Anieadnient for, by the Married Women's Property ActAmendment ' ' "' ■ Act, 1874 (t), it has been provided that "so much of tTie Married Women's Property Act, 1870, as enacts that a husband shall not be liable for the debts of his wife contracted before marriage is repealed, so far as respects marriages which shall take place after the passing of this Act (u) ; and a husband and wife mar- ried after the passing of this Act may be jointly sued for any such debt " (x) ; but " the husband shall in such action and in any action brought for damages sustained by reason of any tort committed by the wife before marriage, or by reason of the breach of any contract made by the wife before marriage, be liable for the debt or damages respectively to the extent only of the assets hereinafter specified ; and, in addition to any other plea or pleas, may plead that he is not liable to pay the debt or damages in respect of any such assets as hereinafter specified ; or confessing his liability to some amount, that he is not liable beyond what he con- fesses ; and if no such plea is pleaded, the husband shall be deemed to have confessed his liability so far as assets are concerned" (y). The assets to the extent of which the husband is to be liable are substantially any which husband assots he may have by or through his wife, but they ^note(z) ^*^^ ^^"^ specified in the Act, and are set out below (z) ; and if As to the assets to the extent of (0 37 & 38 Vict. c. 50. (m) 30th July, 1874. (x) Sec. 1. (y) Sec. 2. (z) " 1. The value of the personal estate in possession df the wife which shall have vested in the husband. " 2. The value of tiie choses in action of the wife whic'h the husband shall have reduced into possession, or which with reasonable diligence he might have reduced into possession. " 3. The value of the chattels real of the wife, which shall have vested in the husband and wife. " 4. The value of the vents and profits of the real estate of the wife which the husband shall have received, or with reasonable diligence niigiit have received. " ."'. The value of the husband's estate or interest in any property, real or jjcrsonal, which the wife in contemplation of her UNDER SOME DISABILITY, l?') the husband, after marriage, pays any debt of his wife, or has a bond fide judgment recovered against him for i any such debt, then such payment or judgment goes to reduce the amount of assets which he had with his . wife, and the extent of his liability (a). The Act also goes on to provide that, " if it is not Sec. 3. found in such action that the husband is liable in respect of any such assets, he shall have judgment for ' his costs of defence, whatever the result of the action may be against the wife " (h) ; and that " when a hus- Sec. 4. band and wife are sued jointly, if by confession or otherwise it appears that the husband is liable for the debt or damages recovered, or any part thereof, the judgment to the extent of the amount for which the husband is liable shall be a joint judgment against the husband and wife ; and as to the residue (if any) of such debt or damages, the judgment shall be a separate judgment against the wife " (c). It will be noticed that the provisions of this Act do not apply to marriages that took place prior to its passing. Any question, therefore, as to the liability of the Summary as husband for his wife's ante-nuptial debts must depend *" I'-T-bii'ty of , ^ J- husband for on the date of the marriage : if it took place before the wife's ante- 9th_of_Augu^t, 1870, he is liable for them all ; if after °"P"^' '^'^^*^- that date, and before the 30th of July, 1874, he is not under any liability in respect of them; and if since that date, he is liable to the extent of the assets which he has with or through his wife. marriage with him shall have transferred to him, or to any ♦ other person. s " 6. The value of any property, real or personal, which the wife in j contemplation of her marriage with the husband shall w ith I his consent have transferred to any jierson with the view of | defeating or delaying her existing creditors," sec. 5. I (a) Sec. 5. (b) Sec. 3. (c) Sec. 4. 176 OF CONTRACTS WITH PERSONS As to contracts Secoudh/, as to contvacts made after marriage and cohabUation. duving Cohabitation. Marriage produces a general dis- ability on the part of the wife to contract, so that no contract that she may make will be binding on her, and any advantage she may acquire vests in her husband. But some contracts of a married woman may bind her separate estate in equity {d) ; and, besides this, there Cases in which are several exceptions to the rule, which are chiefly as a married r. ii woman is in lOliOWS : the position of 1. "Where the husband is banished, or transported, or suffering sentence of penal servitude, the wife can contract, sue or be sued, as if she were a feme sole. 2. "Where the husband has not been heard of for a period of seven years, she may also do so, as he is then presumed to be dead (e). 3. "Where a judicial separation has been obtained under the Divorce Act she may also do so (/). 4. Under the Divorce Act (g) a married woman may obtain an order, called a protection order, when she has been deserted by her husband, protecting her earnings or property acquired since desertion from her husband and persons claiming under him. Such order may be obtained from the Divorce Division of the High Court of Justice, or from a police magistrate, or justices in petty session ; but if from cither of the latter, the order has afterwards to bo registered within ten days from the making with the registrar of the county court within whose jurisdiction the wife is resident. (d) See Hulme v. Tenant, 1 White and Tudor's Leading Cases in Equity, 481. (e) See Nepean v. Doe, 2 S. L. C. 510; 2 M. & W. 894. (/) 20 & 21 Vict. c. 8.5, s. 25. Of course if an actual divorce takes place the woman is again a. feme sole. (,/) 20 & 21 Vict. c. S.^, s. 21. UNDER SOME DISABILITY. 177 5. By the Married Women's Property Act, 1870 (A), the following property is to be thereafter to the separate use of a married woman, viz., her wages and earnings acquired in any occupation carried on separately from her husband ; any deposit made by her in her name in a saving's bank ; any sum of £20 or upwards in the public stocks transferred into her name ; any fully paid- up shares in companies and other institutions to which no liability is attached transferred to her name ; any personal property coming to her as a next of kin under an intestacy; any sum, not exceeding £200, coming to her under a deed or will ; the rents and profits of any freehold, copyhold, or customary property descending to her ; and any policy on her own or her husband's life expressed to be to her separate use (i). It has been decided that a married woman cannot be Married woman made a bankrupt in respect of a debt for which she is made bankrupt liable unless she has a separate estate Uc). if she has separate estate. A married woman usually sues either together with her husband, or by her next friend ; but under the Judicature Act, 1875, a married woman may, by the leave of the Court or a judge, sue or defend without her husband and without a next friend, on giving such security (if any) for costs as the court or a judge may require (l). The question of the power of a wife living with The wife's her husband to bind him is one of great importance, bh^ung the The earliest leading case constantly referred to upon husband. the subject is that of Manhy v. Scott (m), which may be ManhyY. Scott. taken as laying down the broad principle that a wife's contract does not bind the husband, unless she act by {h) 33 & 34 Vict. c. 93. (0 Sees. 1-5, 7, 10. (A) Ex parte Holland, In re Jleneage, L. R. 9 Ch. App. 307. (0 38 & 39 Vict. c. 77, Order xvi. r. 8. (//() 2 S. L. C. 429 ; 1 Levintz, 4. N 178 OF CONTRACTS WITH PERSONS ^■''i.^ Montague v. Benedict. his authority. The wife, therefore, may be said to generally stand in the position of an agent, but to some extent as an agent of a peculiar kind ; for the general rule is that, apart from any special power or authority that may be given her, from her very position of living as a wife (n), she. is presumed to be invested with an authority to bind him for necessaries suitable to his rank and condition (o) ; but (as was decided in the case of Montague v. Benedict (p)) this does not extend to anything beyond actual necessaries, for as to I anything beyond this to bind the husband some evi- dence of his assent must always be shewn. This case of Montague v. Benedict may be usefully noticed by the student upon two points : firstly, as deciding what is just stated ; secondly, as furnishing an instance of what will and what will not be deemed necessaries, it there having been held that the husband being a certificated special pleader, and living in a house at the rent of £200 a year, and keeping no man-servant, articles of jewellery to the amount of £83 supplied to the wife in the course of two months were not neces- saries. As, however, has been noted in the case of infants {q), what are and what are not necessaries must always depend on the circumstances of each particular case. Sealon v. Benedict. And a husband is not in all cases absolutely liable for necessaries, for as the power of a wife to bind her husband for them only arises from his presumed autho- rity to her, such authority is liable to be rebutted by the fact that she was fully supplied by her husband 'with all necessary articles. This is shewn by the well-known case of Seaton v. Benedict (r), and some (n) And this principle applies to a woman living with a man as his wife, though not actually married, and even although the tradesman knows she is not married : Watson v. Threkeld, 2 Esp. 637. (c) Etherin'jlon v. I'arrott, Lord Raym. 1006. (p) 2 S. L.' C. 467 ; 3 B. & C. 673." (7) Ante, p. 168. (r) 2 .S. L. C. 475 ; 5 Bing. 28. UNDER SOME DISABILrTY. 179 of the remarks of Chief Justice Best in that case, as illustrative of the subject, may be well quoted. He says: "A husband is only liable for debts contracted by his wife on the assumption that she acts as his agent. If he omits to furnish her with necessaries, he makes her impliedly his agent to purchase them. If i he supplies her properly, she is not his agent for the purchase of an article unless he sees her wear it without disapprobation (s). ... It may be hard on a fashionable milliner that she is precluded from supplying a lady without previous inquiry into her authority. The Court, however, cannot enter into these little delicacies, but must lay down a law that shall protect the husband from the extravagance of his wife " (;!). It was formerly considered that when a husband and Eftect of wife were living together, provided she was not fully fo"bi']jiu(^ 1^;^ supplied with necessaries, she must always have power wife to to bind the husband for them, and that no private necessaries, or agreement between the parties would deprive her of agreement to this power, but it must be communicated to the trades- man (w). But this is not now law, the somewhat recent case of Jdlij v. Bee s [w) clearly deciding that any joiiy v. Rees. JaxUm Vj^ agreement between the husband and wife, or the fact tu*xjXw***Kij;^^i ' of the husband forbidding the wife to pledge his credit, r-'^'''^^^C[J'V^^<^Mi though not communicated to the tradesman, will be a ^-SiuUJ^^J^.^/So)L, bar to any action against the husband ; and the Court, in giving judgment in that case, said, " although there is a presumption that a woman living with a man, and represented by him to be his wife, has his authority to bind him by her contract for articles suitable to that station which he permits her to assume, still this pre- sumption is always open to be rebutted." This decision Explanation may at first sight seem somewhat to militate against °^ ^^^. ^^^\' •' " " mentioned (s) This would of course amount to au authority by subsequent ratifica- tion. (0 2 S. L. C. 478. (m) See Johnston v. Sumner, 3 H. & N. 261. (u.) 15 C. ?>. (N.S.) 628. K 2 180 OF CONTRACTS WITH PERSONS the principles of general agency before explained (a-), that a principal is liable for all acts of his general agent coming within the scoj)e of his ordinary autho- rity, although done contrary to the principal's direc- tions, if they were not known to the contra ctee ; but the reason of the decision seems to be that the wife does not actually stand in the position of general I agesnt for her husband, but is only 'presumed to do so, and that that presumption is always liable to be rebutted. Correct nnswer To Summarise the foregoing remarks, the answer to !.f what" on-*^" *^^ quostion of what contracts of a wife, who is living tn-.cts by a with her husband, will bind him, may be stated as woman livin? follows : — All hcr coutracts entered into with his ex- with her prcss or implied authority will bind him, and his autho- bimi liTm?' ^'i^y ^ill ^^ implied for necessaries, but only for neces- saries {y) ; and this implied authority is liable to be rebutted by shewing that she is already fully supplied with necessaries (2), or that the husband has forbidden her to pledge his credit, or they have so agreed between them, even although unknown to the tradesman (a). As to contracts Thirdly, as io contracts made after marriage, tut made during ^r/^^'/s^ {lie parties are livinq separate and apart from each separation. ■'■ . n tw i • i> ■> other. — The separation makes no dmerence on the wife s I general incapacity to contract, so as to bind herself, and the observations previously made hereon, under the ' second division of this subject, apply equally here Qj) ; but the wife's power to bind her husband stands on a totally different footing, for in the case of husband and wife living together, we have seen that, from their so living together, the presumption is that the husband is liable for necessaries ; but here there is no such presump- {x) Ante, pp. 101, 102. ()/) Montaijue v, Benedict, ante, p. 178. («) Beaton v. Benedict, ante, p. 178. (a) Jollij V. Bees, ante, p. 179. {',) Ant.;. ]i. 17(i. UNDER SOME DISABILITY. 181 tion, and it is always incumbent on a creditor seeking to charge the husband, to shew that the wife, from the circumstances of the separation, has such an implied authority (c). The wife's power, therefore, to bind The wife's her husband by her contracts, depends on the way in jier hu^ban'a'^ which the separation occurs, which may be either by iiepends on the mutual consent, by the fault of the husband, or by the thTseparatiou fault of the wife. occurs. Where the separation is by mutual consent, the rule Where separa- is, that the wife has an implierauthority to bind her eoTseSTus-'^ husband for necessaries, unless she have an adequate band will be allowance for maintenance, but if she has such an wUe*haTaT adequate allowance, and it is duly paid to her, then her adequate implied authority is gone {d). With regard to the malnteaance! fJzJA i, allowance for maintenance, the student will observe ly ^ If a husband, by his conduct, renders it necessary Husband is for his wife to protect herself, by applyinsr for him to ^''^'^^'^ ^°^' *^^ costs of "XIIV be bound over to keep the peace, the costs of such ap- proceeding plication will always fall on the husband, and he will i^nJeied neces- be liable to an action by the solicitor who has incurred conduct. such costs (n). And the same rule will, also, generally speaking, apply as to the costs of other proceedings rendered necessary by his conduct, e.(/., the costs of the institution of an action for divorce, or for judicial separation, or the costs of necessary advice taken by the wife (o). It has before been pointed out, in considering the Efiect of con- subiect of agency, that if a married woman havinsr Y^^^ ^^ ^'^.^ o CI -J ' o for necessaries, her husband being dead, (n) Turner v. Roohes, 10 A. & E. 47. though not (o) Brown V. Ackroi/d, 5 E. & B. 819 ; Wils.n v. Ford, L. R. 3 Ex. 63. known to be The case of In re Hooper, 33 L. J. (Ch.) 300, does not clash against the by her. general rule stated in the text, the reason of the husband being there held I not liable being that there was no reasonable foundation for the wife's proceedings, but in so far as any observations in that case tend to decide that to render the husband liable for the costs of any proceedings they must have resulted in actual success, it is submitted that it is clearly not law, and that it is sufficient that there was a reasonable ground fur such proceedings. And see hereon 2 S. L. C. 496, 497. 18-1 OF CONTRACTS WITH PERSONS power to bind her husband for necessaries, contracts for such necessaries after his death, but before she could possibly have known thereof, no liability therefor attaches either to her husband's estate or to herself personally (j)). III. Persons Persons of unsound mind may be either idiots or mind*'^"'^ ' lunatics. By the designation idiot, is meant a person who has never from his birth upwards had any glim- mering of reason ; whilst a lunatic " is one who hath had understanding, but by disease, grief, or other acci- dent, hath lost the use of his reason " (q). However, with regard to these two classes of non-sane persons no person is now found an idiot, the inquiry as to the com- mencement of the insanity not being carried back to the birth (r) ; but at the same time, although this is so, yet, if the facts of any case bring the person within the description before given of an idiot, he is an idiot and not a lunatic. It was formerly considered that a person could not set up as a defence to an action on a contract that he was of unsound mind when it was entered into, but this A person non *^ ^^ longer law (s). But, although unsoundness of compos mentis ^ mind may be set up, yet it must not be thought that it Habkfor ^ "^ill form an answer to every action that may possibly necessaries, y^Q brought, for it lias been decided, firstly, that a per- , son of unsound mind is liable for all necessaries suitable to his state and condition in life," provided no advan- And also tage has been taken of his mental incapacity {t) ; and, sometimes ^ sccoudly, tliut cvcn although the contract may not be _^(fc executed •' for ncccssarics, yet, if the other party to it had no contract. noticc of the person's want of mental capacity, and the (/>) See ante, p. 103, and case of Sinout v. lUxrrj, 10 M. & W. there re- ferred to. (V) 1 Bl. Ccm. 304. (r) See hereon, Phillips on Lunacy, 224. (s) Chitty on Contracts, 133. It) uSelfion V. Uuncoinhe, 9 Beav. 211; Baxter v. Earl of Portsmouth, 5 B. & 0. 170. UNDER SOME DISABILITY. 185 contract was bond fide, and is executed, unsoundness of mind will be no defence (w). This latter principle has been well stated as follows : " When a person apjm- renthj of sound 7nind, and not known to he otherwise, enters into a contract for the purchase of property which is fair and bond fide, and which is executed and comj)leted, and the property, the subject-matter of the contract, has been paid for and fully enjoyed, and cannot be restored, so as to put the parties in statu quo, such contract cannot afterwards be set aside either by the alleged lunatic or those who represent him " {x). It would seem that if a contract is of an executory But not upon nature, a person of unsound mind is not liable on it so contract whilst long as it remains executory, but if for necessaries, and it remains any part of it is executed, then he is liable on such ^^^'^^^ °^^' executed part; if not for necessaries, then he will only be liable provided it became executed before the other party to it knew of his want of mental capacity. Any acts done by a lunatic during a lucid interval Acts done are perfectly valid (^). loSi^'' gooJ. Although a person may not be strictly of unsound mind, yet if he is of weak capacity, though this by it- self would be, generally, no ground of defence to his contract, yet it may afford evidence of undue influence, misplaced confidence, or imposition, so as to render the act a constructive fraud (z). In the same way that a person cannot generally (a) iv. intoxi- cated person. (u) Nicll V. Morlcy, 9 Ves. 478. (x) See judgment in case of Molton v. C'amroux, 2 Ex. 503. ly) Chitty, 136. (?) As to Constructive Frauds, see Snell, p. 398, et seq. (a) The word " generally " is used here, because in crimes in which it is necessary to shew malice — e.ij. murder — drunkenness may sometimes be 1 shewn as evidence to rebut the existence of malice. 186 OF CONTRACTS WITH PERSONS Intoxication only a defence if the person did not know what he was doinir. V. Persons under duress. VI. AlienF. shield himself from the consequences of his criminal act by showing that he was drunk at the time, it was formerly held that he could not be allowed to set up his intoxication as a defence to an action upon a con- tract made by him. However, the law now is, that if a person is in such a state of intoxication as not to know what he is doing, so that, indeed, his reason is for the time being destroyed, he cannot be said to have any agreeing mind, and his contract, made whilst he is in such a state, cannot be enforced, unless he after- wards when sober ratifies it, which he may do, for it is only voidable and not absolutely void. And intoxica- tion can never be any defence to an action for things actually supplied for the person's preservation (b). A person is said to be under duress when he is sub- jected to great terror or violence, e.g., if his person is wrongfully detained, or legally detained and excessive and unnecessary violence used, or if he is threatened with loss of life or serious injury. Any contract made by a person who is under duress is, as regards him, void, and cannot be enforced against him. And though a contract may be entered into under circumstances that would not at common law constitute duress, yet such circumstances may possibly amount to construc- tive fraud, so as to afford ground for an application to the Chancery Division of the High Court of Justice to set it aside, or form a defence to any action on such contract (c). An alien may be defined as a subject of a foreign state, and may be an alien ami, that is, a subject of a friendly state, or an alien enemy, that is, a subject of a state at enmity with ours. Contracts with aliens may bo considered as of two classes : — (6) See hereon, Chitty on Contracts, 136, 137. (c) As to Constructive Frauds, see Snell's Principles of Eijuity, 398, ctscq. UNDER SOME DISABILITY. 187 1. Their contracts as to pure personal property ; and 2. Their contracts as to land and property, of that nature. Firstly, then, as to the former. By the Act to amend Their contracts the law relatini^ to aliens (d) it wa's enacted that they '"' *'^, P"''*^ Pf" -.'-' ^^ •' sonal property. might hold by purchase, gift, bequest or presentation, or otherwise, every kind of personal property, except chattels real, as fully and effectually, to all intents and purposes, and with the same rights, remedies, exemp- tions, privileges and capacities, as if they were natural- born subjects of the United Kingdom (e). But with regard to the contracts of aliens, on the ground of public policy and expediency, though an alien ami might contract and sue, yet the contract of an alien enemy was absolutely void ; and even with regard to the contract of an alien ami, if after the contract war ' broke out, so that he thus became an alien enemy, his remedy here was suspended until the war ceased, and he again became an alien ami (/). The^Naturalization Naturalization Act, 1870 (g), now also provides that real and personal ^^^' ^^^*^" property of every description may be taken, acquired, held, and disposed of, by an alien in the same manner in all respects as by a natural-born British subject ; and that a title to real and personal property of every description may be derived through, from, or in succession to an alien, in the same manner in all respects as through a British subject (Ii), provided that this shall not qualify an alien for any office, or for any | municipal, parliamentary, or other franchise («'), nor shall it qualify him to be the owner of a British ship (k). (c?) 7 & 8 Vict. c. 66. (e) Sec. 4. (/) See Chitty on Contracts, 178. ( 1 p armies for act beiore the happening oi the future day expressly doing the act. states that he will not do the act when the future day arrives, or renders himself before the day incapable ofi doing the act, the remedy may be taken against him at 190 OF THE LIABILITY ON CONTRACTS. ffiichstcr V, De la Tour. Frost V. Kniijht. once, thongli the time for performance has not actually arrived (r). This is well shown by the case of Uochster V. De la Tour (cited below). In that case there was an agreement to employ the plaintiff as a courier from a day subsequent to the date of the writ, and before the time for the commencement of the employment the defendant refused to perform the agreement, and dis- charged the plaintiff from performing it, and he at once commenced his action for breach of this contract. It was objected that he could not sue until the future day arrived, but it was held that he might do so, and the principle before stated was laid down. Again, in the case of Frost v. Knight (also cited below), the defendant had promised to marry the plaintiff on the death of his father ; and he had afterwards, during his father's life, announced his absolute determination never to fulfil the promise, and it was held that the plaintiff might at once regard the contract as broken in all its obligations and consequences, and sue thereon. performed his part of it. Cutter w Pu'rcll. To entitle a Where a special contract is entered into by a person, person to sue ^.^ entitle him to his remedy against the other party to he must have lit, it is Very neccssary that he himself sho'ald strictly ' carry out on his part the stipulations of the contract. Thus, where the agreement was to pay a man a certain sum provided he proceeded, continued, and did his duty as mate of a ship during a certain voyage, and he died during the voyage, it was held that his repre- sentatives could not recover, for the contract had not been strictly carried out by the deceased, and therefore no right of suing had accrued (s). But although, where there is a special contract, the remedy must be on that special contract, and therefore there can gene- rally be no remedy when the person suing has not himself performed its stipulations, yet if the special (r) Uochster v. De la Tour, 2 El. & Bl. G78 ; Frost v. Knight, L. R. 7 Ex. 111. (s) Cutter V. I'oxKcll, 2 S. L. C. 1 ; G T. K. 320 ; see also IMle v. Jlcujht- man, 2 East, 145. OF THE LIABILITY ON CONTRACTS. IDI contract has been abandoned or rescinded by the parties, then an action will lie for what has been done by the person suing on a quantum meruit (t) ; and it may be But when stated, as a correct general rule, that where there is a contract has 'special contract not under seal, and one of the parties been rescinded I „ , p 1 »-- -,■-. - p .. ^ 1 ■ 1/. or abandoned refuses to perform his part of it, or renders himself ^^^.jj„q ^lay he absolutely unable to do so, it is open to the other party brought on a to at once rescind such special contract, and immedi- meruit. ately sue on a quantum meruit for whatever he has done under the contract previously (w). But to entitle a What refusal person so to rescind a special contract on the ground T^-tyTo V ^ of the refusal of the other party to perform it, such contract in refusal must be absolute and unqualified, and a mere ° conditional refusal will not be sufficient {x}. The liability of a person upon a contract may be put How the di •,! liabilitv on a to either— contract may be put an IT-w • 1 p end to. . JBy its performance ; or, 2. By showing some excuse for its non-performance. Firstly, as to the performance of contracts. Con- i- Performance tracts may be and are of the most varied nature, and*' con lac s. they must be carried out according to the stipulations | in each particular case, attention being paid always to] the ordinary and well-known rules of construction, I e.g., that the intention of the parties shall be observed,-^ that the construction shall be liberal, and, failing all other rules of construction, that the contract shall ; be taken most strongly against the grantor or con- tractor (y). The most practically useful points to con- sider under this head appear to be Payment, Tender, and Accord and Satisfaction. (f) That is to say, for as much as it is worth, see Brown's Law Diet. 297. {u) Planchex. Colhurn, 8 Bing. 14 ; Withers v. Eei/nolds, 2 B. & Ad. 882. (.r) See Lines v. Eees, cited 2 S. L. C. 35. {y) For rules of construction, see ante, pp. 21-26. lOi OF THE LIABILITY ON CONTRACTS. ]. r;iymunt. Payment has been defined as the normal mode of discharging any obligation (z), and payment by a person liable on a contract to the other party to it of the amount which is actually agreed on between them to be payable in respect of the contract naturally puts an end to it and furnishes a complete performance. But a payment made under a contract to amount to per- formance must be actually made by the party, or some raymcnt by ouc ou his behalf, and if made by some third person a third person voluntarily it amounts to no performance, and does not voluntarily not ** . ... a performance destroy the Contracting party's liability, unless after- Tird^s rlufied "^^i'*^^^ ratified and accepted by him as his act (a). But and accepted, this, of coursc, is Only whcrc the payment is made voluntarily ; if made — as by a surety — in pursuance of a legal obligation, then the contract is performed as far as the original liability is concerned, and a new performance is necessary, viz., the repayment to the surety (b). p,iyment must It is, of course, also neccssary, to make the payment be m.-ide to the ^ performance of the contract, that it should be actually creditor or J- ^ . _ — _ ^ a i)erson made to the person, or one having authority from him, b^^him'^^'^ either as a particular or a general agent, to receive it. I'ayment to Payment in an action to the plaintiff"s solicitor is a solicitor in equivalent to payment to the plaintiff: but it seems an action ^ ^ -^ ,,...,,.. sufficient, payment to the agent of the plaintiffs solicitor does not so operate (c). "Where there are several sums of money due from one person to another at different times, and the party liable to pay makes a payment, but not sufficient to discharge his liability in respect of the whole of the debt, the ques- tion arises, in respect of which matter is it to operate as n (?) Brown's Law Diet. 270. (a) See Simpson v. Efjgiwjton, 10 Ex. 845. (Jj) As to .Sureties, sec ante, pp. 40-42. (c) Yates v. Frecklcton, 2 Doug. 625. OF THE LIABILITY ON CONTRACTS. 193 a performance or part performance ? The answer to this Rule as to question is known as the rule as to the appropriation o|- p!jy^ents.^ of_payments, and is, that the party liable to perform- ance, i.e., the debtor, has the right in the first instance to declare in respect of which contract or debt the pay- ment is made ; failing his doing so, the person entitled to performance, i.e., the creditor, has such right ; and failing either doing so, then the law considers the payment to be in respect of the contract or debt which is the earliest in point of date, commencing with the liquidation of any interest that may be due (d). And where, under this rule, the creditor has the right of appropriating the money, he may appropriate it to a I debt barred by the Statute of Limitations (e). Where a payment is made to a person to whom two or more debts are due of a sum not sufiicient to satisfy all, and the debts are owing in respect of contracts of the same ' date, the amount paid, unless expressly appropriated by one of the parties, will be apportioned between the different debts (/). Where the performance that is required by a con- a smaller tract is the payment of a fixed sum of money, it is no sui" cannot be ^ '' ''a. satisiaction sufiicient performance to pay a smaller sum, eveniof a greater, though the parties expressly so agree, and the party io\ Cumber\ Tr25!sr~* ■/ whom the payment is made gives a receipt expressly! stating that it is received in full discharge {g), the reason being that there is no consideration for the smaller sum being received in satisfaction of the greater ; and as an ordinary simple contract requires a consideration to support it (Ji), so here there must be some consideration [ for the giving up of the balance. But if something is But some- given in the performance of an obligation of a different *^'°g different, ^ r & though of less value, may be a satisfaction. (d) Clayton's Case, in Devaynes v. Noble, 1 Mer. 585 ; Tudor's Mercantile Cases, 1, and notes thereto. ((?) Mills V. Fowkes, 5 Bing. (N.C.) 455. (/) Favenc v. Bennett, 11 East, 36. ((/) Cuinber v. Wane, 1 S. L. C. 341 ; 1 Strange, 436 ; Fitch v. Sutton, 5 East, 230. (A) See ante, pp. 27, 31. O 194 OF THE LIABILITY ON CONTRACTS. nature, there may be a complete performance, thongli of less value ; thus, a horse may be given in satisfaction of a debt, though of much less value than such debt ; L^^%*U, '^^'i i^ ^^^ ^<^6^ expressly decided that a negotiable ■ security may operate, if so given and taken, in satis- faction of a debt of greater amount (i) ; and where there is any doubt or disagreement on the amount of a debt, and in all cases of unliquidated demands, the rule that a smaller sum cannot satisfy a greater does not apply, nor does it, if the time for payment is accelerated, or any other advantage given to the payee, for in such cases there is a consideration, in the one case the settlement of doubts, and in the other the obtaining the money before it would be otherwise paid (/i). A smaller sum A Smaller sum may, however, be paid in satisfaction el-elter"if a ^ ^^ ^ greater if the receipt is under seal, for this would receipt umier be a deed, which, as we have seen, requires no conside- orora^com- I'atiou to support it, and operates also by way of position under estoppcl (?). And Under the Bankruptcy Act, 18G9 (mi), ruptcy Act, ^ majority of the creditors of any person assembled at 1869. meetings convened as therein mentioned, may by resolu- tion agree to accept a composition in satisfaction of their debts, which is to be binding on the other creditors, and the payment of which composition is to discharge the debtor. Performance Performance of a contract will in some cases be pro- of a contract j5umed until the contrary is shewn, e.^^., from lapse of may sometimes •' . '■ . be presumed, time ; and where there is money coming due from time to time, eg , rent, the production of a receipt for a pay- ment will be presumptive evidence that all rent that has become due before that date has been paid. But a (0 Sihree v. Iripp, 15 M. & W. 23. (/«) See notes to Cumber v. Wane, 1 S. L. C. 343, et seq. (0 Ante, pp. 11, 14. (m) 32 & 33 Vict. c. 71, s. 125. OF THE LIABILITY ON CONTRACTS. 195 receipt, even, for any particular sum is not conclusive evidence of payment of that sum, but the fact of the receipt may be controverted (n). Payment should strictly be made in money or bank Effect of notes, but if a cheque is given and received, that P'^y^'^n'^ '^y operates as payment unless and until dishonoured ; and if a cheque is given in payment, the payee is guilty of laches in not presenting it for payment within the pro- per time, and if in the meantime the banker fails, having assets of the customer in his hands, the person to whom the cheque was paid has no further claim for payment (o). Or by a So, also, a bill of exchange, or other nec;otiable security, ^'^s•*^'f'''^ ' ' ° ' . *^. "^ ' security. may operate as payment, and during its currency the remedy for recovering the debt is suspended (jj) ; but iX JiAjh b* LCJ. upon the dishonour of the instrument the original p " i ..oj lt; _a remedy revives unless it be then outstanding in the' / , r f -' # hands of a third person for value, in which case it does uw^ not (q). On the dishonour of a bill, note, or cheque, given in payment, the creditor may sue either for the original debt or on the instrument itself. If a creditor requests his debtor to make payment by Payment by transmission through the post, the creditor is safe in tjausmissiou , . , . ^ through the adopting that course, provided he properly addresses post, and sends the letter ; but unless there is such a request made, either expressly or impliedly, if the money is lost in transmission the debtor will have to pay it over again (r). When an action is brought to recover either a fixed sum Payment into or even unliquidated damages, and the defendant admits '"""^' his liability, either entirely or to a certain amount, he (n) Stretton v. Eastell, 2 T. R. 366. (o) See hereon, ante, pp. 136, 137. (/>) Per cur. Belshaw v. Bush, 11 C. B. 191 ; Simon v. Lloyd, 2 Cr. M. & K. 187. Ql) Puckford V. Maxwell, 6 T. R. 52 ; Price v. Price, 16 M. & W. 232. (r) See Chitty ou Contracts, 682. o 2 190 OF THE LLVBILITY ON CONTRACTS. can now immediately, or witli bis statement of defence, or subsequently by leave of tbe court or a judge, pay the amount that he admits into court (s). 2. Temler. By tender is meant the act of offering a sum of money in satisfaction of some claim ; if it is accepted it of course is payment, but if refused, it is simply a tender, and amounts to a performance as far as the debtor is able of himself to effect performance. The advisable course to be taken by a person on whom a claim is made of a pecuniary character, and reduced or reducible to a certainty, and who admits a liability but not to the full amount claimed, is to tender to the other person the amount which he admits, and it is therefore very important to properly understand what will be a valid tt-nder and how a valid tender may be made. What will A tender may be made either by the debtor or by vdid'toudei-. some one on his behalf, and may be made either to the creditor personally, or some one who has been duly authorized by him to receive the money (t), e. g., if a solicitor write for payment of a debt, tender may be made to him. The tender must be made of the actual ■ debt that is due, and nothing less than it, but tender of an amount in excess of the debt is a perfectly good tender (w), and the tender must be made before any action has been commenced for recovery of the sum claimed. If any action has been commenced before tender, the proper course was formerly to have taken out a summons to stay the action on payment of the roug . g^jj^Q^jj^. admitted, which operated in the nature of a tender from that time, so that if it was not acceded to, and the action was proceeded with, and the plaintiff Course to be taken where no tender made before («) Judicature Act, 1875, Order xxx. r. 1. As to the effect of payment into court, see post, Part 3, ch. 2, pp. 406-408. (t) Chitty on Contracts, 730. It may be noticed that tender by one of several joint creditors is good, operating as tender by all, see Douglas v. Patrick, 3 T. R. 683. (?<) Dean V. James, 4 B. & Ad. 54G. OF THE LIABILITY ON CONTRACTS. 197 did not recover a sum exceeding the amount named in the summons, all the subsequent costs were thrown on him. But now there is no need for any such summons, nor is any such summons allowed, the proper course i being for the defendant to at once pay into court the sum that he admits (x), and the plaintiff may take i that sum out of court in full satisfaction, or may j)ro- j ceed for the balance, but if he does not recover more i than was paid into court he will have to bear the costs ; subsequent to the payment in. In making a tender it is not sufficient for the debtor in makmg a to merely say he Vvall pay the money, or even that he j^^lJ^^y should has it with him ; there must be an actual production of i^e actually the money itself, unless indeed the creditor expressly '^'^°''^^'^*^ ' dispenses with the production of it at the time (?/). A Unless tiip good illustration of what will amount to dispensing peLes" with' its with the production of the money is found in the fol- production. lowing circumstances : The defendant said to the plaintiff, " I have eight guineas in my pocket, which I ^ have brought for the purpose of satisfying your demand ;" the plaintiff said he need not trouble him- •self by offering it as he should not accept it, where- | upon the money was not produced, and it was held that ' this was a sufficient tender (z). A tender must be absolute and unconditional, for if Tender must a tender is made with some condition annexed to it j^tjona*i°" that will prevent its being a valid tender; thus, for instance, in case a receipt is wanted, the proper course is for the debtor to bring a stamped receipt with him and ask the creditor to sign it and pay him the amount of the stamp (a) ; again, also, a sum offered if the creditor But a tender would accept it, in full discharge of a larger sum I^'^IH'"^''^ (x) Judicature Act, 1875, Order xxx. r. 1. (y) Tliomas v. Evans, 10 East, 101. («) Douglas v. Patrick, 3 T. R. 683, quoted in Chitty on Contracts, 734. (fl) Laimj v. Meader, 1 C. & P. 257. 198 OF THE LIABILITY ON CONTRACTS. claimed, has been held not to be a valid tender (b). It ' seems a tender under protest is geod (e). Ib what money ^ tender miist (excei^t as is presently mentioned) be be made. '^ made in money or bank notes. By 3 & 4 Wm. 4, c. 98 (d), it is provided tliat tender of Bank of England notes payable to bearer on demand shall be a valid tender for all sums above £5, except by the governor and company of the Bank of England, or any branch thereof. By 33 Vict. c. 10. 33 Vict. c. 10 (e), it is provided that a tender of money inTcoins which have been issued by the Mint in ac- cordance with the provisions of that Act shall be a legal tender — In the case of gold coins, for the payment of any amount ; In the case of silver coins, for the payment of any amount not exceeding 40s., but for no greater amount ; In the case of bronze coins, for the payment of an amount not exceeding Is., but for no greater amount. But nothing in this Act contained is to prevent any paper currency which under any Act is a legal tender from still being a legal tender. When country Notwithstanding that a tender should usually be cheqle-s are a actually in moucy or Bank of England notes, yet a good tender, tender of country notes, or of a draft or cheque on a banker, is valid if the creditor at the time raises no objection to the tender being made in that way. I'erson tender- Although a creditor rejects a tender that is made to ing must be ready to pay — the money at any time after- (/,) Evans v. Jud/dns, 4 Camp. loG. wards though (c) .Scott v. The Uxhridije Ibj. Co., 14 L. T. Ptcp. (N.S.) 596. the tender (d) Sec. 6. was refused. (g) Sec. 4. OF THE LIABILITY ON CONTRACTS. Vjd him by his debtor, yet he has afterwards a right to demand payment of the amount previously tendered, , which if refused will make the case as if no tender had been made (/) ; the reason of this being, that the A^ery principle of tender is that the person was then ready, and afterwards remains ready, to pay the amount tendered {(/). It only remains now to consider what is the effect of EtFect of a tender when it has been actually and properly made. ®'^^®^* It naturally does not put an end to the creditor's claim, for we have seen that the creditor has a right to come and demand the amount tendered, though he at first refused it ; the only efi'ect of it as a defence is, that if ' it is the fact that the amount tendered was the whole amount due, although interest may be payable, no subsequent interest can be recovered, and the debtor will be entitled to his costs of any action that may . subsequently be brought against him {h). On any action being brought, the proper course for the de- fendant to take is to set up the tender in his state- ment of defence, and pay the money into court. The effect of the defendant setting up tender as a defence will naturally be to admit the contract and a liability on it to the amount of the tender. Accord and satisfaction has been defined as " a 3. Accord and defence in law, consisting (as the name imports) of two ^^^^^ ^'^ ^^^' parts, viz., something given or done to the plaintiff by* the defendant as a satisfaction, and agreed to (or accorded) as such by the plaintiff " (i) ; it therefore amounts to a performance of a contract, though not in the original way agreed on, yet in some other way (/) The demand must be personal and not by letter: Edwards v. Tates, R. & M. 360. (g) Chitty on Contracts, 737. (/i) See Dixon v. Clark, 5 C. B. 365. (0 Brown's Law Diet. 7. See also the term "Accord and Satisfac- tion" explained, per Maule, J., in Gabriel v. Dresser, 15 C. B. 628. 200 OF THE LIABILITY ON CONTRACTS. afterwards agreed on, and furnishes an answer to any Consists of action on it (k). This mode of performance, as is stated two parts. -j^ ^l^g definition, consists of two parts, viz., (1) the accord, which is the agreement to do some act in lieu of the original act contracted to be done ; and (2) the satisfaction, which is the subsequent carrying out of such agreement ; and it also follows, from the definition, that accord without satisfaction, or satis- faction without accord, is not a complete defence to an action (l). An instance of what would amount to a perfect accord and satisfaction would be as follows : A. claims a sum from B., and it is agreed between them that B. shall give a bill of exchange for the amount, drawn by himself and accepted by C, and that, if duly met at maturity, he shall be exonerated from all further liability, and B. duly procures the bill and tenders it to A. (m). There the agreeing to give the bill is the accord, and the giving it or tendering it the satis- faction. The vaUie of Where there is an accord and satisfaction, the value the satisfaction q£ ^-^e Satisfaction cannot be inquired into, provided it cannot be ,..„ i/\ij_ j. m.iuired into, is showu that it IS of some value {n) ; but an agreement U Ll ci«j«a ^ll^iiuuJi^ to pay a smaller sum than some fixed liquidated amount 'uJp V" '^^IbLj^'^L^^^^' ^^^ *^® subsequent payment of such smaller sum, tCc^/jfMtfkJl^tit^jU' ^'^^^ ^°^ ^^^ ^^^ ^^^^ already stated in discussing Pay- L y ^-{uLl^X^^^^^^^ (^)^ operate as any satisfaction of such greater vf / t sum. If an accord and satisfaction has been brought about by means of any fraud, it will be set aside on appli- cation to the Chancery Division of the High Court of (^) See Blake's Case, 6 Reps. 43 b. (0 See Parker v. Eamsbottom, 3 B. & C. 257 ; Ilardman v. Bell/iouse, M. & W. 596. (m) See Curlewis v. Clarke, 18 L. J. (Ex.) 144. (n) Pinnel's Case, 5 Reps. 117 a; Curlewis v. Clarke, supra. (o) See ante, p. 193, and cases there cited. OF THE LIABILITY ON CONTRACTS. 201 Justice, in the same way that any contract induced by fraud may be set aside (p). Accord and satisfaction in respect of a liability under Accord and seal could not generally be made at law, but it would l^^^^ u'ndei- have operated as a defence in Chancery ; under the the Judicature Common Law Procedure Act, 1854 (q), this might, how- ^et upas a ever, have been set up as an equitable defence, and now, defence to a by the Judicature Act, 1873 (r), it is provided " that if seal. any defendant claims to be entitled to any relief upon ! any equitable ground against any deed, instrument, or ■ contract, or alleges any ground of equitable defence to any claim of the plaintiff, the court shall give to every equitahle defence so alleged such and the same effect by way of defence against the claim 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 purposes before the passing of the Act." Secondly, as to excuses for the non-performance ofii. Excuses for contracts ; and these may be various, both from the the non- •^ ' performance different natures of contracts themselves, and from the of contracts, circumstances that may arise in particular cases to justify a contracting party in not carrying out his contract. Of these excuses it will be most useful to consider the following, viz.. The Statutes of Limita- f tion, Set-off, Eelease, Bankruptcy or Liquidation, and Composition with Creditors, Incompetency of the Party, > and Fraud and Illegality. The Statutes of Limitation are certain statutes that i. statutes of have been passed for the purpose of establishing fixed Limitation. periods or limits after which actions cannot be brought, and claims, or the remedies whereby such claims might {p) Stewart v. Great Western By. Co., 2 De G. J. & S. 319. ((/) 17 & 18 Vict. c. 125, s. 83. (>•) 36 & 37 Vict. c. 66, s. 24. 202 OF THE LIABILITY ON CONTRACTS. liavc been enforced, are extinguislied and gone. There are several of these statutes, and different periods are fixed within which different actions must be brought (s). As to records To take_contracts by record and specialty first. It is st 4 Wm.''?' pi-ovided' by 3_^&J Wni. 4, c. 42, that all actions for c. 42. rent upon any indenture of demise, all actions of cove- nant or debt upon any bond or other specialty, and all actions of debt or scire facias upon any recognisance, shall in future be brought within twenty j^ears after the cause of such action or suit accrued, and not after (t) ; and if any person shall be an infant, feme covert, or non compos mentis, at the time of the cause of action accruing, then such person shall be at liberty to commence the same within such time after coming of full age, being discovert, or of sound memory, as other persons having no such impediment should have done (u) ; and that if any person or persons, against whom there shall be any such cause of action, is or are or shall be at the time of such cause of action accruing, beyond the seas, then the person or persons entitled to any such cause of action shall be at liberty to bring the same against such person or persons within such times as are before limited after the return of such person or persons from beyond the seas (x). It is also (s) The following are some of the chief periods of limitation : — For recovery of land .... 20 years. If there is any disability, then 20 years from it ceasing, and the extreme period not to exceed 40 years. But by the Real Property Limitations Act (37 & 38 Vict. c. 57), after that Act comes into force (which is 1st January, 1879), the j>eriod of time to recover any land or rent is to be 12 years, with a further period for disability, but the extreme period not to exceed 30 years. For recovery of a legacy ... 20 years. On a specialty contract . . . 20 years. On a simple contract .... 6 years. For libel 6 years. For assault 4 years. For false imprisonment ... 4 years. For slander 2 years. (0 Sec. 3. (?/) There was also by this statute a further period allowed in the case of the absence of the creditor beyond seas, but this is not so now. See 19 & 20 Vict. c. 97, s. 10. (x) Sec. 4. OF THE LIABILITY ON CONTRACTS. 203 provided that if there shall have been any acknowledg- ment of the debt in writing signed by the party liable or his agent, or any part payment or part satisfaction, then there shall be a like period of twenty years from such acknowledgment, part payment, or part satisfac- tion {y). To next take simple contracts We find that the sta- As to simple racts, ac. 1, c. 16. tutory provision as to them is of much earlier date, it contract being provided by 21 Jac. I, c. 16(2), that all actions of account and upon the case (which includes assumpsit, that is, actions upon ordinary simple contracts), and all actions of debt grounded upon any lending or contract without specialty, and all actions of debt for arrears of rent, shall be commenced and sued within six years next after the cause of action arises, and not after (a). The same statute (b) also provides that in case the person to whom any cause of action accrues shall be at the time an infant, feme covert, or non compos mentis, then such person shall be at liberty to commence the same within such time after coming of full age, being dis- covert, or of sane memory, as other persons having no such impediment should have done (c). By a subsequent statute {d), it has been provided that if any person or persons against whom there shall be any cause of action shall at the time of its accrual be beyond seas, then the person or persons entitled to any such cause of action shall be at liberty to bring the same against such person or persons within such time as before limited, after his or their return from (1/) 3 & 4 Wm. 4, c. 42, s. 5. («) Sec. 3. (a) This statute of 21 James 1, c. 16, contains an exception as to accounts in the trade of merchandise between merchant and merchant, but such exception no longer exists. See 19 & 20 Vict. c. 97, s. 9. (6) Sec. 7. (c) There was also by this statute a further period allowed in the case of the creditor beyond seas, but this is not so now. See 19 & 20 Vict, c. 97, s. 10. (d) 4 Anne, c. 16, s. 19. 204 OF THE LIABILITY ON CONTRACTS. Jioanino: of bcyond seas. On tlio meaning of tlie term " beyond " ^^y*^^'^ ^^^^" seas," it has been further provided (e\ that " no part , of the United Kingdom of Great Britain and Ireland, ! nor the ishxnds of Man, Guernsey, Jersey, Alderney, and Sark, nor any island adjacent to any of them, being part of the dominions of Her Majesty, shall be deemed to be beyond seas within the meaning of the said enactment." EiTectofone Where there are several joint debtors or other or some only persous jointly liable on a contract, some only of joint debtors \ whom are beyond seas, the Statutes of Limitation run being beyond ^gr^jj^g^ those that are here, notwithstanding the absence jbeyond seas of the other or others of them (/). The Statutes of Such, then, being the chief legislative enactments as Limitation as ^^ ^|^g limitation of actions on contracts, it follows that to contracts only bar the if the periods allowed go by, generally speaking there tT^'^f'ht"''* ^^ ^° further remedy on the contract ; and it should be .observed that these statutes do not discharge the debt actually, but simply bar the remedy, so that a person having a lien will continue to have that lien, although his debt is statute barred, and therefore he cannot bring any action to recover it (g). With regard to the further periods allowed in the case of disability, it should be observed that the disability must be existing at the time of the accrual of the cause of action, and no sub- sequent disability will be of any effect, for when once the time of limitation has begun to run, nothing will stop it (h) : thus, if at the time of the accrual of a liability under a contract, the person who has incurred such lia- bility is here, though he goes beyond seas the next day, yet the party, having the right against him, has no (e) 19 & 20 Vict. c. 97, s. 12. (/) 19 & 20 Vict. c. 97, s. 11. I (ly) Per Lord Eldon,Spea7-sv. Hartley, 3 Esp. 81. This is different to the Statutes of Limitation relating to land, which not only bar the remedy, but also the right. (/() Per cur. Rhodes v. Smethurst, 6 M. & W. 351 ; Gregory v. IlurriU, 5 B. & C. 341. OF THE LIABILITY ON CONTRACTS. 205 further time allowed him to enforce that right, though he would have had, had the other Leon actually beyond seas at the time of the liability accruing. But, notwithstanding these provisions, the debt may The ways in be revived, or the Statutes of Limitation prevented ^l''':'^ ^}^^ from applying, in the following ways : statutes of Limitation may be pre- 1. By an acknowledgment. . vented. 2. By payment of interest. 3. By part payment ; and 4. By the suing out a writ of summons. As to the acknowledgment to take the case out of the Wiiat will be statlitesri't will have been observed that the 3 & 4 ;;;^k"n*!wiedg- Wm. 4, c. 42 (the statute as to records and specialties), munt to take 1 •! i.^ J. • L J.1 • -1 • ii-a case out of expressly provides that it must be m writing, but m t^e statutes of the 21 Jac. 1, c. 16 (the statute as to simple contracts), Limitation. there is no such provision, and formerly a verbal admis- sion of the debt before the expiration of the six years allowed was sufficient, provided it contained an express promise to pay, or was in such distinct and unequivocal terms that a promise to pay upon request might reason- ably be inferred from it (i), so that where the acknow- ledgment set up was in the following words : " I know that I owe the money, but .... I will never pay it," it was held this was no sufficient acknowledgment, because the very words negatived a promise to pay {k). This is still what must be the nature of an acknowledgment to take the case out of the statutes, so that, in every case where it is disputed whether words used do or do not amount to an acknow- ' ledgment, the criterion is, do they contain an actual (i) Williams V. Griffiths, 3 Ex. 335 ; Smith v. Thome, 18 Q. B. 134. Ik) A' Court V. Cross, 3 Bing. 328. 20G OF THE LIABILITY ON CONTRACTS. promise to pay, or can such a promise be inferred ? Thus, in a very recent case (1), the defendant had written to the plaintiff saying that " he woukl feel ' obliged to him to send in his account up to Christmas last," and it was held that a promise to pay what was due could be inferred from these words, and therefore that they operated as a valid acknowledgment. An acknow- A mere parol acknowledgment will not, however, ieJgm.nt must j^q^ |^g sufficient, for it has been provided by Lord now ahvavs be -, , i , , \ n , i in in writing. Tcnterdcn s Act [m), that no acknowledgment or pro- mise by words only shall be sufficient unless in writing signed by the party chargeable therewith (w), and by the Mercantile Law Amendment Act (o), it is enacted that such an acknowledgment may be signed by an agent of the party duly authorized. Effect of an In the casc of several persons being liable jointly m^nTb^^ofe ^^pou a coutract, and one of them giving an acknowledg- of several joint mcut, though without the conscnt or knowledge of the toi'ntlln- other or others, it was formerly held that it took the case tractors. out of the Statutes of Limitation, not only as against that one but against all (jj). The contrary is, however, now the law, it having been provided by Lord Tenter- den's Act (q), that where there shall be two or more joint contractors, or executors or administrators of any con- tractor, no such joint contractor, executor or administra- tor, shall lose the benefit of the Statutes of Limitation so as to be chargeable in respect or by reason only of any written acknowledgment or promise made or signed by any other or others of them, and that in any action brought against several joint contractors, where one (0 Quincey v. Sharp, 45 L. J. (Ex.) 347. (w) 9 Geo. 4, c. 14, s. 1. (n) It is, however, expressly provided in this section, " that nothing therein contained shall alter or take away or lessen the cH'ect of any pay- ment of any ])rincipal or interest made by any person." (o) 19 & 20 Vict. c. 97, s. 13. Ip) \V/iitcomJje v. Whitimj, 1 S. L. C. G44:; Doiigl. G52. (7) 9 Geo. 4, c. 14. OF THE LIABILITY ON CONTRACTS. 207 has given an acknowledgment, judgment may bo given against that one (r). ■ . , ^ — ^^ H few ? An ackno wledgment must be made before any action An acknow- is_brought (s). The person to whom the acknowledg- n^uf"^i^"before ment should properly be made is the creditor, or some action. one on his behalf, and if it is merely made to a third person it is very doubtful whether it is sufficient to Quare as to take the case out of the statutes : so also in the case of acknowiefig- ment mauo a promissory note, if the maker gives an acknowledg- to a third ment to the payee, it is doubtful whether that can be f^^^^^- made available to defeat the statute in an action by a subsequent party to the note {i). As to payment of interest or part payment of the Payment of debt, this always has been and is still sufficient to take i"*"'*^"'* '^*'' ^ a case out of the Statutes of Limitation. The part of la-inJipai. payment indeed is evidence of a fresh promise to pay, and it must be made under such circumstances that a ' promise to pay the balance may be inferred (tt). Pay- ment to an agent will be sufficient, and it is said that , where there are accounts with items on both sides, the going through them and striking a balance converts the set-off into a payment, so as to take the case out of the statute {x). In the case of several persons liable ujjon a contract. Effect of in the same way that it was formerly held that an of '^i-in^c'^™'!'^'^ acknowledgment by one would take the case out of the or payment of Statutes of Limitation as against all, so in the case of l^/Svemf °''' part payment of principal or payment of interest by one, joint debtors it was also held that it extended to all (y). The contrary contr!!ctors. as to this also is, however, now the law, it being pro- (r) Sec. 1. (s) Bateman v. Finder, 3 Q. B. 574. (0 See Chitty on Contracts, 763, 764. (ii) Morgan v. Rowlands, L. R. 7 Q. B. 493. (x) Chitty on Contracts, 764. (t/) Whitcomfje v. Whiting, 1 S. L. C. 644; Dongl. 652. 208 OF THE LIABILITY ON CONTRACTS. vided by the Mercantile Law Amendment Act, 1856 (z), " that when tEcro shall he two or more co-contractors or co-debtors, whether bound or liable jointly only, or jointly and severally, or executors or administrators of any contractor, no such co-contractor or co-debtor, exe- cutor or administrator, shall lose the benefit of the said enactments " (i.e., the Statutes of Limitation), " so as to be chargeable in respect of, or by reason only of, pay- ment of any principal, interest, or other money, by any other or others of such co-contractors or co-debtors, executors or administrators " (a). Issuing of A writ may be issued before the period allowed by the m'event*" statiitc has expired. Such writ of summons only remains Statutes of : iu forco for twelve months, but leave may be given for Limitation. .^^ renewal, on showing good reason, for a period of six months, and so from time to time during the currency of the renewed writ ; and any writ of summons so renewed will remain in force for and be available to prevent the operation of any statute whereby the time for the commencement of the action may be limited, and for all other purposes from the date of the issuing of the original writ of summons. The production of a writ of summons purporting to be marked with the seal of the Court, showing the same to have been renewed, is sufficient evidence of its having been so renewed and of the commencement of the action (h). 2. Set-off. Set-off is " a demand which the defendant in an action sets up against the plaintiff's demand, so as to counterbalance that of the plaintiff either altogether or . ^, in part. As, if the plaintiff' owes for £10 due on a note of hand, the defendant may set off £9 due to himself from the plaintiff for merchandise sold to the plaintiff; (j) 19 & 20 Vict. c. 97. («) Sec. 14. (fcj Judicature Act, 1875, Order viii. rr. 1, 2. OF THE LIABILITY ON CONTRACTS. 209 and if he pleads such set-off in reduction of the plaintiff's claim, such plea is termed a plea of set-off. A set-off may therefore be defined as a claim which a defen- dant has upon a plaintiff, and which he sets up or places against the j^laintiff's demand (c). Before any statute upon the subject a defendant was Former rules not allowed to set off any claim he had against the ""^ ^° set-ofi. plaintiff unless it was strictly connected with the plaintiff's demand, so that, for instance, if the defendant had simply some independent counter-debt against the plaintiff, he must have brought a cross action to recover it, but in an action for money received by him he might have set off any deduction he was entitled to make out of such sums by way of commission or otherwise (d). In equity the rule was somewhat different, being much more extensive, for there whenever there was some mutual credit between the parties set-off was allowed (e). However by the Statutes of Set-off (/) all mutual debts were allowed to be set off, and this even although such debts were of a different nature. But under the Statutes of Set-off only debts were allowed to be set off, and so the law has remained until quite lately, when upon this point it received a very great extension, it being provided by the Judicature Act, 1875 (g), that Provision of " a defendant in an action may set off or set up by way "l^.f "'fo"'^* of counter-claim against the claims of the j)laintiff any right or claim, ivhether such set-off or counter-claim sound in damages or not, and such set-off or counter-claim shall have the same effect as a statement of claim in a cross action, so as to enable the court to pronounce a final judgment in the same action both on the original and on the cross claim. But the court or a judge may, on the application of the plaintiff before trial, if in the (c) Brown's Law Diet. 328. (d) See hereon generally, Chitty on Contracts, 772-79 L (9 Vict. c. 77, Onlrr xvi. r. 1«. and Or-lor xxii. r. f.. OF THE LIABILITY ON CONTBACTS. 211 has any claim in connection with the subject-matter of the action against some person not a party to it, such third person may be brought in, and the matter deter- mined in the same action. Instances of this would occur if the defendant was one of several sureties, for here he could get contribution from his co-surety or co-sureties ; or again if he had a set-off not merely against the plaintiff in his sole capacity, but against the plaintiff and some third person together. By release, as applied to contracts, is meant some act 3. Release, which operates as an extinguishment of a person's lia- bility on a contract, and it may occur either expressly, where the contractee expressly exonerates or discharges the contractor from his liability, or impliedly, where the same efiect takes place by the act of the law. An , express release may be by an instrument under seal, in which case no consideration is necessary to its validity and effect, or provided there be a valuable consideration for the release, it need not be under seal, provided it is made before breach, and also provided the original contract was not under seal ; if it was under seal, then it can only be discharged by a release under seal. After breach, too, a release must be under seal, unless ■ being founded on a valuable consideration it can; operate, as it may possibly do, as an accord and satis- - faction (m). A contract of record may be discharged , by a release under seal (w). A release can only generally operate to discharge a release the liability of the person to whom the release is given, ^J-^Vrar^ but in the case of several joint contractors a release'joint con- given to one will operate to discharge all, the reason ofi g^lfi.^^es^ ^{i' which is apparent, for if it did not so operate the effects would be that any co-contractor from whom the amount was recovered would have a right over for contribution (in) As to which, see ante, pp. 199-201. («) Chitty on Contracts, 708. p 2 212 OF THE LIABILITY ON CONTRACTS. against the cue released, so that the release would really be without effect (o). Covenant not to sue by one of two J joint creditors is no defence to an action brought by the two. Effect of a creditor ap- pointing his debtor executor. Or of a woman marrying her creditor. Although one of two joint creditors can give a release, yet a covenant not to sue given by one of two joint creditors does not so operate, and cannot be set up as a defence to an action brought by both (j)). An instance of release by operation or imj)lication of law occurred formerly in the case of a creditor appointing his debtor executor of his will and dying, for here as he as executor is the person entitled to receive the debts, and the debt is due from himself, and he cannot sue himself, the debt was at law gone. But in equity he would have been a trustee for the benefit of the persons entitled under the will, or the next of kin (q) ; and it is now provided by the Judicature Act, 1873 (r), that where there is any variance between the rules of law and equity, the rules of equity shall pre- vail. Another instance of release by operation of law, which would formerly have occurred, and may occur now, is in the case of a woman marrying a person to whom she is indebted ; but in equity any such debt might always have been kept alive by the agreement of the parties j)rior to marriage by way of settlement, and the same provisi(m in the Judicature Act applies here. Or of altera- tion of an instrument. A further instance of release by operation of law is found in the case of the material alteration of written instruments after execution, which has been before dis- ■ cussed (s). 4. Bankruptcy, liquidation, and composi- tion. Bankruptcy, liquidation, and composition are courses (o) Chitty on Contracts, 712. (p) Wolmcslcy v. Cooper, 11 A. & E. 221. {q) See Snell's Principles of Equity, 105, 106. (r) 36 & 37 Vict. c. 66, s. 2.5 (11). (s) See ante, pp. 129, 130. ouJ^ U. t^ /^ .Kv:^ A-- -< «^ f(f ^ d.Mt:' ^^.^ /. ^ ^.^ ^JVl^f l/ .*a crtW,Mi^-'( /<« or THE LIABILITY ON CONTRACTS,, '^'^-^^ tr^T^cX 213^1 ^/^ ^ i i for the false representation ' of an agent, though the (7) Cornfoot v. Foicfte, 6 M. & W. 358 ; Evans v. Collins, Ex. Ch. 5 Q. B. agent believed 820 ; Bailey v. Walford, 15 L. J. (Q.B.) 369. See this subject discussed it to be true, in 2 S. L. C. 85-90. OF FRAUD AND ILLEGALITY. 219 liable for the false representation of bis agent ever, simply because the agent believed in its trntli, for in that case it was admitted that if the plaintiff had em- ployed an ignorant agent for the express purpose of con- c^ling some fact as to the property, he would have been liable for the fraud ; and there may be many cases where, from the conduct of the principal, moral fraud may be taken to exist (r). Though the point cannot be said to be absolutely free it appears that from doubt, it would appear that if an agent in the y Yi"^fjff!ijg course of his employment make some representation moral fraud of known to him to be false, but which representation is ^^^ '''^^'^*" unknown to the principal, and not in any way sanc- tioned by him, yet the principal is liable for the fraud (s). A mere lie is not sufficient to constitute fraud, nor is what repre- a false representation sufficient to found an action on sentation will it, unless it has caused some damage to the party to ficient to whom it is made ; nor is a false representation suffi- constitute a cient to avoid a contract, unless thereby the defendant has been induced to enter into the contract (t). In the case of an untrue warranty, it has before been Difference pointed out that it is different from an actual fraudulent I'ytween a representation (w) ; and this difference it is important .a false to note, for in the case of a false representation, as has ^'epiesentation. been shown, it is generally necessary to show the knowledge of its falsity, but for the breach of a war- ranty a person is liable without alleging or showing! any such knowledge on his part. (r) See remarks of Lord St. Leonards in National Exchange Company of Glasgow v. Brew, 2 Macq. H. of L. Cas. 103. (s) Udell V. Athcrton, 7 H. & N. 172; Bancick v. English and Joint Stock Bank, L. R. 2 Ex. 259. (f) Broom's Corns. 339. (?«) Sec ante, p. 82. 220 OF FKAUL) AND ILLEGALITY. Representa- If a pei'son interests himself to procure credit for tions concern- another, or is ai)plied to and inquired of as to a person's ing the credit ' x i j. ... of another position, and makes some false representation m reply be"in writ'mo' tliereto, whereby the inquirer is induced to give credit to the third person, he is liable to an action in respect of the fraud contained in such false representation. But by Lord Tenterden's Act (x) it is provided " that no action shall be maintained whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade or dealings of any other person, to the intent or j)urpose that such other person may obtain credit, money, or goods upon (y), unless such representation or assurance be made in writing signed by the party to be charged therewith." 13 Eliz. c. 5. By Statute 13 Eliz. c. 5, "An Act against Fraudu- lent Deeds, Gifts, Alienations, &c.," it is provided that all gifts, grants, conveyances, &c., of every kind of property, by writing or otherwise, made for the pur- pose of delaying, hindering, or defrauding creditors and others of their just and lawful actions, suits, debts, &c., shall be clearly and utterly void and of no efiect as against such creditors and others, except made upon good (which means valuable) consideration to a person hond fide not having notice of the fraud. It will be observed that this statute applies to conveyances of all . kinds of property whether real or personal. The lead- / Twy nne's Case, ing case on the construction of the statute is Twynne's I , case (z), in which a gift of goods was held to be fraudu- {,^1 '.• r.vv-v/ j^^^ ^^ ^j^^ following grounds : ^' ' J - ■ . '-■V 'i "'■ (x) 9 Geo. 4, c. 14, s. 6. (ij) This is as it is in the Act, but it is evidently a misprint in it, and should be read " money oi- goods upon credit." (x) 1 S. L. C. 1 ; ■■i Coke, 80. OF FRAUD AND ILLEGALITY. 221 1. The gift was perfectly general. 2. The donor continued in possession after the gift. 3. It was made in secret. 4. It was made pending the writ. 5. There was a trust between the parties, and fraud is always^lothed with a trust. 6. The deed of gift contained that the gift was honestly and truly made, which was an inconsistent clause. The above are therefore points to look to in any gift or conveyance of property to determine whether or not it is fraudulent within the above Act, and particular attention should be paid to the point above numbered 2, for under it at the present day, should an absolute bill of sale be made, and the person giving it yet continue in possession of his goods, this will be an index of fraud (a), and therefore in framing a bill of sale, if it is intended that the giver of it should still continue in possession of the goods, it is important to make his continuing in possession consistent with the terms of the bill of sale (b). Although a conveyance may be fraudulent under the above statute as against creditors, yet as between the parties themselves it is good. By 27 Eliz. c. 4, all voluntary conveyances of land 27 Eliz. c. 4. (a) Edwards v. Harben, 2 T. R. 587. (6) Martindale v. Booth, 3 B. & Ad. 498, and cases there cited ; 2 Pri- deaux's Conveyancing, GGO. 222 OF FRAUD AND ILLEGALITY. are rendered fraudulent and void against subsequent purcliasers for value, and this even altliougli the subse- quent purchaser may have notice of the first voluntary- conveyance (e). Ex doh maio As to the cffect of fraud on a contract, the maxim is, non oritur j^^, j^j^ ^^^^^j^ ^^^^^ oritur (ictio (d), but, notwithstanding this, the effect of fraud is not to altogether vitiate a contract, but the person on whom the fraud is practised has a right to insist on the fraud as preventing any ( right of action that would, but for it, exist, or he may 1 if he choose waive the fraud and ratify and confirm the Butthirdj i contract (e). And although as a contract originally persons may stands, if iuduccd by fraud, the party guilty of the SS.'''' fi'aud cannot enforce it, yet if third parties acquire a j ho7id fide interest under it without any notice of the I fraud, they will have a right to enforce it even against I the party on whom the fraud has been practised (/). A rescission of But where there has been fraud, and a person has thT'^rounVof therefore a right of rescinding the contract, he must fraud must excrcisc this right within a reasonable time (g), and if withTn r*"*^ knowing of the fraud he does not rescind the contract, reasonable but Continues to act in it as if there were no fraud, he will lose his right. time. A person is There may be, however, many cases in which a false h^s fille^re^re- representation is made innocently, the party making it sentation if he not knowing of its falsity, and here, unless a case of ^f 'resent'atbn Warranty can be made out, the person who is misled will to be true. have uo rights in respect of such misrepresentation. (c) See generally hereon, Snell's Principles of Equity, 66. ((/) See Broom's Legal Maxims, 729, et seq. (e) White v. Garden, 10 C. B. 919, 927 ; Stevenson v. Neicnham, 13 C. B. 285. (J) (Jakes V. Turquand, L. R. 2 II. L. C. 325. OF FRAUD AND ILLEGALITY. 223 For instance, if a horse is sold and represented by the vendor to be sound, if the vendor knows the animal is not sound, and by this representation the -other party is induced to j)urchase the animal, this gives him a right to avoid the contract quite irrespective of any warranty as to the soundness of the animal ; but if the vendor really believes that the horse is sound, here there is no fraud, and the misrepresentation gives the purchaser no rights unless he can make out that the vendor actually warranted the animal to be sound (h). And if there is fraud it is not necessary to show that Fraud need the fraud goes to the whole of the contract; it is quite ^y^Vk o*f th^e^ sufficient to show that there is a fraudulent misrej)re- coutract. sentation as to any part of that which induced the person to enter into the contract (i). If a person comes to the Court to set aside a contract Application on the ground of fraud, and it appears that he also on ^|i*^^a,"XfeL his part has been guilty of fraud, so that both parties &c. .-. _^ '^- , are really and truly in ])ari delicto, the Court will not U-- 1?^ J^ ^i L give relief, for the maxim is, In pari delicto potior est ^ J-*-*^'- i^^ ; *-^ ^ conditio_defendentis et possidentis, unless, indeed, public '■ ,?^>"b(f'er?od S^^^ ^^^ P^^^ ^^^ ^^^ ^^ P^^'*' ^^^ ^^^^^ ^^ ^^^^^ shown and part bad. by the casc of Mallaiii V. May (d). In that case it had Maiiamw May. been agreed between the plaintiffs and defendant that {z) Ward v. Byrne, 5 M. & W. 548. (a) In a case of Mumford v. Gethiwj, 1 C. B. (N.S.) 317, Byles, J., [asked, "Do you find any case showing that the absence of a limitation in point of time would make the agreement bad where the restraint is not too large in jtoint of space ?" and he was not referred to any such case. 1 he case of Wickens v. Evans, 3 Y. & J. 318, tends, however, to show that the law is as submitted in the text above. (b) Mitchell V. lieynolds, 1 S. L. C. 406 ; 1 P. Wms. 181. (c) Hitchcock V. Cohen (in Cam. .Scac), 6 A. & E. 438 ; Archer v. Marsh, 6 A. & E. 966 ; Filkington v. Scott, 15 M. & W. 6'>7. (d) 11 M. & W. 653. OP FRAUD AND ILLEGALITY. 229 the defendant should become assistant to the plaintiifs in their business of surgeon-dentists for four years ; that the plaintiffs should instruct him in the business of a surgeon-dentist, and that after the expiration of the term the defendant should not carry on that busi- ness in London, or in any of the towns or places where the plaintiffs might have been practising before the expi- ration of the said service. On breach of the covenant, and action being brought thereon, it was held by the Court that the stipulation not to practise in London was valid, the limit of London not being too large for the profession in question, but that the stipulation as to not practising in towns where the plaintiffs might have been practising was an unreasonable restriction, and therefore illegal and void ; and that the stipulation as to not practising in London was not affected by the . illegality of the other part (e). An agreement or combination of employers binding! Agreement or themselves only to employ workers at a certain rate of I enl^^ioyei-g"'^ wages, or only to carry on their business in a certain! specified way, is illegal, and no action lies on the breach of any such agreement (/). So also an agreement by employees to combine to increase the rate of wages cannot be enforced {g) ; but by the Trade Union Act, Trade Union 1871 (A), it is however provided that trade unions are ^^'^^' ^^'^'^' not to be considered unlawful so as to render members thereof liable to be prosecuted, but agreements between . members not to sell their goods or be employed are to [ be incapable of being enforced (*'). Of contracts of an immoral nature, and as such Contracts of an immoral nature. (e) See also Price v. Green, 16 M. & W. 346. (/) Hilton V. Eckcrsleij, 6 E. & B. 47-66. Ig) Walshii v. Anley, 3 El. & El. 516. (h) 34 & 35 Vict. c. 31. (0 Sees. 2-4. 230 OF FRAFD AND ILLEGALITY. illegal and void, may bo mentioned agreements in con- sideration of cohabitation or futnre seduction (j), or the letting of lodgings for the direct purpose of prosti- tution. Contracts which operate in general restraint of mar- riage are illegal and void. Contracts involving maintenance and champerty are also illegal and void. Maintenance. Maintenance may be defined as an ofience which con- sists in officiously intermeddling in a suit that in no way belongs to one, as by maintaining or assisting either party with money or otherwise, although having nothing to do with it (/c). Probably, however, at the present day, the offence of maintenance is obsolete, there being numerous and very wide exceptions. Champerty. Champerty consists in an agreement between a liti- ganl and a third party, whereby in consideration of that third party advancing him money he agrees to share with him the proceeds of the litigation. It may be noticed that the Attorneys and Solicitors Act, 1870 (?), specially guards against champerty, in the case of solicitors, by providing (m) that " nothing in this Act ' contained shall be construed to give validity to any pur- chase by an attorney or solicitor of the interest of his client in any suit, action, or other contentious proceed- ing to be brought or maintained, or to give validity to any agreement by which an attorney or solicitor retained or employed to prosecute any suit or action (_;■) A contract to paj' a sum in consideration of past seduction is not illegal, but it would afl'ord no consideration to support a simple contract : Beaumont v. Jice've, 8 Q. B. 483 ; ante, p. 35. (A) Brown's Law Diet. 224. (/) 33 & 34 Vict. c. 28 ; see ante, p. 155. im) Sec. 11. OF FBAUD AND ILLEGALITY. 231 stipulates for payment only in the event of success in i such suit, action, or proceeding." All contracts for the compromise of criminal offences, or to interfere with the course of justice, are illegal and void. So also are contracts for future separation. We will now consider some contracts which are Matters mala rendered illegal by reason of some statutory provision. P''^^"^^^'^'- Gaming and wagering contracts are illegal and void, Gaming being prohibited by statute. At common law, how- ^"'^*^^'^'^*^- ever, such contracts were valid unless of such a nature as to contravene public policy, as, for instance, if tend- ing to the injury or annoyance of others, or to outrage decency (»). Various statutes have, however, been passed from time to time prohibiting gaming and wagering contracts, and the statute now in force on the subject, 8 and 9 Vict. c. 109, provides (o) " that all 8 & 9 Vict. contracts or agreements whether by parol or in writing ''• ^*^^ by way of gaming or wagering shall be null and void ; and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to have been won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made ; provided always that this enact- ment shall not be deemed to apj)ly to any subscription,] or contribution, or agreement to subscribe or contri-i bute for or towards any plate, prize or sum of money to be awarded to the winner or winners of any lawful; game, sport, pastime, or exercise." It may often be a source of some difficulty to deter- Difficulty sometimes in ' ascertaining (n) See Broom's Corns. 355. whether a (o) Sec. 18. contract is 232 OF FRAUD AND ILLEGALITY. by way of minc ^yhctller or no any particular contract is by way o'aiuin!"'" "^^ ^^' S 1 i 1 • 1 which do not there are many and numerous wrongtul acts wnicJi, amount to though amounting to torts, yet do not come within the crimes, category of crimes. Thus particularly may be enumer- ated torts arising from the negligence of one's servants or agents. If a coachman is driving his master's car- riage in the ordinary course of his duty, and by his negligence he runs over a person, this is a tort for which the master may be liable in a civil action, but it is nothing more ; there is no crime on the master's part. Again, a private nuisance — that is, a nuisance which does not affect the public at large, but simply some individual — is a tort but not a crime. But, on the other hand, many acts may not only be As to torts torts but mav also amount to actual crimes punishable ''^^o^'^t'^g t" y . . ■■■ _ crimes. by the criminal law ; thus, in our first instance given above, we have it that the master has committed a tort, but no crime, but with regard to the coachman the case may be very different, for he may not only have been guilty of a tort but possibly also of a criminal offence amounting to manslaughter. So also if a nuisance is not a merely private but a public one — that is one affecting the public at large — this is an offence for which the person committing it is liable to be indicted. (7n) Ante, p. 238. (n) See Brown's Law Diet. p. 104, title "Crime." R 242 OF TORTS GENERALLY. Where a tort is also a crime the civil remedy is generally sus- pended until after pro- secution. When a tortious act is also a crime, and a crime of such a high nature as to amount to felony (o), the civil right which a person has to maintain an action for the injury clone to him is suspended until the felony has been punished, for " the policy of the law requires that before the party injured by any felonious act can seek civil redress for it, the matter should be heard and dis- posed of before the proper criminal tribunal in order that the justice of the country may be first satisfied in respect of the public offence " ( 2^), But when public justice has thus been satisfied there is generally nothing to prevent the injured party from suing in a civil action in respect of the tort. Exce] lions. 24 & 25 Vict, c. 100, ss. 44, 45, With respect, however, to some torts amounting to crimes, the injured party cannot take both civil and criminal proceedings ; but these are cases in which, though the act does amount to a crime, yet it is to a certain extent a crime directly and particularly affecting the individual, and not the public at large. Thus, for an assault, where there is a criminal prosecution and there is also a civil action for damages pending, sentence will not be passed for the crime whilst such action is pend- ing {q). It has also been provided that if the justices upon the hearing of any summary proceedings for assault or battery, upon the merits, shall deem the offence not proved or to be justified, or so trifling as not to merit any punishment, and shall accordingly dismiss the complaint, they shall forthwith make out a certificate under their hands stating the fact of such dismissal, and shall deliver such certificate to the party (o) A felony at common law was an offence which occasioned forfeiture of a man's property, and was gonerally applied to a higher class of offences than compi-ised under the term "misdemeanor." Now, however, by various statutes, numerous offences have been cl.assed indiscriminately as felonies and misdemeanors, and forfeiture for felony having by 33 & 34 Vict. c. 23 been abolished, the original distinctions between felonies and misde- meanors are now to a great extent gone. {p) Per Lord Ellenborough, C.J., in Crosby v. Leng, 12 East, 413, cited in Broom's Coms. p. 106. i'l) J'<''.h '^'- Mnhon, 4 A. & E. .'STS. OF TOKTS GENERALLY. 243 against whom the complaint was preferred (r) ; and that if any person against whom any such complaint shall have been preferred shall have obtained such a certifi- cate, or having been convicted shall have paid the whole amount adjudged to be paid, or shall have suffered the imprisonment awarded, in every such case he shall be released from all further or other proceedings, civil or criminal, for the same cause (s). The term " tort " is frequently used for the purpose The term of denoting a wrong or injury quite independent of !' '^''^"'^ '^.."^*^ contract (t) ; but in the definition at the commencement tinction to of the present chapter a wider application is given to it, ' ^o^*^^"'*^*^*^- viz., that it is some wrongful act which consists in the withholding or violating some legal right, and, as will be presently noticed, there are many torts in some way connected with contracts, and which are said to arise out of or flow from contracts. Before, however, pro- ceeding to further notice this, it is important to have a correct appreciation of the difference between rights arising from breach of contract and rights arising from a tort, using that term as signifying an injury indepen- dent of contract, for these are the more ordinary and common kind of torts. Where a person's right arises from a wrongful act Difference independently of any contract, his action is styled an between torts ■ 77 -111 ■• j-1 n arising trom action ex delicto, but when arising strictly out ol a con- contracts and tract it is called an action ex contractu, and in this "ifi^pen'^ent . 1111 °^ contracts. latter kind it is necessary that there should be privity between the plaintiff and the defendant, for a person cannot sue upon a contract when there is no privity between himself and the party against whom he claims. Thus, if a person sends a message by a telegraphic company, and a mistake is made by the company in (f) 24 & 25 Vict. c. 100, s. 44. (s) Ibid. s. 45. (t) See it so defined in Brown's Law Diet. .'562. R 2 244 OF TORTS GENERALLY. sending it, -wheroby he (the sender) is injured, here tliere is privity of contract between him and the com- pany, and he has a right of action ex contractu against them. But if through the mistake an injury happens to the person to whom the message is sent, there being no })rivity of contract between him and the company — for he indeed made no contract with them — he can have no right of action against them ex contractu (u), though possibly he might have such a right ex delicto, on the ground of the company having been guilty of a tort, by reason of the breach of their proper duty. To support an action ex contractu, therefore, it is essen- tial that there should be privity between the parties, but with regard to a tort — again using that term as signifying an injury arising independently of contract — the right of action has nothing to do with any privity between the parties, but it exists simply because of the withholding or violation of some right {x). That this is so is shown by the case of Laiigridge v. Levy, the facts in which have been already stated {y). There are But there are many kinds of torts arising out of many cases m gQ^^tract, bcin >• cascs in which there has been a contract which It raav ^ n ^ i • i i i n be in a person's and a breach ot that contract, which looked upon m election to^sue ^^^ ^^^ fumish a right of action ex delicto, and looked for breach of at in another way furnish an action of tort. Thus, in contract. ^j^^ ^^^^ ^£ Lam/ridge v. Levy, before referred to (2), there was a valid contract of warranty of the gun to the father who bought it, and on a breach of that war- ranty as regarded him he might have brought an action ex contractu, but the actual fact in the case was that the breach happened as regarded the son, as to whom there was no privity of contract, he not having been in any way a party to the contract ; but he was held entitled to succeed in the action ex delicto. The point we are at (»<) Plaijford V. United Kinrjdoin Tele()raph Co., L. R. 4 Q. B. 706. (J) Gerhard v. nates, 2 \L. k B. 476 ;' L in;)rid()e v. Levn, 2 M. & W. 519. 0/) Ante, p. 240. (0 Ante, p. 240. OF TORTS GENERALLY. 245 present considering is well explained by ]^^r. Broom in bis Commentaries on tbe Common Law (a), and we cannot do better tban quote tlie passage from tbat work : "... Altbougb tort in general diflfers essentially from contract as tbe foundation of an action, it not un- frequently bappens tbat a particular transaction admits of being regarded from two different points of view, so tbat wben contemplated from one of tbese it presents all tbe cbaracteristics of a good cause of action ex con- tractu, and wben regarded from tbe otber, it offers to tbe pleader's eye sufficient materials wbereupon to found an action ex delicto. Tbus, carriers warrant tbe transportation and delivery of goods entrusted to tbem. Attorneys, surgeons, and engineers undertake to discbarge tbeir duty witb a reasonable amount of skill, and witb integrity ; and for any neglect or unskilful- ness by individuals belonging to one of tbese professions, a party wbo bas been injured tbereby may maintain an action, either in tort for the ivrong done, or in contract, at his ejection " (5). And even in cases wbere tbe tort flows from contract. Privity is never nece sary in torts. tbe rule tbat privity between tbe parties is not neces ^'^^'^^' ^^^^^' sary, still applies {c). Having now considered tbe nature of torts, tbe dis- tinctions between mere torts and acts actually amount- ing to crimes, and tbe differences between acts wbicb are purely and simply torts in tbe more limited sense of tbe word, and breacbes of contract, it remains but to notice in tins cbapter tbat tbere are certain acts wbicb, tbougb tbey are torts, yet tbe law allows of no redress for, principally upon public grounds. (a) Page 660. (6) From the above the student will perceive that there are various matters before treated of under Part I., "Contracts," which might perhaps with equal propriety be considered in this part, "Torts," particularly such subjects as Carriers, Innkeepers, and Bailments generally. (c) Gerhard v. Bates, 2 E. & B. 476 ; Lamjridge v. Levy, i M. & W. 51!;>. 246 OF TORTS GENERALLY. Maxim that There is no remedy for a tort committed by the drno'°^ron". Sovereign, because of the maxim, " The king can do no wrong" ('/). Acts done by For any act done by a judge of a court of record, no a judge ot action lies, provided such act is done in the proper and a court ot ' t _ ... record. appropriate discharge of his legal duties, for it is con- sidered for the benefit of the community at large that the judges should have full scope and not be fettered and impeded by any restraint and apprehensions, and this is so even although a judge's acts may be shown to have proceeded from malice. But if an act is done by a judge not acting judicially, or if an act is done by him in respect of some matter not at all within his jurisdic- tion, he is not protected then, but is liable in the same way as any other person (e). a superior officer. Acts done by Again, a superior officer is justified in arresting and imprisoning an officer under him for the purpose of bringing him to a court-martial in accordance with the rules of the service, and this is so even although the person so arrested is not ultimately brought to a court-martial, if the arrest was in respect of some matter fairly cognisable by a military tribunal, and (cf) Broom's Legal Maxims, p. 52. The meaning of this maxim is stated in Broom's Legal Maxims, as follows: "Its meaning is, first, that the sovereign individually and fully in his natural capacity is independent of, and is not amenable to, any other earthly power or jurisdiction, and that whatever may be amiss in the condition of public affairs is not to be imputed to the king, so as to render him answerable for it pei'sonally to his people ; secondly, the above maxim means that the prerogative of the crown extends not to do any injury, because being created for the benefit of the people it cannot be exerted to their prejudice, and it is, therefore, a fundamental general rule that the king cannot sanction any act forbidden by law, so that in this point of view he is under and not above the laws, and is bound by them equally as his subjects. If, then, the sovereign personally command an unlawful act to be done, the offence of the instru- ment is not thereby indemnified, for though the king is not himself under the coercive power of the law, yet in many cases his commands are under the directive power of the law, which makes the act itself invalid if unlawful, and so renders the instrument of execution thereof obnoxious to ]iunishment." (r) See Broom'.s Corns, 108-112, and cases there cited and referred to. OF TOETS GENERALLY. 247 no action will lie against the superior officer (/). And this rule has been carried so far that it has been decided that it will apply even although the tortious act complained off is done maliciously, and without reasonable and probable cause (^7). It has been already pointed out that, when a person has committed a tortious act of such a grave kind as to amount to a felony, the law refuses redress for the civil injury until public justice has been obtained by the prosecution of the offender (h). If two or more persons commit a tort, and the plain- Ex turpi tiff recovers against them, but levies the whole damages ^'^"^^^^, "^^.^ on one, that one has no right to recover contribution for the other or others, for Ex turpi causa non oritur actio (i). And although, if a person is instructed to do some palpably tortious act, and the person so instruct- ing him undertakes to indemnify him from the conse- quences of such act, an action will lie, yet if the act he is so instructed to do does not appear of itself mani- festly unlawful, and he does not know it to be so, he can recover thereon (k). Thus, if A. instructs B. to drive certain cattle from a field, which B. does, thereby unwittingly committing a trespass, A. is bound to in- demify him ; but if A, instructs B. to assault a person, which he does, this is an act manifestly illegal in its nature, and B. cannot call upon A. to indemnify him. (/) Ilannaford v. Hunn, 2 C & P. 148 ; Dawkins v. Lord Eokeby, 4 F. & F. 806. {g) Dawkins v. Lord Paulet, L. R. 5 Q. B. 94, Lord Chief Justice Cock- burn, however, dissented from this. Qi) Ante, p. 242. (0 Merryweather v. Aixan, 2 S. L. C. 527 ; 8 T. R. 186. Of course it isj otherwise in contract. (/j) Per Lord Kenyon in Merryweather v. A'ixan, supra ; Belts v. Gibbon, 2 A. & E. 57. 248 CHAPTER II. OF TORTS AFFECTING LAND. Every person possessed of land has necessarily a right to the peaceful possession and enjoyment of such lands, and the infringement of this right is a tort in respect Different torts of which an action will lie. The infringement of this aflecting land, piglet may happen in various ways, but the most impor- tant infringements are by trespass, by commission of nuisances, and by waste. Meaning of the term " trespass." A trespass, in its widest sense, signifies any trans- gression or offence against the law of nature, of society, or of the country in which we live, whether relating to a man's person or to his property (1) ; but we have here only to consider trespass to lands, which has been defined as a wrongful and unwarrantable entry upon the soil or land of another person (m), and is styled trespass quare clausum f regit. Trespass to lands. In considering the subject of trespass to lands, two main points present themselves, viz. : — 1. The position of the party claiming that a trespass has been committed. I. The position of a person claiming that a trespass has been com- mitted. 2. What will amount to a trespass. Firstly, then, as to the position of the party claiming (I) Brown's Law Diet. 365. (m) Broom's Corns. 755. (rt) .\ddison on Torts, 263. As to trespass to the person, sec post, ch. iv. OF TORTS AFFECTING LAND. 249 that a trespass has been committed. It is necessary that he shoukl have a valid title to the lands, and that he should be actually in the exclusive possession of the lands by himself, his servant, or agent (o). It is not, however, actually essential that the plaintiff should in every action for trespass to his lands prove his strict title to the lands, for possession is the great require- ment, and if the plaintiff proves that he is in possession, as above, that makes out a sufficient prima, facie case on which he can recover ( p) ; but if the defendant in any such action sets up in his statement of defence that the title to the lands in respect of which the trespass is alleged to have been committed is not in the plaintiff but in him the defendant, or in some third person by whose authority he has entered, then the actual title to the lands is in question (q). An action of trespass. An actiou for therefore, is frequently resorted to as a method of trying t'"espass is the title to lands : thus if there is a dispute between resorted to to two proprietors, A. and B., as to which of them is entitled ^^'^j *'i*e title to a certain field in possession of B., A. can enter thereon, and B. subsequently bringing an action for that trespass, the point of which of them is entitled will be determined. Under the original Statute of Limitations as to land (r), 3^4 Wm. 4 a person gains a title thereto after twenty years' ad- ''• 27. verse possession (s), ten years further time being allowed for the disabilities of infancy, coverture, idiotcy, lunacy, unsoundness of mind, and absence beyond seas, at the time a right of entry accrues, from the time the disability ceases (t), but the total period not to exceed forty years (u) ; and if a person's right to recover land is concealed by fraud, then the right to bring the action is to be deemed to have first accrued at the time at which such fraud shall, or with reasonable (0) Hodson V. Walker, L. R. 7 Ex. 55. (p) See Broom's Corns. 757. (q) Addison on Torts, 271. (r) 3 & 4 Wm. 4, c. 27. (s) Sec. 2. (0 Sec. 16. (?0 Sec. 17. 250 OF TORTS AFFECTING LAND. Real PropL>rty Liniitation Act. Very slight evidence of possession of land is suf- ficient to support an action for a trespass. diligence might, have been first discovered (x). And by the Keal Property Limitation Act, 1874 (_?/) (which does not, however, come into force until the 1st of January, 1879), it is provided that no person shall make any entry or distress, or bring any action, to recover any land or rent but within twelve years after the time of the accrual of the right to such person or some one through whom he claims (2) ; but in cases of infancy, coverture, or lunacy existing at the time of the accrual of the right of action, then six years is to be allowed from the termination of the disability or previous death (a), but thirty years is to be the utmost allowance for all disabilities (h) ; and the Act specially provides that " the time within which any such entry may be made, or any such action or suit may be brought as aforesaid, shall not in any case after the commence- ment of the Act be extended or enlarged by reason of the absence beyond seas during all or any part of that time of the person having the right to make such entry, or bring such action or suit, or of any person through whom he claims " (c). We have stated that the possession of the land in respect of which the trespass is committed is an essen- tial to the position of the plaintiff, but " very slight evidence of possession is sufficient to establish a prima facie title to sue for an inquiry . . . such as the occupation of the soil with stones and rubbish which have been placed thereon by order of the plaintiff, and kept there for some short time without molestation, or the building of a wall, or a dam, mound, or fence, which goes on for some weeks without interruption and is then knocked down ; or the inclosure or cultivation (a;) 3 & 4 Wm. 4, c. 27, s. 26. (V) 37 & 38 Vict. c. 57. (i) Sec. 1. ('() Sec. 'A. (6) Sec. 5. (c) Sec. 4. Sec also as to Limilatiou, autc, p. 202. OF TORTS AFFECTING LAND. 251 of a piece of waste ground, the mowing of the grass thereof or the pasturing of a cow thereon ; for mere occupancy of land, however recent, gives a good title to the occupier whereon he may recover against all who cannot prove an older and better title in them- selves " (d). There is, however, one case in which a person whea a may maintain an action for trespass committed to lands reversioner '' _ _ J- _ _ may sue in although not in jJossession, and that is in the case of a respect of a reversioner, who, if some injury of a permanent kind is ^^'^^P'^*^- done to his reversion, may sue for the same (e), although in respect of the immediate injury to the land he would have no right of action, that being in the possessor, the actual tenant. Thus, if a person trespasses and cuts down trees, the tenant of the lands in possession may sue for the injury done to the residential value of the property, and the landlord for the diminished saleable value of the property (/). A mortgagor, by mortgaging, parts with the legal when a estate in the lands, and therefore could not formerly mortgagor ' . . '' may maintain have maintained an action in respect of any trespass an action for committed on the property ; but it is now provided by ^ tresjmss. the Judicature Act, 1873 (^7), that " a mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land as to which no notice of his intention to take possession or enter into the 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 pre- vent or recover damages in respect of any trespass or other wrong relative thereto in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person." The effect of this provision is, for these purposes, to treat (c?) Addison on Torts, 302. (e) Cox V. Glue, 5 C. B. 533. (/) Addison on Torts, 289, 290. (g) 3(5 & 37 Vict. c. 66, s. 25 (5). See also ante, pp. .33, .54-. 252 OF TOPxTS AFFECTING LAND. the mortgagor as the substantial owner, and the mean- ing of the last few words of the section is, that if he is not the sole owner, but entitled only jointly, the provision shall not in such a case authorize him to sue alone. lu an action It is not at all necessary in an action of trespass for lamiuls'nor ^'^® plaintiff to show that he has sustained any special essential to damage, the mere fact of the trespass entitling him at any rate to a nominal verdict (h) ; the fact of a person trespassing after notice or warning not to do so, will operate to aggravate the offence, and justify the jury in giving damages of a penal nature (?). prove any special damage. Exception to In the case of trespass to land, and the owner of such the maxim, j -^ dying, the right of action survives to the executors Acti) personalis ./ o' o moritiircum OX administrators, provided the injury was committed persona. "within six months of the owner's death, aud that the action is brought within one year after his death ; and this forms an excej)tion to the maxim. Actio i^ersonalis moritur cum j)e^'SO)id (k). II. What will amount to a trespass to land. Entry may be constructive. Secondly. "What will amount to a trespass to land? We have defined trespass to land as a wrongful and unwarrantable entry upon the soil or land of another person (/), and it therefore follows that entry is the essential to constitute a trespass. But this entry need not be actual to amount to a tresj)ass, but it may be constructive, as by a person throwing stones or rubbish on to his neighbour's land, or by letting a chimney or any other part of his house fall thereon, or by erecting a spout on his own lands which discharges water on to his neighbour's {m). So also if a man's cattle stray (A) Broom's Corns. 756. (t) Merest v. Harcey, 5 Taunt. 441. (/.) 3 & 4 Wm. 4, c. 42, s. 2. See other e.xceptiuns to tlie maxim, post, 1)11. 283, 3:30. {/) Ante, p. 248. (m) Addison on Torts, 2(55, 2(36. OF TORTS AFFECTING LAND. 253 from his own lands on to his neighbour's, the latter not being under any legal obligation to fence them out, this amounts to trespass ; but this rule as to cattle does not apj^ly to dogs, for the owner of a dog is not liable for its straying and doing injury, unless it is of some peculiarly mischievous disposition (n). And if cattle are lawfully passing along a highway and stray on to adjoining land through its not being properly fenced off, this does not amount to a trespass, though other- wise if they are not passing along, but staying there (o), A jjerson is not generally under any obligation to fence Obligation as out his neighbour's cattle for his neighbour's protec- *« iencmg out tion, though the contrary may be the law either from express contract to that effect or by prescription. Eailway companies are. however, bound to fence to keep out the cattle of adjoining proprietors (p). The fact of a lawful owner of lands out of possession A lawful peaceably entering thereon is iustifiable, and does not °^^°*^^" .°"* "^ ^ . "^ " . ^ possession may constitute a trespass ; thus if a tenant wrongfully holds peaceably- over after the expiration of his tenancy, there is no *^" ^^' doubt that the landlord may peaceably enter, and thus by his own act regain possession ; and it has even been And it seems decided that in such a case a landlord is justified in fol-ci'biy^elp^T^ forcibly entering and turning the tenant out, even a tenant whose though in so doing he may commit a breach of the exph-ed!'' peace (q). The fact that the owner of lands gave to a person licence or permission to come on his lands will, of course, justify and excuse what would otherwise be a trespass, but will not justify the remaining after re- (n) Addison on Torts, 266, 267. (o) See I)ov:istoii v. Payne, 2 S. L. C. 136 ; 2 Hen. Blackstone, 527. Ip) 8 & 9 Vict. c. 20, s. 68. And it has recently been decided that this duty of railway companies extends to keeping out swine, although swine require a stronger kind of hedge than cattle : see Childs v. Ilearn, 30 L. T. Reps. (N.S.) 760. (7) Newton V. Harlund, 1 Mr. & Gr. 644; per Parke, B., ffarvei/ v. Hrydgcs, 14 M. & W. 442. 254 OF TOKTS AFFECTING LAND. A person is justirtid in removina; a trespasser from his lands scission of such permission, A person is justified in removing a trespasser from his lands, provided he first require him to leave, and in removing him he does not use a greater amount of force than is necessary under the circumstances. Or in forcibly A pcrson is justified in forcibly defending the posses- defending g^Qj^ Qf jjig lo^j^^ against any one who attempts to take possession. it (r). Some special lights over the lands of others. Easements, Rights of common. Persons sometimes have rights over the lands of others, entitling them to do acts which, if they had not such rights, would amount to trespasses ; and of such rights the chief are Easements and Eights of Common. An easement has been well defined as " The right which the owner of one tenement, which is called the domi- nant tenement, has over another, which is called the servient, to compel the owner thereof to permit some- thing to be done, or to refrain from doing something, on such tenement for the advantage of the former " (s). Eights of water- course and rights of way may be mentioned as easements (t). A right of common has been defined as " The right which one person has of taking some part of the pro- duce of land, while the whole property of the land itself is vested in another " (u). Instances of rights of common are the right of pasturing cattle on another's lands, called common of pasture ; the right of cutting turf on another's lands, called common of turbary ; and a right of fishing in water on another's lauds, called common of piscary (x). (/•) Tnllij V. lieed, 1 C. & P. 6. (s) See notes to Surij v. Pigot, in Tudor's Conveyancing Cases, p. 127. (t) This IS a subject belonging to Conveyancing. As to it, see Sury v. I'ifjot (supra), and notes thereon. (u) See notes to Tyriinrjh'im's Case, in Tudor's Conveyancing Cases, p. 101. (x) This subject also pertains to Conveyancing, and rfferfnce may be inde to the notes to I'lpriru/ham's Case (supra). OF TORTS AFFECTING LAND. 255 Where persons own land adjoining a river (y), the Riparian soil is vested in each up to the centre of the stream, i'^°i'"'^ °^^- and if either deals with it beyond that point he is a trespasser. Each of such persons has a right to use the water for all proper purposes, provided he does not thereby interfere with his neighbour's enjoyment thereof, and to do so — e.(/., by preventing the water from flowing to some proprietor below — is a tort for which an action will lie (z). But this does not apply where water flows under the surface, for in such a case a landowner is justified in sinking a well and preventing the water from percolating through to his neighbour's lands ("). Where one person is possessed of the surface of land Position when and another of the subsoil, each has an independent po^se^Ye7of property in respect of which trespass may be com- the surface and mitted. It is the duty of the owner of the subsoil to ^j^g subsoil of leave sufficient support to maintain the ground above, lai-i- and the owner of the ground above must not interfere with the soil beneath. Every owner of land has a right to the lateral support of his neighbour's land to sustain his own land unweighted by buildings, but nothing more, unless, indeed, a title is gained by prescription (h). A nuisance (c) may be defined as some act which un- Nuisances. lawfully and unwarrantably injures or prejudices the rights of another person ; thus, the carrying on an offensive or noisy trade (d), the excessive ringing of a peal of bells (e), the improper emission of smoke from ((/) Such persons are called riparian proprietors. (i) vSee notes to Stiry v. I'igot, Tudor's Conveyancing Cases, p. 127. (a) Chdsemore v. Richards, 7 H. of L. Cas. 349. This, it will be re- membered, is an instance of a damage without what is considered an injury in the eyes of the law — that is, damnum sine injuria. See ante, p. 4. (6) Addison on Torts, 61, 62. (c) From nuire, to annoy. The author has considered the subject of nuisances generally in this chapter, though many nuisances affect only the person, and do not therefore come under the heading of this chapter, " Of torts aff'ecting land." (d) St. Helen's Smelting Co. v. Tipping, 1 1 H. of L. Cas. 642. (e) Soltan X. De Held. 2 Sim-^N-S.) 133. 256 OF TORTS AFFECTING LAND. coDstitute a nuisance. a chimney (/), the suffering drains to get into an offensive state {g), and many other acts, have been held to be nuisances (li). But it must not be understood from the foregoing that because a person simply carries on a trade which is somewhat objectionable to his neighbour, that the carrying on of that trade must What acts are necessarily constitute a nuisance; to amount to a nuisance, the matter must go further than that, and it must be shown that there is some special injury resulting therefrom. Thus, a person may possibly have a material objection to a butcher's shop being set up next door to him, and it may deteriorate the value of his house, but this act will not of itself be a nuisance, though if by reason of the way in which the person conducts his business offensive smells penetrate to the next house, then undoubtedly it might be, for it is not every mere discomfort a person may experience that will constitute a nuisance, but an injury to a person's property will (^). Were it otherwise, the question of nuisance or no nuisance would frequently involve questions of fancy, of whether this person's delicacy made an act a nuisance which to another person in the same position would be no nuisance at all {k). It is uo But, on the other hand, where there is some act done defence to an -^yj^j^jj really docs amount to a nuisance to some person action ior a •^_ _ -i _ nuisance that or pcrsous, it is UO defence to say that the act is a benefiuoo^ther ^®^*^'^^ ^*^ other persons or to the community at large, persons or to or that the placc where it is carried on is very con- at^large!"""' ^ veuieut for the public. Thus, there are many trades of an offensive character that necessarily must be carried on, and as to which it would be a detriment to (/) Rich V. Basterfield, 4 C. B. 783. 1(1) Russell V. Shenton, 3 Q. B. 449. (A) For numerous instances of acts that will amount to nuisances, the btuilent is referred to Addison on Torts, ch. iv. sec. 1, pp. 161-193. (i) St. Helen's Smelting Co. v. Tippincj, 11 H. L. C. G50. {Ii) See also hereon, Broom's Corns. 708. OF TORTS AFFECTING LAND. 257 the public were they not followed ; but that fact does not at all justify a person in establishing such a trade where it prejudices another (I), he must seek out another place where he can carry it on without doing injury to others. And if a person comes to a place Although a where a nuisance is existing, he has as equal a right to to'l^'^n Js*!J^ce his legal remedies in respect of that nuisance as if he he still has a had been there first, and the nuisance had been after- It^abatwJ. '^^ wards established (m). Nuisances are divided into two classes, viz. : Nuisances may be either public or 1. Public nuisances, which are acts that affect the private. public at large, e.g., the digging of a ditch in a public road, or the causing of a great smoke ; and 2. Private nuisances, which are acts that affect only some particular individual or individuals, and not the public at large, e.g., an offensive smell which only penetrates to the next house, or a noise only affecting a neighbour. There are very material differences in the remedies Difterences in the case of a public and a private nuisance. A public iQ^thrremedy nuisance being a public wrong, affecting the community in respect of at large, a public remedy is applied to it, and (except * ^'^"^' in the case presently mentioned) a private remedy does not exist. The remedies for a public nuisance are two. The remedies viz.. Indictment and Information. An indictment is a !|"p'^^b}ir*^ ^^ written accusation laid against one or more persons of nuisance are . -, J? J i. 1 J. 1 Indictment and a crime or misdemeanor preterred to and presented jnf„i.mation. upon oath by the grand jury («), and there are many cases of public nuisances in which an indictment is the strictly proper course, e.g., the keeping of gunpowder (0 Bamford v. Turnlcy, 31 L. J. (Q.B.) 286 ; Stockport Waterworks Co. Potter, 31 L. J. (Ex.) 9. (m) Per Byles, J., Hole v. Barrow, 27 L. J. (C.P.) 208. (n) Brown's LaAV Diet. 186. 258 OF TORTS AFFECTING LAND. in large quantities in close proximity to populous neighbourhoods, the blocking up of or other injury to a public road, the keeping of a disorderly house, indecent bathing, or the carrying of persons infected with con- tagious disorders through the public streets in such a way as to endanger the health of the public (o). An information is a process preferred in the name of the Attorney-General or Solicitor-General for the purpose of restraining on behalf of the public the commission or continuance of some public injury, and is a remedy frequently resorted to in the case of ordinary public nuisances. As to a private nuisance, however, it is no offence against the public but only against a private individual, and, therefore, there is no public remedy, but a private one, in respect of it. This private remedy is exercised by bringing an action in which the plaintiff may simply seek damages for the injury that has been done to him by the commission of the nuisance, or he may seek an injunction to restrain the commission or continuance of the nuisance, or he may seek both, that is to say, damages for the injury already done him, and an injunction to prevent the continuance of such injury {f). If, however, a person has stood by for lay be barred ggmo time and acquiesccd tacitly or otherwise in the nv ills l^Cn6Sa doing of some act which constitutes a nuisance — e.g., if he stand by and sees a building completed which he knows is being erected for the purpose of carrying on an obnoxious trade amounting to a nuisance — he will lose his right to an injunction, though it would be otherwise were he not aware that the act would consti- tute a nuisance, or if the nuisance exceeded what he The remedy in respect of a private nuisance is an action. But a ] erson (o) See Addison on Torts, 218, 219. (//) Formerly it would usually have been an action for damages at law, or an injunction to prevent the injury in equity. Now, in consequence of the changes in practice by the Juiliciture Acts, 1873 and 1875, the proce.ss will in either case be equally by ;ni action in the High Court of Justice. OF TORTS AFFECTING LAND. 259 had reasonable grounds for believing it would amount to (q). It has been mentioned (r) that there is one case in where a which a private remedy will lie in respect of the com- pi'^'-"***^ person ■■• . '' . -■- . may maintain mission of a public nuisance, and that case is where an action in although it is a public nuisance, yet it more pre- ^'^"^'JIJ^J'^ judicially and injuriously affects some individual or nuisance, individuals than the public at large ; for in this case, as the public remedy only lies for the public at large, the individual or individuals so particularly affected may bring an action or actions in respect of the sjjecial injury done to him or them. This is well shown by a case commonly known as the Clapham bell-ringing case (s). There the plaintiff resided in a house ad- Soitm v. joining a Eoman Catholic chapel of which the defen- ^^ ^'^^'^■ dant was the priest. The defendant had caused to be rung at various times during the day peals of bells for devotional and other purposes connected with such chapel, and the noise was so great as to materially inconvenience not only the plaintiff but the public at large in the parish ; the ringing was in fact a public nuisance. The plaintiff sought an injunction against the ringing, and it was objected that it being a public nuisance he could not come as an individual and restrain it ; but it was held that although that was certainly the rule as regarded public nuisances generally, yet here the plaintiff, as a person residing close to the nuisance and therefore more prejudiciously affected than the public at large, was entitled to an injunction. Besides the before-mentioned remedies by legal pro- Abatement cess there is yet another course that can sometimes be °^ ^"isances. taken by a person affected by a nuisance, and that is the abatement of it, which may be defined or described as (7) Addison on Torts, 216. (»•) Ante, p. 257. (.9) Soltau v. De Held, 2 Sim. (N.S.) i;53. S 2 260 OF TOKTS AFFECTING LAND. a remedy by the act of the party, consisting in the A public removal and doing away of the nuisance. Here again nuisance • another difference between a public and a private can only oe i • i • i v abated "where nuisancc, for in one of the former kind it can only be LVects'the'"'^ abated where it does the person abating it some special abator. and peculiar harm (f), but in one of the latter kind the person prejudiced has always the right of abating it (m). Thus, in the case of an obstruction placed on a public road, strictly speaking a private person has no right to remove it unless he requires to pass that way, and then as it does him a special and peculiar injury he may ; but in the case of, say, the erection of a spout discharg- ing water on to a person's land, there, as that is a private nuisance only affecting that person, he has a right to remove it. The abatement The abatement of a nuisance must, however, be done of a nuisance pegceably and without danger to life or limb; so that must be done 1 J . cni-ii j.i' peaceably. although if a housc IS wrongtully built on another s hind (which will constitute both a trespass and a nuisance), the person affected is justified in pulling it down, yet he cannot do so if individuals are actually Notice usually in the housc at the time (x). And if to abate a nui- uecessary gance it is neccssarv to enter on another's land, notice before entering •^"' ^ J . . on another's must be givcn to the occupier of such land requiring lands to abate j^- g^.^^ ^^ remove it (?/), unless it is of such a kind as a nuisance. \j/' to render it positively unsafe to wait, when an im- mediate entry will be perfectly justifiable (z), provided it is made peaceably, or at the most with as little violence A person may as IS ncccssary under the circumstances. And although not go on g^ person may be justified in entering on another's lands to prevent a nuisance. ■ (<) Maijof- of CiAcheater v. Brook, 7 Q. B. 339. The law stated in the text is, however, subject to the various statutory powers which have now been given for the abatement of public nuisances in particular cases. The chief of these statutes are specified in Addison on Torts, 194. («) Earl of Lonsd'tk v. Nelson, 2 B. & C. 302. (4 Pern/ v. Fitzhoice, 8 Q. B. 757. (2/) I^J'J- (i) Per Best, .1., Lonsdale v. Aclson, 2 B. & C. 311. OF TORTS AFFECTING LAND. 261 to abate, he is not justified in so entering to prevent the commission of a nuisance (a). Waste may be defined as some act committed by a iii. Waste. limited owner of an estate exceeding the right which L'ehmtion. he has therein ; it does not appear to be strictly correct to say that it is some act which tends to the deprecia- tion of the inheritance, nor to say that it is some havoc or devastation, for (as will be presently noticed {h) ) an act which does not really injure the property, but on the contrary improves it, may yet amount to waste. As to who are liable for waste, tenants for life, for years. Persons liable at will, or at sufferance are ; but a tenant in tail is not, ^°^" ^^''^**^'- because he can at any time bar the entail and make himself absolute owner of the property, unless he be a tenant in tail after possibility of issue extinct, and then, as he cannot bar the entail, he is liable for that kind of waste called equitable waste. A tenant in fee simple is of course not at all liable for waste, unless, indeed, he be a tenant in fee with an executory devise over (c). Waste is divided, with reference to the nature of the Difterent kinds acts done, into two classes, viz. : vfa.ste. 1. Voluntary waste ; 2. Permissive waste. And it has also been commonly divided, with reference to the remedy in respect of it, into two other classes, viz. : 1. Legal waste; 2. Equitable waste. (a) See further as to Abatement of Nuisances, Addison on Torts, 194— 201 ; Broom's Corns. 220-222. (6) Post, p. 262. (c) As to the different kinds of tenancies above mentioned, and the powers of such tenants in respect of waste and otherwise, see Williams on Real Property. On the subject of waste generally, see also Leiois Bowles^ Case, Tudor's Conveyancing Cases, 27, and the notes thereon. 262 OF TORTS AFFECTING LAND, Distinction between voluntary and permissive waste. And though now, in consequence of the Judicature Act, 1873, as will be presently noticed (cZ), there is no fnrtlier distinction in the remedy, yet the names of legal and equitable waste will undoubtedly continue to be used, at any rate for a very long time. Voluntary waste is where the waste consists in the active doing of something, whilst permissive waste is a mere passive act. Thus, instances of the former would be the pulling down of a house or premises, the cutting down of a tree, the opening of new mines or gravel- pits, or the turning of ancient meadow land into arable land; the latter would be the suffering a house or premises to go to ruin through lack of due repairs. All the instances above given of voluntary waste neces- sarily tend to the depreciation of the inheritance, and amount to havoc or devastation, but voluntary waste may be committed though it does no real injury to the inheritance or even improves the estate (e) ; thus, for instance, the limited owner of a house, as for life or for years, has no right to pull it down and rebuild it, or to materially alter it, even though such rebuilding or alteration may really be an actual benefit by increasing the value of the property. Waste ijy fire. If a fire takcs place and the premises are thereby burnt down or injured, this will be waste if either done wilfully by the limited owner or his servants or agents, or through his or their negligence (/). To constitute voluntary waste the act need dejire- ciate the pro- perty. The remedy for waste. For all ordinary acts of waste, the person injured thereby had his remedy at law for damages, and in equity for an injunction either to restrain threatened waste or the continuance of waste already commenced ; and by the Common Law Procedure Act, 1854 ((/), id) Post, p. 263. (e) Addison on Torts, 2.')7, and see notes to Lewis Bovdcs' Cisc, Tudor's Conveyancing Cases, 27. ( /■) Addison on Torts, 256. (tj) 17 & J8 Vitt. c. 125, s. 7'J. OF TORTS AFFECTING LAND. 263 power was also given to the courts of common law to grant an injunction, and by a still later Act (h) power was given to the courts of equity to award damages. Now under the provisions of the Judicature Act, 1873 (i), the remedy for either an injunction or damages, or for both, is by action in any division of the High Court of Justice. Now as to the other division of waste, viz., legal and Distinction equitable. Waste was said to be legal when there was ^J^tween legal ■■■ ^ o and equitable a remedy at law for it, and therefore all ordinary cases waste. of waste are, whether voluntary or permissive, equally legal waste. But waste was said to be equitable when it was only recognised as waste and relieved against in equity. It occurred in this way : If an estate was given to a limited owner expressly without impeach- ment for waste, at law he was allowed to commit with- out restriction any act of waste he chose, this being indeed strictly according to the manner in which it was given to him, but in equity, notwithstanding it was so given, the Court would interfere to prevent the pulling down of the family mansion-house or the cutting down of ornamental timber, such acts being considered by the Court to be either malicious, extrava- gant, or humoursome, and this was called equitable waste. As to the remedy in this case, the distinction Provision of is certainly now done away with by the Judicature '{"'^'^{^^"o® Act, 1873 (/r), that statute providing (/) that " an to equitable estate for life without impeachment for waste shall not ^'^^^^• confer or be deemed to have conferred upon the tenant for life any legal right to commit waste of the descrip- tion known as equitable waste, unless an intention to confer such right shall expressly appear by the in- strument creating the estate." This provision arises (h) 21 & 22 Vict. c. 27. (0 36 & 37 Vict. c. GG. (k) Ibid. (0 Sec. 25 (2). 264 OF TORTS AFFECTING LAND. naturally from the union effected by the Act of the dif- ferent courts, for it would have been an anomaly to have allowed a remedy for this kind of waste to have existed in the Chancery Division of the present High Court of Justice and not in the other divisions, and therefore now, whatever is the nature of the waste committed, the action in respect of it can be commenced indis- criminately in any division of the High Court, but, notwithstanding this, wrongful acts committed by limited owners holding without impeachment for waste would yet appear to be properly described as equitable waste (m). It was stated at the commencement of the present chapter that trespass, nuisances, and waste were the most ordinary and important of torts affecting land, and of these instances might be enumerated and dwelt upon to great length, but to do this is not the object of the present work, neither does space permit. The student will also have noticed that various points touched upon pertain more especially to conveyancing and the law of real property, and such matters have therefore been considered as cursorily as possible. (m) As to equitable waste, see Garth v. Cotton, 1 White and Tudor's Equity Cases, 697, and the notes thereon. 265 CHAPTER III. OF TORTS AFFECTING GOODS AND OTHER PERSONAL PROPERTY, AND HEREIN OF THE TITLE TO THE SAME. Torts to goods and other personal property mainly Toits to goods, come under one of two divisions, viz, : (1) Trespass, underiht which is called tresj^ass de bonis asportatis ; and (2) heads of tres- Conversion, The former may be defined as the wrongful aspo,^a^is"or meddling by a person with the goods of another, either conversion. by removing them or otherwise dealing with them {n) ; and the latter as the removal by a person of goods from the possession of another with the design either of depriving that other of them, or of exercising some dominion or control over them for his own benefit or the benefit of some third person (o). We will consider these tortious acts in the following Mode of con- wav ■ sidering torts '' ' to goods, &c., adopted in 1. The title necessary to enable a person to sue in t^is chapter, respect of a tort. 2. The distinction between trespass and conversion, and particular cases of each. 3. Justification of the tortious act. 4. Some miscellaneous points connected with the subject. (h) See Addibun ou Torts, ol8, 319. (o) Ibid. 320. 266 OF TORTS AFFECTING GOODS 1. Title. Possession raises a presumptiou of title. The mere fact of a person having goods in his pos- session generally raises a presumption that they are his property, and that he has a perfect title to them, so that he can dispose of and deal with them to the fullest extent ; and generally speaking the mere fact of hare possession constitutes a sufficient title to enable the party enjoying it to maintain an action against a mere wrongdoer (p) ; but this is not always so, for a person may have possession of goods, and yet have no real title to them, or an imperfect one. by market overt. As to stolen As to stolcu goods, the thief naturally has no good goods. |.-^g ^^ them, and the law is (except in the case of bills of exchange, promissory notes, and other negotiable instruments (q)) that he can give no title to them except by a sale in market overt {i.e., open market), and not even then if the thief is prosecuted to convic- What is meant tion. By a salc in market overt is meant selling goods in open market as opposed to selling them privately. In the country, the market-place or piece of ground set apart by custom for the sale of goods, is in general the only market overt there ; but in London and in t U ul Ct t4>f,u^ i/uJ^t other towns, when so warranted by custom, a sale in an TtUi^'-ti^^L^ ^'^^^^ ^^^P of proper goods is equivalent to, and in fact ,*^^^ TKr^TTTH^ge 'amounts to, a sale in market overt (r). This advantage of a sale in market overt existed at common law (s), and is of material importance, enabling as it does a person to give a good title to goods where he could not have done so by a private sale of them ; but it must also be carefully borne in mind, as stated above, that there is one case in which even this kind of sale by a wrongful owner will not have this effect, it being l.xs>. ot" a sale in market overt existed at common law. (;/) 1 S. L. C. 358; per Lord Campbell, C.J., in Jeffries v. Great Wcstem By. Co., 5 E. & B. 805. (7) As to which, see ante, pp. I.'jO, 131, and the case of Miller v. Race there referred to. (r) Brown's Law Diet. 226, 227. (s) See the case of Market Overt, Tudor's L. C. 5Ier. Law, 713, and alho see Cram v. Loudni Duck Co., 33 L. J. (Q.B.) 224. AND OTHER PERSONAL PROPERTY. 267 provided by statute (t) that where a person shall be 24 & 25 Vict. prosecuted for a felony or misdemeanor in respect '^' ^' ^' of goods or other personal property on behalf of the owner or his representatives, and shall be convicted thereof, the property in respect of which the offence is committed shall be restored to the owner or his representative, and the Court before whom the cri- minal offence is tried may order their restoration. It has, however, been decided that this power given to such Court is not exclusive, but only cumulative, and that the effect of the Act is to revest the right of pro- Effect of this perty and of possession in the owner or his represen- tative without any such order, so that he has a right to require the person having possession of the stolen pro- perty to deliver it up, and if he does not do so, to sue him for it (u). And further, on the effect of this Act, a very recent case may be noticed, in which it was decided that although on conviction under the before-mentioned Act, the property in goods revests in the owner, yet it only revests on the conviction, and the property does not relate back to a period previous to the conviction, so that the defendants having bought goods bond fide of the person convicted, and sold them again before con- viction, were held not to be liable to the plaintiffs (the owners), for the proceeds of the sale of the goods {x). And as to one particular kind of property, viz., a Special pro- visions as to sale of a horse. horse, it is expressly provided that even although ^'is'°°'* '^^ *" bought in market overt, a sale of it will confer no further title than the vendor had, unless it has been exposed there for sale for an hour between ten in the morning and sunset, and also the price, colour, and marks of it, together with the names, descriptions, and abodes of the buyer and seller, have been taken down by the book-keeper ; and even if these formalities (0 24 & 25 Vict. c. 96, s. 100, re-enacting 7 & 8 Geo. 4, c. 29, s. 57. ('0 Scatter.jood v. Sykedcr, 19 L. J. (Q.B.) 447. (a;) Lindsty v. Cundy, 45 L. J. (Q.B.) 381. 268 OF TORTS AFFECTING GOODS are complied witli, if the horse has been stolen, the rightful owner may at any time within six months after the sale recover it, on tendering to the person possessed of it the price he has bond fide paid for it (?/). Kishts of a A pcrson who has found goods does not acquire any tinderof good . f^ljg^l^i^Q title by such finding, but he does acquire a qualified title that will be good against all the world except the rightful owner or his representatives. This Armory v. "ivas decided in the important case of Armory v. Deiainirk. Delaiiiirie (2). There the plaintiff", a chimney-sweeper's boy, had found a jewel, and taken it to the shop of the defendant, a goldsmith, to know what it was ; he there delivered it to the defendant's apprentice, who, under a pretence of weighing it, took out the stone, and the master, the defendant, offered him, the plaintiff", three- halfpence for it. On his refusing to accept this, and requiring to have the jewel back, the socket was deli- vered back to him without the stone, and this action was brought in respect of the wrongful conversion, for the recovery of the jewel, or for damages. It was objected that the plaintiff" had no title to enable him to sue in respect of the wrongful conversion, but the Court decided that he might do so, as though he had no abso- lute title to it, yet he had a title against everyone but the rightful owner. So also where a person picked up a parcel of bank notes in the defendant's shop, and temporarily deposited it with the defendant to restore to the true owner when he was ascertained, and no owner appeared to claim them, it was held that the original finder might recover them from the defen- dant (a). These cases illustrate the rule already stated, that bare possession is generally sufficient title as against wrongdoers. Treasure- Any money, coin, gold, silver, plate or bullion found trove. (v) 2 & 3 P. & M. c. 7 ; 31 Eliz. c. 12. (x) 1 S. L. C. ■dhl ; 1 Strange, 504. (a) llridijes v. Hawhcsworth, 21 L. J. (Q.B.) 75. AND OTHER PERSONAL PROPERTY 269 (trouve) in the earth or sea, tlie owner whereof is un- known, is called treasure trove. The property therein, and the title thereto, under different circumstances, vests either in the Crown, the lord of the manor within whose limits it is found, or the finder (b). A person purchasing goods from one against whom a a judgment judgment has been signed gains a perfect title to such )|]','g\j^t|g l^^^^ goods unless they are actually taken in execution, or goods. he has, at the time of acquiring his title, notice that a writ of execution is lying unexecuted in the hands of the sheriff, under which the goods might be seized (c). A person purchasing goods from one who has been actually adjudicated a bankrupt can gain no title to them, nor can he after an act of bankruptcy and before adjudication, unless he has bought them bond fide without notice of the act of bankruptcy (d). In animals of such a nature as horses, cows, sheep. Property in &c., a person may of course have an absolute property, j^'V"^'^^'' ''*"'* but in animals of a wild nature and not ordinarily in man's dominion, called animals ferx nature, he can only gain a qualified property, as by taming them, or their being on his land, or their being so young as not to be able to get away, or by reason of his being pos- sesssed of a forest, chase, or rabbit-warren. Also in fish a person may gain a title by harpooning or hooking them (e). Where a person leases his lands to another without Property ia reserving the game, it belongs by the common law to fo^'ies^erat the tenant ; but by the principal Game Act (/), it is common law, provided that in all cases of tenancies existing before ^^* "^"^ ""^^■' the passing of that Act {(/), the landlord shall have the (6) Brown's Law Diet. 364, 365. (c) 19 & 20 Vict. c. 97, s. 1. (d) 32 & 33 Vict. c. 71. (e) Addison on Torts, 334, 335. (/) 1 & 2 Wm. 4, c. 32. (g) 5 Oct. 1831. 270 OF TOETS APFECTIKG GOODS right to the game except such right has been expressly granted or allowed to the tenant, or a fine shall upon the granting or renewal of the lease have been taken (h). Under this Act the occupier for the time being of lands has the sole and exclusive right of killing and taking the game upon the land, unless such right be reserved to the landlord or any other person. Where any land- lord has reserved to himself the right of killing game upon any land, it is lawful for him to authorize any other person or persons who shall have obtained an annual game certificate to enter upon such land for the purpose of pursuing and killing game thereon (^). II. Distinction The distinction between the wrongful acts of trespass trespass to ^''^^ convcrsiou somewhat appears from the definitions goods an.i already given of each of those acts (k), and it is well goods!*''" ^' shown in the following passage from Mr. Addison's work on Torts, It is there stated (I) : " If a man who has no right to meddle with goods at all, takes them and removes them from one place to another, an action may be maintained against him for a trespass, but he is not guilty of a conversion of them unless he removed the goods for the purpose of taking them away from the plaintiflf, or of exercising some dominion or control over them for the benefit of himself or of some other person. Thus, where the plaintifi" and defendant, who were porters on the Custom House quay, had each small boxes in a hut on the quay for storing small parcels of goods until they could be put on board ship, and the plaintiff placed some goods in the hut in such a manner that the defendant could not get to his box without removing them, which he accordingly did, but forgot to put them back again, and the goods were lost, it was held that the defendant had a right to remove the goods, and so far in no fault ; but as he had not returned (/») 1 & 2 Wm. 4, c. 32, s. (0 Sec. 11. (k) Ante, p. 265. (0 Page ?,2(). AND OTHER PERSONAL PROPERTY. 271 them to the place where he found them, there might he ground for an action for a trespass in meddling with them, hut that th-^re was no conversion of ihem, as the defendant had not in anywise disturhed the plaintijf^s dominio7i or ownership over the property" From this the distinction between these two torts is very mani- fest, and it will he noticed that the conversion of goods is an act going beyond a mere trespass to them. Numerous instances of trespass might be given ; instances of thus in the case of carriers of goods dealing wrongfully ^^J^llg^'''^ ^^ with the goods they are conveying, or innkeepers, here are common cases of trespass for which an action will lie {m). So also if a wrongful distraint is made on goods, this is a trespass {n). If one person lends out to another or gives to another Duty of to carry any article of a highly dangerous character, [n^^aan^fTOus' or which, though not naturally dangerous, has yet such goods to be defects as to make it dangerous, of which fact he is or llggpfn ' °'" ought to be aware, he is liable to any injury done to animals wiiich property thereby (o). And any person who keeps ^Yciotnjury. animals or other creatures which may escape and do injury to property, is liable for any injury occasioned by them {p), for it is the duty of the owners to keep such creatures with special care, so that they may do no injury. In the case of creatures which are by their very injury by nature likely to do injury, the owner is always liable f'^i'.°^'°"* J J J ' ^ J ^ animals, ami for any damage done by them ; but in the case of animals animals not not of such a character, to make a person liable for fg).o")ouJ (m) See as to Carriers, ante, p. 91, ct scq. ; as to Innkeepers, ante, p. 97, e< seq. (u) As to which, see ante, p. 63, and Semayne's Case there referred to ; also as to when a person will be a trespasser ah initio, see ante, pp. 64, 65, and the Six Carpenters' Case there referi'ed to. (o) Blakemor v. Bristol and Exeter Bi/. Co., 27 L. J. (Q.B.) 167. ( p) Bi/lands v. Fletcher, L. R. 3 H. L. Cas. 330. 272 OF TORTS AFFECTING GOODS injuries to property done by them, a previous scienter or knowledge of the creatures' mischievous propensities must be shown. This is shown more particularly with regard to injuries to the person {q), but it has also application to injuries to personal property. On the above principle, therefore, that the scienter of the owner must be shown, it was formerly held that if a man's dog strayed and trespassed on another's land, and injured, by biting or worrying or otherwise, that other's sheep or cattle, unless the owner could be proved to have known that his dog had previously so acted, he was not liable, because it was said the worrying and killing of sheep is not in accordance with the ordinary instinct and nature of the animal (r). The contrary is however now the law, it being enacted (s) that " the owner of every dog shall be liable in damages for injury done to any cattle or sheep by his dog ; and it shall not be necessary for the party seeking such damages to show a previous mischievous propensity in such dog, or the owner's knowledge of such mischievous propen- sity, or that the injury was attributable to neglect on the part of such owner " {t). Damages, where not exceeding £5, are under the provisions of this Act recoverable summarily before a justice or justices in petty sessions. It will be noticed that the words used in the Act are injuries to " cattle and sheep " only, so that as to injuries to animals not coming under those designations, or to other personal property, the rule as to the necessity of the scienter of the owner still remains law, e.g., in the case of an injury done by one dog to another, this must be proved. It has, however, been decided (certainly as it would appear giving a somewhat extended meaning to the (ff) See this noticed in chapter vi. " Of Torts arising particularly from negligence," post, p. 327. (r) Addison on Torts, 23. (s) 28 & 29 Vict. c. 60. \t) Sec. 1. AND OTHER PERSONAL PROPERTY. 273 word), that the term " cattle " in the Act does include horses (u). The doctrine of scienter in relation to injuries to The doctrine animals has heen held not to he applicahle to cases where JJoeTno/ai.piy there is an independent ohligation hy contract to take when there is reasonable care ; so that where the plaintiff entrusted esirtinfly"" the defendant with a colt to take care of, and the de- contract. fendant put it in a field near to where he kept a bull, and the bull gored the colt, it was held that the defendant was liable although he had no scienter of the bull's viciousness, and in fact had always believed it to be a perfectly gentle animal (x). It has been stated that in creatures ferse naturse a person can only gain a qualified property, and it follows that at times they may be the property of one man and at other times the property of another. To kill or injuries to otherwise injure a wild animal on another person's land ^'''''^ ammuis. is a wrongful act in the nature of a trespass to his goods, for he has a qualified property in them ratione soli, but after they have left such person's lands, then, his property in them ceasing, it is no trespass (y). It also follows that though such creatures may be a man's property whilst on his lands, yet if they leave his lands and do injury to his neighbour's property he is no trespasser, for he has then no property in them. Therefore, though a person encourages the growth and propagation of wild rabbits on his estate, or of pigeons, and the rabbits or the pigeons escape and do injury, yet he is not liable ; but the person on whose lands they come has a perfect right to kill them (z). Although a person is not liable as a trespasser for if a dog of a mischievous propensity strays and does injury, the (m) Wright v. Pearson, L. R. 4 Q. B. 582. owner is liable Ix) Smith V. Cook, 45 L. J. (Q.B.) 122. (y) Williams on Personal Property, 21. (») Addison on Torts, 267. 274 OF TORTS AFFECTING GOODS his dog straying on to his neighbour's lands (a), yet if it be of a peciiliarly mischievous propensity which is known to him, he is liable for any injury it may do to his neighbour's property (h) ; and if a dog whose nature it is to destroy game, or who has been trained for that purpose, strays on to another's land and does injury in that way, the owner is liable in respect of all such injury (c). It is a tortious To kill or injure any creature the property of another act to kill or ^g ^ tortious act, for which the person so killing or injure another ..... •■■ " man's dog injuring will be liable, even although the creature be or cat, ^^Yj a dog or a cat. And it will also be a tortious act to kill the dog of another, although it is actually known to be of a ferocious disposition, and is found going at large ; unless, indeed, it is actually attacking a person at the time when it is killed (d). Even though A pcrsou is uot justified in killing his neighbour's It js straying, ^^g ^j, ^^^ which he finds on his land unless the animal is in the act of doing some injurious act which can only Injury done be prevented by its slaughter (e). And it has been by traps. j^gj^ |.|-^g^^. ^£ g^ persou scts on his lands a trap for foxes and baits it with such strong-smelling meat as to attract his neighbour's dog or cat on to his land to the trap, and such animal is thereby killed or injured, he is liable for the act, though he had no intention of doing it, and though the animal ought not to have been on his property (/). Instances of Numerous instances might also be given of conver- conversion. gion, e.gf., thc appropriation of goods by a bailee, or where one finding anything refuses to give it up to the (a) See ante, p. 253. (6) Addison on Torts, 267. (c) Head V. Edwards, 17 C. B. (N.S.) 245. Id) Addisoi) on Torts, 192. (e) Ibid. Hli9. (/) Townsend v. W-ithen, 9 East, 277. AND OTHER PERSONAL PROPERTY. 275 real owner on demand made ; or where a tenant severs fixtures from the premises of which he is tenant and appropriates them to his own use. On " conversion " the student is again referred to the distinction already- noticed between it and a simple trespass {(/). A person can be guilty of an act of conversion by his Conversion agent ; and the ratification of a prior act of conversion "If ^^nt'I act originally unauthorized will amount to a conversion by and i-ven i)y .1 J."!" ■ -J. • 1 J J.1 1 • ratification. the person so ratiiymg it, provided the person doing the act professes at the time to be doing it as his agent, and this is an ordinary doctrine applying not merely to conversion, but to other matters generally (h). Thus if A. meddles with the goods of B. and takes them away, professing to act in so doing for C, who gave him no instruction or authority to do so, but C. afterwards ac- knowledges and ratifies the act, it amounts to his con- version. But, in order to make a ratification have this efi'ect, it must be with the full knowledge of the nature of the act committed, or with an intention to adopt that act at all events («), so that where a land- lord gave a broker a warrant to distrain for rent, and the broker took away and sold a fixture and paid the proceeds to the landlord, who received them without inquiry, but yet without any knowledge of the broker's irregularity, it was held that no such authority appeared as would sustain an action against the land- lord (k). If a person unlawfully meddles with and takes away when a the goods of another, an act of conversion is at once tiem.-inJ is committed, and an action for such conversion may enable a be maintained immediately against him. But if goods v^^'f"^ }° , ii?n • ir- maintain an come to a person s hands lawiully, m the first instance, action for and he detains them, here, to enable the owner to main- conversion. (^fj) Ante, p. 265. (A) See 1 S. L. C. 362, 363 ; and see as to ratification of an agent's act generally, ante, p. 102. (0 Ibid. 364. {k) Freeman v. Eos/ier, 13 Q. B. 780. T 2 276 OF TOETS AFFECTmG GOODS tain an action for conversion, he must first make a demand for sncli goods, and tlien, on refusal to deliver them, be may sue for the conversion (/). This demand for, and refusal of, the goods furnishes evidence of a conversion of them either then or at some time previously (m). When a There are, however, some cases in which a person is 'ultHierin justified in refusing to deliver up goods in his posses- refusing to sion though he is not the owner of them, and in which to'throw°ner. ^^^ refusal will not render him guilty of a conversion. Thus, if goods are deposited in a person's hands for another, but subject to a certain charge in some third person's favour, here the depositee is justified in refusing to deliver the goods over to the owner of them until he has ascertained whether such charge does or does not exist. And, of course, with still greater force, if the depositee has himself some claim in the nature of a lien, he is justified in retain- ing the goods until such lien is satisfied. If, how- ever, the lien is disputed, and the owner brings an action to recover the goods, he can, under the Judi- cature Act, 1875, at once obtain possession of them on paying into court the amount of the lien to abide the result of the action (n). And if a person has goods of another and leaves them with his servant, and demand of them from the servant is made by the owner, here the servant is justified in refusing to deliver them up until he has had an opportunity of receiving his master's instructions upon the subject (o). Interpleader, Where a per SOU is in doubt which of two or more what It IS, &c. pej-gons demanding goods of him is the true owner to whom he ought to deliver them, the course open to him (/) Thorogood v. Robinson, 6 Q. B. 772. (m) Wilton v. Girdlestone, 5 B. & Aid. 847. In)) .38 & 39 Vict. c. 77, Order ui. r. G. (o) Addison on Torts, 325-327. AND OTHER PERSONAL PROPERTY. 277 is to interplead, that is, take certain steps to have it decided between those parties which of them is the one entitled. There was always a process of inter- pleader in equity, but this necessitated the person in doubt filing a bill there, so that, if an action was brought against him by one of the parties, and he did not know whether that person or the other was entitled, his only course to obtain relief was to file a bill of interpleader. An Act was therefore passed, i & 2 Wm. 4, known as the Interpleader Act ( jj), which provides that '^' ^^* upon application by a defendant in an action of assump- sit, debt, detinue, or trover, showing by afiidavit that he himself claims no interest in the subject-matter of the suit, but that he believes or supposes it to be in some third person, that he does not in any way collude with such third person, and that he is ready to bring into court, or pay, or dispose of the subject-matter of the action as the Court may direct, the Court may order the third j^erson to appear and maintain or relinquish his claim, and in the meantime stay pro- ceedings in such action (i'i i. ^ the person to in rcspcct of it. But lu the case 01 a bailment oi (e) Brown's Law Diet. 302. ( f) Broom's Corns. 218, 219. AND OTHER PERSONAL PROPERTY. 281 goocls, there being one interest in both the bailor and But in case the bailee of them, the rule in the case of many tortious sometimes acts is that either or both of them may maintain an bailor auJ action in respect of the tortious act {(/). Thus, if goocls both'sue.*^ are let out by A, to B., and a trespass is committed in respect of them by a third person, C, whereby they are destroyed or permanently and materially damaged, B. may sue in respect of the direct loss to him, and the bailor A,, who is entitled after the determination of the bailment, may sue for the ultimate injury done to him. To entitle the bailor, however, in such a case to sue, the injury done must be of a permanent nature (h). But where a conversion takes place in respect of Where the goods the subject of a bailment, and the bailee has a ^^^^ gyg"'^ right to them for some fixed and specific period yet unexpired, here the bailor cannot sue in respect of the conversion, but the action must be by the bailee ; unless, indeed, the very conversion occurs by the tortious act of the bailee which determines the bail- ment (t). Thus, for instance, if furniture is let out for a year by A. to B., and wrongfully taken away and appropriated by C.j the bailor A. cannot sue for this conversion, for the bailee B. is the person to sue ; but if B. wrongfully sells the goods to C, who takes possession of them, this determines the bailment, and the bailor A. can at once sue C. The legal remedy for a trespass was originally Remedy for either by action of trespass for damages for the direct trespass to , . goods. injury done, or an action of trespass on the case for the injury, not direct, but consequential, and this was, in fact, the only difference in the two forms of action. ((/) Per Parke, B., Beg. v. Vincent, 21 L. J. (N.C.) 109 ; see also ante, p. 299. (A) Hall V. Pickard, 3 Camp. 187 ; Mears v. London and South Western By. Co., 1 1 C. B. (N.S.) 850. (0 Feym v. Bittkston, 7 Ex. 159. 282 OF TORTS AFFECTING GOODS The system of pleading under the Judicature Act, 1875 (/.•), now, however, entirely does away with all such distinctions ( and, indeed, this distinction of forms of action had ceased long before), and in respect of a trespass committed to goods, the proper remedy is by an action to recover damages for the tortious act. RemoUes for With regard, however, to cases in which the tortious wrongiui con- ^^^ amounts uot merely to an act of trespass, but to version. •' . i i i • the conversion of goods, that is, to the actual taking away and wrongful appropriation of them, or where goods are wrongfully detained by a person from the true owner, though all distinctions in the forms of action are now quite done away with, yet it will be useful to note the former remedies and the present Former .iction courso. In cases of couversion, the action brought was of trover. ^^^ action of trovcr (so called because founded on the supposition, generally a mere fiction, that the defendant had found the goods in question (Z) ), and the claim of the plaintiff was not for the return of the goods, but to recover the value of them. In the case of wrongful conversion now, though there is no such thing as an action of trover, yet the remedy may still well be called an action in the nature of an action of trover, being to recover the value of them as formerly. Former action But wheu goods wcro wi'ongfully detained from a of detinue. person, there was another action that he might bring, called an action of detinue, being to recover either damages for their detention or the actual return of the goods detained (m). It was in the option of the defen- dant, on a verdict against him, either to return the goods or pay their value; but by the Common Law Procedure Act, 1854 (n), it was enacted that the plaintiff (/O 38 & 39 Vict. c. 77. (0 Brown's Law^ Diet. 366. (m) Ibid. 118. (n) 17 & 18 Viet. c. 125. AND OTHER PERSONAL PROPERTY. 283 might apply to the Court or a judge to order execution to issue for the return of the particular goods without giving the defendant the option of retaining them on paying their value, and the Court or a judge might at discretion so order (o). So now, therefore, though the Judicature Act, 1873, has, as before stated, entirely done away with all dis- tinctions in forms of actions, yet an action may still be brought for the return of the goods detained, which may well be styled an action in the nature of an action of detinue. Where an injury has been committed to the goods and chattels of a person who then dies, the right of action revives to his executors or administrators, forming an exception to the maxim. Actio 'personalis moritur cum persona (p). (o) Sec. 78 ; see also jiost, part iii. ch. i. pp. 351, 352, and particularly note (s) as to relief always given in Chancery. (/>) 4 Edward 3 ; 25 Edward 3 ; and 43 Edward 3 ; see other exceptions to the maxim, ante, p. 252, and post, p. 330. 284 CHAPTEK IV. Torts to the person are more imjor- tant than torts to pri. perty. OF TORTS AFFECTING THE PERSON (q). "We have iu the two preceding chapters considered the subject of Torts to Property ; in this and the next chapter we proceed to the subject of Torts to the Person, which may be said to be still more important than torts affecting property, because every one does not possess property for a tort to be committed in respect of; but these torts affecting the person may equally be com- mitted on any one. The different torts affecting the person are numerous, and those which may most use- fully be considered appear to be the following : 1. Assault and battery. 2. False imprisonment and malicious arrest. 3. Malicious prosecution, 4. Libel and slander ; and 5. Seduction and loss of services. I. Assault auJ battery Definition of an assault. Assault and battery are always classed together, because they are acts closely connected, and, in fact, depending on each other, for though an act may be an assault without amounting to a battery, yet a battery must comprise an assault, and so it is most usual to find that an assault and battery take place simultaneously. An assault may be defined as the unlawful laying of hands on another person, or an attempt or offer to do (7) Some of the torts ranged under this head in the present chapter and the one next following are sometimes styled Torts affecting the Reputa- tion; but it does not appear necessary to introduce this further division in a work like the present, as torts particularly affecting the reputation neces- sarily more or less affect the person, for the reputation appertains to the jierson. OF TORTS AFFECTING THE PERSON. 285 a corporal hurt to another, coupled with a present ability and intention to do the act (r). A battery may Dofinition of be defined as the actual striking of another person, or ^ ^''^"^'T- touching him in a rude, angry, revengeful, or insolent manner (s). We will now proceed to notice the essen- tials to constitute an assault, and some instances of assault ; and then the essentials to constitute a battery, and the distinction between the two torts and their combination. To constitute an assault by a mere attempting or What acts will offering to do an act, it is stated in the definition that ^^ eonstitute there must be a present ability and intention to do the an assault. act attempted or off'ered to be done. This means that it is not sufiicient for a person to offer to do the act, unless he apparently is both able to and means to do it. Thus, " holding up a fist in a threatening attitude suf- ficiently near to be able to strike ; presenting a gun or pistol, whether loaded or unloaded, in a hostile and threatening manner, within gun-shot or pistol-shot range, and near enough to create terror and alarm ; riding after a man with a whip, threatening to beat him, or shaking a whip in a man's face," are all acts of assault (t), for the person in all these cases has the apparent power of doing the act he threatens to do, and the intention of doing it. But if, in the foregoing in- stances, though the person threatens the act, yet he has not the then present ability to perform what he threat- ens, e.g.. if, holding up his fist, he is yet not near enough to strike, or, presenting a gun or pistol, is out of gun- shot or pistol-shot range, here no assault is committed. Again, in any of these instances, even although the person has the ability to do the act he threatens to do, yet, if he shows from his words or conduct that he does not mean to do the act, e.ff., if he says, were it not for some (r) See Browa's Law Diet. 34 ; Read v. Coker, 13 C. B. 8G0. (s) Brown's Law Diet. 34. (0 Addison on Torts, 569, 570. 286 OF TORTS AFFECTING THE PERSON. An assault may be com- mitteil liy -i mere touching, however sliirht, Except in a few cases. cvcut he would strike or would shoot, here no assault is committed (w). The definition of assault also shows that a tort may he committed hy a mere touching or laying on of hands, and this is so however slight may he the touch- ing, for " the law cannot draw the line between different degrees of violence, and therefore totally prohibits the lowest stage of it, every man's person being sacred, and no other having the right to meddle with it in any, even the slightest manner " (x). There are, however, some few acts, consisting in the touching of another person, which from their very nature are not assaults, e.gr., if one has to push through a crowd, he has of necessity to touch others ; but, unless he does it with roughness or violence, this is no tort, but an act which he is justified in doing (?/). Instances of In the forcgoing remarks, some instances of assault cases held to ^^^^^ already been shown. The following acts have also be assaults. *' n p • i i • j been held to bo assaults, and lurnish apt instances : The riding after a person and obliging him to run away into a garden to avoid being beaten (z). The forcing a person to leave premises by threats of violence if he did not do so (a). Where two persons were fighting, and one of them accidentally struck a third person (h). This of course proceeds upon the principle that the person was doing an unlawful act in fighting. Had he not been doing so, then he would not have been liable for what was a (m) Addison on Torts, 570. (x) 3 Bl. Com. 120, (juoted in Broom's Corns. 674, 675. (?/) Addison on Torts, 570. (?) Martin v. Shoppee, 3 C. & P. 373. («) Bead v. Co/icr, 22 L. J. (C.P.) 201. (/^) Jaines v. Campbell, 5 C. & 1'. 372. OF TORTS AFFECTING THE PERSON. 287 pure accident ; so that where a person threw a stick which accidentally hit another, it was held that it was fair to presume that the stick was thrown for a proper purpose, and therefore that defendant was not liable (c). The cutting off of the hair of a pauper in the work- house by force and against his will (d). A person cannot be guilty of an assault by acting in An assault a merely passive manner : so that where a policeman cannot be •^ i- „ . . , committed obstructed persons from entering a room, it was held by a merely that this was no assault" by him (e). passive act. The definition of a battery (/) shows that the striking or touching must be in a rude, angry, revengeful, or insolent manner, to constitute it a battery. If, there- fore, the touching is not in this way, it will only amount to an assault. The distinction, therefore, between the two acts of Distinction assault and battery may be said to be that the assault ^'^^'^''fj^ '^'J rf T 1 assault and is a lesser onence than the other, that there may be a battery. an assault without a battery, by simply touching the person of another without any violence, or by a threat- ening without the carrying out of the threat ; but that in every battery there must have been an assault pre- ceding it, and therefore, in cases of battery, there is a combination of the two torts, which are rightly de- scribed together as assault and battery. Assault and battery may sometimes be of such an Definition of aggravated kind as to amount to an actual woundinc: of "^fy*^""' '"^""^ "" . o what will the person, or to constitute the offence called may- and will not hem. Mayhem (or maihem) has been described as " the '""°""^ *° '*^- (c) Alderson v. Waistell, 1 C. & K. 358 ; see also as to the principle stated in the above paragraph, ante, p. 279. (d) Forse v. Skinner, 4 C. & P. 239. (e) JoTics v. Wylie, 1 C. & K. 257. (/) Ante, p. 285. 288 OF TOKTS AFFECTING THE PERSON. violently depriving another of the use of such of his members as may render him the less able in fighting to defend himself or to annoy his adversary, e.g., the cutting off, or disabling, or weakening a man's hand or finger, striking out his eye or fore-tooth, or depriving him of those parts the loss of which in all animals abates their courage " {cj). But the doing of an injury that only detracts from a person's appearance is not considered as mayhem, but only as wounding, because it does not weaken him, but only disfigures him. An action may be brought here for an assault com- mitted abroad. MosUjn V. Fahr'ujas. Notwithstanding that an assault or battery may have been committed abroad, out of the jurisdiction of the court, yet the party injured has his remedy here (A) ; thus, in the case of Mostyn v. Fahrigas, just cited below, it was held that an action might be maintained against the governor of Minorca for an injury to the person of the plaintiff committed there. And although, in the case of a tort committed abroad, it happens that it could not, according to the law of the country where committed, be sued upon there until after certain penal proceedings had been taken in re- spect of it, yet, as that only goes to the procedure, it does not at all afi'ect the remedy here (i). Assault and battery may sometimes be justifiable. There are, however, many cases in which, though an assault and battery may have been committed, yet such acts may, under the circumstances, be justifiable, and such cases of justification may chiefly be ranged under two heads, viz. (1), Where done in defence of person or property ; and (2) Where allowed by reason of the de- fendant's peculiar position. Justifiable in defence of f»erson. Now, as to defence, this is a justification of a very (r/) Brown's Law Diet. 223, 224. (/t) Mostyn v. Fahrigas, 1 S. L. C. 658 ; Cowp. 161. (0 Scott V. Lwd Seymour, 1 H. & C. 219. OF TORTS AFFECTING THE PERSON. 289 extended nature, for not only is a person justified in striking another in his own defence, but also in defence of husband, wife, child, relative, or even neighbour or friend (k), and as these last terms are very wide, it seems almost, if not entirely, correct to say that a person is justified in assaulting another in defence either of himself or others. But the nature of the But the assault and battery done in defence must be carefully 'defence must •' . '' not be more observed, for some extreme act of defence being more thau is neces- than was necessary from the nature of the assault it was ^'^^^ ^^f "' *''^ •^ _ _ _ . circumstances. done in defence of, is not justifiable, e(j., if one attempts to hit another, that other is perfectly justified in ward- ing off the blow and striking a blow of the same nature in defence, but he is not justified in using some ofi'ensive weapon, and materially injuring the person, as by striking with a sword or knife (/). In every case in which justification on this ground is set up as a defence, the original act to prevent which it was necessary to resort to defence must be looked to, and a person is not justified in going beyond mere defence, and avenging himself, as by not being content with warding off a blow, but following it up by fresh and unnecessary blows. Where a justification for an assault and battery is set up on the ground of defence to the person, such defence is called a plea of aon assault demesne (ni). Assault and battery, also, in defence of one's property, justifiable also whether real or personal, is perfectly justifiable (n) ; for ''^ defence of if a person attempts to dispossess another of his goods, that other is fully justified in using means to prevent him doing so, and laying hands on him for that purpose. And so, also, if the attempt is to dis- possess another of his land, that other is justified (k) Addison on Torts, 602. {I) See Cockroft v. Smith, 11 Mod. 43, quoted in Addison on Torts, 574. (in) Brown's Law Diet. 335. (n) 3 Bl. Com. 120 ; see ante, pp. 254, 279. U 290 OF TORTS AFFECTING THE PERSON. But again the defence here must not be greater than is necessary under the circumstances. in committing an assault and battery for preventing the attainment of that object. If, however, a person obtains peaceable entry on another's land, the owner is not justified in forthwith assaulting him for the pur- pose of ejecting him therefrom, but he must first request him to go, and then, if he will not do so, proceed to eject him, using only as much force as is necessary (o). And here, again, must be noticed — as in cases of defence of the person — that the act in defence of one's property must not be of an excessive character, for if it is more than is necessary under the circumstances, then it is not justifiable, nor is it justifiable to do an act in defence of property which may manifestly tend to injure the party (p). And particularly it is pro- vided by statute {q) that any person causing to be set, or knowingly suffering to be set, upon his lands any spring-gun, man-trap, or other engine calculated to destroy life, with the intent of destroying or doing grievous bodily harm to trespassers, shall be guilty of a misdemeanor. Justifiable on Now, as to assault and battery being justifiable by account of a ^ yeason of a person's peculiar position. There are liar position, many cases in which the law gives a person a direct power of laying hands on the person of another and assaulting him, and a primary instance of this may be seen in the chastisement sometimes awarded to offenders by flogging. And, irrespective of any sen- tence of the law, a person, by the relationship in w^hich he stands towards another, has a justification for assault and battery committed on that person, e.g., E.g., a father a father naturally has a right to reasonably chastise with regard to his child. (o) Polkinhorn v. Wright, 8 Q. B. 197 ; ]ier Parke, B., Harvey v. Brydges, 14 M. & W. 442. (/>) Collins V. lienison, Say. 138 (7) 24 & 2.5 Vict. c. 100, s. 31, re-enacting 7 & 8 Geo. 4, c. 18. OF TORTS AFFECTING THE PERSON. 291 his children, and so, also, has a master to reasonably chastise his apprentices, and a schoolmaster his scholars, but the chastisement must not be excessive (r). A master or captain of a ship has also a right by virtue of his position to imprison or reasonably chastise any of the sailors who behave in a mutinous or disorderly manner, or refuse or neglect to obey his lawful and proper orders, but any chastisement must be reason- able (s) ; and a beadle, or other person employed in that capacity in a place of worship, is justified in laying hands on and forcibly removing from that place any person who by his conduct is disturbing the con- gregation (t). It necessarily appears that in actions for assault and Malice is not battery it is not at all essential that malice sliould ?^ ^^^JJ^J^i^* exist. Malice may, of course, be shown, and may and battery. operate to inflame the injury done, and increase the amount of the damages ; but a wanton, or thoughtless, or negligent act, without the slightest malicious intent, may equally constitute an assault and battery. Assault and battery may also be committed indirectly An assault and as well as directly ; thus, where the defendant threw bfcommTtted a lighted squib which fell on a stall in the street, and indirectly, the keeper of the stall for his own protection threw it off, and it then exploded aijd injured the plaintiff, it was held that the defendant, the original thrower, was liable, for, that a person is liable for the natural and probable consequences of his own act (u). So if a person in the street whips another's horse, and thus causes him to run over or otherwise injure any one, such person is liable for the assault and battery thus committed (;k). (r) See hereon, Winterburn v. Brooks, 2 C. & K. 16. (s) Broughton v. Jackson, 21 L. J. (Q.B.) 265 ; Noden v. Johnson, 20 X. J. (Q.B.) 95. (0 Burton v. Benson, 10 M. & W. 105 ; Williams v. Glenister, 2 B. & C. 699. (m) Scott V. Sheppard, 1 S. L. C. 477 ; 2 Blackstone, 892. (j?) Addison on Torts, 6. u 2 292 OF TOETS AFFECTINCx THE PERSON. Kemedies in A persoii may proceed either civilly or criminally in ns*aUt and respcct of an assault, and the period of limitation for battery. bringing any action in respect of such a tort is four years (?/). It has already been noticed, however, in considering the subject of torts generally, that sentence will not be passed in a prosecution for an assault if an action for the same assault is also pending ; that if a conviction on summary proceedings takes place that bars further civil proceedings ; and that if a magistrate dismisses a charge of assault his certificate of dismissal will operate to bar any further proceedings, civil or criminal, in respect of it (z). A wife cannot If a man assaults his wife, she has no right of sue her hus- ^ction ar'aiust him, her remedy being to prosecute him, band tor his i n i • i i tort committed or to apply lor him to be bound over to keep the peace, to her during ^j, ^^^ assault and battery may constitute cruelty coverture, , -.."^p*^..,.., . "^ sufficient to found proceedings for judicial separation. Even though It has been very recently decided that no action is she has since maintainable by a divorced wife against her former divorce. ' husband for an assault and battery committed during the coverture (a). What is stated in this paragraph applies not only to assault and battery but to any tort under such circumstances. II. F:dse False imprisonment may be defined as some unlaw- impn.sonment, ^^^^ detention of the person, either actually or construc- dennition ot. t/vT ■, Distinction tivcly (h). The dmerence between an actual and con- between an structive detention of the person is this, that while an const^u'cUve actual detention is a detention by forcible means, the detention. constructive is not, but may consist in a mere show of authority or force, e.^., if an officer informs a man that he has a legal process against him and that he must accompany him, and, accordingly, although no hand is (y) 21 J;.c. 1, c. 16, s. 3. (2) Ante, pp. 242, 243. (a) riitlli/js V. Baniett, 45 L. .1. ((».B.) (6) See Broom's Corns. 709, 710. OF TORTS AFFECTING THE PERSON. 293 laid on him, he goes with the officer, this amounts to an imprisonment (e). It being, therefore, understood what will constitute imprisonmont a false imprisonment, we will proceed to consider par- l^^^^ j"stih- ticular cases in which imprisonment is allowed by the law, so that it will not be a false but a justifiable and proper imprisonment. Firstly, it may be noticed that there are various per- Detention by a sons who are, from their position, naturally justified in P"'^°° ^'^cause . . ' . •■• ' •' "^ . of his position detaining certain persons to whom they stand in a as a father. peculiar relation, e.r/., a father his child, or a husband his wife, a commanding officer his inferior. Secondly, for criminal offences, persons are liable to Detention for be arrested and imprisoned, in some cases only by a ofl"i|™"^'^ warrant from competent authority for that purpose, and in some cases by any one without any warrant at all. A warrant is a precept under hand and seal to an Definition of officer to take up an offender to be dealt with according ^ warrant and ■i _ _ _ o mode ot acting to due course of law ('/). It is obtained on application thereunder. to a magistrate or justice, and is then delivered to a constable who makes the arrest, having it with him at the time to produce if required, as if he has not so got it with him he stands in the same position as if there were no warrant for his arrest (e). If a justice does an act within his jurisdiction, e.g., As to the granting a warrant to arrest an offender in respect of justice J '^ an act for which, had he been guilty, the justice would have had full power to grant it, he is not liable to any action in respect of it, unless the act was done mali- (c) Gramjer v. Hill, 4 B. & C. 212 ; Wood v. Lane, 6 C. & P. 774. (d) Brown's Law Diet. 383. (f) Galliard v. Laxton, 31 L. J. (M.O.) 123. 294 OF TORTS AFFECTING THE PERSON. ciously, and ■without reasonable and probable cause (/) ; but if he does an act without jurisdiction, e.g., sending an offender to prison, where he has, even although the offender was guilty, no power to imprison, he is liable quite irrespective of malice; but no action can be brought against him in respect of it until A month's after the conviction has been quashed {g). No ac- be'"ive'n be*fore ^^^^ ^^^' howcvcr, be brought agaiust a justice for action. anything done by him in the execution of his office, until one calendar month's notice in writing is given to him, with particulars of the intended action (/i), and he has then, before the action is commenced, a right to tender to the person injured a sum of money by way of amends, and, after action, to pay such sum into court either in addition to the previous tender or instead of the previous tender ; and if such sum is not accepted by the plaintiff, the fact of the tender and payment into court may be given in evidence at the trial, and the jury, if of opinion that the plaintiff is not entitled to damages beyond the sum so tendered and paid into court, shall give a verdict for the defendant, and the defendant's costs shall be paid out of the amount, and the balance, if any, paid to the plaintiff {i). Statute barred Any right of actiou against a justice for anything monthT ^^^^ ^y ^™ ^^ ^^® execution of his office, is statute barred after six months from the date of the act com- plained of having been committed. As to the A constable doing an act in pursuance of legal war- constablel ^^^* ^^ ^^^ liable to an action for false imprisonment, but if the warrant were granted without jurisdiction then the law was, formerly, that he in the same way as the justice granting it, and, indeed, all persons con- cerned in its execution, were liable to an action for (/) 11 & 12 Vict. c. 44, s. 1. (r/) Sec. 2. (h) Sec. 9. (0 Sec. 11. OF TORTS AFFECTING THE PERSON. 295 false imprisonment. A constable is, however, in such Special pro- a case now protected, it being provided that no action ^j!i|°^.5°'^ ^^'^"^ shall be brought against him before demanding a copy when acting of the warrant under which he acted, and that if that "°^ "" '"* ^^''^'' is given, then, although the person aggrieved may bring his action against the constable and the justice grant- ing the warrant, the production of such warrant shall entitle the constable to a verdict (k). A constable. He is usually when liable to an action in respect of anything done '^^J^l^led to . •■• ./ o notice before in the execution of his office, is usually entitled to action. notice before action brought (l). A person who lays a complaint before justices, and The person thereupon obtains a warrant, is not liable to an action °^t''^'"'^g ^ •■■ . . ' . warrant is not for false imprisonment, though it turns out that the liable for false complaint was erroneous, or there was no jurisdiction ^ut^ma'^T'^*' for the granting of the warrant (/»). He may, however, for malicious sometimes be liable for malicious prosecution (w). piosecution. A constable may not generally arrest another without Cases in which a warrant for that purpose, but there are some special ^ ^o'^'^^-'^'^'f •'•■'•'. J- may arrest cases in which he may. Particularly he may do so when without war- he sees a felony committed, or has reasonable ground for ^'°'^^' suspecting that a felony has been committed, and also reasonable ground to suspect that the person he arrests is the committer of the felony (o). If a person makes a reasonable charge of felony against another, a con- stable is justified in arresting such alleged culprit and is not liable to any action for false imprisonment for so doing, though the person making the comj)laint and requiring the arrest may be so liable (p). The follow- ing are also cases in which a constable is justified in (k) 24- Geo. 2, c. 44, s. 6. (?) See Addison on Torts, 588, et seq. (ill) Broom's Corns. 718. In) Post, p. 300. (o) He may not, however, arrest without warrant merely on suspicion of a misdemeanor. (/?) Broo""'-' Corns. 715, 716. 296 OF TORTS AFFECTING THE PERSON. arresting without warrant : Where an assault is com- mitted in his presence, or to prevent a breach of the peace {q) ; where a person is found committing mali- cious injuries to property (r) ; where a person is found committing an indictable offence in the night between the hours of nine p.m. and six a.m. (s) ; where a person is found collecting a crowd round another's house, or continually ringing another's bell, because such acts are likely to lead to a breach of the peace (t). A private A private person may also in some few cases arrest !"''■*.? ','. another, and not be liable to any action for false im- justihed in ' ^ . i i t i t i arresting prisoument. Particularly he may do so it he sees a som?L-°cnses, felony Committed, or if a felony has been actually com- as when he ' mittcd and he has just and reasonable cause for suspect- comnuued"-' ing the pcrsou he arrests to be guilty of it. There is, however, a great distinction between an arrest without warrant in respect of a felony, by a constable and by a private individual, for " in order to justify the private individual in causing the imprisonment, he must not only make out a reasonable ground for suspicion, but he must prove that a felony has actuaUy been committed by some person or another, and that the circumstances were such that any reasonable person acting without passion or prejudice would have fairly suspected that the plaintiff had committed it or was implicated in it ; whereas a constable, having reasonable grounds to suspect that a felony has been committed, aUhough in fact none has heen, is authorized to detain the person suspected until he can be brought before a justice of the peace to have his conduct investigated (u). Or to prevent A private pcrson may also arrest another actually a continuance grrJitinff in the strccts, to prevent the continuance of a of a breach of O o the peace. — (7) Addison on Torts, 572, 580. (>•) 24 & 25 Vict. c. 97, s. 61. (s) 14 & 15 Vict. c. 1!). (<) Addison on Torts, 581. (m) IMd. ;)78. OF TORTS AFFECTING THE PERSON. 297 breach of tlie peace (;«). And if a pawnbroker to whom Special powers any property is offered has reasonable ground for be- ^3Prarr;;J""' lieving that an offence has been committed in respect of it, he is justified in arresting the person offering such property, and taking him and the property before a justice of the peace (y). Thirdly. In civil cases persons are sometimes liable Detention in ,1 111- • 1 civil cases. to be arrested and imprisoned. Imprisonment by reason of contempt of court may Contempt of be ranged under this head, although of course it may ^°^^'^- equally occur in criminal cases. Contempt of court consists in any refusal to obey an order or process of a court of competent jurisdiction, or in offending against particular statutes which render such offending a con- tempt of court, or in interfering with or violating established rules of court, or in behaving in a dis- respectful or improper manner towards the court or any judge or officer thereof (z). Instances of contempt are easy to find, e.g., non-obedience to a decree for specific performance, or an injunction granted by the High Court of Justice, or the interfering by marrying or otherwise with a ward of the court, or by threaten- ing a witness, so as to prevent him giving, or to inti- midate him in giving, his evidence (a). Imprisonment for debt is said to be abolished (6), but imprisonment nevertheless it may occur in various cases. The Act g°[jj occur.' upon this subject is the Debtors Act, 18G9 (c), which 32 & 33 Vict. enacts that, with the exceptions thereinafter mentioned, *^- ^'^• no person shall after the commencement of the Act be (x) Addison on Torts, 378. ly) 24 & 25 Vict. c. 96, s. 103. (?) Brown's Law Diet. 80. See also Be,/, v. Castro, L. R. 9 Q. B. 219. (a) See hereon, Snell's Principles of Equity. (6) See the title of 32 & 33 Vict. c. 62, "An Act for the abolition of imprisonment for debt," &c. (c) 32 & 33 Vict. c. 62. 298 OF TORTS AFFECTING THE PERSON. arrested or imprisoned for making default in payment of a sum of money (d). The exceptions are as follows : Six cases of l_ Default in payment of a penalty, or sum in the special oxcep- „ iini i- tions. nature oi a penalty, other than a penalty m respect of any contract. 2. Default in payment of any sum recoverable sum- marily before a justice or justices of the peace. 3. Default by a trustee or person acting in a fidu- ciary capacity, and ordered to pay by a court of equity any sum in his possession or under his control. 4. Default by an attorney or solicitor in payment of costs when ordered to pay costs for misconduct as such, or in payment of a sum of money when ordered to jjay the same in his character of an officer of the court making the order. 5. Default in payment for the benefit of creditors of any portion of a salary or other income in respect of the payment of which any court having jurisdiction in bankruptcy is authorized to make an order. 6. Default in payment of sums in respect of the payment of which orders are in this Act authorized to In which, be made. It is provided, however, that in all or any of however, the ^jjggg exccpted cascs uo pcrsou shall be imprisoned for iraprisoument / ■•• i i • • i is not to be a longer time than one year, and nothing in the section for beyond ^^ |.^ ^y^qj: the cfTcct of any judgment or order of any court for payment of money, except as regards the arrest and imprisonment of the person making default in paying such money (e). Also power to In addition to the foregoing cases, the same Act also commit to prison for six — weeks on proof uf means. W '^^ & ob \ ict. c. 62, s. 4. (e) Ibid. OF TORTS AFFECTING THE PERSON. 299 provides that any person making default in payment of any debt, or instalment of any debt, due from him in pursuance of any order or judgment, may be committed to prison for a term not exceeding six weeks, on its being proved that he has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects, to pay the same (/). The application to commit to prison under this provision is made by a summons called a judgment summons, and in the superior courts is made to a judge in chambers. In an inferior court, it must be made in open court before the judge or his deputy {g). The Debtors Act, 1869, also contains an enactment When a defen- as to the arrest of a defendant in a case totally distinct iJUJon^'may be and apart from imprisonment for d6bt, it being pro- arrested, vided (/i) that where the plaintiff in any action in any of Her Majesty's superior courts of law proves at any time before final judgment by evidence on oath to the satisfaction of a judge of one of those courts that (1) the plaintiff has good cause of action against the defendant to the amount of £50 or upwards, (2) that there is probable cause for believing that the defendant is about to quit England unless he is apprehended, and (3) that the absence of the defendant from England will materially prejudice the plaintiff in the prosecution of his action {i), the judge may order such defendant to be arrested and imprisoned for a period not exceed- ing six months, unless and until he has sooner given the prescribed security, not exceeding the amount claimed in the action, that he will not go out of Eng- land without the leave of the court. Where the action is for a penalty, or sum in the nature of a penalty, other (/) 32 & 33 Vict. c. 62, s. 5. Xg) Sect. 5. (A) Sec. 6. (i) This being ;< matter very difficult to prove, orders for the arrest of a defendant under this section are not at all frequently granted. 500 (W TORTS AFFECTING THE PERSON. than a penalty in respect of any contract, it is not however necessary to prove that the absence of the defendant from England will materially prejudice the plaintift" in the prosecution of his action, and the security given (instead of being that the defendant will not go out of England), is to be to the effect that any sum re- covered against the defendant in the action shall be paid, or that the defendant shall be rendered to prison. Malicious arrest. If a person obtains an order for arrest under the foregoing provision by any false statement or wrongful suppression of facts, he may, in addition to the false imprisonment, be liable to an action for malicious arrest (k). Malicious arrest may be described or defined as a tortious act consisting in the malicious (I) arrest of another without reasonable or probable cause. III. Malicious jtrosecution. It will be noticed that the provision as to the arrest of a defendant is quite distinct and different from the foregoing provisions as to imprisonment for debt ; in the former there is an action and a judgment, or order for payment, and the object of the imprisonment is to get satisfaction of it ; in the latter there is no debt ad- judged by the court to be due, and the object is to prevent the defendant from leaving the country. The student should carefully remember this distinction, as it is important. Malicious prosecution may be defined as a tortious act consisting in the unjust and malicious prosecution of one for a crime, or the unjust and malicious making one a bankrupt without any reasonable or probable cause (m). Three cssea- tials in an action for malicious jprosecution. There are three essentials necessary to entitle a (k) See Addison on Torts, 625. (I) Using tho word " malicious " in the sense ascribed to malice in a legal sense at p. 301. (m) Brown's Law Diet. 224. OF TORTS AFFECTING THE PEESON. 301 person to maintain an action for malicious prosecution, viz. : 1. Malice on the part of the defendant ; 2. The absence of any reasonable and probable cause for the prosecution (n) ; and 3. That the prosecution was deter- mined in the plaintiflf's favour if from its nature it was capable of being so determined (o). As to the first essential, viz., malice, it is important to properly understand the meaning of the word. Malice is said to be of two kinds, viz., malice in law Difference and malice in fact (^9). The latter means what we ^<^V''''° T^''' V-i / in law and ordinarily understand by the term, and consists of malice in fact. some act of spite either against some particular in- dividual or the public at large ; but the former does not simply mean ill-will against a person or the public at large, but signifies a wrongful act done intentionally, without any just cause or excuse, e.gi., the unwarrant- able striking of a blow likely to produce death ; for, in such cases, there is no necessity to prove any particular spite or ill-will, for the act speaks for itself (q). Now, Malice in law the malice that is required to exist to support an action Jfy/^^ii^^lH^to'^ for malicious prosecution is only of this latter kind (r) ; exist in so that, in saying that malice is an essential, it is not pjio^^eciuLn meant that any particular spite or ill-will must be shown to have existed, but simply that there was the intentional doing of a wrongful act. The second essential, viz., the absence of any reasonable Whether there or probable cause, is important, and what is reasonable ^^'"^f reasonable I . . . and probable and probable cause is a question to be determined by the cause so as to judge on the circumstances of every particular case (s), seeutk)n beint^ malicious is a (n) See as to these two essentials per Williams, J., in Barber v. Lessitcr, '^^^^. '°° ^?^ 7 C. B. (N.S.) 186. the judge m (o) Barber X. L. ssiter, 7 C. B. (X.S.) 186; Basebe v. Mattheics, L. R. each particular 2 C. P. 684. '^'^■^^• (p) Per Bailey, J., in Binmage v. Frosser, 4 B. & C. 255. (q) Brown's Law Diet. 224; Broom's Corns. 723, 724. (/•) Per I'arke, J., in Mitchell v. Jenkins, 5 B. & A. 59-') ; Broom's Cums. 729. (s) Watson \. Whitmore, 14 L. J. Ex. 41 ; Broom's Corns. 729. 302 OF TORTS AFFECTING THE PERSON. for there may be many eases in which, though a person fails to sustain his accusation, yet there may have been very good grounds for the institution of his pro- ceedings, for he may have been compelled to withdraw from such proceedings by reason of inability to find his witnesses, the death of a material witness, or other circumstances {t). A prosecution Although a prosecution at the outset may not be se°t\«aUdous^' ^^^^^^°^^' J®^ ^^ ^^^ a^crwards become so by reason may become of the continuance of it after positive knowledge of the ^°" innocence of the accused (u). A person The third essential, viz., that the prosecution was cannot sue determined in the plaintiflf's favour if it was capable of for malicious . .-^ in/> prosecution if being SO determined, scarcely calls lor any comment there is a here. From it it will be seen that if a person has been conviction on . ^| ^. ^. it standing actually couvictcd, or has been actually adjudicated a agamst him. bankrupt, hc cannot maintain this action whilst the conviction or adjudication stands against him, for that furnishes at once irrebuttable evidence of reasonable and probable cause. To entitle a person, therefore, in such a case, to maintain his action, he must show that the conviction or adjudication has been reversed or superseded (x). No action lies The malicious prosecution of a civil action, though for malicious -^vitliout auv reasonable or probable cause, does not have prosecution of •'^ ■■• . . . , a civil action, the samc cficct as the malicious criminal prosecution or the malicious obtaining of an adjudication in bank- ruptcy, and no action will generally lie in respect of Nor by a No actiou, also, will lie by a subordinate for malicious subordmate prosccution against his commanding officer for bringing oiiicer for him to court-martial (z). Lrinj(ing him to court- (i) Willans v. 7'aylor, 6 Bing. 18G ; Addison on Torts, GU. martial. (y) p^r Cockburn, C.J., in Fitz-John v. Macldnder, 30 L. J. (C.P.) 264. \x) Addison on Torts, G2G, 624. ((/) Ibid. 621. Iz) Ibid. 303 CHAPTEK V. OF TORTS AFFECTING THE PERSON — (continued). In the same way that the torts of assault and battery iv. Libel and are usually classed together, so those of libel and •'''''^"'^'"■• slander are frequently also classed together ; but there are many and material distinctions between the two torts, and it will be advisable to consider the subject in the following manner : 1. The law particularly as to libel. 2. The law particularly as to slander. 3. The differences between libel and slander. Libel may be defined as a tortious act, consisting in Definition of the malicious defamation of another, made public by ^'^^'' writing or printing, or pictures or effigy, in such a manner as to expose him to public hatred or contempt, ridicule, reproach, or ignominy (a). As an assistance to this definition, and as tending to show what acts will be libellous, it may be stated that everything in writing, or printing, or any picture or efiigy, which tends to imply reproach to any person, or to in any way derogate from his character by imputing to him any bad actions or vicious principles, or to abridge his com- forts or respectability, will amount to a libel, even To entitle a although practically and substantially the libel com- P®^'.®°f .*° o 1 J j^ ^ ^ maintain an plained of may not have caused the plaintiff any special action for a or peculiar damage, or, indeed, any real damage at jj'e^essL'y tinit all (h), by which is meant that, even without proof of it should have caused him any special (a) See various definitions from which this is compiled given in Starkie ^ ^ ' on Slander and Libel, 5, 6. (6) Starkie on Slander and Libel, 192-194. 304 OF TOKTS AFFECTING THE PERSON. special damage, the plaintiff may be entitled to a verdict and nominal damages, tliougli, of course, in every case, proof of special injury done to liim by the libel will tend to cnbancc the amount of the damages that will be awarded by the jury. Instances of Very many instances of words held to be libellous to bfubeflous. might be enumerated, and a few may usefully be given. In one case it was held that to write or print of a person that he was a swindler was a libel (c) ; in another that to write of a person that he was a black sheep or a blackleg was a libel (d) ; and in another that to write of a person that he had been blackballed on an election for members of a club was libellous (e). There may also be many cases in which the words used by the defendant, and complained of by the plaintiff as libellous, though not apparently on their face so, yet, by the special and peculiar sense in which they may be taken in any particular case, may be actually libellous ; thus in one case the j)laintiff complained that the de- fendant had libelled him by calling him a truck-master, and the Court held that this might possibly constitute a libel, and that it must be for the jury to decide whether or not, under the circumstances, the word complained of was used in a defamatory sense (/). There may also be many cases in which a person may be libelled, although he is not actually named, if it clearly appears that he is the person against whom the defamatory matter was aimed (g); as, for instance, by describing him, or by describing his place of residence or business, or giving other particulars which would lead persons to apply the libel to the plaintiff ; and it is not necessary to prove that the whole world would take the matter as applying to the plaintiff', but it is (c) r Anson v. Stuart, 1 T. R. 748. Id) M<:Grc(jor v. Gregory, 11 M. & W. 287. (c) (fBricn v. Clement, 16 M. & W. 159. (/) Jlwner v. Taunton, 29 L. J. (Ex.) 318. (r Our definition of libel states it to be the malicious IS an essential defamation of another (p). Malice, therefore, is an to constitute _ ^■'/ ' ' a libel. essential to constitute a libel, but by the word malice used here is not meant malice in its ordinary sense of spite or ill-will, but malice in law as before described in treating of malicious prosecution (q), viz., the intentional doing of a wrongful act without just cause or excuse. Malice, therefore, is properly said to be an But it is essential of libel, but it is inferred, and need not be inferred and proved, for " where words have been uttered, or a libel proved. published, of the plaintiif, by which actual or pre- sumptive damage has been occasioned, the malice of the defendant is a mere inference of the law from the very act ; for the defendant must be presumed to have intended that which is the natural consequence of his act " (r). Circumstances But there may be cases in which special circum- may, however, g^^j^ggg repel the prcsumptiou of malice that would rebut malice, . . and make a othcrwiso cxist, and when there are such special cir- communication privileged. (tn) Brown v. Croome, 2 Stark. 297. (n) Phillips V. Jansen, 2 Esp. 624. Sending the libel in a letter ad- dressed to the wife of the person libelled has been held to be a sufficient publication : Wen7nan v. Ash, 22 L. J. (C.P.) 190. See, generally, as to publication, Starkie on .Slander and Libel, chap. 18. (o) Day V. Bream, 2 M. & Rob. 54. Ip) Ante, p. .303. (7) Ante, p. 301. (r) Starkie on Slander and Libel, 460. OF TORTS AFFECTING THE PERSON. 307 cumstances they prevent the matter complained of being a libel, although had they not existed it would have been, and in such cases the matter is said to be a privileged communication. A privileged communication may therefore be de- Definition of fined as a communication which on its face would be L?!!"'',!,^!, communica- libellous, but is prevented from being so by reason of tion. circumstances rebutting the existence of malice (s), and it occurs where any person having an interest to protect, or having a legal or moral duty to perform, makes a communication to another (such other having a corresponding interest or duty) in protection of his interest or in performance of his duty ; here, although the communication may contain matter that would ordinarily be actionable, yet here it is not actionable if the communication is fairly and honestly made in bond fide belief of its truth and without any gross exaggeration (t). A good instance of a communica- An instance tion privileged by reason of being made in discharge comj^unicaffon of a duty, occurs in the case of a master giving a occurs in the character to his servant. It is quite true that a ^^^^^g^. ^j^j^ servant cannot compel his master to give him a a character to character (w), but, although this is so, it is clearly the master's moral or social, though certainly not his legal, duty to do so ; and if he, therefore, gives a character which he bond fide believes to be true, he is pro- tected, although it is in reality false it is a privileged communication {w). Thus A. has had a servant B., who, on applying for a new place, refers his intended new master to A,, who, believing that B. has, during his service with him, stolen certain articles, replies to the new master's inquiries to that effect ; here, if A. (s) Wright V. Woodgate, 2 C. M. & R. 573. (0 Harrison v. Bush, 25 L. J. (Q.B.) 25 ; Whiteley v. Adams, 33 L. J. (C.P.) 89. (i<) Carrol v. Bird, 3 Esp. 201 ; Smith on the Law of Master and Ser- vant, 347. (ir) Weather stone Y. Hatokins, 1 T. R. 110 ; Fountain v. Boodle, 3 Q. B. 5. X 2 308 OF TORTS AFFECTING THE PERSON. bond fide believed this statement to be true, and has made it witliout any exaggeration, under the circum- stances, although B. can prove himself totally innocent, he has no right of action against him. But a chaiac- If^ howovcr, a master, without being applied to for a ter voluntarily i i ^ i t ^ • o • given is not Character, volunteers one, here he is perlormmg no privileged. duty, and it will not be a privileged communication, but he will be liable if it is false (x). Other instances of privileged communica- tion. Seaman v. Nethercliff. Fair comments on any public proceedings, or on the conduct of public men, such as members of parliament and the like, and fair and honest criticisms and reviews, are privileged communications, provided that in all these cases such comments, criticisms, or reviews are of an honest, fair, and bond fide character ; if, however, they are not, but appear to be really malevolent, then they are not privileged (y). Statements made by members of parliament in the House are privileged, but such members may be liable if they subsequently print and publish such state- ments (2). Fair reports of proceedings in parliament or in courts of justice are privileged, unless the proceedings are of an absolutely scandalous, blasphemous, or indecent nature (a). The statements of a witness in a court of justice are absolutely privileged, and this even although the wit- ness goes somewhat beyond what he was asked. That it is so is well shown by the very recent case of Seaman V. NethercUf (h), which came before the court in June of (x) Pattison v. Jones, 8 B. & C. 578. (1/) See Starkie on Slander and Libel, .'ilB. («) Ibid. {a) Ibid. 214, 218, 219. (6) See a short note of the case, Law .Jdiinial Ilojiorts of Cases, 1st July, 1870, p. 148. or TORTS AFFECTING THE PERSON, 309 the j)reseiit year (1876), and is not yet fully reported. The facts in that case were as follows : The plaintiff was a solicitor, and had attested a will, which was afterwards called in question in the Probate Court, The defendant, who was an expert in matters of writing, gave it as his evidence that the testator's signature was not genuine, but the jury found in favour of the will. Soon afterwards the defendant was engaged in another case as an expert, and on being cross-examined as to his evidence in the will case, he added, as a gratuitous statement, " I believe that will to be a rank forgery, and shall believe so to the day of my death." This was the defamation complained of, but the Court decided that the words fell within this class of privi- leged communications, as being words spoken in the course of evidence ; and Lord Coleridge, in giving judg- ment in favour of the defendant, said that the " cross- examining counsel, by stopping, could not take away the defendant's right to answer ; and he had a right to add the further statement that, notwithstanding, he still believed the will to be a forgery, the words being relevant, as the counsel had challenged the defendant's character, which he had a right to vindicate." And with regard to what will be a court, so as to Dawkms v. render a witness not liable for his statements, it may ^"''^ Jio.'wbij. be noticed that it has been decided that a court of in- quiry instituted by the commander-in-chief of the army, under the Articles of War, to inquire into a complaint made by an officer of the army, is such a court, and therefore that statements, whether oral or written, made by an officer summoned to attend before such court, are absolutely privileged, even although made mold fide and with actual malice, and without reason- able and probable cause (c). In many cases of what are alleged to be privileged it is for the judge to decide (c) DawkiHS V. Ltinl liohcby, L. K. 8 Q. B. 255. 310 OF TORTS AFFECTING THE PERSON. whether a particuhir matter is privileged. conimimications, on the ground of moral or social duty, it is often a difficult matter to decide whether or not the matter shall be admitted to be such a duty as to render the communication j)rivileged ; in all such cases it is for the judge to decide whether the principle can be applied to the particular case (d). Many cases that would on their faces appear to be privileged may yet on particular facts not be. In any case of privileged communication, however, it is open to the jilaintiff to show that, notwithstanding that the communication would ordinarily be privileged, yet that the i^laintiff has been guilty of actual malice, i.e., malice in fact (e). Thus, it has been pointed out that a master is privileged in giving a character to his servant, but yet, if he knowingly gives a false character, here there is actual malice, and there cannot possibly be any privilege. The truth of a libel affords a complete answer in a civil action. Effect of the truth of a libel in a criminal prosecution for it. The truth of a libellous imputation affords a com- plete answer to any action for damages, because the action is brought by the plaintiff to free his character from such imputation, which he cannot be entitled to do if the imputation is actually true (/) ; and where the truth of the imputation is not thoroughly and strictly proved, but it is substantially or to a great extent, this, though not sufficient to form a defence, may go in mitigation of damages ((/). Libel is, however, punishable, not only civilly but also criminally, by in- dictment or information ; and in a criminal prosecution the truth of the libel was formerly no defence, for the object of a criminal prosecution is to a great extent the preservation of the public peace and good order, which cannot be maintained if one man is allowed to publish of another everything that may chance to be true of that person, so that, whether true or false, the (d) Per Erie, C.J., in Whiteley v. Adams, 15 C. B. (N.S.) 418. (e) Wri:/ht V. Woodgate, 2 C. M. & R. 573. As to malice in fact, see ante, p. 301. C/) Starkie on Slander and Libel, 72. (f/) Chalmers v. Shackell, 6 C. & P. 475. OF TORTS AFFECTING THE PERSON. 311 imputation may have equally mischievous results, and consequently be equally a public wrong (h). This state of the law is, however, now to a considerable extent 6 & 7 Vict, altered, it having been provided that the truth of a *^- ^^' ^- ^• libel shall form a defence to a criminal prosecution if it is also for the public benefit that the matters com- plained of should be published (i). The Act last referred to (k) also contains two other Provisiou of important provisions on the subject of libel. The first ^ gg ^^\^ of such provisions is that in any action for defama- apology gene- tion it shall be lawful for the defendant (after notice ''' ^' in writing of his intention so to do duly given to the plaintiff at the time of filing or delivering the plea (Z) in such action) to give in evidence, in mitiga- tion of damages, that he made or ofi'ered an apology to the plaintifi' for such defamation before the commence- ment of the action, or so soon afterwards as he had an opportunity of doing so, in case the action shall have been commenced before there was an opportunity of making or ofi'ering such apology (m). The other of such provisions is that in an action Provision of for a libel contained in any imIjUg newspaper or other ^ ^^^^ ,^^^°^' periodical puhlication, it shall be competent to the Hbe] la a defendant to j)lead that such libel was inserted therein ^^^.J^^ ^!^J^^' without actual malice and without gross negligence, and that before the commencement of the action, or, at the earliest opportunity afterwards, he has inserted in such newspaper or other periodical publication a full apology for the said libel, or if such newspaper or other periodical publication shall be ordinarily pub- lished at intervals .exceeding one week, that he has ofi'ered to publish the said apology in any newspaper (A) See Starkie on Slander and Libel, 72, 73. (j) 6 & 7 Vict. c. 96, s. 6. (A) 6 & 7 Vict. c. 96. (J) Since the Judicature Act, 1873, statement of defence. (w) Sect. 1. )12 OF TOUTS AFFECTING THE PERSON, or other periodical publication to be selected by the plaintiti' in such action ; and that every such defen- dant shall upon filing such plea (n) be at liberty to pay into court a sum of money by way of amends for the injury sustained by the publication of such libel (o). This latter provision is not, however, now of the importance it formerly was, as under the Judi- cature Act, 1875, money may be paid into court in all actions (2^). An action for An action of libel may be brought at any time within libel miisf brought \\ six years. bit'L'hl'witMu six years of publication thereof (q). If a person, to whom a libel is published, in his turn publishes it again, he is liable in respect of it, as well as the original libeller (r). Definition of Slander may be defined as the malicious defamation san 81. ^£ another person, not in writing, but simj^ly by word of mouth (s). For ordinary slander the only remedy of the person slandered is to bring an action for damages, for the injury done to him is not so great as by libel, which, being in writing or the like, is more lasting and permanent in its nature, while slander, being but by word of mouth, is, from its very nature, Cases in which fleeting ; but in some exceptional cases of slander, e.g., a criminal where the words used are seditious, crossly immoral jirosecution ' o _ ./ will lie for or blasphemous, or addressed to a magistrate with reference to his duties or whilst he is performing his duties, or uttered as a challenge to fight a duel or to provoke such a challenge, a criminal prosecution will lie (0- (n) See note (^ on previous page, (o) 6 & 7 Vict. c. 96, s. 2. (p) .38 & 39 Vict. c. 77, OrJ. xxx. r. 1. (//) 21 Jac. 1, c. 16, s. 3. (r) McPherson V. Laniels, 10 B. & C. 273; Tidnian v. Ainslie, 10 E.x. 63. (s) For various definitions of .slander, see Starkieon Slander and Libel, 3. (<) See Starkie on Slander and Libel, 95. slander. OF TORTS AFFECTING THE PERSON. 313 As to what words will bo sufficient to enable a person instances of to maintain an action of slander, may be instanced "''^^'^^i'- words imputing a crime to any one, as generally that he is a thief, or particularly that he has committed such and such a wrongful act, but it is not necessary that the words used should be so extreme as that, and generally speaking any defamatory words causing damage will give rise to the action. On the other hand, there are many cases of words merely spoken which confer no right of action, although had they been written they would have (u). "Words made use of charging another with having evil desires and inclinations, but not stating that they have been brought into action, are not actionable (x), but if they go beyond that, and charge another with actually having evil principles, then it seems they are (y). The facts to be proved in an action of slander will Facts to be generally be three, viz., 1. The uttering of the slan- P^.^'-^d m an <=> 'J ' ' o action tor derous words. 2. The malice of the defendant ; and slander. 3. The damages caused to the plaintiff. The first matter will involve the point of whether or what words not the words are really defamatory : and to render "'" ^'^ '^°^^^' them so they must be such that if not the whole world, at any rate some persons would have taken them in a defamatory sense (z). The question as to the meaning of the words used is, — in what sense did the person uttering them mean them to be understood? (a) But although words, if they stood by themselves, might be defamatory and actionable, yet it is quite possible that they may be controlled by other words made use of at the same time, so as to prevent them having the (m) PAnson v. Stnart, 1 T. R. 748. (a;) Harrison v. Stratton, 4 Esp. 218. ((/) Prince v. Howe, 1 Bro. P. C. 64. \J) Ante. pp. 304, 305. (rt) Recid V. Amhridgc, 6 C. & P. 308. !14 OF TORTS AFFECTING THE PERSON. ordiuary nsual ami primary meaning tliat they other- wise AYoiilcl have had (h). The malice The malice that is required is only malice in a legal equired is gense, which will he implied if the uttering of the law. malice in defamatory words is proved (c). Special damage We have stated that the third essential of proof in must be pioved ^|j actious of slauder will be the damages caused by in an action -, n m i • i for slander. the defamatory words, lor generally speaking, unless the slander has been productive of damage, no action lies, in which respect slander differs from libel, for in the former we have pointed out that the plaintiff will at any rate be entitled to a nominal verdict, although he may not give one atom of evidence that the libel has caused him any injury (d). In some few cases this is also so in slander, and such words are said to be words actionable in themselves, and they are as fol- lows (e) : Except in three cases 1. Imputing an indictable ofl'ence. 2. Imputing a contagious disorder. 1. Where an indictable oflence, or actual conviction thereof, is imputed, and it is not necessary that the crime should be technically described, any words by which it would ordinarily be understood are suffi- cient (/) ; nor is it necessary to particularly specify any crime, it is sufficient if a person says he has a right to have another punished (g). General terms of abuse, such as rogue, rascal, scoundrel, &c., are not words actionable in themselves, for they do not impute any precise and definite offence punishable in the courts of justice (A). 2. Where the words used impute to the defendant a (6) Shipley v. Todhunter, 7 C. & P. 680. (c) As to malice in fact and malice in law, see ante, p. 301. {d) Ante, pp. 30:i, 304. () Robinson v. Marchant, 7 Q. B. 918. (q) Starkie on Slander and Libel, 154. (»■) Connors v. Justice, 13 Ir. C. L. R. 451. In addition to the three cases given above in which an action of slander may be maintained with- out proof of special damage, it may be mentioned that calling a woman a whore, or otherwise imputing unchastity to her, is by itself actionable in the city of London courts ; and so calling a woman a strumpet in the city of Bristol is actionable there by the custom of the place (see Fisher's- C. L, Digest (tit. " Defamation "), 3061, 3062). 316 OF TORTS AFFECTING THE PERSON. within one of these three classes when special damage cannot be proved ; and, of course, such proof is always, when possible, given for the purpose of enhancing the amount of the damages. Tho truth of slander is an answer to an action for it. The truth of slanderous matter will form a perfect defence to any action in respect of it on the like principle that, as has been stated (s), the truth of a libel may be set up as a defence to an action for damages. This point is extremely well put in Mr. Starkie's work on Slander and Libel [t), as follows : " It is essential to the claim for damages that the im- putation should be false; for, as in point of natural justice and equity, no one can possibly have any claim or title to a false character, so also would it be contrary to the principles of public policy and convenience to permit a man to make gain of the loss of that reputa- tion which he had forfeited by his misconduct. Inforo conscientiae it is no excuse that the slander is true ; but in compassion to men's infirmities, and because if the words spoken are true, the individual of whom they are spoken cannot justly complain of any injury, the law allows the truth of the words to be a justifi- cation in an action for slander." The principle of jirivileged communica- tions applies equally to cases of slander. Scandalum, iiMijuatum. The remarks that have been made under the head of libel on the subject of privileged communications apply equally to cases of slander {u). A special and peculiar kind of defamation occurs in what is called scandalum magnatum, of which it is suffi- cient to say that it consists in the spreading of false reports against peers and certain other great ofiicers of the realm, and that it is subjected to peculiar punishments by various ancient statutes {iv). (s) Ante, p. 310. (0 Pp. 97, 98. \u) See ante, pp. 306-310. (w;) See Brown's Law Diet. 321. OF TORTS AFFECTING THE PERSON. 317 An action of slander may be brought at any time An action of witliin two years after tlie utterinsr of it (a;). slander must •^ o \ / |)e brought within two A person repeating a slander uttered by another y^^^'^- renders himself liable in respect of it, and cannot in i-epeTtina; a any way discharge himself by giving up the name of slander is the author or first utterer of it, for both are liable (y). were the utterer of it. The differences between libel and slander have ap- Differences peared in discussin» respectively each of those torts, between hbei ,,,,.,„ "^ , and slander. and all that is therefore necessary under this third heading is to summarise those differences. They are as follows : 1. There is the difference in the very nature of the two torts which appears from their two definitions (2). 2. Libel, from its nature, is of a more lasting, and slander of a more fleeting character, so that libel is a tort of a more serious nature than is slander (a). 3. It is not essential to prove special damage in an action of libel (&), but it is in slander, except in three cases (c). 4. Libel is punishable both civilly and criminally : but slander, generally speaking, only civilly (d). 5. Libel is by statute barred after six, but slander after two, years (e). (a) 21 Jac. 1, c. 16, s. 3. As to the construction put upon this pro- vision, see Starkie on Slander and Libel, 390. (y) McPherson v. Daniels, 10 B. & C. 273 ; Tidman v. Ainslie, 10 Ex. 63. (z) Ante, pp. 303, 312. («) Ante, p. 312. (6) Ante, p. 303. (c) Ante, p. 314, where these three cases are given. ((/) Ante, pp. 310, 312. (e) Ante, p. 310, and supra. 318 OF TORTS AFFECTING THE PERSON. V. Seduction and loss of services. " An action of seduction is in our law founded upon a fiction — the basis of this action when brought even by a father, to recover damages for the seduction of his daughter, having been uniformly placed from the earliest times, not upon the seduction itself, which is the wrongful act of the defendant, but upon the loss of service of the daughter, in which service the parent is supposed to have a legal right or interest. It has, accordingly, always been held that in an action for seduction loss of service must be alleged and must be proved at the trial, or the plaintiff will fail, notwith- standing the production of evidence conclusive as regards the guilt of the defendant ; for the wrong done by his act the law does not esteem jper se as an injuria, using that word in its strict sense, but merely as damnum sine injuria, for which consequently an action will not lie " (/). The action of seduction is not for the seduction, but for the loss of service. The foregoing quotation shows lucidly enough the nature of the action commonly called an action of seduction. From it the student will carefully observe that although the action is said to be " for seduction," yet this is not strictly correct ; it is really for the loss of service that ensues from the antecedent act of seduc- tion, and is therefore so called, for a parent or other person has no remedy because his daughter or other relative has been seduced {(/). This may have injured him substantially in his position or in his feelings, yet it is not what the law considers as a legal injury, but constitutes an instance of the rule — before endeavoured to be explained — that damnum sine injuria will not be sufficient to enable a person to maintain an action. The seduced Again, a womau cannot herself maintain any action person cannot -^^ resoect of her own seduction, for she has been a maintain an •'■. .,.. -,,■, . n action of seduction, for the maxim is Volenti rum fit injuria. consenting party to the tort, and the maxim of our (/) Broom's Corns. 82, 83. As to damnum sine injuria, see ante, p. 4. (r/) Sat/ury-nite v. Duerst, 5 East, 47 n. OF TORTS AFFECTING THE PERSON. 319 law, Volenti non jit injuria, deprives lier of any remedy she might but for its existence have had {h). Did the law stay here there would, of course, be no The fiction remedy for the tortious act of seduction, but — as stated ac'°io,i^of"^ "° at the commencement of our subject — this action is, in seduction is our law, founded upon a fiction, this fiction being that, ™'"" '"°'' although the person seduced cannot maintain any action, nor can a parent in his character of parent, yet any person whether parent or not, between whom and the seduced party the relationship of master and servant exists, may sue for the loss of service that ensues from , , . -l- {/j<. t^i-*. the pregnancy and illness consequent on the seduction,^ , . ,_ I " whereby the person is deprived oi the services that ^^ should have been rendered to him, and to which he was ^^-'^^Uav ' entitled (i). This action, therefore, can be maintained by a person The usual cases who is purely and simply a master, but this is not the °^ s'^^^ct'on m i- "J ^ -J ' our courts are usual class of cases that occur, for in such cases, practi- when a parent cally, the damages the master would recover would be ^"^^* but small. Actions of seduction usually occurring in our courts, are, where a parent or other person sues for the seduction and consequent loss of service to him of his daughter or other relative ; and here, though technically he has to make out a state of service as ex- isting between himself and the seduced person, yet this being made out technically, substantial damages may be given to the plaintiff very far beyond any real injury done by the loss of service, but as a solatium to the feel- ings of the plaintiff, and increased in amount according to the conduct of the seducer. The jury, also, un- The jury in doubtedly, in most cases of seduction, look to the fact ^^^ /"action of ,1 . , , , , . . • n seduction that, although the action is nominally for loss of generally look service, yet, substantially, or probably, it is chiefly for \° the substan- the benefit of the seduced herself, it being at any rate, the action. (Ji) See Broom's Legal Maxims, 265. (0 Addison on Tortp, 907, 908. 320 OF TORTS AFFECTING THE PERSON. Points to be proved iu an action of sediu'tion. What will constitute the jiosition of master and servant to enable a person to sue in this action. tlic only means she has of obtaining such remedy from the seducer (/.•). In every action of seduction the points to be proved will be three, viz. : 1, The fact of the seduction and consequent illness and loss of service. 2, That the relation of master and servant existed between the plaintiff and the party seduced ; and 3, The damages sustained. With reference to the first and third points, it has already been pointed out that it is not the actual act of seduction which really gives rise to the action, but the illness and loss of service, and that the jury have a very wide discretion in awarding damages. The second point remains as to what will be sufiicient proof of the relationship of master and servant, and as — as has also been pointed out — it is not in simple cases of ordinary service that the action is usually brought, but in cases of parent and child, in which it is wanted to establish a technical service, it is sometimes not easy of determi- nation whether or not that relationship can be said to exist. It is not neces- It is uot at all necBSsary to show that the seduced sary to show ^^g actually employed in a regular routine of duty (/), seduced was in for " Very slight evidence of actual service, such as milking cows, making tea, nursing children, will suffice to prove the fact of actual service. And where a daughter is shown to have been living with her father at the time of the seduction, forming part of his family, any regular routine of service. (k) E.xcept indeed a bastardy summons for the maintenance of tlie child, as to which see 35 & 36 Vict. c. 65. (A See Griffiths v. Tectrjen, 15 C. B. 344; Torrcncc v. GMins, 5 Q. B. 297 ; Rht v. Faux, 32 L. J. (Q.B.) 386. OF TORTS AFFECTING THE PERSON. 321 and liable to liis control and demand, service will be presumed, and proof of acts of actual service will be unnecessary" (m). And this relationship of master and servant must be The relation- shown to have existed not only at the time of the '^^'J' ^f^;^';f illness and loss of service, but also at the time of the must have seduction (w), upon the principle that a master taking a tinie'of the servant who has already been seduced, takes her with seduction. the injury already done — it is not an injury committed during the time of his rights over her. The fact of the seduced party being a married An action may woman does not prevent the action, for, provided she foi^h^seduc- is living with and serving her parent or other the per- tion of a son who brings the action, without any interference on ^o^^^^n*^ the part of the husband, the plaintiff's rights are just the same as if she were not married (o). But if a daughter is in a house of her own, the fact of her father being there with her consent cannot confer on him any right of action (p), and if she is away in actual service to some third person, but comes home occasionally, and then renders services, this cannot give the parent any right to bring the action (q) ; but if she is generally at home, and simply away making a temporary visit when the seduction or the illness occurs, here the parent has his right of action, because he has a right to call for her service (r). If the person seduced is actually and substantially in Effect of a woman beii in the serv: of her seducer. the service of her seducer when the seduction takes ^^'^f?-''" ^^^^^ in the service (m) Addison on Torts, 912 ; and as to the latter statement in the text, see Maunder v. Venn, M. & W. 323 ; Jones v. Brown, 1 Esp. 217 ; Fores V. Wilson, 1 Peake, 77 ; and per Coleridge, J., Torrence v. Gibbins, 5 Q. B. 300. (n) Dav!es v. Williams, 10 Q. B. 729. (o) Harper v. Luffkins, 7 B. & C. 387. (/)) Manley v. Field, 29 L. J. (C.P.) 79. (jl) Thompson \. Boss, 29 L. J. (Ex.) 1. 00 Griffiths V. Teetijen, 15 C. B. 344. 322 OF TORTS AFFECTmG THE PEKSON. place, no one will have any right to maintain the action, unless indeed, the girl has been fraudulently lured away from her home, and thus taken into service for the purpose of seduction, in which case the parent, or person standing in loco j^arentis, will still have his remedy, because such a fraudulently arranged service does not put an end to the relationship of master and servant that before existed. In all such cases it will always be a question for the jury, whether there was a hond fide service between the girl and the defendant (if there was a land fide service, the verdict must be for the de- fendant), or whether the service was arranged simply and expressly for the purposes of, and with a view to the accomplishment of the seduction (if it was so arranged, the plaintiff will still be entitled to a verdict, notwithstanding such services (s) ). If the plaintiff It will always be a good defence to an action of this condu'ct '^ kind, that the plaintiff has by his own conduct brought Ju-ought about about the evil he complains of, e.y., if he has encouraged the seduction, • • a.- i j. 1.1, i.- 1 • he cannot ^^J improper mtimacy between the parties, or has m- maintain an troduced the persou seduced to, or encouraged her action for it. • , -.i i? 1 it acquaintance with, persons oi a known loose, dangerous, or immoral character (t). It is a good If a defendant proves that, although he was the defendlnrto ' scduccr, yet he was not the father of the child of which show that he she was delivered, no action lies against him (w). was not the father of the seduced's There are also cases in which an action can be V \- r maintained for loss of services arising quite otherwise An action for . loss of services than by scductiou, for "every person who knowingly taine)! TuTte' ^^^ designedly interrupts the relation subsisting be- irrespective of twcen master and servant by procuring the servant to seduction. (s) See Addison on Torts, 909, and remarks of Abbott, C.J., in Speight , Olivrera, 2 Stark. 495, there quoted and referred to. (t) See, as an instance of this, Meddle v. Scoolt, 1 I'eake, 316. (m) Eager v. Grimu-ood, 16 L. J. (Ex.) 236. OF TORTS AFFECTING THE PERSON. 323 depart from the master's service, or by harbouring him and keeping him as servant after he has quitted his place and during the stipulated period of service, whereby the master is injured, commits a wrongful act, for which he is responsible in damages " {x). Thus, in the case of Lumleu v. Gye {y), the plaintiff alleged in his Lumiey v. declaration that he was lessee and manager of the '^^'^" Queen's Theatre, and that he had agreed with one Johanna Wagner to perform in his theatre for a certain time, with a condition that she should not sing or use her talents elsewhere during the term, without the plaintiff's consent in writing. That the defendant, knowing these facts, and maliciously intending to injure the plaintiff as lessee and manager of the theatre, whilst the agreement with Wagner was in force, and before the expiration of the term, enticed and procured her to refuse to perform, by means of which enticement and procurement of the defendant, Wagner wrongfully refused and did not perform during the term. On de- murrer, the court held that this showed a good cause of action for the plaintiff, and that an action lies for maliciously procuring a breach of a contract to give exclusive personal service for a time certain, equally whether the employment has commenced or is only in fieri, provided the procurement be during the sub- sistence of the contract and produces damage, and that to sustain such an action it is not necessary that the employer and employed should stand in the strict rela- tion of master and servant. (x) Addison on Torts, 906. (//) 2 Ell. & B. 224. Y 2 324 CHAPTEE VI. OF TORTS AEISING PECULIARLY FROM NEGLIGENCE. Many matters of negligence have inciden- tally been treated of in prior pages. In the foregoing pages many matters depending on negligence have incidentally been touched on, as for instance, particularly in the chapter on Bailments, and therein of Common Carriers, which subject mostly in- volves negligent breaches of duties on the part of the bailee (a). The object of the present chapter is to treat particularly of the subject of Negligence, intro- ducing some matters that have been before casually mentioned, and some that have not been treated of at all. There must always be some obliga- tion on the part of the negligent person to use care. What is to be considered Negligence producing damage to another is in all cases a ground of action to the party suffering thereby, provided there is some obligation on the part of the negligent person to use care ; but the question of what shall be considered negligence so as to render a person liable therefor is a question of fact for the jury, sub- ject to rules of law or of common sense, according to negligence IS a ■^y}^^^}^ ^^^g mcasurc of Culpable neffli";ence varies as the question of fact ^ . , ^ , . ^ for a jury. circumstanccs of each particular case diner ; for m some cases a person is liable only for very extreme acts of negligence, in others for very slight acts of negli- gence (h) ; thus, to again refer to the subject of bail- ments, we have seen that a remunerated bailee may be liable for ordinary or for slight negligence, whilst a mere voluntary bailee is liable only for acts amounting (a) As to which, see ante, Part i. ch. iv. (6) See Brown's Law Diet. tit. " Negligence," 248. OF TOKTS ARISING PECULIARLY FROM NEGLIGENCE. 325 to gross negligence (c). A person, too, may be liable not only for acts of negligence done in his own proper person, but also by those whom he employs under the maxim. Qui facit jper alium facii per se (d), for this is only reasonable — the person employing has the oj^tion of those whom he will employ, and if he employs negli- gent, careless, or unskilful persons, it is only fair and proper that he should be liable for their negligence, carelessness, or unskilfulness. The subject of Negligence may be conveniently con- Mode of . ^ -, -1 iij^n • 1 1 • coasiderinEf the sidered under the lollowmg heads, viz. : subject. 1. Negligence causing injury to the person. 2. Negligence causing injury to property, real or personal. 3. Defences to an action for negligence. If a person, through negligent driving, runs over or i. Negligence otherwise injures any person, he is liable for such injury, tg^he^jeiion^ and this equally so whether the driving is by himself or by his coachman or other servant, and whether he is at the time in the vehicle or not, provided always that, in the case of a servant being the driver, he is acting in the course of his duty ; for if this is not so — as, if the servant takes out the vehicle contrary to his mas- ter's orders — then the master is not liable (e). It has, however, been held that if the servant is originally out in the course of his duty, and then disobeys his master's instruction, as by driving where he was told not to, the master is nevertheless liable (/). (c) Ante, pp. 86, 87, and cases of Coggs v. Bernard, 1 S. L. C. 188, and Wilson V. Brett, 11 M. & W. 113, there quoted. (d) See Broom's Legal Maxims, p. 784 ; Broom's Corns. 679, 687. (e) McManus v. Crickett, 1 East, 106. (/) Seymour v. Greenwood, 6 H. & N. 359; 7 H. & N. 355; Storey v. Ashton, L. R. 4 Q. B. 476. 326 OF TORTS ARISING PECULIARLY FROM NEGLIGENCE. Liability in the Where a veliicle is let out by a job-master to a person case of a j^^ appoints liis own coacbman, here, generally speak- vehicle let i J- . ■,■■,■■,■, n ,i t out. lug, the owner is under no liability, lor the coachman is not his servant, but the servant of the person to whom the vehicle is let (g). In all cases in which it is desired to make one person liable for the negligent act of another, it is essential to show that the person guilty of the negligence actually stood in the position of Or in the case Servant to the other (A) ; so that, where a contractor of a sub- £qj, Ijuilding or other purposes employs a sub-contractor to carry out the work, who in his turn employs his ser- vants, the original contractor is not liable for the neg- ligence of such servants («). So, if a person instructs builders or other workmen to pull down or alter his house, or do other work of a lawful and not necessarily dangerous character, he is not liable for their acts of negligence committed in the course of such work being done (k). If, however, the work is actually completed, and afterwards, through the negligent way in which it has been done, an injury happens to any one, then the owner may be liable ; so that, for instance, where a person came to races, and paid money for the privilege of viewing such races from a stand erected for that purpose, and was injured through the negligent manner in which it had been constructed, it was held that the person who caused its erection and received the money for admission was liable in respect of such injuries (I). If, however, money is not paid in such a case, but the persons are received as visitors, it would then be the same as a man receiving visitors at his own house, as to which the law is, that he is not liable for any injury happening to them from some defect of which he ((/) Laufjher v. Pointer, 5 B. & C. 547-, QxKirman v. Burnett, 6 M. & W. 499. (h) Butler V. Ilimter, 31 L. J. (Ex.) 214. (t) Cuthbertson v. Parsons, 12 C. B. 304; Murray v. Currie, L. R. 6 C. P. 24. (k) Butler V. Hunter, 31 L. J. (Ex.) 214. (l) Francis v. Cockrell, L. R. 5 Q. B. 184; Ibid. 501. I OF TORTS ARISING PECULIARLY FROM NEGLIGENCE. 327 himself is not aware ; though, if he is aware of the defect, and such defect is not necessarily observable, then it is his duty to warn the guest, and if he fails to do so, then he may be liable (m). If a person deposits with a carrier or other bailee Liability in goods of a dangerous character, and neglects to disclose dangerous that fact to such carrier or other bailee, he is liable for goods. the consequences (n) ; and if a person negligently en- trusts any machine, implement, or animal to a person unfit to take charge of it or to manage it, who from his unfitness does some injury, the person entrusting it to him is liable (o). And the same principle applies where a person negligently leaves about anything of a dangerous character, or which may do injury, for he is liable for all the reasonable and probable consequences arising from his negligence (p). If a person keeps Or animals, some animal of a naturally ferocious nature, as a lion or a bear, he is liable for any injury such animal may do ; but if not naturally of such a nature — e.g., a dog — then to render the owner liable for an injury done to a person, proof not only of the animal's viciousness must be given, but also of the scienter or knowledge of the owner of such viciousness (q). Proof, however, of such scienter in the case of injuries to sheep or cattle is not necessary (r). Where the negligence complained of arises out of a An action for contract, persons besides the other contracting party Je m But the court looks at the contract with great care, and the mere fact ^g'J(J°thlr that the parties have stipulated that on breach a certain the sum agreed sum shall be paid by way of compensation by the one to^.^.^jl^y'^^iTq^^l! the other, will not always entitle that other to recover ^^ited damages, that exact amount, and this even although the parties! penaUy^and may expressly stipulate that the amount agreed to be; '^ .jj^^ latter paid shall be by way of liquidated damages, for in many j enforce it. such cases the sum agreed to be paid may really be aj penal sum, and if it is so, then the Court will not en-^ force it, but will relieve against it (m). The Court, in The court, in doing this, does not at all interfere with the powers J^^^ ^^ '^'{jg that persons naturally must have of estimating their true intent ol' the parties. (0 Price V. Green, 16 M. & W. 346 ; Hinton v. Sparks, L. R. 3 C. P. 161. (m) Kemhle v. Farren, 6 Bing. 141. 346 ON DAMAGES. owu damages, but what it does is to look to the real and true intention of the parties (n), not heing bound down by the mere words used by the parties, but looking at the whole instrument to arrive at the true construc- Ke iMc V. tion. Thus in one case already quoted (o) the defendant {^^22; had engaged wath the plaintiff to perform as a come- dian at the plaintiff's theatre for a fixed time at a cer- tain remuneration, and it was mutually agreed that if either of the parties should neglect or refuse to fulfil the agreement, or any part of it, such jDarty should pay to the other the sum of £1000, which was thereby de- clared between the parties to be liquidated and ascer- tained damages, and not a penalty or penal sum or in the nature thereof. Yet the Court held that the stipulated sum of £1000 was in the nature of a penalty, and there- fore not recoverable, but unliquidated damages only were recoverable. It was indeed but a penalty in the dis- guise of liquidated damages, for it was to be paid on breach equally by either party, and it was evident that had the breach been by the plaintiff the true damage sustained by the other party would have been the fixed remuneration he was to be paid during the time agreed upon, and not such a sum as this. Had this sum been stipulated to be paid only on breach by the defendant, then, as his breaches were of an uncertain nature and ' amount, the stipulation would no doubt have been con- strued as liquidated damages and good, for the rule has been laid down that where the damage is entirely un- certain, and the parties agree on a definite sum by way of liquidated damages, then that sum will be so con- strued and will be recoverable (j)). Effect of Where a sum is expressed in an agreement to be specifying that penalty, it will always be so considered, and the a sum agreed l •^' •' i/> i- • i l i to he j.aid is action must be brought on breach lor unnquidated hy way of penalty. ~~ (/i) Per Keating, J., in Lea v. Whitaker, L. R. 8 C. P. 73. (o) Kemljle v. Farrcn, 6 Bing. 141, ante, p. 345. (/>) Per Coleridge, J., Reynolds v. Bridije, 6 E. & B. 541 ; Mercer v. Trviruj, 27 L. J. ((^B.) 201. ON DAMAGES. 347 damages, and not for the fixed amount (q) ; it has, how- ever, been held that where the real damages would be excessively difficult to arrive at, a sum stipulated to be ' paid, although mentioned as a penalty, may be recovered as liquidated damages (r). Where a sum is really a penalty, and the plaintiff is A person iu not able to sue for it, but has to sue for unliquidated ',Xfuidated damages, he is not restricted in the amount that he damages is not may recover to the amount named as the penalty, but \^^ amount^of may recover a sum exceeding it (s). a named penalty. " Where it is doubtful from the terms of the contract whether the parties meant that the sum should be a' penalty or liquidated damages, the inclination of the Court will be to view it as a penalty. But the mere 'I largeness of the amount fixed will not per se be suffi- cient reason for holding it to be so" (/). It is for the Court to decide whether a sum stipulated to be paid is a penalty or liquidated damage (w). Besides the difference between liquidated and un- Difference in liquidated damages in their very nature (w), there is a {^'^u'lda'ted and difference in the course of procedure. In the case of unliquidated liquidated damages the plaintiff may issue a writ spe- ' '^™^"^^- cially indorsed, on which, if the defendant does not appear within the eight days limited, he may forthwith sign final judgment and issue execution against the defendant, or proceed to obtain satisfaction of his judg- ment in any other way that he can ; but in the case of unliquidated damages, the writ cannot be specially indorsed, and on the defendant's non-appearance within the time aforesaid, the plaintiff can only sign inter- (7) Smith V. Dickenson, 3 B. & P. 630. (r) Sainter v. Ferguson, 7 C. B. 716. (s) Mayne on Damages, 99. (0 Ibid. 104. 00 Ibid. 99, 100. (w) Ante, p. 344. 348 ON DAMAGES. locutory and not final judgment, after which he has to proceed to assess his damages by writ of inquiry, or reference to a master or assessors, as the case may be, and it is only after this that he obtains final judg- ment (.I'). Wherever Wherever there has been actually what the law con- whit ?he Liw° siders an injury committed, the party suffering it must considers as au always be entitled to maintain an action, for every in- mist'b'eli^'*^ jury imports a damage, although it does not really cost right of action the party anything (y), although of course some in- juries may entitle a person to a very different amount of damages to what others would. In some cases clearly the party comj)laining may have sustained no substan- tial damage, e.g., in the case of the breach of a contract to buy goods where the price of the goods has after- wards gone up, for here there has been no loss to the vendor, and it will be the duty of the judge to direct the jury to award only nominal damages [z). In other cases proof may be given of an injury possibly causing some damage not necessarily nominal, but which can- not be estimated except by ordinary opinion and judg- ment, e.g., in an action against a banker for not honouring his customer's cheque {a). In other cases there are what are called special damages, that is, substantial and real damage, reasonably or probably caused by the act of the defendant (h). In our second division of the subject of damages, the general rule to be followed by the jury in assessing these special damages will be noticed (c). for it. Differences between nominal, general, and special damasres. Cases in which There are two cases in which, although a person may, \ rhis^rrht pj^ii^^^ily speaking, be entitled to damages, yet he may to damages or ~— a portion ^^^ g^^ judicature Act, 1875, Order xiii. rr. 3, 4, 6. thereof. ^^^ g^g ^j/,j,y ^ White, 1 S. L. C. 251 ; Lord Raymond, 938. (2) See Marzetti v. Williams, 1 B. & A. 415 ; Broom's Corns. 610 ; Mayno on Damages, 4, 5. («) See as to these, per Cresswell, J., liolin v. Stevmrd, 14 C. B. 605 ; Broom's Corns. 610. (6) Broom's Corns. 610. (c) Post, pp. 354-362. ON DAMAGES. 349 lose his right to them, or at any rate his right to a considerable portion of them. The first of such cases is where the defendant shows some fact in mitigation of the damages, e.g., in an actioETBrought for the price of some article which has been warranted by the plain- tiff, the defendant can give in evidence the breach of the warranty in reduction of the damages, or to the extent even of showing that the plaintiff is entitled to recover nothing (c?), or, as has been shown (e), in an action for libel, the defendant may mitigate the damages ] by showing that an apology has been given or offered. 1 The other of such cases is that of set-off, that is, where the defendant has some counter-claim against the plaintiff, and upon this point the student will bear in mind the very important provision contained in the Judicature Act, 1875 (/). Where a person has suffered injury from the tortious a person who act of another, and has brought an action and recovered 'j'^'^ i-ecovei-ed '-' damages once, damages for it, he cannot, on further damage resulting cannot bring to him from the act, brine; another action, for it is all 5^'^°*'^^^" ^^''f^ ' o 3 in respect oi presumed to have been contemplated in the original the same act. action. Thus, if A. has met with a railway accident, i and recovered damages for it, and afterwards the injury ' turns out more serious, still he can have no fresh action {g). The plaintiff, in his statement of claim, has to set The jury forth the amount of the damages which he claims, and c^innot award . . ^. ° more damages the jury, m awarding the damages, must take such than the plain- amount as their maximum, and cannot go beyond it, ^''^ claims, unless the Court allows the claim to be amended (A). Although the jury have a discretion in awarding the Though the question of ' damages is for (cZ) Mayne on Damages, 71; ante, p. 85. ^^^ Jl^T', ^ ie) Ante, p. 311. ^"^^^ t"al may (/) 38 & 39 Vict. c. 77 ; Order xix. r. 3 ; Ante, pp. 208-211. sometimes be (g) Per Best, C.J., Richardson v. Mellish, 2 Bing. 240. giantea. (A) Mayne on Damages, 97, 440. 350 ON DAMAGES. amount of the damages, such discretion is not quite absolute, for if they give damages which are manifestly . • either grossly excessive in comparison with the injury ■^itiTiZ^tT.^ ut^n -^^ sustained by the plaintifi', o r utterly inadequat e to it, ^ ^ cl...-^t rfAA^''<^^thc Court may award a new trial {i). p^u^^jjjj^f^fi f^-^-is.' This power of the Court, however, to grant a new trial on the point of inadequacy or excess of the dam- ages, is very carefully exercised. For the Court to grant a new trial on the ground of excess, the damages must be shown to bo so clearly too large that the jury, in awarding them, must have acted under some wrong motives or some misconception or mistake ; if it is simply a case of uncertain damage, the mere fact that ' the Court, to whom the application is made, would have awarded a less amount, is not sufficient to entitle the person to a now trial {h). In the case of smallness of damages also the Court will rarely interfere, unless some misconduct or accident, error or mistake on the part of the jury is shown (I). And in applications for a new trial on either of these grounds, it is not customary to grant it unless the judge before whom the action was [ tried expresses himself dissatisfied with the damages awarded. An action, It has been stated that the main object of an action **"^afi^ 'il ^^ generally to recover compensation for the injury com- need not ' plained of {m), but this is not invariably so— for in- !v?r damri''*' staucc, an action may be brought for an injunction against the commission or continuance of some act by the defendant, such as waste, and although damage may be claimed for the injury already done, yet sometimes the injunction is what is particularly desired (w). Two (t) Mayne on Damages, 455, et seq. (k) See Chambers v. Caulfield, 6 East, 256. (0 liendall v. Ilayward, 5 Bing. N. C. 424 ; Richards v. Rose, 23 L. J. Ex. .3. im) Ante, p. -344. (n) An injunction may be granted Ijy any division of the High Court of Justice. ON DAMAGES. 351 cases, in which the action need not mainly be for damages, may specially be mentioned. It is provided by the Common Law Procedure Act, Provision of 1854 (o), that in any actioiTIn respect of the wrongful J^^'J^^p^^dui ctetention of goods or chattels the plaintiff may apply Act, 1874, to the Court or a judge on a verdict being given for ^' him, to order execution to issue for the return of the particular goods, without giving the defendant the option of retaining them or paying their value, and the Court may, at discretion, so order (p). Prior to this Act, the judgment was always for the return of the goods themselves, or for payment of damages for their value, the defendant having the option of which he would do. Where a person has contracted to buy goods or chattels, formerly his only remedy was an action for damages for the breach of the contract, but now, under the provisions of the Mercantile Law Amendment' Act {q), he may, in some cases, obtain the specific de- livery of the goods or chattels contracted for. That Act provides (r), that in all actions and suits in any of Provision of the superior courts for breach of contract to deliver yj^.t^^^.'^gy*^ specific goods for a price in money, on the appUcation s. 2. of the plaintiff, and by leave of the judge before whom the cause is tried, the jury shall, if they find the plain- tiff entitled to recover, find by their verdict what are the goods in respect of the non-delivery of which the plaintiff is entitled to recover, and which remain unde- livered ; what (if any) is the sum the plaintiff would have been liable to pay for the delivery thereof; what damages (if any) the plaintifi' would have sustained if the goods should be delivered under execution as there- 1 (o) 17 & 18 Vict. c. 125, s. 78. Ip) See also ante, pp. 282, 283. ((/) 19 & 20 Vict. c. 97. (/•) Sect. 2. 352 ON DAMAGES. , inafter ineutioned, and ^Yhat damages if not so deliv- ered ; and thereupon, if judgment shall be given for the plaintiff, the Court or any judge thereof, at their or his discretion, on the application of the plaintifl', shall have power to order execution to issue for the delivery on payment of such sum (if any) as shall have been found to be payable by the plaintift', as aforesaid, of the said goods, without giving the defendant the option of retaining the same upon paying the damages assessed ; and such writ of execution may be for the delivery of such goods. If such goods so ordered to be delivered, or any part thereof, cannot be found, or unless the Court or a judge shall otherwise order, the sheriff or other officer of the Court is to distrain on the defendant's lauds and chattels within the jurisdiction of the Court, until the defendant delivers the goods, or, at the option • of the plaintiff, cause to be made of the defendant's ^ goods the assessed value or damages. And the plaintiff, in addition to the specific delivery of the goods as afore- said, is to be entitled to have made from the defend- ant's goods the damages, costs, and interest in such action (s). Where Where damages are awarded by a jury against several recovered as i defendants, it is in the option of the plaintiff to levy against severai,!the wliole against auy one of them. If the action is on the whole can ' be levied _^ against one. (s) See this also, ante, pp. 81, 82. Prior to the Acts mentioned in the foregoing two paragraphs (17 & 18 Vict. c. 125, and 19 & 20 Vict. c. 97) courts of law had no power of giving specific delivery of chattels which is by them given. But the Court of Chancery had long had a power of I giving specific delivery of chattels wrongfully detained, but only when the ' chattel was of some special and peculiar value for which damages would not [Compensate : see Fuse;/ v. Pusey, and Duke of Somerset v. Cookson, 1 White and TuJor's Leading Cases in Equity, 820, 821, and note. It will be ob- served that the powers given by the two Acts just mentioned to the courts of law were quite irrespective of any special or peculiar value in the chattel. There was one respect also in which the remedy in Chancery, when it could be taken, was more beneficial, viz., that that court could enforce its decree by attachment, while the judgment at law could only be enforced by dis- tringas. Under the Judicature Act, 1873, it would a])pear that any divi- sion of the Court can give specific delivery of chattels either under these Acts or on the princi])le of special and peculiar value formerly acted on by the Court of Chancery. ON DAMAGES. 358 contract, however, that one has a right to a propor- ' tionate contribution from his co-defendants, but if in respect of a tort he has no such right (t). A person against whom damages are awarded is, of Liahiiity of ;m course, liable to have the judgment fully enforced 'f.l:;';",''"" '" "" against him by execution, but in the case of an executor defendant, although he is personally liable for the costs, ^ yet he is not for the damages, but only his testator's estate, unless he has set up some defence he knew to be false, when on default of the testator's estate he will be personally liable. He will, however, be person- ally liable to the fullest extent when he has in writing, for consideration, agreed to pay his testator's debt (u), or where he is sued on some contract he has himself entered into, e. g., where he personally gave instruc- tions for the funeral, he will be personally liable («). If an executor plaintiff sues and fails, he will be liable 1 for costs in the same way as an ordinary plaintiff,! unless the court otherwise orders (y). Damages are, generally speaking, assessed by a jury, Damages arc but when they are really and substantially a matter of ^s'eS by a calculation, — e.g., all cases of complicated accounts juiy, but not between the parties that cannot be conveniently dis- ''^'^^''''^''^• posed of by a jury in the ordinary way, — it has long been the practice to refer them for assessment to one of the masters of the court {z). And also under the , present j)ra,cticej damages may be assessed in any way [ in which any question arising in an action may be \ tried (a), i. e., either before a judge or judges alone, or '■ before a judge with assessors, or before a judge and {t) Mernjii-eather v. Ntxan, 2 S. L. C. 527 ; 8 T. R. 186 00 Ante, p. 39. (.r) Mayne on Damages, 398-404. (,V) 3 &" 4 Wm. 4, c. 42, s. 31. (v) 15 & 16 Vict. c. 76, s. 94. (ii) .Judicature Act, 1875, Order Xiii, r. 6, and Ordt-r xxix. r. 4. 2 A ^^t;^^r-:^.^^;.i^i^~ -\- — ^J ^^]^ i^'^^g^ "^ summing up / c/vCi . i« ) .Judicature Act, 1875, Order xxxvi. r. 2. (c) Broom's Corns. 610. {(1) See per Patteson, J., in Kelly v. Partinjton, 5 B. & A. 645. (e) Mayne on Damages, 26. (/) 9 Kx. 341. (//) Per Pollock, C.B., Wilson v. Newport Dock Co., L. K. 1 Ex. 189. ON DAMAGES. 355 it were sent any day before 12 o'clock it would be delivered the following day. Accordingly the shaft was entrusted to the defendants to carry, and the carriage paid, but through the defendants' neglect it was not delivered in the proper time, and the making of a new shaft was through this delayed for several days. The plaintiffs contended that in estimating the damages the loss of profits caused by the stoppage of the mill should be considered, but the court decided that they could not be taken into account, the rule being that the damages in respect of breach of contract must be such as might fairly and reasonably be con- sidered, either arising naturally from the breach, or such as might reasonably have been supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it ; here the mere fact of what the servant had told the clerk, in the absence of any express or • implied contract on his part that special diligence should be taken on that account, was not sufficient to make this loss of profits damages that might reasonably be expected to flow from the breach. The case of Kellij v. Partington (h) furnishes an Keiiij v. illustration of the rule arising in an action of tort, ^' "'^"^o^o" - , That was an action by a servant for slander, the words not being actionable in themselves, and the plaintiff sought to prove as damages the fact that in conse- quence of the slander, a third person had refused to i employ her, which he otherwise would have done ; but the court held that as the words used would not naturally lead to such a result such damages were too remote. The rule that the damage complained of must be As to whethei the natural and probable result of the act complained ^^^ communi- ^ ^ cation by plaintift' to defendant of special circum- (/') 5 B. & A. (M'). stances will 356 ON DAMAGES. r.-nder of is most difficult of application in cases in which some resulting Special facts have been communicated by the plaintiff therefrom to the defendant which are alleo-ed to have brought the recoverable, , i • i , • i • n' • i although damage complained of withm his knowledge, so as to therwouid ^^^6 i* t^e natural and probable result, though other- have been too wise it would not have been. Thus, in the case of remote. EadUy v. Baxenclah (i), the plaintiffs' servant certainly- told the defendants' clerk that the mill was stopped, but yet it was held that this was not sufficient to make the loss of profits the natural and probable result of the defendants' negligence, yet, had the notice been more specific and detailed, a diff'erent decision might have been arrived at, for there have been cases deciding that where a plaintiff' has given a ^ defendant notice of some particular circumstances, or where a defendant was, or ought to have been, aware of some such circumstances, he can prove as damages what he certainly could not so have proved had he not given such notice, or had not the defendant known of it, or been in such a position that he ought Difficulty of to have known of it (k). It is very difficult, if not t^e"cases°fn^ impossible, howcver, to reconcile all the cases in which the point. the fact of notice, or knowledge of some special cir- cumstances, has been held sufficient to render damages arising from it recoverable as not being too remote, and difi^erent rules have been laid down upon this point : thus in one case " The damages are to be what ' would be the natural consequences of a breach under circumstances which both parties were aware of" (l), but this rule would appear too wide viewed by the side of the following one : " The knowledge must be brought home to the party sought to be charged under such circumstances, that he must know that the person (j) Ante, pp. 354, 355. (/i) Smecd v. Foonl, 28 L. J. (Q.B.) 178 ; Collard v. South Eastern Rii. Co., 30 L. J. (E.X.) 393 ; Cortj v. Thames Irvmcorks Co., h. R. 3 Q. B. ISl ; 37 L. J. (Q.B.) 68. (J) Per Blackburn, J., in Cvry v. Thames Ironvorhs Co., L. R. 3 (l 15. 186. ON DAMAGES. 357 he contracts with reasonahly believes that he accepts the contract with the special conditions "(m). ' One thing, however, is clear, from all the cases, cieai-ly, hew- viz., that to render damage caused from some particular ^^''^^"' ^^ "* °°*^ ' o _ J- necessary to circumstance recoverable, it is not always necessary render such that such special circumstance should be included in Recoverable the contract between the parties; in some cases that the notice of it to the defendant, or his knowledge ^tanlTes Thouid' of it, or the fact that he ought to have known of h-^^e been it, is sufficient to render damages recoverable that (.^e contract, otherwise would have been too remote. And if the notice is given in such a way that it forms the basis of the contract in the eyes of both parties, so i that it may, indeed, be considered as an implied term 1 in the contract, then this is always so (w). No damages can be awarded in respect of any act of Damages the defendant done before the plaintiff's particular cause f ^'f/'^ P^''°^' ■•■ _ _ ••- to the cause of action arose (o), but damages arising subsequently of action to the cause of action may be awarded where they recovered but ' appear to be the natural and necessary result of the damages act complained of, and do not in themselves constitute '^ome'tfnier" some new cause of action (p). may. In actions upon contracts the measure of damages in actions ex never depends upon the motives which led the de- ^"[[^'efoaL fendant to break the contract, for however evil the defendant intention of the plaintiff may have been in breaking theTamfges, his contract, that fact cannot be taken into considera- except in the tion. Thus, the defendant may have, from motives of breach ^of annoyance, or even worse motives, refused to pay a promise of debt due until actually compelled to do so, yet all ™'^^"^='*^- (hi) Per Willes, J., in British Columbia Saw Mill Go. v. Xettleslup. L. K. 3 C. P. 509. (n) And see hereon Mayne on Damages. 8-21 ; also uutes to Vicars v. Wilcocks, in 2 S. L. C. 549-552. (o) Mayne on Damages, 58. OO Ibid. 59. 358 ON DAMAGEB. that can be recovered is the amount of the debt, with interest in some cases, which will presently be noticed (q). To this rule, however, there is one ex- ception, viz., an action for breach of promise of mar- riage, which, though strictly speaking an action on a contract, yet so strongly j)ertains to a tort, that the motives of the defendant in committing the breach are often a most important point, as also the position in life of the defendant (r). In this action, therefore, the principles stated in the next paragraph will gene- rally apply. But it is otherwise in actions ex delicto. In actions for a tort, the motives of the defendant in committing the tortious act are, however, all-im- portant, for in such an action any species of aggra- vation will give ground for additional damages (s). Thus, if two assaults are committed, the one perhaps unintentionally, or at any rate hastily, or with some circumstances of an excusable nature, the other pre- meditated and fully intended, and jierhaps accompanied with insulting or opprobrious exj)ressions or other cir- cumstances of aggravation ; in the latter, case naturally very much heavier damages will be given than in the former, although practically the plaintiff may not have sustained any greater or more substantial injury than in the other cases. Instances might be multij^lied to any extent, for almost every action for a tort will be found to constitute an instance in itself more or less striking. Looser prin- ciples are observed in awarding damages in actions ex delicto than in actions ex contractu. A jury, therefore, in assessing damages in tort are governed by far looser principles than in contract (t) ; and in many cases of tort the jury are justified in giving damages quite beyond any possible injury sus- (q) Mayne on Damages, (r) Ibid. 21, 375, 376. (s) Ibid. 23. (0 Ibid. il-23. ON DAMAGES. 359 tainecl by the plaintiff, on the ground that the action is brought to a certain extent as a public example, and /) /- b damages, when so awarded, are styled exemplary ov \^ y-^—^^-^^^y—^ " vindictive damages (u). As an instance of this parti-/ «^-t (^ li ^m^mXil cularly may be mentioned actions for seduction (x). ' It was formerly laid down as a rule in actions of Although it tort, that not only must the damage be the natural ''''''' ^'"^eriy SO consiciGrGd and probable cause of the defendant's act, but also that yet now it is' the ivronqful act of a third person, even although it ""t necessary •^■^ ^ ' o that damage might be the natural and probable cause of the de- sustained fondant's act, could never be taken into consideration /" "afconse-^^ in assessing the damages against the defendant, or, in quences of the other words, that damages must be the natural arid legal '.^1;^°°' ^^^^ "^ consequence of the defendant's act (?/). The practical working of this rule may be well illustrated by an extreme case. Supj)Ose that the defendant had slan- dered the plaintiff openly before a number of j)eople by using words leading them to believe him guilty of some such disgraceful action, that they might naturally have been expected to set upon the plaintiff and ill-use him in consequence of their belief in such words, as by putting him in an adjacent pond or otherwise ; and supjDose this to have been not only what might have been expected, but also what actually occurred, yet as such an act was of course an unlawful one on the part of such third persons, it could not have been taken into account by the jury in estimating the amount of the damages, as though under the circumstances the natural, it was not the legal consequence of the act (2). This former rule was, therefore, manifestly unjust. (m) Buckle V. Money, 2 Wils. 205 ; Fahrkjas v. Mostyn, 2 W. Bl. 929 ; Emhlen v. Alyers, 30 L. J. (Ex.) 71 ; Bell v. Midland By. Co., 30 L. J. (C.P.) 273. (x) Per Wilmot, C.J., in Tullidgc v. Wade, 3 Wils. 18. (?/) Vicars r. Wilcocks, 2 S. L. C. 534 ; 8 East. 1 ; Morris v. Langdale, 2 B. & P. 284. (<;) See per Lord Wenslcydale, in Lynch v. Kniyht, 9 H. L. Cas. 577. 3G0 ON DAMAGES. and must now be taken as clearly not law (a). It was Litmicy V. Gyc. finally overrnled in the case of Liimlei/ v. Gy^, which is cited below, and the facts of which have been pre- viously stated in discussing another point (h), in which case it will be noticed that the damage complained of was the wrongful act of a third person. When interest In actions on contracts interest may properly be recoverable. considered by the jury, and awarded by them as in- ; creasing the amount of the damages in some cases, though not in all. That this is so in the case of bills of exchange and promissory notes has been noticed in considering those instruments (c) ; also, interest may of course be given where there has been an express contract to pay it, or where a contract can be implied to that effect, as from the custom of a banking house known to the defendant, or where it has been paid in like previous transactions between the parties ; also where a bill or note has been agreed by the defendant to be given for a debt, and not given, the plaintiff may ' recover interest from the time it ought to have been given, because had it been given it would have itself carried interest (d). It has also been provided by Provision of statute (e), " that upon all debts or sums certain, pay- I |-f^^^2F^' ^^1® ^* ^ certain time or otherwise, the jury, on the ! — -^'' """ trial of any issue, or on any inquisition of damages, may, if they shall think fit, allow interest to a creditor at a rate not exceeding the current rate of interest, from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time, or if pay- able otherwise, then from the time when demand of («) Lync/i V. Kni'/ht, 9 H. L. Cas. 577 ; luiljht v. Gibbs, 1 A. & E. 43 ; Green v. Button, 2 C. M. & R. 707 ; Lian/e;/ v. Cjjc, 22 L. J. (Q.B.) 463 ; Starkie on Slander and Libel, 205 ; notes to Vicars v. Wilcocks, 2 S. L. C. 539, et seq. ; Mavne on Damages, 41. (6) Ante, p. 323. (c) Ante, p. 134. (d) Mayne on Damages, 105-111. (c) 3& 4 Wm. 4, c.^42. ON DAMAGES. 301 payment shall have been made in writing, so as such demand shall give notice to the debtor that interest' will be claimed from the date of such demand until the' time of payment. Provided that interest shall be payable in all cases in which it is now payable by law " (/). It will be observed that this is a mere discretionary Observations power to a jury, and in that respect unlike the other °° ^'^"^ statute, cases in which interest is recoverable. With regard to the demand that is required if the sum is not payable at a certain time under some written instrument, any- thing is sufficient that substantially gives the defend- ant notice that if the debt is not paid at a certain time he will be held liable for interest (g). The same Act also provides that the jury on the trial Further pro- of any issue, or on any inquisition of damages, may, if Jtau^tl.^^ '^ ""'^ they shall think fit, give damages in the nature of interest over and above the value of the goods in actions for wrongful conversion or trespass to goods, and also over and above all money recoverable on policies of insurance made after the Act (h). There are some few cases in which it has been pro- Double ami vided by statute that double or treble damages shall be j^']|^!|;,es recoverable, e.g., in the case of a wrongful distraint for, rent where no rent was actually due, there the party j so wrongfully distraining forfeits double the value of I the chattels distrained on, together with full costs of suit {i). A defendant may now in some cases obtain substan- A defendant tial damages against a plaintiff, for the Judicature Act, "^^jg^Xc Judicature Act, 1875, obtain (/) 3 & 4 Wm. 4, c. 42, s. 28. damages (a) See Mowatt v. Lord Londeshorouqh, 23 L. J. (Q.B.) 38. against Ihc (A) 3 & 4 Wm. 4, c. 42, s. 29. ' plaintiff in (J) 2 Wm. & M. scs. 1, c. 5. s. 5 ; Add. on Torts, 1001, 1002. .lu action. 362 ON DAMAGES. 1875 (A-), allows any counter-claim to be set np by a defendant against a plaintiff. Thus in a recent case that occurred a solicitor brought an action against his client for slander, in alleging that he, the solicitor, had been guilty of negligence. The defendant set up as a counter-claim that the plaintiff had actually been guilty of negligence, and claimed damages in respect of that negligence, and substantial damages were awarded by the jury to him. In all such cases of course the general rules as to the measure of damages will apply. 3. Damnges in 3. Damages in every particular case depend more or less on the general rules as to the laid down in the preceding pages. some par- j ^j^^ general rules as to the measure of damages tieulur cases. " " Damages Where, on a contract for sale of land, it turns out recoverable ^^^^t the vcndor has no valid title to 'convey to the by a purchaser purchaser, naturally the latter has a right of action contract^to"^ '^ against the former, and he is entitled to recover as his sell land. damages any expenses he has properly incurred in in- ' vestigating the title, and also, if he has paid a deposit, such deposit and interest thereon (Z), but he is not generally entitled to recover anything for expenses incurred purely on his own behalf and not actually ne- cessary, e.g., surveying the estate, nor any expenses he has incurred before the proper time for doing so, e.g., the preparing of the conveyance in anticipation of matters being all right (w). As no man can be absolutely certain that he has a perfect title to land which he contracts to sell, it is con- sidered that contracts for the sale of land have expressed on them the condition or proviso that they are only to take effect in the event of the vendor turning out to have a good title, and therefore, generally speaking, if {K) 38 & 39 Vict. c. 77, Order Xix. r. 3. \V) Mayne on Damages, 135. (w) Ibid. 136. ON DAMAGES. 363 the contract is not carried out, tlirongli a defect in the title of the vendor, the purchaser is only entitled to the damages specified in the last preceding paragraph (n) ; Damages but if a person has oSered for sale an estate to which ^^^here veador he knew he had no title, and to which ho had no rea- knew he had sonahle expectation of gaining a title, the purchaser is ^ entitled further to reasonable damages for the loss of ' his bargain, on the principle that he is entitled, so far as money can do it, to be placed in the same situation as if the contract had been carried out (o). But the purchaser is not entitled to recover as damages the ; profit that he would have made on an agreed re-sale of I the estate, or any expenses of such re-sale, unless there has been some fraud on the part of the vendor (p). If the breach of a contract for the sale or letting of Or wilfully land arises from some matter other than title, e.ff., if Convey. " the vendor wilfully refuses to convey or let to the plaintiff, all reasonable special damage that he has under the circumstances sustained may be recovered, so that this would certainly bring in the loss of profit , on an agreed re-sale (q). And the plaintiff is also generally entitled, in addition, to specific performance of the contract (r). In an action against a purchaser of land for refusing Damages to complete as he should have done, the damages that letoverabie n -II ■ agaiust a the plaintiff is entitled to recover are not the full price purchaser for agreed to be paid, or the value of the land, but the loss J^Jj^'J"!,*^ he has actually sustained by the defendant's breach of i contract, which would in most cases be the expenses the plaintiff has been put to, and any special inconve- nience he has suffered, and the difference between the price agreed upon and the sum produced on a re-sale (s), (n) See Fleureau v. Thornhill, 2 W. Bl. 1078. (o) Bobinson v. Harmin, 18 L. J. (Ex.) 202. (jj) See Mayne on Damages, 136. \q) Engcl v. Fitch, L. K. 4 Q. B. G59. (r) See Snell's Principles of Equity, 450, ct seq. (s) Laird v. Pijm, 7 M. & W. 474. 561 ON DAMAGES. Under the ordinary stiinilation, that, if the piir- , chaser fails to comply with the conditions of sale the o deposit shall be forfeited to the vendor, the vendor is - entitled to forfeit it on such an event (t) ; this does not j preclude him from bringing an action against the I vendee also, but if he does so the amount of the deposit will be taken into account in calculating the damages(w). •i^ w-^t^'^ Damages "Where an action is during the continuance of a lease i-'^U-!tJ-»*-i-ecovei-ablc in jj^.Q^gi^t by the reversioner for breach of a covenant to repair, the measure of damages is generally considered 'to be the real injury that has been done to the rever- sion {x) ; but if the lease has actually expired, then the measure of damages will be what it has cost or will cost to put the premises in proper repair (y). 4^u»^ i4>*^ rf t-J^ • an action by '^ a reversioner h j>« j^" ti^ for bveach ■ ^. ot" a eovcnaut C:'(-^, i: , , ~ „ to reiiair. Damages for In the case of trespass or other injury done to land, trespass, &c., |.|^g actual occupicr of it is naturally the person entitled to laud, may ^. ■ n i ■ ■ • p sometimes be to bring an actiou, but if the injury is one oi a per- recovered,both^^j^gj^^ nature that tends to depreciate the value of occupier and the inheritance as well as the immediate ownership, sioner'*' ^°^ '^^^J ''^^J ^^® occupior suc but also the rever- sioner (z), which has been well instanced by the case of injury done to trees where the occupier would have his right of action in respect of the loss of shade from them, and the reversioner for the loss of the timber (a). Mesne j)rotits. V^ ty. (^, In any action for recovery of land, damages may also be recovered, which damages will generally be the loss of the profits of the land by the plaintiff during the I period of the defendant's wrongful possession, which damages are styled mesne profits (b). (/) lllnton V. Sparkcs, I>. 11. 3 ('. P. ItJl. (».) Ockenden v. Ilenly, 27 L. J. (Q.B.) 361. (j) Mayne on Damages, C91, et seri. (,/) Ibid. 193. (j) Jesser v. Gifford, 4 Burr. 2141. («) See Bedingfield v. Onslow, .'5 Lev. 2u9. (6) .Judicaturc'Act, 1875, Order xvu. r. J ; lirowii's Law L'ict. 2;j(3. ON DAMAdES. 305 In the case of a contract for the sale of goods, on the damages 11 1 11 «recc)verable breach of it by the purchaser, the proper measure ot against a damages is the difference between the contract price of pui(-haser of T 1 n , ,-1 I- goods tor the goods and the market value thereof at the time b,.each of that the contract ought to have been completed (c), and contract. the best evidence of the market value at that time will be the proof of the re-sale of the goods by the plaintiff and the sum produced by such re-sale. To make the rule plain by an instance, A. agrees to sell certain hops to B. for lOOZ., to be delivered on a certain day, B. refuses to receive them, and by that day the hops, having gone down in the market, are worth only 70/. ; here the sum A. will be entitled to recover against B. will be the difference of 30Z. If A. has directly after the day re-sold them, and they have produced only the 70/., of course this will be all stronger evidence of the market value. If, however, in this case the hops had , gone up in value, here, as the plaintiff would have suffered no substantial harm, he could only have re- : covered nominal damages. But if there is not merely a contract for the sale of Where the goods, but the property in the goods has actually passed tiVe^Joojs'" to the purchaser (d), although they may not have been' has passed, the delivered, here the vendor may recover the full amount recoverable. of the price agreed to be paid by the purchaser (e), unless, indeed, the contract has in any way been of an unconscionable, oppressive, or fraudulent nature, in which case the jury are sometimes allowed to disregard the precise terms of the agreement actually made and to give fair and equitable damages only (/). On the breach of a contract for the sale of goods by Damages a vendor in not delivering them, the measure of damages ['^'''^^'''^■■''•''' o" o ' D breach ot contract to " deliver goods. (c) Philpotts V. Evans, 5 M. & W. 475. (d) As to when the proj)erty in goods passes, see ante, pj). G9- (c) Alexander v. Gardner, 1 Bing. N. C. 671. (/) Broom's Corns. G19. o()G ON DAMAGES. • Am^jl is " the diftereiicc between the contract price and that which goods of a simihir description and quality bore at the time when they ought to have been delivered, because the purchaser has the money in his hands, and 'V. 1 ^ might have purchased other goods of a like quality the very day after the contract was broken. Therefore a buyer cannot recover the loss of profit which he would have made by carrying out a contract for re-sale at a higher price made in the interval between the first contract and the time for delivering " (^). Damnges In actions for the breach of a warranty (h) the mea- recoverabic in ^^^.^ ^£ ^ij^j^j^o-gg must depend Considerably upon the cases or breach o _ i- ,j i of warranty, fact of the article having been returned or not. In previously treating of warranties it has been pointed out *K- \ f , that in some cases the vendee has an absolute right to return the article warranted, whilst in other cases he 1,^ /*ii '■ I ^^^^ ^^ rigid to do so, but is confined to his remedies ^*^ ' •» vT other than this («'). If the vendee, having the right to '^if^^^'^^ «^ VC ^ ^^ g^^ ^^^g return the article, or though not having the right, yet does so with the assent of the vendor, and \ has not before paid the price, if he has not suftered any } special injury he will be entitled to nominal damages ' only, and if he has paid the price and suffered no injury beyond that, then the measure of damages will be the price paid (Ic). If any special injury has how- ever resulted, then, in all cases where the article has ( not been returned, the measure of damages is the difi'er- ' ence between the value of the article had it not pos- ' sessed the defect warranted against but been as it should be, and the actual value of the article with the defect (l) ; and the best evidence of the value of the (_(/) Mayne on Damages, 120 ; and see cases there cited. See also, as showing that the general rule may be departed from in some cases through the comluct of the defendant himself, Ogle v. Earl Vane, L. R. 2 Q. B. 275 ; Ex. Ch. L. R. 3 Q. B. 272. (A) As to what will amount to a warranty, see ante, i)p. 82, 83. (i) See ante, j). 8o. (/:) Mayne on Damages, 129. (0 iJinijle V. /fare, 7 C. B. (N.S.) 145; Mayne on Damages, 130; Broom's Corns. 62-t-. ON DAMAGES, 367 article with the defect must necessarily he the sum which it has produced on a re-sale. If a carrier of goods (ni) does not deliver them Damnges within the proper time, and the consignee therefore ag'a?nst''a " refuses to receive them, or if by the neglect of the c^njer of carrier they are lost, the damages recoverable will be *"""' '' the true value of the goods, and also any further damages naturally resulting from the contract, AVhat will be deemed the natural consequences of the carrier's neglect has already been sufficiently considered (n). With regard to actions against a carrier of passen- And agninst a gers or any other person for some personal injury passengers. caused by the defenclant's negligence, the measure of damages consists in the substantial injury the plaintiff has suffered by the expenses of his cure, his loss of time and consequent injury to his business, and the ^ general pain and discomfort he has been put to {o\ and the fact of the plaintiff having through an in- surance received compensation for his accident cannot be set up by the defendant in mitigation of damages (|:»), AVith regard to actions under Lord Campbell's Act (q) Particularly in the rule has been stated to be " that the damages should Lord'camp" be calculated in reference to a reasonable expectation] IjcU's Act. of pecuniary benefit, as of right or otherwise from the continuance of the life " (r), which means that the jury cannot speculate on mere probabilities of advantages that might possibly have ensued to the persons for whose benefit the action is brought, nor can they look to the grief caused such persons by the death, but they may consider the fair loss of comforts and con- (?n) As to carriers generally, see ante, pp. 91-96. (n) See ante, p. 354, et seq. ; and case of Hadley v. Baxendale, there quoted and referred to. (o) Mayne on Damages, 351 ; and see as to how far this principle will be extended, Armsvmrtk v. South Eastern By. Co., 11 Jur. 760. (p) rates V. Whyte, 4 B. N. C. 28S. (q) 9 & 10 Vict. c. 93, as to the provisions of which see ante, pp. 330-332. (r) Per cur. Franklin v. Sotith Eastern By. Co., 3 H. & N. 211. 3(38 ON DAMAGES. venieuces to such parties tliroiigli the death, for tliis is fairly within the pecuniary loss for which the action is hronght (s). And in calculating this pecuniary loss the jury may consider any reasonable probabilities of pecu- niary benefit capable of being estimated in money, e.g., , that the deceased who had been in the habit of contri- buting towards the support of a relative, for whose benefit the action is brought, would have continued to have done so {t). It has been held that the jury cannot give damages in respect of the funeral expenses, there being nothing in the Act to justify their so doing («). Damngcs From the very material distinction in the nature of m-ovev:ii) e on ^.j^^ contracts of fire and life assurance (x) arises the hre and lile v ' policies. difterence in the damages recoverable in each, the damages being in the former only the actual loss in- curred, but in the latter the whole sum assured to be paid. When a Where a person is employed to do certain work, and phuntiti, ^ J t^ ^ "I. ^g j^g contracted to, but does it in though he has ' not (lone work some dift'crent way, though he cannot of course recover lor' mly'rut' the contract price, yet if the defendant has accepted xipon a what he has done he is entitled to recover upon a quantum , •< - ^ • l ^ i \ imruit. quantum meruit, i.e., as much as it deserves (y). Damages In an actiou for a trespass or other injury to land, recoverable i ^^iq general mcasurc of damages is the diminished in actions (or , „ , , n / n t • p , i trespass, or valuc 01 the land (z) ; and m cases ol trespass where other injury to j^Q real iniurv has been sustained, and there are no land. J J ' . special circumstances of aggravation, nominal damages only will be given. If, however, there are any circum- (s) Franklin v. South Eastern By. Co., 3 H. & N. 211. (0 Dalton V. South Eastern By. Co., 27 L. J. (C.P.) 227 ; Pym v. Great Northern By. Co., 2 B. & S. 767 ; 4 B. & S. 39G. (u) Dalton v. South Eastern By. Co., supra. {x) As to which see ante, p. 146, et seq. (.y) Ante, pp. 190, 191. (v) .lones V. Oooday, 8 M. & W. 1 U). ON DAMAGES. 369 stances of aggravation, or the trespass has been com- mitted after notice not to trespass, here exemplary | damages may be given quite beyond any real injury ' that the plaintiff has suffered (a). In cases of nuisances where no substantial injury Damages has been done, if it is the first time of an action having Sn''°g7p?c't^of been brought in respect of the nuisance, nominal nuisances. damages generally will only be given ; but if it is a, second or any further action for the continuance or re-i occurrence of the same nuisance, exemplary damages may be given with a view to compelling its removal (b). In any action the plaintiff may also obtain an injunc- tion, either in addition to or instead of damages. Net only the actual occupier of lands, but also the rever- sioner may obtain damages if the nuisance is of a per- manent nature (c). In an action for some injury done by a ferocious Damages animal, e.^., a fierce dog, the damages awarded to the Jjy ^plaintiff plaintiff may include, not only the actual expenses he in respect of has been put to in getting cured, but also the bodily ^^'^'g ^"j'""^ ' pain he has suffered, as by undergoing a surgical savage , . , j^ animal. For the measure of damages in an action for seduction As to damages Mr tux^.. the student is referred to the previous remarks on that '° '^ "^^'°°- /^^^, ^^^ subject (6). ^-^f{ ^;,^, ^ In actions for breach of promise of marriage the Damages in ^ ^^ q. c , only rule that can be given is that temperate and Jfg!;'^^^^^?^' ^^ ^-^"^^ reasonable damages should be awarded, the jury fairly promise of '-■"^ ^tsC^s* considering the grief caused by the breach, and the '"^^"''^S^- (a) Merest v. Harvey, 5 Taunt. 442 ; as to trespass to land, see ante, pp. 248-255 (h) Battishill V. Reed, 25 L. J. (C.P.) 290. (c) See as to nuisances, ante, pp. 255-261. (d) Addison on Torts, 214. As to injuries by ferocious animals, see ante, pp. 271, 327. (e) Ante, pp. 319, 320. 2 B 370 ON DAMAGES. probable pecuniary or social loss sustained by the plaintiff; but any evil motives of the defendant, or circumstances of aggravation, may be taken into account. Damages in aetious for assault and battery, and false im- I'risonnient. Damages recoverable in actions for malicious prosecution. The damages to be awarded the plaintiff in actions for assault and battery (/) must always depend on the circumstances of the case. In the case of a simple and somewhat excusable assault nominal damages only will generally be given, but exemplary damages may be given if there has been any special injury, or the as- sault has been attended with insult, or has been pre- meditated {(/). In actions, too, for false imprison- ment (/i), the damages must depend on the same principles. In actions for malicious prosecution (?') damages may be awarded not only in respect of the actual pecuniary loss the j)laintiff may have been put to in defending himself, but also in respect of the injury done to his character (A-). The statute With reference to the damages recoverable in re- oe^ma^- 'affect spoct of libel or slander, the student is reminded of the iwi.^-j^r**'' the question of efi'ect in somo cases of the provisions in the statute actTSoi°iibei 6 & 7 Vict. c. 96, before noticed in treating of those or slander. SubjCCts (l). Damages recoverable against a non- attending witness. The damages recoverable against a witness who has been served with a subpoena, and whose reasonable expenses have been tendered, consist of a penalty of £10, and such further sum as may be awarded for the injury or loss sustained by the party who served him LU \>- 'I- \a C^ (/) As to which see ante, pp. 284-292. Ig) Mayne on Damages, 349. (/t) As to which see ante, pp. 292-300. (i) As to which see ante, pp. 300-302. (/;) Mayne on Damages, 345-349. (0 See ante, chap, v., pp. 303, et seq. W '^ i^. ^-V ON DAMAGES. 371 with the subpoena (m). If, through the non-attendance of the witness, the party gets the trial postponed, the proper measure of damages will be the expenses of going down to the trial and of getting it postponed, and all costs incidental to such postponement. In an action against a sheriff (n) for having by his Damages negligence allowed some person arrested by him for sheriff for debt to escape, although formerly the damages recover- negligence in able against him were the full amount of the debt, yet writ"of''c«.\«. this is not always so now, for the measure of damages i is the value of the custody of the debtor at the time of his escape, that is, if he was reasonably or probably able to satisfy the debt, the full amount will be awarded, but if he had no means, or very slight means of doing so, then the damages would be very i much less. And if the plaintiff has by his conduct prevented the defendant from retaking the debtor, or has in any way aggravated or increased his loss, this will naturally affect the amount to be recovered (o). So also in an action against a sheriff for negligence Or a writ of in not having levied on goods when he might and-^'-^"" ought to have done so, the damages recoverable are not necessarily the full amount of the debt for which the levy ought to have been made or the full value of the goods, but the real measure of damages is the benefit that the plaintiff would have probably derived from the levy had it been made (jj). Thus, if in such an action it were proved that, had the levy been made, the land- lord of the debtor would have distrained for a year's rent (for which he has a claim to be paid in full before any execution), and that this would not have left suffi- cient for the plaintiff, this will be taken into account. (m) 5 Eliz. c. 9, s. 12, made perpetual by 26 & 27 Vict. c. 125. (w) As to which see ante, p. 338. (o) Arden v. Goodacre, 20 L. J. (C.P.) 184; Macrae v. Clarke, 35 L. J. (C.P.) 247 ; and see also Mayne on Damages, 357, 358. (p) Eobson V. Thelhson, 36 L. J. (Q.B.) 302 ; L. R. 2 Q. B. 642. 2 B 2 ON DAMAGES. Or aixain, if tlic debtor were a trader, and the execution for a snm exceeding £50, so that it woiikl have operated as an act of bankruptcy, and there must therefore have been the possibility of the debtor having been adjudi- cated bankrupt, and the plaintiff having through it derived no benefit, or very little benefit, ii'om his execu- tion, this will be taken into account in assessing the damages. Damages lu an actiou by a servant for wrongful dis missal (q), 7nZlJonhjl the "measure of damages is obtained "by considering servant for ^hat is the usual rate of wages for the employment dism^?sa[ contracted for, and what time would be lost before a similar employment could be obtained. The law con- siders that employment in any ordinary branch of industry can be obtained by a person competent for the place, that the usual rate of wages for such employ- ment can be proved, and further, that when a promise for continuing employment is broken by the master, it is the duty of the servant to use diligence to find another employment. If indeed the particular employ- ment could not be again obtained without delay, and if j the wages stipulated for in the contract broken were 'higher than usual, the damages should be such as to indemnify for the loss of wages during that delay, and q k^.^ ^ (for the loss of the excess of wages contracted for above V-^ ^' ^^ usuaTrate," but nothing beyond this (r). (5) As to the subject of Master and Servant generally, see ante, pp. 161-1G5. ()•) Broom's Corns. G26. OiO CHAPTER II. OF EVIDENCE IN CIVIL CASES. Having in the previous pages discussed the different rights that a person has in respect of contracts and of torts, and the damages to be awarded him in an action in respect of them, there necessarily remains to be con- sidered the important subject of the evidence to be given by a person in our courts in support of the right that he there sets up. The subject may conveniently Mode of be considered in the following order : — subject!*"^ 1. The nature of evidence generally. 2. The competency of witnesses and the admissibility of particular evidence. 3. Cases of privilege. 4. Some miscellaneous points. I. As to the nature of evidence generally. Evidence i. As to the has been defined as the proof of, or mode of proving, ^Jj^g^^f some fact or written document, and in its nature generally. may be direct, or indirect (or, as it is more usually styled, circumstantial), primary, or secondary, and there may also be admissions which may serve as evi- dence (s). By direct evidence is meant some positive Direct and or conclusive proof, bv indirect or circumstantial evi- iD^'i'ei^t •i ' •^ . evidence. dence, some proof from particular circumstances if). The division of direct and indirect (or circumstantial), evidence, more particularly applies to criminal than to civil cases, and as the present work only professes (s) Brown's Law Diet. 144. {t) See Brown's Law Diet. 62, tit. " Circumstantial Evidence." 374 OF EVIDENCE IN CIWTL CASES. to treat of civil aud not of criminal matters, that division will not be further discussed beyond explain- ing the distinction by an illustration. As an illus- tration then, let us take the case of a man prosecuted for murder, death having resulted from a pistol-shot. Proof by some one who saw the prisoner fire the shot will be direct evidence ; but if it was not actually seen, but the prisoner was found near the spot with a pistol recently discharged in his hand, and the shot fitted the barrel of the pistol, this would be in- direct or circumstantial evidence that he was the mur- derer. Primary and The divisiou of primary and secondary evidence is, ev^dence^ howcvcr, ouc that far more particularly affects civil cases, and is therefore here entitled to more considera- tion. Difference Primary evidence may be defined as the highest kind between them, of evidence which the nature of the case admits of(%), and secondary evidence as everything falling short of the best or primary evidence (x). Thus, where at a trial it is required to prove a certain contract entered into in writing, the production of that writing itself is the best or primary evidence, and a copy or merely parol evidence of what that contract contained is se- I'rimary coudary evideucc. It is a rule in every case, without e\i. L-nte, w^^^ cxception, that the best or primary evidence must be j)ossible, m always be given. Reason of the rule, as stated ill pDwell on Evidence, given (y) ; thus, in our instance of proof required to be given of a contract that has been entered into, if it is in the power of the party requiring to prove it to produce the original contract he must do so, for if he can, then he is not permitted to give proof of it other- wise than by the very contract itself. " The rule is (m) Brown's Law Diet. 145. (x) Ibid. (y) Powell's Evidence, 60. It has, howevur, now been provided by 39 & 40 Vict. c. 48, with reference to banker's books, that entries therein may be proved by affidavit without jiroductiou of the books themselves. The student is referred to the Act itself. OF EVIDENCE IN CIVIL CASES. 375 fonnclcd on the presumption that if inferior evidence is oftered when evidence of a better and more origin.al nature is attainable, the substitution of the former for the latter arises either from fraud or from gross negli- gence, which is tantamount to fraud. Thus, if a copy of a deed or will be tendered when the originals exist and are producible, it is reasonable to assume that the person who might have produced the original, but omits to produce it, has some private and interested motive for tendering a copy in its place " (z). And although the person may not have the best or And a person, primary evidence actually in his possession or power, \^^^^^^ ""'' yet if he can by any means cause its production he is primary bound to do so (a). This is well shown by the fact that 2' own ^'^ if at the trial of an action one of the parties rests his possession, • 1 •!.• • 1 • J.) must do all he evidence upon some writing m his opponent s posses- ^^^ ^^ ^,^^2^;^ sion, before he can give in evidence a copy of it, or it- parol evidence of its contents, he must give to the other party a notice to produce the original, and then Notice to if it is not produced, having done all in his power to P^'o^'^ce. get the best or primary evidence, he is allowed to give his secondary evidence. This notice to produce is prac- tically given before the trial of nearly every action, there generally being some documents in the oppo- nent's possession which the other party considers ought to be laid before the jury (h). There are no degrees of secondary evidence ; when a There are no person has done everything he can to get the best or fg^o'^j^^ry primary evidence, and thus entitled himself to give evidence. secondary evidence, it may be of any kind (e). Thus, if an original writing cannot be produced, the party may give as secondary evidence either a copy of it, or parol evidence of its contents, though of course in such a (^) Powell's Evidence, 61. (a) Ibid. 350. (6) As to the notice to inspect and admit usually given before going to trial, see post, pp. 389, 390. (c) Powell's Evidence, 62. 37() OF EVIDENCE IN CIVIL CASES. case it ^YOukl ahvays be preferable to give the copy, as being, from its greater certainty, entitled to more credence. Althougli if a person gives his opponent notice to pro- duce a deed or other document, and this is not done, he may give secondary evidence of its contents, yet if the document is not in that opponent's possession, but in the possession of a third person not a party to the When a documeut re»iuirin£c to be proved is in a third person's possession, a sitbiHcna duces , • i i • • i • 7 1 tecnm must be actu)n, here his proper course is to issue a subpoena duces issued. teciuit for such person to attend and produce it. If on such subpoena the witness wrongfully refuses to produce it, that does not entitle him to give secondary evi- dence {d), unless the witness is a solicitor, when the rule appears to be different (e). Delinition of hearsay evidence. Another kind of evidence that is sometimes allowed to be given is hearsay evidence, which has been well defined or described as some " oral or written statement of a person who is not produced in court, conveyed to the court either by a witness or by the instrumentality of a document " (/). If a person aj)pears in court and himself on oath dej^oses to a certain fact, this evidence is at first hand, but if a witness appears and deposes that a person told him a certain fact, or if a writing by some person stating a fact is produced, this is only at second hand, and is hearsay evidence. Reason of The general rule as to hearsay evidence is that it is hearsay j^^^ admissible, upon the around that it really is not on (fvidence not •■■ ." . ... b.;iug generally oatli at all, and therefore is not entitled to credibility {g); a^imitted. ^^ ^^^^ ^ wituess stating that he was told such and such a fact is at once stopped, and not allowed further Ca.ses in which to prOCCcd with that testimony. In some cases, how- hearsay evidence (contrary to the general ,.y|,,\ jj. {(1) Jesus Collerje v. Gibbs, 1 Y. & C. 156. admitted. (^) ^^''^'^««^ v- Knujht, 2 Ex. 11. (/) Powell's Evidence, 1.17. I'l) Ibid. ; Doe d. Didshury v. Thomas, 2 S. L. C. 500 ; 14 Ea-t, 323. OF EVIDENCE IN CIVIL CASES. 377 ever, hearsay evidence is, contrary to the general rule, admitted, apparently upon the principle that were it not, no possible proof of the matters could be given, and the following are the chief cases in which it is so admitted : — 1. It is admitted in matters of public or general i. in matters interest, though not in any matter of merely private "enei-ai"^ °' right (h). Here the fact of a popular reputation or interest. opinion upon the matter, or a statement made by some deceased person of competent knowledge, before any dispute arose, may be given in evidence, the par- ticular reason for it being that matters of public and general interest are generally of a very ancient date, and consequently there is a great difficulty in obtaining direct testimony as to their existence, and also because a general reputation, in a matter in which many are interested, existing when there was no dispute as to that right, is likely to be true (^"). Thus traditionary reputation of boundaries between two parishes or manors may be given in evidence, for this is a matter of public and general interest to the persons dwelling there {k). But it must be clearly borne in mind that this case of the admissibility of hearsay evidence does not extend to cases of merely private rights ; thus evi- dence of reputation of a boundary between two estates has been rejected because it is a matter which only affects the respective owners (?). 2. In questions of pedigree hearsay evidence is some- 2. in matters times admitted (m). Here, if no better proof can be °^ P^'^'^^'^^" found, evidence may be given of the common reputation in the family, or of the declaration of any deceased relatives ; thus common reputation in a family to prove (A) Powell's Evidence, 151, et seq. (0 2 S. L. C. 507. (Ji) See note to Doc d. Didsbury v. Thunuis, 14 East, 331. (0 Ibid. (m) Powell's Evidence, 174, et seq. 378 OF EVIDENCE I^ST CIVIL CASES. Avlio was the ancestor of a member of it is admissible, or to prove how many children that ancestor had («), and in a case where it was desired to prove that a member of the family had not been married, Lord Ellenborough said, what other proof could the plaintiff be expected to produce that such person had not been married, than that none of the family had ever heard that he was (o)? Under this head, too, entries in old family bibles or in prayer books have been held admis- sible in evidence {p), as also has a genealogy made by a deceased member of the family (q), and inscriptions on tombstones (r). But a deciara- It is important to observe that the declaration made tion under this i ^ person undcr this head must have been made by a heail must be •' / , , i i • -\ ■ t> i r from a relative relative either by blood or marriage, and it made by by blood or another, though much connected with the family, this marriage. ' " .,, . . . , is not sufficient, and a person illegitimate is not con- sidered as a relation (s). The person whose declaration or statement is tendered must be proved to be dead, otherwise his declaration cannot be admitted {£), but it is not necessary that the declaration should have been made at the same time as the event happened {u). "Where in an action the direct issue between the parties is the fact of some tolerably recent matter of pedigree, hearsay evidence is not admitted, but strict proof is necessary (*). 3. In cases 3. Hearsay evidence is admissible when it forms part where it forms jiart of the res (jest a. (n) Bull. N. P. 294, cited 15 East, 294, n. (o) l>oe d. Banning v. Griffin, 15 East, 293. (p) See Berkeley Peerage Case, 4 Camp. 401; Susscjc Peerage Case, 11 CI. & Fin. 85. (o) Monkton v. Attorney-Genera!, 2 Russ. & M. 147. (/•) /fnslam V. C'/ow, 19 W. K. 969. (.s) Towel I's Evidence, 175, and cases there cited. (t) Butler V. Mountgurret, 7 H. L. C. 733. (?<) Monkt'in v. Attorney-General, supra. {x) Berkeley Peerage Case, supra. OF EVIDENCE IN CIVIL CASES. 379 of the actual transaction (res gestm) which forms the subject-matter of the action. Thus, in an action for assault and battery, words or expressions of intention made use of by the defendant at the time of committing the assault may be given in evidence {y), and where in an action the legitimacy of the plaintiff was in issue, a witness was allowed to state the declaration and con- duct of the deceased mother when questioned as to the parentage of the child (z). 4 General evidence affecting a person's character 4. in matters or reputation is admissible (a). persoi^f ^ character. 5. A declaration by a deceased person who had a 5. in the case competent knowledge of a fact, and no interest to per- ^^^^^ agl^Lt a vert it, and which declaration was against the pecu- person's niary or proprietary interest of the declarant at the pvoprL^tYry' time when it was made, is evidence between third par- interest, ties, and is evidence of everything stated in the decla- ration (&). The leading case upon this principle is that of iiiijham v. Higham v. Bidgway (c). In that case it was necessary " ^""^' to prove the precise date of the birth of one William Fowden, and to prove this an entry made by a man- midwife (since deceased), who had delivered the mother, of his having done so on a certain day, and referring to his ledger, in which he had made a charge for his at- tendance, ivhich was marked as 'paid, was tendered in evidence. It was decided that, though it was of course no testimony on oath, yet it could be received, be- cause the fact of the entry of payment made it an entry against the pecuniary interest of the party. (jf) See hereon Powell's Evidence, 143-146. (?) Hanjravc v. Hargrave, 2 C. & K. 701. It may be mentioned tliat this third instance of hearsay evidence is not treated as hearsay in Powell on Evidence, but it has been thought better to treat it so here. (a) Powell's Evidence, 147. (6) Ibid. 194, 195. (o) 2 S. L. C. 318 ; 1 East, 109. 380 OF EVIDEXCE IN CIVIL CASES. It will be noticed that in this case the portion of the entry that was really required as evidence, viz., the fact of the delivery of the mother of the child, was not at all against the party's interest ; the part that was against his interest was the acknowledgment of the payment of the charge for attendance. The case therefore fully shows that it is quite sufficient for any part of an entry to be against a person's interest to render the whole of it admissible in evidence (d). On this point there is an important distinction between this and the case that will be next mentioned (e). Although the case of Eigham v. Ridgimy only goes to entries against a per- son's ijecuniary interest, yet the rule equally applies where the entry is against a lyrojprietary interest, but the interest must be either of a pecuniary or proprietary character (/). Aa entry, Where, howcvcr, an entry against interest is also however, ^|^g ^^^j evidence of the existence of the interest interest, which agalnst which it tends, it has been decided that the entry entry also • ^^ admissible (q). Thus, to refer again to the case of forms the only ^"^ ' : ° evidence of Kigliam V. Biagway, had there been no evidence that LoiVdrnTsIibie* *^^ man-mid wifc had actually attended the woman other than his own entry, it seems that the entry could not have been admitted in evidence, but there was in that case other ample proof of the attendance (li). In the case of an entry falling under the rule as being an admission against interest, proof of the hand- writing of the party, and his death, is enough to autho- rize its reception ; at whatever time it was made it is admissible {i). (d) See also per Pollock, C.B., Percival v. Nanson, 7 Ex. 1. (e) See post, p. 3S1. (/) 2 S. L. C. 331 ; per Cockburn, C.J., Jieg. v. Birmingham, 1 B. & S. 768. (°^^^ °°^- course of business ; it must also be carefully noted that here, unlike that other class of cases, only so much of the entry is admitted as it was in the course of the person's ordinary duty to make, and no matter in the entry extraneous to this can be admitted (m). In the case of an entry falling under this rule it is essential to prove that it was made at the time it pur- ports to bear date, for it must be a contemporaneous entry {n). In both this class of cases and that in which the Both this and matter is admitted as against interest, it seems that not ckss^orcase^s apply to oral statements as to entries in (A') Powell's Evidence, 206, et seq. writing. (0 1 S. L. C. 328 ; Salkeld, 285. (m) Reg. v. Birminiham, 1 B. & S. 763 ; see also 1 S. L. C. 330. (n) Per Parke, 3.,'^ Doe v. Turford, 3 B. & A, 898. OF EVIDENCE IN CIVIL CASES. ouly are statements in writing admitted, but also tliat any oral statement made by a person against his in- terest, or in the conrse of his duty, is also equally admissible (o). There are also some other cases in which hearsay evi- dence will be admitted Q)), but the foregoing are the chief. Presumptions sometimes furnish evidence. Presumption as to death at'ter seven years. Presumptions also sometimes furnish evidence. Thus it is a rule that where a person goes abroad and is not heard of for seven years, the law presumes the fact that such person is dead, but not that he died at the be- ginning or the end of any particular period during those seven years (q). This presumption — and, indeed, any presumption of law — is liable to be rebutted, and although, as stated above, there is no presumption of death, such a presumption may arise from particular circumstances. This is, however, purely matter of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims the right to the establishment of which that fact is essential. There is also no pre- sumption of law in favor of the continuance of life, though an inference of fact may legitimately be drawn that a person alive and in health on a certain day was alive a short time afterwards (r). Deeds, &c., Decds and other documents, until the contrary is are presumed gi^own, are presumed to have been executed or written to have been ' ^ executed at at the date they bear (s). their date. Deeds and wills, after a lapse of thirty years, and coming from the proper custody, prove themselves. Public records are evidence of their own authen- ticity, and deeds or wills which are thirty years old. (o) See Sussex Peerage Case, 11 C. & F. 85 ; Stapylton v. Clotcjli, B. 933 ; and 2 S. L. C. 345. {p) See Powell's Evidence, 137-225. (7) Nepean v. Doe, 2 S. L. C. 562 ; 2 M. & W. 910. (r) In re Phene, L. R. 5 Ch. 139. (.s) Powell's Evidence, 80, 81. E. & OF EVIDENCE IN CIVIL CASES. 383 and come from the proj^er custody, or from that cus- tody in which it was most reasonable to expect to find them, prove themselves (t). The thirty years are com- puted from the date of the instrument, even in the case of a will (u). Formerly, the mere statement or recital of some fact in a deed, however old, was not evidence to prove that fact ; but it has been provided by the Vendors and Purchasers Act, 1874 (x), that in the Provision of completion of any contract for sale of land made after purchasers'^ the 31st of December, 1874, and subject to any stipu- Act, 1874, as latiou to the contrary in the contract, recitals, state- q° recitairin ments, and descrij)tions of facts, matters and parties deeds, &c. contained in deeds, instruments. Acts of Parliament, or statutory declarations twenty 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 suffi- cient evidence of the truth of such facts, matters, and descriptions (y). II. As to the competency of witnesses and tlie adinissi- ii. As to the lilitii of particular evidence. competency of *''•'■ witnesses, &c. As a general rule, every person is a competent wit- ness in an action. It was, however, in very early times considered that persons not professing the Christian faith were incom- petent as witnesses (z), but the contrary was decided in the well-known case of Omichund v. Barker (a). In Omicimnd v that case the question was whether the testimony of ^"''''^'^^'• witnesses of the Gentoo religion, and sworn according to that religion, was admissible, and after a very full consideration the court decided, in an elaborate judg- (0 Powell's Evidence, 82, 83. (m) McKenire v. Fraser, 9 Ves. 5. On presumptive evidence generally, see Powell's Evidence, 66-98. (x) 37 & 38 Vict. c. 78. (v) Sec. 2. (e) See 1 S. L. C. 473. (a) 1 S. L. C. 455 ; Willes, 538. 384 OF EVIDENCE IN CIVIL CASES. mcnt, tliiit it was admissible, and that it was not neces- sary for a witness to hold the Christian faith, hut that when any witness believes in the existence of a God who will pimisli him in this world, his evidence must Decision of be admitted. In later cases, however, it was ruled that belief in a God who will punish in this world is not sufficient, but that the belief must be in a future state of rewards and punishments (h). riovision of The law, therefore, until lately was as above, and in Amendment ^^ ^^^' ^^ *^® actual taking of an oath is concerned, is so Act. 1809. still ; but a very important provision has somewhat recently been made, for by the Evidence Amendment Act, 18G9 (c), it has been provided as follows : " If any person called to give evidence in any court of jus- tice, whether in a civil or criminal proceeding, shall object to take an oath, or shall be objected to as incom- petent to take an oath, such person shall, if the presiding judge (d) is satisfied that the taking of an oath would have no binding effect on his conscience, make the fol- lowing promise and declaration : ' I solemnly promise and declare that the evidence given by me to the court shall be the truth, the whole truth, and nothing but the truth.' And any person who, having made such pro- mise and declaration, shall wilfully and corruptly give false evidence, shall be liable to be indicted, tried, and convicted for perjury, as if he had taken an oath " (d). An atheist can An atheist, therefore, is clearly under this provision moviyon give Capable of giving evidence, although, not having the evidence. neccssary religious belief before stated, of course he cannot take an oath. Criminals or Peisons who wcre infamous,— as criminals, — were for- persons of nierlv inadmissible as witnesses, but it is now provided infamous •' ^ character were formerly (6) Beg. v. Taylor, Peake, 11; Maden-v. Catanach, 31 L. J. (Ex.) 118. excluded from See also 1 S. L. C. 473. giving (c) .32 & 33 Vict. c. 68, s. 4. evidence, but (iTi Witness. credit by general evidence oi 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, the circumstances of such statement being first mentioned to him, and he being asked whether or not he has made such statement (A), and if, on being so asked, he does not admit that he made such statement, proof may be given that he did («). Where any witness has made a previous contrary statement in writing, in (e) 6 & 7 Vict. c. 85, s. 1. (/) 17 & 18 Vict. c. 125, s. 25. Ig) See notes in Day's Common Law Acts to foregoing section. Ih) 17 & 18 Vict. c. 125, s. 22. (0 Sec. 23. 2 c 386 OF EVIDENCE IN CIVIL CASES. cross examiuiug him on it it is not necessary to show him the writing, but if it is intended afterwards to contradict such witness by such writing, then, before the contradictory proof can be given, his attention must first be called to those parts of the writing which are to be used for the purpose of so contradicting him (k). Persons interested in the result of an action were formerly excluded from giving evidence, but not now. Provision of the Evidence Amendment Act, 1869. Persons were also formerly excluded from giving evidence if in any way interested in the result of the action, either as parties or otherwise (Z), but this is not at all so now. The first provision on the subject was made by the statute usually called Lord Denman's Act (m), which provided that no person oflered as a witness should be thereafter excluded from giving evidence by reason of incapacity from interest, but this was not to extend to render competent any person actually a party to any suit, action, or proceeding (?i). By a later Act (o), however, it was provided that even the parties to any action should be both competent and compellable witnesses {p), except in proceedings instituted in consequence of adultery, or in actions of breach of promise of mar- riage (q). And it has now been provided by the Evi- dence Amendment Act, 1869 (r), that the parties to any action for breach of promise of marriage shall be competent to give evidence in such action, provided, however, that no plaintifi" in any such action shall recover a verdict unless his or her testimony shall be corroborated by some other material evidence in sup- port of such promise (.s) ; and that the parties to any proceedings instituted in consequence of adultery, and (A) 17 & 18 Vict. c. 125, s. 24. (/) Powell's Evidence, 35. (m) (3 & 7 Vict. c. 85. (w) Sec. 1. (o) 14 & 15 Vict. c. 99. (/)) Sec. 2. (7) Sec. 4. (r) 32 & 33 Vict. c. G8. (.s) Sec. 2. OF EVIDENCE IN CIVIL CASES. 387 the husbands and wives of such parties, shall be com- petent to give evidence in such proceeding ; 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 (t). The student will particularly notice on the foregoing Two important Act two points : the first, that although in breach of P°!°*'' "°*^^^" promise cases and adultery proceedings the parties are made competent witnesses if they choose to tender themselves, yet they are not made compellable wit- nesses ; and the second, that mere proof by a plain- tiff in a breach of promise case of the alleged promise will not suffice, there must be corroborative testi- mony (w). Not only were the actual parties to actions excluded from giving evidence, but the rule applied to the hus- bands and wives of such witnesses (x), but this is not so now (y). The Act upon this subject, however, also provides that no husband shall be compellable to dis- close any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during the marriage (z). An idiot is incapable of giving evidence (a), and so An idiot is a lunatic except during a lucid interval, when, if '^^^^°^ g'^^ ■^ ' evidence, nor can a lunatic, — — — except during a lucid (0 32 & 33 Vict. c. 68, s. 3. interval. (m) The student will bear in mind that the above remarks are not appli- cable to criminal law. A prisoner is not capable of giving testimony for himself — of course the prosecutor may. (x) See Powell's Evidence, 46, 47. (!/) 16 & 17 Vict. 0. 83, s. 2. Iz) Sec. 3. See sec. 4 as to criminal cases. (a) Powell's Evidence, 27, 28. 2 c 2 388 OF EVIDENCE IN CIVIL CASES. duly proved that it is a lucid interval, he is a perfectly competeut -witness (b). A deaf and A deaf and dumb person is a competent witness can ^nve " through the meaus of signs, or by an interpreter, if it evidence. sccms that he has sufficient understanding (c). As to the testimony of children. Children may or may not be competent witnesses, the matter entirely depending upon whether they have sufficient intelligence. " Age is immaterial ; and the question is entirely one of intelligence, which, when- ever a doubt arises, the Court will ascertain to its own satisfaction by examining the infant on his knowledge of the obligation of an oath, and the religious and secular penalties of perjury. Although tender age is no objection to the infant's competency, he cannot, when wholly destitute of religious education, be made competent by being superficially instructed just before a trial with a view to qualify him. A judge may, in his discretion, postpone a trial in order that a witness may be instructed in the nature of an oath, but the inclination of judges is against this practice " (d). It is not now necessary to call on attest- ing witness to prove an instrument not requiring attestation. It has been stated that deeds and other documents thirty years old, and coming from the proper custody, prove themselves (e) ; in cases when this is not so, it is important to understand the different ways in which they may be proved. " It was a common law principle that where a writing was attested, the witnesses, or one of them, must be called to prove the execution of the instrument ; and it was not competent to a party to prove it even by (6) Powell's Evidence, 27, 28. The distinction between an idiot and a lunatic is that the former has always, even from his birth, been devoid of understanding, whilst the latter has by some subsequent event been deprived of it. (c) Powell's Evidence, 27, 28. (d) Ibid. 29. (e) Ante, p. 382. OF EVIDENCE IN CIVIL CASES. 389 the admission of the persons by whom it was exe- cuted " (/), The most apt and usual way even now of proving any instrument which has been attested, in the absence of admission, is undoubtedly by calling the attesting witness, but this is not at all necessary gene- rally now, it having been provided that " it shall not be necessary to prove by the attesting witness any in- strument to the validity of which attestation is not requi- site ; and such instrument may be proved by admission or otherwise, as if there had been no attesting witness thereto " {g). Instruments therefore not requiring attestation may Different ways be proved in any of the followins: wavs : ^^ ^^'^''^^ ^"^^ ■^ "^ o J instruments not requiring 1. By admission. attestation may be proved. 2. By calling the attesting witness if there is one. 3. By calling any person who actually saw the writing or signing, or the party who wrote it or signed it himself. 4. By calling a witness who has acquired a know- ledge of the writing in question by having seen the person write at some other time, even though only once, or by having had correspondence with such person which has been acted upon. 5. By comparison of the writing in question with any writing proved to the satisfaction of the judge to be genuine {h). As to the first of the above modes of proof, it may Notice to be mentioned that a notice to inspect and admit, i.e., a '°fP^f ^^'^ . , , ■*■ ' ' admit. notice to the other party or parties to the action to (/) Powell's Evidence, 357. ((/) 17 & 18 Vict. c. 125, s. 26. (Ji) See the notes in Day's Common Law Procedure Acts, prefacing sec 26 of 17 & 18 Vict. c. 125. 390 OF EVIDENCE IN CIVIL CASES. insjDect some document and admit its execution, is usually given just before the trial of most actions; the other party or parties can then inspect the docu- ment, and give an admission, and this saves further proof of execution, and in case of refusal or neglect to admit, the cost of proving the document has to he borne by the party so neglecting or refusing, whatever the result of the action may be, unless at the trial the judge certifies that the refusal to admit was reasonable ; and no costs of proving any document is allowed, unless such notice has been given, unless in the opinion ' of the judge the omission to give the notice has been a saving of expense (i). The object, there- fore, of giving this notice is to get the document admitted, or to throw the expense of its proof on the opponent or opponents {k). Meaning of an Any admission made under such a notice as is last being m!!!ie mentioned is made " saving all just exceptions " (Z), " saving all that is, that the party admits nothing more than the tiMis!""'' bare execution, so that, for instance, the admission by a person of his handwriting to a bill has been held not to preclude him from objecting to its admissibility in evidence on the ground of its being unstamped (m). As to proof by The last of the before-mentioned modes of proof comparison of ^^ handwriting, viz., by comparison with other writings by the same person proved or admitted to be genuine, was not formerly allowed («) ; the enactment render- ing it admissible is the Common Law Procedure Act, 1854 (o). Under it experts may be called, quite un- connected with the writer, to prove that by a com- parison and a careful observance of the different letters, (0 15 & 16 Vict. c. 76. s. 117. (A) As to the notice to produce usually given before going to trial, .see ante, p. 375. (I) 15 & 16 Vict. c. 76, s. 117. (ot) Vane v. Whitthifiton, 2 Dowl. (N.S.) 757. (n) Boe d. Mudd v. Suckennore, 5 A. & E. 703. (o) 17 & 18 Vict. c. 125, s. 27. OF EVIDENCE IN CIVIL CASES. 391 and the general style, with the proved or admitted to be genuine document or documents, they are of opinion that the handwriting in question is the work of the same person ; this kind of evidence, however, from its manifest uncertainty, has, in several late cases, been somewhat disfavoured. For the purpose of comparison the disputed writing must always be produced in court, so that the enactment does not apply to documents which are not produced, and of which it is sought to give secondary evidence (j:>). But where attestation is necessary to the validity of To prove an instrument, and actual proof is required of it, the li'J.tu "™'^°*^'^ attesting witness, or one of the attesting witnesses, if requiring living, must be called as a witness (q). The student is tht*^atteruna- reminded that some of the chief instruments requiring witness must attestation are, wills and codicils to wills (r), warrants '^''^ '^ ' of attorney and cognovits (s), powers of appoint- ment, and other instruments which the person giving the power for their execution has stated shall be attested (i). When an attesting witness is dead or abroad, or for Course when some other reason cannot be produced after due efforts ^'^ '^ 'l^t^ ^^' J- _ cannot be to bring him before the Court, evidence of his hand- found, writing must be given, and if there are several attest- ing witnesses who cannot be produced, generally it is sufficient to prove the handwriting of one of such witnesses (w). Although an attesting witness, on being called to What is prove the execution, states that he does not remember sufficient for ■•• ' an attesting witness to depose to. (p) See Day's Common Law Procedure Acts, notes to sec. 27 of 17 & 18 Vict. c. 125. (5) Whyman v. Garth, 8 Ex. 803. (r) 1 Vict. c. 26, s. 9. (s) 1 & 2 Vict, c^ 110, s. 9. (t) As to the execution of powers of appointment by will or deed, see 1 Vict. c. 26, s. 10 ; and 22 & 23 Vict c. 35, s. 12. ((«) Powell's Evidence, 358. 392 OF EVIDENCE IN CIVIL CASES. the actual fact of the execution, but yet deposes tliat seeing his signature to the attestation he is, therefore, sure he saw the party execute the deed or sign the document, this is quite sufficient proof of the execution of the instrument (x). Mode of For all ordinary matters prohate of a will, .or, if atrulaf ^'^ ^°^^' ^^ examined copy, or an exemplification, is the proper evidence (y). In the case, however, of an action involving the question of title to lands, or any descrip- tion of realty, it was formerly necessary to produce the original will (z), but it has been now provided that in any action, where necessary to establish a devise of or afi'ecting real estate, it shall be lawful for the party intending to establish in proof such devise to give to the opposite party, ten days at least before the trial, notice that he intends at the trial to give in evidence, as proof of the devise, probate of the said will, or administration with the will annexed, or a cojjy thereof, stamped with any seal of the Probate Court (a) ; and in every such case such probate or letters of ad- ministration, or copy thereof respectively, stamped as aforesaid, shall be sufficient evidence of the will and its validity, notwithstanding the same may not have been proved in solemn form, unless the party receiv- ing such notice shall, within four days after such receipt, give notice that he disputes the validity of such devise (b). This enactment was intended to prevent expense, it being also provided that where the original will is produced and proved, the Court or judge before whom the evidence is given shall direct which of the parties shall bear the costs thereof (c). (x) Per Bayley, J., Maugham v. Hubbard, 8 B. & C. 16; Powell's Evidence, 359. (y) Powell's Evidence, 328. (z) Ibid. 329. (a) Now the Probate Division of the High Court of Justice. (6) 20 & 21 Vict. c. 77, s. 64. (c) Sec. 65. OF EVIDENCE IN CIVIL CASES. 393 It has been decided that even in the absence of a counter-notice the probate is only sufficient, or prima facie evidence, and that, therefore, the party omitting to give such notice is not, on his part, precluded from giving evidence against the validity of the will {d). If the will has been proved in solemn form, it is pro- vided that the probate shall not only be sufficient, but conclusive proof (e). A person is not allowed to make evidence for him- A person is self, so that a person's own books are not evidence f°* '"Allowed n -, • ■ T -I • ^ ■ ^^ make tor mm, nor, indeed, is anything written, said, or evidence for done by a person having an interest, any evidence for [^'"'fa^Xlnce him, and this is called self-serving evidence, but many a man's books documents and facts, not in themselves evidence, may evidence for be admitted to refresh a witness's memory (/), for him. here he speaks to the fact from separate knowledge, only assisted by this extraneous matter ; thus, for instance, a witness may refer to his own books of account for this purpose, or to some entry in a diary or other book, and it is not actually necessary that the entry should have been made at the time, it is sufficient, if made shortly afterwards, so that he may be presumed then to have had accurate memory on the point {g). And where any memorandum or entry is produced in court to a witness, such memorandum or entry, or so much thereof as is used to refresh the witness's memory, must be shown to the other side, who are entitled to cross-examine on it i]i). Witnesses are required to depose to facts, and not There are to give forth mere matters of opinion, but, notwith- ^'y*"*^ '^^'''.*'^^^ ot CcisGs in standing this, there are many cases in which the which evidence opinion partakes in its nature of fact, and is, there- consisting of ^ ^ ' ' matters of (d) Barraclouqh v. Grecnhough, L. R. 2 Q. B. 612. (e) 20 & 21 Vict. c. 77, s. 62. (;') Powell's Evidence, .359-364. (V) Ibid. 36.3. (A) Ibid. 362. opmion is receivable. 394 OF EVIDENCE IN CIVIL CASES. fore, receivable in evidence. In Mr. Powell's valuable work iij)on Evidence (i) there are stated to be three classes of cases in which evidence consisting of matters of opinion is receivable, viz. : — 1. On questions of identification; e.(/., in the case of a long-absent claimant to property, or in the case of identification of handwriting. 2. To prove the apparent condition or state of a per- son or thing ; e.r/., in the case of an assault, to prove from a person's manner his intention, or to prove the state of some building or of some goods the subject of the action. 3. To prove matters strictly of a professional or scientific character by skilled or scientific witnesses ; e.(/ , in cases of terms having, in some business or amongst a particular class, a special and peculiar mean- ing, or in cases where words of a scientific or ex- ceptional character are used, or the comparison of handwriting with other handwriting, to tell its genuine- ness. And not only may a witness be called to prove the meaning of terms or matters in his opinion, but even dictionaries or other books may be referred to. The evidence, however, by experts of matters of opinion is always received with caution, and not a very great degree of weight attached to it {h). An aflidavit The forcgoiug remarks of course apply generally, not *"" ^'l i onlv to oral evidence, but also to afiidavits ; but on an interlocutory J .... . af)piication iutcrlocutory motion an affidavit may contain a state- rstatemeni" ^cnt foundcd Only on the deponent's belief (Z). founded on the deponent's . i ■ • • , i. i • • t,j.iief/ A document requiring a stamp cannot be given m (0 Page 102. \k) See Per Lord Campbell, 10 CI. & Fin. I'Jl ; and see also ante, p. 391. (/) Judicature Act, 1875, Order XXXVii. r. o. OF EVIDENCE IN CIVIL CASES. 395 evidence without one, except to prove some collateral Effect of the matter, e.g., fraud or illegality. There are some instru- "1?°^'^ '"^'"i^'^s ments which require to be stamped before execution, in.stiunient e.g., articles of clerkship to a solicitor ; but generally, stamp— time after execution, fourteen days are allowed in which to fo"" stamping, stamp an agreement, and two months in which to stamp an instrument under seal ; and an instrument ex- ecuted abroad may be stamped within two months after being received in the United Kingdom, If not stamped within these times, the unstamj)ed instrument can only be stamped on payment of the unpaid duty and a penalty of £10, and also, by way of further penalty, where the unpaid duty exceeds £10, of interest on such duty at the rate of 5 per cent, per annum from the day upon which the instrument was first executed up to the time when such interest is equal in amount to the unpaid duty (m). If an instrument is not stamped, or has been insuf- ficiently stamped, when tendered as evidence, the opponent may object to it on that ground ; but, strictly, it is the place of the officer whose duty it is to read the instrument to call the attention of the judge to the fact ; and even then, if the instrument is one which may legally be stamped after execution, it may, on pay- ment to such officer of the amount of the unpaid duty and the aforesaid penalty payable on stamping, and also on payment of a further sum of £1, be received in evidence, saving all just exceptions on other grounds {n). III. Cases of Privilege. — It has been pointed out, in in. Cases of discussing the subject of libel and slander, that there F'^'^^s*^- are certain circumstances in which a party is privileged to make assertions which in ordinary cases would be (m) 33 & 34 Vict. c. 97, s. 15. The Commissioners of Inland Revenue have, however, in special cases power to remit or reduce the above penalty on memorial to them. (ji) Sec. 1(3. 396 OF EVIDENCE IN CIVIL CASES. libellous or slanderous, but which are from such cir- cumstances prevented from being so (o). So, also, in matters of evidence, generally speaking a witness must answer all questions put to him relating to the subject- matter of the action, or in any way relevant to it ; but there are certain cases in which, from special circum- stances, either the witness is privileged from being obliged to disclose the matter, or some third person has a right to object to his doing so. There are two chief cases of privilege, viz. : 1. A witness 1. A wituess is not comj)ellable to disclose any matter to di'sdo^r*^ ^^^* ^^y ^^^^ ^^ criminate himself, or to expose him- facts that sclf to a penalty (j;) ; and may tend to criminate himself. 2. Professional communications between counsel, so- conmiutkr-"^^ licitors, or their clerks, and their clients, made in tions are confidence, cannot be disclosed without the client's prm ege . consent, nor can a client be compelled to disclose any communication made in confidence to his professional adviser (q). Where a witness claims privilege on the ground that his answer may tend to criminate him, it is submitted that it is for the court to decide whether it will have that eflect. As to the first case of privilege. — The question at once presents itself, who is to be the person to judge of whether or not a question asked has a tendency to criminate or to expose the witness to a penalty — the person asked the question, or the presiding judge ? The dieta upon the point are conflicting, some judges having held that, as the witness is obliged to pledge himself that he believes his answer will tend to this efi'ect, he is to be left to exercise his own discretion (r) ; and other judges having held that the witness has not this discretion, but must satisfy the Court that there is a reasonable probability (ci) See ante, p. 307. (p) Powell's Evidence, 108. (7) Ibid. 118. (r) See per Maule, J., and Jervi.s, C.J. 762. in Fisher v. Honalds, 12 C. B. OF EVIDENCE IN CIVIL CASES. 397 of the question having this effect (s). It is submitted that the latter rule is the correct one, for otherwise a witness might, acting on his own discretion, refuse to answer questions upon this ground without the slightest reason for so refusing. Where a question is asked a witness which will not A witness is actually tend to criminate him or expose him to any boundTo^^ penalty, but is yet one the answer to which may tend answer a to degrade him, if it is not actually material to the te"nding°to issue, but merely some point tending to affect his degrade him. character and thus reduce damages, or to have some other incidental effect, he is not bound to answer it (t). This first case of privilege has always been wider in equity than at law ; for in equity any question the an- swer to which might subject the witness to any pains or penalties, or to ecclesiastical censure, or a forfeiture of interest, has been held to be within the rule (u) ; and it is presumed that, as the rules of equity are now generally to prevail (w), this is now the case in all divisions of the High Court of Justice. Although there was formerly some doubt on the point A wife cannot at law (x), yet, in equity there was no doubt that the \l "^^f^."'^ rule of privilege upon this ground extended not only to a question a man himself, but also to his wife, so that a wife could ^^^^j °^^^ not be compelled to answer any question which might criminate expose her husband to such consequences (y). And, for the reason mentioned at the end of the last pre- ceding paragraph, it is submitted that there can now be no doubt upon the point in any division of the court. (s) Beg. V. Garbeti, 1 Den. 236 ; Eeg. v. Boyes, 1 B. & S. 311 ; and see per Parke, B., in Osborne v. London Docks Co., 10 Ex. 698. (0 Powell's Evidence, 117. (u) Ibid. {iv) Judicature Act, 1873, s. 25 (11). {x) See Powell's Evidence, 110. (y) Carticright v. Greeyi, 8 Ves. 41U. 398 OF ES'IDENCE IN CIVIL CASES. There is no A witiiess caimot object to answer any question upon Sain^haf ^^^ ^^^^ gi'ound that his answer might expose him to answer might a civil action (z). expose witness to a civil action. A witness may of course waive his privilege and wih-e"hTs ""^ answer at his peril, for he is the party concerned, and if he chooses to waive the privilege that the law allows him, there is nothing to prevent him doing so (a). privilege and answer a question tending to criminate him it" he chooses. In the case of professional communica- tions, the privilege is the client's. In cases of privilege upon this ground, the relationship of solicitor and client need not be existing at the time. There are several cases in which it has been expressly provided by different statutes that a witness cannot refuse to answer questions to which they refer on the around that the answers would criminate him, but that such answers shall not be used against him in a criminal proceeding arising out of the same transaction (h). As to the second chief ground of privilege, this is of a very different nature, for in the first case the privi- lege is always the witness's own, which he may at his option waive, but in this case, where counsel, solicitors, or their clerks are witnesses, the privilege is not theirs, but that of their clients, and it is not in such a case the witness who may waive the privilege, but the client ; and if the client does not so waive it, then the witness is not allowed to make any such disclosure (c). And for this case of privilege to exist, it is not necessary that the position of solicitor and client should be actually sub- sisting at the time, it is quite sufficient if it has existed at some past time, and the communication in question took place whilst that relationship existed. This rule of privilege is founded upon principles of public policy, for if some such rule did not exist, no man would know what he was safe in disclosing to his professional ad- viser (d). (z) Powell's Evidence, 111. (a) Ibid. (6) Ibid. (c) Wilson V. Bastall, 4 T. R. 759. (d) See, per Lord Brougham, Bolton v. Corporation of Liverpool, 1 M. & K. 94. i OF EVIDENCE IN CIVIL CASES. 399 The student will observe that part of the rule in this a client also class of cases of privilege is also that a client cannot be comp°eiied to compelled to disclose any communication made in con- disclose fidence to his professional adviser (e). This seems to communica- follow naturally, upon the same reasoning, and here, of tions made course, the privilege is that of the witness. This privi- professional lege of the client can always be waived by him, and -idviser. a witness who has objected to answer on the ground of ^.^^ ^j^^ °y, his client's privilege must then answer it. waive the ■"■ ° privilege. It seems that a solicitor called upon to produce any it is for a document of his client's, must exercise his own dis- soi'^J^oi" *« . . . decide cretion as to producing it, and that it is not for the whether a judge to decide whether or not it ought to be pro- J^d'ln ' duced (/). to produce is privileged. A communication made by a client to his solicitor, a communica- not for the purpose of obtaining advice, but for the ^^soiic^'or purpose of obtaining information upon some matter of but not for fact, or for some purpose other than in the ordinary of^obt"'ini'n^ position of solicitor and client, is not within this case advice, is not n . .-, / V within the of privilege (^7). privilege. Although some document originally in a solicitor's A document possession would, had it remained in his possession, TsoHcifor's'^ have been privileged, yet, if he has parted with it to h^Q^s is not some other person, although he should not have done jf he parts so, yet the privilege is gone, and it may be given in with it. evidence by the party into whose possession it has come (h). This case of privilege does not extend beyond the No privilege persons named (i) ; thus, medical men (j) and clergy- medical Ten and clergymen. (e) Ante, p. 396. (/) Vol mt V. Soyer, 13 C. B. 231. ((/) See Powell's Evidence, 126, and case there referred to. (/i) See Cleave v. Jones, 21 L. J. (Ex.) 106. (i) See ante, p. 396. {j) Lcc V. Hmnmcrton, 12 W. R. 975. cases ot privilege. 400 OF EVIDENCE IN CIVIL CASES. men (Jc) are not within the rule. Some doubts have, however, been thrown out as to the latter (I). Oonimunica- Letters between a country solicitor and his town '^rrudice "'^*^ '* ^S^^^ ^^'® privileged from production (in) ; so also are all communications in or with reference to litigation which are expressed to be " without prejudice." Some other In addition to the foregoing may be mentioned two other cases of privilege, which however, particularly the first two of them, are of much less importance in civil cases than the two chief cases that have been given. The first is, that a witness cannot be asked, and will not be allowed to state, any facts, or to produce any documents, the disclosure of which may be pre- judicial to any public interest (w), e.g., in the case of some high documents of state. The second is, that evidence may sometimes be excluded in a civil case on the ground of indecency (o) : but the indecency must be something of a very exceptional character, as tending to outrage all conventional propriety, or involving some matter particularly afi'ecting domestic morality. It may, however, be safely stated that this rule is of such a very fine nature as to be practically of very little importance, or, indeed, of no importance at all. IV. Misceiia- lY. QJ' some miscellaneous points on the law of evi- neou.s points on ■, the law of dence. evidence. The onus In any action the 07ius prohandi, or burden of proof, {he"on '° is on tlie person who asserts the affirmative side of the asserting the question (p), that is to say, that any person who asserts an 'actio'n.'^ '° & fact is bound to provo that fact to succeed in his case, (/i) Broad v. Pitt, M. & M. 233. (0 See Powell's KviJence, 129, 130. Im) Catt V. Tourle, 19 W. R. 56. (n) Powell's Evidence, 131. (o) Ibid. 136. (p) See Brown's Law Diet. 260, tit. "Onus proliMnli." OF EVIDENCE IN CIVIL CASES, 401 and it is not necessary for the person alleging the negative to prove it in the first instance, and it is there- fore at a trial generally for the person on whom lies the affirmative to begin. In all cases, by the affirma- tive is not merely meant the affirmative in point of form, but the affirmative in substance, and the true test for determining on whom the affirmative lies is this : If no evidence was offered who would be unsuc- cessful in the action ? It is for the party who would be unsuccessful in such event to commence (q). Instances without number to illustrate the foregoing An instance remarks can be easily given. Thus, take an ordinary ^' *'"'^' action for goods sold and delivered : here, if the de- fendant in his statement of defence denies the selling and delivery, or otherwise puts the question in issue, did the plaintiff offer no evidence, the verdict would be for the defendant, so here the onus probandi lies on the plaintiff; but if the defendant admits the selling and delivery of the goods, but sets up some counter- claim against the plaintiff in the nature of set-off, here, did he (the defendant) give no evidence, the verdict would be for the plaintiff, so here the onus prohandi lies on the defendant. But there are numerous cases in which, in conse- But sometimes quence of presumptions of the law, the onus prohandi tidn*l^f thT lies on the party on whom it would not lie but for such law puts the 1 • rni • j_- T onus prohandi presumption, ihus, m an action on any ordinary, ^y^e/e it simple contract, it is for the plaintiff to prove that the would not essentials of a simple contract exist, unless the con- tract is admitted by the defendant (r) ; but as bills of exchange and promissory notes are presumed to have been given for a valuable consideration until the con- trary is shown (s), here it lies on the party who denies ((/) Amos V. Hughes, 1 M. & Rob. 464. (r) As to what are the essentials of a simple contract, see ante, p. 27. (s) See ante, p. 136. 2 D 402 OF EVIDENCE IN CIVIL CASES. As to the case of a voluutary settleineut. A child born during wedlock is presumed to be legitimate until the contrary is shown. the consideration to prove his denial. It is, however, sufficient for a defendant to prove something in the nature of fraud in the prior dealings with the instru- ment ; and if he does this, the plaintiff is then bound to show how he became possessed of it (t). Again, where a person takes an interest under a voluntary settlement, or any other voluntary instru- ment, and proceedings are instituted to set aside or otherwise question his interest thereunder, the burden of proof lies on the defendant to prove that such voluntary instrument was fairly and honestly made, without any fraud or pressure uj)on his part, and if he stood in a fiduciary capacity toward the person making such voluntary instrument, he must, in addi- tion, show how the intention to make it was produced in the other person (u). A child born during wedlock is presumed to be legitimate, and the burden of proof lies on the party who denies his legitimacy (x). There are also many other cases in which the presumption of the law puts the onus prohandi where it would not be but for that presumption, but to go into them is beyond the scope of the present work (y). It has already been stated that the person on whom the affirmative lies has the right to begin (z), but it has long been an established rule at law that in actions of slander, libel, and other actions for personal injuries, or indeed in any action where the plaintiff seeks to recover actual damages of an unascertained amount, he is entitled to begin, although the affirmative of the issue may in point of form be with the defendant. (0 Smith v. Brainc, 16 Q. B. 244. (m) Per Lord Eldon, Gibson v. ./ei/es, 6 Vcs. 2GG ; Floghton v. Hojhton, 15 Beav. 299; Cooke v. Lamotte, 15 Beav. 234. (x) Banbiirtj Peerage Case, 1 S. & S. 155. («/) See some in Powell's Evidence, 291, et seq. (^) Ante, \>\k 400, 401. OF EVIDENCE IN CIVIL CASES. 403^ Leading questions cannot be put to a witness by Leading the iDerson on whose behalf he is called (a). By a a^fg n^t"'^ " leading question " is meant some question put or allowed in an framed in such a form as to suggest to the witness the I'a'^chief "^'"^ answer that is desired (b). Thus, if at a trial it is desired to elicit from a witness the effect of a certain conversation, the proper way to put the question is to simply ask the witness what then took place, or to that effect, and it is not allowable to state in the question the conversation and ask the witness if it did not take place ; for this would be a leading question (c). The reason of the rule prohibiting leading questions must be apparent to all ; and it has been well stated in Mr. Powell's work on Evidence (d) to be " because the object of calling witnesses and examining them viva voce in open court is that the judge and jury may hear them tell their own unvarnished tale of the cir- cumstances which they are called to attest." In cross-examination of a witness, however, or even Aliter in cross- in examination in chief of an adverse witness, leading examination or .11 examinatioa questions may be asked, for the reason of such question in chief of an not beinfif admitted in the evidence in chief is because ''^'^.y^^"^'^ o _ _ _ . witness. ^ the witness is presumed to be desirous of assisting the person for whom he is called to give evidence, but in cross-examination, or in the examination in chief of an adverse witness, there can be no such presump- tion, and the reason for the rule failing, it docs not apply. If when an action is called on for trial the plain- Position of a tiff appears, and the defendant does not, the plain- 'jgf'Q|i;fnrif tiff does not necessarily have judgment, but he may his opponent prove his claim so far as the burden of proof lies on arthTti^air^^'' (a) Powell's Evidence, 449. (6) Brown's Law Diet. 209. (c) See an instance of a leading question in a criminal case in Powell's Evidence, 450. (d) Page 449. 2 D 2 404 OF EVIDENCE IN CIVIL CASES. him (e) ; and if when an action is called on for trial the defendant appears, and the plaintiff does not appear, the defendant, if he has no counter-claim, is entitled to judgment dismissing the action, but if he has a coun- ter-claim, then he may prove such claim so far as the burden of proof lies on him (/) ; but 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 he may see fit, upon an application made within six days after the trial (^). Admissions may do away with the necessity of strict evidence. Effect in one action of an admission made in another action. Admissions between the parties to an action may frequently do away with the necessity that would otherwise exist for strict evidence. The term " admis- sions " is here used to denote the mutual concessions which the parties to an action make in the course of their pleadings, and the effect of which is to narrow the area of facts or allegations requiring to be proved by evidence (h). The most usual case of admissions that occurs in ordinary actions is the admission of documents under a notice to inspect and admit, which has already been noticed («') ; but there may be many other cases of admissions, e.g., admissions of facts not only in any pleading, but in any letter of one of the parties, or of his solicitor or agent, unless such letter has been expressed to have been written " without pre- judice." It is therefore usual and proper, in any letter written with a view to the compromise of an action, to state that it is written " without prejudice ;^' but when any letter has been written with such a statement then all subsequent letters following thereon are within the rule although not so expressed (k). If an admission is made in some pleading in one (e) Judicature Act, 1875, Order xxxvi. r. 18. (/) Ibid., rule 19. Qj) Ibid., rule 20. (A) Brown's Law Diet. 15. (0 Ante, jjp. 389, 390. {/:) lluyldon v. Jloghton, 15 Beav. 278. OF EVIDENCE IN CIVIL CASES. 405 action, that pleading can bo given in evidence in another action as a cogent admission on his part, especially if it has been put in on oath, as would be the case in an answer to interrogatories (Z), An admission need not necessarily be in writing, but Admissions it may be by parol; e.g. in the course of conversation, p!fj.oi'^oi.''b and acts, conduct, manner, demeanour, and acquies- conduct, &c. cence may operate as admissions if they can be so fairly construed (m). Counsel may at a trial bind their clients by any Effect of admission they in their discretion see fit to make (n). |!ounsei°'^^ ^^ An agent can only bind his principal by admissions agents, «&c. when the making of such admissions comes within the scope of his ordinary and usual authority (o) ; and a wife can only bind her husband by her admissions so far as she can be said to have his authority, express or implied, to do so (p), so that even in an action against a husband for his wife's tort, her admission of it cannot be given in evidence against him {(j). An infant cannot make admissions, nor generally can his guardian or next friend do so for him (r). Admissions where they exist are as good as any primary evidence. Interrogatories are frequently used as a means to intenoga- obtain admissions from the opponent in an action (s). ^°^'"^'^' (0 Fleet V. Perrijis, L. R. 1 Q. B. 536. (m) Powell's Evidence, 247. («) See Swinfen v. Swinfen, 18 C. B. 485. (o) This is simply on the ordinary principle of the power of an agent to bind his principal, as to which, see ante, pp. 101, 102. (p) This, again, is on the ordinary principle of the power of the wife to bind her husband, as to which, see ante, pp. 177, 178. (q) Dean v. White, 7 T. R. 112. \r) Powell's Evidence, 262. (s) It is not meant by this that the object of interrogatories is to obtain admissions, for this is not so, the rule as to their object being correctly 40G OF EVIDENCE IN CIVIL CASES. Interrogatories may be defined as a set of questions administered by either a plaintiff or defendant to bis oj^ponent in the course of an action before trial, wbich be (the opponent) is required to answer upon oatb. It was always the practice in Chancery to administer in- terrogatories, and nearly anything was allowed to be asked in them, and by the Common Law Procedure Act, 1854 (t), interrogatories were also allowed to be administered at common law by leave of a judge. By the Eules to the Judicature Act, 1875 {u), it is now provided that " the plaintiff may at the time of deliver- ing bis statement of claim, or at any subsequent time not later than the close of the pleadings, and a defen- dant may at the time of delivering his defence, or at any subsequent time not later than the close of the pleadings, without any order for that purpose, and either party may at any time by leave of the court or a judge deliver interrogatories in writing for the exam- ination of the opposite party or parties, or any one or more of such parties, with a note at the foot thereof stating which of such interrogatories each of such per- sons is required to answer; provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose." It may, however, be noticed that it seems the practice of the Court to discourage the practice of delivering in- terrogatories unless actually necessary. Eflcct of Payment into court also operates as an admission by imynicut int., ^^^^ defendant to a certain extent. Formerly a defen- court in an '' action. stated by Mr. Griffith, in his notes to Order xxxi. of the Judicature Act, 1875 (see Griffith's Judicature Acts, 235), as follows: "The object of intei'- rogatories is to afford to the interrogator information upon matters jicculiarly within the knowledge of the party interrogated which may assist the interrogator in making his case; not to try the cause on admis- sions of the party interrogated, or to break down the case set up by him." But, although this is so, yet, incidentally, of course, admissions are obtained from the party interrogated, and, practically, this is often the chief object of the interrogatories. (/) 17 & 18 Vict. c. 125, s. 51. ("-) Order XXXI. i-. 1. OF EVIDENCE IN CIVIL CASES. 407 dant could generally only pay money into court when a fixed liquidated sum was sued for (x) ; but now it is provided that in any action to recover a debt or damages the defendant may at any time after service of the writ, and before or at the time of delivering his defence, or by leave of the Court or a judge at any later time, pay into court a sum of money by way of satis- faction or amends (y). As under the old system of pleading the plaintiff might declare simply generally, as for goods sold and delivered, without stating any particular date, or might declare on some special contract, there was a difference in the eifect of payment into court. Where the decla- ration was simply general (z) the effect was only to admit that the plaintiff had a cause of action to the amount paid in upon some contract, so that it was still necessary for the plaintiff to prove the actual contract, but in the other case, i. e., where the plaintiff declared on some -special contract, the payment into court admitted that very contract and a liability on it to that extent (a). Under the new practice, however, where a statement of claim has been delivered, this dis- tinction it is presumed cannot exist any longer, as all material facts, dates, &c., are stated in it, which puts the plaintiff's statement of claim in the same position always as a former declaration on a special contract, and payment into court now in such a case will operate as an admission on the contract specified, and of a liability thereon to the extent of the amount paid in. So also if the payment into court is made before the statement of claim has been delivered, if in the indorse- ment on the writ the particular contract is mentioned, the payment in will have the same effect, but if the in- {x) See however as to payment into court in cases of libel, ante pp. 311, 312. ' (y) Judicature Act, 1875, Order xxx. r. 1. («) That is to say, in cases of the ordinary indcbitatur counts. (a) See Arch. Nisi Prius, 119 ; Chit. Arch. 1371. 408 OF EVIDENCE IN CIVIL CASES. dorsement on the writ is simply general in its nature, then the payment into court will only admit a liability to that extent on some contract, leaving it for the plaintiff to prove the contract as formerly on a general declaration. Auaainission " Evcry allegation of fact in any pleading in an may occur by actiou, not being a petition or summons, if not denied not denving . .. n ■, ■ t i- i i i j. i au aliesation speciiically 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 " (b). contained in any pleading Former distinction in the mode of taking evidence at common law and in Chancery. Provisions of There has always been a great distinction be- tAveen the mode of taking evidence at common law and in Chancery. At common law it was taken viva voce in court on the hearing of the cause, but in Chancery it was generally by affidavit (c). Now, however, under the Judicature Act, 1875, the iudkiiture Order xxxvH. r. 1, in all divisions of the court, in Act i87o, ^2^g absence of an agreement between the parties to Order xxxvii. rr- i • i • r. 1. take the evidence by affidavit, the witnesses at the trial of any action, or at any assessment of damages, are to be examined viva voce in open court, but the court or a judge may order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read. It is also provided that upon any motion, petition, or summons evidence may be given by affidavit ; but the court or a judge may, on the application of either party, order the attendance, for cross-examination, of the person making any such affidavit (d). (/;) Judicature Act, 1875, Order XIX. r. 17. (c) There might, however, have been a viva voce examination by consent or direction of the court or a judge. See 15 & 16 Vict. c. 86; Order v., Feb. 1861, rules 3 and 10; Daniel's Chancery Practice, 799. ((/) Order xxxvii. r. 2. As to the i)ractice when the parties consent to take the evidence by allidavit, see Order xxxvill. ' 1 OF EVIDENCE IN CIVIL CASES. 409 The attendance of a witness at a trial to give evi- The attond- dence is procured by subpoena, which is a writ by ^^jtne^s at a which the j)Grson is commanded to appear at a certain trial is place or time (e). "Where the oral testimony only of a gyWaa, ^ witness is required, the subpoena issued is called a subpoena ad testificandum, where he is required to pro- duce any documents it is called a subpoena duces tecum. A witness must be paid with his subpoena his reasonable expenses, and if a material witness, having been so served, does not duly attend, he is liable to an action (/), or to be attached for contempt of court in not obeying the subpoena. The evidence of a witness resident in India, or any How evidence other of her Majesty's dominions abroad, is obtained p*""^"'"'^'^ w'^*^" o '' ' a witness by applying to the court here for a mandamus to the resides abroad tribunals there to examine the witness, and such colonies °"^^" examination, upon being returned, is allowed and read, and deemed good and competent evidence {g). If in an action here a witness resides in Ireland or Or in Ireland Scotland, a subpoena cannot be issued against him as °^" ''''^°'^'''"'^' of course, but the court or a judge has power, on ap- plication made for that purpose, to allow a subpoena to issue (/i). In cases of a witness being abroad not in her Or, where Majesty's dominions, the only mode of getting his -^'j™'!'!' ^ot iu ., .^1 L 1 1 -\ • 1 ■ ■ one of our evidence, ii he cannot attend, is by issuing a com- colonies. mission for his examination, by which a certain person or certain persons are delegated to take his evidence (e). If on such commission the witness refuses or neglects to attend to be examined, the com- (e) See Brown's Law Diet. 345. (/) As to the damages recoverable in such a case, see ante, pp. 370 371 (7) See 13 Geo. 3, c. 63, s. 44, and 1 Wm. 4, c. 22. ' (A) 17 & 18 Vict. c. 34, s. 1. (() See Powell's Evidence, 441. 410 OF EVIDENCE IN CIVIL CASES. missioner or commissioners may, after written notice requiring his attendance, apply to the local courts there for an order to compel his attendance (k). Where a witness cannot atteml at the trial, his evidence may he taken hetbre an examiner. When a dejwsitiou by a deceased witness in a former trial may be read. It is for the judge to decide on the ailmissibility of evidence ; but it is for the jury to If a witness is too ill to attend at the trial, or, from age or other infirmity, is unable to do so without great danger to himself, or is about to leave the country, so that his evidence may possibly be lost, the party desiring his evidence may apply to the court or a judge for his examination, either before one of the official examiners of the court or some special ex- aminer to be appointed (Z), The court has, indeed, a very wide power as to depositions now, the 4th rule of Order xxxvn. of the Judicature Act, 1875, being as follows : " The court or a judge may, in any cause or matter where it shall appear necessary for the pur- poses of justice, make any order for the examination upon oath, before any officer of the court, or any other person or persons, and at any place, of any witness or person, and may order any deposition so taken to be filed in the court, and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the court or judge may direct." In a matter between the same parties on the same issue, as on a former trial, depositions of a witness at such former trial may be used if the witness be dead or cannot be found, or has been subpoenaed and fallen ill on the way (m). The reason why the trial must be between the same parties, is that a person who was not a party to the former action has had no opportunity of cross-examining the witness (w). We have seen in the foregoing pages that there are (/;) 6 & 7 Vict. c. 82, s. 5. (/) .Judicature Act, 1875, Order XXXVii. rr. 1 and 4. (in) I'owell's Evidence, 217. («) Ibid. OP EVIDENCE IN CIVIL CASES. 411 many kinds of proof that may be tendered that cannot decMi; on the or ou»ht not to be received. It is for the presiding credence to be . .... . given to it. judge to determine as to the admissibility of joarticuhir evidence. There is also another and a still more im- portant point, viz., as to the credence to be given to a witness, for very often evidence of a most con- flicting character is given at a trial. On the point of credence the jury are the judges, for they sit to try the facts of the case, and in exercising their judgment they should regard the whole circumstances con- nected with a witness, they should look to his de- meanour and see whether he appears to be giving his evidence in an honest, straightforward, and true manner, and whether ho appears to be an over-zealous witness, unduly anxious to befriend the party for whom he is a witness, in which case he must be regarded with, at any rate, some suspicion. They should look, also, in cases of conflicting evidence, not only to outward circumstances, but to inner matters, and consider any interest or possible motive that the witness may have that may tend to weaken his evidence, and look even to his general character and past doings as some criterion on the all-important question of truth. 412 APPENDIX A., REFERRED TO AT PaGE 120. Form of a Bill .of Exchange. Q Stamp varyiug montlis after dato -^Jd^^ demand, or at sight, or according to months after sight, or"^ some other period] pay to my order [or pay to the order o^E. F., or pay to E. F. or bearer] Five hundred pounds for vanio received. amount. A. B. To Mr. C. D., of, &c. Form of a Promissory Note. Stamp varying months after date [or on demand, or at sight, or according to months after sight, or at some other period] I promise to pay amount. ^^ ^ -^ ^^_ ^^.^^^. j-^^ ^^ ^ -^ ^^^ bearer] Five hundred pounds for value received. A. B. 413 APPENDIX B., REFERRED TO AT PaGE 141. 39 & 40 Vict. o. 81. An Act for amending the Law relating to Crossed Cheques. [15th August, 1876.] Be it enacted by the Queen's most Excellent Majesty, by and with tlie advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assem- bled, and by the authority of the same, as follows : 1. This Act may be cited as The Crossed Cheques Act, Short title. 1876. 2. The Acts described in the schedule to this Act are Kepeal of Acts hereby repealed, but this repeal shall not affect any right, "^ schedule. interest, or liability acquired or accrued before the passing of this Act. 3. In this Act — ■ "Cheque" means a draft or order on a banker payable Interpretation. to bearer or to order on demand, and includes a warrant for payment of dividend on stock sent by post by the Governor and Company of the Bank of England or of Ireland, under the authority of any Act of Parliament for the time being in force : " Banker " includes persons or a corporation or company acting as bankers. 4. Where a cheque bears across its face an addition of the General and words " and company," or any abbreviation thereof, between ^P'^';'''^^ cross- two parallel transverse lines, or of two parallel transverse lines simply, and either with or without the words " not negotiable," that addition shall be deemed a crossing, and the cheque shall be deemed to be crossed generally. 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 shall be deemed a crossing, and 411: APPENDIX B. the cheque shall he deemed to be crossed specially, and to bo crossed to that hanker. Crossing after 5. Where a cheque is uncrossed, a lawful holder may '**"^- cross it generally or specially. Where a cheque is crossed generally, a lawful holder may cross it specially. ,_ I W' here a cheque is crossed generally or specially, a lawful ^^ ' holder may add the words " not negotiable." uir uUit^:^ Where a cheque is crossed specially, the banker to whom '"1. l^ y^fJ^* oj. it is crossed may again cross it specially to another banker, ^J^. frj-' ff' ■''" ■ liis agent for collection. Crossing 6. A crossing authorized by this Act shall be deemed a material jinit material part of the cheque, and it shall not be lawful for c itqut. ^^^ person to obliterate, or, except as authorized by this Act, to add to or alter the crossing. Payment to 7. Where a cheque is crossed generally, the banker on banker only, ^yiiom it is drawn shall not pay it otherwise than to a banker. Where a cheque is crossed specially, the banker on whom it is drawn shall not pay it otherwise than to the banker to whom it is crossed, or to his agent for collection. Cheque 8. Where a cheque is crossed specially to more than one crossed spe- banker, except when crossed to an agent for the purpose of than^once*' Collection, the banker on whom it is drawn shall refuse not to be paid, payment thereof. Protection of 9. Where the banker on whom a crossed cheque is draw^n banker and j^^s in good faith and without negligence paid such cheque, cheque ci^c^sed if crossed generally to a banker, and if crossed specially to specially. the banker to whom it is crossed, or his agent for collection being a banker, the banker paying the cheque and (in case such cheque has come to the hands of the payee) the drawer ; , thereof shall respectively bo entitled to the same rights, and be placed in the same position in all respects, as they would respectively have been entitled to and have been placed in if the amount of the cheque had been paid to and received by the true owner thereof. Banker pay- 10. Any banker paying a cheque crossed generally other- ing cheque ^jg^ ^j^^n to a banker, or a cheque crossed specially other- proSons of wise than to the banker to whom the same shall bo crossed, Act to be or bis agent for collection being a banker, shall be liable to iu'/owm-r'^''' the true owner of the clieque for any loss he may sustain owing to the cheque having been so paid. APPENDIX B. 415 11. Where a cheque is presented for payment, which does Relief of not at the time of presentation appear to be crossed, or to \° J^^. v°i^ have had a crossing which has been obliterated, or to have in some cases. been added to or altered otherwise than as authorized by this Act, a 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 other- wise than as authorized by this Act, and of payment being made otherwise than to a banker or the banker to whom the cheque is or was crossed, or to his agent for collection being a banker (as the case may be). 12. A person taking a cheque crossed generally or spe- Title of holder cially, bearing in either case the words " not negotiable," cheque '' ° „ . . , crossed spe- shall not have and shall not be capable of giving a better cially. title to the cheque than that which the person from whom ^y^^-w^/<-tc< v dn^Jf^^ he took it had. ^dii fitx^k jT^./'.^.y But a banker who has in good faith and without negli- gence received payment for a customer of a cheque crossed generally or specially to himself shall not, in case the title to the cheque proves defective, incur any liability to the true owner of the cheque by reason only of having received such payment. SCHEDULE. Acts kepealed. 19 & 20 Vict. c. 25 . . An Act to amend the law relating to drafts on bankers. 21 & 22 Vict. c. 79 . . An Act to amend the law relating to cheques or drafts on bankers. [Index. GENERAL INDEX. A. Abatement of a nuisance, 259, 260 Acceptance and receipt of goods within ITth section of Statute of Frauds, 75—77 Accident, A person not liable for accidental injury if free from fault, 279 Liability for fire caused by, 337 What will be an inevitable accident, 340 Accidental Injury, A person is not liable for, if he is free from fault, 279 Accord and Satisfaction, Definition of, and generally as to, 199, 200 The value of the satisfaction cannot be inquired into, 200 Provision of Judicature Act, 1873, as to, 201 Acknowledgment, To take a case out of the Statutes of Limitation, 46, 205 Must always be in writing, 206 Effect of, by one of several, 206 Must have been made before action, 207 Actual Partner : See Partnership. Admissibility of Evidence : See Evidence. It is for judge to decide as to, 410, 411 Admissions, Meaning of " saving all just exceptions," 390 May do away with necessity of strict evidence, 404 Effect of, if made in some other action, 404, 405 May occur by parol or even by conduct, 405 2 E 418 GENERAL INDEX. Admissions — coiitimted. Effect of, by counsel, agents, &c., 405 Infants cannot make, 405 Answers to interrogatories may pi'oduce, 405, 406 Payment into Court may operate as an admission, 406, 407 May occur by omitting to deny any allegation contained in any pleading, 408 Adultery rnocEEDiNGS, Parties to, are only competent, not compellable, witnesses, 387 Adverse "Witness May be contradicted, 385, 386 Agent : See Peincipal and Agent. Aliens, W bo are, 186 Tbeir position prior to and since the Naturalization Act, 1870.. 187, 188 Alterations in Instrument, Effect of, after execution, 129, 130, 212 AaiBIGUITT, Difference between it being patent and latent, 23, 24 If an instrument is so ambiguous as to make it doubtful if a bill or note, it is in the election of the bolder to treat it as either, 134 Anbials, As to property in, 269, 273 Injuries done by and to, 271 — 274 Annuity, Definition of, 46 ArOLOGY, In the case of libel, 311 Apportionment op Eent, Provisions as to, 67, 68 Apprentice, A master is bound to provide medical attendance for, though not for an ordinary servant, 163 Is liable to be reasonably chastised by master, 291 Appropriation of Payments, The rule as to, 193 Arrest, Power of pawnbrokers to, 297 Under the Debtors Act, 1869 .. 299, 300 GENERAL INDEX. 419 Assault and Battery, Definitions of assault and of battery, 284, 285 What will constitute an assault, 285, 286 Instances of assaults, 286, 287 A mere passive act cannot amount to, 287 Distinction between, 287 May amount to mayhem, 287, 288 An action may be brought here for, though committed abroad, 288 May be justifiable in defence of person or property, 288—290 Or on account of a person's peculiar position, 290, 291 May be committed indirectly, as by the throwing of a squib, 291 May be committed irrespective of malice, 291 Eemedies for, 242, 243, 292 Damages recoverable in respect of, 370 Assignment op Leases Must be in writing and by deed, 51 Assurance, Definition of, 147 Three things impliedly warranted in a marine policy, 147 Contracts of fire and marine assurance are contracts of indemnity, 148 But contracts of life assurance are not, 148 A person to insure must have an insurable interest, but a person may insure his own life, or a wife her husband's, 149 There must be no concealment in efiecting a policy, 149 Effect of suicide on a policy, 150 Life and marine policies are by statutes assignable, 150 Damages recoverable in actions on fire and life policies, 368 Atheists May now give evidence under provisions of 32 & 33 Vict, c. 68.. 384 Attesting Witness, When it is necessary to call, 388, 389, 391 Course wlien he is dead or cannot be found, 391 What is sufficient for him to depose to, 391, 392 Average, General and particular, 144 2 E 2 420 GENERAL INDEX. B. Bailiff Has a claim for liis foes against a solicitor employing him, 157 Bailments, Generally, 85—99 Lord Holt's division of, 85, 86 The cases of Coggs v. Bernard and Wilson v. Brett, 86, 87 Distinction between a pawn, a lien, and a mortgage, 88, 89 As to pawnbrokers, 89, 90 Carriers, 91 — 96 Innkeepers, 97 — 99 Another division of, 99 Banker and Cdstomer : See Cheque. Eelation between, 136 Statutory provisions as to bankers' books in evidence, 374, note (y) Bankruptcy, As an excuse for the non-performance of contracts, 212 —214 Barristers Cannot recover their fees, 154 Battery : See Assault and Battery, Beadle Is justified in forcibly removing a person disturbing a con- gregation, 291 Beyond Seas, Meaning of, 204 Bills of Exchange, Advantages derived from, and from promissory notes, 118—120 Form of, and of promissory note : See Appkndix A. Two classes of persons liable on bills and notes, 120, 121 Acceptance for honour or supra protest, 121 Accommodation acceptance, 121 Acceptance of, may be cither general or qualified, 122 Position of iudorsers of bills or notes, 122 Effect of an indorsement " sans recours,'" 128 Effect of accepting, making, or indorsing ^' per proc.'' 123 Liability of an executor or administrator making, accept- ing, or indorsing, 123 GENERAL INDEX. 421 Bills of Exchange — continued. How bills and notes may be made payable, 124 Days of grace, 124 Statute of Limitations runs from date of instrument pay- able on demand, 124 QucBre, bowever, from wben it runs in bills or notes payable at sight or on presentation, 125 Meaning of the term " usance," 125 As to presentment and notice of dishonour generally, 125—129 What is meant by a qualified acceptance, 126 Exception to the rule requiring notice of dishonour, 129 Effect of alterations after execution, 129 Difference in transfer of bills or notes before and after becoming due, particularly as to a stolen or lost bill, 130, 131 A pre-existing debt is a sufficient consideration for the handing over of a negotiable instrument, 131 Forgery of a bill or note cannot confer any title, 132 How liability on bills and notes may be discharged, 132 When noting and protesting necessary, 133 Difference between an inland and a foreign bill, 133 Eeceipt on back of a bill or note requires no stamp, 133 Bills and notes for less than 20s. prohibited, 133 If it is doubtful whether an instrument is a bill or note, it is in the election of the holder to treat it as either, 134 Effect of loss of a bill or note, 134 Bills and notes carry interest, 135 Procedure on bills and notes under 18 & 19 Vict. c. 67 .. 135 Summary of differences in bills and notes from other simple contracts, 135, 136 Infants not liable on, 171 Bills or notes given for gaming debts are not absolutely void, 234 Bill of Lading, What it is, 145 Boarding-house Keepers, Liability of, 99 Books, &c., A person's own, are not evidence, but he may refresh his memory by reference to them, 393 Bottomky Bond, Definition of, &c., 144, 145 •122 general index. Breach of Contract, Consequences flowing from, 21 Breach of Promise of Marriage, Damages recoverable for, 369, 370 In actions for, parties are only competent, not compellable, witnesses, 387 Brokers, Difference between, and factors, 106 Burden of Proof Is on party seeking to prove affirmative in an action, 400, 401 But presumption of law may put it where it would not otherwise be, 401 C. Captain of a Ship May imprison or reasonably chastise sailors, 291 Carrier, Definition of a, 91 His liability at Common Law, 92 Provisions of the Carriers Act, 92, 93 Provisions of the Eailway and Canal Traffic Act, 94 Provisions of the Kail way Eegulation Act, 95 His duty, 95 As to carriage by a railway comi^auy over their own and another line, 95 Who is to sue the carrier, 95 As to carrying dangerous goods, 95 As to railway passengers' personal luggage, 96 Liability for injuries to passengers, 96 Liability of, by water, 146 Damages recoverable against, 367 Cases, For index of, see p. ix. Cattle, Obligation as to fencing out, 253 Certified Conveyancers May recover their fees, 154 Champerty, Definition of, 280 Charities, Liability for contract made on behalf of, 160 GENERAL INDEX. ' 423 Chauterparty, What it is, 145 Chemists and Druggists Cannot recover for advice, 157 Cheque, Definition of a, 136 The rules as to bills and notes generally apply to, 136 Time within which it should be presented and consequences of non-presentment, 136, 137 Consequences of a banker paying a forged cheque or a cheque with the indorsement forged, 139 A banker cannot recover the amount of a cheque from a person to whom he has paid it on discovering that his customer's account has been overdrawn, 137 Crossing of, 138 — 141, and App. B. When a good tender, 198 Child : See Infants — Parent and Child. Eule as to when testimony of children is admitted, 388 Chose in Action, Definition of, 116 Not generally assignable, but exceptions, 116 — 118 Clergymen Have no privilege in giving evidence, 399, 400 Clubs, Liability for contracts made on behalf of, 160 Code, Advantages of, 2, 3 Cognovit, Definition of, 8 Essentials as to execution of, 8 Difference between^ and a warrant of attorney, 9 Collision, Duty as to removing obstruction in the case of, 336, 337 Combination, Of employers or employees, 229 Common Law, Origin of, 1 As distinguished from equity, 3 424 GENERAL INDEX. Companies, Difference between limited and unlimited, 159 Contract ^^itb, 159, IGO COMPAEISON OF HANDWRITING, Proof by, 390 Composition As to rights against a surety after accepting a composition, 42 With creditors as an excuse for non-payment of a contract, 212—214. Compulsion : See Duress. Money held under compulsion of law cannot be recovered back as money had and received, 21 G Consideration, "What is a valuable, 15, IG "Whether it is sufficient cannot be inquired into, 31 Must api^ear on the face of a written simple contract, except in two cases, 31, 32 May be either executed or executory, 32, 33 "When an executed consideration will support a promise, 33, 34 A merely moral consideration is not sufficient for a simple contract, 35 But a moral obligation which was once a legal one is, 35 As to an impossible consideration, 3G, 37 A pre-existing debt is sufficient for the handing over of a negotiable instrument, 131 Constable, As to liability of, 294, 295 Entitled to notice before action, 295 AVhen he may arrest without warrant, 295 Construction of Contracts, Rules for, 21—26 Contempt of Court, 297 Contracts : For particular contracts, sec other titles. Different divisions of, G, 7 Of record, 7 Specialties and simple contracts, difference between, 13 — 18 Express and implied contracts, difference between, 18 — 19 Executed and executory contracts, difference between, 19 Rules for construction of contracts, 21 — 2G "When an agent's authority to sign must be by writing, 45 GENERAL INDEX. 425 CoNTiiACTS — continued. As to land generally, 48—68 One party to a contract cannot sign for tlic other, 51 When a liability on contract arises, 189, 190 Performance of contracts generally, 191 — 201 Excuses for the non-performance of, 201 — 216 Illegality of a contract is never presumed, 225 Distinction between contracts and torts, 243, 245 Stricter principles observed in assessing damages for breaches of contracts than in respect of torts, 358 CONTRADIOTION, Of an adverse witness when allowed, 385, 386 Contribution, Not allowed between wrong-doors, but is allowed in con- tract, 247 and 247, note («). CONTKIBUTORT? NeGLIGENOE, Definition of, 340 Instance of, 341 The doctrine of, applies to children, &c., 342 A master is liable for his servants, 342 Doctrine of, does not apply to ships, 342, 343 Doctrine of, is founded on the maxim, Volenti non fit injuria, 343 Conversion, Meaning of, 265 Distinction between and trespass, 270, 271 Instances of, 274, 275 May occur by ratification of another's act, 275 When a demand is necessary before action for, 275, 276 Justification of, 276, 278, 279 Who is the person to sue for, 280, 281 Eemedy for, 282 Copyright, Definition of, 46, 151 Term for which it exists, &c., 151 Assignable by mere entry in register, 152 Corporation, Definition of, 158 May be either sole or aggregate, 158 Contract with a, 158, 159 Counsel Cannot recover their fees, 154 May bind their clients by admissions, 405 426 GENERAL INDEX. County Notes, When a good tender, 198 CUEDENCE, It is for a jury to decide as to credence to be given to a ^\'ituess, 410, 411 Crimes, Distinction between, and torts, 240, 241 Ckiminals Are competent witnesses, 384, 385 CiiossED Cheques, Former action tlie subject of, 139 Case of Smith v. Union BanTc of London, 139, 140 Statute of 39 & 40 Vict. c. 81, as to, 141, and App. B. Custom, Eights are sometimes given by, 55 D. Damages, Generally as to, 344—372 Definition of the term, 344 Distinctions between liquidated and unliciuidated, 344— 347 Difference between nominal, general, and special, 348 A greater amount of, than claimed cannot be awarded, 349 New trial may be granted on the point of, 349, 350 An action need not necessarily be for, 350 — 352 Eecovered against several may be levied entirely on one, 352, 353 Liability of an executor or administrator for, 353 Need not always be assessed by a jury, 353, 354 Measure of, generally, 354—362 Must not be too remote, 354 Arising prior to cause of action cannot be recovered, though subsequent ones may be, 357 When defendant's motive may be considered in assessing, 357 Need not necessarily be the legal consequences of defen- dant's acts, 359, 3G0 Interest as damages, 360, 361 Double and treble, 361 May, under Judicature Act, 1875, be obtained by a defen- dant in an action against plaintiff, 361 GENERAL INDEX. 427 Damages — continued. Eecoverable for breach of contract to sell or buy land, 362 — 364 For trespass or other injury to land may sometimes be recovered both by actual occupier and reversioner, 364 For breach of contract to buy or to deliver goods, 365, 366 For breach of warranty, 366 Against carriers, and particularly in actions under Lord Campbell's Act, 367, 368 On fire and life policies, 368 In respect of injuries to land and nuisances, 368, 369 For seduction or breach of promise of marriage, 369, 370 For assault and battery, false imprisonment, malicious pro- secution, and libel and slander, 370 Against a non-attending witness, 370, 371 Against sheriff for negligence, 371 By a servant against a master for wrongful dismissal, 372 Damnum sine injuria. Meaning of, 4, 240 Dangerous Goods, Liability in respect of, 327 Deaf or Dumb Persons Are good witnesses if of sufficient understanding, 388 Death Usually puts an end to right of action, but there are ex- ceptions, 252, 283, 330 What damages are recoverable under Lord Campbell's Act, 367, 368 Presumption as to, after seven years, 382 Debt, Imprisonment for, 297—299 Deeds May prove themselves after thirty years, 382 Provision of Vendors and Purchasers Act, 1874, as to recitals in, 383 Defence Of one's land is justifiable, 254 Or of one's goods, 279, 280 Assault and battery committed in defence of person or property justifiable, 288, 290 Del credere Agent, 105 428 GENERAL INDEX. Detinue, Former action of, 282, 283 Direct and indiuect Evidence, Difierencc betweeu, 373 Distress, What it is, 60 Eequisitcs to enable a landlord to distrain, GO Tilings exempted from, 61, 62 Dogs may be taken in, 63 Bill or note taken for rent does not extinguish right of, 63 Maxim of every man's house is his castle, 63 Landlord may follow goods clandestinely removed, 63 Manner of making a distress, 64 After exinration of lease, or by an executor or administrator, is good, 64 Decision in Six Carpenters' Case, and provision of 11 Geo. 2, c. 19, s. 19 thereon, 64, 65 Replevin, 65 DlVOlICE Does not give a woman a right of suing her husband for torts committed by him during the coverture, 292 Dogs, 0^vners liable for injuries done by, 271 — 273 As to scienter, 271, 272 Injuries to, 274 Dormant Partner : See Partnership. Drunkards : See Intoxicated Person. Dumb or Deaf Persons Are good witnesses if of sufficient understanding, 388 Duress, What is meant by, 186 Persons under, not liable on their contracts, 186 Duty, Entries made in course of, arc admitted as evidence, 381 Diflferencc between, and entries made against interest, 381 ' E. Eaknest, What is meant by, 75 Easements, 254 GENEBAL INDEX. 429 Ejectment, Tenant liable to be ejected on breacli of covenants, but relief given in certain cases, 67, 68 Equitable Defences, 214 — 216 ESOEOW, Meaning of, 13 Estoppel, GeneraUy, 10, U, 15 Tenant is estopped from denying his landlord's title, 54 The doctrine of estoppel does not prevent illegality being- set up, 224 Evidence, Generally as to, 373—411 Direct and indirect, 373 Primary and secondary, 374 Primary must always be given where possible, 374 Except in the case of bankers' books 374, note (?/) Object of notice to produce, 375 No degrees of secondary, 375 Subpoena duces tecum, 376 Hearsay, definition of, 376 Cases in which hearsay is admitted, 376 — 382 Difierent cases in which presumptions furnish evidence, 382, 383 Belief in a God was formerly necessary to render a person a competent witness, but not now, 383, 384 Criminals and infamous persons are now good witnesses, 384, 385 As to contradiction of an adverse witness, 385, 386 Persons interested in result of an action are now good witnesses in it, 386, 387 In adultery and breach of promise cases, however, the parties are only competent, not compellable, witnesses, 387 Evidence of idiots and lunatics, 387, 388 Evidence of deaf and dumb persons, 388 Evidence of children, 388 When necessary to call an attesting witness, 388, 389, 391 Different ways of proving instruments not requiring attes- tation, 389 Object of notice to inspect and admit, 390 Meaning of admission " saving all just exceptions," 390 430 QENERAL INDEX. Evidence — continued. As to proof by comparison of handwriting, 390, 391 What is sufficient for an attesting witness to depose to, 391, 392 Mode of proving a will at a trial, 392 A person is not allowed to make evidence for himself, 393 "When evidence consisting of matters of opinion is receiv- able, 393, 394 Eifcct of not stamping an instrument within the proper time, 395 Privilege, meaning of, 395, 396 A witness is not bound to disclose anything that will criminate himself, 396 Nor a wife that will criminate her husband, 397 No ground of privilege that witness may be exposed to a civil action, 398 Professional communications, 396, 398, 399 No privilege in the case of medical men and clergymen, 399, 400 Communications " without prejudice " are privileged, 400 Miscellaneous cases of privilege, 400 Onus prohandi is on the person asserting affirmative in an action, 400, 401 Unless the presumption of the law puts it elsewhere, 401 Presumption in case of a voluntary settlement, 402 Presumption as to legitimacy, 402 As to leading questions, 403 Effect of plaintiff or defendant not appearing at a trial, 403, 404 Admission may do away with necessity of strict proof, 404 Effect in one action of admission made in another, 404 Admission may be by parol or even by conduct, 405 Effect of admissions by counsel, agents, &c., 405 Admissions cannot be made by an infant, 405 As to interrogatories, 405, 406 As to payment into Court in an action, 406, 407 Admissions may occur by not denying an allegation con- tained in any pleading, 408 Mode of taking, 408 How attendance of witnesses procured, 409, 410 Course when a witness is prevented from r.ttcnding at a trial, 410 GENERAL INDEX. 431 Evidence — continued. When a deposition on a former trial may bo read, 410 Functions of judge and jury as to, 410, 411 Exchange, Origin of the system of, 118 ExBcuTED Consideration, 33, 84 Executed Contracts, 19 Executors and Administrators, Provisions of Statute of Frauds as to their contracts, 39, 40 How they should accept, make, and indorse bills or notes, 123 Effect of a creditor aj^pointing his debtor executor, 212 Liability of, in one action, 353 Executory Consideration, 36 Executory Contracts, Generally, 19 When a liability on, may arise before the time for payment of, 189, 190 Express Contracts and Implied, Difference between, 18, 19 Expressum facit cessare tacitum, 19, 55 F. Factors, Difference between, and brokers, 106 Their power to bind their principals by pledging, 106, 107 Case of George v. Clagett, 107 False Imprisonment, Definition of, 292 Cases in which imprisonment justifiable, 293, 297 As to the liability of justices and constables, 293, 294 A person obtaining a warrant is not liable for false impri- sonment, 295 When a constable may arrest without warrant, 295 When a private person is justified in arresting another, 296—297 As to detention for contempt of court, and for debt, &c., 297, 300 Damages recoverable for, 370 False Representation : See Fraud, 432 GENERAL INDEX. Father : Sec Parent and Child. Fences, Liability to repair, 252, 253, 336 Ferocious Animals, Injuries done by, 271, 272 The doctrine of scienter, 271—273 Finder of Goods, His rights, 268 Fires, As to liability in respect of injuries through accidental fires, 337 Fish, As to property in, 269 Fixtures, What are, 55, 56 Must be removed during tenancy, 56 Originally fixtui'es not removable, 56 Cases in which they are now removable, 56, 57 Contracts for the sale of, need not be in writing, 59. Foreign and Inland Bills, Differences between, 133 Forgery, No title can be obtained through, 132 Fraud, Definition of, in law, and what representations sufficient to constitute, 217, 219 May be legal or moral, 217 Legal without moral fraud not sufficient, 219 As to liability of i)laintiff for his agent's fraud, 218, 219 Difference between a false representation and a warranty, 219 Provision of 13 Eliz. c. 5, and decision in Twynnes Case, 220, 221 Provision of 27 Eliz. c. 4 .. 221, 222 Ex dolo malo nan orihir actio, 222 A person is not liable for a false representation if he believed it true, 222 In pari delicto potior est conditio defendentis ct possidentis, 223 Need not go lo the whole of the contract, 223 general index. 483 Frauds, Statute of, Provisions of, as to ordinary simple contract, trusts, &c., 38—47 As to the memorandum required by the, 45 When an agent within, must be authorized by writing, 45 Provisions of, as to land, 48 — 63 Provisions of, as to goods, 73, 74 Freight, 145 G. Game, As to property in, 269, 270 Gaming Contracts, 231 Difficult to sometimes determine whether a contract is by way of gaming, 231, 232 As to the position of a stakeholder, 232, 233 What is a lawful game within 8 & 9 Vict. c. 109, sect. 18 233 As to horse-racing and lotteries, 234 Bills or notes given for gaming contracts are not void, but to be taken as upon an illegal consideration, 234 General Average, 144 Goods, Contracts for the sale of, generally, 6f) — 85 When the property in goods passes and effect thereof, 69 73, 216 Provisions of Statute of Frauds as to, 73, 74 Provisions of Lord Tenterden's Act as to, 74 As to an acceptance and receipt of goods within the 17th section of the Statute of Frauds, 75 — 77 Eights of vendor for breach by vendee, 81 As to warranty, 82 — 85 Torts affecting — two divisions of, 265 Title to goods, 266—270 Distinction between trespass and conversion, and particular instances, &c., 270—278 Justification of, 278, 279 Miscellaneous points as to, including defence and recaption 279—283 ^ ' Grace, Days of, 124 2 F 434 GENERAL INDEX. Grace — continued. No days of, in the case of instruments payable on demand, at siglit or on presentation, 124 GuAUANTEE ; See Surety. Must always be in writing, by Statute of Frauds, 40 A promise made to a debtor himself however need not be, 40 Provision of Mercantile Law Amendment Act as to, 41 H. Hearsay Evidence, Definition of, 376 Cases in which it is admitted, 376 — 382 Horse, Special provisions as to the sale of, 267 Horse-racing, 234 Husband : See Married Woman. Liability of, and position generally with regard to his wife , 170—184 I. Idiot : See Non compos mentis. Distinction between, and lunatic, 184 Cannot give evidence, 387 Illegality, Makes a contract void, 223, 224 The doctrine of estoppel does not prevent it being set up, 224 Is never presumed, 225 Is of two kinds, 225 As to contracts in restraint of trade, 225 — 229 Other particular cases of, 229 — 236 An illegal instrument cannot be confirmed, 236 Immoral Contracts, Are always void, 230 Imprisonment : See False Imprisonment. Indictment, What it is, 257 Indirect and direct Evidence, Difference between, 373 GENERAL INDEX. 435 Infamous Character, Persons of, may yet give evidence, 384, 385 Infants, Who are, 166 Liability of, on their contracts, 166 — 171 Provisions of Infants' Eelief Act, 1874 .. 167 What are necessaries, 168 Who is liable for necessaries when infant residing with his parents, 169, 170 As to whether liable for money lent to buy necessaries, 170 Effect of representation by an infant that he is of age, 170 Never liable on bills or notes, 171 Contracts to marry by, and marriage of, 171 Infidels Can now give evidence under provisions of 32 & 33 Vict, c. 68.. 384 Information, What it is, 258 Injuria sine damno. Meaning of, 3, 240 Inland and Foreign Bills, Differences between, 133 Innkeeper, Definition of, 97 His liability at Common Law, 97 Collie's Case, 97 Provisions of the Innkeepers Act, 98 May have a lien on his guest's property but not his person, 98 Inspect and admit. Notice to. Object of, &c., 389, 390 Institutions, Liability for contracts made on behalf of, 160 Insurance: See Assurance. Interest Is payable on bills and notes, 134 When recoverable in other cases, 360, 361 Interest, Pecuniary or proprietary. Entries made contrary to, are admitted, 379 Except where they form the only evidence of the interest, 380 2 F 2 436 GENERAL INDEX. Interest, Pecuniary or proprietary — continued. Difference between entries against interest and entries made in the course of duty, 381 Interpleader, What it is, 277 Statutory provisions as to, 277, 278 Interrogatories Used to obtain admissions, 405, 406 But this is not the strict object of, 405, note (s) Provision of Judicature Act, 1875, as to, 406 Intoxicated Persons, Liability of, on their contracts, 185, 186 J. Jettison, 143 Judge Not liable for acts done in discharge of his duties and within his jurisdiction, 246. Judgment, Definition of, 7 Had formerly priority in payment, 11 As to charging lands, 11, 12 Does not affect the title to goods, 269 Justices, As to their liability, 293, 294 Notice must be given before bringing action against, 294 Eight of action barred after six months, 294 Land, Contracts for sale of, must be in writing, 48 But in three cases Chancery has been in the habit of decreeing specific performance of, 48 What is an interest in, 49, 50 Title to be shewn to, 50, 51 Torts affecting, generally, 248—264 Trespass quare clausum frer/it, 248 Time for bringing action for, 251 Eight of land or buildings to adjacent support, 335 GENERAL INDEX. 437 Landlord and Tenant : See Distbess, 48 — 68 Property tax always borne by landlord, 55 Tenant's rights by custom, 55 Fixtures, 55—60 Amount of rent landlord entitled to sue and distrain for, 66 Landlord's rights against an execution creditor, and in the case of bankruptcy, 66 Apportionment of rent, provisions as to, 67, 68 Tenant may appropriate any part of the rent to indemnify himself against prior charges, 68 A tenant wrongfully holding over may be forcibly ejected by landlord, 253 Position of landlord and tenant as to repairs, 334, 335 Latent Ambiguity, Parol evidence is admissible to explain, 23, 24 Leading Questions, What they are, 403 Not allowed in examination in chief, but they arc in cross- examination, 4U3 Leases, Provisions of Statute of Frauds as to, 38, 39, 51, 52 Effect of a parol lease which should have been in writing, 52 On bankruptcy of a lessee, trustee may disclaim lease as onerous property, 67 Legal Practitioner : See respective titles. Legitimacy, Presmnption as to, 402 Lex non scripta. Meaning of, 1 Lex scripta, Meaning of, 1 Liability on Contracts, When it arises, 189, 190 Libel and Slander, Definition of libel, 303 Not necessary a libel should have caused any special damage, 303, 304 Instances of words held to be libellous, 304 Publication of libel must be proved, 305 A person unwittingly publishing a libel is not liable, 306 Malice in law is essential to constitute; a libel, 30G 438 GENERAL INDEX. Libel and Slander — continued. Privileged communications, 306 — 310, 316 Effect of truth of libel, 310 Effect of apology for a libel, 311 Action for libel must be brought within six years, 312 Definition of slander, 312 When a criminal jirosecution will lie for slander, 312 Instances of slander, 313 Facts to be proved in an action for slander, 313 Special damages must be proved in an action for slander, except in three cases, 314, 315 Effect of truth of slander, 316 Action for slander must be brought within two years, 317 Summary of differences between, 317 Damages recoverable for, 370 Lien, Definition of, 78 No lien where goods sold on credit, 78 Is a mere passive right, 79 Distinction between a pawn and a mortgage, 88, 89 Limitations of Actions, Periods for, 17, 66, 202—204, 202, note (s), 249, 250, 294, 312, 317. Nature of an acknowledgment, 46 Object of the Statutes of Limitation, 201, 202 Meaning of, beyond seas, 204 Four ways in which the Statutes of Limitation may be prevented from applying, 205 What is sufficient acknowledgment, 205, 206 Effect of acknowledgment by one of several, 206 Effect of payment by one of several, 207 As to issuing process to prevent statutes applying, 208 Liquidated Damages, Distinctions between, and unliquidated damages, 344 — 347 Liquidation and Composition As an excuse for non-performance of a contract, 212 — 214 Lodgers' Goods Cannot be taken in distress or execution, 62 Lodging-house Keepers, Liability of, 99 Lord's Day Act, The, 235, 236 GENEEAL INDEX. 439 Loss OF Service : See Sedxjotion, Actions for, may arise quite irresi>ective of seduction, and instance of, 323 LoTTEEIES, 234 Lunatic : See Xon compos mentis. Distinction between, and an idiot, 184 Can only give evidence during a lucid interval, 387 M. Maintenance, Definition of, 230 Malice, Difference between, in law and in fact, 301 Malicious Arrest, 300 Malicious Prosecution, A person obtaining a warrant may be liable for, 295 Definition of, 300 Three essentials in an action for, 300, 301 Difference between malice in law and malice in fact, 301 Malice in law sufficient to support an action for, 301 A prosecution not at outset malicious may become so, 302 ' No action lies for malicious prosecution of a civil action 302 Nor by a subordinate against a commanding officer for bringing bim to court-martial, 302 Damages recoverable for, 370 Marriage; An agreement made in consideration of, must be in writing 43 Infants not liable on contracts for, but if marriage takes place it is generally binding, 171 Contracts in general restraint of, are invalid, 230 Married Woman May insure ber husband's life, and policy may be expressed to enure for separate use, 149 Position of, and of husband, as to conti-acts made before marriage, 170 — 175 The same as to contracts made after marriage and during cohabitation, 176 — 180 Cases in which a mai-ried woman is in position of a feme sole, 176, 177 440 GENERAL INDEX. Markied Woman — continued. "NVlieu, can be made bankrupt, 177 Position of, and of liusband, as to contracts made after marriage, but during separation, 180 — 184 Effect of notice in papers by husband that he will not bo liable for his wife's debts, 182, 183 A husband is liable for costs of any proceedings rendered necessary by his conduct, 183 Who is liable on a contract by a wife for necessaries when husband is dead unknown to her, 183, 184 Effect of a woman marrying her creditor, 212 A wife cannot sue her husband for a tort committed during coverture, even though she has since obtained a divorce, 292 Master and Servant, Different kinds of servants, 161 Effect of a general hiring, 161, 162 As to the power of a servant to bind the master by his contract, 162 As to master's liability for his servant's torts, 163 Servant entitled to wages during illness, 163 Master not bound to provide medical attendance for his servant, 163 But if he sends for a medical man he will be liable, 163 Master not liable for injuries happening to his servant in the course of the service if he provided proper tackle and competent co-servants, 163, 164 Length of notice to determine relationship of, 164 When master may discharge servant without notice, 164 Effect of death on relationship of, 165 Master's position as to giving a character to his servants, 165 Ma,8ter may reasonably chastise his apprentice, 291 Master not liable for injuries done to a servant by the negligence of a co-servant, 333, 334 Damages recoverable by a servant for wrongful dismissal, 372 Maxims, Expressma facit cessare taciturn, 19, 55 Every man's house is his castle, 63 Qui facit per alium facit per se, 100, 333 Omnis ratihahitio retrotrahitur et mandatn priori ccquiparatiir, 102 GENERAL INDEX. 441 Maxims — continued. Caveat emptor, 149 Ex dolo malo non oritur actio, 222 In pari delicto potior est conditio defendentis et possidentis, 223 Quod ah initio non valet in tractu temporis non convalescit, 236 The king can do no wrong, 246, 246 note (d) Ex turpi causa non oritur actio, 247 Actio personalis moritur cum persona, 252, 283, 330 Volenti non fit injuria, 343 Mayhem, What it is, 287, 288 Medical Men, Wlien they may recover their fees, 157 No privilege in giving evidence, 399, 400 Merger, What it is, 9, 13 Mesne Profits, 364 Monopolies, The Statute of, 150 Month, Meaning of the term, 26 Moral Consideration Is not sufficient to support a simple contract, 35 But a moral obligation which was once a legal one will support a i)romise, 35 Mortgagor, Provision of Judicature Act, 1873, as to his powers, 53, 54, 251 Motive Of a defendant cannot be looked to in an action ex con- tractu, but can be in an action ex delicto, 357 Mutual Assent necessary to a simple contract, 28 N. Necessaries For an infant, what are, 168 Negligence, Liability of voluntary bailee for, 86, 87 442 GENERAL INDEX. Negligence — conthmed. If a fire occurs by, the negligent person is liable, 262 Torts arising peculiarly from, 324—343 What is, is a question of fact for a jury, 324 Injury arising from negligence of a sub-contractor, 326 Liability in respect of dangerous goods or animals, 327 An action for, may be maintained ii*respective of privity, 327 The liability of carriers depends on question of, 829, 330 Maxim of actio personalis moritur cum persona, ^^Tidi statutory provisions thereon, 330 — 332 Master not liable for injury done to a servant by negli- gence of a co-servant, 333 Causing injury to land or buildings, 334-337 Collisions arising through, 336, 337 Liability as to fires caused by, 337 By sheriff's officers, 338, 339 Defences to an action for, 339 — 343 Contributory, 340—343 New Trial May be granted on the point of damages, 349, 350 Nominal Partner : See Partnership. NoN coBiPOs mentis, Two classes of persons of this kind, and difference between, 184 Liability of such persons on their contracts, 184, 185 Idiots cannot give evidence, and lunatics only can during a lucid interval, 387 Non-performance of Contracts, Excuses for, generally, 201 — 216 Notice to inspect and admit, Object of giving, &c., 389, 390 Notice to produce, Object of giving, &c., 375 Noting and Protesting, What is meant by, and when necessary, 133 Nuisance, Definition of, 255 Instances of nuisances, 255, 256 Wliat sufficient to constitute a, 256 An act may bo a nuisance though a benefit to others, 256 GENERAL INDEX. 443 Nuisance — continued. A person coming to a nuisance has still a right to have it abated, 257 Differences between a public and a private nuisance, 257 When a private remedy lies for a public nuisance, 258, 259 Abatement of, 259, 260 May arise peciiliarly from negligence, 328 Damages recoverable in respect of, 369 0. Object of a Contract Must not be illegal or immoral, 87 Officer, Superior, Not liable for acts done in the course of his duty, or justi- fied by his position, 247 Is justified in detaining subordinate, 293 No action lies against, for malicious prosecution in bringiag subordinate to court-martial, 302 Onus Probandi Is on party seeking to prove affirmative in an action, 400, 401 But presumption of law may put it where it would not otherwise be, 401 Opinion, When matters of, are receivable in evidence, 898, 894 An affidavit on an interlocutory application may contain a statement founded only on deponent's belief, 394 P. Parent and Child : See Infants. Father justified in chastising his child reasonably, 290, 291 Or in detaining him, 293 Child born during wedlock is presumed to be legitimate, 402 Parol Evidence Is not admissible to vary a written contract, but is admis- sible to explain a latent ambiguity, 23, 24 Parol Lease, When good, 51 Effect of, when required to be in writing, 52 Particular Average, 144 444 GENERAL INDEX. Parties to Action Are now good witnesses, 386, 387 Pabtnership, Different kinds of partners, and liability of each, 107 — 112 Wbat will constitute a partnership as between the parties themselves and as regards third parties, 109 — 112 Effect of case of Cox v. Hickman, and statute 28 & 29 Vict. c. 86.. Ill As to liability of other partners for act done by one, 112 Introduction of a new partner and his position, 113 How it may be dissolved, 113, 114 Partners must all be competent to contract, 115 Provisions of Judicature Act, 1875, as to, 115 Eemedies between partners, 115, 116 Patent, Definition of a, 150 Term for which it may be granted, &c., 150, 151 Patent Ambiguity, Parol evidence not admissible in the case of, 23, 24 Pawn, Distinction between, and a lien and a mortgage, 88, 89 Pawnbrokers, generally, 89, 90 Their special power to arrest, 297 Payment, Definition of, and generally as to, 192 Eule as to appropriation of payments, 193 A smaller sum cannot satisfy a greater, 193 Effect of payment by a cheque, bill, or note, 195 Through the post, 195 Into court, 195, 196, 406— 408 Of interest or part payment of principal prevents Statutes of Limitation applying, 207 Effect of such & payment by one of several, 207, 208 Pedigree, To prove matters of, hearsay evidence is admitted, 377, 378 Penalty, Sum agreed to be paid by way of, cannot be enforced, 346, 347 Peefoemance of Contuacts, Generally, 191—201 GENEEAL INDEX. 445 Performance of Contracts — contimied. Excuses for non-performance generally, 201 — ^216 Performance of contracts may sometimes be presumed, 194, 195 Person, the, Torts affecting, Assault and battery, 284—292 False imprisonment, 292 — 300 Malicious arrest, 300 Malicious prosecution, 800 — 302 Libel and slander, 303—317 Seduction and loss of service, 318 — 323 Injuries to the person from negligence, 325 — 334 Physicians, When they may recover their fees, 157 Policy of Assurance : See Assurance. Post, When a contract taking place through, is complete, 30 Presumption, Cases in which presumptions furnish evidence, 382 May sometimes cause the burden of proof to be where it would not otherwise be, 401 Various cases of, 401, 402 Primary and Secondary Evidence : See Evidence. Difference between, 374 Principal and Agent, When an agent must be authorized to sign a contract by writing, 45 Persons not sui juris may act as agents, 100 Three kinds of agencies, and differences between them, 101 Effect of giving credit to an agent, 102 When an agent is personally liable, 103 The different ways in which an agent's authority may be revoked, 104 An agent's authority includes all incidental acts, 104, 105 The principal is the person to sue on a contract generally, 105 Duty of agent, 105 Del credere agent, 105 As to factors and brokers, 106, 107 As to principal's liability for liis agent's fraud, 218, 219 Power of agent to bind principal by his admissions, 405 446 GENERAL INDEX. Pbivate Person, Wlieu justified in arresting another, 296 Privilegb, Definition of a privileged communication in libel, and generally as to, 306 — 310 Two chief cases of, in evidence, 396 1. On the ground of criminating oneself or one's hus- band, 396—398 ; and 2. In the case of professional communications, 396, 398, 399 None, in the case of medical men and clergymen, 399, 400 Miscellaneous cases of, 400 Produce, Notice to, object of giving, &c., 375 Professional Communications : See Privilege. Pbomissory Notes: See Bills of Exchange, 118 — 136 Property in Goobs, When it passes, and effect of its passing, 69 — 73, 216 Property Tax Is always borne by landlord, 55 Protesting, What is meant by, and when necessary, 133 Publication of Libel : See Libel and Slander. Public or General Interest, To prove matters of, hearsay evidence is admitted, 377 Q. Quantum Meruit, When a person may recover on, 368 R. Eailway Companies : See Carriers. Bound to fence out cattle, 253, and 253 note (p) Injuries done by, and maxim of actio personalis moritur cum persona, and statutory provisions thereon, 330 — 332 Liability of, for injuries done by a train overshooting a platfonn, 333 Not liable for injury from sparks emitted from engine, 338 Liability of, by reason of unpunctuality of trains, 339 GENERAL INDEX. 447 Recaption, What it is, 280 How a person is justified in eflfecting, 280 Record, Contracts of, Generally as to, 7 Peculiarities of, 9, 12 How proved, 12 Release, What is meant by, 211 To one of several jointly liable, discharges all, 211 Effect of a contract not to sue entered into by one of two joint creditors, 212 Instances in which it may occur by operation of law, 212 Replevin, 65 Representation Concerning a person's credit must be in writing, 220 Reputation, Hearsay evidence admitted as to, 379 Res gest^. Hearsay evidence is admitted where it forms part of, 378, 379 Respondentia, 145 Restraint of Trade, Contracts in, Are generally illegal, but may sometimes be good, 225 — 227 But to be good must be limited and reasonable, and for a valuable consideration, 227, 228 Part of such contracts may be good and part bad, 228, 229 As to combination of employers, &c., 229 Reversioner, When he may sue for trespass to land, 251 Rights of Common, 254 Riparian Proprietors, 255 S. Sailors Liable to be reasonably chastised or imprisoned by captain, 291 Salvage, 144 4-1:8 GENERAL INDEX. Satisfaction, A smaller sum cannot satisfy a greater, 193 Bi;t anything different, even a negotiable security, may, 193, 194 Schoolmaster Is justified in reasonably chastising a scholar, 291 Scienter, When necessary to be shewn in injuries by animals, 271—273 Secondary Evidence : See Evidence. Seduction, Nature of action for, and generally as to, 318 — 320 As to the relationship of master and servant necessary to enable a person to sue for, 320 — 322 It is a good defence to shew that defendant not the father of the child, 322 Damages recoverable for, 369 Set-off, In the case of goods bought of a factor, and principal suing, 107, 210 Definition of, 208 Former rules as to, 209 Statutory provisions as to, 209, 210 Sheriff, Duties of sheriff's officers, 338, 339 Damages recoverable against, for officer's negligence, 371, 372 Ships, How shares in, transferred, 142 As to ownership of, 142, 143 Powers of masters of, during voyage, 143 Jettison, 143 As to general and particular average, 144 As to salvage, 144 Bottomry and respondentia, 144, 145 Differences between a charterparty and a bill of lading, 145 As to freight, 145 Liability of owners of, for losses during a voyage, 146 Simony, Definition of, 235 GENERAL INDEX. 449 Simple Contracts, Distinction between, and specialties, 13 — 18 Definition of, 27 Four essentials to, 27 Mutiial assent always necessary, 28 What is necessary to establish a contract from different instruments, 28, 29 As to a contract through the post, 30 As to consideration, 31 A writing must usually shew the consideration as well as the promise, 81, 32 When an executed consideration is sufficient for, 33, 34 A merely moral consideration is not sufficient for, 35 Chief eases in which wi-iting necessary for, 37, 38 Limitation of, 203 Slander : See Libel and Slander. Solicitors Must deliver a signed bill before suing for costs except leave obtained, 154 May contract for remuneration by commission or otherwise, 155, 230 Costs may be made a charge on property recovered, 155 Their duty, 155 When proceedings commenced by, may be discontinued, 155 When negligence may be set up as a defence to an action for costs, 156 Position of, in dealing with clients, 156, 157 Payment to a solicitor in an action is sufficient, 192 Son assault demesne. Defence of, 289 Special Pleaders Not at the Bar may recover their fees, 154 Specialties, Distinctions between, and simple contracts, 13 — 18 Limitation of, 202 Specific delivery of Chattels, Provisions as to, 351 Practice of Chancery as to, 352, note (s) Stakeholder, His position, and rights of the parties as to deposit, 232, 233 2 G 450 GENERAL INDEX. Stamping Instuu.ments, Times allowed for, 236 Eficct of not stamping witliin proper time, 23G, 395 Proper stamp for an agreement and cxcmpticms, 23G, 237 Statutes : For Index of, see p. xvii. Stolen Goods, Eights as to, and effect of sale in market over, 2G6, 267 Stoppage in Transitu, Definition of, 79 Origin of, 79 How it may be lost, 79 When the goods are in transitits, 79 How effected, 80 Effect of, on the contract, 80, 81 SUBPfflNA, Service of, must be personal, 158 Duces tecum, 376 Sdfficiency Of a consideration cannot be inquired into, 31 Suicide, Effect of, on a policy of assurance, 150 Surety : See Guarantee. His rights on paying principal's debt, 41 To or for a firm, 41 Acts which will operate to discharge him, 41 Effect of a principal accepting a composition under the Bankruptcy Act, 42 Surgeons, When they may recover their fees, 157 T. Tender, What is meant by a, 19G The essentials to constitute a valid tender, &c., 196, 197 In what money it may be made, 198 When country notes or cheques are a good tender, 198 If refused the money mi>st still be kept ready, 198 Effect of, 199 Time, When of the essence of a contract, 25, 26 GENERAL INDEX. 451 Title To be shewn to lands, 50, 51 To goods generally, 266—270 As to stolen goods, 266, 267 Eights of a finder of goods, 268 Treasure trove, 268, 269 Property in animals, fish, and game, 269, 270 ToETS : For particular torts, see other titles. Definition of a tort, 238 Divisions of, and as to, generally, 238 — 247 The newness of a tort is no objection to an action, 239 Distinction between, and crimes, 240, 241 When amounting to crimes, civil remedy susi)ended until after prosecution, 242 Exceptions, however, to this, 242, 243 As distinguished from contracts, 243 — 245 There is no indemnification between wrong-doers, 247 Affi;cting land, 248—264 Affecting goods and other personal property, 265 — 283 Affecting the person, 284—323 Arising peculiarly from negligence, 324 — 343 Looser principles are observed in awarding damages for, than in respect of, breaches of contract, 358 Tkade-maeks, The nse of, implies a warranty, 84, 154 Definition of, 152 There may be a qualified jH-operty in, 152 Provisions of the Trade-marks Eegistration Act, 1875 . . 152, 153 Trade Union Act, 1871 .. 229 Treasuee Trove, Eights as to, 268, 269 Trespass de bonis asportatis, Meaning of, 265 Distinction between, and conversion, 270, 271 Instances of, 271—274 Justification of, 278, 279 Who is the person to sue in respect of, 280, 281 Eemcdy for, 281, 282 452 GENERAL INDEX. Trespass quare clausum fregit, Mcauiug of, 248 An action for, tries the title to lands, 249 Possession is an essential to an action for, 250 "When a reversioner may sue for, 251 When a mortgagor may sue for, 251 Special damage need not be proved in an action for, 252 Eight of executors or administrators to sue for, 252 What will amount to, 252 A trespasser may be forcibly ejected, 254 A person is justified in forcibly defending possession of his lands, 254 Damages recoverable for, 368 Trial, Effect of plaintiff or defendant not appearing at, 403, 404 Trover, Former action of, 282 Trusts, Provision of Statute of Frauds as to, 39 Truth of Libel or Slander, Effect of, 310, 31f5 u. Unliquidated Damages, Distinctions between, and liquidated, 344—347 Usance, Meaning of the term, 125 V. Voluntary Deed, In what respects not as good as a deed for valuable con- sideration, IG, 17 If called in question burden of proof lies on person taking a benefit under, 402 W. Wagebs : See Gaming Conthactb. Wageb Policies Are invalid, 235 GENERAL INDEX. 453 Warrant, Definition of, and mode of acting thereunder, 293 Person obtaining, is not liable for false imprisonment, but may be for malicious prosecution, 295 When a constable may arrest without, 295 Protects constable acting under, 295 Warrant of Attorney, Difference between, and a cognovit, 9 Warranty, Definition of, 82 May sometimes be implied, 83 As to warranty of title, 83 As to warranty of quality, 84 From trade-marks, 84 Does not extend to aj)parent defects, 84 Remedies on breach of, 84, 85 Distinction between, and a false representation, 219 Damages recoverable for breach of, 366 Waste, Definition of, 261 Persons liable for, 261 Different kinds of, and distinctions between, 261, 262 May occur by fire, 262 Remedies for, 262—264 Will, Tenancy at. May arise from construction of law, 53 Wills May prove themselves after thirty years, 382 How proved at trial, 392, 393 Without prejudice, Communications made, are privileged from being given in evidence, 400 Witnesses : See Evidence. Their claim for expenses is not against solicitor, but the party who has subpcBnaed them, 157 Are entitled to be paid expenses, but not generally for loss of time, 157, 158 Service of subpoena on, must be personal, 158 Statements of, are absolutely privileged, 308, 309 Damages recoverable against, for not attending, 370, 371 How attendance of, procured, 409 454 GENERAL INDEX. Witnesses — conthmed. Course wheu a witness cauuot attend at tlic trial, 410 When deposition of a deceased witness in a former trial may be read, 410 WlUTIXG, When necessary for a simple contract, 37, 38 Not necessary on a contract for sale of fixtures, 59 Representations concerning a person's credit must be in, 220 Wkongful Dismissal : See Master and Servant. Damages recoverable in an action for, 372 Y. Yeab, An agreement not to be performed in, must be in writing, 43 Yeah to Year, Liability of tenant by, as to repairs, 54 l.ONlWS : PniKTKD I!V WII.I.IAM CLO'WI S AND 80MS, STAMFORD STREET AND CHABIKO CUOS8. ^^ i^t. ,u^ ^, i tU^A^ (yjJuJX ouu^r uZ ouuu^uiM. kcLi^ Jut I Cl.(^ , . . **^*C; ^ UL4j( Cut. *^ J nouju. xjX c/u.>.14si. ^i^^j c^-^j totu^ \\^ ^^"1 ^^Utui/uv^f,^ ^SJl.G. ,f. '^' J UuMi !>■' '■. w^uMJu w ■ ' Di}.uL t i-JU^ t^^ uiui. U. tUui iM ^ ^ ^t^^^^^^^^ t^y^^^M^^ iA i^o.J/kJ^ :^Ajd^ A CATALOGUE OF LAJV WORKS PUBLISHED AND SOLD BY STEVENS & HAYNES, BELL YARD, TEMPLE BAR, LONDON. BOOKS BOUND IN THE BEST BINDINGS. Works in all Classes of Literature supplied to Order. FOREIGN BOOKS IMPORTED. LIBRARIES VALUED FOR PROBATE, PARTNERSHIP, AND OTHER PURPOSES. LIBRARIES OR SMALL COLLECTIONS OF BOOKS PURCHASED. A large Stock of Reports of the various Courts of England, Ireland, and Scotland, always on hand. Catalogues and Estimates Furnished, and Orders Promptly Executed. Note. — To avoid confusing our firm with any of a similar name, we be g to notify that zve have no connexion ivhatever with any other house of business, a7id we respectftilly request that Corrc- spondeuts will take special c are to direct all comnumications to the above names and address. 1.7.78 STEVENS & HATNES, BELL TAKD, TEMPLE BAB. INDEX OF SUBJECTS. PAGE ADMIRALTY LAW— Jones 14 Kay 17 AGRICULTURAL HOLDINGS— Brown 13 ARTICLED CLERKS— Sc-c- STUDENTS. ARTIZANS AND LABOURERS' DWELLINGS— Lloyd 13 ASSAULTS— .$■. Attorney General . . . . 7 STEVENS & HAYNES, BELL YARD, TEMPLE BAR. Now ready, in one thick volume, 8vo., price 30^., cloth lettered. THE SUPREME COURT OF JUDICATURE ACTS 1873, 1875, & 1877: THE APPELLATE JURISDICTION ACT, 1876, AND THE RULES, ORDERS, AND COSTS THEREUNDER: EDITED WITH NOTES, REFERENCES, AND A COPIOUS ANALYTICAL INDEX. EMBODYING ALL THE REPORTED CASES TO MICHAELIVIAS SITTINGS, 1877, AND A TIME TABLE. BY WILLIAM DOWNES GRIFFITH, Of the Inner Temple, Barrister-at-Law and a Judge of County Courts ; Author of " Griffith's Bankruptcy," &c. AND RICHARD LOVELAND LOVELAND, Of the Inner Tem])le, Barrister-at-Law ; Editor of " Kelyng's Crown Cases," " Shower's Cases in Parliament," and " Hall's Essay on the Rights of the Crown in the Seashore," &c. REVIEWS. rank of an Excursus on a branch of Law.' Magazine and Review. -Law " Our modem reform is real, and it is certainly beneficent, and depending as it does much upon the decisions of the judges, it is no small advantage that it is so ably explained by such authors and editors as Mr. Griffith and Mr. Loveland." — T/ie Law Times. •" Much care and industry have been shown in the collection of the cases and the arrangement of the book, and the facilities given by the mode of printing enable the reader to find his way readily to any part of the Acts or Rules he may wish to con- sult." — Solicito/'s' Journal. " Mr. W. Downes Griffith appears to have met with the success which we confidently anticipated for his book when it first came out. His system of annotation remains fuller than that of most of his contemporaries, and rises not unfrequcntly to the "Of the many editions of the Judicature Acts which have appeared, there is certainly none which can be fairly compared with it. The original portion of the work— the editorial notes — is admirably done. It appears to embody, as stated in the title page, 'all the reported cases to Michaelrnas sittings 1877,' ^nd these cases are fully and clearly digested ; but in addition to the work of citation, the editors have supplied a large amount of valuable annotation on the old rules of pleading, practice, and procedure, as affected by the new. We may refer as examples to the Notes on Pleading, p. 254 ; Demurrer, p. 288 ; Discovery and Inspection, p. 306; and Change of Parties, p 417. A cursory glance at these notes will satisfy any lawyer as to the value of the work. The 1 ime-table, which contains in double coluiun a list of the various proceedings in an action, and a statement of the time limited in respect ot each, is sure to^be appreciated by the practitioner. The Index, which extends over 164 pages, is full and complete." — A ew Zealand Jurist. " If continued popularity should not await this most practical and exhaustive exposition of the working of the Supreme Court of Judicature Acts and Orders, we can only say that it will not be because the editors have not fulfilled their aim, in rendering it a sure and useful guide to the new pro- cedure." — Irish Law Times. " The authors deserve the gratitude and appre- ciation of those who consult this work, for (as we have often observed) references to cited cases to all the authorities is of the utmost consequence to those gentlemen in the legal profession whose libraries are of limited extent. This work is highly commendable . . . ." — Law Journal. STEVENS & HAYNES, BELL YARD, TEMPLE BAE. Third Edition, in 8vo., 1876, price 25^., cloth, THE ACTS RELATING TO PROBATE, LEGACY, AND SUCCESSION DUTIES. COMPRISING THE 36 GEO. III., Cap. 52 ; 45 GEO. III., Cap. 28 ; 55 GEO. III., Cap. 184 ; AND 16 & 17 VICT., Cap. 51 ; AN INTRODUCTION, COPIOUS NOTES, AND REFERENCES To all the Decided Cases i?i England, Scotland, and Ireland ; AN APPENDIX OF STATUTES, TABLES, AND A FULL INDEX. By ALFRED HANSON, OF THE MIDDLE TEMPLE, ESQ., BARRISTER-AT-LAW ; COMPTROLLER OF LEGACY AND SUCCESSION DUTIES. INCORPORATING THE CASES TO MICHAELMAS SITTINGS, 1876. Reviews of Second Edition. " It is the only complete book upon a subject of great importance, but which does not come within the regular course of professional study, and therefore requires to be read up when a case having reference to it comes into the solicitor's office. " Mr. Hanson is peculiarly qualified to be the adviser at such a time. Hence a volume without a rival." — Law Times. " Since Mr. Hanson produced his first edition he has been appointed Comptroller of Legacy and Succession Duties. His book is in itself a most useful one ; its author knows every in and out of the subject, and has presented the whole in a form easily and readily handled, and with good arrangement and clear exposition." — Solicitors' Journal. In royal 8vo., 1877, price lOj., cloth. LES HOSPICES DE PARIS ET DE LONDRES. THE CASE OF LORD HENRY SEYMOUR'S WILL (WALLACE V. THE ATTORNEY-GENERAL). Reported by FREDERICK WAYMOUTH GIBBS, C.B., Barfister-at-Law late Fellow of Trinity College, Cambridge. ' STEVENS & HAYNES-, BELL YARD, TEMPLE BAR. In one volume, 8vo, 1875, price 28^., cloth, THE LAW RELATING TO PUBLIC WORSHIP; WITH SPECIAL REFERENCE TO Qpatrcc0 of Kitual and iSDcnamentation, AND THE MEANS OF SECURING THE DUE OBSERVANCE THEREOF, AND CONTAINING IN EXTENSO, WITH NOTES AND REFERENCES, . THE PUBLIC WORSHIP REGULATION ACT, 1874; THE CHURCH DISCIPLINE ACT; THE VARIOUS ACTS OF UNIFORMITY ; THE LITURGIES OF 1549, 1552, and 1559, COMPARED WITH THE PRESENT RUBRIC; THE CANONS; THE ARTICLES; AND THE INJUNCTIONS, ADVERTISEMENTS, AND OTHER ORIGINAL DOCUMENTS OF LEGAL AUTHORITY. By SEWARD BRICE, LL.D., OF THE INNER TEMPLE, BARRISTER-AT-LAW. " To the vast number of people 7uho in vajioics ways are ititerested in the workino-of the Act, Mr. Br ice's volume cannot fail to be welcome. It is well conceived and carefully executed.'' — The Times. " This excellent compilation of the law relating to a subject of very great interest and importance . . . it is well arranged ; the practitioner will find all the material ready to his hand, Mr. Brice having spared no pains in describing the procedure as elucidated by the decisions of the Privy Council. In Mr. Brice's work the ecclesiastical practitioner and the church authorities will be provided with a reliable guide to Church Law under the Act of 1874." — Law Times. " Dr. Brice's book upon the law relating to public worship has been, as may be supposed, specially framed for the use of clergymen, church- wardens and others, interested in the rcgiilation of our Church services. Here there is condensed in one volume all the material for the guidance and control of public worship, and both ecclesiastics and laymen can, by aid of the index, find out at a glance the exact state of the law as interpreted by the highest authorities upon any given point ; and churchwardens and others can ascertain the exact steps which should be followed by those who desire to put a stop to breaches of the law. The work deserves, and will no doubt have, a very extensive sale." — Standard. " To taiv students the very clear exposHion of the various statutes relating to rites and sacraments, ceremonials, vestments, ornajnentation, ecclesias- tical remedies and punishments, the juri.'^diciion 0/ the ordinary, &rc., 'mHI he of the greatest value, as well for tlie methodical arrangement which characterises it. as for the erudition displayed in the comments, and the clearness nnd lucuiity of the style in which they are couched. Several autho- ritative enactments relating to public worship, and the various editions of the articl«s, arc givjn in extenso ; and the numerous cases incidentally alluded to throughout the volume are alphabetically arranged and tabulated." — Morning Post. " Dr. Brice's large and learned work is a very complete'manualfor its purpose." — Guardian. "Dr. Brice's book contains a great )nass oj information on ecclesiastical matters, which must at all times be valuable for referetice." — The Record. " We can confidently recommend the treatise to all those who are concerned in the subject. To students it will be useful as a compendium of eccle- siastical law. To lawyers it will be a handy book of reference. To clergymen and parishioners it will be a valuable guide, and may perhaps prevent some useless litigation. An index of twenty-two pages, and a table of upwards of 300 cases, testify to the labour bestowed upon this treatise ; but it is not a mere compilation, and only an author who has thoroughly mastered the subject could have written the book." — Law Journal. "The purpose of Mr. Seward Brice's treatise on ' The Law Relating to Public Worship' is, as stated in the preface, to give ' a full exposition of the Law of Public Worship, in so far as it concerns the external forms and cultus enforced or merely per- missible by the rules of the Church of England,' special prominence being assigned to the subjects of ornaments, ceremonial, and vestments. The work is very carefully and thoroughly done, and includes not only a clear account bolh of the sub- stantive law and of the means of enforcing it, but th".; text of tlie pertinent statutes and of other docu- ments bearing upon the matters discussed." — Daily News. STEVENS & HAYNES, BELL YAKD, TEMPLE BAR. In one thick volume, 8vo., 1873, price 3o.f., cloth, THE LAW AND PRACTICE IN BANKRUPTCY; Comprising the Bankruptcy Act, 1869 ; the Debtors Act, 1869 ; the Insolvent Debtors and Bankruptcy Repeal Act, 1869 ; together with the General Rules and Orders in Bankruptcy, at Common Law and in the County Courts • With tlie Practice on Procedure to Adjudication, Procedure to Liquidation, Procedure to Composition, and Procedure under Debtors' Summons, Scales of Costs and of Allowance to Witnesses. Copious Notes, References, and a very full Index. Second Edition. By Henry Philip Roche and William Hazlitt, Barristers-at-Law, and Registrars of the Court of Bankruptcy. From THE LAW. "The aim of the authors in writing this book has been to make it useful to the profession, and in this they have eminently succeeded. Bringing to their task a long and varied experience of Bankruptcy laws, they have been able, from their position as Registrars of the Court, also to acquire more know- ledge of the practical working of the new Act than could well have been obtained by any other writer, however gifted and industrious. The last statute, which by itself looked so simple, has, from the number and complexity of the rules framed there- under, probably surpassed all its predecessors in accumulating a mass of forms and ceremonies. Therefore it is that a book like the above becomes absolutely necessary, more especially to solicitors who have but a small practice in Bankruptcy. The portion of the work which to s,uch will be found most useful, is that on the practical procedure ; where they will find plain and minute directions as to setting about the commencement of a Bankruptcy or Liquidation, and also as to its continuance and conclusion. There is also a special and carefully written chapter on Costs. There are included in the work all the statutes, rules, forms, and scales of costs, which can be wanted in a Bankruptcy case ; while the Index is a book of itself, and seems unusually complete. The type and binding could not well be better. Altogether we can say of this book that it is the product of hard work, by men who know of what they write, and that it is worthy to stand beside our best text-books on the shelves of every lawyer." From the LAW TIMES. "This work is one which has naturally carried with it more weight than any other text-book, having been written by two registrars of the Court of Bankruptcy. In practice it has been found to realise the anticipations formed concerning it, in proof of which we have now in our hands a second edition. Perhaps the most valuable feature of the work is the fulness of the practical details which enable a tyro to transact his business with tolerable security. The first half of the work comprises the Bankruptcy Act and the Debtors Act, which have been carefully and ably noted with all the deci- sions . and the latter half is devoted mainly to practice and procedure. The Bills of Sale Act and one or two other enactments are incorporated which are frequently consulted by the bankruptcy practi- tioner. A very elaborate index ends the volume." From the LAW JOURNAL. " The work before us also contains the Debtors Act of 1869, the Bankruptcy Repeal Act of 1869, the Abscondmg Debtors Act, i86g, with several other Acts and all the General Rules in Bankruptcy, prmted and annotated in the same manner as the principal Act. There is also a very full collection of forms and bills of costs ; iui the portion 0/ thetvork ■U'/iick is decidedlv the most nonet, andwe itnagine ivi'l prove extremely usejiil, is that comprised in pages 355-474, -which contain an exposition by the (inihors on the pi actice on procedure to adjudication, liquidation, and composition, -with creditors, and pn procedure under a debtors' suminons. It is not often that a practising- lazuyer is able to turn to a book on Practice written by tJie judges oj the parti- cular Court to -which it relates, and, as it ivere, stamped with tfie si-al 0/ authority In con- clusion, zve have only to say that Messrs. Roche and Hazlitt have appended to tlieir work a very /nil and copious index, and that we can cordially and conscientiously recofnmend it to tlie notice oJ the legal pro/ession." From the SOLICITORS' JOURNAL. " In the book before us, a reader is enabled by means of large consecutive figures at the head of each margin to reach the section and cases he re- quires without the trouble of referring to the index. In the hurry of daily practice this will probably be found no small advantage. In the subsequent chapters on adjudication, liquidation, composition, and debtors' summons, the arrangement adopted is the convenient one for practical purposes of tracing each consecutive step of the procedure, and weld- ing together the provisions of the Acts, Rules, and Forms, with the substance of the cases. This appears to us to be successfully accomplished, and the book, as a whole, constitutes a useful digest of the statutory and case law. As regards the former, the work appears to contain every provision rela- ting to or connected with the subject, including even the orders made in December, 1869, transfer- ring business then pending. The cases are taken from a wide range of reports and include a con- siderable number cited from MSS. notes. The index is unusually full, combining both an analysis and index ; and, lastly, the type and paper are all that can be desired." 10 STEVENS & HAYNES, BELL YARD, TEMPLE BAR. In preparation, and to be published immediately new Rules are issued, CORNER'S CROWN PRACTICE: Being the Practice of the Crown Side of the Queen's Bench Division of the High Court of Justice ; with an Appendix of Rules, Forms, Scale of Costs and Allowances, &c. SECOND EDITION. By FREDERICK H. SHORT, of the Crown Office, and R. L. LOVELAND, Of tJie Inner Temple, Barrister-at-Laiu, Editor of Kelyng's Crown Cases," and " Hall's Essay on the Rights of the Crown in the Sea Shore." In one volume, 8vo., 1870, price i8j., cloth, THE LAW OF COPYRIGHT, In Works of Literature and Art ; including that of the Drama, Music, Engraving, Sculpture, Painting, Photography, and Ornamental and Useful Designs ; together with International and Foreign Copyright, with the Statutes relating thereto, and References to the English and American Decisions, By Walter Arthur COPINGER, of the Middle Temple, Barrister-at-Law, "A book that is certainly the most complete trea- tise upon the complex subject of copyright which has ever been published in England." — Atlienceum. "A work much needed, and which he has done exceedingly well." — American Laiv Review. " The book is a thoroughly good one." — The Bookseller. " We refer our readers to this capital book on Copyright." — The Publishers' Circular. In Svo., 1873, price 10s. 6d., cloth, THE BOVILL PATENT. A Collection of the Summings-up and Judgments in the Litigation under the Patent of 5th June, 1849, granted to the late G. li. BoviLL for Improvements in the Manufacture of Flour. With an Introduction and some Observations by W. W. Wynne, Attomey-at-Law. In 8vo., 1872, price 12s., cloth. An Exposition of the Laws of Marriage AND DiyORGE. As administered in the Court for Divorce and Matrimonial Causes, with the Method of Procedure in each kind of Suit ; Illustrated by Copious Notes of Cases. By Ernst Browning, of the Inner Temple, Barrister-at-Law, In 8vo., 1867, price i6j., cloth, THE CHAEITABLE TRUSTS ACTS, 1853, 1855, 1860 ; THE OHAEITY COMMISSIONEES JUEISDIOTION ACT, 1862; THE EOMAN CATHOLIC OHAEITIES ACTS : Together with a Collection of Statutes relating to or affecting Charities, including the Mortmain Acts, Notes of Cases from 1853 to the present time. Forms of Decla- rations of Trust, Conditions of Sale, and Conveyance of Charity Land, and a very copious Index, Second Edition. By Hugh Cooke and R. G. Harwood, of the Charity Commission. " Charities are so numerous, so many persons are directly or indirectly interested in them, they are so much abused, and there is such a growing desire to rectify those abuses and to call in the aid of the TAimmissioners for a more beneficial application of their fuads, tiiat we arc not Surprised to receive a second edition of a collection of all the statutes that regulate them, admirably annotated by two such competent editors as Messrs. Cooke and Harwood, whose official experience peculiarly qualifies them for the task." — Law Times. STEVENS & HAYNES, BELL YARD, TEMPLE BAR. 11 Now ready, in one volume, royal 8vo., 1877, price 305-., cloth, THE DOCTRINES AND PRINCIPLES OF THE LAW OF INJUNCTIONS. By WILLIAM JOYCE, OF Lincoln's inn, b a r ri ster-at-l a w. " Mr. Joyce, whose learned and exhaustive work on ' The Law and Practice of Injunctions,' has gained such a deservedly high reputation in the Profession, now brings out a valuable companion volume on the ' Doctrines and Principles ' of this important branch of the Law. In the present work the Law is enunciated in its absiract rather than its concrete form, as few cases as possible being cited ; while at the same time no statement of a principle is made unsupported by a decision, and for the most part the very language of the Courts has been adhered to. Written as it is by so acknowledged a master of his subject, and with the conscientious carefulness that might be expected from him, this work cannot fail to prove of the greatest assistance alike to the Student — who wants to grasp principles freed from their superincum- bent details — and to the Practitioner, who wants 10 refresh his memory on points of Doctrine amidbt the oppressive details of professional work." — Law Mlagazine and Revie-ju. BY THE SAME AUTHOR, In two volumes, royal 8vo., 1872, price 70J., cloth, THE LAW AND PRACTICE OF INJUNCTIONS. embracing ALL THE SUBJECTS IN WHICH COURTS OF EQUITY AND COMMON LAW HAVE JURISDICTION. By WILLIAM JOYCE, OF LINCOLN'S INN, B ARRI STER- AT-LAW. REVIEWS. "A work which aims at being so absolutely complete, as that of Mr. Joyce upon a subject which is of almost perpetual recurrence in the Courts, cannot fail to be a welcome offering to the profession and, doubtless, it will be well received and largely used, for it is as absolutely complete as it aims ai being This work is, therefore, eminently a work for the practitioner, being full of practical utility in every page, and every sentence, of it We have to congratulate the pro- fession on this new acquisition to a digest of the law, and the author on his production of a work of permanent utility and fame." — Law Magazine and Revieiv. '' From these remarks it will be sufficiently per- ceived what elaborate and painstaking industry, as well as legal knowledge and ability, has been necessary in the compilation of Mr. Joyce's work. No labour has been spared to save the practitioner labour, and no research has been omitted which could tend towards the elucidation and exemplifi- cation of the general principles of the Law and Practice of Injunctions." — Laiu Journal. " He does not attempt to go an inch beyond that for which he has express written authority ; he al- lows the cases to speak, and does not speak for them. " The work is something more than a treatise on the Law of Injunctions. It gives us the general law on almost every subject to which the process of injunction is applicable. Not only English, but American decisions are cited, the aggregate number being 3,500, and the statutes cited i6o, whilst the index is, we think, thfc most elaborate we have ever seen— occupying nearly 200 pages. The work is probably entirely exhaustive." — Laiv Times. " This work, considered either as to its matter or manner of execution, is no ordinary work. It is a complete and exhaustive treatise both as to the law and the practice of granting injunctions. It must supersede all other works on the subject. The terse statement of the practice will be found of incalculable value. We know of no book as suitable to supply a knowledge of the law of iniunctions to our common law friends as Mr. Joyce's exhaustive work. It is alike indispensable to members of the Co:iimon Law and Equity Bars. Mr. Joyce's great work would be a casket without a key unless accompanied by a eood index. His index is very full and well arranged. We feel tnat this work is destined to take its place as a standard text-book, and i/ie text-book on the particular subject of which it treats. The author deserves great credit for the very great labour bestowed upon it. The publishers, as usual, have acquitted themselves in a manner deserving of the high reputation they bear." — Canada Law Journal. " Mr. Joyce has produced not a treatise but a complete and compendious exposition of the Law and Practice of Injunctions both in equity and com- mon law. " Part III. is devoted to the practice of the Courts. Contains an amount of valuable and technical tfiatier nowliere else collected. 12 STEVENS & HAYNES, BELL YAKD, TEMPLE BAR, In one volume, royal 8vo., 1869, price 30J., cloth, CASES & OPINIONS ON CONSTITUTIONAL LAW, AND VARIOUS POINTS OF ENGLISH JURISPRUDENCE. Collected and Digested from Official Documents and other Sources ; with Notes. By William Forsyth, M.A., M.P., Q.C, Standing Counsel to the Secretary of State in Council of India, Author of " Hortensius," " History of Trial by Jury," •' Life of Cicero," etc., late Fellow of Trinity College, Cambridge. From the CONTEMPORARY REVIEW. " We cannot but regard with interest a book which, within moderate compass, presents us with the opinions or resj>ciiisa of such lawyers and states- men as Somers, Holt, Hardwicke, Mansfield, and, to come down to our own day, Lyndhurst, Abinger, Denman, Cranworth, Campbell, St. Leonards, Westbury, Chelmsford, Cockburn, Cairns, and the present Lord Chancellor Hatherley. At the end of each chapter of the 'Cases and Opinions,' Mr. Forsyth has added notes of his own, cor .fining a most'excellent summary of all the law bearing on that branch of his subject to which the 'Opinions' refer. . . . Our space precludes us from dwelling upon the contents of this work at any greater length, but we think we have said enough to show that it is worthy of a place on the book-shelves of our statesmen, and all who take an interest in con- stitutional, or rather, national and colonial ques- tions." From the IjAW MAGAZINE and LAW REVIEW. "Mr. Forsyth has largely and beneficially added to our legal stores. H is work may be regarded as in some sense a continuation of ' Chalmers's Opinions of Eminent Lawyers.' . . . The constitutional relations between England and her colonies are becoming every day of more importance. The work of Mr. Forsyth will do more to make these relations perfectly clear than any which has yet appeared. Henceforth it will be the standard work of reference in a variety of questions which are constantly presenting themselves for solution both here and in our colonies. . . . Questions of colonial law by no means occupy an exclusive share of the volume. . . . Among other questions on which 'opinions' are given, and of which careful sum- maries and generalisations have been added by Mr. Forsyth, are those relating to vice-admiralty jurisdiction and piracy : the prerogatives of the Crown in relation to treasure trove, land in the colonies, mines, cession of territory, &c. ; the power of courts-martial, extra-territorial jurisdiction, alle- giance, the lex loci and the lex fori, extradition, and appeals from the colonies. The volume bears marks of extreme care and regard to accuracy, and is in every respect a valuable contribution to consti- tutional law." From the LAW TIMES, "This one volume of 560 pages or thereabouts is a perfect storehouse of law not readily to be found elsewhere, and the more useful because it is not abstract law, but the application of principles to particular cases. Mr. Forsyth's plan is that of classification. He collects in separate chapters a variety of opinions bearing upon separate branches of the law. Thus, the first chapter is devoted to cases on the common law, and the law applicable to the colonies ; the second to the ecclesiastical law relating to the colonies ; the third to the powers and duties, civil and criminal liabilities, of governors of colonies ; the next to vice-admiralty jurisdiction and piracy ; the fifth to certain prerogatives of the Crown : such as lands in the colonies, grants, escheats, mines, treasure trove, royal fish, felon's goods, writ ne exeat regno, proclamation, cession of territory, and creation of courts of justice ; the sixth chapter contains opinions on martial law and courts-martial ; the seventh on extra-territorial juris- diction; the eighth on the lex loci and lex fori; the ninth on allegiance and aliens ; and then suc- cessively on extradition ; on appeals from the colo- nies ; on the revocatisn of charters ; on the Channel Islands ; on the nationality of a ship, and other matters relating to ships ; on the power of the Crown to grant exclusive rights of trade ; on writs of habeas corpus ; on certain points relating to the criminal law ; and lastly, on miscellaneo'js subjects, such as the declaration of war before hostilities ; on the right of war, booty and prize, and on the grant of a marriage licence. . . . This is a book to be read, and therefore we recommend it not to all lawyeis only, but to every law student. The editor's own notes are not the least valuable portion of the volume." IHE REVISED EDITION OF THE STATUTES. PREPARED UNDER THE DIRECTION OF THE STATUTE LAW COMMITTEE, AND PUBLISHED BY THE AUTHORITY OF HER MAJESTY'S GOVERNMENT. £ s. Volume I.— Henry III. to James II., 1235-1685 . i i ^^ 2.— Will & Mary to 10 Geo. IIL, 1688-1770 . i o ^^ 3.— II Geo. III. to 41 Geo. III., 1700-1800 . o 17 ^^ 4.— 41 Geo. III. to 51 Geo. III., 1801-1811 . o 18 ,, 5.— 52 Geo. HI. to 4 Geo. IV., 1812-1823 6.— 5 Geo. IV. to I & 2 WiU. IV., 1824-1831 7._2 & 3 Will. IV. to 6 & 7 Will IV., 1831-1836 8._7 Will. IV. & I Vict, to 5 & 6 Vict., 1837-1842 ,, 9, -6 & 7 Vict, to 9 & 10 Vict., 1843-1846 ., 10.— ID & II Vict, to 13 & 14 Vict., 1847-1850 ,, II.— 14 & m Vict, to 16 & 17 Vict., 1851-1853 ,, 12. — 17 & 18 Vict, to 19 & 20 Vict., 1854-1856 ,, 13.— 20 Vict to 24 & 25 Vict., 1857-1861 ,, 14.— 25 & 26 Vict, to 28 & 29 Vict, 1862-1865 CHRONOLOGICAL TABLE of and INDEX to the STATUTES, to the end of the Session of 1877. Fourth Edition, imperial 8vo., £1 gj-., cloth. d. o cloth, o o o o o STEVENS & HAYNES, BEU YARD, TEMPLE BAR. 13 In 8vo., 1877, price Twenty-five Shillings, cloth, THE LAW OF COMPENSATION FOR LANDS, HOUSES, &c.. Under the Lands Clauses, Railways Clauses Consolidation and Metropolitan Acts, THE ARTIZANS & LABORERS' DWELLINGS IMPROVEMENT ACT, 1875. WITH A FULL COLLECTION OF FORMS AND PRECEDENTS, jpourt]^ lEfiitton, ' Much enlarged, with many additional Forms, including Precedents of Bills of Costs. By eyre LLOYD, of the Inner Temple, Barrister-at-Law. " A fourth edition of Mr. Lloyd's valuable treatise has Just been published. Few branches of the la7u affect so many and such important interests as that which £iz/es to private individuals compensation for property comjfiitlsorilv ta/cen for the purpose of public itnprovejnents. The questions which arise under the different Acts of Parliament now i?i force are very manerons and dij)icji/t, and a collection of decided Cases epitomised and well arranged, as they are in Mr. Lloyd's work, caJifiot fail to be a ivelcojne addition to the library of all ivho are interested in landed property, wliether as owners, land agents, public officers or solicitors." — Midlanij Counties Herald. " It is only a {e.vi months since we reviewed the last edition of this useful work. Mr. Lloyd has, in the present edition, added the cases which have since been decided, and has given a complete set of forms under the Artisans' and Labourers' Dwellings Improvement Act, 1875. The recent cases appear to have been carefully collected, the only omission we have discovered being Re Milnes (24 W. R. 98), which should have been mentioned under section 69 of the Lands Clauses Act. We may add that the type and general appearance of the volume are admirable." — Solicitors' fournal. " It is with much gratification that we have to express our unhesitating opinion that Mr. Lloyd's treatise will prove thoroughly satisfactory to the profession, and to the public at large. Thoroughly satisfactory it appears to us in every point of view — comprehensive in its scope, exhaustive in its treatment, sound in its exposition." — Irish Law Times. " In providing the legal profession with a book which contains the decisions of tits Courts of Law and Fguity upon the various statutes relating to the Law of Cotnpejisation, Mr. Lyre Lloyd has lo7ig since left all competitors in the distance, a?id his book vmy now be considered the standard work upon the subject. '1 he plati of Mr. Lloyd's book is generally kno-uni, and its lucidity is appreciated ; the present quite fulfils all the pro7nises of the preceding editions, and contains in addition to other matter a com- plete set of Jortns under the Artizans and L abourers Act, 1875, and specimens of Bills of Costs, which will be found a novel featu7-e, extrejnely useful to legal practitiofters." — Justice of the Peace. " The work is one of great value. It deals with j of the compensation. All the statutes bearing on a complicated and difficult branch of the law, and it deals with it exhaustively. It is not merely a com- pilation or collection of the statutes bearing on the subject, with occasional notes and references. Rather it may be described as a comprehensive treatise on, and digest of, the law relating to the compulsory acquisition and purchase of land by public companies and municipal and other local authorities, and the different modes of assessment the subject have been collated, all the law on the subject collected, and the decisions conveniently arranged. With this comprehensiveness of scope is united a clear statement of principles, and prac- tical handling of the points which are likely to be contested, and especially of those in which the decisions are opposed or differently understood." — Local Government Chronicle. In 8vo., 1875, price 12s., cloth, THE LAW OF FIXTURES. Third Edition, Including the Law under the AGRICULTURAL HOLDINGS ACT, 1875, Incorporating the principal American Decisions, and generally bringing the law down to the present time. By ARCHIBALD BROWN, MA. Edin. and Oxon, and B.C.L. Oxon, OF THE MIDDLE TEMPLE, BARRISTER-AT-LAVV. " The decisions given since the second edition of this work was published in the important cases of £jt: parte Daglish, hi re Wilde, and Ex parte Barclay, in re Joyce, and several other further decisions of the Courts on the Law of Fixtures, have rendered a third edition desirable. The author has taken the opportunity to recast the general form of his treatise. . . . We have already adverted to the recent cases of Ex parte Daglish, in re Wilde, and Ex parte Barclay, in re Joyce. The author treats of them at some length ; and the cpnclusica at which he arrives is very important. and claims the attention of legal draftsmen and solicitors. We have touched on the principal features of tiiis new edition, and we have not sjiace for further remarks on the book itself: but we may observe that the particular circumstances of the cases cited arc in all instances sufficiently detailed to make the principle of law clear ; and though very many of the principles given are in the very words of the judges, at the same time the author has not spared to deduce his own observations, and the treatise is commend- able as well for originality as for laboriousness." — Law Journal. li STEVENS & HAYNES, BELL YARD, TEMPLE BAS. In one thick volume, 8vo., 1869, price 32^., cloth, THE LAW OF RAILWAY COMPANIES. Comprising the Companies Clauses, the Lands Clauses, the Railways Clauses Consoli- dation Acts, the Railway Companies Act, 1867, and the Regulation of Railways Act, 186S ; with Notes of Cases on all the Sections, brought down to the end of the year 186S ; together with an Appendix giving all the other material Acts relating to Railways, and the Standing Orders of the Houses of Lords and Commons ; and a copious Index. By IIenry Godefroi, of Lincoln's Inn, and John Shortt, of the Middle Temple, Barristers-at-Law. " The title of this book is the best possible | comes a mass of matter relating to the voluntary explanation of its contents. Here we have all the statutes affecting Railway Companies, with the standing orders of Parliament, in a volume exqui- sitely printed, and of most convenient size and form. We have also, what in elTect to the prac- titioner is a complete manual of reference of all the decided cases on Railway Law, together with an index of so copious and accurate a nature, as to render the discovery of every section and every authority easy in the highest degree. . . . We find pages of authorities on ' transfer of shares,' ' calls,' 'forfeiture of shares,' 'jci'. _/«.,'' Lloyd's bonds,' ' contracts by companies,' and 'dividends.' Then and compulsory acquisition of lands by Railway Companies, while the ' compensation' cases stretch over some fifty pages. So also under the third statute, there are a dozen pages on the powers and duties of Railway Companies in the construction of their works, while the liability of the Companies as carriers of passengers and goods is also elucidated in the most elaborate style. The ' Rating of Rail- ways ' adds several pages of authorities. . . . We believe that we have said enough to show that this book will prove to be of pre-eminent value to prac- titioners, both before Parliamentary committees and in the Courts of Law and Equity." — Law Journal. In 8vo., price 2s. 6d., MORIARTY ON PERSONATION AND DISPUTED IDENTITY AND THEIR TESTS. In a handy volume, crown 8vo., 1870, price loj-. 6d., cloth, THE LAW OF SALVAGE, As administered in the High Court of Admiralty and the County Courts ; with the Principal Authorities, English and American, brought down to the present time ; and an Appendix, containing Statutes, Forms, Table of Fees, etc. By Edwyn Jones, of Gray's Inn, Barrister-at-Law. "This book will be of infinite service to lawyers practising in the maritime law courts and to those engaged in shipping. In short, INIr. Jones's book is a complete guide, and is full of information upon all phases of the subject, tersely and clearly written. It will be quite as useful to, as it is as much needed by, the American lawyer as the F-nglish, because the salvage laws of America and England are much alike, and Mr. Jones makes constant reference to American authorities. The book is all the more welcome because the sub- ject upon which it treats is but little understood except by a favoured few. Now, however, if in- terested people remain ignorant it is their own fault. ^Ir. Jones has treated a very compli- cated and difficult subject in a simple and con- cise manner, and his success is commensurate with his simplicity of style." — Liverpool Journal oj Comjuerce. " An admirable treatise on an important branch of jurisprudence is compiled by INIr. Edwyn Jones, of Gray's Inn, Barrister-at-Law, who, in a compact volume, gives us a very comprehensive statement of 'The Law of Salvage,' as administered in the High Court of Admiralty and the County Courts ; with the principal authorities, English and American, brought down to the present time, and an Appen- dix containing statutes, forms, tables of fees. &c. Mr. Jones has consulted a wide range of cases, and systematised with much skill and clearness the leading principles deducible from numerous judg- ments and precedents, both here and in the United States. His work is likely to become a text-book on the law in question." — Daily N'ews. In 8vo., 1867, price is., sewed, LLOYD'S BONDS: THEIR NATURE AND USES. By Henry Jefferd Tarrant, of the Middle Temple, Barrister-at-Law. In 8vo., 1870, price Ts. 6d., clotli, THE HISTORY OF THE LAW OF TENURES OF LAND IN ENGLAND AND IRELAND. By W, F. FiNLASON, of the Middle Temple, BarrisLer-at-Law. " Mr. W. F. Finlason has done good service in publishing a concise, well-written history of the law of tenures ol land in Enzland and Ireland, with particular reference to inheritable tenancy, lease- hold tenure, tenancy at will, and tenant right. Confining himself to the facts of legal history, he has collected and presented, in an admirably com- pact form, all the really useful information it con- tains. " — Observer. J STEVENS & HAYNES, BELL YARD, TEMPLE BAR. 15 In 8z'o., !%']'], price "js,, cloth, THE SUCCESSION LAWS OF CHRISTIAN COUNTRIES, WITH SPECIAL REFERENCE TO THE LAW OF PRIMOGENITURE AS IT EXISTS IN ENGLAND. By EYRE LLOYD, B.A., OF THE INNER TEMPLE, B A R R I S T E R-A T-L A W. Atithor of '■'' The Law of Compensation under the Lands Clauses Consolidation Acts" &'C. " Mr. Lloyd has given us a very useful and compendious little digest of the laws of succession which exist at the present day in the principal States of both Europe and America ; and we should say it is a book which not only every lawyer, but every politician and statesman, would do well to add to his library." — Pall Mall Gazette. " Mr. Eyre Lloyd compresses into little more than eighty pages a considerable amount of matter both valuable and interesting; and his quotations from Diplomatic Reports by the present LordLytton, and other distinguished public servants, throw a picturesque light on a narrative much of which is necessarily dry reading. We can confidently recommend Mr. Eyre Lloyd's new work as one of great practical utility, if, indeed, it be not unique in our language, as a book of reference on Foreign Succession Laws." — LaTU Magazine and Reviczv. " Mr. Eyre Lloyd has composed a useful and interesting abstract of the laws on the subject of succes- sion to property in Christian countries, with especial reference to the law of primogeniture in England. He points out the error of supposing that there is a general compulsory law of primogeniture in this country. It is only in cases of intestacy that this rule is imposed ; and though entails upon the eldest son are to a limited extent permitted, the fact that landed property is sometimes retained in families for many generations is mainly due to the natural desire of Englishmen to perpetuate land in their families Mr. Lloyd also shows that the compulsory division of property involves all the evils without any of the advantages of a perpetual entail, inasmuch as it has a tendency to keep a constantly diminishing inherit- ance perpetually in the members of the same family." — Saturday Review. " This is a very useful little handy book on foreign succession laws. It contains in an epitomised form information which would have to be sought for through a great number of scattered authorities and foreign law treatises, and will be found of great value to the lawyer, the writer, and the political student." — Standard. In a handy volume, 1876, price 5^., cloth, RAILWAY PASSENGERS & RAILWAY COMPANIES: ^Ijeir 2Dutie0, Ifiliffljt^ anti ?liabtUt(e0* By LOUIS ARTHUR GOODEVE, of the Middle Temple, Barrister-at- Law. " Mr. Goodeve's little book is a concise epitome of the Acts, Bye-laws, and Cases relating to passengers and their personal luggage. It is clearly written, and the reader is able speedily enough to find any point upon which he desires to inform himself." — La-M Jourtial. " Mr. Goodeve has rendered a service to the public in making a digest of the law relating to railway passengers, including the respective duties, rights, and liabilities of the Companies on the one hand and passengers on the other, as laid down by the statutes and the decisions of the Superior Courts. The various points are treated in a clear yet concise manner ; and it is to be hoped that this little work will be widely studied so that people may know what are their rights, and take steps to maintain them." — Saturday Review. " Alter reading the volume with great interest, we can only say that it is clear, compact.and accurate. Passengers who want reliable information should consult this book." — Sheffield Post. By the same Author, in one volume royal 8vo., price 28^., THE LAW OF EVIDENCE, As Administered in England and applied to India,. New Edition, with Supplement ; containing the Indian Evidence Acts, the Oaths Acts, and the Code of Criminal Procedure so far as it relates to Evidence. By L. A. Goodeve, of the Middle Temple, Barrister-at-Law, late Assistant Secretary to the Government of Bengal (Legislative Department). *** The Supplement may be had separately, price 7^. dd. 16 STEVENS & HAYNES, BELL YARD, TEMPLE BAE. THE LAW OF CORPORATIONS. In one volume of One Thousand Pages, royal 8vo., 1877, price 42^., cloth, A TREATISE ON THE DOCTRINE OF ULTRA VIRES: BEING An Investigation of the Principles which Limit the Capacities, Powers, and Liabilities of ©orpo rations, AND MORE ESPECIALLY OF JOINT STOCK COMPANIES. SECOND EDITION. By SEWARD BRICE, M.A., LL.D., London, 0/ the Inner Ttuiplc, Barristcr-at- Laiv. REVIEWS. " Despite its unpromising ami cabalistic title, and tJie technical nature of its subject, it kets so recomincndc'd itself to tlie profession that a second edition is called for ivithin three years frojn the first publication ; and to this call Mr. Br ice has responded zuith the present volume, the development of which in excess of its predecessor is remarkable even in the annnls of law books. Sixteen hundred new cases have been introduced, and, instead of five hundred pages octazio, the treatise noiu occupies a thousand very much larger pages. This increase in hilk is partly due to the incorporation 7vith the English law on tlu subject of the more important A}ne}-ican and Colonial doctrines and decisions — a course which we think Mr. Brice 7vise in adopting, since the judgments of American tribunals are constatttly becoming more frequently quoted and 7nore respectfully considered in our own courts, particularly on those novel and abstruse points of law for which it is difficult to find direct authority in English reports. In the present speculative tijnes, anything relating to Joint-Stock Copnpanies is of public importance, and the points on 7vhic/t the constitution and operation of these bodies are affected by the doctrifte of Ultra Vires are just those wliich are mnst material to tlie interests of the shareholders and of the cotnmunity at large. Some of the tnuch disputed qtiestions in regard to cor/orations, on which legal opinion is still divided, are particularly 7uell treated. Thus with reference to the atcthority claimed by the Courts to restrain corporations or individuals Jrom applying to Parliament for fresh powers in breach of tJieir express agreejnents or in derogation of private rights, Mr. Brice most elaborately and ably reviews the cottflicti>ig decuions on this apparent interference with the rights of the subject, which threatened at one time to bring tJie Legislature and the Courts into a collision similar to that which followed on the well-knoivn case of Ashby v. White Another very difficult point on which Mr. Brice' s book affords full and valuable information is as to the liability of Co7npnnies on contracts entered into before tlieir format ion by tlie promoters, and subsequently ratified oradopted by the Company, and as to tlie claims of frromoters themselves for services rendered to tlie inchoate Company The chapter on the liabilities of corporations ex delicto for fraud and otlier torts cotnmiited by their agents within tlie region of their authority seems to us remarkably well done, reviewing as it does all the lateit and somewhat contradictory decisions on the point (hi the whole, we consider Mr. Brice's exhaustive ivork a valuable addition to tlie literature of the profession. — Saturday Review. " The doctrine which forms the subject of Mr. Seward Brice's elaborate and exhaustive work is a remarkable instance of rapid growth in modern Jurisprudence. His book, indeed, now almost con- stitutes a Digest of the Law of Great I'ritan and her Colonies and of the United States on the Law of Corporations — a subject vast enough at home, but even more so beyond the Atlantic, where Cor- porations are so numerous and so powerful. Mr. Seward Brice relates that he has embodied a refer- ence in the present edition to about i,6oo new cases, and expresses the hope that he has at least referred to ' the chief cases.' We should think there can be few, even of the P'orcign Judgments and Dicta, which have not found their way into his pages. The question what is and what is not Ultra Virei is one of very great importance in commercial countries like Great Britain and the United States. Mr. .Seward Brico has done a great service to the cau5e of Comparative Jurisprudence by his new recension of what was from the first a unique text- book on the Law of Corporations. He has gone far towards effecting a Digest of that Law in its relation to the Doctrine of Ultra Vires, and the second edition of his most careful and comprehen- sive work may be commended with equal confidence to the English, the American, and the Colonial Practitioner, as well as to the Scientific Jurist." — Law Magazine and Review. " It is the law of Corporations that Mr. Brice treats of (and treats of more fully, and at the same time more scientilically, than any work with which we are acquainted) not the law of principal and agent ; and Mr. Brice does not do his book justice by giving it so vague a title." — Law Journal. " A guide of very great value. Much information on a difficult and unattractive subject has been collected and arranged in a manner which will be of great assistance to the seeker after the law on a point in\-olving the powers of a company." — Law jfournal. (Review of First lOdition.) "On this doctrine, first introduced in the Common Law Courts in East Anglian Railway Co. v. Eastern Counties Railway Co. Bkicr o» Ultra Vires may be read with advantage." — Judgment of Lord Justice Bramwell in the Case of Evershcd v. L. &• N. IV. Ry. Co. (L. R., 3 Q. B. Div. 141.) STEVENS & HAYNES, BELL YABD, TEMPLE BAB. 17 111 two volumes, royal 8vo,, 1875, price ^os., cloth, THK LAVvT RELATING TO SHIPMASTERS AND SEAMEN. THEIR APPOINTMENT, DUTIES, POWERS, RIGHTS, LIABILITIES AND REMEDIES. By JOSEPH KAY, Esq., M.A., Q.C., OF TRIN. COLL. CAMBRIDGE, AND OF THB NORTHERN CIRCUIT ; SOLICITOR-GENERAL OF THE COUNTY PALATINE OF DURHAM; ONE OF THE JUDGES OF THE COURT OF RECORD FOR THE HUNDRED OF SALFORD ; AND AUTHOR OF " THE SOCIAL CONDITION AND EDUCATION OF THK PEOPLE IN ENGLAND AND EUROPE." CONT PART I. — The Public Autho- rities, PART II.— The Appointment, Cer- tificates, ETC., OF the Master. PART III.— Duties and Respon- sibilities OF the Master, PART IV.— The Master's Duties and Powers with respect to the Cargo. PART v.— Bills of Lading. PART VI.— Stoppage in Tran- situ. PART VII.— When the Master may make the Owners liable upon his Personal Contracts. ENTS. PART VIII.— Hypothecation. PART IX.— The Crew. PART X.— Pilots. PART XI.— Passengers, PART XII.— Collisions. PART XIII.— Salvage. PARTXIV. — The Master's Remedies. PART XV. — The Master's Lia- bilities. APPENDIX. Forms, Rules, Regulations, &c. REVIEWS OF THE WORK. From the NAUTICAL MAGAZINE, July, 1875. "The law-books of the present day are mostly of two classes: the one written for lawyers, and only to be understood by them ; the other intended for the use of non-professional readers, and generally in the form of handy books. The first, in the majority of cases, is of some benefit, if looked upon merely as a compilation containing the most recent decisions on the subject ; whilst the second only aims, and not always with success, at popularising some particular branch of legal knowledge by the avoidance of technical phraseology. "It is rarely that we find a book fulfilling the requirements of both classes ; full and precise enough for the lawyer, and at the same time intelli- gible to the non-legal understanding. Yet the two volumes by Mr. Kay on the law relating to ship- masters and seamen "will, uie venture to say, be of equal service to the captain, tfie lawyer, and the Consul, in their respective capacities, and even of interest to the public generally, written as it is in a clear and interesting style, and treating of a subject of such vast importance as the rights and liabilities and relative duties of all, passengers included, who venture upon the ocean ; more than that, we think that any able-seaman might read that chapter on the crew with the certainty of acquiring a clearer notion of his own position on board ship. " We can make no charge of redundancy or omission against our author ; but if we were called upon to select any one out of the fifteen parts into which the two volumes are divided as being espe- cially valuable, we should not hesitate to choose that numbered three, and entitled ' The Voyage.' There the master will find a succinct and compen- dious statement of the law respecting his duties, general and particular, with regard to the ship and its freight from the moment when, on taking com- mand, he is bound to look to the seaworthiness of 18 STEVENS & EATNES, BELL TABD, TEMPLE BAB. THE LAW RELATING TO SHIPMASTERS AND SEAMEN. REVIEWS OF THE \NORK-contmued. the ship, and to the delivery of her log at the final port of destination. In Part IV. his duties are considered with respect to the cargo, this being a distinct side of his duplicate character, inasmuch as he is agent of the owner of the cargo just as much as the owner of the ship. "Next in order of position come ' Bills of Lading ' and ' Stoppage in Transitu.' We confess that on first perusal we were somewhat surprised to find the subject of the delivery of goods by the master given priority over that of bills of lading ; the logical sequence, however, of these matters was evidently sacrificed, and we think with advantage to the author's desire for unity in his above-mentioned chapters on 'The Voyage.' That this is so is evi- denced by the fact that after his seventh chapter on the latter subject he has left a blank chapter with the heading of the former and a reference a'lfe. ' The power of the master to bind the owner by his personal contracts,' 'Hypothecation,' and ' The Crew,' form the remainder of the contents of the first volume, of which we should be glad to have made more mention, but it is obviously impossible to criticize in detail a work in which the bare list of cited cases occupies forty-four pages. "The question of compulsory pilotage is full of dfficulties, which are well summed up by Mr. Kay. " In conclusion, we can heartily congratulate Mr. Kay upon his success. His work everywhere bears traces of a solicitude to avoid anything like an obtrusive display of his own powers at the ex- pense of the solid matter pertaining to the subject, whilst those observations which he permits himself to make are always of importance and to the point ; and in face of the legislation which must soon take place, whether beneficially or otherwise, we think his book, looking at it in other than a professional light, could scarcely have made its appearance at a more opportune moment." From the LIVERPOOL JOURNAL OP COMMERCE. work being enhanced by copious appendices and index, and by the quotation of a mass of authori- ties. . . . T/te work must be an invaluable one to theshipo^vner, shipmaster, or consul at a foreign port. The language is clear and simple, while the legal standing of the author is a sufficient guarantee that he writes with the requisite authority, and that the cases quoted by him are decisive as regards the points on which he touches." " ' The Law relating to Shipmasters and Seamen ' — such is the title of a voluminous and important work which has just been issued by Messrs. Stevens and Haynes, the eminent law publishers, of London. The author is Mr. Joseph Kay, Q.C., and while treating generally of the law relating to shipmasters and seamen, he refers more particularly to their ap- pointment, duties, rights, liabilities, and remedies. It consists of two large volumes, the text occupying nearly twelve hundred pages, and the value of the From the LAW JOURNAL. "The author tells us that for ten years he has been engaged upon it. . . . Two large volumes containing 1181 pages of text, 81 pages of appen- dices, 98 pages of index, and upwards of 1800 cited cases, attest the magnitude of the work designed and accomplished by Mr. Kay. "Mr. Kay says that he has 'endeavoured to compile a guide and reference book for masters, ship agents, and consuls.' He has been so modest as not to add lawyers to the list of his pupils ; but his work will, we think, be ruelcoined by lawyers who have to do with shipping transactions, almost as cordially as it undoubtedly will be by those who occzipy their business in the great waters. " In crown i2mo., 1876, price 12s., cloth, A T 11 E A T I S E ON THE LOCUS STANDI OF PETITIONERS AGAINST PRIVATE BILLS IN PARLIAMENT. TSIII^ID EHDITIOn^r. By JAMES MELLOR SMETHURST, Esq., of Trinity College, Cambridge, M.A., and of the Inner Temple, Bamstei-at-Law. In imperial 8vo., price 3^'. 6d., J^ DIGEST ENGLISH AND INDIAN DECISIONS, Eeported in Vol. I., Parts I. and n., of the INDIAN JUKIST, during the Year 1877. By EDMUND FULLER GRIFFIN, of Lincoln's Inn, Barrister-at-Law. STEVENS & HAYNES, BELL YARD, TEMPLE BAE. 19 In 8vo., 1876, price js. bd., cloih, ON THE COMPULSORY PUEOHASE of the UNDERTAKINaS OF COMPANIES BY COKPOEATIONS, And the practice in Relation to the Passage of Bills for Compulsory Purchase through Parliament. ' By J. H. Balfour Browne, of the Middle Temple, Barrister-at-Law ; Author of " The Law of Rating," " The Law of Usages and Customs," &c., &c. " This is a work of considerable importance to all Municipal Corporations, and it is hardly too much to say that every member of these bodies should have a copy by him for constant reference. Probably at no very distant date the property of all the existing gas and water companies will pass under municipal control, and therefore it is exceedingly desirable that the principles and conditions under which such transfers ought to be made should be clearly under- stood. This task is made easy by the present volume. The stimulus for the publication of such a work was given by the action of the Parliamentary Committee which last Session passed the preamble of the ' Stockton and Middlesborough Corporations Water Bill, 1876.' The volume accordingly con- tains a full report of the case as it was presented both by the promoters and opponents, and as this was the first time in which the principle of com- pulsory purchase was definitely recognised, there can be no doubt that it will long be regarded as a leading case. As a matter of course, many inci- dental points of interest arose during the progress of the case. Thus, besides the main question of compulsory purchase, and the question as to whether there was or was not any precedent for the Bill, the questions of water compensations, of appeals from one Committee to another, and other kindred sub- jects were discussed. These are all treated at length by the Author in the body of the work, which is thus a complete legal compendium on the large subject with which it so ably deals." In one volume, 8vo., 1875, P'"ice i8j., cloth, THE PRACTICE BEFORE THE RAILWAY COMMISSIONERS UNDEE THE KEGULATIOlf OP EAILWAYS ACTS, 1873 and 1874; With the Amended General Orders of the Commissioners, Schedule of Forms, and Table of Fees : together with the Law of Undue Preference, the Law of the Jurisdiction of the Railway Commissioners, Notes of their Decisions and Orders, Precedents of Forms of Applications, Answers and Replies ; and Appendices of Statutes and Cases. By J. H. BALFOUR BROWNE, OftJie Middle Temple, Barrister-at-Laiu, a}td Registrar to the Railway Commissioners. Mr. Browne's book is handy and convenient in 1 work of a man of capable legal attainments, and by form, and well arranged for the purposes of refer- official position intimate with his subject ; and we ence ; its treatment of the subject is fully and therefore think that it cannot fail to meet a real want carefully worked out : it is, so far as we have been and to pi-ove of service to the legal profession and able to test it, accurate and trustworthy. It is the | the public. — Law Magazine. In one thick volume, 8vo., 1875, price 25^-., cloth, THE PRINCIPLES OF THE LAW OF RATING OF HEREDITAMENTS in the OCCUPATION of COMPANIES. By J. H. BALFOUR BROWNE, Of the Middle Tetuple, Barrister-at-Law ; Registrar to the Railway Co7n7nissioners. "The tables and specimen valuations which are printed in an appendix to this volume, will be of great service to the parish authorities, and to the legal practitioners who may have to deal with the rating of those properties which are in the occupa- tion of Companies, and we congratulate Mr. Browne on the production of a clear and concise book of the system of Company Rating. There is no doubt that such a work is much needed, and we are sure that all those who are interested in, or have to do with public rating, will find it of great service. Much credit is therefore due to Mr. Browne for his able treatise — a work which his experience as Registrar of the Railway Commission peculiarly qualified him to undertake." — Law Magazine. In 8vo., 1875, price ']s.6d., cloth, THE LAW OF USAQES and CUSTOMS: ^ pcacttcal Hato %xuu By J. H. BALFOUR BROWNE, Of the Middle Temple, Barrister-at-Law ; Registrar to tiie Railway Cojnmissioners. "We look upon this treatise as a valuable addition to works written on the Science of Law." — Canada Law Journal. " As a tract upoii a very troublesome department of Law it is admirable — the principles laid down are sound, the illustrations are well chosen, and the decisions and dicta arc harmonised so far as possible, and distinguished when necessary." — Irish Law limes. "As a book of reference we know of none so comprehensive dealing with this particular branch of Common Law In this way the book is invaluable to the practitioner." — Law Magazine. d 2 20 STEVENS & HAYNES, BELL YABD, TEMPLE BAS. Now ready, in 8vo., 1878, price 6s., cloth. THE LAW KELATING TO CHAKITIES, Especially with Reference to the Validity and Construction of CHARITABLE BEQUESTS and CONVEYANCES. BY FEEDINAND M. WHITEFOED, of Lincoln's Inn, Barrister-at-Law. "The Law relating to Charities by F. M. Whiteford, contains a brief but clear exposition of the law relating to a class of bequests in which the intentions of donors are often frustrated by un- acquaintance with the Statutory provisions on the subject. Decisions in reported Cases occupy a large portion of the text, together with the ex- planations pertinent to them. The general tenor of Mr. Whiteford's work is that of a digest of Cases rather than a treatise, a feature, however, which will not diminish its usefulness for purposes of reference." — Law Magazine and Review. In Svo., 1872, price ^s. 6d., cloth, AN EPITOME AND ANALYSIS SAYIGNY'S TREATISE ON OBLIGATIONS IN ROMAN LAW. By AECHIBALD BROWN, M.A. Edin. and Oxon and B.C.L. Oxon, of the Middle Temple, Barrister-at-Law. " Mr. Archibald Brown deserves the thanks of all interested in the science of law, whether as a study or a practice, for his edition of Herr von Savigny's great work on 'Obligations.' Mr. Brown has undertaken a double task — the translation of his author, and the analysis of his author's matter. That he has succeeded in reducing the bulk of the original will be seen at a glance ; the French translation con-^isting of two volumes, with some five hundred pages apiece, as compared with Mr. Brown's thin volume of a hundred and fifty pages. At the same time the pith of Von Savigny's matter seems to be very successfully pre- served, nothing which might be useful to the English reader being apparently omitted. " The new edition of Savigny will, we hope, be extensively read and referred to by English lawyers. If it is not, it will not be the fault of the translator and epitomiser. Far less will it be the fault of Savigny himself, whose clear definitions and accu- rate tests are of great use to the legal practitioner." — Law Journal. THE ELEMENTS OP ROMAN LAW. In 216 pages 8vo., 1875, price loj., cloth, A CONCISE DIGEST OF THE INSTITUTES OF GAiUS AND JUSTINIAN, With copious References arranged in Parallel Columns, also Chronological and Analytical Tables, Lists 0/ Laws, &'c. ^c. Primarily designed for the Use of Students preparing for Examination at Oxford, Cambridge, and the Inns of Court. By SEYMOUR F. HARRIS, B.C.L., M.A., OP WORCESTER COLLEGE, OXhORD, AND THE INNER TEMPLE, BARKISTER-AT-LAW ; AUTHOR OF " UNIVERSITIES AND LEGAL EDUCATION." ' 'Mr. Harris's digest ought to have very great success among law students both in the Inns oj Court afid the Universities. His book gives evidence of praiseworthy accuracy and laborious condensation.^' — Law JOURNAL. " This book contains a summary in English of the elements of Roman Law as contained in the 7uorks of Cuius and Justinian, and is so arranged that the reader ca7i at once see what are the opinions of either of these two writers on each point. Frofti the very exact and accurate referetues to titles and sectio7is given he can at once refer to the original •writers. 'J he concise manner in which Mr. Harris has arranged his digest will render it most useful, not only to the students for whom it was originally zuritten, but also to those persons who, though tluy have not the time to wade through the larger treatises of Paste, Sanders, Ortolan, and others, yet desire to obtain some knozvledge of Roman Law." — Oxford and Cambridge Undergraduates' Journal. " Mr. Harris deserves the credit of leaving produced an epitome wJiich will be of service to those numerous students who have no time or sufficient ability to analyse the Lnstitutes for themselves'' — Law Times. WOKKS FOR LAW STUDENTS. 21 In one thick volume, 8vo., 1875, price 21s., cloth, ENGLISH CONSTITUTIONAL HISTORY. BY T. P. TASWELL-LANGMEAD, B.C.L., Of Lincoln's Inn, Barrister-at-Law, late Vinerian Scholar in the University of Oxford, and Tancred Student in Common Law. Extracts from some Reviews of this Work : — "We think Mr. Taswell-Langmead may be congratulated upon having compiled an elementary wrork of conspicuous merit," — Pall Mall Gazette. " It bears marks of great industry on the part of the compiler, and is most completely stocked with all the important facts in the Constitutional History of England, which are detailed with much conciseness and accuracy, . . . and is very full and clear." — Spectator. " For students of history we do not know any work which we could more thoroughly recommend." — Law Times. " It is a safe, careful, praiseworthy digest and manual of all constitutional history and law." — Globe. "For conciseness, comprehensiveness, and clearness, we do not know of a better modern book than Mr. Taswell Langmead's * English Constitutional History.' " — Notes and Queries. "The volume on English Constitutional History, by Mr. Taswell-Langmead, is exactly what such a history should he.^^—Stafidard. " As a text-book for students, we regard it as an exceptionally able and complete work." — Law fournal. " Mr. Taswell-Langmead has endeavoured in the present volume to bring together all the most prominent features in the Constitutional History of England, and explain their origin and development. It is possible to gain from a hundred pages of Mr. Lang- mead's work a knowledge of the growth and progress of the present system, which elsewhere could only be obtained in many volumes." — Lrish Law Times. "Mr. Taswell-Langmead has thoroughly grasped the bearings of his subject. It is, however, in dealing with that chief subject of constitutional history — parliamentary government — that the work exhibits its great superiority over its rivals." — Academy. 22 WORKS POR LAW STUDENTS. Fourth Edition, in 8vo., 1878, price 25J., cloth, THE PRINCIPLES OF EQUITY. ^lUcnDcti for rljc (Else of ^tudcntsf anti tlje i9cofe00ion. By EDMUND H. T. S N E L L, OF THE MrDDLE TEMPLE, BARRISTER-AT-LA\V. FOURTH EDITION. TO ■WHICH IS J^ID-JD^El-n AN EPITOME OF THE EQUITY PRACTICE. By ARCHIBALD BROWN, M.A. Edin. and Oxon., and B.C.L. Oxon., of the Middle Temple, Barrister-at-Law ; Author of "A New Law Dictionary," "An Analysis of Savigny on Obligations," and the "Law of Fixtures."' * * This Work has become a Standard Class-Book hi England, Ireland, India, a?id the Colonies. REVIEWS. "'Snell's Equity,' as this work is so familiarly called, is a work which is probably known to students of the law in all countries where the English language is spoken, and, as a matter of fact, no one who attempts the study of Equity, can obtain a really proper insight into the science without a perusal, sooner or later of this book. In 1868 the 'Principles ot Equity ' appeared for the first time. Ever since that date it has been the standard work on the subject. The Edition before us is the fourth that has appeared, and from the many additions and improvements that are embodied in it, it will, we are convinced, quite equal, if not increase, its hitherto well-deserved popularity. The present edition, unlike former ones, is divided into two BBoks. The first Book consists of the original ' Principles ' in form and style similar to the edition first published by Mr. Sneil, with the exception that some paragraphs have been entirely re-written and additions made to it, so as to bring it more in consonance with the existing state of ihe law. In its general character this part of the work is not much altered from former editions, as the many minor errors and deficiencies have been corrected, while the language used, and the contents of the book eenerally, have been worked up to the level of the new procedure introduced by the sweeping and important legislation which has been effected during the last five years. To enter into a discussion on the form, style, and method generally of this part of the new edition would be a needless labour, as the substance and language of former editions — now so well known — have been uniformly retained. The second Book, comprising an ' Epitome of the Equity Practice,' is an entirely new addition to the original work and emanates from the pen of Mr. Archibald Brown, B.C.L., of Oxford, and of the Middle Temple, B.irrister-at-Law, who has handled his subject in an eminently able and satisfactory manner. This ' Practice in Equity' embodies the whole procedure in its minutest details, and will, doubtless, be found most serviceable to practitioners as well as to students. We have no doubt that the labours of Mr. Brown will be most highly appreciated by the profession, as supplying a want that has now long been felt. As a matter of fact, this 'Equity Practice' is a concise, but at the same time comprehensive, summary of the whole of the Judicature Acts as far as procedure in the Chancery Division of the High Court is concerned, while, as may be naturally supposed, it likewise embraces the greater part of the practice in the three Common Law Divisions. The author commences with an explanation of the Courts, that is to say, the Original and Aipellate Courts — having an equity jurisdiction, and also of the jurisdiction itself. He then fully explains the mode of procedure, from the issue of the writ to the final judgment or order. Who should be made parties to an action ; how the pleadings should be drawn, with the times for delivery, S:c. ; the nature of the evidence, and the form which it should take ; the different modes of trial, and matters relating lo the discontinuance of actions, are all clearly and ably explained; while other matters relating to Judgment, Execution, Proceedings in Chambers, motions and summonses, are fully gone into. Leaving out of question the use which this part of the work will be to the practitioner, there can be no doubt that to students the whole book will be as indispensable in the future as it has been in the past ; and, as regards the second part, namely that portion of the work which relates to Equity Practice, we have no doubt that a proper knowledge of it will enable a student to successfully pass any examinations in the subject, whether it be at the Universities, at the Inns of Court, or in the Hall of the Incorporated Law Society."— C.;i/<'^'2' «'"^ Cattibridge Under graduate's Journal. " We know of no better introduction to ihe Principles of Equity, ^^ — Canada Law Journal. " It behoves every practitioner to know as much I and student, will find it a useful, and especially a as possible of equity with as little expense of time | safe guide in what it professes to teach." — Irish as possible, and for this purpose we know of no i Lavj Tttnei. better work than Mr. SncH's. Counsel, attorney, | WORKS FOR LAW STUDENTS. 23 In one volume, 8vo., 1874, P"ce 18s., cloth, PRINCIPLES OF CONVEYANCING. AN ELEMENTARY WORK FOR THE USE OF STUDENTS. By Henry C. Deane, of Lincoln's Inn, Barrister-at-Law, sometime Lecturer to the Incorporated Law Society of the United Kingdom. " Mr. Deane is one of the Lecturers of the Incorporated Law Society, and in his elementary work intended for the use of students, he embodies some lectures given at the hall of that society. It would weary our readers to take them over the ground necessarily covered by Mr. Deane. The first part is devoted to Corporeal Hereditaments, and the second to Conveyancing. The latter is prefaced by a very interesting "History of Conveyancing," and for practical purposes the chapter (Ch. 2, Part II.) on Conditions of Sale is decidedly valuable. The most recent legislation is handled by Mr. Deane in con- nexion with the old law, the Judicature Act and the Vendor and Purchaser Act both being considered in'this chapter on Conditions of Sale. We might make some interesting quotations, but the work is one which those engaged in conveyancing should purchase and put on their shelves, and welcome it with the recommendations which we have already recorded." — Law Times. " We hope to see this book, like Shell's Equity, a standard class-book in all Law Schools where English law is taught." — Canada Law Journal. "This is, as its author states, a purely elementary work. It may indeed be called the A B C of con- veyancing. In the clearest and simplest language the student will find an outline, firstly, of the various forms of ownership in land, and, secondly, of the ordinary modes of conveyances used in transferring such land from one person to another. The second portion is founded upon lectures that were delivered by the author at the Incorporated Law Society, and is accordingly very clear and practical. The whole work is very well and thoroughly done. Mr. Deane has, we believe, succeeded in writing the very .simplest work ever published on the abstruse subject of conveyancing ; and has by his language and illustrations, explained points of law in a way that cannot be misunderstood. For this reason, and as being the most elementary work combining the elements of real property law with the principles of practical conveyancing, we can heartily recommend it as a first book on the subject of which it treats. As such we should think it would be both worthy and suitable to be named as one of the books that are required to be read as a preparation for the various Law Examinations." — T/ie Law, " We can confidently recommend Mr. Deane's work on the ' Principles of Conveyancing.' It is not exhaustive, and does not pretend to go fully into the laws of trusts, powers, or remainders, but it fully explains the several different legal and equitable estates in land and the tenure of land, and the modes of alienation used in conveyances inter vivos anA by will. It also fully explains the meaning and value of the several parts of the conveyances, the cove- nants, conditions, provisoes, exceptions and reser- vations, habendums, and the proper form of recitals, &c., &c. — a point frequently neglected in other and more pretentious treatises. It contains excellent chapters on purchase deeds, leases, mortgages, settlements, and wills ; and, in addition, Mr. Deane treats of conditions of sale most fully and clearly. It seems essentially the book for young convey- ancers, and will, probably, in many cases supplant Williams. It is, in fact, a modern adaptation of Mr. Watkin's book on conveyancing, and is fully equal to its prototype."— /?-/j.4 Law Times. "A general review of the scope of Mr. Deane's volume and a perusal of several of its chapters have brought us to the conclusion that, though its contents are purely elementary, and it contains nothing which is not familiar to the practitioner, it may be extremely useful to students, and especially to those gentlemen who are candidates for the various legal examinations. There are so many questions set now on case law that they would do well to peruse this treatise of Mr. Deane's, and use it in conjunction with a book' of questions and answers. They will find a considerable amount of equity case law, especially in the second part of Mr. Deane's book, which comprises in substance some lectures delivered by the author at the Law Institution." — Law ypurnal. " As Mr. Deane's work is addressed to the rising generation of conveyancers, ' students entering upon the difficulties of real property law,' it may be presumed that he does not fear the immediate anni- hilation of that noble science in its traditional forms by any legislative changes. The first part of the volume is composed of a series of chapters on cor- poreal hereditaments, and the second part of some lectures on conveyancing recently delivered by the author at the Law Institution. It is enough to say that Mr. Deane writes clearly and to the point." — Saturday Revievj. " Of all the elementary works on the Principles of Conveyancing which it has been our fortuure to read, it is our opinion Mr. Deane's work is the clearest and best." — Sheffield Post. 24 WORKS FOE LAW STUDENTS, In one volume, 8vo., 1876, price 20s., cloth, PRINCIPLES OF THE COMMON LAW. INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. By JOHN INDERMAUR, Solicitor, AUTHOR OF "A MANUAL OF THE PRACTICE OF THE SUPREME COURT," "epitomes of LEADING CASES," AND OTHER WORKS. " TAis work, the author tells us in his Preface, is written mainly with a view to the examinations of the Incorporated Law Society ; but we think it is likely to attain a wider usefulness. It seems, so far as we can judge from the parts we have examined, to be a careful and clear outline of the principles of the common law. It is very readable ; and not onlv students, but many practitiofiers and the public might benefit by a perusal oj its pages." — Solicitors' Journal. " Mr. Indermaur has very clear notions of what a law student should be taught to enable him to pass the examinations of the Incorporated Law Society. In this, his. last work, the law is stated carefully and accurately, and the book will probably prove ax;ceptable to students." — Law Times. " Mr. Indermaur's book will doubtless be found a useful assistant in the legal pupil room. The statements of the law are, as far as they go, accurate, and have been skilfully reduced to the level of learners. Mr. Indermaur possesses one great merit of an instructor — he is able to bring out the salient points on wide subjects in a telling manner." — Law Journal. •' Mr. Indermaur has acquired a deservedly high reputation as a writer of convenient epitomes and compendiums of various branches of the Law for the use of students. Within the limits which the author has assigned to himself, he has certainly given proof of praiseworthy industry, accuracy, and clearness of exposition, which cannot fail to be of the greatest advantage to the law student. The practising solicitor will also find this a very useful compendium. Care has evidently been taken to note the latest decisions on important points of law. A full and well-constructed Index supplies every facility for ready reference." — Law Magazine. " The works of Mr. Indermaur are the necessary outcome of the existing system of legal education, and are certainly admirably adapted to the needs of students. We observe that, in the preface to his Principles of the Common Law, the author announces that he had a collateral object in view — viz., to produce a work useful to the practitioner. To sessional practitioners, and those whose libraries are limited, we have no doubt that this work will prove a useful acquisition ; but its special merit appears to us to be that it most adequately achieves that which was the author's principal object — namely, to supply a book upon the subject of Common Law which, whilst being elementary and readable on the one hand, yet also goes sufficiently into the subject to prepare students for examination. The author, who possesses a well-established reputation as a law tutor, and as an able and indefatigable writer of books for students, certainly knows precisely just what it is that students require, and that desideratum he has fully supplied. We might suppose that the work itself was the didactic embodiment of the prize answers to a voluminous code of examination questions on the subject of common law ; and presenting, as it does, a lucid, careful, and accurate outline of the elementary principles applicable to contracts, torts, evidence, and damages, such a work cannot fail to prove abundantly useful to the student." — Irish Law Tinus. WORKS FOR LAW STUDENTS. 25 In 8vo., 1878, price los., cloth. A MANUAL OF THE PRACTICE OF THE SUPREME COURT OF JUDICATURE, In the Queen's Bench, Common Pleas, Exchequer, and Chancery Divisions. Intended for the use of Students. By John Indermaur, Solicitor. " Intended for the use of students, this book is executed with that accurate knowledge and care which distinguish Mr. Indermaur. It treats carefully of the steps to be taken iu the several divisions, and in the appendix is given a table of some of the principal times of proceedings. Not only the student but the practitioner will find this little volume of use." — Lam Times. " Mr. Indermaur's treatise is addressed to the attention of students ; and what student but knows that the name of that author is a guarantee of the utility of any work so presented? His ' Manual of Practice,' while avoiding unnecessary details, furnishes a concise but complete elementary view of the procedure in the Chancery and Common Law Divisions of the High Court of Justice under the English Judicature Acts; and certainly any examination on the subject must be very unreasonable that a student who has mastered Mr. Indermaur's perspicuous reading on the practice could fail to pass." — /ris/i Law Times. Fourth Edition, in 8vo., 1877, price 6j., cloth, AH EPITOME OF LEADING COMMON LAW CASES; WITH SOME SHORT NOTES THEREON. Chiefly intended as a Guide to "Smith's Leading Cases." By John Indermaur, Solicitor (Clifford's Inn Prizeman, Michaelmas Term, 1872). "We have received the third edition of the 'Epitome of Leading Common Law Cases,' by Mr. Inder- maur, Solicitor. The first edition of this work was published in February, 1873, the secondin April, 1874, and now we have a third edition dated September, 1875. No better proof of the value of this book can be fur- nished than the fact that in less than three years it has reached a third edition." — Law Journal. _ Third Edition, in 8vo., 1877, price 6s., cloth, AN EPITOME OF LEADING GONVEYANOING AND EQUITY GASES; WITH SOME SHORT NOTES THEREON, FOR THE USE OF STUDENTS. By John Indermaur, Solicitor, Author of " An Epitome of Leading Common Law Cases." "We have received the second edition of Mr. Indermaur's very useful Epitome of Leading Convey- ancing and Equity Cases. The work is very well done." — Law Times. " The Epitome well deserves the continued patronage of the class — Students — for whom it is especially intended. Mr. Indermaur will soon be known as the ' Students' Friend.'" — Canada Law Journal. Second Edition, in 8vo. , 1876, price 4?., cloth, SELF -PREPARATION FOR THE FINAL EXAMINATION. CONTAINING A COMPLETE COURSE OF STUDY, WITH STATUTES, CASES, AND QUESTIONS ; And intended for the use of those Articled Clerks who read by themselves. By John Indermaur, Solicitor. " In this edition Mr. Indermaur extends his counsels to the whole period from the intermediate examination to the final. His advice is practical and sensible : and if the course of study he recommends is intelligently followed, the articled clerk will have laid in a store of legal knowledge more than sufficient to carry him through the final examination." — Solicitors' Journal. " This book contains recommendations as to how a complete course of study for the above examination should be carried out, with reference to the particular books to be read seriatim. We need only remark that it is essential for a student to be set on the right tack in his reading, and that any one of ordinary ability, who follows the course set out by Mr. Indermaur, ought to pass with great credit." — Law Journal. In 8vo., 1875, price 6s., cloth, THE STUDENT'S GUIDE TO THE JUDICATURE ACTS, AND THE RULES THEREUNDER : Being a book of Questions and Answers intended for the use of Law Students. By John Indermaur, Solicitor. "As the result of the well-advised method adopted by Mr. Indermaur, we have a Guide which will imquestionably be found most useful, not only to Students and Teachers for the purpose of examination, but to anyone desirous of acquiring a first acquaintanceship with the new system." — Irish Law Times. 26 WORKS FOR LAW STUDENTS. In one volume, 8vo., 1874, price 2 i.e., cloth, A NEW LAW DICTIONARY, AND IFnstitutc of tije ijoijole Hato ; EMBRACING FRENCH AND LATIN TERMS, AND REFERENCES TO THE AUTHORITIES, CASES, AND STATUTES. By ARCHIBALD BROWN, M.A. Edin. and Oxen., and B.C.L. Oxon., of the Middle Temple, Banister-at-Law; Author of the " Law of Fixtures," " Analysis of Savigny's Obligations in Roman Law," &c. " Mr. Brown has succeeded in the first essential, that of brevity. He has compressed into a 7uondcrfnlly small compass a great deal of matter. Our im- pression is that the work has been carefully executed.^'' — SOLICITORS' Journal. "This work, laborious and difficult as it was, has been admirably carried out, and the work is really what it professes to be, a complete compendium. An index to a dictionary is a novelty, but from the excep- tional nature of the contents an index was likely to be most useful, and accordingly Mr. Brown has prefixed to the book a co- pious index by which a student can at once turn to the main body of the work and obtain the information he requires. Autho- rities and cases are abundantly cited, and Mr. Brown can claim with justice to call his book an institute of the whole law." — Standard. " In a modest preface Mr. Brown intro- duces us to a rather ambitious work. He has endeavoured to compress into less than four hundred pages the whole law of Eng- land, and has evidently bestowed much pains on the execution of the task. He does not, however, aim at anything higher than rendering a service to students prepar- ing for the Bar or for the lower branch of the profession, and there can be no doubt that he has produced a book of reference which will be useful to the class he has had in view. Mr. Brown has perhaps done about as much as any one, not a rare genius, could do, and his Dictionary will be serviceable to those who are in want of hints and references, and are content with a general idea of a law or legal principle. It is a handy book to have at one's elbow." — Sattcrday Review. " This book has now been for some tim,e published, and we have had many opportunities of referring to it. We find it an admirable Law Dictionary, and something more, inasmuch as it contains elaborate historical and antiquarian analyses of our legal system, under the several headings. The student and the literary man will find the book very useful in reading and writing. Indeed the people who are not lawyers, but who nevertheless feel a desire or are under a 7iecessity to use legal terms, or who meet them iii their course of study, cannot do better than obtain a copy of this work and use it judiciously ; they will thereby be enabled to avoid the ludicrous errors into which novelists in particular, and public speakers too, are often led by the inappropriate use of terms whose meanings they do not perfectly comprehend.''"' — IRISH Law Times. WOEZS FOR LAW STUDENTS. 27 In 8vo., 1877, price 20s., cloth, PRINCIPLES OF THE CEIMINAL LAW. INTENDED AS A LUCID EXPOSITION OF THE SUBJECT FOR THE USE OF STUDENTS AND THE PROFESSION, By SEYMOUR F. HARRIS, B.C.L., M.A., Of Worcester College, Oxford, and the Inner Temple, Barrister-at-Law ; Author of " A Concise Digest of the Institutes of Gaius and Justinian." REVIEWS. • * ' There is no lack of Works on Criminal Lazu, but there was room for such a useful handbook of Principles as Mr. St'ymour Harris has supplied. Accustomed, by his preinous labours, to the task of analysing the laiu, Mr. Harris has brought to bear upon his present work qualifications well adapted to secure the successful accomplishment of the object which he had set before him. That object is not an ambitious one, for it does not pretettd to soar above titility to the young practitioner and the student. For both these classes, andjor the yet wider class who may require a book of reference on the subject, Mr. Harris has produced a clear and convenient Epitome of the Lazv. A noticeable feature of Mr. Harris's work, which is likely to prove of assistance both to the practitioner and the studettt, consists of a Table of Offences, with their legal character, their punishment, and the staltde under zvhich it is inflicted, together with a reference to the pages where a Statement of the Lazu will be found." — Law Magazine and Review. ' ' Air. Harris has undertaken a work, in our opinion, so much needed that he might diminish its bulk in the next edition by obliterating the apologetic preface. The appearance of his volume is as well timed as Us execution is satisfactory. The author has shown an ability of omission which is a good test of skill, and from the overwhelming mass of the criminal law he has discreetly selected just so much only as a learner needs to know, and has presented it in terms zvhich render it capable of being easily taken into the mind. The first half of the volume is devoted to indictable offences, which are defined and explained in succinct ter?ns ; the second half treats of the prevention of offences, the courts of criminal jurisdictioti, arrest, preliminary proceedings before magistrates, and modes of prosecution and trial ; and a brief epitome of the laws of evidence, proceedings after trial, and summary convictions, with a table of offences, complete the book. The part on procedure will be found particularly useful. Fezv young counsel, on their first appearance at sessions, have more than a loose and general notion of the manner in which a trial is conducted, and often commit blunders which, although trifling in kind, are nevertheless seriously discouraging and annoying to themselves at the outset of their career. From even such a blunder as that of mistaking the order in which the speeches are made and witnesses exajtiined, they may be saved by the table of instructions given here." — Solicitors' Journal. "This work purports to contain 'a concise exposition of the nature of crime, the various offences punishable by the English law, the law of criminal procedure, and the law of summary convictions,' with tables of offences, punishments, and statutes. At the first blush of the thing one might be tempted to ex- claim: 'All this is well-trodden ground. What need, then, can there be of further text-books, treatises, or reference-books?' Well, we think that a very slight examination of Mr. Harris's book will be sufficient to show that the learned author has so treated his subject as to justify this addition to our stock of criminal law books. We will put the matter in a very simple way. Every year there is a goodly array of young men starting for assizes and sessions, full of hope and fairly stocked with knowledge of civil law. The first brief is pretty sure to be a mild prosecution. But criminal law has not been a theme of instruc- tion in the chambers of pleader or counsel, and the subject is not a familiar one, even after some prepara- tion for the pass examination. In what book is the young barrister to look for a little help and instruction before he starts on his campaign ? Now IVIr. Harris offers to all this class of students a fair general view of the criminal law of England in a style which is neither too condensed nor too discursive ; and he has managed to have his book so well printed, with pages so neatly spaced, and such noble paper and margins, that the reader is enticed to proceed with his task. The work is divided into four books. Book I. treatsof crime, its divisions and essentials ; of persons capable of committing crimes ; and of prin- cipals and accessories. Book II. deals with offences of a public nature; ofl'ences against private persons ; and offences against the property of individuals. Each crime is discussed in its turn, with as much brevity as could well be used consistently with a proper explanation of the legal characteristics of the several offences. Book III. explains criminal procedure, including the jurisdiction of Courts, and the various steps in the apprehension and trial of criminals from arrest to punishment. This part of the work is extremely well done, the description of the trial being excellent, and thoroughly calculated to impress the mind of the uninitiated. Book IV. contains a short sketch of 'summary convictions before magistrates out of quarter sessions.' The table of offences at the end of the volume is most useful, and there is a very full index. Altogether we must congratulate Mr. Harris on his adventure." — Law Journal. 28 WOEKS FOE LAW STXmENTS. In one volume, 8vo., 1878, price cloth. LEADING STATUTES SUMMARISED, FOR THE USE OF STUDENTS. By ERNEST C. THOMAS, Bacon Scholar of the Hon. Society of Gray's Inn, late Scholar of Trinity College, Oxford ; Author of " Leading Cases in Constitutional Law Briefly Stated," In 8vo., 1876, price 6^., cloth, LEADING CASES IN CONSTITUTIONAL LAW BEIEFLY STATED, WITH INTRODUCTION, EXCUESUSES, AND NOTES. By ERNEST C. THOMAS, Bacon Scholar of the Hon. Society of Gray's Inn, late Scholar of Trinity College, Oxford. " Mr. E. C. Thomas has put together in a slim octavo a digest of the principal cases illustrating Con- stitutional Law, that is to say, all questions as to the rights or authority of the Crown or persons under it, as regards not merely the constitution and structure given to the governing body, but also the mode in which the sovereign power is to be exercised. In an introductory essay Mr. Thomas gives a very clear and intelligent survey of the general functions of the Executive, and the principles by which they are regulated ; and then follows a summary of leading ca.ses."—Saiurday Review. "Mr. Thomas gives a sensible introduction and a brief epitome of the familiar leading cases."— Law Times. In 8vo., 1876, price 8j., cloth, AN EPITOME OF HINDU LAW CASES, WITH SHORT NOTES THEREON, And Introductory Chapters on SOURCES OF LAW, MARRIAGE, ADOPTION, PARTITION, AND SUCCESSION. By WILLIAM M. P. COGHLAN, BOMBAY CIVIL SERVICE, JUDGE AND SESSIONS JUDGE OF TANNA. " This interesting volume may briefly be described as an epitome of the principal decisions on Hindu Law passed by all our High Courts. But it gives also a clear and intelligible history of the Hindu customs of Marriage, Adoption, and Partition, with a disquisition on the sources of Hindu Law. in the course of which the different authorities are marshalled, and their order of precedence and position in the different schools of Hindu Law pointed out. Apart, altogether, from their professional value, these introductory chapters are interesting to the layman, as presenting a series of curiously exact photographs of every day Hindu life, which are further illustrated by the rulings of the various High Courts. We have only space to direct the readers' attention to the chapters on marriage, and the cases cited, for we made use of this text-book among others in discussing the Hindu marriage laws in our columns last year. Mr. Coghlan is well known as the Judge and Session Judge of Tanna, and as one of the closest students of Hindu life as well as of Hindu law. His volume is already a text-book to the students of Hindu law in England, and should also find a welcome here from practitioners, and even, through the intrinsic interest of the subject and the ability of treatment, from those general readers who may be interested in Indian matters." — Times of India. " Mr. Coghlan, Judge and Sessions Judge of Tanna, has prepared an epitome of some Hindoo law cases as a guide to the law reports and to the standard text-books. Apart from its professional value, it presents a curious picture of Hindoo customs and ideas on various subjects, such as marriage, family ties. &c."— Saturday Review. STEVENS & HAYNES, BELL YARD, TEMPLE BAB. 29 Second Edition, in 8vo., 1875, THE LAW AND PRACTICE UNDER THE COMPANIES ACTS 1862, 1867, 1870; THE LIFE ASSURANCE COMPANIES ACTS, 1870, 1871, 1872; AND OTHER ACTS RELATING TO JOINT STOCK COMPANIES, Together with Rules, Orders, and Forms, &c. &c. By H. Burton Buckley, M.A., of Lincoln's Inn, Barrister-at-Law, and Fellow of Christ's College, Cambridge. *^* In the preparation of the Second Edition the Reports have been carefully re-searched, a7idnunierous authorities added. Table A . of The Cotnpanies Act, 1862, is now printed with Notes, in which many poitits ?iot touched ttpon in the First Edition are disctissed. The atithorities, including those in the Albert and European Arbitrations, are brotight down to the date of publication. EUROPEAN ARBITKATION". Part I., price Ts.6d,, sewed, LORD WESTBURY'S DECISIONS. Reported by Fbancis S. Reilly, of Lincoln's Inn, Barrister-at-Law. ALBERT ARBITRATION. Parts I., II., and III., price 2$s., sewed, LORD CAIRNS'S DECISIONS. Reported by Francis S. Reilly, of Lincoln's Inn, Barrister-at-Law. In 8vo., 1 87 1, price 2ii-., cloth, A TREATISE ON THE STATUTES OF ELIZABETH AGAINST FRAUDULENT CONVEYANCES. The Bills of Sale Registration Acts., and the Law of Voluntary Dispositions of Property generally. By H. W. MAY, B.A. (Ch. Ch. Oxford), and of Lincoln's Inn, Barrister-at-Law. " This treatise has not been published before it was wanted. The statutes of Elizabeth against fraudulent conveyances have now been in force for more than three hundred years. The decisions under them are legion in number, and not at all times consistent with each other. An attempt to reduce the mass of decisions into something like shape, and the exposition of legal principles in- volved in the decisions, under any circumstances, must have been a work of great labour, and we are pleased to observe that in the book before us there has been a combination of unusual labour with considerable professional skill. . . . We can- not conclude our notice of this work without saying that it reflects great credit on the publishers as well as the author. The facilities afforded by Messrs. Stevens and Haynes for the publication of treatises by rising men in our profession are deserving of all praise. We feel assured that they do not lightly lend their aid to works presented for publication, and that in consequence publication by such a firm is to some extent a guarantee of the value of the work published." — Canada Law Journal. " Examining Mr. May's book, we find it con- structed with an intelligence and precision which render it entirely worthy of being accepted as a guide in this confessedly difficult subject. The subject is an involved one, but with clean and clear handling it is here presented as clearly as it could be. . . . On the whole, he has produced a very useful book of an exceptionally scientific character." — Solicitors' journal. " The subject and the work are both very good. The former is well chosen, new, and interesting ; the latter has the quality which always distin- guishes original research from borrowed labours." — American Law Review. "We are happy to welcome his (Mr. May's) work as an addition to the, we regret to say, brief cata- logue of law books conscientiously executed. We can corroborate his own description of his labours, ' that no pains have been spared to make the book as concise and practical as possible, without doing so at the expense of perspicuity, or by the omission of any important points. — Law Times. 30 STEVENS & EATNES, BELL YABD, TEMPLE BAR. In one volume, 8vo., 1875, price 25J., cloth, AN ESSAY THE RIGHTS OF THE CROWN AND THE PRIVILEGES OF THE SUBJECT 3In tbc %teL %f)oxt$ of tbc iRcalm. By Robert Gream Hall, of Lincoln's Inn, Barrister-at-Law. Second Edition. Revised and corrected, together with extensive Annotations, and references to the later Authorities in England, Scotland, Ireland, and the United States. By Richard LovELAND Loveland, of the Inner Temple, Barrisler-at-Law. " This is an interesting and valuable book. It treats of one of those obscure branches of the law which there is no great inducement for a legal writer to take up Mr. Hall, whose first edition was issued in 1830, was a writer of considerable power and method. Mr. Loveland's editing reflects the valuable qualities of the ' Essay ' itself. He has done his work without pretension, but in a solid and efficient manner. The ' Sum- mary of Contents' gives an admirable epitome of the chief points discussed in the ' Essay,' and indeed, in some twenty propositions, supplies a useful outline of the whole law. Recent cases are noted at the foot of each page with great care and accuracy, while an Appendix contains much valu- able matter ; including Lord Hale's treatise De Jure Maris, about which there has been so much controversy, and Serjeant Merewether's learned argument on the rights in the river Thames. The book will, we think, take its place as the modern authority on the subject." — Law Journal. "The treatise, as originally published, was one of considerable value, and has ever since been quoted as a standard authority. But as time passed, and cases accumulated, its value diminished, as it was necessary to supplement it so largely by reference fo cases since decided. A tempting opportunity was, therefore, offered to an intelligent editor to supply this defect in the work, and Mr. Loveland has seized it, and proved his capacity in a very marked manner. As very good specimens of anno- tation, showing clear judgment in selection, we may refer to the subject of alluvion at page 109, and the rights of fishery at page 50. At the latter place he begins his notes by stating under what expressions a ' several fishery ' has been held to pass, pro- ceeding subsequently to the evidence which is sufficient to support a claim to ownership of a fishery. The important question under what cir- cumstances property can be acquired in the soil between high and low water mark is lucidly dis- cussed at page 77, whilst at page 81 we find a pregnant note on the property of a grantee of wreck in goods stranded within his liberty. "We think we can promise Mr. Loveland the reward for which alone he says he looks — that this edition of Hall's Essay will prove a most decided assistance to those engaged in cases relating to the foreshores of the country." — Law Times. " The entire book is masterly!' — Albany Law Journal. In one volume, 8vo., 1877, price I2J., cloth, A TREATISE OX THE LAW RELATING TO THE POLLUTION AND OBSTRUCTION OF WATER COURSES; Together with a Brief Summary of the Various Sources of Rivers Pollution. By CLEMENT HIGGINS, M.A., F.C.S., OF THE INNER TEMPLE, BARRISTER-AT-LAW. " As a compendium of the law upon a special and rather intricate subject, this treatise cannot but prove of great practical value, and more especially to those who have to advise upon the institution of proceedings under the Rivers Pollu- tion Preventive Act, 1876, or to adjudicate upon those proceedings when brought." — /risA Law Timet. f "We can recommend Mr. Higgins' Manual as the best guide we possess." — L'uHic Health. " County Court Judges, Sanitary Authorities, and Riparian Owners will find in Mr. Higgins' Treatise a valuable aid in obtaining a clear notion of the Law on the subject. Mr. Higgins has accomplished a work for which he will readily be recognised as having special fitness, on account of his pr.ictical acquaint.ince both with the scientific and the legal aspects of his subject." — Law Maga- zine and Review. " The volume is very carefully arranged through- out, and will prove ol great utility both to miners and to owners of land on the banks of rivers." — 7/ie Mining Journal. " Mr. Higgins writes tersely and clearly, while his facts are so well arranged that it is a pleasure to refer to his book for information ; and altogether the work is one which will be found very useful by all interested in the subject to which it relates." — Engineer. "A compact and convenient manual of the law on the subject to which it relates." — Solicitors' Journal. In 8vo., Third Edition (November), 1877, price 25^-., cloth, MAYNE'S TREATISE ON THE LAW OF DAMAGES. JOHN D. MAYNE, Of the Inner Temple, Barrister-at-Law ; AND LUMLEY SMITH, Of the Inner Temple, Barrister-at-Law. " During tJie twenty-tiuo years which have elapsed since the publication of this well-knovfn -work, its reptttation has been steadily grooving, and it has iom; since bfcome the recognised authority on the im/'ortant subject 0/ which it treats."— hh^ Magazine and Review. "This edition of what has tecome a standard work has the advantage of appearing under the supervision of the original author as well as of Mr. Lumley Smith, the editor of the second edition. The result is most satisfactory. Mr. Lumley Smith's edition was ably and conscientiously pre- pared, and we are glad to find that the reader still enjoys the benefit of his accuracy and learning. At the same time the book has, doubtless, been improved by the reappearance of its author as co- editor. The earlier part, indeed, has been to a considerable extent entirely rewritten. Upon the general principles, according to which damages are to b« assessed in actions of contract, Hadley v. Baxendale (9 Ex. 341) still remains the leading authority, and furnishes the text for the discussion contained in the second chapter of Mr. Mayne's book. Properly imderstood and limited, the rule proposed in that case, although in one respect not very happily worded, is a sound one, and has been repeatedly approved both in England and America. Damages may, according to the judgment of the Court of Exchequer, be recovered if they are such as "may fairly and reasonably be considered as arising either naturally, i.e., according to the usual course of things from the breach of contract itself, or such as may reason- ably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it." There is no difficulty as to the first alternative in principle, although sometimes it may not be very easy to estimate the amount of damage. But the second alternative has given rise to much discussion, and it may be doubted whether the rule so expressed is of much service ; for, generally speaking, parties contemplate the performance and not the violation of their contracts. The class of cases which it is intended to cover is that in which a contract is made under special circumstances, and damages which would not arise in the usual course of things from a breach do arise from those circumstances. If such circumstances are not known to the party who breaks the contract, it is clear that he is not liable. If they are known, then, according to Hadley v. Baxetidale, he would be liable, since the resulting damage must be held within his contem- plation, and so, i>i that case, the natural consequence of the breach. This proposition, however, must now be taken with considerable modification. The subsequent decisions, which are concisely summa- rized by Mr. Mayne, have established that mere knowledge of special circumstances is not enough, unless it can be inferred from the whole transaction that the contractor consented to become liable to the extra damage. This limitation is obviously just, especially in the case of persons, such as common carriers, who have no option to refuse the contract. Mere knowledge on their part of special circumstances ought not, and, according to the dicta of the judges in the Exchequer Chamber in Home V. Midland Railway Compaiiy (21 W. R. 481, L. R. 8 C. P. 131), would not involve the carrier in additional responsibility. Mr. Mayne's criticism of the numerous cases in which this matter has been considered leaves nothing to be desired, and the rules he deduces therefrom (pp. 32, 33) appear to us to exhaust the subject. Mr. Mayne's remarks on damages in actions of tort are brief. We agree with him that in such actions the courts are governed by far looser princi- ples than in contracts ; indeed, sometimes it is impossible to say they are governed by any princi- ples at all. In actions for injuries to the person or reputation, for example, a judge cannot do more than give a general direction to the jury to give what the facts proved in their judgment required. And, according to the better opinion, they may give damages "for example's sake," and mulct a rich man more heavily than a poor one. In actions for injuries to property, however, "vindictive" or " exemplary" damages cannot, except in very rare cases, be awarded, but must be limited, as in con- tract, to the actual harm sustained. The subject of remoteness of damage is treated at considerable length by Mr. Mayne, and we notice that much new matter has been added. Thus the recent case of Riding v. Smith {24 W. R. 487, i Ex. D. 91) furnishes the author with an opportunity of discussing the well-known rule in Ward v. Weeks (7 Bing. 211) that injury resulting from the repetition of a slander is not actionable. The rule has always seemed to us a strange one, if a man is to be made responsible for the natural consequences of his acts. For every one who utters a slander may be perfectly certain that it will be repeated. It is needless to comment upon the arrangement of the subjects in this edition, in which no alteration has been made. The editors modestly express a hope that all the English as well as the prineipal Irish decisions up to the date have been included, and we believe from our own examination that the hope is well founded. We may regret that, warned by the growing bulk of the book, the editors have not included any fresh American cases, but we feel that the omission was unavoidable. We should add that the whole work has been thoroughly revised." — Solicitors' yaurnal. 32 STEVENS Sc HAYNES, BELL TABD, TEMPLE BAB. In Svo., price 2s., sewed, TABLE of the FOREiaN MERCANTILE LAWS and CODES in Force in the Principal States of EUROPE and AMERICA. By Charles Lyon-Caen, Professeur agrege a la Faculte de Droit de Paris ; Professeur k I'Ecole libre des Sciences politiques. Translated by Napoleon Argles, Solicitor, Pans. In one volume, demy Svo. , 1866, price 10s. 6d., cloth, PRINCIPLES OF THE LAW OF STOPPAGE IN TRANSITU, RETENTION, AND DELIVERY. By JOHN HOUSTON, of the Middle Temple, Barrister-at-Law. " We have no hesitation in saying, that we think Mr. Houston's book will be a very useful accession to the library of either the merchant or the lawyer." — Soluitors' youmal. " We have, indeed, met with few works which so successfully surmount the difficulties in the way of this arduous undertaking as the one before us ; for the language is well chosen, it is exhaustive of the law, and is systematised with great method." — Atneruan La-w Review. In 8vo,, 1870, price lar. dd., cloth, A REPORT OF THE CASE OF THE QUEEN v. GURNEY AND OTHERS. In the Court of Queen's Bench before the Lord Chief Justice Cockburn. With an Introduction, containing a History of the Case, and an Examination of the Cases at Law and Equity applicable to it ; or Illustrating the Doctrine of Com- mercial Fraud. By W. F. Finlason, Barrister-at-Law. " It will probably be a very long time before the prosecution of the Overend and Gurney directors is forgotten. It remains as an example, and a legal precedent of considerable value. It involved the immensely important question where innocent mis- representation ends, and where fraudulent misrepre- sentation begins. " All who perused the report of this case in the columns of the Times, must have observed the remarkable fulness and accuracy with which that duty was discharged, and nothing could be more natural than that the reporter should publish a separate report in book form. This has been done, and Mr. Finlason introduces the report by one hundred pages of dissertation on the general law. To this we shall proceed to refer, simply remarking before doing so, that the charge to the jury has been carefully revised by the Lord Chief Justice." — Law Times. I2mo., 1866, price 10s. 6d., cloth, A TREATISE ON THE GAME LAWS OF ENGLAND & WALES: Including Introduction, Statutes, Explanatory Notes, Cases, and Index. By John Locke, M.P., Q.C., Recorder of Brighton. The Fifth Edition, in which are introduced the GAME LAWS of SCOTLAND and IRELAND. By Gilmore Evans, of the Inner Temple, Barrister-at-Law. In royal 8vo., 1867, price los. 6d., cloth, THE PRACTICE of EQUITY by WAY of REVIVOR & SUPPLEMENT. With Forms of Orders and Appendix of Bills. By LOFTUS Leigh Pemberton, of the Chancery Registrar's Office. " Mr. Pemberton has, with great care, brought together and classified all these conflicting cases, and has, as far as may be, deduced principles which will probably be applied to future cases."— .$"0/7- citors' youmal. In 8vo., 1873, price 5j., cloth, THE LAW OF PRIORITY. A Concise View of the Law relating to Priority of Incumbrances and of other Rights in Property. By W. G. Robinson, M.A., Barrister-at-Law. "Mr. Robin-son's book may be recommended to I tioner with a useful supplement to larger and more the advanced student, and will furnish the practi- I complete works." — Solicitors' Journal. STEVENS & HAYNES, BELL YARD, TEMPLE BAR. 33 ELECTION E^ A\^. In crown 8vo., 1874, price 14^., cloth, A MANUAL OF THE PEACTIOE OF PAELIAMEN'TARY ELECTIONS Throughout Great Britain and Ireland. COMPRISING THE DUTIES of RETURNING OFFICERS and their DEPUTIES, TOWN CLERKS, AGENTS, POLL-CLERKS, &c., AND THE f nto of 6lcctiait €^*pcnscs, Corrupt |!ractias, k Illegal Jaimcnts. WITH AN APPENDIX OF STATUTES AND AN INDEX. By henry JEFFREYS BUSHBY, Esq., One of the Metropolitan Police Magistrates, sometime Recorder of Colchester. FOURTH EDITION, Adapted to and embodying the recent changes in the La7u, including the Ballot Act, the Instructions to Returning Officers in England and Scotlafid issued by the Home Office, and the "whole of the Statute Laia i-elating to the subject. Edited by HENRY HARDCASTLE, OF THE INNER TEMPLE, BARRISTER-AT-LAVV. " We have just received at a very opportune , is known as one of the joint editors of O'Malley moment the new edition of this useful work. We I and Hardcastle's Election Reports, has done his need only say that those who have to do with work well. . . . For practical purposes, as elections will find ' Bushby's Manual ' replete with | a handy manual, we can recommend the work information and trustworthy, and that Mr. Hard- | to returning officers, agents, and candidates ; and returning officers cannot dc better than distribute this manual freely amongst their subordinates, if they wish them to understand their work." — Soli- citors' yournal. castle has incorporated all the recent changes of the law. " — Lww jfournal. " As far as we can judge, Mr. Hardcastle, who A Companion Volume to the above, in crown 8vo., 1874, price 8.5-., cloth, THE LAW AND PEAOTICE OF ELECTION PETITIONS, With an Appendix containing the Parliamentary Elections Act, 1868, the General Rules for the Trial of Election Petitions in England, Scotland, and Ireland, Forms of Petitions, &c. By Henry Hardcastle, of the Inner Temple, Barrister-at-Law. _" Mr. Hardcastle gives us an original treatise [ extremely useful, and he gives all the law and with foot notes, and he has evidently taken very practice in a very small compass. In an Appendix considerable pains to make his work a reliable is supplied the Act and tlie Rules. We can guide. Beginning witli the effect of the Election thoroughly recommend Mr. Hardcastle's book as a Petitions Act, 1868. he takes his readers step by concise manual on the law and practice of election step through the new procedure. His mode of I petitions." — Law Times. treating the subject of 'particulars' will be found \ Now ready. Volume I., price 30J.; Volume II., price 2\s.; and Volume III., Part I., price 5^. REPORTS OF THE DEGISIONS^ OF THE JUDGES FOR THE TRIAL OF ELECTION PETITIONS IN ENGLAND AND IRELAND. PURSUANT TO THE PARLIAMENTARY ELECTIONS ACT, 1S6S. By EDWARD LOUGHLIN O'MALLEY and HENRY HARDCASTLE. 34 STEVENS & HATNES, BELL YABD, TEMPLE BAB. ^tfbfuS unti f^apiif^' ^rrtc«{ of l^cprintj; of ti;e Cniln 3£leportfriS. SOME RARE LAW BOOKS. [From "The Albany Law Journal."] " Law books are not generally things of beauty. There is nothing particularly grati- fying to the esthetic department of the human organism in the conventional typography and sheep-skin. Some of our publishers give considerable attention to the mechanical execution of their books, and deserve and receive a good degree of credit therefor. But, after all, their labours seldom please the eye. In most marked contrast to even the very best of our books, are a series of law books that have been recently issued by Messrs. Stevens & Haynes, of London. They are reprints of some of the scarcest of the Old English Reports, and in their mechanical execution would delight the heart of Aldus Manutius, Thuanus, or any other admirer of elegant editions. The black letter type of the originals is faithfully reproduced, the curious old-style spelling and interchange of letters have been closely followed, while the rich antique calf covers are, no doubt, superior to anything that served to encase the original Reports. These editions have been carefully prepared, and some of the volumes have been enriched with notes added in MS. to some copy of tiie original by its learned owner generations ago. "This enterprise of Messrs. Stevens & Haynes is a matter of universalinterest, and appeals to every lover of elegant books. The works which they have reproduced are those which were the scarcest, and for copies of which the most exorbitant prices were demanded. The following is a brief description of the matter of these volumes." BELLEWE'S CASES, T. RICHAHD U. In 8vo., 1869, price 3/. 3 J-., bound in calf antique, LES ANS DU ROY RICHARD LE SECOND. Collect' ensembl' hors les abridgments de Statham, Fitzherbert, et Brooke. Per Richard Bellewe, de Lincolns Inne. 1585. Reprinted from the Original Edition. " No public library in the world, where English law finds a place, should be without a copy of this edition of Bellewe." — Canada Law Jourtial. "We have here a facsimile edition of Bellewe, and it is really the most beautiful and admirable highly creditable to the spirit and enterprise of private publishers. The work is an important link in our legal history; there are no year books of the reign of Richard II., and Bellewe supplied the only substitute by carefully extracting and collecting all the cases he could find, and he did it in the most reprint that has appeared at any time. It is a j convenient form — that of alphabetical arrangement perfect gem of antique printing, and forms a most in the order of subjects, so that the work is a digest interesting monument of our early legal history. ! as well as a book of law reports. It is in fact a It belongs to the same class of works as the Year | collection of cases of the reign of Richard II., Book of Edward I. and other similar works which arranged according to their subjects in alphabetical have been printed in our own time under the I order. It is, therefore, one of the most intelligible auspices of the Master of the Rolls ; but is far I and interesting legal memorials of the Middle superior to any of them, and is in this respect | Ages." — Latu Times. CUNNINGHAM'S REPORTS. In 8vo., 1871, price 3/. 3^-., calf antique, Cunningham's (T.) Reports in K. B., 7 to 10 Geo. IT. ; to which is prefixed a Proposal lor rendering the Laws of England clear and certain, humbly offered to the Consideration of both Houses of Parliament. Third Edition, with numerous Corrections. By Thomas Townsend Bucknill, Barrister-at-Law. " The instructive chapter which precedes the case'., entitled ' A proposal for rendering the Laws of England clear and certain,' gives the volume a degree of peculiar intert- st, independent of the value of many of the reported cases. That chapter begins with words wliicli ought, for the information of every people, to be printed in letters of gold. They are as follows : ' Nothing conduces more to the peace and prosperity of every nation than good laws and the due execution of them.' The history of the civil law is then rapidly traced. Next a history is given of English Reporters, beginning with the re[)orters of the Year Books from i Edw. III. to 12 Hen. VIII. — being near 200 years — and after- wards to the time of the author." — Canada Law yournal. STEVENS & HAYNES, BELL YAKD, TEMPLE BAR. 35 ^t?bcnS mxa '^mjmS' ^txiti at Mrprint^ at tlje eFarlg larpnrtfr^. CHOYCE CASES IN CHANCERY. In 8vo., 1S70, price 2/. 2s., calf antique, THE PRACTICE OF THE HIGH COURT OF CHANCERY. With the Nature of the several Offices belonging to that Court. And the Reports of many Cases wherein Releif hath been there had, and where denyed. "This volume, in paper, type, and binding (like " Bellewe's Cases ") is a facsimile of the antique edition. All who buy the one should buy the other." — Canada Laru Journal. In 8vo., 1872, price 3/. 3^-,, calf antique, SIR G. COOKE'S COMMON PLEAS REPORTS In the Reigns of Queen Anne, and Kings G-eorge I. and II. The Third Edition, with Additional Cases and References contained in the Notes taken from L. C. J. Eyre's MSS. by Mr. Justice N.-vres, edited by Thomas TOWNSEND BUCKNILL, of the Inner Temple, Barrister-at-Law. "Law books never can die or remain long dead an old volume of Reports maybe produced by these so long as Stevens and Haynes are willing to con- modern publishers, whose good taste is only equalled tinue them or revive them when dead. It is cer- by their enterprise." — Canada Law Journal. tainly surprising to see with what facial accuracy BROOKE'S NEW CASES WITH MARCH'S TRANSLATION. In 8vo., 1873, price 4/. 4^., calf antique, Brooke's (Sir Robert) New Cases in the time of Henry VI II., Edward VI., and Queen Mary, collected out of Brooke's Abridgment, and arranged under years, with a table, together with March's (John) Trauslatio7i ^/"Brooke's New Cases in the time of Henry VIII., Edward VI., and Queen Mary, collected out of Brooke's Abridgment, and reduced alphabetically under their proper heads and titles, with a table of the principal matters. In one handsome volume. 8vo. 1873. " Both the original and the translation having long been very scarce, and the mispaging and other errors in March's translation making a new and corrected edition peculiarly desirable, Messrs. Stevens and Haynes have reprinted the two books in one volume, uniform with the preceding volumes of the series of Early Reports." — Canada Law Jojtmal. KELYNGE'S (W.) REPORTS. In 8vo., 1873, price 4/. 4^., calf antique, Kelynge's (William) Reports of Cases in Chancery, the King's Bench, &c., from the 3rd to the 9th year of His late Majesty King George II., during which time Lord King was Chancellor, and the Lords Raymond and Hardwicke were Chief Justices of England. To which are added, seventy New Cases not in the First Edition. Third Edition. In one handsome volume. 8vo. 1873. KELYNG'S (SIR JOHN) CROWN CASES. In 8vo., 1S73, price 4/. 4^., calf antique, Kelyng's (Sir J.) Reports of Divers Cases in Pleas of the Crown in the Reign of King Charles II., with Directions to Justices of the Peace, and others; to which are added. Three Modern Cases, viz., Armstrong and Lisle, the King and Plummer, the Queen and Mawgridge. Third Edition, containing several additional Cases neve}' be/ore printed, together with a Treatise upon the Law and Proceed- ings IN Cases of High Treason, first published in 1793. The whole carefully revised and edited by Richard Loveland Loveland, of the Inner Temple, Barrister-at-Law. " We look upon this volume as one of the most , good service rendered by Messrs. Stevens & Haynes important and valuable of the unique reprints of ' to the profession. . . Should occasion arise, the Messrs. Stevens and Haynes. Little do we know Crown prosecutor as well as counsel for the prisoner of the mines of legal wealth that lie buried in the : will find in this volume a complete vade jnecian of old law books. But .a careful examination, either of i the law of high treason and proceedings in relation the reports or of the treatise embodied in the volume I thereto." — Canada Law Journal. now before us, will give the reader some idea of the i STEVENS & HAYNES, BELL YAKD, TEMPLE BAR. *trbrn^ anlf ?i}rtitnrs* &tvieS of SRrprtntS nf tlft (!ParIy 3Krpnrtfrg. SIR BARTHOLOMEW SHOWER'S PARLIAMENTARY CASES. In Svo., 1S76, price 4/. 4^., best calf binding, SHOWER'S CASES IN PAELIAMENT RESOLVED AND ADJUDGED UPON PETITIONS AND WRITS OF ERROR. FOURTPI EDITION. COIfTAIIflM'G ADSXTIODTAXi CASES STOT HITHERTO REPORTE2>. REVISED AND EDITED BY RICHARD LOVELAND LOVELAND, Of the Inner Temple, Barrister-at-Law ; Editor of " Kelyng's Crown Cases," and " Hall's Essay on the Rights of the Crown in the Seashore." " Messrs. Stevens & Haynes, the successful publishers of the Reprints of Bellewe, Cooke, Cunningham, Brookes' New Cases, Choyce Cases in Chancery, William Kelynge and Kelyng's Crown Cases, determined to issue a new or fourth Edition of Shower's Cases in Parliament. "The volume, although beautifully printed on old-fashioiied paper, in old-fashioned type, instead of being in the quarto, is in the more convenient octavo form, and contains several additional cases not to be found in any of the previous editions of the work. "These are all cases of importance, worthy of being ushered into the light of the world by enterprising publishers. " Shower's Cases are models for reporters, even in our day. The statements of the case, the arguments of counsel, and the opinions of the Judges, are all clearly and ably given. " This new edition with an old face of these valuable reports, under the able editorship of R. L. Loveland, Esq., should, in the language of the advertisement, ' be welcomed by the profession, as well as enable the custodians of public libraries to complete or add to their series of English Law Reports.' " — Canada Law Journal. In 8vo., Fourth Edition, 1878, price 6s., cloth, THE MARRIED WOMEN'S PROPERTY ACT, 1870, AND THE ManHed Women s Property Act, i8yo, Amejidinent Act, 18^4. THEIR RELATIONS TO THE DOCTRINE OF SEPARATE USE. Wi\i\) S[ppcut(t)f of Statutes! antJ dTormsi. By the late J. R. GRIFFITH, B.A. Oxoxv, Of Lincoln's Inn, Barrister-at-Law. FOURTH EDITION. By W. GREGORY WALKER, Of Lincoln's Inn, Barrister-at-Law ; Author of "A Manual of the Law of Partition," &c. "The subject of this little treatise is one which is of every-day interest and practical importance, and the public and practitioner will find in this edition a brief but pithy statement of the laws, comprising the Acts themselves, and the Cases bearing upon their construction." — Law Times. STEVENS & HAYNES, BELL YARD, TEMPLE BAR. 37 THE AND QUARTERLY DIGEST OF ALL REPORTED CASES. Price FIVE SHILLINGS each Number. No. CCXVIII. (Vol. I, No. I. of the New Quarterly Series.) November, 1875 No. CCXIX. (Vol. I, 4th Series No. II.) February, 1876. N.B. — These tzuo Numbers are out o/print. No, CCXX. (Vol. I, 4th Series No. III.) For May, 1876. No. CCXXI. (Vol. I, 4th Series No. IV.) For August, 1876. No. CCXXII. (Vol. 2, 4th Series No. V.) For November, 1876. No. CCXXIII. (Vol. 2, 4th Series No. VI.) For February, 1877 No. CCXXIV, (Vol. 2, 4th Series No. VII.) For May, 1877. No. CCXXV. (Vol. 2, 4th Series No. VIII.) For August, 1877. No. CCXXVI. (Vol. 3, 4th Series No. IX.) For November, 1877, 1. The Doctrine of Continuous Voyages, as applied to Contraband of War and Blockade By Sir Travers Twiss, Q.C., D.C.L. 2. On Jurisprudence and the Amendment of the Law. By the Hon. Lord Giflford (one of the Judges of the Court of Session). 3. Memoir of the late Lord Justice MelHsh. By G. K. Rickards, Counsel to the Speaker. 4. Borough Extension. By J. H. Balfour Browne, Barrister-at-Law, Registrar to the Railway Ciimmission. 5. On the Obligation of Treaties. By Henry Richard, M.P. 6. Select Cases: Scotland. By Hugh Barclay, LL.D., Sheriff-Substitute, Perth. 7. Judgment of the Court of Messina in the Rainford Appeal Case. 8. Legal Obituary of the Quarter. 9. Reviews of New Books. 10. Quarterly Digest of all Reported Cases. Table of Cases. Index of Subjects. No. CCXXVII. (Vol. 3, 4th Series No. X.) For February, 1878. 1. Albericus Gentilis on the Right of W,ir. By Sir Travers Twiss, D.C.L., Q.C. 2. General Average and the Committee of Lloyd's. By Charles Clark, Q.C. 3. Curiosities of English Law. No. IIL Usurious Contracts with Expectant Heirs. By Robert Collier, M.A., Barrister-at-Law. 4. The Laws of War and the Institute of International Law. 5. The Block in the Common Law Divisions. By J. V. Vesy FitzGerald, B.A., Barrister-at-Law. 6. Law and Custom among the Southern Slavs. 7. The Evidence of Experts. By G. Broke Freeman, M.A., Barrister-at-Law. * 8. Select Cases : Scottish and Colonial. 9. Legal Obituary of the Quarter. 10. Reviews of New Books. ir. Quarterly Digest of all Reported Cases. Table of Cases. Index of Subjects. No. CCXXVIII. (Vol. 3, 4th Series No. XI.) For May, 1878. 1. Codification and Legal Education. By Mr. Justice Markby (Supreme Court, Calcutta). 2. The Inclosure Acts and Common Rights. By Frederic Green, M.A., Barrister-at-Law. 3. Practical Legislation. By Francis Savage Re illy, Barrister-at-Law. 4. On the Study of the Law. By Charles Clark, Q.C. 5. Criminal Procedure in Scotland : Its Lessons for England. By Alexander Robertson, M.A. Barrister-at-Law. 6. Parish Registers. By T. P. Taswell-Langmead, B.C.L., Barrister-at-Law. 7. Select Cases : Scottish. By Hugh Barclay, LL.D., Sheriff-Substitute, Perth. 8. Legal Obituary of the Quarter. 9. Reviews of New Books. 10. Quarterly Notes. 11. Quarterly Digest of all Reported Cases. Table of Cases. Index of Subjects. An Annual Subscription of 20s., paid in advance to the Publishers, will secure the receipt of the LAW MAGAZINE, free by post, within the United Kingdom, or for 24s. to the Colonies and Abroad. 38 STEVENS & HAYNES, BELL YARD, TEMPLE BAE. H I N D TJ L A "W. In One Vol., Svo., 1S7S, price , cloth. HINDU LAW AND USAGE. By John D. xMayxe, of the Inner Temple, Barrister-at-Law, Author of " A Treatise on Damages," &c. r> XT T C H XjA.^W. CAPE OF GOOD HOPE. Buchanan (J.)j Index and Digest of Cases decided in the Supreme Court of the CAPE OF GOOD HOPE, reported by the late Hon. William Menzies. Compiled by J.VMES Buchanan, Advocate of the Supreme Court. In One Vol., royal 8vo., 2 1 J. cloth. Reports of Cases decided in the Supreme Court of the CAPE OF GOOD HOPE. Vols. I., II., & III. 1868-70. Royal Svo. 63^-. Vols. IV., parts i. to iii. 1873. ^S-f- Menzies' (W.), Reports of Cases decided in the Supreme Couit of the CAPE OF GOOD HOPE. Vol. I. and Vol. II., parts i. to iv. 5/. Vol. III., parts i. to iv. 42s. In Crown 8vo., price 31J. 6r/., boards. THE INTEODUOTION TO DUTCH JUEISPEUDENCE OF HUGO GROTIUS, with Notes by Simon van Groenwegen van der Made, and References to Van der Keesel's Theses and Schorer's Notes. Translated by A. F. S. Maasdorp, B.A., of the Inner Temple, Barrister-at-Law. In i2mo., price 10s. dd. SELECT THESES on tlie LAWS of HOLLAND and ZEELAND. Being a Commentary of Hugo Grotius' Introduction to Dutch Jurisprudence, and intended to supply certain defects therein, and to determine some of the more celebrated Controversies on the Law of Holland. By Dionysius Godefridus VAN DER Keesel, Advocate, and Professor of the Civil and Modern Laws in the Universities of Leyden. Translated from the original Latin by C. A. LoRENZ, of Lincoln's Inn, Barrister-at-Law. Second Edition, with a Biographical Notice of the Author by Professor J. De Wal, of Leyden. ' NEW ZEALAND. PRACTICAL STATUTES OF NEW ZEALAND. WITH NOTES AND INDEX. Edited by G. B. Barton, of the Middle Temple, Barrister-at-Law. 2 vols. 4to., 1876-77. 5/. 5j., calf. THE NE W ZEALAND JURIST. NEW SERIES. Journal and Law Reports, published Monthly. Subscription, 42s. per Annum. Edited by G. B. BARTON, Barristcr-at-Laiv, Dunedin, New Zealand. The Reports include all cases of importance argued and determined in the Court of Appeal of New Zealand, and in the Supreme Court in its various Districts. The New Zealand Jurist is the only Legal Journal published in New Zealand. Orders for the "Jurist" will be received by STEVENS & HAYNES, BELL YARD, TEMPLE BAR, L(;NDON. STEVENS & HAYNES, BELL YARD, TEMPLE BAR. 39 THE No. 17. Price 2s. E A ^ T E B , 18 7 8 . CONTENTS:— SUBJECTS OF EXAM [NATION. EXAMINATION PAPERS WITH ANSWERS. Real and Personal Property. Common Law. Equity. Roman Law. OF SUCCESSFUL CANDIDATES. OF PARLIAMENT PASSED IN 1877 OF IMPORTANCE TO STUDENTS. Edited by D. TYSSEN, D.C.L., M.A., Of the Inner Temple, Barrister-at-Law ; AND W. D. EDWAEDS, LL.B. Of Lincoln's Inn, Barrister-at-Law. LIST ACTS A. *^* // is intended in future to publish a Number of the Jotcrnal after each Examination. " The seventeenth number of this periodical takes a new and improved form. For the future a number, containing the questions and answers set at each examination for call at the Bar, will be issued immediately the examination is concluded. The answers given, in the journal before us, to the questions set at the examinations held last month, are most accurate, and will be found of the greatest value to future candidates. In addition to the examination questions alluded to, other information most useful to law students is given. All students at the Inns of Court who do not possess a copy of the journal should order one at once." — Oxford and Cambridge Undergraduates' Journal. In 8vo., 1878, price 5^-., cloth. A SUMMARY OF JOINT STOCK COMPANIES' LAW. T. EUSTACE SMITH, Student of the Inner Temple. "The author of this handbook tells us that, when an articled student reading for the final examina- tion, he felt the want of such a work as that before us, wherein could be found the main principles of law relating to joint-stock companies. . . . Law students may well read it ; for Mr. Smith has very wisely been at the pains of giving his authority for all his statements of the law or of practice, as applied to joint-stock company business usually transacted in solicitors' chambers. In fact, Mr. Smith has by his little book offered a fresh inducement to students to make themselves — at all events, to some extent — acquainted with company law as a separate branch of study." — Laiv Times. " These pages give, in the words of the preface, ' as briefly and concisely as possible, a general view both of the principles and practice of the law aftecting companies.' The work is excellently printed, and authorities are cited ; but in no case is the very language of the statutes copied. The plan is good, and shows both grasp and neatness ; and, both amongst students and laymen, Mr. Smith's book ought to meet a ready sale." — Law Journal. 40 STEVENS & HAYNES, BELL YARD, TEMPLE BAR. BIBLIOTHECA LEGUM. In 121110. (nearly 400 pages), price 2s., cloth, A CATALOGUE OF LAW BOOKS, Including all the Reports in the various Courts of England, Scotland, and Ireland ; with a Supplement to January, 1S78. By Henry G. Stevkns and Robert W. Haynes, Law Pulilishers and Booksellers ; Exporters of Law and Miscellaneous Literature ; Foreign and Colonial Literary Agents, &c. &c. In small 4to., price 2s., cloth, beautifully printed, with a large margin, for the special use of Librarians, A CATALOGUE OF THE REPORTS IN THE VARIOUS COURTS OF THE UNITED KINGDOM of GREAT BRITAIN and IRELAND, Etc., Etc. ARRANGED BOTH in ALPHABETICAL and CHRONOLOGICAL ORDER. By STEVENS & HAYNES, Law Publishers. In royal 8vo., 1872, price 2Sj-. , cloth, AN INDEX TO TEN THOUSAND PRECEDENTS in CONVEYANCING. AND TO COMMON AND COMMERCIAL FORMS. Arranged in Alphabetical order with Subdivisions of an Analytical Nature ; together with an Appendix containing an Abstract of the Stamp Act, 1870, with a Schedule of Duties ; the Regulations relative to, and the Stamp Duties payable on. Probates of Wills, Letters of Administration, Legacies, and Successions. By Walter Arthur Copinger, of the Middle Temple, Barrister-at-Law, Author of "The Law of Copyright in Works of Literature and Art." "We cannot close this review of Mr. Copinger's successfully elaborated the work designed by corn- publication better than with the apt quotation with bining a perspicuous order of arrangement with a which he inaugurates it: 'Knowledge is of two j most exhaustive table of contents, and most copious kinds ; we know a subject ourselves, or we know references to precedents. The Index is arranged where we can find information upon it.' ! in alphabetical order, with subdivisions of an analy- " Mr. Copinger has not only designed an Index | tical nature, the latter being made throughout sub- which cannot fail to be of practical use, but has ' servient to the former." — Law Jo»rfiaL In 8vo., 1871, price ^s., cloth, THE LAW OF NEGLIGENCE, Illustrated by the Recent Decisions of the Courts of the United Kingdom and America. By Robert Campbell, Advocate of the Scotch Bar, and of Lincoln's Inn, Barrister-at-Law. In this Essay, the Author reviews old principles in the light of recent decisions ; combining the point of view of the practitioner — noting the latest phase of judicial opinion ; with the attempt to digest and harmonize the law, so that (if possible) new decisions may seem to illustrate old and familiar principles, or that the extent and direction of the change introduced by each decision may be correctly estimated. " I would also refer to some ingenious remarks is about to devote his attention to other subjects, as to the misapplication of the term 'gross neg- which, from the success of his first attempt, we ligence' which arc to be found in a very good book shall expect to see him elucidate considerably. If —Campbell's Law of Negligence." — Mr. Justice however, he should ever find tf.me to expand this IVilles in the case 0/ *' O ppenhi'itn v. White Lion tract on the Law of Negligence into a complete Hotel Co." treatise, we shall expect to find it one of the most " We presume from this being styled the first of satisfactory text-books on English law." — Solicitors' a series of practical Law Tracts, that Mr. Campbell yournal. STEVENS & HAYNES, BELL YARD, TEMPLE BAR, 41 Second Edition in one volume of \,ooo pages, royal Zvo., price 50J., cloth, i»E ivibe: H T ON ON JUDGMENTS AND ORDERS. BEING A TREATISE UPON THE JUDGMENTS, DECREES AND ORDERS OF THE COURT OF APPEAL AND HIGH COURT OF JUSTICE, Chiefly in reference to Actions assigned to the Chancery Division. WITH COMPLETE FORMS OF ORDERS. ^cconti ggtittton, consttfcrafalg enlargclt. By LOFTUS LEIGH PEMBERTON, One of the Registrars of the Supreme Com-t of Judicature ; Author of " The Practice in Equity by way of Revivor and Supplemoit" REVIEWS OF THE FIRST EDITION. "This is a work with an unpretending title, which in reahty contains much more than would naturally be inferred from its title page. . . . The work before us contains, not only a copious and well-selected assortment of precedents, taken in every instance from orders actually made (and with proper references to ttie reports in all instances of reported cases), but also a series of notes, in which the result of the leading cases is succinctly given in a highly-convenient, though somewhat fragmentary, form; by the light of which the practitioner will, in all ordinary cases, be easily able to adapt the opposite precedent to the general circumstances of his own case. We consider the book one of great merit and utility, and we confidently recommend it to the consideration of the Profession." — Solicitors' Journal. " This volume, Mr. Pemberton tells us, is the result of labour commenced so long ago as 1869. It ha.s had the benefit, therefore, of patient care, and patience and care having been backed up by extensive knowledge and keen discrimination, a work has been produced which, whilst it is not likely to bring its author any high reward, niust permanently record his name in legal literature, and prove to the Profession and the Bench a very decided acquisition. " Mr. Pemberton has digested the cases without expressing any opinion as to their soundness or applica- bility—not giving head notes, as too many text writers are fond of doing, without taking the trouble to consider whether the' reporter has correctly epitomised the case, but stating in a few words the effect of each decision. This makes the work a compendium of case law on the various subjects comprehended in it. How comprehensive it is we find it impossible accurately to represent to our readers without setting out the table of contents. We have looked through it more than once ; we have carefully examined the citations, and we have formed the very highest opinion of the plan of the work and its execution and we feel that Mr. Pemberton has placed the entire profession under a lasting obligation." — Law Times'. " A somewhat hasty investigation of the book has disclosed evidence of the conscientious labour, regard for accuracy, comprehensiveness, and practical aim of the Author. At this transitional period, Mr Pemberton's work must prove of great value to the Practitioner in both branches of the Profession harmoniously combining, as it does, those portions of the Old Procedure in Chancery left unaffected by the Judicature Acts and Rules, with that large portion of the New Procedure which the Acts and Rules have, without ambiguity, demonstrated."— /^rzw Magazine and Review. " The operation of the Judicature Acts, with the new rules and orders, not only made an opportunity for, but even necessitated, a new publication of forms of judgments and orders. We may safely say that Mr! Loftus Leigh Pemberton's work, in our opinion, should take its rank among the most valuable publications that have been issued of late. " Mr. Pemberton's position as one of the registrars of the Supreme Court of Judicature would of itself be a guarantee of the genuineness and correctness of his precedents. The title indicates that his work contains forms of judgments and orders of the Court of Appeal and High Court of Justice, though we must explain that these are chiefly in reference to actions assigned to the Chancery Division. But the scope of the book goes far deeper and wider than its title would intimate ; the forms, indeed, are very numerous and comprehensive, all such as are likely to be used in the ordinary practice of the Chancery Division being embodied ; but beyond these, and subjoined thereto, the rules and orders with explanator>' notes, and the supplementary treatises on the practice, backed up, in all cases where authorities are needed, by citation of such authorities, compose in themselves a work of paramount importance and of universal utility. A very superficial perusal will satisfy the practitioner that not only all such matters of practice as he coulci reasonably have expected to be embraced in a book of this kind are comprised therein, but also that nothing which ought to have found place therein is omitted. The ordinary forms of judgments and orders, the nucleus of the book, have in most cases been settled and approved by the judges ; still there is plenty of original matter in this book, and the industry displayed and the amount of knowledge of practice embodied are worthy of the highest encomium. Mr. Herbert Jackson, of the Chancery Registrar's office deserves a few words of commendation for an admirable index to the work — a feature of the utmost importance." — Laiu Journal. 42 STEVENS & HAYNES, BELL YAKD, TEMPLE BAS. In one volume, 8vo., 1877, price 16s., cloth, A CONCISE TEEATISE ON THE STATUTE LAW OF THE LIMITATIONS OF ACTIONS. With an Appendix of Statutes, Copious References to English, Irish, and American Cases, and to the French Code, and a Copious Index. By henry THOMAS BANNING, M.A., OF THE INNER TEMPLE, EARRISTER-AT-LAW. " In this work Mr. Banning has grappled with one of the most perplexing branches of our statute law. The law, as laid down by the judicial decisions on the various Statutes of Limitations, is given in thirty- three short chapters under as many headings, and each chapter treats of a sub-division of one of the main branches of the subject ; thus we have ten chapters devoted to real property. This arrangement entails a certain amount of repetition, but is not without its advantages, as the subject of each chapter is tolerably exhaustively treated of within the limits of a few pages. \Ve think that in this respect the author has exercised a wise discretion. So far as we have tested the cases cited, the effect of the numerous decisions appears to be accurately given — indeed, the author has, as we are informed in the preface, 'so far as is consistent with due brevity, employed the ipsissima verba of the tribunal ;' and the cases are brought down to a very recent date The substance of the book is satisfactory ; and we may commend it both to students and practitioners." — Solicitors Journal. "Mr. Banning's 'Concise Treatise' justifies its title. He brings into a convenient compass a general view of ihe law as to the limitation of actions as it exists under numerous statutes, and a digest of the principal reported cases relating to the subject which have arisen in the English and American courts." — Saturday Review. " Mr. Banning has adhered to the plan of printing the Acts in an appendix, and making his book a running treatise on the case-law thereon. The cases have evidently been investigated with care and digested with clearness and intellectuality." — Zaw Journal. In 8vo., 1876, price "Ss., cloth, ' THE TRADE MARKS REGISTRATION ACT, 1875, And the Rules thereunder ; THE MERCHANDISE MARKS ACT, 1862, with an Introduction containing a SUMMARY OF THE LAW OF TRADE MARKS, together with practical Notes and Instructions, and a copious Index. By Edward Morton Daniel, of Lincoln's Inn, Barrister-at-Law. "The last of the works on this subject, that by Mr. Daniel, appears to have been very carefully done. Mr. Daniel's book is a satisfactory and useful guide." — The Engineer. " This treatise contains, within moderate compass, the whole of the law, as far as practically required, on the subject of trade marks. The publication is opportune, the subject being one which must nearly concern a considerable portion of the public, and it may be recommended to all who desire to take advantage of the protection afforded by registration under the new legislation. It is practical, and seems to be complete in every respect. The volume is well printed and neatly got up." — Law Times. In 8vo., 1876, price is., sewed, AN ESSAY ON THE ABOLITION OF CAPITAL PUNISHMENT. Embracing more particularly an Enunciation and Analysis of the Principles of Laiv as applicable to Cri??iinals of the Highest Degree of Guilt. By WALTER ARTHUR COPINGER, of the Middle Temple, Esq., Barrister-at-Law ; Author of "The Law of Copyright in Works of Literature and Art," "Index to Precedents in Conveyancing," " On the Custody and Production of Title Deeds." " We can recommend Mr. Copinger's book as containing the fullest collection we have seen of facts and quotations from eminent jurists, statistics, and general information bearing on the subject of capital punishment." — Manchester Courier. In one volume, 8vo., 1877, price 15^., cloth, A TREATISE ON THE LAW OF REVIEW IN CRIMINAL CASES. WITH A COMIVIENTARY ON TPIE SUMMARY PROCEDURE ACT, 1864, AND THE SUMMARY PROSECUTIONS APPEALS {SCOTLAND) ACT, 1875. WITH AN APPENDIX CONTAINING THE STATUTES ; WITH NOTES AND GASES. By The Hon. HENRY J. MONCREIFF, ADVOCATE. STEVENS & HAYNES, BELL YAUD, TEMPLE BAR. 43 In 8vo., 1877, price 6s., cloth, THE PARTITION ACTS, 1868 and 1876. A MANUAL OF TIIE LAWOFPAETITION AND OP SALE IN LIEU OF PARTITION. With the Decided Cases, and an Appendix containing Decrees and Orders. By W. GREGORY WALKER. OF Lincoln's inn, barrister-at-law, b.a. an "This is a very painstaking and praiseworthy little treatise. That such a work has now been published, needs, in fact, only to be announced ; for, meeting as it does an undoubted requirement, it is sure to secure a place in the library of every equity practitioner We are gratified to be able to add our assurance that the practitioner will find that his confidence has not been misplaced, and that Mr. Walker's manual, compact and inexpen- sive as it is, is equally exhaustive and valuable." — Irish Law Times. " This handy-book contains the above-mentioned Partition Acts, with a manual of the law of partition, D LATE scholar OF EXETER COLLEGE, OXFORD. and of sale in lieu of partition, and with the decided cases and an appendix containing decrees and orders. There are so many actions under the Par- tition Acts, that there is little doubt this small volume, containing as it does not merely references to all the reported cases, but the pith of the deci- sions extracted therefrom, will prove exceedingly useful. The appendix of decrees and orders, taken from the registrar's books kept in the Report Office, will be of great service to solicitors and counsel in settling minutes. Several of the judgments quoted will also help to keep those who have the conduct of partition suits in the right road." — Law Journal. In 8vo., 1875, price 2ij., cloth, A TREATISE on the LAW and PRACTICE RELATING to INFANTS. By ARCHIBALD Of Lincoln's Inn, Esq., Barrister-at-Law " Mr. Simpson's book comprises the whole of the law relating to infants, both as regards their per- sons and their property, and we have not observed any very important omissions. The author has evidently expended much trouble and care upon his work, and has brought together, in a concise and convenient form, the law upon the subject down to the present time." — Solicitors' Journal. " Its law is unimpeachable. We have detected no errors, and whilst the work might have been done more scientifically, it is, beyond all question, a compendium of sound legal principles." — Law Times. " Mr. Simpson has arranged the whole of the Law relating to Infants with much fulness of detail, and yet in comparatively little space. The result is due mainly to the businesslike condensation of his style. Fulness, however, has by no mea:is been sacrificed to brevity, and, so far as we have been H. SIMPSON, M.A., ', and Fellow of Christ's College, Cambridge. able to test it, the work omits no point of anj' im- portance, from the earliest cases to the last. In the essential qualities of clearness, completeness, and orderly arrangement it leaves nothmg to be desired. '' Lawyers in doubt on any point of law or prac- tice will find the information they require, if it can be found at all, in Mr. Simpson's book, and a writer of whom this can be said may congratulate himself on having achieved a considerable success." — La7v Magazine, February, 1876. " The reputation of ' Simpson on Infants ' b now too perfectly established to need any enco- miums on our part ; and we can only say that, as the result of our own experience, we have invariably found this work an exhaustive and trustworthy repertory of information on every question con- nected with the law and practice relating to its subject." — Irish Law Times, July 7, 1877. In 8vo., 1875, price 6s., cloth, THE LAW OONOEENING THE REaiSTEATION OF BIRTHS AKD DEATHS IN ENGLAND AND WALES, AND AT SEA. Being the whole Statute Law upon the subject ; together with a list of Registration Fees and Charges. Edited with Copious Explanatory Notes and References, and an Elaborate Index. By Arthur John Flaxman, of the Middle Temple, Barrister-at-Law. " Mr. Flaxman's unpretenhous hut admi- rable little book makes the dicties of all parties under tJie Act abundantly clear. . . . Lawyers will find the book not only handy, but also instruc- tive and suggestive. To registrars, andall persons engaged in the exectition of the law, tlie book will be invaluable. The index occupies thirty-five pages, and is so full that information on a minute point can be obtained without trouble. It is an index that must have cost the author much thought and time. The statements of what is to be done, who may do it, and -what must not be done, are so clear that it is well nigh impossible for any one who consults the book to err. Those who use ' Flaxman's Regis- tration of Births and Deaths ' will admit that our laudatory criticism is thoroughly merited." — Law Journal. "Mr. Arthur John Flaxman, barrister-at-Iaw, of the Middle Temple, has publi^^hed a small work on ' The Law Concerning the Registration of Births and Deaths in England and Wales, and at Sea.' Mr. Flaxman has pursued the only possible plan, giving the statutes and references to cases. The remarkable feature is the index, which fills no less than 45 out of a total of 112 pages. The index alone would be extremely useful, and is worth the money asked for the work." — Lww Titnes. 44 STEVENS & HAYNES, BELL YARD, TEMPLE BAS. THE LAW OF EXTRADITION. Second Edition, in Svo., 1S74, price i8s., cloth, A TREATISE UPON THE LAW OF EXTRADITION. WITH THE CONVENTIONS UPON the SUBJECT EXISTING BETWEEN ENGLAND AND FOREIGN NATIONS, THE CASES DECIDED THEREON. By EDWARD CLARKK OF LINCOLN'S INN, BARRISTER-AT-LAW, AND LATE TANCRED STUDENT. " Mr. Clarke's accurate and sensible book is the best authority to which the English reader can turn upon the subject of Extradition." — Saturday Rez'iew. " The opinion we expressed of the merits of this work when it first appeared has been fully justified by the reputation it has gained. This new edition, embodying and ex- plaining the recent legislation on extradition, is likely to sustain that reputation There are other points we had marked for comment, but we must content ourselves with heartily commending this new edition to the attention of the profession. It is seldom we come across a book possessing so much interest to the general reader and at the same time furnishing so useful a guide to the lawyer." — Solicitors' Journal. "The appearance of a second edition of this treatise does not surprise us. It is a useful book, well arranged and well written. A student who wants to learn the principles and practice of the law of extradition will be greatly helped by Mr. Clarke. Lawyers who have extradition business will find this volume an excellent book of reference. Magistrates who have to administer the extradition law will be greatly assisted by a careful perusal of ' Clarke upon Extradition.' This may be called a warm comm.enda- tion, but those who have read the book will not say it is unmerited. We have so often to expose the false pretenders to legal authorship that it is a pleasure to meet with a volume that is the useful and unpretending result of honest work. Besides the Appendix, which contains the extradition conventions of this country since 1843, ^^^ have eight chapters. The first is ' Upon the Duty of Extradition ; ' the second on the ' Early Treaties and Cases ; ' the others on the law in the United States, Canada, England, and France, and the practice in those countries." — Law Journal. " One of the most interesting and valuable contributions to legal literature which it has been our province to notice for a long time, is ' Clarke's Treatise on the Law of Extradition.' Mr. Clarke's work comprises chapters upon the Duty of Extradition ; Early Treaties and Cases ; History of the Law in the United States, in Canada, in England, in France, &c., with an Appendix containing the Conventions existing between England and Foreign Nations, and the Cases decided thereon The work is ably prepared throughout, and should form a part of the library of every lawyer interested in great Constitutional or International Questions." — Albany Law Journal. The Times of September 7, 1874, in a long article upon "Extradition Treaties," makes considerable use of this work, and writes of it as '^ Mr. Clarke's useful Work on Extradition." In 8vo., 1876, price Sj., cloth, THE PRACTICE AND PROCEDURE IN APPEALS FROM INDIA TO THE PRIVY COUNCIL. By E. B. MICHELL and R. B. MICHELL, Barristers-at-Law. " A useful manual arranging the practice in convenient order, and giving the rules in forc« in several Courts. It will be a decided acquisition to those engaged in Appeals from India." — Law Times. STEVENS & HAYNES, BELL YARD, TEMPLE BAK. 45 PRACTICE OP CONVEYANCING. In One Volume, 8vo., 1875, price 14^., cloth, Cttle §tth: THEIR CUSTODY, INSPECTION, AND PRODUCTION, Sit ilato, III Cquitp and in 9^attzv0 ot Conbepancing:, Including Covenants for the Production of Deeds and Attested Copies ; with an Appendix of Precedents, the Vendor and Purchaser Act, 1874, &c., &c., &c. By Walter Arthur Copinger, of the Middle Temple, Barrister-at-Law ; Author of " The Law of Copyright " and " Index to Precedents in Conveyancing." " T/iere is no subject 07t which a practical knowledge is more required than that of title deeds ; and this volume supplies a want. Mr. Copi7iger has, in his well-written chapters, entered most fully and thoroughly into the special subject matter of his work, and has accordingly produced a book -vorthy of being used by every careful conveyancer who knows the importance of studying all questions of title." — The Law. "In dealing with ' documentary evidence at law and in equity and in matters of con- veyancing, including covenants for the production of deeds and attested copies,' Mr. Copinger has shown discrimination, for it is a branch of the general subject of evidence which is very susceptible of independent treatment. We are glad, therefore, to be able to approve both of the design and the manner in which it has been executed. "The work opens with a chapter on the custody of title deeds (i) generally, (2) between trustees and cestuis que trust, (3) between mortgagee and mortgagor, and (4) miscellaneous. Chapters II. and III. treat of the production of title deeds at law and in equity. In Chapter IV. the author considers the custody and production of title deeds on a sale, (i) as relates more particularly to the vendor, and (2) as relates more par- ticularly to the purchaser. Chapter V. treats of the non-production of title deeds ; Chapter VI. of the purchaser's right to the title deeds ; Chapter VII. of attested copies ; whilst Chapter VIII., which will prove very useful to conveyancers, deals with covenants for the production of deeds. There is an elaborate appendix containing precedents. " The literary execution of the work is good enough to invite quotation, but the volume is not large, and we content ourselves with recommending it to the profession." — Law Times. " A really good treatise on this subject must be essential to the lawyer ; and this is what we have here. Mr. Copinger has supplied a much-felt want by thecompilation of this volume. We have not space to go into the details of the book ; it appears well arranged, clearly written, and fully elaborated. With these few remarks we recommend this volume to our readers. It may be remarked that there is an appendix added, showing the nature of the evidence required in verification of abstracts, a list of the searches and inquiries which should be made on a purchase, and concluding with a selection of precedents of covenants for production of deeds." — Zaw Journal. In 8vo., 1875, price 9^., cloth, jfo:r]n/es of leases And other forms relating to Land in Ireland ; with an Introduction and Notes. By John Henry Edge, Earrister-at-Law. In 8vo., 1876, price 21s., cloth, LATIN MAXIMS AND PHRASES, COLLECTED FROM THE INSTITUTIONAL WRITERS OF THE LAW OF SCOTLAND AND OTHER SOURCES. WITH TRANSLATIONS AND ILLUSTRATIONS. By JOHN TRAYNER, Advocate. SECOND EDITION. 46 STEVENS St HATNES, BELL TABD, TEMPLE BAB. lu One thick Volume, Zvo., 1874, of nearly One Thousand Pages, price 42i'., strongly bound in Cloth, A MAaiSTEEIAL & POLICE aUIDE: Being: rlje »>tatutc Hato, INCLUDING THE SESSION OF 1874, WITH NOTES AND REFERENCES TO THE DECIDED CASES, KELATING TO THK PROCEDURE, JURISDICTION, and DUTIES of MAGISTRATES AND POLICE AUTHORITIES, IN THE METROPOLIS AND IN THE COUNTRY. With an Introduction showing the General Procedure before Magistrates both in Indictable and Summary Matters. By henry C. greenwood. Stipendiary Magistrate for the District of tlie Staffordshire Potteries; TEMPLE C.'' M A R T I N, Of the Southiuark Police Court. NOTICES OF THE WORK. " For the form of the work we have nothing but commendation. We may say we have here our ideal law book. It may be said to omit nothing which it ought to contain." — Law Times. " This handsome volume aims at presenting a comprehensive magisterial handbook for the whole of England. The mode of arrangement seems to us excellent, and is well carried out." — Solicitors' Joicrnal. " As to the care with which the work has been executed, a somewhat minute exami- nation of three or four of the divisions enables us to speak on the whole favourably." — Solicitors'' 'Journal. " Great pains have evidently been taken in every part of the work to ensure correct- ness ; and this quality, together with that of its great comprehensiveness, can scarcely fail to render this guide to procedure before magisterial and police authorities eminently acceptable to the many classes of persons to whom full and accurate information on the subject it deals with is often of the utmost importance." — Moruiitg Post. " The Magisterial and Police Guide, by Mr. Henry Greenwood and Mr. Temple Martin, is a model work in its conciseness, and, so far as we have been able to test it, in completeness and accuracy. It ought to be in the hands of all who, as magistrates or otherwise, ha'IAGISTERIAL AND POLICE GUIDE: Being the statute Law including the Session of 1874, with Notes and References to the most recently detiiled Cases, relating to the Procedure, Jurisdiction, and Duties of Magi.strates and Police Authorities iii the Metropolis and in the Country. With an introduction showing the Goneral Procedure before Magistrates both in Indictable and Summary ]\Iatters ; and a/ Copious Index to the Whole Work. By Henky C. Gueemwood, Stipendiary Magistrate for tlie District of the Staffordshire Potteries, and Temple C. Maktin, of the Southwark Police Court. " We have here our ideal law book. It may be said to omit nothing which it ought to contain." — Law Tiiuts. In One Volume, Svo, j^rice 25s. cloth, A PRACTICAL TREATISE ON THE LAW RELATING TO THE Bating of PiAilway, Gy\s, Dock, Harbour, Tramway, Bridge, Pikr, ANM) other CORI'OIIATIONS, TO THE PeUEF OF THE PoOR. By J. H. BaLFOUR Bi;o\\'.\e, of the Middle Temple, Barri.ster-at-Law, Author of " The Law of Usages and Customs," " The Law of Carriers," &;c. In Svo, price 12s. cloth, A TREATISE ON THE LAW RELATING TO THE Pi)LLUT10N AND OBSTPUCTION OF WATKUCOUP.SES ; together with a Brief Summary of the various Sources of Rivers Pollution. By Clemkni' Higgins, M.A., F.C.S., Barrister-at-Law, formerly Demonstrator of Chemistry at King's College, London. In Svo, jnice 12s. cloth, THE LAW OF FIXTURES. Third Edition, inckiding the Law under the A(;ri(;i:i.turai. Hoi,uixgs Act, 1875, incorporating the principal American Defisions, and generally bringing the law down to the jnesent time. By Aechihald Bi:iiw.v, M.A. Edin. and Oxon., and B.C.L. Oxon., of the Middle Temple, Barrister- at-Law. In Svo, 2^'>'ice 1 Os. cloth, Tin: ELEMENTS OF ROMAN LAW SUMMARISED. Primarily designed for the use of Students preparing for Examination at Oxford, Cam- briflge, and the Inns of Court. P>y Sev.muuu F. Harris, B.C.L., M.A., of Worcester College, Oxford, and the Inner Temple, liarrister-at-Law. " Mr. Harris's Digest ought to have very great success among law students both in the Inns of Court and the Universities. Jiis Jxiok gives evidence of praiseworthy aqcur^cy and laborious condensation." — Lmc JuartinL L See Catalogue at end of this Volume. ] ; SOUTHERN REGIONAL LIBRARY FACILITY [A Catalogue of New Law Works may be obtaim STEVENS AND HAYNES' LAW PUBLICATIONS. lib 8vo, price 7s. 6d. cloth, THE LAW OF USAGES AND CUSTOMS : a Practical Law Tract. By J. H. Balfour Biiowne, of tlie Middle Temple, Barrister-at-Law Regis- trar to the Hallway Coiiiniissioners, Author of "The Law of Carriers," "The Medical Jilrispriidencc of Insanity," &c. "This is a very elegantly produced volnme, and is written in an extremely scientific and ng^eeable style. As a tract upon a very troublesome department of law it is admirable-tbe prmciples la>d d yn are smmd, the iUustrations are well chosen, and the decisions and. dicta are harmonised so lar as possuue, and distinguished when necessary." — Irhh Law Ti,iies. In 8vo, price 6s. cloth, THE PAETITION ACTS, 1868 & 1876. a Manual of the Law of Partition and of Sale in lieu thereof, with the Cases to the Present Iniie, and an Appendix of Forms of Decrees. By W. Gregory Walker, of Lincoln s Inn, Barrister- at-J^aw. Til, One Volume, 8vo, price 20s. cloth, PEINCIPLES OF THE COMMON LAW. intended for the Use of students and the Profession. By Johnt Lndermaur, Sohcitor, Author of " Epitomes of Leading Cases," and other "Works. " Mr Indermaur has very clear notions of what a law student should be taught to enable him to pass the examinations of the Incorporated Law Society. In this, his last work, the law is stated carelully and accurately, and the book will probably prove acceptable to students."— icz'J Timex. "Mr Indermaurs book will doubtless be found a useful i.8sistant in the legal pupil room, ine statements of the law are, as far as they go, accurate, and have been skilfully reduced to the level of learners. Mr. Indermaur possesses one great merit of an instructor— he is able to bring out the salient points on wide subjects in a telling manner." — Law Journal. In 8vo, price 6s. cloth, LEADING CASES IN CONSTITUTIONAL LAW briefly STATED. With Introduction, Excursuse.s, and Notes. By Ernest C. Thomas, Bacon Scholar of the Hon. Society of Gray's Inn, late Scholar of Trinity College, Oxford. In 8vo, price Ss. elotfi, AN EPITOME OF HINDU LAW CASES, with short foot NOTES, and Introductory Chapters on SOURCES OF LAW, MAEKIAGE, ADOP- TION, PARTITION, AND SUCCESSION. By William Mant Coghlan, Bombay Civil Service, Judge and Sessions Judge of Tanna, and Member of the Juridical Society. In One thick Volume, 8vo,2mce 21s. cloth, ENGLISH CONSTITUTIONAL HISTORY. Designed as a Text Book for Students and others. By T. P. Taswell-Langmead, B.C.L., of Lincoln's Inn, Barrister-at-La\v, late Vineriau Scholar in the University of Oxford, and Tancred Student in Common Law. In 8w, 2»'icc 7s. 6d. cloth, AN EPITOME AND ANALYSIS OF SAYIGNY'S TREATISE ON OBLIGATIONS IN ROMAN LAW. By Archibald Brown, of the Middle Temple, Barrister-at-Law. In Tvjo Volumes, royal Svo, price 70s. cloth lettered, THE L-AW RELATING TO SHIPMASTERS AND SEA- me;^ : Their Appointment, Dutie.s, Powers, Right.s, Liabilities, and Remedies. By Joseph Kay, M.A., Q.C., of Trin. Coll. Cambridge, and of the Northern Circuit; Solicitor-General of the County Palatine of Durham ; one of the Judges of the Court of Record for the Hundred of Salford. Jn One Volume, royal 8vo, price 30s. cloth, CASES AND OPINIONS ON CONSTITUTIONAL LAW, And various points of EHGLISH JURISPRUDENCE, collected and digested from Official Documents and other Sources, with NOTES. By William Forsyth, M.A., Q.C., Standing Counsel to the Secretary of State in Council of -India. [See Catalogue at end of this Volume.]