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 . VAiuma. 1
 
 A TREATISE 
 
 LAW OF DAMAGES.
 
 MAYNE'S 
 
 TREATISE ON DAMAGES. 
 
 FIFTH EDITION. 
 
 JOHN D. MAYNE, 
 
 OF THE INNER TEMPLE, ESQ., BARRISTER-AT-LAW. 
 
 LUMLEY SMITH, 
 
 iF THE INNER TEMPLE, ESQ , ONE OF HER MAJESTV's COUNSEL, 
 
 jr-DGE OF THE WESTMINSTER COUNTV COURT, 
 
 LATE FELLOW oF TRINITV HALL, CAMBRIDGE. 
 
 LONDON : 
 
 STEVENS AND II A Y N E S, 
 
 5^atu ^Jublislicrs, 
 BELL YARD, TEMPLE BAR.
 
 T 
 
 LONDON : 
 BRADBURY, AONEW, & CO. LD., PRINTERS, WHITEFRIARS.
 
 f 
 
 PREFACE TO THE FIFTH EDITION. 
 
 The present Edition has been carel'uUy revised and corrected, 
 and will, it is believed, be found to contain all the English and 
 Irish decisions bearing on the Law of Damages which have 
 been reported since 1884. Many of these are of considerable 
 importance, and are the cause of the growing bulk of the work, 
 which the Editors have done their best to keep in check. 
 
 JOHN D. MAYNE. 
 LUMLEY SMITH. 
 
 February, 1894. 
 
 783364
 
 PKEFACE TO THE FIRST EDITION. 
 
 It can hardly be necessary to apologise for the appearance of a 
 treatise on Damages. The subject is certainly an important, and 
 not a very easy one. The materials are scattered over all our Reports 
 and many of our statutes. Yet, with the exception of the obsolete 
 work by Serjeant Sayer, no Euglish writer has ever thought of 
 collecting them. 
 
 The American treatise, by Professor Sedgwick, has gone far to 
 supply this want. The great merits of his work are too well known 
 to need any commendation from me. Its ability and research will 
 be best appreciated by those who have studied it as minutely as 
 I have done, and I gladly acknowledge the assistance which it lias 
 afforded me. It appeared to me, however, that there was still room 
 for an English work upon the same subject. iMany topics of im- 
 portance to the English practitioner are omitted by Mr. Sedgwick, 
 partly through design, partly on account of the differences that have 
 sprung up between the laws of the two countries. He has, also, 
 naturally given a prominence to American cases, which is hardly 
 satisfactoiy to us, oppressed as we are by the multitude of our own 
 reports, and un\nUing to extend our researches into unknown 
 regions. Since the last edition of his treatise, our own Courts too 
 have been remarkably prolific in decisions upon this branch of the 
 law, and have supplied materials which well deserve a fresh attempt 
 at classification. I have tried to collect every Enghsh case which 
 bore upon the law of Damages ; and have only resorted to American 
 decisions where none of our own were in point. 
 
 One of my great difficulties has been to distinguish between the
 
 Yiii PREFACE. 
 
 risht to recover, and the amount to be recovered. The line which 
 divides these two branches of law sometimes vanishes entirely. The 
 right to sue at all sometimes depends upon the existence of the very 
 circumstances which determine the measure of damages. For in- 
 stance, where the wrong complained of affects the public generally, 
 the particular loss sustained by the plaintiff is the fact which at 
 once gives him a right of action, and gauges the compensation he is 
 to obtain. So in actions against executors, the possibility of obtain- 
 ing any real satisfaction may depend entirely upon the form in 
 which they may be sued, whether in their representative or personal 
 character. In many cases of torts, no measure of damages can be 
 stated at all ; and the only way of approximating to such a measure, 
 is by ascertaining what evidence could be adduced in support of the 
 issue. All this has made many parts of the present work resemble 
 a treatise on the law of Nisi Prius, rather than one exclusively 
 appropriated to Damages. Wherever such divergences appear, I 
 must only beg the reader to attribute them to a difficulty which 1 
 have done my best to surmount. 
 
 That many errors of a much graver nature, both omissions and 
 mistakes, will be discovered, I cannot but expect. For these I must 
 only ask the indulgence of the critic. Those who are best acquainted 
 with the mazes of our law, will be the most ready to pardon me for 
 going astray. 
 
 JOHN D. MAYNE. 
 
 5, Essex Court, Temple, 
 May, 1856.
 
 CONTENTS. 
 
 Table op Cases 
 
 I'AOE 
 
 . xiii 
 
 CHAPTER I. 
 
 Cases in which Damages may be recovered . 
 
 CHAPTER II. 
 
 Nominal Damages 
 
 General Principles in Actions 
 
 on (Jon tracts . . . 
 
 on Torts . . . . 
 Kemoteness of Damage . . 
 
 PACK 
 4 
 
 10 
 44 
 47 
 
 Loss of Profits . . .54 
 Cost of Actions . . . 83 
 
 4. Period for wliich Damages 
 
 may be assessed. , .101 
 
 5. Reduction of Damages . . 109 
 Mutual Credit . . .135 
 
 CHAPTER III. 
 
 1. Damages limited by amount 
 
 claimed 
 
 1. At Common Law 
 1. As Damages. 
 
 142 
 
 2. Liquidated Damages and 
 
 Penalty . . . .146 
 
 CHAPTER IV. 
 
 INTEREST. 
 
 156 
 160 
 
 3. By Statute 
 
 4. On Reversal of Decree 
 
 164 
 168 
 
 CHAPTER V. 
 
 CONTRACTS OP SALE. 
 
 L Contracts for Sale of 
 Chattels. 
 
 1. Actions for price of goods 
 
 received . . . .169 
 
 2. Actions for not accejiting 
 
 goods ..... 170 
 Actions for not accepting 
 stock or shares . . .175 
 
 3. Actions for not delivering 
 
 goods . . . . . 177 
 Actions for not replacing 
 stock or shares . . .184 
 
 4. Actions on Warranty . .190 
 
 IL Contract for Sale of Land. 
 
 1. Actions for Refusal to Con- 
 
 vey 198 
 
 2. Actions for not accepting 
 
 Conveyance . . . . 206 
 
 3. Actions on Covenant for Title 208 
 Actions on Covenant for 
 
 Quiet Enjoyment . . .210 
 Actions on Covenant for 
 
 Further Assurance . .216 
 Actions on Covenant against 
 
 Incumbrances • , .216 
 Actions on Covenant to Re- 
 new 218
 
 CONTENTS. 
 
 1. Work and Labour 
 
 CHAPTER YI. 
 
 PAGE 
 
 . 220 
 
 PAGE 
 
 2. Contracts of Hiring and 
 
 Service . . • • 223 
 
 Debt 
 
 CHAPTER YII. 
 
 233 
 
 CHAPTER YIII. 
 
 Bills of Exchange and Promissory Notes . 
 
 243 
 
 CHAPTER IX. 
 
 CONTRACTS RELATING TO THE TENURE OF LAND. 
 
 1. Actions for Eent . . .254 
 
 2. Actions on Covenant to Ee- 
 
 pair 263 
 
 3. Actionson Covenant to Build 274 
 Actions on Covenant to Mine 275 
 
 4. Actions on Covenant to pay 
 
 Renewal Fine . . . 276 
 
 5. Covenant to Insure . . 276 
 
 6. Covenant to pay Rates . 280 
 
 7. Covenant to deliver up Pos- 
 
 session ..... 281 
 
 8. Covenant not to Assign . 281 
 
 9. Covenant against Obnoxious 
 
 Trades 282 
 
 CHAPTER X. 
 
 CARRIERS. 
 
 I. Actions by Carriers. 
 
 1. For Freight . . . . 284 
 
 2. For Breach of Contract to 
 
 supply Cargo . . . 290 
 
 3. For Detaining Ship . . 295 
 
 4. For Loading Dangerous 
 
 Goods . . . .296 
 
 II. Actions against Car- 
 riers. 
 
 1. For Breach of Contract to 
 
 Carry 296 
 
 2. For Loss or Injury to 
 
 Goods . . . .301 
 
 CHAPTER XI. 
 
 CONTRACTS OF SURETYSHIP. 
 
 I. Guarantees. 
 Actions by Principal Creditor 
 
 against Surety . . .316 
 Actions by Surety against 
 
 Principal Debtor . , 329 
 Actions by Surety against 
 
 Co-surety . . . . 333 
 
 II. Implied Indemnity . 335 
 III. Policies of Insurance. 
 
 1. Life Insurance . . . 342 
 
 2. Fire Insurance . . . 343 
 
 3. Marine Insurance . . . 351 
 
 IV. General Average , 365
 
 CONTENTS. 
 
 XI 
 
 1. Ejectment . 
 
 2. Writ of dower 
 
 CHAPTER XII. 
 
 PAGE 
 
 . 374 
 . 375 
 
 3. Quare Impedit 
 
 PAGE 
 
 . 37& 
 
 CHAPTER XIII. 
 
 1. 
 
 Trover or Conversion 
 
 . 379 
 
 4. Replevin 
 
 . 420 
 
 2. 
 
 Detinue 
 
 . 406 
 
 5. Illegal Distress 
 
 . . 421 
 
 3. 
 
 Trespass to Goods . 
 
 . 407 
 
 
 
 1. Injury to Land 
 
 2. Mesne Profits , 
 
 CHAPTER XIV. 
 
 430 
 439 
 
 3. Injury to Easements 
 
 44a 
 
 CHAPTER XV. 
 
 1. Malicious Prosecution . . 447 
 
 2. False Imprisonment and 
 
 Assault . . . .451 
 
 3. Personal Injuiy caused by 
 
 Negligence . . . . 453 
 
 4. Actions against Sherili' . 456 
 
 5. Actions against Attorney . 464 
 
 6. Actions against Witness . 46& 
 
 7. Defamation . . . 467 
 
 8. Breach of Promise of Mar- 
 
 riage 482 
 
 9. Seduction .... 486 
 10. Adultery . . . . 490 
 
 CHAPTER XVI. 
 
 BREACH OF STATUTORY OBLIGATIONS. 
 
 1. Actions for Damages . . 496 
 
 2. Actions for Penalties . . 499 
 
 By Party aggrieved . 506 
 
 Actions for Penalties — 
 
 By a Common Informer . 507 
 At suit of the Crown . 508 
 
 CHAPTER XVII. 
 
 1. Actions by Executors . .510 
 
 against Executors . 519 
 
 2. By Trustees in Bankruptcy . 532 
 
 3. By Principal against Agent . 537 
 
 4. By Agent against Principal . 548 
 
 CHAPTER XVIII. 
 
 Pleading Special Damage 553
 
 Xll 
 
 CONTENTS. 
 
 CHAPTEE XIX. 
 
 ASSESSMENT OP DAMAGES. 
 
 I. Actions against a single 
 
 Defendant. 
 
 1. Judgment by Confession . 560 
 Eeference to the Master . .561 
 Writ of Inquiry . . . 562 
 
 2. Judgment by Default . . 564 
 
 3. Judgment on Point of Law . 565 
 
 4. Several Claims, where some 
 
 are bad . . . 566 
 
 II. Actions against several 
 
 Defendants. 
 1. Where there is a Verdict 
 
 against all . . . . 568 
 
 2. Where some pay Money into 
 
 Court . . . .571 
 
 3. Where Judgment goes by 
 
 Default against all or 
 some 571 
 
 III. Where greater Dam- 
 
 ages are given than 
 are claimed . . 573 
 
 IV. Double and Treble 
 
 Damages . . . 574 
 V. When an omission by 
 the Jury may be 
 supplied . . 574 
 
 CHAPTER XX. 
 
 POWER OF THE COURT OR JUDGE IN REGARD TO DAMAGES. 
 
 1. Right to Begin 
 
 2. Directing the Jury 
 
 3. Amendment . 
 
 577 
 577 
 578 
 
 Increasing or Abridging the 
 
 Damages . . . .579 
 New Trial . . . . 581 
 
 CHAPTER XXI. 
 
 Damages in Actions for Injunction or Specific Performance . 
 
 591 
 
 INDEX 594
 
 TABLE OF CASES. 
 
 Aaron v. Alexander, 570 
 Abbott V. MacFic, 69 
 
 — V. Parfitt, 525 
 Acatos V. Burns, 296, 302, 382 
 Accomac (The), 360 
 Ackermann v, Ehrensberger, 317 
 Adam v. Newbigging, 198 
 Adams v. Adams and Colter, 493 
 
 — V. Broiighton, 404 
 
 — V. Kelly, 76 
 
 — V. Lancasliire k Yorkshire Ry. 
 
 Co., 70 
 
 ~ V. Midland Ry. Co., 590 
 Adarason r. Jarvis, 550 
 Addison v. Overend, 395 
 African Steam Ship Co. v. Swanzy, 
 
 352 
 Agra & Alasterman's Bank v. Leighton, 
 
 127 
 Ainslie v. "Wilson, 332 
 Aireton v, Davis, 459 
 Aitcheson v. Madock, 464 
 Aitchison v. Lohrc, 360, 361, 363 
 Alder v. Boyle, 549 
 
 — V. Keighley, 113, 536 
 Alers V. Tobin, 303 
 Alexander v. Gardner, 170 
 Alfred v. Farlow, 567 
 Allen V. Allen, 493 
 
 — V. Kemble, 247, 248 
 
 — V. Sugrue, 358 
 Alloway r. Steere, 137 
 AUsop r. Allsop, 479 
 Allum r. Boultbee, 590 
 Alne Holme (The), 295 
 Alsager v. Close, 391 
 
 Alsager v. Currie, 136, 138 
 
 Alston V. Herring, 134 
 
 Alton V. Midland Ry. Co., 511 
 
 Amalia (The), 307, 411 
 
 American Braided Wire Co. v. Thomson, 
 
 54 
 Amor v. Fearon, 224 
 Anderson v. Buckton, 437, 438 
 
 — V. Chester & Holyhead Ry. 
 
 Co., 311 
 
 — V. Oppenheimer, 64 
 
 — V. Passman, 407 
 
 — V. Wallis, 353 
 Andrew v. Hancock, 262 
 Andrews v. Askej% 486 
 
 Angier v. Taunton Paper Co., 398 
 Anglo-Eg. Nav. Co. v. Rennie, 221 
 AnonjTiious, 62, 187, 222, 574, 582, 
 584 
 — V. Phillips, 590 
 
 Anscomb v. Shore, 427 
 Ansett V. Marshall, 65 
 Anthony v. Haney, 108 
 Apothecaries Co. v. Burt, 3 
 
 — V. Jones, 3, 505 
 
 Appleby v. Myers, 221 
 Appleyard, ex parte, 184 
 Apps V. Day, 583 
 Arcedeckne, re, 334 
 Archard v. Hornor, 230 
 Archer r. Williams, 56 
 Arden v. Goodacre, 111, 118, 460, 463 
 Argentino (The), 48, 55, 410 
 Arklow (The), 67 
 Arkwright v. Newbold, 82, 545 
 Armory v. Delamirie, 303, 390
 
 XIV 
 
 TABLE OF CASES. 
 
 ArmsworthiJ. S. E. Ry. Co., 454, 515, 
 516 
 
 Anuytage v. Haley, 583 
 Arnison v. Smitli, 197 
 Arnold v. Suffolk Bank, 186 
 Arnott V. Redfern, 161 
 Arthur, re, 280 
 Ash V. Pouppeville, 233 
 Ashby V. Ashby, 126, 524, 532 
 
 _ V. White, 5 
 Ashdown v. Ingamells, 324, 535, 536 
 Ashley v. Harrison, 60, 474, 478, 557 
 Ashton V. Stock, 388 
 Ashtown, Ld. v. White, 149 
 Aslin V. Parkin, 440 
 Aspdin V. Austin, 226 
 Astley V. Gurney, 137 
 
 _ V. Weldon, 147, 148, 151, 153 
 Atchinson v. Baker, 486 
 Atkins V. Humphrey, 526 
 Atkinson v. Jones, 161 
 
 — V. Lord Braybrooke, 163 
 _ V. Nesbitt, 420 
 
 — V. Ne\ycastle and Gateshead 
 
 Waterworks Co., 3, 502 
 
 — V. Stephens, 304, 370 
 Atkyns v. Kinnier, 152, 153 
 Attack V. Bramwell, 427 
 Atterbury v. Jarvie, 132 
 AttersoU v. Stevens, 434 
 Attorney- General v. Hatton, 574 
 
 _ V. Hull, 467 
 
 — V. McLean, 505 
 
 — V. Tomline, 388, 390 
 Attwoodv. Taylor, 157, 167 
 Atwood V. Sellar, 365 
 
 Augustien v. Challis, 459 
 Auriol V. Thomas, 252 
 Austen v. Willward, 570 
 Austerbury v. Morgan, 241 
 Austin V. Hilliers, 579 
 
 — V. Manchester Ry. Co., 310 
 Avery v. Bowden, 171 
 Ayre v. Craven, 475 
 Azemar v. Casella, 191 
 
 Babbage v. Babbage and Manning, 
 
 472 
 Baber v. Harris, 209 
 Backhouse v. Bonomi, 8, 104 
 
 Backhouse v. Ripley, 369 
 Baddeley v. Earl Granville, 73 
 _ v. Jlortlock, 485, 486 
 Bagnall v. Carlton, 544 
 Bahia & San Francisco Ry. Co., re, 
 
 192 
 Bailey v. Finch, 127, 133 
 
 — V. Johnson, 127, 137 
 Baillie v. Kell, 115, 224, 230 
 Bain v. Case, 162 
 
 — V. Fothergill, 44, 199, 200, 201 
 202, 218 
 B-iinbridge v. Neilson, 357, 358 
 Baker r. Bache, 106 
 
 — V. Brown, 580, 584 
 
 — r. Cartwright, 486 
 
 — V. Davis, 262 
 
 — V. Dewey, 215 
 
 — V. Garratt, 457, 459 
 Baldwin v. L. C. D. Ry. Co., 66 
 Baldwyn and Girrie's case, 579, 580 
 Bales V. Wingfield, 459, 461 
 Bamfield v. Massey, 119, 488, 489 
 Bamford v. Harris, 115 
 
 Banbury Union v. Robinson, 562, 563 
 Bank of Brazil, ex parte, 10 
 Bankart v. Houghton, 107 
 Bann v. Dalzell, 163 
 Bannerman v. White, 191 
 Bannister v. Hyde, 418 
 Barber v. Backhouse, 249 
 
 — V. Brown, 257, 442 
 
 — V. Lesiter, 62, 467 
 Barclay v. Gooch, 330 
 Bardwell v. Lydall, 318 
 
 Barfield v. Loughborough, 158, 163 
 Baring v. Corrie, 128 
 Barker v. Braham, 120 
 
 — V. Dixie, 582, 583, 584 
 
 — V. Green, 460 
 
 — V. Windle, 286 
 Barkly r. Kempstow, 322 
 Barnard v. Gostling, 570 
 Barned v. Hamilton, 176 
 Barnes v. Prudlin, 556 
 
 — V. Ward, 68 
 Burnett, ex parte, 141 
 
 — V. Earl of Guildford, 440 
 Barratt v. Collins, 412, 452 
 Barrett v. Long, 468 
 
 — V. Partington, 561
 
 TABLE OF CASES. 
 
 XV 
 
 Barrow v. Arnaud, 170, 177, 401, 
 
 407 
 Barrow's case, 166 
 Barry v. Croskey, 81 
 
 — V. Rush, 525 
 Bartholomew r. Markwick, 171 
 Bartlett V. Holmes, 110 
 Barton v. Glover, 147, 242 
 Basten v. Butter, 115, 222 
 Batard v. Hawes, 334, 335 
 Batchelor V. Fortescue, 518 
 Bate V. Hill, 488 
 
 — V. Pane, 481 
 Bateman, ex parte, 279, 539 
 
 — V. Lyall, 476 
 Bates r. Hudson, 222 
 Batson v. Donovan, 314 
 Batten v. Wedgwood Coal and Iron 
 
 Co., 541 
 Battishill v. Reed, 107, 436 
 Baxendale v. G. E. Ry. Co., 311, 312 
 
 — V. G. W. Ry. Co., 285 
 
 — V. L. C. L D. Ry. Co., 90, 
 
 91, 99 
 
 — r. London & S. "W. Ry. Co., 
 
 285 
 Baxter i'. Bradbury, 210 
 
 — V. Taylor, 431 
 Bayliss v. Fisher, 412 
 Beal, ex parte, 505 
 
 — V. Marchais, 67 
 Beardmore v. Carrin{i;ton, 587 
 Beasley v. D'Arcy, 131 
 Beattie v. Lord Ebury, 95, 96 
 
 — V. Moore, 585 
 Beaximont v. Greathead, 9, 233, 236 
 Becherr. G. E. Ry. Co., 314 
 Bechervaise v. Lewis, 321 
 Beckham V. Drake, 152, 230, 533 
 Beddallr. Maitland, 122 
 Bedford v. M'Kowl, 486 
 Bedingfield v. Onslow, 431 
 
 Beech v. Jones, 88 
 Beechey v. Brown, 485 
 Beer v. Beer, 259 
 Beestont'. Collyer, 230, 231 
 Behrens v. G. N. Ry. Co., 313 
 Belcher v. Lloyd, 138 
 
 — V. M'Intosh, 269 
 Belfast & Ballymena Ry. Co. v. Keys, 
 
 314 
 
 Bell i\ Bell and Marq. of Anglesey, 
 490 
 
 — V. Cunningham, 542 
 
 — V. Free, 157 
 
 — V. Gt. Northern Ry. Co., 51 
 
 — V. Hayden, 263 
 
 — V. Midland Ry. Co., 46, 445 
 
 — V. Parke, 480 
 
 — V. Puller, 293 
 
 — r. Smith, 371 
 Belshaw v. Bush, 134 
 Belt V. Lawes, 580, 587 
 Bench v. Merrick, 485, 486 
 Benjamin v. Storr, 446 
 Bennett v. Allcott, 438, 587 
 
 — V. Bayes, 428 
 
 — V. Bennett, 479 
 Benson v. Chapman, 354 
 
 — V. Duncan, 303 
 
 — V. Schneider, 293 
 Bentick v. Fenn, 7, 546, 548 
 Bentley v. Fleming, 579 
 Bergheim v. Blaenavon Iron Co., 179 
 Bernina (The), 71, 514, 519 
 Bernstein v. Baxendale, 309 
 Berrington v. Phillips, 168 
 
 Berry v. Da Costa, 482, 483, 486 
 Berton v. Lawrence, 464 
 Best V. Hill, 132 
 Betteley v. Stainsby, 279 
 Bettsu Burch, 146, 147, 237 
 
 — V. De Vitre, 54 
 Bevan, ex parte, 157 
 Bickerdike v. BoUman, 253 
 Bickford r. Page, 209 
 Bieten v. BurriJge, 448 
 Biggins V. Goode, 425 
 Bignell v. Clark, 428 
 
 Billingay v. BiUingay & Thomas, 
 
 494 
 Binks V. S. Yorkshire Ry. Co., 68 
 Bird, Re, 530 
 
 — V. ISrCahey, 221 
 
 — V. Randall, 489 
 Birkett v. Willan, 308 
 Bishop V. Church, 124 
 Bittleston v. Timmis, 135, 137 
 Black V. Baxendale, 300 
 Black k Co.'s case, 129 
 
 Black Prince (The), 409, 410, 411 
 Blackburn v. Smith, 205
 
 XVI 
 
 TABLE OF CASES. 
 
 Bkgraver. Bristol Waterworks Co., 74 
 Blake v. Lawrence, 246 
 _ V. Midland Ry. Co., 515, 516, 
 
 578 
 — V. Phinn, 205 
 Blakesley v. Smallwood, 125 
 Bland v. Bland, 586 
 Blaney v. Hendricks, 160, 162 
 Blatchford v. Cole, 261 
 Bleadeu v. Charles, 88 
 Blofeld V. PajTie, 5 
 Blogg-u. Johnson, 161, 163 
 Bloxam v. Hubbard, 395 
 Blyth r. Carpenter, 185 
 
 V. Fladgate, 464 
 
 _ v. Smith, 98 
 Boast V. Firth, 224 
 Bodily V. Bellamy, 164 
 Bodley v. Reynolds, 393, 394 
 Bois V. Bois, 567 
 Bonafous v. Walker, 462 
 Bonham v. Sturton, 579 
 Bonney v. Seely, 332 
 Boodle V. Cambell, 215, 262 
 Boorman v. Nash, 170 
 Booth V. Briscoe, 453, 471 
 _ V. Clive, 584 
 
 — V. Coulton, 163 
 
 — r. Gair, 363 
 
 — V. Hutchinson, 139 
 Bornmann v. Tooke-, 113, 289 
 Borries v. Hutchinson, 16, 18, 26, 56, 
 
 181 
 
 — V. Ottoman Imp. Bank, 128 
 Borrodailc v. Brunton, 194 
 Boston V. Ansell, 224, 544 
 Bottomley v. Brooke, 126 
 Boulter v. Ford, 572 
 
 — V. Peplow, 335 
 Boulton V. Reynolds, 426 
 Bousfield v. Lawford, 129 
 Bowen v. Hall, 75 
 Bower v. Hill, 443 
 Bowes, re, 527 
 Bowring v. Shepherd, 336 
 Bowyear v. Pawson, 127 
 Boyce v. Bayliffe, 58, 65 
 
 — V. Douglass, 573 
 
 — V. Higgins, 506 
 Boyd V. Fitt, 20 
 
 — r. Mangles, 138 
 
 Boyle V. Brandon, 486 
 Boys V. Ancell, 152 
 — V. Pink, 314 
 Bracegirdle r. Bailey, 480 
 
 _ V. Orford, 44, 438 
 Bradbum v. G. W. Ry. Co., HO, 456, 
 
 517 
 Bradlaugh v. Clarke, 507 
 Bradley v. Millar, 134 
 Bradshaw v. Bennett, 161 
 
 _ V. L. & Y. Ry. Co., 50, 511 
 Brady v. Oastler, 177 
 Braithwaite v. Coleman, 121 
 Bramley v. Chesterton, 97 
 Brandford v. Freeman, 577 
 Brandt v. Bowlby, 302 
 
 _ V. Foster, 210, 215 
 Brangwin v. Perrot, 242 
 Brasfield v. Lee, 106 
 Brass v. Maitland, 296 
 Bree v. Marescaux, 77, 79 
 Brewer v. Dew, 412 
 
 — V. Jackson, 587 
 Brine v. Wilson, 525, 526 
 Bridge v. Wain, 194 
 Bridges v. G. Junction Ry., 67 
 
 — V. Smyth, 120 
 Bridgland v. Shapter, 497 
 Brierly v. Kendall, 396, 413 
 Brigella (The), 365 
 Briggs V. Greinfeild, 572 
 
 Brighton Arcade Co. v. Dowling, 129 
 Brine v. Bazalgette, 470 
 Brinsmead v. Harrison, 405, 573 
 Bristol (Dean and Chapter) v. Jones, 
 
 272 
 Bristowe v. Needham, 127 
 British Columbia Saw Mill Co. v. 
 
 Nettleship, 10, 300 
 Broadhurst, ex parte, 317 
 Brockbank v. Whitehaven Junction 
 
 Ry. Co.. 471 
 Bromley v. Wallace, 118, 492 
 Brook V. Louisiana Ins. Co., 359 
 Brooke v. Bridges, 441 
 
 — V. Clarke, 567 
 
 — r. Stone, 280 
 Broome v. Rice, 575 
 Brotherston v. Barber, 357 
 Broughton's case, 330 
 Brown v. Allen, 569
 
 TABLE OF CASES. 
 
 XVU 
 
 Brown v. Glenn, 41S, 427 
 
 — V. Goodwin, 488 
 
 — V. Haynes, 398 
 
 — V. Jluiler, 178 
 
 — V. Murray, 467 
 
 — V. Royal Insurance Soc, 344 
 
 — V. Seymour, 579 
 
 — V. Somerset and Dorset Ry. Co., 
 
 5 
 
 — V. Stapyleton, 366 
 
 — V. Tibbits, 122 
 
 — V. Wootton, 404, 573 
 Browne v. Amyot, 259 
 
 — V. Price, 280 
 Browning v. Newman, 555 
 Broxham v. Wagstalie, 230, 231 
 Bruce v. Hunter, 157 
 
 — V. Jones, 358 
 
 — r. Rawlins, 581, 586 
 Brunsden v. Humphrey, 102, 103, 107 
 Brunsden's (Bumpsted's) case, 574 
 Bninsdon v. Austin, 401 
 Brunswick (Duke oQ v. Harmer, 472 
 Brunswick v. Slowman, 417 
 
 Brunt V. Midland Ry. Co., 309 
 Bryan v. Clay, 523 
 Buchanan v. Findlay, 43, 139 
 Buckland r. Johnson, 404, 405 
 Buckle V. Bewes, 463, 574 
 
 — V. Knoop, 287, 293 
 Buckley v. Pirk, 527 
 Bullock V. Lloyd, 322 
 Bulman v. Birkett, 122 
 Bulmer v. Bulmer, 514 
 Bumpsted's case, 574 
 Bunbury v. Hewson, 523 
 Bunny v. Hopkinson, 214 
 Burdett v. "Withers, 270 
 Burdon v. Webb, 464 
 Burges v. Nightingale, 582 
 Burgess v. Merrill, 572 
 
 liurmah Trading Corporation r. Misza 
 
 Mahomed, 383 
 Burn V. Morris, 118 
 Burnand v. Rodocanachi, 351 
 Burnett v. Lynch, 326 
 Burrough v. Moss, 123 
 Burrows v. March Gas Co., 72 
 Burton v. English, 369 
 
 — V. Great Northern Ry., 228 
 
 — V. Le Gros, 416 
 M.D. 
 
 Burton v. Pinkerton, 20, 52, 58 
 Bush V. Canfield, 186 
 Bute V. Thompson, 255 
 Butler V. Basing, 303 
 — V. Knight, 464 
 Butt V. G. W. Ry. Co., 310 
 Butterfield v. Forrester, 66 
 Buxton V. Cornish, 220 
 Byne v. Moore, 448 
 
 Byrne r. Mercantile Insurance Co., 361 
 Bywell Castle (The), 67 
 
 Caffrey v. Darby, 538 
 Cahill V. Dawson, 74, 278, 541 
 
 — V. Lond. & N. W. Ry. Co., 314 
 Calcraft v. Lord Harborough, 118, 491, 
 
 493 
 Caldbeck v. Boon, 101, 336 
 Caledonian Ry. Co. r. Carmichael, 161 
 Callwell V. Callwell and Kennedy, 4'J4 
 Calton V. Bragg, 159, 162 
 Cambrian Steam Packet Co., ex parte, 
 
 42, 55 
 Cambridge v. Anderton, 351 
 Cameron v. Smith, 159, 244, 584 
 
 — V. Wynch, 395 
 Camfield v. Bird, 468 
 Campanari u. Woodburn, 521, 549 
 Campbell v. Lewes, 566 
 
 — V. Loader, 440 
 
 — V. Thompson, 304 
 Candy v. Midland liy. Co., 38 
 Canu V. Willson, 81, 83 
 Cannan v. Reynolds, 584 
 Cape Breton Co., in re, 546 
 Capp V. Topham, 551 
 Capper v. Forster, 287, 288 
 Capron v. Caprou, 260 
 Cardozo v. Hardy, 240 
 
 Carmichael v. Waterford and Liineri.;k 
 
 Ry. Co., 45 
 Carnes v. Nesbitt, 153 
 Carpenter v. Wall, 439 
 Carr, ex parte, 96 
 
 — V. Edwards, 162 
 
 — V. Lancashire Ry. Co., 310 
 
 — V. Roberts, 324 
 Carstairs v. Taylor, 64 
 Carter v. Carter, 262 
 Caruthers v, Graham, 562 
 
 b
 
 xvm 
 
 TABLE OF CASES. 
 
 Case V. Davidson, 355 
 Cassaboglou v. Gibb, 543 
 Castellaiu v. Preston, 348, 350 
 Castlcgate S. S. Co. v. Dempsey, 
 
 295 
 Caswell V. Coare, 191, 193 
 
 — V. Wendell, 213 
 Cator V. G. W. Ins. Co., 52, 362 
 Cattley v. Arnold, 259 
 Cation V. Bennett, 269 
 
 — V. Wyld, 592 
 Cavendish Bentinck v. Fenn, 546, 
 
 548 
 Cavendish V. Geaves, 133 
 Cawdor (Lord) v. Lewis, 131, 442 
 Chadwick v. Trower, 566 
 Chalie v. Duke of York, 160, 162 
 Chalmers v. Shackell, 479 
 Chamberlain v. Boyd, 478 
 
 — V. Chester & Birkenhead 
 
 Ry. Co., 496 
 
 — V. Williamson, 513 
 Chambers v. Caulfield, 491, 585 
 Chandler v. Doulton, 423 
 
 — r. Parkes, 572 
 Chapel V. Hickes, 115, 222 
 Chapman v. Benson, 354 
 
 — V. Piawson, 577 
 Charles v. Altin, 134, 278, 540 
 Charlton v. Driver, 276 
 
 — V. Watton, 480 
 Charrington v. Laing, 152 
 Cherry V. Thompson, 104, ]71 
 Chesternian r. Lamb, 193 
 Cheveley v. Morris, 142, 574 
 Child V. Stenning, 212 
 Childers v. Wooler, 418, 419 
 Chilton V. Cariington, 406, 568 
 Chilvers v. Greaves, 585 
 Chinery v. Yiall, 398 
 
 Chinn v. Morris, 119 
 
 Cliinnock v. Marchioness of Ely, 205 
 
 Chippendale v. Tomlinson, 536 
 
 Christy v. Row, 286, 289 
 
 Churcher v. Stringer, 160 
 
 Churchward r. The Queen, 225, 227, 
 
 228, 229 
 City of Peking, 411 
 Clapham v. Shilhto, 96 
 Clare V. Maynard, 191, 195 
 Clarence (Tiie), 410 
 
 Claridge v. South Staffordshire Tram 
 
 way, 397 
 Clark, ex parte, 230 
 
 — V. Chambers, 69, 74 
 _ V. Cort, 131, 132 
 
 — V. Newsam, 45, 412, 437, 453, 
 
 569 
 _ V. Nicholson, 383, 419 
 
 — V. Pinney, 186 
 Clarke v. Bennett, 558 
 
 — V. Bradlaugh, 508 
 _ v. Clarke, 494 
 
 — r. Fell, 121 
 
 _ V. Holford, 387, 391, 407 
 
 — V. Ramuz, 433 
 
 — r. Roe, 566 
 
 — V. Seton, 242 
 
 — V. Tipping, 530 
 Claxton V. Claxton, 5 
 Clegg V. Dearden, 103, 437 
 Cleland, ex parte, 121 
 Clement v. Lewis, 575 
 
 Cle worth v. Pick ford, 115 
 Clifford (Lord) v. Watts, 255 
 Clifton V. Hooper, 459, 460 
 Cline's estate, re, 260 
 Clough V. Bond, 530 
 Clow V. Brogden, 268, 269 
 Clulow, ex parte, 259 
 Cobb V. Carpenter, 258 
 
 — V. Gt. Western Ry. Co., 48, 49> 
 Cochrane v. Green, 127, 132 
 
 Cock V. Ravie, 329 
 
 Cockburn v. Alexander, 237, 288, 290 
 
 — V. Edwards, 84, 448, 464 
 Cocke V. Jennor, 568, 573 
 Cockerell v. Van Diemen's Land Co., 
 
 179 
 Coggs V. Bernard, 312 
 Cole V. Meek, 292 
 
 — V. Sims, 147 
 Coles V. Bristowe, 176 
 
 Collard v. South Eastern Ry. Co., 15, 
 
 26, 300, .301 
 Collen V. Wright, 94, 95, 337 
 Colley . Streeten, 264 
 CoUinge v. Heywood, 321, 322 
 Collingridge v. Royal Exchange Assur- 
 ance Co., 350 
 Collins V. Cave, 62, 74 
 — V. Crouch, 529
 
 TABLE OF CASES. 
 
 XIX 
 
 Collins V. Jones, 136 
 
 — V. Martin, 250 
 
 — V. Middle Level Commissioners, 
 
 72 
 
 — V. Price, 230 
 
 — v. Rybot, 562 
 
 Columbian Insurance Co. v. Asliby, 370 
 
 Columbus (The), 409 
 
 Commercial Bank of Australia, re, 252 
 
 Compere (Lee) v. Hicks, 440 
 
 Comyn v. Comyn and Humphreys, 490 
 
 Concanen v. Lelhbiidge, 457 
 
 Connop V. Levy, 117 
 
 Connor v. Bentley, 420 
 
 Consett (The), 410 
 
 Constable v. Constable, 260 
 
 Cook V. Beal, 579, 581 
 
 — V. Enchmarcli, 375 
 
 — V. Field, 468 
 
 — V. Fowler, 160, 161 
 
 — V. Harris, 440 
 
 — V. Hartle, 118, 391 
 
 — V. Hopewell, 236 
 Coombe v. Sansom, 391, 400 
 Cooper V. Shepherd. 403 
 
 — V. Waldegrave, 247, 248 
 -^ V. Whittingham, 504 
 
 Coppin V. Craig, 128 
 
 — V. Walker, 128 
 Corkery v. Hicksou, 585 
 Corner v. Shew, 524, 525, 526 
 Comforth v. Rivett, 121 
 Cornish v. Cieife, 268 
 Cornwall v. Richardson, 450, 470 
 Corry v. G. W. Ry. Co., 62 
 Cort V. Ambergate Ry. Co., 172 
 Cortelyou v. Lansing, 380 
 
 Cory V. Thames Iron Works Co., 27, 35, 
 
 42, 55, 183 
 Cotterell v. Jones, 448 
 Cotton V. Wood, 66 
 Couch V. Steel, 501, 502, 503 
 Cougan V. Baukes, 247 
 Couling V. Coxo, 467 
 Coulthurst V. Sweet, 287 
 Cousins V. Paddon, 115, 222 
 Coventry v. G. E. Ry. Co., 22 
 Coward v. Gregory, 263, 272, 274 
 Cowell V. Edwards, 334 
 Cowing V. Cowing, 494 
 Cox V. Burbidge, 62, 63 
 
 Cox V. Glue, 433 
 
 — V. Henry, 210 
 
 — V. Leech, 113 
 
 — V. Rodbard, 241 
 
 — V. Walker, 191 
 Cram v. Aiken, 369 
 
 Crane v. Hummerstone, 568 
 
 Cranston v. ]\Iar.sliall, 195, 299 
 
 Craythorne v. Swinburne, 334, 335 
 
 Creevy v. Carr, 481 
 
 Crepps V. Durden, 505 
 
 Cressy v. Webb, 572 
 
 Cripps V. Smith, 251 
 
 Crisdee v. Bolton, 147 
 
 Crockford v. Winter, 162 
 
 Croft (Lady) v. Lyndsey, 530 
 
 Crofton V. Poole, 536, 537 
 
 Crofts V. Beale, 249 
 
 Cromnielin v. Donegall, 321 
 
 Croskill V. Bower, 157 
 
 Crosse v. Smith, 530 
 
 Crossfield v. Such, 407 
 
 Crouch V. G. N. Ry. Co., 52, 285, 298 
 
 — V. L. & N. W. Ry. Co., 285, 
 303 
 Crowder v. Long, 459 
 Crowhurst v. Amersham Burial Board, 
 
 64 
 Crowther v. Ranisbottom, 42-5 
 Crumble v. Wallsend Local Board, 104 
 Cuckson V. Stones, 224 
 Cuming v. Sibly, 3, 590 
 Gumming v. Bedborough, 262 
 Curling v. Evans, 460 
 Curtis V. Hannay, 191 
 Cussons V. Skinner, 224 
 Cutler V. Close, 115 
 Cutlers Company v. Hurslcr, 237 
 Cutter V. Powell, 224 
 Czech V. General Steam Navigation 
 
 Co., 311 
 
 Da Costa v. ISTewnham, 361, 364 
 Dakint). Oxley, 119,287, 2S9 
 Dalby v. India and London Life As- 
 surance Co., 343 
 Dalton V. S. E. Ry. Co., 517, 518 
 Daly V. Dublin, Wicklow & Wexford 
 Ry. Co., 511 
 
 h 2
 
 XX 
 
 TABLE OF CASES. 
 
 Daiiclo V. Boden, 253 
 
 Daiigar's Trustees, 464 
 
 Daiiit'll V. Sinclair, 157 
 
 Danube, &c., Rv. Co. v. Xenos, 171 
 
 Darbishire v. Butler, 241 
 
 Darby v. Ousoley, 469 
 
 Darley Main Cull. Co. v. Mitchell, 102, 
 
 103 
 Darnell v. AVillianis, 249 
 Darrell r. Tibbits, 350 
 Davenport v. Rylands, 54, 591 
 Davey v. L. & S, W. Ry. Co., 67 
 
 — V. Mason, 309 
 
 — V. Phelps, 581 
 Davidson v. Gwyniie, 289 
 
 — V. Tulioch, 82 
 Davies v. Humphreys, 330, 333 
 
 — r. Mann, 67 
 
 — V. Penton, 152, 154 
 
 — V. Underwood, 264, 268 
 
 — & Wife V. Solomo!!, 479 
 Davis V. Barker, 246 
 
 — V. Burrell, 280 
 
 — V. Cutbush, 479 
 
 — V. Garrett, 538 
 
 — V. Gonipertz, 561 
 
 — V. Haycock, 176 
 
 — V. Hedges, li'3 
 
 — i: Holdship, 563 
 
 — V. Oswell, 393 
 
 — V. Smyth, 158 
 Davy V. Milford, 356 
 Dawes v. Pinner, 157 
 Dawson v. Collis, 116, 191 
 
 — V. Jlid. Ry., 62 
 
 — V. Jlorgan, 100 
 Day ?'. Brownrigg, 8 
 
 — V. Porter, 109 
 De Bernales v. Wood, 160, 162, 198 
 Deering v. Winchelsea, 334 
 Defries v. Davis, 468 
 De Griillon v. L'Aigle, 562 
 De Hiivilland v. Bowerbank, 160 
 De la Rue v. Stewart, 239 
 Delavergne v. Norris, 217 
 Delegal v. Naylor, 392 
 Delegall v. Highley, 468, 474 
 Delves r. Wyt-r, 579 
 De Mattos v. Saunders, 135 
 De Medina r. Grove, 45 
 — r. Polsou, 255 
 
 Denaby Jlain Coll. Co. v. Manchester, 
 
 S. & L. Ry. Co., 499 
 Denby v. Moore, 262 
 Denew v. Daverell, 115 
 Dengate v. Gardiner, 471 
 Dennett v. Atherton, 216 
 Denoon v. Home & Colonial Assurance 
 
 Co., 359 
 Dent V. Dunn, 163, 246 
 Denton v. G. N. Ry., 299 
 De Roufigny v. Peale, 466 
 Dci'-y V. Handley, 77, 476 
 
 — V. Peek, 197 
 
 De Ruvigne's case, 545 
 De Schwanberg v. Buchanan, 251 
 De Tastett v. Crousillat, 540 
 Dewell V. Marshall, 576 
 Dickenson v. Harrison, 161 
 Dickinson v. G. June. Canal, 443 
 — V. N. E. Ry. Co., 514 
 Dickson V. G. N. Ry. Co., 312 
 
 — V. Lough, 155 
 
 — V. Reuter's Tel. Co., 80, 315 
 
 — V. Swansea Vale Ry. Co., 133 
 Digby V. Atkinson, 267 
 
 Dimech v. Corlett, 146, 147 
 Dimes v. Petley, 553 
 Dingle v. Hare, 195 
 Dix V. Groom, 240 
 Dixon V. Bell, 108 
 
 — V. Fawcus, 96 
 
 — V. Met. Bd. of Works, 64 
 
 — V. Parkes, 234 
 
 — V. Reid, 351 
 
 — r. Smith, 79, 475, 476 
 Dobbs V. G. J. Waterworks, 257 
 Dobson V. Blackmore, 553 
 Dockwray v. Dickenson, 395 
 Dod V. Monger, 428 
 
 Dodd V. H(dme, 430 
 
 — V. Xorris, 119, 488, 489 
 Dodge r. Bartol, 369 
 
 Dods V. Evans, 562 
 Doe V. Davis, 441 
 
 — V. Filliter, 84, 441 
 
 — V. Hare, 84, 441, 442 
 
 — V. Harlow, 438 
 
 — V. Huddart, 86, 441 
 
 — d. Worcester School Trustees v. 
 Rowlands, 263, 268 
 
 Donald v. Suckling, 396
 
 TABLE OF CASES. 
 
 XXI 
 
 Donelly v. Baker, 583 
 
 Doian V. O'Reilly, 163 
 
 Dormer v. Fortescue, 440 
 
 Dcrinont v. Furncss Ry. Co., 497, 499 
 
 Doui,'lass V. Murpliy, 279 
 
 Dowf 11 V. Steam Navigation Co. , 68 
 
 DoAvii V. Piiito, 230 
 
 Dowries v. Back, 184 
 
 Downing v. Butcher, 449 
 
 Dowse V. Coxe, 524 
 
 — V. Gorton, 336 
 Doyle V. Dulfy, 563 
 Drage r. Brand, 238 
 Drake, ex parte, 40.5, 573 
 
 — V. Beckham, 230 
 Dresser v. NorwooJ, 128 
 Dry V. Bond, 238 
 
 Dii Belloix V. Lord Waterpark, 244, 
 
 584 
 Duberley v. Gunning, 118, 492, 585 
 Dublin W. & W. Ry. Co. v. Slattery, 
 
 67 
 Du Bost V. Beresford, 413 
 Ducker v. Wood, 587 
 Duckett V. Satterfield, 292 
 Duckworth, re, 129 
 
 — r. Ewart, 10 
 
 — V. Johnson, 518 
 Dudgeon v. Pembroke, 49 
 Dull V. Mackenzie, 357 
 Duffield V. Scott, 100, 329 
 Dufourcet v. Bishop, 302 
 Dugdale v. Lovering, 336 
 Duncan v. Benson, 370 
 
 — V. Hill, 551 
 Duncombe v. Brighton Club, 165 
 Dunkirk Colliery v. Lever, 177 
 Dunlop V. Grote, 177 
 
 — V. Higgins, 59 
 Dunu V. Large, 441 
 
 — V. Sayles, 226 
 Dutch V. Warren, 186 
 Duthie V. Hilton, 289 
 Dyer V. Best, 508 
 Dyke, ex parte, 137 
 Dyson v. Rowcroft, 351 
 
 Eagle v. Charing Cross Ey. Co., 445 
 Eaglesfield v. Londonderry, 96 
 Eardley v. Price, 231 
 
 Earle v. Holderness, 401 
 
 East of England Hanking Co., re, 245 
 
 East V. Chapman, 479 
 
 Easton v. Pratt, 269 
 
 Eastwood V. Lever, 591 
 
 Easnm v. Cato, 136 
 
 Eaton V. Bell, 157 
 
 Ecclesiastical Commissioners v. N. E. 
 
 Ry. Co., 104 
 Eddowes r. Hopkins, 578 
 Eden v. Ridsdales Ry. Co., 545 
 Edge 1'. Hillary, 577 
 Edgell r. Francis, 587 
 Edgson V. Cardwell, 590 
 Edie V. Kingsford, 220 
 Edmonds r. Challis, 458 
 Edmondson v. Nuttall, 399 
 Edmunds v. Wallingford, 331, 335 
 Edwards v. Bethel, 531 
 
 — V. Crock, 491, 492 
 
 — V. Edwards, 526 
 
 — V. G. W. Ry. Co., 165, 166, 
 
 285 
 
 — V. Hope, 121 
 
 — V. Matthews, 577 
 
 — r. Vere, 162 
 Eichorn v. Le Maistre, 575 
 Elbinger Actien-Gesellschaft v. Arm- 
 strong, 34, 39 
 
 Elderton v. Emmens, 225, 227, 228, 
 
 229 
 Eliot V. Allen, 569 
 Elliot V. Clayton, 537 
 Elliott V. Hall, 83 
 
 — V. Nicklin, 488 
 
 — V. Turquand, 138 
 Ellis V. Chinnock, 193 
 
 — V. Emmanuel, 319 
 
 — V. Loftus Iron Co., 63 
 
 — V. London and S. W. Ry. Co., 67 
 
 — V. Taylor, 427 
 
 Ellyatt V. Ellyatt, Taylor, and Halse 
 
 493 
 Elmes, ex parte, 208 
 Elphinston v. Monkland, 146 
 Elsam V. Faucett, 492, 493 
 Emblen v. Myers, 46 
 Embrey v. Owen, 5, 443, 444 
 Emma Mine v. Grant, 544 
 — V. Lewis, 544 
 
 Emmerson v. Heelis, 199
 
 xxu 
 
 TABLE OF CASES. 
 
 Engelv. Fitch, U, 202, 203, 204 
 
 England v. Marsden, 335 
 
 English Bank of River Plate, re, 10, 
 
 252 
 Englishman (The), 67 
 Entvvisle v. Ellis, 356 
 Ernest v. Brown, 579 
 Essex V. Daniell, 207 
 Ethersey v. Jackson, 239 
 Etherton v. Popplewell, 427 
 Evans v. Brander, 457, 459 
 
 — V, Evans and Bird, 494 
 
 — V. Harlow, 475 
 
 — V. Harries, 474, 475, 557 
 
 — V. Kymer, 250 
 
 — V. Lewis, 399 
 
 — V. Manchester, S. & L. Ey. Co., 
 
 64 
 
 — V. Prosser, 121 
 
 — V. Walton, 489 
 Evelyn v. Raddish, 431 
 Everard v. Hopkins, 65 
 
 Evershed v. L. & N. W. Ry. Co., 305 
 Everth v. Smith, 354 
 Ewbank v. Kntting, 382 
 Exall V. Partridge, 331, 335 
 Exeter (Bp. of) v. Freake, 376 
 Explorer (The), 307 
 
 Fabrigas v. Mostyn, 587 
 Facy V. Lang, 3 
 Fair tj. M'lver, 138 
 Fairman v. Oakford, 231 
 Falvey v. Stanford, 584 
 Farebrother v. Welchman, 133 
 
 — V. Worsley, 328, 329 
 Farmer v. Darling, 449 
 Farnsworth v. Garrard, 115 
 Farnworth v. Hyde, 353 
 Farquhar'j;. Farley, 160, 162, 198 
 
 — V. Morris, 159 
 Fair V. Ward, 158 
 Farrance v. Elkington, 260 
 Farrant v. Barnes, 296 
 
 — V. Olmius, 143, 584 
 Farrell v. Donnelly, 260 
 Farrer v. Nelson, 8, 64 
 Farrow v. Wilson, 224 
 Fawcett v. Cash, 231 
 
 — V. Woods, 210 
 
 Featherston v. Wilkinson, 19, 296, 
 
 298 
 Feize v. Thompson, 7, 580 
 Fell V. Whitaker, 422 
 Fenn v. Harrison, 253 
 Fentum v. Pocock, 250 
 Fenwick ■I'. Robinson, 361 
 Fergusson v. Fyffe, 157 
 Ferris v. Comstock, 195 
 Fetter v. Beale, 102, 106 
 Fe-vings, ex parte, 164 
 
 — V. Tisdal, 231 
 Field V. Jellicus, 405 
 Finch V. Blount, 109, 395 
 
 Finlay v. Cherney, 482, 483, 484, 513, 
 
 520, 521, 522 
 Finnerty v. Tipper, 468, 480 
 Firbank's Executors v. Humphreys, 
 
 341 
 Firth V. Bowling Iron Co., 64 
 Fish V. Kempton, 128 
 Fisher v. Dudding, 164 
 
 — V. Fallows, 333 
 
 — V. Prince, 400 
 
 — v. Val de Travers Asphalte Co., 
 
 90, 92 
 Fitter v. Veal, 472 
 Fitzsimons v. Hrglis, 558 
 Flavell, re, 6 
 Fleetwood r. Taylor, 590 
 Fleming v. Bailey, 507 
 
 — V. Simpson, 251 
 
 — r. Smith, 354 
 Fletcher v. Alexander, 368 
 
 — V. Dyche, 124, 150 
 
 — V. Moore, 259 
 
 — V. Rylands, 64 
 
 — V. Smith, 8 
 
 — V. Tayleur, 10, 13, 42, 55, 
 
 183, 189 
 Flint V. Flerayng, 362 
 Florence v. Di'ayson, 164 
 
 — V. Jeniugs, 164 
 Flower v. Adam, 66 
 Flowers v. S. E. Ry. Co., 309 
 Flureau v. Thornhill, 200, 202, 203, 
 
 204 
 Flying Fish (The), 66, 409 
 Foley V. Addenbroke, 281 
 Foote V. Hayne, 485 
 Forbes v. Aspinall, 359
 
 TABLE OF CASES. 
 
 XXUl 
 
 Ford V. Beech, 134 
 — ex parte, 336 
 
 Forester v. Sec. of State of ludia, 168 
 Forrest v. Ehves, 18i 
 Forsdike v. Stone, 583 
 Forster v. Forster, 494 
 
 — V. Forster and Berridge, 494 
 
 — V. Wilson, 137, 138 
 
 Foster v. Equitable Mutual Fire Ins. 
 Co., 348 
 
 — V. Weston, 159, 160 
 
 — V. Wheeler, 208 
 Fothergill v. Pliillips, 389 
 Foulkes V. Met. Dist. Ry. Co., 82 
 
 — V. Sellway, 486 
 Fountain v. Boodle, 470 
 Foxall V. Barnett, 87 
 France v. Gaudet, 18, 183, 394 
 
 — V. White, 122 
 Francis v. Baker, 110 
 
 — V. Cockrell, 219 
 
 — V. Dodsworth, 122 
 
 — V. Rucker, 252 
 
 — V. Wilson, 242 
 Franconia (The), 519 
 Franklin v. Carter, 262 
 
 — V. S. E. Ry. Co., 517 
 Fray v. Voules, 464, 543 
 Frayes v. Worms, 367, 368 
 Frederick v. Lookup, 3, 590 
 Freeman v. Fairlie, 530 
 
 — V. Price, 590 
 
 — V. Rosher, 417 
 French v. Andrade, 123 
 
 — V. Brookes, 229, 231 
 
 — V. Fenn, 136 
 
 — V. Gerber, 295 
 Fritz V. Hobson, 591 
 Frixione v. TagliafeiTO, 336, 550 
 Frost V. Knight, 104, 171, 173, 175, 229 
 Friihling v. SchrceJer, 162 
 
 Gainsford r. Carroll, 177, 184 
 Gale V. Luttrell, 122, 133 
 — V. Walsh, 252 
 Galsworthy v. Strutt, 153 
 Gandell v. Pontigny, 230 
 Gantt V. Mackenzie, 245 
 Garbutt v. Simpson, 489 
 Garner v. Moore, 280 
 
 Garnett r. Willan, 308 
 Garrett v. Messenger, 3, 505 
 Garrick i'. Jones, 120 
 Gaslight & Coke Co. v. Towse, 201, 213 
 Gathercole v. Miall, 470 
 Gears v. Britton, 475 
 Gee V. Lancashire & Yorkshire Ry. Co., 
 26, 183, 300 
 
 — V. Metrop. Ry. Co., 70 
 
 — V. Pack, 318 
 
 General Credit and Discount Co. v. 
 
 Gle^o- 150 
 General South American Co., re, 252 
 Gen. Steam Nav. Co. i'. British and 
 
 Colonial Steam Nav. Co., 306 
 Gen. Steam Nav. Co. v. ^lann, 66 
 George i\ Clagett, 127 
 George and Richard (The), 518 
 Geraldes v. Donisou, 286 
 Gibbon v. Budd, 109 
 
 — V. Paynton, 314 
 Gibbs V. Cruikshank, 420 
 
 — V. Fremont, 246, 247 
 
 — V. Guild, 104 
 
 — V. Potter, 308 
 
 — V. Tunaley, 583 
 Gibson v. Bell, 136, 139 
 
 — V. Chaters, 449 
 
 — V. Humplirey, 401 
 
 — V. Kirk, 255 
 
 — V. Mayor of Preston, 501 
 
 — V. Sturge, 287 
 Gilbert v. Berkinshaw, 585 
 
 — V. Burteiishaw, 585 
 Gilbertson v. Richardson, 407 
 Giles V. Walker, 64 
 Gillard v. Brittau, 415 
 Gillespie, re, ex parte Reid, 138 
 
 — re, ex parte Robarts, 252 
 Gillett V. Rippon, 100 
 
 Gimbart v. Pelah, 426 
 Girdlestone v. Porter, 438 
 Glaister v. Hewer, 120 
 Glaspoole v. Young, 384 
 Glover v. L. & S. W. Ry. Co., 66 
 Glynn v. Thomas, 423 
 Godefroy v. Jay, 7, 464 
 Godsall V. Boldero, 342 
 Godwin v. Cremer, 234 
 
 — V. Francis, 18, 88, 95, 183, 
 199, 204, 340
 
 Xxiv 
 
 TABLE OF CASES. 
 
 Goldsmid v. Rapliae], 419 
 Gompevtz v. Bavtlett, 253 
 
 — V. Denton, 191 
 Goode V. Goode and Harason, 492 
 Goodman v. Pocock, 229, 231 
 Goodtitle v. Tombs, 440 
 Gordon v. Ellis, 123 
 
 _ u G. W. Ey., 311 
 
 _ V. Swan, 160, 162 
 Gore V. Brazier, 213 
 Gorris v. Scott, 52, 497 
 Gorton v. Gregory, 531 
 Gosbell V. Archer, 198 
 Goslin V. Corry, 105, 472, 473 
 Gotobed v. Wood, 576 
 Gongh V. Farr, 45 
 Gould V. Barratt, 84, 449 
 
 — v. Oliver, 369 
 
 — r. Webb, 224 
 Cower (Lord) V. Heath, 582 
 Grace v. Morgan, 84, 449 
 Grafton v. Armitage, 221 
 Graham v. Allsopp, 137 
 
 — V. Jackson, 170 
 
 — V. Wigley, 491 
 Grainger v. Martin, 352 
 Gramvel v. Pihobotham, 566 
 
 Giand Trunk Ry. Co. of Canada v. 
 
 Jennings, 517 
 Grant v. Coverdale, 49 
 
 — r. Tallmas, 217 
 
 — r. Welchman, 250 
 Grater i'. Collard, 582 
 Gray v, Briscoe, 208 
 
 — V. Fowler, 200, 201, 203 
 
 — V. Seckham, 319 
 Greasly v. Codlin, 446 
 
 Great Indian Peninsular Co. v. Saunders, 
 363 
 
 Great Laxey Mining Co. v. Clague, 
 104 
 
 Great Northern Fishing Co. v. Edge- 
 bill, 499 
 
 Great Northern Piy. Co. v. Shepherd, 
 314 
 
 Great Western Ry. Co. v. Redmayne, 
 
 26, 300, 301 
 
 — V. Rimell, 310 
 
 Greaves r. Ashlin, 175, 179 
 
 Grebert Borgnes v. Nugent, 34, 39, 56 
 
 Green v. Button, 75, 476 
 
 Green v. Eales, 273 
 
 — V. Farmer, 386 
 
 — V. Price, 147 
 
 v. Royal Exchange Assurance 
 
 Co., 353, 355, 359, 360 
 
 — V. Salmon, 526 
 Greening v. Wilkinson, 380, 381 
 Greenland v. Chaplin, 68, 69 
 Greenwood v. Hornse}-, 592 
 Gregory v. Cotterell, 416, 453, 569, 
 
 586 
 
 — V. Duke of Brunswick, 565 
 
 — V. Williams, 472 
 Gregson, re, 125 
 
 — V. M'Taggart, 494 
 
 — -y.Theaker, 494 
 Greville v. Gunn, 317 
 Grey v. Grant, 587 
 Griffin v. Colver, 12, 315 
 
 — V. Scott, 425 
 Griffinhoofe v. Daubuz, 335 
 Griffiths V. Lewis, 567 
 
 — V. Perry, 171, 189, 535 
 Grissell v. Bristowc, 176 
 Grissell's case, 129 
 
 Groom v. Mealey, 137 
 
 — V. West, 139 
 Grosset v. Ogilvie, 509 
 Grounsell v. Lamb, 222 
 
 Guardians of St. Leonard's, Shore- 
 ditch V. Franklin, 508 
 Guest V. East Dean, 257 
 
 — V. Warren, 452 
 Gunter v. Astor, 489 
 Guthrie v. Pugsley, 209 
 Gutteridge v. Munyard, 270 
 Guy V. Gregory, 470, 478 
 Gwilt V. Crawley, 466 
 
 Haddan v. Lott, 478 
 
 Hadley v. Baxendale, 11, 33, 34, 36, 
 
 48, 90, 194, 296, 300, 315, 578, 582 
 Haight V. Heyt, 217 
 Hale V. City of New Orleans, 214 
 Hales V. L. & N. ^Y. Ry. Co., 28, 183, 
 
 300 
 Hall V. Burgess, 258 
 
 — V. Dean, 217 
 
 — V. Stone, 582 
 
 — V. Wright, 486
 
 TABLE OF CASES. 
 
 XXV 
 
 Hallettv. Wigi-am, 303, 370 
 Halliday v. Holgate, 397 
 Hambleton v. A^'eere, 107 
 Hambly v. Trott, 522 
 Hamerr. Kuowles, 106 
 Hamilton v. Magill, 39 
 
 — V. !Meniles, 357 
 
 Hamlin v. G. N. Ry. Co., 18, 20, 299 
 Hammond v. I3ussey, 12, 47, 56, 90, 
 91, 93, 578 
 
 — V. Rogers, 306 
 Hanbury v. Ireland, 106 
 Hancock v. Podmore, 526 
 Hanna v. MQls, 170 
 
 Hanslip v. Padwick, 57, 74, 199 
 Hanson, ex parte, 134j 
 Harbin v. Green, 102 
 Harcourt v. Weeks, 575 
 Hardcastle v. S. Yorkshire Ry. Co., 68 
 Harding v. Carter, 393 
 Hardy t'. Bern, 238, 575 
 Hare v. Rickards, 158 
 — V. Travis, 362 
 Harris v. Arnott, 553 
 Hargreaves v. Hutchinson, 390 
 Harmer v. Cornelius, 224 
 Harper v. Eyles, 442 
 
 — V. Williams, 165, 166 
 Harrap v. Armitage, 323 
 Harries v. Edmonds, 174, 291 
 Harrington v. Biuus, 464 
 
 — V. Coxe, 240 
 
 — V. Hoggart, 162 
 Harris v. Arnott, 585 
 
 — V. Jacobs, 295 
 
 — V. Jones, 270 
 
 — V. Mobbs, 67 
 
 — V. Osbourn, 222 
 
 — V. Scaramanga, 364 
 Harrison v. Bank of Australasia, 365 
 
 — V. Bush, 470 
 
 — V. Cage, 482, 587 
 
 — V. G. N. Ry. Co., 72 
 
 — V. Harrison, 184 
 
 — V. L. B. & S. C. Ry., 312 
 
 — V. Lord Muncaster, 211 
 
 — V. Wright, 144, 242, 301 
 Harrop v. Hirst, 5, 444 
 
 Hart V. Baxendale, 313 
 — V. Frontino, &c.. Gold Mining 
 Co., 192 
 
 Hartleys. Harman, 231 
 
 — V. Herring, 475, 556 
 
 — V. Pehall, 205 
 Hartly, re, 505 
 
 Hartwell v. The Ryde Commissioners, 
 
 500 
 Harvey v. Pocock, 429 
 Hathaway r. Barrow, 84 
 Hatheway v. Newman, 475 
 Havelock v. Geddes, 289 
 Hawkins v. Alder, 590 
 
 — V. Coulthurst, 280 
 
 — V. Harwood, 465 
 
 — V. Kemp, 206 
 
 — V. Plomer, 462 
 
 — V. Sciet, 579 
 
 — V. Twizell, 224 
 Hay's case, 544 
 Hayllar I'. Sherwood, 122 
 Hayter v. Moat, 526 
 Haythorn v. Lawson, 452, 471 
 Hay ward v. Hay ward, 472 
 
 — V. Newton, fiS2 
 Head v. Tattersall, 191 
 Hearnr. S. W. Ry. Co., 313 
 Heaven v. Pender, 81—83 
 Hebdon v. West, 343 
 Heenan v. Evans, 459 
 Hetrord v. Alger, 327, 457 
 Heilbutt V. Hickson, 191 
 Helier v. Casebert, 528 
 Helleu V. Ardley, 242 
 Hellier v. Franklin, 159 
 Hellings v. Young, 581 
 Hely V. Hicks, 390 
 Hemming v. Hale, 463 
 Hemmings v. Gasson, 468 
 Henderson v. London & N. W. Ry. Co., 
 
 309 
 
 — V. S((uire, 97, 281 
 
 — V. Thorn, 263, 267, 274 
 Henkel v. Pape, 315 
 
 Henry v. Earl, 233 
 
 — V. Goldney, 573 
 Henty v. Schroder, 205 
 
 — V. Wray, 211 
 
 Herbert v. Salisbury & Yeovil Ry. Co., 
 147, 150 
 
 — V. Waters, 568, 575 
 Herrick v. Moore, 218 
 Hesse v. Stevenson, 536
 
 XXVI 
 
 TABLE OF CASES. 
 
 Hetherington v. N. E. Ry. Co., 517 
 
 Hewlett V. Cruchley, 585, 587 
 
 Hey V. Wyche, 276 
 
 Heydon's case, 397, 413, 565, 568 
 
 Heywood v. Foster, 3 
 
 Heyworth v. Hutchinson, 191 
 
 Hick V. Raymond, 295 
 
 Hickie v. Rodocanachi, 355 
 
 Hickman v. Haynes, ISO 
 
 Hicks V. Mareco, 162 
 
 — r. Newport Ry. Co., 517 
 Hide, re, 208 
 
 — V. Tliornborough, 430 
 Higgins V. Sargent, 156, 160 
 Higginson v. Weld, 296 
 Higgs V. Assam Tea Co., 133 
 Hilhouse v. Davis, 161 
 Hill V. Balls, 66, 197 
 
 — V. Featlierstonliaugli, 11-3, 223 
 
 — V. Goodchild, 568 
 
 — V. Smith, 112, 536 
 
 — V. South Staff. R}'., 156, 165 
 Hilton V. Fowler, 580 
 
 — V. Woods, 388 
 Hinde v. Liddell, 18, 182 
 Hinton v. Sparkes, 146, 150, 207 
 Hiort V. L. & N. W. Ry. Co., 399 
 Hipgrove v. Case, 592 
 Hirschfield r. Smith, 248 
 Hitchman v. Stewart, 332, 334 
 Hoare v. Crozier, 579 
 
 Hobbs V. Christmas, 253 
 
 — v.L.&L S. W. Ry. Co., 20, 47, 
 48, 49, 299, 301, 578 
 
 Hoblins v. Kimble, 574 
 Hobson V. Bass, 319, 320 
 
 — V. Thellusson, 460 
 
 — V. Todd, 443, 446 
 Hoby V. Built, 466 
 
 Hochster u De Latour, 104, 171, 229 
 Hodges V. Lord Litchfield, 87, 198, 
 
 199, 556 
 Hodgman v. West Midland Hy. Co., 
 
 312 
 Hodgson V. Sidney, 534 
 
 — V. Wood, 321 
 HodsoU V. Stallebrass, 102 
 
 — V. Taylor, 488, 558 
 Hoey V. Felton, 48, 50, 58 
 Hogan V. Page, 159 
 Holbach r. ^\'arne^, 62 
 
 Holcomb v. Rawlyns, 439, 440 
 Holden v. Liverpool Gas Co., 66 
 Holdich's case, 280 
 Holdsworth v. Wise, 357 
 Holford V. Dunnett, 273 
 
 — V. Hatch, 327 
 HoUiday v. Atkinson, 249 
 HoUoway v. Turner, 87, 411 
 Holmes v. Sparkes, 464 
 
 — V. Tutton, 129, 133 
 
 — v. Wilson, 107, 436 
 Holt V. Holland, 376 
 
 — V. Holt, 530 
 
 — V. Scholefield, 566 
 Holtun V. Lotum, 555 
 Holwood V. Hopkins, 77 
 Homfray v. Rigby, 239 
 Honck r. Muller, ISO 
 Hood V. Stallybrass, 550 
 Hooper v. Pope, 579 
 Hopkins v. Grazebrook, 200, 202 
 
 — V. Murray, 327 
 Hopwood V. Schofield, 445 
 
 — V. Thorn, 475 
 
 — V. AVhaley, 528 
 Horn V. Chandler, 106 
 Hornby v. Caldwell, 336 
 Home V. Hough, 297, 558 
 
 — V. Midland Ry. Co., 29, 32, 33, 
 34, 36, 56, 183, 300 
 
 Horner v. Denham, 235 
 
 — V. Flintoff, 154 
 Hornidge v. Wilson, 529 
 Horsford v. Wright, 213 
 Horton v. M'Murtrey, 224 
 Hosking v. Phillips, 430 
 Houghton V. Matthews, 128 
 Houliston v. Smyth, 492 
 Hounsell v. Smyth, 68 
 Howard r. Lovegrove, 86, 100 
 
 — V. Maitland, 208 
 
 — V. Newton, 570 
 
 — V. Woodward, 153 
 Howe V. Macka}', 332 
 
 — V. Smith, 207 
 Howell V. Young, 104, 464 
 Howes V. Martin, 97 
 Huckle I'. Money, 587 
 Hudson V. Nicholson, 107 
 Hudston V. Midland Ry. Co., 314 
 Hughes V. Browne, 422
 
 TABLE OF CASES. 
 
 XXVH 
 
 Hughes r. Graeme, 95, 338 
 
 — V. MacFie, 69 
 
 — V. Queiitin, 408 
 
 — V. Thomas, 440 
 
 Hull V. Gt. Northern Ry., 518 
 Hulme V. Muggleston, 136 
 Hume V. Oldacre, 437 
 Humphreys v. Pratt, 41 S 
 Hunt V. Jones, 556 
 
 — V. Round, 326, 458 
 
 — T. Royal Exchange Assurance 
 
 Co., 353, 354 
 
 — V. Silk, 205 
 Hunter, ex parte, 206 
 
 — V. Fry, 286, 290, 296 
 
 — V. Hunt, 335 
 
 — V. King, 111 
 
 — V. M'Gowen, 308 
 
 — V. "Wilson, 250 
 Huntley v. Bulwer, 223 
 Hurst V. Hurst, 143 
 
 — V. Jennings, 241 
 
 — V. Taylor, 68 
 Hutchins v. Chambers, 423 
 Hutchinson v. ReiJ, 1 70 
 
 — V. York, N. & B. Ry. Co., 
 
 518 
 Huttou V. Ward, 246, 563 
 Huxley v. Berg, 437 
 Hyde v. Cookson, 386 
 Hydraulic Engineering Co. v. McHafSe, 
 
 38, 56 
 
 Ibbett v. De la Salle, 101, 325 
 
 Ibbs V. Richardson, 438 
 
 Icely I". Grew, 207 
 
 Idle V. Roja] Exchange Assurance Co,, 
 
 353 
 luehbald v. "Western Neilgheny Coflfee 
 
 Co., 171, 223 
 Industrie (The), 70 
 Inflexible (The), 409, 410 
 Ingi'am v. Lawson, 105, 472, 473, 474 
 lona (The), 306 
 Ireland v. Johnson, 426 
 Irvine v. Midland Great Western Ry. 
 
 Co., 298 
 Irving V. Clegg, 291 
 
 — V, Greenwood, 118, 485 
 
 — V. Manning, 150, 351, 352, 358 
 
 Isberg V. Bowden, 126, 129 
 
 Isitt V. Railway Passengers' Assurance 
 
 Co., 52 
 Ive V. Scott, 563 
 
 Jack v. Kipping, 139 
 Jackson v. Bowley, 531 
 
 — V. Pesked, 445 
 
 — V. Union Mar. Ins. Co., 353 
 
 — V. Williamson, 579, 580 
 Jacobsohn v. Blake, 428 
 Jacques v. Withy, 120 
 
 Jaffray v. Frebain, 572 
 
 James v. Biddingtou, 46, 481, 494 
 
 — (Lady) v. East India Co., 285 
 
 — V. Kynnier, 131 
 
 — V. Thomas, 241 
 Janson v. Ralli, 356 
 Jaques v. Millar, 201 
 Jarmaine v. Egelstone, 199 
 Jarman v. Hooper, 418 
 Jarvis v. Chappie, 128 
 Jeakes v. White, 205 
 
 Jebsen v. E. & W. India Dock Co., Ill 
 
 Jefl'eries v. Sheppard, 463 
 
 Jefferson v. JefTerson, 431 
 
 Jeffery v. Bastard, 457 
 
 Jeifryes v. Agra & Masterman's 15ank, 
 
 133 
 Jegon V. "Vivian, 338, 390, 435 
 Jenkins V. Biddulph, 84, 464 
 
 — V. Davies, 573 
 
 — V. Jackson, 210 
 
 — V. Jones, 211 
 Jenney v. Brook, 566, 582 
 Jervis v. Tomkinson, 255 
 
 — V. Wolferstan, 336 
 Jesser v. Gifl'ord, 431, 445 
 Job V. Langton, 365 
 
 — V. Potton, 388, 435 
 John V. Bacon, 68 
 
 Johnson, re. Shearman v. Robinson, 
 525 
 
 — V. Bland, 105 
 
 — r. Durant, 160 
 
 — V, Jones, 262 
 
 — V. Johnson, 198, 199 
 
 — V. Lakeman, 120 
 
 — V. Lanes. & Yorks. Ry. Co., 
 
 397
 
 XXVIU 
 
 TABLE OF CASES. 
 
 Jolmson V. Skafte, 336 
 
 — V. Stear, 395, 396 
 
 — V. Upham 427 
 Johnston v. G. N. Ry. Co., 518 
 
 — r. OiT Evving, 8 
 Johnstone v. Hall, 431 
 
 — V. Huddlestone, 261 
 
 — V. Milling, 104 
 Jones V. Adamson, 295 
 
 — V. Bodinner, 575 
 
 — V. Boyce, 53, 70 
 
 — V. Brinley, 352 
 
 — v. Brooke, 88 
 
 — V. Davies, 395 
 
 — V. Dyke, 199 
 
 — V. Gooday, 430 
 
 — V. Harris, 572 
 
 — V. Heavens, 153 
 
 — V. Hibbert, 250, 251 
 
 — V. Just, 191 
 
 — V. Lewis, 530, 558 
 
 — V. Mackie, 481 
 
 — V. Moore, 131 
 
 — V. Mossop, 133 
 
 — V. Ogle, 260 
 
 — V. Orchard, 333 
 
 — V. Hyde, 253 
 
 — V. Simes, 514 
 
 — V. Sparrow, 589 
 
 — V. AVilliams, 100, 329 
 Josephs V. Pebrer, 551 
 Josling V. Irvine, 178 
 Joule V. Taylor, 4 
 Jourdain v. Palmer, 559 
 Joyner v. AVeeks, 267, 268 
 Julius V. Bishop of Oxlord, 496 
 
 Kaltenbach v. Lewis, 128 
 
 — V. Mackenzie, 354 
 
 Karberg's case, 168 
 Kearsley v. Oxley, 523 
 Keeble v. Hickeringill, 8 
 Keen v. Priest, 427. 429 
 Keene v. Dilke, 418 
 
 — V. Keene, 244 
 Kellock V. Enthoven, 336 
 Kelly V. Partington, 60, 478 
 
 — V. Sherlock, 480, 584 
 Kemble v. Farren, 147, 151 
 
 Kemp V. Balls, 234 
 
 — v. Finden, 89, 334 
 
 — V. Halliday, 352, 365 
 Kendall v. Hamilton, 404 
 Kendillon v. Maltby, 77, 78, 476 
 Kendrick v. Lomax, 253 
 Kennedy v. AVhitwell, 381 
 Kerbey v. Denby, 416 
 Kerfoot v. Marsden, 482 
 Kernochan v. New York Bowery Fire 
 
 insurance Co., 348 
 Kerr v. AVillan, 308 
 Keyse v. Keyse, 491, 493, 494 
 Kidd V. AValker, 164, 246 
 Kiddle v. Lovett, 83 
 Kitlgill V. Moore, 445 
 Kidston v. Em])ire Marine Insurance, 
 
 363 
 Kilmore v. Abdoolah, 582, 5S4 
 Kilvington v. Stevenson, 125 
 Khider v. Butterworth, 137 
 King V. England, 425 
 
 — V. Hoare, 404, 573 
 
 — V. Jones, 216, 512 
 
 — V. Norman, 317 
 Kingdou v. Nottle, 208, 210, 512 
 Kingham v. Robins, 114 
 Kingston v. M'Intosh, 162, 365 
 Kinnerley i;. Hossack, 122 
 Kinnersley v. Mussen, 241 
 Kinney v. AA''atts, 213 
 
 Kirk V. Todd, 521 
 
 Knight V. Egerton, 425, 578, 582 
 
 — V. Faith, 354, 362 
 
 — V. Gibbs, 61, 478 
 
 — i\ Hughes, 100, 334 
 
 — V. Quarles, 511 
 
 Kynaston v. Mayor of Shrewsbury, 575 
 
 Lacey v. Hill, 550 
 
 Lackington v. Combes, 138 
 
 Lacon r. Barnard, 405 
 
 Lacy V. Reynolds, 575 
 
 Ladd V. Thomas, 427 
 
 Ladywell Mining Co. v. Brookes, 546 
 
 Laing v. Stone, 244, 584 
 
 Laird v. Pim, 206 
 
 Lamb v. AValker, 104 
 
 Lambarde'z;. Older, 125, 133 
 
 Lambkin v. S. E. Ry., 585
 
 TABLE OF CASES. 
 
 XXIX 
 
 Lamert v. Heath, 176 
 
 Lamond v. Davall, 170 
 
 Lament v. Crook, 466 
 
 Lampon v. Corke, 216 
 
 Lancashire Waggon Co. v. Fitz-Hugh, 
 460 
 
 Lancashire and Yorkshire Ry. Co. r. 
 Gidlow, 168 
 
 Lancashire and Yorkshire Ry. Co. v. 
 Greenwood, 114 
 
 Landsberger v. The Magnetic Tele- 
 graph Co., 315 
 
 Lane v. Cotton, 315 
 
 — V. Hill, 7 
 
 — V. MuUins, 562 
 Langridge v. Levy, 81 
 Langton v. Waite, 185 
 Larios v. Gurety, 7, 20, 56 
 Latham v. Latham and Gethin, 494 
 Latour v. Latour and Weston, 492 
 Laurent v. Chatham Fire Insurance 
 
 Co., 345 
 Lavery v. Parsell, 592 
 Law V. Indisputable .Vssurance Co., 343 
 
 — V. Local Board of Redditch, 150 
 Lawrence r. Jenkins, 62 
 
 T^awvie v. Dyeball, 566 
 
 Lawson v. Storie, 574 
 
 Lax V. Corporation of Darlington, 70 
 
 Lazarus v. Cowic, 250 
 
 Lea t7. Whitaker, 150 
 
 Leach r. Thomas, 566 
 
 I^eather Cloth Company v. Hirschfield, 
 
 54 
 lebel V. Tucker, 248 
 Le Blanche v. L. k X. W, Ry. Co., 19, 
 
 299 
 Le Cheminant r. Pearson, 363 
 Lechmere v. Fletcher, 573 
 — V. Hawkins, 121 
 Le Conteur v. London & S. W. Ry. Co. , 
 
 309 
 Lediard v. Boucher, 109 
 Le Lievre v. Gould, 81 
 Lee V. Ayr ton, 464 
 
 — V. BuUen, 138 
 
 — V. Huson, 468 
 
 — V. Munn, 162 
 
 — V. Riley, 63, 64 
 
 — V. Rook, 329 
 
 Leeds v. Cook, 118, 485, 486 
 
 Lees V. Patterson, 122 
 Leeson v. Smith, 581 
 Lefanu v. Malcolmson, 471 
 Leftley r. Mills, 253 
 Leggett V. Cooper, 114 
 Leggott V. G. N. Ry. Co., 511 
 Leigh V. Lillie, 144 
 
 — V. Paterson, 178 
 
 — V. Thornton, 528 
 Leighton v. Wales, 147 
 Leith V. Pope, 587 
 
 Le Loir v. Bristow, 115 
 
 Lenox v. United Insurance Co., 369 
 
 Lepla V. Rogers, 282 
 
 Lester v. Lazarus, 122 
 
 Lethbridge v. Mytton, 7, 217, 280, 321, 
 
 333, 584 
 Lever idge v. Forty, 561 
 Levy V. Hale, 460 
 Lewis r. Campbell, 214 
 
 — V. Cosgrave, 251 
 
 — V. ]Morland, 469 
 
 — V. Peachey, 106 
 
 — V. Peake, 97, 556 
 
 — V. Rucker, 356, 358, 362 
 
 — r. Smith, 325 
 
 Lillie r. Doubleday, 23, 538 
 Linford v. Lake, 119 
 Lintott, ex parte, 166 
 Lion (The), 306 
 Lishman v. Christie, 303 
 Lister r. Ferryman, 449 
 
 — V. Stubbs, 544 
 Livie V. Janson, 363 
 Livingston v. Douglas, 563 
 Livingstone v. Rawyards Coal Co., 3S9, 
 
 390 
 Llansamlet Tin Plate Co., 180 
 Lloyd r. Morris, 567 
 
 — V. Mostyn, 86 
 Lloyds V. Harper, 6 
 Llynvi v. Brogden, 389, 390 
 Lock V. Ashton, 452, 582 
 
 — V. De Burgh, 259 
 
 — V. Furze, 211, 214 
 Lockier v. Paterson, 513 
 Lockley v. Pye, 419 
 Loder v. Kekule, 191 
 Lofft V. Denis, 255 
 Logan V. Cox, 272 
 
 — V. Hall, 99, 327
 
 XXX 
 
 TABLE OF CASES. 
 
 Lolire V. Aitclnson, 363 
 
 Lombard v. Kennedy, 264 
 
 London, Bomb. & Med. Bk. v. Narra- 
 
 way, 135, 138 
 London, C. & D. Ry. v. S. E. Ry. Co., 
 
 159, 165 
 London & N. W. Ry. Co. v. Glyn, 348 
 London & South Western Ry. Co. v. 
 
 James, 305 
 London, Tilbury & Southend Ry. Co. 
 and Truytees of Gowers Walk 
 Schools, in re, 48, 445 
 Long V. Orsi, 113 
 Lonsdale (Lord) v. Church, 242 
 Loosemore v. Radford, 8, 321, 391 
 Loring v. Davis, 336, 552 
 
 — V. Warburton, 427 
 Loton V. Devereux, 84, 411 
 Love v. Honeybourne, 525 
 Lovelock V. King, 221 
 Lowden v. Goodricke, 555 
 
 — V. Hierons, 466 
 Lowe V. Booth, 308 
 
 — V. Harewood, 556 
 
 — V. Peers, 143, 144, 145, 242 
 
 — V. Steele, 233 
 Lowfield V. Bancroft, 568 
 
 Lowndes v. Earl of Stamford and War- 
 rington, 232 
 
 Lozano v. Janson, 353, 357 
 
 Lucas V. Godwin, 222 
 _ v. Tarleton, 422 
 
 Lucey v. Ligram, 306 
 
 Lucy V. Levington, 512 
 
 — V. Mouflet, 191 
 Lukin V. Godsall, 430 
 Lumley v. Gye, 60, 75, 476 
 Luxmore v. Robson, 263 
 Lyddall v. Dunlapp, 527 
 
 Lydney and Wigpool Iron Co. v. Bird, 
 
 545 
 Lygo V. Newbold, 69 
 Lynch v. Dalzdl, 345 
 
 _ V. Knight, 76, 477, 479 
 
 — V. Nurdin, 69 
 Lyne v. Lyne and Blackney, 495 
 Lynne v. Moody, 422 
 Lynvi Coal & Iron Co., ex parte, in 
 
 "re Hyde, 208 
 Lyons v. Martin, 417 
 
 Mabeklet v. Robins, 161 
 MacAndrew v. Electric Telegraph Co., 
 
 315 
 Mc Arthur v. Cornwall, 436 
 M'Arthur v. Lord Seaforth, 184, 185 
 M'Cance v. London & N. W. Ry. Co., 
 
 314 
 M'Carthy v. Abel, 354, 358 
 M'Clure v. Dunkin, 163, 242 
 M 'Collin V. Gilpin, 341 
 Macdonald v. Carington, 126, 520 
 Matdougal -y. Knight, 103 
 McEwan v. Crombie, 122 
 M'Grath v. Bourne, 585 
 M'Intyre v. Belcher, 226, 227 
 M'Kay's case, 545 
 M'Kenna v. Harnett, 331 
 Mackill V. Wright, 285 
 Maclean v. Dunn, 170 
 
 — V. Fleming, 290 
 M'Leodi;. M'Ghie, 393, 400 
 Macleod v.Wakley, 468 
 M'Loughlin -y. Welsh, 475, 557 
 McMahon v. Field, 22, 49 
 M'Manus v. Lancashire, &c., Ry. Co., 
 
 312 
 Macnaniara 1). Vincent, 264 
 Macqueen v. G. W. Ry. Co. , 310 
 Macrae v. Clarke, 463 
 Macrow v. G. AV. Ry. Co., 314 
 Madras Ry. Co. v. Zemindar of Carvait- 
 
 nugger, 64 
 Magee v. Lavell, 147, 152, 153 
 Magennis v. Dempsey, 526 
 Mainwaring v. Brandon, 97, 539 
 Makinson v. Rawlinson, 401 
 Malachy v. Soper, 474, 475, 553 
 Maiden i;. Fyson, 84, 199 
 i\Iallet V. Ferrers, 579 
 Mallough V. Barber, 539 
 Manchester Bonded Warehouse v. Carr, 
 
 255 
 Manchester, Sheffield, & Lincolnshire 
 Ry. Co., and L. & N. W. Ry. Co. v. 
 Brooks, 123 
 Mangan v. Atherton, 69 
 Manley v. Boycot, 250 
 Mansell v. British Linen Co., 190 
 
 — V. Clements, 549 
 Mansfield (Earl of) v. Ogle, 163 
 Manton v. Bales, 582
 
 TABLE OF CASES. 
 
 XXXI 
 
 Mautz V. Goring, 270 
 
 ardall v. Thellusoii, 126 
 Margetson v. Glynn, 299 
 Markby, re, 259 
 Markham v. Middleton, 582 
 Marler v. Ayliffe, 572 
 Marriott v. Cotton, 263, 264 
 Harris v. !Marris, 493 
 Harsh v. Jones, 161 
 Marshall, ex parte, 89 
 
 — V. Broadlmrst, 521 
 
 — V. Poole, 158 
 
 — V. Y. N. & B. Ry. Co., 82 
 Marsham v. Buller, 582 
 
 ^larston v. Phillips, 405 
 Martin v. Crokatt, 354 
 
 — V. Great Indian Peninsula Ry. 
 
 Co., 311 
 
 — v. Great Northern Ry. Co., 66 
 
 — V. Porter, 3S6, 387, 435 
 
 — V. Roe, 523 
 
 — V. "Winder, 122 
 Martineau v. Kitching, 348 
 Mary's case, 553 
 
 Marzetti v. Williams, 5, 326, 543 
 Mason v. Barker, 1 08 
 Maspons v. ilildred, 128 
 Massey v. Banner, 530 
 
 — V. Sladen, 396 
 Masters v. Farris, 427, 574 
 Masterton v. Mayor of Brooklyn, 55, 
 
 171 
 Mathew v. Sherwell, 392 
 Iklatson V. Baird, 62 
 Jilatthew V. Osborne, 440 
 JIatthews v. Discount Corporation, 
 
 539 
 Mauricet v. Brecknock, 583 
 Maw v. Jones, 232 
 — V. IJlyatt, 130 
 Maxted v. Paine, 176 
 Maxwell v. Jameson, 330 
 May r. Brown, 119, 480 
 ^laydew v. Forrester, 539 
 Mayhew v. Fames, 308 
 — V. Nelson, 309 
 Maylara v. Norris, 144, 242, 301 
 Mayor of Salford v. Lever, 538, 544 
 Mead V. Bashford, 122 
 
 — V. Daubigny, 468 
 Mears v. Griffin, 584 
 
 Mears v. London & South Western R}'. 
 
 Co., 398 
 Medway Navigation Co. r. Eurl of 
 
 Romney, 5 
 Meek v. Wendt, 340 
 Mellersh v. Brown, 161 
 Mellish V. Andrews, 351, 355 
 
 — V. Simeon, 252 
 Mellona (The), 409 
 ilembery v. G. W. Ry. Co., 73 
 Memorandum, 442 
 
 Menzies v. North British Insurance 
 
 Co., 348 
 Mercer v. Graves, 121 
 
 — V. Irving, 153 
 
 — V. Jones, 380 
 
 — V. Whall, 224, 577 
 Merchant Banking Co. v. Maud, 168 
 Merchant Shipping Co. v. Armitage, 
 
 167, 289 
 Merest v. Harvey, 44, 438, 586 
 ileiryweather v. Nixan, 112 
 Mersey Docks v. Llaneilian, 256 
 Mersey Steel k, Iron Co. v. Naylor, 
 
 139,' 171, 180 
 Mertens v. Adcock, 170 
 Metcalf r. London, B. & S. C. Ry. Co., 
 
 310 
 Metropolitan Association v. Fetch, 445 
 Metropolitan Ry. Co. v. Jackson, 67 
 Meyer v. Dresser, 289 
 
 — V. Ralli, 353 
 Mcymott v. Meymott, 163 
 Michael v. Gillespy, 353, 354 
 Middleton v. Bryan, 240 
 
 — V. Pollock, 132, 133 
 Midland Insurance Co. v. Smith, 351 
 Miers v. Lockwood, 327, 458 
 Milan (The), 411 
 Milan Tramways Co., in re, 138 
 Millen v. Brash, 19, 300, 311, 313 
 Miller v. David, 478 
 
 — V. Tetherington, 369 
 
 — V. Woodfall, 355 
 Millington v. Loring, 483, 554 
 Mills V. East London Union, 263 
 
 — V. Trumper, 259 
 Milner v. Tucker, 115 
 Milnes v. Bale, 505 
 Milsom V. Hayward, 162 
 Milward v. Hibbert, 369
 
 XXXll 
 
 TABLE or CASES. 
 
 ^linshull r. Oakes, 132, 13i 
 ^litoalfe's case, 545 
 
 :\Iitclu'll r. Darlpy Main Colliery Co., 
 94 
 _ r. Eilie, 354 
 
 — r. Milbaiik, 571 
 
 — V. Newhall, 176 
 Moggriilge v. Jones, 250 
 
 Jlognl Steam Sliip Co. v. McGregor, 9 
 Moller V. Living, 286 
 Mondel v. Steel, 110, 193 
 Montgomery v. Byrne, 238 
 Moody V. Dean, &c., of Wells, 262 
 
 — " r. Pheasant, 2 10 
 Moon V. Rai.liael, 394, 399, 414 
 Moore v. Clark, 272 
 
 — V. Drinkwater, 408 
 
 — V. Hall, 445 
 
 — V. j\Ieagher, 479 
 
 — V. Moore, 463 
 
 — r. Pyi-ke, 331 
 
 — r. Siielley, 396 
 
 — r. 'I'uckwell, 581 
 
 — V. A'oughton, 157 
 Jloorsom r. Page, 285, 291 
 Moran v. Jones, 365 
 Sloravia v. Hunter, 572 
 
 Mordue v. Dean, &c. of Durham, 435 
 Mordy v. Jones, 354 
 More's case, 579 
 Morewood v. Pollok, 308 
 ^lorgan v. Hardy, 267 
 
 — V. Hughes, 452 
 
 — V. Jletropolitan Ry. Co., 206 
 
 — V. Powell, 387, 390, 435 
 
 — V. Piichardson, 251 
 
 — V. Stcble, 534 
 Morier, ex parte, 127, 133, 137 
 Morrell v. Irving Fire Insurance Co., 
 
 344 
 Morris V. Cleashy, 128 
 
 — V. Laiigdale, 61, 75, 476, 478 
 
 — V. Levison, 290, 292 
 
 — V. Phelps, 215 
 
 — V. Robinson, 111, 306, 398 
 
 — V. Salberg, 418, 419 
 Morrish i;. Murrey, 584 
 Morrison v. Chailwick, 215 
 
 — r. Robinson, 442 
 Mova le Blanch v. Wilson, 90, 91 
 Mortimer v. Cradock, 390, 588 
 
 Morton's case, 573 
 Morvilleu G. K. Ry. Co., 310 
 Moseley v. Rendell, 525 
 Moss V. Smith, 352, 354, 355, 359, 
 362 
 
 — V. Thwaite, 401 
 Mosse V. Salt, 157 
 Moule V. Garrett, 326, 336 
 Mount V. Harrison, 355 
 Mountford v. Gibson, 118 
 
 — V. Willes, 160, 162 
 Mowatt V. Lord Londesborough, 166, 
 
 167 
 Mudford's claim, 184 
 Mudun Doss v. Gokul Doss, 412 
 Mullet V. Challis, 459 
 Mullett V. Hulton, 479 
 
 — V. Hunt, 466 
 
 — V. Mason, 197 
 
 — V. Shedden, 351 
 MuUiner v. Florence, 396, 397 
 Mumford v. Oxford, Worcester, and 
 
 Wolverhampton Ry. Co., 432 
 Munro v. Butt, 222 
 Murgatroyd v. Murgatroyd, 488 
 Mun-ay u E. of Stair, 240 
 
 — V. East India Co., 245 
 Mussen v. Price, 170 
 
 Mytton V. Midland Ry. Co., 314 
 
 Nantyglo Co. v. Grave, 545 
 
 Naoroji v. Chartered Bank of India, 
 
 136 
 Nargett v. Nias, 427 
 Narracott v. Narracott & Hesketh, 49 
 Nash V. Lucas, 427 
 
 — V. Palmer, 325 
 
 — V. Swinburn, 466 
 
 National Assurance Co. v. Best, 280 
 National Provincial Bank of England 
 
 V. Marshall, 153 
 Navone v. Haddon, 356 
 Neale v. Mackenzie, 258 
 
 — V. Ratclifle, 272, 273 
 
 — V. Wyllie, 99, 327 
 Needham v. Fraser, 467 
 Neilson v. James, 537, 540 
 Nelthorpe v. Dorrington, 395 
 Newborough (Lord) v. Schrijder, 328 
 Newcombe v. Green, 578
 
 TABLE OF CASES. 
 
 XXXlll 
 
 Newell V. Jones, 157 
 
 — V. Nat. Prov. Bk., 125, 126 
 Newman, re, 151, 152, 153 
 
 — V. Barnard, 574 
 
 — V. Cazalet, 364 
 
 New Quebrada Co. v. Carr, 137 
 
 New Sombrero Phosphate Co. v. 
 
 Erlanger, 81 
 Newsam v. Carr, 449 
 Newton v. Conyngham, 168 
 
 — V. Forster, 115, 223 
 
 — V, Newton, 121 
 
 Niblo V. N. American Insurance Co., 
 
 348 
 Nichol V. Bestwick, 583 
 
 — V. Tliompson, 162 
 NichoUs V. Evans, 593 
 
 — - V. Wilson, 222 
 Nichols V. Jlarsland, 64 
 Nicholson v. Willan, 308 
 Nicklin r. Williams, 104 
 Nicoll V. Greaves, 231 
 Nicosia v. Vallone, 409 
 Nightingal v. Devismc, 332 
 Nisbet V. Smith, o29 
 Nitrophosphate Co. v. London & St. 
 
 Katherine Docks, 117 
 Noble V. Edwardes, 206 
 Noke V. Ingham, 572 
 North V. Musgrave, 3 
 
 — V. Wingate, 3 
 
 North British, &c., Ins. Co. v. 
 
 iMotfatt, 348 
 North Brit. & Merc. Ins. Co. v. Lond. 
 
 Liverpool & Globe Ins. Co., 349 
 North of England Ins. Association v. 
 
 Armstrong, 360 
 Northara v. Hurley, 5, 444 
 Northumbria (The), 307, 411 
 Norway (The), 289 
 Nosier v. Hunt, 210 
 Nosottiv. Page, 234, 235 
 Notara v. Henderson, 305 
 Notting Hill (The), 18, 48, 300, 411 
 Nowell V. Roake, 86, 441 
 Nowlan v. Ablett, 231 
 Nutting V. Herbert, 215 
 
 Oakley (Lord) v. Kensington Canal 
 Co., 107 
 M,D. 
 
 Ocean Wave (The\ 306 
 Ockenden v. Henly, 207 
 O'Connor v. Spaight, 130 
 O'Flaherty v. McDowall, 499 
 Ogle V. Earl Vane, 176, ISO 
 Ognell's case, 420 
 O'Halloran v. Studdert, 124 
 O'Hanlanv. G. W. Ry. Co., 18, 301, 
 
 302 
 Okell r. Smith, 191 
 Oldershaw v. Holt, 117, 259, 275 
 Onslow V. Orchard, 568 
 Oriental Commercial Bk. r. Savin, 
 
 530 
 Original Hartlepool Collieries Co. v. 
 
 Gibb, 122 
 Orme r. Broughton, 198, 511 
 Orpheus (The), 307 
 Orr V. Maginnis, 252 
 Orr-Ewing r. Colquhoun, 8 
 Osborne v. L. & N. W. Ky. Co., 74 
 Ottos Kopje Diamond Mines, re, 192 
 Oweu V. Burnett, 308 
 
 — V. Legh, 424 
 
 — V. Routh, 184, 185, 187 
 
 — v. AVilkinson, 123 
 
 Packham r. Newman, 590 
 Pactolus (The), 409 
 Pagani v. Gandolfi, 229 
 Page V. Cowasjee, 415 
 
 — V. Moore, 261 
 
 — V. Newman, 160 
 Paget V. Anglesey, 259 
 Paine v. Pritchard, 393 
 Paler v. Hardyman, 406 
 Palmer v. Blackburn, 359 
 Panmui'e, ex parte, 340 
 Parana (The), 17, 300, 411 
 Parfitt V. Chanibre, 147, 150 
 Parish v. Wheeler, 397 
 Park V. Hammond, 539 
 Parker v. G. W. Ry. Co., 285 
 
 — V. James, 302 
 
 — V. McKenna, 544 
 Parkes v. Prescott, 76 
 Parkin, re, 520 
 
 Parkins v. Hawkshaw, 238 
 
 — V. Scott, 77, 476 
 Parmeter v. Todhuuter, 355
 
 XXXIV 
 
 TABLE OF CASES. 
 
 Parry v. Abenlcin, 352 
 
 — V. Smith, 83 
 
 Parsons v. St. iSlatthew, Bethnal 
 Green, 501 
 — V. Sexton, 115, 116 
 Passenger v. Thorburn, 195 
 Piitriilge V. Enison, 3 
 Piitterson f. Ritchie, 357 
 Paul V. CoocUuck, 458 
 
 — V. .lones, 329 
 
 — V. Siimnierhayes, 437 
 Pawly r. Holly, 407, 56S 
 Payne r. Haine, 269, 270, 271 
 Paynter v. Walker, 124 
 Peacock, ex parte, 139 
 
 — V. Monk, 215 
 
 — V. Nichols, 401 
 Pearce r. Ornsby, 469 
 Pearse v. Coaker, 441 
 Pearson v. Henry, 525 
 
 — V. lies, 467 
 
 — V. Lemaitre, 45, 119, 468, 479 
 Pearson's case, 545 
 
 Peat V. Jones, 139 
 
 Pcdiler !'. The Mayor of Preston, 127 
 
 Peek V. Derry, 81, 197, 545 
 
 — V. Gurney, 82 
 
 — V. North StatTordsliire Ry. Co., 
 310, 312 
 
 Pell V. Shearman, 275 
 
 Pembroke (Earl of) v. P.ostock, 376 
 
 Penley v. Watts, 99, 327 
 
 Penn v. Jack, 54 
 
 Pennell v. Woodbuni, 07 
 
 Penniall v. Harborne, 205 
 
 Pennington f. Brinsop Hall Coal Co., 
 
 445 
 Penny v. Foy, 329 
 Penson v. Goodey, 567 
 Pcnton V. Browne, 418 
 Percival v. Stamp, 416 
 Perreau v. Bevan, 459 
 PciTy i\ Bamett, 336, 552 
 
 — V. Edwards, 325 
 Persival v. Spencer, 574 
 
 Peruvian Guano Co. v. Dreyfus, 190, 
 
 388, 402 
 Peter v. Rich, 334 
 Peters v. Heyward, 406 
 Peterson v. Ayre, 177 
 Petrc V. Duncombe, 161, 332 
 
 Pettit V. Addington, 555 
 
 Phelps V. L. & N. W. Ry. Co., 314 
 
 Phillips v. Clark, 311 
 
 — V. Hayward, 407 
 _ V. Hatfield, 588 
 
 _ V. Homfray, 389, 522 
 
 — V. Jones, 406 
 
 _ V. L. & S. W. Ry. Co., 10, 
 454, 515, 583 
 
 — V. Silvester, 267 
 
 — V. Whitsed, 423 
 P'lilpotts V. Evans, 171, 178 
 Pianciani v. L. & S. W. Ry. Co., 309 
 Pickering v. James, 7, 497 
 Pickwood V. Wright, 574 
 
 Pierce v. Fothergill, 245 
 
 — V. Williams, 89 
 Piggott V. Birtles, 424, 429 
 Pilcher ■;;. Stafford, 505 
 Pilkiiigton V. Cooke, 463 
 
 — V. Scott, 227, 228 
 Pindar v. Wadsworth, 443 
 Pinhoru v. Tuckington, 160 
 Pirie v. Steele, 360 
 Pitcher v. Livingston, 213 
 
 — V. Roberts, 168 
 
 Pitman v. Universal Marine Insurance 
 Co., 360 
 
 Pitt ■;;. Yalden, 464 
 
 Planch^ V. Colburn, 223 
 
 Planck V. Anderson, 460 
 
 Player v. AVarn, 570 
 
 Playford v. United Kingdom Electric- 
 Telegraph Co., 315 
 
 Plevin V. Henshall, 400 
 
 Pleving V. Downing, 180 
 
 Pleydell v. Earl of Dorchester, 589 
 
 Plomer v. Ross, 239 
 
 Plumer v. Brisco, 459 
 
 Plummer v. Whitelej', 259 
 
 Plunkett V. Cobbett, 468 
 
 Poingdestre v. Royal Exchange Assur- 
 ance Co., 361 
 
 Pollard V. Herries, 252 
 
 Pollock V. Pollock, 260 
 
 Pontifex v. Bignold, 5 
 ! — V. Foord, 99, 269 
 
 Pordage v. CJole, 225 
 
 Porter v. Harris, 572 
 
 — V. Vorley, 535 
 Portmau v. Middleton, 25, 183
 
 .TABLE OF CASES. 
 
 XXXV 
 
 Pott V. Flather, 176 
 
 Potter V. Merchants' Bank, 391 
 
 — V. Mctrop. Dist. Ry. Co., 511 
 
 — V. Rankin, 35o 
 Poulton V. Lattimore, 115 
 Ponnder v. N. E. Ry. Co., 49 
 Pounsett V. Fuller, 199 
 
 Pow V. Davis, 88, 341 
 Powell V. Graham, 524 
 
 — V. Gudgeon, 370 
 
 — V. Hodgetts, 570 
 
 — V. Jessop, 177 
 
 — r. Rees, 522 
 
 — r. Salisbury, 62 
 Power V. Whitraorc, 364 
 Poynter v. Buckley, 426 
 Praed v. Graham, 45, 470, 585 
 Prehn v. Royal Bank of Liverpool, 10, 
 
 20, 172 
 Prescot, ex parte, 135 
 Prescott V. Truman, 217 
 Preston x\ Strutton, 130 
 Price, ex parte, 140 
 
 — V. G. W. Ry. Co., 161 
 
 — V. Severn, 589 
 Prickett v. Badger, 223 
 Prince V. Moulton, 102 
 Pringle v. Gloag, 121 
 
 — f. Wernham, 444 
 Pritchard v. Long, 438 
 rritchet v. Boevey, 85, 558 
 Protector Loan Co. v. Grice, 150 
 Proudfoot V. Hart, 269, 271 
 Proudlove v. Twemlow, 428 
 Pryce v. Belcher, 553 
 
 Pujolas r. Holland, 109 
 
 Puller V. Staniforth, 294 
 
 Pulling r. G. E. Ry. Co., 511, 513 
 
 Pust V. Dowie, 293 
 
 Pym V. G. N. Ry. Co., 517, 518 
 
 QuAETZ Hill Co. v. Eyre, 84 
 Quin V. King, 240 
 Quinlane v. Murnane, 584 
 
 R\BOXE V. Williams, 127 
 Radley v. L. & N. W. Ry. Co., 67 
 Rai Balkishen v. Raja Run, 150 
 Raikes v. Todd, 318 
 
 Railway & Electric Appliances Co., 226 
 
 Raisin v. Mitchell, 70 
 
 Rajah Lelanund Singh v. Maharajah 
 
 Luckmissur Singh, 168 
 Ralli ■;;. Janson, 356 
 Randall v. Everest, 143 
 
 — V. Newson, 21, 24, 194 
 
 — v. Raper, 108, 195 
 Randell v. Trimen, S(}, 337 
 Ranger v. G. W. Ry. Co., 220 
 Raphael v. Bank of England, 579 
 Rashdall v. Ford, 96 
 
 Ratcliffer. Evans, 77, 7S, 474, 475, 558 
 
 Rawley v. Rawley, 121 
 
 Rawlings v. Jlorgan, 268 
 
 Rawlinson v. Clarke, 153 
 
 Rawson v. Samuel, 130 
 
 Ray V. Lister, 142 
 
 Raymond v. Fitch, 511 
 
 Rayne, ex parte, 307 
 
 Rayner v. Preston, 348, 350 
 
 Read v. Anderson, 336, 551 
 
 — V. Bonliam, 352 
 
 — V. G. E. Ry. Co., 518 
 
 — V. Rann, 549 
 Reason v. Wirdnani, 333 
 Reddie v. Scoolt, 489 
 Redfield v. Haight, 321 
 Redpath v. Allan, 500 
 Redshaw v. Brook, 586 
 Reece v. Lee, 579 
 
 Rees V. Lines, 221 
 
 — V. AVatts, 125, 126 
 Reeve v. Bird, 258 
 
 Reg. V. Cambridge Gas Light Co., 257 
 
 — V. Fall, 557 
 
 — V. Hall, 500 
 
 — V. Haslam, 256 
 
 — V. Hicks, 507 
 
 — V. Lee, 256 
 
 — V. Newman, 481 
 
 — V. Scott, 505 
 
 — V. Welch, 228 
 Reid, ex parte, 129 
 
 — V. Explosives Co., 230 
 
 — V. Fairbanks, H81, 3o6, 393, 334 
 
 — V. Hoskins, 171 
 Reilly v. Jones, 147, 150 
 Reimer v. Ringrose, 353 
 Rendall v. Hayward, 583 
 
 I Re vis v. Smith, 467 
 
 /> •>
 
 XXXVl 
 
 TABLE OF CASES. 
 
 Kex V. Adamcs, 257 
 _ V. Bedwovth, 255 | 
 
 — V. Bradford, 256 
 _ V. Clark, 508 
 V. Daman, 507 
 
 — V. Gibbons, 489 
 
 — V. Gouer, 2 
 
 — V. Guest, 256 
 
 — V. Harris, 500 
 
 — V. Hogg, 256 
 
 — V. Hymen, 503 
 
 — V. Lovet, 505 
 
 V. Lower Mitton, 257 
 
 — V. Miller, 256 
 
 — V. Peto, 241 
 
 — V. Richards, 496 
 
 11. St. Kicholas, Gloucester, 256 
 
 — V. Sheriff of Essex, 459 
 
 — r. AVells, 257 
 
 — V. "Wright, 496, 500 
 IJevnard r. Arnold, 350 
 Ueynolds v. licerliiig, 120 
 
 _ r. Bridge, 146, 148, 151, 153 
 
 — V. Jones, 440 
 
 — V. Kennedy, 45 
 Rboades v. Lord Selsey, 158 
 Rhodes v. Forwood, 228 
 
 — V. Rhodes, 163 
 Ilhymney Ryle v. Rhymney Iron Co., 
 
 166 
 Rice V. Baxendale, 307 
 Richards r. Barton, 199 
 
 — V. Richards, 244 
 
 — V. Rose, 584 
 Richardson r. Chasen, 198 
 
 — V. Dunn, 342 
 _ V. Mellish, 105 
 
 — V. Nourse, 304 
 
 — V. Robertson, 109 
 
 — V. "Williamson, 94, 341 
 Ricketts v. Lostetter, 214 
 
 — v. "Weaver, 511 
 Hidden V. Sutton, 525 
 
 Ridg^vay v. Hungerford Market Co 
 224 
 
 — r. Stafford, 426 
 Hiding v. Smith, 78, 80, 474 
 Rigby V. Hewitt, 67, 69 
 Riggev. Burbidge, 193 
 Ril.ley r. Siaift-, 289 
 Kiahton v. Grisscll, 161 
 
 Risk Allah Bey v. Whitehurst, 469 
 Riviere's Trade Mark, in re, 506 
 Roach V. Thompson, 88 
 Robarts, ex parte, 252 
 Roberts, re, 161—164 
 
 V. Havelock, 221 
 
 — V. Roberts, 479 
 
 _ V. Thomas, 420 
 Roberts and Wife v. Roberts, 476, 479 
 Robertson v. Ewer, 364 
 — V. "Wait, 6 
 _ V. "Wylde, 471 
 Robinson v. Bland, 164, 246 
 
 — V. Currey, 506, 508 
 
 — V. Harm'an, 113, 201 
 _ V. Kilvert, 8, 211 
 
 — v. Knights, 285, 289 
 
 — V. Learoyd, 257, 261 
 
 — V. London and S. W. Ry. 
 
 Co., 313 
 
 — V. Price, 365 
 
 _ V. Reynolds, 250 
 
 — V. Robinson, 259, 530 
 
 — V. Vaugliton, 417 
 Robson V. Godfrey, 220 
 Rochdale Canal Co. v. King, 443 
 
 _ V. Radcliffe, 443 
 
 Roden v. Eyton, 426 
 Rodger v. Comptoir d'Escompte de 
 
 Paris, 168 
 Rodgers v. Maw, 331 
 
 — V. Nowill, 554 
 
 — V. Parker, 422, 425 
 Rodocanachi v. Milburn, 1, 18, 26, 
 
 300, 301 
 Rodrignes v. Melhuish, 306 
 Rodriguez v. Tadmire, 449 
 RofTey v. Greenwell, 244 
 Rogers v. Price, 526 
 
 — V. Spence, 534 
 
 — V. Stephens, 253 
 Rogerson v. Ladbroke, 121 
 Roles V. Rosewell, 238 
 Rolin V. Steward, 7, 544 
 Rolph V. Crouch, 98, 211, 214 
 Ronneberg v. Falkland Islands Co., £8 
 Rooth-y. N. E. Ry. Co., 312 
 Roper V. John.son, 173, 175, 178 
 Rose r. Bowler, 524 
 
 — V. Groves, 446, 474, 554, 556 
 
 — V. Hart, 135
 
 TABLE OF CASES. 
 
 XXXVll 
 
 Rose V. Miles, 446 
 
 — V. Sims, 136 
 
 — V. Tombliuson, 561 
 Rosetto V. Giirney, 352, 353 
 Rosewell v. Prior, 106 
 Ross V. Adcock, 495, 523 
 
 — V. Fed den, 64 
 
 — V. Rugge Price, 499 
 
 — V. Thwaite, 369 
 Rothschild v. Brookman, 545 
 Roux V. Salvador, 352, 356, 359 
 Rowcliffe V. Murray, 450 
 
 Rowe V. School Board for Loiidou, 201 
 Rowlands v. Samuel, 101 
 Rowley v. Adams, 529 
 
 — V. London & K W. Ry. Co. 
 
 454, 515 
 
 Rowntree v. Jacob, 215 
 
 Royal Bristol Permanent Building So- 
 ciety V. Bomash, 204, 2C7 
 
 Royal Exchange Shipping Co. r. Dixon, 
 538 
 
 Royal Mail S. P. Co. v. English Bank 
 of Rio Janeiro, 367 
 
 Roxburghe v. Cox, 133 
 
 Rubery v. Stevens, 523 
 
 Rudge V. Birch, 126 
 
 Rumbelow v. Whalley, 235, 414 
 
 Rundle v. Little, 413 
 
 Russel V. Ball, 582, 584 
 
 Russell V. Bell, 135 
 
 — V. Palmer, 464 
 
 — V. Sa da Bandeira, 220 
 
 Rust V. Victoria Graving Dock Co. 
 
 432, 433 
 Rustell V. Macquister, 468 
 Ryan v. Massy, 240 
 
 Sadlers Co. V. Badcock, 345 
 
 St. Aubyn v. St. Aubyn, 259 
 
 St. Helen's Smelting Co. v. Tipping, 8 
 
 Sainter v. Ferguson, 146, 147, 150 
 
 Sandback v. Thomas, 84, 449 
 
 Sanders v. Kentish, 184 
 
 — V. Stuart, 29, 315 
 Sanderson v. Mayor of Berwick, 210 
 Sandford v. Alcock, 578 
 
 — V. Clarke, 579, 580 
 Saner v. Bilton, 255, 269 
 
 Sanguinetti v. Pacific Steam Nav. Co., 
 
 295 
 Sankey Brook Coal Co. v. Marsh, 129 
 Sanquer v. London & S. W. Ry. Co., 
 
 301 
 Sapsford v. Fletcher, 262 
 Saunders v. Mills, 479 
 Saville v. Roberts, 447 
 Sayers v. Collyer, 219, 590 
 Scaife v. Kemp, 559 
 Schloss V. Heriot, 134 
 Schofield v. Corbett, 125 
 School Board for London v. Wright, 
 
 500 
 Schulze V. Gt. Eastern Ry. Co., 14, 301 
 Scott V. Be van, 242 
 
 — V. Henley, 461 
 
 — V. Sampson, 480 
 
 — V. Shepherd, 77 
 
 — V. Slaley, 238] 
 
 — V. Waithman, 458 
 
 Scottish Marine Assurance Co. v. Tur- 
 ner, 354 
 
 Sea Insurance Co. v. Hadden, 81 
 
 Scale V. Hunter, 582 
 
 Seaman v, Netherclift, 467 
 
 Searle v. Scovell, 372 
 
 Sears v. Lyons, 45 
 
 Seaward v. Willcock, 205 
 
 Secretary of State for India v. Shan 
 Mugaraya, 436 
 
 Sedgwicke v. Richardson, 3 
 
 Sedgworth v. Overend, 395 
 
 Segar v. Atkinson, 524 
 
 Seller v. Work, 541 
 
 Semayne's case, 416 
 
 Semenza v. Brinsley, 128 
 
 Serrao v. Noel, 103, 402 
 
 Seton r. Lafone, 22 
 
 Seymour v. Bridge, 336, 552 
 
 Shadwell v. Hutchinson, 436 
 
 Sharp V. Fowle, 427 
 
 — V. Gladstone, 360 
 
 — V. Powell, 52 
 
 — V. AVarren, 478 
 Shaw V. Arden, 113 
 
 — V. Holland, 179 
 
 — V. Kay, 266 
 
 — V. JIarq. of Worcester, 241 
 
 — V. Picton, 162 
 Sheels v. Davies, 113
 
 XKXVIU 
 
 TABLE OF CASES. 
 
 Sheen r. Rickie, 567 
 Shepliard v. Halls, 575 
 Sheithcnl v. Charter, 562 ^ 
 
 r. Henderson, 358 
 
 V. Johnson, 184 
 
 — V. Kottgeii, 365 
 Shoritr V. Jiinies, 427 
 Shi-rrod r. Langdon, 197 
 Shilcock V. I'assnian, 465 
 Shipley v. }lanuiiond, 160 
 Shipnian v. Thompson, 124 
 Shirley v. Jacobs, 109 
 Short r. Kalloway, 88, 98 
 
 — r. M'Cnrthy, 104 
 
 — V. Skipwith, 541 
 Shortvidge v. Lamplugh, 108, 274 
 Sicklemore v. Thistleton, 566 
 Sikeso;. ^Vild, 44, 199 
 
 Simmons v. London Joint Stock Bank, 
 
 184 
 Simonsr. G. W. Ey. Co., 312 
 
 _ V. Patchett, 339 
 Simpson v. Clarke, 249 
 
 — V. Crippin, 180 
 
 — V. Hartopp, 429 
 
 — V. Laml), 549, 550 
 
 _ V. London & N. ^V. Uy. Co., 
 36, 300 
 
 — V. Robinson, 468, 469 
 
 — V. Savage, 432 
 
 — r. Scottish Union Insurance 
 
 Co., 348 
 
 — V. Thompson, 81, 110, 351 
 Sinclair v. Bowles, 222 
 
 — V. Eldred, 84, 449 
 Singleton v. Eastern Counties By. Co., 
 
 69 
 — r. Williamson, 67 
 Sipjiora v. Basset, 555 
 Six Carpenters' Case, 427, 428 
 Ski'lton V. Lond. & North Western Ry. 
 
 Co., 67 
 Skinner v. City of London Marine In^ 
 
 snrance Corporation, 57 
 Skull r. Glenister, 438 
 Slack V. Lowell, 158 
 Sleap V. Newman, 529 
 Sleat V. Fagg, 308 
 Slipper V. Stidstone, 123 
 Sloman r. Walter, 146 
 Smallpiccc v. Bockingham, 579 
 
 Smart v. Sandars, 549 
 Smeed v. Foord, 25, 183 
 Smethurst v. Woolston, 186 
 Smith V. Allison, 118, 492 
 
 — V. Ashforth, 422, 426 
 _ V. Baker, 73, 384 
 
 _ V. Bond, 241 
 
 _ V. Brown, 307, 519 
 
 — V. Compton, 86, 100, 211, 329 
 
 — V. Dickenson, 146 
 
 — V. Dobson, 69, 72 
 
 — V. Douglas, 266 
 
 — V. Enright, 480 
 
 _ V. Green, 20, 194, 197 
 
 — V. Hayward, 230 
 
 — V. Hodson, 135 
 
 — V. Holbrooke, 417 
 
 _ V. Howell, 99, 108, 323, 327 
 
 — V. Humble, 262 
 
 — V. Jefts, 218 
 _ V. Keal, 419 
 
 — V. Kiugsford, 230 
 _ V. Kirby, 307, 411 
 _ V. McGuire, 290, 291 
 
 — V. Maguire, 174 
 
 — V. Malings, 215 
 
 — V. Peat, 263, 266, 271 
 
 — V. Robertson, 358 
 
 — V. Ryan, 152 
 
 — V. St. Lawrence, 67 
 
 — V. Scott, 479 
 
 — V. Tett, 375, 443 
 
 — r. Thackerah, 5, 8 
 
 — V. Thompson, 224, 230 
 
 — V. Woodfine, 482 
 
 — V. Wright, 369, 428 
 Sncesby v. L. & Y. Ry. Co., 48, 62 
 Snow V. Whitehead, 64 
 Snowdon, re, 333 
 
 SoUers v. Lawrence, 523 
 
 Solly V. Hinde, 249 
 
 Solomon v. Turner, 251 
 
 Soper V. Arnold, 207 
 
 Southall V. Bigg, 249 
 
 Southampton Steam Colliery Co. v 
 
 Clarke, 292 
 Southern v. How, 550, 551 
 Southerwood v. Ramsden, 486 
 Sovereign Life Ass. Co. v. Dodd, 140 
 Soward v. Leggatt, 268 
 Sowell V, Champion, 418, 590
 
 TABLE OF CASES. 
 
 XXXIX 
 
 Spaight V. Farnworth, 303 
 
 — V. Tedcastle, 66, 67 
 Spark V. Heslop, 321, 322 
 Sparkes v. Martindale, 86, 322 
 Sparrow v. Paris, 147, 150 
 Speck V. Phillips, 109, 479 
 Spedding v. Nevell, 339 
 Spencer v. Goter, 579 
 Spiller r. Westlake, 251 
 Spoor V. Green, 103 
 Spotswood V. Barrow, 224 
 Spring v. Chase, 210 
 
 Staats V. Ten Eycks Exrs., 212 
 Stadhard v. Lee, 220 
 Stammers v. Elliott, 129 
 Standeven v. Murgatroyd, 127 
 Staniforth v. Lyall, 295 
 Stanley v. Powell, 5 
 
 — V. Towgood, 270 
 Stannard v. Ullithorne, 464 
 Stanton v. Styles, 120 
 Star of India (The), 410 
 Startup V. Cortazzi, 188 
 Staynrode v. Locock, 566 
 Stearine Co. v. Heintzmanu, 539 
 Steel V. Dixon, 334 
 
 Steer 1'. Crowley, 203 
 Stein V. Yglesias, 250 
 Stephens, ex parte, loO, 134 
 
 — V. "Wilkinson, 250 
 Stettin (The), 306 
 Stevenson v. Lambard, 215 
 
 — V. Montreal Telegraph Co., 
 
 315 
 
 — V. Newnham, 423, 566 
 Stewarts. Cauty, 176 
 
 — V. Greenock Ins. Co., 355 
 
 — v. Rogerson, 290 
 
 — V. Steele, 360, 361 
 
 — V, West India & Pacific S. S. 
 Co., 364 
 
 Stimson v. Earnham, 6, 460 
 
 — V. Hall, 119, 132 
 Stirling v. Maitland, 226 
 Stocken's case, 166 
 Stoessiger v. S. E. Ey. Co., 309 
 Stokes V. City Offices Co., Lim., 590 
 
 — V. Cooper, 258 
 Stone V. Stone and Appletou, 491, 495 
 Stook V. Taylor, 120 
 Stracey v. Deey, 123 
 
 Stratton v. Mathews, 88 
 Street v. Blay, 115, 191 
 Strickland r. Seymour, 525 
 Strong V. Kean, 218 
 Stroud V. Dandridge, 531 
 Strutt V. Farlar, 202 
 Stuart V. Isemonger, 806 
 
 — V. Lovell, 469 
 Stubbs V. Parsons, 262 
 Stnrt V. Marquis of Blandford, 492 
 Sturtevant v. Ford, 250 
 Sullivan v. Mitcalfe, 82 
 Sully V. Duranty, 74 
 Sunderland Parish v. Sunderland Union, 
 
 257 
 Suse V. Pombe, 252 
 Sutton V. G. W. P.y. Co., 285 
 Svensden -y. Wallace, 361 
 Swatman v. Ambler, 256, 262 
 Sweetland v. Smith, 205 
 Swinfen v. Bacon, 261 
 Swinnerton v. Mar(|uis of Stufl'urd, 466 
 Swire v. Leach, 397, 427 
 Symmons v. Blake, 468 
 Symonds v. Page, 84, 441 
 
 Tancked v. Allgood, 460 
 — V. Ley laud, 423 
 Tanner v. Woolnier, 318 
 Taplin v. Florence, 549 
 Tapling v. Jones, 8 
 
 Tarpley v. Blabey, 480 
 
 Tattersall v. National S. S. Co. , S05 
 
 Taylor, ex parte, 82, 545 
 
 — r. Bennett, 444 
 
 — V. Helps, 590 
 
 — %\ Henniker, 423 
 
 — V. Higgins, 330 
 
 — V. Holt, 167 
 
 — V. Mills, 329 
 
 — V. Mostyn, 389 
 
 — V. Neri, 60 
 
 — V. Parry, 395 
 
 — V. Taylor, 133 
 
 — V. Taylor & Wolters, 494 
 
 — r. Waters, 120 
 
 — V. Young, 323 
 
 — V. Zamuii, 262 
 Tegetmeyer v. Lumley, 125 
 Tempertou v. Russell, 75
 
 xl 
 
 TABLE OF CASES. 
 
 Tempest v. Kilner, 177 
 
 Tomplerr. Jl'Lachlan, 113 
 
 Terry v. Hutchinson, 487 
 
 Tetley v. AVunless, 233, 234, 237 
 
 Thame v. Boast, 234 
 
 TheUusson v. Flftcher, 562 
 
 Theobald v. Kailway Passengers' Assur 
 
 ance Co., 343 
 Thetford (Mayor of) v. Tyler, 256 
 Tlioli;. Henderson, 60, 183 
 Tliomas v. Clarke, 286, 288, 290 
 
 — V. Fredricks, 588 
 
 — V. Harris, 586 
 
 — V. Jlirehouse, 461 
 
 — r. Quartermaiiie, 73 
 
 — V. Russell, 450 
 Thompson v. Gibson, 107, 436 
 
 — r. Gillespy, 134 
 
 — t'. Hudson, 148, 149, 152 
 
 — V. N. E. Ry. Co., 67 
 
 — V. Nye, 480 
 
 — V. Parish, 121 
 
 — r. Pettitt, 408 
 
 — V. Rowcroft, 364 
 
 — V. Shanley, 572 
 
 — V. Wood, 423, 555 
 Thomson V. Eastwood, 157 
 Thornton f. McKewan, 318 
 
 — V. Place, 116 
 Tliorop;ood v. Bryan, 71 
 Thorjie v. Thorpe, 43 
 Throckmorton v. Crowley, 121, 129 
 Thrusscll V. Handyside, 73 
 Thyatira (The), 410 
 Tighe V. Crafter, 241 
 Times Fire Assurance Co. v. Hawke, 
 347 
 
 Timmins r. Rowlinson, 260 
 
 Tindallu I'.ell, 88, 411 
 
 Tobin r. Harford, 359 
 
 Tod-Heatly v. Benham, 282 
 
 Todd V. Kerrich, 231 
 
 — V. Robinson, 509 
 Tomlin v. Lace, 197 
 
 Tomlinson v. Consolidated Credit and 
 Mortgage Corp., 429 
 — V. Day, 256 
 Toms V. Wilson, 396, 413 
 Toussaint v. Martinnant, 329 
 Townshead (Lord) v. Hughes, 472 
 Treadwin v. G. E. Ry. Co., 309, 310 
 
 Tregoning v. Attenborough, 390 
 Trelawney v. Coleman, 492 
 _ V. Thomas, 162 
 Tremere v. Morison, 529 
 Trent r. Hunt, 426 
 Trickey v. Larne, 251 
 Trimmer v. Danby, 259 
 Tripcony's case, 579 
 Tripp V. Thomas, 472, 564 
 Tucker v. Chaplin, 518 
 
 V. Linger, 66, 389 
 
 V. Tucker, 127 
 
 V. Wright, 401 
 Tudor V. Macomber, 368 
 Tuff V. Warman, 68 
 Tullet V. Winfield, 377 
 Tullidge V. Wade, 46, 487, 488, 587 
 Tunnicliffe v. Moss, 476 
 Turner v. Davies, 335 
 
 — V. Diaper, 115, 223 
 
 — V. Goldsmith, 228 
 
 — V. Hardcastle, 398 
 
 — V. Lewis, 590 
 
 — V. Mason, 224 
 
 — V. Robinson, 193, 224 
 
 — V. Thomas, 135 
 Tutton V. Andrews, 582 
 
 — V. Darke, 427 
 Twycross v. Grant, 82, 545 
 Twyman v. Knowles, 433 
 
 Tyers v. Rosedale & Ferry hill Co., 180 
 Tyrer v. King, 57 
 
 Ullman v. Barnard, 397 
 
 United Horse Shoe Co. v. Stewart, 54 
 
 United Merthyr Coll. Co., re, 388, 
 
 435 
 United Service Co., re, Johnston's 
 
 Claim, 74, 86 
 Upton V. Lord Ferrers, 164, 246 
 Usher v. Dansey, 574 
 
 — V. Noble," 358, 362 
 
 — V. Walters, 464 
 
 Uzielli V. Boston Marine Insur. Co., 
 354, 363 
 
 Valentine v. Fawcett, 576 
 
 Vallance v. Falle, 500 
 
 Valpy V. Oakeley, 172, 189, 535
 
 TABLE OF CASES. 
 
 Xli 
 
 Vance v. Forster, 347 
 Vane v. Lord Barnard, 218 
 Vansandau v. Browne, 222 
 
 — V. , 241 
 
 Van Toll v. S. E. Ry. Co., 313 
 Yaughan, ex parte, 406 
 — V. Wood, 185 
 Vaughton v. L. & N. W. Ry. Co., 310 
 Vaux V. Shetfer, 411 
 Velasquez (The), 306 
 Vera Cruz (The), 519 
 Verry v. Watkins, 489 
 Vessey v. Pike, 479 
 Vicars v. Wilcocks, 75, 476 
 Victorian Ry. Commissioners v.Coultas, 
 
 48, 50 
 Vines v. Serell, 469 
 Vivian v. Champion, 263 
 Vulliamy r. Noble, 134 
 
 Wacev. Bickerton, 213 
 AVaddell v. Blockey, 546 
 AVaiteu N. E. Ry. Co., 71 
 "Wake V. Tinkler, 126 
 Wakelin v. L. & S. \V. Ry. Co., 67 
 Walcot V. Goulding, 238, 240 
 "Waldron r. Coombe, 362 
 Walker v. Barnes, 245 
 
 — V. Bartlett, 176 
 
 — V, Broadhurst, 317 
 
 — V. Clements, 122 
 
 — V. Constable, 162 
 
 — V. Goe, 61 
 
 — V. Hamilton, 252 
 
 — V. Hatton, 99, 327 
 
 — V. Jackson, 308, 314 
 
 — V. Lane, 467 
 
 — V. Moore, 198, 199 
 
 — V. Needham, 406 
 
 — V. Olding, 409 
 
 — V. Priestley, 238 
 
 — V. Woolcott, 571 
 
 Wall V. City of Loudon Real Prop. Co. , 
 
 204 
 Wallace v. Small, 292 
 Wallis V. Goddard, 579 
 
 — V. Hands, 211 
 
 — V. Smith, 10, 151, 154 
 Walls V. Atcheson, 258 
 Walpole V. Ewer, 364 
 
 Walrod v. Ball, 391 
 Walsh V. Bishop, 573 
 
 — V. Walley, 224 
 Walthew v. Alavrojani, 365 
 Walton V. Fothergill, 296, 297 
 Warburg v. Tucker, 280 
 Ward V. Eyre, 385 
 
 — V. Henley, 327, 458 
 
 — V. Hobbs, 21, 52, 197, 497 
 
 — V. New York Central lly., 16, 26 
 
 — V. Smith, 201, 557 
 
 — V. Weeks, 77, 471, 476 
 Waring v. Cunliffe, 157 
 Warner v. M'Kay, 128 
 Warre v. Calvert, 5, 318 
 Warren v. Peabody, 288, 289 
 Warwick v. Foulkes, 45, 119, 451 
 
 — V. Richardson, 323 
 Waterhouse v. Gill, 475 
 Waters, ex parte, 139 
 
 — V. Monarch Insurance Co., 
 
 348, 397 
 
 — V. Towers, 21, 56 
 Watkins v. Morgan, 161 
 Watney v. Wells, 163 
 
 Watson V. Ambergate Ry. Co., 58 
 
 — V. Bayless, 488 
 
 — V. Christie, 109, 452 
 
 — V. Lane, 281 
 
 — V. Mid-Wales Ry. Co., 133 
 
 — V. Reeve, 466 
 Watt V. Potter, 381 
 Watts V. Eraser, 480 
 
 — V. Rees, 125 
 Webb V. James, 239 
 
 Webster i;. British Empire Co., 167 
 
 — V. Brit. Mut. Life Ass. Co., 
 
 161 
 
 — V. De Tastet, 544 
 Weedon v. Timbrell, 4yl 
 Weeks v. Propert, 94, 95 
 Welch V. Ireland, 240 
 Wells V. Hopkins, 249 
 
 — V. Moody, 422 
 
 — V. Ody, 444 
 
 — V. Watling, 443 
 Wennhak v. JNIorgan, 472 
 West V. Baker, 139 
 
 — V. Chamberlain, 332 
 
 — V. Houghton, 6 
 
 — V. Weutworth, 186, 330
 
 xlii 
 
 TABLE OF CASES. 
 
 AVcst r. West and Parker, 490 
 Western "Wagon Co. r. "West, 56 
 Weston r. Metroi-olitan Asylum, 144, 
 
 153 
 Westwooil r. Cowne, 556 
 Whaley IJriilgc Co. v. Green, .^>44 
 AVIialley r. Lancashire and Yorkslure 
 
 Co., 64 
 AVharton v. I^ewis, 485 
 Wlu'fler V. Sims, 587 
 Wl-.etstone r. Dewis, 375 
 Whineup v. Hughes, 224 
 Whitbeck v. New York Central Rail- 
 road Co., 431 
 White V. Sealy, 242 
 
 — r. Steele, 85 
 ~ r. Webb, 397 
 
 Wliitehouse, re, 129, 130 
 
 — V. Atkinson, 383, 419 
 
 — r. Fellowes, 107 
 Wliitlield V. Lord Despencer, 315 
 Wliitham r. Kershaw, 263, 267, 430 
 Wiiitmore r. Black, 383 
 WliitucY V. Moignard, 76, 476 
 Whitt.'u r. Fuller, 401 
 
 Wliittle r. Frankland, 228 
 
 Whitwell r. Short, 570 
 
 WilFen v. Roberts, 250, 251 
 
 Wiggett V. Fox, 518 
 
 Wiggins V. Johnston, 295 
 
 AVightman r. Townroe, 525 
 
 Wiglcy V. Ashton, 526 
 
 Wigmore v. Jay, 518 
 
 Wigsell V. Corj'oration of the School 
 
 for Indigent 15lind, 118, 219, 275 
 Wilbeam v. Ashton, 144 
 Wilby V. Elston, 475 
 WiM r. Holt, 387, 435 
 AVilde v. Clarkson, 144, 233, 212 
 
 — V. Fort, 205 
 Wild Ranger (Tlie), 411 
 Wihtts V. Green, 224 
 Wilford V. Ik-rkeley, 585 
 
 Wilkes V. HungerfordiMarketCc, 436, 
 
 446 
 Wiikins r. Day, 67 
 Wilkinson r. (irant, 178 
 
 — r. Hyde, 357 
 
 — r. Kirby, 440 
 Willnns r. Ayers, 252 
 Williams, e.x parte, 157 
 
 Williams v. African Steam Ship Co., 
 308 
 
 — V. Archer, 402, 407, 414 
 
 — V. P>osanquet, 527 
 
 — V. Breedon, 514 
 
 — V. Burrell, 97, 211, 215 
 
 — V. Cooke, 120 
 
 — V. Cooper, 563 
 
 — r. Currie, 586 
 
 — V. Davies, 129 
 
 — V. Earic, 282 
 
 — V. Glenton, 198, 203 
 
 — V. London Assurance Co., 
 
 367 
 
 — V. Morland, 444 
 
 — r. Mostyn, 6, 460 
 
 — V. North China Insurance 
 
 Co., 358 
 
 — V. Reynolds, 48, 60, 177 
 
 — V. Williams, 263, 266 
 Williamson v. Williamson, 157 
 Willis V. Bernard, 491 
 Willougliby V. Swinton, 240 
 Wills V. Wells, 392 
 
 Wilmot V. Smith, 221 
 Wilson V. Dunvillc, 24 
 
 — V. Finch-Hatton, 219 
 
 — V. Gabriel, 133 
 
 — r. Hicks, 175, 291, 583 
 
 — v. Keating, 215 
 
 — T. Lancashire & Yorkshire Ry. 
 
 Co., 14, 55, 300, 301 
 
 — r. Newport Dock Co., 12, 52 
 
 — V. Robinson, 469 
 
 — V. Tumman, 417 
 
 — V. Vysar, 253 
 
 — V. Wigg, 527, 528 
 Wilton r. Webster, 491 
 Windham v. Wycombe, 492 
 Windle v. Andrews, 253 
 Winter v. Haldimand, 359 
 
 — V. Heun, 492, 493 
 
 — V. Trimmer, 144, 242, 301 
 
 — r. Wroot, 492 
 Winterbottom r. Earl of Derby, 446 
 Wintle r. Rudge, 399 
 
 Wise V. Metcalfe, 523 
 Wiseman v. Booker, 62 
 Withers v. Henley, 106 
 
 — v. Reynolds, 221 
 Wolfe V. G. N. Ry. Co., 518
 
 TABLE OF CASES. 
 
 xliii 
 
 "Wollaston v. Hakewill, 527, 528 
 Wolverhampton New Waterwoi'ks Co. 
 
 r. Hawkesford, 498 
 Wolveiidge v. Steward, 326 
 Wood V. Akers, 124 
 
 — V. Bell, 393 
 
 — V. Earl of Durham, 4S1 
 
 — V. Hurd, 483, 587 
 
 — V. Morewood, 388, 435 
 
 — V. Scoles, 163 
 
 — V. Smith, 137 
 
 — r. Waud, 443, 444 
 Woodcroft V. Thompson, 422 
 Woodlbrd v. Eades, 582 
 Woodgerv. G. W. Ry. Co., 29, 300 
 Woodiiouse V. Swift, 109 
 
 — V. Walker, 267, 521 
 Woodleyr. Met. Dist. Ry. Co., 73 
 AVoods V. Pope, 268, 590 
 Wordsworth v. Harley, 107 
 Workman -iJ. G. N. Ry. Co., 117 
 Wormer v. Biggs, 398 
 WortluDgton v. Barlow, 525 
 
 — V. "Warrington, 200 
 
 Wright V. Court, 569 
 
 — V. Lewis, 576 
 
 — V. London General Omnibus 
 
 Co., 104 
 
 Wright V. Marwood, 369 
 — and Pole, re, 348 
 Wrightup V. Chamljerlain, 97 
 
 — V. Greenacre, 463 
 Wylie V. Birch, 6, 460, 461 
 
 Yardley v. Arnold, 531 
 
 Yarmouth r. France, 73 
 
 Yates V. Dunster, 269, 348, 430 
 
 — V. Eastwood, 331 
 
 — V. Sherrington, 137 
 ._ V. Whyte, 110, 415 
 
 Yea V. Lethbridge, 457 
 Yeatman v, Dempsey, 467 
 Yelland's case, 230 
 Young, ex parte, 317 
 
 — V. The Bank of Bengal, 136 
 
 — V. Brompton, &;e., Waterwoiks 
 
 Co., 457 
 
 — v._ Davis, 50 
 
 — V. Kitchen, 133 
 
 — V. Spencer, 431, 445 
 
 — V. Turing, 352 
 
 Zrxz V. S. E. Ry. Co., 313 
 Zwilchenbart v. Alexander, 539
 
 ADDENDA. 
 
 Pnge 104.— Note (c), add, "see Midlaml Eaihvay Co. v. Martin, [1893] 
 2 Q. B. 172." 
 „ 160. -Note (u), add, " L. C. tO D. Ry. Co. v. S. E. By. Co., [1893] 
 A. C. 429." 
 161.— Note (e), after " RisMon v. Grissdl, L. R. 10 Eq. 393," add, 
 "but see L. C. d: J). Ry. Co. v. ,S'. K Ry. Co., [1893] A. C. 
 429." 
 ,, 165.— Note (s), after "61 L. J. Cli. 294," add, "affirmed [1893] 
 A. C. 429." 
 19-2.— Note (c), after "L. R. 5 Ex. p. 116 (n.)," add, "and in BaJfs 
 Consolidated Co. v. Tomlcinson, [1893] A. C. 396, affirnniig 
 S. C, [1891] 2 Q. B. 614." 
 253. — "As to expenses of protest for non-payment, and for Letter 
 security, refer to In re English Bank of tlv River Plate, 
 [1893] 2 Ch. 438." 
 ,, 267.— Note (m), add, ''followed Henderson v. TJwrn, [1893] 2 (,). B. 
 164." 
 271. — End of note (c), add, "folloived Lister v. Lane, [1893] 2 (}. V>. 
 212." 
 ,. 333.— Note (c), add, "The right of action by surety against co- 
 surety also arises as soon as the creditor's claim is established 
 against him by judgment, or allowance of claim. Wolmers- 
 lumscn V. Gulliclc, [1893] 2 Ch. 514."
 
 DAMAGES. 
 
 CHAPTER I. 
 
 CASES IX AVHICH DAMAGES MAY BE RECOVERED. 
 
 Damages are the pecuniary satisfaction ■which a plaintiff 
 may obtain by success in an action. They may rise to almost 
 any amount, or they may dwindle down to being merely 
 nominal. They may be governed by rules so strict as to 
 enable the Judge to dictate their amount as a matter of law : 
 or they may be left, within loose limits, almost entirely to the 
 discretion of the jury. It becomes then a most important 
 inquiry to ascertain the principles by which they are measured, 
 and the species of evidence by which they may be aggraA'ated 
 or reduced. It is proposed in the following work, first to state 
 briefly the actions in which damages may be recovered ; then 
 to examine the rules by which they are measured ; and finally 
 to inquire into the practice which prevails as to the pleading 
 and assessment of damages, and to point out the cases in 
 which the Court will review the decisions arrived at by a 
 
 jury(rt). 
 
 Till some years ago actions were personal, real, or mixed. 
 Damages were recoverable in all personal actions at common Damages in 
 law ; and so they were in mixed actions by the very definition ^^"^'J^"""^ ^""^ 
 of the latter, as being " suits wherein some real property 
 is demanded, and also personal damages for a wrong sus- 
 tained" (&). But no damages could be obtained m real actions, but not in 
 
 real actions. 
 
 {a) It m\ist be remembered that the rules as to tlainages can in the nature 
 of things only be approximately just, and that they have to be worked out 
 not by mathematicians but by juries, per Lindley, L. J., Rodocaaachi v. Mil- 
 hum, 18 Q. B. D. at p. 78 ;' 5G L. J. Q. B. 202. 
 
 {h) 3 Bl. Com. 118. 
 
 M.D. B
 
 CASES IN WHICH DAMAGES MAY BE RECOVERED. 
 
 nor on an 
 indictment. 
 
 Damages in 
 actions on a 
 l>enal statute 
 
 In these the plaintiff only claimed title to real property, but 
 not damages, and the Court could not give the defendant that 
 wliich he demanded not. Judex non reddat phis quam ipse 
 petrns requirit {c). This exception was once very important, 
 but after stat. 3 & 4 W. lY. c. -^7, which, at one blow(r7), 
 swept away sixty-two real actions with barbarous names, it 
 became quite insignificant. That statute left only two real 
 actions, viz., writ of right of dower, and ejectment. The latter 
 action, too, in one instance assumed the form of a mixed action, 
 Avhen brought by landlord against tenant; in which case 
 damages might be obtained for mesne profits (e). Quare 
 impedit, and Dower unde nihil habet, remained both mixed 
 actions, in which damages might be obtained. 
 
 These distinctions are now obsolete. All actions are com- 
 menced by the ordinary writ of summons indorsed with a 
 statement of the nature of the claim made, or of the relief or 
 remedy required. The action for recovery of land has become 
 still more of a mixed nature, as claims may be joined with it 
 for mesne profits, arrears of rent, double value, or breach of 
 any contract under which the land is held, or for wrong or 
 injury to the land (/) ; and there seems no reason why Quare 
 impedit and Dower should not be joined with other causes of 
 action if they can be conveniently disposed of together (^). 
 
 Ko damages are recoverable on an indictment, or informa- 
 tion, as the suit is maintained in the name of the king (h) ; 
 and even where the statute gives damages to the person 
 aggrieved, they cannot be obtained on the indictment, but 
 must be sued for in an action on the statute, in the name of 
 the party grieved {i). But an informer, upon conviction of 
 the prisoner on any penal law, may have the third part of the 
 fine the Court set upon him, according to the king's privy seal 
 to that purpose (/r). 
 
 Where a defendant is sued in debt upon a penal statute 
 several distinctions are taken as to his liability to damao-es for 
 the detention of the penulty. Where the action is brouo-ht by 
 
 (c) 2 Inst. 286. 
 
 (d) S. 30. 
 
 (e) 1.0 & 16 Vict. c. 76, s. 214. 
 (/) Ord. 18, K. 2. 
 
 (j) See, as to inconvenience, Ord. 
 
 18, E. 8. 
 
 [h) 1 Eoll. Abr. 220. 
 
 (i) 2 Hawk. P. C. c. 25, s. 3. 
 
 (k) It. V. Gouer, 1 Keb. 487.
 
 CASES I\ WHICH DAMAGES MAY BE EECOVERED. ' 
 
 a common iiifonner, no damages can be obtained ; becanse as 
 he had no right to the money before the action was commenced, 
 it cannot be said that it was detained from him. But it is 
 otherwise where the peuaUy is given to the party grieved (/). 
 In the latter case, too, the further distinction is taken, that 
 when a statute gives a penalty certain, and also an action of 
 debt, if the defendant does not pay on demand, l»ut forces the 
 plaintiff to a suit, he shall recover his damages, because the 
 other did not pay the duty due by the statute upon demand. 
 But where the penalty is uucertain, as treble damages, no 
 damages are allowed for detention (;»)• 
 
 Where the action is against several for a penalty given 
 by statute, only one penalty can be recovered against all. 
 Although the words are, " that every person offending contrary 
 thereto shall forfeit to the party aggrieved for every offence, 
 &c.," yet the meaning is, that the penalty shall relate to the 
 offence and not to the person (n). 
 
 The mere fact that the breach of a public statutory duty has 
 caused damage to a private individual does not vest a right of 
 action in the person suffering the damage against the person 
 guilty. Whether the l)reach does or does not give the right 
 of action must depend upon the object and language of the 
 particular statute (o). 
 
 When a party persisted in suing in an Ecclesiastical Court oraprohibi- 
 after a prohibition had been delivered, damages were given, 
 either in an action upon the prohibition, or upon attach- 
 ment ip). The proceedings in prohibition, including the assess- 
 ment of damages, arc now in the High Court assimilated to 
 those in ordinary actions for damages {5'). 
 
 {I) North V. Muuirave, 1 Roll. Abr. 574 ; Frederick v. Lookup, 4 Burr. 
 2018 ; Cuminfj v. Sihhj. ibid. 2489. 
 
 (m) North v. Wimjate, Cio. Car. 559 ; Sed'jwieke v. Richardson, 3 Lev. 
 374. 
 
 (h) Patridgc v. Emmn, Nov. C2. Wbere a pennlty is imposed on a con- 
 tinuous offence, one ])enalty only is recoverable. Garrett v. Messenr/cr, L. R. 
 2 C. P. 583 : 36 L. J. C. V. 337. See Apothecaries Co. v. Burt, 5 Ex. 363 ; 
 19 L. J. E.x. 334. 
 
 (o) Atkinson v. Newcastle <ۥ Gateshead Works Co., 2 Ex. D. 441, ques- 
 tioning Couchy. Steel, 3 E. & B. 402 : 23 L. J. Q. B. 121. See Apothecariei 
 Co. V. .Tones, [1893] 1 Q. B. at p. ^7 per Hawkins, J. 
 
 (j)) Fary v. Lawje, Cro. Car. 559 ; Hcywood v. Foster, 3 Lev. 360. 
 
 {q) 0. 68, R. 3. 
 
 B 2
 
 CHAPTER IL 
 
 1. Nominal damages. 1 4. Period for ivMcli Bamarjes ma,j 
 
 2. General Principles in Actions on be Assesssed. 
 
 Contracts— on Torts. 5. Heduction of Damages— Set-off. 
 
 2. Remote Damage— Costs of Actions. \ 
 
 It was laid clown in the preceding chapter that damages 
 are recoverable in all personal actions ; and not only may they 
 be recovered, but they must necessarily be so in every case 
 where the plaintiff is entitled to a verdict. The amount of 
 course depends upon the nature of the action and the evidence. 
 Where he gives no evidence of his loss, the damages generally 
 are, but need not necessarily, be nominal. 
 
 '• Nominal damages mean a sum of money that may be 
 spoken of, but has no existence in point of quantity " {a). 
 Therefore, where a plaintiff sued in an inferior court of record 
 for a debt of 50/., which was the extent of its jurisdiction, and 
 neither recovered nor sought to recover damages, except for 
 the purpose of obtaining costs, it was held that nominal 
 damages for this purpose did not place the debt beyond the 
 jurisdiction (b). 
 ]s:ommal " Evcry injury imports a damage, though it does not cost 
 
 damages where j^^g party one farthing ; for a damage is not merely pecuniary, 
 inJurirXqiie but an injury imports a damage when a man is thereby hin- 
 damno. dered of his right. As in an action for slanderous words, 
 
 though a man does not lose a penny by reason of the speaking 
 them. So if a man give another a cuff on the ear, though it 
 
 cost him nothing So a man shall have an action against 
 
 another for riding over his ground, though it do him no 
 
 («) PerMaule, J., 2 C. B. 499. 
 [h) Joule V. Taijlor, 7 Excli. 56
 
 NOMINAL DAMAGES. 
 
 tlamaire, for it is an invasion of his property, and the other has 
 no riirht to comt' thure " (r). 
 
 This rule applies equally whether the action is on a contract 
 or for a tort. A few examples will illustrate it. AVhere the 
 defendant, a banker, had refused tu pay the plaintiff's cheques, 
 thou<,'h he had funds in his hands, but no injury was proved, 
 nominal damages were «;iven (</). So where in an action by 
 the creditor airainst the surety, it appeared that the principal 
 debtor had indeed broken his afrreement ; but that the only 
 injury accruing to the creditor arose from his own voluntary 
 act, in making advances to which he was not bound (c). So 
 nominal damages may be obtained for imitating the plaintiif's 
 trade marks, or the wrappers in which his goods are made 
 up(/); or for misrepresentations as to the conditions of an 
 insurance comiiany, whereby the plaintiff was induced to effect 
 an insurance with it (//) ; or for an infringement of any ease- 
 ment or right connected with land, though no injury is proved, 
 or even alleged (//). 
 
 "Where the breach of a contract cannot possibly injure the 
 person with whom it is made, but may injure another person 
 for whose benefit it was made, the right of the f(jrmer to re- 
 cover more than nominal damages will depend upon the further 
 consideration, whether he is a trustee for the pei-son who is 
 substantially interested in the performance of the contract. 
 For instance : — the grantee of sporthig rights over the property 
 of the plaintiff covenanted to keep down rabbits, so that no 
 appreciable damage might be done to the crops. He failed to 
 do so, and considerable damage resulted to the crops of the 
 plaintift"s farming tenant. No injury whatever accrued to the 
 
 (c) Per Holt, C. J., Ashb)/ v. White, Ld. Raym. 938, 955 ; and see per 
 Erie, C. J., Smith v. Thackcrah, L. K. 1 C. P. 566 ; 35 L. J. C. P. 276. 
 Torts however to be actionable must be either intentional or negligent. 
 ataidcij V. Powell, [1890] 1 (^. 13. 86. 
 
 (d) Marzetti v. Williams, 1 B. & Ad. 415. 
 
 (e) Wurre v. Calccrt, 7 A. k. E. 143. 
 (/) Blofeld V. Payac, 4 B. & Ad. 410. 
 (\j) Pontifex V. Bi'jnohL 3 M. & G. 63. 
 
 (/() Eiidjrey v. Owen, 6 Exch. 353 ; Northam v. Hurley, 1 E. & B. 665 ; 
 Harrop v. Hirst, L. R. 4 Ex. 43 : 38 L. J. Ex. 1 ; Mcdway Navifjatton Co. 
 V. Earl of Jiomney, SO L. J. C. P. 236 : 9 G. B. N. S. 575 ; Claxton v. 
 Claxton, 7 Ir. Rep. C. L. 23. So in an action against a railway company for 
 non-fullilment of an agreement to build accommodation works. Brown v. 
 /b'. d; D. Jiy. Co., 34 L, J. Ex. 152. See post, as to injuries to casements, p. 
 443, ct seq.
 
 (5 NOI^riXAL DAMACxES. 
 
 plaintiff himself, and he never had paid, and was under no 
 liability to pay the injured farmer any compensation for the loss 
 arising from the rabbits. It was held that the plaintiff could 
 recover no more than nominal damages (*)• On the other 
 hand, where the father of a person, who was about to become a 
 member of Lloyds, gave to the managing committee of that 
 body a guaranty for the due fulfilment of any obligations his sou 
 might contract in his dealings as a member of that body, and 
 he did make default in such dealings ; it was held that Lloyds' 
 association might recover substantial damages upon the 
 guaranty, although the persons injured by the son's default were 
 outsiders, inasmuch as the guaranty was given for the benefit 
 of all such persons, and the plaintiffs were trustees of the 
 guaranty for every person who entered into a contract with the 
 son, as an underwriting member of Lloyds (j). 
 Cases in which -^ distinction, however, must be taken here between what 
 absence of loss y^Sij be called absolute and relative rights. A man has an 
 ofVcUon?^' absolute right to have a promise performed, or to keep his 
 estate inviolate ; and he may sue and obtain nominal damages 
 for an infringement of this right, although its maintenance is 
 no benefit to him, and its violation no injury. But there are 
 other rights which are merely relative to a particular benefit 
 which the plaintiff is to reap from their enjoyment. The 
 right and the benefit are co-extensive ; and if the benefit is 
 negatived the right ceases. An instance of this nature is the 
 right which every man has to the services of a public officer. 
 It is the duty of a sheriff" to make a true return to a writ 
 directed to him, and to arrest a debtor on proper process. 
 But this duty is only imposed upon him for the benefit of the 
 creditor ; and if he can absolutely negative the possibility of 
 any advantage accruing to the latter from the perfo nuance of 
 his duty, the plaintiff will not even be entitled to nominal 
 damages {7c). So in the case of an attorney. His employer has 
 a right to his best services, and may sue him for negligence ; 
 
 ((■) West V. IToughton, 4 C. P. D. 197, distinguishing Hobertson v. Wait 
 8 Excb. 299 : 23 L. J. Ex. 209. 
 
 U ) Lloyds V. Harper, 16 Ch. D. 290, 50 L. J. Ch. 140 ; re Flavell, 25 Ch 
 D. 89. 
 
 (/<•) Wylie V. Birch, 4 Q. B. 566 ; Williams v. Mostyn, 4 M. & W. 145 • 
 Btimson v. Farnham, L. K. 7 Q. 15. 175 : 41 L. J. Q. E. 52. See post, p.' 
 460, et seq.
 
 NOMINAL DAMAGES. 
 
 but if the attorney can prove affirmatively that even his dili- 
 gence would have been ineffectual, it is a bar to the action (/). 
 
 And so under the Ballot Act, 1872, damages for breach of 
 duty ou the part of the presiding- officer, whereby voting papers 
 were improperly marked, and thereby became useless, can only 
 be recovered by a person who has been injured by such a breach 
 of duty. But where the injury and the breach of duty are 
 established, the action lies without proof of either malice or 
 negligence (m). 
 
 On the same principle, where an application is made against 
 a director or other official of a company under s. 105 of the 
 Companies Act, 1802, it is not sufficient to show that he has 
 committed a breach of duty towards the company. The appli- 
 cant must go on to show that the act complained of has resulted 
 in loss to the funds and assets of the company {n). 
 
 Setting aside this exceptional class of cases, it may, how- 
 ever, be broadly stated that eveiy infringement of a right 
 involves a claim to nominal damages, though all actual dauuige 
 is disproved. And, accordingly, in a suit for general average, 
 in which a nonsuit was taken, because the jury were about to 
 give a verdict for the defendant on the ground that they could 
 not ascertain that any specific sum was the proportion due to 
 the plaintiff, the court ordered a verdict to )>e entered for the 
 plaintiff, with Gd. damages (o). It by no means follows, how- Damages not 
 ever, that in every such case only nominal damages are re- "o^Jnarwherc- 
 coverable ; this will be so when not only actual but contingent no actual 
 injury is negatived. But where there may be an injury, either ^"J"''^- 
 existing at present, though unascertained, or to arise hereafter, 
 and for which no fresh action could be brought, substantial 
 damages may be given at once. As, for instance, in an action 
 against a banker for not paying his customer's cheque {p) ; or 
 on a covenant to pay off incuml)rances (q), or a sum of money 
 
 (I) Godefroy v. Jay, 7 Bing. 413. 
 
 (m) Pickerinr, v. James, L. R. 8 C. P. 489 : 42 L. J. C. P. 21/. 
 
 (n) Cavendish Bcntinck v. Fcnn, 12 App. Ca. 6n2 : 57 L. J. Ch. 5o2. 
 
 (o) Fc'tze V. Thompson, 1 Taunt. 121. Where, however, in an action on 
 an account stated, the fact of an account having been stated was proved, but 
 the only evidence as to its amount was excluded, it was lieKl by the Court of 
 Queen's Bench (Erie, J., contra) that the plaintiff must be nonsuited, on the 
 ground that there cannot be a statement of an account without an item settled. 
 Lane v. Hill, 18 Q. B. 2r)2. 
 
 {p) Jiolin V. Steward, 14 C. B. 595 ; Larios v. Gurcti/, L. K. 5 P. C. 346. 
 
 ^5) Lethhridfje v. Mytton, 2 B. &; Ad. 772.
 
 GENERAL PRINCIPLES OF DA:MAGE. 
 
 Cases where 
 damage is of 
 the essence of 
 the action. 
 
 Difference 
 between 
 damnum and 
 ■injuria. 
 
 for which plaintiff was joiutly liable with defendant to a third 
 party (r). 
 
 The above cases must all be distinguished from those in 
 which the existence of an injury is necessary to constitute the 
 infringement of a right. There damage is an essential element 
 in the right of action, and not merely a consequence flowing 
 from it. For instance, every man has a right to deal as he 
 pleases Avith his own property, provided his doing so does not 
 cause an injury to the property of another. The moment the 
 injury follows, the right of another is invaded, and that which 
 was innocent becomes wrongful. A man has a right to dig, or 
 to build, or to carry on any manufacture he likes, upon his own 
 land. But if by digging he lets down the land or buildings 
 of his neighbour, which have a right to support, or if by 
 building he darkens windows which have acquired a right to 
 light, or if by his manufacture he creates an appreciable 
 nuisance to those around him, his act becomes wrongful (s). 
 A landlord is entitled to keep game on his land in the usual 
 and ordinary manner, but he is not entitled to keep it or allow 
 it to increase to such an unreasonable extent as to be a nuisance 
 to his neighbours (/). 
 
 Nor must it be forgotten that there is a difference between 
 harm and injury, dam/mm and injuria. A man is not liable to 
 action, still less to substantial damages, merely because some 
 act of his has caused loss to another, unless that other had a 
 right to be protected against any loss flowing from such an 
 act. K man cannot give to his own wares a name which has 
 been adopted by a rival manufacturer, so as to make his wares 
 pass as being manufactured by the other. But there is nothing 
 to prevent him giving his own house the same name as his 
 neighbour's house, though the result may be to cause incon- 
 venience and loss to the latter {u). A trader, or an association 
 
 (r) Loosemoorc v. Hadford, 9 I\[. &: W. 657. 
 
 (s) Bacihouse v. Bonomi, 9 H. L. Cases, 503 : 34 L. J. Q. B. 181 • 
 Tapling v. Jones, 11 H. L. Cases, 290 : 34 L. J. C. P. 342 ; Smith v 
 Thackerah, L. R. 1 C. P. 564 : 35 L. J. C. P. 276 ; St. Helens iimeltiv'n 
 Co. V. Tippifif/, 11 H. L. Cases, 642 : 35 L. J. Q. B. 66 ; Fletcher v. Smith, 
 2 App. Cas. 781 : 47 L. J. Ex. 4 ; Orr Eiving v. Colquhoun, ibid. 839 - 
 Jiobinson v. Kilvert, 41 Ch. D. 88 : 58 L. J. Ch. 392. ' 
 
 (t) Farrer v. Nelson, 15 Q. B. D. 258 : 54 L. J. Q. B. 385. 
 
 (m) Johnston v. Orr Ewimj, 7 App. Cas. 219 ; Bai/ v. Brownrigg, 10 Ch. 
 D. 294 ; Kcehlc v. Jlickcringill, 11 East, 574, n.
 
 GENERAL PRINCIPLES OF DAMAGE. V 
 
 of traders, may conduct his or their business in a manner so 
 profitable to their customers as practically to monopolise the 
 trade for themselves, and to exclude from it all other persons 
 who do not possess the same capital or facilities as themselves, 
 but such a system is neither unlawful nor actionable. If 
 neither the end contemplated by the agreement, nor the means 
 used for its attainment were contrary to law, the loss suffered 
 by the rival trader would be damnum sine injuria (x). 
 
 Damages in debt are in general merely nominal for its deten- Damages ia 
 tion, and where the plaintiff has actually received payment of ^^^^• 
 the debt, he cannot afterwards commence an action for these 
 damages (t/). 
 
 We may now proceed to the more important inquiry, as to 
 the general rules which determine the amount of substantial 
 damages. It will be convenient to examine in order, 
 
 I. The principles upon which damages are given in actions 
 of contract and tort. 
 
 II. What damage is inadmissible on the ground of remote- 
 ness. 
 
 III. The period of time in reference to which damages may 
 be assessed. 
 
 IV. The cases in which evidence may be given to reduce 
 damages. 
 
 I. The theoretical idea of damages is, that they are to be Damages not a 
 a compensation and satisfaction for the injury sustained (z). J^^^^ftfon^"'"' 
 Practically, however, there can hardly ever be a case in Avhich 
 they are completely so. Take the simplest instance, viz., the 
 non-payment of a debt. Put out of the question every element 
 of mental suffering caused by the delay. There may be a clear 
 amount of pecuniary loss flowing in the most direct manner 
 from it. The creditor may become insolvent, and be perma- 
 nently ruined. He may have to borrow money at an extrava- 
 gant rate of interest. Even if nothing of the sort happens, 
 still his taxed costs of suit never repay him for the amount he 
 has expended in the action ; for none of this, however, can he 
 
 {x) Mogul Steam Ship Co. v. McGregor, [1892] A. C. 25 : 61 L. J. Q. B. 
 295. 
 
 (y) Bcauviont v. Greathcad, 2 C. B. 494. See more fully upon this point, 
 post, p. 233, et seq. 
 
 {z) 2 Bl. Com. 438.
 
 lO GENERAL PRINCIPLES OF DAMAGE. 
 
 be compensated. The amount of the debt, with interest, and 
 taxed costs is all he can recover. And so if the defendant's 
 negligence cause him the loss of a limb. The diminution of 
 his future enjoyment of life can, of course, never be made up 
 to him by money ; but the injury may even make it utterly 
 impossible for him to continue his profession. Yet the jury 
 could not in such a case award a successful surgeon such a sum 
 as would purchase an annuity equal to his earnings, without 
 making deductions and allo\vance8 for contingencies, which 
 
 , might materially affect his pecuniary position {a). 
 Enle in actions In the case of Contract the measure of damages is much more 
 I strictly confined than in cases of tort. As a general rule, the 
 primary and immediate result of the breach of contract can 
 alone be looked to. Hence, in the case of non-payment of 
 money, no matter what the amount of inconvenience sustained 
 by the plaintiff, the measure of damages is the interest of the 
 money only (h). So where the contract is to deliver goods, 
 replace stock, or convey an estate, the profit which the plaintiff 
 might have made by the resale of the matter in question cannot 
 in general be taken into account ; nor the loss which he has 
 suffered from the fact of his ulterior arrangements, made in 
 expectation of the fulfilment of the bargain, being frustrated. 
 The principle of all these cases seems to be, that, in matters of 
 contract, the damages to which a party is liable for its breach 
 ought to be in proportion to the benefit he is to receive from 
 
 I its performance. Now this benefit, the consideration for his 
 
 I promise, is always measured by the primary and intrinsic worth 
 of the thing to be given for it, not by the ultimate profit which 
 
 ■ the party receiving it hopes to make when he has got it. A 
 bottle of laudanum may save a man his life, or a seat in a 
 railway carriage may enable him to make his fortune ; but 
 neither is paid for on this footing. The price is based on the 
 
 (n) Phillips V. Z. 4- >S'. W. Ry. Co. 5 Q. B. D. 78 : 49 L. J. Q. B. 233. 
 
 {h) Per Willes, J., Fletcher v. Tayleur, 17 C. B. p. 29 : 25 L. J. C. P. p. 
 66 ; Per Bovill, C. J., British Columbia Saw Mill Co. v. Nettleship, L E y 
 0. P. at p. 506 : 37 L. J. C. P. at p. 240. See also Buchcorth v! Eua'rt 
 2 H. & C. 129 : 33 L. J. Ex. 24 ; Prehn v. Iloyal Bank of Liverpool, post 
 p. 20 ; Pe Emjlish Bank of R. Plate, Exp. Bank of Brazil, []893] 2 Ch' 
 at p. 446 : 62 L. J. Ch. 578 per Chitty, J., and Wallis v. Smith, 21 Ch" 
 D. at p. 257 :_ 52 L. J. Ch. 145, where Jessel, M. R. de&cribed the Enc^lish 
 Law as not quite consistent with reason. "
 
 GENERAL PRINCIPLES OF DA^LA.GE. 11 
 
 market value of the tliinj^; sold. It operates as a liquidated 
 estimate of the worth of the contract to both parties. It is 
 obviously unfair, then, that either party should be paid for 
 carrying out his bargain on one estimate of its value, and 
 forced to pay for failing in it on quite a different estimate. 
 This NYOuld 1)0 making him an insurer of the other party's 
 profits, without any premium for undertaking the risk. 
 
 The leading case on the subject of damages arising from a 
 breach of contract is that of Hadlcij v. BaxendaJe (c). It arose 
 out of the following facts : 
 
 The plaintiffs were owners of a steam-mill. The shaft was iTadley v. 
 broken, and they gave it to the defendant, a carrier, to take to -^'"^^jK^ftZr. 
 an engineer, to serve as a model for a new one. On making the 
 contract, the defendant's clerk was informed that the mill was 
 stopped, and that the shaft must be sent immediately. He delayed 
 its delivery, the shaft was kept back in consequence, and in an 
 action for breach of contract they claimed as specific damages the 
 loss of profits while the mill was kept idle. It was held that if the 
 carrier had been aware that a loss of profits would result from 
 delay on his part, he would have been answerable. But as it did 
 not appear he knew that the want of the shaft was the only 
 thing which was keeping the mill idle, he could not be made 
 responsible to such an extent. The Court said " "We think the 
 proper rule in such a case as the present is this ; — where two 
 parties have made a contract which one of them has broken, 
 the damages which the other party ought to receive in respect 
 of such breach of contract should be such as may fairly and 
 reasonably be considered either arising naturally, i.e., according/ 
 to the usual course of things, from such breach of contract! 
 itself, or such as may reasonably be supposed to have been in' 
 tiie contemplation of both parties at the time they made the 
 contract, as the probable result of the breach of it. Now if the 
 special circumstances under which the contract was actually 
 made were communicated by the plaintiffs to the defendant, 
 and thus known to both parties, the damages resulting from 
 the breach of such a contract which they would reasonably 
 contemplate, would be the amount of injury which would 
 ordinarily follow from a breach of contract under these special 
 
 (c) 9 Exch. 341, 354 : 23 L. J. Ex. 179, 182. 
 
 Rule laid 
 down.
 
 12 GENERAL PRINCIPLES OF DAMAGE. 
 
 circumstances so known and communicated (f). But on the 
 other hand, if these special circumstances were whoHy unknown 
 to the party breaking the contract, he at the most could only 
 be supposed to have had in his contemplation the amount of 
 injury which would arise generally, and in the great multitude 
 of cases, not affected by any special circumstances, from such a 
 breach of contract. For had the special circumstances been 
 known, the parties might have specially provided for the breach 
 of contract by. special terms as to the damages in that case, and 
 of this advantage it would be very unjust to deprive them. 
 The above principles are those by which we think the jury 
 ought to be guided in estimating the damages arising out of 
 any breach of contract." 
 
 The rule laid down in Hadley v. Baxendale was intended to 
 
 settle the law (d), and it has been accepted both in England 
 
 and America (e). It has been supposed to lay down three 
 
 Three rules in rules. First, that damages which may fairly and reasonably be 
 
 Hadley y. considered as naturally arising from a breach of contract, 
 
 JjClXCTlCiCtlC, 
 
 according to the usual course of things, are always recoverable. 
 Secondly, that damages which would not arise in the usual 
 course of things from a lireach of contract, but which do arise 
 from circumstances peculiar to the special case, are not recover- 
 able unless the special circumstances are known to the person 
 who has broken the contract. Thirdly, that where the special 
 circumstances are kuown, or have been communicated to the 
 person who breaks the contract, and where the damage com- 
 plained of flows naturally from the breach of contract under 
 those special circumstances, then such special damage must be 
 supposed to have been contemplated by the parties to the con- 
 tract, and is recoverable. A further rule is implied, viz., that 
 
 (c) It lias been said that this sentence is to be considered as an exemplifica- 
 tion of the second branch of the rule rather than as part of the rule, per 
 Ld. Esher, M. R. , Hammond v. Bussexj, 20 Q. B. D. at p. 88 : 57 L. J. Q. B. 58. 
 
 {d) See per Pollock, C. B. , Wilson v. jVeuport Dock Co., L. R. 1 Ex. at 
 p. 189 : 35 L. J. Ex. at p. 103. It is too late now to question it. See pc7' 
 Ld. Esher, M. R., Hamniond v. Busscij, 20 Q, B. D. at p. 87. 
 
 (c) The leading case in America is Grijjin v. Cohcr, 16 N. Y. 489, where 
 the rule was stated to be that "the damages must be such as may fairly be 
 supposed to have entered into the contemplation of the parties when they 
 made the contract — that is, they must be such as might naturally be expected 
 to follow its violation ; and they must be certain, both in their nature and in 
 respect to the cause from which they proceed."
 
 FIRST RULE IN HADLEY V. BAXEXDALE. 13 
 
 damage which cannot be considered as fairly and naturally 
 arising from breach of contract under any given circumstances, 
 is not recoverable, whether those circumstances were or were 
 not known to the person who is being charged. 
 
 It may be convenient to examine the cases, as they fall under First mle. 
 these rules. First, cases in which the damage complained of ai^^n^fu t^g 
 arises in the usual course of things. The simplest illustration natural course 
 of this rule is the every day case of non-payment of money, or ° ^""ss- 
 non-delivery of goods. In the former case, the party either 
 loses the benefit of his money, or has to provide himself with 
 money elsewhere. In either alternati\'e the damage suffered is 
 the usual interest. In the latter case, the party must provide 
 goods somewhere else, if possible. The damage is the difference 
 of price, if he can do so, ur the loss he has incurred, if he cannot. 
 Other cases, however, are of a less simple character, though 
 falling under the same rule. For instance, in some cases an 
 article possesses a varying value, being more saleable at some 
 seasons and less saleable at others. Skates and furs are more 
 saleable at the beginning of winter ; muslins and silks at the 
 beginning of summer. This difference in value would be pro- 
 bably taken into consideration in estimating a breach of con- 
 tract in resjwct to such articles. 
 
 The case of Fletcher v. TayUitr (f) is an instance of this class. Value of 
 There the defendant had contracted to build a ship, which was jeut on season. 
 to be delivered to the plaintiff on the 1st of August, 1854. It 
 was not delivered till INIarch, 1855. The vessel was intended 
 by the plaintiffs, — and from the nature of her fittings the 
 defendants must have known the fact, — for a passenger ship in 
 the Australian trade. Evidence was given that freights to Aus- 
 tralia were very high in July, August, and September, but fell 
 in October, and continued low till May, whsn the vessel sailed ; 
 and that had she been delivered on the day named, she could 
 have earned 2750?. more than she did. On the other liand, it 
 was shown that the plaintiffs would have extended the time for 
 delivery till the 1st October, if the defendants would have 
 bound themselves to that day under a demurrage (which how- 
 ever was refused) ; and that they had stated as their reason for 
 wishing to have the ship then, " that after that time the days 
 
 (/) 17 C. B. 21 : 25 L. J. C. P. 65.
 
 14 GKNERAL PRINCIPLES OF DAMAGE. 
 
 would be shortening- so fast that they would be seriously in- 
 convenienced and prejudiced in fitting the vessel out." The 
 judge charged in the words of HadJcij v. Baxendak, and the 
 jury found a verdict of 2750Z. An attempt was made to set 
 aside the verdict for excess of damages, on the ground that if 
 the plaintiff's offer had been compUed with, the loss of freight 
 would have been suffered ; and that the damages should be 
 measured rather by the species of loss which they had them- 
 selves pointed out, than by that which they afterwards set 
 up. The rule was refused. 
 
 In this case the primary object of the ship was to earn 
 freight by carrying passengers. The defendant was to be paid 
 the value of such a ship. Any delay in its completion would 
 clearly subject it to a diminution in value by a fall of freight. 
 The measure of that diminution in value was accurately 
 expressed by the difference in profits obtained on the first 
 voyage. 
 Damages for Similarly in Wilson v. Lancasldre and Yorlishire BaiJtcaij 
 
 loss of season. ^^^ (^^-^^ ^-^^ jjl^intiff', a cap manufacturer at Cockermouth, 
 bought cloth at Huddersfield for the purpose of making it up 
 into caps, which he was in the habit of selling through the 
 country by travellers. The cloth was delivered to the de- 
 fendants for carriage to Cockermouth, and was delayed by 
 them so long that the plaintiff did not receive it in time to 
 manufacture it into caps, the season having passed before he 
 could execute the orders obtained by his travellers. He claimed 
 damages for the loss of his season. It was held that he was 
 entitled to them, assuming the loss of the season to mean, not 
 the loss of the profits which he would have made by the sale of 
 the caps, but the diminished value of the cloth to him by 
 reason of its delivery at the end of the season instead of at the 
 beginning. 
 Fall in market On the same principle a fall in the market value cf goods, 
 value of goods, between the date at which they should have been, and the date 
 at which they were delivered, has been held recoverable, 
 although the fall was what might be termed accidental, and 
 in no Avay arising from the nature of the article. In CoUard 
 
 {[/) 9 C. B. N. S. 632 : 30 L. J. C. P. 232, followed Schuke v. Great 
 Eastern Ej. Co., 19 Q. B. D. 30 : 56 L. J. Q. B. 442.
 
 FIRST RULE IX IIADLEY l\ BAXENDAI>E. 15 
 
 V. Soitfh Eastern Raihvaij Co. {h), hops were entrusted to the 
 defendants for carriage. They were delayed and delivered in a 
 partly damaged state through exposure. The plaintiff dried 
 them, which caused further delay, and then sold them. At the 
 time of sale the market price of undamaged hops had fallen 
 from 18/., their value, when delivered in their damaged state, 
 to '.I/, A further loss was suffered in consequence of the actiuil 
 damage to part of the hops Irom the damp. It appeared that 
 only a portion of the hops in each pocket had been injured, 
 and that this part might have been removed, and tilled up with 
 good hops, or the uninjured part might have been sold sepa- 
 rately. But it was proved that it was the custom to sell hops 
 in their original bags, these being marked by the Excise, and 
 that any transfer or filling up would have been looked upon 
 Avith suspicion. Under these circumstances it was held that the 
 defendants were liable, not only to pay for the dej)reciation 
 caused by the actual damage to part, but also for the fall in 
 value of the whole, caused by the delay consequent on restoring 
 them as far as possible to a marketable condition, ;^^artin, 13., 
 said, " AVe are to assume that these hops ought to have been 
 delivered on a certain day ; and further, we are to assume that 
 by reason of the contract being broken by the defendants, these 
 hops could not be brought into the market until a certain other 
 day. It was proved that if they had been brought to market 
 they would have produced a certain sum, but that when they 
 were brought to market at a future day we find the market 
 price had fallen, and the articles had fallen in value by an 
 amount of G5/. If that is not a direct, immediate, necessary, 
 and essential consequence of the breach of contract by the 
 defendants, I cannot understand what it is," 
 
 Channell, B., agreed with this opinion, but thought that the gelling value 
 doctrine of HadJcy v, Baxendale did not apply ; apparently t''^ test of 
 because the carriers had no notice that the hops were intended *^ '^^^'^^'^''^ ^°"' 
 for sale, and the non-damaged parts were as good as ever if the 
 plaintiff" had used them himself. But it is submitted that value 
 cannot be estimated by two different standards, the value for 
 use and the value for sale. Still less can a person who has 
 broken his contract and thereby reduced the selling value of 
 
 (A) 7 H, & N. 79 : 30 L. J, Ex. 393.
 
 JP GENERAL PRINCIPLES OF DAMAGE. 
 
 an article, be allowed to select some other standard of value 
 
 which would be more favourable to himself. Suppose a person 
 
 hires a horse with an express agreement not to hunt him, and 
 
 he does so, and the horse falls and blemishes his knees, and 
 
 thereby diminishes his selling value. Evidence would surely 
 
 be worthless, if not inadmissible, which went to show that for 
 
 actual use he was as good as before. The owner has a right 
 
 to say, the value of my prop-rty is diminished by the only 
 
 test to which it can be subjected, viz., what it will fetch in the 
 
 market. 
 
 Same rule in The same rulc is also followed in America, where it is held, 
 
 America. ic ^j^^^^^ ^Yhere a carrier, from, mere negligence or plain violation 
 
 of duty, omits to transport merchandise within a reasonable 
 
 time, and its market value falls in the meantime, the true rule 
 
 of damage is the difference in its value at the time and place 
 
 it ought to have been delivered, and the time of its actual 
 
 delivery " (i). 
 
 Held not to In all the'cases last referred to the carriage was by land. 
 
 apply to car- jj^ .^ j^-^j^.q i-ccent case, however, it has been decided that the 
 
 rieis 7 .sea. ^^^^^ princiiilc does not apply to cases of carriage by sea. An 
 
 Tiic Parana. ^ ^ , , . •, . t /-< , i ,i • /• 
 
 action was l)rought m the Adnnralty Court by the assignee of 
 
 goods against a British ship, to recover damages incurred from 
 an unreasonable delay in their carriage. Damages being 
 admitted, a reference was made to the Eegistrar, assisted by 
 merchants, to find the amount. He found that a fall in the 
 market value of the goods had taken place between the time of 
 actual delivery and the time at which they ought to have been 
 delivered. This amount, however, he refused to grant, saying 
 that it had never been the practice in the Court of Admiralty 
 to give such damages, and though it constantly happened that 
 by accidents, such as collisions, goods were delayed in their 
 arrival, it never had been the custom to include in the damages 
 the loss of market. He reported therefore that the plaintiff 
 was only entitled to 5 per cent, interest on the in^'oice value of 
 the goods during the period of delay. On appeal, Sir Eobert 
 Phillimore awarded the full damages claimed, on the authority 
 of the previous cases. But the report of the Registrar was 
 confirmed by the Court of Appeal, and that of Sir Robert 
 
 (t) Ward V. New Yorh Central Bi/., 47 N. Y. 29 ; cited 1 P. D. 46J. 
 See, too, Borries v. Hutchinson, IS C. B. N. S. 445 : 34 L. J. C. P. 169.
 
 FIRST RULE IN HADLEY V. BAXEXDALE. 17 
 
 Pliillimore was reversed. ^Jlellish, L.J., said, "If goods are The Parana. 
 
 sent by a carrier to bs sold at a particular market ; if, for 
 
 instance, beasts are sent bj railway to be sold at Smithfield, or 
 
 fish is sent to be sold at Billinjsjato, iiiid, by reason of delay 
 
 on the part of the currier, they have not arrived in time for 
 
 the market, no doubt damag^e for the loss of market may bj 
 
 recovered. So if i^oods are sent for the purpose of being sold 
 
 in a particular season, when they are sold at a higher pric3 
 
 than they are at other times, and if by reason of breach of 
 
 contract they do not arrive in time, damages for loss of market 
 
 may be recovered. Or if it is known to both parties that the 
 
 i::oods will sell at a Letter price if they arrive at one time than 
 
 if they arrive at a later time, that may be a ground for giving 
 
 damages for their arriving too late, and selling for a lower 
 
 sura." He then pointed out that the cases were all cases of 
 
 can-iage by land, and were treated by the courts as if the goods 
 
 were consigned for the purpose of immediate sale. "The 
 
 difference between cases of that kind and cases of tl.e carriage 
 
 of goods for a long distance by sea seems to be very obvious. 
 
 In order that damages may be recovered, we must come to two 
 
 conclusions — first, that it was reasonably certain that the goods 
 
 would not be sold until they did arrive ; and, secondly, that it 
 
 was reasonably certain that they would be sold immediately 
 
 after they arrived, and tiiat that was known to the carrier at 
 
 the time when the bills of lading were signed. It appears to 
 
 nie that nothing could be more uncertain than either of those 
 
 two assumptions in this case. Goods imported by sea may be, 
 
 tmd are every day, sold while at sea." " In this particular case 
 
 the plaintiff did not sell the goods when they arrived, for he 
 
 sold them some montlis afterwards, when a further fall had 
 
 taken place in the market. How can we tell that he would not 
 
 have done exactly the same thing if the goods had arrived in 
 
 time ? Therefore, it seems to me, that to give these damages 
 
 would be to give speculative damages — to give damages when 
 
 we cannot be certain that the plaintiff would not have suffered 
 
 just as much if the goods had arrived in time " {Ic). The same 
 
 rule has been followed where the delay in the arrival of the 
 
 {k) The Parana, 1 V. D. 452 ; 45 L. J. Adm. 108, reversed on appeal, 
 2 P. D. 118. 
 
 M.D. C
 
 IS 
 
 GENERAL PRINCIPLES OF DAMAGE. 
 
 Damages 
 wliere good^ 
 cannot be 
 replaced. 
 
 Expenses 
 jirising ironi 
 breach of 
 contract. 
 
 goods was caused by a collision at sea, and the owners of the 
 goods claimed damages against the colliding vessel. It was 
 jicld that the loss of market u-as equally irrecoverable whether 
 the action was upon a contract or for a tort (/). 
 
 Where there has l)een an absolute non-delivery of goods, 
 either by breoch of contract to deliver or to carry, the measure 
 of damages is the market value at the time when and place 
 where the goods ought to have been delivered, independently 
 of any circumstances peculiar to the plaintiff, but deducting 
 therefrom what he would have had to pay to get the goods, by 
 Avay of freight or otherwise. The price at which the owner of 
 the goods may have contracted to sell them to any third party, 
 is not to be taken in preference to the market value at the time 
 the goods should have arrived, whether it is greater or less than 
 that value (m). But if the goods cannot be replaced for want 
 of a market, their value must be estimated in some other way. 
 If there has been a contract to resell them, the price at which 
 such contract was made will be evidence of their value (n). If 
 there has been no such contract, the market value may be esti- 
 mated by adding to their price at the place where they were 
 purchased the costs and charges of getting them to their place of 
 destination, if any such were incurred, and the usual importer's, 
 profits (o). 
 
 On the same principle, any increased cost to which a person 
 is put, from the necessity of doing himself, what he had con- 
 tracted that some one else should do for him, is recoverable, 
 if Avhat he does is the fair and proper thing to do under the 
 circumstances. For instance, if a railway company fail to 
 convey a passenger to the destination for which he has paid, he 
 may charge them for a special conveyance, or for hotel charges, 
 rendered necessary by the delay (p). But he will not be 
 justified in taking a special train, merely to save himself the 
 
 (/) The Nutting Hill, P. D. 10.5 ; 5?, L. J. P. D. & A. 56. See^jo.s/, p. 48. 
 
 (m) Rodocanachi v. Mlllmrn, 18 (I P.. D. 67 ; 56 L. J. Q. B. 202. 
 
 (») France v. Gaudct, L. R. 6 Q. B. 199 ; 40 L. J. Q. B. 121 ; 9 C. B. 
 N. S. C32 : Rorries v. Hutchinson, 18 C. B. N. S. 445 ; 34 L. J. C. P. 169 .- 
 Godicin v. Francis, L. E. 5 C. P. 295 ; 39 L. J. C. P. 121 : per Brett, M. R. 
 15 Q. B. D. p. 89. 
 
 (o) (yilanlanv. G. W. Rt/. Co., 6 B. & S. 484 ; 34 L. J. Q. B. 154. 
 
 (;)) Hamlin v. G. K. Ft/. Co., 1 H. & N. 408 ; 26 L. J. Ex. 20 : per 
 Blackburn, J., Hinde v. Liddcll, L. R. 10 Q. B. at p. 268 ; 44 L. J. Q. B. 
 105.
 
 FIRST EULE IN HADLEY V. BAXENDAI.E. 19 
 
 tedium of waitino; for one which would take him to his 
 journey's end a httle later, and without some special and 
 adequate object to be gained (q). It is, obvious, however, that 
 there might be circumstances in which such a course would be 
 perfectly justifiable. Take, for instance, the case of a physician 
 going to attend a patient, or a barrister going to plead a case. 
 And so where the defendants broke their contract to carry a 
 cargo of coal for the plaintiff, it was held that they were liable 
 to pay not only the increased freight, at which he had to hire 
 another vessel, but also the increased price he had to pay for his 
 coal ; the custom of the port being that coal could not be 
 secured until a ship was ready to take it away (/•). 
 
 In a case in the Court of Exchequer the rule was applied in Special 
 an action for damages resulting from the non-payment of money jJo™p|yn,e,*][" 
 under a special contract to do so. The defendants, bankers at of money. 
 Liverpool, undertook to accept the drafts of the plaintiffs' 
 Alexandria firm, the plaintiffs undertaking to put them in funds 
 to meet the bills at maturity, and the defendants receiving 
 ^ per cent, for the accommodation. IJills were accepted under 
 this arrangement, and the plaintiffs duly provided the defen- 
 dants with funds. Before the bills became due the defendants 
 stopped payment, and gave notice to the plaintiff' that they 
 would be unable to meet the bills. The plaintitTs arranged 
 with another house at Liverpool to take up the bills, paying 
 '2h per cent, commission. They were also obliged to pay to the 
 holders the expenses of protesting the Ijills, and incurred 
 expenses in telegraphic communication between Liverpool and 
 Alexandria. In an action for breach of the contract to pay the 
 bills out of the funds provided, it was urged on behalf of the 
 defendants that this was a mere case of non-payment of money, 
 and that the damages should be limited to the amount of the 
 bills and interest. But the Court held that the ordinary rule 
 applicable to damages for non-payment of a debt or bill was not 
 applicable, and, there being a special contract, the damages 
 reasonably flowing from its breach might be recovered, and the 
 plaintiffs were therefore entitled to the commission which they 
 
 iq) Le Blanche v. L. .£: N. IV. I?>/. Co., 1 C. P. D. 286 ; 45 L. J. C. P. 
 521. 
 
 (r) Fcatherston V. W!l!cinson, L. R. 8 Ex. 122 ; 42 L. J. Ex. 78. See 
 Millen v. Brash, 8 Q. B. D. 35. 
 
 C 2
 
 20 
 
 GENERAL PRINCIPLES OF D.UIAGE. 
 
 Inconvenience 
 arising from 
 breach. 
 
 Damages from 
 breach of 
 warranty. 
 
 had paid and the telegraphic and notarial expenses. Kelly, 
 C.B., seems to have considered the damage as within the 
 contemplation of the . parties ; but Martin, B., as on many 
 other occasions, protested against this test, on the ground that 
 parties, when they make contracts, contemplate fulfilling them 
 and not breaking them. There was a difference of opinion also 
 as to whether the plaintiffs were entitled to their damages as 
 general or special damage (s). 
 
 Not only cost, but inconvenience caused by a breach of con- 
 tract, may be paid for by damages, provided the inconvenience 
 is substantial and appreciable. AVhere a railway company set 
 down a man and his wife and family at a wrong station at 
 night, and they could find neither conveyance nor hotel, and 
 had to walk several miles in the rain, this was held to be a 
 ground for substantial damages (f). But the mere breach of 
 a contract will not necessarily involve anything beyond merely 
 nominal damages, where the inconvenience caused is only a 
 matter of vexation and annoyance, incapable of being stated in 
 a tangible form, or assessed at a money value (w). 
 
 A recent case in the Common Pleas (x) seems strictly to come 
 within the rule we arc now discussing. There the defendant 
 sold a cow with a warranty that it was free from disease. It 
 was, in fact, suffering from foot and mouth disease. It died, 
 and infected other cows with which it was placed ; and they 
 died also. It was held, that he was liable for the entire loss. 
 The case seems to have been put upon the special fact, found 
 by the jury, that the defendant knew, or must be taken to have 
 known, that the cow would be placed with other cows, which 
 would naturally be infected. Of course the finding put the 
 case beyond doubt. But I imagine that no such finding was 
 necessary. As Grove, J., put it, " unless the cow in question 
 was kept in solitary confinement, it would naturally be expected 
 to ^^ herd with other cows" (y). No special knowledge was 
 
 (s) Prchn v. Royal Bank of Liverpool, L. R. 5 Ex. 92 ; 39 L. J. Ex. 41. 
 See for other instances of special damage recovered in somewhat similar cases 
 for breach of contract to meet drafts, Boyd v. Fiit, 14 Ir. Com. L. Rep 43 • 
 Larios v. Gurdy, L. R. f) P. C. 346. 
 
 {t) Hohhs v. L. cL- ,S'. 11^ Ihj. Co., L. R. 10 Q. B. Ill ; 44 L. J. Q. B. 49 
 See. too, Burton v. PinkerUm, L. R. 2 Ex. 340 ; 36 L. J. Ex. 137. 
 
 (u) Hamlin v. G. N. By. Co., 1 H. & N. 408 ; 26 L. J. Ex. 20. 
 
 (x) Smith V. Green, 1 C. P. D. 92 ; 45 L. J. C. P. 28. 
 
 (y 1 C. P. D. 96.
 
 FIRST llULi: IN IIADLEY V. BAXEXDALE. 21 
 
 wanted to make it likely that a breach of the warranty would 
 lead to exactly the consequences which happened. Cows are 
 by nature gregarious, and the defendant could only have 
 exonerated himself by making out that he had express reason 
 to believe that this particular cow would be kept in an abnormal 
 state of seclusion. 
 
 This case was followed in a very recent one, where a carriage 
 builder supplied an unfit pole, which broke, upon which the 
 horses became frightened and suffered injury. It was held that 
 the proper question to leave to the jury on the point of damages 
 was, whether the injury to the horses was or was not a natural 
 consequence of the defect in the pole. A finding in the 
 alfirmative would entitle the plaintiff to recover the loss which 
 had so accrued (z). 
 
 In the first of these two cases, it will be observed, there was Rule wlieif? 
 an express warranty that the cow was free from disease. In f'^re is no 
 
 T 1 ■ T T 12J. warranty or 
 
 the second there was an implied warranty that the pole was nt quality. 
 for the use it was to be put to. But where the seller distinctly 
 refuses to warrant an article, Avhich is sold with all its faults, 
 and there is no misrepresentation as to its quality, and no 
 attempt to conceal its defects, and the article is in ftict that 
 Avhich it is sold as being, no undertaking can be implied that it 
 is free from any particular defects, and consequently no respon- 
 sibility can be incurred from injury that may arise from its 
 possessing such defects. Even if the sale of the article with 
 such defects is expressly forbidden by statute, no liability is 
 incurred, except as regards persons who were injured in the 
 particular manner which the statute aimed at preventing. All 
 this was laid down by the House of Lords, in the case of 
 Ward V. Holhs (a). There the defendant sold thirty-two pigs 
 in open market, under conditions of sale which expressly 
 negatived any warranty, and stated that the lots were to be 
 taken with all faults. Almost immediately after removal the 
 pigs sickened and died of typhoid fever, and infected other pigs 
 belonging to the purchaser, which also died. The Court of 
 Queen's Bench affirmed a verdict which awarded to the plaintiff 
 
 (s) Randall v. Neuson, 2 Q. B. D. 102 ; AQ L. J. Q. B. 259. See, too. 
 Waters \. Towers, 8 Exch. 401. 
 
 (a) 4 App. Oa. 13, 4S L. J. Q. B. 281, affirming decision of Court of Appeal ; 
 3 Q. B. D. 150 ; which reversed the original decision, 2 Q. B. D. 331.
 
 22 GENEUAL PRINCIPLES OF DAMAGE. 
 
 the full amount of his loss under both heads. Their decision 
 was reversed by the Court of Appeal, and that reversal was 
 affirmed by the House of Lords upon the principles above 
 stated. Lord Cairns, C, seemed inclined to admit that the 
 defendant might have been liable if his act had brought about 
 the very mischief which the Contagious Diseases (Animals) 
 Act was intended to prevent ; that is to say, if by sending 
 diseased animals into a public place, he had infected other 
 animals which were in the h'xme place ; but this he had 
 not done. 
 
 An important decision as to consequential damages under the 
 first rule was given under the following circumstances {b). A 
 horse fair was about to be held at Eugelcy, and the plaintif!' 
 engaged stabling in advance for twelve horses from the 
 defendant. On arrival they were put into the stabling, and 
 their clothes were taken oft' preparatory to their being cleaned. 
 The defendant, however, had in breach of his contract, let the 
 same stabling to another person, and the latter Avith the help of 
 the defendant's servant, turned the plaintiff's horses out without 
 their clothing. Several hours elapsed before the plaintiff" could 
 find fresh accommodation. Four of the horses caught cold, 
 which depreciated their value. The Court held that damages 
 for this loss of value might be recovered in an action for breach 
 of contract. Brett, L.J., said, " The question as to remote- 
 ness of damage has become a difficult one, since according to 
 the case of Hadley v. Baxendalc, it is for the coui't, and not the 
 jury to determine whether the case comes within any of the 
 following rules, namely : first, whether the damage is the 
 necessary consequence of the breach ; secondly, whether it is 
 the probable consequence ; and thirdly, whether it was in the 
 contemplation of the parties when the contract was made. 
 These two last are rather questions of fact for a jury, than of 
 law for the Court, to determine. Now the question in this case 
 is, whether the fact of some of these horses catching cold is 
 
 {!,) McMahon v. Field, 7 Q. B. D. .'iOl, at pp. 595, 597. See, too, Coven- 
 ti-i; V. G. E. Jly. Co., 11 Q. B. D. 776, where the defendants having negli- 
 gently issued two delivery orders for the same consignment, were held liable 
 to the plaintiffs, who, on the faith of the orders, had made two advances 
 instead of one. ' See also Seto7i v. Lafonc, 18 Q. B. 1). 139, affd. 19 Q. B. D 
 68 ; 56 L. J. Q. B. 164.
 
 FIRST RULE IX HADLEY C. BAXENDALE. 23 
 
 within any of tliosc three rules. It was not the necessary con- 
 sequence of the breach of contract, but I have no doubt that it 
 was the probable consequence, and, if so, it follows that it was 
 in the contemplation of the parties within the meaning of the 
 third rule." 
 
 The learned Judge appears here to treat it as a deduction of Contemplation 
 law that a consequence which is either a necessary or a probable "^ 'preach, 
 consequence of a breach of contract must necessarily be con- 
 templated by the parties. If so, it only embarrasses the question 
 to introduce the element of contemplation at all. Lord Justice 
 Cotton took this view when he remarked, as several judges 
 have observed before : " It is said that the rule is that tiie 
 damage to be recoverable shall ba such as would be fairly in the 
 contemplation of the parties at the time the contract was made 
 as the probable result of a breach of it ; but in my opinion the 
 parties never contemplate a breach, and the rule should rather 
 be lliat the damage recoverable is such as is the natural and 
 probable result of the breach of contract." 
 
 The case of Lillic v. Duuhlndaij (c) seems at first sight to go 
 beyond this rule. There the plaintiff had lodged his goods 
 with the defendant to warehouse, on an express contract that 
 they were to be deposited in Kingsland Road. Part of them 
 Avere deposited elsewhere, and were burnt. The plaintiff had 
 insured them as deposited in Kingsland Road, and, of course, 
 lost the benefit of his insurance. It was held that he Avas 
 entitled to recover their full value. Now it certainly was not 
 the necessary, natural, or probable conse(iuence of depositing 
 the goods in one place rather that another that they should be 
 burnt. But, in the first place, it appears that the action was 
 not for damages for breach of contract in warehousing the 
 goods in one place rather than another, but was simply an 
 action for the recovery of the goods. To this the defendant 
 could have no answer, except that they were destroyed by a 
 cause for which he was not responsible, while he was dealing 
 with them according to his contract. But this answer he could 
 not make. If diamonds are deposited with a jeweller for safe 
 custody, he would not be responsible if, after taking every 
 proper precaution his strong-room was emptied by burglars. 
 
 (c) 7 Q. B. D. 510.
 
 2-4 GENEEAL PRINCIPLES OF DAMAGE. 
 
 But he certainly would be answerable, if he allowed his wife-ta 
 wear the diamonds, and she was knocked down and robbed, 
 even though she was watched by an entire division of police. 
 Again, it is a well-known custom that depositors insure their 
 own property against fire, and must necessarily insure it at 
 some particular place. It was therefore a natui'al and probable 
 consequence of a change in the place of deposit, within the 
 knowledge of the owner, thot any insurance which he might 
 effect would become useless, and from this point of view the 
 loss which he incurred from the breach of contract fell strictly 
 within the first rule, in Hadlcij v, BajrendaU. 
 Improbability It may be as well to observe, that where certain damages are 
 of breacli ^\-^q natural and probal)le consequences of a breach of contract, 
 
 no bar to . , . . , . i , i i • i a 
 
 damages. it IS uo objection to then' recovery that the breach itselt was 
 
 wholly unintentional, unforeseen and improbable. A recent 
 case in Ireland was of that nature. The defendant sold to the 
 plaintiff distiller's grains, which are in ordinary use as food for 
 cattle. There had been a fire upon the defendant's premises, 
 in consequence of which particles of lead and other noxious 
 matters had got among the grains. The defendant did not 
 know, and probably could not have known this. The plaintiff's 
 cattle were given the grains, and died in consequence. It was 
 held that the sale of the grains carried with it an implied 
 warranty that they were merchantable as such, and fit for the 
 ordinary uses to which they were put. That being so, it was 
 further held that the plaintiff was entitled to recover the loss 
 of his cattle as damages for the breach of warranty. Palles, 
 C.B. said : /' For anything which amounts to a breach of 
 contract, whether foreseen or unforeseen, the party who breaks 
 the contract is responsible. If those consequences result solely 
 from the act in question, and a usual state of things, they are 
 the ordinary and usual consequences of that act, and the defen- 
 dants are liable " (//). 
 
 Seconrl rule. The second rule, viz., that damages which would not arise in 
 
 the usual course of things from a breach of contract, but Avhich 
 do arise from circumstances peculiar to the special case, are not 
 recoverable, unless the special circumstances are known to the 
 
 {(1) Wilson v. Dunville, G L. E. Ir. 210. See, also, ^jc?' Brett, J. 
 Randall v. Newson, 2 Q. B. D., at p. 105; 46 L. J. Q. B. 259.
 
 SECOND RULE IX HADLEY V. BAXEXDAI.E. 25 
 
 person who has broken the contract ; received its first ilhistra- 
 
 tion from the case of Hadley v. Barendale itself. In fact, that 
 
 alone was the point actually decided in the case. The rule has 
 
 been frequently followed in subsequent decisions. 
 
 The first of them, Fortman v. MiddJeion (e), was a clear case. Special loss 
 
 The plaintiff had nndertaken to repair a steam thrcshiu"-- "°* known to 
 
 . " defendant. 
 
 machine for a third person by harvest time. For this purpose 
 
 he required a new fire-bux. The defendant undertook to make 
 him one in a fortnight ; but the i)laintiiF did not tell him of 
 his own contract to repair the threshing-machine. The defen- 
 dant made deftiult in delivering the fire-box, and the plaintiff 
 in consequence was nnable to perform his contract, and was 
 sued by the owner of the threshing-machine and obliged to 
 pay him compensation. This compensation he sought to 
 recover from the defendant, but failed, because it conld not 
 have been in the contemplation of the defendant when he made 
 his contract with the plaintiff ; and was not the ordinary con- 
 sequence of the breach. 
 
 The next, Shiccd v. Foord (_/'), in which the rule was adopted Winced \. 
 by the Court of Queen's Bench, was more complicated. The 
 defendant contracted to deliver to the plaintill" a threshing- 
 machine. He knew that the plaintiffs practice was to thresh 
 his wheat in the field. The defendant made default, and tlie 
 result was that the plaintiff, who could not get a machine else- 
 where, was obliged to carry the wheat and stack it. While 
 stacked it was injured by rain, and after being threshed it had 
 to be kiln-dried. It was then sold, but fetched less than it 
 w'ould have done but for the delay, the market price of wheat 
 having fallen in the meantime. It* was held that both parties 
 must have foreseen that if the machine were not delivered the 
 wheat must be stacked, and injury from weather would pro- 
 bably result ; and, therefore, that the plaintiff Avas entitled to 
 recover the expenses of stacking the w'heat, the loss arising 
 from its deterioration by rain, and the expense of drying it ; 
 but not the loss arising from the fall in the market price, 
 because the latter was not the natural result of the breach of 
 contract, nor could it have been contemplated when the 
 contract was made, 
 
 (c) 4 C. B, N. S. 322 ; 27 L. .1. C. P. 231. 
 (/) 1 E. & E. 602 ; 28 L. J. Q. B. 178.
 
 26 GENERAL PRINCIPLES OF DAMAGE. 
 
 The concluding part of the above ruHng was put upon a 
 findin^^ of fact, viz., that the parties could not have contem- 
 plated a fall in the market as one of the natural consequences 
 of a l)rcach of contract. Upon this point, however, it is diffi- 
 cult to see the distinction between this case and the other 
 cases quoted below (//). If the defendant had undertaken to 
 thresh the plaintiff's wheat and hand it over to him, and in 
 consequence of his delay the market had fallen, these cases 
 decide that the loss so incurred would have been part of the 
 natural loss arising from the breach of contract. Here the 
 defendant only undertook to supply him with a threshing- 
 machine. But every consequence which legally followed from 
 the breach of contract to thresh, followed as an equally neces- 
 sary consequence from a breach of contract to supply the means 
 of threshing. 
 Gcc V. Lunm- \x\ (fee V. LancaaJiirc and Yorkshire Bail/cai/ Comijanij {!/), 
 shire Ry. Co. ^hc defendants who were carriers, delayed forwarding some 
 cotton to the plaintiff's mill, wiiich in consequence was stopped. 
 There had been no notice at the time of delivery to the de- 
 fendants that any particular inconvenience would be likely to 
 result from delay. The plaintiffs were held not to be entitled 
 to recover for loss of profits from the mill standing idle, nor 
 tlie amount paid for wages during the time. The loss w-as 
 in fact sustained, not in consequence of the non-arrival of the 
 cotton alone, but in consequence of that fact and of the plain- 
 tiffs having no other cotton in stock ; the latter being a fact 
 Rule suggested ^yijich the defendants were not bound to expect. A suggestion 
 well B. was thrown out by Bramwell, B., that to the rule laid down in 
 
 Hadleij v. Baxendale a Cjualification might perhaps be added, 
 that in the course of the performance of a contract one party 
 might give notice to the other of any particular consequence 
 which would result from the breaking of the contract, and then 
 have a right to say : " If you, after that notice, persist in 
 breaking the contract, I shall claim the damages which will 
 result from the breach." 
 :Me,aiiing of j,^ Great Western liai/iva// Company v. Bedmaiine (i), an 
 
 market value. .y j /^ 
 
 (.7) Collard V. S. E. Ihj, Co.: Boirks v. Jltdrhinson : Ward v. New 
 York Central Rij., ante, pp. 15, 16. 
 
 (//) 6 H. & N. 211 ; KO L. J. Ex. 11. 
 
 (/) L. R. 1 C. P. 329. See, too, Rodocanachi v. Milhurn, IS Q. B. D. 67 ; 
 re L. J. Q. B. 202.
 
 SECOND EUI.E IX IIADLEY C. BAXENDALE. 27 
 
 unsuccessful attempt was made to recover damages on the 
 authority of the cases which have just been mentioned. The 
 l)laintili' sent goods by the defendants' railway to his traveller 
 iit Cardiff, but through the defendants' negligence they did 
 not arrive till after the traveller had left. The plaintiff sought 
 to recover the profits which he would have derived from a sale 
 of the goods at Cardiff, on the principle that the market value 
 to him, for the purposes of sale, was diminished after the de- 
 ]>arture of the traveller by the amount of the profit that would 
 have been gained by a sale there ; but it was held, that the 
 market value of the goods was their value in the market inde- 
 peridently of any circumstances peculiar to the plaintiff', and 
 tliat the profits which would have been made by the sale at 
 Cardiff, through the traveller being })resent, could not be 
 recovered. 
 
 In the recent case of Cor// v. Thames Loun'orks Companij (k), DirtVicnt re- 
 a difficulty arose in applying the rule in Hadleij v. Baxendale, j^.^^^j ^^ "" 
 because the parties had not in contemplation the same use for each party, 
 the article to be supplied, which was of a novel character. The 
 defendants had built a large floating boom derrick, fitted with 
 machinery for r.iising sunken vessels, for a company which had 
 become insolvent, and had left it on their hands. The plaintiffs 
 agreed to buy the hull of the derrick, which the defendants 
 were to empty of machinery, and deliver at a time fixed. The 
 plaintiffs, who were coal merchants, intended to place in the 
 hull hydraulic cranes for the purpose of trans-shipping their 
 coals direct from colliers into barges. This purpose was en- 
 tirely novel and unknown to the defendants. They believed 
 that the plaintiffs intended to use the hull for a coal store, 
 which Avas the most obvious use to which such a vessel was 
 capable of being applied by persons in the coal trade ; but the 
 derrick being an entirely novel and exceptional vessel, and the 
 first of the kind built, no vessel of the sort had ever been 
 applied to such a purpose. She was capable, however, of being 
 profitably employed for that purpose, and had she been so em- 
 ployed, her non-delivery at the time fixed would have caused 
 loss and damage to the plaintiffs to the amount of 420/. As it 
 was, the plaintiffs experienced a much greater loss, for they had 
 
 {k) L. 11. 3 Q. B. 181 ; 37 L. J. Q. B. 68.
 
 28 
 
 GENERAL PRIXCIPLES OF DAMAGE, 
 
 Cory V. 
 Thames Irim- 
 ivor/cs Co. 
 
 Damages not 
 contemplated 
 hy the de- 
 
 feiulant. 
 
 Expenses ill- 
 
 purchased machinery and steam tugs to be used in conjunction 
 with the hulk, and these lay idle for a considerable time. The 
 plaintiffs, therefore, lost the interest upon the moneys expended, 
 and, also, the profits which they would have made by the use 
 of the derrick. The chief contention was as to whether the 
 defendants were liable to pay the 420/. It was apparent that 
 the plaintiffs could not recover the larger damages, the special 
 ])urpose to which they had intended applying the derrick not 
 having been made known to the defendants ; but it was further 
 urged for the defendants, that to give the plaintiffs the 420/. 
 Avould be to give them damages for what they had not suf- 
 fered, nor even contemplated suffering, namely, being deprived 
 of the use of the derrick as a coal store. The result, however, 
 of this reasoning would have been, that when the buyer in- 
 tended to apply a thing to a purpose which would make the 
 damages greater, and did not intend to apply it to the purpose 
 to which the seller supposed he intended to apply it, the seller 
 would be set free altogether. The Court held that the sellers, 
 having contemplated that the derrick was to be employed in 
 what was in fact the most obvious mode of earning money, and 
 the plaintiffs having lost more money than they would have 
 lost if they had so employed it, they Avere entitled to be com- 
 pensated to that extent, the loss having been the natural conse- 
 (juence of the non-delivery of the derrick. 
 
 In Hales v. London and North Wesiern Raihi-ay Company (/) 
 the plaintiff had made a contract to supply a person at Seaham 
 with equipments and ornaments for a Foresters' festival, to 
 be held on a particular day. He delivered them for carriage 
 to the defendants, addressed to Seaham, but no information 
 was given as to the purpose for which they were sent, or the 
 day on which it was desired that they should arrive. The 
 ticket stated that they were to be forwarded by luggage train. 
 If they had been sent on with due diligence they would have 
 \ arrived in time. They were delayed unreasonably, and arrived 
 • late, in consequence of which the plaintiff incurred 5/. expenses 
 in searching and inquiring for his goods, and lost 20/. which 
 he would have received for their hire. It was held that he was 
 entitled to recover the former sum, but not the latter. 
 
 In such a case, however, as the above, the expenses incurred 
 
 (/) 4 B. & S. 66 ; 32 L. J. Q. B. 292.
 
 SECOND RULE IX HADI.EY V. BAXEXDALE. 29 
 
 in searching: for missinor oroods, must be tlie reasonable expenses curredhy 
 
 .1 , ,? ..-,■■, r .T L 1 delay of goods. 
 
 that would naturally be incurred for that purpose, such as 
 cab-hire, messengers, and the like. The hotel expenses of the 
 owner, while he remained in the town to which a parcel was 
 addressed, looking for it, have been held to be irrecoverable. 
 They were nob the ordinary results of a parcel being mislaid, 
 but the special results arising from the fact that the owner 
 was on a journey to some other place (m). 
 
 Home V. Midland Railway Companij (n) is an illastration of Loss of special 
 the limit to be put upon the rule, as stated above, that a fall j-ecoverable. 
 in market value is recoverable as damage for breach of contract. 
 There the plaintiffs were under a contract to deliver in London 
 on the 3rd Fel)., 1871, shoes for the use of the French army 
 during the late war. The price was an unusually high one. 
 They handed them over to the defendants for carriage, stating 
 that they were under a contract to deliver by the ord, but not 
 stating the special nature of the contract. The shoes were 
 delayed, in consequence of which the purchasers refused to take 
 delivery, and the contract was lost. The plaintiffs had to sell 
 them at the ordinary market price. This price had not varied 
 between the day at which they were due, and the day at which 
 they were received, but it was below the special contract price, 
 of which the defendants were ignorant. It was held that the 
 defendants were not liable for the difference between the 
 ordinary market value of the shoes, and the particular contract 
 price, they not having been infonned of the special circum- 
 stances which led to the special loss. Whether they would 
 have been so liable, even if such a communication had been 
 made to them, was a further question, as to which this case will 
 be referred to again. 
 
 In one case (o) the plaintiffs had entrusted the defendant ^'on-delivery 
 with a message in cypher, to be transmitted by telegraph to °^ telegram. 
 America. The message was never delivered, and the plaintiffs 
 admittedly lost considerable profits which they would have 
 made by the transaction to which the message related. It was 
 held, however, that no more than nominal damages could be 
 
 (m) Woodi/ery. G. W. Ry. Co., L. R. 2 C. P. 318 ; 36 L. J. G. P. 177. 
 {„.) L. R. 7 C. P. 5S3, affirmed, L. II. 8 C. P. 131 ; 41 L. J. C. P. 264, 
 affirmed, 42 L. J. C. P. 59. 
 
 (o) Sanders v. Stuart, 1 C. P. D. 326 ; 45 L. J. C. P. 682.
 
 30 
 
 GENERAL PiaXCIPLES OF DAMAGE. 
 
 "NVlietlicv any 
 liability ari»es 
 from mere 
 communication 
 of special cii- 
 c-imstances. 
 
 Cases of com- 
 mon carrier. 
 
 recovered. The message was unintelligible, and was intended 
 to be unintelligible, to the defendant. It not only gave him 
 no clue as to the special loss that might result from his negli- 
 gence, but it gave him no reason to suppose that any loss at all 
 would follow. For all he knew, it might have contained 
 information that the sender was just married; or that his wife 
 had had a baby. Consequently, damages could not be obtained 
 nnder either the first or second portion of the rule in Haclley v. 
 BaxendaJp. 
 
 The third rule supposed to l)e laid doAvn by Baron Alderson, 
 viz., that where the special circumstances are known, or have 
 been communicated to the person who ultimately breaks the 
 contract, and where the damage complained of flows naturally 
 from the Ijreach of contract under those special circumstances, 
 then such special damage must be supposed to have been con- 
 templated by the parties to the contract, and is recoverable r 
 — must be taken as being much more doubtful unless under 
 very special Imiitations. It maybe asked with great deference^ 
 whether the mere fact of such consequences being communi- 
 cated to the other party will be sufficient, without going on to- 
 show that he was told that he Avould be held answerable for 
 them, and consented to undertake such a liability ? In all 
 probability, if the carrier, iu the case of IlacUey v. Baxendale, 
 had been told that any delay iu delivering the shaft would 
 make him liable to pay the whole profits of the mill, he would 
 have required an additional rate of recompense before facing 
 such a responsibility. The question comes to this. The law 
 says that every one who breaks a contract shall pay for its 
 natural consequences, and in most cases states Avhat those con- 
 sequences are. C\in the other party by merely acquainting 
 him with a number of further consequences, which the law 
 would not have implied, enlarge his responsibiHty to the full 
 extent of all those consequences, without any contract to that 
 effect ? No doubt it may be said that it was iu the ])ower of 
 the defendant to have expressly refused ^snch responsibility. 
 True. But ought not the onus of making a contract rather to 
 lie on the party who seeks to extend the liability of another, 
 than upon him who merely seeks to restrain his own within its 
 original limits ? 
 
 This reasoning would seem to apply with special force to
 
 THIRD RULE IN HADLEY V. BAXENDALE. 31 
 
 cases such as that of u common carrier, where the defendant 
 would certainly be unable to decline the duty which was thrust 
 upon him, and might even be unable to exact any additional 
 remuneration for performing it. 
 
 The case of British Columbia Sdwrnill Companfj v. Nettle- 
 ship (p), is important as bearing upon the point now suggested, 
 that a mere communication of the consequences of a breach of 
 the contract is not sulhcient to enlarge the responsibility of 
 the party to whom it is made. The plaintiffs delivered to the 
 defendant for carriage to Vancouver's Island several cases of 
 machinery intended for the erection of a saw mill. The 
 defendant knew generally that the cases contained machinery. 
 On the arrival of the vessel at her destination, one of the cases 
 which contained parts of the machinery, without which the 
 mill could not be erected, was missing. The phiintifFs were 
 obliged to replace those parts from England at a cost, including 
 freight, of 353/. lis. '.)d., and with a delay of twelve months. 
 A fair rate of hire of the machinery ap])lied to the purposes for 
 which it was required l)y the plaintiifs, would have been for 
 twelve months 2G4-(;/. '2s. 3^/., which amount the plaintiffs sought 
 to recover. Their claim, however, to this sum was disposed of 
 by the second branch of the rule in Hadleij v. Jkixendale, the 
 defendant not having known that the case contained portions 
 of the machinery which could not be replaced at Vancouver's 
 Island, and without which the rest could not be put together. 
 But Willes, J., discussed the effect of knowledge in the follow- -vviHes j. 
 ing terms : — " I am disposed to take the narrow view, that one "po'i the en- 
 of two contracting parties ought not to be allowed to obtain responsibility 
 an advantage which he has not paid foi-. The conclusion at l>y special 
 which we are invited to arrive would fix upon the ship- 
 owner, beyond the value of the thing lost and the freight, the 
 further liability to account to the intended mill-owners, in the 
 event of a portion of the machinery not arriving at all, or 
 arriving too late, through accident or his default, for the full 
 profits they might have made by the use of the mill if the trade 
 were successful and without a rival. If that had been pre- 
 sented to the mind of the ship-owner at the time of making 
 the contract, as the basis upon which he was contracting, he 
 would at once have rejected it. And, though he knew from 
 
 [p) L. 11. 3 C. P. 499 ; 37 L. J. C. P. 235. 
 
 knowledge.
 
 32 
 
 GENERAL PPJXCIPI.ES OF DAMAGE. 
 
 sk/jy. 
 
 A special 
 contract is 
 reriuired. 
 
 British Colum- the shippers the use they intended to make of the articles, it 
 Co. Y^^Ncttle- could not be contended tliat the mere fact of knowledge 
 without more, would be a reason, for imposing upon him a 
 greater degree of liability than would otherwise have been cast 
 upon him. To my mind, that leads to the inevitable conclu- 
 sion that the mere fact of knowledge cannot increase the 
 liability. The knowledge must be brought home to the party 
 sought to be charged, under such circumstances that he must 
 know that the person he contracts with reasonably believes 
 that he accepts the contract with the special condition attached 
 to it. Several circumstances occur to one's mind in this case 
 to show tliat there was no such knowledge on the defendant's 
 part which would warrant the conclusion contended for by the 
 plaintiffs. In the first place, the carrier did not know that the 
 whole of the machine would be useless if any portion of it 
 failed to arrive, or what that particular part was. And that 
 suggests another consideration. He did not know that the 
 part which was lost could not be replaced without sending to 
 England. And, applying what I have before suggested, if he 
 did know this, he did not know it under such circumstances as 
 could reasonably lead to the conclusion that it was contem- 
 plated at the time of the contract that he should be liable 
 for all those consequences in the event of a breach. Know- 
 ledge on the part of the carriej' is only important if it forms 
 part of the contract. It may be that the knowledge is 
 acquired casually from a stranger, the person to w'hom the 
 goods belong not knowing or caring whether he had such 
 knowledge or not. Knowledge, in effect, can oidy be evidence 
 of fraud, or of an understanding by both parties that the con- 
 tract is based upon the circumstances which are communi- 
 cated." 
 
 The Court considered the plaintiffs entitled to recover the 
 sum necessarily expended in replacing the lost box of machinery, 
 and the freight, and interest upon the amount for the time the 
 plaintiffs were delayed, the interest being apparently given by 
 way of compensation for the delay, upon the analogy of the 
 practice of allowing interest in the case of non-payment of 
 money. 
 
 In Home v. Midland Ralhvay Company (q), the facts of 
 
 Same view 
 txpressed in 
 
 iq) L. II. 7 C. P. 583, 591 ; 41 L. J. C. P. 264.
 
 THIRD RULE IN HADLEY V. BAXENDALE. 33 
 
 -which have been already stated (r), Willes, J., after pointing ITornev. Mid- 
 out that the defendant had no notice of the special circum- 
 stances out of which the special damage had arisen, proceeded 
 to say : " I go further, I adhere to what I said in British 
 Columbia Saw Mill Company v. Nettleship, viz., that the 
 knowledge must be brought home to the party sought to be 
 charged, under such circumstances that he must know that the 
 person he contracts with reasonably beheves he accepts the 
 contract with the special condition attached to it." And 
 Keating, J., said, " I think, giving the fullest effect to Hadleij 
 V. Baxendale, and the rule there laid down, but which ought 
 not to be extended, we cannot hold the defendants liable in 
 respect of a loss resulting from an exceptional state of things 
 which was not communicated to them at the time. There 
 must, if it be sought to charge the carrier with consequences so 
 onerous, be distinct evidence that he had notice of the facts, 
 mid assented to accept the contract on those terinsJ" 
 
 The same views were expressed even more strongly by some Kelly, C.u. 
 of the judges in the same case when it was affirmed on appeal. 
 Kelly, C.B., said (s), " The goods with which we have to deal 
 are not the subject of any express statutory enactment ; the 
 case with regard to them depends on the common law, taken 
 in connection with the Acts relating to the defendants' railway 
 company. Now it is clear, in the first place, that a railway 
 company is bound, in general, to accept goods such as these, 
 and carry them as directed to the place of delivery, and there 
 deliver them. But now suppose that an intimation is made to 
 the railway company, not merely that if the goods are not 
 delivered by a certain date they will be thrown on the con- Liability ol 
 signer's hands, but in express terms stating that they have 
 entered into such and such a contract, and will lose so many 
 pounds if they cannot fulfil it ; what is then the position of the 
 company ? Are they the less bound to receive the goods ? I 
 apprehend not. If then they are bound to receive, and do so 
 without more, what is the effect of the notice ? Can it be to 
 impose upon them a liability to damages of any amount, how- 
 ever large, in respect of goods which they have no option but 
 
 common 
 carrier. 
 
 (r) Ante, p. 29. 
 
 (s) L. R. 8 C. P. 136 ; 42 L. J. G. P. 59. 
 
 M.D.
 
 34 
 
 GENERAL PRINCIPLES OF DAMAGE. 
 
 Home V. Mid 
 lund Ri/. Co. 
 
 Lush, J. 
 
 Same question 
 in Elbingcr 
 Actien-Gcacll 
 xrhaft T, A rn 
 strong. 
 
 to receive ? I cannot find any authority for the proposition 
 that the notice without more could have any such effect. Ifc 
 does not appear to me that the railway company has any power, 
 such as was suggested, to decline to receive the goods after 
 such a notice, unless an extraordinary rate of carriage be paid. 
 Of course they may enter into a contract, if they will, to pay 
 any amount of damages for non-performance of their contract,. 
 in consideration of an increased rate of carriage, if the con- 
 signors be willing to pay it ; but in the absence of any such 
 contract expressly entered into, there being no power on the 
 part of the company to refuse to accept the goods, or to compel 
 payment of an extraordinary rate of carriage by the consignor, 
 it does not appear to me that any contract to be liable to more 
 than the ordinary amount of damages can be implied from 
 mere receipt of the goods after such a notice as before 
 mentioned." 
 
 Observations to the same effect were made by Martin, B., 
 and Blackburn, J. Lush, J., said that he agreed " with the 
 suggestion that the notice in such cases can have no effect 
 except so far as it leads to the inference that a term has been 
 imported into the contract making the defendant liable for the 
 extraordinary damages," He differed, however, from the Chief 
 Baron, in holding that the railway company might have de- 
 manded extraordinary remuneration for extraordinary risk. 
 Upon the question of fact he thought that the company had 
 received such notice as threw upon them the responsibility of 
 making further inquiries, and that not having done so, they 
 must be taken to have accepted the goods to be carried on the 
 terms that they were to be liable for the consequent loss if they 
 were not delivered (t). 
 
 The same question was again discussed in Elbinger Aclien- 
 Gesellscliaft v. Armsfrong («) ; where the defendant agreed to 
 - supply the plaintiff' with 6G6 sets of wheels and axles, to be 
 delivered at fixed intervals in February, March, and April, free 
 on board at Hull. The plaintiffs were under a contract to 
 deliver to a Russian railway company 1,000 waggons, half on 
 1st May, 1872, and the rest on 31st May, 1873, and they were 
 
 {t) L. R. 8 C. P. 139—141, 145. 
 
 (m) L. R. 9 Q. B. 473 ; 43 L. J. Q. B. 211, followed Grebert Borgnis v, 
 Nugent, 15 Q. B. D. 85 ; 54 L. J. Q. B. 511, post, p. 39.
 
 THIRD RULE IN IIADLEY V. BAXENDALE. . 65 
 
 bound to pay two roubles per waggon for each day's delay in 
 delivery. In the course of the negotiations between the 
 plaintiff and defendant, the defendant was informed of this 
 contract, but neither the precise day for the delivery nor the 
 amount of the penalties was mentioned. The wheels were 
 delayed, in consequence of which the plaintiffs became liable to 
 the penalties, but the Russian company agreed to take one 
 rouble i^er day, amounting in all to 100/. It was contended, 
 on the one hand, that the defendant was only liable to nominal 
 damages. On the other hand, that he was liable, as a matter 
 of law, to the exact amount of penalties which the plaintiffs 
 had been compelled to pay for breach of their contract with the 
 Russian company. The first view was at once negatived by 
 the Court. They said, " It is obvious that both parties con- 
 templated that the wheels and axles were to be put into im- 
 mediate use. Under such circumstances, the natural and 
 almost inevitable consequence of a delay in delivering a set of 
 wheels would be that the plaintiffs, if they meant the waggon 
 for their own use, or that their customers, if the waggon was 
 bespoke, would be deprived of the use of a waggon for a period 
 equal to that for which the set of wheels was delayed. At all 
 events the plaintiffs were entitled to recover at a rate equal to 
 whatever the jury should find to be reasonable compensation 
 for the loss of the use of the waggon : see Cori/ v. Thames Iron- 
 irorlcs Company {x), "We think, therefore, it would have been 
 a misdirection if the jury had been directed to find no more 
 than nominal damages. 
 
 " We have had more difficulty in determining whether the Elbinger 
 plaintiffs are entitled to keep the verdict for the amount as it Jll^fl\ ^Arin- 
 stands (100?. 13.s.). If we thought that this amount could strong. 
 only be come at by laying down as a proposition of law that 
 the plaintiffs were entitled to recover the penalties actually 
 paid to the Russian company, we should pause before we 
 allowed the verdict to stand." The Court then referred to the 
 judgment in Hadlcij v. Baxendale, saying, " So far as the case 
 decides that the defendant is not liable for any unusual con- 
 sequences, arising from circumstances of which he has not 
 notice, the case has often been acted upon. But an inference 
 
 [x) L. R. 3 Q. B. 181 ; 37 L. J. Q. B. 63. 
 
 D 2
 
 36 GENERAL PRINCIPLES OF DAMAGE. 
 
 has been drawn from the language of the judgment, that when- 
 ever there has been notice at the time of the contract that some 
 unusual consequence is likely to ensue if the contract is broken, 
 the damages must include that consequence, but this is not, as 
 yet at least, established law." Their Lordships then quoted 
 the passage which will be found in the text (y), ending with 
 the sentences, " The law says that everyone who breaks a con- 
 tract, shall pay for its natural consequences ; and in most cases 
 states what these consequences are. Can the other party, by 
 merely acquainting him with a number of further consequences, 
 which the law would not have implied, enlarge his responsi- 
 bility to the full extent of all those consequences, without any 
 contract to that effect ? " Upon this they said, " We are not 
 aware of any case in which HadJey v. Baxendale has been acted 
 upon in such a way as to alford an answer to the learned 
 author's doubts ; and in Home v. Midland Railway Company (z), 
 much that fell from the Judges in the Exchequer Chamber 
 tends to confirm those doubts." 
 
 It was unnecessary to decide the point, however, as the 
 Court held that the jury might fairly have given general 
 damages to the amount of 100/. 13s. without any reference to 
 the penalties actually incurred. 
 Simpson V. The first case subsequent to the above decisions in which 
 
 L. & N. Jf' . |.^g gg^j^g point seemed to arise, was the case of Simpson v. 
 London and North Western Railway Compiany {a). There the 
 plaintiff was a manufacturer of cattle food, who was in the 
 habit of sending samples of his goods to cattle shows, with a 
 show-tent and banners, and attending there himself to attract 
 custom. He intended to exhibit some of these samples at the 
 Newcastle show, and delivered them for transmission to the 
 defendants. The contract was made with the defendants' 
 agent at a cattle show at Bedford, where the plaintiff had been 
 exhibiting his samples, and where the defendants had an agent 
 and office on the show-ground, for the purpose of seeking 
 traffic. The evidence as to the terms of the contract was, that 
 a consignment note was filled up by the plaintiflTs son, con- 
 signing the goods as " boxes of sundries " to " Simpson & Co., 
 
 (2/) Ante, p. 30. 
 
 (c) L. R. 8 C. P. 131 ; 42 L. J. C. P. 59. 
 
 («) 1 Q. B. D. 274 ; 45 L. J. Q. B. 182.
 
 THIRD RULE IN HADLEY V. BAXENDALE. 37 
 
 the show-ground, Newcastle-on-Tyne," and that he endorsed 
 the note " must be at Newcastle on Monday, certain," meaning 
 the next Monday, the 20th July. Nothing was expressly said 
 as to the plaintiff's intention to exhibit the goods at Newcastle, 
 nor as to the goods being samples. They did not arrive till 
 several days after time, and when the show was over. It was 
 proved that the plaintiff obtained custom by exhibiting his 
 samples at shows, but no evidence was given as to his prospects 
 with regard to the Newcastle show in particular. A verdict 
 by consent was entered for 20Z., beyond a sum which had been 
 paid in, with leave to move to enter the verdict for the defen- 
 dants, if the Court should be of opinion that the plaintifP was 
 not entitled to recover for either loss of time in waiting 
 for the goods, or loss of profits. It was held the plaintiff was 
 entitled to his verdict. Cockburn, C.J., said : — " The law, as is Cockbum, c.J. 
 to be found in the reported cases, has fluctuated ; but the 
 principle is now settled that, whenever either the object of the 
 ^sender is spec ially l)rou<:ht to the notice of the caiTier, or 
 ^circ umst ances are known to the carr ier f rom \\\\\c]\ the object 
 ouglit in reason to be inferred, so that the </i )](■<■; may be 
 "taken to have been within the contemplation of \n<l\\ parties, 
 "tlamages may be recovered for the nauiral consfqucrices of the 
 failure of that object. Tlio I'laiiitiff in the present ease is in 
 the habit of going about the country exhibiting his cattle ^^ j^ JuXv. 
 spice at shows, to attract purchasers. The defendants had an 
 agent on the ground at the Bedford Agricultural Show, where 
 this contract was made, for the purpose of drawing custom to 
 their line ; and their agent must have known that the plaintiff 
 had been exhibiting these goods, and that they were being sent 
 "To^Newcastle for the same purpose. I therefore cannot doubt 
 that there was in this case common knowledge of the object 
 in view. As to the supposed impossibility of ascertaining the 
 damages, I think there is no such impossibility ; as to some 
 extent, no doubt, they must be matters of speculation, but 
 that is no reason for not awarding any damages at alL" 
 
 It seems to me, however, that there is nothing whatever, 
 in either the decision or the judgment, which raised the point 
 now under discussion. Indeed, notwithstanding some expres- 
 sions in the judgment, it appears that the case really came under 
 the first rule in Hadley v. Baxendale, and not under the third. 
 
 j^/^
 
 38 GENERAL PKINCIPLES OF DAMAGE. 
 
 Goods are consigned with a contract that they are to be 
 delivered at a particular place, on a particular day. The con- 
 tract is broken. What are the damages ? They are the damages 
 naturally arising from the non-arrival of the particular sort of 
 goods. The evidence as to knowledge simply went to show 
 that the defendants knew what ^rt of goods they were. A 
 carrier will be liable tO' diffei-enT^amages according as he c\elays 
 a basket of fish or a basket of coals, for the simple reason that 
 delay frustrates the object of sending the fish, but not that of 
 sending the coals. Here the plaintiff claimed no special dam- 
 ages, but merely general damages for the fliilure of his object 
 in sending the goods. The question would really have arisen if 
 he had shown that a customer was waiting at Newcastle, who 
 would have made a heavy contract with him, which he lost by 
 the non-arrival of his samples, and that he had thereby lost 
 1,000/., which he sought to recover. Any such claim would, as 
 I humbly conceive, have failed, whatever knowledge the defen- 
 dants had of tlie object for which the samples were being 
 sent(&). 
 
 A later case, which seems of exactly the same character, is 
 i\iQ,i oi Hydraulic Engineering Go. v. McHaffieic). There the 
 plaintiff" was negotiating with Justice for the supply of a par- 
 ticular machine. Part of it, called " the gim," required to be 
 made by a special artist. Justice introduced the plaintiff to 
 the defendant as a person capable of making it, and the latter 
 undertook the task. The defendant was informed that Justice 
 wanted the entire machine, of which the gun was a necessary 
 part, by the end of August, and, according to his own account, 
 he agreed to make it as soon as possible. Under circumstances 
 which were held to amount to a breach of contract, he failed 
 to deliver the gun till the end of September, and Justice refused 
 to take the machine when finished. The plaintiff was held 
 entitled not only to all the costs incurred in making the 
 machine, which was now useless, but also to the loss of the 
 profit which he would have derived from his contract with 
 Justice. Here it is obvious that this profit was the whole aim 
 
 (6) Merely labelling a box "Traveller's goods, deliver immediately," was 
 held insufficient to make particular damages recoverable. Candy v. Midland 
 My. Co. , 38 L. T. K. S. 226. 
 
 (c) 4 Q. B. D. 670.
 
 THIRD RULE IN HADLEY V. BAXENDALE. 
 
 and object of the contract with the defendant, and that the loss 
 of it was not only the natural, but almost the necessary result 
 of his breach of contract. It may not be correct to say that 
 the defendant contemplated a loss of profits by the plaintiff, if 
 he could not deliver the machine in proper time to Justice. 
 What he did contemplate was, that the contract was made with 
 himself in order to enable the plaintiff to earn certain profits 
 from Justice. He was, therefore, properly liable to make good 
 to the plaintiff those profits wliich, by his own breach of con- 
 tract, he had put it out of the other's power to earn. 
 
 The decision in Elhinger Actien-GeseUschafiv. Armstrong (d), 
 was affirmed and followed in the more recent case of Grehert 
 Borgnis v. Nugent (e). There the plaintiff had contracted 
 with the defendants for 243 sheepskins of specified sizes and 
 prices, to be supplied to him at certain definite periods. The 
 defendants were informed that the plaintiff's object in purchasing 
 the goods was to resell them to a firm in Paris. As soon as 
 the plaintiff had effected his contract with the defendants, he 
 proceeded to make his bargain with the French firm, and 
 thereby agreed to supply them with precisely the same number 
 and quality of skins, at periods corresponding to those at which 
 he expected to receive them from the defendants, and at a 
 profit of five francs per skin. The defendants delivered forty- 
 two skins only, and broke their contract as to the remainder. 
 There was no market for the skins, which could only be pro- 
 cured by orders delivered some time in advance. The French 
 firm sued the plaintiff' in Paris and recovered judgment against 
 him for 28?. He then sued the defendants for 34/., the loss of 
 profit which he would have obtained if he had been able to 
 carry out the sub-contract, and for 28/., the amount of judg- 
 ment. The plaintiff's right to the 34/. was not disputed. As 
 to it, Brett, M.R., said (p. 89) : "there was no market for 
 these goods. If there had been a market for them, what the 
 plaintiff" would have been bound to do would have been to go 
 into the market and l3uy the goods, and so supply his French 
 customer ; and if the market price was above the contract 
 price, he would get the difference from the defendants. There 
 
 39 
 
 (cZ) L. R. 9 Q. B. 473 ; 43 L. J. Q. B. 211 ; ante, p. 34. 
 (e) 15 Q. B. D. 85 ; 54 L. J. Q. B. 511 ; Hamilton v. Marjill, 12 Ir. L. 
 fiep. C. L. 186.
 
 40 GENERAL PRINCirLES OF DAMAGE. 
 
 ■was no market, therefore the first head of damage is perfectly 
 clear ; he lost the profit of five fraucs per skiu which he would 
 otherwise have made." 
 
 As regards the 28/., it was held that the plaintifi" was entitled 
 to recover from the defendants some damages for the result 
 which they must have contemplated, that their breach of con- 
 tract with him would expose him to proceedings from the 
 Paris firm ; and that the amount awarded against him in Paris 
 might reasonably, though not as a matter of necessary law, 
 be taken as a mode of fixing the amount of such damages. 
 Brett, M.R., laid down the law as resulting from the decisions 
 upon HadJcy v. BaxcndaU as establishing this proposition. 
 " Where a plaintiff, under such circumstances as the present, is 
 seeking to recover for some liability which he has incurred, 
 under a contract made by him with a third person, he must 
 shew that the defendant, at the time he made his contract with 
 the plaintiff, knew of that contract, and contracted on the 
 terms of being liable if he forced the plaintiff to a breach of 
 that contract." Where he was specifically informed of the 
 contract, it would be a fair inference of fact that he contracted 
 with the plaintiff upon the terms, that if he broke his contract 
 he would be liable for all the consequences of a failure by the 
 plaintiff to perform his sub-contract. Those consequences, 
 however, would be the ordinary and natural consequences in 
 which the plaintiff would be involved by reason of the failure, 
 and not the consequences arising from special and unusual con- 
 ditions contained in the sub-contract, of which the defendant 
 had no notice. In the case under discussion the defendants 
 must have known, that if they made default in their supply, the 
 plaintiff could not buy in the market so as to satisfy his con- 
 tract ; therefore that he would be sued by his sub-contractor, 
 who would recover some damages against him, and that the 
 damages recovered, so far as they were reasonable and proper 
 damages, ought to be repaid to the plaintiff. The result was 
 that the plaintiff was put in exactly the same position as if the 
 defendants had enabled him to carry out his contract : 34/. 
 represented the profits which he would have made by its 
 performance ; 28/. relieved him from the damages for its 
 breach. 
 Rules siig- In the present state of the authorities, therefore, I would
 
 THIRD RULE IN HADLEY V. BAXENDALE. 41 
 
 suggest, that in place of the third rule supposed to be laid down gested in place 
 by Hadley v. BaxoidaJe, the law may perhaps be as follows : — 
 
 "First. — Where there are special circumstances connected 
 with a contract, which may cause special damage to follow if 
 it is broken, mere notice of such special circumstance given 
 to one party will not render him liable for the special damage, 
 unless it can be inferred from the whole transaction that he 
 consented to become liable for such special damage. 
 
 " Secondly. — Where a person w^ho has knowledge or notice 
 of such special circumstances might refuse to enter into the 
 contract at all, or might demand a higher remuneration for 
 entering into it, the fact that he accepts the contract without 
 requiring any higher rate will be evidence, though not con- 
 clusive evidence, from which it may be inferred that he has 
 accepted the additional risk in case of breach. 
 
 " Thirdly. — Where the defendant has no option of refusing 
 the contract, and is not at liberty to require a higher rate of 
 remuneration, the fact that he proceeded in the contract after 
 knowledge or notice of such special circumstances is not a fact 
 from w^hich an undertaking to incur a liability for special 
 damages can be inferred. 
 
 " Fourthly. — Even if there were an express contract by the 
 defendant to pay for special damages, under the circumstances 
 last supposed, it might be questioned whether such a contract 
 would not be void for want of consideration. Take the case 
 of a railway passenger who buys his ticket, informing the 
 clerk of some particular loss that would arise upon his being 
 late. Suppose the clerk were to undertake that the company 
 should be answerable for the loss, and that such an undertaking 
 should be held to be within the sphere of his duty. Would 
 it not be purely gratuitous ? The consideration for any 
 promise by the company, arising from the payment of the fare, 
 would be exhausted by their carrying the passenger to his desti- 
 nation, or paying the ordinary damages for failure to do so. 
 What w^ould there be left to support the special undertaking 
 to pay an exceptional penalty ? (/) Of course it would be 
 different if a special payment were made by way of premium 
 for incurring the increased risk." 
 
 (/) See Cases, 1 Sm. L. C. 165, 9th ed.
 
 42 
 
 GENERAL PRINCIPLES OF DAMAGE. 
 
 Principle 
 suggested in 
 Fletcher V. 
 Tayleiir. 
 
 Cases in which 
 ■fhe principle 
 would apjily. 
 
 Would exclude 
 
 exceptional 
 
 profits. 
 
 In the case of Fletcher v. TaijJeiir, what was supposed to be 
 a new principle as to the assessment of damages was thrown 
 out by Jervis, C.J., and Willes, J. The latter said, " It cer- 
 tainly is very desirable that these matters should be based 
 upon certain and intelligent principles, and that the measure 
 of damages for the breach of a contract for the delivery of a 
 chattel should be governed by a similar rule to that which 
 prevails in the case of a breach of contract for the payment 
 of money. No matter what the amount of inconvenience 
 sustained by the plaintiff, in the case of non-payment of money, 
 the measure of damages is the interest of the money only ; 
 it might be a convenient rule if, as suggested by my lord, 
 the measure of damages in such a case as this was held, by 
 aualogy, to be the average profit made by the use of such a 
 chattel " {(j). 
 
 Such a rule, however, would only apply to the case of 
 articles whose profit consisted in their use, and would be 
 totally inapplicable to the great majority of cases. Where it 
 did apply, it would simply be a particular apphcation of the 
 rule in Haclley v. Baxendale, as to the natural result of the 
 breach of contract. It was upon this very principle that 
 damages were assessed in Cory v. Thames Ironworlzs Com- 
 pany ill). So in the case of the Cambrian Steampadcet Com- 
 pany, where delivery of a vessel had been delayed, the Vice- 
 Chancellor, following the last-named case, awarded as damages 
 the net profit which the company might have obtained by 
 chartering the vessel if she had been delivered at the time 
 contracted for {%). And on appeal the Lord Chancellor said, 
 " That as to the measure of dainages he had proceeded on the 
 principle that if a profit would arise from a chattel, and it is 
 left with a tradesman for repair, and detained by him beyond 
 the stipulated time, the measure of damages is prima facie the 
 sum which would have been earned in the ordinary course of 
 employment of the chattel in the time" ili). 
 
 The rule as to profits, as limited by Willes, J., and the 
 
 (g) 17 C. B. 29 ; 25 L. J. C. P. 66 ; ante., p. 13. 
 (A) L. R. 3 Q. B. 181 ; 37 L. J. Q. B. 68 ; ante, p. 27. 
 (i) Ex ■parte Camhrian Steam Packet Co., L. R. 6 Eq. 396, 408 ; 37 L. J, 
 Ch., at p. 690. 
 
 {k) L. R. 4 Ch. 117, per Lord Cairns, C.
 
 THIRD RULE IN IIADLEY V. BAXENDALE. 
 
 43 
 
 Chancellor, would probably exclude all special and exceptional 
 profits derivable from the use of the particular chattel, but 
 it would leave open the same question which arose in Hadleij 
 V. Baxendale. Where the chattel was itself only part of 
 something else which was rendered useless for want of it, 
 should the profit of the entire chattel be recovered ? If a 
 vessel were delayed in port for want of a bowsprit, should a 
 loss of freight, to the amount, perhaps, of thousands of 
 pounds, be obtained in damages ? To this question no answer 
 is supplied by the rule above suggested. 
 
 With the single exception of actions for breach of promise Question 
 of marriage, I am not aware of any cases in which it has been ^^JJiJ^^^'^j^jj i_,^ 
 held in England that the motives or conduct of a party a ground of 
 breaking a contract, or any injurious circumstauces not flowing ^^^°[JJJ°q^' 
 from the breach itself, could be considered in damages where contract? 
 the action is on the contract. It frequently happens that 
 circumstances of malice, fraud, or violence give rise to an 
 action of tort as an alternative remedy ; but where the 
 plaintiff chooses to sue upon the contract, he lets in all the 
 consequences of that form of action (l). It has been held, 
 indeed, in an action for money had and received, by assignees 
 in bankruptcy, for the proceeds of a bill lodged with the 
 defendants by the bankrupt in order to be discounted, that 
 evidence of a fraudulent appropriation of it before bankruptcy 
 would preclude their set-off {ni). But here the evidence went, 
 not to increase the damages, but to show that the counter 
 claim was not a case of mutual credit within the statute {n). 
 In America, hoAvever, the contrary doctrine has been laid down 
 in the State of South Carolina, but is strongly combated by 
 Mr. Sedgwick (o). 
 
 So it was considered at one time, where the vendor of real Failure to 
 estate had failed to make out a good title, and was sued for ^^"^^^1°"^ f^^^Jj, 
 breach of his contract to sell, that he would be liable to higher 
 damages if he had fraudulently or knowingly represented that 
 he had a good title, than if he had been in ignorance of its 
 defects. But this doctrine, after being frequently doubted, has 
 
 (?) Thorpe v. Thorfe, 3 B. & Ad. 580. 
 (m) Buchanan v. Pindlai/, 9 B. & C. 738. 
 (n) Per Parke, B., 3 B. & Ad. 585. 
 (o) Sedg. Dam. p. 443 et seq., 7tli ed.
 
 actions of tort. 
 
 44 GENERAL TRINCIPLES OF DAMAGE. 
 
 now been finally overruled. The fraud may give a cause of 
 action for deceit. But as long as the plaintiff chooses to sue 
 for breach of contract, he cannot, by establishing misconduct 
 on the part of the defendant, alter the rule by which damages 
 for breach of contract are to be assessed (p). 
 [.^ule of Actions of tort, as we have observed before, are governed by 
 
 damages in f^r looser principles. Even here, however, in many cases, the 
 measure of damages is as accurately ascertainable as in actions 
 on a contract. Torts are divisible into three classes : injuries 
 to the property, person, or character. Those of the former 
 class may be mingled with ingredients which will enhance the 
 damages to any amount. For instance, a man's goods may 
 be seized under circumstances which involve a charge of a 
 criminal nature (q) ; or a trespass upon land may be attended 
 with wanton insult to the owner (r). Any species of aggrava- 
 tion will of course give ground for additional damages. In 
 general, however, injuries to property, when unattended by 
 circumstances of this sort, and especially when they take place 
 under a fancied right, are only visited with damages propor- 
 tioned to the actual pecuniary loss sustained. On the other 
 hand, where the person or character is injured, it is difficult, 
 if not quite impossible, to fix any limit, and the verdict is 
 generally a resultant of the opposing forces of the counsel on 
 either side, tempered by such moderating remarks as the judge 
 may think the occasion requires. It must not be supposed, 
 however, that even cases of this sort are quite beyond rule. 
 If it were so, there could be no such thing as new trials for 
 excessive damages. The difference is, that in cases of contract, 
 and in some cases of tort to the property, a rule can be applied 
 to the facts so accurately as to make the amount a mere matter 
 of calculation. In the other class of offences, the rule goes no 
 further than to point out what evidence may be admitted, 
 and what grounds of complaint may be allowed for. But 
 when this is done the amount of damages is entirely in the 
 disposition of the jury. A new trial will only be granted 
 
 {p) Per BlackburB, J., Sikes v. Wild, 1 B. & S. at p. 594 ; 30 L. J. Q. B. 
 at p. 330 ; per Cockburn, C. J., Eyigel v. Fitch, L. K. 3 Q. B. p. 327 ; per 
 Lord Chelmsford, Bain v. Fothen/ill, L. R. 7 H. L. p. 206. 
 
 (q) Bracejirdle v. Orford, 2 M. & S. 77. 
 
 (r) Merest v. Harvey, 5 Taunt. 442.
 
 ACTIONS OF TORT. 
 
 45 
 
 •when the verdict is so large as to satisfy the Court that it was 
 perverse and the result of gross error ; and to prove that the 
 jury have acted under the influence of undue motives or 
 misconception (s). 
 
 One marked distinction between actions of contract and tort Motive admis- 
 is, that in the former, as we have seen, evidence of malicious g']e,^eQ^t,'^° 
 motive is not admissible, in the latter it is (/). There are assessing 
 indeed some observations of Pollock, C.B., in a later case (u), ^'"^ees'- 
 where he expressed a doubt whether the motive of the de- 
 fendant had any bearing upon the matter, and said that the 
 plaintiif was only entitled to compensation in proportion to 
 the injury he had received. It was not necessary, however, 
 to decide the point in the particular case, which merely 
 established that in an action against two, the motive of one 
 cannot be matter of aggravation against the other (x). It is 
 conceived that the practice against which the dictum in 
 question was directed, is too firmly settled, both by reason and 
 precedent, to be overthrown ; in fact, it could not^ be over- 
 thrown without destroying at the same time that large class 
 of actions in which malice is the whole gist of the oflFence. 
 Where a party has been arrested, sued, or prosecuted without 
 cause, the injury is clearly the same to him, whether the act be 
 malicious or not. Yet, unless malice be not only alleged but 
 proved, an action for the arrest, &c,, will not be maintain- 
 able (y). If then malice can render an innocent act wrongful, 
 a fortiori, it must render a wrongful act more wrongful, and 
 therefore be provable in aggravation of damages. 
 
 This seems to decide an important question, viz., whether Whether 
 damaijes are a compensation or a punishment. In cases of ^am'^ig^^ ^f® "^ 
 
 o i- '^ _ compensation 
 
 contract, as we have seen, they are only a compensation, and or a punish- 
 frequently a very inadequate one. In cases of tort to the ™^°*- 
 property, where there are no circumstances of aggravation, 
 
 (s) Goufjh V. Farr, 1 Y. & J. 477 ; Praed v. Graham, 24 Q. B. D. 53 ; 
 59 L. J. Q. B. 230. 
 
 (t) Sears v. Lyons, 2 Stark. .317 ; Pearson v. Lemaitre, 5 M. & G. 700 ; 
 Warwick v. Foulkes, 12 M. & W. 507 ; per Pollock, C.B., 13 M. & W. 51. 
 
 (m) Clark v. Neivsam, 1 Ex. 131, 139. 
 
 (x) Nor ought the motive of an agent to be matter of aggravation against 
 the principal. Carmichael v. Waterford <£• Limerick Ry. Co., 13 Ir. L. E. 
 313. 
 
 {y) Reynolds v. Kennedy, 1 Wils. 233 ; De Medina v. Grove, 10 Q. B. 
 152.
 
 46 
 
 GENERAL PRINCIPLES OF DAMAGE. 
 
 Inquiry 
 wliethei- 
 damages in 
 cases of tort 
 are a com- 
 Ijensatioii or 
 a penalty ? 
 
 they are generally the same, as will be seen hereafter (z). 
 Where the injury is to the person, or character, or feelings, 
 and the facts disclose fraud, malice, violence, cruelty, or the like, 
 they operate as a punishment, for the benefit of the community, 
 and as restraint to the transgressor. 
 
 It must be admitted that many expressions are to be found 
 in which judges have directed juries merely to give a com- 
 pensation to the plaintiff. In one instance, Alderson, B., 
 refused in an action of crim. con. to allow evidence of the 
 defendant's property with a view to increased damages, saying 
 that it was not a question in the cause (a). As a matter of 
 practice there is no doubt that juries always measured their 
 damages in such cases by the condition of the defendant ; and 
 the practice was expressly sanctioned by the authority of 
 Buller, J. (b), who said that in crim. con. the condition of the 
 defendant, and his being a man of substance, were proper 
 circumstances of aggravation. This would have been absurd 
 if damages were only a payment for an injury ; but if they 
 w^ere a penalty for a wrong, it would be quite just, because the 
 penalty must be proportioned to the means of the offender. So 
 the numberless cases in which damages, totally disproportioned 
 to the actual harm inflicted, have been given and sanctioned 
 where the act was of a grossly unconstitutional nature, or 
 attended with studied insult (c), can only be accounted for on 
 the same principle : accordingly we find Wilmot, C.J., saying 
 in a case of seduction : " Actions of this sort are brought for 
 example's sake ; and although the plaintiff's loss in this case 
 may not really amount to the value of 2()s., yet the jury have 
 done right in giving liberal damages" {d). And the same 
 
 (s) See post, c. xiii. 
 
 {a) James v. Biddinrjton, 6 C. & P. 590. This is now tLe established 
 rule, see post, Adultery, p. 494. 
 
 (6) B. N. P. 27. 
 
 (c) See various instances, post, p. 586 et seq. 
 
 {d) TulUd[/e v. Wade, 3 Wils. 18. Where a railway company bad ob- 
 structed a siding belonging to an adjoining landowner with a high liand, and 
 in violation of his rights under an Act of Parliament, Willes, J., and Byles, J., 
 were of opinion that exemplary damages might justly be given ; the latter 
 saying, "Where a wrongful act is accompanied by words of contumely and 
 abuse, the jury are warranted in taking that into consideration, and giving 
 retributory damages" Bell v. Midland Ry. Co., 10 C. B. N. S. 287, see 
 at p. 308 ; 30 L. J. C. P. 273. And liberal damages were allowed to be 
 given against one who negligently and recklessly pulled down buildings on his 
 own land, so as to injure his neighbour, with a view to make him give up 
 possession. Emhien v. Myers, 6 H. & N. 54 ; 30 L. J. Ex, 71.
 
 REMOTENESS OF DAMAGE. 47 
 
 doctrine that damages may in such cases be inflicted " for 
 example's sake, and by way of punishing the defendant," has 
 been repeatedly laid down in America, and is sanctioned by 
 the high authority of Kent, C.J., and Story, J. (e). In fact, 
 if any other rule existed, a man of large fortune might, by 
 a certain outlay, purchase the right of being a public tor- 
 mentor. He might copy the example of the young Roman 
 noble mentioned by Gribbon, who used to run along the Forum 
 striking every one he met upon the cheek, while a slave 
 followed with a purse, making a legal tender of the statutory 
 shilling. 
 
 II. Having examined the principles by which the assessment Damage must 
 of damages is governed, we have next to inquire, what grounds ^^'^^ ^^ *°° 
 of damage will in no case be admissible. These grounds may 
 be classed under the general head of remoteness. Damage is 
 said to be remote, when, although arising out of the cause of ^ 
 action, it does not so immediately and necessarily flow from it, 
 as that the offending party can be made responsible for it (/). 
 
 In pursuing this investigation several decisions will be cited 
 which may, at first sight, appear not strictly in point. I refer 
 to that class of cases in which special damage is necessary for 
 the maintenance of the action, and in which the contest has 
 been as to its sufficiency for that purpose. It is clear, however, 
 that any circumstances of injury to the plaintiff which are so 
 closely identified with the conduct of the defendant, as to make 
 it actionable where it would otherwise be innocent, must, a 
 foriiori, be capable of being taken into consideration in esti- 
 mating the amount of damage his conduct has produced. The 
 converse of the proposition may not always be logically correct. 
 In general, however, it will be found that where damage is too 
 remote to form the ground of an action, the reason of the 
 decision would equally exclude it from consideration, though 
 the suit were maintainable on other grounds. 
 
 The first, ind in fact the only inquiry, in all these cases is General 
 whether the damage complained of is the natural and reason- P^i^ciple. 
 
 (e) Sedg. Dam. vol. 2, pp. 209 — 217, where the decisions are cited ; vol. 2, 
 p. 335 et ,<<eq., 7th ed. 
 
 (/) The question of remoteness is for the judge and ought never to be left 
 to the jury. Hobbs v. Z. cfc -S'. W. Ry., L. R. 10 Q. B. at p. 122, per Black- 
 burn, J. See also per Lord Esber, M.R., in Hammond v. Bussey, 20 Q. B. 
 D. at p. 89 ; 57 L. J. Q. B. 58.
 
 48 
 
 GENEKAL PRINCIPLES OF DAMAGE. 
 
 Damage must 
 be the imme- 
 diate result of 
 the act com- 
 plained of. 
 
 able result of the defendant's act ; it will assume this character 
 if it can be shown to be such a consequence, as, in the ordinary 
 course of things would flow from the act, or in cases of contract, 
 if it appears to have been contemplated by both parties {g). 
 "Where neither of these elements exists, the damage is said to 
 be too remote. 
 
 The above rule has been frequently adopted by the Courts (Ji), 
 but it must be admitted, in the language of one of our 
 judges, that it is a vague rule, and something like having to 
 draw a line between night and day ; there is a great duration 
 of twilight, when it is neither night nor day (^). Every cause 
 leads to an infinite sequence of effects. But the author of the 
 initial cause cannot be made responsible for all the effects in 
 the series. In a case where a passenger, who had been set 
 down with his wife at a wn-ong station, sought to recover from 
 the railway company damages for a cold which his wife had 
 caught by walking in the rain at night, Cockburn, C.J., said : 
 " You must have something immediately flowing out of the 
 breach of contract complained of, something immediately con- 
 nected with it, and not merely connected with it through a 
 series of causes intervening between the immediate consequence 
 of the breach of contract and the damage or injury complained 
 of ilc). To illustrate that, I cannot take a better case than the 
 
 {g) Hadlcy v. Baxendale, 9 Ex. 341 ; 23 L. J. Ex. 179. See ante, p. 11. 
 
 (/?,) In Hoey v. Feltrm, 11 C. B. N. S. 142 ; 31 L. J. C. P. 105 ; Erie, 
 C.J. ; and in Williams v. Reynolds, 6 B. & S. 495 ; 34 L. J. Q. B. 221, 
 Crompton, J., adopted the passage in the text. In the Nottiruj Hill, 9 P. D. 
 p. 114 ; f 3 L. J. P. D. & A. 56, Brett, M.R. , said that, upon the question 
 of remoteness of damage, there is no distinction between actions upon contract 
 and those not upon contract. See per Bo wen. L.J., in Cohi v. G. W. Ry. 
 Co., [1893] 1 Q. B. at p. 464 ; 62 L. J. Q. B. 335. The same rule applies 
 in the Admiralty Courts as in the Courts of Common Law. The Argentina, 
 13 P. D. 191 ; per Lord Esher, at p. 195 ; and on appeal, 14 A. C, at p. 
 522 ; per Lord Herschell, 57 L. J. P. D. ik A. 25. See also as to the rule in 
 actions for wrongful acts. In re L. T. d: S. Ry. Co. tt Trustees of Gowers 
 Walk Schools, 24 Q. B. D., at p. 329 ; 59 L. J. Q. B., p. 162 : Victorian 
 R. P. Comm. v. Coultar, 13 A. C, at p. 225 ; 57 L. J. P. C. 69 : The 
 Argentin'\ 14 A. C, at p. 523 ; 57 L. J. P. D. & A. 25. And see Uohhs y. 
 L. <L S. W. Ry. Co., L. R. 10 Q. B. 111. 
 
 ({) Per Blackburn, J., L. R. 10 Q. B. 121. 
 
 (k) See Lord Bacon's maxim : — " It were infinite for the law to judge the 
 cause of causes, and their impulsions one of another ; therefore it contenteth 
 itself with the immediate cause, and judgeth of acts by that, without looking 
 to any further degree." Bac. Max. Reg. 1, cited by Blackburn, J., in stating 
 the rule of our law to be that the immediate cause, the causa proxima, and 
 not the remote cause, is to be looked at. Sneesby v. L. d: Y. Ry. Co., L. E.
 
 EEMOTENESS OF DAMAGE. 49 
 
 one now before us. Suppose that a passenger is put out at a 
 ^vrong station on a wet night, and obliged to walk a consider- 
 able distance in the rain, catching a violent cold, which ends 
 in a fever, and the passenger is laid up for a couple of months, 
 and loses, through his illness, the offer of an appointment which 
 would have brouoht him a handsome salary. No one, I think? 
 who understood the law, would say that the loss so occasioned 
 is so connected with the breach of contract as that the carrier 
 breaking the contract would be liable. Here it cannot be said 
 the catching cold by the plaintiff's wife is the immediate and 
 necessary effect; of the breach of contract, or was one which 
 could fairly be said to have been in the contemplation of the 
 parties. The wife's cold and its consequences cannot stand 
 upon the same footing as the personal inconvenience arising from 
 the additional distance which the plaintiffs had to go. It is an 
 effect of the breach of contract in a certain sense, but removed 
 one stage ; it is not the primary, but the secondary conse- 
 quence of it." The Chief Justice proceeded to put the cases of a 
 passenger who, from not being carried to his proper destination, 
 walks in a dark night and falls down ; or takes a carriage and 
 is upset, suffering bodily injury, and added : " In either of 
 those cases the injury is too remote, and I think that is the 
 case here ; it is nob the necessary consequence, it is not even 
 the probable consequence of a person being put down at an 
 improper place and having to walk home, that he should 
 sustain either personal injury or catch a cold. That cannot be 
 said to be within the contemplation of the parties so as to 
 entitle the plaintiff to recover, and to make the defendants 
 liable to pay damages for the consequences" (/). 
 
 Of course the decision in the above case Avould have been Negligence 
 
 9 Q. B , at p. 267 ; 43 L. J. Q. B., at p. 71. See also per Blackburn, J., 
 Dudgeon v. Pembroke, L. R. 9 Q. B., at p. 595 ; 42 L. J. Q. B., at p. 226. 
 Per Lord Selborne, L.C., Grant v. Coverdale, 9 App. Ca. p. 476. 
 
 {I) Jlobbs V. L. cfc S. \V. Ry. Co., L. R. 10 Q. B. Ill, 117 ; 44 L, J. Q. B. 
 49. In McMahon v. Field, 7 Q. B. D. 591, ante, p. 22, tliis decision was 
 treated with some discredit. Botk cases were decided on exactly tlie same 
 principles, though in each case there might easily be a difterence of opinion 
 as to whether the actual loss suffered was a probable consequence of the breach 
 of contract. It is not a natural consequence of the negligence of a railway 
 company in allowing their carriages to be overcrowded, that one of the 
 passengers should be assaulted or robbed. Pounder v. N. E. Ry. Co., [1892] 
 1 Q. B. .385; 61 L. J. Q. B. 136 : Cobb v. G. W. Ry. Co., [1893] 1 Q. B. 
 459 : 62 L. J. Q. B. 335. 
 
 M.D. E
 
 50 
 
 GENERAL PRINCirLES OF DAMAGE. 
 
 causing per- 
 sonal injury. 
 
 Results of 
 friffht. 
 
 different, if, instead of putting the plaintiff down safely at the 
 wrong place, the railway company had by their negligence 
 caused any personal injury to him. In such an event not only 
 the immediate pain and expense caused by the accident, but any 
 " consequent incapacity to attend to business, would be a 
 natural consequence of the breach of contract, and not too 
 remote, or one which the defendants could say that they did 
 not contemplate" (m). But if by the plaintiff's illness he had 
 lost a valuable appointment, that, I imagine, would again have 
 been too remote to be a ground of damage (71). Such a loss 
 results fi'om a circumstance peculiar to the individual, and 
 therefore beyond the range of ordinary consequences. Probably 
 this was the ground of the ruling in Victorian Railways Com- 
 missioners V. Coultar (o). There the defendants had neghgently 
 allowed some persons, one of whom was a lady, the plaintiff, to 
 drive over a level crossing, by which they were nearly run 
 over by a passing train. No actual harm happened, but the 
 fright caused a mental shock to the lady, producing delicate 
 health and impaired memory and eyesight, which were stated 
 as the ground of damage. The Privy Council declined to say 
 whether actual impact was necessary, but held that damages 
 resulting from mere sudden terror unaccompanied by any 
 actual physical injury, but occasioning a nervous or mental 
 shock, could not be considered the natural consequence of the 
 negligence complained of. In the particular case there were 
 other members of the party who were exposed to the same 
 fright, but suffered no further harm. If the plaintiff had been 
 subject to heart disease and died from fright, this would nob 
 have lieen a natural consequence of the defendants' act. 
 
 This case was cited but not followed in a more recent case in 
 Ireland. There, through the negligent act of the defendants' 
 servants, a train was divided on an incline. The rear jiart of 
 the train was allowed to run back down the incline, and then 
 the forward part with the engine was started back to follow it. 
 This part, in which the plaintiff, a lady, was seated, proceeded 
 at a high speed till it was stopped with a violent jerk. It 
 
 [m) Braihhaw v. L. <£• Y. Ry. Co., L. E. 10 C. P. 185, 195 ; 44 L. J. 
 C. P. 148 Seeijer Martin, B., L. R. 1 Ex. 184 ; 35 L. J. Ex. 100. 
 (n) See Hoey v. Felton, 11 C. B. N. S. 142 ; 31 L. J. C. P. 105. 
 (o) 13 App. Ca. 222 ; 57 L. J. P. C. Q''^.
 
 REMOTENESS OF DAMAGE. 
 
 appeared that the plaintiff was greatly frightened by the occur- 
 rence, and suffered from nervous shock in consequence of the 
 fright. She was incapacitated from following her usual occupa- 
 tions, and the medical witnesses were of opinion that her 
 symptoms might result in paralysis. The judge told the jury 
 that they might award damages, if they were of opinion that 
 the injuries suffered were the natural result of the fright, and 
 that the degree of fright experienced was the natural result of 
 the circumstances brought about by the defendants' act. This 
 direction was supported on appeal (p). The Court appear to 
 have thought that their decision was inconsistent with that of 
 the Victorian Railways. The two cases may, however, very 
 well stand together. It is evident that the railway company in 
 the second case had contracted to carry the plaintiff carefully 
 towards her destination, and that they had broken their con- 
 tract by starting her violently down hill in the wrong direction, 
 and thereby frightening her and shaking her up. The injury 
 to her system was that which is familiarly known as " railway 
 shock," and was the immediate result of the wrong complained 
 of. In the former case the railway company had entered into 
 no contract with the plaintiff, and had never been in charge of 
 her person, nor had directly affected it in any way. It does nob 
 appear how the jury was directed by the judge. If the jury 
 had been asked whether such injuries as the plaintiff suffered 
 were the natural result of finding herself in alarming proximity 
 to a passing train, they might probably have answered in the 
 negative. 
 
 The same question has arisen in insurance cases, where it is Kesults of 
 disputed whether the loss complained of has arisen from the ''^^'^^^i*^''*" 
 accident insured against. A railway passenger was insured 
 against " death from the effects of injury caused by accident." 
 The accident was a fall which dislocated his shoulder. He 
 died of pneumonia caused by cold. It was found as a fact 
 *' that his catching cold and the fatal effects of the cold were 
 both due to the condition of health to which he was reduced by 
 the accident." It was held that his death came Avithin the 
 terms of the policy. Wills, J., said :— " Had the issue been 
 submitted to a jury, I think that the proper direction would 
 
 {p) Bell V. G. N. By. Co., 26 Ir. L. Rep. C. L. 428. 
 
 E 2
 
 52 GENERAL PRINCIPLES OF DAMAGE. 
 
 have been, ' Bo you think that the circumstances leading up to 
 the death/inchiciing the cold which caused the pneumonia, were 
 the reasonable and natural consequences of the injury, and of 
 the conditions under which the assured had to live in conse- 
 quence of the injury ? ' If you find that no foreign cause inter- 
 vened, and that nothing happened except what was to be reason- 
 ably expected under the circumstances, you may and ought to 
 find that the death resulted from the effects of the injury " (q). 
 Exactly the same direction would be given if the action had 
 been against a defendant whose wrongful act had caused the 
 accident. 
 
 A daring attempt to extend the doctrine of consequential 
 damages failed deservedly in the following case (r). The de- 
 fendant, in breach of a Police Act, washed a van in a public 
 street, and allowed the waste water to run down the gutter 
 to a grating about twenty-five yards off, from which in the 
 ordinary state of things it would have drained into the sewer. 
 In consequence of a hard frost the grating was obstructed by 
 ice, and the water in consequence flowed over the pavement and 
 froze. There was no evidence that the defendant knew of the 
 grating being obstructed. The plaintiff"s horse slipped on the 
 ice and broke its leg. It was sought to recover from the 
 defendant the value of the horse. But it was held that the 
 damage was too remote, not being one which he could fairly be 
 expected to anticipate as likely to ensue fi'om his act (s). 
 Another, and equally fatal objection was, that the defendant's 
 conduct was only wrongful as being in breach of a Police Act, 
 and that the harm resulting from it to the plaintiff was not the 
 particular sort of mischief which the statute was intended to 
 prevent (i!). 
 Wilson V. In the case of Wilso^i v. Ncivport Doch Comfany («) the 
 
 t'onvpnnv. ' Court of Exchequer was unable, upon the materials before it. 
 
 {c[) Isitt V. Railway Passengers Assurance Co., 22 Q. B. D. 504, j). 512 ; 
 58 L. J. Q. B. 19L 
 
 (7-) ,'ihnrp V. Powell, L. R. 7 C. P. 253 ; 41 L. J. C. P. 95. 
 
 (s) See, too, Crouch v. G. N. By. Co., 11 Ex. 742 ; 25 L. J. Ex. 137 : 
 Burton v. Pirikerton, L. R. 2 Ex. 340 ; 36 L. .T. Ex. 137 ; Caior v. G. W. 
 Ins. Co., L. R. 8 C. P. 552 ; 42 L. J. C. P. 266. 
 
 (<) See Gorris v. Scott, L. R. 9 Ex. 125 ; 43 L. J. Ex. 92 : Ward v. Ilohhs, 
 4 App. Cas. 13, ante, p. 21. 
 
 (u) L. R. 1 Ex. 177 ; 35 L. J. Ex. 97.
 
 REMOTENESS OF DAMAGE. 
 
 to decide whether the claim lay on one side or the other of tlie 
 dividing-line between proximate and remote damages. There 
 the defendants contracted to receive a ship into dock at a 
 specified time. The ship was brought to the dock in ballast at 
 the specified time, but owing to the breaking of one of the 
 chains of the dock-gate she could not be admitted. The day- 
 was stormy, and after a consultation between the pilot and 
 captain, the latter anchored the vessel opposite the dock. At 
 the turn of the tide she grounded on a sandbank and broke her 
 back. The plaintiff sued to recover her value, and at the trial 
 two questions were left to the jury. First, was it possible to 
 have taken the vessel to a place of safety ? Second, if so, was 
 it the fault of the captain or the pilot that she was not so 
 taken ? The jury were unable to agree on the first question, 
 but found on the second that there was no negligence on the 
 part of either captain or pilot. Martin, B., was of opinion upon 
 these findings that the defendants were liable. He thought the 
 verdict of the jury amounted to this, that the defendants' 
 breach of contract placed the captain in a position in which he 
 had to adopt one of several perilous alternatives, and that he 
 acted in a proper and reasonable manner under the circum- 
 stances. The defendants were therefore responsible for the 
 consequences, which were the natural result of the course he 
 adopted. He considered that the case was decided by the 
 authority of Jones v. Boyce{x), where an accident happened to 
 a stage-coach, upon which the plaintiff jumped down and broke 
 his leg. Lord Ellenborough put it to the jury to consider, 
 whether the plaintiff's acts were such as a reasonable and 
 prudent mind would have adopted, and added : " If I place a 
 man in such a situation that he must adopt a perilous alterna- 
 tive, I am responsible for the consequences." The rest of the 
 Court, however, thought that the want of any finding upon the 
 first question rendered it impossible to decide the case. They 
 pointed out, that if there was any place of safety to which the 
 ship could and ought to have been taken, then the defendants 
 were not responsible. Nor would they have been responsible if 
 the weather was so stormy that it was an unsafe thing to take 
 the ship to the dock at all. A new trial was therefore directed 
 to settle these points. 
 
 {x) 1 Stark. 493. 
 
 53
 
 54 GENERAL PRINCIPLES OF DAMAGE. 
 
 "When profits One very common instance in which damages are held to be 
 
 ^']^^ ''°i t too remote arises where the plaintiif claims compensation for the 
 
 allovvcil tor. ■* . -. 
 
 profits \Yhich he would have made, if the defendant had carried 
 out his contract. It is by no means true, however, that such 
 jjrofits can never form a ground of damage (v/). Loss of profits 
 is recoverable so far as it is the natural result of the breach of 
 contract, but not when it is founded on a special contract for 
 re-sale, unknown to the defendant, which is ffustrated by that 
 breach. This distinction has been very clearly pointed out in 
 a case in the Supreme Court of New York. The plaintiffs had 
 contracted with the defendants to furnish marble from a specified 
 quarry at a fixed sum for the erection of a City Hall. The 
 plaintiffs entered into a contract with the proprietors of the 
 quarry for the required amount at a smaller sum. After 
 delivering a part of the marble the defendants refused to 
 receive any more. The plaintiffs sued for breach of contract, 
 and claimed as damages the profit they would have made by 
 furnishing the marble at a larger sum than they were to pay for 
 it. Kent, J., ruled accordingly " that the jury should allow the 
 plaintiffs as much as the performance of the contract would 
 have benefited them ; " and this ruling was affirmed in the 
 court above. Nelson, C.,J., said, " It is not to be denied that 
 there are profits or gains derivable from a contract which are 
 uniformly rejected as too contingent and speculative in their 
 nature, and too dependent upon the fluctuation of markets and 
 the chances of business to enter into a safe or reasonable 
 estimate of damage. Thus any supposed successful operation 
 the party might have made, if he had not been prevented from 
 
 (y) In cases of iiifringement of patent or unlawful use of trade mark, loss 
 of profits forms the substantial ground for the claim of compensation. It has 
 been decided that special damage, by loss of custom or otherwise, must be 
 proved, where a trade mark has been used ; and it cannot be assumed that 
 the goods sold by the defendant would have been sold by the plaintiff, but 
 for the defendant's unlawful use of his trade mark. Leather Cloth Co. v. 
 Jlirschfield, L. R. ] Eq. 299. On the other hand, every sale of a patented 
 article must be a damage to the patentee, see ^3W Page-Wood, \ .-G. , DavenjJort 
 v. Rylands, L. R. 1 Eq. 302, where the difference in form between the inquiry 
 as to damages in the case of a patent and of a trade mai-k is pointed out. 
 Where a patentee has been in the habit of granting licences at a certain 
 royalty, the measure of damages will be the amount of royalty which ou<Tht to 
 have been paid. Pcnn v. Jack, L. R. 5 Eq. 18 ; 36 L. J. Ch. 455.'' See 
 also Betts v. De Vitre, 34 L. J. Ch. 289 : United Horse Shoe Co. v. Stewart, 
 13 App. Ca. 401 : American Braided Wire Co. v. Thomson, 44 Ch. D. 274 • 
 59 L. J. Ch. 425.
 
 REMOTENESS OF DAMAGE. 
 
 55 
 
 Tealizino- the proceeds of the contract at the time stipulated, is 
 a consideration not to be taken into the estimate. Besides the 
 uncertain and contingent issue of such an operation, in itself 
 considered, it has no legal or necessary connection with the 
 stipulations between the parties, and cannot, therefore, be 
 presumed to have entered into their consideration at the time 
 
 of contracting When the books and cases speak of the 
 
 profits anticipated from a good bargain, as matters too remote 
 and uncertain to be taken into the account in ascertaining the 
 true measure of damages, they usually have reference to depen- 
 dent and collateral engagements entered into on the faith and in 
 expectation of the performance of the principal contract. But 
 profits 0]' advantages which are the direct and immediate fruits 
 of the contract entered into between the parties, stand upon a 
 different footing. These are part and parcel of the contract 
 itself— entering into and constituting a portion of its very 
 elements, something stipulated for, the right to the enjoyment 
 of which is just as clear and plain as to the fulfilment of any 
 other stipulation. They are presumed to have been taken into 
 consideration and deliberated upon before the contract was 
 made, and formed, perhaps, the only inducement to the 
 arrangement " (s). 
 
 The distinction pointed out in the above judgment be- Difference 
 tween primary and secondary profits furnishes the key to J',^i^^j.y ^nd 
 the English cases in which profits have been admitted and secondary 
 rejected as an element in the damages allowed. Many of these i'™^*''- 
 cases have already been cited and commented on. For instance, 
 wliere the act complained of was the non-dehvery of a ship, the 
 measure of damages was the profit that might have been made 
 out of her use (a). So in the case of non-delivery of goods, 
 the measure of damages is the ordinary selling price of the 
 goods, that is the ordinary profit that would have been made 
 if they had been received in due course ; but not the special 
 profit that would have arisen from some exceptional contract 
 for resale (&). So where an action was brought against the 
 
 (z) Masterton v. Mayor of BrooUyn, 7 Hill, 62. 
 
 (a) Fletcher v. Tayleur, 17 C. B. 21 ; 25 L. J. C. P. 65 ; ante, p. 13 : 
 Cory V. Thames Ironworks Co., L. R. 3 Q. B. 181 ; ante, p. 27 : £x parte 
 Cambrian Steam Packet Co., L. R. 6 Eq. 396 ; L. R. 4 Cb. 117 ; ante, p. 42 : 
 The Argcrdino, 14 App. Ca. 519 ; 58 L. J. P. D. A. 1. 
 
 (6) Wilson V. Lancashire d: Yorkshire Ry. Co., 9 C. B. N. S. 632 ; 30 L.
 
 56 GENERAL PRINCIPLES OF DAMAGE. 
 
 defendants for not fulfilling a contract to fit up certain 
 
 machinery within a reasonable time. The declaration laid as 
 
 special damage the loss of time of the plaintiff's apprentices, 
 
 who were in consequence kept unemployed ; and also the loss 
 
 they had incurred by being unable to perform a contract 
 
 entered into with another firm for the supply of bobbin. It 
 
 appeared that this contract being for the sale of goods above 
 
 the value of lO/'. was not valid, for want of writing, under the 
 
 Statute of Frauds. The first item of damage was allowed 
 
 without question. As to the second, Alderson, B., said, " The 
 
 defendants undertook to perform a contract within a reasonable 
 
 time, and failed to do so ; the plaintiffs say, ' We should have 
 
 made certain profits had the contract been performed.' The 
 
 jury are not bound to adopt any specific contract that may have 
 
 been made ; but if reasonable evidence is given that the amount 
 
 of profit would have been as claimed, the damages may be assessed 
 
 accordingly " (c). And so a person who fails to supply a piece 
 
 of mechanism, which is, and which he knew to be, only valuable 
 
 as forming part of an entire machine, will be responsible for 
 
 any loss of profits flowing from the inutility of that which it 
 
 was intended to complete (d). 
 
 Oases where Numerous instances will occur in the course of this work 
 
 profits not i,-i -^hich loss of profits has been reiected as an element in 
 allowed for. » ^ • -, • t i 
 
 damages. A few instances, however, may be mentioned here 
 
 as further illustrating the rule. In detinue for not returning 
 
 scrip it was ruled by Cresswell, J., that no damages could be 
 
 given for the loss sustained by the plaintiff, in consequence of 
 
 the detention of the shares having prevented his paying up 
 
 deposits, which would have entitled him to an allotment of one 
 
 thousand other shares, as this damage was too remote (e). In 
 
 an action against a company for wrongfully refusing to register 
 
 a transfer of shares, in which the consideration for the transfer 
 
 J. C. P. 232 ; ante, p. 14 : Borrics v. Hutchinson, 18 C. B, N. S. 445 ; 
 34 L. J. C. P. 169 : Home v. Midland Ry. Co., L. R. 7 0. P. 583 ; L. R. 
 8 C. P. 131 ; 42 L. J. C. P. 59 ; arde, p. 29 : Larios v. Gurety, L. R. 5 P. 
 C. 346, 358 : Grehert Borgnis v. Nugent, 15 Q. B. D. 85 ; 54 L. J. Q. B. 
 5ll ; ante, p. 39 : Eammond v. Bussey, 20 Q. B. D. 79 ; 57 L. J. Q. B. 
 5S- See as to breach of contract to lend money, Western Waggon Co. \ 
 west, [1892] 1 Ch. 271, p. 277 ; 61 L. J. Ch. 244. 
 
 (c) Waters v. Toivers, 8 Ex. 401. See 22 L. J. Ex. 187. 
 
 (d) Hydraulic Engiiieering Co. v. McHaffie, 4 Q. B. D. 670 ; ante, p. 38. 
 
 (e) Archer Y. WiUiams, 2 C. & K. 26.
 
 REMOTENESS OF DAMAGE. 
 
 57 
 
 Wcas stated at a nominal sum, it was held that the company 
 con Id not be compelled to pay substantial damages on the 
 ground that the real contract between the plaintiff and his 
 transferee was, that the latter should take the shares at their 
 then market value, and that this value was higher than that at 
 which the shares could have been sold when the company con- 
 sented to register. It would have been different if the real 
 nature of the transfer had been brought to the notice of the 
 company when they were called on to register (/"). So where 
 an auctioneer entered into an agreement on behalf of defendant 
 to sell premises to plaintiff, without having communicated the 
 treaty to the former. The defendant had in the meantime 
 sold to a third party. An action was brought for breach of 
 contract, and the same learned judge held that no damages 
 could be given for the loss of the plaintiff's bargain, saying, 
 *' his real loss is the loss of the use of the 50/. paid as deposit, 
 and the expenses incurred by him to his attorney, and this, I 
 think, is all that he can recover " {g). In another case the 
 contract was to demise a ferry and premises, and the plaintiff 
 was promoter of a company provisionally registered for the 
 purpose of working the ferry, and was also its solicitor. No 
 title could be made out, and in an action against the vendor, it 
 was held that the plaintiff could not recover for loss of profits 
 from the granting of the lease and the establishment of the 
 association ; nor the profits he would have derived from being 
 employed as solicitor by the association, nor in respect of any 
 advantage he Avould have derived from his time, labour, &c., 
 employed in the formation of the association (/?). There is one 
 case in which there seems to have been a difference of opinion 
 between two learned judges. A prize had been offered for the 
 best model of a machine for loading barges. The plaintiff had 
 sent one by railway, but, through the negligence of the defen- 
 dant, it arrived too late, and the plaintiff lost his chance of the 
 prize. A question arose as to the measure of damages, whether Lasing chance 
 it was the value of the work and materials, or whether the prize °^ ^ i"'^^- 
 
 (/) Skinner v. City of London Marine Insurance Corporation, 14 Q. B. D. 
 882 ; 54 L. J. Q. B. 437. 
 
 {ff) Tyrer v. Kinrj, 2 C. & K. 151. See upon this point, post, p. 198 et 
 
 {h) Ranslip v. Padwick, 5 Ex. 615.
 
 58 
 
 GENERAL PRINCIPLES OF DAMAGE. 
 
 Scotch law as 
 to profits 
 different. 
 
 might be taken into consideration. Patteson, J., seemed to 
 think it might : he said, " The plaintiff had put his damage 
 upon a right principle, for he said the goods were made for a 
 specific purpose, which has been defeated by the neghgence of 
 the defendant, and they have become useless." Erie, J., said, 
 " I have had great doubts whether that chance was not too 
 remote and contingent to be the subject of damages" (0- ^o 
 decision was given, as the case went off upon a different point. 
 It is apprehended, however, that the ofjinion of Erie, J., was 
 the true one. The question seems to come to this : Was the 
 plaintiff's chance of winning the prize a matter of such an 
 ascertainable value at the time of enter hig into the contract of 
 carriage, as to have been capable of contemplation by both 
 parties ? If it was not ascertainable then, it is difficult to see 
 how it could have formed part of the contract, and if it did 
 not form part of the contract, it could not enter into the 
 damages for breach. Suppose the same carrier had been en- 
 trusted with all the models sent for competition, and delayed 
 them all, should he pay the amount of the prize to each, or 
 apportion it among them, or how ? Even if the actual judges 
 gave evidence that a particular model would have won the 
 prize, still this would be matter ex pod facto, not known at the 
 time of the bargain, and forming no part of it. The case is 
 very like one alluded to by Lord EUenborough as having been 
 frequently mentioned by Lord Alvanley, where the plaintiff* 
 complained of false imprisonment, pr quod, being confined on 
 shore he lost a lieutenancy. This was taken as an ad absurdum 
 case. Would it have made any difference if the plaintiff had 
 been delayed in a train when travelKng to London to be 
 examined for his commission (k) ? 
 
 It may be as well to state, that according to the Scotch law, 
 loss of profits may be included in the estimate of damages. 
 It was on this ground that Duntop v. Higgins was decided in 
 
 (i) Watson v. Anihergate Ry. Co., 15 Jur. 448. 
 
 (it) Boyce v. Bayliffe, 1 Campb. 58. In a case somewliat resembling that 
 put by Lord Alvanlej', an attempt was made to i-ecover special damages for 
 the loss of a situation which the plaintiff alleged that he would have obtained 
 ))ut for the false imprisonment which formed the subject of the action, but the 
 damage was held to be too remote. I/oci/ v. Felton, 11 C. B. N. S. 142 ; 31 
 L. J. C. P. 105. See also Burton v. Pinkerton, L. R. 2 Ex. 340 ; 36 L. J. 
 Ex. 137.
 
 REMOTENESS OF DAMAGE. 59 
 
 the House of Lords (/). It was an appeal from a Scotch 
 court ; and it was held that in an action in that country, for 
 non-delivery of goods according- to contract, the damages were 
 not restricted to the difference between the contract and 
 market price, hut that the plaintiff might recover in respect 
 of the profits which he would have made by a contract of 
 re-sale into which he had entered. This decision is in itself 
 no authority in England, as it turned upon the acknowledged 
 difference between the law of the two countries in this respect. 
 It is remarkable, however, for a vigorous onslaught upon the 
 English law, by so formidable an opponent as Lord Cotten- 
 ham, C. He said (m), " If pig-iron had only risen one 
 shilling a ton in the market, but the purchasers had lost 
 1,000Z. upon a contract with a railway company, in my opinion 
 they ought not only to recover the damage which would have 
 arisen if they had gone into the market and bought the iron 
 at the increased price ; but also that profit which would have 
 been received if the party had performed his contract. No 
 other rule is reconcilable with justice, nor with the duty which 
 the jury had to perform, that of deciding the amount of 
 damage which the party has suffered by the breach of his con- 
 tract." But, with the greatest possible respect, it may be 
 suggested that the rule most reconcilable with justice would be 
 to inquire what was the contract, and what were the liabilities 
 really entered into by the parties ? The question is not what 
 profit the plaintiff might have made, but what profit he 
 professed to be purchasing. Xot what damage he actually 
 suffered, but what the other contemplated and undertook to 
 pay for. It is quite clear that loss of profits by a re-sale can 
 never be contemplated, unless the re-sale has actually taken 
 place at the time, and is communicated to the other party. 
 The reason is, that such a profit is utterly incapable of valua- 
 tion. It may depend upon a change of weather, a scientific 
 discovery, an outbreak of war, a workmen's strike. It will 
 depend upon the energy and sagacity of the person who 
 purchases the goods, and the solvency of the person to whom 
 he sells them again. In short, if the Scotch rule Avere to be 
 carried out to its fair extent, no one could contract to sell 
 
 {I) 1 H. L. Ca. S81. (m) 1 H. L. Ca. 403.
 
 GO 
 
 GENERAL PEINCIPLES OF DAMAGE. 
 
 Damage re- 
 mote from 
 want of con- 
 nexion with 
 cause of action. 
 
 Cases of 
 defamation. 
 
 goods which were not actually in his possession, without 
 charging an additional premium, commensurate to the profits 
 which the vendee might possibly make, and for which he 
 himself would have to pay, if prevented from carrying out his 
 agreement (n). 
 
 All the previous cases, according to English law, are resolved 
 by answering the question : — Is the particular result such as 
 might have been contemplated by the parties, as naturally 
 flowing from the act done ? The same question, upon the 
 same principle, solves a number of other cases, in which profits 
 do not come into consideration. For instance : the defendant 
 libelled a concert singer, who, in consequence, refused to sing 
 at the plaintiff"'s oratorio, for fear of being badly received. It 
 was held that this damage to the plaintiff was not sufficiently 
 connected with the act of the defendant to entitle the former 
 to an action. It was said that the refusal to sing might have 
 proceeded from groundless apprehension, or caprice, or some 
 completely difierent cause (o). A still stronger case was where 
 the defendant by beating an actor, prevented his performing, 
 and the injury to the manager of the theatre was also held to be 
 too remote (p). The same principle has been applied in cases 
 of slander, where the words used were not in themselves defa- 
 matory, though by a strained construction they were so under- 
 stood. The plaintiff was a shopwoman, and the defendant 
 had said of her, " she secreted one shilling and sixpence under 
 the till ; stating these are not times to be robbed." In 
 consequence of these words S. refused to employ her. It was 
 held that no action lay. " If S. refused to take the plaintiff 
 into his ser\ice on this account, he acted without reasonable 
 cause ; and in order to make Avords actionable, they must be 
 such that special damage may be the fair and natural result of 
 them" iq). In one case, the Court exercised rather a perverse 
 ingenuity in holding damage to be insufficiently shown. The 
 
 (n) This reasoning was cited with approbation by Crompton, J., and Black- 
 burn, J., in Willicnns v. Retinoids, 6 B. & S. 495 ; 34 L. J. Q. B. 221 : Thol 
 V. J/enderson, 8 Q. B. D. 457. 
 
 (o) Ashley v. Harrison, 1 Esp. 48. 
 
 (p) Taylor y. Neri, 1 Esp. 386 ; but considerable doubts were thrown upon 
 the authority of this decision in the case of Lumley v. Gye, 2 E. & B. 216 ; 
 22 L. J. Q. B. 46;5. 
 
 (5) Per Taunton, J., Kelly v. Partlnrjton, 5 B. k. Ad. 645, 650.
 
 REMOTENESS OF DAMAGE. 61 
 
 plaintiff was a dealer in the funds, and the words were " he is 
 a lame duck," which in Stock Exchange parlance mean, a 
 person unable to fulfil his contracts. The Court said that the 
 contracts alluded to might be unlawful, and if so, no special 
 damage could follow from a charge that he had not done what 
 the law prohibits. It seems rather hard on the plaintiff to 
 assume, for the sake of letting him be abused, that he was 
 acting illegally (r). On the other hand, where words, which 
 in themselves import an accusation, are uttered in presence of 
 a third person, who acts upon them to the injury of the plain- 
 tiff, in such a manner as might naturally have been expected, 
 it is no matter whether the third person believed the accusation 
 or not, if his conduct was in fact caused by the accusation being 
 made. This may be illustrated by a case where the defendant 
 came to his tenant, by whom the plaintiff was employed, and 
 in whose house she lodged, and used language ascribing licen- 
 tious conduct to her. The tenant disbelieved the charge, but 
 turned the plaintiff away for fear of displeasing the landlord (s). 
 In either view the damage was clearly the immediate and pro- 
 bable result of the words used. 
 
 In a case where commissioners of an inland navigation Remote conse- 
 executed a lease of a canal fur a term of years pursuant to a ll"™°j^o7* ^ 
 statute, which enacted that in case the lessee should permit the action. 
 works to be out of repair the commissioners should give him 
 notice to repair, and on his neglecting to do so might do the 
 repairs and pay the expenses out of the tolls, a lock forming 
 part of the navigation fell in, and the plaintiff's barge was 
 delayed. The lock had been out of repair to the knowledge of 
 the commissioners, but they had given no notice to the lessee. 
 The plaintiff claimed from the commissioners damages for the 
 delay, but it was held that, assuming an action to lie against 
 the commissioners for not having given notice to the lessee to 
 repair, the dam.age to the plaintiff was not the proximate 
 natural result of that breach. It did not follow, that if they 
 had given the notice the repairs would have been done {t). 
 And in another case a declaration, stating that the defendant 
 
 (r) Morris v. Langdale, 2 B. & P. 284. 
 («) Knirjht V. Gibhs, 1 A. & E. 43. 
 
 (t) Walker v. Goe, 3 H. & N. 395 ; 27 L. J. Ex. 427 ; affirmed 4 H. & 
 N. 350 ; 28 L. J. Ex. 184.
 
 62 
 
 GENERAL PRINCIPLES OF DAMAGE. 
 
 Damage arising 
 from non- 
 repair of 
 fences. 
 
 Damage from 
 acts of 
 animals. 
 
 Cox V. Bur- 
 bidffe. 
 
 conspired and combined with a confederate to take the 
 plaintiff's premises and set up illicit stills there, and by 
 falsely pretendins: that the premises were wanted for a lawful 
 and innocent trade, induced the plaintiff to let the premises to 
 the confederate, and permit him and the defendant to take 
 possession, whereupon they set up the still and represented the 
 plaintiff to be the proprietor, by reason of which he was con- 
 victed of aiding and abetting in the illicit distillation, was held 
 bad on demurrer, the damage not being the legitimate conse- 
 quence of the defendant's acts (ii). 
 
 There are two old cases in which the defendant was sued 
 for consequential damage, arising from non-repair of his fences. 
 In one case the plaintiff's cattle strayed into defendant's close, 
 and thence upon the land of ^Y., who sued, the plaintiff, which 
 was the damage complained of (x). In another, the plaintiff's 
 mare went through a gap, and falling into a ditch was 
 drowned (//). In neither of these cases was any objection 
 taken on account of the remoteness. They were affirmed and 
 relied upon in a more modern case, where the damage result- 
 ing from a similar non-repair of fences was, that the plaintiff's 
 horse escaped into the defendant's close, and was there killed 
 by the falling of a haystack (2). Here the objection that the 
 damage was too remote was expressly taken and OYerruled. 
 Of course in all such cases it is necessary to show an obligation, 
 by prescription, contract, or statute, to maintain such fences, 
 or that the defendant has created something which amounts to 
 a nuisance (a). 
 
 In some recent cases the liability to damages for injuries 
 resulting from the escape of animals, was decided upon reason- 
 ings which, though uniform in principle, were rather varied 
 in application. In Cox v. Burhiclge (b), the defendant's horse 
 
 {a) Barher v. Lesiter, 7 C. B. N. S. 175 ; 29 L. J. C. P. 161. See for an 
 example of damage too remote in an action of false reiJresentation, Collins v. 
 Cave, 4 H. & N. 225 ; 30 L. J. Ex. 55. 
 
 {x) Holhach v. Warner, Cro. Jac. 665. 
 
 (y) Anon., 1 Ventr. 264. 
 
 (z) Powell V. Salishury, 2 Y. & J. .391 : Lawrence v. Jenkins, L. R. 8 
 Q. B. 274 ; 42 L. J. Q. B. 147 : Uaicson v. iMid. lb/., L. R. 8 Ex. 8 ; 42 L. 
 J. Ex. 49. See, too, ."^necsby v. Z. & Y. By., L. R.^ 9 Q. B. 263 ; 43 L. J. 
 ii. B. 69 ; affirmed 1 Q. B. D. 42 ; 45 L. J. Q. B. 1. 
 
 (o) Matson v. Baird, 3 App. Cas. 1082 : Carry v. G. W. By. Co., 6 Q. B. 
 D. 237 : Wiseman v. Booker, 3 C. P. D. 184. 
 
 [b) 13 C. B. 430; 32 L. J. C. P. 89.
 
 REMOTENESS OF DAMAGE. 63 
 
 had strayed on the highway, and then kicked the plaintiff's 
 
 child, which was the injury complained of. There was no 
 
 evidence why the horse had kicked the child, except that it did 
 
 not arise from any fault of the child. It was held that the 
 
 owner was not liable, as it did not appear that he knew that 
 
 the horse was vicious. The judges said that they assumed 
 
 that the horse was a trespasser, and tha t for all natural results 
 
 of his trespass, such as eating grass, trampling the soil , and the 
 
 like, the owner would he liable, and that, whether the escape of 
 
 the horse resulted from negligence or not . But that it was not 
 
 a natural thing lor a liorse to kick a child unless he was 
 
 vicious. x\nd, therefore, the owner could not be liable for an 
 
 act which only a vicious animal would do, nnless he knew of 
 
 its vice. A contrary decision was arrived at in two later cases, 
 
 the agent in each being also a horse ; but the sufferer being 
 
 a horse also instead of a child. In one case the horse strayed 
 
 through defect of a gate which the defendant was bound to Lee v. RiUy. 
 
 repair, and getting into the plaintiff's field kicked his horse. 
 
 In the other the plaintiff's and defendant's fields were separated Ellis v. Loft us. 
 
 by a wire fence. In the plaintiff's field was a mare, and in the 
 
 defendant's field was an entire horse. The stallion and the 
 
 mare came together at the fence, and then the former bit and 
 
 kicked at the latter through it, thereby injuring her. In both 
 
 cases the defendant was held liable. In the former there was 
 
 no evidence that the offending horse was vicious. In the 
 
 latter, there was direct evidence that he was of as quiet a 
 
 temper as a horse need be (c). In each case the judgment 
 
 was rested upon the ground that the horse was a trespasser, 
 
 and that his act was the natural and direct consequence of his 
 
 coming in contact with the other horse. In Cox v. Burhidfje 
 
 the Court had held that there was no evidence of negligence 
 
 or breach of duty on the defendant's part, as leading to the 
 
 trespassing of the horse. In Ellis v. Loftits the Court held 
 
 that there was negligence on the defendant's part, but that 
 
 the action being one of trespass, the defendant would have 
 
 been equally liable if he had done everything in his power to 
 
 keep his horse from trespassing, but had in fact failed. The 
 
 (c) Lee V. 7?t7f '/, IS C. B. N. S. 722 ; 34 L. J. C. P. 212 : Ellis y. Loftus 
 Iron Co., L. R. 10 C. P. 10 ; 44 L. J. C. P. 24.
 
 64 GENERAL PEINCIPLES OF DAMAGE. 
 
 only difference between the two cases, tlierefore, seems to be, 
 that the judges thought it was natural for a stray horse_ to 
 _ Icick another h orsp. but unnatural for him to kick a "child? 
 That it is natural for a stallion to bite and kick a mare is beyond 
 all dou!)t. In the case of Lea \. RUeij, it was the mare who 
 kicked the horse, which was perhaps equally natural. If in 
 any future case both animals are geldings, an interesting 
 question as to horse nature will arise. 
 
 The following cases are even stronger illustrations of the 
 liabilities which may be incurred in consequence of the un- 
 reasoning and unexpected conduct of animals. In one (d) the 
 defendant had allowed a wire fence to fall into disrepair, so 
 that pieces of the iron broke off, and lay hidden in the grass. 
 A cow ate the iron and died. In the second case {e) the defen- 
 dants planted a yew tree upon their own ground, which in time 
 hpread its branches over the plaintiff's ground. A horse ate it, 
 and was poisoned. In each case the defendant was held liable 
 for the loss. In the former case because he had committed a 
 breach of an express obligation to fence. In the latter, because 
 he had come under the general principle, that a person who 
 brings upon his own land any noxious or dangerous agent, is 
 bound at his o\yn risk to keep it from doing an injury to his 
 neighbour (/). 
 Act wliiiii pre- It is said in one old case, that where a master sends his 
 oruiouey"**^" Servant to pay money for him upon the penalty of a bond, and 
 
 {d) Firth V. Bowling Iron Co., 3 C. P. D. 254 ; 47 L. J. C. P. .358. 
 
 (e) Crowhurst v. Amcr^hmn Burial Board, 4 Ex. D. 5 ; 48 L. J. Ex. 109. 
 
 {/■) Fletcher v. Eylands, L. R. 3 H. L. 330 ; 37 L. J. Ex. 161 : Farrcrv. 
 Nelson, 15 Q. B. D. 258 ; 54 L. .T. Q. B. 3S5 : Snow v. Whitehead, 27 Ch. 
 D. 588 ; 53 L. J. Ch. 885 : Fvans v. M., S. d; L. Ry., 36 Ch. D. 626 ; 57 
 L. J. Ch. 153. Aud a man is not even justified in passing on to his 
 neighbour, for the protection of his own property, water, which has, by no 
 act of his own, accumulated on his kind : Whalley v. L. <£■ 1'. By. Co., 13 
 q. B. D. 131 ; 53 L. J. Q. B. 285. But he is not bound to keep his thistles 
 from flying abroad, as they are the natural growth of tlie soil : Giles v. 
 Waller, 24 Q. B. D. 656 ; 59 L. J. Q. li. 416. See as to the limitations 
 upon this doctrine in case of vis major, jVichols v. 3farslund, 2 Ex. D. 1 • 
 46 L. J. Ex. 174 ; or, when the act is done under a common law or statutory 
 obligation, Madras Ry. Co. v. Zemindar of Carvait-nuqejer, L. R. 11 I. A. 
 364 : Dixon v. Met.^Bd. of Works, 7 Q. B. D. 418 ; 50 L. J. Q. B. 702 '; 
 or for the common lienefit of those who are injuriously aSected by it, Carstairs 
 V. Taylor, L. R. 6 Ex. 217 ; 40 L. J. Ex. 129 : Anderson v. Ojipenheimer, 
 5 Q. r>. D. 602 ; 49 L. .J. Q. B. 70S ; or under circumstances which raise an 
 ira) licatiou that the plain till' has accepted and acquiesced in the risk, Ross v 
 Fidden, L. R. 7 Q. B. 661 ; 41 L. J. Q. B. 270.
 
 REMOTENESS OF DAMAGE. 05 
 
 in his way a smith in shoeing doth prick his horse, and so by 
 reason of this the money is not paid ; this being the servant's 
 horse, he shall have an action upon the case for pricking of 
 his horse ; and the master also shall have his action upon the 
 case for the specific wrong which he has sustained by non- 
 payment of his money, occasioned by this {g). This case is 
 cited by Parke, B. (Ii), with the remark that, "that cause of 
 action is certainly rather remote." I conceive that such damage 
 could not be allowed for in the present day, even though the 
 master were owner of the horse as well as the money. 
 
 Damage will obviously be too remote when it is caused, Damnge remote 
 wholly or principally, by the act of the plaintiff himself ; it by jja^ntTtTs 
 cannot then be regarded as the necessary result of the dc- own act. 
 fendant's misconduct. Hence, where the captain of a ship had 
 wrongfully imprisoned the plaintiff", and some time after his 
 release, on touching land, the plaintiff changed into another 
 ship, it was decided that he could not recover as damages the 
 costs so incurred. Lord Ellenborough said, the special damage 
 should be closely connected with the trespass which was the 
 foundation of the action. Here the imprisonment was not the 
 causa proxima of the trans-shipment. The latter was remote 
 in point of time, and the plaintiff was not driven to it to 
 redeem himself from any great peril or grievance (/). A more 
 recent case stands on the same principle. The plaintiff had 
 taken a passage to Australia in the defendant's vessel, but was 
 not allowed to sail on account of a mistaken belief that he had 
 not paid his entire fare. The error was found out immediately, 
 and he was offered a passage in another vessel which sailed a 
 week after the first. Instead of going by it he i-emained iu 
 England till December to sue the defendant. It was held that 
 the expenses of his keep till trial could not be allowed as 
 damages, since he might have gone long ago if he had wished ; 
 they might, however, be allowed as costs, if his evidence was 
 necessary, and it was tit that he should have been kept as a 
 Avitness [h-]. So if a tenant neglects to make repairs, which he 
 is bound to execute, because his landlord refuses to furnish 
 
 (.7) Evcrard v. Hopkins, 2 Bulst. 332. 
 
 (h) 6 Ex. 764. 
 
 ((■) Boyce v. Bayl/ffe, 1 Camp. 58. 
 
 (k) Ansett V. Marshall, 22 L. .T. Q. B. 118 ; 1 B. C. C. 147, S. C, 
 
 M.D. F
 
 (j6 
 
 GENERAL PRINCIPLES OF DAMAGE. 
 
 materials which he is bound to supply, he cannot hold his land- 
 lord liable for the damage that may be caused by bad weather. 
 His proper course is to make the repairs, and charge for the 
 materials (/). And if goods are delayed by a carrier, he will 
 not be responsible for damages, which would not have happened, 
 if the goods had not been improperly packed, or sent off in an 
 unfit condition (m). 
 
 Upon the same principle a passenger who was removed from 
 a railway carriage by the servants of the railway company 
 under circumstances which did not justify the removal, was 
 held not entitled to recover the value of a pair of race-glasses 
 which he negligently left in the carriage and which were 
 lost (;i). And the owners of a ship which had been run into by 
 another ship, though entitled to recover for damage which 
 was the immediate consequence of the collision, were held 
 not entitled to recover for damage which resulted from the 
 master's refusing assistance offered to him, and failing to 
 use ordinary skill in attempting to save his ship after the 
 collision (o). 
 
 This rule is frequently brought to bear in actions on the case 
 
 for negligence where the question is, Avhether the injury was so 
 
 completely the result of the defendant's act as to support the 
 
 declaration (j;). Where A. placed lime rubbish in the highway, 
 
 which blowing into the face of B.'s horse frightened it, so that 
 
 it nearly dashed against a passing waggon, and in his efforts to 
 
 avoid it B. unskilfully drove against another heap of rubbish, 
 
 and was overset and hurt, it was held that he could not recover 
 
 against A. (5). But the rule has been laid down and repeatedly 
 
 recognized, that although there may have been negligence on 
 
 Where plaintiff the part of tlie plaintiff, yet unless he might, by the exercise of 
 
 though himself Ordinary care, have avoided the consequence of the defendant's 
 
 in fault. negligence, he is entitled to recover ; if by ordinary care he 
 
 Cas:os of contri 
 butory negli- 
 gence. 
 
 (l) Tucker V. Linr/cr, 21 Ch. D. 18. 
 
 (m) Baldwin v. L. 0. & D. Rij. Co. , 9 Q. B. D. 582. 
 
 [n) Glover v. L. <L- S. W. Ry. Co., L. K. 3 Q. B. 25 ; 37 L. J. Q. B. 
 57. See al.so Hill v. Balls, 2 H. & N. 299 ; 27 L. J. Ex. 45. 
 
 (o) The Flyinrj F<sh, 34 L. J. Adm. 113, in the Privy Council. 
 
 \p) Butterjldd v. Forrester, 11 East, 60 : Ilolden v. Liverpool Gas Co., 
 3 C. B. 1 : Gen. Steam Nav. Co. v. Mann, 14 C. B. 127 : Cotton v. Wood 
 8 C. B. N. S. 568 ; 29 L. J. C. P. 333 : Martin v. G. N. Ry., 16 C. B. 
 179. 
 
 {q) Floiver v. Adam, 2 Taunt. 314.
 
 EEMOTENESS OF DAMAGE. 
 
 ()7 
 
 might have avoided them, he is the author of his own 
 wrong (r). 
 
 The Utw upon this point has been recently affirmed in the Rule laid down 
 House of Lords as consisting of the two following propositions : J^'f Lords!"''^*^ 
 " The first is a general one, to this etfect, that the plaintiff in 
 an action for negHgence cannot succeed if it is found by the 
 jury that he has himself been guilty of any negligence or want 
 of ordinary care which contributed to cause the accident. Bub 
 there is anothei- proposition equally well established, and it is 
 a qualification upon the first ; namely, that though the plaintiff 
 may have been guilty of negligence, and although that negli- 
 o-ence may, in fact, have contributed to the accident, yet if 
 the defendant could, in the result, by the exercise of ordinary 
 care and diligence, have avoided the mischief which happened, 
 the plaintiff's negligence will not excuse him" (.s-). Hence, 
 where the immediate cause of the accident is the defendant's 
 fault, so that without it the accident could not have happened 
 fit all, it is no answer that only for the plaintiff's negligence in 
 something collateral to the immediate cause of the injury, it or 
 part of it might have been avoided. For instance, wliere two 
 omnibuses were racing, and one struck against the other, it 
 appeared that if the omnibus in which plaintiff was riding had 
 been driving slower, it might have been pulled up after the 
 ■collision, and the accident prevented (t). And so where the 
 injury to plaintiff was caused by a steamboat collision, in W'hicli 
 ithe plaintiff was hurt by the falling of an anchor in his own 
 
 (r) Bridqes v. G. June. Ry., 3 M. & W. 244, 248 : Daries v. Mann, 10 
 :M. & W. 546 : Ellis v. L. <£• -S'. IV. R;/. Co.. 2 H. & N. 424 ; 26 L. J. Ex. 
 :349- Sinr/IetonY. WilUaimon, 7 H. & N. 410; 31 L. J. Ex. 17 : Thompson 
 V .V. £■. R'/. Co., 2 B. & S. 106 ; 30 L. J. Q. B. 67 ; affirmed, 2 B. & S. 
 119 ; 31 L.' J. Q. B. 194 : Skelton v. L. d: N. JF. Ry. Co., L. R. 2 C. P. 
 631 ; 36 L. J. C. P. 249 : Smith v. St. Lawrence, L. R. 5 P. C. 308 : Real 
 V. Marchais, L. R. 5 P. C. 316. 
 
 (s) Radley v. L. <k N. IF. Ry. Co., 1 App. Cas. 754, 759 : DaUin W. .fc 
 W. Rij. Co. V. Slattenj, 3 App. Cas. 1155 : Spciyht v. Tedcastle, 6 App. 
 Cas. 217 : Bavcy v. L. cL- .S'. W. Ri). Co., 11 Q. B. D. 213 ; 12 Q. B. D 70 : 
 The Enylishman, 3 P. D. 18 : By well Castle, 4 P. D. 219 : The Arklow, 9 
 App. Cas. 136. See as to the proper mode of directing the jury in cases 
 where negligence is set up, Metrop. Ry. Co. v. Jackson, 3 App. Gas. Iy3 ; 
 47 L. J. C. P. 303 : Wakclin v. L. d: S. W. Ry. Co., 12 App. Ca. 41 ; 56 L. J. 
 213 229 
 
 {t) Rirjby V. Hewitt, 5 Ex. 240. See Harris v. Mohbs, 3 Ex. D. 268, 
 where the defendant was held liable for a negligent act which frightened a 
 vicious mare : Wilkins v. Day, 12 Q. B. D. 110. 
 
 F 2
 
 68 
 
 GENERAL PKINCIPLES OF DAMAGE. 
 
 Contviliulory 
 ueifliLrence. 
 
 Cases in wliieli 
 plaintiff' is a 
 tiesiiasser. 
 
 vessel : held, that even if it had been sho^Yn that the anchor 
 had been negligently stowed, and that the plaintiff ought not 
 to have been in that part of the vessel, (which, how^ever, the 
 jury negatived,) this would have been no answer : that a man 
 who is guilty of a Avrong, and thereby produces injury to 
 another, has no right to say, " part of that mischief would not 
 have arisen if you yourself had not been guilty of some negli- 
 gence," and that where the negligence of the party injured did 
 not in any degree contribute to the immediate cause of the 
 accident, such negligence ought not to be setup as an answer (7/). 
 In both the last-named cases, Pollock, C.B., expressed a strong- 
 doubt whether a man is responsible for ah the consequences, 
 that may under any circumstances arise, in respect of mischief 
 which by no possibility could he have foreseen, and which no 
 reasonable person could be called on to have anticipated. He 
 intimated that the rule was that a man is expected to guard 
 against all reasonable consequences. As an illustration both of 
 the principle of these cases, and of the limitation suggested by 
 the Lord Chief Baron, may be mentioned a case in which it 
 was held that a person making an nnfenced excavation on his- 
 own land, near a public highway, Avas responsible for any injury 
 caused by falling into it, though the person injured was in 
 fact a trespasser (,/■). But there the excavation Avas so near 
 the road as to be dangerous to persons walking along it, who 
 might stray from the path even while exercising ordinary 
 caution. The injury was one which might have been antici- 
 pated. But a man would not be answerable for the result of 
 digging a hole in a field hv removed from any path, and where 
 he could not have contemplated that any one Avould come. 
 The test is Avhether the excavation is substantially adjoining the 
 highway (y). 
 
 There Avould be a strong analogy between such a case and 
 
 (") Greenland v. Cliaplin, 5 Ex. 243. See also Tvffy. Warman, 2 C. B 
 N. S. 740 ; 'J6 L. J. G. P. 263, affirmed in Ex. Cli. 5 C. B. N. S. .573 ; 27 
 L. J. C. P. 322 : Doioell v. Steam Navigation Co., 5 E. & B. 195 ; 26 L J 
 Q. B. .59. 
 
 (x) Barnes v. Ward, 9 C. B. 392. See, too, John v. Bacon, L. R. 5 C. P 
 437 ; 39 L. J. C. P. 365. 
 
 (y) Jfardcastle v. S. Yorkshire Ry. Co., 4 H. & N. 67 ; 28 L. J. Ex. 139 : 
 Hounsell v. Smyth, 7 C. B. N. S. 731 ; 29 L. J. C. P. 203 : Bink.'i v. ;S' 
 Yorkshire By. Co., 3 B. & S. 244 ; 32 L. J. Q. B. 26 : Ilurd v. Taylor 
 14 Q. B. D. 918 ; 54 L. J. Q. B. 310.
 
 REMOTENESS OF DAMAGE. C9 
 
 one subsequently decided under different circumstanc3S. The 
 defendant had contracted to carry plaintiff's goods, and the 
 plaintiff, by consent of the defendant's carman, got into the 
 cart, which broke down. The plaintiff was held not to be 
 entitled to recover for the personal damage. The carman had 
 no authority to allow her into the cart, where she was a mere 
 trespasser (2). There is a somewhat similar case in which a 
 contrary decision was arrived at. A little child clambered into Contributoiy 
 the defendant's cart, while left unattended, and fell out and negligence ap- 
 
 ' ' . phes to uiiaut 
 
 was hurt, the horse being moved on. The action was held to plaintiffs, 
 be maintainable [a). The Court of Exchequer in the case cited 
 above attempted to distinguish L//nch v. Nurdin on the ground 
 of the tender years of the child, which made her not the sole 
 defaulter. Considerable discredit, however, was thrown upon 
 the decision, esiDCcially by Alderson, B. {b). And it is now- 
 settled that the doctrine of contributory negligence applies to 
 infant plaintiffs (c). 
 
 There is one case which seems contrary to the doctrine laid Where botb 
 down in Rkjhy v. Heicltt and Gremlcmd v. C/iapIin, viz., that li^J^l^_ '"^ 
 a party is entitled to recover for the whole result of defendant's 
 negligence, though in part attributable to himself Where a 
 barge was sunk by the swell of a steamer, and the jury gave 
 only a fourth part of the damage actually sustained, alleging 
 as their reason that the blame was not attributable to the 
 defendant alone, and that the barge was not properly trimmed ; 
 the verdict was upheld by the Court (d). But it will be ob- 
 served that in that case the motion was not by the plaintiff 
 for a new trial on account of the smallness of the damages, 
 but by the defendant, on the ground that their finding 
 amounted to a ^■erdict in his favour, which on the authority of 
 the preceding cases it clearly did not. It appears, too, in the 
 judgments in that case, to have been assumed by the court that 
 
 (2) Lyr/n V. Ncwhold, 9 Ex. 302 ; 23 L. J. Ex. 108. 
 (a'l L)/nch v. Nurdin, 1 Q. B. 29. 
 {h) See his remark, 23 L. J. Ex. 110. 
 
 (c) Singleton v. E. C. Rij. Co., 7 C. B. N. S. 287 : Ahhott v. MacFie, and 
 Huqhes V. MacFic, 2 H. & C. 744 ; 33 L. J. Ex. 177 : Mangan v. Atherton, 
 L. R. 1 Ex 239 ; 35 L. J. Ex. 161. See, however, as to this last case, per 
 Curiam, in Clark v. Chambers, 3 Q. B. D., at p. 338 ; 47 L. J. Q. B. 427. 
 
 (d) Smith V. Dohson, 3 M. & G. 59.
 
 70 
 
 GENERAL PRINCIPLES OF DAMAGE. 
 
 Plaintiff's con- 
 duct judged by 
 apparent ne- 
 cessity fcr 
 liis act. 
 
 Apimrcnt 
 neces.sity for 
 plaintiff's act. 
 
 Contriljutoiy 
 negligence of 
 plaintiff's 
 servant, 
 
 the jury were not strictly justified in reducing the damages on 
 the ground alleged by them (c). 
 
 In applying the doctrine of contributory negligence, it must 
 always be remembered that the conduct of the complainant 
 must be judged of as the facts appeared to him, not as they 
 afterwards turned out. Where, through the breaking of a 
 defective rein, the horses of defendant's stage coach ran away, 
 and the plaintiff jumped off and was injured, it was held that 
 he could recover damages, though" the coach was not over- 
 turned, and he would have been uninjured if he had sat still. 
 Lord Ellenborough said that it was sufficient that he was placed 
 by the misconduct of the defendant in such a situation as 
 obliged him to adopt the alternative of a dangerous leap, or to 
 remain at certain peril (/). But a man is not justified in 
 encountering a great and certain danger, in order to save 
 himself a comparatively trifling inconvenience. For instance, 
 where a passenger fell out of a train in trying to shut a door, 
 which flew open, and it appeared that there was room in the 
 carriage for him to sit away I'rom the door, and that the 
 train would have stopped at a station in a few minutes, it 
 was held that the accident was not the natural and necessary 
 result of the company's negligence (g). It would of course have 
 been otherwise if the accident had happened while he was 
 doing an act which would not have been dangerous but for 
 some circumstances which he could not have foreseen (A). 
 
 Where the person who contributes by his negligence to the 
 injury is not the complainant, but his servant or agent, the 
 former is of course unable to recover. A gentleman whose 
 drunken coachman brings about an accident which he might 
 have avoided, could not himself recover {i). And it is the 
 same where the complainant is absolutely under the control of 
 a third person, whose negligence contributes to the injury. As, 
 for instance, a baby in its nurse's arms, or a child under the 
 
 (c) See Eaisin v. Mitchell, 9 C. & P. 613, to which the same remarks will 
 apply. 
 
 (/) Jones V. Boi/re, 1 Stark. 493. See per Martin, P., L. B. 1 Ex. 186 : 
 and The Industrie,^. R. 3 A. & E. 303 ; 4(J L. J. A. 26. 
 
 if/) Adams V. L. d- Y. Jii;. Co., L. R. 4 C. P. 739 ; 38 L. J. C. P. 277. 
 See the remarks of Bramwell, L. J. , in Lux v. Corporation of Darlington, 5 
 Ex. D., at p. 3.5. 
 
 (/i) Gee V. Metropolitan Ey. Co., L. R. 8 Q. B. 161 ; 42 L. J. Q. B. 105. 
 
 (i) See per Lord Esher, M.R., 12 P. D., p. 61.
 
 REMOTENESS OF DAMAGE. 71 
 
 care of a grown-up person (Ic). For it is impossible to separate 
 the acts of two persons who are both governed by a single will. 
 But a good deal of conflict has arisen as to whether this or of person 
 principle should be applied in the case of adults who are in a ^^ '^'j^pp °^ 
 public conveyance which is managed by persons who are not conveyaacc. 
 nnder their control, or in any sense their servants or agents. 
 In Thorogood v, Bryan (/), whore an accident was caused partly Thoroifood v. 
 by the driver of one omnibus, but to a great extent also by the •^^.''■«"- 
 driver of another, in which the person injured was a passenger, 
 it was held that a passenger in a public conveyance is so far 
 identified with the driver of that conveyance, that the negli- 
 gence of the driver is his negligence, and that he cannot recover 
 where the driver himself or his master could not have done so. 
 This decision was for nearly forty years the subject of un- 
 favourable comment, and of hesitating approval by text writers 
 and judges, and was at last formally over-ruled by the highest 
 Courts of Appeal (m). A colhsion occurred between two ships, 
 the Bernina and the Bushire, through negligence equally 
 attributable to those who were in charge of each. A passenger 
 and one of the crew on board the Bushire were killed, neither 
 being personally to blame. Actions under Lord Campbell's 
 Act (n), were brought by their representatives against the 
 owners of the Bernina. In the original Court the actions were 
 dismissed on the authority of Tliorogood v. Bnjan, which was 
 directly in point. In the Court of Appeal that case was 
 held to be bad law. All the judges were of opinion, that the 
 assertion that an adult journeying in a conveyance was for any 
 legal purpose identified witli the driver of that conveyance, 
 unless that driver was his own servant or agent, was either un- 
 intelligible or untrue {o). A man who has been injured by 
 the negligence of another is entitled to sue him, unless he has 
 conduced to the injury either by his own fault, or by the fault 
 of somebody towards whom he stands in the relation of 
 
 {h) Waite V. N. E. Ry. Co., E. B. & E. 719; 27 L. J. Q. B. 417; 
 affirmed E. B. & E. 728 ; 28 L. J. Q. B. 258 ; approved 12 P. D., pp. 71, 
 91 ; 13 App. Ca., p. 19. 
 
 {I) S C. B. 115. 
 
 (m) The Bernina, 12 P. D. 58 ; 13 App. Ca. 1 ; 57 L. J. P. D. k A. 65. 
 
 (n) 9 & 10 Vict. c. 93. 
 
 (o) The ruling in Thorogood v. Bryan was supported by Lord Bramwell on 
 a different ground from that of assumed legal identification with the driver. 
 See L. R. 10 Ex. p. 51 ; 44 L. J. Ex. p. 89 ; 13 App. Ca. p. 11.
 
 72 GENERAL PRINCIPLES OF DAMAGE. 
 
 principal or master. The fact that a stranger has contributed 
 to the accident by an independent act of negligence of his own, 
 may give rise to a further remedy against him, but cannot 
 relieve the primary offender from the consequences of his own 
 default. 
 Where defen- Even before the case of the Bernina it had been settled, that 
 (lant's r.egli- -wliere the defendan t's negligence is the primary aud substantial 
 
 irciice is the ^^^ 
 
 primary and (•aus;,' n[ tlv-: uamagf Sustained l)V the i>laiutiti. he will be 
 substantial r esjiuusiblc for the whole damage, ihouu-h it mav have been 
 increased by the wrongful conduct of a third person, or though 
 there may have been negligence on the part of such third 
 person, which, jointly with the defendant's negligence, has 
 caused the damage (p). And similarly, when the defendant's 
 lireach of conduct has produced a dangerous state of things 
 
 which ends in an accident, the fact that the accident itself was 
 brought on by the negligence of another person, even though 
 that person was the plaintiff or his servant, will be no answer 
 to the action. For without the breach of contract the negli- 
 gence would have led to no harm. Accordingly, where the 
 defendants had contracted to supply gas fittings in the 
 plaintiff's house, and the fittings were so defective that the gas 
 escaped, and a servant negligently brought in a lighted candle, 
 on which an explosion took place ; it was held that the defen- 
 dants were liable, whether the person who introduced the 
 candle was the plaintiff's servant or not (q). 
 Volenti non The rule that a man cannot claim damages for harm resulting 
 
 fit injuria. fj-Qi^ j^jg q^-q conduct is further illustrated by cases which fall 
 within the maxim, volenti non fit injuria. Cases of this sort differ 
 from cases of contributory negligence in that they do not assume 
 any carelessness on the part of the plaintiff. If he has under- 
 taken to perform a dangerous feat, or to exercise a dangerous 
 employment, knowing its risks, and consenting to take his 
 chance of escaping them, he cannot afterwards claim damages 
 from the person who is a party to his undertaking if the chances 
 turn against him. A horsebreaker, a rope-dancer or a steeple- 
 
 (p) Collins V. Middle Level Commissioners, L. E. 4 C. P. 279 ; 38 L. J. 
 C. ?. 236 : Harrison v. G. N. Ihj. Co., 3 H. & C. 231 ; 33 L. J. Ex. 266.' 
 See Bmith v. Dobson, 3 M. & G. 59. 
 
 (r/) Burrmcs v. March Gas Co.. L. R. .5 Ex. 67 ; 39 L. J. Ex. 33 : affirmed 
 L. K. 7 Et. 96 ; 41 L. J. Ex. 46.
 
 REMOTENESS OF DAMAGE. 
 
 jack knows that he has au appreciable chance of breaking his 
 neck every time he discharges his duties. Part of his risk 
 arises from the probabihtv that, sooner or later, some one who 
 is co-operating with him will neglect his duty, or lose his nerve 
 when an emergency occurs. So long as the person with whom 
 he contracts does not add to his risk by neglecting anything 
 which it is his duty to do, or doing anything which it is his 
 duty not to do, he is not responsible for any damage which 
 may result from the dangers of the employment. That damage 
 is merely the reduction into certainty of the contemplated 
 risk (/•)• Whether the plaintiff did take the risk upon himself 
 is a question of fact for the jury in each case. "Where the risk 
 is inseparable from the employment, as in the cases above 
 suggested, only one conclusion can be arrived at. But where 
 the occupation is not of itself dangerous, or involves only some 
 specific danger, it cannot be assumed without express and 
 strong proof, that the plaintiff has undertaken to run the risk 
 arising from some new ingredient of danger introduced into 
 the case, or from the dangerous or incautious acts of others, 
 Avho are carrying on some independent work within the sphere 
 of the plaintiff's operations (s). Whether the mere fact of 
 continuing to work in an employment which has grown more 
 dangerous than it was expected to be, in order to avoid 
 dismissal, is itself sufficient evidence of a consent to bear its 
 risks, is a point upon which much difference of opinion has 
 been expressed, and which can hardly be said to be decided (t). 
 The maxim volenti non fit injuria has no bearing upon the 
 case of a person, who, while trying to perform one of the 
 ordinary acts of life, such as entering a railway station, or 
 crossing a street, finds that he has to encounter some un- 
 expected danger placed in his way by the wrongful act of the 
 
 73 
 
 (r) Woodley v. Met. Dist. Railway, 2 Ex. D. 384 : TJiomaa v. Quarter- 
 maine, 18 Q. B. D. 685 ; 56 L. J. Q. 1?. 349 : Memhery v. Gt. Western Ry. 
 Co., 14 App. Ca. 179; 58 L. J. Q. B. 563. A defendant is always liable 
 for neglect of a statutory obligation. Badddey v. Earl Granville, 19 Q. B. 
 D. 423 ; 56 L. J. Q. B. 501. 
 
 (s) Smith Y. Baker, [1S91] A. C. 325 : Th-ussell v. Handyside, 20 Q. B. 
 B. 359 ; 57 L. J. Q. B. 347. 
 
 (0 Yarmouth v. France, 19 Q. B. D. 647 ; 57 L. J. Q. B. 7 : per Lord 
 Bramwell, 14 App. Ca. p. 187 : Lord Herschell, ihid., 192 : per Lord Bram- 
 well, [1&91] A. C, p. 344 : Lord Watson, ihid., p. 357 : Lord Herschell, ibid. 
 p. 364 : Lord llorris, ibid., p. 370.
 
 74 
 
 GENERAL PRINCIPLES OF DAMAGE. 
 
 Damage result- 
 ing fioin i)laiii- 
 tifl's prema- 
 ture act. 
 
 Damage too 
 remote -wlien 
 the wrongful 
 act of a third 
 party. 
 
 clofeiidant. If after using all due care and caution he suffers 
 any liarra, the defendant is liable. And it makes no difference 
 that the feat might have been accomplished in some way which 
 he did not know, and failed to discover («.). Here the risk is 
 not voluntarily accepted by the injured party, but is forced 
 upon him against his will by the wrongful act of the defendant. 
 
 The last instance that I shall give of damage caused by the 
 plaintiff's own act is to be found in cases where he has in- 
 curred premature expense, in reliance upon the defendant's 
 performing his contract. This subject will be noticed again in 
 treating of sales of land. One illustration will be sufficient at 
 present. It was an action on a covenant of the 17th Sept. to 
 demise a ferry, and to make a good title within fourteen days 
 from the date of the agreement. The plaintiff was to pay 
 3,150/. on the 21)th Nov., if title could be made out. No title 
 could be established. The plaintiff was promoter of a company 
 provisionally registered for the purpose of working the ferry. 
 It was held that no damages could be given for the expense of 
 raising the 3,150/., nor the loss of interest upon it, nor for the 
 costs of preparing the company's deed of settlement, and pro- 
 curing provisional registration, because these were damages 
 incurred by the plaintiff's own imprudence in beginning to act 
 before he had ascertained whether the plaintiff could or could 
 not complete his contract (^). 
 
 Another case in which damage will be too remote arises 
 where it is the wrongful act of a third party, such as could not 
 naturally be contemplated as likely to spring from the defen- 
 dant's conduct (?/). A wider doctrine than this was formerly 
 
 (u) Osborne v. L. d; N. W. Rij. Co., 21 Q. B. D. 220 ; 57 L. J. Q. B. 
 618 : and -per Lord Halsbury, L. C. [1891] A. C. p. 337. 
 
 (aj) Ilandip v. Padicick, 5 Ex. 685. 
 
 {y) A simple illustration of this rule will he found in the case put by James. 
 L. J., of the bailee of a key carelessly allowing it to fall into the possession of 
 a man who commits a burglary, and by means of the key opens a box con- 
 taining valuable property. Re United Strvice Co., Johnston's Claim, L. II. 
 6 Ch. at p. 218 ; 40 L. J. Ch. at p. 28S. Other recent illustrations will be 
 found in Blafjrave v. Bristol Water Works Co., 1 H. & N. 369 ; 26 L. J. 
 Ex. 57 : CahiLl v. Dawson, 3 C. B. N. S. 106 ; 26 L. J. C. P. 253 : Collins 
 V. Cave, 4 H. & N. 225 ; 28 L. J. Ex. 204 ; affirmed in Ex. Ch. 6 H. & N. 
 131 ; 30 L. J. Ex. 55 : Sully v. Duranty, 3 H. & G. 270 ; 33 L. J. Ex. 
 319. The defendant will necessarily be liable where the act of the third 
 party is not wrongful, and is the natural result of his own illegal act. Cla7-k 
 V. Chambers, 3 Q. B. D. 327 ; 47 L. J. Q. B. 427.
 
 REMOTENESS OF DAMAGE. 75 
 
 maintained, viz., that where the act of the defendant caused a 
 wrongful act of another, for which the plaintiff would have a 
 right to sue such last-named party, he could not have a right 
 of action against the original wrong-doer also. This doctrine 
 rested upon the case of Vicars v. Wilcoclcs {z), and a dictum of 
 Lord Eklon's in Morris v. Lcinydale {ct). Carried to this 
 extent, however, it was much shaken by Mr. Starkie in his 
 work on Libel and Slander (^), and by the Court of Exchequer 
 in Green v. Button {c), and is now finally overruled by the 
 case of Lumley v. Gije (d). That was an action by the AVrongfd act 
 manager of a theatre against the manager of a rival house for o'" t'^^d person. 
 inducing a singer to break her engagement with him. Of 
 course he had a remedy against the singer herself upon her 
 agreement, and an attempt was made to frustrate the action 
 by means of the doctrine above alluded to. The Court of 
 Queen's Bench, however, decided against it, and stated the 
 true import of the case of Vicars v. Wilcoclcs, in accordance F/cars v. 
 with the explanation previously given by Mr. Smith (e). The ^^'^^''°'^^"*- 
 facts of that much-discussed case were as follows. The defen- 
 dant, in conversation with various persons, hut not with either 
 A. or B., accused the plaintiff of maliciously cutting his cord. 
 This charge was repeated both to A. and B. The plaintiff was 
 at the time in the service of A., who in consequence of what 
 he heard, wrongfully dismissed the plaintiff before his time 
 was out. He then applied to B. for employment, who refused, 
 "both on account of what he had heard, and because his former 
 master had discharged him for the offence imputed to him. 
 Upon this evidence the plaintiff was nonsuited. A rule to set 
 aside the nonsuit was refused. Lord Ellenborough said that 
 the special damage must be the legal and natural consequence 
 of the words spoken, otherwise it did not sustain the declara- 
 tion : and here it was an illegal consequence ; a mere wrong- 
 ful act of the master, for which the defendant was no more 
 
 {z) 8 East, 1 ; 2 Sm. L. C. 577, 9th ed. 
 
 (a) 2 B. & P. 284. 
 
 (b) 3id ed. 326. 
 
 (c) 2 C. M. & K. 707. 
 
 id) 2 E. & B. 216 ; 22 L. J. Q. B. 463, followed and affirmed, Bourn v. 
 Hall, 6 Q. B. D. 333 : Temperton v. mis^idl, [1&93] 1 Q. B. 715 ; 62 L. J. 
 Q. B. 300. 
 
 (e) 2 Sm. L. C. 588, 9th ed.
 
 7G 
 
 GENEnAL PRINCIPLES OF DAMAGE. 
 
 Lial)ility of 
 )ierson who 
 utters a 
 slander for its 
 repetition, 
 
 when aiitho- 
 rizcil liy iiiin- 
 self, 
 
 or uttered to 
 one whose 
 duty it is to 
 report it ; 
 
 answerable tlian if, in consequence of the words, other persons 
 h;id afterwards assembled and seized the plaintiff and thrown 
 him into a horse-pond, by way of punishment for his supposed 
 transurcssion. As to the second point, it was plain that B.'s 
 refusal to employ the plaintiff proceeded rather from his dis- 
 missal by A. tlian from the defendant's words. It is evident 
 that this case may well stand upon two p-rouuds : — Istly. That 
 the dismissal of the plaintiff by A. was not the natural or 
 necessary consequence of the defendant's language, but a mere 
 act of spontaneous caprice ; 2ndly. That the result did not, in 
 fact, spring fi'om the defendant's having used the words, but 
 from the repetition by those who heard them(/). 
 
 The latter ground raises a question which has been much 
 discussed, whether a person who utters a slander can ever be 
 liable for the results which follow, not from what he has said, 
 but from the repetition by another of what he has said. In 
 other words, whether such a repetition is such a natural and 
 necessary consequence of the original slander, as to make the 
 slanderer liable for any evil that may ensue upon it. 
 
 It is clear that he will be so liable if he has himself authorized 
 or suggested the repetition of the statement. As, for instance, 
 where the defendant orally communicated to a newspaper 
 reporter a defamatory story respecting the plaintiff, which he 
 said would make a good case for a newspaper. And so where 
 certain poor-law guardians, while discussing a case which was 
 before them, said that they were glad to see reporters present, 
 and hoped that they would take notice of the case {g). He 
 will also be liable if he utters the slander before a person whose 
 official position in respect to the person slandered renders it his 
 duty to report upon the charges made, and to have them 
 
 (/) See further the criticisms upon this case in Lynch v. Knight, 9 H. of L. 
 Ca. 577; 2 Sirith's L. C. .^83, 'Jth ed. Lord Wensleydale, alluding to the 
 ud ahmrdum case put by Lord Plllenborough of the plaintiff being thrown 
 into a liorse-pond, said that he could conceive circumstances under which that 
 iiiiglit be the natural result of an accusation of the plaintiti' made to an ex- 
 cited 7nob. It frequently followed in Paris during the prevalence of the spy 
 mania, substituting the Seine for a horse-pond. 
 
 (g) AdaniK v. A'elli/, Ky. & Alood. 157 : I'nrlces v. Prescott, L. R. 4 Ex. 
 169 ; 38 L. J. Ex. 105 : Whitney v. Moiijnurd, 24 Q. V>. I). 630 ; 50 L. J. 
 (2. B. 324 : where it was held to be a relevant averment, that the defendant 
 knew that the statement made by him in one newspaper, would be rc-i>ub- 
 lislied in others.
 
 EEMOTEXESS OF DAMAGE. 77 
 
 inquired into (//). In cither of these cases, any result that 
 follows must or ouo-ht to have been contemplated by the 
 originators of the libel. It is like the case of the man who threw 
 the squib into a crowd, of whom one after the other, in self- 
 defence, threw it off themselves till it lit upon and injured the 
 plaintiff (/). But it is different where the repetition of the not when 
 words is the independent act of the hearer, -who was neither vXntary. 
 incited nor bound to pass them on. In such a case ic has 
 been held, in the well-known case of Ward v. Weeks, that the 
 injury which follows from the repetition is too remote to be a 
 ground of damage. Such a spontaneous and unauthorized 
 communication connot, it is said, be considered the necessanj 
 consequence of the original uttering of the words. It is the 
 voluntary act of a free agent, over whom the defendant had no 
 control, and for whose acts he was not answerable, that was the 
 immediate cause of the plaintiff's damage (/"). 
 
 An attempt was made to bring a case within the authority of ^ ol"nt:"T 
 
 ■^ ^ ' repetition or 
 
 KendiUon v. Malthu under the following circumstances. Ihe shmder. 
 defendant in presence of the plaintiff's wife uttered abuse of 
 her, accusing her of unchastity. The wife repeated this to her 
 husband, and he in consequence left her. She then sued for 
 the slander, charging the husband's leaving her as special 
 damage. The husband was joined as first planitiff for con- 
 formity. It was contended that it was her duty as wife to 
 repeat the charges against her to her husband. The Court 
 held that there was no such duty, but that it was a mere 
 voluntary act, for which, on the authority of Ward v. Weeks, 
 the defendant could not be held responsible. Wilde, B., said, 
 " If moral obligations or considerations of duty to repeat 
 slanders are to 1)0 the tests, if such arc to be substituted for 
 the authority by the utterer to repeat his words, necessary to 
 render him liable, the question of liability will be involved in 
 inextricable confusion, and it will be difficult to say where the 
 action of slander will stop " {I). 
 
 {h) KendiUon v. M(tUb)f, 1 Car. & M. 403 : Bcrr)/ v. Handlcy, 16 L. T. 
 N. S. 263. 
 
 (i) Scott V. Sluphcrd, 2 W. Bl. 892 ; 1 Sin. L. C. 477, 7tli ed., |)f /• Bowen, 
 L. J., Jlatdifc V. i'm/!S, [1892] 2 Q. B. at p. 530 ; 61 L. J. Q. B. 535. 
 
 (k) Per Tindal, G. J., Ward v. Weeks, 7 Bingli. 211 : Hoi wood v. Zfo^)- 
 kins, Cro. Eliz. 787 : Bree v. Marescaux, 7 Q. B. D. 434. 
 
 (/) Parkins v. Scott, 1 H. & C. 153 ; 31 L. J. Ex. 331.
 
 (iEXEEAL PRINCIPLES OF DAMAGE. 
 
 Voluntary 
 vepetiticn 
 slander. 
 
 of 
 
 Jiidivf/ Y. 
 JSriiith, 
 
 I do uot imagine tliat by these words Wilde, B., meant to 
 throw any discredit on the doctrine of Kendillon v. 3Ialthj, 
 but merely to intimate that the duty to repeat a slander must 
 be clearly made out, and not rested on sentimental considera- 
 tions of honour or morality. The question is, when a person 
 utters an accusation, is he bound to suppose it will be repeated ? 
 He is bound to suppose it, when he suggests its repetition, or 
 makes it to a person wdiose clear official duty it is to take action 
 upon the statement : otherwise not. In the case of Parkins v. 
 Scott, it is plain that the last person who could have been 
 expected to repeat the scandal was the wife, and the last person 
 to whom she could have beeu expected to repeat it was her 
 husband. 
 
 The recent case of Riding v. Smith (ni) seems, at first sight, 
 hardly reconcilable with the dicta in Ward v. Weeks. There 
 the }>laintilt' was a grocer and draper, who was assisted in his 
 business by his wife. The incumbent of the parish was about 
 to read himself in, and on the way to the church the defendant, 
 in presence of three or more persons, used words imputing to 
 the plaintiff's wife the commission of adultery with the incum- 
 bent on the plaintiff's premises. The declaration contained 
 three counts. The first charged the words as being an injury 
 to the plaintiff's credit. The second as being an injury to the 
 wife's credit. The third as being an injury to the plaintiff's 
 trade. The last count alone was brought by the husband in 
 his own right. In the two former husband and wife joined. 
 At the trial the two first counts were struck out. " The action 
 then remained in suljstance not slander, but an action by the 
 plaintiff, a trader, carrying on business, founded on an act done 
 by the defendant, which led to loss of trade and customers by 
 the plaintiff'" (n). Xo evidence was given that any of the 
 persons who heard the statement had ceased to deal with the 
 plaintiff, or that any particular persons had ceased to deal with 
 him, but it was shown that a general falling off of his business 
 had taken place, for which the plaintiff' ^vas unable to account, 
 except as a consequence of the statement. The plaintiff' got a 
 verdict for 40s., which was upheld by the Court. It was 
 
 (m) 1 Kx. D. 91 ; 45 L. J. Ex. 2S1. See as to this case, ruitcUffe v. Evans, 
 [1892] 2 Q. B. at p. 5:j4 ; 61 L. J. Q. Y>. 535. 
 
 (n) Fer Kelly, C. li., 1 Ex. D. 93 ; 45 L. J. Ex. 2S1.
 
 KE MOTE NESS OF DAMAGE. 79 
 
 admitted that the first two counts, being for slander of the Voluntary 
 Avife, could not be maintained without proof of special damage, slander"" " 
 which would have to be established by showing that particular 
 persons had ceased to deal with the plaintiff. But it was held 
 that no such evidence was necessary where the statement was 
 one calculated to injure a shopkeeper in his trade, whether 
 such statement was in itself defamatory, or was merely the as- 
 sertion of a fact, such as that one of his shopmen was suffering 
 from scarlet fever, which would operate to prevent people 
 coming to the shop. So far all was clear enough. But the 
 difficulty upon the authority of Ward v. Weeks arose in this 
 way. It did not appear that the persons who heard the state- 
 ment ever had been, or ceased to be, customers of the plaintiff. 
 Any injury that he suffered must therefore either have arisen 
 from some other cause, or from their unauthorized repetition 
 of what they had heard, and it was argued that for this the 
 defendant could not be answerable. Pollock and Huddleston, 
 BB., expressly maintained the decision in Ward v. Weeks. 
 The former appeared to distinguish it on the ground that in 
 the case before them the loss was the natural result of the 
 words uttered, while in Ward v. Weeks it was not so. But the 
 dictum in Ward v. Weeks seems to go the full length of 
 holding that loss can never be the natural result of words 
 uttered, where it has been caused, not by their being spoken 
 but by their being repeated. Perhaps the distinction may be 
 that pointed out by Martin, B., in JDixon v. Smith (o) : viz., 
 that where the action is not maintainable without proof of 
 special damage, there the suit is really brought for the special 
 damage which is the gist and essence of the action. Therefore 
 the plaintiff must fail, unless he can prove that the particular 
 damage of which he complains was caused by the defendant. 
 This he cannot do, merely by showing that the defendant said 
 something, which somebody else wantonly repeated. But 
 where the words are actionable without special damage, then the 
 defendant's liability exists antecedent to any repetition ; and 
 proof of the damages which followed upon such repetition is 
 merely a mode of assessing a penalty which has been already 
 
 (o) 5 H. & N. 450; 29 L. J. Ex. 125. And see to the same effect bj 
 Bramwell, L. J., in Bree v. 31arescaux, 7 Q. B. D., at p. 437, referring to a 
 decision of Maule, J.
 
 80 GENERAL PRINCIPLES OF DAMAGE. 
 
 incurred. On the other hand, if the dictum in Ward v. WeeJcs 
 is sustained to its full extent, it is difficult to see why a man 
 should be responsible for the consequences following from the 
 repetition of his w^ords, when those consequences are used as 
 measuring- the damages arising- from his wrongful act, though 
 he would not be responsible for tiie very same consequences, if 
 they are used for the purpose of making his act wrongful. In 
 other words, the principle is, that a man is only responsible 
 for the natural consequence of his own acts. Where words 
 spoken are not actionable without special damage, and the only 
 special damage has arisen from their repetition, it is held that 
 the repetition is not a natural consequence of the speaking 
 of the words. Where the words are actionable without special 
 damage, is not the repetition of them equally a non-natural 
 consequence of the speaking ; and if so, why should the 
 defendant be liable to pay for what, ex hypothcsi, he had no 
 right to expect ? 
 Wardx. TTfffo h\ Ridiivj T. Smiili, Kelly, C. B., took a different line from 
 Srl^K ^^'^ learned colleagues. He said (;j) : "I hope the day will 
 come when the principle of Ward v. Weelcs, and that class of 
 cases, shall be brought under the consideration of the Court of 
 last resort, for the purpose of determining whether a man who 
 utters a slander in the presence of others is not responsil)le for 
 all the natural effects which will arise from those persons going 
 about and repeating the slander, though without any express 
 authority on his part." Certainly, if that is natural which is 
 in conformity with human nature, every one who utters a 
 slander may be perfectly sure that it will be repeated. If he 
 wishes to make the repetition certain, he has only to impose a 
 pledge of secrecy on his hearers. 
 Cases -where _ Questions as to remoteness of damage arise in another class 
 an injury \o 15, of cascs, whicli present some analogy to those just discussed. 
 I refer to those cases in which a wrong done to one person 
 affects another who was not a party to the original transaction. 
 If A. breaks his contract with B., or inflicts some harm on B., 
 the result may be most hurtful to C. But C. cannot in general 
 sue A. Not in the former case, because he was not privy to 
 the contract {q). Not in the latter case, because, although 
 
 ip) 1 Ex. D. 94. 
 
 (3) See Dickson v. lieuter's Telegraph Co., 2 C. P. D. 62 ; 46 L. J. C. P.
 
 REMOTENESS OF DAMAGE. 81 
 
 he may have suffered the damnum, it was B. who suffered the 
 
 injuria (r). But there is another class of cases, of which Lcmg- 
 
 ridge v. Levy (s) was the first, where a person commits a 
 
 fraudulent act, with the intention of influeucing the conduct 
 
 of others. A common instance is the case of fraudulent repre- Fraudulent 
 
 ssntations (/). The law in such cases has been laid down as i"epresentatious 
 
 n ,, ^c r\- L 1,1-, acted on by 
 
 follows : " iMrst, every man must be held responsible for the others. 
 consequences of a false representation made by hi in to another, 
 upon which that other acts, and, so acting, is injured or dam- 
 nified ; secondly, every man must be held responsible for the 
 consequences of a false representation made by him to another, 
 upon which a third person acts, and, so acting, is injured or 
 damnified, provided it appear that such false representation 
 was made with the intent that it should be acted upon by such 
 third person, in the manner that occasions the injury or loss. 
 But, thirdly, to bring it within the second principle, the injury 
 must be the immediate and not the remote consequence of the 
 representation thus made " (w). Hence, if such a false repre- 
 sentation is made in order to influence others to act in one 
 particular way, the maker of it cannot be answerable if they 
 act upon it in quite a different way. For instance, the pro- 
 spectus of an intended company is issued in order to invite 
 persons to accept allotments of shares. If it contains fraudu- 
 lent statements or omissions, any allottee or original shareholder, 
 who has been defrauded by it, has a right of action against 
 those who issued the prospectus. The measure of damages in 
 such an action will be the loss actually suffered in consequence 
 of the fraud. If the shares had no value whatever, except that 
 which was given to them by the fraudulent statement, then 
 the entire amount paid for them will be recoverable, though at Fraudulent 
 
 the time of the iiurchase they had an actual price on the representation 
 i J 1 acted on in a 
 
 — ■ way not in- 
 
 197 : Le Lievrc v. Govhl, [1893] 1 Q. B. 491, over-ruling Cann v. Willson, tended. 
 39 Ch. D. 39 ; 57 L. J. Ch". 1034. 
 
 (r) See Simpson v. Thompson, 3 App. Cas. 279, and p. 289. Sea Insurance 
 Co. V. Hodden, 13 Q. B. D. 706 ; .53 L. J. Q. B. 252. 
 
 is) 2 J[. & W. 519 ; 4 M. & W. 337. See the cases collected, 2 Sin. L. C. 
 104, 9th ed., and the case itself discussed in Heaven v. Pender, 11 Q. B. D. 
 503, at pp. 511 and 516. 
 
 (t) As to what representations are fraudulent, see Peek v. Berry, 14 App. 
 Cas. 337 ; 58 L. J. Ch. 864. 
 
 (m) Barrii v. Croskeij, ± Jo. & H. 1, 23 ; approved by Lord Cairns, L. R. 
 6 H. L. 412. See New Sombrero Phosphate (Jo. v. Erlanytr, 5 Ch. D. 73 ; 
 affirmed 3 App. Cas. 1218 ; 48 L. J. Ch. 73. 
 
 M.D. G
 
 GENERAL PRINCIPLES OF DAMAGE. 
 
 Fraudulent 
 representation 
 acted on in a 
 way not in- 
 tended. 
 
 Result to 
 strangers of 
 breach of 
 contract. 
 
 Stock Exchange. If they had some real value, then the 
 measure of damages will be the difference between the price 
 paid for them, and what would have been a fair price under the 
 real circumstances of the company. If the plaintiff had re-sold 
 the shares, the price which he received wonld necessarily be 
 deducted, and would of course be evidence of their actual 
 worth (x). But, as soon as the shares are allotted, the object 
 of the prospectus is over. If persons who have read it, and 
 conceived a high opinion of the company in consequence, go 
 into the market and buy shares, they cannot hold those liable 
 who sent forth the prospectus. In other words, it suggested to 
 the public to do one thing, and the persons who complain of it 
 have done another (//), So if the property of a company is 
 made to api)ear of a fictitious value, for the purpose of stimu- 
 lating a sale of the shares, this would be a fraud upon those 
 who were thereby induced to purchase, but as between those 
 members of the company who were cognisant of the fraud, the 
 statement would not be conclusive as establishing what the real 
 value of the property might be (2). 
 
 Again, if A. breaks his contract ^vith B., C. cannot of course 
 sue him upon the contract for any harm resulting to himself. 
 But he may sue him if he has suffered damage from some 
 wrongful or negligent act, which amounts to a breach of duty 
 towards himself, independently of the contract. For instance, 
 a railway company owes a duty to its passengers, which equally 
 exists whether the passenger who has been injured purchased 
 the ticket or had it purchased for him (a). Here the duty was 
 stated to arise from the defendants' position as a carrier under 
 the custom of the realm. Where there is no such common law 
 obligation, the extent of the liability, and the principle on which 
 it rests, appear not to be quite settled. A gas-fitter, who did 
 his work negligently, was made liable for the damages suffered 
 by a person who was injured by an explosion, but who was a 
 stranger to the contract. Lopes, J., said, " I think the plain- 
 
 (x) Ticycross v. Grant, 2 C. P. D. 469 ; 46 L. J. C. P. 636 : Sullivan v. 
 Mitcalfe, 5 C. P. D. 455 : Davidson v. Tulloch, 3 Macq. H. L. C. 783 : Ark- 
 wrvjht V. Newhold, 49 L. J. Ch. 684. 
 
 (.//) Peehy. Gnrney, L. R. 6 H. L. 377, 410 ; 43 L. J. Cb. 19. 
 
 {£) £x parte Taijlor, 14 Ch. D. 390 ; 49 L. J. Ch. 457. 
 
 (a) Marshall v. Y. N. <£; B. Ry. Co., 11 C. B. 655 ; 21 L. J. C. P. 34 • 
 Foulkcs V. Met. District Ry. Co., 5 C. P. D. 157.
 
 REMOTENESS OF DAMAGE. 83 
 
 tiff's right of action is founded on a duty which I believe Fraudulent 
 
 ,, , . , • • J T -1.1 repieseiitatioii 
 
 attaches in every case where a person is using or deahng with ^^[^^ ^^ ^^^ ,^ 
 a highly dangerous thing, which, unless managed with the "^^ay not in- 
 greatest care, is calculated to cause injury to bystanders. To 
 support such right of action, there need be no privity between 
 the party injured and him by whose breach of duty the injury 
 is caused, nor any fraud, misrepresentation, or concealment ; 
 nor need what is done by the defendant amount to a public 
 nuisance. It is a misfeasance independent of contract" (b). 
 In a later case the defendant, a dockowner, was in the habit 
 of receiving ships for repair, and of supplying the staging 
 necessary for that purpose. The contract was made with the 
 shipowner, and through a defect in the staging a Avoikman 
 employed by a ship-painter was injured. It was held that the 
 defendant was liable for the injuries that he received. Brett, 
 M.R., laid down the general proposition "that whenever one 
 person is by circumstances placed in such a position with re- 
 gard to another, that every one of ordinary sense who did think 
 would at once recognize that if he did not use ordinary care 
 and skill in his conduct with regard to those circumstances, he 
 would cause danger of injury to the person or property of the 
 other, a duty arises to use ordinary care and skill to avoid such 
 danger." Cotton and Bowen, L.JJ., declined to adopt this 
 wide proposition, but rested the defendant's liability upon the 
 ground "that all those who came to the vessels for the purpose 
 of painting, and otherwise repairing them, were there for 
 business in which the dockowner was interested, and must be 
 considered as invited by the dockowner to use the dock and 
 all appliances provided by the dockowner as incident to the 
 use of the dock. To these persons the dockowner was under 
 an obligation to take reasonable care that at the time the 
 appliances provided for immediate use in the dock were 
 provided by him, they were in a fit state to be used (c). 
 
 It frequently happens that one person is forced to incur When costs of 
 
 (b) Parry v. Smith, 4 C. P. D. 325, at p. 327 ; 48 L. J. C. P. 731. 
 
 (c) Heaven v. Pender, 11 Q. B. D. 508, at pp. 509, 515 : Cann r. Will- 
 son, 39 Ch. D. 39 ; 57 L. J. Ch. 1031 : Elli^dt v. ffall, 15 Q. B. D. 315 ; 
 54 L. J. Q. B. 518. If the suit had been by the shipowner, he pould not have 
 recovered for the expense of settling an action against himself by the work- 
 man, as the workman could not have succeeded in such an action. Kiddle v. 
 LovcU, 16 Q. B. D. 605. 
 
 G 2
 
 84 GENERAL TEINCIPLES OF DAMAGE. 
 
 former actions expense in Icoal proceedings in consequence of a breach of 
 are recover- contract, or tortious act of ^another. It is often a matter of 
 considerable nicety to know whether costs so incurred can 
 be recovered as damages against the offending party. The 
 solution of the question depends upon the rules laid down 
 above as to remoteness of the damage ; but I have preferred 
 for greater clearness to discuss the subject separately. 
 DecLsion of the In the first place, it is a genei.il principle that the right to 
 original Court j^ j^yj,(- j^i^vays be Considered as finally settled in the Court 
 where the question is adjudicated on, to which that right is 
 accessory ; so that, if any costs are awarded, nothing beyond 
 the sum taxed, according to the rules of the Court, can be 
 recovered as damages ; or if costs were expressly withheld by 
 an adjudication in the particular case, none would be recover- 
 able by suit in any other Court {d). Accordingly, where A. 
 filed a bill for specific performance, to compel B. to carry out 
 a contract for the sale of land to him, and the bill was 
 dismissed without costs according to the practice in Chancery, 
 because B. could not make out a good title, it was ruled that 
 these costs could not be recovered as damages for breach of 
 contract in an action by A. against B. (e). And similarly, 
 where a judgment was set aside for irregularity, but without 
 costs, and the plaintiff afterwards brought an action for 
 seizing his goods under the judgment, he was not allowed to 
 recover as special damages the costs of setting it aside (/). 
 An actual deci- But for this purpose, it is necessary that there should be an 
 actual adjudication against the plaintifl^'s right to costs. A. 
 having been illegally arrested on mesne process, applied to the 
 Court for his discharge. The rule was referred to a Judge 
 at Chambers, who ordered him to be released, and would 
 have given him the costs of the rule, if he had undertaken 
 not to bring an action. On his refusal, no order was made 
 as to costs. He then brought an action of false imprison- 
 ment, and it was held that he was entitled to recover those 
 
 [d) Hathaway v. Barrow, 1 Campb. 151 : Sinclair v. Eldred, 4 Taunt. 7: 
 Jenkins \. Biddulph, 4 Bingh. 160 : Grace v. Morgan, 2 Bing. N. C. 534 ; 
 overruling Sundback v. TJiomas, 1 Stark. 306 : Doe v. Hare, 2 Dowl. 245 : 
 Si/monds v. Page, 1 C. & J. 29 : Doe v. Filliter, 13 M. & W. 47, 49 ; over- 
 ruling Gould V. Barratt, 2 M. & Rob. 171 : Vockburn v. Edwards, 18 Ch. D. 
 449 : Q^iartz HUl Co. v. Eyre, 11 Q. B. D. 674. 
 
 (e) Maiden v. Fi/son, 11 Q. B. 292. 
 (/) Loton V. Hevereux, 3 B. & Ad. 343. 
 
 sion IS neces 
 saw.
 
 COSTS OF FORMER ACTION. Si 
 
 costs as special damage. The case was distinguished from the 
 last cited ; for there the order had been made absohite without 
 costs : here, the judge had made no adjudication upon the 
 point ((/). 
 
 The reason of this I'ule appears to be that costs are, in Reason for 
 theory, supposed to be a compensation for the expenses justly ' 
 and properly incurred in the action. Therefore, any costs in- 
 curred beyond those allowed must be assumed to have been 
 unnecessary ; and where costs have been refused, it must be* 
 assumed that they were refused on account of some fault in the 
 party to whom they were denied ; in either case they would be 
 too remote to be a ground of damage against a third person. 
 Accordingly, they were refused under the following circum- 
 stances : The plaintiff deposited railway shares with a bank, 
 which left the full control over its securities to their manager. 
 He sold the shares and forged the plaintiff's name to the 
 transfer deed. On discovering this fraud the plaintiff filed a 
 bill against the transferee and the railway company for a 
 cancelment of the transfer and for the issue of new certificates. 
 He succeeded in his suit, but he was refused costs, the Court 
 being of opinion that he had conduced to the result by his own Former costs 
 negligence. He then sued the bank for these costs. The Court °° ^^^^ ^' 
 held that the failure to recover these costs, or any ascertainable 
 or separable portion of them, could not be said to have followed 
 naturally or directly as a consequence of the neglect of the 
 company. Lord Justice James seems to have put this on two 
 grounds. First, that although the bank might have been 
 negligent in the mode of keeping their securities, and there- 
 fore would have been liable for the costs of an action of detinue 
 brought to recover them, if lost, this negligence was not the 
 proximate cause of the plaintiff's loss. The real cause was the 
 manager's forgery. " Suppose the bailee of a key carelessly 
 allowed the key to fall into the possession of a man who com- 
 mitted a burglary, and by means of that key opened a box 
 which contained valuable property. It is scarcely possible to 
 hold that the negligence of the bailee with regard to the key 
 
 ((/) Pritchet V. Boevey, 1 C. & M. 775. A jilaintiff obtaining a verdict in 
 prohibition, cannot recover the costs of the proceedings in the court below as 
 damages under 1 Will. 4, c. 21, s. 1. White v. Steele, 12 C. B. N. S. 413 
 note ; 32 L. J.C. P. 1.
 
 GENERAL PrjNCIPLES OF DAMAGE. 
 
 would be followed by responsibility for the loss of every article 
 obtained by the burglar through the instrumentality of the 
 key." But, secondly, and this was, of course, conclusive, he 
 IDointed out that one of the reasons why the plaintifP had been 
 refused his costs in the equity suit was, that he himself had 
 unconsciously helped the manager to commit the fraud ; the 
 costs, therefore, were not the result of the bank's negligence, 
 but in a much nearer degree of his own (//). 
 
 There seem to be two exceptions to the rule that full costs, 
 as between attorney and client, cannot be allowed as damages. 
 The first is rather an apparent than a real exception. Ifc 
 relates to cases where costs could not be taxed ; for instance, 
 where judgment obtained by the defendant had been reversed in 
 error, in which case a Court of Error could not award costs (i). 
 And so where judgment had gone by default in the old action 
 of ejectment, when it was not the practice for the officers to 
 tax against the casual ejector (Jc). The other exception is 
 where the plaintili' has a right to an indemnity ; there it has 
 been laid down by Lord Tenterden, " that he is not indemnified 
 unless he receives the amount of the costs paid by him to his- 
 own attorney " (/). This distinction seems to be a just one : 
 where the obligation to repay costs is thrown by the law upon 
 a party against his will, it is fair that he should only repay 
 those costs which the law has itself allowed ; but where he 
 has expressly undertaken to save harmless, every expense, 
 whether taxed or not, may be justly recoverable {m). It must 
 be stated, however, that Smith v. Compfon was not a case of 
 express, but of implied indemnity, arising out of a covenant 
 for good title to convey : the plaintiff had defended an action 
 brought against him by a party with superior title. It may 
 be a question whether, upon the facts of the particular case, 
 the same decision would be arrived at again. 
 
 Costs of maintaining a former action will, of course, never 
 be recoverable, where the plaintiff might have obtained full 
 
 (A) He United Service Co., L. R. 6 Ch. 212 ; 40 L. J. Ch. 286. 
 
 {i) No-well V. Roake, 7 B. & C. 404. Now the Court of Appeal can award 
 costs, and thev usually follow the event. Ord. ij8, R. 4 ; L. R. 1 Ch. D. 41. 
 
 [k) Boe\. Euddart, 2 C. M. k R. 316. 
 
 {D Smith V. Compton, 3 B. & Ad. 407. 
 
 (ffi) Sparls V. ]\lartindcde, 8 East, .593, 596 : Lloijd v. Mostyn, 2 Dowl. 
 N. S. 476 : Howard v. Lovegrove, L. R. 6 Ex. 43 ; 40 L. J. Ex. 13.
 
 COSTS OF FORMER ACTION. i 
 
 satisfaction for the wrong done bim -without entering upon action for 
 the suit, and where the costs were incurred for some merely purpose^ 
 collateral purpose. Hence where the plaintiff, in an action 
 against the vendor of land, for not carrying out his contract, 
 claimed as damages the extra costs of a bill for specific per- 
 formance, Tindal, C.J., said, " The extra costs in Chancery are 
 not a damage which is a necessary consequence of the breach 
 of this contract. The filing a bill for a specific performance is 
 one degree removed from a consequence of the contract, and 
 the plaintiff must take the cousequence of the suit as in other 
 cases " (n). So in an action of trespass for taking goods under 
 a warrant of attorney and judgment, which were afterwards 
 set aside as illegal, the costs of setting aside the judgment 
 were not allowed (o). This rule, and its limitation, were well 
 explained in a later case. The plaintiff had been committed 
 to prison for manslaughter by a coroner's warrant. He was 
 admitted to bail, and subsequently got the inquisition, under 
 which he had been committed, quashed. It was held that in 
 an action against the coroner he might recover as special 
 damage the costs of quashing the inquisition. Lord Camp- 
 bell, C.J., said, " If the plaintiff had been discharged on a 
 habeas corpus instead of being admitted to bail, and had 
 afterwards got the inquisition quashed, I should have thought 
 that he could not have included the costs of quashing in his 
 damages, according to Holloicmj v. Turner. There the object 
 was to recover damages for seizing and selling the goods which 
 he might have done without setting aside the judgment. But 
 here, he was only released from prison upon giving bail to 
 appear and take his trial. He was still liable to surrender 
 on his own recognizances, and was not a perfectly free man 
 till he had got rid of the inquisition. By doing that he was 
 restored to his original state, but until then the effects of the 
 wrongful imprisonment were not done away with. Therefore 
 this is damage which flowed fi-om the wrongful act of the 
 defendant " ( j^). 
 
 As a further consequence of the principle, that costs of suit Nor when he 
 
 ■ iii\(i no rcjil ■ 
 
 must be the necessary result of the defendant's misconduct, it defence. 
 
 (»() Hodges v. LitrhfieU, 1 Bingh. N. C. 492. 
 
 (o) Holloway v. Turner, 6 Q. B. 928. 
 
 {p) FoxaU V. Barnett, 23 L. J. Q. B. 8 ; 2 E. & B. 928.
 
 88 GENERAL PRINCIPLES OF DAMAGE. 
 
 follows that ihej can never be allowed for w'here the plaintiff 
 had no locus standi in law in the former action. "Where this 
 Costs incurred is the case, all costs were clearly incurred in consequence of 
 cannot bc^'^^ his own obstinacy or ignorance. " No person has a right to 
 recovered. inflame his own account against another, by incurring addi- 
 
 tional expense in the unrighteous resistance to an action which 
 he cannot defend " (q). The question in these cases is, whether 
 the plaintiflF, in defending the action, did what a reasonable 
 man would do under similar circumstances where he had no 
 other judgment but his own to resort to. And accordingly, 
 where the plaintiff's ship had been run down by the defendant, 
 and the plaintiff had been forced to employ a steam-tug, the 
 owners of which claimed as salvage 150/. and commenced a suit 
 in the Admiralty Court ; the plaintiff paid in 20/. and was 
 adjudged to pay 45/. more ; held that he could not recover the 
 costs of this suit against the defendants ; and Parke, B., said 
 it was like the case of repairs, in which it has been held that 
 if the party chooses to stand the consequence of an action by 
 the tradesman for the value of the repairs, he cannot charge 
 the expense of that upon the party w^ho did the original wrong? 
 which made the ]-epairs necessary {>•). Accordingly, where a 
 bill, accepted by the planitiflf, was deposited with the defendant, 
 as security for a loan, and he after the loan was repaid indorsed 
 the bill to a third party, who on its dishonour arrested the 
 plaintiff, only the value of the bill was allowed in an action 
 against the defendant, and not the cost of the arrest, as he 
 ought to have paid it when due (6-). And so in a similar case, 
 where the plaintiff had defended the action (/). And the rule 
 is the same, though the plaintiff is accommodation acceptor, 
 who has been sued on his acceptance, and is now suing the 
 accommodation drawer (u). So in a case in which the plaintiff 
 guaranteed A. that defendant would upon demand pay A. 
 whatever should from time to time be due. A demand was 
 
 (5) Short V. Kalloway, 11 A. & E. 29 : Jionnelerr/ v. Falkland Islands 
 Co., 17 C. B. N. S. 1 ; 34 L. J. C. P. 34 : Godwin v. Francis, L. R. 5 C. P 
 29.5 : Pow V. Davis. 1 B. & S. 220 ; 30 L. J. Q. B. 257. 
 
 (r) Tindall v. Bell, 11 M. & W. 228, 232. 
 
 (s) Roach V. Thompson, 4 C. & P. 194. 
 
 (0 Bleaden v. Charles, 7 Bingh. 246. 
 
 (m) Beech v. Jones, 5 C. B. 696. The contrary doctrine was assumed in 
 Jones y. Brooke, 4 Taunt. 464 : Stratton v. Mathews, 3 Ex. 48 ; but the 
 rule laid down in the text seems clearly to be correct.
 
 COSTS OF FORMER ACTION. 89 
 
 made upon defendant, and upon non-payment, a writ issued 
 against plaintiff for the amount, this being the first uotifica- 
 tion he received. He allowed judgment to go by default, and 
 execution was levied upon his goods. It was decided, that he 
 might recover against the defendant the costs of the writ, but 
 not of any other proceeding. That was the only expense to 
 which he was necessarily put, as he was supposed by law to 
 have the money ready, without the process of execution {x). 
 
 This case seems to overriile a decision of Lord Hardwicke's? 
 who allowed in such an action the costs of an extent issued by 
 the Crown against a surety, which he had contested for some 
 time. In answer to the objection that the debt was improperly 
 disputed, he said, " I know of no such distinction." He also 
 relied upon the fact that an extent is both an action and 
 execution, and said that the surety could not be supposed 
 prepared to pay the claim immediately (y). Where, however, 
 two sureties had entered into a warrant of attorney, to secure 
 the debt of their principal, and upon his default judgment was 
 entered upon the warrant, and execution issued against one 
 surety, who had to pay the debt and the costs of the execu- 
 tion, it was decided that he might recover half of the costs 
 against his co-surety (2). This is quite consistent with the 
 previous cases, because very possibly the execution was the first 
 notice he received that his liability was about to be enforced. 
 
 In the cases just mentioned, the resistance made to the Costs of de- 
 original proceeding was not only ineffectual but useless and fe'iding action 
 . ^ •' where liability 
 
 therefore improper. But there is another class of cases, where is undefined. 
 
 the defence is maintained only for the purpose of ascertaining 
 the existence of a liability which is fairly disputed, or the 
 extent of a liability which is previously undefined. The person 
 against whom the claim is made would be acting proj^erly in 
 going to trial, or at all events letting judgment go by default, 
 and having damages assessed upon a writ of inquiry. Suppose 
 another person is liable to him upon what is substantially the 
 same cause of action ; can he recover against the last-named 
 person the costs which he has incurred in ascertaining the extent 
 of his liability, or whether he is liable at all ? The law upon 
 
 (x) Pierce v. Williams, 23 L. J. Ex. 322. 
 iy) Ex parte Marshall, 1 Atk. 262. 
 (2) Kemp V. Finden, 12 M. & W. 421.
 
 90 GENERAL nilXCIPLES OF DAMAGE. 
 
 this point was much discussed in various cases which have been 
 supposed to conflict with each other (a), but which have been 
 reviewed and restored to some sort of harmony in the more 
 nammond\. rcccnt case of Hammond v. Bussey (b). Tiiere the defendant 
 Btisseii. -^-as a coal merchant and the plaintift" was a shipping agent^ 
 
 part of whose business was, and was known by the defendant 
 to be, the supply of coal to steamships calling at Dover. The 
 plaintiif purchased from the defendant a quantity of coal 
 described as " steam coal " for the purpose of reselling it as 
 coal fit for use in steamers. He then entered into a contract with 
 the owners of certain steamships to supply them with coal, 
 the contract being such as would have been satisfied if the 
 defendant had fulfilled his agreement. The plaintiff's sub- 
 vendees made a claim against him on account of the bad quality 
 of the coal. He communicated with the defendant, proposing 
 that he should co-operate in the defence, and consent to be 
 bound by the verdict. The defendant refused to have anything 
 to do with the action, but supplied the plaintiff with various 
 certificates tending to show that the coal was equal to warranty. 
 The sub-vendees succeeded in their action, on the ground that 
 the coal was not reasonably fit for use as steam coal on board 
 ships. The plaintiff then sued the defendant to recover not 
 only the damages obtained by his sub-vendees but the costs of 
 defending the action. The judge found that the plaintiff had 
 acted reasonably in defending the former action, and that he 
 was entitled to be repaid his costs by the defendant. This 
 judgment was upheld by the Court of Appeal. They said that 
 the case came within the first and second rules in Hudleij v. 
 Baxendale (c), and that it did not depend on the existence of 
 any contract of indemnity, express or implied, between the 
 original vendor and vendee. The defendant knew that the coal 
 was bought for resale for steamer use. He must have reason- 
 ably contemplated that if it was unfit for use the sub-vendees 
 would threaten an action. The plaintiff", who knew little or 
 nothing about the coa], would then apply to him for informa- 
 
 (a) Mors le Blanchw Wilson, L. R. 8 C. P. 227, 233 ; 42 L. J. C. P. 70 : 
 Baxendale v. L. C. A D. Jiy. Co., L. R. 10 Ex. 35 ; 44 L. J. Ex.' 20 : 
 Fisher v. Val de Traiers Asphalte Co., 1 C. P. D. 511 : 45 L. J C P 479 ' 
 
 (6) 20 Q. B. D. 79 ; 57 L. J. Q. B. 58. 
 
 (c) Ante, p. 12.
 
 COSTS OF FORMER ACTION. 9% 
 
 tion, and would be guided as to his future conduct bj the 
 answers given. If it was admitted that the coal was unfit for 
 use, he would not defend at all, or, if lie did defend, would do 
 so at his own risk. But if, as actually happened, he was assured 
 that the coal was good, it would be a proper thing for him to 
 defend the action, and the natural result of his doing so, and 
 failing, would be that he would have to pay costs, which again 
 ought fairly to be repaid to him, as being part of the sequence 
 of events which might reasonably have been contemplated. 
 
 In Mors h Blanch v. Wilson (d) the owner of a ship sued 
 the charterer for delay which had been caused by the neglect of 
 the consignee of goods to take delivery from the charterer. In 
 an action by the charterer against the consignee, it was held that 
 he might recover, not only the damages he had been compelled to 
 pay to the owner, but also the costs he had incurred in defending 
 the action. The jury found that the defence was a reasonable one. 
 
 This was in direct conformity with Hammond v. Bussey. 
 Fry, L.J., pointed out, however, {e) that the case had been 
 supposed to establish " two propositions, one being that the 
 costs could be recovered in such a case, where the action was 
 reasonably defended ; the other that they could be recovered, 
 though the action was unreasonably defended, if the incurring 
 of such costs had been of use as leading to the assessment of 
 the damages which could be recovered over against the defen- 
 dants." He doubted whether the latter proposition had been 
 decided by Mors le Blanch v. Wilson, but if it was, he did not 
 agree with the decision, as he did not see how the verdict as to 
 tlie damages in one action could be binding as an estoppel in 
 the other. This was the ground of the decision in BaxencMe 
 V. L. C. & D. Ry. Co. (/). There Harding had entrusted two 
 pictures to Baxendale for carriage to Paris, and Baxendale 
 handed them over to the railway company for transmission 
 over part of the distance. The defendants dropped the parcel 
 into the sea and thereby damaged it. When Harding sued the 
 plaintiff he wrote to the defendants, asking whether they would 
 defend the action, or authorise him to do so on their account. 
 The defendants declined to have anything to do with it, as 
 
 (d) L. R. 8 C. P. 227 ; 42 L. J. C. P. 70. 
 
 (e) 20 Q. B. D , p. 101. 
 
 (/) L. K. 10 Ex. 35 ; 44 L. J. Ex. 20.
 
 02 GENERAL PRINCIPLES OF DAMAGE. 
 
 they denied their legal liability, upon which the plaintiff 
 wrote again, stating that he would hold the defendants liable 
 for the damages that might be recovered, and the costs which 
 he might incur from defending the action. The only defence 
 which could be raised, both by the plaintiff and by the railway 
 company, arose under the Carriers Act, as to which the plaintiff 
 was repeatedly advised that it afforded no defence. He also 
 set up some special pleas arising out of his own position as 
 forwarding agent. The result was that Harding recovered a 
 verdict of 650/. for the value of the pictures (he had claimed 
 1,OOOZ.) and costs. The plaintiff then sued to recover this 
 sum and his own costs, and those paid by him to Harding in 
 the foimer action. The only difference arose as to the costs. 
 The Exchequer Court considered that the case came within 
 " the rule laid down, or rather acted upon in Mors le Blanch v. 
 ^7ihon, according to which a jury are to give such costs as 
 were reasonably incurred by the plaintiffs in the action against 
 them, either in defending the action or otherwise ascertaining 
 the amount of liability." They said, " It is true that we think 
 the defence under the Carriers Act could not be successfully 
 set up ; but still we are of opinion that it was quite justifiable 
 on the plaintiff's part not only to have the amount of liabiHty 
 established by a jury, but also to put forward the Carriers Act 
 as a ground of defence, as the defendants to the last insisted 
 upon it." This decision was reversed by the Exchequer 
 Chamber. The judges were of opinion that the defence was 
 not a reasonable defence. It was without any foundation in 
 law, and there was no authority from the defendants, either 
 express or implied, to set it up. The result was that the costs 
 claimed were not the proximate consequence of the defendants' 
 breach of duty. This of course was a perfect and suflficienfc 
 ground for their judgment. The judges, however, seemed to 
 consider that their decision was opposed to that of Mors le Blanch, 
 and to doubt whether the cases were distinguishable, or whether 
 that of Mors le Blanch v. Wilson should be overruled. 
 
 This case was followed in a later case of Fisher v. Val de 
 Traiers Asphalfe Comjmnyifj). There a Tramway Company 
 contracted w4th Fisher to construct a tramway, and Fisher 
 
 {rj) 1 C. P. D. 511 ; 45 L. J. C. P. 479.
 
 COSTS OF FOE^IER ACTION. 93 
 
 contracted with the defendants to lay asplialtc. The defen- 
 dants did their work so badly that one Hicks was injured. He 
 sued the Tramway Company, and Fisher undertook the defence. 
 The defendants refused to interfere. Fisher settled the claim 
 by paying 70/. damages and iOl. costs. He also incurred 18/. 
 for his own costs. He then sued the defendants for the three 
 sums. The jury found that he acted reasonably in compromis- 
 ing the claim. The 70/. was allowed, but the claim for costs 
 was disallowed on the authority of Baxendale v. London, 
 Chatham, and Dover Eailivai/, cited above, though Brett, J., 
 said : " But for the case referred to, I must confess I should 
 have been unable to see any distinction between the damages 
 and the reasonable costs of ascertaining their amount. But I 
 cannot help thinking that the question is concluded by the 
 decision in Baxendale v. London, Chatham, and Dover Railwaij 
 and that, assuming the damages paid to the person injured to 
 be the direct and natural consequence of the defendants' breach 
 of contract, yet the costs of ascertaining the proper amount of 
 those damages are not sufficiently direct, however reasonably 
 incurred." Lord Coleridge, C.J. also thought that the case was 
 concluded by authority, but he said : "Are the defendants to 
 be liable to three sets of costs, because the actions may have 
 been reasonably defended ? If they are, the consequences 
 may be serious. If not, at which link of the chain are the 
 costs to drop out ? It would be extremely difficult to lay down 
 any principle upon which it could be said that one set of costs 
 would be reasonable, and another not." In Hammond v, 
 Bussey, Lord Esher, M.R. said of this decision {h) : " I must 
 admit, after the discussion that has now taken place, that I 
 doubt whether, when that case came before the Court, I did 
 quite correctly appreciate what was decided and what was not 
 in the case of Baxendale v. London, Chathom, and Dover 
 Railicay Co. Assuming that I did not in that case take an 
 altogether correct view of the decision in Baxendate v. London, 
 Chatham, and Dover Railway Co., and therefore gave a wrong 
 reason for the decision there, that could have no effect upon 
 the true meaning of the previous decision ; and it by no means 
 follows, that because a reason given for the decision in Fisher 
 
 ill) 20 Q. B. D., p. 92 ; 57 L. J. Q. B. 58.
 
 2)4 
 
 GENERAL PRINCIPLES OF DAMAGE. 
 
 New practice 
 for settling 
 liability as to 
 all parties 
 interested. 
 
 False assertion 
 of authority 
 by agent. 
 
 Damages in- 
 clude costs. 
 
 V. Val de Travers Asplmlte Co. was wrong, that therefore the 
 decision itself was wrong. It is unnecessary, however, now to 
 discuss that question," 
 
 The result appears to be, that damages and costs stand 
 on the same footing, and that the question to be answered 
 as to each is, whether they were incurred by one party, 
 as the natural and reasonably contemplated result of the 
 wrongful act of the other party. But that it is not a proper 
 thing to raise an unreasonable defence to an action, merely in 
 order to obtain a verdict as to the amount of damages which 
 will not bind the party who is ultimately liable. 
 
 Under the system of procedure recently introduced, a de- 
 fendant who claims to be entitled to contribution or indemnity 
 over against a third person, can, on obtaining proper leave, 
 give notice to the latter so as to enable him to dispute the 
 plaintiff's claim as against the defendant. If he does not 
 do so, he will be deemed to admit the validity of a judg- 
 ment obtained against the defendant by consent or otherwise, 
 and his own liability to contribute or indemnify, as the case 
 may be, to the extent claimed in the third party notice (i). 
 A jury, in considering whether the defendant took a reason- 
 able course in defending an action, would take into considera- 
 tion the opportunity which he had under the new practice of 
 avoiding costs himself, by putting the person from whom he 
 claims indemnity or relief in a position to defend the action. 
 
 One who professes to contract as agent for another must, 
 unless there be something in the transaction to rebut the im- 
 plication, be taken to warrant that the authority, which he 
 professes to have, does in fact exist ; and if he has no such 
 authority, he is liable to make good to the person who enters 
 into the contract upon the faith of his being duly authorised, 
 all the damage which is the natural and proximate conse- 
 quence of the false assertion of authority (Jc). This will include 
 the costs of unsuccessful legal proceedings taken by such person 
 
 (i) Ord. 16, R. 48 to 53. 
 
 (k) Collen v. Wright, 7 E. & P.. 301 ; 26 L. .1. Q. B. 147 ; affirmed ia 
 Ex. Cli. 8 E. & B. 647; 27 L. .T. Q. B. 215, jjost, p. 337. Where the 
 principal for whom the defendant pi'ofes-;ed to b3 authorised to contract is 
 insolvent, the damages will possibly be nil. Per Blackburn, J.. Richardson 
 V. Williamson. L. R. 6 Q. B. at p. 279 ; 40 L. J. Q. B. 145 ; and per 
 Honymaa, J., Weeks v. PropeH, L. R. 8 C. P. 433 ; 42 L. J. G. P. 129.
 
 COSTS OF FORMER ACTIOX. 95 
 
 against the supposed principal for the purpose of enforcing 
 performance of the contract or recovering damages for its 
 breach ; if at least it was reasonable under the circumstances of 
 the case that such proceedings should be taken, or if the pro- 
 fessed agent was made aware of the litigation and sanctioned 
 it, either expressly, or by allowing it to be continued without 
 avowing his want of authority (/). And though it may be 
 imprudent in some cases to commence proceedings without 
 warning him of the course which it is intended to pursue, it is 
 not essential that he should bo consulted, it being a question for 
 the jury in each case whether the complaining party exercised 
 due caution under all the circumstances of the case, and 
 whether the legal proceedings were reasonably adopted (w). 
 
 Conversely, no action will lie against a person who has 
 made a false representation of authority, for which he would 
 otherwise be liable, if, notwithstanding the falsity of the repre- 
 sentation, the plaintiif is in a position to enforce all the rights 
 lie would have liad, if the representation were true ; a fortiori 
 not, if in point of fact he has enforced them. For the cause 
 of action arises not from the false statement alone, but from 
 the injury which has accrued to the i)erson who cited upon it. 
 This is at once the ground of liabihty, and the measure of 
 damages (n). 
 
 It must be observed that a person who makes such an untrue What false 
 
 statement of authority is equally liable whether he loiiCi fide statement is 
 ,.,.,., 1 • 1 1 actionable. 
 
 beheved m that which he alleged, or actually knew it to be 
 
 false (o). For the basis of the liability is that another has 
 
 accepted, and acted ujjon his statement as true. Bat for this 
 
 purpose the representation must be one of fact, and not of law. 
 
 Because a statement of fact induces the person to whom it is 
 
 made to dispense with inquiry. But a statement of law is 
 
 merely an expression of opinion, and every one is bound either 
 
 {I) Collen V. Wright, ubi supra; Randell v. Trimen, 18 C. B. 786; 25 
 L. J. C. P. 307. And see the cases cited, ^josJ, p. 337. 
 
 (m) JIujkes r. Graeme, 33 L. J. Q. B. 335 : Collen v. Wright, 7 E. & B. 
 at p. 314 ; 26 L. J. Q. B. at p. 151, per Crompton, J.; Godwin v. Francis, 
 L. R. 5 C. P. at p. 306 ; 39 L. J. C. P. at p. 1:^5, per Bovill, C. J.: and see 
 post, p. 340. 
 
 (n) Beattie v. Lord Ehury, L. R. 7 Ch. 777 ; affirmed in principle, L. R. 
 7 H. L. 102 ; 44 L. J. Ch. 20. 
 
 (o) Collen V. Wri<iht, 8 E. & B. 657 : Weeks v. Propcrt, L. R. 8 C. P. 
 427, 437 ; 42 L. J. C. P. 129.
 
 96 
 
 GENERAL PRINCIPLES OF DAMAGE. 
 
 Case of defen- 
 dant's conduct 
 exposing 
 plaintiff to 
 injunction. 
 
 Tenant hold- 
 ing over. 
 
 to know the law himself, or to take the usual steps for satis- 
 fying himself upon it (j!?). And on the same principle mis- 
 representation does not exist when each party is perfectly 
 cognisant of the true state of affairs {q), or where the untrue 
 statement has not been the operating motive upon the mind of 
 the other party (r). 
 
 The above cases are merely special illustrations of the 
 general principle, that where the wrongful act of one person 
 places another in a position in which he necessarily or reason- 
 ably has recourse to law, the costs incurred by the former 
 will be recoverable from the latter. Accordingly where the 
 defendant had employed the plaintiff to manufacture fire bricks 
 for him marked with what was, to the knowledge of the defen- 
 dant, but not of the plaintiff, an infringement of the trade 
 mark of another maker, who, in consequence, filed a bill in 
 Chancery against the plaintiff for an injunction and account ; 
 the plaintiff compromised the suit in Chancery, and brought 
 an action against the defendant to recover the amount which 
 he had paid, and the costs to "which he had been put. It was 
 objected on demurrer to the declaration that the plaintiff 
 having acted innocently, might have successfully defended the 
 suit. But the Court of Queen's Bench were of opinion that the 
 proceedings in Chancery were well founded, and, therefore, that 
 the plaintiff had a good cause of action for his costs and 
 expenses ; and Crompton, J., with the acquiescence of Hill, J., 
 went so far as to say, " if the natural consequence of the act of 
 the defendant is to plunge the plaintiff into a Chancery suit, 
 whatever the result may be, I am not prepared to say that that 
 would not be a sufficient damage to ground an action at law" (s). 
 
 Similarly, a landlord, being entitled to recover from his 
 tenant all the loss which he may sustain by not being put in 
 possession of the premises at the end of the term, can recover 
 the costs of ejecting an undertenant who holds over, though ib 
 
 {p) Rashdall v. Ford, L. E. 2 Eq. 750 : Beattie v. Lord Ebimi, L. R. 
 7 Ch. 777. 802 ; 44 L. J. Ch. 20 : Eaglesfield v. Londonderry, 4 Ch. D. 
 693. See as to what is a statement of law, per Jessel, ^F.R. , at p. 702. 
 
 iq) Per Lord Hatherley, L. R. 7 H. L. 130 : Eajlcsfield v. Londonderrii, 
 4 Ch. D. 693. "^ 
 
 (r) Clapham x. Shillito, 7 Beav. 1 49. 
 
 (s) Bix'm V. Favcus, 3 E. & E. 537 ; 30 L. J. Q. B. 137. See, too Ex 
 parte Carr, 11 Ch. D. 62 ; 48 L. J. Bkcy. 69.
 
 COSTS OF FORMER ACTIO.V. 97 
 
 be against the will of the tenant (^t) ; and where a tenant held 
 over, and an action was consequently brought against the land- 
 lord by a person to whom he had agreed to let the premises in 
 the ordinary way, the landlord was held entitled to recover 
 from the old tenant the damages and costs which he had 
 to pay the new tenant, and likewise his own costs of defending 
 the action up to a point which was found to be reasonable (w). 
 
 There are several cases in which it appears to have been laid Case of war- 
 down as a general rule, that where goods are sold with a re^s^le 
 warranty by A. to B., and B. resells with a similar warranty to 
 C, who sues and recovers against him for breach of warranty, 
 B. may recover against A. not only the costs and damages he 
 had to pay C. in the former action, but also his own costs 
 incurred in defending it (.r). But it has been pointed out by 
 Parke, B, (//), that Lewis v. Peake was decided on the ground, 
 that the plaintiff was not aware at the time he sold the horse, 
 that the warranty was not complied with. Accordingly, where 
 plaintiff had purchased a horse of the defendant with a warranty 
 of soundness, and sold it with a like warranty to J. S., and the 
 horse turning out unsound, J. S. brought an action against 
 him, which he defended, and failed ; the jury having found 
 that the plaintiff ought to have discovered that it was un- 
 sound, at the time he sold it to J. S., it was held that he was 
 not entitled to recover as specific damages the costs incun-ed 
 by him in defending the former action (z). Because these 
 costs arose, not from the breach of warranty by the defendant, 
 but from his own carelessness in giving a similar warranty again. 
 
 Of course in all such cases as those above mentioned, the Costs allowable 
 defendant in the second action will be liable for the costs of the saiictioned?^^ 
 first, if he has advised or sanctioned a defence being set up ; 
 because by directing a defence he has admitted that there were 
 reasonable grounds for defending (a). And it would seem 
 that slight evidence upon this point may warrant a jury in 
 findingr that the defence was sanctioned. A. sued B. in an 
 
 it) Henderson v. Squire, 2 L. R. 4 Q. B. 170. 
 (u) Bramlcy v. Chesterton, 2 C. B. N. S. 592 ; 29 L. J. C P. 23. 
 (x) LewiJi V. Peake, 7 Taunt. 153 : Mainwurinj v. Brandon, 8 Taunt. 
 202 : PenneU v. Woodburn, 7 C. & P. 117. 
 (y) 10 M. k W. 255. 
 
 (z) Wriffhtup V. Chamberlain, 7 Sco. 593. 
 (a) WiUiama v. Burrell, 1 C. B. 402 ; Howes v. Martin, 1 Esp. 162. 
 
 M.D. H
 
 98 
 
 GENERAL PRINCIPLES OF DAMAGE. 
 
 But not when 
 action brou<;ht 
 for plaintiff's 
 own wrong. 
 
 Costs not re- 
 coverable when 
 arising from 
 l;laintifl''s own 
 default. 
 
 action, in 'which B. would have a remedy over against C. ; B. 
 gave notice to C. of the nature of the action, and called on him 
 to come in and defend it. This C. refused to do, but did not 
 forbid a defence being taken. B. suffered judgment by default, 
 and put A. to the proof of his claim, at the writ of inquiry. It 
 was held that there was evidence to go to the jury that C, had 
 sanctioned the defence, and the jury having included these 
 costs in the damages in the ection by B. against C, the Court 
 refused a new trial (b). 
 
 And iu another case, silence on the part of the defendant in 
 the second action, Avhen Avritten to by the defendant in the first 
 action for instructions how to act, was considered a sanction of 
 the defence to the first action (c). 
 
 In no case can the costs of defending an action be recovered 
 when that action is brought, not merely for the wrongful act 
 of the defendant in the second action, but also for some 
 wrongful act of the original defendant himself. Covenant by 
 assignee of lease containing covenant to repair, against lessee 
 who had covenanted with him that he had repaired ; breach 
 that he had not repaired, iu consequence of which, plaintiff, 
 who had himself assigned over with a similar covenant, had 
 been sued by his assignee, and forced to pay £120 to settle. 
 The jury in the second action found that the plaintiff' had only 
 been damnified by the breach of defendant's covenant to the 
 extent of 50/. On leave reserved to add the costs plaintiff had 
 incurred in the former action, the Court held, that as the 
 amount paid in it was greater than that found by the jury to 
 have been the damage caused by the defendant's non-repair, the 
 difference must be taken to have been damage caused by the 
 plaiutifF's own non-repair. This being so, the defence of the 
 action brought against him by his assignee, and the costs so 
 incurred, were not the necessary consequence of the defendant's 
 breach of contract (d). Accordingly several cases have decided, 
 that where A. leases to B. with covenants, as for instance to 
 repair, and B. makes an under-lease to C. with covenants 
 similarly worded, and C. neglects to repair in consequence of 
 which A. sues B. ; B. in his action against C. can only recover 
 
 (h) Blytli V. Smith, 5 M. & G. 405. 
 
 (c) Ralph V. Crouch, L. R. 3 Ex. 44 ; 37 L. J. Ex. 8. 
 
 [d) Short V. Kalloway, 11 A. & E. 28.
 
 COSTS OF FORMER ACTION. 99 
 
 as damages the loss caused by the breach of covenant, and not 
 the costs of the former action (e). In all these cases the cove- 
 nants, even when identical in words, were really different in 
 substance, because a general covenant to repair is construed to 
 have reference to the condition of the premises at the time 
 when the covenant begins to operate, and when the leases are 
 granted at different times, the covenants would vary sub- 
 stantially in their operation, and different amounts of damages 
 would be recoverable (/), But in the case in the C. B. 
 Maule, J., said that, even if the convenants were identical in 
 their effect, still where A. has broken his covenant entered into 
 Avith B., the loss must be considered to result from that breach, 
 and not from the breach of an independent covenant entered 
 into by A. with C, though for the same object. In all these 
 cases the proper course for the plaintiff would have been to pay 
 the proper amount when demanded before action {g), or suffer 
 judgment by default (A). 
 
 Cases like those just mentioned, in which a party merely Cases of 
 covenants to do a particular thing, are different from those in I'l'lemmty. 
 which he covenants to idemnify some one else against the 
 consequences of his not doing it. In the latter case " the 
 defendants would be responsible, unless they had put them- 
 selves into the same condition as the 'plaintiffs, and saved them 
 from all harm, and amongst other things from the costs of the 
 action brought against them ; and if the plaintiffs had desired 
 to be so secured, they might have made themselves safe by 
 taking a covenant of indemnity against any breach of the 
 covenants in the original lease" (/). And the reason of this 
 distinction is obvious on referring to the doctrine which is the 
 foundation of all damages, viz., that they must be the natural 
 result of the wrong alleged. A covenant to repair involves no 
 other obligation than simply that the premises should be 
 repaired. Breach of the covenant entails no other injury than 
 
 (c) Pcnley v. Waits, 7 M. & ^Y. 601 : Walker v. Hatton, 10 M. & W. 
 249 : Logan v. Hall, 4 C. B. 598 : overruling Neale v. Wyllie, 3 B. &; C. 
 533. 
 
 (/) Per Parke, B., 10 M. & W. 258 : Pontifex v. Foord, 12 Q. B. D. 152 : ' 
 and see Baxendale v. L. 0. cL- D. Jiy. Co., L. 11. 10 Ex. 35 ; 44 L. J. Ex. 
 20, ante, p. 91. 
 
 {(/) 10 M. & \V. 258. 
 
 (A) Smith. V. Ilo^cell, 6 Ex. 730. 
 
 (i) Per Parke, B., 7 M. & W. 609. 
 
 H 2
 
 100 GENERAL PRINCIPLES OF PAMAGE. 
 
 Cases of that resulting from the disrepair, the measure of which is the 
 
 m emni 3. ^^^^ of money necessary to restore things to the state in which 
 they should have been kept. But a covenant to indemnify at 
 once leads the mind to contemplate ulterior consequences, the 
 most obvious of which is the risk of an action against the party 
 indemnified, for the non-performance of duties, which the party 
 indemnifying has taken upon himself. Accordingly, in an 
 action on a separation bond, by which the trustee indemnifies 
 the plaintiff against debts incurred by his wife after separation^ 
 the husband was allowed to recover not only the debt, but the 
 costs of an action against him. And it is not necessary to give 
 the surety notice of the first action : but if notice is given to 
 him, and he refuse to defend the action, in consequence of 
 which the person to be indemnified is obhged to pay the 
 demand, that is equivalent to a judgment, and estops the other 
 party from saying that the defendant in the first action was 
 not bound to pay the debt (^). And full costs as between 
 attorney and client will be allowed (/). Even in such cases, 
 however, the costs to be recoverable must be necessarily in- 
 curred. A man has no right, merely because he has an 
 indemnity, to defend a hopeless action, and put the person 
 guaranteeing to a useless expense (m). And although the 
 indorser of a bill of exchange is in a certain sense a surety for 
 the acceptor, there is no such privity between them as will 
 enable the endorser, who has been forced to pay the bill, to 
 recover against the acceptor re-exchange, much less costs 
 incurred by him in action on the bill (w). 
 
 The same principle applies where a person authorises another 
 to do an act in his name, and indemnifies him against the 
 consequences. Thus, where a landlord [authorised a broker to 
 distrain, and undertook to indemnify him against all costs and 
 charges in respect of any law expenses or actions that might 
 arise or be brought against him, and the broker distrained in 
 a perfectly regular way, but the tenant brought a vexatious 
 and groundless action against him which he defended, and the 
 
 (^•) Duffidd V. Scott, 3 T. R. 374 : Jones v. Williams, 7 M. & W. 493. 
 
 (?) Smith V. Compton, 3 B. & Ad. 407 : Howard v. Lovegrove, L. R. 6 Ex 
 43 ; 40 L. J. Ex. 13. 
 
 (m) 10 M. & W. 259 : Gillett v. Rlppon, 1 M. & M. 406 : Knight v. 
 Hughes, ibid. 247. 
 
 (71) Dawson v. Morgan, 9 B. & C. 618.
 
 PERIOD DP TO WHICH DAMAGES ARE CALCULATED. 101 
 
 tenant was non-suited, the broker was held entitled to recover Cases of 
 from the landlord the costs of defending the action. It was I'^'^^^^iiity 
 urged that the landlord only bound himself to indemnify against 
 the costs of actions which might be brought on the ground that 
 there was no right of distress, but it was considered that the 
 indemnity extended to all actions to which the broker might be 
 subjected, except for actual misconduct or default of himself or 
 his servants (o). 
 
 So where an execution creditor pointed out to the sheriff a 
 wrong person as his debtoi', and the sheriff arrested him and 
 was then sued for the wrongful arrest, and defended the action 
 without communicating with the creditor ; it was held that the 
 sheriff could only recover those costs in an action against the 
 creditor, if the defence of tlie action by him without communi- 
 cation with the creditor was a reasonable course to take under 
 the circumstances, and that whether it was so or not was a 
 question for the jury (/;). 
 
 The last point upon which we need remark is where the Costs of action 
 first action is against two jointly, and the second is brought '^s^^^^^ ^'^^• 
 by one of the two alone. An instance of this sort occurred 
 where two were indicted for a conspiracy. It was held that 
 if one employed an attorney he might, in an action for 
 malicious prosecution, properly charge the costs of defending 
 both, because each was interested in the acquittal of the other. 
 But if each had a distinct defence, as, for instance, if one 
 alone proved an a/ibi, it was said that the case might be 
 different. There, however, the costs would be easily severaljle, 
 and the jury would be bound to consider how they should be 
 borne (q). 
 
 III. The next subject of inquiry relates to the period of time Time to which 
 in reference to which damages may be assessed. assessed. 
 
 It is of course quite clear that no damages can be given on ^^t^^^ allowed 
 account of anything before the cause of action arose. There- before cause of 
 fore where the plaintiff claimed damages for not grinding at his ^'^^^°^ '^^°^^- 
 mill from 2 Jac. I. to the 12 Jac. I., and at the same time 
 showed that his title to the mill dated from 11 Jac. I., general 
 damages being given for the plaintiff', the judgment was 
 
 (o) Ibbclt V. De la Salle, 6 H. & N. 233 ; 30 L. J. Ex. 14. 
 Ip) L'aldbtck V. Boon, 7 ir. Rep. C. L. 32. 
 Iq) liowlaitds v. Samuel, 11 Q. B. 39.
 
 102 
 
 GENERAL PRINCIPLES OF DAMAGE. 
 
 Rule where 
 damage has 
 aiisen since 
 action brought. 
 
 Subsequent 
 damage, when 
 allowed for. 
 
 arrested (r). And similarly where the declaration stated that 
 the defendant on the 3rd of August caused the plaintiflF's 
 meadow to be overflowed, whereby he lost all the use and profit 
 of it from the 2nd of July (s). 
 
 Cases of much greater difficulty often arise when the question 
 is up to what time, subsequent to the cause of action, damages, 
 may be assessed. Whether they must be limited by the com- 
 mencement of the action, or may be calculated up to time of 
 verdict, or to an indefinite period afterwards. The result of 
 these decisions seems to be, that damages arising subsequent to 
 action brought, or even to the date of verdict, may be taken 
 into consideration, where they are the natural and necessary 
 result of the act complained of, and where they do not them- 
 selves constitute a new cause of action. Hence, where an 
 action was brought by a master for an injury to his apprentice, 
 he was allowed to receive such damages as would compensate 
 him for the loss of service during the remainder of the term ; 
 for such subsequent loss could never form the ground of a fresh 
 action, the action beiug founded not upon the damage only, 
 but upon the unlawful act and the damage (f). And, on this 
 principle, where a plaintiff who had recovered in a previous, 
 action for assault and battery, brought a fresh action upon 
 another piece of his skull coming out, it was held that the former 
 recovery was a bar ; Holt, C. J., said, " Every new dropping is 
 a new nuisance, but here is not a new battery, and in trespass, 
 the grievousness or consequence of the battery is not the ground 
 of the action, but the measure of damages, which the jury 
 must be supposed to have considered at the trial " (w). This 
 doctrine has been applied in some very recent cases. In one, 
 the facts were, that the defendant had excavated up to the 
 borders of his own mine, and then made an aperture in the 
 plaintif[''s, through which water continued to flow into the 
 mine of the latter. It was held, first, that there was no lea:al 
 obligation upon the defendant to fill up the aperture so made, 
 
 (r) Harbin v. Green, Hob. 189. 
 
 (s) Prince v. Moidton, Lord Raym. 248. 
 
 [t) Hodsoll V. StaUebrass, 11 A. & E. Sul, 305. 
 
 V«) Fetter V. Beak, 1 Salk. 11. Per Bowen, L. J., BrunsdenY. Humphrey 
 14 Q. B. D., p. 148 ; 53 L. J. Q. B. 476 ; fer Ld. Halsbury, Barley Main 
 Colliery Co. V. Mitc'iell, 11 App. Ca. 132, 55 L. J, Q. B. 529 ; per Ld. 
 Bramwell, ibid., p. 144.
 
 PERIOD UP TO WHICH DAMAGES ARE CALCULATED. 103 
 
 and that the leaving it open did not amonnt to a continuing 
 nuisance ; secondly, that a recovery in a former action fur 
 making the aperture barred all consequential damages from its 
 remaining open {x). So where the plaintiff driving his cab was 
 run into by the defendant's vehicle, it was held that the injury 
 to the cab and the injury to the plaintiff himself were distinct 
 causes of action. The plaintiff might have united both iu the 
 same action, and if he had done so a recovery of damages would 
 have been final, and would have barred a fresh suitfor any sub- 
 sequent loss to himself arising from either cause of action. But 
 he was not bound to do so, and therefore a recovery of damages 
 for the injury to the cab was not a bar to a subsequent action 
 for the personal injuries resulting from the collision (//). Similar 
 questions often arise in cases where a person by digging, mining, 
 building, or the Hke, affects the plaintiff's land or house iu such 
 a manner as to produce injurious consequences, which manifest 
 themselves at a later period. Here it is now settled, that all 
 subsequent or recurring damage arising out of any particular 
 cause of action may be assessed, and can only be recovered in a 
 suit brought upon that cause of action. If the act which causes 
 the damage is in itself unlawful, as for instance, a trespass upon 
 the plaintiff's land, or an injury to the plaintiff's house, then it 
 is the cause of action (z). If it is lawful in itself, as for instance 
 some act done by the defendant on his own land, which becomes 
 unlawful by the injury it produces to the plaintiff, the injury, 
 and noc the lawful act which led to the injury, is the cause of 
 action. If the owner of land by working out his own minerals 
 deprives his neighbour of the support to which he is entitled for 
 his land, the latter has a cause of action as soon as any subsi- 
 dence results from the working. All damage, actual or pro- 
 spective, arising from that subsidence must be claimed in that 
 action. But if a new subsidence follows from the same working 
 which led to the first subsidence, this is a new cause of action, 
 and not a subsequent damage arising out of the first cause («)• 
 The same rule applies where a person is authorised to do an act 
 
 (x) Clegg v. Dearden, 12 Q. B. 576. 
 
 ((/) Bransdcn v. Humphrey, 14 Q. B. D. 141 ; 53 L. J. Q. B. ill, per 
 Lord Bramwell, 11 App. Ca., il 144 ; 57 L. J. Q. B. 529 : tSerrao v. Nod, 
 15 Q. B. D. 549 : MucdomjaL v. Knight, 25 Q. B. D. 1. 
 
 (z) Spoor V. Green, L. li. 9 Ex. 99 ; 43 L. J. Ex. 57, pe?- Lord Ilalsbury, 
 11 App. Ca. , p. 132. 
 
 (a) Mitchell v. Uarley Main Colliery Co., 14 Q. B. D. 125 ; 53 L. J. Q. B.
 
 104 
 
 GENERAL PEINXIPLES OF DAMAGE. 
 
 Repudiation 
 of contract. 
 
 Negligence of 
 attorneys. 
 
 which will injuriously affect another upon paying compensa- 
 tion (h) ; or where a statute gives a magistrate summary 
 power to award compensation for an unlawful act (c). The re- 
 ceipt of compensation is full satisfaction in respect of the act 
 for which it is awarded. 
 
 A similar principle is applied to contracts to be performed 
 at a future time. If before the time for performance arrives 
 one party absolutely and definitively repudiates the contract, the 
 other party is entitled either to wait till the time arrives, and 
 then bring his action, or to treat the contract as broken, and 
 sue for the breach at once. In the latter event he will be en- 
 titled to such damages as would have arisen from the non-per- 
 formance of the contract at the appointed time. " But in 
 assessing the damages the jury will take into consideration 
 whatever the plaintiff" has done, or has had the means of doing, 
 and, as a prudent man, ought to have done, whereby his loss 
 has been, or would have been diminished " (d). 
 
 In suits against attorneys for breach of duty, the negligence 
 is the cause of action, and not the consequential injury (e) ; 
 no fresh suit can be brought upon the accrual of fresh loss ; 
 hence it follows that in such cases the jury may give as 
 damages, not only what has been, but what may naturally be, 
 the result of the wrong complained of, for otherwise there 
 would be no redress. 
 
 471 : affd. 11 App. Ca. 127 ; 55 L. J. Q. B. 529 : following Backhouse v. 
 Bovomi, 9 H. L. C. 503 : over-ruling Nicklin v. lVilliam.% 10 Ex. 259 ; 
 23 L. J. Ex. 335, and Lamb v. Walker, 3 Q. B. D. 389 ; 47 L. J. Q. B. 
 451 : ace. Crumble v. Wallsend Local Board, (1891) 1 Q. B. 503 ; 60 L. J. 
 Q. B. 392. See Ecclesiastical Commissionirs v. N. E. Ry. Co., 4 th. D. 845 ; 
 47 L. J. Ch. 20 : and Gibbs v. Guild, 9 Q. B. D. 59, as to the effect of fraud 
 or concealment upon the operation of the Statutes of Limitations. 
 (6) Great Laxey Minhvj Co. v. Clague, 4 App. Ca. 115. 
 
 (c) Wright v. London General Omnibus Co., 2 Q. B. D. 271 ; 46 L. J. Q. 
 B. 429. 
 
 (d) Per Cockburn, C. J., Froi^t v. Kni'/ht, L. R. 7 Ex. Ill : 41 L. J. Ex. 
 78 : following JJocJistcr v. Be la Tour, 2 E. & B. 678 ; 22 L. J. Q. B. 455 ; 
 Cherry v. Thompson, L. R. 7 Q. B. 573 ; 41 L. J. Q. B. 243 ; see as to the 
 application of this doctrine to leases or other contracts containing various 
 s-tipulaiions, not going to the whole consideration for the contract, John.'stone 
 V. Milling, 16 Q. B. D. 460 ; 55 L. J. Q. B. 162 ; as to the extent to which 
 the plaintiff is bound to take steps to diminish the damage which will flow 
 from the defendant's breach of contract, see the remarks of Kelly, C.B., in 
 Brown V. M viler, L. R. 7 Ex. at p. 322, and of Brett, J., in Roper v. 
 Johnson, L. R. 8 C. P. 167, at p. 181 ; 42 L. J. C. P. 65. 
 
 (e) Hhort V. McCarthy, 8 B. & A. 626 : Howell v. Voung, 5 B. & C. 
 259.
 
 PERIOD UP TO WHICH DAMAGES ARE CALCULATED. 105 
 
 In all actions upon contracts for a principal sum and interest, interest, 
 both shall be included in the judgment up to the time when 
 the plaintiff is entitled to sign it ; for the interest is an 
 accessory to the principal, and he cannot bring an action for 
 any interest grown due between the commencement of his 
 action and the judgment in it (/). And this is the invariable 
 practice in actions on bills of exchange and other debts which 
 carry interest {g). 
 
 As an instance of probable future loss being taken into con- Probable 
 sideration, I may mention a case where the agreement was, that ^^'^^'^^ lo^s. 
 the defendant should appoint the plaintiff to the command of 
 one of his ships, which was chartered by the East India Com- 
 pany for two ^'oyages. It appeared that it would be discre- 
 tionary with the Company to allow him to command on the 
 second voyage ; but they generally permitted such appointments 
 to be renewed. It was held that the jury might give damages 
 for the loss of both voyages, though the time for the second had 
 not yet arrived (A). 
 
 The rule in all these cases seems to be, that general evidence Evidence of 
 of matter accruing subsequent to the action may be used for specific damage 
 the purpose of showing what was the natural and probable 
 result of the defendant's conduct ; but that particular facts are 
 not admissible, as a specific ground of damage to be atoned 
 for on their own account. Hence, in an action of libel against 
 a master of a ship, as to his way of business, evidence was 
 received of a falling off in the profits of his next voyage, 
 although it took place four months after action brought ; this 
 being merely a mode of estimating the damage likely to flow 
 from the publication of the libel (/). But in another case of 
 libel, it was held that evidence could not strictly be given of 
 a specific result, such as the arrest of the plaintiff subsequent 
 to the commencement of the suit, in consequence of the 
 defamatory words ; if, however, no objection was made by 
 defendant's counsel, it might fairly be left to the jury as 
 showing the probable effects of the libel, and would perhaps 
 prevent a second action (^')- 
 
 (/) Johnson v. Bland. 2 Burr. 10S7. 
 
 (jr) 2 Wms. Saund, 171 d, n. (.</). 2 Wins. Xotes to Sauud. 499. 
 
 {h) Richardson v. Mdlish, 2 Bing. 229. 
 
 (i) Inrjram v. Lawson. 8 Sco. All. 
 
 (k) Goslia v. Carry, 8 Soo. X. R. 21.
 
 106 
 
 GEXEllAL PKINCIPLtS OF DAMAGE. 
 
 Damage not 
 recoverable, 
 where 
 
 subsequent in- 
 jury not neces- 
 sary result of 
 defendant's 
 act, 
 
 or ground of 
 new action. 
 
 Nuisances, and 
 
 continuing 
 
 trespass. 
 
 On the other hand, where the damages subsequent to the 
 commencement of the action are not the necessary result of the 
 alleged wrong, or where they might be the foundation of a 
 fresh action, they cannot be included in the verdict of the jury. 
 
 The first point was the ground of the decision in HamUeion 
 V. Veere (/), where the action was for procuring the plaintiff's 
 apprentice to depart from his service, and for the loss of his 
 service for the whole residue of the term of his apprenticeship, 
 which had not yet expired. ■Greneral damages were given and 
 judgment arrested. Here it was not the inevitable result of 
 the defendant's act that the apprentice should continue per- 
 manently absent, because possibly he miglit return (m). And 
 so where the declaration was against an apprentice for going 
 away before his time, whereby the plaintiff lost his services for 
 the said term, which was also unexpired {n). This case would 
 also have been open to the second objection, viz., that a 
 fresh action would lie against him for every day he remained 
 absent, the contract being by deed, which remained binding on 
 both parties, notwithstanding a single breach of covenant (o). 
 
 Upon the second ground many cases have been decided. A 
 jDlain application of the rule was in a case where, upon the 
 execution of a writ of inquiry against the defendant for neces- 
 saries supplied to his sons, the jury took into consideration 
 goods furnished up to a date after the writ of inquiry (p). So 
 where in an action for false imprisonment, damages were given 
 for a continuance of the imprisonment after the commence- 
 ment of the action (q) ; for every instant of detention without 
 just cause is a new capture (r). In cases, too, of nuisances and 
 continued trespasses upon land, as each instant the nuisance 
 or trespass is continued is a fresh ground of action, it is clear 
 the jury could not formerly give damages beyond the com- 
 mencement of the existing suit (s). This rule is now some- 
 
 {l) 2 Wms. Saund. ]70. 2 Wms. Notes to Saund. 491. 
 
 (m) See jicr Littledale, J., 11 A. & E. 3U5. And so Lewis v. Peachey, 1 
 H. & C. 518 ; 31 L. J. Ex. 496. 
 
 (n) Horn v. Chandler, 1 Mod. 271 ; Leicis v. Peacliey, uhl supra. 
 
 (o) 11 A. k E. 304. 
 
 {jj) Baker v. Bache, 2 Ld. Raym. 1382. 
 
 {(I) Brai<fidd v. Lee, 1 Ld. Kaym. 32y : Hanhury v. Ireland, Cro. Jac. 
 618. 
 
 (r) Withers v. Henley, Cro. Jac. 379. 
 
 {s) Per Holt, G. J., Fetter v. Beale, 1 Salk. 11 : Bosewellv. Prior, 2 Salk.
 
 PERIOD UP TO WHICH DAMAGES ARE CALCULATED. 107 
 
 what modified by Ord. 3G, r. 58, wliich provides tliat " wliere 
 damages are to be assessed in respect of aoy continuing cause 
 of action, they sliall be assessed down to the time of assessment." 
 "Where, however, the original act done was itself a trespass, but 
 is done by a person or body who are protected by statute from 
 any suit for anything done under their powers, unless brought 
 within a particular time " after the act done," no suit can be 
 brought for any continuance of such trespass ; nor any conse- 
 quential damage resulting from it after the period of limita- 
 tion (/). It would follow, then, that damages in the first 
 action ought to constitute a full satisfaction for any injury 
 that could reasonably and naturally spring from it ; for other- 
 wise an injustice would be done to the plaintiff. And here a 
 curious difficulty might arise ; for, although no fresh action can 
 be brought after the period of limitation has run out, there is 
 nothing to prevent a series of actions being brought during this 
 period, since, except as ftir as the statute interferes, the case 
 would come under the rule as to continuing trespasses laid down 
 above {u). 
 
 In fact, the whole law upon the subject of damages in the Damages i?i 
 case of continuing nuisances or trespasses, seems iu a very un- ^^rnuisanciT"^ 
 satisfactory state. Suppose the defendant to have built a house 
 on the plaintiff's ground, this is a continuing trespass ; and 
 as long as it lasts the plaintiff may bring fresh actions, and 
 obtain fresh damages. Indeed he must do so, because ic 
 would appear each action can only reimburse him for the loss 
 sustained up to the assessment of damages. The defendant 
 cannot protect himself against this succession of attacks, because 
 even if it were his desire, it is not iu his power to enter the 
 
 460 : Holmes v. Wilson, 10 A. & E. 503 : Hudson v. Nicholson, 5 M. & W. 
 437 : Thompson v. Gibson, 7 M. & W. 456 : Battishill v. liccd, 18 C. B. 
 696 ; 25 L. J. C. P. |290 : Bankart v. Houghton, 28 L. J. Ch. 473 ; 27 
 Beav. 425. As to cases where the same act gives rise to several causes of 
 action, see Brunsdeii v. Buntphrey, 14 Q. B. D. 141 ; 53 L. J. Q. B. 471, 
 ante, p. 103. 
 
 (<) Wordsworth v. Harley, 1 B. & Ad. 391 : Ld. Oakley v. Kensington 
 Canal Co., 5 B. & Ad. 138. But where, in such a case, the maintenance of 
 works in an inefficient condition causes a recurring injury to the plaintiff, as, 
 for example, by flooding his colliery in rainy weather, a jury are not to give 
 damages on the assumption that the works will be continued in an inefficient 
 condition ; and a continuance of the wrongful act with fresh damages^will 
 constitute a fresh cause of action : Whitehouse v. Feliomts, 10 C. B. N. S. 
 765 ; 30 L. J. C. P. 305. 
 
 (m) Holmes v. Wilson, &.C., ante, note (s).
 
 108 GENERAL PRINCIPLES OF DAMAGE. 
 
 plaintiff's land and put an end to the nuisance himself {x). 
 The fair rule in such a case would be, to give the plaintiff such 
 damages as would compensate him for the loss sustained up to 
 the time of verdict, and would pay him for putting the land 
 into its original state. If he chose to leave the trespass after 
 this, it would clearly be because he thought it advantageous to 
 himself ; and if so, he ought not to be allowed to sue again. 
 There is one case which is almost in accordance with this view. 
 It was an action on a covenant to repair premises, and judg- 
 ment for plaintiff on demurrer. The premises had got into 
 worse repair since the commencement of the action, and the 
 jury, in assessing damages, computed the expense the plaintiff 
 had been at in doing repairs which became necessary between 
 action brought and writ of inquiry. The judgment upon this 
 point was affirmed in error {y). It is quite clear in this case 
 that there was a new breach of covenant in allowing the pre- 
 mises to go into worse repair since the issuing of the writ, for 
 which a new action might have been brought, and new damages 
 recovered. The jury, however, took the common sense view 
 of the matter, and gave, as every jury practically does, such 
 damages as would reimburse the plaintiff for all loss incurred 
 up to the time the case came under their cognisance. 
 Liability to pay Where the wrong complained of has involved the plaintiff 
 allcw^d'^or ^"^ ^^ ^ \QgQ\. liability to pay money to a third party, the amount 
 of this liability may be included in the damages, though not 
 yet paid by the plaintiff (r). But it is otherwise where the ob- 
 ligation, though a moral, is not a legal one. Therefore, where 
 the declaration was for wounding the plaintiff's son, whereby 
 the plaintiff had been put to great expense in medicines, &c., 
 for his cure ; it was held, that as to the surgeon's bill, the 
 jury were to consider the amount as paid by the plaintiff, 
 since the surgeon could compel the payment of it ; but that 
 the physician's fees could not be taken into account, since 
 they had not been actually paid, and he could not enforce 
 them («). 
 
 (x) Anthony v. IJaney, 8 Bing. 186. 
 
 (,(/) Skortridge v. Lamplurjh, 2 Ld. Raym. 803. 
 
 (z) Mason v. Barker, 1 (J. & K. 100, 101 : :<mith v. Iloivell, 6 Ex. 7-30 : 
 Randall v. Raptr, E. B. & E. 84 ; 27 L. J. Q. B. 266. 
 
 (a) Dixon v. Bell, 1 Stark. 287. Now by 21 k. 22 Vict. c. 90, s. 31, phy- 
 sicians, if registered, may recover their fees under a bye-law of the College of
 
 MITIGATION OF DAMAGK. 109 
 
 As to the consequence of a declaration claimint,^ on its face 
 damages for a period after action, or before the cause of action 
 arose, see post, p. 5GG. 
 
 IV. It now remains to discuss the cases in which evidence Mitigation of 
 may be given in mitigation of damages. damage 
 
 The leading principle upon this question is, that matter must be 
 which if pleaded would have gone in bar of the action, can- pleaded if 
 not be given in evidence to reduce damages unless pleaded. ^^^''^^ 
 Therefore where the action is for wrongfully discharging the 
 plaintiff" from the defendant's service, and the defendant only 
 pleads payment into Court, he cannot show, in mitigation of 
 damages, that he discharged the plaintiff for misconduct. 
 In an action of assault against the sheriff j if he pleads not 
 guilty only, he cannot for the same purpose give evidence of 
 his writ (b). So wlicre the action was against a captain of 
 a ship for assault and imprisonment, evidence that the plain- 
 tiff" was one of the crew, and that the acts charged were a 
 punishment for his misconduct, was excluded (c). Nor in 
 trover can the defendant under not guilty be allowed to set up 
 title in a third party (d) ; nor in trespass, a recovery of 
 damages against a co-trespasser who is not sued (e) ; nor 
 in an action for goods bargained and sold, that there was a 
 false representation as to their quality, without a special 
 plea (/). The case of payment, which had caused some Payment after 
 contradictory decisions when it took place after action action. 
 brought (g), was provided for by two rules of Court (h), which 
 enacted, that payment should not in any case be allowed to be 
 given in evidence in reduction of damages or debt, but should 
 be pleaded in bar ; and that pleas containing a defence arising 
 after the commencement of the action, might be pleaded to- 
 
 Physicians, passed under this section. Fellows of the College are prevented 
 from suing, but this does not extend to members. See Gibbon v. Budd, 
 2 H. & C. 92 ; 32 L. J. Ex. 182. 
 
 (6) Speck V. Ph'llips, 5 M. & W. 279, 281. 
 
 (c) Watson v. Christie, 2 B. & P. 224. And see Pujolas v. Holland, 3 Ir. 
 L. R. 533. 
 
 (d) Finch V. Blount, 7 C. & P. 478. 
 
 (e) Day v. PoHer, 2 M. & Rob. 151. 
 (/) Woodhouse v. Swift, 7 C. & P. 310. 
 
 (g) See Lediard v. Boucher, 7 C. & P. 1 ; Shirley v. Jacobs, 2 B. N. C. 
 88 ; Richardson v. Robertson, 1 M. & \V. 463. 
 
 (A) PI. Rules, T. T. 1853, 14, 22. The present practice is the same. Ord. 
 24,. R. 1.
 
 110 
 
 GENEKAL PRINCIPLES OF DAMAGE. 
 
 Evidence not 
 to operate as a 
 cross action. 
 
 Collateral 
 matter not ad- 
 missible to re- 
 duce damages. 
 
 gether with pleas of defence arising before the commencement 
 of the action (/). 
 
 The sole object intended to be effected by allowing this 
 species of evidence, is to arrive on the whole at the real 
 worth of the article furnished, where the action is for the price 
 of goods or the like ; or the actual damage resulting in the 
 first instance from the defendant's act. This only ought to 
 be paid for. The admission of the evidence is not allowed to 
 operate as a cross-action for any purpose beyond this. There- 
 fore in an action for the price of a ship, which was not built 
 according to specification, the defendant might show how 
 much less it was worth in consequence of the breach of con- 
 tract ; but he could not show damage resulting from this 
 breach, and the cost of necessary repairs in consequence. 
 This required a separate action {Ic). And so in an action by 
 a broker for money paid for shares, the defendant was not 
 allowed to set up a conversion of the shares by the broker (7). 
 Xor can he show quite an independent breach of contract by 
 plaintiff" after action brought. Thus in an action against the 
 defendant for not paying for goods at the period agreed on, 
 he could not show in reduction of damages, that the i^laintiff", 
 after action brought, had refused to deliver the goods, such 
 delivery not being a condition precedent to his obligation to 
 pay {m). Still less can matter completely collateral, and 
 merely res inter alios acta, be so used. Hence where the 
 defendant was sued for injuring the plaintiff's ship, or the 
 plaintiff himself by negligence, he could not obtain a reduction 
 of damages on the ground that the plaintiff had recovered from 
 the insurers {n). This would be to allow the wrong-doer to 
 pay nothing, and take all the benefit of a policy of insurance 
 without paying the premium. On the same principle it would 
 be no defence in an action against an annuitant, or any other 
 debtor, that the value of the annuity had been recovered 
 against the plaintiff's attorney in an action for negligence in 
 
 (0 See 5 M. & W. 282. 
 
 (^•) Mondel v. Steel, 8 M. & W. 858. JVow it could be done by a counter- 
 claim. 
 
 [I) Francis v. Baker, 10 A. & E. 642. 
 
 (vi) Bartlett v. Holmes, 13 C. B. 630 ; 22 L. J. C. P. 182. 
 
 (n) Yates v. W/tyte, 4 1). N. C. 272 ; affirmed in Simpson v. Thompson, 
 3 App. Cas. p. 285 ; Bradburn v. G. W. Ry. Co., L. R. 10 Ex. 1 ; 44 L j' 
 Ex. 9.
 
 MITIGATION OF DAMAGE. 
 
 Ill 
 
 dicta. 
 
 its negotiation, or that the sheriff had been forced to pay the 
 debt in an action for an escape (o). And where a number of 
 plaintiffs sued for damag-es resulting from the delaying of their 
 ship, it was held to be no ground for reducing the damages 
 that some of these plaintiffs had benefited by getting an in- 
 crease of passengers in another ship. And the Court said the 
 result would have been the same if there had been only one 
 plaintiff, who was the owner of both ships (;;). 
 
 There are dicta of two eminent judges which seem to con- Conflicting 
 tradict this rule. Trover was brought against the purchasers 
 of goods which had been wrongfully sold by the master of the 
 ship. The purchasers pleaded a former recovery by the plain- 
 tiffs against the shipowners. It appeared that the latter, in the 
 action against them, had suffered a verdict to the value of the 
 ship and freight under 53 G. III. c. 159, which was far less than 
 the value of the goods sold. Bayley, J., said, " Independently 
 of the statute, the jury were not bound to make the fall value 
 of the goods the measure of the damages in the former action ; 
 they might reasonably give small damages on the ground that Chance of 
 
 . , -. ,. . 1 1 1) A 1 XT 1 Tr;i T recovering 
 
 an action would he agamst the purchasers. And Holroya, J., against third 
 concurred, saying, " The probability of a recovery in an action parties. 
 against this defendant might keep down the damages on the 
 count of trover. In an action against a sheriff for an escape, 
 small damages are often given on the ground that the debt 
 is not extinguished ; and the whole amount may afterwards 
 be recovered, notwithstanding the recovery against the 
 sheriff" {q). I apprehend, however, with great submission 
 that these dicta cannot be relied on. They were quite un- 
 necessary to the decision. That relating to the sheriff is 
 clearly contrary to modern decisions ; for it has been expressly 
 ruled that the true m2asure of damage is the value of the 
 custody of the debtor at the time of the escape, and no deduc- 
 tion ought to be made on account of anything which the 
 plaintiff might have obtained by diligence after the escape (r). 
 On principle, too, the doctrine ssems equally unsustainable. 
 
 (o) Hunter v. King, 4 B. & A. 209. ^ ^ ^ ^ 
 
 (p) Jebsen v. E. & W. India Bock Co., L. R. 10 C. P. at p. 305 ; 44 L. 
 
 J C P 181 
 ' iq) Morris v. RMnson, 3 B. & C. 196, 205,206. 
 (r) Arden v. Goodacre, 11 C. B. 371; 20 L. J. C P. 184. ?>q& post, 
 
 p. 462.
 
 112 
 
 GENERAL PRINCIPLES OF DAMAGE. 
 
 flatter sub- 
 sequent not 
 ground for 
 reducing 
 damages in 
 contract. 
 
 Every man must pay for the damage caused by his own act. 
 How can this damage be lessened by the fact that the plaintiff 
 might have sued others if he had chosen ? The law says, you 
 may exact satisfaction from any one of the parties who have 
 injured you. What right have the jury to say, you shall 
 only get satisfaction by suing all ? In cases of tort the law- 
 says, damages shall not be apportioned among the wrong- 
 doers (s). How can the jury say that they shall ? Finally, 
 could any judge leave to the jury, as relevant evidence, facts 
 goiog to show the collateral liabihty of other parties ? If so, 
 must he not also admit evidence to show that they were not 
 liable, and if liable not solvent, and if solvent out of the 
 jurisdiction ? The case seems almost to come to a recludio ad 
 aJjsurdum. 
 
 Two cases which are frequently cited seemed to be reducible 
 to the same rule as to the inadmissibility, in reduction of 
 damages, of extrinsic matter arising subsequent to the cause of 
 action. In one it appeared that the bankrupt had deposited 
 with the defendants, his bankers, a sum of money for the 
 specific purpose of meeting some bills. He was at the time 
 indebted to them in a greater amount than the sum deposited. 
 Instead of applying the money as directed, the defendants 
 placed it to his credit with themselves ; the bills were dis- 
 honoured at maturity, and the action was brought by the 
 assignees in bankruptcy, for breach of the agreement, to re- 
 cover the money. It was held that they might recover it all ; 
 that as soon as the defendants refused to apply the money to 
 the use dii'ected, they were liable to be sued for it in an action 
 for money had and received ; that in such an action the fact 
 of his being indebted to them would only be material as 
 entithug them to a set-off ; and that as they could not avail 
 themselves of this in answer to an action of special assumpsit, 
 it could not be used in reduction of damages {t). In the 
 other case, the bankrupt had given the defendant a bill, drawn 
 by himself for GOO/., which the defendant agreed to discount, 
 retaining 100/. and the discount. He never paid the bankrupt 
 anything. The action was, as in the former instance, by the 
 assignees in bankruptcy, for breach of the agreement. The 
 
 (s) Merryweather v. Nixan, 8 T. R. 186. 
 (0 Hill V. Smith, 12 M. & W. 618.
 
 MITIGATION OF DAMAGE. 113 
 
 jury gave a verdict for •1957., being the amount of the bill, 
 minus the 1007. and discount at 107. per cent. This was held 
 to be correct, although the bill had become worthless in conse- 
 quence of the bankruptcy. Pollock, C.B., said, " If this had 
 been an action of trover for the bill, no doubt it would have 
 been altogether a question for the jury as to the amount of 
 damages. So also, if it had been an accommodation bill, or the 
 bankrupt's own bill. But this is not a case of trover, but of 
 breach of contract. The defendant promised to deliver to the 
 bankrupt the amount of the bill, minus lOO/. and discount. 
 The bankrupt would have to receive that sum, and his assignees 
 are entitled to recover the same amount which he would have 
 been entitled to receive, had he continued solvent, by reason 
 of the breach of contract" {u). 
 
 It need hardly be stated that evidence can never be admitted :\rust not con- 
 for this purpose which contradicts any established principle of ^^f''e\.]deu(.e?''' 
 law. For instance, where defendant hy uriting agreed to grant 
 a good and valid lease of premises to the plaintiff, in a suit for 
 breach of this agreement, parol evidence that the plaintiff 
 knew that a good title could not be made out, was properly 
 rejected (r). Xor is the rule extended to actions for the Attorney's bill 
 amount of an attorney's bill {ij), unless no benefit whatever e°cepSs'\o"' 
 has been derived from it, nor to actions for freight, although general rules. 
 the defendant had been put to considerable expense in con- 
 sequence of an unauthorised deviation {z) ; or even where the 
 goods had been injured by bad stowage to an extent much 
 beyond the amount of the freight {a). These two exceptions 
 seem not to rest upon any principle whatever, but they have 
 been recognised as existing exceptions by the Court of Ex- 
 chequer {h). Where, however, some particular items in an 
 attorney's bill refer to one separable transaction, and can be 
 shown to have been uselessly incurred, they may be resisted on 
 this ground {c). 
 
 (m) Alder X. KcUihhy, 15 M. & W. 117, 119. 
 {x) Ilohinson v. Harman, 1 Ex. S50. 
 ly) Templcr v. M'Lachlan, 2 B. & P. N. R. 136. 
 (z) Bornmann v. Tonke, 1 Camp. 377. 
 
 (a) Shcels v. Da vies, 5 Camp. 119. 
 
 (b) 8 M. & W. S71> 
 
 (c) Hill V. Fcatherstonhnur/h, 7 Bing. 569 : Shaw v. Ardcn, 9 Bing. 2S/ : 
 Long V. Orsi, 18 C. B. 610 ; "26 L. J. C. P. 127 : Cox v. Leech, 1 C. B. N S 
 617; 26 L. J. C. P. 125. 
 
 M.D. I
 
 114 
 
 GENERAL PRINCIPLES OF DAMAGE. 
 
 Ert'cct of pay- 
 ing money 
 into Court. 
 
 General rules 
 as to admissi- 
 bility of 
 evidence in 
 reduction of 
 damages. 
 
 There is one case in which Lord Ellenborough held at Nisi 
 Prius, that where goods had been sold to defendant by sample 
 at a stipulated price, and an action of indebitatus assumjjsit 
 was brought against him, he could not after paying money into 
 Court, insist on any defect in the goods (d).—lt is submitted, 
 however, that this decision is not law. It could only be 
 founded on the idea that by paying money into Courb the 
 defendant admitted his liability upon the particular contract 
 which the plaintiff meant to set up. But it is now settled, 
 after some conflicting decisions, " that this plea amounts to no 
 acknowledgment whatever by the defendant beyond this, that 
 by force of some contract he is bound to pay the plaintiff 
 something on the count for goods sold. But the plaintiff 
 cannot apply that admission to any particular contract which 
 he may wish to select, any more than the defendant " (e). In 
 the case referred to, the defendant was clearly liable on a 
 quantum meruit, as he had kept the goods. He was not liable 
 on the special contract, as it had been broken, and his 
 plea did not amount to any confession that he was still 
 bound by it. 
 
 Lastly, a defendant cannot resist, or reduce the amount of a 
 claim upon himself, by raising a question affecting the rights 
 of others, and of the general public, the decision of which has 
 been delegated by the state to a special tribunal constituted for 
 that purpose. For instance, by setting up against the charges 
 of a railway that they were unreasonable, and amounted to an 
 undue preference within the meaning of the Kailway and 
 Canal Traffic Act (/). 
 
 Having now cleared away the cases in which evidence is not 
 admissible in reduction of damages, we may proceed to point 
 out those in which it is. Upon this subject the law has under- 
 gone considerable change. Formerly where the action was for 
 the agreed price of a specific chattel, sold with a warranty, or 
 of work which was to be performed according to a contract, 
 the defendant was never allowed to give its inferiority in 
 evidence, but was forced to pay the stipulated amount, and 
 
 (d) Legrjett v. Cooper, 2 Stark. 103. 
 
 (e) Per Alderson, P.., Kinf/hatn. v. RoUns, 5 ]\r. & W. 04, 102. 
 
 (/) Lancashire ct Yorkshire Rij. Co. v. Grecmcood, 21 6. 13. D. 215 ; 58 
 J. Q. B. 16.
 
 REDUCTION OF DAMAGES, 115 
 
 reimburse himself by a cross-action. But it is now settled, 
 that whether the action is for the price of a specific chattel {(j), 
 or of unascertained goods {h), sold with a warranty ; or is 
 brought on a special contract to pay for goods (*) or work (/r) 
 at a certain price ; or upon a quanfum meruit, for work and 
 labour done, and materials found (/) ; or for the value of the 
 plaintiff's services {m) ; the defendant may show the actual 
 value of the goods, work, services, &c., and reduce the claim 
 accordingly. So when a plaintiff contracts for a fixed sum to 
 do work and find materials, and part of the work is afterwards 
 done by the employer {n), or part of the materials are supplied 
 by him, and used by the plaintiff, he is entitled to a deduction 
 to this extent without pleading set-otf {o). If it is part of the 
 contract between a servant and his master that the former is to 
 pay out of his wages the value of his masters goods, lost by his 
 negligence, this amounts to an agreement that the wages are 
 to be paid only after deducting the value of the things lost. 
 Such a state of things may be given in evidence under the 
 general issue, and does not require a pka of set-off {p). And so 
 where, by the custom of the hat-trade, the amount of injury 
 sustained by the hats in dyeing was deducted from the dyer"s 
 charges, evidence of injury from this cause ^was admitted in 
 reduction of damages (</). 
 
 Assuming then that in such cases a reduction might be made, rrindple upon 
 
 . . , ■ • 1 1-11 wliieli rediic- 
 
 ii further question arises as to the principle upon which such a ^._^^^ ^^ ,^^ 
 reduction should proceed. In the great majority of cases the maac. 
 simple rule has been to allow for tlie article as much as the 
 jury should find it was worth. But there are two cases in which 
 a different principle was adopted. The one was a contract for 
 supplying a chapel with hot air (?•) ; the other was for slating 
 
 (</) Street v. Blmj, 2 B. & Ad. 456 : Parsons v. Sexton, 4 C. B. 899. 
 
 (A) Poulton V. Lattimore, 9 B. & C. 259. 
 
 (i) Cousins V. Paddon, 2 C. M. & R. 547 : Milner v. Tucker, 1 C. & 1 . 
 15. 
 
 (k) Chapel v. Iliclccs, 2 C. & Rf. 214. 
 
 {/) Bastcn v. Butter, 7 East, 479 : Farnswortli v. Garrard, 1 Camp. db. 
 
 (m) Deneio v. Daverell, 3 Camp. 451 : BailUe v. Kdl, 4 Bing. N. C. 638. 
 
 (n) Turner v. Diaper, 2 :M. & Gr. 241. 
 
 (o) Newton, v. Fonter, 12 ^\. k W. 772. 
 
 {p) Per Lord Ellenborough, Le Loir v. Bristow, 4 Camp. 134 : scmbcc 
 Cleworth V. Pickford, 7 M. & W. 314. 
 
 (7) Bamford v. Narri.t, 1 Stark. 343. 
 
 (r) Cutler v. Close, 5 C. & P. 337. 
 
 I 2
 
 116 GENERAL PRINCIPLES OF DAMAGE. 
 
 a house (s). In both cases the work had not been done 
 according to contract, and it was hiid down by Tindal, C. J., 
 and Parke, B., that the measure of reduction should be the 
 necessary cost of making the work conform to the contract. It 
 is evident that this rule differs very much from the former one. 
 A thing may be very valuable in itself, but if it is to be altered 
 into something different, the cost of doing so may absorb its 
 whole price. Which rule is correct ? It is suggested that both 
 rules may be so, according to the cases to which they are 
 applied. One important element in this inquiry will bo, could 
 the subject-matter of the contract have been returned or not ? 
 If it could, then, as the defendant has kept it of his own free 
 will, he ought to pay for it as much as the plaintiH" could have 
 sold it for, if he had taken it back ; that is, its real value. But 
 there are two cases in which the defendant cannot return it. 
 The one is where the sale is of a specific chattel, upon which 
 the owner has had an opportunity of exercising his own judg- 
 ment, and which is bought with a warranty (t). The other, 
 where labour has been expended upon the defendant's own 
 property, as, for instance, his materials or his land. In the 
 latter case the thing done may in itself possess very great 
 intrinsic value, as, for instance, if a tailor should cut cloth into 
 a coat which would fit any one but the owner, or a builder 
 should erect a coach-house where he had been directed to make 
 a stable. But it is clear that the thing would in neither case 
 be of any value to the owner, till it was altered into what he 
 wanted. The cost of altering it would be the only fair measure 
 of reduction. It will be observed that both the cases cited 
 come under this latter head. 
 !=^:ile of specific 'The former case, viz., the sale of a specific chattel with 
 chattel with warranty, would admit of different considerations. It might be 
 
 varranty. . i • -i i i • n • 
 
 Utterly mipossible to alter it, as, tor instance, to change a nack 
 into a hunter. The question would then be, what was it worth 
 to the purchaser as it was. This would depend upon what he 
 could get for it, and so would come under the former rule as to 
 real value. On the other hand it might be capable of altera- 
 
 (s) Thornton v. Place, 1 M. & Rob. 218. 
 
 {t) Parsons v. i-cxton, 4 C. 13. 899 : Dawson v. CoUis, 10 C. B. 523 • "^0 
 L. J. C. P. lie.
 
 REDUCTION OF DAMAGES. 117 
 
 tioQ at a veiy exorbitant cost, as, for instance, a defective 
 machine. Ought the purcliaser to sell it for what it would 
 fetch, supposing it to be useless to him in its present condition, 
 or may he alter it to suit his requirements ? This would 
 probably depend upon the facts of each case. If he could with- 
 out very great loss and inconvenience procure another, it would 
 perhaps be held that he ought to do so, and that great expense 
 incurred in alterations could not be treated as the necessary 
 result of the plaintilf's breach of warranty, when by a smaller 
 outlay he could have obtained a perfect article. But it might 
 be impossible to procure another, or the cost and delay ]night 
 be so great as to warrant him in altering at a very great 
 expense ; if so, it might fairly be held that the exception 
 laid down in the above cases applied, and that the measure 
 of reduction was the cost of alteration. It must be owned, 
 however, that such a case would hover upon the limits of the 
 rule laid down against reduction of damages in Mondel v. 
 Steel (ti). 
 
 In the cases hitherto under discussion the plaintiff has been Evidence in 
 claiming payment on account of something done by him for ""tigation of 
 
 , 1 ,.' 1 1 , . 1 1*1 apparent in- 
 
 the deiendant, and the evidence has gone to show that the jury inflicted 
 
 defendant had not received all the benefit for which he had by defendant. 
 
 bargained. On exactly the same principle, where the action 
 
 is to recover damage for some loss arising from the defendant's 
 
 acts, evidence is admissible to show that the injury is not so 
 
 great as would at first appear {x). For instance, where the 
 
 action was for breach of an agreement to build upon land, the 
 
 defendant was allowed to show that the plaintiff had re-entered 
 
 upon it under the covenant, and let it to another tenant (//). 
 
 And where the plaintiff has given the defendant an indemnity Indemnity. 
 
 against the very demand for which he is suing, such indemnity 
 
 is a bar to the action, if it goes to the entire claim (z), and 
 
 («) Ante, p. 110. 
 
 (x) In Work-man v. G. -V. iJy. Co., 32 L. J. Q. B. 279, in consequence of 
 the defendants' embankment the flood-waters of a river were put back and 
 flowed over the plaintiff's land. Had the embankment not been constructed 
 the waters would have flowed a different way, but would have reached the 
 land and done damage to a lesser amount. The measure of damages was held 
 to be the difference only between the two amounts. See, too, N itrophosphatc 
 Co. V. London d: St. Catherine Docks, 9 Ch. D. 503. 
 
 {y) Oldershaw v. Holt, 12 A. & E. 590. 
 
 (z) Cannop v. Levy, 11 Q. B. 769.
 
 118 
 
 GENERAL PKINCIPLES OF DAMAGE. 
 
 Trover. 
 
 Tresjiass. 
 
 Crim. con. 
 
 Bread) of 
 proinise of 
 marria£;e. 
 
 Injury in- 
 creased 1)\' 
 plaintitf's 
 conduct. 
 
 of course would be admissilile iu reduction of damages if it 
 only went to part. So in trover, though the cause of action 
 is complete upon proof of conversion, still if the defendant 
 after using the goods has returned them (a), or has paid over 
 part of the proceeds to the plaintiff, this will go in reduction 
 of damages {h). And in trespass against an executor de son 
 tort, payments made by him in a due course of administration 
 and which go to exonerate the estate, shall be recouped in 
 damages (c). 
 
 For the same reason, formerly, in actions of crim. con., any 
 evidence which went to show that the husband had suffered a 
 comparatively trifling loss in respect of his wife, either on 
 account of her own worthlessness, previous to the defendant's 
 acquaintance with her {(J), or his own want of affection for her (e), 
 or the slight amount of intercourse that subsisted between 
 them (/), was admitted to reduce the damages ; so in actions 
 for breach of promise of marriage, proof may be given that the 
 plaintiff was utterly unfit to appreciate the person to whom he 
 had engaged himself (g), or that the defendant's family dis- 
 approved of the match, for this would naturally diminish the 
 happiness to be expected from it (A). 
 
 So where the defendant has been in the wrong, but the 
 injury resulting from his conduct has been increased by that of 
 the plaintiff ; as, for instance, in an action against the sheriff 
 for an escape ; if he has done anything to aggravate the loss 
 occasioned by the defendant's neglect, or has prevented him 
 from retaking the debtor, the damages would be materially 
 affected by such conduct (/). Similarly, where, in consequence 
 of a change of circumstances, the defendant's breach of contract 
 has not produced the full damage which the contract originally 
 provided against, only the loss which has actually been incurred 
 can be recovered (/"). 
 
 (a) Cook V. Ilartic, 8 C. & P. 568. 
 lb) Burn V. Morris, 2 C. & M. 579. 
 
 (c) Mountford v. Gibson, 4 East, 441, ^. 447. 
 
 (d) Smith V. AUiMTi, B. N. P. 27. 
 
 (e) Duberley v. Gunning, 4 T. K. 655 : Brondey v. Wallace, 4 Esjx 237. 
 (/) Calcraft v. Ld. Harborough, 4 C. & P. 499. 
 
 {g) Leeds v. Cook, 4 Esp. 256. 
 (h) Irving v. Greenwood, 1 C. & P. 350. 
 
 (i) Arden v. Goodacre, 11 C. B. 371, 377 ; 20 L. J. C. P. 184. 
 (k) Wigsell v. Corporation of the School for Indigent Blind, 8 Q. B. D. 
 357.
 
 SET-OFF. 
 
 119 
 
 Of course in all cases where motive may be ground of 
 aggravation, evidence on this score will also be admissible in 
 reduction of damages. Hence in an action for false imprison- False imprison- 
 ment, evidence may be 'given of a reasonable suspicion that ""^^ ' 
 the plaintiff had been guilty of felony, without any attempt 
 at setting up a justification (/). And if the plaintiff was given 
 into custody for an offence not justifying an arrest, evidence 
 may be given of the offence (m). It is in the nature of an 
 apology for the defendant's conduct (n). And so in cases of Libel. 
 libel, the defendant may give any evidence in reduction of 
 damages which goes to prove the absence of malice (o), or he 
 may show previous provocation received from the plaintiff (jj)). 
 And in actions of seduction, the offence may be deprived of its Siduction. 
 wanton and heartless aspect by showing the loose character of 
 the female {q). 
 
 It would be easy to multiply illustrations upon all the heads 
 just mentioned. Those adduced, however, are sufficient to 
 explain the principles upon which damages may be reduced. 
 AVe shall have occasion to go more fully into the subject in 
 discussing the different species of actions. 
 
 The law of set-off never came strictly within the scope of a Set-off. 
 work on damages, since it was merely a cross-action, which, by 
 means of a statute, might be tried at the same time with the 
 principal suit (r). Still it was a means by which the plaintiff's 
 claim might be cut down or negatived ; and as the demands 
 which might be set up against him, had been well defined by a 
 succession of decisions, it was thought as well to point out the 
 chief bearings of the subject in the earlier editions of this 
 Avork. Since then, the power of advancing counter-claims 
 lias been so much extended that most of the rules relating to 
 set-off are obsolete. So much only is therefore retained here of 
 what appeared before as may be useful until the new practice is 
 settled. 
 
 (l) Ckinn V. Morris, 2 C. & P. 361. 
 
 (m) Linford v. Lake, ?> H. & N. 276 ; 27 L. J. Ex. 334. 
 
 (n) Per Lord Abinger, Waruick v. Foidkcs, 12 M. & W. 507. 
 
 (o) Pearson v. Lemaitrc, 5 M. & (i. 700. See as to the particulars to be 
 given before the trial, 0. 36, R. 37. 
 
 (p) May V. Brown, 3 B. & G. 113. 
 
 (q) Bamficld v. Masscy, 1 Camp. 460 : Dodd v. Karris, 3 Camp. 519. 
 
 (r) The law of set-oif is a matter of procedure, and governed by the law of 
 the country where the remedy is sought. Slinison v. Hall, 1 H. & N. »31 ; 
 26 L. J. Ex. 212 : Dakin v. 'Oxley, 15 C. B. N. S. 646 ; 33 L. J. C. P. 289.
 
 120 
 
 SET-OFF. 
 
 No set-off in 
 actions for 
 unliquidated 
 (lania^e. 
 
 Jiuk'ment, 
 
 Under the statutes of set-off (s) debts only could be set-off; 
 or be set-off against. This restriction no longer exists. Claims 
 can now be set-off or set against one another whether they 
 sound in damages or not (t). 
 
 A judgment obtained by one party might be set off against 
 an action by the other party (?/), or against another judgment, 
 notwithstanding the plaintiff might also have a separate de- 
 mand on one of the defendants (.r), and though the judgments 
 Avere in different Courts (//). Xor did it make any difference 
 that a writ of error was pending to reverse the judgment {z). 
 A verdict before judgment could not be set off (a) ; and in such 
 a case the Court would not stay proceedings, until a motion 
 for a new trial had been disposed of, in order to enable the 
 defendant to sign judgment, and set off his damages and costs 
 against the costs of the action (b). Still less would they stay 
 execution on a judgment that had actually been obtained, 
 until a cross action was determined, that one might be set off 
 against the other (c). "Where a creditor had taken his debtor 
 in execution, this operated as an election binding the judgment 
 creditor to enforce his claim by that means and no other. 
 Therefore he could not plead the judgment debt by way of 
 set-off to an action by the debtor for a separate and distinct 
 matter (d). And the rule was the same when the prisoner was 
 discharged by consent of the creditor, upon giving a fresh 
 sscurity for the judgment, even though the security itself proved 
 void on account of some informality (e). The judgment debt, 
 however, still subsisted ; and if the debtor had a cross claim 
 against the creditor for costs in the same action, whether the 
 claim accrued before or after the judgment, the Court would in 
 
 is) 2 G. II. c. 2-2, s. 13, and 8 G. II. c. 24. 
 
 (t) Judicature Act, 1873, s. 24, sub-s. (3). Ord. 19, K. 3. See Stook v. 
 Taijlor, 5 Q. B. 1). 569 : 49 L. J. Q. B. 857, as to tlie difference 
 between a set-off and a counter-claim in its effect upon the plaintiff's costs. 
 
 (u) Stanton v. Styles, 5 Ex. 578. 
 
 (x) Glaister v. Heivcr, 8 T. R. 69. 
 
 iy) Barker v. Braham, 3 Wils. 396 : Bi-idges v. Smyth, 8 Bing. 29. 
 
 (z) Reynolds \. Becrlinr/, 3 T. R. 188, n. An appeal now docs not operate 
 as a stay of proceedings, except Ly order. Ord. 58, R. 16. 
 
 (a) Garrick V. Jones, 2 Dowl. 157. 
 
 (h) Johnson v. Lakcman, 2 Dowl. 646. 
 
 (c) Williams V. Cooke, 10 Moo. 321. 
 
 (d) Taylor v. Waters, 5 M. & S. 103. 
 
 (e) Jacques v. JFttky, 1 T. R. 557.
 
 SET-OFF. 121 
 
 the exercise of its equitable powers, restrain the debtor Irom 
 enforcing his cUiim, unless he paid the judgment debt, or 
 allowed it to be set off against the claim (/). 
 
 A distinction also exists between the statutory right to set 
 off a judgment by way of defence to an action, and the appeal 
 to the equitable jurisdiction of the Court to allow such set-off 
 in execution proceedings, where the effect of the set-off would 
 be to destroy the attorney's lien for costs. In the latter case, 
 the Court refuses to exercise its power of allowing a set-off, 
 unless the attorney's costs are first satisfied. In the former 
 case, the defence, being one of strict right, must be allowed (f/). 
 
 Money due under an order of Nisi Prius might be set Order of Nisi 
 
 ft? / 7 \ Prius. 
 
 off (A). 
 
 It was held to be no answer to a plea of set-off, that the Set-off wiiere 
 money for which the action was brought was lent, or the goods pj-omWes^to 
 delivered, upon an express promise to pay ready money (*j. pay ready 
 But where there bad been such a promise, an otfer to set off" a 
 debt did not entitle a party to bring trover for the goods, before 
 the lien of the holder was satisfied (Jc). 
 
 A debt, to be set off under the statutes of set-off, and also it Debt must 
 would seem under the Judicature Acts, must be one which can 
 be enforced by suit. Therefore a debt arising upon the 
 promise of an infant, which has not been ratified under the 
 provisions of 9 G. IV. c. 14, s. 5, cannot be set off (/). It 
 must also, under the statutes of set-off, be completely due at the 
 time of action brought {m). Therefore a note could not be 
 set off before it had reached maturity (n). Nor a judgment 
 which was recovered after the commencement of the suit, but 
 before plea (o). But although an attorney cannot maintain an 
 action on his bill of costs, till one month after delivery, it may 
 
 money. 
 
 be due. 
 
 (/•) Thompson v. Parhh, 5 C. B. N. S. 685 ; 28 L. J. C. P. 153. 
 
 Oj) Mercer v. Grares, L. R. 7 Q. B. 499 ; 41 L. J. Q. B. 212 : Fringle v. 
 GhcKj, 10 Gh. D. 67t) ; 48 L. J. Cli. 38 : Edwards v. Hope, 14 Q. B. D. 
 922 ; 54 L. J. Q. B. 379 ; 0. Go, R. 14, As to setting-off damages and 
 costs in equity, see Throckmorton v. Crawley, L. R. 3 Eq. 196 : £x parte 
 Cleland, L. R. 2 Ch. 808. 
 
 (A) Xewtun v. Newto7i. 8 Bing. 202. 
 
 (/) Lechmcre v. Haickins, 2 Esp. 626 : Cornforth v. Rivclt, 5 M. & S. 
 510. 
 
 (k) Clarke v. Fell, 4 B. & Ad. 404. 
 
 {I) liawlcy V. Rawley, 1 y. B. D. 460 ; 45 L. J. Q. B. 6/o. 
 
 (r/i) Braithivaite v. Coleman, 4 N. & ^l. 654. 
 
 (n) Jlofjerson v. Ladbroke, 1 Bing. 93. 
 
 (o) Evans v. Prosser, 3 T. R. 186,
 
 12: 
 
 SET-OFF. 
 
 Semhle, 
 counter-claim 
 must be 
 complete. 
 
 Must remain 
 <lue. 
 
 ]\Uist be due 
 in the same 
 right. 
 
 Parties to 
 claim and 
 counterclaim 
 need not be 
 identical. 
 
 be made the subjecfc of set-off, if delivered less than a month 
 before the action against him was commenced, provided sutfi- 
 cient time has elapsed to allow of its being taxed {f), or even 
 though no bill has been delivered, the Court having power in 
 case of hardship to stay proceedings, so as to allow proper taxa- 
 tion before trial {q). 
 
 There does not appear to have been any decision yet whether 
 a claim, which can be set up by counter-claim, must have been 
 complete at the time when the action was commenced, or 
 whether it is sufficient if it matured before the date of the state- 
 ment of defence and counter-claim. Seeing that the counter- 
 claim is to have the same effect as a statement of claim in a 
 cross action, it would seem that the claim ought to be referred 
 back to the date of the writ, and that it will be necessary under 
 the Judicature Acts, as well a under the statutes of set-off, 
 that it should have been complete then (;•)• 
 
 The debt must continue due at the commencement of the 
 suit. Therefore a debt cannot be set off which is barred by the 
 Bankrupt or Insolvent Acts {s) ; or by the Statute of Limita- 
 tions (/). 
 
 The debt sued for, and that intended to be set off, must 
 have been mutual, and due in the same right, and there could 
 be no set-off where either of the debts was due in aider droit (u). 
 To a certain extent this rule would probably extend to counter- 
 claims, but not to the extent to which it was formerly carried. 
 For example, a joint debt could not have been set off" against a 
 separate one, nor a separate against a joint debt {x). This is 
 no longer the case. A defendant may set up by counter-claim 
 a claim against the plaintiff and another person jointly {>/) ; 
 
 (w) Bulman v. Ilirkctt, 1 Esp. 449 : Martin v. Windo; 1 Doug. 199, n. : 
 Lester v. Lazarus, 2 C. :\I. & It. 6G9. 
 
 (7) Brown v. Tibbits, 11 C. B. N. S. 855 ; 31 L. J. C. P. 206. 
 
 (?•) Original Hartlejwol Collieries Co. v. Oibb, 5 Ch. 1). 713 ; 46 L. J. Ch. 
 311. But see Lees v. Patterson, 7 Ch. D. 866 ; 47 L. J. Ch. 616 : Beddali 
 V. Maitland, 17 Ch. D. 174. 
 
 (sj Hayllar v. Shcrivood, 2 Kev. & ]\[. 401 : Irattcis v. Dodsivorth, 4 C. 
 B. 202. 
 
 (t) Mead v. Bashford, 5 Ex. 336 : Walker v. Clevients, 15 Q. B. 1046. 
 
 (u) Gale V. Luttrell, 1 Y. & J. 180. 
 
 {x) France v. White, 6 Bing. N. C. 33 : McEimn v. Crombic, 25 Ch. D. 
 175. Where there had been an express agreement, debts of this nature might 
 be set against each other : Kinnerley v. Hossack, 2 Taunt. 170. 
 
 {y) Ord. 21, K. 11.
 
 SET-OFF. 123 
 
 and the Exchequer Division held recently, in a case in which 
 two railway companies, as joint lessees of a railway, sued for 
 statutory tolls, that the defendant could set up against each 
 company a separate counter-claim for damages in respect of 
 delay in the delivery of goods (z). 
 
 A debt due to defendant, as a surviving partner, might be Partners, 
 set oft' against a demand on him in his own right («), and 
 vice versa, a debt due from the plaintift", as surviving partner, 
 might be set oS" against a demand by him in his own right (b). 
 So ■where by the terms of the partnership the plaintiff was to 
 be the only ostensible trader, the others being mere sleeping 
 partners, a separate debt due from him might be set oif against 
 a debt due to the lirm, of which he was the manager (c). In 
 such a case, however, it was not sufficient merely to show 
 that the defendant was ignorant of the existence of other 
 partners. Therefore where to an action by a firm for money 
 had and received, the defendant pleaded that the money was 
 the proceeds of the sale of goods, which one of the partners 
 had employed him to dispose of ; that at the time of the sale 
 the defendant believed that his employer was the sole owner 
 of the goods, and entitled to receive their proceeds for his 
 exclusive use, and had no notice of the rights of the other 
 partners ; and that after he was so employed, and before 
 he had any notice of the rights of the other partners, his 
 employer became indebted to him in an amount which he 
 ofifered to set off ; the plea was held bad, because it did nob 
 appear that the person who employed the defendant had ap- 
 peared to be the sole owner of the goods, with the assent of 
 his partners, or that there had been any laches or default on 
 their part (r/). 
 
 A joint and several promissory note (e) or bond being the Joint and 
 separate debt of both, might be set ofl' against either, and so oj7,^ofjj_"° 
 in the case of a bond intended to be joint, but only executed 
 by one. No debt could arise from the non-executing party, 
 
 (-) Manchester, Sheffield d: Lincolnshire By. Co., and L. <L- JV. W. Ry. Co. 
 , Brooks, 2 Ex. D. 243 ; 46 L. J. Ex. 244. 
 
 (a) Slipper v. Stidstone, 5 T. R. 493. 
 
 (b) French v. Andrade, 6 T. R. 582. 
 
 (c) Stracey v. Beey, 7 T. R. 361, n. 
 ((/) Gordon v. Lllis, 2 G. B. 821. 
 
 (e) Owen v. Wilkinson, 5 C. B. N. S. 526 ; 28 L. J. C. P. 3.
 
 SET-OFF. 
 
 Executor. 
 
 Claims by 
 or against 
 an executor. 
 
 and therefore it might be set off against a demand by the 
 other (/). 
 
 According to the old practice, when a husband was sued on 
 his own debt, he could not set off' a debt due to him in right 
 of his wife {g). Nor could a debt due from the wife, dum sola, 
 be set oft" against an action by the husband alone, unless he 
 had for some new consideration made the debt his own {h). 
 "Where a note was given to a wife during coverture, the 
 husband had a right to treat it as joint property, or several. 
 If he chose to treat it as several, he might sue upon it alone, 
 and the consequence would be to let in, by way of set-off', any 
 debts due from him, but not those due from the wife. If, on 
 the other hand, he elected to treat it as joint property of 
 himself and his wife, in her right, and joined her in the 
 action, it was the opinion of Bayley, J., that he might let 
 in debts due from her in her own right. But Littledale, J., 
 said that he did not think the latter position by any means 
 clear {i). 
 
 Now, as claims by or against husband and wife may be joined 
 with claims by and against either of them separately (Jc), it is 
 probable that a husband will be allowed to set up by way of 
 counter-claim any claim in respect of his wife in respect of 
 which he has a beneficial interest. 
 
 An executor, sued for a debt due from the testator, could 
 not set off a debt due to himself (/) ; nor could a defendant, 
 sued by an executor, set off" a debt due from the executor in his 
 own right (??i). There used also to be many cases in which 
 debts due from or to the deceased, could not be set oft' against 
 claims in respect of the testator's estate. Debts due from the 
 testator could not be set off in reply to an action by the 
 executor for a cause arising after the death of the testator, 
 whether the executor sued in his own name, as he might 
 do («), or as executor ; because if in this way he might retain 
 
 (/) Fletcher v. Dyclie, 2 T. R. 32. 
 
 ((/) Paynter v. Walka; B. N. P. 179 ; O'Halloran v. Studdert, 1 Ir. C. L. 
 245. 
 
 (/i) Wood y. Akers, 2 Esp. 594 : BurrovgU v. Moss, 10 B. & C. 558. And 
 see y3 k. 34 Vict. c. 93, s. 12. 
 
 (?■) Burrowjh v. Moss, 10 B. k C. 558, 562. 
 
 {k) Ord. 18, R. 4. 
 
 \l) Bishop V. Church, 3 Atk. 691. 
 
 (m) Willes, 263. 
 
 (n) Shipman v. Thompson, Willes, 103.
 
 SET-OFF. 125 
 
 money or goods received since the death, by merely offering Claims by 
 a set-olf, the course of distribution would be altered, and he an executor. 
 might be paid before creditors of a superior nature (o). There- 
 fore it was held, that to an action for money had and received 
 by the defendant to the use of the administrator, and on 
 accounts stated between them, a set-off of money lent by 
 defendant to the intestate could not be allowed (;?). The 
 Court said that in the case of actions by or against an executor, 
 it was as necessary as in the case of actions between the 
 principals " that the debts should originally have existed be- 
 tween the two living parties. The executor or administrator, 
 to come within the statute, must sue or be sued necessarily in 
 his representative character. If not, although he may be called 
 executor, he is really a third party introduced (whereas it is 
 essential that there should be only two concerucd) and the 
 mutuality of the debts, without which there can be no set-off, 
 does not exist. Whether the statute in either of its branches 
 extends beyond its mere words to the case of two mutual 
 debtors both dying, and the representative of the one suing the 
 representative of the other, it is not necessary now to decide. 
 In the present case .... the money was not received to the 
 use of the intestate. The intestate had no claim on the 
 defendant in respect of this receipt, which took place after his 
 death ; he and the defendant never stood in the relation of 
 mutual debtors, to each other, and consequently there is noset- 
 oflP between the one and the representative of the other " (q). 
 
 It was held that to an action against an executor, on an 
 account stated with him of monies due from him as executor, 
 a set-ofiP might be pleaded of debts due from the plaintiff to the 
 testator in his lifetime (r). This decision seems principally to 
 have rested upon the idea that an account stated by an 
 executor, as such, could only have been stated in respect of a 
 
 (o) Kilvinffton v. Stevenson, Willes, 264, n. : Te(jetmeyer\. Lumlcy, ibid. : 
 Schqfield v. Corhctt, 11 Q. 15. 779: Lamhardc v. Older, 17 Beav. 542: He 
 arer/son, 36 Ch. D. 223 ; 57 L. J. Cb. 221. 
 
 (p) llees V. Watts, 25 L. J. Ex. 30 ; 11 Ex. 410, affig. Wntis v. Bees, 9 
 Ex. 696 ; 23 L. J. Ex. 238 : followed in A'eiceU v. Nat. Frov. Bank of 
 Jim/land, 1 C. P. D. 496 ; 45 L. .T. C. P. 285. 
 
 (q) Jlees V. Watts, 25 L. J. Ex. 30 ; 11 Ex. 410 : affig. Watts v. Fiees, i) 
 E.x. 696 ; 23 L. J. Ex. 268. 
 
 (r) Blakcslcii v. Smalluvod, 8 Q. B. 533.
 
 126 
 
 SET-OFF. 
 
 Claims by 
 or against 
 an executor. 
 
 Present 
 practice. 
 
 Trustee. 
 
 previously existing debL due from the testator (s)- Upon this 
 ground the Court of Exchequer Chamber in the case last 
 cited (/) were willing to acquiesce in it, though they expressed 
 great doubts of its general soundness. They decidedly over- 
 ruled another decision of the Queen's Bench, in which it had 
 been ruled that a defendant, sued as executor for a debt which 
 accrued due from the testator in his lifetime, might set off a 
 debt which accrued due to him as executor, since the death of 
 the testator (u). 
 
 Claims by or against an executor or administrator, as such, 
 may now be joined with claims by or against him personally, 
 provided the last-mentioned claims arise with reference to the 
 estate of the testator or intestate (x). It would seem, there- 
 fore, that all matters of counter-claim which relate to the 
 estate can now be set np against claims made in respect of 
 such estate (//). But an executor who sues in his own personal 
 capacity for a cause of action arising to himself, cannot be 
 met by a counter-claim against himself in his capacity of 
 executor (z). 
 
 It was formerly held that in an action by a trustee, a debt 
 due from the person beneficially interested might be set off (a). 
 These cases, after being repeatedly doubted, were overruled (h), 
 and the rule laid down that none but legal rights could be re- 
 garded. Accordingly, it was h^ld that the assignee of a bond 
 debt of the pLantifF could not set it off in an action against 
 himself, in his own right (c). And on the same principle, an 
 executrix sued upon a bond given by her testatrix to a trustee, 
 for payment of money to the use of S., was not allowed to set 
 off a bond given by S. to another person, who had made the 
 
 (.s) Seeder Holroyd, J., Ashhj v. Aslihn, 7 V>. k 0. 444, 451. 
 
 {t) See Mees v. Watts, ante. 
 
 («) Mardally. Thellusov, 21 L. J. Q. B. 410 ; 18 Q. B. 857; after being 
 thus overruled error was brought in this case, and the decision of the Queen's 
 Bench reversed, 6 E. & B. 976. 
 
 (a;) Ord. 18, R. 5. See also Ord. 16, R. 8. 
 
 (?/) Unless, indeed, as in Newell v. Not. Pror. Bank of Enriland, 1 C. P. 
 D. 496 ; 45 L. J. C. P. 285, an administi-ation suit is pending, and it would 
 be contrary to the practice of the Equity Division to allow the defendant's 
 claim, except by proof in the suit. 
 
 (2) Macdonakl v. Cariiujton. 4 C. P. D. 2S ; 48 L. J. C. P. 178. 
 
 (a) Bottomley v. Broolc, 1 T. R. 621 : rauUjc v. Birch, ibid. 622. 
 
 [h) l.ibo-f) V. Bowden, 8 Ex. 852. 
 
 ((•) Wakey. Tinkler, 16 East, 36.
 
 SET-OFF. 127 
 
 testatrix his executrix and residuary legatee, the defendant 
 beino^ herself executrix for her own benefit {d). These decisions, 
 however, have lost their importance since the introduction of 
 equitable defences, which admit of set-off where the parties to 
 the cross debts are substantially the same, though nominally 
 diflPerent {e). 
 
 A judgment, obtained by a party merely as trustee, cannot Set-off of 
 be set off against a judgment olbtained against him in his in- i^^'oments ia 
 dividual right (/). But where the real plaintiff in one action trustees. 
 is the real defendant in the other, the judgments may be set off 
 against each other, though the nominal parties are different {g). 
 
 In a recent case a municipal corporation, being also the local rahiic bodies 
 board of health under the Public Health Act, 1848, and Local {"living 'j^^nk- 
 Government Act, 1858, kept separate accounts at their bankers iu"iiirt-erent'^ 
 for municipal and local board affairs. Being sued for the ^'^'i^^^^- 
 amount overdrawn on the latter account, they were held entitled 
 to set off their claim on the other account, which was in their 
 favour (Ji). The ground of the decision was, that this was not 
 the case of two distinct bodies, to whom debts were due in 
 different rights : that the Local Board of Health was not a 
 corporation at all, but merely a department of the corporation, 
 and that the corporation was debtor and creditor in both cases, 
 and in contemplation of law the same person in both cases. 
 
 When a factor, dealing for a principal, but concealing that Tiincipal ami 
 principal, delivers goods in his own name, the person con- '^1®"* 'y^'f'"'' 
 
 . . ' r action is bj 
 
 tractmg with him has a right to consider him to all intents yi-ineipai. 
 and purposes as the principal ; and though the real principal 
 appear and bring an action upon that contract against the 
 purchaser of the goods, yet that purchaser may set off any 
 claim he may have against the factor in answer to the demand 
 of the principal (/). But where the purchaser has notice, at 
 
 id) Tuvker v. Tucker, 4 B. & Ad. 745. 
 
 (e) Cochrane v. Green, 9 C. B. N. S. 448 ; 30 L. J. C. P. 97 : Acfra and 
 Masterman's Bank v. Lei'jldon, L. R. 2 Ex. 56 ; 36 L. J. Ex. 33. Ord. 
 16. R. 8. See Bowi/ear v. Pawson, 6 Q. B. D. 540. 
 
 (/) BrlUmcc v. Necdham, 7 M. & G. 648. 
 
 (.'/) Standeven v. Mnrgatroyd, 27 L. J. Ex. 425. 
 
 (A) Pedderv. The Mayor, ctr., of Preston, 12 C. B. N. S. 535 ; 31 L. J. 
 C. P. 291. See, for other examples of setting off banking accounts, Bailey v. 
 Finch, L. R. 7 Q. B. 34 ; 41 L. J. Q. B. 83: Baile^i v. Johnson, L. R. 6 
 Kx. 279 ; 40 L. J. Ex. 109 : affirmed, L. R. 7 Ex. 263 ; 41 L. J. Ex. 211 : 
 Ex -parte Morier, 12 Ch. D. 491 ; 49 L. J. Bkcy. 9. 
 
 («') llahone v. Williams, 7 T. R. 360, n. ; Georrje v. Clagett, ibid. 359 :
 
 123 SET-OFF. 
 
 the time of the sale, that the factor is acting as the ageut of 
 anotlier, though he does not know who that other is Qc), the 
 case is different. He cannot set off a debt from the factor 
 against an action by the principal, though perhaps payment to 
 Case of broker him might be good, even though made prematurely (/). lu no 
 case can such a set-off be allowed where the sale was made by 
 a broker. He is in a different position from a factor : he is 
 not trusted with the possession of the goods, and he ought not 
 to sell them in his own name. The principal, therefore, who 
 trusts a broker, has a right to expect that he will not sell them 
 in his own name (w). 
 under del It is different, however, where the broker is acting under a 
 
 i-redcre com- ^j^i credere commission. In such a case, he is to be considered, 
 as between himself and the yendee, as the sole owner of the 
 goods in). Therefore, where the defendant, a broker, acting 
 imdcr such a commission for A., sold his goods to B., for whom 
 he had a commission to purchase, and, without any order to 
 that effect from B., paid the price to A., and afterwards was 
 directed by B. to resell the goods ; it was held in an action 
 brought by the assignees in bankruptcy of B. for the proceeds, 
 that he might set off the money he had so paid to A. (o). 
 "When action Where an auctioneer sold goods the property of A., and 
 
 IS bv agent. stated in the catalogue to be so, a plea that he Avas suing in 
 trust for A., and that the defendant had a set-oflf against A., 
 Avas admitted without objection as an answer to an action by 
 him (^^), though it would have been otherwise if he had a lien 
 upon the goods for his charges, and had not parted with them 
 except on an express agreement that the payment should be 
 made to himself {q). This distinction, however, seems to have 
 been denied in a late case. The plaintiff sued on a charter 
 
 Borries v. Imperial Ottoman Ban!:, L. R. 9 C. P. 38 ; 43 L. J. C. P. 3 : 
 
 Kcdtenhach v. Bctvis, 24 Ch. D. 54. 
 
 {k) Semevza v, Brinsley, 18 G. B. N. S. 467 ; 34 L. J. C. P. IGl : Mas- 
 pons V. Mildred, 9 Q. IJ. D. 530 ; affirmed, 8 App. Cas. 874. 
 
 (0 Fish V. Kempton, 1 C. 13. 687. See Warner v. M'Kiaj, 1 ]\T. & W. 
 591. Where the goods are bought tlu-oiigh an agent, notice to him is notice 
 to his ijriiicipal, however the notice mav have been acquired : Dresser v. Nor- 
 wood, 17 C. B. N. S. 466 ; 34 L. J. C. P. 48, Ex. Ch. ; overruling S. C, 
 14 C. B. N. S. 574 ; 32 L. J. C. P. 201. 
 
 (m) Baring v. Corrie, 2 B. & A. 137 ; recognised 7 C B. 693. 
 
 (n) Hoxir/ldon v. M/'ttlfAvs, 3 B. & P. 4S9. 
 
 (o) Morris V. Ckasby, 1 M. & S. 570. 
 
 (p) Coppin V. Crui;/, 7 Tannt. 243. See Coppia v. Walker, ibid. 237. 
 
 (q) Jarvis v. Chapjjlc, 2 Chit. Rep. 387.
 
 SET-OFF IX EQUITY. 129 
 
 party, to which defendant pleaded that plaintiff entered into it 
 as master of the ship, and agent for the owner, and that he 
 never had any beneficial interest in the charter party, nor any 
 lien upon the freight, and that he was suing as agent and 
 trustee for the owner, against whom defendant had a set-off (r). 
 The plea was held bad on demurrer, and the authority of the 
 above cases in support of the alleged doctrine was doubted (s). 
 
 Suits between Incorporated Companies and their members, Companies. 
 or non-members, are subject to the ordinary rules of set-off ; 
 bat when Companies are being wound up by or under the 
 supervision of the Court, the right of set-off of contributories 
 is regulated by 25 & 2G Vict. c. 89, ss. 38, 101 (/). 
 
 It may be worth while still to note that equity would some- Equitable 
 times give relief where the party sued had a counter-claim ^^^^ ' 
 which could not be set-off at law (u). Accordingly, a plaintiff 
 at law has been restrained from taking out execution on a 
 judgment, where the defendant had a judgment against him 
 to a greater amount, which the Court of King's Bench refused 
 to allow him to set off. The Yice-Chancellor said that the 
 lesser judgment was, in point of fact, satisfied (x). 
 
 This case, however, seems to have been treated as rather Principle of 
 transcending the limits within which equity gave relief. Lord gg^.^j^^ " 
 
 (r) Isherj v. Bowden, 8 Ex. S52 ; but see Holmes v. Tutton, 24 L. J. 
 Q. B. S4G. 
 
 («) See, as to set-off in actions by and against policy brokers, 4 Chit. Stat. 
 p. 172, Srdea. 
 
 (<) Under tbese sections a debt due from a limited company cannot, in the 
 event of the company's being wound up under the supervisiou of the Court, be 
 set-off against calls : GrisseU's caxe, L. R. 1 Ch. 52S ; 3.5 L. J. Ch. 752 ; nor 
 against debts incurred bv the defendant to the company while in liquidation ; 
 Sankcy Brook Coal Co. Lim. v. Marsh, L. R. 6 Ex. 185 ; 40 L J. Ex. 125 ; 
 and the same rule applies where the company is being voluntarily wound up ; 
 Black ct- Co.'s Cage, L. R. 8 Cb. 254 ; 42 L. J. Cb. 404 ; F.c Whitehoase, 
 9 Ch. D. 595 ; 47 L. J. Ch. 801 : disapproving of Brirjhton Arcade Co. v. 
 Dowlinrj, L. R. 3 C. P. 175 ; 37 L. J. C. P. 125. Sec, as to tbeir applica- 
 tion in case of the bankruptcy of a contributory, iu-' Duckworth, L. R. 2 Ch. 
 578 ; 36 L. J. Bank. 23. 
 
 («) The counter-claim must have been in respect of an ascertained sum ; 
 see Kerr on Injunctions, c. 4, s. 5, p. 66 ; 1 Joyce on lnjuncti(?ns, 489. 
 Where there -vas a clear natural connection between claim and counter-claim, 
 and both originated in one transaction, a Court of Equity would sometimes 
 interfere to prevent the one party from enforcing his claim without allowing 
 the claim of the other, even though it were unliquidated, ibid. 67, and see 
 cases cited there. See, further, Throckmorton v. Croicley, L. R. 3 Eq. 106 ; 
 and as to set-off of debts asainst legacies, Bou.^iiel'l v. Luvford, 1 De G. J. & 
 S. 459 : Stammers v. Elliltt. L. R. 3 Ch. 195 ; 37 L. J. Ch. 353. 
 
 (a:) Williams v. Davits, 2 Sim. 461. 
 
 M.D. K
 
 130 
 
 SET-OFF IN EQUITY. 
 
 Cross demand 
 not sufficient, 
 
 unless sup- 
 ported by 
 some equity. 
 
 Cottenham said, " This equitable set-off exists in cases where 
 the party seeking for the benefit of it can show some equitable 
 ground for being protected against his adversary's demands. 
 The mere existence of cross-demands is not sufficient, although 
 it is difficult to find any other ground for the order in Williams 
 V. Davies, as reported. In all the cases upon the subject 
 except Williams v. Davies, it will be found that the equity of 
 the bill impeached the title to the legal demand " (,y). And 
 so Lord Eldon said, " Where the Court does not find a natural 
 equity going beyond the statute, the construction of the law is 
 the same in equity as at law " (z). 
 
 Hence the mere existence of a cross-demand, which was only 
 available in equity, was no ground for restraining an action 
 at law ; unless there were also circumstances which made it 
 inequitable that the claim should be enforced at law, until the 
 counter-claim in equity was also enforced. An action for 
 breach of an agreement to make advances on shipments, would 
 not be restrained pending a bill for an account of advances 
 already made {a). Nor would an action upon a note given in 
 settlement of a partnership claim be restrained, pending a bill 
 for an account of subsecj^ucnt transactions (&). Nor would a 
 tenant, who had obtained judgment against his landlord for an 
 excessive distress, be enjoined against enforcing it, on the 
 ground that he had incurred a subsequent liability to his land- 
 lord for rent and dilapidations (c). 
 
 On the other hand the set-ofP was allowed in equity, though 
 it would have been bad at law, where the nature of the counter- 
 claim was such as to show that the legal demand was one which 
 equity would not allow to be enforced. For instance, when an 
 agent ahowed his principal to build upon land, believing it to 
 be his own, and afterwards brought a successful action of eject- 
 ment against him, and then sued for mesne profits ; it was held 
 that the compensation due to the principal for the loss of his 
 buildings must be set oflF. Because to that extent he had a lien 
 
 {y) Eawson v. Samuel, Cr. & Ph. 178, 179, where all the cases are con- 
 sidered, and per Jessel, M.R., He Wkitekouse, 9 Gh. D. at p. 597 ; 47 L. J. 
 Ch. 801. 
 
 (z) Ex parte Stephens, 11 Ves. 27. 
 
 (a) Eawsun v. Sa7)iucl, Cr. & Ph. 161. 
 
 (b) Preston v. Strutton, 1 Anst. 50. 
 (<•) Maw V. Ulyatt, 31 L. J. Ch. 33.
 
 SET-OFF IN EQUITY. 131 
 
 upon the laud and upon all that came from it {d). And so 
 where a running account existed between landlord and tenant, 
 under which advances and supplies made by the latter had gone 
 in discharge of the rent, but no receipts had ever been given ; 
 an action of ejectment for non-payment of rent was restrained, 
 until an account was taken of the past transactions ; because 
 it depended upon this account, whether the rent had ever been 
 in default (c). 
 
 So where there were cross-demands of such a character, that Equity must 
 if both had been recoverable at law, they would have been the |';i^e junstiic- 
 
 ' -' tioii over sub- 
 
 subject of legal set-off, then, if either of tlie claims was of an jcct-matter. 
 
 equitable nature, and equity had jurisdiction of the subject- 
 matter, it would enforce the set-off (/). For instance, various 
 consignments of oil were being carried to different persons in 
 the same ship, and the oil leaked out and was collected in one 
 mass by the captain and sold for 750^. The consignees agreed 
 to divide the sum among themselves in proportion to their 
 losses. Then the shipowner sued the consignees separately for 
 freight. No set-off could be maintained at law. But a bill 
 was filed by all the consignees for an account, and equity being 
 thus in possession of the entire transaction, the actions were 
 restrained, and a set-off allowed to the extent of the proportions 
 of the 750/. due to each consignee (g). So in the following 
 case : G. assigned property on trust to sell and apply the 
 jjroceeds in payment of whatever might be due from himself to 
 whoever might carry on the business of M. & Co., his bankers. 
 M. & Co. transferred their business to the plaintiffs, and with 
 it G.'s debt to themselves. The plaintiffs employed G-. as a 
 builder and owed him money. G. became bankrupt and his 
 assignee sued the plaintiffs. The plaintiffs filed a bill against 
 the assignee to take an account of Avhat was due from G. after 
 the sale of the property, and to set-off this debt against the 
 other. Lord Cottenham doubted whether the set-off could 
 have been allowed on the mere ground that the plaintiffs were 
 the assignees of a debt from G. to M. & Co., though he said 
 
 {d) Lord Cawdor v. Lewis, 1 Y. & C. 427. 
 
 ^e) O'Connor v. Spaight, 1 Sch. & Lef. 305 ; Beasley v. D'Arcij, 2 Scli. & 
 Lef. 403, n. 
 
 (/) Clark V. Cnrt, Cr. & Ph. 154 ; James v. Kynnier, 5 Yes. 108. 
 \g) Jones v. Moore, 4 Y. & C. 351. 
 
 K 2
 
 132 
 
 SET-OFF IN EQUITY. 
 
 Mere existence 
 of cross 
 demand not 
 sufficient. 
 
 Etiuitable plea. 
 
 Set-off against 
 assignee. 
 
 that the decision in Williams v. Davies (h) went farther than 
 such a case would require. The plaintiffs, however, were not 
 merely assignees of the debt without the privity of the debtor. 
 They were assignees of the debt for whom the debtor had con- 
 tracted that the security should enure. They had a demand 
 against Gr. before he was bankrapt, in respect of which they 
 were entitled to sue in equity : therefore, they w^ere entitled in 
 equity to set off the legal debt which they owed to G. (i). 
 
 But equity would not take jurisdiction for the sole purpose 
 of enforcing a set-oflF, which was bad in law, though under 
 proper circumstances it might be good in equity. As Jesscl, 
 M. E,., said in a recent case, " The mere fact of the cross- 
 demand existing would not of itself give equitable jurisdiction, 
 nor the mere fact that one of the demands was held by a 
 trustee ; that is to say, that one of the demands, though still a 
 legal demand, was, as regards beneficial ownership, the property 
 of the person who was liable to the other demand. T never 
 heard of a bill to enforce such a set-olf " {k). 
 
 On the same principle, an equitable plea in a Court of com- 
 mon law was not allowed, where it merely set up a cross-claim 
 for unliquidated damages, which was bad at law on that account, 
 and which contained no ground in ecjuity why the plaintiff' 
 should not enforce his claim. For instance, where to an action 
 for advances on goods, defendant pleaded that the plaintiff's 
 might have repaid themselves, if they had not negligently sold 
 under market price ; for the money lent was due at once, 
 antecedent to any sale (/). To an action for freight, that the 
 defendant had been employed by the plaintiffs as a bargeman, 
 and had lost a quantity of their goods ; the goods so lost being 
 (apparently) quite dilferent goods from those in respect of 
 which the freight was payable (m). To a breach of one cove- 
 nant by a lessee, that the lessor had broken another and 
 independent covenant, on a redemise by the lessee to him («). 
 
 The assignee of a debt takes it, subject to the debtor's right 
 
 (A) 2 Sim. 461. 
 
 (i) C'lHi-k V. Cort, Cr. & Pli. 154. 
 
 (/t) Middleton V. Pollock, L. K. 20 Eq. 20, -30 ; 44 L. J. Cli. 584 ; dis- 
 approving of dicta in Cochrane v. Green, 9 C. B. N. S. 44S ; 30 L. J. C. P. 97. 
 
 \l) Atterhurij v. Jarvie, 2 H. & N. 114 ; 26 L. J. Ex. 178 ; Best v. Hill, 
 L. R. 8 0. P. 10 ; 42 L. J. C. P. 10. 
 
 (m) Stimson v. Hall, 1 H. & N. 831. 
 
 (w) Minshull V. Ualce3, 2 H. & N. 793 ; 27 L. J. Ex. 194.
 
 SET-OFF IN EQUITY. 133 
 
 to set off debts which accrue due to liim from the assignor 
 before he has notice of the assignment (o) ; but not, in the 
 absence of special circumstances showing a connection between 
 the transactions out of which the cross-chiims arise, debts which 
 accrue due after such notice, even though resulting from a 
 contract entered into previously ( ;:>). Under the Judicature 
 Act, 1873, s. 25, subs. ((1), the assignment of a debt or legal 
 chose in action after express notice to the debtor or trustee, 
 passes the legal right subject to any equities which would have 
 had priority over tlie right of the assignee if the Act had not 
 been passed. Accordingly, the assignee of a debt due on a 
 building contract from the defendant to his assignor, is liable 
 to a deduction by way of set-off in respect of any damages which 
 the defendant had sustained by the assignor's non-performance 
 of the contract {q). 
 
 The rule that debts to be set off must arise in the same Exceptions to 
 right, prevailed in equity as well as law (r). But where an '^^^^^^^ '^^^^^ 
 administrator and sole next of kin sued on a bond given to his mutual, 
 intestate, and it appeared, from the state of the property, that 
 he was in fact suing for his own benefit, a set-off of a debt due 
 from him in his own right was allowed (.s). And vice rersd, 
 where an agent sued for the price of goods sold by him for his 
 principal, it was, if not a legal, at all events a good equitable 
 defence, that his lien was satisfied, and that the defendant had 
 -a set-off against the principal (/). 
 
 Although at law, too, a joint debt could not be set off against Joint debt 
 a separate debt, where it was clearly proved that the joint debt ^ep^i-atlfdelft. 
 arose out of the same series of transactions as those which 
 
 (o) Cavendish v. Geaves, 24 Bear. 163 ; 27 L. J. Ch. 314 ; Wilson v. 
 {iabriel, 4 P.. & S. 243 ; EoxhurjJic v. Cox, 17 Ch. D. 520. But the debtors 
 may, by tlieir original contract with the plaintiff, or by their subsequent 
 dealings with the assignees, deprive themselves of the right of set-olf ; Hi<jijs 
 V. Assam Tea Co., Limited, L. R. 4 Ex. 387 ; 3S L. J. Ex. 233 ; Dickson v. 
 Sicansea Vale Ry. Co., h. 11. 4 Q. B. 44 ; 38 L. J. Q. B. 17. 
 
 {p) Watson y. Mid- Wales Ry. Co., L. R. 2 C. P. ^92, ; 36 L. J. C. P. 2So ; 
 Jeffrycs v. Agra d; Masterman's Bank, L. R. 2 Eq. 674 ; 35 L. J. Ch. 686. 
 
 (q) Youmj v. Kitchen, 3 Ex. D. 127 ; 47 L. J. Ex. 579. 
 
 (r) Gale v. Luttrcll, 1 Y. & J. 180 ; Lamharde v. Older, 17 Beav. 542 ; 
 Middleton v. Pollock, L. R. 20 Eq. 29 ; 44 L. J. Ch. 584. 
 
 (s) Jon/is V. Mossop, 3 Hare, 568. See Tai/lor v. Ta>/lor, L. R. 20 Eq. 
 155 ; 44 \j. J. Ch. 718 ; Bailey v. Finch, L. R. 7 Q. B. 34 ; 41 L. J. Q. 
 B. 83 ; Ex parte Morier, 12 Ch. D. 491, p. 496 ; 49 L. J. Bkcy. 9. 
 
 (t) Holmes V. Tutton, 24 L. J. Q. B. 346 ; and see Farebrother v. Melck- 
 man, 3 Drew. 122 ; 24 L. J. Ch. 410.
 
 134 
 
 MUTUAL CREDIT IN BANKRUPTCY. 
 
 Pleas in avoid- 
 ance of cir- 
 cuity of action. 
 
 Mutual credit 
 in bankruptcy 
 
 produced the separate debt, it might in equity. For instance, 
 where in dealings between a customer and a bank, the joint 
 debt to the bank arose out of a joint promissory note given by 
 the father, and the son as his surety, for advances ; and the 
 separate debt from the bank arose out of a deposit of stock, 
 made by the father as security for the same series of loans, 
 Lord Eldon appeared to think that equity would allow a set- 
 off («)• On the same principle, where the joint debt was a 
 bond by principal and surety, a separate debt due to the prin- 
 cipal might be set off in equity, because the joint debt was 
 nothing more than a security for the separate debt ; and upon 
 equitable considerations, a creditor who had a joint security 
 for a separate" debt, could not resort to that security without 
 allowing what he has received on the separate account, for 
 which the other was a security (x). And so where A. & B., 
 partners, gave a joint and several bond to C, and C. became 
 indebted to A., and B. became bankrupt ; C. proved the bond 
 under the commission, and then brought a joint action upon 
 it against A. & B.,'to w^hich of course A. could not plead his 
 set-off : it was held that C, by proving under the commission, 
 had elected to proceed severally upon his bond, and an injunc- 
 tion was issued against the joint action (tj). 
 
 Something analogous to the statutory right of set-off was 
 the power which has always existed at common law, of setting 
 off one right of suit against another, for the sake of avoiding 
 circuity of action. This existed even where the right which 
 was pleaded in bar was aright to sue for unliquidated damages. 
 It was absolutely necessary, however, that the damages recover- 
 able in each action should be strictly identical, and should 
 appear upon the record to be so [z). 
 
 As to payments made by a tenant, which he may deduct 
 from his rent, see post, p. 262. 
 
 Set-off in bankruptcy is now regulated by the Bankruptcy 
 
 (w) Vulliamy v. Nohic, 3 Mer. 593, 618. 
 
 (x) Ex parte Hanson, 12 Yes. 346 ; 18 Yes. 232, S. C. ; and see Ex parte 
 Stephens, 11 Yes. 24. 
 
 iy) Bradley v. 3J ilJar, 1 Rose, 273. 
 
 (z) See the cases collected, 2 Wms. Saund. 150 ; Ford v. Beech, 11 Q. B. 
 852 ; Bdshaw v. Bush, 11 C. B. 191 ; Charlca v. Altin, 15 C. B. 46 ; 23 L. 
 J. C. P. 197 ; Thompson v. GiUespy, 24 L. .T. Q. B. 340 ; Alston v. Herring, 
 n Ex. 822 ; 25 L. J. Ex. 177 ; Minshull v. Oakes, 2 H. & N. 793 ; 27 
 L. J. Ex. 194 ; Schloss v. Heriot, 14 C. B. N. S. 59 ; 32 L. J. C. P. 211.
 
 MUTUAL CREDIT IN BANKRUPTCY. 
 
 Act, 1883, s. 38, which follows the terms of the Bankruptcy 
 Act, 1869. 32 & 33 Vict. c. 71, s. 39, and is as follows : — 
 " Where there have been mutual credits, mutual debts, or other 
 " mutual dealings between a debtor against whom a receiving 
 " order shall be made under this Act, and any other person 
 " proving or claiming to prove a debt under such receiving 
 " order, an account shall be taken of what is due from the one 
 " party to the other in respect of such mutual dealings, and the 
 *' sum due from the one party shall be set off against any sum 
 " due from the other party ; and the balance of the account, 
 " and no more, shall be claimed or paid on either side respec- 
 " tively ; but a person shall not be entitled under this section 
 " to claim the benefit of any set-off" against the property of a 
 " debtor in any case where he had, at the time of giving credit 
 '• to the debtor, notice of an act of bankruptcy committed by 
 " the debtor, and available against him." 
 
 This clause only applies to a winding-up of the estate as Cases in whicli 
 between the debtor and the ci-editors (a). And in case of a '* m^^^^^- 
 
 firm, there must be a bankruptcy of the firm itself, and not 
 
 merely of the individual partners (h). 
 There are some important ditferences between this statute 
 
 and the statutes of set-off. The introduction of the words 
 
 "mutual credits," "or other mutual deahngs," is one of the 
 
 most remarkable. 
 
 It was early decided that mutual credit meant something Meaning of 
 
 more extensive than mutual debt (c), and it was finally settled, mutual credit. 
 
 " that mutual credits, within the meaning of the bankrupt law, 
 
 are credits which must, in their nature, terminate in debts " (d). 
 
 That is, credits which have a natural tendency to terminate in 
 
 claims not differing in nature from a debt (e). 
 
 An accommodation acceptance is a credit given by the wbatisa 
 
 acceptor to the party accommodated (/) ; and so is an accom- credit. 
 
 modation indorsement, which the indorser has been obliged 
 
 (a) Turner v. Thomas, L. _R. 6 C. P. 610 ; 40 L. J. C. P. 271 ; mMattos 
 V. Saunders, L. R. 7 C. P. 570. t t> i r t? oq • ,io T T 
 
 (b) Load. Bomb, d- Med. M. v. Narraway, L. R. lo liq. J-i , *- -L- •'■ 
 
 Ch. 329. 
 
 (r.) Ex 2)artr Present. 1 Atk. 230. 
 
 (d) Ilose V. Hart, 8 Taunt. 499. 
 
 (e) 2 Sm. L. C. 33G, <Jth ed. n u <i \f Xr W 977 • 
 (/ ) Smith V. Hodson, 4 T. R. 211 ; Russell T. Bell, 8 M. & W. 27/ , 
 
 Bittleston v. Timmis, 1 G. B. 389.
 
 13G MUTUAL CREDIT IN BANKRUPTCY. 
 
 to take up, even after bankruptcy {g). But although an agree- 
 ment to accept a bill creates a credit, since the acceptance is 
 itself a debt (Ji), an agreement to indorse a bill does not, since 
 it merely constitutes a suretyship {i). It has also been laid 
 down that whoever takes a bill must be considered as giving 
 credit to the acceptor, and whoever takes a note, credit to the 
 drawer (Z-). 
 Dealing T\ith Any agreement by which goods are to be dealt with by one 
 
 iioods. pgj.f.y fQ^. f-i^g benefit of another, will also create a credit. 
 
 Therefore, where the bankrupt entrusted the defendant, who 
 was his creditor, with a string of pearls to be sold by defendant, 
 and the profits to be paid to himself, and the defendant sold 
 the pearls after bankruptcy, it was held that he might set off 
 his debt against an action by the assignees for the proceeds (/). 
 In another case, the bankrupt, who was about to make a ship- 
 ment, in which he wished his own name not to appear, repre- 
 sented to the merchants through whom the shipment was to be 
 effected, that the goods were the defendant's ; and induced the 
 defendant to write to them to insure, and make advances on 
 the goods, which was done. It was held that this was such a 
 credit reposed in the defendant, as enabled him, when he had 
 got the proceeds of the goods, to set off a debt due from the 
 bankrupt to him. Bayley, J., said that it amounted to a 
 consent by the bankrupt that the defendant should be con- 
 sidered the owner of the goods, and that the money produced 
 by the consignment should pass through his hands. In that 
 case he would have a right to deduct from it the debt due to 
 him (w). In a more recent case, running bills were delivered 
 to bankers for collection, the proceeds to be transmitted to the 
 depositors. It was held that this was a giving of credit to the 
 bankers («). 
 
 {(]) Hulme V. Mvr/qleston, 3 M. & W. 30. 
 
 (h) Gibson v. Belli 1 Bing. N. C. 743. 
 
 (i) Rose V. Sims, 1 B. & Ad. 521. 
 
 [k) Per Bayley, J., ColUns v. Jones, 10 B. & C. 777, 7S2. It is not 
 necessary to constitute mutual credit that the parties both intended that there 
 should be mutual credit ; therefore, it is sufficient, though the bill or note be 
 taken by endorsement from a third party without the knowledge of the acceptor 
 or maker. Byles on Bills, p. 473, 15th ed. 
 
 il) French v. Fenn, Cor.ke, B. L., 8th ed. 565. 
 
 {m) Easum v. Cato, 5 B. & A. 861 ; see Younrf v. Bank of Bengal, 1 Moo. 
 P. C. 150 ; explained Alsar/er v. Currie, 12 j\r. & W. 751, 757. 
 
 (n) Naoi-oji v. Chartered Bank of hulia, L. R. 3 C. P. 444 ; 37 L. J. C. P.
 
 MUTUAL CREDIT IN BANKRUPTCY. 137 
 
 The debts to be set off agaiiist each other must be due in the ^^"•'^t ^^^ due 
 same n'frht ; therefore to an action for money had and received 
 to the use of the assignee, a set-off of money due from the 
 bankrupt was held bad [o) ; but not so where both debts accrued 
 due after the act of bankruptcy (j)) ; or where the plea, while 
 confessing that the money was received to the use of the 
 assignees, showed that their title to it arose out of a credit 
 given by the bankrupt ; for then it appeared that both debts 
 were respectively due to and from the estate (q). "Where one 
 of several joint debtors becomes bankrupt, the provisions of the 
 statute have been held not to apply {r). 
 
 There is a difl'erence between this statute and the statutes of ^ ^^"''^ trustee 
 
 cannot set-otf 
 
 set-off as to the degree of interest which must be had m the iu buiikniytcy. 
 <lebt from the bankrupt. The statutes of set-off are intended 
 to prevent cross-actions. If the debts are legal debts, due to 
 oach in his own right, it is sufllcient, though the plaintiff or 
 defendant may claim their respective debts as a trustee for a 
 third person. But under the Bankruptcy Acts, the mutual credit 
 clause has not been so construed. The object of this clause is 
 not to avoid cross-actions, but to do substantial justice between 
 the parties, where a debt is really due from the bankrupt to 
 the debtor to his estate. It does not authorise a set-off where 
 the debt, though legally due from the bankrupt to the debtor, 
 was really due to him as trustee for another ; and though re- 
 coverable in a cross-action, would not have been recovered for 
 his own benefit (s). Therefore a defendant was not allowed to 
 set off the amount of a bill, in which he had no interest, but 
 which he had obtained in order to claim credit for the amount 
 
 ^•24 ; see further, Adky v. Garncy, L. R. 4 C P. 714 ; 38 L. J. C. P. 357, 
 
 ^"^ (l)' aJoom V. J/m%, 2 V.m?. N. C. 138 ; Wood v. Smith, 4 M. & W. 
 525 ; Yates v. Sherrington, 11 .M. & W. 42; Grahavi v. AUsopp, 3 Lxch. 
 186. 
 
 (p) Kinder v. Bxittcrworth, G P.. & C. 42. 
 
 (7) Bittleston v. Timmis, 1 C. B. 3S9, 399, 400. See Sadcyv Johnson, 
 L. 11. 6 C. P. 279 ; affirmed L. R. 7 C. P. 263 ; 41 L. .J. C P. 211 ; and the 
 commeuts upon and explanation of that case in Ex rarte Moncr 12 Oh U 
 491 ; 49 L. J. Bkcy. 9. See, also, as to the respective ri-hts of a landlord 
 And the trustee of a bankrupt tenant, Alloicatf v. Stecrc, 10 Q. h. D. 22 ; 
 
 £x parte D>/kc, 22 Ch. D. 410. t t> . n p «^i ■ -^S T T C P 
 
 (r) iVew Quthrada Co. Limited v. Carr, L. R. 4 C. P. 6ol , 38 L. J. t. 1. 
 
 *283 ; decided upon 12 & 13 Vict. c. 106, s. 171. 
 
 (s) Per Cur., Fonter v. Wilson, 12 M. k \V. 191, 203.
 
 138 
 
 MUTUAL CREDIT IN BANKRUPTCY. 
 
 Credit must 
 exist at time 
 of bankniiitcj. 
 
 So witli 
 mutual 
 dealings. 
 
 Set-oft" not 
 limited to 
 debts. 
 
 against a debt owed by himself to tlie bankrupt acceptor (/). 
 Nor the amount of the bankrupt's notes, which the defendant, 
 a banker, had received hond fide from his customers, but on 
 condition that he was only to credit them with the amount 
 which was paid in respect of them by the assignees ; because 
 he could gain nothing in any event by the notes, but all the 
 money received upon them would be received to the use of the 
 person who transferred them (?/). But a broker insuring in 
 his own name on behalf of an undisclosed principal, for whom 
 he acts on a del credere commission, guaranteeing the solvency 
 of the underwriter, has been considered to have a real interest in 
 the contract , sufficient to entitle him to set-off a loss against a claim 
 of theassigneesofabankruptunderwriterfor unpaid premiums(a;). 
 
 Although, as we have seen, it is not necessary that there 
 should be an actual debt between the parties at the time of 
 bankruptcy, since possession of a bill not then due will be 
 sufficient ijj), the statute does not apply unless the mutual 
 credit existed at that time. Therefore, where plaintiff and 
 defendant were jointly entitled to the benefits of a charter- 
 party, and the plaintiff assigned his interest to a third party, 
 giving notice of the assignment to the defendant, and after- 
 wards became bankrupt, it was decided that the assignment had 
 put an end to the credit, and therefore that it could not be the 
 ground of a set-oflF. But a mere nominal assignment of a debt, 
 before the bankruptcy of one of the parties to a mutual credit, 
 would not alter it {z). 
 
 So with mutual deahngs the line as to set-off must as a 
 general rule, and in the absence of special circumstances, be 
 drawn at the commencement of the bankruptcy {a). 
 
 A further difference between this section of the Bankruptcy 
 Act, 1883, and the statutes of set-off, arises out of the provision 
 which, instead of restricting the set-off to debts in the strict 
 
 (i) Fair v. M'lver, 16 East, 130 ; Belcher v. Lloi/d, 10 Bingh. 310 ; 
 Lackivgton v. Covibc.i, 6 Bing. N. C. 71 ; Lond. Bonih. tb Med. Bk. v. 
 Narraioay, L. R. 15 Eq. 93 ; 42 L. J. Ch. S29. 
 
 (u) Forster v. Wilson, vbi sup. 
 
 (x) Lee V. Bullcn, 8 E. & 1$. 692 (a) ; 27 L. J. Q. B. 161. 
 
 iy) Alsager v. Vurrie, 12 M. & W. 751. 
 
 {z) Boyd V. Mangles, 16 IM. & W. 337, 344. 
 
 (a) In re Gillespie, Ex p. Beid, 14 Q. B. D. 963 ; 54 L. J. Q. B. 342 ; 
 In. re Milan Tramways Co., 25 Ch. D. 587; 53 L. J. Ch. lOOS. Ex- 
 ceptional cases may, however, arise where the act of bankruptcy has been 
 secret, Elliott v. Turqaand, 7 App. C. 79 ; 51 L. J. P. C. 1.
 
 MUTUAL CREDIT IN BANKRUPTCY. 
 
 139 
 
 legal sense of the word, directs in wide terms, that where there 
 have been mntual credits, mutual debts, or otiier mutual dealings 
 between the bankrupt and any other person "proving or 
 claiming to prove a debt under the receiving order," an account 
 shall be taken, and the balance paid. By section 37 of the 
 same Act (h), with the exception of demands in the nature of 
 unliquidated damages arising otherwise than by reason of a 
 contract, promise, or breach of trust (c), and of debts or 
 liabihties, the value of which the Court may pronounce to be Future 
 incapable of being fairly estimated, all " debts and liabilities, liabilities, 
 present or future, certain or contingent," are to be deemed to 
 be debts provable in bankruptcy ; and the definition of the word 
 liability is, that it shall for the purposes of the Act, "include 
 any compensation for work or labour done, any obligation or 
 possibility of an obligation to pay money, or money's worth, on 
 the breach of any express or implied covenant, contract, agree- 
 ment, or undertaking, whether the breach does or does not 
 occur, or is or is not likely to occur, or capable of occurring, 
 before the discharge of the debtor ; and generally it shall 
 include any express or implied engagement, agreement, or 
 undertaking to pay, or capable of resulting in the payment of 
 money or money's worth, Avhether such payment be as respects 
 amount fixed or unliquidated; as respects time, present 
 or future, certain or dependent on any one contingency, or 
 on two or more contingencies : as to mode of valuation, 
 capable of being ascertained by fixed rules, or as matter of 
 opinion " (d). 
 
 (h) 46 & 47 Vict. c. 52. ^.^ „ ., ^ 
 
 (c) See as to set-off in cases of imliquidated damages ; Gibson ^-J^en I 
 Bin- N. C. 743 ; Groom v. West, 8 Ad. & El. 758 ; Buchanan v. Fmdlay, 
 9 B° & C. 738 ; Booth v. Hutchinson, L. E. 15 Eq. 30 ; 42 L. J. Ch. 492 ; 
 West Y. Bakiv, 1 Ex. D. 44 ; 45 L. J. Ex. 113 ; Ex parte ^aterj, L. R. 
 8 Ch. 562 ; Ex parte Peacock, ib. 682 ; Feat v. Jones, 8 Q. B. D. 14/ ; JacJc 
 V. Kipping, 9 Q. B. D. 113. ^ _ » 
 
 (cZ) Under the Judicature Act of 1875, 38 & 39 \ict. c. /7, s. iO, ss 37 & 
 38 of the Bankruptcy Act of 1883 are imported into proceedings tor the aa- 
 ministration of the assets of a deceased person, whose estate is insolvent and 
 for the winding-up of an insolvent company under the Companies Acts 18bi 
 and 1867. In such cases claims for unliquidated damages may be set-ofl ; 
 Mersey Steel <L- Iron Co. v. Naylor, 9 Q. B. D. 648 ; afld 9 App. Ca. 434 ; 
 53 L J. Q. B. 497. Former Acts, in force before 1869, contained clauses 
 providing for the proof of debts payable upon a contingency, and liabilities to 
 pay upon a contingency, upon the construction of which there were numerous 
 judicial decisions ; but under the extensive words of the present Act, these
 
 140 
 
 MUTUAL CREDIT IxV BANKRUPTCY. 
 
 Case must 
 admit of an 
 account beinj 
 taken. 
 
 It seems, however, that even uow a deht may be provable 
 under s. 37, though it cannot be set off under s. 38. A poHcy- 
 holder in a life assurance company borrowed money from the 
 company on his policy. Before the death of the assured the 
 company was wound up, and an estimated value was put upon 
 the policy. Afterwards, the policy-holder filed a petition for 
 liquidation, and a trustee was appointed. The official liquidator 
 of the company proved against the estate of the policy-holder 
 for the amount advanced to him, and the trustee claimed to set 
 off the estimated value of the iiolicy. It was held that he could 
 not do so. James, L.J., said, " The mutual credit clause in 
 the Bankruptcy Act, 18G9, enlarged by these words 'mutual 
 dealings,' still requires that there must be something of an 
 account to be taken of what is due upon the one side and what 
 is due upon the other. In that sense there never was anything 
 due from the insurance company of which an account could be 
 taken." And Mellish, L.J., said, " If this company had never 
 stopped or been wound up, and the company had come to prove 
 for the debt due, the trustee never could have claimed a set-off. 
 There would have been no cause of action and no proof at all. 
 It does not in my opinion make any difference that the company 
 is being wound up. It appears to me that that fact does not 
 bring it within the ' mutual credit ' clause. I apprehend that 
 the value of policies is not a sum due at all, but it is a sum 
 which is arrived at under the winding up for the purpose of 
 regulating the proof of debts. But it never was a debt, nor is 
 it a sum which ever, in the proper sense of the word, would 
 become payable as for money due uuder the mutual credit 
 clause ; and I think, therefore, that the liquidators are entitled 
 to prove for the full amount " {c). 
 
 AVhere, however, the policy had actually matured, before the 
 commencement of the action though after the commencement 
 of the liquidation, the assured was allowed to set-off" the policy 
 money due to him against the liquidator's claim for money lent 
 l)y the company on the policy (/). 
 
 decisions no longer require notice here. They will be found, if required, in 
 pp. 58-60, 1st ed. 
 
 (e) Ex parte Price, L. R. 10 Ch. 648. The Act of 1869, under which this 
 case was decided, contained similar provisions to those in tlie Act of 1883. 
 
 (/■) Sovereign Life Assurance Co. v. Dochl [1892], 2 Q. B. 573 ; (C. A.) 
 62 L. J. Q. B. 19.
 
 MUTUAL CREDIT IN BANKRUPTCY. 141 
 
 In cases to which the statutes applies, the eifect of s. 38 is Set-off extin- 
 to make the set-off compulsory, so that the sum due by one ^"^^ '^^ 
 party operates as a payment, 2^ro tanio, of the amount claimed 
 by him. And if he has a lien or security for the amount of 
 his debt, as soon as the set-off extinguishes the debt, it also 
 destroys the lien {g). 
 
 {g) Lx parte Burnett, L. E. 9 Ch. 293, 297 ; 43 L. J. Bank. 87.
 
 CHAPTER III. 
 
 1. Damages Limited hy Amount 
 claimed. 
 
 2. Liquidated 
 Penalty. 
 
 Damages and 
 
 Damages can- 
 not exceed 
 amount laid. 
 
 Nor amntint 
 liquidated by 
 previous 
 agreement. 
 
 Before proceeding to discuss the rules of law, by which 
 damages are limited in the various forms of action, it will be 
 necessary to point out two cases in which they are limited by 
 the acts of the parties themselves. 
 
 The first case involves no difficulty. It arises out of the 
 rule, that the plaintiff cannot recover greater damages than he 
 has claimed (a). It is said indeed by Lord Coke (b), that in 
 some cases the plaintiflF might have judgment for more damages 
 than he has counted for ; and this dictum was relied on by 
 Lee, C. J., in Ba// v. Listei- (c). It has been pointed out, how- 
 ever, by Lord EUenborough, that the mistake arose from a mis- 
 conception of an old case in the Year Books (dj. "It by no 
 means establishes that the plaintiff may have more damages 
 against the defendant than what he has counted for against 
 him, but that having counted in detinue against the defendant 
 for damages to a certain amount, he may recover against the 
 garnisliec (against whom he has alleged no particular amount 
 of damages) a greater sum than he has laid as his damages 
 against the defendant " (c). 
 
 The second case presents much greater difficulty. It is that 
 in which the parties to a contract by previous agreement, fix 
 
 (a) Cheveley v. Morrison, 2 W. Bl. 1.300 ; Watkins v. Moryan, 6 C. & P. 
 661. 
 
 (6) 10 Rep. 117 b. 
 
 {r.) Andr. 384. 
 
 id) 8 Hen. VI. 5, a. 
 
 (e) 4 M. & S. 99 ; 1 Roll. Abr. 578.
 
 LIQUIDATED DAMAGES. 143 
 
 the damages for its breach at a particular sura. Here the 
 question at once arises, whether the sum so fixed ought to be 
 regarded as a penalty, or as liquidated damages. 
 
 This distinction is a most important one, because where the Distinctions 
 sum consists of the liquidated damages for breach of the agree- '^^^^^^^n 
 
 ■^ ° ° penalty and 
 
 nient, fixed and agreed upon between the parties, that very liquidated 
 sum is the ascertained damage, and the jury are confined to '^^"^''^S^^- 
 it (/). And if a verdict is given for a smaller sum, a new trial 
 will be granted (//). And of course equally so if the verdict 
 were for a larger sum. On the contrary, where the sum is 
 treated as a penalty, either more or less than the amount stated 
 may be recovered. 
 
 Upon both of these points, however, there are some further Necessary to 
 niceties to be observed. And first as to cases where the ^"''/." P^"' , 
 
 for liquidated 
 
 damages are liquidated ; although the plaintiff is entitled to damages, 
 the exact sum, and can in no case recover more, it seems he ^^ ^ ' 
 may recover less, or nothing, unless he sues in form for the 
 precise amount. Therefore, where the defendant covenanted 
 not to lop any trees without the consent of the plaintiff, under 
 a penalty of 20/. for each tree over and above the actual value 
 of the tree, and the plaintiff sued for breach of the covenant 
 not to lop, without alleging non-payment of the 20?. ; it was 
 held, that the covenant (even assuming the damage to be 
 liquidated), was alternative, not to lop, or, if he did, to pay 
 liquidated damages. " If, then, the plaintiff is seeking to re- 
 cover liquidated damages, he should have alleged, that though 
 the defendants lopped the trees, they did not pay the stipulated 
 amount : otherwise it does not follow that they have broken 
 their covenant. We must assume from this breach, that the 
 plaintiff is seeking to recover an unliquidated amount, in which 
 case the jury are at liberty to give such damages as they think 
 he has sustained " (h). There the meaning of the covenant 
 was held to be, first, that the defendant would not lop the 
 trees ; and, secondly, if he did, that he should pay a definite 
 amount. The plaintiff had therefore the option of suing 
 generally for breach of the agreement, or specifically for the 
 
 (/) Loife V. Peers, 4 Burr. 2229 ; Crisdce v. Bolton, 3 C. & P. 4i2, over- 
 ruling Ilandall v. Everest, 2 C. & P. 577. 
 (q) Farrant v. Olmius, 3 B. & A. 692. 
 (h) Hurst V. Burst, 4 Exch. 571 ; 19 L. J. Ex. 413.
 
 144 
 
 LIQUIDATED DAMAGES, 
 
 Where there 
 is a penalty, 
 plaintiff may 
 recover less or 
 niorj tlian the 
 amount. 
 
 Origin of the 
 distinction 
 lietween a 
 ])eiialty ami 
 liquidate I 
 damages. 
 
 sum agreed on. Bat when the covenant is, that the defendant 
 may do a thing, provided he jDays a particular amount, there 
 the plaintiff can only sue for the amount stated, being the price 
 put upon the permitted act (/), 
 
 In the next place, as to a penalty, there is a distinction 
 according to the 2uode in which the plaintiff sues, which may 
 be well stated in the words of Lord Mansfield : " There is a 
 difference between covenants in general, and covenants secured 
 by a penalty or forfeiture. In the latter case, the obligee has 
 his election. He may either bring an action of debt for the 
 penalty, and recover it (after which recovery of the penalty he 
 cauiiot resort to the covenant, bccaase the penalty is to bo a 
 satisfaction for the whole), or if he does not choose to go for 
 the penalty, he may proceed upon the covenant, and recover 
 more or less than the penalty, ioties quoties " {Ic). When the 
 plaintiff sues in form for the penalty the jury cannot gO' 
 beyond it ; but within it they may give him any compensation 
 to which he can prove himself entitled (/). On the other hand, 
 where a charter-party was secured by a penalty, it was ruled 
 that upon breach, the plaintiff had his choice, either to receive 
 the penalty and rescind the contract, or to bring an action 
 upon the contract, and let the covenant stand, and so obtain 
 greater damages than the penalty {m) ; though it would have 
 been otherwise if the agreement had been for liquidated 
 damages {n). 
 
 It is probable that the distinction between a penalty and 
 liquidated damages is seldom, or never, present to tlie minds 
 of those who enter into agreements, and the Courts in recent 
 times have often expressed a wish that the simple plan had 
 been invariably adopted of allowing people to enter into any 
 agreement they liked, and keeping them to it. The first 
 
 (0 Levjli T. LilUc, 6 H. & N. 165 ; 30 L. J. Ex. 2.5. A provision that if 
 a person does a paiticular thing he shall pay a particular sura of money, docs 
 not cai-ry with it the right to do the particular thing on payment, if the act 
 itself is forbidden. It merely gives the other party to the agreement an 
 .ilternative remedy in case of breach. Weston v. Metropolitan. Asylum, 
 8 Q. 15. D. 387 ; 9 Q. B. D. 404 ; 51 L. J. Q. B. 399 ; and %qq post, p. 153, 
 note ('0. 
 
 {h) LoK-e X. Peers, 4 Burr. 2228. 
 
 {l\ Wilheariix. Ashton, 1 Camp. 78 ; WMcy. Clarkson, fi T. K. 303. 
 
 {m) Wintrr v. Trimmer, 1 W. Bl. 395 ; Harrison v. Wright, 13 East, 
 43;i ; Mnylam v. Norris, 2 D. & L. 829. 
 
 {n) 13 East, 345.
 
 OR PENALTY. 145 
 
 relaxation of such a system commenced with the Courts of 
 Equity. Tliey drew a distinction between the primary inten- 
 tion of a contract, and the machinery contained in the contract 
 by which that intention was to be cirried out. If the primary 
 object was to secure the doing, or refraining from a particular 
 act, they considered that the party to be benefited should be 
 satisfied if they compelled or forbade the act in question, or 
 where this was impossible, if they awarded him reasonable 
 compensation. They disregarded the penalties or forfeitures 
 which the parties themselves had agreed to. In other words, 
 they substituted their own machinery for that which was pro- 
 vided by the parties. But where the primary intention was, 
 that if some particular act was not done, then some other act 
 should be substituted for it, they held that the alternative act 
 was not machinery, but the essence of the contract, against 
 which no relief could be given. As Lord Mansfield said in 
 Lowe V. Peers (o), " In leases containing a covenant against 
 ploughing up meadow, if the covenant be not to plough, and 
 there be a penalty, a Court of Equity will relieve against the 
 penalty ; but if it is worded, to pay £5 an acre for every acre 
 ploughed up, there is no alternative, no room for any relief 
 against it, no compensation ; it is the substance of the agree- 
 ment," 
 
 The Courts of Common Law originally recognised no such ETect of 
 distinction, treating every part of the contract as being equally ^^■^*- ^'^ ^-^^ 
 binding. The result of this conflict was that no action could s. 8." 
 be brought for a penalty, without the action being restrained. 
 That induced the legislature to interfere by stat. 8 & 9 Will. III., 
 0. 11, s. 8, which provided that "In all actions in any Court 
 of record upon any bond, or in any penal sum, for non-perform- 
 ance of any covenants or agreements, contained in any inden- 
 ture, deed, or writing, the plaintiff may assign as many 
 breaches as he shall think fit ; and the jury shall assess not only 
 such damages and costs as have heretofore been usually done, bat 
 also damages for such of the breaches as the plaintiff upon tiie 
 trial of the issues shall prove to have been broken." The coarse 
 prescribed by the statute was, after some conflicting decisions, 
 
 (o) 4 Burr. 2229. 
 M.D.
 
 146 
 
 LIQUIDATED DAMAGES, 
 
 Penalty, or 
 liquidated 
 damages, is a 
 question of 
 law. 
 
 held to be obligatory (p). The result was, that whenever a 
 plaintiff sued to recover a fixed sum of money as being payable 
 by the defendant upon a breach of contract, the Court had to 
 decide whether such sum was a iocnal sum within the meaning 
 of the statute. If it was, then he could only recover the actual 
 damages he had suffered. If it was not a penal sum, then they 
 were bound to award him the amount specially agreed on, 
 neither more nor less (q). 
 
 The question whether a sum mentioned in an agreement to 
 be paid for a breach is to be treated as a penalty, or as liqui- 
 dated and ascertained damages, is a question of law to be 
 decided by the judge, upon a consideration of the whole in- 
 strument (r). And the principle upon which he is to proceed 
 is, simply to ascertain the real intention of the parties from the 
 language they have used (s). The following rules are offered 
 as aiding to ascertain that intention : 
 A sum stated I. Where the sum is expressly stated to be a penalty, and 
 to be a penalty j-j-^g^.g r^^.g ^0 Other words or circumstanccs altering, controlling, 
 isjjrimajcuie ^^_ effecting this Statement, the sum cannot be considered as 
 liquidated damages (/). But the language used in describing 
 the amount payable on a breach is not conclusive. Where the 
 agreement was, " In consideration that A., of M., surgeon, will 
 engage me the undersigned B. as assistant to him as surgeon, 
 I, the said B., promise the said A. that I will not at any time 
 practise as surgeon at M., or within seven miles thereof, under 
 a penalty of 500/.," this was held to be liquidated damages. 
 Coltman, J., said, " Although the word ' penalty,' which would 
 prima fade exclude the notion of stipulated damages, is used 
 here, yet we must look at the nature of the agreement and the 
 surrounding circumstances, to see whether the parties intended 
 the sum mentioned to be a penalty or stipulated damages. 
 Considering the nature of this agreement, and the difficulty 
 
 (p) 1 Wms. Notes to Saunders, p. 6S. 
 
 \(l) This explanation of the mode in which the Courts of common law came 
 to adopt the doctrines of equity was given by Bramwell, B., in Betts v. Biirch, 
 4 H. & N. 50G ; 28 L. J. Ex. 267, which was approved by Willes, J., in 
 Ilinton V. Sparkcs, L. R. 3 C. P. at p. 16G ; 37 L. J. C. P. 81. See also 
 Lord El/Jdnstone v. MonUand, 11 App. Ca. at p. 348. 
 
 (?•) Saintev v. Ferguson, 7 C. B. 727. 
 
 (s) Dinw.h V. Corlett, 12 Moore, P. C. at p. 229 : Reynolds v. Bridr/e, 6 
 E. & B. 528 ; 2f) L. J. Q. B. 12. 
 
 (0 Smith V. Dickenson, 3B. &B, 630 : Slowman^. Walter, 1 Bro. C. C. 418.
 
 OR TENALTY. 147 
 
 the plaintiff would be under in showing what specific damage 
 lie had sustained from the defendant's breach of it, T think 
 we can only reasonably construe it to be a contract for stipu- 
 lated and ascertained damages " (?0- -"^^d so on a guarantee 
 that a vessel in which the plaintiff had shipped goods, should 
 sail before any other vessel then in berth, " under penalty of 
 forfeiting one-half of the freight," it was held that one-half of 
 the freight could be recovered as liquidated damages, without 
 evidence of actual damage (x). 
 
 On the other hand, notwithstanding the contrary ruling in Use of the 
 Reilltj V. Jones (//), it is now settled that the mere use of the Jated'dlrali^e''' 
 Avords " liquidated damages " is not decisive against the sum not conclusive. 
 being held to be a penalty. The principle is, that althougli 
 the parties may have used the term " liquidated damages," yet 
 if the Court can see upon the whole of the instrument taken 
 together, that there was no intention that the entire sum 
 should be paid absolutely on iion-performance of any of the 
 stipulations of the deed, they will reject the words and consider 
 it as being in the nature of a penalty only (z). 
 
 In Kemble v. B'arren {a), the Court held a sum to be a 
 penalty which had been described by the parties themselves as 
 ■"liquidated and ascertained damages, and not a penalty or 
 penal sum or in the nature thereof." 
 
 Where it is doubtful from the terms of the contract, in cases of 
 whether the parties meant that the sum should be a penalty ;'f^';''*; ^"^1^;;^' 
 or liquidated damages, the inclination of the Court will be to of penalty, 
 view it as a penalty (&). But the mere largeness of the amount 
 fixed will not, per se, be sufficient reason for holding it to 
 be so (c). 
 
 (u) Sainter v. Ferguson, 7 C. B. 716, 728. And see Lelghton v. Wales, 
 S M. & W. 545 : Parfitt v. Chnmhre, L. K. 15 Eq. 36 ; 42 L. J. Ch. 6. 
 
 (x) Sparrow v. Paris, 7 H. & N. 594 ; 31 L. J. Ex. 137. 
 
 (y) 1 Bingh. 302. ,. „ ,xt 
 
 (;:) Per Parke, B., Green v. Price, 13 M. &W. 701 ; affirmed, 16 M. & W. 
 346 : Cole v. Sims, 23 L. J. Ch. 258. The use of the expression " penalty, 
 or '-liquidated damages," signifies nothing, the veaj intention of the parties 
 having to be ascertained. See Sparrovj v. Paris, 7 H. & N. 594 ; 31 L. .7. 
 Ex. 137 : per Bramwell, B., Bdts v. Burch, 4 H. & N. at p. 510 ; 28 L. J. 
 Ex. at p. 271 : Dimech v. Corhtt, 12 Moo. P. C 299 : Magee v. Lavdl, L. K. 
 9 C. P. 107 ; 43 L. J. C. P. 131. 
 
 (a) 6 Bing. 141, post, p. 151. t, , o r. o t> 
 
 (6) Barton v. Glover, Holt, N. P. C. 43: Crisdee v. Bolton, o L. & 1. 
 ■243 
 
 (c) Ihid., and per Lord Eldon, Astley v. Weldon, 2 B. & P. 351 :,and ^er 
 Lord Romilly, Herbert v. Salisbury and Yeovil Ry. Co., L. R. 2 Eq. 2-4. 
 
 L 2
 
 148 
 
 LIQUIDATED DAMAGES, 
 
 Principle of 
 decision as to 
 ])enalty or 
 liquidated 
 (Umajres. 
 
 Case of 
 a smaller 
 sum ceciired 
 by agreement 
 for a greater 
 one. 
 
 Thompson v. 
 Hudson. 
 
 II. In considering whether a stipuUuion to pay a sum of 
 money on breach of condition is to be treated as a penalty or 
 as liquidated damages, the test appears to be, whether the loss 
 which will accrue to the plaintiff from an infringement of the 
 contract can, or cannot, be accurately or reasonably calculated 
 in money antecedently to the breach. If it can be so calcu- 
 lated, then the fixing of a larger sum of money will be treated 
 as a penalty. Where the loss is absolutely uncertain it will be 
 treated as liquidated damages. 
 
 1. Where the payment of a smaller sum is secured by a 
 larger, the sum agreed for must always be considered as a 
 penalty {d). And, therefore, where a contract to do, or abstain 
 from something, is secured by an agreement to pay a fixed 
 sum, and upon the face of the same instrument a certain 
 damage less than that sum is made payable, in case of a breach 
 of contract, that sum shall be construed to be a penalty (e). 
 The facts in reference to which the above rules Avere stated 
 were as follows. There were mutual agreements between the 
 manager of a theatre and an actress, that he should pay her a 
 certain weekly salary and travelling expenses, and that she 
 should perform at his theatre, and comply with all its rules, 
 and be subject to and pay all fines ; and that either of them 
 neglecting to perform that agreement should pay to the other 
 200/. The action was for a refusal to perform. It was held 
 that the 200/. was a penalty, otherwise a refusal to pay a 
 trifling fine, or to do something which l)y the rules of the 
 theatre was punishable by a fine, would have entailed the 
 entire liability. 
 
 The same rule, substantially, was laid down by Lord Hather- 
 ley, C, in the case of Thompson v. Hudson {/), in the following 
 words: — "■ "Where there is a debt actually due, and in respect of 
 that debt a security is given, be it by way of mortgage, or be it 
 by way of stipulation that in case of its not being paid at the 
 time appointed, a larger sum shall become payable, and be paid, 
 in either of those cases equity regards the security that has 
 been given as a mere pledge for the debt, and it will not allow 
 
 (rf) Per Chambre, J., Asiln/ v. Weldon, 2 B. & P. 354 : Per Coleridge, J., 
 Pcipiohh V. Bn\h/e, Q E. k B. 528 ; 2(3 L. J. Q. B. 12. 
 (e) Per Lord Eldou, 2 B. & P. 350. 
 U') L. II. 4H. L. 1, 15.
 
 OR PENALTY. 149 
 
 either a forfeiture of the property pledged, or any augmenta- 
 tion of the debt as a penal provision ; on the ground that equity 
 regards the contemplated forfeiture, which might take place at 
 law with reference to the estate, as in the nature of a penal 
 provision, against which equity will relieve when the object in 
 view, namely, the securing of the debt, is attained ; and regard- 
 ing also the stipulation for the payment of a larger sum of 
 money, if the sum be not paid at the time it is due, as a penalty 
 and a forfeiture against which equity will relieve." 
 
 But if the larger sum is actuallv due. and the creditor agrees Otherwise 
 to take a lesser sum, provided that sum is secured in a certain ^ grea'er 
 
 ' '■ Bum ayctually 
 
 way and paid on a certain day, and that if those stipulations be due. 
 not performed, he shall be entitled to recover the whole of the 
 original debt, such remitter to his original right does not con- 
 stitute a penalty, and a Court of Equity will not interfere to 
 prevent it (g). 
 
 Upon this principle, " if a mortgagor agrees to pay 5 or C Varying rates 
 per cent, interest, and the mortgagee agrees to take less, say 4 °^ mterest. 
 per cent., if it is paid punctually, that is a perfectly good agree- 
 ment ; but if the mortgage interest is at 4 per cent., and there 
 is an agreement that if it is not paid punctually 5 or G per 
 cent, interest shall be paid, that is in the nature of a penalty, 
 which the Court will relieve against." But a high rate of 
 interest does not of itself constitute a penalty. And if a con- 
 tract provides that purchase money shall bear interest at one 
 rate up to a particular date, at a higher rate up to a further 
 date, and at a still higher beyond that period, such a contract 
 is perfectly lawful, and will be enforced. And a proviso that 
 these stipulations shall not entitle the persons who are to pay 
 the higher rate of interest to delay the payment, rather tells 
 
 (g) Thompson Y. Hvdmn, L. E. 4 H. L. 1 ; 38 L. J. Ch. 431. This -was 
 decided in the House of Lords in opposition to the Master of the EoUs and the 
 Lords Justices. Lord "Westbury said, that any plain man walking the streets 
 of London would hare said that it was in aeeordance ■with common sense, and 
 if he were told that it would l>e requisite to go to three tribunals before getting 
 it accepted, would have held up his hands with astonishment at the state of 
 the law. In Lord Ashiown t. Wfiite, 11 Ir. L. R. 400, where a demise of 
 land at a yearly rent of 187/., with usual clauses for distress and entry on 
 non-payment; contained an agreement that so long as the lessee performed the 
 covenant, the lessor would be content -w-ith the yearly rent of 93/. , payable on 
 the same days as the first reserved rent, it was held that the larger rent 
 was not a penal rent, and that ejectment could be maintained on its non- 
 payment.
 
 event. 
 
 150 LIQUIDATED DAMAGES, 
 
 against them than for them (h). So where an award directed 
 that the defendant should secure to the plaintiff an annuity of 
 1,200/. per annum within two months, and if at the end of the 
 second month the annuity was not legally secured, should on 
 the last day of that month, and of each succeeding month until 
 such annuity was legally secured, pay a further sum of 100/. 
 in addition to the payments due under the annuity, " as a 
 penalty for delay in the legal settlement of the same ; " it was 
 held upon default in securing the annuity, that the plaintiff 
 Avas entitled to the 100/. monthly in addition to the fall amount) 
 of the annuity (i). Where a bond stipulated for the payment 
 of a sum of money by instalments, a proviso that the whole 
 amount should immediately become payable in default of any 
 single instalment, is not a penalty, and will be literally enforced, 
 CA'en though the instalments are calculated so as to cover 
 interest and premia for the insurance of the debtor's life (lo). 
 "Where there -• There never was any doubt that if there be only one eventi 
 
 is on^ly one npou which the money is to become payable, and there is no 
 adequate means of ascertaining the precise damage that may 
 result to the plaintiff from the breach of the contract, it is 
 perfectly competent to the parties to fix a given amount of com- 
 pensation, in order to avoid the difficulty (/). And this, even 
 though the contract be one of indemnity, as an insurance 
 policy, and it can be proved that the plaintiff has not been, 
 damnified to the amount estimated (;»). And so it has been 
 repeatedly held, that where, upon a contract of sale, a sum of 
 money is deposited by the purchaser, with a stipulation that it 
 is to be forfeited on his failure to perform the contract, the 
 vendor is entitled to retain it, even though he has suffered less 
 damage or none (n). The same rule applies to all cases where 
 
 (/() Per Lord Romilly, M.E., Herbert v. Salisbury and Yeovil Rij. Co., 
 L. R. 2 Eq. 221—224. 
 
 (i) Parfitt V. Chambre, L. R. 15 Eq. 36 ; 42 L. J. Ch. 6 : General Credit 
 and Discount Co. v. Glcgg, 22 Ch. D. 549 ; 52 L. J. Ch. 297 : Rai Balkishen 
 V. Raja Run, L. R. 10 I. A. 162. 
 
 (k) Protector Loan Co. v. Gricc, 5 Q. B. D. 592 ; 49 L. J. Q. B. 812. 
 
 (I) Per Cresswell, J., Sainter v. Ferguson, 7 C. B. 730 : Fletcher y. Dyclie 
 2 T. R. 32. S'ixtrrow v. Paris, 7 H. & N. 594 ; 31 L. J. Ex. 137 : Flphin- 
 stone V. MonUand, 11 App. Ca. 332, pp. 345—348 : Laio v. Local Board 
 of Redditch, [1S92J 1 Q. B. 127 ; 61 L. J. Q. B. 172. 
 
 (m) Irvinrj v. Ma.nninci, 6 C. B. 391. 
 
 {n) Reilhj v. Jones, 1 Bingh. 302 : Hinton v. Sparlces, L. R. 3 C. P 161 • 
 37 L. J. C. P. 8 : Lea v. Whitaker, L. R. 8 C. P. 70,
 
 OR TENALTY. 151 
 
 a deposit is made as security for the performance of a contract, 
 even thouo-h there may be many stipulations, some of which 
 may be trifling, and some may be for the payment of money on 
 a given day (o). 
 
 ;>. The same sum cannot in the same agreement be treated Rule where 
 as a penalty for some purposes, and as liquidated damages for ^'^J^^'^^ events 
 others. Hence, where an agreement provides for several events, for. 
 and a fixed sum is made payable on any breach, if it would have 
 to be treated as a penalty in one or more events, it will be con- 
 sidered a penalty in regard to all. Accordingly, " where some 
 of the stipulations in a covenant are of a certain nature and 
 amount, and some are of an uncertain nature and amount, it 
 would be right to say, that as the sum could not be treated as 
 liquidated damages iu respect of one or more of the stipula- 
 tions, it ought not to be so treated in respect of the others " (jj). 
 This view of an agreement is invariably taken where some of 
 the breaches relate to pecuniary payments, which are in their 
 nature ascertained. 
 
 The leading case upon this part of the subject is that of KcmUc v. 
 Kemhle \. Farren {q). There the defendant had engaged to ^'"•»'^«- 
 act as principal comedian at Covent Garden for four seasons, 
 conforming in all things to the rules of the theatre. The 
 plaintiff was to pay him 3/. G.9. 8r/. every night the theatre 
 was open, with other terms. The agreement contained a clause 
 that if either of the parties should neglect or refuse to fulfil 
 the said agreement, or any part thereof, or any stipulation 
 therein contained, such party should pay to the other the 
 sum of 1,000?., to which sum it was thereby agreed that the 
 damages sustained by any such omission, &c., should amount ; 
 and which sum was thereby declared by the said parties to U 
 liquidated and ascertained damages, and not a penalty, or 
 penal sum, or in the nature tlwreof. Notwithstanding these 
 
 (o) Per Jesscl, :^LE., Wcdlis v. Smith, 21 Cli. D. at p. 25S ; 52 L. J. Cli. 
 at p. 149 ; apparently on the ground that the stakeholder is not authorised to 
 return the' whole deposit if the contract is broken, and that there is no mode 
 by which he can apportion any lesser sum as payable in the event of a breach. 
 
 (o) Per Coleridge, J., Reynolds v. Bridge, 6 E. & B. 52S ; ^6 L. J. Q. B. 
 12 Per Lord Eldon, Astley v. Weldon, 2 B. & P. 346, at pp. 350, 352 ; Re 
 Newman, 4 Ch. D. 724 ; 4(J L. J. Bank. 57 : Wcdlisx. Smith, 21 Ch. D. 243, 
 pp. 256, 268, 275 ; 52 L. J. Ch. 145, pp. 148, 154, 158 : Eix>hinstone v. 
 Monkland, 11 App. Ca. 332. tt t on 
 
 (2) 6 Bing. 141. See^ser Lord ^Vestbury, L. R. 4 H. L. 30.
 
 152 
 
 LIQUIDATED DAMAGES, 
 
 Cases whei'e 
 damage from 
 breach cannot 
 be measured. 
 
 sweeping words, the Court decided that the sum must be 
 taken to be a penalty, as it was not limited to those breaches 
 which were of an uncertain nature and amount. And Tindal, 
 C.J., said, "that a very large sum should become imme- 
 diately payable, in consequence of the non-payment of a very 
 small sum, and that the former should not be considered a 
 penalty, appears to be a contradiction in terms ; the case 
 being precisely that in which Courts of Equity have always 
 relieved, and against which Courts of LaAV have in modern 
 times endeavoured to relieve, by directing juries to assess the 
 real damages sustained by breach of the agreement" (r). And 
 the same decision was arrived at where the agreement was that 
 the defendant should grant a lease, and the plaintiff should 
 execute a counterpart and pay the expenses ; for the mutual 
 performance of which contract the parties bound themselves in 
 the penalty of 50<J/. to be recovered against the defaulter as 
 liquidated damages (s). 
 
 Ou the other hand, if there be a contract consisting of one 
 or more stipulations, the breach of which cannot be measured, 
 then the contract must be taken to have meant that the sum 
 agreed on was to be liquidated damages, and not a penalty (/). 
 A common instance is the case of agreements between profes- 
 sional men, binding a retiring partner, or an apprentice or 
 clerk, not to interfere with the business of the other. For 
 example, where a covenant for dissolution of partnership be- 
 tween attorneys contained an agreement, " that the said J. S. 
 will not within the next seven years carry on the business of 
 an attorney within fifty miles from E., nor interfere with, 
 solicit, or influence the clients of the late copartnership, and 
 if the said J. S. shall in any respect infringe the present cove- 
 
 (r) 6 Eing. 148. Such an agreement, however, it has been said, might be 
 made, for it is h\id down by Parke, B. , 1 Ex. 665, " that it would be compe- 
 tent for the parties to make a stipulation to j^ay a certain sum on the non- 
 performance of a covenant to pay a smaller sum ; but they must do so in 
 express terms ; and if that be done, I do not see how the courts can avoid 
 giving effect to such a contract." But see per Lord Hatherley in Thompson 
 V. Hudson, L. R. 4 H. L. p. 15, ante, p. 148. 
 
 (s) Boiji V. Ancell, 5 Bingh. ^. C. 390 : Davics v. Penton, 6 B. & C. 216 : 
 Cliarrington v. Lainrj, 6 Bingh. 242 : Beckham v. Dral-e, 8 M. & W. 846 : 
 Maejeev. Lavdl, L. R. 9 C. P. 107 ; 43 L. .J. G. P. 131 : In re Newman, 4 
 Ch. D. 724 ; 46 L. J. Bk. 57. 
 
 {t) Per Parke, B., Atkynsv. Kinnier, 4 Exch. 776, 783. So where a speci- 
 fied increased rent was to become jjayable on breach of any of the covenants in 
 the lease : Smith v. liyan, 9 Ir. L. II. 235.
 
 OR PENALTY. 
 
 153 
 
 nant, he the said J. S. shall pay the sum of 1,000/. as liquidated 
 damages, and not by way of penalty," the contract was literally 
 enforced (w). 
 
 4. It has been laid down broadly " that where articles contain Where tberc 
 covenants for the performance of several things, and then one gtiy^^^tions of 
 large sum is stated at the end to be paid on breach of perform- varj-ing im- 
 ance, that must be considered a penalty" (x). This dictum in P°''tanc<2- 
 its full extent is certainly not law, as it would apply to the case 
 of a contract containing several stipulations all of primary im- 
 portance, and equally uncertain as to the amount of damages 
 resulting from breach (//). A modified form of the rule was 
 stated by Lord Coleridge, C..J., in the case of Magce v. LaveU{z), 
 where he said, " If we look to the nature of the contract in the 
 ])resent case, it will be seen that it involves several events of 
 various degrees of importance, and therefore, according to the 
 general principle governing such cases, the sum mentioned must 
 be considered as a penalty, and not liquidated damages." A 
 third rule was laid down by Bayley, J., as follows : " Where 
 the sum which is to be a security for the performance of an 
 agreement to do several acts, will, in case of breaches of the 
 agreement, be in some instances too large, and in others too 
 
 (m) Galsworthy v. Strutt, 1 Exch. 659 ; 17 L. J. Ex. 226 : Eaidinsonv. 
 Clarke, 14 M. & W. 187. So Reynolds y. Bridge, 6 E. & U. 528 ; 26 L. J. 
 Q. B. 12. And where the form of the bond given upon the sale of a medical 
 practice, was that if any of certain prohibited things were done, and the sum 
 of 300Z. paid, then the bond should be void ; that sum was held recoverable 
 upon an infraction of the agreement : Mercer v. Irving, E. B. & E. 563 ; 27 
 L. J. Q. B. 291. But it does not follow in every such case, that a man may 
 elect to break his engagement by paying for his violation of the contract. 
 Therefore, where the condition of a bond given by a managing clerk to an 
 attorney, after reciting an agreement that the clerk should give a bond not to 
 practise within a specified distance, was that if he did so practise, and should 
 pay the sum of 1,000^. , the bond should be void, a Court of Equity, carrying out 
 the real intention of the parties, granted an injunction to prevent him from 
 practising : Howard v. JVoodtvard, 34 L. J. Ch. 47 : Jones v. Heavens, 
 4 Ch. D. 636. See too Weston v. Metropolitan Astjlum, 8 Q. B. D. 387 ; 
 9 Q. B. D. 404 ; 51 L. J. Q. B. 399 : National Provincial Bank of England 
 V. Marshall, 40 Ch. D. ITi ; 58 L. J. Ch. 229. But of course this was 
 upon the plaintiffs undertaking not to sue upon the bond. A man cannot 
 have his liquidated damages and his writ of injunction also : Carnes v. Aes- 
 litt, 7 H. & N. 158 ; 30 L. J. E.x. 348. 
 
 (x) Per Heath, J., Astley v. Weldun, 2 B. & P. p. 353 ; iier James, L.J., 
 Re Newman, 4 Ch. D. p. 731 ; 46 L. J. Bk. 57. 
 
 ((/) Per Coleridge, J., Reynolds v. Bridge, 6 E. & B. p. 540 ; 26 L. J. 
 Q. B. p. 16 : per Parke, B., Atkyns v. Kinnier, 4 Exch. p. 783 : Galsworthy 
 v. Strutt, 1 Exch. 659 ; 17 L. J. Ex. 226. 
 
 (s) L. R. 9 C. P. p. 115, approved by Bramwell, L. J. : Re Aewman, 4Ch. 
 D. p. 733 ; 46 L. J. Bk. p. 59.
 
 154 LIQUIDATED DAMAGES, 
 
 small a compensation for the injury thereby occasioned, that 
 sum is to be considered a penalty " {a). This rule seems to 
 rest, not upon the varying importance of the stipulations, but 
 upon the unsuitableness of the sum fixed upon in case of the 
 breach which would lead to an inference that the parties them- 
 selves did not contemplate being bound by it. The whole 
 subject was fully discussed in the recent case of Wallis v. 
 Smith (h). There the plaintiff agreed to sell an estate for 
 70,000/. to the defendant, and the defendant agreed to build 
 upon it, aud to complete the buildings within ten years. A 
 deposit of 5,000/. was to be paid by the defendant, and the con- 
 tract went on to provide, that " If the defendant should commit 
 a substantial breach of the contract, either in not proceeding 
 Avith due diligence to carry out and complete the works, or in 
 failing to perform any of the provisions therein contained, then 
 and in either of the said events the deposit money of 5,000/. was 
 to be forfeited ; and if the balance of such deposit had not then 
 been paid, then the defendant should forfeit and pay a sum of 
 money equal to such balance, the intention being that if default 
 was made by the defendant as aforesaid, he should forfeit and 
 pay to the plaintiff by way of liquidated damages, the sum of 
 5,0(10/., and the agreement to be void and of no eftect." Xo 
 part of the deposit of 5,000/. was paid by the defendant, who 
 expended nothing on the estate, and performed none of the acts 
 stipulated for. The plaintiff then sued for the 5,000/. as liqui- 
 dated damages, and it was held by the Court of Appeal, in 
 affirmance of the decision of Fry, J,, that he was entitled to re- 
 cover it. Jessel, M.E., after an exhaustive review of all the cases, 
 pointed out that although the above dicta seemed to lay down a 
 positive rule, the actual decisions were limited to cases where 
 one or more of the stipulations was or were for the payment of 
 a sum of money less than that named as liquidated damages. 
 He summed up as follows : *' Although (c) I wish to leave the 
 question open where there are several stipulations, and one or 
 more is or are of such a character that the damages must be 
 small, I do not wish for a moment to abstain from stating my 
 
 (a) Daries v. Pevton, 6 B. & C. p. 223 : aijproved by Alderson, B., Horner 
 
 Flintof, 9 M. & W. p. 681. 
 
 (Ij) 21 Ch. D. 243 ; 52 L. J. Ch. 145. 
 
 (c) 21 Ch. D. p. 265 ; 52 L. J. Ch. p. 152.
 
 OR PENALTY. 155 
 
 opinion that there is no such doctrine wliere there are several 
 stipulations, though they may not be of equal importance, or 
 wliere there are several stipulations irrespective of importance, 
 which is the doctrine laid down by Mr. Justice Heath, and 
 apparently approved of by Lord Justice James. There is neither 
 authority nor principle for such doctrine, and I cannot see that 
 it is established by any case which is binding- on this Court." 
 To the same effect was the judgment of Lord Justice Cotton. 
 He said (d), " It is not sufficient, in my opinion, to say that the 
 covenants to the breach of which this applies, are of varying 
 importance. That may be so, but yet the parties may very 
 reasonably come to tlie conclusion that they will agree between 
 themselves that the sum mentioned shall be assessed between 
 them as the damages, in consequence of the breaches of these 
 various covenants. Probably there may be an excepcion, that 
 Avhcre some of the covenants are of such a character that 
 obviously the damages which can possibly arise from a breach 
 in any way of that covenant would be very insignificant com- 
 pared with the sum which has been fixed by the parties, there 
 the Court will give the non-natural construction to the terms 
 used by the parties. In my opinion, that comes within the 
 same principle as where the courts have interfered, where one 
 of the covenants has been for payment of a sum of money where 
 the damage is capable of being assessed accurately, and is very 
 much below the sum named." 
 
 The result is, that an agreement with various covenants of 
 different importance is not to be governed by any inflexible 
 rule peculiar to itself, but it is to be dealt with as coming under 
 the general rule, that the intention of the parties themselves is 
 to be considered. If they have said that in the case of any 
 breach a fixed sum is to be paid, then they will be kept to their 
 agreement, unless it would lead to such an absurdity or in- 
 justice, that it must be assumed that they did not mean what 
 they said. 
 
 (rf) 21 Ch. D. p. 270 ; 52 L. J. Ch. p. 155. In an Irish case, a lease for 
 years contained a special provision for the course of husbandry to be observed 
 during the last four vears, with a covenant that, in the event of a breach of 
 the stipulated arrangement, the lessee should pay double rent from default 
 till the expiration of the lease : two out of three judges held that this was a 
 penalty, and the third judge held that it was liquidated damages : Dickson v. 
 Lough, 18 Ir. L. Rep. C. L. 518. The object of the covenant was to restore 
 the land at the end of the lease to a good condition for a renewed lettiug, and 
 it may be doubted whether the real meaning of the parties would not have 
 been better carried out by a literal enforcement of the covenant.
 
 CHAPTER IV. 
 
 INTEREST. 
 
 1. At Common Law. 
 
 2. As Damages. 
 
 3. Bij Statute. 
 
 4. 0)1 reversal of Decree. 
 
 The next point of a preliminary uatnrc which requires 
 notice, is the right to recover interest. This right exists in a 
 great number of actions, but I have thought it better, for the 
 sake of clearness, to place the whole subject before the reader 
 in a single view. 
 
 Interest is recoverable, either upon the original cause of 
 action, or again upon the amount of the judgment. It may 
 also arise either at common law, or by statute. 
 Interest at I. First, then, as to interest at common law upon the 
 
 common law. original cause of action. 
 
 It is now estabhshcd as a general principle that interest is 
 
 allowed by law only upon mercantile securities, or in those 
 
 cases where there has been an express promise to pay interest, 
 
 or where such promise is to be implied from the usage of trade, 
 
 or other circumstances (a). 
 
 On Lills and 1. As to the casc of bills of Exchange and promissory notes, 
 
 notes. ^I^jg ^.^^]q lias never been doubted. Some distinctions, however, 
 
 prevail as to the time from which interest is to be computed, 
 
 and the rate at whicii it is to be calculated, where any part of 
 
 the contract has been entered into abroad. This subject will 
 
 be discussed at length, post, Chap. VIII. 
 
 Express '-• ^ases in which there has been an express agreement in 
 
 agreement. words to allow interest, are, of course, quite clear. Where, 
 
 however, A. and B., who had jointly and severally granted 
 
 an annuity, mutually agreed each to pay one half of it, and 
 
 (a) Per Abbott, C. J., Ilifjrjins v. Sargent, 2 R & C. 349 : per Hall, V.C, 
 Jlilly. South Staffordshire Ry. Co., L. R. IS Eq. 154, 167 ; 43 L. J. Ch. 
 55r) -.per Lindley, J., L. C. d: D. By. v. S. E. liy. Co., [1892] 1 Ch. p. 140 ; 
 61 L. J. Ch. 294.
 
 INTEREST. 157 
 
 to iiidemaify the other against all actioas, suits, charges, 
 damages, demands, sums of money and expenses, which either 
 of them might incur through the default of the other in paying 
 his just share ; it was held that one who had paid more than 
 his just share was not entitled at law to interest (as interest 
 and not as damages) upon the surplus. The Court said, " The 
 contract is to pay the money and damages ; there is no express 
 contract to pay interest, nor any course of dealing from which 
 such a contract can be implied " {/>). 
 
 o. Where parties have acquiesced in a course of dealing, in Implied 
 which interest was exacted, they will be assumed to have con- ^^sreement. 
 tracted to pay it (c) ; and in this way even compound interest 
 may be charged as long as the accounts remain open (d). 
 But although compound interest may be charged, by means Compound 
 of half-yearly rests, where such a practice is assented to, it ^terest. 
 is not sufficient to show that such has been the usage of the 
 plaintiff, without proving that the defendant was acquainted 
 with it (e). A fortiori not, where compound interest had been 
 allowed under a mistaken belief that it was stipulated for by 
 the document under Avhich the debt was due (/). And even 
 la the case of merchants' accounts where this system prevails, 
 the plaintiff can recover no more than the principal upon the 
 last balauce, in which there is no new account, and no new 
 transaction, however long it may be before the action is brought 
 to recover the balance ; and the jury cannot give interest, still 
 less compound interest, upon the balance (g). And the same 
 rule applies between banker and customer. Accounts which 
 arc made up with yearly or half-yearly rests, while the relation- 
 
 (6) Bell V. Free, 1 Swanst. 90. 
 
 (c) Exiictrte Williams, 1 Rose, 399. .^07^,0^ 
 
 (d) Bruce v. Hunter, 3 Camp. 407 : Nervell v. Jones, 4 C. & P. 124 : 
 Eaton V. Bell, 5 B. & A. 34 : Ferjus^on v. Fyffe, 8 CI. & F. 121 : 3fosse v. 
 ><;cilt, 32 Beav. 269 ; 32 L. J. Ch. 756. ' t^ ,, . q^ , aq- 
 
 (e) Dawes v. Pinner, 2 Camp. 4SG, n. : Moure v. Voughton, 1 btark. 4b/. 
 And see WiUiamson v. WiUiamson, L. R. 7 Ei- 542, where acquiescence 111 
 a banker's charge of 500/. for a half year's commission on an overdrawn 
 account, was held not to entitle the banker to make the same charge as of 
 right in subsequent half-years. Also Croskill v. Bower, 32 Beav. bb ; 32 
 
 L.°J. Ch. 540. 
 
 (/) Da/u-rf/v. -S'Mi.c/«»-, 6 App. Cas. 181. 
 
 U,) Attwood V. Ta^ilor, 1 M. & G. at p 301 : Waring v. C^^hfc, I 
 Yes. Jr. 99 : Ex parte Bevan, 9 Yes. 223 : Fergusson v. Fj^e, 8 CI. & F. 
 121.
 
 158 INTEREST. 
 
 ship continues, only bear simple interest from the time it is 
 
 terminated by death or otherwise (A). 
 Where pay- Again, where a party undertakes to pay a debt by means of 
 
 ment to be |^-^ ^^^ which would, if oiven, bear interest, and fails to 
 
 made by bill. ' ^ o j i • i 
 
 give the note, the debt will bear interest from the time the 
 bill or note would have been due (i). But the contract to 
 pay by bill must be clearly made out. Therefore, where the 
 defendant undertook to pay money according to instructions 
 to be received from a third paroy, and the instructions given 
 were to pay it in discharge of a bill given by that third party, 
 and then in the plaintiff's hands, it was held that this was not 
 an undertaking to pay by bill, on which interest would run, 
 though interest would run on a direct guarantee for payment 
 of a bill (.;). 
 A question It is a question for the jury to say whether the defendant 
 
 of fact. ]^r^^ contracted to pay by bill or not, and slight evidence on 
 
 this point has been held sufficient. Goods were sold to the 
 defendant in January, and in April he wrote to the plaintiff, 
 saying, " The document you have sent me appears to be in the 
 nature of a bill, and being payable to jouv order, is good in 
 the market ; just what I wished to avoid. The document I 
 have wished to give you was simply my promissory note, 
 payable to yourself." Nothing was proved to have been said 
 at the time of the contract about payment, and no demand 
 for interest had ever been made, but the plaintiff claimed 
 interest in his particulars of demand. It was decided that 
 this letter offered some evidence of an agreement to pay by a 
 note, upon which the jury were warranted in giving interest (k). 
 The principle of these decisions, of course, is, that where a 
 person promises to give a bill, which would bear interest, the 
 law will imply an engagement, in case no bill is given, to pay 
 Bond with a interest as if it had been given (?). It seems to be on the 
 iieualty. Same principle that where a bond is given with a penalty in 
 
 a larger amount, to secure payment of a sum of money, 
 
 {k) Per Lord Selborne, C. , Bariicldv. Louglihorouyh, L. E. 8 Ch. p. 7 ; 
 42 L. J. Ch. 179. 
 
 (i) Slack V. Lowell, 3 Taunt. 157 : Marshall v. Pnole, 13 East, 98 : Farr 
 V. Ward, 3 M. & W. 25 : Shoadex v. Lord Sdsei/, 2 Beav. 359. 
 
 (/) JJaTC V. Ricknrds, 7 Bing. 254. 
 
 (k) Daris v. Smyth, 8 M. & W. 399. 
 
 {l) 3 Taunt. 161.
 
 INTEREST. 159 
 
 interest will be allowed even without an express stipulation. 
 " The principal money due and the interest thereon may be 
 considered as part of the penalty" (m). Because the object 
 of the penalty is to secure him to whom it is given against 
 all damage arising from default. Now one of the most 
 obvious sources of damage is the loss of interest on the sum 
 due (ii). In one case (o) where interest was allowed in an 
 action on a bond, it is not stated that there was any penalty 
 as there was in tlie instance last cited ; but as the case was 
 decided by Lord EUenborough, and clearly did not come 
 within any of the rules laid down by himself four years pre- 
 viously (j)), it may fairly be concluded that the boud was 
 drawn in the ordinary form, so as to account for the decision. 
 "Where the defendants bound themselves to pay 1,500/. in 
 goods, by three equal payments, at three, five, and seven 
 months ; " in failure of which we acknowledge and hereby 
 render ourselves liable to be sued and proceeded against for 
 the amount ; " it was held that the instrument did not carry 
 interest, on the ground that it had not the effect of a bond ; 
 as there was no penalty, and the parties were bound only in 
 the amount which was to be actually paid {q). And in Hogaii 
 V. Paije {)•), it was decided that a single bond did not carry 
 interest. 
 
 The principle of the above cases was affirmed and generalised 
 in a recent case (.s) where two railway companies entered into a 
 joint traffic agreement, by virtue of which the accounts of the 
 companies were to be exchanged and balanced every month, 
 75 per cent, of the amount due on either side being paid on or 
 before the 15th of the next month, and the balance in the next 
 month. Lindley, L.J., said, " Except as altered by the Act, 
 .3 & 4 Will. IV. c. 42, the old law as to interest remains. But, 
 notwithstanding this rule against interest, if a person agreed to 
 do something other than pay money, and he broke his agree- 
 
 (?«) Per Caylcy, J., Cameron v. Smith, 2 B. & A. 308. 
 ()i) Farquliar v. Morris, 7 T. E. 124. 
 (o) HelUer v. Franklin, 1 Stark. 291. 
 (p) Calton V. Bi-ac'ff, 15 East, 223. 
 (q) Foster v. Weston, 6 Bing. 709. 
 (r) 1 B. & P. 337. 
 
 (s) L. a. tt Z>. Rij. Co. V. 5. E. Ry. Co., [1892] 1 Ch. 120, pp. 142, 146; 
 61 L. J. Ch. 294.
 
 160 
 
 INTEREST. 
 
 Money i)ayal)le 
 oil a tixeJ dav. 
 
 x\ wards 
 
 Interest rc- 
 cnveiable as 
 damages. 
 
 nient, an action for damages would lie against him ; and, in 
 estimating those damages and as part of them, interest might 
 1)0 reckoned on money which would have become payable by 
 him with interest if he had not broken his agreement, and 
 thereby prevented the principal falling due. . . . Whether in- 
 terest would be given depended upon whether the money, if it 
 had become payable at law, would at law have borne interest." 
 Bowen, L.J., said, " If the action of the plaintiffs is to be 
 taken as an action for breach of an agreement, the fulfilment 
 of which would have resulted in the ascertainment of a sum 
 capable of carrying interest by the verdict of the jury, either 
 by reason of its being a debt payable at a certain time, or of 
 its becoming payable on demand, in such a case of special 
 damage the interest might be recoverable for breach of the 
 agreement, the fulfilment of which might have resulted in 
 what I have said." 
 
 Formei'ly it was thought, where a sum of money was agreed 
 to be paid on a particular day, that on default interest from 
 that day might be recovered without any express or implied 
 contract to that effect (/). But this doctrine has now been 
 overruled («). It has, however, been always held that where, 
 by an award, money is made payable on a certain day, interest 
 ought to be allowed from that day, if payment was demanded 
 at the place appointed (x). I cannot, on principle, explain 
 this exception. Many apparent exceptions to the rule, that 
 interest is only recoverable in the cases just mentioned, may 
 be explained by distinguishing between interest recovered as 
 part of the debt, and interest recovered as damages for its 
 detention. For instance, interest on a deposit may be re- 
 covered, if laid as special damage in an action for breach of 
 agreement to sell an estate (?/). So it may be allowed as 
 damages in an action on a mortgage deed, after the day of 
 
 (t) Bhnuy V. Hendricks, 2 W. Bl. 761 : 3 Wils. 205, S. C. : Shipley r. 
 Hammond, 5 Esp. Ill : Chalie v. Duke of York, 6 Esp. 45 : Be Haviliand 
 V. Boicerbank, 1 Camp. 50 : Mountford v. Willcs, 2 B. & P. 337. 
 
 (ii) Gordon v. Sivan, 12 East, 419 : Iligrjins v. Sargent, 2 B. & C. 34S : 
 Pa(jc V. JVncman, 9 B. & C. 378 : Fodcr v. Weston, 6 Bing. 709 : Cook v. 
 Fonier, L. R. 7 H. L. 27 ; 43 L. J. Ch. 855. 
 
 {x) Pinhorn v. Tuckington, 3 Camp. 468 : Churcher v. Stringer, 2 B. & 
 Ad. 777 : Johnson v. Durant, 4 C. & P. 327. 
 
 (V) De Eernoles v. Wood, 3 Camp. 258 : Farquhar v. Farley, 7 Taunt. 
 592.
 
 INTEREST. 161 
 
 default (z) ; or upon a contract to pay money upon a par- 
 ticular day (a) ; or upon a covenant to indemnify a surety {h). 
 AVhere a written security is given for the payment of money 
 on a particular day, with interest up to that day at a fixed rate, 
 a claim for subsequent interest would be a claim for damages 
 at the discretion of the tribunal before which the demand is 
 made, and not for interest due as a matter of law. The former 
 rate might, but need not be, adopted in assessing the damages (c). 
 Where a mortgage deed provided for interest at 10 per cent. 
 up to the time fixed for payment, but contained no covenant 
 for interest after that date, the Court held that subsequent 
 interest could only be awarded as damages, and refused to graut 
 more than 5 per cent. (d). And it is laid down as a general 
 rule, that although it be not due ex co?ifrach/, a party may be 
 entitled to damages in the form of interest where there has 
 been long delay under vexatious and oppressive circumstances, 
 in the payment of what is due under the contract (e). AVhere 
 a person under a contract of purchase enters into possession of 
 property which produces a profit, such as machinery, and then 
 declines to carry out his purchase, the vendor is entitled to 
 interest on the value of the property by way of damages (/). 
 
 Interest cannot l)e recovered as such in an action against the Cases in wliich 
 vendor of an estate, the sale of which has gone off, for recovery j.^^^^^fable"*'^ 
 of the deposit which has been lying idle {(/) ; but it may be 
 recovered as special damages for breach of the contract if bo 
 
 (2) Dickenson v. Harrison, 4 Price, 282 : Atkinson v. Jones, 2 A. & E. 
 439 : Price v. G. W. Ry. Co., 16 M. & W. 244. 
 
 (a) Wathins v. Morgan, 6 C. & P. 661. 
 
 (h) Petrc V. Buncombe, 20 L. J. Q. B. 242 ; 2 L. M. & P. 1 07, S. C. 
 
 U-) Cook V. Fowler, L. R. 7 H. L. 27—32 ; 43 L. J. Ch. 85.5. 
 
 ((/) Re Roberts, 14 Cli. D. 49 : Mellershr. Broun, 45 Cli. D. 225. 
 
 (e) Hi/house v. Daris, 1 M. & S. 169 : Ariwtt. v. Redfern, 3 Bingh. 353 ; 
 and see Caledonian Ry. Co. v. Carmichael, L. R. 2 H. L. Sc. 56 : Webster 
 V. Brit. Mat. Life Ass. Co., post, p. 167 : RisJdon v. GrisscU, L. R. 10 Eq. 
 393. So in Equity, an executor or trustee who unnecessarily retains money 
 which he ought to have invested or paid over, will be made to pay interest. 
 See per Lord Chelmsford, C, Blorpj v. Johnson, L. R. 2 Cb. at p. 228 ; 36 
 L. J. Ch. at p. 860. By the Attorneys' and Solicitors' Act. 1870, 33 & 34 
 Vict. c. 28, s. 17, taxing officers may allow interest on moneys of the client 
 improperly retained by the attorney or solicitor, and on disbursements made 
 by the latter for the client. 
 
 (/) Marsh V. Jones, 40 Ch. D. 563. 
 
 if/) Bradshaiv v. Bennett, 5 C. &; P. 48 : Maberley v. Robins, 5 Taunt. 
 625. 
 
 M.D. 
 
 M
 
 1G2 INTEREST. 
 
 laid (A). But the principal and auctioneer stand on a different 
 footing, and in an action against the latter to recover the 
 deposit paid to him, interest cannot be recovered, even as 
 damages, unless perhaps after demand and refusal on the 
 contract being rescinded (/). Not even when the auctioneer 
 has made interest upon the money while in his hands ; and 
 although he was requested by one of the parties before the 
 completion of the contract to invest it (Jc). Interest is not 
 due as such in an action for money secured on mortgage, after 
 day of default, without covenants to pay interest, but may be 
 recovered as damages (/). Nor in an action for money lent, 
 unless there has been an usage to that effect (m) ; or for money 
 had and received («), even though by the course of dealing 
 between the defendant and the person from whom the money 
 was received to the plaintiff's use, the sum would have borne 
 interest ; for " no right passed to the plaintiff but a right to 
 demand the sum actually in defendant's hands " (o). And it 
 makes no difference that the money has been obtained by 
 fraud (p). Nor in actions for money paid (q) ; or on an account 
 stated (r) ; or for goods sold, even though to be paid for on a 
 particular day (s), though it is otherwise where payment was 
 to be made by a bill (/). Nor in an action for work and 
 labour (u) ; nor on money lying with a banker (.?') ; nor upon 
 a policy of insurance (y). Nor are annuitants entitled to 
 
 (h) De Bernalcs v. Wood, 3 Camp. 258 : Farquhar v. Farley, 7 Taunt. 
 592. 
 
 (i) Lee v. Munn, S Taunt. 45. 
 
 [k) Harrington v. Hojgart, 1 B. & Ad. 577. 
 
 (1) Ante, p. 161. 
 
 \m) Calton v. Bragg, 15 East, 223 : Shaio v. Picton, 4 B. & C. 723. 
 [n) Walker v. Constable, 1 B. & P. 306. 
 (o) Fruhling v. ScJirceder, 2 B. N. C. 79. 
 {p) Crocl-ford v. Winter, 1 Camp. 124. 
 
 (2) Carr v. Edwards, 3 Stark. 132 : Hiclcs v. Marcco, 5 C. & P. 498. 
 (r) Nichol V. Thompson, 1 Camp. 52, n. : Chalie v. Duke of York, 6 Esp. 
 
 45 ; Blaney v. Hendricks, 2 W. Bl. 761, contra, overruled ^e?' Abbott, C. J., 
 2 B. & C. 349. 
 
 (s) Gordon v. Sican, 12 East, 419 : Mountford v. Willes, 2 B. & P. 337, 
 merely decides that if the jui-y allow interest, (which they clearly may do as 
 damages.) the court will not disturb their vcidict. See 2 Camp. 429. 
 
 (t) See ante, p. 158. 
 
 (u) Trelawney v. Thomas, 1 H. Bl. 303 : Milsovi v. Hayivard, 9 Price, 
 134. 
 
 (x) Edwards v. Vere, 5 B. & Ad. 282. 
 
 ((/) Kingston v. M'Intosh, 1 Camp. 518 : Bain v. Case, 3 C. & P. 496,
 
 INTEREST. 
 
 163 
 
 interest on the arrears of tlieir annuities (z). Interest is not Foreign judg 
 recoverable as such in an action upon a foreign judgment, ™^'^*^^- 
 where the subject of the claim is not one which would bear 
 interest in this country (a). But it may be left to the jury to 
 say whether the plaintiff has used proper means to find out the 
 defendant and enforce the judgment ; and if they find for him, 
 they may give such interest as they wish (b). 
 
 In cases of partnership, no interest is chargeable against a Partners, 
 partner who draws out more than his stipulated shares of the 
 profits, even though the deed expressly forbids such an over- 
 drawing, unless there is a special provision in the deed, or an 
 established usage that interest shall be charged (c). Xor of 
 course has one partner any claim against the other for interest 
 on his share of capital, unless there is an agreement to that 
 effect (d). "Where there is such an agreement, it comes to an 
 end upon a dissolution, and interest will cease to run from that 
 date, even though the trade may be continued with a view to 
 winding-up, and profits may be realised (e). Subject to agree- 
 ment a partner is entitled to interest at five per cent, in advances 
 made to the firm beyond his agreed capital (/). And where 
 the partnership deed stipulates that either partner may make 
 advances beyond his share of the capital, and that such ad- 
 vances shall be treated as loans to the partnership, and bear 
 interest, they will continue to do so even after a dissolution, 
 until repayment {//). But any practice by which such interes!) 
 was computed during the partnership with rests would termi- 
 nate at a dissolution (/?). 
 
 Interest does not run after a tender (/). And where a Tender; 
 
 (z) Earl of Mansfidd v. Ogle, 4 De G. & J. 41 : Booth v. CouUon, 30 
 L. J. Ch. 378 : Blogg v. Johnson, L. R. 2 Ch. 225 ; 36 L. J. Ch. 859. 
 
 (a) Doran v. O'lleilli/, 3 Price, 250 : Atkinson v. Lord Braybrooke, 4 
 Camp. 380. 
 
 {h) As damages it voald appear. Bann v. DalzeU, 3 C. & P. 376 ; 
 M'Clure v. Dunkin, 1 Ea.st, 436. 
 
 (c) PJwdes V. Rhodes, Johns. 653 ; 29 L. J. Ch. 418 : Meijnwtt v. Mci/- 
 mott, 31 Beav. 445 ; 32 L. J. Ch. 218. 
 
 (d) See the Partnership Act, 1890 ; 53 & 54 Vict. c. 39, s. 24, subs. (4). 
 
 (e) Watney v. Wells, L. 11. 2 Ch. 250 ; 36 L. J. Ch. 861 : Barfidd v. 
 Loughlorough, L. R. 8 Ch. 1 ; 42 L. J. Ch. 179. 
 
 (/) 53 & 54 Vict. c. 39, s. 24, subs. (3). 
 {g) Wood V. Scales, L. R. 1 Ch. 369, 378 
 Loughborough, L. R. 8 Ch. 1 ; 42 L. .T. Ch. 179. 
 (h) Barjield v. Lour/hborough. ub. sup. 
 (i) Bent Y. Dunn, 3 Camp. 296. 
 
 35 L. J. Ch. 547 : Barjield v. 
 
 M 'I
 
 IGi 
 
 INTEREST. 
 
 rayment into defendant, sued upon a debt whicli bears interest, wishes to 
 
 '''""*• pay money into court, he must pay the interest up to the time 
 
 of the payment into court. If he merely pay interest up to the 
 
 romnmuement of the action, the plaintiff' may proceed for the 
 
 difference (Jc). 
 
 Time lip to Interest must, in all other cases, be calculated up to the day 
 
 :^'''cii interest ^^^ ^,j^-g]^ judo-meut is prououuced in Court, the judgment being, 
 
 1.-, couip.ue.. . ^^^ ^^^^ absence of special leave, entered as of that date. It was 
 
 formerly calculated up to the time of signing judgment (/), and 
 
 judgment was considered to be signed for this purpose, when 
 
 the incipitur was entered in the Master's liook. The moment 
 
 that entry was made, the plaintiff was entitled to receive his 
 
 debt and damages, and an unascertained amount of costs {ni). 
 
 Interest recovered at law is always 5/. per cent. («). AVhere 
 a contract has been made abroad, it will bear interest at the 
 foreign rate till judgment signed, but only the legal interest of 
 5/. per cent, (now, by statute 1 & 2 Vict. c. 110, s. 17, 4/. per 
 cent.) from the time of signing judgment (o). 
 
 II. As to the cases in which interest is given by statute, 
 3 & 4 W. lY. c. 42, s. 28, enacts Qj) " that upon all debts or 
 sums certain, payable at a 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 the 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 payable otherwise, then from the time when ilemand 
 flf^mijment shall have been made in writing, so as such demand 
 shall give notice to the debtor that interest will be claimed 
 
 Rate of 
 interest. 
 
 Interest by 
 JStatute. 
 
 \A) Kkld V. Walker, 2 B. & Ad. 705. 
 
 (/) RoUmon v. Bland, 2 Burr. 1081. 0. 41, R. 3. See_pos<, p. 168. 
 
 {m) Fishery. Dudding, ii ;^co. N. II. 516. 
 
 (7i) Sugd. y. & P. 816 ; Upton v. Lord Ferrers, 5 Yes. 803 : Re Roberts, 
 14 Ch. D. 49. 
 
 (o) Bodily v. Bellamy, 2 Burr. 1096. As to interest on foreign bills, see 
 more fully post, c. 8. Interest which is payable by a special contract upon 
 a bill of exchange, may, after judgment for the principal sum, be recovered 
 in a subsequent action, for a period np to the date of the judgment in 
 tue first action ; but not for a subsequent period, because the right to 
 interest under the agreement ceases at the date of the judgment : Florence v. 
 Urayson, 1 C. B. N. S. 584 : S. C. nom. F/orenrcY. Jennings, 26 L. J. C. P. 
 274 : £x parte Fewings, 25 Ch. D. 338. 
 
 (p) This statute is said by Thesiger, L. J., to be merely declaratory of the 
 common law; 15 Ch. D. p. 178.
 
 INTEREST. 165 
 
 from the date of such demand, until the term of payment. 
 Provided that interest shall be payable in all cases in which 
 it is now payable by law." 
 
 S. 29. "The jury on the trial of any issue, or on any inqui- 
 sition of damages, may, if they sliall think fit, give damages in 
 the nature of interest, over and above the value of the goods at 
 the time of the conversion or seizure, in all actions of trover 
 or trespass de bonis asportatis, and over and above all money 
 recoverable in all actions on policies of insurance made after 
 the passing of this Act." 
 
 Under s. 28, a sum will be considered certain, when it can Jieanins 
 
 be made so by calculation (q). Therefore where a party had °f ^'°^^l „ 
 
 • 1 If • 1 •! C6rta.iii. 
 
 paid a number of excessive charges to a railway company under 
 
 protest, and sued for the balance, it was held that he might 
 recover interest upon it, having made a proper written de- 
 mand (r). With reference to time, a debt can never be treated 
 as payable at a certain time, where the day of payment depends 
 upon a future contingent event, which may never arrive, or 
 upon a mutual accounting of the parties, or upon a settlement of 
 matters that are or may be in dispute. A contract between a 
 railway company and a contractor provided that payments 
 should be made monthly, as the works proceeded, on the certi- 
 ficate of the company's engineer. Nothing was said as to 
 interest. The contractor made a demand in ^^iting for a sum, 
 as being the balance due to him, and claimed interest. His 
 accounts were disputed, and ultimately he was found to be 
 entitled to less than half of what he had claimed. It Avas held 
 that the claim did not come within the statute either as to 
 amount or as to time. Not as to amount, because it could not 
 be found m the contract itself what sum was payable under it. 
 Not as to time, because no time could be alleged at which the 
 amount due to the contractor was certain, before the certificate 
 was given (s). A similar decision Avas given in the follow- 
 ing case : A party agreed to pay money by a letter in which 
 
 (q) Harper v. Williams, 4 Q. B. 219, 224. 
 
 (?•) Edtcards v. G. IF. By. Co., 11 C. B. 588 ; 21 L. J. C. P. 72. 
 
 (s) Hillv. South Staffordshire Ry. Co., L. R. 18 Eq. 154 ; 43 L. J. Ch. 
 556 ; L. V. <b I). Ry. Co. v. S. E. Ry. Co. [1892], 1 Cb. 12U ; 61 L. J. 
 Ch. 294 ; overruling Dimcombe v. Brighton <L' Norfolk Hotel Co., L. K. 10 
 Q. B. 371 ; 44 L. J. Q. B. 216. See judgment of Sir John Coleridge, 7 Moo. 
 I. A. p. 278.
 
 1G6 
 
 INTEREST. 
 
 "What is a 
 sufficient 
 demand. 
 
 Notice of 
 action. 
 
 "Written in- 
 strument by 
 
 the following words occurred : " I shall pay all the principal, 
 interest, and costs through a friend of mine in L., to whom a 
 transfer of all the securities will have to be made ; the cash 
 will be ready, if the securities will, on the IGth inst." : the 
 securities were in the plaintiff's hands, and were not ready 
 for transfer till some time after the 16th, and the transfer 
 never was effected : it was held that this did not amount to a 
 promise to pay on a day certain. It was also decided in the 
 same case that an acceptance of the above offer, and a subse- 
 quent letter concluding, " Will you be good enough to inform 
 us what you now propose to do ; you are aware that we hold 
 your undertaking," did not amount to a demand in writing 
 under the above section {/). A demand, however, will be a 
 sufficient comphance with the statute, although it does not 
 follow its very words, if it gives the defendant substantial 
 notice that if he keeps the plaintiff's money longer in his 
 hands, he will be held liable for interest upon it, from the time 
 he is served with the demand till the time of payment of the 
 principal. Accordingly, where the notice stated that the 
 plaintiff would expect interest from a period considerably 
 anterior to the date of his letter, it was held sufficient (u). 
 A claim on the writ for interest upon the amount claimed from 
 the date of the writ till payment is not a good demand under 
 the statute (x). 
 
 Where the defendant is entitled to notice of action under 
 any statute, it seems that the notice must contain a demand of 
 interest. But this defence can only be set up where the want 
 of notice has been pleaded specially. And in such a case, if 
 the action and all matters in difference have been referred to 
 an arbitrator, he may give interest, whether it was demanded in. 
 the notice of action or not {//'). 
 
 Where the statute speaks of money payable by virtue of a 
 written instrument, it means a written instrument which sets 
 
 [t) Harper v. WilUams, 4 Q. B. 219. 
 
 (m) Mowatt V. Londeshorough, 3 E. & B. 307 ; aiBrmed in Ex. Ch. 4. E. & 
 B. 1 ; 23 L. J. Q. B. 38. See as to demand of interest on notice of a call to 
 a contributory, Ex parte Lintott, L. R. 4 Eq. 184 ; Barrow^ s case, L. E. 3 
 Ch. 784. As to Jiabiliiy for interest on calls after forfeiture of the shares, 
 see Stockens case, L. K. 3 Ch. 412 ; 37 L. J. Ch. 5, 230. 
 
 (x) llhymney liy. Co. v. llliymncy Iro7i Co., 25 Q. B. D. 146 ; 59 L. J. Q. B. 
 414, 
 
 {y) Edwards v. G. W. liy. Co., 11 C. B. 588 ; 21 L. J. C. P. 72.
 
 INTEREST. 1G7 
 
 forth an obligation to pay at a certain time. Therefore a mere virtue of 
 letter of application for a loan until a clay named, is not suffi- ^.^'^^'^ a debt 
 cient to satisfy the statute. Because the obligation to pay, if 
 it ever arose at all, would arise not from the letter, but from it 
 coupled Avith what was done upon it (z). 
 
 In the absence of contract, interest cannot be recovered either "Wrongful 
 at common law or under the statute, unless there has been a '^jej^ention of 
 wrongful detention of money which ought to have been paid. 
 Hence when an insurance company refused to pay the assignee 
 of a life policy upon mere proof of the death of the insured, 
 without the consent of the legal personal representative of the 
 deceased, and no such representative had been constituted, it 
 was held that the non-payment upon this ground was not a de- 
 fault on the part of the company, and that interest upon the 
 policy could not be awarded in respect of the period which had 
 elapsed since the death (a). 
 
 Wherever interest is solely given by this statute, in a case Discretion of 
 which comes within its provisions, the jury are left entirely to t^^^ J'^"'^- 
 their own discretion whether they will grant it or not, and 
 where they think fit to withhold it, the Court will not interfere. 
 Therefore, where the agreement was to pay a debt by half- 
 yearly instalments, on specified days, " with interest for the 
 same sums at the rate of 5/. per cent, per annum, to be 
 reckoned from 1st October then next, until the day of pay- 
 ment thereof, such interest to be paid by equal half-yearly 
 payments ; " it was decided that interest upon the arrears of 
 interest could not be allowed at common law ; that it might 
 be given under the stat. 3 & 4 W. lY. c. 42, s. 28, but that as 
 the jury had refused to allow it, the propriety of their decision 
 could not be questioned (h). Xor can their decision be ques- 
 tioned, though they give interest at 5/. per cent, when this is 
 higher than the current rate of interest at the time (c). 
 
 Interest can only be given under this statute by the jury, jury only can 
 Accordingly, where a plaintiii; after making a demand for the 8^^'^ interest. 
 express purpose of obtaining interest, consented to a compromise 
 Avhich deprived him of his right to go before a jury, without 
 
 (z) Taylor v. Holt, 3 H. & C. 452 ; 34 L. J. Ex. 1 : Merchant Shipping 
 Co. V. Armitage, L. R. 9 Q. B. 09, 114 ; 43 L. J. Q. B. 24. 
 
 {a) Webster v. British Lmpire Co., 15 Ch. D. 169 ; 49 L. J. Cli. 769. 
 {b) Attwoudy. Taylor, 1 M. & G. 279. See per Hall, V.-C, L. E. 18 Eq. 170. 
 \c) Mowatt V. Lord Londesborouyh, 4 E. <Si B. 1.
 
 168 
 
 INTEREST. 
 
 Interest upon 
 judgments. 
 
 In cases of 
 appeal. 
 
 Eqiiitablo 
 claims. 
 
 Interest on 
 moneys re- 
 funded where 
 decree re- 
 versed. 
 
 stipulating for interest, he was held to have lost his right to 
 it {d). 
 
 III. As to interest upon judgments, it was enacted by 1 & 2 
 Vict. c. 110, s. 17, that every judgment debt should carry 
 interest at the rate of U. per cent, from the time of entering 
 up the judgment (<»). The act equally applied to all such 
 judgments, whether against the defendant, for the subject- 
 matter of the suit, or against the plaintiff for costs (/). By 
 the new rules interest at 4/. per cent, both on the amount of 
 the judgment and on the costs may be recovered from the time 
 when the judgment was entered or made {g). 
 
 On an appeal from the High Court, interest for such time as 
 execution has been delayed before appeal will be allowed, unless 
 the Court or a judge otherwise orders {h). 
 
 In case of equitable claims, not expressly barred by the law 
 of limitation, Courts of equity will, in general, limit the arrears 
 of interest awarded to the period fixed by statute, unless there 
 are special circumstances which entitle the claimant to special 
 consideration (/). 
 
 IV. Where a person has been turned out of possession of 
 property, or compelled to pay a sum of money, by decree of 
 Court, the reversal of that decree entitles him to be replaced 
 in the same position as if the proper decree had been passed at 
 first. Therefore he has a right, not only to have all money 
 paid by him under the erroneous decree refunded, but also to 
 have interest on such refund. But it is not the usage to allow 
 interest on costs paid, and afterwards refunded, unless there 
 has been an order of the Court, or an agreement of the parties, 
 to that effect {k). 
 
 (d) Berrlrirjton v. Phillips, 1 AI. & W. 48. 
 
 (e) So by Order 42, R. 16. 
 
 (/) Pitcher V. Iloberts, 2 Dowl. N. S. 394 : Ncioton v. Coni/vgham, 17 L. 
 J. C. P. 288. 
 
 iff) 0. 42, R. 16, and Forms, Appendix H. See, as to interest on debts proved 
 in Chambers in the Chancery Division, and on Legacies, 0. 55, RR. 62, 6 4. 
 
 {h) 0. 58, R. 19 ; and see Lane, d: Yorlcshire Rij. Co. v. iridloir, L. R. 7 
 n. L. 517 ; 45 L. J. Ex. 625. 
 
 (t) Thomson v. Eastwood, 2 App. Cas. 215. 
 
 {k) Rajah Lelanund Sinyh v. Maharajah Luchmissur Siayh, 13 Moo. Ind. 
 Ap. 490 : Rodger v. Comptoir U Escompte dc Paris, L. R. 3 P. C. 465 ; 
 40 L. J. P. C. 1 : Forester v. Secretary of State for India, L. R. 4 Ind. Ap. 
 137 : Merchant Banling Co. v. 3Iand, L. R. 18 Eq. 659. The rate of 
 interest allowed in this last case was 4 per cent. : A'arhcrg's case [1892], 
 3 Ch. 17 ; 61 L. J. Ch. 741.
 
 CHAPTER V. 
 
 CONTRACTS OF SALE. 
 
 /. Contracts for sale of chattel. 
 
 1. Actions for price off/oods received. 
 
 2. Actions for iiot accepting goods. 
 Actions for not accepting stock or 
 
 shares. 
 2. Actions for not delivering goods. 
 
 Actions for not rejilacing stock. 
 4. Actions on warranti/. 
 
 II. Contracts for sale of land. 
 
 1. Actions for refusal to convey. 
 
 2. Actions for refusal to accept laml. 
 
 3. Actions on covenant for title. 
 Actions on covenant for quiet en- 
 joyment. 
 
 Actions on covenant for further 
 assurance. 
 
 Actions on covenant against in- 
 cumbrances. 
 
 Actions on covenant to reneiv. 
 
 UxDER the general head of contracts of sale may be con- 
 sidered several forms of action, the damages in which are 
 governed by analogous principles. They are not only the most 
 ordinary, but the rules connected \^ith them are the simplest, 
 and therefore the most proper to commence with. 
 
 Contracts of sale may give rise to actions by the vendor 
 against the vendee, or vice versa : the vendor may sue the 
 vendee for default in payment, or for a refusal to accept ; the 
 vendee may sue the vendor for a refusal to deliver, or for a 
 breach of warranty as to the quality of the article. Differences 
 will also arise according to the subject-matter of the contract, 
 which may relate to chattels, such as goods, shares, or stock, 
 or to land. Each of these wih require a separate examination. 
 
 I. Sales of goods, 
 
 1. Where the vendee has actually received the goods, of 
 course the action can only be for the price. This case pre- 
 sents no difficulty : the price is generally ascertained by the 
 contract, or is settled by the jury at the fair value of the 
 article. Claims for interest will be regulated by the principles 
 laid down in the preceding chapter («). On the other hand, 
 
 Damages where 
 goods have 
 been received. 
 
 (a) Ante, pp. 156, et seq.
 
 170 
 
 REFUSAL TO ACCEPT GOODS. 
 
 Or jiroperty 
 las passed to 
 defendant. 
 
 Damages for 
 refusing to 
 accept. 
 
 Time fmm 
 wliicli dittcr- 
 ence of value 
 to be calcu- 
 lated. 
 
 the defendant may allege that the article is inferior to that for 
 which he had bargained, and may claim a reduction of damages 
 on that account. The principles upon this point have also been 
 discussed at sufficient length in a previous part of this work (I/). 
 
 Even where no delivery to the defendant has been, or can 
 be made, as, for instance, where the sale was of a specific 
 quantity of butter, which was lost by shipwreck, the plaintiff 
 may recover the full price in an action for goods bargained and 
 sold, if the property has passed to the defendant (c). Where 
 goods are sold, to be paid for by a bill, which is not given, 
 assumpsit for goods sold and deHvered cannot be maintained 
 before the time at which the bill, if given, would have fallen 
 due. But the plaintiff may sue at once for the breach of the 
 special agreement {d) ; and will recover the whole amount of the 
 bill {('). It has been suggested in America, that there ought 
 to be a rebate of interest in proportion to the stipulated period 
 of credit (/). 
 
 2. The defendant may refuse to accept the goods. In this 
 case, if the property has passed to him, the vendor may at 
 his option consider the contract of sale as still unbroken, and 
 recover their entire price in an action for goods bargained and 
 sold, even though they have not been delivered (//). He may 
 on the other hand, after the time for acceptance has expired, 
 or any other essential condition has been broken, sue for 
 breach of the contract, even after he has resold the goods (A). 
 In the latter case, the measure of damages is the difference 
 between the contract price and the market price at the time 
 when the contract ought to have been completed («), for the 
 seller may take his goods into the market and obtain the 
 current price for them (Jc). For instance, a contract was 
 
 (b) Ante, p. 114. 
 
 (c) Alexander v. Gardner, 1 Bingli. N. C. 671. 
 {d) Mussen v. Price, 4 East, 147. 
 
 (e) Hutchinson v. Rcid, 3 Camp. 329. 
 
 (/) Banna v. Mills, 21 Wend. 90. 
 
 {g) Grahams. Jackson, 14 East, 49S. 
 
 (/i) Maclean v. Dunn, 4 Bingh. 722. It was decided by Lord Ellcnborough 
 that an action for goods bargained and sold would be maintainable, even after 
 a resale by the ijlaintitf : 3lcrtens v. Adcock, 4 Esp. 251, but tbis case, after 
 being several times doubted, has been overruled : Lamond v. iJavaU, 9 Q. B. 
 1030. 
 
 (i) Boorniun v. Nash, 9 B. & C. 14.^. 
 
 (^•) Per Cur., Barrow v. Arnaud, 8 Q. B, at p. 610, in Ex. Ch.
 
 RErUSAL TO ACCEPT GOODS. 171 
 
 made early in January, to supply a quantity of corn " to be Damages cal- 
 delivered at Birmingham as soon as vessels could be ob- ^^^^^ ^^ breach 
 tained," and on tbe 2Gtli January defendant gave notice to the of coatract. 
 plaintiff that he would not accept it if delivered ; it was at 
 that time on its way to B., and on its arrival there the de- 
 fendant was required to accept it, and refused, upon which the 
 action was brought ; the question was, whether the damages 
 should be calculated according to the market price on the 
 2Gth January, when the notice was given, or the price on the 
 last day when the contract could have been completed, viz., 
 when the wheat was tendered for acceptance. The latter was 
 held to be the proper rule. Lord Abinger, C. B., said : " The 
 proper period at which to calculate the damages was when the 
 defendant ought to have received the goods. The original 
 contract was in no way modified by the notice, and the plaintiffs 
 were not bound then to sell in order to reduce the damages." 
 And Parke, B., said : " The notice amounts to nothing until the 
 time when the buyer ought to receive the goods, unless the 
 seller acts on it in the meantime, and rescinds the contract " (/), 
 In the same case Parke, B., stated in his opinion that no action 
 would have lain for breach of contract upon the mere receipt of 
 the notice, but that the plaintili' was bound to wait until the 
 time arrived for the delivery of the wheat, to see whether the 
 defendant would then receive it. This position, however, has Repudiation 
 been denied by the Queen's Bench, and they have laid it down, ^i'"acL 
 that where a refusal to perform a contract can be proved by 
 evidence, which shows that the party has utterly renounced the 
 contract, or has put it out of his own power to perform it, 
 the injured party may at his option sue at once, or wait till the 
 time when the act was to be done (m). A similar decision 
 
 {I) Philpotts V. Evans, 5 M. & W. 475. 
 
 («0 Hoehster v. l)c Latour, 2 E. & U. 678 ; 22 L. J. Q. B. 455 : Frost v. 
 Knight, L. R. 7 Ex. Ill ; 41 L. J. Ex. 78 in Ex. Cb. : Cherry v. Thompson, 
 L. R. 7 Q. B. 573 ; 41 L, J. Q. B. 243. The refusal to perforin the contract 
 must be distinct and unqualitied, and must be acted upon as a breach by the 
 person entitled to insist upon performance ; 2 Smith's L. C. 3G, !)th ed. : 
 Jleid V. Iloskins, 4 E. & B. 979 ; 25 L. J. Q. B. 49 ; 26 L. J. Q. B. 3 : 
 Aver>/v. Bowdcn, 5 E. & B. 714 ; 6 E. & B. 963; 25 L. J. Q. B. 49 ; 26 
 L. J. Q. B. 3 : Danube, <tc., Ry. Co. v. Xenos, 11 C. B. N. S. 152 ; 13 C. 
 B. N. S. 825 ; 31 L. J. C. P. 84, 2S4 : Bartholomew v. Markwiclc, 15 C. B. 
 N. S. 711 ; 33 L. J. C. P. 145 : Inchbald v. Western NeUgherry Coffee Co., 
 17 G. B. N. S. 733 ; 34 L. J. C. P. 15 : Masterton v. Mayor of Brooklyn, 
 7 Hill, 62 (Am.): Mersey Steel and Iron Co. v. Nay lor, 9 App. Ca. 434, 
 p. 442 ; 53 L. J. Q. B. 497.
 
 172 EEFUSAL TO ACCEPT GOODS. 
 
 was given in a previous case, the facts of which were as follows : 
 The plaintiffs entered into a contract to supply a railway com- 
 pany with 8900 tons of cast-iron chairs, to be supplied from 
 time to time, and paid for on delivery. They received and 
 paid for a certain portion. Others were received at periods 
 later than those specified at the request of the company's agent, 
 and finally the plaintiffs were directed not to supply any more, 
 as the defendants had no occasion for them, and would not 
 accept or pay for them. A large quantity of the chairs were in 
 consequence never manufactured or tendered ; the declaration 
 stated -wiUingness to perform the contract, but that the de- 
 fendants refused to accept the residue of the chairs, and dis- 
 charged and prevented the plaintiffs from supplying them. It 
 appeared that the plaintiffs had, for the purpose of fulfilling 
 their contract, entered into arrangements Avith iron founders 
 for the supply of iron, and enlarged their own foundry. They 
 had also made a sub-contract for the supply of a certain number 
 of chairs, which they had to pay £.")00 to get rid of. The 
 judge told the jury, the plaintiffs should be put into the same 
 position as they would have been if they had been permitted 
 to complete the contract. The jury gave 1800/. damages. It 
 was held, that where in the case of an executory contract tlie 
 purchaser gives notice not to manufacture any more of the 
 goods, as he will not accept or pay for them, the vendor, having 
 been desirous and able to fulfil the contract, may sue at once 
 without manufacturing or tendering the rest. Also that the 
 damages were not excessive, as the jury were justified in taking 
 into their calculation all the chairs which remained to be 
 delivered, and which the defendants refused to accept (n). Of 
 course where there is no difference between the contract and 
 market price, or where the difference is in favour of the plaiu- 
 tilf, damages can only be nominal (o). 
 Contract Even when the plaintiff" has exercised his option of treating 
 
 rescinded. the Contract as rescinded before the time for its completion has 
 
 elapsed, and has commenced his action before that time, the 
 damages will still be calculated with reference to the date at 
 
 (n) Cort V. Ambcr[/ate Ry. Co., 17 Q. B. 127 ; 20 L. J. Q. B. 460. 
 
 (o) Valpy V. Oakek'y, 16 Q. B. 941 ; 20 L. J. Q. B. 3S0 : Griffiths v. 
 Perry, 1 E. & E. 680 ; 28 L. J. Q. B. 204. Ard see ptr Martin, B., Frehn 
 V. Iloyal Bank of Livtrpool, L. E. 5. Ex. at p. 99 ; 39 L. J. Ex. at p. 46.
 
 REFUSAL TO ACCEPT GOODS. 173 
 
 which it should have been carried out. In other words, the Calculation 
 contract will be treated as rescinded for the purpose of suing wherrcoTitract 
 upon it, and as existing for the purpose of calculating the rescinded 
 damages. The law was laid down as follows by CockburnicJ., Jrerfommnce!"'" 
 in Frost v. Knight (p) : — " The promisee, if he pleases, may treat 
 the notice of intention as inoperative, and await the time when 
 the contract is to be executed, and then hold the other party 
 responsible for all the consequences of non-performance ; but 
 in that case he keeps the contract alive for the benefit of the 
 other party as well as his own : he remains subject to all his own 
 obligations and liabilities under it, and enables the other party 
 not only to complete the contract, if so advised, notwithstanding 
 his previous repudiation of it, but also to take advantage of any 
 supervening circumstance which would justify him in declining 
 to complete it. On the other hand, the promisee may, if he 
 thinks proper, treat the repudiation of the other party as a 
 wrongful putting an end to the contract, and may at once 
 bring his action as on a breach of it ; and in such action he 
 will be entitled to such damages as would have arisen from the 
 non-performance of the contract at the appointed time, subject, 
 however, to abatement in respect of any circumstances which 
 may have afforded him the means of mitigating his loss." "It 
 is obvious that such a course must lead to the convenience of 
 both parties ; and though we should be unwilling to found our 
 opinion on grounds of convenience alone, yet the latter tend 
 strongly to support the view that such an action ought to be 
 admitted and upheld. By acting on such a notice of the inten- 
 tion of the promisor, and, taking timely measures, the promisee 
 may in many cases avert, or at all events materially lessen, the 
 injurious eJlects which would otherwise flow from the non- 
 fulfilment ; and, in assessing the damages for breach of per- 
 formance, a jury will of course take into account whatever the 
 plaintiff has done, or has had the means of doing, and, as a 
 prudent man, ought in reason to have done, whereby his loss 
 has been, or would have been, diminished." 
 
 "Where the trial takes place after the contract has thus been 
 rescinded, but before the time for performance has arrived, 
 
 ip) L. R. 7 Ex. pp. 112, 114 ; 41 L. J. Ex. pp. 79, 80 : followed Hoper 
 V. Johnson, L. R. 8 U. P. 167, at p. 177 ; 42 L. J. C. P. 65 at pp. 68, 69.
 
 174 
 
 REFUSAL TO ACCEPT GOODS. 
 
 Obligation of 
 I)laintitf to 
 talve steps to 
 reduce his 
 own loss. 
 
 there may be a good deal of difficulty iu exercising that pro- 
 phetic judgment which will enable the proper measurement of 
 damages to be assessed. This difficulty, however, is not greater 
 than that of estimating the value of a debt payable on a con- 
 tingency under the bankrupt law, and the Courts have always 
 held that the difficulty of estimating damages is no reason for 
 refusing to fix them. A greater doubt may arise where the 
 jury are called on to reduce the damages by reference to what 
 the plaintiff might, or ouglit to have done, to diminish his own 
 loss. Where he has actually made a new arrangement which 
 defines what he has lost, that measure will of course be adopted 
 where he has acted in a reasonable manner. A servant who 
 accepts another situation, a merchant who purchases other 
 goods, a shipowner who takes otlie]- freight, after breach, but 
 before the time for performance, thereby diminishes the loss 
 which he would have incurred by simply doing nothing. He 
 at all events cannot claim more than, the difference between 
 the two contracts, and the defendant is not likely to offer less. 
 But is the plaintiff bound, as a matter of law, to do anything ? 
 In an action for breach of contract to supply cargo, Martin, B., 
 said, " It would be doubtful whether a party who breaks a con- 
 tract has a right to say to a party with whom he breaks it, ' I 
 Avill not pay you the damages arising from my breach of con- 
 tract, because you ought to have done something else for the 
 purpose of relieving me of it,' I am not satisfied that the person 
 who breaks a contract has a right to insist on that at all. But 
 if the ship had earned anything, the defendant would be entitled 
 to a deduction in respect of that. I am not prepared to say 
 that the person with whom the contract is broken is bound to 
 go and look for emi)loyment for his ship, when the freight has 
 Ijeen lost by reason of that breach of contract. It seems to 
 me that matter ought to be dismissed entirely from considera- 
 tion" {q}. In Brown v. Jli/lJer, Avhich was decided very shortly 
 after Frost v. Knif/hf, it was suggested that a plaintitf who 
 treated a contract for the supply of goods as broken, was bound 
 to go at once into the market and make a new forward contract, 
 and, therefore, that his damages should be assessed according 
 
 (y) Smith V. 3faju;re, 27 L. J. Ex. 465 at p. 472 ; 3 H. & N. 554 at p. 
 567; contra, per Parke, B., Harries v. Edmunds, 1 C. & K. 686.
 
 REFUSAL TO ACCEPT GOODS. 17^ 
 
 to the prices ruling at the day of breach. But the Court 
 denied that the plaintiff was under any such obligation. 
 Kelly, C.B., pointed out that the defendant might fairly say 
 that the plaintiff had no right to enter into a speculative con- 
 tract, and might insist that he was not called upon to pay a 
 greater difference than would have existed had the plaintiff 
 held his hand. Or, again, the plaintiff might lose by the insol- 
 vency of his new contractor, for which he would have no remedy 
 against the defendant (r). The same view was taken in the 
 later case of Rojier v. Johnson, though the judges seem to have 
 thought that perhaps it might have been open to the defendant 
 to give afRrmative evidence, which he had not done, that the 
 plaintiff ought to have gone, or could have gone, into the 
 market, so as to obtain a better contract than was procurable 
 at the time originally fixed for the performance (s). In a case Unreasonable 
 of breach of contract to supply cargo, it appeared that the conduct of 
 freighters offered the captain his choice of three other ports, breach, 
 they guaranteeing him a good cargo, and all extra charges. 
 The captain refused to go anywhere else, but waited at the 
 contract port till the proper time had elapsed, and then sued 
 for full damages, which amounted to 2,750?. The judge 
 told the jury that the captain was bound to do what was 
 reasonable under the circumstances, and that they were at 
 liberty to reduce the damages if they thought that he had 
 acted unreasonably. They gave a verdict for 500Z., and the 
 Court sustained it, being of opinion that the direction was 
 right (/). This, no doubt, was the sort of case in which the 
 plaintiff' ought to have done something for the benefit of both 
 parties. 
 
 In the absence of any express stipulation, it is the duty of Duty of buver 
 the buyer to caiTy away the goods bought within a reasonable away!^^ """^ ^ 
 time, and if he neglects to do so, the seller may charge him 
 warehouse room, or bring an action for not removing them 
 should he be prejudiced by the delay. But he is not entitled 
 to sell them {ii). 
 
 Exactly the same rule prevails where the contract is for Damages for 
 
 (r) L. R. 7 Ex. 319 at p. 322 ; 41 L. J. Ex. 214 at p. 216. 
 {s) L. R. 8 C. P. 167 ; 42 L. J. C. P. 65. 
 {t) Wilson V. Hicks, 26 L. J. Ex. 242. 
 (w) Greaves v. Ashlin, 3 Camp. 426.
 
 176 
 
 REFUSAL TO ACCEPT STOCK OR SHARES. 
 
 refusal to 
 accept stock 
 or shares. 
 
 Time of bi-each 
 ;x question fur 
 the jury. 
 
 Contracts for 
 .shares not in 
 existence, 
 
 ■who to he 
 construed. 
 
 the purchase of stock or shares (x). In one case (//;, it seems 
 to have been thought, that in an action for not accepting shares 
 the diflerence between the contract price, and that on the day 
 when they were resold by the plaintiff, if at a reasonable time 
 after the repudiation of the contract, and not that on the day 
 of the breach, was to be the measure of damages. But it has 
 been decided by a later case {z), that as there is no obligation 
 on the part of the vendor to sell at all, so if he refrain from 
 selling at the time of the breach, he takes upon himself all 
 risk arising from further depreciation. When there have been 
 several refusals to accept, and negotiations on the subject are 
 still kept up, it will be for the jury to decide on what day the 
 contract was finally repudiated («). 
 
 Where the contract is for the delivery of scrip shares which 
 are not in existence and known not to be so, this limits the 
 time for performing the contract to the first day on which the 
 thing contracted for is in esso. Till that day arrives neither 
 party can rescind it without the assent of the other. There- 
 fore if the vendee repudiate the contract before the issuing of 
 the scrip, &c., the vendor may still tender it on the first day it 
 is issued, and damages will be computed from that time and 
 not from the date of the first refusal to accept {!)). But a con- 
 tract or order for shares must be understood to be a contract for 
 whatever is understood by that word, in reference to the par- 
 ticular thing bargained for {c). Therefore where the defendant 
 contracted to sell the plaintiff shares in a projected railwny, 
 there being at the time neither scrip nor shares in existence, 
 but he being possessed of a letter of allotment entitling him 
 to be a shareholder ; on the 12th August he refused to per- 
 
 {x) See as to the vendor's right to an indemnity, if by the buyer's default 
 his name remains on the register of shareholders, and he is obliged to pay 
 subsequent calls, Waller v. Bartlctt, 18 C. E. 845 ; 25 L. J. C. P. 2(13 : 
 Grisscll V. Bristowe, L. R. 3 C. P. 112 ; 37 L. J. C. P. 89 ; L. K. 4 C. P. 3(5 ; 
 38 L. J. C. P. 10 : Coles v. Bristou-e, L. II. 4 Ch. 3 ; 38 L. J. Ch. 81 : 
 Mdxted V. Paine, L. K. 4 Ex. 203 ; 38 L. .J. Ex. 129 : athrmed, L. K. 6 Ex. 
 132 ; 40 L. J. Ex. 57 : JJuvis v. Haycock, L. R. 4 Ex. 373 ; 38 L. J. Ex. 
 155. 
 
 (?/) Steuwt V. Cauti/, 3 M. & W. 160. 
 
 (z) Pott V. Flat/icr, 5 Rail. Ca. 85 ; 16 L. J. Q. B. 366, S. C. 
 
 (a) Barned v. JIamilton, 2 Rail. Ca. 624 : (hjle v. Earl Vane, -post, p. 
 180. 
 
 {b) Pott V. Blather, ithi sup. 
 
 \e) Mitchell v. Neuhall, 15 M. & ^Y. 308 : Lamcrt v. Heath, ih. 486.
 
 REFUSAL TO DELIVER GOODS. 177 
 
 form his contract, and in October the scrip was issued ; it 
 was held that as he might have performed his contract by 
 handing over the letter of allotment, the contract was broken ' 
 in August, and that the damages must be calculated from that 
 day, and not from the time in October when the scrip was 
 issued {(l). 
 
 Of course the purchaser may bind himself absolutely to pay Absolute 
 for the chattel contracted for, whether he accepts it or not. undertaking 
 Defendants agreed to buy iron from the plaintiffs, promising °^'^^' 
 to pay for it on the 30th of April, if the delivery was not 
 required before that day. In an action for breach of this 
 contract, it was held that the jury should give the full price of 
 the iron, though no specific iron had been appropriated by the 
 plaintiffs (r). 
 
 3. Where the action is by the vendee against the vendor Damages for 
 for not delivering goods, and no payment has been made, the r^^^sai to 
 
 , ^ , . , . , , ^. deliver goods. 
 
 rule as to damages is the same as in the case last discussed. 
 Their measure is the difference between the contract price 
 and that which goods of a similar description and quality bore 
 at the time when they ought to have been delivered. Because 
 the plaintiff has the money in his possession, and 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 resale at a higher price, made in the interval 
 between the first contract and the time for delivering (g). 
 The same doctrine prevails in cases where the contract is to 
 1)6 performed on a certain dav, and before that time the 
 vendor declines to carry it out. The defendant had agreed to 
 supply the plaintiff with a certain quantity of tallow, to be 
 delivered all in December, at Gbs. per cwt. On October 1st, 
 
 (d) Temjyest v. Kilner, 3 C. B. 249. 
 
 (e) Dunlop v. Grote, 2 C. & K. 153. 
 
 (/) Gaimford v. Carroll, 2 B. & C. 624 ; ;jer Cur. Barrow v. Arnaud, 
 
 8 Q. B. 609 : Peterson v. Arjre, 13 C. B. 353: Dunkirk Collier i/ v. Lever, 
 
 9 Ch. D. 20. In one case an attempt \n as made to obtain larger damages than 
 according to this rule, liy showing that part of the contract price was given in 
 consideration of speedy delivery, the contract price being by so much higher 
 than the market price, but the evidence was rejected, against the opinion, 
 however, of Martin, B. ; Brady v. OaMler, 3 H. & G. 112 ; 33 L. J. Ex. 300. 
 As to shares, see Powell v. Jessop, IS C. B. 336. 
 
 (g) WiUiams v. Reynolds, 6 B. & S. 495 ; 34 L. J. Q. B. 221. 
 
 M.D. N
 
 178 REFUSAL TO DELIVER GOODS. 
 
 when tallow was 71s. per cwt., the defendant apprised the 
 
 plaintiff that the goods were sold to another, and that he 
 
 would not execute the contract. On the 81st December the 
 
 price of tallow was 81s. per cwt. It was held that the damages 
 
 should be regulated by the price on the 31st December. The 
 
 Court said, that the contract, being mutually made, could only 
 
 be dissolved by the consent of both parties. The defendant 
 
 had all the month of December to deliver the tallow in, and 
 
 the plaintiff was bound to receive it until after the 31st. It 
 
 was said that the plaintiff might have bought other tallow in 
 
 the market : the answer is, he was not bound to do so ; but 
 
 further, the defendant might have bought other tallow in the 
 
 market on the 1st October, or any other subsequent day, and 
 
 have delivered it if he would [h). 
 
 Where distinct In this case it will be observed, the plaintiff was not bound 
 
 times of de- to treat the contract as broken at all till the 31-st December, 
 livery. 
 
 and therefore the entire damage was to be calculated from that 
 date. But where the contract is to deliver goods at certain 
 specified periods, in specified quantities, this is, in fact, a set 
 of distinct contracts ; and as each period arrives, if no delivery 
 or only a partial delivery takes place, the damages will be the 
 difference between the contract price and the market price on 
 that day, of the quantity which ought to have been then 
 suppHed. And even if the defendant absolutely repudiates his 
 contract at any period previous to the final date specified, and 
 the plaintiff elects to treat the contract, as then at an end, yet, 
 in considering the question of damages, they will still be 
 estimated with reference to the times at which the contract 
 ought to have been performed (/). 
 Intermediate An intermediate case arose under the following circum- 
 
 ^^°- stances : — The defendants made a contract with the plaintiff 
 
 in these terms, " Sold to the plaintiff 5000 tons of iron rails at 
 11/. 5.S-. per ton, delivered f. o. b. at Newport, the deb very to 
 commence by the 15th of .January, and to be completed by the 
 15th of May. Lithe event of the defendants exceeding the 
 
 [h) Leifjh V. Patcrson, S Taunt. 540 : affirmed, Philpotts v. Evans, 5 M. & 
 W. 476. 
 
 (i) Josling v. Irvine, 6 H. & N. 512 ; 30 L. J. Ex. 78 : Brown v. Mutter 
 L. R. 7 Ex. 319 ; 41 L. J. Ex. 214 : Jioper v. Johnson, L. E. 8 C. P. 167 ' 
 42 L. J. C. P. 65. See ante, p. 173.
 
 REFUSAL TO DELIVER GOODS. 179 
 
 time of delivei-y they shall pay hy way of fine 7s. Gd. per ton 
 per week." The defendants made default in the delivery, 
 which took place in May, June, July, August, and September, 
 in which latter month it was completed. The question arose 
 as to the mode of assessing damages. The Court expressed the 
 difficulty they should have had in interpreting the contract if 
 it had not been for the final clause. AYithout it, they seemed 
 to think, that though no specified times were fixed, it would 
 have been necessary to hold that rateable or reasonable quan- 
 tities would have been deliverable at rateable or reasonable 
 periods between loth January and 15th May. But with the 
 final clause they held the meaning to be, that the fine was 
 intended to cover all damages arising from delay, and that it 
 must be counted from the loth May (k). 
 
 In all these cases there was a stated time fixed for the Damages when 
 completion of the contract. Where there is no time fixed, fl^ecrfor 
 damages will be calculated from the period at which the performance, 
 defendant refuses to perform it. Such a refusal leaves no 
 further locus 2J(Bnitentia, to himself, and of course the plaintiff 
 cannot treat the agreement as any longer subsisting. There- 
 fore where in such a case the defendant sold the goods to a 
 third party, the measure of damages was held to be the differ- 
 ence between the contract price and the price at wdiich they 
 were sold (l). And in a similar case, where the plaintiif 
 wrote, " I beg to give you notice, that I am prepared to take 
 up the fifty new Bradfords I purchased of you on the 3rd of 
 February last ; and if those scrips ai'e not delivered to me on 
 or before the 10th inst., I shall buy them in against you, and 
 debit you with the difference ; " Held, that as the plaintiff had 
 given the defendant till the 10th to deliver the shares, he was 
 not entitled to calculate the damages with regard to any amount 
 the shares might have sold for subsequently to the 10th (m). 
 
 Where the time for performing a contract of sale has been Postponement 
 postponed, at the request either of vendor or purchaser, and pe,.formaucc. 
 the contract is ultimately brokeu, this has the effect of deferring 
 the period at which the breach takes place, and therefore alters 
 
 (k) Berrjheim v. Blaevavon Iron Co., L. R. 10 Q. B. 319 ; 44 L. J. Q. B. 92. 
 \l) Greaves v. Ashlin, 3 Camp. 426. 
 
 (m) Shmov. Holland, 15 M. & W. 136. See Coclercll v. Van Diemeiis 
 Zand Co., 18 C. B. 484. 
 
 N 2
 
 180 REFUSAL TO DELIVER GOODS. 
 
 the date with reference to which the damages are to be calcu- 
 lated. The old contract continues, but the date of the breach 
 is shifted. The damages for non-delivery or non-acceptance of 
 the goods will be calculated at the market price of such goods 
 on the last day to which the contract was extended if a date 
 was fixed, or at the date when the plaintiff refused to grant 
 further indulgence, or at a reasonable period after his last 
 Delivery by grant of an indulgence {n). Where the delivery is to be by 
 insialments. instalments, difficulty may occur upon such postponement, 
 unless provision is made to determine whether the instalments 
 are to continue or to accumulate. Tyers v. RosedaU and 
 Forrylull Co. (o) was an instance of this nature. There the 
 defendants contracted to sell the plaintiffs 2000 tons of iron, in 
 monthly quantities of IGGf tons, over 1871, or sooner if 
 required. The plaintiffs at various periods between January 
 and December, 1871, requested the defendants to forbear from 
 delivering the entire quantity contracted for. In December, 
 1871, they required delivery of the whole undelivered balance 
 of the 2000 tons. The defendants refused to deliver any more 
 than their monthly quantity due in December. In the original 
 Court, Martin, B., held, in opposition to the majority, that the 
 contract still continued, and that the plaintiff was entitled to 
 damages calculated upon the market price of the whole un- 
 delivered portion of the 2000 tons in December. On appeal 
 the Court held that the contract continued. Cockburn, C.J., 
 considered that the defendants were only bouud to continue 
 their monthly instalments till the whole delivery was made. 
 Blackburn, J., was in doubt whether they were bound to deliver 
 the whole balance in December, or were entitled to deliver 
 
 (w) Ogle V. Earl Vane, L. R. 2 Q. B. 275 ; 36 L. J. Q. B. 175 ; afBrmed 
 L. R. 3 Q. B. 272 ; 37 L. J. Q. B. 771 : Hickman v. Haijnes, L. R. 10 C. P. 
 r.'JS ; 44 L. .1. 0. P. 358. See Llamamlct Tin Plate Co., L. R. 16 Eq. 155 ; 
 and for the distinction between an alteration of the original contract and au 
 arrangement as to the mode of performing it, Pleving v. Downing, 1 C. P. 
 D. 220 ; 45 L. J. C. P. 695. 
 
 (o) L. R. 8 Ex. 305 ; 10 Ex. 195 ; 44 L. J. Ex. 130. Where a contract is 
 to he performed by instalments, and either party has committed a breach of 
 contract as respects one instalment, a question arises as to his right to sue 
 for damages for breach of contract in respect of a subsequent instalment ; as 
 to which, see Simpson v. Crippin, L. R. 8 Q. B. 14 ; 42 L. J. Q. B. 28 : 
 /Lmck V. Midler, 7 Q. B. D. 1)2 ; 50 L. J. Q. B. 529 : Merso/ Steel Co. v. 
 yai/lor, 9 Q. B. D. 648 ; 51 L. J. Q. B. 576 ; aifd. 9 App. Ga. 434 ; 53 L. 
 J. Q. B. 497.
 
 REFUSAL TO DELIVER GOODS. 181 
 
 by monthly instalments, or to demand a reasonable time for 
 delivery. It was not necessary to decide the point, as the 
 defendants in any view were liable, as they had treated the 
 contract as at an end. N'or was it necessary to decide whether 
 the damages should be assessed according to the price at 
 December, or at the subsequent monthly periods. The former 
 period was that which the plaintiff had fixed, and it happened 
 to be advantageous to the defendants. 
 
 In all the above cases it has been assumed that the goods Where "oods 
 were such as could be provided at once in the open market ; ^''® "o* V"""" 
 therefore it is said that damages are to be assessed at their market, 
 market value at the time of the breach. Often, however, the 
 subject matter of the contract is not procurable at all in the 
 market, or not at or about the time of breach. In such a 
 case the principle upon which damages are to be assessed is 
 exactly the same. They are to be taken at the value of the 
 article at the time of breach. Bat the mode of estimating 
 this value is different, for there is no market price which can 
 be quoted. Hence cases of the sort appear to be complicated 
 by varying elements, Avhich are really only different tests for 
 answering the question, What was the article worth at the time ? 
 
 This principle was illustrated by the case of Borrics v. Loss of profit 
 Hutchinson (p). There the defendant had contracted to deliver '"^ element of 
 caustic soda to the plaintiff for shipment from Hull, delivery 
 to be made in June, July, and August. The plaintiff had 
 contracted to sell this soda to a merchant in Russia, of course 
 at an advanced price. Part was never delivered at all ; part 
 not till September and October ; there was no market for 
 caustic soda ; the plaintiff wholly lost his profit on the resale 
 of the portion that was never delivered ; and, in consequence 
 of the advanced season, he had to pay additional freight and 
 insurance on the part that Avas delivered late. It was admitted 
 that the defendant was lial:)le for the loss of profit on the 
 undelivered portion of the soda, and it was held that 
 the additional freight and insurance were also recoverable. 
 Willes, J., said, " We must see what was the difference between 
 the value of the soda when it was to have been delivered and, 
 when it was, in fact, delivered. Now, if the soda had been 
 
 (p) 18 C. B. N. S. 445 ; 34 L. J. C. P. 169.
 
 182 
 
 EEFUSAIi TO DELIVER GOODS. 
 
 AJditional ex- 
 penses caused 
 by breach of 
 contrast. 
 
 delivered at the time contracted for, it might have been easily 
 transferred to Eussia ; when it was delivered, it was also capable 
 of being transferred to Russia, but at a greater cost for freight 
 and insurance ; therefore, as a mere question of what was the 
 difference in value of the soda when delivered, and when con- 
 tracted to be delivered, the difference between what would have 
 to be paid for fi'eight and insurance at these periods constitutes 
 the measure of damages." 
 
 It is obvious that the liability to the profit upon the resale 
 was determined by exactly the same consideration. The value 
 to the plaintiff" of that portion which was never delivered, was 
 the price which he would have got for it in Russia, minus the 
 cost of getting it there. On the other hand the plaintiff 
 claimed to recover as farther damages the amount which his 
 vendee in Russia had recovered from him for non-delivery of 
 l)art. This he was held not entitled to recover. And clearly 
 so ; because that amount did not enter into the value of the 
 article at the time of breach, but was an ulterior and remote 
 consequence arising from events subsequent to the breach, for 
 which the defendant had not contracted to be liable. 
 
 A later case was governed by the same principle. The de- 
 fendant contracted to supply the plaintiff with 2000 pieces of 
 grey shirting for shipment on the 20th of October. Before 
 the time for delivery he informed the plaintiff that he would 
 be unable to complete his contract. Shirtings of this kind 
 were only procurable by a previous order to the manufacturer, 
 but the plaintiff procured others of the nearest possible quality 
 at a higher price. These he shipped to his vendee, but at the 
 same price for which he had originally contracted. It was held 
 that he was entitled to recover the difference between what he 
 had agreed to pay, and w^hat he was compelled to pay. The 
 value of the goods contracted to be supplied by the defendant, 
 at the time of his breach of contract, wvas the price the plaintiff 
 had to give for the substituted article. And Blackburn, J., 
 likened it to the case of a carrier who liiils to carry a passenger 
 to a given place, in which case the passenger is entitled to take 
 the best substitute in the shape of a conveyance he can get, no 
 matter that it costs much more than the fare {q). 
 
 {q) Hinde v. LiddeU, L. R. 10 Q. B. 265 ; 44 L. J. Q. B. 105.
 
 REFUSAL, TO DELIVER GOODS. 183 
 
 "Where there has been a failure to deliver goods which are Loss of profits 
 not procurable in the market, and they have been resold by 
 the purchaser previous to breach of contract, it often seems as 
 if the question of liability to pay for profits, which has already 
 been discussed, would arise for decision. In reality, however, 
 the resale is an immaterial circumstance, except so far as it 
 may go to prove what the real value was at the time of breach. 
 Where the resale took place in the ordinary course of com- 
 merce, it would be reasonable to accept it as a test of the then 
 value of the article. But where it was a special transac- 
 tion, in which a special price was given, in consequence 
 of the peculiar exigencies of the purchaser, no such inference 
 could be drawn (r). Therefore notice of the resale would in 
 the former case be unnecessary, in the latter probably be 
 useless. 
 
 In the above cases the article to be supplied was intended Article in- 
 
 , -. ,• L 1 T J. -I- IT ^ tended for use. 
 
 for sale, and damages were estimated accordmg to its selling 
 
 value. When an article is purchased not for sale but for use, 
 damages wiU also be assessed with reference to its value to the 
 purchaser. But its value will be determined by other considera- 
 tions, that is to say, by the use for which it was intended, the 
 loss which followed from its not being supplied, and the profit 
 which would have l)een made out of it, if it had been delivered 
 in time. These considerations again will be aifected by the 
 further questions, whether the use for which it was intended, 
 and the loss or profit claimed for, were customary and usual, 
 or special and singular (s). In the latter case will arise the 
 further questions as to notice and contract, which have been 
 already discussed (/). 
 
 Where there has been a contract to deliver fully paid-up 
 shares, the damages will be the market value of the shares at 
 the time at which they ought to have been delivered. Where 
 unpaid shares were handed over in place of fully paid-up, the 
 
 (r) See France v. Gaudet, L. R. 6 Q. B. 199 ; 40 L. J. Q. B. 121 : Gochvui 
 V. Francis, L. R. 5 C. P. 295 : Ho7-ne v. Midland By. Co., L. R. 7 C P. 583 ; 
 affii-med L. R. 8 C. P. 131, ante, p. 29 : Thol v. Henderson, 8 Q. B. D. 
 
 (»*) Portman v. Middlcton, ante, p. 25 : ^meed v. Foord, ante, p. 25 : 
 Gee V. Lancashire .0 Yorkshire Rij. Co., ante, p. 26 : Cory v. Thames Iron 
 JForks Co., ante, p. 27 : Fletcher v. Tayleur, ante, p. 13 : Hales v. L. & 
 N. W. Ry. Co., ante, p. 28. 
 
 (t) Ante, pp. 30, seq^.
 
 184 ACTIONS FOR XOT REPLACING STOCK. 
 
 damages would be the amount remaining unpaid, and for 
 which the recipient would therefore be liable (m). 
 
 In the cases above discussed, no payment has been made 
 for the goods, and on this ground they were distinguished 
 from actions for not replacing stock, because in that case, the 
 borrower holds in his hands the money of the lender, and 
 thereby prevents him from using it altogether (z'). Accord- 
 ingly, where there has been a loan of stock, and a breach of 
 the agreement to replace it, the measure of damages is held to 
 be the whole value of the stock lent, taken at such a rate as 
 will indemnify the plaintiff. Therefore, where the stock has 
 risen since the time appointed for the transfer, it will be taken 
 at its price on or before the day of trial (,r). And it is no 
 answer to say that the defendant may be prejudiced by the 
 plaintiff's delaying to bring the action ; for it is his own fault 
 that he does not perform his engagement at the time ; or he 
 may replace it at any time afterwards, so as to avail himself of 
 a rising market (y). In one case, where it had fallen, it was 
 estimated at its price on the day it ought to have been 
 replaced [z) ; and in auother ease, where no day was named 
 for its replacement, and it had fiillen in value, at its price on 
 the day it was transferred to the borrower {a). But the 
 plaintiff cannot recover the highest price which the stock had 
 reached at any intermediate day {h), because such a measure 
 involves the assumption that he would have sold out upon that 
 day, which is purely speculative profit. Nor can he claim 
 damages for any profit which he might have made had he 
 possessed the stock, at all events unless his wish to have it 
 back for that express purpose was distinctly communicated to 
 the defendant. Therefore, when the plaintiff lent a Five per 
 cent, stock, which was to be replaced on a fixed day, and after 
 
 (m) Mudford's Claim, 14 Ch. D. 634 ; 49 L. J. Ch. 452 ; Ex parte Ayple- 
 yard, 18 Ch. D. 587 ; 50 L. J. Ch. 554. 
 
 (i,i) Per Cur., Gainsford v. Carroll, 2 B. & C. at p. 625. 
 
 {x} Doiones v. Bach, 1 Stark. 318 : Harrison v. Harrison, 1 C. & P. 412 : 
 Shepherd v. Johnson, 2 East, 211 : Owen v. Routh, 14 C. B. 327 ; 23 L. J. 
 G. P. 105. In the last case the rule stated in the text was laid down as the 
 invariable one, without any reference to a ri.se or fall in the price. 
 
 (,»/) Per Grose, J., 2 East, 212. 
 
 (z) Sanders v. Kentish, 8 T. R. 162 ; see 2 East, 212. 
 
 («) Forrest v. Elu-es, 4 Yes. 492. 
 
 [h] M^Arthur v. Lord Scaforth, 2 Taunt. 257 : see Simmons v. London 
 Joint Stock Bank, [1891] 1 Ch. at p. 284 ; 60 L. J. Ch. 313.
 
 ACTIONS FOR NOT REPLACING STOCK. 185 
 
 that day government gave the holders an option to be paid off 
 at par, or to commute their stock for Three per cents. ; the 
 plaintiff expressed to the defendant a wish to have the stock 
 repkiced, that he might be paid at par, but no wish to take the 
 new stock. Held that he was not entitled to recover the price 
 of so much Three per cent, stock as he might have obtained in 
 exchange for his Five per cents, (c). 
 
 In the case cited, the profits claimed were both contingent Codus on 
 in their nature, and cohateral to the breach of contract. But ^ °*^ ' 
 where a bond was given to secure tlie replacement of stock, 
 iind payment in the meantime of sums equal to the interest 
 and dividends, and a bonus was afterwards declared upon the 
 stock, it was held by Sir John Leach, M.E., that in equity, 
 and perhaps even at law, the lender was entitled to be placed 
 in the same situation as if the stock had remained in his 
 name, and was therefore entitled to the replacement of the 
 original stock, increased by the amount of the bonus, and to 
 dividends in the meantime as well upon the bonus as upon the 
 original stock (d). 
 
 The rules established in the case of a loan of stock were Damajres for 
 held to be equally applicable where the loan was of mining non-deliveiy of 
 
 1 -J I 1- ^ goods, where 
 
 shares (e). There appears to be a great similarity between payment has 
 
 these cases and that of a contract for the purchase of goods, 
 
 in which payment is made beforehand. The plaintiff is 
 
 equally kept out of his money, and therefore equally unable 
 
 to protect himself by going into the market to buy that which 
 
 the defendant has agreed to sell him. The defendant has 
 
 equally the use of the plaintiff's property, and is therefore 
 
 able to make all the profit by means of it, which the plaintiff 
 
 could have made. If the case is to be governed by exactly 
 
 the same rules as that of stock, it will require no further dis- 
 
 l)ceu made. 
 
 (c) M'Arthur V. ScafortJi, uhi sup. But where stock is transferred as 
 security for a loan, the lender of the money has no right to deal with the stock, 
 and if he does so, the borrower is entitled to the profits made ; Langton v. 
 Waite, L. R. 6 Eq. 165 ; 37 L. J. Ch. 3i5. The mortgagee who suflers a 
 .stock mortgage to continue after the time fixed for replacing the stock, cannot, 
 in a redemption suit at a subsequent period when the market price is lower, 
 exact the price at the time originally fixed, the mortgagor being entitled to 
 redeem on replacing the stock : Bli/th v. Carpenter, L. E. 2 Eq. 501 ; 35 L. 
 J. Ch. 823. 
 
 (rf) Vaugkan v. Wood, 1 Myl. & K. 403. 
 
 (e) Owen v. Mouth, 14 C. B. 327.
 
 186 
 
 KON-DELIVERY OF GOODS PAID FOR. 
 
 American 
 decisions. 
 
 English 
 decisions. 
 
 Dutch V. 
 JFarren. 
 
 cussion. But upon this point there seems to be very little 
 agreement. In America, the Courts of the different States 
 are in hopeless conflict. In Xew York, the value of the 
 article is taken at the highest price between the time fixed by 
 contract and the time of trial (/) unless there has been 
 undue delay on the part of the plaintiff in prosecuting his 
 claim by action. In such a case the Court was inclined to 
 think the rule of damages should be the value of the article 
 at the commencement of the breach (g). In Connecticut it is 
 held that in an action for breach of agreement to deliver, 
 where the money is paid beforehand, the plaintiff may in any 
 case recover the money paid and interest upon it (Ji) ; while in 
 Pennsylvania, the Court take the distinction between an action 
 for breach of the contract and an action for money had and 
 received, on the ground of failure of consideration. In the 
 former case they hold that the value of the article at or about 
 the time it ought to be delivered is the measure of damages, 
 even though that value be less than the sum paid. In the 
 latter case the money paid may be recovered {i). The only 
 two cases in England which touch the subject specifically do 
 not tend to clear it up very much. In the first the defendant 
 agreed in consideration of 262/. 105. to convey five mining 
 shares, as soon as the books should be open. They opened 
 on the 12th of August, and the defendant refused to transfer. 
 By that time the value of the shares had fallen to 175Z. 
 The action was for money had and received. Lord Mansfield 
 held that only the value of the shares on the 12th of August 
 Avas recoverable, saying, " That although the defendant re- 
 ceived from the plaintiff 202/. 10s., yet the difference money 
 only of 175/. was retained by hini against conscience, and 
 therefore the plaintiff', ex ccquo ct bono, ought to recover no 
 more. If the five shares had been of more value, yet the 
 plaintiff could only have recovered the 202/. 10s. in this form 
 of action " {Jc). iSo far as this case professes to decide that 
 
 (/) West V. Wentworth, 3 Cowen, 82 : Arnold v. Suffolk Bank, 27 Barb. 
 (N. Y.), 424. 
 
 (ff) Clark V. Pinney, 7 Cowen, 681. 
 
 {h) Bnsh V. Cavfidd, 2 Conn. 4S5. 
 
 (t) Smethurst v. Woolstuii, 5 Watts & Serg. 106. See all these cases in 
 full, Sedg. Dam. 264—277 ; p. 564 ct seg. 7th ed. 
 
 (^") Dutch V. Warren, 2 Burr. 1010.
 
 NO\-DELIVERY OF GOODS PAID FOR. 187 
 
 where a party utterly refuses to perforin his coatract, he can 
 retain any part of the money paid in consideration of its 
 performance, when sued for money had and received, it may 
 be doubted whether it is law now (/). This species of action 
 was in its infancy in Lord Mansfield's time, aud he seems not 
 to have noticed the inconsistency of allowing the defendant to 
 shelter himself, under the contract, from the effects of an action, 
 whose very foundation was the fact of the contract being at an 
 end. So far, however, as the decision shows, by implication, 
 that in an action on the contract, damages would be measured 
 by the value of the article at the time of breach, it goes in 
 support of the doctrine maintained in Pennsylvania. 
 
 It must be observed that this decision, as affecting mining 
 shares, is contrary to the more recent one of Owen v. Roulh (m), 
 unless a distinction be drawn between the case of a purchase of 
 shares, paid for in advance, and a loan of shares, to be returned 
 on a given day. 
 
 It is dithcult to discover what principle is to be extracted Startup x. 
 from a much later case than that just discussed. The defen- C"^''*<*-2^- 
 dants agreed to sell and deliver on board plaintiffs' vessel, at 
 Odessa, a certain quantity of linseed at 30s. per quarter. For 
 half of this they were paid in advance, but on the arrival of 
 the vessel at Odessa the defendants refused to deliver the 
 linseed. In February, when the cargo would have arrived in 
 England, if it had been delivered at Odessa, the price was 
 from 47s. to 50s. At the time of trial it would have been 
 about 5Gs. The defendants paid money into Court sufficient 
 to cover damages at the rate of 4:7s. The plaintiffs claimed to 
 have them estimated at 5Gs. The jury found that the former 
 sum was sufficient. On the motion for a new trial (which was 
 refused), Lord Abinger, C.B., explained the grounds of the 
 verdict as follows : " The plaintiffs did not prove that they 
 wanted this seed for any particular purpose, or that they sus- 
 tained any peculiar injury from its non-delivery. The plain- 
 tiffs, however, nisistud that they were entitled to the profits 
 which they might possibly have made upon it, if it had been 
 delivered. The jury appeared to me to wish to give no more 
 
 (I) See Chitt. Cont. 543 ; 71, 12th ed. ; 1 Wms. Saund. 269 (c) ; 1 Wms. 
 Notes to Saund. 367 ; Anon., 1 Stra. 407 ; ibid. 406 {n), 3rd ed. 
 (vi) 14 C. B. 327.
 
 XOX-DELIVERY OF GOODS PAID FOR. 
 
 than the money advanced, and the interest upon it. I am not 
 aware of any rule for estimating damages for speculative profits, 
 besides taking the interest on the money advanced. It was 
 not proved that the phaintiffs could have made more than 5 per 
 cent, on that money ; or that they had not credit at their 
 bauker's to that extent, and thereby had sustained any incon- 
 venience." And Aldcrson, B., said, " The price at the time of 
 notice was not the proper criterion for estimating the damages: 
 for as the plaintiffs had ah'cady parted with their money, they 
 were not then in a situation to purchase other seed. The more 
 correct criterion is the price at the time when the cargo would 
 have arrived in due time, according to the contract ; when, if 
 it had been delivered, the plaintiffs would have been enabled to 
 resell it. Another criterion is, to consider the loss of the gain 
 which the party would have made, if the contract had been 
 complied with. In the present case, the loss which the plaintiils 
 have sustained arises from their being kept out of their money. 
 That is a matter to be calculated by the interest of the money 
 up to the time when, by the course of practice, the money could 
 have been obtained out of Court " (n). It will be observed 
 that the finding of the jury in this case may have proceeded 
 from either of two principles, which have nothing in commoi), 
 and which are both sanctioned by the Court. They did, in 
 fact, give damages proportioned to the price of the article at 
 the time it ought to have been delivered to the plaintiffs, so as 
 to be turned to profit. This is in accordance with the doctrine 
 of Pennsylvania, and of Dutch v. Warren. But Avhetlier they 
 chose the sum because it did accord with that price, and were 
 merely fortified in their conclusion by finding that it amounted 
 to a return of principal and interest ; or whether they chose it 
 because it amounted to principal and interest, without any 
 reference to any other circumstance, we cannot tell. If the 
 former was their reason, we have the judgment of Alderson, B., 
 that it was the more correct criterion. If the latter, we have 
 also the opinion of the same Baron that it was another 
 criterion ; and the judgment of Lord Abiuger, who says that 
 he was not aware of any other way of estimating damages for 
 speculative profits. This opinion, by-the-bye, is in remarkable 
 
 (n) Startiqy v. Cortazzi, 2 C. C. M. & R. 165.
 
 NON-I)F,I,IVERY OF GOODS PAID FOR. 189 
 
 accordance with that thrown out b}' the Court of Common 
 Pleas, in the case of Flokher \. Tayleur {o). 
 
 Sucli is the unsettled state of the law upon the subject. Further dis- 
 Mr. Sedtj'wick is of opinion that the period of breach is the pQ-^^^" ° 
 true time, in all cases, for estimating the damages, unless it 
 can be shown that the article was to be delivered for some 
 specific object known to both parties at the time, and that thus 
 a loss within the contemplation of both parties has been sus- 
 tained (j)). This doctrine cannot be maintained in England, 
 if, as he also thinks, there is no solid reason for making any 
 difference between stock and any other vendible commodity. 
 It is quite settled that the price of stock may be taken at the 
 time of trial {q). The cases may, however, be distinguished 
 on the ground that stock may be supposed to be purchased 
 rather as an investment than for resale, while goods are bought 
 expressly to sell again. Consequently, it may be assumed that 
 the former would have remained in the possession of the buyer 
 till the time of trial, while no such presumption can be raised 
 in the latter case. If this be so, damages might fairly be cal- 
 culated in regard to stock, at the price it bore at the time of 
 trial ; in regard to goods, according to their price at the latest 
 period when we could be sure they would have remained in the 
 plaintiff's hands, viz., the time they ought to have been de- 
 livered. This rule could produce no practical injustice, for if 
 ever this price proved less than that paid, the plaintiff would 
 have it in his power to treat the contract as rescinded, and sue 
 for money had and received, as on a failure of consideration. 
 
 AVhatever is finally settled to be the rale where goods have Damages when 
 been paid for in advance, will equally apply where payment has J°°Ji,f J,!^!^ J' 
 been made by bills, as long as they are current. But when is dishonoured. 
 they are dishonoured, the vendor is just in the same position as 
 if no bill had been given at all. and in an action against him, 
 only the difference of price can be recovered (r). 
 
 A somewhat analogous case to those just discussed is where 
 a person, by means of legal process, whicli ultimately fails, 
 
 (o) 17 C. B. 21. Ante, p. 13. 
 (p) Sedg. Dam. 274 ; 578, 7th ed. 
 (q) Ante, p. 184. 
 
 (r) Fnlpy v. Oakelc/, 16 Q. B. 941 ; 20 L. J. Q. B. 380 : Griffith. 
 Perry, 1 E. & E. 680 ; 28 L. J. Q. B. 2U4.
 
 190 
 
 KON-DELIVERY OF GOODS PAID FOR. 
 
 Loss arising 
 from legal 
 proceedings. 
 
 Order for spe- 
 cific delivery 
 of goods. 
 
 Actions on a 
 warranty. 
 
 prevents another from dealing with his own property. The 
 plaintiff claimed certain shares as his own property, and, on 
 giving the usual undertaking as to damages, obtained an inter- 
 locutory injunction, restraining the shareholder and his mort- 
 gagee from parting with the shares. Before the trial the 
 mortgagees obtained a summons under which they prayed that 
 the shares might be sold, the proceeds being paid into Court. 
 This was successfully opposed by the plaintiff. On the hearing 
 his action was dismissed, and the mortgagees claimed as 
 damages the difference between the selling price of the shares 
 when the action was dismissed, and the highest price they had 
 touched during the continuance of the injunction. Romer, J., 
 held that the proper measure of damages was the diflierence 
 between the prices on the day the injunction was granted and 
 the day the summons asking for a sale was issued {s). On the 
 last named day the readiness to sell was undoubted. It was 
 purely speculation to assume that the mortgagee would have 
 sold on the very day on which prices reached their climax. In 
 this case the plaintiff could not have obtained his injunction 
 ■without undertaking to indemnify the defendant. But where 
 two i3arties are contending for the custody of a particular 
 subject matter, and the Court appoints a receiver, the illegal 
 custody of the wrongful holder ceases, and any damages subse- 
 quently suffered by the rightful claimant are due to the law's 
 delay, and not to the wrongful act of the opposite party (t). 
 
 By the Mercantile Law Amendment Act, 1856 (19 & 20 
 Vict. c. 97), s. 2, where specific goods have been sold, the 
 Court may order execution to issue for their delivery, and the 
 jury may be directed to find, by their verdict, what the goods 
 are, what sum the plaintiff would have been liable to pay for 
 their delivery, what damages, if any, he would have sustained 
 if the goods should be delivered under execution, and what, if 
 not so delivered. 
 
 1. In actions upon a warranty, the damages may depend 
 cousideral:)ly upon the fact of the article having been returned 
 or not ; this will in many cases be a matter entirely at the 
 option of the vendor. If a specific article has been sold with 
 
 (s) Mansell v. British Linen Co., [1892] 3 Cli. 159 ; 61 L. J. Ch. 696. 
 {t) Peruvian Guano Co. v. Dreyfus, [1892] A. C. 166 ; 61 L. J. Ch. 749.
 
 ACTION OX WARRANTY. 191 
 
 a warranty, and is found not to answer it, the vendee cannot Right to 
 force the vendor to take it back, after he has received it («), ^^ "rngooc. 
 unless there is a special contract to that etfect (.r), nor can he 
 even refuse to receive it (//). Where, however, the articles 
 purchased are not ascertained when the barg-ain is made, the 
 purchaser may refuse to receive them, or send them back, 
 having only kept them a reasonable time to ascertain their 
 insufficiency (z). 
 
 AVhen the thing sold has been returned, and no special loss Damages wlien 
 has accrued, the damages consist of the price paid (a). If, f^'*^'^^^ ^^^ 
 
 ' ^ 1 1 \ / ' been retunied. 
 
 however, no payment has been made, the damages could, it is 
 apprehended, be merely nominal. As the contract is rescinded, 
 no claim for the price could ever be made, and the hypothesis 
 assumes that no other injury has taken place. 
 
 AVhere the article has not been returned, the measure of when article 
 damage will be the difference between its value, with the defect '*=**^ not been. 
 
 ^ returned. 
 
 warranted against, and the value which it would have borne 
 without that defect. It was formerly laid down that the 
 measure would be the difference between the contract price, and 
 that for which it would sell with its defect {h). But the rule 
 in England is now settled as stated above (c), and the doctrine 
 
 (u) Street v. Blmi, 2 B. & Ad. 456 : Gompertz v. Denton, 1 C. & M. 207. 
 
 (x) Head V. Tattersall, L. R. 7 Ex. 7 ; 41 L. J. Ex. 4. 
 
 (y) Dawson v. Collis, 10 C. B. 523. Where the property in the specific 
 chattel has passed by the contract, it is settled that the purchaser cannot reject 
 it. See 2 Smith's L. C. 3Lt, yth ed. ; Ilei/icort/i v. Hutchinson, L. R. 2 Q. 
 B. 447 ; 36 L. J. Q. B. 270. 
 
 (;) OkcU V. Smith, 1 Stark. 107 : Street v. Blay, ubi sup. Azemar v. 
 Ca.s-f/Zrt, L. R. 2 C. P. 431 ; 36 L. J. C. P. 124 ; affirmed in Ex. Ch., L. R. 
 2 C. P. 677 ; 36 L. J. C. P. 263: Baimerman v. White, 10 C. B. N. S. 844 ; 
 31 L. J. C. P. 28 : Heilbutt v. Hickson, L. R. 7 C. P. 438 ; 41 L. J. C. P. 
 228. The vendee is not bound to send the goods back, but may call on the 
 vendor to take them away. See Luci/ v. Mouflet, 5 H. & N. 229 ; 29 L. J. 
 Ex. 110. 
 
 (a) Caswell v. Coare, 1 Taunt. 566 : Heilbutt v. Hiclcson, L. R. 7 C P. 
 438 ; 41 L. .1. C. P. 228. 
 
 {b) (Ja^well V. Coare, ubi sup. 
 
 (c) See per Buller, .1., 1 T. R. 136 ; per Lord Eldon, C. J., Curtis v. 
 Bannay, 3 Esp. 82: Clare v. Mai/nard, 6 A. & E. 510: Cox v. Walker, 
 ibid. 523, n. : Jones v. Just, L. R. 3 Q. B. 197 ; 37 L. J. Q. B. 89 : Loder 
 V. Kekule, 3 C. B. N. S. 128 ; 27 L. J. C. P. 27. In this last case, there 
 had been a prepayment by the plaintiff' on account of the goods, but it was 
 held] that this could not be taken into account in apportioning the damages. 
 
 In connection with actions for breach of warranty, may be mentioned a case 
 in which a company had improperly insei-ted a ijerson's name in their register, 
 and given him certificates for shares which he was thus enabled to sell. The 
 vendee paid for the shares, and was registered as a shareholder, but his name 
 was subsequently removed on an application by the real owner, under 25 & 26
 
 192 ACTION ON WAEIIANTY. 
 
 in America is the same (d). Where the article has been resold 
 by the purchaser, before the breach of warranty has been dis- 
 covered, the price obtained at this second sale may be left to 
 the jury, as a mode of estimating what the real value of the 
 chattel, if perfect, would have been ; but the difference between 
 this price and the purchase money cannot be given as specific 
 damage, on account of the loss of profit which might have been 
 made on it (c). 
 Question as to It is quite clear that this rule does complete justice where 
 effect of rule ^\^q stipulated price has been paid, and it is presumed that the 
 have not "beln Same rule would apply where the price had not been paid, as 
 paid for. t^i^e purchaser would still be liable to an action for it. A ques- 
 
 tion might arise, however, as to the effect of a recovery for 
 breach of warranty, supposing the purchaser to be subsequently 
 sued for the price. The general rule in such cases is, that the 
 inferiority of the article may be given in evidence in reduction 
 of damages (/). Could this be done under the circumstances 
 supposed ? Take the case of a horse sold for 100/. with a 
 warranty, and assume that sum to be its real value if souud. 
 It turns out to be unsound, and is resold for 30/. The pur- 
 chaser sues on his warranty, and recovers 70/. The sums make 
 up the KjO/. for which he is lial)le, and no injury is done hira. 
 But if, when sued for the price of tlie horse, he could set up its 
 unsoundness, so as to reduce the damages to 30/., it is plain 
 that he would pocket 70/. by the transaction. It is conceived 
 that he would be precluded from doing so by the former re- 
 covery. It has, no doubt, been held in several cases, that it is 
 no bar to an action for brench of contract in the quality of a 
 chattel, that its inferiority had been previously used in reducing 
 
 Yict. c. 89, s. 35, for the rectification of the register. The company were 
 considered to have held out the vendor as entitled to the shares, and were 
 directed to pay to the innocent vendee the value of the shares on the day on 
 wliich the company first refused to recognise him as a shareholder, with in- 
 terest at 4 per cent, as damages. If the snares had been good shares, and 
 the company had refused to put the vendee on the register, the measure of 
 dnmages would have been the market pi-ice at that tiu\e ; if no market price 
 at that time, then a reasonable comiiensation to be assessed by the jury, for 
 the loss of the shares ; lie JJahid and San Francisco Bi/. Co., L. R. 3 Q. B. 
 .')84 ; 37 L. J. Q. B. 176 : followed in Hart v. Frontino, f(c. , Gold Minintj 
 Co., L. R. 5 Ex. p. 116 (n.) : expd. Fe Ottos Kopje Diamond Mines, [1S93] 1 
 €h. 618 ; 62 L. J. Ch. 169. 
 
 (d) Sedg. Dam. 291 ; 613, 7th ed. 
 
 (p) Clfirc V. Maynard : Cox v. W(dkc7-, uhl sup. 
 
 (f) Ante, p. 115.
 
 ACTION ON WARRANTY. 193 
 
 the price to be paid for it (g). Bat it by no means follows that 
 the converse proposition is true. In both the cases cited in 
 the note, the action was to recover on account of some special 
 damage beyond the mere inferiority of the chattel^ but arising 
 out of it. Such special damage could not have been given in 
 evidence, nor allowed for, in the former action ; and on this 
 express ground the second action was permitted. But in an 
 action on the warranty, the inferiority is the principal ground 
 of damage, though other matters may also come into con- 
 sideration. Another decision, which at first sight appears more 
 in point, w'ill be found equally beside the question. An action 
 was brought by a servant for his wages, and it was held that 
 his misconduct might be set up as an answer, though it had 
 formed the ground of an action by his master, and he had been 
 dismissed on account of it {h). But there the former action 
 had been for seducing an apprentice to quit the plaintiff, not 
 for any inferiority in the defendant's own services. The mis- 
 conduct was set up in each case with quite a different object ; 
 in the one case it was alleged as an independent offence, from 
 which special damage accrued ; in the other as a cause justifying 
 dismissal, and therefore negativing all claim to wages. 
 
 When the vendor refuses to take back the article, the vendee Expense of 
 may recover all expenses necessarily caused by its lying on his '^^^' 
 hands till it can be resold ; as, for instance, the keep of a horse. 
 But the time must be a reasonable one, and what is a reason- 
 able time is a question for the jury, and depends upon the cir- 
 cumstances of each case {i). And no damages can be recovered 
 on this account, unless the purchaser has tendered the article 
 to the seller {k). 
 
 When a contract embodying a warranty is entered into with Damages 
 
 *^ ^ \ u 1. J. 1 where article 
 
 reference to a known particular purpose, damages ought to be ^q^^„\^^ for 
 
 a specific 
 
 purpose. 
 
 {g) Mondel v. Steel, 8 M. & W. 858 : Rigge v. Burhldge, 15 M. & W. 
 598. The purchaser, when sued for the price, is not bound to set up the 
 defects in the chattel in reduction of damages. He may pay the full price, 
 and then sue for breach of contract : Davis v. Hedges, L. R. 6 Q. B. 687 ; 
 40 L. J. Q. B. 276. 
 
 (/() Turner v. Robinson, 5 B. & Ad. 789. 
 
 (j) Chestcrman v. Lamb, 2 A. & E. 129 : Mis v. ChinnocJc, 7 C. & P. 
 169. 
 
 [k) Caswell v. Coare, 1 Taunt. 566. Quccre, ought there nottobea set-ofif 
 against this item of damage, wliere the article has been used beneficially, as, 
 for instance, a horse ? 
 
 M.D.
 
 194 ACTION ON WARRANTY. 
 
 given for the loss incurred by the f aihire of that purpose. Where 
 the article sold was scarlet cuttings, which were shreds of scarlet 
 cloth used in trade with China, and the declaration alleged 
 that they were not scarlet cuttings, whereby they were of no 
 use or value to the plaintiff", Lord Ellenborough told the jury 
 that, under these words, they were to consider the effect of their 
 being of no use or value in China. " I am decidedly of opinion," 
 he said, " that tlie value is to be understood as the value which 
 the plaintiff would have received had the defendant fully per- 
 formed his contract ; " and this view was supported by the 
 Court on a motion for a new trial (/). In another case, where 
 a link in a chain cable, which had been sold with warranty, 
 broke, it was held that the value of the anchor which was lost 
 along with it might be recovered (_m). But this case was treated 
 as of no authority in HaiUey v. Baxcndale (n). And Alder- 
 Son, B., said that on the same princii^le the jury might have 
 given the value of the ship if it had been lost. No doubt the 
 enormity of the damages which would be recoverable in such a 
 case is very startling. But if a chain cable is sold for the ex- 
 press purpose of holding a ship to its anchor, and if, through 
 some defect in it, the ship drifts on shore, it is difficult to see 
 why the damages should stop at any smaller amount. Where 
 the pole of a carriage broke, in consequence of which the horses 
 became frightened and were injured, the Court held that the 
 gale of the pole carried with it an implied warranty that it was 
 reasonably fit for its purpose ; and that as to damages, the 
 proper question to leave to the jury was, whether the injury to 
 the horses was or was not a natural consequence of the defect 
 in the pole (o). If a similar question were left to the jury in 
 the case of a ship lost through a faulty cable, there seems to 
 be no reason why their verdict should not be acted on. If the 
 damages are a hardship to the vendor of a cable, the shipwreck 
 is an equal hardship to the purchaser. In a recent case, where 
 a passenger vessel was warranted to start on a particular day, 
 and did not, the plaintiff was held entitled to recover not 
 
 {I) Bridge v. Wainc, 1 Stark. 504. 
 (???) Borrodaile v. Brunton, 8 Taunt. 535. 
 (?0 23 L. J. Ex. ISO. 
 
 (o) Randall v. Newson, 2 Q. B. D. 102 ; 46 L. J. Q. B. 259 : see Smith 
 . Green, 1 C. P. D. 92 ; 45 L. J. C. P. 28.
 
 ACTION OX WARRANTY. 195 
 
 only the passage money, but his expenses incurred while 
 waiting (p). 
 
 Where seed barley was sold, warranted to be Chevallier seed 
 barley^ and, on being sown, produced a crop of inferior quality, 
 the natural amount of damage was considered to be, the differ- 
 ence between the value of the inferior crop and of that which 
 would have come up, if Chevallier seed barley had been sown (q). 
 In this case claims for compensation had been made upon the 
 plaintiffs by various persons to whom they had sold the seed 
 barley with a similar warranty. It was held that the plaintiffs 
 might recover the amount of the damages sustained by the 
 sub-purchasers, without having previously made them compen- 
 sation. The plaintiffs were under clear legal liability to com- 
 pensate them, and it was for the jury to assess, once for all, the 
 probable amount which they would have to pay (r). 
 
 It is still an undecided point whether the plaintiff can re- Expense in- 
 cover any expenses he lias been at in advancing the value of the advanci^ng 
 thing sold. The question arose in the following manner : The value of the 
 defendant sold a horse to the plaintiff, with warranty, for 45/., 
 and the latter resold it to C. for 55/. On discovering its un- 
 soundness, he had to give up his bargain with C, and he then 
 sued the defendant, stating the loss of his bargain as special 
 damage. It was contended that the additional lOZ. for which 
 the animal could have been resold might be recovered as the 
 -amount of expense and care bestowed on the horse, by which 
 its actual value was raised. Coleridge, J., said, ''The plaintiff 
 cannot recover upon this record. The declaration merely 
 alleges that the plaintiff bought the horse for so much, and 
 sold him at so much more, not alleging any cause of the 
 advance. This shows only that the plaintiff is seeking to 
 recover for a good bargain lost, which, it is admitted, cannot 
 be done." Patteson, J., said, " Whether or not he could have 
 recovered if the damage had been differently laid, it is not 
 necessary to say " (s). In the particular case it is quite clear 
 that the plaintiff had not added 10/. worth of value to the 
 
 ip) Cranston v. Marshall, 5 Exch. 395. 
 
 (q) Randall v. Ikiper, E. B. & E. 84 ; 27 L. J. Q. B. 266 : Passenger v. 
 Thorium, 35 Barbour (N. Y.) 17 : Ferris v. Comstoclc, 33 Conn. 513. 
 
 (r) Randall v. Raper, supra: and see Binyle v. Hare, 7 C. B. N. S. 145 ; 
 29 L. J. 0. P. 143. 
 
 (s) Clare v. Maynard, 6 A. & E. 519. 
 
 o 2
 
 196 
 
 ACTION ON WARRANTY. 
 
 Costs of foi'mcr 
 action. 
 
 Misrepresen- 
 tation. 
 
 horse, for it ultimately sold only for 17/. 4s., aad it is improbable 
 that it could have been only worth 11 4s. when it came into 
 his possession. If the value were really added, however, it is 
 difficult to see how it could form a claim for damage. Suppose 
 a young horse, with a latent defect that renders it only worth 
 20/., is sold with a warranty for 40/., and the purchaser by 
 skilful training adds so to its real value, that if sound it would 
 sell for 60/., but with its blemish will only sell for 40/., and 
 does sell for that price. Here, on the principle stated before, 
 he will obtain the diflference between its value sound and un- 
 sound, which appears to be 20/. His skill in training has been 
 paid for already, in the increased price of the horse, and there 
 can be no reason why it should be paid for again. Of course 
 it would be very diflFerent, if, in consequence of the unsound- 
 ness, all his labour and expense had been utterly thrown away, 
 or produced much less result than they ought. In such a case 
 the question would probably be, whether it was bought with a 
 view to any purpose which would render such labour and 
 expense necessary, the purpose being part of the contract. As, 
 for instance, if an untrained horse were bought for a lady's use, 
 and warranted free from vice. If it turned out incorrigibly 
 vicious, it never would be fit for the purpose, and yet the 
 preliminary training must have l^een contemplated by the 
 seller. Under such circumstances, the expenses would appear 
 to be fairly recoverable, not because they had added to the 
 value of the animal, but precisely because they never could. 
 
 Where an article sold with a warranty has been resold with 
 a similar warranty, and the second purchaser, on discovering 
 the defect, brings an action against his vendor, the costs in- 
 curred in this action are sometimes recoverable,as damages, in an 
 action by the first purchaser against his vendor. This subject, 
 however, has been sufficiently disciissed in a previous chapter {t). 
 
 Where there is a misrepresentation of the character or con- 
 dition of the goods, the vendor is responsible for all injury 
 which is the direct and natural result of the purchaser's acting 
 on the faith of his representation. Therefore, where a cattle 
 dealer fraudulently represented a cow to be free from infectious 
 disease when he knew that it Avas not so, and the purchaser 
 
 (0 Ante, p. 97.
 
 ACTION OX WARKAXTY. 197 
 
 placed it with five others which caught the disease and died, 
 the latter was held entitled to recover as damages in an action 
 for fraudulent misrepresentation the value of all the cows (ii). 
 And the same rule would be applied where there was no fraud, 
 but the beast was warranted free from disease, and both parties 
 contemplated its being placed with other stock (.r). But, 
 although it is illegal to bring a glandered horse into a public 
 market or fair, there is nothing illegal in a simple sale ; there- 
 fore, a person who sold a glandered horse without warranty, and 
 without fraudulent misrepresentation, was held not responsible 
 for disease communicated to other horses of the purchaser's in 
 the stable to which he removed it (y). 
 
 The same principles apply to the case of shares. Directors, 
 who, by means of a fraudulent prospectus, induce the public to 
 buy shares which they would not otherwise have purchased, are 
 liable for damages for the misrepresentation. If the under- 
 taking wholly fails, they are liable for the full amount advanced 
 by the shareholders (z). If the shares possess a value, a share- 
 holder who does not sue to rescind the contract, would be 
 entitled to such damages as represent the difference between 
 the value of the shares under the circumstances which really 
 exist, and that which they would have possessed if the repre- 
 sentations had been true (a). 
 
 It is now finaUy settled that no action for deceit can be Kesults of 
 
 „ , , , . , ,1 • misrepresenta- 
 
 maiiitained merely on a false representation where there is no ^j^^^ " 
 fraud (b). But a person who has been induced to enter into a 
 contract by means of a material misrepresentation of facts is 
 entitled to have the contract rescinded, and, as a consequence 
 of such rescission, to be put back into his old position. He 
 does not recover damages against the defendant, but the latter 
 is bound to indemnify him against the consequences and 
 obligations of the contract into which he has been led blindfold 
 
 (w) Mullett V. Mason, L. R. 1 C. P. 559 ; 35 L. J. C. P. 299 : Sherrod v. 
 Langdon, 21 Towa, 518. 
 
 ix) Smith V. Green, 1 C. P. D. 92 ; 45 L. J. C. P. 28. 
 
 («) HUL V. BaUs, 2 H. & N. 299 ; 27 L. J. Ex. 45 ; see per Willes, J., 
 L. 11. 1 C. P. 563 ; Ward v. Hobbs, 3 Q. B. D. 150 ; 47 L. J. Q. B. 90 ; 
 affirmed 4 App. Gas. 13 ; 48 L. J. Q. B. 281, ante, p. 21. 
 
 (z) Arnison v. Smith, 41 Cli. D. 348 ; 58 L. J. Ch. 645. 
 
 (a) Tomlin v. Lace, 43 Ch. D. 191 ; 59 L. J. Ch. 164 : Peek v. Derry, 
 37 Ch. D. at p. 591. 
 
 (6) Dcrry v. Peek, 14 App. Ca. 337 ; 58 L. J. Ch. 864.
 
 198 
 
 SALE OF LAND. 
 
 Actions for 
 hieach of con- 
 tract to convey 
 laiul. 
 
 Damages when 
 contract void. 
 
 Diflferent lots. 
 
 by unfounded statements. The exact extent of this indemnity, 
 whether it extends to all possible future liabilities, or only to 
 those actually incurred, seems to be a matter still open to 
 doubt (c). 
 
 II. Sales of Land. 
 
 1. Actions by vendee against vendor for refusal to convey. 
 
 Where the vendor is unable to complete the contract which 
 he has entered into, the vendee may sue him for its breach, 
 and in such an action he is always entitled to recover the 
 deposit with interest, as special damage when so laid (d) ; or,, 
 even without being laid, from the day of demand under 3 & 4 
 W. ly. c. 43, s. 28 ; he is also entitled to the expenses of 
 investigating title (e), such as comparing deeds, searching for 
 judgments, and journeys for that purpose (/), even though 
 he has not paid his attorney's bill before commencing the 
 action (tj). 
 
 Of course, in no case can any action be brought on the 
 contract to seh, unless there has been a binding one. But 
 where the contract is for any reason void, the purchaser may 
 recover the deposit or purchase money, and a moiety of the 
 auction duty, if payable by purchaser, as money had and 
 received to his use, but neither interest (unless under 3 & 4 
 W, IV. c. 42, s. 28) nor expenses of investigating title (A). 
 At any time up to the completion of the purchase the pur- 
 chaser may rescind the contract, and recover his money on 
 account of defect of title ; but he cannot do so once the 
 purchase is finally closed, and the conveyance fully executed 
 by all the parties whose assent is necessary (/). Where he has 
 purchased different lots, he may abandon one for defect of title 
 and keep the others, but he cannot retain part and give up 
 
 (c) Adam V. Newliggimj, 34 Cli. D. 582 ; 13 App. Ca. 308 ; 57 L. J. Ch. 
 1066. 
 
 {d) Dc £ernnlef! v. Wood, 3 Camx). 258 : Farquhar v. Farley, 7 Taunt. 
 592. As to the vendee's liability to pay interest upon the purchase money 
 from the day fixed for completion, under the common condition of sale to that 
 effect, see Williams v. Glenton, L. R. 1 Ch. 201 
 
 (f) Walker v. Moore, 10 B. & C. 416. 
 
 (/) HodqesY. Lord Lichfield, 1 Bingh. N. C. 492: Orme v. Broughton, 
 10 Bingh. 533. 
 
 {g) Richardson v. Chasen, 10 Q. B. 756. The vendee's attorney cannot 
 sue the vendor : Wilkijison v. Grant, 18 C. B. 319 ; 25 L. J. C. P. 233. 
 
 (A) Gosbell V. Archer, 2 Ad. & Ell. 500. 
 
 (i) Johnson v. Johnson, 3 B. & P. 162.
 
 BREACH OF COXTRACT TO CONVEY. 199 
 
 part of the same purchase {k). Each lot set up at an auction 
 is a distinct sale {!). 
 
 The purchaser cannot recover expenses incurred previous Wliat damages 
 to the time fixed for the performance of the contract, which "^^"^o* '^f 
 
 rccovcrGu. 
 
 he has entered into for his own benefit (m) ; nor the expense 
 of surveying the estate (n) ; nor of a conveyance drawn in 
 anticipation of the purchase being completed (o) ; unless the 
 vendee, by the misrepresentations of the vendor, and without 
 laches on his own side, has been induced to think that every- 
 thing has been satisfactorily ascertained {p) ; nor the costs of 
 a Chancery suit for specific performance, when brought by the 
 vendor against the vendee (q) ; or vice versa (r) ; nor costs in- 
 curred after it was known that a good title could not be made 
 out {s) ; nor the profits arising from a resale of the estate, unless 
 perhaps where there was fraud in the original vendor, and then 
 only in an action based upon the fraud {t) ; nor the expenses 
 of such resale ; nor the sums which he was liable to pay to the 
 sub-contractors for the expenses incurred by them in investi- 
 gating the title ; for all this damage arose from his own prema- 
 ture act, and not from the fault of the vendor {u) ; nor losses 
 arising from the resale of stock procured for the estate {x) ; nor 
 the value of improvements made upon the premises, though the 
 agreement to let expressly contemplated such improvements 
 being made, and stated " that it was understood by and between 
 the parties, that the defendant was possessed of the said pre- 
 mises for his own life, and the life of one Mrs. M., and the 
 survivor of them," which turned out not to be the case. 
 
 (Tc) Johnson v. Johnson, 3 B. & P. 162. 
 
 {D Sm. Merc. Law, Sale : Emmcrson v. Hedis, 2 Taunt. 38. 
 
 {la) Hodges v. Litchfield, supra : Banslipv. PadwicJc, 5 Exch. 615 ; atite, 
 p. 74. 
 
 (n) Ibid. 
 
 (o) Ibid. : Jarmnin v. E'jlestonc, 5 C. & P. 172. 
 
 (p) Richards v. Barton, 1 Esp. 268. 
 
 {q) Hodges v. Litchfield, supra. 
 
 (r) Maiden v. Fyson, 11 Q. B. 292 ; oven-uling Jones v. Dyke, Sug. 
 V. & P. 1078, 11th "ed. ; and see ante, pp. 84—87. 
 
 (s) Pounsett V. Fuller, 17 C. B. 660 ; 25 L. J. C. P. 145 : Sikcs v. Wild, 
 1 B. & S. 587 ; 30 L. J. Q. B. 325 ; affirmed 4 B. & S. 421 ; 32 L. J. Q. B. 
 375. 
 
 (0 Bain V. Fotherrjill, L. R. 7 H. L. 158, 206. 
 
 (m) Walker v. Moore, 10 B. & C. 416. 
 
 [x) Hodges v. Litchfield, 1 Bingb. N. C. 492 : Godwin v. Francis, L. R. 
 5 C. P. 295 ; 39 L. J. C. P. 121.
 
 200 
 
 SALE OF LAND. 
 
 Damages in- 
 curred after 
 knowledge of 
 defective title. 
 
 Damages for 
 the loss of 
 plaintilFs 
 bargain. 
 
 Bain v. 
 FothergiU. 
 
 Damages were limited to 405., found by the jury to be the 
 worth of the lease (one for two years) without the improve- 
 ments on the day when plaintiff offered to take it (y). Nor 
 can the vendee recover as damages the loss incurred by selling 
 out stock with a view^ to the completion of the bargain, for 
 the plaintiff" had a chance of gaining as well as losing by the 
 fluctuation of the price " {z). 
 
 And he can in no case recover damages in respect of any- 
 thing that he has incurred since he discovered the defect in 
 the title. Because any proceedings taken with such knowledge 
 must be taken, either from a total indifference to a good title 
 being made out, or from a dishonest desire to force on a con- 
 tract which he is aware cannot be performed, for the sake of 
 getting costs from the vendor. In neither case would the 
 damage be attributable to the false representation or breach of 
 contract by the vendor (a). 
 
 The liability of the vendor of land to pay damages to the 
 vendee for the loss of his bargain, has lately been authorita- 
 tively settled by the decision of the House of Lords in Bain v. 
 FothergiU (I)). Till that decision there had always been a 
 struggle to bring each particular case within the general ruling 
 in Flureau v. Thornhill (c), or the exception to that ruling in 
 Hopkins V. Grazebroolc {d). The general ruling was that such 
 damages were not recoverable (in the absence of fraud) where 
 the contract went otT through a defect of title. Q'he supposed 
 exception was, that they were recoverable where the vendor 
 had no title at all, and knew he had none, or knew he had 
 a different title from that which he contracted to sell. But 
 IlojjJcins V. Grazebroolc , and all the cases which depended upon 
 it, are now overruled. "The rule as to the limits within which 
 damages may be recovered upon the breach of a contract for 
 the sale of a real estate must be taken to be without exception. 
 If a person enters into a contract for the sale of a real estate, 
 knowing that he has no title to it, nor any means of acquiring 
 
 yy) Worthington v. Warrington, 8 C. B. 134 ; 18 L. J. C. P. 350. 
 (2) Per Blackstone, J., Flureau v. Thornhill, 2 W. Bla. 1078. 
 [a) Per Blackburn, J., Gray v. Fowler, L. R. 8 Ex. p. 282 ; 42 L. J. Ex. 
 161. 
 
 (6) L. R. 7 H. L. 158 ; 43 L. J. Ex. 243. 
 (c) 2 W. Bl. 1078. 
 ((/) 6 B. & C. 31.
 
 BREACH OF CONTRACT TO CONVEY. 201 
 
 it, the purchaser cannot recover damages beyond the expenses 
 he has incurred by an action for the breach of t\\e contract ; 
 he can only obtain other damages by an action for deceit " (e). 
 
 Xo douJjt this is an exception to the ordinary rule of the Reason of 
 common law, that where a person sustains loss by reason of a ^^"^^^ ^"^' 
 breach of contract he is j^rimd facie entitled, so far as money 
 can do it, to be placed in the same situation with respect to 
 damages as if the contract had been performed (/). But the 
 reason is, that contracts for the purchase of real estate are of 
 an exceptional nature. In the case of a sale of a chattel, the 
 vendor must know, or at all events is taken to know, what his 
 right to the chattel is. But in regard to real estate there must 
 always be some degree of uncertainty as to whether a good 
 title can be effectively made by the vendor ; and, taking the 
 property with that knowledge, the purchaser is not entitled to 
 recover any loss on the bargain he may have made, if in effect 
 it should turn out that the vendor is incapable of completmg 
 his contract in consequence of his defective title. All that he 
 is entitled to is the expense he may have been put to in inves- 
 tigating that matter. He has a right also to take the estate 
 and complete the purchase with that defective title, if he thinks 
 proper to do so. But he is held to have bargained with the 
 vendor upon the footing that he (the vendee) shall not be 
 entitled, under all circumstances, to have that contract com- 
 pleted, and therefore he is not put in a position under such a 
 contract to make a resale, before the matter has been fully 
 investigated, and before it is ascertained whether or not the 
 title of his vendor is a good one (g). 
 
 Of course the ordinary rule of common law applies where the Damages wLea 
 
 „ „ ., ... ,1 ,1 I. c failure is not 
 
 cause of failure arises Irom some other source than want oi f^.^^^^ ^^^(_ ^^ 
 title. In such a case the plaintiff' may recover for any special title, 
 damage he has received, as, for instance, loss in his trade by 
 not getting settled in his house (h). And so, where the plaintiff" 
 
 (e) Per Lord Chelmsford, Bain v. Fothergill, L. R. 7 H. L. 207 ; see per 
 Blackburn, J., Gra7j v. Fowler, L. R. 8 Ex. 249, 282 ; 42 L. J. Ex. Ittl, 
 177 : Oas Liyht & Colce Co. v. Towse, 35 Ch. D. 519 ; 56 L. J. Ch. 889 : 
 Jtoice V. School Board of London, 36 Ch. D. 619 ; 57 L. J. Ch. 179. 
 
 (/) Robinson Y. Barman, 1 Exch. 855 ; 18 L. J. Ex. 202. 
 
 {g) Per Lord Hatherley, Bain v. Fothcryill, L. R. 7 H. L. 211 ; 43 L. J. 
 Ex. 268. 
 
 (A) Ward r. Smith, 11 Price, 19 : Jacques v. Miller, 6 Ch. D. 153 ; 47 L. J. 
 Ch. 544.
 
 202 SALE OF LAND. 
 
 having recovered a judgment for 280/. against B., agreed with 
 the defendant to withhold execution until a certain day, in 
 consideration of which the defendant agreed that he would, on 
 or before that day, erect a house, and cause a lease of it to be 
 granted to plaintiff— such lease, when granted, to be in satis- 
 faction of the judgment ; the defendant broke his agreement, 
 and it was held that the measure of damages was the value of 
 the house, and that it was properly estimated at 280/., being 
 the value of the thing which the plaintiff had agreed to give up 
 in consideration of it (i). 
 Refusal to An intermediate case between that just stated, and the pre- 
 
 make title. yJQ^jg dagg of cases, is where the contract fails from a defect of 
 title, but a defect which the vendor ought to have removed, 
 and could have removed : in other words, not from an inability 
 to make title, but a refusal to do so. An instance of this 
 occurred in the case of En/jcl v. Fitch (Jc), where the vendors, 
 who were mortgagees, refused, on the ground of expense, to 
 turn out the mortgagor who was in possession, and thereupon 
 the purchaser refused to complete, and brought his action. It 
 was held that the vendee was entitled to recover not only his 
 deposit and the expenses of investigating the title, but also 
 the profit which it was shown he could have made on a resale. 
 This decision was passed before the final decision in Bain v. 
 FoihergilJ. So far as it rests upon the authority of Hojilcins v. 
 Grazehroolc, and the line of cases which followed Hoplcins v. 
 Grazehrooli-, it is of course now overruled. But it is submitted 
 that the decision may perfectly well stand, without assuming' 
 the existence of any cases forming an exception to the rule laid 
 down by Flureau v. ThornhiU. The vendor had a perfectly 
 good title, but he refused to go to the expense which was 
 necessary, in order to hand over to the purchaser that which he 
 had undertaken to deliver. It was just as if he had refused to 
 produce or deliver up the title deeds, because they were in the 
 hands of his banker, who had a hen upon them for a loan. It 
 is now settled that every contract for the sale of land is made 
 upon the understanding that it may fail on a defect of title. 
 But there is no understanding that it may fail because the 
 
 (i) Struit V, Farlar, 16 M. & W. 249. 
 
 (k) L. R. 3 Q. B. 314 ; 37 L. J. Q. B. 145 ; affirmed L. R. 4 Q. B. 659 ; 
 38 L. J. Q. B. 304.
 
 BREACH OF CONTRACT TO CONVEY. 203 
 
 vendor does not choose to go to the expense or trouble of per- 
 forming his part of the contract. In remarking upon Engel v. Engel v. 
 Fitch, Lord Hatherley said: "The vendor in that case was 
 bound by his contract, as every vendor is bound by his con- 
 tract, to do all that he could to complete the conveyance. 
 Whenever it is a matter of conveyancing, and not a matter of 
 title, it is the duty of the vendor to do everything that he is 
 enabled to do by force of his own interest, and also by force 
 of the interest of others whom he can compel to concur in 
 the conveyance . . . There could be no doubt whatever in 
 that case that he was acting in gross violation of his contract, 
 which he had the power of performing. AVhether or not the 
 proper mode of correcting that abuse was by giving damages 
 to the plaintiff in respect of the loss of his contract, I will not 
 stop to inquire ; but it is quite clear that that case was exceed- 
 ingly different from the case of FJureau v. ThornMU, where it 
 turned out on investigation that the vendor had no legal 
 title " (/). And so, in another case. Turner, L.J., said : " The 
 vendor is bound to complete the contract, and if he does not 
 take the steps which are necessary to enable him to do so, he 
 is liable for damages upon the contract ; and heavy damages 
 would be given if, having the means of completing the sale, 
 he should decline to take the proceedings necessary for that 
 purpose " (m). 
 
 The same principle was lately applied in a case, not of the 
 same, but of an analogous nature. The mortgagee of one 
 Fleming put up for sale, with possession on completion of 
 purchase, two houses stated to have been recently in possession 
 of Fleming. The purchaser agreed to let the houses to a 
 tenant Avith possession five days after the completion of the 
 contract. When the day came Fleming was still in possession, 
 and the tenant refused to take the houses. The vendor sued 
 the purchaser for specific performance, and the purchaser 
 counter-claimed for specific performance with compensation. 
 It was held that the tenant could have turned out Fleming by 
 
 (l) Bain y. Fothergill, L. R. 7 H, L. 209 ; 43 L J. Q. B 267. See, as 
 to action for not delivering abstract of title. Steer v. Crowley, U C. B. ^. b. 
 337 • 32 L. J. C. P. 191 : Gray v. Folder, L. R. 8 Ex. 249 ; 42 L. J. (4. B. 
 
 Ex 161 
 
 (m) WilUimis V. Glcnton, L. R. 1 Cb. at p. 209 ; 35 L. J. Cb. at p. 288.
 
 204 
 
 SALE OF LAND. 
 
 Express 
 ap^-eement to 
 convey not- 
 withstanding 
 defect of title. 
 
 Loss of bar- 
 gain. 
 
 Liquiflated 
 damages. 
 
 means of the sheriff, but was not bound to do so. The vendor 
 was bound to do so in order to satisfy his contract with the 
 purchaser. This being so, if the purchaser elected to accept 
 perfoi'mance, he was entitled to compensation. The compen- 
 sation was really damages, and the measure of damages was the 
 value of the possession of the premises between the time when 
 it ought to have been given, and the time when it was given, 
 that is to say, the rent which the purchaser would have received 
 if the vendor had done his duty (/?). 
 
 It has also been held that the rule in Flureau v. Thornhill 
 does not apply in cases where the agreement shows upon its 
 face that the vendor has not as yet got, and therefore possibly 
 may never get, the title which he undertakes to convey ; yet 
 he expressly undertakes at once, or on a given date, to put the 
 purchaser in possession ; and the purchaser, in consideration of 
 such agreement, undertakes to do, and does, something which 
 cannot be undone, and which is of permanent benefit to the 
 vendor ; for the very nature of the undertaking, on both sides, 
 shows that it is not dependent on the contingency of a good 
 title being made out. In such a case the damages for breach 
 of agreement will not be merely nominal. The purchaser will 
 be entitled, under the general rule of common law, to such a 
 pecuniary amount as is the difference between the present state 
 of things, and what it would have been if the contract had 
 been duly carried out (o). 
 
 Where a purchaser is entitled to damages for the loss of 
 his bargain, if the vendor has resold the estate, the price at 
 which it has been resold is prima fade evidence of the market 
 value, and the first vendee will be entitled to recover the 
 difference between it and the price which he had contracted 
 to pay {p). 
 
 It is of course competent to the parties to fix the measure of 
 damages on breach of contract ; therefore, where the plaintiff 
 agreed to lend defendant money on mortgages, and defendant 
 was to make out title within a specified time, in default of 
 
 (?i) Royal Bristol Permanent Building Society v. Bomash, 35 Ch. D. 
 390 ; 56 L. J. Ch. 840. 
 
 (o) Wall V. City of London Real Property Co., L. R. 9 Q. B. 249 ; 43 L. J. 
 Q. B. 75. 
 
 (p) Engel v. Fitch, L. R. 4 Q. B. at p. 667 ; 38 L. J. Q. B. at p. 306 ; in 
 Ex. Ch. Godwin v. Francis, L. R. 5 C. P. 295 ; 39 L. J. C. P. 121.
 
 BREACH OF CONTRACT TO CONVEY. 205 
 
 which the agreement should on the part of the plaintiff, if he 
 thought proper, be utterly void ; and it was further agreed 
 " that the defendant should pay to the plaintiff all costs and 
 charges incurred by him or them in investigating the title to 
 the said premises, and of any deeds or other instruments which 
 might have been prepared in consequence of the said agree- 
 ment, if the same should have been prepared at the desire of 
 the defendant." It was held that the plaintiff could set up no 
 claim for interest on money which lay idle in his hands for 
 several months, before the treaty finally failed, though he had 
 informed plaintiff of this fact, without however making any 
 stipulation as to interest {q). 
 
 A purchaser is not bound to accept a doubtful title (r), even Doubtful title. 
 with an indemnity {s) ; and where the vendor does not show a 
 clear title by the day specified, the purchaser may rescind the 
 contract and recover back his money, without waiting to see 
 whether the seher may ultimately be able to establish his title 
 or not (t), even in a case where on such title l)eing finally made 
 out, a Court of Equity would compel the vendee to accept the 
 estate and pay the money iji). 
 
 Where, however, the purchaser has been let into possession 
 of the land, so that the parties cannot be replaced in statu quo, 
 he cannot rescind the contract, and sue for his deposit as money 
 had and received. His remedy is on the contract (x). 
 
 In a suit for specific performance damages were not awarded Damages for 
 under 21 & 22 Vict. c. 27, s. 2 (y) for the vendor's delay in vendor's delay, 
 completing his contract, where it was a case of fee simple 
 property, nor unless there had been special damage, as from 
 destruction of the property in the meantime, or from eflElaxion 
 of time in a short lease (2). Nor could a plaintiff ab the same 
 time obtain an order to rescind an agreement for sale, and 
 claim damages for the breach of the agreement {a). 
 
 (q) Swcctland v. Smith, 1 C. & M. 585. 
 
 (r) Hartley v. PchaV , Peake, N. P. C. 178 : Wilde v. Fort, 4 Taunt. 334 : 
 Jeakcs v. White, 6 Exch. 873 : Penniall v. Ilarhonu, 11 Q. B. 368. 
 
 (s) Blake V. Phinn, 3 C. B. 976. 
 
 \t) Wilde V. Fort, 4 Taunt. 334. 
 
 (m) Ibid. 334: jjer Lord EUeiiborough, Seaward v. 11 dloek, 5_Jiast, 208. 
 
 (x) Hunt V. Silk, 5 East, 449 : Blackburn v. Smith, 2 Excli. 783. 
 
 (;/^ This Act, commonly called Lord Cairns' Act, is now repealed, and 
 is superseded by the new Rules of 1S83. See j>os<,^ c. xxi. 
 
 (z) Chinnock v. Marchioness of Ely, 34 L. J. Ch. 399. 
 
 (a) Henty v. Schroder, 12 Ch. D. 666 ; 48 L. J. Ch. 792.
 
 206 
 
 SALE OF LAND. 
 
 Actions for 
 refusal to 
 complete pur- 
 chase of land. 
 
 Damages be- 
 yond deposit. 
 
 2. Actions against tlie vendee of land by the vendor for 
 refnsal to complete his contract, stand on exactly the same 
 footing as actions for not accepting goods (&). In one case 
 the plaintiff in an action of this sort seems to have recovered 
 the whole pnrchase money (c). But it is now decided that that 
 is not the correct rule. " The plaintiff cannot have the land 
 and its value too." 
 
 "The measure of damages is the injmy sustained by the 
 plaintiff by reason of the defendants not having performed 
 their contract. The question is, how much worse is the 
 plaintiff by the diminution in the value of the land, or the loss 
 of the purchase money, in consequence of the non-performance 
 of the contract " (d) ? Accordingly, where defendants had been 
 put into possession of land under an agreement to purchase, 
 and had taken from it a quantity of brick clay, the damage was 
 held to be the interest on the purchase money up to the com- 
 mencement of the action, and the value of the clay (e). The 
 usual conditions of sale by auction arc, that if the vendee fail 
 to complete the purchase, the vendor may sell, and the vendee 
 shall pay expenses of resale, and make good the deficiency of 
 price, if any (/). And the same principle will be applied, even 
 without any express stipulation. Accordingly, where the pur- 
 chaser declined to accept land on account of an objection to 
 title, which was held to be bad, and the vendor sold again for 
 a lower sum ; it was held that he was entitled to recover as 
 damages the difference between the price contracted for, and 
 that which he ultimately received {g). 
 
 Where a contract for sale contained the following stipula- 
 tion : " Lastly, if the purchaser shall neglect or fail to comply 
 with any of the above conditions, the deposit shall be forfeited 
 as hquidated damages to be retained by the vendors." Held 
 that this applied only to a breach of the conditions of sale, but 
 not to a breach of the entire contract to buy, and that on a 
 
 (6) 7 M. k W. 478. A railwav company which, after giving a statutory 
 notice of intention to talie lands, fails to take tlie necessary steps for assessing 
 the compensation, is responsible for damage sustained by the owner : Morgan, 
 V. Metropolitan Ry. Co., L. R. 3 C. P. 553 ; 37 L. J. C. P. 265. 
 
 (c) Uaivkins v. Kemp, 3 East, 410. 
 
 {d) Laird v. Plm, 7 JI. & W. 474. 
 
 (e) Ibid. 
 
 (/) Ex parte Hunter, 6 Ves. 94. 
 
 {g) Noble v. Edwardes, 5 Cb. D. 378 : reversed on another point at p. 392.
 
 BREACH OF CONTRACT TO CONVEY. 207 
 
 wrongful abandonment of the purchase the vendor might re- 
 cover damages beyond the amount of deposit ; as, for instance, 
 the auctioneer's charges for the abortive sale, and the costs 
 incurred by him in preparing to complete the sale (It). 
 
 Where parties contract, as they frequently do by a condition Forfeiture of 
 of sale, that the deposit money shall be forfeited if the pur- ^^po^^*- 
 chaser fail to carry out his contract, the deposit cannot, nor 
 can any part of it, be recovered back on the ground that the 
 forfeiture was in the nature of a penalty, and the actual loss to 
 the vendee was less than the amount of the deposit {i). In 
 fact, the cases distinguishing between a penalty and liquidated 
 damages do not apply to a pecuniary deposit, which is in reality 
 not a pledge, but a payment in part of the purchase money, 
 made as a guarantee that the contract will be performed {Ic). 
 It results from this that if the seller seeks to recover damages 
 beyond the amount of the deposit, he must give credit for the 
 deposit which he has retained. Therefore, where a contract 
 for sale contained a condition that if the purchaser should 
 fail to comply with the conditions, the deposit should be 
 forfeited to the vendor, who should be at liberty to resell, and 
 any deficiency upon resale, together with the expenses, should 
 be made good by the defaulter, and on non-payment should be 
 recoverable as liquidated damages, but that any increase of 
 price at the second sale should belong to the vendor ; it was 
 held that, in estimating the loss on a resale, the deposit, 
 although forfeited, was to be taken into account as diminishing 
 the deficiency (/). 
 
 Similar principles would be applied to an agreement for a ^^Sj-eemeDt 
 lease. The owner of houses agreed with H. to grant him a 
 lease of certain premises for ten years, at an annual rent of 
 500?. At the end of one year H. became bankrupt, and his 
 trustee under the liquidation disclaimed the agreement. It 
 was held that the lessors might prove their claim under s. 23 
 of the Bankruptcy Act, 18G9, and that the measure of the 
 injury sustained was the difference between the rent to be paid 
 
 (h) Icely V. Grew, 6 Nev. & M. 467 : Essex v. Danidl, L. R. 10 C. P. 53S. 
 
 {i) Hinton V. Sparlces, L. R. 3 C. P. 161 ; 37 L. J. C. P. 81, ante, p. 150. 
 
 ik) Sutrd. Yen. & Pur. c. 1, s. iii. § 18, p. 40, 13tli ed. : Uovx v. Smith, 
 27 Ch. d! 89 ; 53 L. J. Ch. 1055 : Sopcr v. Arnold, 14 App. Ca. 429 ; 59 
 L. J. Ch. 214. 
 
 [1) Ockenden v. Henly, E. B. & E. 485 ; 27 L. J. Q. B. 361.
 
 208 
 
 COVENANTS FOR TITLE. 
 
 Damages on 
 covenants for 
 title and 
 against in- 
 cumbrances. 
 
 "Where some- 
 thing bas 
 jjassed to the 
 plaintitf by 
 the grant. 
 
 under the agreement, and what they could now obtain for the 
 property (m). 
 
 3. Analogous to the case of warranties in sale of chattels, are 
 the various covenants, for title, authority to convey, quiet enjoy- 
 ment, and against incumbrances which are usual upon transfers 
 of real property. 
 
 The cases upon this point in England are very scanty, while 
 they are to be found in remarkable abundance in America. It 
 is to be regretted that the multiplication of courts of inde- 
 pendent jurisdiction in that country should make their decisions 
 often a source of embarrassment, rather than an assistance in 
 legal investigation. 
 
 Actions may be brought for breach of the covenant for title, 
 and authority to convey, before any eviction or disturbance 
 of the plaintiff has taken place (n). What ought to be the 
 amount of damages under such circumstances ? 
 
 It is plain that the conveyance may, notwithstanding the 
 defect of title, pass something to the covenantee, or it may, 
 in fact, pass nothing at all. The former state of facts occurred 
 in a very old case. " B. covenants that he was seized of 
 Bl'acre in fee simple, when in truth it was copyliold land 
 in fee, according to the custom. By the Court. The cove- 
 nant is broken (o). And the jury shall give damages, in 
 their consciences, according to that rate, that the country 
 values fee simple land, more than copyhold land " (p). This 
 is exactly the same rule as we have seen before in the case 
 of warranty of chattels personal ; namely, that the measure 
 of damages is the dilfcrence between the value of the thing 
 as it is, and its value as it was warranted to be (q). And so 
 in a case in New York, where on a similar covenant, it 
 turned out that the grantors had the fee in two-sixths of the 
 premises, and a life estate in the remainder, the Court said, 
 " There is no settled rule of law to ascertain the damao-es in 
 
 (m) Ex parte Lynvi Coal d: Iron Co., In re Hide, L. R. 7 Ch. 28 ; 41 L. J. 
 Bank. 5 : Foster v. Wheeler, 38 Ch. D. 130 ; 57 L. J. Ch. 871. 
 
 («) Khujdon v. Nottle, 4 M. & S. 53 : Ex parte Elmes, 33 L. J. Bank. 23. 
 As to what is a breach of such a covenant, see Howard v. Maitland, 11 
 Q. B. D. 695. 
 
 (o) Not hrolcen, in the original, but clearly by a misprint. 
 
 (jp) Gray v. Briscoe, Noy, 142. 
 
 {q) Ante, p. 191.
 
 COVENANTS FOR TITLE. 201) 
 
 such a case without having a jury to assess them, as they 
 must depend principally upon the value of the estate during 
 the lives of the defendants, which must be deducted from 
 four-sixths of the consideration money. Nor ought interest 
 to be allowed during their lives ; for no one during that time 
 will have a right to turn the plaintiff out of possession, or call 
 upon him for the mesne profits " (r). On the other hand, when nothing 
 the defect in the title may be so complete as to pass nothing '''"^^ passed. 
 froin the grantor to the grantee. In such a case, in Massa- 
 chusetts, it was said, " The rule for assessing the damages 
 arising from this breach is very clear. No land passing by 
 the defendant's deed to the plaintiff, he has lost no land by 
 the breach of the covenant : he has lost only the consideration 
 he paid for it. This he is entitled to recover back, with inte- 
 rest to this time " (.s). And it has been stated by Patteson, J., 
 that where a mortgage is made with covenant for title, the 
 measure of damages, in case of breach of the covenant, is the 
 original debt (/). 
 
 "Where the plaintiff has never got into possession of the when posses- 
 land, and in consequence of the want of title never can, the sion never 
 
 . , obtained. 
 
 above is clearly the proper measure for damages. The action 
 
 on the covenant then comes in place of an action for money 
 
 had and received, on failure of consideration («). But it may 
 
 be doubted whether the same rule would hold good, as a 
 
 matter of law, where the plaintiff has got into possession, and 
 
 in fact continued so still. A case may be easily imagined, Wlien plaintiir 
 
 and indeed constantly occurs, in which there is such a defect ^* ^'^ posses- 
 
 *' ' sion. 
 
 in the title as makes it strictly unsaleable, though there is 
 little or no chance of the occupant ever being turned out. In 
 such a case it would not be fair to allow the whole purchase- 
 money to be recovered. The vendor has not given a saleable 
 title as he engaged ; but he has given up his own possessory 
 title, which was worth something to him, and is worth some- 
 thing to the purchaser. It is clear that if he were forced to 
 refund the entire purchase-money, the estate would not revert 
 to him, because, as against him, the title would still be in his 
 
 (r) Guthrie v. Pagsley, 12 Johnson's Rep. 126. 
 (s) Bicl-furd v. Page, 2 Mass. 455, 461. 
 (0 4 Q.'B. 395. 
 [u) Bahcr v. Harris, 9 A. & E. 532. 
 
 M.D.
 
 210 
 
 COVENANT FOR QUIET ENJOYMENT. 
 
 Covenant for 
 quiet enjoy- 
 ment. 
 
 vendee. The covenant, it ^vill be observed, is a continuing 
 one (x) ; and, therefore, may be sued upon from time to time 
 according as fresh damage arises (ij). The fair rule then would 
 be to give the plaintiflP such damages as will compensate him 
 for the defective quality of his title. This was the course 
 adopted in the case last cited, where the special damage laid 
 was, that the lands were thereby of less value 1:0 the owner, 
 and that he was hindered from selling them so advantageously. 
 And so in an American case, where it appeared that there was 
 an outstanding paramount title, which the plaintiff had pur- 
 chased in, having been all the time in possession, it was held 
 that he was not entitled to recover the whole consideration 
 money with interest, but only the amount paid to perfect the 
 title, with interest from the time of payment (z). It may be 
 questioned, too, whether interest on the purchase-money 
 ought in any case to be allowed, where the plaintiff has had 
 a beneficial possession. The profits received from the land 
 ought to be assumed to be an equivalent for the outlay of his 
 money (a). It would be different where the land had been taken 
 for some use which could produce no return until a distant 
 period, which had not arrived ; as, for instance, where the 
 purchase was of building lots or unreclaimed land. Where the 
 plaintiff has always been in possession, and his title has since 
 been perfected, without any expense on his part, nominal 
 damages only can be recovered in the absence of special loss ; 
 as, for instance, where the grantor, having conveyed without 
 title, sulisequently acquired a title, which was held to enure to 
 the grantee by estoppel (b). 
 
 A breach of the covenant for quiet enjoyment cannot occur 
 till the plaintiff has actually been dispossessed or otherwise dis- 
 turbed (c). Cases of this sort present less difiiculty than the 
 
 (x) Kingdon v. Nottle, 4 M. k S. 53. 
 
 ly) Ante, pp. 102, et seq. 
 
 (e) Sjjrinrf v. Chase, 22 Maine, 505 : Brandt v. Foster, T, Iowa, 287 : 
 Fawcett v. Woods, ib. 400. The vendee cannot, however, swell his damages 
 beyond the amount of the consideration paid to the vendor by purchasing the 
 paramount title : Cox v. Henry, 32 Penn. IS. 
 
 (a) Cox V. Henry, 32 Penn. 18. 
 
 (6) Baxter v. Bradbury, 20 Maine, 260. And see Noder v. Hunt, 18 
 Iowa, 212. 
 
 (c) See as to what are breaches of this covenant : Sanderson v. Mayor of 
 Berwick, 13 Q. B. D. 547 ; 53 L. J. Q. B. 559 : Jenkins v. Jackson, 40 Ch.
 
 COVENANT FOR QUIET ENJOYMENT. 211 
 
 preceding in one respect, viz., that the nature of the damages 
 
 is in sreneral no Ioniser hypothetical, but ascertained. Where Damages on 
 
 eviction 
 
 the plaintiff, who was lessee of a term, was evicted, it was held 
 that in actions on the covenant for title, or quiet enjoyment, the 
 measure of damage was the value of the unexpired part of the 
 term, and the amount of any damages recovered against the 
 plaintiff by the ejector as mesne profits without interest (d). 
 And where an action is brought against the occupier by a 
 person with superior title, and the former compromises by 
 paying money, he is entitled in an action upon the covenant 
 ibr title to recover the whole sum so paid, and his costs as 
 between attorney and client, even though he gives the cove- 
 nantor no notice of his intention to compromise. The only 
 effect of want of notice is to let in the party, who is called 
 upon for an indemnity, to show that the plaintiff has no claim 
 in respect of the alleged loss, or not to the amount alleged ; that 
 he made an improvident bargain ; and that the defendant might 
 have obtained better terms, if the opportunity had been given 
 liim (e). 
 
 A covenant for quiet enjoyment is a continuing covenant, Future 
 upon which damages may be recovered from time to time as 
 they accrue. Hence in such an action a plaintiff cannot 
 obtain i'uture unascertained damages. Where the breach of 
 covenant consisted in the fact that other persons had estab- 
 lished a right of way over the demised premises, it was held 
 that the measure of damages was not the permanent injury to 
 the land, but only the damage sustained up to the commence- 
 ment of the action (/). Jessel, M. R., said, " It has been 
 
 D. 71 : 58 L. J. Ch. 124 : RoUnson v. K'dvn-t, 41 Ch. D. 88 : 58 L. J. Cli. 
 392 : ^Harrison v. Lord Muncastcr [1891], 2 Q. B. 680 : Wcdlis v. Hands 
 [1893], 2 Ch. 75. 
 
 {d) Williams v. Burrell, 1 C. B. 402. So, where a lessor, being tenant 
 for life, with power to grant leases in possession, granted to a lessee in posses- 
 sion a reversionary lease, wliicli, on the lessor's deatli, reversioner refused to 
 ratify, the lessee recovered from the lessor's executor the premium which he 
 had paid to the lessor, and the difference in value between the term professed 
 to be granted by the lessor, and that ultimately granted by the reversioner, 
 tof^ether with the excess of the costs of the second lease over that of the void 
 lease: Lock v. Furze, 19 C. B. N. S. 96 ; 34 L. J. C. P. 201 ; affirmed in 
 Ex Ch L R. 1 C. P. 441 ; 35 L. J. C. P. 141 : Jenkins v. Jones, 9 Q. B. D. 
 128; 51 L. J. Q. B. 438 : Hentii v. Wray, 19 Ch. D. 492 ; 51 L. J. Ch. 
 422 ; reversed on another point, 21 Ch. D. 332. 
 
 (e) Smith v. Compton, 3 B. & Ad. 407 : Rolpli v. Crouch, L. R. 3 Ex. 44 ; 
 37 L. J. Ex. 8. 
 
 (/) Now up to the time of their assessment, Ord. 36, R. 58, ante, p. 10/. 
 
 P 2 
 
 damage.
 
 212 COVENANT FOR QUIET ENJOYMENT. 
 
 held that where there has been eviction, so that you can never 
 have another action under the covenant for quiet enjoyment, 
 but are evicted for ever, there, of course, the damages must 
 be assessed once for alL But where there has been no eviction, 
 the damages are only the damages actually sustained ; because 
 you cannot tell Avhat may happen in the future, or how far 
 persons who have a right to interfere and disturb the quiet 
 enjoyment may choose to avail themselves of that right, or 
 whether they will interfere at all. That being so, the evidence 
 ought to have been directed to show that some actual damage 
 had been sustained by the plaintiff" by reason of the interference 
 of the Stennings by the exercise of their right of way before 
 the issuing of the writ " (^). 
 :iioae of calcu- Of course the rule stated above, as to the damages being- 
 kting value "t ^■^^ value of the unexpired part of the term, would apply 
 equally where the estate was of a nature higher than a chattel 
 interest. If it were held in fee, the damages would be the 
 entire value of the estate. And then arises the question, how 
 is this value to be calculated ? Is it to be the value at the 
 time of conveyance, or at the time of eviction ? There is little 
 authority upon this point in England, but it has formed the 
 subject of frequent discussion in America (J/). 
 ■when it lias Land may have obtained an increased value since the time 
 
 of the conveyance, either from intrinsic circumstances affect- 
 ing it, or from improvements made upon it by the purchaser. 
 In New York, and some other states, it was early decided that 
 the measure of damages in case of eviction, when the pur- 
 chaser derived no benefit from the property, owing to the 
 defective title, was the sum paid, with interest from the time 
 of payment, and the costs of ejectment (?). Kent, C. J., said ; 
 "Upon the sale of lands, the purchaser usually examines the 
 title for himself, and in case of good faith between the parties 
 (and of such cases only I now speak), the seller discloses his 
 proofs and knowledge of the title. The want of title is there- 
 fore usually a case of mutual error, and it would be ruinous 
 and oppressive to make the seller respond for any accidental 
 or extraordinary rise in the value of the land. Still more 
 
 (g) Child V. Sfenmnq. 11 Ch. D. 82 ; 48 L. J. Cli. 392. 
 (h) See Sedg. Dam. 1.59, p. 321 et scq. 7th ed. 
 (i) Staats v. Ten Eyck's Exrs.^ 3 Caines, 111 (/). 
 
 increased.
 
 COVENANTS FOR TITLE. 213 
 
 burdensome would the rule seem to be, if that rise was owins^ 
 to the taste, fortune, or luxury of the purchaser. No man could 
 venture to sell an acre of ground to a wealthy purchaser with- 
 out the hazard of absolute ruin." The same rule was applied 
 in a later decision to the case of improvements made by the 
 owner, for which it was held that no allowance could be 
 made (Ic). And a similar doctrine was laid down where the 
 eviction was from a lease (/). These decisions seem to have 
 been founded not only on the arguments from expediency 
 which were advanced, but on the analogy of the old law in 
 the case of a warranty, upon a writ of warrantia cliartm. There 
 the rule also was, that the value should be taken at the time 
 of the conveyance, and not at the time it was recovered back 
 from the occupier {m). The law of New York upon this point 
 is followed by the states of South Carolina, Virginia, Ten- 
 nessee, and Kentucky. On the other hand, in Massachusetts 
 and Connecticut, although the purchase-money and interest is 
 held to be the proper measure of damages, in an action on the 
 covenant for title where there has been no eviction, the Courts 
 have decided that where there has been an eviction, the value 
 of the land is to be estimated as it was at that time (/«). And 
 so in a case before Knight Bruce, V.-C, in 1850, where a 
 father had settled an estate upon the marriage of his son, and 
 covenanted with the trustees that he was seised in fee, whereas 
 he was but tenant for life, in estimating the damages for the 
 breach of covenant, the value of the estate was taken at the 
 death of the settlor (o). 
 
 I conceive that the doctrine laid down by Kent, C. J., is Increase in 
 clearly the equitable rule, where the improvements arise from 
 causes of an entirely collateral nature, such as the growth of a 
 town, the formation of a railway, or the like. The occupier 
 has had all the benefit of this increased value, so long as it 
 lasted, without paying anything for it. Even supposing that 
 he had sold again after the land had risen in value, and been 
 forced to pay back to his purchaser according to that additional 
 
 (k) Pitcher v. Livingston, 4 Johnson's Rep. 1. 
 [l) Kinney v. Watts, 14 Wend. 38. 
 (m) 6 Ed. II. 187. 
 
 (h) Gore v. Brazier, 3 Mass. 523, 543 : Caswell v. Wendell, 4 Mass. 108 : 
 Jlorsford v. Wright, Kirby, 3. 
 
 (o) Wace V. Bickerton, 3 D. G. & S. 751. See at p. 756.
 
 214 COVENANTS FOR TITLE. 
 
 value, still he would be only repaying money which he had 
 actually received, and no more {p). 
 Outlay of But the same obvious equity seems by no means to exist 
 
 capital. ^^YiQw the additional value arises from the outlay of the plain- 
 
 tiff's own capital upon the land. No doubt cases might be 
 put in which a claim for damages on this account would l)e 
 clearly inadmissible ; as, for instance, if a person bought a moor 
 (ir a mountain for shooting over, and chose to reclaim the one, 
 ur build a mansion with pleasure grounds upon the other. But 
 suppose he purchased building ground at so much per foot in 
 London or Manchester for the express object of building, ought 
 he not to be repaid for money laid out in this way, the benefit 
 of which is seized by a stranger ? In this case, the damage 
 incurred is the direct result of the breach of contract, and a 
 result which must have been contemplated by the party entering 
 into the covenant {q). Probably this will be found- to be the 
 true ground of distinction, and that every case must be decided 
 upon its own merits, according as the improvements were the 
 lair consequence of the contract of sale or not. 
 Damages in AVhere there has been an eviction of part of the land sold, 
 
 case of e\ac- ^.j^^ mo([Q in which damages are to be assessed will vary accord- 
 
 tioii iioni part •- t • i i u 
 
 of tlie laiul. iiig as the failure of title takes place as to an undivided snare 
 of the land, or as to an ascertained portion of it. In the former 
 case, the vendor must refund an aliquot part of the purchase- 
 money, according to the fractional part lost by the purchaser. 
 In the latter case, evidence may be given of the quality of the 
 specific piece from which the plaintiff has been ejected, and 
 the law will apportion the damages to the measure of value 
 
 (p) But in LocJcv. Furze, ante, p. 211, the plaintiff really recovered damages 
 for a rise in the value of the land. 
 
 (q) Accordingly, in equity, a purchaser of building land has had allowed to 
 liim the amount expended in erecting houses : Bu7ini/v. Jlopkitison, 27 Beav. 
 r,65 ; '29 L. J. Ch. 93. In Jiolph v. Crouch, L. R. 3 E.x. 44 ; 37 L. J. Ex. 8, 
 the lessee, a florist, recovered the value of his conservatory. And in America, 
 tenant's imijrovements rendering the land more productive, have been allowed : 
 llkkctts v. Lostctter, 19 Ind. 125 ; and the costs of paving in front of building 
 lots : Hale v. City of New Orleans, IS Louisiana (Ann.), 321. In an action 
 for breach of a covenant for quiet enjoyment, it appeared that the plaintiff had 
 erected buildings upon the laud and converted it into pleasure grounds, and he 
 claimed damages for the ex2:)ense he had incurred in so doing. Dallas, C. J., 
 said, " I very much doubt whether in any case a plaintiff can recover for the 
 improvements and buildings he may choose to make and erect upon the lands." 
 The point, however, was not decided : Lewis v. CampbcU, 8 Taunt. 727.
 
 COVENANT FOR QUIET ENJOYMENT. 
 
 215 
 
 between the land lost and the land preserved (;•). Where the 
 land is only held on lease, and there is a partial eviction by 
 title paramount, the rent will bo apportioned (s). The damages 
 then onght, according to the principle laid down before (/), to 
 be the value of the part evicted for the unexpired portion of 
 the term ; that is the difference between the rent which would 
 have been paid, and the profits which would have been made. 
 Where, however, the eviction is by the lessor himself, or any 
 one claiming through him, there is no ajiportionment, but a 
 complete suspension of all subsequently accruing rent (u). 
 Would this make any difference in the claim for damage ? 
 
 Where the damages are to be calculated upon the basis of Deed is con 
 the purchase-money, its amount, if stated in the deed of con- 
 veyance, cannot be contradicted by parol evidence. " Where 
 any consideration is mentioned, if it is not said also, ' and for 
 other considerations,' you cannot enter into any proof of any 
 other : the reason is because it would be contrary to the deed ; 
 for when the deed says it is in consideration of such a par- 
 ticular thing, that imports the whole consideration, and is 
 negative to any other " (x). On the same principle, evidence 
 cannot be given that it was really smaller than is stated, or 
 that it was never paid at all (y). One case may seem con- 
 tradictory, but is really not so. A deed containing a general 
 release of all debts, recited that the releasee had previously 
 agreed to pay to the releasor the sum of 40?., and that " in 
 consideration of the said sum of 40/. being now so paid as 
 hereinbefore is mentioned," and also in consideration of certain 
 other payments to him and J. S., " the receipts of which said 
 several sums they did hereby acknowledge," he the plaintiff 
 
 elusive as to 
 amount of 
 purchase- 
 money. 
 
 (r) Pei- Kent, C. J., Morris v. FJuips, 5 Johnson's Rep. 49, 55 : Brandt v. 
 Foster, 5 Clarke, Iowa, 287. In one case in America, for the purpose of re- 
 ducing the damages to a nominal sum, parol evidence was admitted to show 
 tliat nothing was in fact paid for the specific piece, and that it was included 
 in the conveyance by mistalce : Nutting v. Herbert, 35 New Hamp;?. 120. 
 
 (s) iSmith V. Malings, Cro. Jac. 160 : Stevenson v. Lambard, 2 East, 575 : 
 lioodlc V. Cambell, 7 M. & Ur. 386. 
 
 («) Williams \. BurrcU, 1 C. B. 402, ante, p. 211. 
 
 {u) Morrison t. ChadwicJi, 7 C. B. 266. 
 
 {x) Per Lord Hardwicke, Peacock v. Monk, 1 Ves. Sen. 128. 
 
 (y) Rowntree v. Jacob, 2 Taunt. 141 : Baker v. Dewey, 1 B. & C. 704. 
 But in equity a recital that purchase-money has been paid may be shown to be 
 not true : Wilson v. Keating, 4 De Gex & J. 588 ; 27 Beav. 121 ; 28 L. J. 
 Ch. 895.
 
 •21G 
 
 COVENANT AGAINST INCUMBRANCES. 
 
 Eflect of cove- 
 nant for quiet 
 enjoyment. 
 
 Covenant for 
 further assur- 
 ance. 
 
 Covenant 
 against in- 
 cumbrances. 
 
 releases tlie defendant from all demands, &c. ; the action was 
 for the 40/. which it was proved had never been paid. It 
 was held that the words of the deed formed no estoppel, as 
 the general words of the release were qualified by the recital, 
 and that the sentence ought to be read, " In consideration f 
 the sum of 40/. being now so agreed to be paid as aforesaid ; " 
 while the subsequent words of receipt referred more properly 
 to the payments which were to be made to the releasor and 
 J. S. (.). 
 
 It must be remembered that a covenant for quiet enjoyment 
 is only a covenant to secure title and possession. It does not 
 guarantee the tenant that he may lawfully use the land for any 
 jDurpose. And even though there is a covenant restricting him 
 from using the land for certain specified purposes, this does not 
 amount to a guarantee that he may use it for all other purposes. 
 Defendant became assignee of a sub-lease which contained a 
 covenant for quiet enjoyment by the sub-lessor, and a covenant 
 hj the sub-lessee that he would not use the premises for certain 
 defined purposes, of which the trade in beer was not one. He 
 was ignorant that the original lease contained a covenant 
 against selling beer. The original lessor obtained an injunc- 
 tion against his continuing the beer tra-de. It was held that 
 this was no breach of any covenant, express or implied, 
 between the sub-lessor and sub-lessee. The injunction did 
 not interfere with his title or possession, but only Avith a par- 
 ticular mode of enjoying the land, in which he had never been 
 guaranteed (a). 
 
 In the case of a covenant for further assurance the whole 
 value cannot be recovered till the ultimate damage is sustained. 
 And if no damage is suffered in the lifetime of the ancestor, 
 the action must be brought by the heir and not by the 
 executor {b). 
 
 The last species of covenant we shall notice under this head 
 is the covenant against incumbrances. ' There seems to be no 
 difference in principle between a covenant against incum- 
 brances, and a covenant to pay them off. If so, the point is 
 decided in England. The action was bv the trustees of the 
 
 (2) Lampon v. Corie, 5 B. & A. 606. 
 
 (a) Bennett v. Athcrton, L. R. 7 Q. B. 316 
 
 {h) King v. Jones, 5 Taunt. 418, 428. 
 
 41 L. J. Q. B. 165.
 
 COVENANT AGAINST INCUMBRANCES. 217 
 
 defendant's wife on a covenant to pay off incumbrances to the 
 amount of 19,000/. They had paid nothing themselves, and 
 no special damage was laid or proved ; it was held that the 
 full amount of the incumbrances might be recovered. Lord 
 Tenterden, G. J., said, " If the plaintiffs are only to recover 
 ii shilling damages, the covenant becomes of no value." And 
 Patteson, J., said, " At law the trustees were entitled to have 
 the estate unincumbered ; how could that be enforced, unless 
 they could recover the whole amount of the incumbrances in 
 an action on the covenant ? " (c). The rule in America is 
 different. There it is held that the damages are merely 
 iiominal, unless the plaintiif has paid something to their 
 discharge (d). But that when he has extinguished the incum- 
 brances he is entitled to an indemnity (e). 
 
 I conceive that the rule laid down by the Court of King's Principle of 
 Bench is the true one. The damages are not, aa Mr. Sedgwick \^l^^^^ 
 seems to suppose, given in respect of a future contingent loss. 
 They are the proper compensation for an actual and existing 
 loss. The question is, how much is tlie value of the estate 
 diminished at the moment by the existence of the incum- 
 brances ? If interest has to be paid upon them, there is a 
 clear loss of annual profit ; but suppose the interest is provided 
 for elsewhere, and the estate is merely an ultimate security, 
 still the owner is damnified to the full amount of the incum- 
 brances, if he should wish to sell the estate, to mortgage it, to 
 settle it, or to charge portions upon it. True, he may not 
 want to do any of these things at present, but as soon as he 
 does want to do them, he will undoubtedly fail. It is no satis- 
 faction to a man who has to break off a match, for instance, 
 because he cannot effect a settlement, to be told that he may 
 now bring an action, and obtain substantial damages. Nor is 
 it any answer to say that he may himself pay off the incum- 
 brance, and then sue ; because very likely he may have no 
 
 (c) Lethhridge v. Mytton, 2 B. & Ad. 772. 
 
 {d) Prescott v. Truman, 4 Mass. 627 : Grant v. Tallmav, 20 N. Y. 191. 
 But where the representation that the property was unincumbered was made 
 fraudulently, the amount of the mortgage was recovered : Ilaight v. Ilayt, 
 19 N. Y. 464. 
 
 (e) JJelavergne v. Norris, 7 .Tohnson's Rep. 358 : Ball v. Dean, 13 John- 
 son's Rep. 105. Cases where the grantee has been actually evicted in conse- 
 quence of the brea'-,h of covenant, of course come under different rules. See 
 all the cases, Sedg. Dam. 178—183, pp. 352—365, 7th ed.
 
 218 
 
 i:mpliei) covenants. 
 
 Contingent in- 
 cumbrance. 
 
 Covenant to 
 xenew. 
 
 ready money, and be nnable to borrow any, on account of the 
 incumbered condition of his estate ; in short, the American 
 doctrine converts a covenant to pay off" incumbrances into a 
 covenant of indemnity against incumbrances, which it is 
 apprehended is a very different thing. 
 
 Where, however, an action is brought on a covenant against 
 incumbrances, and the incumbrance is not necessary, but only 
 a contingent one, which may never occur, the damages wih be 
 nominal (/). 
 
 And where both present and contingent loss are negatived, 
 the damages will obviously be only nominal ; for instance, when 
 at the time of trial the incumbrance has ceased to exist, and 
 its removal has caused no expense to the plaintiff (//). 
 
 The amount of damage recoverable for a breach of covenant 
 to renew was much discussed in a case in Ireland (h). The 
 covenant was treated as not involving a contract that the re- 
 newal would confer a good title (i), and it followed as a 
 irjcessary consequence that the value of the renewal, for with- 
 holding which damages were to be assessed, depended partly 
 on the value of the land and partly on the title of the lessor. 
 It was considered that if the lessor had no title or estate out 
 of which a valid renewal could have been carved, the lessee lost 
 nothing by the non-renewal, for under such circumstances a 
 renewal would have been valueless {Ic). The same decision 
 was given in a recent case, where the covenant to renew at a 
 specified rent was granted by a lessor who was only empowered 
 to lease at the best rent obtainable. When the time for 
 renewal arrived, the rent specified in the covenant was far 
 below the best rent. It was held that the covenant was good 
 when it Avas made, but that it could not be carried out for 
 want of title when the time arrived. Therefore, that it could 
 not be specifically enforced, and that no damages could bo 
 awarded for its breach (I). 
 
 (/) Fane V. Lord Barnard, Gilb. Eq. Rep. 7. 
 
 (;/) Ilcrrich v. Moore, 19 Maine, 313 : Smith v. Jefts, 44 New Hamps. 482. 
 
 (A) Strong v. Kean, 13 Ir. L. R. 93, Ex. Ch. 
 
 (i) lb., 2)er Pigott, C. B., at p. 146. 
 
 (k) Strou'j V. Kean, 13 Ir. L. R. 93, Ex. Ch. ; and see ^)e?- Crampton, J. 
 .it p. 128. 
 
 (Z) Gas Liqht and Coke Co. v. Towse, 35 Ch. D. 519 ; 56 L. J. Ch. 889 ; 
 following Bain v. Fothergill, L. R. 7 H. L. 158, ante, p. 200.
 
 IMrLIED COVENANTS. 219 
 
 Where a house is let furnished, for immediate occupation, Fitness for 
 there is an impKed covenant that the liouse is reasonably fit 
 for habitation, so that the intending tenant can safely enter 
 into his tenancy on the day on which the tenancy begins. 
 Where this condition is not complied with, the tenant is at 
 liberty to rescind the contract at once. But if he does not 
 choose to do so, he would be entitled to recover damages for 
 the inconvenience and loss he was put to ; for instance, the 
 expense of remedying the defect complained of, the cost of 
 removing to a hotel and living there while the house was being 
 made habitable, and the like (m). And so where persons are 
 admitted into a l)uilding on payment, there is an implied 
 Avarranty that the building is safe {n). 
 
 Finally, it may be remarked, that as the damages for breach Change of cir- 
 of any covenant are measured by the actual loss or incon- ^"™'' ances. 
 venience which the plaintiff has been put to by the breach, 
 this loss or inconvenience may from time to time vary or dis- 
 appear. If by lapse of time, change of circumstances, or from 
 any other cause, the covenant has ceased to operate, or has 
 wholly or in part lost its beneficial character, or if its breach 
 has been acquiesced in to a degree short of that which would 
 bar an action, a breach may come to be measured by A^ery 
 small, or by merely nominal damages (o). 
 
 {m) Wilson \. Finch Hatton, 2 Ex. D. 336 ; 46 L. J. Ex. 489. 
 
 in) Francis v. Cockrell, L. R. 5 Q. li. 184, 501 ; 39 L. J. Q. B. 113, 
 291. 
 
 (o) WigsellY. School for Indigent Blind, 8 Q. B. D. 357 ; 51 L. J. Q. B. 
 330 : Sai/ers v. Colh/cr, 24 Cli. D. 180 ; 52 L. J. Ch. 770 : affd. 2S Ch. D. 
 103 ; 54'L. J. Cb. 1.
 
 CHAPTER VI. 
 
 1. Work and lahour. 
 
 2. Contracts of hiring and service. 
 
 Extras. 
 
 Deviations. 
 
 Xext to contracts of sale, probably the most common species 
 of contract is that by which the labour of others is purchased 
 for a limited time. Agreements of this sort are entered into 
 W'itli a view to the performance of a particular work, or the 
 procuring of a certain amount of service, and the remuneration 
 to the other party resolves itself into the price of the work, or 
 his own wages or salary. 
 
 I. As to contracts for work and labour. 
 
 This case wih be simple enough where the work has been 
 done according to the contract. The measure of damages will 
 be the contract price if any, or the value of the thing, if no 
 price has been fixed. Where the work consists partly of work 
 done under a special contract, and partly of extras added 
 subsequently, the plaintiif may recover for the latter at once, 
 on a quantum meruit, even though the time for paying for the 
 work under the agreement has not arrived. And a quantum- 
 meruit is the only way in which such extras can be sued for, 
 unless there has been a special contract to meet them (a). In 
 such an action the original contract must be put in stamped, 
 that it may be seen what work was extra {h). Where there 
 has been a contract for a specific work at a settled price, and 
 deviations have been subsequently agreed on, the employer is 
 not liable beyond the amount stipulated, unless he was in- 
 
 (a) Rohson v. Godfrey, 1 Stark. 275. See as to the effect of special con- 
 tracts, Ranger v. G. W. Ry. Co., 5 H. L. Ca. 72 : Russell v. Sa da Ban- 
 deira, 13 C. B. N. S. 140 ; 32 L. J. C. P. 68 : Stadhard v. Lee, 3 B. & S. 
 364 ; 32 L. J. Q. B. 75. 
 
 (6) Buxton V. Cornish, 12 M. & W. 426 : but see Edie v. Kingsford, 14 
 C. B. 759 ; 23 L. J. C. P. 123.
 
 CONTRACTS FOR WORK. 221 
 
 formed that the alterations would create additional expense, or 
 unless he must necessarily have known it (c). And where the 
 plaintiflF has contracted to supply a particular article of certain 
 materials at a stated price, he cannot by making it of superior 
 materials obtain a right to an increased price ; nor can he, 
 when it has once been delivered to the defendant, force him to 
 return it on his refusal to pay such a price (d). 
 
 Where the plaintiff was employed to construct a machine, 
 by means of which he was to experiment on the best mode of 
 carrying out defendant's patent, it was held that in an action 
 for work, labour, and materials, he might recover not only the 
 cost of the machine and his own labour, but also for his 
 scientific skill, and the use of other machines necessarily kept 
 idle while the experiments were going on {o). 
 
 Interest will be recoverable under 3 & 4 ^Y. lY. c. 42 (/), 
 but not otherwise. 
 
 On the other hand, there may be a failure to carry out the 
 contract, either through the plaintiff's default, or the refusal of 
 the defendant to allow him to proceed in it. 
 
 When the contract is to do a specific piece of work, as, for Claim for pay- 
 instance, to build a house for an entire sum, there can be no i"';"l'^,!lT 
 claim for payment of any part before the Avhole is finished (//). has been 
 But where the consideration is apportionable, as when a ship- "^"'"Pleted ; 
 Wright agreed to put a ship into thorough repair, and no 
 entire sum has been agreed on, it has been held that the 
 person who is to do the work may sue for payment as the 
 benefit accrues, and recover 7?ro tanto (h). A fortiori where 
 the consideration is apportioned by the agreement, and a 
 price affixed to each item, as on a contract to deliver straw at 
 the rate of three loads in a fortnight up to the 24th June, 
 at the sum of 33s. per load (0- It may be observed that the 
 contract with the attorney is an entire one, to carry the suit 
 to its termination, and he cannot recover costs for part of a 
 
 (c) Lovelock v. King, 1 M. & Rob. 60. 
 
 (d) Wilmot V. Smit/i, 3 C. & P. 453. 
 
 (e) Grafton v. Armitage, 2 C. B. 336 : Bird v. M'Gahcij, 2 C. & K. 707. 
 (/) Seeanie, p. 164. 
 
 (g) Bees v. Lines, S C. & P. 126 : Applehy v. Myers, L. R. 2 C. P. 651 ; 
 36 L J G. P. 331, in Ex. Ch. : Anqlo-Eg. Nav. Co. v. Rennie, L. R. 10 C. 
 P. 271, 571 ; 44 L. J. C. P. 130, 292, n. 
 
 {h) Roberts v. Hardocl; 3 B. & Ad. 404. 
 
 (?) Withers v. Reynolds, 2 B. & Ad. 8 52.
 
 222 
 
 CONTRACTS FOR WORK. 
 
 or where it is 
 not in accord- 
 ance with the 
 contract. 
 
 Case in which 
 lolaintiff may 
 sue on quan- 
 tum meruit. 
 
 suit which he has abandoned, unless he has given his client 
 reasonable notice (./), or can show some satisfactory reason to 
 dispense with such notice (k) ; but if his client refuses to 
 supply him with money, he may, after notice, discontinue the 
 proceedings, and sue for the work done (/). 
 
 No action can be maintained upon a contract to do a certain 
 thing at a stated price, where the plaintiff has himself failed 
 to perform his part of the agreement. Nor can he recover 
 even for the partial benefit the defendant has received, when 
 the labour was expended upon the defendant's own property 
 so as to be inseparable from it ; as, for instance, where the 
 contract was to make three chandeliers complete for 10/. ; or 
 to cure a flock of sheep, the agreement being that the plaintiff 
 was to be paid nothing unless he cured all, which he did not 
 do {in). Here the retention of the benefit accruing from the 
 plaintiff's labour clearly raises no new implied contract to pay 
 for it, and the original contract has been broken. "Where, 
 however, the original agreement has not been performed, but 
 the plaintiff has done something which the defendant has 
 accepted and retained, dealing with it in such a manner as 
 to raise an implied contract to pay for it, the plaintiff may 
 recover the value of the partial benefit, not upon the original 
 contract, but upon a qiianfum meruit. In such a case he is 
 only entitled to recover the value of the work done, and the 
 materials supplied {a) ; and the inferiority of the work may 
 be given in evidence iu reduction of damages (o). No remu- 
 neration at all can be recovered, when no benefit has been 
 received. This may happen, either where work which might 
 
 ( ;■ ) Hams v. Oshourn, 2 C. & M. 629. 
 
 (/.) NichoUs V. Wilson, 31 M. & W. 106. 
 
 (l) Vanmndau v. Brmvnc, 9 Bingh. 402. But iu a case in the Privy 
 Council, where a decree had been made in favour of tlie appellant with costs, 
 and his solicitor declined to proceed with the taxation, apparently for want of 
 funds, the Committee directed him to proceed in tlie matter at once. Lord 
 Westbury said : " It is the duty of a solicitor, who has once undertaken a 
 cause, to carry it to a conclusion, and he cannot refuse to do that duty by 
 reason of the client not having complied with any application that may have 
 been made to him." Jan. 26, 1S70. Anon., 4 Bengal, L. R. P. C. 29. 
 
 (m) Sinclah- v. Bowles, 9 B. & C. 92 : Bates v. Hudson, 6 D. & R. 3 : 
 Munro y. Butt, 8 E. & B. 738. 
 
 (n.) Grounsdl v. Lamb, 1 M. & W. 3.52 : Lucas v. Godwin, 3 Bingh. N. C. 
 737 : Chapel v. Hickes, 2 C. & M. 214. 
 
 (o) Basten v. Butter, 7 East. 479 : Couzins v. Paddon, 2 C. M. & R. 547 ; 
 and see ajite, p. 115.
 
 CONTRACTS OF HIRING. 223 
 
 be useful has been performed unskilfully, or where work which 
 is useless for the object in view has been performed even 
 skilfully (p). 
 
 Where a party contracts to do work at a certain price, and 
 his employer afterwards does part of it, or furnishes part of the 
 materials which the former had undertaken to supply, this is 
 matter of reduction of damages, not of set-off (q). 
 
 There is nothing peculiar in an attorney's claim to recover 
 costs, except the statutory regulations as to delivering a signed 
 bill, and getting them taxed (r). 
 
 AVhere the non-performance of the contract arises, not from Damages wlicn 
 any failure on the part of the plaintiff, but from some act of pj^g^gj^^g^^ p^^.. 
 the defendant, who absolutely refuses to perform, or renders formance oi 
 himself incapable of performing his share of the contract, the *^°" ^^^ ' 
 plaintiff may rescind the contract and sue at once, on a quanhnn 
 meruit, for what he has done. This was decided in a case 
 where the plaintiff had been engaged by the defendant to write 
 a treatise on Costume and Ancient Armour, to be published in 
 the Juvenile Library, When a certain progress had been made 
 in the work, the defendants aliandoned the publication for 
 which it was intended. The declaration contained a count 
 for work and labour, upon which it was held that the plaintiff' 
 might recover on the principle stated above {s). 
 
 11. As to contracts of hiring. 
 
 No dilhculty can arise, when the action is for ^vages earned 
 by virtue of a contract which has been completely performed. 
 
 When the contract is to serve for a specified time for a when plain* iff 
 
 , . .„ , ,, , ,, has not corn- 
 
 specified sum, the plamtiff cannot recover that sum upon the pjg^g^^ ^ime 
 
 contract unless he has performed it : nor upon a quantum of service. 
 
 meruit, unless the non-performance arises from the defendant's 
 
 act ; therefore where a seaman was hired for a certain sum, 
 
 " provided he proceeds, continues, and does his duty on board 
 
 (;)) Bill V. Fcatherstonhaugh, 7 Eingh. 5G9 : Ilantlcij v. Bulicer, 6 Bingh. 
 N. C. 111. 
 
 {q) Tamer v. Diaper, 2 M. & G. 241 : Ncicton v. Forster, 12 M. & \V. 
 772. 
 
 (7-) 6 & 7 Vict. c. 73, s. 37. As to evidence in reduction of damages, see 
 ante, p. 115. 
 
 (s) Planche v. Colburn, 8 Bingh. 14. See Prickett v. Badger, 1 C. B. N. 
 S. 296 ; 20 L. .T. C. P. 33 : Inchbald v. Western, Neihjhcrry Cu^ee Co., 17 
 C. B. N. S. 733 r 3-1 L. J. C. P. 15.
 
 224 
 
 CONTRACTS OF HIEING. 
 
 Service im- 
 
 jiroperly 
 
 deteimined. 
 
 I)itt'ereiicc In 
 tweeu ;ij,'ree- 
 iiient to reta 
 in service, 
 and agree- 
 ment to pay 
 for sen'icc. 
 
 for the voyage," and he died before its arrival, it was held that 
 no wages conld be claimed either on the contract, or upon a 
 quantum meruit (t). On the same principle, where a servant 
 is dismissed for misconduct, he cannot recover any wages due 
 to him since the last pay-day (u). 
 
 '\Vhere the service has been determined before the natural 
 time, by the wrongful act of the defendant, some questions of 
 nicL'ty arise, both as to the amount that may be recovered, and 
 the mode in which it must be sued for. 
 
 In the first place, "the distinction is very important between 
 an agreement to retain and employ for a given term, and then 
 to pay for services, at the end of the term, a sum certain ; and 
 simply to pay a sum certain for services at the end of the term. 
 In the former case, the person employed has an immediate 
 remedy the moment he is dismissed without lawful cause, for a 
 breach of the contract to retain and employ, and will recover 
 an equivalent for the l)reach of the employer's contract, which 
 may be less than the stipulated wages payable at the end of the 
 term, if it happens that he has the opportunity of employing 
 his time beneficially in another way, and the employer is not 
 
 [t] Cutter V. rowcll, 6 T. R. 320, 2 Sm. L. Ca. 1. It may be remarked, 
 that the rule by which a seaman's right to wages was made contingent on the 
 earning of freight was done away with by the Merchant Shipping Act, 1854, 
 17 & 18 Vict. c. 104, s. 83. The rule never extended to the master ; 
 Hawkins V. TivtelJ, 5 E. & B. 883 ; 25 L. J. Q. B. 160. 
 
 (?/,) Eidgioayy. Jhtrifferford Market Co., 3 A. & E. 171 : Wcdshv. JFalley, 
 L. R. 9 Q. B. 367 ; 43 L. J. Q. B. 102. See, for instances of such dismissal. 
 Turner v. Robinson, 5 B. & Ad. 789 : Amor v. Fearon, 9 A. & E. 548 : 
 <foiil(l V. Webb, 4 E. & B. 933 : Boston v. Ansell, 39 Ch. D. 339. The act 
 need not involve any moral delinquency : Turner v. Mason, 14 M. &W. 112 : 
 Smith V. Thompson, 8 C. B. 44 : Jlorton v. M'Murtry, 29 L. J. Ex. 260 ; 
 and want of skill to do work undertaken justifies dismissal : Harmer v. 
 Cornelius, 5 C. B. N. S. 236 ; 28 L. J. C. P. 85. It is not necessary for the 
 master to tell the servant the grounds of his dismissal : Baillie v. KcU, 4 
 Bingh. N. C. 038 ; nor even to know them at the time, provided a sufficient 
 ground for dismissal did then exist: Jlidf/imij v. Huntjcrford Market Co., 
 3 A. & E. 171 : Wiletts v. Green, 3 C. & K. 52 : Spotsicood v. harrow, 5 
 Kxch. 110 ; though he may by his mode of pleading make his knowledge of 
 the misconduct material, and necessary to be proved : Mercer v. Whall, 5 
 Q. B. 447 : Cussonsw. Skinner, 11 M. & W. 161. Disability from temporary 
 sickness will not disentitle a servant to >vages, if the contract is treated as 
 subsisting throughout : Cuckson v. Stones, 1 E. & E. 248 ; 28 L. J. Q. B._25. 
 Permanent illness excuses non-performance of a contract for personal service : 
 Boast V. Firth, L. R. 4 C. P. 1 ; 38 L. J. C. P. 1. So the death of either 
 master or servant puts an end to the contract in the absence of any stipulation 
 to the contrary : Farrow v. Wihon, L. R. 4 C. P. 744 ; 38 L. .J. C. P. 326. 
 The premium paid with an apprentice cannot Le recovered hack if the master 
 dies : Whincup v. Hughes, L. R. 6 C. P. 78 ; 40 L. J. C. P. 104.
 
 CONTRACTS OF HIRING. 225 
 
 bound to pay the whole of the agreccl sum. But in the latter 
 case, that is, if the agreement is that the person retained is to 
 be paid a certain sum for his services at a certain time, pro- 
 vided he serves, there being no contract to retain and employ 
 during that term, he can only maintain an action after that 
 time has arrived, for non-payment, and then is entitled to 
 recover the full amount, though his loss may be much less. 
 Convenience is decidedly in favour of construing such agree- 
 ments to be contracts for retaining as well as for the payment 
 of wages " (x). 
 
 In this, as in all other cases upon the construction of agree- intention of 
 ments, the question is, what, as may be gathered from the v^^^^^^- 
 whole terms and tenor of the contract, was the intention of the 
 parties. On the one hand, there may be cases in which the 
 performance of the express obligation imposed upon one party 
 presupposes an obligation upon the other party, which is not 
 expressed. On the other hand, care must be taken not to in- 
 troduce obligations upon either party, in respect of which the 
 contract is intentionally silent, or which are contrary to its 
 terms (//). 
 
 The following rules may, perhaps, help in construing such Effect of word 
 contracts: First. — The word " agreed " is the word of both, "'We^J." 
 as was held in the case of Pordage v. Cole {z). Therefore, 
 where it is agreed that a person shall do a particular thing, or 
 perform a particular service, for a particular sum of money, 
 this involves an obligation on the part of the other to allow 
 him to do that which will enable him to earn his money. This 
 was the foundation of the decision in Elderton v, Emmens (a). 
 There it was agreed between the plaintiff and defendants (a 
 public company) that the plaintiflF, as attorney of the company, 
 should receive a salary of 100/. per annum, in lieu of rendering 
 his annual bill of costs, and should for such salary advise the 
 company in all matters connected with their business, and 
 attend upon them when required. At the end of three months 
 
 [x) Per Parke, B., Elderton v. Emmens, 4 H. L. G. at p. 668 ; 13 C. B. 
 at p. 532. 
 
 (y) See ^er Gockburn, C. J., Churchtvard v. The Queen, L. R. 1 Q. B. at 
 p. 195. 
 
 (:;) 1 Wms. Notes to Saund, 548. 
 
 (a) 6 C. B. 160 ; 17 L. J. C. P. 307, affirmed in Dom. Proc. 13 C. B. 495 ; 
 4 H. L. C. 625. 
 
 M.D. Q
 
 226 
 
 CONTRACTS OF HIKING. 
 
 Where service 
 is a mode for 
 Ijaying a debt. 
 
 Where cove- 
 nants to serve 
 and pay are 
 independent. 
 
 they dismissed him, and refused to pay him more than 50?. 
 The Court held that this agreement created the rehition of 
 attorney and dicnt, and amounted to a promise to continue 
 that relation at least for a year. Consequently that the agree- 
 ment was broken by dismissal, and that an action might at 
 once be brought for the damages accruing from it, without 
 waiting till the end of the year. 
 
 Secondly. — A similar obhgation will be implied, when the 
 object of the contract of service is to supply a means, by which 
 the person who is to pay for the service may discharge a pre- 
 viously existing debt, due to the person who is to render the 
 service. For instance, S., the agent of an insurance company, 
 was indebted to it, and the plaintiff discharged his debt. The 
 company agreed to appoint him joint agent with S. at the same 
 rates of payment as before, and covenanted that in case they 
 displaced S. they would repay to the plaintiff the money he had 
 paid. They subsequently transferred their business to another 
 company, and refused to repay the plaintiff his money. The 
 Court held that, as the object of the arrangement was to enable 
 the plaintiff to repay himself through the sums to be received 
 by S., there was an implied covenant that the comj)any would 
 do nothing of their own act which would put an end to the 
 continuance of that service, without which the object of the 
 arrangement could not be attained (5). 
 
 Thirdly. — Where the agreement is that the plaintiff shall 
 render certain specified services during a specified time, and 
 that the defendant shall pay specified sums for these services, 
 there may be circumstances to induce the Court to hold that 
 the covenants on each side were intended to be independent. 
 The result of such a construction would be, that the defendant 
 would be under no obligation to continue the employment, and 
 could not be sued for dismissing the plaintiff from his service. 
 On the other hand, the jjlaintiff would be entitled from time 
 to time to sue for the stipulated sums, provided he continued 
 ready and willing to perform the services, if permitted to do so. 
 This was the point decided in Aspdin v. Austin (c) and Btin/i 
 
 {b) Stirling v. Maitland, 5 B. & S. 840 ; 34 L. J. Q. 1. See M'Intyre 
 V. Belcher, 14 C. P.. N. S. 654 ; 32 L. J. C. P. 254 : Railway and Electric 
 Apjjliances Co., 38 Ch. D. 597 ; 57 L. J. Ch. 1027. 
 
 (c) 5 Q. B. 671.
 
 CONTRACTS OF HIRING. 227 
 
 V. Sayles (d). In each of those cases the services to be ren- 
 dered extended over a period of several years, and the Court 
 held that the defendant could not be suj^posed to have con- 
 tracted to continue his business during the whole of that time, 
 at any amount of loss or inconvenience to himself. Those cases 
 have been severely observed upon ; but it is submitted that the 
 principle laid down is good law, though it may l)e open to 
 doubt whether it was in each case rightly applied (e). The 
 case of Ghurchivard v. The Queen (/) appears precisely in point. Churchward 
 There a contract had been entered into between the Crown aud ^- '^^'■'^ Queen. 
 the plaintiff, for the conveyance of mails and certain similar 
 services for a period of eleven years. The plaintiff was, during 
 the whole of that period, to keep vessels ready to perform such 
 services of the class stipulated for, as he might be required to 
 perform, and was to be remunerated at the rate of 18,000/. per 
 annum, by quarterly payments to be made out of moneys to be 
 provided by Parliament. The contractor was admittedly ready 
 and willing to perform the services, but before the expiration 
 of the term Parliament refused to provide the money. A peti- 
 tion of right Avas preferred. It was admitted that it could not 
 be shaped in the form of an action for the money, as it would 
 have been necessary to aver that there were funds provided. 
 It was, therefore, put in the form of an action for refusing to 
 employ the contractor, and for preventing him from carrying 
 the mails and earning the money. The Court held that there 
 was no express covenant to employ the contractor, and that 
 there was no reason to imply such a covenant, as his remunera- 
 tion did not depend upon his being employed, bat upon his 
 being ready and willing to be employed. It would have been 
 different if his remuneration had depended on the number of 
 mails to be conveyed, instead of being a fixed quarterly sum. 
 The result was, that if there had not been the provision making- 
 payment depend upon funds provided by Parliament, the con- 
 
 {d) 5 Q. B. 685. 
 
 (e) See for remarks against tliera, per Willes, J., aud Erie, C. .J., Mclnti/re 
 T. Belcher, 14 C. B. N. S. 654 ; 32 L. J. G. P. 254 ; and per Crompton, J., 
 and Erie, C. J., in Elderton v. Emmens. 4 H. L. C. 647, 656. On the other 
 hand, they were treated as good law by Maiile, J., and Parke, B., 4 H. L. C. 
 «61 and 669 ; by Cockburn, C. J., and Shee, J., in Churchward v. The 
 Queen, L. R. 1 Q. B. 191, 208 ; and by Rolfe, 15., in Pilklngton v. Scoit, 15 
 M. & W. 657. 
 
 (/) L. R. 1 Q. B. 173. 
 
 Q 2
 
 imi 
 
 228 CONTRACTS OF HIRING. 
 
 tractor would have been entitled to present his bill quarterly 
 till the end of the contract, though he was never once employed, 
 provided he could show that he was always ready to perform 
 the services if required. 
 Agreement to Fourthly.— An agreement to retain and employ does not 
 supply work involve an undertaking to supply work, unless such an under- 
 \it(L^ taking is expressly contained in, or must be necessarily inferred 
 from the whole of the terms. For instance, the retainer of a 
 doctor or a solicitor or an actor, at a salary, does not involve 
 any obligation upon the contracting party to do more than pay 
 the salary ; he is not bound to have work for the other to do, 
 nor even to give him the work, if he has it (g). But if A. is. 
 l)ound for a specified term to work exclusively for B., and is ta 
 be paid by wages estimated with reference to his work, or if 
 B. has undertaken to employ him on such terms for a definite 
 period, this involves an obligation to find him work by which 
 he may earn his wages. And the inference would be stronger 
 if the contract contained a stipulation that B. might dismiss A. 
 by giving him a specified length of notice (Ii). Accordingly,. 
 until notice or dismissal, A. would be entitled to the wages he 
 had earned, or might reasonably have earned, if allowed to do 
 so. Upon notice he would be entitled to similar wages till the 
 expiration of the term. Upon dismissal without notice, he 
 would be entitled to recover damages for wrongful dismissal 
 upon the usual principles. But where the employment is not 
 exclusive, and the agreement is merely that A. shall do such 
 work as B. may oifer him, at a stipulated rate, this implies no 
 obligation on B. to off'er any work, or to continue the business 
 out of which such work could arise (/). 
 
 An agreement to pay a salary of so much per annum is. 
 merely a yearly hiring, at so much per annum while the service 
 lasts (./). 
 
 [g) Per Parke, B., Elderton v. Emmens, 6 C. B. 160 ; 4 H. L. C. 625 ; 
 16 C. B. 495. 
 
 (h) Pilkingtnn v. Scott, 15 M. & W. 657 : Reg. v. IVelch, 22 L. J. M. C. 
 145 ; 2 E. & B. 357 : Whittle v. Frankland, 2 B. & S. 49 ; 31 L. J. JI. C. 
 81. See, too, per Cockburn, C. J., Churchward v. The Queen, L. K. 1 Q. B. 
 pp. 195, 197 ; re>' Stee, J., ibid. p. 207 : Turner v. Goldsmith, [1891] 1 Q. 
 B. 544 ; 60 L. J. Q. B. 247. 
 
 (z) Burton v. G. N. Ity. Co., 9 Exeb. 507 ; 23 L. J. Ex. 184 : Rhodes v. 
 Forivood, I App. Ca. 256. 
 
 {j) Elderton v. Emmens, 6 C. B. at p. 175.
 
 CONTRACTS OF HIRING. 229 
 
 Where there is a contract to employ for a defined time, and Ilemedy for 
 the servant has been dismissed without just cause, he may sue \'•'.^™^y^l 
 specially on the contract to employ him : and this action may 
 be commenced at once upon the dismissal (k). And where the 
 service is to commence on a future day, and before the arrival 
 of that day, the employer positively renounces the covenant, 
 even without doing anything to incapacitate himself from 
 performing it at the appointed day, the servant may sue at 
 once. And the jury, in assessing the damages, would be justi- 
 fied in looking at all that had happened or was likely to happen, 
 to increase or mitigate the loss of the plaintiff down to the day 
 of trial (/). By bringing this action the plaintiff treats the 
 covenant to hire as still existing, and may recover damages 
 upon it for the period of service up to dismissal ; and therefore 
 if the jury do not give damages for such time, he cannot bring 
 indehiiaius assumpsit afterwards (jn). 
 
 In such a case, however, though the contract is treated as Contract does 
 subsisting for the purpose of suing upon it, it cannot be taken °°* ^c"on^ateral^ 
 to subsist for any ulterior or collateral purpose. The plaintiff purpose, 
 was engaged to superintend mines in America for three years, 
 with a stipulation that he should not be dismissed without a 
 year's notice, or a year's salary, and that if he stayed at the 
 mines three years, he should have the expenses of his family 
 defrayed on their return. He was dismissed in eighteen 
 months after his arrival, without either a year's notice or 
 salary. It was held, that although the contract had not been 
 determined, in the only mode agreed on, it could not be con- 
 sidered as subsisting for the whole time originally contemplated, 
 so as to entitle him to his third year's salary, and the expenses 
 of his family on their return {n). 
 
 The measure of damages in this action is the actual loss .treasure of 
 incurred, which may be much less than the wages for the un- 'damages, 
 expired period of service, where another employment may be 
 easily obtained (o), and which will vanish where the plaintiff 
 
 {k) Paaani v. Gandolji, 2 C. & P. 370. 
 
 (/) Hochster v. Be Latoar, 2 E. & B. 678 : Churchward v. The Queen, L.R. 
 1 Q. B. pp. 204, 208 : Frost v. Knight, L. R. 7 E.x. Ill ; 41 L. J. Ex. 78, 
 in Ex. Ch. 
 
 (m) Goodman v. Pocock, 15 Q. B. 576. 
 
 (n) French V. £rookes, 6 Bingh. '354:. .. ^ ^ 
 
 (o) Elderton v. Emmens, 6 C. B. 178 ; 13 C. B. 495 ; 4 H. L. Ca. 62o : 
 Goodman v. Pocock, 15 Q. B. 583, per Erie, J.
 
 230 
 
 CONTRACTS OF HIRING. 
 
 Doctrine of 
 
 constructive 
 
 service. 
 
 has immediately passed into another employment on equally 
 good terms (p). Where, on a yearly hiring, the plaintiff is 
 dismissed before the termination of the engagement, he is 
 generally given his salary up to the end of the current year (q). 
 Where the contract was for two years, with a fixed salary and 
 half profits, and the plaintiff was dismissed at the end of four 
 months and a half, the jury gave him a year's salary, and his 
 sliare of the profits for twelve months, which was held not to 
 be excessive (r). No allowance can be made in the nature of 
 prctium affcciionis, nor any reference to any pain that might be 
 felt by the plaintiff, on the ground that he was attached to the 
 place (s). 
 
 A right of action for this cause passes to assignees in bank- 
 ruptcy, since the injury to the personal estate is the primary 
 and substantial cause of action {t). 
 
 On the other hand, the plaintiff may treat the contract as 
 rescinded, and sue at once for the time he has actually served. 
 In this form of action he cannot recover anything more than 
 wages for such time {u). And under non-assumpsit, the defen- 
 dant may give in evidence the worthlessness of his services, and 
 tlie jury may give damages accordingly (./;). 
 
 It has been held that a servant improperly dismissed in the 
 middle of his time, might wait till the period had expired, and 
 then sue in inddntaius assumpsit for the whole jJeriod, on the 
 doctrine of constructive service (y). That doctrine, however, 
 after being severely commented upon in Smith v. Hay ward {z), 
 seems to have been tacitly overruled by the Exchequer Chamber 
 
 (p) Rekl V. Explosives Co.,_ 19 Q. B. D. 264 ; 56 L. J. Q. B. 388. 
 
 i^q) Becston v. Oollyer, 4 Bingli. 302 : Down v. Pinto, 9 Exch. 327. 
 
 (»■) Smith V. Thompson, 8 C. B. 44. In winding up companies, the com- 
 pensation to managers engaged for a term has been calculated upon the prin- 
 ciple of ascertaining the present value of an annuity of a sum equal to the full 
 salary for the unexj)ired term, having regard to the risk to health and life, and 
 making a deduction for the liberty of obtaining fresh appointments : YellancCs 
 case, L. R. 4 Eq. 350 : Ex parte Clark, L. R. 7 Eq. 550. 
 
 (s) Per Erie, C. J., Beckham- y. Drake, 2 H. L. Ca. 607. 
 
 {t) Drake v. Beckham, 11 M. & W. 315 ; 2 H. L. Ca. 579 ; reversing 
 Beckham v. Drake, 8 M. & W. 846. 
 
 (m) a rchard v. Hornor, 3 C. & P. 349 : Smith v. Hayward, 7 A. & E. 544 : 
 Broxham v. Waqstaffc, 5 Jur. 845. 
 
 (a;) Baillie n.'KcII, 4 Bingh. N. C. 638. 
 
 (?/) Gandell v. Pontigny, 4 Camp. 375 : Collins v. Price, 5 Bingh. 132 : 
 Smith V. Kinctsford. 3 Sco. 279. 
 
 («) 7 A. & E. 544.
 
 CONTRACTS OF HIRING. 231 
 
 in Elderton v. Emmens (a), and expressly by Patteson, J,, and 
 Erie, J., in Goodman v. PococJc (b). The two alternatives 
 pre\iously mentioned are therefore the only ones open. 
 
 In the case of menial servants, usage has established the Menial 
 right to dismiss them at any time by giving them a month's ^^^^^'^*^* 
 notice or a month's wages (c). A head-gardener, hving within 
 the demesne, at a salary of 100^. a-year, was held to be a 
 menial within this rule (d), and so was a huntsman, though 
 hired at yearly wages, and with the right to receive per- 
 quisites which could not be fully received till the end of the 
 year (e) ; but not a warehouseman (/), nor a clerk (g), nor a 
 governess (h). 
 
 Where a menial, or other person, whose service is of this Actions for 
 nature, viz., determinable by a month's notice or wages, is ^jt^outXe 
 dismissed without either, the declaration must be special, for notice, 
 not giving notice (i). This, however, is quite diflFereut from 
 the case of a contract to employ for a specific time, and a 
 breach of it by improper dismissal. In the latter case, as we 
 have seen {k), the declaration must be for breach of the entire 
 agreement to hire, and damages must be given, not only for 
 the time which has been served, but for that which has not. 
 But in the former case the declaration is only for breach of 
 the particular point as to notice. The damages for this are 
 liquidated, viz., one month's wages (/) ; and the plaintiff may 
 either recover in a separate count, or a separate action, for the 
 bygone service (m). 
 
 The following decision appears to graft an exception upon 
 the above rule. A boy was bound apprentice for four years, 
 the defendant covenanting to instruct him and supply him with 
 
 (a) 6 C. B. 160, 178 ; 4 H. L. C. 625. 
 
 {h) 15 Q. B. 576. See 2 Sm. L. C. 50, 9tli ed. 
 
 (c) Broxham v. Wagstaff'c, 5 Jur. 845. 
 
 {d) NoiolariT. Ablett, 2 G, M. & R. 54. 
 
 (e) Nicoll V. Greo.ves, 17 C. B. N. S. 27 ; 33 L. J. C. P. 259. 
 
 (/) Fawcett v. Cash, 5 B. & Ad. 904. 
 
 Ig) Fairman v. Oakford, 5 H. & N. 635 ; 29 L. J. Ex. 459 : Beeston v. 
 Collyer, 4 Bingh. 309. 
 
 {h) Todd V. Kerrich. 8 Excli. 151 ; 22 L. J. Ex. 1. 
 
 \i) Fcwinrjs v. Tisdal, 1 Excli. 295 ; overruling Eardley v. Price, 2 B. & P. 
 N. R. 333. 
 
 (k) Ante, p. 229. 
 
 {I) Fewinrjs V. Tisdal: French \. Brookes, 6 Bingli. 354. 
 
 (m) Hartley v. Harman, 11 A. & E. 798 ; sS^vmeOi Goodman v. Pocock, 15 
 Q. B. 580.
 
 232 
 
 CONTRACTS OF HIRING. 
 
 S.alary now 
 apportionable 
 hy statute. 
 
 board and lodging for that term. The deed provided that if 
 the piaintiflF showed a want of interest in his work, the defen- 
 dant might cancel the deed on giving him a week's notice. The 
 defendant summarily dismissed the plaintiff without notice, 
 alleging as his reason for doing so that he had been guilty of 
 frequent acts of insubordination, and had gone out at night 
 without permission. The jury found that these charges were 
 untrue, and that no ground existed for dismissing him without 
 notice, but that he might properly have been dismissed at a 
 week's notice under the special clause. It was held that 
 damages were not limited to the value of one week's instruction 
 and residence, but that as the defendant had not acted under 
 the notice clause, the jury were entitled to give reasonable 
 damages, taking into consideration, on one hand, the loss the 
 plaintiff might suffer from the injury to his character arising 
 out of the unfounded charges alleged ; and, on the other 
 hand, that he could have been lawfully dismissed on a week's 
 notice (ji). 
 
 By the Apportionment Act, 1870 (33 & 34 Vict. c. 35), 
 salaries have been made apportionable (o). 
 
 (n) Maiv V. Jones, 25 Q. B. D. 107 ; 59 L. J. Q. B. 542. 
 
 (o) See sections 1 and 2, cited at length, x>ost, p. 259. By s. 5 the word 
 " annuities " includes salaries and pensions. Salaries had been held not to 
 come within the Apportionment Act, 4 & 5 Will. IV. c. 22, s. 2 : Loxondes v. 
 Earl of Stamford and Warrington, IS Q. B. 425 ; 21 L. J. Q. B. 371.
 
 CHAPTER Vll. 
 
 DEBT. 
 
 The damages in an action for the recoveiy of a debt are in Damages in 
 general merely nominal for its detention {a), though the jury j^ ge,"er!JJ"'^ 
 may give substantial damages if they think fit (h). In some 
 cases, however, the damages for detention may form a very 
 important part of the claim ; as, for instance, in debt on a 
 mortgage deed, where the principal and interest are to be paid 
 on a given day, the interest after that day can only be recovered 
 as damages (c). Accordingly a defence which only answers the 
 debt, and not the damages, is bad {d). 
 
 "VYe have seen in what cases interest is given as a matter of Interest. 
 law (e). And by 3 & 4 W. IV. c. 42, s. 28, upon aU debts 
 payable at a certain time or otherwise, the jury may, if they 
 think fit, give the cun-ent interest as damages from the time of 
 payment, if payable by written agreement at a certain time ; if 
 otherwise, then from demand of payment in writing, if notice 
 is given that interest would be claimed. (/)• 
 
 The rio-ht to nominal damages was generally discussed in Nominal 
 
 ■■ T T A , 1 i-1 damages. 
 
 cases, before the County Court and Judicature Acts, where the 
 costs of the action depended upon the result. It was held thac 
 where a plaintiff had actually received payment of the debt, he 
 could not commence an action for nominal damages (^), and 
 that if he meant to demand further damages as interest, he 
 
 (a) Wilde v. Clarkson, 6 T. R. 304. 
 
 (6) Per Lord Abinger, C. B., Henry v. Earl, 8 M. & W. 233. 
 
 %l) Lowe V.' Uteele, 15 M. & W. 380 : Ash v. Fmippeoille, L. R. 3 Q. B. 86 ; 
 37 L. J. Q. B. 55. As a matter of mere pleading damages are now deemed 
 to be put in issue unless expressly admitted. 0. 21, R. 4. 
 
 (p) Ante, p. 156. 
 
 if) See ante, p. 164. 
 
 (r,) Beaumont y. Greathead, 2 C. B. 494 ; and see, i^cr Willes, J., TeUeij 
 V. Wanless, L. R. 2 Ex. at p. 280 ; 36 L. J. Ex. Cli. 156.
 
 234 NOMINAL DAMAGES IX DEBT. 
 
 ought not to receive the principal (h). But when he had com- 
 luenced an action, if the debt were paid during the course of 
 it, he might proceed for nominal damages to entitle him to 
 costs (i). And in such a case the verdict was entered for the 
 whole sum due and paid since action brought, with Is. damages, 
 and if execution was issued for more than the Is. damages and 
 costs, the defendant's course was to apply to the Court for 
 relief (Jc). 
 Cases of pay- ^ut wherc the payment had been made after action, and 
 
 ment after the plaintiff had either waived or accepted damages for its, 
 action brought, ^ig^gj^tjo^^ j^g could have no further claim for damages, and 
 could not proceed for costs, which only arise out of damages. 
 An action was brought on a cheque for 25/. Defendant 
 after action commenced paid the amount, and offered 1/. for 
 expenses, which plaintiff refused, saying he would pay them 
 himself. Held that the jury Avas right in entering verdict for 
 defendant when the action was continued {I). Lord Denman 
 seems to have put this on the ground that after the debt was 
 paid, the plaintiff could not proceed for merely nominal 
 damages. This, however, is contrary to NowUi v. Page. It 
 would seem that the real ground of the decision was, that the 
 sum was accepted in satisfaction, not only of the debt, but of 
 all damages and costs arising from its detention, as will be seen 
 from the argument and observations of Erie, J. (m). Conse- 
 (jueutly, there were no damages to proceed for. 
 
 Action for 201. for use and occupation : pleas, 1st, except as 
 to 12/. nvnriuam indcljiiatiis; 2nd, as to 11/. parcel of the 12/., 
 in bar of further maintenance, payment of 11/., after writ and 
 before declaration, in satisfaction thereof and all causes of 
 action in respect thereof; ord, as to 1/. payment iuto court. 
 Plaintiff joined issue on 1st and 2nd pleas, and took money 
 out of court on 3rd. It appeared on trial that the debt had 
 never exceeded 12/., and that after the writ had issued, but 
 
 (h) Dixon Y. Parlces, 1 Esp. 110. 
 
 \i) Nosotti V. Far/e, 10 C. B. 643 : Goodwin v. Cremer, 18 Q. B. 757 : 
 Kemp V. Balls, 10 Ex. 607. 
 
 {k) Nosotti V. Page, 10 C. B. 643. 
 
 {I) Thame v. Boast, 12 Q. B. 808. 
 
 (to) Jb., at p. 813 ; and in Goodwin v. Cremer, 18 Q. B., at p. 761. See 
 al.so as to its being a question of fact whether the payment is made on account 
 of the debt only, or of debt and damages, per Willes, J., in Tetley v. Wanless, 
 L. R. 2 Ex. at p. 280 ; 36 L. J. Ex. at p. 156 in Ex. Ch.
 
 NOMINAL DAMAGES IX DEBT. 235 
 
 before plaintiflF or defendant knew of it, plaintiff received the 
 11/. mentioned in 2nd plea. Plaintiff contended, that as he 
 did not know that costs had been incurred, he could not have 
 received the 11/. in satisfaction of the causes of action, one of 
 which was the costs to which he was not aware that he was 
 entitled. The judge directed Is. damages to be entered. 
 Held wrong. As to 1st plea, the verdict plainly ought to be 
 entered for the defendant. As to 2nd, the evidence proved 
 that he had accepted 11/. in satisfaction of it. And as to the 
 costs arising from the action to recover it, these were exactly 
 the same costs as the plaintiff was entitled to recover on taking 
 the money out of Court. Consequently, no more damages 
 could be recovered under the 2nd count than those which were 
 actually paid for under the 3rd count. Verdict Avas entered 
 on the general issue for defendant ; damages were struck out, 
 and postea to defendant [n). This decision seems to have gone 
 on the ground that the only damage caused by the detention of 
 the 11/. was the cost of suing for it. If so, as such cost was 
 received by the plaintiff on the ord plea (o), the damage was 
 exhausted, and there was no further cause of action. But it 
 seems pretty clear that there was a nominal damage caused by 
 the detention, for which, when the action had once commenced, 
 the plaintiff could continue it (^;), unless this damage had itself 
 been satisfied by the payment of 11/., as in Thame v. Boast. 
 This was quite distinct from the costs of suit. Perhaps, how- 
 ever, the explanation is, that such riominal damage was only a 
 fiction, maintained to enal)le the plaintiff' to get his costs ; and 
 as these were provided for under the 3rd count, the result of 
 maintaining the fiction would have been to give him the costs 
 of carrying out an action beyond its necessary limits. 
 
 In a later case the action was for goods sold. Plea, except 
 as to 22/. 85. M. never indebted, and as to that sum payment 
 after action brought of 22/. 8s. od. to the plaintiff, who ac- 
 cepted it in satisfaction of the said claim of '221. 8s. M., and of 
 all damages accrued in respect thereof At the trial the plain- 
 tiff offered no evidence on the first issue, and defendant proved 
 payment of the sum alleged to the plaintiff, who accepted it, 
 
 (w) Horner v. Denham, 12 Q. B. 813, n. 
 (o) Rumhclow v. Whalley, 16 Q. B. 397. 
 (^) Nosotti V. Page, 10 G. B. 643.
 
 236 NOMINAL DAMAGES IN DEBT. 
 
 no mention being made of costs. The judge was of opinion 
 that the plaintiff ought to have confessed the plea, and taken 
 his costs under Reg. Gen. T. T. 1853, pi. 22, and ordered a 
 verdict for the defendant, with leave to move to enter nominal 
 damages. The Court held, that the plaintifl' was entitled to 
 judgment in his favour, for that the plea was not proved, 
 unless the defendant showed, either that the plaintiff consented 
 to accept the 22/. 8s. M. in satisfaction of the debt, damages, 
 and costs, or that the costs were paid. Bramwell, B., said, 
 " The case of Beaumont v. Greathead merely amounts to this, 
 that nominal damages are inappreciable when they do not 
 increase the actual claim. In the case of Thame v. Boast, all 
 that the Court decided was, that, in point of fact, the money 
 was paid and received in satisfaction of both debt and damages, 
 and the question was not discussed whether it could be a satis- 
 faction in point of law " ((/). It is curious that Horner v. 
 Lenham was not cited on cither side, as it seems exactly in 
 point. There the Court seem to have thought, as the judge 
 did here, that as all the costs incurred by the plaintiff at the 
 time the payment was made, were offered to him by the plea, 
 he had no right to go on, unless he claimed something more 
 than merely these costs. 
 Release after In a later case in an action of debt, the defendant pleaded 
 
 action brouglit. ^^ ^j^g fm-ther maintenance of the action a composition deed 
 executed by a statutory majority of his creditors under the 
 Bankruptcy Act, 1861, containing a release of "all actions, 
 suits, debts, claims, or demands," which the creditors had or 
 had had against the defendant, and an acceptance of the stipu- 
 lated composition in full satisfaction of the several sums of 
 money owing to them. The action was commenced before the 
 execution of the deed, A verdict having been entered for the 
 defendant, and a rule to enter it for the plaintiff and for judg- 
 ment no7i obstante veredicto having been discharged by the 
 Court of Exchequer, it was argued in the Exchequer Chamber 
 that the effect of a release after action brought of a debt which 
 was the cause of action was only to discharge the debt itself, 
 subject to the creditor's right to go on with the action to obtain 
 a judgment for nominal damages to which judgment the law 
 
 iq) Cook V. IIojieuKll, 11 Exch. 555, 559.
 
 ACTIONS OP DEBT. 
 
 237 
 
 would annex costs. The Courfc of Elxchequer Chamber gave 
 judgment for the defendant, considering that the release being 
 of all "actions, suits, debts, claims, or demands," the debt and 
 action were both gone (r). 
 
 As a plea of tender alleges that the defendant has been ready 
 to pay at all times, if the plea is found for the defendant, the 
 plaintiff cannot obtain any damages, because there has been no 
 detention of the debt (s). 
 
 As to damages in debt for a penalty given by statute, sec 
 ante, p. 2. 
 
 As to the cases in which a penalty may be recovered as 
 liquidated damages, see ante, p. 1 44. 
 
 In debt upon a bond for performance of covenants, condi- 
 tions, &c., the plaintiff formerly not only had judgment, but was 
 entitled to take out execution for the whole penalty, together 
 with his costs, without any regard to the amount of damage he 
 had suffered (/). 
 
 But by 8 & W. III. c. 11, s. 
 unrepealed, it is enacted, that in all 
 of record upon any l)ond, or on any 
 performance of any covenants or agreements, contained in 
 any indenture, deed, or writing, the plaintiff may assign 
 as many breaches as he shall think fit ; and the jury shall 
 assess not only such damages and costs as were thereto- 
 fore usually done, but also damages for such of the breaches 
 as the plaintiff shall prove to have been broken, and the like 
 judgment shall be entered on such verdict as theretofore was 
 usually done. And if judgment shall be given for the plaintiff 
 on demurrer, or by confession, or nil dicit, the plaintiff may 
 suggest on the roll as many breaches as he shall thuik fit, 
 which shall be inquired into by a jury summoned to appear 
 
 8 (ii), which is still 
 actions in any court 
 penal sum, for non- 
 
 Tender. 
 
 Penalty. 
 
 Liquidated 
 damages. 
 
 Provisions of 
 Statute 8 & 'J 
 W. III. c. 11. 
 
 Relief against 
 penalty in 
 bond. 
 
 (r) Tctk)/ V. Wnnlrss, L. R. 2 Ex. 21 ; 35 L. J. Ex. 25 ; affirmed L. R. 
 2 Ex. 275 ; 36 L. J. Ex. 153. The plea was, in the first instance, pleaded in 
 bar, but the Court of Exchequer amended it by making it a plea to the further 
 maintenance of the action. 
 
 (s) Cutlers' Co. V. Hurslcr, Comb. 221 ; 1 W. Saund. 33 d ; 1 Wms. 
 Notes to Saund. 42. 
 
 {t) 1 W. Saund. 57, n. 1 ; 1 Wms. Notes to Saund. 67, n. 1. 
 
 («) See as to the operation of this enactment, pn- Braniwell, B., Belts v. 
 Burch, 4 H. & N. 506 ; 28 L. J. Ex. 267, where he pointed out, that it was 
 under this statute that a Court of Common Law was able to relieve against a 
 penalty.
 
 238 
 
 ACTIONS OF DEBT. 
 
 Statute is 
 compulsory. 
 
 How judgment 
 to be entered. 
 
 ^lode of suing 
 for breach of 
 covenant. 
 
 before the sheriff (a^). After the damages assessed and costs 
 have been satisfied, either before or after execution, a stay of 
 execution is to be entered on the record ; but the judgment 
 shall notwithstanding remain as a farther security for future 
 breaches. 
 
 This statute is compulsory in all cases to which it applies. 
 Therefore Avhen the plaintiff has judgment on verdict, or by 
 default, he must have the damages assessed by a jury (y). 
 
 " The like judgment," however, " shall be entered on such 
 verdict as heretofore hath been done." Therefore, at the trial, 
 the jury must find a verdict for the plaintiff with Is. damages 
 and 40s. costs, as before. And the judgment is to recover the 
 debt, i.e. the penalty, and Is. damages, for detention, and 40s. 
 costs ; together with the costs of increase, which include of 
 course the costs of trial (2). 
 
 Where breaches are assigned, whether before or after defence, 
 the jury who try the cause may assess the damages without a 
 special venire ad inquirendum. But where they are suggested, 
 a special venire is necessary (a). 
 
 According to the practice as established before the Judicature 
 Acts the plaintiff" had the option of the following alter- 
 natives : — 
 
 He might state the condition of the bond in his declaration, 
 and assign several breaches under the statute. 
 
 He might declare on the bond generally. In this case, if 
 defendant suffered judgment by confession or nil dicit, or 
 the plaintiff had judgment on demurrer, breaches might be 
 suggested. 
 
 (x) 3& 4 W. IV. c. 42, s. 16. 
 
 iy) Drage v. Braml, 2 Wils. 377 : Hardy v. Bern, 5 T. R. 540, 636 : 
 Eoies V. RoseicelL 5 T. R. 53S : Walcot v. Goulding, 8 T. R. 126 ; over- 
 ruling Walker v. Priestley, Com. Rep. 376 : Dry v. Bond, Bull. N. P. 164. 
 The provisions of the statute cannot be waived by agreement between the 
 parties : Montgomery v. Byrne, 2 Ir. C. L. R. 230. 
 
 (r) 1 W. Saund. 58, d ; 1 Wms. Notes to Saund. 75. The writ of execu- 
 tion, if sued out, must be for the entire penalty', damages, and costs ; but it 
 must be endorsed to levy only the damages assessed for the breaches, the costs 
 found by the jury, and the costs of increase, and the costs of execution. If 
 the damages assessed and the charge of execution exceed the penalty of the 
 bond, the execution must be only for the amount of the penalty and costs of 
 increase. 1 W. Saund. 58, e ; 1 Wms. Notes to Saund. 77 ; 1 Chitty's Arch. 
 Pr. 611. 12th ed. 
 
 (a) Parkins v. HavhsTiaw, 2 St. 331 : Quin v. King, 1 il. & W. 42 : 
 Scott V. Htaley, 4 B. N. C. 724.
 
 ACTIONS OF DEBT. 239 
 
 If the defendant pleaded to the declaration : if his plea was 
 one to which the plaintiff might reply at common law, without 
 assigning breaches, as non est factum, covin, he might do so, 
 and enter a distinct and separate suggestion of breaches under 
 the statute, whether before or after judgment (Z*) ; but he could 
 not join an issue to a plea, and a fresh suggestion in the same 
 replication (^). 
 
 If the defendant pleaded so that the plaintiff must have 
 assigned a breach at common law, e.g., general performance, the 
 plaintiff was bound to assign breaches, but might by virtue of 
 the statute assign several {d). 
 
 Where the plaintiff did not assign damages at first, and 
 the defendant, setting out the conditions, pleaded performance 
 to jjart and excuse for the residue ; then as to the part of 
 the condition as to which performance was pleaded, the plaintiff:' 
 might assign one or more breaches ; but as to the part of which 
 performance was not pleaded, but was excused, a suggestion 
 was necessary. If the matter of excuse was traversed, then 
 there was no assignment but a suggestion of breaches, the truth 
 of which, without any issue, was tried with a view to ascertain 
 the amount of damages if the issue on the traverse should be 
 found for the plaintiff, otherwise not (e). 
 
 By Order 13, Rule 14, where a writ is specially endorsed 
 with a claim on a bond within the statute, and the defendant 
 fails to appear, no statement of claim is to be delivered, but the 
 plaintiff is to deliver a suggestion of breaches and proceed as 
 mentioned in the statute, and in 3 & 4 W. IV. c. 42, s. IG. 
 This latter statute provides for trial before a sheriff" instead of 
 before justices of assize or nisi prius. 
 
 By Order 22, Rule 1, a defendant may pay money into Court 
 to particular breaches, but not to the whole action. 
 
 In other respects there is nothing in the new rules which is 
 inconsistent with a substantial continuance of the old practice, 
 though the old forms of pleading are discontinued, and the 
 plaintiff still has the option, which he had before the Judicature 
 
 (6) Ethersei/ v. Jackson, 8 T. R. 255 : Ilomfray v. Righy, 5 M. & S. 60. 
 
 (c) Be la Rue v. Stewart, 2 B. & P. N. R. 362. 
 
 (d) Plomer v. Ross, 5 Taunt. 386. 
 
 (e) Per Parke, B., Wehb v. James, 8 M. & W. 645, 658. See 2 W. Saund. 
 187, a, et seq.
 
 240 ACTIONS OF DEBT. 
 
 Acts, of proceeding in the first instance for the whole penalty 
 under the bond without mentioning the conditions, reserving 
 his assignment of breaches till after the defence, or of assigning 
 them in his statement of claim. The latter is the most con- 
 venient course. 
 To ^l.at cases The statute extends to all bonds and deeds for the perform- 
 the statute .^^^q of Covenants or payment of money, which are of a divisible 
 extends. mature, and capable of only a partial breach ; or from the viola- 
 
 tion of which, only part of the damage guarded against may 
 arise. It includes, therefore, bonds for the payment of money 
 by instalments {/) ; for the payment of an annuity ( g) ; for the 
 performance of an award (A) ; and Avhere a bond is conditioned 
 for the payment of a single sum, and also for the performance 
 of other covenants, breaches must be assigned, though the 
 action is merely brought to recover the single sum, for which 
 purpose it is like a common money bond {i) : for in all such 
 cases, as the plaintiff would have been entitled at law to 
 issue execution to the full amount of his judgment, the 
 defendant would have been forced to an expensive remedy in 
 equity. 
 
 And it applies equally Avhcther the covenants, &c., arc con- 
 tained in the same deed or writing, or iu a different one (Z-)- 
 When it does The statute does not extend to bail-bonds (?), nor replevin 
 not apply. bonds(;»)j because the Court can give such relief as a Court 
 
 of Equity could, and the form of the bond ascertains the value 
 of the thing which it is taken to secure («) ; nor to money- 
 bonds for payment of a sum certain at a day certain, against 
 Avhich the Court can relieve on payment of the money due, by 
 4 Ann. c. 16, s. 13 (o) ; nor to post obit bonds (^;) ; nor to 
 bonds for payment of interest and principal, where both have 
 
 (/) WiltovgJJjy v. Swinton, 6 East, 550 : Harrimjtoa t. Coxc, 3 Ir. 
 C L 87 
 '(*/) Walcot V. Gouldinff, 8 T. R. 126 : Ryan v, Masoy, 2 Ir. C. L. G42. 
 
 (//) Welch V. Ireland, 6 East, 613. 
 
 (/) Qnln V. Kiny, 1 M. & W. 42. 
 
 (/.) 1 W. Sauiul. 58, n. 1 ; 1 Wms. Notes to Saund. 68. 
 
 (/) iMoody V. Pheasant, 2 B. & P. 446. 
 
 (//() Middleton v. Bryan, 3 M. & S. 155. See Bixx. Groom, 5 Ex. D. 91. 
 
 (n) Ibid. ; 10 Bingh. 131, 'per Tindal, C. J. See now as to replevin bonds, 
 19 k, 20 Vict. c. 108, ss. 63. scqq., the C. L. P. Act, 1860, 23 & 24 Vict. c. 
 126, s. 22, and the County Courts Act, 1888, 51 & 52 Vict. c. 43, ss. 135, 136. 
 
 (o) Murray v. E. of Stair, 2 B. & C. 90, 92. 
 
 Q)) Ibid. ; Cardozo v. Hardy, 2 B. Moore, 220.
 
 ACTIONS OF DEBT. 241 
 
 become due {q), even though the money became payable in 
 
 consequence of certain provisions in an indenture of even 
 
 da>te, provided that by the course of pleading the jury have 
 
 found that the money had become payable (r) ; nor to bonds 
 
 for payment of principal and interest, with proviso that on 
 
 default in paying the interest, the whole amount of principal 
 
 and interest should become due (.?). But where the bond is Cases to -wMcli 
 
 for payment of principal on a future day, and interest in the tlie statute 
 
 meantime, and the bond becomes forfeited before the day by a 
 
 default in the interest, the statute applies (f). It does not 
 
 extend to judgment entered upon a warrant of attorney to 
 
 secure a sum by instalments ; though the Court, if necessary, 
 
 would direct an issue to enquire whether the instalments had 
 
 been paid («) ; or to secure an annuity (x) ; because in such a 
 
 case, if execution were issued for more than the arrears due, 
 
 " the Court would have set it aside, or in case of any mistake 
 
 have referred it to their officer, or if necessary to a jury, to 
 
 say for what sum the execution ought to stand " (//), And the 
 
 rule is the same where the warrant of attorney is collateral 
 
 security for a bond for the same purpose (.?). But where a 
 
 bond was nominally absoluce for payment of a particular sum, 
 
 but by indenture of same date reciting the bond, it was agreed 
 
 that it should stand as security for all sums of money which 
 
 then were, or might afterwards become, due from the obligor 
 
 or the bond ; this was held to be a mere evasion of the statute, 
 
 and that an assignment of breaches was necessary (a). 
 
 It is not necessary for the Crown to assign breaches under 
 this statute, and if any one breach is proved it is entitled to 
 judgment (h). 
 
 On the whole current of authorities, it appears thac no more No more than 
 than the amount of penalty and costs can be recovered on a ''^™°"'i* ^^ , 
 
 1-11 j^i 1 • . T 1 penalty and 
 
 bona ; because the penalty ascertams the damages by consent costs can be 
 
 , _^__ recovered on 
 
 a bond. 
 
 (q) Smith v. Bond, 10 Bingh. 125. 
 
 (r) Ibid. : Darbishire v. Butler, 5 B. Moore, 198. 
 
 (s) James v. Thomas, 5 B. & Ad. 40. 
 
 (f) Tighe v. Craftcr, 2 Taunt. 387 : Vaiisandau v. , 1 B. & A. 214. 
 
 {u) Cox V. Rodbard, 3 Taunt. 74 : Kinncrslcy v. Mussen, 5 Taunt. 264. 
 
 {x) Shaw V. Marq. Worcester, 6 Bingh. 385. 
 
 {y) Per Tindal, C. J., ibid. 389. 
 
 (;) Austerburtj v. Morgan, 2 Taunt. 195. 
 
 (a) Hurst v. Jennings, 5 B. & C. 650. 
 
 {b) Per Alexander, C. B., R. v. Peto, 1 Y. & J. 171. 
 
 M.D. R
 
 242 
 
 ACTIONS OF DEBT. 
 
 ^Yhen plaintif 
 is not forced 
 to sue for 
 penalty. 
 
 Liquidated 
 damages. 
 
 Value of sum 
 in foreign 
 currency. 
 
 of the parties (c) ; and upon payment of the penalty and costs 
 the Court will order satisfaction to be acknowledged (d). 
 Where the debt and the penalty were the same sum, and the 
 bond was stated to be for the payment of the debt with lawful 
 interest, Littledale, J., ruled that interest might be given 
 beyond the penalty, as damages for the detention, on the ground 
 that it was expressly pro^aded that the debt should bear 
 interest (e). Here the express agreement negatived the pre- 
 sumption that the parties intended to fix the penalty as the 
 amount of ultimate damage to be recovered. 
 
 But where the penalty is contained in any other instrument 
 than a bond, it is optional for the plaintiff, either to sue in 
 debt for the penalty, or to proceed upon the contract, and 
 recover more or less than the penalty, toties quoties (/) ; and 
 accordingly greater damages than the amount of the penalty 
 have been recovered in actions on charter-party {g). 
 
 Of course where the sum named is not a penalty but liqui- 
 dated damages, the statute does not apply. In such a case the 
 amount is not discretionary. It is of the substance of the 
 agreement ; a jury cannot assess damages where the parties 
 themselves have fixed them (A). 
 
 Where an action is brought in England, to recover the value 
 of a given sum in a foreign currency, upon a judgment obtained 
 abroad, the value is that sum in sterhng money which the 
 currency would have produced, according to the rate of 
 exchange between the foreign country and England at the date 
 of the former judgment (/). 
 
 (c) White V. Sealey. Dougl. 49. 
 
 (d) Ibid. : Bmngwiii v. Perrot, 2 W. Bl. 1190 : Wilde v. Clarkson, 6 T. 
 E,. 303 ; overruling Lord Lonsdale v. Church, 2 T. R. 388 : Clarke v. Scton, 
 5 Ves. 415 : M'Clure v. Bunkin, 1 East, 436-S : Hellen v. Ardley, 3 C. & 
 P. 12. 
 
 (e) Francis y. Wilson, Rv. & M. 105. 
 
 (/) Prr Lord Mansfield, Loice v. Peers, 4 Burr. 2228. 
 
 (gr) Winter v. Trimmer, 1 W. Bl. 395 : Harrison v. Wright, 13 East, 
 343 ; Maylam v. Norris, 2 D. & L. 829. 
 
 {h) Lowe V. Peers, 4 Burr. 2'229 : Barton v. Glover, Holt, N. P. C. 43 ; 
 ante, p. 146, et seq. ; 1 W. Saund. 58, c ; 1 Wms. Notes to Saund. 74. 
 
 (i) Scott V. Bevan, 2 B. & Ad. 78.
 
 CHAPTER VIII. 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 The Bills of Exchange Act, 1882 (a), having been passed to Damages 
 codify the law relating to Bills of Exchange, it will be con- "iitler Bills of 
 
 . "^ ^ _^ Exchange Act. 
 
 venient to commence this chapter with its enactment as to 
 damages. Section 57 is as follows : — 
 
 Where a bill is dishonoured the measure of damages, which 
 shall be deemed to be liquidated damages, shall be as 
 follows : — 
 
 (1.) The holder may recover from any party liable on the 
 bill, and the drawer who has been compelled to pay 
 the bill may recover from the acceptor, and an in- 
 dorser who has been compelled to pay the bill may 
 recover from the acceptor, or from a prior indorser — 
 
 {a.) The amount of the bill : 
 
 (&.) Interest thereon from the time of presentment for pay- 
 ment if the bill is payable on demand, and from the 
 maturity of the bill in any other case : 
 
 ■(c.) The expenses of noting, or when protest is necessary, 
 and the protest has been extended, the expenses of 
 protest. 
 
 (2.) In the case of a bill which has been dishonoured abroad, 
 in lieu of the above damages, the holder may recover 
 from the drawer or an indorser, and the drawer or 
 an indorser who has been compelled to pay the bill 
 may recover from any party liable to him, the amount 
 of the re-exchange with interest thereon until the 
 time of payment. 
 
 (3.) "Where by this Act interest may be recovered as damages, 
 such interest may, if justice require it, be withheld, 
 wholly or in part, and where a bill is expressed to be 
 
 (a) 45 & 46 Yict. c. 61. 
 
 R 2
 
 244 
 
 ACTIONS OX BILLS AND NOTES. 
 
 Interest on 
 bills of ex- 
 change. 
 
 From what 
 time it is c; 
 ciliated. 
 
 :ll- 
 
 payable with interest at a given rate, interest as 
 damages may or may not be given at the same rate 
 as interest proper. 
 
 Section 80 applies the above provisions, with the necessary 
 modifications, to promissory notes. 
 
 Interest is, by usage, always allowed upon bills of exchange 
 and promissory notes (h). But where it is not expressly re- 
 served, it is not part of the debt, but merely damages for its 
 detention, and the jury are noL bound to give it unless they 
 think proper. But negligence or default on the part of the 
 holder seem to be the only grounds which _will justify the jury 
 in withholding it (c). Interest ought not to be allowed on a 
 bill or note for any time that it has been in the hands of an 
 alien enemy (rf). 
 
 The mode in which the interest is to be calculated varies 
 according as it is expressly reserved or given as damages. 
 
 Where a bill is expressed to be payable with interest, unless 
 the instrument otherwise provides, interest runs from the date 
 of the bill, and if the bill is undated from the issue thereof (e). 
 And even Avhere no action could originally have been main- 
 tained upon the note, as having been given to a married woman 
 by her husband and two others as sureties for him, it was held 
 that she might recover within six years after the death of her 
 husband, and obtain interest from the date (/). And similarly, 
 where the promise was by the maker of the note for himself 
 and executors, one year after his own death to pay 300Z. with 
 legal interest. In this case no previous dealings between the 
 parties were shown ; but, in the absence of proof, it was pre- 
 sumed that the note was given for value. Had the evidence 
 proved the contrary, so as to render the note a voluntary gift, 
 in the nature of a legacy, it appears the interest would have 
 been held to run from the maker's death (g). 
 
 The provisions of the recent statute respecting the interest 
 
 (h) Ante, p. 156. 
 
 (c) Uli IJcUoix V. Lord Waterpark, 1 D. & R. 16 : Cameron v. Smith, 2 
 B. & A. 308 : Lain^ v. Stone, 2 .^I. & R. 561 • ^'— "• - «'— -in u ^ s 
 
 144 ; 27 L. J. C. P. 89. 
 
 (d) I)u BcUoix V. Waterpark, ubi sup. 
 
 (e) Bills of Exchange Act, 1882, s. 9, sub-s. 
 (/) Richard V. Richards, 2 B. & Ad. 447. 
 ((/) Roffey V. Greenwdl, 10 A. & E. 222. 
 
 Keene v. Keene, 3 C. B. N. S.
 
 ACTIOXS ON BILLS AND NOTES. 245 
 
 recoverable as damages when interest is expressly reserved by Interest 
 the bill are not clear. referveiL 
 
 By sect. 3 a bill of exchange mnst be an order for the pay- 
 ment of a sum certain in money. 
 
 By sect. 9 the sum payable by a bill is a sum certain within 
 the meaning of the Act, although it is required to be paid with 
 interest, and in such case, unless the instrument otherwise pro- 
 vides, interest runs from the date of the note, or if undated, 
 from the issue thereof. 
 
 By sect. 57, as set out above, the measure of damages is to 
 be the amount of the bill and interest thereon from maturity 
 with some other expenses. It would seem from this that the 
 interest u^) to maturity must be added to the initial amount of 
 the bill in order to make the sum upon which interest is to be 
 given as damages under s. 57. The result will be that interest 
 upon interest will be given, which was not the case formerly. 
 If this is not what is intended, but the interest to be given as 
 damages is to be confined to interest from maturity on the 
 initial amount of the bill, no provision is made in s. 57 for the 
 recovery of the interest expressly reserved. 
 
 Where interest was not specially reserved, it ran from the 
 maturity of the bill or note (h), and in case of an instrument 
 payable on demand, from the time of demand. The commence- 
 ment of the action is a sufficient demand for this purpose (i). 
 
 Where there was neither a person competent to sue for the 
 money, nor authorised to receive it, as for example where a bill, 
 upon which interest was not expressly reserved, became due 
 after the death of an intestate and before administration, it 
 was held that interest ran, not from the maturity of the bill, 
 but from demand by the administrator (Ic). In such a case a 
 jury would now under s. 57, sub-s. 3, be entitled to give only 
 such interest as was just. 
 
 It was held in one case that the drawer or indorser of a bill. Liability of 
 not bearing interest on the face of it, was only liable for in- J^Jsgr^oVry 
 terest from the time he received notice of dishonour (/). But interest. 
 
 (h) Gantt v. Mackenzie, 3 Camp. 51. 
 
 (i) Pierce v. Fothenjill, 2 Bingh. N. C. 167. A demand may sometimes 
 be dispensed with where it would be a useless formality : Re East of England 
 Banking Co., L. R. 6 Eq. 368. 
 
 (Jc) Murray v. East India Co'., 5 B. & A. 204. 
 
 {I) Walker v. Barnes, 5 Taunt. 240.
 
 246 
 
 ACTIONS ON BILLS AND NOTES. 
 
 AVIien pay- 
 ment by 
 iustalmcnts. 
 
 Tender ; pay- 
 ment into 
 court. 
 
 Production 
 of l.ill. 
 
 Kate of 
 interest. 
 
 Conflict of 
 laws. 
 
 this decision seems contrary to principle, as the contract by 
 drawer and indorsers is, that tlie acceptor shall pay at maturity, 
 or that they will. Any damage suffered by his default ought 
 to be borne by them. Accordingly, the statute now provides 
 that the interest from maturity may be recovered from drawer 
 or indorser (s. 57). 
 
 Where a note is payable by instalments, and on failure of any 
 instalment the whole is to become due, the interest is to be cal- 
 culated upon the whole amount remaining due after any default, 
 and not upon the respective instalments at the time when they 
 would otherwise have been payable (m). 
 
 Interest does not run after a tender («) ; but when money is 
 paid into court upon an instrument which bears interest, the 
 sum must cover interest down to the date of payment into 
 court, and not merely to the commencement of the action, or 
 the plaintiff may proceed for the difference (o). In all other 
 cases interest is carried down to final judgment (jj). 
 
 Where the defendant by his pleading admits the bill, the 
 plaintiff cannot recover interest from its maturity at the date 
 alleged in the declaration without producing the bill (q). 
 Where there has been a judgment by default, it appears to have 
 been held that the note need not be produced before the Master 
 upon a rule to compute (r). 
 
 Interest is calculated at the current rate of the place, accord- 
 ing to whose laws it is payable. It is for the jury to say what 
 the rate of interest in the particular place is, but it is for 
 the judge to direct them as to the place according to whose 
 laws the interest is to be assessed (s). Bills and notes in 
 England bear interest at the rate of 5/. per cent., both at law 
 and in equity (/). 
 
 Section 12 of the recent statute, which enacts rules where the 
 laws of different countries conflict, still leaves open certain 
 questions, upon which previous decisions will bear. 
 
 (m) Blake V. Lawrence, 4 Esp. 147. 
 [n) Dent v. Dunn, 3 Camp. 296. 
 (o) Kidd V. Walker, 2 B. & Ad. 705 
 {p) Robinson v. Bland, 2 Burr. 1081 
 iq) Hutton v. Ward, 15 Q. B. 26 
 (r) Davis v. Barker, 3 C. B. 606 
 default is final ; Ord. 13, R. 3. 
 (s) Gihhs V. Fremont, 9 Exch. 25. 
 (0 UjHon V. Ferrers, 5 Yes. 803. 
 
 and now in sucli a case, judgment by
 
 ACTIONS ON BILLS AND NOTES. 247 
 
 The place at which each party to a bill or note undertakes According to 
 that 7ie hmself will pay it, is with regard to him the kx loci ^^^^j-g^ 
 coutradus, according to which his liability is governed («)• 
 Consequently, with regard to each of the parties to a bill, 
 interest in the nature of damages, where there has been no 
 express contract, may be of a very different amount. Where a In action 
 bill was drawn, indorsed, and accepted in France, but payable accep^L-, 
 in England, it was held in an action against the acceptor, that 
 he was only liable for the English rate of interest {v). But if 
 the action had been against the drawer, upon default of the drawer, 
 acceptor, his liability to interest would have been regulated by 
 the rate of interest in France. " The drawer, by his contract, 
 undertakes that the drawee shall accept, and sliall afterwards 
 pay the bill according to its tenor. If this contract of the 
 drawer be broken by the drawee, either by non-acceptance 
 or non-payment, the draAver is hable for the payment of the 
 bill, not where the bill was to be paid by the drawee, but where 
 he, the drawer, made his contract, with such interest, damages, 
 and costs as the law of the country where he contracted may 
 allow " {x). 
 
 When, however, a bill has been drawn at A., and indorsed or indorser. 
 at B., and tl:ie action is against the indorser, it is a question 
 whether this indorsement is a new drawing of a bill at B., or 
 ouly a new drawing of the same bill, that is, a bill expressly 
 made at A. In the former case it would carry interest at the 
 rate at B. ; in the latter, at A. {y). There is a diiference upon 
 this point. Pardessus adopts the latter opinion {z). He says, 
 " L'obligation de dommages-interets fait partie de la conven- 
 tion intervenue entre le tireur et le preneur, et chaque endosseur 
 s'cst porte caution d'executer I'engagement du premier. Chacun 
 d'eux peut done, dans I'espece presentee, etre contraint de payer 
 tons les dommages-interets auxquels le defaut d'acquittement 
 de la dette peut donuer lieu." The weight of authority in 
 Euo-land, however, is certainly in favour of the other view. 
 
 («) Story, Confl. Laws, s. 314. 
 
 (v) Cooler V. Walde'jrave, 2 Beav. 282. 
 
 x) Per Right Hon. Pemberton Leigh, Allen v. Kemhle, 6 Moo. P. C. 314, 
 321 : Cougan v. Bankes, Chitty on Bills, 11th ed. 437 : Glhbs v. Fremont, 9 
 Exch. 25. 
 
 {y) Per Alderson, B., 9 Exch. 31. 
 
 (z) Cours de Droit Com., Art. 1500.
 
 248 ACTIONS ON BILLS AND NOTES. 
 
 Lord Langdale, M.E., in the case previously cited {a), says, 
 " At the time when there is a breach of the contract of the 
 acceptor by non-payment in the country where payment is 
 contracted to be made, there may be a contemporaneous 
 breach of contract by the drawer or indorser in the country 
 where the contract was entered into — where the bill was drawn 
 and the indorsement made, — and the consequences of that 
 breach of contract might be governed by the law of the country 
 where it takes place." Here his Honour places drawer and 
 iudorser as each liable on the same principle, viz., according 
 to the law of the place where their contract was made. These 
 words are relied on by Mr. Pemberton Leigh in Allen v. 
 Kemhle (b). And no difference is taken between the cases. 
 As the latter decision settled the liability of the draw^er, accord- 
 ing to the opinion first quoted, it may be fairly argued that the 
 liability of the indorser would have been similarly settled, if the 
 question had arisen. The high authority of Story, J., is also 
 marshalled on the same side (c). 
 
 The Bills of Exchange Act, 1882, contains the following pro- 
 visions (d) : " Subject to the provisions of this Act, the inter- 
 pretation of the drawing, indorsement, acceptance or acceptance 
 sicpra protest of a bill, is determined by the law of the place 
 where such contract is made. Provided that where an inland 
 bill is indorsed in a foreign country the indorsement shall as 
 regards the payer be interpreted according to the law of the 
 United Kingdom." 
 
 " Where a bill is drawn out of, but payable in, the United 
 Kingdom, and the sum payable is not expressed in the currency 
 of the United Kingdom, the amount shall, in the absence of 
 some express stipulation, be calculated according to the rate of 
 exchange for sight drafts at the place of payment on the day 
 the bill is payable." 
 Where interest Where interest at a particular rate is expressly reserved 
 ies™r^^ ^^P°^ *^^® ^^^® °^ ^^® instrument, it becomes of course part of 
 the debt, and the drawer and every indorser is liable to pay 
 
 (ft) Cooper V. Waldegrave, 2 Beav. 282, 285. 
 (b) 6 Moo. P. C. 322. 
 
 (c) Story, Confl. L. s. 315. See further, Hirschfeld v. Smith, L. R. 1 C. 
 . 340 ; 35 L. .7. C. P. 177 : Lebel v. Tucker, 8 B. & S. S30 ; L. R. 3 Q, B. 
 
 P 
 
 77 ; 37 L. J. Q. B. 46 
 [d) S. 72, sub-ss. 2, 4
 
 ACTIONS ON BILLS AND NOTES. 249 
 
 this exact amount, wherever his own contract was made. It is 
 not an additional damage accruing from his own breach of 
 contract, but an integral part of the sum which he has con- 
 tracted to ensure. Interest may, however, be expressly re- 
 .served, witliout any mention of the rate. In such cases, the 
 rule is laid down by Mr. Chancellor Kent (e), and by ]\Ir. 
 Justice Story (/), as follows : " The law of the place where the 
 contract is made is to determine the rate of interest, when 
 the contract specifically gives interest : and this will be the 
 case, though the loan be secured by a mortgage on lands in 
 another state, unless there be circumstances to show that the 
 parties had in view the law of the latter place in respect to 
 interest. When that is the case, the rate of interest of the 
 place of payment is to govern." 
 
 The circumstances which utterly vitiate a bill, such as fraud, 
 immorality, and illegality, of course do not come within our 
 object (g). But as the bill may be a perfectly fair and legal 
 transaction, and yet the holder have no right to recover at all, 
 or only a part of the sum named in it, the question of con- 
 sideration becomes important. 
 
 As between immediate parties to the instrument, such as Effect of want 
 drawer and acceptor, indorser and his indorsee, the I'ule is very ^j^J^j""''^ 
 simple. An original absence of consideration (A), or an entire 
 failure of consideration (/), will be an entire bar to the action. 
 And a partial absence, or failure, of consideration will be a bar 
 pro tanto (Ic). 
 
 " But between remote parties, for example, between payee 
 and acceptor, between indorsee and acceptor, between indorsee 
 and remote indorser, two distinct considerations at least must 
 come in question : first, that which the defendant received for 
 his liability ; and secondly, that which the plaintiii" gave for his 
 title. An action between remote parties will not fail, unless 
 there be an absence or failure of both these considerations. And 
 
 (e) 2 Kent Com. 460, 461. 
 
 (/) Coufl. Laws, s. 805. 
 
 ((/) See Byles on Bills, 15tli ed., 155—165. 
 
 (/() Holliday v. Atkinson, 5 B. & C. 501 : Southall v. Ri^g, 11 C. B. 481 : 
 Crofta V. Beak, 11 C. B. 172. 
 
 [i) Wells V. Hopkhu, 5 M. & W. 7 : Solly v. Einde, 2 C. & M. 516. 
 
 \k) Darnell v. Williams, 2 Stark. 166 : Barber v. Backhouse, Peake, 86 : 
 Simpson v. Clarke, 2 C. M. & R. 342,
 
 250 
 
 ACTIONS ON BILLS AND NOTES. 
 
 Effect of 
 failure of 
 consideration. 
 
 Consideration 
 executed. 
 
 if any intermediate holder between the defendant and plaintiff 
 gave vahie for the bill, that intervening consideration will 
 sustain the plaintiff's title " {}). Nor is it any defence in an 
 action by indorsee for value against the acceptor or any other 
 person who has received no consideration, that the plaintiff 
 took with notice of that fact (m) ; unless the indorsement to 
 the plaintiff amounted to a fraud upon the defendant, of which 
 the plaintiff at the time wos aware {n). And the same rule 
 prevails, though it was indorsed to him after due (o). But 
 W'here the bill is an accommodation bill, and known to be so by 
 the indorsee, he can only recover on it the amount he has 
 actually paid on it ( p) ; though if he were ignorant of that 
 fact, he might recover the whole amount, although he had not 
 paid so much {q). These principles are unaltered by anything 
 contained in the Bills of Exchange Act, 1882 (r). 
 
 With regard to failure of consideration, three things are to 
 be observed : 1st. That if the consideration for which the bill 
 was given is once executed, no subsequent tortious act by which 
 the defendant is deprived of the benefit of that consideration, 
 can be a defence to the bill. 
 
 Therefore where the plaintiff had agreed to execute a lease 
 of premises to the defendant, and the defendant had accepted 
 a bill for the consideration money, and been let into posses- 
 sion, it was decided to be no answer to an action upon the 
 bih, that the plaintiff had refused to execute the lease (s). 
 And the same decision took place where the bill was given 
 ibr the price of goods, which the plaintiff, who was the vendor, 
 had forcibly retaken in two mouths after delivery {t). In each 
 case the only remedy was by cross action against the plaintiff. 
 
 (?) Byles on Bills, 15th ed., 14S : Jloblnson v. Eegnolds, 2 Q. B. 196 : 
 Collins V. Martin, 1 B. & P. 651 : Hunter v. Wilson, 4 Exch. 489. 
 
 (m) Fentum v. Pocock, 5 Taunt. 192 : Manley v. Boycot, 2 E. & B. 46. 
 
 (m) Evans v. Kymcr, 1 E. & Ad. 528. 
 
 (o) Sturtevant v. Ford, 2 M. & G. 101 : ^ein v. Yglcsias, 1 C. M. & R. 
 565 : Lazarus v. Vowic, 3 Q. B. 459. 
 
 (p) Jones V. Hibberl, 2 Stark. 304. 
 
 Kq) Wiffen v. Jtoberts, 1 Esp. 261. 
 
 {r) See ss. 27—30, s. 36, s. 97, sub-s. 2. The last-named clause expressly 
 preserves the rules of common law, including the law merchant, in reference 
 to bills of exchange, promissory notes, and cheques, save in so far as they are 
 inconsistent with the express provisions of the Act. 
 
 (s) Moyqridyey. Jones, 14 East, 486. 
 
 {t) Stephens v. Wilkinson, 2 B. & Ad. 320 ; and see Grant v. Welchman, 
 16 East, 207.
 
 ACTIONS OX BILLS AND NOTES. 251 
 
 2nd, That where the bill is given in pursuance of an agree- Consideration 
 
 , . 1 T , , independent. 
 
 meut to pay money on a particular day, such agreement 
 
 being absolute and not dependant upon the execution of the 
 
 consideration ; the non-performance of the latter is no defence 
 
 to an action on the bill, while the contract remains open and 
 
 unrescinded. An action was brought upon a note for 2007. 
 
 There was an agreement of the same date with the note, by 
 
 which it appeared that in consideration of 200/'. then paid or 
 
 secured to them by the defendant, and in consideration of 
 
 1140/. to be paid on the 2nd February, the plaintiffs agreed to 
 
 convey to the defendant an estate subject to two mortgages. 
 
 The estate was not conveyed owing to a dispute with the 
 
 mortgagee who refused to assign his interest ; Held that the 
 
 action on the note was maintainable. Lord Tenterden, C. J., 
 
 put the decision on the ground that by the agreement the 
 
 purchase -money was to be paid on the 2nd February, in any 
 
 event. Parke, J., inclined to think that the action would not 
 
 have been maintainable, if the circumstances had been such 
 
 that the defendant, having paid the 2007. as a deposit, would 
 
 have been entitled to recover it back. This he could not do 
 
 as long as the contract remained open. But that was the case 
 
 here, for the plaintiff agreed only to convey the estate subject 
 
 to the two mortgages. They were never bound to convey the 
 
 legal estate to the plaintiff, but only the equity of redemption ; 
 
 and that they never had refused to convey (w). 
 
 3rd. A bill of exchange cannot be accepted on a quantum Partial failure 
 meruit {x) ; and where a bill or note is given for the price of \J^_ 
 goods, evidence of inferior quality is never admissible in re- 
 duction of the claim (jj). But it is otherwise where the in- 
 feriority of the articles arises from fraud on the part of the 
 seller ; this makes the bill bad al) initiu (z). It would appear 
 then, that though a partial absence of consideration may be set 
 up (a), a partial failure of consideration never can, but must 
 always be matter of cross action. 
 
 For an explanation of re-exchange on dishonoured bills^ 
 
 (m) Spiller V. Westlake, 2 B. & Ad. 155. 
 
 (jc) Lord Ellenborough, 2 Camp. 347. 
 
 (y) Ibid. : Morgan v. Richardson, 1 Camp. 40 n. : Fleming v. Simpson, 
 ibid. : Trickcy v. Lame, 6 il. & W. 278 ; Cripps v. Smith, 3 Ir. L. R. 277 ; 
 the ruling of Tindal, C. J., in De Schicanbcrg v. Buchanan, 5 C. & P. 345, 
 upon this point seems incorrect. 
 
 (z) Lewis V. Cosgrave, 2 Taunt. 2 : Solomon v. Turner, 1 Stark. 51. 
 
 (a) Wiffen v. Roberts, 1 Esp. 261 : Jones v. Hibbert, 2 Stark. 304.
 
 252 
 
 ACTIONS ON BILLS AND NOTES. 
 
 Re-exclianfre. 
 
 Protest in case 
 of foreism 
 
 see Byles on Bills (I). The drawer of the bill is liable to re- 
 exchange, no matter how many the hands through which the 
 bill has been returned, and on which the exchange charges 
 have been accumulating, because, by making himself liable for 
 the acceptor, he makes himself liable for all the consequences 
 of the acceptor's default (c). And the same rule holds as to an 
 indorser (d), and an acceptor (e). Where the maker of a note 
 made it " payable in Paris, or at the choice of the bearer, in 
 Dover or London, according ''o the course of exchange upon 
 Paris," and shortly after all direct exchange ceased between 
 London and Paris, though a circuitous course of exchange was 
 maintained through Hamburg. Held that the plaintiff was 
 entitled to recover upon the note, according to the system of 
 circuitous exchange existing at the time the note was presented 
 for payment (/). The Bill of Exchange Act, 1882, s. 57 (2) 
 in terms only applies to bills dishonoured abroad. It has, 
 however, been decided that where a bill has been drawn abroad 
 payable in England, and where by the law of the country where 
 it is drawn the drawer is liable to pay the holder damages for 
 re-exchange if the bill is not paid by the acceptor, in such a 
 case if the drawer has paid re-exchange he is entitled to recover 
 it from the acceptor ; and if he has not paid it, he can prove 
 in the bankruptcy of the acceptor in respect of the contingent 
 liability to pay such charges {g). In all cases where the holder 
 is liable to re-exchange, his remedy against other parties to the 
 bill who are bound to indemnify him is under cl. (2) of s. 57, 
 and not cl. (1) (h). 
 
 In the case of a foreign bill of exchange, a protest for non- 
 acceptance is necessary to charge the drawer or indorsers («) ; 
 
 (b) lotli ed., 444 : Willans v. Ayers, 3 App. Gas. 133. Aud as to the 
 inadmissibility of evidence of an alleged custom among London merchants, 
 giving to the holder an election between the re-exchange and the amount 
 given for the bill, Suse v. Pomhc, 8 C. B. N. S. 538 ; 30 L. J. C. P. 75. 
 
 (c) MelUsh V. Simeon, 2 H. Bl. 378. 
 
 (cZ) Auriol V. Thomas, 2 T. 11. 52; Bills of Exchange Act, 1S82, s. 57, 
 ante, p. 243. 
 
 (e; Francis v. Jiucker, Amb. 671 : Walker v. Hamilion, 1 De G. F. & J. 
 602 : re General South American Co. 7 Ch. D. 637. 
 
 (/) Pollard V. Merries, 3 B. & P. 335. 
 
 (,'/) Re Gillespie, Ex parte Rohcrts, 18 Q. B. D. 286 ; 56 L. J. Q. B. 74. 
 
 {h) Re Commercial Bank of South Australia, 36 Ch. D. 522 ; 57 L. J. 
 Ch. 131. 
 
 {i) Gale v. Wxtlsh, 5 T. R. 239 : Orr v. Maf/imiis, 7 East, 359 ; Bills of 
 Exchange Act, 1882, s. 51, sub-s. 2. The expenses ot protest for better 
 security cannot be recovered, nor banker's commission. Re Eunlish Bank of 
 River Plate, [1893] 2 Ch. 438 ; 62 L. J. Ch. 578.
 
 ACTIONS ON BILLS AND NOTES. 253 
 
 but it may be dispensed with under those circumstances which 
 
 render notice of dishonour unnecessary (/^). Protesting inland and inland 
 
 bills is unknown to the Common Law (/) ; and is stated by the 
 
 Bills of Exchange Act, 1882 (s. 51,sub-s. 2), to be unnecessary. 
 
 Since it has been decided that interest may be recovered on an 
 
 inland bill without protest {m), the practice has become quite 
 
 useless. 
 
 Expenses of noting and postage, incurred on the return of Noting and 
 an inland bill, must be specially laid {n). The Bills of Exchange ^°^ ^^^' 
 Act, 1882 (s. 51, sub-s. 1), provides that "where an inland bill 
 has been dishonoured it may, if the holder think, be noted for 
 non-acceptance or non-payment, as the case may be ; " and 
 s. 57, sub-s. 1 (c) provides that the damages for dishonour of a 
 bill shall include the expenses of noting, or, when protest is 
 necessary, and the protest has been extended, the expenses of 
 protest. 
 
 A party to a bill, who has been sued upon it, cannot recover Cost of former 
 the costs of the suit, in an action against the party who is liable 
 to him (o). 
 
 A party to a bill, who transfers it without indorsement, does Liability of 
 not warrant the solvency of the parties to it (p), and no action ^Jj^ ^^^^^ ^^^ 
 can be maintained against him, if it is dishonoured (q). He indorse. 
 does, however, warrant it to be such a bill as it purports to be. 
 Therefore, if it is forged (r), or if professing to be a foreign, it 
 is really an inland bill, and therefore void for want of a stamp, 
 the transferor must refund the amount received, though he was 
 ignorant of the defect, and though the bill would have been 
 paid, notwithstanding the defect, only for the bankruptcy of 
 the acceptor (s), or the laches of the holder (/). 
 
 (Jt) Rogers v. Stephens, '2 T. K. 713 : as to these circumstances, see Bicker- 
 dike V. Boilmnn. 2 8m. L. C. 8tli ed., 51. 
 
 (Z) 13vles on Bills, loth ed., 216 : Leftkij v. Mills, 4 T. R. 173. 
 
 (m) Windle v. Andreus, 2 1). & A. 696. 
 
 (?i) Hobhs V. Christmas, Byles on Bills, 13th ed. 264 : Kendrickv. Lomax, 
 2 C. & J. 405 : Dando v. Boden, [1893] 1 Q. B. 318 ; 62 L. J. Q. B. 339. 
 
 (o) See ante, p. 88. 
 
 [-p) Fe.nn v. Harrison, 3 T. R. 757. 
 
 ((/) Where, however, the holder of a bill payable to his order transfers it 
 for value without indorsing it, the transferee has a right to have the endorse- 
 ment of the transferor (Bills of Exchange Act, 1882, s. 31, sub-s. 4). 
 
 (r) Jones v. Rydc, 5 Taunt. 488. 
 
 {s) Gompertz v. Barthtt, 2 E. & B. 849. 
 
 (0 Wilson y. Vysar, 4 Taunt. 288.
 
 CHAPTER IX. 
 
 Actions for 
 rent. 
 
 1. Actions for Rent. 
 
 2. Actions on Covenant to Repair. 
 
 3. Actions on Covenant to Build or 
 
 Mine. 
 
 4. Actions on Covenant to pay Re- 
 
 newal Fine. 
 
 5. Actions on Covenant to Insure. 
 
 6. Actions on Covenant to pay Rates. 
 
 7. Actions on Covenant to deliver up 
 
 possession. 
 
 8. Actions on Covenant not to assign. 
 
 Tn a previous chapter I examined contracts relating to the 
 purchase or sale of land, and the damages which might arise 
 from their breach. In the present chapter I propose to collect 
 together those contracts which relate to the terms on which it 
 is to be held. The most universal and important of tliese is 
 the contract for payment of rent. Others, such as covenants 
 to repair, present important matter for consideration also. 
 Covenants for title, quiet enjoyment, and against incumbrances, 
 have been discussed before {a), as referring rather to the nature 
 of the thing parted with, than the manner in which it was to 
 be occupied. 
 
 I. Eent is generally a fixed sum, ressrved by a written in- 
 strument. In this case diflSculty can seldom arise, as the jury 
 have merely to give a verdict for the amount claimed for 
 arrears, and interest upon it from the time due (6). AVherc 
 there was a lease cf coal mines to the defendant, yielding and 
 paying yearly for every ton of coal that should be worked, 
 raised, or got in each year, not exceeding l.",000 tons in any 
 year, Sd. per ton, or yielding and paying that amount of 
 money, viz., 4odl. 6s. 8(L each year as fixed rent, whether the 
 coal should be Avorked or not, and also 1)^/. per ton for each ton 
 over and above that quantity : it was held that the whole rent 
 was payable, though the mine was so exhausted that the lessee 
 
 (a) Ante, p. 208, ct scq. 
 
 {I) 3 & 4 W. lY. c. 42, s. 28.
 
 ACTIONS FOR USE AND OCCUPATION. 
 
 255 
 
 aa airreenieat. 
 
 could not raise 13,000 tons of coal in a year (c). The only two 
 cases which ever admit of conflicting evidence as to the amount 
 to be received are, where the rent is claimed in an action for 
 use and occupation, and where a right to an apportionment is 
 set up. 
 
 1. Debt for use and occupation lay even at common law, Useandoccu- 
 although there had been a demise at a fixed rent, provided it 1'^*'°°' 
 could be treated as a mere agreement, and not a lease (d). 
 But by 11 Geo. II. c. 19, s. 14, it is lawful for a landlord, 
 where the agreement is not by deed, to recover a reasonable 
 satisfaction for the lands, &c., held or occupied by the defendant, 
 in an action on the case for the use and occupation of what is 
 so held or enjoyed ; and if in evidence any parol demise, or any 
 agreement (not being by deed) whereon a certain rent was re- 
 served, shall appear, the plaintiff in such action shall not there- 
 fore be nonsuited, but may make use thereof as evidence of the 
 quantum of the damages to be recovered. 
 
 "Where there has been an agreement settling the amount of Where there is 
 rent, of course the case is clear, and such agreement may be 
 proved for this purpose, though void as a lease by the Statute 
 of Frauds (e). Such an agreement, however, is only evidence 
 of the amount of rent to be paid, where the lessee has enjoyed 
 under it. And where the lessee took under an agreement 
 which he never signed, and the lessor failed to fulfil the agree- 
 ment, in the principal point which had induced the lessee to 
 propose becoming a party to it, the Court held that he could 
 scarcely be said to have so enjoyed. Accordingly, the jury 
 were at liberty to find any such value as they considered that 
 
 (c) Bute V. Thompson, 13 JL & W. 487 : R. v. Bcdworth, 8 East, 387 : 
 Jervis v. Toml-inson, 1 H. & N. 195 ; 26 L. J. Ex. 41. In an action recently 
 brought for breach of a covenant to dig an annual amount of not less than 
 1000 tons of potter's clay, an equitable plea that there was no clay, and tliere- 
 fore performance was impossilile, was held good, the covenant not being 
 considered to amount to a stipulation for a minimum rent in any event : Lord 
 Clifford V. Watts, L. R. 5 C. P. 577 ; 40 L. J. C. P. 36. Equity will not 
 relieve a tenant from his liability to pay rent after premises have been burnt 
 down or otherwise destroyed, even though the landlord have received funds 
 from an insurance office, and refused to rebuild : Lofft v. Dennis, 1 E. & E. 
 474 ; 28 L. J. Q. B. 168 : Saner v. BiUon, 7 Ch. D. 815 ; 47 L. J. Cli. 
 267 : Manchester Bonded Warehouse v. Oarr, 5 C. P. D. 507 ; 49 L. J. C. 
 P. 809. 
 
 (rf) Gibson V. Kirk, 1 Q. B. 850. 
 
 (e) De Medina v. Poison, Holt, 47.
 
 256 
 
 ACTIONS FOE USE AND OCCUPATION. 
 
 Value of pre- 
 mises may be 
 increased l>y 
 extrinsic cii- 
 cumstances. 
 
 whicli he had enjoyed to be worth (/). Even payment of rent 
 at a particular rate is only evidence of an agreement, and will 
 not be conclusive, where any facts show that such rate was not 
 intended to be permanent. A tenant was let into possession 
 of land during the currency of a term, the rent then being: 
 47Z., with an agreement that at the end of the term he was to 
 pay 80/. He paid the 47?., but disputes arising on the new 
 agreement, it was abandoned, and he continued to occupy. It 
 was held that the jury were to consider what was a fair rent for 
 the continued holding, and that no necessary inference could be 
 drawn from the former holding at 47/. (g). 
 
 The question as to the value of the premises is of course one 
 entirely for the jury. Some light may be thrown upon the 
 principles which should guide them in cases of difficulty, by 
 reference to cases decided under the acts for assessing to the 
 poor rates. It has been held for this purpose, that lands and 
 houses are rateable, not only with reference to what may be re- 
 garded as their present intrinsic value, but to any circumstance 
 which for the time increases the beneficial interest of the party 
 who enjoys them. Thus, where a small plot of ground was 
 rendered valuable by a mineral spring, and the buildings upon 
 it derived a profitable character from that circumstance, the 
 lands and buildings were held to be rateable with the spring, 
 at the profits which they produced in association (A). So where 
 any right is attached to the possession of a tenement, as a soke 
 mill, which is entitled to the sole multure of all the corn and 
 grain in the neighbourhood, or a canteen in a barracks, which 
 naturally attracts all the custom of the soldiers and their fol- 
 lowers («). And so where machinery is demised along with the 
 tenement, whether that machinery be real or personal pro- 
 perty {h). Of course there is this difference between the rules 
 to be observed in assessing for poor rate, and assessing for rent ; 
 tliat in the former case, the entire value of the tenements and 
 
 (/) Tomlinxon v. Day, 2 B. & B. 680 : Swatmcm v. Amllar, 8 Ex. 72 
 
 (<l) Thetford {Mcu/or of) v. Tyler, 8 Q. B. 95. 
 
 (/<) R V. Miller, Cowj). C19 : Mersey Docks v. Llancllian, 14 Q. B D 
 770 ; 54 L. J. Q. B. 49. 
 
 (0 R. V. Bradford, 4 M. & S. 317. 
 
 (/.■) R. V. St. Nicholas, Gloucester, Caldec. 262: R. v. //oyr/, 1 T. R. 721 : 
 7i'. V. Guest, 7 A. & E. 951 : Re;/, v. Haslavi, 17 Q. B. 2i6 : Re'i. v Lee 
 L. R. 1 Q. B. 241. "^
 
 ACTIONS FOR USE AND OCCUPATION. 257 
 
 their adjuncts is to be taken into consideration, whether such 
 additional vahie has been conferred upon them by the act of 
 the tenant himself or not ; but for the purpose of ascertaining 
 the rent due to the landlord, only such value as has been re- 
 ceived at the time of the demise can be taken nico account. 
 Otherwise the tenant would be paying a rent upon the outlay 
 of his own capital. But although the value of lands or tene- r.eneficial con- 
 ments consists not only in the land itself, but also in those J™'*,o'rd 'i^t 
 things which have been attached, so as to become part of it, paitofyaluc 
 the case is different where the increased value arises from a °^ premises, 
 contract by the landlord, to do something which will be bene- 
 licial to the occupier. For instance, to supply a public-house 
 with ale at fixed prices, or to provide a tenant with horses to 
 be used on or off the tenement as a moving power, or with 
 steam for the like purpose. The compensation for the pow'er 
 can in neither case form a part of the value of the subject of 
 the occupation (/). This is clearly a matter quite independent 
 of the demise, and in respect of which cither party may mam- 
 tain an action on the contract. 
 
 The annual value is properly estimated at the rent which a Annual value, 
 tenant would give, he paying the poor rates and the expenses °^^ estimate . 
 of repairs, and the other annual expenses for making the subject 
 of occupation productive ; if the subject of occupation be of 
 a perishable nature, or require an annual expense to secure 
 its existence, an allowance ought to be made on that account. 
 It is on this principle that buildings, machinery, canals, gas- 
 works, &c., are rated at a less proportion than arable or other 
 land (w). 
 
 AVhere the tenant has not come into possession under the Period for 
 
 , . , . , . , ■wlucli plaintiU 
 
 plaintiff, the latter can only recover for the tmie during which g^n recover. 
 he himself has had a legal title, although he may have had tho 
 
 {1} Per Parke, B., Rnhlnson v. Lcaroyd, 7 M. & W. 48: Sunderland 
 Parish v. Sunderland Union, 34 L. J. M. 0. 121. 
 
 (m) E. V. Loirer Mitton, 9 B. k C. 810 : Reg. v. Camlridge Gas Lirjlit Co., 
 
 8 A. & E. 73 : R. v. Adamcs, 4 B. k Ad. 61 : Dobhs v. G. J. IVaterioorls, 
 
 9 App. Gas. 49. An allowance slioukl be made for gi-ound-rent if paid by the 
 occupier : Barber v. Broivn, 1 C. B. N. S. 121 ; 26 L. J. C. P. 41, and for 
 the annual repairs of perishable farm-buildings and machinery, and in respect 
 of their contingent or future renewal or reconstruction when past repair : R. v. 
 Wells, L. R. 2 Q. B. 542. As to the case of surface land with machinery, 
 fixtures, &c., occuijied by the owner of the mine underneath, see Guest v. 
 East Dean, L. R. 7 Q. B. 334 ; 41 L. J. M. C. 129. 
 
 M.D. S
 
 258 
 
 ACTIONS FOR KENT. 
 
 Rent in general 
 cannot be 
 apportioned. 
 
 When rent 
 may be ap- 
 portioned at 
 common law. 
 
 Apportion- 
 ment by 
 .statute. 
 
 equitable estate, as assignee of the equity of redemption long 
 before (n). 
 
 2. The general principle of law is, that there can be no 
 apportionment of rent, except by the assent of the parties, 
 either in respect of a portion of the time, or a portion of the 
 property. Therefore where there has been a surrender or an 
 eviction in the middle of the period for which rent is payable, 
 the landlord cannot recover rateably for the shorter period 
 during which the tenant was in possession (o). Nor can he 
 recover any part of the rent, where he has himself evicted the 
 tenant from part of the laud : but where there has been a sur- 
 render of part of the land, or the lessor has entered upon part 
 for a forfeiture, or by special condition for entry, or the lessee 
 be evicted from part of the land by title paramount, the rent 
 should be apportioned (p). And so, where the reversion is 
 severed by a grant of part of the premises, the rent-service 
 incident to the reversion shall be apportioned (g). Possession 
 liy a tenant, who has been let in by the lessor under a lease of 
 prior date, and still in existence, is an eviction by superior title, 
 such as would create an apportionment of rent in favour of a 
 subsetjuent lessee. But where such lease lasts for the entire 
 term over which the subsequent lease was to extend, the lease 
 is utterly void as to that part, and the rent is not apportion- 
 able, and no distress can be maintained for it (r). No action 
 will lie for use and occupation of a part, where there has been 
 an eviction of another part by the lessor (s). 
 
 Various statutory provisions have passed, to remedy the evil 
 which arose on the determination of leases, by a death in the 
 middle of the current half-year. In such cases the rent for the 
 fractional period was wholly lost. The party who made the 
 lease, or his representatives, could not recover, because the rent 
 was never due ; and the person next entitled could not recover, 
 because the tenant had never been in possession of his land. 
 
 (w) Cobb V. Carpenter, 2 Camp. 13, n. 
 
 (o) Walls V. Atchcson, 3 Bing. 462 : Mall v. Burrjess. 5 B. & C. 332. 
 
 (p) Co. Lit. 148, a ; 3 Rep. 22, cmte, p, 215. 
 
 iq) Co. Lit. 148, a ; 13 Rep. 57, a. 
 
 (r) Neale v. Mackenzie, 1 M. & W. 747. 
 
 is) Reeve v. Bird, 1 C. iL & R. 36 ; overniling Stokes v. Cooper, 3 Camp. 
 514, n., contra. As to pleading eviction, see 1 Wms. Saund. 204, n. 2 ; 1 
 ^Yms. Notes to Saund. 209, n. 2.
 
 ACTIONS FOR RENT. 259 
 
 By the joint operation of 11 Geo. II. c. 19, s. 15, and 4 W. IV. 
 c. ^'2^ s. 1, in all cases in which a lease determines on the death 
 of the lessor (although not strictly tenant for life), or on the 
 death of the life during which the lessor was entitled, the 
 representatives of the lessor in the former case, or the lessor 
 himself in the latter may recover a rateable portion of the rent 
 growing due. 
 
 The next section of the last-named Act {V), provided that in 
 case of any rent-service reserved on a lease, made subsequent 
 to IG June, 1834, by a tenant in fee or for life, or person 
 demising under a power, and also, in case of all other rents and 
 fixed periodical payments of any description, payable under any 
 instrument executed, or (in case of a will) coming into opera- 
 tion after the same date, there shall be an apportionment 
 thereof on the death of any person interested in such rents, 
 4fcc., or on the determination, by any other means whatsoever, 
 of the interest of such person, so that he or his representatives 
 shall be entitled to a proportion according to the period since 
 the last payment. 
 
 The relief given by these Acts has been extended by the Appoiiion- 
 Apportionment Act, 1870, 33 & 34 Vict. c. 35. Section 1 "g^^Q^*"*' 
 enacts, that all rents, annuities, dividends, and other periodical 
 
 (<) 4 & 5 "W. IV. c. 22, s. 2. This Act was held only to apply to cases in 
 ■wViicli the interest of the person interested in rents and payments was deter- 
 mined by his death or by the death of another person ; but not to allow an 
 apportionment to be made between the real and personal representatives of a 
 tenant in fee : Broione v. Annjot, 3 Hare, 173 : Beer v. Beer, 12 0. B. 60 ; 
 21 L. J. C. P. 124 : Ex parte Chdoio, 3 K. & J. 689 ; 26 L. J. Ch. 513. 
 Seemingly it applied only to the death of the party entitled to the rent in 
 whose favour it was to be apportioned, not to the death of the party bound to 
 pay. The Court of Queen's Bench expressed a strong opinion that no apiior- 
 tionment could take place where the tenancy had been put an end to by the 
 act of the landlord : Oldershaw v. Holt, 12 A. & E. 590. In no case did the 
 statute apply to payments which were not due under some instrument in 
 writing: Re Markbi/, 4 lly. & Cr. 484 : Cattle y v. Arnold, 1 Johns. & H. 
 €51 ; 28 L. J. Ch. 352. It was held to apply to suits arising out of leases 
 made after the passing of the Act, but by virtue of powers contained in settle- 
 ments or wills executed or coming into o|)eratioa previous to that date. See 
 Lock V. Be Bur<jh, 4 De G. & Sm. 470 ; 20 L. J. Ch. 384 : Plummer v. 
 Whitcleii, Johns. 385 ; 29 L. J. Ch. 247 ; though in Fletcher v. Moore, 26 
 L. J. Ch. 580, an opinion to the contrary was expressed by Kindersley, V.-C. 
 See further as to the operation of this Act, St. Auhyn v. St. Auhi/ii, 30 L. J. 
 Ch. 917 ; 1 Drew & Sm. 611 : Mills v. Trumper,h. R. 1 Eq. 671 ; and as 
 to annuities, Trimmer v. Danhy, 23 L. J. Ch. 979 : Robinson v. Robinson, 2 
 Ir. C. L. R. 370. A mortgagee out of possession is not an assignee of the 
 mortgagor, nor entitled to an apportionment : Paget v. Anglesey, L. R. 17 
 Eq. 283 ; 43 L. J. Ch. 437. 
 
 S 2
 
 2G0 
 
 ACTIONS FOR KENT. 
 
 Tenant hold- 
 ing over after 
 noticj to quit 
 given by 
 himself. 
 
 "What notice 
 sufficient. 
 
 payments in the nature of income (whether reserved or made 
 payable under an instrument in writing or otherwise), shall, 
 like interest on money lent, be considered as accruing from day 
 to day, and shall be apportionable in respect of time accordingly. 
 And by section 2, the apportioned part of any such rent, 
 annuity, dividend, or other payment, shall be payable or recover- 
 able, in the case of a continuing rent, annuity, or other such 
 payment, when the entire portion of which such apportioned 
 part shall form part, shall become due and payable, and nob 
 before, and in the case of a rent, annuity, or other such pay- 
 ment determined by re-entry, death, or otherwise, when the 
 next entire portion of the same would have been payable if 
 the same had not so determined, and not before {u). 
 
 The legislature, with its usual anxiety to support the in- 
 terests of landlords, has also enacted some provisions with a 
 view to secure the recovery of their premises, when the period 
 of tenancy has expired. 
 
 By 11 Geo. II. c. 19, s. 18, if any tenant shall give notice 
 of his intention to quit the premises holden by him, at a time 
 therein mentioned, and shall not deliver up possession at such 
 time, he shall pay double the rent which he should otherwise 
 have paid, and so during his continuance in possession. 
 
 Notice by the tenant under this statute may be by word of 
 mouth (t). But it must state such an ascertained time as 
 Avould bind the landlord, and enable him to get another tenant. 
 Accordingly where the notice was that he would leave when he 
 got another situation, which he did get, this was held insuffi- 
 cient (u). And on the same principle of reciprocity, the notice 
 must be given by a tenant competent to determine his tenancy, 
 and at the proper distance of time necessary to make such a 
 
 (m) It has been held that this Act apiolics to all cases, whether the instru- 
 ment under which the case arises came into operation before or not till after 
 the passing of the Act : Cline's Estate, L. R. 18 Eq, 213 : Constable v. Con- 
 stable, 11 Ch. D. 681 ; 48 L. .1. Ch. 621. Also that in case of a devise of 
 real estate, the rents are apportionable between the executor and the devisee : 
 Capron v. Capron, L. R. 17 Eq. 288. And so in the case of a bequest of 
 stock, that the dividends are apportionable, first as betv,een executor and 
 devisee for life, and next between devisee for life and residuary legatee ; Pol- 
 lock V. Pollock, L. R. 18 Eq. 329. As to what comes under the term "divi- 
 dends," see Jones v. Ogle, L. R. 8 Ch. 192 ; 42 L. J. Ch. 334. 
 
 (x) Timmins v. Roiolinson, 3 Burr. 1603. The analogous Irish Act. 15 
 Geo. II. c. 8, s. 9 (Ir.), required written notice : Parrel v. Donnelli/, 4 Ir. 
 L. R. 476. 
 
 y) Parmnce v. Elhinr/ton, 2 Camp. 591.
 
 ACTIONS FOR RENT- 261 
 
 notice valid. Therefore, where a tenant, who could determine 
 his holding by a six months' notice, gave a shorter one, and 
 then held over, the landlord was not allowed to distrain for 
 double rent (z). 
 
 The 4th Geo. II. c. 28, s. 1, provides, that whenever any Holding over 
 tenant, or person coming into possession of land under a j^^*^^' "?,*^'^^ 
 tenant, shaU wilfully hold over after the end of the tei^m, and 
 after notice i/i 'writing for delivering up possession from his 
 landlord or lessor, or the person to whom the remainder or re- 
 version shall belong, he shall pay double the yearly value of 
 the premises. This statute, being a penal one, is to be strictly 
 interpreted. Where the defendant was tenant of a room in a 
 mill, through which the revolving shaft of a steam-engine 
 passed, it Avas ruled that in calculating the double value, the 
 value of the power of the steam-engine, which was supplied 
 by the landlord to turn the machinery by means of this shaft, 
 could not be taken into consideration. The Court said that 
 although the rent paid was an entire sum, part of it was paid, 
 not for the value of the occupation, but for the landlord's per- 
 formance of a contract to do something beneficial to the tenant. 
 If the landlord, by means of the tenant having held over, is 
 prevented from using the steam-power beneficially, and de- 
 prived of profit thereby, he has a remedy on his contract with 
 the tenant to give up at the end of the term, or for a trespass 
 in continuing to occupy, and may recover compensation for his 
 loss by way of special damage {a). 
 
 This statute, it will be observed, requires the notice to be in 
 writing {h). 
 
 The action for double value must be brought by the person who may sue. 
 standing in the position of landlord or lessor. It cannot, 
 therefore, be brought by a person to whom the landlord has 
 granted a fresh lease to commence from the expiration of the 
 former lease, and who is prevented from coming into pos- 
 session (c). The holding over must be contumacious, and not 
 under a 1)0110, fide though mistaken claim of right {d). 
 
 {z) Johnstone v. Hicddlestone, 4 B. & C. 922. 
 
 (a) Robinson v. Learoyd, 7 M. k. W. 48. 
 
 {b) See as to the requisites of such a notice, Parje v. Moore, 15 Q. B. 684. 
 
 (c) Blatrhford v. Cole, 5 C. B. N. S. 514 ; 28 L. J. C. P. 140. See as to 
 the landlord's right to recover from the old lessee the costs of an action 
 brought against him by the new lessee, ante, p. 96. 
 
 {d) Swinfen v. Bacon, 6 H. & N. 184, 846 ; 30 L. J. Ex. 33.
 
 2G2 
 
 ACTIONS FOR RENT. 
 
 Deduction on 
 account of paj- 
 nients made by 
 the tenant : 
 
 Should be 
 pleaded as 
 payment : 
 Should be 
 deducted from 
 rent next due. 
 
 The landlord's claim to rent is always liable to be reduced 
 by the amount of any payment necessarily made by the tenant, 
 in liquidation of a charge upon the land, or a debt due from 
 the landlord. Of this nature are payments made in respect of 
 ground-rent to the superior landlord (e) ; interest due upon a 
 mortgage prior to the lease (/; : an annuity charged upon the 
 land(^); property-tax (A) ; land-tax and paving-rates («"). 
 And it makes no difference that the landlord was not really 
 liable to the tax in question, if by his own laches in not estab- 
 lishing his exemption, the tenant has been forced to pay (Z"). 
 The amount so deducted must, however, be paid strictly in 
 exoneration of the landlord. Therefore where the plaintiff 
 demised land to the defendant upon a building lease, at the 
 rent of GO/., clear of all rates and assessments, the sewers-rate 
 and land-tax excepted, and the defendant, by building increased 
 the rateable value of the land to 300/. per annum, he was only 
 allowed to deduct the sewers-rate and land-tax upon the 
 original rent, and not upon the improved value (/). 
 
 Deductions of this sort are^^ro fern to, a payment of the rent, 
 and not a set-off, and should be pleaded accordingly (m). By 
 the express terms of the statutes, payments of land-tax, paving- 
 rates, and property-tax must be deducted from the rent due ; 
 and if the tenant pays the rent in full, witliout making such a 
 deduction, he is left without remedy (n). The same principle 
 appears to be laid down by Park, J. (o), as applicable to other 
 payments, as, for instance, of ground-rent. The reason is, that 
 when the entire rent is paid, where part only is really due, the 
 surplus is a voluntary payment with full knowledge of the facts, 
 and therefore not recoverable (jj). 
 
 (e) Sapsford v. Fletcher, 4 T. R. 511. See £oodle v. Cambell, 8 Sco. N. 
 R. 104 ; 7 M. & G. 386. 
 
 (/) Johnson v. Jones, 9 A. & E. 809. 
 
 (,7) TmjJor V. Zamira, 6 Taunt. 524. 
 
 (h) Biikcr V. Davis, 3 Camp. 474. 
 
 (i) Andrew v. Bancocl; 1 B. & B. 37. See as to deducting land-tax after 
 its redemption, iVoodi/ y. Dean and Chapter of Wells, 1 H. & N 40 • 25 L 
 J. Ex. 273. ^ J , , 
 
 ijc) Sicatman v. Ambler, 24 L. J. Ex. 185. 
 
 (l) Smith V. Humble, 15 C. B. 321. 
 
 (»i) Sapsford v. Fletcher, ubi sup. ; Denhj v. Moore, 1 B. & A. 123 - 
 Franliin v. Carter, 1 C. B. 750. 
 
 (n) Andrciv v. Bancocl.; iibi svj). : Stulbs 
 Cumminy v. Bedborouyli, 15 M. & W. 438. 
 
 (o) Carter v. Carter, 5 Bing. 409, 410. 
 
 ip) See 1 Sm. L. C. 163, 6th ed. ; 9th ed., p. 183. 
 
 Parsons, 3 B. & A. 516
 
 ACTIONS OX COVENANT TO REPAIR. 263 
 
 II. Covenants to repair may throw that obligation either 
 upon the tenant or the landlord. The tenant also may either 
 contract to keep in repair during the tenancy, or to leave in 
 repair at its determination. 
 
 1. When the tenant covenants to keep in repair, an action Actions against 
 may be brought for breach of covenant at any time during the ^anTto^ke^r* 
 continuance of the lease (q). And Lord Holt ruled that in in repair, 
 such a case the measure of damages was the amount it would 
 cost to put the premises into repair (r). This view, however, 
 has been departed from in later cases, and it has been ruled that 
 the measure of damages is the extent to which the marketable 
 value of the reversion is injured. This would be very great if 
 the lease was near its expiration ; very small if it had a long 
 time to run (s). And this rule has repeatedly been affirmed in 
 very recent cases (/). It is also held to be the true principle for 
 assessing damages, where the reversioner sues the tenant upon a 
 covenant, express or implied, not to commit waste {u). The 
 case of Marriott v. Cotton as reported at Nisi Prius (.r) seems 
 opposed to this rule. The action was upon a contract to repair. 
 Plea that the premises were in good repair until they were acci- 
 dently burnt down, and verdict for the defendant upon this plea. 
 Damages were to be assessed contingently, in case the plea 
 should be held bad, and Ptolfe, B., directed nominal damages. 
 He said that otherwise, as the action was brought duriug the 
 tenancy, the plaintiff might put the money into his pocket, and 
 then bring another action for non-repair, in which, on the 
 principle contended for by the plaintiff, he would be entitled 
 again to recover substantial damage. But it appears that in a 
 subsequent stage of the case this ruling was reversed, and that 
 substantial damages were entered up (//). 
 
 (q) Luxmore v. Rohson, 1 B. & A. 584. A covenant to put in repair can 
 only be broken once : and when damages have been once recovered in respect 
 of that breach, no more can be recovered : Coioard v. Grojory, L. R. 2 C. P. 
 l.>3 ; 36 L. J. C. P. 1. 
 
 (?•) Vivian v. Champion, 2 Ld. Ilayra, 1125. 
 
 (s) Doe d. Worcester School Trustees v. liouiands, 9 C. & P. 734 : Smith 
 V. Peat, 9 Ex. 161 ; 23 L. J. Ex. 84. 
 
 (0 Mills V. East London Union, L. R. 8 G. P. 79 ; 42 L. J. C. P. 46 ; 
 Williams v. Williams, L. R. 9 C. P. 659 ; 43 L. J. C. P. 382 : Henderson 
 V. Thorn, [1893] 2 Q. B. at p. 166. 
 
 (u) Whithain v. Kershaw, 16 Q. B. D. 613. 
 
 (x) Marriott v. Cotton, 2 C. & K. 553. 
 
 {y) In Bell v. Hayden, 9 Ir. C. L. Rep. 301, where substantial damages
 
 264 
 
 ACTIONS ON COVENANT TO REPAIR. 
 
 Damages on 
 
 covenant to 
 keep in repair. 
 
 On the other hand, it has been said that the rale laid down 
 in Doe v. Roivlands, that the injury to the marketable value of 
 the reversion is the measure of damages, is not of universal 
 application. In a case Avhich was much considered in Ireland, 
 the lease, containing a covenant to keep in repair by the lessee, 
 had, at the time of action brought, more than eight hundred 
 years to rim. It was argued that the lessor was only entitled 
 to nominal damages, the measure of damages being not the 
 amount which would restore the premises to their pristine con- 
 dition at the date of the lease, but the amount of injury done 
 to the reversion, and that one shilling laid out at interest would 
 at the end of eight hundred years far exceed the sum which 
 the plaintiffs could then claim. Mazier Brady, C, after ex- 
 pressing doubts both of Marriott v. Cotton, and Doe v. Row- 
 Icmds, and remarking on the difficulty of saying what upon the 
 authorities should be the measure of damages, refused to say 
 that nominal damages only could be recovered, and left it 
 generally to the master to ascertain the amount of damage 
 sustained by the plaintiff in consequence of the dilapidations {z). 
 And shortly afterwards in England, where a lessee sued his 
 sub-lessee for breach of a covenant to keep in repair, he was 
 held entitled to recover substantial damages although he had 
 no reversion, the lessor having ejected both lessee and sub- 
 lessee for non-payment of rent. Bramwell, B., said, that the 
 criterion of damage proposed, namely, the diminution in value 
 of the reversion was a very good test, but not the only test of 
 the damages to be recovered ; and Watson, B., said " the 
 damages recovered are usually such as are sufficient to put the 
 premises into repair. As a matter of fact it is never proved 
 in evidence to what extent the reversion is damaged " {a). 
 
 It is to be observed upon this latter case, as Pollock, C. B., 
 pointed out, that although the plaintiflf had been ejected by his 
 lessor for non-payment of rent, he still continued liable upon 
 
 were recovered pending the term, O'Brien, J., stated that he had procured 
 from the offices of the Queen's Bench in England, copies of the orders made in 
 Alarriott v. Cotton, and that the case went to the court above, and the verdict 
 for nominal damages was set aside, and a verdict entered for substantial 
 damages. 
 
 (2) Macnamara v. Vincent, 2 Ir. Ch. Rep. 481. See as to damages for 
 breach of covenant to repair by lessee under a fee-farm grant in Ireland, 
 where there is no reversion : Lombard v. Kennedy, 23 Ir. L. Rep. Ch. 1. 
 
 (a) Davies v. Underwood, 2 H. & N. 570 ; 27 L. J. Ex. 113.
 
 ACTIONS ON COVENANT TO REPAIR. 265 
 
 his own covenant to repair. The damages to which his lessor 
 would have been entitled, would have been the amount neces- 
 sary to put the premises in repair ; for this amount would 
 exactly measure the injury to his reversion. Obviously, there- 
 fore, he was entitled to receive exactly the same amount from 
 his sub-lessee. As "Watson, B,, put it, " the true foundation of 
 the action is, not that the reversion is, but that it ma// he 
 damnified by the conduct of the lessee." The plaintiif was 
 entitled to say to his sub-lessee, " My reversion was substantially 
 injured by your fliilnre to repair. The fact that I have subse- 
 quently lost the reversion has neither lessened the injury done 
 to me, nor affected your obligation to pay for that injury." In 
 the Irish case, too, it is obvious that the length of the term 
 was no reason why the reversion might not fall in at once ; 
 e.g., from non-payment of rent, or other cause of forfeiture. If 
 so, the argument for the defendant fell to the ground. 
 
 When the landlord is forced to repair himself, in the middle When landlord 
 of his tenant's term, in order to save a forfeiture of his own repaired, 
 estate to his head landlord, it seems that the damage he Avill be 
 entitled to recover will depend upon the covenant on which 
 he sues. If there is a covenant to repair after notice, and he 
 has given notice to his sub-lessee, and the time has expired, 
 and he has then entered liimself and repaired, the measure of 
 damages will be the eust of such repairs, so far as they are fit 
 and necessary. And it is not necessary for the plaintiff to 
 prove that the defendant assented to the repairs being done by 
 him, because, if there is no assent the plaintiffs would be 
 trespassers and liable to an action for the entry {b). In such 
 a case it would not operate in mitigation of damages, that 
 the plaintiff had, before the commencement of the action, 
 assigned the premises to a thiLxl party, who pulled them 
 down and entirely rebuilt them. The injury was done when 
 his breach of covenant compelled the plaintiff to lay out 
 money (c). But if he sues upon the general covenant to repair, 
 after giving notice under the special covenant, but before the 
 time fixed by the notice has expired, it has been held that he 
 can only recover nominal damages ; because he cannot recover 
 under the special covenant, and under the general covenant he 
 
 (6) Colley v. Streeton, 2 B. & C. 273. 
 [c) Ibid., ubi sup.
 
 266 
 
 ACTIONS ON COVENANT TO EEPAIR. 
 
 "When damage 
 was before exe- 
 cution of lease. 
 
 Damages 
 against assig- 
 nee of lease. 
 
 Proof of dis- 
 repair. 
 
 cannot show that there has been any damage done to the rever- 
 sion (rf). Probably in this case it was thought that the notice 
 calling upon the defendant to repair within two months under 
 the special covenant, operated as an election to proceed under 
 that covenant, and estopped the plaintiff from demanding sub- 
 stantial damages until the exph'ation of the time fixed by him- 
 self. But I do not imagine that the existence of a special 
 covenant to repair after notice would prevent the landlord from 
 recovering full damages in a s.iit upon the general covenant to 
 repair, if he chose to rely exclusively upon it. 
 
 The interest in premises passes from the execution of the 
 lease, though the duration of the term may date from some 
 anterior period. Therefore, where the tenant entered upoa 
 the premises in June, and the lease was executed in Novem- 
 ber, hahmdnm from June, with covenant to repair : an action 
 was brought upon the covenant, the breach being that he pulled 
 down and altered the premises between June and November ; 
 it was held that only nominal damages could be recovered {e). 
 
 The assignee of a lease is, of course, only liable for breach 
 of covenants committed during his own holding. But where 
 the lease has passed through several hands, and the premises 
 are out of repair Avhen the action is brought, and are proved 
 to have been so when they were held by the defendant, it will 
 be for him to show how much of the injury arose subsequent 
 to his occupation. And in default of evidence by him, the 
 jury may assess the damage at the whole amount to which he 
 would have been liable, had all the dilapidations taken place in 
 his own time (/). 
 
 Of course strict proof must always be given of the amount 
 of disrepair. Accordingly, where a county court judge told 
 the jury that this action was not like one for goods sold and 
 delivered, and that the plaintiff' might rest upon general 
 evidence in support of his particulars of demand, without 
 proving every item, especially as the jury had viewed the 
 premises with the particulars of demand in their hands, and 
 would therefore be able to judge if the plaintiff had made out 
 his case, — a new trial was granted {g). 
 
 (d) Williams v. Williams, L. 11. 9 C. P. 659 ; 43 L. J. C. P. 382. 
 
 (e) SJiair V. Kay, 1 Ex. 412. 
 
 (/) S7iiith V. Peat, 9 Ex. 161 ; 23 L. J. Ex. 81. 
 (g) Smith v. Douglas, 16 C. B. 31.
 
 ACTIONS ON COVENANT TO REPAIR. 267 
 
 A yendor of real estate, who has contracted to sell, is a trustee Liability of 
 for the purchaser to this extent at all events, that if he has the [anV ° 
 property in his possession or under his control he is bound to 
 keep it in a reasonable state of repair, so that the purchaser 
 may take the thing he has contracted to buy, unless there are 
 some special circumstances which alter that obligation. There- 
 fore if the vendor fails to give possession at the time fixed for 
 completion, any injury accruing to the premises in the interval 
 before actual jDOSsession is handed over may be recovered by 
 the purchaser, either l)y way of damages, or compensation in 
 the nature of damages (h). 
 
 2. "Where the action is brought upon the covenant to re- When action 
 
 pair at the end of the term, the damages are such a sum as 1? ■'^'""f *f* 
 ■■■ _ _ ' ° tlie end of the 
 
 Avill })ut the premises into the state of repair in which the term. 
 tenant was bound to leave thera (/) ; where, beside the covenant 
 to repair, there is also a covenant to insure against fire for a 
 specific sum, the defendant's liabihty, in case of the premises 
 being burnt down, is not limited to this sum. Ths condition 
 is only intended as an additional security to the landlord (/•), 
 And it makes no difference that, owing to a change in the 
 character of the buildings or of the neighbourhood, the 
 premises would let at as high a rent as before, although the 
 covenant was not strictly complied witli (?), nor even that 
 the lessor had granted a lease to a third person to run from 
 the expiration of the defendant's lease, so that in reality the 
 performance of the defendant's covenant was a matter of 
 pecuniary indifference to him (m). The obligation of the 
 defendant to perform his agreement cannot be aifected by 
 circumstances external to himself, or arrangements to which he 
 was no party. The defendant, however, is not liable to pay for 
 improved modes of doing the work, by means of which the 
 
 (/() Phillips V. Silvester, 8 Ch. 173 : Royal Bristol Building Society v. 
 Bomash, 35 Ch. D. 39U ; 56 L. J. Ch. 840. 
 
 (i) Woodhouse v. Wallcer, 5 Q. B. D. at p. 403 ; 49 L. .1. Q. B. at p. 612 : 
 Whitkam V. Kn'shiiw, 16 Q. B. D. at p. 616. In a very recent case it was 
 considered right to deduct from this sum an amount which the landlord had 
 recovered by action during the term, but had not expended on repairs : 
 Henderson v. Thorn, [1893] 2 Q. B. 164. 
 
 {k) D'igby v. Atkinson, 4 Camp. 276. 
 
 {I) Moryan t. Hardy, 17 Q. B. D. 770 at p. 779 ; reversed on another 
 point, 18 Q. B. D. 646 ; 13 A. C. ;5.ol ; 58 L. J. Q. B. 44. 
 
 (m) Joyner v. Weeks, [1891] 2 Q. B. 31 ; 60 L. J. Q. B. 510.
 
 268 
 
 ACTIONS ON COVENANT TO REPAIR. 
 
 Subsequent 
 erections. 
 
 Wlien plain- 
 tiff's interest 
 has ceased. 
 
 Damages 
 arising from 
 premises 
 remaining 
 unlet. 
 
 Damages 
 must arise 
 from the 
 defendant's 
 neglect. 
 
 parts repaired arc more durable than they were on their former 
 principle of construction (n). 
 
 AVhen the covenant is only to repair the demised premises, 
 the defendant is not bound to repair any buildings afterwards 
 erected, even though he was wrong in erecting tliem, and no 
 damages can be recovered in respect of the disrepair into which 
 they may have faUen (o). 
 
 It is no answer to a claim for dilapidations, that the plain- 
 tiff's interest in the premises has ceased. The plaintiff may 
 be liable over to his superior landlord ; but independently of 
 this, the objection cannot be set up by a party who is himself 
 in fault (p). 
 
 A tenant ^vho has failed to make the repairs to which he was 
 bouud, is liable to his landlord for the damages arising from 
 the time the landlord is unable to re-let the premises, even 
 though there were substantial repairs which the landlord him- 
 self was bound to make. Because, if the defendant had laid 
 out the money before he quitted, the plaintiff might have 
 occupied the premises himself (§'). 
 
 Of course no claim can be maintained for any damages 
 which do not flow immediately from the defendant's neglect. 
 For instance, the plaintiff' held land under several covenants, 
 one of which was a covenant to repair, with a right of entry 
 by the landlord on breach of the covenants, and made a 
 sub-lease to the defendant with a covenant to repair, which 
 ■was broken by the defendant. The head landlord ejected the 
 plaintiff for breach of all the covenants, including that violated 
 by the defendant. It was held that the plaintiff could not 
 
 («,) Soward v. Lecjgatt, 7 C. & P. 613. 
 
 (o) Doe d. Worcester School Trustees v. Boiolands, 9 C. & P. 734. Every 
 such covenant must be construed according to its jjarticular words : Cornishy. 
 Cleifc, 3 H. & C. 446 ; 34 L. J. Ex. 19 ; and sometimes a distinction may 
 exist between a liability to repair newly-erected houses and a liability to repair 
 newly-erected additions to existing houses ; ^cr Bramwell, B., lb. 
 
 (p) Clow V. Brorjdm, 2 M. & G. 39 ; and see Lavies v. Undcricnod, ante, 
 p. 264. In another case, a lessor recovered substantial damages for dilapida- 
 tions, although at the expiration of the term the premises were pulled down 
 under a verbal arrangement for that purpose made previously with a proposed 
 new lessee. In this case the Court laid stress on the fact that the agreement 
 with the proposed new lessee was verbal only, and therefore not binding on 
 either party : Raiclimjs v. Moryan, 18 C. B. N. S. 776 ; 34 L. J. C. P. 185 ; 
 but the case of Joyner v. Weeks, supra, shows that this fact was really un- 
 important. 
 
 (Si) Woods V. Pojpe, 6 C. & P. 782 ; 1 Bingh. N. C. 467.
 
 ACTIONS OX COVENANT TO REPAIR. 
 
 269 
 
 recorer from the defendant the vahie of the term so forfeited, 
 since there were other breaches besides those in the defendant's 
 lease, and it did not appear on which of them the ejectment had 
 turned. And Maule, J., and Bosanqnet, J., donbted whether, 
 in any case, the sub-tenant could be liable in such an action 
 for all the consequences to his landlord of a breach of covenant 
 contained in a lease to which he was not himself a party (r). 
 
 In estimating the amount of damages, it is, of course, im- 
 portant to know what state of repair the tenant was bound to 
 put the premises into. Where the covenant is, "to put the 
 premises into repair," this clearly means to put them into a 
 better state of repair than the tenant found them in (s). It 
 has also been decided, however, that a covenant to " keep " in 
 repair involves a covenant to put in repair. For they cannot 
 be kept in good repair without being put into it (t). But the 
 amount of repair, of course, depends on the age and class of 
 the house, and must differ as that may be a palace or a 
 cottage, N"o one is bound to give his landlord a new house 
 instead of an old one (u). A house in Spitalfields may be 
 repaired with materials inferior to those requisite for repairing 
 a mansion in Grosvenor Square (.r). And, accordingly, where 
 a lessee took premises, which at the time were old and out of 
 repair, under a covenant to repair ; and they were destroyed by 
 fire, and it appeared that the cost of re-instating them would 
 amount to 1,(53.3/., but they would then be more valualile by 
 000/. than they were at the time of the fire ; it was decided 
 that defendant was only liable to pay 1,035/., that being the 
 amount which the jilaintiff had really lost (ij). This is all 
 
 Meaning of a 
 covenant to 
 repaii". 
 
 What amount 
 of repair is 
 necessary. 
 
 (r) Cloivv. Broqden, u/n sup., 2 Sco. N. K. 303, 314, S. C. 
 
 (s) Belcher v. liplntosh, 8 C. & P. 720. 
 
 {t) Pavnc V. Ilainc, 16 M. & W. 541 : Easton v. Pratt, 2 H. & C. 676 ; 
 S3 L. J. Ex. 31, 233, in Ex. Ch. : Proudfoot v. Hart, 25 Q. B. D. at p. 50 : 
 59 L. J. Q. B. 3S9. 
 
 {u) Per Alderson, B., Belcher v. iM'Tntosh, 8 C. & P. 723 ; per Vrj, J., 
 Saner v. Bilton, 7 Ch. D. at p. 821 ; per Erie, C. J., Easton v. Pratt, 33 
 L. J. Ex. 233, at p. 235 ; 2 H. & C. 676 : Ponfifcx v. Foord, 12 Q. B. D. 
 152 ; 53 L. J. Q. B. 321 ; followed Catton v. Bennett, 26 Ch. D. 161, at 
 p. 166 ; 53 L. J. Ch. 685. 
 
 (x) Per Parke, B., Payne v. ffaine, 16 JI. & W. 545 ; 2-^'' Loi'd Esher, 
 M.R., 25 Q. B. D. p. 51. 
 
 (?/) Yates V. Buustcr. 11 Ex. 15 ; 24 L. J. Ex. 226. But was not this 
 6001. something which the plaintiff' had contracted to gain ? The covenant 
 to repair implied that the premi.ses were to be made more valuable, perhaps 
 by this very 600/., than they had been before.
 
 270 ACTIONS ON COVENANT TO REPAIR. 
 
 quite clear ; but a more difficult question arises as to how far 
 evidence of actual disrepair, as distinguished from mere in- 
 feriority, may be admitted. The rule laid down in Stanley v. 
 Toicgood (s), and Mantz v. Goring (a), and approved of in 
 Eviiience of Payne v. Haine (b), was that evidence might be given as to 
 previous dis- ^^iq age and class of the premises, with their general condition 
 
 repair. ° ^ 
 
 as to repair- ; but that the defendant could not prove in detail 
 that such and such a part was out of order. Burdett v. 
 Withers {c) has been thought to go beyond this. There the 
 defendant's counsel wished to cross-examine as to the state of 
 the premises at the time of his coming into possession. The 
 evidence was refused, and a new trial was granted in conse- 
 quence. Lord Denman said, " It is very material with a view 
 both to the event of the suit, and the amount of damages, to 
 show what the previous state of the premises was." And in 
 Payne v. Haine, Alderson, B., says, " The marginal note {d) 
 of Burdeit v. Witl/ers, may be incorrect ; but the judgment is 
 quite right, and shows that a lessee who has contracted to keep 
 demised premises in good repair, is entitled to prove what their 
 general state of repair was at the time of the demise, so as to 
 measure the amount of damages for want of repairs by refer- 
 ence to that state." This reconciles that case with the others 
 mentioned liefore. The question, therefore, for the future will 
 probably be, not so much as to the admissibility of such 
 evidence, as the purpose to which it may be applied. Since 
 Payne v. Haine, a tenant cannot justify keeping premises in 
 bad repair, because tliey happened to be in that state when he 
 took them. But evidence of this nature, like evidence of age, 
 will be admissible to show how far they were capable of being- 
 repaired at all, and what amount of repair could have been 
 contemplated by the covenant {e). In other words, a house is 
 
 {z) 3 B. N. C. 4. 
 {a) 4 B. K C. 451. 
 (h) 16 M. & W. 545. 
 
 (c) 7 A. & E. 136. 
 
 (d) " The defendant is entitled to prove at the trial what the state of the 
 premises was at the time of the demise. " 
 
 (e) See 7/«rr(*' v. Jones, 1 M. & Rob. 173, and Guitcridfje v. Munyard, 
 ib., 334, 336, where Tindal, C. J., says, " Where a very old building is de- 
 mised, and the lessee enters into a covenant to repair, it is not meant that the 
 old building is to be restored in a new form at the end of the term, or of 
 greater value than it was at the commencement of the term. "What the
 
 ACTIONS ON COVENANT TO REPAIR. 271 
 
 like a ship, which varies in class according to its original con- 
 struction, and which descends in class by age and wear and 
 tear, and general deterioration. A tenant is not allowed to 
 say, " I found the house out of repair, and therefore I left it 
 out of repair, or put it into imperfect repair." But he is 
 allowed to show that either by original construction or by 
 lapse of time, the house was one of class C, and not one of 
 class A., and that he had done to it such repairs of an accessory 
 character, such as fitting and the like, as were suitable to class 
 C, and such repairs of a substantial and structural character as 
 were sufficient to keep it in that classasfar as possible. To do any- 
 thing more would be to raise the house to a different class (/ j. Assignee of a 
 
 The doctrine of Payne v. Hainc will be peculiarly difficult ^^^'^' 
 of application in the case of assignees of a term, where the 
 original lease contained covenants to repair. Each assignee 
 is only liable for breach of covenant committed during his 
 own holding. But if he is bound, not only to keep the 
 premises in as good repair as he got them, but to put them 
 into better where there is actual disrepair, he will in effect be 
 liable for all the breaches of his predecessors. In the case of 
 Smith T. Peat (g), it is said he might be called to prove the 
 state of the premises at the time of the assignment to him. But 
 it is clear that that dictum must be taken with some limitation. What is 
 
 The meaning of the words " tenantable repair " was much dis- 
 cussed in the case of Proudfoot v. Hart (Ji). There Cave, J., 
 appears to have been of opinion, that a tenant, under such a 
 covenant, was only bound to execute such repairs as were neces- 
 sary to keep the fabric together, and Mathew, J., said " He is 
 not bound to repair what is worn out by age, nor to restore it, 
 nor to replace anything that is worn out by age." Accordingly 
 they considered that painting, papering, whitewashing, and 
 flooring were only obligatory for the purpose of keeping the 
 building together. This view of the law was reversed on appeal. 
 The term "good tenantable repair " was defined as meaning 
 " such repair as, having regard to the age, character and locality 
 
 repair. 
 
 natural operation of time flowing on effects, and all that the elements bring 
 about in diminishing the value, constitute a loss, which, so far as results from 
 time and nature, falls on the landlord." 
 
 (/) See an able article in the Solicitors' Journal for 1875, p. 727. 
 
 (7) 9 Ex. 161 ; 23 L. J. Ex. 84. 
 
 ('/<) 25 Q. B. D. 42 ; 59 L. J. Q. B. 389.
 
 272 
 
 ACTIONS ox COVENANT TO REPAIR. 
 
 Fxpenses of 
 survey. 
 
 E^pairs of 
 
 p:ui.y-wall. 
 
 "Where tliere 
 is a condition 
 pvecedeut. 
 
 of the liouse, would make it reasonably fit for the occupation of 
 a reasonably minded tenant of the class who would be likely to 
 take it." An outgoing tenant is not bound to paper, paint, 
 whitewash, &c., for purposes of decoration, or for the purpose 
 of leaving the premises in the same new and clean condition in 
 Avhich he found them. Nor is he bound to do so merely because 
 the paper and paint have worn out, and the ceilings have grown 
 black, if an ordinary incoming tenant would be content with 
 them as they are. He must execute such repairs if the walls, 
 wood-work, &c., would perish if they were not executed. But 
 even beyond this, if by wear and tear the condition of the house 
 has become such as not to satisfy a reasonably-minded tenant 
 of the class who would be likely to take the house, then he must 
 repaper and repaint, and execute all other kinds of superficial 
 repair, so as to make the premises reasonably fit, within the 
 definition, for the occupation of such a tenant. 
 
 The expenses of survey are usually born by the landlord, 
 unless there be some special agreement to the contrary. There- 
 fore, in an action for Ijreachof covenant, by the dilapidation of 
 premises, the landlord is not entitled to be allowed the expenses 
 he has been put to in ascertaining what has been the extent of 
 injury sustained (i). 
 
 A tenant was not liable, on his general covenant to repair, 
 for the repairs of the party-wall eftected under 14 Geo. III. c. 
 78 {Ic), except so far as they were rendered necessary by his 
 own default, and it was for the landlorl to establish the cir- 
 cumstances under which he claimed to charge the tenant with 
 any proportion of the expense so incurred (/). 
 
 The landlord's claim to recover for breach of a covenant to 
 repair may depend on the performance of some condition pre- 
 cedent, such as putting the premises in repair himself (m). 
 Such a condition when applied to a single house and premises 
 
 (i) So ruled by Field, .J., Loijan v. C'o.r, May, 1876. The case is not 
 reported, but the learned Judge has kindly allowed me to state the ruling on 
 his authority. J. D. M. The expenses of survey can hoM'ever be recovered 
 by the landlord when the defendant obtains relief under the Conveyancin<' 
 Acts. See 55 & 56 Vict c. 13, s. 2 [1892]. 
 
 (A-) Repealed by 28 & 29 Vict. c. 90, s. 3d. 
 
 (/) Moore v. Clark, 5 Taunt. 90. 
 
 (m) Neale v. Ihitdiff, 15 Q. B. 916 ; Coward v. Gregory, L. R. 2 C. P. 
 153 ; 36 L. J. C. P. 1. See, as to the tenant's right to timber, Bristol {Lean 
 and Cliapte?-) v. Jones, 1 E. & E. 484 ; 28 L. J. Q. B. 201.
 
 ACTIONS ON COVENANT TO EEPAIR. 273 
 
 is indivisible, and where the landlord has only repaired a part, 
 he cannot recover for non-repair by the tenant, even of the 
 very part which he has put into repair. But if the covenant 
 applied to two separate dwelling-houses, of which one might be 
 completely enjoyed, though the other was not in a condition 
 for proper occupation, the covenants would be divisible, and 
 the performance of one part would, it seems, entitle to an 
 action for the non -performance of the corresponding part of 
 the covenant (n). 
 
 When one count of a declaration stated an agreement by 
 plaintiff and defendant to take certain premises, subject to a 
 covenant to repair, and alleged non-repair ; the second count 
 stated, that in consideration that defendant was tenant to 
 plaintiff of a certain other messuage, he promised to use it in 
 a tenant-like manner, laying as a breach that he had made 
 holes in the walls, &c. : one demise only as to one house was 
 proved ; it was held that damages could not be recovered on 
 both counts, as they must be taken to refer to different 
 messuages (o). 
 
 3. Covenants to repair on the part of the lessor present no Action against 
 distinction as to the amount of damages that may be recovered. ^^^ '®^^°'^' 
 In an action by the tenant on such a covenant, it was held that 
 he could not recover as special damage, rent, taxes, and other 
 sums laid out upon a house into which the plaintiff was forced 
 to move, while his own was uninhabitable. Because, although 
 the defendant covenanted to repair, he did not covenant to find 
 him another house while the repairs were going on, any more 
 than he would have been bound to do so if the premises had 
 been consumed by fire (^). But an allowance might be made 
 for the additional time during which he was obliged to be in 
 another house, on account of defendant's delay in commencing 
 repairs (q). Where the defendant covenants to repair part of 
 the premises only, injury done to the other parts by the non- 
 repair of the former may be recovered if it resulted from 
 neglect on the defendant's part (r). It was ruled in one case, 
 
 (n) Neale v. BatcUfe. 15 Q. B. 916. 
 
 (o) Holford V. Dunndt, 7 M. & W. 348. 
 
 (^) Green v. Bales, 2 Q. B. 225. 
 
 iq) Ibid. 
 
 {r) Ibid. 
 
 M.D
 
 274 
 
 ACTIONS OX COVENANT TO BUILD. 
 
 that if the i^remiscs became more out of repair after the 
 
 commencement of the action, the jury might consider this in 
 
 assessing damages (s). This, of course, only appHes where the 
 
 defendant is still liable. 
 
 Effect of pre- In a later case the action was brought by the assignees of 
 
 vious recovery ^ bankrupt lessee against the representatives of the lessor, for 
 of damages. i o i 
 
 breaches of covenants to put premises in repan- and keep them 
 
 in repair. Tlie defendants, 'infer alia, pleaded to the breach of 
 covenant to keep in repair, for a defence on equitable grounds, 
 that the lessee had recovered a sum of 1080/. in an action for 
 breaches of the covenants to put and keep in repair, and that 
 if he had expended that sum in putting the premises in repair, 
 the want of repair now complained of would not have existed. 
 Upon demurrer it was held that this was a bad plea, and that 
 the matters alleged in it did not amount to a bar of the action, 
 but went in mitigation of damages (/)• 
 
 III. Building and Mining covenants. For breach of these, 
 the only criterion is the amount of damage the plaintiff has 
 suffered by the diminished value of the premises. Plaintiff 
 agreed to let defendant land for ninety-eight years, from 1835, 
 at a pepper-corn rent for three years, and afterwards at 115?. 
 per annum. Defendant was to build on the ground in three 
 years, and theu accept a lease. There was a proviso for re- 
 entry in case of default. Defendant did not build, and in 1839 
 plaintiff got possession of the land. He then demised to B. 
 for the residue of defendant's term, at a pepper-corn rent for 
 the year ending Midsummer, IBiO ; 70/. for the next year, and 
 140/. for the rest of the term. He then sued defendant for 
 breach of agreement to build ; and, amongst other things, 
 claimed as damages the difference between the rent which he 
 would have obtained up to 1S41, had the defendant kept his 
 agreement, and that which he was to obtain from the new 
 tenant : — Held, that the jury were not bound to give him that 
 difference ; that the real measure was the damage he had on the 
 whole sustained, and that in estimating this they must consider 
 the new agreement he had entered into. Accordingly they 
 
 Actions for 
 breach of 
 buildiug cove- 
 nunts. 
 
 (s) Shorthridrfe x. Lamplu^h, 2 Ld. Kaym. 803 ; see ante, p. 108. 
 
 (t) Coward V. Grecjory, L. R. 2 C. P. 153 ; 36 L. J. 0. P. 1. For a 
 converse case of lessor against lessee where the lessor had recovered during 
 the term, see Henderson v. Thorn, ante, p. 267, n.
 
 ACTIOXS ON COVENANT TO MINE, 275 
 
 found that no damage had accrued beyond 21, which had been 
 paid into Court (u). 
 
 In a later case, the action was on a contract, by which the Covenants to 
 defendants agreed that if the plaintiff would surrender to his "^^°*^" 
 lessor the land then in his possession, they would, on obtaining 
 a lease of it to themselves, sink a shaft to the depth of 130 
 yards in search of coal, and if they found a vein of marketable 
 coals, would pay the plaintiff 2,500/. The defendants never 
 sank a shaft. Evidence was given that if a shaft had been 
 sunk to the depth of 130 yards a vein of marketable coal would 
 have been found : the cost of such a shaft would have been 
 2,600/. The judge told the jury that the plaintiff had a right 
 to have a pit sunk to the depth agreed on at the defendant's 
 cost, and that they ought either to estimate the damages with 
 reference to the expense of so doing, or might give the amount 
 which would have become payable on the contingency. A 
 verdict was given for 2,500/. A rule to enter nominal damages 
 was refused. Pollock, C.B., Alderson, B., and Martin, B., 
 gave no opinion as to which alternative in the judge's ruling 
 was most con-ect. Parke, B., inclined to think that the 
 expense of sinking the pit was a wrong criterion of damage, 
 because the plaintiff could not go upon the land and make it. 
 But at all events, he said, this was a case for more than nominal 
 damages ; and as the defendants had been instrumental in 
 preventing the discovery of marketable coal, they ought to pay 
 the plaintiff such an amount as he had lost by their neglect to 
 perform the covenant (.r). If this had been a covenant between 
 the lessor and lessee of the mine, Baron Parke's objection 
 would of course fail, since at the expiration of the lease he 
 could himself sink the pit. As long as there was any chance 
 that a mine might be found, he would obviously be entitled 
 to the cost of the shaft, which the defendant had undertaken 
 to make at his own expense. But suppose all possibility of a 
 mine being found, and therefore of any advantage being de- 
 rivable from the shaft, could be negatived, what would be the 
 damages then ? Xone could be given in respect of the pay- 
 ment of 2,500/., because, by the hypothesis, it could never become 
 
 («) Oldersliaw v. Holt, 12 Ad. & E. 590 : Wijscll v. School for Indigent 
 Blind, 8 Q. B. D. 357 ; 51 L. J. Q. B. 330. 
 (x) Pell V. Shearman, 10 Ex. 7c>(3. 
 
 To
 
 276 
 
 ACTIONS ON COVENANT TO PAY RENEWAL FINE. 
 
 Covenant to 
 pay renewal 
 fine. 
 
 Covenant to 
 insure where 
 no loss has 
 occurred. 
 
 due. Then the damages would be measured by the loss he had 
 sustained by not having a shaft sunk, free of charge, in his 
 own land. It is hard to see that more than nominal damages 
 could be recovered for this ; since here also, by the hypothesis, 
 no damage could accrue from breach of the covenant, as no 
 benefit would flow from its performance. 
 
 TV. There are various cases in which the occupier of land 
 covenants to make certain payments, connected with his interest 
 in it. 
 
 1. Covenants to pay renewal fine. "When the plaintiff held 
 an archbishop's lease, renewable from time to time by payment 
 of fines, and demised to the defendant for a term, the latter 
 covenanting that he would from time to time, and at every 
 time during the said term, pay to plaintiff or the archbishop, 
 such part of the fine or fees which, upon every renewal of the 
 lease by which plaintiff held the premises, should be paid or 
 payable by plaintiff in respect of the premises demised to 
 defendant. Plaintiff renewed for a longer period than the 
 term demised by him to the defendant, and it was ruled that 
 the latter was only liable for a part of the fines commen- 
 surate with the interest which defendant now acquired in the 
 premises (y). 
 
 2. Covenant to Insure. In an action for breach of this 
 covenant, the plaintiff', who had himself paid the insurance 
 premium, was held entitled to recover it back from the de- 
 fendant as damages, no special loss having occurred (z). In 
 this case the plaintiff was himself a lessee, bound by covenant 
 to insure, and the defendant was his assignee who had taken 
 subject to the original covenants, so that the payment by the 
 plaintiff was necessary for his own safety. Even in the 
 ordinary case of lessor and lessee, the same rule would, it is 
 conceived, hold good. If the plaintiff has paid the insurance 
 premiums, he ought to recover their amount ; because, as he is 
 entitled to the protection of an insurance policy, he is also 
 entitled to adopt such means as may keep it on foot. If, 
 however, he has not paid the premiums, then the question is 
 how much is the reversion the worse by reason of the lapse 
 
 (?/) Charlton v. Driver, 2 B. & B. 345. 
 {z) Bey V. Wyche, 12 L. J. Q. B. 83.
 
 ACTIONS OX COVENANT TO INSURE. 277 
 
 or non-existence of such a policy ; no loss having as yet 
 occurred ? The answer to this would seem to be, that the 
 loss to the reversion is measured by the amount which it would 
 cost the plaintiff to put himself into the same position as he 
 would now be in, had the defendant kept his contract. If no 
 insurance has been effected, this amount would consist of the 
 cost of entering into one ; that is, all the charges which a 
 party has to incur at starting, before his next premium falls 
 due. If a policy has been effected, then the arrears of pre- 
 miums (if the office will accept them) or the cost of a new 
 policy, whichever is cheaper. It seems plain that this is all 
 to which the plaintiff is entitled ; he can claim nothing in 
 respect of the past risk, for this is over, nor in respect of past 
 payments, for he has made none. The cost of commencing an 
 insurance will, at any moment, secure him against risk till 
 default made in paying the premiums ; and when this takes 
 place, he may pay them himself, and recover their amount as 
 damages. 
 
 These views are to a considerable extent confirmed by the Charles v. 
 Court of Common Pleas, in a case where the question in- ^"'" 
 cidentally arose. It was agreed by the terms of a charter- 
 party, that the charterers should pay one-third of the freight 
 in advance — the same to be returned if the vessel did not 
 reach her destination — the charterers to insure the amount at 
 the owner's expense, and deduct the cost of so doing from the 
 first payment of freight. The charterers paid the one-third 
 freight, deducting insurance premium. The vessel and cargo 
 never arrived. The charterers sued for a return of the freight. 
 The owners pleaded that if the insurance had been properly 
 effected, it would have indemnified them against the loss of the 
 one-third freight stipulated to be returned ; but that by the 
 negligence of the charterers in deviating from the usual course 
 of business in effecting the insurance, the insurance had become 
 worthless. Consequently, that the defendants had a right of 
 action against the plaintiffs, to exactly the same amount as 
 that which the plaintiffs had against them. This, if true, would 
 have made the plea good in avoidance of circuity of action. 
 It was held bad, on the ground that the damages for negh- 
 gence in insuring were not necessarily the same as the freight 
 to be returned. Maule, J., said, " I do not think that the
 
 278 ACTIONS ON COVENANTS TO INSURE. 
 
 concluding allegation sufficiently identifies the sum mentioned 
 in the plea with that sought to be recovered by the declaration. 
 That which is complained of in the plea would give the 
 defendants a right of action against the plaintiffs, so soon as 
 they were guilty of the negligence charged, and the defendant 
 was thereby damnified. That which happened subsequently 
 does not necessarily determine the amount of damages the 
 defendant would be entitled to. A jury might have given 
 exactly the same amount of damages before as after the loss. 
 The question is, what damage has the party sustained at the time 
 the cause of action vested in him ? If nothing had happened, 
 and a policy might then have been effected, the jury would con- 
 sider what was probable ; if the loss had then happened, they 
 perhaps might have given the full amount ; but they were nob 
 bound to do so. There were a variety of circumstances which 
 they might properly take into their consideration. Therefore, 
 it is not a necessary and conclusive thing that the sum to be 
 insured by the policy neither more nor less, is the sum which 
 the plaintiffs would have to pay, but a compensation for the 
 injury resulting from their negligence." " Perhaps, after the 
 loss, they would be bound not to give more than the amount 
 of the actual loss, when no greater loss could happen " (a). It 
 will be observed that it was not necessary for the Court to lay 
 down positively what the measure of damages would be, where 
 the action was brought before a loss had arisen. It was suffi- 
 cient for their purpose to show that they were not necessarihj 
 the full amount of the policy {h). This will account for the 
 absence of any direct and positive assertion as to the rule of 
 law in such a case. 
 "Where a loss There seems, on principle, no reason to doubt that after 
 
 has occurred. ^ loss had occurred, the measure of damages would be the 
 exact value of the thing lost, which ought to have been 
 insured. A later case expressly decides the point. R., the 
 owner of a saw-mill, received from B. timber to be sawed. 
 An agreement was made as to its being kept insured by E., 
 as to which varying evidence was given. According to one 
 account the agreement was, that R. should hold all B.'s 
 timber insured from fire, and should pay its value if burnt. 
 
 (a) Charles v. Altin, ] 5 C. B. 46, 65 ; 23 L. J. C. P. 197, 204. 
 {h) So in CaUU v. Dawson, 3 C. B. N. S. 106 ; 26 L. J. C. P. 253.
 
 ACTIONS ON COVENANTS TO PAY RATES. 279 
 
 According to another account, the whole substance of what 
 passed as to insurance was, that the goods should be always 
 insured from fire. No written memorandum was made — no 
 particular office was mentioned — no time for insurance was 
 mentioned, nor any particular amount. Xo insurance was 
 effected. The goods were burnt, and R. became bankrupt. 
 B. applied to prove for the value of the timber. His right 
 depended upon the question, whether his claim was for an 
 ascertained amount, or for unliquidated damages. It was de- 
 cided on appeal to the Lords Justices that his claim was 
 admissible. The Court held that on the whole evidence they 
 were satisfied that there was a contract on the part of the 
 bankrupt to make good the value oi the timber. L. J. 
 Turner, however, added, " In any event it seems to be clear 
 that there was a contract on the part of the bankrupt to insure 
 the petitioner's timber, and that this insurance was to be 
 made for the purpose of securing to the petitioner the value 
 of his timber, in case it should be destroyed by fire ; and under 
 such circumstances, I apprehend, that the value of the timber 
 would be the measure of damages in an action fur breach of 
 the contract." This being so, and the valne of the timber 
 being an ascertained thing in the market, the amount of the 
 claim of course became a mere matter of account (c). 
 
 Loans by insurance companies are frequently secured by Loans secured 
 the assignment of a policy effected with the company by the ^-T '"^ssignment 
 borrower, who covenants to keep up the policy by paying the 
 premiums. Upon his failing to do so, companies have claimed 
 to be entitled to recover in an action for breach of covenant 
 the amount of unpaid premiums, but it has been held that this 
 is not the proper measure of damages. If the company has 
 effected a fresh insurance, and paid the premiums to other 
 insurers, they may be entitled to recover what they have paid, 
 but being themselves the insurers their real damage is the loss 
 of the security. How this is to be estimated has not been 
 suggested, but in the absence of any expense shown to have 
 
 (c) Ex parte Bateman, 20 Jur. 265 ; 25 L. J. Bkcy. 19 ; approved by 
 Erie, C. J., Bcttdey v. Stainshy, 12 0. B. N. S. at p. 499 ; 31 L. J. C. P., at 
 p. 342. In Upper Canada it lias been on this principle laid down, that the 
 measure of damages is the value of the premises lost to the plaintiff by the 
 neglect to insure, not exceeding the sum in wtiich the defendant was to have 
 insured by his covenant : Uouylass\, Alurphy, Iti Upper Canada, Q. II, 113.
 
 280 
 
 ACTIONS ON COVENANTS TO PAY RATES. 
 
 Forfeiture of 
 policy. 
 
 Covenant to 
 pay rates. 
 
 been caused by the breach, nominal damages have been held 
 to be alone recoverable (d). 
 
 Where a deed by which the defendant assigned to the plain- 
 tiffs a policy of insurance upon his own Hfe contained a covenant 
 that he would not do anything by which the policy should be 
 forfeited, and a forfeiture was caused by the defendant's going 
 beyond the Hmits of Europe without the licence of the assurers, 
 the damages were assessed upon the present value of the policy, 
 to be assessed by an actuary, uaking into consideration that the 
 defendant covenanted to pay and should pay premiums on the 
 policy (e). 
 
 3. A covenant to pay rates is broken as soon as the rates 
 are due, though no demand has been made (/). I can find no 
 case in which auy rule is laid down about the measure of 
 damages in such an action. There would of course be a broad 
 distinction, according as the rates were primarily payable by the 
 person who covenants to pay them or not. For instance, if the 
 landlord covenanted to pay what was usually tenant's taxes, this 
 would be similar to a covenant to pay off incumbrances, and 
 the whole amount of the tax would be recoverable, even though 
 none had been paid by the tenant (g). On the other hand, the 
 tenant may covenant to pay his own taxes, for which the 
 landlord is not liable at all, except by means of legal process 
 against his house. This would seem to be analogous to a 
 covenant to repair, and the measure of damage would be the 
 
 {d) National Assurance Co. v. Best, 2 H. & N. 605 ; 27 L. J. Ex. 19 : 
 Broivne v. Price, 4 C. B. N. S. 598 ; 27 L. J. C. P. 290. In this last case 
 the deed provided that unpaid premiums jmid by the plaintiffs should be added 
 to the principal debt and charged ui)on the land, but contained no covenant by 
 the defendant to repay i>T'emiums paid by them. See also Warburg v. Tucker, 
 E. B. & E. 914 ; 28 L. J. Q. B. 56, in Ex. Ch. A mortgagee cannot insure 
 and add the premiums to his mortgage debt, in the absence of an express 
 contract authorising him to do so : Brooke v. Stonr, 34 L. J. Ch. 251. 
 
 (e) Hawkins v. Voulthurst, 5 B. & S. 343 ; 33 L. J. Q. B. 192. An 
 executor who dropped a policy on the life of a debtor to the testator's estate, 
 without consulting those beneficially interested, was held liable for the whole 
 sum which would have been recovered if he had kept up the policy ; Garner 
 V. Moore, 3 Drew, 277 ; 24 L. J. Ch. 687. See as to the breach of an agree- 
 ment by a man to insure his life for the benefit of his family, where the life 
 had become uninsurable before the time for effecting the policy had expired : 
 Re Arthur, 14 Ch. D. 603 ; 49 L. J. Ch. 556. As to the mode of estimating 
 the value of a policy in a life assurance company in course of liquidation, see 
 Holdich's Case, L. R. 14 Eq. 73. 
 
 (/) Davis r. Burrell, 10 C, B. 821. 
 
 {[/) See Lethhridrje v. Mytton, 2 B. & Ad. 772 ; ante, p. 217.
 
 ACTIONS ON COVENANT TO GIVE UP POSSESSION. 231 
 
 injury to the reversion, by having arrears of taxes due, distresses 
 put in, and the Hke. 
 
 AVhere there are alternative covenants, and plaintiff declares Alternative 
 for a breach of both, if money is paid, and accepted in satis- 
 faction of one, the plaintiff is only entitled to nominal damages 
 in respect of the other {h). 
 
 4. In an action for breach of covenant to give up possession Covenant to 
 
 at the end of a term, the plaintiff can recover only the actual deliver up 
 ' ^ . . possession. 
 
 damage which he has sustained. This was ruled m a cas3 in 
 which the defendant was tenant to the plaintiff, who was the 
 owner of the equity of redemption. The lease contained a 
 covenant to deliver up the premises and all fixtures therein 
 at the expiration of the term. The term expired on the 1st 
 April. The plaintiff demanded possession on the 10th, but it 
 was not given. On the 13th April the mortgagee gave notice 
 to the plaintiff to pay the rent and deliver up the premises to 
 him. The plaintiff sued the defendant for breach of cove- 
 nant in not delivering up the fixtures, and the defendant paid 
 5/. into Court, which the jury found to be sufficient to cover 
 the actual damage sustained by the plaintiff being deprived 
 of the possession of the fixtures for three days. The plaintiff 
 claimed to have the verdict entered for him for the full value of 
 the fixtures, but a rule to that effect was discharged. Martin, B., 
 said that the absurd result would follow from the plaintiff's 
 reasoning, that where a person hired a chattel and agreed to 
 deliver it up on a certain day, but did not do so, and it after- 
 wards turned out that the chattel was stolen, and the true 
 owner demanded possession, the person who lent it might 
 recover the whole value of the stolen chattel. No doubt he 
 might maintain an action, because the person who hired the 
 chattel agreed to deliver it up on a certain day, but he would 
 only be entitled to nominal damages. In an action on a cove- 
 nant in a lease to deliver up the land, the sum to be recovered 
 would not be the value of the land but the real damage sus- 
 tained (^). 
 
 5. In an action for breach of covenant not to assign, an Covenant not 
 arbitrator in assessing damages was directed to find such a sum "^ ° ' 
 
 (h) Foley V. AddenhrooJce, 13 M. & W. 174. 
 
 \i) Watson v. Lane, 11 Ex. 769 ; 25 L. J. Ex. 101. See also Henderson 
 V. Squire, L. R. 4 Q. B. 170 ; 38 L. J. Q. B. 73.
 
 282 
 
 ACTION ON COVENANT NOT TO ASSIGN. 
 
 Covenant 
 against ob- 
 noxious trade. 
 
 as would, as far as money could, put the plaintiff in the same 
 position as if he had still the defendant's liability for the 
 breaches of the other covenants, instead of the liability of a 
 person of inferior ability, and to take into consideration breaches 
 both past and future (/.;). 
 
 In a recent case (/) a tenant who was under covenant not to 
 assign or sublet without written consent, with a proviso that 
 such consent should not be unreasonably or capriciously with- 
 held to a responsible assignee or sub-tenant, sublet without 
 asking permission to a person who intended, as he knew, to use 
 the premises as a turpentine distillery. The premises were 
 burnt down by a fire arising from their use as such distillery. 
 The tenant was sued for breach of his covenant, and it was 
 held that he was liable in damages for the full loss caused by 
 the fire. The breach of covenant carried with it the very sort 
 of danger against which the covenant was intended to guard. 
 If, however, the premises had been sublet for the ordinary pur- 
 poses of occupation to a tenant who was not known by previous 
 experience to be reckless or dangerous in his habits, nominal 
 damages would in any case be recoverable, but not fall damages 
 resulting from an accident which was not the reasonable or 
 probable consequence of the breach complained of. 
 
 Covenants not to exercise specified trades, or to do acts which 
 might be an annoyance, a nuisance or a danger to the inhabi- 
 tants of the neighbourhood, will generally be enforced by in- 
 junction, and such injunction will be granted even though no 
 pecuniary loss can be established (w). It is obvious that no 
 amount of pecuniary damage would be an adequate form of 
 redress against a tenant who chose to open a gin-palace in 
 Grosvenor Square. If the lessor sued for damages, he would, 
 of course, en the principles already stated, be entitled to such 
 damages as would represent the injury to his reversion by 
 lowering the character of his premises, and of the neighbour- 
 hood. If he had other property adjoining or in the vicinity of 
 the premises, he would also be entitled to such damages as he 
 would suffer by the diminution of value of such property. But 
 even if he had no such property, it is suggested that he would 
 
 (!•) WUMams v. Earle, L. R. 3 Q. B. 739 ; 9 B. & S. 740. 
 
 {I) Lepla V. Rogers, [1893] 1 Q. B. 31. 
 
 [in) Tod-Heutly v. Hen/uua, 40 Cli. D. SO ; 53 L. J. Ch. S3.
 
 ACTION ON COVENANT NOT TO ASSIGN. 283 
 
 be entitled to substantial damages, independent of the loss to 
 the reversion. The object of the covenant is absolutely to 
 forbid the act, not only in the interests of the lessor, but for 
 the benefit of the neighbours. They cannot sue upon the 
 covenant, but the lessor can. It would seem, therefore, that 
 as regards one of its principal objects, the covenant would be 
 nugatory, unless the only person who could enforce it was able 
 to recover such substantial damages as would prevent its 
 infraction. It might well be that a breach of the covenant 
 would not amount to such a nuisance as would entitle strangers 
 to any remedy against the j^rohibited acts.
 
 CHAPTER X. 
 
 Carriers. 
 
 Land carriage 
 
 Packed 
 parcels. 
 
 //. Actions against Carriers. 
 
 For Breach of Contract 
 Camj. 
 For Injury or Loss to Goods. 
 
 I. Actions hy Carriers. 
 
 1. For Freight. 
 
 2. For Breach of Contract to provide 
 
 Cargo. 
 
 3. For Detaining Ship. 
 
 4. For Loading Dangerous Goods. 
 
 The extensive commercial transactions of this country render 
 contracts for the conveyance of goods a matter of great and 
 daily importance, and the doctrine of damages, arising out of 
 such contracts, presents some peculiar considerations. 
 
 There are some distinctions, principally statutory, between 
 the liability of carriers by land and sea, but the whole subject 
 may without confusion be examined in a single view. 
 
 Actions may be brought upon a contract of carriage, either 
 by the carrier, or by the owner of the goods. The former may 
 sue for the cost of carriage, or for breach of the contract to 
 employ him. The latter may sue for a refusal to convey the 
 goods, or for their loss or injury. 
 
 I, Actions by carriers. 
 
 1. Actions for the price of carriage are generally much less 
 comphcated where the carriage is by land than by sea, A 
 fruitful source of discussion, however, has sprung up between 
 the railway companies and other carriers, on the subject of the 
 charges made upon the latter for carrying goods, collected by 
 them from various customers. One point of controversy arose 
 out of the packed parcel question, viz., the right of the railway 
 companies to impose peculiar terms upon the carriage of large 
 packages of goods, in which a number of smaller packages were 
 contained. These cases are so involved in the particular word- 
 ing of the private Act, authorising tolls to be taken, that it 
 would be impossible to attempt a statement of the facts. The
 
 ACTIONS FOR FEEIGHT. 285 
 
 general rule, however, is laid down beyond doubfc, that where 
 the company carries such parcels for any of the public, they 
 must carry them for all on the same terms, and that the fact 
 of their having issued orders, stating that they would no longer 
 carry them, makes no difference, if, as a matter of fact, they 
 do continue to carry them for some (a). Any overcharge may 
 be recovered as money had and received to the use of the 
 plaintiff (a). 
 
 On the other hand, questions of nicety very often arise in Actions for 
 actions for freight due, on account of the various modes in freight. 
 Avhich contracts for carriage by sea are formed, and the uncer- 
 tainty that may prevail at the time of the contract as to the 
 species of goods that are to be conveyed. 
 
 Where the entire ship has been engaged at a specific price, Where entire 
 or where a cargo has been loaded at a settled price per ton, of ^^^P engaged 
 course the matter is simple enough. In the former case, the 
 whole sum will be payable, though the merchant only fills part 
 of the ship (b). 
 
 "Where the covenant was to pay for hides at so much per 
 pound net weight at the scales, and it appeared that the 
 packages were wrapped in hides of an inferior quality, which 
 are generally somewhat damaged, and the evidence varied as 
 to whether freight was paid for them or not, or whether they 
 paid duty : — Held that they must pay both freight and duty (c). 
 
 Where an entire ship, of a certain specified burthen, is When payment 
 
 hired, and the charterer agrees to pay a certain sum for every js to be made 
 ' " *' by the ton. 
 
 ton of goods which he shall have on board, but does not agree 
 to supply a full cargo, he is only liable for the actual amount 
 caiTied (d). 
 
 (a) Parker v. G. W. Ry. Co. 7 M. & Gr. 253 ; 11 C. B. 545 : Edwards 
 V. G. W. Ry. Co., 11 C. B. 588 : Crouch v. G. N. Ry. Co., 9 Ex. 556 : 
 Crouch V. L. d: N. W. Ri). Co., 14 G. B. 255 : Baxcndale v. G. W. Ry. Co., 
 14 C. B. N. S. 1 ; 32 L. J. C. P. 225 ; and 16 C. B. N. S. 137 ; 33 L. J. 
 C. P. 197, in Ex, Ch. : Baxendale v. L. <£• S. W. Ry. Co., L. R. 1 Ex. 137 ; 
 35 L. J. Ex. 108 ; 4 H. & C. 130 : Sutton v. G. W. Ry. Co., 3 H. & C. 800 ; 
 35 L. J. Ex. 18 ; affirmed, L. R. 4 H. L. 226 ; 33 L. J. Ex. 177. Under 
 the Regulation of Railways Act, 18d8, 31 & 32 Vict. c. 119, s. 17, railway 
 companies are bound upon application to furnish accounts showing how much 
 of their charge is for conveyance of goods upon the railway, and how much for 
 collection, delivery, and other expenses. 
 
 (b) Abbott on Shipping, 410. 351, 12th ed. Robinson v. Kniyhts, L. R. 
 8 C. P. 465 ; 42 L. J. C. P. 211 : Mackill v. Wriyht, 14 App. Ca. 106. 
 
 (c) Moorsom v. Page, 4 Camp. 103. 
 
 (d) James [Lady) v. East India Co., Abbott on Shipping, 412, 352, 12th ed.
 
 286 
 
 ACTIONS BY CARRIERS. 
 
 Aud a full 
 cargo is to be 
 supplied. 
 
 Wei gilt, how 
 calculated. 
 
 Freight where 
 cargo changes 
 in bulk or 
 
 weiL'ht. 
 
 On the other hand, where he does agree to supply a full 
 cargo, his liability is not limited to the tonnage expressed in 
 the charter-party ; and the burthen being described as 261 tons 
 or thereabouts, whereas the vessel would really have held 400 
 tons, it was held that the merchant must pay for the entire 
 amount she could have stowed. Of course, if there was a 
 fraudulent representation it would be different (e). If part of 
 the cargo has been delivered to, and received by the consignees, 
 freight is payable upon it, even though the rest has not been 
 delivered, and though it has not been landed at the port named 
 in the charter-party, but at some other port to which the con- 
 signee directed the captain to come (/). 
 
 In the absence of any special contract, it is said that freight 
 payable by weight is to be calculated upon the net weight, as 
 ascertained at the king's landing scales, and not according to 
 that expressed in the bill of lading (//). But where the bill of 
 lading was of 100 lasts of wheat, in 2,092 bags, upon which 
 freight was to be paid at 14/. sterling per last ; the bill of 
 lading bore date Dantzic ; no evidence was given that the corn 
 was measured at Dantzic by either party, but it appeared that 
 the Dantzic last was much larger than the English, and that 
 the English last was the one by which the defendant had pur- 
 chased. The plaintiff therefore sought to be paid freight for 
 100 lasts, which the cargo was believed to amount to in English 
 measure, and which were expressed in the bill of lading. The 
 defendant, on the other hand, claimed only to pay freight on 
 such a reduced number of lasts as the whole cargo would 
 amount to if measured by the Dantzic scale : — Held that no 
 evidence was admissible to vary the written contract, which 
 stated the number of lasts to be ICO, and that the plaintiff's 
 mode of calculation was the true one (//). 
 
 Goods sometimes change in bulk or weight during a voyage 
 or after delivery. In such cases it has been laid down that, 
 special contract and usage of trade apart, freight is to be calcu- 
 
 (c) Hunter v. Fry, 2 B. & A. 421 : Thomas v. Clarke, 2 Stark. 452 ; 
 Barker v. Windle, 6 E. & B. 675 ; 25 L. J. Q. B. 349. 
 
 (/) Christy v. Row, 1 Taunt. 300. In that case the non-arrival at the 
 right port, and the non-delivery of the rest of the cargo, arose from restraint 
 of princes, a peril excepted against. 
 
 ((j) Geraldes v. Donison, Holt, N. P. 346. 
 
 (A) iM oiler v. Living, 4 Taunt. 102.
 
 ACTIONS FOR FREIGHT. 287 
 
 lated aud paid on that amount only which is put on board, 
 carried throughout the whole voyage, and delivered to the 
 merchant (/). Thus, where wheat increased in bulk from being 
 wetted during the voyage, freight was recovered on the quantity 
 shipped, and not on that dehvered (/;). Aud so where cotton 
 shipped in compressed bales expanded on being unloaded {I). 
 
 A case which has on several occasions caused a good deal of .Aiode of calcu- 
 debate, is that in which the rate of freight has been fixed with ^^^f^rsften 
 a view to certain articles, and either none or only some of these fixed with 
 have been actually carried. The question has then been. What ^j.[jgigg°t]ja°t 
 freight was payable on the remaining articles ? The rule seems are not carried, 
 now^, however, to be established as follows : — Where a charter- 
 party provides for the carriage of various classes of goods at 
 specified rates, and gives no permission for the substitution of 
 other goods ; or permits, but does not provide a scale of pay- 
 ment for such substituted goods ; in either case, the freight 
 payable in respect of them is calculated upon an average of 
 what would have been earned, by carrying a similar amount of 
 all the enumerated articles in equal quantities {m). 
 
 But where some of the enumerated articles are limited as to 
 the amount which may be carried, and that amount has been 
 reached, the freight of the non-enumerated articles can only be 
 calculated on an average of the remaining articles {n). And 
 in all cases where a particular class of goods are to be calcu- 
 lated according to a particular scale of bulk, &c., that scale 
 
 (0 Gihson v. Sturfie, 10 Ex. 622 ; 24 L. J. Ex. 121 : Buckle v. Knoop, 
 L. R. 2 Ex. 333 ; 36 L. J. Ex. 223, in Ex. Ch. In both of these cases the 
 cargo had increased in bulk. Willes, J., in his elaborate judgment in Dakiii 
 V. Odey, 15 C. B. N. S. 646 ; 33 L. J. G. P. 115, after mentioning the rule 
 as applicable to cases where the cargo has accidentally swelled, speaks of it as 
 "perhaps" applying where the cargo has diminished, and draws attention to 
 some arbitrary provisions in foreign codes respecting loss of liquids. In the 
 West India trade, freight of sugar and molasses is said to be regulated by the 
 weight of the casks at the port of delivery, the loss of freight by leakage fall- 
 ing on the owners of the ship. Abbott on Shipping, p. 366, 12th ed. This 
 ■would seem to follow naturally from the rule laid down in Gibson v. Sturge, 
 that to constitute a title to freight, the commodity must be "shipped, 
 carried, and delivered." 
 
 (^•) Gibson V. Stm-fje, supra. 
 
 \l) Buckle V. Knoop, supra. In that case it v/as found to be usual to ship 
 cotton at Bombay in compressed bales. In Coulthurst v. Sweet, L. R. 1 C. P. 
 649, there were exi^ress words making the freight payable per ton, " nett 
 weight delivered." 
 
 {m) Capper v. Forster, 3 B. N. C. 938. 
 
 (n) Cockburn v. Alexander, 6 C. B. 791 ; 13 L. J. C. P. 74.
 
 288 
 
 ACTIONS BY CARRIERS. 
 
 Specified 
 articles un- 
 limited. 
 
 Specified 
 articles limited 
 in quantity. 
 
 Specified 
 articles of de- 
 fined weight. 
 
 must be applied in estimating the freight, though, were it not 
 for the agreement, it would furnish an incorrect standard of 
 measurement (o). 
 
 The facts of the above three classes of cases were these :— 
 1. A charter-party provided that the merchant should ship a 
 full and complete cargo of lawful merchandise, which was to be 
 delivered vj) on leimj ixiid freujfd asfoUoivs : viz., for gum, 
 bees'-wax, ivory, and palm-oil, 4/. per ton : hides, IL per ton : 
 rice 3/. per ton. A full cargo was not shipped, and it was 
 held on the authority of Thomas v. Clarke { p), that the same 
 rule should be applied, to a deficient cargo as to a full cargo, or 
 to none at all, and that the shortcoming should be calculated 
 by an average of what might have been shipped of all the 
 articles specified (§'). 
 
 2. Covenant to load a full cargo of wool, tallow, bark, or 
 other legal merchandise, the entire quantity of bark not to 
 exceed 100 tons, and the quantity of tallow and hides not to 
 exceed 80, to be delivered up on being 2)aid freight as folioivs : 
 pressed wool, \\d. per pound ; unpressed, Ifr/. per pound : 
 tallow, 3/. per ton ; bark, 4/. per ton ; and hides, 21. per ton ; 
 the latter not to exceed 20 tons, without the consent of the 
 captain. She brought home less than the stipulated quantity 
 of some of the articles, more of others, and some not named afc 
 all : — Held that the owners were entitled to payment as if she 
 had brought home the full amount of the enumerated goods, 
 viz., 100 tons of bark, GO of tallow, and 20 of hides, and the 
 remainder wool pressed or unpressed (r). 
 
 3. In the last case there was a proviso for shipment of a full 
 cargo of produce, freight to be paid at and after the rate of 
 bs. Gd. per barrel of flour, meal, and naval stores, and lis. per 
 quarter of 480 pounds of Indian and other grain. The cargo 
 was not to consist of less than 3000 barrels of flour, meal, or 
 naval stores, and not less flour or meal than naval stores was 
 to be shipped. The full amount of flour, meal, and naval 
 stores was not shipped, other articles were ; among them 2000 
 bushels of oats. A quarter of the latter weighed less, and 
 
 (o) IVarren v. Peahody, 8 C. B. 800 ; 19 L. J. C. F. 43. 
 
 (p) 2 Stark. 450. 
 
 (9) Capper v. Forster, 3 B. N. C. 938. 
 
 ()•) Cockburn v. Alexander, uhi sup.
 
 ACTION'S FOR NOT SUPPLYING CARGO. 289 
 
 occupied more room, than Indian corn. It was hold that the 
 owner w^as entitled to freight, as if the stipulated amount of 
 flour, meal, and naval stores, in their respective portions, had 
 been put on board, and the remainder of the space had been 
 filled with grain, averaging 480 pounds to the quarter, and 
 paying lis. (s). 
 
 Where there is an agreement for a specific freight, no evi- Evidence in 
 dence can be given of a deficient porformance of contract not ^^ina'^es. 
 amounting to breach of condition precedent, with a view to 
 reduce the damages ; though it would be otherwise if the 
 action were on a quantum meruit. For instance, evidence 
 cannot be offered of a deviation which caused delay and ex- 
 pense (/). Nor of injury caused to the contents of some of the 
 packages by the negligence of the master, in not ventilating 
 them sufficiently {u). And where the freighter engages a ship 
 for a certain time, the owner to keep her in repair, he cannot 
 claim to deduct from the freight any time during which she is 
 under repairs, and, therefore, lying idle (x). So, where there 
 is an agreement to pay pilotage and port charges, for an entire 
 voyage, and only part of the cargo is delivered, if this is re- 
 ceived, the whole of the charges must be paid, and there can 
 be no apportionment (//). Nor can the value of missing goods 
 be deducted from the freight payable in respect of goods de- 
 livered (s). And where the entire ship is engaged for the 
 carriage of a cargo, and a lump sum is agreed on as freight, to 
 be paid after entire discharge and right delivery of the cargo, 
 if part of the cargo is lost from fire, perils of the sea, or other 
 cause, not attributable to master or crew, the shipowner is en- 
 titled to his entire freight, without any deduction for the por- 
 tion that has been lost (a). 
 
 (s) Warren v. Peahod)/, 8 C. B. 800. 
 
 (t) Bornmann v. Tookc, 1 Camp. 377. 
 
 ill) Davidson v. Gici/nne, 12 East, 381. A .set-ofF for culpable damage in 
 an action for freight is allowed in some of the United States : Dahin v. 
 Oxlcii. 15 C. B. N. S. at p. 667 ; 33 L. J. C. P. at p. 120, per Willes, J., 
 citing 1 Parson's Mercantile Law, 172 n. If the damage amounts to absolute 
 destruction, the shipowners are not ready to deliver, and therefore cannot sue 
 for freight : Ihithie v. Hiltm, L. R. 4 C. P. 138. ' 
 
 (x) Havelock v. Geddes, 10 East, 555 : Rij^'ey v. Scaifc, 5 B. & C. 167. 
 
 \il) Christy Y. Roto, 1 Taunt. 300. 
 
 (■:) Meyer v. Dresser, 16 C. B. N. S. 646 ; 33 L. J. C. P. 289. 
 
 («) The Norway, 3 Moo. P. C. N. S. 245 : Rohinson v. Knights, L. R. 
 8 C. P. 465 ; 42 L. J. C. P. 211 : Merchant Shippinj Co. v. Armitage, L. K. 
 
 il.D. U
 
 290 ACTIO>:S BY CARRIERS. 
 
 But damages for injuries which are uot strictly matters of 
 set-off or deduction can now be recovered by proper counter- 
 claims. 
 Dreacli of 2. In actions for supplying no cargo, or an incomplete one, 
 
 contract to ^^ measure of damage is the difference between what the 
 plaintiff would have earned if the contract had been fulfilled, 
 and that which he has earned, notwithstanding the breach (b). 
 The amount which he wou]d have earned is open to the same 
 questions, and decided upon the same principles, as the amount 
 of freight payable (c). Upon this point, Maule, J., says, in 
 Coclchuni V. Alexander (d ), " It may be that in cases of this 
 sort, different amounts might, under different states of circum- 
 stances, be the proper measure of damage." " If you could 
 show that there were goods which the charterer might have 
 obtained, then the proper measure of damages would be the 
 non-shipment of that cargo. But if there were none, it may 
 be that in ascertaining the damage an average is to be taken 
 of all kinds of goods. It is in that way I think that Lord 
 Tenterden arrived at the opinion he expressed in Thomas v. 
 Clarice, viz., that where there is no cargo at all to be had, the 
 average is to be taken of all possible kinds of cargo ; that is, 
 that you are to assume, contrary to the fact, that there are 
 goods of each of the kinds enumerated, because the obtaining 
 goods of any one kind, where none are in truth obtained, cannot 
 « j;non be considered as more probable than the obtaining of 
 any of the others." But, whatever may be the default made 
 by the charterer, the captain is still bound to do his best to 
 obtain freight, and where after breach by the defendant he has 
 refused an offer, the measure of damages is what the charterer 
 ought to have paid, minus what the owner might have got. 
 
 9 Q. B. 99 ; 43 L. J. Q. B. 24. See, too, Stcivart v. Rogerson, L. R. 6 C. P. 
 424, where it was held, that on a refusal to accept cargo the measure of 
 damages was the full freight payable ; and that this would not be affected 
 even by a subsequent inability to deliver the cargo. 
 
 (6) Hunter v. Fry, 2 B. & A. 421, 424 ct seq. In calculating net earnings, 
 the expenses must be deducted : Smith v. McUuirc, 3 H. & N. 554 ; 27 L. J. 
 Ex. 465 : McLean v. Fleminq, L. E,. 2 Sc, & D. 128 : Morris v. Levison, 
 1 C. P. D. 155 ; 45 L. J. C. P. 409. 
 
 (c) See as to cases where a scale of freight is fixed for certain articles which 
 are not actually carried, or not to the stipulated extent : Thomas t. Clarke, 2 
 Stark. 450, and ante, p. 288. 
 
 (cZ) 6 C. B. 814.
 
 cargo. 
 
 ACTIONS ON CONTRACTS TO SUPPLY CARGO. 
 
 But he is not bound to accept any offer before the final breach 
 by the defendant (e). 
 
 Where the charter-party allows the freighter to load several Choice of 
 diflPerent species of goods aJternafivehj, he may fill np the load 
 with any he pleases, though in the way least beneficial to the 
 owner, provided he does not exceed the limits specified, if any. 
 Of course, if he does exceed those limits, he may pay as if the 
 cargo in excess was of a nature permitted. Covenant to take 
 on board a full cargo of copper, tallow, and hides, or other 
 goods, but not more than 50 tons of copper and tallow, nor 
 more than 1.5 tons of copper ; covenant to furnish a full cargo 
 of copper, tallow, and hides, or other goods, as above mentioned 
 at certain rates. Defendant provided a quantity of tallow, and 
 as much hides as the vessel could carry, but no copper. In 
 consequence, she had to keep in her ballast, the place of which 
 might have been supplied by the copper, and lost so much 
 freight, for which the action was brought. Lord Ellenborough 
 said, "The parties very likely intended that copper should 
 necessarily form a part of the cargo, but they have not said so. 
 The covenant leaves a latitude to the freighter to famish a 
 cargo of ' copper, tallow, hides, or oilier goods: Therefore, if 
 the ship had as large a quantity of tallow and hides as she 
 could take on board, I think the covenant has been per- 
 formed " (/). It will be observed that the plaintiff sought to 
 obtain not only a full cargo, which he had, but something 
 more, viz., to turn the ballast, which is generally waste weight, 
 into productive freight. Now, as Tindal, C. J., remarked in 
 Iri'im X. Glegg {g), " it is the duty of the owner to find proper 
 ballast for the ship." And any agreement which w^ould have 
 the effect of transferring this obligation to the charterer would 
 be interpreted very strictly. In the last-named case it was 
 agreed that the freighter should ship a full cargo of certain 
 specified goods: *' lOO tons of rice or sugar to be shipped 
 
 291 
 
 (e) Harries v. Edmonds, 1 C. & K. GS6, ^jo- Parke, B. In SmilJi v. 
 McGuirc, uhi supra, Martin, B., declined to say that the captain was bound 
 to look for employment for his ship, though whatever the ship did earn the 
 defendant would be entitled to have deducted. It has been said that if the 
 captain's conduct has been unreasonable, the jury may diminish the damages 
 on that account : WUson v. Hicks, 26 L. J. Ex. 242 ; ante, p. 174. 
 
 (/') Moorson v. Pa{/e, 4 Camp. 103. 
 
 {}/) 1 B. N. C. 53. 
 
 U 2
 
 292 
 
 ACTIONS BY CARRIERS. 
 
 Aniount of 
 car<;o specified. 
 
 Evidence of 
 custom. 
 
 previous to any other part of the loading, to ballast the vessel." 
 The 100 tons were shipped, but were not sufficient for ballast, 
 and the owner had to take on board 36 tons of stones. It was 
 held that the freighter had done his duty in loading the 100 
 tons, that the agreement with regard to them was for the 
 benefit of the owner in ensuring him a freight for what would 
 otherwise be unproductive, but that except so far as the special 
 agreement extended, it left his obhgation to find ballast just 
 as it was at first [h). 
 
 Where a charter-party provided that a ship should load " a 
 full and complete cargo, say about 1,100 tons ; " it was held 
 that these were not words of expectation but of contract, and 
 meant that if the ship held less than 1,100 tons the charterer's 
 obligation was to be satisfied by loading a full cargo, but that 
 if she was of greater capacity than 1,100 tons, the shipowner 
 would be content with about 1,100 tons as a full cargo. The 
 capacity of the ship turned out to be 1,210 tons, while the 
 charterer only provided 1,080. The shipowner claimed pay- 
 ment on the difference. The Court applying the above con- 
 struction of the contract, ruled that 3 per cent, above the 
 1,100 tons was a fair allowance to be made in favour of the 
 shipowner, and that he was entitled, not to the full amount, 
 which he claimed, but to a freight calculated on the difference 
 between 1,080 tons actually loaded, and 1,133 the estimated 
 capacity of the ship (/). 
 
 If there is a known and recognised custom of loading, at the 
 port to which the charter-party refers, this custom will, accord- 
 ing to the well-known rule of evidence (lo), be incorporated in 
 the contract, and, if departed from, to the loss of the owner, 
 damages will be estimated accordingly (?). Accordingly, where, 
 by the practice of the port, cotton bales for exportation were 
 always compressed by machinery, the furnishing a cargo of 
 
 (A) 1 B. K C. 53, 58. And see Southampton Steam Collien/ Co. v. 
 ClaA-e, L. R. 4 Ex. 73 ; 38 L. J. Ex. 51 ; affirmed in Ex. Ch. L. R. 6 Ex. 
 53 ; 40 L. J. Ex. 8. Whether in addition to the cargo the charterer is bound 
 to till up with broken stowage, depends on the terms of the charter-party : 
 Vole V. Meek, 15 C. B. N. S. 795 ; 33 L. J. C. P. 183 : DucLxtty. Satterfield, 
 L. E. 3 C. P. 227 ; 37 L. J. C. P. 144. 
 
 (i) Morris v. Levison, 1 C. P. D. 155 ; 45 L. J. C. P. 409. 
 
 (k) Tayl. Ev. 767. See p. 986 tt seq., 8th ed. 
 
 {I) Wallace v. Small, cited 1 B. N. C. 55,
 
 ACTIONS FOR NOT SUPPLYING CARGO. 
 
 293 
 
 uncompressed cotton bales was held not to be a compliance 
 with the contract to load a full cargo. The same charter-party 
 gave the freighter an option either to load the whole ship with 
 cotton at a high freight, or part of it with cotton, and the re- 
 mainder with rice at a lower freight. The latter, if loaded at 
 all, would have to be put on board first. It was held that by 
 beginning to load with cotton, the freighter had elected to 
 furnish a full cargo of it, and that damages for not supplying 
 such a cargo must be estimated at the higher freight {tn). 
 
 Sometimes there is a stipulation that in case the charterer Right of char- 
 cannot find a cargo, he shall pay a certain sum, and in such noTsu'^plieeT 
 cases questions often arise as to his right to be allowed for a cargo to be 
 freight subsequently earned by the ship. It would appear 'J,.e"gbt earned 
 from the cases, that where the right of the shipowner to the afterwards. 
 sum specified has once absolutely vested, he may earn as much 
 as he can, and retain it, over and above the payment from the 
 charterer. A ship was freighted for a voyage to Petersburg 
 and back at so much per ton measurement. She was to take 
 a single cargo of lead out, and to bring home a return cargo. 
 If from political circumstances she should remain forty days 
 at Petersburg without fhe outward cargo leing unloaded, and 
 conseqnmUy without the return cargo leing loaded, the captain 
 was to return to England, and be paid a gross sum, which 
 was less than the money payable per ton. The cargo could 
 not be unloaded, and the captain returned as agreed, bringing 
 back the lead, but on his way home he obtained further 
 freight, and earned money : — Held that he was entitled to 
 retain it. On the whole construction of the charter-party it 
 was considered to amount to an alternative agreement, either 
 to load a return cargo, and pay so much per ton, or to pay a 
 gross sum for the conveyance of the lead to Petersburg and 
 back again. In the latter event there was no reason why the 
 captain should not earn what else he could by taking other 
 people's goods on board for his own benefit {n). On the other 
 hand, where, under a similar state of things, the master, 
 instead of bringing the goods home, sold them at Stockholm, 
 and brought home another cargo, upon which he earned 
 
 {m) Benson v. Schneider, 7 Taunt. 272. And see Buckle v. Knoop, ante, 
 p. 287 : Past v. Dowie, 5 B. & S. 20 ; 33 L. J. Q. B. 172. 
 {n) Bell V. Puller, 2 Taunt. 285.
 
 294 
 
 ACTIONS BY CARRIERS. 
 
 Where char- 
 terer has not 
 liecome liable 
 to pay penalty. 
 
 freio-ht, it was held that the amount so earned must be 
 deducted from the amount payable by the freighters (o). 
 With regard to this case, Mansfield, C. J., says (p), " For 
 aught that appears the means which the captain had of 
 obtaining any freight at Stockholm might arise from the use 
 he made of the lead there ; and on that account perhaps the 
 Court of King's Bench might think that the captain, who 
 had not been authorised, or directed, to act thus, but had 
 done all this for his own benefit, should not be entitled to 
 that profit, leaving the underwriters to pay the whole 2,500/." 
 Should such a case recur, the question will probably be, 
 whether the captain was bound to bring back the cargo, as it 
 seems to have been assumed in the above cases he was. If so, 
 any money earned by not bringing it home would clearly be 
 earned for the benefit of the freighters, if they chose to ratify 
 his act. If, however, there was nothing to prevent him putting 
 the goods on shore, or throwing them overboard, unless received 
 from him, it is hard to see what difPerence it could make as to 
 the freight of the goods substituted, that they had been sold 
 instead of cast away. 
 
 If, however, the freighters have not followed the agreement 
 in such a manner as to entitle themselves to pay the stipulated 
 sum in full discharge of all damage, their case will return to 
 the ordinary rules, and while they on the one hand may become 
 liable to pay more than that sum, so the owners may be entitled 
 to demand less. The defendants chartered a ship to New 
 Zealand, and it was agreed that they were to load her there, or 
 by their agent to give notice that they abandoned the adven- 
 ture, in which case they were to pay bOOl. On the ship's 
 arrival there was no agent of theirs, either to supply a cargo, or 
 to abandon the adventure. The captain waited the prescribed 
 time, and then went in search of freight, and ultimately ob- 
 tained a cargo far more remunerative than that which the de- 
 fendants were bound to supply. He claimed to retain the 
 freight and to recover the 500/. also. It was held, however, — 
 1st, that if the defendants had given due notice of abandon- 
 ment, their obligation to pay the 500/. would have become 
 absolute, and that while the plaintiff could have recovered no 
 
 (o) Puller V. Staniforth, 11 East, 232. 
 
 (jp) 2 Taunt. 300.
 
 ACTIONS FOR IMPROPER DETENTION. 295 
 
 more, whatever his loss had been, they could have claimed no 
 reduction on account of his gains. 2ndly, that as no notice of 
 abandonment had been given, their right to close the transac- 
 tion by payment of 500^. had never attached, nor on the other 
 hand the right of the plaintiff to demand this sum. Therefore 
 the contract remained as if there had never been such a stipu- 
 lation. If the plaintiff had lost more than 500Z. he might have 
 recovered more ; but as he had in fact lost nothing, he was 
 only entitled to nominal damages for the breach of contract (q). 
 
 If the charterer himself consents to the owner's making any 
 profit of his ship, as, for instance, by taking an intermediate 
 trip between the outward and homeward voyage, no claim to a 
 reduction of freight can be set up on this account, even though 
 the result of the indulgence may be that higher freight is pay- 
 able by the defendant (?•)• 
 
 3. Claims by the shipowner against the charterer for im- Improper de- 
 proper detention of the ship are generally provided for by the gi^jp^ 
 clause regulating the rates for demurrage (s). In cases not so 
 covered, the questions will be : first, what did the charterer 
 undertake to do ; secondly, what was the natural result of his 
 failure to do it. A charter-party provided that a ship should 
 go to a foreign port for cargo, " and there, in the usual and 
 accustomed manner, load in her regular turn," When her turn 
 came the defendant was not ready to load her, and she was 
 detained eleven days. When her turn came round again the 
 defendant was ready, but the wind coming on to blow, and the 
 harbour being crowded, the harbour master refused to allow 
 the ship to go up to load, and she was delayed three days more. 
 The plaintiff sued on the charter-party claiming damages for 
 the detention. It was held that the proximate cause of the 
 detention for the three days was the def\iult of the defendant 
 in not performing his contract to load in regular turn, and 
 that he was liable to pay for the three days as well as for the 
 eleven (t). 
 
 (q) Staniforth v. Lyall, 7 P>ing. 169. 
 
 (r) Wiggins v. Johnston, 11 M. & W. 609. 
 
 (s) See Sanr/uhietti v. Pacijic Steam Nav. Co., 2 Q. B. D. 238 : French v. 
 Gerber, 2 C. P. D. 247. 
 
 (t) Jones V. Adamson, 1 Ex. D. 60 ; 45 L. J. Ex. 64. See for a some- 
 what similar case : Harris v. Jacobs, 15 Q. B. D. 247 ; .54 L. J. Q. B. 492. 
 As to delays caused by strikes, see Hick v. Raymond, [1893] A.C. 22 ; 62 
 L. J. Q. B. 98 : Castlegate S. S. Co. v. Dempsey, [1892] 1 Q. B. 854 ; 61 
 L. J. Q. B. 620. The Alne Holme, [1893] P. 173; 62 L. J. P. D. A. 51.
 
 296 
 
 ACTIONS AGAINST CARRIERS. 
 
 Dangerous 
 
 goods. 
 
 Actions against 
 carriers for not 
 taking goods. 
 
 4. There is an implied undertaking on the part of shippers 
 of goods on board a general ship that they will not, without 
 giving notice, ship packages of a dangerous nature, which the 
 servants of the shipowner may not, on inspection, be reasonably 
 expected to know to be of a dangerous nature. In case of 
 such a shipment causing damage, the shipowner must compen- 
 sate the shippers of other goods sustaining damage, and will 
 have a remedy against the shipper of the goods which have 
 caused the calamity (u). And so if personal injury is caused 
 to the carrier or his servants, and it is the probable consequence 
 of not giving notice, the sender is responsible (v). By 29 & 
 30 Vict. c. GO, carriers may refuse to receive goods declared to 
 be specially dangerous, and penalties are imposed on persons 
 sending them without notice, 
 
 II. Actions against carriers fall under the heads of actions 
 for not carrying at all, or for delay in carrying, or for loss of 
 or injury to the goods or persons carried. Many of the deci- 
 sions upon these points have already been cited and commeutcd 
 upon. 
 
 1. Damages against the owner of the ship for not taking a 
 cargo are regulated, on exactly the same principles as those 
 against the freighter for not supplying it, by the amount of 
 damages actually and necessarily incurred (.r). If the freighter 
 could not procure any other ship, the damages would of course 
 be measured by the injury suffered, from having his cargo left 
 on his hands ; bearing, however, in mind, that in all such 
 cases the damages suffered must be such as the contracting 
 parties were led to contemplate (//). If another ship could be 
 procured, the damages would be measured by the increased 
 rate of freight payable (z), and if such freight was in fact less 
 
 (u) Brass v. MaUIand, 6 E. & B. 470, 483 ; 26 L. J. Q. B. 49. The 
 shipper's duty was, by Crompton, J., limited to the obligation to take proper 
 care not to deliver dangerous goods without notice. AVhen the owner of the 
 vessel has an opportunity of inspecting the goods tendered for shi^jment, and 
 they have no concealed defects which would prevent his forming an opinion of 
 their fitness to be carried, no warranty of fitness can be inferred on the part 
 of the owner of the goods : Acatos v. Burns, 3 Ex. D. 282 ; 47 L. J. Ex. 566. 
 
 (r) Farrant v. Barnes, 11 0. B. N. S. 553 : 31 L. J. C. P. 137. 
 
 (x) Hunter v. Fry, 2 B. & A. 421, 427 : Walton v. Fotheryill, 7 C & P. 
 392. 
 
 (y) Iladlcy v. Baxcndale, 9 Ex. 341 ; 23 L. J. Ex. 179. 
 
 <z) Higginson v. Weld, 80 Mass. 165 ; Featherston v. Wilkinson, L. E. 
 8 Ex. 122 ; 42 L. J. Ex. 78.
 
 FOR NOT CARRYING AT ALL. 297 
 
 than that contracted for, the damages would of course be 
 merely nominal for breach of contract («). In all cases, how- 
 ever, the damages must be the necessary and immediate conse- Damages too 
 quence of the breach committed. A ship's husband covenanted '■*^"'°*^- 
 to load brandy on board a ship, and proceed with it to Madeira, 
 and the merchant covenanted to pay freight for it there, and 
 load it with a full cargo home. The merchant arranged at 
 Madeira to barter the brandy which he expected for fruit, 
 which was to form the cargo home. Xo brandy arrived, in 
 consequence of which he was unable to procure a cargo. The 
 ship's husband sued and recovered against him for not supply- 
 ing cargo. He then sued the ship's husband for not bringing 
 the brandy, laying as special damage that by reason of his not 
 doing so, plaintiff had been unable to procure a return cargo, 
 and in this way he claimed to recover the amount paid in the 
 former action and its costs. It was held that such damage 
 was too remote, and Tindal, 0. J., said, if I contract to transfer 
 stock and do not, the party with whom I contracted has no 
 right to tell me a month afterwards that if I had transferred the 
 stock he could have bought an estate with the money. There 
 was the case of a man who brought an action against the keeper 
 of a ferry-boat for refusing to carry him across a river, in con- 
 sequence of which he sustained loss by not being able to keep 
 an appointment. But it was held that he could not recover 
 damages on any such ground " (&). 
 
 If, however, the plaintiff, in order to perform a contract, is Natural result 
 forced to buy other goods at an increased price, in consequence °^ breach, 
 of the non-arrival of those which the defendant had contracted 
 to bring, this, it seems, is such a natural result of the defen- 
 dant's neglect as to cuticle him to recover his loss (c). 
 
 And so where the defendant agreed to carry 1300 tons of 
 coal from the Tyne to Havre, and by the custom of the colliery 
 trade the plaintiff was not allowed to secure a cargo till his 
 vessel was ready, and the defendant made default, and the price 
 of coal rose before the plaintiff could charter another vessel ; it 
 was held that the defendant was bound to make good the loss 
 
 (a) ITorne v. Bough, L. R. 9 C. P. at p. 137 ; 43 L. J. C. P. 70. 
 
 (b) Walton v. FothergiU, 7 C. & P. 394. 
 
 (c) Walton V. Fotheryill, ubi sup.
 
 298 
 
 ACTIONS AGAINST CAERIEES. 
 
 Malicious re- 
 fusal to carry. 
 
 P'ailurc to 
 supi)ly par- 
 ticular sort 
 of conveyance. 
 
 Failure to 
 carry passen- 
 gers. 
 
 occasioned by the difference of price, as it did not appear that 
 there was any correspondino^ rise of price at Havre (d). 
 
 In the case of carriers by land an absolute failure to carry 
 goods, in the sense of never commencing the carriage, seldom 
 occurs. In the well-known instance of the war waged by the 
 railway companies against carrying packed parcels, it was inti- 
 mated by Martin, B., that very heavy damages might be given, 
 if it were established that the defendants designedly refused to 
 take parcels which they were bound l)y law .to take, for the pur- 
 pose of getting a monopoly in their hands, and destroying the 
 plaintiff's trade (e). The declaration, however, did not admit 
 of the point being decided. 
 
 In a case in Ireland a railway company had contracted to 
 carry hay at so much per waggon, and to supply a particular 
 description of large waggon for the purpose. They failed to do 
 so. The plaintiff delivered five tons of hay, which they carried 
 in the ordinary small waggon, thereby causing increased cost to 
 the owner. The plaintiff' kept back the remainder of the hay 
 for some time, and then sold it, after notice to the comjiany, at 
 less than cost price. It was held that the plaintiff could only 
 recover the extra cost of conveyance arising from the freight 
 being calculated upon a waggon of less carryiug power. That, 
 as he had only sent five tons, the damages could only be assessed 
 in reference to this quantity, and that he was not entitled to 
 claim either for loss of profits which he would have obtained, if 
 all the hay had been carried to its destination, or for the loss 
 incurred by selhng the hay where it was, instead of sending it 
 on(/). 
 
 Where the contract is to carry passengers, a failure to do so 
 entitles them to procure another conveyance, and to charge the 
 defaulting party with the expense of the substituted convey- 
 ance, and with all other expenses necessarily and properly 
 incurred. A shipowner and emigration agent advertised ships 
 to sail on fixed days, for which written guaranties would be 
 given. The plaintiff paid half the passage-money for himself 
 and his family by the ship appointed to leave on the 25th 
 August, but neither asked for nor got a written guaranty of the 
 
 (d) Featherston v. Wilkinson, L. R. 8 Ex. 1:V2 ; 42 L. J. Ex. 78. 
 
 (e) Crouch v. G. N. Ry. Co., 11 Ex. 742 ; 25 L. J. Ex. 137. 
 (/) Irvine t. Midland Gt. Western Ry. Co., 6 L. E. Ir. 55.
 
 FOR DELAY IN CARRYING. 299 
 
 date of sailing. On arriving at the port of departure the plain- 
 tiff was informed that the vessel would not sail till the 3rd 
 September, and he then took a passage by another ship which 
 was to leave on the 1st. It was held that the advertisement 
 amounted to a guaranty of the date of sailing, and that the 
 plaintiff was entitled to recover the passage-money he had paid, 
 and the expenses he had incurred during his detention {g). 
 And on the same principle, where a railway company advertises 
 that they will run trains in such a manner as to enable pas- 
 sengers to reach a particular place at a particular time, if a 
 passenger takes a ticket, or is ready to take a ticket for that 
 place, and the company fail to carry out their part of the con- 
 tract, they will be liable for the reasonable consequences of 
 their default ; such as hotel expenses, or the expense of pro- 
 curing another conveyance, if the circumstances are such that 
 it would be proper for the passenger to take another convey- 
 ance instead of waiting for the next train (A). And mere 
 inconvenience will be a ground for damage, if it is such as is 
 capable of being stated in a tangible form, and assessed at a 
 money value {i). But circumstances which could not have been 
 foreseen, and are therefore not the natural result of the breach 
 of the contract, cannot be made the ground of a claim for 
 damages ; as for instance, that the passenger caught a cold from 
 having to walk, or lost an appointment by not arriving in time 
 to apply for it {j). 
 
 2. Damages for delay in carrying passengers or goods will Delay in 
 be governed by the same principles. Where the result of the can-ymg. 
 delay is absolutely to destroy the goods, as in the case of fruit, 
 fish, flowers, game, meat, or the like, if their nature was 
 known, the whole value would be recoverable {h). And it appears 
 to be now settled, that in the case of goods sent by land which 
 are, or may be supposed to be consigned for immediate sale, 
 the defendants would be Hable to make good any diminution in 
 
 (g) Cranston v. Marshall 5 Ex. 395 ; 19 L. J. Ex. 340. 
 
 \h) Denton V. G. N. Ry. Co., 5 E. & B. 860 ; 25 L. J. Q. B. 129 : Ilamlhi 
 V. G. N. Ry. Co., 1 H. & N. 408 ; 26 L. J. Ex. 20 : La Blanche v. L. & N. 
 W. Ry. Co., 1 C. P. D. 286 ; 45 L. J. C. P. 521 ; see ante, p. IS. 
 
 (i) Hamlin v. G. N. Ry. Co., uU sup. : Ilobbs v. L. <£• S. W. Ry. Co., 
 L. R. 10 Q. B. Ill ; 44 L. J. Q. B. 49. 
 
 (j ) See per Cockbum, C. J., in Hohhs v. L. d: S. W. Ry. Co., ubl sup. ; 
 ante, p. 48. 
 
 {k} Marrjetson v. Glynn, [1892] 1 Q. B. 337 ; 61 L. J. Q. B. 186.
 
 300 
 
 ACTIONS AGAINST CARRIERS. 
 
 Reasonable 
 
 expenses 
 
 in-jurred. 
 
 Remote 
 damages. 
 
 their value caused by a fall in the ordinary market price. But 
 la the case of goods sent by a long sea voyage, no such ground 
 of damage would be allowed, nor any damages occasioned by 
 the mere fact of detention, beyond interest on the invoice price 
 of the goods {T). Nor can damages ever be recovered in con- 
 sequence of the loss of a special contract, by virtue of which 
 the goods were to be resold on arrival at a rate higher than the 
 general market rate, unless such special contract was commu- 
 nicated to the defendant, and he had contracted to be answer- 
 able for such special damage {m). 
 
 So also other expenses, properly and naturally arising from 
 the detention of goods, will be recoverable as damages in an 
 action for negligence. As, for instance, the fair and reasonable 
 cost of searching for the goods, such as cab-hire, messengers, 
 postage, and the like ; or of purchasing [similar goods at the 
 place of their destination, where they were required for use. 
 But not special outlay incurred by the consignee in waiting at 
 the place of destination to receive the goods {n), or in removing 
 the goods to another and more profitable market (o). 
 
 Lastly, it is to be remembered, that a can-ier can never be 
 held responsible in damages for loss resulting from his delay, 
 where such loss arose not from the delay alone, but from the 
 existence of other circumstances unknown to him, which made 
 the delay be specially injurious. And it seems also that even 
 knowledge of those circumstances would not create a liability to 
 reimburse the loss without a contract to that eflFect {p). Nor 
 
 (J) The Parana, 2 P. D. 118 ; see ante, p. 16 : The Notting Hill, 9 P. D. 
 105 ; 53 L. J. P. D. & A. 56 : Wilson v. Lancashire (k Yorkshire Ry. Co., 
 9 G. B. N. S. 632 ; 30 L. J. C. P. 232 : Collard v. S. E. Ry. Co., 7 H. & 
 N. 79 ; 30 L. J. Ex. 393 ; ante, p. 14. 
 
 (m) Home v. Midland Ry. Co., L. R. 7 C. P. 583 ; 41 L. J. C. P. 264 ; 
 affirmed, L. R. 8 C. P. 131 ; 42 L. J. C. P. 59 ; ante, pp. 29, 32 : Rodocan- 
 achi V. Milhurn, 18 Q. B. D. 67 ; 56 L. J. Q. B. 202. 
 
 (?i) Woodger v. G. W. Ry. Co., L. R. 2 C. P. 318 ; 36 L. J. C. P. 177 : 
 Millen v. Brash, 8 Q. B. D. 35 ; 51 L. J. Q. B. 166 ; reversed on another 
 point, 10 Q. B. D. 142 ; 52 L. J. Q. B. 127. 
 
 (o) Black V. Baxendale, 1 Ex. 410 ; 17 L. J. Ex. 50. See the remarks of 
 BoviU, C. J., upon this case, L. R. 2 C. P. 321. 
 
 (p) Hadley v. Baxendcde, 9 Ex. 341 ; 23 L. J. Ex. 179, ante, p. 11 : 
 Gee V. Lancashire & Yorkshire Ry. Co., 6 H. & N. 211 ; 30 L. J. Ex. 11, 
 ante, p. 26 : G. W. Ry. Co. v. Rcdmayne, L. R. 1 C. P. 329, ante, p. 26 : 
 Hales V. L. & N. W. Ry. Co., 4 B. & S. 66 ; 32 L. J. Q. B. 292, ante, 
 p. 28 : British Columbia Saiv Mill Co. v. Kettleship, L. R. 3 C. P. 499 ; 
 37 L. J. C. P. 235, ante, p. 31. See Simpson v. L. d; N. W. Ry. Co., 
 1 Q. B. D. 274 ; 45 L. J. Q. B. 182, ante, p. 36.
 
 FOR LOSS OF OR INJURY TO GOODS. 301 
 
 in any case where the delay is not the proximate cause of 
 the injury complained of, but only a secondary or remote 
 cause (q). 
 
 "Where the charter-party contains a penalty, which is not Penalty, 
 liquidated damages, a larger sum than the penalty may be 
 obtained by suing, not for it, but for damages for the breach 
 of contract (r). 
 
 2. The damages in actious for loss of or injury to the goods Mode of calcn- 
 are generally confined to the value of the articles lost. And luting value of 
 
 ^ *' . goods in 
 
 it makes no difference that they have got into the hands of actions for loss 
 third parties who are also liable to the owner. For instance, °[ mjury to 
 the defendants, a railway company, delivered the plaintiff's 
 goods by mistake, not to the right consignee, but to J, S., who 
 had been in the habit of receiving the plaintiff's goods as his 
 factor. J. S. sold the goods, as he fancied he was authorised 
 to do, and rendered an account of the sale to the plaintiff. He 
 subsequently stopped payment. The plaintiff sued the defen- 
 dants for the goods, and it was held that he was entitled to 
 recover the amount for which they sold, and that he was not 
 prejudiced by having tried to obtain the proceeds of the sale 
 from J. S. This was no ratification of the defendant's act (s). 
 The only question then will be as to the mode of estimating Mode of 
 this value. It will be in general the market value of the goods ^^ "^°^ gooes, 
 at the place and time at which they ought to have been de- 
 livered (/), independently of any circumstances peculiar to the 
 plaintiff (ii). If from the smallness of the place or the scarcity 
 of the article or other reasons there is no market price, the real 
 value at the time and place must be ascertained, as a fact, by 
 the jury, taking into consideration the circumstances which 
 would otherwise have influenced the market price, if there had 
 been one, such as price at the place of manufacture, costs of 
 
 (q) Hohbsx. L. c(:S. W. Ry. Co., L. R. 10 Q. B. Ill ; 44 L. J. Q. B. 
 49, untc, p. 49. 
 
 \r) Winter v. Trimmer, 1 "\V. Bl. 395 : Ilarrisony. Wright, 13 East, 343 : 
 Maylam v. Norris, 2 D. & L. 829. 
 
 (s) Sanqucr v. L. <L- S. W. Ry. Co.,lQ C. B. 163. 
 
 (0 Rice V. Baxcndcde, 7 H. & K 96 ; 30 L. J. Ex. 371 : WiUon v. Lan- 
 mshirr d; Yorkshire Ry. Co., ante, p. 14: Sclmhe v. Gt. Eastern Ry. Co., 
 19 Q B D. 30 ; 56 L. J. Q. B. 442 : Collard v. S. E. Ry. Co., atne, p. 14 : 
 lyHanlan v. G. W. Ry. Co., 6 B. & S. 484 ; 34 L. J. Q. B. 154, cnite, p. 18. 
 
 (u) G. W. Ry. Co. V. Rcdmnyne, L. R. 1 C. P. 329. See per Ld. Eslier, 
 Rodocanachi v. Milbum, 18 Q. 13. D. at p. 77 ; 56 L. J. Q. B. 202.
 
 302 ACTIONS AGAINST CAERIERS. 
 
 carriago, and a reasonable sum for importer's profit (x). If 
 goods damaged on a voyage, are landed and sold by the master 
 without the assent of the owner, where such assent might have 
 been applied for, the measure of damages is not what the goods 
 sold for, but what they would have been worth to the owner if 
 they had not been sold. No counter-claim can be set up for 
 freight jn'O rata itineris (ij). In an action against shipowners 
 for loss of goods, Lord Ellenborough said that the plaintiflPs 
 were entitled to recover the value of the goods on board at the 
 time she was captured, by means of the deviation. That in the 
 absence of any other evidence, that value could not be taken as 
 more than the cost price and shipping charges, and that the 
 insurance premium could not be added, as no new value was 
 given to the goods by insuring them (s). Where, however, the 
 cargo was conveyed to its proper destination, and there handed 
 over to a person who was not entitled to it, it was decided that 
 its value at the port of discharge w^as the proper measure of 
 damages. Parke, J., said, " The plaintiffs are entitled to be 
 put in the same situation as they would have been in, if the 
 cargo had been delivered to their order at the time it was 
 delivered to B. ; and the sum it would have fetched at that 
 time, is the amount of loss sustained by the non-performance 
 of the defendant's contract (a). In a recent case Avhere the 
 owner of the ship was sued for the loss of goods, it appeared 
 that they had been shipped under a charter-party, which pro- 
 vided that the freight should be paid in advance, subject to 
 deduction for interest and insurance. The freight was paid 
 accordingly, and the amount insured. The goods were sold to 
 the plaintiffs at a price covering cost freight and insurance. It 
 was held that the plaintiffs were entitled to recover the advanced 
 freight. If there had been no insurance this would have been 
 part of the price of the goods, which they could have recovered 
 as damages, and kept for themselves. Being insured, they 
 were entitled to sue for it on behalf of the insurers, who were 
 subrogated to their rights in respect of the freight (h). Where 
 no evidence at all can be given, the question of value must be 
 
 (x) O'Mardany. G. W. Ry. Co., ante, p. 301. 
 
 (y) Acatos v. Burns, 3 Ex. D. 282 ; 47 L. J. Ex. 5G6. 
 
 (z) Parker v. James, 4 Camp. 112. 
 
 (a) Brandt v. Boidbif, 2 B. & Ad. 932, 939. 
 
 (6) Diifourctt V. Bishop, 18 Q. B. D. 373 ; 56 L. J. Q. B. 497.
 
 FOR LOSS OF OR INJURY TO GOODS. 303 
 
 resolved by the usual rules upon which presumptions of this 
 sort are governed (c). If any evidence of value is withheld by 
 the defendant, the goods, as against him, would be presumed 
 to be of the highest value articles of that nature were capable 
 of (d). Unless any sach circumstances existed, the jury would, 
 no doubt, as in a former case, be directed to give damages pro- 
 portioned to what they might consider to be the fair aud 
 probable value of the articles in question ; " and not to pare 
 down the amount of damages, because the articles could not be 
 distinctly proved " (e). "Where the plaintiff is not himself the 
 owner of the goods, but has only a qualified property in them, 
 he will be entitled to recover their whole value from the 
 carrier, if he is himself liable for their value to the owner ; 
 and it is not necessary that he should have actually paid the 
 owner (/). 
 
 Cases of special damage accruing from loss of goods, injury to 
 them, or delay in their delivery, are governed by the principles 
 laid down above. 
 
 The same question as to the mode of valuing goods that have 
 
 been lost to the owner, often arises in a different way. 
 
 It is the primarv duty of the master of a ship, acting for the When gooils 
 
 '- , . , i> 1 L- L- • n have been sola 
 
 owner, to convey the cargo to its place ot destination m the f^j. ^^^^^^ ^^ 
 
 same ship, and in case of damage to repair it. To accomplish ship. 
 
 the latter object, lie may, in cases of urgent necessity, sell the 
 
 cargo, which is, in effect, borrowing from the shipper through 
 
 the medium of a sale. Such a proceeding raises an implied 
 
 contract of indemnity from the owner, for whose benefit the 
 
 act was done, in favour of the shipper {[/). The question then 
 
 arises, at what value are the goods to be taken for the purpose 
 
 of this indemnity ? Where the ship has arrived, the owner is 
 
 entitled to the amount which they would have fetched at the 
 
 port of destination (h). If, however, the goods have actually 
 
 been sold for a higher price than they would have been worth ' 
 
 (c) See Spair/ht v. Farnworth, 5 Q. B. D. 115 ; 49 L. J. Q. B. 346. 
 
 {d) Armory v. Delamirie, 1 Stra. 505. 
 
 (e) Butler v. Basiwi, 2 C. & P. 613. See as to the effect of the bill of 
 ladin"- in establishing the actual quantity of cargo shipped : Lishman v. 
 Christie, 19 Q. B. D. 333 ; 56 L. J. Q. B. 538. 
 
 (/) Crouch V. L. c]- N. W. Ry. Co., 2 C. & K. 789. 
 
 (q) Benson v. Duncan, 1 Kx. 537 ; 3 Ex. 644. 
 
 (k) Alers V. Tohin, Abb. Ship. 372 ; 317, 12th ed. EaJlctt v. Wigram, 
 
 C. B. 580.
 
 304 
 
 ACTIONS AGAINST CARRIERS. 
 
 ■\Vlierc sliii> 
 ias aniveil. 
 
 AVbeie sliip 
 lias not 
 jiiTived. 
 
 t)Lligatioii 
 to i)rotect 
 irooils. 
 
 if delivered, it does not seem quite settled whether the owner 
 can claim this sum. In one case, where goods had been sold 
 in this manner, Lord EUenborough decided that the owner 
 might deduct the sum which they had brought from the 
 entire freight due (/). It does not appear, however, whether 
 the owner lost or gained by taking this standard. In another 
 case, where the selling price was decidedly higher than what 
 they would have fetched at their destination, and an arbitrator 
 adjudged the selling price to be due, the Court refused to set 
 aside the award, saying it did not clearly appear that it was 
 wrong. Holroyd, J., seemed inclined to think it was right. 
 He said, "There is strong reason for contending that the 
 owner of goods should receive a compensation for the goods 
 sold according to their highest value. If the master could get 
 money by other means, he had no right to sell ; and if he had 
 sold the goods, the owner ought to be entitled to the actual 
 proceeds, for the owner of the ship, in the event that has 
 happened, ought not to be allowed to make any profit by such 
 sale (./)." 
 
 Where the ship has never arri^"ed at her destination, but has 
 been lost since the sale, it is now settled that the goods cannot 
 be taken at their price at a place which they never could have 
 reached. It is not decided whether, in such a case, the owner 
 would be liable at all (Jc). The foreign codes and jurists are 
 at issue upon the point. Lord Tenterden, in his treatise (/)» 
 considers it to be the most reasonable doctrine that the money 
 should only be payable in case of the safe arrival of the ship, 
 as the merchant is not therel)y placed in a worse situation than 
 if his goods had not been sold, but had remained on board the 
 ship. On the other hand, the shipowner is clearly in a better 
 situation than if he had furnished the money himself, or it had 
 been borrowed on his credit. It seems curious that a case so 
 likely to occur in a mercantile country should never have been 
 decided. 
 
 The care which a shipowner is bound to take of goods carried 
 by him involves an obligatiou, not only to protect them against 
 
 (;■) CamphellY. Thompson, 1 Stark. 490. 
 (,/ ) Richarchon v. Xvitrsc, 3 15. k A. 237 
 {I') Atkinson v. Stcplwns, 7 Ex. 567. 
 [1) Abb. Ship. 37:2 ; 317, 12tb ed.
 
 ACTIONS FOR LOSS OF OR INJURY TO GOODS. 305 
 
 injuries incidental to the voyage, but also to take active 
 measures, so far as they are reasonably practicable under the 
 circumstances, to check and arrest loss or deterioration arising 
 from accidents for which he is not otherwise responsible. A 
 shipowner received beans for carriage. During the voyage a 
 collision occurred, which caused the beans to be wet. The ship 
 put back into port for repairs. During the delay so caused the 
 beans might have been put on shore and dried at a reasonable 
 cost, and if this course had been adopted the decomposition of 
 the beans would have been arrested. In consequence of no 
 such steps having been taken the beans suffered a further 
 damage, beyond that which would have accrued if they had 
 been taken out and dried. It was held that the shipowner was 
 liable to pay for this additional loss, after allowing the estimated 
 expenses of unshipping, drying, and rcshipping (m). 
 
 "Where a railway company grants an undue preference to one Undue 
 customer over another, this is an injury to the customer to preference, 
 whom it is refused, exactly in proportion to the benefit he 
 would have derived if it had been accorded to him. It is in 
 fiict an overcharge to that extent. He is, therefore, entitled to 
 reco\-er from the company a sum e(|ual to that which he would 
 have been saved, if the same advantages had been allowed to 
 him (n). 
 
 The liability of shipowners for loss not attributable to their Liability of 
 
 own default, has been restricted by statute in various cases, sliipowners for 
 
 loss csuscd bv 
 The Merchant Shipping Act, 1854 (o), s. 388, provides, that pilot; 
 
 no owner or master of any ship shall be answerable to any 
 
 person whatever for any loss or damage occasioned by the fault 
 
 or incapacity of any qualified pilot, acting in charge of such 
 
 ship, within any district where the employment of such pilot is 
 
 compulsory by law. This section will only protect the owner, 
 
 &c., where the loss occurred wholly from the fault of the pilot ; 
 
 and if it was, or may have been, partly the fault of the master 
 
 (»)i) Notara v. Henderson, L. R. 7 Q. B. 225 ; 41 L. J. Q. B. 158. See 
 as to loss to cattle by receiving them in an infected ship : TattersaU v. National 
 ^■. S. Co., 12 Q. B. D. 297 ; 53 L. J. Q. B. 332. 
 
 (n) Eversheel v. L. d: N. W. Ry. Co., 2 Q. B. D. 254 ; 46 L. J. Q. B. 289. 
 
 (n) 17 & IS Vict. c. 104 : this and the amending Acts apply in favour of a 
 railway company which carries passengers and goods partly by railway, and 
 ];ii-t".y by their own ships, where the damage complained of has occurred 
 during the transit by sea : L. <£,• S. W. Ey. Co. v. James, L. E. 8 Ch. 241. 
 
 M.D. X
 
 306 
 
 ACTIONS AGAINST CAKRIERS. 
 
 or by fire ; 
 
 or robbery in 
 certain cases. 
 
 \Vrongful sale. 
 
 Limitation of 
 liability for 
 loss of life or 
 personal 
 injury. 
 
 or crew, the liability continues (;;). This clause differs from 
 the corresponding section of G Geo. IV. c. 125, s. 55, which 
 extended the immunity to cases where a pilot was acting in 
 charge of the ship under any of the provisions of the Act. 
 Accordingly it was held, under that section, that the owner was 
 not liable when the pilot was taken on board under circum- 
 stances which did not make it compulsory on the defendant to 
 employ him, though he was bound to go, if required (q). Bub 
 under the Merchant Shipping Act, 1854, s. 388, the owners are 
 responsible for the negligence of the pilot where they are not 
 under compulsion to put him in charge of their vessel (r). 
 
 No owner of any sea-going ship, or share therein, shall be 
 liable to make good any loss or damage that may happen, with- 
 out his actual fault or privity, to any goods by reason of any 
 fire on board ; or to any gold, silver, diamonds, watches, jewels, 
 or precious stones, by reason of any robbery or embezzlement, 
 unless their nature and value has been inserted in the bills of 
 lading or otherwise declared in writing to the master of the ship 
 at the time of shipping (s). 
 
 But where the cause of action arises out of a wrongful sale 
 of goods by the master of a ship, the whole value of the goods 
 may be recovered in trover {t). 
 
 The Merchant Shipping Act Amendment Act, 1862 (25 & 
 2G Vict. c. G;-;) s. 54, further provides that the owners of any 
 ship, whether British or foreign, shall not, in cases where 
 without their actual fault or privity, loss of life or personal 
 injury is caused to any person, being carried in such ship ; or 
 damage or loss caused to goods, merchandise, or other things 
 on board such ship ; or where by reason of the improper 
 navigation of such ship loss of life or personal injury is caused 
 to any person carried in any other ship or boat, or loss or 
 
 ip) The lona, L. R. 1 P. C. 426 : The Velasquez, L. R. 1 P. C. 494 ; 
 4 Moo. P. C. N. S. 426 ; 36 L. J. Adm. 19 : The Ocean Wave, L. R. 3 P. C. 
 205 : Stuart v. Iseriionrjer, 4 Moo. P. C. 11 : Hammond v. Rogers, 7 Moo. 
 P. C. 170 : Rodrijues v. MeUmish, 10 Ex. 110 ; 24 L. J. Ex. 26. 
 
 {q) Lucey v. Ingram, 6 M. & W. 302. 
 
 (r) The Lion, L. R. 2 C. P. 525 : The Stettin, Br. & Lush. 199. The 
 pilot need not be compulsorily employed at the spot where the accident 
 happens, if he has been compulsorily employed within the district where it 
 happens : General Steam Nav. Co. v. British and Colonial Steam Nav. Co., 
 L. R. 4 Ex. 238 ; 38 L. J. Ex. 97 ; in Ex. Ch. 
 
 {s) 17 & 18 Vict. c. 104, s. 503. 
 
 (0 Morris v. Robinson, 3 B. & C. 196, 205.
 
 incut. 
 
 STATUTORY LIMITATION OF LIABILITY. 307 
 
 <lamage caused to any other ship or boat, or to goods, 
 merchandise, or other things on board any other ship or boat, 
 be answerable in damages, in respect of loss of life or personal 
 injury, either alone or together with loss or damage to ships, 
 boats, goods, merchandise, or other things, to an aggregate 
 amount exceeding 15/. for each ton of their ship's tonnage ; 
 nor in respect of loss or damage to ships, goods, merchandise, or 
 other things, whether there be in addition loss of life or personal 
 injury or not to an aggregate amount exceeding 8/. for each 
 ton of the ship's tonnage. The tonnage is to be the registered 
 tonnage in the case of sailing ships, and in the case of steam 
 •ships the gross tonnage without deduction on account of engine 
 room ; and a mode of ascertaining the tonnage of foreign ships 
 is prescribed {u). 
 
 The cost of recovering compensation, either by suit against Costs of suit, 
 ■the owners, or by process against the ship, may be recovered 
 beyond this extent (j-). And so also may interest on the limited 
 .amount from the date of the injury (//). 
 
 Under the section which requires the value of certain articles Foreign ship- 
 to be stated, it has been held that if the shipment is made in a 
 foreign country, it will be sufficient to state their value at that 
 place in the coin of the realm. But Lord x\binger, C. B., 
 ■doubted strongly whether the Act applied at all to shipments 
 made from a port which is not governed by the law of England. 
 
 («) Under the repealed sections of the former Act, 17 & 18 Vict. c. 104, 
 ss. 504, 505, the shipowner's liability was restricted to the value of ship and 
 freight, to be taken in case of loss of life or personal injury, at not less than 
 151, per registered ton. By s. 506, which is still in force, the owner is liable 
 for loss and injury arising on distinct occasions, to the same extent as if no 
 ■other loss or injury had arisen. As to the power of the Court of Admiralty 
 over freight since the Act of 1862, see The Orpheus, L. R. 3 A. & E. 308 ; 
 40 L. J. Adm. 24. 25 & 26 Vict. c. 63, has operation on the high seas, and 
 applies both to British and foreign ships : The Amalia, 32 L. J. Adm. 191. 
 It may be mentioned here that Lord Campbell's Act (9 & 10 Vict. c. 93) was 
 held to extend to a case where the person in respect of whose death damages 
 were sought was an alien, and at the time of the collision causing death, was 
 on board a foreign vessel on the high seas : The Explorer, L. II. 3 A. & E. 
 289. The Court of Admiralty has no jurisdiction over suits for jjersonal 
 injury resulting in death : Smith v. Brown, L. R. 6 Q. B. 729 ; 40 L. J. Q. 
 B. 214. By the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104) s. 512, 
 no action can be brought in case of loss of life, or personal injury, agaiust the 
 owner of a ship, until the Board of Trade has held an inquiry or refused to 
 <lo so. 
 
 (x) Ex parte Rayne, 1 Q. B. 982. 
 
 (y) The Northumbria, L. R. 3 A. & E. 6 : Smith v. Kirhy, 1 Q. B. D. 131. 
 
 X 2
 
 808 
 
 ACTIONS AGAINST CAREIERS. 
 
 Inland navi- 
 gation. 
 
 Liability of 
 land can-iers 
 at common 
 law. 
 
 Carriers Act. 
 
 At most, he said, the statute could only apply where the ship- 
 ment was made to England (z). 
 
 None of the clauses above cited extend to small craft, lighters, 
 boats, gabbets, &c., concerned in inland navigation (a). Nor 
 does the immunity from loss by fire protect against losses 
 arising from a fire on board a public lighter employed by ship- 
 owners in transporting cargo to a ship, which would itself be 
 within the statute (b). 
 
 The Legislature' has also interfered in the case of carriers by 
 land. The great extent of their liability at common law, 
 which was held to amount to a contract of insurance upon 
 goods entrusted to them, had naturally caused an effort on 
 their part to reduce it. This they used to do by notices, in 
 the shape of advertisements, handbills, placards in their offices, 
 and so forth, stating that they would not be liable for any 
 property beyond a certain value, unless paid for at an extra 
 rate when delivered. This amounted to a special contract, 
 binding on the owner of the goods, when brought home to his 
 knowledge. It fell short of their intention, however, in two 
 respects. In the first place, it was absolutely necessary to 
 show that the notice had come to the knowledge of the plain- 
 tiff (c), though no proof of an agreement to it on his part 
 was required (d). In the next place, it was decided, that even 
 a notice with which the plaintiff was proved to be acquainted 
 would not protect the defendant, when the loss occuiTed from 
 any act amounting either to a misfeasance and utter renuncia- 
 tion of his character as carrier, or even to what the Courts 
 termed " gross negligence " (e). 
 To remedy this state of things the Carriers Act(/) was 
 
 (z) Gihis V. Potter, 10 M. & W. 70 ; decided on 26 Geo. III. c. 86, s. 3, 
 similar in terms to 17 & 18 Yict. c. 104, s. 503. Sucli a description of goods 
 as "one box, containing about 248 ounces of gold dust," is not a declaration 
 of the true nature and value : Williams v. African Steam Ship Co., 1 H. & 
 N. 300 ; 26 L. J. Ex. 69. 
 
 (a) Hunter v. M'Goiven, 1 Bligh. 5S0. 
 
 (b) Moretcood v. Pollol; 1 E. & B. 742 ; 22 L. J. Q. B. 250. 
 
 (c) Kerr v. Willan, 6 M. & S. 150 : Walker v. Jaclson, 10 M. & "W. 
 161. 
 
 {d) Niclwlson v. Willan, 5 East, 507 : Mayhew v. Eamcs, 3 B. & C. 601. 
 
 (e) Birhtt V. Willan, 2 P.. & A. 356 : Garnett v. Willan, 5 B. & A. 53 : 
 Shat V. Far/f/, ibid., 342 : Owen v. Burnett, 2 C. & M. 353 : Lowe v. Booth, 
 13 Price, 329. 
 
 (/) 11 Geo. lY. and 1 \V. IV. c. 63.
 
 STATUTORY LIMITATION OF LIABILITY. 309 
 
 passed. It enacts ig) that no common carrier by land (Ji), for 
 hire, shall be liable for the loss of or injury to any gold or 
 silver, whether manufactured, unmanufactured or in coin, 
 precious stones, jewellery, w^atches, clocks, time-pieces, trin- 
 kets («), bills, bank-notes, orders, notes or securities for pay- 
 ment of money ijc), stamps, maps, writings, title-deeds, paint- 
 ings, engravings, pictures (/), gold or silver plate or plated 
 articles, glass, china, silks, manufactured or unmanufactured, 
 wrought up with other materials or not (jn), furs (« ), or lace (o), 
 contained in any parcel, when the value exceeds 10^., unless 
 its value has been declared {p), and an increased charge paid 
 
 {g) S. 1. 
 
 ill) A contract to caiTy partly by land and partly by sea is divisible, and as 
 to the land journey, the carrier is protected : Le Conteurv. L. <£• <S'. W. Ry. Co., 
 6 B. & S. 961 ; L. K. 1 Q. B. 54 ; 33 L. J. Q. B. 40 : Plaackuii v. Same, 
 18 C. B. 226. 
 
 (i) A gold chain used for an eye-glass held not to be a trinket: Daveyv. 
 Mason, Car. & M. 45 ; but it has since been held that articles of use or neces- 
 sity, such as shirt-pins, bracelets, brooches, portemonnaies, or smelling-bottles, 
 if so much ornament is superadded as to make their main object ornament, 
 are trinkets : Bernstein v. Baxendale, 6 C. B. N. S. 251 ; 23 L. J. C. P. 
 265. 
 
 (Ji) Where an instrument was lost, bearing a bill of exchange stamp, and 
 drawn in the following form : " Three months after date pay to me the sum of 
 \\l. Ids. value received. To Mr. C, &c." And written across it was an 
 acceptance by C. The parcel containing the instrument was addressed to A. , 
 a creditor of C, with the intention that A. should put his name to it as 
 drawer. Held that it was not a bill, as it had neither drawer nor payee, nor 
 a note as it contained no promise to pay. That it was a "writing," but not 
 of any value at the time of delivery, as no one but A. had power to complete 
 it : Stoessiger v. S. E. Ry. Co., 3 E. & B. 549 ; 23 L. J. Q. B. 293. 
 
 {I) Wliere a picture is framed, the frame, as forming part of the picture, 
 is within the Act : Henderson v. L. J> .V. W. Ry. Co., L. R. 5 Ex. 90. In 
 a previous case, where a packing-case containing a lace design, in a gilt frame 
 covered with glass, was lost on its way to an ecclesiastical art exhibition, the 
 owner, though the lace came within the Act, was allowed to recover the value 
 of the frame and the packing-case, the frame being considered not a constituent 
 part of the lace design, aud the packing-case being accessory to the frame as 
 much as to the lace : Treadwin v. G. E. Ry. Co., L. R. 3 G. P. 308 ; 37 L. 
 J. C. P. 83. 
 
 (m) Lord Abinger ruled that silk dresses made up for wear were not within 
 the Act : Dairy v. Mason, Car. & M. 45 ; but this must now be considered 
 as overruled : see Bernstein v. Baxendale, 6 C. B. N. S. 251 ; 28 L. J. C. P. 
 265, where silk guards were held to come within the Act ; and Brunt v. 
 Midland Ry. Co., 2 H. & C. 889 ; 33 L. J. Ex. 187, where the same was 
 held of elastic silk webbing. So Flowers v. S. E. Ry. Co., 16 L. T. N. S. 
 329 ; W. N. 1867, p. 155. 
 
 (?i) Hat bodies, composed partly of the soft substance taken from the skin 
 of rabbits, partly of the wool of sheep, were held not within this section : 
 Mavhcw V. Nelson, 6 C. & P. 58. 
 
 (o) By 28 & 29 Vict. c. 94, s. 1, this is to be construed as not including 
 machine-made lace. 
 
 (p) As to what is not a sufficient declaration of value, see ante, p. 308, 
 note (z).
 
 310 ACTIONS AGAINST CARRIERS. 
 
 at the time of the delivery. A notice of such increased rate of 
 charges, fixed in the office in legible characters, is to bind all 
 parties sending parcels, without proof of their knowledge (g). 
 But the carrier will not be entitled to the benefit of the Act, 
 unless such notice is affixed, or in case of his refusal to give a 
 recaipfc for the parcel insured (r). The common law liability 
 of carriers for articles not enumerated above cannot be limited 
 by a mere notice (s), but it may by a special contract. The- 
 extra costs of insurance may be recovered as damages in an 
 action for loss or injury to goods (t). On the other hand, the 
 declared value will not be conclusive against the carrier as to 
 its real worth (w)- The Act does not protect the carrier from- 
 Cases to whicli liability to answer for losses or injury arising from the felonious 
 Act does not ^^^^^g ^^ ^^-^y. servant in his employ ; nor does it protect the 
 servant from liability on account of his own neglect or mis- 
 conduct (;r). Therefore where goods, within the terms of th& 
 Act, and not insured, have been lost by felony of a servant, it 
 is sufficient, in answer to a plea setting up notice of an extra 
 charge which was not paid, to reply the felony without averring 
 negligence. " Under the statute felony by a servant is a 
 sufficient answer to the defence set up by the carrier, and 
 negligence has nothing to do with it ; and, on the other hand,. 
 under the carrier's notice negligence is the sole question. 
 Special felony is immaterial " (y). Where there has been a special 
 
 contract in sufficiently wide terms, no negligence, however 
 gross, will make the defendant liable (z). The fact of goods- 
 
 (q) S. 2. (r) S. 3. (s) S. 4. 
 
 (t) S. 7. (m) S. 9. (x) S. 8. 
 
 (y) G. W. By. Co. V. Rlmcll, 18 C. B. at p. 585 ; 27 L. J. G. P. 201 : 
 per Jervis, C. J., explaining Butt v. G. W. Eij. Co., 11 C. B. 140 ; 20 L. J. 
 0. P. 241 : so Treadwln v. G. E. Ry. Co., L. R. 3 C. P. at p. 310, per 
 Willes, J. The felony must be brought home to the carrier's servants, and it 
 is not sufficient to show that some one must have stolen the goods : Metc.alf 
 V. L. B. tfc S. C. Ry., 4 C. B. N. S. at p. 311 ; 27 L. J. 0. P. 333. At least 
 facts must be proved which make it more probable that the felony was 
 committed by some one or other of the company's servants, than by any one 
 not in their employment : Vaur/Jiton v. L. <£,■ N. W. Ry. Co., L. R. 9 Ex. 93 ; 
 43 L. J. Ex. 75. The greater opportunity of committing a theft which the 
 company's servants have, will not alone make out a prini'i facie case against 
 the company : McQueen v. G. IF. Ry. Co., L. R. 10 Q. B. 569 ; 44 L. J. Q. 
 B. 130. >/ ' -i , ^ 
 
 (z) Austin \. Manchester Ry. Co., 10 C. B. 454 : Carr v. Lancashire Ry. 
 Co., 7 Ex. 707 : MorviUe v. G. N. Ry. Co., 21 L. J. Q. B. 319 : Peek 
 V. Aorth Staffordshire Ry. Co., 10 H. L. G. at p. 494 ; 32 L. J. Q. B, 
 at p. 250, per Blackburn, J. For examples of contracts held not to relieve 
 
 contract.
 
 STATUTORY LIMITATION OF LIABILITY. 311 
 
 being received by a common carrier, under a special contract, 
 does not deprive him of the protection of the Act, unless the 
 terms of the contract are such as to be inconsistent with the 
 goods having been received by him in his capacity of a common 
 carrier (a). 
 
 Where a carrier would be protected under this statute from Temporary 
 damages incurred by the actual loss of the goods, he will be ^°^^- 
 equally protected where there has been only a temporary loss, 
 even though the detention arising from such temporary loss 
 causes damage to the owner, which is not made up for by the 
 ultimate delivery of the goods to him (b). 
 
 The length to which the decisions upon this point had gone, Provisions of 
 caused the Legislature to interfere. Accordingly it is provided ^j^jJ^rTraffii 
 by the Railway and Canal Traffic Act, 1854, 17 & 18 Vict. c. Act, 1854. 
 81, s. 7 (c), that every notice, condition, or declaration by which 
 any railway or canal company shall limit its liability for loss 
 caused by its own neglect or default, shall be void, unless 
 deemed to be reasonable by the Court or judge before whom 
 any question relating thereto is tried. They are only to be 
 liable, however, to the extent of 50/. for a horse, 15/. for neat 
 cattle, and 2/. for pigs and sheep, unless they have been paid 
 for on an additional value. Proof of value is to rest upon the 
 owner. " All special contracts must be signed by the party to be 
 bound by them. Nothing in this Act is to atfect the privileges 
 of the company under 11 Geo. IV. and 1 Will. IV. c. 68, as to 
 articles enumerated in it. 
 
 Upon 17 & 18 Vict. c. 31, s. 7, it has been decided that the 
 
 from liability to make good loss arising from excepted perils, where caused 
 by the carrier's negligence, see Phillips v. Clark, 2 C. B. N. S. 156 ; 26 L. J. 
 C. P. 168 : Martin v. Great Indian Peninsula Ry. Co., L. R. 3 Ex. 9 ; 37 
 l! J. Ex. 27 : Czech v. Gen. Steam Nav. Co., L. R. 3 C. P. 14 ; 37 L. .1. 
 (J P. 3. As to what constitutes a special contract, see Anderson v. Chester 
 ci- Uoluhead Ry. Co., 4 Ir. C. L. R. 435. 
 
 {a) Baxendale v. G. E. Ry. Co., L. R. 4 Q. B. 244 ; 38 L. J. Q. B. 137, 
 in Ex. Ch. 
 
 (b) Millen V. Brash, 10 Q. B. D. 142 ; 52 L. J. Q. B. 127 ; reversing S. C. 
 8 Q B D. 35 ; 51 L. J. Q. B. 166. See, as to what is a detention of goods : 
 Gordon v. Gt. West. Ry., 8 Q. B. D. 44 ; 51 L. J. Q. B. 58. 
 
 (c) Extended, so far as applicable, to traffic carried on by railway com- 
 panies in steam vessels by the Railway Clauses Act, 1863, 26 & 27 Vict. c. 92, 
 s. 31. By the ReguIatio"n of Railways Act, 1868, 31 & 32 Vict. c. 119, s. 14, 
 a railway company contracting to carry, partly by railway and partly by sea, 
 may limit their liability during sea transit by a condition conspicuously pub- 
 liiihed at their booking othce, and printed on the receipt or freight note.
 
 312 ACTIONS AGAINST CARRIERS. 
 
 Decisions upon conditions Capable of being imposed by railway companies in 
 SnlTlYalfic limitation of their liability as common carriers, must not only 
 Act, 1854. be in the opinion of the Court or judge just and reasonable, 
 but must also be embodied in a special contract in writing, 
 signed by the owner or sender of the goods (d). The railway 
 company cannot set up the want of a signature, the proviso 
 only applying to cases where the railway company is claiming 
 exemption from lial)ility by reason of there being a special 
 contract, in which case the otlier party is not to be bound 
 by a contract which he or the person delivering the goods h;is 
 not signed (e). The statute expressly applies to injuries done 
 in the "receiving, forwarding, and delivery," therefore where 
 a horse brought into a railway company's station yard for the 
 purpose of being sent by train, was, before any contract f^r 
 carriage had been made, injured by the sharp edge of some 
 girders left there through the negligence of the company's 
 servants, the company were held protected from liability for 
 any greater damages than 50/., although the usual practice at 
 the station was that a ticket should be got after the horse had 
 been put into a horse-box (/). But the Act only extends to 
 
 (fZ) M'Manus v. Lancashire, dc, Ry. Co., 4 H. & N. 327 ; 28 L. J, 
 Ex. 353, in Ex. Cb. : Peek v. North Staffordshire Ry. Co., 10 H. L. C. 473. 
 32 L. J. Q. 13. 241 ; per Lord Westbury, C, and Lord Wensleydale. Simons 
 y. G. W. Ry. Co., 18 C. B. 805; 26 L. J. C. P. 25. The numerous cases 
 in which conditions have been held reasonable or unreasonable, will be 
 found collected in the note to Coggs v. Bernard, 1 Smith's Leading Cases at 
 pp. 250, et scq. 9th ed. No better general rule has been lail down than 
 that stated in the opinion of Blackburn. J., in Dom. Proc. {Feeh v. North 
 Staffordshire Ry. Co., 10 H. L. G. at p. 511 ; 32 L. J. Q. B. 252), that a 
 condition exempting carriers wholly from liability for the neglect and default 
 oC their servants, in prima facie unreasonable ; but if the carrier is willing to 
 carry for a reasonable remuneration, but at the same time offers in the alter- 
 native to carry on the terms that he shall have no liability at all. and holds 
 forth as an inducement a reduction of the price below that which would be 
 reasonable remuneration for carrying at carrier's risk, or some additional 
 advantage which he is not bound to give and does not give to those who 
 employ him with a common law liability, the condition may be reasonaMe. 
 (See, in addition, Rooth v. N. E. Ry. Co., L. R. 2 Ex. 173 ; 36 L. J. Ex. 
 83.) In Harrison v. L. B. d: S. C. Ry. Co., 2 B. & S. 122 ; 31 L. J. Q. P.. 
 113, Erie, C. J., and Keating, J., held that the operation of the section was 
 confined to losses caused by misconduct on the part of the railway company, 
 and not to losses occurring through pure accident ; but the judgment of the 
 Court was not given upon this point. See as to injuries to doi;s received for 
 transport : Dickson v. Gt. Northern Ry. Co., 18 Q. B. D. 177 ; 56 L. J. (i. 
 B. Ill, 
 
 (e) Baxendale v. G. E. Ry. Co., L. R. 4 Q. B. 244 ; 38 L. J. Q. B. 137. 
 
 (/) Ifodr/man v. West Midland Ry. Co., 5 B. & S. 173 ; 33 L. J. Q. B. 
 233 ; affirmed in Ex. Ch. 6 B. & S. 560 ; 35 L. J. Q. B. 85.
 
 STATUTORY LIMITATION OF LIABILITY. 313 
 
 the traffic on a company's own lines, and not to a contract 
 •exempting a company from lo;S on a railway not belonging 
 to or worked by them (ff). The statute does not apply to 
 articles deposited in the railway company's cloak-room, 
 because the company do not receive them in the capacity of 
 •carriers (h). 
 
 The word "loss" in 11 Geo. IV. and 1 Will. IV. c. G8, only Meaning of _^ 
 refers to cases where the chattel is cither abstracted or other- 
 wise lost from the personal care of the carrier, or from the 
 place where it ought to be, and by reason of such loss is 
 incapable of being delivered at the proper time. It does not 
 protect the carrier in all cases where the owner of the article 
 suffers damage from the neglect of the defendant to carry. 
 Therefore, where the declaration stated that, through the 
 neghgence of the defendants his luggage was delayed a long 
 itime, during which he was deprived of its use, a plea which 
 merely alleged the fact of a notice being affixed, and no decla- 
 ration of the value of the goods in question, which was above 
 10/., was held bad. It should have gone on to allege such a 
 loss as is described above (i). 
 
 The declaration of value must be made in the first instance Value miist Tie 
 by the sender of the goods, whether they are delivered at the grsUnstancc. ^ 
 office of the carrier, or at the sender's house, or on the road, 
 •or elsewhere. In no case can the sender recover, unless lie has 
 taken the step which the Legislature intended he should take 
 , in the first instance (Jc). And he must make the declaration 
 with the intention that it shall be understood as a declaration 
 ■of value, and for the purpose of insurance (I). But when he 
 has declared the value it is for the carrier to demand the in- 
 creased rate to which he may be entitled, and if he does not do 
 so, and the ordinary rate is paid, he is not protected by the 
 statute from his ordinary common law liability in case of loss 
 or injury happening to the goods during the journey (m). 
 
 in) Z'unz V. S. E. El/. Co., L. R. 4 Q. B. 539 ; 38 L. J. Q. B. 209. 
 
 (h) Van Toll v. S. E. Ry. Co., 12 C. B. N. S. 75 ; 31 L. J. C. P. 241. , 
 
 (i) Beamy. S. W. Hy. Co., 10 Ex. 723 ; 24 L. J. Ex. 180. See lUillen 
 V. Brash, ante, p. 311. 
 
 (k) Hart y. Baxenclale, 6 Ex. 769, in Ex. Ch. 
 
 {I) Kohinson v. L. tt 8. JF. By. Co., 19 C. B. N. S. 51 ; 34 L. J. C. P. 
 234 ; decided upon 17 & 18 Vict. c. 31, s. 7. 
 
 (m) Bchrcns v. G. N. Ry. Co., 7 H. & N. 950 ; 31 L. J. Ex. 299, in 
 Ex. Ch.
 
 314 
 
 ACTIONS AGAINST TELEGEAPH COMPANIES. 
 
 Fraud in con- 
 tealifiL' value. 
 
 TelegrapLic 
 luessajres. 
 
 Even in cases not within the protection of the Act,, the- 
 plaintiff cannot recover the value of the article, if he has used 
 fraud in concealing its character {n). Upon the same principle,, 
 if he makes an untrue statement of the value, upon which the 
 contract between himself and the carrier is based, he is not 
 at liberty aftervvards to deny the truth of the statement and 
 show that the real value was greater (o). Where the contract 
 is to carry a particular species of goods, such as passenger's, 
 luggage, the carrier is not respo.:sible for injury to a perfectly 
 different species, such as merchandise, which he may happea 
 to be carrying with him, and which the plaintiff, even without 
 fraud, procures to be carried, without notice to the carrier of 
 its nature (p). If, however, the defendants, with full notice of 
 its character, choose to treat it as luggage, they will be respon- 
 sible for its loss {(/). 
 
 The character in which Eleciric Telegraph Companies re- 
 ceive and undertake to forward messages, and their respon- 
 sibility for loss occasioned by eri'or or delay in transmission,, 
 have of late years given rise to much discussion, especially in 
 America, where most conflicting opinions have been expressed.. 
 In England, the Court of Queen's Bench, after considering 
 
 («) Gihhon V. Payntnn, 4 Buit. 2298 : Batson v. Donovan, 4 B. & A. 21 :: 
 Walker V. Jackson, 10 M. & W. IGl. 
 
 (o) M'Cance v. L. A N. W. Hy. Co., 3 H. & C. 313 ; 34 L. J. Ex. 39, 
 in Ex. Ch. 
 
 {f) Belfast ct- Balhjmcna Ry. Co. v. Keys, 9 H. L. C, 556. 
 
 [q) G. N. Ry. Co. V. Slieplicrd, 8 Ex. 30 ; and see, as to amount of notice, 
 Boys V. Pink, 8 C. & P. 361. The mere fact that a package looks like 
 merchandise and is marked "glass," is not enough to fix the carrier with 
 responsibility : Cahill v. L. & N. W. Ry. Co., 10 C. B. N. S. 154 ; 30 L. J. 
 C. P. 289 ; affirmed in Ex. Ch. 13 C. B. N. S. 818 ; 31 L. J. G. P. 271. It 
 has been held that pencil sketches do not form part of the ordinary luggage of 
 an artist ; Mytton v. Midland Ry. Co., 4 H. & K. 615 ; 28 L. J. Ex. 385 ; 
 nor title-deeds to be produced at a trial, nor bank notes for the expenses of a 
 trial, the ordinary luggage of an attorney : Phdps v. L. Jj N. W. Ry. Co., 
 19 C. B. N. S. 321 ; 34 L. J. C. P. 259 ; nor a rocking-horse that of a father 
 going home to his children : Iludv.ton v. Midland Ry. Co., L. K. 4Q. B. 366 ; 
 38 L. J. Q. B, 213 ; but in a very recent case it has been said that ordinary 
 ]iersonal luggage must be construed relatively to the habits and wants of 
 ditlerent classes of travellers, and thus may include the gun-case or fishing 
 apimratus of the sportsman, the easel of the artist on a .sketching tour, or the 
 books of a student, and other articles of an analogous character, the use of 
 whicli is personal to the traveller, and the taking of which has arisen from 
 the fact of his journeying : Macrow v. G. W. Ry. Co., L. R. 6 Q. B. 612 ; 40 
 L. J. Q. B. 300. Where a servant took with him the luggage of his master 
 who was coming by a later train, the company were held not responsible : 
 Bechcr v. G. E. Ry. Co., L. R. 5 Q. B. 241 ; 39 L. J. Q. B. 122.
 
 STATUTORY LIMITATION OP LIABILITY. SIS' 
 
 the American cases which were brought to their notice, have 
 refused to recognise any analogy between the consignment of 
 goods through a carrier and the transmission of a telegram. 
 They accordingly held that the message having been sent by 
 the sender on his own account, and not as agent for the person 
 to whom it was addressed, there was no privity between the 
 latter and the company, and that he could not be said to have 
 any property in the message any more than he would have had 
 if it had been sent orally l)y the servant of the sender, and 
 that tlie obligation of the company to use due care and skill 
 in transmission was one arising entirely out of the contract 
 between them and the sender (r). The telegraph companies 
 in general limit their responsibility by special conditions, 
 which by some of their incorporating Acts must be reason- 
 able (5-). Under the Telegraph Acts, 18G8, 1SG9 (/), telegraphic Telegraph 
 messages are now carried by the Postmaster-General, who is not 
 a common carrier, nor responsible for the neglect or misconduct 
 of his inferior officers (m). Nor is the sender responsible for 
 mistakes made in transmJssion, the Post Office authorities 
 being only his agents to transmit the message in the terms in 
 which he delivered it (x). 
 
 (r) Play ford v. United Kingdom Electric Telegraph Co., L. R. 4 Q. B, 
 706 ; 38 L. J. Q. B. 249 : Dickson v. Renter's Telegraph Co., 2 C. P. D. 
 62 ; 46 L. J. C. P. 197 ; affirmed 3 C. P. D. 1 ; 47 L. J. G. P. L 
 
 (s) A condition that the company would not be responsible for unrepeated 
 messages has been held reasonable : MacAndrew v. Electric Telegraph Co., 
 17 C. 13. 3 ; 25 L. J. C. P. 26. 
 
 {t) 31 & 32 Vict. c. 110, and 32 & 33 Vict. c. 73. 
 
 (m) Lane v. Cotton, 1 Ld. Raymond, 6-16 : Whitfield v. Lord Despcncer, 2 
 Cowper, 754. The principal American cases will be found referred to inc. 30 
 of Shearman and Redfield on the Law of Negligence (the authors of which work 
 still maintain the oj^inion that telegraph companies are common carriers of mes- 
 sages), and in a note to the 7th edition of Sedgwick on Damages, vol. ii., p. 122 
 (1880). It would seem that the same rules respecting remoteness of damage 
 should be applied as in the case of other contracts : and in Landsherger v. 
 Magnetic Telegraph Co., 32 Barb. 530, the supreme court of New York 
 acted upon the rule laid down in Hadley v. Baxendale, and Griffin v. Golver, 
 16 N. Y. 494. So Stevenson v. Montreal Telegraph Co., 16 Up. Canada 
 Q. B. 530 : Sanders v. Stuart, 1 C. P. D. 326 ; 45 L. J. C. P. 682 ; ante, 
 p. 47, et seq. 
 
 (x) Henkel v. Pape, L. R. 6 Ex. 7 ; 40 L. J. Ex.15.
 
 CHAPTER XL 
 
 CONTRACTS OF SURETYSHIP. 
 
 /. Guaranties. | H- Implied Indemnity 
 
 Actions hij Principal Creditor 
 
 against the Surety. 
 Actions hy the Surety ayainst the 
 
 Principal Debtor. 
 Actions by the Surety against his 
 
 Co-surety. 
 
 III. Policies of Insurance. 
 
 1. Life Insurance. 
 
 2. Fire Insurance. 
 
 3. Maritime Insur-ance. 
 
 IV. General Average. 
 
 The liabilities discussed in the previous chapters Avere all 
 of a direct uature, arising from the immediate dealings of the 
 parties with each other. In the present chapter I shall 
 examine a number of collateral liabilities, which spring from 
 a contract by one person to guard the other against the acts 
 or default of some other party or agent. Under this branch ot 
 the subject fall the four well-known heads of Life, Fire, and 
 Marine Insurance, and General Average, as also the ordinary 
 cases of guaranty and indemnity. It will be more convenient 
 to take the latter first, as embodying the general principles by 
 which the former are regulated. 
 
 I. A contract of guaranty or indemnity involves the rights 
 of three persons, — the principal creditor, the principal debtor, 
 and the surety. The action may be by the principal creditor 
 against his immediate debtor, which of course is no way 
 affected by the fact of the guaranty ; or by the same party 
 against the surety ; or by the surety against the principal 
 debtor, or against the co-sureties, if he is fortunate enough to 
 have any. 
 In actions 1. Actions by the principal creditor against the surety. 
 
 Damages m this action are of course the amount of the debt
 
 ACTIONS ON CONTRACTS OF INDEMNITY. 317 
 
 owing to the plaintiff, or of the loss incurred by him, to the 
 extent to -which the defendant has consented to be answerable 
 for it ; and where the debt bears interest, as a bill, the surety 
 will be liable for the interest also (a). 
 
 Tlie plaintifl" inust prove strictly the amount to which he plaintiff must- 
 has been injured. Where the plaintiff was surety for a col- P^^^ a loss 
 lector of taxes, with an indemnity, and sued the party indem- 
 j\ifying him, assigning as a breach that the collector had 
 received money which he had not paid over, in consequence 
 of which plaintiff had been forced to pay it, the defendant ad- 
 mitted the receipt of the money by the collector, but not its 
 amount ; it was held that the plaintiff could only recover 
 nominal damages, unless he could show what sums had actually 
 been received by the collector, and that judgment signed against 
 him for 500Z. at the suit of the Eeceiver-General, was no evi- 
 dence of the amount of this damage, as the defendant was not 
 a party to it, and it might have been obtained by collusion (b). 
 So where the defendant had covenanted that the debts of a cer- 
 tain firm, into which the plaintiff was about to be admitted as 
 a partner, did not exceed a specified sum, and that if they did, 
 the defendant would pay on demand of the plaintiff the amount 
 by which they exceeded that sum, this was held not to be a 
 covenant for liquidated damages, but a contract to indemnify 
 the plaintiff fi'om any loss he might suffer from an erroneous 
 statement of the debts, and that it was for the jury to consider 
 to what extent his position had been altered by reason of the 
 defendant's breach of covenant (c). 
 
 The plaintiff must prove not only the amount of his loss, arising from a 
 but also that it arose from the cause against which the surety against!^*^'*^' 
 agreed to protect him. The plaintiff and S. entered into a 
 contract that S. should perform certain works at a fixed sum, 
 receiving from time to time payment for three-fourths of the 
 v/ork done ; the remaining one-fourth to be paid a month after 
 the completion of the whole ; if S. should fail to complete the 
 
 (a) Ackerinann y. Ehrensberrjer, 16 M. & W. 99. 
 
 (6) King v. Norman, 4 C. B. 884 : Ex parte Young, 17 Ch. D. 668 ; 50 
 L. J. Ch. 824. In Greville v. Gunn, 4 Ir. C. L. Rep. 201, sureties for a land 
 agent undertaking that he should duly account to his principal, were held 
 liable for the taxed costs of a cause petition to compel him to do so. 
 
 (f ) Walker V. Broadhurst, 8 Ex. 889 : Ex parte Broadhurst, 2 De G. Mac. 
 & G. 953.
 
 318 ACTIONS ON CONTRACTS OF INDEMNITY. 
 
 works, tlie plaintiff was to employ others, and deduct the ex- 
 pense from the sum payable to him. Defendant was surety 
 for the performance of this contract by S. S. abandoned the 
 contract when partly performed. The plaintiff at the request 
 of S. had advanced him a sum which exceeded the whole cost 
 of the works then accomplished, but was less than the whole 
 contract price. Plaintiff then had the works completed, at a 
 cost which, added to the price of the work actually done, was 
 less than the contract price ; but added to the money which he 
 had advanced was more than that sum. He sued defendant 
 on his guaranty, and it was held that he was only entitled to 
 nominal damages, as the loss had arisen from his own act in 
 advancing more money than he ought to have done, not from 
 the refusal of S. to go on with the works {d). It was also held 
 in the same case, that this defence was properly set up in 
 mitigation of damages, under no?i est faction, and could not 
 have been pleaded ; defendant could not have pleaded perform- 
 ance, because the contract was broken ; nor that the obligee 
 was damnified by his own wrong, because this was not a damni- 
 fication of that sort, but one not arising on the contract at all. 
 In case of Where a debtor, whose whole debt is covered by a guaranty, 
 
 bankruptcy, becomcs bankrupt, and a dividend is received, the creditor can 
 
 aivideud must J^ ' ' 
 
 be apportioned of coui'se Only recover the balance from the surety. Where, 
 tu whole debt, i;jowever, only a portion of the debt is so secured, the creditor 
 
 It part only is . . 
 
 guaranteed. Cannot apply the dividend to the unsecured portion, and re- 
 cover the whole of the residue from the surety. The latter has 
 a right to have the dividend applied rateably to the whole 
 debt, and a proportionate deduction made from the amount 
 for which he is liable. And so, if the difference between his 
 liability and the entire debt is covered by the guaranty of 
 another person, each surety may claim a rateable deduction, out 
 of each pound of the amount of debt to which their respective 
 guaranties extend. The plaintiff cannot apply the whole of the 
 dividends to either part of the demand at his own election, and 
 thus vary, at his own pleasure, the extent of the responsibility 
 of the two sureties (e). 
 
 ((/) W<n-re v. Calvert, 7 A. & E. 143 : and see Tanner v. Wuolmer, 8 Ex. 
 482. 
 
 (f ) Bardicell v. Lydall, 7 Bing. 489 : Raikes v. Todd, 8 A. & E. 846 : Gee 
 V. Pack, 33 L. J. Q. B. 49 : Thornton v. McKavan, 1 H. &, M. 525 ; 32 L.
 
 ACTIONS ON CONTRACTS OF INDEMNITY. 319 
 
 In all these cases the Court construed the contract by the 
 •surety as being a guaranty of a limited portion of the debt, in 
 which case the surety who pays that portion has, in respect of 
 it, all the rights of the creditor, including the right to a divi- 
 dend (/). A different case, however, arises where the surety otherwise 
 undertakes to be liable for the whole of the debt, subiect to a V?^'^. "^^"'^ 
 limitation that he is not to be called upon to pay more than a teed, though 
 specified amount. In such a case the creditor is entitled to I'^^l^^'^.y of 
 redeem the whole debt by any dividends he can obtain, and then limited. 
 to call upon the surety to pay the balance, to an amount not 
 •exceeding the sum for whicli he has become bound. This was 
 laid down in the case of Fl/is v. Emmanuel (g), Avhere all the 
 preceding decisions were examined. In that case one Etheredge 
 owed the plaintiff a debt of 7,000?., and several persons, of 
 whom the defendant was one, made themselves jointly and 
 severally liable to the plaintiff for the payment of the said 
 debt, with a limitation as regards the defendant that he was 
 not to be liable (whether by reason of a joint or of a several 
 action or demand) for a sum or sums exceeding altogether in 
 debt or damages l,oi)Ol. Similar provisoes limited the liabihties 
 of other sureties to sums of 7<)0/. and 400/. respectively, all 
 these sums making up exactly 7,000/. Etheredge paid 1,000/., 
 and then became bankrupt. Under his bankruptcy the plain- 
 tiff's received 95. '2d. in the pound, amounting to 2,759/., and 
 one of the sureties paid 405/. and interest. There remained 
 due 3,000/. The plaintiff claimed from the defendant 1,300/. 
 towards this balance. The defendant maintained a right to 
 deduct from his 1,300/. the 405/. paid by the surety, and also 
 a dividend of 9s. 2(1 on 1,300/. The Court of Appeal, affirm- 
 ing the decision of the original Court, held that he was liable 
 for the whole 1,300/., but that if this payment exceeded his due 
 proportion of the amount left unpaid out of the 7,000/., he 
 would have a right to contribution to that extent from the other 
 sureties, on the ground that they were all liable for the same 
 debt. On the other hand each surety might have limited his 
 guaranty to 1,300/., 700/., 400/., &c., parcel of the 7,000/. In 
 
 J. Ch. 69 : Hohson v. Bass, L. R. 6 Ch. 792 : Gray v. Scckham, L. R. 7 Ch. 
 680; 42 L. J. Ch. 127. 
 
 ( /') See per Lord Hatherley, Hohson v. Bass, L. E. 6 Ch. at p. 794. 
 
 [U) 1 Ex. D. 157 ; 46 L. J. Ex. 25.
 
 320 ACTIONS ON CONTRACTS OF INDEMNITY. 
 
 guch a case the creditor would be bound to apply all payments- 
 by the principal debtor rateably in discharge of the several 
 portions of the del)t guaranteed by each surety, and there could 
 be no contribution between the sureties, because they were not 
 liable for the same debt. Blackburn, J., after examining all 
 the cases on the subject, said : " In every one of them the 
 limited sm'etyship was to secure a floating balance. And I 
 think these decisions establish that in such a case the surety- 
 ship is, 2^rima facie at least, to be construed as a security for a 
 part only of the debt. And I agree with what is intimated by 
 Lord Hatherley in Holson v. Bass (Ji), that if a creditor, taking 
 a limited security for a floating balance, means it to be a 
 security for the whole of the debt, and not merely for a part, 
 he should take care that this is clearly expressed, for the prima 
 facie construction is the other way. But there is no case that 
 I am aware of which lays down that Avhere the suretyship limited 
 in amount is for a debt already ascertained which exceeds that 
 limit, it is prima facie to be considered as a security for part of 
 the debt only ; and I have failed to see any principle on which 
 such a primd facie construction ought to be adopted. I think 
 in such a case it is a question of construction on which the 
 Court is to say whether the intention was to guarantee the 
 whole debt, with a limitation on the liability of the surety, or 
 to guarantee a part of the debt only " (/). 
 Riglitof surety Upon a different principle from that Avhich is stated in these 
 to equitable cases, a surety is entitled in equity to plead by way of set-off a 
 debt due from the creditor to the principal debtor, arising out' 
 of the same transaction out of which the liability of the surety 
 arose. In such a case "Willes, J., said, "A surety has a right,. 
 as against the creditor, when he has paid the debt, to have for 
 reimbursement the benefit of all securities which the creditor 
 holds against the principal. This alone would not help the 
 defendant here, because he has not, nor has the principal , 
 actually paid the creditor, and in our law set-off is not regarded 
 as an extinction of the debt between the parties. The surety, 
 however, has another right, viz., that as soon as his obligation 
 to pay has become absolute, he has a right in equity to be ex- 
 onerated by his principal. Thus we have a creditor who is 
 
 (/() L. R. C Ch. at p. 794. {{) I Ex. D. at p. 168.
 
 BY THE CREDITOR AGAINST THE SURETY. 
 
 321 
 
 equally liable to the principal as the principal to him, and a 
 surety who is entitled in equity to call upon the principal to 
 exonerate him. In this state of things we are bound to con- 
 clude that the surety has a defence in equity against the . 
 creditor" {Ic). 
 
 Some distinctions must be observed as to the time at which Damages when 
 
 a loss occurs, so as to entitle a plaintiff to sue and obtain Promise to do 
 ■ ^^ '- n. tlimg IS 
 
 substantial damages. Where the defendant's promise is an absolute. 
 
 absolute one to do a particular thing, as to discharge or acquit 
 
 the plaintiff from such a bond, an action may be brought the 
 
 moment he has failed to perform his contract, and a plea of 
 
 no7i damnificaius would be bad {I). Therefore where a party 
 
 entered into a covenant to pay off incumbrances on an estate 
 
 by a particular day (m), or to take up a note {n), it was held 
 
 that an action might be brought, and damages to the extent of 
 
 the incumbrances and note respectively might be obtained, 
 
 though no actual injury had been sustained {o). 
 
 Where the covenant is to indemnify or save harmless, no When promise 
 
 is to indem- 
 ■ nify. 
 
 {I) Bechervaise v. Lewis, L. R. 7 C. P. 372, at p. 377 ; 41 L. J. G. P. 
 161. 
 
 (l) 1 "Wms. Saurd. 117, a, n. 1 ; 1 Wms. Notes to Saimd. 134. 
 
 (m) Lethhridge v. Mytton, 2 B. & Ad. 772 : Redfield v. Haight, 27 Con- 
 necticut, 31. 
 
 («) Loosemore v. Radford, 9 JI. & W. 657. 
 
 (o) So where the defendant's promise was to be answerable for all the costs, 
 damages, and expenses, which the plaintiff might sustain by reason of his 
 trying an action against a third ijerson commenced at the defendant's request, 
 it was held that costs for which tlie plaintiff was liable to his attorney might 
 be recovered, although unpaid, the Court treating the promise as an engage- 
 ment to find the money, and not merely to indemnify — not merely to repay, 
 but to take care that the plaintiff should not be called on to pay : Sparh v. 
 Heslop, 1 E. & E. 563 ; 28 L, J. Q. B. 197 ; distinguished on this ground 
 from Collinge v. Heywood, post, p. 322. In a recent case the plaintiff, 
 devisee of an estate, conveyed it to the defendant, subject to payment of a 
 legacy of 200Z. to A. B., on attaining twenty-one, or to his personal represen- 
 tative, on his death under age, the defendant covenanting to pay the legacy 
 accordingly, and to indemnify the plaintiff against all liability consequent on 
 non-payment. A. B. died under age, and his administrator filed a bill against 
 the plaintiff to enforce payment, bat the plaintiff being advised that on the 
 true construction of the will, the legacy, on the death of A. B. , ceased to be a 
 charge on the estate, resisted the claim, and the bill was dismissed. The 
 plaintiff then claimed the 200?. from the defendant, and sued him for breach 
 of covenant, and was held entitled to recover the whole 200?. : Hodgson v. 
 Wood, 2 H. & C. 649 ; 33 L. J. Ex. 76. A case of substantial damages re- 
 covered for breach of a covenant to do all things necessary to corroborate a 
 deed of appointment, or at the expiration of six months to pay the full value 
 of the interest intended to be vested in the covenantee by the deed of aj^point- 
 ment, without any proof of actual damage, will be found in tromiuclin v. 
 Donegall, 3 Ir. C. L. 434. 
 
 M.D. Y
 
 322 
 
 ACTIONS ON CONTRACTS OF INDEMNITY. 
 
 "WTiat amounts 
 to a loss. 
 
 Liability to 
 suit. 
 
 action can be brought till some loss has arisen ; so it is also 
 where the covenant is to acquit from damage by reason of a 
 bond or some particular thing ; and in either case the proper 
 plea is non damnificatus (p). The question then will be, what 
 was the loss against which the plaintiff was to be secured ? 
 
 When the plaintiff at the request of the defendant prosecuted 
 an action of replevin, on receiving an undertaking to indem- 
 nify him from the said distress, actions, costs, damages, and 
 expenses, which are now, or may be hereafter, commenced or 
 otherwise incurred by reason of the claim of the distraining 
 party, he incurred costs in the replevin suit, and his oivn 
 aitoriwj delivered him a bill on account of them ; it was held 
 that he was not damnified till he had paid the bill, though it 
 would have been otherwise, if the agreement had been, in terms, 
 to indemnify when the bill should be delivered {q). Here it is 
 plain that the mere delivery of a bill by a man's own attorney, 
 which he might not be bound to pay at all, or not to its full 
 extent, was no injury to the plaintiff. 
 
 And where the contract was to indemnify and save harmless 
 the plaintiffs against all sums of money, costs, and expenses, 
 which they should pay and incur by reason of becoming bail 
 for the defendant, it was held that the bond would not be for- 
 feited by the mere commencement of an action against the 
 plaintiffs upon their bail-bond ; but that if the defendant, after 
 notice, did not immediately take upon himself the defence of 
 the suit, but let them pay the expense of it as it went on, this 
 was a damniiication, and that the right of action arose when 
 any such payment was made (r). 
 
 It has been laid down in some old cases that liability to a 
 suit is a sufficient damnification, even before any suit has been 
 commenced ; as, for instance, where the defendant suffered a 
 prisoner to escape, after promising to save plaintiff harmless 
 against all escapes (s) ; and Lord Coke says, that terror of 
 suit, so as to be a hindrance to business, is a sufficient damni- 
 
 (j>) 1 Wms. Saund. 117, n. 1 ; 1 Vms. Notes tn Saund. 134, n. 1. 
 
 {q) CoUinge v. Heywood, 9 A. & E. 633, overruling Bullock v. Lloyd, 2 C. 
 & P. 119, and affirmed 3 Ex. 738 : compare Spark v. Heslop, ante, p. 321, 
 note (o). 
 
 (r) S'parkes v. Martindale, 8 East, 593. 
 
 (s) Barkly v. Kempstow, Cro. Eliz. 123.
 
 BY THE CREDITOR AGAINST THE SURETY. 323 
 
 fication (/), probably referring to the chance of an arrest on 
 mesne process. This, however, is clearly not law now, since Action 
 it has been decided that the actual existence of a suit which is ^^^"^ ^^°' 
 still pending is no damnification ; none as to the subject-matter 
 of the action, because the defendant may ultimately succeed ; 
 nor as to costs already incurred but not paid, because they are 
 incident to the substantive claim (u). 
 
 But judgment actually recovered against a party is always Judsment 
 a damnification to the full amount for which it is given, even I'^covered. 
 though payment has not been made under it. The defendant 
 had agreed to save harmless his co-trustee, the plaintiil', from 
 any claim which might arise out of the plaintiff's permitting 
 him to use a legacy of 10,000/., instead of investing it in the 
 way they were bound to do. A bill was filed against them by 
 the cestui que trust, the result of which was that plaintiff was 
 ordered to invest the 10,000/. An action was brought on the 
 indemnity, before the money had been invested : — Held that 
 the amount of damages was the amount to which the making 
 of the claim subjected the plaintiff, which was the sum to be 
 invested, and the actual loss which had been subsequently 
 added to that sum, in consequence of the claim having been 
 enforced by law(x'). The Court seemed to distinguish this 
 case from those cited above, on the ground that in them the 
 contract was to indemnify against a payment, whereas here it 
 was to indemnify against a claim. In a later case, however, 
 the same decision was given, where the indemnity did uot 
 contain the w^ord claim. The plaintiff, who was a lessee under 
 covenants, assigned to the defendant, taking an indemnity 
 against all "costs, damages, and expenses which he might 
 incur " from breach of those covenants by the assignee. The 
 assignee did commit breaches, for which plaintiff was sued by 
 his lessor, and judgment recovered against him by default, and 
 it was held that he might recover the amount of the damages 
 and the costs of the judgment by default, in an action on the 
 indemnity, though he had not paid them himself (y). The 
 
 (t) 5 Rep. 24. 
 
 (m) Taylor v. Younff, 8 Taunt. 3] 5 ; 3 B. & A. 521. 
 (x) Warwick v. RicharJson, 10 .M. & W. 284. 
 
 (y) Smith v. Howell, 6 Ex. 730. See al&o Harrap v. Armitagc, 12 Price, 
 441. 
 
 Y 2
 
 324 
 
 ACTIONS ON CONTRACTS OF INDEMNITY. 
 
 Carr v. 
 Roberts. 
 
 A general in- 
 demnity only 
 extends to the 
 lawful acts of 
 others. 
 
 true distinction tlien would appear to be, between cases where 
 the habihty is finally fixed on the plaintiff, in such a way that 
 it may be enforced at once, and cases in which there is only a 
 liability to be liable. 
 
 The same rule was laid down in another case, where, although 
 judgment had been obtained against the plaintiff, he had not 
 paid, and might never be called on to pay its amount. The 
 declaration set out an indenture, by which, after recital that 
 defendant had agreed to pay all debts of J. W., defendant 
 covenanted to protect and indemnify J. W., his heirs, &c., 
 from the payment of the said debts, and from all actions, claims, 
 and demands for any of them. The defendant omitted to pay 
 an annuity, which became forfeited after the death of J. W., 
 and judgment was had against the plaintiff, administratrix, for 
 20/. assets in hand, and residue quando acciderint. The Court 
 held that the plaintiff was entitled to recover the whole amount 
 of the judgment, since, at all events, the deed amounted to an 
 express covenant to pay the debts, within the decision of 
 Letlilridge v. Mytton {ante, p. 321). Patteson, J., however, 
 said that a suflRcient breach of the covenant to protect was 
 alleged, when the plaintiff stated that the defendant did not 
 protect the covenantees, and by reason thereof an action was 
 brought, and judgment recovered against the administratrix, 
 to the extent of aU the assets she had. That upon this ground 
 the plaintiff was entitled to the whole sum claimed ; the only 
 argument to the contrary being, that if she recovered it she 
 might not make a proper use of it. Parke, J., inclined to the 
 same opinion ; Littledale, J., dubitante (z). It may be ob- 
 served that in this case, Patteson, J., took a distinction between 
 a covenant to indemnify, and one to protect ; but the two pre- 
 vious decisions give the former word all the efficacy which he 
 ascribed to the latter. 
 
 There is a distinction as to the species of damage to which a 
 contract of indemnity extends. "When the agreement is a 
 general one to indemnify against all persons, this is but a 
 covenant to indemnify against lawful title ; and the reason is 
 because, as regards such actions as may arise from a rightful 
 
 [z) Carr v. Eoberts, 5 B. & Ad. 78 ; followed, Ashdown v. Inaannells, 5 Ex. 
 D. 280. J ^
 
 BY THE CREDITOR AGAINST THE SURETY. 
 
 !25 
 
 claim, a man may well be supposed to covenant against the 
 world {a). Therefore, if the obligee be sued unjustly, either 
 because he is sued before the money is due, or otherwise ; or 
 if the bond in which he is bound be against law and void, and 
 he suflFer himself to be unjustly vexed thereupon, it seems there 
 is no breach of the condition of the bond to save harmless (b). 
 So a covenant by assignee of a lease to indemnify against rent 
 due from the assignor to the lessor, is not broken by an illegal 
 distress made by the latter {c). And on the same principle, 
 where the plaintiff consented to become member of a provisional 
 committee, on receiving an indemnity " against aU personal 
 responsibility, and all costs, charges, and expenses which had 
 been, or might be incurred in and about the formation of the 
 company, their meetings, advertisements, surveys, and other 
 expenses of carrying out the company, applying for an Act of 
 Parliament, or anything relating thereto ; " and he was sued 
 unsuccessfully by the advertising agent ; it was held that the 
 extra costs incurred by the plaintiff in his defence could not be 
 recovered against the present defendant in an action on the 
 indemnity. The Court seemed to consider that costs of this 
 nature did not come within the terms of the indemnity at all. 
 Cresswell, J., said, " He has not been made personally liable to 
 any such thing. R. tried to impose such a liability upon him, 
 but failed." " I am of opinion that the covenant to indemnify 
 in this case must be construed in the ordinary way— to in- 
 demnify the plaintiff against all lawful claims " {d). 
 
 On the other hand, where a person covenants to save harm- Otherwise 
 less from all acts of a particular person, there he is bound to ^ijualTs^"^ ^' 
 indemnify against the acts of that person, whether by title or specified. 
 not ; for then the covenantor is presumed to know the person 
 against whose acts he is content to covenant, and may, there- 
 fore, be reasonably expected to stipulate against any disturljauce 
 by him, whether by lawful title or otherwise (e). 
 
 (a) Per Lord EllenborougL, Nash v. Palmer, 5 M. & S. 374. 
 
 (6) Shepp. Touch. 390. 
 
 (c) 1 Roll. Abr. 433, pi. 10 : Perry t. Edwards, 1 Stra. 400. 
 
 {d) Lewis v. Smitli, 9 C. B. (ilO. 
 
 (e) 2 Wms. Sauud. 178, n. (c) ; 2 "Wms. Notes to Saund. 526, n. (c) : 
 Nash V. Palmer, uhi sup. ; and so where the indemnity is against actions 
 brought in respect of any particular matter, as, for example, a distress for 
 rent, the covenantor may be liable though the action be groundless : Ibbett v. 
 De la Halle, ante, p. 100.
 
 326 
 
 ACTIONS ON CONTRACTS OF INDEMNITY. 
 
 Actions by 
 assignor 
 against 
 assignee. 
 
 Amount of 
 damages. 
 
 Where a lessee assigns his lease, it is optional with the 
 lessor, or assignee of the reversion, either to sue the lessee on 
 his original covenants, or to sue the assignee of the term on the 
 covenants as running with the land (/). In such a case it is 
 usual with the assignee of the term to covenant with the 
 assignor to perform all the covenants in the original lease, — 
 and to indemnify him against all suits brought by the lessor 
 or his assignee in consequence of their non-performance. 
 Where, however, the lessee nas assigned the term by deed- 
 poll, subject to the payment of the rent and performance of 
 the covenants in the original lease {g), or even by indenture 
 in the same words and without express covenants (A), the 
 assignee cannot be sued by the assignor in covenant {i). But 
 he may be sued in case or in assumpsit {Ic). The reason is, 
 that as the lessee is liable in the nature of a surety as between 
 himself and the assignee for the performance of the covenants 
 during the continuance of the interest of the assignee, a duty is 
 imposed upon the latter at common law to perform the cove- 
 nants during that time (?). It may be observed that the 
 language of Baron Parke just quoted, the arguments of Hol- 
 royd, J. (m), and the express opinion of Lord Denmau (n), go 
 to show that this action would be equally maintainable whether 
 the words " subject to the performance of the covenants, &c.,'* 
 were used or not. And it has now been formally decided by 
 the Court of Exchequer, adopting the opinion of Lord Denman, 
 that there is an implied promise on the part of each successive 
 assignee of a lease to indemnify the original lessee against 
 breaches of covenant committed by each assignee during the 
 continuance of his own term ; and such promise will be implied 
 though each assignee expressly covenants to indemnify his 
 immediate assignee against all subsequent breaches (o). 
 
 Damages in such a case would be measured by the loss 
 
 (/) 1 Sm. L. C. p. 63, and notes, p. 72, 9tli ed. 
 (,'/) Burnett v. Lynch, 5 1>. &; C. 589. 
 (/() Wolvcridfje v. Steward. 1 C. & M. 644. 
 (i) 5 B. & C. 602—609 ; 1 C. & M. 644. 
 {k) Ibid. Marzctti v. Williams, 1 B. & Ad. 424. 
 (0 Per Parke, B., 7 M. & W. 530. 
 (m) 5 B. & C. 606. 
 (n) 1 C. & M. 660. 
 
 (o) Moule V. Garrett, L. R. 5 Ex. 132 ; 39 L. J. Ex. 69 : affirmed L. E. 7 
 Ex. 101 ; 41 L. J. Ex. 62.
 
 BY THE CREDITOR AGAINST THE SURETY. 327 
 
 which the plaintiff had sustained. Where there is an express 
 indemnity against breach of covenants, he may recover the 
 costs of an action brought against him by his lessor, the 
 proper course, if he has no defence, being to let judgment go 
 by default, and have the damages proved on the writ of 
 inquiry (j;). The same rule would seem to hold good where 
 the action is brought upon the implied indemnity raised by 
 the law (q). 
 
 The landlord cannot, however, sue the under-lessee for any Actions by 
 breach of covenants contained in the original lease to his own g^^^-Tes^see!'^^* 
 tenant (r). Therefore, the original lessee cannot be regarded 
 as a surety for the performance by the under-lessee of cove- 
 nants by which he is not bound. Consequently, if the latter 
 enters into covenants precisely similar to those contained in 
 the original lease, these merely constitute an al)Solute promise 
 to do what he engages, and not a contract of indemnity against 
 any loss the lessee may suffer from their breach. And it makes 
 no diff'erence that tliere is no right of entry reserved by which 
 the lessee may ascertain whether the covenants have been 
 executed or not. Hence, if he is sued by his lessor for breach 
 of covenant, he can only, in action against the under-lessee, 
 recover in respect of his breach of covenant, and cannot obtain 
 the costs of defending the former action (s). 
 
 The sureties on a replevin bond are together only liable to ^^^^Yevin W, 
 the value of the goods seized, if less than the rent in arrear, or 
 the amount of rent, if they are worth more, together with the 
 costs of the replevin suit (not exceeding in all the amount of 
 the penalty), and the costs of the action against them (t). On 
 payment of this sum, and the cost of the application, the Court 
 will stay proceedings on the bond (u). They are not liable for 
 rent subsequently fallen due (;r). 
 
 Where the sureties for a sheriff's bailiff covenanted to Sureties for a 
 
 shenii s bailiff. 
 
 ip) Smith V. Hoioell, 6 Ex. 730. 
 
 (q) Held contra, however, in Ireland, but without discussion : Ho-pUns v. 
 Murray, 12 Ir. L. R. 359. 
 
 (r'> HolfordY. Hatch, Doug. 18-2. 
 
 (s)' Penley t. Watts, 7 M. & W. 601 ; Walker v. Eatton, 10 M. & W. 249 : 
 Logan v. Hall, i C. B. 598, overruling Neale v. Wyllie, 3 B. & C. 533 ; and 
 see ante, p. 98. 
 
 (i) Mefford v. Alger, 1 Taunt. 218 : Hunt v. Mound, 2 Dowl. 558. 
 
 (m) fliers v. Lockwood, 9 Dowl. 975. 
 
 (x) Ward v. Henley, 1 Y. & J. 285.
 
 328 ACTIONS ON CONTRACTS OF INDEMNITY. 
 
 indemnify the sheritf against the costs of defending any 
 action, and of prosecuting or opposing any motion in or 
 apph'catiou to the Court concerning any matter wherein the 
 bailiff should act, or assume to act, as baiUff to the said 
 sheriff, it was held that this covenant extended to actions 
 brought against the sheriff for acts done properly by the bailiff 
 in the discharge of his duty (y) ; and that he might recover 
 the costs of an action for a false return, which he had defended 
 as well as he could, though it had failed on account of the non- 
 production of evidence which was in his power to bring forward. 
 Also, that under the terms of the above covenant, the costs of 
 an application to postpone the trial against him until another 
 trial involving the matter in dispute had come on, might be 
 recovered (s). 
 Right to com- A party sued on a cause of action, against which he is 
 promise. indemnified, is not bound to resist if he has no defence. He 
 
 may make the best compromise he can, and then recover the 
 loss which he has iucurred. Trustees lent trust money to the 
 defendant, and took an indemnity fi-om him in case it should 
 turn out the loan was not justified. A bill was filed against 
 them to invest the money they had lent. They called on the 
 defendant to come in and resist the suit. On his refusal they 
 consented to a decision of the Court being at once taken as to 
 the propriety of their conduct in lending the money, without 
 carrying on the suit in the regular form. The decision was 
 against them, and they brought their action upon the indem- 
 nity. It was held that the plaintiffs' claim upon the indemnity 
 was unaffected by the summary method they had pursued, 
 since it did not appear that the decision could be in any degree 
 affected by the stage of the cause in which it was pronounced ; 
 or that the plaintiffs, by incurring the expense of prosecuting 
 the suit to the hearing, could have made any defence ; or have 
 diminished the damage consequent upon an adverse decision ; 
 or that the decree pronounced was less binding upon the 
 plaintiffs, or more prejudicial to the defendant, than it would 
 have been if made at the ordinary period of the suit (a). In 
 
 {y) Farebrotker v. Worsley, 1 C. & J. 549. 
 
 (2) Ibid, 5 C. & P. 102. 
 
 [ai Lord Newboroujh v. Schroder, 7 C. B. 342, 399.
 
 BY THE SURETY AGAINST THE DEBTOR. ^^^ 
 
 such a case, the onus of showing that the compromise was a 
 disadvantageous one lies upon the defendant, and it is not 
 necessary to give the surety notice of the first action. But if 
 notice is given to him, and he refuse to defend the action, in 
 consequence of which the person indemnified is obhged to yield 
 to the demand, that is equivalent to a judgment, and estops the 
 surety from saying that the defendant in the first action was 
 not bound to pay the debt(^). 
 
 2. Actions by the surety against the principal debtor. Action against 
 
 Damages in these actions are governed by exactly the same g^^ety'^ ^ 
 rules as those which we have been considering, since the prin- 
 cipal debtor is under an implied obligation to indemnify his 
 surety. The same distinctions also hold good as to the time 
 at which the action may be brought. This may differ, accord- 
 ing as the indemnity is an express or only an implied one- 
 "Where a surety takes a bond from his principal for the amount who lias taken 
 of the debt which he has guaranteed, he may sue upon it on ^ ^^^^"^1*^- 
 the day assigned in the bond, even though he has made no 
 payment as surety, and the time at which he could be called 
 upon as surety has not arrived (c). And in such a case he 
 must sue upon the bond, and cannot sue in assumpsit for 
 money paid after he has been forced to pay (d). But if the 
 bond were merely a bond of indemnity, he must prove actual 
 damage (e). 
 
 In the case, however, of a mere surety who has taken no By surety who 
 . . T 1 1 ,_ • <• J.1 • • 1 has no secunty. 
 
 security from his principal, no debt arises from the principal 
 
 till a payment has been made by the surety (/) ; even though 
 
 the surety has been called on for payment (g). But in equity, 
 
 as soon as he is under actual liability, he may demand to be 
 
 exonerated (A). 
 
 At law, the moment he has paid any part of the debt, he 
 
 may sue his principal, and as often as he makes a payment his 
 
 {b) Dvfficld V. Scott, 3 T. R. 374 : Jones v. Williams, 7 M. & W. 493 : 
 Smith V. Conipton, 3 B. & Ad. 407 : Farebrother v. Worsley, 5 C. k P. 102. 
 As to costs of the first action, see ante, p. 100. 
 
 (c) Toussaiiit v. Martinnant, 2 T. K. 100. 
 
 {d) Ibid. 
 
 (e) Penny v. Foy, 8 B. & G. 13. 
 
 (/) Taylor Y. Mills, Cowp. .5^5. 
 
 (y) Paul V. Jones, 1 T. R. 599. 
 
 [h] M>-bet V. Smith, 2 Bro. C. C. 579 : Lee t. BooTc, Mos. 31S : Coclc v. 
 Ravie, 6 Yes. 283.
 
 330 ACTIONS ON CONTEACTS OF INDEMNITY. 
 
 right to sue accrues (/)• But where a party who is surety 
 for another can only jDrotect himself from action at suit of a 
 third party by paying money at a particular day he may do so, 
 and before demand, and then sue his principal for the amount 
 to be paid {I). 
 "What amounts The form of action by surety against principal is assumpsit 
 to payment by f^j^. 2noney paid to his use. An important question then 
 
 1116 SUrCtV. , o ^ * *\ 
 
 arises, what may be considered as money tor this purpose r 
 Where the plaintiflF was securii-y for the defendant who became 
 insolvent, upon which the plaintifi" being called on for the 
 
 Giving a note, money gave his note of hand payable with interest, Lord 
 Kenyon held that the creditors having consented to take the 
 note from the plaintiflF, it was as payment to them of the 
 money due by the defendant ; it was payment of money to his 
 use, and the action was maintainable. And the Court, on 
 motion for a new trial, agreed witli this decision (/). The 
 American Courts hold the same rule in all cases in which the 
 note has been given and accepted by the creditor as fuU pay- 
 ment and in complete satisfaction (m). In England, however, 
 the point seems by no means settled. It has been twice 
 
 Boiid. decided that giving a bond does noc enable a party to maintain 
 
 an action for money paid, even when it has been accepted as 
 payment and satisfaction of the old debt (n). In the first case 
 Lord Ellenborough said, " There is no pretence for considering- 
 the giving this new security as so much money paid for the 
 defendant's use. Supposing even the case of a note or bill of 
 exchange, as the current representative of money, to have been 
 rightly decided, still this security, consisting of a bond and 
 warrant of attorney, is not the same as that, and is nothing 
 like money." In the latter case, Bayley, J., said, "The 
 plaintiflF in this case has paid no money. It is said, indeed, 
 that he has given what is equivalent to it, and that it ought to 
 be considered for this purpose as money, and so it was held 
 in Barclay v. Gooch. But in Taylor v. Hiygins, the Court, 
 having the former case before them, held that the action for 
 
 (i) Davies v. Humphreys, 6 M. & "W. 153, 
 
 {k) Brouyhton's Case, 5 Rep. 24. 
 
 {I) Barclay \. Gooch, 2 Esp. 571. 
 
 (m) Sedg. Dam. 323 ; 359, 4tli ed. ; vol. 2, p. 22, 7th ed. 
 
 (n) Taylor v. Hujrjins, 3 East, 169 : Maxwell v. Jameson, 2 B. & A, 51.
 
 iu execution. 
 
 BY THE SURETY AGAINST THE DEBTOR. 331 
 
 money paid could not be maintained. There are, therefore, at 
 all events conflicting authorities on this point, the last of 
 which is in favour of the defendant ; then, as the authorities 
 differ, it becomes necessary to look at the reason of the thing. 
 No money has yet come out of the plaintiff's pocket, and non 
 constat that any ever will ; for if he recovers from the defen- 
 dant in the present action, he may never pay it over to B." 
 On the other hand, Barclay v. Gooch was cited with approba- 
 tion by the Court of Exchequer in a later case {o), where they 
 seemed disposed to relax from the severity of former decisions ; 
 and it has since been discussed and upheld by the Court of 
 Exchequer in Ireland {p). 
 
 Where a party, liable for another, pays money to save his 
 goods from being taken in execution, this will of coarse sup- 
 port an action for money paid to the use of the other party {q). 
 But where the goods were actually taken and sold under a Goods taken 
 distress for rent, it was held that this action would not lie, 
 because, upon the sale the money vested in the landlord as an 
 instantaneous executed satisfaction of the rent, and never was 
 the money of the tenant at all (r). However in Rodgers v. 
 3faiu(s), where the goods of a surety had been taken in 
 execution for the debt of the principal, the Court of Ex- 
 chequer, without deciding the point, seemed strongly of 
 opinion that the amount for which they sold might be set 
 off as money paid. They pointed out that a writ of Ji. fa. 
 du'ects the sheriff to make " so much money " of the defen- 
 dant's goods, and said, " "We cannot see upon what principle a 
 man may not set off money paid by the produce of his goods, 
 as well as money paid indirectly ( t) without any sale of his 
 goods." They expressed a twofold doubt, as to the applica- 
 tion of Moore v. Pyrlce to the case under discussion, and as to 
 the principle of that decision, and postponed the case that the 
 defendant might put the question upon the record, with a view 
 to a writ of error, which, however, was not done. No final 
 decision was given. 
 
 (o) Rodgers v. Maw, 15 M. & W. 444, 449. 
 I'p) M'Kenna v. Harnett, 13 Ir. L. R. 206. 
 
 {q) Exall V. Partridge, 8 T. R. 308 : Edmunds v. Wallingford, 14 Q. B. 
 D. 811 ; 54 L. J. Q. B. 305. 
 
 (r) Moore v. Pyrke, 11 East, 52 ; and see Yates v. Eastwood, 6 Ex. 805. 
 
 (s) Ubi sup, 
 
 {t) Sic ; qy. directly ?
 
 332 
 
 ACTIONS ON CONTRACTS OF INDEMNITY. 
 
 Transfer of 
 stock. 
 
 Mortgage. 
 
 Interest. 
 
 It has also been held that a transfer of stock does not sup- 
 port a count for money paid («). 
 
 In America the Courts hold that the giving of a mortgage 
 is not payment, nor even taking possession of the estate for 
 the purpose of foreclosure, since the land is still only a security 
 for the money (x) ; but where the equity of redemption has 
 been released, and the conveyance of the land was received in 
 discharge of the debt due from the plaintiff, they hold that it 
 should be considered the same thing as if the plaintiff had 
 actually paid the money. The creditor received it as money, 
 or as an equivalent for money. To the principal debtor it was 
 immaterial whether the payment was made in one way or the 
 other (//). It has been decided in several states, that in such 
 a case the plaintiff must prove that the thing received, whether 
 a chattel or land, was of the full value of the debt, or agreed 
 to be received as such (2). 
 
 In an action on a covenant of indemnity by a surety, who 
 has been compelled to pay money for his principal, the jury 
 may give interest as damages. The damages ought to in- 
 demnify, and the surety has been damnified by losing the 
 interest of the money he has paid. Such a case diifers from 
 that of direct contracts to pay a sum of money, upon which 
 no interest is given at common law, because there the intention 
 of the parties is presumed to be expressed in the terms of the 
 contract. And the rate of interest which the principal himself 
 had allowed, in stating an account with the surety, was held to 
 be the proper basis of calculation (a). 
 Action by bail. In an action by bail against their principal the former may 
 recover all expenses incurred in rendering up the latter. In 
 a case of this sort Lord Ellenborough said, " The relation of 
 principal and bail is this, — the principal engages to indemnify 
 the bail from all expenses fairly arising from his situation as 
 bail. I think the indemnity goes against all charges which 
 are necessary to secure themselves. The bail have a right to 
 surrender the principal in their own discharge, and for their 
 
 (u) Nightinyal v. Devisme, 5 Burr. 2589 : Jones v. Brinley, 1 East, 1. 
 (a;) West v. Chamberlain, 8 Pick. 336. 
 \y) Ainslie v. Wilson, 7 Cow. 662. 
 
 (2) Bonney v. Stely, 2 Wend. 481 : Hoive v. Mackay, 5 Pick. 44. 
 (a) Petre v. Duncombe, 20 L. J. Q. B. 242 ; 2 L. M. & P. 107 ; and see 
 Hitchman v. Stewart, post, p. 334.
 
 BY SUFxETY AGAINST CO-SURETY. 333 
 
 own secnrity. If, therefore, the principal abscond, so that he 
 cannot be had, the bail may take every proper and necessary 
 step to secure him." "Where however the bail employed an 
 agent to find the principal, and then refused to pay him, and 
 was sued, it was held that he could not recover against his 
 principal the costs incurred in defending the action (b). But 
 no damages can be recovered by bail in respect of his trouble 
 or loss of time in taking a journey to become bail ; because 
 he does this, not as a person employed by the defendant, but as 
 a friend through motives of kindness (c). Where a defendant, 
 removing an indictment by certiorari, gives bail for his appear- 
 ance and for the payment of the costs, a contract on his part 
 will be implied to indemnify the bail against the prosecutor's 
 costs. An express or imphed contract to indemnify the bail 
 against the consequences of the defendant's not appearing 
 would probably be contrary to public policy, inasmuch as it 
 would be giving the public the security of only one person 
 instead of two (fl). 
 
 3. Action by surety against co-surety. 
 
 This action does not arise till it appears that one surety has When surety 
 paid more than his proportion of what the sureties can ever be ^f^euraml" 
 called upon to pay, and then it only lies for the surplus. Thus for what. 
 if the surety has paid less than his aliquot portion of the debt, 
 and the principal has then paid the residue, the right of action 
 against the co-surety will not run from the payment by the 
 surety, but from the payment by the principal, for until the 
 latter date it does not appear that the surety has paid more 
 than his share (e). 
 
 If the surety has obtained from the principal debtor a Surety must 
 counter-security for the lial^ility which he has undertaken, he fJ^^eJJX^*^ 
 is bound to bring into hotch-pot, for the benefit of his co- special 
 sureties, anything which lie may have received from that security. 
 source, even though he only consented to be a surety upon the 
 terms of having the security, and although his co-sureties were 
 
 (b) Fisher v. Fallows, 5 Esp. 171. 
 
 (r) Feason v. Wirdnam, 1 C. & P. 434. 
 
 (d) Jones V. Orchard, 16 G. B. 614 ; 24 L. J. C. P. 229. , , ^. t^ 
 
 (e) Davies v. Humphreys, 6 M. & W. 153, 169 : re Snowdon, 17 Ch. D. 
 44; 50 L. J. Ch. 540.
 
 834 
 
 ACTIONS OX CONTKACTS OF INDEMNITY. 
 
 Proportion 
 for which 
 each surety is 
 liable. 
 
 Interest. 
 
 Costs of suit. 
 
 VThen sureties 
 arc liound hy 
 different in- 
 struments. 
 
 ignorant of his being so protected, at tlie time they entered into 
 their own contract of suretyship (/). 
 
 The proportion which each surety was bound to pay as his 
 own share differed at law and in equity. At law it was calcu- 
 lated in reference to the original number of sureties, though 
 some of them had become insolvent (g), or had died since the 
 making of the contract (A). But in the latter case the Court 
 of Queen's Bench were strongly of opinion that the personal 
 representatives of the deceased surety would be liable for a 
 share. In equity, however, it was calculated according to the 
 number who were still solvent (i). 
 
 This variance betAveen the rules of common law and equity 
 ought nuw, under section 25 of the Judicature Act, 1873, to 
 cease and the rule of equity to prevail. 
 
 In equity, also, the surety was held entitled as against his 
 co-sureties to interest on what he had paid beyond his share (k). 
 
 Where the plaintiff and defendant had executed, as sureties, 
 a warrant of attorney, given as a security for the debt of their 
 principal, and on default by him, judgment was entered up on 
 the warrant of attorney, and execution issued for the amount 
 due, A\hich the plaintiff paid with costs, it was held that he 
 might recover the moiety of the costs of the execution (/). But 
 he cannot recover costs improperly incurred in defending an 
 action brought by the original creditor, and money paid by the 
 principal debtor cannot be applied in payment of such costs, 
 but must be taken in reduction of the debt itself (m). 
 
 The right to sue a co-surety for contribution exists equally 
 whether they are bound in one instrument or several, and 
 whether they knew of each other's engagements or not ; for 
 the payment by one is equally a benefit to the others (^0- 
 There is one important difference, however, viz., that sureties 
 bound by the same instrument must all contribute equally, 
 
 (/) Steel \. Dixon, 17 Cb. D. S25 ; 50 L. J. Ch. 591 
 Ch. D. 709. 
 
 (fj) Coicell T. Edwards, 2 B. & P. 268. 
 
 (h) Batard v. Haves, 2 E. & B. 287. 
 
 (i) Paer V. Rich, 1 Cha. Rep. 19. 
 
 (k) Ilitrhman v. Stewart, 3 Drew, 271 ; 24 L. J. Ch. 690 
 
 (I) Kemp V. Fiwlcn, 12 M. & W. 421. 
 
 (m) Knight v. Hughes, 3 C. & P. 467. 
 
 (»i) Deering v. Winchelsca, 2 B. & P. 270 
 Ves. 160. 
 
 re Arcedeckne, 24 
 
 Craythorne v. Sicinhurne, 14
 
 BY SURETY AGAINST CO-SUEETY. 335 
 
 whereas, if bound by dliferent instruments, the sums in each 
 ascertain the proportions of the principal debt they are to 
 pay (o). Bnt one surety who has induced another to enter into 
 an engagement of suretyship, has no claim against him for con- 
 tribution ip). And so, if by arrangement between themselves, 
 one of the joint contractors, though liable to the creditor, was 
 not to be ultimately liable to pay any portion of the debt, no 
 action could be maintained against him {q). 
 
 Where there are several under-lessees, at distinct rents, of Several under- 
 
 16SS6GS 
 
 separate portions of premises held under one original lease, at 
 an entire rent, and one pays the whole rent under a threat of 
 distress, he cannot have an action for contribution against the 
 other lessees. His only remedy is in equity (r). But it is 
 different where several have bound themselves for the rent of 
 an entire set of premises. Therefore where the plaintiff and 
 defendant, who were members of a committee, hired premises 
 from D. for the use of their company, and the plaintiff was 
 sued for the rent, he was allowed to recover contribution from 
 the defendant, though the latter had ceased to be a member of 
 the committee before the rent had accrued (s). 
 
 II. Implied indemnity. 
 
 In most of the cases just treated of, the contract of indem- Implied in- 
 nity was express. But the obhgation to indemnify arises, by '^'^"^'^^y- 
 imphcation at law, in many cases where there is no express 
 contract, and whenever it arises it operates iu the same 
 manner, and to the same extent as a special contract would 
 have done. For instance, whenever one man is compelled to 
 pay a debt for which another is legally responsible, the law 
 will imply a promise by the latter to indemnify the former, A 
 familiar illustration of this rule was the case of a tenant whose 
 goods have been distrained for rent due by his landlord (J). So 
 
 (o) 2 B. & P. 273. 
 
 (v) Turner v. Davie s, 2 Esp. 478. 
 
 (5) Per Lord Campbell, Batard v. Haives, 2 E. & E. 287 : Craythorne v. 
 Swinburne, 14 Yes. 160. 
 
 (r) Htinter t. Hunt, 1 C. B. 300. Nor is a landowner under any obligation 
 to indemnify the owner of a stack of wheat which, being lawfully on the land, 
 is seized by the Ecclesiastical Commissioners under 6 & 7 W. IV. c. 71, for a 
 tithe-rent charge on the land : Griffinhoofe v. Dauhiiz, 4 E. & B. 230 ; 24 L. 
 J. Q. B. 20 ; affirmed 5 E. & B. 746 ; 25 L. J. Q. B. 237, in Ex. Ch. 
 
 (a) Boulter v. Peplow, 9 C. B. 493. 
 
 (t) Exall V. Partridge, 8 T. R. 300. The case of Enriland v. Marsden, 
 L. R. 1 C. P. 529 ; 35 L. J. C. P. 259 ; is overruled by Edmunds v.
 
 33G IMPLIED INDEMNITY. 
 
 where two persons are privy to the same contract, he who takes 
 the whole benefit of the contract is bound to indemnify the 
 other against the performance of its obhgations. For instance, 
 the assignee of a lease is bound to indemnify the original lessee 
 against breaches of covenant in the lease committed during his 
 own holding (u) ; and so is a sub-lessee, who has undertaken 
 the covenants contained in the original lease (v). The pur- 
 chaser of shares is bound to indemnify the vendor against calls 
 made subsequent to the purchase (x). A mortgagor, who 
 induces a first mortgagee to postpone his claim in order to 
 enable him to obtain a fresh advance, is bound to indemnify 
 the mortgagee if the estate, in consequence of the postpone- 
 ment, proves to be an insufficient security for the money 
 originally lent (y). On the same principle, wherever a person 
 has been induced to do any act at the request of another, which 
 he does not at the time know to be an unlawful act (z), or to 
 become the agent of another (a), or to accept the office of 
 trustee for another (h), the person on whose behalf he acts is 
 bound to indemnify him against all consequences which accrue 
 from the proper performance of the act which he has done, or 
 the due discharge of the office which he has undertaken. 
 Acting as agent This is the ground of those cases which we have already 
 without autho- noticed (c), where a person who professes to act as agent for 
 
 Wallmgford, 14 Q. B. D. 811 ; 54 L. J. Q. B. 305 : Johvson v. Sl-afte, L. 
 R. 4 Q. B. 700 ; 38 L. J. Q. B. 31S, was decided upon tl:e special wording 
 of the Bankruijtcy Act, 1861. 
 
 (m) Moule V. Garrett, L. R. 7 Ex. 101 ; 4] L. J. Ex. 62. 
 
 [v) Hornby v. Cakbvell, 8 Q. B. D. 329 ; 51 L. J. Q. B. 89. 
 
 (x) Bou-ring v. Shepherd, L. R. 6 Q. B. 309 ; 40 L. J. Q. B. 129 : Kellock 
 V. Bnthoven, L. R. 9 Q. B. 241 ; 43 L. J. Q. B. 90. 
 
 (v) Exjiarte Ford, 16 Q. B. D. 305 ; 55 L. J. Q. B. 406. 
 
 [z) Duridcde V. Lovcring, L. R. 10 C. P. 196 ; 44 L. J. C. P. 197 : Cald- 
 heck V. Boon, 7 Jr. Rep. C. L. 32. 
 
 («) Frixione v. TagUaferro, 10 Moo. P. C. 175 : Read v. Anderson, 13 
 Q. B. D. 779 ; 53 L. J. Q. B. 532 : Seymour v. Bridge, 14 Q. B. D. 460 ; 
 54 L. J. Q. B. 347. A principal who employs a stockbroker is bound to 
 indemnify him against the result of such acts done in the course of carrying 
 out the business entrusted to him, as he is required to do by the rules of the 
 Stock Exchange, whether such rules are known to the principal or unknown 
 to him, x^rovided, in the latter case, the rules are neither unreasonable nor 
 such as violate a statute : Perry v. Barnett, 15 Q. B. D. 3S8 ; 54 L. J. Q. 
 B. 446 : Loring v. Davis, 32 Ch. D. 625 ; 55 L. J. Ch. 725. See as to 
 payments made by a betting agent, Gaming Act, 1892 (55 & 56 Vict. c. 9). 
 
 {b) JervisY. Wolferstan, L. R. 18 Eq. 18 ; 43 L. J. Ch. 809. See as to 
 the right of an executor to be indemnified out of the estate : Do%vse v. Gor- 
 ton, [1891] A. C. 190 ; 60 L. J. Ch. 745. 
 
 (c) Ante, p. 94.
 
 FALSE REPRESENTATION OF AGENCY. 337 
 
 another, has been held Hahle for all the loss which a third 
 party has incurred, in consequence of acting on his supposed 
 authority. The representation of an agency amounts to a 
 warranty of its existence, and carries with it an implied under- 
 taking to indemnify any one who acts upon the assumption 
 that such an authority exists, against all the loss which naturally 
 arises from the absence of such authority. 
 
 Thus in RandeJl v. Trimen (d), a stone merchant who had 
 supplied stone for the building of a church by direction of the 
 architect, who professed to act on behalf of the church building 
 committee, but had in fact no authority to do so, recovered 
 from the architect not only the price of the stone, but also the 
 costs of an unsuccessful action for the price which he had 
 brought against a member of the committee. In this case the 
 architect persisted to the end in his assertion of authority. 
 
 In CoJIen v. Wright (e), which is the leading case upon the CoJIni v. 
 subject, a land agent believing that he had proper autliority, ^' ''"•^''■^■ 
 assumed to let a farm to the plaintiff, upon terms which the 
 owner of the farm had not in fact authorised. The owner re- 
 fused to grant the lease. The plaintiff filed a bill for specific 
 performance, and finding from the answer that the agent's 
 authority was denied, gave him notice of the suit and ground 
 of defence, and that the suit would be proceeded with at his 
 expense, unless he gave notice not to proceed, in which case, as 
 in the event of the dismissal of the bill, he would be held re- 
 sponsible for the costs. The agent replied simply that the suit 
 had been commenced without his privity or sanction, and that 
 he should resist any attempt to saddle him with costs. The 
 bill was dismissed. It was held that the plaintiff was entitled 
 to recover from the agent's executors, besides money which he 
 had laid out on the farm, the expenses of the Chancery suit. 
 The defendant was considered to have persisted in his assertion 
 of authority, so that it became unnecessary to consider whether 
 he ought to have had notice before the commencement of the 
 suit. However this might be, the plaintiff was considered to 
 have acted reasonably in the matter. 
 
 (d) 18 C. B. 786 ; 25 L. J. C. P. 307. In this case the declaration 
 charged fraud, but the defendant was considered liable for the misi'epresenta- 
 tion, indeiaendently of fraud. 
 
 (e) 7 E. & B. 301 ; 26 L. J. Q. 13. 147 ; affirmed 8 E. & B. 647 ; 27 L. J. 
 Q. B. 215. 
 
 M.D. Z
 
 338 IMPLIED INDEMNITY. 
 
 mirjheiv. In a subsequent case the defendant, acting as broker for 
 
 (imme. -^^^^.j^ ^^^^^^ ^^^^ sellers, made a contract for the sale of wool to 
 
 the plaintifiT, on terms which the sellers afterwards repudiated, 
 alleging, as was the fact, that they had not authorised them. 
 The defendant persisted in his assertion of authority. There 
 was no wool of a similar character to be obtained in the 
 market, and the plaintiff filed a bill against the sellers to 
 enforce specific performance of the contract, and obtained 
 an interim injunction to restrain the sale of the wool. The 
 bill was dismissed, and the injunction dissolved with costs 
 on the ground of the defendant's want of authority. The 
 plaintiff was held to be entitled to recover from the defendant, 
 although he was his own agent as well as agent for the sellers, 
 damages for the loss of the bargain and the expenses of the 
 suit, that is to say, the taxed costs paid to the defendants in the 
 suit, and the plaintiff's own costs as taxed between solicitor and 
 client. It was objected that the plaintiff should have proceeded 
 by action at law instead of by proceedings in Chancery ; but 
 having regard to the peculiar character of the wool, the Court 
 putting themselves in the position of jurymen, pronounced the 
 plaintiff to have acted reasonably (/). 
 Spedding v. In a later case, the plaintiff" being in the occupation of a 
 
 NeveU. house and shop under a lease which would expire in 18G7, the 
 
 defendant, on behalf of his brother, the freeholder, whose rents 
 he had for some time received, agreed to grant the plaintiff, at 
 the expiration of the term, a renewed lease, the plaintiff under- 
 taking in the meantime to put in a new shop front. This the 
 plaintiff did, and in 18G5, without communication with the 
 defendant or his brother, sold all her interest in the premises to 
 one B. for 150/. The freeholder refused to grant the lease, and 
 the plaintiff in cou junction with B. filed a bill for specific 
 performance against him, which was dismissed, the defendant 
 being examined on behalf of his brother, and admitting that he 
 had entered into the agreement without consulting him and 
 without authority. B. was turned out of possession and 
 brought an action against the plaintiff, and recovered damages 
 for the loss of the lease, loss on rc-sale of fixtures, loss of 
 business, and other matters. The plaintiff then sued the 
 
 (/) Uvr/hcs V. GrcEmc, 33 L. J. Q. B. 335.
 
 FALSE REPRESENTATION OF AGENCY. 339 
 
 defendant, and claimed from him damages for the loss of the 
 lease, the expenses of the Chancery suit, the damages which 
 she had been compelled to pay B., and the costs of B.'s 
 action. She was held to be entitled to the value of the term as 
 enhanced by the expenditure contemplated by the agreement 
 itself, and to the costs of the Chancery suit, but not to the 
 damages or costs which she had sustained in consequence of 
 her re-sale to B. These last were clearly too remote. They 
 were not the natural consequence of the defendant's breach 
 of contract, nor had a re-sale been contemplated by the parties 
 at the time when the contract for the new lease was entered 
 into (g). 
 
 Still more recently, a case arose in which the plaintiff was Godwin v, 
 held entitled to recover a portion, but not the whole, of the 
 costs which he had incurred. The defendant and four other 
 joint owners of an estate had advertised it for sale, referring 
 persons who wished to treat to, amongst other persons, the 
 defendant. The latter representing that he had authority 
 from his co-owners to do so, contracted to sell it to the plaintiff 
 for 10,500/., and sent him an abstract of title. The other 
 owners declined to complete at that price. The defendant 
 wrote to the plaintiff that there had been a misunderstanding, 
 and that he had thought that he was authorised to sell subject 
 to the preparation of a proper contract, but that it now 
 appeared that other parties interested took a different view of 
 the matter. The estate was sold to some one else for 10,700/., 
 and the plaintiff brought an action against the defendant and 
 his co-owners for breach of contract. He administered inter- 
 rogatories and obtained answers on oath from all the joint 
 owners, that they had not authorised the defendant to sell, 
 though they had sanctioned the advertisement. The de- 
 fendant's answer was that he had had no express authority, 
 but had expected that his co-owners would concur in a sale for 
 10,500/. The plaintiff continued the action, contending that 
 the owners were bound by the advertisement, but was non- 
 suited. He then sued the defendant, and was held entitled to 
 recover, first, the expenses of investigating the title ; secondly. 
 
 (r/) Spedding v. Nevell, L. R. 4 C. P. 212 ; 38 L. J. C. P. 133 : Simons 
 Patchett, 7 E. & B. 568 ; 26 L. J. Q. B. 195. 
 
 z 2
 
 340 IMPLIED INDEMNITY. 
 
 as damages for the loss of his bargain, the difference between 
 the contract price and the market price of the estate, of which 
 market price, the price at which it was afterwards sold, was 
 prima facie evidence ; and it may be observed that, both in this 
 and the last case cited, the defendant was taken to be in the 
 same position with respect to this head of damage as the 
 vendors would have been if they had been bound by the contract 
 but had refused to carry it out ; thirdly, he was held entitled to 
 the costs of the unsuccessful action up to the time when the 
 answer to the interrogatories had been received and considered 
 by his legal advisers, after which, it became unreasonable for 
 him to proceed ; lastly, he Avas held not entitled to recover for 
 loss on re-sale of horses and cattle which he had bought for the 
 purpose of stocking the land without notice to the defendant 
 and before investigating the title. Stress was laid on the 
 equivocal nature of the letter written by the defendant, in 
 which there was no express disclaimer of authority to sell, as 
 showing that the plaintifl" acted reasonably in commencing 
 the action. But after receiving the answers to the interroga- 
 tories, he had proceeded, not in reliance on the defendant's 
 authority, but on a mistaken view of the law with respect to the 
 extent to which the owners had bound themselves by issuing the 
 advertisement, and the costs so incurred did not flow naturally 
 from the defendant's misrepresentation (A). 
 Jie National These cases were all approved and acted upon in the later 
 
 Coffee alace ^^^^ ^^ National Coffee Palace Co., Ex parte Pamnure (i). There 
 Ex parte Lawrence directed his brokers to buy him fifty shares in the 
 
 Pannmre. National Coffee Public Houses Company. They by mistake 
 bought shares in the National CoflPee Palace Company. L. re- 
 pudiated the shares, and when the comiDany went into liquida- 
 tion, his name was removed from the list of contributories. 
 The liquidator then sued the brokers, claiming 50Z., the 
 nominal value of the shares, as damages for their misrepresenta- 
 tion of authority. The Court found that the shares were un- 
 saleable in the market ao the time the allotment was made to 
 L., and that he was solvent. They said the question was, what 
 damages would the company have incurred if it was still 
 
 (A) Godivin V. Francis, L. R. 5 C. P. 295 : 39 L. J. C. P. 321. 
 (t) 24 Ch. D. 367 ; followed in 31eeJc v. Wendt, 21 Q. B. D. 126.
 
 FALSE REPRESENTATION OF AGENCY. 341 
 
 an existent company ? This would depend npon the solvency of 
 L., and upon the actual value of the shares. If L. had been 
 insolvent, the company would have lost nothing by not having 
 him as a purchaser. If the shares had a substantial market 
 value, this amount ought to be deducted from what the brokers 
 had contracted on his behalf to pay. As he was solvent, and 
 the shares were worth nothing, the company lost the full 50/., 
 since this was what he was supposed to have agreed to pay for 
 what was, to the company, of no more value than waste paper. 
 Therefore their claim was allowed in full. 
 
 The principle of all the above cases was, that a person to Pi-inciple on 
 whom another makes a representation, has a right to believe Tsse^sed'*^™^"^^ 
 that it is true, and to act upon it as true. Therelbre all loss 
 which accrues to him from the falsity of the representation is 
 properly chargeable against the person who has made it ( /'). 
 But when the damage would equally have accrued, whether the 
 representation were true or not, it is obviously not the con- 
 sequence, direct or indirect, of the false statement. Hence a 
 j)laiutiff was held not entitled to recover the costs of an action 
 where the defendant, believing that he had authority, verbally 
 agreed on behalf of the owners, to let a house to the plaintiff 
 for seven years, and gave him possession. The owners gave 
 him notice that the defendant had no authority to let to him, 
 and brought ejectment. The defendant advised him to resist, 
 and he did so, and had a verdict against him. It was held 
 that he could not recover the costs of the action from the 
 defendant, because even if the defendant had had the authority 
 which he professed to have, the i^laintiff" would have had no 
 defence to the ejectment, the agreement being verbal only, and 
 the plaintiflF having, therefore, only a tenancy at will (/r). And, 
 in another case, the plaintiff, being in treaty for the purchase 
 of the good-will of a business, was referred to B. for the par- 
 
 (j) See /jcr Lord Esher, M. R., Firbank^s Executors v. Humphreys, 18 Q. 
 B. D. at p. 60 ; 56 L. J. Q. B. 57. 
 
 (k) Foio V. Uavis, 1 B. & S. 220 ; 30 L. J. Q. B. 257. See, too, IPCollin 
 V. Gilpin, 5 Q. B. D. 390 ; 49 L. J. Q. B. 558, where the directors of a 
 public company had executed an agreement in a form which by the articles of 
 association did not bind the comijany. Compare Richardson v. Williamson, 
 L. R. 6 Q. B. 276 ; 40 L. J. Q. B. 145, where the form was sufficient, but 
 the purpose was one for which the directors had no power to bind the company. 
 Qucere, whether in this case also the public were not bound to take notice of 
 the invalidity of the agreement ?
 
 342 
 
 LIFE INSURANCE. 
 
 Life insurance. 
 
 Not a contract 
 of indemnity. 
 
 ticulars of the returns. He requested the defendant to make 
 the inquiry, and the defendant, as the jury found, falsely and 
 fraudulently represented to him that B. stated them to average 
 a certain amount. The plaintiff bought the business, and 
 finding the value to be less than had been represented, without 
 further inquiry sued the vendor for a false representation, but 
 failed, as it turned out that no such representation, had been 
 made either by B. or the vendor. The plaintiff thereupon 
 sued the defendant, and obtained a verdict for a sum which 
 included the costs of the unsuccessful action ; but the Court 
 made absolute a rule to reduce the damages by the amount of 
 the costs, being of opinion that the action against the vendor 
 was not the natural consequence of the representation made by 
 the defendant. Erie, C. J., said : " The plaintiff would have 
 a right, no doubt, to assume that the defendant told him the 
 truth ; but that would form no ground of action against Mrs. 
 CHfton (the vendor), unless she knew that the representation 
 so made was false. There is a marked distinction between a 
 false assertion by an agent, such as was made in this case, 
 and a false assertion by an agent that he has authority only 
 to make a contract." In the latter case it is a natural conse- 
 quence that an action should be brought, but not so in the 
 former {I). 
 
 III. Life, Fire, and Maritime Insurance. 
 
 The two former of these heads require little remark. A life 
 insurance is a simple contract to pay such a sum at the death 
 of the insured, and neither more nor less than this sum, with 
 interest, under 3 & 4 W. IV. c. 42, s. 29, can be recovered. 
 It was once decided in a remarkable case, arising out of the 
 debts of William Pitt, that a life insurance, when entered into 
 by a creditor of the party insured, was a contract of indemnity, 
 and that he could only recover upon it the amount of debt still 
 unpaid when the policy became due {m). This decision was for 
 a series of years rather acquiesced in than confirmed, while in 
 practice it was uniformly disregarded by the insurance offices, 
 who always paid the amount of the policy without asking any 
 questions as to the existence of the debt. The decision itself 
 
 {I) RicJiardson v. Dunn, 8 C. B. N. g. 655 ; 30 L. J. C. P. 44. 
 (ni) Godsall v. Boldero, 9 East, 72.
 
 FIRE INSURANCE. 343 
 
 was simultaneously overruled, at law and in equity (n)- It is 
 now settled that the stat. 14 Geo. III. c. 48, s. 3 (o), which 
 enacts, "that no greater sum shall be recovered from the 
 insurers {;:>) than the amount or value of the interest of the 
 insured in such life," refers to the interest possessed at the time 
 of making the policy. 
 
 Of course an insurance against injury to life or limb by Insurance 
 accidents is strictly a contract of indemnity. In case of JJ^^g^^ ^°'^'" 
 death, the amount is regulated by the sum insured. Where 
 the injury falls short of death, the damages are not to be 
 estimated by any proportion between the amount of injury 
 sustained by the accident, and the amount of loss by death. 
 The true measure is the amount of injury the plaintiff has 
 sustained, not exceeding the entire sum insured ; that is, the 
 expense, and pain, and loss, it may be of a limb, connected 
 with the immediate accident ; but not the remote consequences 
 that may follow, according to the pursuit or profession which 
 he may be following. Therefore, loss of time or profits cannot 
 be considered, otherwise one party, whose time was more valu- 
 able than that of another, would for precisely the same personal 
 injury receive a larger remuneration (q). 
 
 A fire insurance differs from a life insurance in being pro- Fire iusurance 
 perly a contract of indemnity ; the insurer engaging to make j^^^^^^^f ^^ 
 good, within certain limited amounts, the losses sustained by 
 the assured in their buildings and effects (r). Most lire policies 
 contain provisions by which the company is at liberty either 
 to pay the amount of the loss, or to supply the like quality or 
 quantity of goods with those burnt or damaged by fire, and 
 rebuild the premises themselves (s). 
 
 (w) Dalbyv. India and London Life Assurance Co., 24 L. J. C. P. 2 ; 15 
 C. B. 365 : Law v. Indisputable Assurance Co., I K. k John. 223 ; 24 L. J. 
 Ch. 196. 
 
 (o) Extended to Ireland by 29 & 30 Vict. c. 42. By 30 _& 31 Vict. c. 144, 
 assignees of policies who have given notice, may sue in their own names. 
 
 (p) That is, whether upon one policy or many : Hebdon v. West, 3 B. & S. 
 579 ; 32 L. J. Q. B. 85. In that case a promise by the person whose life was 
 insured, to employ the plaintiff for seven years at a certain salary, was con- 
 sidered to be a pecuniary interest in the life to the extent of as much of 
 the period of seven years as remained unexpired at the time when the policy 
 was eflfected. 
 
 {q) Theobald v. Railway Passengers' Assurance Co., 10 Ex. 45 ; 23 L. J. 
 Ex. 249. 
 
 (r) Per Lord Campbell, Dalby y. Irtdia and London Life Assurance Co., 
 15 C. B. 365 ; 24 L. J. C. P. 6. 
 
 («) See Forms in Park on Insurance ; Marshall, Insurance. When they
 
 344 FIRE INSURANCE. 
 
 Modcofvalu- There is a remarkable dearth of decisions^ in England on 
 i^ftter'^^^*^' *^^^ subject of damages in the case of fire insurance ; probably 
 on account of the liberality usually displayed by the com- 
 panies (t). The question Avas, however, very fully discussed in 
 an American case, in which some leading principles were laid 
 down, with that fulness which characterises the judgments 
 of the Transatlantic Courts. The plaintiff was lessee of a 
 term, which would expire on the 1st September. Upon the 
 land was a movable building. He had the option of either 
 renewing his lease, or taking away the building with him. 
 It was insured for IGO/. with the defendants. On the loth of 
 August it was burnt, the lessee having at that time given no 
 notice to renew the lease. The only question at the trial was 
 as to its value. Evidence was given that the building if suf- 
 fered to remain on the premises was worth 200/., but that if 
 taken away, it Avould only, as a separate chattel, be worth iOl. 
 The defendants contended, that as at the time of the fire no 
 notice to renew the lease had been given, it must be presumed 
 that the plaintiff did not intend to renew it, and therefore the 
 building should be valued at 40/., which was all it would bo 
 worth to him when taken away. The plaintiff, on the other 
 hand, claimed to recover the whole amount of the policy, on 
 two grounds. First, that the sum named must be taken to 
 be the ascertained value of the subject-matter of insurance. 
 Secondly, that the intrinsic value of the building as it stood 
 should be the standard of measurement, and not its value in 
 reference to his mode of dealing with it. The Judge ruled in 
 his favour on the latter ground; and this ruling was decided to 
 
 have once elected to re-instate they are bound to do so or to jiay damages for 
 not doing so, tliougli performance may have become impossible : Brown v. 
 Royal Insurance i'->oc., 1 E. & E. 853 ; 28 L. J. Q. B. 275 ; decided upon 
 demurrer, and cli.^sentiente, Erie, J. In this case the Commissioners of Sewers 
 Lad caused the structure insured to be taken down as being in a dangerous 
 condition. The Court expressly declined to state u^jon what principle the 
 damages were to be assessed. Morrcll v. Irving Fire Ins. Co., 33 N. Y., 429, 
 is also an authority that an election to rebuild converts the contract of insur- 
 ance into a building contract ; and that the damages in case of partial per- 
 formance will be the amount required to complete the building by making it 
 substantially like the one destroyed ; and that where two companies have 
 elected to rebuild, the entire damages may be recovered from one company, 
 leaving them to seek contribution from the other. 
 
 {t) There have been numerous decisions in North America which, with those 
 in Great Britain, will be found collected in Littleton and Blatchley's Digest of 
 Fire Insurance Decisions, 2nd ed., New York, 1868,
 
 FIKE INSURANCE. 345 
 
 be correct by the Supreme Court of New York (?<). The first Amount of 
 point made by the plaintiff was given against him, the Court agreed "valua- 
 bolding, on the analogy of marine insurance, and on the tion. 
 authority of two English cases (x), that " the recovery of the 
 assured must be regulated by the value of the property ; for if 
 the policy be a personal agreement to indemnify him against 
 loss or damage, his claim will be satisfied by the reimburse- 
 ment to him of the actual value of the property at the time, 
 which is the true amount of his loss by the peril : " and that 
 the amount named did not operate as an agreed valuation 
 of the subject-matter. " The undertaking is to pay the 
 amount of the actual loss or damage, but with the restriction 
 of the amount of the payment to the sum mentioned in the 
 policy." 
 
 On the second point their judgment was equally clear in Absolute value 
 his favour. " Bub it is said that the policy is a contract of f tl'e P'-operty 
 
 , to be taken, 
 
 indemnity, and that the principle of indemnity which pervades not its value t» 
 
 the insurance must control the construction of the policy ; ^^^ insured. 
 
 and upon this principle it is insisted, that the value of the 
 
 property to the assured at the time of the loss, circumstanced 
 
 as it may then be in reference to his use and enjoyment of it, 
 
 is the loss he sustains by the destruction of it, and is the 
 
 measure of his indemnity for the loss. It will be at once 
 
 seen that if this principle of indemnity is to be admitted, the 
 
 extent and value of the recovery will in every case vary with 
 
 the special and peculiar circumstances of the insured, and the 
 
 local advantages or disadvantages of the building, and the 
 
 uses to which it is applied ; and the intrinsic value of the 
 
 building will form no criterion of the loss of the proprietor 
 
 in case of its destruction. A building, for example, which 
 
 the necessities of the owner compel him to offer at public sale 
 
 for ready money, will be worth to him no more than what it 
 
 will produce at such a sale ; and a building for which there 
 
 happens to be a great competition, will command a much 
 
 larger price than its true vulue. Are these collateral and 
 
 incidental circumstances to enter into the estimate of ^-alue ? 
 
 Two houses of equal value may, from their local situation, be 
 
 (w) Laurent v. Chatham Fire Insurance Co., 1 Hall, 41. 
 (x) Lynch v. Dalzell, 4 13ro. P. 0. 431 : Sadlers" Co. v. Badcock, 2 Atk. 
 554.
 
 346 m^^' INSURANCE. 
 
 very unequal in the revenue they produce to their proprietors ; 
 would the loss of them, if destroyed by fire, entitle the pro- 
 prietors to different indemnities, in proportion to the rents or 
 the revenues of the tenants ? It is the tenement upon which 
 the insurance is made, and the actual valae of it, as a building, 
 is the loss of the insured in case of its destruction by fire. 
 To that measure of indemnity the proprietor is entitled, bow- 
 ever unproductive the property may be, and he is entitled to 
 no more, whatever revenue he may have derived from the 
 tenement." " It is of no importance whether the tenement 
 stands on freehold or leasehold ground, or whether the lease 
 is about expiring, or has the full time to run, when the fire 
 occurs, or whether it is renewable or not. The condition of 
 the policy is satisfied if the title and ownership are in the 
 insured at the time of the insurance, and at the time of the 
 loss. And the measure of his indemnity is the amount of his 
 interest in the tenements when destroyed by fire, notwith- 
 standing that the whole interest would have expired the very 
 next day, or soon after the loss occurred. But whether there 
 may not be incidents, or special circumstances so intimately 
 connected with the premises, or so permanently attached to 
 them, as to affect their intrinsic value, or the insurable interest 
 of the party in them, we are not prepared to say, and it is not 
 material to the decision of the question before us to enquire, 
 for this clearly is not such a case." 
 "Wlietlicr pro- There is little authority upon the question, whether the 
 perty destroyed j.]-jjj^o; insured should be estimated at its value when destroyed, 
 
 sliould be ^ 
 
 taken at its or at the amouut for which it might be replaced, in the case 
 value before ^f o-Qods, the two values would be in general synonymous. 
 
 destruction, ' ' . • , , n i i i 
 
 or at the llalt-woru furniture, for instance, might be replaced by secoucl- 
 
 aiiiount for hand articles of precisely similar value. Of course articles of 
 
 wliic-h it might ^ . "^ . ,., 11, 
 
 lie replaced ? i'crtu, sucli as antiques, statues, or pictures, which could not 
 be replaced at all, or only at an extravagant cost, would clearly 
 come under the former rule. The question would probably 
 arise in the case of houses. Suppose a house, from age or 
 dilapidation, to be only worth 700/. when burnt, but that it 
 could not be rebuilt at ah without an outlay of 1000/., and 
 that the policy was for the latter amount, would the larger or 
 only the lesser sum be recoverable ? I apprehend still the 
 lesser. It might, no doubt, be argued, that the value of the
 
 FIRE INSURANCE. 347 
 
 house was not to be taken at the amount for which it would 
 seh, but at the amount which the owner could make by 
 keej^ing it ; and this value could only be replaced by putting 
 him again in possession of a house of similar capacity, and 
 that the cost for which this could be done ought to be the 
 measure of his indemnity. The plain answer seems to be, 
 that the poUcy is a contract to insure against all loss caused 
 by fire, but not against any loss caused by time, weather, or 
 any other source of dilapidation. The eftect of the opposite 
 rule to that for which 1 contend, would be, in the event of fire, 
 to throw upon the insurer the charge of making good all want 
 of repairs by the owner, however culpable ; and all depreciation 
 by lapse of time, however necessary. The insured would step 
 out of an old house into a new one at the expense of the 
 insurer (y). 
 
 It was assumed all through the American case which I 
 have quoted, that the value should be taken at the time of 
 the destruction, on wd:iatever principles it was to be calculated. 
 But this cannot have much weight, as the policy expressly 
 provided that the loss was to be estimated, " according to the 
 true and actual value of the property at the time the fire shall 
 happen." 
 
 The analogy of marine insurance seems decisive upon this 
 point. There the well-known rule of deducting one-third new 
 for old, in valuing repairs (see post, Marine Insurance), is 
 based upon this principle. The same has been lately decided 
 in a kindred case, viz., that of a covenant to repair by a tenant. 
 It was held that when the house was burnt down, the tenant 
 was entitled to deduct from the full cost of rebuilding, the in- 
 creased value which the new premises would have, as compared 
 
 (y) The question arose in Ireland in an action on a policy of insurance on 
 the machinery in a mill, and Pennefather, B., ruling that the plaintiff was not 
 entitled to the full expense of replacing new machinery in the mill, said — 
 *'The loss is to be estimated by the expense the plaintiff would be at in re- 
 storing the premises to the state in which they were at the time of the fire. 
 But inasmuch as there may be a difficulty or an impossibility in restoring the 
 premises to the state in which they were, I think it would be a fair criterion 
 to see what would be the expense of placing new machinery, such as was in 
 the mill before, and to deduct from that expense the difference in value 
 between such new machinery and the old machinery which was destroyed. 
 I think £uch difference is the actual loss sustained by the plaintiff." Vance 
 V. Forster, Irish Circuit Reports, 47 (1841). vSee also /jer Channell, B., at 
 Nisi Prius, Times Fire Ass. Co. v. Ilcnvke, 28 L. J. Ex. 317 ; 1 F. & F. 
 406.
 
 348 
 
 FIRE INSURANCE. 
 
 Insurance liy 
 parties having 
 only a partial 
 interest. 
 
 Collateral loss. 
 
 Expenses of 
 saving pro- 
 perty from 
 fire. 
 
 with the old. The residue only could be recovered in an action 
 for breach of covenant (2). 
 
 Bailees, who have an interest in goods, such as wharfingers 
 and warehousemen, may insure them to their whole value. 
 AVhere the property is entirely destroyed, the whole of it must 
 be made good ; and not merely the particular interest of the 
 assured in it. They will be entitled to keep for their own in- 
 demnity as much as will cover their interest in the goods ; and 
 they will be trustees of the residue of the money for the absolute 
 owners {a). 
 
 Xo loss of a merely collateral nature can be recovered. 
 Therefore the landlord of an inn who had insured "his interest 
 in the said Ship Inn and offices," was not allowed to recover a 
 claim for rent paid by him to his landlord, for the hire of other 
 apartments while those damaged in the inn by fire were under- 
 going repair, or for the loss or damage sustained by him by 
 reason of various persons refusing to go to the Ship Inn whilst 
 the apartments so damaged were undergoing repair. The 
 Court said, as to the last item, that if a party would recover 
 such profits as these, he must insure them as profits (Jb). 
 
 It is not settled whether insurers in fire policies are liable for 
 expenses incurred to save the destruction of the thing insured. 
 Mr. Phillips is of opinion that equitably, and from analogy of 
 general average under a marine policy, the underwriters against 
 
 {z) Yates V. Bunster, 24 L. J. Ex. 226 ; 11 Ex. 15. 
 
 (a) Waters v. Monarch Assurance Co., 5 E. & B. 870 ; 25 L. J. Q. B. 
 102 : L. d; N. W. Ry. Co. v. Glyn, 1 E. .t E. 652 ; 28 L. J. Q. B. 188 : and 
 see N. British, <£v., Insurance Co. v. J/ofatt, L. R. 7 C. P. 25 : 41 L. J. 
 C. P. 1 ; and Martineau v. Kitchhig, L. R'. 7 Q. B. 436 ; 41 L. J. Q. B. 227. 
 See also as to the insurable interest of tenants from year to year, Simpson v. 
 Scottish Union Insurance Co., 1 H. & M. 618 ; 32 L. J. Ch. 329 ; jxr James, 
 L. J., Eayncr v. Preston, 18 Ch. D. at p. 15 ; 50 L. J. Ch. at p. 481 : per 
 Bowen, L. J., Castellain v. Preston, 11 Q. B. D. at p. 399 ; 52 L. J. Q. B. at 
 376 ; and compare Nihlo v. N. American Insurance Co., 1 Sandf., N. Y. 551. 
 There have been decisions in America that a mortgagee who has insured 
 buildings may recover though the mortgaged premises be still ample security 
 for the debt : Kernochan v. N. York Bowery Fire Insurance Co., 5 Duer. N. 
 Y. 1 ; affirmed 17 N. Y., 428 (1858) ; or though the mortgagor have rebuilt ; 
 Foster v. Equitable Mutual Fire Insurance Co., 68 Mass. 216 (1854). 
 Whether the insurers after payment are equitably entitled to an assignment 
 of the mortgage debt has been disputed : see Kernochan v. N. York Boiocry 
 Fire Insurance Co., suj)ra, and Angell on Insurance, s. 59. In England the 
 mortgagor usually insures in the joint names of himself and the mortgagee. 
 
 (6) In re Wright d- Pole, 1 A. & E. 621 : so Menzies v. North British 
 Insurance Co., 9 Cases in Court of Sess., 2nd ser. 694 : Niblov. N. American 
 Insurance Co., 1 Sandf. N. Y. 551.
 
 FIKE INSURANCE. 349 
 
 fire on land ought to be answerable for the expenses of 
 measures taken successfully to save the insured property, for 
 which, had it been lost, they would have been liable to make 
 indemnity (c). 
 
 As fire insurance is a contract of indemnity, if the owner of Double ia- 
 property insures it in different oifices, he cannot recover more durance. 
 than the single value from all together ; and any one office, 
 which pays more than its share, has a right of contribution 
 from tlie others. But where two people each insure the same 
 IDroperty in respect of diiferent rights, each is entitled to 
 recover the fall amount of his own interest, or the whole amount 
 due under his policy, if it is less than the value. And there is 
 no right of contribution between the offices. If one of the two 
 who insures has also a right of action against the other who has 
 insured, in respect of the loss which has occurred, the office 
 which has insured the person with the remedy over, succeeds to 
 his right of remedy over, and then it is a case of subrogation. 
 But in such a case the office which has insured the person 
 against whom the remedy exists, has no claim for contribution 
 against the office which has insured the person who has the 
 remedy. These principles were laid down in the following case, 
 where all the facts above suggested concurred. A wharfinger 
 held goods on behalf of their owner, and by the custom of trade 
 was absolutely liable to the owner for any loss that might arise, 
 including loss by fire. The owner, for his own further pro- 
 tection, insured the goods with X. The wharfinger insured 
 them with Z. ; they were lost by fire. Z. paid the amount of 
 the policy to the wharfinger, who paid it over to the owner. 
 A suit was then instituted between the two insurance offices to 
 determine their respective liabilities. It was decided, that the 
 fact that the owner was independently insured with X. was no 
 reason for exempting Z., or for making X. contribute for the 
 benefit of Z. But if the payment had been made by X. to the 
 owner, that office would have been entitled to all his remedies 
 against the wharfinger ; and, through the wharfinger, would 
 have been repaid by the office which insured him (d). In 
 other words, each office would, as regards ultimate liability, 
 
 (c) 1 Pliill. on Ins. 626, SrJ ed. 
 
 (d) North British and Merc. Insurance Co. v. London, Liverpool, and 
 Globe Insurance Co., 5 Ch. D. 569 ; 46 L. J. Ch. 537.
 
 350 
 
 MARINE INSURANCE. 
 
 Right of 
 insurance 
 company to 
 refund. 
 
 stand in exactly the same position as the party whom it had 
 insured. 
 
 In the case of Boijuard v. Arnold (e), a tenant was under a 
 covenant to keep the premises insured to their value, the 
 amount recoverable under the policy being applicable to the 
 reinstatement of the premises. He insured for 800/. with the 
 A. office in his own name and the landlord's. The landlord, 
 without his knowledge, insured the same premises for 51 5/. 
 with the G. office in his own name. Upon a total loss occurring, 
 the two offices apportioned the loss between themselves, and it 
 was held that they were justified in so doing. In this case, 
 however, both insurances were made on behalf of the landlord 
 and for his benefit, just as much as if the landlord had insured 
 himself in two different offices. 
 
 The principle that fire insurance is a contract of indemnity 
 which is worked out by a subrogation of rights, produces this 
 result, that an insurance company may be compelled to pay the 
 insurer the full value of a loss, which it may afterwards compel 
 him to refund, wholly or in part. For instance, it is no defence 
 to an action on a policy, that the owner of the house was under 
 contract to sell the premises to a perfectly solvent purchaser, 
 on whom the entire loss would have fallen if there had been no 
 insurance. Nor does it affect the amount payable under the 
 policy, that the premises were to be sold for the purpose of 
 being pulled down (/). But if the owner of the property 
 subsequently receives its value, from any person who is under 
 an obligation to pay him that value, either as being a wrong- 
 doer who had caused the injury, or a purchaser under previous 
 agreement, the company which has paid for the loss will be 
 entitled to such a refund as will prevent the owner being in a 
 better position than if no loss had occurred (//). If, however, 
 the money was received by the owner as a free gift, and not 
 
 (f) L. R. 9 Ch. 386. 
 
 (/) Collingridge Y. Eoyal ExcJianr/c Assurance Co., 3 Q. B. D. 173 ; 47 
 L. J. Q. B. 32. If the conveyance had been completed before the loss, the 
 insurer could have recovered nothing for want of an insurable interest, nor the 
 l)urchaser, as not being a party to the policy, unless it was assigned to him at 
 or before the sale : ibid., Raijner v. Preston, 18 Ch. D. 1 ; 50 L. J. Ch. 
 472. 
 
 (a) Barren v. Tihhits, 5 Q. B. D. 560 ; 50 L. J. Q. B. 33 : Casiellaiii v. 
 Presto7i, 11 Q. B. D. 380 ; 52 L. J. Q. B. 366.
 
 MARINE INSUKANCE. 
 
 351 
 
 under any right, no such obhgation to refund would arise (h). 
 Nor can the underwriters assert any claim for damages or 
 reimbursement, which could not have been maintained by the 
 assured, since they possess no higher rights than he does, and 
 are precluded by any defence which would be fatal as against 
 Mm (i). 
 
 In discussing the doctrine of damages in Marine Insurance, Marine in- 
 we cannot complain of a paucity of decisions. They are as 
 numerous under this head as they were scanty under the two 
 former. One fertile source of debate has arisen out of the right 
 of the insured, in some cases of partial loss, to abandon the 
 subject-matter of insurance to the insurer, and then claim as if 
 the loss had been complete at first. It will be necessary then 
 to examine ; first, when the loss is originally total ; secondly, 
 when it can be made so by abandonment ; thirdly, wlicn it is 
 always partial ; and fourthly, how the loss in either case is to 
 be valued. 
 
 1. Where the loss is total without aband(mment. Loss, total, 
 
 This takes place where the subject-matter of insurance is without aban- 
 
 ^ T . . donment. 
 
 utterly destroyed, or lost to the owners by detention, seizure, 
 barratry, and so forth (k). And where there has once been a 
 total loss, as where a vessel and cargo were barratrously taken 
 out of their course by the crew, it makes no difference that part 
 of the property subsequently comes into the hands of the owners, 
 by an act which was not done nor authorised by them. Sacii 
 property, however, is salvage for the benefit of the under- 
 writers (/). And it will be equally a total loss though the 
 thing exist in specie ; provided it has lost its character, and 
 has ceased to be of any use to the owners as the thing which 
 it originally was (m), though it possess some value in some; 
 inferior form (n). And though after the time of the disaster 
 it still retains, and is saleable under, its original denomination ; 
 still, if it is clear that the damage is so great that before the 
 completion of the voyage " the species itself would disappear, 
 
 (h) Bnrnand v. Rodoeanachi, 7 App. Cas. 333 ; 51 L. J. Q. B. 548. 
 
 (t) Simpson V. Thompson, 3 App. Cas. 279 : Midland Insurance Co. v. 
 Smith, 6 Q. B. D. 561 ; 50 L. -1. Q. B. 329. 
 
 (k) Mullett V. Shedden, 13 East, 304 : JMIish v. Andrews, lo Last, 1^. 
 
 {I) Dixon V. Reid, 5 B. & A. 597. 
 
 (m) Dijson v. Rowcroft, 3 B. & P. 474. 
 
 (n) Cambridge y. Anderton, 2 B. & G. 691 : Irviny v. Manning, 1 H. L. 
 C. 287.
 
 352 
 
 MARINE INSURANCE. 
 
 Constructive 
 total loss, 
 
 in tiie case of 
 the shii) ; 
 
 in the case of 
 the Ciirjio. 
 
 and the goods assume a new form, losing all their original 
 character," this is also a total loss. Because the risk does not 
 end till the termination of the voyage, and that which must 
 necessarily end in a total loss at the completion of the voyage, 
 must be treated as a total loss at the tune of the accident (o). 
 Though it is a total loss if the goods are in the hands of 
 strangers, not under the control of the assured (^j), the seizure 
 of the ship or goods by the lender on a bottomry bond ; or by 
 the Admiralty as a lien for salvage dues, is not such a seizure 
 as can cause a total loss ; as it arises out of the acts of the 
 owner himself, and not out of any of the perils insured 
 against (q). Whether the injury can be repaired or not will 
 depend on the circumstances of the place, as an accident may 
 be remedied in one port while it cannot possibly be in another. 
 In the latter case also the loss would be total (r). 
 
 2. Constructive total loss is where the thing exists in specie, 
 and there is a physical possibility of repairing or preserving it, 
 so as that it may reach the termination of the voyage in its 
 original character. But where this would have to be done at 
 such an extravagant cost, taking all the circumstances of the 
 case into consideration, that the subject-matter of insurance 
 would not be worth the money laid out upon it, this is a con- 
 structive total loss (s). The circumstances to be taken into 
 calculation in such a case, if it is the ship that is damaged, 
 will be the possibility and cost of repair in the particular place 
 where the injury has happened, and the means of procuring- 
 money (/). Where the loss has happened to goods, the question 
 is, " AYhether it was ' practicable ' (in the lousiness sense of the 
 
 (o) lioitx V. Salvador, 3 Bing. N. C. 266, 278. 
 
 i])) Ibid., 279. 
 
 (q) Rosettov. Gurney, 11 C. B. 176. 
 
 {?■) Moss V. Smith, 9 C. B. 102. 
 
 [s] Head V. Bonham, .3 B. & B. 147 : Parrij v. Aherdein, 9 B. & C. 411 : 
 Young v. Turin;/, 2 M. & Gr. 593 : Moss v. Smith, 9 C. B. 102. In the 
 ca&e of an exceptional shiij, for which there is no demand, the value to sell in 
 the market may be much less than the true value ; and it has been suggested 
 that in such a case a more proper criterion will be the price given for the ship 
 when new, with a deduction for wear and tear ; per Wood, V.-C. : African 
 Steam Ship Co. v. Sivanzij, 2 K. & J. 664 ; 25 L. J. Ch. 870 : Grainger v. 
 Martin. 2 B. & R. 456 ; 31 L. .7. Q. B. 186 ; 4 B. & S. 9, in Ex. Ch. 
 
 (t) Irving V. Manning, 1 H. L. 287 ; 2 C. B. 784 ; 1 C. B. 168. From 
 the estimated cost of raising a submerged ship must be deducted the general 
 average which would be contributed by the cargo : Kemp v. Ilallidny, L. R. 
 1 Q. B. 520 ; 6 B. & S. 757 ; 35 L. J. Q. B. 156, in Ex. Ch.
 
 MARINE INSURANCE. 353 
 
 word) (n), to send the whole or any part of the cargo to its 
 destination in a marketable state ? " To determine this ques- 
 tion, the jury must ascertain the cost of unshipping the cargo : 
 the cost of transhipping it into a new bottom (where neces- 
 sary) ; the cost of drying and warehousing it ; and the cost of 
 the difference of transit, if it can only be effected at a liigher 
 sum than the original rate of freight. Add to these items the 
 salvage allowed in proportion to the value of the cargo saved, — 
 and the loss will be total if the aggregate exceed the value of 
 the cargo, when delivered at the port of discharge. But if the 
 aggregate do not so exceed the value of the cargo, or of that 
 part of it saved, the loss will be partial only (x). 
 
 Where the insurance is on the cargo, a mere retardation or Delay of 
 interruption of the voyage, even if it amount to a loss of the ^oy'''se- 
 whole season, is not a ground for abandonment. To justify 
 this there must be an entire loss of the whole adventure, by 
 the destruction, absolute or constructive, of the cargo itself, in 
 consequence of the delay (y). And the utter destruction of the 
 vessel makes no difference, if another can be found before the 
 goods are destroyed by delay (2). 
 
 There is a loss of freight, either absolutely or constructively, What loss of 
 where the ship is either absolutely or constructively unable ^^'^isht is total, 
 to proceed on the voyage and earn it {a). But if, where the 
 ship has been injured to such an extent as would have jus- 
 tified the owners in abandoning, the master has not done so, 
 but has repaired, however imprudently, and in fact earned 
 freight, they cannot afterwards abandon on finding that the 
 
 [u) 9 c. B. 103. 
 
 {x) liosetto V. Gurney, 11 C. B. 176 : Re'imer v. Ringrose, 6 Ex. 263 : 
 Farnworth v. Hyde, L R. 2 0. P. 204 ; 36 L. J. C. P. 23, in Ex. Ch. Sale 
 of cargo ordered by a foreign tribunal, and not due to any peril insured 
 against cannot be treated as a constructive total loss : Meyer v. Ralli, 1 G. P. 
 D. 358 ; 45 L. J. C. P. 741. 
 
 {y) Anderson v. WaUis, 2 M. & S. 240 : Lozano v. Janson, 2 E. & E. 160 
 28 L. J. Q. B. 337. 
 
 {z) Hunt V. Royal Exchange Assurance Co., 5 M. & S. 47. 
 
 (a) Green v. Royal Exchange Assurance Co., 6 Taunt. 68 : Idle v. Royal 
 Exchange Assurance Co., 8 Taunt. 755 ; or where the cargo is so damaged as 
 to render it impossible, except at an expanse which would greatly exceed its 
 value on arrival, to can-y it to the port oi destination : Michael v. Gillespy, 2 
 0. B. N. S. 627 ; 26 L. J. C. P. 3U6. Or where the ship has been so delayed 
 by a peril insured against, that the charterers were not bound to load the 
 ship. Jackson v. Union Marine Insurance Co., L. R. 10 G. P. 125 ; 44 L. 
 J. G. P. 27. 
 
 II.D. A A
 
 354 MARINE INSUEANCE. 
 
 repairs cost more than the ship and freight were worth (b). 
 Nor is it any ground to claim as for a total loss of freight, 
 that the expense of repairing the ship would exceed the whole 
 amount of freight, if, taking the value of ship and freight both 
 into consideration, it was prudent to repair. For the contract 
 by the underwriter is, that the ship shall not be prevented 
 from earning freight. Xot that the freight shall be any profit, 
 when earned (c). And it makes no difference, that the cargo 
 was so injured by accident, tliat the delay and expense of 
 drying and re-shipping was greater than the freight was 
 worth (d), which comes under the same principle. Nor that 
 the owner, on hearing of an embargo on the ship, abandoned 
 to the underwriter on the ship, who consequently became en- 
 titled to the freight, which was actually earned on the removal 
 of the embargo ; because this loss arose from the voluntary 
 act of the insured, with which and its consequences the under- 
 writers on freight have no concern (e). 
 
 And so, in a later case, where a ship had sustained con- 
 siderable injuries at sea, and further injury on arriving at the 
 port of destination ; the cargo was, however, delivered to the 
 consignees, who paid the freight. The owners abandoned to 
 the insurers on the ship, who were held to be entitled to the 
 freight, upon which they sued the insurers on the freight ; it 
 was decided that they could not recover (/). 
 Notice of aban- Where a constructive loss is treated as total, immediate 
 
 <ionment must notice of abandonment must be given to the underwriters (f/). 
 be given ; ~ ^"^ ■" 
 
 Otherwise the owners can only recover as for an average (h) ; 
 and if they once elect to treat it as a partial loss, they cannot 
 afterwards make it total by ab:!ndoinncnt (/). But the fact 
 
 (6) Chapman v. Benson, fj C. B. 330 ; affirmed in H. L Benson v. Chap- 
 man, 8 C. B. 950 ; 2 H, L. Gas. 696. 
 
 ((•) Afoss V. Smith, 9 C. B. 102. 
 
 {d) Mordy V. Jones, 4 B. & C. 394 : Everth v. Smitli, 2 M. & S. 278. 
 See, however, Michael v. Gillespty, suiyra. 
 
 {e) McCarthy v. Ahel, 5 East, '388. 
 
 (/) Scottish Marine Assurance Co. v. Turner, 4 H. L. Ca. 312, n. 
 
 (f/) It need not be passed on to re-insurers : Uzielli v. Boston Marine In- 
 surance Co., 15 Q. B. D. 11 ; 54 L. J. Q. B. 142. 
 
 [h) Mitchell V. Edie, 1 T. R. 608 : Martin v. Crolatt, 14 East, 465 : 
 Iluntv. Royal Exchange Assurance Co., 5 M. & S. 47 : Fkrningy. Smith, 
 1 H. L. C. 513 : Knight v. Faith, 15 Q. B. 649 : Kaltcnhach v. Mackenzie, 
 3 C. P. D. 467 ; 48 L. J. C. P. 9. 
 
 (i) Fleming v. Smith, 1 H. L. C. 513.
 
 MARINE INSURANCE, 
 
 355 
 
 except in tlie 
 case of freight. 
 
 of a notice of abandonment having been given, which was 
 ineffectual as coming too late, is no bar to their recovering 
 for a total loss, if an absolutely total loss docs ultimately arise 
 from the cause upon which the constructive loss was originally 
 based. As where a ship's papers were first taken away by a 
 foreign government, and some months afterwards — as the result 
 of the same act — she was finally seized (,/). 
 
 In the case of an insurance on freight, however, no aban- 
 donment is necessary, for the simple reason that there is 
 nothing to be abandoned (y.;). There never can be a total loss 
 of freight, except from the inability of the ship to earn it, and 
 from its having in fact not earned it {!). The ship may either 
 be utterly destroyed, or it may be sold to third parties, or in 
 may be abandoned to the underwriters on the ship itself. In 
 the first case, it can earn no further freight ; in the second 
 case, anything earned by it, after the abandonment, would, of 
 course, belong to the owners ; in the third case, to the under- 
 writers (m). 
 
 The question, when a loss which is not actually total can be Insurance free 
 rendered so by abandonment, becomes of great importance in ^yg^a^g^"^^ ^^ 
 the case of insurances free of particular average. Of course 
 nothing can be recovered upon them unless a total loss can be 
 made out. Therefore, where an insurance of this nature was 
 made upon silk, and it became greatly damaged and stunk 
 intolerably, so that it would have been necessary to unship, 
 examine, clean, and dry it : the master sold it where it was. 
 The jury found that he acted as a prudent uninsured owner 
 would have done, but that the silk could at a reasonable and a 
 moderate expense have been so treated as to be sent home as 
 silk. It was held that this could not be made a total loss, 
 
 (j) Mdlishv. Andrews, 15 East, 13. 
 
 {k) Green v. Moydl Exchange Assurance Co. , 6 Taunt. 6S : Mount v. Har- 
 rison, 4Biag. 388 : overruling Panavter y. Todhunter, 1 Camp. 541 : Potter x. 
 Rankin, L. R. 5 C. P. 341 : 39 L. J. C. P. 147, in Ex. Ch.; L. R. 6 H. L. 83. 
 
 {I) Moss V. Smith, 9 C. B. 94. 
 
 (m) Case v. Davidson, 5 M. & S. 79 ; affirmed 2 B. & B. 379 : Stenart v. 
 Greenock Insurance Co., 2 H. L. C. 159. Where goods and ship belong to 
 the same owners, and there is no pending freight, the underwriters on ship 
 are entitled to compensation for the carriage of the goods in the ship subse- 
 quent tn the casualty : Miller v. WoodfaU, 8 E. & B. 493 ; 27 L. J. Q. B. 
 120. The underwriters are not entitled to freight earned by another ship 
 into which the goods are transferred : Hickie v. Eodocanachi, 4 H. & N. 445 ; 
 28 L. J. Ex. 273. 
 
 A A 2
 
 356 
 
 MARINE INSURANCE. 
 
 Total loss of 
 separate par- 
 cels of the 
 :argo. 
 
 Ralli V. 
 Janson 
 
 Case of goods 
 differing in 
 species. 
 
 and, therefore, nothing could be recovered (w). The principle, 
 however, on which total and partial losses are distinguished 
 is exactly the same, whether the policy admits of particular 
 average or does not (o). 
 
 It was at one time supposed that even where the insurance is 
 free from average, if the goods insured are in separate parcels, 
 as hogsheads of sugar, or bales of silk, there might be a tota 
 loss of some, though others are not injured within the terms 
 of the pohcy (p). One case went even beyond this rule. The 
 insurance was on flax, warranted free of particular average. 
 The vessel was wrecked, and part of the flax was saved from 
 the wreck, part floated on shore, but all the packages were 
 broken up. No entire package came on shore. This was held 
 to be a total loss as to that part which was never recovered at 
 all (q). The result would be to draw a distinction between two 
 things which are, in fact, identical ; viz., a partial loss of the 
 whole, and a total loss of part of the cargo. The Court of 
 Exchequer chamber reviewed these cases elaborately in Ralli v. 
 Janson (r), and decided that no such distinction existed ; and 
 that the fact of goods, which were insured free from average, 
 being packed in separate parcels were immaterial, unless these 
 parcels were separately valued and insured. 
 
 After thus overruling Davy v. Milford, the law was laid 
 down to be that " where memorandum goods of the same 
 species are shipped, whether in bulk or in packages not ex- 
 pressed by distinct valuation or otherwise in the policy to be 
 separately insured, and there is no general average and no 
 stranding, the ordinary memorandum exempts the under- 
 writers from liability for a total loss or destruction of part 
 only, though consisting of one or more entire package or 
 packages, and though such package or packages be entirely 
 destroyed, or otherwise lost by the specified perils." 
 
 In Ralli v. Janson, the Court exprttsly declined to say what 
 
 (n) Navone v. Baddon, 9 C. B. 30. 
 
 (o) Rovx V. Salvador, 3 B. N. C. 277. 
 
 {p) Leids V. Ilucker, 2 Burr. 1170. 
 
 (q) Davyy. Milford, 15 East, f.f)9. 
 
 (r) Ralli v. Janson, 6 E. & B. 412 : S. C. nom. Jarn'on v. Ralli, 25 L. .J. 
 Q. B. 300. The law is the same in the United States, 2 Pliillips on In- 
 surance, c. 1773, p. 459, 3rd ed. See as to what constitutes a separate 
 insurance on each package, Entwidc v. Ellis, 2 H. & N. 549 ; 27 L J Ex 
 105.
 
 MAKINE INSURANCE. 357 
 
 the consequence would be, if the goods were not all of the 
 same species. Two cases have since decided that where articles 
 of different nature and kind are insured under a general de- 
 scription, the underwriters may be liable for a total loss of 
 some of the articles, though the rest are preserved. In the first, 
 the insurance was by the master of a vessel on " master's effects 
 warranted free from all average." He saved his chronometer 
 and a few other things, but the rest were totally lost. He was 
 held entitled to recover the value of the articles lost. The 
 word " effects " was considered to have been employed to save 
 the task of enumerating the nautical instruments, chronometer, 
 clothes, books, and other things of which they happened to 
 consist (s). In the other case, the insurance was on " goods " 
 valued at a certain sum, and the insured put on board an 
 emigrant's equipment, consisting of a variety of tools, materials, 
 &c., in several small packages. All were lost except three small 
 packages ; it was decided that he might recover as for a total 
 loss of the rest (t). 
 
 3. The preceding remarks have necessarily involved a state- Total loss 
 raent of the cases in which only a partial loss can be claimed, changed mto 
 It is only important to add that a total loss may be changed 
 into a partial one by matter subsequent ; as where a total loss 
 has occurred by capture, or in case of freight by embargo, 
 which, by recapture or removal of the embargo, has been 
 changed into a partial loss, in consequence of salvage and 
 other charges ; unless the ship, by reason of the capture and 
 resulting loss and charge, is so valueless as, per se, to justify 
 abandonment (u). And it makes no difference that notice of 
 abandonment was given before the circumstances which turned 
 it from a total into a partial loss were ascertained («-')• Even 
 though at that time nothing had occurred to alter the character 
 of the loss (x). Where, however, notice of abandonment has 
 
 (s) X>m/v. Mackenzie, 3 C. B. N. S. 16 ; 26 L. J. C. P. 313. 
 
 (0 Wilkinson V. Hyde, 3 C. B. N. S. 30 ; 27 L. J. C. P. 115. 
 
 (u) Hamilton v. Mendes, 2 Burr. 1198. To change the total loss into a 
 partial loss the ship or goods must not only exist, but the circumstances must 
 be such that the assured may reasonably be expected to take possession : 
 Holdsworth v. Wise, 7 B. & C. at p. 799 : Lozano v. Janson, 2 E. & E. 160 ; 
 28 L. J. Q. B. 337. 
 
 {v) Bainbridge v. Neilson, 10 East, 329. 
 
 (x) Patterson v. Ritchie, 4 M. & S. 393 : Brotherstun v. Barber, 5 M. & S. 
 418.
 
 358 
 
 MARIXE INSUEANXE. 
 
 Value may be 
 agreed before- 
 hand. 
 
 Amount re- 
 covered on 
 other policies 
 must be de- 
 ducted. 
 
 Modes of 
 valuing goods 
 on open policy 
 
 been given under circumstances which justified it, and accepted 
 by the underwriters, this acceptance is final, even though cir- 
 cumstances subsequently occur, such as re-capture of the ship, 
 which change the loss back again into a partial one {y). 
 
 4. The character of the loss being settled, the next thing is 
 to ascertain the value of the thing lost, which may be done 
 either by evidence after the loss, or by the previous agreement 
 of the j)arties. For a policy of insurance is not a perfect con- 
 tract of indemnity. It musi be taken with this qualification, 
 that the parties may agree beforehand in determining the value 
 of the subject insured by way of liquidated damages, as indeed 
 they may in every other contract to indemnify (2). Therefore, 
 when an insurance was made upon a ship, valued at 17,500/. 
 and she suffered damage to her rigging and machinery in a 
 storm which could not be repaired for less than 10,000/., after 
 which the ship would have only been worth 9,000/. ; no injury 
 was done to her hull. The assured were allowed to abandon 
 and recover the whole sum («). 
 
 But the contract being one of indemnity, and both parties 
 being bound by the agreed value, an assured who has recovered 
 under other policies can only recover the difference between 
 the amount so received and the agreed value in the policy {h). 
 
 Where there has been a total loss on all the goods, if the 
 policy is a valued one, the price fixed must be taken {c). Where 
 the policy is open, the value of the goods is fixed by taking 
 their invoice price at the port of lading, including premium of 
 commission and insurance {d). And, perhaps, a payment made 
 on the shipment of goods, as the price of the privilege of put- 
 ting them on board, may be added to their value. But pay- 
 
 (y) Smith V. Robertsov, 2 Dow. H. L. C. 474 : Bainhridge v. Neilson, 10 
 East, 329 : contra, McCarthy v. Ahtl, 5 East, 3S8. As to what is accept- 
 ance of abandonment, see ISItepherd v. Uencltrsoii, 7 App. Cas. 49. 
 
 (z) Per Patteson, J., Irving v. Manning, 1 H. L. G. 287 ; 6 C. B. 391 ; 
 affirming S. C, 1 ('. B. 168 ; 2 C. B. 784. Such valuation does not prevent 
 the Court from looking into the elements of the valuation, so as to ascertain 
 what is the subject-matter to which the valuation applies : Williams v. 
 North China Insurance Co., 1 C. P. D. 757. 
 
 (a) Irving v. Manning, supra ; Allen v. Sugrue, 8 B. & C. 561. 
 
 (6) Bruce v. Jones, 1 H. & C. 769 ; 32 L. j! Ex. 132. See ante as to fire 
 insurance, p. 349. 
 
 (c) Lewis V. liuckcr, 2 Buit. 1171 : Irving v. Manninn, 1 C. B. 168 ; 2 
 C. B. 784 ; 6 C. B. 391. 
 
 [d) Usher v. Noble, 12 East, 629.
 
 MARINE INSURANCE. 359 
 
 ments made for port charges, and other incidental expenses at 
 the loading port, by virtue of a charter-party of which the 
 insurers had no knowledge, cannot be so added (e). 
 
 An insurance on cargo, or on goods, means the entire cargo. Deduct t 
 or all the goods to which the policy attaches. Therefore, if a ^!^itiK[i.awa *^^ 
 part of the goods or cargo is safely put on shore, and the rest from risk. 
 is lost, a proportionate deduction must be made from the 
 amount that can be claimed from the insurers. And it makes 
 no diflFerence whether the policy is valued or open. Because, 
 in each case, part of the subject-matter has been withdrawn 
 from risk (/). On the same principle, an insurance on freight 
 "where nothing is said to the contrary, is considered to be an 
 insurance on the freight of a full cargo or the charter of the 
 entire ship. If, therefore, less than the full freight would have 
 been earned, had there been no loss, a proportionate deduction 
 must be made from the amount that can be recovered, in the 
 event of a loss (g). 
 
 Where the insurance is on freight, and the policy is open, Valuation of 
 which rarely happens, the usage, sanctioned by decision, is to ^^^° *' 
 adjust the payment on the gross amount of freight payable, and 
 not on the net amount after paying expenses (Ii). 
 
 There may be a total loss of part of the freight, if the ship 
 is so damaged that she either cannot absolutely, or cannot with- 
 out extravagant cost, be repaired so as to bring home that part. 
 But in estimating this, the cost must be calculated with refer- 
 ence to the entire value of ship and freight, not to the value of 
 the freight only (?). In such a case, of course, an aliquot 
 amount of the gross freight is the measure of damage. 
 
 In all cases of constructive total loss, whether of ship, goods. Salvage. 
 or freight, the insurer is entitled to the benefit of all that is 
 made out of the subject-matter after the injtny, as salvage (7c). 
 
 He is also entitled to the benefit of all rights and remedies Subrogation, 
 
 (f) Winter v. Haldimand, 2 B. & Atl. 649. 
 
 if) Tohin V. Harford. 13 C. B. N. S. TOJ ; 32 L. J. C. P. 134 ; affirmed 
 in Ex. Ch. 17 C. B. N. S. 528 ; 34 L. J. C. P. 37. So in America : Brook 
 V. Louisiana Insurance Co., 4 Martin, N. S, 640, 681. 
 
 {g) Forbes y. Aspinall, 13 East, 323 : Denoon y. Home and Colonial A s- 
 sura7ice Co., L. R. 7 C. P. 341 ; 41 L. J. C. P. 162. 
 
 (h) Palmer v. Blackburn, 1 Bing. 61. 
 
 (/) Mogs V. Smith, 9 0. B. 104, 108. 
 
 (/t) lloux V. Salvador, 2 B. N. C, 281, 238 : Green v. Fcoyal Exchange 
 Assurance Co., 6 Taunt. 72.
 
 360 MARINE IN'SUEANCE. 
 
 possessed by the insured, which conld be enforced, or which 
 accrue to him, as a means of lightening his loss (/). 
 
 The net salvage is that which remains after the expense of 
 saving it, which must therefore be made good to the owner 
 by the underwriters who benefit by it in their respective 
 proportions (m). 
 
 Where there is a policy of insurance on the freight of a 
 specific cargo, if the captain, being driven back and unable ta 
 proceed with the original cargo, was yet able to proceed with a 
 less cargo, on less freight, the underwriters are entitled to the 
 benefit of this (n). 
 Valuation cf Where the loss is partial in the case of a ship, the question 
 
 partial loss -g j.^ ^^iat extent has she been iniured by the accident ? What 
 
 to ship. ' . . 
 
 was her difference in value before and after it ? An obvious 
 mode of ascertaining this is, by finding out what has been pro- 
 perly and prudently incurred in repairing the damage, excluding 
 everything which amounts to actual new works or additions to 
 th^ ship as she originally stood (o). If, however, the ship has 
 b^en sold in her damaged condition, under circumstances which 
 do not entitle the owner to claim for a total loss, the amount 
 recoverable is the difference between the selling price and the 
 value of the ship at the commencement of the risk (p). No 
 allowance can be made for repairs which have not been effected, 
 unless the ship sold for less in consequence of not being 
 repaired. If she did, such difference of price would be the 
 result of the peril insured, and of this difference the cost of 
 repairs would be the measure. A ship met with a collision, 
 returned to port, and was repaired. On setting out again it 
 was discovered that she still leaked, and she returned again, 
 and was again examined, and for that purpose stripped of her 
 lower strake of wales. In consequence of the misconduct of 
 the surveyors in not replacing her wales, her lower timbers 
 
 (I) North of Evgland Insurance Association v. Arrmtrong, L. R. 5 Q. B. 
 244. See ante, p. 349. 
 
 (m) Sharp v. Gladstone, 7 East, 24. As to the powers of the Court of 
 A]ipeal to deal with the amount of salvage awarded by the first Court, see The 
 Accomac, [1891] P. 349 ; 59 L. J. P. 91. 
 
 («) Grten v. Jioyal Excliavge Asmravcc Co., 5 Taunt. 68, 72. 
 
 lo) Steu-art v. Steele, 5 See. N. R. 927 : Aitchiaon v. Lohre, 4 App. Cas. 
 755 ; 49 L. J. Q. B. 123. 
 
 (p) Pitman v. Univenal Marine Insurance Co., 9 Q. B. D. 192 : 51 L. J. 
 Q. B. 561.
 
 MARINE INSURANCE. 361 
 
 decayed so rapidly by heat and rain, that it finally became 
 useless to repair her, and she was sold to be broken up. This, 
 of course, could not be claimed for as a total loss, the proxi- 
 mate cause of the injury not being a peril insured against. 
 The plaintiflF, however, claimed to recover what would have 
 been the cost of replacing the wales (which had not been re- 
 placed) as a partial loss. Held, that if he could have shown 
 that he was about to refit the vessel to put her into the state of 
 a sailing ship, and that he meant to sell her as a sailing ship, 
 that would have been one of the expenses which he might have 
 insisted on. His measure of damage would then have been 
 the expense of replacing the wales, or the difference in value 
 between the ship so dismantled of her wales, and the ship with 
 the wales put up again. But as she was sold avowedly to be 
 broken up, and as for that purpose she would have fetched no 
 more if the repairs had been executed, no allowance could be 
 made on account of them (q). As, however, it would be unfair New for old. 
 that the underwriters should pay the entire costs of the repairs 
 while the owner is put in a better position than before by the 
 substitution of new materials for old, a usage of subtracting one 
 third of the cost on this account has sprung up (r). The rule, 
 however, extends no further than the reason for it ; and there- 
 fore where the owner has derived no benefit, as where the 
 vessel was on her first voyage (s), or where the ship has never 
 come into the owner's hands, being either sold or broken 
 up (/), no such reduction is made. 
 
 Where there has been a partial loss upon goods, if the policy Valuation of 
 is valued, the rule is as follows. As the price which the goods partial loss to 
 would have fetched, if sound, on arrival at the port of delivery, ^°° ^ ' 
 is to the difference between the price and their market value 
 at the same time and place, being damaged, so is the value in 
 the policy to the amount payable as loss. And it makes no 
 difference that, if they had not been damaged, they could have 
 
 iq) Stewart v. Steele, 5 Sco. N. R. 927. 
 
 {r) Poiivjdestre v. Royal Exclutnge Assurance Co., E. & ^lood. 378 : 
 Altchison v. Lohre, 4 App. Cas. 755 ; 49 L. J. Q. B. 123. 
 
 (s) Feiiwkk v. Robinson, 3 C. & P. 323 : Pirie v. Steele, 8 C. & P. 200. 
 If the policy provides that the deduction shall not be made until the ship is 
 of a certain age, but shall be made after that age, it becomes immaterial 
 whether the first voyage has or has not been completed : Byrne v. Mercantile 
 Insurance Co., 4 H. & C. 506. 
 
 {t) Da Costa v. Newnham, 2 T. R. 407 : Stewart v. Steele, ubi sup. 
 
 \
 
 362 MARINE INSURANCE. 
 
 been kept and realised a mnch larger sum afterwards («)• Where 
 the poUcy is not valued, the rule is still the same, substituting 
 " the invoice price 7;/ Z6s premium of insurance and commission," 
 for " the value in the policy " (.r). The object and eiiecfc of 
 the rule in either case is the same, viz., to indemnify the assured 
 without injustice to the insurer. The diminution in value is 
 calculated by the relative price of sound and damaged goods 
 at the port of delivery, where they would have to be sold ; 
 bacause it is their price there which alone can determine the 
 ratio of loss. But the value in the pohcy, or the invoice price 
 is taken as the standard upon which payment is to be made ; 
 because otherwise the loss to the insurer would depend upon 
 something against which he has not insured, viz., the rise or 
 fall of the market. Xo allowance can be made in consequence 
 of the fact that the damage caused to part of the goods has 
 caused the whole cargo to fall in estimation, and has thereby 
 affected the selling value of the uninjured portion of the 
 goods (y). 
 partial loss There can only be a partial loss of freight, as distinguished 
 
 of freight. fi-Qni a total loss of part of the freight, by reason of expenses 
 incurred in preserving it (z) ; these, of course, create no 
 difficulty in estimating. A shipo\^Tier on an insurance of 
 freight, may recover for the profits which he would have 
 made by carrying his own goods ; for these profits are of the 
 same nature, whether he carries his own goods or those of 
 another (a). 
 
 The extent of damages to which the underwriters are liable 
 may sometimes be very difficult to ascertain ; as, for instance, 
 where a certain injury has happened from a cause insured 
 against, and afterwards a fresh injury, which is not insured 
 against occurs, and no examination has taken place in the 
 meantime; the case, however, must still be left to the jury, 
 and the apparent impossibility of arriving at a conclusion is no 
 ground for directing nominal damages (b). 
 
 (m) Lncisy. Rucker, 2 Burr. 1167 : Catw v. G. W. Insurance Co., L. R. 
 8 C. P. 552 ; 42 L. J. C. P. 266. 
 
 (x) Usher v. Noble, 12 East, 646 : Waldron v. Coomhe, 3 Taunt. 162. 
 
 \y) Cator v. G. W. Insurance Co., L. R. 8 C. P. 552 ; 42 L. J. C. P. 
 266. 
 
 {z) Moss Y. Smith, 9 C. B. 103. 
 
 (a) Flint v. Flernyng. 1 B. & Ad. 45. 
 
 (6) Hare v. Travis, 7 B. & C. 14 : KnljU v. Faith, 15 Q. B. 670.
 
 GENERAL AVERAGE. 
 
 363 
 
 It is now settled that general average and salvage do not Charges in- 
 come within the suing and labouring clause. That clause is preservation 
 intended to encourage and induce the assured to exert them- ot the vessel, 
 selves to preserve the subject-matter of the insurance, and only 
 applies to labour undertaken by the assured themselves, or their 
 agents, or by persons whom they have hired for the purpose (c). 
 Nor does it apply unless the subject-matter of the insurance is 
 in some peril for which the underwriters would be liable, and 
 which the particular exertion has a tendency to couuteract. 
 For instance, if a ship is disabled on its voyage, the goods 
 being uninjured, the charges of landing and transhipment are 
 recoverable under this clause against the insurers of freight ; 
 for without such transhipment the freight would be lost {d). 
 They would not be recoverable against the insurers of the goods, 
 since the circumstances of the case threw no liability upon 
 them (e). Such expenses, when otherwise recoverable, are dis- 
 tinct from particular average, and are not excluded by the 
 warranty against particular average as regards special classes 
 of goods. That is to say, expenses will be awarded under this 
 clause which were incurred to avert a peril for which the under- 
 writers would be liable if it caused a total loss, or a loss above 
 a. particular percentage, even though the expenses by them- 
 selves, or coupled with the loss which has actually happened, 
 do not make up that percentage (/). Such expenses can be 
 recovered, though incurred before a total loss arising from a 
 cause for which the insurers are not liable ((/) ; and though 
 they make the total amount greater than the subscription of 
 the under^Titer (A). We have seen that two-thirds only of 
 those incurred in repairing the vessel can under certain circum- 
 stances be set up (/). The charges for provisions and wages, 
 
 (c) AHcMson v. Lohre, 4 App. Cas. 755, at p. 764 ; 49 L. J. Q. B. 123 : 
 Uzielli V. Boston Marine Insurance Co., 15 Q. B. D. 11 ; 54 L. J. Q. B. 142. 
 
 (d) Kidston v. Empire Marine Insurance, L. R. 1 0. P. 535 ; 2 C. P. 
 357 ; 36 L. J. C. P. 156. 
 
 (e) See ^Jcr Willes, J., L. R. 1 C. P. 54S, explaining Great Ind. Penin- 
 sula Co. V. Saunders, 1 B. & S. 41 ; 30 L. J. Q. B. 218 ; 2 B. & S. 266 ; 
 31 L. J. Q. B. 206 : Booth v. Gair, 13 C. B. N. S. 291 ; 33 L, J. C. P. 99. 
 
 (/) Kidston v. Empire Marine Insurance, uhi sup. 
 
 (g) Livie v. Janson, 12 East, 648. 
 
 {h) Le Che7ninant v. Pearson, 4 Taunt. 367 : Lohre v. Aitchison, 3 Q. B. 
 D. 558, 566. The reversal of this case in 4 App. Cas. 755 ; 49 L. J. Q. B. 
 123, merely decided that the particular expenses did not come within the 
 clause. 
 
 (i) Ante, p. 361.
 
 364 
 
 GENERAL AVERAGE. 
 
 Liability of 
 insurers to 
 reimburse a 
 general aver- 
 age loss. 
 
 How far bound 
 by foreign 
 adjustment. 
 
 where a ship is detained by an embargo, fall upon the owner 
 and are borne by the freight (k) ; these, therefore, are not 
 recoverable from the insurer of the ship (/) unless it has been 
 abandoned to him, and then as he stands in the place of the 
 owner, he must bear them (in). 
 
 A claim against the insurers may also arise out of any contri- 
 bution, which the insured has been forced to make, in respect 
 of an average loss. They are not bound, however, to reimburse 
 to him the full amount of his contribution, but only that pro- 
 portion of it which the value of his interest as insured bears 
 to its value as estimated for the purposes of contribution ; or 
 to put the same thing in another way, the owner of the goods 
 (as one of the parties to the contribution) has to pay in contri- 
 bution (suppose) 10 per cent, on their contributory value; but 
 the underwriter has only to pay to the owner of the goods (as his 
 assured) 10 per cent, on their value in the policy. Therefore, if 
 the contributory value of the goods be 1,-500/., and they are only 
 insured for ooij/., the owner will have to pay 150/. contribution, 
 but he can only recover 50/. of this from the insurer (w). 
 
 Where the adjustment of the average loss has been settled 
 in a foreign port, on principles different from those which 
 would have been acted upon in England, the underwriter is 
 bound by such adjustment, when rightly settled according to 
 the laws and usages of the place where it is made, and could 
 have been enforced (o). But in the absence of clear proof thati 
 the usage of the country is such, the underwriter is not bound, 
 unless the loss would be an average one in the country where 
 the policy is made ; and the mere recital of the law on the 
 face of the foreign decree, assuming the supposed usage as its 
 foundation, is not proof enough (])). 
 
 {k) Da Costa v. Newnkam, 2 T. R. 414. 
 
 (l) Jtobertson v. JEit-er, 1 T. R. 127. 
 
 (m) Thompson v. Houxroft, 4 East, 34. 
 
 (n) 2 Arnould Ins. 950 ; 917, Cth ed. 
 
 (o) Walpole V. Ewer, Park Ins. 898, 8tli ed. : Xeicman v. Cmalct, ibid., 
 900, 8th ed. : Ilarris v. Scaramanga, L. R. 7 C. P. 481 ; 41 L. J. C. P. 
 170. See the American cases, 2 Phill. 165. And the same rule was adopted 
 where the insured h^id contracted to be bound by the practice of British 
 average adjusters, although such practice was in fact erroneous : Stewart v. 
 West Indian <t Paciiic Steam Ship Co., L. R. 8 Q. B. 88 ; 42 L. J. Q. B. 84 ; 
 affirmed L. R. 8 Q. B. .362 ; 42 L. J. Q. B. 191. 
 
 {p) Power V. Whitmore, 4 M. & S. 141 ; 2 Am. 946 ; 814, 4th ed. ; 912, 
 6th ed.
 
 GENERAL AVERAGE. 365 
 
 As to interest under stat. 3 & 4 W. lY. c. 42, see ante, tit. Interest. 
 Interest {q). Independently of this statute, interest cannot be 
 recovered as a matter of right (?-). 
 
 IV. It now remains to give a brief sketch of the doctrine of Grcueral 
 General Average, so far as it is connected with the question of ^^^'"^so- 
 damages. 
 
 A general average loss is defined to be a loss arising out of 
 extraordinary sacrifices voluntarily made, or extraordinary ex- 
 penses necessarily incurred, for the joint benefit of ship and 
 cargo. Where such a loss has taken place in a sea adventure, 
 all the parties engaged in it are bound to make good the loss 
 incurred by one or more of their co-adventurers, by reason of 
 such sacrifice or expense {s). 
 
 It does not come within the scope of this work to examine 
 the cases in which this claim arises, nor to inquire when the 
 loss may be subject of contribution, and when it must be borne 
 by the shipowner. These questions fall strictly within the law 
 of shipping and insurance, and will be found amply discussed 
 in every treatise upon the point. Supposing, however, a claim 
 for general average contribution to be established, it will then 
 be necessary, with a view to damages, to ascertain, First, what 
 is the fund from which contribution is to be made : Second, 
 what are the principles upon which that contribution is to be 
 calculated. These two heads will establish the amount of 
 contribution to which the party suffering is entitled. 
 
 I. The ship and freight always contribute (J). And all Sources of con- 
 goods carried for traffic, whether they pay freight or not, and 
 
 (5') Ante, p. 164. 
 
 (j-) KinrjKton v. ilTntosJi, 1 Camp. 518. 
 
 (s) Arn. 877 ; 891, 6th eJ. As to what operations are for joint benefit of 
 ship and cargo, see Job v. Lan'/ton, 6 E. & B. 779 ; 26 L. J. Q. B. 97 : 
 Moran v. Jones, 7 E. & B. 523 ; 26 L. J. Q. B. 187 : Kemp v. HaUiday, 
 6 B. & S. 723 ; L. R. 1 Q. B. 520 ; 35 L. J. Q. B. 156 : Walthew v. Mav- 
 rojani, L. R. 5 Ex. 116 ; 39 L. J. Ex. 81, in Ex. Ch. : Harrison v. Bank 
 of Australasia, L. R. 7 Ex. 39 ; 41 L. J. Ex. 36 : Robinson v. Price, 2 0. 
 B. D. 91, 295 ; 46 L. J. Q. B. 22, 551 : Shepherd v. Kottgen, 2 C. P. D. 
 578, 585 ; 47 L. J. C. P. 67 : Atwood^. SelUir, 5 Q. B.D. 286 ; 49 L. J. Q. B. 
 515 : Svensdcn v. Wallace, 13 Q. B. D. 69 ; 53 L. J. Q. B. 3S5 ; afi"d. 10 
 App. Ca. 404 ; 54 L. J. Q. B. 497. 
 
 it) Abbott, Ship., 8th ed. 503 ; 657, 13th ed., unless the shipowner is the 
 only person interested in both ship and freight, as where the loss claimed as 
 general average occurred when the ship was proceeding in ballast on her out- 
 ward voya'^e for the purpose of earning freight on the return voyage. The 
 Brigdla, [1893] P. 189 ; 62 L. J. P. D. A. 81. 
 
 I
 
 3GG GKXEKAL AVEEAGE. 
 
 whether they belong to merchants, passengers, owners, or 
 masters (?<)• And such goods pay according to value, nob 
 weight ; tor the contribution is made not on account of the 
 incumbrance to the ship, but of the safety obtained. There- 
 fore, in this country bullion and jewels contribute according to 
 their full value (x). But gold or silver, jewels, precious stones, 
 or other articles of value, do not contribute when carried about 
 the person, or forming part of the wearing apparel, nor does 
 the luggage of passengers (?/). Deck goods contribute though 
 they are in general not contributed for (s). Provisions and 
 warlike stores do not contribute (a), although if cast over- 
 board their amount is refunded. The reason of this is stated to 
 be, that these articles themselves are the means of preserving 
 and benefiting the whole. But this reason might with equal 
 propriety be applied to all the ship's furniture. The true 
 reason appears to be, that provisions, being destined to be 
 consumed during the voyage, belong to wear and tear. The 
 exception, however, only extends to what is meant to be used 
 during the passage, and not to such provisions as may be 
 shipped on freight (b). Goods carried by mariners on their 
 own account contribute, unless perhaps when the permission 
 of carrying a certain quantity is granted to them in Leu of 
 wages (c). 
 
 Mariners do not contribute for their wages, except in the 
 single instance of the ransom of the ship. In that case they 
 are required to contribute, in order to encourage resistance (d). 
 Ransom is now prohibited by statute (e), but only in the case 
 of enemies. It is still lawful when the vessel has fallen into 
 the hands of pirates or other plunderers (/). 
 Things sacri- That which has been sacrificed contributes, in general 
 
 iute. '^^"*"" a'^erage, equally with that which has been saved. Otherwise 
 
 («) Abbott, Ship., 502 ; 657, 13th ed. Brown v. Stapyleton, 4 Bing. 
 119. 
 
 (x) Abb. ubisiip., 1 Magens, 62, 63. 
 
 (y) Am. 919 ; b90, 6th ed. Abb. 503 ; 657, 13tb ed. 
 
 (s) Stevens, 210 ; (Am. ed. Phill.) ; Ain. 919 ; 890, 6th ed. 
 
 (a) Broicn v. Stapyleton, 4 liing. 119. 
 
 (6) Benecke, 307. 
 
 (c) Benecke, 308. 
 
 (cZ) Abb. 504 ; 658, 13th ed. ; Benecke, 308. 
 
 (e) 22 G. III. c. 25 ; 43 G. III. c. 160, ss. 34, 35 ; 45 G. III. c. 72, ss. 
 16, 17. 
 
 (/) Arn. 916 ; 887, 6th ed.
 
 GENERAL AVERAGE. 367 
 
 the owner, receiving their total value, would suffer no loss by 
 the sacrifice, while the other owners would. Not only goods 
 jettisoned, but those which have been sold for the benefit of 
 ship and cargo, contribute, for they are equally contributed for : 
 and the same is the rule as to the freight, which would have 
 been payable in respect of them : for it is also contributed for, 
 and must therefore take its share in the entire loss {(j). 
 
 Nothing of course contributes which has not been exposed Only property 
 to the risk ; because if it was never placed iu jeopardy, it was contilbutes"^ ' 
 not saved by the loss, and cannot be liable to make it good. 
 Therefore, neither goods landed, nor sold for the necessities of 
 the ship before jettison, nor those taken on board afterwards, 
 contribute {h). Nor do goods which have been jettisoned 
 themselves contribute for any subsequent disaster, nor does 
 the owner of goods jettisoned, who recovers them after a second 
 jettison, contribute towards such subsequent loss (?'). 
 
 Freight, in order to be contributory at all, must have been Freight when 
 pending at the time of the sacrifice. If the cargo, or part of ^°^ ^^ " °^^' 
 it, has been delivered before the average loss, the freight due 
 in respect of it does not contribute, nor does freight paid in 
 advance (/"). Where a ship was chartered for an entire voyage 
 out and home, under a stipulation that no freight was to be 
 paid for the home voyage, unless both were performed safely, 
 and a general average loss occurred on the out voyage, it was 
 held that the freight home should contribute, on the ground 
 that it was one entire sum (/), But this decision has been 
 doubted by Benecke {m), who thinks that the freight ought to 
 have been apportioned with a view to contribution, and that 
 each voyage should bear its own loss (n), 
 
 ig) Am. 918 ; 889, 6th ed. ; Stevens, Av. 61, 6tb ed. ; Abb. 505 ; 663, 
 13th ed. 
 
 {h) Am. 917; 888, 6th ed. ; Royal Mail S. P. Co. v. EngUsh Bank of 
 Rio Janeiro, 19 Q. B. D. 362 ; 57 L. J. Q. B. 31. 
 
 {i) Am. 918 ; Benecke, 182 ; but see Arn. 889, 6th ed., where the modern 
 practice is stated to be different. 
 
 (^•) Arn. 937 ; 905, 6th ed. ; Beneckd, 314. But if it is not to be recovered 
 back by the shipper in any case, it contributes in the hand of the shipper, 
 either directly as an interest in freight, or indirectly in the enhanced value of 
 his goods at risk : Frayes v. Worms, 19 C. B. N. S. 159 ; 34 L. J. C. P. 
 274 ; Arn. 905, 6th ed. 
 
 {I) Williams v. London Assurance Co., 1 M. & S. 318. 
 
 (m) P. 315. 
 
 (?i) See 2 Phill. 142, as to cases where a ship is chartered for successive 
 ports.
 
 368 
 
 GENERAL AVEEAGE. 
 
 Valuation of 
 loss ; 
 
 of ffoods. 
 
 Deil action 
 for probable 
 injury. 
 
 11. The principles upon which the contribution is to be made 
 must depend upon two points : First, the mode of estimating 
 the loss incurred ; secondly, that of estimating the value of the 
 property saved. 
 
 1, As to goods ; this will depend upon the place where the 
 adjustment is eifected. If at the port of starting, the value will 
 be the price of the goods, increased by the shipping charges and 
 insurance, if the goods cannot be replaced (o). If they can be 
 replaced, their cost price and charges without insurance, which 
 will be saved {p). Where the adjustment takes place at an 
 intermediate port, or at the port of destination, they are taken 
 at the net value they would have sold for there, deducting 
 freight, duty, and landing expenses {q). If, however, the rest 
 of the goods saved have been damaged by the same accident as 
 that which caused the jettison, or by a subsequent disaster, it 
 may be presumed, that if the goods cast away had remained on 
 board, they would have met a similar fate. Their value must 
 be estimated, as if they had arrived at the port of adjustment 
 in a state of as great damage as the rest of the cargo (r). 
 And if liable to leakage, or breakage, a similar deduction ought 
 to be made on that account (s). If the goods jettisoned are 
 recovered before adjustment, the loss is estimated by adding 
 
 (o) Bcnecke, 289 ; Arn. 929 ; 898, 6th ed. : Tudor v. Maeomber, 4 Pick. 
 34 ; 2 Pbill. 131. Pie-paid freigbt must be also added if the goods would 
 have been carried on : Fletcher v. Alexander, L. R. 3 C. P. at pp. 385, 387 ; 
 37 L. J. C. P. 200, 202 : Frayes v. Worms, stipra. 
 
 ip) Benecke, 288. 
 
 iq) Arn. 929 ; 899, 907, fith ed. ; Beneck^, 288, 289. 
 
 [r) Benecke, 290 ; Arn. 930 ; 899, 6th ed. Tliis question was considered 
 in a recent case, in which half of a cargo of salt on board of a ship which 
 .sailed from Liverpool to Calcutta, was jettisoned on tlie Irish coast, and the 
 other half brought back to Liverpool so damaged as to be almost worthless. 
 The conclusion to be drawn from the discussion would seem to be, that there 
 is no rule or jiresumption of law respecting the condition in which the 
 goods jettisoned would have arrived if they had not been thrown overboard ; 
 but regard must be had to all the probabilities of the case, the nature of the 
 goods, and the mode in which they were packed. And tha.t if, under the cir- 
 cumstances of that case, the average stater came to the proper conclusion that 
 they would have arrived at Liverpool in a sound state, so that they might have 
 been earned on, the value would be the cost price, with the shipping charges, 
 l^remium, and prepaid freight. If, on the contrary, he came to the conclusion 
 that they would have arrived so damaged as not to be worth carrying on, or 
 the ship was so damaged that she could not be repaired so as to carry on the 
 adventure, tlie value of the goods in their damaged condition must be taken 
 without freight or charges : Fletcher v. Alexander, L. R. 3 C. P. 375 ; 37 
 L. J. C. P. 193. 
 
 (s) 2 Phill. 131.
 
 GENERAL AVERAGE. 369 
 
 the amount of damage they have sustained to the expenses of 
 recovering them (/). 
 
 Where jewels or other articles of great value are designated Jewels, &c. 
 in the bills of lading as of inferior value, they are allowed for 
 at the value stated. But articles of this nature in passengers' 
 trunks are allowed for at their real value, because no bills of 
 lading are signed for such goods (u). 
 
 As a general rule, goods taken on deck are not contributed Djck goods. 
 for if lost (.r). But where an established usage to carry goods 
 in this manner is proved, they may be contributed for ; as, 
 for instance, timber, or pigs carried between Waterford and 
 London (ij). 
 
 The amount payable for freight of goods jettisoned is calcu- Ffeiglit. 
 lated at the gross amount they would have earned if saved (z). 
 But if part of the goods saved by the jettison are afterwards 
 lost, it must be presumed that a similar portion of those cast 
 away would have been lost also, and freight can only be allowed 
 on the residue (a). 
 
 Damages done to the ship in such a manner as to form a Ship, 
 general average loss, may amount to a partial injury, or a total 
 destruction. In the former case, the measure of indemnity is 
 the cost of repair, deducting one-third new for old (b). In the When totally 
 latter case, it was, however, contended that no contribution at '°^*- 
 all should take place. It was argued that where the destruc- 
 tion of the vessel, by running her aground, suppose, became 
 absolutely necessary, it was no longer such a voluntary act as 
 would constitute an average loss. That if it w^ere not abso- 
 lutely necessary, it was merely a gratuitous damage. The 
 contrary doctrine, however, has been established in America, 
 
 (<) Am. 930 ; 899, 6th ed. ; 2 Phill. 134. 
 
 (m) Benecke, 294. 
 
 {x) Moss V. Thwaite ; Backhouse v. Ripley, Park Ins. 23, 24 : Miller v. 
 Tether ivff ton, 6 H. & N. 278 ; 30 L. J. Ex. 217 ; affirmed 7 H. N. 954 ; 
 31 L. J. Ex. 363. 
 
 (y) Gould V. Oliver, 4 B. N. C. 134 : MUwarcl v. Hihhert, 3 Q. B. 120 : 
 Wright v. Marioood, 7 Q. B. D. 62 ; 50 L. J. Q. B. 643 : Burton v. English, 
 12 Q. B. D. 218 ; 53 L. J. Q. B. 133. In the United States, this exception 
 in favour of established usage is not allowed ; Arn. 862, 6th ed., citing 
 Cram v. A iken, 13 Maine (1 Shepley), 229 : Lenox v. United Insurance Co., 
 3 Johns. (N. Y.), 178, 179 : Smith v. Wright, 1 Caines, 43 : JJodge v. Bar- 
 tol, 5 Greeuleat, 286. 
 
 [z) Arn. 931 ; 900, 6th ed. 
 
 (a) Benecke, 291. 
 
 (6) Benecke, 294 ; Abb. 504 ; 551, 11th ed. 
 
 M.D. B B
 
 370 GENERAL AVERAGE. 
 
 on the ground that such an act, though morally speaking neces- 
 sary, involves a sufficient exercise of choice and volition to 
 render it voluntary ; and that the owner ought not to be 
 deprived of all recompense, because a greater loss has hap- 
 pened than was perhaps anticipated (f). The measure ot 
 adjustment in this case is the value the ship would have been 
 to the owner, if he could have had her in security at the 
 moment of the loss, and the gross freight which she would have 
 earned {d). 
 Where goods When goods are sold to raise money for the repairs of the 
 
 Lave bceu g^^jp^ ^^xq loss in general falls wholly on the shipowner, and is 
 
 not the subject of contribution ; for the owner of the ship 
 undertakes to have the ship fit to perform her voyage, and any 
 expenses incurred for this purpose must be borne by him (e). 
 The contrary, however, will be the case where they have been 
 sold to effect repairs, which arise out of what was itself a 
 general average loss. In such a case they must be contributed 
 for according to the price they would have fetched at their 
 port of destination, subtracting freight, duty, and landing 
 expenses (/). The same questions as to the different mode of 
 valuation arise in this case, as in that of goods sold by the 
 master, for which the shipowner alone is answerable {g) ; and 
 the same solution seems to be applicable. Mr. A mould has no 
 doubt that goods sold in this manner ought to be paid for 
 whether the ship arrives in safety or not ; and distinguishes 
 the case from that of jettison, on the ground that a debt is 
 contracted by the sale, which is unaffected by the result of the 
 adventure to which the money was appHed {h). 
 
 Where money is raised for the general safety, and not merely 
 
 (c) Columbian Insurance Co. v. Ashhy, 13 Peters, 331 : 3 Kent, Comm. 
 239. ' 
 
 (rf) Ihid. ; Arn. 831 ; 900, 6th ed. 
 
 (e) Powdl V. Gudgeon, 5 M. & S. 431, 437 : Duncan v. Benson. 1 Ex. 
 537 ; affirmed 3 Ex. 644 : Hallett v. Wigram, 9 G. B. 580 : Atkinson v. 
 Stephens, 7 Ex. 567. 
 
 (/) Arn. 931 ; 901, 6th ed. ; 2 PhiU. 129 ; Benecke, 274. 
 
 {g) Ante, p. 303 ; 2 PhiU. 129. 
 
 (A) Arn. 924 ; 798, 4th ed. : Po^cell v. Gudgeon, 5 M. & S. 431. In Mr. 
 Arnould's opinion the result of the authorities appeared to be— 1. That where 
 goods are sold to defray the necessary repairs of the ship, they are paid for 
 though the whole adventure may be finally lost. 2. That where they are 
 sold tor general average purposes, they are not to be contributed for unless 
 something is sared ; Arn. 942, 2nd ed. ; 798. 4th ed. But see Arn. 892, 
 Ota ed., et seqq.
 
 GENERAL AVERAGE. 371 
 
 to enable the shipowner to carry out his own contract, it must 
 also be replaced by general contribution ; with all attendant 
 expenses, such as charges incurred in drawing, interest whether 
 ordinary or marine, and loss in the exchange (i). 
 
 2. The broad principle upon which the property saved is Mode of valu- 
 estimated is, that the value of the property to its owners, as "^s tbe pro- 
 saved by the sacrifice or the expenditure, is the value upon 
 which it ought to contribute towards making good the loss (Jo). 
 As the adjustment is generally made at the port of discharge, 
 this is, in most cases, their net value in the state in which 
 they come into their owners' hands at the port of desti- 
 nation (/). 
 
 "When the ship is sold, the price of course determines her la the case of 
 value (ni). If not, her value is ascertained by taking her value *^^ ^^'P* 
 at starting, and subtracting from it, 1st, the provisions and 
 stores expended ; 2nd. Any partial loss she has sustained up to 
 the time of adjustment (n) ; 3rd. Natural wear and tear of 
 the voyage, unless made good by the repair of a particular 
 damage (o) ; 4th. Perhaps any subsequent general average 
 losses to which she has had to contribute (j>). To this result, 
 however, must be added again the amount paid to the ship as 
 contribution on account of general average loss to herself (q). 
 The sum so found will be the valae at which she is to con- 
 tribute. 
 
 Goods contribute on their actual net value, that is, on their Groods. 
 market price at the port of adjustment, free of all charges for 
 freight, duty, and landing expenses (r). "When part of the goods 
 are sold for money with a discount, and part on credit, by 
 which a higher price is obtained ; the usual discount and 
 guarantee must also be deducted from the latter portion of 
 their price. No deduction, however, is to be made for insurance 
 premium, because it forms part of the prime cost, and its pay- 
 
 (i) Am. 932 ; 901, 6th ed. ; Benecke, 250. 
 (k) Arn. 932 ; 903, 6th ed. 
 (l) Arn. 933 ; 902, 6th ed. 
 
 (m) Arn. 934, n. (k) ; 813 n. (4), 3rd. ed. : BeU v. Smith, 2 Johns. 98. 
 As to shijjs of exceptional character, see ante, p. 352, n. (s). 
 (n) Arn. 935 ; 904, 6th ed. 
 (o) Benecke, 312. 
 ip) Arn. 936, n. (o) ; 904, 6th ed. 
 (q) Arn. 936 ; 905, 6th ed. ; Benecke, 311. 
 {r) Am. 940 ; 907, 6th ed. 
 
 B B 2
 
 372 
 
 GENERAL AVERAGE. 
 
 Freight. 
 
 Example of 
 adjustment. 
 
 ment does not depend upon the future fate of the goods ; nor 
 for commission, because all parties are to be treated alike, 
 whether the goods go into the hands of their proprietors, or of 
 a commission agent (s). 
 
 The shipowner saves by the measure taken for the general 
 benefit, so much of the freight as he finally receives from it ; 
 deducting that part of the wages which remained unpaid at 
 the time of the accident, and deducting also those port and 
 other charges which he would not have paid if the vessel had 
 been lost. This is consequently the amount for which the 
 freight ought to contribute. Wages paid in advance ought not 
 to be deducted ; for these advances cannot be considered as 
 diminishing the freight saved, with which they stand in no 
 connection whatever (t). No contribution is due from freight, 
 when, owing to the length of the voyage or other causes, it is 
 entirely consumed by the wages, for its contributory value is 
 only its excess over wages. On the same principle, when a 
 ship is disabled, and a cargo sent home in a second, the 
 excess of freight for the entire voyage over that paid to 
 the substituted ship, alone forms the contributory value of 
 freight (m). 
 
 The application of these principles will be best shown by 
 an example of an adjustment, borrowed from Arnould on 
 Insurance (;r) : 
 
 VALUATION OF LOSSES. 
 
 Goods of A. Jettisoned . . . £500 
 
 Damage to goods of B. by the 
 jettison 200 
 
 Freight of A.'s goods jetti- 
 soned 100 
 
 Price of new cable, anchor, 
 and mast .... £300 
 
 Deduct J new for old . 100 
 
 200 
 
 Expense of bringing ship off the 
 sands 50 
 
 Pilotage, and expenses of going 
 into and out of port to refit . 100 
 
 Expenses there 25 
 
 Adjusting average .... 4 
 
 Postage 1 
 
 Total amount of losses to be 
 contributed for ... . £1180 
 
 VALUE OF ARTICLES TO CONTRIBUTE. 
 
 Goods of A. jettisoned . . £ 500 
 Net value of goods of B. de- 
 ducting freight and charges 
 Ditto of goods of C. ... 
 
 D. . . . 
 
 E. . . . 
 Value of ship, deducting wear 
 
 and tear, amount of parti- 
 cular average loss, stores 
 and provisions .... 
 Clear freight, deducting wages 
 
 1000 
 
 500 
 
 2000 
 
 500O 
 
 2000 
 800 
 
 Total contributory value . £11,800 
 
 (s) Beneckd, 301. 
 
 (u) Arn. 939 ; 907, 6th ed. 
 
 (x) Arn. 909, 6th ed. 
 
 (t) Benecke, 313. 
 Searle v. Scovell, 4 Johns. Ch. 218.
 
 ft 
 
 GENERAIi AVERAGE. 
 
 Hence each person contributes 10 per cent, of the value of 
 s property, and receives the amount of loss he has suffered. 
 
 C. 
 D. 
 E. 
 
 The shipowners contribute 
 Are to be paid 
 Actually receive 
 
 A. contributes . 
 
 Is to be paid 
 Actually receives 
 
 B. contributes 
 
 Is to be paid 
 Actually receives 
 
 receive nothing and contribute severally 
 
 £280 
 480 
 
 50 
 500 
 
 100 
 200 
 
 £200 
 
 450 
 
 100 
 £750 
 
 £750 
 
 This amount equals the amount to be actually received, and 
 must be paid to the persons entitled in rateable proportions. 
 
 The foregoing observations upon Marine Insurance and 
 Average present only a very meagre sketch of the law of 
 damages arisiug out of those branches. The whole subject, 
 however, has been so exhaustively treated in various well- 
 known books, that I thought it unnecessary to go to any 
 greater length. The reader can easily fill up the outline from 
 the sources indicated. 
 
 373
 
 CHAPTER XII. 
 
 1. Ejectment. i 3. Writ of Quare impedit. 
 
 2. Writ of dower und-e nihil habet. ' 
 
 These actions were, when this chapter was originally 
 written, the only mixed actions that remained. Indeed, 
 ejectment was only such in a single instance. 
 Changes in the ^- The action of ejectment has undergone curious transfor- 
 character cf mations since its birth. Originally, the lessee of land had no 
 ejec men . remedy when ejected, except on the covenant made with him 
 by his landlord. In no case could he regain possession of the 
 land. Then the writ of quare ejccit was invented, by means of 
 which he could recover the term, if ousted by his landlord, or 
 any one claiming under him. It did not extend to strangers, 
 however. Later still, the writ of ejedione firmed was devised, 
 which enabled him to sue any ejector for damages, but he 
 could not be replaced in possession of the soil by means of 
 it. Finally, it became settled, apparently about the time of 
 Henry VII. {a), that restitution of the land could be enforced 
 in this manner. The action of ejectment, while retaining its 
 form as a personal action, became, thenceforward, substantially 
 a real action. The recovery of the soil alone was sought for, 
 and only nominal damages were given (b). By the Common 
 Law Procedure Act, 1852, it lost even the disguise of an action 
 of trespass, and became avowedly a mere issue to try the right 
 to the soil. The judgment was to recover possession of the 
 land, without any mention of damages (c). This constituted 
 it strictly a real action. In one case, however, it became a 
 mixed action, from the possibility of recovering damages. This 
 
 (a) Fitz. N. B. 505 ; 198, 220, 9th ed. 
 (6) See Adams, Eject. 1 — 7. 
 (c) Sched. A. 13—17.
 
 I 
 
 WRIT OF DOWER UNDE NIHIL HABET. 375 
 
 occurred in ejectment by landlord against tenant, it being Mesne profits 
 enacted, that whenever it should appear at the trial that the 
 tenant or his attorney had been served with due notice of trial, 
 the claimant might be permitted, after his right was established, 
 to give evidence of the mesne profits from the expiration of the 
 tenant's interest down to the time of verdict, or some time pre- 
 ceding to be specially mentioned {d). As to damages in respect 
 of mesne profits see post, Ch, 14. 
 
 Now, under the rules and orders in force under the Supreme Tiactice under 
 Court of Judicature Acts, actions for the recovery of land are ^®^^' ^^"^®®- 
 commenced by the same writs as other actions {e) ; and claims 
 may be added in respect of mesne profits or arrears of rent or 
 double value in respect of the premises claimed or any part 
 thereof, and damages for breach of any contract under which 
 the premises or any part thereof are held, or for any wrong or 
 injury to the premises claimed. No other cause of action can, 
 however, be joined unless by leave of the Court or a judge (/). 
 
 2. Both the writ of right of dower and of dower tmde nihil Writ of dower. 
 hahd were preserved by 3 & 4 W. lA^, c. 27, s. 3G ; but the 
 
 right to damages which was given in the latter action by the 
 statute of Merton, 20 Hen. III. c. 1, has now passed away, 
 that statute having been recently repealed by the Statute Law^ 
 Eevision Act, 1881 (//). 
 
 3. Proceedings in quare impedit are now commenced by Qaare impedit. 
 writ of summons in the ordinary form endorsed with notice 
 
 that the plaintiff's claim is in quare impedit, and are subject 
 to the rules and practice of ordinary actions {h). Previous to 
 the Stat. 2 Westm. II. c. 5 {i), the plaintiff in a quare impedit 
 recovered no damages, lest any profit the patron should take 
 should savour of simony ; and this is the cause that the king 
 
 {ch 15 & 16 Vict. c. 7^;, s. 214 ; and they might be recovered, though no 
 notice was taken of them in the writ or issue : Smith v. Tett, 9 Ex. 307. 
 
 (e) Ord. 2, E. 3. 
 
 (/) Ord. 18, II. 2. The writ can be specially indorsed ; 0. 3, R. 6. An 
 action to establish title to land is an action for the recovery of land within 
 this rule : Whetstone v. Bewis, 1 Ch. D. 99 ; 45 L. J. Cli. 49 ; see also Cook 
 V. Endwiarch, 2 Ch. D. Ill ; 45 L. J. Ch. 504. 
 
 {(j) 44 & 45 Vict. c. 59. The cases relating to such damages will be found 
 if required in the earlier editions of this work. For the practice as to actions 
 for assignment and arrears of dower, see 2 Seton on Decrees, 683 ; 2 Daniell's 
 Ch. Pr. 136<. 
 
 {h) See Orders and Rules, Appendix A., Part 3, s. 4. 
 
 (i) 13 Ed. I., c. 5, s. 3.
 
 376 
 
 QUARE IMPEDIT. 
 
 ?tat. 2 Westm. 
 II. c. 5. 
 
 AYhere bishop 
 Las not 
 collated. 
 
 Where bishop 
 Las collated. 
 
 Damages 
 against every 
 disturber. 
 
 in a quare impedit recovers no damages, because he is not 
 within the purview of this act {Ic). 
 
 The above statute enacts, " that from henceforth in writs of 
 quare impedit damages shall be awarded, to wit, if the time of 
 six months shall pass by the disturbance of any person, so 
 that the bishop do collate to the church, and the true patron 
 lose his presentation for that time, damages shall be awarded 
 to two years' value of the church ; and if the time of six 
 months shall not pass, but the presentment be deraigned 
 within the said time, then damages shall be awarded to half a 
 year's value of the church." 
 
 The value of the church, in computing damages in an action 
 of quare impedit, is always to be estimated at what the church 
 might have been let for (/). 
 
 If six months have passed since the church became void, 
 and the bishop have not collated, the plaintiff in an action of 
 quare impedit has an election to pray a writ to the bishop ; in 
 which case, as he does not lose his presentation for that time, 
 he can only recover damages to the amount of half a year's 
 value of the church ; or as the right of collating has accrued 
 to the bishop, he may proceed in the action, in order to recover 
 damages to the amount of two years' value of the church ; but 
 if he elect to do the latter he loses his presentation for that 
 time (m). 
 
 If six months have passed since the church became void, 
 and the bishop have collated, yet if the incumbent be after- 
 wards removed, in consequence of a judgment in an action of 
 qii/ire impedit, damages can only be recovered to the amount 
 of a half year's value of the church ; because the plaintiff does 
 not in this case lose his presentation for that time (ji). And 
 where the plaintiff's clerk had been admitted and inducted, 
 and remained in possession for more than half a year, until he 
 was turned out by a writ of restitution, the Court refused to 
 give full damages {o). 
 
 Damages are recoverable in an action of quare impedit 
 
 [h) 2 Inst. 362. 
 [l) 2 Inst. 363. 
 
 (m) Ibid. : Bishop of Exeter v. Frealce, 1 Lutw. 901 : Holt v. Holland, 
 Lev. 59, contra. 
 (n) 2 Inst. 363. 
 (o) EarLof Pemhrolce\. Bostock, Cro. Car. 174.
 
 QUARE IMPEDIT. 377 
 
 against every disturber of the patron in his right of pre- 
 senting (;;) ; therefore in quare impedil against the patron and 
 incumbent, where the plaintiff has recovered the advowson 
 after the lapse of six months, if the incumbent has counter- 
 pleaded the title of the plaintiff, the two years' value may be 
 recovered against him as well as against the patron {q). 
 
 The words "six months" in the above statute are to be "Sis months " 
 understood to be six calendar months, being clearly equivalent ^'^^ construed. 
 to the half year spoken of in the same clause (r). When judg- 
 ment was given within six months, but, before the writ could 
 be served upon the bishop, that period had expired, upon which 
 he collated by lapse, it was held that only damages for the half 
 year could be recovered (s). . 
 
 But where upon the foundation of a chauntry the composi- Equitable 
 tion was, that if the patron present not within a month the gj^tutf '""^ °* 
 ordinary shall collate ; in a quare impedit, brought for this 
 chauntry, if the month be past, the plaintiff shall recover 
 damages for two years within the equity of the statute, because 
 the patron in such a case loses the presentation, though six 
 months have not elapsed {t). 
 
 When the plaintiff recovered in quare impedit, and there was Where no 
 no other disturbance but the presentation of the king who had ^°*'^^ °^^' 
 revoked it, and no disturbance by the incumbent, the plaintiff 
 was held not entitled to damages (m). But it was said by 
 Newton, J., that a man shall recover damages in quare impedit 
 where he was never disturbed ; and Ashbon, J., laid it down, 
 that if I present and my clerk is inducted, and J. N. brings 
 quare impedit against me for this, and after is nonsuited, I shall 
 have damages {x). 
 
 When the plaintiff brought quare impedit against the bishop, "When two 
 and also against J. T. of the same church, and the bishop con- years value 
 
 ° ' ^ may be 
 
 fessed the disturbance, and J. T. traversed the title of the recovered, 
 plaintiff, which was fouud for the plaintiff ; the plaintiff 
 claimed a writ to the bishop, and two years' value, the six 
 
 {p) 2 Inst. 363. 
 
 \q) 2 Inst. 363. 
 
 (?•) Tullet V. Winfield, 3 Burr. 145,5. 
 
 (s) 2 Inst. 363. 
 
 (t) 2 Inst. 362. 
 
 (m) Br. Dam. pi. 171. 
 
 {x) Br. Quare Impedit, p. 83 ; citing 22 H. YI. 25.
 
 378 QUARE IMPEDIT. 
 
 months having expired. Thorp, J., said, you cannot have the 
 vahie of two years and writ to the bishop ; and because the 
 ordinary cannot have the lapse when he confesses the distur- 
 bance, it was awarded that the plaintiff should have writ to the 
 bishop, and damages of half a year (y). 
 
 {>/) Br. Qu. Imped, pi. 103. See the three last cases cited in 17 Vin. Abr. 
 465—467, ed. 1743.
 
 CHAPTER XIII. 
 
 I. Trover. 
 II. Detinue. 
 III. Trespass to goods. 
 
 IV. Replevin. 
 V. Illegal Distress. 
 
 We now pass from contracts and real actions to the wide 
 region of torts. Here we are at once struck by the fact that 
 damages are no longer an invariable matter of calculation, but 
 in many cases are committed almost entirely to the discretion 
 of the jury. Even here, however, as was remarked before 
 (cmte, p. 44), the jury are never left wholly to their own 
 caprice. They are always to keep certain principles in view, 
 while forming their estimate, and sometimes these principles 
 can be applied with such accuracy as to make their verdict a 
 mere matter of arithmetic. 
 
 Actions of tort comprise ah injuries to property, person, or 
 character. The first class are always capable of strict valua- 
 tion ; the second are so frequently, Init not always ; the third 
 probably never. It will be most convenient to adopt the old 
 rule of method, and proceed from that which is more certain 
 to that which is less so ; and as actions in respect of goods are 
 more frequent than those in respect of land, we shall begin 
 with the former. The names of the old forms of action have 
 been retained, as being the most convenient way of classifying 
 the various sorts of relief that may be sought for. 
 
 I. One of the most ordinary actions for the recovery of goods Damages in 
 was that of trover. The gist of this action is the wrongful con- ^^■^11^^^'^%],^ 
 version of the property to the defendant's own use, and not as conversion. 
 in trespass, the original wrongful taking (a) ; consequently the 
 measure of damages is in general the value of the goods. The 
 
 (a) Bac. Ab. Trover, A.
 
 380 TROVER. 
 
 manner in which tliey were obtained is immaterial. The only 
 
 point of difficulty is in ascertaining the value, where it has 
 
 varied at different times, or where any circumstances prevent 
 
 precise proof. 
 
 Mode of calcu- Where the article has fluctuated in price, it is by no means 
 
 lating value settled in Endand whether it is to be estimated at its value 
 where there ° . i , • mi n ^ 
 
 has been a at the time of conversion, or at any later Lime, ihe vahie ot 
 
 change in the .^ i^ju ^f eschano-e, for instance, is perpetually changing ac- 
 
 price. ^ , •, T T 1 
 
 cording as interest accumulates upon it. In one case, Lord 
 
 Ellenborough directed that interest should only be allowed up 
 to the time of conversion {b) ; bat this decision was subse- 
 quently denied to be law by Abbott, C. J. (c). That was an 
 action of trover for East India Company's warrants for cotton. 
 Evidence was given that at the time of the conversion the 
 cotton was worth Gd. per lb., but at the trial it was worth 
 lO^d. He ruled that the jury were not limited to the former 
 value, saying, " The jury may give the value at the time of 
 the conversion, or at any subsequent time, at their discretion, 
 because the plaintiff might have had a good opportunity of 
 selling the goods if they had not been detained." And this 
 rule is fortified by the analogy of actions for not replacing 
 stock, in which we have seen that the measure of damages, 
 Avherc there has been a rise in price, is not the value at the 
 time it ought to have been delivered, but at the time of 
 trial (d). 
 j^ulg jn III America there is as usual a conflict of law. The high 
 
 America. authority of Kent, J., ranks in support of the doctrine of Lord 
 
 Tenterden. He said, in one case, " The value of the chattel 
 at the time of the conversion is not in all cases the rule of 
 damages in trover. If the thing be of a determinate and fixed 
 value it may be the rule ; but where there is an uncertainty or 
 fluctuation attending the value of the chattel, and it afterwards 
 rises in value, the plaintiff can only be indemnified by giving 
 him the price of it at the time he calls upon the defendant to 
 restore it ; and one of the cases even carries down this value to 
 the time of trial " (i^). On the other hand. Story, J., laid it 
 
 (/>) Mercer v. Jones, 3 Camp. 477. 
 (c) Greening v. ]Vilkinson, 1 G. & P. 625. 
 {d) See ante, p. 184. 
 
 (e) Cortelyou v. Lansing, 2 Caius' Ca., 200 : West v. Wentworth, Cowen, 
 82.
 
 I 
 
 TROVER. 381 
 
 down, " that the true rule is the vahie of the property at the 
 market price at the time of the conversion " (/). And this is 
 the doctrine acted upon in Massachusetts {g). Mr. Sedgwick 
 takes the same view, " unless the plaintiff has been deprived 
 of some particular use of his property, of which the other party 
 was apprised, and whit-h he may be thus said to have directly 
 prevented " {h). 
 
 It is evident that the decisions in Blerccr v. Jones and Damages for 
 Greenincj v. Willdnson, cited above, are not so completely the convei-siou of 
 converse of each other, as that one must necessarily be right change. 
 because the other is wrong. Whatever the rule may be in the 
 case of goods, whose price is changed since the conversion, I 
 conceive that damages in trover for a bill of exchange should 
 always include interest up to the time of verdict, if the bill 
 itself bore interest. There is no real analogy Ijetween the in- 
 crease in value of a bill, from the accumulation of interest upon 
 it, and the increase in value of goods, from a rise in their price. 
 The former increase is merely a compensation for the loss 
 undergone by delay in the payment of the debt Avhich the bill 
 represents. The latter increase is simply a gratuitous and 
 accidental bonus, obtained by the holder of the goods ; conse- 
 quently, if, in trover for goods, damages were fixed at the time 
 of their conversion, although their rightful owner might be 
 deprived of a profit, still it would be a profit which he might 
 never have acquired, and for which he gave no consideration ; 
 which was not, in fact, part of his contract in purchasing the 
 goods. On the other hand, if the same rule were adopted in 
 trover for a bill, the plaintiff would be deprived of all interest 
 on his debt from the time of conversion up to the time of trial ; 
 he would be put in a worse position than he could possibly have 
 been in, had the wrongful act never been committed ; and his 
 loss would be one against which he had expressly contracted 
 when taking the bill, and which must have been contemplated 
 by the party who appropriated it. 
 
 I am not aware of any case directly affirming or denying 
 the authority of Greening v. Wilkinson (/). The question of 
 
 (/) Walt V. Putter, 2 Mason, 77. 
 {g) Kennedii v. Whitivell, 4 Pick. 466. 
 (A) Sedg. Dam. 505 ; 391, Vol. 2, 7th ed. 
 
 (i) Maule, J., is reported to have spoken of it as "hardly consistent with 
 the modern doctrine : " Meid v. Fairbanks, 13 C. 13., at p. 723.
 
 382 
 
 TROVER. 
 
 Damages for 
 couversion of 
 goods whose 
 value had 
 changed. 
 
 damages in trover arose again in a modern case, under the 
 following circumstances. The master of a ship, which was 
 disabled so as to be unable to carry on its cargo, sold it at 
 Bahia. The shipowner tendered the price for which the goods 
 sold, minus general average and other expenses, to their owner 
 who brought trover. The goods had sold very low, and the 
 jury were directed to give as damages, nob the price for which 
 they had sold but the invoice price, and the amount paid for 
 freight. Wilde, C. J., said, " The question for the jury was, 
 what was the amount of damage the plaintiff had sustained by 
 the unauthorised sale of the salt at Bahia. They found that 
 the value of the salt to the plaintiff at the time of the sale was 
 the invoice price, and the freight paid for carriage. I cannot 
 say that they have done wrong. As far as the defendants are 
 concerned it meets the justice of the case, and indeed it hardly 
 amounts to an indemnity to the plaintiff, for he loses the in- 
 terest of his money." Cresswell, J., said, " I do not see how 
 else they could estimate the value of the goods to the shipper 
 than by taking the last price, and adding the expense incurred 
 in getting the goods towards the merchant. What the cargo 
 fetched by a forced sale at Bahia clearly was no fair test. The 
 plaintiff did not want the goods there " {k). The reader, in 
 considering this case will do well to distinguish between the 
 value of goods and their selling price. The two are only 
 identical when the owner is under a necessity to sell ; or, at all 
 events, anxious to do so. In the present instance, the Court 
 evidently Avished to give their value at the time they were sold. 
 But their price at Bahia was no more a criterion of this value, 
 than the price which a carrier could obtain at a roadside public- 
 house for a case of jewels, would be a criterion of their value 
 in an action of trover against him. It does not appear what 
 the value of the goods was at the time of trial, and no point 
 was made to raise the question. The decision seems, however, 
 by implication, to exclude such a measure, and to favour the 
 view taken by Mr. Sedgwick, viz., that the price for which goods 
 might have been sold is a matter of speculative damage, and 
 
 ih) EwhanJc v. Nutting, 7 C B. 797, 809, 811. In Acaios v. Burns, 
 3 Ex. D. 282 ; 47 L. J. Ex. 566, which was a similar case, it was admitted 
 that the selling price — 77^.^was not to be taken as the value of the goods, 
 which was settled by agreement at 100^.
 
 TROVER. 383 
 
 ought not to be allowed for. In another case the action was for 
 conversion of a quantity of logs of timber lying felled in a forest 
 in Burmah. It appeared that the principal or only market for 
 them was in Rangoon, to which it was customary to take them 
 by water. It was held that the damages might properly be 
 taken at what would have been their selling price at Rangoon, 
 deducting the cost of taking them there (/). 
 
 This doctrine seems also to be strongly confirmed by the 
 language of the legislature. The act (w) which allows interest 
 in actions of trover and trespass, states that it is to be given 
 " over and above the value of the goods at the time of the 
 conversion^'' or seizure. This clearly assumes that the conver- 
 sion is the time in reference to which they are to be valued, and 
 not any subsequent period. 
 
 Of course instances might occur in which goods were intended 
 not for mere sale, but for some special purpose, which has been 
 frustrated by their conversion. Loss arising in this manner 
 might, it is apprehended, be recovered as special damage, and 
 ought to be so laid. This point will be the subject of discus- . 
 sion later in the present chapter. 
 
 The same distinction alluded to above, as to whether a plain- Damages vary 
 tiff was, or was not forced to sell, has been relied on as affecting ''^';'^?^'',l'"^ '''^ 
 
 ' ' ° plaintin was 
 
 the damages in a different class of cases. I refer to those in forced to sell 
 which the conversion has been followed by a sale ; and the ^^ °°*' 
 attempt has been to make the selling price conclusive as to the 
 value of the property. 
 
 Where goods have been seized and sold after a bankruptcy . 
 by some person who fails to maintain title to them, if the sale 
 has been hona fide, the trustee is only entitled to the amount 
 produced by it, and not to the full value of the goods. For 
 he was himself bound to sell (n), and in such a case, where the 
 action is against the sheriff, the jury may, if they think fit, 
 deduct from the damage his expenses in selling. For the trustee 
 would, in any case, have had to incur them (p). But if the 
 trustee could have sold by private contract, or if the sales by 
 
 {I) Burmah Trading Corporation v. Misza Mahomed, L. K. 5 I. A. 130, 
 following Morgan v. Powell, 3 Q. B. 278, post, p. 387. 
 
 (m) 3 & 4 W. IV. c. 42, s. 29. 
 
 (w) Whitmore v. Black, 13 M. & W. 507 : Whitehouse v. Atkinson, 3 C. 
 & P. 344. 
 
 (o) Clark v. Nicholson, 6 C. & P. 712 ; 1 C. M. & R. 724, S. C.
 
 384 TROVER. 
 
 the sheriff had taken place in diiferent connties so as to cause 
 unnecessary expense, it would be otherwise {p). On the other 
 hand, where the plaintiff was under no necessity to sell, as 
 where her goods were seized under a fi. fa. against a man 
 falsely supposed to be her husband, she was held entitled to the 
 full value of the goods, and not merely the price for which they 
 sold {q). 
 Damages wlien A curious question has been raised in America, as to the 
 article has value at which an article is to be estimated, which has been 
 form. changed into some new form by its wrongful taker. In New 
 
 York it has been several times ruled, that the whole value of 
 the article in its new form may be recovered ; as for instance, 
 where timber has been converted into boards, wood into coals, 
 black salts into pearl-ashes {r). The doctrine is made to rest 
 on the authority of some old cases. A defendant in trespass 
 pleaded that a third person had entered upon his land, and cut 
 down his trees and made timber of them, and given the timber 
 to the plaintiff. That he had retaken the timber, which was 
 the tresspass complained of. The Court held the plea good, 
 saying, " In all cases in which a thing is taken tortiously and 
 altered in form, if that which remains is the principal part of 
 the substance, so that it may still be identified {n^est le notice 
 perde) ; as, for instance, if a man takes my cloak and makes a 
 doublet of it, I may re-take it. And so if a man takes a 
 piece of cloth and then sews a piece of gold to it, I may still 
 retake it. And if a man takes trees and afterwards makes 
 boards of them, the owner may still retake them, ciuia major 
 pars suhstanticB remanet. But if the trees are planted in the 
 ground, or a house is made of the timber, it is otherwise. 
 QuEere by the reporter as to the house, for it is the principal 
 substance " (s). But it is apprehended that the case is not in 
 point. The right of an owner to retake his own property, 
 though altered in form and increased in value, when he cannot 
 
 (p) Ihid. See Smith v. Baker, L. R. 8 C, P. 350 ; 42 L. J. C. P. 155, 
 where the Court seemed to think that if the trustee in bankruptcy elected to 
 treat the sale as a tort, he would be entitled to recover the full value of the 
 goods, and any damages resulting to the estate from the sale ; but that if he 
 ratified the sale he could only recover the proceeds. 
 
 (g) Glaspole v. Young, 9 B. & C. 696. 
 
 {r) See the cases cited, Sedg. Dam. 508 ; 398, Vol. 2, 7th ed. 
 
 (s) F. Moore, 19 pi. 67 ; and so 5 H. VII. 15 ; 12 H. VIII. 10.
 
 TROVER. 385 
 
 separate what is his own from that which is added to it, rests 
 upon necessity. It by no means follows that a jury, in giving 
 damages, are bound to give the value of the altered chattel 
 instead of that of the original, when the one value could be 
 severed from the other. The reason no longer exists. The 
 doctrine of the Roman law, upon which ours is founded in this 
 respect, goes no further. It states that in such a case, " Si ea 
 species ad priorem et rudem materiam reduci possit, eum videri 
 dominum esse, qui materije dominus fiierlt ; si non possit 
 reduci, eum potius intelligi dominum, qui fecerit " (/). But 
 this merely decides who shall have the property, not what 
 amount of damage shall be received for the alteration. It may 
 be said that if the property of the improved article continues 
 in the original owner, he must be paid for its detention on its 
 full value. But I conceive that this by no means follows. 
 Where a man mixes his own goods with those of another, so 
 as to be undistinguishable, the property in the entire mass vests 
 in the latter (m). But if the former were to carry away the 
 entire mass as soon as he had mixed it, can it be said that the 
 value of all could be recovered in trover ? In short, may not 
 the real principle be this : that the property in the improvement 
 never does, in fact, vest in the original owner ; but that as his 
 property in the subject-matter continues he has a right to have 
 it back either in value or in specie ; in the latter case the 
 improvements must follow, because they cannot be separated. 
 In the former case they need not. 
 
 The only English authority, that I am aware of, which seems Cases in wLich 
 
 to oppose this view, is that of a class of cases in which the J''^"*^^''^^^ ^^y*^ 
 . , , , been severed, 
 
 question has been, as to the mode of valuing minerals wrong- 
 fully severed and carried away. These will be found discussed 
 hereafter (x), but the rulings founded upon them seem to rest 
 upon peculiar principles not applicable to the question now 
 under discussion. 
 
 On the other hand there are two direct decisions, which 
 probably settle the point. The first was an action of trover 
 against a dyer for cloths given to him to be dyed, who claimed 
 to retain them till the price of dyeing other goods was paid. 
 
 (t) 2 Inst. I. 25. 
 
 (u) Poph. 38 : Ward v. Eyre, 2 Bulst. 323. 
 
 (x) Post, p. 386. 
 
 M.D. C C
 
 386 
 
 TROVER. 
 
 Etid V. Fair 
 banks. 
 
 Cases of 
 
 unauthorised 
 
 mininff. 
 
 This was overruled, and the phiintiflf had a verdict, but only 
 for the amount of the goods as they were sent to him, in 
 their white state (y). This of course is not conclusive, as the 
 work was done by the plaintiff's orders, and the defendant had 
 a lien to that extent. A later case, however, goes much 
 farther. Trover was brought for a ship, the property of the 
 plaintiff, which had been in an unfinished state at the time of 
 the conversion, but was afterwards completed and sent to sea 
 by the defendant. The plaintiff" claimed its full value when 
 finished, on the authority of Martm v. Porter (z). The Court 
 of Common Pleas ruled, that the damages were its value at the 
 time of conversion, which might be ascertained by taking its 
 value at the place where it was built, when completed according 
 to contract, and deducting the amount which it would have 
 been necessary to lay out for that purpose after the conversion. 
 Maule, J., said, in the course of the argument, " Although it 
 be true that in trover the owner may recover for the conversion 
 of the improved chattel, it does not follow that he is entitled to 
 recover the improved value as damages. The proper amount of 
 damages is the amouut of pecuniary loss which the plaintiff's 
 have been put to by the defendant's conduct " {a). 
 
 The mode of assessing damages where minerals have been 
 carried away by unauthorised mining, is to some extent anoma- 
 lous, since a different principle of valuation is laid down 
 according to the state of mind of the defendant. Prima, facie, 
 the measure of damages ought to be the loss suffered by the 
 owner, that is, the value to him of the property which he 
 possessed, and of which he has been deprived. Now w^hat he 
 possessed was a mass of coal or iron in the earth, which was ot 
 no use to any one while it remained there. The owner could 
 only utiHze it by carrying it himself to a market, or by allowing 
 some one else to do so. In either case, the value of the mineral 
 would be represented by its price at the pit's mouth, minus all 
 costs of severing and raising it. This is the exact loss to the 
 owner by taking away his minerals without his consent. If 
 the defendant is not allowed to deduct the cost of severing the 
 
 {y) Green v. Farmer, 4 Burr. 2214. So Hyde v. Cookson, 21 Barbour 
 N. Y.), 92. 
 (c) 5 M. & W. 352, post, p. 387. 
 (a) Reid v. Fairbanks, 13 C. B. 692 ; 22 L. J. C. P. 207, S. C.
 
 TEOVER. 387 
 
 minerals, it is evident that the owner benefits by this cost, and 
 is paid for expenditure which he has never incurred. On the 
 other hand, if the defendant is allowed to deduct this outlay, 
 then he is being paid for his own unlawful act. It is just as if 
 a person, sued in trover for furniture, should ask to be allowed 
 for the expense he had gone to in breaking open the plaintiff's 
 house and picking his locks. No doubt the act of severance 
 gave the coal a greater value than it had while buried in the 
 mine. But this act could not be reimbursed in either of the 
 old forms of action. In trespass it was itself the wrong com- 
 plained of, and therefore clearly could not be at the same time 
 a ground of counter-claim. On the other hand, the action of 
 trover is equivalent to the plaintiff saying, " You had my leave 
 to sever the coals for my use, but you then wrongfully appro- 
 priated them to your own use." Here, too, the severance can- 
 not be allowed for, as there w^as no contract to that effect, and 
 the damages must be the value of that property which belonged 
 to the plaintiff the moment before the act complained of, viz., 
 the severed coal. In fact, it is hard to see what other damages 
 could be given in trover. It can only be brought in respect of 
 a chattel, and the value of the thing as a chattel, and not in 
 some previous state when it was a fixture, must be the measure 
 of damages. And accordingly in trover for fixtures which have 
 been wrongfully removed, the plaintiff can only recover their 
 value as chattels, though it may be less than their value was as 
 fixtures (b). The rule should equally apply where it is for the 
 benefit of the plaintiff and not of the wrong-doer. 
 
 This difficulty has been met by establishing a distinction Distinction as 
 between the damages to be awarded, according as the act com- ° '"^ ^*' 
 plained of was committed by a mere wrong-doer, or by a person 
 who acted bonce fide under the belief that the property on which 
 he was mining was his own. The form of action in the first 
 three cases which occurred (c) was trespass, and there it was held 
 that the coal should not be estimated at its value as it lay in the 
 bed, but at its price when it first became a chattel. This price 
 might be ascertained by taking its value at the pit's mouth, 
 
 (6) Clarke v. Ilolford, 2 C. & K. 540. 
 
 (c) Martin v. Porter, 5 M. & W. 352 : Wild v. Holt, 9 M. & W. 672 ; 
 Morja:i V. Powell, 3 Q. B. 278 ; 11 L. J. Q. B. 263. 
 
 c c 2
 
 386 
 
 TROVER. 
 
 Ccsts of and deducting' tne cost of raisinf:^ it, but not the costs incurred 
 
 severance in . , „ t^ n i j^i i j? j i. 
 
 uiining cases. loi the purposc 01 Severance, lu all these cases the deiendant 
 was a contiguous mine-owner. In the two first it seems to 
 have been assumed that he knew, or ought to have known, that 
 he was trespassing. The last case was put upon the simple 
 ground that " the defendant had no right to be reimbursed for 
 his own unlawful act in procuring the coal." The same rule 
 was extended to an action of trover in another case (d), where 
 Parke, B., told the jury, that if there was fi'aud or negligence 
 on the part of the defendant, the}- might give as damages, 
 under the count in trover, the value of the coals at the time 
 they first became chattels, on the principle laid down in JJariin 
 V. Porter ; but that if they thought the defendant acted fairly 
 and honestly, in the full belief that he had a right to do what 
 he did, they might give the fair value of the coals as if the coal- 
 field had been purchased from the plaintiff. This price would 
 apparently be such as would allow the defendant the ordinary 
 rate of profit after allowing for all costs of severance and raising. 
 An actual purchaser clearly would not give more (e). 
 
 The rule as laid down in Woodv. J/ore^roorf, has been accepted 
 by the Equity Courts, though with a leaning in favour of the 
 defendant. "Where, therefore, the mining had been carried on 
 by the defendant under a lond fide and justifiable belief that 
 he was entitled to do so, the Court in two cases directed that 
 he should '• be charged with the fair value of such coal and 
 other minerals, at the same rate as if the mines had been pur- 
 chased by the defendant at the fiiir market value of the 
 district " (/). In another case of a similar kind, the Court 
 awarded to the plaintiff a sum arrived at by taking the price of 
 the coal at the pit's mouth, and deducting all costs of severance 
 and raising {g). It does not seem to have occurred to the 
 judges who decided the last-named cases, that they were award- 
 
 {d) Wood V. Moreivood, 3 Q. B. 4i0, n. See Peruvian Guano Co. v. 
 Dreyfus, [1892] A. C. 16ti ; 60 L. J. Ch. 749, where in a contest between 
 two parlies, each of whom claimed to be entitled to a cargo which had been 
 taken possession of by the defendant, but which was ultimately adjudged to 
 the plaintitf, it was held that the defendant was entitled to repayment of 
 expenses properly incurred by him for freight and landing charges. 
 
 (e) See Attorney-Gen. v. 'Tomlinc. 5 Ch. D. 750, at p. 768, post, p. 390. 
 
 (/) Jegori, v. Vivian, L. R. 6 Ch. 742, 760 ; 40 L. J. Ch. 369 : JJitton v. 
 Woods, L. R. 4 Eq. 432. 
 
 0?) Be United Merihyr Collieries, L. R. 1.5 Eq. 46 : Joh v. rotton, L. R. 
 20 Eq. 84 ; 44 L. J. Ch. 362 : Ashton v. StocTc, 6 Ch. D. 719.
 
 I 
 
 TROVER. 389 
 
 ing a higher rate of damages than had been given in those 
 previously cited. They seem, indeed, to have assumed that 
 the measure was the same. It is plain, however, that it was 
 different. Xo purchaser would give such a price for undug 
 minerals as, with the addition of costs of severance and raising, 
 would be exactly the value of the coal when brought to the 
 surface. Such a price would leave him without any profit on 
 the transaction. In other cases the penal mode of assessing 
 damages laid down in Martin v. Porier was followed. All were 
 trespasses by adjoining owners. In the first it does not appear 
 whether the wrongful character of the act wa«, or was not, 
 known to the trespasser. In the otliers his conduct was clearly 
 fraudulent (Ji). 
 
 In a Scotch case it appeared that the plaintiff, under whose Caseof owr.er 
 land the minerals lav, owned so small a portion (an acre and ^^° cannDt 
 
 • ' i ^ mine. 
 
 half), that he could not have profitably worked the mine him- 
 self, nor could he have disposed of the right to work to any 
 except the adjacent owners, who had carried away his coal 
 under the bond fide belief that it was included in their lease. 
 It was held by the House of Lords that the measure of damages 
 was the value he could ha^•e obtained from the persons who 
 were able to work it, and that this was to be ascertained by 
 taking the royalty paid by the adjacent proprietor for the 
 privilege of mining (/). 
 
 In another case this curious state of things was supposed to Case of tenant 
 exist. The defendant, who was the lord of the manor, was ""''*'! '^ ^'®*° °^^ 
 
 • • • ^ 1 e mining. 
 
 entitled to take certain minerals which lay under the laud of 
 the copyholder, but not without his permission. The copy- 
 holder had no right to the minerals other than that of forbid- 
 ding their being taken. The lord of the manor carried them 
 away without permission. In an action by the copyholder. 
 Fry, J., held that the plaintiff had an absolute veto on the 
 digging of the minerals, and that the measure of damages for 
 digging without his jiermission was " the net returns from the 
 sale of the minerals, less such a sum of money by way of profit 
 
 (A) Lhjnvi v. Brogden, 11 Eq. 188 ; 40 L. J. Ch. 46 : Fothergill v. 
 Phillips, L. R. 6 Ch. 770 : Ta//Ior v. Mostt/n, 33 Ch. D. 226. See as to 
 interest on amount of decree : Phillips v. IJomfray, 44 Ch. D. 694, [1892] 
 1 Ch. 465 ; 61 L. J. Ch. 210 ; ptr Kay, J., Tucker v. Llnjcr, 21 Ch. D., at 
 p. 29. 
 
 (i) lAviwjSton v. Eaicj/ards Coal Co., 5 App. Cas. 25.
 
 390 
 
 TROVER. 
 
 Special 
 damage. 
 
 Where goods 
 deposited with 
 defendant 
 under void 
 contract. 
 
 Presumption 
 as to value in 
 certain cases. 
 
 as would induce a third person to undertake the enterprise." 
 On appeal the damages were held not excessive, because the 
 Court found that the tenant was not a copyholder but a free- 
 holder, who was himself entitled to the minerals. Assuming 
 that he had only the rights of a copyholder, Jessel, M. E,., was 
 of opinion that the decision was wrong, since it would give the 
 whole interest of the landlord to the copyholder who had the 
 veto. He admitted that the case was one in which vindictive 
 damages might be awarded, but he was of opinion that the 
 proper direction to a jury would have been to give the actual 
 damage done j>Ius a reasonable sum by reason of the way in 
 which the trespass was committed (Ji:). 
 
 In all cases suclj as those under discussion, in addition to 
 the value of the minerals, the plaintiff is entitled to recover 
 damages for all injury done to the property itself, and to com- 
 pensation for the exercise of passage, as way-leave (/). 
 
 Where the plaintiff has deposited or transferred goods to the 
 defendant on a contract, which is void ab initio, e.g., under the 
 old law of usury, he may recover them in trover (m). And 
 in such a case the full value of the goods must be given as 
 damages, without deducting the amount actually paid to the 
 plaintiff in pursuance of such contract («). 
 
 When the defendant in trover will not produce the article, 
 it will be presumed against him to be of the greatest value that 
 an article of that species can be(o). And on the same principle, 
 where part of a diamond necklace, which had been lost by the 
 plaintiff, was traced into the possession of the defendant who 
 could not account satisfactorily for having it, and did not swear 
 positively that the whole set had not come into his hands, the 
 jury were directed to presume that the whole necklace had been 
 in his custody, and to give damages accordingly {p). In all 
 other cases, however, the plaintiff must strictly prove the 
 amount taken, and its value, even though the conversion be 
 
 (k) Attorney-Gen. v. Tomline, 5 Ch. D. 750 ; 46 L. J. Ch. 654 ; 15 Ch. D. 
 150, at p. 153. 
 
 {I) Morgan v. Powell, Jcgon v. Vivian, Llynnvi v. Brogden, Livingstone 
 y. Eawyards, Attorney-Gen. v. Tumllne, ubi sujh 
 
 (m) Trcgoning v. Attenborough, 7 Bing. 97 : Hely v. Hicks, 3 Ir. L. R. 
 
 (n) Eargreaves v. Hutchinson, 2 Ad. & Ell. 12. 
 
 (o) Armory v. Delamirie, 1 Stra. 504 ; 1 Sm. L. Ca. 385, 9th ed. 
 
 (p) Alortimer v. Cradock, 12 L. J. C. P. 166.
 
 TROVER. 391 
 
 admitted by the pleadings. Otherwise there would be no 
 evidence of damage more than nominal (q). 
 
 Where goods are sold under a distress, the appraised value Value when 
 is never conclusive as to their worth, unless the jury are 
 satisfied that the best means were taken to ascertain the 
 value ; and the fact that they sold for no more makes no 
 difference (r). 
 
 In trover for title deeds, the jury give the full value of Trover for 
 the estate to which they belong by way of damages, which, *^*^® '^^^^^• 
 however, are generally reduced to 40s. on the deeds being given 
 up (.s). 
 
 In actions for the recovery of bills, the amount of the bill is r>iils and 
 also the measure of damages (t). It is no ground for reducing '^°^'^^' 
 the damages that after the conversion the defendant has by his 
 own act lessened the value of the bill, by procuring part of it 
 to be paid (w). But in such a case, if he brought into Court 
 the bill, and the money he had received in part payment of 
 it, the verdict might be entered for a nominal sum (.r). In 
 another case the bills in question had been issued by the 
 government of Peru, at the interposition of the British govern- 
 ment, to the plaintiff as compensation for detention of his 
 ship, and were retained by the defendant, and a verdict found 
 against him for the full value of the bills. The bills at the 
 place where they were payable were at a discount of 60 to 70 
 per cent, and were of no value at all in England, where the 
 action was brought. The plaintiff by affidavits showed, that 
 the bills would in his hands be worth the full amount they 
 represented, being backed by the weight of the British govern- 
 ment. The Court directed that they should be taken as worth 
 
 (q) Cool- V. Hartle, 8 C. & P. 568. 
 
 (r) Clarke v. Holford, 2 C. & K. 504, and see ante, p. 383. 
 
 (s) Loosemore v. Radford, 9 M. & W. 659 : Coombe v. Sansom, 1 Dowl. & 
 Ry. 201. 
 
 (t) Numerous decisions in America have settled what seems to be the true 
 rule, that the measure of damages is 2}r{md facie the amount of the bill or 
 note, but the insolvency of the parties liable thereon, payment in whole or in 
 part, or any other facts tending directly to reduce its value, may be shown in 
 mitigation of damages. See 2 Parsons on Contracts, 471 : Potter v. Mer- 
 chants' Bank, 28 N. Y. 641 : Walrod v. Ball, 9 Barb. (N. Y.), 271 ; Sedg. 
 Dam., vol. 2, p. 403, 7th ed. 
 
 (m) Alsayer v. Close, 10 M. & W. 570. As to interest, see ante, 381, 
 and post, p. 393. 
 
 {x) 10 M. k W. 584.
 
 392 
 
 TROVEK. 
 
 Damages vihen 
 security is 
 void. 
 
 By tbe act of 
 the defendant. 
 
 the full amount of dollars they represented, and that, as to the 
 value of the dollars, the plaintiff" should be in the same situa- 
 tion as if the bills were drawn on a house of unquestionable 
 solidity in Lima, the place of payment. The net amount reco- 
 verable was to be the value of such a bill in London, taking 
 into account the rate of exchange resulting from the expense 
 and risk of transfer between Lima and London (y). 
 
 If the security is void at the time of the conversion, and not 
 by any act of the defendant.', only nominal damages can be 
 recovered. This was held in two curious cases where in fact the 
 security, though void, turned out to be of value. A bankrupt 
 delivered a cheque on his bankers after bankruptcy to a creditor, 
 who obtained the money on it. The assignees brought trover 
 for the cheque. The jury gave the full amount of the cheque, 
 and their verdict was set aside. Mansfield, C..J., said, " The 
 plaintiffs proceed on the ground that the cheque is worth 
 nothing, being drawn without their authority ; how then can 
 they recover on it the sum of 300/. ? " (z). In the second case, 
 the plaintiff had assigned a policy of insurance to the defendant, 
 as security for the debt. After the assignment it turned out 
 that the pohcy was utterly void. This was admitted by both 
 plaintiff* and defendant. The company, however, paid the de- 
 i'endant a certain sum upon it, merely as a gratuity, upon his 
 giving it up to be cancelled. In an action of trover it was held 
 that the full amount of the policy could not be recovered, 
 because it was confessedly bad ; nor the sum paid to the de- 
 fendant, for this was merely a gratuity. But that as he had 
 retained the actual document after his right to do so had ceased, 
 the plaintiff" was entitled to a verdict with nominal damages for 
 the parchment {a). 
 
 But where the worthlessness of the document arises from 
 the defendant's own wrongful act in mutilating it, as where 
 the action was for an unstamped guarantie for " half the 
 amount of certain fixtures, say about 100/.," from which the 
 defendant had erased his signature, the jury were held to have 
 been justified in giving the full 100/. as damages. And it was 
 no misdirection that they were not told to find in the alterna- 
 
 (y) DeUr/al v. Naylor, 7 Bing. 460. 
 
 (2) Mathew v. Shericell, '2 Taunt. 439. 
 
 (a) Wills V. Wells, 2 Moore, 247 ; 8 Taunt. 264, S. C.
 
 TEOVER. 393 
 
 tive, that the damages should be nominal on the memorandum 
 being given up, because the defendant's own act had prevented 
 such a course being just (b). 
 
 The same doctrine of estoppel was carried to a remarkable Damages by 
 extent in one instance, when the plaintiff was allowed to re- ^^ '^P'^^ ' 
 cover in respect of a chattel which had never existed. An 
 agent had been employed to effect an insurance, and had 
 asserted that he had done so, which was not the fact. The 
 principal brought trover for the policy, Lord Mansfield refused 
 to allow the defendant to contradict his own representation, and 
 held that the same damages should be given as if the policy has 
 been really effected (c). " I shall consider the defendant," he 
 said, " as the actual insurer, and therefore the plaintiff must 
 prove his interest and loss." 
 
 The jury may, if they think fit, give damages in the nature Interes . 
 of interest over and above the value of the goods at the time 
 of the conversion (<?). Even independently of this statute 
 they were allowed to give interest on a bill of exchange (e), 
 probably on the principle that as a bill by its nature bears 
 interest, its value must be compounded of the amount for 
 which it is given, and the interest of which the plaintiff is de- 
 prived by its conversion. 
 
 Special damage may be recovered in this form of action if Special 
 laid, but not otherwise. In trover for carpenter's tools, where '^"^^^e. 
 the declaration stated that the plaintiff had been prevented 
 working at his trade, 10/. above the value of the articles was 
 given (/). And similarly, in trover for a pony, where the 
 damage was that the plaintiff had been forced to hire other 
 horses instead (^). And in a later case, Cresswell, J., said 
 that consequential damage might arise where a party whose 
 property had been converted was under a contract to sell 
 it (Ji). The special damage must, however, be the necessary 
 
 (6) M'Leod V. M'Gkie, 2 Sco. N. R. 605 ; 2 M. & (i. 326. 
 
 (c) Harding v. Carter, Park. Ins. 4. 
 
 (d) 3 & 4 W. IV. c. 42, s. 29. 
 
 (e) Paine v. Pritchard, 2 C. & P. 558. See as to the time up to which 
 interest is allowed, ante, p. 381. 
 
 (/) Bodley v. Reynolds, 8 Q. B. 779. 
 
 {y) Davis v. Oswtll, 7 C. & P. 804. 
 
 (>0 Held V. Fairbanks, 13 C. B. 692 ; 22 L. J. C. P. 206, 208. See also 
 Wood V. Bell, 5 E. & B. 772 ; 25 L. J. Q. B. 148, in Q. B. Recently a 
 plaintifl" who had bought champagne, which could not be got elsewhere, at
 
 394 TROVER. 
 
 Remote conseqiience of the defendant's aet, and must be the immediate, 
 
 damage. ^^^^ ^j^^ remote, result of it. The first of these requisites 
 
 may be illustrated by a case which arose between the sheriff 
 and assignees in banki-uptcy. The sheriff seized the bankrupt's 
 goods under a fi. fa., and placed his man in possession upon 
 the premises. Subsequently the messenger under the commis- 
 sion took charge of the goods, but the sheriff's officer still 
 remained. Later still a formal demand Avas made upon the 
 sheriff, and finally the goods v/ere giyen up to the assignees and 
 accepted unconditionally. They sued in trover for the conver- 
 sion, without laying special damage ; and sought to recover the 
 rent of the premises for the quarter, during which the goods 
 had been lying there in charge of the sheriff, and for the 
 expenses of the messenger. Part of the rent had accrued before 
 their messenger had entered, and before any demand of the 
 goods. Xo proof was ofiered that the rent could be apportioned, 
 or that they could have given up the premises, even if the 
 sheriff had not been there. It was held that these sums could 
 not be recovered at all, as they had not been specially laid ; 
 and Tindal, C. J., doubted whether they could in any way fall 
 within the remedy of an action of trover, not being a damage 
 necessarily consequent on the wrongful conversion of the 
 goods («'). As to remoteness of damage, I may refer to a 
 case already cited {Tc), where, in trover for a ship, the Court 
 decided that the plaintiff could not claim as damages the 
 freight he would have earned on the next voyage ; and 
 Maule, J., said that must be included in the value of the ship 
 
 fourteen shillings per dozen, and had contracted to sell it at twenty-four shil- 
 lings to a person about to leave England immediately, recovered as damages 
 in trover against one who wrongfully converted the wine, the price at which 
 he had contracted to sell it, although the defendant had no notice of the 
 sale. The Court of Queen's Bench drew a distinction between special damage 
 and special value, and said that they were inclined to think that to enable a 
 plaintiff to recover special damage which did not form part of the actual 
 present value of the goods, as in the case of withholding the tools of a man's 
 trade [Bodlcy v. Ileiinolds, ante, p. 393), the defendant must have some notice 
 of the inconvenience likely to le occasioned, but no notice could be necessary 
 where a special value was attached by special circumstances to the article con- 
 verted. Notice could not affect that value, though it might affect the conduct 
 of the wrong-doer: France v. Gaudet, L. 11. 6 Q. B. 199 ; 40 L. J. Q. B. 
 121. 
 
 (i) Afoon v. Haphad, 2 Bing. N. C. 310, 315. 
 
 (k) Reid v. Fairbanks, ubi sup.
 
 TROVER. 
 
 396 
 
 itself. People would not pay for a ship that could not earn 
 
 freight. 
 
 Where an action shall have been brought on account of the Action for 
 
 seizure of any goods, seized as forfeited under any Act relating the'JJustomg' 
 
 to the Customs, and a verdict given against the defendant ; Act. 
 
 if the judge shall certify that there was a probable cause for the 
 
 seizure, the plaintiff shall only be entitled to 2d. damages, and 
 
 to no costs of suit {I). 
 
 Havinsz pointed out the principal rules as to the measure of Mitigation of 
 ...,,, • 1 J. damages, 
 
 damages in this action, it will be necessary to examine what 
 
 circumstances will reduce thein. One of the principal of these 
 arises out of a partial title. 
 
 Want of title must always be specially pleaded, and no Want of title. 
 evidence can be given under the general issue, even in mitiga- 
 tion of damages, to show that the property really belonged to 
 another person (?»). Where there is a proper plea, however, 
 anything which goes to diminish the extent of the plaintiff's 
 interest will go in reduction of the verdict ; as, for instance, 
 proof that the parties named in the plaintiff's lease as lessors 
 had not all signed it {n) ; or that the plaintiff had only a share 
 in the chattel sued for, in Avhich case he can only recover the 
 amount of his share (o). And so where the plaintiff was merely 
 nominal owner of the goods, and had become so to defeat the 
 creditors of his brother, the real owner ; Erie, J., being of 
 opinion that the whole arrangement was a mere scheme to 
 baffle justice, directed the jury to take, as the measure of 
 damages, the plaintiff's real and bona fide interest in the goods 
 in question, and not their full value ; upon which a verdict of 
 Id. was returned (j)). The same view was taken in another 
 case arising out of different circumstances. The plaintiff had 
 assigned his goods to the defendant to secure a debt, subject to 
 a proviso that they should remain in the plaintiff's possession 
 till default of payment, or till a particular notice was given by 
 the defendant. The defendant seized the goods before either 
 
 [1) The Customs Consolidation Act, 1876, 39 & 40 Vict. c. 36, s. 267. 
 
 (vi) Finch V. Blount, 7 C. & P. 478 : Jones v. Davies, 6 Ex. 663. 
 
 (n) Taylor v. Parry, 1 M. & Gr. 604. 
 
 (o) Nelthorpe Y -Dorrlngton, 2 Lev. 113: Dockwray y. Dickenson, Skinn. 
 640 : Addison v. Overend, 6 T. R. 766 : Sedgivorth v. Overend, 7 T. R. 279 : 
 Bloxam v. Hubbard, 5 East, 407 : Johnson v. Stear, 15 C. B. N. S. at p. 
 337 ; 33 L. J. C. P. at p. 133, per Williams, J. 
 
 {p) Cameron v. Wynch, 2 (J. ct K. 264.
 
 39G TROVER. 
 
 of these conditions was complied witli. It was held that the 
 plaintiff might sue him, but that the value of the goods, as 
 betweeen the parties, was not the proper measure of damages. 
 The plaintiff could only recover an amount proportioned to his 
 interest in them at the time of the taking (q). This was an 
 action of trespass, but the Court said that trover would equally 
 have lain, and the principle as to damages would clearly not be 
 affected. 
 Johnson V. ^^oi'^ recently the assignee of a bankrupt brought trover 
 
 Stear. for brandies, the dock warrant for which had been deposited 
 
 by the bankrupt with the defendant as security for a loan, to 
 be repaid on the 29th of January, or, in default, the brandies 
 to be forfeited. On the 28th, after the bankruptcy, the defen- 
 dant agreed for the sale of the brandies, and on the 29th he 
 delivered the dock warrant to the purchaser, who took posses- 
 sion on the 30th. This was held to be a wrongful conversion 
 by the defendant ; but as the value of the brandies did not 
 exceed the amount of the loan, the majority of the Court of 
 Common Pleas were of opinion that the plaintiff could recover 
 only nominal damages. They considered that the wrongful 
 act of the pawnee did not annihilate the contract between the 
 parties, nor the interest" of the pawnee in the goods under the 
 contract ; that if the plaintiff's action had been for breach of 
 contract in not keeping the pledge till the given day, the com- 
 pensation to which he would have been entitled would have 
 been a nominal sum only ; and that although the plaintift"s 
 action was in name for wrongful conversion, yet in substance 
 the cause of action was the same, and the change in the form 
 of pleading ought not to affect the amount of compensation. 
 Therefore the damages were to be measured by the loss really 
 sustained, and in measuring them the interest of the defendant 
 in the pledge at the time of the conversion was to be taken 
 into the account (r). "Williams, J., dissented on the ground 
 
 iq) Bricrly v. Kendall, 17 Q. B. 937 ; 21 L. J. Q. B. 161. So Toms v. 
 Wilson, 4 B. & S. 455 ; 32 L. J. Q. B. 382, in Ex. Ch. ; and see Massey v. 
 Sladen, L. R. 4 Ex. 13; iiS L. J. Ex. 34, where substantial damages were 
 awarded under somewhat similar circumstances, apparently ou account of the 
 mode of seizure ; followed in this respect in Mtore v. Shelley, 8 App. Cas. 
 285, p. 294. 
 
 (r) Johnson v. Stcar, 15 C. B. N. S. 330 ; 33 L. J. C. P. 130. This case 
 was much discussed in Donald v. Siickling, L. 11. 1 Q. B. 585 ; 35 L. J. Q. B. 
 232 : Mulimer v. Florence, 3 Q. B. D. 484, pp. 490, 493 ; 47 L. J. Q. B.
 
 TROVER. 
 
 397 
 
 that the defendant's lien was annihilated by his wrong-fallj 
 parting with the goods, and thereupon the owner's right to 
 possession revived, and he was entitled to recover the fall value 
 as damages in an action of trover. The judgment of the Court 
 was, however, adopted by the Court of Exchequer Chamber in 
 a subsequent case (s). Where the very act by which the holder 
 of a lien attempts to enforce it puts an end to the lien, his 
 retention of the property becomes unlawful, and tall damages 
 should be awarded in an action for its recovery. For instance, 
 where an innkeeper sold horses on which he had a lien, it was 
 held that the sale being wrongful, amounted to a waiver of the 
 lien. Hence the owner's right of possession at once arose, and, 
 being defeated by the sale, he was entitled to the full value of 
 the horses, and not merely to their value diminished by the 
 debt (/). 
 
 Exactly the same rale applies where the plaintiff is not the Damages in 
 actual owner, but only a bailee, or person holding under a lien. ]j.Ji^^ ^(.^ 
 Where goods are taken from under his control, either by a 
 stranger, or by the general owner, whose right to the posses- 
 sion has not been restored, he may sue in trover or trespass 
 for the injury sustained by himself. His damages against the 
 stranger will be the entire value of the thing if he is liable over 
 to the owner ; but in an action against the owner he can only 
 recover the amount of his interest in it («). In a case where 
 a horse, which had been handed over to an auctioneer for sale, 
 was damaged by the wrongful act of a stranger, for which the 
 auctioneer was not liable, it was held that the auctioneer, not 
 being liable over to the owner, could not recover damages (v). 
 The proper person to sue for damages was the owner. And so Damages in 
 if an unpaid vendor of goods, which are left in his custody by unpaid vendor. 
 
 700 : Johnson v. Lane. A Yorks. Ry. Co., 3 C. P. D. 499, at p. 509 ; but 
 mainly upon the question, wlietlier the parting with the goods by the pledgee 
 put an end to the contract of pledge so as to entitle the pledgor to possession, 
 and the opinion of Williams, J. , was preferred. 
 
 (s) HalUday v. Holjate, L. R. 3 Ex. 299 ; 37 L. J. Ex. 174. 
 
 {t'l Mulliner v. Florence, ubi supra. 
 
 (m) Heydon's Case, 13 Rep. 69 ; Stor. Bailm. s. 352 ; per Crompton, J., 
 Waters v. Monarch Assurance Co., 25 L. J. Q. B. 102, 136 : Parish v. 
 Wheeler, 22 N. Y., 494 : Swire v. Leach, 18 C. B. N. S. 479 ; 34 L. J. 
 C. P. 150 : White v. Webb, 15 Conn. 302 : Ullman v. Barnard, 73 Mass. 
 554. 
 
 {v) Claridrjey. South Staffordshire Tramway Co., [1892] 1 Q. B. 422; 
 61 L. J. Q. B. 503.
 
 398 
 
 TROVER. 
 
 Cost of keep of 
 an animal. 
 
 Reversioner. 
 
 Right of action 
 against third 
 parties. 
 
 Re-delivery of 
 l^roperty. 
 
 the vendee, wrongfully and without any default on the part of 
 the vendee, sells and delivers them to another person, as he 
 thereby loses his right to sue the first vendee for the price, the 
 latter will not be entitled to recover fi-om him in trover the full 
 value of the goods, but only that amount diminished by what 
 he would have had to pay the vendor for them (x). Against a 
 wronff-doer not claiming under the vendor he would have been 
 entitled to the full value (y). 
 
 "Where the proprietor of land seized an animal, as damage 
 feasant, under circumstances which made the seizure wrongful, 
 and after feeding it for several days sold it, the owner was held 
 entitled to the fuU value of the animal in trover, without any 
 deduction for the feeding (5). 
 
 Where a chattel has been let to hire, the owner cannot sue 
 in trover for it, because he has parted with the right to the 
 possession. He may, however, maintain an action against a 
 third person for a permanent injury to it (a). 
 
 It was stated oMier in one case, that where goods were con- 
 verted under circumstances which give the plaintiff a right of 
 suing different parties, the jury might reasonably give small 
 damages against one, on the ground that an action would lie 
 against the other {h). This seems a curious reason for miti- 
 gating damages. I have noticed the dictum in a previous 
 chapter (c), and ventured, with great deference, to offer some 
 objections to it. 
 
 If the defendant, after conversion, re-deliver the goods, an 
 action will still lie for the original conversion, and the re- 
 delivery will only go in mitigation of damages (d). But the 
 jury need not give more than nominal damages, even where 
 
 (x) CMnery v. VictU, 5 H. & N. 288 ; 29 L. J. Ex. 180. See post, p. 415. 
 Where a sale was conditional, and part of the piirchase-money was paid, and 
 the chattel was handed over to the vendee, the vendor was held, in America, 
 entitled, on the condition not being performed, to recover in trover the full 
 value, without any deduction for the pai-tial payment : Brmun v. Haynes, 52 
 Maine, 578 : Angier v. Taunton Paper Co., 67 Mass. 621. 
 
 (?/) Turner v. Hardcastle, 11 C. B. N. S. 683 ; 31 L. J. C. P. 193. 
 
 (•:) Wormer v. Bigc/s, 2 C. & K. 31. See 17 & 18 Vict. c. 60, s. 1, as to 
 the right to sell a distress damage feat^ant for the expenses of its keep. 
 
 (a) Afears v. L. <£• S. W. Ry. Co., 11 C. B. N. S. 850 ; 31 L. J. C. P. 220. 
 
 (6) Per Bayley, J., Morris v. Eohinsoii, 3 B. &, C. 205 ; and^o- Holrovd, 
 J., ibid., 206. 
 
 (c) Ante, p. 111. 
 
 {d) Bull, N. P. 46.
 
 TROVER. 399 
 
 the re-clelivery has been after action brought ; unless actual 
 damage has been occasioned either by an injury to the pro- 
 perty converted, or by the actual or necessary consequences 
 of the conversion ; as where money has been necessarily paid 
 to recover the chattel (e). In trover against a carrier, it ap- 
 peared that he had oflFered to deliver the goods two days after 
 they ought to have been delivered, and that the plaintiffs, 
 thinking they had incurred loss by the delay, refused to receive 
 them, and sued in this form. Defendant paid the price of the 
 goods and the costs into Court, and pleaded no damage ultra, 
 which the jury found for him. A motion for new trial was 
 made on the ground, that in any case the plaintiff was entitled 
 beyond the value of the goods to nominal damages for the con- 
 version, but the rule was refused. Lord Abinger assented to 
 the principle laid down, but said the jury were not bound by 
 the cost price. And so, non constat but the sum paid in did, in 
 their estimation, include damages (/). 
 
 Applying the goods in a manner which may be for the Disposal of 
 owner's benefit, but is not in accordance with his wishes, is benefit of °^ 
 not a re-delivery going in mitigation of damages. Therefore owner, 
 when the defendant had obtained a judgment against the 
 plaintiff and, having goods of the plaintiff in his possession 
 wrongfully refused to give them up, and then issued execution 
 on his judgment, and seized and sold the goods, and applied 
 the proceeds in satisfaction of the debt, it was held that the 
 plaintiff was entitled in trover to recover the full value of the 
 goods, and that the jury ought not to take into consideration 
 in mitigation of damages the fact that the goods had been sub- 
 sequently applied in satisfaction of the plaintiff's debt to the 
 defendant (^). 
 
 When the defendant is willing to deliver up the chattels. Verdict by 
 the verdict is generally entered by consent at the value of the 
 thing, but only 1.^. to be levied upon its being given up (h). 
 But this is merely matter of arrangement between the parties ; 
 
 (c) Moon V. Raphael, 2 Bing. N. G. 315 : per Tindal, C. J. See Jliort v. 
 L. <£• N. W. Faj. Co., 4 Ex. D. 188 ; 48 L.J. Ex. 545, where the defendants 
 committed a technical conversion by parting with plaintiflf's goods in anticipa- 
 tion of a delivery order which was afterwards given. 
 
 (/) Evans v. Leivis. 3 Dowl. 820. 
 
 (g) Edmondson v. Nuttall, 17 C B. N. S. 280 ; 34 L. .J. C. P. 102. 
 
 (A) Wintle v. Budge, 5 Jur. 274.
 
 400 
 
 TROVER. 
 
 Reducing 
 damages after 
 verdict. 
 
 Stayin 
 ceedings 
 
 pro- 
 
 and if the subject-matter has been so injured as that justice 
 would not be effected by returning it, the verdict will be abso- 
 lute for the entire value (?'). In a case where equity would 
 relieve the defendant against the verdict, as where, in trover 
 for title deeds, the whole value of tlie estate has been given, 
 the Court will, with the plaintiff's consent, order satisfaction 
 to be entered upon the defendant's returning the deeds, paying 
 full costs of the action as between attorney and client, and all 
 other proceedings caused by his own wrongful act, and submit- 
 ting to such other terms as would be a full indemnity to the 
 plaintiff (h). 
 
 Even after trial and verdict, the Court will exercise its 
 equitable power in reducing the damages, when any subse- 
 (juent matter has rendered it unjust that the whole amount 
 should be recovered. A verdict in trover for goods was ob- 
 tained against a party. After verdict, and before the goods 
 were removed from the house in which they were, and for the 
 rent of which the plaintiff was liable, they were distrained on 
 by the landlord ; Tindal, C. J., said, " The case falls within 
 a principle well-known and recognised in "Westminster Hall. 
 The plaintiff has recovered damages in action of tort ; the 
 defendant has in effect satisfied them pro tanto, and he comes 
 to us to allow this amount towards satisfying the judgment. 
 The parties are in the same situation as if the defendant had 
 gone to the plaintiff after the verdict, and paid him the sum 
 distrained for " (/). 
 
 In some cases the Court will stay proceedings without going 
 to trial, upon delivery of the thing claimed and payment of 
 costs. The rule is thus laid down in Fisher v. Prince (m) " that 
 where trover is brought for a specific chattel, of an ascertained 
 quantity and quahty, and unattended with any circumstances 
 that can enhance the damages above the real value, but that 
 its real and ascertained value must be the sole measure of the 
 damage, there the specific thing demanded may be brought 
 into Court. But where there is an uncertainty either as to 
 the quantity or quality of the thing demanded, or there is any 
 
 (i) M'Leod V. M'GUe, 2 Sco. N. R. 605 ; 2 M. & G. 326. 
 {k) Coom.be v. Sansom, 1 Dow. & Ry. 201. 
 (I) Pleven V. Ilcnshall, 10 Bing. 2i. 
 (m) 3 Burr. 1364.
 
 TROVER. 401 
 
 tort accompanying it that may enliance the damage above the 
 real vakie of the thing-, and there is no rule whereby to estimate 
 the additional value, there it shall not be brought in " (n). In 
 one case of trover for a horse the Court refused a rule to stay 
 proceedings on delivering him up with costs, though the appli- 
 cation was made on an affidavit that his condition was im- 
 proved ; and they said Fisher v. Prince was no authority for 
 the rule asked (o). Probably the plaintiff sought damages for 
 the detention beyond the mere value of the animal. But in 
 such a case, as where the action was for a promissory note, said 
 to be dishonoured, the Court will only allow the plaintiff to 
 proceed for actual damage, but not for mere nominal damage 
 for its detention {p). 
 
 Even where there are several things claimed, the Court will Staying pro- 
 make a rule as to any one of them, if the circumstances some'aSiclef 
 relating to it come within the principle above stated. The where the 
 terms of the rule are, that on delivering up the articles in 33'^™^^*°'' 
 question and paying costs of the cause and the appearance up 
 to that time, the proceeding shall be stayed, if the plaintiff 
 win accept of such a discharge of the action. If not, that the 
 articles delivered up shall be struck out of the declaration, and 
 the plaintiff be subject to costs unless he shall obtain a verdict 
 for the remainder of the goods claimed, or more than nominal 
 damages for the detention of those given up {(i). 
 
 Substantial damages will be given for the detention of an Damages for 
 article which has fallen in value between the time it was taken 
 and the time it was returned. The action was detinue for 
 railway scrip, which was delivered up under an order in the 
 above terms. The plaintiff proceeded to trial, and proved that 
 at the time of demand the scrip-certificates were worth 3/. 55. 
 each, but only ll. at the time of the delivery. The judge 
 directed the jury that the true measure of damage was the loss 
 the plaintiff sustained by not having the shares when de- 
 manded ; and that they might, if they pleased, measure that 
 loss by the difference between the price at the time of the 
 
 (») And see Whitten v. Fuller, 2 W. Bl. 902 : Tucker v. Wrlyht, 3 Bing. 
 601 : Gibson v. Uumplircy, 1 C. & M. 544. 
 
 (o) Makinson v. EawUnson, 9 Price, 460. 
 
 Ip) Moss V. Thivaitc, 1 Tidd. Prac, 9th ed., 545. 
 
 {q) Brunsdon v. Austin, 1 Tidd. Prac. 9th ed., 545 : Eaiic v. Uolderness, 
 4 Bing. 462 : Peacock v. Kichols, 8 Dowl. 367. 
 
 M.D. D D
 
 402 TROVER. 
 
 refusal, and the price at the time Avlien the certificates were 
 given up, and they found accordingly. This direction was held 
 to be correct on a writ of error (r). So, in an action on the 
 case against a collector of customs, for refusing to sign a bill of 
 entry for corn, under a claim for duty, and detaining the same, 
 it was decided (also on error) that the measure of damages for 
 the detention, was the loss the plaintiff suffered by a fall in the 
 price of corn while his property was kept from him (s), Xeither 
 of these cases was in form tro'/er, but the principle upon which 
 damages for the detention of goods should be calculated, is 
 clearly the same. 
 Change of The case of Peruvian Guano Co. v. Drcijfas (/) gave rise to 
 
 fnto TOstodv some curious questions as to the time during which an unsuc- 
 of Court. cessful defendant could be said to have been in illegal possession 
 
 of goods finally awarded to the plaintiff. There the Peruvian 
 government handed over to the Peruvian Guano Co. certain 
 cargoes of guano, which Dreyfus claimed as being his own under 
 a separate arrangement with the same government. On arrival 
 of -the cargoes Dreyfus commenced an action against the com- 
 pany, and by consent an order was made on the 30th Aj)ril, 
 1880, which substantially authorised the company to laud and 
 take possession of the cargoes, subject to all rights which 
 might ultimately be decided in the suits. On the 17th December, 
 1880, an order was made for a receiver, and the cargoes or some 
 of them were sold by his order. On the 13th January, 1885, 
 judgment was given in favour of the plaintiff, and an enquiry 
 was directed as to damages arising to the plaintiff from the 
 detention by the defendant of the cargoes. The chief clerk 
 found as damages two sums, consisting of the admitted loss in 
 the gross proceeds of the cargoes arising from the fact that they 
 were sold by the receiver instead of by Dreyfus, and from the 
 increased expense of the sale under order of Court. He also 
 found damages for loss of interest at 5 per cent, on those sums 
 and on the actual proceeds calculated up to date of judgment. 
 In two successive appeals to the House of Lords it was held that 
 the detention of the cargoes by the defendant was illegal up to 
 the order of 30th April, 1880, and continued to be so up to the 
 
 (r) Williams v. Archer, 5 C. B. 318 : see Serrao v. Noel, 15 Q. B. D. 549. 
 (s) Barrow v. Arnaud, 8 Q. B. 595. 
 (0 [1892] A. C. 166 ; 61 L. J. Ch. 749.
 
 TROVER. 
 
 403 
 
 order of 17th December, 1880, appointing a receiver, that the 
 defendant was liable to damages up to the last date, but was 
 entitled to credit for freight and landing charges, without pay- 
 ment of which neither party could have obtained possession. 
 From the 17th December, 1880, the possession became that of the 
 Court, and the defendants were no longer in illegal possession, 
 or liable to the plaintiff for damages arising from the fact that 
 he was kept out of possession, or that the sale was made by the 
 Court in a way less profitable to him than it would have been 
 if conducted by himself. The result was that damages should 
 not be computed for any time after the] order for a receiver. 
 Interest at 4 per cent, from date up to the day of payment was 
 awarded on the sum so arrived at. 
 
 Before quitting this subject, it may be as well to remark that Property 
 a recovery in trover changes the property, and vests it in the Jg^''^''4''i!j J'n 
 defendant. Accordingly it was held to be a good plea to this trover and 
 action, that the plaintiff had previously recovered against a satisfaction. 
 third person for the conversion of the same goods, and that 
 after this recovery, and satisfaction in damages, the defendant 
 in the former action had sold them to the present defendant, 
 which was the conversion now complained of (ii). There are 
 two points, however, upon which the authorities are at variance. 
 The first is whether the property is changed by the judgment 
 before satisfaction, or only by actual payment of the damages. 
 The latter doctrine is laid down in Jenkins (v), where it is said, 
 " A. in trespass against B. for taking a horse recovers damages ; 
 by this recovery, and execution done thereon, the property in 
 the horse is vested in B. Solutio pretii emptionis loco habetur.'' 
 And so it is stated by Holroyd, J. (x), and by Tindal, C. J. (y), 
 that by a judgment in trover and satisfaction of damages the 
 property is changed. And this doctrine is cited as law in the 
 notes to W. Saund. by its eminent editors (z). On the other BucUand v. 
 hand the contrary rule was maintained in a later case, where a 
 
 (u) Cooper v. Shepherd, 3 C. B. 266 
 
 (v) 4th Cent. Ga. 88. 
 
 (x) 3 B. & C. 206. 
 
 (y) Cooper V. Shepherd, 3 C. B. 272. 
 
 (z) 2 W. Saund. 47, cc. n. ;:;. 6th ed. In 2 Notes to Saunders, at p. 134 
 (/), Sir E. V. Williams has introduced the words "it appears not to be 
 material that the recovery should be followed liy satisfaction : Buckland V. 
 Johnson." 
 
 D D 2
 
 Harrison. 
 
 434 TEOVEE. 
 
 plea of judgment without satisfaction was held to be good (a). 
 Jervis, C. J., after noticing the cases just cited, said, " But in 
 Adams y. Bronghton (b), it is laid down that the judgment, 
 and not the payment of the money recoyered, changes the 
 property, and the true rule was laid down by Parke, B., in Ki)7g 
 V. ffoare (c), yiz., ' that that which is uncertain is made certain 
 by the judgment, and then the judgment affords a higher 
 remedy, and the right of action for troyer is merged in it.' 
 Precisely the same decision had been arriyed at long before, 
 when in troyer the defendant pleaded a former recoyery against 
 H., who was taken in execution for the damages. It was 
 argued that execution without payment was no satisfaction ; 
 but the plea was held good, and Popham, C. J., said, ' If one 
 hath judgment to recoyer in trespass against one, and damages 
 certain, although he be not satisfied, yet he shall not have a 
 new action for the same trespass. For the same reason, if one 
 haye cause of action against two, and obtain judgment against 
 Brinsmmd v, the onc, he shall not haye remedy against the other.' " (d). It 
 became necessary for the Court of Common Pleas to choose 
 between these conflicting authorities in a recent case in which, 
 in substance, the plaintiff haying recovered judgment in trover 
 against one of two wrong-doers, which judgment was un- 
 satisfied, sued the other for keeping the goods, and so con- 
 tinuing the wrong. In a considered judgment the question for 
 decision was stated to be, whether judgment in trover without 
 satisfaction changes the property so as to yest it in the defen- 
 dant from the time of the judgment, or whether such recovery 
 operates as a mere assessment of the value, on payment of 
 which the property in the goods vests in the defendant. It 
 was pointed out that Adams y. Broughton seemed to be un- 
 satisfactorily reported in Strange, and that in Buddand v. 
 Johnson the point did not really arise ; and the opinion of the 
 Court was expressed, that good sense and abundant authority 
 showed that mere recovery without satisfaction has not the 
 
 (a) Buckland v. Johnson, 23 L. J. C. P. 20i ; 15 C. B. 145. 
 (6) 2 Stra. 1078. 
 
 (c) 13 M. & W. 494 ; affirmed, Kendall v. Hamilton, 4 App. Cas. 504 ; 
 48 L. J. C. P. 705. 
 
 {d) Brown v. Wootton, Cro. Jac. 73.
 
 TROVER. 405 
 
 effect of changing the property. Judgment was accordingly 
 given for the plaintiff (f). 
 
 The second doubt is as to the effect of a judgment in trover Effect of a 
 for less than the full value of the goods. It is expressly stated Je;g^°;^^\^i,°e' 
 by Holroyd, J., and Littledale, J. (/), that an action of trover full value of 
 is no bar unless the full amount has been recovered. And so it *^^ ^oods. 
 was decided in an old case, where the defendant, who was sued 
 in trover for eighty-nine sheep, pleaded a former recovery 
 against other defendants in an action qiuire ceperunt et ahduxe- 
 runt ores, and damages 2d. ; there, however, the judgment went 
 on the ground that the verdict had not been for the value of the 
 sheep at all, but only for the damage by taking and driving 
 them ; and with this view, Yelverton, J., disagreed (//). The Buck-land v. 
 same point arose incidentahy in the case cited above (A), J'^^^^^- 
 though it was not necessary to decide it. The action was 
 for money had and received. Plea, that the money was the 
 proceeds of certain goods of the plaintiff which had been con- 
 verted, and in respect of which plaintiff had already sued A. 
 in trover, and recovered KjO/. It appears that defendant and 
 A. had converted the goods by selling them, but that de- 
 fendant alone had received the proceeds of the sale, which 
 were 150?. The plaintiff claimed at all events to recover the 
 difference between his verdict, and the amount fur which the 
 goods had sold. It was held he could not, and Jervis, C. J., 
 said, " The fallacy arises from forgetting, that by the judgment 
 in the action of trover the property in the goods was changed 
 from the time of the conversion {i), and that they then became 
 the goods of A. ; and that when the defendant received the 
 proceeds of the sale, he received the proceeds of the sale of 
 A.'s goods." Maule, J., said, " In an action of trover, the 
 plaintiff may not always (certainly not always in trespass) re- 
 
 (c) Brinsmcoxl v. Harrison, L. R. 6 C. P. 584 ; 40 L. J. C. P. 281 : 
 affirmed, Ex parte Drake, 5 Uh. D. 866 ; 46 L. J. Bank. 105. This case 
 supports the decision in Kunj v. Hoare, that judgment against one of two 
 tort feasors is a bar to an action against the other for the same cause of action, 
 although the judgment be unsatisfied ; and the judgment was affirmed on 
 appeal on this point, L. R. 7. C. P. 547 ; 41 L. J. C. P. 190. An inter- 
 locutory judgment signed for want of a plea had previously been held not to 
 pass the proDerty : Marston v. Pldllips, 12 W. R. 8 ; 9 L. T. N. S. 289. 
 
 if) 3 B. & C. 207. 
 
 (g) Lacon v. Barnard, Gro. Car. 35 : Field v. JeUicus, 3 Lev. 124 
 
 (k) BucMand v. Johnson, uhi supra. 
 
 (i) See 6 M. & G. 640, n.
 
 406 DETINUE. 
 
 cover the full value of his ooods. What might be the result 
 if it were shown here, which it is not, that the plaintiff had 
 not recovered the value in the former action, I say nothing ; 
 but in the present case, we must take it, that the plaintiff 
 having his election either to sue in trover for a conversion, or 
 in an action for money had and received, elected to sue in 
 trover, and recovered the full value from A." It will be 
 observed that the judgment of the Court is here put on two 
 different grounds, each of which gets rid of the point in 
 question. Jervis, C. J., held, that the proceeds never were 
 money had and received to the plaintiff's use, as the effect of 
 the judgment against A., relating back to the moment of the 
 sale, made them his goods at that instant. If so the defendant 
 was not liable at all. Maule, J., and Cresswell, J., held, that 
 by the election to sue in trover, the plaintiff threw himself upon 
 the verdict of the jury as to what the real value of the property 
 was. They might have given more than it sold for, and they 
 happened to give less. It was no longer in his power to raise 
 the question. Indeed, except in some rare cases, it is hard to 
 see how the question could arise in a shape fit for discussion. 
 It may be presumed that the judge would always direct the 
 jury to give the value of the article, or of the plaintiff's interest 
 in it. The verdict of the jury must be taken to be their finding 
 as to its value. A clear error might be ground for a new trial, 
 but how could a plaintiff, while acquiescing in the verdict, say 
 that it was not what it professed to be ? 
 Detinue. II. In detinue the judgment is to recover the thing itself 
 
 and damages for its detention ; or if it cannot be returned, 
 then its value {h). It was foiiuerly in the option of the de- 
 fendant whether he would return the thing, or pay its value (/). 
 And there was no common law process to compel him to give 
 it up (m). But such a power was given by statute 17 & 18 
 Vict. c. 125, s. 78, and is continued by the new rules {n). Where 
 there are several things demanded the jury ought to find the 
 
 {k) Peters v. Eeyward, Cro. Jac. 682 : Paler v. Haoxlyman, Yelv. 71 ; 
 per Bowen, L. J., cited 42 Ch. D. at p. 75 : Ex parte Vaiujhan, 14 Q. B. D. 
 
 (I) Per Frowike, C. J., Keihv. 64, b. : Phillips v. Jones, 15 Q. B. 867. 
 (?n) Walker v. Needlmm. 4 Sco. N. R. 222. 
 
 {n) 0. 48, E. 1. See Chilton v. Carrington, 15 C. B. 7S0 ; 24 L. J. C. P. 
 78.
 
 TRESPASS TO GOODS. 
 
 407 
 
 value of each separately (o). Tlie rules as to assessing the value 
 of the goods, damages for their detention, and staying proceed- 
 ings upon their delivery, are just the same as in trover {p). 
 
 AVhere the verdict cannot be for a return of the goods, on 
 account of their destruction or previous re-delivery, it will be 
 absolute, in the former case, for their value and damages ; in 
 the latter case, for damages only. In detinue for charters which 
 have been burnt, the plaintiff shall recover the whole value of 
 the land(^). And it is a good plea to the further maintenance 
 of the action, that the goods were delivered to and accepted by 
 plaintiff since action, and payment into Court of Is. damages 
 for detention (r). And where the action was for scrip certifi- 
 cates which had fallen in value between the time of demand 
 and re-delivery before verdict, the judge left it to the jury to 
 find, as the measure of damages for detention, the diminished 
 price of the scrip (s). But the plaintiff must give evidence of 
 the value, and where no such evidence has been given, if the 
 jury give a substantial sum, the Court will, on leave reserved, 
 reduce it to a nominal one (/), 
 
 On account of the alternative character of a judgment in 
 detinue, the property in the goods detained does not vest in 
 the defendant, till the plaintiff has signified his election to 
 abandon it by issuing execution fur the value, instead of 
 enforcing its delivery («). 
 
 III. In an action for trespass to goods, the damages in general 
 are measured by the value of the goods, or the amount of injury 
 done to them. These have been already sufficiently dis- 
 cussed (.r), and indeed seldom present any difficulty. In the 
 case of fixtures, however, the mode of valuation may differ 
 materially, according to the form in which the action is brought. 
 In trover, as we have seen, the plaintiff can only recover their 
 value as chattels (y). But in trespass their actual value as 
 
 Wlien proijerty 
 cannot be 
 returned. 
 
 When property 
 vests in de- 
 fendant. 
 
 Damages in 
 trespass are 
 value of goods. 
 
 (o) 8 Yin. Abr. 39, Detinue, D. 7 : Paioly v. Holly, 2 W. Bl. 853. As to 
 the effect of their not assessing the value, see post, tit. Writ of Inquiry. 
 (p) See ante, pp. 379 — 402 : Phillips v. Hayivard, 3 Dowl, 3G2. 
 {q) 8 Viner, Abr. 39, Detinue, E. 
 (?•) Crossfidd v. Such, 8 Ex. 159. 
 (s) Williams V. Archer, 5 C. B. 318. 
 (t) Anderson v. Passman, 7 C. & P. 193. 
 (u) 6 M. & G. 640, n. See 0. 42, R. 6. 
 (x) Ante, p. 379, et seq. 
 (y) Clarke v. Holford, 2 C. & K. 540, ante, p. 337.
 
 408 
 
 TRESPASS TO GOODS. 
 
 Special 
 damage. 
 
 Wrongful sale 
 in execution, 
 
 fixtures may be given. S. deposited the lease of his house with 
 plaintiff as security for a loan, and made an assignment of 
 fixtures, undertaking either to mortgage the lease to the plain- 
 tiff with power of sale, or to allow him to sell either fixtures, 
 or lease and fixtures on the premises, without a mortgage. S. 
 became a bankrupt, and his assignees in bankruptcy seized the 
 fixtures, and sold them by auction for 3G/. It appeared that 
 this was a fair price for them when severed, but that they 
 would have sold for 80/., if valued as between incoming and 
 outgoing tenant. It was held that the plaintiff was entitled 
 to the latter amount, as it was not to be presumed that he 
 would not have sold them to the eventual purchaser of the 
 term, which in case of non-payment he was entitled to do (s). 
 
 Special damage resulting from the immediate loss or injury 
 may also be allowed for, if not of too remote a nature. In an 
 action for injury to the plaintiff's horse by a colhsion, it was 
 held that he might recover the keep of the horse at the farrier's 
 while it was being cured, the farrier's bill, and the difference 
 between the value of the horse before and after the accident. 
 But he could not recover the hire of another horse which plain- 
 tift' had been obliged to have while his own was laid up (a). 
 
 In one case a curious series of disasters was held to be 
 chargeable upon the defendant. His carriage was driven 
 against the wheel of the plaintiff's chaise ; the collision threw 
 a person who was in the chaise upon the dashing-board ; the 
 dashing-board fell on the back of the horse ; the horse kicked 
 in consequence, and by kicking injured the chaise. It was 
 held that the plaintiff" might recover lor the whole of the loss 
 so sustained {h). 
 
 An execution creditor has been held not to be liable to a 
 person whose goods have been wrongfully taken in execution, 
 for any damage sustained by the latter in consequence of their 
 sale under an interpleader order. The execution creditor is 
 responsible for all damage up to the time of the interpleader 
 order, but what is done under the order is the consequence of 
 
 {z) Thomjison v. Pcttitt, 10 Q. B. 103 : Moore v. Drinkwatcr, 1 F. & F. 
 134. 
 
 (a) Hughes v. Quentin, 8 C. & P. 703. See Barrow v. Arnaud, 8 Q. B. 
 695 ; ante, p. 402. 
 
 (6) Gilbertson v. Richardson, T) C. B. 502.
 
 TRESPASS TO GOODS. 409 
 
 the judge's decision upon the interpleader smnmons, and is 
 not the approximate consequence of the seizure (c). Nor is 
 he liable for indirect consequences resulting from the seizure, 
 such as that the plaintiff's credit was affected, and that actions 
 "were brought against him for debt, under which his property 
 was sold at less than its proper value (d). 
 
 When a vessel, having been run down, subsequently becomes Collision at 
 unmanageable, and gets upon a bank, and is lost, the presump- ^^'^• 
 tion of law is, that her eventual loss is attributable to the 
 effects of the collision, and not to the mismanagement of the 
 crew. Her whole value consequently would be the measure of 
 damages (e). Where, however, the full value of the vessel is Demurrage, 
 given as compensation by a Court of Admiralty, the plaintiff 
 cannot recover anything in the nature of demurrage for loss of 
 the employment of his vessel, or his own earnings, in conse- 
 quence of the collision (/). In cases of partial loss the prin- 
 ciple of compensation is restitutio in integrum. The causes out Partial loss, 
 of which such a claim arises, seem to resolve themselves into 
 immediate expenses occasioned by the collision, repairs, and 
 detention of the ship. As to the first, a merely probable but 
 discretionary outlay, such as the employment of a tug, which 
 might have been incurred if there had been no accident, but 
 which was made indispensable by the collision, cannot be de- 
 ducted from the charge {g). As to the second, the parties are 
 entitled to a complete repair of all the damage done, notwith- 
 standing the result may be to render the ship more valuable 
 than she was before the collision. In cases of insurance one- 
 third of the value of the material is deducted, because the new 
 material is more valuable than the old, but it is not so where 
 repairs are done in consequence of collision (Ji). Under the 
 third head, one ground of loss consists of wages and keep of 
 officers and crew while the ship is lying idle. Where it would 
 be a reasonable and proper thing to discharge the crew during 
 
 (c) Walher v. Ohling, 1 H. & C, 621 ; 32 L. J. Ex. 142. 
 
 (d) Nicosia V. Vallu7ie, 37 L. T. (P. C.) 106. 
 
 (e) 2'he Mellona, 3 Rob. Adm. 7. As to loss caused by mismanagement of 
 the crew, see The Flying Fish, ante, p. 66. 
 
 (/) The Columbus, 3 Rob. Adm. 158. 
 
 Ig) The Inflexible, Swab. 200. 
 
 (h) Per Dr. Lushington : The Pactolus, Swab. 174; graving dock dues, 
 and such like charges, come under the head of repairs : The Black Prince, 
 1 Lush. 568.
 
 410 TRESPASS TO GOODS. 
 
 Detention of the pi'occss of repair, outlay upon them cannot properly be 
 ^ *^' allowed against the ship. But it would generally be proper to 
 
 keep on the officers and engineers, and even the whole crew 
 where it is the usual custom to keep them on permanently ; as, 
 for instance, in vessels employed continuously in the East India 
 trade, it is proper to keep on the Lascars, and the officers en- 
 gaged to take care of them and of the ship (^). A more 
 important and difficult claim arises out of the loss of the 
 services of the ship to her owner. As to this. Dr. Lushington 
 said (Jc), " The plaintiff is entitled to a just compensation for the 
 non-employment of the ship while under repair, and that just 
 compensation must again consist of the expense of detention 
 and amount of profit lost. Indemnity for loss of time during 
 the detention must be estimated upon the principle, as nearly 
 as may be, of what would certainly or most probably have been 
 obtained, if there had been no collision. As to the time for 
 which such compensation must be made, it ought to be 
 reckoned from the period when the vessel, in the ordinary 
 course, would have been ready for sea if there had been no 
 collision, up to the period when with due diligence the repairs 
 ought to have been completed. In all these cases it must be 
 remembered, that the party condemned to pay damages is, 
 legally speaking, a wrong-doer, and that full compensation is 
 due." AYhere the Admiralty Courts allow damages for a de- 
 tention of a vessel while under repair, the onus of proving the 
 loss so incurred rests upon the plaintiffs. They must prove 
 that the vessel would have earned freight, and that such 
 freight was lost by the collision. AVhen, for example, a 
 fishing voyage is lost, or a vessel would have been beneficially 
 employed, such damages will be given, but not otherwise (l). 
 
 A case which frequently occurs is where the vessel injured 
 is one of a regular line, whose sailings are fixed for specified 
 dates, each ship lying up from the date of arrival till the date 
 of departure for overhauling and repairs. In such a case no 
 damage can be claimed merely for a detention which does not 
 exceed the period usually allowed. If when her time for 
 
 (?) The Black Prince : The Inflexible, ubi supra. 
 
 {k) The Inflexible. 
 
 (0 The Clarence, 3 Rob. Adm. 283 : Star of India, 1 P. D. 466 : The 
 Consett, 5 P. D. 229 : The Thyatira, 8 P. D. 155 : The Arycntiuo, 14 App. 
 Ca. 519 ; 53 L. J. P. D. A. 1.
 
 TRESPASS TO GOODS. 411 
 
 sailing arrives, she is not able to leave in consequence of her 
 injuries, and another vessel of the same line takes her place, if 
 the substituted vessel belongs to the same owner no damages 
 can be claimed, unless some loss arises from the substitution ; 
 as, for instance, by her being smaller, and not al^le to take a 
 full cargo (in). It would be different if the owners are not the 
 same, as then what is earned by one ship is lost to the owner of 
 the other (w). 
 
 Where goods have been delayed in consequence of a collision, 
 no damages can be recovered for loss of the market. The 
 principle of this ruling has already been fully discussed in an 
 earlier part of this work (o). 
 
 I may observe that in the Admiralty Courts, where a col- 
 lision has occurred, and both parties are equally to blame, the 
 rule is to divide the damages equally between them (j?). 
 
 The cases in which a plaintiff's own negligence may destroy 
 his right to recover for damage done, especially in case of col- 
 lisions, have been discussed so fully in treating of remoteness 
 of damage, that I need only refer the reader to them (fj). The 
 liability of shipowners for any loss or damage to any other 
 ship, or to the goods on board of any other ship, by reason of 
 the improper navigation of their own vessel, is limited to an 
 aggregate amount not exceeding 87. for each ton of the ship's 
 tonnage, with interest from the date of the collision (r). This 
 Act extends to damage caused by collision (s). 
 
 As to cases in which the costs of former actions may be Costs of former 
 recovered, the reader is referred to the decisions cited below, 
 and to a former chapter in which they are discussed (/). 
 
 (m) The City of Peking, 15 App. Ga. 438 ; 59 L. J. P. C. 88. 
 
 (n) The Black Prince, 1 Lush. 568. 
 
 (o) The Parana, 2 P. D. 118 : The NottinyUll, 9 P. D. 105 ; 53 L. J. P. 
 D. & A. 56, ante, pp. 16—18. 
 
 (p) Faux V. Sheffer, 8 Moo. P. C. C. 75 : The Milan, 31 L. .J. Adm. 105. 
 The innocent owner of a cargo, according to tliat case, is entitled to recover a 
 moiety of his damage from the owner of eacli ship. 
 
 (5) See ante, pp. 65 — 74. 
 
 (r) 25 & 26 Vict. c. 63, s. 54, ante, p. 306. The Northumhria, L. R. 3 
 Ad. & Ecc. 6 : Smith v. Kirhy, 1 Q. B. D. 131. By the ancient law of the 
 sea, there is no limitation to the liability of a wrong- doer : The Wild Ranger, 
 32 L. J. Adm. 49. 
 
 (s) Abb. Ship. 240, 8th ed., 593, 12th ed. ; 2 B. & A. 15. See ante, 
 p. 307. And it has operation on the high seas, and applies both to British 
 and foreign ships : The Amalia, 32 L. J. Adm. 191, ante, p. 307. 
 
 [t) IIMoway v. Turner, 6 Q. B. 928 : Tindall v. Bell, 11 M. & W. 228 : 
 Loton 7. Levereux, 3 B. & Ad. 343, ante, pp. 84—100.
 
 412 
 
 TRESPASS TO GOODS. 
 
 Damages for 
 the manner of 
 tlie taking. 
 
 Actions against 
 several. 
 
 Actions by 
 several. 
 
 There is one distinction between trespass and trover, which 
 materially affects the question of damages. It is, that as the 
 gist of the former action is the wrongful taking, while that of 
 the latter is the wrongful conversion, damages may be recovered 
 in trespass on account of a stage of proceedings prior to that 
 which can be noticed in trover. The mannj^r in which the 
 property was seized may be the source of substantial damages, 
 in addition to any which could be given in respect of their 
 detention. Accordingly where the defendant wrongfully seized 
 goods, and placed a man in possession of them for several 
 days, but allowed the plaintiff to make free use of them, it was 
 decided that the owner might recover substantial damages (t//). 
 In such a case, in trover, only nominal damages could have 
 been given for the conversion. And so in an action for seizing 
 goods under an unfounded claim for a debt, damages may be 
 given beyond the value of the goods, not only for the breaking 
 and entering, but also on account of the false pretence of a legal 
 claim, and the annoyance and disturbance to the plaintiff in 
 carrying on his business, and the belief caused of his insolvency, 
 in consequence of which his lodgers left him (.r). Where, 
 however, the action is against two jointly, nothing can be given 
 in evidence as special damage which is not the joint act of 
 both. The true criterion of damage is the whole injury which 
 the plaintiff has sustained from the joint act. Therefore the 
 malignant motive of one party cannot be made a ground of 
 aggravation of damages against the other party, who was 
 altogether free from any improper motive. In such a case the 
 plaintiff ought to select the party against whom he means to 
 get aggravated damage (//). Where, however, the same motive 
 actuated both, I apprehend there could be no reason against 
 offering evidence of it (z). 
 
 On the same principle, in an action by several, no evidence 
 can be received, and no damages allowed in respect of any 
 injury to one which was not also an injury to the others (a). 
 
 (u) BaylissY. Fisher, 7 Bing. 153 : Mudun Doss v. Gokul Doss, 14W. K. 
 590 ; 14 L. T. N. S. 646, P. C. 
 
 ix) Brewer v. Dew, 11 M. & W. 625. 
 
 (y) Clark v. Neusam, 1 Ex. 131, 139. It is by no means clear that this 
 will continue to be the rule under the present procedure. See post, pp. 453, 
 and 568. 
 
 (z) As to the admissibility of evidence of motive in actions of tort, see 
 ante, p. 45, et seq. 
 
 (a) Barratt v. Collins, 10 Moo. 446.
 
 TRESPASS TO GOODS. 413 
 
 As to actions for seizures under the Castoms Acts, see ante, Customs Acts, 
 p. 395. 
 
 In mitigation of damages, the defendant may of course show jntigation of 
 anything which tends to diminish the value of the thing damages, 
 affected, or the amount of loss incurred, or may negative the 
 malicious motive ascribed to him. 
 
 Accordingly, in trespass for destroying a picture, which 
 turned out to be a scandalous libel upon the defendant and 
 his sister, and which was publicly exhibited. Lord Ellen- 
 borough told the jury that if it was a libel upon the persons 
 introduced into it, the law could not consider it valuable as a 
 picture, and that in assessing damages they must not consider 
 it as a work of art, but must award the plaintiff only the 
 value of the canvas and paint, which formed its component 
 parts {V). And so the defendant may show that the plaintiff 
 had not an interest in the goods to their full value, and that 
 the residue of the interest was in himself. In such a case the 
 plaintiff can only recover to the extent of his own interest {c). 
 But this would be no defence, even in mitigation of damages, 
 when the residue of interest was not in the defendant, but 
 some third person (d). 
 
 It has been decided that in trespass for taking goods, the Repayment of 
 defendant cannot, even in mitigation of damages, offer evi- goo(is*^^ten 
 dence to show a repayment by him, after action brought, of 
 money produced by the sale of the goods. Lord Denman 
 said, " The rights of parties at trial are the same as they were 
 at the commencement of the suit, or if they are changed, a 
 plea puis darrein continuance ought to place the new facts on 
 the record. It is important to uphold the principle, that a 
 party is entitled to recover by way of damage all that at the 
 commencement of the suit he has lost through the wrongful 
 act of the defendant " {e). This decision is certainly opposed 
 to natural justice, and it seems equally opposed to the analogy 
 of other actions. In trover, as we have seen, a re-delivery of 
 the goods, even after action brought, will authorise the jury 
 
 (6) Du Bost Y. Beresford, 2 Camp. 511. 
 
 (c) Brkrly v. KendaU, 17 Q. B. 937 : Toms v. Wilson, 32 L. J. Q. B. 
 S8-J, ia Ex. Ch., ante, p. 395. 
 
 {d) Heydon's Case, 13 Rep. 62 ; Stor. Bailm. s. 352, ante, p. 397] 
 (e) Rundle v. Littk, 6 Q. B. 174.
 
 Hi TRESPASS TO GOODS. 
 
 to give only nominal damages, unless actual loss lias been 
 caused by the detention or otherwise (/). So in detinue, 
 where the goods have been returned after the commencement 
 of the suit, the judgment is only for the damages caused by 
 the detention (ff). In trespass, no doubt, an additional element 
 enters into the verdict. It ought to comprise damages for 
 the manner of the taking, for the value of the thing taken, 
 and for the loss incurred by its being taken. But when the 
 second item has been alreadj paid for, why should it be paid 
 for again in trespass, any more than in trover or detinue ? It 
 is difficult to see how any plea puis darrein continuance could 
 have been framed, which would not have been bad on general 
 demurrer, unless it had alleged that the money was paid and 
 accepted in full satisfaction of all the causes of action, which 
 it obviously was not. Anything short of this would have 
 been merely a plea to the damages, and have left the taking 
 unanswered (h). JSTo doubt the defendant, instead of paying 
 the money to the .plaintiff, might have paid it into Court. 
 But such a course would clearly have been less beneficial to 
 the plaintiff, since it would have forced him to stop his action, 
 or continue it at the risk of losing his costs (^) ; it is hard 
 then to see why it should be so much more beneficial to the 
 defendant. Xor is this like an attempt to surprise the plaintiff 
 by setting up a new defence, such as title in another, because if 
 true afc all it must be perfectly known to him. Nor, finally, 
 does it come within the rule which requires payment after 
 action to be pleaded, because it would have been no defence if 
 it had been pleaded (k). 
 Seizure unckr lu the same case a question was raised, whether an attorney, 
 judgment. gQg(j jj^ trespass for seizing goods, might give in evidence a 
 
 judgment under which he had acted in issuing a fi. fa. No 
 decision seems to have been given upon this point. On prin- 
 ciple it would seem to be admissible in mitigation of damages, 
 as showing the character of the act, and the absence of all 
 malicious motive. 
 
 (/) Moon V. EaphneJ, 2 Bing. N. C. 315. 
 
 {g) Williams v. Archer, 5 C. B. 318. 
 
 (h) 1 W. Saund. 28, a, n. 3. 1 Wms. Notes to Saund. 23, n. (1). 
 
 (t) Rumhdow v. Whalley, 16 Q. B. 397. 
 
 ijc) See, too, ;per Lord Abinger, C. B., 11 II. k W. 744.
 
 TRESPASS TO GOODS. 415 
 
 Matter of a merely collateral nature cannot be given in Evidence of 
 reduction of damages. For instance, where the action was °°^'f^**^'''?^ ^ 
 
 . . ° ■ matter is not 
 
 for injury caused by a collision at sea, the defendant was not admissible. 
 allowed to deduct from the amount of loss proved, any money 
 paid to the plaintiflF by his insurers in respect of the same 
 damage. This would be to make the wrong-doer pay nothing, 
 and take all the benefit of the insurance without the burthen 
 of the premium (/). On the same principle, in trespass for 
 taking away goods sold by defendant to plaintiflF, and not paid 
 for according to contract, the plaintiflF is entitled to their full 
 value. The jury cannot take into consideration the debt due 
 in respect of them from the plaintiflF to the defendant, because 
 the retaking by the latter would be no answer to an action by 
 him for their price (m). 
 
 This is the most proper place for noticing actions against Actions against 
 the sheriflF by the debtor, or supposed debtor, for an unlawful ^^*^''''^- 
 execution. In such cases the sheriflF appears as a wrong-doer, 
 and damages against him are regulated on much the same 
 principles as against other persons. The rule was discussed 
 lately in the Court of Queen's Bench under the following cir- 
 cumstances. The action was trespass against the sheriff and 
 his bailiflF for breaking the plaintiflF's house, and seizing his 
 goods ; it appeared that a former execution for the same debt 
 2701. had been put in, and the debt had been paid to a person 
 at the bailiff's oflflce. He never paid it over, and the execu- 
 tion creditor never received it. Upon this account execution 
 was put in by the same sheriff, which was the ground of 
 action. The goods were not sold ; but a man remained in 
 possession several days. The jury gave a verdict for 400/. It 
 was held that these damages were not excessive against the 
 sheriff ; per Cur. " If the second execution had been put in 
 merely by mistake, or with a view bond fide to try any ques- 
 tion which might fairly have been tried between the sheriff 
 and the plaintiff, we should have thought the damages ex- 
 cessive as against the sheriff, as they greatly exceeded the 
 pecuniary loss sustained. Sheriffs acting bona fide are entitled 
 to and will always have the protection of the Court. The 
 
 (?.) Yates V. Whyte, 4 Bing. N. C. 272. 
 
 (hi) Gillard v. Brittan, 8 M. & W. 575 : Page v. Cowasjee, L. R. 1 P. C. 
 App. 127. See ante, p. '697. •
 
 416 TKESPASS TO GOODS. 
 
 jury appear to have thouohfc that this was a case in which 
 the process of the Court had been abused, and a gross outrage 
 was committed under the forms of law. We cannot say t-hat 
 they were wrong in coming to this conchision, and if they 
 were right we should not be justified in interfering in behalf 
 of the sherifip with the amount of compensation which they 
 have awarded in the exercise of their constitutional func- 
 tions " (w). 
 Damages when A question has arisen several times as to the amount of 
 goods have damages, where the sheriff has taken goods under a regular 
 break?nr4en A- fa., but has been guilty of such an irregularity in executing 
 outer door. j^ as makes him a trespasser ah initio. It is laid down in 
 Scmcujne's case(o), that the sheriff cannot break the defen- 
 dant's house by force of a fi. fa., but he is a trespasser by the 
 breaking, and yet the execution which be then doth in the 
 house is good. If this be so, damages against him ought 
 only to be for the breaking, and not for the seizure. On the 
 other hand, there seems to be an almost insuperable difficulty 
 in the way of framing any plea which shall not leave the 
 taking without justification, and, unless it can be justified, 
 nothing short of entire damages can, it seems, be given. It is 
 settled that the door being open is a condition precedent to 
 executing the writ in the dwelling-house, and that the aver- 
 ment is material. Therefore when in trespass for breaking the 
 plaintiff's house, and arresting him therein, the defendant 
 pleaded, except as to the breaking, an arrest under a ca. sa., 
 the door being open, and this averment w^as traversed with 
 success ; it was held that damages might be given not only 
 for the breaking and entering, but also for the arrest (jj). This, 
 hoAvever, was a case of personal arrest, and in a later instance, 
 Parke, B., asked, " whether there was any authority for saying 
 that the same doctrine applied to an execution against 
 goods ? " iq). There is an exactly similar case ; the action was 
 
 («) Gregory v. Cottrrdl, 1 E. k B. 360 ; 22 L. J. Q. B. 217. It was 
 decided in this case in ihe Ex. Ch. that the sheriff is responsible not only for 
 the wrongful acts of his otBcers, but for those of persons employed by them, if 
 done by colour of the warrant ; 5 E. & B. 571 ; 25 L. J. Q. B. 33. The 
 high bailiff of a county court is in a similar position : Burton v. Le Gros, 34 
 L. J. Q. B. 01. 
 
 (o) 5 Rep. 93, a ; 1 Sm. L. C. 115. 0th ed. 
 
 (p) Kerhey v. Denhy, 1 M. & W. 336. 
 
 [q) Percival v. Stamp, 9 Ex. 167, 170 ; 23 L, J. Ex. 25.
 
 TRESPASS TO GOODS. 417 
 
 for breaking and entering the plaintiff's house, seizing his goods 
 and compelling him to pay a sum of money to withdraw from 
 possession. The defendant justified under a writ of fi. fa., the 
 outer door being at the time open. The jury found that it 
 was shut, and gave 720^., observing that the sum was meant 
 to include 2201. paid by the plaintiff, under protest, to induce 
 the defendant to withdraw the execution. A motion was made 
 to reduce the damages, on the ground that the execution was 
 valid, though the entry was a trespass, and therefore the amount 
 of the levy ought not to have been given. The Court, in giving 
 judgment, after observing that the only plea of justification 
 under the writ of fi. fa. was one which alleged that the defen- 
 dant entered for the purpose of making a levy, the outer door 
 being open, and that this allegation was found against them, 
 as well as the plea of not guilty, proceeded to say, " The defen- 
 dants therefore could not avail themselves of the writ of fi. fa. 
 under the plea of the general issue, and were upon the state of 
 the record, without defence in regard to the amount exacted 
 to induce them to withdraw ; the jury were warranted in in- 
 cluding the amount so exacted in damages. The state of the 
 record before mentioned renders it unnecessary to consider how 
 far, and to what extent, a levy under a writ of fi. fa. can be 
 justified, where properly pleaded, when the possession of the 
 goods has been illegally obtained" (r). When the question 
 next arises we may expect some phenomenon of special pleading 
 to meet the possibility so cautiously hinted at. Probably the 
 real importance of the doctrine above stated will be felt when 
 the action is not against the sheriff or his bailiffs, but against 
 the execution creditor, for the proceeds of the sa^e. Should he 
 be successful in separating himself from any connection with 
 the unlawful entry, he may be held entitled to retain the goods, 
 on the ground that the execution was valid, and that he cannot 
 be put in a worse position on account of improper conduct 
 which he did not sanction, and which was not the act of his 
 agent, but of a public officer obeying the mandate of a Court 
 of Justice {s). 
 
 (r) Brunswick v. Sloivman, 8 C. B. 317, 330. 
 
 (s) See 7 H. IV. c. 35 ; Com. Dig. Trespass, C. 1 ; 4 Inst. 317 : Robinson 
 V. Vauyhton, 8 C. & P. 255 : Wilson v. Tuinman, 6 M. & G. 236 : Lyons 
 V. Martin, 8 A. & K. 512 : Freeman v. Rosher, 13 Q. B. 750 : Smith v. 
 Holbrooke, 9 Ir. L. R. 155. 
 
 M.D. E E
 
 418 
 
 TRESrASS TO GOODS. 
 
 Breaking outer 
 door of an 
 out-house. 
 
 Seizing goods 
 out of jurisdic- 
 tion. 
 
 Payment of 
 money to 
 recover. 
 
 Liability of 
 creditor. 
 
 I may observe that the outer door of an out-house may be 
 broken open for the purpose of executing a fi. fa. (f), but not; 
 in making a distress (u). The cases were reconciled by Lord 
 Campbell, C. J., on the ground that a distinction may reason- 
 ably be made between the powers of an officer acting in execu- 
 tion of legal process, and the powers of a private individual, 
 who takes the law into his own hands, and for his own 
 purposes (x). 
 
 Where a fi. fa. has been executed in a place where the Court 
 had no authority, as for instance, out of the jurisdiction of the 
 Court, the measure of damages is the whole value of the goods 
 seized, and not the amount of injury actually sustained. To 
 admit the latter mode of estimating damages would be, in 
 eflFect, allowing the illegal proceedings to stand good (y). 
 
 When, after a wrongful seizure by the sheriff", the goods are 
 taken from him by another wrong-doer, from whom the right 
 owner can only obtain them by payment, he may, in an action 
 against the sheriff, recover as special damage the money neces- 
 sarily so paid (s). And on the same principle the sheriff" is 
 liable to all the costs of an illegal arrest, and not the original 
 plaintiff, unless he was privy to it («). Where, however, the 
 execution creditor has given such instructions to the sheriff" as 
 amount to a direction to him to do the unlawful act complain-ed 
 of, this constitutes the sheriff his bailiff", and the creditor will 
 be directly liable to an action by the person who is entitled to 
 redress for the unlawful act (If). The sheriff', of course, will 
 also be hable, but if he is sued he will be entitled to reimburse- 
 ment by the creditor for all damages awarded against him, up 
 to the time when he acquired a knowledge of the impropriety 
 of the execution, and might and ongiit to have withdrawn 
 it (c). Whether the creditor can by subsequent ratification 
 
 (t) Penion v. Browne, 1 Sid. 186. 
 
 (m) 9 Vin. Abr. 128, Distress (E. 2), pi. 6: Bro2vn v. Glenn, 16 Q. B. 254. 
 
 {x) 16 Q. B. 257. Both in the case of distress and eyecution, a bailiff may 
 break open the door to retake possession if there has been no abandonment : 
 Bannister v. Hyde, 3 E. & E. 627 ; 29 L. J. Q. B. 141, 
 
 (y) Soivell V. Champion, 6 A. & E. 407. 
 
 {z) Keene v. Dilke, 4 Ex. 388. 
 
 (a) Anon. 1 Chit. 580. 
 
 (6) Morris v. Salberf/, 22 Q. B. D. 614 ; 58 L. J. Q. B. 275 ; affirming 
 Jarmain v. Uoo-per, 6 M. & G. 827. 
 
 (c) Humphreys v. Pi-att, 6 Bligh N. S. 154 ; per Cockbiirn, C, J., 
 Childers v. Wooler, 2 E. & E., at p. 316 ; 29 L. J, (^. B. at p. 141.
 
 TRESPASS TO GOODS. 419 
 
 make himself liable for an unlawful act of a sheriff which he 
 had not directed, seems not quite settled (d). It is now 
 decided that an endorsement upon a writ containing a direction 
 to the sheriff is within the scope of a solicitor's authority, and 
 that his principal can be sued if the sheriff acts illegally in 
 pursuance of it. Verbal instructions given after the issuing 
 of the writ, whether by the solicitor or his clerk, are beyond 
 his authority, as they relieve the sheriff' of the obligation which 
 the law imposes upon him in the execution of his duty (e). 
 
 "We have before observed (/) that in trover by a bankrupt's Damages where 
 assignees, who would themselves have had to sell, the iury i'';""tirt must 
 
 ^ ' J J J have sold. 
 
 seldom give greater damages than the amount at which the 
 goods actually sold (g) ; and even may allow the sheriff's ex- 
 penses, if there were no circumstances making a sale by him 
 more unfavourable to them than if it had not taken place (h). 
 But where the plaintiff' is himself the owner of the goods, and 
 sues ill trespass, the amount of damages is entirely for the jury, 
 and they are not limited to the amount for which the goods 
 sold, though he had himself intended to sell them, and the sale 
 was conducted by the auctioneer whom he had commissioned 
 for that purpose (/'). 
 
 When in an action against the sheriff for seizing goods, Payments 
 evidence was offered in reduction of damages, that the sheriff "^gjl|g-''^ 
 had made certain payments on account of rent and executions, 
 which it was admitted he was bound to satisfy, the Court con- 
 sidered it doubtful whether sucli evidence was in general admis- 
 sible. In the particular instance, however, it was allovred, as 
 the plaintiffs had in their own notice of demand expressly 
 excepted the sums in question (k). 
 
 When there is a doubt respecting the property of goods Cases of iloulit 
 
 which the sheriff is directed to seize, he may summon a jury, as to nght of 
 
 ' -^ J ^ ' property. 
 
 in the nature of an inquest on office, to satisfy himself whether 
 
 (d) In Childers v. Woohr the majority of the Court thought that a 
 ratificatioa by subsequent adoption of the act would be sufficient. In 
 Morris v. Salberg, the Court of Appeal, without deciding the point, appear 
 to have been of an opposite ojsinion. 
 
 (e) Smkli V. Kcal, 9 Q. B. D. 340 : Morris v. Sallerg, uhi supra. 
 (/) Ante, p. 383. 
 
 {(/) Whitehouse. v. Atkinson, ?, C. k P. 344. 
 
 [h) Clark V. Nicholson, 6 C & P. 712 ; 1 C. M. & K. 724, F. C. 
 
 (t) Lockl.ey V. Fye, 8 M. & W. 133. 
 
 {k} Goldsntid v. Raphael, 3 Sco. 385. 
 
 E E 2
 
 REPLEVIN. 
 
 Yevclict for 
 plaintiff. 
 
 Effect of 
 recovery. 
 
 Verdict for 
 defendant. 
 
 the goods belong to the debtor or not. Their verdict does not 
 bind the rights of the parties, but it will go in mitigation of 
 damages, if they find that the goods are those of the debtor, and 
 it should happen that they are not (/). In general, however, the 
 modern remedy by interpleader will be found more effectual (m). 
 
 IV. The action of replevin is an anomalous one, in this 
 respect, that both plaintiff and defendant are actors in the suit. 
 In fact, it consists of two cross actions ; in which one party 
 claims damages for having his goods seized, while the other 
 party claims satisfaction for some demand out of which the 
 seizure arose. One result of this peculiarity is, that either 
 party may obtain damages («). 
 
 Should a verdict be found for the plaintiff, the jury assess the 
 damages as in an ordinary action of trespass. Unless special 
 damage is laid, they are generally only costs of the replevin 
 bond, and in practice were, before 19 & 20 Vict. c. 108, always 
 assessed at 2?. 2s. in London, Middlesex, York, and some other 
 places ; 21. 10s. elsewhere (o). They now depend on the amount 
 distrained for (jj). These are all he is in fairness entitled to, 
 as he has already had given back to him possession of the goods 
 distrained. 
 
 A recovery in replevin is a bar to any action for further 
 damages arising from the taking away of the goods, since all 
 such damages might have been, and ought to have been, 
 recovered in the action of replevin {q). 
 
 Xo damages were recoverable at the Common Law by the 
 
 {I) Dalton, Sheriff, 14G ; Gilb. Execution, 21 ; 4 T. R. 633 : Roberts v. 
 Thomas, 6 T. R. 88. 
 
 (m) See Order 57, which replaces 1 & 2 Wm. IV. c. 58. 
 
 (7() Money can now be paid into court by a plaintiff" in replevin, in answer 
 to a claim for damages ; 0. 22, R. 1 ; previously by 23 k 24 Vict. c. 126, s. 23. 
 
 (o) Chit. Prac. 1030, 9th ed. ; Archb. Prac. (1S53) 335. It has been 
 doubted whether special damages arising from an injury to the goods by 
 defendant or otlierwise could be recovered : Connor v. Bentley, 1 Jebb. & Sy. 
 Ir. Re]!. 240. See OfjnelVs Case, 3 Leon. 213 : Afkinson v. Neshitt, 9 Ir. L. 
 R. 271, and cases cited there. It is now settled that such damages, if reco- 
 verable in trespass, may be awarded in replevin : Gihbs v. Cruikshank, L. R. 
 8 C. P. 454 ; 42 L. J. C. P. 273 : followed and apparently extended by 
 Smith V. Enrigld (1893) W. N. 173. See a very able discussion on the 
 subject : 28 Law Journal. 852 (Dec. 16, 1893). 
 
 [p) 19 k 20 Vict. c. 108, Schedule C. ; Chitty's Arch. Pr. 1092, 12th ed. ; 
 ■Woodfall's L. & T. 547, 15th ed. By s. 71, a deposit may be made instead 
 of security being given. This statute is extended to all cases of replevin by 
 ''3 & 24 Vict c 126 s. 22. 
 " (5) Gibbs V. Cruikshank, L. R. 8 C. P. 454 ; 42 L. J. C. P. 273.
 
 ILLEGAL DISTRESS. 421 
 
 defendant in an action of replevin, or second deliverance, and 
 in the case of a verdict for the defendant, or of the plaintitf' s At common 
 being non-suited, the judgment at Common Law was merely ^^' 
 for a return of the goods (r). 
 
 By the combined effects of two statutes, 7 Hen. VIII. c. 4, By statutes of 
 s. 3, and 21 Hen. VIII. c. 19, s. 3, a person making avowry ^enry VIII. 
 or cognizance, or justifying as bailiff, if the avowry, &c., was 
 found for him, or the i^laintilf was non-suited, or otherwise 
 barred, recovered his damages and costs ; and by 17 Car. II. By statute of 
 c. 7, s. 2, in replevin for arrears of rent, provision was made, ^^^' ^^• 
 upon a suggestion of the defendant, in the case of a non-suit 
 before issue joined, or of a judgment for the defendant on 
 demurrer, for the issue of a writ of inquiry, upon the return of 
 which, defendant had judgment to recover the arrears of rent, 
 if the goods, &c., amounted to that sum ; and if not, then the 
 value of such goods, &c., with his full costs of suit. 
 
 All these statutes are now repealed, but there can be no doubt 
 that now, by proper claim or counterclaim, a defendant can 
 recover any damages to which he may be entitled, 
 
 V. Illegal distress. 
 
 The damages in suits of this nature depend greatly upon the 
 form in which the action may be brought. Where the defen- 
 dant can be treated as a trespasser ab initio, so as to make his 
 possession of the goods wholly wrongful, their entire vahie will 
 be recoverable. When it is necessary to sue for consequential 
 damage, the plaintiff can only obtain damages for the special 
 injury he has suffered, which may be very slight, where he was 
 really in fault, and liable to a seizure of his goods. 
 
 The action must always be for consequential damages where Form of action 
 an irreGrularity has been committed in distraining for rent, where an irre- 
 
 >^ J ^ gulanty has 
 
 This is enacted by 11 Geo. II. c. 19, s. 19, which, after re- been com- 
 citing that some irregularity is occasionally committed, for 
 which the party distraining is deemed a trespasser ab initio, rent. 
 and the plaintiff has been entitled to recover the full value of 
 the rent for which the distress was taken, provides, that where 
 any distress shall be made for any rent justly due, and any 
 irregularity or unlawful act shall be afterwards done by the 
 party distraining, or his agent, the distress shall not therefore 
 
 mitted in dis- 
 training for 
 
 (r) Chit. Forms, 584, 7th ed. Tidd, Forms, 607
 
 422 
 
 ILLEGAL DISTRESS. 
 
 Action for an 
 
 excessive 
 
 distress. 
 
 be deemed unlawful, nor the persons making it trespassers ah 
 initio ; but the parties aggrieved shall recover full satisfaction 
 for the special damage they shall have sustained, and no more, 
 in an action of trespass, or on the case, at the election of the 
 plaintiff. And no tenant shall recover in an action for any- 
 such unlawful act or irregularity, if tender of amends have 
 been made before action brought (s). 
 
 It was for some time assumed that under this section a 
 plaintiff might always recover nominal damages for an irregu- 
 larity, but it is now settled that the plaintiff can only recover 
 where actual damage is proved {t). 
 
 The following are the principal species of irregularity for 
 which actions may be brought : 
 
 Actions for excessive distress arise out of the statute 
 52 Hen. III. c. 4 (w), w^hich provides that distresses shall be 
 reasonable and not too great ; and he that taketh great and 
 unreasonable distresses shall be grievously amerced for the 
 excess of such distresses. Such actions, in the days when forms 
 of action were of importance, were always in case {x). Damages 
 for an excessive distress, where the goods have been sold, will 
 depend upon the loss and inconvenience the plaintiff has been 
 put to by having an unnecessary amount of his goods taken from 
 him. If the amount for which they sold beyond the claim 
 against him has not been returned to him, of course it will 
 form part of the damages [y). In order to estimate whether 
 the amount taken was excessive or not, their value must be 
 calculated according to the sum which they would fetch at a 
 broker's sale, not at the price which could be obtained for them 
 from an incoming tenant in the same line of business as the 
 plaintiff (2), because the former is their value for the purpose 
 
 (s) 11 aeo. IT. c. 19, s. 20. 
 
 it) Rodrjers V. Parker, 18 C. B. 112 ; 25 L. J. C. P. 220 ; Lucas v. 
 Tarhtnn, 3 H. & N. 116 ; 27 L. J. Ex. 246. 
 
 (m) Probably the action would lie even independently, for Lord Coke says of 
 this statute, it agreeth with the reason of the common law. 2 Inst. 107 ; 1 
 M. & W. 447. 
 
 {x) Woodcraft v. Thompson, 3 Lev. 48 : Ljinne v. Moody, 2 Stra. 851 : 
 Hughes V. Browne, 7 Ir. L. 492. See as to the amount of interest in the 
 goods distrained which will enable the plaintiff to support an action, Fell v. 
 Whitakcr, L. E. 7 Q. B. 120 ; 41 L. J. Q. IJ. 78. 
 
 (?/) See joe?- Parke, B., 1 M. & W. 448. 
 
 (:) Wdls V. Aloodi/, 7 C. & P. 59. The price realised at the sale is not a 
 conclusive test of the value : Smith v. Ash forth, 29 L. J. Ex. 259. There 
 substantial damages were recovered, thougli the sale did not realise the rent due.
 
 ILLEGAL DISTRESS. 423 
 
 of satisfying the defendant's demand. AYliere, however, the 
 declaration makes no mention of a sale, either as special 
 damage, or by way of substantive complaint, damages can only 
 be recovered in respect of the detention up to the time they 
 were sold, and not in respect of the sale itself (a). In a 
 modern case, in which there had been no sale, and no actual 
 damage was shown to have been sustained, the Court of 
 Exchequer were of opinion, that in every case of excessive dis- 
 tress there must be some loss or inconvenience, for which a jury 
 ought to be told that they must find some damages, either 
 nominal or substantial {h). 
 
 On the other hand, when the distress is so excessive on the 
 face of it, that some of the things must be supposed to have 
 been taken without shadovv of claim, as where G ozs. of gold 
 find 100 oz. of silver were taken for a debt of Gs. 8^/., trespass 
 will lie (c). 
 
 No action at all is maintainable for distraining for more rent 
 than is due, provided the distress is not excessive as to that 
 which is due ; and an assertion that the distress was made 
 maliciously, will not render a count to that effect good (d). 
 
 By s. 3 of 2 W. & M. sess. 1, c. 5, loose corn or hay may Irregularity in 
 be distrained for rent, but it cannot be removed from the land corn or°lmv or 
 till it is either replevied, or sold in default of replevying. growing crops. 
 
 By 11 Geo. II. c. 10, s. 8, growing crops may be seized for 
 arrears, and cut, cured, and laid up when ripe in barns, &c., 
 upon the premises, and appraised or sold in the same manner 
 as other goods or chattels ; and the appraisement to be taken 
 when cut, gathered, cured, and made, and not before. 
 
 Tender of rent in arrear, and cost of charges of making the Effect of 
 distress, and which shall have been occasioned thereby, at any *^"''^'"' 
 time before the corn, &c., is ripe, cut, and cured, will put an 
 end to the distress (e). 
 
 (a) Thompson v. Wood, 4 Q. B. 493. 
 
 (b) Chandler v. Doulton, 3 H. & C. 553 ; 34 L. J. Ex. 89. 
 
 (c) Hutchins v. Chambers, 1 Burr. 579 : Crowther v. liamsbottom, 7 T. 
 «58. 
 
 {d) Tancred v. Leyland, 16 Q. B. 669 : GJynn v. Thomas, 11 Ex. 870 ; 
 25 L. J. Ex. 125 : Stevenson v. Newnham, 13 C. B. 285 ; 22 L. J. C. P. 110 ; 
 overruling Taylor v. Henniker, 12 A. & E. 488. It is settled law that a 
 distrainer ma.j justify for any cause which existed at the time, although he 
 set up a different one : Phillips v. Whitsed, 2 E. & E. 804 ; 29 L. J. Q. B. 
 164. 
 
 (e) 11 Geo. II. c. 19, s. 9.
 
 424 ILLEGAL DISTRESS. 
 
 Amount of Where there has been an excessive distress by taking corn or 
 
 amages. ^^^^, ^^^^^ (under 2 W. & M. sess. 1, c. 5. s. 3), or growing crops 
 
 (under 11 Geo. II. c. 19), the measure of damage is not the full 
 value of the crops, beyond the amount which ought to have 
 been taken, because the tenant is not ultimately deprived of 
 them. It is simply such a sum as is a compensation for the 
 additional expense of a distress, and of keeping possession of 
 that part of the crops which it was unnecessary to take during 
 the time of possession ; and some compensation for the loss of 
 absolute ownership and power of disposition for the same time ; 
 or if the tenant has replevied, then a compensation for the 
 additional expense and inconvenience of replevying to a larger 
 amount. If movables have been distrained on along with 
 growing crops, the probable value of the latter cannot be taken 
 as a present satisfaction of the rent to that amount, so as to 
 make the landlord a wrong-doer, by taking and selling all, or, 
 as the case may be, the excess of movable chattels, and liable 
 for their value. He has a right to apply those which are 
 immediately productive in satisfaction of the rent pro tanto, 
 and hold a reasonable part of the present unproductive fund as 
 a security for the balance (/). 
 Irregularity lu One case arising out of the latter statute, it was decided 
 
 does not make that a sale of growing crops was wholly void unless the pro- 
 visions of the act were complied with ; and that no action could 
 be maintained for consequential loss arising from a premature 
 sale, since it was such a nullity that no legal damage could be 
 sustained from it {g). This decision, however, is opposed to a 
 later one where a similar question arose. A landlord seized 
 growing crops under a distress for rent, and sold them before 
 they were cut, contrary to the statute. They were afterwards 
 cut and carried away by the purchaser. It appeared that they 
 sold for the full amount they would have fetched, if sold at the 
 proper time ; and that rent to an amount greater than their value 
 was due. Nominal damages only were given. Lord Lyndhurst, 
 C. B., said, " By the terms of the Act, the party injured by an 
 unlawful act, committed after a lawful distress, is only to 
 recover to the amount of the damage he has actually sustained." 
 
 (/) Per Parke, B., Piggott v. Births, 1 M. & W. 441, 451. 
 {y) Owen v. Legh, 3 B. & A. 470.
 
 ILLEGAL DISTRESS. 425 
 
 Bayley, B., asked, "What damage is the plaintiff entitled to ? 
 Why, the difference between the amount for which the crops 
 would have sold, if the sale had been regular, and that which 
 they actually sold for " (h). The form of the rule in this case 
 merely rendered it necessary for the Court to decide that the 
 plaintiff was not entitled to more than nominal damages, but 
 the grounds of decision would have justified a verdict for the 
 defendant ; and it has since been decided in a similar case, 
 that where the plaintiff fails to prove special damage, he is not 
 entitled to nominal damages, but the defendant is entitled to 
 the verdict (/). 
 
 At Common I^aw the distrainor could not seh the property Selling without 
 seized, but by 2 W. & M. sess. ] , c. 5, s. 2, where goods are ^Pi^-aisement. 
 distrained for rent, and the tenant or owner of the goods shall 
 not, within five days {k) next after such distress taken, and notice 
 thereof (with the cause of such taking) replevy the same, then 
 after such distress and notice and expiration of five days the 
 distrainor may cause the goods to be appraised by two sworn 
 appraisers, and after such appraisement may sell fur the best 
 price that can be gotten at the time (/), leaving the overplus, 
 if any, in the hands of the sheriff, &c., for the owner's use. By 
 the recent Law of Distress Amendment Act, 1888, appraisement 
 is abolished except where the tenant or owner of goods requires 
 it (m). In an action for selling goods distrained, without 
 appraisement, the measure of damages is the value of the goods 
 minus the rent due (n). 
 
 Actions also lie upon the equity of the above statute, for not other in-egu- 
 removing the distress in a reasonable time (o) ; though the ^^'^'^'^^^ 
 plaintiff may, if he choose, sue for the continuing upon the 
 premises after five days, as an independent trespass (/>). And 
 similarly for not giving notice, and not selling at the best 
 
 [h) Prondlove v. Tivemlojo, 1 C. & M. 326. 
 
 (^) Rod:,ers v. Parker, 18 C. B. 112 ; 25 L. J. C. P. 220. 
 
 {k) To be extended to fifteen if the tenant or owner of the goods desires ; 
 51 & 02 Vict. c. 21, s. 6. 
 
 [l) The statute contemplates a sale. The landlord's taking the goods at the 
 condemned price does not divest the tenant's property in them : King v. 
 England, 4 B. & S. 782 ; 33 L. J. Q. B. 145. 
 
 (jrt) 51 & 52 Vict. c. 21, s. 5. 
 
 (n) Biggins v. Goode, 2 Cr. & J, 364 : Knight V. Egcrton, 7 Ex. 40/. 
 
 ((*) Com. Dig. Distress, I. 
 
 {p) Griffin v. Scott, 2 Stra. 717.
 
 426 
 
 ILLEGAL DISTRESS. 
 
 Driving cattle 
 into another 
 county. 
 
 Cases to which 
 11 (ieo. II. 
 c. 19, s. 19, 
 does not apply. 
 
 price (q). And apparently for locking np tlie whole of the 
 premises and excluding the tenant (r). The damages in all 
 such instances will depend npon the actual loss the plaintiff can 
 prove. In an action for not selling a distress at the best price, 
 he was allowed to show that the goods were left standing in the 
 rain, and that they were improperly lotted (s). Want of notice 
 does not render a distress invalid (/). 
 
 By 52 Hen. III. c. 4, and 1 & 2 Ph. & M. c. 12, s. 1, it is 
 enacted that no distress of cattle shah be driven out of the 
 hundred, rape, wapentake, or lathe where such distress is taken, 
 except it be to a pound overt within the same shire, not above 
 three miles distant from the j)lace where the said distress is 
 taken ; and that no cattle or other goods distrained or taken 
 by way of distress, for any matter or cause at one time, shall 
 be impounded in several places, Avhereby the owner shall be 
 constrained to sue several replevies for the delivery of the 
 said distress ; penalty for every such offence 100/., and treble 
 damages. 
 
 In all these cases where the first taking of the distress is 
 lawful, a subsequent disobedience to the statute does not make 
 it void, so as to enable the other party to sue for trespass ; 
 therefore where the action is for driving into another county (u), 
 it must be framed upon the statute. The damages would pro- 
 bably be such as the Act suggests, viz., the additional trouble 
 and expense of replevying. This Act, it will be observed, 
 equally applies to cases of damage feasant. 
 
 It will be readily seen that there are many cases to which the 
 above section (x), in favour of distresses where there has been 
 a subsequent irregularity, does not apply. It is expressly con- 
 fined to distresses for rent, and therefore the law as to damage 
 feasant is left where it was before. ISTor does it apply where 
 the distress is void ab initio ; as, for instance, where no rent 
 was due at all (y) ; or where the distress was effected by breaking 
 
 (?) Com. Dig. Distress, D. 7 ; 2 Chitt. PI. 537. 
 (V) Smith V. Ashforth, 2y L. J. Ex. 259. 
 
 (s) Potjnter v. Buckley, 5 G. & P. 512 ; and see Rid'jurnj v. Stafford, 6 
 Ex. 404 : Roden v. Eyton, 6 C. B. 427. 
 (i) Trent v. Hunt, 9 Ex. 14. 
 (u) Gimhart v. Pelah, 2 Stra. 1272, 
 (x) 11 Geo. II. e. 19, s. 19. 
 ((/) Ireland v. Johnson, 1 Bing. N. C. 162.
 
 ILLEGAL DISTRESS. 
 
 427 
 
 open an outer door (z) ; or by opening a closed window (a), or 
 after sunset and before sunrise (b) ; or where the goods taken 
 were not distrainable at all In all these cases actions for 
 trespass or conversion may be maintained, and the actual value 
 of the things recovered (c). And where a distress is made by 
 virtue of 2 W. & M. sess, 1, c. 5, for rent pretended to be due, 
 and none is really in arrear, the owner of the goods distrained 
 may recover double their value and full costs (d), and the jury 
 ought to be directed to give this amount (e). Nor does it 
 apply to any indepeadent act, irrespective of the distress ; as, 
 for instance, where a landlord, after making a distress, turned 
 the tenant out of possession (/). Nor where lodgers' goods 
 are sold before the expiration of live days (g). 
 
 A distress will also be void ai initio, when made after tender. 
 But tender after distress, and before impounding, makes the 
 detainer, and not the original taking, wrongful ; and at Common 
 Law tender after the impounding makes neither the one nor 
 the other wrongful, for then it comes too late, because the 
 cause is put to the trial of the law to be there determined (h). 
 But an action upon the equity of the statute, 2 W. & M, sess. 1, 
 c. 5, s. 2, will lie where the landlord has proceeded after tender, 
 when the tender took place after the impounding but within 
 the five days and before sale (i). 
 
 The tender must be made to some person authorised to 
 receive the money, and a man merely left in possession has no 
 implied authority at law to do so (Jc). Before the distress is 
 
 Efifect of 
 tender. 
 
 What tender 
 is sufficient. 
 
 (z) Broivn v. Glenn, 16 Q. B. 254. 
 
 (rt) Xash V. Lucas, L. R. 2 Q. B. 590. 
 
 (&) Tutton V. Darke, 5 H. & N. 647 ; 29 L. J. Ex. 271. 
 
 (c) Keen v. Priest, 4 H. & N. 236 ; 28 L. J. Ex. 157 : Attach v. Bram- 
 toell, 3 B. & S. 520 ; 32 L. J. Q. B. 146 : Sivlre v. Leach, 18 C. B. N. S. 
 479 ; 34 L. J. C. P. 150 : Nargett v. Nius, 1 E. & E. 439 ; 28 L. J. Q. B. 
 143. 
 
 (d) S. 5. 
 
 (e) Masters v. Farris, 1 C. B. 715. 
 
 (/) Etherton v. Popplewell, 1 East, 139. 
 
 Ig) 34 & 35 Vict. c. 79, ss. 1, 2: Sharp v. Fowle, 12 Q. B. D. 
 L. J. Q. B. 309. 
 
 (A) Six Carpenters' Case, 8 Rep. 147, a ; Gilb. Dist. 50, 67 ; 1 Smith's 
 L. C. 144, 9th ed. See as to tender after distress and before impounding, 
 Loving v. Warburton, E. B. & E. 507 ; 28 L. J. Q. B. 31 ; as to tender after 
 impounding, where the distress was taken, damages feasant : Sheriff v. James, 
 1 Bing. 341 ; Anscomb v. Shore, 1 Camp. 286 ; 1 Taunt. 261, S. C. 
 
 (t) Johnson v. Upkam, 2 E. & E. 250 ; 28 L. J. Q. B. 252 ; dissenting 
 from Ellis v. Taylor, 8 M. & W. 415 ; and Laddv. Tliomas, 12 A. & E. 117. 
 
 [k) Boulton V. Reynolds, 2 E. & E. 369 ; 29 L. J. Q. B. 11. 
 
 385 : 53
 
 428 
 
 ILLEGAL DISTRESS. 
 
 What makes 
 a party a 
 trespasser 
 ah inilio. 
 
 Trespass ah 
 inilio as to 
 part of the 
 distress. 
 
 actually made a tender of rent without expense is sufficient, 
 though the warrant has been delivered to the broker for 
 execution (/). 
 
 To make a party trespasser ah initio, there must be some act 
 done, as seizing after tender, or working or killing a distress 
 taken damage feasant : mere non-feasance, as refusing to return 
 a distress upon tender made after seizure, will not make the 
 original taking, but only the subsequent detainer, wrongful (in). 
 So where customs'-officers detained dutiable goods at the custom- 
 house, under an unfounded belief that they were prohibited and 
 liable to forfeiture, this was held not to be a trespass, as they 
 had come into their possession originally without any trespass 
 or seizure on their part (;?). 
 
 Even where a party is, or becomes a trespasser ah initio, as 
 to part of the thing distrained on, this does not make the dis- 
 tress void as to the rest. Accordingly where several barrels of 
 beer were distrained for rent, and the distrainor drew beer out 
 of one of them, Lord Holt held, that it made him a trespasser, 
 ah initio, as to that one only (o). This decision was acted upon 
 in a modern case under the following circumstances. The 
 defendant distrained for rent, and included in the inventory 
 looms then at work, and without which there was a sufficient 
 distress. The defendant remained in possession five days, and 
 then withdrew on being paid rent and costs. The judge told 
 the jury, that the distraining the looms entitled the plaintiff to 
 a verdict for their value ; and that as no damage was proved, 
 it was for them to say, whether they would give more than the 
 amount paid to redeem them. They found a verdict for the 
 sum paid. A new trial was granted, unless plaintiff would con- 
 sent to nominal damages being entered. Lord Abinger, C. B., 
 said, " The Six Carpenters' case leaves it an open question how 
 far the party becomes a trespasser, ah initio, as to the whole 
 distress by an excess as to part. It is very reasonable that he 
 
 (l) Bennett v. Hayes, 5 H. & N. 391 ; 29 L. J. Ex. 224. In this case the 
 plaiutiffs recovered against the landlord's agents who liad signed the distress 
 warrant. 
 
 {m) Six Carpenters Case, 8 Rep. 146, a. ; 1 Smith's L. C. 144, 9th ed. 
 If the distrainor unlawfully woiks the distress, the owner may retake it : 
 Smith V. Wrifjht, 6 H. & N. 821; 3i L J. Ex. 313. The 'distrainor is 
 bound to keep the cattle in a fit and prouer place : BiijneU v. Clark, 6 H. 
 k N. 485 ; 29 L. J. Ex. 257. 
 
 {n) Jacohsohn v. Blake, 6 M. & G. 919. 
 
 (o) Bod V. Monr/er, 6 Mod. 215.
 
 ILLEGAL DISTRESS. 429 
 
 should not, but that his liabUity shouki be Umited according to 
 the doctrine laid down by Lord Holt. This is only a construc- 
 tive trespass as to the looms, and yet the plaintiff is asking for 
 damages to the amount of the whole rent. It is the same as if 
 the goods had been sold, and the value of the looms had been 
 returned to him" {])). 
 
 By 51 H. III. c. 4, no man shall be distrained by his beasts Things <lis- 
 that gain his land, nor by his sheep for any debt, if there can ^"j^l^^^'lf *^°'^' 
 be found another distress, or chattels sufficient whereof they 
 may levy the distress, or that is sufficient for the demand ; 
 except impounding of beasts that a man findeth in his grounds 
 damage feasant {q). And the same conditional exemption ex- 
 tends to the instruments of a man's trade or profession (r). 
 But a seizure of such property will not be tortious, where the 
 only other distress consists of growing crops. The landlord 
 has a right to resort to those subjects of distress which are 
 immediately available by sale, and is not bound to take those 
 which cannot be productive till a future period (s). 
 
 Statute 17 Geo. II. c. 38, s. 8, contains provisions similar to Poor rates, 
 those of 11 Geo. 11. c. 19, ss. 19 & 20, in case of distresses 
 for poor rates. 
 
 Statute 11 Geo. II. c. 19, s. 3, gives landlords a right of Fraudulent 
 action to recover double the value of goods fraudulently carried ^„o™i°s!^ 
 off the premises to avoid a distress. This, however, only 
 applies to goods which at the time of removal are the goods 
 of the tenant. Where the holder of a bill of sale upon the 
 tenant's furniture removed it for the purpose of avoiding dis- 
 tress, it was held that no action lay under the statute ; and it 
 made no difference that the removal was made by the authority 
 of the tenant within the five clear days during which, under 
 the Bill of Sales Act, 1882, s. 13, the holder was bound to leave 
 the goods on the premises after seizure, the provision being for 
 the benefit of the grantor of the bill, not of the landlord (0. 
 
 ip) Harvey v. Poroch, 11 M. & W. 740. 
 
 (g) This statute applies to the sheep of an undertenant of the landlord's 
 tenant. Curt colts and young steers not broken in or used for harness or the 
 plough, are not within it as beasts which gain the land : Keen v. Priest, i 
 H. & N. 236 ; 28 L. J. Ex. 157. 
 
 (r) 1 Inst. 47, a : Simpson v. Hartopp, Willes, 512. 
 
 (s) Pini/ntt V. Birth'^, 1 M. & W. 441. 
 
 {t) Toinlinson v. Consolidated Credit and Mortgaje Corporation, 24 Q. B. 
 D. 135.
 
 CHAPTER XIV. 
 
 1. Injury to land (jcncrcdbj. \ 3. Injury to casements. 
 
 2. Mesne Projits. \ 
 
 Having in the preceding chapter discussed those actions 
 which are brought for wrongs affecting personal property, I 
 shall employ the present chapter in examining those which 
 aflFect real property. 
 Injuries to 1- Inactions for injuries to land, the measure of damages 
 
 l'*»^l- is the diminished value of the property, or of the plaintiff's 
 
 interest in it, and not the sum which it would take to restore 
 it to its original state. This was decided in a case where the 
 defendant had cut a ditch in the plaintiff's field, and carried 
 away the soil («). And so where the defendant has knocked 
 down the plaintiff's house, built upon his land, which is on 
 lease, the proper measure is the amount by which the selling 
 price of the premises would be reduced by the wrongful act {b). 
 This amount is to be estimated by the value of the old house, 
 and not by the sum it would cost to build a new one (c). Even 
 if the house were only leased to the plaintiff, who was himself 
 under a covenant to repair, the same principle w^ould apply, for 
 his liability on the covenant is calculated in the same way (d). 
 Of coiu'se, special loss or injury to the occupant might give rise 
 to additional damages. 
 Damages vary The damages will vary considerably, according to the plain- 
 accordiiigto ^j^,g interest in the land. Tliis is obviously iust, both to 
 
 plaintm s inte- j j ' 
 
 rest iu the prevent the plaintiff getting extravagant recompense when his 
 interest is on the point of expiring, or very remote, and to 
 
 («) Jones V. Gooday, 8 M. & W. 146. 
 (h) Iloskimj V. Phillips, 3 Ex. 168. 
 
 (r) Lukiny. Godsall, Peake, Ad. Ca. 15 : Dodd v. Holme, 1 Ad. & Ell. 
 493, 5(i7 : Hide v. Thorrihoroufjii. 2 C. & K. 250. 
 
 (c/) Yates v. Duniter, 11 Ex. 15 : WhitJiu^u v. Kersliaw, 16 Q. B. D. 613. 
 
 land.
 
 INJURIES TO LAND. 
 
 prevent the defendant being forced to pay for the same damage 
 several times over. The same act may give rise to different 
 injuries ; the tenant may sue for the injury to his possession, 
 and the landlord for the injury to liis reversion (e). And so 
 where several are entitled in succession, as tenant for life, in 
 tail, in fee, each can only recover damages commensurate to 
 the injury done to their respective estates (/). Hence where 
 a stranger cuts down trees, the tenant can only recover in 
 respect of the shade, shelter, and fruit, for he was entitled to 
 no more ; and so it is where the occupant is tenant in tail 
 after possibility of issue extinct ; but the reversioner or re- 
 mainder-man will recover the value of the timber itself ((/). 
 And so where the action was by the owner of a house against 
 his lessee for opening a new door, whereby the house was 
 injured, and the plaintiff was prejudiced in his reversionary 
 interest ; the jury found that the house was in no way injured 
 by the act complained of, upon which nominal damages were 
 entered for the plaintiff, subject to a special case ; it was held 
 that there ought to be a new trial, that the jury might say 
 whether the reversionary right had been injured, which it 
 might be by the evidence of title being weakened, though the 
 house was as good as ever {h). But a simple trespass, even 
 though accompanied by a claim of right, is not necessarily in- 
 jurious to the reversionary estate. To entitle a reversioner 
 to sue, the wrong complained of must be in its nature perma- 
 nent (i). Temporary nuisances, as for example, noise or smoke, 
 will not o-ive a reversioner a right of action, even though his 
 
 431 
 
 (g) Jefferson v. Jefferson, 3 Lev. 130 : Jesser v. Gifford, 4 Burr. 2141. 
 
 (/I A'relynx. liaddish, Holt, N. P. 543 : Johnstone v. Hall, 2 K. i J. 
 414 ;'25 L. J. Cii. 462. 
 
 (>j) Bcdingfieldy. Onslow, 3 Lev. 209, 4 Rep. 63, citing 27 H. VL Waste, 
 8. Where fruit trees were destroyed by fire through the negligence of the 
 defendants, the measure of damages was held in the Supreme Court of New 
 York to be the value of the trees as they stood on the land, not the diminished 
 value of the land. It was laid down that although a fruit tree, differing from 
 a timber tree, has strictly no commercial value as a tree independent of the 
 land which sustains it, it has a value capable of estimation, having regard to 
 its average annual products : Whitbeck v. New York Central Rail Road Co., 
 36 Barbo'^r (N. Y.) 644. 
 
 {h) Young v. Spencer, 10 B. & C. 145. But that was an action on the case 
 in the nature of waste by a reversioner against his tenant, and what was said 
 in it must be construed with reference to the subject matter ; per Parke, J., 
 in Baxter v. Teuilor, 4 B. & Ad. 72. 
 
 (0 Bccxter v. Taylor, 4 B. &: Ad. 72.
 
 432 INJURIES TO LAND. 
 
 tenants leave in consequence, and the rent which can be ob- 
 tained for the premises is reduced {Jc). 
 
 Tlicsc principles were applied in the case of Rtist v. Victoria 
 Graving Dock Co. (/), where considerable complications arose. 
 The plaintiff was owner of a building estate, which by reason of 
 the defendant's negligence was overflowed by flood. Part of 
 the land was covered with houses (A) which were in the plain- 
 tiff's possession ; another part with houses (B) erected by 
 builders under building leases. Other parts were the subject of 
 building agreements under which houses (C) were in course of 
 erection, and the plaintiff was bound to make, and had made, 
 advances to the builders on the security of them. As regards 
 A. it was held that the plaintiff was entitled to the cost of repairs 
 and to loss of rental during the time the repairs were going on. 
 The referee allowed a further sum as representing a reduced 
 rental for four years, owing to the prejudice against the locality 
 by reason of the flood. It was held that such damage was too 
 remote to be allowed for, not being the natural result of the 
 flood. As to B it was admitted that there was no damage done 
 by the flood which would last to the end of the leases. It was, 
 however, said that the usual way of working building property 
 was to sell the ground rents as building advanced, and so get 
 capital to continue operations. That the flood affected the 
 value of the rents, and that the plaintiff" ought to be allowed a 
 sum representing the depreciation. This was rejected. Cot- 
 ton, L. J., said, " On the general rule he cannot get any 
 damages for any wrongful act of the defendant's, unless the 
 damage is one which will endure and be continuing when the 
 reversion becomes an estate in possession. Now sale is not the 
 natural way of dealing with a reversion, and if it were admitted 
 that every wrongful act which lessens its selling value gives the 
 reversioner a right to damages, the general rule I have men- 
 tioned, that a reversioner can only recover damages for per- 
 manent injury, would be entirely done away with." As to 0, 
 the plaintiff was only interested in them as a security for his 
 advances. The proper course was " to ascertain what sum would 
 
 (A-) Mitmford v. Oxford, Worcester and Wolverhampton Ry. Co., 1 H. & 
 N. 34 ; 25 L. J. Ex. 265 : Simpson v. Savaje, 1 C. 15. N. S. 347 ; 26 L. J, 
 C. P. 50. 
 
 (0 36 Ch. D. 113.
 
 INJURIES TO LAND. 
 
 433 
 
 interest 
 
 have been required to repair the injury to the structure of the 
 houses caused directly by the flood ; and then to ascertain how 
 far the houses before they were repaired would have been a 
 sufficient security for the j^laintifi^'s advances, and if there 
 was a deficiency, then to give the plaintiff so much of the sum 
 required to repair the damage to the houses, as in addition to 
 the value of the houses in their damaged state would have been 
 sufficient to make good the advances." Finally it was held, 
 that the defendants were properly answerable for such a sum 
 as represented the damage caused to the plaintiff by the delay 
 in letting the vacant land which was the consequence and the 
 direct effect of the flood. 
 
 For the same reason the plaintiff must show what his interest Evidence of 
 is, and its duration. A tenant can only obtain nominal 
 damages, unless he gives evidence of the time for which he is 
 entitled to occupy Qn) ; and an owner who has parted with the 
 right to the surface of the soil, as, for instance, by granting a 
 right of pasturage over it, with exclusive possession, cannot sue 
 at all for any trespass which does not affect the sub-soil {n). 
 
 A purchaser of land is entitled on completion to receive the 
 full value of the property for which he bargained. If through 
 any fault of the vendor, or of any person for whom the vendor 
 is answerable, the property has suffered in value, the purchaser 
 is entitled to such a sum as wiU be a complete compensation (o). 
 
 There is one curious case which seems at first to be at 
 variance with this principle. In reality, however, upon the 
 grounds upon which it was decided, it is in perfect accordance 
 with it. J. J. demised land to the plaintiff at an annual rent 
 for twenty-one years, with liberty to dig half an acre of brick 
 earth annually ; the lessee covenanted that he would not dig 
 more, or if he did, that he would pay an increased rent of 375/. 
 per half-acre, being after the same rate t/iat the whole brick earth 
 was sold for. A stranger dug and took away brick earth. The 
 plaintiff sued him, and on verdict for plaintiff, the question was 
 whether he was entitled to the whole value of the earth, or only 
 in proportion to his interest in it. It was admitted that there 
 
 Purcliaser of 
 land. 
 
 Riglit of 
 tenant to carry 
 away soil. 
 
 (m) Twyman v. Knowles, 13 G. B. 222 ; 22 L. J. C. P. 143 : Rust v. 
 Victoria Graving Dock Co., 36 Ch. D. at p. 119. 
 (n) Cox V. Glue, 5 C. B. 533. 
 (o) Clarke v. Ramuz, [1891] 2 Q. B. 456 ; 60 L. J. Q. B. 679. 
 
 M.D. F F
 
 434 INJURIES TO LAND. 
 
 -^as more brick earth left than he could use up to the end of his 
 term at the rate of half an acre per year. It was held by Mans- 
 field, C. J., and Heath, J. (Chambre, J. contra), that the tenant 
 Avas entitled to recover the whole value of the brick earth. 
 They said that the lease amounted to an absolute sale of the 
 whole brick earth, but the tenant was not to pay for the whole,, 
 unless he used the whole. Now supposing two actions to be 
 brought by the tenant and the landlord, it is clear that the sum 
 of damages recovered must equal the full value of the earth. 
 But they said the landlord could only recover nominal damages, 
 because non constat that any of the earth would ever be left for 
 the benefit of the reversion, as the tenant had the right of 
 taking it away. Nor could he suffer by so much earth, upon 
 which the tenant might pay additional rent, being taken away. 
 Because whether it was taken away by the tenant himself or a 
 stranger, he would equally have a right to recover on his cove- 
 nant. If then the landlord could only obtain nominal damage, 
 of course the full amount must be recoverable by the tenant. 
 On the other hand, Chambre, J., was of opinion, that the pro- 
 perty in the extra earth remained in the lessor, subject to the 
 lessee's right to purchase it at a fixed price. That the beneficial 
 interest of the plaintiff in the earth taken by the defendant 
 consisted in the difference between its value and the price he 
 must have paid for it had he taken it himself. That all the 
 remaining interest was in the reversioner. That the latter could 
 maintain no action against the lessee upon his covenant for the 
 value of the earth taken by a stranger. Consequently, that if 
 the lessee recovered the whole value he would receive so much 
 money of his lessor's which he could not be made to refund (^). 
 It is clear that whichever side was right, the principle that 
 neither could recover more than the amount of their interest 
 was admitted. 
 Reservation of The same principle was applied under different circum- 
 rigbts on sur- gtances in the following case. A conveyance was made in fee, 
 
 face to grantor . . ° ■' ' 
 
 of fee. subject to a reservation to the grantor of mines and minerals, 
 
 and extensive powers of occupying and using the surface for 
 the power of working. The grantee was bound to permit the 
 grantor to do everythingwhich was necessary for the exercise of 
 
 {j:)) AttcrsoU v. Stevens, 1 Taunt. 183.
 
 INJURIES TO LAND. 435 
 
 tlie powers reserved to him. On the other hand, the grantor 
 was bound annually to make reasonable compensation to the 
 grantee for daaiage or spoil of ground occasioned by the exer- 
 cise of these powers. When a question of compensation arose, 
 it was contended on behalf of the grantor, that the value of the 
 ground must be taken as diminished by the restrictions imposed 
 upon its use. But it was held that the grantee was at liberty 
 to use the land for any purpose to which it was applicable, so 
 long as he did not interfere with the minerals, and that the 
 compensation due to him for damage occasioned by the exercise 
 of the powers reserved, must be estimated with reference to the 
 value of the land for any purpose to which an ordinary owner 
 might put it. In other words, that the powers reserved to the 
 grantor merely marked out what damage he might lawfully do, 
 if he chose to pay for it (q). 
 
 "We have had occasion before to examine the case of a tres- Trespass by 
 pass committed by mining and carrying away the minerals ""^"^^"S- 
 severed (r). Here the most essential part of the wrong con- 
 sists in the removal of the mineral. It is to be estimated at 
 its value at the time the defendant began to take it away ; that ■ 
 is as soon as it existed as a chattel. This value will be the 
 sale price at the pit's mouth, after deducting the expense of 
 carrying it from the place in the mine where it was got to the 
 pit's mouth, but not the cost of severing it. Separate compen- 
 sation must be given for all injury done to the soil by digging, 
 and for the trespass committed in dragging the mineral along 
 the plaintiff's adit (s). It seems, however, that where there is 
 a real disputed title the case is different, and the minerals are 
 to be valued as if the soil in which they lay had been purchased 
 from the plaintiff" (t). 
 
 Where there has been a total deprivation of land, the Total depriva- 
 damages of course are such as will indemnify the plaintiff for *^°'^ °^ ^^"^'^• 
 the loss of his property. In the absence of better evidence, a 
 
 {q) Mordue v. Dean and Chapter of Durham, L. R. 8 C. P. 336 ; 42 L. J. 
 C. P. 114. 
 
 (r) Ante, p. 386. 
 
 (s) Morgan v. Poivell, 3 Q. B. 278 : Martin v. Dorter, 5 M. & W. 352 : 
 WUd V. Holt, 9 M. & W. 672. 
 
 (t) Per Parke, B., 9 M. & W. 673 : JFood v. Moreicood, 3 Q. B. 440, n. : 
 United Merthtjr Collieries Co., L. R. 15 Eq. 46 : Jtgon v. Vivian, L. R. 6 
 Ch. 742 ; 40 L. J. Cb. 389 : Job v. Potton, L. R. 20 Eq. 84 ; 44 L. J. Ch. 
 262. 
 
 F F 2
 
 INJURIES TO LAND. 
 
 When pro- 
 spective 
 damages may 
 be allowed 
 for. 
 
 When not 
 allowable. 
 
 fair way of arriving at the value will be to take the annual 
 amount of the produce, deducting all proper expenses, or the 
 annual rental actually or probably obtainable, and then to 
 capitalise the amount at such number of years' purchase as 
 represents the ordinary rate of interest (?<). 
 
 Another question which has been already discussed is, when 
 prospective loss arising from an injury to land may be allowed 
 for, and when it may not. The rule is that when such pro- 
 spective loss may be the subject of a fresh action when it occurs, 
 it cannot be allowed for beforehand, and vice versa (x). The 
 former is the case when the act complained of is a continuing 
 trespass upon the plaintiff's land, as, for instance, an unautho- 
 rised erection upon it (y) ; or is a continuing nuisance to it (s). 
 Accordingly, a former recovery is no bar to any number of 
 subsequent actions as long as the same cause continues ; other- 
 wise the defendant would be purchasing a right to commit a 
 wrong (a). And it makes no difference that the defendant has 
 no power to enter upon the land in question to remove the 
 source of complaint, and that he would be a trespasser if he did 
 so (J)). For the same reason, viz., that a continuing trespass is 
 a fresh ground of action every day, if part of the time during 
 which the trespass was continued is beyond the period of limi- 
 tation, damages can only be recovered for the trespasses within 
 such period (c). 
 
 The contrary rule obtains where the original wrong consists 
 of a single injury or act of destruction. Accordingly, where 
 the defendant had made an aperture in the plaintiff's mine, 
 through which the w^ater kept continually flowing into, and 
 drowning it, it was ruled that no fresh action could be brought 
 
 (u) McArthur v. Cornioall, [1892] A. C. 75 ; 61 L. J. P. C. 1 : Secretary 
 of State for India v. Shanmugaraya, L. R. 20 I. A. SO. 
 
 {x) Ante, pp. 102, 106. 
 
 iy) Holmes v. Wilson, 10 A. & E. 503. 
 
 [z) Shadwcll v. Hutchinson, 4 C. & P. 333 : Thompson v. Gibson, 7 M. & 
 W. 457. _ 
 
 (a) Ihid. It follows that evidence cannot be given of the diminution in 
 saleable value of the premises in consequence of the nuisance, because the 
 plaintiff, after recovering for such diminution, might bring a fresh action, for 
 the continuance of the nuisance : BaUishill v. Reed, 18 C. B. 696 ; 25 L. J. 
 C. P. 290. In a second action a jury will be jixstified in giving such damages 
 as may compel the defendant to abate it ; Ih. per Jervis, C. J., Shadicell v. 
 Hutchinson, supra. 
 
 (6) Thompson v. Gihsoti, uhi sup. 
 
 (c) WUkes V. Hungcrford Market Co., 2 Bing. N. 0. 281.
 
 INJURIES TO LAND. 437 
 
 for loss accruing subsequently. The damages in the first action 
 for making the aperture must be taken to have been a full com- 
 pensation not only for the act, but for all the consequences 
 which could arise from it (</). 
 
 Where the defendant is one of a number of co-trespassers, as Co-ti-espa.^sers. 
 a member of a hunt, he is liable for the whole of the damage 
 done (e), but not for any malicious motive which may have 
 actuated any others of the party (/). 
 
 Consequential loss resulting naturally from acts which are When conse- 
 in themselves part of the trespass, may be proved as sub- maTbe^ allowed 
 stantive damage, though it might be sued for as a distinct for as substan- 
 ground of action ; for instance, infection caught by plaintiff's ^^^'^ carnage. 
 cattle from the entry of diseased cattle into his land (g) ; but 
 where in trespass for breaking the plaintiff's house, evidence 
 was offered that his wife was so terrified by the defendant's 
 conduct that she took ill and died ; this was received not as 
 a ground for substantial damage, but merely as showing the 
 violence of the defendant's conduct (h). Such an event could 
 not be treated as a natural result of the trespass. ISTor can any 
 greater effect be given to loss arising from circumstances which 
 are in themselves only matter of aggravation, and not part of 
 the trespass. Trespass was brought for breaking and entering 
 plaintiff's dwelling-house, and, under a false and unfounded 
 charge that plaintiff had stolen property in her house, searching 
 the same, whereby the plaintiff was not only interrupted in the 
 enjoyment of her dwelling-house, but her credit was injured by 
 reason of a belief excited among her neighbours that she was a 
 receiver of stolen goods. Two objections were taken. First, 
 to the declaration, as uniting charges of trespass and slander 
 which have different periods of limitation. Secondly, to the 
 summing up of the judge, who had told the jury that if they 
 believed the plaintiff's witnesses, he thought there was some- 
 thing very like a charge of having stolen goods in her house, 
 and if so the damages undoubtedly ought not to be merely 
 
 (d) Clegg v. Dearden, 12 Q. B. 576. 
 
 \e) Hume v. Oldacre, 1 Stark. 35-2. See Paul v. Surnmerhayes, 4 Q. B. 
 D. 9 ; 48 L. J. M. C. 33, where an unsuccessful attemjjt was made to esta- 
 blish a right to pursue a fox over the land of another. 
 
 (/) Clark y. Newsam, 1 Ex. 131, 139. 
 
 (^r) Anderson v. Buckton, 1 Stark. 192. 
 
 \h) Huxley v. Berg, 1 Stark. 98.
 
 438 
 
 INJURIES TO LAND. 
 
 Several 
 trespasses. 
 
 Vindictive 
 damages. 
 
 nominal Bat Lord Ellenborongh said, "As to the exception 
 taken to the declaration, the trespass is the substantive allega- 
 tion, and the rest is laid as a matter of aggravation only. On 
 the other point it does not appear that the learned judge told 
 the jury that they might go beyond the damages for the tres- 
 pass, and consider the rest as a subject of substantive damage, 
 or in any other wise than as connected with the trespass, and 
 that is the constant course of considering it. In actions for 
 false imprisonment, the jury look to all the circumstances 
 attending the imprisonment, and not merely to the time for 
 which the party was imprisoned, and give damages accordingly. 
 So here, the breaking and entering the plaintiff's dwelling-house 
 for the purpose of searching it, and under the false charge, 
 constitutes the trespass, and the false charge was not left as a 
 distinct and substantive ground of damage " (/). 
 
 On the other hand, as many acts as the plaintiff chooses may 
 be joined iti the declaration, and allowed for as substantive 
 damage when they are themselves trespasses ; for instance, 
 entering his land and carrying away his trees, or chasing and 
 killing his cattle (Jc) or debauching his daughter (J). But in 
 such a case each act must be laid with all the legal requisites 
 to form a ground of action. Therefore, in trespass for entering 
 the plaintiff's dwelling-house and taking away certain goods 
 there, it was held that no damages could be given in respect 
 of the goods, as there was no allegation that they were the 
 property of the plaintiff (w). 
 
 In actions of trespass, even where there is no special 
 damage, the jury are not limited to the actual injury inflicted, 
 but may take all the circumstances into consideration : 500?. 
 were held not to be excessive damages where the defendant, a 
 man of rank, persisted in entering upon the plaintiff''s land, 
 and shooting his game, though required to desist, and con- 
 ducted himself in other respects in a violent and abusive 
 manner (w). 
 
 (t) Bracegirdle v. Orford, 2 M. & S. 77, 79. 
 
 (k) Anderson v. Buckton, 1 Stra. 192. 
 
 {I) Bennett v. Allcott, 2 T. R. 166. 
 
 (m) Pritchard v. Long, 9 M. & W. 666. 
 
 (n) Merest v. Harvey, 5 Taunt. 442. On the otlier hand, evidence of 
 asserted title would seem to be admissible in reduction of damages. See per 
 Erie, C. J , Skull V. Glenister, 16 C. B. N. S. at p. 103 ; 33 L. J. C. P. at 
 p. 188.
 
 MESNE PROFITS. 439 
 
 Injuries to land frequently arise from the operations of public Compensation 
 companies, acting within the powers given them by their acts. bTai^thority 
 In all such cases provisions are made for giving compensation of Parliament. 
 to the parties injured. The most important of these pro- 
 visions are contained in the Lands Clauses Consolidation Act 
 (8 Yict. c. 18), which is incorporated with every act authorising 
 a public company to purchase or take laud for its undertaking. 
 These statutory provisions for making compensation for lands 
 taken or injuriously affected under the authority of parliament ■ 
 do not come properly within the scope of this treatise, and the 
 cases decided upon them, and upon analogous clauses contained 
 in other acts, are now so numerous and important that it has 
 been thought useless to attempt to discuss them within the 
 limits which must be assigned to them here. The reader is 
 therefore referred to works in which the subject is specially 
 considered. 
 
 2. The action for mesne profits is in origin an action of tres- Mesne proSts. 
 pass, brought after a judgment in ejectment (o), to recover 
 damages for the previous occupation of the land. It may be Against whom 
 brought either against the person actually in possession of jj^-^tht ^ 
 the laud, at any time during the existence of the plaintiff's 
 title, though only a tenant (jj) or servant of the original 
 ejector {q) ; or against his landlord who let him into possession, 
 though such landlord be himself a tenant of the plaintiff, and 
 his underlessee has held over against his will (r). But when 
 the gi'ound of the action is the bare fact of possession, damages 
 can only be recovered for the time possession was actually 
 retained (s), and in no case can the plaintiff claim for any 
 period subsequent to an offer by the defendant to restore him 
 possession (/). 
 
 There are several instances in which the party entitled to Entry relates 
 
 , . , . . in , 1 back to origin 
 
 possession cannot maintam trespass before entry ; as a fessee ^f ^^^^^^ 
 for years {ii), heir reversioner, purchaser, or disseisee (.r), as- 
 
 (o) Under the present procedure it can be joined with the action for the 
 recovery of the land. Ord. 18, K. 2. 
 
 (p) Holcomh V. Rawhjns, Cro. Eliz. 540. 
 
 {q) Girdkstone v. Porter, Woodf. L. & T. 653, 7th ed. ; by Harrison and 
 Horn. 
 
 (»•) Ibhs V. Richardson, 9 A. & E. 849 : Boe v. Uarhw, 12 A. & E. 40. 
 
 (s) Girdlestone v. Porter, ubi sup. 
 
 it) 9 A. & E. 853. 
 
 (m) Bac. Abr. Lease, M. 
 
 (x) Com. Dig. Trespass, B. 3.
 
 440 
 
 MESNE PROFITS. 
 
 Effect of judg- , 
 ment in eject- 
 ment. 
 
 Damages. 
 
 signee {y), or a parson before induction (z). But execution of 
 the writ of possession, or actual possession taken after a judgment 
 in ejectment, entitles the plaintiff to recover damages for any- 
 period over which he can prove a right to possession, even prior 
 to the day of demise laid iu the declaration under the old form. 
 The reason is, that the entry when made relates back to the 
 origin of the title, and all who occupied in the meantime, by 
 whatever title they came in, are answerable to him for their 
 occupation (ci). But where the party in possession is not a 
 trespasser at all, until his title \z made void by entry, as where 
 he holds against tlie reversioner or remainderman by virtue of a 
 fine levied by tenant for life, mesne profits can only be recovered 
 from the date of such entry (/>). Even in equity it seems there 
 is no remedy (c). 
 
 By 15 & 16 Yict. c. 70, s. 207, the effect of a judgment in 
 ejectment under the form of proceeding given by that act was 
 the same as that of a judgment in the action of ejectment 
 previously in use. Such a judgment then, when pleaded {d), 
 was conclusive as to the right to possession against the defen- 
 dant in ejectment, and all persons claiming under him up to 
 the date on which title was laid. For any damages claimed 
 previously to that day, strict proof of title was necessary {e). 
 
 Damages in this action are not confined to the mere rent of 
 the premises, but the plaintiff may recover for the trouble and 
 expense he has been put to. And Gould, J., said that he had 
 known four times the value of the mesne profits given by a 
 jury in this action (/). So any consequential damage may be 
 recovered ; as, for instance, the loss which the plaintiff has 
 suffered by the defendant's shutting up an inn, which was the 
 
 {y) Cook V. Harris, 1 Ld. Raym. 367. 
 
 {z) 2 B. & A. 470. 
 
 (a) Uolcomh t. Rawlyns, uhi sup.; per Coltman, J., 5 M. & Gr. 764, 
 774 : Burnett v. Sari of Guildford, 11 Ex. 19 ; 24 L. ,J. Ex. 281, 284. 
 
 (6) Lee Compere v. UickK, 7 T. R. 727 : Hughes v. Thomas, 13 East, 474. 
 
 (c) Reynolds v. Junes, 2 Sim. & Stu. 206 : Dormer v. Fortescue, 3 Atk. 
 124, contra. 
 
 {d) Matthew v. Osborne, 13 C. B. 919 ; 22 L. J. C. P. 241 : Wilkinson v. 
 £irhy, 15 C. B. 430 ; 23 L. J. C. P. 224. it was lield tliat a county court 
 order for giving up possession, made under 19 & 20 Vict. c. 101, s. 50, liad 
 not an analogous effect : Campbell v. Loader, 3 H. & C. 520 : 34 L. J. Ex. 
 50. 
 
 (e) Aslin V. Parkin, 2 Burr. 665. 
 
 (/) Goodtitle v. Tombs, 3 Wils. 121 ; 3 T. R, 547, S. P.
 
 MESNE PROFITS. 441 
 
 subject of the ejectment, and destroying the custom. Such 
 damage, however, must be specially laid (//). 
 
 Where no evidence is given as to the length of time during 
 which the defendant was in possession, no more than nominal 
 damages can be given, and the case was the same even though a 
 date was laid in the declaration, not under a viz., and judgment 
 went by default ; for the date was not material or traversable, 
 and therefore not admitted (A). 
 
 One common ground of damage used to be the costs of eject- Costs of pre- 
 ment, which under the form of fiction then in use, could not be '*'^°'^^ ®J^^*' ' 
 recovered in that action when the landlord or tenant did not 
 appear, or having appeared, did not confess lease, entry, and 
 ouster at the trial (/). In respect to these the rule laid down 
 was, that where the judgment was taken in such a form as 
 admitted of the costs being taxed, those costs alone were re- 
 coverable, and no extra costs, though bond fide incurred (Jc). 
 The apparent exceptions to this rule were in cases where costs 
 could not be taxed ; for instance, where judgment obtained by 
 the defendant had been reversed in error, where a Court of 
 error could not award costs (/) ; or where judgment had gone 
 by default, in which case it was not the practice for the officers 
 to tax against the casual ejector (m). In the latter case judg- 
 ment is now signed against the real defendant, as his name 
 appears on the record, but the order which authorises this to be 
 done is silent as to costs {n). The former case also no longer 
 
 (.9) Dunn V. Large, 3 Dougl. 335. 
 
 (h) he V. Scott, y Dowl. 993. The effect of judgment by default in eject- 
 ment, as evidence of the defendant's possession, in an action for mesne profits, 
 was discussed recently in the Court of Exchequer. Kelly, C. B. , was of 
 opinion that taken alone it was no evidence of the defendant's possession at 
 anytime. Chaunell, B., and Cleasby, B., considered it to be prima facie 
 evidence that the defendant was in possession at the date of the writ of eject- 
 ment, but not evidence of his possession for the period during which the 
 plaintiff claimed title in the writ : Pearse v. Coalccr, L. R. 4 Ex. 92 ; 38 
 L. J. Ex. 82. 
 
 (J) Tidd, Prac. 9th ed., 1243. An allegation iu the declaration that the 
 plaintiffs had incurred great expense in recovering possession, was held to 
 support a claim for the costs of previous ejectment : Pearse v. Coaker, siqva. 
 
 (k) Doe V. Baris, 1 Esp. 538 : Symoiids v. Page, 1 C. & J. 29 : I)oe v. 
 Filiter, 13 M. & W. 47 : Brooke v. Bridjes, 7 Moore, 471 : Doe v. Hare, 2 
 Dowl. 245. 
 
 {I) Nowell V. Roale, 7 B. & G. 404. 
 
 {m) Doe V. Huddart, 2 C. iM. & R. 316. 
 
 (n) See Ord. 13, R. 8, corresponding to 15 & 16 Yict. c. 76, s. 177, under 
 which costs were not recoverable, but had to be recovered by action for mesne 
 profits. See Day's Common Law Proc. Acts, 186, 4th ed.
 
 JIESXE PROFITS. 
 
 stands on its original footing. The Court of Appeal lias a dis- 
 cretion as to costs (o), and the party ultimately prevailing will, 
 as a general rule, get the costs of his appeal as well as the costs 
 below (^;). 
 
 If the defendant has made any payments while in possession, 
 for which plaintiif would be liable, as ground rent or rates and 
 taxes, he is entitled to have them taken in reduction of dam- 
 ages (q). In America the courts go much further. There a dona 
 fide occupant of land is allowed I? mitigate damages in an action 
 by the rightful owner, by setting off the value of his permanent 
 improvements, made in good faith, to the extent of the rent 
 and ^'profits claimed (r). This doctrine, however, has never 
 been asserted in England as far as I am aware. In one case 
 where a party had permitted buildings to be erected upon his 
 property, by a person who acted under a mistaken impression 
 that the land was his own, a Court of Equity restrained an 
 action for mesne profits by injunction, in order to compel the 
 plaintiff to allow the value of the buildings as a set-off (s). 
 This in itself shows that the defendant would have had no claim 
 for compensation at law, and even in equity the argument in 
 his favour rested solely on the fact that the plaintiff had stood 
 by and counteuanced his acts, which amounted to a fraud upon, 
 him. Nor does the doctrine seem well founded, as a mere 
 matter of natural justice. The improvements may be very 
 valuable, but they may be quite unsuited to the use which the 
 plaintiff intends to make of his land. Even if they are such as 
 he would have wished to make, they may also be such as he could 
 not have afforded to make. To compel him to pay for them, or 
 to allow for them in damages, which is all the same, is quite as 
 unjust as it would be to lay out money in any other investment 
 for a man, and then compel him to adopt it, nolens voJens. 
 
 It was no answer to this action that the plaintiff had 
 entered a remittitur damna upon the record in the action of 
 ejectment (/). 
 
 (o) Ord. 58, R. 5. 
 
 (p) Memorandum. 1 Ch. D. 41. 
 
 (g) Doe V. Hare,' 2 C. & M. 145 : Barher v. Broivn, 1 C. B. N. S. at 
 p. 150 ; 26 L. J. C. P. at p. 49. 
 
 (r) Sedg. Dam. 125 : Vol. i., p. 246, 7th ed. ; Morrison v. FMlinson, 31 
 Penn. 456. 
 
 {s) Oaivdor [Earl of) v. Lcicis, 1 Y. & C. 427. 
 
 (t) Harper v. Eijhs, 3 Dougl. 399.
 
 INJUKIES TO EASEMENTS. • 443 
 
 Where ejectment was brought by landlord against tenant, Mesne profits 
 and due notice of trial had been served on the tenant or his ^ases be re- 
 attorney, the plaintiff might go into evidence of mesne profits, covered in 
 and obtain a verdict for them down to the time of verdict given ; 
 even though the record contained no notice that the demand 
 would be made (ii). But such recovery was no bar to an 
 action for mesne profits from the time of verdict to delivery of 
 possession (^•). 
 
 Formerly executors could not sue or be sued in this action ; Executors. 
 but now it seems they may by 3 & 4 W. IV. c, 42, s. 2, pro- 
 vided the action be brought Itj the executors or administrators 
 within a year after death, and for injuries committed within 
 six calendar months before death ; and similarly as to actions 
 against executors or administrators, except that the action must 
 be commenced within six months after they have taken upon 
 themselves the administration of the estate. 
 
 3. In actions for injuries to easements, such as rights of Easements, 
 way, watercourses, light, common, and so forth, no rule can 
 be hiid down as to the measure of damages. They will vary 
 in each case, according to the species and amount of injury 
 caused. Frequently, however, such actions are brought where 
 no actual injury has been suffered, to try a right ; and the 
 question is, whether the plaintiff is entitled to nominal 
 damages. 
 
 In such cases the rule may be laid down, that where an when it is un- 
 actual infringement of right has taken place an action will lie, "^^^^g^^g^^^^^i 
 and the plaintiff will be entitled to a verdict with noniinal damage. 
 damages, though no real loss has been sustained. Hence in 
 actions by commoners against strangers for interfering with 
 their rights of common (jj) ; or by the owners of lands and 
 houses, for violation of their rights of ways, watercourses, light 
 and air (2), there is no necessity to show any actual or sub- 
 stantial damage resulting from the act complained of. Wher- 
 
 (m) Smith V. Tett, 9 Ex. 307 ; 23 L. J. Ex. 93. 
 
 [x) 15 & 16 Vict. c. 76, s. 214. 
 
 \y) 1 W. Saund. 346, a. ; 1 Wms. Notes to Saund. 626. Wells v. Wat- 
 ling, 2 Bl. 1233 : Ilobson v. Todd, 4 T. R. 71 : Piadar v. Wadsivorth, 2 
 East, 154. 
 
 (2) Embrey v. Oioen, 6 Ex. 353 : Bower v. Hill, 1 Bing. N. C. 549 : Wood 
 V. Waud, 3 Ex. 748 : Dickenson v. G. June. Canal Co., 7 Ex. 282 : Roch- 
 dale Canal Co. v. King, 14 Q. B. 122 : Rochdale Canal Co. v. Radcliffe, 18 
 y. B. 287.
 
 INJURIES TO EASEMENTS. 
 
 ever a right has been violated, the law will presume damage, 
 and the mere fact that such acts, if submitted to, would lay the 
 foundation of a fresh right in the wrong-doer, adverse to the 
 original proprietor, is itself support for an action (a). A strong 
 instance of this doctrine arose in the following case. By deed 
 between plaintiff and defendant, owners of adjoining closes, it 
 was agreed that during the first ten days of every month the 
 defendant should have the exclusive use, for purposes of irriga- 
 tion, of the waters of a stream which flowed through his lands 
 to the plaintiff's. That at all other times the water should be 
 under the plaintiff's control, and that it should flow upon his 
 land through the defendant's in a channel specifically described- 
 Defendant altered the stream in its course through his own 
 land, by cutting a new channel. The stream, however, entered 
 the plaintiff's land at exactly the same point as before, and in 
 the same quantity. Xo damage of any sort arose. It was 
 held, however, that under the terms of the deed the plaintiff 
 had a right to have the stream flowing in the specified channel, 
 and was entitled to nominal damages (&). 
 
 Such legal damage, however, will only be presumed where 
 there has been a clear violation of a right. The facts from 
 which it will be presumed differ greatly according to the 
 subject-matter of the right, and the nature of the interests of 
 the parties in it. For instance, commonage is a matter of 
 private and exclusive right. Any assertion of the same right 
 by an unauthorised person is an injury for which an action will 
 lie. But light, air, and water are matters jniblici juris, which 
 cannot be monopolised ; all may use them who have a right of 
 access to them, and an action only lies for such an unreasonable 
 use as deprives the plaintiff of his just benefit from them in 
 turn (c). 
 
 In case of injuries to easements, as in the case of trespass to 
 land (d), the amount of damages awarded will vary, according 
 
 (a) 1 B. & Ad. 426, per Taunton, J. : Harrop v. Hirst, L. R. 4 Ex. 43 ; 
 43 L. J. Ex. 1. 
 
 (6) Northam v. Hurley, 1 E. & B. 665. 
 
 \c) Embrey v. Owen, 6 Ex. 353 : Wood v. Waud, 3 Ex. 748 : Taylor v. 
 Bennett, 7 C. & P. 329 : Pringle v. Wernham, ibid. 377 : Wells v. Ody, 
 ibid. 410 : WUliams v. Morland, 2 B. & C. 910. 
 
 {d) See ante, p. 436.
 
 INJURIES TO EASEMENTS. 445 
 
 as they are a compensation for all future loss arising from the 
 act complained of, or only a compensation for the loss actually 
 incurred up to the date of the action. Hence there is often a 
 diflPerence between the damages given for injury to air or lio-ht, 
 and the damages for injury to water. Violations of right in the 
 former class of cases generally proceed from some permanent 
 structural obstruction ; those of the latter class ft-om some 
 cause which varies day by day, and which may cease or increase. 
 Where such a distinction exists, damages for obstruction to 
 light and air would represent the depreciation in the value of 
 the injured property, and would be a complete compensation, 
 once for all, for the injury done (e). But in the case of an 
 injury to running water, the damages given would only repre- 
 sent the past injury to the plaintiff's rights, and would conse- 
 quently be no compensation for any future injury (/). 
 
 So also any act, however temporary, which disturbs the Actions by 
 . occupant of land in the possession of all his rights attaching ^^J*^^"''*'°'^^''^' 
 to it, is ground for an action by him. But the reversioner can 
 only sue in respect of some wrong which is calculated to injure 
 his reversion ; and the fact of its being of such an injurious 
 character must appear upon the record, and be proved at 
 the trial, or be capable of being assumed as proved after 
 verdict (g). 
 
 The same obstruction to the plaintiff's rights may be the 
 subject of continual actions and continual damages, till it is 
 discontinued (h). 
 
 In some cases, however, actual damage constitutes the gist ^''^° ''^'^^"^^ 
 of the action, and must be stated and proved. This takes be proved. 
 place where the wrong complained of is one of a public nature, 
 which can only become ground of action by an individual upon 
 
 (e) See Ear/le v. Charing Cross Rt/. Co., L. R. 2 C. P. 638 ; 36 L. J. C. P. 
 297 : Moore v. Hall, 3 Q. B. D. 178 ; 47 L. J. Q. B. 334. Where the 
 wrongful act obstructs both ancient and modern lights, the damages recoverable 
 extend to both old and new ; per Lord Esher, M. R., Loudon, Tilhury <£• 
 ti. My. ct- Trustees of Gowers Walk Schools, 24 Q. B. D. at p. 330 ; 59 L. J. 
 Q. B. 162. 
 
 (/) Pennington v. BrinsopHall Coal Co., 5 Ch. D. 769 ; 46 L. J. Ch. 773. 
 
 {g) Hopwood V. Schofield, 2 M. & Rob. 34 : Jesser v. Gifford, 4 Burr. 
 2141 : Kidgill v. Moore, 9 C. B. 364. See Jackson v. Pesked, 1 M. & S. 
 234 : Yoimg v. Spencer, 10 B. & C. 145 : Bell v. Midland Ry. Co., 10 C. B. 
 N. S. 287 ; 30 L. J. C. P. 273 : Metropolitan Association v. Petch, 5 C. B. 
 N. S. 504 ; 27 L. J. C. P. 330 ; and ante, p. 431. 
 
 (h) Vide ante, p. 106.
 
 446 INJURIES TO EASEMENTS. 
 
 proof of actual damage to himself resulting from it (i). But 
 though particular damage must be shown and established, it is 
 neither necessary to lay, nor prove, special damage in its 
 technical sense. As, for instance, where the injury consisted in 
 obstructing the access to plaintiff's house, and consequent loss 
 of trade, it was held not to be necessary to show the specific 
 customers who were hindered (Jc). The injury to the plaintiff 
 must, however, be direct and of a substantial character (I), 
 Eight of In actions by the commoners against the lord, or anyone 
 
 acting under the authority of the lord, for putting cattle upon 
 the common, damage must be shown. He has a right to do so, 
 leaving sufficient for the commoners, and the cause of action 
 clearly does not arise till such damage is shown (m). 
 
 (i) 9 Rep. 113, a. : Wilkes v. Iluvgerford Market Co., 2 B. N. C. 281 ; 
 Eose V. Miles, 4 M. & S. 101 : Grcasly v. Codling, 2 Bing. 263 : Winter- 
 bottom V. Earl of Derby, L. R. 2 Ex. 316 ; 36 L. J. Ex. 194. 
 
 {k) Rose V. Groves, 5 M. & Gr. 613. 
 
 [l) Benjamin v. Storr, L. R. 9 C. P. 400 ; 43 L. J. C. P. 162. 
 
 (m) Ilobson v. Todd, 4 T. R. 73 ; per Buller, ,T., 1 W. Saimd. 346, b. ; 1 
 Wms. Notes to Saund. 627. 
 
 common.
 
 CHAPTER XV 
 
 1. Malicious Prosecution. 
 
 2. False Imprisonment and Assault. 
 
 3. Personal Injury caused hy Neg- 
 
 ligence. 
 
 4. Actions against Sheriff. 
 
 5. Actions against Attorney. 
 
 C. Actions against Wit)iess. 
 
 7. Defamation. 
 
 8. Breach of Promise of Marriage. 
 
 9. Seduction. 
 10. Adultery. 
 
 The two previous chapters were taken up with those torts 
 which consist in injuries to property of a tangible nature, such 
 as goods or land. The present chapter will include injuries 
 to the person, or to the relative rights which exist between 
 the plaintiff and some third party. Breach of promise of 
 marriage should technically have been ranged among other 
 actions on contracts. Practically, however, it is always treated 
 as a tort, and as it is not governed by the same principles as 
 any other contract, no confusion is caused by considering it 
 here. 
 
 1. In order to support an action for a malicious prosecution, Action for 
 or suit, it is necessary to show some damage resulting to the i^-'^licious , 
 
 ' •' . . prosecution 
 
 present plaintiflT from the former proceeding against him. must show 
 This may be either the damage to a man's fame, as if the ^^'"^"^"se- 
 matter he is accused of be scandalous, or where he has been 
 put in danger to lose his life or limb, or liberty ; or damage 
 to his property, as where he is obliged to expend money in 
 necessary charges to acquit himself of the crime of which he 
 is accused (a). And the damage must be one either already 
 fallen upon the plaintiff, or else inevitable (b). 
 
 Accordingly where a declaration merely charged the prefer- 
 ring an indictment for an assault, and no evidence was given 
 
 (ffl) Per Holt, C. J., Saville v. Roberts, 1 Ld. Raym. 374. 
 (6) B. N. P. 13.
 
 448 
 
 MALICIOUS PROSECUTIOX. 
 
 Liability to 
 extra costs not 
 a gj-ound of 
 damage, 
 
 and cannot be 
 recovered. 
 
 but the bill of indictment for the assault, with ignoramus 
 returned thereon, the plaintiff was nonsuited ; and Mansfield, 
 C. J., said, " I feel a difficulty to understand how the plaintiff 
 could recover in the present action, wherein he could recover 
 no damages, because he clearly has not proved that he has 
 sustained any. I can understand the ground upon which an 
 action shall be maintained for an indictment which contains 
 scandal ; but this contains none, nor does any danger of im- 
 prisonment result from it ; this bill was a mere piece of waste 
 paper. All the cases in B. N. P. 13, are directly against this 
 action, for the author speaks of putting the plaintiff to expense 
 and affecting his good fame, neither of which could be done 
 here. If this action could be maintained, every bill which the 
 grand jury threw out would be the ground of an action" (c). 
 And so in a case where the writ had been sued out against a 
 party by mistake, and no arrest or imprisonment ever actually 
 took place, but the party of his own accord paid the bailiff and 
 put in bail, nonsuit was ordered (r7). 
 
 The liability to pay exti'a costs beyond those which can be 
 recovered on taxation, is not a damage recognised in law ; 
 consequently where a declaration stated that defendant in the 
 name of J. S., whom he knew to be insolvent, maliciously, &c., 
 sued the plaintiff, in which action J. S. was nonsuited, and 
 proceeded to allege that the now plaintiff was forced to pay 
 costs which he was unable to recover from J. S., who was and 
 is unable to pay the same ; the Court held the declaration bad 
 for want of an averment that the plaintiff had applied for costs, 
 which might be the only reason he had not recovered them. 
 Maule,. J., said, " In order to make the non-payment of costs 
 a legitimate subject of damage, it must be shown that they 
 are such costs as properly follow the judgment of the Court 
 in which the action was brought ; but here it does not appear 
 there were any such costs, for he was entitled to none unless 
 he applied for them, and it does not appear he has applied " (e). 
 
 For the same reason, where costs are taxed in the former 
 
 (c) Byne v. Moore, 5 Taunt. 187. 
 
 (d) Bieten v. Bvrridge, 3 Camp. 139. 
 
 (e) Cottcrell v. Jones, 11 C. B. 713: Cockhurn v. Edxcards, IS Ch. D. 
 449 : 51 L. J. Ch. 46.
 
 MALICIOUS PROSECUTION. 449 
 
 proceedings, no extra costs can be recovered as damages in this 
 action (/). 
 
 Malice and want of probable cause must also be proved {g), Malice, 
 and the amount of damages given by the jury will always be 
 greatly influenced by the species of evidence afforded upon this 
 point. 
 
 It was held in one case that a witness may, with a view to Evidence of 
 showing probable cause, be asked whether the plaintiff was r^'o^-^^^e cause. 
 not a man of notoriously bad character (/;). But the contrary 
 doctrine has been several times laid down. Where the action 
 was for maliciously and without probable cause procuring the 
 plaintiff to be arrested on a charge of felony, a witness was 
 asked whether he had not searched the plaintiff"s house upon 
 a former occasion, and whether he was not a person of sus- 
 picious character. Wood, B., refused to allow the question. 
 In actions for slander, he said, such evidence was admissible 
 for the purpose of mitigating the damages, and not to bar the 
 action, and that in this case such evidence would afford no 
 l^roof of probable cause to justify the defendant (*). So where 
 the action was trespass for false imprisonment on a charge of 
 obtaining money under false pretences, a policeman was asked 
 on cross-examination whether he had not had the plaintiff in 
 custody before, and also what was her general character ? 
 Gurney, B., after consulting the rest of the Court, refused to 
 admit the evidence, even in mitigation of damages Qc). And 
 similarly where the declaration contained counts for slander, 
 and for a malicious arrest and imprisonment, Abbott, C. J., 
 refused to allow the plaintiff to give evidence of general good 
 character, saying that if such evidence was to be admitted on 
 the part of the plaintiff, then the defendant must be allowed 
 
 (/) Sinclair v. Bldred, 4 Taunt. 7 : Grace v. Morgan, 2 Bing. N. C. 534 ; 
 overruling Sandback v. Thomas, 1 St. 306 : Gould v. Barratt, 2 M. & Rob. 
 171. 
 
 {()) Farmer v. Darling, 4 Burr. 1971 : Gibson v. C'haters, 2 B. & P. 129. 
 The law is settled in England that the jury must find the facts on which the 
 question of reasonable and probable cause depends, and the judge must then 
 determine whether the facts found do constitute reasonable and probable 
 cause. No definite rule can be laid down for the exercise of the judge's judg- 
 ment : Lister v. Ferryman, L R. 4 H. L. 521 ; 39 L. J. Ex. 177. In 
 Scotland the question is treated as an inference of fact for the jury. lb., per 
 Lord Oolonsay. 
 
 (/() Rodriguez v. Tadmire, 2 Esp. 721. 
 
 (i) Neivsam v. Carr, 2 St. 69. 
 
 (k) Downing v. Butcher, 2 M. & Rob. 374. 
 
 M.r. G G
 
 450 MALICIOUS PKOSECUTION. 
 
 Evidence of to go into evidence to prove that tlie plaintilf was a man of bad 
 character. character (/). This was a particularly strong case, for the 
 
 defendant had pleaded in justification, averring the charge of 
 felony to be true. In a later case, where the action was for 
 giving the plaintiff in charge, on the ground of his having stolen 
 oysters from the defendant's bed, evidence was offered by the 
 defendant of a previous conviction of a iliird party for the same 
 offence. The defendant, however, was not aware of such con- 
 viction at the time he gave ihe plaintiff into custody. The 
 Court decided that the evidence was properly rejected on that 
 account. Pollock, C. B., in delivering the judgment of the 
 Court, said, '• The only ground on which the defendant could 
 use any evidence for the purpose of showing that he was 
 acting bona fide, was with reference to the impression that 
 the conviction would make upon his own mind, and not as to 
 the fact itself. It was for this purpose perfectly competent 
 for the defendant to prove that he had been informed of the 
 conviction, and to show all that had been laid before him on 
 which he might form an opinion upon the subject. But in 
 this case the conviction itself never had been laid before him ; 
 he was not present at the trial ; it could never have produced 
 any effect upon his mind. We are of opinion, therefore, that 
 it was very properly rejected, although on the other ground 
 which I have mentioned, it might undoubtedly have been 
 received for the purpose of establishing, bond fide, a sincere 
 opinion, on the part of the defendant, that the jilaintiff had 
 been guilty of felony " {m). Of course if the previous convic- 
 tion had been of the plaintiff himself, the evidence would have 
 been admissible a fortiori. This seems to bear strongly upon 
 the points under discussion. There is no doubt a distinction 
 between evidence of general bad character, and a previous 
 conviction for exactly the same offence as that charged under 
 a mistake. The latter fact probably affords a stronger pre- 
 sumption of guilt than the former. Yet if a person who has 
 erroneously charged another with burglary, may show that he 
 was in fact previously convicted of burglary, it is hard to see 
 why he may not also show that he was well known as a thief 
 sind associate of burglars. Such evidence would certainly be 
 
 (t) Cornwall v. Richardson, Ry. & M. 305. 
 m) Thomas v. ILusseil, 23 L. J. Ex. 233 ; 9 Ex. 764.
 
 ASSAULT AND FALSE IMrRISOXMENT. 451 
 
 a much stronger justification of tlie charge, than it would be 
 to show that a third party had previously committed a burglary 
 in the defendant's house, and been convicted of it. It shows 
 a fair reason for suspecting the plaintiff, whereas evidence, 
 such as that in the case alluded to, merely shows ground for 
 suspecting the world in general of a capacity for the particular 
 crime, and a tendency to it. 
 
 Cases of this sort vary so much according to the nature of 
 the charge preferred, or action brought, and according to the 
 rank and motives of the parties, that the damages are always 
 a mere matter of speculation. The talents of the counsel, the 
 temper of the jury, and the view taken by the judge, have a 
 greater influence upon their amount than any principles of law 
 which can be laid down. 
 
 2. The damages in actions for assault or false imprisonment Assault and 
 will also vary in the same manner, according to the circura- ^^^^^^ impnson- 
 stances of the case. The same remarks will also apply to the 
 evidence which may be adduced in proof of probable cause. 
 Where the action was for an arrest in Bristol, without reason- 
 able and probable cause, it was held that the defendants, who 
 were constables of Oxford, might show in mitigation of 
 damages, that they had taken the plaintiff on suspicion of 
 stealing a horse ; but that as the arrest had been made out of 
 their jurisdiction, they could not give the matter in evidence, 
 under the general issue, as an entire defence by virtue of the 
 stat. 25 Jac. I. c. 12 (w). A justification of a false imprison- 
 ment, on the ground that the defendant had reasonable and 
 probable cause to suspect the plaintiff of being guilty of a 
 felony, is very different in its effect upon the damages from an 
 unsuccessful plea that the plaintiff was and is guilty of the 
 felony. The former is in the nature of an apology for the 
 defendant's conduct. The latter is a persistence in the original 
 charge, which is in itself a ground for aggravation of damages. 
 And it makes no difference that the plea was abandoned at 
 trial, the defendant's counsel saying that the charge was un- 
 grounded ; and that the plea was the act of the pleader, and 
 not of the defendant (o). 
 
 (n) Eowcliffe v. Murray, Car. & M. 513. 
 (o) Warwick v. Foulkes, 12 M. & W. 507. 
 
 G Q 2
 
 452 
 
 ASSAULT AND FALSE IMPRISOXMEXT, 
 
 Mitigation of 
 damages. 
 
 Remand by 
 magistrate. 
 
 Former 
 
 recovery. 
 
 Joint actions, 
 and actions 
 against several. 
 
 Xo evidence which if pleaded would be a bar, can be given 
 in evidence in mitigation of damages. Accordingly, where 
 the action was for an assault, and there was no plea of justifi- 
 cation, but evidence was offered that the plaintiff was one of 
 the crew on board the defendant's ship, and that the beating 
 was in consequence of his misconduct ; it was ruled that as 
 these facts might have been pleaded in bar, the jury should 
 not consider them in estimating damages for the injury 
 inflicted Q;). 
 
 Where the action is trespass for false imprisonment, damages 
 cannot be given for a remand by the magistrate, which is a 
 distinct judicial act proceeding from himself alone (</). The 
 action should be in case, alleging malice and w^ant of probable 
 cause, or trespass against the magistrate (r). 
 
 On the other hand, a recovery in an action for false im- 
 prisonment is no bar to another action for a malicious prose- 
 cution. They are altogether different causes of action. The 
 taking a man up on a charge of felony is distinct from going 
 before a grand jury, and falsely and maliciously taking an oath 
 to get a bill found against him, and then going before a petty 
 jury and trying to induce them to find him guilty. Conse- 
 quently, in the action for false imprisonment, none of the 
 circumstances connected with the subsequent prosecution can 
 be proved, or allowed for in damages (s). 
 
 Where the action is a joint one, by or against several, the 
 rule used to be that only those circumstances which proved a 
 joint injury to or from ah could be compensated for. There- 
 fore, where several plaintiffs sued, on account of a joint im- 
 prisonment, they might recover in respect of money which 
 they paid jointly for their release, but not on account of 
 the suffering caused by the imprisonment, for that was a sepa- 
 rate injury to each (/). And so in the case of r joint trespass, 
 the true measure of damage was the whole injury which the 
 plaintiff had suffered from the joint act. But aggravated 
 damages could not be given on account of the peculiar malice 
 
 ip) Watsoji V. Christie, 2 B. & P. 224. 
 
 (q) Lock V. AsMon, 12 Q. B. 87L 
 
 (r) Morgan v. Hughes, 2 T. R. 225, 231. 
 
 (s) Guest V. Warren, 9 Ex. 379. 
 
 (t) Haythorn v. Laioson, 3 C. & P. 196 : Barratt v. Collins, 10 Moo. 446.
 
 PERSONAL INJURY FROM NEGLIGENCE. 453 
 
 of one. In such a case it was understood that the plaintiff 
 ought to have elected the party against whom he meant to get 
 aggravated damages (u). 
 
 But since the Judicature Acts the first part of this rule no Practice under 
 longer exists, as it has been held in the Court of Appeal that ^^J^J^''*^'"^*"'^ 
 persons who have been injured by the same tortious act, and 
 who would formerly have had to bring separate actions, may 
 now join in one action, and their damages ought to be severally 
 assessed (x). Therefore, each petitioner in such an action can 
 recover for his separate injury. It remains to be seen whether 
 now that judgment is to be given against defendants according 
 to their respective liabilities (ij), and it is not necessary for 
 every defendant to be interested as to all the relief prayed 
 for (z), a petitioner will not be allowed to recover aggravated 
 damages against those defendants who were party to the joint 
 act who were actuated by peculiar malice. 
 
 It may be as well to remark that every action against a Justices of 
 justice of the peace, for anything done by him in the execution ^®^'^'^' 
 of his duty as such justice, and within his jurisdiction, must 
 allege the act to have been done maliciously and without 
 probable cause (a). Where he has no jurisdiction, or exceeds 
 his jurisdiction, he may still be sued in trespass, subject to 
 certain provisions as to quashing the conviction (b). And in 
 no case is the plaintiff to have more than twopence damages, 
 where it appears that he was guilty of the offence of which he 
 was convicted, or liable by law to pay the money ordered to be 
 paid, and that he has undergone no greater punishment than 
 that assigned by law to the offence of which he was convicted, 
 or for non-payment of the money ordered (c). 
 
 3. Yery little can be said with certainty as to damages for Personal injury 
 personal injuries inflicted by negligence. Loss of time during l^gg^g^^g^J^^ 
 the cure, and expense incurred in respect of it, are of course 
 matters of easy calculation. Pain and suffering undergone by 
 
 [u) Clark V. Ncwsam, 1 Ex. 131, 139 ; and see Grejori/ v. CottereU, 22 
 L. J. Q. B. 217. 
 
 {x) Booth V. Briscoe, 2 Q. B. D. 496. 
 
 {y) Ord. 16, Rule 4. 
 
 (z) Ord. 16, Rule 5. 
 
 (a) 11 & 12 Vict. c. 44, s. 1. 
 
 (6) S. 2. 
 
 ■c) S. 13.
 
 454 PERSONAL INJURY FROM NEGLIGENCE. 
 
 Compensation the plaintiff are also a ground of damage (d). And in this 
 injury.^°"^ point such an action differs from one brought by the personal 
 representatives, where a death has ensued (e). Any permanent 
 injury, especially when it causes a disability from future 
 exertion, and consequent pecuniary loss, is also a ground of 
 damage. This is one of the cases in which damages most 
 signally fail to be a real compensation for the loss sustained. 
 In one case Parke, B., said, " It would be most unjust if, when- 
 ever an accident occurs, juries were to visit the unfortunate 
 cause of it with the utmost amount which they think an 
 equivalent for the mischief done. Scarcely any sum could 
 compensate a labouring man for the loss of a limb, yet you 
 do not in such a case give him enough to maintain him for 
 life " (/). 
 
 The whole of this sulyect was much discussed in the case of 
 Phillips V. London & SQuih-Western Railway Co. ig). In that 
 case the plaintiff was a surgeon of middle age, and previously 
 robust health, making a professional income of between 0,000/. 
 and 7,000/. per annum. The injury complained of had 
 rendered his condition helpless and hopeless. It was likely 
 that he would never recover, and certain that he could never 
 resume his practice. Mr. Justice Field in charging the jury 
 divided the claim for damages into the heads of compensation 
 for personal suffering and injury, and for loss of future income. 
 As regards the first head, he referred to the opinions of Parke, B;, 
 and Brett, J., cited above, and said : " Perfect compensation is 
 hardly possible, and would be unjust. You cannot put the 
 plaintiff back again into his original position, but you must 
 bring your reasonable common sense to bear, and you must 
 always recollect that this is the only occasion on which com- 
 pensation can be given. Dr. Phillips can never sue again for 
 it. You have, therefore, now to give him compensation, once 
 for all. He has done no wrong ; he has suflFered a wrong at 
 the hands of the defendants, and you must take care to give 
 
 {d) 18 Q. B. in. 
 
 (e) See post, p. 515. 
 
 (/) Armsworth v. S. E. R)/. Co., 11 Jur. 760 ; cited 18 Q. B. 104. See, 
 too, per Brett, J., Eoidcy v. London cfc JV. W. Ry. Co., L. R. 8 Ex. 221 ; 42 
 L. J. Ex. 153. 
 
 (?) 4 Q, B. D. 406 ; 48 L. J. Q. B. 693 ; affirmed 5 Q. B. D. 78; 49 L. J. 
 Q. B. 233.
 
 PERSONAL INJURY FROM NEGLIGENCE. 455 
 
 him full, fair compensation for that which he has suffered ; " 
 to the sum so arrived at, all costs of medical attendance, 
 journeys, &c., arising from the accident, would necessarily be 
 added. 
 
 As regards the second head, the learned judge said : " You Compensation 
 are not to give the value of an annuity of the same amount as [^^^^^ °^ 
 the plaintiff's average income for the rest of the plaintiff's life. 
 If you gave that you would be disregarding some of the con- 
 tingencies. An accident might have taken the plaintiff off 
 within a year. He might have lived, on the other hand, for the 
 next twenty years, and yet many things might have happened 
 to prevent his continuing his practice." 
 
 It was suggested that the fact that the plaintiff had a secured 
 income of 3,500Z. per annum was a legitimate consideration 
 upon which the jury might act in reducing the damages. The 
 judge told the jury he could not remove that fact from their 
 view, though he stated his opinion that it ought not to affect 
 the amount which he was entitled to receive as compensation, 
 either for personal injury or for loss of income. 
 
 The jury gave a verdict of 7,000/., and a new trial was 
 ordered on the ground that the damages were insufficient, since 
 the jury must have omitted some of the elements of damage 
 from their calculation. The summing up of Mr. Justice Field 
 was adopted in both Courts as a fair statement of the law. It 
 was suggested by Lord Justice James, that the plaintiff's 
 secured income might have a bearing on both heads of damage ; 
 as regards future income, because it might be an inducement 
 to him to retire earlier from practice, and also as regards the 
 personal injury (h) : I suppose because a rich man who is 
 disabled from future exertion is not left absolutely destitute, 
 and is able to provide himself with alleviating comforts. It is 
 difficult, however, to answer Mr. Justice Field's objection, that 
 if the plaintiff's wealth were to be taken into consideration for 
 this purpose, it would be making him pay out of his own pocket 
 for the consequence of the defendants' wrong-doing. 
 
 ISio deduction can be made from the amount payable to the No deduction 
 plaintiff on the ground that he had insured his life against j^g^S."^ 
 accident, and had recovered from the insurance othce full com- 
 
 (/i) See 5 Q. B. D., at pp. 84, 87.
 
 456 
 
 ACTIONS BY THE CREDITOR AGAINST THE SHERIFF. 
 
 Employers' 
 Liability I. ct. 
 
 Actions against 
 the bberiff. 
 
 Replevin. 
 
 Rtat. 19 & 20 
 Vict, c, 108. 
 
 p nsation for the injury. If such a deduction were allowed, 
 the obvious result would be, that the wrong-doer would have 
 received the full benefit of the insurance, without paying any 
 of i\\e2^rmnia. In fact that the injured person would be worse 
 off, to the full extent of the 'prmnia and interest upon them, 
 than if he had never insured his life at all {%). 
 
 Under the Employers' Liability Act, 1880, a right to recover 
 damages from his employer has been given to a workman in 
 certain cases where the former has not been personally guilty 
 of negligence, but the injury has resulted from defects in the 
 works or plant or from the negligence of superintendents. In 
 these cases the damages are limited to the estimated earnings 
 during the three years preceding the injury of a person in the 
 same grade in the like employment and district (./). 
 
 4. Actions against the sheriff are either by the creditor, for 
 some neglect of duty which deprives him of his proper remedy 
 against his debtor ; or by the debtor, or supposed debtor, or 
 his representatives, for some unlawful exercise of authority 
 against him. 
 
 I. Actions by the creditor against the sheriff. 
 One of the most common of these arose before the passing 
 of 19 & 20 Vict. c. 108, out of the action of replevin. Stat. 
 11 Geo. II. c. 19, s. 23, enacted that sheriffs and other officers 
 granting replevins should take from the plaintiff, and two 
 responsible persons as sureties, a bond in double the value of 
 the goods distrained, conditioned for prosecuting the suit with 
 effect, and without delay, and for a return of the goods. By 
 sect. 22, if the plaintiff in replevin should discontinue, be non- 
 suited, or have judgment against him, the defendant should 
 recover double costs. Stat. 5 & G Vict. c. 97, s. 2, enacted 
 that, instead of double costs, the defendant should have such 
 full and reasonable indemnity as to all costs, charges, and 
 expenses incurred in and about the suit, as should be taxed by 
 the proper officer. 
 
 By 19 & 20 Vict. c. 108, ss. 6.S, seqq., the powers and 
 responsibilities of sheriffs with respect to replevin bonds and 
 
 (i) Bradhurn v. G. W. By. Co., L. R. 10 Ex. 1 ; 44 L. J. Ex. 9. It is 
 otherwise when action is brought under Lord Campbell's Act. See post, p. 517. 
 
 (j) 43 & 44 Vict. c. 42, s. 3. Penalties recovered under special Acts of 
 parliament must be deducted from the compensation awarded in the action.
 
 ACTIONS BY THE CREDITOR AGAINST THE SHERIFF. 457 
 
 replevins were pnt an end to ; and the registrar of the county 
 court of the district in which the distress subject to replevin is 
 taken, is empowered to approve replevin bonds and grant 
 replevins, and issue all necessary process. The goods are to be 
 replevied to their owner on his giving security, to be approved 
 by the registrar, for an amount sufficient to cover the rent or 
 damage and probable costs of the cause, conditioned to 
 prosecute the action with effect and make return of the goods. 
 The security is to be a bond with sureties to the other party, or 
 a deposit in money. The registrar is bound to use proper 
 discretion in approving replevin bonds (Jc), and it would seem, 
 that if he is guilty of negligence an action will lie against him 
 at the suit of the party damnified (/). In such case the 
 principles acted upon in actions against the sheriff will apply. 
 
 If the sheriff failed to take a bond, or took one with 
 insufficient sureties, an action upon the case lay against him, 
 and in such an action he was liable to the same extent as the 
 sureties would have been, had he done his duty (m). The 
 question then was, to what extent were the sureties liable ? 
 
 The extreme limit of liability was, in all cases, the penalty Extent of 
 
 -, , ^ • -L ^ \ TTT-,1 • J.1 • liability Upon 
 
 of the bond, and the costs of suing upon it (w). W ithm this replevin bond, 
 limit, however, the liability might vary ; and for a long time 
 there was great doubt as to the rule by which the variation was 
 ' to be regulated. It is obvious that the rent distrained for 
 might either be greater or less than the value of the goods dis- 
 trained. Accordingly, where it was greater, the struggle on 
 the part of the plaintiff was to extend the damages to the whole 
 amount due ; where it was less, to the whole value of the 
 goods. On the other hand, the sheriff tried to limit his 
 liability in all cases to the value of the goods, and to escape all 
 claim for costs. The latter attempt, which was sanctioned by 
 the Court, in Yea v. Lethlridge (o), was decided against in 
 
 {Ic) Young v. Brompton, <ic., Wateruorlcs Co., 1 B. & S. 675; 31 L. J. 
 Q. B. 14. 
 
 (I) 2 Ch. Arch. Pr. 1104, 12th ed. 
 
 (wi) Evans v. Brander, 2 H. Bl. 550 : Bal-er v. Garratt, 3 Bing. 56, 59 : 
 Paul V. Goodluck, 2 B. N. C. 220. 
 
 (n) I/efford v. A/ger, 1 Taunt. 218 : Jeffcry v. Bastard, 4 Ad. & Ell. 829 : 
 per Littledale, J., Bvans v. Brander, 2 H. Bl. 547 ; overruling Concanen v. 
 Lethhridqe, 2 H. Bl. 36. 
 
 (o) 4 T. R. 433.
 
 458 ACTIONS BY THE CREDITOR AGAINST THE SHERIFF. 
 
 Paul V. Goodluch (p). The former point, however, was still 
 left open. It was, however, afterwards settled, that the object, 
 of the statute was only to place the parties in the same position 
 as if no replevin bond had been executed. At Common Law 
 the landlord had only his remedy against the person who 
 brought the action of replevin. The replevin bond gave him 
 the additional security of the sureties, and the double costs. 
 That was the whole effect the act could have had. Conse- 
 quently, if the rent was less than the value of the goods, the 
 object of the statute was satisfied by giving the amount of the 
 rent and the costs ; otherwise the landlord would have been 
 o-ettins: more than the rent due. If the amount of the rent 
 exceeded the goods, then the landlord was entitled to the value 
 of the goods, with the costs, as before ; otherwise, his remedy 
 against the sureties would have been greater than it had been 
 against the tenant {q). In the former of the cases cited below, 
 Patteson, J., pointed out that some of the authorities relied on 
 as opposing this view, really were not against it, as they did 
 not state which, the rent or the goods, were greater in value. 
 For instance, in Ward v. HeJileij (r), where it was held that the 
 rent in arrear and costs was the measure of damages against the 
 sureties, it does not appear that the rent was not less than the 
 distress. And in Scott v. Waithman (.s), where Abbott, C. J., 
 said, " As the verdict in the replevin suit was merely for a 
 return of tlie goods, the jury could not in their verdict exceed 
 the value of the goods," it does not appear whether the goods 
 were greater or less in value than the rent. 
 
 In no case could either sureties or sheriff be liable for rent 
 which accrued after the distress (/). 
 Damages The rules thus settled equally applied where the action was 
 
 against slierifF. ggg^^^gf. ^]^g sheriff for not having taken a bond at all, or an 
 invalid one, or one with insufficient sureties. In such a case the 
 rent due, and the expenses of the distress, were held to be a 
 proper amount of damages («). In that case it would appear, 
 that the value of the goods was greater than the amount of the 
 
 (p) 2 Bing. N. C. 220. 
 
 {([) Hunt V. Round, 2 Dowl. 558 : Micrs v. Lockwood, 9 Dowl. 975 
 
 (r) 1 Y. & J. 285. 
 
 («) 3 Stark, 168. 
 
 (t) Ward V. Henley, 1 Y. ^. J. 285. 
 
 (m) Edmonds v. (Jhallis, 7 C. B. 413.
 
 ACTIONS BY THE CnEDITOR AGAIN'ST THE SHERIFF. 459 
 
 rent ; and that no proceedings in replevin had been earned on, 
 so as to raise a claim for costs. The costs of proceedings 
 against the sureties might be recovered against the sheriff in 
 this form of action, even though no notice of the intention to 
 proceed against them had been given him ; provided such costs 
 did not, together with other claims, exceed the penalty (sc). In 
 BaJcer v. Garratt, the Court seemed to think, that if due notice 
 of the intention to sue had been given, such costs might be 
 recoverable, even beyond the penalty ; because the sheriff 
 might have prevented the expense by paying all he was liable 
 to pay under the sureties' bond. They distinguished such a 
 case of expenses, wholly incurred through his default, from 
 that of costs of replevin suit, for which he was not liable to a 
 greater amount than the penalty (?/) ; because the legislature 
 presumed that these would be covered by double the value 
 of the goods, and the amount so incurred was not within his 
 control. 
 
 On the same principle, where the sheriff had lost the replevin When bond is 
 bond, he was hable in an action on the case at the suit of the 
 defendant in replevin, to the amount of damage to which the 
 sureties would have been hable, or to the amount of the penalty 
 of the bond, whichever was less (2). 
 
 The principle that where the sheriff has been in fault, the Damages for 
 
 .-., .., breach of 
 
 plaintiff is entitled to be placed m the same position by means other duties. 
 of damages, as if the defendant had done his duty, is main- 
 tained in numerous other cases ; for instance, in actions for 
 delay in executing a writ of arrest («) ; in selling under a 
 fi. fa. (J)) ; in returning the writ (f) ; for a false return (d) ; 
 for not levying (e). In all these the damages are measured not 
 by the amount of the debt, but by the amount which could or 
 would have been recovered, if the breach of duty had not taken 
 place (/). And if the sheriff return nidJa bona to a writ of 
 
 (x) Baker v. Garratt, 3 Bing. 56 : Plumer v. Brisco, 11 Q. B. 46. 
 ly) Evans v. Brander, 2 H. Bl. 547, 
 (z) Perreau v. Bexan, 5 B. & C. 284. 
 \a) Clifton v. Hooper, 6 Q. B. 468. 
 
 {h) Aireton v. Davis, 9 Bing. 740 : Bales v. Winnfidd, 4 Q. B. 580, n. 
 (c) R. V. Sheriff of Essex, 1 M. & W. 720. 
 
 (cZ) Crou-der v." Long, 8 B. & C. 598 : I/ienan v. Evans, 3 M. & Gr. 398. 
 (e) Augiistien v. Chcdlis, 1 Ex. 279 : Mullet v. Challis, 16 Q. B. 239. 
 (/) And all the probabilities of the case mubt be looked at, as for example, 
 vifhether or not, if the execution had been levied, the plaintiff would have got
 
 460 
 
 ACTIONS BY THE CREDITOR AGAINST THE SHERIFF. 
 
 When it is 
 necessary to 
 prove actual 
 damages. 
 
 Onus of 
 proving 
 damage. 
 
 fi. fa., and the creditor knows of goods belonging to his debtor, 
 he need not sue forth a second writ of fi. fa., but may, in an 
 action for a false return, recover the value of the goods which 
 the sheriflP ought to have taken {g). 
 
 There is a difference to be observed in these actions, viz., 
 that in those, the whole gist of which is pecuniary damage, 
 some such damage must be proved, or the action will fail. 
 But in others, there is an injury to a right, even independent 
 of actual loss ; and the fact of loss being negatived, merely 
 makes the damages nominal. Thus in an action for a false 
 return (//) ; for not arresting on mesne process {i) ; or for per- 
 mitting a debtor arrested on mesne process to escape (./) ; it 
 has been held that proof of absence of loss entitled the defen- 
 dant to a verdict {Ic). In all these cases, the truth of the return, 
 or the detention of the debtor, was only of importance to the 
 plaintiff as contributing to some ulterior result. If no such 
 result could have been produced, or has been affected by it, 
 there was no ground of action. But the case of an escape on 
 final process was different. The creditor, it is said, when he 
 was ascertained to be such by a judgment, and had charged the 
 debtor, had a right to the body of his debtor every hour till the 
 debt was paid(/). This was itself the end, not the means. 
 Consequently, a right of action for nominal damages arose on 
 any escape, for however short a time, even though no pecuniary 
 damage arose {m) ; or on any delay in making the arrest {n). 
 It would appear in all cases in which damage is necessary to 
 
 any benefit from it, the other creditors of the execution debtor having been in 
 a position to make him bankrupt : Jlobson v. I'hcllusson, 8 B. & S. 476 ; L. 
 R. 2 Q. B. 642 ; 36 L. J. Q. B. 302. 
 
 ((/) Per Cur. Arden v. Goodacre, 11 C. B., at p. 377 ; 20 L. J. C. P. 184. 
 Prima facie, the measure of damage is the value of the goods which might 
 have been and were not levied : Ilohson v. TMlusson, siqva. 
 
 {h) Wylie V. Birch, 4 Q. B. 566 : Levy v. Hale, 29 L. J. C. P. 127 : 
 Stimson V. Farnham, L. R. 7 Q. B. 175 ; 41 L. J. Q. B. 52. 
 
 [i) CurUny v. Evans, 2 M. & G. 349. 
 
 ( j) Williams v. Mostyn, 4 M. & W. 145 : Lcicis v. Morland, 2 B. & A. 
 56—64 : Planck v. Anderson, 5 T. R. 37; overruling Barker v. Green, 2 
 Bing. 317. 
 
 ()c) So where the action was against the sheriff for selling the reversionary 
 interest of the jilaintift" in goods in the possession of an execution debtor : 
 Tancrtd v. Albjood, 4 H. & N. 438 ; 28 L. J. Ex. 362. See. also, Lanca- 
 sliire Wac/f/on Co. v. Fitzlfm/fi, 6 H. & N. 502 ; 30 L. J. E.x;. 231. 
 
 (/) Pfr Buller, J., Planck v. Anderson, 5 T. R. 40. 
 
 (m) Williams v. Mostyn, 4 M. & W. 153. 
 
 (n) Clifton v. Hooper, 6 Q. B. 468.
 
 ACTIONS BY THE CREDITOR AGAINST THE SHERIFF. 
 
 4G1 
 
 maintain the action, that proof of the breach of duty will lay 
 upon the defendant the onus of showing that no damage 
 ensued ; but to entitle plaintiff to substantial damage, specific 
 evidence of loss must be given (o). For instance, in an action 
 against the sheriff under 8 Anne, c. 14, s. l,for removing goods 
 taken in execution without paying the landlord a year's rent, 
 the measure of damages is prinid facie the amount of rent due, 
 but the sheriff may prove in mitigation of damages that the 
 value of the goods removed was less than that amount (j) ). 
 
 Cases of actions for escape after arrest on mesne process, Arrest on 
 or neglect to execute such arrest, became of rare occurrence "^esue proces? 
 after arrest on mesne process was almost done away with by 
 1 & 2 Yict. c. 110, s. 3. It is now abolished by the Debtors 
 Act, 1869, 32 & 33 Vict. c. 62, s. 6. But analogous actions 
 may still arise, for it would seem that an action will lie 
 against the sheriff for disobeying an order for arrest made by 
 a judge under this last Act (q). Such orders may be made 
 under certain circumstances before final judgment where the 
 defendant is about to quit England, the arrest being for a period 
 not exceeding six months, terminable on the defendant's giving 
 security, in ordinary actions, that he will not go out of England 
 without the leave of the Court, in penal actions, that the sum 
 recovered in the action shall be paid or the defendant rendered 
 to prison (r). Arrest on final process is also abolished, except Arrest on 
 in a few specified cases ; and if those excepted cases still give ^'^^^ process, 
 rise to actions for not arresting or for escape, the calculation of 
 damages will be complicated by the consideration that the im- 
 prisonment could in no case be for a longer period than a 
 year (.s). Under s. 5, in some cases judgment debtors may be 
 committed to prison for periods not exceeding six weeks or 
 until payment of the sum due. It will be difficultfor a jury to 
 estimate satisfactorily in such cases the value of the custody of 
 the debtor. 
 
 Formerly by statute "Westminster 2 (/), and 1 Rich. II. Actions for 
 escape. 
 
 (o) Boles V. Wingfield, 4 Q. B. 580, d. ; Wylic v. Birc/i, 4 Q. B. 566, 
 578 : Scott V. Henley, 1 M. & Rob. 227. 
 
 {p) Thomas v. Mirehouse, 19 Q. B. D. 563 ; 56 L. J. Q. B. 653. 
 
 {q) See Roscoe's Nisi Prius, 1243, 13th ed. 
 
 (r) 32 & 33 Vict. c. 62, s. 5. The judge's orders are carried into effect by 
 tlie sheriff ; 0. 69, R. 1. 
 
 {s) S. 4. 
 
 {t) 13 Ed. I. c. 11.
 
 462 ACTIONS BY THE CREDITOR AGAINST THE SHERIFF. 
 
 c. 12, an actiou of debt could be maintained against the sheriff 
 upon an escape, to recover the sum for which the debtor had 
 been charged in execution, and upon this action the creditor 
 could not recover less than the whole sum due, and the costs of 
 Must be in the execution (u). This action, however, has been taken away 
 case. by 5 & 6 Vict. c. 98, s. 31, and the creditor is left to his old 
 
 remedy at common law by action on the case for damages. In 
 a modern case the law as to the assessment of damage was laid 
 Measure of tlown by the Court of Common Pleas as follows : " The true 
 damages. measure of damage is the value of the custody of the debtor at 
 
 the time of the escape, and no deduction ought to be made on 
 account of anything which the plaintiff might have obtained 
 by diligence after the escape. If the execution debtor had not 
 the means of satisfying the judgment at the mom.ent of the 
 escape, the plaintiff will have lost only the security of the 
 debtor's body, and the damages may be small. If the execution 
 debtor had the means of satisfying the judgment at the moment 
 of the escape, and has wasted those means since the escape, it 
 is plain that the plaintiff has lost the chance of obtaining satis- 
 faction of his judgment through the sheriff's neglect, and the 
 jury would be justified in giving the full amount of the exe- 
 cution. Where the execution debtor has the means of paying 
 the debt at the moment of the escape, and still continues 
 notoriously in solvent circumstances, the value of the custody 
 would be the amount of the debt, and the plaintiff would be 
 entitled to recover substantial damages. If the laches of the 
 plaintiff could be used to mitigate the damages against the 
 sheriff, the plaintiff would be compelled, in every case, to issue 
 a fresh writ, and incur expense to relieve himself to some extent 
 from the consequence of the sheriff's negligence ; but if such 
 were the plaintiff's duty, we should find some trace of the 
 sheriff's liability to repay such expenses where the debtor was 
 not recaptured upon the second writ, and the plaintiff's exer- 
 tions were unavailing to realise the amount of his judgment. 
 There may, however, be circumstances under which the plaintiff's 
 conduct would materially affect the damages. For instance, it 
 he has done anything to aggravate the loss occasioned by the 
 
 (u) Bonafous v. Walker, 2 T. R. 156 : Hawhins v. Plomer, 2 Bl. 1048
 
 debtor. 
 
 ACTIONS BY THE DEBTOR AGAINST THE SHERIFF. 463 
 
 sheriff's neglect, or has preveuted the sheriff from retaking the 
 debtor (.r)." 
 
 Of course an action will lie by the creditor against the sheriff Action for _ 
 to recover the money levied by him under an execution, and ^™°"'^ 
 the damages will be the whole amount so levied. But where 
 the action has been commenced without a demand of the sum, 
 the Court will stay proceedings upon payment of the amount 
 ivWiout costs (y). 
 
 II. Actions against the sheriff by the debtor or his repre- Actions by tbe 
 sentatives are generally for a seizure of his goods or person 
 under illegal circumstances, or for an improper treatment of 
 the property so taken. So far as these actions differ from 
 similar proceedings against any other wrong-doer, they have 
 been treated of in a previous chapter (s). 
 
 Another species of wrong, viz., extortion by exacting too Extortion. 
 large fees, has been provided for by statute ; 29 Eliz. c. 4,s. 1, 
 enacts, that if the sheriff or his officers extort more than the 
 poundage fees aUowed by that act, they shaU lose and forfeit 
 to the party grieved his treble damages. This means three 
 times the full amount found by the jury («). This statute is 
 not repealed by 1 Vict. c. 55, which permits the sheriff to take 
 certain additional fees, if previously sanctioned by the judges, 
 and makes the officer exacting more punishable as for a con- 
 tempt. The effect of the latter act is to exempt the taking of 
 the fees allowed by the judges under it from the operation of 
 the penal clause in the statute of Eliz., leaving that statute in 
 other respects in full operation. Consequently all that is taken 
 by the sheriff or his officer beyond what is warranted by the 
 exemption given by the statute of Yict. is, if it amounts to 
 more than the poundage, an excess under the statute of Eliz., 
 and renders the officer taking such excess liable to an action 
 for the penalty given by that statute {!)). 
 
 [x) Arden v. Goodacre, 11 C. B. 371 ; 20 L. J. C. P. 184. So Moore v. 
 3Ioore, 25 Beav. 8 ; 27 L. J. Ch. 385 : Heinmiivj v. Hale, 7 C. B. N. S. 
 487 ; 29 L. J. C. P. 137. Not only the debtor's own resources are to be con- 
 sidered, but all reasonable probabilities, founded on his position in life, that 
 the debt would have been discharged : Macrae v. Clark, L. R. 1 C. P. 403 ; 
 35 L. J. C. P. 247. 
 
 {y) Jefferies v. Sheppard, 3 B. & A. 696. 
 
 {z) Ante, p. 415. 
 
 (a) Buckle v. Beices, 4 B. & C. 154. 
 
 (6) Per Cur., Wrightup v. Greenacre, 10 Q. B. 1 : Pilhinjton x. Cooke, 16 
 M. & W. 615.
 
 attomies for 
 neglifrence 
 
 4G4 ACTIONS AGAINST ATTORNIES. 
 
 Form of The declaration should show how much was taken lawfully, 
 
 declaration. ^^^^ j^^^ ^^^^^ unlawf idly, stating the excess on each fee (c). 
 Bat where the illegality consists in exacting poundage where 
 no levy at all was made, it is not necessary to negative all the 
 acts which would have constituted a levy (d). 
 Only taxed Where the misconduct of the sheriff has forced the party 
 
 costs recover- jj^j^red to take legal proceedings, only the taxed costs of such 
 proceedings can be recovered back from him, and not the extra 
 costs paid to the plaintiff's attorney (e). 
 Actions against 5, Damages in actions against attornies for neglect of their 
 duty are governed by exactly the same principles as those laid 
 down in the case of sheriffs. The plaintiff is entitled to be 
 placed in the same position as if the attorney had done his 
 duty. But he is entitled to no more. Therefore where no 
 diligence could have been effectual, as where the client had no 
 ground of action or defence, the attorney cannot be liable for 
 negligence, unless it has caused loss independent of the neces- 
 sary result of the suit, or other proceeding (/). It lies upon 
 the defendant, however, to establish this defence affirmatively, 
 and the fact that the plaintiff has suSered no actual injury is 
 no bar to the action, if otherwise maintainable. He is still en- 
 titled to nominal damages (g). The amount of damages is a 
 question for the jury (A), and depends upon the amount of loss 
 which the plaintiff has suffered (i), or is likely to suffer from the 
 act, taking all the circumstances of the case into consideration. 
 The latter part is clear from the case of Howell v. Young (k), 
 which decides that the Statute of Limitations runs from the act 
 of negligence, not from the time that an injury accrues ; such 
 
 (c) Usher V. Walters, 4 Q. B. 553 : Berton v. Lawrence, 5 Ex. 816. 
 
 (d) Holmes v. Sparkes, 12 C. B. 242. 
 (c) Jenkins v. Bkldulph, 4 Bing. 160. 
 (/) Lee V. Aijrton, 1 Peake, 161 : Aitcheson v. Madock, 1 Pea. 218 : 
 
 Harrington v. Blnns, 3 F. & F. 942. 
 
 {g) Godefroy v. Jay, 7 Bing. 413. So where the attorney compromises a 
 suit against the express instructions of his client, though the compromise be 
 for the client's benefit, at least nominal damages may be recovered by the 
 client in an action against the attorney : Frai/ v. Voules, 1 E. & E. 839 ; 28 
 L. J. Q. B. 232. And see Butler v. Knbjht', L. R. 2 Ex. 109 ; 36 L. J. Ex. 
 66 : Cockburn v. Edwards, 16 Ch. D. 393 ; 18 Ch. D. 449 ; 50 L. J. Ch. 
 181 ; 51 L. J. Ch. 46. 
 
 (h) Russell V. Palmer, 2 Wills. 325 : Pitt v. Yalden, 4 Burr. 2061. 
 
 [i) Stannard v. Ullithorne, 10 Bing. 491 ; Godefroy v. Jay, 7 Bing. 413 : 
 Burdnn v. Webb, 2 Esp. 527 ; re Dangar's trusts, 41 Ch. D. 178 ; 58 L. J. 
 Ch. 315 : Bhjth v. Fladgate, [1891] 1 Ch. 337 ; 60 L. J. Ch. 66. 
 
 {Jc) 5 B. & C. 259, 266.
 
 ACTIONS AGAINST ATTORXIES. 4G5 
 
 injury is merely consequential damage, not a fresh cause of 
 action : the damages then in the original action must cover all 
 the loss that can ever arise, because no such loss can afterwards 
 be compensated. Where the action was for negligence in not 
 procuring the release of the plaintiff, an imprisoned debtor, 
 under 48 Geo. II. c. 123, by reason of which he was detained 
 in prison from the 11th of January till the ll)t4i of March, 
 when he was discharged by consent of the detaining creditor ; 
 the jury were told that in estimating the damages they might 
 take into consideration that, as the plaintiff was finally released 
 by consent, he gained the advantage of having his goods no 
 longer liable, which they would have been if he had been dis- 
 charged by the Court, as he had himself desired (I). With sub- 
 mission, however, it may be doubted whether the latter circum- 
 stance could be fairly taken into consideration. If it had been 
 a necessary result of the defendant's delay that a prolonged 
 period of imprisonment should be followed by an absolute 
 discharge from all liability, then, in estimating the damages due 
 for such negligence, all its consequences would, of course, be 
 properly included. But in this case, the final release by consent 
 was in no way a result of the defendant's act. If some friend, 
 compassionating the plaintiff on account of his continued im- 
 prisonment, had paid off the debt, surely this could not have 
 been considered in assessing the damages. Yet it might have 
 been equally argued, that if the plaintiff had got oat at the 
 time and on the terms which he had wished, the sympathies of 
 his friend would never have been excited in his favour. 
 
 Where, in consequence of the attorney's negligence in not 'Where recoixl 
 attending himself with the witnesses, the plaintitt''s counsel is ^"^ ^"'' ''^*°* 
 obliged to withdraw the record, the attorney is, of course, liable 
 to the expenses so incurred (wi). And where a larger sum was 
 given as damages, the Court considered them excessive, aud 
 ordered them to be reduced, or a new trial granted (n). 
 
 Where, however, the attorney is acting for the defendant in When cause 
 a cause, and through his negligence it is taken as undefended, u^*fgfg"^gj 
 and a verdict goes against his client in consequence, the jury 
 may of course give as damages the whole value of the subject- 
 
 (l) Shilcoch V. Passman, 7 C. & P. 230—293. 
 [in) See as to these, 'post, p. 466. 
 (n) Hawkins v. Harwood, i Ex. 503. 
 
 M.D. H H
 
 466 ACTIONS AGAINST WITNESSES. 
 
 matter of action (o). In such a case the Court, in one instance, 
 granted a new trial, and ordered the defendant's attorney to 
 pay all costs out of his own pocket as between attorney and 
 client {p). But in similar cases the Court have since refused 
 the indulgence (?). Still in cases of very great importance, as 
 for instance relating to land, where the interests of others would 
 be bound by the verdict, the Court would probably even now 
 srrant a new trial on such terms (r). If such an arrangement 
 had been made, it would seem that the damages ought to be 
 nominal, or at least should only extend to the actual loss 
 suffered by delay, if any. 
 
 6. Actions against witnesses. 
 
 Where a witness, who has received a proper siibpoena, and 
 who has had his expenses tendered, fails to attend at the trial, 
 the party summoning him has his choice of proceeding against 
 him by attachment, or by action on the case, or he may sue 
 for the penalty given by 5 Eliz. c. 9, s. 12. With the former 
 course we have nothing to do. The two latter require a few 
 Avords. 
 Procedure in* The proper course for a party to take when an important 
 case of absence -^{tness is absent, is to withdraw the record if he be the 
 
 of witness. . i • « i 
 
 plaintiff (s), or apply for a postponement of the trial if he be 
 
 the defendant. This leaves him his remedy against the wit- 
 ness, for it is now settled that in order to maintain an action 
 against the latter for non-attendance, it is not necessary that 
 the cause should have been called on, or the jury sworn (f). It 
 also saves him all risk which might result from a trial on imper- 
 fect evidence. Consequently, any additional expense or loss 
 caused by going to trial will be his own fault, and not the 
 necessary result of the witness's absence. 
 Damages in an The damages in an action by the original plaintiff, who was 
 costs^of with- forced to withdraw the record, consist of the expense he was 
 
 drawing the put to in SO doing, viz., the costs he incurred by going down 
 record. 
 
 (o) Hobv V. Built, 3 B. & Ad. 350. 
 
 (_p) De Rmfigny v. Pcale, 3 Taunt. 484. 
 
 \q) Gwilt T. Crawley, 8 Bing. 144 : Watson v. Beeie, 5 B. X. C. 112 : 
 Xa.ik V. Swinburn, 4 Sco. N. R. 326. 
 
 (r) Swinnerton v. Marquis of Stafford, 3 Taunt. 91 : Lowden v. Hierons, 
 2 Moore, 102. 
 
 (s) Leave is required for this now. Ord. 26, R. 1. 
 
 {t) Mullett V. Hunt, 1 C. & :\r. 752 : Lamont v. Crook, 6 M. & W 
 615.
 
 ACTIONS AG.UXST WITNESSES. 467 
 
 to a fruitless trial, and the costs lie became liable to pay the 
 opposite party in consequence of the withdrawal of the 
 record (n). The damages would be just the same where the 
 witness was the defendant's, because he may obtain the post- 
 ponement of the trial, upon paying the costs which the opposite 
 party has been put to in preparing for trial, which are the same 
 as the costs of withdrawing the record (.r). 
 
 This action cannot be supported without evidence of some plaintiff must 
 damage resulting from the defendant's neglect. Such damage 1"'°^'^ damage, 
 cannot, however, be negatived merely by showing that the 
 plaintiff had no good cause of action. The defendant's evi- 
 dence might have entitled him to succeed in some particular 
 issues, and the loss of costs upon these is a sufficient injury, 
 though he could not have succeeded upon the whole record ( ?/). 
 
 Statute 5 Eliz. c. 9, s. 12, enacts that a witness making Action for 
 default after due process served, and tender of expenses, shall Penalty, 
 forfeit 10/., and yield such further recompense to the party 
 grieved, as by the discretion of the Judge of the Court, out of 
 which the said process issues, shall be awarded, according to 
 the loss and hindrance that the party shall sustain by reason of 
 his non-appearance. These damages must be assessed by the 
 Court at Westminster, and not by a jury, or Judge at Xisi 
 Prius, and an action will lie on the assessment (s). An action 
 will not lie against a witness for false and defamatory state- 
 ments concerning the plaintiff made in the due course of a 
 judicial proceeding, though they be made maliciously and 
 without reasonable and probable cause, and have caused damage 
 to the plaintiff (a). 
 
 7. Defamation. 
 
 Damages in this action are so entirely at the discretion of 
 the jury that no rule as to their amount can be laid down. 
 
 (u) Needham v. Fraser, 1 C. B. Slo. 
 
 (,r) Brown v. Murray, 4 D. & K. 830 : Attorney-General v. Bull, 2 Dowl. 
 P. C. Ill : Walker v. Lane, 3 Dowl. P. C. 504. 
 
 ^y) Couling v. Coxe, 6 C. B. 703, 719. To justify substantial damages it 
 is not necessary to show that the witness's testimony would to a certainty have 
 ensured a successful result : a probability of success is sufficient : Yeatman 
 V. Dempsey, 7 C. B. N. S. 628 ; 29 L. J.' C. P. 177 ; affirmed, 9 C. B. N. S. 
 881. 
 
 (z) Pearson v. lies, 2 Dougl. .561. 
 
 (a) Eevis v. Smith, 25 L. J. C. P. 195 ; 18 C. B. 126 : Seaman x.Xetler- 
 cliff, 2 C. P. D. 53 ; 46 L. J. C. P. 128 ; and see per Erie, C. J., Barber v. 
 Zesiter, 29 L. J. C. P. 165 ; 7 C B. N. S. at p. 188. 
 
 H H 2
 
 468 
 
 DEFAMATION. 
 
 Evidence of 
 malice : 
 
 other slander. 
 
 Some principles, however, may be stated as to the natm-e of 
 the evidence which may be used, and the object to which it> 
 may be apphed. 
 
 One of the principal elements in estimating the damages is 
 the malice of the defendant, and much difficulty often arises 
 with regard to evidence of subsequent words or writings adduced 
 in proof of this. 
 
 It has been long established that other words or writings, 
 not the subject of the present action, might be given in evi- 
 dence to explain either the meaning or motive of the defama- 
 tory matter on which the action was founded (&). And that 
 whether the publications, &c., offered in evidence were before 
 those complained of (c), or after issue joined in the action (d) ; 
 and even though the writing or publication is itself the subject 
 of a distinct count in the same action (e). But it has been held 
 that such evidence must be in some way connected with the 
 libel in question (/). It may be doubted, however, whether 
 this distinction is a very reasonable one. If the object of the 
 evidence is to prove malice by showing the feelings with which 
 the defendant was actuated towards the plaintiff, this would be 
 proved much more strongly by showing that he had seized a 
 dozen opportunities of maligning him on different subjects, 
 than that he had a dozen times repeated the original libel. 
 Formerly it was thought that no such evidence could be received 
 when the words, &c., so offered were themselves actionable (g). 
 But this distinction was early denied by Lords Kenyon and 
 Ellenborongh (A), and has been finally overthrown (?'). So too 
 it was once laid down that sucli evidence was only admissible 
 where the language complained of was ambiguous ; but where 
 
 (6) Simpson v. Robinson, 12 Q. B. 511 : Plunkeii v. Cobhctt, 5 Esp. 136 : 
 Camfield v. Bird, 3 C. & K. 56. 
 
 (c) Barrett v. Long, 3 H. L. Ca. 395. 
 
 {d) Madeod v. JVakley, 3 G. & P. 311. If tliere has been a considerable 
 interval, the jury should be directed to consider whether the subsequent ex- 
 pressions might not have referred to something which had happened after the 
 libel : Hemmings v. Gasson, E. B. & E. 316 ; 27 L. J. Q. B. 252. 
 
 (e) Delegall v. Highley, 8 C. & P. 444. 
 
 (/) Finaerty v. Tipper, 2 Camp. 72. 
 
 Ig) Mead v. Dauhigny, Peake, 125 : Cook v. Field, 3 Esp. 133: Defries 
 T. Davis, 7 C. & P. 113. 
 
 (A) Lee V. Huson, Peake, 166 : Rustell v. Macquister, 1 Camp. 49, n. 
 
 (i) Pearson v. Lemaitre, 5 M. & Gr. 700.
 
 DEFAMATION. 469 
 
 it was clear and undisputed, it was not so (/). But this dis- 
 tinction, though quite just, if the only object of the evidence 
 were to explain the meaning of the libel, obviously fails when 
 the evidence is adduced to show the motives with which it was 
 published. These may be quite independent of the meaning of 
 the libel, of which there may be no doubt. Accordingly, this 
 distinction too has been overruled by Pearson v. Lemaifre, 
 where Tindal, C. J., lays down the correct rule to be, " that 
 either party may, with a view to the damages, give evidence to 
 prove or disprove the existence of a malicious motive in the 
 mind of the publisher of defamatory matter, but if the evi- 
 dence given for that purpose establishes another caus3 of action, 
 the jury should be cautioned against giving any damages in 
 respect of it ; and if such evidence is offered m.erely for the 
 purpose of obtaining damages for such subsequent injury, it 
 will be properly rejected (A-:)." 
 
 On the same principle the fact that the defendant has Persisting in 
 persisted in the accusation and refused to apologise, and that 
 he has put a plea of justification on the record, may be taken 
 into consideration as evidence of malice to heighten the 
 damage (/). But the latter circumstance Cc..-noL be used as 
 evidence of express malice, in answer to another p:ea raising 
 the defence of a privileged communicaticn : though if that 
 plea were found for the plaiutiflF, it would be an aggravation of 
 the damages (m). Even where the publication is admitted on 
 the pleadings, the plaintiff is entitled to show the mauner of it 
 with a view to damages (n). Lord Esher, M. R., has laid it 
 down as a general rule that in actions of libel, the jury in 
 assessing damages are entitled to look at the whole conduct of 
 the defendant fi-om the time the libel was published down to 
 the time they give their verdict. They may consider what his 
 
 (j) Stuart V. Lovell, 2 Stark. 93 : Fearce v. Ornshy, 1 M. & liob. 455 : 
 Symmons v. Blake, ibid. 477. 
 
 (k) 5 M. & G. at p. 719. Omitting to give thi.s caution is not misdirection ; 
 Darby v. Onseley, 1 H. & N. 1 ; 1:, L. J. Ex. 227. 
 
 ^l) Simpson V. Robinson, 12 Q. B. 511. Even tlie language of counsel^ in 
 Court, if instructed to persist in tlie cbarge, may aggravate the damages ; ib., 
 and see Darby v. Ouseley, per Pollock, C. B., 25 L. J. Ex. at pp. 280, 233 : 
 Msk Allah lley v. White/mrst, IS L. T. N. S. 615, ^Jtr Cockl>urn, C. J., at 
 nisi prills. 
 
 (m) Wilson v. Robinson, 7 Q. B. 68. 
 
 (ji) Vines V. Serell, 7 C. & P. 163.
 
 470 DEFAMATION. 
 
 conduct has been before action, after action, and in Court during 
 
 the trial (o). 
 
 General evi- General evidence of g-ood character cannot be given in aggra- 
 
 dence of ^•ilLion of damage, exceijt to rebut evidence offered by the other 
 
 character to _ . . . ... 
 
 prove raalicc. side ; for till then the presumption of law is in the plaintiff's 
 
 favour, and the evidence would (in theory at all events) be 
 without an object (j^). 
 
 VYhen the libel consists of an accusation imputing incom- 
 petency in a particular transaction, evidence cannot be offered 
 of general competency on other occasions. This could only 
 ])e admissible to show malice, by disputing the charge. But 
 a person may have shown himself quite incompetent on one 
 occasion, and quite the reverse on others (q). The contrary 
 rule prevails where the accusation is as general as the evidence 
 offered to rebut it. Accordingly where the defendant had 
 written of the plaintiff, who had acted as governess in the 
 defendant's family, " I parted with her on account of her incom- 
 petency, and not being ladylike and good-tempered ; " general 
 evidence in contradiction of the statement was received. Lord 
 Denman said, " Malice may be established by various proofs : 
 one may be that the statement is false to the knowledge of the 
 party making it " (r). 
 Evidence of Where it appears that many copies of a newspaper containing 
 
 the circulation ^ \[\^^i [^^ve been put iuto circulation, this will be admissible to 
 
 ot the liliel. ' 
 
 aggravate the damages on the ground of malice, if the defen- 
 dant can be expressly connected with the circulation : if he 
 cannot, no presumption of ii;alice can be drawn, but the fact 
 will still be evidence to show the extent of injury done. This 
 was so ruled in a case where the defendant was the publisher 
 of a newspaper, which was industriously circulated in a par- 
 ticular neighbourhood, and sent gratuitously to several non- 
 subscribers, but not by the defendant (.s). The same rule 
 would clearly af^ply to a person not the publisher, if he puts 
 his libel into a shape which would ensure its circulation, 
 
 (o) Pmed V. Graham, 24 Q,. P.. D. 53 ; 59 L. J. Q. B. 230. 
 
 (p) Cornwall v. Richardson, Ey. & M. 005 : Gitii v. Gregory, 9 C. & P. 
 
 687. See post, p. 480. 
 
 (<■/) Brine v. Baadgette, 3 Ex. 092. 
 
 (?•) Fountain w. Boodle, 3 Q. li. 5 ; so Harrison v. Bush, 5 E. & B., at 
 p. 863, et seq. ; 25 L. J. Q. H. 99. 
 
 [s] Gathercole v. Miall, 15 M. & "\V. 319.
 
 DEFAMATION. 471 
 
 as into a newspapsr. Of coarse he would not be responsible 
 for its republication by a third person, in a way which he 
 could not have anticipated ; as for instance, if a private letter 
 containing a libel was printed by the receiver without his know- 
 ledge (t). 
 
 There may, however, be cases in which, from the form of When p.videuce 
 action, evidence of malice would be inadmissible. Accordingly "naOuiissible 
 in an action against the publisher of a magazine, no evidence 
 can be given of the malice ot the writer, who is a different 
 person, and for whose motives the editor cannot be liable, 
 though he is responsible by law for his acts («)• And so the 
 position of the plaintiffs may exclude evidence which would 
 otherwise be allowable. In a joint action by partners for a 
 libel, no danaages could till lately be given for the injury to 
 their feelings, as the only basis of the joint action was the Joint actions. 
 injury to their joint trade (.c). Now there seems no reusou 
 why partners should not recover separate damages in addition 
 to their joint damige (ij). An 1 in a joint action by husband 
 and wife for a libel on the wife, no special damages could be 
 recovered on ilte joint count, because any such damage was solely 
 accruing to the husband {z). But in an action brought by a 
 man and his wife for an injury done to the wife, in respect of 
 which she was necessarily joined as co-plaintiff, the husband 
 might add claims in his own right (a). Xow claims by hus- 
 band and wife may be joined with claims by them separately {h). 
 Therefore damages, whether joint or several, can be recovered 
 if properly claimed. Such joinder of claims in different rights 
 is only permissive, not imperative. If they are not joined, the 
 recovery of damages by husband and wife, in right of the wife, 
 is no bar to a fresh action by the husband is his own right (c). 
 
 Where the cause of action is proved or admitted, the jury are Substantial 
 not limited to nominal dama<j;es, thou2;h no evidence is given ^-'^'"^^'S*^^ '^'■^J 
 
 ° ' ° ° be gtven with- 
 
 out proof of 
 
 actual injury. 
 
 (t) See WardY. Weeks, 7 Bing. 211, et post, p, 476. 
 
 («.) Robertson v. Wylde, 2 JL & Rob. 101. 
 
 {x) Uaythorn v. Luwson, 3 0. k P. 196 : Lcfana v. Malcolmson , S Jr. L. 
 R. 418. 
 
 (?/) Ord. 16, Rule 1. Booth v. Briscoe, 2 Q. B. D. 436. See ante, ]>. 4.J3. 
 
 (;) Denfjute v. Gardiner, 4 M. & W. 5. 
 
 [a) 15 &16 Vict. 376, s. 40. 
 
 (6) Ord. 18, R. 4. 
 
 (c) Brockhaak v. Whitthaceii Junction Jli/. Co , 7 U. L N. 834 ; 31 L. J 
 E.x. 349.
 
 472 
 
 DEFAMATION. 
 
 Future 
 damage. 
 
 Evidence of 
 specific injury 
 after action 
 brought. 
 
 on the part of the plaintiflF(</). In a recent case the action 
 was for a newspaper libel published more than seventeen years 
 ago. In bar of the statute it was proved that a single copy had 
 been sold by the defendant to plaintiff's agent. It was held 
 that the judge was not bound to tell the jury, that they 
 ought to limit the damages to the injury which they might 
 believe tlie single publication had occasioned (e). In the 
 particular case there were, other counts for other libels more or 
 less connected with it, which would have made the separate 
 assessment of damages very difficult ; but on principle the 
 decision is ob\'iously correct. 
 
 AVhere the words are actionable without special damage, the 
 jury may take into consideration not only the injury that has 
 arisen, but that which may arise from the slander ; because 
 snch fresh injury would constitute no frtsh ground of action (/). 
 But it is said by North, C. J., in the same case {g), that if the 
 words are not in themselves actionable, the jury in computing 
 damages ought only to consider the damage which is specially 
 aheged and proved ; because if any damage be at a future time 
 sustained, a subsequent action will lie for it. And so where 
 evidence of special damage, subsequent to the commencement 
 of the suit, was admitted by consent, Tindal, C. J., said, " By 
 permitting this evidence to be given, the defendant may 
 possibly have escaped having a second action brought against 
 him " (A). But this is opposed to the authority of a dis- 
 tinguished judge, who lays it down, that where a plaintiff has 
 once recovered damages, he cannot afterwards bring an action 
 for any other special damage, whether the words be in them- 
 selves actionable or not (/). 
 
 Of course special damage, laid as such, must have accrued 
 before action ; but a different question arises, whether a specific 
 injury after action may be given in evidence to enable the jury 
 
 {d) Tripp V. Thomas, 3 B. & C. 427 : Hayward v. Hayivard, 34 Ch. D. 
 198 ; 56 L. J. Ch. 287. So in an action for maliciously defacing a written 
 character by defamatory words : U'ennhak v. Morgan, 20 Q. B. D. 635 ; 57 
 L. J. Q,. B. 241. 
 
 (e) Duke of Brunswick Y. Harmcr, 14 Q. B. 185. 
 
 (/) Lord Toionshend v. Huqhcs, 2 Mod. 150 : Ingram v. Lawson,6 Bing. 
 N. C. 213 : Gregori/ v. Williams, 1 C. & K. 568. 
 
 (f/) Lord Townshend v. Hughes, SKjva. 
 
 (h) Goslin v. Corr//, 7 M. & Q. 342, 345. 
 
 (z) Bull, N. P. 7 ; citing Fitter v. real, Ca. K. B. 542.
 
 DEFAMATION. 
 
 473 
 
 to estimate the amount of general damage ? An action was 
 brought by a shipowner for a Ubel, which stated that his ship, 
 then advertised to sail to the East Indies, was not seaworthy, 
 and was purchased by Jews to take out convicts. No special 
 damage was laid. The action was commenced three dajs after 
 the libel was published. Evidence was admitted of the average 
 profits of a voyage co the East Indies, and that the first voyage 
 after the libel, the plaintiff's profits were nearly 1500/. below 
 the average. It was held that the evidence was rightly 
 received. The jury must have some mode of estimating the 
 damages, and they could not be in a condition to do so, unless 
 they knew something of the plaintiff's business, and of the 
 general return of his voyages (/<;). The same principle was 
 applied where the action was for a description of the plaintiff 
 in the Hue and Cry, in consequence of which he was arrested. 
 The arrest, which was laid specially,^ took place after action 
 brought. Evidence of it was allowed by consent of defendant's 
 counsel, who then objected that the judge ought to have ex- 
 cluded it from the minds of the jury in assessing the damages. 
 It was held that the judge's charge was right, as he did not tell 
 the jury that they were at liberty to give damages for the arrest 
 which took place after action brought, but that they might view 
 it as a confirmation of the plaintiff's apprehension that an 
 arrest would be the probable consequence of the libel (/). This 
 was obviously the only way in which the evidence could be 
 used, but it seems to have been assumed throughout that it 
 was not strictly admissible at all. Now it is plain, that in 
 estimating damages the jury must be greatly influenced by the 
 probability that an arrest would take place, and on the principle 
 of I?7gram Y. La ic'son, exidence that it had taken place, even 
 after action, was surely admissible. Possibly the difficulty in 
 this case arose from the fact, that that very arrest was laid as 
 special damage, and to prove that allegation it plainly was 
 inadmissible. 
 
 Where words are in themselves actionable, no special damage Proof of 
 need be laid or proved ; the law presuming that the uttering general injury, 
 of the words, or the publishing of the libel, havu in themselves 
 
 (k) Inrjram v. Lauson, 6 Biiig. N. C. 2] 2. 
 (l) Goslin V. Carry, 7 M. & (ir. 3^ 2.
 
 474 DEFAMATION. 
 
 a natural and necessary tendency to injure the jjlaintiff (m). 
 From this the curious inference \vas once drawn, that because 
 the law assumes that a general injury will follow, you cannot 
 prove that a general injury has followed. In an action for a 
 libel against a trader, special damage was laid. Plaintiff's 
 counsel proposed to rely only on general injury, and to ask 
 whether there had not been a general loss of luisiness since the 
 libel. Tindal, C. J., said, " Xo, that would be so very hard 
 against the party. You set out with that, you see. The 
 law gives it to you as a bonus. If you want specific damages 
 you must give specific evidence " (yi). "Where, however, the 
 action was for libel on an actress, in consequence of which she 
 would not sing, and the declaration alleged as damages the loss 
 of several performances, Lord Kenyon ruled that the box- 
 keeper might be asked generally, whether the receipts of the 
 house had not diminished from the time Madame Mara had 
 declined to sing ? but that to ask if particular persons had not 
 in consequence given up their boxes, was specific damage and 
 inadmissible (o). Similar evidence was received in the case of 
 Ingram v. Lawson {j)). There, however, it seems to have been 
 admitted, not with a view to show w'hat the plaintiff's loss had 
 been, but what the general nature of his business and profits 
 was. For it will be remarked that though the evidence showed 
 a falling off of laOO/., the jury only found a verdict for 900L 
 In Eose v. Groves, Cresswell, J., took a distinction between 
 particular and special damage, saying, "In an action for 
 t-landeriug a man in his trade, when the declaration alleges 
 that he thereby lost his trade, he may show a general damage 
 to his trade, though he cannot give evidence of particular 
 instances " {q). There seems a difficulty with regard to the 
 admission of the evidence, as to the mode of connecting the 
 slander with the falling off. On the other hand, there is an 
 obvious injustice in excluding what, in the mass of cases, must 
 be the only evidence of damage really procurable. It must. 
 
 (ni) Malachy v. Soper, 3 B. N. C. 38'2. 
 
 [n] Delerjall v. Uighley, 8 C. & P. 448. 
 
 (o) Asldey v. I/arrison, 1 Esp. 48. 
 
 (2J) Ante, p. 473. 
 
 (7) 5 M. & Gr., at p. 618. So Erans v. Harries, 1 H. & N. 2.'51 ; infra. 
 Ridimj V. Smith, 1 Ex. D. 91, 45 L. J. Ex. 281 ; ante, p. 78 : Jiatdiffe v. 
 £vans, [1892] 2 Q. B. 524.
 
 DEFAMATION. 475 
 
 however, be sliown that the worels complained of were uttered 
 under circumstances which might, in the ordinary course of 
 things, have directly produced the general damage that has in 
 fact occurred (r). 
 
 Special damage must be laid and i^roreiJ, where the words are Special damage 
 not actionable without it. In this case the special damage is 
 the gist of the action (.s). General loss of business, if sufficiently 
 laid and proved, will be sufficient special damage (0- 
 
 Even though the words are in themselves actionable, no must be laid. 
 evidence of any specific loss sustained in consequence of them 
 can be adduced, unless laid in the declaration (?<)• It is 
 sufficient, however, to state the special damage with as much 
 certainty as the case will admit of. It has been said that if a 
 trader brings an action for slander, by which he lost his 
 customers, their names must be set out specially, that the 
 defendant may meet the charge if it is false ; and that where 
 this is not done, general evidence of loss of customers cannot 
 be received (.?•)• But a clergyman laying as special damage the 
 loss of his congregation, is not required to state their names, on 
 account of the supposed impossibility of so doing (//). The 
 principle is clear enough, but the distinction between the two 
 cases seems rather fine. More recently, in an action for slander 
 of the plaintiff in his business of an innkeeper, it was held 
 sufficient to allege and prove as special damage a general loss 
 of custom, without stating the names of customers (z). 
 
 (r) Rutcliffe v. J::vans, [1892] 2 Q. B. at p. 530, per Bowen, L. J. ; 61 L. 
 J. Q. B. 535. 
 
 (s) See the Text Bks., Selw. N. P. ; 12 ed. 1269; Com. Dig. Action 
 upon the case for Defamation, D. 30. See also Malachy v. Sopcr, 3 B. N. C. 
 371 : Ayre v. Craven, 2 A. & E. 2 : Evans v. Harlow, 5 Q. B. 624 : Wilhf 
 V. Ehto'n, 8 C. B. 142 : Hoimood v. Thorn, ibid., 293: Dlxun v. Smith, 
 5 H. & N. 450 ; 29 L. J. Ex. 125 ; where it was held that general damages 
 for loss of business, which might have resulted from a repetition of the 
 slander, could not be recovered. 
 
 (0 Ratdiffe v. Evans, [1892] 2 Q. B. 524. See as to the degree of 
 certainty and particularity with which the damage ought to be stated and 
 proved ; per Bowen, L. J. at p. 532, and post, p. 556. 
 
 (m) Geare v. Britton, B. N. P. 7 : Ilatheway v. Ncivman, Selw. X. P. 
 1248. 
 
 [x) Hartley v. Herrimj, 8 T. R. 133 : Waterhouse v. Gill, Selw. N. P. 
 1248. 10th ed. See, however, per Cresswell, J., supra. 
 
 (,(/)' HarUey v. Herring, 8 T. R. 130. 
 
 (z) Evans y. Harries, 1 H. & N. 251 ; and see M'LonfjhUn v. \\dsli, 10 
 Ir. L. R. 19 ; and Ratd'.xTe v. Evans, [1892] 2 Q. B. p. 524 ^C. A.) ; 61 L. 
 J. Q. B. 535.
 
 476 
 
 DEFAMATIOX. 
 
 Special damage 
 must be the 
 result of 
 defendant's 
 own acts. 
 
 When the act 
 of a third 
 party will be 
 good special 
 damage. 
 
 As to special damage, which must be the loss of some 
 material temporal advantage {a), that only which is the natural 
 and fair result of the words spoken can be laid, or proved. 
 The application of this rule is not so very easy. One point has 
 been frequently laid down, viz., that no damage can be re- 
 covered for, which is the result, not of the original slander by 
 the defendant, but of the repetition of that slander by some 
 third person. In such a case, the immediate cause of the 
 plaintiff's damage arises from the voluntary act of a free agent 
 over whom the defendant has no control, and for whose acts he 
 is not answerable (&). But where the words are used under 
 circumstances which render it certain that they will be repeated, 
 and they are repeated by persons whose duty it is to report 
 them, injury accruing from such report is, it seems, admissible ; 
 as where a police constable was dismissed in consequence of 
 language addressed to him by a police magistrate in trying a 
 cause, which was reported in due course to the commissioners (c). 
 And so it has been held to be a material allegation in a state- 
 ment of claim in an action for libel, that the defendant knew 
 that the words pul)lished by him would be, and in fact were, 
 repeated and published in editions of the same paper published 
 abroad {d). 
 
 It was once thought that damage resulting from the act of 
 a third party, though caused by the language of the defendant, 
 would not be actionable if it was in itself a ground of action by 
 the plaintiff against such third party (e). This doctrine, how- 
 ever, was long doubted (/), and is now finally overruled {g). 
 In practice, the same result will probably be reached in many 
 cases, by aid of the doctrine that damages must not be too 
 
 (a) Boherts and Wife v. Roberts, 5 B. & S. SS4 ; 83 L. J. Q. B. 249. 
 
 (6) Ward v. ]Vteks, 7 Bing. 211 : Vicars v. Wilcocks, 8 East, 1 ; 2 
 Smith's L. C. 537, 9th ed. : Tunnidiffe v. Moss, 8 C. & K. 83 : Dixon v. 
 Smith, 5 H. & N. 450 ; 29 L. J. Ex. 125 : Bateman v. Lyall, 7 C. B. N. S. 
 638. See the subject discussed, ante, p. 7fi, et seq. 
 
 {c) Kendillon v. Maltby, Car. & M. 402: Derry v. Handley, 16 L. T. 
 N. S. 263, Q. V). It is not the duty of a wife to report to her husband 
 slanderous abuse of herself : Parkins v. Scott, 1 H. & C. 153 ; 31 L. J. Ex. 
 331. 
 
 (d) Whitney v. Movjnard, 24 Q. 15. D. 630 ; 59 L. .J. Q. B. 324. 
 
 (e) Vicars v. Wilcocks, 8 East, 1 ; 2 Smith's L. C. 537, 9th ed. : Morris 
 V. Langdale, 2 B. & P. 284, 289. 
 
 (/) Green v. Button, 2 C. M. & R. 707, 2 Sm. L. C. 586—591, 9th ed. 
 (<j) Lumley r. Gye, 2 E. & B. 216, ante, p. 75.
 
 DEFAMATION, 
 
 remote. Where the act of the third party is plainly rash and 
 illegal, it will perhaps be held not to be the natural result of the 
 defendant's words. 
 
 If, however, the obvious intention, or the natural result Where damage 
 of the defendant's w^ords was to induce another to commit an |.gguito^thT 
 illegal act, there seems no reason why he should not be made slander, 
 answerable for the consequences. In Lynch v. Knight (h), 
 Lord Wensleydale said, " I strongly incline to agree with Mr. 
 Justice Christian, that to make the words actionable, by reason 
 of special damage, the consequence must be such as, taking 
 human nature as it is, with its infirmities, and having regard 
 to the relationship of the parties concerned, might fairly and 
 reasonably have been anticipated and feared would follow from 
 the speaking of the words, not what would reasonably follow, 
 or we might think ought to follow." " I cannot agree that the 
 special damage must be the natural and legal consequence of 
 the words, if true. Lord Ellenborough puts as an absurd case, 
 that a plaintiff could recover damages for being thrown into a 
 horse-pond, as a consequence of words spoken ; but I own I 
 can conceive that when the public mind was greatly excited on 
 the subject of some base and disgi-aceful crime, an accusation 
 of it to an assembled mob might, under peculiar circumstances, 
 very naturally produce that result, and a compensation might 
 be given for an act occurring as a consequence of an accusation 
 of that crime." Suppose, for instance, that during the war of 
 1870, an Enghshman had been pointed out to a Parisian mob 
 as a German spy, and thrown by them into the Seine, it could 
 not be contended that one act was not the natural and neces- 
 sary consequence of the other. In Lynch v. Kniylif, the special 
 damage, which was alleged as making the words actionable 
 was that they imputed to the wife unchastity, in consequence 
 of which the husband refused to live with her. There the 
 judges doubted whether the words really did contain any 
 imputation upon the wife, which would naturally have led the 
 husband to act as he did. The case was further complicated by 
 the circumstance that the wife was plaintiff, and had to join 
 her husband for conformity. Consequently he was, in fact, 
 complaining of his own act. But the majority of the Lords 
 
 (h) 9 H. L. Ca. 577 ; 2 Sm. L. C. 535, 
 
 9th ed.
 
 too remote. 
 
 478 DEFAMATION. 
 
 seemed to have no doubt upon the general principle, that a man 
 would be responsible for an injury which was the natural result 
 of his own words, though the injury was iu itself an illegal act. 
 For instance, suppose a person informed a husband that he had 
 just seen a man committing adultery with his wife, and the 
 husl)and immediately followed the alleged paramour, and horse- 
 whipped him ; could it be contended that the slanderer would 
 not be liable to an action, in which damages for the assault 
 would be recoverable ? 
 Special damage Where an actual injury has followed the slander, it is no 
 answer to show that the third person would have probably acted 
 in the same way, had the slander not been used (^), if the act 
 did in fact follow from the words. But an injury which did 
 not naturally ensue from the libel, and might have arisen from 
 other causes, cannot be ground of action. Defendant pubhshed 
 a libel on an actress wdiom plaintiff had engaged to sing for 
 him ; she refused to sing from fear of being hissed, and he 
 claimed for loss of profits. Lord Kenyon said, the injury was 
 too remote and impossible to be connected with the cause 
 assigned for it. Her refusal to perform might have proceeded 
 from groundless apprehension of what might never have 
 happened, or from caprice or insolence (^'■). Of course, where 
 words do not in themselves, or by the interpretation put upon 
 them by the plaintiif in his declaration, bear a defamatory 
 meaning, no amount of special damage will form a ground of 
 action, or be admissible in evidence. Such special damage is 
 not the natural or necessary consequence of the words (?). Nor 
 can evidence be received of injury to other persons than the 
 plaintiff, as, for instance, to his wife, though she was one of the 
 persons assailed in the libel (;??). 
 
 The loss of substantial hospitality, which had been a perma- 
 
 (t) KnigJit v. Gihhs, 1 Ad. & Ell. 43 ; cited ante, p. 61. 
 
 (k) Ashley v. Harrison, 1 Esp. 49. See Haddan v. Lott, 15 C. B. 411 ; 
 22 L. J. C. r. 49 : Chamherlain v. Boyd, 11 Q. B. D. 407 ; 52 L. J. Q. B. 
 277. 
 
 (/) Morris v. Langdale. 2 C. & P. 2S4 : KeUy v. rarUncjton, 4 B. & Ad. 
 G45. But tbe Court of Common Pleas considered it still undecided whether 
 words not in themselves actionable or defamatory, spoken under circumstances 
 and to persons likely to create damage to the sutiject of the words, might not 
 when the damage followed, be gi-ound of action : Miller v. David, L. R. 9 
 C. P. at p. 126 ; 43 L. J. 0. P. at p. 87. 
 
 (m) Guy V. Gregory, 9 C. & P. 584.
 
 DEFAMATION'. 479 
 
 nenfc aduition to the plaintiff's income, is good ground of 
 special damage (n). Loss of the society of acquaintances is not, 
 nor illness resulting from the slander (o). 
 
 As a general rule any evidence may be given in behalf of the Evhlence in 
 defendant to prove the absence of malice, with a view to miti- ^^^^l^'lle'"'^^ " 
 gate the damages (^^). Accordingly he may show that he said, ^1^^^^ ^jgfgn. 
 at the time he spoke the words, that he heard the slanderous dant did not 
 matter from another person whom he named, and may prove y^^^li ' 
 the truth of this (q) ; or that he had copied the statements 
 from another newspaper (r). But he cannot show that the 
 defamatory matter appeared simultaneously in other papers (s). 
 And where the words profess to be an account of what took 
 place in a court of justice, although this would be no defence 
 Tinless the account is perfectly fair and accurate, still, even 
 though the report is not correct, if it is an honest one, and 
 intended to be a fair account of what really occurred, this will 
 be ground for reducing the damages (t). ^Ye have seen before, That he had 
 that persisting in a plea of justification which is abandoned, or ]^^1°^q ^^ 
 not proved, may be ground for increasing the damages. On 
 the other hand, facts which go to support such a plea may be 
 given in evidence in mitigation of damages, though they fail to 
 prove the plea ; and that whether there is a plea of justification 
 on the record or not ; and even where there has been such a 
 plea, which has been withdrawn (;<)• Where, however, such 
 facts would, if pleaded, be a complete bar to the action, they 
 cannot be adduced even in mitigation of damages (.r). This 
 was probably the ground of the decision in Vessel/ v. Pike (y), 
 of which we have ouly a very meagre report, where evidenca 
 
 (n) Moore v. Meagher, 1 Taunt. 39 : Davies and Wife v. Solomon, L. R. 
 7 Q. B. 112 ; 41 L. J. Q. B. 10. 
 
 (o) AUsop V. Allsop, 5 H. & N. 534 ; 2D L. J. Ex. 315 ; and see Roberts 
 V. Roberts, cited ante, p. 476. Whether a wife can sue for words occasioning 
 the loss of the consortium of her husband, was discussed but not decided, in 
 Lynch v. Knight, 9 H. of L. Cases, 577 ; 2 Smith's L. C. 585, 9th ed. 
 
 {■p) Pearson v. Lemaitre, 5 M. & Gr. 700 ; 6 See. N. R. 607. 
 
 (q) Bennett v. Bennett, 6 C. & P. 588. 
 
 (r) iMullett V. Hidton, 4 Esp. 248 : Saunders v. Mills, 6 Ding. 213 : 
 Davis V. Cutbush, 1 F. & F. 487. 
 
 (s) 6 Bmg. 213. 
 
 {t) Smith V. Scott, 2 C. & K. 580. 
 
 (u) Chalmers v. ShackcU, 6 C. & P. 475 : Eaxt v. Chapman, 2 C. & P. 
 570. 
 
 (x) Speck V. Phillips, 5 M. k W. 279. 
 
 (y) 3 C. & P. 512.
 
 480 
 
 DEFAMATION. 
 
 That he had 
 received pre- 
 vious provo- 
 cation. 
 
 General bad 
 character. 
 
 of this nature was rejected. In no case can facts so proved 
 go in bar of the action, unless there is a plea to support 
 them {s). 
 
 So evidence that the plaintiff had libelled the defendant, 
 though no defence to the action, will go in reduction of 
 damages (a). But such libels must be shown to relate to the 
 subject-matter of those published by the defendant (b). And 
 he must prove that the libel which he complains of came to his 
 knowledge before he libelled the plaintiff (c). 
 
 A very important question which has been constantly raised, 
 is as to the admissibility, in mitigation of damages, of evidence 
 showing that the plaintifflaboured under a general suspicion of 
 being guilty of the offence charged in the libel. The question was 
 ably discussed in a recent work on evidence, where all the 
 authorities were collected. The conclusion arrived at by the 
 learned author was that the weight of evidence inclined slightly 
 in favour of the affirmative, even though the defendant had 
 pleaded truth as a justification, and had failed in establishing 
 his plea (d). In a later case, however, the opinion of the Court of 
 Queen's Bench seemed on the whole against the evidence, and 
 they decided that it could only be received as to reports exist- 
 ting at the time of the publication, otherwise the reports 
 adduced to diminish the damages might have been caused 
 by the very slander for which the action ,was brought (e). 
 Such evidence must, in any case, be confined to the par- 
 ticular trait which is attacked by the libel, and cannot refer to 
 particular acts (/). 
 
 The whole of the cases were reviewed by Mr. Justice Cave in 
 the case of Scolt v. Sampson {g), when he pointed out that the 
 
 (2) Charlton v. Watton, 6 C. & P. 385. 
 
 (a) Finnerty v. Tipper, 2 Camp. 76 : Kelhj v. Sherlock, L. K. 1 Q. B. 686 ; 
 35 L. J. Q. B. 209 ; 7 B. & S. 480. 
 
 [h) May V. Broion, 3 B. & C. 113 : Tarpley v. Blahcy, 2 Bing. N. C. 437. 
 
 (c) Watts V. Fraser, 7 Ad. k Ell. 223. 
 
 {d} Tayl. Evidence, 327, 7th ed. This conclusion is omitted from the 8th 
 ed., p. 338. 
 
 (fi) Thompson v. Nye, 16 Q. B. 175. 
 
 (/) Tayl. Evidence, 329, 7th ed. In Ireland where the slander imputed to 
 an officer that he had stolen a gold chain, evidence of the plaintiff's being 
 generally reputed to have committed the act was rejected ; but evidence of 
 general bad character, or of his having some vicious habit leading to the par- 
 ticular act, was considered admissible : Bdl v. Parke, 11 Ir. C. L. R. 413. 
 See further, Bracegirdle v. Bailey, 1 F.& F. 536. 
 
 {cj) 8 Q. B. D. 491 ; 51 L. J. Q. B. 380,
 
 DEFAMATION. 481 
 
 decisions related to the admissibility — 1, of evidence of reputa- 
 tion ; 2, evidence of rumours of, and suspicions to the same 
 effect as, the defamatory matter complained of ; and 3, evidence 
 of particular facts tending to show the character and disposition 
 of the plaintiff. He arrived at the conclusion that general 
 evidence was admissible under the first head, but that evidence 
 tendered under the two others was inadmissible. It was said in 
 that case that the particular facts or circumstances intended to 
 be relied on, ought to be stated or referred to in the pleadings 
 under Order XIX. r. 4. But in a later case which threw some 
 doubt on the admissibility of general evidence of reputation, it 
 was held that matter which was only material in mitigation of 
 damages should not be pleaded (//). 
 
 In consequence of these cases the question of pleading has Notice to be 
 been settled by a special rule of Court now in force with regard acUonr 
 to actions for libel or slander. Where the defendant does not 
 allege the truth of the statement complained of, he cannot give 
 evidence in chief with a view to mitigation of damages as to 
 the circumstances of publication or character of the plaintiff 
 without leave of the Court, unless seven days before trial he 
 furnishes particulars to the plaintiff of the matters as to which 
 he intends to give evidence (i). 
 
 Where there is a i)lea iustifying a libel it is no evidence in Evidence of 
 proof of its truth, that the same imputations had been published ^"^^ o i e . 
 before, and that the plaintiff had submitted to them. The 
 fahacy lies in the word " submission." It comes to this only, 
 that he did not prosecute ; and there might be a great many 
 reasons for his not proceeding to prosecute,— the anonymous 
 nature of the article, not knowing whether it came froai a man 
 of character, or the poverty of the party himself {Jc). 
 
 Evidence of a mere collateral fact, as that the plaintiff has Former re- 
 already recovered against another person for the same libel, ^°t^Ji^j''^party. 
 cannot in general be given in mitigation of damages (/). But 
 by the Libel Act of 1888, in actions for newspaper libels the 
 defendant may prove in mitigation of damages that the plain- 
 tiff has already recovered or sued for damages, or received or 
 
 (h) Wood V. Earl of DurJiam, 21 Q. B. D. 501 ; 57 L J. Q. B. 547. 
 (i) 0. 36, K. 37. See as to interrogatories in suj pjrt of sucli a notice, 
 pod, p. 558. 
 
 (k) Rerj. V. Newman, 1 E. & B. 268. 
 \l) Creery v. Oarr, 7 C. & P. 64. 
 
 M.D. I I
 
 482 
 
 BRKACH OF PROMISE OF MAUIUAGE, 
 
 Apology for 
 libel ill news- 
 paper. 
 
 Actions for 
 breach of 
 promise of 
 marriage. 
 
 Evidence of 
 defendant's 
 condition in 
 life. 
 
 aoTeed to receive compensations in respect of libels to the same 
 purport or effect (m). 
 
 "Where in an action for a Hbel contained in a newspaper the 
 defendant pleads under 6 & 7 Vict. c. OG, s. 2, that the libel 
 was inserted without malice or gross neglig-ence, and that a full 
 apology was inserted, and pays money into Court by way of 
 amends, if the jury find the apology not sufficient, the damages 
 should be assessed irrespectively of the sum jwd into Court, 
 and without considernig that payment in any way as an 
 admission of liabihty (■»). 
 
 8. Actions for breach of promise of marriage ought strictly 
 to have been considered under the head of Contracts, in an 
 earlier part of this work. They are, however, of so exceptional 
 a nature, and so closely connected with actions for seduction, as 
 to the evidence which may be adduced, that I have thought it 
 more convenient to defer the examination till now. 
 
 It is quite needless to say that no attempt at fixing any 
 measure of damage can l)e made in regard to this species of 
 suit, or the other, just alluded to, which follows it. They stand 
 (»n a par with actions for libel as to the range of topics in which 
 counsel are allowed to indulge. Even the stereotyped direction 
 of the judge, that the jury should give " temperate " damages, 
 conveys no very definite idea to the mind. In a recent case 
 the action for breach of promise of marriage has been described 
 as one " which is based on the hypothesis of a broken contract, 
 yet is attended with some of the special consequences of a per- 
 sonal wrong, and in which damages may be given of a vin- 
 dictive and uncertain kind, not merely to repay the plaintiff 
 for temporal loss, but to punish the deffudant in an exemplary 
 manner " (o). 
 
 The circumstances which aggravate the damages in an action 
 of this sort are so obvious as to require no comment. One im- 
 porf.ant fact consists in the wealth and social position of the 
 defendant, as it shows what the plaintiff has lost by the breach 
 of contract (7;). Accordingly we find in one case, where the 
 
 (m) 51 & 52 Vict. c. 64, s. 6. 
 
 (n) Jones v. Mackie, L. K. 3 Ex. 1 ; 37 L. J. Ex. 1. 
 
 (o) Per Bowen, L. J., Fin'.ay v. Chirnei/, 20 Q. 15. I), at p. 504 ; 57 L. J. 
 Q. B. 247. 
 
 (p) Jamc.i V. IluhUiir/lou, 6 C. & P. 590 : Ban/ v. ]hi Co.stn, L. E. 1 
 C. P. 331— 3o6 ; 35 L. J. C. P. I'Jl. Hec jxr Bowcn, L. J., 20 Q. B. D. at
 
 BREACH OF PROMISE OF MARRIAGE. -483 
 
 action was brought by the gentleman against the lady, that 
 4:001. Avas held not to be an excessive amount of damages : the 
 fair one being, as the cold-blooded reporter says, " worth 3,0007. 
 when the plaintiff courted, and afterwards, by the death of her 
 brother, worth double that sum " (q). And so a verdict of 
 3, 500/. was supported in another case, where the defendant was 
 a man of property (r). 
 
 Where the plaintiff had been seduced by the defendant, it Aggravation 
 was held no misdirection to tell the jury that they might take ^ ^^ ^° ^°^' 
 into consideration the plaintiff's lessened prospect of marrying 
 another, and the difference of her position in returning to her 
 mother's house, not as a virtuous and respected member of the 
 family, but as a disgraced woman (s). It is evident, however, 
 that unless a direction to a jury to this effect is put, to use the 
 expression of Willes, J., " in the driest language " (/), a jury 
 will be apt to interpret it into permission to give damages for 
 the seduction ss well as for tlie brea(;h of promise of marriage. 
 The decision itself was affirmed and followed in a later case («)? 
 where the statement of claim in an action for breach of promise 
 of marriage contained an allegation, that " the plaintiff relying 
 upon the said promise, permitted the defendant to debauch and 
 carnally know her, whereby, the defendant infected her with a 
 venereal disease." It was held by the Court of Appeal that this 
 allegation could not be struck out of the claim, since both the 
 facts alleged could be given in evidence, as aggravating the 
 injury done to the plaintiff by the breach of contract. 
 
 Only two cases are to be found in which an attempt has A. tion by or 
 been made to maintain an action for breach of promise of mar- ',gj.^,^i',.^i i-epre- 
 riage by or against the representatives of a deceased person, sentatives. 
 and both attempts were unsuccessful. In Chamhcrlaia v, 
 Williamson (x), the action was brought by the administrator of 
 the lady, no special damage being laid. Bayley, J., though 
 doubting whether the suit was maintainable, allowed it to go to 
 
 p. 506. General evidence may be given of the defendant's property, but not 
 proof of particular items : Kerfoot v. Marsdtn, 2 F. & F. 160, f/cr Wilde, 13. 
 
 {q) Harrlfson v. Caye, Garth. 467. 
 
 (r) Wood V. Hurd', 2 Bing. N. C. 166. 
 
 (s) Berry v. Da Costa, L. R. 1 C. P. 331 ; 35 L. J. C. P. 191. 
 
 (0 L. R. 1 C. P., at p. 333. See Smith v. Woodfine, 1 C. B. JV. S. 660. 
 
 {n) MUliiv/ton v. Lorin:;, 6 Q. B. D. 190 ; 50 L. J. Q. B. 214 ; and see 
 per Lord Esher, M.H., Finkoj v. Chirney, 20 Q. B. D. at p. 501. 
 
 U) 2 M. k S. 408. 
 
 I 1 2
 
 484 BREACH OF PROMISE OF MARRIAGE. 
 
 the jury on the ground that whatever compensation in damages 
 she would have been entitled to, by so much she would have 
 died the richer. Judgment was arrested. Lord EUeuborough 
 said " the general rule of law is, aciio personalis moritur" cum 
 persond ; under which rule are included all actions for injuries 
 merely personal. Executors and administrators are the repre- 
 sentatives of the temporal property, that is the debts and goods 
 of the deceased, but not of their wrongs, except where those 
 wrongs operate to the temporal injury of their estate. But in 
 that case the special damage ought to be stated on the record, 
 otherwise the Court cannot intend it." This decision was 
 relied upon and followed in the converse case of Finlay v. 
 Chirney (y), where the action was brought against the executor 
 of the promisor. The plaintiff was his housekeeper, and had 
 been seduced by him under promise of marriage, and had given 
 birth to a child before the death of the testator. No special 
 damage was originally alleged, but in a subsequent stage of the 
 case the Court allowed an amendment to be made under which 
 special damage was pleaded under the following heads : 
 
 (1) cost of clotliing bought in anticipation of marriage ; 
 
 (2) maintenance of plaintiff from date of promise till death; 
 
 (3) costs arising in respect of child ; (4) loss of parish allow- 
 ances withdrawn owing to plaintiff's misconduct ; (5) loss from 
 same cause of anticipated legacy from her mother. It was held 
 that such an action will not lie without special damage, and that 
 if special damage be proved, it will not lie for anything that is not 
 special damage. " "With the death of the promisor all claims to 
 damages of an exemplary or sentimental kind ought to cease, and 
 such damages ought only to be left as represent compensation for 
 a temporal and measureable loss, flowing directly from the breach 
 or within the contemplation of both parties at the date of the 
 promise ; and in an action against executors such a temporal 
 loss, if it is alleged, must be tested according to the ordinary 
 rules as to remoteness as applied to the special facts of the case." 
 Applying this test the items (3), (-i), (5), were clearly inadmis- 
 sible as bein^- too remote. Also (2) on the ground that breach 
 of a promise to marry could never impose upon the promisor 
 an obligation to maintain the promisee for her life. As to (1) 
 
 iy) 20 Q. B. D. 494, see pp. 500, 507 ; 57 L. J. Q. B. 247.
 
 BREACH OF PROMISE OF MARRIAGE. 485 
 
 Lord Esher, M. E., seems to have thought that it could never 
 be ground for special damage, though it would go in aggrava- 
 tion of damages in an action against the promisor himself. 
 Lords Justices Bovven and Fry, while not deciding that such 
 expenditure must necessarily be too remote to be recovered 
 against executors in an action for breach of promise of marriage, 
 held that it was not shown that such purchase was made under 
 circumstances, which would bring the expenditure within the 
 head of damages flowing directly from the alleged breach of 
 contract, or within the contemplation of the parties at the 
 time. 
 
 Any evidence will be admissible in reduction of damages. Evidence in 
 which palliates, though it does not excuse, the breach of "a^fggs*^'' °^ 
 promise ; or which proves that the plaintifi" had no great loss 
 in the matter ; or that the match was in any way unsuitable, 
 and unlikely to have produced happiness. And here it is 
 necessary to distinguish between facts which go to bar the 
 action entirely, and those which merely serve in mitigation of 
 damages. 
 
 It is a complete defence to the action, that the defendant "When the 
 
 was induced to enter into or continue the connection by false f°*i<^" ^^ 
 
 barred, 
 representations, as to the circumstances of the family, or the 
 
 previous life of the plaintiff, or even by a wilful suppression of 
 
 the real state of affairs upon these points (z) ; or that at the 
 
 time of making the promise he was ignorant of her previous 
 
 immoral life (a), even though she had only been guilty of a 
 
 single act of unchastity, and at a distance of many years, and 
 
 had since lived a perfectly correct life (b). So, where the 
 
 plaintiff" is a man, it will be a sufficient answer to show, that 
 
 subsequently to her promise he had conducted himself in a 
 
 brutal manner, and threatened to use her ill, for this gives her 
 
 a right to say that she will not commit her happiness to his 
 
 keeping (c) ; or that he is a person of proved bad character {d). 
 
 (z) W/tarton v. Lewis, 1 C. & P. 529 : Foote v. Haime, ibid., 546. In 
 the absence of fraud it is no defence that the plaintiff was at the time of the 
 promise engaged to another man, and concealed it from the defendant: 
 £eeckey v. ilrown, E. B. & E. 796 ; 29 L. J. Q. B. 105. 
 
 (a) Irving v. Green>cood, 1 C. & P. 350. 
 
 (6) Bench v. Merrick, 1 C. & K. 463, 
 
 (c) Leeds v. Cook, 4 Esp. 256. 
 
 (d) Baddeley v. Mortlock, Holt, N. P. 151.
 
 486 
 
 SEDUCTION. 
 
 Evidence of 
 character, 
 conduct, &c. 
 
 Evil rciiute. 
 
 Damages in 
 seduction not 
 confined to 
 compensation 
 for loss of 
 
 So the existence of some bodily infirmity, to which the plaintiff 
 is subject, which was not known at the time of the contract, was 
 held to be a complete bar (e). But it has since been held in the 
 Exchequer Chamber that it is no defence that the defendant, 
 after the promise, became subject to a disease which rendered 
 him incapable of marrying without danger of his life (/). And 
 upon the authority of that case it Avas held no defence that the 
 plaintiff had been a lunatic, which was not known to the defen- 
 dant at the time of the contract {g). 
 
 On the other hand, unchaste conduct, known when the 
 promise was made, only operates in reduction of damages (A). 
 So mere grossness of manners, and want of feeling are not 
 grounds for breaking off the contract, nor even palpable want 
 of affection. But all such circumstances are most important in 
 testing the amount of injury the plaintiff has sustained. The 
 mutual suitability of the parties, and the real affection felt by 
 the plaintiff", may fairly be considered by the jury, when a man 
 complains of having lost the society of one whom he appears 
 never to have valued, and the pleasures of whose society he was 
 little calculated to taste («'). 
 
 The bad character of a man, when it merely rests upon report, 
 without specific proof of facts, has been held to be merely 
 evidence in mitigation of damages, and not a complete bar (/'). 
 In one instance, however. Lord Kenyon allowed general evidence 
 of the immodest character of a woman to go iu bar of the 
 action. He said, that in sucli a case character was the only 
 point in issue, and that was public opinion, founded on the 
 character of the party. He therefore considered that what that 
 public thought w'as evidence (/). 
 
 9. The action for seduction, properly so called, is rather an 
 anomalous one. In form it purports to be merely an action 
 for the consequential damage arising from the loss of service, 
 resulting from the act complained of. Hence the action will 
 
 (c) Atrhinson v. Balxr, 2 Pealie, 103. 
 
 (/) Bnll V. Wriijht, E. B. & E. 746 ; 29 L. J. Q. B. 43 ; decided by four 
 judges to three, the Court below having been equally divided. 
 ig) Baker v. Cartwright, 10 C. B. N. S. 124. 
 (h) Bench v. Merrick, 1 C. & K. 463. 
 (?') Per Lord Ellen borougli, Leeds v. Cook, 4 Esp. 257. 
 (k) JBaclcleley Y. Morflock, uhisuji. 
 {I) Foulkes V. SeLlway, 3 Esp. 236.
 
 SEDUGTIOX. 487 
 
 fail unless some loss of service can be shown (m). And where 
 the loss of service arose from the illness of the daughter, which 
 was not caused by the seduction, but by grief at being subse- 
 quently abandoned, the Court doubted whether the action 
 could be maintained (n). The logical result would be, tliat 
 damages could be given on no other ground. This is not the 
 €ase, however. It has been laid down, that actions of this 
 sort are brought for example's sake, and although the plaintilf s 
 loss may not really amount to the value of twenty shillings, 
 yet the jury do right in giving liberal damages (o). And so 
 Lord Eldon said, " In point of form the action only purports 
 to give a recompense for loss of service, but we cannot shut 
 our eyes to the fact, that this is an action brought by the 
 parent for an injury to her child. In such a case I am of 
 opinion that the jury may take into consideration all that she 
 can feel from the nature of the loss. They may look on her as 
 losing the comfort as well as the service of her daughter, in 
 whose virtue she can feel no consolation ; and as the parent 
 of other children, whose morals may be corrupted by her ex- 
 ample(;?)." And not only the woimded feelings of the plaintiff, 
 but also the dishonour resulting from the act, may form part of 
 the estimate of damages (q). 
 
 Damages ought to be governed by a due regard to the situa- Rank an 
 tion in life of all the parties (r), because the high position of e''^™^^*' 
 the parties may be an aggravation of the wrong. But the ^^^^^ j^^^ 
 defendant's means are not an element in the case. Accordingly wealth, 
 when the plaintiff proposed to address interrogatories to the 
 defendant as to his wealth, the Court refused to allow them to 
 be put. Blackburn, J., said, '• The jury, no doubt, would give 
 higher damages against; a rich man, and the defendant's means 
 do in general in some way come out at the trial. That we 
 cannot help. The true measure of damages is the amount of 
 
 (m) In the case of a minor, a right to the service is sufficient ; and when 
 she ceases to be under the control of a real master, and intends to return to 
 her father's house, she is constructively in his service : Terry v. Uutchinson, 
 L. R. 3 Q. B. 599 ; 37 L. J. Q. B. 257. 
 
 (n) Boyle v. Brandon, 13 M. & W. 733. 
 
 (o) Per Wilmot, C. J., TuUidge v. Wade, 3 Wils. 18. 
 
 (p) Bedford v. M'Koid, 3 Esp. 119. 
 
 {q) Southernwood v. Ramsden, Selw. K p. 1127, 12th ed. : Andrews v. 
 Aslcey, 8 C. & P. 7. See Berry v. Da Costa, ante, p. 483. 
 
 (r) Andreics v. AsLry, uhi siq>.
 
 488 
 
 SEDUCTION. 
 
 Evidence of 
 promise of 
 marriage. 
 
 Evidence of 
 
 general 
 
 chastity. 
 
 compcnstifcion to be paid to the plaintiff for the injury he has 
 sustained by the seduction of his daughter ; and in an action 
 of tort it should be immaterial, as Lord Mansfield said, whether 
 the damage came out of a deep pocket or not " (s). 
 
 The circumstances of premeditation or fraud, by which the 
 act was accomplished, will of course weigh heavily with the 
 jury in assessing damages. It has been said, however, that 
 evidence cannot be received that defendant effected his object 
 by means of a promise of marriage. Lord Ellenborough said, 
 " You may ask her whether he paid his addresses in an 
 honourable way ; to admit evidence of a direct promise of 
 marriage would be to allow the mother to recover damages 
 for a breach of that promise, upon the testimony of the 
 daughter " (/). But the evidence has been received in several 
 cases, on the ground that otherwise it might appear to the jury 
 that the daughter was a wanton (ii). In one case the distinc- 
 tion was said to be, that such evidence could not be relied 
 on, as a prominent part of the case, for the purpose of obtaining 
 specific damages, but that it might be used collaterally to the 
 main object of the action, with a view to the vindication of the 
 young woman's character (x). 
 
 Xo evidence of general good character for chastity is admis- 
 sible in aggravation of damages, until an attempt has been 
 made to prove the contrary (//). It has even been laid down, 
 that imputations cast upon her good fame in cross-examination 
 are not sufficient ground to admit evidence in rebuttal (s). 
 The contrary rule has been laid down in some later cases. In 
 one, the cross-examination of the girl went to show that she 
 had conducted herself immodestly towards the defendant before 
 the seduction, and kept improper company. In the other, she 
 was questioned as to her having had criminal intercourse with 
 other men. The plaintiff was allowed to prove her general 
 good character and modest deportment, and the general respect- 
 ability of the family (a). 
 
 (s) IlodsoU V. Taylor, L. R. 9 Q. B. 79 ; 43 L. J. Q. B. 14. 
 (0 Bodd V. Norris, 3 Camp. 519 : TuiJkhje v. Wade, 3 Wils. 18. 
 (m) Watson v. Bai/less : Miu-gatroijd v. Murgatroyd, 3 Stark. Ev. 990. 
 ix) Elliott V. Nkklin, 5 Pri. '641. 
 (y) Bamfield v. Massey, 1 Camp. 460. 
 (z) Dodd V. Norris, 3 Camp. 519. 
 
 (n) Bate v. Bill, 1 C. & P. ICO : Murgatroyd v. Murgatroyd, 2 Stark. 
 Ev. 307 : Broun v. Goodwin, It. Cir. Rep. 61.
 
 SEDUCTION. 489 
 
 Evidence may be given, in reduction of damages, of the Antigation 
 general indelicacy and levity of character of the female immodefr' 
 seduced (b) ; and specific instances of intercourse bet^Yeen her conduct. 
 and other men may be deposed to (c) ; but the daughter herself 
 cannot be questioned as to such acts {d ). Any declarations 
 made by herself, as for instance, that a third person was the 
 father of the child ascribed to the defendant, may however be 
 proved, provided she has been_given an opportunity of ex- 
 plaining or denying them (e). 
 
 Gross nesliffence on the part of the plaintiff may also be Negligence of 
 
 . , , • T 1 111 the plaintiff. 
 
 proved, \Yith the same view. In one case, where he had 
 suffered the defendant to continue his visits, as a suitor to his 
 daughter, though he knew him to be a married man, on an 
 alleged probability of his obtaining a divorce, and after he 
 had been cautioned against him, Lord Kenyon directed a 
 nonsuit (/). 
 
 Damages for the mere seducing away of an actual servant Seducing from 
 
 • 1 scrvicG 
 
 from the employment of the master, of course rest upon quite 
 a different basis. They would be regulated by the actual money 
 loss resulting from the act, unless where strong evidence of 
 malice was shown. In estimating the injury sustained, the 
 jury are not limited to the time during which the servant was 
 bound to continue with his master. Where the workmen of a 
 piano-maker were enticed away from him ; it appeared that 
 they were engaged for no fixed time, but worked by the piece. 
 His income from his trade was 800/. per annum, and a verdict 
 for 1,600/. was held not to be excessive (g). 
 
 Xo action will lie against the seducer of a servant, when the 
 master has recovered against the latter a stipulated penalty, 
 agreed on in case of his leaving the service (h). 
 
 (b) Bamfield v. Massey : Dodd v. Norris, uU svp. 
 
 (c) Verrij v. Watkins, 7 G. & P. 308. 
 
 (d) Dodd V. Norris, uhi xvp. But, from the analogy of the decisions m 
 affiliation cases, it would seem that such questions may be put, and even evi- 
 dence be given in contradiction, if it goes to show that some one else may 
 have been the father of the child : Garhutt v. Simpson, 32 L. J. .M. C. 186 ; 
 and see R. v. Gibbons, 31 L. J. M. C. 98. 
 
 (f) Carpenter Y. Wall, 11 A. & E. 803. 
 
 { f ) Reddie v. Scoolt, 1 Peake, 240. . . 
 
 (V) Gunter v. Astor, 4 Moo. 12. The action lies for enticing away the 
 plaintiffs daughter, though there mav have been no binding contract of ser- 
 vice : Eoans v. Walton, L. R. 2 G P. 615 ; 36 L. J. G. P. 30/. 
 
 {h) Bird V. Randall, 3 Burr. 1346.
 
 490 
 
 ADULTERY. 
 
 Adultery. 
 
 Grounds of 
 damage in 
 crim. con. 
 
 10. By the act which estahh'shed the present Divorce Court, 
 20 & 21 Vict. c. 85, actions for criminal conversation were 
 aboUshed(/). It is, however, by the same act provided that 
 a luisband may in a suit for dissolution of marriage, or for 
 judicial separation, or in a petition limited to such object 
 only, claim damages from any person on the ground of adultery 
 with the petitioner's wife ; and the claim is to be tried on the 
 same principles, and subject to the same rules, as actions for 
 criminal conversation were previously tried and decided in 
 Couits of Common Law. After the verdict the Court has 
 power to direct in what manner the damages are to be applied, 
 and to direct the whole or a part to be settled for the benefit of 
 the children of the marriage, or for the maintenance of the 
 wife (Jc). 
 
 The general principles upon which damages were given in 
 crim. con. were laid down with great clearness by an eminent 
 judge. He said, " The action lies in this case for the injury 
 done to the husband in alienating his wife's affections, destroying 
 the comfort had from her company, and raising children for 
 him to support and provide for ; and as the injury is great, so 
 the damages given are commonly very considerable. But they 
 are properly increased or diminished by the particular circum- 
 stances of each case. The rank and quality of the plaintiff ; 
 the condition of the defendant ; his being a friend, relation, or 
 dependant of the plaintiff ; or being a man of substance ; proof 
 of the plaintiff and his wife having lived comfortably together 
 before her acquaintance with the defendant, and her having 
 always borne a good character till then ; and proof of a settle- 
 ment or provision for the children of the marriage, are all 
 proper circumstances of aggravation " (/). It will only be 
 necessary to add a few words in elucidation of this summary. 
 As almost the whole foundation of this action consisted in 
 
 {i) S. 59. 
 
 [k) S. 33. See Comyn v. Comyn and Humphreys, 32 L. J. P. M. & A. 
 210. The insertion of a claim for damages does not affect the discretion as to 
 costs given to tlie Court by s. 51 : Wed v. West and Parker, L. R. 2 P. & D. 
 196 ; 40 L. J. P. M. 11. 
 
 (/) Bull, N. P. 27. In Bell v. Bell and Marquis of Anglesey, 29 L. J. 
 P. M. & A. 159, the jury were allowed to take the marriage settlement into 
 consideration in assessing the damages, there being no children of the marriage, 
 and the Court therefore having no power to deal with the settlements under 
 22 & 23 Vict. c. 61, s. 5.
 
 ADULTERY. 
 
 491 
 
 the loss of the wife's society and affection, it was most im- 
 portant with a view to damages, to ascertain what the extent of 
 this loss was, and how far it had been caused by the acts of the 
 defendant. 
 
 Where the plaintiff had entirely given np the society of his Separation Ik- 
 wife, he could not sue in respect of acts of adultery subse- a^^'^^^-ifg"^ ''"" 
 quent to the separation {ni) ; but it was diiferent where, though 
 separated, he had still retained a right to the assistance of 
 his wife, in the management and care of his family (yO- It 
 was held too, that even a complete separation, if without deed, 
 would be no bar to an action, since there was nothing to pre- 
 vent the plaintiff instituting a suit to regain the society of his 
 wife (o). Of course the same rale applied more strongly where 
 the separation was a mere matter of mutual convenience ; as 
 where the husband and wife were living in different fami- 
 lies (p). Such facts, however, would go strongly to reduce the 
 damages (q). 
 
 There is a curious case in which the husband had never 
 known of his wife's infidelity till the eve of her death, when 
 she herself disclosed it to him, and he then continued to treat 
 her kindly till she died. It was held that the action was 
 maintainable. Coleridge, J., said, in charging the jury, " The 
 only grounds on which you ought to give damages to the 
 plaintiff are, the shock which has been given to his feelings, 
 and the loss of the society of his wife down to the time of her 
 death " (r). 
 
 Another mode of testing the loss sustained by the husband, Evklence of 
 was to ascertain the amount of enjoyment he used to derive „p';,^''i'Ji',u 
 from the society of his wife, and the terms upon which they they lived, 
 lived with each ether. AVith this view, not only their conduct 
 when they were together, but their letters were admissible, even 
 though written to a third party, and containing other matter 
 which would not be evidence (s). But it was necessary to show 
 
 (m) M'cedon v. Timhrcll, 5 T. R. 360. 
 
 {n) Chambers v. Cauljkkl, 6 East, 244. 
 
 (o) Graham r. Wiylcy, per Abbott, C. J., 2 Hop. Husb. ct W. 323. 
 
 (p) Edwards v. Crock, 4 p]sp. 'MK 
 
 Iq) See Calcraft v. Lord Harborour/h, 4 C. & P. 499. 
 
 (r) Wilton Y. Webster, 7 C. kV. 198. 
 
 {s) Willis V. Bernard, 8 Biug. 376 : A'eyse v. Keysc, 11 P. D. 100 ; 5o L. 
 J. P. D. A. 54. As to letters between husband and wife, see Stone v. titone 
 and Appleton, 34 L. J. P. M. & A. 33.
 
 492 
 
 ADULTERY. 
 
 Infidelity of 
 husband. 
 
 Character 
 of wife. 
 
 Husband him- 
 self to blame. 
 
 that the letters were written at the time they bore date, and 
 before suspicion was entertained of the wife's misconduct (/). 
 Evidence might also be received of the wife's complaints as to 
 her husband's ill treatment of her, though not made in his 
 presence, as showing the manner in which the parties lived 
 together (u). 
 
 Lord Kenyon, on two occasions, held that open infidelity 
 on the part of the husband went in bar of the action (x). 
 Lord Alvanley, however, decided that it only went in mitiga- 
 tion of damages (//). A discretionary power is now given to the 
 Court to pronounce a decree for dissolution of marriage where 
 the petitioner has himself been guilty of misconduct (2). 
 
 The plainfcift"8 loss depended also, of course, on the previous 
 character of his wife. Accordingly evidence that the wife was 
 living as a prostitute, or that she had committed previous acts 
 of misconduct, before the adultery charged, and without the 
 husband's privity, went in mitigation of damage (a). But acts 
 of this sort, committed subsequently, could not be used for this 
 purpose, for they might be the direct result of the degradation 
 brought upon her by the defendant (b). 
 
 Where the husband was himself, knowingly, the cause of his 
 own disgrace, no action at all lay (r). But evidence of mere 
 carelessness, and neglect of the husband, in not putting a stop 
 to culpable familiarities, went merely in reduction of damages, 
 unless amounting to connivance (d). The plaintiff was entitled 
 to recover unless he had in some degree been a party to his own 
 
 {t) Edwards v. Crock, 4 Esp. 39 : Trelawneij v. Colonan, 1 B. & A. 90 : 
 UouHston V. Smyth, 2 G. & P. 24. 
 
 (w) Winter v. Wroot, 1 M. & Rob. 404. 
 
 {x) Start V. Marquis of Blandford : Windham v. Wi/comhe, 4 Esp. 17. 
 
 (?/) Bromley v. Wallace, 4 Esp. 237. A witness cannot in any proceeding 
 instituted in consequence of adultery, be cross-examined as to any act of 
 adultery, unless lie or she has already given evidence in the same proceeding 
 in disproof of it (;32 & 33 Vict. c. 68, s. 3) ; therefore a husband petitioning 
 for dissolution of marriage cannot, with a view to miti,i,'ation of damages, be 
 asked questions tending to show that he had been guilty of adultery in the 
 lifetime of his first wife : Bahba'jc v. Bahba^je and Manninq, L. R. 2 P. & D. 
 222. 
 
 {z) 20 & 21 Vict. c. 85, s. 31. As to the exercise of the discretion, see 
 Latour v. Latmir and Weston, 31 L. J. P. M. & A. 66 ; 2 Sw. & Tr. 524 : 
 Goode V. Goode and Hamson, 30 L. J. P. M. & A. 105 ; 2 Sw. & Tr. 253, 
 
 (a) Smith V. AUison, Bull. N. P. 27. 
 
 <h) Elsam V. Fuurctt, 2 Esp 562 : Winter v. Ilemi, 4 C. & P. 494. 
 
 (c) Smith V. AUison, ubi sup. 
 
 (d) Duberlcy v. Gunning, 4 T. R. 655.
 
 ADULTEHY. 493 
 
 dishonour, either by giving a general hcence to his wife to 
 conduct herself as she pleased with men generally, or by assent- 
 ing to the particular act of adultery with the defendant, or by 
 having totally and permanently given up all the advantage to 
 be derived from her society (e). So under 20 & 21 Vict. c. 85, 
 s. 30, if the petitioner has been an accessory to or has connived 
 at the adultery, the petition must be dismissed. Connivance 
 has been defined to be something more than mere negligence, 
 inattention, or indifference. There must be an intention on his 
 part that his wife should commit adultery, or at any rate a 
 willing consent (/). 
 
 Even where there was no pretence of connivance on the part Defendant 
 of the plaintiff, damages were reduced by anything which ™iicited"^ 
 showed that the defendant was led into the crime by circum- 
 stances not originating with himself. Therefore, where the 
 w^oman was an actress, married privately, living apart from her 
 husband, in the pursuit of her profession, Tindal, C. J., said, 
 *' You may consider, in estimating the damages, how far the 
 plaintiff interfered to protect his wife from the temptations to 
 wdiich, by her profession, she w^as exposed. You may also con- 
 sider whether the defendant knew that she was a married 
 woman, or might conclude that she was still single, and attend- 
 ing as an actress at the theatre " (//). And so the fact that 
 the defendant was first solicited by the wife had the same 
 effect (A). Where the husband and wife had been living an 
 unhappy life, and she had left him of her own accord, after 
 which she formed a connection with the co-respondent ; Sir 
 James Hanuen left it to the jury to consider, in mitigation of 
 damages, whether the husband had made any effectual efforts 
 to discover where she was, so as to prevent that misconduct 
 which would be the natural result of her being left alone with- 
 out any means of support (/). 
 
 We have seen that the defendant's condition, and his being Evidence of 
 
 defendant's 
 ■ — wealth. 
 
 (c) JF inter Y. Henn, uhi sup., per k\A&v%on, B. 
 
 (/) Allen V. Allen, 2 Sw. & Tr. I(i8, n. (1): Marris v. Harris, 2 Sw. 
 & Tr. 530 ; 31 L. J. P. M. & A. 69 : Ellyatt v. Ellyatt, Taylor, and Ha'se, 
 3 Sw. k Tr. 504 ; 33 L. J. P. M. k A. 137 ; Adams v. Adams and Colter, 
 L. R. 1 P. & D. 333. 
 
 (7) C'dcraft v. Lord ffarboroujh, 4 C. & P. 499. 
 
 (h) Elsnm v. Faucett. 2 Esp. 562. 
 
 (0 Keyse v. Keyse, 11 P. D. 100 ; 55 L. J. P. -M. & A. 54.
 
 494 
 
 ADULTERY. 
 
 Former re- 
 covery wliere 
 there were 
 several jjara- 
 inours. 
 
 Application of 
 ilamages liy 
 Court. 
 
 a man of substance, were relied on by BuUer, J., as matters 
 which proper]}' enhanced the damages (k). In oue case, how- 
 ever, Alderson, B., refused to admit evidence of the amount of 
 the defendant's property. He said that in actions of this kind, 
 a plaintifl"is entitled to as much damage as a jury shall think 
 is a compensation for the injury he has sustained, and the 
 amount of the defendant's property is not a question in the 
 cause (/). And this rule has been followed in the Divorce 
 Court. Sir C. Cresswell said, " The jury had to say what was 
 the value to the husband of that which he had lost through 
 the instrumentality of the co-respondent. It was not a ques- 
 tion what the co-respondent Avas worth, because if he could not 
 pay in purse he must pay in person. But if a man made use 
 of his wealth in order to corrupt a woman, the jury might con- 
 clude she was not easily corrupted, and was therefore of more 
 value to her husband " (?«). 
 
 A former recovery against one defendant for adultery, was 
 no bar to an action against another defendant, tor a smiilar 
 injury during the same time («), for each might have inflicted 
 a very different degree of wrong upon the plaintiff (o). 
 
 In directing in what manner the damages should be applied, 
 the Court for Divorce and Matrimonial Causes has most usually 
 allowed the petitioner his costs which have not been taxed 
 against the co-respondent. With the residue, provision has 
 been made for the maintenance of the wife (diwi casta vixerit), 
 and children, by purchasing annuities for them or by investing 
 the amount, the wife taking the interest, and the principal sum 
 passing to the children at her death {p). It has been ruled in 
 the same Court that if the co-respondent does not appear, the 
 
 [Jc) Ante, p. 490. 
 
 il) James V. Blddinrjton, 6 C. & P. 590. 
 
 (»n.) Forstcrv. Forster, 3-3 L. J. P. M. k A. I'jO, n. : Cowing v. Cowing, 
 ih., 149 : Keyse v. Keyse, 11 P. D. 100. 
 
 (n) Gregson, v. M'Taggart, 1 Camp. 415. 
 
 (o) Gregson y. Thealer, 1 Camp. 415, ii. 
 
 (/>) See Lathcnnv. Latham and Gethi II, 'M L. J. P. M. & A. 43 : Clarice v. 
 Clarke, 31 L. J. P. M. & A. 61 : Narracvtt v. Narracoit and Hesleth, 33 
 L. J. P. M. & A. 132 : hUlmgay v. BllUnga]) and Thomas, 35 L. J. P. M. 
 84 : CalhvcU v. Callwell and Kennedy, 3 Sw. & Tr. 259 : Forster v. Forster 
 a7ul Birridge, 3 S. & T. 158 ; S. C. 4 S. & T. 131 ; 34 L. J. P. M. & A. 88. 
 In 2'aylor v. Taylor and Walters, 39 L. J. P. & M. 23, nothing was given to 
 the wife. And where there had been no i.ssue of the marriage, and tlie respon- 
 dent was living with the co-respondent, the Court directed the damages to be 
 paid to the petitioner ; Fvaiis v. Evans and Bird, L. R. 1 P. & D. 35.
 
 ADULTERY. 
 
 49i 
 
 jury are bound to take for granted that he committed the 
 adultery. Therefore, even when they found that the respondent 
 had not committed adultery with the co-respondent they were 
 directed to assess the damages at a nominal sum against the 
 latter ((/), If the co-respondent appears but does not file an 
 answer, he cannot cross-examine witnesses or address the jury 
 in mitigation of damages, but after decree he may re-call and 
 cross-examine witnesses and address the Court upon the ques- 
 tion of costs, as for example by showing that the co-respondent 
 did not know the respondent to be a married woman (r). 
 
 (q) Stone V. Stone and Appleton, 34 L. J. P. M. & A. 40, n. And 
 evidence is admitsible to aggravate the damages as against the co-respondent ; 
 Jb. ; 3 Sw. & Tr. 608. 
 
 (r) Lyne v. Lyne and Blachieij, 37 L. J. P. il. & A. 9.
 
 CHAPTER XVI. 
 
 BREACH OF STATUTORY OBLIGATION. 
 
 No action for 
 public wroDg. 
 
 Special damage 
 a ground of 
 action. 
 
 Whex a statute directs (a) an individual or corporation to 
 do or abstain from a particular act, an obligation to conform to 
 the directions of the statute is imposed, which in some mode 
 or other may Ijc enforced. Where an individual is injured by 
 breach of a statute, he has in general a remedy by action. 
 But whether he has or has not a remedy, and what the nature 
 of his remedy is, will depend upon the object and wording of 
 the statute. 
 
 1. Disobedience to a statute which, for public and general 
 objects, orders or forbids any particular act, is, in the absence 
 of any countervailing provision, indictable as a misdemeanour 
 at common law (h). The mere fact that such disobedience 
 injures a private individual does not give him a right of 
 action. " AYhere a statute prohibits the doing of a particular 
 act affecting the public, no person has a right of action 
 against another merely because he has done the prohibited 
 act. It is incumbent on the party complaining to allege and 
 prove that the doing of the act prohibited has caused him 
 some special damage, some peculiar injury beyond that which 
 he may be supposed to sustain in common with the rest of the 
 Queen's suljjects, by an infringement of the law. But where 
 the act prohibited is obviously prohibited for the protection 
 of a particular party, there it is not necessary to allege special 
 damage " (c). For instance, the owner of a ferry may sue 
 
 (a) See Julius v. Bishop of Oxford, 5 App. Cas. 214, as to the circum- 
 stances under which enabling words will be construed as compulsory. 
 
 (b) R. V. JFriijIit, 1 Burr. 543. No indictment lies for breach of a statute 
 which merely regulates private rights ; It. v. Richards, 8 T. R. 634. 
 
 ((•) /-"er Pollock, C. B. , Chamberlain v. Chester and Birkenhead Eij. Co., 
 1 Exch. 87 J, at p. 676 ; 18 L. J. Ex. 494, at p. 496.
 
 BREACH OF STATUTE. 497 
 
 a railway company, which is forbidden by statute to make a 
 branch Hne to other ferries on the same river, until a similar 
 branch had been made to his ferry {d). So when a statute 
 imposes a duty to perform certain ministerial obligations for 
 the benefit of a particular class of persons, any one of that 
 class who is injured by the breach of such duties may sue for 
 damages {e). And on the same principle, where a harbour 
 was vested in the defendants, and they were authorised to levy 
 certain dues upon ships entering and leaving the harbour, 
 which they were to apply to buoying and lighting the harbour 
 and channel, and they omitted to buoy a wreck which was 
 lying in the channel, in consequence of which the plaintiff's 
 vessel was wrecked ; it was held that he was entitled to recover 
 as damages the amount of the loss so incurred (/). 
 
 On the other hand, the mere existence of special damage if within the 
 arising to an individual from breach of statute, does not entitle ^^tute! 
 him to sue, unless he is one of the class of persons whom the 
 statute intended to protect, and unless the harm arising from 
 the breach was of the sort which the statute intended to pre- 
 vent. For instance, an Act which prohibits sending infected 
 animals into a public place, is aimed at protecting other 
 animals in such places, and their owners. No action can be 
 brought upon it by a person who, finding the animal in such a 
 place, buys it, and then suffers loss in consequence of the 
 diseased condition of his purchase {g). So a statutory order 
 made under the Contagious Diseases (Animals) Act, directed 
 that sheep brought by sea should be placed in substantial pens, 
 the object of the order being to prevent disease. The plaintiff's 
 sheep were entrusted to the defendant, a shipowner, to carry, 
 and were not placed in pens, and were washed over by the 
 sea, a result which would not have taken place if they had been 
 penned up. It was held that no action could be maintained 
 upon the statute, as it was not intended to guard the animals 
 against the perils of the sea {h). 
 
 IT. AYhere an action will lie in respect of a matter provided Form of action 
 
 on statute, 
 
 {d) lb., ithi suj^. ; Bridgland v. SJiapter, 5 M. & W. 375. 
 
 (e) Pickcrmrjy. James, L. R. 8 C. P. 489 ; 42 L. J. C. P. 217. 
 
 (/) Uormoat v. Funiess Ry. Co., 11 Q. B. D. 496; 52 L. J. Q. B. 331. 
 
 {y) Ward v. Hohbs, 4 App. Cas. 13 ; 48 L. J. Q. B. 281, ante, p. 21. 
 
 (A) Gorris v. Scott, L. 11. 9 Ex. 125 ; 43 L. J. Ex. 92. 
 
 M.D. K K
 
 498 BREACH OF STATUTE. 
 
 for by statute, numerous distinctions arise as to the form in 
 which the action may be brought, and the person who is entitled 
 to bring it. The general rules of law upon the first branch 
 of the subject have been laid down as follows by "Willes, J., in 
 Wolverhampton New Waienvorlcs Co.y. Haickesford{i) :" There 
 are three classes of cases in which a liability may be established 
 founded upon a statute. One is, where there was a liability 
 existing at common law, and that liability is affirmed by a 
 statute which gives a special and peculiar form of remedy dif- 
 ferent from the remedy which existed at common law. There, 
 unless the statute contains words which, expressly or by necessary 
 implication, exclude the common law remedy, the party suing 
 has his election to pursue either that or the statutory remedy. 
 The second class of cases is, where the statute gives the right 
 to sue merely, but provides no particular form of remedy. 
 There the party can only proceed by action at common law. 
 But there is a third class, viz., where a liability not existing at 
 common law is created by a statute, which at [the same time 
 gives a special and particular remedy for enforcing it. There 
 the remedy provided by the statute must be followed, and it is 
 not competent to the party to pursue the course applicable to 
 cases of the second class. The form given by the statute must 
 be adopted and adhered to." 
 Affirmance of 1, The first class of cases above referred to may be illustrated 
 nvht!""^ ^^' ^y ^^^® following decisions. The plaintiffs sued at law on 
 behalf of a benefit society to recover from the defendant, an 
 officer of the society, certain monies which had been placed, 
 in his hands. A statute provided that in such a case the 
 defaulter might be proceeded against by petition to the Court 
 of Chancery or the Exchequer Court. It was held that this 
 remedy was cumulative, and did not deprive the plaintiffs of 
 their right to sue at law {j). 
 
 A contrary decision was given under the following circum- 
 stances. Sect. 243 of the Merchant Shipping Act (17 & 18 
 Yict. c. 104), provides that a sailor who refuses to join his 
 ship may be brought before justices, who may inflict a certain 
 amount of imprisonment, and may also direct that he shall 
 
 (z) 6 C. B. N. s. at p. 356 ; 28 L. J. C. P. at p. 246. 
 ( j) Sharp V. Warren, 6 Price, 131.
 
 BREACH OF STATUTE. 
 
 499 
 
 forfeit a certain portion of his wages. It was held by the Substitution of 
 
 Court, though not without doubt, that this section was a bar ^t'^^t^^o^y /o'^ 
 . 1 ,. T common law 
 
 to a suit at common law for damages for breach of contract, remedy. 
 
 or to a proceeding to enforce damages hmited to £10, under 
 the Employers and Workmen Act, 1875 (38 & 31) Vict. c. 90), 
 s. 4. The Court said that if s. 243 had stopped at inflicting 
 imprisonment, there would have been little, if any, ground for 
 saying that the general remedy was intended to be interfered 
 with, for the imprisonment might well have stood with the 
 right of action, and would have been cumulative merely. 
 But that when the statute went on to limit the damages result- 
 ing from the breach of contract to a definite portion of the 
 wages, which might be much less than the damages at common 
 law, it evinced an intention to confer a new right, inconsistent 
 with and limiting the old one, which was to be exercised in 
 lieu, and not in aid, of the geuei-al remedy (/,;). 
 
 The same rule applies where successive statutes are passed in Successive 
 regard to the same subject-matter. An affirmative statute 
 giving a new right does not of itself, and by necessity, destroy 
 a previously existing right, already created by statute. But it 
 has that effect, if the apparent intention of the statute is that 
 the two rights should not exist together (/). 
 
 2, Where the statute creates a right, but gives no remedy 
 for its breach, the injured party is obviously left to a suit for 
 damages. A certain statute authorised the making of rules 
 to regulate the use of adjoining mines. By s. 29, compliance 
 with the rules might be enforced by injunction of the Court 
 of Exchequer, or otherwise, in such matter as that Court 
 should on application think fit. The defendant broke one 
 of the rules to the injury of the plaintiff", who sued for damages. 
 It was held that the statute provided a mode of enforcing the 
 rules, but contained no remedy for their breach, and that there- 
 fore an action at common law would lie (m). 
 
 statutes. 
 
 Statute giving 
 a riglit -n ithout 
 special remedy. 
 
 [h) Gt. Northern Fishing Co. v. EdgcUll, 11 Q. B. D. 225. The section 
 in question is repealed so far as regards tlie imprisonment by 43 & 44 Vict. 
 c. 16, s. 12, but otherwise stands. 
 
 (I) O'Flahertii v. AI'Dowall, 6 H. L. C. 142, at p. 157. 
 
 (m) Hoss V. Rugge Price, 1 Ex. D. 269 ; 45 L. J. Ex. 777 ; Dormant v. 
 Furness lly. Co., ante, p. 497. See as to action for overcharges under the 
 Railway and Canal Traffic Act, 1854, s. 2., Dcnahij Main Colliery Co. v. 
 Manck. Sheffield <£• Lincoln My. Co., 11 App. Gas. 97 ; 55 L. J. Q. 15. 181. 
 
 K K 2
 
 500 BREACH OF STATUTE. 
 
 Statutory right 3. Where a statute creates a new obligation, by forbidding 
 reinec?"^'^''^^ an act which was previously innocent, or by compelling an act 
 which was previously optional, and directs that this obligation 
 shall be enforced in a particular way, no other remedy can be 
 had. The question here is, upon the construction of the 
 statute, whether the right and the remedy are not inseparably 
 connected ; or rather, whether there is any right except that of 
 enforcing the particular remedy given by the legislature (n). 
 Criminal cases. In criminal cases the rule has been stated to be " that where an 
 ofience is not so at common law, but made an offence by Act of 
 Parliament, yet an indictment will lie where there is a substan- 
 tive prohibitory clause in such ilct of Parliament, although there 
 be afterwards a particular provision, and a particular remedy 
 given ; but it is otherwise where the act is not prohibitory, but 
 only inflicts the penalty and specifies the remedy "(o). Here the 
 right of the crown to proceed by indictment necessarily arises on 
 the creation of the offence, aud the mode of procedure is only 
 restricted where the prohibition and the penalty are contained 
 in the same proviso. But in civil cases the question is whether 
 any right to sue is created in any private individual, and this 
 must be determined by an examination of the whole frame- 
 work and intention of the statute, aud does not depend upon 
 the circumstance that the prohibition and the penalty are or 
 are not contained in the same section. 
 Civil cases. In HarhccU v. The Eijde Commissioners {jf), the defendants 
 
 were directed to repair certain roads, and a subsequent section 
 made them indictable for a misdemeanour if they refused or 
 neglected to repair. It was decided that a private person, who 
 was specially injured by the non-repair, might sue for damages. 
 Here the Court held that the section which rendered the Com- 
 missioners indictable, took away the liability to repair from the 
 
 {n) Accordingly, actions were lield not to lie for school board fees ; School 
 Board for London v. Wrk/ht,, 12 Q. B. D. 578 ; 53 L. J. Q. B. 266. Nor 
 for refusing to give a seaman a certificate of discharge ; Vallance v. Falle, 13 
 Q. B. D. Iii9 ; and 53 L. J. Q. B. 459. 
 
 (o) Per Denison, J., R. v. Wright, 1 Burr. p. 545 ; per Ashurst, J., R. v. 
 Harris, 4 T. K. p. 205 ; Reg. v. 'Hall, [1891] 1 Q. B. 747 ; 60 L. J. M. C. 
 124. The Judicial Committee has laid it down " that -when a statute inflicts 
 a pcnrdty for not doing an act, the penalty implies that there is a legal com- 
 pulsion to do the act in question ; and that this principle is not affected by the 
 fact that a penalty has a particular destination ;" Redpalh v. Allen, L. E. 
 4 P. C. 511 ; 42 L. J. Adm. 8. 
 
 (^) 4 B. & S. 361 : 33 L. J. Q. B. 39.
 
 BREACH OF STATUTE. 501 
 
 parish, and imposed it upon them. On the other hand there 
 are numerous cases where the courts have refused to allow 
 actions for non-repair to be maintained aj^jainst surveyors of 
 highways, or local bodies, who were entrusted with the function 
 of cariying out repairs, for which the parish was and remained 
 liable {q). Here the Court was of opinion that the statute 
 did not mean to impose a liability to be sued, which did not 
 exist as against the parish, whose primary obligation to repair 
 still survived. 
 
 In the case of Couch v. Steel (r), the Court of Queen's Bench Couch v. ^tcd 
 laid down a broad principle as to the right to sue for breach of 
 statute, which, however, has failed to meet with acceptance in 
 a later case before the Appellate Court. There the Act 7 & 8 
 Vict., c. 112, s. 18 provided, that every sea-going ship should 
 have on board a sufficient supply of medicines, and specifically 
 of Hme juice, sugar, and vinegar, which latter should be served 
 out whenever the crew was being dieted on salt provisions. In 
 case of default in keeping the supply of medicines, the owner 
 was to incur a penalty of 20/. for each default ; and the master 
 a penalty of 5/. for each default in serving out the lime juice. 
 By s. <62 of the Act all penalties (including the above), were 
 recoverable at the suit of Her Majesty's law officers, or at the 
 suit of any person, by information and summary proceeding 
 before justices. The plaintiflF, who was a seaman on board the 
 defendant's vessel, sued for breach of the obligation to keep 
 proper medicines on board, alleging illness, and special damage 
 arising from inability to be cured. The action was held to be 
 maintainable. Lord Campbell, C.J., in delivering judgment 
 said, that as far as the public wrong was concerned there was 
 no remedy but that prescribed by the Act of Parliament, the 
 penalty being annexed to the offence in the very clause of the 
 Act creating it. That as regards the special wrong done to 
 the plaintiff, if the statute had prescribed a particular mode 
 by which a person sustaining actual damage by reason of a 
 breach of the duty imposed by the statute was to receive com- 
 
 {q) Young \. Davis, 7 H. & N. 760 ; 31 L. J. Ex. 250 ; afiarmed 2 H. & 
 C. 197 ; Parsons v. St. Matthew, Bethnal Green, L. R. S C. P. 56 ; 37 L. J. 
 C. P. 62; Gibson v. Mayor of Preston, L. R. 5 Q. B. 218 ; 39 L. J. Q. B. 
 131. 
 
 {r) 3 E. & B. 402 ; 23 L. J. Q. B. 121.
 
 502 BEEACII OF STATUTE. 
 
 pensation, undoubtedly that mode ouly could be adopted. 
 But iu this case the penalty was recoverable by a common 
 informer. There was no provision for compensation to a 
 person sustaining special damage by reason of a breach of the 
 duty prescribed by the Act. Nor were there any words taking 
 away the right which the injured party would have at common 
 law to maintain an action for special damage arising from the 
 breach of a public duty ; the penalty given by the statute 
 beiug applicable only to the public wrong, and not to the 
 private damage. That being so, the Court said that no 
 authority had been cited to them, nor were they aware of any 
 in which it had been held, that in such a case the common 
 law right to maintain an action in respect of -a special damage, 
 resulting from the breach of a public duty (whether such duty 
 exists at common law or is created by statute), was taken away 
 by reason of a penalty recoverable by a common informer being 
 annexed as a punishment for the non-performance of the public 
 duty. 
 Atkinson Y. This case was naturally relied upon in the later case of 
 
 Water ICO) hs. Athinson V. Newcastle & Gateshead Water ivories Co. (s). There 
 the company was constituted under an Act which contained 
 the following provisions. By s. 35 the company was bound to 
 provide water, at a certain high pressure, for all private owners 
 who were willing to pay for it. By s. ?)G penalties at certain 
 rates were to be paid to the owners who were not so provided. 
 By s. 37, the company was to keep a supply of water for 
 public purposes, not including the extinction of fire, which was 
 also to be paid for. By s. 38 they were to fix fire plugs to be 
 used in case of fire ; and hj s. 42, they were to keep the pipes 
 to which such fire plugs were attached charged at high pres- 
 sure, unless prevented by certain specified causes, the use of the 
 water in case of fire being gratuitous, Section 43 provided that 
 in case of breach of any of the foregoing sections, the company 
 should be liable " to a penalty of 10/., and should also forfeit 
 to the town commissioners, and to every person having paid or 
 tendered the rate, the sura of 40s. for every day during which 
 such refusal or neglect should continue after notice in writing 
 of the want of supply." The plaintiff's declaration alleged 
 
 (s) L. R. C Ex. 404 ; reversed 2 Ex. D. 441 ; 46 L. J. Ex. 775.
 
 BREACH OF STATUTE. 503 
 
 that in consequence of the defendants' neglect to keep their 
 pipes properly charged, he had been unable to procure a proper 
 supply of water when a fire broke out upon his premises, where- 
 by they were burnt down. On demurrer, the Court of Exche- 
 quer held the declaration to be good, relying upon the authority 
 of Couch V. Steel. This decision was reversed upon appeal. 
 The Court said that considering the special objects of the Statute must 
 statute, by which a private company undertook special duties ^ctioirby^^^ 
 for purposes of profit, it was unlikely that the legislature had person injured, 
 intended to impose upon them, or that they had intended to 
 accept such very large liabilities, for breach of the only duty 
 which was unaccompanied by reward. In this conclusion they 
 were fortified by the framework of s. 43. By it breaches of 
 duties towards private owners, for which such owners were to 
 pay, were visited with penalties which went to the owners. 
 In such cases it was admitted by Couch v. Steel, that no action 
 was maintainable except for the penalties. Where the duties 
 were of a more public character, the penalties went to the 
 commissioners, but it w'as unlikely that actions should be main- 
 tainable in the latter case which were excluded in the former. 
 As regards Couch v. Steel, all the judges admitted that there 
 was a difference betw^een the statutes in the two cases, which 
 would render it unnecessary for them to over-rule that decision, 
 but they expressed much doubt as to the general principle 
 there laid down. Lord Cairns, L.C., said {t), " I must venture, 
 with great respect to the learned judges who decided that case, 
 and particularly to Lord Campbell, to express grave doubts 
 whether the authorities cited by Lord Campbell justify the 
 broad general proposition that appears there to have been laid 
 down, — that, wherever a statutory duty is created, any 
 person, who can show that he has sustained injuries from the 
 non-performance of that duty, can bring an action for damr.ges 
 against the person on whom the duty is imposed. I cannot 
 but think that that must, to a great extent, depend on the 
 purview of the legislature in the particular statute, and the 
 language which they have there employed, and more especially 
 when, as here, the Act is not an Act of public and general 
 policy, but is rather in the nature of a private legislative 
 
 (t) 2 Ex. D. p. 44S.
 
 501 
 
 BEEACH OF STATUTE. 
 
 Destination of 
 penalty not 
 conclusive as 
 to ri"lit to sue. 
 
 Injunction. 
 
 Cumulative 
 penalties. 
 
 bargain with a body of undertakers as to the manner in which 
 they will keep up certain pubHc works." Lord Justice Brett 
 also, while pronouncing no opinion as to the actual decision in 
 Couch V. Steel, said, " I am bound to say that I entertain the 
 strongest doubt whether the broad rule there enunciated can be 
 maintained ; the rule, that is to say, that where a new duty is 
 created by statute, and a penalty is imposed for its breach, 
 which penalty is to go to the person injured by such breach, 
 the penalty, however small and inadequate a compensation it 
 may be, is in such a case to be regarded as indicating an inten- 
 tion on the part of the legislature that there should be no 
 action by such person for damages, but that, where a similar 
 duty is created, and a similar penalty imposed, which is not to 
 go to the person injured, then the intention is that he is to 
 have a right of action. I do not think that proposition can be 
 supported." 
 
 There is a distinction between compelling the performance of 
 a statutory duty and punishing its breach. No provision of a 
 special remedy for violation of a statute will be a bar to an 
 injunction to enforce its observance, where such an injunction 
 would properly issue (m). 
 
 III. Where the only remedy for breach of a statute is by 
 suing for penalties, a further question arises, whether one penalty 
 only or several can be recovered. This, like the subject-matter 
 of the previous discussion, must be determined by reference to 
 the language and intention of the statute. In general, the 
 legislature, when it intends to accumulate penalties, says so 
 distinctly, by aflRxing the penalty to each repetition of the act, 
 or to every day during which it is continued. Frequently, 
 however, the Act first creates an offence, and then inflicts a 
 penalty for every such offence, and the question arises whether 
 conduct extending over a duration of time is a continuance of 
 one offence, or a repetition of it, amounting to several offences. 
 In a recent case, Denman, J., said, " In all the discussions it 
 seems to me that the distinction is between cases where the 
 penalty is imposed in respect of a complex and continuous act, 
 and those where it is imposed in respect of a single uncompli- 
 cated offence, which is complete and may be proved by evidence 
 
 (h) Cooper v. Whittiiujham, 15 Cli. D. 501 ; 49 L. J. Cb. 752.
 
 bueach of statute. 505 
 
 of one isolated act" (x). In other words, does the statute 
 intend to forbid a particular course of conduct, which may be 
 evidenced by successive acts, or does it intend to forbid the 
 successive acts themselves. In the former case only one penalty 
 can be recovered, and where a common informer may sue, only 
 one such informer may bring an action. In the latter case a 
 succession of penalties is recoverable, and each suit may be 
 started by a new informer. For instance, only one offence is 
 committed by exercising a man's ordinary trade on Sunday (ij) ; 
 by going in pursuit of game with a dog and a gun on the same 
 day (z) ; by omitting several returns in respect of articles 
 taxable in several places under the same statute (a) ; by allow- 
 ing a child to remain unvaccinated for three mouths from its 
 birth (b) ; by keeping an unlicensed house for music and danc- 
 ing (c). On the other hand under the various statutes which 
 forbid the sale of unwholesome meat, of unla^^i■ul copies of 
 works of art, or the commission of bribery, each fresh sale, or 
 each act of bribery, is a distinct offence, punishable by a dis- 
 tinct penalty (rf). 
 
 Cursing occupies an intermediate position. ""\Yhere several Cursing, 
 oaths are made use of on one occasion it is but one swearing, 
 and consequently there is only one offence, and only one penalty 
 is incurred, though such penalty is cumulative, being at the 
 rate of two shillings for each oath ; but if the same set of 
 oaths were used on two distinct occasions, though they all 
 occurred on the same day, there would be several ollences, and 
 a penalty would be incurred for each distinct swearing. There 
 is no decision that if a man swore at one person at one time of 
 the day, and at another person at another time, he would not 
 be liable to two penalties. In such a case he would be liable 
 to two penalties, because there would be two offences " (e). 
 
 (x) L. R. 10 C. P. at p. 597. 
 
 (y) Crepps 4. Burden, Cowp. 640. 
 
 (2) R. V. Lovtt, 7 T. R. 152. 
 
 {a) Attorney-General \. McLean, 1 H. & C. 750 ; 32 L. J. Ex. 101. 
 
 (6) PUcher v. Stafford, 4 B. & S. 775 ; 33 L. J. M. C. 113. 
 
 (c) Garrett v. Messenger, L. R. 2 C. P. 583. So for practising as an 
 apothecary ; Apothecaries' Co. v. Jones, [1893] 1 Q. B. 89. 
 
 (d) Me Hartly, 31 L. J. M. C. 232 ; Ex parte Beal, L. R. 3 Q. B. 387 ; 
 37 L. J. Q. B.' 161 ; MUnes v. Bale, L. R. 10 C. P. 591 ; 44 L. J. C. P. 
 
 (e) Per Brett, J., L. R. 10 C. P. at p. 595 ; 44 L. J. C. P. at p. 339; 
 following Reg. v. Scott, 4 B. & S. 368 ; 33 L. J. M. C. 15.
 
 506 BREACH OF STATUTE. 
 
 IV. When the particular form of remedy provided by a 
 statute is resorted to, either by choice or because no other is 
 available, a further question arises, who is entitled to enforce 
 this remedy ? 
 Who may sue There are four classes of parties who may sue for statutory 
 for penalties, penalties:—!. Parties aggrieved by breach of the statute; 
 2. Common informers ; 3. Parties specially denoted by the 
 statute ; and 4. The Crown. In every case except the last the 
 right to sue must be made out, expressly or by implication, 
 from something contained in the statute. No private person 
 can sue for a statutory penalty unless it appears from the 
 statute that he was intended to do so (/). 
 Who is a party 1- The meaning of the term " party aggrieved " was. discussed 
 grieved. jj^ ^j^g recent case of Ptolinson v. Currey (r/), where Bramwell, 
 
 L. J., said, " The expression ' party grieved ' is not a technical 
 expression ; the words are ordinary English words, which are to 
 have the ordinary meaning put upon them. A party grieved is 
 not brought into existence by the statute which gives him a 
 penalty, he is a person who is supposed to exist, and the statute 
 is passed on account of his grievance, and the action for 
 penalty is given to him. There may be cases in which the 
 statute states who is the party grieved, but a party grieved 
 is a person who exists, and on account of his existence and his 
 grievance the statute gives him a remedy. A person who is 
 not otherwise aggrieved than as one of the general public, is 
 not a party grieved in the proper meaning of the phrase, and 
 cannot sue for j^enalties which by the statute are reserved for 
 such a party (//), 
 "Wben he may When a statute is passed to improve the position of any 
 person, or class of persons, aggrieved in the above sense, if a 
 penalty or forfeiture is imposed, and nothing is said as to its 
 disposition, it goes to and may be sued for by the party 
 aggrieved. This was so laid down in reference to the statute 
 2 Edw. VI. c. 13, which provided that no one should carry 
 away tithable produce before the tithes had been divided or 
 agreed for with the person entitled to them, under the pain of 
 
 (/) See per Lord Selbome, C. 8 App. Cas. at p. 358. 
 {(/) 7 Q. B. D. 465. See p. 470. 50 L. J. Q. B. 561. See too In re 
 Rivieres Trade Mark, 26 Ch. D., pp. 54 — 57. 
 
 ih) Boyce v. Higgins, 14 0. B. 1 ; 23 L. J. C. V. 5. 
 
 sue.
 
 BREACH OF STATUTE. 507 
 
 forfeiture of treble value of the tithes so carried away. The 
 treble value was sued for on behalf of the Crown, no one being 
 named or entitled to receive it. The claim was rejected, and it 
 was held that the party interested in the tithes should recover 
 the treble value in an action of debt. " And whensoever a for- 
 feiture is given against him, that doth dispossess, &c., the 
 owner of his property, as here he doth of his tithes, there the 
 forfeiture is given to the party grieved or dispossessed, and the 
 rather for that this is an additional law, as hath been said, 
 and made for the benefit of the proprietor of the tithes " (i). 
 
 So if a statute provide a remedy for the party grieved, 
 though it do not give any express penalty or forfeiture, he 
 may have an action upon the statute (k). 
 
 Any proceeding which the statute authorises on behalf of the 
 party grieved, must expressly appear to be instituted by him or 
 at his instance. It is not sufficient that the fact should be 
 stated in the final judgment. It must be embodied in the 
 information or statement of claim, and must be supported by 
 the evidence (?). 
 
 2. A common informer is one who, having no special interest Suit by 
 in the observance of the statute, sues to enforce it, and to i°^^ej., 
 recover the penalty, either wholly for himself, or on behalf of 
 the Crown and himself — qui tarn pro rege quam fro se ipso. No 
 such proceeding can be taken by a common informer, unless he 
 is expressly authorised by statute, since at common law he has 
 no locus standi whatever. Where a penal statute enacted " that 
 any pecuniary penalty imposed by this Act, exceeding the sum 
 of 20/., may be sued lor and recovered by any person who will 
 sue for the same in any Court of Eecord at Westminster, and 
 any pecuniary penalty not exceeding the sum of 20/. shall 
 and may be recovered before any justice of peace ; " it was 
 held that a common informer could not recover any penalty 
 less than 20/. (/»)• 
 
 (i) 2 Inst. 650, 1 Com. Dig., Action upon Statute, F. ; Bradlaugh v. 
 Clarke, 8 App. Cas. 354. 
 
 (k) 2 Inst. 486. Com. Dig., uhi sup. 
 
 (I) Hex V. Daman, 2 B. & A. 378 ; Heg. v. Hicks, 4 E. & B. 633 ; 24 L. 
 J. M. C. 94. 
 
 (vi) Flcmivg V. Bailey, 5 East, 313 : Bradlaugh v. Clarke, 8 App. Cas. 
 354. As to wlietiier a common informer suing for his own benefit, and not 
 qui iam, is vitbin the limitation of j^time contained in 31 Eliz. c. 5, s. 5, see
 
 508 
 
 BREACH OF STATUTE. 
 
 Statutory 
 plaintifif. 
 
 Suit by Crown. 
 
 Eight to sue 
 shared by 
 Crown and 
 informer. 
 
 A corporation cannot sue as a common informer, unless ex- 
 pressly authorised to do so by statute (fi). 
 
 3. Sometimes the statute which creates an obhgation reposes 
 in some specified person or body the right to enforce it, by 
 suing for the penalty. The party so specified sues as a sort of 
 public prosecutor, and is neither a common informer nor a 
 party grieved. Consequently his proceedings are not within 
 the periods of limitation prescribed by 31 Eliz. c. 5, s. 5, or by 
 3 & 4 Will. IV. c. 42, s. 3 (o). 
 
 4. In the absence of any provision to the contrary, either by 
 express words or by implication, a penalty or forfeiture given 
 by Act of Parliament belongs to, and may be sued for, by the 
 Crown (p). This proposition was admitted on all hands in the 
 recent case of Clarke v. Eradlaugh (q), but it was contended 
 on behalf of the plaintiff", that a contrary implication did arise 
 from the words of the statute sued on (29 & 30 Vict. c. 19, 
 s. 5), which declared that the penalty was to be recovered by 
 action in one of Her Majesty's Superior Courts of Westminster. 
 It was argued that the Sovereign could only proceed by inform- 
 ation in the Exchequer, and therefore that an ordinary suit by 
 a common informer must have been contemplated. This con- 
 tention was successful in the lower courts, but was overruled by 
 the House of Lords, which held that the Crown could sue in any 
 of the Superior Courts. 
 
 When the statute directs that one moiety of the penalties 
 shall be to the use of the Crown, and the other moiety shall be 
 to the use of any person who shall prosecute for the same, the 
 Crown may sue for the entire penalty unless some private 
 person has first sued for a moiety. And whej-e the whole 
 penalty may be sued for by any informer, the Crown may 
 equally recover it, unless anticipated by an informer (r). 
 
 Dyer v. Best, L. R. 1 Ex. 152 ; 35 L. J. Ex. 105 ; Robinson v. Carrey, 7 
 P. B. D. 465, at p. 471 ; 50 L. J. Q. B. 561. 
 
 {n) Guardians of St. Leonard's, Shoreditch v. Franklin, 3 C. P. D. 377 ; 
 47 L. J. C. P. 727. 
 
 (o) Robinson v. Carrey, ubi sup. 
 
 ( p) Com. Dig., Forfeiture, C ; affirmed 7 Q. B. D. at p. 49 ; 8 App. Cas. 
 at p. 358, 
 
 {q) 7 y. B. D. 38 ; 50 L. J. Q. B. 342 ; 8 App. Cas. 354 ; 52 L. J. Q. B. 
 505. 
 
 (r) Rex V. Clark, 2 Cowp. 610 ; Rex v. Hymen, 7 T. R. 536 ; affirmed 
 per Lord Blackburn, 8 App. Cas. at p. 376.
 
 BREACH OF STATUTE. 509 
 
 "Where, however, a suit has been commenced on behalf of the 
 informer for his share of the penalties, the right to recover 
 them is vested in him, and no subsequent act of the Crown, 
 such as a pardon to the offender, can deprive him of his right. 
 Even an act of indemnity subsequently passed has been con- 
 strued as leaving the previously vested right intact (s). 
 
 (s) Gr asset v. Ogilvie, 5 Bro. P. C. 527. As to the power of the Crown to 
 remit a penalty imposed upon a convicted offender, see 22 Yict. c. 32 ; Todd 
 V. Itohinson, 12 Q. B. D. 530.
 
 CHAPTER XVII. 
 
 When 
 
 executors 
 mav sue. 
 
 1. Actions ly and against Exe- 
 
 cutors. 
 
 2. Actions ly Trustees in Banlc- 
 
 ru2')tcy. 
 
 3. Actions by Principal against 
 
 Agent. 
 
 4. Actions by Agent against Prin- 
 
 cipal. 
 
 I PROPOSE to conclude the portion of this work which treats 
 of the measure of damages, by examining some cases in which 
 the parties stand in a pecuUar relation to each other, which 
 aflects their right to sue, and the amount they may recover. 
 Such a relationship exists in the case of actions by trustees 
 in bankruptcy, and by and against executors. In all these, 
 the damages which can be obtained may be modified, more 
 or less, by the fact that the party to the suit is not the person 
 originally entitled to sue or be sued, but one placed in that 
 position by law. So far as they are not modified in this manner^ 
 they come under the ordinary rules laid down previously. 
 Damages in actions by a principal against his agent are in 
 o-eneral exactly the same as they would be where the parties 
 were unconnected with each other. The case, however, admits 
 of some remarks peculiar to itself, for which this chapter seems 
 to present the most proper place. 
 
 I. It would be impossible, without wandering from the strict 
 object of the present treatise, to state the cases in which actions 
 will lie by and against executors. The subject has been so 
 exhausted and discussed in well-known works upon the subject, 
 that it wotild be waste of time to enter upon it here at any 
 length (a)- The broad principle upon which actions by 
 executors rest, is, that they must be brought in respect of some 
 wrong which affects the personal estate of the deceased. Hence 
 
 (rt) See Wms. Exors. 693, 1593, 9th ed. ; 1 Wms. Saund. 216, a. ; 1 "Wms. 
 Notes to Saaud. 239.
 
 ACTIONS BY EXECUTORS. 511 
 
 an executor may sue an attorney for negligence in investigating 
 the title of an estate about to be conveyed to the testator, by 
 means of which he took a bad title, and was unable to sell the 
 property. And the Court remarked, that if a man contracted 
 for a safe passage in a coach, and sustaiued an injury by a fall, 
 by which his means of improving his personal property were 
 destroyed, and that property in consequence injured, the 
 executor might sue in assumpsit for the consequences of the 
 breach of contract (h). Accordingly, quite recently, where a 
 passenger injured on a railway died after an interval, his 
 executrix was held entitled to recover in; an action of contract 
 the damages to his personal estate arising in his lifetime from 
 medical expenses and loss occasioned by his inability to attend 
 to business (c). And so the executor may sue for breach of a 
 contract to complete the sale of land, whereby the deceased 
 lost the benefit of the purchase, and was put to expense in 
 endeavouring to procure the title, and was deprived of the use 
 of his money deposited (d). Isor is it necessary to prove actual 
 and specific damage, provided the breach of contract might 
 possibly have caused such damage. Therefore, the executor 
 may sue for breach of covenant not to fell or lop ^timber-trees, 
 committed during the life of the testator, though none of the 
 timber was removed by the defendant (e). And so upon a 
 covenant to repair, broken before the death of the cove- 
 nantee (/). In such a case though the covenant relates in 
 terms to the realty, a breach of it is a direct injury to the 
 personal estate ; and this is the sort of injury which is 
 primarily contemplated by it. But it is different where the 
 
 (b) Knight v. QjMrles, 2 B. & B. 102. And see per Willes, J., in Alton 
 V. Midland By. Co., 19 C. B. N. S. at p. 242 ; 31 L. J. C. P. at p. 298. 
 
 (c) Bradshaw v. Lancashire and Yorkshire Rt/. Co., L. R. 10 C. P. 189 ; 
 44 L. J. C. P. 148 ; and see Potter v. Metropolitan District Ry. Co., 30 L. 
 T. N. S. 765. Recovery of verdict in such an action is no bar to damages 
 under Lord Campbell's Act ; Daly v. Dublin, Wickloio and Wexford Ry. 
 Co., 30 Jr. L. Rep. G. L. 514. It has, however, been ruled that uo such 
 action can be brought where the suit is founded solely upon a tort, as, for 
 instance, where the plaintiff sued as administratrix of her late husband, 
 alleging that he had been run over by the defendants' negligence, whereby his 
 personal estate had been diminished by loss of wages, and medical expenses ; 
 PuUing v. G. E. Ry. Co., 9 Q. B. D. 110 : 51 L. J. Q. B. 153. See also 
 Leggott v. Gt. Northern Ry. Co., 1 Q. B. D. 599. 
 
 (d) Or.ne v. Brouqhton, 10 Bing. 533. 
 
 (e) Raymond v. Fttch, 2 0. M. & R. 588. 
 (/) Ricketts v. Weaver, 12 M. & W. 718.
 
 512 ACTIONS BY EXECUTORS. 
 
 primary object of the covenant is to preserve the real estate 
 
 Cases where in specie. There the heir, and not the executor, is the person 
 
 execuTo*r must to sue, even for a breach in the lifetime of the testator, unless 
 
 sue. some consequential damage to the personalty has ensued. So 
 
 it was held, where the actions were for breach of covenant 
 
 for title and right to convey, and for further assurance {(j). 
 
 Lord Ellenborough, C. J., said (A), " In this case there is no 
 other damage than such as arises from a breach of the de- 
 fendant's covenant that he had a good title, and there is a 
 difficulty in admitting that the executor can recover at all 
 without also allowing him to recover to the full amount of the 
 damages for such defect of title ; and in that case a recovery by 
 him would bar the heir, for I apprehend the heir could not 
 afterwards maintain an action for the same breach. Had the 
 breach been assigned specially with a view to compensation for 
 a damage sustained in the lifetime of the testator, and so as to 
 have left a subject of suit entire to the heir, this action might 
 have gone clear of the difficulty." And on this ground the 
 case was distinguished from that of Lucy v. Levingto7i (i), 
 because there an eviction had taken place in the lifetime of the 
 testator ; and, therefore, the damages in respect of such eviction, 
 for which the action was brought, were properly the subject of suit 
 and recovery by the executor, and nothing descended to heir. 
 
 In no case can an action be maintained, where it appears 
 upon the face of the record that no damage to the personal 
 When executor estate could have arisen. Hence an executor cannot sue for 
 breach of promise of marriage to the testator, unless special 
 damage is shown (k). Executors are the representatives of the 
 temporal property, that is, the debts and goods of the deceased, 
 but not of their wrongs, except where those wrongs operate to 
 the temporal injury of their personal estate. If such an action 
 were maintainable, then every action founded on an implied 
 promise to the testator, where the damage consists in the pre- 
 vious personal suffering of the testator, will be also maintain- 
 able by the executor. All injuries affecting the life or health 
 
 (g) Kincjdon v. Nottle, 1 M. & S. 355 ; Khg t. Jones, 5 Taunt. 418 ; i 
 M. & S. 188 ; affirmed on error. 
 (A) 1 M. & S. 363. 
 (i) 2 Lev. 26. 
 {k) Ante, p. 483.
 
 ACTIONS BY EXECUTORS. 513 
 
 of the deceased ; all such as arise out of the uuskilf ulness of 
 medical practitioners ; the imprisonment of the party brought 
 on by the negligence of his attorney ; all these would be breaches 
 of the implied promise by the person employed to exhibit a 
 proper portion of skill and attention. "We are not aware, how- 
 ever, of any attempt on the part of the executor to maintain an 
 action in any such case. Where the damage done to the 
 personal estate can be stated on the record that involves a 
 different question. Loss of marriage may, under circumstances, 
 occasion a strictly pecuniary loss to a woman, but it does not 
 necessarily do so ; and unless it be expressly stated on the 
 record, the Court will not intend it {Ic). 
 
 Since then no action can be brought except in respect of Principle of 
 injury to the personal estate, it follows that where an action is '° ' 
 brought, damages can only be recovered on account of such 
 injury. Accordingly, in an action for distraining on the testa- 
 tor's goods, when no rent was due, and forcing him to pay 
 9/. los. to have the distress withdrawn, it was held that dumages 
 must be limited to the amount so paid (/). 
 
 Actions on a contract made with the deceased, or for a debt AcUitional 
 due to him, were always maintainable by the executor. But given by 
 it was a principle of common law that if an injury was done 
 either to the person or property of another, for which damages 
 only could be recovered in satisfaction, the action died with 
 the person to whom, or ht/ whom the wrong was done (m). 
 Three remarkable changes in. this rule have been made, Stat. 
 4 Edw. III. c, 7, enacts, that where any trespass has been done ^ Ed. III. c 7. 
 to the testators, as of the goods and chattels of the said testators 
 carried away in their life, the executors in such cases shall have 
 an action against the trespassers, and recover their damages in 
 like manner as they whose executors they be should have had if 
 they were living. By an equitable construction of this statute, 
 an executor or administrator shall now have the same actions 
 for any injury done to the personal estate of his testator in his 
 lifetime, whereby it is become less beneficial to the executor. 
 
 (k) Per Lord Ellenborough, C. J., Chamberlain v. Williamson, 2 M. & S. 
 408, 415 ; followed Finlay v. Chirney, 20 Q. B. D. 494 ; 57 L. J. Q. B. 
 247. 
 
 (Z) LocliierY. Paterson, 1 C. & K. 271. 
 
 (m) Wms. Esors. 697, 9th ed. ; Pulling v. G. E. Rij. Co., [ante, p. 511, 
 note (c). 
 
 M.D. ^ ^
 
 514 
 
 ACTIONS BY EXECUTORS. 
 
 3&4 W. 
 c. 42. 
 
 IV, 
 
 9 & 10 Vict, 
 c. 93. 
 
 Damages 
 limited to 
 pecuniary loss. 
 
 as the testator himself might have had, whatever the form of 
 the action may be {n). 
 
 By Stat. 3 & 4 "\Y. IV. c. 42, s. 2, the executors or adminis- 
 trators may sue for any injury committed in the lifetime of 
 the deceased to his real estate, so as such injury shall have 
 been committed within six calendar months before the death, 
 and provided the action is brought within one year after it (o). 
 Even independently of this statute, however, where the de- 
 fendant has severed part of the freehold, as trees, grass, or 
 corn, and then carried it away, although the executor could not 
 sue for the act of severance, he might sue for the taking of the 
 severed chattel, by virtue of the Stat, of Edw. III. {p). This 
 mode would in many cases evade the limitation imposed by the 
 later Act. 
 
 Stat. 9 & 10 Vict. c. 93, commonly called Lord Campbell's 
 Act, gives the executor or administrator of any person whose 
 death has been caused by the wrongful act, neglect, or default 
 of any other person, an action to recover damages in respect 
 thereof, when the act is such as would (if death had not 
 ensued) have entitled the party injured to sue. The action is 
 to be for the benefit of the wife, husband, parent, and child of 
 the deceased {q). And the jury may give such damage as they 
 may think proportioned to the injury resulting from such death 
 to the parties for whose benefit it is brought, and are to divide 
 it among them by their verdict. In assessing damages under 
 this Act, the jury are confined to the pecuniary loss sustained 
 
 (n) 1 Wms. Saund. 217, b. ; 1 Wms. Notes to Saund. 244. The remedy 
 given by this statute has been held to include administrators, and by 25 Ed. 
 III. c. 5, was extended to executors of an executor ; ibid. 
 
 (o) If a plaintiff dies, his executor may continue the action, but the damages 
 must be limited to the six months ; Jones v. Simes, 43 Ch. D. 607 ; 59 L. J. 
 Ch. 351. 
 
 ( p) Wms. Exors. 700, 9th ed. ; JFilliams v. Breedon, 1 B. & P. 330. 
 
 (q) See the interpretation clause, and Dickinson v. N. E. Ry. Co., 2 H. 
 & C. 735. By 27 & 28 Vict. c. 95, s. 1. if there is no executor or adminis- 
 trator, or no action is brought within six months, the persons beneficially 
 interested in the result of the action may sue. Where a sum of money was 
 jiaid by a railway company without suit to the executors of a person killed by 
 an accident on a railway, as compensation, it was held that upon application 
 to the Chancery Division by the persons referred to in sect. 2 of the above 
 Act, the fund might be distributed among them in the same way as the jury 
 could have done after verdict ; Buhner v. Buhner, 25 Ch. D. 409 ; 53 L. J. 
 Ch. 402. The Admiralty rule as to half damages in case of collision does not 
 apply to actions brought under Lord Campbell's Act ; the Bernina (2), 12 P. 
 D. 58, affirmed 13 App. Ca. 1 ; 57 L. J. P. D. & A. 65.
 
 ACTIONS BY EXECUTORS. 515 
 
 by the family, and cannot take into consideration the mental 
 suffering of the survivors. This rule was laid down after much 
 consideration in a case in which the deceased, who was thirty- 
 four, had an income, as a merchant, of 8501. per annum, which, 
 according to the probable duration of his life, calculated by the 
 government annuity tables, amounted to 13,1887., of which the 
 widow would have had the joint enjoyment during his life. 
 On the other hand, by his death she became at once entitled to 
 7,000/., leaving a balance of 6,188/. The judge directed the 
 jury to consider, as to the pecuniary loss, how much of her 
 husband's income a wife living with him and maintained ac- 
 cording to her station of life, might be supposed to enjoy. He 
 further told them, that if they considered the plaintiff entitled 
 to any compensation for the bereavement she had sustained, 
 beyond the pecuniary loss, they might allow for it. They gave 
 a verdict for 4,000/. A new trial was granted, on the ground 
 of misdirection in allowing the jury to take the mental suffering 
 of the plaintiff into their estimate, and because the damages 
 were excessive, supposing this element to be excluded (r). In 
 a former case, the deceased was a labourer, aged thirty-three, 
 and earning 1/. a week. Parke, B., directed the jury not to 
 consider the value of his existence as if they were bargaining 
 with an annuity office, in which case they would have to take 
 all possible accidents into account, but to give what they con- 
 sidered a reasonable compensation. They gave 100/. (s). 
 
 The mode of calculating damages under this Act was much Principles on 
 considered in the case of Rowley v. LondoJi and North Western ^i^'^y^iossls to 
 Railicaij Co. (t). There one of the persons, on whose behalf be calculated. 
 damages were claimed, was the mother of the deceased. She 
 was at the time of the death sixty-one, and her son was forty. 
 He was a professional man, and was bound by a personal cove- 
 nant to allow her an annuity of 200/. during their joint lives. 
 The judge directed the jury that they might allow her such a 
 sum as would purchase an annuity of 200/. a year, for a person 
 sixty-oue years of age, according to the average duration of 
 human life. The elements placed before the jury for deter- 
 
 (r) Blake v. Midland Ey. Co., 18 Q. B. 93 ; 21 L. J. Q. B. 233. 
 (s) ArmsworthY. S. E. Ry. Co., 11 Jur. 758. 
 
 it) L. R. 8 Ex. 221 ; 42 L. J. Ex. 153 ; Phillips r. L. Jt S. 11 . Ry. Co., 
 ante, p. 454. 
 
 L L 2
 
 516 
 
 ACTIONS BY EXECUTORS. 
 
 Deduction on 
 account of 
 insurance. 
 
 mining this sum were certain tables used by insurance com 
 panies, showing the average duration of life, and a calculation 
 of the value of such an annuity on Government or other very 
 good security, Brett, J., held that the whole of the evidence 
 upon this point was inadmissible, inasmuch as it placed before 
 the jury a wrong standard of damages. He said, " To the best 
 of my belief, the invariable direction to juries, from the time 
 of the cases I have cited (m) until now, has been, ' that they * 
 must not attempt to give damages to the full amount of a 
 perfect compensation for the pecuniary injury, but must take 
 a reasonable view of the case, and give what they consider, 
 under all the circumstances, a fair compensation.' .... I 
 have a clear conviction that any verdict founded on the idea 
 of giving damages to the utmost amount for the pecuniary 
 injury would be unjust." The other judges considered that 
 the general principle of fixing as damages such a sum as would 
 put the mother in the same pecuniary position as if her son 
 had not met with the accident was a sound one. It was ad- 
 mitted on all hands that there was an error in calculating the 
 annuity upon the probable duration of the mother's life, since 
 this overlooked the contingency that the son might have died 
 before her. It was also held that an annuity secured only by 
 the personal covenant of a professional man, must, in the 
 absence of evidence to the contrary, be of less value than an 
 annuity payable by Government ; and that in this respect also 
 there was an over-valuation. It was further held that the 
 probable duration of the mother's life must be calculated with 
 reference to the circumstances of the particular life in question, 
 making allowance for any defect in health and the like. But 
 that if such special circumstances existed, it was the duty of 
 the party who relied upon them, as diminishing the value of 
 the life, to establish their existence, and that in the absence of 
 such evidence the jury might properly be directed to consider 
 the life as an average life, and to value it according to tables of 
 average duration. 
 
 Money received from an insurance company upon the death 
 of the relative, must be taken into consideration in estimating 
 the amount of the compensation awarded under Lord Camp- 
 
 (u) Blake v. Midland Ry. Co. ; Armsworth v. S. E. Ry. Co., uhi sup.
 
 ACTIONS BY EXECUTORS. 517 
 
 bell's Act. In this respect there is a difference between an 
 action brought by the sufferer himself, and one brought on 
 behalf of his family. In the latter case the pecuniary loss 
 caused by the death is at once the basis of the action and the 
 measure of the damages ; consequently, whatever comes into 
 possession of the family by reason of the death, whether by 
 inheritance, insurance, or otherwise, must be taken into ac- 
 count. In the former case the ground of the action is the 
 wrong done to the individual. The fact that he has guarded 
 by anticipation against such an event, neither diminishes the 
 wrong itself, nor the liability of the wrong-doer to pay for it. 
 Where the amount payable under the policy has been settled 
 upon anyone who is entitled to compensation under Lord 
 Campbell's Act, the pecuniary benefit which accrues to him 
 from the premature death consists in the accelerated receipt of 
 a sum of money, the consideration for which had already been 
 paid by the deceased out of his earnings. In estimating the 
 loss of the claimant, the benefit from acceleration should be 
 compensated by deducting from the estimate of the future 
 earnings of the deceased the amount of the premiums which, 
 if he had lived, he would have had to pay out of his earnings, 
 for the maintenance of the poHcy {x). 
 
 The rule which has been laid down and adopted is that Damages not 
 " legal liability alone is not the test of injury, in respect of J.^^'^llf f^g^ny ' 
 which damages may be recovered under this statute ; but the secured, 
 reasonable expectation of pecuniary advantage by the relative's 
 remaining alive may be taken into account by a jury, and 
 damages given in respect of that expectation, if it be disap- 
 pointed, and the probable pecuniary loss thereby occasioned " (ij). 
 Thus a parent may recover for the loss of the probability that 
 his son would have continued to contribute to his mainten- 
 ance (z) ; and children may recover for the loss of the education. 
 
 {x) Hicks V. Newport Ry. Co., 4 B. & S. 403, note; followed Granti 
 Trunk lly. Co. of Canada v. Jennings, 13 App. Ca. 800 ; 58 L. J. P. C. 1 ; 
 Bmdbura v. Great Western Ry. Co., L. R. lU Ex 1 ; 44 L. J. Ex. 9. bee 
 
 ante, p. 455. _ , ^ t, xt o one . 
 
 {y) Daltonr. S. E. Ry. Co., 27 L. J. C. P. 227 ; 4 C B. N. S 296 ; 
 Franklin v. S. E. Ry. Co , 3 H. & N. 211 ; Pym v. 6-' iV. /.'y. Co , 2 B & 
 S 759 ; SIL. J. Q. B. 249 ; affirmed 4 B. & S. 396 ; 32 L. J. Q.^ B 3/7. 
 
 iz) Ualton V. S. E. R>/. Co., supra. See Hetherrmjton v. iV. E. Ry. Co., 
 9 Q. B. B. 160 ; 51 L. J. Q. B. 495 ; where the last pecuniary assistance 
 given by the son was five or six years before action.
 
 518 
 
 ACTIONS BY EXECUTORS. 
 
 No action 
 unless 
 
 deceased could 
 have sued. 
 
 On wliose 
 behalf. 
 
 comforts, and position in society, which they would have 
 enjoyed if their father had lived and retained the income which 
 died with him, and they had continued to reside with him ; 
 and even the probability that the deceased if he had lived 
 wonld have made provision for his children may be con- 
 sidered {a). And the remedy given by the statute being to 
 individuals, and not to a class, the action is maintainable,, 
 though the income of the deceased arises from land and per- 
 sonalty, and is not lost to his family by his death, if in conse- 
 quence of the death the mode of its distribution among the 
 members is changed (b). 
 
 If uo pecuniary damage is proved, the defendants are entitled 
 to the verdict {c). No damages can be recovered in respect of 
 funeral expenses or mourning {d). 
 
 It will be observed that this action will only lie under 
 circumstances which would have admitted of its being main- 
 tained by the deceased had he survived (e). It therefore is 
 barred by an accord and satisfaction with the deceased in his 
 lifetime (/), and will fail where the injury was the result of his 
 own negligence {g). And, until the recent change in the law, 
 it would have equally failed where the party met his death 
 while employed in the service of his master, in consequence of 
 the negligence of a fellow servant, provided the latter was a 
 proper person to be placed in the situation he filled (A). 
 
 A claim under Lord Campbell's Act may be preferred by an 
 infant who was en ventre sa mere at the time of the injury 
 which caused the death of its father (i). It was also held, 
 though with much difference of opinion, that the Admiralty 
 
 (n) Pym v. G. N. Ry. Co., supra. 
 
 (b) lb. 
 
 (c) Duckworth v. Johnson, 4 H. & N. 653 ; 29 L. J. Ex. 25. See as to 
 ■what proof is required, Hull v. Gt. Northern By., 26 Ir. L. Kep. C. L. 289 ; 
 Wolfe V. G. N. Ry., ib. 548 ; Johnston v. G. N. Ry., ib. 691. 
 
 {d) Dalton v. S. E. Ry. Co., siqira. 
 
 (c) This has reference not to the nature of the loss sustained, but to the 
 nature of the wrongful act complained of ; Fyvi v. G. N. Ry. Co., supra; 
 Batchelor v. Fortescue, 11 Q. 13. D. 474. 
 
 (/) Read v. G. E. Ry. Co., L. R. 3 Q. B. 555 ; 37 L. J. Q. B. 275. 
 
 (g) Tucker v. Chaplin, 2 C. & K. 730 ; Fyyn v. G. N. Ry. Co., 2 B. & 
 S. at p. 767. 
 
 (;\) Hutchinson v. Yorl; JV. d- B. Ry. Co.. 5 Ex. 343 : Wigmore v. Jay, 
 ibid. 354 ; Wigqitt v. Fox, 11 Ex. 832 ; 25 L. J. Ex. 188. iS'ow see the 
 Employers' Liability Act, 1880 (43 & 44 Vict. c. 42), s. 1. 
 
 (i) The George and Richard, L. li. 3 Ad. & Ec. 466.
 
 ACTIONS AGAINST EXECUTORS. 519 
 
 Court, under 24 Vict. c. 10, s. 7, had power to assess and 
 award similar damages in a proceeding in rem against a foreign 
 ship which had come within its jurisdiction. Accordingly 
 damages were granted against such a ship at the suit of a 
 plaintiff whose husband had been killed in a collision caused 
 by the improper navigation of the ship (Ic). This decision, 
 however, has been expressly overruled in an exactly similar 
 case by the Court of Appeal. It was stated that s. 7 only gave 
 jurisdiction in cases where the damage complained of had been 
 wholly caused by the ship. But the executors under Lord 
 Campbell's Act complained, not of the injury done by the ship 
 to the deceased, but of the injury resulting to the family from 
 the fact that the death had brought about a loss of income to 
 themselves (/). Actions under Lord Campbell's Act can now be 
 brought in the Admiralty Court, as being a division of the High 
 Court, buttheyare not Admiralty actions, and must be conducted 
 in the manner and according to the rules prescribed by that 
 Act, and full damages are recoverable, not half damages {m). 
 
 Where the action is brought against the executor, the Actions against 
 amount of damages recoverable depends upon the character ^^ executor. 
 in which he is sued. Where he can only be sued in his repre- 
 sentative character, he is in general only liable to the extent 
 of the assets. On the other hand, where the action can be 
 maintained against him in his individual capacity, he is per- 
 sonally responsible, just as any other defendant. Without 
 attempting to give a detailed account of all the principles on 
 this head, it may be advisable to point out the leading distinc- 
 tions which prevail. With this view it will be convenient to 
 consider, first the cases in which the defendant may be sued 
 as executor ; secondly, those in which he may be sued per- 
 sonally ; thirdly, the mode in which he should protest himself 
 by pleading, and the effect of a judgment against him. It 
 must be premised, however, that now claims against an execu- New pro- 
 tor or administrator as such may be joined with claims against 
 him personally, provided the latter are alleged to arise with 
 
 ceJure. 
 
 (/t) The Franconia, 2 P. D. 163. Contra, Smith v. Broivn, L. R. 6 Q. B. 
 
 729 
 
 (i) The Vera Cruz, 9 P. D. 96, affirmed 10 App. Ca. 59. 
 
 (m) Re Bernina (2), 12 P. D. 58, attirmed 13 App. Ca. 1 ; 56 L. J. P. D. 
 & A. 38.
 
 520 ACTIONS AGAINST EXECUTORS. 
 
 respect to the estate in respect of "which he is sued as executor 
 or administrator (;?). 
 When executor 1. It was an old principle of the Common Law that such 
 as^s^uch^ ^"^ personal actions as were founded upon any obligation, con- 
 tract, debt, covenant, or duty, on which the testator or intes- 
 tate might have been sued in his lifetime, survived his death, 
 and were enforceable against his executor or administrator to 
 the extent of the assets (o). And accordingly an action for 
 rent, incurred entirely in the lifetime of the testator, must be 
 brought against the executor in his representative capacity (p) ; 
 and he is not only liable upon all covenants of the testator 
 which have been broken in his lifetime, but also for breaches in 
 his own time so f^ir as he has assets. Thus if a tenant in tail 
 leases for years, and dies, and the issue in tail ousts the termor, 
 he shall have covenant against the executors, upon an ex- 
 press covenant for quiet enjoyment (q). And so upon an 
 express covenant, as for instance, to pay rent, the executor 
 of the lease will be liable as far as he has assets, even though 
 the term; has been assigned over, and although the covenant 
 runs with the land, so as to give an alternative remedy against 
 the assignee (r). Where, however, the obligation arises out 
 of an authority given by the deceased, it is in many cases 
 revoked by the death, and no action can be maintained against 
 the personal representative in respect of it. In the following 
 case, the plaintiff had contracted with A., the intestate, to sell 
 a picture, the property of the latter, for which service he was 
 to receive 100/. A. died, and after his death the plaintiff suc- 
 ceeded in selling it. He then sued the administratix for the 
 100/., alleging that she had confirmed the sale. It was held 
 that the declaration was bad, since the authority to sell was 
 
 (n) Orel. 18, R. 5. See as to counterclaims, Macdonald v. Carrington, 4 
 C. P. D. 28. 
 
 (o) 1 Wins. Saund. 216, b. ; 1 Wins. Notes to Saund. 240 ; Wms. Exors. 
 1593, 9th ed. The slow growth in our law of the liability of an executor in 
 respect of the acts and defaults of his testator was discussed in the judgment 
 of BowenandFry, L.J J., in FinUifi v. Chirney, 20 Q. B. D., at p. 502 ; 57 
 L. J. Q. B. 247, where his liability to be sued for a breach of promise of 
 marriage by his testator was considered. 
 
 {j>) Wms. Exors. 1634, 9th ed. 
 
 (7) Fitz. N. B. 145 (E), n. [a). 
 
 {r) Wms. Exors. 1632, 9th ed. See as to a breach of covenant by a testa- 
 tor to execute a power of appointment in favour of specific jjersuns, Re Parkin 
 [1892], 3 Cb. 510 ; 62 L. J. (Jh. 55.
 
 ACTIONS AGAINST EXECUTORS. 521 
 
 revoked by death, and the mere confirmation of the sale was 
 not a confirmation of the original contract, upon which the 
 sale had been effected. If the defendant had continued the 
 employment, with full knowledge that under the agreement 
 100/. was to be paid to the plaintiff on the sale, that sum of 
 100/. might have been the gauge or measure by which the jury 
 would estimate the plaintiff's damages, but no more. In the 
 absence of such evidence, a mere confirmation of the sale would 
 only make the defendant liable as upon an ordinary employ- 
 ment to sell (s). 
 
 An executor, however, is not liable on a contract which When executor 
 involved a matter of personal skill, as for instance on an under- "°* ^^ ®" 
 taking by an author to write a book, or by an engineer to build 
 a lighthouse. For tliis has become impossible by the death (/). 
 Nor on a contract to marry except perhaps on the rare occasions 
 when the breach can be shown to have caused special damage 
 to property. And then the action must be confined to the 
 special damage. The damages ordinarily recovered against a 
 living person would not be recoverable (u). 
 
 The same principles of common law which forbid actions Actions of tort. 
 by executors for torts, also forbid actions against them for a 
 similar cause. The rule, however, has been broken in upon 
 by statute : 3 & 4 W. IV. c. 42, s. 2, allows actions of tres- 3 & 4 W. IV. 
 pass, or on the case to be maintained against the executors or '^- ^^• 
 administrators of any person deceased; for any wrong com- 
 mitted by him in his lifetime to another in respect of his 
 property, real or personal, so as such injury shall have been 
 committed within six months before the death, and so as such 
 action shall be brought within six months after the executors, 
 &c., shall have taken upon themselves the administration of the 
 estate {x). But even independently of this statute, the plaintiff 
 has it frequently in his power to waive the tort. Where, 
 besides the crime, property is acquired which benefits the testa- 
 
 (s) Campanari v. Woodhurn, 15 C. B. 400 ; 24 L. J. C. P. 13. 
 
 (t) Marshall v. Broadkurst. 1 Tyrwb. 349 ; pei- Patteson, J., 10 A. E. 45. 
 
 (m) Finlay v. Cldrney, £0 Q. B. D. 494 ; 57 L. J. Q. 247, ante, p. 484. 
 Loss from having purchased a trousseau is not in general, but might, under 
 special circumstances, be such special damage. Compensation for temporal 
 or measurable loss must, in all actions against executors, be tested according to 
 the ordinary rules as to remoteness. lb. ante, p. 484. 
 
 (ic) See IVoodhovse v. Walker, 5 Q. B. D. 404 ; 49 L. J. Q. B. 609 ; Kirk 
 V. Todd, 21 Ch. D. 484 ; 52 L. J. Ch. 224.
 
 522 
 
 ACTIONS AGAINST EXECUTORS. 
 
 Vindictive 
 damages not 
 allowable 
 against an 
 executor. 
 
 Actions against 
 executors for 
 dilapidations. 
 
 tor, there an action for the vahie of the property shall survive 
 against the executor. As, for instance, the executor shall not 
 be chargeable at common law for the injury done by his testator, 
 in cutting down another man's trees, but for the benefit arising 
 to his testator he shall (//). An intestate had tortiously taken 
 and sold coal, the property of the plaintiff ; some of the tres- 
 passes were committed more than six months before his death. 
 The plaintiff sued his administrators in trespass under the above 
 statute for the wrongs done within the six months. He was 
 then allowed to bring an action for money had and received for 
 the coal sold previously, although no distinct evidence could be 
 given of the amount received for it. The jury gave what they 
 considered to be the value of the coal taken, deducting the 
 expense of raising and conveying it to market (z). 
 
 Of course, in such an action against the executors, vindictive 
 damages could not be given in respect of the malice of the 
 original trespasser, or even, I should conceive, in respect of 
 any insolent or violent behaviour while committing the injury, 
 except so far as it caused pecuniary loss. No doubt the execu- 
 tor himself would not be affected by the amount of the verdict, 
 as he w'ould not have to pay it out of his own pocket. It 
 might, however, be paid for out of the purses of the creditors, 
 which would be most unjust, and, in any case, it would be 
 making the legatees and next of kin suffer for the motives and 
 insolence of another party. 
 
 As was said quite recently in the Court of Appeal, in an 
 action brought against executors for breach of promise of mar- 
 riage, all claim to damages of an exemplary or sentimental 
 kind ceases with the death of the promisor (a). 
 
 An anomalous exception to the principle that actions for 
 tort do not survive, is the action for dilapidation against the 
 executor of a deceased incumbent. This has been explained 
 by Willes, C. J., on the ground that it is not considered as a 
 tort in the testator, but a duty which he ought to have per- 
 formed ; and therefore his representatives, so far as he left 
 
 (y) Per Lord iransfield, Hamhly v. Trott, 1 Cowp. 371, 376. See this 
 case, and the principle on which it was founded, fully discussed in Phillips v. 
 Homfray, 24 Ch. D. 439 ; f)2 L. J. Ch. 833. 
 
 (2) PoiccU V. Pees, 7 A. & E. 426. 
 
 (a) Finlay v. Chirney, 20 Q. B. D., at p. 507 ; 57 L. J. Q. C. 247.
 
 ACTIONS AGAINST EXECUTORS. 523 
 
 assets, shall be equally liable as himself (/>). But it is now 
 agreed that it is an anomalous action, based upon a particular 
 custom of the realm, and not upon the common and ordinary 
 principles of the law of England (c). The remedy is not 
 merely for dilapidations happening in the time of the last 
 incumbent, but for the dilapidations existing at the time his 
 incumbency ceases ; for he was bound to keep the vicarage in 
 sufficient repair, or to make compensation to the extent of 
 putting it in repair, and he had the same remedy against the 
 representatives of his predecessor, if he chose to employ it (d). 
 Two propositions have been laid down as to the amount of 
 repair : — first, that the incumbent is bound, not only to repair 
 the buildings belonging to his benefice, but also to restore and 
 rebuild them if necessary ; secondly, that he is bound only to 
 repair, and to sustain, and rebuild, when necessary. He is 
 bound to maintain the parsonage, (which must be assumed to 
 be suitable in point of size, and in other respects, to the bene- 
 fice), and also the chancel, and to keep them in good order and 
 substantial repair, restoring and rebuilding when necessary, 
 according to the original form, without addition or modern 
 improvement ; he is not bound to supply or maintain anything 
 in the nature of ornament, to which painting (unless necessary 
 to preserve exposed timbers from decay) and whitewashing, 
 and papering belong. It is upon this footing that damages 
 are to be estimated (e). If the state of the vicarage be such 
 that timber or stone could be got for the necessary repairs, 
 that would go in diminution of damages, but it is only a 
 circumstance to be taken into consideration in estimating the 
 sum payable by way of compensation (/). 
 
 There are also some cases in which the executor is in form ^"Jj'^^^'^^^j 
 sued upon a contract made with himself, and yet the action ^^g s^ch. 
 charges him in his representative capacity only, and the judg- 
 
 I 
 
 (h) Snllers v. Lawrence, Willes, 421. ^ 
 
 (c) Bryan v. Clay, 1 E. & B. 38 ; Ross v, Adcoch, L. R. 3 C. P. 655 ; 3/ 
 L. J. G. P. 290. 
 
 id) Per Parke, B., Bunhury v. Ueioson, 3 Ex. 558, 562. 
 
 (e) Per Cur., JFise v. Metcalfe, 10 B. & C. 299, 316. The right to recover 
 is confined to dilapidations to houses and buildings, and does not extend to 
 waste by digging gravel ; Boss v. Adcod; L. R. 3 C. P. 655 ; 37 L. J. C. P. 
 290. As to hot-houses, see Martin v. lioe, 7 E. & B. 237 ; 20 L. J. C^. B. 
 129. 
 
 (/) Bunhury v. Hewson, ubi sup.
 
 524 
 
 ACTIONS AGAINST EXECUTORS. 
 
 Actions against 
 executor per- 
 sonally. 
 
 Contract made 
 by him. 
 
 ment can only be for payment out of the assets. This is so, 
 where the action is for money paid by the plaintitf' to the use of 
 the defendant, as executor ( g). That imports that the plaintiff 
 has paid it, not on the personal account of the defendant, but 
 because he was executor ; that is, in release of something 
 which would otherwise have been a burden on the assets of 
 the testator. And the case is the sfime where the claim is 
 on an account stated between the plaiutilf and the defendant 
 as executor, of money due from the testator to the plaintiif (A) ; 
 or of money due from the defendant as executor to the plaintiff, 
 for the only proof admissible in support of such a cause of 
 action would be an account stated respecting debts due from the 
 testator himself (i). 
 
 2. In all the above cases, as we have seen, the executor is only 
 liable as holding the property of the testator, and the judgment 
 could only be tie bonis testatoris. There are, however, many 
 cases in which the executor is liable personally, whether he has 
 got assets or not. 
 
 The most obvious of these cases is where he is charged upon 
 a contract made with himself, or an obligation thrown upon 
 himself, subsequently to the death of the testator. For in- 
 stance, on a count for money lent to himself {Jc), or for money 
 had and received by himself, as executor, for the use of the 
 plaintiff. Where an executor receives money to the use of a 
 particular individual, it operates as a specific appropriation of 
 that money belonging to the party, and he, in his individual 
 capacity, must be liable for the money so received. It has 
 nothing to do with the accounts of the testator. If it be the 
 plaintiff's money, he is entitled to it, whether there be assets 
 or not, and. whether the executor have or have not applied 
 to other purposes the money so received (/). So where the 
 .claim is on an account stated with the executor of money re- 
 ceived by himself personally (m), or for goods sold and delivered 
 
 (.7) Ashby V. Ashhij, 7 B. & C. 448, 449, 451, 452 : Conurv. Shew, 3 M. 
 & W. 350. 
 
 {h) Segar v. Atkinson, 1 H. Bl. 102. 
 
 (i) Aishby v. Ashhy, 7 B. & C. 451 : and see Bowse v. Coxe, 3 Bing. 20 ; 
 6 B. & C. 255 : Powell v. Graham. 1 Taunt. 58*5. 
 
 {k) Rose V. Bowler, 1 H. Bl. 108 : Foieell v. Graham, 7 Taunt. 586. 
 
 (I) Ashby V. Ashhy, 7 B. & C. 451, 453. 
 
 (//() 7 Taunt. 586.
 
 ACTIONS AGAINST EXECUTORS. 525 
 
 to the defendant as executor, or for work and labour performed 
 and materials supplied to the defendant as executor, because 
 these necessarily imply debts due from the defendant in his own 
 right {ii). 
 
 So if executors carry on trade, they must do it as indivi- Traiing. 
 duals, and for their own advantage (o), and they will be per- 
 sonally responsible on all contracts entered into by them, even 
 though they do not receive anything for themselves, but carry 
 over the receipts to the account of the next of kin, for whose 
 benefit the trade is continued {p). 
 
 A submission to arbitration by an executor is a reference Effect of a 
 
 not onlv of the cause of action, but also of the other question ^'^'^.™'\s?°° ^o 
 " i arbitration. 
 
 whether or not the executor has assets. Therefore, where the 
 arbitrator 'has awarded the defendant to pay the amount of 
 the plaintiff's demand, it is equivalent to determining as 
 between those parties that the executor has assets. The defen- 
 dant is concluded by the award, and cannot plesbd ple)te admini- 
 stravit (q). But it is different where the arbitrator has merely 
 awarded that a certain sum is due from the estate, without 
 awarding that the executor is to pay it, for this amounts to no 
 admission of effects ; or where he directs the defendant to pay 
 it out of the assets, on a fixed day, for this means if there are 
 any assets in his hands at that time (/•). 
 
 A good deal of doubt has been raised as to the liability of Liability of 
 an executor for funeral expenses. The result of the decisions funeral 
 seems to be, that where the executor has personally ordered expenses, 
 the funeral, he is personally responsible whether there be 
 assets or not (s), and cannot, even out of the assets, as against 
 a creditor, retain more than a reasonable amount, regard being 
 
 (n) Corner v. Shew, 3 JI. k W. 350. 
 
 (o) Per Lord Mansfield, 1 T. R. 295. 
 
 (p) Wijhtman v. Townroe, 1 M. & S. 412. See as to the creditors' further 
 remedy against the testator's estate where the latter has directed that the 
 business shall be carried on, Re Johnson, Shearman v. Eobinson, 15 Ch. Div. 
 548 : Striekland v. Seymour, 22 Ch. D. 666. The trading executors may sue 
 as executors if the money recovered would be assets : Abbott v. Farfitt, L. K. 
 6 Q. B. 346-; 40 L. J. Q. B. 115 : Moseley v. Rendell, L. R. 6 Q. B. 33S ; 
 40 L. J. Q. B. 111. 
 
 {q) JVorlhington v. Barlow, 7 T. R. 453 : Barry v. Rush, 1 T. R. 691 : 
 Riddell v. Satton, 5 Bing. 200. 
 
 (r) Pearson v. Henry, 5 T. R. 6 : Love v. Honeylourne, 4 D. & Ry. 
 814. 
 
 (j) Brice V. Wilson, 8 A. & E. 349, n.
 
 526 
 
 ACTIONS AGAINST EXECUTORS. 
 
 Use and 
 occupation. 
 
 Actions for 
 rent due since 
 the death of 
 the testator. 
 
 had to the degree and condition in life of the deceased (/). 
 Even where the executor gives no order for the funeral, he is 
 hable for a reasonable amount, if he has assets, upon an implied 
 promise ; and where he is liable at all in this matter, he is 
 liable personally, and not in his representative character, inas- 
 much as the implied promise cannot place him in a different 
 condition from that in which he would have been if he had 
 made an express contract to that effect, which certainly would 
 only have bound him personally {u). AVhere, however, the 
 executor has not ordered the funeral, and it has been furnished, 
 not upon his credit, but upon that of some other person, he is 
 not liable primarily to the undertaker ; but if he had assets he 
 is liable to repay the reasonable expenses so incurred by the 
 party who has defrayed them {x). 
 
 It has been held that an action for use and occupation of 
 land by executors as such makes them personally liable {y). 
 But it appears that this is not invariably so. It has been 
 pointed out that the Stat. 11 Geo. II. c. 19, s. 14, allows land- 
 lords to maintain this action for lands held or occupied by the 
 defendant. Consequently, a decision which alleged a demise 
 to the testator, and then, without stating any entry by the 
 defendants, averred that they, as executors, promised to pay 
 the rent, was held good. Maule, J., said, " I think it discloses 
 a sufficient cause of action against the defendants in their 
 representative capacity. It in terms so charges them ; for it 
 means that the plaintiff is seeking to charge them in respect of 
 the assets of their testator. It is probable that they may be so 
 liable. If the testator held the premises, and if the defendants 
 since his decease have not actually occupied, but have held 
 only, and rent has accrued, they would not be personally liable, 
 but the assets in their hands would be liable " (2). 
 
 We have seen before, that actions for rent which became 
 due in the lifetime of the testator, must be brought against 
 the executor in his representative character, and the judgment 
 
 (0 Hancock v. Podmore, 1 B. & Ad. 260 : Edwards v. Edioards, 2 C. & 
 M. 612. See as to the position of an executor who was husband of the 
 deceased, In re McMyn, 23 Ch. D. 575. 
 
 (m) Rorjers v. Price, 3 Y. & J. 28 : Uayter v. Moat, 2 M. & W. 56 : 
 Corner v. Shew, 3 M. & W. 350 : Magennis v. Dempsey, I. R. 3 C. L. 327. 
 
 (x) Price v. Wilson, 8 A. & E. 349n. : Green v. Salmon, 8 A. & E. 348. 
 
 iy) Wifiley v. Ashton, 3 B. & A. 101. 
 
 (2) Atkins V. Humphrey, 2 C. B. 654, 658.
 
 ACTIONS AGAINST EXECUTORS. 527 
 
 can only be de bonis testatoris (a). "When a lease to the testator 
 devolves upon the executor, and rent becomes due after the 
 death, the lessor, whether he sues in debt or on the covenant 
 to pay rent, has his election either to sue him as executor, or to 
 charge him personally as assignee in respect of the perception 
 of the profits (h). And if he selects the latter course, it seems 
 to 'be immaterial whether the executor has entered or not, 
 because the fact of his being executor proves the allegation 
 that the estate of the lessee in the premises lawfully came to 
 the defendant (c). The result to the executor in either case is 
 the same, though it may involve a different mode of pleading. 
 Where an executor is sued in his representative capacity for 
 rent accruing in his own time, whether the action be debt, 
 covenant, or use and occupation, he may plead ^lene adminis- 
 travit : and, under that plea, may show that the land yields no 
 profit, and that he has no assets aliunde : but if the land yields 
 a profit equal to the rent, he will fail on such a plea, for he is 
 bound to apply the profits of the land towards payment of the 
 rent in the first instance, and his not doing so will be a devas- 
 tavit. If, then, the land yields some profit, but less than the 
 rent, it should seem that his plea should be plene adminislravit 
 propter the profit {d). Where, however, the executor is sued in 
 his individual capacity, as assignee, for rent subsequently in- 
 curred, he cannot plead plene adminisiravit, even although he 
 be named as executor in the declaration ; for if the rent be of 
 less value than the land, as the law pimd facie su^Dposes, so 
 much of the profits as suffices to make up the rent is appro- 
 priated to the lessor, and cannot be applied to anything else ; 
 and therefore the plea would confess a misapplication, since 
 no other payment out of the profits can be justified till the 
 rent is answered (e). The same effect will be attained by a 
 special plea, for the defendant may discharge himself from per- 
 sonal liability, by alleging that he is not otherwise assignee 
 than by being executor of the lessee, and that he has never 
 
 (a) Ante, p. 520. 
 
 {b) 1 Wms. Saund. 1 ; 1 Wms. Notes to Saund. 1. 
 
 (c) Williams v. Bosanquet, 1 B. & B. 238 : WoUaston v. Ifakewill, 3 M. 
 & G. 297 : He Bowes, 37 Ch. D. 128. 
 
 (rf) 1 Wms. Saund. Ill, a ; 1 Wms. Notes to Saund. 126 : Lyddall v. 
 Dunlapp, 1 Wiis. 4 : Wilson v. Wigrj, 10 East, 313. 
 
 (e) Buckley v. Pirk, 1 Salk. 317 ; Wms. Exors. 1634, 9tli ed.
 
 528 
 
 ACTIONS AGAINST EXECUTORS. 
 
 Where the 
 term has been 
 assigned. 
 
 How the profit 
 accruing from 
 the land is to 
 be estimated. 
 
 entered or taken possession of the demised premises ; and from 
 all liability as executor, by alleging that the term is of no value, 
 and that he has no assets (/). Where there are profits, but to a 
 less extent than the rent, the executor must confess that part, 
 and plead to the remainder of the action the deficiency of 
 assets (//). 
 
 If the term was assigned by the testator, it seems clear that 
 the executor cannot be charged as assignee, because the lease 
 did not pass to him ; but still he will be liable in debt for the 
 rent, unless the lessor has accepted the assignee as his tenant, 
 and even in that case the executor will be liable, as executor, 
 in covenant. If the executor enters, and afterwards himself 
 assigns the lease, then he is chargeable as assignee, for that 
 time only during which he occupied. And if he is sued for 
 rent incurred since the assignment by himself, he is liable in 
 his representative character only (A). 
 
 Since then the amount of damages which can be recovered 
 against the executor in an action for rent, depends so much 
 upon the amount of profit arising out of the premises, it is 
 important to inquire upon what principles this profit is esti- 
 mated. For this purpose, it is not sufficient to show that no 
 profit was received by the executor, unless he can also show 
 that no profit could have been received by the exercise of 
 reasonable diligence. Therefore where the testator was lessee 
 of premises at a rent of 90?. per annum, and after his death 
 the defendant made every eflFort to let them at the rent reserved, 
 but failed to do so, and never occupied the premises himself, 
 nor derived any rent or profit from them, the jury, however, 
 found that he might have let them for 60/. : it was held that 
 he was liable to this extent (?'). In a former case it appeared 
 that the lease to the testator contained a covenant to repair. 
 He had underlet with a similar covenant. The under-lessee 
 allowed the premises to get into such disrepair that they were 
 nearly worthless, and ultimately became insolvent, and ceased 
 
 (/) Per Tindal, G. J., Wollaston v. Hakewill, 3 M. & G. 321 : Kearsley 
 V. Oxlcy, 2 H, & G. 896. 
 
 ig) Ruhery v. Stevens, 4 B. & Ad. 241. 
 
 (h) Wms. Exors. 1640, 9th ed. ; 1 Wms. Saund. Ill, a ; 1 Wms. Notes to 
 Saund. 127 : Helier v. Casebert, 1 Lev. 127 : Zety/t v. Thornton, 1 B. & A. 
 625 : WUson v. Wigg, 10 East, 313. 
 
 (i) Hopwood V. Whaley, 6 G. B. 744.
 
 ACTIONS AGAINST EXECUTORS. 
 
 529 
 
 paying rent. The Court held that these facts were no defence 
 in an action against the executor. The real value, as against 
 one who takes to the premises, and accepts rents for them after 
 the death of his intestate, must be taken to be that which the 
 premises would have been worth but for his own act. If he 
 had performed the covenant to repair, which he was liable to 
 do, the premises would have been worth at least as much as the 
 rent. He cannot take advantage of his own wrong, by availing 
 himself of a reduction in value occasioned solely by the want 
 of repair in his own time. As to the nonpayment of rent by 
 the under-lessee, the plaintiff has nothing to do with it. The 
 value of the premises, as between him and the defendant, is not 
 affected by that (k). 
 
 But although the executor is bound to apply the profits of 
 the land in payment of rent, this rule, it seems, only applies to 
 the case of yearly profits issuing out of the land, and not to 
 money arising from the sale of land which he has disposed of (/). 
 Nor can any statement by the testator, as to the value of his 
 property, be any ground for charging the executors with such 
 value, if contained in deeds to which they are not parties (w). 
 
 Where, however, the action against the executor is brought Covenant to 
 on a covenant to repair, his liability prevails to the same extent 
 as that of any other assignee, and a plea that the premises had 
 yielded no profit since the testator's death, was bad on general 
 demurrer («). 
 
 The last case necessary to notice in which the executor is Effect of a 
 personally liable is where he has committed any act amounting \.*^^^!' '*^' 
 to a devastavit {o). Upon this point there was a difference 
 between the doctrines of Law and Equity. At law, it was 
 stated by Lord Ellenborough, that no case had decided that an 
 executor, once become fully responsible by actual receipt of a 
 part of his testator's property, for the due administration 
 thereof, could found his discharge in respect thereof, as against 
 
 {k) Per Cur. Hornidge v. Wilson, 11 A. & E. 645, 655. 
 
 {l) Collins V. Crouch, 13 Q. B. 542. Qucere, might not the money he 
 taken as representing the land, so as to make the interest upon it aa)enable to 
 the claims of the lessor ? 
 
 (m) Rowley v. Adams, 2 H. L. Ca. 770. 
 
 (n) Treinere v. Morison, 1 Bing. N. G. 89 : affirmed, Hornidge v. Wilson, 
 11 A. & E. 645 : Sleap v. Newnym, 12 G. B. N. S. llii. 
 
 (o) See as to what constitutes a devastavit, Wms. Exors. 1690, 9th ed. 
 ct seq. 
 
 M.D. M M
 
 530 ACTION'S AGAINST EXECUTOES. 
 
 a creditor seeking satisfaction out of the testator's assets, either 
 on the score of inevitable accident, as destruction by fire, loss 
 by robbery, or the like, or reasonable expectation disappointed, 
 or loss by any of the various means which afford excuse to 
 ordinary agents and bailees in cases of loss without negligence 
 on their part ( p). 
 in equity. Eut in E([uity an executor was relieved against a bond or 
 
 other claim upon his testator, brought up against him after 
 the assets had been accidentally destroyed, as by fire, or theft, 
 where there had been no delay or negligence upon his part {q). 
 Nor was he held responsil)]e for the failure or depreciation of 
 the fund in which any part of the estate might be invested, or 
 for the insolvency or misconduct of any person who might 
 have possessed it, or to whom it miglit have been necessarily 
 entrusted in the course of business, so long as he himself exer- 
 cised a reasonable diligence, and acted strictly within the line 
 of duty. But if he omitted to sell property when it ought to 
 have been sold, or left money due upon personal security, and 
 a loss ensued ; or if he had himself been the author of the 
 improper investment ; or had without necessity entrusted the 
 assets to a person in whose hands they were subsequently lost, 
 he was held liable, even where that person was his co-executor 
 or co-administrator (r). 
 
 The rules of Equity will now prevail over those at ]aw(s). 
 It is the duty of an executor, as of any other trustee, to 
 keep the property with which he is entrusted separate from 
 his own ; and where he mixes the assets with his own funds, 
 he will be strictly responsible for any loss that may ensue {t). 
 Proper mode 3. Where the executor is sued upon any cause of action 
 
 of pleading bv -, ,, ■ ^ , -u i 7 7 • , , , • 1 i , 
 
 an executor. ' '"here the judgment will be ae lo/us Icsiaforis, and he has not 
 assets to satisfy it, he should plead accordingly. For a judg- 
 ment against him, whether by default or upon a verdict on 
 any defence except j^/t«c adm/nufrarif, or plejie adminisiravit 
 
 ( p) Crosse v. Smith, 7 East, 258. 
 
 (q) Holt Y. Holt, 1 Cha. Ca. 190 : Lady Croft v. Lynchey, 2 Freem. 1 : 
 Jones V. Lewis, 2 Ves. Sen. 240. 
 
 (r) Clovyk V. Bond, 3 Myl. & Cr. 490, 496 : Rolinson v. Rohinson, 1 De 
 G. M. & G. 247 : Re Bird, Oriental Commercial Bank v. Savin, L. R. 16 
 Eq. 203. 
 
 (s) Judicature Act, 1873, s. 2.'», sub-s. 11. 
 
 {t) Freeman v. Fairlie, 3 Mer. 29, 43 : Clarke v. Tiprjinj, 9 Bcav. 292 : 
 Massey v. Banner, 4 JIadd. 413.
 
 ACTIONS AGAINST EXECUTORS. 531 
 
 pncter, is conclusive against him that he has assets to satisfy 
 such judgment {u). But upon the two last-named defences 
 the onus of proving assets lies upon the plaintiff, and a judg- 
 ment against him upon them, is only an admission of assets to 
 the amount proved to be in his hands {x). 
 
 "Whenever the action against an executor or administrator Judgment 
 can only be supported against him in that character, and he ^samst him. 
 pleads anj defence which admits that he has acted as such 
 (except a release to himself), the judgment against him must 
 be, that the plaintiff do recover the debt and costs to be levied 
 out of the assets of the testator, if the defendant has so much, 
 but if not, then the costs out of the defendant's own goods. 
 As where the defendant pleads a defence equivalent to non est 
 factum testatoris, or a release to the testator, or payment by 
 him, or non assumpsit, or ptene administvavit, which is found 
 against hira {y). But where the defence is ne timjues executor 
 or administrator, or a release to the defendant, and it is found 
 against him, the judgment is, that the plaintiff do recover both 
 the debts and costs de Iwiiis testatoris, &c., et si nou, de bonis 
 propriis. The reason alleged is, that the executor cannot but 
 know these to be false pleas. But it has been justly observed 
 that the same reason applies equally to other pleas where the 
 judgment is different (.?). If, however, the defendant has pleaded 
 any other defence, which goes to the whole cause of action, and 
 is found for him, he is protected («). 
 
 Except, however, where the judgment against the defendant 
 is on a defence oi plene administravit, which, as we have seen is 
 only conclusive to the amount of assets proved to exist, it is 
 really a matter of small importance to the executor how the 
 judgment is entered up. It only serves to postpone his fate by 
 a single stage. Tlie judgment is an admission of assets to 
 satisfy it. Therefore to a scire facias founded upon it, or an 
 action of debt suggesting a devastavit, the executor cannot 
 plead ptene administravit, bat only controvert the devaslavit ; 
 
 (m) 1 Wms. Saand. 219, b. ; 1 Wms. Notes to Saund. 249. 
 
 (cc) Ibid. ; Jacksunv. Bowie!/, Car. & M. 97: Yardlcy v. Arnold, ibid., 
 434 : Stroud v. Baiidridge, 1 (J. & K. 445. 
 
 {ij) 1 Wms. Saund. 335, n. 10 ; 1 Wms. Notes to Saund. 605, n. 10 ; 2 
 Wms. on Kxors. 1859, 9th ed. : Gorton v. Gregori/, 3 B. & S. 90. 
 
 (z) 1 Wins. Saund. 336, b. ; 1 Wms. Notes to Saund. 610. 
 
 (a) Edwards v. Bcthd, 1 15. & A. 254. 
 
 M M 2
 
 J32 ACTIONS BY TRUSTEES IN BANKRUPTCY. 
 
 of which fact the judgment, and the sheriff's return^ of nulla 
 bona testator is, are almost conclusive evidence, and judgment 
 will be against the defendant de bonis propriis (b). 
 
 Of course where judgment is given against the executor in 
 his individual capacity, it must be from the very first de bonis 
 propriis, and the testator's assets are not liable at all. This is 
 occasionally a very great hardship, where the plaintiff's claim 
 really arises out of something done for the benefit of the estate, 
 which may be perfectly solvent, though the executor personally 
 may be worth nothing (c). 
 
 II. Actions by Trustees in Bankruptcy. 
 Under the Bankruptcy Act, 1883, the property of a bank- 
 rupt divisible among his creditors is now administered by a 
 trustee appointed by the creditors or by the Board of Trade. 
 The property vests in him on appointment, and comprises 
 all property belonging to or vested in the bankrupt at the 
 commencement of the bankruptcy, or acquired by or devolving 
 on him during its continuance. It does not comprise property 
 held by the bankrupt in trust for other persons (d). It would 
 seem that the following observations, based upon decisions 
 respecting the rights and duties of assignees under former 
 Acts, may be made with regard to trustees under the Act now 
 in force, 
 rrinciple Actious by trustees in bankruptcy stand very much on the 
 
 upon which g footin"- as those by executors, except that the rights of the 
 
 trustees 01 ■~i ^ *■ 
 
 bankrupt latter are not so limited as those of the former ; for the execu- 
 
 may sue. ^^j, j-epresents the deceased as to all his contracts and personal 
 
 rights, whether they are available as assets for the payment of 
 his debts or not ; but the trustee takes only those beneficial 
 matters belonging to tlie bankrupt's estate which may be ap- 
 plied for the purpose of distribution amongst his creditors (e). 
 Consequently the right of action, and therefore the amount of 
 damages recover^ible, depends upon the existence and degree of 
 loss to the estate of the bankrupt. 
 Beckham y. This question was so exhaustively discussed in the case of 
 
 Drake. Beckham v. Drake, which ascended from the Court of Exche- 
 
 (&) 1 "Wms. Sauml. 219, c. 337 ; 1 Wms. Notes to Saund. 251. 
 (c) See Ashhi v. Ashhy, 7 B. h G. 449. 
 
 {d) Bankruptcy Act, 1883 ; 46 & 47 Vict. c. 52, ss. 20, 21, and 44. 
 (e) Per Williams, J., 2 H. L. Ca. 596.
 
 ACTIONS BY TRUSTEES IN EANKRUITCY. 633 
 
 qner to the House of Lords, that it will be necessary to do little 
 more than refer to that case and quote some passages from it. 
 The plaintiff had been engaged as foreman by the defendants 
 at a certain salary for seven years, either party making default 
 in their share of the contract to pay the other 500?. The 
 plaintiff sued for breach of this contract after his bankruptcy, 
 the defendants pleaded bankruptcy, and the plea was finally 
 held to be a good one, on the ground that the right of action 
 passed to the assignees (/). 
 
 The general principle is, that all rights of the bankrupt Cases in 
 which can be exercised beneficially for the creditors do so pass, may sue. 
 and the right to recover damages may pass though they are 
 unliquidated. 
 
 This principle is subject to exception. The right of action Not for a 
 does not pass where the damages are to be estimated by im- ™nal mj^ury, 
 mediate reference to pain felt by the bankrupt in respect of 
 his body, mind, or character, and without immediate reference 
 to his rights of property. Thus the trustee cannot sue for 
 breach of promise of marriage, seduction, defamation, battery, 
 injury to the person by negligence — as by not carrying safely, 
 not curing, not saving from imprisonment by process of law ; 
 even though some of these causes of actiou may be followed by 
 a consequential diminution of the personal estate, as where by 
 reason of a personal injury a man has been put to expense, or 
 has been prevented earning wages or subsistence ; or where 
 by the seduction the plaintiff has been put to expense (^) ; 
 also the right of action does not pass in respect of wages earned 
 by the bankrupt upon a hiring after the bankruptcy : nor can 
 the right of action be made to pass to the trustee in respect 
 of contracts uncompleted at the time of the bankruptcy, by 
 their adoption and completion thereof, where the personal 
 service of the bankrupt is of the essence of the contract (h). 
 But although a right of action for not marrying or not curing, JJ^^^'^^*^'"/^^ 
 in breach of an agreement to marry or cure, would not generally agreement to 
 pass to the trustee, a right to a sum of n-oney, whether ascer- P^>;^^°;^5[ 
 tained or not, expressly agreed to be paid in the event of ^f it. 
 
 (/) Beckham v. Drake, 8 M. & W. 846 ; 11 M. & W. 315 ; 2 11. L. Ca. 
 
 579. 
 
 {g) Per Parke, B., 2 H. L. Ca. 626. 
 {h) Per Erie, J., 2 H. L. Ca. 603, 604.
 
 534 
 
 ACTIONS BY TRUSTEES IN BANKEUrTCY. 
 
 Trespass to 
 land or goods 
 in his posses- 
 sion. 
 
 Nominal 
 damages. 
 
 When the 
 final loss to 
 the estate is 
 the criterion 
 of damages. 
 
 failing to many or cure, would pass. The agreement of the 
 parties that money shall be paid as compensation, makes the 
 right to recover the money a part of the personal estate of the 
 bankrupt, as much as a recovery, before the bankruptcy, of a 
 judgment in an action for an injury to the person or character 
 of the bankrupt, would do (/). 
 
 So rights of action for trespass to lands or goods in the 
 actual possession of a trader, do not pass to his trustee if he 
 becomes bankrupt, because those rights of action are given in 
 respect of the immediate violation of the possession of the 
 bankrupt, independently of his rights of property, and are an 
 extension of the protection given to his person, and the 
 primary personal injury to the bankrupt is the principal and 
 essential cause of action (Jc). But Wilde, C. J., in reference 
 to this doctrine, said, " I apprehend that if the trespasser has 
 done actual damage to the personal estate of the bankrupt, 
 as well as committed a trespass on his possession^ there is no 
 authority which decides that assignees may not maintain an 
 action in respect of the diminution in value, or injmy to the 
 chattels, that have passed to them under the bankruptcy " {I). 
 
 Although, however, damages cannot be given for injuries 
 which are merely personal to the bankrupt, it by no means 
 follows that actions can only be brought where substantial 
 damages can be recovered. Even where there is no actual 
 damage proved, or where the damage is merely nominal for 
 a breach of the contract, still if that is in respect either of 
 property or of a proprietary right, such as service or work and 
 labour, even in that case it passes {m). 
 
 Where the gist of the action is the loss to the estate, of 
 course the damages are measured by the loss which has accrued, 
 or is likely to accrue at the time of action brought. The bank- 
 rupt had contracted for the purchase of iron, and given bills for 
 the amount. The contract was broken by the vendors while 
 the bills were still current. Subsequently the purchaser became 
 
 (i) Per Maule, J., 2 H. L. Ca. 622. 
 
 (A-) Per Cresswell, J., 2 H. L. Ca. 613. 
 
 {I) Ibid., 634. As to whether the bankrupt can sue for special damages 
 resulting to himself, apart from the pecuniary damage resulting to his estate, 
 see Eogers v. Spence, 12 CI. & F. 700 : Hodysmi v. Sidney, L. R. 1 Ex. 313 ; 
 35 L. J. Ex. 182 : Morgan v. Stehle, L. R. 7 Q. B. 611. 
 
 {m) Per Lord Brougham, 2 H. L. Ca. 640.
 
 ACTIONS BY TRUSTEES IX BANKRUPTCY. CS5 
 
 bankrupt and the bills were dishonoured, and after such dis- 
 honour his assignees sued for the non-delivery of the iron. 
 At the time the contract was broken there was no difference 
 between the contract and market price. The plaintiffs claimed 
 as damages the whole value of the iron, on the ground that 
 their rights were the same as those of the bankrupt had been, 
 at the time the contract was broken. That at that time he 
 was entitled to recover the full value, since the bills were then 
 current, and while current operated as payment. The Court, 
 however, held that the parties were in the same situation as if 
 no bills had been given, or the contract had not been to pay by 
 bills. And, there being no diU'erence shown between the 
 market-price at the time of default and the contract price, the 
 vendees could only have recovered nominal damages ; no more, 
 therefore, could the assignees (n). In another case, H., before 
 his bankruptcy lent the defendant a phaeton on hire, and the 
 latter by his negligence injured it. The phaeton had been 
 hired by 11. himself from a third party, to whom it was sent 
 back, Avho repaired it and proved for the amount against the 
 estate. It was held that the assignees might sue for breach of the 
 contract to use the phaeton in a proper manner. Tindal, C. J., 
 said, " As to the question of damages, if II. before his bank- 
 ruptcy had done the necessary repairs himself, or had paid for 
 them when done, he would undoubtedly have been entitled to 
 the whole sum which was laid out ; or if his estate had actually 
 paid, or had been pro^■ed even likely to pay, any part of the 
 amount proved against it, such pro^^ortions would have been 
 the measure of the damages sustained by the bankrupt's estate. 
 But as there is no proof to this effect, the consequence appears 
 to us to be, that the plaintiffs are entitled to nominal damages 
 for the breach of a contract, on which they had the right to 
 sue, and where no actual damage is proved " (o). 
 
 On the other hand, where a right to recover a specific sum ^^'^^len it is 
 has once vested in the bankrupt, as by breach of an agreement 
 to apply money to a particular purpose, or to return the pro- 
 
 (n) Valpj/ V. OakeUy, 16 Q. B. 941 ; 20 L. J. Q. B. 380. So assignees 
 for value suing iu the bankrupt's name, but for their own benefit, have been 
 LelJ under siniihir circumstances to be only entitled to nominal damages : 
 Griffiths V. Perrii, 1 E. & E. 680 ; 28 L. J. Q. B. 2u4. 
 
 (o) Porter v. Vorley, 9 Bing. 93, 95 : disapproved of in AsJidoivn v. Inja- 
 meils, 5 Ex. D. 280.
 
 636 ACTIONS BY TEUSTEES IX BANKEUI'TCT. 
 
 ceeds of a bill, this right passes to the trustee unaflFected by 
 
 the subsequent bankruptcy ; and it makes no difference that 
 
 the money wrongfully retained by the defendant has in fact 
 
 been applied by him in discharge of a debt due to himself from 
 
 the bankrupt, so as to leave the whole amount of claims upon 
 
 the estate the same as it would have been had the money been 
 
 properly applied. The trustee is still entitled to recover the 
 
 entire amount originally due (p). A fortiori will he be entitled 
 
 where the act complained of has caused a diminution in the 
 
 bankrupt's estate ; as, for instance, where the bankrupt lodged 
 
 money with the defendants to apply in payment of his rent, 
 
 and in consequence of their not applying it as directed, the 
 
 landlord distrained his goods for the amount (q). So where the 
 
 bankrupt sold his business to the defendant on condition that 
 
 he should pay all trade debts, or arrange with the creditors, and 
 
 the defendant left certain debts unpaid, it was held that the 
 
 trustee in bankruptcy was entitled to recover the full amount of 
 
 the unpaid debts, as damages for the breach of contract (r). 
 
 Eight to sue r^]^Q trustee, as has been stated above, has no right to sue 
 
 for his ' 1 
 
 personal for the proceeds of the mere personal labour of the bankrupt, 
 
 labour. ^I^^g after his bankruptcy (s) ; though, if a person in his situa- 
 
 tion should gain a large sum of money or considerable effects, 
 then such money or effects would undoubtedly belong to his 
 trustee (f). But this rule only applies to what may be strictly 
 termed personal labour. Therefore, where the plaintiff was a 
 furniture broker, and had been employed by the defendant in 
 removing his goods, in the course of which employment the 
 plaintiff procured vans, supplied packing cases, and employed 
 five or six men in the packing, unpacking, and conveyance 
 of the property ; and likewise cleaned and repaired some 
 furniture, and found materials for this purpose ; it was held 
 that his claim on this account was not a matter of personal 
 labour, and that a payment to the assignees was good («). 
 
 (/>) Hill V.Smith, 12 M. & W. 618 : Jkhr v. Keighli/, 15 M. & W. 117. 
 See the facts of these cases, ante, pp. 112, 113. 
 
 (q) Bill V. Smith, ubi siqwa. 
 
 (r) Ashdnwn v. Jngamelh. 5 Kx. D. 280. 
 
 (.s) Per Lord Campheil, C. J., 2 H. L. Ca. 643 : ChifpcndaJex. Tomlin- 
 son, 4 Dougl. 318, 322, n. 
 
 (t) Per Buller, J., 7 East. 57, n. : pa- Lord Alvanley, Hesse v. Stevensoiiy 
 3 B. & P. 578. 
 
 («) Crofton V. Poole, 1 B. & Ad. 568.
 
 ACTIONS BY TRUSTEES IN BANKRUPTCY. 537 
 
 The same decision was given where it appeared that the 
 plaintiflF was a medical practitioner who had become bankrupt ; 
 afterwards by an arrangement with a friend who had purchased 
 his stock of medicines, he continued in possession of them on 
 credit, carrying on his business as before, and was supphed 
 with fresh medicines on credit. The debt was contracted 
 under these circumstances, the plaintiflT attending the defen- 
 dant, giving him the benefit of his skill, and furnishiug the 
 medicines which he thought necessary. The Court thought 
 this came within the case of Crofion v. PooJe, and that it would 
 be extending the principle laid down in Chippendale v. Tomlin- 
 son far beyond what was reasonable to apply it to such a state 
 of things {x). 
 
 III. Actions by Principal against Agent. 
 
 Whenever an a^ent violates his duties or obligations to his ^^^^" f." 
 ° ^ . action lies. 
 
 principal, whether it be by exceeding his authority or by posi- 
 tive misconduct, or by mere negligence (y), or omission in the 
 proper functions of his agency, or in any other manner, and 
 any loss or damage thereby falls on his principal, he is respon- 
 sible for it, and bound to make a full indemnity. In such 
 cases it is wholly immaterial whether the loss or damage be 
 direct to the property of the principal, or whether it arise 
 from the compensation which he has been obliged to make to 
 third parties in discharge of his liability to them, for the acts 
 or omissions of his agent. The loss or damage need not be 
 directly or immediately caused by the act which is done, or 
 which is omitted to be done. It will be sufficient if it lie fairly 
 attributabb to it, as a natural result, or a just consequence. 
 But it will not be sufficient if it be merely a remote conse- 
 quence, or an accidental mischief ; for in such a case, as in 
 many others, the maxim applies. Causa proxima, noii remota 
 specfatur. It must be a real loss or actual damage, and not 
 merely a probable or possible one. AVhere the breach of 
 duty is clear, it will, in the absence of all evidence of other 
 damage, be presumed that the party has sustained a nominal 
 damage («). For instance, where an agent was bribed to induce 
 
 (x) Mliott V. Clayton, 16 Q. B. 581. 
 
 (y) See a case where the negligence consisted in following an est.iblished 
 usage of the Stock Exchange to disregard the provisions of a statute ; yeilson 
 V. James, 9 Q. 15. D. 546 ; 51 L. J. Q. B. 369. 
 
 (z) Story, Agency, § 217 c.
 
 538 ACTIONS BY rRIXCIPAL AGAINST AGENT. 
 
 Ills principal to enter into a contract -which turned out to be 
 disadvantageous, it was held that the principal was not only 
 authorised to recover from the agent the bribe he had received, 
 but also to sue the agent and the briber, jointly or severally for 
 damage, representing the loss he had incurred by entering 
 into the contract, and that the sum recovered in respect of the 
 bribe could not be deducted from the damage, recoverable in 
 the later action (a). 
 
 The above principles, quoted from the work of an eminent 
 judge, are in fact equally applicable to any other case where 
 compensation is sought for a breach of contract, and present 
 an accurate summary of the general theory of damages. 
 Another rule, however, must be added, which we have seen 
 before applies also to the case of sheriffs and attornies (&), 
 viz., that even though a breach of contract is proved, still if 
 its performance could have been of no possible benefit to the 
 plaiutilF, and therefore its non-performance could have caused 
 iiim no possible injury, the action will altogether fail. A few 
 cases in illustration of each of these points will be sufficient 
 upon this branch of the subject. 
 When a loss If an agent should knowingly deposit goods in an improper 
 
 from his place, and a fire should accidentally take place, by which they 
 
 negligence. jne destroyed, he will be responsible for the loss (c). And so 
 Avhere a barge, upon which the plaintiff's goods were placed, 
 deviated from her course, and during the deviation a tempest 
 occurred, in consequence of which she was lost, it was held 
 that the owner of the l)arge was liable for the value (d). In 
 both of these cases the fire and the tempest might equally 
 have caused the loss had the defendant performed his duty. 
 But Tindal, C. J., stated the answer to the objection to be, 
 that no wrong-doer shall be allowed to qualify or apportion 
 his own wrong, and that as a loss has actually happened while 
 his wrongful act was in operation and force, and which is 
 attributable to his wrongful act, he cannot set up as an answer 
 
 (a) Mayor of Sal ford v. Lever, [1891] 1 Q. B. 168 ; 60 L. J. Q. B. 39. 
 
 (6) Ante, pp. 46U, 464. 
 
 ('■) Story, Agenc}-, § 218 ; Caffreij v. Darby. 6 Yes. 496. See L'dley v. 
 Douhleday, 7 Q. B. D. 510, a7ile, p. 23 ; and Iloyal Exchange Shippithj Co. 
 V. Dixon, 12 A. C. 11 ; 56 L. J. Q. B. 266, where goods improperly carried 
 on deck instead of under deck were jettisoned. 
 
 (d) Davis V. Garrett, 6 Bing. 716.
 
 ACTIONS BY PEINCirAL AGAINST AGENT. 539 
 
 to the action the bare possibility of a loss, if his wrongful act 
 had never been done. It might admit of a different construc- 
 tion, if he could show, not only that the same loss might have 
 happened, but that the same loss must have happened if the 
 act complained of had not been done. So where a party has 
 undertaken to insure goods, and has neglected to insure them 
 altogether {e), or has insured them so negligently, that the 
 plaintiff cannot recover against the underwriters, he will be 
 liable for all the loss that has actually happened (/). Accord- 
 ingly where a broker, employed to effect insurances, omitted to 
 communicate a material letter, in consequence of which the 
 assured failed in actions against some underwriters, and 
 offered the broker the defence of others ; and on his refusal, 
 without further consulting him, made restitution to others 
 "who had paid the losses without suit, it was held that the 
 assured might recover against the broker as well as the amount 
 of the losses so repaid, as of those which he had never re- 
 covered {g). xVnd so, where a party employed to buy goods of 
 a particular quality for another, directs an agent to execute the 
 commission, and he supplies goods of an inferior quality, in 
 consequence of which the first party is sued by his employer ; 
 the measure of damages in an action by him against the sub- 
 agent is the amount of damages and costs that he has been 
 forced to pay. If the goods have been refused by the party 
 who originally contracted to purchase them, the original agent 
 will be required to undertake to assign the goods to his sub- 
 agent, or to sell them and account to him for the produce {h). 
 A stockbroker, commissioned to sell shares, who words his 
 contract in such a manner that it is void by statute, is respon- 
 sible to his client for the full stipulated price of the shares, if 
 the buyer repudiates the contract, and it makes no difference 
 
 (f) Ex parte Batcman, 20 Jur. 265 ; 25 L. J. Uaukr. 19. 
 
 (/) Mallouijh V. Barber, 4 Camp. 150: Park w. Hammond, ibid. 344; 
 Holt, 86 ; S. C, 6 Taunt. 495. 
 
 [g) May dew v. Furrester, 5 Taunt. 615. 
 
 {h) Maiiiwarln'j v. Brandon, 8 Taunt. 202. A broker negotiating a sale 
 between seller and buyer, is not responsible for the quality, though employed 
 by the purchaser to ship the cargo ; ZicUchcnbart v. Alexander, 1 B. & S. 234 ; 
 30 L. J. Q. B. 254, Ex. Gh. Recently, where an agent improperly parted 
 with the possession of the goods of his principal, the latter recovered the 
 whole value. of the goods : iStcarine Co. v. Heintzmann, 17 C. B. N. S. 56 : 
 and see Matthews v. Discount Curjjoration, L. R. 4 G. P. 288.
 
 540 
 
 ACTIONS BY PRIXCirAL AGAINST AGENT. 
 
 Actual loss 
 furnishes 
 the measure 
 of damases. 
 
 that the broker has adopted the form of contract -R-hich was 
 customary at the Stock Exchange (^). 
 
 In all these cases the actual loss is the measure of damages, 
 and this measure may vary according to the time at which 
 the action is brought. This point was a good deal discussed 
 in a case, the facts of which have been very fully stated 
 in an earlier chapter {Ic). There, as will be seen by reference 
 to the statement given, the owners of the ship resisted the 
 action by the chai-terers, on the ground that the damages to 
 which they were entitled for breach of the agreement to insure, 
 entered into with them by the charterers, were a liquidated 
 amount, viz., the value of the freight Avhich was to have been 
 insured. In support of this doctrine, a judgment of Washing- 
 ton, J., was quoted. He says, " The law is clear, that if a 
 foreign merchant, who is in the habit of insuring for his cor- 
 respondent here, receives an order for making an insurance, 
 and neglects to do so, or does so differently from his orders, 
 or in an insufficient manner, he is answerable not for damages 
 merely, but as if he were himself the underwriter, and he is 
 of course entitled to the premium " (/). But Jervis, C. J., 
 said, " I think this is not the fair inference from what is there 
 stated. It is not laid down that the broker, if guilty of negli- 
 gence in effecting the insurance, becomes himself an insurer, 
 and liable to pay the exact amount for which the insurance was 
 or ought to have been efTected, less the amount of premium. 
 If so, what is the premium, which, as a matter of law, is to be 
 deducted ? It clearly must mean that the amount of the loss 
 is the reasonaUe, not the ascertained kgccl measure of damages 
 which the party is entitled to. That is, in effect, the principle 
 upon which the damages would be ascertained here. If the 
 broker has been guilty of negligence, it is but just and reason- 
 able that the customer should recover against him the amount 
 of the loss, deducting what would be paid for premiums ; in 
 other words, that he should be recompensed to the extent to 
 which he has been damnified by his agent's negligence. But it 
 is not a positive rule of law (m). And Maule, J., in a judgment 
 
 {{) NeiUon v. James, 9 Q. B. D. 546 ; 51 L. J. Q. B. 3G9. 
 
 {k) Charles v. Altin, 15 G. B. 46 ; 23 L. J. C. P. 197 ; ante, p. 277. 
 
 (I) De Tastett v. Crousillat, 2 Wash. C. C. R. 132. 
 
 (m) 15 C. B. at p. 63. Bee also as to the measure of damages being not
 
 ACTIONS BY TRINCIPAL AGAIXST AGENT- 541 
 
 from which I have quoted before (n), pointed out that the 
 action would lie at any moment after the negligence charged, 
 and that the measure of damages migiit be a continually vary- 
 ing sum, according to the facts that had occurred up to the 
 time the action was brought. For instance, where the plaintiff's 
 solicitor had failed to invest the principal's funds as he ought 
 to have done, it was held that he was bound to make good the 
 loss of intei-est, but that he was entitled to a set-off in respect 
 of a gain that had resulted from a fall in the price of consols 
 between the time when the investment should have been made 
 and the date of the order dealing with the matter (o). 
 
 The damages must of course be the necessary result of the Damages 
 
 defendant's neglect of duty. Therefore, where the plaintiff "^"'* ^^ *^^ 
 
 o . . . necessary 
 
 had been non-suited in an action against the underwriters, on result ; 
 
 the ground of concealment of material information, and claimed 
 in the suit against his agent to include the cost of the action 
 on the policy ; Lord Eldon said that there was no necessity to 
 bring that action to entitle the plaintiff to recover, and as it 
 did not appear that the action on the policy was brought by the 
 desire or with the concurrence of the present defendant, he 
 ought not to be charged with the cost of it (j^). 
 
 The damages must also be the proximate and natural result and not be 
 of the neglect. Therefore, where an agent is directed to invest °° ^®™° ^ 
 the funds of his principal in a particular stock, and he neglects 
 to do so, and the stock thereupon rises, the principal is entitled 
 to recover the enhanced value, as if the stock had been pur- 
 chased. So, if an agent improperly withholds the money of his 
 principal, he is liable for the ordinary interest of the country 
 where it ought to be paid, and the incidental expense of re- 
 mitting it, if it ought to be remitted. But he is not responsible 
 for remote consequences that may accrue, such as loss of credit, 
 or suspension of business by the principal, caused by the delay 
 in payment (g-). So, where an agent at Leghorn, having funds 
 of his principal in hand, was directed to invest part of them in 
 
 necessarily the whole amount of the insurance money, Cahill v. Dawson, 3 
 C. B. N. S. 106 ; 26 L. J. C. P. 253 ; ante, p. 278. 
 
 (?i) Ante, p. 277. 
 
 (o) Batten v. Wedgwood Coal and Iron Co., 31 Ch. D. 346 ; 55 L. J. Ch. 
 396. 
 
 (p) Seller V. Work, Marsh. Ins. 243, 4th ed. 
 
 \q) Short V. Skipwith, 1 Brock. 103 ; Stary, Agency, §§ 220, 221.
 
 542 ACTIONS BY PRIXCirAL AGAINST AGENT. 
 
 tiles and part in paper, and to ship the cargo for Havana ; he 
 invested the whole in paper, which on the ship's arrival, sold 
 at a loss, whereas the tiles would have realised a profit. The 
 defendant claimed to have the damages estimated at the 
 value of the money which ought to have been invested in 
 tiles at Leghorn, and not at the value they would have sold 
 for at Havana, The Court decided against him. They said 
 this measure would only be correct if the breach of contract con- 
 sisted in the nonpayment of the money, and not in the failure 
 to invest that sum in tiles. Speculative damages, dependent 
 on possible successive schemes, ought never to be given ; but 
 positive and direct loss, arising plainly and immediately from 
 the breach of orders, may be taken into the estimate. Thus, 
 in this case, an estimate of possible profits to be derived from 
 investments at the Havana, of the money resulting from the 
 sale of the tiles, taking into view a distinct operation, would 
 have been to transcend the proper limits which a jury ought to 
 respect ; but the actual value of the tiles themselves, at the 
 Havana, affords a reasonable standard for the estimation of the 
 damages (r). 
 
 In a recent case an attempt was made to assess the damages 
 in an action by principal against agent, as if the suit had been 
 one between purchaser and seller. The plaintiff instructed the 
 defendant to buy on his account, and ship to him from Hong- 
 Kong, a particular sort of opium, No such opium was pro- 
 curable. The defendants shipped an inferior opium as being 
 that which they had been commissioned to buy, and advised 
 their employer to that effect. He re-sold the opium to a third 
 party. On arrival the inferiority was discovered. The pur- 
 chaser made a claim upon the plaintiff for damages, which he 
 recovered. The plaintiff then sold the opium for whatever it 
 would fetch. It was contended that upon shipment of the 
 opium the relation of vendor and purchaser was established 
 between the defendant and the plaintiff ; that the latter was 
 entitled to be put in the same position as he would have been 
 in if the opium he ordered had been supplied, that is to say, 
 that he was entitled as damages to the difference between the 
 price paid for the inferior opium, and the market value of the 
 
 (r) Bell X. Cuvni»gham, 3 Peters, 69, 85.
 
 ACTIONS BY rrJNCirAL AGAINST AGENT. 543 
 
 superior opium. The Court held that the relation of princi]->al and 
 agent continued throughout the transaction ; that the plaintiff 
 was only entitled to the damage he had suffered by the defend- 
 ant's breach of duty, subject to the rule that such damage musi: 
 not be too remote ; that upon this footing he was entitled to be 
 repaid all the money he had expended in purchasing an article 
 which he had never ordered, and the damages which he had to 
 pay to the purchaser, and all incidental expenses to which he 
 had been put in the transaction (s). It is evident that upon 
 no view of the case could the plaintiff have recovered the 
 damages he claimed, since they would have put him in a much 
 better position than he would have been in if his instructions 
 had been carried out. He would then have paid for superior 
 opium, and his profit would have been the difference between 
 the two prices of such opium at Houg Kong and London, minus 
 all costs and charges. 
 
 Breach of contract, primA facie, involves a right to recover Nominal 
 nominal damages, even though no actual loss is proved, or '^^^'^^ses- 
 even suggested ; as, for instance, where the action was by a 
 customer against a banker for dishonouring his cheque (/). 
 In such a case, however, lately substantial damages were given 
 by a jury, and very fairly, because the injury to a man's credit 
 may not be the less real, because it was not capable of proof {v). 
 But when the agent can show that under no circumstances could When 
 any benefit to the principal have followed from obedience to I^J^'^y'^jl),"* t],at 
 his orders, and therefore that disobedience to them has produced no loss could 
 no real injury the action will fail. Therefore, if an agent is I'j^^^e *^^^^'^ 
 ordered to procure a policy of insurance for his principal, and 
 neglects to do it, and yet the policy if procured would not have 
 entitled the principal, in the events which have happened, to 
 recover the loss or damage, the agent may avail himself of that 
 as a complete defence. A fortiori, where the principal would 
 have sustained a loss or damage, if his orders had beeu com- 
 plied with. Accordingly, if the ship to be insured has deviated 
 from her voyage ; or the voyage or the insurance is illegal ; or 
 
 (s) Cmsahorjlou v. Glhh, 9 Q. B. D. 220 ; 11 Q. B. D. 797 ; 51 L. J. Q. B. 
 593 ; 52 L. J. Q. B. 538. 
 
 (t) Marzctti v. Williams, 1 B. & Ad. 415. And see Fray v. Voules, 
 1 E. & E. 839 ; 28 L. J. Q. B. 232 ; ante, p. 464. 
 
 (w) Rolin V. Steward, 14 C. B. 595.
 
 54i ACTIONS BY PRINCIPAL AGAINST AGENT. 
 
 the principal had no insurable interest ; or the voyage, as 
 described in the order, would not have covered the risk ; in all 
 such cases, the agent, though he has not fulfilled his orders, 
 will not be responsible (v). In estimating too the amount of 
 benefit which might flow from the defendant's obedience to his 
 orders, the Court will not take into consideration matters of 
 mere speculation. Therefore where the plaintiff directed the 
 defendant to effect an insurance on slaves, to which he was 
 entitled in lieu of wages as mate on board a ship, and the ship 
 was lost, it was held that he could not recover against the agent 
 for neglect to insure the slaves, as not being an insurable 
 interest. And it made no difference that in point of fact these 
 slaves were frequently the subject of insurance at Liverpool, 
 where the loss was always paid by the underwriters, without 
 disputing the question. The Court were clearly of opinion 
 that the plaintiff could not recover in this action, more 
 than he could have recovered in an aotiofi against the 
 underwriters {tv). 
 Agent bound Another ground of claim by principal against agent arises 
 
 out of the well-known rule of equity, that an agent cannot, 
 without the knowledge and consent of his principal, be ahowed 
 to niike any profit out of the matter of his agency beyond his 
 proper remuneration as agent. Consequently any profit that 
 he does so make, he is liable to account for, and hand over to 
 his principal (.»). And iu estiuiating the damages payable by 
 the agent, he will be treated as a wrong-doer, and a pre- 
 sumption may be made against him which could not be made 
 against a person who was not a wrong-doer. For instance, 
 the agent of a company agreed with the owner of a mine that 
 it should be sold to the company for a price partly in cash and 
 partly in paid-up shares. He made a private arrangement with 
 the agent to give him for his trouble 600 of the paid-up shares. 
 
 (v) Story, Agency, § 222. 
 
 (w) Webster v. De Tastet, 7 T. R. 157. 
 
 (x) Parker v. McKenna, L. 11. 10 Ch. 96 ; 44 L. J. Ch. 425. Hay's Case, 
 L. R. 10 Ch. 59 ; 44 L. J. Ch. 721 : Bagnall v. Carlton, 6 Ch. D. 371 ; 
 47 L. J. Ch. 30: Emmn Mine v. Grant, 11 Ch. D. 918 : Emma Aline v. 
 Lewis, 4 C. P. D. 396 ; 48 L. J. C. P. 257 : Whaley Bridge Co. v. Green, 
 5 Q. 15. D. 109 ; 49 L. J. Q. B. 326 : Boston Deep Sea Fishing Co. v. Ansell, 
 39 Ch. D. 33l» : Mayor of Salford v. Lever, [1891] 1 Q. B. 168. The prin- 
 cipal cannot follow any investment which the agent has made by means of his 
 wrongful gains, Lister v. Stubbs, 45 Ch. D. 1 ; and 59 L. J. Ch. 570. 
 
 to account for 
 profits
 
 ACTIONS BY PRINCIPAL AGAINST AGENT. 545 
 
 The company proved a failure, and 500 of the shares remained 
 in the agent's hands. It was held that he was liable to account 
 for these shares, and then the question arose at what value 
 they should be estimated. The Court held that as against a 
 wrong-doer it must be assumed that the shares could have been 
 disposed of for their full amount to solvent persons, who could 
 have paid up the calls. They, therefore, affirmed an order by 
 which the agent had been directed to pay over their fuU nominal 
 value (y). So where the promoter of a company had made a 
 present of shares to a director, it was held that he must account 
 for them to the company, and that they had the option of claim- 
 ing the shares themselves, or the highest value they had reached 
 while held by the director (s). 
 
 Where a principal instructs an agent to buy or sell goods for Sale by agent, 
 him, it is a fraud if the agent sells his own goods to the °Qj|jg%°7'^ 
 principal, or purchases them for himself, because the principal principal, 
 assumes that he is getting the advantage of his agent's skill and 
 intelligence in making for him the best possible bargain, and 
 this he obviously does not get if the agent is making a bargain 
 for himself. Such a transaction may therefore be set aside at the 
 option of the principal {a). Where, however, matters have gone 
 so far that the transaction cannot be undone, the principal is 
 driven to an action for damages, in which he will recover such 
 a sum as will recompense him for the loss actually caused by 
 the agent's fraud. What that loss is wtis discussed in the 
 following case. In August, 1875, the plaintiff, on the advice Daaiages where 
 of the defendant, instructed the latter to buy for him £310,000 se[\5de".°* ^^ 
 
 {y) McKmfs Case, 2 Ch. D. 1 ; 45 L. J. Gh. 148 : De Ravigne's Case, 5 
 Ch. D. 306 ; 46 L. J. Ch. 360 : Pearson's Case, 5 Ch. D. 336 ; 46 L. J. Gb. 
 339 : Nantyglo Co. v. Grave, 12 Ch. D. 738 : Mitcalfes Case, 13 Ch. D. 
 169 ; 49 L. J. Ch. 301. Directly the opposite presumption would be made in 
 an action against a director for fraudulent statements, whereby a person was 
 induced to take shares which had a value until the fraud was discovered, and 
 then became wortbless : Twycross v. Grant, 2 C. P. D. 46-* ; 46 L. J. C. P. 
 636. See Arkwright v. Newbold, 17 Ch. D. 301 ; 50 L. .J. Ch. 372 : Peekv. 
 Derry, 37 Ch. D. , at p. 591 : reversed on another point, 14 App Ga. 337 ; 
 58 L. J. Ch. 864. Representations which are designed to impose upon the 
 public will not support an action as between persons who were parties to the 
 fraud, and cognisant of the real state of the case : Ex parte Tayior, 14 Ch. 
 D. 390 ; 49 L. J. Ch. 457. 
 
 {z) Eden V. Ridsdales Ry. Co., 23 Q. B. 368 ; 58 L. J. Q. B. 579. See as 
 to the allowances to be made to a promoter of a company for secret profits 
 made by him, Lydiiey d; Wigpool, Co. v. Bird, 33 Cii. D. 85 ; 55 L. J. Gh. 
 875. 
 
 (a) Rothschild v. Broohnan, 5 Bligh. N. S. 165 ; affirming 3 Sim, 153. 
 
 M.D. N N
 
 5-16 ACTIONS EY ITJKCIPAL AGAINST AGENT. 
 
 worth of rupee paper. The defendant transferred to the plaintiff 
 his own paper which he professed to have bought in the usual 
 way on the Stock Exchange. Eupee paper began to fall in 
 value, and in March, 187G, the plaintiff sold it at a loss of 
 £43,000. In an action for a fraudulent misrepresentation the 
 original Court awarded the full sum of £43,000 as damages. 
 On appeal the verdict was set aside as being excessive in amount. 
 Bramwell, L. J., compared the case to that of an animal sold 
 with a fraudulent warranty, where the damages are the differ- 
 ence between the price at which it was purchased, and that at 
 which it might have been sold. " Here the question is, what 
 could the plaintiff have obtained if he had re-sold the rupee 
 paper which he had been induced to purchase by the fraud of 
 the defendant. It was for the insolvent to consider whether 
 he would sell it or retain it. The retention of it was his own 
 voluntary act. If he elected to remain owner after the rupee 
 paper began to fall in price, his loss was not owing simply to 
 his having purchased it, but to his having purchased it and re- 
 tained it. When I say that his loss is to be estimated by the 
 price which he might have obtained upon a re-sale, I mean that 
 he is entitled to include the commissions which he would have 
 to pay upon the sale and the re-sale ; further, he would not 
 have been bound to re-sell hastily and unadvisedly, but he 
 ought to have time allowed him to ascertain what his loss really 
 was. Upon these principles the amount must be calculated at 
 which the damages are to stand (b). 
 Cape Breton The same question arose in a different form in a later 
 
 ompeui//. ^^gg ^^^^ There F., in 1871, purchased a coal mine for 12,000/., 
 
 in partnership with four others. In 1873 he and one of his 
 partners became directors in the Cape Breton Co., to which 
 they, through a nominal vendor, sold the coal mine for 42,000/., 
 the fact that it was their property being, as it was said, concealed 
 from the company. It was admitted that such a transaction 
 might have been set aside by the company. This, however, 
 was impossible at the time of the application against P., as 
 before any discovery of the fraud the company went into liqui- 
 
 {h) WadcMl v. Bloclccy, 4 Q. B. D. 678 ; 48 L. J. Q. B. 517. 
 
 (c) In re Cape Breton Company, 26 Ch. D. 221 ; affiimed 29 Ch. D. 795 : 
 Cavendish Bentinck v. Fenn, 12 App. Ca. 652 ; 57 L. J. Cb. 552 ; followed 
 Ladyuell Mining Co. v. Brookes, 35 Ch. D. 400 ; 56 L. J. Ch. 684.
 
 ACTIONS BY PRINCIPAL AGAINST AGENT. 547 
 
 dation, and the mine was sold. The sale took place under a 
 scheme of arrangement passed by the shareholders and sanc- 
 tioned by the Court, and when the sale took place the share- 
 holders knew of F.'s interest in the property, and decided not 
 to repudiate the purchase. In 1884 a creditor and contributory 
 of the company took out a summons against F. under s. 165 of 
 the Companies Act, 18G2, for a misfeasance by reason of the sale 
 of the property to the company. It was assumed that under this 
 section the Court could order the director to payauy sum which 
 could have been recovered from him by the company in an 
 action. It was contended on behalf of the creditor, that F. 
 was liable to account to the company for the profit he had made 
 by the sale, that is the diflference between 12,000/. and 42,000Z. ; 
 or at all events to the difference between 42,000?. and whatever 
 was the real market value of the property at the time. It was 
 held by Mr. Justice Pearson, that the only relief which could 
 have been given would have been to rescind the sale, and as this 
 could not now be done, neither of the sums suggested could be 
 awarded as damages. If F. had originally purchased the pro- 
 perty as trustee for the company, then his resale at an advanced 
 price would have been a mere nullity, and he could not have re- 
 tained any of the profits on such resale. But admittedly in 
 1871 F. stood in no fiduciary relation to the company. As to 
 the alternative claim, Mr. Justice Pearson said : " I am not 
 aware that F. and his partners were bound to sell at the market 
 price, and I cannot understand why this Court is to take the 
 market price or any other pi'ice. A vendor has a right to stipu- 
 late for what price he pleases. It is for the purchaser to say 
 whether he will give that price or not. Why, therefore, I should 
 say that in the year 1873 the vendors of this property were 
 bound to sell at the market price, I do not know." 
 
 This decision was affirmed on appeal by Lords Justices 
 Cotton and Fry {dissentiente Bowen, L. J.). They held that 
 the sale by the liquidator was a sale by the company, and bound 
 the contributory who was taking action against F. The com- 
 pany, therefore, with full knowledge of the facts which would 
 entitle them to rescind the contract, elected to hold by it. This, 
 in the opinion of the majority of the Court, put an end to any 
 further claim against the agent. Damages could not be calcu- 
 lated on the difl'erence between the purchasing and selling price, 
 
 N N 2
 
 548 ACTIONS BY AGENT AGAINST PRINCIPAL. 
 
 because at the date of the purchase F. -was not a trustee for the 
 compauy. Nor could a claim be made for any profits clandes- 
 tinely retained by the agent at the time of the sale as the differ- 
 ence between the selling price and the market price, because 
 the voluntary ratification of the purchase by the principal was 
 equivalent to a new sale by the agent to the principal, after the 
 relation between them had ceased. The profits, if any, made 
 by F. had not been made clandestinely or surreptitiously, as 
 they had not arisen from the original transaction, but from the 
 adoption of it by the principal. They also drew a distinction 
 between the case of an agent who is directed to go into the 
 market to buy goods, but who actually sells his own, and the 
 case under consideration, where a contract was entered into for 
 a specific property, which could only be had on its owner's 
 terms. On the other hand Bowen, L. J., thought that the 
 right to retain the subject contracted for was different from 
 the right to compel the agent to hand over profits improperly 
 retained by him. He likened it to the case of an action on a 
 fraudulent warranty, where the purchaser may retain the chattel, 
 and sue for damages for the difference between its actual value 
 and that which was untruly represented. He thought, there- 
 fore, that F. was liable to repay the difference between the sale 
 price of the property, and its market value at the time of the 
 sale. 
 
 The decision was affirmed in the House of Lords (//) but on 
 different grounds. The questions of law on which the judges 
 had differed in the Court of Appeal were left undecided. Their 
 lordships considered that it was not made out that there was 
 any concealment of his interest by F., nor that he had made 
 any profit by the sale to the compauy beyond what he could 
 have obtained in the open market, and that the contributory 
 who moved in the matter had really no interest in the dispute. 
 
 IV. Actions by Agent against Principal. 
 
 Actions of this sort are generally brought by the agent for 
 his remuneration, and seldom raise any special question as to 
 damages. There are, however, two matters which may be 
 referred to with advantage. They are, claims by an agent, 
 employed to sell for a commission, and claims for an indemnity 
 
 (d) Cavendish Bentinck v. Fenn, 12 App. Ca. 652; and 57 L. J. Ch. 652.
 
 ACTIONS BY AGENT AGAINST PRINCIPAL. 549 
 
 in consequence of loss incurred by carrying out the instructions 
 of his princiiDal. 
 
 The theory of a sale by commission is, that the agent is only Commission on 
 paid for success. If no sale is effected, or if it is effected 
 without his intervention (e), he gets nothing. This is the 
 established rule by usage in the case of ship-brokers and house- 
 agents (/). In other cases, where the rule is not absolutely so 
 settled, the presumption would bs to the same effect, unless 
 there were something in the special agreement to lead to a 
 contrary conclusion {g). On the other hand, if the sale has 
 been effected by means of the agent, he is entitled to his full 
 commission, though he has not been put to either trouble or 
 expense (h). 
 
 The cases in which difficulty has arisen, have been those in Revocation of 
 
 , , authority. 
 
 which the agent, after incurrmg trouble or expense, has been 
 
 prevented, by a revocation of his authority, from proceeding to 
 earn his commission by effecting a sale. It is quite settled 
 that a principal may at any time before a sale recall the 
 agent's authority, and that the interest which the agent has 
 in effecting a sale, is not such an interest as prevents such a 
 revocation (/). Where there has been a revocation, in the 
 case of house-agents or ship-brokers, any trouble or expense 
 they have previously incurred goes for nothuig, and in the 
 absence of a special contract, gives them no claim against their 
 principal for reimbursement. But in other cases, an authority 
 to sell cannot in general be revoked without reimbursing the 
 party to whom it is given for the labour he has bestowed, or the 
 expense he has been put to. But this right must always depend 
 upon the terms of the contract ; and though the general employ- 
 ment may carry with it the right of revocation upon payment 
 for what has been done under it, yet it is perfectly possible 
 that there may be a contract of employment of a qualified 
 
 {e) See as to what amounts to intervention, Mansell v. Clements, L. R. 9 
 C. P. 139. 
 
 (/) Read v. Rann, 10 B. & C. 433: Simpsonv. Lamb, 17 C. B. 603, 616 ; 
 125 L. J. C. P. 113, 116. 
 
 ig) See Alder v. Boyle, 4 C. B. 635 ; 16 L. J. C. P. 232. 
 
 (h) MamelL v. Clements, L. R. 9 C. P. 139. 
 
 {i) Smart v. Sandars, 5 C. B. 895 ; 17 L. J. C. P. 2,^8 : Taplin v. 
 Florence, 10 C. B. 744 ; 20 L. J. C. P. 137 : Campanari v. Woodburn, 15 
 C. B. 4U0 ; 24 L. J. C. P. 13.
 
 550 
 
 ACTIONS BY AGEXT AGAINST TRINCIPAL. 
 
 nature to the effect that if the work be not completed there is 
 not to be any payment {h). 
 Agent entitled As to an agent's right to an indemnity, the rule is, that if 
 to incemnity, ^^^ agent has incurred losses or damages in the course of trans- 
 acting the business of his agency, or in following the instruc- 
 tions of his principal, he will be entitled to full compensation 
 therefor (?). But in order to entitle an agent to recover from 
 his principal under such circumstances, he must show, first 
 that the loss arose from the fact of his agency ; secondly, that 
 he was acting within the scope of his authority ; and, thirdly, 
 that the loss was not attributable to any fault or laches on his 
 part (jn). Consequently, where an agent, acting under the 
 orders of his principal, has made a contract which his principal 
 has not enabled him to carry out, or has innocently warranted 
 goods, which do not answer the warranty, or has sold goods 
 which turn out to be the property of a third person, if he is 
 sued, he may recover from his principal the damages and costs 
 which he has been compelled to pay, or any other loss he has 
 necessarily incurred {n). But if the losses or damage are 
 casual, accidental, oblique, or remote, the principal is not 
 liable. The agency must be the cause, and not merely the 
 occasion of the loss, to found a just claim for reimbursement (oj. 
 For instance, a stockbroker bought shares for his j^rincipal for 
 the 15th July, and on that day, by his principal's orders, 
 carried over the transaction to the next settling day. The 
 result was, that he became liable to pay the difference of price 
 according to the rates of the 15th of July. Subsequently, the 
 stockbroker became insolvent. The consequence was, that all 
 his transactions were closed, and he became liable to pay the 
 difference of price calculated at the date of closing. It was 
 held that the principal was liable to pay the first difference, 
 but not the second, because that loss was brought on neither by 
 the orders nor by the default of his principal, but by his own 
 
 (h) Simpson v. Lamb, 17 C. B. G03 ; 25 L. J. C. P. 113. 
 
 {/) Story, Agency, § 339. See Huod v. Stallybrass, 3 App. Cas. 880. 
 
 (m) Per Right Hon. T. Pemberton Leigh, Frixionc v. Tagliaferro, 10 Moo. 
 P. C. 175, 1%. 
 
 [n) Frixione v. Tagliaferro, uhi suj). : Southern v. Bo7d, Cro. Jac. 468 : 
 Adamson v. Jarvis, 4 Bing. 66 : Lace]/ v. Bill, L. R. 8 Ch. 921 ; L. R. 18 
 Eq. 182 ; 43 L. J. Ch. 551. 
 
 (o) Story, Agency, § 341.
 
 ACTIONS BY AGENT AGAINST PRINCIPAL. 551 
 
 insolvency, for which his principal was not accountable. It 
 was something completely collateral to the business on which 
 his principal had employed him (p). Nor could an agent 
 recover damages to which he had been put in consequence of 
 warranting goods without authority to do so (q). Nor where 
 he had incurred unnecessary expense by carelessness or mistake 
 in law (r). 
 
 An agent is not entitled to an indemnity in respect of any act No imlemnity 
 done by him, in pursuance of the instructions of his principal, °' 
 
 which is illegal at Common Law or by statute (.s). There are, 
 however, cases in which a statute does not make an act illegal, 
 but declares that it shall be null and void, and that no action 
 shall be brought to enforce it. In such a case, if a principal 
 directs his agent to do an act which comes within the statute, 
 and if the agent, before his authority is revoked, incurs a liability 
 by carrying out his instructions, the principal is bound to in- 
 demnify him. For instance, the defendant employed a commis- 
 sion agent to bet on his behalf. The usage of the turf is that 
 a commission agent makes the bets in his own name. Under 
 the Gaming Act (8 & 9 Vict. c. lO'J, s. 18), he could not be 
 compelled to pay a bet which he had lost, but if he refused to 
 pay his losings he would be treated as a defaulter, and prevented 
 carrying on his business as a turf agent. In the particular 
 case he made the bet in his own name and lost it. The prin- 
 cipal then repudiated the transaction, but the agent paid the 
 bet and sued his principal. It was held that as soon as he 
 made the bet he incurred a liability, enforceable not at law but by 
 way of customary consequences, against which his principal was 
 bound to indemnify him (/). The special application of this rule 
 to bets made on commission is now forbidden by the Gaming 
 Act, 18'J2, but the rule itself has been followed in later cases 
 arising out of the failure of the Oriental Bank in 1884. An 
 act known as Leeming's Act (30 & 31 Vict. c. 29) directs that 
 contracts for the purchase of shares shall be null and void, 
 unless certain formalities are complied with. These formalities 
 have been found to be impracticable from a business poiuj of 
 
 (p) Duncan v. Hill, L. R. 8 Ex. 242 ; 42 L. J. Ex. 179. 
 
 (q) Southern v. How, Cio. Jac. 468. 
 
 (r) Capp V. Topham, 6 East. 392. 
 
 (s) Josephs V. Pebrcr, ?, B. <fe G. 639. 
 
 (() Head V. Anderson, 13 Q. B. D. 779 ; 53 L. J. Q. B. 532.
 
 552 ACTIONS BY AGENT AGAINST PRINCIPAL. 
 
 view, and are never attended to on the Stock Exchange. The 
 defendant employed the plaintiif, a stockbroker, to purchase for 
 him Oriental Bank shares. The plaintiff did so, and by the 
 usage of the Stock Exchange made himself liable to complete 
 the transaction, on pain of being treated as a defaulter. As 
 usual the provisions of Leeming's Act were disregarded. The 
 defendant swore that he had never heard of Leeming's Act till 
 after the purchase, but he had had frequent transactions through 
 the plaintiff in which it had been disregarded. The bank 
 stopped payment immediately after the purchase, and the 
 defendant at once repudiated the contract under the provisions 
 of the Act. The plaintiff proceeded to carry out the purchase, 
 and then sued the defendant. It was held that the defendant 
 had authorised him to proceed in the manner he had done, and 
 was bound to indemnify him against the consequences, notwith- 
 standing the provisions of the Act (u). A contrary decision 
 was given in a very similar case, where it was found as a fact 
 that the principal did not know^ of Leeming's Act, or of any 
 custom of the Stock Exchange to enforce transactions in which 
 it had been disregarded, and where there had been no course of 
 dealing, such as existed in the last case, from which it could be 
 inferred that he had in fi\ct authorised the stockbroker to act 
 in violation of its provisions. The Court said that a person 
 who employs an agent cannot be held to authorise him to act 
 in accordance with usages of which he is in fact ignorant, where 
 such usages are unreasonable or illegal (x). If, however, 
 the principal ratified the transaction, after knowing the flaw 
 which would have entitled him to repudiate it, he is bound to 
 carry it out for the benefit of the agent and all other parties 
 concerned (y). 
 
 (m) Seymour v. Bridge, 14 Q. B. D. 460 ; 54 L. J. Q. B. 347. It 
 may be doubted whetlier the facts of this case warranted the inference that 
 was drawn from them. But, assuming the inference to be sound, the legal 
 consequence would seem to be justified ; see ^C7' Bo wen, L. J., at 15 Q. B. D. , 
 p. 398. 
 
 {x) Perry v. Barnett, 15 Q. B. D. 388 ; 54 L. J. Q. B. 446. 
 
 [y) Loring v. Davis, 32 Ch. D. 625 ; 55 L. J. Ch. 725.
 
 CHAPTER XVIII. 
 
 PLEADING SPECIAL DAMAGE. 
 
 We may now pass from the principles which regulate the 
 measure of damages, to the rules of pleading and practice in 
 relation to them. This part of the subject naturally resolves 
 itself into three heads, which I propose to consider in the three 
 remaining chapters. The first has regard to what is required 
 of the plaintiff", in stating and specifying the grounds of his 
 claim. The second relates to the mode in which the jury must 
 proceed in assessing damages under the various circumstances 
 of the case ; the consequences of any error into which they 
 may fall, and the manner in which it may be rectified. Under 
 the third head, I shall examine the power which the Court pos- 
 sesses to guide, alter, or review the verdict, particularly as to 
 its amount. 
 
 Special damage must always be expressly averred, and Special damage 
 proved, when it is so much the gist of the action, that without alleged when 
 it no suit could be maintained ; as, for instance, in an action it is the 
 against a returning officer at an election, for holding a scrutiny action, 
 contrary to statute G & 7 Vict. c. 18, s. 82, whereby the plain- 
 tiff" was delayed and hindered in his right of voting («) : or 
 in an action by a master for the beating of his servant (&) : or 
 by a relation for the seduction of a female, per quod servifmm 
 amisit (c) : or in cases of slander, where the words would not 
 of themselves be actionable {d) : or for a matter of general 
 nuisance or injury to the entire public (e). In such a case as 
 that last mentioned, the damage must be an actual tangible one 
 
 (a) Pryce v. Belcher, 3 C. B. 58. 
 
 (b) Mary^s case, 9 Rep. 113. 
 
 (c) See ante, p. 487. 
 
 \d) Malachy v. Soper, 3 B. N. C. 371. 
 
 (e) Dohson v. Blackmore, 9 Q. B. 991 : Dimes v. Petley, 15 Q. B. 276.
 
 554 
 
 PLEADING SPECIAL DAMAGE. 
 
 Particular 
 instances of 
 ilamase. 
 
 Special damage 
 cannot be 
 proved unless 
 lai.l. 
 
 to the plaintiff in reference to his existing interest. Therefore, 
 'R'here the action was for fixing an obstruction in a public 
 navigable river, and impeding the access to a house abutting 
 upon it, it was held not to be a sufficient allegation of special 
 damage to say, that the plaintiff was reversioner, and had a 
 right to the free navigation of the river for the enjoyment 
 of the premises by his tenants, and so was injured in his rever- 
 sionary interest. The Court said, " If, indeed, an obstruction 
 of a public road appeared to be of a permanent nature, or 
 professed, either by notice affixed, or in any other way, to 
 deny the public right, and so led to an opinion that no road 
 was there, the value of the house might be lowered in public 
 estimation, and so pecuniary loss might follow, for which 
 an action would lie. But that is a peculiar state of things, 
 which ought to be distinctly set forth, and by no means arises 
 from the naked fact that while the plaintiff's house was in the 
 hands of his tenant, a public road had been obstructed by the 
 defendant " (/). 
 
 It is not, liowever, necessary to state or establish particular 
 instances of damage. Therefore a declaration for obstructing 
 the access to the plaintiff's house, whereby divers persons who 
 would otherwise have come to the house and taken refresh- 
 ment there were prevented, was held sufficient without naming 
 any one {g). And so in an action for fraudulently using the 
 plaintiff's trade marks it was considered sufficient, at all events 
 after verdict, to allege generally that " by means of the fraud 
 the plaintiff was deprived of the sale of divers large quantities 
 of goods, and lost the profits that otherwise would have accrued 
 to him therefrom " (A). 
 
 In all other cases, whether the action be on a contract or in 
 tort, if the facts involve a legal injury, no actual damage need 
 be stated («'). But then no damages, beyond those which the 
 law infers, can be recovered for, unless they are specially 
 stated. Under the old allegation of alia enormia in trespass, 
 
 ( '' ) 9 Q. B. 1004. See ante, p. 49G. 
 
 (g) Rose v. Groves, 5 M. & G. 613. 
 
 (h) Rodger s v. Nowill, 5 C. B. 109. 
 
 ^i) See ante, pp. 4 — 7. But if the plaintiff cliooses to state facts affecting 
 the damages he can do so, unless the statement isscan.lalous or embarrassing ; 
 MiUiiujton v. Loring, 6 Q. B. D, 190.
 
 TLEADING SPECIAL DAMAGE. 555 
 
 nothing could be given in evidence which could he stated with 
 decency in the declaration (Jc). Accordingly, in an action of 
 trespass and false imprisonment, the plaintiff' was not allowed, 
 without a special allegation, to prove that he was stinted in 
 his allowance of food during his detention (/), or that his 
 health had suffered from the confinement (m), or that he had 
 been remanded by a magistrate («). And so in an action 
 for taking goods, where money had been paid to recover them, 
 the payment ought to be alleged as special damage (o). A 
 fortiori, matter which itself would be a distinct ground of action 
 must be specially averred. Hence in an action on the case for 
 an excessive distress, in which no mention occurred of any sale 
 of the goods, the plaintiff* was only allowed to recover damages 
 in respect of the detention up to the time of the sale, and not 
 in respect of the sale, though it appeared on the trial that the 
 goods were sold for less than their real value ( p). In one old 
 case Lord Eaymond took a distinction upon this point in actions 
 of slander, between words which are actionable in themselves, 
 and those which are only actionable with special damage. In 
 the latter case, he said that evidence of special damage is 
 allowed, though the particular instances of such damage are 
 not specified in the declaration ; bat in the former case, parti- 
 cular instan^ces of special damage shall not be given in evidence, 
 unless stated in the declaration (q) ; but this distinction is no 
 longer recognised (r). 
 
 So in trover, special damage, to be recoverable, must be 
 specially laid (s). In contracts, too, there are certain damages 
 which the law will presume ; as for instance, in an action for 
 not delivering goods, that the plaintiff' had to buy others at a 
 loss ; or in an action on a warranty, that the article really 
 given was inferior to that which it was warranted to be. The 
 extent of the loss must be proved ; but no notice need be given 
 of the species of loss which will be set up. But it is different 
 
 (Ic) Sippora V. Basset, 1 Sid. 225. 
 
 (I) Loioden v. Goodrich, Peake, 46. 
 
 (ra) Pettit v. Addinfjton, Peake, 62. 
 
 («) Holtun V. Lotum, 6 C. & P. 726. 
 
 (o) Cowper, 418. 
 
 \p) Thoynpson v. Wood, 4. Q. B. 493. 
 
 (^1 Browning v. Nexvman, 1 Stra. 666. 
 
 (V) 1 Wms. Saund. 243 d ; 1 Wms. Notes to Saund. 322. 
 
 (s) See ante, p. 393.
 
 556 
 
 PLEADIISG SPECIAL DAMAGE. 
 
 Statement of 
 special damage 
 must be as 
 full as the 
 case will 
 admit of. 
 
 Distinction 
 bet\\een 
 particular and 
 special 
 damage. 
 
 where the injury complained of is of a merely secondary and 
 consequential damage. As, for instance, that the plaintiff was 
 sued for selling the same animal again, with a similar war- 
 ranty {t) ; or that he incurred expense in investigating the title 
 of the defendant to land, which the latter had contracted to 
 seh, but could not, for want of title {ii). 
 
 As the object of stating special damage is to let the de- 
 fendant know what charges he must prepare to meet, the state- 
 ment must always be as full and specific as the facts will admit 
 of. iVccordingly, in an action for an irregular distress, whereby 
 the plaintiff had lost divers lodgers, without naming any, Lord 
 Ellenborough rejected evidence that he had in fact lost one, 
 because the name was not alleged, observing that the miraber 
 was not so great as to excuse a specific description on the score 
 of inconvenience (x). The same reason fairly applied to a 
 general statement that a party had, in consequence of the 
 alleged wrong, lost several suitors (?/), or the sale of his 
 lands (z) ; but the rule was seemingly carried beyond just 
 limits, when it was said that an allegation that a party had lost 
 divers customers was insufficient, because they ought to have 
 been named (a). There was much more common sense in a 
 later decision. The minister of a dissenting congregation 
 alleged, that in consequence of the slanderous words of the 
 defendant, " The said persons frequenting the said chapel have 
 wliolly refused to permit him to preach, and have withdrawn 
 from him their countenance and support, and have discon- 
 tinued giving him the gains and profits which they had 
 usually given, and would otherwise have given." Lord Kenyon 
 held this sufficient, asking, how could he have stated the 
 names of all his congregation ? {!>). The question would have 
 been quite as difficult to answer, had it been asked in the 
 former case. 
 
 The real distinction was that taken by Cresswell, J. (r), 
 between particular and special damage, where he said, " In 
 
 (t) Lncis V. Ptakc, 7 Taunt. 153. 
 
 (m) Ilochjes V. Enrl of Litchfield, 1 Bing. N. C. 492. 
 
 {x) Westwood V. C'oicne, 1 St. 172. 
 
 \y) Barnes v. Prndlin, 1 Sid. 396. 
 
 (z) Lorce v. Harew(wd, Sir W. .Ton. 196. 
 
 (a) Hunt V. Jones, Cro. Jac. 499 ; 1 Roll, Abr. 58 ; Bull. N. P. 7. 
 
 (6) Hartley v. Herring, 8 T. R. 130. 
 
 (c) Eose V. Groves, 5 M. & G. 618.
 
 PLEADING SPECIAL DAMAGE. 557 
 
 an action for slandering a man in his trade, when the declara- 
 tion alleges that he thereby lost his trade, he may show a 
 general damage to his trade, though he cannot give evidence 
 of particular instances" (d). The great additional weight 
 which the jury would lay upon one instance specifically 
 proved, makes it only fair that notice should be given that 
 the proof will be attempted, A mere general loss may well 
 be announced in the same general way as that in which 
 alone it can be proved. An action was brought for not 
 performing a contract to let a house, whereby plaintiff had 
 sustained loss, and been obliged to hire other premises at great 
 cost and expense for rent and charges. It appeared that the 
 premises, which were in Regent Street, had been taken for the 
 millinery business, for which they were well suited, and that 
 the plaintiff, not being suffered to occupy them, had sustained 
 considerable loss from the passing by of the profitable season 
 of the year. It was held that this evidence was admissible ; 
 Richards, C. B., said there was, in fact, no special damage as 
 such proved. The object of the witness's testimony was to 
 show that the plaintiff had suffered inconvenience. And 
 Graham, B., remarked, that loss of customers, and general 
 damage occasioned thereby, might have been given in evidence 
 under the declaration, for it charged general loss, without 
 specifying any particular individual whose custom had been 
 lost ; and it was competent to the plaintiff to show certain 
 damage sustained by breach of the agreement, without stating 
 his loss more specifically in the declaration (e). 
 
 After a review of the previous cases the law has now been [ 
 stated by the Court of Appeal to be, that in actions on the 
 case where the damage actually done is the gist of the action, 
 the character of the acts themselves which produce the damage, 
 and the circumstances under which these acts are dons, must 
 regulate the degree of certainty and particularity with which the 
 damage ought to be stated and proved. As much certainty 
 and particularity must be insisted on both in pleading and proof 
 of damages as is reasonable, having regard to the circumstances 
 
 (d) And see Ashley v. Harrison, 1 Esp. 48 ; cmtc, p. 474 : Evans v. 
 Harries, 1 H. & N. 251 ; ante, p. 475 : and M'Loughlin v. Welsh, 10 Ir. 
 L. K. 19. 
 
 (e) Ward v. Smith, 11 Price, 19.
 
 558 
 
 PLEADING SPECIAL DAMAGE. 
 
 Damages mu.st 
 be stated 
 correctly. 
 
 Debt. 
 
 Interroga- 
 tories. 
 
 and to the nature of the acts themselves by which the damage 
 is done (/). 
 
 The same principle which requires particularity of state- 
 ment, also calls for accuracy of allegation. An action for a 
 nuisance, resulting from an obstruction to a watercourse, 
 stated that it was caused by the erection of a mound of earth 
 by the defendants. It appeared that the mound of earth 
 would not, of itself, have obstructed the water, but that it 
 crumbled away and was trodden down, so as to cause the 
 effect. It was held that the evidence did not support the 
 declai-ation, as it alleged an immediate act of the defendants, 
 whereas a consequential injury was all that was proved (^). 
 And so in an action for false imprisonment, where it was laid 
 as special damage that plaintiff had been forced to pay a 
 large sum of money for costs, and the evidence was that he 
 had employed an attorney, but had not paid him ; it was held 
 that the damage was not proved. But the Court said, that 
 as to the money which the attorney had actually laid out for 
 him, the averment was sufficient, for a man might well say that 
 he had been forced to pay, that which his agent had been forced 
 to pay for him. In respect of the money advanced for him, he 
 was in the same situation as if he had borrowed it to pay it 
 over {h). 
 
 Of course, if properly claimed, damages in respect of the 
 legal liability to the attorney could have been recovered though 
 his bill had not been paid (i). 
 
 Accuracy of allegation is of less importance now when 
 amendments are allowed in all cases where the opposite party 
 would not be unjustly prejudiced. 
 
 The mode of pleading with a view to damages in cases 
 within the provisions of 8 & 9 "W. III. c. 11, s. 8, has been 
 noticed in the chapter on Debt (Ic). 
 
 Interrogatories as to damages have been allowed where the 
 defendant desired to pay money into Court (l). And where in 
 
 (/) Fcatcliffe v. Evans, [1892] 2 Q. B., at p. 532 ; 61 L. J. Q. B. 535. 
 (g) Fitzsimons v. Inglis, 5 Taunt. 534. 
 
 (A) Pritchet v. Boevey, 1 C. & M. 775 : Jo7ics v. Lewis, 9 Dowl. 143. 
 (i) Ante, p. 108. 
 {k) Ante, p. 237. 
 
 (/) Home V. Hough, L. R. 9 C. P. 135 ; 43 L. J. C. P. 70 : Clarke v. 
 Bennett, 32 W. 11. 550 : see Uodsoll v. Taylor, ante, p. 4S8. For a case
 
 PLEADING SPECIAL DAMAGE. 559 
 
 actions for clefamatioQ the defendant gives a notice under 
 Order 3G, Eule 37, of matters as to which he intends to give 
 evidence in mitigation of damages (m), he may interrogate the 
 plaintiff as to the matters referred to (»). 
 
 where they were disallowed, see Jourdain v. Palmer, L. R. 1 Ex. 102 ; 35 
 L. J. Ex. 69. 
 
 (m) See ante, p. 481. 
 
 in) Scaife v. Keinp, [1892] 2 Q. B, 319 ; and 61 L. J. Q. B. 515.
 
 confession. 
 
 CHAPTER XIX. 
 
 ASSESSMENT OF DAMAGE. 
 
 I. Actions against a single De- 
 
 fendant. 
 
 1. Judgment hy Confession, Refer- 
 
 ence to the Master, Writ of 
 Inquiry. 
 
 2. Judgment by Default. 
 
 3. Judgment on a Point of La2v. 
 
 4. Several Claims, where some are 
 
 bad. 
 
 II. Actions against several De- 
 fendants. 
 
 1. Where there is a Verdict against 
 
 all. 
 
 2. When some pay Money into 
 
 Court. 
 
 3. When Judgment goes by Default, 
 
 against all or some. 
 
 III. When Greater Damages are 
 given than are claimed. 
 
 IV. Double and Treble Damages. 
 V. When an omission by the Prin- 
 cipal Jury may be supplied. 
 
 "We have now discussed all the preliminary steps necessary 
 to a judgment for damages ; the mode of pleading, the species 
 of evidence that may be adduced, and the rules of law that 
 ought to be laid down for the guidance of a jury. It now 
 remains to consider the practical machinery by which the 
 process is worked out. 
 
 Where the case comes on for open trial, the jury who try 
 the cause, of course assess the damages also, and there the 
 matter ends. But the case may never be tried in open court 
 at all, or only part of it may be so tried, or only against 
 some of the defendants. Various distinctions also may arise, 
 according as the action is against one or several. It will be 
 simpler first to examine the mode of assessing damages where 
 the action is against one, and then to enquire into the further 
 complications which may arise, where several defendants are 
 joined. 
 Judgment by I. 1. The defendant may confess judgment. This he may 
 
 do either by means of a cognovit given beforehand, authorising 
 an attorney to confess judgment and mark execution against
 
 REFERENCE TO THE MASTER. 561 
 
 hiui for a particular amount, or by admitting in liis pleadings 
 that he has no defence to the action, or by implication ; as, for 
 instance, where an executor pleads ple^ie administmvit, or ^jlene 
 administmvit pmter. In all these cases, where the form of the 
 confession admits that an ascertained sum is due (a), judg- 
 ment is final, and execution may issue at once for the amount. 
 Where a cognovit was given for the payment of the money 
 by instalments, and by the terms of the arrangement the 
 plaintiff was not to be at liberty to enter up judgment, or 
 issue execution unless default was made in payment of a 
 certain sura, with costs, by instalments, it was held that on 
 default being made in payment of any instalment, execution 
 might issue for the whole amount, in the absence of express 
 words to the contrary (&). But where the whole sum does 
 not become due upon default in any instalment, execution 
 may still be issued for each as it becomes due and remains 
 unpaid (c). 
 
 Where the amount for which judgment can be signed is not 
 ascertained, it will be necessary either to have a reference to a 
 master, or to sue out a writ of inquiry. 
 
 The Courts were formerly very strict in limiting the cases in ^Vhen a refer- 
 which a reference to the Master could be substituted lor a writ Master will be 
 of inquiry. They allowed it in actions upon bills of exchange, allowed. 
 promissory notes, bankers' cheques, covenant for non-payment 
 of money, and the like, where it was only necessary to compute 
 the amount of principal and interest due. But they refused it, 
 where the action was on a bill of exchange for foreign money, 
 or on a foreign judgment, or on a bond to save harmless, or on 
 a covenant to indemnify, or on a bottomry bond, or for calls 
 due on railway shares, or even in an action upon a judgment 
 recovered on a bill of exchange where interest was sought for, 
 or in an assumpsit for a certain sum due upon an agreement (f/). 
 Now, however, by an order which follows substantially the 
 Common Law Procedure Act, 1852, s. 94, in actions or pro- 
 ceedings in which it shall appear to the Court or a Judge that 
 
 {a) See Chit. Forms, 479, 7tli ed. ; 655, l-2th ed. 
 
 \h) Rose V. Tomblinson, 3 Dowl. 49 : Barrett v. Partington, 5 B. N. C. 
 487 : Levcridge v. Forty, 1 M. & S. 706. 
 (f) Davis V. Gompertz, 5 Dowl. 407. 
 (d) Chit. Archb. 929, 9th ed. ; 1328, 14th ed. 
 
 
 
 M.D.
 
 562 
 
 EEFERENCE TO THE MASTER. 
 
 Evidence upon 
 a writ of 
 inquiiy. 
 
 Amount due 
 must be proved 
 unless ad- 
 mitted. 
 
 the amount of damages sought to be recovered is substantially 
 a matter of calculation, it shall not be necessary to issue a writ of 
 inquiry ; but the Court or a Judge may direct that the amount 
 for which final judgment is to be entered, shall be ascertained 
 by an officer of the Court (e). And where judgment goes by de- 
 fault in the case of any claim for pecuniary damages, the amount 
 of damages may be ascertained in any way directed by the 
 Court or a Judge instead of by writ of inquiry (/). 
 
 The proceedings upon a writ of inquiry do not come within 
 the plan of this work. As to the amount which may be re- 
 covered, I may observe that the plaintiff must always recover 
 nominal damages, for the writ of inquiry assumes that the cause 
 of action has been proved ( g) ; therefore where the action is 
 on a lease, the defendant is estopped from denying its execu- 
 tion (//). Xor can he object to the want of a stamp on the 
 written contract (i). Nor prove absence of consideration for a 
 bill or note (Z). Xor can he show anything in mitigation of 
 damages, which might have been pleaded ; as, for instance, that 
 he has a set-off (/), or that he has paid part of the demand (m). 
 Nor need the plaintiff prove his interest in a policy of insur- 
 ance (n), nor even produce the document ; as, for instance, a 
 bill of exchange, upon which he sues (o). 
 
 The state of things under which a writ of inquiry is brought, 
 assumes not only that a cause of action, but that the cause of 
 action laid by the plaintiff is proved. Where the amount 
 claimed is such an essential part of the description of the 
 cause of action as to be a material and traversable statement, 
 as, for instance, the amount of a bill of exchange, no evidence 
 is required on the writ of inquiry (p) to entitle the plaintiff to 
 recover it. But it is otherwise where the distinct sum claimed 
 is not so laid as to bo in issue. If a plaintiff declared for 
 
 (e) 0. 36, R. 57. 
 (/) 0. 13, E. 5 ; 0. 27, R. 4. 
 
 ig) De Gailloii v. L'Aiglc, 1 B. & R. 36S : Dods v, Evans, 15 C. R. N. S. 
 621. 
 
 (k) Collins V. Byhot, 1 Esp. 157. 
 
 (i) Banhui'y Vnion v. liohivson, Dav. & Mer. 92. 
 
 [k) Shepherd v. Charter, 4 T. R. 275. 
 
 (I) Caritthcrs v. Graham, 14 East, 578. 
 
 (to) Lane v. Mvllins, 2 Q. B. 254. 
 
 (n) 2'hcllusso)i V. Fletcher, 1 Doug. 31C. 
 
 (o) Lane v. Mullins, 2 Q. R. 254. 
 
 (jp) Lane V. Mull ins, uhi siip.
 
 AVRIT OF IXQUIRY. 563 
 
 rent under a lease, laying the amount under a viz., and 
 judgment -were suffered by default ; if the rent appeared in 
 evidence to be less than was alleged, the plaintiff would re- 
 cover only the amount proved to be due {q). So in an action 
 against a carrier for loss of goods, their value and the expense 
 the plaintiff has been put to must be proved (r). Where the 
 action was on a contract to purchase property at a certain 
 large sum (to wit), the sum of 172^., judgment went by de- 
 fault. The under-sheriff ruled that the contract must be pro- 
 duced to entitle the plaintiff to more than nomiual damages. 
 When produced it turned out not to be stamped. He rejected 
 it on this account, and there being no other evidence of tlie 
 amount of loss incurred, ordered a verdict for nominal damages. 
 The Court ruled that he was wrong in rejecting the instrument 
 for want of a stamp ; but on the other point Patteson, J., said, 
 " He thought there would be great difficulty in saying the 
 under-sheriff was Avrong"(.s). And so, although the amount 
 of a bill may be recovered without producing it, interest upon 
 it from maturity cannot (/j. On the same princi2)le, though 
 judgment by default in an action for use and occupation admits 
 that defendant occupied a house of the plaintiff's, he may 
 show that he did not occupy the particular house with which 
 the j)laiutiff is trying to fix him, but the onus of proof is on 
 the defendant (»). So in an action for work and labour, de- 
 fendant may show that all the amount charged for was not done 
 at his request {x). And in an action for mesne profits, where 
 judgment had gone by default, the plaintiff must prove the 
 whole time during which the defendant was in possession, 
 and in the absence of such proof can only obtain nominal 
 damages (,//). 
 
 On the other hand there are some cases in which the mere 
 
 (q) Per Lord Denmiui, C. J., 2 Q. B. 92:J. 
 
 (r) Livingston v. JJoiujlax, 2 Dowl. 630, d. 
 
 (s) Banhurij Union v. liobinson, Dav. & M. 92, 97. 
 
 {t) Uutton V. Ward, 1") Q. B. 26 ; Doyle v. Duffy, 6 Ir. L. R. 153, contra. 
 In Byles oa Bills, 43;"!, loth ed., it is said : "If interest be sought from a 
 period before the issuing of the writ, it may be necessary to produce the 
 bill." 
 
 (!() Davis V. llohlslup, 1 Chit. Rep. 644, n. 
 
 («) WiUiamsw. Cooper, 3 Dowl. 204. 
 
 ((/') he V. Scott, 9 Dowl. 993. 
 
 2
 
 564 
 
 JUDGMENT BY DEFAULT. 
 
 Judgment by 
 default. 
 
 For want of 
 appearance. 
 
 Judgment 
 for want of 
 defence. 
 
 fact of the wrong done, without any proof of the express loss, 
 might entitle the plaintiff to substantial damages. The jury, 
 in such cases, as for instance on a writ of inquiry in an action 
 of libel, may give such damages as they think fit, though no 
 evidence is laid before them (z). 
 
 2. The defendant may let judgment go by default, either 
 for want of appearance, or for want of a defence. 
 
 In the former case, if the writ has been indorsed for a liqui- 
 dated demand, whether specially or otherwise, the plaintiff may 
 at once enter final judgment for a sum not exceeding the sum 
 indorsed on the writ with interest at the rate specified, or if no 
 rate be specified, at five per cent, to the date of judgment and 
 costs, and issue execution (a). If the claim is not for a debt or 
 liquidated damages, but for detention of goods and pecuniary 
 damages, or either of them, interlocutory judgment may be 
 entered, and a writ of inquiry issues to assess the value of the 
 goods and damages, or damages only, as the case may be, in 
 respect of the causes of action disclosed by the indorsement on 
 the writ of summons. The Court or a Judge may, however, 
 order that instead of a writ of inquiry the value or amount of 
 damages shall be ascertained in any way which the Court or 
 Judge may direct {b). And where the writ is indorsed with a 
 claim for detention of goods and pecuniary damages, or either 
 of them, and is further indorsed for a liquidated demand, final 
 judgment may be entered for the liquidated demand and inter- 
 locutory judgment for the remainder. So where damages for 
 mesne profits, arrears of rent, double value, or damages for 
 breach of contract or wrong or injury to the premises claimed, 
 are indorsed upon a writ for the recovery of land, the plaintiff" 
 enters judgment for the land, and proceeds as above for the 
 other claims (c). 
 
 Where the defendant has not delivered a defence within the 
 proper time, judgment may be signed ; and if the plaiutift"s 
 claim be only for a debt or liquidated demand, judgment by 
 default will be final. In cases which do not come within thi& 
 
 (3) Tripp V. Thomas, 3 B. & C. 427. 
 (a) Ord. 13, R. 3 ; Ord. 42, R. 17. 
 (6) Ord. 13, R. 5. 
 (c) Ord. 13, R. 9 ; Ord. 27, R. S.
 
 JUDGMENT ON POINTS OF LAW. 565 
 
 description, the plaintiff will be driven to a reference to the 
 master, or a writ of inquiry, or such other mode of ascertaining 
 the damages as may be ordered, as stated above {d). 
 
 If the plaintiff's claim be for a debt or liquidated demand, 
 and also for detention of goods and pecuniary damages, or 
 pecuniary damages only, and the defendant makes default, the 
 plaintiff may enter final judgment for the debt or liquidated 
 demand, and also enter interlocutory judgment for the value 
 of the goods and damages, or damages only, as the case may be, 
 and proceed as above mentioned (e). 
 
 Under the old practice, where the defendant let judgment go 
 by default as to part of the declaration, and pleaded to the 
 rest, a special venire was issued, and the jury who tried the 
 issue assessed damages for the whole (/). Under the present 
 practice, the judge would probably in a similar manner order 
 the damages for the whole to be assessed by the jury who tried 
 the issues ( (j). 
 
 :>. Demurrers are no longer allowed, though points of law 
 may be raised by the pleadings, which by order or consent may 
 be set down for hearing before the trial. If such a point of 
 law is disposed of before the trial, and substantially disposes of 
 the action or a distinct part of it, the Court or Judge may 
 make such order as is just (A). Probably in practice a judg- 
 ment for the plaintiff' upon such a point of law will be inter- 
 locutory or final, in the same manner and in the same cases as 
 a judgment by default ; and the same mode will be pursued in 
 assessing damages. 
 
 Special orders will, without doubt, be made in all cases. Wliere there is 
 Where, formerly, there were several issues upon the record, defendant on 
 and a finding for the defendant upon one which went to the one issue. 
 merits of the whole action, it was unnecessary for the jury 
 to assess damages upon the others {i). So now, if there 
 is any one finding of the jury which entitles the defendant 
 to judgment it would be unnecessary to have damages 
 assessed. 
 
 {d) Ord. 27, Rs. 2—6. 
 
 (e) Ord. 27, K. 6. 
 
 (/) Heydon's case, 11 Rep. 5. 
 
 [g) Ord. 27, R. 4. 
 
 (A) Ord. 25, K. 3. 
 
 (i) Gregory v. Duke of Brunswick, 3 C. B. 481.
 
 566 
 
 SEVERAL COUNTS OR CAUSES OF ACTION. 
 
 Assessing 
 damages upon 
 several counts. 
 
 Or upon tlie 
 same count 
 containing 
 several de- 
 mands. 
 
 4. Where, formerly, there were several causes of action in 
 the same declaration against the same defendant, and there was 
 a general verdict for the plaintiff, damages might be assessed 
 severally upon each count (k). And this was the safer course ; 
 for when damages were entirely assessed, it was intended for all 
 that for which the plaintiff complained (/). And therefore, if 
 any one of the alleged causes of action was insufficient, a venire 
 cle novo was awarded {m). 
 
 On the other hand, if the same count contained two demands 
 or complaints, for one of which the action la}^ and not for the 
 other, all the damages were referred to the good cause of action, 
 although it was otherwise if they were in separate counts (/?)• 
 It was questionable, however, whether the result would be the 
 same, if it appeared that the jury had, in fact, given damages 
 on a bad cause of action. An action of trespass was brought 
 against a surveyor for cutting the plaintiff's trees, which over- 
 hung the highway. Defendant pleaded an order by the justices 
 under the Highway Act, authorising him to do so. The order 
 was bad as to part of the trees, and therefore formed no justi- 
 fication. As to part it was good. The jury found a general 
 verdict for the plaintiff as to the injury to all the trees, under 
 the direction of the judge, who told them that the order was 
 entirely bad. A new trial was directed, that the jury might 
 inquire whether the defendant cut do^^^l more trees than the 
 good part of the order would justify, and to assess damages 
 accordingly (o). Though not directly in point, the principle of 
 this case seems to bear strongly upon the question suggested. 
 And so where a single count in trover charged the conversion 
 of goods, ch.dt,ii%\?>^\imdi fixtures, to wit, &c., and a general judg- 
 ment for the plaintiff", a motion was made to set aside the 
 
 {Ic) 1 Koll. Abr. 5r0. See Clarke v. Roe, 1 Ir. C. L. 1. 
 
 il) 10 Rep. 130, a. 
 
 (m) Chadvnck v. Troiver, 6 Bing. N. C. 1 : Leach v. Thomas, 2 M. & W. 
 427 : Stevenson v. Newnhaui, 13 0. B. 285. At one time the rule used to be 
 to arrest judgment in toto : Grauively. Rhobotham, Cro. Eliz. 865 : Staynrude 
 V. Locock, Cro. Jac. 115 ; 5 Rep. 108 b. : Holt v. Scholejield, 6 T. R. 691 : 
 iSicklemore v. Thisthton, 6 M. & S. 9. For this purpose several breaches of 
 the same agreement, or of the same covenant, were considered as several 
 counts : Leach v. Thomas, tibi sup. : Sicklemore v. Thistleton, \ihl sup. 
 
 {n) Laicrie v. Dyeball, 8 B. & C. 70 : Campbell v. Lewis, 3 B. & A. 332 ; 
 Ex. 52. 
 
 (o) Jenny y. Brook, 6 Q. B. 323.
 
 lander. 
 
 GENERAL VERDICT. 567 
 
 verdict on the ground that trover did not lie for fixtures. 
 Parke, B., said, that if it were clear that this declaration, con- 
 tained two distinct causes of action, for one of which trover 
 could not be maintained, then, as general damages had been 
 assesssed upon the whole declaration, there must be either an 
 arrest of judgment, or venire de novo ; it was unnecessary to 
 determine which. And he said the case was distinguishable 
 from that of an action for words, some of which are not action- 
 able ; for there the Court would presume that the non-action- 
 able words were not intended to constitute the cause of action, 
 but were used merely as matter of aggravation or explanation. 
 The Court held, however, that fixtures did not necessarily mean 
 things affixed to the freehold, and therefore the objection fell 
 to the ground in that instance {])). 
 
 Where the action was for defamation, the following distinc- In actions for 
 tion was taken : that if an action was brought for speaking 
 words all at one time, that is, all in one count, and there was a 
 verdict, though some of the words would not maintain the 
 action, yet if any of the words would, the damages might be 
 given entirely ; for it was intended that the damages were given 
 for the words which were actionable, and that the others were 
 inserted only for aggravation. But if the action was brought 
 for several words spoken at several times, and the action would 
 not lie for the words spoken at one time, but would lie for the 
 words spoken at another, and a verdict was found for all the 
 words and entire damages given, it was not good ((/). In an 
 early case the first branch of this rule was put on the common- 
 sense ground, that if judgment must be arrested, a man by 
 speaking words not actionable and words actionable together 
 would secure himself from action, because he must be found 
 guilty of the whole or none (r). The latter part of the rule, 
 so far as it conflicted with that laid down in Lawrie\, Dyelall, 
 cited above, probably proceeded on the ground, that when 
 words appeared to have been spoken on different occasions, 
 the Court treated them as different counts. If, then, one turned 
 
 {p) Sheen V. Rickie, 5 M. k W. 175, 181. 
 
 (q) 2 Wms. Saund. 171, d. ; 2 Wms. Notes to Saund. 498 ; Bois v. Bois, 
 1 Lev. 134 : Broohc v. Clarke, Cro. Eliz. 328 : Benson v. Gooday, Cro. Car. 
 327 : Griffiths v. Lewis, 8 Q. B. 841 : Alfred v. Farlow, 8 Q. B. 354. 
 
 (r) Lhyd v. Morris, Willes, 443.
 
 568 
 
 ASSESSING DAMAGES AGAINST SEVERAL DEFENDANTS. 
 
 New pro- 
 ceil ui-e. 
 
 Separate 
 assessment in 
 detinue. 
 
 Prospective 
 dam:i£re. 
 
 Where the 
 action is 
 against 
 several, 
 damages must 
 be assessed 
 generally. 
 
 out to be bad, of course general damages assessed on all would 
 be bad also. 
 
 Under the present practice mistakes made in allowing juries 
 to assess damages generally instead of severally will not prac- 
 tically be of so much importance as formerly. New trials will 
 only be granted where there has been substantial wrong or 
 miscarriage ; and final judgment may be given as to part of the 
 matters in controversy though a new trial be directed as to the 
 remainder (s). 
 
 It may still be useful to remember that in detinue, damages 
 ought to be assessed as to each chattel separately, that a satis- 
 faction may be had in value for each parcel in case they be not 
 all delivered (/). And if the jury do not assess damages, the 
 Court cannot exercise its jurisdiction given originally by 
 17 & 18 Vict. c. 125, s. 78, and. continued by the new rules («)^ 
 to order a delivery to the plaintiff in specie {x). It was held 
 under the old practice that the defect could not be remedied 
 by a writ of inquiry, but there must be a venire de novo (y). 
 
 I examined in the early part of this work (z) the cases in 
 which damages might be given in respect of matters subsequent 
 to action brought. For a continuing cause of action damages 
 are to be assessed down to the time of assessment (a). 
 
 II. 1. Where, under the old system, an action was brought 
 against several, and the plaintiff had a verdict against all, if 
 the action was on a contract, it necessarily was for the amount 
 of the single liabililty which rested upon all. And even where 
 the action was for a tort, the jury were obliged to assess 
 damages generally against all, and that whether they united 
 or severed in the pleas and issues (h). And in such a case, the 
 measure of damage was the gross amount of injury which the 
 plaintiff had. received from all, it being said that "although one 
 
 (s) Ord. 39, K. 6. 
 
 (<) Pawly V. BoUv, 2 W. Bl. 853. 
 
 («) Ord. 48, R. 1. 
 
 (x) Chilton V. Carrington, 15 C. 
 
 {y) 10 Rep. 119, b. : Herbert v. 
 
 (2) Ante, p. 102. 
 
 (a) Ord. 36, R. 58. 
 
 (6) Cocke v. Jennor, Hob. 66 : Heydons case, 11 Rep. 5, b. : Crane v. 
 ffummerstonc, Cro. Jac. 118 : Onslow v. Orchard, Stra. 422 : Lowfcld v. 
 Bancroft, Stra. 910 : Hill v. GoodchUd, 5 Burr. 2790. 
 
 See ante, p. 406. 
 
 B. 730 ; 24 L. .T. 0. P. 78. 
 Waters, 1 Salk. 205.
 
 ASSESSING DAMAGES AGAIXST SEVERAL DEFENDANTS. 569 
 
 of them clef ado does more and greater wrong than the others, 
 yet all coming to do an unlawful act and of one party, the 
 act of one is the act of all of the same party being present " (c). 
 A doubt was, however, expressed as to this latter doctrine. An 
 action was brought against the sheriff, and one of his officers 
 jointly, and large damages given. The Court held that the 
 damages were not excessive against the sheriff, though they 
 would be excessive against his officer but for the doctrine above 
 mentioned. " It has been said," they observed, " that in an 
 action of tort against several defendants who have taken differ- 
 ent parts in the transaction, the measure of damages ought to 
 be the sum which ought to be awarded against the most guilty 
 of the defendants. We wish to afford an opportunity for dis- 
 cussing whether there be such a doctrine, and how far it applies 
 to the present cause " [d). And it was quite settled that in no 
 case could the malignant motive of one party be made a ground 
 of damage against the other party, who was altogether free 
 from such improper motive. In such case the plaintiff was 
 bound to select the party against whom he meant to get aggra- 
 vated damages {e). 
 
 Xow that actions may be brought against all defendants New pro- 
 against whom the right to relief is alleged to exist whether *^^'^"''^- 
 jointly, severally, or in the alternative, and judgment given 
 against such one or more of them as may be found liable ac- 
 cording to their respective liabilities, it is possible that juries 
 will be allowed to distinguish between defendants in according 
 damages for a joint unlawful act (/). 
 
 It was laid down in some old authorities, that in trespass Contrary 
 against two, if the jury found one guilty at one time, and the flecisions. 
 other at another, there several damages might be taxed ; but 
 if the plaintiff' himself confessed that they committed the 
 trespasses severally, there the writ should abate ; and so there 
 was a difference between finding by verdict, and confession of 
 the party ( g). And so where one was found guilty of one part 
 
 (c) 11 Rep. 5, b. ; Brown v. Allen, 4 Esp. 158 : Eliot v. Allen, 1 C. B. 
 18 : Clark v. Netvsam, 1 Ex. 131. 
 
 (d) Gregory v. Cottcrell, 22 L. J. Q. B. 217. 
 
 («) Clark V. Newsam, 1 Ex. 131, 140. See Wright v. Court, 2 C. & P. 
 232. 
 
 (/) Ord. 16, R. 4 and 5. See ante, p. 453. 
 (g) 11 Rep. 5, b.
 
 570 ASSESSING DAMAGES AGAINST SEVERAL DEFENDANTS. 
 
 and one of another (/i) ; or one of part and another of the 
 whole (i). And where entire damages were found in such a 
 case against all, judgment was reversed {k). According to 
 later decisions, this was not considered to be law. Torts being 
 in their nature several, the jury might find anyone guilty, and 
 acquit the rest ; but if they found several fguilty, they could 
 only convict them of that which was charged against them, 
 viz., a joint offence. Accordingly, where several persons were 
 sued jointly for assault and false imprisonment, two having 
 taken the plaintiff' into custody, and delivered him over to the 
 third by whom he was detained, it was ruled that the attention 
 of the jury must either be confined to what took place at the 
 place of detention, or there must be a verdict in favom" of the 
 third defendant. And for this reason, because the damages 
 being joint against all, the latter defendant would be liable to 
 pay for an act with the commission of which he had nothing 
 to do (I). And so when the action was against three, for 
 entering a dwelling-house and seizing goods, and the evidence 
 proved that two of the defendants seized the goods, and one 
 entered the house, but no joint trespass was established, 
 Cresswell, J., compelled the plaintiff''s counsel to elect on which 
 trespass he would go to the jury. As soon as the plaintiff' 
 proved a distinct trespass committed by one of several de- 
 fendants, and by him alone, and then tendered evidence of a 
 diff*erent trespass, he was liable to be called on to make his 
 election (m). 
 New pro- But now it is not necessary that every defendant should be 
 
 cedure. interested as to all the rehef prayed for, and a jury would 
 
 be entitled to award damages against a defendant for a 
 distinct trespass committed by him alone, in addition to the 
 damages awarded against him and his co-defendants for a 
 joint trespass {n). 
 
 (h) Player v. Wai'ri, Cro. Car. 54. 
 
 (t) Austen v. Willwurd, Cro. Eliz. 860 : Whitwell v. Short, Styl. 5. 
 
 {k) Ibid. 
 
 (l) Aaron v. Alexander, 3 Camp. 35 ; FoivcU v. Ilodgetts, 2 C, & P. 
 432. 
 
 (m) Howard v. Newton, 2 AI. & Rob. 509 : and see Barnard v. Gostlimj, 
 1 N. R. 245. As to how the error of taking damages severally instead of 
 jointly could be cured can be seen, if desired, in the first edition of this work, 
 p. 330. 
 
 (7i) Ord. 16. R. 4.
 
 JUDGMENT BY DEFAULT. 5/1 
 
 2. Where some defend as to the whole action, and others pay Where some 
 money into Court, if the jury find all guilty, and that the f,^{^ Court 
 sum paid is enough as to all, they must acquit the party 
 pleading payment, and find against the other parties with 
 nominal damages. But they cannot find that the sum is 
 
 enough as to the party paying it, and further damages against 
 the others. In such a case, if the tort was actually a joint 
 one, they must find against all for the surplus left unsatisfied 
 after the payment into Court (o). At least this was the 
 practice until the recent changes, and it should apparently 
 continue, unless indeed juries, as suggested above, are 
 allowed in cases of joint torts to give aggravated damages 
 against those of the defendants who were actuated by peculiar 
 malice (7?). 
 
 3. Where judgment by default has gone against all, the judgment by 
 plaintifi" should have damages assessed by a single writ of default agamst 
 inquiry, if necessary. Where formerly a plaintiff executed 
 
 several writs of inquiry in such a case, and several damages 
 were given against each, it was held that if he had entered up 
 final judgment upon these interlocutory judgments it would 
 have been erroneous. But upon payment of costs the plaintiff 
 was allowed to set aside his own proceedings (q). Now, if there 
 were any reason against a single inquiry, a judge would pro- 
 bably make a special order respecting the way in which the 
 damages should be ascertained under the powers given by 
 the rules (r). 
 
 Under the old practice, before the Judicature Acts, the effect Judgment 
 of a judgment by default, suffered by one only of several ^aafnst one ia 
 defendants, differed according as the action was in contract or contract. 
 for a tort. In the former case, if the writ had been specially 
 indorsed, the plaintiff' issued execution against the defendant 
 who had not appeared, in which case he was taken to have 
 abandoned his action against the other defendants. Or he 
 declared against those who had appeared, suggesting the judg- 
 ment by default (s). The latter course was a very dangerous 
 
 (o) Per Patteson, J., Walker v. Woodcott, 8 C. & P. 352. 
 
 I p) Ante, p. 568. 
 
 Iq) Mitchell v. Milhanh, 6 T. R. 199. 
 
 (r) Ord. 13, R. 5 ; Ord. 27, R. 4. 
 
 Is) C. L. P. Act, 1352, s. 33.
 
 572 JUDGMENT BY DEFAULT. 
 
 one, unless success against the defendants who had appeared 
 was certain, since if he failed against them in consequence of a 
 defence which went to the ground of the action, he could not 
 have judgment against the party who had made default (t) ; 
 and he could not remedy it by entering a nolle prosequi against 
 those who appeared (u). Where, however, the plea of those 
 who 'appeared was a matter of mere personal discharge, as 
 bankruptcy, insolvency, ne unques executor (x) ; or even where 
 such a plea was joined with one which went to the base of the 
 action (y), the plaintiff might enter a nolle prosequi against the 
 party pleading, and still retain his remedy against the other. 
 But infancy was not such a plea of merely personal discharge 
 as would allow of a nolle prosequi being entered, since it 
 proved that there never was a binding contract made by all the 
 parties, not that it had ceased to bind one of them (2). The 
 proper course in such a case was to discontinue and sue the 
 adult alone [a). 
 3n tort. Where the action against several was in tort, and some let 
 
 judgment go by default, and others pleaded, a special venire 
 was awarded, lam ad triajidum guani ad inquirendum, and the 
 jury who tried the issue assessed damages against both (h). 
 And if upon the trial those who had pleaded were acquitted,, 
 damages might still be assessed against those who had let 
 judgment go by default (c). But it was otherwise if the plea 
 of those who appeared not only operated as a defence to them- 
 selves, but showed that the plaintiff had no cause of action 
 against either, as that the goods taken were a gift from the 
 plaintiff to the defendant, or a lawful distress for rent, or that 
 the plaintiff had released one of the joint trespassers (fZ) ; 
 apparently, however, the plaintiff might at his option take 
 
 (t) Porter v. Harris, 1 Lev. 63 : Boulter v. Ford, 1 Sid. 76. 
 
 {u) 1 W. Saund. 207, a. ; 1 Wms. Notes to Saund. 215. 
 
 (x) Noke V. IiKjham, 1 Wils. 89. 
 
 {y) Moravia v. Jhinter, 2 M. & S. 444. 
 
 \z) Chandler v. Paries, 3 Esp. 76. Jaffray v. Frebain, 5 Esp. 47. 
 
 (a) Burgess v. Merrill, 4 Taunt. 468. 
 
 (6) 11 Rep. 6, a. And this was also the proper course when the action was 
 in contract for unliquidated damages : T/iomjJion v. Shanley, 4 Ir. C. L. R. 
 617 ; 2 Ch. Arch. Pr. 980, 9th ed. 
 
 (c) Jones V. JJarris, Stra. 1108 : Cressy v. Welh, Stra. 1222. 
 
 {d) Briggs v. Grtiiifeild, Stra. 610 ; 2 Lord Kaym. 1372, S. C. : Marler 
 V. Ayliffe, Cro. Jac. 134 ; 1 Inst. 125, b.
 
 JUDGMENT BY DEFAULT. 
 
 73 
 
 judgment against those who made default and enter a nolle 
 ^Jrosequi against the others {e). 
 
 Now, these distinctions have been done away wifcli. If the New pro- 
 writ is specially indorsed for a debt or liquidated demand in 
 money, and one or more defendants do not appear, or do not 
 deUver a defence, the plaintiff may enter final judgment 
 against such as have not appeared, and may issue execution 
 upon such judgment without prejudice to his right to proceed 
 with his action against such as have appeared (/). And when 
 the action is for detention of goods and pecuniary damage, or 
 tit)ier of them, if one of several defendants make default, the 
 plaintiff may enter an interlocutory judgment against him, and 
 proceed with the action against the others ; and damages 
 against the defendant making default will be assessed at the 
 same time with the trial of the action or issues therein against 
 the other defendants, unless the Court or a judge otherwise 
 direct (^). Seeing, also, that all persons may be made de- 
 fendants against whom the right to any relief is alleged to exist 
 jointly, severally, or in the alternative, and judgment may be 
 given against one or more of them according to their respective 
 liabilities (h), the nice questions of non-suit which used to arise 
 will cease to do so. 
 
 Althougli in tort the plaintiff may proceed against any of Former 
 the wrong-doers separately, a recovery against one will be a bar [1^°^^^^ 
 to an action against any other whom he might have joined in 
 the same action ; for by the judgment the damages are con- 
 verted into certainty (i). But the mere pendency of an action 
 against one is no answer to an action against another (^), 
 whether on a contract or tort. 
 
 III. We have seen before (/) that no greater damages can be Verdict for 
 o-iven than are alleged in the statement of claim. Under the 
 
 larger dama^ 
 thau are 
 claimed. 
 
 (e) Walsh v. Bishop, Cro. Car. 239, 243. 
 
 (/) Ord. 13, 11. 4 ; Ord. 27, R. 3 : see JcnJdns v. Davies, 1 Ch. D. 69(5, 
 where the defendants were husband and wife. 
 
 {q) Ord 27, R. 5. 
 
 (/i) Ord. 16 R. 4. 
 
 (i) Mortons case, Cro. Eliz. 30 : Brown v. Wootton, Cro. Jac. 74 : Cocke 
 V. Jennor, Hob. 66 : Lechmere v. Fletcher, 1 C. k M. 634 : King v. Honrc, 
 13 M. k W. 504 : Brinsm''r,d v. Hirrison, L. R. 6 C. P., f>S4 ; 40 L. J. C. P. 
 281 : affirmed 41 L, J. C. P. 190. See ex parte Drake, 5 Ch. D. 856. 
 
 {_k) Henry v. Goldney, 15 M. & W. 494 : overrulias Boyce v. Douglass, 1 
 Camp. 60. 
 
 (i; Ante, p. 142.
 
 574 
 
 DOUBLE AND TREBLE DAMAGES. 
 
 Doulile and 
 t reblc 
 damages. 
 
 When a vrit 
 of inquiry 
 may assess 
 damages in 
 place of the 
 principal 
 jury. 
 
 old practice, if the jury gave more it was error, and the judg- 
 ment was reversed (7>0. After judgment the party could not 
 himself amend, but the Court would in the exercise of their 
 authority to amend, allow him to become their instrument for 
 that purpose ; and this they would do, even in a subsequent 
 term, and after error brought on that very account, and joinder 
 therein (w). 
 
 IV. There are or were various statutes giving double and 
 treble damages against a person violating their provisions. For 
 instance, treble damages were given for a forcible entry into the 
 lands of the plaintiff (o), or for extortions by sheriflPs, coroners, 
 and officers of that nature (j?), or for an improper impounding 
 of a distress {q), or where a verdict was found for the defendant 
 in replevin where a distress had been taken for poor-rates (r). 
 And so double damages are given for distraining the plaintifl"s 
 goods, no rent being due (s). And treble damages for pound 
 breach or rescuing a distress (/). In all these cases the 
 practice is to take the sum returned by the jury, and without 
 any further communication with them, to double or treble the 
 (tmount (w). 
 
 Y. Having now gone through the practice according to 
 which a jury ought to assess damages, it remains to notice 
 the manner in which any omission by them so to do may be 
 supplied. 
 
 The old practice upon this point was that where the matter 
 omitted to be inquired into by the principal jury was such as 
 went to the very point of the issue, such matter could not be sup- 
 pUed by a writ of inquiry. But where the matters omitted to be 
 
 (m) 1 Roll. Abr. 578 : Pcrsival v. Spcnctr, Yelv. 45 : Hohlins v. Kimlle, 
 1 Bulstr. 49 : Vlicvelet/ v. Mon-is, 2 \V. JJl. 1300. Proceedings in error are 
 now abolished. Urd. 58, K. 1 [1875]. 
 
 (n) Pickicood v. Wrvjht, 1 H. 151. 043 : Usher v. Dansey, 4 M. &. S. 94. 
 For the principle of these amendments, see post, ch. 20. 
 
 (o) 8 Hen. VI. c. 9, s. 6 ; repealed by 42 & 43 Vict. c. 59 ; Dyer, 214, a, 
 pi. 45. 
 
 (p) 13 Hen. YI. c. 10, s. 11 ; 29 Eliz. c. 4: BnmMlens {Bumpsted's) 
 case, Cro. Car. 438, 448. 
 
 (q) 1 & 2 Ph. k M. e. 12, s. 1. 
 
 (r) 43 Eliz. c. 2, s. 19 ; repealed by 26 & 27 Vict. c. 125 ; NeiL-man v, 
 Barnard, 10 Bing. 274. 
 
 (s) 2 W. & M. sess. ]. c. 5, s. 4 ; Masters v. Farris, 1 C. B. 715. 
 
 \t) 2 W. & M. sess. 1. c. 5, s. 3 ; Anon. Lord Raym. 342 ; Lawson v. 
 Storie, Salk. 205. 
 
 (i() Attorneii-Gencral V. Hattov, 13 Pri. 476, M'Clell. 214; Buclic v. 
 Beives, 4 B. & C. 154, Bro. Bam. pi. 70.
 
 OinsSION TO ASCERTAIN DAMAGES. 575 
 
 inquired into by the jury did not u'C to the point in issue, or 
 necessary consequence thereof, but were things merely collateral, 
 they might be inquired into by a subsequent writ of inquiry. 
 
 Hence, no writ of inquiry could issue where the jury had 
 omitted to assess damages in detinue or trespass (.r) ; or libel (y) ; 
 or on a bond conditioned for the performance of covenants 
 within statute 8 & W. III. c. 11 (,?) ; or in assumpsit, though 
 the only issue was on a plea of abatement (a). But in all these 
 a vmire de novo was awarded. Xor could an omission to 
 assess damages on the traverse to a return to a mandamus 
 be supplied (7^). Where, however, in such a case as that last 
 mentioned, the jury had omitted to give nominal damages, 
 but the omission to mention them to the jury, and to enter 
 them as part of the associate's minutes, was accidental, the 
 judge having intended so to direct them, it was held that the 
 judge was justified in ordering l.s. damages to be entered on 
 the postea (c). 
 
 On the other hand, where the plaintiff had a verdict, and Confession. 
 damages assessed upon an immaterial issue, or even where 
 judgment had gone for the defendant, still, if enough appeared 
 upon the pleadings to entitle the plaintiff to judgment by con- 
 fession, a writ of inquiry issued to assess new damages {d). 
 And the plaintiff" might execute a wi'it of inquiry to assess 
 damages, where the circumstances of the cases entitled hini to 
 enter up judgment iwn ohstante rordicio (c). In replevin. Replevin. 
 where the plaintiff had a verdict against him, the defendant 
 could not, nor, it would seem, can he now, have judgment 
 under 17 Car. II. c, 7, for the arrear of rent, or the value of 
 the distress, except after an inquiry into the amount by the jury 
 empanelled to try the issue (/). But in every other case of 
 replevin, the omission of the jury to find damages for the 
 defendant may be remedied by a writ of inquiry (//). 
 
 (x) 10 Rep. 119. 
 
 (y) Clement v. Lewis, 3 B. & B. 297. 
 {z) Hardy v. Bern, 5 T. R. 540, 636. 
 (a) Eicliorn v. Le Maistre, 2 Wills. 3(37. 
 (h) Kyimstonv. Mayor of Shrewsbury, '1 Stra. 1051. 
 (c) Reg. V. Fall, 1 Q. B. 636. 
 
 (rf) Lacy V. Reynolds, Cro. Eliz. 214 : Jones v. Bod inner, Garth. 370 : 
 Broome v. Rice, 2 Stra. 873. 
 
 (e) ShepJiard v. Halls, 2 Dowl. 453. 
 
 (/) See ante, p. 420. 
 
 (g) Gilb. Distress, 193 : Harcourt v. Weeks, 5 Mod. 77 : Herbert t.
 
 576 oinssiox to asceetaix damages. 
 
 Xow a new trial can be directed mtd&F Ord. 39, Rw 7, for the 
 purpose of ascafainmg the damages witboat injoexfering wicli 
 the finding or decision iip«ai any other qocstion. Or the Conit 
 coold, nndo- Ord- 36, E. S. order the amonnt of damages to be 
 ascertained as a qne^on of feet separaletj iinHn the other 
 questioDS of &ct. 
 
 Waiers. Cxtih. S62 : DtmeM t. MmrnkaU, Z WSs. 442: Vaiemtime x. Fmweitt^ 
 
 2 Stra. ' -■'- " '- see WvigM t. lefdi^ & JkmL ISiL Of eonse -v^ae am 
 _iet s, . ■ listress for local pcxpoees, giires tie at<u>viaall ib® damasE^ im 
 
 case o: ^ - - . -:. . -- irLqniry is reirj^Tiired, or can. take place : Gvlaied t. Woody 
 
 6 iL & S. r-5. 
 
 I
 
 CHAPTER XX. 
 
 POWERS OF THE COUET OR JUDGE IN REGARD TO DAMAGES. 
 
 1. liijht to Begin. 
 
 2. Diredinf) the Jury. 
 
 3. Amendment. 
 
 4. Increasing or Altridging 
 
 Damages. 
 
 5. New Trial. 
 
 The last subject we have to consider is the part which may 
 be taken by the Court or a judge in respect to damages ; their 
 duties and their powers. 
 
 1. A matter of very considerable importance to the plaintiff Kigbt to begin. 
 in many cases is the right to begin. Many of the principles 
 
 upon this point are quite unconnected with the topics dis- 
 cussed in this treatise. There is one, however, directly relevant, 
 viz., the rule, that no matter on whom the proof of the issue . 
 may be thrown by the pleadings, the plaintiff must begin 
 whenever he proceeds for unascertained damages {a). When, 
 however, the affirmative issue rests in other respects upon the 
 defendant, if the plaintiff's counsel will not undertake to offer 
 proof of substantial damages, the right to commence then 
 passes to the defendant (Z>). But even where the judge has 
 ruled wrongly upon this point, a new trial will not be granted, 
 unless substantial wrong has been done to the party .against 
 whom he decided (c). 
 
 2. Another imperative duty resting upon the judge at Nisi Directing the 
 Prius is to direct the jury as to any rule of law by which they ^^^^^' 
 ought to be governed in their assessment of damages. Any 
 omission, mistake, or indefiniteuess in this respect, in conse- 
 quence of which the jury have gone astray, will be set right 
 
 (a) Mercer v. Whall, 5 Q. B. 447 : Edge v. HiUary, 3 C. & K. 43. 
 \b) Chapman v. Raicson, 8 Q. B. 673. 
 
 (c) Edwards v. Matthcics, 4 D. & L. 721 : Brandford v. Erecman, 5 Ex. 
 734. And see Orel 39, R. 6. 
 
 M.D. P P
 
 578 
 
 A]\IEND]MENT OF ERRORS. 
 
 Amendment 
 
 New pro- 
 cedure. 
 
 Amendment 
 must be in 
 furthei-ance of 
 the intention 
 of the jury. 
 
 by a new trial (d), if at least some substantial -wrong or mis- 
 carriage has been occasioned (e), and this whether the point 
 has been taken at the time of trial by counsel or not (/). 
 
 Questions of remoteness must be decided by the judge aud 
 ought never to be left to the jury {g). 
 
 3. It would be useless now to discuss at any length the rules 
 which used to prevail respecting an amendment of the postea ; 
 in cases, for instance, where the officer of the Court had 
 entered nominal damages by mistake, where substantial damages 
 had been given (A), or where the jury had not assessed the value 
 of the articles separately in detinue («), or where general damages 
 had been assessed upon a declaration in which some counts were 
 bad (,;■). 
 
 The successful party no longer signs judgment on tlie 
 postea, but the judge directs the findings of fact, and the 
 directions which he may give as to judgment to be entered 
 in the associate's book (/;;), and the associate's certificate is the 
 authority to the proper officer to enter judgment (/). If the 
 entry in the associate's book is not accordnig to the judge's 
 directions, the judge who tried the cause should be applied to 
 to direct a proper entry to be made. Where the judge has 
 caused the findings to be wrongly entered, or the judgment to be 
 wrongly entered having regard to the findings, any party without 
 any leave reserved may^have recourse to the Court of Appeal (»?). 
 That Court has full power to give any such judgment as ought 
 to have been given by the Court below, and under special 
 circumstances to hear fresh evidence on questions of fact {n). 
 
 Although amendments of the postea were allowed in order to 
 carry out the intention of the jury, by making the verdict what 
 
 (rf) Blake y. Midland Ry. Co., 18 Q. B. 93: Badley v. Baxcndale, 'J 
 Ex. 341. 
 
 (c) Ord. 39, R. 6. 
 
 (/) Knight v. Efjerton, 7 Ex. 407. 
 
 (,'/) Hobhs V. London d: South Western Ry., L. R. 10 Q. B. at p. 122 ; 44 
 L. J. Q. B. at p. 52 ; per Blackburn, J. See also Hammond v. Bussey, 20 
 Q. B. D. at p. 89 ; 57 L. J. Q. B. at p. 62 ; per Lord Esher, M.R. 
 
 {h) Newcombe v. Green, 2 Stra. 1197. 
 
 (i) Sandford v. Alcock, 10 AI. & W. 689. See ante, p. 508. 
 
 (j) Eddowesy. Hopkins, 1 Dougl. 377. 
 
 (/.-) Ord. 86, R. 41. 
 
 {I) Ord. 36, R. 42. 
 
 (m) Ord. 40, R. 3 and 4. 
 
 {n) Ord. 58, R. 4.
 
 INCREASING OR ABRIDGING DAMAGES. 579 
 
 they meant, and had virtually found (o), the verdict could not 
 be altered unless it clearly appeared that the alteration would 
 be agreeable to the intention of the jury (p). Therefore, where 
 in an action on 2 and 3 Ed. VI. c. 13, which gives treble value 
 for not setting out tithes, the jury found a verdict only for the 
 single value, it was held that the postea could not be amended 
 by entering the verdict for the treble value (q). But where the 
 plaintiff was entitled to treble damages, and the jury found a 
 sum as and for single damages specifically, the Court allowed 
 the amount to be trebled (r) ; but there the Court only gave the 
 finding of the jury its legal effect (s). The rule that the inten- 
 tion of the jury can only be ascertained by what has passed in 
 open Court, and that if the jury deliver one verdict, affidavits 
 from them cannot be received to show that they intended to 
 deliver another (/), will doubtless continue to prevail. 
 
 4, The power of the Court to alter the assessment of Power to 
 damages by their own independent authority has undergone Xidg?the 
 a complete change. It was always admitted that in cases where damages. 
 the amount of damages was uncertain, their assessment was a 
 matter so peculiarly within the province of the jury that tlie 
 Court could not alter it (u). On the other hand it was laid 
 down in old books, that wherever the demand of the plaintiff 
 was certain, as in an action of debt, the verdict might be in- 
 creased or abridged by the Court (x). And so in cases of may- 
 hem, there was a long current of decisions to show that the Court 
 had the power of increasing the damages given by the jury, either 
 upon an inspection of the wound by the Court, or upon a certi- 
 ficate from the judge who tried the cause (ij). But I am not 
 aware of any instance in which such a jurisdiction has been 
 
 (o) WaUis V. Goddard, 2 M. & G. 912. 
 
 (p) Spencer v. Goter, 1 H. Bl. 78 : Reece v. Lee, 7 Moo. 269 : Ernest v. 
 Brown. 4 Bing. N. C. 167 ; Bull. N. P. 320. 
 
 {q) Sandford v. Clarle, 2 Chitt. 351 ; 2^ost, p. 580. 
 
 (r) Bakholn and Girrie's case, Godb. 245. 
 
 (s) 2 M. &. W. 199. 
 
 {t) Jackson v. Williamson, 2 T. R. 281 : Bentley v. Fleming, 1 C. 11 
 479 : Raphael v. Bank of Encjland, 17 C. B. 161. 
 
 (u) Delves v. Wyer, 1 Brownl. 204 ; Jenk. 2nd Cent. 68, pi. 29 : Bonhavi 
 V. Sturton, Dy. 105, a. : Hawkins v. Scict, Palm. 314. 
 
 (x) 11 H. IV. 10 ; 10 H. VI. 25 ; 32 H. YI. 1. 
 
 (y) 39 Ed. III. 20 : Trlpconys case. Dyer, 105, a. : Mallet v. Ferrers, 
 1 Leon. 139 : Hooper v. Pope, Latch. 223 : Austin v. Hilliers, Hardr. 408 : 
 More's case. Freeman, 173 : Cook v. Beat, 1 Ld. Raym. 176 : Broivn v. 
 Seymour, 1 Wils. 5 : Hoare v. Crozier, 2 Tidd. Pra. 9tli ed. 896 : Saiallpiece 
 V. Buckingham, Bull. N. P. 21. 
 
 p p 2
 
 580 INCKEASING OR ABRIDGING DAMAGES. 
 
 exercised in modem times. The Court will not even increase 
 the damages upon an affidavit by all the jury that they thought 
 the effect of their verdict would be to give the plaintiflF a larger 
 simi than it did (a). Nor where the cause was undefended, 
 and the plaintiff's counsel took a verdict for principal alone 
 without interest (b). And where the damages found by the jury 
 have been assessed on a principle assented to by the counsel on 
 both sides, the Court will not interfere to alter the amount of 
 the verdict, on affidavits that counsel were mistaken in that 
 which they assumed as the basis of their calculation (c). And 
 so in an action of debt on 2 & 3 Ed. VI. c. 13, which gives 
 treble value for not setting out tithes, the jury found a verdict 
 for the single value only, and it was held that the postea could 
 not be amended by entering the verdict for the treble value. 
 The Court said, " Had this been an action for penalties, and 
 the jury, upon the plea of not guilty, had found that the defen- 
 dant was guilty of the premises, and that the single value of 
 the tithes was so much, then the plaintiff might come to the 
 Court to have the judgment entered up for treble value as 
 given by the statute. But if the jury, as in this case, find that 
 the defendant owes the plaintiff so much, we arc bound to con- 
 clude from the postea, that they have taken into consideration 
 all the damages that the plaintiff was entitled to recover. 
 There is nothing in this case to show that the jury have only 
 found the single value, and we cannot allow the matter to be 
 explained by affidavit " (d). On the other hand, where the 
 plaintiff was entitled to treble damages, and the jury found 
 a sum as and for single damages specifically, the Court allowed 
 the amount to be trebled (e). But there the Court only gave 
 the finding of the jury its legal effect (/). Where, however, the 
 plaintiff had evidently sustained some damage, but the jury 
 being unable to ascertain the amount, found a verdict for the 
 defendant, the Court permitted the plaintiff to enter a verdict 
 for nominal damages (ff). 
 
 (a) Jackson v. Williamson, 2 T. R. 281. 
 
 (b) Baker v. Broun, 2 M. & W. 199. 
 
 (c) Hilton V. Foicler, 5 Dowl. 312. 
 
 (d) Sandford v. Clarice, 2 Chitt. 351 ; ante, p. 579, 
 (c) Baldwin and Girrie'a case, Godb. 245. 
 
 (/) 2 M. & W. 199. 
 
 is) Feize v. Thomjpson, 1 Taunt. 121.
 
 NEW TRIAL. 581 
 
 Nor will the Court in any case now reduce the damages 
 without the consent of the plaintiff, and if he refuse, they can 
 do nothing but order a new trial (h). But if he consents the 
 judgment may be entered for the reduced sum without the con- 
 sent of the defendant (i). 
 
 It is laid down in many old cases, that damages upon Damages on 
 a writ of inquiry may always be increased or reduced at the y^tof 
 
 ■*■ "^ "^ "^ inquiry. 
 
 pleasure of the Court (7c), because the Court themselves, if they 
 had so pleased, might upon an interlocutory judgment have 
 assessed the damages, and the inquisition is only a matter of 
 course, taken to satisfy the conscience of the Court (/). In 
 practice, however, the Court never do so now, but award a 
 new writ of inquiry in all cases in which they would award a 
 new trial (m). 
 
 Where the amount of damages depends upon a question of Where 
 law, the convenient course, with a view to save the expense of a jg^^f^^ ^q 
 new trial, is to obtain the opinion of the jury upon the amount question of 
 of damages proper to be given in either alternative, or to settle ^^'" 
 such amount by consent. A verdict being then entered ac- 
 cording to one view of the case, if it is erroneous the matter 
 can be set right upon motion for judgment or for a new 
 trial. 
 
 In one case where a rule 7iisi to reduce damages had been 
 granted, the Court refused to allow execution to issue for the 
 part admitted, unless the plaintiflF would resign the rest. 
 Vaughan, B., said, " That the object was to have execution 
 without any judgment to warrant it " (n). But where part 
 was admitted to be due, the Court would make it a condition 
 of granting the rule nisi to reduce, that the plaintiff should be 
 allowed to issue execution for and levy that part (o). 
 
 5. It appears then that the question of practical importance New trial 
 with regard to the power of the Court over the amount of ^^'^^^^"^ 
 
 (A) Leeson v. Smith, i Nev. & M. 304 : 3foore v. Tuekiccll, 1 C. B. 
 607. 
 
 (i) Belt V. Lawes, 12 Q. B. D. 356 ; 53 L. L. Q. B. 249. Seejpos«, p. 588. 
 
 {k) 14 H. IV. 9 ; 3 H. VI. 29 ; 19 H. VI. 10, 28 : Cook v. Beal, 1 Ld. 
 Raym. 176. 
 
 {I) Yelv. 152 ; 2 Wils. 374 : Bruce v. Rawlins, 3 Wils. 62. 
 
 (m) Chitt. Prac. 9th ed. 939, 1438 ; 12th ed. 1004, 1533. 
 
 (n) Hellings v. Young, 3 Sco. 770. 
 
 (o) Davey v. Phelps, 2 M. & Gr. 300 : Bate v. Pane, 13 Jur. 609.
 
 582 NEW TRIAL. 
 
 damages, is as to the cases in which a new trial will be 
 
 granted, 
 where there Subject to the qualification which has recently been intro- 
 
 iias beeu cluced, that a new trial will not be granted on the ground of 
 
 error m ' . . . , 
 
 matter of law, misdirection, or improper admission or rejection of evidence, 
 unless some substantial wrong or miscamage has been occa- 
 sioned (i?), a new trial will be allowed where the damages were 
 affected in amount by improper evidence being admitted, or 
 the jury being allowed to take into consideration a ground 
 of claim, or mitigation which could not be supported in 
 law {q) ; or where the jury gave greater damages than were 
 claimed (r) ; or where a case of surprise is made out (s) ; 
 or where the judge has omitted to direct the jury as to the 
 proper measure of damages (/) ; or where there has been posi- 
 tive misdirection on his part, or misbehaviour on the part of 
 any other person (m). Where, however, on the execution of a 
 writ of inquiry, the jury asked what amount of damages would 
 carry costs, and the under-sheriff told them any sum would 
 do, upon which they returned a verdict of \d. ; it was held to 
 be no ground for a new trial, as it did not amount to a mis- 
 direction, not being wrong information on a matter which was 
 directly in issue, or which was substantially connected with the 
 finding on the issue (;r). 
 New trial Finally, a new trial will sometimes be granted, on the ground 
 
 that the damages are too small, or excessive, 
 will not i.e -^^ ^^^^ \)QQn frequently decided that where the action is for 
 
 granted, Unliquidated damages, the Court will not grant a new trial on 
 
 are^imi\qui-°^^ account of their being too low (y), unless there has been some 
 dated on the mistake in a point of law on the part of the judge who pre- 
 
 ground of 
 
 their being 
 
 too small, ip) Ord. 39, R. 6. 
 
 [q) Woodford v. Eades, 1 Stra. 425 : Tutton v. Andrews, Barnes, 448 : 
 Jcrmey v. Brook, 6 Q. B. 323 : Loch v. Ashton, 12 Q. B. 871. 
 (r) Scale v. Hunter, Lofft. 28. 
 \s) Hall V. Stone, 1 Stra. 515. 
 
 {t) Knight v. Erjerton, 7 Ex. 407 : Hadley v. Baxendale, 9 Ex. 341 ; 23 
 L. J. Ex. 179. 
 
 (m) Markham v. Middleton, 2 Stra. 1259. 
 
 (x) Grater v. CoUard, 6 Dowl. 503. See KUmore v. Abdoolah, 27 L. J. 
 Ex. 307. 
 
 iy) Marsham v. Bidler, 2 Roll. Rep. 21 : Hayward v. Nexvton, 2 Stra. 
 940 : Barker v. Dixie, ibid. 1051 : Lord Gov:er v. Heath, Barnes, 445 : 
 Surges v. Nightingale, Barnes, 230 : Riissel v. Ball, Barnes, 455 : Anon. 
 2 Leon. 214 : Manton v. Bales, 1 C. B. 444.
 
 NEW TRIAL. 583 
 
 sided, or in the calculation of fio-ures by the jury {a) ; or unless 
 it appears that the jury must have omitted to take into con- 
 sideration some of the elements of damage {h). The alleged 
 reason is, that new trials came only in the room of attaints, as 
 being an easier and more expeditious remedy, and no attaint 
 would lie for giving too small damages (c). Accordingly a 
 new trial was refused, where in an action of trespass, for 
 bringing the plaintiff before a magistrate on an unfounded 
 charge of felony, only \d. damages were given, though a ques- 
 tion of character was involved (d). So where the jury only 
 gave 5/. in an action for maliciously suing out a commission of 
 bankruptcy against the plaintiff, though he proved that it had 
 cost him 30?. to set it aside, and no evidence was offered on 
 behalf of the defendant {e). And so where in an action for 
 assault and battery only 8/. were assessed, though it appeared 
 that the plaintiff's cure had cost him 18/., and no evidence was 
 given to the contrary (/). In one case where the action was 
 for running over the plaintiff, whose thigh was broken, and 
 his surgeon's bill came to 10/., a new trial was granted, the jury 
 having only awarded \(l. damages. Lord Denman said, "A 
 new trial on a mere difference of opinion as to amount may not 
 be grantable, but here are no damages at all " {g). On the 
 other hand, in a later case, where the same damages were 
 given in an action: against a surgeon for negligence, whereby 
 the plaintiff lost his thigh, a new trial was refused. Tindal, 
 C. J., said, " It is not usual with the Court to grant a new 
 trial on the ground that the damages are smaller than the 
 Court may think reasonable. At any rate a new trial ought 
 not to be granted on such a ground, unless the judge who 
 tried the cause is dissatisfied with the smallness, which, as 
 the learned judge has informed us, is not the case in the 
 present instance " (A). So strict is the rule, that no remedy 
 
 ((t) Rendall v. Hayward, 5 Bing. N. 0. 424 : Forsdike v. Stone, L. R. 
 3 C. P. 607 ; 37 L. J. C. P. 301 : Wilson x. Hicks, 26 L. J. Ex. 242 : 
 Nichol V. Bestwick, 28 L. J. Ex. 4. 
 
 (J) PhUlips V. L. d: S. W. Ry. Co., 4 Q. B. D. 406 ; affirmed 5 Q. B. D. 
 76, ante, p. 454. 
 
 (c) Barker v. Dixie, ubi sup. 
 
 (d) Apps V. Bay, 14 C. B. 112. And see Forsdike v. Stone, supra. 
 (c) Mauricet v. Brecknock, 2 Dougl. 509. 
 
 (/) Donelly v. Baker, Barnes, 154. 
 
 (7) Armyta'je v. Haley, 4 Q. B. 917. 
 
 (/i) Gihhs V. Tunalcy, 1 G. B. 640. See as to the weight to be gi /en to
 
 584 
 
 NEW TRIAL. 
 
 unless there 
 has been mis- 
 conduct of 
 the jury. 
 
 New trial will 
 be granted 
 where there is 
 a measure of 
 damages. 
 
 Contingent 
 assessment. 
 
 New trial on 
 the ground of 
 damages being 
 excessive. 
 
 can be had where the jury only gave Is. damages, though 
 it was admitted that they would have given 40s. had they 
 known that amount was necessary to carry costs (/). Nor 
 will a new trial be granted on the ground that from the small- 
 ness of the damages the jury must have come to a compro- 
 mise, unless from the circumstances of the case, it is evident 
 that there has been a total refusal of the jurors to discharge 
 their duty, and the verdict is necessarily wholly inconsistent 
 as, for instance, where there is a verdict for the plaintiff of |rf. 
 on a bill of exchange, where the only plea was that the bill 
 was forged {k). 
 
 Even independenily of misconduct on the part of the jurors 
 a new trial will be granted where the action is on a contract 
 for a fixed sum, and by some mistake or accident a verdict has 
 been taken for a smaller amount ; as, for instance, on a cove- 
 nant to pay a sum of money generally (l) ; or as liquidated 
 damages (m) ; or in an action on a promissory note, where less 
 than the amount has been given (n) ; or interest has been with- 
 held without proper cause (o). And so it was allowed where 
 the plaintiff in an undefended action for a mortgage debt, had 
 omitted to have interest assessed (p). 
 
 Where the plaintiff" has suffered damages to be assessed con- 
 tingently, he cannot afterwards claim a new trial, on the ground 
 of their being insufficient (q). 
 
 The power of the Court to grant a new trial, on account of 
 the excessiveness of damages, seems to be comparatively modern, 
 and to have sprung up when attaints fell into disuse (rj. 
 Accordingly the Court held in several cases that they had no 
 
 the judge's opinion that the verdict was perverse, Quinlane v. Mumane, 18 
 L. R. Jr. C. L. 53. 
 
 (i) Hears v. Griffin, 1 M. & Gr. 706 : Kilmore v. Abdoolah, 27 L. J. Ex. 307. 
 
 (k) Richards v. Rose, 23 L. J. Ex. 3 ; 9 Ex. 218. See Kelb/ v. ,S7(e?'- 
 lock, L. R. 1 Q. B. at p. 695 ; 35 L. J. Q. B. at p. 212 ; per MeUor, J. : 
 Falvey v. Stanford, L. R. 10 Q. B. 54 ; 44 L. J. Q. B. 7. 
 
 (I) Anon., Salk. 647 : Lethhridge v. Mytton, 2 B. & Ad. 772, 
 
 (m) Farrant v. Olmius, 3 B. & A. 692. 
 
 (n) Russel v. Ball, Barnes, 455. 
 
 (o) Lainrj V. Stone, 2 M. & R. 561 : Du Belloix v. Waterparh, 1 D. & R. 
 16 : Cameron v. Smith, 2 B. & A. 308. 
 
 (p) Baker v. Brown, 2 M. & W. 199. See further as to setting aside a 
 judgment on the ground of mistake in claiming too little, Cannan v. Reynolds, 
 5 E. & B. 301 ; 26 L. J. Q. B. 62. 
 
 (q) Morrish v. Murrey, 13 M. & W. 52 : Booth v. Clive, 10 C. B. 827. 
 
 (r) Barker v. Dixie, 2 Stra. 1051.
 
 NEW TRIAL. 585 
 
 right to interfere, where there had been no misbehaviour on 
 the part of the jury, and there was no measure of damages by 
 which they could correct the mistake (.s-). It is now, however, 
 well acknowledged, that whether in actions for malicious prose- 
 cution, words, or any other matter, if the damages are clearly 
 too large, the Court will send the inquiry to another jury (/). 
 But it must appear from the amount of damages, as compared 
 with the facts of the case laid before the jury, that the jury 
 must have acted under the influence either of undue motives, 
 or of some gross error and misconception on the subject (w). In 
 Ireland, it has been said in several cases, that to render damages 
 excessive the amount should be such that no reasonable propor- 
 tion exists between it and the circumstances of the case {v). 
 And in a case of uncertain damage, where matters have been 
 left properly for all the parties to the sound discretion of the 
 jury, in a subject of which they are competent and proper 
 judges, a new trial will not be granted, " because if the Court 
 had been to fix the damages, they might have given less " (x). 
 The case must be very gross, and the damage enormous, for the 
 Court to interpose (y). And where the judge has recommended 
 the jury to give nominal damages, and they award substantial 
 damages, the verdict cannot merely on this account be treated 
 as perverse (z). 
 
 The modern rule of practice has been stated to be that if the 
 damages were so large that no jury could reasonably have 
 given them the verdict will not be allowed to stand, but if twelve 
 reasonable men might have given them the verdict will not be 
 interfered with (a). 
 
 Every case must of course be judged upon its own peculiar 
 
 (s) Wilford V. Berkeley, 1 Burr. 609 : Duherleij v. Gunning, 4 T. R. 651. 
 
 {t) Per Mansfield, C. J., Ihxolctt v. Crouchley, 5 Taunt. 277 : Gilbert v. 
 Burtenshaw, Cowp. 230: Corkery v. Ilickson, 10 Ir. Rep. C. L. 174. 
 
 {u) Per Lord Ellenborough, Chambers v. Caulficld, 6 East, 256 : Lambkin 
 V. S. E. Ry., 5 App. Ca. 352. 
 
 {v) McGrath v. Bourne, 10 Ir. R. C. L. 160 Ex. : Beattie v. Moore, 2 
 Ir. L. R. 28 Ex. D. : Corkery v. Hickson, 10 Ir. C. L. 174 Q. B. : Harris v. 
 Arnott, 26 L. R. Ir. C. L. 55, 
 
 (x) Gilbert v. Berkinshaw, Lofft, 771, 774. 
 
 [y) Per Yates, J., 3 Wils. 63; and see per Cur. 2 Wils. 250 ; and per 
 Pratt, C. J., 2 Wils. 207. 
 
 (z) Chilvers v. Greaves, 5 M. & Gr. 578. 
 
 (a) Prced v. Graham, 24 Q. B. D. 53; 59 L. J. Q. B. 230 (C. A.). 
 There the jury gave 500^. for a defamatory letter written by the defendant to 
 the plaintiij''s wife.
 
 586 NEW TRIAL. 
 
 facts. It may be useful, however, to give a few instances of 
 the manner in which the Courts formerly exercised their discre- 
 tion upon this point. 
 Cases in wliicli Where custom-house officers entered the plaintiff's dwelling- 
 ilfUecf*^^'' house in the day, without a constable, but with a writ of 
 Trespass. assistance, to search for uncustomed goods, and stayed in the 
 
 house about an hour, but broke open no door, or lock, or bolt, 
 and did little or no damage, sums of 1007. and 200/. were held 
 not to be excessive. Gould, J., said, " The entering the plain- 
 tiflF's house under colour of legal authority aggravates the 
 trespass " (b). In trespass for forcible entry into a dwelling- 
 house, and remaining there three or four days under colour of 
 H distress for rent, it appeared that one defendant claimed a 
 title to the property, which he chose to assert in this manner, 
 though without a shadow of right. The others were a broker 
 and assistants. The Court refused to set aside a verdict for 
 1,000/. (('). Trespass against a landlord for injury to his 
 tenant's crops, by entering to cut and remove timber without 
 applying for leave. The whole value of the crops was 200/., 
 and the jury found a verdici for 300/. The Court refused to 
 set it aside. Maule, J., said, " If we were to hold that the 
 jury, in estimating the damage for an unlicensed trespass of 
 this sort, are to be restrained to exactly the amount of the 
 injury sustained by the plaintiff, it would in effect be placing 
 the wrong-doer upon precisely the same footing as one who 
 enters with the owner's permission. Besides, it is to be 
 observed that this was not the case of a single act of trespass, 
 but of a series of trespasses, persisted in day after day, and for 
 several weeks, and that this was done for the pecuniary benefit 
 of the defendant " (d). So where the defendant, a banker and 
 M.P., persisted in shooting upon the plaintiii's land, though 
 requested to desist, and used insolent language, 500/. was held 
 not to be excessive (e). 
 Assault. Where the defendant struck the plaintiff in a quarrel, in 
 
 the course of which the plaintiff had called him a scoundrel, 
 
 (6) Bruce v. Rmclins, 3 Wils. 61 : Eedshaiu v. Brook, 2 Wils. 405. See 
 also Thomas v. Harris, 27 L. J. Ex. 353. 
 
 (c) Bland v. Bland, 1 H. & W. 167. See Grego^-y v. Cotterell, 22 L. J. 
 Q. B. 217. 
 
 (d) WilUams v. Carrie, 1 C. B. 841, 847. 
 
 (e) Merest v. Harvey, 5 Taunt. 442.
 
 NEW TRIAL. 
 
 587 
 
 a verdict for 200/. was sanctioned (/). And Heath, J., said, 
 " he rememhered a case, where a jury gave 500/. damages for 
 merely knocking a man's hat off, and the Court refused a new 
 trial" (^). 
 
 In the celebrated cases of arrest under general warrants, False im- 
 300/. was held not to be excessive in an action against the prisonnie«t. 
 king's messenger, who had treated the plaintiff with great 
 civility, and only detained him six hours {/i). And in a more 
 aggravated case of the same nature, where the plaintiff was 
 kept in custody for six days, a verdict for 1,000/. was sus- 
 tained ('/). So 200/. damages were held not to be too great 
 where the plaintiff had been kept a night in custody on a 
 charge of felony (/;:). And where the plaintiff in an action for 
 false imprisonment was a native of Minorca, and the defendant 
 was the governor, .3,000/. damages was allowed (/). 
 
 Where the defendant, an attorney, brought seven indict- Malicious 
 ments for felony against his clerk, keeping the matter secret P'°'^^^'' '°"' 
 from him, and gave no evidence when the case came on, upon 
 which the plaintiff sued him for a malicious prosecution, it 
 Avas held that 2,000/. damages was not excessive ; and that it 
 was no excuse that the defendant had obtained counsel's 
 opinion advising the prosecution, when the case laid before 
 him was not rightly stated. Mansfield, C.J., asked, " Could 
 anyone say that any rational man of character would for 
 2,000/. put himself in this situation ? If not, the damages are 
 not excessive "(m). And in another case, where the plaintiff 
 was arrested and indicted for felony, out of mere revenge, and 
 without a shadow of pretence, 10,000/. was allowed («). 
 
 It has been said in cases of seduction, that actions of that Seduction- 
 sort are brought for example's sake, and that although the 
 plaintiff's loss may not really amount to the value of 20s., yet 
 the jury do right to give liberal damages (o) ; accordingly 
 200/. was allowed in one case, though the defendant had been 
 
 (/) Grnj V. Grant, 2 Wils. 252 ; D^lcJcer v. Wood, 1 T. R. 277. 
 
 iff) 5 Taunt. 44-3. 
 
 (h) Huckh V. Money, 2 Wils. 205. 
 
 (i) Beardmore v. Carrinqton, 2 Wils. 244. 
 
 (k) Edqdl V. Francis, 1 k. &. Gr. 222. 
 
 {I) Fabrif/as v. Mostyn, 2 W. Bl. 929. 
 
 (m) Hewlett v. Crudiley, 5 Taunt. 277. 
 
 (n) Leith v. Pope, 2 W. Bl. 1327. 
 
 (o) Per Wilmot, C. J., Tullidrje v. Wade, 3 Wils. 18.
 
 588 
 
 KEW TRIAL. 
 
 Breach of 
 promise of 
 marriage. 
 
 Trover. 
 
 Mistake in 
 assessment. 
 
 placed in circumstances of peculiar temptation by the female's 
 own mother (p). 
 
 Sums of 400/. and 3,500L have been allowed in actions for 
 breach of promise of marriage, according to the wealth of the 
 defendants (q). 
 
 In trover for a diamond necklace, part only of which was 
 traced into the defendant's hands, the Court refused to set 
 aside a verdict for the whole value, as the defendant's affidavit 
 did not allege that the whole of it had never been in his pos- 
 session (r). And so in an action for an apothecary's bill, con- 
 sisting of a great number of items, a rule for a new trial was 
 refused, where the jury had given a verdict for the whole sum 
 claimed, though every item was not proved, evidence having 
 been given as to some of them (s). But a contrary decision 
 was given in another case, where the claim was for work and 
 labour, and an entire verdict given, several of the items being 
 unsustained (/). 
 
 Where the plaintiff is willing to rectify any mistake in the 
 assessment, the Court will not set aside the verdict if it can 
 possibly be sustained, as this would be to allow the defendant 
 a fresh chance of a finding upon the issues, under the pretext of 
 objecting to the amount of damages (u). Nor will they, upon 
 an application for a new trial on the ground of excessive 
 damages, hear affidavits of the defendant's witnesses to explain 
 or add to anything said by them at the trial (x). 
 
 Where an excessive verdict is given, it is usual for the judge 
 to suggest to counsel to agree on a sum, to prevent the neces- 
 sity of a new trial (?/). And in the absence of agreement the 
 Court has power, with the consent of the plaintiff', to reduce the 
 damages to a reasonable sum instead of ordering a new trial (z). 
 It would seem also from what was said in the case in which 
 this was recently decided, that where the damages are too small, 
 
 (p) Bennett v. Allcott, 2 T. R. 166. 
 
 (q) Harrison V. Cage, Garth. 467 : Woodx. Hard, 2Bing. N. C. 166. 
 
 (r) Mortimer v. C'radock, 12 L. J. C. P. 166. 
 
 (s) Wheeler V, Sims, 5 Jur. 151. 
 
 (t) Brewer v. Jackson, 5 Jur. 701. 
 
 (u) Thomas v. Fredericks, 10 Q. B. 775 : Belt v. Lawes, 12 Q. B. D. 356. 
 
 (x) Phillips V. Hatfield, 8 Bowl. 882. 
 
 {y) 7 Bing. 320. 
 
 (z) Belt V. Lawes, 12 Q. B. D. 356 ; 53 L. J. Q. B. 249. See arite, p. 581.
 
 NEW TRIAL. 
 
 589 
 
 the Court may with the defendant's consent increase them, 
 although the plaintiff asks for a new trial (zz). 
 
 The following are instances of a contrary discretion Cases in 
 being exercised by the Court. Where the action was for ^riai wL'^^^ 
 diverting plaintiff's water-course, and 3,0007. was given, the allowed. 
 Court set it aside as being excessive and not warranted by 
 the evidence ; it being a mere question of property as stated 
 on the record, where there was something to measure the 
 damages by, namely, the deterioration of the property 
 itself, and therefore not like cases of personal injuries. 
 Though they said that even in a case like the present, which 
 was attended with several circumstances of aggravation, they 
 would not measure the damages which the jury had given in a 
 nice balance ; but making a very liberal allowance in that 
 respect, they were still bound to take care that the verdict 
 should not greatly exceed the damage proved. They ordered 
 the former verdict, however, to stand as security for the damages 
 that might be given on the second trial (a). And where, in an 
 action for assault, it appeared that the plaintiff was servant to 
 the defendant, and that on receiving a slight blow for imper- 
 tinent behaviour he had fallen upon his master, and beaten 
 him violently, a verdict of 40s. was set aside as excessive (b). 
 In a later case an importunate beggar having refused to quit 
 defendant's house, defendant had him arrested by a constable, 
 and kept in custody one night at an inn. The next day he 
 was brought again before the defendant, and said he must have 
 some money, upon which defendant told him he might have 
 two sovereigns, or go before a magistrate. Plaintiff consented 
 to take the money, but said he must have something more to 
 pay his expenses, upon which defendant gave him half-a-crown 
 and some refreshment, and plaintiff went away. He sued 
 defendant, and recovered 1007., no plea of accord and satisfac- 
 tion having been pleaded. A new trial was granted, on 
 the ground that he had himself set a limit upon his demand (c). 
 
 The Courts formerly made it a rule not to grant a new trial New trial 
 when the verdict was for less than 20/., unless they could 7''^®"'® ""^^l^?^ 
 
 ' •' IS under 201. 
 
 (zz) lb., jier Brett, M.R., at p. 358. 
 
 {a) Pleydell v. Earl of Dorchester, 7 T. K,. 529 
 
 (6) Jones v. Sparrow, 5 T. R. 257. 
 
 (c) Price y, Severn, 7 Bing. 316.
 
 590 NEW TRIAL. 
 
 grant it without costs (d). The costs now, however, are in the 
 discretion of the Court. The rule never did apply where the 
 matter in dispute involved a question of permanent right (e), 
 nor where the verdict was perverse (/), nor did it apply to cases 
 of replevin (r/). And in a recent case, where the verdict was 
 under 20/., a new trial was granted, on the ground that the 
 judge who tried the cause was dissatisfied with the verdict, 
 and that there was an uncontradicted affidavit that one of the 
 jurymen had misconducted himself, by expressing a strong 
 opinion against the defendant, when he had not heard his 
 case, but only that of the plaintiff (h). Nor did the rule 
 extend to cases tried before an inferior court on a writ of 
 trial (i), in which the rule was to grant a new trial unless the 
 damages were under 5/. (k). 
 
 A judgment may be maintained as to part, and reversed as 
 to damages (/). 
 
 (d) V. Phillips, 1 C. & M. 26 : Woods v. Pope, 1 Bing. N. C. 4fi7. 
 
 (e) Turner v. Lew'is, 1 Chitt. Kep. 265 : AUum v. BouUbee, 9 Ex. 73ii ; 
 overruling Soiccll v. (Jhamphm, 6 A. & E. 407. 
 
 (/) Freeman v. Price, 1 Y. h J. 402. A perverse verdict would seem to 
 be one which is contrary to the direction of the judge, there being no disjiute 
 as to the facts : hqq per Jervis, C. J., in Hawkins v. Alder, 18 0. P.. 6 ID ; 
 and per Brainwell, B., in Adams v. Midland Rj. Co., 31 L. J. Ex. 35. 
 
 {g) Edgson v. Cardwell, L. R. 8 C. P. 647. 
 
 (h) Alluni V. Boulthee, uhi sup. 
 
 (J) Taylor v. Helps, 5 B. & Ad. 1068. 
 
 {k) Packham v. Ncvmicin, 1 C. M. (Sc U. 585 : Fleetwood v. Taylor, 6 
 Dowl. 796. 
 
 [1) Frederick v. Lookup, 4 Burr. 2018 : Cuming v. Sibly, ibid. 2439 ; aul 
 see Ord. 39, R. 7.
 
 CHAPTER XXI. 
 
 DAMAGES IN ACTIONS FOR INJUNCTIONS OR SPECIFIC 
 PERFORMANCE. 
 
 The Chancery Amendment Act, 1858 (21 & 22 Vict. c. 27), 21 & 22 Vict, 
 commonly called Lord Cairns' Act, enacted that in all cases in S; ?'' }'1'^'^ 
 
 •^ ' . (Jairns Act. 
 
 which the Court of Chancery had jm-isdiction to entertain an 
 
 application for an injunction against a breach of any covenant, 
 contract or agreement, or against the commission or continu- 
 ance of any wrongful act, or for the specific performance of 
 any covenant, contract, or agreement, it should be lawful for 
 the same Court, if it should think fit, to award damages to the 
 party injured, either in addition to or in substitution for such 
 injunction or specific performance (a). 
 
 Though this Act has been repealed by the Statute I^aw 
 Revision Act, 1883, the powers given by it to the Court of 
 Chancery are comprised and extended in the powers given by 
 the Judicature Acts to the High Court of Justice, to the 
 Chancery Division of which actions for specific performance 
 are assigned (&). 
 
 The power of a court of equity to give damages under Lord 
 Cairns' Act was considered not to be confined to cases in which 
 the plaintiff could recover damages at law (c) ; and the damages 
 awarded differed from those which could be obtained at law in 
 being given by way of compensation for permanent injury once 
 for all, or for injury continued after the date of the writ, not 
 as at law where successive actions might be brought and 
 damages recovered Mies quoties {d). 
 
 (a) 21 & 22 Vict. c. 27, s. 2. 
 (6) Judicature Act, 1873, s. 34. 
 
 (c) Eastwood v. Lever, 4 De (t. J. & S. 114 ; 33 L. J. Ch. 355. 
 
 (d) Per Lord Cranworth, C. . .'^Y'7A■es V. Citij Offices Co., Limited, 13 L. T. 
 N. S. 81 : Fritz v. Hobson, 14 Ch. D. 542 : Davenport v. Rylands, L. II. 
 1 Eq. 302 ; 35 L. J. Ch. 204.
 
 592 ASSESSMENT OF DAMAGES IN THE COURT OF CHANCERY. 
 
 This principle was adopted in the rules of 1883, by one of 
 which it is provided that in respect of any continuing cause of 
 action the damages are to be assessed down to the time of the 
 assessment {e) ; but there is no express rule that damages may 
 be given in compensation for permanent injury. 
 
 The discretion to award damages instead of granting an in- 
 junction, is a discretion to be exercised according to the facts 
 of each particular case. The Court will not necessarily force a 
 plaintiff to sell to the defendant a licence to commit a wrong. 
 For example, where a defendant had built so as to obstruct the 
 plaintiff's ancient lights, and the expense of restoring things to 
 their original condition far exceeded the pecuniary value of the 
 plaintiff's loss, an injunction was nevertheless granted (/). 
 
 Acquiescence will be a bar equally to a claim for an injunc- 
 tion and for damages {(j), and where damages would be 
 nominal only the action may be dismissed altogether (A). 
 
 Damages will not be given where, from lapse of time, specific 
 
 jicrformance could not, according to the established practice of 
 
 the Court of Chancery, be given (/), nor where the claim for 
 
 specific performance fails through the plaintiff 's own act {Tc). 
 
 Damages Damages were awarded although not specifically asked for 
 
 under general in the bill, the general prayer . for relief being considered 
 
 Vc\iS. °^ sufficient (/). 
 
 The practice will for the future be regulated by the orders 
 and rules made under the Judicature Acts. It is probable that 
 leave would be given to pay money into Court in any case in 
 which the Court, in lieu of injunction or specific performance, 
 directed an assessment of damages («?). But such an action 
 would not necessarily be an action brought to recover damages 
 within the general powers of Order 22, which regulates payment 
 
 (c) Ord. 36, R. 58. 
 
 (/) Greemvood v. Hornscv, 33 Ch. D. 470 ; 55 L. J. Ch. 917. 
 
 (g) Sayers v. CoUyer, 28 Ch. D. 103; 54 L. J. Ch. 1. 
 
 (h) lb. 
 
 (i) Lavery v. PurseJl, 39 Ch. D. 508 ; 57 L. J. Ch. 570. 
 
 (k) Hipgrove v. Vase, 28 Ch. D. 356 ; 54 L. J. Ch. 399. 
 
 (l) Catton V. Wyld, 32 ]5eav. 266. tsee, further, as to the Act, and for 
 cases in which the Court, in its discretion, awarded or refused damages, 
 Morgan's Cliancery Acts and Orders, 261, 4th ed. ; Kerr on Injunctions, 221 ; 
 Joyce on Injunctions, 593 ; and Daniell's Chancery Practice, vol. i., p. 946, 
 5th cd. 
 
 [m] See the repealed Consolidated Orders XLI. R. 40.
 
 ASSESSMENT OF DAMAGES IN THE COURT OF CHANCERY. 503 
 
 into Court {71). Issues of fact arising in actions in the Chancery 
 Division can be ordered to be tried at the Assizes, or at the 
 sittings in London or Middlesex (0). Applications for new 
 trials will now be to the Court of Appeal (;;). 
 
 (n) See Mcholls v. Evans, 22 Ch. D. 611. 
 
 (0) Orel. 36, R. 44. 
 
 ( jO Supreme Court of Judicature Act, 1890 (53 & 54 Vict. c. 44), s. 1. 
 
 M.D. Q Q
 
 INDEX. 
 
 ABANDONMENT, when loss is total without. See JIahixe Insxtrance, 350 
 
 when necessary to make loss total. See Maiuxe Insur- 
 ance, 351 — 354 
 notice must be given, except in case of freight, 354 
 effect of ineffectual notice, where subsequent total loss, 354 
 valid notice, when loss afterwards becomes partial, 
 357 
 
 ACCEPTOR, liability of. See Bills of Exchange, 247 
 
 ACCIDENT, damages on an insurance against, 343 
 action for injury caused by, 453 
 
 when brought by executors. See Executors, 514 
 limited liability of shipowners. See Carriers, 305 — 308 
 
 ACCOUNT STATED, some item must be proved to sustain action on, 7 (n) 
 
 ACTIONS. See Costs of Actions. 
 
 ADJUSTMENT, example of, 372 
 
 at foreign jtort, when binding on underwriters, 364 
 
 ADULTERY, damages in suits for dissolution or judicial separation, 489 
 
 claims are to be tried on same principles as actions formerly, 
 489 
 general grounds of damages in action for, 490 
 entire separation a bar to an action for, 491 
 
 otherwise when partial, or not by deed, 491 
 evidence of terms upon which the parties lived ; when admissible, 
 
 118, 491 
 infidelity of husband, 492 
 previous character of wife, 492 
 negligence of husband, 492, 493 
 solicitations by wife, 493 
 wealth of defendant, 493 
 
 former recovery against another defendant for adultery, 494 
 application of damages iu divorce suits, 494 
 
 AGENT. See Principal and Agent. 
 
 AMENDMENT of postea under old procedure, 578 
 
 present practice as to entering the findings, 578 
 
 and amending the entries, 578 
 
 must have been in furtherance of intention of jury, 579 
 
 Q Q 2
 
 596 INDEX. 
 
 ANIMALS, damages from breach of warranty of, against contagious disease, 20, 
 196 
 not recoverable when no warranty, 21 
 
 unless perhaps under Contagious Diseases (Animals) Act, 22 
 damages from acts of, 62 
 
 where there is breach of warranty, expenses of keep may be re- 
 covered, 193 
 limitations as to value of cattle in actions against carriers, 311 
 in actions for conversion of, defendant cannot deduct kcej) from 
 
 value, 398 
 vendee may recover for keep in action on warranty, 193 
 no action lies for breach of acts relating to infected, 497 
 action for driving distress into another county, 426 
 See Cattle ; Dor.s. 
 
 ANXUITIES, interest is not recoverable upon arrears, 163 
 
 APPORTIONMENT, salary now within statute of, 232 
 See Eext, 258—262 
 
 APPRAISEMENT, selling without, 425, See Illegal Distress. 
 
 ARBITRATION, submission to, by executor, 525 
 
 ARREST. See False Impkisoxment, 451—453 
 
 ASSAULT. See False Impelsoxmext, 451—453 
 Negligexce, 453 
 
 ASSESSMENT OF DAMAGES, 560-576 
 
 at trial by jury, 560 
 judgment by confession, 56 
 reference to master, 561 
 writ of inquiry, 562 
 judgment by default, 564 
 
 on ]ioint of law, 565 
 damages on several counts, 566 
 
 or on same count containing several de- 
 mands, 566 
 distinction in cases of slander, 567 
 new procedure, 568 
 
 in detinue, damages should be assessed sepa- 
 rately, 406—568 
 iudgment against several defendants, 568 — 573 
 where some plead and others pay money 
 into court, 571 
 all make default, 571 
 some appear and others make de- 
 fault, 571 
 new procedure, 573 
 
 effect of former recover}' against one dcfrn- 
 dant, 573 
 claim limits the damages recoverable, 142 573 
 double and treble damages, 574 
 omission of jury to assess, 574 
 writ of inquiry, 574 
 new trial, 576
 
 INDEX. 597 
 
 ASSIGN, covenant not to, 281 
 
 ASSIGNEE of a lease, liis liability for breacli of covenants, 266, 271, 32 
 action by, against assignor, 98 
 by assignor against, 326 
 of a debt takes subject to debtor's riglit of set-off, 132 
 
 ATTORNEY, may recover unless charges have been uselessly incurred, 113 
 
 may set off bill though not delivered a month before action, 121 
 
 contract with is an entire one, 221 
 
 only liable for negligence to the extent of loss resulting, 6, -16 i 
 
 may show in bar of action that there has been none, 7, 461 
 prospective damages against, 464 
 no fresh suit on accrual of fresh loss, 104 
 damages in case of record withdrawn, 465, 486 
 
 where cause is taken as undefended, 465 
 costs as between attorney and client, 86 
 
 AVERAGE, GENERAL, how defined, 365 
 
 ship, freight and goods carried for ti'affic, contribute, 
 
 365 
 deck goods, 366 
 bullion and jewels, unless carried on the person, or as 
 
 part of luggage, 366 
 provision and stores do not, unless carried as freight, 
 
 366 
 goods carried by mariners, unless in lieu of wages, 
 
 366 
 mariners' wages do not, unless in case of ransom, 366 
 goods sacrificed contribute, 366 
 oulj- property exposed to risk contributes, 367 
 freight must have been pending at time of sacrifice, 
 
 367 
 valuation of loss in case of goods or valuable articles, 
 368 
 
 deck goods, freight, ship, 369, 370 
 when sale of goods for repair of ship constitutes an 
 average loss, 370 
 
 how valued, 303, 370 
 effect of subse(iuent loss of ship, 369 
 money raised for general safety, 370 
 mode of valuing property saved in case of ship, 371 
 in case of goods, 371 
 in case of freight, 371 
 usual place of adj ustment, 371 
 example of adjustment, 372 
 
 AVERAGE, PARTICULAR, what is a total loss of goods free from, 355 
 
 when a sale of goods for repairs amounts to a, 370 
 
 AWARD, interest upon amount of, 160 
 
 BAIL, actions by, against their principal, 332 
 
 BAILEES, may recover full value of goods on policy of insurance, 348 
 will be trustees of residue above interest for the owners, 348
 
 598 INDEX. 
 
 BAILEES— contimicd. 
 
 will, if responsible to the o^vTier, recover in action for conversion 
 whole value ngainst a stranger, 397 
 
 otherwise only for bailee's personal injnrj% 397 
 only amount of interest against owner, 397 
 
 BALLOT ACT, damages for breach of duty of presiding officer, 7 
 
 BANKRUPTCY, mutual credit in. See Set-off, 134... 141 
 
 BANKRUPTCY, TRUSTEES IN, actions by, 5S2— 537 
 
 can only sue in respect of loss to the estate, 532 
 may sue for breach of contract to employ, 533 
 
 not for a mere personal -wTong to the bankrupt, 533 
 or trespass to lands or goods in his possession, 534 
 unless some pecuniary loss was annexed to it, 534 
 or it has caused injury to the estate, 534 
 nor for personal labour after bankruptcy, 536 
 
 unless a large sum has been accumulated by it, 536 
 or mixed with other debts for which they can sue, 536 
 not necessary to prove substantial damage, 534 
 
 loss to the estate is the measure of damage, 534 
 
 unless where the right to a s])ecific sum has once vested, 
 535 
 
 BEGIN, right to, when plaintiff proceeds for unascertained damages, 577 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES, 
 
 damages given by Bills of Exchange Act, 1882. ..243 
 
 interest always allowed on up to time of .signing judgment, 104, 244 
 
 may be withheld, in case of laches, if not expressly reserved, 
 
 244 
 not given while note in hands of alien enemy, 244 
 where expressly reserved, runs from <late, 244 
 and under the new act upon principal and interest at maturity, 
 245 
 
 though no action could have been originallv maintained, 
 
 244 
 if given as a legacy, interest Avould run from maker's 
 death, 244 
 where not reserved, interest runs from maturity, 245 
 if payable on demand, from demand, 245 
 liability of drawer, indorser, or guarantor, for interest, 
 245 
 when note payable bj' instalments, 246 
 does not run after a tender, 163, 246 
 must be included in amount paid into court, 246 
 cannot be recovered from maturity of bill unless produced, 
 
 246 
 calculated at current rate of place whose laws govern payment, 
 246 
 
 Icr loci sohitimiis is the lex loci contractvs, 247 
 hence different liabilities of acceptor, drawer, and in- 
 dorser, 247 
 where expressly reserved, governed by lex loci confrctctus, 
 
 164, 247 
 when goods are to be paid for by bill, 158
 
 INDEX. 599 
 
 BILLS OF EXCHANGE AND PROMISSORY 'NOTES— coniimicd. 
 
 effect of want or failure of consideration between immediate parties, 249 
 between remote parties, 249 
 failure of consideration no answer, when once executed. 250 
 or when contract still open, 251 
 or when only partial, 251 
 
 but partial want of consideration may be set up, 251 
 re-exchange, drawer, indorser and acceptor liable for, 252 
 protest, when allowed, 252 
 
 expenses of noting, and postage, when recoverable, 253 
 costs of former action af,'ainst plaintitf not recoverable, 88 
 transferor, without indorsement, not liable for, 253 
 
 unless bill is not what it purports to be, 253 
 given to wife during coverture may be treated by husband as joint or 
 several property, 124 
 
 conseqiiences as to set-off, 124 
 mutual credit constituted by taking, accepting, or endorsnig, 135 
 or by an agreement to accept, 136 
 but not by an agreement to indorse, 136 
 nor by holding a bill or note as trustee for another, 137 
 action for goods sold to bo paid for by bill, not maintainable during 
 time that it would have been current, 170 
 
 but special action for not giving may be brought at once, 170 
 when paid for in advance by bill, which is dishonoured, 189 
 whether it will support a count for money paid by surety, 330 
 damages for the conversion of, 381, 391 
 
 BOARD OF TRADE, inquiry by, before action against owner of ship in case of 
 loss of life or personal injury, 307 (n) 
 
 BOND, provisions of 8 & 9 W. III. c. 11. See Debt, 237—242 
 
 no more than penalty and costs can be recovered upon, 241 
 liability of sureties upon replevin bonds, 327, 456 — 459 
 will not support a count for money paid by a surety, 330 
 set-off of joint and several bond, 123 
 
 BREACH OF PROMISE OF MARRIAGE, 482—486 
 motive a ground of damage, 43 
 \'indictive damages may be given, 482 
 wealth of defendant an aggravation, 483 
 seduction an aggravation, 483 
 mitigation of damages, bad character, or grossness of manners, 118, 
 
 485 
 actions by or against ])ersonal representatives, 484 
 special damage to jiroperty, 485 
 evidence in bar of action, 485 
 
 BREACHES, assignment of under 8 & 9 W. III. c. 11. See Debt, 237-242 
 
 BREAKING OPEN OUTER DOOR, effect of in action against sheriff, 416 
 difference between fi. fa. and distress, 418 
 
 BROKER, set-off of debt from, in action by principal, 128 
 
 liable for negligence in effecting insurance, 539, 540 
 
 BUILD, covenant to, 274 
 
 CAIRNS', Lord, Act. See IxjrxcTiox ; Si-ecific Performance.
 
 600 INDEX. 
 
 CALLS. See Public CoMrAXY. 
 
 CAMPBELL'S, Lord, Act. See Executor. 
 
 CARGO, actions for freight of, 285—290 
 
 for not supplying, 290—295 
 
 for not carrying, 276, 296—299 
 
 for delay in carrying, 299 
 
 for loss or injury to, 301—306. See Cariueks. 
 
 CARRIERS, 284—313 
 
 I. actions by for cost of carriag'^, 284 — 289 
 jiacked parcels, 2S4 
 
 where entire ship engaged at a specified rate, 285 
 when payment is to be made by ton, 285 
 when part has not been delivered, 286 
 weight, how calculated, 286 
 when cargo changes in bulk or weight, 286 
 where freight is hxed with reference to certain articles, 287 
 evidence in mitigation of damages, 289 
 
 time during which vessel was under repair, 289 
 port and pilotage charges, 289 
 value of missing goods can not be set off, 289 
 except by counter claim, 290 
 actions for not supplying a cargo, 290 — 296 
 measure of damage, 290 
 
 mode of calculating amount which would have been earned, 290 
 captain must try to earn freight after breach, 290 
 
 but not before breach, 291 
 when freighter is left at liberty as to species of cargo, 291 
 
 not bound to supply ballast, 291 
 cargo must be loaded according to custom of port, 292 
 
 stipulation to pay a fixed sum in default of supplying cargo, 
 293 
 
 right of shipowner to retain freight afterwards earned, 293 
 when stipulated sum has not become due, 294 
 profit made by shipowner with consent of charterer, 295 
 claims for detention of ship, 295 
 demurrage clause, 295 
 
 delay caused by strike, 295 (n) 
 dangerous goods, 296 
 IL actions against carriers, 296 — 315 
 for not taking a cargo, 296 
 
 damages must be the immediate result, 297 
 
 costs of former action not allowed, 297 
 
 natural result of breach, 47, 297 
 
 increased price of goods in place of those which ought to 
 
 have been brought, 297 
 malicious refusal to carry, 298 
 for not carrying passengers, 298 
 
 expense of substituted conveyance may be recovered, 298 
 if it was reasonable for the passenger to take another 
 conveyance, 299 
 and expenses incurred during detention, 299 
 mere inconvenience a ground of damage if capable of assess- 
 ment, 299 
 but not circumstances which could not have been foreseen, 
 299 
 for delay in carrying passengers or goods, 14, 18, 299 
 
 whole value of perishable goods may be recovered, 299
 
 INDEX. 601 
 
 CARRIERS— continued. 
 
 and the fall in market value of goods sent by land or consigned 
 
 for immediate sale, 14, 299 
 Lut not of goods sent by long sea voyage, 16, 300 
 nor loss of special contract, 300 
 unless by agreement, 32, 300 
 it is doubtful whether liability arises iVoiu mere commuuicatiou 
 
 of special circumstances, 30 
 in the absence of a contract to undertake liability, 30 
 damages for loss of season, 14 
 reasonable expenses may be recovered, 18, 29, 300 
 
 incurred in searching for the goods, 300 
 the delay must be the proximate cause of the injury, 300 
 otherwise damage is too remote, 300 
 penalty in charter-party, 301 
 more or less than penalty may be recovered, 301 
 for loss or injury to goods, 301 — 315 
 
 no difference that there is some third party liable, 301 
 
 where vessel has been lost, 302 
 
 where cargo lias been delivered to a wrong person at its place of 
 
 destination, 302 
 freight paid in advance, 302 
 where goods have been sold for repairs of ship, 303, 370 
 
 which has never reached its destination, 304, 370 
 where plaintiff lias only a limited interest in goods, 303 
 wliere there is no evidence of value, 302 
 where goods cannot be replaced, 18 
 obligation on shipowner to protect goods, 304 
 undue preference by railway company to one customer over 
 
 another, 305 
 liability of shipowners for loss caused by pilot, 305 
 or by fire or robbery, 306 
 limited as to liability for loss of life or personal injury to 
 
 £15 per ton of ship's tonnage, 306 
 as to damage to goods to £8 per ton, 307 
 
 costs beyond this amount may be recovered, 307 
 
 and interest, 307 
 when value of goods must be stated, 307 
 
 foreign shipment, 307 
 act does not apply to inland navigation, 308 
 liability of laud carriers at common law, 308 
 effect of notice by them, 308 
 Carriers Act, 308—311 
 cases to which Act does not apply, 310 
 felony by a servant, 310 
 gross negligence, 310 
 special contract, 310 
 
 by railway or canal companj'-, must be reasonable, 311 
 and signed by party to be bound, 311 
 cattle, limitation as to value of, 311 
 loss, what amounts to, 313 
 value must be declared, 313 
 
 fraud in concealing, 314 
 where contract is to carry a particular sor of goods, 314 
 
 what is passengers' luggage, 314 (n) 
 telegraphic messages, negligence in transmitting, 315 
 See Contract, Damages. 
 
 CATTLE, limitation of liability of carriers for, 311 
 Sec Animals ; Easements.
 
 C02 INDEX. 
 
 CHANCERY DIVISION 
 
 damages in suits for injunction or specific performance, 591 
 provisions of 21 & 22 Vict. c. 27... 591 
 
 continue under Judicature Acts, 591 
 payment into court, 592 
 new trial, 593 
 
 wliat damages recoverable, 592 
 damages under general prayer for relief, 592 
 future practice, 592 
 See Injunction ; Specific Perfohmance. 
 
 CHARACTER, evidence of in aggravation or mitigation of damages, 449, 47 
 480, 486, 488, 492 
 
 CHARTER PARTY. See Cahiueks. 
 
 CHARTERS, damages in trover and detinue for, for conversion or detention of, 
 391, 407 
 
 CIRCUITY OF ACTION, pleas in avoidance of, 134, 277 
 
 CLAIM limits the damages recoverable, 142, 573 
 
 COLLISION, damages for, 110 
 
 no deduction for insurance money, 110, 415 
 detention resulting from, 411 
 
 COMMISSION AGENT, 
 
 damages against for purchasing inferior goods, 539, 542 
 
 COMMON, actions for injury to right of. See Ease.ments. 
 
 COMPANY. See Public Company. 
 
 COMPENSATION, under Lands Clauses Acts, 439 
 
 COMPROMISE, party indemnified is entitled to, 32S 
 etlect of notice to surety, 329 
 
 CONFESSION. See Judgment by Confession. 
 
 CONSIDERATION, absence of, in a bill or note, 249 
 failure of, 250 
 
 CONSPIRACY, damages, when too remote, 62 
 
 trade combinations, not illegal, 8, 9 
 
 CONTINUING CAUSE OF ACTION, damages for, 568 
 
 CONTRACT, damages for breach of must be the primary and natural result, 10 
 unless ulterior consequences were contemplated, 11 
 
 but quiiere as to contemplated breaches, 23 
 rules laid down in Hadley v. Baxcndah, 11 
 first rule, damages arising in the natural course of things are 
 recoverable, 13 
 value of articles dependent on season, 13 
 damages for loss of season, 14
 
 INDEX. 603 
 
 CO'NTRACT—contlmicd. 
 
 fall in market price of goods, 14 
 
 selling value the test of depreciation, 15 
 
 same rule in America, 16 
 
 held not to apply to carriers liy sea, 16 
 
 damages where goods cannot be replaced, 18 
 
 expenses from breach of contract, IS, 28 
 
 special damage from non-payment of money, 19 
 
 damages are recoverable for inconvenience caused by 
 
 breach, 20 
 damages from breach of warranty, 20 
 
 sale of diseased animal, 23 
 rule where no warranty of nuality, 21 
 ases of consequential damage, 22 
 contemplation of breach by parties, 23 
 improbability of breach no bar, 24 
 econd rule, damages not arising in the natural course of things, 
 but arising from the special circumstances, are not 
 recoverable unless these circumstances were known to 
 the defendant, 24 
 cases of special loss not known to the defendant, 25 
 rule suggested as to notice pending performance, 26 
 meaning of market value, 26 
 different results contemplated by each party, 27 
 damages not contemplated by the defendant, 28 
 expenses incurred by delay of goods, 28 
 loss of special contract not recoverable, 29 
 non-delivery of telegrams, 29 
 third su J (posed rule that damages arising from special circum- 
 stances which were communicated to the defendant are 
 recoverable, 30 
 it is doubtful whether liability arises from mere communi- 
 cation of special circumstances, 30 
 in the absence of a contract to undertake liability, 30 
 case of common carrier, 30 
 authorities that responsibility is not enlarged by special 
 
 knowledge only, 31, 32 
 a])parent dictum to contrary explained, 37 
 rules suggested in place of third rule supposed to have been laid 
 
 down in Hadlcy v. Baxciulalc, 41 
 new principle suggested in FLdcher v. Tayleur, 42 
 motive not a ground of, 43 
 
 excejit in case of breach of promise to marry, 43 
 to pay money, damages limitetl to pi'incipal and interest, 10 
 
 but special damage has been allowed on breach of special 
 contract, 19 
 right to rescind, 223, 229, 230 
 See Damages, Deut. 
 
 CONTRIBUTION. Sec SuiiETysiiir, 334 
 
 COXTRIBUTOEY NEGLIGENCE, in cases of injury, 66—70 
 
 children may be guilty of, 69 
 
 of plaintiff's servant, 70 
 
 of person in charge of public conveyance, 71 
 
 maxim "volenti non lit injui'ia," 72 
 
 CONTRIBUTORY wrongful act of third party. See Thied Party.
 
 604 INDEX. 
 
 CONVERSION OF GOODS, gist of the action is tlie conversion, 379 
 
 damages in general the vahie of the thing, 379 
 mode of calculating value where price has changed, 
 380—383 
 interest on bill of exchange, 381 
 is to be calculated on value at 
 time of conversion, 383 
 when selling price will be taken to be the value or 
 
 not, 383, 391 
 where form of article has been changed since con- 
 version, 384 
 mode of vanning severed minerals, 385 
 
 where the mining was unauthorised, 386 
 distinction as to bona fides, 387 
 special damage may be recovered, 890 
 see as to trespass, 435 
 mode of valuing fixtures, 387 
 where goods have been deposited with defendant 
 under a void contract, 390 
 alue must be proved : presumption as to, 390 
 of title deeds, bills, or notes, 391 
 of void security, 392 
 
 when rendered void by act of defendant, 
 392 
 of policy of insurance, 393 
 interest, 393 
 special damages recoverable, if laid, unless too 
 
 remote, 393 
 lor goods seized under Customs Acts, 395, 413 
 mitigation of damages, 117, 395 
 want of title, 395 
 goods pledged for loan, 396 
 action by bailee, 397 
 action against unpaid vendor, 397, 415 
 keep of animal cannot be deducted, 398 
 action by reversioner, 398 
 right of action against third parties, 398 
 re-delivery of property, 398 
 
 applying the goods for owner's benefit is 
 
 not re-delivery, 399 
 verdict by consent in case of, 399 
 reduction of damages after verdict, 400 
 staying proceedings where all or some 
 articles are given up, 400 
 detention, damages for, 401 
 
 recovery in trover, with satisfaction, changes pro- 
 perty, 403 
 effect of, where verdict for less than value of 
 goods, 405 
 
 CORN OR HAY, irregularity in distraining, 423 
 excessive distress in taking, 423 
 
 landlord not bound to take in preference to goods whicli are 
 conditionally exempt. See Illegal Distress, 429 
 
 COSTS OF ACTIONS, not recoverable if refused in the original Court, 84, 199, 
 448 
 otherwise if not adjudicated upon at all, 84 
 not allowed when incurred unnecessarily, 85, 86, 88, 
 100, 541
 
 INDEX. 605 
 
 COSTS OF ACTlO'i\S—confi7iucd. 
 
 or merely to assess damages, 92—94 
 
 or wliere foi-mer action not sustainable, 87 
 
 unless the contest ■vvas reasonable, 89 
 or was the natural result of the defendant's con- 
 duct, 90 
 or was sanctioned by the defendant, 97 
 case of false assertion of authority by agent, 94, 
 336— .342 
 damages include costs, 94 
 so where defendant's conduct exposes plaintiff to 
 
 action, 96 
 case of tenant holding over, 96 
 case of vananty and resale, 97, 196 
 nor when they were caused by the wrongful act of the 
 plaintiff, 98 
 case of under-lessee with covenants, 98 
 niaj' be recovered where there has been an indemnity, 99 
 but only in case of rightful claims, 324 
 
 unless indemnity be against acts of jiarticular 
 persons, 325 
 extra costs not a ground of legal damage, 448 
 and cannot be recovered, 84, 448 
 unless where tliey cannot be taxed, 86, 441 
 or where there is an indemnity, 99 
 scd quccrc dc hoc, 325 
 cannot be recovered against sheriff, 464 
 where the former action was against plaintitTand another, 
 
 costs severed, 101 
 in action by surety against co-surety, 334 
 in action against carrier for not taking cargo, 297 
 in action by lessee against under-lessee, 327 
 
 CO-SUEETY. See Suiiktv.siiip, 333—335 
 
 COUNTY COURT, Registrar of. Liability in respect of replevin bonds, 456 
 
 COURT. See Amexdment, 578 ; New Trial, 582—590 
 
 COVENANT, for title and authority to convey, 208 
 
 when something has jiassed, damages are the difference, 208 
 when nothing has passed, the purchase-mone}', 209 
 or the amount paid to perfect the title, 210 
 for quiet enjoyment, not broken till disturbance, 210 
 
 damages, value of unexpired term and damages of former 
 action, 211 
 
 or amount paid for compromise, 211 
 not future unascertained damages, 211 
 whether rise in value may be allowed for, 212 
 or improvements, 212, 213 
 increase of natural value, 213 
 outlay of capital, 214 
 where there has been an eviction from part of the land, 214 
 deed is conclusive as to amount of purchase-money, 215 
 for further assurance, 216 
 against or to pay off incumbrances, 216 
 
 difference between law in England and America, 217 
 where there is a contingent incumbrance, 218 
 
 nominal damages when actual and contingent loss nega- 
 tived, 218
 
 606 INDEX. 
 
 COVENANT— f07i<Y"/( ued. 
 
 to renew, damages depend partly on value of land and partly on 
 
 title of lessor, 218 
 implied, that house is fit for habitation when let fui'nished, 219 
 to repair, liability of executors upon, 529 
 
 tenant may be sued for breach of, during term, 263 
 
 damages are measured by the injury to the reversion, 263 
 so where covenant not to commit waste, 263 
 or cost of repairs when done by the landlord, 265 
 though not assented to by tenant, 265 
 and though jilaintitf lias since assigned, 265 
 nominal for disrepair before execution of lease, 266 
 assignee only liable for breaches during liis own time, 266 
 
 but burden of proof lies upon him, 266 
 strict proof of disrepair necessary, 266 
 liability of vendor ])ending completion, 267 
 damages, when action l)rought at the end of term, are the 
 amount necessary to put premises into repair, 266 
 
 not limited to amount of insurance, if burnt down, 268 
 not affected by arrangements to wliich he is no party, 267 
 tenant is not bound to repair premises subsequently erected 
 without express covenant, 268 
 no answer that plaintiti''s interest has ceased, 268 
 damages from premises remaining unlet, 268 
 sub-lessee only liable for injury caused by his own breach of 
 covenant, 269 
 to keep in repair involves a covenant to put in repair, 269 
 
 amount of repair depends on age and class of premises, 269 
 how far evidence of previous disrepair admissible, 270 
 effect of doctrine upon assignees, 271 
 meaning of tenantable repair, 271 
 expenses of survey generally borne by landlord, 271 
 except where tenant obtains relief, 272 (n) 
 when liable for repairs of party wall, 272 
 efl'ect of condition precedent that landlord shall put in repair, 
 
 272 
 when action is by tenant against landlord, 273 
 costs of another house cannot be recovered, 274 
 
 iniless there has been delay on defendant's part, 274 
 injury to one part of premises from non-repair of others, 274 
 damages may be referred to the master, 561 
 to build, damages measured by real injury sustained, 274 
 to mine, 275 
 to pay renewal fine, must be commensurate with defendant's 
 
 interest, 276 
 to insure, jiremiums may be recovered, 276 
 wliere no loss has occurred, 276 
 
 where a loss has occurred, damages measured by it, 278 
 where policy is assigned to the insurers to secure loan, tho 
 
 damage is tlie loss of the security, 279 
 where defendant's act has caused a forfeiture of the policy, 
 280 ^ ^ 
 
 to pay rates, 280 
 10 deliver up possession, 281 
 not to assign, 281 
 not to exercise specified trades, 282 
 
 or be a nuisance to neighbourhood, 282 
 to pay rent. See Eent. 
 
 in case of alternative covenants, nominal damages only on one, if 
 money has been paid on the other, 281
 
 INDEX. 607 
 
 COVENANT— co!i«»iw<'(i. 
 
 assessing damages upon penalty for breach of covenants, under 
 8 & 9 W. III. c. 11, 237 
 to what cases statute extends, 240 
 where it does not, 240 
 Crown not bound by it, 241 
 to indemnify, or do some act, damages for breach of, 323 
 general covenant only extends to lawful acts, 324 
 otherwise when an individual is specified, 325 
 when executor may sue for breach of, 511 
 See Under-lessee. 
 
 CROrS, distress of gi-owing. See Illegal DistPvEss, 423, 429 
 
 CUSTOMS ACTS, damages for seizure of goods under, 395, 413 
 
 bona tide detention of goods under, not a trespass, 428 
 
 DAMAGES are recoverable in all personal and mixed actions, 1 
 and for suing after a prohibition, 3 
 
 and in debt for a penalty given liy statute to the party grieved, 
 if the amount is certain, 2 
 but not where amount uncertain, or in action by in- 
 former, 2 
 not recoverable in real actions, 1 
 nor upon an indictment or information, 2 
 
 but an informer may liave a third part of the fine. 2 
 nominal, meaning of, 4 
 
 plaintiff entitled to, though the injury cause no loss, 4 
 
 unless damage is of the essence of the action, 6 
 for detention of a debt, 233 
 
 cannot be sued for when debt has been paid before action, 
 233 
 otherwise when payment is made after action brought, 
 
 234, 236 
 unless accepted in bar of damages, 234 
 on a writ of incjuiry, 5(52 
 not necessarily nominal, though no proof of actual loss, 7, 8, 471, 
 563 
 or if plaintiff is a trustee for persons substantially interested, o 
 not a complete compensation, 9 
 
 for non-payment of money, limited to principal and interest, 10 
 for breacli of contract, must be the primary and natural result, 10 
 
 rules laid down in HtuUey v. Baxciidale, 11, 12 
 first rule, damages arising in the natural course of things are re- 
 coverable, 13 
 value of articles dependent on season, 13 
 damages for loss of season, 14 
 fall in market price of goods, 14 
 selling value the test of depreciation, 15 
 same rule in America, 16 
 lield not to apply to carriers by sea, 16, 300 
 damages when goods cannot be replaced, 18 
 expenses from breach of contract, 18 
 special damage from non-payment of money, 19 
 damages are recoverable for inconvenience caused by breach, 20 
 damages from breach of warranty, express or implied, 20, 21 
 instances of consequential damages recoverable, 22 
 second rule, damages not arising in the natural course of things, but 
 arising from the special circumstances, are not recoverable 
 unless these circumstances were known to the defendant, 24
 
 608 INDEX. 
 
 D AlSl AGES— continued. , , ^ ■, . „^ „^ 
 
 cases of special loss not known to the cleiendant, 25, 26 
 rule suggested as to notice pending peilormance, 26 
 meaning of market value, 26 
 different results contemplated bj' each party, 27 
 damages not contemplated by the defendant, 28 
 expenses incurred by delay of goods, 28 
 loss of special contract not recoverable, 29 
 non-delivery of telegiams, 29 
 third supposed rule, that damages arising from special circumstances 
 Avhich were communicated to the defendant are recoverable, 
 30 
 it is doubtful Avhether liability arises from mere communication 
 of special circumstances, 30 
 in the absence of a contract to undertake liability, 30 
 case of common carrier, 30 
 
 authorities that responsibility is not enlarged by special know- 
 ledge only, 31—40 
 rules suggested in place of third rule supposed to have been laid 
 
 down in Hadlcy v. Baxendale, 40 
 new principle suggested in Fldclier v. Taylcur, 42 
 
 would exclude exceptional profits, 42 
 motive not a ground of, in actions on contract, 43 
 in actions of tort governed by looser principles, 44 
 motive a ground of, 45 
 
 unless in actions against several, 45 
 
 or against a principal for the act of his agent, 45 (n), 
 471 
 are a penalty and not merely a compensation, 45 
 when too remote, 47 — 82 
 must be immediate result of act complained of, 48 
 
 ap])lication of this rule, 49, 53 
 loss ot jirpfits when recoveralile, 54, 58, 184 
 if the natural result of tlie breach, 54 
 not when founded on special contract for re-sale, 54 
 primary but not secondary profits recoverable, 55 
 
 Scotch law different in this respect, 58 
 when the injury is not the natural result of the act, 60 
 when caused by the act of the plaiutilf himself, 65, 88, 98 
 effect of his negligence in cases of injuiy, 67, 70 
 
 or that of his servant or driver, 71 
 maxim volenti nan jit injima, 72 
 
 premature expenses, incurred while contract incomplete, 74, 
 199 
 damage from non-repair of fences, 62 
 
 acts of animals, 62 ..^^^mf* 
 **"- ' acts preventing payment of money, 64 
 when the wrongful act of a tliird party which could not have 
 been exi)ected, 74, 80, 476 
 otherwise when such was the natural result of the wrong 
 
 done, 74, 76 
 repetition of slander by third parties, 76 
 cases where a wrong to A. is an injury to B., 80 
 fraudulent representations acted on by others, 81 
 or in a way not intended, 81 
 costs of former actions, 83 — 98 
 
 not recoverable if refused or limited, in the original Court, 84, 
 199, 448 
 otherwise if not adjudicated upon at all, 84 
 or where they could not be taxed, 86, 441
 
 INDEX. QQ^ 
 
 DAMAGES —continued. 
 
 and where there is an indemnity 99 305 
 sed qucere da hoc, 325 ' ' 
 
 not allowed when incurred unnecessarily 87 88 541 
 or where former action not sustainable, 87 ' 
 unless the contest was reasonable ' 90 
 or was sanctioned by the defendant 97 
 or was the natural result of defendant's conduct 90 
 case of false assertion of authority by a-ent 9?'''''^' ^*^ 
 
 damages include costs, 94 ° ' 
 
 so where defendant's conduct exposes plaintiff to action 96 
 
 case of tenant holding over, 96 action, jo 
 
 case of warranty and resale, 97 
 
 nor when they were caused by the wrongful act of the plaintiff DS 
 
 case of under-lessee with covenants 98 IJJainuu, Ji, 
 
 may be recovered whei-e there has been an indemnity, 90 100 
 but only in case of lawful claims 324 
 
 "''personr325""'^ ^' ^^''"'^ *^' "'*' "^ '^ particular 
 not necessary' to give surety notice of former action. 100 
 wh«-e former action against plaintiff and another, costs severed, 
 
 cannot be given for anything hefoi-e cause of action 101 
 subse.iuent to action may be allowed for, when 'it is the natural 
 result, and not itself a new cause of action, 101—107 
 distinct causes of action from same act, 103 
 interest given up to judgment signed, 'l05 
 when evidence of specific subsequent injury allowed 105 
 a legal (not moral) liability to pay money a ground of 108 
 
 for instance, a judgment recovered, 323 ' 
 
 not recoverable, when not the necessary result of defendant's act 
 106 ' 
 
 or a new cause of action, as a continuing nuisance lOG 
 for^ continuing cause to be assessed down to time of assessment, 
 
 evidence in mitigation of, not admissible if it could have been 
 pleaded in bar, 109, 562 
 nor for all the purposes of a cross action, 110 
 nor when merely res inter alios acta, 110, 481, 494 
 
 right of action against a third party, 111 
 nor wlien it would contradict any rule of evidence 113 
 inferiority a ground of reduction in actions for price of' goods 114 
 or work and labour, or hire of services, 115 ' 
 
 but not in actions for freight, or an attornev's bill 
 113 J > 
 
 unless no benefit received, 113 
 measure of reduction in such cases, 115 
 work done, or materials supplied by employer, 115 
 injury to, or loss of employer's goo'ds, 115 
 extenuating circumstances, 117. See dilTerent titles of actio-i.s 
 absence of malice, 119 
 set-off. See Set-off, 119, 133 
 cannot exceed amount laid, 142, 573 
 
 if more given, judgment formerly reversed, 573 
 double and treble in certain cases, 574 
 ascertained by multiplying amount of verdict, 574 
 mode of assessing. See Assessment of Damages, JunGMEN'T 
 Several Counts, Several Defendants, Weit of Inquiuy' 
 560 — 576 ' 
 
 power of Court to increase or abriJge, 579, 580
 
 610 INDEX. 
 
 DAMAGES— cmitinucd. 
 
 may he assessed by jury alternative]}-, 581 
 too small or excessive. See New Trial, 581 — 590 
 liquidated, form the ascertained amount of the verdict, 142, 146 
 but must be sued for as such, 143 
 judge must decide whether a jienalty or, 146 
 will be construed as a penalty, when so stated to be, without 
 controlling words, 146 
 or when a larger sum is to be due in default of a smaller, 
 146 
 imless stipulated for in express terms, 152 (n) 
 or where there are several things to be done, the breach of 
 
 which can be measured in money, 151 
 otherwise when the damages would be uncertain. 149, 153 
 no inflexible rule can be laid down, but intention of paities 
 is to be considered, 155 
 mere use of words " liquidated damages " not decisive, 14" 
 plaintiff cannot have both liquidated damages and an injunction 
 153 (n) 
 cannot be given beyond penalty, when sued for as such, 144 
 more or less ma}' be given, Avhen action is on contract, 144 
 assessing under 8 & 9 W. III. in action for penalty. See Debt, 
 237. See Special Damage. 
 
 DANGEE, damage received while trying to avoid, 70 
 caused by defendant's negligence, 70, 72 
 
 DANGEROUS goods, damage caused to carrier bj-, 296 
 
 DEBT, damages for detention, in general nominal, 9, 233 
 
 limited to principal and interest, 10 
 
 may be substantial, as on a mortgage deed, 233 
 
 defence bad, unless it answers, 233 
 
 but need not expresslj' deny, 231 (n) 
 
 interest when given, 231 
 
 action for nominal cannot be commenced after payment, 231 
 may be carried on, if payment after action, 234, 236 
 
 none when plea of tender found for defendant, 237 
 
 nor where there has been a release of the action, 236 
 
 on a penal statute, 2 
 for a penalty as liquidated damages. See Penalty, Liquidated 
 
 Damages, 144, 237 
 on a bond, assigning breaches under 8 & 9 "NA'. III. c. 11, 237 
 
 statute compulsory, 238 
 
 same judgment as before, 238 
 
 difierent modes of proceeding under statute, 238 
 
 to what cases it extends, 240 
 
 when it does not apply, 240 
 
 not binding upon the Crown, 241 
 
 damages limited to amount of penalty and costs, 241 
 
 satisfaction entered on payment, 242 
 when penalty not in a bond, plaintiff need not sue for it, 242 
 
 and may recover more or less, 242 
 mode of calculating value of a sum in foreign currency, 242. See 
 Ikterest. 
 
 DECEIT, See Feaudxtlent Misr.EPKESENXATiox. 
 
 DECK GOODS; contribute to a general average, 366 
 
 not ccutributed for unless in case of usage, 369
 
 INDEX. Qll 
 
 DEFAMATION, evidence of malice, 468—471 
 
 other words or writing may be used as, 468 
 persisting in the charge, 469 
 conduct of defendant, 460 
 
 general evidence of good character only allowed to rebut con- 
 trary evidence, 470 
 evidence of general competenc}', 470 
 malice of one not evidence in action against another, 471 
 damages in joint actions, by partners or husband and wife 
 471 * 
 
 giving circulation to the libel, an aggravation of, 470 
 specific proof of damage unnecessary, 471 
 
 when prospective may be allowed, 472 
 
 specific injury after action, when admissible in iiroof 
 
 of, 472 ^ 
 
 when general evidence of may be given, 473, 475 
 special damage when necessary, 475 
 
 must be laid with certainty, 475 
 must be the natural result of defendant's act, 76, 476 
 
 and not of the repetition of the slander by others. 76 
 476 J , ' , 
 
 unless authorised by defendant, 76 
 
 or uttered to one whose duty it was to report it, 76, 476 
 
 when act of third party a ground of, 47tj 
 
 must not be too remote, 478 
 mitigation of damages ; defendant did not originate tlie libel. 
 479 
 
 had cause to believe it, 479 
 
 previous provocation, 480 
 
 general bad character, 480 
 
 reputation, 480 
 
 rumours to same effect, 481 
 
 particular facts showing character, 481 
 
 notice must be given of facts intended to be proved in 
 mitigation, 481 
 
 former recovery against another person, no ground 
 for, 481 
 
 except in newspaper cases, 482 
 apology in newspaper, 482 
 justification, 481 
 action for several slanders, some of wliich not actionable, 567 
 
 DEFAULT. See Judgment by, 564 
 
 DEMAND OF INTEREST, what is a sufficient, 16 
 
 DEMURRAGE. See Detention of Ship ; Carriers 
 
 DEMURRER. See Point of Law. 
 
 DEPOSIT, on contract to purchase land, interest on, 160 
 forfeiture of, 207 
 
 DETENTION OF CHATTEL, damages for, 401. See Detinue. 
 
 DETENTION OF SHIP, damages for, 295 
 
 demurrage clause, 295. See Carriers, 
 
 Pv r. 2
 
 612 INDEX. 
 
 DETINUE, judgment in action for detention of chattels, 406 
 statutory power to order delivery of chattel, 406 
 jury ought to find value separately, 406, 568 
 
 amendment of postea, 578 
 damages when property cannot he returned, 407 
 
 in actions for charters or scrip, 407 
 
 •when scrip has fallen in value, 401, 407 
 plea of acceptance of goods since action, 407 
 effect of judgment in altering property, 407 
 
 agninst garnishee, greater damages than those claimed against defen- 
 dant, 142 
 
 DEVASTAVIT, effect of upon the liahility of an executor, 529 
 
 difference between doctrines of law and equity, as to, 530 
 
 DEVIATION from contract for work, 220 
 
 DILAPIDATIONS, liability of executor of deceased incumbent fcr, 522 
 
 DIRECTOES, issuing fraudulent prospectus, 197 
 
 DISMISSAL from service. See Hieixg, 223—232 
 
 DISTINCT causes of action resulting from one injurious act, 103 
 
 DISTEESS. See Illegal Disteess, 421—429 
 
 DIVIDEND must be apportioned to whole debt, where part is guaranteed, 318 
 but surety of a part of debt is not entitled to dividend, 319 
 
 DIVORCE. See Adilteky. 
 
 DOGS received for transport, injury to, 312 (n) 
 
 DOUBLE DAMAGES, 574 
 
 DOWER, no damages on writ of right of, 37S 
 or of dower undc nihil Juibet, 375 
 
 DRAFTS, breach of contract to meet, 20 
 
 DRAWER, liability of. See Bills of Exchange. 
 
 DRIVING distress into another county, action for, 426 
 
 EASEMENTS, nominal damages where right has been iufiingcd, thougli no 
 loss, 443 
 unless right is a matter ptilAici juris, 444 
 
 particular but not special damage necesfarj', 444 
 luture damage, 444 
 actions by reversioners must show injury, 445 
 
 against tlie lord for putting cattle upon con moit, 446 
 continued obstruction may be sued for continually, 445
 
 INDEX. 613 
 
 EJECTMENT, changes in its cliaracter, 374 
 judgment in, 374 
 when mesne profits may be recovered, 375 
 
 See Mesne Profits, 439 — 442 
 costs of, may be recovered in action for mesne profits, 441 
 
 EMPLOYERS' LIABILITY ACT, damages under, 456 
 
 ENDORSER, liability of. See Bills of Exchange. 
 
 ENTRY, when necessary to maintain trespass, 439 
 
 when made, relates back to origin of title, 439 
 
 unless where party in possession was not a trespasser till entry, 440 
 
 EQUITABLE set-off. See Set-off, 129—133 
 doctrine of devastavit, 529 
 
 EQUITY. See Chancery Division. 
 
 ESCAPE, action of debt, for, abolished, 461 
 
 damages in action on the case for, 462 
 
 EVICTION. See Covenants for Title, 208—219 
 
 by landlord bars an action for rent, 214, 258 
 
 by title paramount causes an apportionment, 214, 258 
 
 EXCESSIVE DAMAGES. See New Trial, 584-589 
 
 EXCESSIVE DISTRESS. See Illegal Distress, 421 
 
 EXECUTION against goods, whether it will support a count for money paid by 
 surety, 331 
 
 EXECUTORS, actions by, 510—519 
 
 must be brought in respect of some wrong affecting the per- 
 sonal estate, 510 
 not necessary to prove actual damage, 511 
 unless in actions of real covenants, 611 
 when they cannot sue, 512 
 measure of damages, 513 
 
 right to sue for trespass to goods, 513 
 or to lands, 514 
 or for injury causing death, 514 
 
 no damages for mental suffering, 515 
 
 nor for funeral expenses, mourning, 517 
 
 but for loss of expectations, 517 
 
 principles on which pecuniary loss to be calculated, 
 
 515 
 deduction on account of insurance, 516 
 action onlj^ when deceased might laave sued, 518 _ 
 therefore barred by accord and satisfaction with 
 
 deceased in his lifetime, 518 
 extends to death on high seas, 307 (n) 
 but no action can be brought till Board of Trade 
 
 has held an inquiry or refused to do so, 307 (n) 
 admiralty rule as to half damages does not apply, 
 
 514 
 nor can a foreign ship be proceeded against in rem, 
 518
 
 614 INDEX. 
 
 EXECUTORS— contimied. 
 
 set-otf in actions by, 124 
 
 ill actions against, 125 
 actions against, 519 — 532 
 
 when sued as such, are liable to extent of assets, 519 
 contracts of the testator in general survive against, 520 
 unless in matters of personal skill, 521 
 revocation of authority by death, 520 
 breach of promise of marriage, 483, 521 
 trespass may be maintained against, 521 
 but vindictive damages cannot be recovered, 522 
 liability of, for dilapidatiors, 522 
 what contracts made by, bind him in his representative character, 
 
 523 
 when liable personally, 524 
 trading, 525 
 
 submission to arbitration, 525 
 funeral expenses, 525 
 rise and occupation, 526 
 rent due since testator's death, 526 
 
 where term has been assigned, 528 
 mode of estimating profits from land, 528 
 covenant to repair, 529 
 devastavit at law and in equity, 529, 530 
 want of assets should be pleaded, 530 
 effect of judgment against de bonis tcstatoris, 531 
 
 dc bonis propriis, 531 
 can sue or be sued for mesne profits, 443 
 
 payments made by executor, de son tort, go in mitigation of 
 damages, 118 
 
 EXEMPLARY DAMAGES may sometimes be given, 44, 46, 585—588 
 so in breach of promise of marriage, 43, 482 
 actions for mesne profits, 440 
 See Motive. 
 
 EXTORTION, treble damages in action against sheriff for, 463 
 form of claim, 464 
 
 EXTRAS, how sued for, 220 
 
 original contract must be put in stamped, 220 
 
 FACTOR, set-off in actions by or against, 127 
 
 FALSE IMPRISONMENT, probable cause a ground of mitigation, 119, 45!] 
 but if amounting to a justification, must be pleaded, 452 
 remand by the magistrate not a ground of damages, 452 
 nor circumstances of subsequent prosecution, 452 
 damages in action by and against several, 452 
 
 against justices of the peace, 453 
 jury will look to all the circumstances, 438 
 
 FENCES, consequential damages from non-repair, 62 
 FINE, covenant to pay, 276
 
 INDEX. 615 
 
 FIRE INSURANCE is a contract of indemnity, 344 
 
 sum insured for does not operate as the ascertained value, 345 
 
 property' is to be estimated at its intrinsic value, 345 
 
 at what time the value is to be calculated, 346 
 
 election to reinstate, 344 (n) 
 
 bailees may insure for full value, 348 
 
 are trustees for residue above their own interests, 2iS 
 movable fixtures, 347 (n) 
 insurable interest of tenants from year to year, 348 (n) 
 
 mortgagees, 348 (u) 
 profits must be expressly insured, 348 
 expenses of saving property, 348 
 double insurance, 349 
 the single value only can be recovered, 349 
 except when insurances are in different rights, 349 
 contributions between different offices, 349 
 
 when landlord and tenant insure separately, 350 
 assured may be bound to refund, 350 
 
 FIXTURES, damages for the conversion of, 387 
 for trespass to, 407 
 on policy of insurance for movable, 347 (n) 
 
 FOREIGN BILL OF EXCHANGE, interest on, 246, 247 
 
 FOREIGN CURRENCY, mode of calculating value of, 242 
 
 FOREIGN JUDGMENT, interest upon, 163 
 
 mode of calculating value of, 242 
 
 FOREIGN SHIPMENT, statement of value in, 307 
 
 FORMER RECOVERY. See Judgment Recovered, 
 
 FRAUDULENT MISREPRESENTATION, damages may be recovered which 
 result naturally from representation being acted on, 20, 196, 
 197 
 
 as to animals with infectious disease, 196 
 
 as to land, 199 
 
 fraudulent prospectus, 197 
 
 case of damages too remote, 62 (n) 
 
 representations acted on by third persons, 81 
 
 or in a way not intended, 81 
 
 FREIGHT, loss or injury to goods not a ground for mitigation of damages in 
 actions for, 113 
 actions for payment of, 285 
 
 for not supplying, 290 
 for not taking, 296 
 
 See Carriers, Marine Insurance, Average. 
 
 FRIGHT, damages from not recoverable, 50 
 
 unless coupled with physical injury, 50 
 
 FUNERAL EXPENSES, liability of executors for, 525 
 
 URTHER ASSURANCE, covenant for, 216
 
 616 INDEX. 
 
 FUTURE DAMAGE. See Peospective Damage. 
 
 GAME, damages from, 8 
 
 GENERAL AVERAGE. See Average. 
 
 GOODS, sold and delivered, no interest recoverable, 161 
 unless payment to be made by bill, 162 
 when to be paid for by bill which is not given, 170 
 inferiorit}' may be given in evidence, 114 
 measure of reduction of price, 115 
 bargain and sold, where no actual delivery, 170 
 action for not accepting, 170 
 
 damages, difference between contract and market price, 170 
 
 in some cases plaintiff may sue before expiration of 
 
 time fixed for performance of contract, 171 
 but damages must be calculated with reference to 
 
 date at which it should have been carried out, 172 
 and plaintiff must take steps to reduce his loss, 174 
 vendor cannot re-sell goods, if buyer fail to carry them away, 175 
 absolute contract to pay for goods, though not accepted, 177 
 action for refusal to deliver, same rule of damages, 177 
 
 where vendor has renounced contract before day fixed, 178 
 
 where there are distinct times of delivery, 178 
 
 where vendee at vendor's request forbears buying other goods, 
 
 179 
 when no time fixed for completion of contract, 179 
 postponement of time for performance, 179 
 where deliver}- is by instalments, 180 
 where goods are not procurable in the market, their value must 
 
 be otherwise estimated, 181 
 loss of profit an element of value, 181 
 additional expenses caused by breach, 182 
 loss of profits on re-sale, 183 
 articles intended not for sale but use, 183 
 actions for not replacing stock, 184 
 where payment made in advance, 185 — 189 
 by bills which arc dishonoured, 189 
 where sale of goods restrained by interlocutory injunction, 
 
 189, 190 
 order for specific delivery under Mercantile Law Amendment 
 Act, 1856, 190 
 See "Warranty, 190—197 
 sold by master for necessities of ship, 303, 354 
 mode of valuing, 303 
 
 lost by carrier, or injured by carrier. See Carrier, 301 — 315 
 action against unpaid vendor for conversion of, 397 
 
 trespass to, 415 
 mode of valuing. See Valite. 
 
 whether execution upon, will support a count for money paid by 
 suret}', 331 
 See Damages. 
 
 GUARANTY. See Suretyship. 
 
 damages for conversion, 392 
 
 EADLEY V. BAXENDALE, rules laid down in, 11, 12 
 
 first rule, damages arising in the natural course of things are 
 recoverable, 13
 
 INDEX. 617 
 
 EADLEY V. B AXE X DALE— continued. 
 
 value of articles dependent on season, 13 
 
 damages for loss of season, 14 
 
 fall in market price of goods, 14 
 
 selling value the test of depreciation, 15 
 
 same rule in America, 16 
 
 held not to apply to carriers by sea, 16 
 
 damages when goods cannot be replaced, 18 
 
 expenses from breach of contract, 18, 28 
 
 special damage from nonpayment of money, 19 
 
 damages are recoverable for inconvenience cansed by 
 
 breach, 20 
 damages from breach of warranty, 21 
 
 sale of diseased animals, 20 
 rule where no warranty of quality, 21 
 cases of consequential damage, 22 
 contemplation of breach, by parties, 23 
 improbability of breach no bar to damages, 24 
 second rule, damages not arising in the natural course of things, 
 but arising from the special circumstances, are not re- 
 coverable unless these circumstances were known to the 
 defendant, 25 
 cases of s])ecial loss not known to the defendant, 25 
 rule suggested as to notice pending performance, 26 
 meaning of market value, 26 
 different results contemplated by each part}', 27 
 damages not contemplated by the defendant, 28 
 expenses incurred by delay of goods, 29 
 loss of s])ecial contract not recoverable^ 29 
 nondelivery of telegrams, 29 
 third supposed rule, that damages arising from special circumstances 
 which were communicated to the defendant are recover- 
 able, 80 
 it is doubtful whether liability arises from mere communi- 
 cation of special circumstances, 30 
 in the absence of a contract to undertake liability, 30 
 cases of common carrier, 31 
 authorities that responsibility is not enlarged by special 
 
 knowledge only, 31, 32, 34 
 apparent dictum to the contrary explained, 37 
 inference to be drawn as to damages contemplated, 40 
 rules suggested in place of third rule supposed to have been 
 laid down in HacUey v. Baxendale, 41 
 
 HIRING, contracts of, 223—232 
 
 nothing recoverable upon a special contract which has not been per- 
 formed, 223 
 
 nor upon a quantum meruit, unless defendant prevented per- 
 formance, 224 
 nor where dismissal was for misconduct, 224 
 
 when such dismissal a good defence, 224 (n) 
 contract to pay for service is not a contract to employ, 224 
 unless word "agreed " is used, 225 
 intention of the parties, 225 
 effect of word " agreed," 225 
 where service is a mode of paying a debt, 226 
 where covenants to pay and serve are independent, 226 
 Clmrchward v. The Qacen, 227 
 agreement to supply work not always implied, 228 
 agreement to pay a yearly salary is a yearly hiring, 228
 
 G18 INDEX. 
 
 HIRING — contimied. 
 
 when action for dismissal may be brought, 228 
 damages in it ; include past service, 229 
 contract cannot be treated as subsisting for any purpose but 
 
 that of suing, 229 
 right of action passes to trustees in bankruptcy, 230, 532 
 plaintiti; improperly dismissed, may sue at once on a quanhim meruit, 
 230 
 
 inferiority of services may be given in evidence, 230 
 doctrine of constructive service for whole period overruled, 230 
 month's notice in case of menial servants, 231 
 who are such, 231 
 
 damages in action for not giving notice do not include past 
 service, 231 
 apprentice wrongfully dismissed without a week's notice held entitled to 
 
 damages exceeding the value of a week's notice, 231 
 alary now within statute of apportionment, 232 
 See WoKK AND Labouk, 221 — 222 
 
 HOLDING OVER after giving notice to quit, 261 
 
 receiving notice to ipiit, 261. See Rent. 
 
 HUSBAND AND WIFE, set-off in actions by and against, 124 
 
 no special damage on joint count for libel in action 
 by, 471 
 separate count for injury to husband may be 
 added, 471 
 
 ILLEGAL DISTRESS, 421—429 
 
 irregularity in distress for rent ; action must be for actual damage, 
 
 421 
 excessive distress, 422 
 
 mode of calculating value, 422 
 
 no damages for sale unless alleged, 422 
 
 when trespass will lie for, 422 
 
 distraining for more rent than is due, 423 
 where nothing is due, 426 
 irregularity in distraining corn, hay, or growing crops, 423 
 
 effect of tender, 423 
 selling without appraisement, 425 
 
 not removing goods ; not giving notice ; not selling at best price, 425 
 diiving cattle out of county, 426 
 when distress is void ab initio, 426 
 
 selling lodger's goods, 427 
 
 tender before or after distress ; after impounding, 427 
 
 mere non-feasance not sufficient, 428 
 
 distress may be void as to part only, 428 
 distraining privileged articles, 429 
 
 where only other distress consists of growing crops, 429 
 fraudulent removal of goods, 429 
 
 IMPROVEMENTS, a gi-ound of damage in action on a warranty, 195 
 
 on covenant for title, 213 
 whether value of, can be recovered in trover, 384 — 390 
 not allowed for in action for mesne profits, 442 
 
 INCONVENIENCE, through breach of contract, damages for, 20 
 
 INCUMBRANCES. See Covenant, 216
 
 INDEX, 619 
 
 INDEMNITY, recovery of costs under, 99, 325 
 
 given by plaintiff to defendant against tlie demand sued on may 
 
 bar the action or reduce tlie damages, 117 
 against calls on shares, vendor's right to, 176 (n) * 
 by execution creditor to sheriff, 101 
 See SuEETYSHiP, 316—373 
 
 INDICTMENT, no damages recoverable on, 2 
 
 when given by statute must be sued for, 2 
 
 informer may upon conviction obtain a third of fine, 2 
 
 INDORSEE, liability of. See Bills of Exchange. 
 
 INFANTS, contributory negligence of, 69 
 
 INFERIORITY a ground for mitigation of damages, 115 
 measure of reduction, 115 
 not in actions for freight, or on an attorney's bill, 113 
 
 INFORMER, damages not recoverable by, 2 
 
 when, may sue for breach of statutory obligation, 507 
 should not be a corporation, 508 
 See Statutoky Obligation. 
 
 INJUNCTION, damages in addition to or substitution for, 591 
 acquiescence a bar, 592 
 where nominal only, 592 
 cannot be had with liquidated damages, 153 
 damages resulting from interlocutory, 190 
 See Chanceiiy Division. 
 
 INSURANCE of ship not a ground for reducing damages in action for collision, 
 110, 415 
 nor of goods in action for injury by collision, 415 
 nor against accident, in case of personal iniury, 110, 455 
 but of deceased's life must be taken into consideration in action by 
 
 executors for injury causing death, 516 
 damages in action for conversion of policy, 392 
 SeeFiKE, Life, Makine Insurance, Lntekest. 
 
 INSURE, covenant to ; premiums may be recovered, 276 
 where no loss has occurred, 276 
 where a loss has occurred, 278 
 where policy is assigned to the insurer to secure loan the damage is 
 
 the loss of the security, 279 
 covenant not to cause forfeiture of policy, 280 
 
 INTEREST. I., at common law, when given, 156 
 always on bills and notes, 156, 244 
 
 may be withheld unless expressly reserved. 244 
 not given while note in hands of alien enemy, 244 
 where expressly reserved, runs from date, 244 
 unless by Bills of Exchange Act, 1882 : 245 
 though no action could have been originally maintained, 244 
 if note given as a legacy, would run from maker's death, 244 
 •where not reserved, runs from maturity, 245 
 
 or from demand, when instrument payable on demand, 245 
 liability of drawer, indorser, or guarantor for, 245 
 •when note payable by instalments, 246
 
 620 INDEX. 
 
 INTEREST. I.— continued. 
 
 does not run after a tender, 163, 246 
 payment into Court must include, 246 
 
 cannot be recovered from maturity of bill without its production, 246 
 calculated at current rate of place whose laws govern payment, 246 
 lex loci solutionis is the lex loci contractus, 247 
 hence different liabilities of acceptor drawer, and indorser, 247 
 where expressly reserved, governed by lex loci contractus, 164, 247 
 in action for conversion of a bill, 381, 393 
 
 contract of indemnity does not imply interest on money paid, 156 
 course of dealing raises a contract to pay even compound, 157 
 
 but not upon the last balance, 157 
 agreement to ))ay by bill or note raises a contract for, 158 
 
 fact of such agreement is a question for the jury, 158 
 bond with a penalty carries, 158 
 
 but not when parties only bound in the amount due, 159 
 given on an award payable on a certain day, 160 
 as damages for breach of contract, 160 
 not recoverable in action for recovery of deposit, 160 
 
 except as damages, 160, 161 
 
 nor even then in action against the auctioneer, 162 
 nor for money lent, paid, had and received, or on account stated, 
 
 162 
 nor for goods sold, work and labour, or policy of insurance, 162 
 nor on ibreign judgment, where plaintiff' has been guilty of laches, 
 
 163 
 nor in action for money secured on mortgage, 162 
 or for money payable on a fixed day, 162 
 or upon a contract to indemnify, 156 
 
 except as damages, 160 
 between ])artners, 163 
 does not run after a tender, 163 
 calculated up to time of payment into Court, 164 
 
 or judgment signed, 105, 164, 167 
 recovered at law always 5Z. per cent., 164 
 II., by statute, 164 
 
 in trespass, 165 
 
 trover or conversion, 165 
 
 on policies of insurance, 162, 165, 365 
 
 what sums considered certain, 165 
 
 what is a sufficient demand, 166 
 
 case of application for loan until a day named, 167 
 
 notice of action, when necessary, must demand interest, 166 
 
 wrongful detention of debt, 167 
 
 jury cannot be controlled in their discretion, 167 
 
 can only be given by jury, 167 
 
 on judgments, 168 
 
 time from which it is calculated, 168 
 in cases of appeal, 168 
 
 on equitable claims, 168 
 
 on moneys refunded where judgment reversed, 168 
 in action for breach of covenant for title, 209 
 or contracts for work, 221 
 on purchase-money of land under condition of sale, 198 (n) 
 beyond penalty where express agreement, 242 
 
 INTERPLEADER, crecitor only responsible in trespass up to time of order, 408 
 therefore not responsible for the sale under the order, 
 409 
 
 INTERROGATORIES as to damages, 558
 
 INUEX. 621 
 
 JOINT ACTION'S, principle of damages in, 452, 568 
 cannot be assessed severally, 568 
 
 efifect of default by one defendant. See Judgment by De- 
 fault, 571. 
 
 JOINT AND SEVERAL bond, or note, when it may be set off, 123 
 
 debts, when they may be set off against each other, 122 
 133 ' 
 
 ivhen they cannot, except by counter-claim, 122 
 
 JUDGE must decide whether a fixed sum is a penalty or liquidated damao'es, 146 
 must direct as to the place by whose laws interest is to be regulated' 246 
 as to the measure of damages, 577 
 and remoteness of damage, 47 (n), 578 
 effect of a wrong ruling by, as to right to begin, 577 
 amendment by, 578 
 See Amendment. 
 in case of excessive verdict will suggest to counsel to agree on a sum, 578 
 
 JUDGMENT was the subject of set-off though writ of error pending, 120 
 
 and though prejudicing the attorney's lien, 121 
 
 but not a verdict before judgment, 120 
 
 nor when satisfied by execution, 120 
 would not be stayed to let in a judgment on a cross action, 120 
 when considered to be signed or entered, 164, 163 
 interest upon, 168 
 in trover, effect of in changing property, 403 
 
 and in detinue, 407 
 form of, against an executor, 531 
 
 its effect, 532 
 may be maintained as to part, and reversed as to daninge.'r, 589 
 
 See FoiiEiGN Judgment. 
 
 JUDGMENT BY CONFESSION, express or implied, 560 
 
 when execution may issue for the amount at once, 561 
 or on default in payment of an instalment, 561 
 when necessary to have a reference to the blaster, 561 
 or a writ of iuiiuiry. See Writ of Inquiuv, 562 
 
 JUDGMENT BY DEFAULT, admits the cause of action alleged, 564 
 but not the amount unless put in issue, 5(54 
 where the writ has been specially endorsed, 564 
 where it has not been, 564 
 
 is final in case of a liquidated demand for mone}', 564 
 when a reference to the Master may be had, 564 
 when necessary to sue out writ of inquiry, 565 
 evidence upon writ of inquir}-, 562 
 
 on one of several counts, on which plaintiff may recover all he 
 claims, 565 
 
 JUDGMENT ON POINTS OF LAW, assessing damages on, 565 
 
 JUDGMENT EECOVERED is a damnification to its full amount,_323 
 a bar to a second action in trover or trespass, 403, 405 
 or in detinue, 407 
 or for negligence, 96, 436 
 or slander, 472 
 not a bar to an action for a nuisance, or continuing trespass to land, 
 103, 436 
 or obstruction to an easement, 444
 
 622 INDEX. 
 
 JUDGMENT nECOYEUKD— continued. 
 
 in action for im]H-i.soiiment, no bar to action for malicious prosecu- 
 tion, 452 
 against one slanderer, no bar to action against another, 481 
 against one adulterer no bar formerly to action against another, 494 
 against insurers, no bar to action for a collision, 110 
 
 JUDGMENT REVERSED where entire damages against all, and some only 
 guilty of part, 568 
 new procedure, 569 
 
 Avhere damages assessed severally instead of jointly, 570 
 Avhere greater damages are given than are laid, 573 
 
 JURISDICTION, seizing goods out of, 418 
 arresting out of, 451 
 
 JURY may withhold interest, 167, 244 
 
 amount is at their discretion, 167, 246 
 summoned by sheriff to ascertain property, 419 
 
 effect of their verdict, 420 
 must assess value of goods in detinue separately, 406, 56S 
 formerly assessed value of rent and distress in replevin, 421 
 amendment of postea formerly in accordance with intention of, 573 
 judge must direct as to measure of damages, 577 
 
 and remoteness of damage, 578 
 
 and as to the place whose laws govern the rate of interest, 246 
 mistake or misconduct of, a ground for a new trial, 581, 584 
 
 JUSTICE OF THE PEACE, damages in action against, 453 
 
 JUSTIFICATION ; an unsuccessful plea is an aggravation of damages, 451, 479 
 evidence which amounts to, cannot be given in mitigation of 
 
 damages, 452, 479 
 no evidence of, that plaintiff liad submitted to same imputa- 
 tions before, 481 
 
 KEEP of an animal not a ground of mitigation of damages in trover, 398 
 may be recovered in action on a warranty, 193 
 
 KNTOWLEDGE of special circumstances, effect on damages. See Hadley v. 
 Baxendale. 
 
 LAND, sales of, 198—207 
 
 action for breach of contract to convey, 198 
 
 vendee may recover deposit with interest as damages, 198 
 and expenses of investigating title, 198 
 but not expenses prematurely incurred, 199 
 
 unless in case of misrepresentation, 199 
 nor costs of suit for specific performance, 199 
 nor profits from a re-sale, &;c., 74, 200 
 nor value of improvements made, 200 
 nor loss incutTed by selling out stock, 199 
 nor damages incurred after knowledge of defective title, 200 
 nor damages for loss of bargain, 200 
 
 reason for this exception from general rule, 201 
 Bain v. FothergiU, 200 
 damages wliere failure is not from want of title, 2)1 
 the ordinary rule of common law prevails, 201 
 and special damage may be recovered, 201 
 refusal to make title, 202
 
 INDEX. 623 
 
 LAND — contiiviicd. 
 
 delay in giving possession, 204 
 
 express agreement to convej' notwithstanding defect of title, 204 
 price of re-sale evidence of market value, 204 
 damages in suit for specific performance, 205 
 where contract void ah initio, deposit may be recovered, 198 
 and a moiety of auction duty, 198 
 
 but neither interest nor expenses of investigating title, 198 
 contract may be rescinded for defect of title, 198, 205 
 
 and purchaser need not accept doubtful title, even with an 
 indemnity, 205 
 
 but if let into possession, cannot rescind, 205 
 nor can he retain part, and abandon part of same pur- 
 chase, 198 
 at an auction, ea-ch lot a distinct sale, 199 
 damages liquidated by consent, 204 
 
 damages for not accepting conveyance are the injury plaintilf has sus- 
 tained, 206 
 usual conditions of sale, 206 
 forfeiture of deposit, 207 
 interest on purchase-money, 198 (n), 206 
 See CovEXAXTS for Title, 208—219 
 Eent, 254—262 
 Covenants to Repair, 263 — 274 
 
 TO BUILD and mink, 274 — 276 
 Trespass, Easements, Mesne Profits, 430—443 
 
 LANDLORD AND TENANT. See Rent, Covenant, Suretysiiip, Unper- 
 Lessee, Holding Over, Use and Occupation, Illegal 
 Distress. 
 
 LEGAL PROCEEDINGS, loss arising from, 190 
 
 from interlocutory injunction, 190 
 See Costs of Actions. 
 
 LLiBILITY to pay money is a ground of damage, 108 
 
 unless it is only a moral, not legal, obligation, 108 
 
 LIBEL. See Defamation. 
 
 LIFE INSURANCE : full amount with interest may be recovered, 342. 
 measure of damages on an insurance against accidents, 343 
 covenant not to cause forfeiture of policy, 280 
 
 may be taken into consideration in action by executors for injury 
 causing death, 516 
 See Insurance. 
 
 LIGHTS, actions for injury to. See Easements, 443—446 
 LIMIT of damages, the amount claimed, 143, 573. See Damages. 
 LIQUIDATED DAMAGES. See Damages, Penalty, 
 LOAN, contracts of, 19, 56 (n) 
 
 LOSS of freight, goods, or ship. See Carriers, Average, Marine In- 
 surance. 
 
 MALICE. See Motive.
 
 624 INDEX. 
 
 MALICIOUS ARREST. See False Impkisonmekt, 451—453 
 
 MALICIOUS PROSECUTION ; damage must be shown, 447 
 
 liability to pay extra costs is not damage, 448 
 
 nor can they be recovered, if paid, 448 
 malice and want of probable cause, 45, 449 
 
 evidence of bad character of plaintifl', 449 — 451 
 not barred by recovery in action for false imprisonment, 452 
 
 MANNER of committing an act may aggi-avate damages, 44, 412, 586. Sae 
 Motive. 
 
 MARINE INSURANCE, 351—362 
 
 when loss is total without abandonment, 351 
 constructive total loss in case of the ship, 352 
 in case of cargo or freight, 352 
 delay of voyage, 353 
 notice of abandonment must be given, 354 
 otherwise only average loss, 354 
 
 election to treat as a partial loss precludes abandonment, 354 
 where the insurance is free of particular average. 355 
 
 it is immaterial whether goods were packed in separate 
 parcels, 356 
 and the ordinary memorandum protects underwriters, 356 
 total loss may become partial by matter subsequent, 357 
 
 unless notice of abandonment has been given and ac- 
 cepted, 357 
 value may be agi-eed on beforehand, as liquidated damages, 358 
 mode of valuing goods or freight, in an open policy, when loss is 
 total, 358 
 insurer is entitled to benefit of salvage, 359 
 
 and of any other rights or remedies of the insured, 359 
 mode of valuing partial loss in case of ship, 360 
 
 deduction on account of nev/ for old materials, 361 
 in case of goods or freight, 361, 362 
 charges incurred for preservation of vessel, cargo, or freight, 363 
 
 for provisions and wages iu case of embargo, 363 
 liability of insurers in respect of a general average loss, 364 
 how for bound by adjustment in a foreign port, 364 
 interest on policy, 162, 365 
 
 See Average, 365—373. Ixsuraxce. 
 
 MARKET VALUE, meaning of, 26 
 
 where land is re-sold by vendor the price is primd facie evidence 
 of the market value in estimating loss of first vendee, 204 
 
 MARRIAGE. See Breach of Promise. 
 
 jMASTER ; cases in which a reference will be allowed in place of writ of in- 
 quiry, 561 
 
 MASTER AND SERVANT. See Hiking. 
 
 MEDICAL attendance, 
 
 expenses of when recoverable by father as damages for injury to his 
 child, 108 
 
 MESNE PROFITS, against whom action will lie, 439 
 
 damages when limited to time of actual possession, 439 
 
 recoverable for entire period over which title extends, 440 
 unless occupant is not a trespasser till entry, 440
 
 INDEX. 625 
 
 MESNE TROFITS— continued. 
 
 damages, effect of judgment in ejectment on riglit to, 440 
 not confined to mere rent of premises, 440 
 nominal, unless duration of defendant's possession is proved, 
 
 441 
 costs of previous ejectment, 441 
 mitigation of damages ; payments, improvements, 442 
 a remittitur davma in ejectment, no bar to action for, 442 
 when recoverable in ejectment, 443 
 
 effect of such recovery, 443 
 actions by and against executors, 443 
 
 MINE, actions on covenant to, 275 
 for rent of, 254 
 
 for taking minerals from, 385 — 390, 435 
 for injury to, 436 
 for not replacing mining shares, 185 
 
 MISREPRESENTATION, results of, 197 
 MISTAKE IN ASSESSMENT. See Assessment. 
 
 MITIGATION OF DAMAGES, 
 
 evidence not admissible if it could have been pleaded in bar of the 
 
 action, 109, 395, 452, 479 
 nor for all the purposes of a cross action, 110, 415 
 nor when merely res inter alios acta, 110 
 See Judgment Recovered. 
 right of action against a third party, 111 
 matter subsequent not ground for reducing damages in contract, 
 
 112 
 inferiority of goods or work, 114 
 
 not admissible in actions for freight, or on an attorney's bill, 
 113 
 unless no benefit has been obtained, 113 
 measure of reduction in such cases, 115 
 work done or materials supplied by the employer, 115 
 injury to or loss of employer's goods, 115 
 sale of specific goods with warranty, 116 
 evidence in mitigation of apparent injury, 117 
 reasonable cause or absence of malice, 119 
 injury increased by plaintiff's conduct, 118 
 obligation of plaintiff to take steps to reduce his damage, 174 
 imperfect title to goods or lands, 395 
 re-delivery of goods or re-payment, 398, 413 
 libellous character of property taken, 413 
 absence of malice and bona fides, 119, 449, 451, 479 
 in newspaper libels, damages recovered elsewhere, 481 
 
 See Seduction, Adultery, Breach of Promise, Reduction 
 OF Damages. 
 
 MIXED ACTIONS, damages are recoverable in, 1 
 
 See Dower, Ejectment, Quare Impedit, 375—378 
 
 MONEY, contract to pay, damages limited to principal and interest, 10, 42 
 but special damage has been allowed on special contract, 19 
 contract to lend, 19, 56 (n). 
 See Damages. 
 
 M.D. S S
 
 626 INDEX. 
 
 MONEY PAID BY SURETY, wliat amounts to. See Suretyship, 329—332 
 
 MOPi-AL obligation to pay money, if not a legal one, is not a ground of damage, 
 lOS 
 
 MORTGAGE DEED, interest on, 161 
 
 when it will support a count for money paid by surety, 332 
 
 MOTIVE not a ground of damage in case of contracts, 43 
 
 except in breach of promise of marriage, 43, 482 
 otherwise in case of torts, 44. See Titles of Actions, 
 but motive of one no gi-ound of damage in action against him 
 and another, 45, 412, 452, 568 
 nor in action against principal for act of his agent, 
 45 (n), 471 
 ground of mitigation of damage, 119. See Titles of Actions, 
 evidence of character in proof of probable cause, 449, 480 
 See Mitigation of Damages. 
 
 MUTUAL CREDIT IN BANKRUPTCY. See Set-off, 134-141 
 
 NEGLIGENCE, when the plaintiff may recover, though himself in fault, 66 — 69 
 when himself a trespasser, 68 
 See CoNTiiiEUTouY Negligence, Third Pakty. 
 in Admiralty Courts, damages divided when both parties are to 
 
 blame, 411 
 liability of shipowners for loss caused by, limited, 306, 41 1 
 
 of carriers by land limited in case of certain articles, 
 308, 311 
 effect of gross negligence at common law, 308 
 since the Carriers Act, 310 
 See Carkiers. 
 damages for personal injury caused by, 49, 453 
 personal sutt'ering, 454 
 loss of future income, 455 
 
 plaintiff's income aliunde may be considered, 455 
 no reduction in respect of insurance, 455 
 where the action is by the executors. See Executors, 
 
 516 
 Employers' Liability Act, 456 
 See Sheriff, 456 — 464 
 Attorney, 464 — 465 
 goes in mitigation of damages in action of seduction, 489 
 or of adultery, 492 
 
 NEWSPAPER, apology for libel in, 482 
 
 damages recovered elsewhere, 482 
 
 NEVr TRIAL has taken the place of an attaint, 583, 584 
 
 and of the old jurisdiction to increase or abridge damages, 581 
 
 can now be granted for purpose of assessing damages without 
 
 interfering with otlier hndiugs, 589 
 in what cases allowed, 582 
 
 not allowed, where damages are unli(|uidated, on ground of small- 
 ness, 582 
 
 unless in case of misdirection or miscalculation, 582 
 or misconduct of tlie jnrj', 584 
 
 I
 
 INDEX. 627 
 
 NEW TRIAL— conti7iued. 
 
 allowed, for smallness, where there is a measure of damaf;;es, 584 
 not where the plaintiff has allowed damages to be assessed 
 contingently, 584 
 •when allowed on the ground of dannges being excessive, 45, 584 
 examples of cases in which refused, 584 — -587 
 ill which granted, 589 
 when verdict is under 201., 589 
 
 and perverse, or on a matter of permanent right, 589 
 or in cases tried before au inferior Court, 589 
 modern rule of practice, 585 
 
 if jury could reasonably give the amount the verdict stands, 
 585 
 
 NOLLE PROSEQUI, against some where damages formerly assessed severally, 
 572 
 against defendants who pleaded matter of personal dis- 
 charge, 572 
 against those who pleaded in tort, where some made 
 default, 572 
 
 NOMINAL DAMAGES must be given wherever there is a right of action, 
 though no loss is proved, 4, 543 
 
 but not where damage is of the essence of the action, 5, 6, 
 434, 445, 4»J0, 467, 543, 553 
 for detention of debt, 233 
 
 cannot be sued for when defendant has been paid before 
 
 action, 233 
 otherwise when payment is made after action brought, 234, 
 236 
 
 unless accepted in bar of damage, 234 
 by consent, on re-delivery of chattels, 399 
 on a writ of inquiry, 562 
 
 NOTE, undertaking to ])ay by, carries interest, 153 
 breach of agreement to give, 170 
 
 whether it will support count for money paid by surety, 339 
 set-off of joint and several note, 123 
 See Bills of Exchange. 
 
 NOTICE, menial servants entitled to one month's, 231 
 who are menials, 231 
 damages for dismissing without, 231 
 want of, does not make distress void, 426 
 
 NOTING, when recoverable, 253 
 
 NUISANCE, damages for continuing, 106, 107 
 
 OMISSION to assess damages, 574 
 
 when remedied by writ of inquiry, 575 
 or new trial, 576 
 
 PACKED PARCELS, 284 
 
 PARTNERS, set-off between, 123 
 
 interest on money drawn'out in excess of share, 1G3 
 
 s s 2
 
 628 , INDEX. 
 
 PARTY-WALL, liability of tenant for repairs of, 272 
 
 PATENT, infringement of, 54 (n) , . . , i • i 
 
 measure of damages, the royalty wliicli ought to have been paid, 
 54 (n) 
 
 PAYMENT of debt before action, 233 
 
 after action, 109, 234, 236 
 into Court, 114 
 by surety, what amounts to, 330 
 of produce of goods wrongfully taken, 413 
 in advance for goods never delivered, 185 — 190i 
 by tenant, when it may be deducted from rent, 262 
 by sheriff, when admissible in reduction of damages, 419 
 to recover goods Avrongfully taken, a ground of damage, 418 
 may be deducted in action for mesne profits, 442 
 
 PAYMENT INTO COURT must include interest due, 164, 246 
 
 PENALTY when sued for as such, less may be given, 144 
 
 plaintiff may waive, and recover more by suing for breach of con- 
 tract, 144, 242 
 relieved against in equity, 145 
 lield to be such when so stated without controlling words, 146 
 
 and when pavment of a smaller sum is secured by a greater, 
 
 148 
 but not necessarily where one sum fixed for breach of several 
 
 conditions, 153 
 mere use of words "liquidated damages" not decisive, 147 
 no inflexible rule but intention of parties to be considered, 155 
 no damages in action for, by a common informer, 3 
 
 otherwise when given to party grieved, if amount certain, 3 
 
 but not when uncertain, as treble damages, 3 
 only one can be recovered in an action against several, 3 
 provisions of 8 & 9 W. III. c. 2, as to assignment of breaches, 237 
 statute compulsory, 238 
 same judgment as before, 238 
 different modes of proceeding under statute, 238 
 to what cases it extends, 240 
 when it does not apply, 240 
 not binding upon Crown, 241 
 damages limited to amount of, and costs, 241 
 
 satisfaction entered on pajonent, 242 
 for non-attendance of witnesses, 466 
 
 must be assessed by Court at Westminster, 467 
 in charter-party where not liqiiidated damages, larger sum n.ay be 
 recovered, 301 
 
 PHYSICIANS, fees of, 108, n. (a) 
 
 PLEADING. See Breaches, 237—242 
 
 by executor sued for rent, 526 
 without assets, 530 
 
 See Special Damage, 553 — 558 
 POINT OF LAW, judgment on, 565 
 
 POLICY, See Fire, Life, and Marine Insurance; Ikterest; Covenant.
 
 INDEX. 629 
 
 POOR RATES, writ of inquiry may issue to assess damages if omitted, 574 
 
 irregularity in distraining does not amount to trespass ab initio, 
 429 
 
 POSSESSION, covenant to deliver up, 281 
 
 POSTAGE on return of an inland bill must be specially laid, 253 
 
 POSTEA. See Amendment, 577 
 
 PREMATLTRE EXPENSE incurred while contract incomplete cannot be re- 
 covered, 72, 199 
 
 PRINCIPAL AND AGENT, 537—552 
 
 when principal may sue aj,'ent, 537 
 
 agent liable for all loss arising from his neglect, 538 
 
 amount of loss is the measure of damage, 540 
 
 loss must be the necessary and proximate result, 541 
 
 nominal damages though no loss is proved, 543 
 
 action will fail, if all possibility of loss is negatived, 543 
 agent is bound to account for profits, 544 
 
 and must not sell or buy for himself, 545 
 set-off of debt from agent in action by principal, 127 
 
 of debt from principal in action by agent, 127 
 where agent may sue principal, 548 
 
 commission on sales, 549 
 
 revocation of authority, 549 
 
 agent is entitled to an indemnity, 550 
 unless the act done is illegal, 551 
 
 betting agents, 551 
 
 stock excliange brokers, 552 
 action against one professing to have authority as agent, 94, 33b, 
 
 342 
 rule laid down in CoUen v. JVright, 95, 337 
 
 costs of unsuccessful legal proceedings may be recovered if reason- 
 ably adopted, 94, 95, 337—342 . . ■, . 
 motive, not a ground of damage in action against principal ior act 
 of his agent, 45 (n), 471 
 
 PRINCIPLES on which damages are given. See Damages. 
 PROBABLE CAUSE, evidence of bad character in support of, 449, 480 
 
 PROFITS in general too remote to be a ground of damages, 54, 56, 184, 192, 
 
 200, 298 , . . , 1 f KK 
 
 unless the profit was itself the thing contracted tor, 55 
 Scotch law different in this respect, 58 
 difference between primary and secondary prohts, 55 
 See Damages. 
 
 PROHIBITION, damages for suing in Ecclesiastical Court after, 3 
 costs of proceedings in Court below, 85 (n) 
 
 PROSECUTION. See Malicious Prosecution.
 
 630 INDEX. 
 
 TROSPECTIVE DAMAGE maybe allowed for when itself natural and not a 
 new ground of action, 102, 107, 436, 464, 472 
 a legal (not merely moral) liability to pay money, a ground 
 
 of, 108, 322 
 for continuing cause of action, 568 
 
 PROTEST. See Bills of Exchange, 252 
 
 PUBLIC COMPANY, set-off between companies in winding-up and their 
 members or contributories, 129, 140 
 what a sufficient demand of calls to carry interest, 
 
 166 (n) 
 refusal to register shares, 56 
 
 PUBLIC OFFICER, action against, for breach of duty must be based on 
 damage, 7 
 
 PURCHASE MONEY, deed is conclusive as to amount of, 215 
 interest on, 198 (n) 
 forfeiture of deposit, 207 
 
 QUANTUj\I MERUIT, extras must be sued for on a, 220 
 
 work not done according to contract, 222 
 
 or whose completion is prevented by defendant, 223 
 servant wrongfully dismissed may sue on a, 230 
 a bill cannot be acceiited upon a, 251 
 
 QUARE IMPEDIT, damages in, given by statute, 375 _ 
 value of church, how estimated, 376 
 
 damages after six months where bishop has not collated, 
 376 
 ■where he has, but incumbent afterwards removed, 376 
 against whom recoverable, 376 
 where there has been no actual loss, 377 
 meaning of '"six months," 377 
 when two years' value may be recovered, 377 
 
 QUIET ENJOYMENT. See Covenant for, 210 
 
 RAILWAY COMPANY, damages for undue preference by one customer over 
 another, 305 
 
 See Carkiers. 
 
 RATES, covenant to pay, 280 
 
 REAL ACTIONS, no damages recoverable in, 1 
 
 RE-DELIVERY OF CHATTELS, goes in mitigation of damages, 398 
 
 staying proceedings upon, 400, 407 
 statutory power to compel, 406 
 
 REDUCTION of damages after verdict, where matter subsequent has occurred, 
 
 112 
 
 by Court must be with plaintiff's consent, 581, 588 
 
 but not necessarily with defendant's, 681 
 
 See Mitigation of Damages.
 
 INDEX. 6B1 
 
 RE-EXCHANGE. See Bills of Exchange, 251 
 REFERENCE to Master in xilace of writ of inquiry', when allowed, 561 
 REGISTRAR of County Court, liability of, in resiiect of replevin bonds, 457 
 REMITTITUR DAMNxi in ejectment, no answer to action for mesne profits, 
 
 REMOTENESS OF DAMAGE, 47—83 
 
 what is meant by, 47 
 is for judge and not for jury, 47 (n), 578 
 no distinction of rules in contract or tort, 48 
 See Damages, Profits, Costs of Actions, 
 Conspiracy, Fraudulent Misrepb. 
 sentation. 
 
 RENEW, covenant to, damages depend partly on value of land and partly on 
 title of lessor, 218 
 
 RENEWAL FINE, covenant to pay, 276 
 
 RENT of coal-mines, according to amount raised, 254 
 
 use and occupation, at common law and by statute, 255 
 agreement for amount, void by Statute of Frauds, 255 
 
 where defendant has not enjoyed under it, 255 
 payment not conclusive as to amount, 256 
 value of holding may be increased by extrinsic circumstance?, 256 
 
 annual expenses must be deducted, 257 
 plaintiff can only recover for period of legal title, 257 
 no apportionment, where there has been a surrender or eviction in the 
 middle of the current period, 253 
 nor where lessor has evicted from part of the land, 258 
 
 unless in case of forfeiture or condition for entry, 258 
 nor in case of possession by prior tenant for whole period of lease 
 258 
 apportionment exists in case of surrender of part of the land, 258 
 or eviction by title paramount, 258 
 or severance of the reversion, 258 
 and by statute rent now accrues from day to day, 259 
 
 apportioned part payable when the entire rent would have beei 
 payable, 2(50 
 tenant holding over after giving notice to quit, 260 
 what notice is sufficient, 260 
 holding over after receiving notice to quit, 261 
 notice must be in writing, 261 
 payments made by tenant, in discharge of landlord, may bo deducted, 
 262 
 though landlord might have freed himself from liability, 262 
 should be pleaded as payment, 262 
 and deducted from the rent next due, 262 
 irregularity in distraining for, does not make party trespasser ab initio. 
 
 See Illegal Distress, 421 
 liability of executor for rent incurred in life of testator, 520 
 for rent due since the death, 524 
 
 mode of estimating profits of land, 528 
 ■where term has been assigned, 528
 
 632 INDEX. 
 
 REPAIR. See Covenant, 263—273 
 Dilapidations, 511 
 liability of executor on covenant to, 529 
 duty of vendor, as trustee for vendee, to keej) in repair, 267 
 
 REPLEVIN, damages may be obtained by both parties, 420 
 for plaintiff, 420, 575 
 
 defendant could not obtain at common law, 420 
 given by statute.. 421, 575 
 
 REPLEVIN BOND, liability of sureties and sheriff in respect of, 456—459 
 of Registrar of County Court, 456 
 
 REPUTATION, evidence of, in actions for defamation, 4S0 
 
 REVERSIONER, action by, for non-repair. See Covenant, 263—273 
 for injury to land. See Land, 431 
 to goods, 398 
 to easements, 445 
 
 RIGHT OF ACTION, against third parties not a bar, 111, 476 
 
 whether a ground for mitigation of damages. 111, 398 
 
 RIGHT TO BEGIN, when plaintiff proceeds for unascertained damages, 577 
 
 SALARY, now within statute of apportionment, 232 
 See HiKiNfi, 223—232 
 
 SALE. See Goons, Land, Shares, Stock, Warranty, Co\t;nant, Work 
 AND Labour. 
 
 SALVAGE, an element in constructive total loss, 352 
 
 what it is ; insurer entitled to benefit of it, 359 
 
 SCRIP, damages for detention of certificates, 56, 407 
 where there has been a fall in value, 401 
 
 SEASON, value of article dependent on season 13 
 damages for loss of, 14 
 
 SEDUCTION, damages are given for example's sake, 487 
 
 not limited to consequential loss, 487 
 ought to be governed by situation in life of parties 
 evidence of promise of marriage, 488 
 general evidence of chastity, when admissible, 488 
 mitigation of damages, immodest conduct of female, 489 
 
 negligence of plaintiff, 489 
 in action for breach of promise of marriage, 482 
 of servant from service, damages are the loss sustained, 106, 489 
 action will not lie where master has recovered a penalty, 
 489 
 
 SERVANT. See Work and Labour, 220—223. Hiring, 223—232. Seduc- 
 tion, 489
 
 INDEX. 633 
 
 SET-OFF, statutory enactments, 119 
 
 rules applicable to, do not apply to counter-claims, 120, 122 
 
 debts only could be set off, 120 
 regulated by law of country where remedy is sought, 119 (n) 
 judgments a ground of. 120 
 
 but not a verdict before judgment, 120 
 money due under an order of Nisi Prius, 121 
 debt must be completely due, and remain due, 121, 122 
 
 must be due in the same right, 122 
 
 partners, joint and several bond or note, husband and 
 wife, 123, 124 
 
 executors, 124 
 
 trustees, 126 
 
 public body having separate accounts at their banker's, 
 127 
 
 agents and brokers, 128 
 
 ditference where the broker is del credere, 128 
 between companies in winding up and their members or contri- 
 
 butories, 129 
 sometimes allowed formerly in equity when not at law, 129 
 where one of the cross demands was of an equitable nature, 130, 132 
 set-off against assignee, 132 
 
 exceptions to rule that debts must be mutual, 133 
 set-olf of joint and separate debts, 133 
 
 of one suit against another, in avoidance of circuity of action, 134 
 mutual credit in bankruptcy, 134 
 
 what is a mutual credit, 135 
 
 must be due in same right, 137 
 
 a mere trustee cannot set-otf, 137 
 
 must exist at time of bankruptcy, though no actual debt, 
 138 
 
 every debt provable against bankrupt's estate may be 
 subject of, 139 
 
 future liabilities, 139 
 
 set-off extinguishes debt, 141 
 
 in administration, 139 (n) 
 
 in winding up of companies, 139 (n), 140 
 value of missing goods caunot be set off against freight, 289 
 by tenants of compulsory payments. See Rent, 262 
 
 SEVERAL COUNTS, assessing damages upon, 566 
 
 or upon the same count containing several demands, 566 
 
 distinction in actions for slander, 567 
 
 new procedure, 568 
 
 in detinue damages should be assessed separately, 568 
 
 SEVERAL DEFENDANTS, in case of verdict against all, damages under old 
 
 system of procedure were assessed generally, 
 568 
 under new system, damages may be assessed 
 separately, 570 
 where some plead, and others pay money into court, 
 
 571 
 where there is judgment by default against all, 571 
 where some appear and others make default, 571 
 new procedure, 573 
 
 effect of lecovery against one in action against another, 
 who might have been joined 573
 
 634 
 
 INDEX. 
 
 SHARES, damages for refusnl to accept, 176 
 
 time for delivery when shares are not in existence, 176 
 
 what will satisfy the contract in such a case, 176 
 damages for not returning shares, governed by the same principles as 
 
 in case of stock, 185. See Stock. 
 action for money had and received, when paid for in advance, 186 
 damages resulting from interlocutory injunction, 190 
 company improperly registering a perso^i's name, and giving him 
 certificates of shares, held responsible to an innocent vendee, 
 192 (n) 
 damages for refusing to register, 56 
 fraudulent prospectus, 197. 
 See ScEiP. 
 
 SHEKIFF, damage in trespass again-st, 415 
 
 acting bond fide, receives protection of court, 415 
 where door has been broken open in executing fi. fa., 416 
 or ca. sa., 416 
 outhouse may be broken open on a fi. fa., but not to distrain, 
 
 418 
 seizing goods out of jurisdiction, 418 
 
 liable for money paid to recover goods, and for costs of arrest, 418 
 when expenses of wrongful sale by, may be allowed, 418 
 liability of execution cieditor, 418 
 mitigation of damages, payments made b}', 419 
 
 verdict of inquest, 419 
 actions against for taking no rei)levin bond, or an insuflScient one, 456 
 
 damages could nut exceed penalty and costs, 457 
 
 or the value of rent, or goods, whichever was least, 458 
 
 not liable for rent dite since distress, 458 
 
 costs of proceeding against the sureties, 459 
 
 where bond had been lost, 459 
 
 replevin bonds now issued by registrar of county court, 457 
 for other breach of duties, damages are measured by loss caused, 6, 
 459-464 
 
 when it is necessary to prove actual damage, 460 
 escape after arrest, 460 
 
 action of debt for, abolished, 461 
 
 measure of damage in action on the case for, 461, 462 
 
 where injury increased by plaintiff's conduct, 118 
 action to recover money levied by, and not paid, 463 
 treble damages for extortion by, 463 
 
 effect of statute 1 Vict. c. 55. ..463 
 
 declaration for extortion, 464 
 extra costs cannot lie recovered against, 464 
 costs of action against, when recoverable from execution creditor, 101 
 
 SHIP. See Marine Insurance, General Average. 
 
 SHIPOWNER. See Carriers. 
 
 SLANDER. See Defamation. 
 
 SPECIAL CONTRACT, by carriers, may be a bar to any action for negligence, 
 310 
 must be reasonable and in writing, under Railway and 
 Canal Traffic Act, 311
 
 INDEX. 635 
 
 SPECIAL DAMAGE, must be alleged when it is tlie essence of the action, 553 
 where tlie injury is a public one, damage must be tangible, 554 
 
 but unnecessary to show j.articular instances, 554 
 need not be alleged, if the facts imply a legal injury, 473, 554 
 but only such injury as the law will imply, cau be proved, 
 
 474, 554 
 matter which would itself be ground of action must be 
 alleged, 555 
 must be laid in trover, 555 
 
 and in all other cases where it would not be implied, 556 
 must be as specific as the case will allow, 556 
 distinction between jjarticular and special damage, 556 
 must be stated with accuracy, 55S 
 
 having regard to the circumstances, 475, 557 
 pleading tmder 8 & 9 \V. ill. c, 11. ..237, 558 
 iuterrogat'jries as to, 558 
 See Damages. 
 
 SPECIFIC PERFORMANCE, damages in addition to or substitution for, 205. 
 
 591 ' 
 
 are in discretion of court, 592 
 
 not given after lapse of time, 592 
 
 nor if plaintitf's own act prevents specific 
 
 performance, 592 
 under general prayer for relief, 592 
 costs of suit for, caunot iu general be recovered 
 
 by vendee of land against vendor, 199 
 but damages and costs may sometimes be re- 
 covered, 206 
 See Chancery Division. 
 
 STATUTORY OBLIGATION, breach of, 496 
 
 remedy iu general by action, 496 
 
 but depends on object and wording of statute, 496 
 no action for public wrong, 496 
 but special damage is a ground of action, 497 
 
 if within the mischief of statute, 497 
 general rule of law as to form of action, 497 
 statute attirming common law right, 498 
 
 plaintiifs rights are cumulative, 498 
 statute creating right, but giving no remedy, 499 
 
 plaintiff's remedy by common law action, 499 
 statute creating right and prescribing a remedy, 500 
 
 plaintiff must enforce the particular remedy, 500 
 rule in criminal cases, 500 
 
 if statute prohibits, indictment lies, 500 
 
 if not, penalty only can be proceeded for, 500 
 no such rule in civil cases, 500 
 
 nor that person injured can in every case sue for damages, 
 503 
 destination of penalty not conclusive as to right of action, 504 
 remedy by injunction, 504 
 penalties, when cumulative, 504 
 
 when successive may be recovered, 505 
 
 when against one of several persons, 3 
 who may sue, 506 
 
 party aggrieved, 506 
 
 common informer, 507 
 
 should nut be a corporation, 508
 
 636 INDEX. 
 
 STATUTORY OBLIGATION— continued. 
 statutory plaiiititf, 507 
 
 need not sue within two years, 508 
 suit by the Crown, 508 
 when right to sue is shared by the Crown and iafonner, suit may 
 be brought for respective shares, 508 
 
 STAYING PROCEEDINGS, upon re-delivery of chattels, 400, 407 
 
 in action against the sherift' for amount levied, 463 
 
 STOCK, damages for refusal to accept, 175, 176 
 
 time for delivery when not yet in existence, 176 
 what will satisfy the contract in such a case, 176 
 actions for not replacing stock, price taken at time of trial, 184 
 or at the day when it ought to have been replaced, 184 
 or at the day when it was transferred, 184 
 
 but not at the highest intermediate price, 184 
 
 profits cannot be allowed for, when contingent, 184 
 but bonus on stock added, 185 
 same rule applies to mining shares, 185 
 transfer of, will not support count for money paid, 332 
 See Shares ; Scrip. 
 
 STRIKES, delay caused by, 295 (n) 
 SUB-LESSEE. See Uxder-Lessee. 
 
 SURETYSHIP, contracts of, 316—336 
 
 I. Actions by the principal creditor against the surety, 316 — 329 
 surety is liable for interest, 317 
 amount of loss must be proved, 317 
 and that it arose from cause insured against, 317 
 dividend must be apjiortioned in case of bankruptcy, 318 
 unless whole debt guaranteed, 319 
 
 though liability limited in amount, 319 
 damages without proof of loss, when promise to do a thing is 
 absolute, 321 
 when promise is to indemnify, 321 
 mere delivery of a bill is not a loss, 322 
 nor liability to suit, or commencement of action, 322 
 I^ayment of costs, or judgment recovered, is a damage, 99, 323 
 general indemnity only extends to lawful acts, 324 
 
 otherwise when an individual is named, 325 
 assignee of lease is a surety for assignor, 326 
 but under-lessee is not, 327 
 
 therefore costs of action against his lessor not recoverable, 
 327 
 liability of sureties on a replevin bond, 327, 456 
 
 lor a sheriff's bailifl', 327 
 effect of a compromise, where there is an indemnity, 328 
 
 defendant must show that it was disadvantageous, 329 
 not necessary to give him notice, 329 
 II. Actions by the surety against the principal debtor, 329 — 333 
 where the surety has taken a security, or indemnity, 329 
 when he has taken none, action dates from payment, 329 
 payment may be made without suit, 330 
 by note ; bond, 330 
 to prevent execution sufficient, 331 
 goods taken in execution not a, 331
 
 INDEX. 637 
 
 SURETYSHIP— COTi<i?M<e(7. 
 
 nor transfer of stock, nor mortgage, 332 
 
 unless equity of redeniptiou released, 332 
 interest may be given, 332 
 action by bail, 332 
 
 III. Actions by surety against co-surety, 333—335 
 when right to sue arises, 333 
 
 proportion for which each surety is liable, at law and inequity, 
 
 334 
 rule of equity will prevail in future, 334 
 when they are bound by different instruments, 334 
 surety cannot claim against one whom he has induced to be 
 surety, 335 
 
 nor where there is an agreement to the contrar)-, 335 
 interest allowed in equity, 334 
 costs of suit, 334 
 
 under-lessees not sureties for each other, when rent is entire, 
 335 
 
 unless each is bound to pay the rent of the whole, 335 
 
 IV. Implied indemnity, 335 
 
 arising by implication at law, 335 
 
 goods of tenant distrained for rent due by landlord, 335 
 lessee and assignee of lease, 336 
 calls on shares after sale, 336 
 mortgagor and mortgagee, 336 
 agent and principal, 336 
 in stock exchange transactions, 336 (n.) 
 one who professes to be an agent warrants that he is so, 336 
 and must indemnify those who act on his supposed 
 
 authority, 336 
 and is chargeable for all loss arising from the falsity of his 
 
 representation, 341 
 but not for damage which would have accrued whether 
 his representation were true or not, 341 
 costs of actions, 94, 95, 337, 441 
 See Life Insurance, 342 
 
 Fire Insurance, 343—351 
 Marine Insuran'ce, 351 — 364 
 Average, General, 364 — 373 
 
 TELEGRAPHIC MESSAGES, damages for non-delivery of, 29 
 
 negligence in transmitting, 314 
 Postmaster-General not responsible for mistakes, 
 315 
 nor is the sender of themessage, 315 
 
 TENDER, interest does not run after, 163, 237, 246 
 its effect upon a distress, 423, 427 
 
 THIRD PARTY, damage from wrongful act of, too remote, 74, 476 
 
 otherwise when it results naturally from defendant's wrong, 72 
 in which case the whole damage, though increased by tlie 
 injurious conduct of the third party, may be recovered, 
 72. See Right of Action. 
 liability of a slanderer for repetition by, 76—80 
 cases where a wrong to A. causes injury to B., 80 
 
 TIME, period of, in reference to which damages may be assessed, 101— 108 
 damages cannot be given for anything before cause of action, 101
 
 638 INDEX. ,,„ ^ .6a—, ' 
 
 TIME — continued. 
 
 damage subsequent to action may be allowed for -when it is tlie natural 
 
 result anil not itself a new cause of action, 102 
 probable future loss, 105 ^ 
 
 Interest given up to judgment signed, 105 
 where evidence of specific subsequent injury allowed, 105 
 a legal (not merely moral) liability is ground of recovery, 108 
 damages for continuing nuisance, which is a new cause of action, are 
 not recoverable, 107, 108 
 
 except under Ord. 36, r. 58, to time of assessment, 107 
 
 TITHES, treble value, in action for not " setting out," 579 
 
 TITLE, want of, in plaintiff will mitigate damages in trover, 395 
 so in trespass to goods, 413 
 
 and in actions for injury to land, 430 
 See Covenant for Title. 
 
 TITLE DEEDS, damages for the conversion or detention of, 391, 407 
 
 TOPiTS, damages in actions of, 44 
 
 motive a ground of, 45, 412, 437, 449, 468 
 
 unless in actions against several, 45, 412, 452, 568 
 or against a princi]ial for the acts of his agent, 45 (n), 471 
 are a penalty, and not merely a compensation, 45, 486 
 See Damages. 
 
 TEADE-MARK, INFRINGEMENT OF, nominal damages recoverable for, 5 
 
 special damage by loss of custom or otherwise must 
 
 be shown, 54 (n) 
 cost of litigation where plaintiff innocently, at 
 request of defendant, imitated another's trade- 
 mark, 96 
 
 TRANSFEROR OF BILL WITHOUT INDORSEMENT, liability of, 253 
 
 TREBLE DAMAGES, 574 
 
 TRESPASS TO GOODS, damages in general their value, 407 
 fixtures may be valued as sucli, 407 
 special damages, if not too remote, 407 
 
 in interpleader, creditor only responsible up to time of order, 4C8 
 collision at sea, demurrage, 408 
 wages of crew during repairs, 410 
 employment of another ship, 410 
 
 wliere both parties to blame, damages in Admiralty Couit 
 divided, 411 
 negligence of plaintiff, when a bar to action, 66—74 
 limited liability of shipowners. See Carriers, 306 
 
 carriers. See Carriers, 307 — 311 
 costs of setting aside judgment under which goods were taken, 
 84, 87 
 of former action against plaintiff, 88 
 manner in which goods were taken a ground of damages, 44, 
 412 
 where action is against several, 412 
 or by several, 412 
 seizures under Customs Acts, 395, 413
 
 INDEX. 639 
 
 TRESPASS TO GOODS— contimied. 
 
 mitigation of damages, 413 
 
 libellous character of thiiicr taken, 413 
 
 want of interest in plaintiff, 413 
 
 repayment after action, 413 
 
 seizure under an existing judgment, 414 
 
 recovery on a policy of insurance, 415 
 
 debt due from plaintiff to defendant for goods taken, 397, 
 
 415 
 payments made by executor de son tort, 118 
 See Shehiff, 415 — 419 
 Replevix. 420 
 Ili.egat. Distress, 421 — 429 
 executors may sue or be sued for, 513, 521 
 
 TRESPASS TO LAND, 430—439 
 
 damages are measured by the injury done, not the cost of 
 restoration, 430 
 vary according to extent of phiiutitT-s interest, 430 
 may be obtained by several entitled in succession, 431 
 nominal, if uo proof of duration of interest, 433 
 by purchaser against vendor, 433 
 right of tenant to carry away soil, 433 
 reservation of rights in surface to grantor, 434 
 damages for mining and carrying away minerals, 435 
 
 where there is a disputed title, 435 
 total deprivation of land, 435 
 cases of continuing trespasses, 106 
 prospective injury, when an element in damages, 435 
 
 effect of former recovery, 435 
 in case of co-trespassers, 437 
 
 different acts may be laid as substantive damage, 437 
 or as matter of aggravation, 433 
 or as distinct trespasses, 438 
 
 must be pleaded with all legal requisites, 433 
 damages not limited to actual injury proved, 438 
 vindictive damages, 438 
 
 compensation for acts done by authoiity of 
 Parliament, 439 
 See Mesne Profits, 439—443 
 Easements, 443—446 
 executors may sue or be sued for, 513, 521 
 
 TRESPASSER ab initio, an irregularity in distraining for rent does not make, 
 421 
 when a wrongful distrainor is a, 423 
 
 may be so, as to part of distress, and not as to resilue, 423 
 when damages may be recovered by, 68 
 
 TROVER. See Conversion of Goods. 
 
 TRUSTEE, set-off in actions by or against, 126 
 
 trust debt is not a mutual credit, 137 
 
 damages recoverable by party to a contract as trustee for another, 5 
 bailees may insure for "full value, and are trustees for residue abave 
 their own interests, 348 
 
 TRUSTEE IX BANKRUPTCY. See Bankruptcy.
 
 640 INDEX. 
 
 UNDER-LESSEE, not liable on covenants in original lease, 327 
 
 nor for costs of action against his lessor for tlieir 
 breach, 98, 327 
 of part of several premises, held under an entire rent, not 
 liable to contribute, 335 
 
 USE AND OCCUPATION, at common law, and by statute, 255 
 
 agreement maj^ be proved, though void under Statute of Frauds, 
 255 
 not conclusive where lessee has not enjoyed under it, 
 255 
 value of premises, how estimated, 256 
 when plaintiff can only recover in respect of a legal interest, 257. 
 
 See Rent. 
 liability of executors for, 526 
 See Rent. 
 
 VALUE, inferiority of, a ground for mitigation of damages, 114 
 measure of reduction, 115 
 
 not in actions for freight, or on an attorney's bill, 113 
 mode of estimating, in actions for not accepting goods, 170 
 or stock or shares, 176 
 for not delivering goods, 177 
 
 when paid for in advance, 185 — 189 
 fall in market value, 14 
 selling value a test of depreciation, 15 
 exception as to goods at sea, 16 
 for not replacing stock, 184 
 
 or shares, 185 
 for breach of covenant for title, 212 
 for use and occupation, 255, 256 
 for loss or injury to goods by carrier, or sale by him, 
 
 301—306 
 of subject-matter of Fire Insurance, 344, 347 
 
 of Marine Insurance. See Marine Insurance, 
 
 357—361 
 of general average. See Average, 372 
 in actions of trover or conversion. See Conversion 
 OF Goods, 379—393 
 trespass, 407, 412 
 excessive distress, 421 
 ot foreign currency, 242 
 statement of, in certain cases of shipments, 307 
 
 under the Carriers*Act, 309, 313 
 double, for holding lands after receiving notice to quit, 261 
 treble value of tithes, must be assessed by jury, 579 
 presumption as to, in case of fraud, 390 
 
 of distress and rent in arrear must be found by jury, 419, 420 
 of goods sued for in detinue must be found separately, 406, 568 
 
 YENDOR OF PROPERTY in possession, duty of to keep in repair, 267 
 
 "VENIRE DE NOVO, in cases in which a writ of inquiry could not issue, 575 
 
 VINDICTIVE DAMAGES. See Exemplary Damages ; Motive. 
 
 VOLENTI KON FIT INJURIA, 72
 
 INDEX. 641 
 
 WAGES. See Hiring, 223—232 
 
 WARRANTY, when articles purchased mth, may be returned, 191 
 damages, when article is returned, are its price, 191 
 
 when not returned are the difference between its value 
 sound and unsound, 191 
 
 not between contract and selling price, 191 
 
 effect of recovery for breach of warranty iu an action 
 for i^rice, 192 
 
 when expenses of keep recoverable, 193 
 
 special damages, 20, 193 
 
 expenses incurred in advancing value of article, 195 
 
 liability to compensate second vendee, 195 
 
 costs of action by second vendee, 97, 196 
 
 when warranty amounts to fraudulent misrepresenta- 
 tion, 196 
 
 fraudulent prospectus, 196 
 
 innocent misrepresentation, 196 
 
 See Covenant for Title, 208—219 
 
 WASTE See Covenant. 
 
 WATERCOURSE, action for injury to. See Easements, 443—445 
 
 WAY, actions for obstruction to right of. See Easejients, 443 — 445 
 
 WEALTH OF DEFENDANT is evidence in breach of promise of marriage, 
 482 
 qucere in case of adultery, 487 
 
 WIFE, set-off of debts to or from, in actions by or against husband, 124 
 
 WITHDRAWING RECORD, costs of, when the measure of damage for absence 
 
 of attorne)', 465 
 or witness, 466 
 
 WITNESS may be attached for non-attendance, 466 
 
 damage iu action against, when the costs of withdrawing the record, 
 466 
 or postponing the trial, 467 
 action against for penalty, 467 
 no action for defamation against, 467 
 
 WORK AND LABOUR, mode of suing for extras, when part done under a 
 written contract, 220 
 when plaintiff has deviated from original plan, with or without 
 consent, 220 
 cannot force defendant to return article, 221 
 where plaintiff employed to make experiments, 221 
 interest only recoverable by statute, 162 
 
 when payment of part may be claimed, before entire work done, 
 221 
 contract with attorney is an entire one, 221 
 
 unless after reasonable notice, or refusal to supply funds, 
 222 
 
 M.D. T T
 
 642 INDEX. 
 
 WORK AND LABOUR— contimced. 
 
 no action for, where plaintifi' lias failed to perform liis contract, 
 222 
 
 unless defendant has retained something under a 
 
 new contract, 222 
 or himself was the cause, 223. 
 
 inferiority may be given in evidence, 114, 
 222 
 reduction of damages when work done, or materials 
 
 su]iplied by employer, 115, 223 
 or where employer's goods injured, 115 
 regulations as to taxing attorney's bill, 223 
 
 may be set-off before a month after delivery, 121 
 negligence when an answer to action by at- 
 torney, 113 
 See Hiring, 223—232 
 of bankrupt, trustee cannot sue for, 536 
 
 unless a large sum gained by it, 536 
 
 or mixed with other debts lor which they can sue, 536 
 
 WRIT OF INQUIRY, when necessary, 561, 570 
 
 plaintiff must always recover nominal damages on, 562 
 no evidence necessary to prove right of action, 562 
 
 otherwise with a view to damages, when amount not admitted, 
 562 
 
 damages need not be nominal, though no evidence given, 
 564 
 cannot supply omission by principal jury to assess damages, when 
 they are the express matter in issue, 574 
 otherwise when thej' are only an accessory, 575 
 or in case of judgment by confession, or 7i&n obstante veredicto, 
 
 575 
 but now a new trial could be directed, 576, 581 
 
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 ADMINISTRATORS— 
 
 Walker 
 
 ADMIRALTY LAW— 
 
 Kay . 
 
 Sm-th 
 ARBITRATION 
 
 Slater 
 
 ARTIZANS AND LABOURERS' 
 DWELLINGS— Lloyd .... 
 
 BANKRUPTCY— ij /* UJ: 
 
 Baldwin 
 
 Hazlitt • 
 
 Indeimaur (Question & Answer) 
 Ring wood ^Sj 
 
 BAR EXAMINATION JOURNAL 
 
 BIBLIOGRAPHY 
 
 rioN-^ A j 
 . . . , » . s . • 
 
 \A O 
 
 13 
 
 15 
 
 29 
 28 
 29 
 
 39 
 40 
 
 9 
 
 17 
 
 jqau^ 
 
 BILLS OF LADING— 
 Campbell .... 
 Kay 
 
 BILLS OF SALE— 
 
 Baldwin ^5 
 
 Indermaur . 28 
 
 Ringwood IS 
 
 BUILDING LEASES AND CON- 
 TRACTS- ■joiiqqiia 3W, 
 
 Emden .....••>. 8 
 
 Hudson 12 
 
 CAPITAL PUNISHMENT— 
 
 Copinger 42 
 
 CARRIERS— L^'I^Aq r: Afci057' 
 .S;^ RAILWAY LAW. 
 ,, SHIPMASTERS. 
 
 CHANCERY DIVISION, Practice of— 
 Brown's Edition of Snell ... 22 
 
 Inderniaiu" 25 
 
 Williams 7 
 
 And sec EQUITY. 
 
 CHARITABLE TRUSTS— 
 
 Cooke 10 
 
 Whiteford 20 
 
 CHURCH AND CLERGY— 
 
 Brice 9 
 
 CIVIL LAW—Sce ROMAN LAW. 
 
 CLUB LAW— 
 
 Wertheimer 32 
 
 CODES— Arglcs 32 
 
 COLLISIONS AT SEA— Kay . . 17 
 
 COLONIAL LAW— 
 
 Cape Colony 38 
 
 Forsyth. . , 14 
 
 Tarring 41 
 
 COMMERCIAL AGENCY— 
 
 Campbell 9 
 
 COMMERCIAL LAW— 
 
 Hurst and Cecil ....•• ^^ j 
 COMMON LAW— I 
 
 Indermaur 24 j 
 
 COMPANIES LAW— ^ 
 
 Brice ^-^ { 
 
 Buckley ^7 i 
 
 . Reilly's Reports 29 
 
 Smith 39 
 
 Watts ..47 
 
 COMPENSATION— — ^ ^ ^••' 
 
 Browne ''^ 
 
 Lloyd 13 
 
 COMPULSORY PURCHASE— 
 
 Browne. ■. w' »j ^9 
 
 CONSTABLES— 
 
 SaVOLlCE GUIDE. 
 CONSTITUTIONAL LAW AND 
 HISTORY— 
 
 Forsyth M 
 
 Taswell-Langmead 21 
 
 Thomas 28 
 
 CONSULAR JURISDICTION— 
 
 Tarring . 42 
 
 CONVEYANCING— 
 
 Copinger, Title Deeds .... 45 
 Copinger, Precedents in ... 40 
 Dcane, Principles of . . . . . 23 
 COPYRIGHT— 
 
 Copinger .45 
 
 CORPORATIONS— 
 
 Brice ......... 16 
 
 Browne 19 
 
 COSTS, Crown Office- 
 Short 41 
 
 COVENANTS FOR TITLE— 
 
 Copinger 45 
 
 CREW OF A" SHIP— 
 
 Kay /*-,t-. • ■ '7 
 
 CRIMmAL LAW— Q gj j fj 
 
 Copinger 42 
 
 Harris . . .... * i^.- • v 27 
 
 CROWN LAW-^ Vi ^V:\t 's^^\^^ 
 
 Forsyth 14 
 
 Hall 30 
 
 Kelyng 35 
 
 Taswell-Langmead "i^ii^o^fiJ. . . 21 
 Thomas ........ 28 
 
 CROWN OFFICE RULES - 
 
 Short .10 
 
 CROWN PRACTICE— 
 
 Corner . . . . . _. . . . lo 
 
 Short and Mellor. ..... 10 
 
 CUSTOM AND USAGE— 
 
 Browne '9 
 
 Mavne ......... 3^ 
 
 DAMAGES— 
 
 Ma%Tie 3' 
 
 DICTIONARIES— 
 
 Brown 26
 
 Sl'EVENS &> HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF ^\}^^E.Q,T^-continued. 
 
 DIGESTS— PAGE 
 
 Law Magazine Quarterly Digest . 37 
 Menzies' Digest of Cape Reports. 38 
 
 DISCOVERY— Peile 7 
 
 DIVORCE— Harrison 23 
 
 DOMESTIC RELATIONS— 
 
 Eversley 9 
 
 DOMICIL— 5<,-£ PRIVATE INTER- 
 NATIONAL LAW. 
 
 DUTCH LAW 38 
 
 ECCLESIASTICAL LAW— 
 
 Brice 9 
 
 Smith 23 
 
 EDUCATION ACTS— 
 
 See MAGISTERIAL LAW. 
 
 ELECTION LAW and PETITIONS— 
 
 Hardcastie '^t, 
 
 O'Malley and Hardcastie ... 33 
 Seager 47 
 
 EQUITY— 
 
 Blyth 22 
 
 Choyce Cases 35 
 
 Pemberton 32 
 
 Snell 22 
 
 Story 43 
 
 Williams 7 
 
 EVIDENCE— ,x. ....... 
 
 Phip.son . . . I'J /«.-U . . 20 
 
 EXAMINATION OF STUDENTS— 
 Bar Examination Journal ... 39 
 
 Indermaur 24 and 25 
 
 Intermediate LL. B 21 
 
 EXECUTORS— 
 
 Walker and Elgood 6 
 
 EXIRADITIOX- 
 
 Clarke 45 
 
 Sec MAGISTERIAL LAW. 
 
 FACTORIES— 
 
 See MAGISTERIAL LAW. 
 
 FISHERIES— 
 
 See MAGISTERIAL LAW. 
 
 FIXTURES— Brown 33 
 
 FOREIGN LAW— 
 
 Argles 32 
 
 Dutch Law • 3^ 
 
 Foote 3*5 
 
 Pavitt 32 
 
 FORESHORE— 
 
 Moore 3° 
 
 FORGERY— &<: MAGISTERIAL LAW. 
 
 FRAUDULENT CONVEYANCES— 
 May - 29 
 
 GAIUS INSTITUTES— 
 
 Harris 20 
 
 GAME LAWS— 
 
 See MAGISTERIAL LAW. 
 
 GUARDIAN AND WARD— 
 
 Eversley 9 
 
 HACKNEY CARRIAGES— 
 See MAGISTERIAL LAW. 
 
 HINDU LAW— 
 
 Coghlan 28 
 
 Cunningham 38 and 42 
 
 Mayne 38 
 
 HISTORY— 
 
 Taswell-Langmead 21 
 
 HUSBAND AND WIFE— 
 
 Eversley g 
 
 INDEX TO PRECEDENTS— 
 
 Copinger 40 
 
 INFANTS— 
 
 Eversley 9 
 
 Simpson 43 
 
 INJUNCTIONS— 
 
 Joyce 44 
 
 INSTITUTE OF THE LAW— 
 
 Brown's Law Dictionary ... 26 
 
 INSURANCE— 
 
 Porter 6 
 
 INTERNATIONAL LAW— 
 
 Clarke 45 
 
 Cobbett 43 
 
 Foote 36 
 
 Law Magazine 37 
 
 INTERROGATORIES— 
 
 Peile 7 
 
 INTOXICATING LIQUORS— 
 See MAGISTERIAL LAW, 
 
 JOINT STOCK COMPANIES— 
 See COMPANIES. 
 
 JUDGMENTS AND ORDERS — 
 
 Pemberton ........ iS 
 
 JUDICATURE ACTS— 
 
 Cunningham and !Mattinson . . 7 
 
 Indermaur 25 
 
 Kelke 6 
 
 JURISPRUDENCE— 
 
 Forsyth 14 
 
 Salmond 13 
 
 JUSTINIAN'S INSTITUTES— 
 
 Campbell 47 
 
 Harris 20 
 
 LANDLORD AND TENANT- 
 
 Foa ir 
 
 LANDS CLAUSES CONSOLIDA- 
 TION ACT— 
 
 Lloyd 13 
 
 LAND, IMPROVEMENT OF, by 
 Buildings— 
 
 Emden ° 
 
 LATIN MAXIMS 28 
 
 LAW DICTIONARY— 
 
 Brown 20 
 
 LAW MAGAZINE and REVIEW. 37 
 
 LEADING CASES— 
 
 Common Law 25 
 
 Constitutional Law ..... 28 
 Equity and Conveyancing . . . 25 
 
 Hindu Law 28 
 
 Internationrd Law ...... 43
 
 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF SUBJECTS— ^''"'^««^'^- 
 
 PACE 
 
 LEADING STATUTES - 
 
 Thomas 28 
 
 LEASES— 
 
 Emden ^ 
 
 Copinger 45 
 
 LEGACY AND SUCCESSION— 
 
 Hanson • .10 
 
 LEGITIMACY AND MARRIAGE— 
 ^c<r' PTIIVATE INTERNA- 
 TIONAL LA^V. 
 LICENSES— ^^£ MAGISTERIAL LAW. 
 LIFE ASSURANCE— 
 
 Buckley .17 
 
 Reilly 29 
 
 LIMITATION OF ACTIONS— 
 
 Banning 42 
 
 LUNACY— 
 
 \Villiams 7 
 
 MAGISTERIAL LAW— 
 
 Greenwood and Martin .... 46 
 MAINTENANCE AND DESERTION. 
 
 Martin 7 
 
 MARRIAGE and LEGITIMACY— 
 
 Foote 36 
 
 MARRIED WOMEN'S PRO- 
 PERTY ACTS— 
 
 Brown's Edition of Griffith . . 40 
 MASTER AND SERVANT— 
 
 Eversley 9 
 
 See MAGISTERIAL LAW. 
 „ SHIPMASTERS & SEAMEN. 
 
 MERCANTILE LAW 32 
 
 Campbell 9 
 
 Dimcan • • • • 33 
 
 Hurst and Cecil il 
 
 Slater 7 
 
 See SHIPMASTERS. 
 „ STOPPAGE IN TRANSITU. 
 MERCHANDISE MARKS— 
 
 Daniel .42 
 
 MINES— 
 
 Harris . , . 47 
 
 See MAGISTERIAL LAW. 
 MORTMAIN— 
 
 Su CHARITABLE TRUSTS. 
 NATIONALITY— 6-£:<^ PRIVATE IN- 
 TERNATIONAL LAW. 
 NEGLIGENCE— 
 
 Beven .14 
 
 Campbell 40 
 
 NEWSPAPER LIBEL— 
 
 Elliott 14 
 
 OBLIGATIONS— 
 
 Brown's Savigny ...... 20 
 
 PARENT AND CHILD— 
 
 Eversley ....,.,. g 
 
 PARLIAMENT— 
 
 Taswell-Lan^mead 21 
 
 Thomas ........ 28 
 
 PAGE 
 
 PARTITION— 
 
 Walker 43 
 
 PASSENGERS— 
 
 See MAGISTERIAL LAW. 
 „ RAILWAY LAW. 
 PASSENGERS AT SEA— 
 
 Kay .......... 17 
 
 PATENTS—' 
 
 Daniel 42 
 
 Frost 12 
 
 PAWNBROKERS— 
 
 3-.'t MAGISTERIAL LAW. 
 PETITIONS IN CHANCERY AND 
 LUNACY— 
 
 Williams 7 
 
 PILOTS— 
 
 Kay . 17 
 
 POLICE GUIDE— 
 
 Greenwood and Martin .... 46 
 POLLUTION OF RIVERS - 
 
 Higgins ......... 30 
 
 PRACTICE BOOKS— 
 
 Bankruptcy . . . . . . • 15 
 
 Companies Law- . . . .29 and 39 
 
 Compensation 13 
 
 Compulsory Purchase . . . . 19 
 
 Conveyancing . . . . . . 45 
 
 Damages 3^ 
 
 Ecclesiastical Law 9 
 
 Election Petitions 33 
 
 Equity 7-22 and 32 
 
 Injunctions 44 
 
 Magisterial 46 
 
 Pleading, Precedents of . . . 7 
 
 Railways 14 
 
 Railway Commission .... 19 
 
 Rating 19 
 
 Supreme Court of Judicature . . 25 
 
 PRACTICE STATUTES, ORDERS 
 AND RULES— 
 
 Emden H; 
 
 PRECEDENTS OF PLEADING - 
 
 Cunningham and Mattinson . . 7 
 
 Mattinson and Macaskie ... 7 
 
 PRIMOGENITURE— 
 
 Lloyd 13 
 
 PRINCIPLES— 
 
 Brice (Corporations) 16 
 
 Browne (Rating^) '9 
 
 Deane (Conveyancing) .... 23 
 
 Harris (Criminal Law) .... 27 
 
 Houston (Mercantile) .... 32 
 
 Indermaur (Common Law) . 24 
 
 Jo)'ce (Injunctions) 44 
 
 Ringwood (Bankruptcy) . . . 15 
 
 Snell (Equity) 22 
 
 PRIVATE INTERNATIONAL LAW— 
 
 Foote ^6
 
 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF '^\}^^E.Q,T^-continued. 
 
 PAGE 
 
 PROBATE— 
 
 Hanson lo 
 
 Harrison 23 
 
 PROMOTERS— 
 
 Watts 47 
 
 PUBLIC WORSHIP- 
 
 Brice 9 
 
 QUARTER SESSIONS— 
 
 Smith (,F. J.) 6 
 
 QUEEN'S BENCH DIVISION, Practice 
 of— 
 
 Indermaur 25 
 
 QUESTIONS FOR STUDENTS— 
 
 Aldred . 21 
 
 Bar Examination Journal ... 39 i 
 
 Indermaur 25 
 
 Waite 22 i 
 
 RAILWAYS— 
 
 Browne 19 
 
 Godefroi and Shortt 47 
 
 Sei MAGISTERIAL LAW. ; 
 
 RATING— j 
 
 Browne 19 
 
 REAL PROPERTY— 
 
 Deane 23 
 
 Edwards 16 
 
 Tarring 26 
 
 REGISTRATION— j 
 
 Elliott (Newsjiaper) . . . . 14 1 
 
 Seager (Parliamentary) .... 47 ' 
 
 REPORTS— j 
 
 Bellewe 34 
 
 Brooke ' 35 ' 
 
 Choyce Cases 35 | 
 
 Cooke 35 j 
 
 Cunningham 34 i 
 
 Election Petitions • .... 33 i 
 
 Finlason . 32 
 
 Gibbs, Seymour Will Case . . 10 I 
 
 Kelyng, John . ...»,,. . 35 | 
 
 Kelynge, William ,;'"''.'''.'. . 35 ; 
 
 Reilly . . . . , i . . , 29 | 
 
 Shower (Cases in Parliament) . 34 ', 
 
 ROMAN DUTCH LAW— 1 
 
 Van Leeuwen 38 1 
 
 ROMAN LAW— I 
 
 ; Brown's Analysis of Savigny , . 20 
 
 I. Campbell 47 | 
 
 Harris . 20 } 
 
 Salkowbki I4 | 
 
 Whitfield 14 
 
 SALVAGE— 
 
 Jones 47 j 
 
 Kay . 17 ' 
 
 SANITARY ACTS— i 
 Set MAGISTERIAL LAW. 
 
 SAVINGS BANKS— I 
 
 Forbes 18 j 
 
 SCINTILLAE JURIS— 
 
 Darling (C. J.) 18 I 
 
 SEA SHORE— 
 
 Hall. . . . , 
 
 Moore .... 
 SHIPMASTERS AND SEAMEN— 
 
 Kay 
 
 SOCIETIES— 
 
 See CORPORATIONS. 
 STAGE CARRIAGES— 
 
 See jMAGISTERIAL LAW. 
 STAMP DUTIES— 
 
 Copinger 40 and 
 
 STATUTE OF LIMITATIONS— 
 
 Banning 
 
 STATUTES— 
 
 Craies 
 
 Hardcastle , . 
 
 Marcy 
 
 Thomas 
 
 STOPPAGE IN TRANSITU— 
 
 Campbell 
 
 Houston 
 
 Kay , 
 
 STUDENTS' BOOKS . 20—28, 39, 
 SUCCESSION DUTIES— 
 
 Hanson . . . . . . ., 
 
 SUCCESSION LAWS- 
 
 Lloyd 
 
 SUPREME COURT OF JUDICA- 
 TURE, Practice of— 
 
 Cunningham and Mattinsoit , . 
 
 Indermaur 
 
 TELEGRAPHS— 
 
 See MAGISTERIAL LAW. 
 TITLE DEEDS— 
 
 Copinger 
 
 TORTS— 
 
 Ringwood 
 
 TOWNS IMPROVEMENTS— 
 
 See MAGISTERIAL LAW. 
 TRADE MARKS— 'J, '" -"^ 
 
 Daniel .... '. . . . . 
 TREASON— 
 
 Kelyng . . . . . . . , . 
 
 Taswell-Langmead . , . . , 
 TRIALS— Bartlett, A. (Murder) . . 
 
 Queen v. Gurney 
 
 ULTRA VIRES— 
 
 Brice . 
 
 USAGES AND CUSTOMS— 
 
 Browne 
 
 Mayne 
 
 VOLUNTARY CONVEYANCES— 
 
 May 
 
 WATER COURSES— 
 
 Higgins. ........ 
 
 WILLS, CONSTRUCTION OF— 
 
 Gibbs, Report of Wallace v. 
 Attorney-General .... 
 
 A(.K 
 
 30 
 17 
 
 7 
 25 
 
 35 
 21 
 
 32 
 32 
 
 16 
 
 19 
 
 38 
 
 29 
 30
 
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 index deserves a special word of commendation." — Law Quarterly Rerieii). 
 
 " We can, therefore, repeat what we said when reviewing the first edition— that the book is a contribu- 
 tion of value to the subject treated of, and that the writer deals with his subject carefully and fully." — 
 Lalu your/ml. 
 
 Second Edition, in one volume, 8vo, price 2Ss., cloth, 
 A TREATISE ON 
 
 THE CONSTRUCTION AND EFFECT OF 
 STATUTE LAW. 
 
 with appendices containing words and expressions used in st.\tutes 
 
 which h.\ve been judicially or st.\tutably construed, and 
 
 the popular and short titles of cerjain statutes. 
 
 By henry HARDCASTLE, barrister-.\t-l.\w. 
 
 SECOND EDITION, REVISED AND ENLARGED, by W. F. CRAIFS, 
 
 BARRISTER-AT-LAW. 
 
 " The result of Mr. Craies' industry is a sound and good piece of work, the new light thrown 
 on the subject since 1879 having been blended with the old in a thoroughly workmanlike 
 manner. Though less a student's manual than a practitioners te.xt book, it is the sort of 
 volume an intelligent perusal of which would educate a student better than the reading of 
 nmch substantial law." — Saturday Revieio. 
 
 In one volume, 8vo, price 28^., cloth, 
 
 THE LAW RELATING TO PUBLIC WORSHIP ; 
 
 With special reference to Matters of Ritual and Ornamentation, 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 Injunc- 
 tions, Advertisements, and other Original Documents of Legal Authority. By 
 .Sewaru Brice, LL.D., of the Inner Temple, Barrister-at-Law.
 
 10 STEVENS d- HAYNES, BELL YARD, TEMPLE BAK. 
 
 In 8vo, price 30^-., cloth, 
 
 THE PRACTICE ON THE CROWN SIDE 
 
 Of the fiiieen's Bench Division of Her Majesty's High Court of Justice 
 
 (Founded on Corner's Crown Office Practice), including 
 Appeals from Inferior Courts; with Appendices of Rules and Forms. 
 By FREDERICK HUGH SHORT, 
 
 Chief Clerk of the Crown Office, Author of "Taxation of Costs in the Crown Office," and Editor 
 of " Crown Office Rules and Forms, 18S6 ;" and 
 
 FRANCIS HAMILTON MELLOR, M.A., 
 Trin. Coll. Camb., Northern Circuit, Inner Temple, Barrister-at-Law. 
 
 In 8vo, price \2s., cloth, 
 
 THE CROWN OFFICE RULES AND FORMS, 1886. 
 
 The Supreme Court of Judicature Acts and Rules of the Supreme Court 1883, relaling to 
 the Practice on tiie Crown side of the Queen's Bench Division ; including Appeals 
 from Inferior Courts, Tables of Court Fees, Scales of Costs ; t(jgether with Notes, 
 Cases, end a Full Index. By F. H. SHORT, Chief Clerk of the Crown OfEce. 
 
 1 1/ '^ In 8vo, price ds. 6d., cloth, T U ji J A<^ 
 
 THE CUSTOMS AND INLAND REVENUE ACTS, 
 
 1880 and 1881 (43 Vict. Cap. 14, and 44 Vict. Cap. 12), 
 So far as they Relate to the Probate, Legacy, and Succession Duties, and the Duties on 
 Accounts. With an Introduction and Notes. By Alfred Hanson, Esq., Comp- 
 troller of Legacy and Succession Duties. 
 
 *«• This forms a Supplement to the Third Edition of the Probate, Legacy, and Succession Duty 
 Acts by the same Author. 
 
 Third Edition, in 8vo, 1876, price 255., cloth, 
 
 THE ACTS RELATING TO PROBATE, LEGACY, AND 
 
 SUCCESSION DUTIES. Comprising the 36 Geo. III. c. 52 ; 45 Geo. III. 
 c. 28; 55 Geo. III. c. 184; and 16 <& 17 Vict. c. 51 ; with an Introduction, 
 Copious Notes, and References to all the Decided Cases in 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. 
 
 '• It is the only complete book upon a subject of 
 great importance. 
 
 '_Mr. Hanson is peculiarly qualified to be the 
 adviser at such a time. Hence a volume without 
 a rival." — La7v Times. 
 
 " 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." — Soiicitors' yoiimal. 
 
 In royal 8vo, 1 877, price \os., cloth, 
 LES HOSPICES DE PARIS ET DE LONDRES. 
 
 THE CASE OF LORD HENRY SEYMOUR'S WILL 
 
 (WALLACE V. THE ATTORNEY-GENERAL). 
 
 Reported by FREDERICK WAVMOUTH GIBBS, C.B., Barrister at-Law, 
 
 LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE. 
 
 In 8vo, 1867, price i6j-., cloth, 
 
 CHARITABLE TRUSTS ACTS, 1853, 1855, 1860; 
 
 THE CHARITY COMMISSIONERS' JURISDICTION ACT, 1862; 
 THE ROMAN CATHOLIC CHARITIES 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- 
 r.ations of Trust, Conditions of Sale, and Conveyance of Charity Land, and a 
 very copious Index. Second Edition. 
 By HUGH COOKE and R. G. IIARWOOD, of the Charity Commission.
 
 STEVENS d- HAYNES, BELL YARD, TEMPLE BAR, U 
 
 In one Volume, 8vo, price 20,c. , cloth, 
 THE 
 
 PRINCIPLES OF COMMERCIAL LAW; 
 
 WITH AN APPENDIX OF STATUTES, ANNOTATED BY MEANS OF 
 REFERENCES TO THE TEXT. 
 
 By JOSEPH HURST and LORD ROBERT CECIL, 
 
 OF THE INNER TE.MPi.E, BAKRISTERS-AT-LAW. 
 
 "Their compendiuni, we believe, will be found a really useful volume, one for the lawyer and the 
 business man to keep at his elbow, and which. If not giving them all that they require, v;ill place in their 
 hands the key to the richer aud more elaborate treasures of the Law which lie in larger and more exhaus- 
 tive v\orks." — Laio Times. 
 
 "The object of the authors of this work, they tell us in their preface, is to state, within a moderate 
 compass, the principles of commercial law. Very considerable pains have obviously been expended on the 
 task, and (he book is in many respects a very serviceable one." — Laiv JcurTtal. 
 
 In one Volume, 8vo, price 20s. cloth, 
 THE 
 
 RELATIONSHIP OF LANDLORD AND TENANT. 
 
 By EDGAR FOA, 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 "Will be found of much value to practitioners, and when a second edition has given the author the 
 opportunity of reconsidering and carefully revising his statements in detail, we think it will take its place 
 as a very good treatise oh the modern law of landlord and tenant.''^ So/icitors' "Joitrtiat. " 
 
 " Mr. Foa is a bold man to undertake the exposition of a branch of law so full of difficulties and encum- 
 bered by so many decisions as the Law of Landlord and Tenant. Cut his boldness is justified by the 
 excellent arrangement and by the lucid statements which f:\\zxs.QXe.riS,^\\\%hoo\i." ^Lotm Quarterly Revic^v. 
 
 "Mr. Foa's is a compact work, treating (i) of the creation of the relationship; (2) the incidents of 
 creation (distress) and determination of the relationship ; (3) modes and incidents of determination. We 
 commend it to the attention of the Pro''ession, and predict for Foa on Landlord and Tenant a very useful 
 and very permanent future." — Law Times. ' 
 
 "We have nothing but praise for the work, and we shall be astonished if it does not take rank in 
 course of time as one of the best— if not the best — work for everj'-day practice on the subject of Landlord 
 and Tenant." — Laio Notes. 
 
 " Without making any invidious comparison with existing works on the subject, we may frankly say 
 that Mr. Foa's work indisputably possesses merit. . . . Our verdict on the book must be a decidedly 
 favourable one." — Law Students' Journal. 
 
 " ' The Relationship of Landlord and Tenant," written by Mr. Edgar Foa, Barrister-at-L.aw, affords a 
 striking instance of accuracy and lucidity of statement. The volume should be found useful not only by 
 lawyers but by l.-mdlords and tenants themselves, the law in each particular being stated with a simplicity 
 and clearness which bring it within the grasp of the lay mind." — Laiv Gazette. 
 
 Second Edition, in one Volume, medium 8vo, price 355. , cloth, 
 
 EMDEN'S COMPLETE COLLECTION 
 
 OF 
 
 PRACTICE STATUTES, 
 
 ORDERS AND RULES. 
 
 Being a Selection of such Practical Parts of all Statutes, Orders and Rules, as are now 
 in force, and relate to the Practice and Procedure of the Supreme Court. From 
 1275 to 1886. With Tabulated Summaries of the Leading Cases and Analytical 
 Cross-references. 
 
 By ALFRED EMDEN 
 
 OF THE INNER TEMPLE, ESQ., BARRISTER-AT-LAW ; AUTHOR OF " THE PRACTICE IN WINDING-Ur 
 companies;" "the law relating to building, building LEASES, AND CONTR.\CTS;" 
 
 "the shareholder's legal guide," etc 
 .ASSISTED BY 
 
 HERBERT THOMPSON, M.A., 
 
 OF THE I.VNER TEMl'I.E, liARRISTER-AT-LAW.
 
 12 STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Just published, in royal 8vo, cloth, 28^., 
 
 A TREATISE ON THE 
 
 LAW AND PRACTICE 
 LETTERS PATENT FOR INVENTIONS. 
 
 WITH AN 
 
 APPENDIX OF STATUTES, INTERNATIONAL CONVENTION, 
 
 RULES, FORMS AND PRECEDENTS, ORDERS, &:c. 
 
 By ROBERT FROST, B.Sc. (Lond,), 
 
 FELLOW OF THE CHEMICAL SOCIETY; OF LINCOLN'S INN, ESQUIRE, BARRISTER-AT-LA\V. 
 
 " In our view a i;ood piece of work may create a demand, and without disparaging existing literature 
 upon the subject of patents, we think the care and skill with which the volume by Mr. Frost has been 
 compiled, entitles it to recognition at the hands of the profession. . . . Judging Mr. Frost on this 
 ground, we find him completely satisfactory. A careful examination of the entire volume satisfies us that 
 great care and much labour have been devoted to the production of this treatise, and we think that patent 
 agents, solicitors, the bar and the bench, may confidently turn for guidance and instruction to the pages 
 of Mr. Frost."— Arfic Titiies. , •,• , r 
 
 " Few practice books contain so much in so reasonable a space, and we repeat that it will be found 
 generally useful by practitioners in this important branch of the law. ... A capital index concludes 
 the book." — La7u Journat. 
 
 " The book is, as it professes to be, a treatise on patent law and practice, the several topics being con- 
 veniently arranged and discussed in the thirteen chapters which form the body of the work, to which 
 are appended st.ntutes, rules, and forms. The statements of the law, so far as we have been able to test 
 them, appear to be clear and accurate, and the author's style is pleasant and good. . . . The book is 
 a good one, and will make its way. The index is better than usual. Hoth paper and type are al:.o 
 excellent." — Solicitors yoitmnl. 
 
 In royal 8vo, price 35.i-. , in cloth, 
 
 A PRACTICAL TREATISE ON THE 
 
 LAW OF BUILDING AND 
 ENGINEERING CONTRACTS, 
 
 And of the DUTIES and LIABILITIES of ENGINEERS, ARCHITECTS, 
 
 SURVEYORS AND VALUERS, 
 
 WITH AN APPENDIX OF PRECEDENTS, 
 
 ANNOT.VrED BY MEANS OF REFERENCE TO THE TEXT AND TO CONTRACTS 
 
 IN USE. 
 
 AND AN APPENDIX OF UNREPORTED CASES 
 
 ON BUILDING AND ENGINEERING CONTRACTS. 
 By ALFRED A. HUDSON, 
 
 OF THE INNER TEMPLE, BARRISTER- .\T-LAW. '- 
 
 A very full index ccn-pletes the book. Mr. Hudson has struck out a new line for himself, and pro- 
 duced a work of considerable merit; and one which will probably be found indi.spensable by practitioners, 
 inasmuch as it contains a great deal that is not to 'oe found elsewhere. The Table of Cases refers to all 
 the reports." — Lmu yoiirval. 
 
 " Mr. Hudson, having abandoned his profession of an architect to become a barrister, hit upon the idea 
 of writing this work, and he has done it with a thoroughness which every houseowner would like to fee 
 
 bestowed upon modern houses The Index and Table of Cases reveal a vast amount of industry 
 
 expended upon detail, and we shall be much surprised if Mr. Hudson does not reap the reward of his 
 labours by obtaining a large and appreciative public."— Z<r7y Times. 
 
 "'Ihe author of this somewhat bulky volume has, within the compass of some goo pages, dealt in a 
 practical and exhaustive manner with the Law of Building and Engineering Contacts. ... An Index o< 
 I recedents and a good General Index will be found at the end of the work.' —So/ici tors' Journal. 
 
 A \ ■ -I 1 ^. ^"^?'*^'^ J?"? '° produce a work which, regarded both from the lawvei's and from the architect's 
 and builders point of view, must be pronounced excellent. It is ;;ood from" the lawyer's >tandpoint as 
 being logical in arrangement, clear in statement, and generally accurate in the law laid down. 1 he archi- 
 tect or engineer wil also give It praise for answering the questions precisely which arise in his dealings 
 with his employers. —Scotsman.
 
 ST£f'-£JVS &- HAYNES, BELL YARD, TEMPLE BAR. 13 
 
 Second Edition. In 8vo, price lo^. dd., cloth, 
 
 OUTLINES OF THE LAW OF TORTS. 
 
 By RICHARD RINGWOOD, M.A., 
 
 OF THE .MIDDLE TEMl'LK, HAKKISTEK-AT-LAW ; AUTHOR OF "rRINCIPLES Of BANKHUl'TCV," &C., 
 AND LECTURER ON COMMON LAW TO THE INCORl'ORATED LAW SOCIETY. 
 
 " This is a work by the well-known author of a student's book on Bankruptcy. Its groundwork is a 
 series of lectures delivered in 1S87 by Mr. Kingwood, as lecturer appointed by the Incorporated Law 
 Society. It is clear, concise, well and intelligently written and one rises from its perusal with feelings of 
 pleasure. . . . After perusing the entire work, we can conscientiously recommend it to students." — 
 Latv StJtcients' Journal. 
 
 " The work is one we well recommend to law students, and the able way in which it is written reflects 
 much credit upon the author." — Laiv Times. 
 
 " Mr. Ringwood's lx)ok is a plain and straightforward introduction to this branch of the law." — La7u 
 Journal. 
 
 ■ '■ ' ' ■'■ """ Sixth Edition, in 8vo, in preparation. 
 
 THE LAW OF COMPENSATION FOR LANDS, HOUSES, &c. 
 
 UNDER THE LANDS CLAUSES, RAILWAY CLAUSES CONSOLIDATION AND 
 
 METROPOLITAN ACTS, 
 
 THE ARTIZANS AND LABOURERS' DWELLINGS IMPROVEMENT ACT, 1875, 
 
 WITH A FULL COLLECTION OF FORMS AND PRECEDENTS. 
 By eyre LLOYD, 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LA\T. 
 
 SIXTH EDITION. 
 By W. J. BROOKS, 
 
 OF THE INNER TEMPLE, BARRISTF.K-AT-LAW. 
 
 " In prm'iding the le^al f>ri>/essiiyn with a Iwok lohich contains the decisions oj the Courts 0/ Laiu ana 
 Equity upon the -.•arious statutes relating to the Law of Compensation, Mr. Eyre Lloyd has long since 
 left all competitors in the distance, and his book may no7V be considered the standard work upon the sub- 
 ject. TIte plan of Mr. Lloyds book is generally kncnon, and its lucidity is appreciated; the present quite 
 fuljfih all tlic promises of tite preceding editions, and contains in addition to other matter a complete set 
 of forms under tlie Artizans and Labourers Act, liys. and specimens of Bills of Costs, which will be found 
 a ncn'cl feature, extremely useful to legal practitioners."— ]vsT\c^ OF the Peace. 
 
 In 8vo, price 7^., 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., Barrister-at-Law. 
 
 In crown 8vo, price 6s. , cloth, 
 
 ESSAYS IN JURISPRUDENCE AND LEGAL HISTORY. 
 
 By JOHN W. SALMOND, M.A., LL.B. (Lond.), 
 
 A HaRRISTER of the SUl-REME COURT OK NEW ZF.ALAND. 
 
 In crown 8vo, price 65., cloth. : ;/ r <!/ 
 
 THE FIRST PRINCIPLES OF JURISPRUDENCE. 
 
 By JOHN W. SALMOND, M.A., LL.B., 
 
 BARRISTER-AT-LAW ; AUTHOR OF "ESSAYS IN JURISPRUDENCE AND LEGAL HISTORY.
 
 14 STEVENS cr- HAYNES, BELL YARD, TEMPLE BAR. 
 
 In one volume, royal 8vo, price 42^:., cloth, 
 
 PRINCIPLES OF THE LAW OF NEGLIGENCE. 
 
 By THOMAS BEVEN, 
 
 OF THE INNER TC^IPI.E, BARRISTER-AT-LA\V ; AUTHOR OF "THE LAW OF EMPLO>ER's LIABILITY 
 FOR THE NEGLIGENCE OF SERVANTS CAUSING INJURY TO FELLOW SERVANTS." 
 
 ' He has treated the well-known subject of Negligence in a scientific way, and has not been content with 
 nierely collecting, in more or less relevant positions, a number of cases which anyone could find for himself 
 in any Digest of Law Keports, but has endeavoured to reduce from the chaos of decided cases a systematic 
 study of the subject, with clear enunciations of the principles he finds governing the various decisions. In 
 the arrangement of the book the author has been very happy in his method, a by no means easy task in the 
 treatment of a subject in which each branch of it in reality overlaps another. ... A good index and 
 clear type increase the value of a book which will without doubt receive the hearty commendation of the 
 profession as a successful completion of the author's ambitious task." — Laiu Times. 
 
 " The reader who takes these as samples of the work, will find hew careful and exhaustive Mr. Beven has 
 been, and how valuable a contribution he has made to the important branch of the law with which he has 
 undertaken to ^^aXr - Solicitor s yoiirnai. 
 
 " In respect of the style of treatment of the subject, the Iiook must be highly commended. It « ill be of 
 service to every lawyer who wishes rather to get an intelligent understanding of the Law of Negligence, 
 than merely to find correct and reliable legal propositions for practical use and that whether he be a student 
 or a practitioner. To the student the work is valuable for the searching and well-sustained discussion of the 
 cases ; and to the practitioner there are presented all the cases that bear on most points for which he may 
 be in .search of authority. One of the chief merits of the work i.s, that all the available authority on each 
 point is collected and so arranged that it can be easily {q,\xw6.."— Juridical Rei'iciu. 
 
 • " 9°"''^'"^^ evidence of much serious work, and ought to receive a fair trial at the hands of the profes- 
 sion." — Law Quarterly Rcviai.'. 
 
 ' This is the most elaborate work on the Law of Negligence which has yet appeared in England. . . . 
 His treatment is original, and has evidently not been adopted without great research, care, and revision." 
 — Law Jountal. 
 
 In one large vol., 8vo, price 32.C, cloth, 
 
 INSTITUTES AND HISTORY OF ROMAN PRIVATE LAW, 
 
 WITH CATENA OF TEXTS. 
 
 Bv Dr. carl SALKOWSKI, Professor of Laws, Konigsberg. 
 
 Translated and Edited by E. E, Whitfield, M.A. (0.xon.). 
 
 - In :Svo, price 4J. 6j'., cloth, " 
 
 THE 
 
 NEWSPAPER LIBEL AND REGISTRATION ACT, I88L 
 
 With a statement of the Law of Libel as afilecting Proprietors, Publishers, and Editors of 
 Newspapers. By G. Elliott, Barrister-at-Law, of the Inner Temple, 
 
 ; .- . [.'i::.\"\-i- --/J ■■,:, J -jr. rr 
 
 In one volume, royal Svo, price 36/.,' c16^^ ?' ^ ^ ' / f ■\ 
 
 CASES AND OPINIONS ON CONSTITUTIONAL LAW, 
 
 AND VARIOUS POINTS OF ENGLISH JURISPRUDENCE. 
 
 Collected and Digested from Official Documents and otheir Sources; with Notes. By 
 William Forsyth, ISt.A., M^P., Q.C., Standing CounseV to' the Secretary of 
 State in Council cf India, Author of " Hortensius," "History of Trial by Jury, 
 "Life of Cicero," etc., late Fellow of Trinity College, Cambridge.
 
 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 15 
 
 Fifth Edition, in 8vo, price ioj. bd., cloth, 
 
 THE PRINCIPLES OF BANKRUPTCY. 
 
 WITH AN APPENDIX, 
 
 CONTAINING 
 
 THE CONSOLIDATED RULES OF 1886 k 1890, SCALE OF COSTS, 
 1886, AND THE BILLS OF SALE ACTS, 1878, 1882 k 1890, 
 
 Etc., Etc. 
 
 By RICHARD RINGWOOD, M.A., 
 
 OF THE MIDDLE TEMPLE, BARRISTER- AT-LA\V ; LATE SCHOLAR OK TRINITY COLLEGE, DUBLIN. 
 
 "This edition is a considerable improvement on the first, and although chlsSy written for the use of 
 Students, the work will be found useful to the practitioner. "^Xrtzt/ Times. 
 
 " Those who have to deal with the subject in any of its practical legal aspects will do well to consult 
 Mr. Ringwood's unpretending but useful volume." — Law Magazine. 
 
 " His book does not profess to be an exhaustive treatise on bankruptcy law, yet in a neat and compact 
 volume we have a vast amount of v/ell-digested matter. The reader is not distracted and puzzled by having 
 a long list of cases flung at him at the end of each page, as the general eftect of the law is stated in a few 
 well-selected sentences, and a reference given to the leading decisions only on the subject. . . An 
 
 excellent index, and a table of cases where references to four sets of contemporary reports may be seen at 
 a glance, show the industry and care with which the work has been done." — Daily Paper. 
 
 Si.\th Edition, 1890, in royal i2mo, price 20J., cloth. 
 With Supplement, 1 89 1, containing the Act and Rules, 1890, 
 
 A TREATISE UPON 
 
 THE LAW OF BANKRUPTCY 
 
 AND 
 
 LLS OF SALE. 
 
 WITH AN APPENDIX 
 
 containing 
 
 THE BANKRUPTCY ACT, 1883; GENERAL RULES AND FORM.S 
 
 OF 1886; SCALE OF COSTS -AND FEES OF 1886; 
 
 RULES UNDER S. 122 OF 1888 ; BANKRUPTCY (COUNTY COURT 
 
 APPEALS) ACT, 1884; BANKRUPTCY DISCHARGE ACT, 1887; 
 
 RULES- AND FORMS; BANKRUPTCY (PREFERENTIAL 
 
 PAYMENTS) ACT, 1888; DEEDS OF ARRANGEMENT ACT, 1887; 
 
 RULES AND FORMS; BOARD OF TRADE AND COURT 
 
 ORDERS; DEBTORS ACTS, 1869, 1878, and RULES, 1889; 
 
 BILLS OF SALE ACTS, 1878, 1882, and RULES, 18S3. 
 
 By EDWARD T. BALDWIN, M.A., 
 
 OF THE INNER TEiMPLE, BARRISTER-AT-LAW. 
 
 *^* The Supplement may be had separately, price y. cloth. 
 
 " His new edition is in every respect satisfactory."— Zrtic T'/wf.r. .. u 1, 
 
 " It is a thoroughly good and reliable work. ... We think— as practitioners— that we would rather 
 have this book than any other on the same subject in our library. '—XaK' Students Journal. 
 
 " Mr. Baldwin's book has a well-earned reputation for conciseness, clearness, and accuracy. . . . . As 
 a.terse and readable treatise on Bankruptcy law hLs work may be commended to our readers. ... 1 here 
 is a good index." — Solicitors' Journal. . .. , 
 
 "The present edition appears to be quite equal in e.vcellence to its predecessors, and for pr-ictitioner s 
 purposes the book is all that can be desired." — Lait' Notes.
 
 16 STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Second Edition, in one vol., price 20j-., cloth, 
 
 A COMPENDIUM OF THE LAW OF 
 PROPERTY IN LAND. 
 
 FOR THE USE OF STUDENTS AND THE PROFESSION. 
 
 SECOND EDITION. 
 
 By WILLIAM DOUGLAS EDWARDS, LL.B., 
 
 OF linxoln's inn, EARR1STER-AT-LA\V. 
 
 "We consider it one of the best works published on Real Property I,aw."— Z^a' Stitdotts Journal. 
 
 " Another excellent compendium which has entered a second edition is Mr. Edwards' ' Compendium of 
 the Law of Property in Land." No work on English law is written more perspicuously. . . . Mr. 
 Edwards has manifestly bestowed the utmost care in putting intoUie most modern dress a treatise which 
 we think will continue to grow in the estimation of the profession." — Law I'iiiies. 
 
 "We formed a very favourable opinion of the first edition of this little book, and our opinion is con- 
 firmed by the perusal of the second edition. The author has the merit of being a sound lawyer, a merit 
 perhaps not always possessed by the authors of legal text books for H\xieMs."— Law Quarterly Kcfieu:^ 
 
 "The book is certainly destined to take a high place as a standard work on the Law of Property in 
 Land. The style is good, the conclusions of law are accurate, and the authorities are well selected. • • ; • 
 
 The amount of detail is much greater than in Williams As a companion volume to it, we can with 
 
 great confidence recommend it to the student ; and the practitioner will find it a very useful epitome of 
 the modern law. Altogether it is a work for which we are indebted to the author, and ls worthy of the 
 improved notions of law which the study of jurisprudence is bringing to the fronU" —Solicitors Journal. 
 
 "This book shows signs of thorough work throughout The book is a business-like and useful 
 
 performance." — Lazu Joutnal. 
 
 Third Edition, royal 8vo, price 38.?., cloth. 
 
 THE ^ 
 
 LAW OF CORPORATIONS AND COMPANIES. 
 
 A TREATISE ON THE DOCTRINE OF 
 
 ULTRA/^VIRES: 
 
 BEING 
 
 An Investigation of the Principles which Limit the Capacities, Powers, and Liabilities of 
 CORPORATIONS, 
 
 AND MORE ESPECIALLY OF 
 
 JOINT STOCK COMPANIES. 
 By SEWARD BRICE, M.A., LL.D., London, 
 
 OK THE INNER TEMPLE, ONE OF HER MAJESTY'S COUNSEL. 
 
 THIRD EDITION. 
 
 REVISED THROUGHOUT AND ENLARGED, AND CONTAINING THE 
 UNITED STATES AND COLONIAL DECISIONS. 
 
 KEVIEWS. 
 ". . . . On the whole, ive consider Mr. S rice's exhaustiz'e work a valuable addition to the literature o/ 
 the p}o/eision."—S\TVRDAY Review. 
 
 _ ' It is the Law of Corporations that Mr. Brice treats of (and treats of more fully, and at the Bartie 
 time more scientifically, 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 Journai. 
 
 "On this doctrine, first introduced in the Common Law Courts in East Anglian Railway Co. T. 
 Eastern Counties Railway Co., Brice on Ultra Vires may be read with advantage."— 7"<'!r"'"»' '/ 
 Lord Justice Bramwell, in the Case 0/ Evershed v. L. &• N. IV. Ry. Co. (L. R., 3 Q. B. Div. 141.)
 
 STEV£A'S &- HAYNES, BELL YARD, TEMPLE BAR. 17 
 
 Sixth Edition, in royal 8vo, price 34^-., cloth, 
 
 BUCKLEY ON THE COMPANIES ACTS. 
 
 SIXTH EDITION BY THE AUTHOR. 
 
 THE LAW AND PRACTICE UNDER THE COMPANIES ACTS, 
 
 1862 TO 1890, 
 
 AND 
 
 THE LIFE ASSURANCE COMPANIES ACTS, 1870 TO 1872, 
 
 Includinc. the Companies (Memorandum of Association) Act, 
 TuE'Co^n•ANIEs (Windjxo-up) Act, and the Directors' Liadimty Act. 
 
 ^ Tlrcatisc 011 titc g.ilu of Joint ^tock Comp.mics. 
 
 CONTAINING THE STATUTES, WITH THE RULES, ORDERS, AND 
 FORMS, TO REGULATE PROCEEDINGS. 
 
 Bv H. BURTON BUCKLEY, M.A,, 
 
 OK LINCOLN S INN, ESQ., ONE OF HER MAJESTV's COUNSEL. 
 
 Second Edition, in royal 8vo., price 365., cloth. 
 THE L.\W RELATING TO 
 
 SHIPMASTERS AND SEAMEN. 
 
 THEIR APrOINTMEiYT, DUTIES, POWERS, RIGHTS, LIABILITIES, 
 
 on n q r\'\ • • • "! \^^i) remedies. 
 
 bI- THE i.ate JOSEPH KAY, Esq., M.A., Q.C, 
 
 SECOND EDITION. 
 
 Bv THE Hon. J. W. MANSFIELD, M.A., and 
 
 G. W. DUNCAN, Esq., B.A., 
 
 OK THE INNER TEMPLE, BARRISTERS- AT-LAW. 
 
 REVIEWS OF THE WORK: 
 
 From the LIVERPOOL JOURNAL OF COMMERCE. 
 
 J t consists of two lar|e volumes, the text occupying the points on which he touches. 
 nearly twelve hundred pages, and the value of the 
 
 Prom the LAW JOtTRNAL. 
 
 . = The author tells us that for ten years he has co-pile a^guide and r,^^^^^^^ . 
 
 been engaged upon it. . . Two large voa.m., ^f,^"'''Jdtwvers to the list of his pupils ; but his 
 
 I containing n8i pages of text, Si pages of appen- not to add '^w>er^ to '"^.^ ^ ^ ^ ,^^,^^ 
 
 dices, 98 pages of index, and upwards of -3- cited W- ., Zithhp^^St^^^^^^^ ^I'-o^^ "^ 
 
 I cases, attest the magnitude of the work deigned ^;;;^.j^/^;',^%,,^/iS/e-r//, ^uiU be by tkosc wlu, \ 
 
 I "".1^r7ifsays''';hi[-h^Ls -endeavoured to occupy their business in tl^ great ..atcrs.
 
 18 
 
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 in Equity by way of Revivor and Supplement." 
 
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 " 'Scintillae Juris' is that little bundle of humorous essays on law and cognate matters which, since the 
 dayofitsfirstappearance, some years ago, has been the delight of legal circles. . . . It has a quality 
 of style which suggests much study of Bacon in his lighter vein. Its best essays would not be unworthv of 
 the tssays, and \i read out, one by one, before a blindfolded connoisseur, might often be .Tssigned to that 
 wonaertui oook. — Oany Aetvs.
 
 STEVENS 5}= HAYNES, BELL YARD, TEMPLE _ BAR. 19 
 
 Second Edition, in 8vo, 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 TE.MI'LE, Q.C., 
 
 And D. N. iMcNAUGHTON, of the Middle Temple, Bairister-at-Law. 
 
 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 
 
 "The tables and specimen valuations which are 
 printed in an appendi.x 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>ystein of Uompany Rating. There is no doubt 
 
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 In 8vo, 1875, price Ts. 6J., cloth, 
 
 THE LAW OF USAGES & CUSTOMS : 
 
 ■"-'J'- '^ Iractical fafa Sratt. 
 
 By J. H. BALFOUR BROWNE, 
 
 OF THE .MIDDLE TEMPLE, Q.C. 
 
 "\Ve look upon this treatise as a valuable addition to works written on the Science of ha.w."—Cajiaiia 
 Law Joitt-Hitl. , , . . , . , , , . . ', , , J 
 
 ■'As a tract upon a very troublesome department of I^w it is admirable— the principles laid down- are 
 .sound, the illustrations are well chosen, and the decisions and dicta are harmonised so far as possible and 
 distinguished when necessary." — Iris/t Laiv Times. . , , . • i i \. t 
 
 "As a book of reference we know of none so comprehensive dealing with this particular branch ot 
 Common Law In this way the book is invaluable to the practitioner." — i^aw Alagnztne. 
 
 In one volume, 8vo, 1875, price i8j-., cloth, 
 
 THE PRACTICE BEFORE THE RAILWAY COMMISSIONERS 
 
 UNDER THE REGULATION OF RAILWAY ACTS, 1873 & 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 o. 
 Forms of Applications, Answers and Replies, and Appendices of Statutes and Cases. 
 
 By J. H. BALFOUR BROWNE, 
 
 • /r I ■» T/TTT ' ■ OF THE MIDDLE TE.MI'LE, Q.C 
 
 J'^Ir. BroWfae's book is handy and convenient in 
 form, and well arranged for the purpose of refer- 
 ence : its treatment of the subject is fully and 
 carefully worked out : it is, so far as we have been 
 able to test it, accurate and trustworthy. It is the 
 
 work of a man of capabk legal attainments, and by 
 ofiicial position intimate with his subject ; and we 
 therefore think that it cannot fail to meet a real 
 want and to prove of service to the legal profession 
 and the public."— i^«r</ Magazine. 
 
 In 8vo, 1876, price "Js. 6d., cloth, ' 
 
 ON THE COMPULSORY PURCHASE OF THE UNDERTAKINGS 
 OF COMPANIES BY CORPORATIONS, 
 
 And the Practice in Relation to the Passage of Bills for Compulsory Purchase through 
 Parliament. By J. H. Balfour Browxe, of the Middle Temple, (^>.G. 
 "This is a work of considerable importance to all ! both by the promoters Tl^'-X°"Dr^nciDre''of corn- 
 Municipal Corporations, and it is hardly too much to i was the first time in whjh the ^l^J^^^^^f ~"; 
 say thalevery member of these bodies should have pulsory V^f^f^^^^^.^X^P^^^^'^J'f^f^^^^^^ 
 a copy by him for constant reference. Probably, at j can be no doubt 'h^' " ; i" Tf„,^^,;'°;i;nv i n c - 
 no ve?y distant date the property of all the ex sting leading case. ,A^,,^ ■"^"^^/.^"^^^'^^^[he pro-^css 
 gas and water companies will pass under municipal ! dental points °^"''^'?:^.^'°f.^^''^^^^ 
 Control, and therefore it is exceedingly desirable ; of the case. Ihu. ^f^^'f ^^^ '^^^^'^'^^".Xwl eOier 
 that th; principles and conditions under which such ; '^o"^P"l^°'->' P"'"'^ '^^^' ^"^ '^^^^^^en^ for the B f he 
 transfers ought to be made should be clearly under- there was or «'^^ "°' =^"y P-^?^^ 
 stood. Thistask is made easy by the present volume. questions 9 /''^'er compensations ot .^pp^ 
 
 The stimulus for the publication of such a work | ?"« ^o■""""'^\^° -^"^f^^V ^"^ J,' ^t^ted 
 
 was given by. the acrion. of the Parliamentary [-"^^j^^-^fiscu sed J he^e are aU^^ 
 
 CGmm ttee which last .session passed the preanible by the -'^""^'?^ '".^"^'•'""^ " _j- .^^ on the large 
 
 of the 'Stockton and Middlesborough Corporations , '^us a compete legal compend^u^ 
 
 Water Kill, 1876.' The volume accordingly con- subject with which it so .iblj deals. 
 
 tains a full report of the case as it was presented | ^
 
 23 
 
 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 In crown 8vo, price ioj. dd., cloth, 
 
 THE LAW OF EVIDENCE, 
 
 By S. L. PHIPSON, M.A., of the Inner Temple, Barrister-at-Lavv 
 
 "This book condenses a head of law into a 
 comparatively small compass — a class of literary 
 undertaking to which everj' encouragement should 
 be given. . . . The volume is most portalile, most 
 compendious, and as far as we have been able to 
 examine it, as accurate as any laiv book can be 
 expected to be." — Laxu Times. 
 
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 We have tried it in a good many places, and we 
 find that it is well brought down to date." — Laiu 
 yoiirnal. 
 
 In 8vo, 1878, price 6s., clolh, 
 THE 
 
 LAW RELATING TO CHARITIES, 
 
 ESTECIALLY WITH REFERENXE TO THE VALIDITY AM) CONSTRUCTION OF 
 
 CHARITABLE BEQUESTS AND CONVEYANCES. 
 
 By FERDINAND M. WHITEFORD, of Lincoln's Inn, Barrister-at-Law. 
 
 In 8vo, 1872, price 7.;. 6i{., cloth, 
 AN EPITOME AND ANALYSIS OF 
 
 SAYIGNY'S TREATISE ON OBLIGATIONS IN ROMAN LAW. 
 
 By ARCHIBALD BROWN, M.A. 
 
 EDIX. AND OXON., AND B.C.L. OXON., OF THE MIDDLE TE.Ml'LE, BARRISTER-AT-LAW. 
 
 " Mr. Archibald Brown desei-i'es 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 consisting of two volumes, 
 with some five iumdred 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." — Laiu 
 Journal. 
 
 THE ELEMENTS OF ROMAN LAW. 
 
 Second Edition, in crown 8vo, price 6s., cloth, 
 A CONCISE DIGEST OF THE 
 
 INSTITUTES OF GAIUS AND JUSTINIAN. 
 
 With copions References arranged in rarallcl Columns, also Chronological and 
 
 Analytical Tables, Lists of Laws, is^c. i^c. 
 
 Prinnarily 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., 
 
 V.ORCESTER COLLEGE, OXFORD, AND THE INKER TEMI'LE, BARRISTER-.\T-LA\V 
 AUTHOR OK " UNIVERSITIE.S AND LEGAL EDUCATION." 
 
 " M?-. Haj-ns's digest ought to have very great success among lata students both in the 
 Inns oj Court and the Universities. His booh skives evidence of paise'.oorthy acctiracy 
 and laborious condensation.'' — Law Jouknal. 
 
 • 'Vr'" '^r^ co'itains a summary in English of the elements of Roman Law as contained 
 mihe 'U'oiks of Gains and Justinian, and is so arranged that the reader can at once see 
 what are the opinions of either of these two writers on each point. From the very exact 
 and accurate references to titles and sections given he can at once refer to the original 
 'u-riters. The concise mantter in which Mr. Harris has arranged his di-^est will render 
 tl most useful, not only to the students for whom it -was ori'rinally written, ^ but also to those 
 persons who. fiough they have not the time to wade throu:jh the larger treatises of Posf, 
 Sanders, Ortolan, and others, yet desire to obtain some knowledge of Roman Law.-— 
 Oxford and Camiiridge Undrrgraduatks' Journai 
 
 ''Mr. Harris deserves the credit of hailing produced an epitome which will be of sc,-vice 
 to those numerous students xvho have no time or stiff cient ability to analyse the Institutes 
 for themselves.^ — Law Timk.s.
 
 WORKS FOR LAW STUDENTS. 21 
 
 Fourth Edition, in 8vo, price 2Ij., cloth, 
 
 ENGLISH CONSTITUTIONAL HISTORY: 
 
 FROM THE TEUTONIC INVASION TO THE PRESENT TIME. 
 
 ^csigncl) as a "(Ecvt-book for <Stiibcnt3 -.uvb ntlicrs. 
 
 By T. p. TASWELL-LANGMEAD, B.C.L., 
 
 OF j.incoln's inn, rarrister-at-law, formerly vinerian scholar in the university, 
 
 AND late professor OF CONSTITUTIONAL LAW AND HISTORY, 
 UNIVERSITY COLLEGE, LONDON. 
 
 Fourth Edition, Revised throughout, with Notes and Appendices. 
 By C. H. E. Carmichael, M.A. Oxon. 
 
 "Mr. Carmichael has performed his allotted task with credit to himself, and the high standard of 
 excellence attained by Taswell-Langmead's treatise is worthily maintained. This, the third edition, will 
 be found as useful as its predecessors to the large class of readers and students who seek in its pages 
 accurate knowledge of the history of the constitution." — Law Tiiites. 
 
 "To the student of constitutional law this work will be invaluable _ The book is remarkable 
 
 for the raciness and vigour of its style. The editorial contributions of Mr. Carmichael are judicious, and 
 add much to the value of the work." — Scottish Laiu Ktrz'uw. _ 
 
 "The work will continue to hold the field as the best class-book on the subject."— C^«/^/«/^'«>y Revie'.v. 
 
 " The book is well known as an admirable introduction to the study of constitutional law for students at 
 
 law Mr. Carmichael appears to have done the work of editing, made necessary by the death 
 
 of Mr. Taswell-Langmead, with care and judgment." — Law yonrnal. 
 
 " The work before us it would be hardly possible to praise too highly. In style, arrangement, clearness, 
 and size, it would be difficult to find anything better on the real history of England, the history of its 
 constitutional growth as a complete story, than this volume." — Boston (U.S.) Literary World. 
 
 "As it now stands, we should find it hard to name a better text-book on English Constitutional 
 History." — Solicitors' yonrnal. , t- i- u /-■ • ■ j, 
 
 " Mr. Taswell-Langmead's compendium of the rise and development of the English Constitution has 
 
 evidently supplied a want The present Edition is greatly improved. . . . We have no hesitation in 
 
 saying that it is a thoroughly good and useful work." — .spectator. _ « f-j i. 
 
 " It is a safe, careful, p'raiseworthy digest and manual of all constitutional history and law. —Ulobe. 
 
 "The volume on English Constitutional History, by Mr. Taswell-Langmead, is exactly what such a 
 history should be." — Statulard. t • u • a v 
 
 " 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 iis 
 great superiority over its rivals." — Aciuieiiiy. 
 
 Second Edition, in 8vo, price 6.f., cloth, 
 
 HANDBOOK TO THE INTERMEDIATE AND 
 FINAL LL.B. OF LONDON UNIVERSITY ; 
 
 (PASS AND HONOURS), 
 
 Including A COMPLETE SUMMARY OF "AUSTIN'S JURISPRUDENCE, =' 
 
 AND THE EXAMINATION PAPERS of LATE YEARS IN ALL BRANCHES. 
 
 By a B.A., LL.B. (Lond.). 
 
 " Increased in size and usefulness. . . . The book will undoubtedly be of help to tW^^^^ 
 who prepare themselves for examination. ... The Appendix contains a good selection of pap«s 
 set at the different examinations." — Law Times. ,»„, r>« ttu" r ^'„ V-i/.-c 
 
 "A very good handbook to the Intermediate and Final LL.B. by a B.A., LL.B. —i^aM .\ous. 
 
 . Jn Crown 8vo, price 1$. ; or Interleaved for Notes, pricey., 
 
 •^* ^CONTRACT LAW.3UU 
 
 QUESTIONS ON THE LAW OF CONTRACTS. With Notes tc the 
 
 Answers. Founded on ''Anson," '' Chitty," and '' Pollock. 
 
 By PHILIP Foster Aldred, D.C.L., Hertford College and Gray's Inn ; late 
 
 E.xaminer for the University of Oxford. 
 
 "This appears to us a very admirable selection of quest ions, .comparing favoumbly with jthe average 
 
 run of those set in examinations, and useful for the purpose of testing progress. -Law JonrftM. 
 
 ^ .^-^.— 
 
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 24 WORKS FOR LAW STUDENTS. 
 
 Sixth Edition. In one volume, 8vo, price 20.r., cloth, 
 
 PRINCIPLES OF THE COMMON LAW. 
 
 INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. 
 SIXTH EDITION. 
 
 By JOHN INDERMAUR, Solicitor, 
 
 AUTHOR OF "A MANUAL OF THE PRACTICE OF THE SUPREME COURT," 
 " EPITOMES OF LEADING CASES," AND OTHER WORKS. 
 
 " The Student will find in Mr. Indermaur's book a safe and clear guide to the Prin- 
 ciples of Common Law." — Laiv Journal, 1892. 
 
 "The present edition of this elementary treatise has been in general edited with praise- 
 worthy care. The provisions of the statutes affecting the subjects discussed, w-hich have 
 been passed since the publication of the last edition, are clearly summarised, andtheeflfect 
 of the leading cases is generally very well given. In the difficult task of selecting and 
 distinguishing principle from detail, Mr. Indermaur has been very successful ; the leading 
 principles are clearly brought out, and very judiciously xWasXi^'i^A." — Solicitors' Journal. 
 
 " The work is acknowledged to be one of the best written and most useful elementary 
 works for Law Students that has been published."— Za7c/ Times. 
 
 " The praise which we were enabled to bestow upon Mr. Indermaur's very useful com- 
 pilation on its first appearance has been justified by a demand for a second edition." — 
 Zazv Magazine, 
 
 "We were able, four years ago, to praise the first edition of Mr. Indermaur's book as 
 likely to be of use to students in acquiring the elements of the law of torts and contracts. 
 The second edition maintains the character of the book."— Z^ii; Journal. 
 
 "Mr, Indermaur renders even law light reading. He not only possesses the faculty 
 of judicious selection, but of lucid exposition and felicitous illustration. And while his 
 works are all thus characterised, his ' Principles of the Common Law ' especially displ.iys 
 those features. That it has already reached a second edition, testifies that our estimate of 
 the work on its first appearance was not unduly favourable, highly as we then signified 
 approval ; nor needs it that we should add anything to that estimate in reference to the 
 general scope and execution of the work. It only remains to say, that the present edition 
 evmces that every care has been taken to insure thorough accuracy, while including all 
 the modifications in the law that have taken place since the original publication ; and that 
 the references to the Irish decisions which have been now introduced are calculated to 
 render the work of greater utility to practitioners and students, Iwtli English and Irish." 
 — Ir7sli Laiij Times. 
 
 " This work, the author tells us in his Preface, is -ufritten mainly with a view to the 
 examinat-.ons of the Incorporated Lazu Society ; but we think it {s likely to attain a wider 
 mefuhiess. It seems, so far as we can judge from the farts wc have examined, to be a 
 careful and clear outline of the principles of the common law. It is very readable ; and 
 not only students, but many practitioners arui the public, mi^ht benefit by a perusal of its 
 /aj-^j."— Solicitors' Journal. /
 
 IVORKS FOR LAW STUDENTS. 25 
 
 Sixth Edition, in 8vo, price 14-f., cloth, 
 
 A MASUE OF THE PRACTICE OF THE SUPREME COURT OF JUDICATURE, 
 
 IN THE QUEEN'S BENCH AND CHANCERY DIVISIONS. 
 Sixth Edition, adapted to the new Rules of Court of November, 1893. 
 Intciuied for the use of Students ami the Profession. 
 By John Indermaur, Solicitor. 
 
 "Mr. Indermaur has brought out a sixth edition of his excellent ' Manual of Practice' at a very 
 opportune time, for he has Ijecii able to incorporate the effect oi the new Rules of Court which came into 
 force last November, the 'I'rustee Act, 1893, and Rules, and the Supreme Court Fund Rules, 1S93, as 
 well as that of other Acts of earlier date. A very complete revision of the work has, of course, been 
 necessary, and Mr. Indermaur, assisted by Mr. 'Ihwaites, has effected this with his usual thoroughness 
 and careful attention to details. 'The book Ls well known .ind valued by students, but practitioners also 
 find it handy in many ca.ses where reference to the bulkier ' White Hook ' is unnecessary." — Laiv Titties, 
 {•'elrritary, 1894. 
 
 " This well-know n students' book may very well be consulted by practitioners, as it contains a considerable 
 amount of reliable information on the practice of the Court. It is written so as to include the new Rules, 
 and a supplemental note deals with the alterations m.tde in Rule XI by the Judges in January last. The 
 praise which we gave to previous editions is quite due to the present issue. " — Law 'jfottrtiat, Fet'Vitary, 1894. 
 
 Seventh Edition, in 8vo, price 6^., cloth, 
 
 AN 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 second in April, 1874; 
 and now we have a third edition dated September, 1875. No better proof of the value of this book can be 
 furnished than the fact that in less than three years it has reached a third editio n." — La'v yotiriinl. 
 
 Seventh Edition, in 8vo, price 6s., cloth, 
 
 AN EPITOME OF LEADING CONVEYANCING AND EQUITY CASES; 
 
 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 verj' useful Epitome of Leading Convey- 
 ancing and Equity Cases. The work is very well done." — Ln7u Tiim's. _ _ 
 
 "The Epitome well deserves the continued patronage of the cla.ss— Students— for whom it is especially 
 intended. Mr. Indermaur will soon l)e known as the ' Students' Friend.' " — Catiada Law Jotiriial. 
 
 Fifth Edition, in 8vo, price 5^-. 6^/., 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 sulticient 
 to carry him through the Final Examination." — Solicitors Joiiriial. • f ' . f r » ? | *"{' 
 
 '' i ' ■ ^ Fourth Edition, in 8vo, price 8i., cloth',' /'\! 3TTT 
 
 SELF -PREPARATION FOR THE INTERMEDIATE EXAMINATION, 
 
 As it at present exists on Stephen's Commentaries. Containing a complete course of 
 Study, with Statutes, Questions, and Advice as to portions of the book which may 
 be omitted, and of portions to which special attention should be given ; also the 
 whole of the Questions and Answers at the Intermediate E.xammations which 
 have at present been held on Stephen's Commentaries, and intended for the use of 
 all Articled Clerks who have not yet passed the Intermediate Examination. By 
 John Indermaur, Author of " Principles of Common Law, " and other works. 
 
 In 8vo, 1875, price 6s., cloth, 
 
 THE STUDENTS' 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.
 
 26 WORKS FOR LAW STUDENTS. 
 
 „_,j^.^.^„^ Fifth Edition, in Crown 8vo, price 12s. 6d., cloth,-- n^ T»rTTf»}|jj » 
 
 AN EPITOME OF CONVEYANCING STATUTES', 
 
 Extending from 13 Edw. I. to the End of 55 & 56 Victors:. Fifth 
 Edition, with Short Notes. Bj- George Nichols Marcy, of Lincoln's Inn, 
 Barrister-at-Law. 
 
 Second Edition. In Svo, price 26.s'., cloth, 
 
 A NEW LAW DICTIONARY, 
 
 AND INSTITUTE OF THE WHOLE LAW ; 
 
 EMBRACING FRENCH AND LATIN TERMS AND REFERENCES TO THE 
 AUTHORITIES, CASES, AND STATUTES. 
 
 SECOND EDITION, revised throughout, and considerably enlarged. 
 By ARCHIBALD BROWN, 
 
 M.A. EDIN. AND OXON., AND B.C.L. OXON., OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW ; AUTHOR OF 
 THE "law of fixtures," "ANALYSIS OF SAVIGNV's OBLIGATIONS IN ROMAN LAW," ETC. 
 
 Reviews of the Second Edition. 
 
 ".9^ far as %ue have been able to examine the work, it seems to have been most carefully 
 and acairaiely executed, the f resent Edition, besides containing much new matter, haznw^ 
 been thoroughly revised in consequence of the recent changes in the law ; and we have no 
 doubt whatever that it 7vill be found extremely useful, 7iot only to students and practitioners, 
 but to public men, and meji of letters." — Irish Law Times. 
 
 "Mr. Brown has revised his Dictionary, and cuiapted it to the changes effected by the 
 yudicaiure Acts, and it noic constitutes a very useful work to put into the hands of any 
 student or articled clerk, and a 7oork which the practitioner xvill find of value for reference." 
 — Solicitors' Journal. 
 
 " // will prove a reliable guide to la'c students, and a handy book of reference for 
 practitioners. '' — LAW TiMES. 
 
 In Royal 8vo., price 5.f., cloth, 
 
 ANALYTICAL TABLES 
 
 THE LAW OF REAL PROPERTY; 
 
 Drawn up chiefly from STEPHEN'S BLACKSTONE, with Notes. 
 By C. J. TARRING, of the Inner Temple, Barrister-at-Law. 
 
 CONTENTS. 
 '^'abi.e I. Tenures. Table V. Uses. 
 
 ,, 11. Estates, according to quantity of -vri \ ■ •.• r r- . . • 1 j «« 
 
 Tenants' Interest > "' ,, VI. Acquisition cf Estates in land of 
 
 „ III. Estates, according 'to the time at freehold tenure. 
 
 which the Interest is to be enjoyed. >> VII. Incorporeal Hereditaments. 
 
 ,, IV. Estates, according to the number and | „ VIII. Incorporeal Hereditaments, 
 
 connection of the Tenants. I 
 
 " Great care and considerable skill have been shown in the compilation of these t.ibles, « hich will Ije 
 found of much service to students of the Law of Real Property."— Z-aTj- Times.
 
 IVORKS FOR LAW STUDENTS. 27 
 
 Sixth EtlUion, in 8vo, price 20.r., cXdCa^''^'^^'^ 
 
 PRifCIPLES OF THE CRIMINAL LAI: 
 
 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. (Oxon.), 
 
 _ ^ , ^AUTHOR OF "a CONXISE DIGEST OF THE INSTITUTES OF GAIUS AND JUSTINIAN." 
 
 mi m cm '^r ^mmMM^i^'''' '"-'-"" ^ 
 
 By C. L. ATTENBOROUGH, of the Inner fempie,'Ban-isterat-Law. 
 
 REVIEWS. 
 
 •' riie cliaractci-i.Atic of the present Eilition is the restoration to the boolc of the character of ' a concise 
 exposition ' ijroclainied l)y the titl_e-pai;e. Mr. Attenborough has carefully pruned away the excrescences 
 which had_ arisen in s,uccessi\e editions, and has improved the w ork both as regards terseness and clearness 
 of exposition. In both respects it is now an excellent student's book. The text is very well broken up 
 into headinixs and paragraphs, with short marginal notes — the importance of which, for the convenience 
 of the student, is too often overlooked." — Solicitors' Jonr>ial. 
 
 " We think the book -always a favourite with students — has got a new lease of life, and will now prove 
 the only text book which most men will care to study until they get beyond the examination stage of their 
 existence. ,. . . On fhe' whole our verdict is that the new Edition is distinctly a success, and We have no 
 hesitation lu .canliuending; it to the .student as the best text book that exists for his purposes." — Laiv 
 Stiuieuts' Joiirital. 
 
 " The favourable opinion 'toe expressed of the first edition of this -cvork appears to have 
 been justified by the reception it has met with. Looking through this ne2a Edition, u'e see 
 no reason to modify the praise ive bestoived on the former Edition. The recent cases have 
 been added and the provisions of the Summary Jurisdiction Act are noticed in the chapter 
 relating to Summary Convictions. The book is one of the best manuals of Criminal La-M 
 for the student.'" — Solicitors' Journal. 
 
 " There is vo lack of Works on Criminal La-v, but there was room for such a useful 
 handbook of Principles, as Mr. Seymour LLarris has supplied. Accustomed, by his previous 
 labours, to the task of analysing the law, 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, Jor it does not pretend to soar 
 above utility to the you)ig practitioner and the student. For both these classes, and for 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 Law. A noticeable feature of Mr. Harris's 7C'i>rk, 
 wliich is likely to prove of assistance both to the practitioner and the student, consists of a 
 Table of O fences, with their legal character, their punishment, and the statute under which 
 it is inflicted, together with a reference to the pages where a Statement of the La~v 'will be 
 fbund." — L.\w Magazine and Review. 
 
 "This work purports to contain 'a concise exposition of the nature of crime, the various offences punish- 
 able by the English law, the law of criminal procedure, and the law of summary convictions,' with tables 
 of offences, punishments, and statutes. The work is divided into four books. Book I. treats of crime, its 
 divisions and essentials ; of persons capable of committing crimes ; and of principals and accessories. 
 Book II. deals with offences of a public nature ; offences 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 unmitiated. 
 Book IV. contains a short sketch of ' summary convictions before magistrates out of quarter sessions. 1 he 
 table of offences at the end of the volume is most useful, and there is a very full index. Altogether we 
 must congratulate Mr. Harrison his adventure." — Law Journal. 
 
 "Mr. Harris has undertaken a work, in our opinion, so much needed that he tnight 
 diminish its bulk in the next edition by obliterating the apologetic preface. The appearance 
 of his volume is as well timed as its execution is satisfactory. The author has shown an 
 ability of omission which is a good test of skill, and from the ovo-ivhelming mass of the 
 criminal latu he has discreetly selected Just so much only as a learner needs to knoxr, and 
 
 { has presented it in terms which render it capable of being easily taken into the mmd.' — 
 
 I Solicitors' Journal.
 
 28 WORKS FOJi LAW STUDENTS. 
 
 Second Edition, in crown 8vo, price 5^. 6:/., cloth, 
 
 THE STUDENTS' GUIDE TO BANKRUPTCY; 
 
 Being a Complete Digest of the Law of Bankruptcy in the shape of Questions and 
 Answers, and comprising all (Questions asked at the Solicitors' Final Examinations 
 in Bankruptcy since the Bankruptcy Act, 18S3, and all important Decisions since 
 that Act. By John Lndermauk,' Solicitor, Author of " Principles of Common 
 Law," &c., &c. 
 
 In l2mo, price 5J. dd., cloth, 
 
 A CONCISE TREATISE ON THE LAW OF BILLS OF SALE, 
 
 FOR THE USE OF LAWYERS, LAW STUDENTS, & THE BUBLIC. 
 
 Embracing the Acts of 1878 and 1882. Bart L— Of Bills of Sale generally. Part H.— 
 Of the Execution, Attestation, and Registration of Bills of Sale and satisfaction 
 thereof. Part HL — Of the Effects of Bills of .Sale as against Creditors. Part IV. 
 — Of Seizing under, and Enforcing Bills of Sale. Appendix, Forms, Acts, &c. 
 By John IndeRiMaur, Solicitor. 
 
 '• The object of the book is thoroughly practical. Those who want to be told exactly what to do and 
 where to go when they are registering a bill of sale will iind the necessarj' information in this little book." 
 — La~iu yournal. 
 
 In 8vo, price 2x. 6</., cloth, 
 
 A COLLECTION OF LATIN MAXIMS, 
 
 LITERALLY TRANSLATED. 
 INTENDED FOR THE USE OF STUDENTS FOR ALL LEGAL EXAMINATIONS. 
 " The book seems admirably adapted as a book of reference for students who come across a Latin maAim 
 in their reading." — Laiu Journal. 
 
 In one volume, 8vo, price gj., cloth, 
 
 LEADING STATUTES SUMMARISED, 
 
 FOR THE USE OF STUDENTS. 
 By ERNEST C. THOMAS, 
 
 BACON SCHOLAR OF THE HON. SOCIETY OF GRAV's INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD; 
 AUTHOR OF " LEADING CASES IN CONSTITUTIONAL LAW BRIEFLY STATED." 
 
 Second Edition, in Svo, enlarged, price 6j., cloth, 
 
 LEADING CASES IN CONSTITUTIONAL LAW 
 
 Briefly Stated, wtt.u Introduction 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 bodv, 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 ; 
 ^' ' ' V^" (°"°^^'"^ ^ summary of leading cases."— .iVi;«;-rfV,j/ Rcvinv. 
 
 Mr. Ihomas gives a sensible introduction and a brief epitome of the familiar leading ca.ses."— Z,<iJi/ 
 
 in Svo, 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 
 t ivil Service, late Judge and Sessions Judge of Tanna.
 
 STEVENS &- HAYNES, BELL YAUD, TEMPLE BAR. 
 
 29 
 
 Second Edition, in crown 8vo, price I2s. 6d., cloth, 
 
 THE BANKRUPTCY ACT, 1883, 
 
 With Notes of all the Cases decided under the Act ; 
 The COxNSOLIDATED RULES and FORMS, i8S6 ; The DEirroRS Act iS6g so 
 
 FAR AS AITLICAIILE TO BANKRUPTCY MATTERS, WITH RULES AND FOR.MS 
 
 thereunder; the Bills ok Sale Acts, 1878 and 1882; 
 Board of Trade Circulars and Forms, and List of Official Receivers ; Scale of Costs 
 Fees, and Percentages, i8S6; Orders of the Bankruptcy JikIw of the Hieh 
 Court ; and a Copious Index. ^ 
 
 Bv WILLIAM HAZLITT, Esq., and RICHARD RINGWOOD MA 
 
 SE.MOR REGISTRAK IN UANKRll-rCV, oK TME MIDDLE TEMPLE, ES..., HARRISTER-AT-LAW. 
 
 Second Edition, by R. RINGWOOD, M.A., Barrister-at-Law. 
 
 '•Thisisaveohandyeditionof the Act and Rules The cross references and marcrinal 
 
 references to conresponding provisions ot the Actof 1S69 are exceedingly useful. . . . There is a verv 
 full index, and the book is admirably iiTmtsd"— Solicitors Jour.ital. ^ 
 
 Part I., price 7.^. dd., sewed, 
 
 LORD WESTBURY'S DECISIONS IN THE 
 
 EUROPEAN ARBITRATION. Reported by Francis S. Reilly, 
 
 of Lincoln's Inn, Barrister-at-Law. 
 
 Parts I., II., and III., price 25^., sewed, 
 
 LORD CAIRNS'S DECISIONS IN THE ALBERT 
 
 ARBITRATION. Reported by Francis S. Reilly, of Lincoln's Inn, 
 Barrister-at-Law. 
 
 Second Edition, in royal Svo, price 30J., cloth, 
 A TREATISE ON 
 
 THE STATUTES OF ELIZABETH AGAINST 
 FRAUDULENT CONVEYANCES. 
 
 The Bills of Sale Acts 1S78 and 1882 and the LAW OF VOLUNTARY 
 
 DISPOSITIONS OF PROPERTY. 
 
 By the late H. W. MAY, B.A. (Ch. Ch. Oxford), 
 
 Second Edition, thoroughly revised and enlarged, by S. Worthington Worthington, 
 
 of the Inner Temple, Barrister-at-Law. 'Editor of the "Married Women's 
 
 Property Acts," 5lh edition, by the late J. R. Griffith. 
 
 "In conclusion, we can heartily recommend this " Mr. Wcrthington's work appears to have been 
 
 book to our reader -i, not only to those who are in conscientious and exhaustive."— i"rt/«>vr'rti'j^<?z/iV7i, 
 
 large practice, and who merely want a clavsified n t?, • • At At • l i .- , 
 
 list of cases, but to those who have both the desire <,,, ,^^ -"l^ • ' „• ^' ^ ^°°^ "'^ ^"^^ " con- 
 
 and the leisure to enter upon a systematic study of f„"i ■'','"; '"'^"'^nce and precision which 
 
 our \t.^:- -Solicitors Journal. ^ '^"^^"^ •" entirely worthy of being accepted as a 
 
 " As Mr. AVorthington points out. since Mr. May ?,,, w/^ T\ '^°""^^^^d'>•, difficult subject. The 
 
 wrote, the 'Bills of Sale Acts ' of 187S and 1882 ^"^Jf" '\^". '"^o'ved one. bijt with clean and clear 
 
 have been p.issed ; the ' Married Women's Property ^andling u is here presented as clearly as it could 
 
 Act, 1882 '(making settlements by married women ,,!;f:,M ' V"/ ''' ' ^^.^as. produced a verj- 
 
 void as against creditors in cases in which similar "«f"'.'^oo'< °f a" ^-^^t'onally scientific character." 
 
 settlements by a man would be void), and the '. -^^^'"■'^"'-^ Journal. 
 
 'Bankruptcy Act, 1883.' These Acts and the deci- , " The subject and the work are both very good. 
 
 sions upon them have been handled by Mr. Worth- i The former is well chosen, new, and interesting ; 
 
 ington in a manner which shows that he is master '^^ latter has the quality which always distin- 
 
 of hLs subject, and not a slavish copyist of sections ; guishes original research from borrowed labours." 
 
 and head-notes, which i, a vicious propensity of ! — American Lazv Review. 
 
 many modern compilers of te.M-books, His Table i " We are happy to welcome his(Mr. May's) work 
 
 of Cases (with reference to all the reports), is \ as an addition to the, we regret to say, brief cata- 
 
 admirable, and his Inde.x most e.\haustive."— Zaw I logue of law books conscientiously executed. We 
 
 •T'-fi' 1 r V I ■ . can corroborate his own description of his labours 
 
 ITie results of the authorities appear to be I ' that no pains have been spared to make the book 
 
 given well and tersely, and the treatise will we | as concise and practical .-is pos.sible, without doine 
 
 thuik be found a convenient and trustworthy book so at the expense of perspicuity or by the omission 
 
 of reference, —/.rtrc 7<;«r;;a/. | cf any important points.' "—Zaiw r//««
 
 so 
 
 STEVENS &^ HAYNES, BELL YAT^D, TEMPLE BAR. 
 
 In one volume, medium 8vo., price 38^., Cloth ; or in Half- Roxburgh, 425. , 
 
 A HISTORY OF THE FORESHORE 
 
 AND THE LAW RELATING THERETO. 
 
 With a Hitherto UNrur.LisiiED Treatise by Lord Hale, Lord Hale's 
 " De Jure Maris," and the Third Edition of Hall's Essay on the 
 
 RIGHTS OF THE CROWN IN THE SEA-SHORE. 
 
 With Notes, and an Ait'Endix relating to Fisheries. 
 By STUART A. MOORE, F.S.A., 
 
 OF THE INNER TE>n'LE, liAKKISTEK-AT-LAXV 
 
 '■ 'I'his work is nominally a third edition of the 
 late Mr. Hall's essay on the rights of the Crown in 
 the Sea-shore, but in reality is an absolutely new 
 production, for out of some 900 odd pages Hall's 
 essay takes up but 227. Mr. Moore has written a 
 book of great importance, which should mark an 
 epoch in the history of the rights of the Crown and 
 the subject in the UUcs maris, or foreshore of the 
 kingdom. Hall's treatise (with Loveland's nole.s) is 
 set out with fresh notes by the present editor, who 
 is anything but kindly disposed towards his author, 
 for his notes are nothing but a series of exposures 
 of what he deems to be Halt's errors and misrepre- 
 sentations. Mr. Moore admits his bookto be a 
 brief for the opposite iide of the contention sup- 
 ported by Hall, and a more vigorous and argu- 
 mentive treatise we have scarcely ever seen. Its 
 arguments are clearly and broadly disclosed, and 
 supported "oy a wealth of facts and cases which 
 show the research of the learned author to have 
 been most full and elaborate. . . . There is no 
 doubt that this is an important work, which must 
 ha'.e a considerable influence on that branch of the 
 law with which it deals. That law is contained in 
 ancient and most inaccessible records ; these have 
 now been brought to light, and it may well be 
 that important results to the subject may flow 
 therefrom. The Profession, not to say the general 
 public, owe the learned author a deep debt of 
 gratitude for providing ready tp Jtand such ai 
 
 wealth of materials for founding and building up 
 arguments. Mr. Stuart Moore has written a work 
 which must, unless his contentions are utterly un- 
 founded, at once become the standard text-book on 
 the law of tile Sea-shore." — Law Times, L>cc. jst, 
 
 "Mr. Stuart Moore in his valuable work on the 
 Foreshdre." — TJu' Times. 
 
 " Mr. Stuart Modie's work 00 the title of the 
 Crown to the land around the coast of England 
 lying between the high and low water-mark is 
 something more than an ordinary law book. It is 
 a history, and a very interesting one, of such land 
 and the rights exercised o\"er it from the earlie.ft 
 tinie.s to the present day; .ind a careful stud j-. of 
 the facts contained in the book and of the argu- 
 ments brought forward csio sc:u-cely fail to convince 
 the reader of the inaccuracy of the theory, now so 
 constantly put forward by the Crown, that without 
 the exi>tcnce of special evidence to the contrary, 
 the land which adjoins riparian jiroperty, and 
 which is covered at high tide, belongs to the 
 Crown and not to the owner of the adjoining 
 manor. The list which Mr, Moore gives of piares 
 where the <|tiestion of foreshore Has been ilrpady 
 raised, and of those as to which evidence 'o."! the 
 subject exists amongst the public records, is valu- 
 able, though by no hieane exhaustive ; and the 
 book should certainly find a place in the library of 
 the lord of every rip.arian manor." — Morning I'vst. 
 
 In one volume, Svo, price I2.f., cloth, 
 A TREATISE ON THE LAW RELATIN(; TO THE 
 
 POLLUTION AND OBSTRUCTION OF WATER COURSES ; 
 
 Together with a Brief Summary oe the Various Sources of Rivers 
 
 Pollution. 
 
 By CLEMENT HIGGINS, M.A., F.C.S., 
 
 OF THE INNER TEMPLE, UARRISTER-AT-LAW. 
 
 "As a coinpendium 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 Prevention Act, 1876, or to adjudicate upon 
 those proceedings when brought. " — /?7i/i Law 
 Times. 
 
 "We can recommend Mr. Higgins' Alanu.M as 
 
 the best guide we possess."— /^//^//c Health. 
 
 I "County Court Judges, Sanitarj' .Authorities, 
 
 and Riparian Owners will find in Mr. Higgins' 
 
 j Treatise a valuable aid in obtaining a clear notion 
 
 I of the Law on the Subject. ISIr. Higgins has 
 
 accomplished a work for which he will readily be 
 
 recognised as having special fitness on account of 
 
 his practical acquaintance both with the scientific 
 and the legal aspects of his subject." — Law Maga- 
 zine and Keviciv. 
 
 "The volume is very carefully arranged through- 
 out, and will prove of great utility both to miners 
 and to owners of land on the banks of rivers.' — 
 T/ic Mining yournal. 
 
 "Mr. Higgins writes tersely and clearly, while 
 his facts are so well arranged that it is a plea.sure 
 to refer to his book for information ; and altogether 
 the work is one which will be found ver>' 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." — Soliciion' 
 yoitrna!. 
 
 I
 
 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 
 
 31 
 
 In 8vo, Fiinii Edition, price 28^., cloth. 
 
 MAYNE'S TREATISE IdSA 
 
 THE LAW OF DAMAGES. 
 
 FIFTH EDITION. 
 KEVISKI) AND PARTLY RE-WRITTEX. 
 
 BY 
 
 JOHN D. M A Y N E, 
 
 OF THE 1N.VEI{ TEJIHI.F, liARRISTER-AT-LAW; . T 'T T T ■■? 
 
 AND 
 
 His Honor Judge LUMLEY SMITH, O.C. 
 
 "Few books liave been heller kept up to the current law than this treatise. The earlier part 
 or tlie book was reniodclled in the last edition, and in the present edition the chapter on 
 1 enalties and Liquidated Damages has been re-written, no doubt in consequence of or with 
 regard to, the elaborate and exhaustive judgment of the late Master of the Rolls in ivallis v 
 Smith (31 W. R. 214 ; L. R. 21 Ch. D. 243). The treatment of the subject by the authors is 
 admirably cle;ir and concise. Upon the point involved in IFi/Z/w v. .?w///; thev sav ' The 
 result IS that an agreement with various covenants of different importance is not to be cr^verned 
 by any inflexible rule peculuir to itself, but is to be dealt with as coming under the "^eneral rule 
 that the intention of the parties themselves is to be considered. If they have said that in the 
 case of any breach a fi.ved sum is to be paid, llien they will be kept to their agreement unless 
 It would lead to such an absurdity or injustice that it must be assumed that they did not mean 
 what they said.' This is a very fair bummary of the judgments in VVallii v. Smith especially 
 of that of Lord Justice Cotton ; and it supplies the nearest approach which can be^iven a't 
 present to a rule for practical guidance. We can heartily commend this as a carefully edited 
 edition of a thoroughly good book." — Solicitors' Journal. 
 
 " The editors liave, with their well-known care, eliminated much obsolete matter, and revised 
 and corrected the text in accordance with the recent changes in procedure and legislation. The 
 chapter on penalties and liquidated damages has been to a great extent re-w.-itten, and a new 
 chapter has been added on breach of statutory obligations. As of former editions of this valua- 
 ble work, we can but speak of it with strong commendation as a most reliable authoritv on a 
 very important branch of our law— the Right to Damages as the result of an .A.ction at 'Law." 
 — Law Joiinntl. 
 
 ' ' Dttritig the hvcitty-two years iv/iich Jtavc elapsed since the publication of this wcll-knoivn 
 work, its reputation has been steadily grmving, and it has long since become the recoonised 
 authority on tlie important subject of 'Mhich it treats.'' — Law Magazine and ReV'IEW. 
 
 "This edition of what h.^s l>ecome a standard | what the facts proved in their judgment required. 
 
 _i, u .!,» -.1 . r _i- ..__ And, according to the better opinion. .they may give 
 
 damages 'for example's sake,' and mulct a rich 
 
 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. man more heavily than a poor one. In actions for 
 '^'he result is most satisfactory. _ Mr. Lumley ; injuries to property, however, 'vindictive' 
 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 
 
 'exemplary' damages cannot, except in veryraie 
 cases, be awarded, but must be limited, as in con- 
 tract, to the actual harm sustained. 
 
 "It is needless to comment upon the arrangement 
 
 of the subjects in this edition, in which no alteration 
 
 h.as been m.-ide. I'he editors modestly express a 
 
 hope that all the English as well as the principal 
 
 . ._ Irish decisions up to the date have been included, 
 
 tort arc brief. We agree with him that in such ; and we believe from our own examination that the 
 
 considerable extent entirely rewritten. 
 
 " Mr. M.ayne's remarks on damages in actions of 
 
 actions the courts are governed by far looser princi- , hope is well founded. We may regret that, warned 
 
 pies than in contr.acts ; indeed, sometimes it is by the growing bulk of the book, the editors have 
 
 impossible to say they are governed by any princi- i not included any fresh American cases, but we feel 
 
 pies at .all. In actions for injuries to the person or , that the omission was unavoidable. We should add 
 
 reputation, for example, a judge cannot do more that the whole work has been thoroughlj' re vised," 
 
 than give a general direction to the jury to give I Solicitors' Journal. 
 
 " This text-book is so luell knozun, not only as the highest authority on the sid'jcct Ireatai 
 of but as one of the btst text-books ever 7urilten, that it would be idle for us to speak of it 
 in the words of commendation that it deserves. It is a work that no practising lawyer can 
 do without.'' — C.'iNADA Law Journal.
 
 32 STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. 
 
 In crown 8vo, price a,s. 6if., cloth, 
 
 ABSTRACT DRAWING. Containing Instructions on 
 
 the Drawing of Abstracts of Title, and an Illustrative Appendix. By C. E. ScOTT, 
 
 Solicitor. 
 
 "This little book is intended for the assistance of those who have the framing of abstracts of title 
 
 entnisted to their care. It contains a number of useful rules, and an illustraliveappendix-. -La-,o finus. 
 
 " \ handy book for all articled clerks."— jCrt5:f6"j'«</f«/'/ 7<w;v,-a/. _ , . , , 
 
 " Solicitors who have articled clerks would save themselves much trouble if they furnished the.r clerks 
 
 with a copy of this little book before putting them on to draft an abstract of a heap of title deeds. -La.v 
 
 ' "The book ought to be perused by all law students and articled clerks."— .ff e rf Tape. ^^^ 
 
 Second Edition, in crown 8vo, price 7s., cloth, 
 
 THE LAW RELATING TO CLUBS. 
 
 By the late JOHN WERTHEBIER, Barrister-at-Law. 
 Second Edition, by A. W. CHASTER, Barrister-at-Law. 
 
 '•A convenient handbook, drawn up with great 
 judgment and perspicuity." — Moruhig Pest. 
 
 " Both useful and interesting to those interested 
 in club management." — Laiu Times. 
 
 " Mr. Wertheimer's histor)- of the cases is com- 
 plete and well arranged." — Sai?i>tiay Ke7,ie7v. 
 
 " This is a ver>' neat little book on an interestins 
 subject. The law is accurately and well e.xpressed." 
 — J-.irw JojtJtial. 
 
 "This is a very handy and complete little work. 
 This excellent liit'le treatise should lie on the table 
 of everj- club." — Ttiiiip Court. 
 
 In 8vo, price 2s., sewed, r •' ' 
 
 TABLE of the FOREIGN MERCANTILE LAWS and CODES 
 
 in Force in the Princii)al States of EUROPE and AMERICA. By Charles 
 Lyox-Caen, Professeur agrege a la Faculte de Droit de Paris ; Professeur a 
 I'Ecole libre des Sciences politiques. Translated by Nai'OLEON Aroles, 
 Solicitor, Paris. 
 
 In Svo, price u. , sewed. 
 
 A GUIDE TO THE FRENCH LAWS OF 1889, ON NATION- 
 ALITY A\n MILITARY SERVICE, as aflecting British Subjects. By A. 
 Pavitt, Solicitor, Paris. 
 
 In oiie volume, demy Svo, price lOf. 6</., cloth, 
 
 PRINCIPLES OF THE LAW OF STOPPAGE IN TRANSITU, 
 
 RETENTION, and DELIYERY. By John Housto.v, of the Middle Temple, 
 Barrister-at-Law. 
 
 In Svo, price lo.f. , cloth, 
 
 THE TRIAL OF ADELAIDE BARTLETT FOR 
 
 MURDER ; Complete and lievised Report. Edited by Edward Beal, B.A., 
 of the Middle Temple, Barrister-at-Law. With a Preface by Edward Clarke, 
 Q.C., M.P. 
 
 In Svo, price ioj-. 6r/., cloth, 
 A REPORT OF THE CASE OF 
 
 THE QUEEN k, GURNEY AND OTHERS, 
 
 In the Court of Queen's Bench before the Lord Chief Justice CocKr.URN. With Intro- 
 duction, containing History of the Case, and Examination of the Cases at Law 
 and Equity applicable to it. By W, F. FiNLASON, Barrister-at-Law. 
 
 In royal Svo, price \os. 6d., cloth, 
 
 THE PRACTICE OF EQUITY BY WAY OF REVIVOR AUD SUPPLEMENT. 
 
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 33 
 
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 34 STEVENS d- HAYNES, BELL YARD, 7EAIPLE BAR. 
 
 (Stcbcns nub ^njjncs' ^rrics xtf Reprints of \\\z (Eadj) glt^jortcrs. 
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 " We have here 2i facsimile edition of Bellewe, substitute by carefully extracting and collecting all 
 
 and it is really the most beautiful and admirable ■ the cases he could find, and he did it in the most 
 
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 It belongs to the same class of works as the Year collection of cases of the reign of Richard II., 
 
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 superior to any of them, and is in this respect I Ages."— Zaw Tinu-s. 
 
 CUNNINGHAM'S REPORTS. 
 
 In 8vo, 1871, price 3/. 3^-., calf antique, 
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 Consideration of both Houses of Parliament. Third edition, with numerous 
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 Ihe instructive chapter which precedes the I peace and prosperity of every nation than good 
 
 cases, entitled A proposal for rendering the Laws laws and the due execution of them.' The historj- 
 
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 with words which ought, for the information of III. to 12 Hen. VIlI.— being near 200 years-and 
 
 every people, to be printed in letters of gold. They afterwards to the time of the author. "--Ca^w*/* 
 
 are as lo.Iows : Nothing conduces more to the I Law Journal.
 
 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 35 
 
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 SIR G. COOKE'S COMMON PLEAS REPORTS 
 
 IN THE REIGNS OF QUEEN ANNE, AND KINGS GEORGE I. and II. 
 
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 titles, with a tabfe of the principal matters. In one handsome volume. Svo. 1873. 
 
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 in one volume, uniform with the preceding volumes 
 of the series of Early Reports." — Canada Law 
 yonrnat. 
 
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 corrected edition peculiarly desirable, Messrs. 
 
 KELYNGE'S (W.) REPORTS. 
 
 In Svo, 1873, price 4/. 4^., calf antique, 
 KeLYNGe's (William) Reports of Cases in Chancery, the King's Bench, &c., from the 
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 King was Chancellor, and the Lords Raymond and Hardwicke were Chief 
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 goodservice rendered by Messrs. StevensandHa>'nes 
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 "We look upon this volume as one of ths most 
 important and valuable of the unique reprints of 
 Messrs. Stevens and Haynes. Little do we know 
 
 Alessrs. otevens anu nayncb, i^iiiic uw wc rvuv^.T ^.^,... ^. ^^....^ ,_.... .. . 
 
 of the mines of legal wealth that lie buried in the will find m this volume a complete jWf '"""("Ln 
 
 °!d law books. But a careful examination, either of | the law of high tre.-ison and proceedmgs in relation 
 
 the reports or of the treatise embodied in the volume j thereto."— Ca«a^a Law Journal. 
 now before us, will give the reader sonic idea of the
 
 36 STEVENS cr-- HAYNES, BELL YARD, TEMPLE BAA\ 
 
 Second Edition, in 8vo, price 26s., cloth, 
 A CONCISE TREATISE ON 
 
 PRIVATE INTERNATIONAL JURISPRUDENCE, 
 
 BASED OX TEE DECISIONS IN THE ENGLISH C OUR IS. 
 By JOHN ALDERSON FOOTE, 
 
 OF Lincoln's inn, barrister-at-la\v ; chancellor's legal medallist and senior whewell scholar 
 
 OF international law, CAMBRIDGE UNIVERSITY, 1873 ; SENIOR STUDENT IN JURISPRUDENCE 
 AND ROMAN LAW, INNS OF COURT EXAMINATION, HILARY T£^M, 1874. 
 
 C J /I 
 
 » ) I 
 
 "This worlc seems to us likely to prove offonslderable use to all English law^-ers who have to deal with 
 questions of private international law. Since the publication of Mr. Westlake's valuable treatise, twenty 
 years ago, the judicial decisions of English courts bearing upon different parts of this subject have greatly 
 increased in number, and it is full time that these decisions should be examined, and that the conclusions 
 to be deduced from them should be systematically set forth in a treatise. Moreover, Mr. Foote has doTie 
 this well." — Solicifors' Joitrnal. 
 
 " Mr. Foote has done his work very well, and the book will be useful to all who have to deal with the 
 class of cases in which English law alone is not sufficient to settle the question." — Saturday Rei'ietv, 
 March 8, 1879. 
 
 Ihe author's object has been to reduce into order the ma.ss of materials already accumulated in the 
 shape of explanation and actual decision on the interesting matter of which he treats ; and to construct a 
 framework of private international law, not from the ilicta of jurists so much as from judicial decisions in 
 English Courts which have superseded them. And it is here, in compiling and arranging in a concise 
 form this valuable material, that iSIr. Foote's wide range of knowledge and legal acumen bear snch good 
 fruit. As a guide and .-issistant to the student of international law, the whole treatise will be invaluable : 
 while a table of cases and a general index will enable him to find what he wants without trouble." — 
 Standard. 
 
 The recent decisions on points of international law (and there have been a large number since Westlake's 
 publication) have been well stated. So far as we have observed, no case of any importance has beeii 
 omitted, and the leading cases have been fully analysed. The author does not hesitate to criticise the 
 grounds of a decision when these appear to him to conflict with the proper rule of law. Most of his 
 criticisms seem to us very just. On the whole, we can recommend Mr. Foote's treatise as a useful 
 
 addition to our text-books, and we expect it will rapidly find its way into the hands of practising lawyers." 
 —The youriiitlofjurispnidemc and Scottish Lmv M,if;azinc. 
 
 Mr. Foote has evidently borne closely in mind the needs of Students of Jurisprudence as well as those 
 of the Practitioners. For both, the fact that his work is almast entirely one of Case-law will commend 
 it as one useful alike in Chambers and in Court."— /,rt7«. Masazine and Ki-iczv. 
 
 "Mr. Foote's book will be useful to the student One of the best points of Mr. Foote's book 
 
 IS the ' Continuous Summarj',' which occupies about thirty pages, and is divided into four part.s — Persons, 
 Property, Acts, and Procedure. Mr. Foote remarks that these summaries are not in any way intended as 
 an attempt at codification. However that may be, they are a digest which reflects high credit on the 
 author's assiduity and capacity. They are ' meant merely to guide the student ;' but they will do much 
 more than guide him. They will enable him to get such a grasp of the subject as will render the reading 
 cf the text easy and fruitful."— Z<iw Joitrnal. 
 
 "This book is well adapted to be used both as a text-book for students and a book of reference for 
 practising barristers."— ^ar Examination Journal. 
 
 "This is a book which supplies the want which has long been felt for a really good modern treatise on 
 Private International Law adapted to the ever>--day requirements of the EngUsh Practitioner. The 
 wtiole volume, although designed for the use of the practitioner, is so moderate in size— an octavo of 500 
 pages only-and the arrangement and development of the subject so well conceived and executed, that it 
 will amply repay perusal by those whose immediate object may be not the actual decisions of a knotty 
 point but the satisfactory disposal of an examination paper. "-OV"-'' «nd CamMdre Undtrgradvatei' 
 Journal, r r j s t. 
 
 "Since the publication, some twenty years ago, of Mr. Westlake's Treatise, Mr. Foote's book is, ir. 
 our opinion, the best work on private international law which has appeared in the English language. . . 
 ine work 1. executed with much ability, and will doubtless be found of great value by all pei^ns who 
 have to consider questions on private international law."-^M^»^«,«.
 
 STEVENS tSr- HAYNES, BELL YARD, TEMPLE BAR. 37 
 
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 38 
 
 STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Fifth Edition, revised and enlarged, 8vo., price 325. 7ief. 
 
 A TREATISE ON HINDU LAW AND USAGE. 
 
 !3y John D. Mayne, of the Inner Temple, Barrister-at-Law, Author of "A Treatise on 
 
 Damages," &c. 
 
 "A new work from the pen of so established an authority as Mr. Mayne cannot fail 
 to be welcome to the legal profession. In his present volume the late Officiating Advocate- 
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 and has produced a work of value alike to the practitioner at the Indian Bar, or at home, 
 in appeal cases, and to the scientific jurist. 
 
 " To all who, whether as practitioners or administrators, or as students of the science 
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 — Lazv Magazine and Revinv. ____^_ 
 
 In 8vo, 1877, price I5j-., cloth, 
 
 A DIGEST OF HINDU LAW, 
 
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 OF GOOD HOPE AND OF SOUTH AFRICA GENERALLY. With suitable 
 
 and copious Practical Forms, subjoined to, and illustrating the Practice of the 
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 HUGO 6R0TIUS, with Notes by Simon van Groenwegen van der Made, and 
 References to ^'an der Keesel's Theses and Schorer's Notes. Translated by 
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 In l2mo, price 15.?. ;/(V, boards, 
 
 SELECT THESES ON THE LAWS OF HOLLAND & 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 th; Law of Holland. By DiONYSius GODEFRIDUS 
 van der Kessel, Advocate, and Professor of the Civil and Modern Laws in the 
 Universities of Leyden. Translated from the original Latin by C. A. Lorknz, 
 of Lincoln's Inn, Barrister-at-Law. Second Edition, With a Biographical Notice 
 of the Author by Professor J. De Wai., of Leyden.
 
 STEVENS *J- HAYNES, BELL YARD, TEMPLE BAR. 39 
 
 THE 
 
 3$ar Examination !3[nnual 
 
 FOR 1894. 
 
 (In Continuation of the Bar Examination Journal.) 
 
 I 'lie 
 
 EXAMINATION PAPERS, 1893. 
 
 FOR Pass, Honors, and Barstow Scholarship. 
 RESULT OF EXAMINATIONS. 
 NAMES OF SUCCESSFUL CANDIDATES. 
 EXAMINATION REGULATIONS FOR 1894. 
 A GUIDE TO THE BAR. 
 
 LEADING DECISIONS AND STATUTES OF 1894. 
 NEW BOOKS AND NEW EDITIONS. 
 
 W. D. EDWARDS, LL.B., 
 
 OF lin'coln's inn, bakrister-at-law. 
 Now published, in 8vo, price l8i. each, cloth, 
 
 THE BAR EXAMINATION JOURNAL, VOLS. IV., V., 
 
 VI, Vn., VIIL, IX. & X. Containing the Examination Questions and Answers 
 from Easter Term, 1S78, to Hilary Term, 1892, with List of Successful Candidates 
 at each examination, Notes on the Law of Property, and a Synopsis of Recent Legis- 
 lation of importance to Students, and other information. 
 
 By A. D. TYSSEN and W. D. EDWARDS, Barristers-at-Law. 
 
 Fifth Edition. In 8vo, price 9s. cloth, 
 
 A SUMMARY OF JOINT STOCK COMPANIES' LAW. 
 
 Bv T. EUSTACE SMITH, 
 
 OK THE INNER TEMPLE, IlARRISTER-ATl-AW. 
 
 " The author of this hand-book tells us that, when " These pages give, in the words of the Preface. 
 
 an articled student reading for the final examina- 'as briefly and concisely as possible, a general 
 
 tion, he felt the want of such a work as that before , view both of the principles and practice of the law 
 
 us wherein could he found the main principles of ^ affecting companies.' The work is excellently 
 
 law relatin'T to joint-stock companies . . . Law I printed, and authorities are cited ; but in no case 
 
 students may well read it ; for Mr. Smith has very is the very language of the statutes copied. The 
 
 wisely been at the pains of giving his authority for ! plan is good, and shows both grasp and neatness, 
 
 all his statements of the law or of practice, as applied ' and, both amongst students and laymen, Mr. Smith's 
 
 to joint-stock company business usually transacted book ought to meet a ready sale."— Z<z7</ Journal. 
 
 in solicitors' chambers. In fact, Mr. Smith has : "The book is one from which we have derived 
 
 by his little book offered a fresh inducement to a large amount of valuable information, and we can 
 
 students to make themselves— at all events, to some heartily and conscientiously recommend it to our 
 
 extent— acqu.-iinted with company law as a separate readers."— C?-r/or<^ ani Cavtbrid^e Undfrgrad- 
 
 branch of study."— .i^aw 7Vw<r.r. vates Journal.
 
 40 
 
 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 In 8vo, Sixth Edition, price 95., cloth, 
 
 THE MARRIED WOMEN'S PROPERTY ACTS ; 
 
 1870, 1874, 1882 and 1884, 
 
 With Copious and Explanatory Notes, and an Appendix of the Acts 
 Relating to Married Women. 
 Bv Archibald Brown, M.A., Edinburgh and Oxon., and the Middle Temple, 
 Barrister-at-Law. Being the Sixth Edition of The iVrarried Women's Property 
 Acts. By the late J. R. Grifi-iths, B.A. Oxon., of Lincoln's Inn, Barnster- 
 at-Law. 
 
 "Upon the whole, we are of opinion that this is the best work upon the subject which has been issued 
 since the passing of the recent Act. Its position as a well-estabhshed manua of acknowledged worth gives 
 it at starting a considerable advantage over new books ; and this .idvanlage has been well maintained by 
 the intelligent treatment of the Editor."— .S'o//c/V<'r/ Journal. , , , ■ j • .u • 1 
 
 "The notes are full, but anything rather than tedious readthg, and the law cont.-iined in them is good, 
 and verified by reported cases. ... A distinct featu-e of the work is us copious index practically a 
 summary of the marginal headings of the various paragraphs in the body of the text. 1 his book is worthy 
 of all success." — Law Magazine. 
 
 In 8vo, price I2J., cloth, 
 
 THE LAW OF NEGLIGENCE. 
 
 SECOND EDITION. 
 
 By Robert Campbell, of Lincoln's Inn, Barrister-at-Law, and Advocate 
 of the Scotch Bar. 
 
 " No less an authority than the late Mr. Justice new edition brought down to date. It is indeed an 
 Willes, in his judgment in Opf-cnheiiit v. ]Vhite able and scholarly treatise on a somewhat difficult 
 Lien 'Hotel Co., "characterised Mr. Campbell's branch of law, in the treatment of which the 
 ' Law of Negligence ' as a ' very good book;' and author's knowledge of Roman and Scotch Juris- 
 since very good books are by no means plentiful, prudence has stood him in good ste.id. We con- 
 when compared with the numbers of indifferent fidently recommend it alike to the student and the 
 ones which annually issue from the press, we think practitioner."— i-aw Magazine. 
 the profession will be thankful to the author of this 
 
 T t. n — -^f- 
 
 In royal 8vo, 
 
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 FORMS. Arranged in Alphabetical order with Subdivisions of an Analytical 
 Nature ; together with an Appendix containing an Ab.stract of the Stamp Act, 1S70, 
 with a Schedule of Duties ; the Regulations relative to, and the Stamp Duties pay- 
 able on, Probates of Wills, Letters of Administration, Legacies, and Successions. 
 By Walter Arthur Copinger, of the Middle Temple, Barrister-at-Law. 
 
 BIBLIOTHECA LEGUM. 
 
 In i2mo (nearly 400 pages), price 2s., cloth, 
 
 A CATALOGUE OF LAW BOOKS, including an the Reports 
 in the various Courts of England, Scotland, and Ireland ; with a Supplement to 
 December, 1884. By Henry G. Stevens and Robert W. Haynes, Law 
 Publishers. 
 
 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, arranged both in alpha- 
 
 BETICAL &- chronological ORDER. By Stevens & IIavnes, 
 
 Law Piiblisfia's.
 
 STEVENS &- HAYXES, BELL YARD, TEMPLE BAR. 41 
 
 Second Edition, much enlarged, in 8vo., price 20s., clolh. 
 
 CHAPTERS ON THE 
 
 LAW RELATING TO THE COLONIES. 
 
 To which are appended Topical Inuexks of Casks decided in the Privy Councii. 
 on Appeal from the Colonies, Channel Islands and the Isle of Man, and of 
 Cases relating to the Colonies decided in the English Courts otherwise than mi 
 Appeal from the Colonies. 
 
 By CHARLES JAMES TARRING, M.A., 
 
 ASSISTANT Jl IHJE OF II.D.M. St IKHMF. COSSII.AR (Olur, <:0NST.\NTIN01'l.F:, AM) M.m's CONSLl. ; 
 MTII'JI- 01 "11.1 1-^H CDNSUtAK J CKISOICTKlN IN I IIB EAST," "A TIKKISH IIKAMMAR," ETC. 
 
 CONTENTS. 
 
 Table of Casci Cilt-il. Chapter IV.— 'I'lie Judiciary and the Bar. 
 
 T;il>l<; of . Statutes Cited. t.'hapier V. - Appeals from the Colonies. 
 
 Chapter VI. Imperial Statutes relating to the 
 Colonies. 
 .Section i. — Inipeiial Statutes relating to tl.e 
 
 Colonies in general. 
 Section 2.— Subjects of Imperial Legislation 
 relating to the Colonies in 
 general. 
 Section j. — Imperial St.itutes relating to par- 
 ticular Colonies. 
 
 Introductory. — Definition of a Colony. 
 Chapter I. — The laws to which the Colonics are 
 subject. 
 Section i. In newly-tiiscovered countries. 
 Section a.- -In coniiuered or cedett countries. 
 Section 3. — Generally. 
 Chapter II. — The Executive. 
 Section i. — The Governor. 
 
 A. — Nature of his oflTice, power, anil 
 — — ( I duties 
 
 C \ ^i — Liability to aftswer for his acts. 
 • " - i I'.-Onillj-. - ' '. ' 
 
 1. <», — In the courts of his Govern- 
 ment. 
 ^.- In the Knglish courts. 
 3. —For what causes of action. 
 II. Criminally. 
 Section 2. — The Kxecutive Council. 
 Chapter 1 11.^ — The Legislative Power. 
 .Section i. — Cla.ssincation of colonies. 
 Section 2. — Colonies with rcspoiisilje govern- 
 ment. 
 Section 3. -Privilegts and powers of ooloninl 
 Lcgislnfivc As^e^bliec. 
 
 Topi'.il Index of Casts decided in the Privy 
 • Council on appeal from the Colonies, the 
 
 Channel Islands, .ind the Isle of Man. 
 Index of some Topics of English Law dealt with 
 
 in the Cases. 
 Topical Index of Cases relating to the Colonies 
 
 decided in the KnglLsh Courts otherwise than un 
 
 appeal from the Colonies. 
 Index of Names of C.ises. 
 
 .Nppendix I. 
 11. 
 
 (iKNKitAi. Index. 
 
 In Svo, price IOj., cluth, 
 
 THE TAXATION OF COSTS IN THE CROWN OFFICE. 
 
 COMrRISI.NC. .\ COI.I.Et I'lO.N OF 
 
 BILLS OF COSTS IN THE VARIOUS MATTERS TAXABLE IN THAT OFFICE; 
 
 I.N'CLUIMNG 
 
 CO.ST.S UPON Till-: PROSECUTION OF FRAUDULENT BANKRUPTS, 
 , AND ON APPEALS FROM INFERIOR COURTS ; 
 
 TOGETHER WITH 
 
 A TABLE OF COURT FEES, 
 AND A SCALE OF COSTS USUALLY ALLOWED TO SOLICITORS, ON THE TAXATION 
 
 of costs on the crown side of the queen's bench division 
 of the high court of justice. 
 
 By FREDK. H. short, 
 
 CHIEF CLERK IK lllE CKOWN OFFICE. 
 
 " This is decidedly a iisaful work on the subject of those casts which are liable to be taxed before the 
 Queeo'j Coromer and Attorney (for which latter name that of ' Solicitor ' might now well be substituted), or 
 before the master of the Crown Office ; in fact, such a book is almost indispensable when preparing costs 
 for taxation in the Crown Office, or when taxing an opponent's costs. Country solicitors will hnd the scale 
 relating to bankruptcy prosecutions of especial u.se, as such costs are taxed in the Crown Office. 1 he general 
 observations ' constitute a useful feature in this manual." — Law Times. r u- 1 
 
 "The recent revision of the old scale of costs Ln the Crown Office renders the appearance of this work 
 particularly opportune, and it cannot fail to be welcomed by practitioners, ilr. Short gives, in the nist 
 place, a scalcof costs usually allowed tjo solicitors on the taxation of costs in the Crown Office, and then 
 bills of costs in various matters. These are well arranged and clearly printed. -i>olicitoys Journal.
 
 42 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Just Published, in 8vo, price "js. 6d., cloth, 
 
 BRITISH CONSULAR JURISDICTION IN THE EAST, 
 
 WITH TOPICAL INDICES OF CASES ON APPEAL FROM, AND 
 
 RELATING TO, CONSULAR COURTS AND CONSULS; 
 
 Also a Collection of Statutes concerning Consuls. 
 
 By C. J. TARRING, M.A., 
 
 ASSISTANT-JUDGE OF H.B.M. SUPREME CONSULAR COURT FOR THE LEVANT. 
 
 In one volume, 8vo, price 85. 6d., cloth, 
 A COMPLETE TREATISE UPON THE 
 
 NEW LAW OF PATENTS, DESIGNS, & TRADE MARKS, 
 
 CONSISTING OF THE PATENTS, DESIGNS, AND TRADE MARKS ACT, 
 
 1883, WITH THE RULES AND FORMS, FULLY ANNOTATED 
 
 WITH CASES, &c. 
 
 And a Statement of the Principles of the Law upon those subjects, with a Time Table 
 
 and Copious Index. 
 
 By EDWARD MORTON DANIEL, 
 
 OF LIN'COLN S INN, BARRISTER-AT-LAW, ASSOCIATE OF THE INSTITUTE OF PATENT AGENTS. 
 
 In 8vo, price Sj. , 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. 
 
 Second Edition, in one volume, 8vo, price i6j., cloth, 
 A CONCISE TREATISE 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-LA\V. 
 
 ''The work is decidedly valuable."— Z«jt< Times. 
 .,,1 ^''' P''"".'"S h'^"^ adhered to the plan of printing the Acts in an appendix, and makinsj his book a 
 7^^l^% ^l f °" * case-law thereon. The cases have evidently been investigated with care and 
 digested with clearness and intellectuality."— Z.aw Journal. 
 
 In 8vo, price is., sewed, 
 AN ESSAY ON THE 
 
 ABOLITION OF CAPITAL PUNISHMENT. 
 
 Embracmg more pai-ticularly an Enunciation avd Analysis of the Principles of La-w as 
 
 afphcablc to Criminals of the Highest Degree of Guilt. 
 
 By WALTER ARTHUR COPINGER, 
 
 ^'^ THE MIDDLE TEMPLE, ESQ., BARRISTER-AT-LAW. 
 
 Sixth Edition, in 8vo, price ^is. 6d., cloth, 
 
 THE INDIAN CONTRACT ACT, No. IX., of 1872. 
 
 TOGETHER 
 
 WITH AN INTRODUCTION AND EXPLANATORY NOTES, TABLE OF 
 
 CONTENTS, APPENDIX, AND INDEX. 
 
 By H. S. CUNNINGHAM and H. H. SHEPHERD 
 
 BARRISTERS- AT-LAW.
 
 STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. 43 
 
 Second Edition, in 8vo, price 15.^., cloth, 
 
 LEADING CASES and OPINIONS on INTERNATIONAL LAW 
 
 COLLECTED AND DIGESTED FROM 
 
 ENGLISH AND FOREIGN REPORTS, OFFICIAL DOCUMENTS, 
 PARLIAMENTARY PAPERS, and other Sources. 
 
 With NOTES and EXCURSUS, Containing the Views of the Text Writers on 
 the Topics referred to, together with Supplementary Cases, Treaties, and Statutes ; 
 and Embodying an Account of some of the more important International Trans- 
 actions and Controversies. 
 
 By PITT COBBETT, M.A., D.C.L., 
 
 OF GRAV'S INN', UARKISTER-AT-LAW, PROFESSOR OF LAW, UNIVERSITY OF SVPNEV, N.S.W. 
 
 "The book is well arranged, the materials well | "The notes are concisely written and trust- 
 selected, and the comments to the point. Much I ""^"•^V; • • • ■ T'»« reader willlearn from them a 
 . , . r , „ - great deal on the subject, and the book as a 
 will be found m small sp.-ice in this book, —i^a'.u | whole seems a convenient introduction to fuller and 
 Journal. more systematic works." — Oxford Magazine. 
 
 Second Edition, in royal 8vo. Iioo pages, price 455-., cloth, 
 
 STORY'S COMMENTARIES ON EQUITY 
 JURISPRUDENCE. 
 
 Second English Edition, from the Tuielfth American Edition. 
 Bv W. E. GRIGSBY, LL.D. (Lond.), D.C.L. (Oxon.), 
 
 AND OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 has been, rendered more petfect, by additional 
 indices." — Laiu Times. 
 
 " It is high testimony to the reputation of Story, 
 and to the editorship of Dr. flrigsby, that another 
 edition should have been called for. . . . 'I'he work 
 
 Second Edition, in 8vo, price 8^., cloth, 
 
 THE PARTITION ACTS, 1868 & 1876. 
 
 A Manual of the Law of Partition and of Sale, in Lieu of Partition. With the Decided 
 Cases, and an Appendi.x containing Judgments and Orders. By W. Gregory 
 Walker, B.A., of Lincoln's Inn, l>arrister-at-Law. 
 
 has carefully brought together the cases, and dis- 
 cussed the difficulties arising upon the language of 
 the different provisions." — Solicitors' J ournai. 
 
 "This is a very good manual — practical, clearly 
 written, and complete. The subject lends itself 
 well to the mode of treatment adopted by Mr. 
 Walker, and in his notes to the various sections he 
 
 Second Edition, in 8vo, price 22s. cloth, 
 A TREATISE ON THE 
 
 LAW AND PRACTICE RELATING TO INFANTS. 
 
 By ARCHIBALD H. SIMPSON, M.A., 
 
 OF Lincoln's inn, barrister-at-law, and fellow ok Christ's college, Cambridge. 
 SECOND EDITION. By E. J. Elgood, B.C.L., M.A., of Lincoln's Inn, 
 
 Barrister-at-Law. 
 "Mr. Simpson's book comprises the whole of the yet in comparatively little space. The result is 
 law relating to infants, both as regards their per- due mainly to the businesslike condensation of his 
 sons and their property, and we have not observed style. Fulness, however, has by no means been 
 any very important omissions. The author has sacrificed to brevity, and, so far as we have been 
 evidently expended much trouble and care upon able to test it, the work omits no point of any im- 
 ■ ■ ■ • ■ ■ • • portance, from the earliest cases to the last. Jn 
 
 the essential qualities of clearness, completeness, 
 and orderly arrangement it leaves nothing to be 
 desired. 
 
 " Lawyers in doubt on any point of law or_ prac- 
 tice will find the information they require, if it can 
 
 his work, and has brought together, in a concise 
 and convenient form, the law upon the subject down 
 to the present time." — Solicitor^ yoiirnal. 
 
 " 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 legil principles."— Zaw \ be found at all, in Mr. Simpson's book, and a 
 
 Times. writer of whom this can be said may congratulate 
 
 "Mr. Simpson has arranged the whole of the Law himself on having achieved a considerable success." 
 
 relating to Infants with much fulness of detail, and 1 —Law Magazine, February, 1876.
 
 u 
 
 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 In one volume, royal 8vo, 1877, price 30^-., cloth, 
 
 THE DOCTRINES & PRINCIPLES OF 
 THE LAW OF INJUNCTIONS. 
 
 By WILLIAM JOYCE, 
 
 OF LINCOLN'S INN, U A K K I S T E R - A T - L A \V. 
 
 • r Jpi'^^,' ^'lio^e learned and exhaustive work on 'The Law and Practice of Injunctions' ha<; 
 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 abstract rather than its concrete form, as few cases as pof-sible 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 
 thegreatestassistanceahke to the .Student-who wants to grasp principles freed from their superincum- 
 bent details— and to the practitioner, who wants to refresh his memory on points of doctrine amidst the 
 oppressive details of professional work. "—La^v Magazine and Kei'inv 
 
 BY THE SA}fE AUTHOR. 
 In two volumes, rcyal Svo, 1S72, price 70-., clolh, 
 
 THE LAW & PRACTICE OF INJUNCTIONS. 
 
 i;mbracjng 
 
 ALL THE SUBJECTS IN WHICH COURTS OF EQUITY 
 
 AND COMMON LAW HAVE JURISDICTION. 
 
 By WILLIAM JOYCE, 
 
 01- LBJCOLI^'?^ INN, «ARRiS-n^iAT-U.\\^. 
 
 REVIEWS. 
 
 "A work which aims at being so .ibsolutelv 
 
 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 at being This work Ls, therefore 
 
 eminent y a work for the practitioner, bdng fuhof 
 practical utility in every page, and ever^ sentence, 
 01 u. . . . . He have to congratulate the oro- 
 fession on this new acquisition to a digest of the 
 law, and the author on his production of a work of 
 
 " Mr. Joyce has produced, not a treatise but a 
 
 and teice Tr"'""^' ^V""« -f '^'e Law 
 ^mmon la^! "' ^"J"""'°"^ both in equity and 
 
 Cour^ts" ri/!' ^^''°'^^ '° '^^ P^^"'c« of the 
 Udinicai ^,J, ^" """r"^ of valuable and 
 
 iccnmcal matter nowhere else collected. 
 
 '' 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." — Law Jcurnal. 
 
 " He does not attempt to go ao inch beyond that 
 for which he has express written authority ; he al- 
 lows the ca.ses to speak, and does not speak for them. 
 
 " 1 he 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 160, whilst the 
 index IS, we think, the most elaborate we have ever 
 seen — occupying nearly 200 pages. The work is 
 probably entirely exhaustive.'"— Za«> Times. 
 
 com5eir:nt;sSr:L\-::b:.v°ii\:r 1 "' "^rr °' '^•^^•<^"''°"' ^^ - -^■-■^- --''• »» - => 
 
 supersede all other works on the%ubieA Vh . ^"'^ '^^ ''T'^^ °f granting injunctions. It must 
 value. We know of no book as snUnhU t. erse statement of the practice will be found of incalculable 
 
 law friends as Mr. JoyceTexhluSvorV"^?^-''^^^^^^ "^ '^^ '^* of injunctions to our comm„n 
 
 and Equity Bars. Mr. lovce's^re-^, vvW ,Vf ^^'^^ indispensable to members of the Common I..->w 
 
 'ndex. His index is veryVull all^we 1 nrr'Z'^H '^%t>~";^V K"''°i!-' ^ ^'>; ""'^'^'^ accompanied by a good 
 a-s a standard text-book, and /I text booT nf f^ -^^ that this work is destined to take [ts place 
 
 deserves great credit for the te^ ^re„ 1 ? Particular subject of which it treats. The author 
 
 acquitted themselves in a manner d^se^lnl of th!^\Jl''°''*"* upon it. The publishers, as usual, have 
 — __ ^"^^ '"§ "f "^« '"gh reputation they \x&t."— Canada Law Joui^tal 
 
 %
 
 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 45 
 
 Third Edition, in 8vo, price 20.>-. , cloth, 
 A TREATISE UPON 
 
 THE LAW OF EXTRADITION, 
 
 WITH THE CONVENTIONS UPON THE SUBJECT EXISTING BETWEEN 
 ENGLAND AND FOREIGN NATIONS, 
 
 AND THE CASES DECIDED THEREON. 
 
 By Sir EDWARD CLARKE, 
 
 i>K Lincoln's inn, s.-c;., (>.c., m.c. 
 
 '• Mr. Clarke's accurate and -.cnsible book. !•« the wants to luarn the principles anJ practice of the 
 
 best authority to which the Knglish reader can law of extradition will lie greatly helfied by Mr. 
 
 turn upon the subject of Extradition.'"— -S"a/«r</</_)' Clarke. Lawyers vlio have extradition busiiies.s 
 
 Rnitw. will (ind this voJuiiu:. -in e.\cx'llent hook of reference. 
 
 "i'he opinion we expressed of »he merits of this Magistrates who lir.ve to administer the extradition 
 
 work when it first appeared has been fully justified law will b: greatly assisted by a careful pj-rusal of 
 
 liy the reputation it has gained. It is seldom we 'Clarke upon Kxlradition." This may be called a 
 come across a book possessiniJ »o much interest to ■ warm conimend;uion, but those who have read the 
 
 the general readerandat the s.-imetinie furni-hlng so Ixjok will not say it is unmerited." — I.iuv Journal. 
 
 u»cUil a guide to the lawyer." — Solicitors Jflurnnl. Thk Ti.mks of September 7, 1874, in a long 
 
 "I'he appearance of a second edition of this arliilc upon " Kxtradition 'I'reaties," makes con- 
 treatise does not surprise tw. It is a ascftd book, sidenable u.se of thin work and writes of it a.s " Mr. 
 well arranged and well written. A student who Clnrkc's nsr/til tl'drk- on Kxtrailitioii." 
 
 In 8vo, price 2.r. 6</. , cloth, 
 
 TABLES OF STAMP DUTIES 
 
 FROM 1 81 5 ix> 1878. 
 By WALTER ARTHUR COPINGER, 
 
 or THE MIDDLE TEMl'LE, KSOIIKK. ll.AHRISl EK- A T-L AW : AlTMdK nl "lllE L.WV OK COl'VKICHT IN 
 UORKS OF I ITEKATI KE AND AHP," "iMiKX 1 O IHKt EliEN IS I .\ I i i.V Vl-.VAM I.Si;," " TITLK HEEDS," &C. 
 
 *' We think (his little book ought to find its way 
 into a good many chambers and offices."— .So//- 
 citort Jourtuil. 
 
 ■' This book, or at least one containing tlie same 
 amount of valuable and well-arranged information, 
 nhould find a pl.ice in every Solicitor's oflice. It is 
 o( especial value when examining the aljstract of a 
 
 large numlierofold title-deeds."— /,/?7(< Tivifs. 
 
 " His Tnl<lrsi\f Stitwft hulirs, front 1815 to 1878, 
 have alrc^idy l)een tested in Chambers, and being 
 now published, will materi.illy lighten ihe labours 
 of the profes.»ion in a tedious department, j-et one re- 
 quiring great care."— /.^w Magazine and li,-.-iin\ 
 
 In one volume, 8vo, price 14J., cloth, 
 
 TITLE DEEDS: 
 
 THEIR CUSTODY, INSPECTION. AND PRODUCTION. AT LAW, IN 
 EQUITY, AND IN MATTERS OF CONVEYANCING, 
 
 Including Covenants for the rrodiictionof Deeds and Attested Gopies ; with an Api)endix 
 of I'recedents, the \'endor and Purchaser .'Vet, 1874, &.c., isic, is.c. IJy U ai.tkr 
 Arthur Coimnckr, of the Middle Temple, Harrister-at-Law ; Author of " The 
 Law of Copyright" and " Index to Precedents in Conveyancing." 
 
 "The literary execution of the work is goo<l here. Mr. Copinger has supplied a much-felt want 
 
 enough to invite quoMtioii, but the volume is not by the compilation of this volume. We have not 
 
 large, and we content ourselves with recommending space to go into the details of the book ; it appears 
 
 it to the profession." — Law Times. well arranged, clearly written, and fully elaborated. 
 
 '■ A really good treatise on this subject must be NV'ilh these few remarks we recommend his volume 
 
 essential to the lawyer : and this is what we have to our readers." — La7v yoiirnal. 
 
 Third Edition, in 8vo, consideraMv enlarged, price 36^., cloth, 
 
 THE LAW OF COPYRIGHT 
 
 In Works of Literature and Art; inchiding that of the Drama, Music, Engraving, 
 Sculpture, Painting, Photography, and Ornamental and Useful Designs ; together 
 with International and Foreign Cop)Tight, with the Statutes Relating thereto, and 
 References to the English and American Decisions. By Walter Arthi'R 
 CoPiNdKR, of the .Middle Temple, Barrister-at-Law. 
 
 "Mr. Copinger'.s book is very comprehensive, merits which will, doubtless, lead to the placing of 
 
 dealing with every branch of his subject, and even this edition on the shelves of the meml»ers of the 
 
 extending to copyTight in foreign countrie-:. So far profession whose business is concerned with copy- 
 
 .-»« we liave examined, we have found all the recent right ; and deservedly, for the book is one of cjn- 
 
 authorities noted up with scrupulous care, and siderable value." — Solicitors' yournal. 
 
 there is an unusually good index. These are '
 
 46 STEVENS &^ HAYNES^BELL^YA RD, TEMPLE BAR. 
 
 Third Edition, in One large Volume, 8vo, price 32.^., cloth, 
 
 A MAGISTERIAL m POLICE GUIDE: 
 
 BEING THE LAW 
 
 RELATING TO THE 
 
 PROCEDURE, JURISDICTION, and DUTIES OF MAGISTRATES 
 ^^ , J ^^^ 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 THE STAFFORDSHIRE VOTTERXES ; AND 
 
 TEMPLE CHEVALIER MARTIN, 
 
 ^UT,... riFRK TO THE MAGISTRATES AT LAMBETH I'OLICE COURT, LONDON ; 
 AUTHOR Tk-'t^WO "maintenance AND DESERTION," "THE NEW FORMULIST, ETC. 
 
 Third Edition. Including the Session 52 & S3 Vict., and the CASES bEClDED in the 
 Superior Courts to the End of the Year 1889, revised and enlarged. 
 
 By temple chevalier MARTIN. 
 
 "A second edition has appeared of Messrs. Greenwood and Martin's valuable and 
 comprehen^ve mSsterial and police Guide, a book which Justices of the peace should lake 
 care to include in their Libraries."— 5,7/«rfl'<7ji?^t7tt<.. ^j . , 
 
 " Hence it is that we rarely light upon a work which commands our confidence, not merely 
 bv us research but also bv its grasp of the subject of which it treats The volume before us 
 fs^one of the h^ppy few of' this latter class, and ,t is on this account that the pubhc favour wil 
 cert linlv wait i.pon it. We are moreover convinced that no effort has l^en spared by its 
 authors to render it a thoroughly efficient and trustworthy guide. ■■—^<7u; Journal. _ 
 
 "Magistrates will find a valuable handbook in Messrs. Graeowood and Martin s 
 'Magistertal and Police Guide,' of which a fresh Edition has just been published. -The 
 
 """Avery valuable introduction, treating of proceedings before Magistrates and largely of the 
 Summary lurisdiction Act, is in itself a treatise wliich will repay perusal. We expres.<.ed our 
 high opinion of the Guide when it first appeared, mid llie favourable impression then produced 
 is increased by our examination of this Second Ediiion. '—Lauj 'I imes. 
 
 " 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. — 
 La-ii) 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." — Soliei tors' Journal. 
 
 " The Ma^is/ericjl 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. 7t oug/ii to be in the hands of all who, as ptagistrates or 
 otherwise, liave authority in matters 0/ police." — Daily A'ru<s. . ,, 
 
 " T/iis -li'ork is eviincntly practical, and supplies a real -aaut. It plainly aiid concisely 
 states the lazo on all points upon -.i'hich Magistrates are called upon to adjudicate, syste- 
 matically arranged, so as to be easy of reference. It ought to find a place on evciy Justices 
 table, andu<e cannot but think that its usefulness u>ill speedily ensure for it as large a sate 
 as its merits desei-ve.''^ — Midland Counties Herald. 
 
 •• The exceedingly arduous task of collecting together all the enactments on the subject 
 has been ably and elfficiently performed, and the arrangement is so methodical and precise 
 that one is able to lay a finger on a Section of an Act almost in a momenL It is wonderful 
 what a mass of information is comprised in so comparatively small a space. We have much 
 pleasure in recommending the volume not only to our professional, but also to our 
 general readers ; nothing can be more useful to the public than an acquaintance with the 
 outlines of magisterial jurisdiction and procedure." — Sheffield Post.
 
 STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. 47 
 
 In one thick volume, Svo, price 32J-., 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, 1868 ; with Notes of Cases on all the Sections, brought down to the end of the 
 year 1S68 ; together with an Appendix giving all the other material Acts relating 
 to Railways, and the Standing Orders of tlie Houses of Lords and Commons ; 
 and a copious Index. By Henry Godei-roi, of Lincoln's Inn, and John 
 SuoRTT, of the Middle Temple, Barristers-at-Law, 
 
 In a handy volume, crown Svo, 1870, price lOJ. 6^/., 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. 
 
 In crown 8v6, price 4^., cloth, 
 A HANDBOOK OF THE 
 
 LAW OF PARLIAMENTARY REGISTRATION. 
 
 WITH AN APPENDIX OF STATUTES AND FULL INDEX. 
 By J. R. SEAGER, Registration Agent. 
 
 In Svo, price 5.C, cloth, 
 
 THE LAW OF PROMOTERS OF PUBLIC COMPANIES. 
 
 By NEWMAN WATTS, 
 
 OF LIN'COLN's inn, BARRISTER-AT-LAW. 
 
 " Some recent cases in our law courts, which at " Mr. Watts has brought together all the lead- 
 the time attracted much public notice, have demon- ' ing decisions relating to promoters and directors, 
 Ftrated the want of some clear and concise exposi- ' and has arranged the information in a very satisfac- 
 tion of the powers and liabilities of promoters, and : tory manner, so as to readily show the rights of 
 this task has been ably performed by Mr. Newman \ different parties and the steps which can Ije legally 
 Watts." — Investor's Guardian. j taken by promoters to further interests of new com- 
 
 i panies." — Daily Chronicle. 
 
 Second Edition, in One Vol., Svo, price I2s., cloth, 
 
 A COMPENDIUM OF ROMAN LAW, 
 
 Founded on the Institutes of Justinian ; together with Examination Questions 
 Set in the University and Bar Examinations (with Solutions), and Definitions cf 
 Leading Terms in the Words of the Principal Authorities. Second Edition. By 
 Gordon Campbell, of the Inner Temple, M.A., late Scholar of Exeter College, 
 Oxford ; M.A., LL.D., Trinity College, Cambridge ; Author of "An Analysis of 
 Austin's Jurisprudence, or the Philosophy of Positive Law." 
 
 In Svo, price 7^. 6d., cloth, 
 
 TITLES TO MINES IF THE UNITED STATES, 
 
 \VITH THE 
 
 STATUTES AND REFERENCES TO THE DECISIONS 
 OF THE COURTS RELATING THERETO. 
 
 By W. a. HARRIS, B.A. Oxon., 
 
 OF LINXOLN'S IN'N, BARRISTER-AT-LAW ; AXD OF THE AMERICAN BAR,
 
 43 
 
 STEVENS a' HAYNES, BELL YARD, TEAfPLE BAR. 
 
 INDEX 
 
 To the Names of AiUhars and Editors of Works enumerated in this Catalogue. 
 
 Aldrbd (P. F.), page 21. 
 
 Argles (N.), 32. 
 
 Attenborouoh (C. L,^, 27. 
 
 ISaldwin (E. T.), 15- 
 
 Banning (H. T.), 42 
 
 ]'.EAL (E.), 32. 
 
 Bellewe (R.)) 34- 
 
 Beven (T.) 14. 
 
 ]!lyth{E. E.), 22. 
 
 Brice (Seward), 9, 16. 
 
 Brooke (Sir R.), 35- 
 
 P.ROOKS (W. J.), 13. 
 
 Brown (Archibald), 20, 22, 26, 33. 40. 
 
 Browne (J. H. Balfour), 19. 
 
 Buchanan (J.), 38- 
 
 Buckley (H. B.), i7- 
 
 Bucknill (T. T.), 34) 35- 
 
 Campbell (Gordon), 47. 
 
 Campbell (Robert), 9, 40. 
 
 Carmichael (C. H. E.), 21. 
 
 CixiL (Lord R.), h- 
 
 Chaster (A. W.), 32. 
 
 Clarke (Edward), 45. 
 
 CoBBETT (Pitt), 43. 
 
 COGHLAN (W. M.), 28. 
 
 Cooke (Sir G.), 35- 
 CooKE (Hugh), id. 
 CopiNGER (W. A.), 40, 42, 45. 
 Corner (R. J.), 10. 
 Craies (W. F.). 6, 9. 
 Cunningham (IT. S.), 38, 42, 
 Cunningham (John), 7. 
 Cunningham (T.), 34. 
 Daniel (E. M.), 42. 
 Darling (C. J.), 18. 
 Deane (H. C), 23. 
 De Wal(J.), 38, 
 Duncan (J. A.), 33. 
 Edwards (W. D.), 16, 39. 
 Elgood (E. J.), 6, 18, 43. 
 Elliott (G.), 14. 
 Emden (A.), 8, II. 
 Eversley (W. P.), 9. 
 FiNLASON (W. F.), 32. 
 l'OA(E.), II. 
 
 FooTE (J. Alderson), 36. 
 Forbes (U. A.), 18. 
 Forsyth (W.), 14. 
 Frost (R.), 12. 
 Gibes (F. W.), 10. 
 Godefroi (H.), 47. 
 Greenwood (H. C.), 46. 
 Griffiths (J. R.), 40. 
 Grigsby (\V. E.). 43. 
 GuoTius (Hugo), 38. 
 
 nALL(R. G.), 30. 
 
 Hanson (A.), 10. 
 
 Uardcastle (H.), 9, 33. 
 
 Harris (Seymour F.), 20, 27. 
 
 Harris (W. A.), 47. 
 
 Harrison (J. C). 23. 
 
 Harwood (R. G.), 10. 
 
 Hazlitt (W.), 29.' 
 
 London: URAnr.vRv. agnew, & 
 
 HiGGINS (C), 30. 
 
 Houston (J.), 32. 
 
 Hudson (A. A.), 12. 
 
 Hurst (J.), 11. 
 
 Indermaur (John), 24, 25, 28. 
 
 Jones (E.), 47. ' Joyce (W.), 44. 
 
 Kay (Joseph), 17. 
 
 Kelke(\V. H.), 6. 
 
 Kelyng (Sir J.), 35. 
 
 Kelyngk (\V."), 35. 
 
 KoTZE (J. G.), 38. 
 
 Li.oYD (Eyre), 13. 
 
 Lorenz (C. a.), 38. 
 
 Loveland (R. L.), 30, 34, 35. 
 
 Maasdorp (A. F. S.), 38. 
 
 Macaskie (S. C), 7. 
 
 Mansfield (Hon. J. W.), 17. 
 
 March (John), 35. 
 
 Marcv (G. N.), 26. 
 
 Martln (Temple C), 7, 46. 
 
 Mattinson (M. W. ), 7. 
 . May (H. \V.), 29. 
 
 Mayne (John D.), 31, 38. 
 
 Meli.or (F. H.), 10. 
 , Men7.ies(W.), 38. 
 
 Moore (S.A.), 30. 
 
 O'Malley (E. L.), 33. 
 
 I'avitt (A.), 32. 
 
 Peii.e (C. J.), 7. 
 
 PEMr.FRTON (L. L.), 18, 32. 
 
 PiiiPsoN (S. L.), 20. 
 
 Porter (I. B.), 6. 
 
 Reillv (F. S.), 29. 
 
 Ringwood (R.), 13, 15, 29. 
 ' Sai.kowski (C), 14. 
 
 Salmond (J. \V.), 13. 
 
 Savigny (F. C. Von), 20. 
 j Scott (C. E.), 32. 
 i Seager (T. R.), 47. 
 ! Short (F. H.), id, 41. 
 : Shortt (John), 47. 
 
 Shower "(Sir B.), 34. 
 , Simpson (A. H.), 43. 
 
 Slater (J.), 7. 
 i Smith (Ei'stace), 23, 39. 
 
 Smith (F.J. ), 6. 
 
 Smith (Lu'mi.ey), 31. 
 ; Snell(E. H. T.), 22. 
 
 SlORY, 43. 
 
 Tarring (C. J.), 26, 41, 42. 
 
 Taswell Langmead, 2I. 
 
 Thomas (Ernest C), 28. 
 
 Tyssen (A. D.), 39. 
 
 Van der Keesel (D. G.), 38. 
 
 Van Leeuwen, 38. Van Zyl, 3S. 
 
 Waite (\V. T.), 22. 
 
 Walker (W. G.), 6, 18, 43, 
 
 Watts (C. N.), 47. 
 
 Wertheimer (J.), 32. 
 
 Whiteford (F. M.), 20. 
 
 Whitfield (E. E.), 14. 
 
 Williams (S. E.), 7. 
 
 Worth iNGTON (S. W^), 29. 
 
 PRINTERS, WHITEFRIARS, E.C
 
 Cataloiueof New Law Works maybe obtainedJratU upon applioatl on to S.dH. ] 
 
 STEVENS AND HAYNE S' LAW PUBLICATIONS. , 
 
 Second Edition, in Svo,i)ricelOs.M^dolh. 1 
 
 OUTLINES OF THE LAW OF TORTS. By Richard Ring. 
 
 ^^.^^K^tMi ^^^;^73fe,^-C;wS. clot,, 
 
 HARDCASTLE'S TREATISE ON THE CONSTRUCTION 
 
 ^^i^D EFFECT OF OTA'OT^ With Appendices. Secon.l Edition. By W. F. 
 
 Ckaies, of the Inner Temple, Barnster-at-1 aw. 
 
 Second tdilion, in Svo, price 16s. cloth, ^,^^^^^„ _ ,__ 
 
 A roxCTSR TREATISE ON THE STATUTE^ LAW 
 
 ^ (5f THE LIMITAT^NS uVaCT With an Appendix of Statutes. EeferencM 
 
 to English, Irish, and American Cases, and to the French Code. By H. T. 
 Banning, M.A., Barrister-at-Law. • „r. / /j. 
 
 Seco7id Edition, m Svo, vnce 20s. cloth, ^^^^^^^^^ _.-_. 
 
 A COMPENDIUM OF THE LAW OF PROPERTY IN 
 
 LAND For the use of Students and the Profession. Sccoiid Edition, by VflhUAH. 
 Douglas Edwards, LL.B., of Lincoln's Inn, Barrister-at-Law. 
 In royal Svo, price 28s. cloth, 
 
 A TREATISE ON THE LAW AND PRACTICE RE; 
 
 LATING TO LETTERS PATENT FOR INVENTIONS. With an Appendix of 
 Statutes, International Convention, Rules, Forms and Precedents, Orders, &c. By 
 Robekt' Frost, B.Sc. (Lond.), Barrister-at-Law. 
 
 Sccowl Edition, in Svo, price 26s. cloth, „^„ . 
 
 A CONCISE TREATISE ON PRIVATE INTERNA- 
 
 TIONAL JURISPRUDENCE. Based on the decisions in the English Courts. By 
 John Alderson Foote, of Lincoln's Inn, Barristei -at-Law ; Chancellor's Legal 
 Medallist and Senior Whewell Scholar of International Law, Cambridge University, 
 
 1873, etc. . „^ , ^^ 
 
 In Svo, price 30s. cloth, 
 
 THE PRACTICE ON THE CROWN SIDE OF THE 
 
 QUEENS BENCH DIVISION of Her Majesty's High Court of Justice (founded on 
 Corner's Crown Office Practice), including Appeals from Inferior Courts. With Appen- 
 dices of Rules and Forms. By F. Hugh Short, Chief Clerk of the Crown Office, and 
 Francis H. Mellor, M.A., Barristerat-Law. 
 
 Fifth Edition, Svo, price 10s. Qd. cloth, 
 
 RINGWOOD'S PRINCIPLES OF THE LAW OF BANK- 
 
 RUPTCY ; Embodying the Bankruptcy Acts, 1883 and 1890 ; part of the Debtors Act, 
 1869 ; the Bankruptcy Appeals (County Courts) Act, 1884. With an Appendix contain- 
 ing Schedules to the Bankruptcy Act, 1883; the Bankruptcy Rules, 1886 and 1890, &c., 
 &c. Fifth Edition. By R. Rinowood, of the Middle Temple, Barrister-at-Law. 
 In Svo, price 6s. 6rf. cloth, 
 
 THE CUSTOMS AND INLAND REVENUE ACTS, 1880 
 
 and 1881 (43 Vict. c. 14, and 44 Vict. c. 12), so far as they relate to the Probate, 
 Legacy, and Succession Duties, and the Duties on Accounts. With an Introduction 
 and Notes. By Alfred Hanson, Esq., Comptroller of Legacy and Succession Duties. 
 In One Volume, Svo, Third Edition, price 25s. cloth, 
 
 THE PROBATE, LEGACY, AND SUCCESSION DUTIES 
 
 ACTS : Comprising 36 Geo. 3, c. 62 ; 45 Geo. 3, c. 28 ; 65 Geo. 3, c. 184 ; and 16 & 
 17 Vict. c. 51 ; with an Introduction and copious Notes, incorporating the Cases to 
 Michaelmas Sittings, 1876 ; together with an Appendix of Statutes, and a full Index. 
 By Alfred Hanson, Esq., Comptroller of Legacy and Succession Duties. 
 Third Edition, in Svo, price 32s. cloth, 
 
 A MAGISTERIAL AND POLICE GUIDE : Being the statute 
 
 Law relating to the 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, and Temple Chevalier Martin, 
 Chief Clerk to the Magistrates at Lambeth Police Court, London. Third Edition, in- 
 cluding the Session 62 & 53 Vict„ and the Cases^£nide^^ the Superior Courts to 
 the End of the Yeag(5ffOOEE©EE ta'kWLifciiH!&*h^.'^
 
 [A Catalogue of New Law Works may AA 000 746 630 
 
 STEVENS AND HAYNES* LAW PUBLICATIONS. 
 
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 Second Edition, in 8vo, price 20s., cloth, ^t-,-, 
 
 CHAPTRES ON THE LAW RELATING TO ^THI 
 
 COLON lES To which are appended Topical Indexes ot Cases decided in the Priv 
 Council on appeal from the Colonies, Channel Islands, and the Isle of Man ; and « 
 Cases rehitin-' to the Colonies decided in the English Courts otherwise than on Appei 
 from the Cobnies. By C. J. Tauking, M.A., Assistant Judge H.B.M. » ConsuU 
 Court, Constantinople, and H.M.'s Consul. 
 
 Ill crown 8vo, price 10s. 6a. cloth, 
 
 THE LAW OF EVIDENCE. By s. l. phipson, m.a., of tt 
 
 Inner Temple, Barristerat-Law. 
 
 Fifth Edition, in crown %vo, price I2s. 6rf. cloth, 
 
 AN EPITOME OF CONVEYANCINa STATUTES, t-^tan. 
 
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 A PRACTICAL TREATISE ON THELAWOFBUILDINi 
 
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 Architects, Surveyors and Valuers, with an Appendix of Precedents, annotated 1 
 means of reference to the Text and to Contracts in use, and an Appendix of Unreport 
 Cases on Building and Engineering Contracts. By Alfred A. Hudson, of the Inn 
 Temple, Barrister-at-Law. 
 
 Sixth Edition, xn royal 8w, prvx 34s. cloth, __, ,^ . *,-r-r^ 
 
 TWV T.AW AND PRACTICE UNDER THE COMPANIE 
 
 ^ ACTS 1862 TO mo; aS THE LIFE ASSU^^^ COMPANIES ACTS, 1870- 
 
 1872 ('includinctlie Companies (Memorandum of Association) Act, the Corapanies(Win 
 inK Up) Act, and the Directors' Liability Act). Containing the Statutes, with the Ruh 
 Oniers, and Forms to regulate Proceedings, and full Notes of the Decisions, &c. , « 
 By H. Burton Buckley, M.A., of Lincoln's Inn, Esq., one of Her Majest; 
 
 Counsel. . . . „ • «, i ,i. 
 
 Fourth Edition, m 8w, price 21s. cloth, 
 
 T V TaswelvLanomead, B.C.L., of Lincoln's Inn, Bamster-at-Law. Foui 
 Edition, with Notes and Appendices. By C. H. K Carmichael, M.A. Oxon. 
 
 Second Edition, in Sw, price 22s. cloth, ^^.^ . rw,-r-..T 
 
 A TREATISE ON THE LAW & PRACTICE RELATIN 
 
 ^ TCr INFANTS By ArchibIld H. Simpson. M.A., Barnster-at-Law. Seco 
 Edition, by E. J. Elgood, B.C.L., M.A., Barrister-at-Law. 
 
 Seco}id Editvyn, in royal 8w, price 30s. doth, ^^ __ ^ -r»-nm 
 
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 ^tt LAW of VOLUNTARY DISPOSITIONS of PROPERTY. By the I 
 H W May B.A. Second Edition, by S. W. Worthington, Barnster-at-Law. 
 
 ' Second Edition, in Sro, price 15s. c^oth. ^^-.- . ^t^-wxt * 
 
 LEADING CASES AND OPINIONS ON INTERNATIONA 
 
 ^^U;^ • CoUeciid aid Di^isted from English and Foreign Reports Ofhcial Documei 
 P.rlUni«itarv Papers, and other Sources. With Notes and Excursus. By P 
 SS^TS.; D.CL., Barrister-at-Law, Professor of Law, Sydney University. 
 ' Second Edition, in 8vo, price 21s. doth, 
 
 Tnv T AWR OF INSURANCE : fire, life, accident, ai 
 
 ^^ARVN™ EmbodySgS^s iVth; English. Scotch, Irish, American , 
 Canadian Courts. By J. B. Porter and W. F. Craie.s, Barnsters-at-Law. 
 Canadian oou^^.^.^^ Jn One Volume, 8vo, price 26s cloth^ 
 
 A KFW LAW DICTIONARY AND INSTITUTE OF TI 
 
 ^ ^HOLE LAWi embr^iigfVenchaJdLatiiiTenns, and References to theAuthon^ 
 Ss and Statutes. Second Edition, mnch enlarged. By Archibald Brown. W 
 KdkfCd oSti., and B.C.L. Oxon., of the Middle Temple, Bamster-at-Law. 
 Sixth Edition. In One Volume, Svo, price 20s cloth, 
 
 PRINCIPLES OF THE COMMON LAW.,, intended for 
 
 ^^uS Vf SttidentPandthe Professi on. By John Indermaur. Solicitor. 
 
 [See Catalogue at end of this Volume. ]