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A SELECTION

LEADING CASES

YARIOrS ERAXCHES OF THE LAW:
MUth ilotcs.

JOH^ WILLIAM SMITH,

OF THE INNER TEMPLE, ESQUIRE, BARRISTKR-AT-LAW.
THE THIRD AND FOURTH EDITIONS Br

JAMES SHAW WILLES axd HENRY SINGER KEATING,

OF THE INNER TEMPLE, ESQUIRES, BARRISTERS-AT-LAW (AFTERWARDS JUDGES OF HER MAJESTY'S
COURT OF COMMON PLEAS AND MEMBERS OF HER MAJESTY'S PRI\'Y COUNCIL).

THE FIFTH AND SIXTH EDITIONS BY

FRED. PHILIP :MAUDE axd THOS. EDWARD CHITTY,

OF THE INNER TEMPLE, ESQUIRES, BAIUtlSTERS-AT-LAW.
THE SEVENTH AXD EIGHTH KIHTIONS AND

THE NINTH EDITION

RICHARD HENN COLLINS, M.A.,

FELLOW OF DOWNING COLLEGE, CAMBRIDGE, OF THE MIDDLE TEMPLE, ESQUIRE,
ONE OF HER MAJESTY'S COUNSEL;

AND

ROP.KKT GEORGE ARBUTHXoT. yi.X..

NINTH AMERICAN, FROM THE NINTH ENGLISH EDITION,

WITH ELABORATE AMERICAN NOTES TO DATE BY THE DISTINGUISHED AUTHORS NAMED
IN THE PUBLISHERS' PREFACE.

" It is ever good to rt-ly upon tin- l)ook iit liirjro; for many timos. Compendia sunt
dispendia, iiiid Mvlius est pet en- /on fes ijiiuni sectari rirulos." — 1 Inst. UOO b.

IN THREE VOLUMES.— VOL. IL

BOSTON:
CHARLES H. EDSON & CO., PUBLISHERS.

1888.

Copyrifiht, 788S,

By Charles 11. Edson 6c Co.

Typography by J. S. Gushing & Co.

Prhsswork by Berwick & Smith, Boston.

KEECH /'. HALL.

MICH. — I'd GEO. 3.
[reported dougl., 21.]

A mortgagee may recover in ejectment, ivithout giving notice to
quit against a tenant ivlio claims under a lease from the mort-
gagor, granted after the mortgage without the privity of the
mortgagee.

\_See noiv Conveyancing Act, 1881, 44 ^ 45 Vict. c. 41, s. 18.]

Ejectment tried at Guildhall, before Buller, Justice, and
verdict for the plaintiff. After a motion for a new trial or
leave to enter up judgment of nonsuit, and cause shown, the
court took time to consider ; and now Lord Mansfield stated
the case, and gave the opinion of the court as follows :

hord 3Iansfi eld — This is an ejectment brought for a ware-
house in the City, by a mortgagee, against a lessee under a
lease in writing for seven years, made after the date of the
mortgage, by the mortgagor, who had continued in possession.
The lease was at a rack-rent. The mortgagee had no notice of
the lease, nor the lessee any notice of the mortgage. The de-
fendant offered to attorn to the mortgagee before the ejectment
was brought. The plaintiff is willing to suffer the defendant
to redeem. There was no notice to quit: so that, though the
written lease should be bad, if the lessee is to be considered as
tenant from year to year, the plaintiff must fail in this action.
The question, therefore, for the court to decide is, whether by
the agreement understood between mortgagors and mortgagees,
which is that the latter shall receive interest, ;uid the former
keep possession, the mortgagee has given an im[)lied authority
to the mortgagor to let from year to year at a rack-rent ; or
Avhether he may not treat the defendant as a trespasser, dis-

823

bo/o I'D

824 KEECH V. HALL.

seisor, and wrongdoer. No case has been cited where this
question has been agitated, much less decided. The only case
at all like the present, is one that was tried before me on the
home circuit (^Belcher v. Collins) ; but there the mortgagee was
privy to the lease, and afterwards by a knavish trick wanted to
turn the tenant out. I do not wonder that such a case has not
occurred before. Where the lease is not a beneficial lease, it
is for the interest of the mortgagee to continue the tenant ; and
where it is, the tenant may put himself in the place of the
mortgagor, and either redeem himself, or get a friend to do it.
The idea that the question may be more proper for a court of
equity goes upon a mistake. It emphatically belongs to a court
of law, in opposition to a court of equity ; for a lessee at a rack-
rent is a purchaser for a valuable consideration, and in every
case between purchasers for a valuable consideration a court of
equity must follow, not lead the law. On full considei-ation
we are all clearly of opinion, that there is no inference of fraud
or consent against the mortgagee, to prevent him from consid-
ering the lessee as a wrongdoer. It is rightly admitted that if
the mortgagee had encouraged the tenant to lay out money he
could not maintain this action (a) ; but here the question turns
upon the agreement between the mortgagor and the mortgagee :
when the mortgagor is left in possession, the true inference to
be drawn is an agreement that he shall possess the premises at
will in the strictest sense, and therefore no notice is ever given
him to quit, and he is not even entitled to reap the crop, as
other tenants at will are, because all is liable to the debt ; on
payment of which the mortgagee's title ceases. The mortgagor
has no power, express or implied, to let leases not subject to
every circumstance of the mortgage. If, by implication, the
mortgagor had such a power, it must go to a great extent to
leases where a fine is taken on a renewal for lives. The tenant
stands exactly in the situation of the mortgagor. The posses-
sion of the mortgagor cannot be considered as holding out a
false appearance. It does not induce a belief that there is no
mortgage ; for it is the nature of the transaction that the
mortgagor shall continue in possession. Whoever wants to be
secure, when he takes a lease, should inquire after and examine
the title-deeds. In practice, indeed (especially in the case of
great estates), that is not often done, because the tenant relies

(a) Vide Cowp. 473.

KEECH V. HALL. 825

on the honour of his landlord ; but, whenever one of two inno-
cent persons must be a loser, the rule is, qui jyrior est tempore
potior est jure. If one must suffer it is he who has not used
due diligence in looking into the title. It was said at the bar,
tiiat if the plaintiff, in a case like this, can recover, he Avill also
be entitled to the mesne profits from the tenants, in an action
of trespass (a), which would be a manifest hardship and injus-
tice, as the tenant would then pay the rent twice. I give no
opinion on that point ; but there may be a distinction, for the
mortgagor may be considered as receiving the rents in order to
pay the interest, by an implied authority from the mortgagee,
till he determine his will. As to the lessee's right to reap the
crop which he may have sown previous to the determination of
the will of the mortgagee, that point does not arise in this case,
the ejectment being for a warehouse ; but, however that may be,
it could be no bar to the mortgagee's recovering in ejectment.
It would onl}' give the lessee a right of ingress and egress to
take the crop ; as to which, with regard to tenants at will, the
text of Littleton is clear. We are all clearly of opinion that
the plaintiff is entitled to judgment (5).

The Solicitor- G-eneral for the defendant. — Dimni7ig and Cow-
per for the plaintiff.

The rule discharged.

The point decided in tliis case has been since frequently confirmed. See Doe
V.Giles, 5 Ring. 421 ; Doe v. Maisey, 8 B. & C. 767 ; Thunder v. Belcher, 3 East,
449; Smartle v. Williams, 3 Lev. 387; 1 Salk. 245. ^Gibhs v. Cruickshank, L.
R. 8 C. P. 454, 42 L. J. C. P. 273; Daws v. Telford, 1 App. Cas. 414, 45 L. J.
Ex. 613.

It is, however, of comparatively small importance since the passing of the
Conveyancing Act, 1881, which, by s. 18, gives power to the mortgagor and
mortgagee respectively, if in possession, to grant valid leases, subject, however,
to certain qualifications and restrictions. That section is as follows : —

(«) [In Litchfield v. Ready, 5 Exch. White v. Hawkins, viz., not to sulTc-r

939, it was held that such action a lessee under a lease 2'"'ior to the

would not lie; hut see Barnett v. Guil- mortgage to avail himself of such

ford, 11 Exch. 19.] lease on an ejectment bj' the mortga-

(h) When the question was argued gee, if he has had notice before the

at the bar, Lord Mansfield said he action that the mortgagee did not in-

entirely approved of what had been tend to turn him out of possession,

done by Nares, Justice, upon the Ox- This doctrine is, however, long since

ford Circuit, and afterwards con- overrulrd. See Roe v. Reade, 1 T. R.

firmed by this court, in the case of 118; Doe v. Staple, 8 T. R. 684.

826 KEECH V. HALL.

" 18 (1). A mortgagor of land Avhile in possession shall, as against every
incumbrancer, have, by virtue of this Act, power to make from time to time
any such lease of the mortgaged land, or any part thereof, as is in this section
described and authorised.

" (2.) A mortgagee of land while in possession shall, as against all prior
incumbrancers, if any, and as against the mortgagor, have, by virtue of this
Act, power to make from time to time any such lease as aforesaid.

" (3.) The leases which this section authorises are : —
" (i.) An agricultural or occupation lease for any term not exceeding

twenty-one years ; and
" (ii.) A building lease for any term not exceeding ninety-nine years.

" (4.) Every person making a lease under this section may execute and do
all assurances and things necessary or proper in that behalf.

" (5.) Every such lease shall be made to take efl'ect in possession not later
than twelve months after its date.

" (6.) Every such lease shall receive the best rent that can reasonably be
obtained, regard being had to the circumstances of the case, but without any
fine l)eing taken.

" (7.) Every such lease shall contain a covenant by the lessee for payment
of the rent, and a condition of re-entry on the rent not being paid witliin a
time therein specified, not exceeding thirty days.

" (8.) A counterpart of every such lease shall be executed by the lessee and
delivered to the lessor, of which execution and delivery the execution of the
lease by the lessor shall, in favour of the lessee and all pei'sons deriving
title under him, be sufficient evidence.

" (9.) Every such building lease shall be made in consideration of the lessee,
or some person by whose direction the lease is granted, having erected, or
agreeing to erect within not more than five years from the date of the lease,
buildings, new or additional, or having improved or repaired buildings, or agree-
ing to improve or repair buildings within that time, or having executed, or
agreeing to execute within tliat time, on the land leased, an improvement for
or in connection with building purposes.

" (10.) In any such building lease a peppercorn rent, or a nominal or other
rent less than the rent ultimately payable, may be made payable for the first
five years, or any less part of the term.

" (11.) In case of a lease by the mortgagor, he shall, within one month
after making the lease, deliver to the mortgagee, or, where there are more
than one, to the mortgagee first in priority, a counterpart of the lease duly
executed by the lessee ; but the lessee shall not be concerned to see that this
provision is complied with.

" (12.) A contract to make or accept a lease under this section may be
enforced by or against every person on whom the lease, if granted, would be
binding.

" (13.) This section applies only if and as far as a contrary intention is
not expressed by the mortgagor and mortgagee in the mortgage deed, or other-
wise in writing, and shall have efl'ect subject to the terms of the mortgage
deed or of any such writing, and to the provisions therein contained.

" (14.) Nothing in this Act shall prevent the mortgage deed from reserving
to or conferring on the mortgagor or the mortgagee, or both, any further or
other powers of leasing or having reference to leasing; and any further or
other powers so reserved or conferred shall be exercisable, as far as may be,
as if they were conferred by this Act, and with all the like incidents, effects

KEECH V. HALL. 827

and conveyances, unless a contrary intention is expressed in the mortgage
deed.

" (15.) Nothing in tliis Act shall be construed to enable a mortgagor or
mortgagee to make a lease for any longer term or on any other conditions
than such as could have been gi-anted or imposed by the mortgagor, with the
concurrence of all the incumbrancers, if this Act had not been passed.

" (16.) This section applies only in case of a mortgage made after the
commencement of this Act; but the provisions thereof, or any of them, may,
by agreement in writing made after the commencement of this Act, between
mortgagor and mortgagee, be applied to a mortgage made before the com-
mencement of this Act, so, nevertheless, that any such agreement shall not
prejudicially a^ect any right or interest of any mortgagee not joining in or
adopting the agreement.

" (17.) The provisions of this section referring to a lease shall be construed
to extend and apply, as far as circumstances admit, to any letting, and to an
agreement, whether in writing or not, for leasing or letting."

The doctrine in Keech v. Hall is, however, still binding in all cases of leases
not falling within the provisions of the Conveyancing Act, 1881, and it has
been thought desirable, notwithstanding the passing of that Act, to retain the
note, dealing as it does to a great extent with the relations inter se of the
mortgagor and mortgagee, irrespectively of the rights which may be created
by leases granted to third persons.

And first, apart from the Conveyancing Act, 1881], when once it has been
proved that the mortgagee has recognised the tenant of the mortgagor as his
tenant, he cannot treat hifn as a tort feasor, nor if he elect to treat him as a
tort feasor, can he maintain any demand against him in which he is charged
as a tenant; for Birch v. Wright, 1 T. R. 378, clearly establishes that a man
cannot be treated at once both as a tenant and a trespasser.

[The cases of Doe d. Rogers v. Cadwallader, 2 B. & Ad. 473, and Doe d.
Whittaker v. Hales, 7 Bing. 322, are important on tjie question of what
amounts to such a recognition.]

In Doe dem. Rogers v. Cadwallader [which was an action of ejectment by
mortgagee against tenant of mortgagor], the wife of the lessor of the plain-
tiff had become mortgagee of the premises in question, by a deed, dated the
7th of May, 1828. Interest was payable on the 25th of December every
year; and had been paid up to the 25th of December, 1830; the demise was
on the 1st of July, 1830, and the defendant, who had been let into possession
after the mortgage by the mortgagor, contended that the action was not
maintainable because it was not competent to a mortgagee to treat the mort-
gagor or his tenants as trespassers, at any time during which their lawful
possession had l)een recognised by him ; and that, by receiving the interest
of the mortgage-money, on the 25th of December, 1830, he had acknowledged
that up to that time the defendant was in lawful possession of the premises ;
but the court gave judgment for the plaintiff on the ground that the receipt
of interest was no recognition of the defendant as a person in lawful pos-
session of the premises.

However, in Doe d. Whittaker v. Hales, Austin, having mortgaged the
premises to the lessor of the plaintiff, let them to the defendant. The mort-
gagee directed his attorney to apply to Austin for the interest; and the
attorney in April, 1830, applied to the defendant for rent to pay the interest,
threatened to distrain if it were not paid, and received it three or four times.
The learned judge at the trial, and the court in Banco afterwards, held that

328 KEECH V. HALL.

these facts amounted to a recognition that the defendant Avas lawfully in
possession in April, 1830, and consecpiently that he could not be treated as
having been a trespasser on December 25, 1829, the day on which the demise
was laid. See Doe d. Bowman v. Lewis, 13 M. & W. 241.

Lord Tenterden, delivering judgment in Doe v. Cadwallader, took some
pains to distinguish that case from Doe d. Whitlaker v. Hales.

Upon the wdiole the question whether the mortgagee have I'ecognised the
tenant of the mortgagor as his tenant appears to be a question more of fad
than of law, and probably would be left to the consideration of the jury,
providing there were any evidence fit to be submitted to them. And the
decision in Doe v. Cadwallader seems to establish that mere receipt of inter-
est by the mortgagee, coupled with no other fact wdiatever, would not l)e
evidence fit to be left to the jury on the question of recognition. The ruling
in Doe v. Cadwallader, it must, however, be observed, seems to have been
thought too severe by Lord Denraan in Evans v. Elliot, 9 A. & E. 342. It
seems, however, from a prior part of his lordship's judgment, that the three
other judges Avere disposed to adhere to the opinion expressed in Doe v.
Cadwallader.

[Next, there is a class of cases in which it has been held that the mort-
gage, though not specifically creating a tenancy, operated as a redemise to
the mortgagor, thus giving the latter a fresh power to demise, irrespectively
of the provisions of the Conveyancing Act, 1881. Thus it] often happens
that there is an express covenant in a mortgage deed, that the mortgagor
shall remain in possession of the premises until default in payment of the
mortgage-money at a certain period. Up to that jferiod he seems to hohl an
interest in the nature of a term of years ; and, of course, during that period
he has a right to the possession, and could not be legally ejected ; Wilkinson
V. Hall, 3 Bing. N. C. 508 ; the stipulation that he should remain in possession
operating as a redemise. When that fixed period has expired, he becomes,
if the money have not been paid, tenant at sufferance to the mortgagee. " We
must look," said Best, C. J., delivering judgment In such a case, "at the
covenant he has made with the mortgagee, to ascertain what his real situ-
ation is. We find, from the deed between the parties, that possession of his
estate is secured to him until a certain day, and that, if he does not redeem
his pledge by that day, the mortgagee has a right to enter and take posses-
sion. From that day the possession belongs to the mortgagee ; and there is
no more occasion for his requiring that the estate should be delivered up to
him before he brings an ejectment, than for a lessor to demand possession
on the determination of a term. The situation of a lessee on the expiration
of a term, and a mortgagor who has covenanted that the mortgagee may
enter on a certain day, is precisely the same." 5 Bing. 427.

And, attending to the distinction between an agreement to be collected
from the mortgage deed that the mortgagor shall remain in possession for a
time certain, Avhich operates as a redemise, and an agreement that the mort-
gagee may enter upon, or the mortgagor hold until, a default, the time of
which is uncertain, which agreement cannot operate as a redemise for viant
of certaintu (Com. Dig. Estate, G. 12), the view taken in Wilkinson v. Hall
seems not to be at A'ariance Avith the more recent decisions in Doe d. Pioii-
lance v. Lightfoot, 8 M. & W. 5G4, and Doe d. Parsley v. Day, 2 Q. B. 147,
though extended too widely in Doe d. Lister \. Goldioin, 2 Q. B. 143.

As for Wheeler v. Montefiore, 2 Q. B. 133, explained by the court in Doe d.
Parsley v. Day, 2 Q. B. \'n), it has no bearing upon the question; because the

KEECH V. HALL. 829

mortgage, in that case, was for a term of _years, the mortgagee liad never
eiiteretl, and tlic action was of trespass: wliicli form of action cannot be
maintained by a lessee for years befoi'e entry; altliougli lie may bring an
ejectment, because in that proceeding the riyht to the possession only is in
question. [See Harrison v. Blackhurn, 34 L. J. C. V. lOD.

In Turner v. Cameron's Coalhrook Steam Coal Co., ~> Exch. 932, 20 L. J.
Exch. 71, the mortgage does not appear to have been for years or a less es-
tate, and the court was of opinion that the mortgagee could not maintain
ti'espass before entry, because he had not entered; and see per Parke, B.,
Litchfield v. Beady, 5 Ex. 919, 945; Com. Dig. Trespass, B. 3. In Litchfield
V. Ready it was held that he could not after entry maintain trespass for
mesne profits before entry, against the mortgagor's tenant after mortgage.
It is to be observed, however, that Parke, B., in giving judgment in the case
of Litchfield v. Ready, proceeds upon the ground that the doctrine of rela-
tion back of possession to title is confined entirely to the case of disseisor
and disseisee, a view which the same learned judge modified in the later case
of Burnett v. Guilford, 12 Ex. 19, where the docti'ine was applied in the case
of entrj' bj"^ the lieir on an abator. In the case of Anderson v. Ratcliffe, E. B.
& E. 80G-819, the doctrine was applied, in the case of entry, bj' the assignee
of a term. But in the judgment of the Court of Exchequer Chamber the
case of mortgagor and mortgagee Avould seem to be put upon a distinct and
special footing. See S. C. 29 L. J. Q. B. 128.]

In Doe d. Lyster v. Goldwin, 2 Q. B. 143, a conveyance was made of the
legal estate, by Lj'ster and his wife, (in whose right he enjoyed the property,)
in order " to secure an annuity upon which money had been advanced by the
Globe Insurance Oftice ; " and it was in trust, amongst other things, to permit
and suffer Mrs. Lyster to receive the rents until default made for sixty days
in payment of the annuity ; and, no default appearing, it was held that the
legal estate remained by way of redemise in Lyster. But, to cite the obser-
vation of the court in a subsequent judgment, {Doe d. Parsley v. Day, 2 Q. B.
155,) "it may be questionable whether sufficient attention was paid in that
case to the point as to the cA-tainty of the time : at all events it was not decided
upon any ground that such certainty was immaterial." And it may be fnrtlier
observed, upon Doe d. Lyster v. Goldvnn, that the nature of the transaction
does not appear very distinctly, and the conveyance seems not unlikely to
have been simply a demise or assignment of a term to secure the annuity,
and so to have admitted of considerations different from those whicli govern
the case of an ordinary mortgage.' (See Jacob v. Milford, 1 J. & W. G29 ;
Doe d. Butler v. Lord Kensington, 8 Q. B. 429.)

In Doe d. Roylance v. Lightfoot, 8 M. & W. 553, the proviso was, that if the
mortgagor should well and truly pay the principal money and interest on the
25th of March then next, the mortgagee should reconvey, and there were
covenants that after default the mortgagee might enter, and also after default
for further assurance. The Court of Exchequer, referring to the passage in
Shepherd's Touchstone presently to be stated in full, and observing that it
was not brought to the attention of the court in Wilkinson v. Hall, held that
the estate was in the mortgagee from the time of the execution of the mortgage,
and that the statute of limitations began to run at that time.

In Doe d. Parsley v. Day, 2 Q. B. 147, freeholds and leaseholds were con-
veyed in mortgage with a proviso that upon payment of 550Z. and interest on
the 5th of October then next the conveyance should be void, but in case of
non-payment it was to be lawful for the mortgagee, after a month's notice in

830 KEECH \. HALL.

writing demanding payment, to enter into possession, and to mal<c leases and
sell, and there was a covenant by the mortgagee not to sell or lease nntil after
snch notice. The Court of Queen's Bench, following the authority of the
passage in the Touchstone, referred, to by Tarke, B., in Doe d. lioijluiice v.
LUjldfoot, and acceding to the doctrine of that case, came to the conclusion
that, inasmuch as after the day of payment, the time, if any, during Aviiich
the mortgagor was to hold was not determinate, but altogether uncertain ;
neither was there any affirmative covenant whatever that he should hold at
all: "the covenant, therefore, that the mortgagee shall not sell or lease, or
even if it be construed should not enter, until a month's notice, was a cove-
nant only and no lease."

The passage in Shep. Touch. (8th ed.) 272, referred to in Doe d. Roijlance v.
Liijhtfoot, was cited at length, and commented upon in the judgment in Doe d.
Parsley v. Day, as follows : — " If A. do but grant and covenant with B., that
B. should enjoy snch a piece of land for twenty years ; this is a good lease
for twenty years. So, if A. promise to B. to sutler him to enjoy such a piece
of land for twenty yea^s ; this is a good lease for twenty years. So, if A.
licence B. to enjoy such a piece of land for twenty years ; this is a good lease
for twenty years. And therefore it is the common course, if a man make a
feoflment in fee, or other estate upon condition, that if such a thing be or be
not done at such a time, that the feoffor, &c., shall re-enter, to the end, that
in this case the feoffor, &c., may have the land, and continue in possession
until that time, to make a covenant that he shall hold, and take the profits
of the land until that time ; and this covenant in this case will make a good
lease for that time, if the uncertainty of the time, whereunto care must be had,
do not make it void. (Mr. Preston adds, ' The limitation of a certain term,
with a collateral determination on the event, would meet the difficulties of
the case.') And, therefore, if A. bai-gain and sell his land to B. on condition
to re-enter if he pay him lOOL, and B. doth covenant with A. that he will not
take the profits until default of payment; or that A. shall take the proHts
until default of payment; in this case, howbeit this may be a good covenant,
yet it is no good lease (' for want,' says Mr. Preston, ' of a more formal con-
tract, and also for want of certainty of time '). And if the mortgagee cove-
nant with the mortgagor, that he will not take the profits of the land until
the day of payment of the money; in this case, albeit the time be certain, j'et
this is no good lease, but a covenant only (' since,' says Mr. Preston, ' the
words are negative only, and not affirmative'). Precisely the same law is
laid down in Powseley \. Blackman, Cro. Jac. 659; Evans v. Thomas, Cro.
Jac. 172; Jemmot v. Coaly, 1 Lev. 170; S. C. 1 Saund. 112, b., 1 Sid. 223,
262, 344; Sir T. Raymond, 135, 158; Keb. 784, 915; 2 Keb. 20, 184, 270, 295."

It may perhaps be concluded, on this review of the authorities, that in
order to make a Redemise, there must be an affirmative covenant, that the
mortgagor shall hold for a determinate time ; and that where either of those
elements is wanting, there is no redemise.

A mortgage deed sometimes contains [a specific] agreement that the mort-
gagor shall be tenant to the mortgagee at a rent ; or a power enabling the
mortgagee to distrain, by which no tenancy is created. The object of such
provisions is generally to further secure the payment of the interest [and if
so provided the principal. Ex parte Harnson, 18 Ch. D. 127], an object more
completely effected by adopting the former than the latter mode of framing
the deed; because, whilst the former makes the mortgagor tenant to the
mortgagee and creates a rent properly so called, with all its incident remedies

KEECH V. HALL. 831

[Anderson v. Midland Bail. Co., 30 L. J. Q. B. 94; see Jolly v. Arbuthnot, 4
De G. & J. 224 ; Morton v. Woods, L. R. 4 Q. B. 21)3, 38 L. J. Q. B. 81 ; Dauhxiz
V. Lavington, 13 Q. B. D. 347; In re Threlfall, Ex parte Queen's Benefit So-
ciety, 16 Ch. D. 274, 50 L. J. Ch. 318, sub nom. Ex parte Blake y ; Ex parte
Voisey, 21 Ch. D. 442; Kearsley v. Philips, 11 Q. B. D. 621, where Brett,
M. R., quotes the above passage in extenso \y\th approval; 52 L. J. Q. B.
581], the latter mode operates merely by way of personal licence from the
mortgagor, and aflects his interest only. The former mode, however, is open
to the objection that the tenancy created [unless apt words to tlie contrary
are used in the instrument, see In re Threlfall, Ex parte Queen's Benefit So-
ciety, supra'l is at will, and consequent!}' the rent precarious ; and to tlie more
practical one, that tlie deed containing it may possibly be held to require a
lease stamp. See 18 Jurist, part 2, p. 150.

The eftcct of either mode of framing the deed upon the [original] subject
of tliis note, viz., the right of the mortgagee to bring ejectment, must, in each
case, depend upon the terms in Avhich it is framed. [Further, the terms of
tlie deed of mortgage are important in considering a series of cases noted
later on, in which the question has been discussed whether instruments of
mortgage purporting to create the relation of landlord and tenant between
mortgagee and mortgagor have really had that effect so as to give the mort-
gagee the rights of a landlord as against other creditors of the mortgagor on
the bankruptcy of the latter.]

In Doe d. Garrod v. Olley, 12 A. & E. 481, it was agreed that tlie mortgagor,
during his occupation of the premises, should pay the mortgagee a rent of
50Z. a year, Avith such power of distress as landlords have on common
demises, pi'ovided that the reservation of rent should not prejudice the mort-
gagee's right to enter after default in payment of the moneys secured or any
part thereof. The mortgagee, after the principal had fallen due, distrained
for half a year's i-ent, and upon a subsequent default in payment of rent, the
principal still remaining due, he, without anj' notice to quit, brought an eject-
ment, and succeeded. Patteson, J., in that case, expressed his opinion that
it could not be meant tliat the 50/. should be a rent-charge, because the mort-
gagor had no estate in him, and that it seemed "as if the relation of landlord
and tenant was contemplated, but with liberty for the landlord to treat the
tenant as a trespasser at any time after any default." That decision was
confli*med and acted on in Doe d. Snell v. Tom, 4 Q. B. GI5.

In Doe d. Basto v. Cox, 11 Q. B. 122, the mortgagor agreed to become
tenant " henceforth at the will and pleasure of the mortgagee, at the yearly
rental of 251. 4s. payable quarterly," which agreement was held to create
a tenancy at will, not converted into a tenancy from year to year by occupa-
tion for two years and payment of rent.

[In The Metropolitan Counties, &c., Society v. Brovui, 4 H. & N. 428, powers
of sale aud entry after default on a certain day were given by the mortgage
deed, which provided that " to the intent that the mortgagees might have for
the recovery of interest on the principal money the same powers of entry and
distress as are given to landlords for the recover}^ of rent in arrear," the
mortgagor " did thereby attorn and become tenant from year to year of the
premises to the mortgagors at a yearly rent payable half-yearly. NcAerthe-
less, in the event of any sale under the powers thereinbefore contained," the
attornment and tenancy thereby created was, "as regards such portion of
the premises as should be sold to be at an end ; and that vnthout any previous
notice to put an end to the same." This mortgage having been assigned, the

832

KEECH V. HALL.

assignees after default in payment on tlie day named, without giving the
mortgagor six moutlis' notice to quit, served liim with a notice of entry, and
on liis refusal to give up possession brought an ejectment against him, wliich
action was held maintainable. "The clause of attornment," said Pollock,
C. B, "did not create a tenancy from year to year vith all Us incidents, and
looking at the deed in its entirety, the true construction is that the right
of entry overrides the other provision, and therefore, notwithstanding tlie
tenancy thereby created, the mortgagee may re-enter on default of payment
of the interest." The majority of the court seem to have been of opinion
that such form of mortgage creates a tenancy from year to year, determin-
able on the part of tlie mortgagees without notice to quit.

Wliere a mortgage deed, which was never executed by the mortgagees,
contained an attornment by the mortgagor for tlie term of ten years, with a
proviso that the landlord (the mortgagee) might enter and determine the
term at his will, it was urged, on the authority of Brooke's Abridgement, tit.
Lease 13, that the proviso must be rejected as repugnant, and there being no
deed executed that the term for ten years would be void. But the court held
that though this might be so in the ordinary case of a lease, yet, looking to
the whole object and scope of the deed in question, a tenancy was thereby
created so as to support a distress by the mortgagee. Morton v. Woods, L. R.
4 Q. B. 293; 38 L. J. Q. B. 81. As to the exact nature of the tenancy, see
per Lush, L. J., in Ex parte Punnett, 16 Ch. D. 226, 50 L. J. Ch. 212, where
this case was expi-essly followed by the C. A.

Similarly in In re Threlfall, 16 Ch. D. 274; 50 L. J. Ch. 318, where the
mortgage deed contained an attornment clause whereby the mortgagors " did
attorn and become tenants from year to year to" the mortgagees, with a
proviso that the mortgagees might at any time after a certain date, Avithout
notice, take possession of the mortgaged premises, it was held by the C. A.
that there was no repugnancy between these two clauses, and that a tenancy
from year to year in the mortgagors was created which supported a distress
by the mortgagees. See also Ex parte Voisey, 21 Ch. I). 442; 52 L. J.
Ch. 121.

AVhere a mortgage deed provided that the mortgagor in the event of his
making default should "immediately or at any time after such default" hold
the mortgaged premises as j^early tenant to the mortgagees from the date of
the deed, at a specified rent, it was held that the mortgagor did not, after
default, become tenant so as to give the mortgagees a right of distress, until
after some communication by them to him of the change tliey had resolved
to make in the terms upon which his possession was suftered to continue.
Cloioes v. Hughes, L. R. 5 Ex. 160; 39 L. J. Ex. 62.]

In [these] cases, the relation of landlord and tenant appears to have at
first existed ; but there have been others of a like character, in which a mere
personal licence to distrain, or a rent-charge (afterwards merged 1iy the
acquisition of the legal estate) , has been given to the mortgagee. Thus in
Doe d. Wilkinson v. Goodicr, 10 Q. B. 957, there was a power in the mortgagee
to distrain for interest if in arrear twenty-one days, " in like manner as for
rent reserved on a lease ; " and though the moi'tgagee had entered and dis-
trained after the day of the demise in ejectment, but for interest due before
that day, he was considered not to have recognised the mortgagor as his
tenant, and to be entitled to maintain ejectment.

In Freeman v. Edwards, 2 Exch. 732, the mortgage, which was of copyhold,
contained a similar power to distrain for interest; the mortgagee was ad-

KEECH V. HALL. 833

mitted to the copyholds; the mortgagor became bankrupt, and Avhilst lie still
remained in possession, the mortgagee distrained for interest in arrear; for
which act the assignees of the mortgagor sued in trespass. The mortgagee
pleaded a justification under the deed, which plea was held bad after verdict.
The ai'guments advanced on either side, and the view taken by the court of
the operation of such poAver, appear fully in the following passage from the
judgment of Parke, B. : [as reported in 17 L. J. Ex. 201] — "The utmost
effect that can be given to this deed, is to consider it as operating as a cove-
nant that the mortgagee may seize such goods of the mortgagor as shall be
on the promises at the time the distress is made, and treat them as if dis-
trained ; such a covenant would not affect any specific goods before seizure,
and therefore the goods came to the assignees not subject to any equit}^
Probably, the argument that the grant operated so as to create a rent-charge
is correct ; and if so, the rent-charge continued until the surrender and ad-
mittance. But it is not necessary to decide that, for as soon as the grantee
of the rent^charge, if it was one, became entitled to the fee simple in
possession, the rent-charge Avas gone, and the covenant ceased to exist as an
obligation binding the land. It might, however, still exist as a personal
covenant, binding the covenantor, though it would not affect third persons.
The argument of the plaintiff's counsel, that the effect of the deed Avas
exhausted by the creation of the rent, may make this doubtful ; and it is not
necessary to decide it, for, giving the covenant this effect, it Avill not make
this a good plea. The covenant at most is to be construed as an agreement
that all goods l)elonging to Leedham (the mortgagor) at the time of the dis-
tress, and then upon the land, might be seized. This Avould affect his OAvn
goods AA-hen seized. Up to the seizure the whole is contingent, and gives no
lien on specific goods. Before the distress Avas made, Leedham became bank-
rupt ; at that time the Avhole of the goods AA-hich Avere his property, and then
upon the land, Avere contingently liable to be seized, but no specific portion
Avas liable more than the rest. There Avas, therefore, no lien on any portion
of the goods, according to the principle of the decision in Carvdhn \. Burn,
4 B. & Ad. 382 (1 A. & E. 883). Then at the moment of the distress the
goods had ceased to belong to Leedham, and became the property of the
assignees, and, as goods not belonging to the covenantor, Avere not subject
to the coA-enant." See also Chapman \. Beecher, 3 Q. B. 723.

[A personal licence to distrain should seem not to be transferable, and the
assignee of the mortgage could not justify a seizure under it as a servant of
the mortgagee. (See Broion v. The Metropolitan, &c., Society, 1 El. & El. 832,
28 L. J. Q. B. 23G.)

In certain cases the courts have held, on various grounds, that the mort-
gage deed, though purporting to create a tenancy in the mortgagor, had not
that effect. Thus] in Walki^r v. Giles, 6 C. B. GG2, Avhere a conveyance to the
trustees of a building society, to secure payment of subscriptions, contained
a clause Avhereby the mortgagor agreed to become tenant to the trustees of
the premises, thenceforth " during their will, at the net yearly rent of 200Z.,
payable on the usual quarter days; the Court of Common Pleas held that
there Avas no tenancy, the general scope of the deed being inconsistent Avith
such a construction, since, if there Avas a tenancy, the mortgag[or] might be
called upon to pay both the subscriptions and the rent. This case seems,
however, open to the animadversion AA'hich it has called forth in the 13 .Jurist,
part 2, p. 4fi3, and 17 Jurist, part 2. p. 149; and the court appears to have
disregarded the express intention of the parties, in order to avoid the fancied

334 KEECH V. HALL.

injustice of the trustees having the power (subject to the control of a court
of equity) to recover their debt twice over, in other words, to treat tlie rent
as a security for payment of the subscriptions. And in the more recent case
of Pinhorn v. Souster, 8 Exch. 763, where the deed more fully, though
scarcely more clearly, than in Walker v. Giles, expressed the intention that a
tenancy at will should be created, and stipulated that tlie mortgagee should
apply the rent in satisfaction of the rent due from the mortgagor to his
superior landlord, and in satisfaction of the principal and interest, and pay
the surplus, if any, to the mortgagor, the Court of Exchequer [distinguish-
ing Walker v. Ones'] held that a tenancy at will was ci'eated, in respect of
which the mortgagee might distrain ; and further, that such tenancy was not
put an end to by assignment of the mortgagor's interest witliout notice to
the mortgagee. [In Brown v. The Metropolitan, &c., Suciettj, 28 L. J. Q. B.
230 ; 1 El. & El. 832 ; the court expressed an opinion that Walker v. Giles
could only be supported, if at all, on the ground, pointed out by Lord Wens-
leydale in Pinhorn v. Souster, that the tenancy and power of distress were
inconsistent with the other provisions of the deed. See also Turner v.
Barnes, 2 B. & S. 435; 31 L. J. Q. B. 170. Ex parte Harrison, 18 Ch.
D. 127.

Again, there have been cases in which the courts have lield tliat no tenancy
Avas created so as to support a disti'ess, when it appeared, from the terms of
the mortgage, that it was never the intention of the parties to create a real
tenancy, but that the attornment clause was a mere device to defeat the
bankruptcy law by giving the mortgagee a preference over the mortgagor's
other creditors.

This Avas held to be the case where the rent nominally reserved was ex-
travagantly high as compared with the real value of the mortgaged premises,
Ex parte Williams, 7 Ch. D. 138 ; Ex parte Jackson, 14 Ch. D. 725, distinguished
in Ex parte Voisey, 21 Ch. D. 442; 52 L. J. Ch. 121, where the subject is fully
discussed by the C. A. See also In re Stockton Iron Eurnace Co., 10 Ch.
D. 335.

By the Bills of Sale Act 1878 (41 & 42 Vict. c. 31), s. G, it is provided that
" every attornment, instrument, or agreement, not being a mining lease,
whereby a power of distress is given, or agreed to be given, by any person
to any other person by way of security for any present, future, or contingent
debt or advance, and whereby any rent is reserved or made payable as a mode
of providing for the payment of interest on such debt or advance, or other-
wise for the purpose of such security only, shall be deemed to be a bill of
sale, within the meaning of this Act, of any personal chattels which may be
seized or taken under such power of distress.

" Provided that nothing in this section shall extend to any mortgage of any
estate or interest in any land, tenement, or hereditament which the mortgagee,
being in possession, shall have demised to tlie mortgagor as his tenant at a
fair and reasonable rent."

The above provision, coupled with the additional stringency of the Bills of
Sale Amendment Act, 1882 (45 & 4(5 Vict. c. 43), as to bills of sale in general,
may probably render such clauses of less frequent occurrence in mortgages
in the future. However, in the case of Hall v. Comfort, 18 Q. B. D. 11, it
was held that a mortgage deed, containing an attornment clause, was not
rendered void by the Bills of Sale Acts quoad the demise, and, therefore,
following Dauhuz v. Lavimiton, 13 Q. B. D. 847, that the mortgagee might
indorse his writ under Order III. rule 6, and recover possession under Order

KEECH V. HALL. 835

XIV., as " ao:ainst a tenant whose term had expired or had been duly deter-
mined by notice to quit."

In Hampson v. FeUoirs, L. R. Eq. 575, the mortgagor assigned the lease
for tw'nty-onc years of a house in which he resided, together Avith two
policies of assurance on his life, to secure the repayment of 250?. and inter-
est, and the premiums on the policies. By the deed the mortgagor attorned
tenant to the mortgagee at the yearly rent of 175/., with a proviso for the
determination of the tenancy at the Avill of the mortgagee. IMalins, V.-C.,
restrained by injunction a distress under this clause for the principal, hold-
ing, however, that the mortgagee would have been justified in distraining
under it for any " outgoings under the deed," tliat is to say, intei'est on the
advance, premiums on the policies, and the landlord's rent of the house; the
ground on Avhich the Vice-Chancellor came to the conclusion that such was
the intention of the clause, having apparently been, that the I75Z. was, in
round numbers, the aggregate amount of those outgoings.

Tliis case, however, was not followed in Ex parte Harrison, IS Ch. D. 127.
The attornment clause there provided for a yearly rent of 593/;. 15s., which
was equal to the annual interest at 4| per cent, primarily covenanted for,
though sucli interest was reducible to the rate of 3| per cent, on punctual
payment. In the Court of Appeal, notwithstanding those circumstances, it
was held that the fruits of a distress under the clause Avere properly applica-
ble to principal as Avell as interest.

Another mode of securing the mortgagor's possession of the mortgaged
premises is to make him tenant of them to a third person appointed by him
and the mortgagee to receive the rents of the premises. This Avas done in
Jolly V. Arhuthnot, 4 De G. & J. 224. In that case, b}' a deed, executed at the
same time as the mortgage, and made betAveen the mortgagor, mortgagee,
and Aplin, after reciting that it AA'as agreed that, for the purpose of securing
payment of the interest, and providing a fund for repayment of the principal,
the mortgagor should attorn as tenant to Aplin, it Avas Avitnessed that the
mortgagor and mortgagee in pursuance of the agreement constituted Aplin
receiA'er of tlie rents and profits of the premises, Avith poAvers of entry and
distress, and that the mortgagor attorned to Aplin and became his tenant
from year to year ; provided that, on default in payment, the mortgagee
might enter and avoid the tenancy created by the attornment, and that noth-
ing contained in the deed should abridge his rights or poAvers under the mort-
gage. After execution of this deed, and after default in payment on the
appointed day of the principal sum secured by the mortgage, the moi'tgagor
Avas adjudicated a bankrupt, and thereupon Aplin distrained on his goods on
the premises for a year's rent. The chief question Avas, Avhich of the tAvo
parties — the mortgagee, or the assignees in bankruptcy of the mortgagor — •
Avas entitled to the proceeds of this distress.

Tlie M. R. decided in favour of the assignees, holding that the relation of
landlord and tenant did not exist between the bankrupt and the receiver, for,
as the receivership deed recited the true state of the title, it could not by
.estoppel constitute that relation, and that consequently no estate Avas con-
ferred on Aplin to Avhich the right of distress could be annexed so as to be
available against the assignee of the mortgagor. It seems, hoAvever, that his
Honour, in I'cferring to Dancer v. Hastings, 4 Bing. 34, (in Avhich a demise
by a receiver appointed by the Court of Chancery Avas determined to be a
good lease to entitle him to distrain and to estop the tenant from denying tlie
tenancy,) did not notice the report of that case in 12 B. Moore, 2, Avhich

83(3 KEECH V. HALL.

report shows that there the lease, setting out the title of the lessor as receiver
appointed by the court, disclosed the fact that he had no interest in the land.

Against this decision of the M. R. the mortgagee appealed, and the appeal
was allowed by Lord Chelmsford, C The judgment on appeal contains a
learned review of the authorities upon the subject. The Lord Chancellor
held that the circumstance of the truth of the case appearing on the deed,
was a reason why the agreement of the parties should 1)e carried out, either
by giving eflect to their intentions in the manner prescribed, or by way of
estoppel to prevent their denying the right to do the acts which they had
authorised to be done ; and that even if the ci-eation of the tenancy diii not
admit the scintilla of a reversion to which the right of distress might be
annexed, yet there was nothing in such cases to prevent the power from Ix'iiig
exercised, although there might be no reversion in the person to Avhom the
attornment was made ; that the relation of landlord and tenant was in fact
created by the intention of the parties, and that consequently the power of
distress was not a mere power in gross but might be exercised against the
assignee. See also Evans v. Mathias, 7 E. & B. 590. In ^forton v. Woods,
L. R. 4 Q. B. 293; 38 L. J. Q. B. 81, the Court of Exchequer Chamber
exjjressly followed the above decision of Lord Chelmsford, C, and the last-
mentioned case was followed by the C. A. in Ex parte Punnett, IG Ch. D. 220,
50 L. J. Ch. 212.

With respect to the nature of the mortgagor's possession after the mort-
gage, where there is no stipulation that he should be allowed to remain in
possession for any certain time, there seems to be more difficulty. Messrs.
Coote and Morley, in an elaborate note to Watkins on Conveyancing, deliver
it as their opinion, that " if there be no express agreement originally as to
the period of possession, and the mortgagor, being the occupant, remain in
possession with the consent of the mortgagee, it seems that, in such a case, he
ought to be considered strictly as tenant at will."

This is true, if it be admitted that he has remained in possession vith the
consent of the mortgagee. But tlie more difficult question seems to l)e under
what circumstances shall the mortgagee's consent be taken to exist, and shall
it be implied merely from the fact of his abstaining from ousting the mort-
gagor immediately after the execution of the mortgage? Certainly neither
the case of Thunder dem. Weaver v. Belcher, 3 East, 450; nor that of Smartle
V. Williams, 1 Salk. 246; 3 Lev. 387, which are cited by Messrs. Coote and
Morley, have any tendency in favour of such an implication; for, in the
former, ejectment was brought against a tenant let into possession hy the
mortgagor after the mortgage; and, as there had been no recognition of him
by the mortgagee, there was judgment against him ; and so far was the court
from considering that the mortgagor would, under the circumstances above
supposed, have been tenant at will, had he remained himself in possession
instead of letting, that Lord EUenborough says, "a mortgagor is no more
than a tenant at sufferance, not entitled to any notice to quit; and one tenant
at sufferance cannot make another."

In Smartle v. Williams the mortgagor certainly remained in possession,
and that with the express consent of the mortgagee, for Holt, C. J., says:
" Upon executing the deed of mortgage, the mortgagor, bi/ the covenant to
enjoy till default of payment, is tenant at will." But in that case the mort-
gagee had assigned the mortgage; and the question was, whether, by doing
so, he had determined his will, and whether the mortgagor's subsequent con-
tinuance in possession divested the estate of the assignee, and turned it to a

KEECH V. HALL. 837

right so as to prevent a person to Avhom the assiainee aftenvards assigned,
and who brought the ejectment, from taking any k'gal interest ; upon which
point the court liekl that it had no such ertect, since the mortgagor was, at all
events, tenant at sufferance after the assignment.

And it is not believed that there exists any decision in which a mortgagor
remaining in possession, after an absolute conveyance away of his estate, by
way of mortgage, without any consent on the part of the mortgagee, express
or to be implied otherwise than from his silence, has been considered in any
other light than as tenant at sufferance, to the definition of whom he seems
stx'ictly to answer, being a person who comes in by right, and holds over vnthout
right: see Co. Litt. 57, and Lord Ilale's MSS., note 5, where the following
case is put, which seems analogous : — "if tenant for years surrenders, and
still continues possession, he is tenant at sufterance or disseisor at election."

This subject has been treated at some length, because the reader will find
it often said that a mortgagor in possession is tenant at v:ill quodammodo ; an
idea which Lord Mansfield especially seems to have countenanced, for in the
principal case he says, "when the mortgagor is left in possession, the true
inference to be draw'u is an agreement that he shall possess the premises at
will, in the strictest sense : and therefore, no notice is ever given him to quit,
and he is not even entitled to reap the crop, as other tenants at will are,
because all is liable to the debt : " and in Moss v. Gallimore, which will be
printed in this collection, he calls the mortgagor "tenant at will quodam-
modo." Whereas Lord Ellenborough, in Thunder v. Belcher, denominated
him "tenant at sufterance;" and it is submitted that it would be more
convenient to range his possession under some one of the ancient and well-
known descriptions of tenancy than to invent the new and anomalous class
of tenants at v:ill quodammodo, for the only purpose of including it. See
Litt. sec. 381.

[" A mortgagor is not in all respects a mere l)ailiff', he is much like a bailift";
he is not a mere tenant at will ; in fact, he can be described merelj' by saying
he is a mortgagor." Fer Parke, B., Litchfield v. Ready, 20 L. J. Exch. 51.
"He is not a tenant at a\\," per Pattesou, J., Wilton v. Dunn, 17 Q. B. 299,
and Watson, B., Hickman v. Machin, 4 H. & N. 722. " Tlie case of Keech v.
Hall established the doctrine that (in the absence of any contract or conduct
to vary the application of the law) a mortgagee having the legal estate may,
Avithout any notice to quit, treat the tenant or lessee of the mortgagor as a
trespasser or Avrong-doer ; and that the possession held by the mortgagor, or
those holding under him imtil the mortgagee thinks fit to take it, is in the
strictest sense precarious, and held at the mere will of the mortgagee," per
Lord Selborne, Loics v. Telford, 1 App. Cas. 426; 45 L. J. Ex. ()13; and see'
the judgment in Jolly v. Arbuthnot, 4 De G. & J. 224; Powell v. Allen, 4 Kay
& J. 343; Thorp v. Facey, 35 L. J. C. P. 349; Ex parte Isheru-ood, 22 Ch. D.
391,per Jessel, M. R.

In Gibbs v. Cruickshank, L. R. 8 C. P. 454, 42 L. J. C. P. 273, the Court
seem to adopt the view that the mortgagor is a tenant at sufterance, but that
a.t anj' rate he cannot create a sub-tenancj' ; his sub-tenants are mere tort
feasors and cannot sue the mortgagee in trespass.]

Upon the whole it is concluded, 1st. That, if there be in the mortgage-
deed an agreement that the mortgagor shall continue in possession till default
of payment on a certain day, he is in the meanwhile termor of the intervening
term. 2dly. That if default be made on that day, he becomes tenant at suf-
ferance. 3dlv. That when there is no such agreement, he is tenant at sufler-

838 KEECH V. HALL.

ance immediately upon the execution of tlie mortjjacfe, unless the mortgagee
expressly or impliedly consented to his remaining in possession. 4thly. That
such consent renders him tenant at will. Sthly. That if in any of the last
three cases he let in tenants, they may [in cases not falling within the Con-
veyancing Act, 1881, s. 18] be treated by the mortgagee, if he think proper,
as tort feasors. Gthly. That, if the mortgagee recognise their po.ssession,
they become his tenants. Lastly, tliat the mere receipt of interest from the
mortgagor docs not amoiuit to sucli a recognition. These two last proposi-
tions must, however, now be taken subject to the doubts expressed in Evans
V. Elliot.

[By the Judicature Act, 1873, 36 & 37 Vict. c. G6, s. 25, subs. 5, it is provided
that " a mortf/agor entitled for the time being to the possession or receipt of
the rents and profits of any land as to whicli no notice of his intention to take
possession or to enter into the receipt of the rents and profits thereof, shall
have been given by the mortgagee, may sue for such possession or for the
recovery of such rents or profits, or to prevent or recover damages in respect
of any trespass or other wrong relative thereto in his own name only, unless
the cause of action arises upon a lease or other contract made l)y him jointly
with any other person."]

The relation between mortgagor and mortgagee with reference more espe-
cially to proceedings for the recovery of rents from the tenants of the land, is
further considered in the note to Moss v. GalUmorc, post.

Relation of a mortgagee to a tenant under a lease made by a
mortgagor subsequently to the mortgage and -while remaining in
possession of the mortgaged premises. — (As tO the tenant's posi-
tion with reference to the payment of rent, see American notes
to Moss V. Gallimore, infra.~) The mortgagor cannot make a
lease which will be binding upon the mortgagee ; McDermott v.
Burke, 16 Cal. 580 ; Clary v. Owen, 15 Gray 522. The mort-
gagee, in the absence of statute, is entitled to the immediate
possession of the mortgaged premises ; Colman v. Packard, 16
]\lass. 39 ; Doe v. Grimes, 7 Blackf. (Ind.) 1 ; may enter with-
out notice to the mortgagor; Holbrook v. Lackey, 11 Met. 458;
Blaney v. Bearce, 2 Greenl. 132 ; Hartshorn v. Hubbard, 2 N.
H. 453 ; Brown v. Cram, 1 ib. 169 ; and such an entry will
authorise the retaining of possession and the taking of the
rents and profits ; Welch v. Adams, 1 Met. 494 ; Reed v. Davis,

4 Pick. 215.

Trespass. — The mortgagee must enter before he can main-
tain trespass q. cl. against the mortgagor or his tenant ; JNIayo
V. Fletcher, 14 Pick. 525, 532 ; Furbush v. Goodwin, 29 N. H.
321; Wheeler v. Montefiore, 2 Q. B. 138; Litchfield v. Ready,

5 Ex. 939, 945 ; otherwise, though, if the injury be to the free-

KEECH V. HALL. 839

hold ; Leavitt v. Eastman, 77 Me. 117 ; Cole v. Stewart, 11
Cush. 181 ; Page v. Robiiison, 10 ib. 99 ; Furbush v. Goodwin,
sup7'a.

Ejectment. — The mortgagee may maintain an action of eject-
ment against the tenant without notice, to quit; Doe v. Mace,

7 Blackf. (Ind.) 2 ; Den v. Stockton, 7 Hals. (N. J.) 322 ; New
Haven Bank v. McPartlan, 40 Conn. 90 ; Carroll v. Ballance,
26 111. 9; Rogers v. Humphreys, 4 Ad. & E. 299 at 313;
Thunder (7. Weaver v. Belcher, 3 East 449 ; or the mortgagee
may eject the tenant without notice to quit ; Corner v. Sheehan,
74 Ala. 452; Bank of Wash. v. Hupp, 10 Grattan 23 at 49;
Bartlett v. Hitchcock, 10 Bradw. (111.) 87 ; Stedman v. Gassett,
18 Vt. 346 ; Downard v. Groff, 40 Iowa 597 ; Brown v. Cram,
1 N. H. 169. For the doctrine peculiar to Ncav York, see Lane
V. King, 8 Wend. 584; M'Kircher v. Hawley, 16 Johns. 289 ;
and the tenant, when ejected, cannot retain the emblements ;
Lynde v. Rowe, 12 Allen 101 ; Mayo v. Fletcher, 14 Pick. 525 ;
Jones V. Thomas, 8 Blackf. (Ind.) 428 ; Downard v. Groff,
supra; Lane v. King, supra. If the mortgagee enter, neither
the mortgagor nor his tenant will be entitled to the emble-
ments ; Clary v. Owen, 15 Gray 522, 525.

Crops and Improvements. — The purchaser at a foreclosure
sale is entitled to the crops growing at the time of sale ; Shep-
ard V. Philbrick, 2 Den. (N. Y.) 174 ; not only as against
the mortgagor, but all persons claiming under him ; Ran-
kin V. Kinsey, 7. Bradw. (111.) 215, 219 ; and may maintain
trespass against the mortgagor or his tenant for taking and
carrying them away ; Downard v. Groff, supra ; or replevin,
Scriven v. Moote, 36 Mich. 64 ; or he may proceed by injunc-
tion to restrain the mortgagor's creditor from levying upon
the growing crops ; Crews v. Pendleton, 1 Leigh (Va.) 297.
That the tenant, when the mortgagee has recovered possession
of the mortgaged premises, cannot be allowed compensation
for improvements ; see Haven v. Boston & Worcester Corp.,

8 Allen 369; Haven v. Adams, 8 ib. 363. '

Action for mesne profits by the mortgagee against the tenant. —
Whether the entry of the mortgagee into the mortgaged prem-
ises, (it being unimportant whether the entry was made with
or without action,) relates back so as to allow the mortgagee
to recover in an appropriate form of action the mesne profits
accruing prior to the entry, is a question not free from doubt.

840 KEECH V. HALL.

The prevailing doctrine in this country is that held in Massachu-
setts and New Jersey, probably, but in Virginia see Bank of
Wash. V. Hupp, 10 Grattan 23 at 49. In Mass., Mayo v. Fletcher,
14 Pick. 525, 531, it was said that mesne profits accruing prior to
the entry by the mortgagee could not be recovered, because the
tenant was entitled to the rents and profits so long as he was
allowed to remain in possession of the mortgaged premises. In
New Jersey, the majority of the court held in Sanderson v. Price,
1 Zab. 637, that the tenant would be liable to the mortgagee
for mesne profits only from actual entry, although four dissent-
ing judges, following the Vermont cases, L3^man v. Mower, 6
Vt. 345 and cases there cited, held that after actual entry by
the mortgagee the tenant would be liable from the time of
iictual notice from the mortgagee and, in the absence of other
notice, from the time of the service of the process in the eject-
ment proceeding ; see, also, Henshaw v. Wells, 9 Humph.
(Tenn.) 568, 582. In England, it is held that after actual
entry, whether, by action or not, the entry relates back so that
the mortgagee may recover the mesne profits if he proves his
title to possession at the time they were taken ; Barnett v.
Guilford, 11 Ex. 19, 31. In England, therefore, although the
mortgagee cannot by mere notice compel the tenant to pay him
the rents then due, as rents, yet he may be able in an action
for mesne profits to recover the equivalent for the rents. As
to the form of action for mesne profits, it has been held. Good-
title V. North, Douglas 584, that mesne profits, prior to the day
of the demise laid in the declaration in ejectment, may be
recovered in an action for use and occupation, if the plaintiff
waives the tort, but that use and occupation will not lie for
mesne profits accruing subsequently to that day, as the plain-
tiff, having in the ejectment proceeding treated the defendant
B-s a trespasser, is estopped from treating him as a tenant. Birch
V. Wright, 1 T. R. 378, 87. After the mortgagee has entered,
he may recover mesne profits from that time from the tenant
in possession refusing to yield the possession, Northampton
Mills V. Ames, 8 Met. 1; Hill v. Jordan, 30 Me. 367, even
though the entry be ineffectual for the purpose of foreclosure,
Northampton Mills v. Ames, supra.

Writ of entry. — That a mortgagee, never having entered,
may, Avithout notice to the mortgagor to quit, maintain a writ
of entry against him ; see Mayo v. Fletcher, 14 Pick. 525, 530 ;

KEECH V. HALL. 841

Blaney v. Bearce, 2 Greenl. 132, 7 ; Hobart v. Sanborn, 13 N. H.
221 ; Hartshorn v. Hubbard, 2 ib. 453 ; and as the tenant
stands in the place of the mortgagor with the same rights and
liabilities, the mortgagee without having entered can Avith-
out notice undoubtedly maintain a writ of entry against the
tenant. If, after the mortgagee has entered, his possession is
disturbed by the mortgagor or his tenant, the mortgagee can
maintain a writ of entry, and recover damages for the rents
and profits of which he has been wrongfully deprived ; Stewart
V. Davis, 63 Me. 539; Miner v, Stevens, 1 Gush. (Mass.) 468.

WIGGLESWORTH v. DALLISON.

TRINITY. — Id GEO. 3.

[UEPOUTIOD DOUGL. 201.]

A custom that the tenant^ lohether hy i^arol or deed, shall have
the way-going crop, after the expiration of his term, is good,
if not repugyiant to the lease hy tvhich he holds (a).

This was an action of trespass for moAving, carrying aAvay,
and converting to the defendant's own use, the corn of the
plaintiff, growing in a field called Hihaldstoiv Leys, in the parish
of Hihaldstoiv, in the county of Lincoln. The defendant Dalli-
son pleaded liherum tenementum, and the other defendant justi-
fied as his servant. The plaintiff replied, that true it was that
the locus in quo was the close, soil, and freehold of Dallison ;
but, after stating that one Isabella Dallison, deceased, being
tenant for life, and Dallison, the reversioner in fee, made a
lease on the 2nd of March, 1753, by which the said Isabella
demised, and the said Dallison confirmed, the said close to the
plaintiff, his executors, administrators, and assigns, for twenty-
one years, to be computed from the 1st of May, 1755, and that
the plaintiff, by virtue thereof, entered and continued in posses-
sion till the end of the said term of tAventy-one years — he
pleaded a custom in the following words, viz., " That within
the parish of Hihaldstoiv, there now is, and, from time whereof
the memory of man is not to the contrar}^, there hath been a
certain ancient and laudable custom, there used and approved
of, that is to say, that every tenant and farmer of any lands
within the same parish, for any term of years which hath ex-

(a) And where entitled by custom remains in the tenant. See Griffiths
to the way-going crop, he Iceeping y. Puleston, 13 M. & W. 359.
the fences in repair, the possession

842

WIGGLESWORTH V. DALLISON. 843

pired on the first day of May in any year, hath been used and
accustomed, and of riglit ought, to have, take, and enjoy, to liis
own use, and to reap, cut, and carry away, when ripe and lit to
be reaped and talven a^^•ay, his way-going crop, that is to say,
all the corn growing upcju the said lands which hath before the
expiration of sitch term been sown by such tenant upon any
j)art of such lands, not exceeding a reasonable quantity thereof
in proportion to the residue of such lands, according to the
course and usage of husbandry in tlie same parish, and which
hath been left standing and growing upon such lands at the
expiration of such term of years." He then stated that, in the
year 1775, he sowed with corn part of the said close, being a
reasonable part in proportion to the residue thereof, according
to the course and usage of husbandry in the said parish, and
that the corn produced and raised by such sowing of the corn
so sown as aforesaid, being the corn in the declaration mentioned,
at the end of the term, and at the time of trespass committed,
was standing and growing in the said close, the said time not
exceeding a reasonable time for the same to stand, in order to
ripen and become fit to be reaped, and that he was during all that
time lawfully possessed of the said corn, as his absolute prop-
ert}^ by virtue of the custcun. The defendant, in his rejoinder,
denied the existence of any such custom, and concluded to the
country. The cause was tried before Eyre, Baron, at the last
assizes for Lincolnshire, when the jury found the custom in the
words of the replication.

Baldwin moved, in arrest of judgment, that such a custom
was repugnant to the terms of the deed, and therefore, though
it might be good in respect to parol leases, could not have a
legal existence in the case of cases by deed. He relied on
Trumioer v. Carivardine, before Yates, Justice (a), the circum-
stances of which case were these :

" The plaintiff had been lessee under the corporation of Here-
ford for a term of twenty-one years, \vhich expired on the 4th
of December, 1707. In the lease there was no covenant that the
tenant should have his off-going crop. In the seed-time, before
the expiration of the term, he sowed the fallow with wheat.
The succeeding tenant obstructed him in cutting the wheat
when it became ripe, and cut and housed it himself, for his own

(a) At the summer assizes for Herefordshire, 17G9.

844 WIGGLESWORTH V. DALLISON.

use. Upon this the plaintiff bronght an action on the case, and
declared on a custom in Herefordshire for tenants to quit their
farms at Christmas or Candlemas to reap the corn sown the
preceding autumn. Yates^ Justice, held the custom could not
legally extend to lessees by d^ed, thougli it might prevail, by
implication, in the case of parol agreements. That, in the case
of a lease by deed, both parties are bound by ihc ex})rcss agree-
ments contained in it, as that the term shall expire at sue h a
day, &c. ; and, therefore, all implication is taken away. That,
if such a custom should lie set up, the Statute of Frauds would
be thereby superseded in Herefordslure (^ci). iVccordingly the
plaintiff did not recover on the custom, although on another
count in trover, in the same declaration, he had a verdict."

A rule to show cause was granted.

The case Avas argued on Tuesday, the 8th of June, by HilU
Serjeant, Chambre and Dayrell., for the plaintiff, and Cust^
Baldwin, Balfjuy, and G-ough, for the defendants ; Avhen tliree
objections were made on the part of the defendants, viz.; 1.
That the custom was unreasonable. 2. That it was uncertain.
3. That, as had been contended on moving for the rule, it was
repugnant to the deed under which the plaintiff had held.

For the plaintiff it Avas argued. 1. That it was not an un-
reasonable custom, because, without an express agreement, or
such a custom as this, there could be no crop the last year of a
term, but the tenant would not sow if he could not reap, and
the landlord would not have a right to enter till the expiration
of the term. That it was for the advantage of the public as
much as customs for turning a plough or drying nets, on
another person's land, which had been held to be good (6).
That it bore a great analogy to the right of emblements, and
was founded on the same principle, namely, the encouragement
of agriculture. It Avas not prejudicial to any one ; not to the
landlord, because without it his land must be unemployed and
unproductive for a Avhole season ; nor to the succeeding tenant,
because he would have his turn at the end of his term. 2.
That it was sufficiently certain, by the reference to the residue

(rt) Qu. This argument seems such a custom, it miglit be said tliat

more applicable to parol leases, be- this would be repugnant to the Stat-

cause, if a parol lease for three ute of Frauds,
years could be extended in some (5) Vide Davis, 32 b.

degree for half a year longer by

WIGGLESWORTH V. DALLISOX. 845

of the lands not sown, and to the course and usage of hus-
ban(hy in the parish. This is as much certainty as the nature
of the subject will admit of ; for, if it had been that so many
acres might be sown ami reaped, that would have been incom-
patible with those variations in the proportion of ploughed
land, which arise, at different times, from circumstances in the
course of cultivation and husbandry. Reasonable is an epithet
which sufficiently qualifies the extent of customs, and is gen-
erally used in pleading them ; as with regard to customary
fines paid to the lord of a manor, estovers prescribed for by a
party to be taken for the use of his house, &c. In the case of
Bennington v. Taylor^ reported in Lutwyche (a), where the
defendant, in an action of trespass, had pleaded a right to dis-
train for twelve pence for stallage, due by prescription, for the
land near every stall in a fair, and on a motion in arrest of
judgment, it was objected, that the prescription was uncertain,
and therefore void, the quantity of land not being ascertained,
the court held it to be certain enough, because the quantity
was to be ascertained by the common usage of the fair. In all
such cases, whether the quantity or amount is in truth reason-
able or not, is for the jury to decide. 3. That the circumstance
of the plaintiff's lease in this case having been by deed, made
no difference. There was no agreement contained in the deed,
that the defendant Avould depart from the custom, although
the parties must have known of it when the lease was exe-
■c-.:ed. He did not claim under any parol contract express or
implied ; and, therefore, the argument of repugnancy did not
apply ; and the Nisi Prius case which had been cited, went
upon mistaken reasoning. Hill^ Serjeant, admitted that he
knew of no instance in the Reports, of a similar custom to this,
in the case of freehold property ; but he said that there were
several with regard to copyholds that went much farther ; and
he cited Eastcourt v. Weekes (5), where a custom, that the
executors and administrators of ever}^ customary tenant for
life, if he should die between Christmas and Lady-day, should
hold over till the IMichaelmas following, is stated on the plead-
ings (c) ; and no objection taken to it on the argument of the
case.

(a) C. B., E. or T. 12 W. 3; 2 (c) It is found by the special ver-
Lutw. 1517, 1519. diet, the action being ejectment.

(b) T. 10 W. 3; 1 Lutw. 799, 801.

846 WlGGLESWOllTII V. DALLISON.

For the defendant were cited, Grantham v. Hatoly (a) ;
^YMte V. Saioyer (l>'), in which last case a custom for a lord of
a manor " to have connnon of pasture in all the lands of his ten-
ants for life or years," which had heen pleaded in justification
of a trespass in the land of a tenant for years, was held to be
void and against law, for that such a privilege is contrary to
the lease, being part of the thing demised, and different from
a prescription to have a heriot from every lessee for life, be-
cause that is only collateral (c). A case relied on by Homjh-
ton^ Justice, in White v. Sayer ((?), in whicli he said the court
had decided that a custom for lessees for years to have half a
year after the end of their term, to remove their utensils, Avas
void, as being against law ; Startup v. Dodderidye (e), where
the court refused to grant a prohibition, on the suggestion of a
modus " to pay, uj)on request, at the rate of two shillings for
every pound of the improved yearly rent or value of the land,"
because the yearly rent or value was variable and uncertain :
bailor, qui tarn v. Scott (/), wheie a custom having been found
by a jury, " that every housekeeper in the parish of Wakefield
having a child born there, should, at the time when the mother
was churched, or at the usual time after her delivery when she
should be churched, pay tenpence to the vicar," the court, on
a motion in arrest of judgment, determined that the custom
was void, being, 1. Uncertain, because the usual time for
women to be churched was not alleged (^). 2. Unreasonable,
because it obliged the husband to pay if the woman was not
churched at all, or if she removed from the parish, or died
before the time of churching : Carleton v. Brightwell (A),
where the defendant, on a bill of tithes, set up a modus that
" the inhabitants of such a tenement, with the land usually
enjoyed therewith, should pay such a sum for tithe corn," and

(a) T. 13 Jac. ; 1 Hob. 132. That {b) B. R. M. 10 Jac. 1 Palm. 211.

case, if at all applicable, seems to (c) Cites 21 H. 7, 1-1.

me to malve for tlie plaintiff. It is {d) B. R. M. 10 Jac. 1 Palm. 211.

curious in one respect, viz., tliat the (e) E. 4 Ann.; 2 Ld. Raym. 1158;

question was brouglit on in an action 2 Salk. 657; 1 Mod. GO.
of debt on a common bond condi- (/) E. 2. G. 2; 2 Ld. Raym. 1258.

tioned for the payment of 201 to the {g) In tliat case the custom, as

plaintiff if a certain crop of corn did suggested, did not refer to tlie usage

of riglit belong to him ; or, in otlier of the parish,
words, if the question of law was in (/i) Cauc. T. 1728 ; 2 P. W. 462.

his favour.

WIGGLESWORTH V. DALLISON. 847

it was held by the Master of the rolls to be void for uncer-
tainty ; Harrison v. Sharp (a), where a modus that, '" when any
of the inclosed pastures in a certain vill were ploughed and
sown with corn or grain of any kind, or laid for meadow, and
mown and made into hay, tithes in kind were paid to the
rector, but when eaten and depastured, then the occupier paid
to the vicar one shilling in the pound of the yearly rent or
value thereof, and no more, upon some day after Michaelmas
yearly," was held void, on the authority of /Startup v. Dod-
deridge ; Wilkes v. Broadbent (5), where the Court of Common
Pleas, and afterwards, on error brought the Court of King's
Bench, held a custom found by verdict, " for the lord of a
manor, or the tenants of his collieries who had sunk pits, to
throw the earth and coals on tlie land near such pits, such
land being customary tenement and part of the manor, there
to continue, and to lay and continue wood there for the neces-
sary use of the pits, and to take coals so laid, away in carts,
and to burn and make into cinders coals laid there, at their
pleasure," to be void, because, among other reasons, the word
near was too vague and uncertain ; Oland v. Burdwiek (c),
where a feme copyholder durante viduitafe, having sowed the
land, and then married, it was determined that the lord should
have the corn, upon the principle, that when the interest in
land is determined by the act of the party, he shall not have
the crop : an anonymous case in Moore (f?), where it was held,
that a custom " that lessee for years should hold for half a year
over his term," was bad ; Boe, lessee of Bree v. Lees (e), where,
in an ejectment to recover a farm of about sixty acres, of
which fifty-one were inclosed, and nine lay in certain open
fields, a special case was reserved, which stated a custom, " that
when a tenant took a farm, in which there was any open field,
more or less for an uncertain term, it was considered as a hold-
ing from three years to three years ; " and though the court
decided against the custom on other grounds, yet, by their
reasoning, it clearly appeared that they thought it void for
uncertainty, because the quantity of open ground was not as-
certained, and one rood might determine the tenure of 100

(rt) T. 1724; Bmib. 174. (d) H. 3 Ed. 6; Moore 8, pi. 27.

(b) B. R. E. 18 G. 2, 2 Str. 1224. (e) C. B. M. 18 G. 4. Since re-

848 WIGGLESWORTH V. DALLISON.

acres of land inclosed. Besides the above authorities (a), the
case before Yates, Justice, was much relied on. It Avas ad-
mitted, that, in cases where the usual crop of the country is
such, that it cannot coni^ to maturity in one year, a right to
hold over after the end of the term, in a parole demise, may be
raised by implication ; as where saffron is cultivated, in Carrtr
hridgeshire ; liquorice, near Pontefraet ; or tobacco, which for-
merly used to be planted in Lincolnshire ; but it was contended,
that, in such cases, a lease by deed would preclude such impli-
cation, as the parties must be supposed to have described all
the circumstances relative to the intended tenure in the writ-
ten instrument. Such a custom as that set up, in the present
case, could not, it was said, be of sufficient antiquity with
respect to leases by deed, as, in the time of ' Richard I., and
long afterwards, tenants had no permanent interest in tlieir
lands ; or, if there could be such a custom, the plaintiff's lease
could not be within it, because the custom must have ai)plied
to the 1st of May, old style, and this lease was made and com-
menced after the alteration was introduced by 24 Geo. 2, c.
23 (6).

The Court took time to consider ; and this day, Lord Mans-
field delivered their opinion as folloAVS :

Lord Mansfield. — We have thought of this case, and we are
all of opinion, that the custom is good. It is just, for he who
sows ought to reap, and it is for the benefit and encouragement
of agriculture. It is, indeed, against the general rule of law
concerning emblements, which are not allowed to tenants who
know when their term is to cease, because it is held to be their
fault or folly to have sown, when they knew their interest
would expire before they could reap (c). But the custom of a
particular place may rectify what otherwise would be impru-
dence or folly. The lease being by deed does not vary the
case. The custom does not alter or contradict the agreement

(a) 4 Co. 51 b; 1 Roll. Abr. 5G3, of it, as from the errors in the for-

pl. 9, et Co. Litt. 55, were also cited mer method of computation the nom-

for the general principles concerning inal day was continually deviating, by

customs and emblements. degrees, from the natural day.

(6) The new style commenced the (c) [See 14 & 15 Vict. c. 25, s. 1,

1st of January, 1753. But if this ar- giving the tenant in lieu of erable-

gument were admitted in its full ex- ments a right to occupy until the end

tent, no custom could exist where a of the current year of his tenancy.]
certain day of the month made part

WIGGLESWORTH V. DALLISON". 349

in the lease ; it only superadds a right wliich is consequential
to the taking, as a heiiot may be due by custom, although not
mentioned in the grant or lease (a).

TJie rule discharged (F).

Few questions are of more frequent practical occurrence tlian tliose which
involve the adniissil)ility of parol evidence of custom and usa,<ie for the pur-
pose of annexiui^ incidents to, or explaining- the meaning of. written con-
tracts. In one of the later cases on the subject, the following luminous
account of this head of tlie law was given by Parke, B., delivering the
judgment of the Court of Exchequer. 1 M. & W. 474.

" It has long been settled," (said his lordship,) " that in commercial trans-
actions extrinsic evidence of custom and usage is admissible to annex inci-
dents to written contracts in matters with respect to which they are silent.
The same rule has also been applied to contracts in other transactions of life,
in which known usages have been established and prevailed ; and this has
been done upon the principle of presumption that in such transactions, the
parties did not mean to ex2n'ess in writing the lohole of the contract by xohich they
intended to he bound, but to contract icith reference to those knoicn usages.
AVhcthcr such a relaxation of the common law was wiselj' applied where
formal instruments have been entered into, and particularly leases under seal,
may well be doubted ; but the contrary has been established by svich authority,
and the relations betAveen landlord and tenant have so long been regulated
upon the supposition that all customary obligations not altered by the con-
tract are to i-emain in force, that it is too late to pursue a contrary course;
and it would be productive of much inconvenience if this practice were now
to be disturbed. The common law, indeed, does so little to prescribe the rela-
tive duties of landlord and tenant, since it leaves the latter at liberty to pur-
sue any course of management he pleases, provided he is not guilty of waste,
that it is by no means surprising that the court should have been favourably

(«) Vide Doe v. Snowden, C. B. M. contained and set forth, &c., is a cus-
19 Geo. 3, 2 Black. 1225, where it is torn void in law, and is contrarj'^ to
said b}' the court, that if there is a and inconsistent with the said in-
taking from Old Lady-daji- (5th April), denture of lease in the said replica-
the custom of most countries would tion mentioned." The case was ar-
entitle the lessee to enter upon the gued at Serjeants' Inn, before the
arable at Candlemas (2nd of Fcbru- Judges of C. B., and the Barons of
ary), to prepare for the Lent corn, the Exchequer, by Balguy, for the
Avithout any special words for that plaintiff in error, and Chambre for
purpose, i.e. in a written agreement the defendant. The objection to the
for seven years ; for the court were reasonableness of the custom was
speaking of such an agreement. abandoned. In T. 21 G., (27th June,

(b) Judgment was accordinly en- 1781,) Lord Loughborough delivered

tered for the plaintiff, upon which a the unanimous opinion of the Court

writ of error was brought in the Ex- of Exchequer Chamber, that the cus-

chequer Cliamber, and the defendant tom was good, and the judgment was-

assigned for errors, " that the custom affirmed.

850 WIGGLESWORTH V. DALLISON.

inclined to the introduction of those rej^nlations in the mode of cultivation,
which custom and usage have established in each district to be the most
beneficial to all parties.

"Accordingly, in Wir/glesioorth v. Z>rt//ison, afterwards atlh-nn-d f>n a writ
of error, the tenant was allowed an away-going crop, tliough there was a
formal lease under seal. There the lease was entirely silent on the subject
of such a right; and Lord Mansfield said the custom did not alter or contra-
dict the lease, but only added something to it.

"The question subsequently came under the consideration of the Court of
King's Bench in Senior v. ArmUaijc, reported in Mr. Holt's .V/.s/ Prius Cases,
p. 197. In that case, which was an action by a tenant agahist his landlord
for a compensation for seed and labour, under the denomination of tenant-
right, Mr. Justice Bayley, on its appearing that there was a written agree-
ment between the parties, nonsuited the plaintiff. The court afterwards set
aside that nonsuit, and held, as appears by a manuscript note of that learned
Judge, that though there was a written contract between landlord and tenant,
the custom of the country would still be binding, if not inconsistent with
the terms of such written contract; and that, not only all common obliga-
tions, but those imposed by custom, were in full force where the contract
did not vary them. Mr. Holt appears to have stated the case too strongly
when he said that the court held the custom to be oi)erative, ' unless the
agreement in express terms excluded it;' and pr()l)ably he has not been (juite
accurate in attributing a similar opinion to tlie Lord Ciiief Baron Thompson,
who presided on the second trial. It would appear that the court held that
the custom operated, unless it could be collected from the instrument, either
expressly or impliedly, that the parties did not mean to be governed by it.

" On the second trial, the Lord Chief Baron Thompson held that the cus-
tom prevailed; although the written instrument contained an express stipula-
tion that all the manure made on the farm should be spent on it, or left at
the end of the tenancy, without any compensation being paid. Such a stipu-
lation certainly does not exclude by implication the tenant's right to receive
a compensation for seed and labour.

" The next reported case on this subject is Wehh v. Plummer, 2 B. & A.
746, in which there was a lease of down lands, with a covenant to spend all
the produce on the premises, and to fold a flock of sheep upon the usual
part of the farm; and also, in the last year of the term, to carry out the
manure on parts of the fallowed farm pointed out by the lessor, the lessor
paying for the fallowing land and carrying out the dung, but nothing for the
dung itself, and paying for grass on the ground and threshing the corn.
The claim was for a customary allowance for foldarjc (a mode of manuring
the ground) ; but the court held, as there was an express provision for some
payment, on quitting, for the things covenanted to be done, and an omission
of foldage, the customary obligation to pay for the latter was excluded. No
doubt could exist on that; the language in the lease was equivalent to a
stipulation that the lessor should pay for the things mentioned, and no more.

" The question then is, whether from the terms of the lease now under
consideration, it can be collected that the parties meant to exclude customary
allowance for seed and labour."

In the case from which the above is extracted, viz., Hiitton v. Warren, 1 M.
& W. 466, a custom by which the tenant, cultivating according to the course
of good husbandry, was entitled, on quitting, to receive a reasonable allow-
ance in respect of seed and labour bestowed on the arable land in the last

WIGGLESWOPvTH V. DALLISON. 851

year of his tenancy, and was bonnrl to leave the manure for the landlord, if
he -would purchase it, was held not to be excluded by a stipulation in the
lease that he would consume three-fourths of the hay and straw on the farm,
and spread the manure arising therefrom, and leave such of it as should not
be so spread on the land, on receiving a reasonable price for it.

From the above luminous judgment of Baron Parke it may be collected,
that evidence of custom or usage will be received to annex incidents to
written contracts on matters witli respect to which they are silent.

1st. In contracts between landlord and tenant.

2nd. In commercial contracts.

3rd. In contracts in other transactions of life, in which known usages
have been established and prevailed.

But that such evidence is only receivable when the incident which it is
sought to import into the contract is consistent with the terms of the written
instrument. If inconsistent, the evidence is not receivable, and this incon-
sistencj'^ maj'^ be evinced, —

1st. Bj"^ the express terms of the written instrument.

2nd. By implication therefrom. [See the above rules cited with approval
by Blackburn, J., in Myers v. Sari, 3 E. & E. 306.]

With respect to the first class of cases in which the evidence has been
received, viz., that of contracts between landlord and tenant, that is so
thoroughly discussed in Hntton v. Warren, part of the judgment in which is
above set out, and in WiggJesvorth v. DalUson, the principal case, that it
seems unnecessary to say more on tliat head of the subject. See Holding v.
Pigott, 7 Bing. 465; Boberts v. Barker, 1 C. & M. 803; Hughes v. Gordon, 1
Bligh. 287; Clinam v. Cooke, 2 Sch. & Lef. 22; White v. Sayer, Palm. 211;
Furley v. Wood, 1 Esp. 198; Doe v. Benson, 4 B. & A. 588. "Where there is a
custom to pay for fallows, &c., and no incoming tenant, there is an implied
contract on the part of the landlord to pay according to the custom, Faviell v.
Gaskoin, 7 Exch. 273. [In Muncey v. Dennis, 1 H. & N. 216, a custom of the
country binding the incoming tenant to pay the outgoing tenant for straw
left on the farm, was held not to be excluded by a provision in the lease to
the outgoing tenant that all straw should during the term be consumed, and
the manure used, on the premises. In Tucker v. Linger, 8 App. Cas. 508 ; 52
L. J. Ch. 941, a custom for a tenant to sell flints turned up on the surface of
the land and removed in the course of good husbandry, was held a reasona-
ble custom, and one not inconsistent with the tei'ms of the lease, which pi'o-
vided that "the lessor reserved, inter alia, all mines and minerals, sand,
quarries of stone, brick-earth, and gravel-pits, with liberty to enter to dig,
take, convert, and carry away the same, doing no unnecessarj' damage." A
custom not of the countr\% but prevalent between the owner and tenants of a
particular landed estate, is not binding on a tenant who becomes such with-
out notice of its existence: Wo7nei'sley v. Dally, 26 L. J. Exch. 219. As to
the evidence of conti'act between the outgoing and incoming tenant to pay
_ for tillages at a valuation, and the right of the latter to pay the amount of
such valuation to the landlord for rent due from the outgoing tenant, see
Stafford v. Gardner, L. R. 7 C. P. 242. A custom making the incoming tenant
alone liable to the outgoing tenant, and exempting the landlord from liability,
though proved to exist in fact, Avas held bad in law as unreasonable. Brad-
burn V. Foley, 3 C. P. D. 129, 47 L. J. C. P. 331. That a six months' notice to
quit must bj^ custom be from feast day to feast day irrespective of the num-
ber of days intervening, see Morgan v. Davies, 3 C. P. D. 260.]

g52 WIGGLESWORTH V. DALLISON.

With respect to contracts commercial, it has been long established that
evidence of a usaxje of trade applicable to tlie contract, and whicli the parties
making it knew, or may be reasonably presumed to have known, is achnissi-
ble for the purpose of importing terma into the contract respecting which the
vpritten instrument is silent.

[An objection has been raised that to admit evidence of a usage in the case
of a contract required by the 17th section of the Statute of Frauds to be in
writing would be to contravene that statute by introducing into the contract a
term not included in the written memorandum of it. But the point was dis-
posed of in Ilumfrey v. Dale, E. B. & E. 1004, and see Wilson v. Hurt, 7
Taunt. 295.

It was laid down in foniier editions of these notes that] the words " nsarje
of trade " are to be understood as referring to a particular usage to be estab-
lished by evidence, and perfectly distinct from that general custom of mer-
chants, which is the universal established law of the land, which is to be
collected from decisions, legal principles, and analogies, not from evidence
in pais, and the knowledge of which resides in the breasts of the judges.
See Vallejo v. Wheeler, Lofft. 631 ; Eclie v. E. I. Company, 1 Wm. Black, 299,
2 Burr. 121G; [Brandao v. Barnett, 3 C. B. 519, 530; Siise v. Pompe, 8 C. B.
N. S. 538; Crouch v. CrMit Fonder, L. R. 8 C. P. 374, 42 L. J. Q. B. 183;]
sed vide Haille v. Smith, 1 B. & P. 503, in which evidence of the general cus-
tom of merchants was received; [and the remarks of Cockburn, C. J., in
delivering the judgment of the Exchecjuer Chaml)er in Goodicin v. lioharts,
L. R. 10 Ex. at pp. 34(), 356, 44 L. J. Ex. 57, 157.]

This distinction, indeed, between tlie general custom of merchants, which
is part of the law of the realm, and the particular usages of certain particu-
lar businesses, was not, it seems, so clearly marked in former times as it is
now: thus we find Buller, Justice, saying, 2 T. R. p. 73, that "within the
last thirty years (his lordship spoke in 1787) the commercial law of this
country has taken a very different turn from what it did before. Before that
period we find that, in courts of law, all the evidence in mercantile cases was
thrown together; they were left generally to a jury, and produced no estab-
lished principle. From that time we all know the great study has been to
find some certain general principles which shall be known to all mankind ;
not only to rule the particular case then under consideration, but to serve as a
guide for the future." [The subject was, however, after full consideration,
thus dealt with by Cockburn, C. J., in delivering the judgment of the Court
of Exchequer Chamber in Goodvnn v. Robarts, L. R. 10 Ex. at p. 346, 44 L. J.
Ex. 162. "It is true," says his lordship, *' that the law mei'chant is some-
times spoken of as a fixed body of law, forming part of the common law,
and, as it were, coeval with it. But, as a matter of legal history, this view is
altogether incorrect. The law merchant thus spoken of with reference to
bills of exchange and other negotiable securities, though forming part of the
general body of the lex mercatorin, is of comparatively recent origin. It is
neither more nor less than the usages of merchants and traders in the difler-
ent departments of trade, ratified by the decisions of courts of law, wiiich,
upon such usages being proved before them, have adopted them as settled
law, with a view to the interests of trade and the public convenience, the
court proceeding herein on the well-known pi'inciple of law that, with refer-
ence to transactions in the different departments of trade, courts of law, in
giving effect to the contracts and dealings of the parties, will assume that the
latter have dealt with one another on the footing of any custom or usage

WIGGLESWOPvTH V. DALLISON. 853

prevailing generally in the particular department. By this process what
before was usage, only unsanctioned by legal decision, has become engrafted
upon or incorporated into the common law, and may thus be said to form
part of it." On appeal, the last cited judgment was affirmed in the House of
Lords, 1 App. Cas. 47G, though the meaning of the phrase, the " law mer-
chant," was not spcciallj' adverted to in the opinions then delivered by the
noble loi'ds. It must not be taken that when a usage has once been proved
as a matter of fact, it is to be in all subsequent cases judicially noticed as a
matter of law. See Southioell v. Bowditch, in C. A. 1 C. P. D. 374, 45 L. J. C.
P. 374, 630; " but," says Lord Justice Mellish, in Ex parte Poicell, 1 Ch. D.
50G, " there is no doubt that a mercantile custom may be so frequently proved
in courts of common law, that the courts will take judicial notice of it, and
it becomes part of the law merchant." And accordingly in Craiccour v.
Salter, 18 Ch. D. 53, and Ex parte Turquand, 14 Q. B. D. G3G, 54 L. J. Q. B.
242, the C. A. took judicial notice of the custom of hotel keepers to hire fur-
niture so as to exclude the operation of the reputed ownership clause in the
Bankruptcy Act. And see also the observations of Brett, L. J., Lohre v.
AitchUon, 3 Q. B. D., at p. 562, as to the meaning attached by often proved
custom to various clauses in a Lloyd's policy. At what peiMod or by what
process the transformation takes place it is not easy precisely to determine.
In Alexander v. Vanderzee, L. R. 7 C. P. 530, followed in Ashford v. Bedford,
L. R. 9 C. P. 20, 43 L. J. C. P. 57, a question was left to the jury as to the
mercantile meaning of " For shipment in June and (or) July" apart from any
usage. See the former case commented upon in Bulges v. Shaml, 2 App. Cas.
455, 46 L. J. Q. B. (H. L.) 561. See also Birch v. Depeyster, 4 Camp. 385.]

With regard to particular commercial usages, evidence of them is admissible
either to ingraft terras into the contract, or to explain its terms.

[In the first of these two classes come the] cases concerning the time for
which the underwriters' liability in respect of the goods shall continue after
the arrival of the ship. Noble v. Kennaicay, Dougl. 510, and see the observa-
tions on this case in Ougier v. Jennings, 1 Camp. 503, n. ; Moon v. Gtiardians
of Witney Union, 3 Binn. N. C. 817. See further Bottomley v. Forbes, 5
Bing. N. C. 123; Vallance v. Deicar, 1 Camp. 403, et notas ; Cochran v.
Retbiiry, 3 Esp. 121; Birch v. Depeyster, 1 Stark. 210; 4 Camp. 385; Don-
aldson V. Forster, Abb. on Shipp. part 3, cap. 1 ; Baker v. Payne, 1 Ves. jun.
459; Raitt v. Mitchell, 4 Camp. 146; Lethulier's Case, 2 Salk. 443 ; Bowman
V. Horsey, 2 M. & Rob. 85 ; [Allan v. Sundius, 1 H. & C. 123.

And as to evidence of a usage not to pay general average on deck cargo,
see Miller v. Titherington, 6 H. & N. 278 ; nor for damage caused by water
used to extinguish a fire, Stewart v. West India and Pacific Steamship Co.,
L. R. 8 Q. B. 88, 362, a usage which since this decision has, it is believed,
ceased to obtain ; to pay freight according to the measurement at the port of
loading: Buckle v. Knoop, L. R. 2 Ex. 125, 36 L. J. Ex. 49; for general
steamships unloading in the London Docks to unload their cargoes on the
quay: Marzelti v. Smith, 1 Cab. & El. 6. See also as to the various rules
which have been imported into the contract by a policy of marine insurance,
Lohre v. Aitchison, 3 Q. B. D. 558; Knight v. Cuteswnrth, 1 Cab. & El. 48.]

In Broion v. Byrne, 3 E. & B. 703, a case very elaborately argued at the bar,
a bill of lading which made the goods deliverable at Liverpool to order or
assigns, " he or they paying freight for the said goods five-eighths of a penny
per pound, with 5 per cent primage and average accustomed," was held not
to exclude the operation of a custom in the trade at Liverpool, by which three

854 WIGGLESWORTH V. DALLISON.

months' discount was deducted from I)iU of hiding freii;lits of goods coming
from, amongst otliers, tlie port of sliipment. In tlie niarginid note, tlie court
are said to liave held tliat tiiis custom controlled the bill of lading; perliaps
it would be better to liave said that ft was not inconsistent with it. [See per
Lord Campbell in Hall v. Janson, 4 E. & B. 510; and C'uthbert v. Cumming,
10 Exch. 809; aflirmed in 11 Exch. 405. See also Falknerv. Earle, 32 L. J.
Q. B. 124, where Brown v. B>jrne was followed.

Evidence has been held admissible of a custom in the iron trade that a
manufacturer contracting to supply iron plates must supply them of his own
manufacture: see Johnson v. liai/Hon, 7 Q. B. D. 438, 50 L. J. Q. B. 753.

In Merchant Bctnldng Co. v. Pha'nix Bessimer Steel Co., 5 Ch. D. 205, 40 L. J.
Ch. D. 418, a custom was upheld whereby, in the iron trade, where warrants
were given stating on the face of them that they were deliveraljle to the
purchasers or their assigns, by indorsement thereon, it was understood that
they were to be free from any vendor's lien for unpaid pui-chasc-money, that
they passed from hand to hand by indorsement, and conveyed to the holder a
title to the goods represented by them.

In Field v. Lelean, Exch. Cham. G II. & N. G17, 30 L. J. Exch. 108, evidence
of a usage amongst brokers that on the sales of mining shares the seller is
not bound to deliver without contemporaneous payment, was held admissible
to show that the defendant was not entitled to have the shares which he had
bought from the plaintiff delivered to him before payment, although by the
bought and sold notes payment of the price was to be made, lialf in two,
half in four months, and nothing was there said as to the time of delivery.
This case is a strong one, but it can be questioned in Dora. Proc. only. Upon
the question whether it overrules Spartali v. Benecke, 10 C. B. 212, see the
judgment of "Williams, J., in Field v. Lelean. See also Godls v. Rose, 17 C.
B. 229.]

And as to evidence of a usage to pay an agent. Hutch v. Carrington, 5 C. &
P. 471 ; for a factor to sell in his own name, Johnstone v. Ushorne, 11 A. & E.
449; [for a broker employed to buy to make himself personally responsible
for the price, Cropper v. Cook, L. R. 3 C. P. 194 ; for a J)roker employed to
purchase to become a seller in the transaction without the knowledge of his
employer, Robinson v. MoUett, L. R. 7 II. L. 802, 44 L. J. C. P. 302 ; or to buy
without making a binding contract of purchase on his employer's behalf, Ih. ;
as to an introducing broker's rights to subsequent commissions, Allan v. Sun-
dins, 1 H. & C. 123; Gibson v. Crick, lb. 142. In Raines v. Fifing, L. II. 1 Ex.
329, 35 L. J. Ex. 194, it was held, that the presumption which would have
arisen of an insurance bi-oker's authority to underwrite generalhj for the
defendant at Liverpool, was rebutted by the custom proved to exist at
Liverpool, by which an assurance broker's authority to underwrite is always,
or nearly always, limited to a certain sum. And, therefore, where the
defendant's broker had taken a risk in excess of his authoi'ity, the defendant
was held not liable as principal on the contract although the plaintiff, the
assured, had not been aware that the broker had exceeded his limit.

In Hum/re]! v. Dale, 7 E. & B. 266, in error, E. B. & E. 1004, it should seem
that not merely a term but a parttj, was on oral evidence of a custom added
to a contract in writing. The action was against Dale, Morgan, & Co.,
brokers, for not accepting ten tons of oil alleged in the declaration to have
been sold to them by the plaintiff, and it was held to be maintainable, first by
the Q. B. and afterwards in C. S., Martin, B., Willes, J., and Channell, B.,
dissenting. These were the facts: The plaintiff had employed T. & M.,

WIGGLESWOETH Y. DALLISON. 855

brokers, to sell the oil for him, and one Schenk employed the defendants to
Jjxiy it. The brokers met, and the sale was effected, but the only written
documents which could be produced as evidence of it were, first, a sale note
of the oil, signed by tlie defendants, which commenced thus, " Sold this day
for Jlessrs. T. & M. to our 'principals " and ended with tlie signature, *' Dale,
Morgan, & Co., brokers," and " a quarter per cent, brokerage to D., M., & Co. ; "
secondly, a sale note signed by T. & M., " brokers," and which commenced
thus: "Sold to Dale, Morffan, cC Co., for account of Mr. Humfrey" (the
plaintiff), and ended with the clause, " quarter per cent, brokerage to D., M.,
& Co., half to us." The first of these notes was sent by the defendants to T.
& ]\r., the second by T. & M. to the plaintiff. There was evidence of usage of
the particular trade that whenever a broker buys or sells witliout disclosing
his principal, he is himself personall3- liable to be looked to as buyer or seller,
and that it was in accordance with the usual practice in such cases, that T.
& i\I. liad not sent the defendants a note of the contract. The defendants
did not disclose 4heir principal till an unreasonable time after the contract
made, nor until after tender of the oil and after he had become insolvent.

The court of Q. B. held the evidence of usage to be admissiljle. They
considered tliat b3' necessary implication the defendants had in the first note
said that they had houfjht for their principals, and though the}^ said they had
sold for T. & M. the plaintiff had shown, as he miglit, that T. & M. were only
his agents. The court then proceeded to sa,v that " the plaintiff did not seek,
by the evidence of usage, to contradict what the tenor of the note primarily
imported, namely, that this was a contract which the defendants made as
lirokers. The evidence indeed is based on this : the usage can have no opera-
tion except on the assumption of their having so acted, and of there having
been a contract made with their principal. But the plaintiff, by the evidence,
seeks to show that according to the usage of the trade, and as those con-
cerned in the trade'understand the words used, they import something more ;
namely, that if the buying broker did not disclose the name of his principal
it might become a contract with him if the seller pleased. Supposing this
incident had been expressed on the face of the note, there would have been
no objection to it, as affecting the validity of the contract; for the effect of
it would only have been that the sale might be treated bj' the vendor as a sale
to the broker, unless he disclosed the name of his principal; if he did that,
it remained a sale to the principal, assuming of course, the broker's authority
to bind him."

The court admitted that in one sense the evidence varied the contract. " In
a certain sense every material incident which is added to a written conti'act
varies it, makes it different from what it appeared to be, and so far is incon-
sistent with it. If by the side of the written contract icithout, you write the
same contract icilh the added incident, the two would seem to import different
obligations and be different contracts. The truth is, that the principle on
which the evidence is admissible is that the parties have not set down on
paper the whole of their contract in all its terras, but those onhj tchich were
•necessary to be determined in the particular case by specific agreement, and
whicli of course might vary infinitely, leaving to implication and tacit under-
standing all those general and varying incidents which i uniform usage
would annex, and according to which they must in reason be understood to
contract, unless they expressly exclude them."

It is perhaps to be regretted that this judgment was not taken up to the
House of Lords. But it has been constantlj' acted upon, and seems now to

856 WIGGLESWORTH V. DALLISON.

be firmly established, though the iisage must, iu each case, be proved, South-
well V. Boioditrh, 1 C. P. Y>. 374, 45 L. J. C. P. 374, 030.

Fleet V. Murtnn, L. R. 7 Q. B. 120; 41 L. J. Q. B. 49, was a very simihir
case to Ilnnifreij \. Dale. See also Imperial Bank v. London and St. Kmlt.
Docks Co., 5 Ch. D. 195, 40 L. J. Cli. 3:55, and Bacmeister v. Fenton, Lcvij and
Co., 1 Cab. &E1. 121.

That of Hutchinson v. Tatham, L. R. 8 C. P. 482, 42 L. J. C. P. 200, seems
a still stronger one. There the defendant, acting as agent for one Lyons
with due authority to do so, effected a charter-party, which was expressed in
the body of it to be made between the plaintifl" who was a shipowner, and the
defendant as "agent to merchants." The defendant signed "as agent to
merchants." The court admitting that but for the custom the defendant
would not have been personally liable on the charter, held on the authority of
the two last cited cases tiiat evidence was admissible of a usage to make him
so liable if he did not disclose his principal's name within a rcasonal)le time.

In Wildy v. Stephenson, 1 Cab. & Kl. 3, it was endeavoured to prove a cu.s-
tom on the London Stock Exchange that a broker was personally lial)le to
his employer on a contract for the sale of shares where the name of tlie
principal was not disclosed, but the jury were unable to agree as to the exist-
ence of such a custom.

A variety of questions have been raised of late years, giving rise to no
small diversity of judicial opinion, as to how far members of the Stock
Exchange can avail themselves of its usages to relieve themselves of liability
upon contracts made there. In Grissell v. Bristoice, L. R. 4 C. P. 30, 38 L. J.
C. P. 10, the Court of Exchequer Chamber, reversing the decision of the
Court of Common Pleas, upheld a custom of the Stock Exchange whereby a
stock jobber who had purchased sliares from one of the pul)lic through a
stock broker on the Stock Exchange, was relieved from liability to take the
shares and indemnify the vendor against calls if he gave the name and address
of a nominee able and willing to take the .shares to whom they were to be
transferred, and such nominee was not objected to within ten days after the
name was given. A similar decision was given by a court of equity : Coles v.
Bristov-e, L. R. 4 Ch. 3, 38 L. J. Ch. 81. And the like was held to be the case
where the names, thougii given bond fide by the jobber, were those merely of
men of straw put forward to shield the real purcliaser : Maxted v. Paine, l»fo.
2, L. R. Ex. 132, 40 L. J. Ex. 57, diss. Cleasby, B., and Lush, J. A con-
tract, it would seem, then arises l^etween the vendor and the nominee, by
which the latter is bound to indemnify the former against calls in respect of
the shares so sold : Boioring v. Shej^herd, L. R. 6 Q. B. 309, 40 L. J. Q. B. 129 ;
Mckalls V. ^ferry, L. R. 7 H. L. 530, 733, 45 L. J. Ch. 575 : but see per Black-
burn, J., in Maxted v. Paine, No. 2, nbi sjip. It may be observed that both in
Grissell v. Bristowe, and in Bowring v. Shepherd the transfers had in fact
been accepted and the price of the shares had been paid by the transferees'
brokers though the transfers were not executed by the transferees. The
vendor has also (at any rate in equity) a right to be indemnified by the real
purchaser, who has through his broker supplied the man of straw to the job-
ber, and through him to the vendor as transferee. Castellan v. Ilohson, L. R.
10 Eq. 47, 39 L. J. Ch. 490. The jobber, however, is not discharged by the
custom where the name given Is of one who has not authorised the use of it.
Maxted v. Paine, No. 1, L. R. 4 Ex. 81, 38 L. J. Ex. 4i ; or is under disability
to contract — as an infant, Mckalls v. Merry, ubi sup.

The second subdivision above-named of cases in which evidence of com-

"WIGGLESAVORTH Y. DALLISON. g57

mercial usages is receivable, is wliere it is admitted to explain the tenns of a
contract,] as was done in Udhe v. Walters, 3 Camp. IG, by showing that the
Gulf of Finland, though not so treated by geographers, is considered by
mercantile men part of the Baltic; and in Hutchinson v. Boivker, 5 M. & W.
535, wliere it was proved that good barley and Jine barley signified in mercan-
tile usage different things. See further Bohertson v. Clarke, 1 Bing. 445;
Moxon V. Atkins, 3 Camp. 200; Cochran v. Rcthery, 3 Esp. 121 ; Chaurand v.
Anfjerstrin, Tcake, Gl ; Bold v. Bayner, 1 M. & W. 44G; Bowell v. Horton, 2
Bing. N. C. GGS.

And as to evidence, that " sold 18 pockets Kent hops at 100s." means in the
hop trade 100s. per cwt., Spicer v. Cooper, 1 Q. B. 424; that " in turn to
deliver."' in a charter-party to Algiers means at a particular spot in the port
for a particular purpose, Bohertson v. Jackson, 2 C. B. 412; [(as to the term
"to load in regular turn," see Hudson v. Clementson, 18 C. B. 213; Lawson
V. Burness, 1 H. & C. 396; Leideman v. Schxiltze, 14 C. B. 38; Kin(j v. Hinde,
12 L. K. Ir. 113) ; of the meaning of " Liverpool " in a charter-party as a port
of arrival, Norden Steam Co. v. Dempsey, 1 C. P. D. 654, 45 L. J. C. P. 764;
of " no St. Lawrence" in a policy of in.surance, Birrell v. Dryer, 9 App. Cas.
345; of " running days" iu a charter-party, Neilsen v. Wail, IG Q. B. D. 67;
that "bale" in the Gambler trade means a compressed package, weighing on
the average two cwt., Gorrisen v. Perrin, 2 C. B. N. S. 681 ; that oil is " wet"
if it contains any water, however little, Warde v. Stewart, I C. B. N. S. 88;]
to show the meaning of the description "about" so many quarters in a
delivery order, ^foore v. Campbell, 10 Exch. 323; [and " about" so many bar-
rels in a charter-party, Alcock v. Leuw & Co., 1 Cab. & El. 98] ; to explain
the sense in which the word " London" was employed, Mallan v. May, 13 M.
& W. 511 ; [that a " full and complete" cargo of sugar and molasses means
at Trinidad a cargo packed in the ordinary way there; Cuthbert v. Cumming,
10 Ex. 809, affirmed 11 Ex. 405; the meaning of " the next two months" in
the iron trade, Bissell v. Beard, 28 L. T. N. S. 740.

A question has sometimes been raised as to how far it is necessary in order
to att'ect a person with the usage of a trade or market that he should be
actually cognisant of it.

It was said in a case before the judicial committee, Kirchner v. Venus, 12
Moore, P. C. 361, that when evidence of the usage of a particular place is
admitted to add to or in any manner to affect the construction of a written
contract, it is only on the ground that the parties ivho made the contract are
both cognisant of the usage, and must be presumed to have made their agree-
ment with reference to it, and that no such presumption can arise Avhen one
of the parties is ignorant of it. And that is adopted in the marginal note as
the statement of a general rule of law. It should seem, however, that the
proposition must be restrained to subject matters like that before the court,
namely, the condition of the holder for value of a negotiable instrument
showing upon the face of it a clear right of the ordinary and usual kind
unaflected by the custom ; and the subsequent part of the judgment dwelt
upon the special circumstances as being important. In Kirchner v. Venus,
the indorsees resident in Sydney, of bills of lading, made in Liverpool, for
the carriage of goods from Liverpool by the ship " Countess of Elgin," to
Sydney, were, in an action of trover by them against the master of the ship
for having refused to deliver up the goods at Sydney unless paid freight,
held not to be bound ])y an alleged custom in Liverpool, of which the plaintiffs
were ignorant, that though by the terms of the bills the freight was payable

858 WIGGLESWOIITII V. DALLISON.

in Liverpool at a certain time after sailing, still the ship-owner, if it was not
paid, liad a lien for it at tl»e i)()rt of ilischarge. Sec some reniarlcs on tliis
case in Buckle v. Knoop, L. U. 2 Ex. V*'>, pi:r Kelly, C. B. ; and see Ilathising
V. Lainij, L. 11. 17 Eq. 02, -l.'i L. J. Ch. 233, and Norden Stram Co. v. Diinpsey,
1 C. r. D. 002 ; 45 L. J. C. P. 704, per Brett, J.]

In Sutton V. Tatham, 10 A. & E. 27, it was laid down tliat a [lerson employ-
ing a broker on the Stock Exchange, inipliedly gives him authority to act in
accordance with the rules there established, though the principal l)e himself
ignorant of them. And in BayJiffe v. Butterworth, 1 Exch. 425, Sutton v.
Tatham Avas expressly approved of by Parke, B., and llolfe, B. ; and Alder-
son, B., laid down the law generally, that " a person who deals in a particular
market must be taken to deal accoriling to the custom of that market, and
he who directs anotlier to make a contract at a particular place must be taken
as intending that tlie contract may be made according to the usage of that
place." And Parke, B., distinguished the cases of Gabnij v. Llnijd, 3 B. & C.
793, and Barthtt v. Pentlund, 10 B. & C. 760, in wiiich the usage of Lloyd's
Coffee-house was held not to be binding on persons who were not shown to
have been cognizant of, or to have assented to it, on the ground that in Ba>j-
liffe v. Butterworth, the (luestion was as to the author itij which the broker
received. [See, however, as to this distinction per Williams, J., in Sweetiny
v. Pearce, 7 C. B. N. S. 482.

In the latter case, allirmed 9 C. B. X. S. 534, 30 L. J. C. P. 10'.), tiie i)rinci-
pal was held not liound by a usage of Lloyd's of which he was ignorant, but
principally on the ground that Lloyd's is a mere private place of l)usiness and
not a general market so as to come within the above rule. See per Bovill,
C. J., Grissell v. Bristoice, L. R. 3 C. P. 127. But the court seem to have gone
also upon the ground that the usage sought to be established would, if not
known to the principal, be an unreasonable one, (see the judgment of Brara-
well, B., in Cam. Scacc.,) following in this respect the decision in Scott v.
Irving, 1 B. & Ad. 012, that a usage whicli would have the effect of making
the broker and not the underwriter tlie delator of tiie assured for a loss on a
policy of insurance, can only bind those who are acquainted with it. See
also per Fry, J., Pearson v. Scott, 9 Ch. D. 198, 47 L. J. Ch. 725, where an
alleged custom of the Stock Exchange was held bad, whereby it was con-
tended that a broker employed by a solicitor whom he knew to be an agent
could settle in account with such solicitor (otherwise than by payment) be-
hind the back of the principal. As will be presently stated more fully a cus-
tom if unreasonable is not binding ; and the knowledge of the person to be
bound may be an important element in deciding whether a custom is reason-
able or not. See per Bowen, L. J., in Perry v. Barnett, 15 Q. B. D. at p. 397.

In Robmson v. MoUett in Dom. Proc, L. R. 7 H. L. 836, 838, Lord Chelms-
ford, L. J., states the rule to be that " if a person employs a broker to
transact for him upon a market with the usages of Avhich the principal is
unacquainted, he gives authority to the broker to make contracts upon the
footing of such usages, provided they are such as regulate the mode of per-
forming the contracts, and do not change their intrinsic character." In that
case his lordship "hesitated to say that the usage in question would not
apply in the case of persons knowing of its existence, and employing a
broker to act for them in the market where it prevailed. But the usage was
of such a peculiar character, and so completely at variance with the relations
between the parties, converting a broker employed to buy into a principal
selling for himself, and thereby giving him an interest wholly opposed to his

WIGGLESWORTH V. DALLTSON". 859

duty, that he thought no person who was ignorant of such an usage could be
held to have agreed to submit to its condition, merely by employing the ser-
vices of a broker to whom the usage was known to perform the ordinary
and accustomed duties belonging to such employment."

Subject to the above qualilication, and to the custom not being unreason-
able or otherwise objectionable in point of law, the I'ule above cited and laid
down in Sutton v. Tatham, and Bityliffe v. Battencorth, has been constantly
adopted and followed. See Stewart y. Aherdein, 4 M. & W. 211; Taylor v.
Stray, 2 C. B. N. S. 175; Stray v. Bussell, 1 E. & E. 888, 29 L. J. Q. B. 115;
Greaves v. Leyrje, 2 H. & N. 216; Lloyd v. Gtiibert, 35 L. J. Q. B. per curiam;
Grissell v. Bristowe, L. R. 4 C. P. 3G; 38 L. J. C. P. 10; Duncan v. Hill, L. R.
8 Ex. 242, 42 L. J. Ex. 179. In the latter case the plaintiffs, who wei-e stock
brokers on the London Stock Exchange, had been employed by the defendant,
a non-member, to carry over certain stocks and shares from one settling day
to a later one. In the interval between the two days the plaintiffs became
defaulters, whereupon, accox'ding to the rules of the Stock Exchange, their
transactions were closed, and their accounts, including that of the defendant,
were made up at the prices current on that day, without any communication
with the defendant. It was held, in the Cam. Scacc, reversing the decision
of the Court of Exchequer, that the defendant was not liable to indemnify
the plaintiffs for the " difference " or loss caused by the closing of his account,
which had been forced on by the rules of the Stock Exchange, inasmuch as
this had been caused by the plaintiff's own default.]

In Stev:art v. Canty, 8 M. & \V. 160, a rule of the Liverpool Stock Exchange
was admitted in evidence between parties not members of it, upon a question
what was a reasonable time for the completion of a sale of shares made at
Liverpool through the agency of brokers.

[To come to cases] not falling within the head of mercantile contracts,
evidence has been received to show that by the custom of a particular dis-
trict the words " 1000 rabbits" meant 1200 rabbits, Smith v. Wilson, 3 B. &
Ad. 728 ; and see Clayton v. Gregson, 5 A. & E. 302. So in Reg. v. Stoke-iipon-
Trent, 5 Q. B. 303, an agreement in writing " to serve B. from II Nov., 1815,
to 11 Nov., 1817," at certain wages, " to lose no time on our own account,
to do our work well, and behave ourselves in every respect as good servants,"
was considered capable of explanation by a usage in the particular trade for
servants, under similar contracts, to have certain holidays and Sundays to
themselves. See Phillips v. Lines, 4 CI. & Fin. 234. Also in Grant v. ^[ad-
dox, 15 jNI. & W. 737, an agreement b}'^ the manager of a theatre to engage an
actress for " three years, at a salary of 5Z., 6?., and 11. per week in those
j'ears respectively," was explained by the usage of the theatrical profession
to mean that the actress was to be paid only whilst the theatre was open for
performance. [In Parker v. Ihhetson, 4 C. B. N. S. 346, a custom that the
yearly hiring of a clerk is determinable by a month's notice at any time, was
held not inconsistent with a prpvision in the agreement, that at the end of
the year the employer, if satisfied with the amount of business done, would
make an addition of 30/. to the stipulated salary.] So, again, in Evans v.
Pratt, 3 M. & G. 759 ; 4 Scott, N. R. 370, S. C, in a memorandum as to a race,
the run described was " four miles across a country," and evidence was
admitted to show that in sporting parlance the meaning of those words is
straight across over all obstructions without liberty to go through open gates.
So if A. and B. were to agree for a lease, it would be implied fi-om custom
that the lessor should prepare and the lessee pay for it. Grissell v. Robinson,

860 WIGGLESWOETH V. DALLISON.

3 Bing. N. C. 11. Although in general, upon a sale of property, the vendee
who is to bear the expense of the conveyance ought to prepare it. Prire v.
Williams, 1 M. & W. G; Poole v. IJill, G M. & W. 835; Stephens v. De Medina,

4 Q. B. 422. See, however, Doe cl. Clarke v. Stilxcell, 8 A. & E. 645. [As to
the liability by usage of a man about to marry to pay his wife's solicitor for
preparing her marriage settlement, see Helps v. Clapton, 17 C. B. X. S. 553,
34 L. J. C. P. 1.

In The North Staffordshire Rail. Co. v. Peek, E. B. & E. 98G, the majority of
the court held that the terms in a letter to carriers from their customer,
" Please send the marl)les not insured," were to be read "according to the
understanding of language between carriers and tlieir customers," and con-
strued as a reciuest to carry the mari)les at the customer's rislv. But tliis
decision turned upon the construction of a statute, and was reversed in the
House of Lords, 10 H. of L. Ca. 473, 32 L. J. Q. 15. 241.

As to a usage of trade to allow goods to remain witli hotel-keepers on hire,
preventing such goods from being affected l)y the order and disposition sec-
tion of the Bankruptcy Acts, see in re Blanshard, 8 Ch. D. GOl, and the cases
therein cited ; Craiccour v. Salter, 18 Ch. D. 53; ex parte Brooks, 23 Ch. D.
261; ex parte Turquand, 14 Q. B. D. 636, 54 L. J. Q. B. 242.

Whilst, however, as we have seen, evidence of custom has been very
largely admitted, tliere are numerous cases in which such evidence is inad-
missible, and tliese will now be dealt witli.

Thus] the admissibility of evidence of custom to explain tlie meaning of
a word used in any contract wluitever, is subject to tliis (pKUilication, ?'i.?.,
tliat if an act of parliament have given a definite meaning to any jiarticular
Avord denoting weight, measure, or luunber, it must be understood to have
been used with tliat meaning, and no evidence of custom will be admissil)le
to attribute any other to it; per cunam in Smith v. Wilson, 31 B. & Ad. 728;
see also Hockin v. Cooke, 4 T. R. 314; The Master of St. Cross v. Lord
Howard de Walden, 6 T. R. 338; Wing v. Erie, Cro. Eliz. 2G7 ; Xohle v. Dnr-
rell, 3 T. R. 271.

In Doe v. Lea, 11 East, 312, it was held that a lease by deed of lands since
the new style, to hold from the feast of St. Michael, must mean Xew Micliael-
mas, and could not be shown by parol evidence to refer to Old Micliaelmas.
In Farley v. Wood, 1 Esp. 198, Runn. Eject. 112, Lord Kenyon had, under
similar circumstances, admitted parol evidence of the custom of tlie country
to explain the meaning of tlie word Michaelmas : and tlie court, in Doe v.
Lea, on hearing that case cited, asked whether the holding there was l»j deed,
which it does not appear to have been; and to which it may be added, that it
appears possible that it was not even in writing.

In Doe V. Benson, 4 B. & A. 588, evidence of the custom of the country
was held admissible for the purpose of showing that a letting by parol from
Lady-day meant from Old Lady-day. The court referred to Furley v. Wood,
and distinguished that case from Doe v. Lea, on the ground that the letting
there was by deed, " whicli," said Holroyd, Justice, " is a solemn instrument;
and therefore parol evidence was inadmissible to explain the expression Lady-
Day there used, even supposing tliat it was equivocal."

It is perhaps not easy to conceive a distinction, founded on principle, be-
tween the admissibility of evidence to explain terms used in a deed, and
terms used in a written contract not under seal : for though, wlien tlie terms
of a deed are ascertained and understood, the doctrine of estoppel gives
them a more conclusive effect than those of an unsealed instrument ; yet the

WIGGLESWORTH V. DALLISON. 861

rule that parol evidence shall not be admitted to vary the written terras of a
contract, seems to applj' as strongly to a contract without a seal as with one;
while, on the other hand, it appears from the principal case of WUjylesworth
V. DalUson, without going further, that in cases Avhere parol evidence is in
other respects admissible, the fact that the instrument is under seal forms
no insuperable obstacle to its reception. [See also Abbott v. Bates, 43 L. J.
C. P. 150.]

Nor does it seem necessary, in order to pi'eveat a contradiction between
Due V. Lea and Doe v. Benson, and Furley v. Wood, to establish any such
distinction between deeds and other written instruments ; for in Doe v. Ben-
son, the letting seems not to have been in writing, so that the objection to
the admission of parol evidence, founded upon the nature of a written in-
strument, did not arise. In Furley v. Wood the letting was perhaps also by
mere parol; and though the evidence was, it is true, oflered to explain the
notice to quit, still it may be urged, that when the holding was once settled
to commence from Old Michaelmas, the notice to quit, which probably con-
tained the words, " at the expiration of your temn," or something ejusdem
generis, must be held to have had express reference to, and to be explained
by it. We must not therefore, it is submitted, too hastilj' infer that parol
evidence of custom would be receivable to explain a word of time used in a
lease in writing, but not under seal. [See, however, Rogers v. Hull Dock
Co., 3-1 L. J. Ch. 165, where the evidence Avas admitted to explain such an
agreement.]

Doe V. Lea was acted upon by the Court of Common Pleas in Smith v.
Walton, 8 Bing. 238, where the defendant avowed for rent payable " at 3Iar-
tinmas to v:it, November 23rd;" the plaintiff pleaded non tenuit ; and a hold-
ing from Old jVIartinmas having been proved, the court thought that the
words after the videlicit must be rejected, as inconsistent with the term
Martinmas, which they thought themselves bomid by statute to interpret
November 11th; that no evidence was admissible to explain the record: and
that there was, therefore, a fatal variance between it and the evidence; see
Hockin v. Cooke, 4 T. R. 314; The Master of St. Cross v. Lord Hoicard de
Wahlen, 6 T. P. 338; Kearney v. Jung, 2 B. & A. 301; Sproule v. Legge, 1 B.
& C. 16. lllogg v. Berrington, 2 F. & F. 24G.

Custom cannot alter or control the law. In ^^eyer v. Dresser, 16 C. B. N. S.
646 ; 33 L. J. C P. 289, which was an action for freight, the defendant
sought by evidence of usage, alleged to be universal in the mercantile world,
to establish a right to deduct from the amount of freight due for goods de-
livered the value of certain other goods which ought to have been but were
not delivered by the plaintifl", but the court held that "a universal usage
which is not according to law cannot be set up to control the law." See also
Goodwin V. liobarts, L. P. 10 Ex. 337, at p. 357, 44 L. J. Ex. 162; and the
judgment of Blackburn, J., in Cronch v. Credit Fonder, L. R. 8 Q. B. 386,
though the latter is to some extent qualified by that of the Exchequer
Chamber in Goodwin v. liobarts, sup. In Crouch v. Credit Fonder, L. R. 8
■ Q. B. 38G, the court point out that " where the incident" (sought to be intro-
duced by usage into a contract) " is of such a nature that the parties are not
themselves competent to introduce it by expi'ess stipulation," {e.g., to make
a modern instrument negotiable), "no such incident can be annexed by the
tacit stipulation arising from usage." See further, Seymour v. Bridge, 14 Q.
B. D. 400, 54 L. J. Q. B. 347; Xeilson v. James, 9 Q. B. D. 546, 51 L. J. Q. B.
369; Perry v. Burnett, 15 Q. B. D. 388, 54 L. J. Q. B. 466; as to how far a

862 WIGGLESWORTH Y. DALLISON.

custom of the Stock Exchange to disregard Leeman's Act, 30 & 31 Vict,
c. 29, s. 1, can be held binding.

Again,] evidence of usage, tliongh sometimes admissible to add to, or ex-
plain, is never so to var}', or to contradict, either expressly or by implication,
the terms of a Avritten instrument, Mayce v. Atkinson, 2 M. & W. 442; Adams
V. Wordley, 1 M. & W. 374; Trueman v. Lodc.r, 11 A. & E. 589; [see Ilumfrey
V. Dale, E. B. & E. 1004; Ihdchinson v. Tatham, L. R. 8 C. P. 482, 42 L. J. C.
P. 260; Norden Steamship Co. v. Dempsey, 1 C. P. D. G54, 45 L. J. C. P. 7G4 ;
The AJhambra, 6 P. D. 68, 50 L. J. P. D. 3G, though where a custom was
admitted to exist and in a charter-party the words "as customary" were
written, it was held that the custom must prevail, even though it contradicted
a printed term in the charter-party, Scrutton v. Childs, 30 L. T. N. 8. 212.]

Thus, in Yeates v. Pym, 6 Taunt. 445, in an action on a warranty of prime
singed bacon, evidence was offered of a usage in the bacon trade, that a cer-
tain latitude of deterioration called "average taint" was allowed to subsist
before the bacon ceased to answer the descrii)tlon of prime bacon. This
evidence was held inadmissible, first at Xisi Prius, by Heath, Justice, and
afterwards by the Court of Common Pleas.

In Blackett v. Royal Exchange Insiiraiice Company, 2 Tyrwh. 26G [2 Cr. & J.
244], which was an action on a policy upon " sliip, tfv,-., boat, and other furni-
ture," evidence was offered that it was not tlie usage of underwriters to pay
for boats slung on the davits on the larboard quarter; but was rejected at
Nisi Prius, and the rejection confirmed by the Court of Exchcfjucr. " The
objection," said Lord Lyndluirst, delivering judgment, " to the parol evidence
is, that it was not to explain any ambiguous words in the policy, any words
which might admit of doubt, nor to introduce matter upon which the policy
was silent, but was at direct variance with the words of the policy, and in
plain opposition to the language it used. Tluxt wliereas tlie policy imported to
be upon the ship, furniture, and apparel generally, the usage is to say that it
is not upon all tlie furniture, and apparel, Ijut upon part only, excluding the
boat. Usage may be admissible to explain wliat is doubtful, it is never
admissible to contradict what is plain." [This case, however, is mentioned
with disapproval in Myers v. Sari, 30 L. J. Q. B. 9; and Ilumfrey v. Bale,
supra.}

Hall V. Janson, 4 E. &, B. 500, was an action upon a policy of marine insur-
ance in the ordinary form, in which the interest was declared to be " on
money advanced on account of freight," and the count alleged the interest to
be in the shipowner, and that it became subject to a general average contribu-
tion : a plea to that count stating a custom of London, where the policy was
made, that insurance upon " money advanced on account of freight" should
not be liable for a general average, was held bad, the custom alleged being
inconsistent with the terms of the pollcj'. [(See, however. Miller v. Tither-
ington, G H. & N. 278.)

Where under an alleged usage of trade the underwriters on a marine policy
covering loss by jettison sought to be relieved from payment of anything
beyond the assured's own proportion of a loss of his goods which had been
jettisoned under circumstances constituting a general average, leaving him to
recover the residue from the other contributories, the court held the custom
bad as contrary to the express agreement of the parties. Dickenson v. Jar-
dine, L. R. 3 C. P. 639 ; 37 L. J. C. P. 321. See also Menzies v. Lightfoot, L. R.
11 Eq. 459.

In Ilathesing v. Laing, L. R. 17 Eq. 92, 43 L. J. Ch. 233, a custom at Bombay,

WIGGLESWORTH V. DALLISON. 863

making: it obligatory on ship captains to require tlie production of the mate's
receipt before signing the bill of lading, was held bad by Bacon, V.-C, sed
vide Schuster v. M'Krllar, 7 E. & B. 704.

In several cases alleged customs of ports to talce delivery on terms incon-
sistent with charter-parties have been held inadmissible : The Alhamhra, 6 P.
D. GS ; Ilaijton v. Incin, 5 C. P. D. 130.

In Suse V. Pompe, 8 C. B. N. S. 538, evidence was given of a usage in Lon-
don tliat on non-payment by the acceptor of a bill of exchange drawn and
indorsed in England, and payable abroad at a certain rate of exchange, the
holder is entitled at his election to recover from the drawer either the re-
exchange, or the amount which he paid for the bill. This evidence was held
inadmissil)le, as contradicting the terms of the l)ill.

In WiUnns v. Auers, 3 App. Cas. 133, 47 L. J. P. C. 1, grave doubts were
expressed as to the validity of an alleged custom to allow a fixed percentage
of 20 per cent, for exchange, re-exchange, and interest, in cases of certain
dishonoured bills, but the point was not decided.]

In Roberts v. Barker, i C. & M. 808, the question was whether a covenant
in a lease whereby the tenant bound himself not, on quitting the land, to sell
or take awaj' the manure, l)ut to leave it to be expended by the succeeding
tenant, excluded the custom of the country, by which the outgoing tenant
was bound to leave the manure, and was entitled to be paid for it. Tlie court
held that it did. " It was contended," said Lord Lyndhurst, delivering judg-
ment, "that the stipulation to leave the manure, was not inconsistent with
the tenant's being paid for what was so left, and that the custom to pay for
the manure miglit be engrafted on the engagement to leave it. But if the
parties meant to be governed l)y the custom in this respect, there was no
necessity for any stipulation, as, l>y the custom, the tenant would be bound
to leave the manure, and would be entitled to be paid for it. It was alto-
gether idle, therefore, to provide for one part of that which was sufficiently
provided for by the custom, unless it was intended to exclude the other part."
Accord. Clarke v. Royston, 13 M. & W. 752. See further, Reading v. Menham,
1 M. & Rob. 23G; IClarke v. Westrope, 18 C. B. 765]; Foster v. Mentor Life
Assurance, 4 E. & 13. 48.

[As to the meaning of the rule prohibiting a " contradiction " of the instru-
ment, see some valuable remarks in the judgment of the Queen's Bench, in
Ilumfreij v. Dale, 7 E. & B. 2GG, cited ante, p 58G, and p?r Lord Blackburn, in
Tucker v. Linger, 8 App. Cas., at p. 511. In Fleet v. Murton, L. R. 7 Q. B.
• 132, Blackburn, J., admitting his " difficulty in making out how the custom
could make the Ijroker, who was, in fact, not contracting as purchaser, liable
in the terms of the count in that case {Humfrerj v. Dale), which charged the
defendant as a purchaser," suggests that the true view of the broker's
lia])iUty under the custom is as a del credere agent, who guarantees a pur-
chaser. See Ihmifrey v. Dale, discussed in Myers v. Sari, 30 L. J. Q. B. D,
and by Jessel, M. R., in Soiithioell v. Bowditch, 45 L. J. C. P., at p. 3G1.

In Hutchinson v. Tatham, L. R. 8 C. P. 482, in which evidence of usage
. was admitted to charge the defendant as principal on a charter-party, which
he had signed " as agent for the merchants" only, Brett, J., says " the cases
have lately gone very far as to the admissibility of evidence of custom. It
is clear, however, that no such evidence can be admitted to contradict the
plain terms of a document. If evidence were tendered to prove a custom
that the defendants should be liable as principals under all circumstances,
that would contradict the document ; but it has been decided that though you

364 WIGGLESWORTH V. DALLISON.

cannot contradict a written document by evidence of custom, you may add a
terra not inconsistent witli any term of tlic contract. Wliat I appreliend, it
is liere attempted to add, is not tliat tlie defendants would be lial)!e as princi-
pals in the first instance, or under all circumstances, but that thouiih primH
facie, and in most cases the brokers are mere agents, yet if they fail to dis-
close the names of the principals within a reasonable time, they, the agents,
may on the happening of this contingency be principals. This is not, I
think, on the whole, inconsistent with the contract, and, therefore, with some
doubt, I think the evidence was admissil)le."

In Robinson v. Mollett, L. R. 5 C P. (UG, 7 Id. 84, 7 H. L. 802, 41 L. J. C. P.
65, 44 Id. 302, the plaintiff, a London tallow broker, sought to be indemnified
by the defendant against the loss upon a contract for the purchase of tallow.
The defendant had instructed the plaintiff to purchase fifty tons of tallow,
as broker, for him. The plaintitt", acting for other l)uyers as well as the de-
fendant, bought 1.50 tons. He forwarded a bought note to the defendant
for the fifty tons, and to the vendors a sold note for the 150 tons, l)nt made
no contract for the purchase of fifty tons on behalf of the defendant, on
which the latter could come forward as principal, his iMtention being to
appropriate fifty of the 150 tons to the defendant. The defenihuit refused
to take delivery of the fifty tons, and the market having fallen the plaintiff
was obliged, according to the usage of the trade, to pay the vendor the dif-
ference of price : and this loss he sought to recover from the defendant.
It was conceded that apart from usage there was no fulfilment of the de-
fendant's order for fifty tons, and he could not be compelled to take the
tallow or indemnify the plaintiff"; l)ut it was contended on l)eiialf of the
latter, that he was justified by the usage of the London tallow market,
though unknown to the defendant, in fnlfiUiug the order in this way. In the
Common Pleas, Bovill, C. J., and Montague Smitli, J., were in favour of the
usage. Willes and Keating, JJ., were of a contrary opinion, on the ground
that " the authority of the brokers was to buy as brokers for their principal,
not to sell to him. If the sale had been consummated in the course insisted
upon by the brokers, the principal would have bought them of his own
brokers and no one else. A custom of trade may control the mode of per-
formance of a contract, but cannot control its intrinsic character. No
usage unknown to the principal can justify a broker in converting himself
into a principal seller." On appeal, the Court of Excheciner Chamber was
equally divided, but the House of Lords were unanimous in holding the cus-
tom to be invalid. See also Hamilton v. Young, 7 L. R. Ir. 28!), where a
custom of the Stock Exchange authorising brokers entitled to sell their
customers' securities to take them for themselves at the price of the day,
was held unreasonable, and not binding on the customer, and McDevitt v.
Connolly, 18 L. R. Ir. 207; also Barrow v. Duster, 13 Q. B. D. C35, where a
custom in the hide trade to make the selling broker liable on a contract if he
did not disclose the name of his principal within a reasonable time, was held
inconsistent with a term in that contract l\v which disputes were to be re-
ferred to the ar))itration of the selling broker.

Terms not incidental to those expressed in the written contract cannot be
annexed to it by oral evidence of a particular usage of trade. Thus a char-
terer of a vessel for a voyage from here to China, the ship to be consigned
to his agents there, free of commission, sought in vain upon the strength of
a particular custom to add to the charter a tei'm that the agents in China
should be entitled to procure charters for the return voyage from China and

WIGGLESWORTH V. DALLISON. 865

be paid commission on tlie amount of freiglit mentioned in such cliarters,
Philips V. Briard, 1 H. & N. 211. And see Gibson v. Crick, 1 H. & C. 142;
Allan V. Snndius, Id. 123.

In Ihitcheson v. Eaton, 13 Q. B. D. 8(11, tiie plaintiffs liad bought j!:oods of
tlie defendants, who wex'e Iji-olvcrs, but on tlie face of tlie contract sold as
principals. Tlie contract contained a clause pi-ovidina; tliat " any dispute
arisiuii' on it was to be settled bj' arbitration." Tlie plaintiffs allei^ed tliat the
goods wei'e of inferior qualit}', and tlie matter liaving been referred to arlji-
tration, the arbitrators decided in favour of the defendants, on the ground
of the existence of a custom relieving them from liability if, as was the
fact, they disclosed the names of their principals. It was held by Brett,
M. R., and Bowen, L. J., diss. Frj', L. J., that in finding tlie existence of tliis
custom the arbitrators had exceeded their jurisdiction, whether the evidence
of the custom was admissible or not. In this case a jury negatived the
existence of the custom.

A custom or usage, to be binding, at any rate on those not acquainted with
it, must be reasonable, and tlie question of reasonableness is for the court.
See Co. Litt..56 b., Lcnchardt v. Cooper, 3 Ding. N. C. 99, 5 Id. 128; Tyson v.
Smith, 9 A. & E. 421 ; Gibson v. Crick, 1 H. & C. 142; Duncan v. Hill, L. R. 8
Ex. 242, 42 L. J. Ex. 179; Merry v. Xickalls, L. R. 7 Ch. 733, 7 H. L. 530, 41
L. J. Ch. 767, 45 Id. 575; Down v. City of London Brewery Co., L. R. 8 Eq.
155; Bradlmrn v. Foley, 3 C. P. D. 129, 47 L. J. C. P. 331; Pierson v. Scott, 9
Ch. D. 198, 47 L. J. Ch. 705 ; Perry v. Barnett, 15 Q. B. D. 388, 54 L. J. Q. B.
466. Where, however, in a bill of lading for goods shipped for London, it
was provided that " average, if any, should be adjusted according to British
custom," and a fire having broken out in the ship, water was poured in to
extinguish it, and injured the goods mentioned in the bill of lading; it was
held that though by British law such loss was a general average loss, still as
the practice of British average adjusters was not to allow it as such, the
parties must be ijound l)y that practice, "though it might be according to
the best opinion vicious and unreasonable ; " Stewart v. West India Steamshixt
Co., L. R. 8 Q. B. 88, 362.] When evidence of usage is admitted, evidence
may be given in reply, tending to show such usage to be unreasonable. Bot-
tomley v. Forbes, 5 Bing. N. C. 128.

As to the admissibility and effect of previous usage between the parties to
a contract, see Bourne v. Gatliffe, 11 CI. & Fin. 45; Fo7-d v. Yates, 2 M. & G.
549; 2 Scott, N. R. 645, S. C. : [Gumming v. Shand, 5 H. & N. 95, 29 L. J.
Exch. 129. And as to the evidence of usage between other parties in tlie
same trade to sliow the reasonableness of a contract, see Rowcliffe v. Leiyh,
6 Ch. D. 256, 46 L. J. Ch. 60.

Parol evidence is inadmissible to show that the parties to a Avritten con-
tract intended to exclude tlie incorporation into it of a customary incident.
Fawkes v. Lamb, 31 L. J. Q. B. 98.

As to what is sufficient evidence to establish a usage in a trade, see Mac-
kenzie V. Dunlop, 3 Macq. II. of L. C. 22; Dent v. Nickalls, 22 W. R. 218;
4.bbott V. Bates, 43 L. J. C. P. 150. Ex parte Poicell, 1 Ch. D. 501 ; 44 L. J. Ch.
122, 311. In re Witt, 2 Ch. D. 489; Willans v. Ayers, 3 App. Cas. 133, 47 L.
J. P. C. 1; Nelson v. Dahl, 12 Ch. D. 576; Wildy v. Stephenson, 1 Cab. & El.
3; Knight v. Cotesworth, 1 Cab. & El. 51, j)er Mathew, J. In Fleet v. Murton,
L. R. 7 Q. B. 126 ; 41 L. J. Q. B. 49, evidence of custom in the London colonial
market was held admissible in proof of a similar custom in the London fruit
trade.]

866 WIGGLESWORTH V. DALLISON.

Lord Eldon, in Aiiderson v. Pitcher, 2 B. & P. 1G8, expressed an opinion,
that the practice of admitting usage to explain contracts ought not to be
extended. See also the expression of the court in Trucman v. Lodcr, 11 A. &
E. 589 ; and Johnstone v. Vshornc, Ibid. 549. [But the tendencj' of the courts
appears now to be the other way. See Humfrey v. Dale, 7 E. & B. 266, E. B.
& E. 1004; Hutchinson v. Tatham, L. R. 8 C. V. 482, 42 L. J. C. P. 260.]

In Cross v. Eglin, 2 B. & Ad. 100, evidence had been ottered for tlie purpose
of showing that the plaintifls, who had contracted for " 300 quarters (more or
less) of foreifjn rye," could not, consistently with the usage of trade, be
required to receive so large an access as 45 quarters over the 300: the ques-
tion as to the admissibility of the evidence ultimately proved immaterial; but
Littledale, J., said that where words were of such general import, he should
feel much dUHculty in saying that evidence ought to be received to ascertain
their meaning. See'ieiC('.s v. Marsliall, 8 Scott, N. R. 477; 7 M. & G. 729, per
curiam. Moore v. Campbell, 10 Exch. 323 ; Bourne v. Seymour, 16 C. B. 337.
[Carter v. Crick, 4 H. & N. 412. It is not, however, necessary that the phrase
should be itself " ambiguous," /wr Blackburn, J., Myers v. Sari, 30 L. J. Q. B.
9; and see Alcock v. Leeuw, 1 Cab. & El. 98.]

It is right to observe, that though in certain cases above pointed out evi-
dence of usage is received to explain the terms used in a contract, yet, when
the jury have decided on the meaning of those terms, it is not for thern but
for the court to put a construction upon the entire contract or document.
Hutchinson v. Boioker, 5 M. & W. 535, and the judgment in Neilson v. Har-
ford, 8 M. & W. 806. IBoioes v. Shand, 2 App. Cas. 455, 462.]

Usage and custom distinguished. — The decisions Oil the sub-
ject of usages are numerous, but are not always reconcilable.
" Each case must be determined by itself, aided by such light
as may be derived from the judgments in other cases when
the facts are analagous." Steel Works v. Dewey, 37 Ohio St.
242, 250. Though custom and usage arc often used as con-
vertible terms ; yet, strictly speaking, custom is that length of
usa(je which has become law. A general custom is the com-
mon law itself, or a part of it. Walls v. Bailey, 49 N. Y. 464,
471. This distinction is also adverted to in Clark v. Baker, 11
Met. 186, 188; Morning Star ?'. Cunningham, 110 Ind. 328, 334;
Jackson v. Railroad Co., 48 Me. 147 ; Wood v. Watson, 53 Id. 300.
However, the terms are often used as synonymous. McMas-
ters V. Penn. R. R., 69 Pa. St. 374 ; Carter v. Coal Co., 77 Id.
286 ; U. S. V. Buchanan, 8 How. 83, 102, 103.

" A usage, which is also called a custom, though the latter
word has also another signification, is a long and uniform prac-
tice, applied to habits, modes and courses of dealing. It relates
to modes of action, and does not comprehend the mere adop-
tion of certain peculiar doctrines or rules of law." Chapman, J.,

WIGGLESWOETH V. DALLISON. 867

in Dickinson v. Gay, 7 Allen 35 ; Macy v. Whaling Ins. Co.,
9 ]\Iet. 354, 302. At an early day courts expressed regret at
the extension of this species of evidence ; notably Mr. Justice
Story in Donnell r. ('olumbian Ins. Co., 2 Sum. 307, 377. See
also Clark v. Baker, 11 Met. 180, 188 ; Susquehanna Fertilizer
Co. V. White, 60 Md. 4-44, 455 ; Howe v. Mutual Ins. Co., 1
Sandf. 137, 149 ; Reals v. Terry, 2 Id. 127, 130 ; Coxe v. Heisley,
19 Pa. St. 243, 240. If usages contrary to the law " were to
prevail they would be productive of misunderstanding, litiga-
tion and frequent injustice, and would be deeply injurious to
the interests of trade and commerce." Dickinson v. Gay, supra^
p. 37.

Violation or interpretation of contract. — Usage will not be
allowed to vary the terms of an express contract, embodying
in clear and positive terms the intention of the parties. Hence
it is not admissible to vary the terms of a policy of insurance.
Grace v. American Ins. Co., 109 U. S. 278 ; Franklin Ins. Co. v.
Sears, 21 Fed. Rep. 290 ; Castleman v. Southern Mut. Life Ins.
Co., 14 Bush 197, 202 ; Sterling Organ Co. v. House, 25 W.
Va. 04, 90. " There can be no doubt that, in the interpretation
of written contracts, especially those of a mercantile character,
evidence of usage is competent and frequentl}^ admitted, to
explain the sense in which particular words or phrases are
used, and to show that, as applied to the subject matter, the
language of the instruments was understood by tho parties to
have a special and peculiar meaning, differing from that which
might ordinarily be attributed to it ; especially is this true in
respect to policies of insurance. These contracts, like others
of a mercantile nature, when first introduced as subjects of
exposition in the courts of common law, contained many loose,
undefined, and indeterminate words and phrases, which, if
interpreted literall}', and without reference to the course of
trade and the customs of merchants, would have increased the
risk assumed by the insurers or abridged the indemnity secured
to the assured, contrary to the real intentions of the parties.
But it is obvions that the necessity which gave rise to the
• liberal rules which have heretofore been adopted by courts of
justice in admitting usages as explanatory of this class of cus-
toms has in great measure ceased to exist. By a long course
of judicial decisions, that which was originally indefinite and
uncertain and difficult of application in the language of the

868 WIGGLESWOKTH V. DALLISON.

instrument has become clear, determinate, and well settled.
The consequence is, that of late 3'ears, the tendency of courts
of law has been to ai)ply the rules regulating the competency
of usages to explain and interpret the language of written
instruments with great strictness, and to guard with increased
vigilance against the danger of allowing extrinsic evidence to
vary or control the Avords in wliich the parties have deliberately
expressed their meaning. ^Many of the early authorities in
England and in this country go much farther in the admission
of testimony to prove usages for the purpose of aiding in the
interpretation of Avritten contracts than woiild be deemed to l)e
reasonable or safe at the present day. We are inclined to
doubt whether in any case it would, now be deemed to be com-
petent to offer evidence to show that a description of a voyage
in a policy which is susceptible of a clear and definite exposi-
tion in conformity to the interpretation of the Avords as estab-
lished by adjudicated cases has another and different meaning
by mercantile usage from that Avhich has been so recognized
and settled." BigeloAV, C. J., in Seccomb v. Provincial Ins. Co.,
10 Allen 305, 313 ; IMacomber v. rb)ward Ins. Co.. 7 Gray 257 ;
Odiorne v. Ncav England Jns. Co., 101 Mass. 551 ; Bundiain v.
Boston Ins. Co., 139 Mass. 399, 404 ; Beer v. Ins. Co., 39 Ohio
St. 109, Ins. Co. V. Wright, 1 Wall. 456; Partridge v. Ins. Co.,
15 Id. 373; Sperry v. Springfield Ins. Co., 26 Fed. Rep. 234;
First Nat. Bank v. Lancashire Ins. Co., 62 Tex. 461 ; Franklin
Ins. Co. V. Humphrey, 65 Ind. 549 ; Park v. Ins. Co., 48 Ga. 601.
So evidence is inadmissible to vary any contract susceptible
of a plain meaning. Hartje v. Collins, 46 Pa. St. 268 ; Ware v.
Haywarcl Rubber Co., 3 Allen 84 ; Potter v. Smith, 103 j\Iass.
68; Davis v. Galloupe, 111 Id. 121 ; BroAvn v. Foster, 113 Id.
136 ; Stansbury v. Kephart, 54 la. 647 ; Smyth v. Ward, 46 Id.
339, 345; Randolph v. Halden, 44 Id. 327, 329; Phillips v.
Starr, 26 Id. 349 ; Cash v. Hinkle, 36 Id. 623 ; Stebbins v.
Brown, 65 Barb. 274 ; Polhemus v. Heiman, 50 Cal. 438 ;
Rafert v. Scroggins, 40 Id. 195 ; Atkinson v. Allen, 29 Id. 375 ;
Exchange Bank v. Cookman, 1 W. Va. 69 ; Cooke v. England,
27 Md. 14, 36 ; Groat v. Gile, 51 N. Y. 431 ; Collender v. Dins-
more, 55 Id. 200, 208, 209 ; Whitmore v. Iron Co., 2 Allen 52 ;
Schenck v. Griffin, 38 N. J. (LaAv) 462, 471 ; Stervard v. Scud-
der, 4 Zab. 96; Bigelow v. Legg, 102 N. Y. 652; Union Trust
Co. V. Whiton, 47 Id. 172, 180.

WIGGLES WORTH V. D ALLISON. 869

To this rule that usage cannot vary the terms of a written
contract, there is an exception in the case of Language which
is ambiguous, and used in different senses, or in the case of
general words used in a new, peculiar, or technical sense ;
Brown v. Brown, 8 Met. 573, 576. It is sufficient in the case of
a policy of insurance if the usage is known and generally acted
on where the contracting parties reside ; Fulton Co. v. Milner,
23 Ala. 420, 428. Cases where evidence of such usage has
been admitted are : Brown v. Brown, supra ; Coit v. Commer-
cial Ins. Co., 7 Johns. 385. See Johns. Cas. 289; Astor v.
Union Ins. Co., 7 Cowen 202 ; Macy v. Whaling Ins. Co., 9
Met. 354, 362 ; Winthrop v. Union Ins. Co., 2 Wash. C. C. 8 ;
Hinten v. Loche, 5 Hill 437 ; Allegre v. Ins. Co., 6 Harr. & J.
408 ; Allegre v. Maryland Ins. Co., 2 Gill & J. 137 ; Lawrence
V. jNIcGregor, 5 Ohio 309 ; Avery v. Stewart, 2 Conn. 69 ; see,
also, Roberts v. Button, 14 Vt. 195, 203 ; see Eyre v. Marine
Ins. Co., 5 W. & S. 116 ; S. C. 6 Whart. 247 ; Leach v. Beards-
lee, 22 Conn. 404. It will be observed that most of the above
are early cases, many of them involving the interpretation of
policies of insurance. Upon this subject, therefore, the re-
marks of Mr. Chief Justice Bigelow, in Seccomb v. Provincial
Ins. Co., supra, that the necessity of " admitting usages as
explanatory of this class of customs has in great measure
ceased to exist," are pertinent. But even in earlier times there
was often a disinclination to extend the doctrine. In Gordon
V. Little, 8 S. & R. 533, Gibson, J., dissented from the opinion
of the miijority of the court, that evidence of usage was ad-
missible to explain the meaning of " inevitable dangers of the
river " in a bill of lading, and that river boatmen assume a
responsibility different from that of common carriers. And
the dissenting ()[)inion is now law; Coxe v. Heisley, 19 Pa. St.
247. See Wetherill v. Neilson, Id. 453 ; Dean v. Swoop, 2
Binn. 72; Sam[)son v, Gazzam, 6 Port. 124. In Sleglit v.
Rhinelander, 1 Johns. 192, evidence of the commercial mean-
ing of " sea letter " was held inadmissible ; but see S. C. 2 Id.
531. Other early cases which hold that usage is inadmissible
to control the clear meaning of a contract are : Macomber v.
Parker, 13 Pick. 176, 182, holding that " it would only prove
how other parties had considered similar contracts " ; Rice v.
Codman, 1 Allen 377 ; Ripley v. Crooker, 47 Me. 370 ; Keener
V. Bank of U. S., 2 Pa. St. 237 ; Cox v. Peterson, 30 Ala. 612 ;

870 WIGGLESWORTH V. DALLISON.

Insurance Co. v. Wright, 1 Wall. 45G ; Barlow v. Lambert, 28
Ala. 710; Werner v. Footman, 54 Ga. 128; Whitmore v.
Steamboat, 20 JNIo. 513 ; Chouteau v. Steamboat, Id. 519 ;
Hursh V. North, 40 Pa. St. 243; The Sch. Reeside, 2 Sum.
568; Turney v. Wilson, 7 Yerg. 340; McArthur v. Sears, 21
Wend. 194 ; Knox v. Rives, 14 Ala. 249, 259 ; Aymar v. Astor,
6 Cow. 266 (Savage, C. J., dissenting) ; Rankin v. Am. Ins. Co.,
1 Hall. 619 ; Lewis v. Thatcher, 15 Mass. 431 ; Homer v. Dorr,
10 Id. 266 ; Barksdale v. Brown, 1 N. & McC. 517 (Cheeves, J.,
dissenting) ; Allan v. Dykers, 3 Hill 593 ; Otsego Bank v.
Warren, 18 Barb. 296 ; Gross v. Criss, 3 Gratt. 262. Although
the tendency is to reject evidence of usage in violation of the
terms of express agreements, yet the later decisions often favor
its admission in doubtful cases. In Burnham v. Boston iNIarine
Ins. Co., 139 Mass. 399, it was stated by Mr. Justice Field, that
" a written contract must be construed according to its terms
in their ordinary signification, unless those terms, by usage in
the business or between the parties, have a different meaning,"
and evidence was held inadmissible that, before the contract of
insurance was executed, the parties agreed to insure " outfits "
under the term " advances." But in Mooney v. Howard Ins.
Co., 138 Mass. 375, evidence was admitted in an action on a
policy against loss by fu-e on a junk-dealer's stock of " rags "
and " old metals " that, by a usage of the trade, those terms
had acquired a broader signification than commonly belongs to
them. As to the meaning of "fancy-goods and Yankee-notion
store " in a policy of insurance, see Barnum v. Merchants' Fire
Ins. Co., 97 N. Y. 188, 193. Evidence is inadmissible to change
the legal effect of a deed. Tucker v. Smith, 68 Tex. 473, or to
alter or modify the express provision of a contract for the sale
of barley; Gibney v. Curtis, 61 Mo. 192; or that when one
sells or transfers a promissory note, he is to " indorse," although
not expressed in the terms of the contract ; Paine v. Smith, 33
Minn. 495, 499, 500. Evidence has been admitted to show the
meaning of the word " day " in case of the sale of a reaping
machine with right to test it for a day ; Fuller v. Schroeder, 20
Nebr. 63. Also to show that a boat which belongs to a vessel
passes by sale, though not mentioned in the bill of sale ; The
Merrimac, 29 Fed. Rep. 157. So evidence is admissible to
show that certain terms, hardly intelligible in themselves, from
not being in ordinary use or from being used in a peculiar or

■WIGGLES WORTH Y. DALLISON. 871

technical way, have a recognized and well-known meaning in a
special trade ; Page v. Cole, 120 Mass. 37. See Whitney v.
Boardman, 118 Id. 242 ; Swett v. Shumway, 102 Id. 365 ; Miller
V. Stevens, 100 Id. 518 ; Eaton v. Smith, 20 Pick. 156 ; Daniels
V. Hudson River Ins. Co., 12 Cush. 416 ; Silberman v. Clark,

96 N. Y. 522; Harris v. Rathbone, 2 Keyes 312; Bissell v.
Campbell, 54 N. Y. 353 ; Pilmer v. Bank, 16 la. 321 ; Hibler
V. IMcCartney, 31 Ala. 501 ; Kiriball v. Brauner, 47 Mo. 398 ;
Wilbraham v. Stanley, 57 Cal. 476 ; Steyer v. Dwyer, 31 la. 20 ;
Busch V. Pollock, 41 Mich. 64 ; Bancroft v. Peters, 4 Id. 619.
It is said in the late case of Susquehanna Fertilizer Co. v.
White, m Md. 444, 454 (1886), that "it cannot be contro-
verted, that the principle has been established by adjudication,
that in commercial instruments and written contracts the usage
of a particular trade, profession, or place may be proved for
the purpose of ascertaining the meaning of certain words, the
signification of which may be doubtful. It is not to be denied
that if a word has acquired a peculiar meaning in a certain
trade or business, either local or general, that meaning will be
applied to it in the construction of written instruments affect-
ing the transactions growing out of that trade or business ;
but the fact that the word has acquired such meaning must be
distinctly proved by the adduction of satisfactory evidence ; "
Allegre's Adm'rs v. Md. Ins. Co., 2 Gill & J. 137 ; Taylor v.
Briggs, 2 Carr. & P. 525 ; Murray v. Hatch, 6 Mass. 465 ; Coit
V. Commercial Ins. Co., 7 Johns. 385.

" And it is apparent that the tendency of the American
decisions is to restrict, rather than to extend, the application of
the principle first established by the sanction of judicial author-
ity in England, and subsequently recognized and adopted in
this country." See Linsley v. Lovely, 26 Vt. 123 ; Girard
Life Ins. Co. v. Mutual Life Ins. Co., 86 Pa. St. 236; S. C.

97 Id. 15.

Another qualification of this rule arises where it is presumed
that contracts are drawn in reference to the usages which apply
to them. " Custom or usage is properly received to ascertain
and explain the meaning and intention of the parties to a con-
tract, whether written or parol, the meaning of which could
not be ascertained without the aid of such extrinsic evidence,
and such evidence is used on the theory that the parties knew
of the existence of the custom or usage and contracted in refer-

872 WIGGLES WOKTH V. DALLISON.

ence to it "; Robinson v. U. S., 13 Wall. 363. This principle is
illustrated in a great variety of commercial cases ; Warren
Bank v. Parker, 8 Gray 221; Cook v. Walsh, 9 Allen 350;
Have V. Hardy, 106 Mass. 329 ; Scudder v. Bradbury, Id. 422 ;
Howard v. Im. Co., 109 Id. 384; Porter v. Hills, Id. 114, Id.
106; Schnitzer v. Print Works, 114 Id. 123; Florence Machine
Co. V. Daggett, 135 Id. 582, 583 ; Walls v. Bailey, 49 N. Y.
464; Doaner v. Demhorn, 79 111. 131 ; Fit/.simmons v. Academy,
10 Mo. App. 595; Sontier v. Kellerman, 18 Mo. 509; Martin v.
Hall, 26 Id. 386 ; Freight Co. v. Stannard, 44 Id. 71 ; Walker
V. Barron, 6 Minn. 508; Ilinton v. Coleman, 45 Wis. 465; Steel
Works V. Dewey, 37 Ohio St. 242 ; Barker v. Ben-zone, 48 Md.
474, 492 ; Lyon v. George, 44 Id. 295 ; Hendrick v. Robinson,
56 Miss. 694; Dalton v. Daniels, 2 Hilton (N. Y.) 272; :\Ic-
Manes v. Donohue, 7 Alb. L. J. 411; White v. Fuller, 4 Hun
631 ; McPherson v. Cox, 86 N. Y. 472 ; Ragland v. Butler, 18
Gratt. 323 ; Bryan v. Spurgin, 5 Sneed 681 ; Perkins v. Jordan,
35 Me. 23 ; Folsam v. Marine Ins. Co., 38 Id. 414 ; Gleason v.
Walsh, 43 Id. 397 ; Manett v. Brackett, 60 Id. 524 ; Hursh v.
Chorth, 40 Pa. St. 241 ; Carter v. Coal Co., 77 Id. 286 ; Cooper
V. Berry, 21 Ga. 526 ; Loyd v. Wight, 20 Id. 574 ; Morton v.
Morris, 31 Id. 378 ; Garmany v. Rust, 35 Id. 108 ; Mott v. Hall,
41 Id. 117. "A person who deals in a particular market must
be taken to deal according to the known, genei'al and uniform
custom or usage of that market ; and he who employs another
to act for him, at a particular place or market, must be taken
as intending that the business to be done will be done accord-
ing to the usage and custom of that place or market, whether
the principal in fact knew of the usage or custom or not ; "
Bailey v. Bensley, 87 111. 556, 559 ; Lyon v. Culberston, 83 Id. 33 ;
United States Life Ins. Co. v. Advance Co., 80 Id. 549 ; Cothran
V. Ellis, 107 Id. 413, 419 ; Everingham v. Lord, 19 Bradw. 565,
569. See Kraft v. Fancher, 44 Md. 204 ; Barse v. Morton, 43
Hun 479 ; Bullock v. Finley, 28 Fed. Rep. 514 ; Neill v. Bil-
lingsley, 49 Tex. 161 ; Frederick v. Railroad Co., 37 Mich. 342 ;
Leach v. Beardslee, 22 Conn. 404 ; Grinman v. Walker, 9 Iowa
426; Bissell v. Ryan, 23 111. 571. See the following early
cases : Taylor v. Wells, 3 Watts 65 ; Harrington v. Mc Shane,
2 Id. 443 ; Kemp v. Coughtry, 11 Johns. 107 ; Galloway v.
Hughes, 1 Bailey 553 ; Hosea v. McCrory, 12 Ala. 350, 353 ;
U. S. V. McDaniel, 7 Pet. 3, 15 ; DeForest v. Fire Ins. Co., 1

WIGGLESWORTH V. DALLISON. 873

Hall 84 ; Ruan v. Gardner, 1 Wash. C. C. 146, 149 ; Townsend
V. Whitby, 5 Harr. 55.

In many of the above cases usage was admitted in evidence
in the absence of express contracts and of circumstances defi-
nitely fixing the legal rights of the parties. In many of them
• also, the usage was reasonably understood as forming a part of
an express contract. Williams v. Gilman, 3 Greenl. 276 ; Van
Ness V. Packard, 2 Pet. 138 ; Sewall v. Gibbs, 1 Hall 602 ; Con-
ner V. Robinson, 2 Hill (S. C.) .354. See further Alabama R. R.
V. Kidd, 29 Ala. 226 ; Dixon v. Dunham, 14 111. 322 ; Barker v.
Brace, 3 Conn. 10, 13, Ware 322 ; Chase v. Washburn, 1 Ohio
St. 252 ; U. S. V. Fillebrown, 7 Pet. 30, 50 ; Clark v. Baker, 11
Met. 186 ; Bridgeport Bank v. Dyer, 19 Conn. 136 ; Barton v.
McKelway, 2 Zab. 165, 175 ; Bank of Utica v. Smith, 18 Johns.
280; Thomas v. O'Hara, 1 Mill's Const. (S. C.) 303, 308; Con-
sequa v. Willings, 1 Pet. C. C. 172, 225: Wilcox v. Wood, 9
Wend. 349.

There is also a well-established usage in relation to the con-
tract of endorsement, the endorser being bound without per-
sonal notice. It is the usage of particular banks, as to the time
of demanding payment and giving notice, although differing
from the time fixed by the general law merchant. Bank of
Washington v. Triplett, 1 Pet. 25 ; Cookendorfer v. Preston, 4
How. 317, 326 ; Adams v. Otterbach, 15 Id. 539 ; Renner v. Bank
of Columbia, 9 Wheat. 582; Mills v. Bank of U. S., 11 Id. 431 ;
Bank of Columbia v. Fitzliugh, 1 Harr. & G. 239 ; Jones v.
Fales, 245; Lincoln Bank v. Page, 9 Id. 155; Blanchard v. Hil-
liard, 11 Id. 85 ; Pierce v. Butler, 14 Id. 303 ; Dorchester Bank
V. New England Bank, 1 Cush. 177, 188 ; Kilgore v. Buckley, 14
Conn. 363 • Whitwell v. Johnson, 17 Mass. 549 ; City Bank v.
Cutter, 3 Pick. 414 ; Chicopee Bank v. Eager, 9 Met. 583. For
some cases, see Halsey v. Brown, 3 Day 346 ; Allen v. Mer-
chants Bank, 22 Wend. 215; Van Santwood v. St. John, 6 Hill
158 ; Cliven v. Screw Co., 23 How. 421.

Contravention of rules of law. — It is laid downi as a general
proposition that usage is never admissiljle to vary or control a
general principle or rule of law^ A thorough discussion of this
subject will be found in Barnard v. Kellogg, 10 Wall. 384 and
Dickinson v. Gay, 7 Allen 29. The former was the case of a
sale of wool, and it was held that the rule of caveat emptor-
applied, evidence being inadmissible of an implied warranty of

874 WIGGLESWORTH V. DALLISON.

the seller to the purchaser that wool in bales is not falsely or
deceitfully packed. It appears that the parties also did not
know of the custom. Mr. Justice Davis said, "• It is well settled
that usage cannot be allowed to subvert the settled rules of
law. AVhatever tends to unsettle the law, and make it
different in the different communities into which the state
is divided, leads to mischievous consequences, embarrasses
trade, and is against public policy. If, therefore, on a given
state of facts, the rights and • liabilities of the parties to a
contract are fixed by the general principles of common law,
they cannot be changed by any local custom of the place
where the contract was made. In this case the common law
did not on the admitted facts imply a warranty of the good
quality of the wool, and no custom in the sale of the article
can be admitted to imply one " (p. 391). See also Irwin v. Wil-
liar, 110 U. S. 499; Allen v. St. Louis Bank, 120 U. S. 20, 39.

In Massachusetts the law is in luuinony with the above deci-
sion. Dickinson v. Gay, aupra, was the case of a sale of cases
of satinets made by sam[)les. There was in both samples and
goods a latent defect not discoverable by inspection, or until
the goods were printed, so that they were immerchantable.
The contention that there was a warranty implied from the
sale that the goods were merchantable was not entertained by
the court, but it was held that the custom that a warranty was
implied, when by law it was not implied, was contrary to the
rule of the common law on the subject and therefore void.
See Dodd v. Farlow, 11 Allen 426 ; Hedden v. Roberts, 134
Mass. 38.

Evidence is inadmissible to show a custom among brokers to
charge a fee to both parties. Commonwealth v. Cooper, 130
Mass. 285 ; Farnsworth v. Hemmer, 1 Allen 494 ; Raisin v.
Clark, 41 Md. 158. So of the practice to charge fees not in
law taxable. Celluloid Manfg. Co. v. Chandler, 27 Fed. Rep.
9 ; Cutter v. Howe, 122 Mass. 541, 546, 549 ; see Common-
wealth V. Perry, 139 Mass. 198, 201.

In New York the law is in entire harmony with the above.
Frith V. Barker, 2 Johns. 327 ; Woodruff v. Merchants' Bank,
25 Wend. 673 ; Beirne v. Dord, 5 N. Y. 95 ; Simmons v. Law, 3
Keys 219; West v. Kiersted, 15 W. D. 549; Babcock v. New
York Railroad Co., 20 Id. 477 ; Wheeler v. Newbould, 16 N. Y.
392 ; Higgins v. Moore, 34 Id. 417 ; Corn Exchange Bank v.

WIGGLESWORTH V. DALLISON. 875

Nassau Bank, 91 Id. 74 ; Case v. Perew, 34 Hun 130 ; Wright
V. Boiler, 42 Hun 77, 80. In Pennsylvania the case of Snow-
den V. Warder, 3 Rawle 101, was decided in contravention of
the principle above-stated ; but the law in that state is now in
harmony with that of Massachusetts and New York. Coxe v.
Heisley, 19 Pa. St. 247; Wetherill v. Neilson, 20 Id. 453.
Upon this subject see, also, Brown v. Jackson, 2 Wash. C. C. 24 ;
U. S. V. Buchanan, 8 How. 83, 102 ; West v. Ball, 12 Ala. 340,
347 ; Dewees v. Lockhart, 1 Tex. 535, 537 ; Rapp v. Palmer, 3
Watts 178 ; Sweet v. Jenkins, 1 R. 1. 150 ; Beckwith v. Farnum,
5 Id. 231 ; Bissell v. Ryan, 23 111. 571 ; Webster v. Granger, 78
Id. 230; Gifford v. Mc Arthur, 55 Mich. 535; Middleton v.
Heyward, 2 Nott & McC. 9, 3 Id. 121 ; Singleton v. Hilliard, 1
Strob. 203, 216 ; Blakeslee v. Directors of the Poor, 102 Pa. St.
274 ; Ingiebright v. Hammond, 19 Ohio 337 ; Antomarchi v.
Russell, 03 Ala. 356, 361 ; Garrett v. Trabuc, 82 Ala. 227, 233 ;
Ober V. Carson, 62 Mo. 209. A custom that a party having a
claim for money due upon a contract may not sue at law, is in-
valid, Manson v. Grand Lodge, 30 Minn. 509; Thompson v. Ins.
Co., 104 U. S. 252 ; Franklin Ins. Co. v. Humphrey, 65 Ind.
54 ; Spears v. Ward, 48 Id. 541 ; Wallace v. Morgan, 23 Id.
399; Bauer v. Samson Lodge, 102 Id. 262, 271. A custom which
would excuse a corporation from acts of negligence is invalid.
Chicago & Rock Island R. R. v. Harmon, 12 Bradw. 54, 61 ;
Transportation Co. v. Storey, 50 Md. 4 ; Miller v. Pendleton, 8
Gray 547. The custom of " ringing up " among brokers and
commission merchants which has been held to be valid when not
in contravention of the law is stated in Ward v. Vosburgh, 31
Fed. Rep. 12 ; Irwin v. Williar, 110 U. S. 499. Usage is not
admissible to control the rules of law as to the mode in which
a loss under a policy shall be computed. HoAvland v. India Ins.
Co., 131 Mass. 239, 252 ; Eager v. Atlas Ins. Co., 14 Pick. 141 ;
Thwing V. Great Western Ins. Co., Ill Mass. 93, 109 ; Matheson
V. Equitable Ins. Co., 118 Id. 209, 214 ; Seccomb v. Provincial
Ins. Co., 10 Allen 305. But see Fulton Ins. Co. v. Milner, 23
Ala. 420, 427.

In this connection the following words from Dickinson v.
Gay, 7 Allen 29, 36, 37 are important. In most cases where evi-
dence of a usage is admitted, the reference is " to the methods
of transacting business, and not to the mere adoption of a pecu-
liar or local rule of law, contrary to the terms of the contract

876 WIGGLESWORTH V. DALLISOX.

or to a general rule of law applicable to its construction. But
even this distinction is nice and will not reconcile all cases ;
and in many instances a usage has been sustained or rejected
on the ground that it was or was not regarded by the court as
reasonable ; and the question whether it was contradictory to
a principle of law, or to the terms or legal operation of a con-
tract, was not adverted to."

Effect on statutes. — It is a general rule that usage cannot
control or contradict a statute, but this is plainly a branch
of the law just treated. Where there is explicit statutory
regulation it prevails. Barnes v. Bakersfield, 57 Verm. 375;
Dunham v. Dey, 13 Johns. 40; Dunham v. Gould, 16 Id. 367;
Albright v. County of Bedford, 106 Pa. St. 582; Hatcher v.
Comer, 73 Ga. 418, 421 ; Osborne v. C. N. Xelson Co., 33 Minn.
285; Ingham v. Lindeman, 37 Ohio St. 218; Perkins v. Frank-
lin Bank, 21 Pick. 483; Rogers v. Allen, 47 N. II. 529; Mor-
rison V. Bailey, 5 Ohio St. 13; O'Connor v. North Truckee Co.,
17 Nev. 245, 258; Rivers v. Burbank, 13 Id. 398; Delaphme v.
Crenshaw. Tlie customary interpretation of a statute is some-
times considered. Cameron v. Bank, 37 Mich. 240; Ilelmle v.
Life Ins. Co., 61 Pa. St. 107; Governer v. Withers, 5 Giatt. 24.
And it has been held that a practical construction given to a
statute by custom is equivalent to a positive law. Commis-
sioners V. Bemting, 111 Ind. 143. Generally a measure of
weight established by statute cannot be affected by usage.
Evans v. Meyers, 25 Pa. Stat. 114; Green v. Moffet, 22 Mo.
529. But see Bonham v. Railroad Co., 13 S. C. 267. In Cali-
fornia the statutes recognize customs in regard to the location,
etc., of mining claims. Thompson v. Spray, 72 Cal. 528, 532 ;
Colman v. Clements, 23 Id. 245 ; Morton v. Solambo Co., 26 Id.
527, 534 ; Original Co. v. Winthrop Co., 60 Id. 631 ; Harvey
V. Ryan, 42 Id. 626 ; Bradley v. Lee, 38 Id. 362. Usage is no
defence to an indictment for crime. Bankers v. State, 4 Ind. 113.

Requisites of valid usage. — If otherwise unobjectionable,
usage is only admissible when certain, reasonable, and suffi-
ciently ancient to afford a presumption that it is generally
known. U. S. v. Buchanan, 8 How. 102; The Titania, 19 Fed.
Rep. 101 ; Blakemore v. Heyman, 23 Id. 648 ; Byrne v. Massa-
soit Packing Co., 137 Mass. 313 ; Phoenix Ins. Co. v. Frissell,
142 Id. 513, 515; Sterling Organ Co. v. House, 25 W. Va.
64, 96 ; Janney v. Boyd, 30 Minn. 319 ; Wilson v. Bauman, 80

WIGGLESWORTPI V. D ALLISON. 377

111. 493; Jones v. "Wagner, (SQ Pa. St. 449; Farmers' Bank v.
Champlain Co., 23 Vt. 186, 193; Munn v. Ikuvb, ±3 111. 356;
Johnson v. Railroad, 46 N. H. 213 ; I. & G. 11. R. Co. v. Has-
sell, 62 Tex. 256. If the usage is not actually known to the
contracting parties it must "be so well settled, so uniformly
acted upon, and so long continued, as to raise a fair presump-
tion that it was known to both contracting parties, and that
they contracted in reference thereto." Walls v. Bailey, 49
N. Y. 464, 474; Bank v. Erie Railroad Co., 72 N. Y. 188;
Jacob V. Storey, 48 N. H. 100; Rindskoff v. Barrett, 14 la.
101; Couch V. Watson Coal Co., 46 Id. 17; Rafert v. Scrog-
gins, 40 Ind. 195; Lamb v. Klaus, 30 Wis. 94; Castleman v.
Life Ins. (^o., 14 Bush 197; Lowe v. Lehman, 15 Ohio St. 179;
Randall v. Smith, 63 Me. 105; Isaksson v. Williams, 26 Fed.
Rep. 642, 645. A widespread and established use has at least
a tendency to show knowledge. Croucher v. Wilder, 98
Mass. 322; Howard v. Great Western Ins. Co., 109 Id. 384;
Mooney v. Howard Ins. Co., 138 Id. 375. Parties engaged
in a particular business, or persons accustomed to deal with
them, may be presumed to have knowledge of the uniform
course of such business. Hence its usages, in the absence of
agreement to the contrary, may be supposed to have entered
into the contract in relation to such business. Morning Star
V. Cunningham, 110 Ind. 328, 335; Florence Machine Co. v.
Daggett, 135 Mass. 582; Talcott v. Smith, 142 Id. 542, 544,
Rogers v. Holden, Id. 196; Fitzsimmons v. Academy, 81 Mo.
37 ; East Tennessee R. R. Co. v. Johnston, 75 Ala. 596 ; Carter
V. Coal Co., 77 Pa. St. 286; Lyon v. George, 44 Ind. 301. Gen-
erally in case of local customs actual knowledge must be
brought home to a party in order to bind him. Scott v. Meier,
56 Mich. 554 ; Flatt v. Osborne, 33 Minn. 98 ; Thompson v.
Minneapolis R. R. Co., 35 Id. 428 ; Gregg v. Garverick, 33
Ivans. 190, 193 ; Walsh v. Frank, 19 Ark. 270 ; Marlett v. Clary,
20 Ark. 251 ; Collins v. New England Iron Co., 115 :Mass. 23 :
Sawtelle v. Drew, 122 Id. 228; Stevens v. Reeves, 9 Pick.
197 ; Hermann i\ Niagara Fire Ins. Co., 100 N. Y. 411 ; Little
V. Fargo, 43 Hun 233 ; Winsor v. Dillaway, 4 Met. 221 ; Wal-
lace V. Morgan, 23 Ind. 399.

To be valid, a custom must be general, uniform, and certain.
Singleton v. Hilliard, 1 Strob. 203, 216; Potts v. Aechternacht,
93 Pa. St. 138; Bissell v. Ryan, 23 111. bm, 571; Barton v.

878 WIGGLESWOETH V. DALLISON.

McKelway, 2 Zab. 1(35, 175 ; Pevey v. Schulenburg, 33 Minn.
45, 47. The requirement tluit a usage must be reasonable is
imperative. " Perhaps there can be no better evidence of the
reasonableness of a custom than its antiquity and uninterrupted
prevalence." Baxter v. Rodman, 3 Pick. 435, 43*J. In the
following eases usages were held unreasonable. Mulliner v.
Bronson, 14 Bradw. 355; Ilaskins v. Warren, 115 Mass. 514;
St. Andrew v. Mauchaug M'f'g Co., 134 Id. 42 ; Smith v.
Wright, 1 Cai. 43 ; Reed v. Richardson, 98 Mass. 216 ; Whit-
ney V. Essen, 99 Id. 308; Farnsworth v. Harmer, 1 Allen 494;
Commonwealth v. Cooper, 130 Mass. 285 ; Stoney v. Transpor-
tation Co., 17 Hun 579; Wadley v. Davis, 63 Barb. 500 ; Ful-
ler V. Robinson, 86 N. Y. 306 ; Lehman v. Marshall, 47 Ala.
362 ; liank v. Bank, 51 Md. 128 ; Mills v. Ashe, 16 Tex. 296 ;
People V. Gold Run, &c., Co., 66 Cal. 138 ; Strong v. Railroad,
15 Mich. 206 ; Harrington v. Edwards, 17 Wis. 586 ; Lord v.
Botsford, 26 Fed. Rep. 651 ; Anewalb v. Hummel, 109 Pa. St.
271. See St. Louis R. R. Co. v. Southern Express Co., 117
U. S. ; Liverpool Steam Co. v. Saitter, 17 Fed. Rep. 695 ; Liver-
pool Steam Co. v. Saitter, 22 Id. 560 ; Harlan v. Ely, 68 Cal.
522, 527. It has been held that a usage may be shown that
gratuities or " scale moneys " are considered as part of the
compensation of hostlers at hotels. Jonsson ik Thompson, 97
N. Y. 642. Evidence of the usage of the shipper to bed the
car is admissible to explain the intention of the parties in mak-
ing a special agreement. East Tenn. R. R. Co. v. Johnston,
75 Ala. 596, 604. See, also, Kinney v. South & North Railroad
Co., 82 Id. 368 ; Stoudenmire v. Harper, 81 Id. 242. Evidence
has been admitted of shippers as to the delivery of freight for
shipment. Montgomery Railway Co. v. Kolb, 73 Ala. 396.
Some late cases in which evidence of usage was admitted are
Jones V. Haly, 128 Mass. 585 ; Florence Machine Co. v. Daggett,
135 Id. 582, 583, and cases cited; McCullough v. Hellweg,
66 Md. 269, 275; Lansing v. Johnson, 18 Nebr. 174; Brown
Chemical Co. v. Arkinson, 91 No. Car. 389; Wear v. Sanger,
91 Mo. 348, 356 ; Scudder v. Ames, 89 Id. 496, 508 ; Tibby v.
Missouri Pacific R. R. Co., 82 Id. 292; Smythe v. Parsons, 37
Kan. 79 ; Newhall v. Langdon, 39 Ohio St. 87, 95 ; Steel Works
V. Dewey, 37 Id. 242. It has been held in Illinois that it is
well known to all dealing in whiskey warehouse receipts, that
in purchasing them the warehouse and not the seller is looked

WIGGLESWORTH V. DALLISON. 879

to as the responsible party. ]\Iida v. Geissman, 17 Bradw. 207,
211.

Evidence. — Usage is proved by witnesses testifying of its
existence and uniformity from their knowledge obtained by
observation of what is j^ractised by themselves and others in
the trade to which it relates. But their conclusions or infer-
ences as to its effect, either upon the contract or the legal title
or rights of parties, are not competent to show the character or
force of the usage. Neither is it competent for them to testify
what is the understanding of others in regard to its effect. The
effect is to be determined In' the court, or by the jury under its
direction. Haskins v. Warren, 115 Mass. 514, 535; Gallup
V. Lederer, 1 Hun 282 ; Southwestern, &c., Co. v. Stanard,
44 :\Io. 71 ; Jewell v. Center & Co., 25 Ala. 498 ; Gary v.
Meagher, 33 Id. G30 ; Texas Banking Co. v. Hutchins, 53
Tex. 61.

Custom cannot contradict a fact plainly proved by positive
testimony. I. & G. N. R y Co. v. Gilbert, 64 Tex. 536, 541.
Evidence of a usage should never be admitted "until the party
offering it has distinctly stated to the Court what he intends to
prove." Susquehanna Fertilizer Co. v. White, Q6 Md. 444, 457.
Evidence of the uniform and general custom in like cases is
sometimes competent, although not conclusive, upon the ques-
tion whether a use is a reasonable one. Red River Mills v.
Wright, 30 ]\Iinn. 249, 254. But the testimony of the same
witness as to his conduct and the result of it in other cases is
immaterial. Lane v. Boston & Albany Railroad Co., 112 Mass.
455 . Lewis v. Smith, 107 Id. 334 : City Council v. Montgomery,
79 Ala. 233, 245. Usage is sometimes resorted to to raise a
primd facie presumption of fact in aid of collateral testimony.
Knickerbocker Ins. Co. v. Pendleton, 115 U. S. 340.

It has been held that the testimony must be ample to esta]>
lish a usage. Frith v. Barker, 2 Johns. 327. Some of the
authorities hold that a usage cannot be established by the tes-
timon}' of a single Avitness. Bissell v. Ryan, 23 111. 566, 571 ;
Wood V. Hickok, 2 Wend. 501 ; Holwerson v. Cole, 1 Spears
(S. C.) 321. But the weight of the authority is the other way.
Robinson r. U. S., 13 Wall. 363, 366; Marston v. Bank, 10
Ala. 284 ; Partridge v. Forsyth, 29 Ala. 200. " Notwithstand-
ing the dictum in Boardman v. Spooner, 13 Allen 353, 359,
there can be no doubt at the present day that the circumstances

880 WIGGLESWORTH V. DALLISON.

that but one witness testifies to a usage is important only as
bearing upon the credibility and satisfactoriness of his testi-
mony in point of fact, and does not affect its competency or its
sufficiency as matter of law." Jones v. Hoey, 128 Mass. 585 ;
Wootters v. Kauffman, 67 Tex. 488, 403 ; Vail v. Rice, o X. Y.
156. See Treadway v. Shannon, 7 Nev. 37. Testimony that
one knew what had been the custom for several years is insuf-
ficient. Smith V. Rice, 56 Ala. 417. Usages must be pleaded.
Liggatt V. Withers, 5 Gratt. 24 ; Sullivan v. House, 2 Col.
424 ; Lewis v. McClure, 8 Oreg. 273 ; Overman v. Bank, 31
N. J. (Law) 563.

Li regard to the burden of proof the general rule of course
is that he who sets up anything must prove it, although, as we
have alread}^ seen, it is sufficient in most cases if it is shown
that the usage was presumptively known to both parties. See
Loveland v. Burke, 120 Mass. 139 ; Harris v. Turnbridge, 83
N. Y. 92 ; Scott v. Whitney, 41 Wis. 504 ; Power v. Kane, 5 Id.
265; Irish v. Railroad, 19 Minn. 376 : N. Y. Iron Mine v. Bank,
44 Mich. 344; Bentley v. Daggett, 51 Wis. 224; Murray v.
Spencer, 24 Md. 520 ; Fisher v. Sargent, 10 Cush. 250 ; Fletcher
V. Seekell, 1 R. I. 267. Sometimes the violation of a usage is
evidence of negligence. Sampson v. Hand, 6 Whart. 311, 324.
See also Cook v. Champlaiu Co., 1 Den. 92,102; Bradford v.
Drew, 5 Met. 88 ; Maxwell v. Eason, 1 Stew. & P. 514 ; Cheno-
with V. Dickenson, 8 B. Mon. 156 ; Barber v. Brace, 3 Conn. 9.
But generally custom cannot be set up to show that negligence
does or does not exist; it must be determined by the facts of
the case. G. C. & Santa Fe R'y Co. v. Evanrich, 61 Tex. 36.
Established usage not to tranship is not rebutted by bill of lad-
ing reserving right of transshipment. Schroeder v. Schroelzer,
66 Cal. 294,^298.

Court and the jury. — The question of the existence of a usage
is for the jury ; of its validity, for the Court. Knickerbocker
Life Ins. Co. v. Pendleton, 115 U. S. 339, 344, 345 : Huston v.
Peters, 1 Met. (Ky.) 558 ; Chicago Packing Co. v. Tilton, 87
111. 547 ; Steele v. McTyer, 31 Ala. 667 ; SulUvan v. Jernigan,
21 Flor. 264, 278 ; Elder v. Railroad Co., 13 S. C. 279. " There
does not seem to be entire harmony in the decisions of other
states as to whether the reasonableness of a custom is to be
determined by the Court, or whether it is a question for the
jury." Mulliner v. Bronson, 14 Bradw. 355, 364.

WIGGLESWORTH V. DALLISON. 881

Private usage. — The practice and usage of a party has effect
if expressly made part of the terms of the contract or if shown
to have been known to the other party and assented to by liim.
Hursh V. North, 40 Pa. St. 241 ; Railroad Co. v. Nash, 43 Ind.
423 ; iNIarshall v. Express Co., 7 Miss. 1 ; Hooper v. Railroad,
27 Id. 81 ; Boody v. Stone, 24 Vt. 660 ; Stevens v. Smith, 21
Id. 90 ; Bank v. Wallace, 13 S. C. 347 ; Silk Co. v. Fair, 112
Mass. 354 ; Veiths v. Hagge, 8 la. 163 ; Railroad v. Murray, 72
111. 128. But gtMierally mere personal modes of dealing cannot
be set up as customs. Powell v. Thompson, 80 Ala. 51, 55 ;
Burr V. Sickles, 17 Ark. 428, 434. The practice of a local office
of a telegraph company cannot vary the terms of the contract
under which the message is sent. Grinnell v. W. U. Tel. Co.,
113 Mass. 299. See furthur Eureka Ins. Co. v. Robinson, 26
Pa. St. 256, 265; Meighen v. Bank, 25 Id. 288; Burger v.
Mutual Ins. Co., 71 Id. 422, Vaughan v. Railroad, 63 N. C.
11 ; Loring v. Gurney, 5 Pick. 16 ; McDowell v. Ingersoll, 5 S.
& R. 101 ; Knox V. Rives, 14 Ala. 249, 257. As to the author-
ity of an assistant teller to certify checks, see Hill v. Nation
Trust Co., 108 Pa. St. 1.

Various points. — The custom in Wigglesworth v. Dallison is
recognized in Pennsylvania. Forsythe v. Price, 8 Watts 282,
and cases cited ; Denis v. Rossler, 1 P. & W. 224 ; Iddings v.
Nagle, 2 W. & S. 22. Also in other states. Nellons v. Truax,
6 Ohio St. 97 ; Van Dorens v. Everitt, 2 South 460 ; Dorsey v.
Eagle, 7 CI ill 321. As to wheat but not as to oats in Delaware,
Templeman v. Biddle, 1 Ilarr. 522. As to Virginia, see Harris
V. Carson, 7 Leigh 632, 639. As to usages and customs in
Louisiana before acquisition, see Slidell v. Grandgian, 111
U. S. 412.

The usage, as has been previously stated, must be shown to
be well established, uniform, general and notorious. The evi-
dence therefore must show a series of similar transactions. A
single instance will not suffice. Berkshire Woolen Co. v. Proc-
tor, 7 Cush. 422 ; Dean v. Swoop, 2 Binney 72 ; Cope v. Dodd,
13 Penn. St. 37. In Indiana it is held requisite that the custom
l)e shown to prevail all over the state regarded as a single
locality. Harper v. Poand, 10 Ind. 32 ; Rafert v. Scroggins,
40 Id. 195 ; Spears v. Ward, 48 Id. 541. And the testimony
to prove the usage must be positive and certain. It is there-
fore improper to admit evidence that it was not the custom to

882 WIGGLESWORTH V. DALLISON.

make certain contracts at a certain place. Goodfellow v. Mee-
gan, 32 Mo, 280. And if the latest knowledge of the witness
was acquired more than a year prior to the transaction in ques-
tion, his testimony should be excluded. Hale v. Gibbs, 43 Iowa,
380. Contracting parties are not bound by local usages of other
places unless they are referred to or made a part of the contract.
Cobb V. Limerock, &c., Ins. Co., 58 Me. 326 ; Union Bank v.
Union Ins. Co., Dudley (S. C.) 171. Nor will it be permitted
to import by implication a local usage of one place into a con-
tract made at another. Parkhurst v. Gloucester Ins. Co., 100
Mass. 301 ; Cobb v. Limerock, &c., Ins. Co., 58 jNIe. 32G ; Strong
V. King, 35 111. 9 ; Nichols v. DeWolf, 1 R. I. 277. And if a
usage which the courts would not enforce, suth as a sale of a
customer's stock without notice to him upon his failure to fur-
nish sufficient margin at the stock exchange, be agreed to in
writing by the customer, it will be upheld as to him. Baker v.
Drake, 66 N. Y. 518.

MOSS v. GALLIMORE AND ANOTHER.

MICHAELMAS. — 20 GEO. 3.
[reported dougl. 279.]

A mortgagee, after giving notice of the mo7'tgage to a tenant in
possessioji, under a lease prior to the mortgage, is entitled to
the rent in arrear at the time of the notice, as well as to what
accrues afterivards, and he may distrain for it after such
notice.

In a notice for the sale of a distress, it need not he mentioned
lohen the rent fell due (jci).

Ix an action of trespass, which was tried before Nares, Justice,
at the last assizes for Staffordshire, on not guilty pleaded, a
verdict was found for the plaintiff, subject to the opinion of
the court, on a case reserved. The case stated as follows : One
Harrison being seized in fee, on the first of January, 1772, de-
mised certain premises to the plaintiff for twenty years, at the
rent of 40/., payable yearly on the 12th of j\Iay ; and in May,
1772, he mortgaged the same premises, in fee, to the defendant,
Mrs. Gallimore. Moss continued in possession from tlie date of
the lease, and paid his rent regularly to the mortgagor all but
28/. which was due on and before the month of November, 1778,
when the mortgagor became a bankrupt, being at the time in-
debted to the mortgagee in more than that sum for interest on
the mortgage. On the 3rd of January, 1779, one Harwar went
to the plaintiff, o"i behalf of Gallimore, showed him the mort-
■gage deed, and demanded from him the rent then remaining
unpaid. This was the first demand that Gallimore made of the

(^«) A man is not bound by his \^PhiUips v. Whitsed, 2 E. & E. 804.]
notice of distress, C'rotcther v. Rams- A notice of distress must be in writ-
bottom, 7 T. R. 654, per Lord Kenyon, ing, Wilson v. Xujhtinfjale, 8 Q. B. 1034.

S83

884 MOSS V. GALLIMOKE.

rent. The plaintiff told Harwar that the assignees of Harrison
had demanded it before, viz., on the 31st of December ; but,
when Harwar said that Gallimore would distrain for it if it was
not paid, he said he had some cattle to sell, and hoped she
would not distrain till they were sold, when he would pay it.
The plaintiff not having paid according to this undertaking,
the other defendant, by order of Gallimore, entered, and dis-
trained for the rent, and thereupon gave a Avritten notice of
such distress to the plaintiff, in the following words : " Take
notice, that I have this day seized and distrained, &c., by virtue
of an authority, &c., for the sum of 28L, being rent, and arrears
of rent, due to the said Esther Gallimore, at INIichaelmas last
past, for, &c., and unless you pay the said rent, &c." He ac-
cordingly sold cattle and goods to the amount of 221. 2s. The
question stated for the opinion of the court was, whether,
under all the circumstances, the distress could be justified?

Wood for the plaintiff. Boiver for the defendants.

Wood. — The plaintiff's case rests upon two grounds : 1st,
The defendant, Gallimore, not being, at the time when the rent
distrained for became due, in the actual seisin of the premises,
nor in the receipt of the rents and profits, she had no right to
distrain. 2nd. The notice was irregular, being for rent due at
Michaelmas, whereas this rent was only due and payable in
May. — 1. Before the statute of 4 Anne, c. 16 (a), a convey-
ance by the reversioner was void without the attornment of the
tenant (5), which was necessary to supply the place of livery of
seisin. Since that statute I admit that attornment is no longer
necessary to give effect to the deed ; but it does not follow
from thence, that a grantee has now a right to distrain, before
he turns his title into actual possession. The mortgagor
(according to a late case (^O)' is tenant at will to the mort-
gagee, and has a right to the rents and profits due before his
will is determined. Nothing in this case can amount to a
determination of the will, before the demand of the rent on
behalf of the mortgagee, and the whole of that for which the
distress was made became due before the demand. If the
mortgagor himself had been in possession, he could not have
been turned out by force : the mortgagee must have brought
an ejectment. The assignees had called upon the plaintiff for

(a) Sect. 9. (c) Keech v. Hall, M. 19, Geo. 3,

(&) Co. Litt. 309, a. b. ante, p. 546.

MOSS V. GALLIMORE. . 885

the rent as well as Gallimore, and how could he take upon him-
self to decide between them? The mortgagee should have
brought an ejectment, when any objection there might have
been to the title could have been discussed. It does not appear
from the case, that the interest in arrear had ever been de-
manded of the mortgagor, and there is a tacit agreement that
the mortgagor shall continue in possession and receive the rents
till default is made in paying the interest. 2. The notice is
irregular, and, on that account, the distress cannot be justified.
By the common law, the goods could not be sold. The power
to sell was introduced by the statute of William and ]\lary (a) ;
but it is thereb}' required that notice shall be given thereof,
" with the cause of taking," &c. These requisites are in the
nature of conditions precedent, and, if not complied with, the
proceedings are illegal. It is true, this irregularity, since the
statute of 11 Geo. 2 (J), does not make the defendants tres-
passers ah initio^ but the action of trespass is still left by that
statute, for special damages incurred in consequence of the
irregularity (c).

Lord Mansfield observed, that the defendant was precluded
by the case from going for special damages arising from any
supposed irregularity in the sale, no such special damages being
found, and the question stated being only, whether the distress
was justifiable ; and BuUe/\ Justice, said that it was not neces-
sary, by the statute of William and jNIary, to set forth in the-
notice at what time the rent became due.

Bower. — If the law of attornment remained still the same as.
it was at common law, the conversation stated to have taken
place between the plaintiff and Harwar would amount to an
attornment ; and, when there has been an attornment, its opera-
tion is not restrained to the time when it was made : it relates
back to the time of the conveyance, and makes part of the same
title ; like a feoffment and livery, or a fine or recovery and the
deed declaring the uses ; Long v. Hemming (^rf). Now, how-
ever, any doubts there might have been on this subject are-
entirely removed by the statute of Queen Anne, the words of
'which are very explicit, viz. (<;) : " that all grants or conveyances

(a) 2 W. & M. Sess. 1, c. 5, s. 2. • (cT) 1 Anders. 256. Vide S. C Cro..

(6) Cap. 19, s. 19. El. 209.
(c) See on this point, ajite [in note (e) 4 Anne, cap. 16, s. 9.

to Six Carpenters' case].

386 . MOSS V. GALLIMORE.

of any manors, rents, reversions, or remainders, shall be as good
and effectual to all intents and purposes, without any attorn-
ment of the tenants, as if their attornment had been had and
made." The proviso in the same statute (a), which says, that
the tenant shall not be prejudiced by the payment of any rent
to the grantor before he shall have received notice of the
grant, shows, that it was meant that all the rent which had not
been paid at the time of the notice should be payable to the
grantee. The mortgagor is called a tenant at will to the mort-
gagee. That may be true in some respects, but it is more
correct to consider him as acting for the mortgagee in the re-
ceipt of the rents as a trustee, subject to have his authority for
that purpose put an end to, at whatever time the mortgagee
pleases. It is said, the proper method for the mortgagee to
have followed would have been to have brought an ejectment,
but it is only a very late practice to allow a mortgagee to get
into the possession of the rents, by an ejectment against a ten-
ant under a lease prior to the mortgage (6). The interest, it is
said, is not stated to have been demanded: but the > case states,
that, at the time of the notice and distress, more than the
amount of the rent in arrear was due. It is said the tenant
could not decide between the mortgagor (or, which is the same
thing, his assignees) and the mortgagee ; but that is no excuse.
He would have had the same difficulty in the case of an abso-
lute sale ; a mortgage in fee being, at law, a complete sale, and
only differing from it in respect of the equity of redemption,
which is a mere equitable interest.

The Court told him it was unnecessary for him to say any-
thing on the other point.

Lord Mansfield. — I think this case, in its consequences, very
material. It is the case of lands let for years and afterwards
mortgaged, and considerable doubts, in such cases, have arisen
in respect to the mortgagee when the tenant colludes with the
mortgagor ; for the lease protecting the possession of such a
tenant, he cannot be turned out by the mortgagee. Of late
years the courts have gone so far as to permit the mortgagee to
proceed hy ejectmetit., if he has given notice to the tenant that he
does not intend to disturb his possession, hut only requires the rent

(a) Sect. 10. no longer exists. See note to Keech

(6) Wliite V. Haiokins, M. 19 Geo. v. Hall, ante.
3. This practice was anomalous, and

MOSS V. GALLIMOKE. 887

to he paid to him, and not the mortgagor (^ci). This, however, is
entangled with difficulties. The question here is, whether the
mortgfaofee was or was not entitled to the rent in arrear. Be-
fore the statute of Queen Anne attornment was necessary, on
the principle of notice to the tenant; but, when it took place,
it certainly had relation back to the grant, and, like other
relative acts, they were to be taken together. Thus, livery of
seisin, though made afterwards, relates to the time of the feoff-
ment. Since the statute, the conveyance is complete without
attornment ; hut there is a provision, that the tenant shall not he
prejudiced for any act done hij him as holding under the grantor,
till he has had notice of the deed. Therefore, the payment of
rent hefore such notice is good. With this protection, he is to be
considered, by force of the statute, as having attorned at the
time of the execution of the grant ; and, here, the tenant has
suffered no injury. No rent has been demanded which was
paid before he knew of the mortgage. He had the rent in
question still in his hands, and was bound to pay it according
to the legal title. But having notice from the assignees, and
also from the mortgagee, he dares to prefer the former, or
keeps both parties at arm's length. In the case of executions,
it is uniformly held, that if you act after notice, you do it at
your pei-il. He did not offer to pay one of the parties on re-
ceiving an indemnity. As between the assignees and the mort-
gagee, let us see who is entitled to the rent. The assignees
stand exactly in the place of the bankrupt. Now, a mortgagor
is not properly tenant at will to the mortgagee, for he is not to
pay him rent. He is only quodam mqdo. Nothing is more apt
to confound than a simile. When the court or counsel call a
mortgagor a tenant at will, it is barely a comparison. He is
like a tenant at will. The mortgagor receives the rent by a
tacit agreement Math the mortgagee, but the mortgagee may
put an end to this agreement when he pleases. He has the
legal title to the rent, and the tenant in the present case cannot
be damnified, for the mortgagor can never oblige him to pay
over again the rent which has been levied by this distress. I
therefore think the distress well justified; and I consider
this remedy as a very proper additional advantage to mort-
gagees, to prevent collusion between the tenant and the mort-
gagor.

(a) But this is at present never permitted. See ante, note to Keech v. Hall.

MOSS V. GALLIMORE.

Ashurst^ Justice. — The statute of Queen Anne has rendered
attornment unnecessary in all cases, and the only question here
arises upon the circumstance of the notice of the mortgage not
having been given till after the rent distrained for became due.
Where the mortgagor is himself the occupier of the estate, he
may be considered as tenant at will ; but he cannot be so con-
sidered if there is an under-tenant ; for there can be no such
thino- as an under-tenant to a tenant at will. The demise itself
would amount to a determination of the will. There being in
this case a tenant in possession, the mortgagor is, therefore,
only a receiver of the rent for the mortgagee, who may, at any
time, countermand the implied authority, by giving notice not
to pay the rent to him any longer.

Buller, Justice. — There is in this case a plea of the general
issue, which is given by statute («), but if the justitication ap-
peared upon the record in a special plea, the distress must be
held to be legal. Before the act of Queen Anne, in a special
justification, attornment must have been pleaded ; but since
that statute it is never averred in a declaration in covenant,
nor pleaded in an avowry. In the case of Keech v. Hall, re-
ferred to by Mr. Wood, the court did not consider the mort-
gagor as tenant at will to all purposes. If my memory do not
fail me, my Lord distinguished mortgagors from tenants at
will in a very material circumstance, namely, that a mortgagor
would not be entitled to emblements. Expressions used in par-
ticular cases are to be understood with relation to the subject-
matter then before the court.

The postea to be delivered to the defendants.

Moss V. Gallimore is the leading case upon a point Avhich seems so clear in
principle that, were it not for its verj' general importance, it would be per-
haps a matter of some surprise that any case should have been requisite to
establish it. The mortgagor having conveyed his estate to the mortgagee,
the tenants of the former become of course the tenants of the latter; the
necessity of their attornment being done away with by the statute of Anne,
which, though it provides that they shall not be prejudiced by tlie abolition
of attornment, and consequently renders valid any payments they may have
made to the mortgagor without notice of the mortgage [provided that such
payments were made in respect of rent which Avas due at the time of pay-
ment or became due before notice of the mortgage : Be Nicholls v. Saunders,

(a) 11 Geo. 2, c. 19, s. 21.

MOSS V. GALLIMOKE. 889

L. R. 5 C. P. 589, 39 L. J. C. P. 297; Cook v. Guerra, L. R. 7 C. P. 132, 41 L.
J. C. P. 89], nevertheless places the mortgagee in the sitnation of the mort-
gagor, immediately upon the execution of the mortgage-deed, subject only
to that proviso in favour of the tenants ; and enables him by giving notice to
them of the conveyance, to place himself to every intent in the same situa-
tion towards them as the mortgagor previously occupied : Raioson v. Eicke,
7 A. & E. 451 ; Burroioes v. Gradin, 1 Dowl. & L. 213.

Such being the situation of the tenant with respect to the mortgagee, it
would of course be unfair that he should not be propoi-tionably exonerated
from his liabilities to the mortgagor; therefore, where a lessor, after the
execution of the lease, moi-tgaged the premises, it was held that he could not
afterwards maintain ejectment for a forfeiture : Doe dem. Marriott v. Ed-
icards, 5 B. & Ad. 1065. [As to what is notice of the mortgage, see Cook
V. Guerra, tibi. sup.'}

In Trent v. Hunt, 9 Exch. 14, it is said to have been decided by the Court
of Exchequer, that if a lessor having mortgaged his reversion is permitted
by the mortgagee to continue in the receipt of the rent incident to that rever-
sion, he, during such permission, is, presumptions juris authorised, if it should
become necessary, to realise the rent by distress, and to distrain for it in the
mortgagee's name as his bailift'. [In Snell v. Finch, 13 C. B. N. S. 651, Trent
V. Hunt was acted upon, the court suggesting that the implied authority may
be limited to a distress on a lawful occasion. See also the judgments of
Williams and Willes, JJ., in The Dean, &c., of Christchurch v. The Duke of
Burkinyham, 17 C. B. N. S. 391, 33 L. J. C. P. 322.]

Such being the situation of a tenant who comes in under the mortgagor
before the mortgage, let us now examine a subject which seems to involve
more difficulty, namely, that of a tenant who has entered under the mortgagor
subsequenthj to the mortgage.

[And first it must be observed, that as regards mortgages made since the
1st January, 1882, the Conveyancing Act, 1881, 44 & 45 Vict. c. 41, has intro-
duced a material difference, for by that Act, unless otherwise provided by
such mortgage, a statutory power of leasing is given to a mortgagor or mort-
gagee while respectively in possession. In this note there will be considered
the situation of a mortgagor's tenant under a tenancy posterior to the mort-
gage,

1st. Where the lease is not made under the statutory power.

2nd. Where it is so made.

And, first, at common law,] it was once alleged that though a tenant who
had entered previous to the mortgage became the tenant of the mortgagee
after the mortgage, and might, if any proceedings were afterwards instituted
against him by the mortgagor, show that, although that person was once his
landlord, he had now conveyed away his estate in the premises; (according
to the ordinary rule of law, that a tenant, though he cannot dispute the title
of the landlord under whom he entered, may confess and avoid it by showing
that it has now determined : see Doe dem. Afarriott v. Edwards, above cited;)
"still that a tenant who had entered since the mortgage was differently situated,
for that he was estopped from disputing the title of the mortgagor, and
could not confess and avoid it, inasmuch as it had never really existed during
the period of his possession ; and this idea derived a good deal of counte-
nance from the decision of the Court of Common Pleas, Alchorne v. Gomme,
2 Bing. 54.

However, the subject was afterwards fully discussed in Pope v. Biggs, 9 B.

890 MOSS V. GALLIMORE.

& C. 245, [and in that case, followed in Waddilove v. Barnett, 4 Dowl. 348, it
was held that a] " mortyagee, by fjivinrj notice of the mortrjaye to the tenant,
may thereby make him his tenant, and entitle himself to receive the rents." " The
mortgagor," said Parke, J., " may be considered as acting in the nature of a
bailiff or agent for the morUjayee. His receipt of rent Avill, therefore, be good
until the mortgagee interferes, and he may recover on the contracts he has
himself entered into in his own name with the tenants. But where the mort-
gagee determines the implied authority bj' a notice to the tenants to pay their
rents to him, the mortgagor can no longer receive or recover any unpaid I'ent,
whether already due or no." \_Accord, Vallance v. Savaye, 7 Bing. 595 (a
case of trustee and cestui que trust) •,'\ Meyyinson v. Harper, i Tyrwh. 100;
Burrowps v. Gradin, 1 Dowl. & L. 213, Wightman, J.

The doctrine tlius promulgated in Pope v. Biyys was, however, shaken by
Partinyton v. Woodcork, 6 A. & E. 690, and Royers v. Humphreys, A. & E. 313.
And at length, in Evans v. Elliott, 9 A. & E. 342, it was expressly decided by
the Court of Queen's Bench [on a question whether the mortgagee had a
right to distrain,] that the mortyayee cannot by the mere fact of yiviny the mort-
gayofs tenant a notice, cause him to hold of himself the mortyayee, and that
even a subsequent attornment by the tenant to the mortyayee will not have the
effect of settiny up his title as landlord by relation.

The I'esult of this decision and of that of the Court of C. P. in Broicn v.
Storey, 1 Scott, N. C. 91; 1 M. & G. 117, seems to be that [at common law]
in order to ci'eate a tenancy between the mortgagee and the tenant let into
possession by the mortgagor, there must be some evidence whence it may be
inferred that such relation has been raised by mutual agreement, and that in
such case the terms of the tenancy are to be ascertained (as in an ordinary
case) from the same evidence which proves its existence, but that it does not
lie in the power of the mortgagee by a mere notice to cause the tenant in
possession to hold vmder him on the same terms on which he held under the
mortgagor — or indeed upon any terms at all without his own consent. And
that where the tenant does consent to hold under the mortgagee, a new ten-
ancy is created, not a continuation of the old one between him and the mort-
gagor. [See the judgment in Waddilove v. Barnett, 2 Bing. N. C. 538.] In
Brown v. Storey, indeed, the Court of Common Pleas expressed an opinion
that, if the mortgagor's tenant, after receiving notice from the mortgagee to
pay rent to him, continued in possession, it might fairly be inferred that he
assented to continue as tenant to the mortgagee upon the old terms.

In Burrowes v. Gradin, 1 DoavI. & L. 213 (which may be considered a mid-
dle case), AVightman, J., held that an agreement [made after the mortgage]
between the mortgagor and a tenant from year to year, whose tenancy com-
menced before the mortgage, for paj'ment of an additional annual sum as
rent, in consideration of improvements made by the mortgagor, had not the
eflect of so changing the situation of the parties, that the tenant could
be considered as no longer holding of the mortgagee ; and further, that the
mortgagee might adopt the dealing of the mortgagor as his agent, and (after
notice of the mortgage) recover not merely the amount of rent originally
payable, but the additional sum also, which, in consequence of the improve-
ment of the land, the tenant agreed to pay; a remarkable decision, so far as
relates to the additional svim agreed to be paid, because it appears from
Donellan v. Read, 3 B. & Ad. 899, and Lambert v. Norns, 2 M. & W. 334, that
that sum was not rent properly so called, but a sum in gross, for which an
assignee of the reversion could not sue, nor could an assignee of the term be

MOSS Y. GALLIMORE. 891

sued. The reasoning of AViglitman, J., though expressly limited to the
peculiar circumstances of the case, and especially founded on tliat of the
tenancy having existed at the time of the mortgage, tends in some degree
to confirm tlie conclusions drawn from Fupe v. Bi(j(js.

It should seem tliat the cases on tliis subject miglit be reconciled to ordi-
nary principles, without straining after any peculiar rule applicable to the case
of mortgagor and mortgagee, by observing that a tenant of the mortgagor,
whose tenancy has commenced since the mortgage, may [at common law] in
case of an eviction by tlie mortgagee, either actual or constructive, (for
instance, an attornment to him under threat of eviction, see Doe d. Hiyrjin-
botham V. Barton, 11 A. & E. 314; ^fa)Jor of Poole v. Whitt, 15 M. & W. 571;
[and the judgments in Delaney v. Fox, 2 C. B. N. S. 7G8, and Carpenter v.
Parker, 3 C. B. N. S. 237, 27 L. J. C. P. 78],) dispute the mortgagor's title to
either the land or the rent, (which is no more than any tenant may do upon
an eviction by title paramount;) and further, that he may, altliougli there
have been no eviction, defend an action for rent l)y proof of a payment under
constraint, in discharge of the mortgagee's claim, Johnson v. Jones, 9 A. & E.
809, (which right is analogous to that of an ordinarj' tenant in respect of
payments on account of rent-charges, and other claims issuing out of the
land, of which examples are cited in the note to Lampleiyh \. Braithicaite,
ante ;) so that [such] a tenant who has come in under the mortgagor after
the mortgage, and has neither paid the rent to the mortgagee, nor been
evicted by him either actually or constructively before tlie tlay of payment,
cannot defend an action by the mortgagor for that rent : Wheeler v. Brans-
combe, 5 Q. B. 373.

As the mortgagor ceases to be entitled to the rents upon the mortgagee's
giving the tenant notice, [and the tenant's paying them to him,] it follows
that the mortgagor cannot afterwards maintain anj' action for use and occu-
pation against him, either for rent which accrued due after the notice, or for
rent which accrued due before the notice, but was unpaid at the time when
the notice was given. In the former case the defence amounts to a denial
of the contract alleged, which avers the defendant to have used and occupied
the land Ijy tlic permission of the plaintifl', the mortgagor. But in the latter
case, viz., where tlie rent became due before notice, but was unpaid at the
time of notice, the tenant confesses that the right of action once existed, but
avoids it l)y matter ex 2)ost facto, viz., by the subsequent notice from the
mortgagee, Waddilove v. Barnett, 4 Dowl. P. C. 347; 2 Bing. N. C. 538.

[It appears to be now^ settled that at common law the mere notice without
payment or eviction is not a defence to an action by the mortgagor against
the tenant, either for rent due before ( Wilton v. Dunn, 17 Q. B. 294 ; Hickman
V. Machin, 4 II. & N. 71G), or after the notice {Hickman v. Maehin).

Secondly, there remains to be considered the situation, relatively to the
mortgagee, of the mortgagor's tenant whore the lease has been made ))y
the mortgagor under the statutory power given by s. 18 of the Conveyancing
Act, 1881. It is by that section enacted, with reference to mortgages made
after 1 Jan. 1882, that " a mortgagor of land wliile in possession shall, as
against every incumbrancer, have, by virtue of this Act, power to make from
time to time any such lease of the mortgaged land, or any part thereof, as is
in tliat section described and authorised." The remainder of the section will
be found set out in the note to Kecch v. Hall, ante, p. 549. Further, s. 10 of
the same Act is as follows: — "Rent reserved by a lease and the benefit
of every covenant or provision therein contained having reference to the

892 MOSS V. GALLIMORE.

subject-matter thereof, and on the lessee's part to be observed or performed,
and every condition of re-entry and other condition therein contained, shall
be annexed and incident to, and shall go with the reversionary estate in the
land, or in any part tliereof , immediately expectant on the term granted by
the lease, notwithstanding severance of that reversionary estate, and sliall
be capable of being recovered, received, enforced, and taken advantage of l)y
the person from time to time entitled, subject to the term, to tlie income
of the whole or any part, as the case may require, of the land leased." Sect.
11 provides that the obligation of the lessor's covenants sliall lilcewise run
witli the reversion so far as the lessor has power to bind the person entitled
to the reversion.

These sections apply only to leases made after the commencement of the
Act in the case of leases of the kind now under consideration. Tlie object
aimed at by the above sections would seem to be to provide that wliile on the
one hand a lease by a mortgagor in possession is to be valid against and
binding on the mortgagee, on the other hand, the mortgagee, at anv rate on
giving notice or going into possession, is at once to have under sucli lease
every right Avhicli he would have had if he himself had been tlie lessor. The
wording of the sections, however, is somewliat obscure, and it would be
premature to express an opinion whether tlieir combined efl'ect is as above
suggested.

It should be observed that the power given by s. 18 may be excluded,
modified, or enlarged by the express terms of the instrument itself.

The Judicature Act, 1873, provides, s. 25, sub-s. 5, that "a mortgagor
entitled for the time being to the possession or receipt of tlie rents and
profits of any land as to Avhicli no notice of his intention to take possession
or to enter into the receipt of the rents and profits thereof shall be given by
the mortgagee, may sue for such possession or for the I'ecovery of sucli rents
or profits, or to prevent or recover damages in respect of any trespass or
other wrong relative thereto in his own name only, unless the cause of action
arises upon a lease or other contract made by him jointly witli any otlier
person."]

I| will conclude this note by taking notice of a case Avhich sometimes
occurs; viz., that of a lease purporting to be by mortgagor and mortgagee
jointly : such an instrument operates as a lease by the mortgagee, with a con-
firmation by the mortgagor, until the estate of the former has been deter-
mined by paying off" the mortgage-money, and then it becomes the lease of
the mortgagor, and the confirmation of the mortgagee, and it follow[ed]
that, if [before the Common Law Procedure Act, 1852] ejectment was
brought against the tenant during the mortgagee's estate, the demise must
have been laid in the name of the mortgagee; if afterwards, in that of the
mortgagor ; but a joint demise laid in the declaration would not have been
improper : Doe dem. Barney v. Adams, 2 Tyrwh. 289. See Doe dem. Barker
V. Goldsmith, Ibid. 710.

[A right of entry reserved to the mortgagor only in a lease by mortgagor
and mortgagee was (before the Conveyancing Act, 1881) held not to be avail-
able to the plaintifls in ejectment by the mortgagor and mortgagee : Saunders
V. Merry weather, 3 H. & C. 902, 35 L. J. Exch. 115. The mortgagee could not
re-enter, because no right of re-entry was reserved to him ; the mortgagor
could not, because he had no legal interest in the reversion, and tlie facts of
the case excluded an estoppel.]

When a mortgagor and mortgagee join in a lease, and the covenants to pay

MOSS V. GALLIMORE. 893

rent and repair are ■with the mortgagor and his assigns only, the [assignee of
the] mortgagee cannot [unless by virtue of the Conveyancing Act, 1881] sue
on those covenants, because collateral to his interest in the land : ]Vebh v.
Russell, 3 T. R. 393 ; though the mortgagor might sue on them as covenants
in gross : Stokes v. Russell, 3 T. R. 678, 1 H. Bl. 5G2. Where the mortgagor
and mortgagee join in a lease, containing an express covenant by the mort-
gagor for quiet enjoyment, no covenant from both can be implied. Smith v.
PUkington, 1 Tj'rwh. 313. In Harold v. Whitaker, 11 Q. B. 147, 163, in a
lease by the mortgagor and mortgagee which recited the mortgage, the red-
dendum Avas to the mortgagee, his executors, &c., during the continuance of
the mortgage, and after payment and satisfaction thereof, to the mortgagor
or his executors, &c., and the lessee covenanted to and with the mortgagee,
and also to and with the mortgagor, to pay the rent " on the several days and
times, and in manner as the same was reserved and made payable." The
covenant was holden to be several.

Position of a tenant under a lease made by a mortgagor in refer-
ence to the payment of rent : —

(l) Where the lease is prior to the mortgage. — The mortgagee,
merely upon giving notice to the tenant in possession, is entitled
to receive all rent accruing and becoming due subsequently
to the execution of the mortgage, including whatever is in
arrear at the time of giving notice as well as that which ac-
crues and becomes due afterwards. Russell v. Allen, 2 Allen
42 ; Mirick v. Hoppin, 118 Mass. 582 ; King v. Housatonic R.
R. Co., 45 Conn. 226, 4 Kent's Com. (6th ed.) 165, Washburn
Real Property 531 (although in Pennsylvania, Myers v. White,
1 Rawle 353 at 355, it was said the mortgagee could not compel
the tenant to j^ay the rent to him, whether the lease was exe-
cuted before or after the mortgage). If, however, the possession
is reserved to the mortgagor until breach, the mortgagee is not
entitled to receive the rent until default, and after giving
notice of his claim and requiring payment to himself ; Taylor's
Landlord and Tenant § 121 (8th ed.). The mortgagee is not
entitled to the rent which became due before the execution
of the mortgage ; Burden v. Tha3'er, 3 Mete. 76 ; King v.
Housatonic R. R. Co., uhi sujyra. Payment of rent to the mort-
gagor before notice from the mortgagee is a good defence to
an action lor the rent by the mortgagee ; Russell v. Allen, ubi
supra ; Fitchburg Corp. v. Melven, 15 Mass. 268. If, however,
the mortgagee, before or at the time rent becomes due, notify
the tenant to pay the rent to him, the tenant cannot defend
by proving previous payment to the mortgagor ; De Xicholls v.

894 MOSS V. GALLIMORE.

Saunders, L. R. 5 C. P. 589 ; Cook v. Guerra, L. R. 7 C. P. 132.
Attornment by the tenant to the mortgagee is not necessary to
enable the latter to maintain an action for rent; Burden v.
Thayer, idn sujyra.

(II) Where the lease is subsequent to the mortgage and made
by a mortgagor -while remaining in possession of the mortgaged
estate. — At common law the mortgagee has a right to the im-
mediate possession of the mortgaged estate ; Colman v. Packard,
16 Mass. 39 ; Rockwell v. Bradley, 2 Conn. 1 ; Blaney v. Bearee, 2
Greenl. 132. The mortgagee cannot compel the tenant, there
being no privity of contract or estate between them, to pay the
rent to himself ; jNIcKircher v. Hawle}', 10 Johns. 289 ; Rogers v.
Humphreys, 4 Ad. & El. 299 at 313 ; thus, the mortgagee cannot
by mere notice compel the tenant to pay the rent to himself; Bart-
lett V. Hitchcock, 10 Bradw. (111.) 871 ; Evans v. Elliott, 9 Ad. &
El. 342; Drakford v. Turk, 75 Ala. 339, though formerly held
otherwise in Alabama; Hutchinson v. Bearing, 20 Ala. 798 ; and
held otherwise in ^Maryland to-day ; Clark v. Abbott, 1 Md. Ch. 474.
On the other hand, the mortgagee may consider the tenant as a
trespasser or a disseisor and may maintain ejectment or a writ of
entry against him ; Fitchburg Corp. v. ISIelven, ubi supra; Mass.
Ins. Co. V. Wilson, 10 ]\Ietc. 126. But where the estate remains
in the mortgagor until after foreclosure and sale, the mortgagee
cannot treat the tenant as a trespasser until that time ; Simers
V. Saltus, 3 Den. 214 at 219, and though the tenant attorn to
the mortgagee before foreclosure and sale, it is no defence to
an action by the mortgagor for the rent ; Hogsett v. Ellis, 17
Mich. 351. The mortgagee may eject the tenant without
notice to quit ; Doe v. Mace, 7 Blackf . 2 ; Rockwell v. Bradley,
ubi supra; Steadman v. Gassett, 18 Vt. 346 ; Bartlett v. Hitch-
cock, ubi supra ; Comer v. Sheehan, 74 Ala. 452. A mortgagor,
not having reserved possession to himself until breach, cannot
make a lease which will be good against the mortgagee ; Keith
V. Swan, 11 Mass. 216 ; Howell v. Schenck, 4 Zab. 89 at 91.
Until there has been an actual entry by the mortgagee, or
some act equivalent thereto has occurred, the mortgagee can
maintain no action against the tenant for the recovery of rent,
except upon an express promise to pay it ; Russell v. Allen, 2
Allen 42 at 44 ; Long v. Wade, 70 Me. 358 ; Kimball v. Lock-
wood, 6 R. I. 138. When the mortgagee has entered and noti-
fied the tenant to pay the rent to him, the tenant cannot
defend an action for the rent by showing there is a prior mort-

MOSS V. GALLIMOEE. 895

gage under which no entry has been made ; Cavis v. McClary,
5 N. H. 529. Though the entry of the mortgagee be ineffec-
tual for the purpose of foreclosure, yet if notice be given to
the tenant, he is entitled to subsequently accruing rents ; Cook
V. Johnson, 121 Mass. 326. Where the mortgagor owns the
estate until the mortgagee enters for breach of condition, the
mortgagee cannot, before entry for condition broken, recover
rent due from the tenant of the mortgagor ; White v. Wear,
4 Mo. Ap. 341. Though the mortgagee cannot compel the
lessee to become his tenant, yet on entry or demand the latter
may attorn and pay the after-accruing rent to him ; Baldwin v.
Walker, 21 Conn. 168 ; Welch v. Adams, 1 Mete. 494 ; Cook
V. Johnson, ubi supra; Kimball v. Lockwood, ubi supra; Cavis
V. McClary, ubi supra; but the tenant is not bound to attorn,
and may consider himself as evicted ; Simers v. Saltus, 3 Den.
214. If, however, the tenant attorns, there Avill be a new ten-
ancy and no liability upon the old lease ; thus in Doe v. Buck-
nell, 8 C. tS: P. 566, it was held the lessee became tenant from
year to year; and in Illinois, Gartside v. Outley, 58 111. 210, where
there was no express contract between the mortgagee and the
tenant, it was said the latter would become a tenant from year
to year. Although there be no liability upon the old lease,
yet if the tenant pay the mortgagee tlie rent due but unpaid
before notice, the tenant will have a good defence against the
mortgagor ; Waddilove v. Barnett, 4 Dowl. P. C. 347; 2 Bing.
N. C. 538.

"When can the tenant resist an action for the rent by the mort-
gagor ? — (a) When the tenant has been evicted by the mort-
gagee, or has attorned to him under threat of eviction ; Simers
V. Saltus, 3 Den. 214 at 216 ; Jones v. Clark, 20 Johns. 51 at 62 ;
Fitchburg Corp. v. Melven, 15 Mass. 268 ; Hickman v. Machin,
4 H. & N. 716 at 720. Eviction, however, is a good defence only
for the rent that falls due subsequently, but not for that due
when eviction took place ; Carpenter v. Parker, 3 C. B. (N. S.)
206. (J) When, after notice from the mortgagee, the tenant
has paid him not only the rent falling due subsequently to the
'notice, but also the rent due but unpaid before the notice ;
Waddilove v. Barnett, 4 Dowling P. C. 347; 2 Bing. N. C.
538. But mere notice from the mortgagee, without eviction or
payment, is no defence to an action by the mortgagor against
the tenant, either for rent due before or after notice ; Wilton
V. Dunn, 17 Q. B. 294 ; Hickman v. Macliin, 4 H. & N. 716.

WHITCOMB V. WHITING.

EASTER. — 21 GEORGES.
[reported dougl. G52.]

ITie acknowledgment of one out of several drawers of a joint and
several promissory note takes it out of the Statute of Limita-
tions as against the others^ and may he given in evidence in a
separate action against any of the others. (Secus since the
statutes mentioned in the notes.^

Declaration, in the common form, on a promissory note
executed by the defendant. Fleas : the general issue, and non
assumpsit infra sex annos. Replication: assumpsit infra sex
annos. The cause was tried before Hotham., Baron, at the last
assizes for Hampshire. The plaintiff produced a joint and
several note executed by the defendant and three others ; and,
having proved payment, by one of the others, of interest on the
note, and part of the principle, within six years, and the Judge
thinkinof that was sufficient to take the case out of the statute,
as against the defendant, a verdict was found for the plaintiff.

On Friday, the 4th of May, a rule was granted to show cause
why there should not be a new trial on the motion of Lawrence^
who cited Bland v. Haslerig (a) ; and this day in support of
the application, he contended, that the plaintiff', by suing the
defendant separately, had treated this note exactly as if it had
been signed only by the defendant ; and, therefore, whatever
might have been the case in a joint action, in this case the acts
of the other parties were clearly not evidence against him.
The acknowledgment of a party himself does not amount to a
new promise, but is only evidence of a promise. This was
determined in the case of Heylin v. Hastings (<^), reported in

(a) C. B. H. 1 & 2 W. & M. ; 2 Ventr. 150. (5) B. R. H. 10 Wil. 3.

896

WHITCOMB V. WHITING, 897

Salkelcl (a), and 12 Modern (/>) ; and in Hemmings v. Robin-
son (c), it was decided, that the confession of nobody but a
defendant himself is evidence against him. That hist case "svas
an action by an indorsee of a note, against the drawer, and the
pLaintiff proved the acknowledgment of a mesne indorser
that the indorsement on the back of the note was in his hand-
writing ; but the court was of opinion, that this was not evi-
dence against the drawer, but that the indorsement must be
proved. It would certainly open a door to fraud and collusion,
if this sort of evidence were, in any case, to be admitted. A
plaintiff might get a jomt di-awer to make an acknowledgment,
or to pay part, in order to recover the whole, although it had
been already paid.

Lord Mansfield. — The question here, is only whether the
action is barred by the Statute of Limitations. When cases of
fraud appear, they Avill be determined on their own circum-
stances. Payment hy one is paymemt for all, the one acting,
virtually, as agent for the rest ; and, in the same manner, an
admission hy one is an admission hy all; and the law raises the
promise to pay, when the debt is admitted to be due.

Willes, Justice. — The defendant has had the advantage of
the partial payment, and, therefore, must be bound by it.

Ashurst and Buller, Justices, of the same opinion.

The rule discharged (d).

[The decision in the principal case as to the efl'ect of acknowledgment or
payment hy a joint contractor as regards tlie Statute of Limitations has been
reversed by 9 Geo. 4, c. 14, sects. 1 and 2 (commonly called Lord Tenterden's
Act), supplemented by sect. 14 of " The Mercantile Law Amendment Act,

(a) 1 Salk. 29. defendant, who was found to have

(6) 223. promised within the six years. That

(d) The case of Haslerig v. Bland, joint, and the replication must have
cited [in the preceding page], was a alleged a joint undertaking, the ver-
joint action against four; the plea, diet did not find what the plaintiff
tTie Statute of Limitations; and a had bound himself to prove. But
verdict, that one of the defendants according to the principle in the case
did assume witliin six years, and that of WhUcomb v. Whiting, the jury
the others did not ; and it was held ought to have considered the prom-
by Pollexfen, C. J., Powel, and Ro/cebtj ise of one as the promise of all, and
(against Vcntris), that the plaintiff" therefore should have found a gen-
could not have judgment against the eral verdict against all.

898 "WHITCOMB V. WHITING.

1856" (19 & 20 Vict. c. 98), as to which section see Cockrill v. Spm'kes, 1 H.
& C. 699. These enactments have thus rendered comparatively useless, and
therefore caused the oniission here of a considerable portion of the notes
formerly appended to this case. The remainder of the notes has not lost its
utility, as it relates chiefly to the question, Avhat proof of payment suflices,
as against the person achiaUy payiiir/, to save the Statute of Limitations, hav-
ing regard to the provisions of sect. 1 of Lord Tenterden's Act. That sec-
tion enacts that, " in actions of debt, or upon the case grounded upon any
simple contract, no acknowledgment or promise by words only shall be
deemed sufficient evidence of a new or continuing contract, whereby to take
any case out of the operation of the said enactments " {suhintdl. Statutes of
Limitation), "or either of them, or to deprive any party of the benefit
thereof, unless such acknowledgment or promise shall be made or contained
by or in some writing to be signed by the party chargeable thereby, pro-
vided that nothing herein contained shall alter or take away or lessen the
effect of any payment vf any principal or interest made by any person what-
soever."]

Where one of two joint drawers of a l)iU of exchange became bankrupt,
and the holder of the bill proved, not upon the bill, but for goods sold,
exhibiting the bill as a security, it was held that receipt of dividends on that
proof would not take the case out of the Statute of Limitations, as against
the other drawer: Brandram v. Wharton, 1 B. & A. 4G3. In that case the
dividend was paid upon the debt proved, and its payment could not, without
straining the facts, be treated as a payment on account of the bill ; but in
general, ivhere there are several securities for a debt, a general payment on
account revives them all; thus where a promissory note was made by a surety
as security for part of the amount of a mortgage, payment of interest on the
mortgage was held enough to take the note out of the operation of the
statute: Doidinfj v. Ford, 11 M. & W. 329.

A payment by the assignee of an insolvent joint maker [was held to be in-
suflScient, even before the Mercantile Law Amendment Act, 185G, to take the
case out of the statute either as against the insolvent or the other makers],
Davis V. Edwards, 7 Exch. 22. [See also ex parte Topping, 34 L. J. Bankr.
44.]

Where parish officers borrowed money, and gave a promissory note to
secure it, signed A. B. &c., clmrch wardens, C. D. &c., overseers, " or others
for the time being," it was held that this form of signature was evidence of
an authority to the succeeding officers to pay on account, so as to keep the note
alive. Jones v. Hughes, 5 Exch. 104; [see 22 & 23 Vict. c. 49, ss. 1 and 4.]
In Neve v. Hollands and Wife [18 Q. B. 2G2], 21 L. J. 289, payment by a
wife, without authority of her husband, on account of a note made by them
jointly before marriage, was held insufficient to keep it alive as against him
and her.

With respect to the mode of proving a payment [to take the case out of
the Statute of Limitations], it has been held that if goods be given and
accepted in part payment within six years, that [saves] the case [from] the
statute. Hooper v. Stephens, 4 A. & E. 71 ; Hart v. N^ash, 2 C. M. & R. 337.
But an open account between two tradesmen, each charging the other with
goods, though containing items within six years, has not, without an appro-
priation of the charges on one side in liquidation of those on the other, the
effect of avoiding the bar ; for the exception in 9 G. 4 is in favour of pay-
ments only: Cottam v. Partridge, 4 M. & Gr. 271, 4 Scott, N. 11. 819, S. C. ;

TVHITCOMB V. WHITING. 899

Clarke v. Alexander, 8 Scott, N. R. 147; Foster v. Daicher, 6 Exch. 839.
"VVliere, however, there is such an appropriation by going through the account
and striiiing a balance, witli an agreement express or implied that the balance
only shall be paid, such a transaction is equivalent to a payment of the lesser
debt and a repayment of the amount in liquidation of so much of the greater
debt; and so it operates to save the balance of the larger debt from the
effect of the statute: Ashby v. James, 11 M. & W. 542, per Alderson, B.;
Scholey v. Watton, 12 M. & W. i>lO, per Parke, B. \_Boherts v. Shaio, 4 B. & S.
44, 32 L. J. Q. B. 308.]

A payment on account of the creditor in part liquidation of the debt has of
course the same effect as a payment to himself : Hart v. Stephens, 6 Q. B.
937 ; Worthington v. Grimsditch, 7 Q. B. 479 ; see Clarke v. Hooper, 10 Bing.
450. In Bodfjer v. Arch, 10 Exch. 333, the maintenance of a child agreed to
be taken in satisfaction of interest, was held to be a payment and to take the
case out of the statute. [In Amos v. Smith, 1 H. & C. 238, the trustees
under a marriage settlement lent the husband at intei'est, on the security of
his and A.'s bond conditioned for payment of interest, some of the trust
money settled to the separate use of the wife. No interest was paid, but the
wife gave the trustees receipts for it under an arrangement that it should be
considered as paid, and it was held that the transaction amounted to a pay-
ment or satisfaction so as to take the case out of the statute. So also 3Iaber
V. Maber, L. R. 2 Ex. 153; 36 L. J. Ex. 70.]

Stat. 9 G. 4, cap. 14, also enacts, [s. 3,] " that no indorsement or memoran-
dum of anj' payment made upon any bill of exchange, promissory note, or
other writing, (that is, other Avriting constituting the contract according to
the dictum of Cresswell, J., in Bradley v. James, 13 C. B. 822, whei'e it was
licld that the statute does not exclude such a memorandum altogether, but
only makes it insufficient of itself), i)j', or in behalf of, the person to whom
such payment is made, shall be deemed sufficient proof of payment to take
the case out of the operation of the Statutes of Limitation; " and, that part
payment may have that effect, it must be observed, that there are two
requisites besides proof of the naked fact of payment : — 1st, it must appear
that the payment w- as made on account of a larger debt; 2udly, that that
debt is the one sued for : Tippetts v. Heane, 4 Tyrwh. 775. See the judgment
of Parke, B., there, and see Holme v. Green, 1 Stark. 488. In Evans v. Davis,
4 A. & E. 840; Worthiufjton v. Grimsditch, stipra ; Burn v. Boulton, 2 C. B.
47G ; \_ColUnson v. Margesson, 27 L. J. Exch. 305; and Goodwin v. Parton, 41
L. T. N. S. 568,] the evidence was held sufficient for that purpose. In Wavgh
V. Co2)e, 6 M. & W. 829, the evidence was held insufficient. See further Mills
V. Foickes, 5 Bing. N. C. 455; Moore v. Strong, 1 Bing. N. C. 442.

The first requisite above mentioned involves this also, that the paj'ment be
made under the circumstances which do not rebut the implication of a
promise to pay the balance ; because it is only as giving rise to such an impli-
cation, and not by any specific effect of its own, that a payment operates :
Wainman v. Kinman, I Exch. 118 [and see Bigg v. ifoggridge, 2 H. & X. 567;
Morgan v. Roidunds, L. R. 7 Q. B. 493, 41 L. J. Q. B. 187] ; yet see Goddard
V. Ingram, 3 Q. B. 839 ; \_Ex piarte lopping, 34 L. J. Bankr. 44,] for which
reason the payment must also be before action brought." Bateman v. Pindar,
3 Q. B. 574, overruling Yea v. Funraker, 2 Burr. 1099.

The second requisite mentioned aijove has led to a discussion whether,
where there are two clear and undisputed debts, either can be taken out of
the statute by evidence of a part payment not specifically appropriated by the

900 WHITCOMB Y. AVHITING.

clebtoi'; upon which question tlic Court of Common Pleas is said to have
incidentally expressed an opinion in the negative : Burn v. BouUon, 2 C. B.
476 ; but, it [has since been held] to be [in general] a proper question for
the jury, whether the payment was made generally on account of Avhatevcr
mii?lit be due from tlie debtor at the time, and if so both the debts would l)e
saved. [ Walker v. Butler, G E. & B. 506; and see Cullinson v. Margesson, 27
L. J. Exch. 305, per Martin, B.] In Mills v. Fowkes, 5 Bing. N. C. 455, it
was held that though a creditor has a right to appropriate a payment made
generally to an item barred by the Statute of Limitations, still sucli payment
is not a payment on account so as to take the I'emainder of tlie demand out
of the statute. Accord, Waller v. Lacy, 1 Sc. N. R. 180; 1 M. & Gr. 54, S. C. ;
\_Nash V. Ilodr/son, 1 Kay, 650; S. C. on appeal, 6 De G. M. & G. 474,jjer
Knight-Bruce, L. J. ; contra Turner, L. J.

In that case the defendant being indebted to the plaintiff on three promis-
sory notes, one of which was for 200Z., on application by the plaintiff for
payment of interest, paid him 5^ on account generally. At the time of the
payment tlie 200?. note was the only one of the notes whicli was not barred
by the statute, and tlie i)laintiff appropriated the 5/. to payment of interest
on that note ; and upon the question whether the payment tooiv that note out
of the statute, tlie Court of Appeal was agreed that it did; liut the judgment
of Kniglit-Unice, L. J., proceeded upon tlie ground of tlie appropriation.
The Lord Chancellor (Cranworth) said, " The cases show that a simple pay-
ment of money does not take a debt out of the statute, and that the payment
must be of a smaller sum on account of a larger. What I deduce from them
is, that where a payment is made as principal, the effect of it will l)e to take
out of the statute any debt Avhich is not baiTed at the time of payment, but
that it will not revive a debt which is then barred ; and that whei'e tliere are
several debts, tlie inference will be that the payment is to be attributed to
those not burred. What may be the effect whei'e there is a single debt con-
sisting of several items, some of wliich are barred, and some not, may be
doubtful. Exactly the same principle applies if the payment is made in
respect of interest. It appears to me that in this case, thei-e being three
promissory notes, two barred and one not barred, and a payment made on
account of interest generally, this payment must be attributed to the note
which was not barred; and if this were not so, the only effect would be to
treat it as a payment on account of all, so that in either case the 2001. note
would be kept alive."]

In Willis V. Nevham, 3 Y. & J. 518, the Court of Exchequer held, that a
verbal acknowledgment of part payment of a debt was not sufficient proof
thereof within this statute ; the import of which they construed to be, that
in no case should a mere verbal acknowledgment take a case out of the
Statute of Limitations, whether that acknowledgment were of the existence
of the debt, or of the fact of payment. Vide Trentham v. Deverill, 3 Bing.
N. C. 397. The authority of Willis v. Newham was, however, repeatedly
questioned, though it was acted upon in Bayleij v. Ashton, 12 A. & E. 493; 4
P. & D. 204, S. C. ; Maghee v. O'Neil, 7 M. & W. 531 ; Eastioood v. Savile,
9 M. & W. 615; Clarke v. Alexander, 8 Scott, N. R. 147, and the case has been
at length overruled in Cleave v. Jones, 6 Exch. 573, where the demand was
upon a promissory note for 350L and interest, and the Statute of Limitations
was saved by evidence of an unsigned entry in the defendant's book in her
handwriting " 1843, Cleave's interest on 350Z. — 11. 10s." [And see Echcards
V. Jones, 1 Kay & J. 534. In Newboidd v. iitnith, 29 Ch. D. 882, an entry by

WHITCOMB Y. WHITING. 901

the deceased creditor in his diary, " Smitli, C E., cash on account of rent and
interest 50/-," Avas lield inadmissible in evidence on belialf oi' tlie creditor as
an admission tliat interest liad been paid, so as to revive tlie right barred
under tlie Statutes of Limitations to bring a foreclosure action.]

It Avas held, even before Cleave v. Jones, that written and signed evidence
of appropriation may be confirmed by parol, Bevan v. Gethiny, 3 Q. B. 740;
and that if the payment be proved as a fact, the appropriation of that pay-
ment to the debt which it is sought to take out of the Statute of Limitations
may be proved by an admission, Waters v. T'omlcins, 2 C. M. & R. 72G. That
action Avas brought to recover the amount of five notes, one for 100?., two
for 50?., and two for 20?. each; the evidence upon an issue joined on plea of
actio non accrevit infra sex annas was, that within six j'ears the maker, the
defendant, on application to him, said, his wife would have called on the
holder and paid money on account of the interest on 200?., but for their
child's illness; about a fortnight after Avhich, the wife called, and paid 15s.,
without saying on what account; on another occasion the defendant sent
word to the testator that his wife was in Wales, or would have called icith
the interest; and that the wife on other occasions made payments to the
testator, who said, at the time, he should be glad if the interest were more
regularly paid. This evidence was held to warrant the jury in finding
a verdict for the plaintifl". See, too, Bevan v. Gething, 3 Q. B. 740, where,
however, Coleridge, J., expressed a doubt as to the correctness in principle
of Waters v. Tomkins. Nor need the writing Avhich is relied on for the
purpose of taking a debt out of the operation of the statute specify its
amount; that may be proved by parol: Bird v. Gammon, 3 Bing. N. C. 888;
Waller v. Lacy, 1 M. & Gr. 54, 1 Sc. N. R. 186, S. C. ; Dickenson v. HatfieU,
1 Moo. & R. 141 ; Chealeij v. Dalby, 4 You. & Coll. 228; [Sidivell v. Mason, 2
H. & N. 30r,.]

Wlien a bill is given on account of part of a debt, and is paid by the
di'aAvee, the statute is not avoided by such payment, though it may be by
the deliA'ery of the bill, Irving v. Veitch,3 M. & W. 90; Ttirneij v. Dodwell,
3 E. & B. 13G. Whether the promise implied from part-payment to the
holder of a negotiable instrument is itself negotiable, qucere. See Cripj^s v.
Davis, 12 M. & W. 159. [Gale v. Capern, 1 A. & E. 104, per Patteson, J.

It is perhaps convenient to refer shortly in this place to a question which
has not been discussed in the earlier editions of these notes, viz., what
is a sufficient written acknowledgment to save the statutes, apart from the
proviso as to payment in section 1 of Lord Tenterden's Act. The principles
are thus summed up by Mellish, L. J., in In re River Steamer Co., Mitchell's
Claim, L. R. G Ch. at p. 828, which passage is cited by Cleasby, B., in Skeet
V. Lindsay, 2 Ex. D. 316, 46 L. J. Ex. 251. " There must be one of these
three things to take the case out of the statute. Either there must be an
acknowledgment of the debt fi-om which a promise to pay is to be implied,
or secondly, there must be an unconditional promise to pay the debt, or'
thirdly, there nnist be a conditional promise to pay the debt and evidence-
that the condition has been performed."

With regard to the first of these three propositions, it should be observed
that by a long train of authorities commencing Avith Tanner v. Smart, 6 B. &
C. 603, it is conclusively settled that an absolute acknoAA'ledgment of the debt
by itself is sufficient, because you may imply from it an unconditional promise
to pay the debt, per Cleasby, B., in Skeet v. Lindsay, %ihi sup. A recent deci-
sion on tliis point Avill be found in Green v. Humphreys, 26 Ch. D. 474, 53 L.

902 WHITCOMB V. WHITING.

J. Ch. 625, where the Court of Appeal, reversing the decision of Pollock, B.,
held that there was not siitlicient acknowledgment.

These being the acknowledged principles, the application of them to partic-
ular cases for the purpose of determining whether particular written expres-
sions amounted to an absolute acknowledgment or an unconditional pi'omise,
has naturally been productive of much litigation, and in some instances has
caused a remarkable diversity of judicial opinion. See the cases collected in
Chasemore v. Turner, L. R. 10 Q. B. 500, 45 L. J. Q. B. 66; Quincetjv. S'harpe,
1 Ex. D. 72, 45 L. J. Ex. 347, and Meyerhoff v. Froehlich, 4 C. P. D. 63. In
the first of these cases, the following letter written by the defendant to one
of the plaintifls was put in at the trial at Nisi Prius. " My dear Sir. The
old account between us which has been standing over so long has not
escaped our memory, and as soon as we can get our aftairs arranged, we will
see you are paid. Perhaps in the meantime you will let your clerk send me
an account of how it stands." At the trial Martin, B., ruled that the letter
was sufficient to take the case out of the Statute of Limitations, and directed
a verdict for the plaintiffs, refusing leave to move, but gave a stay of execu-
tion. The majority of the Court of Queen's Bench, viz., Blackburn and
Archibald, JJ., held, Mellor, J., dissenting, that it was insufficient without
further evidence and made absolute a rule for a new trial. In the Exchequer
Chamber, however (Lord Coleridge, C. J., dissenting), this judgment was
reversed by Cleasby, Pollock and Amphlett, BB., and Grove and Denman, JJ.,
and the verdict for the plaintiff stood. But if there be an express promise
there can be none by implication, and if the express promise be a conditional
one the condition must be fulfilled : Mojcrhoff v. Froehlich, 4 C. P. D. 63, 48
L. J. C. P. 4L If there is an unqualified admission that tliere is a pending
account between two parties which has to be settled, that " is an admission
from which you may infer a promise that when the account is settled the
balance shall be Tpak\," jjer Kay, J., Banner v. Berridge, 18 Ch. D. 274.

An acknowledgment of a simple contract debt is insufficient to save the
statute, unless made to the creditor or his agent, Fuller v. Bedman, 26
Beav. 614; but an acknowledgment of a specialty debt will suffice, under
3 & 4 W. 4, c. 42, s. 5, though made to a stranger, Moodie v. Bannister, 4
Drewr. 432.]

In Bodfjer v. Arch, 10 Ex. 333, it was held that payment to any person
acting as representative of an intestate accrued for the benefit of the admin-
istrator when appointed.

\_Semhle that an acknowledgment in a letter written without prejudice is of
no avail if an offer contained in it is not accepted : Re River Steamer Com-
pany, L. R. 6 Ch. 822.]

There is in the 9 G. 4, c. 14, a proviso, "that no memorandum or other
writing made necessary by this act shall be deemed to be an agreement
within any Stamp Act." The effect of this appears to be to render the stamp
unnecessary where the agreement is put in merely for the purpose of avoid-
ing the Statute of Limitations, the debt having been proved aliunde. But if
it were put in as the only evidence of a debt though more than six years old,
semble that it would require a stamp, Morris v. Dixon, 4 A. & E. 845. The
proviso has been held to be inapplicable to the case of an unstamped promis-
sory note, Jones v. Ryder, 4 M. & W. 32 ; [but where a promissory note made
in 1846 was indorsed by the maker and the date altered to 1866, it was held
that a new stamp was not necessary, Bourdin v. Greenwood, L. R. 13 Eq. 281,
41 L. J. Ch. 73.]

WHITCOMB V. WHITIisG. 903

1. What claims barred by the statute can be revived. — It

seems that the claim, if not necessarily an actual debt, must be
an obligation arising from an executed consideration and con-
sequently implied in law.

A count in special assumpsit on an express contract which
has been barred by the statute cannot, in accordance with prin-
ciple, be sustained by evidence of a new promise within six
years ; Carshore v. Huyck, 6 Barb. 583.

The difficulty is that in such a case, as the plaintiff has to
allege and prove that a promise was actually made by the de-
fendant at a certain time, the reply is a departure from the
original statement of the cause of action.

Where indebitatus assumj^sit will lie, there is no difficulty, for,
from the loan, or the sale of deliver}-, or other facts, the law
implies a promise to pay, a promise of which there is a new
breach on each recurring day that the debt continues and
remains unpaid. Primd facie this relates back to the period
when the debt was contracted, but, as the plaintiff has only to
state and prove facts from which such promise can arise, there
is nothing inconsistent with this in the promise arising at any
other time.

For example, the plaintiff alleges that the defendant became
indebted for money had and received, &c., and then avers a
promise to pay, not existing in fact, but a legal inference from
the premises and sustained by any evidence of indebtedness at
the time the action was begun. To a plea of the statute, the
plaintiff can show that the money was "had and received"
within six years, or an acknoAvledgment of the existence of the
debt within that period which renders evidence unnecessary;
Haymaker v. Haymaker, 4 Oh. St. 272 ; Mc Curry v. McKesson,
4 Jon. 510.

The replication that the cause of action accrued within six
years is not a departure but in the nature of a new assignment,
indicating that the plaintiff relies, not on the obligation which
arose in the first instance from the receipt of the consideration,
but on the promise which the law implies on the indebtedness
being shown at some later period by evidence of an express
promise, a part payment, or other acknowledgment.

Precisely the same principles apply when a new promise is
relied upon to support an action on a promissory note barred
by the statute.

904 WHITCOMP. V ^VMITTNG.

The plaintiff sets out the making of the note and avers a
consequent liability and promise to pay, not existing in fact
but implied in law from the existence of the liability.

Whenever by an acknowledgment or new promise at any
later period, the obligation can be shown to still exist, in the
same way another implied promise to pay arises. Hence such
an acknowledgment may be given in evidence to suppose the
implied promise without any variance from the declaration ;
Leaper v. Tatton, 16 East 420.

It is well settled that a promise or acknowledgment will not
affect the operation of the statute on actions of tort ; Oothout
V. Thompson, 20 Johns. 277 ; Ott v. Whitworth, 8 Humph.
494.

2. "What will remove the bar of the statute. — A. An express
promise to pay tlie debt. All the cases agree on this point.

B. A promise to pay it, not express but implied from the
circumstances ; Johnson v. Evans, 8 Gill 155 ; Ross v. Ross, 20
Ala. 105 ; Reener v. Crull, 19 111. 109 ; Ditch v. Vollhardt, 82
111. 134 ; Sprogle v. Allen, 38 Md. 331 ; Oakson v. Beach, 36
Iowa 171 ; Sigourney v. Drury, 14 Pick. 390 ; Phelps v. Wil-
liamson, 26 Vt. 230; Joslyn v. Smith, 13 Vt. 357.

The important consideration is, under what circumstances a
promise will be implied.

" A jury will be authorized and bound to infer such promise
from a (1) clear, (2) unconditional and unqualified admission
of the existence of the debt, (3) at the time of such admission,
if, (4) unaccompanied with any refusal to pay or declaration
indicative of any intention to insist on the Statute of Limita-
tions as a bar."

Shaw, C. J., in Sigourney v. Drury, 14 Pick. 390 ; Knight v.
House, 29 Md. 194.

(1) That the acknowledgment must be " clem- " and unam-
biguous ; see Bryan v. Ware, 20 Ala. 687 ; Grant v. Ashley, 7
Eng. 762 ; Bell v. Crawford, 8 Gratt. 119 ; Ten Eyck v. Wing,
1 Mich. 40 ; Penley v, Waterhouse, 3 Clarke 418 ; Stewart v.
Rickens, 4 Zab. 427 ; Conwell v. Buchanan, 7 Blackf . 537 ; Rob-
bins V. Farley, 2 Strob. 348 ; Dickinson v. McCanry, 5 Ga. 486
McLellan v. Albee, 17 Me. 184 ; Pray v. Garcelon, 17 Me. 145
Porter v. Hill, 4 Greenlf. 41 ; Ventris v. Shaw, 14 N. H. 422
Shaw V. Newell, 1 R. I. 488 ; Frey v. Kirk, 4 Gill and J. 509
Taylor v. Stedman, 11 Ired. 447 ; Cross v. Connor, 14 Vt. 394

WHITCOMB V. WHITING. 905

White V. Dow, 23 Vt. 300 ; Ayres v. Richards, 12 111. 146 ; Har-
rison V. Handley, 1 Bibb 443.

It need not be made ex2:)ressly or in words, bnt may be im-
plied from any act which necessarily presupposes the existence
of the debt and an obligation to pay it ; Bowman v. Downer, 22
Vt. 532 ; Spangler v. McDaniel, 3 Ind. 275 ; Grayson v. Taylor,
14 Texas 672.

The burden is on the plaintiff, so he must make it appear
that the debt was actually due and that the debtor, knowing
this, meant to acknowledge a liability to pay it; Gibson v.
Grosvenor, 4 Gray 606 ; Magberry v. Willoughby, 5 Neb. 370 ;
Wakeman v. Sherman, 5 Seld. 88 ; Chambers v. Garland, 3
Iowa 322 ; Pritchard v. Howell, 1 Wis. 131 ; Smith v. Fly, 24
Texas 345 ; Gilmer v. McMurray, 7 Jon. 479 ; Bangs v. Hall,
2 Pick. 368 ; Moore v. Hyman, 13 Ired. 272 ; Goodwin v. Buz-
zell, 35 Vt. 9 ; Evans v. Carey, 29 Ala. 99 ; Wilcox v. Williams
5 Nev. 206 ; Leigh v. Linthecum, 30 Texas 100.

It is not enough for the debtor to admit that the debt is due,
unless it appears that he means to pay it ; Wakeman v. Sher-
man, 5 Seld. 85 ; Gray v. McDowell, 6 Bush 375.

Though, in the absence of other evidence, a man that admits
a debt will be presumed willing to pay it ; Chambers v. Gar-
land, 3 Iowa 322 ; Stockett v. Sasscer, 8 Md. 374 ; Pritchard v.
Howell, 1 Wis. 131; Evans v. Carey, 29 Ala. 99; Phelps v.
WiUiarason, 26 Vt. 230.

The acknowledgment must be shown to relate to the debt
which is the cause of action ; Nash v. Hodgson, 1 Kay 650 ;
Stafford v. Bryan, 3 Wend. 532 ; Hart v. Boyt, 54 Miss. 547 ;
Martin v. Broach, 6 Ga. 21 ; Lockhart v. Eaves, Dud. (S. C.)
321 ; Arey v. Stephenson, 11 Ired. 86 ; Brailsford v. James, 3
Strob. 171 ; Broxley v. Gayle, 19 Ala. 151.

But this Avill be presumed unless the existence of more than
one debt is shown ; Bailey v. Crane, 21 Pick. 223 ; Woodbridge
V. Allen, 12 Mete. 470 ; Gibson v. Grosvenor, 4 Gray 606 .
Coles V. Kelsey, 2 Texas 541 ; Smith v. Deeper, 10 Ired. 86 :
Moore v. Hyman, 13 Ired. 272 ; Brown v. State Bank, 5 Eng.
134 ; Wood v. Wylds, 6 Eng. 754 ; Guy v. Tams, 6 Gill 82 ;
Penley v. Waterhouse, 3 Clark 418; Mitchell v. Clay, 8 Tex.
413; Dobbs v. Humphries, 10 Bing. 446; Corey v. Bath, 35
N. H. 530, 550; Boyd v. Hurlbert, 41 Mo. 264; Whitney v.
Bigelow, 4 Pick. 110.

906 WHITCOMB V. WHITING.

To the contrary, apparently, however, see Robl)ins v. Farley,
2 Strob. 348; Faison v. Bowden, 72 N. C. 405; Pray v. Garce-
lon, 5 Shep. 145.

Where there is an unsettled account containing several
charges or items, especially if part of them are barred by the
statute and part not, a general admission of indebtedness, not
naming the amount due or mentioning any specific portion, is
too indefinite to affect the statute ; Hull v. Richardson, 19
Penn. St. 388 ; Morgan v. Walton, 4 Pa. St. 321 ; Harbold v.
Kuntz, 16 Pa. St. 210 ; Suter v. Sheeler, 22 Pa. St. 308 ; Clarke
V. Dutcher, 9 Cow. 674; Buckingham v. Smith, 23 Conn. 453;
Peebles v. Mason, 2 Dev. 367 ; Allen v. Allen, 1 Bush 60 ;
Hale V. Hale, 4 Humph. 183.

When there is no doubt as to what debt is meant, it is not
necessary that the amount should be mentioned in the acknowl-
edgment, provided it is certain and liquidated ; Thompson v.
French, 10 Yerg. 452 ; Hazlebaker v. Reeves, 2 Jon. 264 ; Davis
V. Steiner, 14 Pa. St. 275 ; Dinsmore v. Dinsmore, 21 Me. 433.

A promise to " settle " an unliquidated claim, or to " pay
what is due," or to "refer," may or may not be a sufficient
acknowledgment. It is a question of intention. In most cases
it has been held insufficient. It is ambiguous whether the
debtor means to pay or merely to adjust or liquidate ; Peebles
V. Mason, 2 Dev. 367 ; Faison v. Bowden, 72 N. C. 405 ; Suter
V. Sheeler, 22 Penn. St. 308 ; Harbold v. Kuntz, 16 Penn. St.
210 ; Emerson v. Miller, 27 Penn. St. 278 ; Sutton v. Burruss,
9 Leigh, 381 ; Bell v. Crawford, 8 Gratt. 110 ; Leigh v. Linthe-
cum, 30 Texas 100 ; BrodcUe v. Johnson, 1 Sneed 464 ; Mills
V. Taber, 5 Jon. 412 ; Loftin v. Aldridge, 3 Jon. 328 ; Moore v.
Hyman, 13 Ired. 272 ; Mask v. PhiUer, 32 Miss. 237 ; Shaw v.
Allen, 1 Bus. 58; Bray ton v. Rockwell, 41 Vt. 621.

In others, very similar remarks have been held to remove the
bar ; Hunter v. Kittredge, 41 Yt. 621 ; Walker v. Butler, 6 E.
& B. 506 ; Higdon v. Stewart, 17 Md. 105 ; WarUck v. Peter-
son, 58 Me. 408.

When the debt is unliquidated, as a rule, the amount must
be specified which the debtor is willing to pay.

A promise not to plead the statute has commonly been re-
garded as the same thing as a promise to pay the debt ; Pad-
dock V. Colby, 18 Yt. 485 ; Brown v. Bank, 5 Eng. 134 ; Smith
V. Leeper, 10 Ired. 86 ; Randon v. Toby, 11 How. 493 ; Cooper v.

WHITCO>EB V. WHITING. 907

Parker, 25 Vt. 502; Noyes v. Hall, 28 Vt. 645; Utica Ins.
Co. V. Bloodgood, 4 Wend. 652 ; Allen v. Webster, 15 Wend.
284.

Part Payment of a debt whether in money, note, or goods is
usually intended as an admission of its existence and conse-
quently has the same effect as any other unqualified acknowl-
edgment; Winchell v. Hicks, 18 N. Y. 559; Shoemaker v.
Benedict, Kern. 176, 185 ; Isley v. Jewett, 2 Mete. 168 ; Sibley v.
Lumbert, 30 Me. 253.

It must ap})ear that it was intended as a part payment of a
greater sum ; prima facie a payment is intended as a discharge
wholly, or j^ro tanto without relation to anything else ; Liver-
more V. Rand, 26 N. H. 85 ; Pond v. Williams, 1 Gray 630 ;
Shoemaker v. Benedict, 1 Kern, 176 ; Smith v. Eastman, 3 Cush.
355 ; Prenatt v. Runyon, 12 Ind. 174.

It must be considered in the light of all the surrounding
circumstances ; Smith v. Eastman, 3 Cush. 355 ; Hale v. Morse,
49 Conn. 481 ; Jewett v. Petit, 4 Mich. 508 ; Bell v. Crawford,
8 Gratt. 110 ; Da\as v. Amy, 2 Graft. 412 ; and should go to the
jury like any other fact ; Hollis v. Palmer, 2 Bing. (N. C.) 713 ;
Hodge V. Manley, 25 Vt. 210 ; Armstead v. Brooke, 18 Ark.
521 ; Livermore v. Rand, 26 N. H. 85 ; Arnold v. Downing, 11
Barb. 554.

The payment of interest is usually an admission that the
principal is due and payable ; Sanford v. Hayes, 19 Conn. 591 ;
Marcelin v. The Creditors, 21 La. An. 423 ; Fryeburg v. Osgood,
21 ]\Ie. 176. But a part payment of principal is not necessarily
any acknowledgment as to interest ; Collyer v. Willock, 4
Bing. 313.

When there are several obligations contracted at different
times, and a general payment without appropriation by the
debtor, the creditor can usually appropriate it most advanta-
geously to himself and revive that portion, if any, of the obliga-
tions barred by the statute, or apply it generally to the whole
indebtedness ; Peck v. N. Y. Steamship Co., 5 Bosw. 225 ;
Dyer v. Walker, 54 Me. 18.

Some cases hold that he can apply it to what debt he pleases,
but cannot distribute it so as to take several debts out of the
statute ; Ayre v. Hawkins, 10 Yt. 28 ; Goodwin v. Buzzell, 35
Vt. 9.

In many of those states where an acknowledgment or new

908 WHITCOMB V. WHITING.

promise is required by the statute to be in writing, an excep-
tion is made of an acknowledgment by part payment which
may be shown by parol evidence ; McLaren v. McMartin, 36
N. Y. 88; Sibley v. Lumbert, 30 Me. 253; Egery v. Decrew,
53 Me. 392 ; Ketchem v. Hill, 42 Ind. 64.

The rule is different in Georgia where a writing is required
in a^Ll cases ; Caldwell v. Ferrell, 20 Ga. 94 ; Holland v. Chaffin,
22 Ga. 343. An endorsement of a part payment on a note, not
made by the debtor, is no evidence that the payment was made ;
Porter v. Blood, 5 Pick. 54; Jones v. Jones, 4 N. H. 219;
Chandler v. Lawrance, 3 Mich. 261 ; but if made by the creditor
before the statute has run it can go to the jury as an admission
against interest, and consequently available for both parties ;
Roseboom v. Billington, 17 Johns. 182 ; Clapp v. Ingersol, 11 Me.
83 ; Concklin v. Pearson, 1 Rich. 391 ; Haven v. Hacheway,
20 Me. 245 ; Smith v. Simms, 9 Ga. 418 ; Young v. Perkins, 29
Minn. 173 ; Maskell v. Pooley, 12 L. An. 661. In several states
statutes require an endorsement to be signed by the debtor, in
order to be in itself sufficient evidence of payment.

(2) Where an acknowledgment is " qualified " or " eondi-
tional" the bar of the statute is not removed until the terms
or conditions are fulfilled ; Cocks v. Weeks, 7 Hill 45 ;
Farmers' Bank v. Clarke, 4 Leigh 603 ; Luna v. Edmiston, 5
Sneed 159 ; Hayden v. Johnson, 26 Vt. 758 ; Mattocks v.
Chadwick, 71 Me. 313 ; Wachler v. Alljee, 80 111. 47 ; Shaw v.
Newell, 1 R. I. 488 ; Sweet v. Franklin, 7 R. I. 355 ; Wake-
man V. Sherman, 4 Seld. 85 ; Stewart v. Reckless, 4 Zab. 427 ;
Bell V. Morrison, 1 Pet. 351 ; Farley v. Kustenbader, 3 Penn.
St. 418 ; Pearson v. Darrington, 31 Ala. 227 ; McGlensey v.
Fleming, 4 Dev. & B. 129; Wolfe v. Fleming, 1 Ired. 290;
Brenneman v. Edwards, 55 Iowa 374 ; Smith v. Eastman, 3
Cush. 355 ; Mumford v. Freeman, 8 Mete. 432.

(3) The admission must show a willingness to assume an
immediate ohligation, and not be a mere expression of hope or
expectation ; Blakeman v. Fonda, 41 Conn. 565 ; Norton v.
Shepard, 48 Conn. 141 ; Ecker v. First Nat. Bank, 59 Md. 291 ;
Kirby v. Mills, 78 N. C. 124 ; Marseilles v. Kenton, 17 Pa. St.
238 ; Oakes v. Mitchell, 15 Me. 360 ; or an offer to compromise
or a payment by way of compromise ; Brenneman v. Edwards,
55 Iowa 374; Winchester v. Sibley, 132 Mass. 273.

(4) There must be nothing in what is said at the time of the

AVHITC031U Y. ^VHITI^'G. 909

unqualified admission or in the attendant acts of the defendant,
inconsistent with an intention to pay the obligation ; Fries v.
Boisselet, 9 S. & R. 128 ; Church v. Feterow, 2 R. & W. 301 ;
Hogan V. Bear, 5 Watts 111 ; Zacharias v. Zacharias, 23 Penn.
St. 452; Wesner v. Stern, 97 Pa. St. 322; Wctzell v. Bussard,
11 Wheat. 315 ; Moore v. Bank of Columbia, G Pet. 92 ; Allen v.
Webster, 15 Wend. 284; Stafford v. Richardson, 15 Wend. 302;
Philps V. Stewon, 12 Vt. 256 ; Manning v. Wheeler, 13 N. H.
486 ; Thayer v. Mills, 14 Me. 300 ; Goldsby v. Gentle, 5 Blackf.
436 ; Hay v. Kramer, 2 W. & S. 137. Though the debtor will
not be allowed to lull the creditor to sleep by ambiguovis lan-
guage calculated to deceive him.

When a debtor has once made his election to be bound, he
cannot afterwards recede from it; Barley v. Crane, 21 Pick.
323; Mumford v. Freeman, 8 Meic. 432. The debtor may
remove the bar as to part of a debt, and not as to all if he so
wills ; Graham v. Keys, 29 Penn. St. 189 ; McDonald v. Under-
bill, 10 Bush 585.

3. By ■whom must an acknowledgment or promise be made ? —
A. In G-eneral. It seems well settled that an acknowledg-
ment by one can never be used against another who has not
authorized or ratified it, when the contract of each is several,
though founded on the same consideration ; Bowcbe v. Hampton,
6 Rich. 208 ; Stowers v. Blackburn, 21 La. An. 127. For ex-
ample, the acknowledgment of the endorser of a note will not
operate against the maker or that of the maker against the
endorser; Bibb v. Peyton, 11 S. & M. 275; Dean v. Munroe,
32 Ga. 28.

As to tlie effect of payment or acknowledgment I)}' one on
the obligation of the other in case of principal and surety,
see Haight v. Avery, 10 Hun 252; Nat. Bank v. ]>allou, 49
N. Y. 155; Dele van "^r. Cotton (Wise.), 9 N. W. Rep. 926, 928.

Tlie joint nature of the obligation must a[)})ear aliunde and
not merely by the acknowledgment ; Hackley v. Hastie, 3
Johns. 536 ; Shelton v. Cocke 3 Munf. 240 ; Smith v. Ludlow,
9 Johns. 267.

• B. Joint Debtor or Contractor. — The decision in Whitcomb
V. Whiting, as to the effect, as regards the Statute of Limita-
tions, of unauthorized acknowledgment or pa3nnent by a joint
contractor, is law to-day in but very few of the American states
or territories. In some of them the courts have from the first

910 WHITCOI^IB V. WHITING.

refused to follow it; in most of them the contrary has been
established by statute. The general rule now is that in all
cases the promise or acknowledgment must be made by the
debtor whom it is sought to charge, or his authorized agent ;
Smith V. Ryan, 66 N. Y. 352 ; Kelly v. Weber, 27 Hun 8.

This rule has been established by the Courts in the following
states : —

Florida : Tate v. Clements, 16 Florida 339. Indiana : Con-
key V. Barbour, 22 Ind. 196. JYetv ffampshire : Whipple v.
Stevens, 22 N. H. 219. Pennsylvania : Coleman v. Fobes, 22
Pa. St. 156. Tennessee : Belotes Exrs. v. Wynne, 7 Yer. 534 ;
and also seems to be the law in Illinois.

In the following states and territories it has been embodied
in statute, and in all but two or three of them the promise or
acknowledgment, if not by part payment, must be made in
writing signed by the party to be charged: —

Alabama : Code 1876, sec. 3240. Arizona : Compiled Laws
1877, ch. 35, sec. 2108. Arka7isas : Digest of Stats. 1874, ch.
88, sees. 4134, 4135. California : Code of Civil Procedure, sec.
10360. Colorado : General Laws 1877, ch. 60, sec. 19. Dakota:
Revised Code 1877, part II. ch. 6, sec. 73. G-eorgia: Code

1873, part II. title VII. ch. 9, art 9, sees. 2930-2934.
Idaho : General Laws 1880, 1881, sec. 178. Illinois : Revised
Stats. 1881, ch. 83, sec. 16. Indiana : Statutes 1876, vol. II.
part II. ch. 1, art. 12, sees. 220-223. Iowa : Revised Code 1880,
title XVII. ch. 2, sec. 2539. Kansas : Compiled Laws, ch. 80, art.
3, sec. 24. Louisiana : R. S. 1876, sec. 2818. 3Iaine : Revised
Stats. 1883, ch. 81, sees. 97-100. 3Iassachusetts : Public Stat-
utes 1882, title V. ch. 197, sees. 15-18. Michigan : Compiled
Laws 1871, sees. 7164, 7165. Minnesota : General Stats, ch. 66,
title II. sec. 24. Mississijjpi : Revised Code, 1880, ch. 76, sec.
2688. Missouri : Revised Stats. 1879, ch. 48, sees. 3248, 3250.
Montana: Revised Stats. 1879, fu'st div., title III. sec. 53.
Nebraska : Compiled Stats, part II. title II. sec. 22. Nevada :
Compiled Laws 1873, sec. 1045. Neio Jersey : Revision of

1874, Lim. of actions, sees. 10,11. New Mexico: General Laws,
art. 32, ch. 73, sec. 13. New York : Code of Civil Procedure,
sec. 395. North Carolina: Code of Civil Procedure, ch. 17,
title IV. sees. 50-52. Ohio: Revised Stats. 1880, sec. 4992.
Oregon : Civil Code, ch. 1, title II. sec. 24. South Carolina :
Code of Procedure, sec, 133. Texas : Revised Stats. 1879, art.

WHITCOMB V. WHITING. 911

8219. Utah: Compiled Laws 1876, title XVIII. Vermont:
Revised Laws 1880, cli. 50, sees. 971-977. Virginia : Code 1873,
title XLV. ch. 146, sec. 10. Wasliington Territory : Code, sec. 44.
West Vin/inia : Revised Stats. 1870, eh. 119, sec. 8. Wiscoiisin:
Revised Stats. 1878, sees. 4243-4248. Wyominu : Compiled
Laws 1876, ch. 13, sec. 21.

This leaves only four states where possibly it would be still
followed : Connecticut, Delaware, Maryland, and Rhode Island;
Caldwell v. Sigourney, 19 Conn. 37 ; Schindel v. Gates, 46 Md.
604; Wheelock v. Doolittle, 18 R. I. 440.

In jNIaryland, however, there is the limitation that the ac-
knowledgment must be made before the statute has once run,
on the ground that the common interest which alone makes the
admission of one debtor binding on another ceases whenever
the statute takes effect, and, therefore, they are no more respon-
sible for each other's words and actions than mere strangers.

Ratification may take the place of authorization, but mere
neglect by one not actually present to disclaim the act of a co-
contractor on hearing of it, will not be enough to ratify his ac-
knoAvledgment ; Littlefield v. Littlefield, 91 N. Y. 203 ; Gould
V. Cayuo^i Bank, 86 N. Y. 75 ; Glick v. Crist, 37 Ohio St. 388 ;
Mainzinger v. Mohr, 41 Mich. 685 ; Whipple v. Stevens, 2 Fos.
227.

C. Partner. — Before dissolution, in accordance with the
general rule, one partner can bind another by an acknowledg-
ment, if given in the ordinary course of business, the partner-
ship relation making each the agent of the others. After
dissolution they are regarded in the same way as other joint
obligors; Baker v. Stackpole, 9 Cow. 420; Yale v. Eames, 1
Mete. 486 ; National Bank v. Norton, 1 Hill 572 : Mitchell v.
Ostrom, 2 Hill 520 j Schoneman v. Fegley, 7 Pa. St. 433; Clark
V. Brown, 86 Pa. St. 502; Lazarus v. Fuller, 89 Pa. St. 331;
Daniel v. Nelson, 10 B. Mon. 316: Hamilton v. Summers, 12 B.
Mon. 11 ; Hamilton v. Seaman, 1 Car. 185; Palmer v. Dodge, 4
Ohio St. 21 ; Tate v. Clements, 16 Fla. 339 ; Hance v. Hair, 25
Ohio St. 349; Campbell v. Brown, 86 N. C. 376.

So where Whitcomb v. ^Miiting is followed, one partner of
such firm can still by an acknowledgment revive a debt or con-
tract as to all ; Austin v. Bostwick, 9 Conn. 496 ; Caldwell v.
Sigourney, 19 Conn. 37 ; Turner v. Ross, 1 R. I. 88 ; Wheelock
V. Doolittle, 18 R. I. 440. And where Wliitcomb v. Whiting is

912 WHITCOMB V. WHITING.

not followed a fortiori^ unless expressly authorized, he can re-
vive it only as against himself ; Bell v. Morrison, 1 Pet. 351 ;
Exeter Bank v. Sullivan, 6 N. H. 12-1 ; Steele v. Jennings, 1
McMull. 297; Beloles Ex'rs v. Wynne, 7 Yerg. 534; Muse v.
Donelson, 2 Humph. 166 : Yandes v. Le Favour, 2 Blackf. 371 ;
Dickerson v. Turner, 12 Ind. 239; Lowther v. Chapell, 8 Ala.
353 ; Levy v. Cadet, 17 S. & R. 126 ; Searight v. Craighead, 1
P. & W. 135 ; Fonte v. Bacon, 24 Miss. 156 ; Briscol v. Anke-
tell, 28 Miss. 361 ; Palmer v. Dodge, 4 Ohio St. 21, 36 ; Myatts
V. Bell, 41 Ala. 222; Bush v. Stowell, 71 Pa. St. 208; Kallen-
bach V. Dickinson, 100 111. 427; Mayberry v. Willoughby, 5
Neb. 370.

Payment or other acknowledgment by one partner of a dis-
solved firm, under the direction of the other, binds both ; Haight
V. Avery, 16 Hun 252 ; McConnell v. Merrill, 53 Vt. 149.

The same is true, in all similar cases, for instance, when two
of three sureties referred the creditor to the principal, who
made a partial payment, the debt was held to be renewed as to
them, but not against the third surety who was ignorant of the
transaction ; Winchell v. Hicks, 18 N. Y. 559.

Proof that the firm was dissolved will not be a sufiicient
answer to a promise or acknowledgment by one of the partners,
unless it is shown that notice was given to the creditor ; Tap-
pan V. Kimball, 30 N. H. 136 ; Forbes v. Garfield, 32 Hun 389.

D. Executor or Administrator. — In many of the earlier and
some recent decisions an acknowledgment or promise by an
executor or administrator is held to have the same effect in
removing the bar of the statute as if it had been made by the
debtor in his Ufetime ; Whitaker v. "Whitaker, 6 Johns. 112 ;
Larason v. Lambert, 7 Halls 247 ; Chambers v. Fennemore, 4
Harr. 368 ; Baxter v. Penniman, 8 Mass. 133 ; Emerson v.
Thompson, 16 Mass. 429; Foster v. Starkie, 12 Cush. 324;
Whitney v. Bigelow, 4 Peck 110, 113 ; Semmes v. Magruder,
10 Md. 242; Walch v. McGrath, 59, Iowa 519; Black v. Do-
man, 51 Mo. 31 ; Ecker v. First Nat. Bank, 59 Md. 291 ; Griffin
V. The Justices, 17 En. 96 ; Shreve v. Joyce, 36 N. J. Law 44 ;
Northcut V. Wilkinson, 12 B. Mon. 408 ; Badger v. Gilmore, 33
N. H. 361.

The weight of authority is now against this proposition ;
Oakes v. Mitchell, 15 Me. 360 ; Bunker v. Athearn, 35 Me. 364;
Bloodgood V. Bruen, 8 N. Y. 362 ; Cayuga Bank v. Bennett, 5

AVHITCOMB V. WHITING. 913

Hiil 236 ; Mead v. Jenkins, 4 Redf. 369 (bnt see contra later
New York cases ; Cotter v. Quinlan, 2 Dem, 29 ; Matter of
])unn, 5 Dem. 124); Ciples v. Alexander. 2 Cons. R. 767;
Tullock V. Dunn, Ry. & M. 446 ; Caruthers v. Mardiss, 3 Ala.
599 ; Conoway v. Spicer, 5 llarr. 425 ; Fritz v. Thomas, 1 Whart.
71 ; Reynolds v. Hamilton, 7 Watts 420 ; Forney v. Benedict,
5 Penn. St. 225; Clark v. Maquire, 35 Penn. St. 259; Patter-
son V. Cobb, 4 Fla. 481 ; Henderson v. Illsley, 11 Sm. & M. 9 ;
Peck V. Botsford, 7 Conn. 172; Steel v. Steel, 2 Jon. 64; Moore
V. HillelHout. 14 Texas 312.

A few cases have attempted to draw a distinction between a
promise or part payment and a mere acknowledgment, but there
seems none in principle ; Baxter v. Penniman, 8 Mass. 133 ;
Bloodgood V. Bruen, 8 N. Y. 362.

In others, it has been intimated that an acknowledgment or
promise l)y all of several executors or administrators will re-
move the l)ar of the statute Avhen the same by part of their
number would not ; Conoway v. Spicer, 2 Harr. 425 ; Hueston
V. Hueston, 2 Ohio St. 488 ; Bloodgood v. Bruen, 4 N. Y, 362,
370 ; Caruthers v. Mardiss, 3 Ala. 599 ; Cayuga Bank v. Bennett,
5 Hill 236.

This distinction has been expressly repudiated in many
states, and it has been held that an express promise by one of
several executors or administrators will take the case out of
the statute as to all ; Johnson v. Beardslee, 15 Johns. 3 ; Briggs
V. Ex'rs of Starke, 2 Cons. R. Ill ; Hords Admrs. v. Lee, 4
Mon. 36 ; Griffin v. Justices, 17 Ga. 96 ; Shreve v. Joyce, 36
N. J. Law 44.

The matter is now quite generally regulated by statute.

E. Assifpiee of Insolvent Debtor. — In Clark v. Chambers
(Neb. 1885), 22 N. W. Rep. 229, it was held, citing ; Marienthal
V. Master, 16 Ohio 566 ; Stoddard v. Doane, 7 Gray (Mass.) 387;
Pickett V. King, 38 Barb. 193 ; Roosevelt v. Mark, 6 Johns. Ch.
266 ; that the payment of a dividend by the assignee would not
take the residue of the debt out of the statute, the Court re-
marking, '•'- While it cannot be said that the argument is all on
the side of the above cases, and there are high authorities hold-
ing the other way of tliinking, yet I think the weight of reason
as well as of authority is with them.

(4) To ■whom must the promise or acknovylcdgmeut be made ?
— Li many of the earlier cases it was held that any acknowledg-

914 WHITCOMB V. WHITING.

ment from which the continued existence of debt could be
inferred was sufficient whether made to a third party or to the
plaintiff in the action; Newkirk v. Campbell, 5 Ilarr. 380;
McRae v. Kennon, 1 Ala. 225 ; Soulden v. Van Rensselaer, 9
Wend. 297 ; Titus v. Ash, 24 N. H. 319 ; Philips v. Peters, 21
Barb. 351 ; Watkins v. Stevens, 4 Barb. 168 ; Carshore v. Huyck,

6 Barb. 585 ; Whitney v. Bigelow, 4 Pick. 110 ; Minkler v. Mink-
ler, 16 Vt. 193 ; Oliver v. Gray, 1 Harr. & G. 204 ; Bird v. Adams,

7 Ga. 505 ; St. John v. Garron, 4 Post. 225 ; Edmundson v. Penny,
1 Penn. St. 335 ; Hassenger v. Solus, 5 S. & R. 416 ; Evans v.
Carey, 29 Ala. 99 ; Criswell v. Criswell.

The later cases make a distinction between an acknowledg-
ment to a third person, not intended to reach the ear of the
creditor, and one where the expectation was that it Avould be
conveyed to him and influence his conduct. In the first in-
stance holding that the bar of the statute was not removed ;
Bloodgood V. Bruen, 4 Sandf. 427; Wakeman v. Sherman, 5
Sandf. 85 ; Kyle v. Wells, 17 Penn. St. 286 ; Gillingham v. Gil-
lingham, 17 Penn. St. 302; Pearson v. Darrington, 32 Ala. 227;
Allen V. Collier, 70 Mo. 138 ; McGrew v. Forsyth, 80 111. 47 ;
Fletcher v. Updike, 67 Barb. 364; Reeves v. Correll, 19 111.
189 ; McKinney v. Snyder, 78 Penn. St. 497 ; but that it was in
the latter ; Winterton v. Winterton, 7 Hun 230 ; Wakeman v.
Sherman, 5 Sel. 85, 92 ; 2 Story Eq. Seel. 1521 ; Collett v.
Frazier, 3 Jon. Eq. 80 ; Jordan v. Hubbard, 26 Ala. 433 ;
Evans v. Carey, 29 Ala. 99 ; Criswell v. Criswell, 59 Pa. St.
130.

It seems to be a question of intention in any case, and the
proper test should be whether the debtor intends to make an
irrevocable engagement to pay the debt to the creditor. This
appearing, it is immaterial to whom the acknowledgment or
promise is made ; Bloodgood v. Bruen, 11 N. Y. 362, 367 ;
Evans v. Carey, 29 Ala. 99 ; Criswell v. Criswell, 59 Pa. St.
130 ; Black v. White, 13 S. C. 37 ; DeForest v. Warner, 98 N. Y.
217.

The weight of authority seems to establish that a promise or
acknowledgment by the maker or acceptor of a promissory note
or bill of exchange, made to one of the parties, will take the
debt out of the statute as to all, though the one to whom it
was made had at the time transferred the instrument ; Dean v.
Hewit, 5 Wend. 257 ; Pinkerton v. Bailey, 8 Wend. 600 ; Bad-

WHITCOMB V. WHITING. 915

ger V. Gilmore, 33 N. H. 361; Way v. Sperry, 6 Cush. 288;
Cripps V. Davis, 12 M. & W. 159.

5. When. — The distinction above alluded to as made in
Maryland, between the office of an acknowledgment made be-
fore the statute has run, and one made afterwards, has been
noticed elsewhere, but the reason given seems to limit it to the
case of co-obligor.

The fact that the statute has run, may, however, be very
material as showing intention. An act that would indicate an
intention to acknowledge a debt before the statute had run,
might not be sufficient to show such intention afterwards ;
Matter of Dunn, 5 Dem. (N. Y.) 124.

6. Form of pleading. — It is Avell settled, in accordance with
the foregoing, that in actions at law the new promise is proper
matter for a replieation, and not for tlie original statement of
the cause of action ; Guy v. Tams, 6 Gill 82 ; Little v. Blunt,
9 Pick. 488 ; :Martin v. Williams, 17 Johns. 380 ; Van Allen v.
Feltz, 32 Barb. 139; Biscoe v. Stone, 6 Eng. 39 ; Tompkins y.
Brown, 1 Dem. 247 ; Watkins v. Stevens, 4 Barb. 168 ; Titus
V. Ash, 24 N. H. 319 ; Shackleford v. Douglass, 31 Miss. 95 ;
Way V. Sperry, 6 Cush. 238.

The reason is often stated to be that the new promise is
only a matter of evidence and does not create a new cause of
action ; Dean v, Hewit, 5 Wend. 257 ; Carshore v. Huyck, 6
Barb. 583.

This, as we have seen, is not strictly correct. The recovery
is on a new cause of action, though, owing to the genei'al form
of j)leading, the declaration does not show it. The mistake
seems to have been in regarding the declaration as on the
original cause of action, whereas from the first it is based on
the one arising at the time of the new promise or acknowledg-
ment, and the reply by way of new assignment makes this clear ;
Keener v. Crull, 19 111. 189: Briscoe v. Anketell, 28 Miss. 361;
Stewart v. Reckless, 4 Zab. 427, 429.

MOSTYN V. FABRIGAS.

MICHAELMAS. — lo GEO. 3, B. R.

[UKPORTEU COWr. Hil.]

Trespass and false imprisonment lies in England hy a native
Minorquin, against a governor of Minorca^ for such injury
committed hy him in 3Iinorca.

Jf the impriso7i')ne)it teas justifiable, the governor must plead his
authority specially (a).

On the 8tli of -luiie, in last term, Mr. Justice G-ould came
personally into court to acknowledge his seal affixed to a bill
of exceptions in this case; and errors having been assigned
thereupon, they Avere now argued.

This was an action of trespass, brought in the Court of Com-
mon Pleas, by Anthony Fabrigas against John jMostyn, for an
assault and false imprisonment : in which the plaintiff declared
that the defendant on the 1st of September, in the year 1771,
with force and arms, «&:c., made an assault upon the said
Anthou}' at Minorca (towit^ at London aforesaid, in the parish
of St. Mary-le-Bou\ in the word of Cheap, and beat, wounded, and
ill-treated him, and then and there imprisoned him, and kept
and detained him in prison there for a long time, (to tvif) for
the space of ten months, without any reasonable or probable
cause, contrary to the laws and customs of this realm, and
against the will of the said Anthony, and compelled him to
depart from Minorca aforesaid, where he was then dwelling and
resident, and carried, and caused to be carried, the said
Anthony from Minorca, aforesaid, to Carthagena, in the domin-
ions of the King of Spain, &c., to the plaintiff's damage of
10,000Z.

The defendant pleaded, 1st, Not guilty ; upon which issue

(a) See Briant v. Clntten, 5 Dowl. Q>C>.
916

MDSTYX V. FABIIIGAS. 917

was joined. 2iidly. A special justification, that the defendant
at that time, &c., and long before, was goveiiior of the said
Ishmd of Minorca, and during all that time was invested with
and did exercise all the powers, privileges, and authorities, civil
and military, belonging to the government of the said Island of
Minorca, in parts beyond the seas ; and the said Anthony,
before the said time when, &c., to ivit, on the said 1st of Sep-
tember, in the year aforesaid, at the Island of Minorca afore-
said, was guilty of a riot, and was endeavouring to raise a
mutiny among the inhabitants of the said island, in breach of
the peace ; whereupon the said John, so being governor of the
said island of Minorca as aforesaid, at the same time, when, &c.,
in order to preserve the peace and government of the said
island, was obliged to and did then and there order the said
Anthony to be banished from the said island of Jlinorca; and,
in order to banish the said Anthony, did then and there gently
lay hands upon the said Anthony, and did then and there seize
and arrest him, and did keep and detain the said Anthony, before
he could be banished from the said island, for a short space of
time, to wit, for the space of six days then next following;
and afterwards, to ivit, on the 7th of September, in the year
aforesaid, at Minorca, aforesaid, did carry and cause to be carried
the said Anthony on board a certain vessel from the island of
Minorca aforesaid to Carthagena aforesaid, as it was lawful for
him to do, for the cause aforesaid ; which are the same making
the said assault upon the said Anthony in the first count of the
said declaration mentioned, and beating and ill-treating him,
and imprisoning him, and keeping and detaining him in prison
for the said space or time, in the said first count of the said
declaration mentioned, and compelling the said Anthony to
depart from Minorca aforesaid, and carrying and causing to be
carried the said Anthony from Minorca to Carthagena, in the
dominions of the King of Spain, whereof the said Anthony has
above complained against him, and this he is ready to verify ;
wherefore he prays judgment, &c., without this, that the said
John was gnilty of the said trespass, assault and imprisonment,
"at the parish of St. Mary-le-Bow, in the ward of Cheap, or else-
where, out of the said island of Minorca aforesaid, Replication
de injuria sud prop)rid absque tali causd. At the trial the jury
gave a verdict for the plaintiff, upon both issues, with 3,000?.
damages, and 90Z. costs.

918 MOSTVN V. FAUKKiAS.

The substance of the evidence, as stated by the l)ill ol" excep-
tions, was as follows : on behalf of tlie plaintiff, that the de-
fendant at the island of Minorca on the 17th of September,
1771, seized the plaintiff, and, without any trial, imprisoned
him for the space of six days against his will, and banished him
for the space of twelve months from the said island of Minorca
to Carthagena in Spain. On behalf of the defendant, that the
plaintiff was a native of Minorca and at the time of seizing,
imprisoning, and banishing him as aforesaid, was an inhabitant
of and residing in the uh-raval of St. Phillip's, in the said
island; that Minorca was ceded to the crown of Great Britain,
by the treaty of Utrecht, in the year 1718. That the Minor-
quins are in general governed by the Spanish laws, but when
it serves their purpose plead the Unglish laws : that there are
certain magistrates, called the Chief Justice Criminal, and the
Chief Justice Civil, in the said island : that the said island is
divided into four districts, exclusive of the Arraval of St Phil-
lip's ; which the witness always understood to be separate and
distinct from the others, and under the immediate order of the
governor ; so that no magistrate of 3Iahon could go there to
exercise any function, without leave tirst had from the governor :
that the Arraval of St. Phillip's is surrf)unded by a line wall
on one side, and on the other by the sea, and is called the
Hot/alt//, where the governor has greater power than anywhere
else in the island ; and where the judges cannot interfere but
by the governor's consent : that nothing can be executed in
the Arraval but by the governor's leave, and the judges have
applied to him, the witness, for the governor's leave to execute
process there. That for the trial of murder, and other great
offences committed within the said Arraval, upon application
to the governor, he generally appoints the assesseur criminel of
Mahon, and for lesser offences, the mustastaph ; and that the
said John Mostyn, at the time of the seizing, imprisoning, and
banishing the said Anthony, was the governor of the said
island of Minorca, by virtue of certain letters patent of his
present Majesty. Being so governor of the said island, he
caused the said Anthony to be seized, imprisoned, and banished,
as aforesaid, without any reasonable or probable cause, or any
other matter alleged in his plea, or any act tending thereto.

This case was argued this term by Mr. Puller, for the plain-
tiff in error, and Mr. Peckham, for the defendant. Afterwards

MOSTYN V. FABKIGAS. 919

in Hilary Term, 1775, by Mr. Serjeant Walke?-, for the plaintiff,
and ]\Ir. Serjeant Glynn^ for the defendant.

For the plaintiff in error. There are two questions, 1st,
Whether in any case an action can be maintained in this
country for an imprisonment committed at 3Iinorca, upon a
native of that place ?

2ndly. Supposing an action will lie against any other person,
whether it can be maintained against the governor acting as
such in the peculiar district of the Arraval of St. Phillip's?

In the discussion of both these questions, the constitution
of the island of Minorca and of the Arraval of St. Phillip's.,
are material. Upon the record it appears, that by the treaty
of Utrecht, the inhabitants had their own property and laws
preserved to them. The record further states that the Arraval
of St. Phillip's, where the present cause of action arose, is sub-
ject to the immediate control and order of the governor only,
and that no judge of the island can execute any function there,
without the particular leave of the governor for that purpose.
1st. If that be so, and the lex loci differs from the law of this
countr}-; the lex loci must decide, and not the law of this coun-
try. The case of Robinson v. Bland, 2 Bur. 1078, does not
interfere with this position ; for the doctrine laid down in that
case is, that where a transaction is entered into between British
subjects with a view to the law of England, the law of the
place can never be the rule which is to govern. But Avhere
an act is done, as in this case, which by the law of England
would be a crime, but in the country where it is committed is
no crime at all, the lex loci cannot but be the rule. It was so
held by Lord Chief Justice Pratt, in the case of Pons v. Johiv-
son, and in a like case of Ballister v. Johnson, sittings after
Trinity Term, 1765.

2nd. In criminal cases, an offence committed in foreign parts
cannot, except by particular statutes, be tried in this country :
1 Vesey, 246. East India Compang v. Campbell. If crimes com-
mitted abroad cannot be tried here, much less ought civil in-
juries, because the latter depend upon the i^olice and constitu-
•tion of the country where they occur, and the same conduct
may be actionable in one country, which is justifiable in
anotlier. But in crimes, as murder, perjury, and many other
offences, the laws of most countries take for their basis the law
of God, and the law of nature ; and, therefore, though the trial

920 MOSTVN V. FAKUKIAS.

be in a diiferent country from that in which the offence was
comniitted, there is a greater prolxibility of distributing equal
justice in such cases than in civil actions. In Keilwey, 202, it
was held that the Court of Chancery cannot entertain a suit
for dower in the Isle of 3Ian, though it is part of the territorial
dominions of the crown of England. 3rd. The cases where the
courts of Westminster have taken cognizance of transactions
arising abroad, seem to be Avholly on contracts, where the laws
of the foreign country have agreed with the laws of England,
and between English subjects ; and even there it is done by a
legal fiction ; namely, by supposing under a videlicet, that the
cause of action did arise within tliis country, and that the place
abroad lay either in London or Islinr/ton. But where it appears
upon the face of the record, that the cause of action did arise
in foreign parts, there it has been held that the court has no
jurisdiction. 2 Lutw. 946. Assault and false imprisonment of
the plaintiff, at Fort St. George, in the East Indies, in parts be-
yond the seas ; viz., at London, in the parish of jSt. Marjj-le-
Bo7V, in the ward of Cheap. It was resolved, by the Avliole
court, that the declaration was ill, l:)ecause the trespass is sup-
posed to be committed at Fort St. George, in parts beyond the
seas, videlicet, in London; which is repugnant and absurd: and
it was said, by the Chief Justice, that if a bond bore date at
Paris, in the Kingdom of France, it is not triable here. In the
present case, it does appear upon the record, that the offence
complained of was committed in parts beyond the seas, and the
defendant has concluded his plea with a traverse, that he was
not guilty in London, in the parish of St. Mary-le-Boiv, or else-
where out of the island of Minorca. Besides it stands ad-
mitted by the plaintiff ; because if he had thought lit to have
denied it, he should have made a new assignment, or have taken
issue on the place. Therefore, as Justice Dodderidge says, in
Latch, 4, the court must take notice, that the cause of action
arose out of their jurisdiction.

Before the statute of Jeofails, even in cases the most transi-
tory, if the cause of action was laid in London, and there was a
local justification, as at Oxford, the cause must have been tried
at Oxford, and not in Loiidon. But the statute of Jeofails does
not extend to Minorca : therefore, this case stands entirely
upon the common law ; by which the trial is bad, and the ver-
dict void.

MOSTVX V. J'ABJllGAS. 921

The inconveniences of entertaining such an action in this
country are many, but none can attend the rejecting it. For it
must be determined by the hiw of this country, or by the law of
the place where the act was done. If by our law, it would be
the highest injustice, by making a man who has regulated his
conduct by one law, amenable to another totally opposite.
If by the law of Minorca^ how is it to be proved? There is no
legal mode of certifying it, no process to compel the attendance
of witnesses, or means to answer them. The consequence
would be to encourage every disaffected or mutinous soldier
to bring actions against his officer, and to put him upon his de-
fence without the power of proving either the law or the facts
of his case.

Second point. If an action would lie against any other per-
son, yet it cannot be maintained against the Governor of Mi-
noi'ca, acting as such, Avithin the Arraval of St. PhiUip^s.

The Governor of Minorca, at least within the district of St.
Phillip" s is absolute : both the civil and criminal jurisdiction
vest in him as the supreme power, and as such he is accountable
to none but God. But supposing he were not absolute : in this
case, the act complained of was done by him in a judicial capac-
ity as criminal judge ; for which no man is answerable. 1
Salk. 396, aroenvelt v. BurweU ; 2 Mod. 218, Show. Pari. Cases,
24, Pntton v. Hoioell., are in point to this position ; but more
particularly the last case, where in trespass, assault, and false
imprisonment, the defendant justified as governor of Barbadoes,
under an order from the council of state in Barbadoes., made by
himself and the council, against the plaintiff (who was the deputy-
governor), for maladministration in his office ; and the House
of Lords determined, that the action would not lie here. All
the grounds and reasons urged in that case, and all the incon-
veniences pointed out against that action, hold strongly in the
present. This is an action brought against the defendant
for what he did as judge ; all the records and evidence, which
relate to the transaction, are in Minorca., and cannot be brought
liere : the laws there are different from what they are in this
country ; and as it is said in the conclusion of that argument,
government must be ver}" weak indeed, and the persons en-
trusted v/ith it very uneasy, if they are subject to be chaiged
with actions here, for what they do in that character in those
countries. Therefore, unless that case can be materiallv distin-

922 MOSTVN V. FABRIGAS.

guished from the present, it will l)e an authority, and the
highest authority that can he adduced, to show that this action
cannot be maintained ; and that the plaintiff in error is entitled
to the judgment of the court.

Mr. Peckham, for the defendant in error. 1st, the objection
to the jurisdiction is now too late ; for wherever a party has
once submitted to the jurisdiction of the court, he is for ever
after precluded from making any objection to it. Year Book,
22 H. 6, fob 7; Co. Litt. 127, b.; T. Raym. 34- 1 Mod. 81; 2
Mod. 273 ; 2 Lord Raym. 884 ; 2 Vern. 483.

Secondly. An action of trespass can be brought in England
for any injury done abroad. It is a transitory action, and may
be brought anywhere. Co. Litt. 282; 12 Co. 114; Co. Litt.
261, b., where Lord Coke says, that an obligation made beyond
seas, at Bordeaux., in France., may be sued here in Unr/land, in
what place the plaintiff will. Captain Parker brought an
action of trespass and false imprisonment against Lord Clive,
for injuries received in India., and it Avas never doubted l)ut
that the action did lie. And at this time there is an action
depending between Gregory Cojimaul, an Armenian mer-
chant, and Governor Verelst, in which the cause of action
arose in Bengal. A bill was filed by the Governor in the
Exchequer for an injunction, which was granted ; but on
appeal to the House of Lords, the injunction was dissolved;
therefore, the Supreme Court of Judicature, by dissolving
the injunction, acknowledged that an action of trespass could
be maintained in England., though the cause of action arose
in India. ^

Thirdly. There is no disability in the plaintiff which inca-
pacitates him from bringing this action. Every person born
within the ligeance of the King, though without the realm, is
a natural-born subject, and as such, is entitled to sue in the
King's courts. Co. Litt. 129. The plaintiff, though born in a
conquered country, is a subject, and within the ligeance of the
King:. 2 Burr. 858.

In 1 Salk. 404, upon a bill to foreclose a mortgage in the
island of Sa^-ke, the defendants pleaded to the jurisdiction, viz.,
that the island was governed by the laws of Normandy., and
that the party ought to sue in the courts of the island, and
appeal. But Lord Keeper Wright overruled the plea ; " other-
wise there might be a failure of justice, if the Chancery could

MOSTYN V. FABRIGAS. 923

not hold plea in such case, the party being here." In this case
both the parties are upon the spot. In the case of Mamkissen-
seat V. Barker^ upon a bill filed against the representatives of
the Governor of Patna, for money due to him as his Banyan ;
the defendant pleaded, that the plaintiff was an alien born, and
an alien infidel, and therefore could have no suit here. But
Lord Ilardivicke said, "as the plaintiff's was a mere personal
demand, it was extremely clear that he might bring a bill in
this court." And he overruled the defendant's plea without
hearing one counsel on either side.

Tlie case of the Countess of Derhjj^ Keilwey, 202, does not
afTect the present question; for that was a claim of dower;
which is a local action, and cannot, as a transitory action, be
tried anywhere. The other cases from Latch and Lutwyche
were either local actions, or questions upon demurrer ; there-
fore, not applicable to the case before the court ; for a party
may avail himself of many things upon a demurrer, which he
cannot by a writ of error. The true distinction is between
transitory and local actions ; the former of which may be tried
anywhere ; the latter cannot ; and this is a transitory action.
But there is one case which more particularly points out the
distinction, which is the case of Mr. Skinner, referred to the
twelve Judges from the council board. In the year 1657,
when trade was open to the East Indies^ he possessed himself
of a house and warehouse, which he filled Avith goods, at Jamhy,
and he i^urchased of the King at Great Jamby the islands of
Baretha. The agents of the East India Company assaulted
his person, seized his warehouse, carried away his goods, and
took and possessed themselves of the islands of Baretha. Upon
this case it was propounded to the Judges, by an order from
the King in council, dated the 12th April, 1G65, " Whether
Mr. Skinner could have a full relief in any ordinary court
of law ? " Their opinion was, " That his Majesty's ordinary
courts of justice at West7ninster can give relief for taking away
and spoiling his ship, goods, and papers, and assaulting and
wounding his person, notwithstanding the same was done be-
yond the seas. But that as to the detaining and possessing of
the house and islands in the case mentioned, he is not reliev-
able in an}' ordinary court of justice." It is manifest from
this case that the twelve Judges held, that an action might be
maintained here for spoiling his goods, and seizing his person,

924 MOSTYN Vo PABRIGAS.

because an action of trespass is a transitory action ; but an
action could ]iot be maintained for possessing- the house and
land, because it is a local action.

Fourth point. It is contended that General Mostyn governs
as all absolute sovereigns do, and that afet pro ratione voluntas
is the only rule of his conduct. From whom does the governor
derive this despotism? Not from the King, for the King has
no such power, and therefore cannot delegate it to another.
Many cases have been cited, and much argument has been ad-
duced, to prove that a man is not responsible in an action for
what he has done as a judge ; and the case of Button v. Hoivell
has been much dwelt upon ; but that case has not the least
resemblance to the present. The ground of that decision was,
that Sir John Dutton was acting with his council in a judicial
capacity, in a matter of public accusation, and agreeable to the
laws of Barhadoes^ and only let the law take its course against
a criminal. But Governor Mostyn neither sat as a military nor
a civil judge ; he heard no accusation, he entered into no proof ;
he did not even see the prisoner ; but in diiect opposition to all
laws, and in violation of the first principles of justice, followed
no rule but liLs own arbitrary will, and went out of his way to
prosecute the innocent. If that be so, he is responsible for the
injury he has done ; and so was the opinion of the court of C. B.
as delivered by Lord Chief Justice Be G-rey, on the motion for
a new trial. If the governor had secured him, said his Lordship,
nay, if he had barely committed him, that he might have been
amenable to justice : and if he had immediately ordered a pros-
ecution upon any part of his conduct, it would have been an-
other question ; but the governor knew he could no more im-
prison him for a twelvemonth (and the banishment for a year is
a continuation of the original imprisonment), than that he could
inflict the torture. Lord Bellamont' s Case, 2 Salk. 625, Pas. 12
W. 3, is a case in point to show that a governor abroad is re-
sponsible here ; and the stat. 12 W. 3, passed the same year, for
making governors abroad amenable here in criminal cases, af-
fords a strong inference that they were already answerable for
civil injuries, or the legislature would at the same time have pro-
vided against that mischief. But there is a late decision not
distinguishable from the case in question : Comyn v. Sahine,
Governor of Gihraltar, Mich. 11 Geo. 2. The declaration
stated, that the plaintiff was a master carpenter of the office of

MOSTYN V. FAHltlGAS. 925

ordnance at Gihralfar ; that Governor Sabine tried him by a
court-martial, to Avhich he was not subject ; that he underwent
a sentence of 500 lashes ; and that he was compelled to depart
from Gibraltar^ which he laid to his damage of 10,000?. The
defendant pleaded not guilty, and justified under the sentence
of the court-martial. There was a verdict for the plaintiff, with
700/. damages. A writ of error was brought, but the judgment
affirmed.

With respect to the Arraval of St. Phillip's being a peculiar
district, under the immediate authority of the governor alone,
the opinion of Lord Chief Justice BeGrey., upon the motion
for a new trial, is a complete answer ; " One of the witnesses
in the cause," said his Lordship, '' represented to the jur}-, that
in some particular cases, especially in criminal matters, the
governor resident upon the island does exercise a legislative
power. It was gross ignorance in that person to imagine such
a thing : I may say it was impossible, that a man who lived upon
the island in the station he had done, should not know better,
than to thinlc tliat the governor had a civil and criminal power
in him. The governor is the King's servant ; his commission
is from him, and he is to execute the power he is invested Avith
under that commission; which is to execute the laws of Mi-
norca., under such regulations as the King shall make in council.
It was a vain imagination in the witnesses to say, that there
were five terminos in the island of Minorca ; I have at various
times seen a multitude of authentic documents and papers rela-
tive to that island; and I do not believe that, in any one of
them, the idea of the Arraval of St. Phillip's being a distinct
jurisdiction was ever started. 3Iahon is one of the four ter-
minos, and St. Phillip's, and all the district about it, is com-
prehended within that termino ; but to supjDOse that there is
a distinct jurisdiction, separate from tlie government of the
island, is ridiculous and absurd." Therefore, as the defendant,
by pleading in chief, and submitting his cause to the decision
of an English jury, is too late in his ol)jection to the jurisdic-
tion of the court ; as no disability incapacitates the plaintiff
from seeking redress here ; and as the action wliich is a transi-
tory one is clearly maintainable in this country, though the
cause of action arose abroad, the judgment ought to be affirmed.
Should it be reversed, I fear the public, with too much truth,
will apply the lines of the Roman satirist, on the drunken

926 MOSTYN V. FABKIGAS.

Maiius, to the present occasion : and they will say of Governor
Mostyn, as was formerly said of him,

Hie est damnatus inani judiclo ;

and to the Minorquins, if Mr. Fabrigas should ])e deprived of
that satisfaction in damages, which the jury gave liim.

At tu victrix provincia ploras.

Lord Mansfield. — Let it stand for another argument. It
has been extremely well argued on both sides.

On Friday, 27th of January, 1775, it was very ablj' argued
by Mr. Serjeant Glynn for the plaintiff, and by Mr. Serjeant
Walker for the defendant.

Lord Mansfield. — This is an action brought by the plaintiff
against the defendant, for an assault and false imprisonment ;
and part of the complaint made being for banishing him from
the island of Minorca to Carthagena in Spain, it was necessary
for the plaintiff, in his declaration, to take notice of the real
place where the cause of action arose : therefore, he has stated
it to be in Minorca ; with a videlicet at London, in the parish
of St. Mar i/-le- Boil', in the ward of Cheap. Had it not been
for that particular requisite, he might have stated it to have
been in the county of Middlesex. To this declaration the
defendant put in two pleas. First, " not guilty " ; secondly,
that he was Governor of 3Iinorca, b}' letters patent from the
croAvn ; that the plaintiff was raising a sedition and mutin}^ ;
and that, in consequence of such sedition and mutiny, he did
imprison him and send him out of the island ; which, as gov-
ernor, being invested with all the privileges, rights, &c., of
governor, ho alleges he had a right to do. To this plea the
plaintiff does not demur, nor does he deny that it would be a
justification in case it were true : but he denies the truth of the
fact: and puts in issue whether the fact of the plea is true.
The plea avers that the assault for which the action was
brought arose in the island of Minorca, out of the realm of
England, and nowhere else. To this the plaintiff has made no
new assignment, and therefore by his replication he admits the
locality of the cause of action.

Thus it stood on the pleadings. At the trial the plaintiff
went into the evidence of his case, and the defendant into evi-

MOSTYN V. FABKIGAS. 927

dence of his ; but on behalf of the defendant, evidence differ-
ent from the facts alleged in his plea of justification was given,
to show that the Arraval of St. Phillip' h^ where the injury com-
plained of was done, was not within either of the four pre-
cincts, but is a district of itself, more immediately under the
2:iower of the governor ; and that no judge of the island can
exercise jurisdiction there, without a special appointment from
him. Upon the facts of the case, the judge left it to the jury,
who found a verdict for the plaintiff, with 3000?. damages.
The defendant has tendered a bill of exceptions, upon which
bill of exceptions the cause comes before us : and the great
dillicidty I have had upon both the arguments, has been to
be able clearly to comprehend what the question is, which is
meant seriously to be brought before the court.

If 1 understand the counsel for Governor Mostyn right, what
they say is this : The plea of not guilty is totally immaterial ;
and so is the plea of justification : because upon the plaintiff's
own showing it appears, 1st, that the cause of action arose in
■Minorca^ out of the realm ; 2ndly, that the defendant was Gov-
ernor of 3Ii7iorca, and by virtue of such his authority impris-
oned the plaintiff. From thence it is argued that the judge
who tried the cause ought to have refused any evidence what-
soever, and have directed the jury to find for the defendant:
and three reasons have been assigned. One, insisted upon in
the former argument, Avas that the plaintiff, being a 3Iinorqnin^
is incapacitated from bringing an action in the King's courts in
England. To dispose of that objection at once, I shall only
say, it is wisely abandoned to-day ; for it is impossible there
ever could exist a doubt, but that a subject born in Minorca
has as good a right to appeal to the King's courts of justice as
one who is born within the sound of Bow bell ; and the objec-
tion made in this case, of its not being stated on the record
that the plaintiff was born since the treaty of Utrecht., makes
no difference. The two other grounds are, 1st, That the de-
fendant being Governor of Minorca., is answerable for no injury
whatsoever done by him in that capacity : 2ndly, That the
injury being done at Minorca, out of the realm, is not cogni-
sable by the King's courts in Enfiland. — As to the first, nothing
is so clear as that to an action of this kind, the defendant, if
he has any justification, must plead it : and there is nothing
more clear, than that if the court has not a general jurisdiction of

928 MOSTYN V. FA15U1GAS.

the subject-matter, he must plead to the jurisdiction, and can-
not take advantage of it upon the general issue. Therefore,
by the law of England, if an action be brought against a judge
of record for an act done by him in his judicial capacity, he
may plead that he did it as judge of record, and that Avill be a
complete justification. So in this case, if the injury complained
of had been done by the defendant as a judge, though it arose
in a foreign country, where the technical distinction of a court
of record does not exist, yet sitting as a judge in a court of
justice, subject to a superior review, he would be witliin the
reason of the rule which the law of England says shall be a
justification; but then it must be pleaded (a). Here no such
matter is pleaded, nor is it even in evidence that he sat as judge
of a court of justice. Therefore I la}^ out of the case every-
thing relative to the Arraval oi St. Phillip'' s.

The first point, then, upon this ground is, the sacredness of
the defendant's person as governor. If it were true that the
law makes him that sacred character, he must plead it, and set
forth his commission as special matter of justification ; because
primd facie the court has jurisdiction. But I will not rest the
answer upon that only. It has been insisted by way of dis-
tinction, that, supposing an action will lie for an injury of this
kind committed by one individual against another, in a country
beyond the seas, but within the dominion of the crown of Eng-
land, yet it shall not emphatically lie against the governor. In
answer to which I say, that for many reasons, if it did not lie
against any other man, it shall most emphatically lie against the
governor.

In every plea to the jurisdiction, 3-ou must state another
jurisdiction ; therefore, if an action is brought here for a matter
arising in Wales, to bar the remedy sought in this court, you must
show the jurisdiction of the court of Wales ; and in every case
to repel the jurisdiction of the King's court, you must show a
more proper and more sufficient jurisdiction : for if there is no
other mode of trial, that alone will give the King's courts a
jurisdiction. Now, in this case no other jurisdiction is shown,
even so much as in argument. And if the King's courts of
justice cannot hold plea in such case, no other court can do it.

(«) See Salk. 30G; Vaugh. 138; 12 513, 514, 535, 550, 784; 4 Taunt. 07;
C. 24 ; Lord Raym. 4(56 ; G T. R. 449 ; 2 C. & P. 14G ; 1 B. & C. 1G3 ; 4 B. &
3 M. & S. 411. See too 1 T. R. 493, C. 292.

MOSTYN V. FABKIGAS. 929

For it is truly said that a governor is in the nature of a vice-
roy ; and therefore locally, during his government, no civil or
criminal action will lie against him: the reason is, because upon
process he would be subject to imprisonment (a). But here
the injury is said to have happened in the Arraval of St. Phil-
lip's, where, without his leave, no jurisdiction can exist. If
that be so, there can be no remedy whatsoever, if it is not in
the King's courts : because, when he is out of the government,
and is returned with his property into this country, there are
not even his effects left in the island to be attached.

Another very strong reason, which was alluded to by Mr.
Serjeant Gli/nn, would alone be decisive ; and it is this : that
though the charge brought against him is for a civil injury, yet
it is likewise of a criminal nature ; because it is in abuse of the
authority delegated to him by the King's letters patent, under
the great seal. Now, if everything committed within a domin-
ion is triable by the courts within that dominion, yet the effect
or tlie extent of the King's letters patent, which gave the au-
thority, can only be tried in the King's courts ; for no question
concerning tlie seignory can be tried within the seignory itself.
Therefore, where a question respecting the seignory arises in
the proi)rietary governments, or between two provinces of
America, or in the Isle of Man, it is cognisal)le by the King's
courts in England only. In the case of the Isle of Man, it was
so decided in the time of Queen Elizabeth, by the chief justice
and many of the judges. So that emphatically the governor
.must be tried in England, to see whether he has exercised the
authority delegated to him by the letters patent, legall}'' and
properly ; or whether he has abused it, in violation of the laws
of England, and the trust so reposed in him.

It does not follow from hence, that, let the cause of action
arise where it may, a man is not entitled to make use of every
justification his case will admit of, which ought to be a defence
to him. If he has acted right according to the authority with
which he is invested, he must lay it before the court by way of
plea, and the court will exercise their judgment whether it is a
sullicient justification or not. In this case, if the justification
had been proved, the court might have considered it as a suiR-
cient answer : and if the nature of the case would have allowed

(a) But see, as to tliis position, tlie note, past, pp. (!83, (j84.

930 MOSTYN V. FAliRIGAS.

of it, might have adjudged, that the raising a mutiny was a
good ground for such a summary proceeding. I can conceive
cases in time of war in which a governor would be justified,
though he acted very arbitrarily, in which he could not be jus-
tified in time of peace. Suppose, during a siege or upon an in-
vasion of Minorca^ the governor should judge it proper to send
a hundred of the inhabitants out of the island, from motives of
real and general expediency; or suppose, upon a general sus-
picion, he should take people up as spies ; upon proper circum-
stances laid before the court, it would be very fit to see whether
he had acted as the governor of a garrison ought, according to
the circumstances of the case. But it is objected, supposing
the defendant to have acted as the Spanish governor was em-
powered to do before, how is it to be known here that by the
laws and constitution of Spain he was authorised so to act?
The way of knowing foreign laws is, by admitting them to be
proved as facts, and the court must assist the jury in ascertain-
ing what the law is. For instance, if there is a French settle-
ment, the construction of which depends upon the custom of
Paris, witnesses must be received to explain what the custom
is ; as evidence is received of customs in respect of trade.
There is a case of the kind I have just stated. So in the su-
preme resort before the King in council, the privy council de-
termines all cases that arise in the plantations, in Gibraltar or
Minorca, in Jersey or Guernsey ; and they inform themselves,
by having the law stated to them. — As to suggestions with
regard to the difficulty of bringing witnesses, the court must
take care that the defendant is not surprised, and that he has a
fair opportunity of bringing his evidence, if it is a case proper
in other respects for the jurisdiction of the court. There may
be some cases arising abroad, which may not be fit to be tried
here ; but that cannot be the case of a governor injuring a man
contrary to the duty of his office, and in violation of the trust
reposed in him by the King's commission.

If he wants the testimony of witnesses whom he cannot com-
pel to attend, the court may do what this court did in the case
of a criminal prosecution of a woman who had received a
pension as an officer's widow : and it was charged in the in-
dictment, that she never was married to him. She alleged a
marriage in Scotland, but that she could not compel her Avit-
ness to come up to give evidence. The court obliged the

MOSTYN V. FABRIGAS. 931

prosecutor to consent that the witnesses might be examined
before any of the judges of the court of session, or any of the
barons of the court of exchequer in Scotland, and that the
depositions so taken shouhl be read at the triaL And they
dechired that they wouhl have put off the trial of the indict-
ment from time to time for ever, unless the prosecutor had so
consented. The witnesses were so examined before the lord
president of the court of session.

It is a matter of course in aid of a trial at law to apply to a
court of equity for a commission and injunction in the mean-
time : and where a real ground is laid, the court will take care
that justice is done to the defendant as well as to the plain-
tiff (a). Therefore, in every light in which I see the subject,
I am of opinion that the action holds emphatically against the
governor, if it did not hold in the case of any other person. If
so, he is accountable in this court or he is accountable nowhere,
for the King in council has no jurisdiction. Complaints made
to the King in council tend to remove the governor, or to take
from him any commission which he holds during the pleasure
of the croAvn. But if he is in England, and holds nothing at
the pleasure of the crown, they have no jurisdiction to make
reparation, by giving damages, or to punish him in any shape
for the injury committed. Tlierefore to lay down in an Eng-
lish court of justice such a monstrous proposition, as that a
governor acting by virtue of letters patent under the great seal
is accountable only to God and his own conscience ; that he is
absolutely despotic, and can spoil, plunder, and affect his
majesty's subjects, both in their liberty and property with im-
punity, is a doctrine that cannot be maintained.

In Lord Bellamont's case, 2 Salk. 625, cited by Mr. Peckham,
a motion was made for a trial at bar, and granted because the
Attorney-General was to defend it on the part of the King ;
which shows plainly that such an action existed. And in Way
V. Yallg, 6 Mod. 195, Justice Poivell says, that an action of

(rt) And now, by st. 1 W. 4, c. 22, Dowl. 35; Bain v. De Vetrie, 3 Dowl.

courts of common law can order the 517; Bridges v. Fisher, 1 Bing. N. C.

examination of witnesses to be taken 512 ; Prince v. Samo, 4 Dowl. 5 ; Bour-

in writing whether they reside in a deaux v. Rowe, I B'ms^.'iii.C. 721; Du-

foreign country, a colony, or in Eng- kett v. Williams, 1 Tyrwh. 502; Wain-

land, but under circumstances which v:ri(jht v. Bland, 3 Dowl. G53. [And

disable them from attending to give see now, since the Judicature Act,

evidence. See Doe v. Pattison, 3 O. 37, r. 5 ct seq.'\

932 MOSTYX V. FATilllGAS.

false imprisonment has been brought here against a governor of
Jamaica, for an imprisonment there, and the hxws of the country
were given in evidence. The governor of Jamaica in that case
never thought that he was not amenable, lie defended him-
self, and possibly sliowed, by the laws of the country, an Act of
the Assembly which justified that imprisonment, and the Court
received it as they ought to do. For whatever is a justification
in the place where the thing is done, ouglit to be a justification
where the case is tried. — I remember, early in my time, being
counsel in an action brought by a carpenter in the train of
artillery against Governor Sabine, who was governor of Gibral-
tar, and who had barely confirmed the sentence of a court-
martial, by which the plaintiff had been tried, and sentenced to
be whipped. The governor was very ably defended, but nobody
ever thought that the action would not lie ; and it being proved
at the trial, that the tradesmen who follow the train are not
liable to martial law, the court Avere of that opinion, and the
jury accordingly found the defendant guilty of the trespass, as
having had a share in the sentence ; and gave 500Z. damages.

The next objection Avhich has been made is a general objec-
tion, with regard to the matter arising abroad ; namely, that as
the cause of action arose abroad, it cannot be tried here in Eng-
layid.

There is a formal and a substantial distinction as to the
locality of trials. I state them as different things : the sub-
stantial distinction is, where the proceeding is in rem, and where
the effect of the judgment cannot be had, if it is laid in a wrong
place. That is the case of all ejectments where possession is to
be delivered by the sheriff of the county ; and as trials in Eng-
land are in particular counties, the officers are county officers ;
therefore the judgment could not have effect, if the action was
not laid in the proper county.

With regard to matters that arise out of the realm, there is a
substantial distinction of locality too ; for there are some cases
that arise out of the realm which ouglit not to be tried any-
where but in the country where they arise ; as in the case
alluded to by Serjeant WaUcer : if two persons fight in France,
and both happening casually to be here, one should bring an
action of assault against the other, it might be a doubt whether
such an action could be maintained here ; because, though it is
not a criminal prosecution, it must be laid to be against the

MOSTYN V. FABRIGAS. 933

peace of the king (f?) ; but the breach of the peace is merely
local, though the trespass against the person is transitory.
Therefore, without giving any opinion, it might perhaps be
triable only where both parties at the time were subjects. So if
an action were brought relative to an estate in a foreign coun-
try, where the question was a matter of title only and not of
(lanuiges, there might be a solid distinction of locality.

But there is likewise a formal distinction, wliich arises from
tlic mode of trial: for trials in England being by jury, and the
kingdom being divided into counties, and each county con-
sidered as a separate district or principality, it is absolutely
necessary that there should be some county where the action is
brought in particvdar, tliat there may be a process to the sheriif
of that county, to bring a jury from thence to try it. This
matter of form goes to all cases that arise abroad: but the
law makes a distinction between transitory actions and local
actions. If the matter which is the cause of a transitory
action arises Avithin the realm, it may l)e laid in any county —
the place is not material ; and if an imprisonment in Middlesex^
it may be laid in Surrey^ and though proved to be done in
Middlesex^ the place not being material, it does not at all pre-
vent the plaintiff recovering damages : the place of transitory
actions is never material, except where by particular Acts of
Pai'liament it is made so ; as in the case of churchwardens
and constables, and other cases which require the action to be
brought in the county. The parties, upon sufficient ground,
have an opportunity of applying to the court in time to change
the venue ; but if they go to trial without it, that is no objec-
tion. So all actions of a transitory nature that arise abroad
may be laid as happening in an EnyJiHli county. But there are
occasions wliich make it absolutely necessary to state in the
declaration, that the cause of action really happened abroad ;
as in the case of specialties, where the date must be set forth.
If tlie declaration states a specialty to have been made at West-

(rt) It seems that, the words contra the vi et armif!, that may now be

|)ffwj/i were not necessary in a dechira- omitted, yet qinvre whether they can

tion of trespass even before the Com- be held to stand on a ditl'erent foot-

mon Law Procednre Amendment Act, inij, see Com. di. Pleader, 3 M. 8, and

18.5-', for the tine to the kinii had been whether the doul)t expressed by Lord

abolished, and thoiij^h in Day v.Mitx- Ma)isiit'hl be well fonuded. see post,

kctt, L. Kaym. !)85, Lord IIdU said in nutis.
that it was not the contra paccm, but

934 MOSTYX V. FABIIIGAS.

minster in Middlesex, and upon producing the deed, it bears
date at Bengal, the action is gone ; because it is such a vari-
ance between the deed and the declaration as makes it appear
to be a different instrument. There is some confusion in the
books upon tiie stat. 6 Rich. 2. But I do not put the objection
upon that statute. I rest it singly upon this ground: if the
true date or description of the bond is not stated, it is at vari-
ance. But the law has in that case invented a fiction ; and has
said the party shall first set out the description trid}-, and then
give a venue only for form, and for the sake of trial by a
videlicet, in the county of 3Iiddlesex, or any other county. But
no judge ever thought that Avhen the declaration said in Fort
St. G-eorge, viz., in Cheapside, that the plaintiff meant it was in
Cheapside. It is a fiction of form ; every country has its forms,
which are invented for the furtherance of justice ; and it is a
certain rule, that a fiction of laio shall never he contradicted so as
to defeat the end for which it was invented, hut for every other pur-
pose it may he contradicted (a). Now the fiction invented in
these cases is barely for the mode of trial ; to every other pur-
pose, therefore, it shall be contradicted, but not for the purpose
of saying the case shall not be tried. So in the case that was
long agitated and finally determined some years ago, u]i)()n a
fiction of the teste of writs taken out in the vacation, which
bear date as of the last day of the term, it was held, that the
fiction shall not be contradicted so as to invalidate the writ, by
averring that it issued on a day in the vacation : because the
fiction was invented for the furtherance of justice and to make
the writ appear right in form. But where the true time of
suing out a latitat is material, as on a plea of 7ion assumpsit
infra sex annos, there it may be shown that the latitat was sued
out after the six j'-ears, notwithstanding the teste. I am sorry
to observe, that some sayings have been alluded to, inaccurately
taken down, and improperly printed, where the court has been
made to say, that as men they have one way of thinking, and
as judges they have another, which is an absurdity ; whereas in
fact they only meant to support the fiction. I will mention a
case or two to show that this is the meaning- of it.

In 6 Mod. 228, the case of Roberts v. Harnage is thus stated :
The plaintiff declared that the defendant became bound to him

(a) Cited by Bramwell, B., A.-Cr. v. Kent, 31 L. J. 396; Holmes v. lieg. 31 L.
J. Cha. 58.

MOSTVN V. FAIUIIGAS. 935

at Fort St. DavicVs in the East Indies at London., in such bond ;
upon demurrer the objection was that the bond appeared to
have been sealed and delivered at Fort St. David's in the JSast
Indies, and therefore the date made it local, and, by conse-
quence, the declaration ought to have been of a bond made at
Fort St. David^s in the Fast Indies, viz., at Islington in the
county of Middlesex ; or in such a ward or parish in London :
and of that opinion was the whole court. This is an inaccu-
rate statement of the case. But in 2 Lord Raym. 1042, it is
more truly reported, and stated as follows : it appeared by the
declaration that the bond was made at London in the ward of
Cheap ; upon oyer, the bond was set out, and it appeared upon
the face of it to be dated at Fort St. G-eorge in the East Indies ;
the defendant pleaded the variance in abatement, and the plain-
tiff demurred, and it was held bad : but the court said that it
would have been good if laid at Fort St. G-eorge in the East
Indies, to irit, at London, in the ward of Cheap. The objection
there was, that they had laid it falsely ; for they had laid the
bond as iiuide at London ; whei'eas, when the bond was pro-
duced, it appeared to be made at another place, which was a vari-
ance. A case was quoted from Latch, and a case from Lutwyche,
on the former argument, but I will mention a case posterior
in point of time, where both those cases were cited, and no
regard at all paid to them ; and that is the case of Parker v.
Crook, 10 Mod. 255. It was an action of covenant upon a deed
indented ; it was objected to the declaration, that the defendant
is said in the declaration to continue at Fort St. G-eorge, in the
East Indies : and upon the oyer of the deed it bore date at Fort
St. George, and therefore the court, as was pretended, had no
jurisdiction : Latch, fol. 4, Lutwyche, 950. Lord Chief Justice
Parker said, that an action will lie in England upon a deed
dated in foreign parts ; or else the party can have no remedy ;
but then in the declaration a place in England, must be alleged
p>ro formd. Generally speaking, the deed upon the oyer of it,
must be consistent witli the declaration : but in these cases,
propter necessitatem, if the inconsistency be as little as possible,
it is not to be regarded; and here the contract being of a voy-
age which was to be perfbrmed from Fort St. George to Great
Britain, does import that Fort St. George is different from
Great Britain; and after taking time to consider of it in Hilary
term, the plaintiff had his judgment, notwithstanding the ob-

93<) MOSTYN v. KAliUIGAS.

jection. Therefore, the whole amounts to this : that where the
action is substantially sucli a one as the court can hold plea of,
as the mode of trial is by jury, and as the jury nuist be called
together by process directed to the sheriff of the county, matter
of form is added to tlie fiction, to say it is in that county, and
then tlie whole of the inquiry is, whether it is an action that
oujTfht to be maintained. But can it be doubted, tliat actions
may be maintained here, not only upon contracts which follow
the persons, but for injuries done by subject to subject ; espe-
cially for injuiics, where the whole that is prayed is a re[)ara-
tion in damages, or satisfaction to be made by process against
the person or his effects, within the jurisdiction of the court?
We know it is within every day's experience. I was embarrassed
a great while to find out whether the counsel for the plaintiff
really meant to make a question of it. In sea batteries the
plaintiff often lays the injury to have been done in Middlenex^
and then proves it to be done a thousand leagues distant on
the other side of the Atlantic. There are cases of offences on
the high seas where it is of necessity to lay in the di'idaration
that it was done upon the high seas; as the takiiig a sliip.
There is a case of that sort occurs to my memory ; the reason
I remember it is, because there was a question about tlie juris-
diction. There likewise was an action of that kind before
Lord Chief Justice Lee, and another before me, in which I
quoted that determination, to show that when the lords com-
missioners of prizes have given judgment, that is conclusive
in the action ; and likewise when they have given judgment, it
is conclusive as to the costs, whether they have given costs or
not. It is necessary in such actions to state in the declaration
that the ship was taken, or seized on the high seas, videlicet, in
Cheapside. But it cannot be seriously contended that the
judge and jury who try the cause fancy the ship is sailing in
Cheapside ; no, the plain sense of it is that, as an action lies in
England for the ship which was taken on the high seas, Cheapside
is named as a venue : which is saying no more than that the party
prays the action may be tried in Londo7i. But if a party were at
liberty to offer reasons of fact contrary to the truth of the case,
there would be no end of the embarrassment. At the last sit-
tings there were two actions brought by Armenian merchants,
for assaults and trespasses in the East Indies, and they are
very strong authorities. Serjeant G-lynn said, that the defend-

MOSTYN V. FABRIGAS. 937

ant, Mr. Verelst, was very ably assisted ; so he was, and by men
Avlio would have taken the objection, if they had thought it
maintainable, and the actions came on to be tried after this
case had been argued once ; yet the counsel did not think it
could be supported. Mr. Verelst would have been glad to
make the objection ; he would not have left it to a jury, if he
could have stopped them short, and said. You shall not try the
actions at all. I have had some actions before me, rather go-
ing further than these transitory actions ; that is, going to
cases which in England would be local actions ; I remember
one, I think it was an action brought against Captain Gamhier,
who, b}- order of Admiral Boscairen, had pulled down the
houses of some suttlers who supplied the navy and sailors with
spirituous liquors ; and whethei' the act was right or wrong, it
was certainly done with a good intention on the part of the
admiral, for the health of the sailors was affected by frequent-
ing them. They were pulled down : the captain was inatten-
ti\'e enough to bring the suttler over in his own ship, who
would never have got to England otherwise; and as soon as he
came here he was advised that he should bring an action
against the captain. He brought his action, and one of the
counts in the declaration was for pulling down the houses.
The objection was taken to the count for pulling down the
houses ; and the case of Skinnei' and the East India Company
was cited in support of the objection. On the other side, they
produced from a manuscript note a case before Lord Chief Jus-
tice Eijre^ where he overruled the objection ; and I overruled
the objection upon this principle, namely, that the reparation
here was personal, and for damages, and that otherwise there
would be a failure of justice ; for it was upon the coast of Nova
Scotia, where there were no regular courts of judicature ; but
if there had been. Captain Gamhier might never go there
again; and therefore the reason of locality in such an action
in England did not hold. I quoted a case of an injury of that
sort in the East Indies, where even in a court of Equity Lord
Hardu'icke had directed satisfaction to be made in damages :
that case before Lord Hardivicke was not much contested, but
this case before me was fully and seriously argued, and a thou-
sand pounds damages given against Captain Gamhier. I do
not quote this for the authority of my opinion, because that
opinion is very likely to be erroneous ; but I quote it for this

9o8 MOSTVN V. TAIUilGAS.

reason — a thousand pounds damages and the costs were a con-
siderable sum. As the captain had acted by the orders of Ad-
miral Boscmven, the representatives of the admiral defended
the cause, and paid the damages and costs recovered. The
case was favourable; for what the admiral did was certainly
well intended ; and yet there was no motion for a new trial.

I recollect another cause that came on before mc : which
was the case of Admiral PaUisicr. There the very gist of the
action was local ; it was for destroying fishing-huts upon the
Labrador coast. After the treaty of Paris^ the Canadians
early in the season erected Inits ff)r fishing; and b}- that means
got an advantage, by beginning earlier, of tlie fishermen who
came from England. It Avas a nice question upon the right of
the Canadians. However, the admiral, from general principles
of policy, ordered these huts to be destroyed. The cause went
on a great way. The defendant would have stopped it short
at once, if he could have made such an objection, but it Avas
not made. There are no local courts among the Esquimaux
Indians upon that part of the Labrador coast ; and therefore
whatever injury had been done there by any of the king's offi-
cers would have been altogether without redress, if the objec-
tion of locality would have held. The consequence of that
circumstance shows, that where the reason fails, even in ac-
tions which in En</Ia)id would be local actions, yet it does not
hold to places beyond the seas AAithin the king's dominions.
Admiral Palliser''s case went off upon a })roposal of a refer-
ence, and ended by an award. But as to transitor}- actions
there is not a colour of doubt, that every action that is transi-
tory may be laid in any county in England, though the matter
arises beyond the seas ; and when it is absolutely necessary to
lay the truth of the case in the declaration, there is a fiction of
law to assist you, and you shall not make use of the truth of
the case against that fiction, but you may make use of it to
every other purpose. I am clearly of opinion not only against
the objections made, but that there does not appear a question
upon which the objections could arise.

The three other judges concurred.

Per Cur. Judgment affirmed.

It is very curious aud instructive to trace tlie progress of the English law,
respecting the locality of actions [though the Judicature Act, 1873, renders

MOSTYN V. FABRIGAS. 939

the subject of small practical importance so far as regards the question of
verute'].

During the earliest ages of our judicial history, juries were selected for
the verj' reasons which would now argue their unfitness, videlicet, their per-
sonal acquaintance with the parties and the merits of the cause ; and few
rules of law were enforced with greater strictness than those which required
that the venue, visne, or vicineUtm, in other words the neighbourhood whence
the juries were to be summoned, should be also that in which the cause of
action had arisen ; in order that the jury who were to determine it principally
from their own private knowledge, and who were liable to be attainted if they
delivered a Avrong verdict, might be persons likely to be acquainted with the
nature of the transaction which they were called upon to try. Peregrina
judicia, says a law of Henry the First, modis omnibus suhmovemus.

In order to eflect this end, the parties litigant were recjuired to state in
their pleadings with the utmost certainty, not merely the county, but the
very irnne, i.e. the very district, liundred or vill, within that county, where
the facts that they alleged had taken place, in order that the sheriff might be
directed to summon the jury from the proper neighbourhood, in case issue
should be taken on any of such allegations. It followed, of course, that
a new venue was designated as often as the allegations of the parties litigant
shifted the scene of the transaction from one part of the country to another.

This was, however, soon found to produce great inconv'eniences ; for in
mixetl transactions, which may happen partly in one place, and partl}'^ in
another, it was exti'emely difficult to ascertain the right venue; and as the
number of these transactions increased with increasing civilisation, these
difficulties about determining the place of trial became of constant occur-
rence, and soon induced the courts, in order to relieve themselves, to take
a distinction between transitory matters, such as a contract which might
happen anywhere, and local ones, such as a trespass to the realty, which
could only happen in one particular place ; aud thej' established as a rule,
that in transitory matters the plaintiff should liaA'e a right to lay the venue
where he pleased, and the defendant should be bound to follow it, iinless
indeed his defence consisted of some matter in its natural local, aud which
must therefore, ex necessitate rei, be alleged to have taken place where it
really happened.

However, this distinction Avas soon abused bj' litigious plaintiffs, who, by
laying the venue in a county distant from the defendant's residence, obliged
him to come thither with his witnesses ,■ Gilb. C. P. 89 ; and this occasioned a
return to the ancient strictness with regard to venues expressed in the above
law of Henry the First. Accordingly hj stat. G, Richard 2, cap. 2, it was
enacted that, " to the intent that wiits of debt, and account, and all other
such actions be from henceforth taken in their counties, and directed to the
sherifJ's of the counties where the contracts of the same actions did arise, that
if, from henceforth, in pleas upon the same Avrits it shall be declared that
the contract thereof was in another county than is contained in the original
writ, that then the said writ shall be utterly abated : " and, as the words of
this statute were found not quite sufficient to effect the object, statute 4
Heurj' the Fourth, c. 18, directed that attorneys should be sworn " that they
would make no suit in a foreign county."

After these statutes the judges adopted various means of enforcing their
provisions. At first they examined the plaintiff on oath, as to the truth of
the venue ; afterwards they allowed the defendant to traverse it and try it

940 MOSTYN V. FABKIGAS.

in an issue, Rastell, Doht. 184, b, Fitz. Abr. BrirfS, and still later tiiey made
a rule of court, renderina; it highly penal on attorneys to transgress the act
of Hen. 4; R. M. 1654, pi. 5, K. B. ; M. 1G54, pi. S, C. P. ; but linding that the
mode of traversing tlie vetiue produceil great delay, tliey at last adopted tlie
mode of changing it on motion, which [continued in use until the Judicature
Act, 1873, which will be referred to below, came into force].

But all these alterations in the law applied, it must be borne in mind, only
to transUortj matters, for where a matter alleged in pleading was of a lornl
description, whether the allegation happened in a declaration or in any
subsequent pleading, the venue for the trial of such matter could be nowhere
but at the very place whex-e it was alleged in pleading to have happened,
and therefore, as is observed in the text, " even in cases the most transitory,
if the cause of action was laid in London, and thei'e was a local justification
as at Oxford, the cause must have been tried in Oxford, not in London."
Ace. Ford v. Brooke, Cro. Eliz. 2G1 ; Bowyefs Case, Moore, 410.

And it was probably this strictness of the law witli regard to venue which
rendered it necessary to confine the defendant so long to a single plea, since
had he pleaded several pleas on which issues had been taken triable by dif-
ferent venues there could have been no single trial of the action; and accord-
ingly we find that it was not till after tlie eftect of the statute of Charles the
Second on venues had become well settled, that the very same year which put
an end to the last remnant of the old severity, by abolishing the necessity
of summoning hundreders, also endowed the defendant with a right which
he ought in justice always to have possessed, of stating everything in his
defence which can by law be made available to exonerate him ; the right
corresponding to which, that, namely, of replying to the defence everything
which has a direct tendency to rebut it, was, even in our more advanced times,
denied the plaintiff, until the passing of the Common Law Procedure Amend-
ment Act, 1852, s. 81.

But to return to the progress of the law of venue, stat. 16 & 17 Car. 2, c. 8
(one of the statutes of Jeofails), enacted, " that after judgment no verdict
shall be arrested or reversed, for that there is no right venue, so as the cause
of action Avere tried by a jury of the proper county or place ichere the action
was laid."

Considerable difticulty arose on the construction of this statute, many law-
yers contending that the Avords " the proper county or place where the action
is laid " must be understood to mean the proper county or place where the
issue arises, so that if the issue arose at Dale in Oxfordshire, and the ^^enue
was Sale in the same county, here they said was a case within the statute,
there being a right county but a wrong venue. However, it was at length
decided, in Craft v. Boite, 1 Saund. 246, b, contrary to the opinion of Twys-
den, J., and was settled by many subsequent cases, that the words " ivJiere the
action was laid" mean, where it was laid in the declaration, not in any subse-
quent pleading. And accordingly it [was ever afterwards held] sufticient if
the jury [were] summoned from the venue laid in the declaration.

This vemie indeed was at that time the rill or hundred where the cause of
action was stated in the declaration to have arisen ; and anciently the jury, in
order that they might be persons well acquainted with the controversy, were
summoned out of the very hundred designated for the venue. Afterwards the
rule was relaxed, and in the reign of Edward the Third, it was sufficient if
the jury contained six hundreders. Gilb. C. P. c. 8. This number was in
Henry the Sixth's reign reduced to four; Portescue de Laud. c. 25; it was

MOSTYX V. FABRIGAS. 941

afterwards, by stat. 35 Hen. 8, c. G, restored to siy- ; stat. 27 Eliz. c. 6,
reduced it to two ; and so the law remained till long after the stat. 16 & 17
Car. 2, c. 8, after which act it was still neces.sary that tv:o at least of the
jurors should be summoned from the humlred laid in the declaration; and if
there were not so many, it was cause of challenge. But this last remnant of
the ancient strictness was abolished by 4 & 5 Anne, c. G, except so far as con-
cerned actions founded upon penal statutes, to which the abolition was ex-
tended by 24 G. 2, c. 18. So that [thenceforth it was] in all cases sufficient
if the jury [were] summoned de corpora comitatus, i.e., from the body of the
conntij in which the ve7ine [was] laid by the declaration.

It has been already mentioned that in ti'ausitory actions the judges adopted
various modes of enforcing tlie policy of the statute of Richard the Second,
aud oljliging the plaintiff to lay his venue where the transaction in dispute had
really occurred. At last they had recourse to a practice, which seems to have
been first introduced in the reign of James the First, pe?- Holt, C. J., 2 Salk.
670; (the first case in the books is Lord Gerrard v. Flo>/d, 1 Sid. 185, E.. IG
Car. 2,) founded upon the equity of that enactment, by which they held them-
selves authorised, upon affidavit made that the cause of action, if any, arose
in the county of A., and not in the county of B., in which the vetute was laid,
or elsewhere out of the county of A., to change the venue to the county of
A., and the motion for so doing was of course, only requiring counsel's
signature. R. H. 2 W. 4, pi. 103. But as it would be hard to conclude the
plaintiff on the single affidavit of the defendant, it was further held, that the
venue must be brought back, if the plaintiff undertook to give material evi-
dence in the county in which the action was brought, failing which he must
have been non-suited, Avhich was equivalent to an abatement of the writ,
according to the statute, Gilb. C. P. 90; Snntler v. Heard, 2 Bl. 1032, 1033;
Burckshav: v. Hopkins, Cowp. 410; Watkins v. Toioers, 2 T. R. 275.

There were many cases of transitory actions in which the defendant could
not by possibility make the above [common] affidavit, [but could procui'e a
change of venue on a special affidavit in the interests of justice. See Tidd's
Prac. G05].

By the rules of Hilary Term, 1853, all former written rules of practice
[were] abolished, and the only rule substituted relating to venue [was] the
18th which [was] that "No venue can l)e changed Avithout a special order of
the court or judge unless by consent of the parties."

[By 3 & 4 W. 4, c. 42, s. 23, power Avas given to the court or a judge to
alter the venue in certain cases, even in local, as distinguished from transitory
actions, and this power was further enlarged by the C. L. P. Act, 1852,
§§41,182.

As to the right of the Crown in transitory but not in local actions, to lay
and retain the venue where it pleases, see Attorney-General v. Lord Churchill,
8 M. & W. 171 ; and as to similar rights in the Attorney-General for the
Prince of "Wales, see Attorney-General to the Prince of Wales v. Grossman,
L. R. 1 Exch. 381, and the cases therein cited. As to the right of the Crown
under 28 & 29 Vict. c. 104, s. 46, to change the venue in certain cases as of
right, see Dixon v. Farrar, 18 Q. B. D. 43.

An attorney suing in person had, before the Judicature Act, 1873, the
privilege to lay and retain the venue in Middlesex, and the court had no power
to change it. Grace v. Wilmer, 26 L. J. Q. B. 1.

The law on this subject is now contained in the Judicature Acts, 1873 (36
& 37 Vict. c. 66), and 1875 (38 & 39 Vict. c. 77), and the rules made in pnrsu-

942 MOSTYN V. FABllIGAS.

ance of tliose acts. By Order 3G, Rule 1, it is provided as follows: "1.
There shall be no local i^emia for the trial of any action, except where other-
wise provided by statute. Every action iu eveiy division shall, uidoss the
court or a judge otherwise orders, be trieil in the county or place named on
the statement of claim, or (where no statement of claim has l)een delivered
or required) l)j' a notice in writing to be served on the defendant, or his
solicitor, within six days after appearance. Where no i)laceof trial is named,
the place of trial .shall, unless the court or a judge shall otherwise order, l)e
the county of Middlesex." See as to this rule, Locke v. White, 33 Ch. 1). 308.

Qucere whether, notwithstanding the qualification " except where otherwise
provided by statute," introduced above since the Rules of 1875, the effect of
s. 33 of the Judicature Act, 1875, Order 3G, Rule 1, above stated, and s. G of
the Statute Law Revision and Civil Procedure Act, 1883, may not be to repeal
all statutory provisions for local venues.

By rule 1a. of the same order, it is provided that the provisions of Rule 1
shall apply to every action, notwithstanding that it may liave been assigned
to any judge.

In deciding upon applications to change the place of trial, the courts will,
no douljt, be governed to a great extent by the same principles as governed
the practice previously to the Judicature Act, on motions to change the venue.
In Church v. Barnett, L. R. 6 C. P. IIG, Willes, J., stated the true rule to be
that a plaintiff' had the right to lay his }-emie whei'e he thought proper. If
he did so capriciously a judge would cliange the venue to the place where the
cause of action arose. Hut where he had not exercised a capricious choice,
the defendant who sought to deprive him of an undoubted right nnist show
that thei'e would be a practical preponderance of convenience in trying the
cause in the place where the cause of action arose. The same doctrine as to
the preponderance of convenience was laid down in Helliwell v. Ilohson, 3 C.
B. N. S. 761 ; Durie v. IIopiooocl, 7 C. B. N. S. 835, the places where the con-
tract was made and where the breach took place being also elements for con-
sideration. Levy V. Rice, L. R. 5 C. P. 119. The court would not in general
interfere with an order to change the venue made by a judge at chambers,
unless he acted on a misconception of the facts, Schuster v. W'Tieelright, 8 C.

B. N. S. 383; see Jackson v. Kidd, 29 L. J. C. P. 221 ; Church v. Barnett; Levy
V. Rice, nhi sup., and Schroder v. Myers, 34 W. R. 261, decided in the C. A.
since the Judicature Acts.

In Creni v. Bennett, 54 L. J. Ch. 85, and Powell v. Cobb, 29 Ch. D. 486, 54
L. J. Ch. 962, which were actions in the Chancery Division since the Judica-
ture Acts, the question was treated as one for the discretion of the judge to
whom the actions were assigned as to the preponderance of convenience.
But where Bacon, V.-C, made an order changing the place of trial to Lon-
don, on the ground merely that the action was brought in the* Chancery
Division, the C. A. set aside the order. Philips v. Beale, 26 Ch. D. 621; 54
L. J. Ch. 80. In Powell v. Cobb (siip.), Pearson, J., seems to intimate that
the place of trial cannot be changed on the application of the plaintiff'. The

C. A. express no opinion on this point.

To turn now from the technical rules respecting the venue or place of trial
to more substantial doctrines with regard to causes of action arising abroad.

" Our courts are said to be more open to admit actions founded upon for-
eign transactions than those of any other European country ; but there are
restrictions in respect of locality which exclude some foreign causes of
action altogether, namely, those which would be local if they arose in Eng-

MOSTYX V. FABRIGAS. 943

land, such as trespass to land; and even with respect to thoso not falling
within tliat description, our courts do not undertalve universal jurisdiction."
FJiillips V. Eyre, pir Willcs, ,T., J.. W. G ^l B. 1, 28; Donlson v. Matthews, 4 T.
R. 503.

To some extent, no doubt, the difllculty as to local actions, sncli as trespass
to lands abroad, being tried in our courts, arose merely from technical rules
as to the necessity in such cases for a local venue as distinguished from any
inherent want of jurisdiction in our courts to try them. (See the judgment
in the principal case.) And it may be a question how far the effect of the
Judicature Act, 1873, abolishing every local venue, is not to get rid of this
disal)ility, especiallj' where the parties are domiciled in England; see per
Lord Cairns, C, WhUaker v. Forbes, 1 C P. D. 51.

But tliere are broader grounds on which our courts decline jurisdiction,
sometimes altogether, sometimes perhaps when the parties are aliens, and
there is, therefore, no jurisdiction founded upon the lex domicilii.

Tluis our courts Avould refuse to entertain any proceedings wliere the prop-
erty is real and situate abroad, such as ejectment (see the observations of
Lord Mansfield in the judgment in the principal case, Graham v. Massey, 23
Ch. D. 743) or a bill for partition, Carteret v. Petty, 2 Swab. 323 n., and this,
whether the parties be aliens or domiciled in England.

And thougli in some cases the Courts of Equity have entertained suits
affecting lands beyond the jurisdiction (as by decreeing specific performance
of articles concerning boundaries of provinces in America, Penn v. Lord
JJaUiiJiore, 1 Ves. 444, 2 Tudor's L. C. in Eq. 923; or bj' a foreclosure decree
of a mortgage of land situate abroad, Toller v. Carteret, 2 Vern. 494; Paget
V. Ede, L. R. 18 Eq. 118), this exceptional jurisdiction is exercised only by
reason of the authority of the court in personam, and, as it seems, where
there is privity between the parties arising by reason of a contract made
within the jurisdiction, Norn's v. Chambers, 29 Beav. 246, affirmed 3 D. F. &
J. 583; Cockney v. Anderson, 31 Beav. 452, 1 D. J. & S. 365; Norton v. Flor-
ence Land Co., 7 Ch. D. 332; see also Re Llolmes, 2 J. & H. 527; Blake v.
Blake, 18 W. R. 944; PLeiner v. Marquis of Salisbury, 2 Ch. D. 378, 45 L. J.
Ch. 250, in which last case Malins, V.-C, refused to entertain a bill for dis-
covery in aid of proposed proceedings to recover land in India.

On the other hand, speaking generally, (and subject to the distinction be-
fore mentioned in respect of local actions,) where the action is in i^ersonam,
whether in respect of a contract or of a tort, our courts will, it is appre-
hended, entertain it, though it may have arisen abroad, and though the
parties to it may be aliens, provided that service of process is effected
according to their rules. See Story's Confiict of Laws, 542-543 ; Wharton's
Conflict of Laws, 2nd ed. 743; Phillimore Priv. Int. Law, 701; Buenos Ayres
Railvny Co. v. Northern Railway Co. of Buenos Ayres, 2 Q. B. D. 210, 46 L.
J. Q. B. 224.

As regards contractual obligations, however, a distinction has been taken,
that where the contract is made abroad, and its subject-matter Is abroad, an
English court will not entertain a cause of action in respect of it, if the
parties be aliens, though it would do so if thej' were domiciled here. See
Matthei v. Galitzin, L. R. 18 Eq. 340, and the judgment of the Master of the
Rolls in Cookney v. Anderson, 31 Beav. 466, which judgment was aflSrmed, 1
D. J. & S. 365. Quoire, whether the dicta in the last cited cases are not too
wide. In Doss v. Secretary of State for India, L. R. 19 Eq. 535, Maliu'*. V.-C,
approves of and follows Matthei v. Galitzin.

944 MOSTYX V. FABKIGAS.

In Hart v. ITerwirj, L. R. 8 Ch. 860; 42 L. J. Ch. 457, tlie plaintifl', an Kng-
lishnian, made at Hamburg an agreement with the defendant Ik-rwig, domi-
ciled at Hamburg, for tlie sale by Hervvig, to the plaintitl', of a Hamburg ship
then on voyage, to be delivered to the plaintiff at any plate whither she
might be ordered for discharge, the seller making allowance if she arrived in
a damaged state. The ship was ordered to Sunderland to discharge, but on
arrival, delivery was refused except on payment of the full price. The
Lords Justices affirmed an order of Malins, V.-C, restraining the removal of
the ship by the defendant Herwig, and the master, who was also made a
defendant. Sir Wm. James, L. J., said " The substantial <|uestion is, whether
this Court has power to prevent a specific chattel from being removed out of
the jurisdiction until a question relating to that chattel is decided. I am of
opinion that, according to the established law of nations, if this suit were a
suit for damages only, or one which could ix'sult in damages only, then the
plaintiff must, in order to enforce his claim for damages, go and seek the
forum of the defendant. But where the contract, as in this case, though
made abroad, is to deliver a thing in specie in this country, and the thing
itself is brought here, then the court here, in the exercise of its discretion,
will see that the thing to be delivered in this country does not leave this
country, so as to defeat the right of the plaintitt" to have it so delivered."

It is presumed that Lord Justice James in saying that, if the suit was a
suit for damages only, then the plaintiff must seek tiie forum of the defend-
ant, is speaking of a case in which there had been no service of process
within the jurisdiction, and that the necessity would arise from this, and not
from any inherent lack of jurisdiction in our courts to try such a case, if ser-
vice of process had been effected. See the judgment of Lord Justice Mellish.
As to service of process, see post, p. (!<!!,).

But as in the case of torts, so also in the case of contracts, our courts will
not enforce contracts illegal, according to English, though legal accoi-ding to
the law of the place where they are made: Santos v. IlUdfje, G C. B. N. S.
841, which decision was reversed in error, 8 Id. 801, but on the ground that
the contract sought to l)e enforced was not prohibited by English law. See
also Grell v. Lcnj, IG C. B. N. S. 73; Hope v. Hope, 20 L. 1). Ch. 417.]

As regards torts, there seems to be no reason why aliens should not sue in
England for personal injuries done them l)y other aliens abroad when such
injuries are actionable both by the laAV of England and also by that of the
country where they are committed, and the impression which had prevailed
to the contrary (see ante, p. 650), seems to be erroneous. [See " The
Halley," L. R. 2 P. C. 193, 37 L. J. Adm. 33.

But to found a cause of action between aliens, or between aliens and
British subjects, or between British subjects in an English court for a wrong
committed abroad, both these conditions must be fulfilled. See the judgment
in Phillips v. Eyre, L. R. 6 Q. B. 1, 40 L. J. Q. B. 28, and " The Maria Mox-
ham " in C. A., 1 P. D. 107, 45 L. J. Prob. 3G, and per Lord Esher, M. R.,
Chartered Mercantile Bank of India v. Xetherlands India Steam Navigation
Company, 10 Q. B. D. at p. 536 (who, however, holds that " for a tort com-
mitted on the high sras between two foreign ships an action can be maintained
in this country although it is not a tort according to the laws of the courts
in the foreign country to which the ships belong"). Thus in the case of
" The Halley," sitp., the Judicial Committee of the Privy Council reversing
the decision of the Court of Admiralty pronounced against a suit in the
Admiralty founded upon a liability by the law of Belgium for collision

MOSTYIST V. FABRIGAS. 945

caused by the act of a pilot, whom the shipowner was compelled by that law
to employ, and for the act of whom therefore, as not being his agent, he was
not responsible by English law.

And conversely, in P/ii7?;)).s v. Eyre, sup., the Court of Exchequer Chamber
upheld the decision of the Queen's Bench that no action could be maintained
in an English Court in respect of an assault and imprisonment which had
been rendered lawful in Jamaica, where the alleged acts took place, by an
Act of Indemnity. That historical case is a remarkable exemplification of
the doctrine of English law now under discussion; because it is thereby
solemnly decided in the words of Cockburn, C. J., that " the principle that
an act authorised by the law of the country in which it takes place, cannot be
the subject of a legal proceeding here, is equally applicable to an act origi-
nally wrongful but legalised by an ex post facto law " of the foreign country.

It was an action brought by an inhabitant of Jamaica against the defendant,
who had been governor of that island, for an assault and false imprisonment;
and the acts complained of took place during the rebellion in that island in
the year ISfiS. The defendant pleaded an Act of Indemnity passed by the
Jamaica Legislature, to which plea the plaintitf demurred. On the argument a
number of ol)jections were urged against the plea, and inter alia, that such
an act could not take away the plaintiff's right of action in this country.

The Court of Queen's Bench, and, on appeal, that of Exchequer Chamber,
unanimously decided in favour of the defendant. In delivering the judgment
of the latter court, Willes, J., says (p. 28 of L. R.) : "A right of action,
whether it arise from contract governed by the law of the place or wrong, is
equallj^ the creature of the law of the place, and subordinate thereto. The
terms of the contract or the character of the subject-matter may show that
the parties intended their bargain to be governed by some other law ; but
prima facie it falls under the law of the place where it was made. And in
like manner the civil liability arising out of a wrong derives its birth from
the law of the place, and its character is determined by that law. Therefore
an act committed abroad, if valid and unquestionable by the law of the place,
cannot, so far as civil liability is concerned, be drawn in question elsewhere,
unless by force of some distinct exceptional legislation, superadding a lia-
bility other than and besides that incident to the act itself. In this respect no
sound distinction can be suggested between the civil liability in respect of a
contract governed by the law of the place and a wrong. . . . "Where an
obligation ex delicto to pay damages is discharged and avoided by the law
of the country where it was made, the accessory right of action is in like
manner discharged and avoided."

As to ex post facto legislation, see also Ronqitette v. Orermann, L. K. 10 Q.
B. 536; 44 L. J. Q. B. 221.

Again, in " The Maria Moxham," 1 V. D. 107, 45 L. J. Pi'ob. 36, which was a
cause of damage instituted by an English company against the owners of an
English ship to a pier belonging to the company, but situate in a Spanish
port, the Court of Appeal, overruling the decision of Sir R. Phillimore, upheld
an alleged defence that if the collision was caused by negligence, it was neg-
ligence of the master and mariners of the ship, and that by the law of Spain
the owners Avere not in such a case liable. In this case any objection to the
jurisdiction of the English court was waived. See also Scott v. Seymour, 1
H. & C. 219; The Suhmarine Telegraph Co. v. Dickson, 15 C. B. N. S. 759;
33 L. J. C. r. 139; Hart v. Gumpach, L. R. 4 P. C. 439; 42 L. J. P. C. 25.
The Mali Ivo, L. R. 2 A. & E. 35G ; 38 L. J. Adm. 34.

946 MOSTYN V. FAIUMGAS.

The foregoing remarks as to the capacity of the English courts to take
cognisance of actions against foreigners must be taken, subject to the quali-
fication, that to give an English court jurisdiction in personal actions there
must be service of its process within the jurisdiction, or in certain cases
service or notice in lieu thereof without the jurisdiction, as provided for
under the .Judicature Acts by the rules in Order XI. This is of course a
technical (luestion, totally distinct from the broader one discussed in these
notes, as to tlie capacity of English courts to take cognisance of foreign
causes of action.

As to the jurisdiction of our courts over a chattel when brought to tliis
country, see Hart v. Herwig, L. 11. 8 Cli. 8G0, 42 L. J. Ch. 457.

A special jurisdiction has sometimes been exercised by the Admiralty
Division over foreign ships at the request of the representative of the state
to whose subjects such ships belong. See " The Agincoiirl," 2 V. 1). 239,
" The Evangelistria," Id. 241, 46 L. J. P. 1). & A. 1.

As to the limits of the Crown's jurisdiction not extending beyond low water
mark, see Reg. v. Keyn, 2 Ex. 1). 63; 46 L. J. M. C. 17; Harris v. Owners of
" Franconia," 2 C. P. D. 173; 46 L. J. C. P. 363, and 41 & 42 Vict. c. 73.

As to when a foreigner can be made a bankrupt in England, see ex parte
Crispin, L. R. 8 Ch. 374 ; 42 L. J. Bank. 65.

As to when bankruptcy proceedings can be served on a foreigner, see ex
parte Pascal, 1 Ch. D. 509; Ex parte Blain, 12 Ch. D. 522. All these three
cases were decided under the Bankruptcy Act, 1869.]

Locus regit actum is a canon of general jurisprudence, and must he assumed
in the absence of contrary evidence to hold good in every system of law.
(lUepratte v. Young, 4 De G. & S. 217.

[For recent applications of this maxim see Cammell v. Sexoell, 5 II. & N.
728, where a sale in Norway of goods there, abandoned to English under-
writers, was upheld as valid by Norwegian though invalid by English law;
Munroe v. PiJkington, 2 B. & S. 11; Dent v. Smith, L. 11. 4 Q. B. 414; Messina
V. Petrocochino, L. 11. 4 P. C. 144; Castrique v. Imrie, L. R. 4 H. L. 414; 39
L. J. C. P. 350; Godard v. Gray, L. R. 6 Q. B. 139; 40 L. J. Q. B. 62, cases in
which foreign judgments have been enforced, though the cases would have
been decided otherwise according to English law. In Simpson v. Fogo, 1 H.
& M. 195; 32 L. J. Ch. 249, Wood, V.-C, declined to enforce a decree of a
court of Louisiana, acting in defiance of British law and the comity of
nations. Compare with this case Liverpool Marine Credit Co. v. Hunter, L. R.
3 Ch. 479.

In a contract by charter-party the law of the flag as a general rule prevails,
Lloyd v. Guihert, L. R. 1 Q. B. 115 ; and the same law governs the right of a
shipmaster to bottomry his cargo, " The Gaetano and Maria," 7 P. D. 137;
but this is only prima facie, and the whole circumstances must be looked at
to see what was the intention of the parties. Chartered Mercantile Bank of
India v. Netherlands Steam Navigation Co., 10 Q. B. D. 521, and see Moore v.
Harris, 1 App. Cas. 331. On the question whether our courts recognise a
"general maritime law," distinct from the law of this country, see Llogd v.
Guihert, sup., " The Patria," L. R. 3 A. & E. 436 ; " The Gaetano and Maria," uhi
sup. ; " The Leon," 6 P. D. 148.]

With respect to transitory causes of action which have accrued abroad,
like that in the principal case of Mostyn v. Fahrigas, it must be remarked
that although the courts of this country will entertain them, still they will, in
adjudicating on tliem, be governed by the laws of the country in wliich they

MOSTVN V, FABRIGAS. 947

arose [or in the case of contracts, by the law with reference to which the
parties ma)' l?e presumed to have contracted, Lloyd v. Guibert, 35 L. J. Q. B.
74; 6 B. & S. 100; Smith v. WegueUn, L. R. 8 Eq. 198; ex parte Holthausen,
L. R. 9 Ch. 722, per Mellish, L. J. ; Cohen v. S. E. R. 2 Ex. D. 253, 46 L. J. Ex.
417; De Greuchy v. Wills, 4 C. P. D. 362; Adams v. Clutterbuck, 10 Q. B. D.
403; 52 L. J. Q. B. 609; Chartered Merc. Bank v. XclherhDids Steam Naviga-
tion Co., iihisup. On the hitter i)oint the broad rule is tliat tlie la^v of a coun-
try where a contract is made presumably "overns the nature of the oblisiatiou
and the interpretation of it unless the contrary appears to be the express
intention of the parties, per Lord Esher, M. R., Jacobs v. Credit Lyonuais, 12
Q. B. D., at p. 600; Chamberlain v. Napier, 15 Ch. D. 614, in which case, Hall,
V.-C, held that such an intention did appear]. The distinction laid down in
all cases of this description is between the cause of action, which is to be
judged of with reference to the law of the country where it originated, and
the mode of procedure which must be adopted as it happens to exist in the
country where the action is brought.

[This distinction is illustrated by the decisions which have been given in
our courts as to the liabilities and rights of parties to and holders of bills
of exchange drawn, accepted, and indorsed in difterent countries, and by the
enactment in the Bills of Exchange Act, 1882, s. 72 (set forth p>ost, p. 676),
which presumablj' was intended to embody the effect of those decisions.]

Thus in Trimbey v. Viynier, 1 Bing. N. C. 151. it was held [on the assump-
tion] that by the law of France, an indorsement in blank does not transfer
any propert)' in a bill of exchange [or promissory note that] the holder of a
[note made] in France and there indorsed in blank cannot reco\er upon it in
this country against the [maker.

And although in BradlaiKjh v. De Rin, L. R. 5 C. P. 473, (I)etter reported
39 L. J. C. P. 254,) the Court of Exchequer Chamber declined to toUow
Trimbey v. Vignier, it was on the express ground that in the latter case the
court had mistaken the Erench law^ and that according to French law a blank
indorsement acted as a procuration, that is to say, did convey a right to sue,
though subject to the equities affecting the indorser in blank.

On the other hand, in Lebel v. Tucker, L. R. 3 Q. B. 77, it was held that in
the case of a bill of exchange drawn, accepted, and payable in England, the
acceptor was liable to a holder after indorsement in Ei'ance under similar
circumstances to those in Trimbey v. Vignier : though the court assumed the
French law to be as stated in Trimbey v. Vignier, distinguishing the case on
the ground that the contract of the English acceptor of an English bill must
be governed by English law. They at the same time declined to express any
opinion as to what would be the effect of such an indorsement as between
the indorser and any subsequent indorsee in an action against the indorser
himself.

The case of Bvadlaugh v. De Rin {sup.) was intermediate between Trimbey
V. Vignier and Lehel v. Tucker. In the report of the case in tlie Common
Pleas it is stated both in the report and in the judgment, that the bills sued
upon were drawn in France: see L. R. 3 C. P. 538. In the report in the
Exchequer Chamber {sup.) it is stated that they were drawn in Belgium; but
in that court, as in the court below, it appears to have been assumed that the
bills were in their inception French bills. Th.ey were accepted in England,
but afterwards indorsed in France in blank, and it was assumed in the Court
of Common Pleas that by French law such an indorsement was insufficient
to give the holder — the plaintiff — a title to sue the acceptor — the defend-

948 MOSTVN V. lAlJKKJAS.

ant. The majority of tlie Court of Coimiioii I'Uas. (-onsi>tin<; of Hovill,
C. J., and Willcs, J., Ir-UI that uiidrr siuli circiimstancfs, tin- hills hi-iiifj
French bills in their inception, the obligations of the acceptor nlu^)t be deter-
mined by French law. Montafiue Smith, J., on the other hunil, lielil tliat tlie
acceptance havinj;: l)een in Knirland the English law mnst prevail. The
E.xciuquer ("hainl)er, without impugning the correctness of the decision
below in i)oint of law, reversed the judgment on the ground tiiat nud innttfr
of fart l)y French law the indorsement was sutlicieiit.

In In re Mmseilh-s Co., :J0 V\\. 1). ."I'.IH, bo L. J. Ch. lit! (decided since the
Bills of Kxciiange Act, 18.s2, but without reference to it. presumably in-cause
the bills were accepted before the passing f>f the .\ct), it was held l)y Pearson,
J., that the hohlers of a bill drawn in France but accepted by an Kuglish
company in England, were entitled to recover against such acceptors thougli
the indorsement might have been invalid by the law of Fmnce where it was
made. In this ca.se the learned judge laid stress npon the form of the bill as
constituting it an English instrument. Another case decided on the subject
before the I'.ills of E.xchange Act. 1H,S2, is Allen v. Keuihle, (J Moo. 1'. C. :U.),
in which case Lord Kingsdown states it as admitted that in the case of a bill
drawn in one country upon a ilrawee in amither, " tlie tirawer is liable
according to the laws of the country where the bill was drawn, and not of
the coimtry upon which the l)ill was drawn." See the explanation, however,
of this case by C'ockburn, C. J., in /koui/tntte v. Orennann, L. 1{. 10 Q. B. at
p. 540, where it is pointed out that the above ilirdtni was unneces.sary to the
decision of the ca.se, which turned upon the question whether the defenilant
in a Demerara court could avail himself of the Demerara law as to set-otl', a
question upon which the h jr fori nnist prevail, whatever miirht have been the
law governing the rontrnrt of the drawer, the defendant in the action. See
also McF<irlnne v. Xorria, 31 L. J. t^. B. 24.">.]

In Uihhs V. Fremont, 1) Exch. 2."), the holder of a dishonoured l»ill drawn at
Ciudad de los Angeles in California upon Washington, was held entitled as
against the drawer to Californian interest.

[In Rouqiu'tte v. Orermann, L. U. 10 Q. B. (decitled l>efore the Act of Iss'J).
at p. 536, the court discuss the supposed rule " tliat although the obligations
of the acceptor may be determined by the lex loci of the country in which the
bill is payable, tlie contract as between the drawer and indorsee must be
construed according to the law of the country where the bill was drawn."
" It is unnecessary," .says Cockburn, C. J., " to consider how far this position
may hold good as to matter of form, or stamp objections, or illegality of
consideration, or the like. We cannot concur in it as applicable to the sub-
stance of the contract, so far as presentment for payment is concerned; still
less to a formality lequired on non-payment, in order to enable the hoUler to
have recourse to an antecedent party to the bill." His lordship then points
out that the party transferring a bill for value "engages as surety for the
due performance by the acceptor of the obligation which the acceptor takes
on himself by the acceptance. His liability therefore is to be measured by
that of the acceptor whose surety he is, and as the obligations of the acceptor
are to be determined b_v the lex loci of performance, so also must be those of
the surety." The effect of the decision is that the court, following Roths-
child V. Carrie, 1 Q. B. 43 (though the reasoning of the court in that case has
been disapproved, see Home v. Rouqnette, 3 Q. B. D. 514), and Hirsrhfiehl v.
Smith, L. R. 1 C. P. 340, held that notice of dishonour according to English
law was not necessary, but that notice according to French law v.as sutlicieut

MOSTYN V. FABRIGAS. 949

to charge the defendants who were Manchester merchants, at the suit of the
plaintiff, an Englisli subject carrying on business in London, on a bill drawn
and indorsed to the plaintift' by the defendants in England, but upon and
accepted and dishonoured by a French firm at Paris. The state of facts was
that the time for payment of the bill with all other French bills was, daring
its currency, from time to time extended by the French Government in con-
sequence of national complications, and the Court of Queen's Bench held that
the drawer was equally with the acceptor entitled to the benefit of these
extensions, and so that the time for giving notice of dishonour only arose
when the acceptor failed to fulfil the obligations imposed upon him.

Another qualification of the supposed rule (irrespective of the Bills of
Exchange Act, 1882) that the liability created by an English indorsement is
to be measured simply by English law, is to be found in Home v. Rrniquette,
3 Q. B. D. 514. In that case a bill was drawn in England by Bryant, Foster,
& Co., on Chasserot in Spain, in favour of the defendant, who indorsed it in
England to the plaintifi". The plaintiff wrote his name on the back and for-
warded it to one Monforte, in Spain, who placed it to his credit under cir-
cumstances which the majority of the court held to constitute an indorse-
ment to Monforte in Spain. Monforte indorsed it in Spain to Clavero, who
indorsed it also in Spain to O'Connor & Sons. On presentment by them
for acceptance the bill was dishonoured. Notice of dishonour was not given
to the plaintifi' until after such a time as would in England have discharged
him ; but it was proved that according to Spanish law, no notice of dis-
honour for non-acceptance Avas required. The plaintifi' when he did receive
notice at once gave notice to the defendant, and paid Monforte : and was
held by the Court of Appeal, affirming the judgment of Lord Coleridge,
C. J., to be entitled to recover against the defendant. The court concurred
in thinking that the fact of the bill being a foreign one was immaterial, that
the liability of the defendant on his indorsement in England was governed by
English law; but that the plaintiff, being liable to Monforte, because, accord-
ing to Spanish law, no notice of dishonour was necessarj' to charge the
indorser, was entitled in his turn to have recourse against the defendant.

The 7-atio decidendi seems to be that a defendant, though indorsing in Eng-
land, and whether the bill be foreign or English, must be deemed to antic-
ipate the possibility of a subsequent foreign indorsement, and to undertake to
indemnify his indorsee against any liability he may incur by reason of such
later indorsement, though some of the links in the chain of indorsements
subsequent to his own may not be such as would bind the defendant if the
indorsement had been English.

The ratio decidendi which had been indicated above with reference to Home
V. Rouquette, or one founded on an analogous train of reasoning, is suggested
by Wills, J., in Lee v. Abdy, 17 Q. B. D. 809, as applicable to the question
of the liability of an English acceptor upon a bill indorsed abroad, and as
explaining Lebel v. Tucker and Bradlaiigh v. De Rin, supra. Qucere whether
the learned judge in suggesting that the liability of the acceptor is to be
measured l)y reference to what he must have contemplated would be the
probable place of indorsement gave sufficient weight to the fact that in Brad-
laugh V. De Ein the bill was treated by the majority of the court below as
a foreign bill, and the Court of Exchequer Chamber, though they do not
decide the point, deal with the case ou the same assumption. The bill being
treated as a foreign hill, the court below held (and the Exchequer Chamber
did not impugn that position) that the acceptor Avould be liable only upon an

950 MOSTVN V. lAISIIUJAS.

liulorsciuc-iit cUcctiial aiiaiiisl llu- ilrawer by tlif law of tin- placi- i»f l«suo.
On llii- otlior liaiui, in l.ihtl v. Tinker, tin; ))ill lM-in;j uii Knylhli I>1U, tlie
acceptor's liability was licti-nnincd only by Eni;lisli law, not because he waa
taken to have conteniplatetl ne>;otiation in Kn;;lanil only, but l»ecause tiiat
was the law of the place of his contract. In /.(/■ v. Alxlij, uhi supra, a Divis-
ional Court consisting; of Day and Wills. ,1.1., held that to an action on a life
policy ctlected in Knuland by tiie assijiiiee of the policy, It was a defence lliat
the assignment, thouj;h valid by Knglish law, was invalid and voiti l)y the law
of Cape Colony where the assij^nnient was made, and wiiere the a.ssi;^uor
and assignee were domicileil.

Tiie court considered that the decision In Lfbt'l v. I'lnki r was distiniiuish-
able as l)eini; on the liability of an acceptor of a l)ill of exchauLre which was
ditltrcnt from that of the defendants, who were l)einy sued not on a nego-
tiable instrument, i)iit as liable under a policy of insurance.

The Hills of Exchange Act, 1SS2 (4."> & 4(; Vict. c. fil), s. 72. proviilcs a.s
follows : —

" Where a bill drawn in one country is negotiated, accepted, or payable in
another, the rights, duties, and liabilities of the parlies thereto are determined
as follows : —

"(1.) The valiiiity of a liill as regards n'<|ui»itc-. in furni is dctcrinined l)y
the law of the jilace of Issue, and the validity as regards n-qnisites in form
of the supervening contracts, sJich as acce|)tance, or indorsement, or accept-
ance supra protest, is deterniined by tin- law of tlie place where such contract
was made.

" Provided that: —

" (a) Where a bill is issued out of tiic Iniled Kini,'dom it is not invalid l)y
reason only that it is not sta:npeil in accordance witii the law of the i)lace
of issue.

"(b) Where a Itill, issued out of the I'nitcd Kingilom, conforms, a.s
regards re«|uisites in form, to the law of the Inited Kingdom, it nuiy, for
the purpose of enforcing payment thereof, be treated as valid as between all
persons who negotiate, hold, or l)ecome parties to it in the Tnited Kingdom.

" (2.) Subject to the provisions of this Act, the interpretation of the
drawing, imlorsement, acceptance, or acceptance supra protest of a bill, is
determined by the law of the place where such contract is made.

" Provided that where an inland bill is indorsed in a foreign country the
indorsement shall, as regards the payer, be interpreted according to the law
of the United Kingdom.

" (3.) The duties of the holder with respect to presentment for acceptance
or payment, and the necessitj' for or sulTiciency of a protest or notice of
dishonour, or otherwise, are determined by the law of the place where the
act is done or the bill is dishonouretl.

" (4.) Where a bill is drawn out of but payable in the United Kingdom and
the sum payable is not expressed in the cnrrency 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.

" (5.) Where a bill is drawn in one country and is payable in another, the
due date thereof is determined according to the law of the place where it is
payable."

The wording of the Act, however, is not (luite clear, and by s. 07, s\il)-s. 2,
it is provided that " the rules of Common Law, including the Law Merchant,

MOSTYN V. FABRIGAS. 951

save in so far as they are inconsistent with the express provisions of this
Act, shall continne to apply to bills of exchange, promissory notes, and
cheques."]

" The rule," said Tindal, C. J., delivering judgment in the case of Trimbey
V. Vignier, 1 Bing. N. C. 151, " which applies to the case of contracts made
in one country, and put in suit in the courts of law of another country,
appears to be this, that the interpretation of the contract must be governed
by the law of the country where the contract was made : the mode of suing,
and the time within which the action must be brought, must be governed by
the law of the country where the action is brought."

This distinction was acted on in The British Linen Company v. Dntmmond,
10 B. & C. 903, where it was held that the English statute of limitations was
a good plea to an action on a Scotch contract which might in Scotland have
been put in suit at any time within forty years ; in De la Vega v. Vianna, 1 B.
& Ad. 284, where the defendant Avas allowed to be arrested for a debt con-
tracted in Portugal, and for which he could not have been arrested there ; in
Alivon and another (provisional syndics of the estate of Beauvain, a bank-
rupt) V. Furniral, 4 Tyrw. 751, where the Court of Exchequer acted on the
French law of bankruptcy; and in Huber v. Steiner, 2 Bing. N. C. 202, in
which the whole difficulty was in ascertaining whether the rule of foreign
law applied ad valorum contractus, or ad modurn actionis instituendcK.

It was an action on a promissory note; and the question was, whether
the French law of prescription formed a defence thereto, the action being
brought within the English period of limitation. On behalf of the defendant
it was contended that laws for the limitation of suits were of two kinds,
those which bar the remedy, and those which extinguish the debt; and the
following passage was cited [at p. 211] from Story's Commentaries on the
Conflict of Laws: — "Where the statutes of limitation of a particular
country not only extinguish the right of action, but the claim or title itself
ipso facto, and declare it a nullity after the lapse of the prescribed period, in
such a case the statute may be set up, in any other country to which tho
parties remove, by way of extinguishment." " This distinction," said Tindal,
C. J., delivering judgment, " when taken with the qualification annexed to it
by the author himself, appears to be well founded. That qualification is,
' that the parties are resident within the jurisdiction during all that period,
so that it has actually operated upon the case; ' and with such restriction,
it does indeed appear but reasonable, that the part of the lex loci contractus,
which declares the contract to be absolutely void at a certain limited time,
without any intervening suit, should be equally regarded in the foreign
country, as the part of the lex loci contractus, which gives life to and regu-
lates the construction of the contract; both parts go equally ad valorem
contractus, both ad decisionem litis." However, the court, upon examination
of the French law of prescription, thought that its effect was not to extin-
guish the right, but, as in England, only to bar the remedy, and therefore
that the defence was in that case unavailable. [See also MacFarlane v. Norris,
2 B. & S. 783; Flarris v. Qidne, L. R. 4 Q. B. 653, 38 L. J. Q. B- 331; Pardo
V. Bingham, L. R. 4 Ch. 735, 89 L. J. Ch. 170; Alliance Bank of Simla v.
Carey', o C. P. 1). 429.]

Supposing the law of a foreign country to be, that a contract is, after a
certain time, to be deemed ahsolutely extinguished, it seems not quite reason-
able to say that the removal of the parties out of the jurisdiction, while
that time is running, should authorise the courts of this country to consider

9.VJ MOSTVN \. FAlUtlCAH.

it in cssr aftiT llio piTiod pn-Ilxcd. 'I'lu' aiitliuritifs rstul)li>li, tliai the law
of tlie country whcrt' tlu' contract is made must ;;ovcrn it, and must l>i- looked
on as impru'tlly iucori)orulcd with it. Now, if the contract liad containctl
a]>r(>cis() tliat it should l)c' ai)solutcly void if not enforced witldn a certain
time, no dt>ul)t the Ku<;lisli courts would hold it void after the expiration of
that time. But what ditference can it make that such pmriso Is implied from
the law of the country where the contract was made instead of hein^ ex-
pressed in terms? Is it not in botli cases equally part of the contract? If,
indeed, the rule of the foreign law be, that the contract shall, after the lapse
of a certain time, l)ecome void, provided that the parties to it continue to
reside all that time in the same country, the arrival of the perioil prefixed or
its avoidance will depend on the contiu'reucy of their ai)staiidn;r from absent-
\n<^ tliemselves; and, if they leave the country, never will arrive at all; and
this is, jx-rhaps, what Judye Story intends l)y the words '• that the parties are
resident within the jurisdiction durinj; all that period, so tftut it Iihk nrtuitlly
operntrd upon the rtisc" For if the law be so frametl as to opiTate upon the
case without such residence, the (|ualitlcation appears to be inapplicable [but
sec per Lord liroui^ham, Don v. Lippmnnn, .'> CI. & Fin. 1, IG.

The Knylish statute of limitations does not apply to charges on real estate
sitmvte abroad, as to which the lex loci rei sitir is the law applical)le. Pitt v.
iJnrre, ^^ Ch. I). 2[K>.]

In Lopez V. linrslem, 4 .Moore ( I'rivy <"ouiull). .'JOO, tin- same law was acted
upon with reference to the limitation of time |)rescribed for liriniiiny an
ai)i)»'al after condemnation by a vice-admiralty court under tlu- Slave Trade
Abolition Ait. .". (i. I, c. 11:'.. II was contended in tliat case that the owners
of the car;;o were not bound by the enactment, beinij forei^jners ; l)ut the
court, admittins: that the British parlianjent certainly has no {reneral power
to le,i;islate for foreiijners out of the dominions and beyond the juri.sdiction
of the British Crown, held that a British statute nniy llx a time within which
application nnist be made for redress to the tril)unals of the emi)ire: "on
matter of procedure," they said, "all mankind, whether aliens or liejje sub-
jects, plaintitl's or defendants, appellants or respondents, are l)ound by the
law of tin: fo nun," and " (/' (i l(i>e leere mude upon tliia suhjer.t icorkimj oppns-
sion and injuatire to the suhjectx of o foreiijn sttife, that state might make
representations and remonstrances against this law to (jur government ; Ijut
while it remains in force, judges have no choice but to give it effect." See
further Ileriz v. Riera, 11 Sim. 318; Cooper v. Lord Waldeyrave, 2 Beav. 282;
Beuuce v. Muter, 5 Moore (Privy Council), (j9; Fertjuson v. Fi/ffe, 8 CI. & Fin.
121 ; Leslie v. Baillie, 2 You. & Coll. C. C. 91 ; [Cope v. Doherty, 4 Kay & J.
3r.7, atlirmed 2 l)e G. & J. G14; Jar/o v. Graham, 32 L. J. Adm. 49; The Wild
Ramjer, 32 L. J. Adm. 49.

In the recent case of Ellis v. M' Henry, L. R. (J C. P. 228, 40 L. J. C. P. 109,
the decisions as to what amounts to a discharge of a foreign cau.se of action
ai"e elaborately reviewed. In that case it was held that a discharge by an
English composition deed was binding in Canada, and also was clearly bind-
ing and effectual as an answer to proceedings commenced in this country on
a Canadian cause of action ; but further, that no advantage could be taken
of such a discharge as an answer to an action on a judgment obtained in a
Canadian Court, where such discharge might have but had not lieen pleaded.
In giving judgment, Bovill, C. J., lavs doAvn the three following very impor-
tant propositions: — "In the first place, there is no doubt that a debt or
liability arising in any country may be di.-schargcd by tlie laws of that country.

MOSTYN V. FABRIGAS. 953

and that such a discharire, if it extinguishes the debt or liability, and does
not merely interfere Avitli the remedies or course of procedure to enforce it,
■will be an efl'ectual answer to the claim, not only in the courts of that
country, but in every other country. Secondly, as a general proposition,
it is also true that the discharge of a debt or liability by the law of a country
other than that in which the debt ai'ises, does not relieve the debtor in any
other country. Thirdly, where the discharge is created by the legislature or
laws of a country which has a paramount jurisdiction over another country
in which the debt or liability arose, or by the legislature or laws which govern
the tribunal in Avhich the question is to be decided, such a discharge may be
effectual in both countries in the one case, or in proceedings before the
tribunal in the other case." See also PhilUps v. Eyre, L. R. 6 Q. B. 1, and
ex parte Pascal, 1 Ch. D. .509, 4.5 L. J. Bank. 81.]

Another application of the rule that procedure is to be governed by the
law of the country in wliich the action is brought, may be found in the judg-
ment of the Court of Exchequer, in the case of the General Steam Naviga-
tion Company v. Guilloii, 11 M. & W. 877. The action was on the case for
running down a ship at sea ; one of the defendant's pleas stated that he was
a Frenchman, and that the injury complained of was committed on the high
seas, out of the jurisdiction of the Queen of England, not by the defendant
personally, but by the master of a French vessel in the employ of a French
company, of Avhich the defendant was a shareholder and acting director; that
the defendant never was possessed of, or interested in, the vessel which did
the injury, otherAvise than as such shareholder, and that by the law of France
he was not responsible for or liable to be sued or impleaded individually, or
in his own name or person in any manner Avhatsoever, but that by that law
the company alone, by their style or title, or the master or person in command
for the time being of the vessel, was responsible for and liable to be sued or
impleaded, and that the defendant was not the master or person in command.
Upon the grammatical construction of that plea, the Coui't of Exchequer
were divided in opinion, but they agreed that if the plea were taken (accord-
ing to the consti'uction put upon it by Parke, B., and Gurnej', B.), to aver
that by the law of France the defendant was " not liable for the acts of the
master; but that a body established by the French law, and analogous to an
English corporation, were the proprietors of the vessel, and alone liable for
the acts of the master who w^as their servant and not the servant of the
individuals composing that body ; " there was (as they were all strongly
inclined to think) a good defence to the action ; but that if, on the other
hand, the plea were taken (according to the view of Lord Abinger and
Alderson, B.) to mean, " that in the French courts the mode of proceeding
would be to sue the defendant jointly with the other shareliolders under the
name of their association;" then that it was bad on the ground that '• the
forms of remedies and modes of proceeding are regulated solely by the law
of the place where the action is instituted, the lex fori ; and it is no objection
to a suit instituted in proper form here, that it would have been instituted in
a different form in the court of the country where the cause of action arose,
or to which the defendant belongs."

So where a colonial act gave a mode of proceeding against a banking
company by suing their chairman, and provided a particular mode of pro-
ceeding upon that judgment, against members for the time being, it was
considered that tlie members might, even in respect of a cause of action which
arose in the colony, be sued in England either for the original debt or upon

954 MOSTYN V. I aiu:1(;as.

the jndfiment. Bank nf Austrcthtsin v. J/unUnfj, [D < '. IJ. •;•;!] ; I'.t L. .1. 'M.'>;
Jiiiuk of Aus(raJasia v. Ai<(s, 1(! Q. B. 117; [h'flmlt v. Mamliiill, 1 C. H. N. S.
241 ; }'anytteli)i v. Jinunnl, 'Sd L. J. ('. 1*. 7'J.

And in Jiullork v. O/nv/, L. R. 10 Q. IJ. 27t;. J I L. .1. Q. IJ 121, wliidi was tin
:i<tinn on a contract, a |)lea was lit-ld l)ad wliicli alk-ned tliat the contract wiw
nnide by the |)hiintitf, in Scotlanil, witii a Scotdi Ilrni, anil was to be jkt-
formed wholly in Scotland, and that by Scotch law it was a condition prc<-o-
dent to the individual liability of the defenilant as a niuniber of the linn, that
the llrni, or the whole of the partners jointly, should first liave been sued.
The Court of Queen's Bench lield that, in an Knfjllsli Court, non-joinder nf
tlie otlier parties was merely uround for a i)lea in abatement, not for one
in bar, that tiie matters alleijed in the i»lra were nun- matter t)f proci-dure,
and that tlie plea was bad.

In Cojiin V. ^UUdti.^iin, 1 Ex. 1). 17, J.j L. J. E.\. l.'j, the defendant was a
shareholder in a French company, the statutes and provisions of which i)ro-
vided that, in case of litiu;ation between a shareholder and tlie rest of tlie
company, the shareholder's domicile should be in Paris, and that in default
thereof service at a public otllce should be good. In the action, which was
on a French judgment, the above facts, tojjether with the allej;jation that by
French law the tlefendant was bound by the company's statutes, were held a
good answer to a plea that the defendant was not domiciled within the juris-
diction of France, nor a native of France, nor served with i)rocess within the
French jurisdiction duriiii; the orii^inal French suit.

A plea to an acti«)U for an assault that it was commit ttil in a forcii^n coun-
try, where damaji;es are not recoverable in respect of it until <ertain i)eual
proceedings have been commenced and determined there, goes only to pro-
cedure : Scott V. Lord iSet/mour, 1 II. & C. 219.

On the same principle the Master of the Rolls refused to give priority in an
administration suit in this country to the claim of a foreign creditor, although
the debt, which had been contracted in Venezuela, hail been registered, so as
to acq.iire, according to the law of that country, a priority in the distribution
of the assets: Parda v. Bimjhrtm, L. K. (J Va\. 485. And so in Ex pnrtt' Mel-
botirn, L. 11. G Ch. G4, 40 L. J. Bank. 05, a wife was allowed to prove against
the estate of her husband, under an English bankruptcy, as a creditor in
respect of a marriage contract pari pesifu with the other creditors; although,
by the law of Batavia, where the contract was made, it would have had, for
want of registration, no ett'ect with regard to third parties : the court holding
that the effect of this law was only to give the other creditors priority over
the Avife, and that all questions of priority must be determined by the lex
fori.-]

In Brnicn v. Thornton, 6 .V. ^!l E. 185, a charter-party was entered into at
Batavia. According to the law prevailing there, such instruments are entered
in a pul)lic book, Avhich is the only evidence of their contents in that colony;
a public notary makes two copies from the book, and delivers one to each
party, and these are evidence of the original in all Dutch courts except
Batavia. Held, that such copies are not evidence of the original in this coun-
try. The courts here will not adopt rules of evidence from foreign courts.
Appleton V. Lord Brayhrook, 2 Stark. G, G M. & S. 34; Black v. Lord Bray-
brook, 2 Stark. 7, G M. & S. 39; [see Abbott v. Abbott, 29 L. J. Matrim. Cases,
29; Bain v. Whitehaven Eh/. Co., 3 H. & C. 1.]

In the case of Tulloch v. Hartley, 1 You. & Coll. C C. 114, the A^ice-Chan-
cellor Knight-Bruce is supposed to have departed from this rule, on the

MOSTYX V. FABE-IGAS. 955

ground that the property in litigation was real property ; but his liouour does
not appear to have intended to lay down any exception to the rule so wide as
the alleged ground of his decision might suggest. See Yates v. Thomson,
3 CI. & Fin. 544.

[In Ilkks V. Powell, L. R. 4 Ch. 741, the court declined to enforce an un-
registered charge on real estate in India, an Indian statute having enacted
that no such charge on real estate in that country should, unless duly regis-
tered, "be received in evidence in any civil proceeding in any court, or be
acted on by any public officer ; " the Lord Chancellor Hatherley holding that
"it would be a narrow construction, regard being had to the whole Act, to
say that the above provision related simply to the question of evidence."

But where to an action on a bottomry bond it was pleaded that the bond
was bad because the master had omitted to communicate with the cargo
owner before hypothecating the cargo, the C. A. held that the necessity im-
posed by English law for doing so was not merely evidence so as to be mat-
ter of procedure. " The manner of proving facts," says Lord Esher, M. E.,
" is matter of evidence and to my mind is matter of procedure, but the facts
to be proved are not matters of procedure ; they are the matters with which
the procedure has to deal." The Gaetano and Maria, 7 P. D. at p. 144.

The provisions of the 4th section of the Statute of Frauds have been held
only to affect the procedure on contracts ; therefore a contract made between a
British and a French subject in France, and to be performed there, was held
to be unenforceable here, because it was not to be performed within a year
from the making of it, and was not in writing. Leronx v. Brown, 12 C. B.
801. See, hoAvever, the judgment in Williams v. Wieeler, 8 C. B. N. S. 316,
and in Gibson v. Holland, L.' R. 1 C. P. 8 ; also the judgment of the Exch.
Cha. in Lloyd Y. Guibert, L. R. 1 Q. B. 115; and per Field, J., in Baioley v.
Baioley, 1 Q. B. D. 461, 45 L. J. Q. B. 675, and Adams v. Chitterbuck, 10 Q. B.
D. 403, '52 L. J. Q. B. G09.

In the last case it was held by Cave, J., to be no defence to an action m
Eno;land on an agreement of tenancy of a house and shootings in Scotland
that the agreement was not under seal : the provision of English law to that
effect not being matter of procedure so as to be applied as lex fon, and there
being no such provision in the law of Scotland.

In the judgment in the principal case it is stated {ante, p. 647), that " the
way of knowing foreign laws is by admitting them to be proved as facts."
See on this point, Bradlaugh v. De Bin, L. R. 5 C. P. 473; Orr-Ewing v. Orr-
Ewing, 22 Ch. D. at p. 465, per Jessel, M. R. The cases are not altogether
consistent as to how far it is necessary that the evidence should be that of
experts, with actual experience of practice in the foreign courts. See The
Sussex Peerage Case, (11 C. & F. 85,) where the evidence of Cardinal Wise-
man was admitted as to the matrimonial law of Rome, and Van der Donckt v.
Thellusson, (8 C. B. 812) ; but, contra, see Bristowe v. Seqnerville, 5 Ex. 275, a
decision wliich has been recently followed by Sir James Hannen in In the
Goods of Bonelli, 1 P. T). 69, refusing to admit the evidence as to Italian law
of a Mr. John Reeve, who described himself as a certified special pleader, and
as familiar with Italian law; and again in Cartwright v. Cartwright, 26 W. R.
684, where the evidence of an English counsel as to Canadian law was simi-
larly rejected.

By tlie 24 Vict. c. 11, superior courts of law may for the purpose of
ascertaining the law of a foreign state, send a case to a court of that
state.

956 MosTVN \'. i'ai;i:i(;as.

In the absence of proof to tin- iniitrary, fi>r(ii;ii l;i\v is |)rfsiiiiifi| to \u- tlic
same as our own.

As to when it may be a i^rouiid for a stay of proc«'i'iliiii;s in iin action hepj
that anotlier action l)y tin- plaiiilill' aj^ainst the dcfenilant for tlie same cause
was pendinj; abroad, see Mrllfunj v. Leiris, 22 Ch. 1). 307, ">2 L. J. Cli. :12.'>;
Norton v. Florence Land Co., 7 C\\. D. ;5;52 ; /'frnrinn diKinn Cimiji'tnij v. liock-
woldt, 23 Ch. D. 225; Ilyman v. //</m, LM Cli. I). r,M ; 'I'hf ('liristianshor<j, 10
P. I). 141.]

The dictum attributed to Lord MansiUld, in Moxii/n v. l-'iO>riij<is, and-, i'A't,
viz., " Tlie •governor is in tiie nature of a rircroij, and tlicrcfori' h)cally, <lurin};
his {lovernment, no civil or criminal action will lie ai;ainst him : the reason is,
because upon process he would be subject to im!)risomnent," was dissented
from by the .lutlicial Committee of the Privy Council in tlie case of ///// v.
Bi<jije,'i Moore (Privy Council), 4t;r>; and Lord Broui^ham suir^iested, that
the expressions used by Lord Manstlelil may have been somewhat altered in
the report. In Hill v. nitj(jp, to an action of debt l)rou,iilit in a colonial court
ajjainst the fjovernor, a plea stating his vicerejjal cliaracter was held to attbrd
no defence; but Lord IJronjjham, advertinj; to the inconvenience sugyjested
by Lord Manslleld, said, in ^ivin;^ the jud;rmentof the court, " It is not at all
necessary that in holdin;; a ;;overnor liable to l)e sued we should hold his per-
son liable to arrest while on service; that is. while resident in his govern-
ment. It is not even necessary that we shoidd meet the sufji^estion of his
goods in all circumstances l)einix Habli- to Ik- taken in execution — thoui;h
that is liable to a ilillerent consitleralion."

[In the important case of Lulnj v. Wmlrhousf, 17 Irish ('. L. Kep. tJ18, It
was decided that the Lord Lieutenant of Ireland was not liaiile to be sued in
an Irish court of law for an allesjed tortious act done by him in his viceroy's
capacity : and on the motion of the Attorney-General for Ireland, the Court,
upon allidavits, and relying; on the authority of the principal case, directed
that a writ issued against the Lord Lieutenant in resi)ect of such an allejjced
act should be suunnarily taken off the llle, without pnttim; him to plead such
defence. The editors are informed that this case has been recently acted
upon by the EniLjlish law oflicers.

With regard to the rights and liability of sovereign princes themselves to
sue and be sued in the courts of this country, the general rule dedueible from
the cases seems to be that in respect of acts of state they can neither sue nor
be sued. Personally, foreign .sovereigns cannot be sued af all, and though it
has been held that in some cases proceedings in rem may be instituted against
their property in this country (The Charkieh, L. R. 4 .V. «& E. 100, 42 L. J.
Adm. 17), the di<-ta to this etlect have been overruled in the Court of Appeal,
The Parlement Beh/e, 5 P. D. 197. In certain cases a petition of right may
be instituted by a British subject against the Crown; " but it seems clear to
us," says Lord Coleridge, C. J., delivering the judgment of the Court of
Appeal, in Rustomjee v. The Queen, 2 Q. B. D. G9, 4G L. J. Q. B. 238, " that
in all that relates to the making and performance of a treaty with another
sovereign, the Crown is not and cannot be either a trustee or an agent for
any subject whatever. The duty," his lordship adds, of the English sover-
eign in such a case " w-as a duty to do justice to her subjects, according to
the advice of her responsible ministers ; not the cUity of an agent to a princi-
pal, or of a trustee to a cestui que trust. If there has been a failure to perform
that duty, which we only suggest for the sake of argument, it is one which
Parliament can and will correct — not one witli wliich the Courts of Law
can deal."]

MOSTYN V. FABRIGAS. 957

The liability of sovereign princes to be sued in the courts of foreign
countries underwent a full discussion in the very remarkable case of the Duke
of Brunswick v. The King of Hanover, G Beav. 1, Avhere the defendant was at
once a king of one country and a subject of that in which he was sued.
Lord Langdalc, ]\I. R., in a judgment which exhausts the subject, stated his
opinion: 1. That the King of Hanover was "exempt from all liability of
being sued in the courts of this country for any acts done by him as King of
Hanover, or in his character of sovereign prince; " but that, " being a sub-
ject of the Queen," he was " liable to be sued in the courts of this country
in respect of any acts and transactions done by him, or in which he may have
been engaged, as such subject." 2. That " in respect of any act done out of
this realm, or any act as to which it may be doubtful whether it ought to be
attributed to the character of sovereign or to the character of subject, it
ought to be presumed to l)e attributable rather to the character of sovereign
than to the character of suljject." 3. That in a suit in the Court of Chancery
against a sovereign prince who is also a subject, "the bill ought upon the
face of it to show that the subject-matter of it constitutes a case in which a
sovereign prince is liable to be sued as a subject." And the decree of the
Master of the Rolls, allowing the demurrer in that case to a bill seeking an
account against the King of Hanover as guardian of the plaintiff", to which
office the king, upon his attaining the throne of Hanover, had been appointed
under an arrangement springing out of the deposition of the duke pursuant
to a decree of the Germanic Diet in 1830, was affirmed by the House of Lords
on appeal (2 House of Lords Cases, 1), on the ground that a sovereign is not
liable to be sued in respect of matters of state.

In the case of the Nabob of Arcot v. East India Company, 3 Br. C. C. 291,
4 Br. C. C. 180, 2 Ves. J. 56, see Beames, El. PI. 73, the Court of Chancery
refused to entertain a suit arising out of transactions of state between
soA'ereign powers, though the defendants were subjects of this country.

In Munden v. Tlie Duke of Briinswick, 10 Q. B. 656, it was considered to be
no plea to an action on an annuity deed that the defendant was a sovereign
prince at the time it was made without showing either that it was an act of
state or that the defendant retained his sovereign character at the time of
action brought.

And in Wadsioorth v. The Queen of Spain, 17 Q. B. 171, and De Haber v.
77ie Queen of Portugal, 17 Q. B. 196, proceedings in foreign attachment
instituted against property belonging to those sovereigns in their public
capacity by the holders of Spanish and Portuguese bonds were stayed by
prohibition. [In support of the general principle of the immunity of sover-
eign princes and of their property in respect of acts of state, see further
Gladstone v. The Ottoman Bank, 32 L. J. Ch. 228 ; Same v. Musurus Bey, Id.
155; Smith V. Weguelin, L. R. 8 Eq. 198; 38 L. J. Ch. 465; Doss v. Secretary
of State for India, L. R. 19 Eq. 509; Tvjycross v. Dreyfus, 5 Ch. D. 605, 46 L.
J. Ch. 510; Vavasseur v. Krupp, 9 Ch. D. 351; llie Constitution, 4 P. D. 39;
48 L. J. P. D. & A. 13.

In the case of The Charkieh, L. R. 4 A. & E. 100; 42 L. J. Adm. 17, Sir R.
Phillimore elaborately discusses the subject of the immunities of foreign
princes in this respect, and lays down that the courts of this country have
jurisdiction to entertain proceedings instituted in rem, though the property
be that of a foreign sovereign, and in some cases, it would seem, even though
such property may be " of a public character, as for instance a ship of war : "
and further, that a sovereign may, by assuming the character of a trader.

958 MosTVN V. 1 ai{Km;a.s.

waive in respect of smli tnvdiiiir tlu- privile;;e wliicli lie enjoys ;;cner:illy .•. .
a soverei<;n and rendt-r liiniself lial)le to tlie jurisdiction of an Kntjlish court.
The Court of Queen's Bencli refused to interfere in this case by prohibition
to tlie Court of Admiralty. Thp Chnrkieh, L. K. H Q. B. T.tT ; 42 L. J.
Q. B. 75.

The above dicta, however, were unnecessary to the decision, as tlie learn<Ml
jndije further held that the Viceroy of Ejjypt, to whom the Churkiih l>elon;;cd,
was not afuri'i(/n s<irerri(jn so as to be entitled to the privilcj^e claimed. And
in the important case of The ]'itrli')neiit Bi'ltjr, "> V. D. 1'.)". the Court of
Appeal, after full considi-r.ition, overruled them, and held that foreign sover-
ei^j^ns enjoy the same immunity from procecdinirs in nm as from actions in
personaui, and that their property is ecpially privileged in this respect whether
ships of war or trading vessels. The subject will be found very fully dis-
cussed in the interesting and exhaustive judgment delivered by Lord Esher,
then Lord Justice Brett, in the last cited case.

In the later case of Strnusherg v. RepnhUc nf Costa liira, 21l W. R. 12'), Lord
Justice James, after stating that '■' it is a violation of the respect due to a
foreign sovereign or state to issue the process of our courts against such
sovereign or state," mentions two exceptions, if they can be called excep-
tions, to this rule. First, " that where a foreign sovereign or state comes into
the courts of this country for the purpose of obtaining some reme<ly, then by
way of defence to that proceeiling the person sued here may tile across claim
against that sovereign or state for enabling complete justice to be done be-
tween them." Secondly, he refers to '* the case in which a sovereign may be
named as a defendant for the purpose of giving him notice of the claim
which the plaintiH" makes to funds in the hands of a third person or trustee
over whom this court has jurisdiction, and who alleges that the foreign sov-
ereign has also some claim upon the funds in iiuestion. These," adds his
lordship, '• arc the only exceptions."

Thus — to illustrate the llrst exception and the way in which it has been
cnf oi'ced in our courts — if a foreign sovereign sue here, and a cross action
be brought, our courts will stay proceedings in the original action until the
foreign sovereign name a proper person to be made a defendant for the pur-
pose of discovery, see Hepnblic of Peru v. Wer/ueliii. L. R. 20 Eq. 1-tO; Repuhlir
of Costa Rica v. Erlanger, 1 Ch. D. 171, and in default of a sufficient affidavit
of discovery being made, will dismiss the proceedings, RepnhUc of LUieria v.
Rye, 1 App. Cas. 139, 45 L. J. Ch. 297. Security for costs may be ordered:
Republic of Costa Rica v. Erlanger, 3 Ch. D. C2.

Whilst instances exemplifying the second exception will l)e found in Glad-
stone V. Musnrus Bey, 32 L. J. Ch. l.')5, where a court of equity granted an
injunction restraining the Bank of England from paying over, except under
direction of the court, a sum of money deposited by the plaintiff as caution-
money for the fulfilment on their part of a concession granted to them by
the Turkish government : and in Laririere v. Morgan, L. R. 7 Ch. 550, 41 L. J.
Ch. 746, where Lord Ilatlierley, C, affirmed a decree of Malins, V.-C, by
whicli it was directed that a fund deposited with persons in this country by
the French government for the purpose of a contract made by them with the
plaintifls should be applied in payment of his claims under the contract. In
neither of these cases did the foreign government appear. The judgment in
Laririere x. Morgan was reversed in Dom. Proc. ; but upon the ground that
the facts showed only a personal undertaking by the defendant, not any trust
or assignment of a trust-fund, so as to give the court jurisdiction, Morgan v.

IMOSTYN V. FABRIGAS. " 959

Lnriviere, L. R. 7 H. L. 423, 44 L. J. Ch. 457. The same distinction was
dwelt upon in Twycross v. Dreyfus, uhi sup. and in The Pnrlement Beige, 5 P.
D. at p. 201. Both tliese cases are distinguislied on the ground that in eacli
of tlieni tliere was a trustee wlio could be sued in our courts.

In the case of a suit by a foreign sovereign in amity with us, although the
foreign sovereign is entitled to sue in our courts for wrongs done to him by
English subjects without authority from the English government in respect
of property belonging to him either in his individual or his corporate capacity,
yet he cannot maintain a suit here for invasions of his prerogative as reign-
ing sovereign. See the judgments and the cases collected in The Emperor of
Austria v. Day, 30 L. J. Cha. 690 ; The King of Portugal v. Bussell, 31 L. J.
Cha. 34; Prioleau v. United States of America, L. R. 2 Eq. 659; 36 L. J. Ch.
36 ; United States of America v. Wagner, L. R. 2 Ch. 582 ; United States v.
McRae, L. R. 8 Eq. 69. Nor can the foreign sovereign sue in the name of
his ambassador; Penedo v. Johnson, 22 W. R. 103.

As to how far an English court will entertain an action by an English
subject engaged in the service of a foreign government against another offi-
cial in the same service for a libel contained in a report made by the defend-
ant in his official capacity, both plaintiff and defendant being British subjects,
see Hart v. Gumpach, L. R. 4 P. C. 439 ; 42 L. J. P. C. 25.]

Upon the same principle which exempts sovereigns from liability to be
sued in respect of acts of state, seems to rest the immunity of a soldier
against actions by foreigners for acts done by him in a hostile manner, in the
name of the government which he serves, provided those acts be either au-
thorised by an actual command, or ratified by a subsequent approval of the
government : to such acts the maxim respondeat superior seems to apply in
its widest sense : and if any injury inflicted by them, (if redress be denied by
the government,) there is no remedy but an appeal to arms ; see Vin. Abr.
Prajrogative (L. a): Elphinstone v. Bedreechund, 1 Knapp. (Privy Council),
316; Dobree v. Napier, 2 N. C. 781; Buron v. Denman, 2 Exch. 167; Paradine
V. Jaiie, Style R. 48; [Reg. v. Lesley, 1 Bell, C. C. 220, S. C. 8 Cox, C. C. 269;
29 L. J. Exch. 877; The Secretary of State, &c., of India v. Kamachee Boye
Sahaba, 13 Moore, P. C. 22.

On a question whether a government officer was liable to the plaintiffs (who
were Indian subjects of her Majesty) for an act done by him in his oflicial
capacity, the lords of the Privy Coimcil laid down, that " if the act which he
did was in fact wrongful as against the plaintiffs, and produced damage to
them, they must have the same remedy by action against the doer, whether
the act was his own spontaneous act and unauthorised, or whether it was
done by the order of the superior power. The civil irresponsibility of the
supreme power for tortious acts could not be maintained with any show of
justice, if its agents Avere not personally responsible for them; in such cases
the government is morally bound to indemnify its agent, and it is hard on
such agent if this obligation is not satisfied; but the i-ight to compensation
in the party injured is paramount to this consideration." Rogers v. Rojendro
Dult, 13 Moore, P. C. 236 ; see per cur. Feather v. Reg. , 35 L. J. Q. B. 200, 209 ;
S. C. 16 C. B. N. S. 310; Tobin v. Reg., 33 L. J. C. P. 199. See 0' Byrne v.
Hartington, I. R. 11 C. L. 445, 453, as to the non-liability of a superior officer
for a legal order illegally carried out, and see Grant v. Secretary of State for
India, 2 C. P. I). 445, 46 L. J. C. P. 681, as to the non-liability of a govern-
ment oflicial for the dismissal of a military officer, or for the publication of
such dismissal in the Gazette.

960 MosTVN V. I aih:i(;as.

As to tho non-liability of a H'>v«'rn!nont odlclal on a contract ma»lo by him
for the public, sec (yUrmlij v. CurtUrell, '21 W. li. 34(»; I'ltlmvr v. llnlrhininni,
6 App. Ca. G19.

As to the liability intir se of persons jojtiirif; in u iiostile expetlition for uctH
done in ol)edience to the lawful orders of fjovernnieiit olllcers sent out in
coinnuind of the expedition, see Ilixhikinson v. Firnir, 2 ('. B. N. S. 41'>.J As
to an a<'tion for acts done abroad by a rouannndinij offirer in Ins ollicial capa-
city, as reducin!; a ni)n-conin>issioiied ollicer to tiie ranlis, Jtc, see linnriH v.
Keppcl, Wils. :{14.

Whetlier an nmhiins(Hh>r is entitled to absolute exemption from suit in the
courts of the country to which he is sent, or only to be protected from
process which nuvy ilirectly atl'ect his person or property, was discussetl in the
case of Taylor v. Dntuct, 14 C. B. 4«7, where it was consiilered unnecessary
to decide the question, the court being of opinion that such a privilejie, If It
existed, was at all events waived by the defentlant's havin<; volinitarily
appeared to the writ, and not raised any objection until a lat»' sta;:e of the
proceedinj;s. (^iKirf. whether in that case too much stress was not laid upon
the opinion of Bynkershoek as to proccedimjs in rem in tlie case «>f princes
and ambassadors; .see Wailximrth v. Thr (ini'i-n <>/ Spain, 17 (^. B. 171, per
curiam. [The (juestion has since been resolved In favour of the ambassador,
on the principle " ouinis rnartin a Ir'jato nhesse (Ithet." The Mmidahna Steam
Nuvi(jatinn Co. v. Martin, 2 El. & El. y4, 28 L. J. Q. B. ;^10; (Hadstone v.
Mustiriis Hoy, 32 L. J. Cha. 155; The Secretary of State for India v. Kamachee
Boxje Sahaha, \:\ Moore, Pr. C. 22; Parkinson v. Potter, IG Q. B. D. 152.]

As to the liability of jndijes for judicial acts, see further, Calder v. Ilalkett,
3 Moore (Privy Council). 28; flraham v. LajUte, Ibid. :5H2 ; IlonUlen v. Smith,
14 Q. B. 841; [Gelen v. Hall, 2 H. & N. 371); and Harnardintone v. Soame, 6
Howell, State Trials, 10'.)5 ; Kemp v. Xerille, 10 C. B. N. S. 54i», M L. J. C. P.
158; Fray v. Blarkhnrn, 3 B. & S. 57G ; Scott v. Stansjiehl. L. U. 3 Ex. 220;
37 L. J. Ex. 155; llf/i'fV v. M<t<ia<itlan, 1 Ex. 1). :'.7f;. 4."> L. .1. Ex. 089].

Jurisdiction of the Suhject-Matter.

Preliminary distinctions. — A .superficial examination of the
autluuilie.s, on the subject of traii.sitory actions, jjresents much
apparent confusion that falls away when expressions are accu-
rately defined, and the subject proi)erly subdivided. In the
first place, the division of actions into local and transitory must
not be confused with that into real, personal, and mixed'. The
latter will prove no reliable guide to the former. Again, the
question of jurisdiction of the person is, of course, quite dis-
tinct from that of jurisdiction of the subject-matter. In deter-
mining if a court have jurisdiction of a cause of action that
arose, or affects property, outside of its territory, we are not
assisted b}' the circumstance that the defendant has been per-
sonally served with its process within that territory, or has vol-
untarily submitted himself to that jurisdiction. Jurisdiction of

MOSTYN V. FABRIGAS. 961

the person is quite as essential as jurisdiction of the subject-
matter to make the judgment or decree a valid one, but its ex-
istence does not aid us in determining whether the cause of
action itself be local or transitory. Then, again, there is the
distinction between the power of a court to enforce a cause of
action arising, or affecting property, outside of its territory, and
its duty to determine the controversy according to some law
other than its own ; as, for instance, lex loci contractus or lex loci
rei sitae. The application of the foreign law may determine the
sufficiency of a claim or defence, but only in isolated cases does it
determine the locality of an action. At all events, the duti/ to
apply a foreign law is a different thing from the power to enforce
a foreign cause of action. And it is a general principle that the
provisional remedies incident to the law of the forum accom-
pany the general jurisdiction, irrespective of the practice of the
forum where the cause of action arose. So, too, the capacity
in which a defendant is sued may defeat the jurisdiction ; a
corporation may not exist outside of the territory of the sover-
eignty which created it ; Gibbs v. Queen Ins. Co., 63 N. Y.
114. Courts may decline to interfere with the distribution of
assets by a foreign administrator or receiver ; Davis v. Morriss,
76 Va. 21. And the jurisdiction of a Court of Chancery, act-
ing in personam on the conscience of the defendant, is only an
apparent exception to the doctrine that actions affecting the
ownership or possession of real j)roperty are local and confined
to the forum where the property is situated. So, too, the lack
of jurisdiction in so-called Federal causes is referable mainly to
those instances in which by the United States Constitution and
Acts of Congress, enacted pursuant thereto, Federal courts are
given exclusive jurisdiction, or one or both parties the right of
removal from state to Federal courts. With this distinction
the Federal cases off'er great assistance in determining the law
of the jurisdiction of the sul)ject-matter. In considering the
jurisdiction of causes of action conferred solely by statute, it
must be remembered that while there is a presumption that the
common law of one state is that of every other, there is no
such presumption in the case of statutory law ; Whitford v.
Panama R. R. Co., 23 N. Y. 465. Some confusion is made in
the books by cases construing statutes defining the jurisdiction
of local courts. It is uniformlj'^ held that such statutes do not
apply to actions arising out of the state in which they were

962 .MosrvN V. I ai;i:i(;as.

enacted; Home Iiis. Co. c Penii.sylv;mi;i II. K. Co., 11 Iliin
182. Again, there are exeeption.s more ajtpareiit than real,
where considerations of comity and international (jhligation
divest the onliiiary authoiity. As, lor instance, where coiirt.s
decline jurisdiction over residents as to pro[)erty which they
hold merely as agents of a foreign government; Leavitt v.
Dabney, 3 Ahb. Pr. N. S. 469 ; or of actions for j)ersc»nal inju-
ries done by a defendant, in the exercise of a foreign sover-
eignty, even though he no longer represent it; Ilatcli r. Haez, 7
Hun 596. And it should Ik; rcmcndK-red that the American
law on the juristliction of the subject-matter is somewhat com-
plicated by the circumstance that it is oidy in a certain sense
that the states are foreign to each other. For the purpose of
this note, however, it may be assuinc<l that they are, except so
far as the I'nited States Constituti«>n provides that "Full faith
and credit shall be given in each state to the public acts, records,
and judicial proceedings of every other state." Considerations
of public policy sometimes intervene to make courts decline
the jurisdiction which would otherwise be assumed. Thus,
although as a general ride courts apply the lex loci in constru-
ing all contracts involving questions of marriage, legitimacy,
and rights of succession to property, they will not enforce such
foreign law if it involves any conse([uences immoral, contrary
to general policy, or in violation of the conscience of the state
whose couits aie ap[)caled to; Eubanks v. Banks, 34 Ga. 415.

Jurisdiction in general. — Every act of a court is the exercise
of jurisdiction. .luiisdiction itself is the power to hear and
determine the controversy between parties to an action or suit.
If the law confers the power to adjudicate between the parties,
that is to say, to exercise judicial power over them, the court
has jurisdiction ; Rhode Island v. Massachusetts, 12 Pet. 657.
The question presents itself in three forms. A court may act
without this power, in which event, its act or judgment is
wholly void, and is as though it had not been done ; secondly,
a court may exercise its power Avrongfully, for which its judg-
ment must be reversed on appeal ; or, thirdly, it may use its
power rightfully, but irregularly, for which its judgment must
be corrected on motion ; Paine v. Mooreland, 15 Ohio 435 ; Gray
V. Bowles, 74 Mo. 419. Jurisdiction oi the person is acquired
when the party is before the court, in fact, or constructively,
by reason of service upon him of a process known to the law.

MOSTYN V. FABRIGAS. 9G3

and duly issued and executed ; Lange v. Benedict, 73 N. Y. 12.
An objection to jurisdiction on the ground of exemption from
the process of the court, or the manner in which it is executed,
is waived by appearance, without making the objection, or by
any distinct recognition of tlie court's authority in tlie course
of a cause ; Rhode Ishmd v. Massachusetts, 12 Pet. 657 ; Minne-
apolis Works V. Hedges, 11 Neb. 46 ; Graves v. Richmond, 56
la. 69 ; Rheiner v. Union Depot Co., 31 Minn. 289, and cases
there cited. Jurisdiction of the sul)ject-matter is the power
lawfully conferred to deal with the general subject involved in
the action. It is to be distinguished from the po^yer to act
upon a particular state of facts ; Hunt v. Hunt, 72 N. Y. 217.
And it is the power conferred by the act creating the court,
or possessed inherently by its constitution ; Lamar v. Commis-
sioners Court, 21 Ala. 772. In determining if a court have
jurisdiction of the subject-matter, questions as to service of
process, voluntary appearance, waiver of objections by answer-
ing on the merits, &c., become immaterial because jurisdiction
of the subject-matter cannot be conferred by consent; Dudley
V. Mayhew, 3 N. Y. 9 ; Montgomery v. Anderson, 21 How. 386 ;
Brondberg v. Babbott, 14 Neb. 517 ; nor by waiver, Orcutt v.
Hanson, 71 Iowa 514 ; except that in doubtful cases courts will
not permit the objection to prevail after the parties jji'oceed,
voluntarily, to hearing on the merits. Appeal of Adams, 6 Atl.
Rep. 100 ; nor by laches, Titus v. Relyea, 8 Abb. Pr. 177 ; nor
by confession of judgment, Coftin v. Tracy, 3 Caines 129;
Howell V. Gordon, 40 Ga. 302 (where it was held that a judg-
ment confessed by a non-resident is not binding against a third
jjerson, because the court has no jurisdiction against a non-resi-
dent, not served with its process). And a legislature, whose
powers by the constitution are confined to legislation, cannot
confer or dispense Avith jurisdiction by remedial legislation
validating a proceeding void for want of authority to entertain
it ; Maxwell v. Goet, 11 Vroom 383, and cases there cited. On
the other hand, jurisdiction cannot be abridged by agreement
between the parties which limits the principle of decision to
be adopted in the case ; Watts v. Boom Co., 47 Mich. 540. So,
too, jurisdiction once vested cannot be ousted by subsequent
events ; Etes v. Martin, 34 Ark. 410 ; Morgan v. Morgan, 2
Wheat. 290. And where a court has no jurisdiction, its judg-
ment or decree is not simply voidable but void, and may be col-

964 MOSTYN V. 1 A1{K1(;AS.

laterally impeached; Lamar v. Commissioners Court, 21 Ala.
772; Campbell v. MeCalian, 41 111. 4 'j ; Mersier v. Chase, 91
jNIass. 242 ; and its process then gives no protection to the otli-
cer of the court exccutinj^ it; DriscoU r. Place, 44 Vt. 252;
Allen V. Carey, 10 Wend. 349; Skilton v. Winslow, 4 CJray 441.
And it seems that when a court havinf;^ jurisdiction is properly
applied to, it must exercise it, from wliatevcr snurci' «»l)taint'd;
Cook V. Whipple, 55 N. Y. 15U. But, on the other hand, where
there is no jurisdiction, a court will not proceed with the mat-
ter, and should not even render an opinion, lu'causi- its judt;-
ment will be fruitless. A judicial judt^mcnt is the product of
the power of the law. If the law do not confer the power, it
is a nullity ; Smith v. Myers, 109 Ind. 1 ; Robertson v. State,
Id. 79. Thus, for instance, a member of the bar cannot be
given jurisdiction of a cause by consent, and a court will not
even entertain an appeal from his decision; Iloagland v.
Creed, 81 111. 500. Finally, distinction nuist be made between
limitation of jurisdiction and iiifciiority of jurisdiction. Every
court is subject to some limitation, territorial or otherwise.
But courts of limited jurisdiction are not necessarily inferior
in the sense that there is no ])resumption of jurisdiction when
their judgments are assailed collaterally ; People v. Bradner,
107 N. Y. 1.

Transitory Actions.

1 . Independently of statute law. — Transitory actions are
those in which the transaction is one that might have occurred
at any place; local actions are those in whicli the transaction is
necessarily local. This distinction is technical, but too well
established to be disregarded ; Livingston v. Jefferson, 1 lirock.
203. Personal actions whether v.r rontrartu or ex delicto are
transitory and may be brought anywhere, whatever the resi-
dence of the parties. In contemplation of law, the injury
arises anywhere and everywdiere. The right to recover rests
on the presumption that the common law prevails where the
cause of action arose, and that the plaintiff could have recovered
there ; Leonard v. Columbia Steam Co., 84 N. Y. 48. As soon
as one person becomes liable to another in such action, that
liability attaches to the person and follows him wherever he
goes. He cannot, by removing from one place to another,
discharge himself of that liabilitv : Stout v. Wood. 1 Blackf. 70 ;

MOSTYN V. FABKIGAS. 965

Smith V. Bull, 17 Wend. 323 ; Hale v. Lawrence, 1 Zab. 714 ;
Curtis V. Bradford, 33 Wise. 190 ; Peabody v. Hamilton, 106
Mass. 217, and cases there cited. Such actions include slander,
Boynton v. Boynton, 43 How. Pr. 380; negligence, Central R.
R. Co. V. Swint, 73 Ga. 651 ; Atkinson v. Erie Railway Co., 2
Vroom 309 ; assault and battery, Watts v. Thomas, 2 Bibb. 458 ;
NcAvman v. Goddard, 3 Hun 70 ; trover, Robinson v. Arm-
strong, 34 Me. 145; case for assisting plaintiff's slave to escape.
Northern R. R. Co. v. Schell, 16 Md. 331 ; fraud, Johnson v.
Whitman, 10 Abb. Pr. N. S. Ill ; enticing away plaintiff's
wife, Burdick v. Freeman, 46 Hun 138. As to that species of
property which has no habitat^ such as debts or choses in action,
jurisdiction of the person must include jurisdiction of the thing ;
Keyser v. Rice, 47 Md. 203. An action lies for illegal collec-
tion of a tax in another state ; Henry v. Sargent, 13 N. H.
321. An action will be maintained by one non-resident against
another to subject to the payment of a debt the shares of a
domestic corporation ; Quarl v. Abbott, 102 Ind. 233. In Bar-
ton V. Barbour, 104 U. S. 126, it was held that a receiver can-
not be sued even at law, in the courts of one state for the
personal wrongs of his agents, when he is in possession of and
managing property administered by the court of his appoint-
ment, in another state. But it was decided otherwise in
Allen V. Central R. R. Co., 42 Iowa 683, and in Kennc}^ v.
Crocker, 18 Wise. 74, where it was held that the action would
lie without leave of court even though the receiver had been
appointed by the Federal court. The courts will not enforce
the internal revenue laws of another Jiation ; McFee v. South
Car. Ins. Co., 2 McCord 503. And qucere, if a court will
entertain an action for injury resulting from the defective
condition of a highwa}^ in another state, the matter intimately
concerning the internal police regulations of that state ; Hunt
V. Pownal, 9 Vt. 411 ; and see Molony v. Dows, 8 Abb. Pr.
316, where the court declined jurisdiction of an action for
injuries done by a vigilance committee in another state ; and
see Pickering v. Fish, 6 Vt. 102. But where all the parties are
non-residents and the cause of action arose out of the state, al-
though the court does have jurisdiction, its exercise is a matter
of sound discretion, and it should not be exerci;:;ed unless spe-
cial causes are shown to exist ; Burdick v. Freeman, 46 Hun
(N. Y.) 138. The fact, however, that there is fear of the defend-

966 MOSTYN V. FABUIGA8.

ant's influencincr a jury in his state is not a reason recognized
for retaining jurisdiction. And it should Ije declined if de-
fendant is only casually here ; DeWitt v. Buchanan, 54 Barb.
31. Jurisdiction in such cases rests on comity and will be de-
clined where a statutory tort (putting off defendant from cars
between stations) has been committed outside of the United
States, both parties being aliens ; Great Westei-n U. Co. v.
Miller, 19 Mich. 305. So, too, the cognizance oi wrongs on
the high seas, both parties and the vessel being foreign, is not
a matter of right but of discretion, and it ought not to be ex-
ercised where, for aught that appears, both parties intend to re-
turn immediately to their own country ; Gardner v. Thomas
14 Johns. 134. Such an action, however, by a discharged sea-
man, or one leaving without the mate's objection, should be
entertained ; Johnson v. Dalton, 1 Cow. 543. And on the
other hand, a stipulation by a seaman not to sue except in his
own country ought to be observed unless the voyage is ended;
Olzen V. Schierenberg, 3 Daly 100. The objection to entertain-
ing jurisdiction in cases where it is a matter of discretion,
should be taken by motion ; I)e Witt v. Buchanan, 54 Barb.
31. A mere request to the court to charge the juiy that ac-
tion is not maintainable held insufficient ; Burdiek v. Freeman,
46 Hun 138.

Where all the facts transpired, while })oth parties were resi-
dents of another state, the rights must be determined accord-
ing to the law of that state ; Sal tee v. Chandler, 26 Mo. 124 ;
R. R. Co. V. Kanaley, 17 Pac. Rep. (Kans.) 327. On the other
hand, where in an action of slander for words not actionable at
common law, but made so by the statute of the forum, it will
not be presumed that a similar statute exists in the state where
the words were spoken, and the action will not be entertained ;
Stout V. Wood, 1 Blackf. 70. But although a cause of action be
assigned in a state where such assignment is void, the assignee
will be recognized in the forum of the state where the cause
of action arose, if in such state such an assignment would be
valid; Vimont v. 11. R., &c., Co., 69 Iowa 296. Provisional reme-
dies follow the law of the forum. So that in an action between
non-residents, defendant can be arrested for fraud in contract-
ing a debt, although he could not, in the state where it was
contracted, and although the whole transaction took place out-
side of the state ; Johnson v. Whitman, 10 Abb. Pr. N. S. 111.

MOSTYN V. FABRIGAS. 967

A foreign creditor may have against a foreign debtor, tempo-
rarily in the state, all the remedies afforded by its court even
though harsher than the remedies of the place where the con-
tract was made ; Sicard v. Whale, 11 Johns. 194 ; Peck v. Hozier,
14 Johns. 346. The pendency of an action in one state is no
bar to an action between the same parties and with the same
subject-matter in another. A judgment in one state does not
merge the cause of action so as to oust jurisdiction in other
states ; Davis v. Morriss Executors, 76 Va. 21.

Transitory Actions. As affected by Statute Law.

A remedy given by a statute of another state, for wrong
done there, will be enforced in the courts of any other state
whose public policy is not opposed thereto. Thus, where a
person is killed by the negligence of a defendant in any state
where the statute gives the personal representative the right
to recover damages, either generally for the benefit of the
estate, or specially for the benefit of the widow and next of kin,
or otherwise, recovery can be had in any other state, where the
personal representative, properly qualified, applies for relief ;
Leonard v. Navigation Co., 84 N. Y. 48 ; Dennick v. R. R. Co.,
103 U. S. 11 ; Morris v. R. R. Co., 65 Iowa 727. The contrary
doctrine, where the foreign statute does not declare the rem-
edy to be for the benefit of the estate generally, is held in cer-
tain jurisdictions on the ground that this remedy, given to the
personal representatives as trustees of a right of property in
the widow and next of kin, is not of such a nature that it can
be imparted to a foreign administrator virtute officii., so as to
give him a right to sue in the courts of the state where ap-
pointed, and to transmit the rights of action from one person to
another in connection with the representation of the deceased.

" A succession in the right of action not existing by the
common law cannot be prescribed by the laws of one state to
the tribunals of another ; " Richardson v. R. R. Co., 98 Mass.
85 ; Taylor v. R. R. Co., 78 Ky. 348. So, too, such relief was
denied on the ground that the administrator is not appointed
to represent the interest for whose benefit the foreign statute
gives the remedy ; Mackay v. R. R. Co., 14 Blatch. Qb ; Wood-
ard V. R. R. Co., 10 Ohio St. 121 ace, because the statute es-
tablishes a special trust. Semhle aliter, if an administrator

968 MOSTYN V. FA 15 RIG AS.

appointed in the state where the injury occurred sues here to
recover the funds for distribution in the state of appointment.
But the former seems to be the sounder doctrine. The court
of tlie forum can compel proper distribution as well as the
foreign court. The administrator often receives property which
must go direct to the next of kin or legatees and not to tlie
ceneral estate. The statute could have limited the ritdit if
that had been the intention, -It is dillicult to understand
how the nature of the remedy or the jurisdiction of the courts
to enforce it is in any manner dependent on the question
whether it is a statutory or a common law right ; " Jus-
tice Miller, in Dennick v. R. R. Co., 108 U. S. 11. On the
other hand, although actions for personal injuries committed
abroad are sustained in the first instance, witliout proof of the
lex loci, this presumption does not apply where the wrong com-
plained of is one for which redress can only be given by stat-
ute ; Mtd)()nald v. Malory, 77 N. Y. 540. So that if defend-
ant's wrong causes deatli in a state where there is no statute
giving a remedy, the fact that there is such a statute in the
state of the forum gives no cause of action: Hyde r. Wabash
Co., 01 Iowa 441 ; Needham v. R. R. Co., 38 Vt. 204. Even
though both parties are citizens of the state of the forum, and
the negligence causing the death was a breach of contract en-
tered into in such state. If the wrong is not actionable where
it was committed, it would be contrary to all reason that it
should be made so, by invoking redress in another state ; State
V. R. R. Co., 45 Md. 41. Such statutes have no extra-territorial
effect and it cannot be presumed with respect to positive stat-
ute law, that the laws of other states are similar to those of
the forum ; Debevoise v. R. R. Co., 98 N. Y. 377.

A liability in the nature of a penalty imposed by statute
will be enforced only by the courts of the state which enacted
it ; National Bank v. Price, 33 Md. 498. As, for instance,
where a statute makes the directors of a company liable for its
debts, in consequence of certain derelictions of duty. It is not
like the contractual obligation of stockholders, Corning v.
McCullough, 1 Comst. 47 ; or the charter obligation of incor-
porators, and this liability of directors is not to be construed
as arising out of a contract, implied from the acceptance of
the charter ; Bird v. Hayden, 1 Robertson 383 ; Derrickson v.
Smith, 3 Dutcher 166. Foreign statutes are respected and

MOSTYN V. FABRIGAS. 969

enforced beyond the territory in which they are enacted only
as a matter of comity and public policy, and foreign courts will
not enforce such as impose, by way of penalty, on stockholders
or directors, liability for corporate debts ; Halsey v. McLean,
12 Allen 438. The same doctrine applies to usury laws ; Gale
V. Eastman, 7 Mete. 14. And to statutes imposing double
damages on railroad companies for injury to property, in
running their trains ; Bettys v. R. R. Co., 37 Wise. 326. Sem-
hle contra^ Boyce v. R. R. Co., 63 Iowa 70, in which case, how-
ever, it is to be noted that a similar statute existed in the court
of the forum, making the "-policy" the same in both states.
So, too, a penalty imposed by act of Congress upon a national
bank will not be enforced by a state court, although Congress
expressly authorizes it so to do ; Missouri Tel. Co. v. National
Bank, 74 111. 217. Sed eo7itra, National Bank v. Overman, 22
Neb. 116, and cases cited. And a statute making a witness
convicted of an infamous offence, incompetent to testify, has
no extra-territorial effect; Commonwealth v. Green, 17 Mass.
515. On the other hand, though foreign penal statutes will
not be enforced, yet where, e.g., as in statutes relating to gam-
bling, they create a debt, the cause of action for the debt be-
comes transitory ; Flanagan v. Packard, 41 Vt. 561.

A legislature cannot create personal liabilities on account of
transactions occurring beyond its territory, and give them a
character which they do not have at the place of their occur-
rence ; Steamboat v. Stunt, 10 Ohio St. 582 ; Le Forest v. Tol-
man, 117 Mass. 109; Stout v. Wood, 1 Blackf. 70. Comity
does not require a court to sacrifice the rights of its own citi-
zen to protect a plaintiff against the consequences of his own
acts under statute and municipal regulations of other states ;
Woodward v. Roane, 23 Ark. 523. An official bond given in
another state, and by statute, enforceable only in a particular
way and by a particular officer as often as necessary, for the
benefit of any relator, can be enforced, in that way, only by the
courts of such state ; Pickering v. Fish, 6 Vt. 102. A vessel
registered at a port of the state is within its territory, even
while on the high seas, in the sense that an assignment by the
Insolvency Court passes title as against subsequent transfers or
proceedings in rem; Crapo v. Kelly, 16 Wall. 610. A court
will enjoin one citizen at the prayer of another, from prosecut-
ing an attachment in another state, to subject to the j^ayment

970 MOSTVN V. KAHllIGAS.

of a debt, earnings exempt by the law of the state, of which the
parties are residents; Snook v. Snetzer, 2') C)liio St. olO.

TranHitory Actions, quasi Local.

a. At law. — It is a jjeneral rule that actions iuvolvinjj the
ownership or possession of lands are hx-al. And courts will
not take juiisdiction of such actions affecting lands outside of
their territory, even to prevent a failure of justice or l)ecause
the remedy of the forum is less difheult or doubtful; Living-
ston V. Jefferson, 1 liroek, 203. Actions of trespaxa quare
clauHum froi/it are local; De Courcy v. Stewart, 20 Hun 501.
Even though the trespass be followed by asportation of chattels;
Dodge V. Colby, 37 Ilun 515. But it seems that if the action
were simply for conversion of jtroperty so carried away, thus
waiving the original trespass, action would become transitory ;
American Co. v. Middleton, 80 N. Y. 408 ; Newman v. Goddard,
3 linn 70 ; Whiddcn v. Sealey, 40 Me. 247. Hut defendant to
oust the jurisdiction nnist i)rove the property to be realty.
It must api)ear affirmatively that plaintiff owns the soil ; Rogers
V. Woodbridge, 15 Pick. 14<». And where the gravamen of the
action is negligence, as for negligently setting fire to plain-
tiff's house. Home Ins. Co. v. II. II. Co., 11 Hun 182, or for
negligently shipping explosives resulting in injury to real
property, Barney v. Burstenbindcr, 7 Laus. 210, the action is
transitor}-. So, too, actions for diverting water are local;
Watts V. Kinney, 23 Wend. 4S4. Although it seems tliat
Chancery, in some cases, has taken jurisdiction to prevent hai'd-
ship. And seinhle contra,, if action is brought in the state where
the diverting is done, even though the lands injured are in
another state ; Manville Co. v. Worcester, 138 jVIass. 89. Ao
tions for wrongfully overflowing plaintiff's land are local,
Eachus V. R. R., 17 111. 434, and cannot be entertained where
the wrong was done, if the injury be to lands in another state ;
Wooster v. Lake Co., 25 N. H. 525. Actions for waste are
local; Cragin v. Lovell, 88 N. Y. 258. And a nuisance on
lands in one state, injuring lands in another, is actionable in the
latter; Ruckman v. Green, 9 Hun 225. Actions for breafh of
convenants affecting real property and de^^ending upon privity
of estate are local; Lewis v. Ellis, 6 Mass. 331; Clark v. Scud-
der, 6 Gray 132; White v. Sanborn, 6 N. H. 220. But so long

MOSTYN V. FABRIGAS. 971

as the recovery does not affect the real property, and does not
depend on privity of estate, actions are not local, even though
real property be the subject-matter. Therefore, actions for use
and occupation, Henwood v. Cheeseman, 3 Serg. & R. 500, and
for damages for breach of covenant to convey, Mott v. Codding-
ton, 1 Robertson 267, are transitory ; see Bethell v. Bethell, 92
Ind. 318. And in an action on a bond given for the price of
land in another state, the court has jurisdiction to determine
the question of title. The principal draws after it all incidents ;
Clark v. Mclntyre, Add. 235.

b. In equity. — The same rule as to local actions is followed
in a court of equity. Its decree cannot bind foreign lands.
But it can bind the conscience of the defendant with respect to
the land, and therefore having jurisdiction of the person it will
proceed in all cases of fraud, trust or contract, even though its
decree affect land outside of the territory; De Klyn v. Wat-
kins, 3 Sandf. Ch. 185; Vaughn v. Barclay, 6 Whart. 392.
Thus courts of equity have jurisdiction to compel a conveyance
by defendant of land in a foreign state ; Gardner v. Ogden, 22
N. Y. 327 ; Farley v. Shippen, 1 Wythe 254. But no convey-
ance except by the party holding the actual title can be effec-
tive. A court cannot by its judgment or decree pass the title
to land situate in another country ; Watkins v. Holman, 16 Pet.
25. No statute or decree of another state, without the actual
conveyance according to the law of the situs, can affect the
title itself ; West v. Fitz, 109 111. 442. In default of convey-
ance by the owner, the court cannot transfer title by the deed
of its own officers, e.g., by a guardian ad litem for infants ; Page
V. McKee, 3 Bush 136. And courts will not establish a trust
affecting lands in another state, Servis v. Nelson, 1 McCart.
94 ; nor compel a testamentary trustee with power under a will
to sell lands in another state to exercise such power. Blunt v.
Blunt, 1 Hawks 365. But courts will enforce specific per-
formance of a contract relating to foreign lands, Newton v.
Bronson, 13 N. Y. 587; Olney v. Eaton, 66 Mo. 664; even
though where the contract to be performed within the territory
of the court is made outside by non-residents, Baldwin v. Tal-
madge, 39 Super. Ct. (N. Y.) 400, and cases cited ; and even
though the only defendant who has an interest in the land is
without the jurisdiction, by compelling delivery of an executed
deed in the possession of the vendor's agent. Ward v. Arre-

972 MOSTYN V. FABKKiAS.

doiulo, Hopkins 213 ; Sliattuck v. Cassidy, 3 Edw. lo2. But a
court cannot annul the conveyance of land situate in another
state. The state of the situs could disregard such a decree.
While a court can compel those before it to release their claims,
it cannot assume that the rights of hoyid fide purchasers have
not intervened; Cooley v. Scarlett, 38 111. 31G ; Davis v. Head-
ley, 7 C. E. Green 115. The title to immovable property can
only be affected in the mode recognized by the laws of the
state Avithin whose territory it is situated. If it could be, by
mere decisions of the courts of other states, registry laws would
be of no avail ; City Ins. Co. v. Commercial Bank, 68 111. 348.
But it was decided, in Guerrant v. Fowler, 1 lien, ik, ]Mun. 5,
that a court has jurisdiction to decree cancellation of a deed
obtained within its jurisdiction by fi-aud. Courts of equity
can state an account between owners of an island in a for-
eign country. The decree would be in personam not in rem ;
Wood V. Warner, 2 McCart. 81. A court of equity will not
enforce a trust created by statute of another state relating to
land in that state, a bond to a court of that state being required
by such statute, for the proper performance of the trust ; Alger
V. Alger, 31 Ilun 471. Courts of equity, at the re([uest of one
railroad claiming the exclusive right, will not take jurisdiction
of a bill to enjoin another from building its road in a territory
outside of the state ; Northern Indiana R. K. Co. v. Northern
Central R. R. Co., 15 How. 233. But it was decided in Alex-
ander V. ToUeston Club, 110 111. 65, that a court has jurisdic-
tion to restrain defendant from interfering with a right of Avay
in a foreign state. Courts cannot compel a sale of land situ-
ated in another state or appropriation of proceeds to pay com-
plainant's mortgage ; Tiffany v. Crawford, 1 McCart. 278. But
a strict foreclosure of a mortofafje on lands in another state will
be granted; House v. Lockwood, 40 Hun 532. And where
tAvo or more corporations of different states are consolidated, a
court of either of the states in foreclosinsr a mortCTagfe on the
consolidated property has jurisdiction in one suit to sell all the
property in all the states. Separate suits are unnecessary ;
Blackburn v. Selma, &c. R. R. Co., 2 Flip. C. Ct. 525 ; Mead v.
New York, &c. R. R. Co., 45 Conn. 199. Courts have power to
declare void a mortgage on foreign lands, and to decree sur-
render of same ; Williams v. Fitzhugh, 37 N. Y. 444. Also to
compel a judgment debtor to execute a deed of foreign lands

MOSTYN V. FABRIGAS. 973

for the benefit of his creditors ; Bailey v. Ryder, 10 N. Y. 363.
But they have no jurisdiction to restrain a nuisance affecting
foreign lands ; Morris v. Remington, 1 Pars. Eq. 386. A fraud-
ulent conspiracy in another state to deprive plaintiff of title to
lands in such state is transitory, so far as his right to damages
and an account of rents is concerned; Mussina v. Belden, 6
Abb. Pr. 165. So, too, suits for partition of real property are
local, although a court in one state, may, it seems, entertain
jurisdiction, where lands are situated in that and another state,
if it be possible to allot complainant's share from the lands in
the state of the forum ; Gates v. Woodrow, 2 Dana 457. Courts
of the state where the land is situated will not recognize title
made by the court of another state, in a decree of partition ;
Johnson v. Kimbro, 3 Head 557 ; White v. White, 7 Gill & J.
208. A stipulation between parties agreeing to partition in
one state of lands, in another gives jurisdiction, and an injunc-
tion of partition proceedings in the other state will be granted ;
Bowers v. Durant, 43 Hun 348.

Foreign Corporations.

Independently of statute, a foreign corporation cannot be
sued in invitum, even though some of its stockholders reside
in the state, and service is made there on the secretary while
temporarily present ; Middlebrook v. Springfield Ins. Co., 14
Conn, 306. And although a statute provide generally for
service on a corporation by service on one of its officers, such
service if made on an officer of a foreign corporation does
not give the court jurisdiction. Service must be made in
the state of its creation ; Sullivan v. La Crosse Co., 10 Minn.
386. But a state may, in permitting a foreign corporation
to transact business, impose as a condition that the corpo-
ration shall accept as sufficient the service of process on its
agents, and such condition may be implied as well as expressed ;
St. Clair v. Cox, 106 U. S. 350, 356. The agent or officer must
be in the state in a representative or official capacity, and not
as a mere "casual individual"; at all events, in actions by non-
residents on causes of actions arising outside of the state ;
Newell V. R. R. Co., 19 Mich. 336. Where a foreign corporation
is practically a domestic one, i.e., has an office and transacts
business in the state, it may be sued like a domestic corporation
on transactions occurrinp- in such state ; Bawkright v. Ins. Co.,

974 MOSTYN V. FAHUIGAS.

55 Ga. 194. But a railroad company incorporated in one state,
tlioiisfh runnin<r its trains into another, is not liable there to
passengers injured in the former state ; R. K. Co. i\ Carr,
76 Ala. 388. No action can he maintained against a foreign
corporation unless the contract sued on was made or the
injury complained of was suffered within the state ; liawkright
V. Ins. Co., 55 Ga. 194 ; Brooks ik Mexican Co., 50 Suj)er. Ct.
(N. Y.) 281 ; Parke v. Ins. Co., 44 Pa. St. 422. And it seems
that under the New York code a resident may recover against
a foreign corporation for any cause of action wherever it
arise, and although property beyond the jurisdiction may be
affected, or the relief within the power of the forum Id grant
incomplete; Ervin v. Oregon Co., 62 How. Pr. 490, and cases
there cited. One foreign corporation may sue another for
wrongful transfer of stock made in the state of the forum;
Toronto Co. v. Chicago Co., 32 liun 190. But a non-resident
cannot sue a foreign corporation to compel specific performance
of a contract to convey lands outside of the state ; Hann v.
Barnegat Co., 7 Civ. Proc. (N. Y.) 222. When two corpo-
rations created in different sovereignties consolidate, the one
state cannot with its legislation follow the consolidated cor-
poration into the (Hher ; R. R. Co. v. Auditor General, 53
Mich. 79. And a court of one state cannot compel a corpo-
ration chartered in that and another state to go into the latter
to perform a duty in the matter of right of way. It would
seem to be otherwise if the act could be performed in the
state of the forum, even though that act affected land outside
of sucli state ; R. R. Co. v. Hammond, 58 Ga. 523. Though
the charter of a corporation has expired, and a receiver has
been appointed in the state of its creation, comity does not
prevent the attachment by a corporation of another state of
lands in such state. The contracts of the corporation survive.
And the decree appointing the receiver cannot cover real
property in another state ; Ins. Co. v. Commercial Bank, 68
111. 348. Courts decline to exercise jurisdiction in cases in-
volving the internal affairs of foreign corporations, its officers,
books, and assets not being within their jurisdiction and con-
tempt proceedings impracticable. Therefore they will not
enforce an agreement to make apportionment of money to be
received by it; Fisher v. Ins. Co., 52 Super. Ct. (X. Y.) 179.
So, too, in a suit by a stockholder of a foreign corporation

MOSTYN V. FABRIGAS. 975

against it and another corporation to which it had leased its
property, seeking rehef rehiting to the transactions between
said corjDorations ; Gregory v. R. R. Co., 13 Stew. 39. Nor
will a court assist a non-resident to be reinstated in a forfeited
policy issued by a foreign life insurance corporation, although
it transact business and have a resident agent in the state.
The proceeding invoked, seeking to establish an artificial re-
lationship, affects the organic law of the corporation, which is
necessarily local and requires local administration ; Smith v.
Ins. Co., 14 Allen 336. Where a charter provides for stock-
holders' liability by levy on their property on execution against
the corporation, and for compelling ratable contribution by the
same process, there is no general liability of stockholders, so
that jurisdiction is limited to the state granting the charter ;
Lowry V. Inman, 46 N. Y. 119.

Illustrations under Federal Law.

Admiralty can take jurisdiction of maritime torts committed
beyond United States boundaries on foreign shijjs in actions be-
tween aliens ; Mason v. Ship Blaireau, 2 Cranch 240. Where a
state statute gives a right of action for causing death, and such
death is caused on the high seas by the tort of a vessel having its
home port in said state, admiralty will enforce the right in rem ;
The E. B. Ward, 17 Fed. R. 456 ; The Harrisburg, 119 U. S. 199
qucere. State courts have concurrent jurisdiction of causes of
action cognizable in admiralty, where only a common law remedy
is sought ; Bohannan v. Hammond, 42 Cal. 227 ; Schoonmaker
V. Gilmore, 102 U. S. 118. State courts cannot enforce a mari-
time lien nor can state legislatures create one. But they can
enact liens and provide for their enforcement in rem., where
they do not exist in admiralty ; e.g.., for supplies obtained in
the home port; Dever v. Steamboat, 42 Miss. 715. So, too,
rights growing out of a United States bankruptcy law may be
enforced in state courts in all proceedings not involving the
administration of the law itself; Goodrich v. Lincoln, 93 111.
359 ; Cook V. Whipple, 55 N. Y. 150 ; Stevens v. Bank, 101
Mass. 109 ; Hastings v. Fowler, 2 Carter 216 ; Brown v. Hall,
7 Bush m ; Gage v. Dow, 58 N. H. 420. But Brigham v. Claf-
lin, 31 Wise. 607, contra., on the ground that the act making
certain transfers void is penal, and should not, therefore, be
enforced in state courts. State courts have jurisdiction to

976 MOSTYN V. rAIUlKiAS.

enforce a penalty ap^ainst a national bank. If exclusive juris-
diction be not given to the Federal courts, either expressly or
by necessary implication, the state courts may act. Congress
cannot compel them to act. It simply confers authority; First
National Bank v. Overman, 22 Neb. 116, and cases there cited.
Property in the hands of a United States marshal, seized under
process duly issued, cannot be interfered with either by injunc-
tion or replevin issued out of a state court ; Freeman v. Howe,
24 How. 450. If the Federal process be valid, the question of
title is irrelevant in the state court ; Fensier v. Lammon, 6
Nev. 209. And the same rule a})plies to Itahcas vorjms ; Ex
parte Holman, 28 Iowa 88. But contni, (iilnian v. Williams,
7 Wise. 329, to the effect that property unlawfully taken is not
Avithin the custody of the law. See, also, Borth i\ Ableman, 16
Wise. 460, deciding that the state court has jurisdiction to
return to the marshal property unlawfully replevied from him.
But where the amount involved is so small that the claimant
cannot proceed for relief in the Federal courts, replevin from
the state court will lie against the marshal ; Carew v. Matthews,
41 Mich. 576. And an exception occurs where consent has
been obtained from the Federal courts to proceed against the
marshal for the recovery of the property in an action clearly
identified; Smith v. Bauer, 12 Pac. Rep. (Col.) 397. And the
above doctrine docs not prevent actions only for damages, for
the wrongful taking and detention ; Chapin v. James, 11 R. I.
86; Stoughton v. Mott, 13 Vt. 175. A state legislature has no
power to abdicate its jurisdiction over places within its limits,
except where title has been acquired by the United States, and
even then the jurisdiction to punish crime continues until Con-
gress by further act has extinguished the state authority and
vested exclusive jurisdiction in the Federal courts ; In re
O'Connor, 37 Wise. 379 ; Marion v. State, 20 Neb. 233 ; Foley
V. Shriver, 81 Va. 568.

Actions affecting Estates of Decedents.

As a general rule a suit cannot be maintained against an
executor, except in the country from which he derives his
authority. He is accountable there for proper distribution,
and it would be a hardship to require him to account else-
where. And domestic creditors can object to any transfer
of assets until their demands have been satisfied, Davis v.

MOSTYX V. FABEIGAS. 977

Morriss, 76 Va. 21 ; particularly where the will has not been
proved, as permitted by statute, in the state of the forum,
Van Giesen v. Banta, 13 Stew. 14 ; Cocks v. Varney, 42
N. J. Eq. 514. Where there are no assets in the foreign
forum, and the executor is not personally liable, Murphy v.
Hall, 38 Hun 528 ; or is not sued as an executor de son tort,
Campbell v. Tousey, 7 Cowen 64, that court has no jurisdiction,
Gray v. Ryle, 50 Super. Ct. (N. Y.) 198. But under special
circumstances, where it does not appear but that all creditors
are in the state of the forum, or that the local law is peculiar in
affecting such right of property, foreign courts may, in the
exercise of a sound judicial discretion, assume jurisdiction ;
Powell V. Stratton, 11 Gratt. 792 ; Moses v. Hart, 25 Gratt. 795.
Jurisdiction in equity against a foreign administrator is limited
to cases not simply where there are assets in the state, but
where these assets are being squandered, or to prevent breach
of trust and the like ; see Kanter v. Peyser, 51 Super. Ct.
(N. Y.) 441. On the other hand, courts of the state in which
the will is probated have jurisdiction to order parties coming
before them, either as proponents or witnesses to another will,
to turn over property belonging to the estate, held by them in
another state ; Dietz Case, 41 N. J. Eq. 284. A trust, though
relating exclusivel}^ to personal property, will not be enforced if
it arise under a will probated in a different state ; Campbell v.
Sheldon, 13 Pick. 8 ; Campbell v. Wallace, 10 Gray 162. In
the case of legacies charged on lands, the action may be brought
where the land is situated, even though the will is proved and
the executor resides in a different state ; Rennie v. Crombie,
1 Beas. 457. And it cannot be brought elsewhere, in a suit to
subject the land ; Williams v. Nichol, 47 Ark. But suits
brought to have legacies declared liens are transitory ; Lewis
V. Darling, 16 How. 1. The devisee of lands, situated in
another state, and charged with a legacy, can be sued anywhere,
on the implied assumpsit resulting from the acceptance of the
devise, although the testator resided and the defendant was
appointed executor, in the state of the situs ; Brown v. Knapp,
79 N. Y. 136. An ancillary administrator, who settles his
accounts showing a balance in his hands in the ancillary juris-
diction, is directly liable thereon to the principal administrator
in the jurisdiction of principal administration ; Garland v. Gar-
land, 12 Va. L. J. 398.

CREPPS r. DURDEN ET ALTOS.

TRINITY. - 17 (;i:n. 3, n. r.

[rkpoktkd cowr. (!40.]

A person can commit hut one ojf'ence on the same day, by '■'■ exercis-
ing his ordinary calliny on a iSunday" contrary to the statute
29 Car. %c.l.

And if a justice of peace proceed to convict him in more than one
penalty for the same day, it is an excess of jurisdiction for
which an action tvill lie, before the convictions are quashed (secus
now, as to the last point, hy the 11 iV 12 ]''ict. f. 44, ». 2) («).

This was an action of trespass bionght by the plaintiff
against the defendant, for breaking into liis liouse and talking
away his goods, and converting thoin to his own use ; to this
the general issue was pleaded, and the cause came on to be
tried at Westminster before Lord Mansjidd, at the sittings after
Easter term, 1777 ; when a verdii-t was foimd for the phiintiff,
for three several sums of five shillings eath, and costs 40«.,
subject to the opinion of the court upon the following ease: —
"That the plaintiff was convicted of st'lliiig small hot loaves

(a) See an analogous case, Brooks alty by express words for each and

and another v. Glencross, 2 M. & Rob. every oflence," Pollock, C. B., A.-G.

62; and see R. v. Eastern Counties v. McLean, 1 H. & C 750. One con-

Raihcay, 10 M. & W. 58. As to the viction for several curses on same

effect of two orders or convictions day with a cumulative penalty at the

for the same offence, see Wilkins v. rate of so mucli per curse held good,

Hemsicorth, 7 A. & E. 807 ; Wilkins v. R. v. Scott, 33 L. J. M. C. 15. Several

Wright, 3 Tyrw. 830, 2 C. & M. 193. convictions for selling pieces of bad

["The form which the legislature meat at same stall on same day held

uniformly adopts, when the intention good, in Re Hartley, 31 L. J. M. C.

is that for each and every violation 232. Ex parte Real, L. R. 3 Q. B.

of an act of parliament there shall be 387.]
a distinct penalty, is to impose a pen-

978

CREPPS V. DUKDEN ET ALIOS. 979

of bread, the same not being any work of charity, on the same
day (being Sunday) by four separate convictions, which were
as follows : ' Westminster to wit. Be it remembered, that on
the lOtli of November, 1776, Peter Crepps, of, &c., baker and
Salter of bread, is lawfully convicted before me, Jonathan
Durden, one of his Majesty's justices of the peace for the said
city and liberty of Westminster, for unlawfully doing and exer-
cising certain worldly labour, business, and work of his ordinary
calling of a baker in the parish aforesaid, by selling of small
hot loaves of bread, commonly called rolls, the same not being
any work of necessity or charity, on the said 10th of November,
being the Lord's day, commonly called Sunday, contrary to the
statute in that case made and provided ; for which offence I, the
said Jonathan Durden, have adjudged, and do hereby adjudge,
the said Peter Crepps to have forfeited the sum of five shillings.' "

The three other convictions were verbatim the same without
any variation. The case then proceeded to state, that the
defendant Durden issued the four warrants, afterwards stated,
to the other defendants who by virtue of those warrants levied
the four penalties of five shillings each, and the expenses. The
first of these four warrants ran thus : — " Westminster to ivit.
To the constables of St James's, in the city and liberty of West-
minster. Whereas information has been made before me,
Jonathan Durden, one of his Majesty's justices of the peace
for the city and liberty of Westminster, that Peter Crepps,
baker, of, &c., did on the 10th of November, 1776, being the
Lord's day, commonly called Sunday, exercise his trade and
ordinary calling of a baker, by selling hot loaves of bread, con-
trary to the statute in that case made and provided; and
whereas the said Peter Crepps has been duly summoned to
appear before me, to answer to the said information, but has
contemptuously refused to appear to answer the contents
thereof; and whereas, upon full examination, and upon the
oath of J. H., the said Peter Crepps was lawfully convicted
before me of the offence aforesaid, whereby he has incurred the
penalty of five shillings, pursuant to the statute in that case
made and provided; therefore, &c. &c." The words of the
other three warrants were verbatim the same.

The first question reserved was, whether in this action, and
before the convictions were quashed, an objection could be
made to their legality ? if an objection could be made, then a

980 CREPPS V. DUUDEN KT ALIOS.

nonsuit was to he cnturcd. Hut in case an objection to their
k'j^ality might be made, then the question was, whether the
levy under tlie three hist warrants could })e justilied? If not
justifiable, a verdict was to be entered for the plaintiff, with
15s. damages and 40s. costs ; if justifiable, then a verdict was
to be entered for the defendants.

Mr. BuUer, for the plaintiff, as to the first point, insisted tliat
wherever a conviction is in itself clearly bad, it is open to tlie
party to take objection to it in an action against the justice ; and
it is no answer on his part to say, that the conviction is not
quashed, or in force ; because it is incumbent upon him to
show the regularity of his own proceedings. That there were
several cases to this purpose; and though they were decisions
at Nisi Prius, yet, as tliey were uniform in laying down the
same doctrine, they ouglit to have considerable weight in this
case. The first he should mention was Jfill v. Bateman^ 1 Str.
711 ; not for the princi[)al matter adjudged, but because it was
agreed on all hands, in that case, as a settled point, "that in
all actions against justices of peace, they must show the regu-
larity of their pro(!eedings." He added that he had a manu-
script note of the same case to tlie same purport. In a case of
Moult V. Jemiitu/s, coram Ut/re, C. .1., n{)on trespass and false
imprisonment against the defendant, and the general issue
pleaded, it a})peared that the plaintiff had been convicted of
swearing; and Ui/re said, if the nature of the oaths had not
been specified in the conviction, so that they might appear to
the court, the conviction would have been void. In Stanhury
v. Bolt^ coram Fortisque, J., Trin. 11 G. 1, upon trespass for
taking a brass pan, and false imprisonment, it did not appear
that the plaintiff had been summoned ; and the conviction was
adjiulged void for that reason only. In Coles's Case, Sir
William Jones, 170, it was held by the whole court, " that if a
justice does not pursue the form ^^'escribed by the statute, the
party need not bring error, but all is void, and coram non
judice^ There are other authorities in which it has been held,
that an action will lie, even though the conviction is good in
point of form, if it is not supported by the truth and justice of
the case. There was one in Shropshire, before G-ould, J., where
the plaintiff had been convicted upon the game laws, and the
conviction itself was good in point of form ; but the party was
not, in truth, an object of the game laws ; whereupon Crould

CREPPS V. DUKUEX ET ALIOS. 981

directed the jury to find for the plaintiif, which they accord-
ingly did. There was another case in Lancashire,, before Mr.
Justice Gould, to the same effect. In criminal cases, it is clear,
that the conviction being good in point of form is no protection
to the justice ; and, if not, why should it be so in a civil action ?
If he convict illegally, he ought not to be sheltered, and an
action is the only mode of redress to the party injured. But,
if the formality of the conviction is to be an answer to the
action, the party injured would be without redress, where he
would be most entitled to it ; because the caution of the justice,
to be correct in form, would increase in proportion to his inten-
tion to act illegally. In Bruckleshury v. Smith, 2 Burr. 656,
every act previous to the conviction is set out, as well as the
conviction itself. If this case had happened before the stat. 7
Jac. 1, c. 5, which enables justices of peace to plead the
general issue, and give the special matter in evidence, the de-
fendant must have specially set forth every stage of the pro-
ceedings upon the record, and the omission of any one fact
would have been fatal : or, if upon the face of the record it had
appeared the conviction was illegal, it would have been a good
cause of demurrer. Since the statute, his defence must be
equally good in evidence : for the statute does not vary the law ;
it is only meant to ease the justice from the difficulty and risk
of special pleading. Even in cases where the legislature gives
a summary form of conviction, and where no summons is neces-
sary, the justices must pursue the form prescribed, or it will be
fatal. Secondly, upon the merits : the Avords of the stat. 29
Car. 2, c. 7, are, "that no tradesman or other person shall do or
exercise any worldly labour, business, or work of their ordinary
calling on the Lord's day, works of necessity and charity only
excepted." In Hex v. Cox, 2 Burr. 786, the court held, " that
baking puddings and pies was within the exception : " and, if
so, why should not the baking rolls be so too ? But what is
decisive is, that the stat. 29 Car. 2, c. 7, gives no summary form
of conviction ; whereas the convictions produced barely state
that the plaintiff was convicted, without any information, sum-
mons, appearance, or evidence being stated. In point of form,
therefore, all four are bad. Lastly, supposing they were good
in form, the three last are an excess of the justice's jurisdic-
tion ; for the offence created by the statute is, '' exercising his
calling on the Lord's day." If the plaintiff, therefore, had con-

982 CKEPl'S V. 1)L KDEN KT ALIOS.

tinned iKikinf]^ from morninpf till nicrht, it wonld still he bnt one
otlence. Here there are fonr eonvietions for one and the same
offence; consequently, as to three, there is an excess of jurisdic-
tion ; and if so, all is void, and coram non jmlice : and an action
will lie, not oidy against the justice, but likewise against the
officers. To this point he cited Ilardres, 484, and concluded
by praying judgment for the plaintiff.

Mr. T. Coivper, contra, for the defendant, contended, 1. That
by the bare production of the conviction at the trial the cause
was at an end, and the Court estopped from any further iii(|uiiy.
That it was the general a[)preliension and prevailing opinion of
the profession, founded in eonstant practiee, that a eonviction
in a matter of which the justice had jurisdiction, must be re-
moved by certiorari and (plashed, before it can be (juestioned
at JVisi Prius. If he has no jurisdiction, no doubt but all is
coram nan jud ice and void. l>nt here the justice had jurisdic-
tion ; and if so, with deference to the opinion of Mr. Justice
Gould, in the case tried before him in Shropshire, the convic-
tion, as to the matter of fact contained in it, is conclusive in
favour of the justice in an action, though it is not so in an infor-
mation. If it were not, instead of the mischief to be appre-
hended from the oppression of the justice, no one would act in
the commission. 2. As to the objections which have been
taken to the convictions in point of form, he said, it would be
time enough to answer them when the convictions were re-
moved and stood in the i)aper for argument. At present it
was suflicient to observe that they continued as so many judg-
ments on record, and, as such, conclusive, till reversed by
appeal, or quashed by this court. He agreed the stat. 7 Jac. 1,
c. 5, did not vary the law ; but insisted, that before that statute,
it would have been a good plea for the defendant to have
stated that the plaintiff was convicted, &c., as in this case ;
and if the plaintiff had traversed the conviction, the defendant
might have demurred. The sole ground and object of taking
away the certiorari in the several acts of parliament for that
purpose, was to prevent vexatious suits against justices for
mere informalities in their proceedings. But they still remain
liable to an information if they wilfully act wrong. This Court
has often lamented, when obliged to quash a conviction for
want of form, because it opens a door to an action.

As to this being but one continued offence, it might be, that

CEEPPS V. DUEDEN ET ALIOS. 983

'it was carried on at four different places; for there is evidence
of four different acts, and the Court will not presume the con-
trary against the justice. But, if the nature of the offence is
such, that it could only be committed once in the same day,
still the plaintiff has no remedy, while the convictions are in
force, but by removing them into this court to be quashed for
illegality.

Lord Mansfield. — May there not be this point, that the
justice had no jurisdiction, after convicting the plaintiff in the
first penalty ? The act of parliament gives authority to punish
a man for exercising his ordinary calling on Sunday. The
justice exercises his jurisdiction, by convicting him in the
penalty for so doing. But then, he has proceeded to convict
him for three other offences in the same day.

Mr. Coivper. — If he has done so, it is only a ground for
quashing the convictions ; but no priority appears to give
legality to one in preference to the other.

Lord Mansfield. — This point you agree in ; that if the jus-
tice had no jurisdiction, it is open to inquiry in an action.
Now, if there are four convictions, for one and the same
offence committed on one and the same day, three of them
must necessarily be bad ; and, if so, it does not signify as to
the merits of the action which of the four is legal, or which
illegal.

I do not remember that at the trial it was contended the
plaintiff would be entitled to recover if the convictions were
informal ; or that any objection was taken to their formality
there. The single question intended to be tried was, whether
there could be more than one penalty incurred for exercising a
man's ordinary calling on one and the same Sunday ? As to
that there can be no doubt: the only doubt was, whether that
objection could be taken at the trial before the convictions were
quashed. In the extent in which the argument upon that
point has proceeded, it is a matter of considerable consequence;
and, as a general question, I should be glad to think of it.

Aston, J. — The Court will never grant an information unless
the conviction is quashed. Hex v. JTeber, 2 Str. 915. As to
the general question before the Court, suppose the justice were
to convict for a single offence, where no offence at all had been
committed, would not an action lie in that case '^ If it would,
why not in this, where there are four convictions for one and

9H4 (JIIKIM'S V. DlltDEN KT ALIOS.

the same oi'teiice/ It seems t<> me tliat llie luikin^ every roll
might as well have been eharged as a sejjarate ofteiu-e.

Cur. n<lr. rult.

Afterwards, oh Wednesday, June 18th in this term. Lord
Mdnxficlil^ after stating the ease at large, delivered the unani-
mous oi)inion of the Court as foUows : — Upon the trial of this
cause, no objeetion was made to the formality of the convic-
tions : I doubt whether they were read, and for this reason ;
because, by tlie state I have of tliem, they appear dill'erent
from the warrants ; for the convictions take no notice of any
summons (a), nor of any informations, nor of any evidence (A)
iij)on oatli given; though the warrants take notice of a sum-
mons, of the defendant's not appearing to that summons, of an
information laid, and evidence given upon oath. This objec-
tion would have gone to all the four cases e<pially, but at thi-
trial no objection whatever was made to the first conviction or
warrant, liut the objection made was this ; that, allowing the
first conviction and warrant to be good, the three others were
an excess of tin; jurisdietion of the justice, and beyond it; for
that on the true construction of the stat. 2l> Car. -, c. 7, there
can be but one offence, attended with one single penalty, on
the same day.

In answer to this it was objected, on the })art of the def^-nd-
ants, that no such objection could l)e taken to the convictions
till after they had been quashed in this couit ; and that if a
case were to be made with regard to that, it nmst be taken
upon the question, whether, according to the true construc-
tion and meaning of the act, the party could be guilty of
repeated offences on 0113 and the same day? Therefore, the
questions stated for the opinion of the court on the present
case are, first, " whether, in this action, and before the convic-
tions were quashed, an objection could be made to their legal-
ity? If the court should be of opinion no objection could be
made, then a nonsuit to l)e entered up ; but in case the objec-
tion might be made, then, "2ndly, whether the levy made under
the three last warrants could be justified?" The first question

(a) Nor that the defendant made {h) Sec R. v. Lovett, 7 T. R. 152 ;

default. See li. v. AUhu/tnu. 2 Str. /.'. v. Theed, 2 Str. 919; R. v. Smith,

678 ; R. V. Venables, lb. G30 ; R. v. 8 T. K. 588.
Stone, 1 East 649.

CKEPPS V. DURDEN ET ALIOS. 985

is, " whether any objection can be made to the legality of the
convictions before they were quashed." In order to see
Avhether it can, we will state the objection : it is this ; that
here are three convictions of a baker, for exercising his trade
on one and the same day ; he having been before convicted for
exercising his ordinary calling on that identical day. If the
act of parliament gives authority to levy but one penalty, there
is an end of the question, for there is no penalty at common
law. On the construction of the act of parliament, the offence
is " exercising his ordinary trade upon the Lord's day ; " and
that, without any fractions of a day, hours, or minutes. It is
but one entire offence, whether longer or shorter in point of
duration ; so, whether it consist of one, or a number of particu-
lar acts. The penalty incurred by this offence is five shillings.
There is no idea conveyed by the act itself, that, if a tailor
sews on the Lord's day, every stitch he takes is a separate
offence ; or, if a shoemaker or carpenter work for different cus-
tomers at different times on the same Sunday, that those are so
many separate and distinct offences. There can be but one
entire offence, on one and the same day ; and this is a much
stronger case than that which has been alluded to, of killing
more hares than one on the same day ; killing a single hare is
an offence ; but the killing ten more in the same day will not
multiply the offence, or the penalty imposed by the statute for
killing one. Here, repeated offences are not the object which
the legislature had in view in making the statute : but singly
to punish a man for exercising his ordinary trade and calling
on a Sunday. Upon this construction, the justice had no juris-
diction whatever in respect of the three last convictions. How
then can there be a doubt, but that the plaintiff might take this
objection at the trial? 2ndly. With regard to the form of the
defence, though the stat. 7 Jac. 1, c. 5, enables justices of peace
to plead the general issue, and give the special matter in evi-
dence ; in doing so, it only allows them to give that in evidence,
which they must before have pleaded ; and, therefore, they must
still justify. But what could the justification have been in this
case, if any had been attempted to be set up ? It could only
have been this : that, because the plaintiff had been convicted
of one offence on that day, therefore the justice had convicted
him in three other offences for the same act. By law that is
no justification: it is illegal on the face of it; and, therefore, as

986 rUKIM'S \. DUHDKN ET ALIoS.

was very ri^litly adinitted by the counsel for tlic defeiulaiil in
the aiounient, if put upon the record by way of jilea, Avould
liave been bad, and on dcnuirrer must have l)L'en so adjudj^cd.
Most clearl}', then, it was open to the phiintiff upon the general
issue, to take advantage of it at the trial. The (piestion d(»es
not turn upon niceties; upon a computation how many hours
distant the several bakings, happened ; or upon the fact of
which conviction was prior in jjoint of time ; or that for uncer-
tainty in that respect, they should all four be held bad: but it
goes upon the ground, that the offence itself can be committed
only once in the same day. We are, therefore, all clearly of
opinion, that if there was no jurisdiction in the justice, tlie
same might have appeared at the trial: of course, we are of
oi)inion that this objection might have been made, and that the
objection itself, in point of law, is well founded.
Per Cur. I*ostea to be delivered to the plaintiff.

[Si'n.iiXT to tlu> act for the i)roto(tion of justices, 11 & 12 Virt. c. 44, a
summary of which will presently he {jiven,] the rule is tlic sauie — wliether
the conviction appear on the face of it to be for an oHence not within the
miiiiistrate's juri.siliction — or to be for an oH'encc within the magistrate's
jurisdiction, but defective for want of the circumstances necessary to a
conviction for that ott'ence, Griffiths v. Harries, 2 M. & W. 335; see Lancaster
V. Greaces, 9 B. & C. G28 ; Murrjan v. Ihujhes, 2 T. K. 225; Fearnley v. Worth-
ington, 1 M. & G. 491; Hardy v. Ryle, 9 B. & C. G03; Groome v. Forrester, 5 M.
& S. 320; — or of a sufficiently specific statement of them, Neirjnan v. Karl
of Hardwicke, 8 A. & E. 127 ; R. v. Read, 9 A. & E. 619 ; for, as was observed
in Lancaster v. Greaves, though tlie conviction is conclusive upon matter of
fact, and, if the defendant mean to rely on matter of fact, he should make
his defence at the time, the rule is not so as to matter of law.

So if the conviction of two persons be joint for offences ex necessitate rei
several, it will be void, and (subject now to the act above mentioned) they
may sue in trespass if it be acted upon, Morgan v. Brown, 4 A. sSc E. 515. And
the rule is the same in the case of a single conviction of one person for two
distinct ofl'ences, Neicman v. Bendyshe, 10 A. & E. 11.

But " a conviction by a magistrate who has jurisdiction over the suljject-
matter is, if no defects appear on the face of it, conclusive evidence of the facts
stated in it," Brittain v. Kinnaird, 1 B. & B. 482; per Dallas, C. J. In that
case trespass was brought against justice for taking a boat; in their defence
they relied on a conviction which warranted them in doing so. The plaintiff
offered evidence to controvert the facts stated in the conviction, l)ut it was
held not to be admissible. Acco7-d. Basten v. Careic, 3 B. &C. G49; Faiccett
V. Fowles, 7 B. & C. 394; Gray v. Cookson, 16 East, 13 ; Loivther v. Earl Rad-
nor, 8 East, 113; Ashcroft v. Bourne, 3 B. & Ad. 684; R. v. Bolton, 1 Q. B. 66;
[Colonial Bank of Australasia v. Willan, L. R. 5 P. C 417 ; 43 L. J. P. C. 39 ;]

CEEPPS Y. DUEDEN ET ALIOS. 987

and the same attribute, viz., that of being conclusive evidence of the facts
stated tlierein, and properly tending thereto, seems to have been thought to
belong to every adjudication emanating from a competent tribunal, Aldridge v.
Haines, 2 B. & Ad. 395 ; and the cases cited by Coleridge arguendo ; [see also
the Whitlmrij-on-Severn Union Case, 4 E. & B. 321 ; De Cusse Brissac v. Rath-
hone, G H. & N. 301; Kemp v. Neville, 10 C. B. N. S. 549; 31 L. J. C. P. 163.
Ex parte Lamert, 33 L. J. Q. B. 69.]

Even when the conviction had been quashed it was provided by the 43 G. 3,
c. 141, that the party convicted, in an action against the justices, which was
required to be on the case, should only obtain two pence damages, besides
the amount of the penalty if levied, and no costs of suit, unless he expressly
averred malice and want of probable cause ; and that he should not recover
the amount of the penaltj' if the defendant proved him to have been guilty of
the ofl'ence of which he had been convicted, and that he had undergone no
greater punislnnent than was by law assigned thereto. And it was held under
this act that he must at the trial prove not merely his own innocence of tlie
oflence of which he was convicted, but also what took place before the
justice at the time of conviction, in order that it may appear whether there
was probable cause or no. Barley v. Bethune, 5 Taunt. 580. See Baylis v.
Strickland, 1 M. & Gr. 591.

But the Stat. 43 Geo. 3, c. 141, is now repealed by the 11 & 12 Vict. c. 44,
intituled, "An act to protect justices of the peace from vexatious actions
for acts done by tliem in the execution of their office," the first section of
wliich provides that every action to be brought against any justice after the
2nd of October, 1848, for any act done by him in the execution of his duty
as such justice, as to any matter within his jurisdiction, [see SommerviUe v.
Mirehouse, 1 B. & S. 652; Lawrenson v. Hill, 10 Irish C. L. R. 177; Gelen v.
Hall, 2 H. & N. 379,] shall be on the case, and tlie declaration shall allege the
act to have been done maliciously and without reasonable and probable cause,
and if such allegation be not proved upon tlie plea of the general issue, the
plaintifl" shall be nonsuited, or a verdict shall be given for the defendant. See
Kendall X.Wilkinson, [4 E. & B. 680;] 24 L. J. M. C. 89; Isemble, in cases
witliiu this section, tlie action may be maintained wiCliout the conviction or
order being quashed, per Lord Campbell, C. J., R. v. Wood, 5 E. & B. 58 ; and
see Lawrenson v. Hill, supra. Qucere, however, whether notwithstanding
this act the justice, for acts done in the execution of his office, might not
claim the protection extended generally to judicial acts, even though the act
was done maliciously. See the cases as to judges cited ante, at the end of
notes to Mostyn v. Fabrigas-I

But when the act is done Ijy the justice in a matter, of which he has no
jurisdiction, [as in Crepps v. Burden'] or where he exceeds his jurisdiction, he
may, by section 2, be sued as before the statute, except Avliere tlie act com-
plained of has been done under a conviction or order, in which case "the
conviction" (sic in statute) must be fii'st quashed — or if done under a war-
rant for appearance followed by a conviction or order, the conviction or
order must be first quashed — [or if such warrant be not followed by con-
viction or order or be upon information for an indictable offence, still no
action can be maintained if a summons was previously served and disobeyed].
See, as to the construction of this section, Learyx. Patrick, 15 Q. B. 266;
Newhould v. Coltman, 6 Exch. 189; Haylock v. Sparke, 1 E. & B. 471 ; [Pease
V. Chaytor, on demurrer, 1 B. & S. 658 ; 31 L. J. M. C. 1 ; on motion, 3 B. & S.
620; Pedley v. Davies, 10 C. B. N. S. 492; 30 L. J. C. P. 374; Bessell x. Wil-

988 cuEPi'S V. dui:ui:n r.r alius.

son, 1 E. & B. 480; Lnmrenson V. /////, 10 Ir V. L. U. 177; Lnlor v. Bland, 8
Ir. C. L. U. 11"); ami Bolt v. Arn»/,l, Q. H. 2,s L. .1. M. C. 207, whcro tlio obj.-L-
tion to a conviction and warrant of connnitnient was tliat tlic justices had
signed it leaving l)laiiks for tlie amount of costs, but tiiis omission was held,
in an action for false imprisonment against the justices brougiit after the
conviction had been quashed, to be an erroneous exercise (jf jurisdiction
only, and not an excess.]

The summons mentioned in the statute, the non-attendance upon which is
to bar the maintemince of an action, is a summons hi/nrf conviction; the
section does not apply to a summons and warrant issued after convicti(m,
with a view to the levying of the penalty imposed, Btsstll v. Wilxnii, 1 E. &
B. 489. In Barton v. BrickmU, i;{ Q. B. :$;»;i, an action of trespass was
brought against a justice for wrongfully seizing the plaintilPs goods. It
appeared tliat the defendant hail convicted the plaintitl' under the 'ill far. 2,
c. 7 (for Sunday trading), in a penalty anil costs to be levied by distress.
The conviction directed that in ca.se of non-payment, and if there should be
no distress, the plaintitt" should be put in the stocks for two hours, unless the
penalty and costs were sooner i)aiil. The goods of the plaintitV were dis-
trained, and the conviction was quashed on a<-count of the illegal altermitive
contained in it, as to the stocks. It was lu'ld that tiie defendant was protected
under sect. 1 of this statute, and that sect. 2 did not apply, as the dffindnnt
had jurisdirtion to ordir thr distress, in resjjcct of which alone the action was
brought.

Sect. 3 i)rotects a justice hmill fide granting a warrant upon tiie conv iction
of another justice, winch is defective for want of jurisdiction, and nnikes
the convicting justice alone liable.

Sect. 4 prohibits actions by |)arties rated to the poor, though not liable to
be rated, or in respect of any defect in such rate against the justices issuing
a distress warrant thereon, — and further provides that the exercise of dis-
cretionary powers vested in a justice by statute, shall not furnish ground of
ection.

By sect. 5 [if a justice refuses to do any act relating to the duties of his
office], the Court of t^neen's Bench [may order him to do the act, and he will
not be] liable to [any proceeding for having obeyed the order. It has been
held that this section only applies if the act be one by which the justices
incur liability, Re(j. v. Percy, L. It. 9 Q. B. 64, but in the later case of Iie(j. v.
PhilUmore, 14 Q. B. D. 474, note, the court considered that this rule would
narrow the operation of the statute too much, though they declined to lay
down any absolute nde as to when the proceeding should be under this
section, and when by mandamus.] The court acts upon this section where
justices refuse to determine a case over which they liave jurisdiction, [and a
mandamus to them to hear and determine the case would issue, B. v. Cotton,
15 Q. B. 5G9; R. v. Justices of Bristol, 18 Jur. 426, in nota ; S. C. 3 E. & B.
479, in notci ; R. v. Paijnter, 7 E. & B. 328 ; R. v. Dayman, ib., 672 ; 7?. v. Dunn,
7 E. & B. 220; but not where the refusal is merely fonnal, and made for the
purpose of eliciting the opinion of the court, and deciding the case according
to the opinion given, R. v. Pcujnter ; R. v. Dayman.

It is sometimes a nice question wliether tlie justices have declined jurisdic-
tion, or wlietlier they have adjudicated, R. v. Broicn, 7 E. & B. 757; R. v.
Paynter ; R. v. Dayman; R. v. Tlie Mayor, &c., of Rochester, 7 E. & B. 910;
R. V. Wood, 5 E. & B. 49: and R. x. Padicick, 8 E. & B. 704, in which case
tlie dismissal 1>y (|uarter sessions of an ajipeal for want of jurisdiction was

CIIEPPS V. DURDEN ET ALIOS. 989

held to be a decision within tlie meaning of 12 & 13 Vict. c. 45, s. 5. See
also Carr v. Strinrjer, E. B. & E., where, though an appeal did not lie, yet the
court entertained the question so far as to examine -whether they had juris-
diction, and to give costs to the respondent : and see Ex parte Monroe, 8 E. &
E. 822].

But the court refused to make an order, directing justices to issue a war-
rant of distress, where the liability of the person against whom it was
sought appeared seriously doubtful, R. v. Browne, 13 Q. B. 654. [Orders to
issue warrants of distress were made in R. v. Justices of Kingston-npon-
Thames, E. B. & B. 2oG; R.v. Bradshaic, 29 L. J. M. C. 176; R. v. Eastern
Counties Rail. Co., 5 E. & B. 974; R. v. Lindford, 7 E. & B. 950; R. v. Boteler,
33 L. J. M. C. 101 ; R. v. Higginson, 31 L. J. M. C. 189 ; In re Hartley, 31 L. J.
M. C. 232; — to sign an order for the preferment of an indictment in R. v.
Arnold, 8 E. & B. 550.] On a motion against a magistrate under this section,
the general rule is, that the court will order the unsuccessful partj^ to pay
costs, and will not, on the motion for costs, enter into the merits of the
original application, R. \. Ingham, 17 Q. B. 884.

Sect. 6 makes the confirmation of a conviction or order on appeal a pro-
tection to a justice who issues a warrant upon it either befoi'e or after such
contirraation.

Sect. 7 empowers a judge to set aside the proceedings in any action brought
against a justice contrary to the provisions of the act : and every action
against justices must be brought within six months after the act complained
of (sect. 8), and not until after a month's notice in writing, &c. (sect. 9),
[the notice must be given, although the cause falls within the first section of
the act, Kirby v. Simpson, 10 Exch. 358. In cases Avithin that section the
notice should show that the act charged was malicious, Taylor v. Nesjield, 3
E. & B. 724. It] may be given before the quashing of the order, the act com-
plained of being the cause of action, although the action itself cannot be
brought until after the quashing, HayJock v. Sparke, 1 E. <& B. 471.

Sect. 10 makes the venue in the action local \_{qua're as to the effect of the
Judicature Acts, 1873, 1875, which abolish generally local venues, except
where otherwise provided by statute, Ord. XXXVI. Rule 1, but provide, Ord.
XIX. Rule 12, that every defence of not guilty by statute shall have the same
efl'ect as hei'etof ore) ] , and gives the defendant an option to plead the general
issue, and under it prove the special facts, and also gives him the privilege
of exemption from the jurisdiction of the county court. [See Weston v.
Sneyd, 1 H. & N. 703.]

By sect. 11a recovery of less than the amount tendered or paid into court
gives him a verdict with the security of the sum paid into court for his costs ;
and by sect. 12 the verdict is to be against the plaintifl*, or he is to be non-
suited, if he has not complied with the above-mentioned pi'eliminaries.

Sect. 13 provides that the plaintifl' shall not in any case recover more than
two pence damages Avhere it appears that he was guilty of the oflence of
which he was convicted, or liable by law to pay the sum ordered to be paid,
and that he has undergone no greater punishment than that assigned by law
to the oflence of which he was convicted, or for non-payment of the money
ordered to be paid.

By sect. 14 tlie plaintifl' is to have costs, as befoi'e the act, and where the
act complained of is stated to have been done maliciously, &c., they are to be
taxed as between attorney and client, and in all cases wliere there is judg-
ment against him he is to pay costs as between attorney and client.

9;Hj (JlCKl'l'S V. 1)L1M)KN KT Al.los.

Siicli is a snmmar)' of tlio provisions of this importaiii sianito.

Tlie conviction [or oriierj may i)o drawn np at any tinie before it is returned
to tlie quarter sessions [see tlie 11 & 12 Vict. c. 4:5, s. 14,] so tliat th(>u:;li it
may l)c informal at llrst, the ma<j;istrate has an opportunity of aineiidini"; it;
and it lias been declared to be not only leyal l)ut laudable so to do, It. v.
Baiker, 1 East, 180. Unless, indeed, it have been quashed or its invalidity
otherwise ascertained by the decision of a superior court, as for instance, by
the Queen's Bench on Habeas Corpus, Chaney v. Payne, 1 Q. B. 725. But it
would seem that after an invalid conviction has been tiled at sessions, an-
other mij;ht be substituted. A', v. Richards, 5 Q. B. 92(;. But the rule is ditlVr-
ent in case of an order, R. v. Justices of Cheshire, 5 B. & A. 4:50. [And see as
to tlic amendment of orders made by justices, 12 & 1:5 Vict. c. 4.j, s. 7; R. v.
Iliijhnui, 7 E. & B. 557; R. v. Ltindie, 31 L. J. M. C. 157. Even in the case
of a conviction, where a rule nisi had been obtained for a ctrtiorari to brim;
up a bad conviction, and after tiie conviction had been returneil to the cKrk
of the peace and filed, the magistrate drew up a fresh and corrected convic-
tion, it was held that the cirtiorari should go. Ex parte Austin, 50 L. J. M.
C.8.]

In Griffith v. Harries, 2 M. & W. 3;}5, it was stated by Baron Parke, that in a
case of Dimsdale v. Clarke, a.d. 1829, he and Mr. J. Littledale ilillered from
Mr. J. Bayley on the question whether it be necessary that the nuiiristrate's
jurisdiction should ap[)viir ajlirmalicely on the conviction, Mr. J. Bayley tliink-
iufj that it need not; but see Day v. Kin</, 5 A. & C. 359; Ji. v. Leins, 8 A. &
E. 885.

As the law re»iardin<j summary coniictions before justices is of great and
daily increasing importance, on account of the immense variety of subjects
which fall within this sort of jurisdiction, it seems advisable to [make some
general remarks on it].

A conviction before a justice or justices of the peace without the interven-
tion of a jury is always under some statute; the common law knows of no
such proceeding. It [has been] regarded by the courts with no particular
favour, and [formerly the justice was obliged], on the record of it, to show
[in detail] that he hail proceeded 7-ecto ordine. So much precision was re-
quired in drawing it up, that nuigistrates and their clerks were under consid-
erable difliculty, and ran considerable risk in framing it. For their ease and
protection stat. 3 Geo. 4, c. 23, provided a general form [which, however,
■was only applicable where no particular form had been given, and required
the evidence to be set forth. This statute lias been repealed, and nearly all
difficulty in framing a conviction removed, bj' one of the three Jervis's acts
relating to justices acting out of quarter sessions (the third of which, 11 &
12 Vict. c. 44, has been above epitomised), namely by the Summary Convic-
tions and Orders Act, 11 & 12 Vict. c. 43, which gives short forms of con-
victions and of proceedings to obtain and enforce them], and does away with
the eflect of variances and defects both in substance and form in [several
parts of] the proceedings themselves. [This act, with the acts of 42 & 43
Vict. c. 49 and 47 & 48 Vict. c. 43, and any future acts amending these acts,
are now to be styled "The Summary Jurisdiction Acts," see 42 & 43 Vict. c.
49, s. 50. For tlie forms contained in the Scliedule to 11 & 12 Vict. c. 43
others have been substituted by the rules drawn up under s. 29 of 42 & 43
Vict. c. 49 and ss. 4, 12 of 47 & 48 Vict. c. 43. See post, p. 711.]

The first section [of 11 & 12 Vict. c. 43] directs that in all cases where an
information (wliich need not be on oath unless a warrant issues in the first

CREPPS y. BURDEN ET ALTOS. 991

instance, sect. 10) is laid before a justice or justices, or complaint made
(whicli need not be in xoritiwj unless tlie statute require it, sect. 8), a sum-
mons may issue according to the form in the schedule [as to the mode of
service, see ioer Quain, J., Recj. v. Smith, L. R. 10 Q. B. 609] ; and by sect. 2,
in case of non-appearance, upon proof on oath of due service of tlie sum-
mons, what shall he deemed by the justice a reasonable time before the ap-
pointed day, [see Reg. v. Smith, L. R. 10 Q. B. 604,] he may, upon the infor-
mation or complaint being substantiated on oatli, issue his warrant according
to tlie form in tlie schedule: or in cases of convictions, where the original
information is upon oath, he may issue such warrant in the first instance, or
in cases where a summons issues without appearance, upon proof on oath of
due service, a reasonable time (not as in case of issuing a warrant what shall
be deemed by the justice a reasonable time) before the day appointed he may
proceed ex parte, and adjudicate ; and it is provided by sect. 1, — that no objec-
tion shall be allowed to any information, complaint or summons for any alleged
defect therein ' ' in substance or in form," — or for any variance in the evidence ;
but if considered by the justice prejudicial to the defendant, the case may be
adjourned. [See Whittle v. Franliand, 31 L. J. M. C. 81. Where the sum-
mons was for drunkenness and riotous behaviour, contrary to a special act, a
conviction for drunkenness only was quashed, Martin v. Pridgeon, 28 L. J. M.
C. 179; and see R. v. Briclhall, 33 L. J. M. C. 156.]

Sect. 3 contains a similar provision as to warrants, with a similar power of
postponement, and in the meanwhile commitment or enlargement upon recog-
nizances according to fonns in the schedule.

Sect. 4 directs the mode in which the ownership of property is in certain
cases to be stated.

Sect. 5 makes aiders and abettors in the commission of offences punishable
by summary conviction liable to the same punishment as principles.

Sect. 6 extends the provisions of 11 vfc 12 Vict. c. 42, to this act, [but is not
controlled by the 35th sect, of 11 & 12 Vict. c. 42, see 26 & 27 Vict. c. 77.
Bradfnxl Union v. Clerk of the Peace for Wilts, L. R. 3 Q. B. 604; 37 L. J. M.
C. 129.]

Sect. 7 gives the justice power to enforce the attendance of any material
witness within his jurisdiction, in the same manner as a defendant, and to
commit for seven days any witness refusing to be sworn or to answer.

Sect. 11 gives six months after the cause has arisen, in the absence of spe-
cial enactment, as the time for complaint or information. [See Eddleston v.
Francis, 7 C. B. N. S. 568; Lababnondiere v. Addison, 1 E. & E. 41 : Reeve v.
Yeates, 1 H. & C. 435 ; Morant v. Taylor, 1 Ex. D. 188, 45 L. J. M. C. 78 ; Cog-
gins V. Bennett, 2 C. P. D. 568.]

Sects. 12 (slightly modified by 47 & 48 Vict. c. 43, s. 4,) 13 (also similarly
modified), 14, and 16 (also modified as above), contain precise directions as to
the mode in which the heai'ing upon complaint and information is to be con-
ducted. [As to s. 14, see Ex parte Hayioard, 32 L. J. M. C. 89 ; Davis v. Sc.race,
L. R. 4 C. P. 172 ; 38 L. J. M. C. 79 ; Morgan v. Hedger, L. R. 5 C. P. 435 ; Reg.
V. Hutchins, 5 Q. B. D. 353; and as to s. 16, see Gelen v. Hall, 2 H. & N. 739.]

The seventeenth section provided for the use of the forms of convictions
and orders in the schedule to the act ; [but by the Summary Jurisdiction Act,
1884, s. 55, is repealed so much of this section " as specifies any form of con-
viction or order for which another form is provided by a rule under the Sum-
mary Jurisdiction Acts." The validity of forms so provided is established
by s. 29 of the Summary Jurisdiction Act, 1879, explained by s. 12 of the

992 , f'lM-'.iM's V. i>ri:i)i;N i:i' \i.n»s.

Siiinniary Jurisdiction Act, l.s.s4, ami the rules ami forms now in force will
be found in tiie Weekly Notes of Oct. 0, IHHC. By rule M it is jirovided that
the forms in the schedule to the rules or forms to tlie like ellV-ct nniy be used
with such variations as the circumstances may require. Hy rule :{'_', the forms
in the schedule to 11 & 12 Vict. c. 43, are annulled. It will be seen that — In
convictions (part I., forms 11 — 17) neither (1) the infurmatinn — (2) the
stnnmons — (3) the appearance or non-appearance of the defendant are to be
mentioned — and (4) the evidence is not to be set forth.

The requisites of a conviction, which fannerhj must have i)een recorded in
it, arc : — ]

1. The information, which [has been usuallj' stated t(» be] al)solutely essen-
tial in all cases, cxceptiuii wlierc the justice is empowered to convict on view
(see 1 Wm. Saund. 2(12, note, Jones v. Oiren, 2 I). & U. fiOO). It [has been
reiijarded as] (he foundation of his jurisdiction over the case, without which
his procecdinj; would be void (see R. v. Jiolton, 1 Q. B. (!G), [lilake v. Beech,
1 Ex. I). 320, 45 L. J. M. C. Ill; and though souje of the dicta in liefj. v.
Ihtfjhcs, 4 Q. B. D. G14, 48 L. J. M. C. 1.">1, appear somewhat inconsistent with
this view, the decision seems merely to nesfttive the necessity of any formal
information where not required by statute]. The same principle applies
to other limited jurisdictions created by statute; thus, a presentment is the
fountlation of the jurisdiction of commissioners of sewers, and if there
be not one their rate is void, Winr/ate v. Waitf, (> M. & W. 73i>; and see the
judfiuieut in Doe v. Bristol and Kxeter Rail Co., ("• M. & W. 320; R. v. Cruke,
Cowp. 2(1; and Christie v. Unicin, 11 A. & K. 373, where the same principle
was held to apply even to the exercise of an autliority conferretl by statute
on the chancellor; see also R. v. (iitardiatis of Hartley Union, 1 B. B. r>77;
[Lee v. Rowley, 8 E. & B. 857; and In Re Hopper v. Warhtirton, 32 L. J. Q. H.
104.]

The information need not have been in irridnf/ or even on oath, unless ex-
pressly directeil l)v an act of parliament to be so, Bastm v. Careir, 3 B. & C.
649; IRerf. v. Hityhrs, 4 Q. B. D. 014, 48 L. J. M. C. 151]. By the 11 & 12
Vict. c. 43, s. 10, whenever the justice issues a warrant in the first instance
without summons, the information must be upon oath.

[Objections cannot now usually be taken to the information for defects in
substance, or form, or for variances between it and the evidence, 11 & 12
Vict. c. 43, ss. 1 and 9; still,] care sliould be taken in framing it, since it
[has been usually considered to be] the foundation of the magistrate's juris-
diction. Care V. ^founta^n, 1 M. & Gr. 257; Carpenter v. .\fason, 12 A. & E.
629.

When there is no act giving a particular form, it is sudicient if the juris-
diction is substantially made apparent in the documents, or can be inferred
therefrom, Taylor v. Clemson, per Tindal, L. C J., 2 Q. B. 1032; [see Ex
parte Baker, 7 E. & B. 697]. Before the 11 & 12 Vict. c. 43 [ss. 1 & 9, the
evidence would not] supply omissions in tlie information, for the office of
the evidence is to prove, not to supply a legal charge, R. v. Wheatmain, Dougl.
232; Wiles v. Cooper, 3 A. & E. 528. It should state — the day on which it is
exhibited ; and the statement of a day inconsistent with, or insufficient to
warrant the conviction, formerly vitiated it, R. v. Kent, 2 Lord Kaym. 1546.

It should state — the place of exhibiting, that the magistrate may aiii)ear
to have been acting within his jurisdiction, see R. v. Kite, 1 B. & C. 101 ; and
R. V. Martin, 2 Q. B. 1037; Re Peerless, 1 Q. B. 143.

The name of the informer should, it seems, be set forth, that the defendant

CKEPPS Y. DUKDEN ET ALIOS. 993

maj- know who is accusing liim; in some eases, at all events, it is necessary,
see R. V. Stone, 2 Lord Ra.vm. 1545.

It should state — the name and st^le of the convicting justice or justices,
and show that he is acting within his jurisdiction. See Kite's Case, 1 B. & C.
101; R. V. Martin, 2 Q. B. 103G ; Re Peerless, 1 Q. B. 143; R. v. Inhabitants
of St. George, Bloomshunj, 4 E. & B. 520. Thus it [was before the statute
above mentioned held not to] be enough to state that he is justice in the
county, without stating that he is of or for the county, R. v. Bobbyn, Salk.
473 ; — the name of the offender or offenders, R. v. Harrison, 8 T. R. 508 ; the
time of the offence, so that the information may appear to have been laid in
due time, R. v. PuUen, Salk. 369 ; R. v. Chandler, Salk. 378 ; R. v. Crisp, 7
East, 389; — the place, that it may appear to have been within the justice's
jurisdiction, Kite's Case, 1 B. & C. 101, et notam ; — lastly, the charge should
be set forth with proper and sufficient certaint}% and contain every ingredient
necessary to constitute the offence, leaving nothing to mere inference or in-
tendment. " A conviction," to use the words of Lord Holt, " must be certain,
and not taken by collection," R. \. Fuller, 1 Lord Raym. 509 ; R. v. Trelaivneij,
1 T. R. 222.

Genei'ally speaking, it is sufficient to state the offence in the words of the
act creating it ; see R. v. Speed, 1 Lord Raym. 583 ; Davis v. Nest, 6 C. & P.
167; Ex parte Pain, 5 B. & C. 251; [/« re Perham, 5 H. & N. 30; ]VaIsby v.
Anley, 30 L. J. M. C. 121 ; and by 42 & 43 Vict. c. 49, s. 39, sub-s. 1, it is ex-
pressly enacted with i-eference to proceedings before courts of summary
jux'isdiction that " The description of any offence in the ■\\t)rds of the act, or
an}' order, bye-law, regulation, or other document creating the offence, or, in
similar words, shall be sufficient in law."] Cases, however, may occur in
which the words ol the statute are so general as to render some more cer-
tainty in the conviction necessary; per Denison, J., R.. v. Jarvis, 1 Burr. 154;
Ex parte Hawkins, 2 B. & C 31 ; R. v. Perrott, 3 M. & C. 379.

[Previously to the passing of 11 & 12 Vict. c. 43, it was held that] excep-
tions in the statute creating the offence should be negatived where they
appear[ed] in the clause creating the offence, R. v. Clarke, 1 Cowp. 35; R. v.
Jukes, 8 T. R. 542 ; though it [■\\as] otherwise when they occur[red] by way
of proviso in subsequent clauses or statutes, Cathcart v. Hardj, 2 M. & S.
534; Spiers v. Parker, 1 T. R. 141 ; R. v. Hall, 1 T. R. 320.

The 11 & 12 Vict. c. 43, s. 14, enacts, that whenever in cases of summary
convictions the information or complaint negatives any exception, proviso, or
condition, it shall not be necessary for the complainant to prove the negative,
but the defendant may prove the affirmative in his defence. [See Tennant v.
Cumberland, 1 E. & E. 401; Davis v. Scrace, L. R. 4 C. P. 172; 38 L. J. M. C.
79; Morgan v. Hedger, L. R. 5 C. P. 485; and by 42 & 43 Vict. c. 49, s. 39,
sub-s. 2, it is further provided that in proceedings before courts of summary
jurisdiction, " any exception, exemi^tion, proviso, excuse, or qualification,
whether it does or does not accompany in the same section the description of
the offence in the act, order, bye-law, regulation, or other document creating
the offence, may be proved by the defendant, but need not be specified or
negatived in the information or complaint, and, if so specified or negatived,
no proof in relation to the matter so specified or negatived shall be required
on the part of the informant or complainant."]

There are many cases where technical words, that would be necessary in an
indictment for the same oflence, are unnecessary in a conviction ; see R. v.
Chandler, 1 Lord Raym. 581 ; R. v. Marsh, 2 B. & C. 717.

994 CREPPS V. DUKDEN ET ALl<»s.

Although the information must, in order to give tlio magistrate jurisdic-
tion, state an offence of wliicli lie has a right to taivc cognisance, it need not
state evidence sudicient to support such a cliarge, for it is tlie chariji' wliich
gives the jurisdiction, Cave v. Mountain, 1 M. & G. 2(51; li. v. Bolton, 1
Q. B. OG.

2. Tliat tiic defendant was summoned or l)rouglit up by warrant ; for it
would be contrary to natural justice to convict witliout giving liini an oppor-
tunity of being lieard. Painter v. Liverpool Gas Co., 3 A. & E. 4;5.'} ; and see li.
V. Totness, 7 Q. B. 690; \_R. v. Li<jhtfoot, G E. & B. 822; Cooper v. The Board
of Works for the Wandsworth District, 32 L.J. C. P. 185; Lahahnondiere v.
Frost, 1 El. & El. 527 ; 28 C. J. M. C. 155 ; Blake v. Beech, 1 Ex. D. 320, 45 L.
J. M. C. Ill ; but, as before stated, the summons need not, accordini; to the
form of convictions given by the present Rules, be mentioned in it.

A general form of summons is given (part I., form 2,) in the Summary
Jurisdiction Kulcs, issc, mentioned aljove.] In some cases an act re(|uiros a
summons of a particular kind, and in those the justices have no jurisdiction
if it be omitted; thus, where the summons was to be ten days at least before
conviction, and it was served on the 20th to api)ear on the 30th, the con-
viction was held void, Mitchell v. Foster, 'J Dowl. 527; 12 A. & E. 472.
Where there is no statutable provision tlie summons should give him reason-
able time, li. V. Mallinson, 2 Burr. (!7'.i ; A', v. Juhnson, 1 Str. 2(!I; [see /n re
Williams, 21 L. J. 4G].

If, indeed, he appear of ins own accord, that will dispense with a sum-
mons, R. v. Stone, 1 East, G4D. See R. v. ./ustices of Wiltshire, [12 A. vt E.
793 ; and appearance and defence cures all defects in the summons. A', v.
Johnson, supra ; see A*, v. Berrtj, 28 L. J. M. C. 8G; Blake v. Beech, 1 Ex. D.
320, 45 L. J. M. C. Ill ; and see AV;/. v. llwjhes, 4 Q. B. D. G14, 4m L. J. M. C.
151].

If a summons be ineflectual, a warrant may, at least in some cases, be
issued; see Bane v. Methiien, 2 Bing. G3 : but then the information ought to
have been upon oath; see B. v. Payne, Comberb. 359; per Holt, Barnard. 34;
and it is the opinion of Mr. Parley that a warrant (in the absence of express
enactment) lies only when the ollonce involves some breach of peace, Paley,
37, [Gth ed. p. 95]. The 11 & 12 Vict. c. 42, now authorises justices to issue
a warrant to compel appearance in all cases of summary convictions or
orders. [The warrant or summons is not avoided by reason of the justice,
who signed the same, dying or ceasing to hold office, 42 & 43 Vict. c. 49,
s. 37.]

3. The appearance or non-appearance of the defendant. [This need not
now, according to rules above referred to, be stated in the conviction.] If,
being summoned, he do not appear, he may nevertheless be convicted, for
otherwise any defendant might escape merely by not appearing, R. v. Simp-
son, 1 Str. 44; and see 11 & 12 Vict. c. 43, ss. 2, 13, which enable the justice
to convict on default of appearance, or to issue a warrant to compel appear-
ance and adjourn the case, R. v. Kinr/shy, 15 J. P. Go ; Cowp. 30.

4. If the defendant confess, \_the confession must formerly have been]
stated, [but see now the forms in the Rules 188G. If he does so, there is]
no necessity for evidence, R. v. Hall, 1 T. R. 320; R. x. Clarke, Cowp. 35;
even though the statute direct the conviction to be " on the oath of one or
two credible witnesses " : see R. v. Hall, uhi supra ; R. v. Gage, Stra. 546,
and 1 Wms. Sauud. 262, note; see 11 & 12 Vict. c. 43, s. 14 [and 42 & 43 Vict,
c. 49, s. 13], under whicla the justice may convict the defendant at once, or

CKEPPS V. BURDEN ET ALIOS. 995

make an order a2:ainst him if lie admit the trntli of the information or
complaint.

5. If the defendant [did] not confess, the evidence must [have been] set
forth, [but should not be now, according to the forms given by the Rules of
1886]. It should be given in his presence. It is not necessary, in order to
warrant the conviction, that the justices should clearly have come to a right
decision in point of fact. If there was evidence from which any reasonable
person might have drawn the same inference as they did, they will do, B. v.
Glossop, 4 B. & Ad. 61G; A7wn., 1 B. & Ad. 382. Indeed, the magistrate being
substituted for a jui-y, his decision cannot be said to be wrong if the evidence
was such as might have been left to a jury, and from which they might have
drawn the same conclusion, R. v. Davis, 6 T. R. 178.

6. There must be a judgment and an adjudication of the proper forfeiture,
see R. V. Harris, 7 T. R. 238 ; R. v. Salomons, 1 T. R. 251 ; R. v. Hawkes, Str.
858; [i?. V. CricJdand, 7 E. & B. 866; R. v. Williams, 18 Q. B. 393; and
Labalmondiere v. Frost, 1 El. & El. 527; 28 L. J. M. C. 155, S. C. ; In re Baker,
2 H. & N. 219.] There is, however, no particular form of judgment, R. v.
Thompson, 2 T. R. 18. And the adjudication may be good in part though it
exceed the jurisdiction of the justices, provided the excess be severable, R.
v. Justices of Wiltshire, 12 A. & E. 793 ; R. v. St. Nicholas, 3 A. & E. 79. [See
Cross V. Watts, per Byles, J., 13 C. B. N. S. 247, 248 ; 32 L. J. C. P. 73.] The
application of the penalty, where the act directs any mode of applying it,
[has been held to be] a necessary part of the judgment, Ghaddock v. Wilbra-
ham, 5 C. B. 645 : [but at any rate in most cases it would be sufficient to fol-
low the forms in the schedule to the rules of 1886, which do not provide for
the application of the penalty.] When [however] the statute leaves the
application discretionary the mode in which the discretion was exercised
ought [it would seem] to be stated, R. v. Dempsey, 2 T. R. 96. Where the
justice is to give costs or charges, he must ascertain their amount in the con-
viction, R. V. Simons, 1 East, 189 ; [Bott v. Acroyd, 28 L. J. M. C. 207] ; B.
V. St. Mary, 13 East, 57; and as to costs, see now 11 & 12 Vict. c. 43, s. 18,.
[and 42 & 43 Vict. c. 49, s. 8,] and R. v. Barton, 13 Q. B. 389.

7. Lastly, the conviction should be subscribed, dated and sealed ; see R. v.
Elwell, Str. 794; Basten v. Careio, 3 B. & C. 649; and see 11 & 12 Vict. c. 43,
s. 14, which requires the conviction or order to be drawn up under the hand
and seal of the justice. The reason of dating it is, that it may appear when
it was made ; and if that do appear, that is enough, and an impossible date
might be rejected, B. v. Picton, 2 East, 198 ; see B. v. Bellamy, 1 B. & C. 500.

The above observations apply to convictions in general ; but a conviction
is the creature of the statute law ; and, if a statute prescribe any jjarticular
form for it, no matter what, that form [except when otherwise provided by
statute] must be strictly pursued, Davison v. Gill, 1 East, 72 ; Goss v. Jack-
son, 3 Esp. 198.

By s. 27, sub-s. 5, of the Summary Convictions Act, 1879, it is provided
that where an indictable ofl'ence is under the circumstances in that act men-
tioned, authorised to be dealt with summarily " The conviction shall contain
a statement either as to the plea of guilty of an adult, or in the case of a
child as to the consent or otherwise of his parent or guardian, and in the case
of any other person of the consent of such person, to be tried by a court of
summary jurisdiction."

[To proceed with the summary of the 11 & 12 Vict. c. 43.] The 18th sect,
enables the justice to order costs either to the prosecutor or complainant, or

\)[){') CUKI'l'S V. DlllDK-V KT ALKtS.

to the defendant, as to which see also iln- Siiiimiary Corivictions Act, 1879,
8S. G, 8, & 28.

Sects. 11) to 21) & 31, relate t(; the mode in whlcli iieiialties imposed, and
costs ordcfed by justices are, under various circumstances, to be recovered
and paid. Sects. 10 & 20 are partly repealed by tlie Summary Convictions
Act, 1874, sched. Sec as to .sect. 23 Lcverick v. ^fen•('r, 14 Q. B. 751); [as to
sect. 25 R. V. Cutbush, L. R. 2 Q. B. 379 ; and as to sect. 26 Winn v. Mussman,
L. 1{. 4 Ex. 292; 38 L. J. Ex. 200. Further provisions on the like subject are
contained in the Summary Jurisdiction Act, 1879, ss. 4 to 9, 21, 24, 28, 34, 35,
39, 43, and in the Summary Jurisdiction Act, 1884, s. 3]. And sec as to the
[proper] mode of [a\vardin<;] costs in cases of appeal under sect. 27 [of 11 &
12 Vict. c. 43], R. V. llcllier, 17 Q. B. 229; li. v. JJinneif, 1 E. & B. 810; and
A'. V. lltintJey, 3 E. & B. 172; {R. v. .hmtices of Ehj, 5 E. & B. 489; Hmj v.
Matthews, 4 B. & S. 425; 33 L. J. M. C. 14. As to sect. 31, see .}/ii)/<,r „f
Reifjale v. Hart, L. K. 3 Q. B. 244 ; 37 L. J. M. C". 70.]

Sect. 32 enacts that the forms in the sciiedule shall be deemed good, valid,
and sufllcicnt in law, [but these forms have now been annulled, and otiiers
substituted, see ante p. 711.]

Sects. 33, 34, regulate jurisdictions of metropolitan police, and stipendary
magistrates; also of the lord mayor and aldermen of London, [l)ut these
sects, do not apply to or restrict I lie operation of 42 & 43 \'ict. c. 49, see s.
52.]

Sect. 35 provitles that the act shall not extend to orders of removal, orders
as to lunatics, [see, however, Bnulford Union v. Clerk of the Peace for Wilts,
L. K. 3 Q. B. 604; 37 L. J. M. C. 129], nor to informations concerniny the excise,
customs, stamps, taxes, or post ojjicc [but the foregoing exception in italics
is repealed by 42 & 43 Vict. c. 49, s. 55], nor to orders, &c., in matters of
bastardy, [but the Summary Jurisdiction Act, 1879, which is to be construed
as one with 11 & 12 Vict. c. 43, does " apply to the levying of sums adjuilged
to be paid by an order in any matter of bastardy, or by an order which is
enforceable as an order of alliliation, and to the imprisonment of a defeuilant
for non-payment of such sums, in like manner as if an order in any such
matter or so enforceable were a conviction on information, and to the proof
of the service of any summons, notice, process, or document in any matter
of bastardy, and of any handwriting or seal in any such matter, and to an
appeal from an order in any matter of bastardy,"] nor to proceedings under
acts regulating the labour of children in factories, &c., [which last exception
was repealed by the Factories and Workshops Act, 1871, 34 & 35 Vict. c. 104,
s. 11 : see now 41 Vict. c. 16, s. 89].

An adjudication by two justices under the Lands Clauses Consolidation
and Railway Clauses Consolidation Acts, 1845, as to the compensation payable
by a railway company to a person whose lands have been injuriously aft'ected
by their works, is [not] an order v/ithin sect. 1 of this act, [R. v. Edwards, 13
Q. B. D. 586; 53 L. J. M. C. 149; overruling Re Edmundson, 47 Q. B. 67.

By the Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), already
referred to, the powers of courts of summary jurisdiction have been materi-
ally increased. It has not been thought necessary, however, to set out the
details of that act, nor of the later act of 1884 (47 & 48 Vict. c. 43) which is
principally a repealing and explanatory act.

The alterations in procedure, so far as they relate to the subject-matter of
this act, have been already mentioned.

But the most important feature of the Act of IsTii is that it gives power to

CREPPS V. DURDEN ET ALIOS. 997

courts of summary jurisdiction to deal summarily with certain specified
indictable ofTences in three cases, viz. : — (1) In the case of a child (i.e., a
person who, in the opinion of the court, is under 12 years), unless the parent
or guardian objects, charged with any ofl'ence except homicide; (2) In the
case of a young person (i.e., a person who, in the opinion of the court, is of
the age of 12 and under 16 years of age) , charged with certain cases of larceny,
embezzlement, and receiving as specified in the First Schedule, if the accused
consents; (3) In the case of an adult {i.e., a person who, in the opinion of
the court, is of the age of 16 years or upwards), charged with the same class
of offences, if he pleads guilty, or with another class of similar offences
specified in the same Schedule, if he consents. See ss. 10-17, 24, 27, 28.

By s. 17 the right to claim trial by jury is given to a person charged before
a court of summarj' jurisdiction, with an offence other than an assault involv-
ing a liability on conviction to imprisonment for a term of more than three
months.

By s. 19, an appeal is given to the general or quarter sessions against
certain summary convictions and orders. See as to procedure in appeal,
ss. 31, 32.

By ss. 6, 7, 8, and 35, 37, special powers are given for the recovery as a
civil debt of sums ordered to be paid by a court of summary jurisdiction.
See R. V. Price, 5 Q. B. D. 300.

By s. 29 power is given to the Lord Chancellor to make, rescind, and alter
rules in relation to the Summary Jurisdiction Acts. The present rules will be
found in the Weekly Notes, Oct. 9, 1886.]

If a conviction be void on the face of it, it follows, as of course, that [as
a general rule] no act done in pursuance of it can be justified, and tliat any
seizure of person or property under it will form the subject-matter of an
action, as will be seen in the principal case ; subject, however, to the provi-
sions of 11 & 12 Vict. c. 44, ante, p. 704 et seq.

[Cases there are, however, in which the convicting justice, though he has
convicted without jurisdiction and his order ..as been acted upon, is not liable
to an action except he either acted mala fide, or ought to have known of his
defective jurisdiction. The class of cases referred to is where the jurisdic-
tion of the justice depends upon the existence of a certain state of facts.
Whether those facts exist is a collateral question Avhich he has to decide ; and
though he decide wrongly and so by his wrong decision attribute to himself
and act upon a jurisdiction which he does not possess, he is not liable to an
action merely on account of his erroneous decision on the question of fact.
Pease v. Cliaytnr, 3 B. & S. 620.

It is otherwise if the mistake be one of law. See Hnulden v. Smith, 14 Q.
B. 841, cited by Blackburn, J., in his judgment in Pease v. Chaytor, uhi sup.
But until his erroneous judgment be acted upon so as to make him liable in
trespass he is not liable for his judicial mistake. Sommerville v. Mirehouse,
1 B. & S. 652.]

But besides [the remedy by action,] there are two modes of impeaching
[convictions] , first by appeal, secondly bj^ certiorari.

An appeal, like a conviction, is the creature of the statute law, and never
lies unless where it is given by express terms, 7?. v. The Recorder of Ipswich,
8 Dowl. 103; R. v. Hanson, 4 B. &. A. 521; [/?. v. Justices af Warwickshire,
6 E. &. B. 837; Ex parte Chamberlain, 8 E. & B. 644. See also R. v. Justices
of Worcester, 3 E. & B.486; R. v. Inhabitants of London, 3 E. & B. bi'l; A^-G.
V. Sillem, 10 H. of L. Ca. 704 ; 2 H. & C. 581 ; 33 L. J. Exch. 209].

998 CKEprs V. i>uin)i:N kt alios.

The rule with regard to a certiorari is tlie very reverse. It always lies
unless expresslij taken away, R. v. Abbot, Dougl. 543; and it requires very
strong words to do so ; for even where a statute gave an appeal to the ses-
sions, and directed that it should be finally determined there, and no otlier
court should intermeddle with the causes of appeal, it was held that a ccrtio-
rari lay after the appeal, R. v. Moreley, 1 W. Bl. 231 ; R. v. Jukis, 8 T. K.
542; see R. v. Justices of West Riding, Yorkshire, 1 A. & E. 575; where it was
taken away. A', v. Fell, 1 B. & Ad. 380; A*, v. Justices of Lancashire, 11 A. &
K. 144, where an order in pursuance of a statute leaving the certiorari, but
made by a town council empowered by 5 & (I W . 4, c. 7(i, wiiich takes it away,
was held removable by certiorari. The reason of this is, that it is an ex-
tremely beneficial writ, being the medium througii which tlie Court of Queen's
Bench exercises its corrective jurisdiction over the summary proceedings of
inferior courts. [A section in an Act of Parliament taking away the certio-
rari does not apply where there has been an absence of jurisdiction. Ex parte
Bradlaugh, 3 Q. B. D. 509.

Where it is expressly taken away ii has l)een decided that it cannot issue
even to bring up to (juash an oriler of justices in (piarter sessi(ms condi-
tionally allirming a conviction subject to a case for the opinion of the court.
Reg. V. Chanlrell, L. K. 10 Q. B. 087, 44 L. J. Q. B. 1(;7. Now, however, a
certiorari is not in such case re*iuired, 42 & 43 Vict. c. 4i>, s. 40.]

Even where it is taken away in express tenns, they do not include the
crown unless named, A', v. Davies, 5 T. II. G26; R. v. Allen, 15 East, 333; R.
V. BouUbee, 4 A. & E. 498. Nay, it is said that the attorney-general, on behalf
of the crown, might in such case obtain the writ for a defendant; see 1 East,
303, note, and the authorities there cited.

A certiorari is a writ, issuing out of the Chancery or Queen's Bench [Divi-
sion of the High Court of Justice], conunanding the judges or oMlcers of an
inferior court to certify and return the record of a matter before them. [See
Walsall V. L.d: X. ]V. A'., 4 App. Cas., per Earl Cairns, C, at p. 39.] It is
used for a great variety of i)urposes; but we are at present looking only at
Its applicability to the case of a conviction. No writ of error lies upon a
conviction ; so that a certiorari is the only mode of bringing it into the
Queen's Bench [Division] in order to reverse it. [See per Bramwell, L. J.,
in Reg. v. Ocer.'<eers of Walsall, 3 Q. B. D. 464. And the jurisdiction of the
Court of Queen's Bench to issue the writ of certiorari formerly applied, and
that of the Queen's Bench Division of the High Court of Justice now " ap-
plies only where there is some defect of jurisdiction or Informality or defect
apparent on the face of the proceedings" In the Inferior Court, Reg. v. Orer-
seers of Walsall (ubi sup.). The superior court cannot give Itself jurisdiction
through the writ of certiorari when it otherwise possesses none.]

It [has been held that a certiorari'\ is not, like a Avrit of error, granted ex
debito justitice; but "application is made to the sound discretion of the
court," R. v. Bass, 5 T. R. 252; R. v. Manchester and Leeds Rail. Co., 1 P. &
D. 164; B. V. South Holland Drainage Committeemen, 1 P. & D. 79. [But in
a recent case the Court of Queen's Bench, after taking time to consider this
very point, held that where the applicant was "a party grieved "the writ
ought to be treated like a writ of error, as ex debito justitice; but where the
applicant is not grieved, but comes forward merel}' as one of the public, the
court has a discretion. They held, however, that the "\\Tit is clearly not a
matter of course. The court must be satisfied on affidavits that grounds for
issuing it exist. And even where the applicant is a party grieved, if he has

CEEITS V. BURDEN ET ALIOS. 999

by his conduct precluded himself from taking an objection, the court will not
permit liini to malve it. Beg. v. Justices of Surrey, L. 11. 5. Q. B. 466; 39 L. J.
M. C. 145. See also Reg. v. Sheward, 9 Q. B. D. 741.

The application is by way of motion, and by 13 G. 2, c. 18, s. 5, " no
certiorari shall be granted to remove any order, conviction, or other pro-
ceeding before a justice or at the sessions, unless it be applied for in six
calendar months, and upon oath made that the party has given six days- notice
in writing to the justice or justices, or two of them, if so many there be:"
see E. V. Boughey, 4 T. R. 281 ; R. v. Bloxam, 1 A. & E. 386 ; R. v. Inhabitants
of Serenoal-s, 7 Q. B. 136; [In re Hopkins, E. B. & E. 100; R. v. Allan, 4 B. &
S. 915; 33 L. J. M. C. 98; R. v. Hodgson, 5 Nov. 1863, 9 Law T. 290]. The
notice to the justices must be six days before the rule nm is moved for, one
day inclusive, the other exclusive, R. v. Gondenough, 2 A. & E. 463; R. v.
Flounders, 4 B. & Ad. 865. It must be by or on behalf of the party intending
to move, and must appear to be so, R. v. Justices of Lancashire, 4 B. & Ad.
289 ; R. V. Justices of Cambridgeshire, 3 B. & Ad. 887 ; E. v. Justices of Kent, 3

B. & Ad. 250; R. v. Justices of Lancashire, 3 P. & D. 86, 11 A. & E. 144, where
the notice was held sufficient; R. v. Justices of Shrewsbury, [9 Dowl. P. C.
524; S. C. nom.l R. v. How, 11 A. & E. 159. But the crown seems not to be
hound by this even where it espouses the defendant's side, R. v. James, 1 East,
303, note; R. v. Berkeley, 1 Ken. 80; R. v. Battams, 1 East, 298.

If, upon the discussion of the rule, the writ be granted, it removes the con-
viction into the court above, where it is quashed if bad ; if good, it remains
in the Queen's Bench, unless, indeed, to keep it there would occasion a defect
of justice, in which case it may be sent back again by writ of procedendo, B.
V. Kexile, 2 B. & Ad. 299.

The person prosecuting the certiorari must by 5 G. 2, c. 19, enter into
recognizance for 50Z., with competent sureties to prosecute it with effect and
pay costs if unsuccessful. This act does not, however, apply to the case of a
prosecutor obtaining the writ, R. v. Spencer, 9 A. & E. 485. [A writ of
certiorari may on motion be superseded quia improvide emanavit, Reg. v.
Chanlrell, L. R. 10 Q. B. 587, 44 L. J. Q. B. 167.

Where certiorari has gone to bring up a conviction for an offence under the
criminal law, no appeal will lie to the Court of Appeal, criminal cases being
expressly excepted from the jurisdiction of that court by s. 47 of the Judica-
ture Act, 1873, see Reg. v. Fletcher, 2 Q. B. D. 43, 46 L. J. M. C. 4; Reg. v.
Rudge, 16 Q. B. D. 459. But where by certiorari an order of quarter sessions
as to a borough rate had been brought into the Queen's Bench Division, and a
rule nisi to quasli such order was subsequently discharged, and the order of
sessions was affirmed by a rule of the Queen's Bench Division, the Court of
Appeal were equally divided as to whether an appeal lay from this last rule.
Bramwell and Cotton, L. JJ., held that the jurisdiction was given by the gen-
eral words of the 19th section of the Judicature Act, 1873 ; whilst Cockburn,

C. J., and Brett, L. J., were of the contrary opinion, being of opinion that the
Court of Queen's Bench never had jurisdiction to quash such an order of
sessions, but merely that a custom had arisen of taking the opinion of the
Queen's Bench, upon which the sessions acted, and that therefore there had
been no decision of the Queen's Bench Division on which an appeal would
lie. On appeal, the House of Lords adopted the view of Bramwell and Cot-
ton, L. JJ., Walsall v. L. & K W. R. Co., 4 App. Cas. 30; 48 L. J. Q. B. 65.
No leave to appeal under sect. 45 of the act is in such case necessary, Hling-
vjorth V. BiiJiiipr East Highway Board, 53 L. J. M. C. 60; and see Beg. v. Pem-
berton, 5 Q. B. D. 95.]

1000 CREPI'S V. DUKDEN KT ALIOS.

The Queen's Bencl> [Division], excrcis'n}? its appellate power over ft con-
viction removed into it by m-tinrnri, will not allow the merits of tlie case to
be asjain litififated ui)on ullidavit; for the justices are the proper persons to
determine upon those. 11. v. liultun, 1 Q. B. {>(); li. v. Jitstircit of liurkiiuj-
luunshirr, 3 Q. H. HOO : [And so where the justices in tjuartcr sessions
quashed a maLcistrate's conviction on the ^rouiul that certain words of the
statute on wliicli it was founded were omitted in it, the Queen's IJencli Divis-
ion, thoui^li holding their decision to be erroneous, declined to interfere by
mamhuniis, Jit'tj. v. Jii.stires of MiddlcsfX, 2 Q. B. D. 510, 4(1 L. J. Q. 15. 74(;.
Wliere, however, by consent of tlie parties, the (|uarter sessions of a recorder
had stated a special case, tlie court would decide on certiorari whether the
facts stated in the case amount to the ott'ence charged, even though the
certiorari were taken away. A', v. Dickinson, 7 E. & B. HSl ; though see AV;/.
V. ChitnlreU, L. U. 10 Q. B. 587, 44 L. J. Q. B. MM. And now, by s. 40 of the
Summary Jurisdiction A(!t, 1871) (42 & 4;i Vict. c. 4t)), it is provided that "a
writ of rcrlinrari or other writ shall not be re(|uired for the removal of any
conviction, order, or other determination, in relation to which a special case
is stated by a court of general ortjuarter sessions for obtaining the jmlgment
or determination of a superior court."]

But a question has occasionally arisen whether, in cjises where the justices
have proceeded icit/iout jurisdiction, and have nevertheless stated upon the
face of the conviction matter showing a jurisdiction, it be competent to the
defendant to prove the want of jurisdiction by allldavit. It certaiidy appears
desirable that the court should have the power to entertain the t|Uestion of
jurisdiction. Some cases miglit easily be suggested, in which not only great
private i)ut great public inconvenience might arise from leaving an invalid
order or conviction unreversed, and great injustice might l)e caused l)y allow-
ing justices out of or in sessions, by nuiking their onler or conviction good
upon the face of it, to give themselves a jurisdiction over matters not en-
trusted to them by law.

Whether a mandamus would lie in such a case to oblige them to make a
correct statement, is a question which the Queen's Bench [Division] would, at
least in the nuijority of instances, probably answer in the negative; for
though it is true that in some cases, where there has been a clear omission of
some material ingredient in a conviction, the court has by 7nandamns ordered
it to be supplied; as in De Rix, 4 D. & R. ;}r)2 ; 11. v. Mnrsh, 4 D. & K. 2r,0;
R. V. Warneford, 5 D. & U. 489; A', v. Allen, 5 I). & B. 4!»0; yet this lias been
done after the order or conviction had been returned upon a certiorari ; and
it either clearly appeared, or was shown by affidavit, to the court, that the
whole or some material portions of the evidence had been omitted ; (see the
observations of the court on these cases in A*, v. Wilson, 1 A. & E. G27;) and
the mandamus went not to compel the court below to insert a particular thinfj,
or raise a particular question, upon their return, but merely to oblige them to
set out an integral part of the case, which must have existed, and had been
omitted. I saj' must have existed, because in H. v. Wilson, where evidence
might or might not have been acted on, the court would not send the manda-
mus.

And there are cases in which the court has refused to interfere by mandamus
to compel the courts below to raise a particular question; for instance, R. v.
Hewes, 3 A. & E. 725, the jury had returned a verdict, guilty h>j mischance;
the chairman of the sessions told them they must find a general verdict ; and
they found a verdict of guilty, and recommended to mercy on the ground that

CREPPS V. BURDEN ET ALIOS. 1001

the act was not done with a malicious intent. The motion was for a man-
dmmis to set the clerk of the peace's mimite right according to the facts, in
order that a writ of error might be sued out. The rule was discharged. Mr.
Justice Patteson said, " The case of a mandamus to enter continuances and
hear is not like this. There the justices are ordered merely to hear an appeal,
and to enter continuances l)ecause those are necessary in order to enable them
to hear; so, in tlie present case, if it were necessary for the defendant to
have a record made up, and the officer refused to do it, the party having a
right to avail himself of the record might apply for a mandamus, as in R. v.
Justices of Middlesex, 5 B. & Ad. 1113. I have always understood that this
court might send a mandamus to an inferior court to do its duty in general
terms, but not to do a particidar thing , as to make an alteration here or there in
the clerk of the peace's minutes ; " see /?. v. Justices of ^fiddlesex, 9 A. & E.
546, judgment of Littledale and Coleridge, JJ., and per curiayn in R. v. Lords
of the Treasury, 10 A. & E. 179; ?i. v. Lords of the Treasury, 10 A. & E. 374,
and per Lord Denham in R. v. Eastern Counties Railway, 10 A. & E. 547 ; R. v.
Justices of Buckinghamshire, 3 Q. B. 800; [R. v. Justices of Bristol, 18 Jur. 426,
note «; R. v. Dayman, 7 E. & B. 672].

Supposing that the court below cannot be compelled by mandamus to
show the defect of jurisdiction upon the record, the next question is, will
the court above allow evidence of such defect of jurisdiction to be 'aid
before it by way of affidavit, on the record being brought before it by a writ
of certiorari ?

In R. V. St. James's, Westminster, 2 A. & E. 241, it was remarked by Mr. Jus-
tice Taunton (a judge whose obiter dicta are always worthy of the greatest
attention) that this has been constantly done. In R. v. Inhabitants of Great
Marlow, 2 East, 244, an appointment of overseers, good on the face of it, was
allowed to be questioned by affidavit on the ground of a defect of jurisdic-
tion, and was finally quashed. The court in that case had taken time to con-
sider as to the practice with regard to receiving the affidavit ; and Mr. Justice
Lawrence mentioned several similar cases in which that course had been pur-
sued. A similar course seems to have been pursued with an order of the
quarter sessions m R. v. Justices of the West Riding of Yorkshire, 5 T. R. 629.
In the case of R. v. Justices of Cheshire, 1 P. & D. 93, 8 A. &. E. 400, tlie ques-
tion was a good deal discussed; and it seems to have been admitted that
affidavits might be looked at for the purpose of showing a defect of jurisdic-
tion. " It cannot be disputed," said Mr. Justice Coleridge in that case, " that
there are many cases in which affidavits may be looked at in order to ascer-
tain whether there was jurisdiction or not; for suppose an order made, which
was good on the face of it, but which was not made by a magistrate, it is
clear that this fact may be shown to the court." Accord. R. v. Sheffield and
Manchester Rail. Co. [11 A. & E. 194] ; and it seems to be settled by the later
cases that a defect of jurisdiction may be shown by affidavit, though the pro-
ceeding is so drawn up as to appear valid on the face of it. [See the judg-
ments in] R. V. Bolton, 1 Q. B. 66; [The Whitbury, <&c.. Union Case, 4 E. & B.
314 ; Tn re Penny, 7 E. & B. 660, where on certiorari an inquisition under the
Lands Clauses Act, 1845, was quashed upon affidavits showing that the jury
in assessing the damages took into account an item which was not a subject
for compensation within the act (Mortimer v. S. Wales Rail. Co., E. & E. 375) ;
In re Hopkins, E. B. & E. 100 ; 7?. v. The Recorder of Cambridge, 8 E. & B. 637 ;
R. V. Metropolitan Rail. Co., 32 L. J. Q. B. 367; Read v. Victoria Station and
Pimlico Rail. Co., 32 L. J. Exch. 167] ; and R. v. Cheltenham Paving Commis-

1002 CREITS V. DUUDKN KT ALIOS.

siunern, 1 Q. B. 407, where the defect consisted in the presence on tlie bench
of interested parties as justices.

On tlie otlier liand, notliinj^ can be more common than to llnd it laid d(nvn
tliat a conviction or order is conclusive of the matter .slated in it for tiie pur-
pose of showing a jurisdiction. [See the judgment of Mr. Justice I'attesoa
III re Clarke, 2 Q. B. G34; see also Colonial Baiik of Australasia v. Willan, L.
R. 5 P. C. 417; 43 L. J. P. C. 39.

Possibly the distinction may be between cases in which the conviction or
order is made by persons who arc admitted to constitute a legal court, and
who have stated facts which, on information being laid, or a case coming
before them, would be matter to be proved, and adjudicated upon h>j them, and
cases in winch the objection is, that they are not a court at all, because not
in fact magistrates, or i)ecause interested, because they sat out of the limit of
their jurisdiction, or for some other reason, striking at their existence as a
court, so that the objection is not that the ttatement of a court is erroneous,
but that the source of the statement is not a court at all. See the judgment
of Bramwell, B., In re Baker, 2 H. & N. 219. But it may well be doubted
whether this distinction affords a sudicient test.

It should seem that the Queen's Bench Division will on certiorari entertain
allidavits where the conviction is good on the face of it, — not only to show
that preliminary matters recjuired to give the justice jurisdiction to enter
upon an iM(iulry into the merits of the case, were wanting, see A', v. Bolton,
1 Q. B. OU; A'. V. Badijer, C E. & B. 13; A", v. Wood, 5 E. & B. 49; A', v.
Justices of Totness, 2 L. M. & P. 230; the judgments in B. v. St. Olave's
District Board, 8 E. & B. 529; and In re Smith, 3 II. & N. 227 — or that
circumstances appeared in the course of the inquiry which ousted his juris-
diction, R. V. Nunnetey, E. B. & E. 852 ; R. v. Cridland, 7 E. & B. 352 ; R. v.
Backhouse, 30 L. J. M. C. 118; R. v. Stimpson, 4 B. & S. 301 — but also that
there was no eciclence to prove some fact, the existence of which was essen-
tial to establish the offence charged.

It must be remembered tliat before 11 & 12 Vict. c. 4;!, the evidence must
have been set forth in the conviction, and if there was none to support some
material pai't of the information, the conviction would have been (juashed,
R. V. Smith, 8 T. K. 588. The alteration by the statute of the forms of
conviction, which dispenses with the necessity of setting forth the evidence,
plainly does not narrow the jurisdiction of the Court of Queen's Bench
to quash writs void for matter of substance ; and in order to exercise this
jurisdiction in respect of convictions bad for want of evidence, but drawn
up according to the general form given by the statute, it is necessary that the
court should receive affidavits. See the judgments in Bnilnfs Case, 3 E. & B.
607, where affidavits were admitted for the purpose of impeaching a conviction
under the Masters' and Servants' Act, 4 Geo. 4, c. 34, by showing that tliere
was no evidence before the justices from Avhich the relation of master and
servant could be inferred.

" Affidavits," said Pollock, C. B., In re Baker, 2 H. & N. 219, 223, " may be
used for the purpose of showing that there was no evidence at all. l)nt
if there is conflicting evidence, it is for the justice to decide upon it." (But
see Stanhope v. Thorsby, L. R. 1 C. P. 423, 35 L. J. M. C. 182.)

In In re Thompson, 6 H. & N. 193, 30 L. J. M. C. 19 S. C, where the pris-
oner had been charged with unlawfully assaulting and abusing Susannah H.,
and it was plain upon the evidence that if any offence, a rape or assault with
intent to ravish had been committed, yet the justices convicted the prisoner

CREPPS V. DURDEX ET ALIOS. _ lOOS

of a common assault, it appears to have been the opinion of I'ollock, C. B.,
and Wilde, B., that the conviction was bad, because the justices could not
have believed that only a common assault had been committed. But the
court was divided, and Williamson v. Button, 3 B. & S. 821, may be consid-
ered a decision contrary to that opinion.

As a general rule the jurisdiction of justices to convict summarily ceases
as soon as a claim of title in himself, CornweU v. Sanders, 3 B. & S. 206
(though only colourable, provided the right claimed be one known to the
law), is bona fide made by the party against whom the proceeding is insti-
tuted, R. V. Cridland, 7 E. & B. 853; Hudson v. McRae, 4 B. & S. 585; where
the claim was made bona, fide, but to a right impossible in law, and a convic-
tion was upheld, followed in Fotdger v. Steadmnn, L. R. 8 Q. B. 65, (disap-
proving of Jones V. Taylor, 1 E. & E. 20), and also in Ilargreaves v. Diddams,
L. R. 10 Q. B. 582. See also Leatt v. Vine, 30 L. J. M. C. 207; CornweU v.
Sanders, 3 B. & S. 206, and Wattins v. Major, L. R. 10 C P. 662, where a
distinction is drawn between conviction under the statutes for the protection
of game and the orcliiu;ry case of a conviction for which it is said to be
necessary to prove a inens rea. The question whether there be such a bo7i^
fide claim of right is a collateral question for the justices to decide, but the
superior court on affidavit will review their decision. See R. v. Stimp^on, i
B. & S. 301, where it was held that there was not, Paley v. Birch,.lQ L. T. N.
S. 410, where it was held that there teas, evidence to justify the infei'ior court
in tinding that the claim was not bonti fide set up. See also Williams v.
Adams, 2 B. & S. 312; Legge v. Pardoe, 30 L. J. M. C. 108; Reg. v. Sandford,
30 L. T. N. S. 601 ; Lovesy v. Stallard, Id. 792.

This rule as to the cesser of the jurisdiction to convict summarily on a
bona fide claim of right being set up is founded not on statute but on
general principles of law. See per Blackburn, J., in CornweU v. Sanders, ubi
sup., per Crompton, J., in P>.eg. v. Stimpson, ubi stip.

There are other similar cases in which restrictions are placed on the
justices' jurisdiction by statute.

In R. V. Nunneley, E. B. & E. 852, an order, made by justices for payment
of a church-rate, under 53 Geo. 3, c. 127, which provides that if the validity
of the rate be disputed, and the party disputing give notice to the justices,
they are to forbear giving judgment thereon, was quashed on affidavits
showing that a reasonable objection had been made to the validity of the rate,
notwithstanding which the justices proceeded with the case, holding, ground-
lessly, that the objection was not made bona fide. Erie, J., said : " Without
coming to the much disputed point whether a fact Avhich is in doubt is one
which affects the jurisdiction in the first instance, or one upon which magis-
trates are to judge, I think this case is clear enough. The jurisdiction of the
justices is to decide whether the rate is made and demanded. But then there
Is a collateral point on which the jurisdiction depends, that is, whether the
validity of the rate is disputed. If it is, the justices are to hold their hands.
That is collateral to the merits ; and a matter on which the jurisdiction
depends. And as laid down in the judgment of Bunbury v. Fuller, 9 Exch.
140, ' it is a general rule that no court of limited jurisdiction can give itself
jurisdiction by a wrong decision on a point collateral to the merits of the
case upon which the limit to its jurisdiction depends.' Then to take the
simplest case : Suppose a judge with jurisdiction limited to a particular
hundred, and a matter is brought before him as having arisen within it, but
the party charged contends that it arose in another hundred, this is clearly a

1004 CRErPS V. DURDEN ET ALIOS.

colhiii-ral matter indcpentlent of the merits; on its being presented, tlie jiuljie
must, not immediately forbear to proceed, but must inf|uire into its trutli or
falsoliood, and for tlie time decide it. and either proceed or not on tlie prin-
cipal subject-matter according as lie llnds on that point; but this decision
must be open to question, and if he has improperly cither foreborne or
proceeded on the main question in consequence of an error, on this the Court
of Queen's Bench will issue its mnndamus or prohibition to correct his
mistake." See further Ex parte Mannerimj , 31 L. J. M. C. l.");5.

Where a statute, 24 & 25 Vict. c. 97, s. 52, enacted that nothing therein
contained should extend to any case where the party acted under a fair and
reasonable supposition that he had a right to do the act complained of " and
the justices found that the appellant did not act under a fair and reasonable
supposition and convicted him, the court upheld the conviction, holding that
the above express provision overrode the proviso usually implied as to sum-
mary convictions, that a bonO. fide claina of right is sullicient to oust the
jurisdiction of the justices." White v. Feast, L. R. 7 Q. B. 353. See this
case, distinguished in Denny v. Thmiites, 2 Ex. D. 21, 4G L. J. Ex. 588, 4G L.
J. M. C. 141.

By 24 & 25 Vict. c. 100, s. 4G, it is provided that justices " shall not hear
and determine any case of assault in which any question shall arise as to the
title to land." Under this section it was held that justices are prohibited
where title is claimed from going into the question of excess of violence and
convicting sununarily upon that. Retj. v. Pearson, L. R. 5 Q. B. 237, 3'J L. J.
M. C. 76.]

Assuming that a defect of jurisdiction may in these cases be shown by
affidavit, every case, or almost c^'cry case of a defect of jurisdiction in the
convicting magistrate or magistrates would be reviewable hy nrtiornri ; for
though it is now usual for the statute creating the ottence to contain a clause
taking away the certiorari, yet such clauses do not, generally speaking, apply
to cases where there was no jurisdiction to convict, such cases not falling
within the act of parliament at all, R. v. Justices of Somersetshire, 5 B. & C.
816 ; R. V. Justices of the West Ridin'j of Yorkshire, 5 T. R. 629 ; R. v. Inhabi-
tants of Great Marlow, 2 East, 244 ; [i?. v. Wood, 5 E. & B^ 49 ; S. C. nom. R.
V. Rose, 24 L. J. M. C. 130; Colonial Bank of Australasia v. Willan, L. R. 5 P.
C. 417, 43 L. J. P. C. 39; Ex parte Bradlaurjh, 3 Q. 15. I). 509] ; nor do they
apply to cases where the conviction has been obtained by fraud, as when a
maltster had by collusion, and for the purpose of exonerating himself from
penalties, under 7 & 8 Geo. 4, c. 53, procured the conviction of his servant, R.
v. Gillyard, 12 Q. B. 527; \_Colonial Bank of Australasia v. Willan, ubi sup.}.
But there is a distinction between cases of a tcant of jurisdiction and an
irregularity in exercising it : in the former case the certiorari lies notwith-
standing the private clause, in the latter it is taken away. R. v. Bristol and
Exeter Rail. Co., 1 P. & D. 170, note, 11 A. & E. 202; R. v. Sheffield and
Manchester Rail. Co., 11 A. & E. 194; [R. v. Justices of Waricickshire, 6 E. &
B. 837; Lalor v. Bland, 8 Irish C. L. K. 115]. In the [first of these] cases,
indeed, the court went to an extent which seemed likely very much to confine
the applicability of the writ of certiorari; they threw out the opinion that in
cases where the proceeding was merely irregular, the clause taking away the
certiorari applied, and that where it was void there was no occasion for it,
and that the court would not grant it. However, in the [second] case, they
appear disposed to i^epudiate the application of this dilemma; at all events,
in cases in which the proceeding sought to be removed is not void on the face

CREPPS V. DUPvDEN ET ALIOS. 1005

of it, but is impugned by affidavit. And in E. v. Cheltenham Paving Com-
missioners, 1 Q. B. 467, it was distinctly lield tliat in a case of malversation
such a clause would not operate.

Though it has been endeavoured to show that the Queen's Bench has a
right in case of defect of jurisdiction to entertain the objection founded upon
such defect on affidavit, yet it must be observed that the court is not bound
to do so upon certiorari; for [except where the application is by the party
grieved, Beg. v. Justices of Sttrrey, L. R. 5 Q. B. 46(5, 39 L. J. M. C. 145,] a
certiorari, as has already been pointed out, is a writ not of right, but in the
discretion of tlie court to grant or to refuse (but see the judgment in Sumonds
V. Dimsdale, 2 Exch. 533). And cases may occur in which, though there may
have been a defect of jurisdiction, still the court may conceive that the
interests of justice would be rather imiieded than advanced by any summary
interference on their part.

In R. V. Justices of Cambridgeshire, 4 B. & Ad. 122, Mr. Justice Pattesou
said, " With regaixl to the objections in point of jurisdiction, I protest
against its being understood that we can on every occasion look into extrinsic
matter on motions to bring up orders by certiorari." " We must be cautious,"
said Mr. Justice Coleridge, "not to exceed our jurisdiction; and when we
find there is a court of appeal below, to which the matter brought before us
on affidavit might have been carried, I think we are confined to objections
appearing on the face of the order."

I do not understand these observations of the learned judges as importing
that there are cases of a total defect of jurisdiction which the Court of
Queen's Bench has no power to entertain on affidavit, but that the leaning of
the court is against doing so, except where public justice would be thereby
furthered. See R. \. Justices of Denbighshire, 1 B. & Ad. 616. See R. v.
South Holland Drainage Committeemen, 1 P. & D. 79; R. v. Manchester and
Leeds Rail. Co., 1 P. & D. 164. And that its disinclination to interfere is
strong and uniform in cases where the legislature has provided another com-
petent tribunal of appeal to which the question might be carried. See R. v.
Justices of Middlesex, 9 A. & E. 548, last point.

In Ex,j)arte Lord Gifford, Carrow's New Sess. Cas. 490, Mr. Justice Williams
refused a certiorari on the ground that if the recognisance sought to be re-
moved were void, the applicant might treat it accordingly. It has not, how-
ever, been usual to refuse the writ for this reason, which since the 11 &, 12
Vict. c. 44, s. 2, prohibiting actions against justices, &c., for anything done
under convictions or orders made without jurisdiction until they have been
quashed, would scarcely be given in answer to an application to bring up a
conviction or order to have them quashed for a defect of jurisdiction.

In R. V. Justices of Cambridgeshire, 3 B. & A. 187, Lord Denmau, in his judg-
ment, suggested another ground on which an application upon affidavit might
possibly be entertained. "I do not say," said his lordship, "that even on
certiorari the court would not set aside an oi'der if manifest fraud were shown.
That may be so. In R. v. Justices of Somersetshire, 5 B. & C. 816, where a
certiorari was applied for to remove an appointment of overseers, on a sug-
gestion of corrupt motives in the appointing magistrates, the court refused a
rule, saying that the parties complaining might appeal to the sessions, or
move for a criminal information. Notwithstanding that refusal, however, I
do not say that if corruption were clearly made out, the court would not,
upon an application like this, declare the order invalidated by the fraud."
This observation of his lordship is consistent with the principle laid down by

lOOG CREi'P.s V. dl'ui»i:n kt alios

De Gi'fy, C. J., in the Diichpss of Kingston's Case, post, i-olnmr 2, wliiTe his
lordship observed that " fraud is an extrinsic collateral act which vitiates
tlje most solemn proceedin<?s of courts of justice." Lord Coke says, " it
avoids all judicial acts, ecclesiastical or temporal." [See Sheddun v. Patrick,
1 Macq. H. of Lords C. 535; and the nullity of the judtjmcnt or decree ob-
tained by it, tliough tiie judj^jment or decree has not been set aside or reversed,
may I)e allei^ed in a collateral proceeding, see tlie opinion of Willes, J., in li.
V. SadJU'i-'s Co., 3 LI. & El. 42, 10 H. of L. Cas. 404, 32 L. J. Q. B. 347]. Anil
see R. V. Gillyard, [12 Q. B. 527,] wliere fraud being shown, a conviction ob-
tained by means thereof was i)rought up by cirtiornri and (luashed, [and
Colonial Dank of Australasia v. Willan, L. R. 5 P. C. 417, 43 L. J. P. C. 39].

Ihnvever, where the justice or justices had jurisdiction, the court will not
graTit a certiorari to remove the conviction or order upon a suggestion nuide
by atlldavit that they liave exercised the jurisdiction wrongly : A', v. Justices
of Cheshire, 1 P. & I). 88, 8 A. & L. 308; R. v. St. James's, Westminster, 2 A.
& E. 241 ; for that woulil be to substitute tlie court al)ove for the tribunal to
which the statute luis committed tlie imiuiry.

[So, in ettect, justices were often obliged to determine linally dillicult points
of law on (juestions of great general importance, willioul having sullicienl
materials, or time, for the purpose, and they could not olitain for their guid-
ance any assistance by waj' of opinion, or decision, from tlie superior courts,
see R. V. Dayman, 7 E. & B. C72; R. v. Paynter, Ihid. 328. This defect in the
law has been remedied by the Justices' Special Case Act, 20 & 21 Vict. c. 43,
by wliich magistrates are enaijled, and may be compelled, to state cases for
the opinion of any of tlie superior courts, and also by the Summary Jurisdic-
tion Act, 1879, sect. 33, which gives a furtiur |)ower of stating a case for the
opinion of tlie High Court of Justice.

Tlie 2nd section of 20 & 21 Vict. c. 43 provides tliat after tiie hearing
(Bradshaw v. Vaughton, 30 L. J. C. P. 93) and determination {Davys v. Doug-
las, 4 H. & N. 183; S. C. 28 L. J. M. C. 193) l)y a justice or justices of any
information or complaint tchich they havepower to determine summarily ) To'cn-
send V. Reed, 10 C. B. N. S. 308; Ex parte May, 2 B. & S. 42(5, 31 L. J. M. C.
161; Luton Local Board of Health v. Davis, 2[) L. J. M. C. 173; Diss Urban
Sanitary Authority \. Aldrich, 2 Q. B. D. 179, 4(; L. J. M. C. 183; Snndgate
Local Board v. Pledge, 14 Q. B. D. 730; either party to tlie i)roceeding may,
if dissatisfied with the determination {Davys \. Douglas),as erroneous in point
of laic {Xeicman, app., Baker, resp., 8 C B. N. S. 200; Taylor v. Smart, 31 L.
J. M. C. 252; llargreaves v. Taylor, 33 L. J. M. C. Ill ; JlohJ.s v. Dance, L. R.
9 C. P. 30), apply in writing within three days {Mayer v. Harding, L. R. 2 Q.

B. 410), to the justice or justices, to state and sign a case, setting forth the
facts, and the grounds of the determination, for the opinion of any one of
the superior courts of law.

Within three days after receiving the case llie api)ellant is to transmit it
{Banks v. Goodwin, 3 B. & S. 548, 32 L. J. Q. B. 87; Pennell v. Uxbridge, 31
L. J. M. C. 92 ; Local Board, dr., of Gloucester v. Gardner, 32 L. J. M. C. G6) to
the court named in his application, first giving {Ashdoion v. Curtis, 31 L. J.
M. C. 216) written notice of tlie appeal {Crick v. Ockmand, Q. B. 17 Jan.
1863) , with a copy of the case so written and signed, to the other party.

(As to these conditions to the right of appeal, see Peacock v. The Queen, 4

C. B. N. S. 264; Morgan v. Edwards, 5 II. & N. 415; Syred v. Carruthers, E.
B. & E. 469; Woodhouse v. Wood, 29 L. J. M. C. 149; G. N. R. v. Inett, 2 Q.
B. D. 284, 46 L. J. M. C. 237, 46 L. J. Q. B. 749. )

CREPl'S V. DUllDEN ET ALIOS. 1007

By sect. 3 the appellant on applying for the case {Chapman v. Robinson, E.
& E. 25 ; Stanhope v. Thorsby, L. R. 1 C. P. 423, 35 L. J. M. C. 182) must enter
into a recognizance {Stanhope Thorsby, ubi. sup.) and pay cei'taiu fees, and
then upon a condition being added to the recognizance for his appearance
before the justices to abide by their judgment if unreversed, he will, if in
custody, be entitled to his liberty.

By sect. 4 the justices, if of opinion that the application is merely frivolous
(and provided it Avas not directed by the attorney-general) , may refuse to
state the case; but then by sect. 5, the Court of Queen's Bench (now repre-
sented by the Queen's Bench Division of the High Court of Justice, under
sect. 34 of the Judicature Act, 1873), may grant a rule calling upon them and
the respondent to show cause why they should not do so, and may make the
rule absolute, or discharge it with or without costs.

By sect. 6 the court to which the case is transmitted may hear and deter-
mine the questions of law arising upon it {Gocernors, &c., of St. James's, West-
minster v. Battersea, Overseers of, C. P. 6 Jur. IST. S. 100; Jones v. Taylor, 1
E. & E. 20, even on points not taken before the justices. Knight v. Ilalliwell,
L. 11. 9 Q. B. 412), and I'everse, affirm, or amend the determination, or remit
the matter to the justices with the opinion of the court, or may make such
other order in relation to the matter (Shackell West, 29 L. J. M. C. 45), and
such orders as to costs (Biidcnberg v. Roberts, L. R. 2 C. P. 292; Garnett v.
Backhouse, L. R. 3 Q. B. G99), as to the court shall seem fit; and all such
orders are final and conclusive on all parties. The same section provides that
the justices are not to be liable for any costs of the appeal. (As to the costs
of the appeal, see Venables \. Hardman, E. B. & E. 79.) Costs are granted
even though the case be struck out on account of the failure of the appellant
to transmit the case within three days, G. N. B. v. Inett, 2 Q. B. D. 284, 4G L.
J. M. C. 287, disapproving Peacock v. The Queen, 4 C. B. N. S. 264 ; and see
Crowther v. Boult, 13 Q. B. D. 680.

By sect. 7 the case may be remitted to the justices for amendment, Christie
V. Guardians of St. Luke's, 8 E. & B. 992; Yoi'kshire Tire and Axle Co. v.
Rotherham, &c., 4 C. B. N. S. 362; Rider v. Wood, 29 L. J. M. C. 1.

By sect. 8 the powers given to the superior court may be exercised by a
judge of tlie court sitting in chambers in term time or in vacation. Sect. 9
authorises the justices to enforce any conviction or order affirmed, amended,
or made by the superior court, and exempts them from liability by reason of
any defect in such conviction or order; see Waller v. G. W. Rail. Co., 29 L.
J. M. C. 107. By sect. 10 no certiorari or other writ is required for the re-
moval of the conviction, order or determination, in reference to which the
case is stated. Sect. 11 enables the superior courts to make rules for the
practice and proceedings under the act. Sect. 13 relates to recognizances
taken under the act, and sect. 14 deprives parties who appeal under the act,
of their appeal to quarter sessions.

The Court of Common Pleas have held that the act does not apply to a
decision of justices called in to decide a dispute under the Friendly Societies
Acts, it having been enacted by 18 & 19 Vict. c. 63, s. 40, that such a decision
shall be binding and conclusive on all parties. See Callaghan v. Dolioin, L. R.
4 C. P. 288, 38 L. J. M. C. 110, overruling Beg. v. Lambarde, L. R. 1 Q. B. 388.

The fact of another appeal being given by statute does not exclude this
act, Poioer v. Wigmore, L. R. 7 C. P. 386.

By the Summary Jurisdiction Act, 1879, 42 & 43 Vict. c. 49, s. 33, it is
further provided that " (1) Any person aggrieved who desires to question a

1008 citKiM's \. i>ii:i»KN i;r alios.

conviction, order, liPti^nninftlion, or other proceed imj {SniKfi/iite Loral Board v.
Pledije, 14 Q. B. I). 730) of a fourt of snmiimry jurisdiction on tlie ^rouiul
that it is erroneous in point of law, or is in exress of tlie Jurisdietlon, may
apply to the court {Ex parte Curtiif, '.i Q,. li. I). 13) to state a special cusc set-
tin}^ fortii tlie facts of tlie case and tlie {grounds on wliicli tlie proceeding is
questioned, and if tlie court decline to state the case, may apply to the llijrh
Court ()f Justice for an order re(|uiniij? the case to be stated. (2) The appli-
cation shall he made and the case stated within such time antl in sucli numner
as may l)e from tiuie to time directed by rules under this act, and the case
shall iu' heard and determined in manner prescribed by rules of court made in
pursuance of ' The Supreme Court of .Judicature Act, lH7"i,' and the acts
amendini; the same; and subject as aforesaid, the act of" 20 & 21 Vict. c. 43,
above stated, "shall, so far as it is applical)le, apply to any special case
stated under this section, as if it were stated under that act.

" Provided that nothins; in this section shall prejudice the staleiuenl of any
special case under that act."

By Uulc 18 of tlie Summary .lurisdiction Uules, IHSC, made in pursuauce of
the above section, " An a|)plication to a court of summary jurisdiction " under
that section " to state a special case sliall be made in writinj;, and a coi)y left
witli the clerk of the Court, and may be made at any time within seven dear
days from the date of the proceedini; to be questioned, and the case shall be
stated within three calendar months after the date of the application, and
after the recoi^nizance shall have been entereil into." (See the rules set out
in exttnso iu the Weekly Notes, October Uth, 1«8G.)]

JURISDICTION AND ATTACKING .ILDO.MHNTS COLLATKK.VLLV.

While the jiule^ments of any cmtrt, whether of superior or of
inferior jurisdiction, nuiy, under <'tMt;iin circumstances, be at-
tacked collaterally, for want of jurisdiction on the part of the
court rendering the judgment, nevertheless the judgments of
superior courts stand upon a very different footing from the
judgments of inferior courts in this regard.

Although the judgments of courts, whether of superior or in-
ferior jurisdiction, import, for most purposes, absolute verity,
and are conclusive between the parties as to the points ad-
.judicated, this is true sitbject to the condition that the court
assuming to act had jurisdiction not only of the subject-matter
of the controversy, but also of the persons of the parties.

The Distinction between Courts of Superior and those of Inferior

Jurisdiction.

It is not easy to state any general rule by which courts of
inferior may be distinguished from those of superior jurisdic-

CREPPS V. DURDEN ET ALIOS. 1009

tion. The distinction is often stated to be tliat between courts
of record and tliose not of record ; and the rules conform sul>
stantially to this view. But the terms "inferior" and "supe-
rior " are more commonly used in the cases.

The terms " limited " and " general " are often used to dis-
tinguish the kind of jurisdiction of certain courts. Indeed, the
terms are not infrequently used interchangeably with the terms
"inferior" and "superior." In this use the terms are by no
means accurately applied; e.g., iis we shall see, the United
States Circuit and District Courts are of limited thousrh of
superior jurisdiction. The terms are also productive of confu-
sion in this, that even superior courts of a general jurisdiction
are, when exercising their powers for some special and limited
statutory purpose, in the same, or nearly the same, position as
to supporting presumptions, &c., as inferior courts. It will not
be attemj)ted to formulate in this note a general rule, or to go
into any full discussion regarding the distinctions. The dis-
tinction which is perhaps the most obvious of all is that be-
tween courts which are of record and those which are not. Cf.
Turner v. Malone, 24 S. C. 398 ; Epping v. Robinson, 21 Fla. 36,
and many cases. This, however, fails to meet all the cases. In
Texas the distinction has been drawn as between courts the
powers of which are established by the Constitution of the
State, and those which owe their existence to special acts ;
Williams v. Ball, 52 Tex. 603 ; Holmes v. Buckner, 67 Tex.
107 ; these courts are also courts of record.

The following rule of distinction is stated in Freeman on
Judgments (3d ed.), section 122 : " The next matter to be
ascertained is whether the judgment was rendered by a court
of general or of special jurisdiction. There is no well-defined
test by which to determine in all cases whether a court belongs
to the one class or to the other. But all courts invested with
a general common-law jurisdiction, in law or in equity, are,
when exercising such jurisdiction, properly included in the first
class ; while all such courts as are erected upon such principles
that their judgments must be disregarded until proceedings
conferring jurisdiction are shown, belong to the second class.
. . . The use of the words 'superior' and 'inferior,' or 'limited'
and ' general,' however apt they may have once been, are less
so at this time and place ; and their duties, in view of our
system and mode of procedure, would be better performed by

1010 CKEl'l'S V. DUKDEN ET ALIOS.

the terms 'courts of record,' and 'courts and tribunals not of
record.' "

We have retained the terms "superior" and "inferior,"
simply because the terms seem to be of most common use
in the books and cases. Avoiding discussion of the theo-
retical distinctions, the following decisions have been
reached : —

Beside state supreme court^s and other court^i of a similar
character, when they act under general powers, the folhnving
have been declared to be superior courts : —

United States circuit and district courts. — It is now well
settled that those courts, though of limited, are also of superior
jurisdiction. See language in Turner v. Bank of North Amer-
ica, 4 Dall. 8; Mason v. Tuttle, 75 Va. 105 (Limited Act).
See Pearce v. Winter Iron Works, 32 Ala. 68; Chemung Canal
Bank v. Judson, 4 Seld. 254 ; Kempes Lessee v. Kennedy, 5 Or.
185; Baldwin v. Hale, 17 Johns. 272; Wood r. Mann, 1 Sumn.
680; Griswold v. Sedgwick, 1 Wend. 131; Skillerns Ex'rs v.
Mays Ex'rs, G Cr. 2(;7 ; iV parte Watkins, 3 Pet. 193 ; Ken-
nedy V. Georgia Bank, 10 How. U. S. 58(3 ; McCormick v. SuUi-
vant, 10 Wheat. 192; Wright v. Marsh, 2 Greene (la.) 94;
Turrell v. Warren, 25 Minn. 9 ; Williamson's Case, 26 Pa. St. 9.
But see Boisse v. Dickson, 31 La. Ann. 741 ; Morse v. Presbey,
25 N. H. 299. These latter cases mainly depend upon the fact
that the court rendering the judgment was acting under special
and limited acts, as, for instance, the bankrupt laws.

County courts. — As a rule, it is held that the county courts
in the various states, where they are courts of record, are
courts of general jurisdiction ; Propst v. Meadows, 13 111. 157.
The English county courts established, and their powers de-
fined by special act of Parliament, are within the same rule ;
Levy V. Moylan, 10 C. B. 189 ; Houlden v. Smith, 19 L. J.
N. S. Q. B. 170. County courts in Florida are courts of record ;
Epping V. Robinson, 21 Fla. 36. County courts of common
pleas in Tennessee are courts of general jurisdiction and are
courts of record ; Pope v. Harrison, 16 Lea (Tenn.) 82. See,
also, Bannard v. Banuard, 119 111. 92 ; Lessee of Grignon v.
Astor, 2 How. 319.

The following courts have been generally held to be, in the
particular states where they are held, of inferior jurisdic-
tion : —

CREPPS V. DUEDEN ET ALIOS. 1011

Courts of justices of the peace. — ■ See for dicta and decisions :
Mudge V. Yaples, 58 Mich. 307 ; White v. Morse, 139 Mass.
162 ; People v. Jarrett, 7 111. App. 566 ; Knell v. Briscoe, 49
Md. 414; Londegan v. Hammer, 30 la. 508 at p. 512; Morton
V. Crane, 39 Mich. 526. See Tyler v. Alford, 38 Me. 530;
Tompkins v. Sands, 8 Wend. 462 ; Armstrong v. Campbell, 1
Brev. Pt. II. p. 259 ; McCkire v. Hill, 36 Ark. 268 ; Wise v.
Withers, 3 Cr. 331 ; Clark v. Holmes, 1 Doug. (]\Iich.) 390 ;
Piper V. Pearson, 2 Gray 120; Clark v. May, 2 Gray 410;
Sullivan v. Jones, 2 Gray 570 ; Bigelow v. Stearns, 19 Johns.
39 ; Estopinal v. Peyroux, 37 La. Ann. 477 ; Wright v. Rouss,
18 Neb. 234 ; Little v. Moore, 1 South. 74 ; Cunningham v.
Pacific Ry., 61 Mo. 33 ; Evans v. Pierce, 2 Scamm. 468 ; Par-
don V. Divine, 23 111. 572 ; Anderson v. Miller, 4 Blackf. 417 ;
Wood V. Wood, 78 Ky. 624 ; Clark v. Holmes, 1 Doug. 390 ;
Camp V. Wood, 10 Watts 118 ; Bersh v. Schneider, 27 Mo. 101 ;
Thomas v. Robinson, 3 Wend. 267. It was held in Hofheimer
V. Losen, 24 Mo. App. 652, that where a judgment of a justice
of the peace of Illinois was offered in a Missouri court, the law
giving the justice jurisdiction must be proved.

The contrary view has been taken, however, in some states,
as a rule, owing to the fact that the courts were of record.
In some of the cases the courts are not of record, but their
judgments are viewed with the same supporting presump-
tions ; Billings V. Russell, 23 Pa. St. 189; Clark v. M'Com-
man, 7 W. & S. 469 ; Fox v. Hoyt, 12 Conn. p. 497 ; Wright
V. Hazen, 24 Vt. 143 ; Turner v. Ireland, 11 Humph. 447 ;
Stevens v. Mangum, 27 Miss. 481 ; Williams v. Ball, 52 Tex.
603; Holmes v. Buckner, 67 Tex. 107; Haylett v. Ford, 10
Watts 101.

Probate courts, surrogates' courts, and orphans' courts. — These
courts are commonly regarded as of inferior, or, at least, limited
jurisdiction. Of. Forbes v. Battle, 13 S. & M. 133; Smith v.
Rice, 11 Mass. 506 ; Rea v. M'Eachron, 13 Wend. 466 ; Atkins
V. Kinnan, 20 Wend. 241 ; McKee v. McKee, 14 Pa. St. 231 ;
M'Pherson v. Cunliff, 11 S. & R. 422 ; Brodess v. Thompson, 2
Harr. & Gill 120 ; People v. Corlies, 1 Sandf. 288 ; Jenks v.
Howland, 3 Gray 536 ; Flinn v. Chase, 4 Den. 85 ; Culver's
Appeal, 48 Conn. 165. But see, semhle contra Inco v. Com-
mercial Bank, 70 Cal. 339 ; Key v. Vaughan, 15 Ala. 497. Con-
sult Canfield v. Sullivan, 85 N. Y. 153. But see Hess v. Cole,

1U12 ci:ki'1*.s v. i>ui:ui:n kt alios.

3 Zab. (Ltuv) 110; Miittt!r of Flalbush AsumiL-, 1 Barb. 286;
Anderson v. Miller, 7 lUack. 417; (Corliss v. Corliss, 8 Verm.
373 at p. 389; Enos v. Sniitli, 7 S. & M. 85; Grilliths Atha. v.
Yertner, 5 How. 73<). In IV-nnsylvania and Alabama, orplians'
courts are courts of record and would seem to stand nearly on
the same basis as to presumptions, &c., as other courts of
superior jurisdiction. Freeman on JudMinents (3 ed.) section
122. The probate courts in Arkansas, Minnesota, Missouri,
South Carolina, and California stand upon a similar basis, as
being courts of record; Dayton v. Mintzer, 22 Minn. 393;
Johnson v. Beazely, 05 Mo. 250 ; McCauley v. Harvey, 49 Cal.
497. See State of Ohio v. Hinchman, 27 Pa. St. 479 ; Turner v.
Malone, 24 S. Car. 398. .

Courts martial. — See Dynes i'. Hoover, 20 How. (U. S.) 65.

Mayors' courts in England. — M'Dauiel V. Hu^heS, 3 East 367;
Westoby v. Day, 2 E. & B. 603 ; Fisher v. Lane, 3 Wils. 297. The
ireneral lesult of the cases seems to be that tlie main distinction
between courts of ditl'erent grades of jurisdiction depends upon
the question whether the court under consideration has a
general common law or e(iuity jurisdiction, or whether its pow-
ers are limited and de lined by a statute creating it.

It is not of importance that the general common law or
equity jurisdiction is limited to particular classes of persons
and circumstances, as is the case with the United States courts.
Nor is it of importance that the jurisdiction is limited by the
amount in controversy, as is the case with most of the county
and similar courts. If the court is one possessing general com-
mon law or equity powers, even thougli conferred by statute,
the court will be one of general and superior jurisdiction, and
its judgments will be supported by the presunqjtions attending
the judgments of superior courts, and will be conclusive in the
same respects. If, on the other hand, the court is one of
limited or limited statutory jurisdiction, the court will be re-
garded as an inferior one, and the effect of its judgments will
be limited, in certain respects. As we have seen, these general
conclusions are subject to man}- modifications in the different
jui-isdictions. The tendency of modern decisions seems to be
toward doing away with the distinctions pointed out, but, for
the present the distinctions seem to be too well grounded in
the cases to be successfully attacked.

CREPPS V. DUKDEN ET ALIOS. 1013

II.

Attaching Judgments of Courts of Superior Jurisdiction
collaterally.

(cC) Presumptions as to records of superior courts, where the
courts act -within their ordinary limits of jurisdiction. — The rec-
ords of superior courts are always supported by the presump-
tion that whatever was done by them in the course of the
exercise of their powers, was rightly done. Consequently
the rule is now Avell settled that where a judgment or decree
of a court of superior jurisdiction is brought up collaterally in
other proceedings, it will be, prima facie, sustained by the pre-
sumption of ofune rita acta. This is true even where the record
does not affirmatively show that the court obtained jurisdiction
of the parties or of the subject-matter, where the court acts
under general powers ; Ferguson v. Crawford, 86 N. Y. 609 ;
Pennington v. Gibson, 16 How. 65; Peacock v. Bell, 1 Saun-
ders 73 ; Turrell v. Warren, 25 Minn. 9 ; Venable v. McDonald,
4 Dana 336 ; Wright v. Watson, 11 Humph. 529 ; Hall v. Law,
2 W. & S. 135 ; Bridgeport v. Blinn, 43 Conn. 274 ; Board of
Commrs. v. Markle, 46 Ind. 96 ; Dwiggins v. Cook, 71 Ind. 579;
Clark V. Sawyer, 48 Cal. 133 ; Folger v. Columbian Ins. Co., 99
Mass. 267 (273) ; Lockwood v. State, 1 Carter 161 ; Galpin v.
Page, 18 Wall. 350 ; Yates v. Lansing, 5 Johns. 282 ; Chemung
Bank v. Judson, 4 Seld. 254; Hart v. Seixas, 21 Ward 40;
Wright V. Douglas, 10 Barb. 97 , Tallman v. Ely, 6 Wis. 244 ;
Huntington v. Charlotte, 15 Vt. 46; Wright v. Marsh, 2
Greene 94.

"It is undoubtedly true that a superior court of general
jurisdiction, proceeding within the general scope of its powers,
is presumed to act rightly. All intendments of law in such
cases are in favor of its acts. It is presumed to have jurisdic-
tion to give the judgments it renders until the contrary ap-
pears. And this j)resumption embraces jurisdiction not only
of the cause or subject-matter of the action in which the judg-
ment is given, but of the parties also."

Field J. in Galpin v. Page, supra, at p. 365. Where, how-
ever, the record of a superior court affirmatively, and on its face
shows that there was a want of jurisdiction, the judgment may
be attacked collaterally, even in the jurisdiction where it was

1014 CKEIM'S V. DIKIMON KT ALIOS.

rendered, and this where the party relying upon the judgment
pleads it, and the adverse party relies upon a plea amounting
to mil tlel record; Wright v. Boynton, 37 N. H. 9; Judkins v.
Union Mutual Ins. Co., 37 N. H. 470 ; Thurber v. Blackburne,
1 N. H. 242; Hall v. Williams, 6 Pick. 232 (247); Smith v.
Smith, 17 111. 482. See Holt v. Alloway, 2 Blac-kf. (Ind.) 108;
Welch V. Sykes, 3 Gilm. 197 ; Reed v. Wright, 2 Greene
(la.) 15.

In Buchanan v. Port, 5 Ind. 204 and Davis v. Lane, 2 Ind.
548, it was held that a plea amounting to an attack upon the
record of the former judgment was not effectual.

(ft) Affirmative finding of jurisdictional facts in the judgment,
decree or findings of a superior court . —

(1) "Where the judgment questioned collaterally is a domestic
one. — It is now well settled that where a superior court of the
dt)mestic jurisdiction alhrmatively passes upon the jurisdictional
facts, and this fact is shown by its record, such a finding cannot
be collaterally questioned.

This is often spoken of as an instance of tlie operation of a
conclusive presumption. It is conceived that this is not an
accurate statement of the theory of law. It does not belong
to the presumptions at all, but is simply and purely a positive
rule of law. A presumption is a rule of evidence, — an intend-
ment of law which, in certain circumstances, excuses a party
from producing evidence. The rule here is simply a branch
of the general rule that where a superior court passes upon any
fact within the general scope of its powers, such action is bind-
ing upon parties to the action and those claiming under them,
and becomes res ailjiidicata from thenceforward. Its action is
subject to review only upon appeal or proceeding in error, or,
in certain instances, in equity actions to set aside the judgment ;
Gi-anger v. Clark, 22 Me. 128 ; Peck v. Woodbridge, 3 Day 30 ;
Sims V. Slackum, 3 Cranch 300 ; Cook v. Darling, 18 Pick.
393 ; Richards v. Skiff, 8 Ohio St. 586 ; Grignon's Lessee v.
Astor, 2 How. 319 ; McCauley v. Fulton, 44 Cal. 356 ; Pritch-
ard V. Madren, 24 Kas. 486 ; Safferans v. Terry, 12 S. & ^NI.
690; Barnett v. Wolf, 70 111. 76; Searle v. Galbraith, 73 111.
269 ; Case of Sheriff of Middlesex, 11 Ad. & El. 273 ; State v.
Tipton, 1 Black 166 ; State v. Woodfin, 5 Ired. 199 ; Anderson
V. Wilson, 100 Ind. 402 ; White v. Crow, 17 Fed. R. 98 ; Mack
V. Ins. Co., 4 Hughes C. C. 61 ; Hunter v. Stonebruner, 92 111.

CREPPS V. BURDEN ET ALIOS. 1015

75, Li re Fernandes, H. & N. 717; Burdett v. Abbott, 14 East
1, semhle accord. Cooper v. Sunderland, 3 Clarke 114 ; People
V. Kelly, 24 N. Y. 74 ; Commonwealth v. Newton, 1 Grant 453.

The return by an officer of proper service, when made a part
of the judgment roll, will be conclusive ; Brown v. Turner, 11
Ala. 752 ; Lightsey v, Harris, 20 Ala. 409. In Callen v. Ellison,
13 Ohio St. 446, a record of a judgment was produced in a
collateral proceeding. The record showed that certain defend-
ants had confessed judgment by their attorney. It was sought
to be shown that the power of attorney on file did not purport
to be signed by some of the defendants. It was held that, in
a domestic proceeding such evidence could not be received to
impeach the record collaterally. Cf. Wetherill v. Stillman,
65 Pa. St. 105 ; Tant v. Wigfall, 65 La. 412; Lapham v. Briggs,
27 Vt. 26 ; Pritchett v. Clark, 5 Harr. 63 ; Latterett v. Cook, 1
Clarke (Iowa) 1 ; Westcott v. Brown, 13 Ind. 83 ; Rocco v.
Hackett, 3 Bosw. 579. But see Shumway v. Stillman, 6 Wend.
442 (452) ; Black v. Black, 4 Bradf. 174 ; Bissell v. Wheelock,
11 Cush. 277. The general rule was affirmed in Walbridge v.
Hall, 3 Vt. 114 ; Burt v. Delano, 4 Cliff. 611 ; Dunham v. Vil-
fong, 69 Mo. 355 ; Turrell v. Warren, 25 Minn. 9.

(2) Where the judgment sought to be questioned collaterally
is a foreign one, or that of a superior court of another state. —
The judgments of the courts of the different states, when
brought forward in states other than those in which they are
rendered are not, in strictness, foreign judgments in the sense
that judgments rendered by the tribunals of other countries
are foreign. Section 1 of Article 4 of the Constitution of the
United States, declares that " Full faith and credit shall be
given in each state to the public acts, records, and judicial
proceedings of every other state," &c. Nevertheless, the courts
in many states have held that this did not prevent the
courts of other states, when a judgment even of a superior
court of a sister state, was set up as a basis of rights or
claims, from inquiring, in certain cases, into the jurisdiction of
the court which rendered the original judgment.

It is beyond the scope of this note to go into the general
subject of methods of obtaining jurisdiction, but perhaps a
restricted treatment will be pertinent. The plainest form in
which the question arises, is, where there is apparent on the
record an attempt on the part of the tribunals of one state,

1016 cuKi'i's V. ijuudi:n i.r alios.

to exercise juiisdii-tioii outside of the borders of such state — to
obtain jurisdiction, say, of a non-resident person without at-
tachment or personal notice, and without jurisdiction in rem of
the sufficiency of the service the legishiture of a state is not
the sole judge. "'' The autliority of every tribunal is necessa-
rily restricted by the territorial limits of the state in which it
is established. Any attempt to exercise authority beyond
those limits would l)e deemed in every other form, as has been
said by this court, an illegitimate assumption of power, and be
resisted as mere abuse."

In personal actions jurisdiction, to be of extra-territorial
validity, must be by voluntary appearance, by personal service
within the state, or, in a limited degree, by attachment ; Pen-
noyer v. Neff, 95 U. S. 714; ITArcy v. Ketclium, 11 How. 165;
St. Clair v. Cox, 106 U. S. 350; BoswcU's Lessee v. Otis, 9
How. 336 J Eliot v. McCormick, 144 Mass. 10, and many cases.
In like manner, the jurisdiction obtained by attachment is valid
in a personal action, only to the extent of the property subject
to the control of the sovereignty wherein the attadicd goods
are found. It will not furnish a basis for an action on the judg-
ment in aiu)tlu'r state; Kil])urn v. Woodworth, 5 Johns. 37;
Robinson r. Ward, 8 .Johns. 86; Downer v. Shaw, 22 N. H. 277;
Phelps V. Holker, 1 Dallas 261; Kibbe v. Kibbe-Kirby, 11!»;
Bissell V. Briggs, 9 Mass. 462.

Jurisdiction of a foreign corporation cannot be obtained by
service upon one of its officers, in a state where it has no place
of business. A judgment so obtained is open to collateral
question in another state ; Moulin v. Insurance Co., 4 Zab. 222.
See M'Quen v. Middletown Man. Co., 16 Johns. 5, dictum;
Bushel V. Commonwealth Ins. Co., 15 S. & R. 173 (176) ; Rid-
dlebrooks v. Springfield Fire Ins. Co., 14 Conn. 301 ; Libby v.
Hodgdon, 9 N. H. 394 (396) ; Peckham v. North Parish, 16
Pick. 274 (286).

It has been held that, upon a suit upon the judgment of one
state in the courts of another, the defendant may deny the
authority of the attorney who appeared for him. (See for
cases) Beltzell v. Nosier, 1 Clarke 588. In Gleason v. Dodd, 4
Mete. 333, (decision per Shaw, C. J.) in an action in Massa-
chusetts upon a judgment of a superior court of Maine, it was
held that, although the record recited an appearance by the
iudgment debtor in the Maine suit, this might be contradicted.

CREPPS Y. DUEDEN ET ALIOS. 1017

The underlying principle of this decision seems to be that
while full faith and credit is to be given in one state to the
judicial acts of another, this will not preclude the courts of the
state where the record is produced from inquiring in every
case, whether the sovereignty which assumed jurisdiction had
in truth the jurisdiction which it assumed. See Carlton v.
Bickford, 13 Gray 591 ; Norwood v. Cobb, 15 Tex. 500 ; Fos-
ter V. Glazener, 127 Ala. 391 ; Graham v. Spencer, 14 Fed. R.
603 ; Wood v. Wood, 78 N. Y. 624 ; Cross v. Cross, 108 N. Y.
628. But see Bimeler v. Dawson, 4 Scarm. 541 ; Pringle v.
Woolworth, 90 N. Y. 502. The case of Borden v. Fitch, 15
John's B. 121 sustains the same principle, viz., that a decision
of a jurisdictional fact decided in favor of the jurisdiction,
in the tribunal — here the legislature — of one state, is not con-
clusive when the judgment is questioned in another state.
United States courts of the same district, as that of the
state in which the judgment of the former is relied on, are,
perhaps, not foreign to the tribunal of the state within this
rule. See Turrellv. Warren, 25 Minn. 9; Chemung Canal
Bank v. Judson, 4 Selcl. 254. But see . Boisse v. Dickson,
31 La. Ann. 741.

Where a judgment obtained in one country is sought to be
made the basis of rights in another and foreign one, the juris-
diction may always be made the subject of inquiry, whether
the defect appears upon the face of the record or not. Bu-
chanan V. Rucker, 9 East 192 ; Reynolds v. Henton, 3 C. B. 186;
Cowan V. Braidwood, 1 M. & Gr. 882 ; Ferguson v. Mahon, 11
Ad. & E. 179 ; Douglas v. Forrest, 4 Bing. 686 ; Sheehey v.
Professional Life Assurance Co., 3 C. B. N. S. 597 ; Bank of
Australia v. Nias, 16 Q. B. 717 ; Meens v. Thellusson, 8
Exch. 638.

The. presumption of regularity in the proceedings of supe-
rior courts will always furnish jjrimd facie evidence of jurisdic-
tion, where the contrary does not appear — this in suits in states
other than those in which the judgment was recovered, as well
as in the domestic tribunal ; Hatcher v. Rocheleau, 18 N. Y. 86 ;
Bimeler v. Dawson, 4 Scarra. 541. See as to the judgment
of United States courts ; Pearce v. Winter Iron Works, 32 Ala.
68 ; Wright v. Marsh, 2 Greene (la.) 94.

(e) "Where the defect of jurisdiction appears upon the face
of the record. — Where the record affirmatively shows a defect

1U18 CREl'PS V. DUUDEX ET ALIOS.

of jurisdiction, tlie judgment, even of a superior court, may
always, both at home and abroad, he attacked coUaterally.
This is true whether, as in Crepps v. Durden, the jurisdictional
defect is one which arises from a mistake in going beyond the
scope of the law by the court, or is due to a failure to obtain
jurisdi(;tion of the person of the defendant; Lessee of Moore v.
Starks, 1 Ohio St. 3G0 ; HoUingsworth v. Barbour, 4 Pet. 40G;
AVcbster v. Reid, 11 IIow. 437 ; Shrivers Lessees r. Lynn, 2
How. V. S. 43, dictum; Clark v. Bryan, 1(3 Md. 171 ; Mcssinger
V. Kintner, 4 Birm. 97 ; Bal)bitt v. Doe, 4 Ind. 35"> ; Lamar v.
Comnn-s., 21 Ala. 772; Dempster v. Purnell, 3 M. A: (ii-. 375;
Coan V. Clow, 83 Ind. 417.

(c?). Where superior courts act outside of their ordinary general
jurisdiction, under special statutory powers. — It seems to be the
weight of authority that when a court of superior jurisdiction
acts under a special act, and for a special and limited purpose,
the courts, even of the domestic jurisdiction, will not call forth
the ordinary presumptions in favor of jurisdiction. Comi)liance
with the statute nnist be shown of record, or the judgment,
when (picstioiied coUaterally, will be treated as a nullity. The
cases show many modifications of this general proposition.
The principle itself is, pciha})s, in fact, a survival of the tradi-
tions of the old courts, in which every encroachment of the
legislative branch of government upon the domain of the com-
mon law was viewed with jealousy. It is, perhaps, peculiarly
out of place in code states where, as a rule, the powers and
jurisdiction of all courts are largely defined Ijy statute. Never-
theless, the principle is frequently asserted, in spite of the
fact that it is, in many specific instances, disregarded in prac-
tice. The numerous modifications of the rule are beyond the
scope of this note. " Where a statute prescribes a new pro-
ceeding, whether unknown to the common law or contiary
thereto, the statute, so far, at least, as those parts essential to
the jurisdiction are concerned, must not only be proved, hut
shou'7i to have been strictly jjursued, or the proceedings will be a
nullity." Whyte, J., in Earthman v. Jones, 2 Yerg. 484, (493).
In accord, Foster v. Glazener, 27 Ala. 391 ; Thatcher v. Pow-
ell, 6 Wheat. 119 ; Cone v. Cotton, 2 Blatchf . 82 ; 11 Phil, on
Ev. (Cowen & Hill's Notes) 2d ed. p. 906, note 637 ; Commrs.
V. Thompson, 15 Ala. 134 ; Bridge v. Ford, 4 Mass. 641 ; Per-
rine v. Farr, 2 Zab. 356 ; Queen v. Bloomsbury, 4 E. & Bl. 520 ;

CREPPS V. DUEDEX ET ALIOS. 1019

Webster v. Reed, 11 How. 437 ; City of St. Louis v. Gleason, 93
Mo. 33.

Where a judgment in New York in partition was questioned
collaterally in a New York court, the statute providing a
specific method by which unknown parties could be served, and
the record did not affirmatively show full compliance, the court
held that no presumptions could be called in to support the rec-
ord; Denning v. Corwin, 11 Wend. 647. As to the general
principle, see M'Kim v. Mason, 3 Md. Ch. 186; Matter of Un-
derwood, 3 Cow. 59 ; Messinger v. Kintner, 4 Birm. 97 ; Smith v.
Rice, 11 Mass. 507 ; Proctor v. Newhall, 17 Mass. 81 ; Thatcher
V. Powell, 6 Wheat. 119 ; Jackson v. Esty, 7 Wend. 148 ; Rea
V. M'Eachron, 3 Wend. 465 ; Atkins v. Kinnan, 20 Wend. 241 ;
Boswell's Lessee v. Otis, 9 How. 336. Semhle^ accord. Mason
V. Tuttle, 75 Va. 105. Li Bloom v. Burdick, 1 Hill, 130, the
judgment was held void because the court was acting under
special statutory powers and the jurisdictional facts affirmatively
appeared of record not to be present. See Foot v. Stevens, 17
Wend. 483 ; Hart v. Seixas, 21 Wend. 40. Under confiscation
acts and acts of a like nature, the courts have always insisted
upon a strict compliance with the act under which action was
taken, as to all jurisdictional points ; Chapman v. Phoenix
National Bank, 85 N. Y. 437 (Reversing 12 J. & S. 340);
Windsor V. McVeigh, 93 U. S. 274 ; Day v. Micon, 18 Wall.
156 ; Conrad v. Maples, 96 U. S. 279. Where an adjudication
in bankruptcy of the United States District Court was offered
in a suit in a New York state court, it was held, it seems, that
the jurisdictional facts need neither appear of record nor be
shown ; Cone v. Purcell, bQ N. Y. 649 ; Rosenthal v. Plumb, 25
Hun 336.

in.

Inferior Courts.

Inferior courts stand upon a very different basis from supe-
rior courts in most jurisdictions as to the standing and con-
clusiveness of their records. It may be stated as a general
principle, subject to many contrary decisions, that the record
of an inferior court must show jurisdiction upon its face, in
order to have prima facie standing against collateral attack (a).

1020 CREPPS V. DURDEN ET ALIOS.

(rt) Presumptions as to records of inferior courts •where the
courts act within their ordinary limits of jurisdiction. — It si'i'MlS
to be fuirly established as a general rule, that the record of a
court of hifcrior jurisdiction must, in order to be good, pritnd
facie^ against collateral attack, show jurisdiction. This is true,
even where the attack is in the domestic tribunals. There is
much conflict of decision upon this i)oint, but, on examination,
it will commonly be found that where the rule has been inter-
preted the other way, the result is due to the fact that the
court, the decision of which was questioned, has been regarded
really as a superior one, by the higher courts of the same
sovereignity.

The rule is as has been stated above, in the following states :
Missouri: Cunningham v. Pacific liy. 61 Mo. 33; Fisher v.
Davis, 27 Mo. App. 321 ; France v. Evans, 7 West. Rep. 277 ;
Hausberger v. Pacific Ry. 43 Mo. 200; State v. Metzger, 26
Mo. 65. Masmchunettx : Smith v. Rice, 11 Mass. 506; Hatha-
way V. Clark, 5 Pick. 490; Heath v. Wells, 5 Pick. 140; Hol-
yoke V. Haskins, 5 Pick. 20. Semhle, .Jenks v. Howland, 3 Gray
536; Brooks v. Adams, 11 Pick. 441; Brooks v. (iraham, 11
Pick. 445 ; Commonwealth v. Hay, 126 Mass. 235. Neiv York:
Rea V. M'Eachron, 13 Wend. 465 ; Atkins v. Kinman, 20 Wend.
241 ; Ford v. Walsworth, 15 Wend. 449 ; 19 Wend. 334 ; s. c.
again. Dakin v. Hudson, 6 Cow. 221. But see Barnes v. Harris,
4 Const. 374; Van Deusen v. Sweet, 51 N. Y. 378. Peririr
sylvania : (Doubtful) Messinger v. Kintner, 4 Birm. 97 ; Camp
V. Wood, 10 Watts 118. Semhle, of contrary bearing, Franklin
V. Goff, 14 S. & R. 181; Lockhart v. Johns. 7 Pa. St. 137; Mc-
Hale's Appeal, 105 Pa. St. 323; See McKee v. McKee, 14 Pa. St.
231 ; llUnoiH : Evans v. Pierce, 3 Seamon 468 ; Douglas v. Whit-
ing, 28 111. 362; Pardon v. Devine, 23 111. 572. Georgia: Grier
V. McLandon, 7 Ga. 362. Michigan : Mudge v. Yaples, 58 Mich.
307 ; Clark v. Holmes, 1 Doug. 390. Maine : Granite Bank v.
Treat, 18 Me. 340 ; Ne^v Hamjjshire : See the State v. Rich-
mond, 6 Fost. 232, see 241 et seq. Arkansas : McClure v.
Hill, 36 Ark. 268 ; Webster v. Daniel, 47 Ark. 131, at p. 141.
NeAV Jersey : Bergen Turnpike Co. v. State, 1 Dutch. 554. loiva :
Morrow v. Weed, 4 Clarke 77 ; United States Jurisdiction :
Florentine v. Barton, 2 Wall. 210. Alabama: Sims v. Waters,
65 Ala. 442. Kentucky : See Hart v. Grisby, 14 Bush. 542.
Indiana : Anderson v. Miller, 4 Blackf . 417 ; See Carr v. Goda,

CREPPS V. DURDEN ET ALIOS. 1021

84 Ind. 209 ; Carver v. Carver, 64 Iiid. 194. (Here the ques-
tion came up directly on appeal, and not collaterally.) Hop-
per V. Lucas, 86 Ind. 43. Ohio : McCurdy v. Baughman, 1
West. Rep. 33. Mississippi : See Edwards v. Turner, 14 S. &
M. 75 ; Smith v. State, 13 S. & M. 140. But see Taggert v.
Wise, 60 Miss. 870. Connecticut: Wattles v. Hyde, 9 Conn.
10 ; Hall V. Howd, 10 Conn. 514 ; Stern v. Scott, 8 Conn. 480.

Many of the above cases are to be considered in the light of
the fact that the actions were under special statutes of a limited
character, under which even courts of superior jurisdiction
would have been held to strict limits as to showing juris-
diction.

The early rule in England, as unaffected by latter statutes
and decisions, seems to be the other way, even on appeal ; Rex
V. Cleg, 1 Str. 475; Rex v. Venables, 1 Str. 430. But see
Connett v. Morley, 1 Q. B. 18. In Texas the courts of justices of
the peace, being established by the Constitution, are held practi-
cally to be superior courts. The rule then, as to such courts,
seems to be that the same presumption holds as to them as that
which applies to superior courts ; Williams v. Ball, 52 Tex.
603 ; Holmes v. Buckner, 67 Tex. 107. A similar view seems
to obtain in Misssouri as to probate courts ; Rowden v. Brown,
91 Mo. 429; Brooks v. Duckworth, 59 Mo. 49; Johnson v.
Beazeley, 65 Mo. 250. But a contrary view has been sustained
as to justices of the peace ; Bersch v. Schneider, 27 Mo. 101.
A like view has obtained in California as to probate courts.
Inco V. Commercial Bank, 70 Cal. 339. « All reasonable intend-
ments are made in Alabama in favor of the decrees of an Or-
phan's Court ; dictum ; Key v. Vaughan, 15 Ala. 497. The
general principle is stated, in Lessee of Grignon v. Astor, 2
How. 319, to be that jurisdictional facts must appear of record,
to render the judgment of an inferior court of primd facie
validity.

In Rhode Island, by special statute, the jurisdiction is pre-
sumed; Angell V Angell, 14 R. I. 541. And see Stern v. Ben-
nett, 24 Vt. 303 ; Lawrence v. Englesby, 24 Vt. 42 ; Williams
V. Sharp, 2 Cart. (Ind.) 101; Denve v. Hanlon, 21 N. J. L.
582 ; Painter v. Henderson, 7 Pa. St. 48 ; Samuels v. Findlay,
7 Ala. 635 ; Hew v. Hew, 5 Pa. St. 428 ; MTarland v. Burdick,
17 Vt. 165; Moore v. Houston, 3 S. & R. 169; Pierce v. Irish,
31 Me. 254; Cox v. Davis, 17 Ala. 714; Savage v. Benham, 17

102"2 CUKI'I'S V. Dl'KDKN KT AMns.

Ala. 119; Famir /-. Olmst.M.l, 21 Vt. 12:i; liilliii<r.s ,.. Russell,
23 I'a. St. 18!).

(^/>) Where there is an affirmative fiuding of jurisdictional facts
in the judgment of an inferior court. — Tlio ([UL'Stiou is whether,
or not, where lliu (jucstuju of jurisdiction of an inferior tribunal
is raised collaterally, and tliere is an express Hndinj:^ oi the
jurisdictional facts, the decision is conclusively hindinjj^, is one
■which has received a different answer in different states,

(1) It is universally held that an affinnative finding of
jurisdictional facts by a domestic and inferior tribunal is primd
facie evidence of such facts ; Wetherell v. Goss, 20 Vt. 748,
8emhle ; Ilawkes v. lialdwin, Hruyt. 85, semhle ; Staniford v.
Barry, 1 Aik. 321, semhle ; Brown v. Foster, G R. I. 504; Reed
V. Whilton, 78 Iiid. 570.

(2) The judgment of a domestic inferior court. — ■ liut tlie ques-
tion whether or not it is conclusivf like any other decision of
a court, upon facts brought up before it for adjudication, is
differently decided in different states. It would seem that the
general view is that such a finding is conclusive in the domestic
tribunals. See Sheldon v. Wright, 1 Seld. 407, at 514 ; Turner
V. Malone, 24 S. C. 398 (^semhle^ the court, a probate court,
was regarded as a superior one) ; Epi)ing v. Robinson, 21 Fla.
30 ; McCurdy v. Baughman, 1 West. 33 accord. That a judg-
ment of an inferior court, even where it recites aflirmatively
a finding of jurisdictional facts, may be impeached collaterally
in the domestic jurisdiction. See, Wood r. Wood, 78 Ky. 624;
Clark V. Holmes, 1 Doug. 300; Black v. lilack, 4 Bradf. 174;
Smelyer v. Loekhart, 07 Ind. 315.

(3) "Where the judgment sought to be questioned is that of an
inferior court of a foreign jurisdiction or of another state. — Where
the judgment which is sought to be questioned, is that of an in-
ferior court of another state, the jurisdictional facts must be
shown. If the inferior court acted under a special statute, that
must be proved as a fact as a part of the case of the party who
presents the record ; Thomas i'. Robinson, 3 Wend. 207 ; Hof-
heimer v. Losen, 24 Mo. App. 052 ; Wood v. Wood, 78 Ky. 624.
But see contra: State of Ohio v. Iliiichmau, 27 Pa. St. 470.

(c) Where the defect of jurisdiction appears on the face of the
record. — Where the record of the proceedings of an inferior
court, when the judgment is questioned, even in a domestic
tribunal, affirmativel}* shows a defect of jurisdiction, the pro-

CREPPS V. BURDEN ET ALIOS. 1023

ceedings are prima facie void ; Coiikey v. Kingman, 24 Pick.
115; Hendrick 2;. Cleveland, 2 Vt. 329; Clapp v. Beardsley, 1
Aik. (Vt.) 168 ; Jones v. Jones, 3 Dev. 360 ; Munroe v. People,
102 111. 406 ; Dale v. Irish, 2 Barb. 639 ; Holmes v. Field, 12
111. 424 ; State v. %e, 35 N. H. 368. cf. Sigourney v. Sibley,
21 Pick. 101 ; Gay v. Minot, 3 Cush. 352.

(f?) Where inferior courts act under special statutory powers.
• — What is true of superior courts in a more limited degree,
is, it seems, true to the fullest extent of inferior courts, viz.,
where they act under special statutory powers, the record
must show that they have conformed with substantial exact-
ness to the requirements of the statute, or the whole proceed-
ing is primd facie void; Wattles v. Hyde, 9 Conn. 10 ; Ford v.
Walsworth, 15 Wend. 449; Dakin v. Hudson, 6 Cow. 24
Hathaway v. Clark, 5 Pick. 490 ; Heath v. Wells, 5 Pick. 140
Holyoke v. Haskins, 5 Pick. 20 ; Camp v. Wood, 10 Watts 118
Bergen Turnpike Co. v. State, 1 Dutch. 554.

LIABILITY OF JUDGES, OFFICERS, PARTIES, AND OTHER
PERSONS, FOR ACTS DONE IN PURSUANCE OF JUDICIAL
AUTHORITY, OR IN A JUDICIAL CAPACITY.

Suits against Judges of Superior Courts,

It would now appear to be settled to a degree of certainty,
and it may be stated as a general proposition, that a judge of a
superior court of record is not liable to a private suitor for any
act whatever done in a judicial capacity. This is true, how-
ever erroneous such act may be. It is true, even as to acts
done with the most express malice. The judge is liable to
impeachment and removal, but the private suitor has no direct
remedy for injuries which he maj^ have suffered.

As to the case where, as in Crepps v. Durden^ the judge has
once acquired jurisdiction, but goes beyond and outside of it,
being obliged to pass upon the law as to the extent of his juris-
diction, it is now probably settled in most jurisdictions, beyond
a reasonable controversy, that the judge of a superior court is
not responsible for any of his acts.

Where there never existed any jurisdiction in the judge to

1024 CKEITS V. DUltDEN ET ALIOS.

act at all in the premises, the law is not so clearly settled. The
same may be said of the case where a judge of a superior court
acts without obtaining jurisdiction of the person of the party
who complains of his acts. This latter case must, of course, be
carefully distinguished from that in which a jutlge acts upon
evidence which is in fact untrue, but which is suflicient on its
face to entitle the judge to act. This case of action upon evi-
dence apparently sufficient as to jurisdictional facts, is treated
infra^ and comes under a different rule from that affecting the
subject now discussed.

The Aveight of authority seems to be that a judge of a supe-
rior court of record is not liable civilly for any act whatever
done while acting judicially. There is respectable authority to
the effect that this view is too broad ; but, on the whole, it
would seem to be fairly established, the main criticisms being
directed, as intimated above, to the application of the rule to
cases where there never existed any jurisdiction to act at all, or
where there is a failure of jurisdiction of the person complain-
ing of the judge's act.

The main difficulty comes in determining when a judge may
be said to be acting judicially. Is he always acting judicially
when sitting at the place of holding court and in the seat of
justice? May it be said of a judge of a superior court, as it
was, in Crcpps v. Burden., of a judge of an inferior court, that
whenever he transcends his jurisdiction his proceedings are
coram non judice, and, pro tanfo, subject him to liability ? Is
he liable for the consequences of ministerial acts? It would
seem that an understanding of the present state of the law as
to these and related points can best be reached by a considera-
tion of the growth, historically, of the law bearing upon them.
In treating this branch of the subject, the early cases which are
cited mostly refer to inferior judicial officers, but are quoted as
exhibiting the growth of the law bearing on the special head
now discussed ; regard being had, also, to the next jioint, — as
to the liabilities of judges of inferior courts. Book of Assise,
21 Udw. III. mi. Term, pi. 16 (1347), seems to be the first
appearance in the books of the general question of liability
for judicial acts. The defendants were sued for conspiracy.
It was held to be an answer to the action that the defendants
were grand jurors, and had found the indictment in the matter
complained of.

CREPPS V. BURDEN ET ALIOS. 1025

Book of Assise, 27 Edw. III. Mich. J., pi. 18, p. 135 (1353),
was a case in which R. was indicted for that, being a judge of
oyer and terminer, certain persons were arraigned before him
for trespass, and he entered of record that they were indicted
for felony. It was demanded that he sliould be held for falsi-
fying the record. It was held that the presentment was bad.

Year-Boole, 9 Henry VI. Hil. pi. 9, p. 60 (1431), was a case of
an action against an escheater for fraud. The court said that
no such action lay against a judge of record, but in the case at
bar it was otherwise ; for an escheator is not a judge of record,
but his office is an office of record.

9 Edw. IV. pi. 10, p. 3 (1470), intimated that no action lay
against a justice of the peace for judicial acts.

Year-Books, "21 Edw. IV. pi. 49, p. 67. Pigot, J. : If a justice
of the peace does anything apart from his office, he may be held
liable ; but in sessions, otherwise.

Floyd V. Barker, 12 Coke 23 (1608). A grand inquest had
been indicted for felony in the county of Anglesea. It was held
in Star Chamber that neither the indictors, nor, among others,
the judges of assize, could be questioned in the Star Chamber
for what they had done. The court said : " And the reason and
cause why a judge, for anything done by him as a judge, by the
authority which the king hath committed to him, and as sit-
ting in the seat of the king (concerning his justice), shall not
be drawn in question before any other judge for any surmise of
corruption, except before the king himself, is for this ; the king
himself is de jure to deliver justice to all his subjects ; and for
this, he himself cannot do it to all persons, he delegates his
power to his judges, who have the custody and guard of the
king's oath." The court clearly mark the distinction between
the courts of record and those not of record.

The Case of the Marshalsea, 10 Coke 68 (1613). Hall brought
trespass for assault, &c., and false imprisonment, against various
defendants. The defendants justified as officers and judges of
the Court of Marshalsea, and pleaded prescription for the court,
the prescription giving it limited and special powers. " It is
agreed in the point, also, that in trespass before the steward and
marshal, if none of the parties be of the king's household, then
it is coram non judice, because they exceed their power. The
same law, if they hold plea out of the verge. . . . But when the
court has not jurisdiction of the cause, then the whole proceed-

1026 CKEpra v. dlkhkn i;t alios.

ing is coram nonjwUee, and actions will lie against them without
any regard of the precept or proeess."

Aire V. Sedyivick^ 2 Rolle 195 (1C19). The L-ourt intimates
the doctrine of inimnnity to a judge for anything done in a
judicial capacity.

Martin v. Marshal^ Hohart 03 (^prior to 1046). Defendants
were sued for false imprisonment. They pleaded that one was
mayor, and held court at York by prescription ; that the otlier
was Serjeant of the court, and the latter acted by command of
the fornici-. The plea did not biing the case within the pre-
scription as [)k'a(l(.'d. HchJ^ that defendants were liable.

Terry v. Huntinyton, Ilardres 480 (1680). The case was a
suit against commissioners of excise for assessing low wines as
strong wines. The court held that they had no jurisdiction so
to act, and were liable. Hall, C. B.: ''First, the matter here
is not within their juristUction, which is a stinted, limited juris-
diction; and that implies a negative, viz., that they shall not
proceed at all in other cases. . . . Thirdly, if such commissioners
exceed their authority, what they do is coram non judice ; and
then, as appears 10 Rep., their otlicers are not privileged."

BushelVa Case, 1 Mod. 119 (1686), came up on a motion for
time to plead by the Lord Mayor of London and the recorder.
One Bushell brought an action for fuLsc imprisonment. Ihilc,
C. J., said: "I speak my mind plainly, that an action will not
lie; for a certiorari and a habeax corpus, whereby the body and
proceedings are removed hither, are in the nature of a writ of
error ; and in the case of an erroneous judgment given by a
judge which is reversed by a writ of error, shall the party name
an action of false imprisonment against the judge ? No, nor
against the officers, neither. Time was given as prayed.

Hamo7id v. Hotvell, 1 3fod. 184 (1686). This was another
phase of the matter stated in the preceding case. The plaintiif
brought an action for false imprisonment against the mayor of
London, the recorder, the whole court of Old Bailey, and the
sheriffs and gaoler, for false imprisonment. Some Quakers had
been indicted for a riot. The court directed a verdict of guilty,
but the jury found for defendants; and the jury were committed
for finding contrary to direction in matter of law. One of the
jury brought this action, after being discharged on habeas corpus.
Defendants moved for further time to plead. The court declared
their opinions against the action. Atkins, Justice : " It was never

CKEPFS V. DUKDEN ET ALIOS. 1027

imagined that justices of oyer and terminer and gaol delivery
would be questioned in private actions for what they should do
in execution of their office."

Grwinne v. Pool, Lutw. 935 (1693). Action was brought in
trespass against a judge and officers of an inferior court. On a
demurrer to a reply of want of jurisdiction, defendant had judg-
mentc On the appeal (LutAvyche, 1560), the court said that no
action whatever lay where the court had jurisdiction (see espe-
cially, p. 1511). It was held that the action was not well brought,
as it did not appear that defendant had knowledge of his want
of jurisdiction.

G-roenvelt v. Bruwell, 1 Ld. Raym. 454 (1700). Plaintiff sued
the defendants, as censors of the College of Physicians of Lon-
don, for false imprisonment. They had condemned him for
malpractice. Judgment was given for the defendants, the court
saying that the action of the censors, they having jurisdiction,
could not be elsewhere questioned.

Smith V. Dr. Bouchier, 2 Strange 993 (1735). This case was
one of a suit brought for false imprisonment against the vice-
chancellor of the University of Oxford and certain officers of
his court. It was pleaded that the defendant B. was vice-
chancellor, &c., and that by the custom, if a suitor swore that
he believed that his opponent would run away, the opponent
might be arrested and held ; that A. B. swore that plaintiff in
this suit owed him a debt, and complainant believed that the
then defendant — plaintiff here — would run away. The plea
did not exactly follow the custom as pleaded. Demurrer. The
plea was held to be bad, the court saying that, as the defendants
were joined together, and as the judge and the plaintiff in the
suit knew that the oath was not sufficient, all were liable.

Miller V. Seare, 2 Wm. Black. 1142 (1767). Action against
commissioners of bankruptcy for illegally imprisoning a person
for not answering satisfactorily at an examination. De Grey,
C. J. : 1st. It is agreed that the judges in the King's Superior
Court of Justice, are not liable to answer personally for their
errors in judgment. And this is not so much for the sake of
the judges, as of the suitors themselves ; Bushel's case, Vaughn
138. 2d. The like in courts of general jurisdiction, as gaol
delivery, &c. 3d. In courts of special and limited jurisdic-
tion, having power to hear and determine, a distinction must
be made. While acting within the line of their authority.

1028 CliKIM'S V. DUKDEX KT AI.IOS.

tliey are protected ;is tn errors in jiidt^fiiifiit ; otliorwisc tlu-y
arc; not protected. The proteition, in legiirtl to the superior
courts IS absolute and universal; with res[)eet to the 'inferior
it is only while they act witliiu their jurisdiction." The
commissioners in bankruptcy were held to be of limited juris-
diction and were held liable, as they had acted l)eyoMd their
jurisdiction.

Perkin v. Proctor, 2 Wih. 382 (1708). /A/-/, that trespass
lay a<^ainst assignees under a commission of bankruptcy sued
out against a victualler, such person not l)eiug witliiu the
Bankrupt Acts. The court said ([>. 384): "And it is ni»t like
where an oHicer makes an arrest by warrant out of the King's
Court, which if it be error the ollicer nuist not contradict,
because the court hath general jurisdiction ; but here (says
Justice C'roke) the justices of the peace have but a [)articular
jurisdiction."

ParmuH v. Lni/il, 3 Wilx. 341 (1772). Trespass for false
imprisonment. Defendant had caused to be sued out a void
writ. The writ was from a court of superior jurisdiction.
Held, that defendant was liable ; it did not appear that he had
taken any active part in the arrest. Dictum ([). 34.")), that the
officer executing the writ might have justilied under it.

Harman v. Tappenden et al., 1 Eant 555 (1801). Action
against T. and fifteen others. Defendants and plaintiff were
members of a company of fishermen of Kent. Plaintiff was in
an assembly of the company and, having broken a l)y-law, was
ordered to pay a fine, or show cause, &c. He did neither, and
without proof, was condemned to be prevented from fishing
during the ensuing oyster season. Held, act of defendants was
irregular, but judicial, and they could not be held, for such an
act, having jurisdiction. They should, liowever, have taken
proof.

Beaurain v. Scott, 3 Camp. 388 {Nisi Prius) (1812). Held,
that where an ecclesiastical court excommunicated a man in a
case where it had no jurisdiction, action will lay.

Aekerley v. Parkinson, 3 M. ^ Sel. 411 (1815). Action of
case for excommunication. Held, that defendants (judges of
the ecclesiastical court) were not liable, as they had jurisdic-
tion, though they acted erroneously.

Taaffe v. Doicnes, 3 3Ioores P. 0. (Ireland, 1812) 41 n.
Trespass for false imprisonment. Plea that plaintiff was ap-

CKEPPS V. DUKDEN ET ALIOS. 1029

prehended under a warrant issued by defendant acting judi-
cially as judge of King's Bench. Demurrer. Held., that the plea
was good.

Mayne., J. : "• The difference between the judges of the
superior and inferior courts has not been sufficiently attended
to." As to judges of superior courts, "the honest, good and
constitutional mind will alwa3\s wish to find them entirely
free and unbiased; and will rather entrust them with a high
and unquestionable authority, and, if guilty, leave their punish-
ment to Parliament alone, than hazard their fortitude and in-
dependence by the alarm and question, pains and expense of as
many actions as there may be acts of duty encountering the
bad passions and prejudices of mankind." This case is notable
as being perhaps the first deliberate decision in Great Britain
that seems to support the modern rule to its full extent.

G-arnett v. Ferrand, 6 B. ij- Or. 611 (1827). Suit against a
coroner for trespass in turning plaintiff out of a room where
the defendant was holding an inquest. Held, that no action
lay. Tenterden, C. J.: "The court of the coroner is a court
of record of which the coroner is the judge ; and it is a general
rule of very great antiquity, that no action will lie against a
judge of record for any matter done by him in the exercise of
his judicial functions."

Mills V. Collett, 6 Bing. 85 (1829). This case turns upon
the same principle as the one preceding. The court dis-
tinguishes C repps V. Durden.

Scott V. Stansfield, L. R. 3 Exch. 220 (1868). Action for
slander. Plea, that the words were spoken by the defendant
wliile acting as a county judge. Replication that the words
were spoken maliciously, falsely, without reasonable cause,
with no foundation, and not in the bond fide discharge of de-
fendant's duty. Demurrer. Held, that the replication was bad.
Kelly, C. B.: "The question arises, perhaps, for the first time
with reference to a county court judge, but a series of decisions
uniformly to the same effect, extending from the time of Lord
Coke to the present time, establish the general proposition that
no action will lie against a judge for any acts done or words
spoken in his judicial capacity in a court of justice. This doc-
trine has been applied not only to the superior courts, but to
the court of a coroner and to a court martial, which is not a
court of record."

1030 CKioiM's \'. i)ri;i>i:N i:t alios.

Licas V. Lord Brougham, Q C. ^ P. 249 (1833). Trespass
for false imprisonment. The defendant justified as Lord Chan-
cellor of England. He had committed the plaintilf for not
obeying an order. The plea was not guilty. The court was of
opinion that the defendant had authority to make the order, l)ut
it seems clear from the discussion that it would not have held
defendant liable had he lacked such authority.

Calder v. JTalket, 3 Moore s P. C. 28 (1839). Defendant sued
in trespass for false imprisonment. Defendant was judge of a
provincial magistrate's court in India. Act 21, Geo. III. ch. TO,
§ 24, made judge of such courts not liable for any act done as
judge. Held (Parke, B.), this action is designed to place these
judges on the footing of judges of superior courts of record.
"For English judges, when they act wholl}- \\itli()ut jurisdic-
tion, whether they may supj)Ose they had it or not, have no
privilege. Defendant's court had no jurisdiction of Euro})eans,
but it did not appear distinctly in the evitU'iice that the defend-
ant knew this. To hold defendant liable, this fact must appear.

Linford v. Fitzroy, 13 Ad. <)'• El. (xY. *S'.) 240 (1849). Held,
that no action against a magistrate for refusing to take bail
was maintainable without proof of malice.

Levy V. Moylan, 10 C. B. 189 (1850). Plaintiff sued a judge
of a county court in England, a sheriff, and a keeper of a house
of correction. The warrant set forth imprisonment for con-
tempt. Held., that although the court was of inferior and of
limited jurisdiction, the writ was an adjudication that the judge
had been insulted, and was regular on its face. The judge had
jurisdiction, and defendants were not liable.

Hoidden V. Smith, 19 L. Jour. N. S. Q. B. 170 (1850). Contra,
where a judge of a county court assumed to do an act beyond
his territorial jurisdiction.

Ward V. Freeman, 2 //•. C. L. 460 (1852). Held, that a judge
of a court of record could not be held liable for refusing to cer-
tify an appeal. " No action will lie against a judge for what he
does judicially, though it should be laid falso malitiose et sci-
enter ;'' Barnadiston v. Soame, 6 St. Tr. 1096 (1674). "An
action will not lie against a judge for anything done by him
quaternus a judge ; " Hammond v. Howell, 2 Mod. 218.

Kemp V. Neville, 10 C. B. N. S. 523 (1861). Defendant, a
vice-chancellor of Cambridge University, was sued by plaintiff
for false imprisonment. He had authority to imprison lewd

CKEPPS V. DtJEDEN ET ALIOS. 1031

females found in company with undergraduates. He, in good
faith, but erroneously and without due inquiry, imprisoned plain-
tiff. Held^ that, as he had jurisdiction, he was not liable.

Thomas v. Churton, 2 B. cf- S\ 475 (1862). Held, that a
coroner is not liable civilly for words slanderous, falsely and
maliciously spoken by him in an address to a jury.

Miller v. Hagaart, 2 Shmv's App. Cas. (Scotch') 125 (1824).
Similar decision as to words addressed by a superior court
judge to counsel in course of a trial.

Frai/ V. Blackhurn, S B. ^ S. 576 (1863). The declaration
alleged that defendant was a judge of the Court of Queen's
Bench. That plaintiff was a suitor before him. That she
became entitled to costs, but defendant refused to make the
rule absolute for them, defendant knowing the premises, and not
regarding his duty, &c. Demurrer. Judgment for defendant.
Plaintiff applied for leave to amend, to introduce an allega-
tion of malice and corruption. Leave refused.

Gompton, J. : " It is a principle of our law that no action
will lie against a judge of one of the superior courts for a
judicial act, though it be alleged to have been done mali-
ciously and corruptly ; therefore the proposed allegation would
not make the declaration good."

The foregoing cases comprise by no means the entire list of
English cases bearing upon the point under discussion. The
more complete list of authorities in the English courts is to be
found in the English note. The cases have been chosen merely
to show the development of the rule and its relation to the
views held by American courts upon the same subject. In
this country the decisions have brought about much the same
result. The earlier decisions relate to courts of inferior or
limited jurisdiction ; but some are ■ cited here as showing the
development of the law.

Phelps V. jSill, 1 Bag 315 (1804). It was held that a judge
of probate was not liable for failure to take security. "No
man," says the court, "would accept the office of judge, if his
estate were to answer for every error in judgment, or if his
time and property were to be wasted in litigations with every
man whom his decisions might offend." See Haynilton v. Wil-
liams, 26 Ala. 529 (1855). Accord.

Yates V. Lansing, 5 Johns. R. 282 (1810). This is a leading
case upon this subject. In this case the plaintiff sued in an

1032 CREPl'S V. BURDEN KT ALIOS.

action of debt for a penalty. The declaration alleged tliat
plaintiff was arrested by the sheriff under a writ issuing out
of the Court of Chancery. That plaintiff sued out a writ of
haheas corpus before one of the judges of the supreme court,
and was discharged undi-i- tin- writ. That afterwards the sher-
iff, "knowingly," »fcc., caused the plaintiff to be re-arrested.
There was a statute })roviding the penalty sued for if any one
caused the re-arrest of one discharged on habeas corpus. The
defendant })leaded that at the time of and before the arrest he
was chancellor of the state of New York. That as such he,
acting judicially, issued the writ on which plaintiff was first
imprisoned, and caused the plaintiff to be committed. That
afterward plaintiff was discharged on habeas corpus. That
thereui)on defendant, " as chancellor of this state and not other-
wise, at a Court of Chancery," «&;c., made an order for the
arrest of the i)laintiff. To this there was a demurrer. The
court held that no action lay. The court (^per Kent, Ch.) held
that the defendant was not liable. While the court decided
that the defendant had power to make the tirst commitment,
and that the statute imposing a penalty did not apply, the
language of the court goes much farther than this, and is inter-
esting as a discussion of the general principles.

" Where courts of special and limited jurisdiction exceed
their powers," says Chancellor Kent, at i)age 290, " the whole
proceeding is coram non judice, and all concerned in such void
proceedings are held to be liable in trespass. (Case of the
Marshalsea, 10 Co. 68; Terry v. Huntington, Ilardres 480.)
But I believe this doctrine has never been carried so far as to
justify a suit against the members of the superior courts of
general jurisdiction for any act done by them in a judicial
capacity."

Briggs v. Wardwell, 10 3Iass. 356 (1813). A justice of peace
was held liable in trespass where a party was imprisoned under
an execution issued only two or three hours after judgment, —
the law being that none could be issued within twenty-four
hours, — the court holding that issuing the execution was a
ministerial act.

Lincoln v. Ilapgood, 11 Mass. 350 (1814). Parker, C. J.:
Held, that an action lies against the selectmen of a town for
refusing the vote of a qualified voter, though there be no
malice. [Questions whether defendants acted judicially or
ministerially not discussed.]

C REPPS V. DUKDEN ET ALIOS. 1033

Little V. Moore, 4 N. J. 74 (1818). Held, that a justice of
the peace having jurisdiction was not hable for an erroneous
judgment. " In courts of general jurisdiction an action never
lies against the judge, because he has jurisdiction of all causes ;
in courts of limited jurisdiction it lies only when he exceeds that
jurisdiction and therefore is not in the exercise of his judicial
authority" (^per curimn').

Bigeloiv v. Stearns, 19 Johns. 39 (1821). Trespass for false
imprisonment. Defendant justified as a justice of the peace.
The statute under which defendant acted provided that a per-
son before commitment should be brought before the justice ;
but plaintiff here was committed by defendant without being
produced. The record was regular. It was held that the plain-
tiff might go behind the record, and that defendant was liable,
not having acted within his jurisdiction. Page 40. " If a court
of limited jurisdiction issues a process which is illegal, and not
merely erroneous ; or if a court, whether of limited jurisdiction
or not, undertakes to hold cognizance of a cause without having
gained jurisdiction of the person, by having him before them in
the manner required by law, the proceedings are void. And
in case of a limited or special jurisdiction, the magistrate at-
tempting to enforce a proceeding founded on any judgment,
sentence, or conviction, in such a case, becomes a trespasser."

Cunningham v. Bucklin, 8 Coiv. 178 (1828). Commissioners of
insolvency were sued by a creditor of an insolvent, for discharg-
ing the insolvent, corruption being charged. The statute made
their decision conclusive as to the propriety of their acts. It
was held that they were not liable.

Randall v. Brigham, 7 Wall. 523 (1868). Plaintiff, an attor-
ney-at-law, of Massachusetts, sued defendant, a judge of the
Massachusetts Superior Court, for wrongful removal of plain-
tiff from the bar. The court below instructed the jury that the
action could not be maintained, and defendant had a verdict.
This ruling was sustained. Field, J. : Defendant was a judge
of superior jurisdiction. " In reference to judges of limited and
inferior authority, it has been held that they are protected only
when they act within their jurisdiction. If this be the case with
respect to them, no such limitation exists with respect to judges
of superior or general authority. They are not liable to civil
actions for their judicial acts, even when such acts are in excess
of their jurisdiction, unless, perhaps, where the acts in excess of

1084 ci:Eri's v. duuden kt alios.

jurisdiction arc done maliciously or corruptly, &c." Jud^c Field
cites no authority for tlie doubt expressed in the last proposition.
It would seem, however, that the action of the defendant, was,
in part, proper. This ease, with the law as expressed in the
opinion, seems to have settled the law in the United States
jurisdiction. Consult Galpin v. Page, 18 Wall. 350.

Bradleij v. Fhher, 18 Wall. 335 (1871). A suit l)y an attorney
against a judge who, sitting at regular term in tlie District of
Columbia, had disbarred him. The plaintift's position was,
practically, that the defendant's action had been so taken as to
make it coram non judice and void ; the plaintiff sued for com-
pensation. The supreme court held that the plaintiff" could
sustain no action. The court, in a long and well-considered
opinion, said, per Field, J. : " A distinction must be here ob-
served l)etween excess of jurisdiction and the clear absence of
all jurisdiclioii over the subject-matter. Where there is clearly
no jurisdiction over the subject-matter, any authority exercised
is a usurped authority, and for the exercise of such autliority,
when the want of jurisdiction is known to the judge, no excuse
is permissible."

Busteed v. Parsons (1875), 54 Ala. 303. I'laintiff sued for
false imprisonment. Defendant pleaded that as a judge of the
United States District Court for the Middle District of Ala-
bama, he imprisoned plaintiff. The declaration alleged that
plaintiff was imprisoned maliciously and without probable
cause. Plea alleged a due complaint, &c. Issues came u}) on
the plea, " not guilty," and a special plea. Plaintiff urged tliat
the charge was wholly outside of the jurisdiction of the United
States District Court. Held, that the defendant was not liable
in any event. United States courts are of superior though of
special jurisdiction. The court seems to go the full length of
holding that no action whatever, of a civil nature, will lie
against a judge of a superior court for anything done in a
judicial capacity, even though he be in error in holding that
given facts give him jurisdiction.

Lange v. Benedict, 73 iV. Y. 12 (1878). Action for false
imprisonment. The complaint alleged that defendant was a
judge of the United States District Court for the Eastern Dis-
trict of New York. He presided at a circuit court. Plaintiff
was indicted and convicted for stealing mail bags from the
United States, the value being found to be less than $25. By

CREPPS V. DUEDEN ET ALIOS. 1035

the act defining the crime tlie penalty was imprisonment for
one year or $200 line. Defendant sentenced plaintiff to hoth.
Plaintiff paid the fine. On habeas corpus^ afterward, defendant
xe-sentenced plaintiff to one year imprisonment. The snpreme
court of the United States discharged plaintiff from imprison-
ment. Demurrer by defendant to the complaint stating all the
facts. Held, that defendant was not liable. The point dis-
cussed was really the liability for the second sentence. Folger,
J. : " He [the defendant] was, in fact, sitting in the place of
justice ; he was, at the very time of the act, at court ; he was
bound by his duty to the public and to the plaintiff to pass as
such, upon the question growing out of the facts presented to
him, and as a -court to adjudge whether a case had arisen in
which it was the demand of the law, that on the vacating of
the unlawful and erroneous sentence or judgment of the court,
another sentence or judgment could be pronounced upon the
plaintiff. So to adjudge was a judicial act, done as a judge, as
a court ; though the adjudication was erroneous, and the act
based upon it was without authority and void."

The court had jurisdiction up to the vacating of the last
sentence. " This act of the defendant was then one in excess of
or beyond the jurisdiction of the court. And though where
courts of special and limited jurisdiction exceed their powers,
the whole proceeding is coram 7ion judice, and void, and all con-
cerned are liable, this has never been carried so far as to justify
an action against a judge of a superior court, or one of general
jurisdiction for an act done by him in a judicial capacity." See
London Law Journal, Aug. 24, 1878, for approving comment.

Pickett V. Wallace, 57 Cal. 555 (1881). In this case, the
complaint set forth that the defendant sitting as the supreme
court, knowing that the plaintiff had not committed a contempt
and not having acquired jurisdiction over his person, mali-
ciously, &c., adjudged him guilty of a contempt and caused liis
imprisonment. Demuri'er. The demurrer was sustained. The
court said that "judges of courts of record, of superior or
general jurisdiction, are not liable to civil actions for their judi-
cial acts, even when the acts are in excess of their jurisdiction,
and are alleged to have been done corruptly and maUciously."
See Turpen v. Booth, 56 Cal. 65. This case goes the full
length, apparently, of holding that even where no jurisdiction is
acquired of the person, a superior court judge is not responsible

1036 CREPrS V. DUllDKN KT ALIOS.

for liis acts, while acting in a court of justice. The prevailing
doctrines of the law, as expounded in Lanje v. Benedict and
some of the other cases supni^ are scarcely liively to be changed,
as was well said by Chancellor Kent in YateH v. Lansing. " No
man can foresee the disastrous consequences of a precedent in
favor of such a suit. Whenever we subject the established
courts of the land to the degradation of private prosecution, we
subdue their independence and destroy their authority. Instead
of being venerable before the public, they become contempti-
ble ; and we thereby embolden the licentious to trample up(jn
everything sacred in society, and to overthrow those institu-
tions which have hitherto been deemed tlie best guardians of
civil lil)erty." The general conclusions which we reach upon a
review of the cases, seem to be these: (1) That a judge of a
superior court is never lial)le civilly for any act of a judicial
character performed wliile sitting in the place of justice and
acting judicially, pr()vi<led he has jurisdiction of the person and
subject-matter, however erroneous or even malicious such act
may be. (2) That he is not liable civilly for any judicial act,
provided he has once acquired jurisdiction of the general sub-
ject-matter and of the person, even though he exceed that juris-
diction previously acquired. (3) That he is not liable civilly
for any ju<licial act, even though he does not in fact acquire
jurisdiction of the person, if he has reason to think he has ac-
quired jurisdiction of the person, and is called upon to pass upon
the question whether or not he lias jurisdiction, provided he has,
or, perhaps, even has reason to think he has, jurisdiction of the
general subject-matter. (4) That he is probably liable civilly,
if he acts without apparent jurisdiction of the subject-matter,
and of the person. (5) That he is considered to be acting judi-
cially, whenever liis act is such as falls within the general powers
of a judge, even if apparently ministerial in its nature, and is
sitting in the place of justice, acting Avith authority as judge
of the court of wdiich he is a member.

II.

Suits against Judges of Inferior Courts.

(«) Where a judge of an inferior court, or any person acting
judicially, acts -within his jurisdiction, erroneously, but in good
faith. — Our review, historically, of the cases bearing upon the

CREPPS V. BURDEN ET ALIOS. 1037

liabilities of judges of superior courts, makes it unnecessary to
go over the same ground here, as to the development of the
rule bearing upon judicial officers of inferior jurisdiction. The
general rule is that where a judge of an inferior court, or any
person acting judicially, acts within the general scope of his
jurisdiction, and in good faith, but acts erroneously, he will not
be liable to any party for his action. This proposition would
seem to be very clear, both from the cases and as a matter of
reason ; Reed v. Conway, 20 Mo. 22 ; Doswell v. Imfrey, 1 B.
& Cr. 163 ; Bushell's Case, Vaughan 135 ; Hammond v. Howell,
1 Mod. 184 ; Fausler v. Parson, 6 W. V. 486 ; White v. Morse,
139 Mass. 162 ; Levy v. Moylan, 10 C. B. 189 ; Tyler v. Alford,
38 Me. 530; Kibling v. Clark, 53 Vt. 379; Hill v. Sellick, 21
Barb. 207 ; Weaver v. Devendorf, 3 Denio 117 ; Brown on Ac-
tions at Law, 191-200 ; Wheeler v. Patterson, 1 N. H. 88; Ken-
dall v. Stokes, 3 How. U. S. R. 87 ; Weckeley v. Geyer, 11 S.

6 R. 39 ; Jenkins v. Waldron, 11 Johns. 114 ; Hitch v. Lam-
bright, 66 Ga. 228 ; Linford v. Fitzroy, 13 Q. B. 240 ; Holcomb
V. Cornish, 8 Conn. 375 ; Fischer v. Langbein, 103 N. Y. 84,
dicta ; Harman v. Brotherson, 1 Den. 537 ; Landt v. Hilts, 19
Barb. 283 ; Marks v. Townsend, 97 N. Y. 590 ; Miller v. Adams,

7 Lans. 133 ; Hamilton v. Williams, 26 Ala. 527 ; Lowther v.
Radnor, 8 East 113 ; Pike v. Carter, 3 Bing. 78 ; Calder v. Hal-
ket, 3 Moore's P. C. 28, at p. 78 ; Grove v. Van Duyn, 44 N. J.
Law 654 ; Morton v. Crane, 39 Mich. 31. Accordingly, it has
been held that where a surveyor-general who, as a public offi-
cer was obliged to exercise his discretion, discharged, errone-
ously, a surveyor, he was not liable ; Reed v. Conway, 20 Mo. 22.
Where commissioners of bankruptcy, having jurisdiction of the
subject-matter, decided erroneously, they were held not to be
liable ; Doswell v. Imfrey, 1 B. & Cr. 163. A similar decision
has been reached regarding a county board of registration ; Faus-
ler V. Parson, 6 W. V. 486 ; action of a commander of a war-
ship, Wilkes V. Dinsman, 7 How. (U. S.) 89 ; Burns v. Nowell,
5 Q. B. D. 444. School trustees who, in course of their duties,
made a decision which was erroneous, but was made in good faith,
were held not to be liable ; Hill v. Selhck, 21 Barb. 207. An
assessor of taxes, who acts judicially, though erroneously, is not
liable for his erroneous act ; Weaver v. Devendorf, 3 Den. 117.
So it has been held that where a moderator of a town or other
meeting, acts judicially, but erroneously, in refusing a vote of a

1038 CREPPS V. DUKDEN ET ALIOS.

qualified voter or in any similar matter, he is not liable; Wheeler
V. Patterson, 1 N. H. 88 ; Weckeley v. Geyer, 11 S. & R. 35, at
p. 89; Jenkins v. Waldron, 11 Johns. 114.

In Kendall v. Stokes, 3 How. U. S. Rep. 87, the suit was by
a government contractor against a secretary of the United
States Treasury for refusing to allow, upon the government
books, certain items. This was shown to be an error of judg-
ment, but the error was without bad faith. It was held that,
as the defendant acted quite in good faith, and judicially, he
was not liable. See Gridley Exr., &c., v. Lord Palmerston, 7
J. B. Moore 91.

(J)) Where a judge of an inferior court or any person acting in
a judicial, but inferior and limited capacity, acts beyond his juris-
diction. — This includes the precise instance presented by our
principal case, and although the rules of law in this regard
have undergone some slight modification since the decision in
Crepps V. Durden, the general rule is still in most jurisdictions
substantially what it was as established by that case. The
" Jervis Acts " (11 & 12 Vict. ch. 44) have not, in general, been
copied in the states, and the questions touched by them have
been left to be worked out by the courts.

In G-rider v. Tally, 11 Ala. 422, it was held that when a
probate judge, empowered and directed under the statute to
grant licenses, refused a license properly applied for, he was
liable. It will be observed here that the judge was held not
for any positive tort committed in the exercise of his jurisdic-
tion, but for refusing to act where the law called for action.
The act was reofarded as ministerial.

White V. Morse, 139 Mass. 162, is a case which, at first sight,
and even, perhaps, upon consideration, may be found to be con-
trary to the principles established in Crepps v. Durden. In
White V. Morse the defendant, a trial justice, rendered a judg-
ment for costs in violation of a statutory provision, and the
plaintiff sued for acts done under that judgment. It was held
that the defendant was not liable, the court saying (p. 163),
" his error was an error of judgment in deciding a question of
law which he was obliged to decide, and which was within the
scope and limits of his jurisdiction. For such an error he was
not liable to the plaintiff whose proper remedy was by an
appeal." On the whole, it would seem that this case is directly
contrary to Crepps v. Durden (which case, by the way, is not

CREPPS V. DURDEN ET ALIOS, 1039

cited in White v. Morse ; in Crepps v. Burden the defendant
had equally and in the same sense to decide " a question of
law which he was obliged to decide, and which was within the
scope and limits of his jurisdiction," that is, the general duty
to punish the offences of which the prisoner was charged. The
decision of the justice was beyond his jurisdiction as much in
one case as the other. Where a justice of the peace has author-
ity to grant attachments in a certain manner, and he acts in
a different way, he is liable ; People v. Jarrett, 7 111. App. 566 ;
see II. Hilliard on Torts, ch. 28, § 5. A judge of a county
court in England, acting beyond his territorial jurisdiction, is
liable for the consequences of his illegal judgment ; Houlden v.
Smith, 19 L. J. N. S. 23, 170. Where a justice of the peace had
jurisdiction to commit, but also inflicted a penalty, he was held
to be liable ; Patzack v. Von Gerichten, 10 Mo. App. 424 ; ac-
cord, Phillips V. Thrall, 26 Kas. 780.

In'Durden v. Belt, 61 G-a. 545, where a justice acted under a
garnishment proceeding which was void, he was held liable.

In McClure v. Hill, 36 Ark. 268, the affidavit in replevin
before a justice of the peace did not show that the goods were
under $300 in value, the limit of his jurisdiction. The goods
were of a greater value. Held, that both the justice and the
officer who executed the attachment were liable. Where a jus-
tice of the peace distrained goods of a person not liable to
militia fines, he was held to be liable ; Wise v. Withers, 3 Cr.
331. It has been held that when a justice gave a judgment
against a person under an unconstitutional act of the legisla-
ture, and the person suffered thereby, he was liable ; Piper v.
Pearson, 2 Gray 120 ; Clark v. May, 2 Gray 410 ; Sullivan v.
Jones, 2 Gray 570. A justice of the peace, or other inferior
judicial officer, must pursue his statutory authority with rea-
sonable strictness, or he will be liable ; Bigelow v. Stearns, 19
Johns. 39; and see McClure v. Hill, 36 Ark. 268; Hall v.
Howd, 10 Conn. 514 ; Starr v. Scott, 8 Conn. 480 ; Estopinal v.
Peyroux, 37 La. Ann. 477 ; Brooks v. St. John, 25 Hun 540.
Where a justice of the peace issues an attachment against a
defendant, and the cause of action is not one of those within
the statutory grounds, the justice is liable for the consequences
of his action ; Wright v. Rouss, 18 Neb. 234. Consult in this con-
nection, Carratt v. Morley, 1 Q. B. 18 ; Houlden v. Smith, 14 Q.
B. 839. A case which seems to have a bearing contrary to the

1040 CREPPS V. DL'KDKN KT AI.loS.

cases cited from 2 Gray^ supra, is that of Ileiike v. McCortl, 55
la. 378. In that case the defendant issued a warrant by virtue
of which liquors were seized, under a void city ordinance. Held^
that defendant was not liable.

In Hill V. SeU'tck, 21 Barb. 207, the defendants, who were
school trustees, seem to have acted under a mistake of laiu as
well as fact. They were, however, held not to be liable ac-
cord, Weaver v. Devendorf, 3 Den. 117 ; Linford v. Fitzroy,
13 Q. B. 240 ; Holcomb v. Cornish, 8 Conn. 375, and other cases,
supra. These cases all proceed upon the assumption of pre-
viously acquired jurisdiction. Wlicre a justice, of the peace,
having acquired jurisdiction of one defendant only, causes exe-
cution to issue against tAvo, he is liable to the one of whom he
did not acquire jurisdiction ; I^ittle v. ]\Ioore, 1 South. 74. It
is well settled also that where a justice or other officer act-
ing judicially, is obliged to pass in his judicial capacity upon
some jurisdictional fact, and he decides it in favor of jurisdic-
tion he will not, when acting honestly, be liable for an erroneous
decision of such fact. This is subject to the qualification, that
he must have some evidence upon which to pass. This is to be
carefully distinguished from the case when, as in Crcpps v. Dur-
den, his error of decision arises from a mistake as to his legal
powers. These cases are also to be distinguished from cases
like Hill V. SelUck, supra, where the mistake of law is after the
court has acquired full jurisdiction.

Tlie case of Morton v. Crane, 39 Mich. 526, is important in this
connection. The plaintiff sued defendant, who was a justice of
the peace, in trespass on the case for acts done under an illegal
judgment. Among other irregularities or defects in the pro-
ceedings, it appeared that the summons was served by the plain-
tiff in that proceeding. At the return day a person who was
not authorized appeared for the defendant, — plaintiff here, —
and consented to an adjournment. The service, it seems, was
void. Judgment was entered against the plaintiff in this suit
for non-appearance upon the adjourned day, and under the
judgment the plaintiff suffered injury for which he sues. The
court (decision by Cooley, J.) held that the defendant was not
liable. The court used the following language : " That the
action was judicial is unquestionable. A suit had been begun,
and it was the duty of the justice to call it and see if the
parties appeared. The plaintiff did appear and Hitchcock

CREPPS Y. DUKDEN ET ALIOS. 1041

answered for the defendant. If he answered with authority,
the justice was possessed of the case for the purposes of a trial ;
but if not, the suit would go down unless a new summons was
taken out. A question was therefore presented for the deci-
sion of the justice, whether Hitchcock was or was not author-
ized to appear, and upon this the justice was compelled to pass.
No reason can be assigned for holding him responsible for an
erroneous decision of this question that would not apply to the
case of an error at any stage of the case." The difficulty here
seems to lie in holding that the court ever acquired jurisdiction.
Justice Cooley expressly says in his decision that if there had
been no appearance, the suit would have gone down. The
true j^rinciple here seems to be that a justice is always protected
in any decision, however erroneous, if the facts as presented
warranted him in deciding that he had jurisdiction, although
he in fact never acquired it. When a justice of the peace acts
in good faith upon a complaint setting forth all facts necessary
for his action, he is not liable, even though the statements are
not in fact true. Morton v. Crane, supra ; Lowther v. Radnor,
8 East 113; Pike v. Carter, 3 Bing. 78; Calder v. Halket, 3
Moore's P. C, 28, at p. 78 ; Miller v. Grice, 2 Rich. (Law) 27.

But the rule is, of course, otherwise, if the complaint does
not show jurisdictional facts and they do not in truth exist ;
Carratt v. Morley, 1 Q. B. 18, and many cases, supra.

(6'} Where a justice or other judicial ofBcer of a court of inferior
jurisdiction acts maliciously or fraudulently. — Whether or not
where a justice of the peace or other judicial officer of an in-
ferior court, acting within his jurisdiction, judicially and not
ministerially, is liable for acting erroneously and maliciously, is
a question upon which there is an apparent conflict of views.
As it is not closely connected with our subject, we shall pass it
over with slight comment.

In Maryland such an officer so acting has been held liable ;
Knell V. Briscoe, 49 Md. 414. So in Iowa, perhajys New York,
Louisiana, perhaps South Carolina ; Abrams v. Carlisle, 18 S. C.
242 ; Go wing v. Gowgill, 12 Iowa 495 ; Tomkins v. Sands, 8
Wend. 462 ; Estopinal v. Peyroux, 37 La. Ann. 477.

In Massachusetts, Indiana, Iowa, 'prohably Michigan, a con-
trary view prevails ; Pratt v. Gardner, 2 Cush. 63 ; Kress v.
Wagoner, 65 Ind. 106 ; Wasson v. Mitchell, 18 Iowa 153 ; Lon-
degan v. Hammer, 30 Iowa 508. Dictiun of Cooley, J., in Mor-

1042 CRKl'l'S V. DUUDEN ET AI.IOS.

ton V. Crane, 39 Mich. 526, at p. 530 ; Wilson v. Mayor, 1 Dev.
595, at p. 599 ; Anderson v. Park, 57 Iowa 09 ; Stone v. Graves,
8 Mo. 148 ; Taylor v. Doremus, 16 N. J. (Law) 473. See, as
to general principle, Linford v. Fitzroy, 13 Q. 15. 240 ; Gelen
V. Hall, 2 H. & N. 379.

The weio-ht of authority probably is that no action lies
against a judicial oi'licer, having jurisdiction, when acting judi-
cially, even though he acts erroneously and with malice. A
similar rule applies to grand jurors ; Turpen v. Booth, 56 Cal. 65.
Neglect by a justice to perform his official duty as to a mhiis-
terial act may render him liable ; Carpenter v. Warner, 138
Ohio St. 416.

Many of the cases which hold that a judicial officer is liable
for malicious action may be explained on the ground that, in
the view of the court, the act complained of, e.g.^ illegally re-
fusing bail, was a ministerial and not a judicial act.

III.

Liability of Ministerial Officers who act under Void Proceedings.
— As this is not closely connected with our subject, it will be
treated briefly. It seems, on the AVhole, however, to be suffi-
ciently germane to the subject for mention.

As a rule, an officer acting under the warrant of a court,
where the warrant is regular upon its face, is not liable, even if
the judgment upon which the warrant is founded is erroneous or
even void; Levy v. Moylan, 10 C. B. 189; McClure v. Hill, 36
Ark. 268 ; Baird v. Campbell, 4 W. & S. 191 ; Mills v. Martin,
19 Johns. 7 ; Scott v. Rucker, 19 Mo. App. 587 ; Elsmore v. Long-
fellow, 76 Me. 128; Collins v. Mann, 15 W. Va. 171; Clark
V. Bowe, 60 How. Pr. 98; Chipstead v. Porter, 63 Ga. 220;
Archibeque v. Miera, 1 New Mexico 419 ; Lake v. Biller, 1
Ld. Ray. 733 ; Shipman v. Clark, 4 Den. 446 ; Foster v. Petti-
bone, 20 Barb. 350 ; Hallett v. Byrt, Carthew 380 ; Simpson v.
Reynolds, 14 Barb. 506 ; Andrews v. Maris, 1 Q. B. 3 ; Webb v.
Batchelor, 1 Vent. 273 ; Chegnay v. Jenkins, 1 Seld. 376 ;
Patchin V. Ritter, 27 Barb. 34 ; Wood v. Davis, 34 N. H. 328 ;
Wood V. Alleghany City, 18 Pa. St. 55 ; Cody v. Quinn, 6 Ired.
(Law) 191 ; Hecker v. Jarrett, 3 Brim. 404 ; Billings v. Russell^
23 Pa. St. 189 ; People v. Warren, 5 Hill 440 ; People v. Cooper,
13 Wend. 379; Webber v. Gay, 24 Wend. 485; Watson v.

CREPPS V. DURDEN ET ALIOS. 1043

Watson, 9 Conn. 141 ; State v. Weed, 21 N. H. 262 ; Champaign
County Bank v. Smith, 7 Ohio St. 42 ; Spragiie v. Richard, 1
Wis. 457 ; Henderson v. Brown, 1 Carr. 92 ; Stoddard v. Tar-
bell, 20 Vt. 321 ; Darling v. Brown, 10 Vt. 148 ; Savacool v.
Boughton, 5 VVend. 170 ; Hecker v. Jarrett, 3 Brim. 404 ; Moore
V. Houston, 3 S. & R. 169, sem. ; Robinson v. Brennan, 90 N.
Y. 208 ; Barr v. Boyles, 96 Pa. St. 31 ; Norcross v. Nunan, 61
Cal. 640 ; Philipps v. Spotts, 14 Neb. 139 ; Collins v. Mann, 15
W. Va. 171. But see Martyn v. Podger, 5 Burr. 2631 ; Daman
V. Bryant, 2 Pick. 411 ; Hill v. Bateman, 2 Str. 710 ; Howard
V. Gosset, 10 Q. B. 359 ; Morse v. James, Wills 122 ; Tobin v.
Addison, 2 Strobh. 3; Ford v. Babcock, 1 Den. 158; Barrett
V. Crane, 16 Vt. 246 ; Cable v. Cooper, 15 Johns. 152 ; Brown
V. Compton, 8 T. R. 424 ; case of the Marshalsea, 10 Coke 68a.

It is otherwise if the warrant shows upon its face that the
judgment upon which it is founded was in a proceeding coram
non judice ; Hall v. Howd, 10 Conn. 514 ; Starr v. Scott, 8
Conn. 480 ; Beazeley v. Dunn, 8 Rich. 345 ; Sagendorph v. Shult,
41 Barb. 102 ; Carratt v. Morley, 1 Q. B. 18 ; Mitchell v. Har-
mony, 13 How. 115 ; Gruman v. Raymond, 1 Conn. 39 ; Sanford
V. Nichols, 13 Mass. 286 ; Bonaker v. Evans, 16 Q. B. 162; Clarke
V. Bond, 7 Baxter 288 ; Kentzler v. Chicago, &c., Ry., 47 Wis.
641.

In Fisher v. 3IcG-in, 1 Grai/1, it was held that an officer exe-
cuting a warrant under a judgment of an inferior court, which
judgment was founded upon an unconstitutional statute, was
liable ; Kelly v. Bemis, 4 Gray 83 ; Henke v. McCord, 55 la.
378, semble contra.

IV.

Liability of Parties and Attorneys who instigate Proceedings
which are Invalid.

The remark which applied to (III.) supra^ regarding connec-
tion with our subject applies here. The subject will be treated
briefly and without consideration of the finer distinctions pre-
sented by the cases. To avoid repetition, the numerous cases
which involve the subject under this head, and which have been
cited above, will be cited here only so far as seems necessary
to make the subject clear. As a general rule, neither a party or
attorney is liable for the consequences of an illegal proceedings

1044 CKEl'PS V. bUKUEN KT ALIUS.

where his acts do not amount to a malicious prosecution, and
where he takes no active and positive part in carrying out the
process. When a person applies to a court and properly states
the facts, and the court takes some action under which another
person receives injury, the person applying to the court is not,
in general, liable, wdiere he takes no active part, even if the
proceeding is without authority and void; West v. Small wood,
3 M. & W. 418. Consult Painter v. Liverpool Gas Co., 3 Ad. &
E. 438.; Cohen v. Morgan, 6 Dowl. & Ry. 8 ; Barker v. Stetson,
7 Gray 53; Baid v. Campbell, 4 W. & S. 191 ; Field v. Ander-
son, 103 111.403; Carratt v. Morely, 1 Ad. & El. N. S. 18;
Bigelow on Torts, 3d. ed. 128 ; Cooper v. Harding, 7 Q. B.
928 ; Peckham v. Tomlinson, 6 Barb. 253 ; Williams v. Smith,
14 C. B. N. S. 596; Smith v. Sydney, L. R. 5 Q. B. 203 ; Cod-
rington v. Lloyd, 8 Ad. & El. 449 ; Deyo v. Van Valkenburgh,
5 Hill 242. These numerous cases in accord among those cited
above.

In Curry v. Prin<jh\ 11 Johns. 444, a defendant was held
liable when he had applied to a magistrate and procured the
plaintiff's arrest without due cause shown. See case of the
Marshalsea, 10 Coke 68a.

Where the attorney or party takes active part in the execu-
tion of a writ founded upon a proceeding wliicli is coram non
jndire, such officer or party may be held liable ; Barker v.
Braham, 2 Wm. Bl. 366 ; Deal v. liogne, 20 Pa. St. 228 ; Emery
V. Hapgood, 7 Gray 55 ; West v. Smallwood, 3 M. & W. 418 ;
Parsons v. Loyd, 3 Wils. 341 ; Bryant v. Chilton, 1 M. & W.
408 ; Codrington v. Lloyd, 8 Ad. & El. 449 ; (xreen v. Elgie, 5
Ad. & El. N. S. 99 ; Benham v. Vernon, 3 Cent. Rep. 276.

LICKBARROW v. MASON.

IN B. R. CAM. SCACC. ET DOM. PROC.
[reported 2 t. r. 63; 1 h. bl. 357; and 6 east, 21.]

The vendee of goods may hy assignment of the hills of lading to a
bona fide transferee, defeat the vendor s right to stop them in
transitu, in case of the vendee'' s insolvency.

The co7isignor may stop goods in transitu before they get into the
hands of the consignee, in case of the insolvency of the consignee ;
but, if the consignee assign the bills of lading to a third person
for a valuable consideration, the right of the consignor, as
against such assignee, is divested. There is no distinction
between a bill of lading indorsed in blank, and an indorsement
to a particular person.

Trover for a cargo of corn. Plea, the general issue. The
plaintiffs, at the trial before Buller, J., at the Guildhall sittings
after Easter Term, gave in evidence that Turing and Son, mer-
chants at Middleburg, in the province of Zealand, on the 22nd
of July, 1786, shipped the goods in question on board the
Endeavour for Liverpool, by the order and directions and on
the account of Freeman, of Rotterdam. That Holmes, as
master of the ship, signed four several bills of lading for the
goods in the usual form unto orders or assigns; two of which
were indorsed by Turing and Son, in blank, and sent, on the
22nd of July, 1786, by them to Freeman, together with an in-
voice of the goods, who afterwards received them ; another of
the bills of lading was retained by Turing and Son ; and the
remaining one was kept by Holmes. On the 25th of July,
1786, Turing and Son drew four several bills of exchange upon
Freeman, amounting in the whole to 477^., in respect of the
price of the goods, which were afterAvards accepted by Free-

1045

104G LICKBAKi:<)\V V. MASON.

man. On the 25th of July, 178(5, FreeuKin sent to the phiintiffs
the two bills of lading, together with the invoiee whicii he had
received from Turing and Son, in the same state in whieh lit;
received them, in order that the goods might be taken posses-
sion of and sold by them on P'reeman's aecount; and on the
same day Freeman drew three sets of bills of exchange to the
amount of 520?. on the plaintiffs, who accepted them, and have
since duly paid them. The plaintiff's are creditors of Freeman
to the amount of 542?. On the 15th of August, 1780, and
before the four bills of exchange drawn by Turing and Son on
Freeman became due. Freeman became a bankrupt : those bills
were regularly protested, and Turing and Son have since been
obliged, as drawers, to take them up and pay them. The price
of the goods so shipped by Turing and Son is wholly un[)aid.
Turing and Son, hearing of Freeman's bankruptcy on the 21st
of August, 1786, indorsed the bill of lading so retained by them
to tlie defendants, and transmitted it to them, with an invoiee
of the goods, authorising them to obtain possession of the goods
on account of, and for the use and benefit of, Turing and Son,
Avhich the defendants received on the 28th of August, 1780.
On the arrival of the vessel with the goods at Liverpool^ on the
28th of August, 1786, the defendants applied to Holmes for the
goods, producing the l)ill of lading, who thereupon delivered
them, and the defendants took possession of them and for and
on account of Turino- and Son. The defendants sold the tjoods
on account of Turing and Son, the proceeds whereof amounted
to 557?. Before the bringing of this action the plaintiffs de-
manded the goods of the defendants, and tendered to them the
freight and charges ; but neither the plaintiffs nor Freeman
have paid or offered to pay the defendants for the goods. To
this evidence the defendants demurred ; and the plaintiffs
joined in demurrer.

This was argued in last Trinity Term by Erskine in support
of the demurrer, and Matily against it; and again, on this day,
by Shepherd, in support of the demurrer, and Bearcroft contra.

Shepherd (a), after observing that, as the defendants were
the agents of Turing and Son, the general question was to be
considered as between the consignor and the indorsee of the

(a) As the second argument, with the subject, the former argument is
the judgment of the court, compre- omitted,
handed everything that was said upon

LICKBARROW V. MASON. 1047

bill of lading, contended, first, that, as between the vendor and
vendee of goods, the former has a right to stop the goods in
transitu, if the latter become insolvent before the delivery of
them. And, secondly, that such right cannot be divested by
the act of the vendee's indorsing over the bill of lading to a
third person. The first question has been so repeatedly deter-
mined, that it is scarcely necessary to cite any authorities in
support of it. (The plaintiff's counsel admitted the position.)
Then, in order to determine the second, it is material to con-
sider the nature of a bill of lading. A bill of lading cannot by
any means be construed into a contract on the part of the con-
signor to deliver the goods mentioned in it to the consignee ;
it is only an undertaking by the captain to deliver the goods to
the order of the shipper. As between the consignor and con-
signee, it is a bare authority to the captain to deliver, and
to the consignee to receive them. That this is the true nature
of a bill of lading appears from all the writers upon mercantile
law, as Molloy, Postlethwayte, and Beawes. If it be any sort
of instrument, it must be contended to amount to a contract by
the consignor to deliver the goods to the consignee ; but no
such contract arises upon it, because the consignor is not even
a party to it ; and no action could be framed upon it against
the consignor. Then, if it be only a bare authority to the one
to carry, and to the other to receive the goods, the consignee
cannot transfer a greater right than he has ; neither can the
riglit of the consignor be divested by the act of the consignee.
If a bill of lading be a negotiable instrument, and convey an
indefeasible property in the goods, it must be so by the custom
of merchants ; but such custom is not to be found in any of the
books treating upon the subject. There are cases which estab-
lish a contrary doctrine, in which the courts have held that the
rights of the assignees are th§ same as the rights of the original
consignees. It cannot, indeed be disputed but that, as between
the consignee and the indorsee, the indorsement of a bill of lading
is a complete transfer of the property which the consignee has
in it ; but the cases go no further. The case of Snee and Pres-
cot (a) is precisely similar to the present. There the bill of
lading was indorsed in blank, and afterwards indorsed over by
the consignee to his assignees : those assignees were some of

(a) 1 Atk. 245.

1048 LICKBAliUOW V. MASON.

the defendants in that suit, and they stood in the same situa-
tion with the present phvintiffs. In that case, before the goods
arrived, and after the indorsement of the bill of lading by tlie
consignee, the consignee having become a bankrupt, the goods
were stopped in transitu by order of the consignor, b}' an
indorsement of the bill of lading, wliich was left with him, to
another of the defendants ; there Lord JTardwicke decreed that
the indorsement did not absolutely transfer the property in the
goods in the event of the consignee's becoming a ])ankrupt
before the arrival of the goods ; that as the goods liad been
stop})ed in transitu, by order of the consignor, he had a right
to detain them till the sum which he was to advance to the
consignee on account of them was paid ; and that the surplus
arising from the produce of the goods should be paid to the
indorsees of the consignee. Now, uidess Lord Hardwieke had
been of opinion that the indorsement by the consignee did
not absolutely transfer the property in the goods, he would
have decreed that the indorsees should have l)een first paid
the money which tliey had advanced upon the credit of the bill
of lading, and tlu-n that tlie surplus .should have been paid
to the consignor ; ])ut instead of that he gave a priority to
the consignor. This doctrine is not only laid down in a court
of equity, but confirmed in a court of law in the case of
Saxnynac and Cvff (^a'), where the same question was tried
between the same parties as at present. There Salvetti, a mer-
chant in Italy, consigned a quantity of skins to Lingham, residing
in London, and sent him a bill of lading indorsed in blank. Ling-
ham, the consignee, indorsed it to Savignac for a valuable con-
sideration, at the invoice price, showing him at the same time
the letters of advice and the bills of parcels. The consignee
not accepting the bills of exchange which the consignor had
di'awn upon him for the amount of the goods, the consignor
indorsed the bill of lading remaining in his hands to Cuff, the
defendant, with orders to seize the goods Ijefore tliey got into
the hands of the consignee, which he did ; and the action was
brought against him by the indorsee of the consignee to recover
the value of the goods. Wallace, Solicitor-General, there argued
that by the indorsement of the bill of lading the property was
transferred. But Lord Mansfield was of opinion that the con-

(a) Sittings at Guildhall, cor. Lord Mansfield, Tr. 1778.

LICKBARKOW V. MASON. 1049

signor had a right to stop the goods in transitu in the case of
the insolvency of the consignee, and that the plaintiff, standing
in the situation with the original consignee, had lost his lien.
Lord Mansfield was first of opinion, that there was a distinction
between bills of lading indorsed in Ijlank and otherwise ; but he
afterwards abandoned that ground. But in that case, as the
consignor had in point of fact received 150/. from the consignee,
there was a verdict for the plaintiff for that sum. So that the
result of the verdict was, that the consignor was entitled, under
those circumstances, to retain all the goods consigned, deduct-
ing only the sum which he had actually received for part.
Both these cases establish the construction of the bill of lading
contended for : and it is to be observed that the verdict in the
latter was acquiesced in. And indeed to construe it otherwise
would be opening a great door to fraud, and would be placing
the indorsee of a consignee of a bill of lading in a better situa-
tion than the consignee himself in case of his insolvency.
Suppose the consignee assign over to a third person, who be-
comes insolvent before the delivery of the goods, such assignee
would then, notwithstanding his insolvency, have a right to
get the goods into his possession ; for if the act of indorsement
absolutely divests the property out of the consignor, he can
never afterwards get possession of the goods again ; or else
this consequence would follow, that vendor would have a
right to seize the goods in transitu till the indorsement, by
which his right would be divested, and that by the act of in-
solvency of the indorsee it would be revested. This has never
been considered to be the same sort of instrument as a bill of
exchange ; they are not assimilated to each other in any treatise
upon the subject : nay, bills of exchange are said to be sid juris.
In their nature they are different : a bill of exchange always
imports to be for value received ; but the very reverse is the
case with a bill of lading. For in few, if any, instances, is the
consignor paid for liis goods till delivery ; and bills of exchange
were first invented for tlie purpose of remitting money from
one country to another, which is not the case with bills of
lading. As to the case of Wright and Campbell (a), which may
be cited on the other side, it will perhaps be said that the
court awarded a new trial only on the ground of fraud ; but

("«) 4 Burr. 2046.

1050 LICKIJAUUOW V. MASON.

non constat that, if tliere had been no suspicion of fraud, a new
trial would not have been granted. So that the law cannot be
considered to have been decided in that case ; for when a new
trial is moved for, if the facts warrant it, the court awards a
new trial without going into the law arising upon those facts.
In such cases the law is still left open to be considered on a
different linding; since it would l)e nugatory to determine the
point of law, which may not perlia[)s be applicable to the facts
when found. At tlie most, there is only an inference of law to
be drawn from that case, which is not sufficient to overturn
established principles. Besides, this case is distinguishable
from that; for there it appeared that the consignee was the
factor of the consignor, and as such might bind his principal
by a sale.

Bearcroft^ contra. — The question is whether the bond fide
indorsement for a valual)le consideration of a bill of lading to a
third person is not an absolute transfer of the whole property ?
This question is of infinite importance to the mercantile world,
and has never yet been put in a way to receive a solemn de-
cision in a court of law. For at most it has only been con-
sidered in a court of equity upon equitable principles, or at
Nisi Prius in a case the correct state of which is to be doubted.
The form of the bill of lading is material to be attended to in
determining this case ; it is, that the goods are to be delivered
" to order or to assigns " ; therefore, on the very face of the in-
strument, there is an authority to the captain to deliver them
to the consignee or to his assigns; and the question here is,
who are his assigns ? As between the consignor and consignee
the rule contended for is not now to be disputed, since it has
been confirmed by so many authorities ; though, perhaps, it
were much to be wished that it had never been established:
but there will be danger in extending it farther. With respect
to the case of Snee and Prescot, when it is considered who
were the parties to the cause, in what court, and upon what
principles it was decided, it will not be found sufficient to de-
termine the present case. The actors, the plaintiffs, were not
the innocent purchasers of a bill of lading ; they were the
assignees of a bankrupt, and prayed by their bill to get posses-
sion of the goods, notwithstanding they had not paid for them.
Bat this is a case between the consignor and third persons who
have paid a valuable consideration for the goods ; that case was

LICKBARROW V. MASON. lOol

likewise in a court of equity, where the leading principle is,
that he ivho seeks equity^ must first do tvhat is equitable ; there
too the decision was founded in some measure, on the custom
of the Leghorn trade, and the construction of the statute re-
lating to mutual credit ; so that there Avere united a number
of circumstances which, taken altogether, induced Lord Hard-
tvieke''s decree, and wliich do not exist in the present case. And
it is to be remarked that Lord Hardwidze, thinking it a harsh
demand against the consignors, said, "he would lay hold on
anything to save the advantage" which the consignors had, by
regaining the possession of the goods before they got into the
hands of the indorsees of the consignee. Then, as to the case
of Savignac v. CuW^ that had not even the authority of a Nisi
Prius determination. Lord Mansfield gave no opinion upon
the question ; for though he said there was no doubt but that,
as between the vendor and the vendee, the former might seize
the goods in trarisitu, if the latter became insolvent before they
were delivered, yet there he stopped : so that the inclination of
his mind may be presumed to have been against extending the
rule. And, after all, the whole circumstance of that case were
left to the consideration of a jur}'. Since Lord Raymond's
time («) it has been taken to be clear and established law that
a general indorsement of a bill of lading does transfer the
property. And HoU., C. J., then said, "that a consignee of a
bill of lading has such a property that he may assign it over."
It has now been contended that the right of the consignor
ought not to be divested by the act of the consignee : but it is
not by the act of the consignee alone ; for the consignor has
by his own act enabled the consignee to defeat his right. If
he had been desirous of restraining the negotiability of the bill
of lading, instead of making a general indorsement, he should
have made a special indorsement to his own use. And then
the holder of the bill of lading would have been considered
as a trustee for the consignor. The custom of merchants has
established that the delivery of a bill of lading transfers the
Avhole property, Evans v. Marflett, 1 Lord Raym. 271 ; Wright
V. Campbell, -l Bvirr. 204(3; and CaJdiveUx. Ball, ante, 1 vol. [T.
R.] 205 (5). Then it has been said, that a bill of lading is not
transferable like a bill of exchange : but the custom of mer-

(a) Lord Kayiii. 271. {b) Vide Hihhcrt v. Carter, 1 T. K. 745.

1052 LICKBARROW V. MASON.

chants has made that transferable wliich in its nature perhaps
is not so; and the cases alcove referred to decide that point.
Thoiigli a new trial in the case of Wn'(/ht v. Campbell was
granted on a suspicion of fraud, and the law was not expressly-
adjudged ; yet from what was said by the Court it nuiy be col-
lected that no new trial would have been awarded, if no fraud
had existed; and the opinion of Lord Mansfield, as far as it
goes, is expressly in point. But, above all arguments, public
convenience ought to have a considerable influence in the de-
cision of this question. By the constant course and the uni-
versal consent and opinion of merchants, bills of lading are
negotiable ; it is highly convenient to trade that they should
be so; and if this case should be determined against the plain-
tiffs, one of the })riiu'ipal currents of trade will be stopped:
besides, it will be a hardship on an innocent vendee.

Shepherd, in reply. — Though there may be some hardship
on the vendee if he be to suffer, yet the hardship would be
equally great on the vendor, who would by a decision against
him be compelled to deliver up the possession of his goods,
though at the time of the delivery he knew that he should not
receive any consideration for them. But convenience requires
that, if one of these two innocent persons must suffer, the loss
should be sustained by the consignee. For when a vendor
consigns his goods, he knows that by the general law he has a
right to stop them in transitu, if the consignee become insolvent
before delivery. But when an indorsee takes an assignment
of a bill of lading, he takes it with the knowledge of, and sub-
ject to, that general right which the vendor has. Though the
case of jSnee v. Prescot was determined in a court of equity, yet
that court could not alter the effect and nature of a legal
instrument ; which it must have done in that case if the right
of an indorsee is to be preferred to the consignor. Suppose A.
sends a bill of lading of goods to B., and the goods themselves
are in fact never sent out of his possession ; if the indorsement
of the bill of lading can be said to transfer the property, the
indorsee would have a right to recover the goods as against the
original consignor, who had never parted with the possession of
them. So that the rule contended for would not only divest
the right which the consignor has to seize the goods in transitu,
but would also compel him to part with his goods, without
receiving any consideration, although he had never relinquished

LiCKBARRow V. :mason. 1053

his iDOssession. The meaning of the dit-tum of Lord Rolt, in
Uvans V. Martlett, is only that the consignee may assign over
that right which he has. The case of Caldtvell v. Ball was
merely a question between two solvent indorsees, both of Avhom
had an equitable title ; and that case only decided that he who
first got possession of one of the bills of lading was entitled to
the goods ; and there, too, the Court determined in favour of
him who had the possession.

Ashurst, J. — As this was a mercantile question of ver}^
great importance to the public, and had never received a
solemn decision in a court of law, we were for that reason
desirous of having the matter argued a second time, rather than
on account of any great doubts which we entertained on the
first argument. We may lay it down as a broad general prin-
ciple, that ivTierever one of two innocent persons must suffer by
the acts of a third, he ivho has enabled such third jyersoii to occa-
sion the loss must sustain it (ci). If that be so, it will be a
strong and leading clue to the decision of the present case. It
has been argued, that it would be very hard on a consignor,
who had received no consideration for liis goods, if he should
be obliged to deliver them up in case of the insolvency of the
consignee, and come in as a creditor under his commission for
what he can get. That is certainly true : but it is a hardship
which he brings upon himself. When a man sells goods, he
sells them on the credit of the buyer : if he delivers the goods,
the property is altered, and he cannot recover them back
again, though the vendee immediately become a bankrupt.
But where the delivery is to be at a distant place, as between
the vendor and vendee, the contract is ambulatory till delivery ;
and therefore, in case of the insolvency of the vendee in the
meantime, the vendor may stop the goods in transitu. But, as
between the vendor and third persons, the delivery of a bill
of lading is a delivery of the goods themselves ; if not, it would
enable the consignee to make the bill of lading an instrument
of fraud. The assignee of a bill of lading trusts to the indorse-
ment ; the instrument is in its nature transferable ; in this
respect, therefore, this is similar to the case of a bill of ex-

(a) [See Swan v. The British Aus- N. 881; Odell v. Atherton, 7 H. & N.

tralasian Co., 7 H. & N. 603; 31 L. J. 786; Collingwood v. Berkeley, 15 C.

Exch. 425, S. C. ; affirmed in error, B. N. S. 145; Babcock v. Lawson, 4

32 L. J. 280; Foster v. Green, 7 H. & Q. B. D. at p. 400.]

1054 LICKBAKROW V. MASON.

change. If the consignor liad intended to restrain the negotia-
Ijility of it, he sliould hiive confined tlie delivery of the goods to
the vendee only: but he has made it an indorsahle instrument.
So it is like a bill of exchange ; in which case, as l)etween the
drawer and the payee, the consideiation may be gone into, yet
it cannot between the drawer and the indorsee; and the reason
is, because it would be enabling either of the original parties to
assist in a fraud. The rule is founded purely on princi})les of
law and not on the custom of merchants. The custom of mer-
chants only establishes that such an instrument may be in-
dorsed; but the effect of that indorsement is a (piestion of law,
which is, that as between the original parties the consideration
may be inquired into ; though when third persons are con-
cerned, it cannot. This is also the case with respect to a bill
of lading. Though the bill of lading in this case was at first
indorsed in blank, it is precisely the same as if it had been
originally indorsed to this person ; for when it was tilled up
with his name, it was the same as if made to him only. Then
what was said by Lord Marufiehl in the case of Wrii/ht v.
CamphcU goes the full length of this doctrine : " If the goods
be bond fide sold by the factor at sea (as they may be where no
other delivery can be given), it will be good notwithstanding
the statute 21 Jac. 1, c. 19. The vendee shall hold them by
virtue of the bill of sale, though no actual possession is de-
livered: and the owner can never dispute with the vendee,
because the goods were sold bond fide, and by the owner's
own authority." Now in this case the goods were transferred
by the authority of the vendor, because he gave the vendee a
power to transfer them ; and being sold by his authority, the
property is altered. And I am of opinion that this right of the
assignee could not be divested by any subsequent circum-
stances.

Buller, J. — This case has been very fully, very elaborately,
and very ably argued, both now and in the last term ; and
though the former arguments on the part of the defendant did
not convince my mind, yet they staggered me so much that I
wished to hear a second argument. Before I consider the
effect of the several authorities which have been cited, I w411
take notice of one circumstance in this case which is peculiar
to it ; not for the purpose of founding my judgment upon it,
but because I would not have it supposed in an}- future case

LICKBAEROW V. MASON. ' 1055

that it passed unnoticed, or that it may not hereafter have any
effect Avhich it ought to have. In this case it is stated that
there were four bills of lading : it appears by the books treating
on this subject, that according to the common course of mer-
chants there are only three ; one of which is delivered to the
captain of the vessel, another is transmitted to the consignee,
and the third is retained by the consignor himself, as a testi-
mony against the captain in case of any loose dealing. Now, if
it be at present the established course among merchants to have
only three bills of lading, the circumstance of there being a
fourth in this case might, if the case had not been taken out of
the hands of the jury by the demurrer, have been proper for
their consideration. I am aware that that circumstance appears
in the bill, on which is written, "in witness the master hath
affirmed to four bills of lading, all of this tenor and date." But
we all know that it is not the practice either of persons in trade
or in the profession to examine very minutely the words of an
instrument which is partly printed and partly written ; and if
we only look at the substance of such an instrument, this may
be the means of enabling the consignee to commit a fraud on an
innocent person. Then how stood the consignee in this case?
He had two of the bills of lading, and the captain must have a
third ; so that the assignee could not imagine that the consignor
had it in his power to order a delivery to any other person.
But I mean to lay this circumstance entirely out of my consid-
eration in the present case, which I think turns wholly on the
general question : and I make the question even more general
than was made at the bar, namely, whether a hill of lading is hy
law a transfer of the 'property (a). This question has been
argued upon authorities : and before 1 take notice of any par-
ticular objections which have been made, I will consider those
authorities. The principal one relied on by the defendants is
that of Snee v. Prescot. Now, sitting in a court of law, I should
think it quite sufficient to say, that that was a determination in
a court of equity, and founded on equitable principles. The
leading maxim in that court is, that he who seeks equity must
first do equity. I am not disposed to find fault with that deter-
mination as a case in equity ; but it is not sufficient to decide
such a question as that now before us. Lord Hardwieke has,

(rt) [See on this question Sewell v. Bicrdick, 10 App. Ca.]

1056 LICKBAUKOW V. MASON,

with his usual caution, enumerated every circumstance wliich
existed in the case: and, indeed, he has been so particular, that
if the printed note of it be accurate, which I doubt, it is not an
authority for any case which is not precisely similar to it. 'I'lie
only point of law in that case is upon the forms of the bills of
lading ; and Lord Hardwieke thought there was a distinction
between bills of lading indorsed in blank, and those indorsed to
parti(!ular persons : but it was i)roperly admitted at the bar tliat
that distinction cannot now be supported. Thus the matter
stood till within these thirty years ; since that time the com-
mercial law of tliis country has taken a very different turn from
what it thd before. We find in iS'nce v. Prcscot that Lord
Hardwieke himself was proceeding with great caution, not
establishing any general principle, but decreeing on all the
circumstances of the case put together. Before that periinl we
find that in courts of law all the evidence in mercantile cases
were thrown together ; they were left generally to a jury, and
they produced no established principle. From that time Ave all
know the great study has been to find some certain general
princi^iles, which shall be known to all mankind, not only to
rule the particular case then under consideration, but to serve
as a guide for the future. j\Iost of us have heard these princi-
ples stated, reasoned upon, eidarged, and explained, till we
have been lost in admiration at the strength and stretch of the
human understanding. And I shcjuld be very sorry to find
myself under a necessity of differing from any case on this
subject which has been decided by Lord Mdnxfield, who may
be truly said to be the founder of the commercial law of this
country. I hope to show, before I have finished my judgment,
that there has been no inconsistency in any of his determina-
tions : but if there had, if I could not reconcile an opinion
which he had delivered at Nisi Priiis with his judgment in this
court, I should not hesitate to adopt the latter in preference to
the former ; and it is but just to say, that no judge ever sat
here more ready than he was to correct an opinion suddenly
given at JVisi Prius. First, as to the case of Wright v. Camp-
hell, that was a very solemn opinion delivered in tliis court. In
my opinion that is one of the best cases that we have in the law
on mercantile subjects. There are four points in that case,
which Lord Mansfield has stated so extremely clear that they
cannot be mistaken : The first is, what is the case as between

LICKBARROW V. MASON. 1057

the owner of the goods and the factor ; the second, as between
the consignor and the assignee of the factor with notice;
thirdly, as between the same parties without notice; and,
fourthly, as to the nature of a bill of -sale of goods at sea in
general. It is to be recollected that the case of Wri<)ht v.
Camphell was decided by the judge at Nisi Prius upon the
ground that the bill of lading transferred the whole property at
law: and when it came before this court on a motion for a new
trial. Lord Mansfield confirmed that opinion : but a new trial
was granted on a suspicion of fraud; therefore it is fair to
infer, that if there had been no fraud, the delivery of the bill of
lading would have been hnal. If there be fraud, it is the same
as if the question were tried between the consignor and the
original consignee. According to a note of Wright v. Camp-
hell, which I took in court. Lord Mansfield said, that since the
case in Lord Raymond, it had always been held that the de-
livery of a bill of lading transferred the property at law ; if so,
every exception to that rule arises from equitable considera-
tions which have been adopted in courts of law. The next
case is that of Savignac v. Cuff, the note of which is too loose
to be depended upon : but there is a circumstance in that case
which might afford ample ground for the decision ; for I can-
not suppose that Lord Mansfield had forgotten the doctrine
which he laid down in this court in Wright v. Camphell. There
he observed very minutely on what did not appear at the trial,
that no letters were produced, and that no price was fixed for
the goods : but in Savigyiac v. Cuff, the plaintiff had not only
the bills of lading and the invoice, but he had also the letters
of advice, from which the real transaction must have appeared ;
and if it appeared to him that Selvetti had not been paid for
the goods, that might have been a ground for the determination.
The case of Hmiter v. Beal (a) does not come up to the point
now in dispute ; it only determines what is admitted, that, as
between the vendor and vendee, the property is not altered till
delivery of the goods. With respect to the case of Stokes v.
La Riviere (h), perhaps there may be some doubt about the
facts of it: however, it was determined upon a different
ground ; for the goods were in the hands of an agent for both
parties : that case, therefore, does not impeach the doctrine

(a) Sittings after Trin. 1785, at Guild- (h) Hil. 25 G. 3.
hall, before Lord Mansfield, C. J.

1058 LICKBAIIROW V. MASON.

laid down in Wright v. Campbell. It has been argued at the
bar, that it is impossible for the holder of a bill of lading to
bring an action on it against the consignor ; perhaps that argu-
'ment is well founded : no special action on the bill of lading
has ever been brought (a) ; for if the bill of lading transfer the
property, an action of trover against the captain for non-deliv-
ery, or against any other person who seizes the goods, is a
proper form of action. If an action be brought by a vendor
against a vendee, between Avhom a bill of lading has passed, the
proper action is for goods sold and delivered. Then it has
been said that no case has yet decided that a bill of lading does
transfer the property : but in answer to that it is to be observed,
that all the cases upon the subject — Evans v. 3Iartlett, Wright
V. Campbell, and Caldwell v. Ball, and the universal under-
standing of mankind — preclude that question. The cases
between the consignor and consignee have been founded
merely on principles of equity, and have followed up the
principle of S/iee v. Prescot ; for if a man has bought goods and
has not paid for them, and cannot pay for them, it is not equi-
table that he sliould prevent the consignor from getting his
goods back again, if he can do it before they are in fact de-
livered. There is no weight in the argument of hardship on
the vendor : at any rate that is a bad argument in a court of
law ; but in fact there is no hardship on him, because he has
parted with the legal title to the consignee. An argument was
used with respect to the difficulty of determining at what time
a bill of lading shall be said to transfer the property, especially
in a case where the goods were never sent out of the merchant's
warehouse at all: the answer is, that under those circumstances
a bill of lading could not possibly exist, if the transaction
were a fair one ; for a bill of lading is an acknowledgment by
the captain, of having received the goods on board his ship :
therefore it would be a fraud in the captain to sign such a bill
of lading, if he had not received goods on board ; and the con-
signee would be entitled to his action against the captain for
the fraud. As the plaintiff in this case has paid a valuable con-
sideration for the goods, and there is no colour for imputing
fraud or notice to him, I am of opinion that he is entitled to
the judgment of the Court.

(a) [See now as to the right to sue by statute, post, in noiS.]

LlCKBAKIiOW V. MASON. 10')9

Grose, J. — After this case had been so ehiboratel}- spoken to
by my brethren, it is not necessary for me to enter fully into tlie
question, as I am of the same opinion with them. But I think
that the importance of the subject requires me to state the gen-
eral grounds of my opinion. I conceive this to be a mere ques-
tion of law, whether, as between the vendor and the assignee of
the vendee, the bill of lading transfers the property. I think
that it does. With respect to the question as between the orig-
inal consignor and consignee, it is now the clear, known, and
established law that the consignor may seize the goods m tran-
situ, if the consignee become insolvent before the delivery of
them. But that was not always the law. The first case of that
sort was that of Wiseman v. Vandeputt in Chancery («), when,
on the first hearing, the Chancellor ordered an action of trover
to be brought, to try whether the consignment vested the prop-
erty in the consignees ; and it was then determined in a court
of law that it did ; but the Court of Equity thought it right to
interpose and give relief: and since that time it has always
been considered, as between the original parties, that the con-
signor may seize the goods before they are actually delivered to
the consignee in case of the insolvency of the consignee. But
this is a question between the consignor and the assignee of the
consignee, who do not stand in the same situation as the orig-
inal parties. A bill of lading carries credit with it ; the con-
signor by his indorsement gives credit to the bill of lading, and
on the faith of that, money is advanced. The first case that I
find where an attempt was made to introduce the same law be-
tween the consignor and the indorsee of the consignee, is that
of Snee v. Prescot ; but as my brother Buller has already made
so many observations on that case, it would be but repetition in
me to go over them again, as I entirely agree with him in them
all, as well as in those which he made on the other cases.
Therefore I am of opinion that there should be judgment for
the plaintiff.

Judgment for the plaintiff (J).

(a) 2 Vern. 203. the record being afterwards removed

(6) This judgment was afterwards into tlie House of Lords, a venire de

reversed in tlie Exchequer Chamber, novo was awarded in June, 1793.

vide Mason V. LicJcbarrow, infra. But Vide post, p. 7di.

1000 LlCKBAltllOW V. MASUN.

MASON AND OTHERS V. LICKBARROW AND OTHERS, IN THE EX-
CHEQUER CHAMBER, IN ERROR.

The defe7idants hi the or'ujinal action, having brought a writ of
error in the Exchequer Chamber, after two arguments, the follow-
ijig judgment of that court was then delivered by (a)

Lord Loughborough. — This case comes before the court on a
demurrer to the evidence ; the general question, therefore, is,
whether the facts offered in evidence by the pLaintifTs in the
action are sulhcient to warrant a verdict in their favour?

The facts are shortly these : On the 2:ind of July, 1786, Messrs.
Turing sliipped on board the ship Endeavour, of whicli Holmes
was master, at Middleburg, to be carried to Liverpool, a cargo
of goods by the order and directions and on tlie account of Free-
man, of Rotterdam, for which, of the same date, bills of lading
were signed on behalf of the master, to deliver the goods at
Liverpool, specified to be shipped by Turings to order or to
assigns. On the same 22nd of July, two of the bills of lading,
indorsed in blank by Turings, were transmitted by them, to-
gether with an invoice of the goods, to Freeman at Rotterdam,
and were duly received by him, that is, in the course of post,
one of the bills being retained by Turings. I take no notice of
there being four bills of lading, because on that circumstance
I lay no stress. On the 25th of July, bills of exchange for a
sum of 477/., being the price of the goods, were drawn by
Turings, and accepted by Freeman at Rotterdam ; and Freeman
on the same day transmitted to the plaintiffs in the action, mer-
chants at Liverpool, the bills of lading and invoice, which he
had received from Turings, in order that the goods might be
sold by them on his account ; and of the same date drew upon
them bills to the amount of 520?., which were duly accepted,
and have since been paid by them ; and for which they have
never been reimbursed by Freeman, who became a bankrupt on
the 15th of August following. The bills accepted by Freeman,

(a) Held in Cam. Scacc. that where the bills of lading to a third person

the consignee of goods becomes in- for a valuable consideration; the

solvent, the consignor may stop them right of the consignor not being di-

in tranititu before the consignee gains vested by the assignment. But this

possession. In such cases also the judgment was reversed, and the latter

consignor may stop the goods in point is now settled otherwise.
transitu, though the consignee assign

LICKBARROW V. MASON. 1061

for the price of the goods shipped by Tvirings, had not Ijecome
due on the 15th of August, but on notice of his bankruptcy
they sent tlie bill of lading which remained in their custody to
the defendants at Liverpool^ with a special indorsement to de-
liver to them and no other: which the defendants received on
the 28th of August, 1786, together with the invoice of the goods
and a power of attorney. The ship arrived at Liverpool on the
28th of August, and the goods were delivered by the master, on
account of Turings, to the defendants, who, on demand and
tender of freight, refused to deliver the same to the plaintiffs.

The defendants, in this case, are not stakeholders, but they
are in effect the same as Turings, and the possession they have
got is the possession of Turings. The plaintiffs claim undei'
Freeman; but though they derive a title under him, they do
not represent him, so as to be answerable for his engagements ;
nor are they affected by any notice of those circumstances
which would bar the claim of him or his assignees. If they
have acquired a legal right, they have acquired it honestly ;
and if they have trusted to a bad title, they are innocent suf-
ferers. The question then is, whether the plaintiffs have a
superior legal title to that right which, on principles of natural
justice, the original owner of the goods not paid for has to
maintain that possession of them, which he actually holds at
the time of the demand?

The argument on the part of the plaintiffs, asserts that the
indorsement of the bill of lading by the Turings is an assign-
ment of the property in the goods to Freeman, in the same
manner as the indorsement of a bill of exchange is an assign-
ment of the debt : that Freeman could assign over that prop-
erty, and that by delivery of the bill of lading to the plaintiffs
for a valuable consideration, they have a just right to the prop-
erty conveyed by it, not affected by any claim of the Turings,
of which they had no notice. On the part of the defendant it is
argued, tliat the bill of lading is not in its nature a negotiable
instrument ; that it more resembles a chose in action ; that the
indorsement of it is not an assignment that conveys any inter-
est, but a mere authority to the consignee to receive the goods
mentioned in the bill ; and therefore it cannot be made a secur-
ity by the consignee for money advanced to him ; but the per-
son Avho accepted it must stand in the place of the consignee,
and cannot gain a better title than he had to give. As these

1062 LICICBARROW V. MASON.

propositions on either side seem to be stated too loosely, and as
it is of great importance that the nature of an instrument so
frequent in commerce as a bill of lading should be clearly de-
fined, I think it necessary to state my ideas of its nature and
effect : —

A bill of lading is the written evidence of a contract for the
carriage and delivery of goods sent by sea for a certain freight.
The contract in legal language is a contract of bailment ; 2
Lord Raym. 912. In the usual form of the contract the
undertaking is to deliver to the order or assigns of the shipper.
By the delivery on board, the ship-master acquires a special
property to support that possession which he holds in the right
of another, and to enable him to perform his undertaking. The
general property remains with the shipper of the goods until he
has disposed of it by some act sulheicnt in law to transfer prop-
erty. The indorsement of the bill of lading is simiily a direc-
tion of the delivery of the goods. When this indorsement is in
blank, the holder of the bill of lading may receive the goods^
and his receipt will discharge the ship-master ; but the holder
of the bill, if it came into his hands casually without any just
title, can acquire no property in the goods, A special indorse-
ment defines the person appointed to receive the goods ; his
receipt or order would, I conceive, be a sufficient discharge to
the ship-master ; and in this respect, I hold the bill of lading to
be assignable. But what is it that the indorsement of the bill
of lading assigns to the holder or the indorsee ? A right to
receive the goods and to discharge the ship-master, as having
performed his undertaking. If any further effect be allowed to
it, the possession of a bill of lading would have greater force
than the actual possession of the goods. Possession of goods
is primd facie evidence of title ; but that possession may be
precarious, as of a deposit ; it may be criminal, as of a thing
stolen ; it may be qualified, as of things in the custody of
a servant, carrier, or a factor. Mere possession, without a
just title, gives no property ; and the person to Avhom such
possession is transferred by delivery, must take his hazard
of the title of his author. The indorsement of a bill of lading
differs from the assignment of a chose in action, that is to say,
of an obligation, as much as debts differ from effects. Goods in
pawn, goods bought before delivery, goods in a Avarehouse, or
on ship-board, may all be assigned. The order to deliver is an

LICKBARROW V. MASON. 1063

assignment of the thing itself, wliich ought to be delivered on
demand, and the right to sue if the demand is refused, is at-
tached to the thing. The case in 1 Lord Raym. 271 was well
determined on the princij^al point, that the consignee might
maintain an action for the goods, because he had either a
special property in them, or a right of action on the contract :
and I assent to the dictum, that he might assign over his right.
But the question remains, What right passes by the first in-
dorsement, or by the assignment of it? An assignment of
goods in pawn, or of goods bought but not delivered, cannot
transmit a right to take the one without redemption, and the
other without the payment of the price. As the indorsement
of a bill of lading is an assignment of the goods themselves, it
differs essentially from the indorsement of a bill of exchange ;
which is the assignment of a debt due to the payee, and which,
by the custom of the trade, passes the whole interest in the
debt so completely, that the holder of tlie bill for a valuable
consideration without notice, is not affected even by the crime
of the person from whom he received the bill.

Bills of lading differ essentially from bills of exchange in
another respect.

Bills of exchange can only be used for one given purpose,
namely, to extend credit by a speedy transfer of the debt which
one person owes another, to a third person. Bills of lading
may be assigned for as many different purposes as goods may
be delivered. They may be indorsed to the true owner of the
goods by the freighter, who acts merely as his servant. They
may be indorsed to a factor to sell for the owner. They may
be indorsed by the seller of the goods to the buyer. They are
not drawn in any certain form. They sometimes do and some-
times do not express on whose account and risk the goods are
shipped. They often, especially in time of war, express a false
account and risk. They seldom, if ever, bear upon the face of
them any indication of the purpose of the indorsement. To
such an instrument, so various in its use, it seems impossible to
apply the same rules as govern the indorsement of bills of ex-
change. The silence of all authors treating of commercial law
is a strong argument that no general usage has made them
negotiable as bills. Some evidence appears to have been given
in other cases (a) that the received opinion of merchants was
(a) Snee v. Prescot, 1 Atk. 245 ; Fearon v. Bowers, post.

1064 LICKB ARROW V. MASON.

against their being so negotiable. And unless there was a
clear, established general usage to place the assignment of a
bill of lading upon the same footing as the indorsement of a bill
of exchange, that country which should first adopt such a law
would lose its credit with the rest of the commercial world.
For the immediate consequence would be to prefer the interest
.of the resident factors and their creditors, to the fair claim of
the foreign consignor. It would not be much less pernicious to
its internal commerce : for every case of this nature is founded
in a breach of confidence, alwaj^s attended with a susi)icion of
collusion, and leads to a dangerous and false credit, at the liaz-
ard and expense of tlie fair trader. If bills of lading are not ne-
gotiable as bills of exchange, and yet are assignable, Avhat is the
consequence? That the assignee by indorsement must inquire
under what title the bills have come to the hands of the person
from whom he takes them. Is this more difficult than to in-
quire into the title by which the goods are sold or assigned?
In the case of (a) ffartop v. Hoare, jewels deposited with a
goldsmith were pawned by him at a banker's. Was there any
imputation, even of neglect, in a banker trusting to the appar-
ent possession of jewels by a goldsmith? Yet they were the
property of another, and the banker suffered the loss. It is re-
ceived law, that a factor may sell, but cannot pawn, the goods
of his own consignor, Patterson v. Tanh, 2 Str. 1178. The per-
son, therefore, who took an assignment of goods from a factor
in security, could not retain them against the claim of the con-
signor ; and yet, in this case the factor might have sold them
and embezzled the money. It has been argued, that it is neces-
sary in commerce to raise money on goods at sea, and this can
only be done by assigning the bills of lading. Is it then
nothing, that an assignee of a bill of lading gains by the
indorsement ? He has all the right the indorser could give
him : a title to the possession of the goods when they arrive.
He has a safe security, if he has dealt with an honest man.
And it seems as if it could be of little utility to trade, to extend
credit by affording a facility to raise money by unfair dealing.
jSIoney will be raised on goods at sea, though bills of lading
should not be negotiable, in every case where there is a fair
ground of credit : but a man of doubtful character will not find
it so easy to raise money at the risk of others.
(a) 2 Str. 1187; 1 Wils. 8.

LICKBARROW V. MASON. 1065

The conclusions which follow from this reasoning, if it be
just, are — 1st. That an order to direct the delivery of goods
indorsed on a bill of lading is not equivalent, nor even analogous,
to tlie assignment of an order to pay money by the indorsement
of a bill of exchange. 2ndly. That the negotialility of bills,
and promissory notes, is founded on the custom of merchants,
and positive law ; but, as there is no positive law, neither can
any custom of merchants apply to such an instrument as a bill
of lading. 3rdly. That it is, therefore, not negotiable as a bill,
but assignable ; and passes such right, and no better, as the
person assigning had in it.

This last proposition I confirm by the consideration, that
actual delivery of the goods does not of itself transfer an
absolute ownership in them, without a title of property; and
that the indorsement of a bill of lading, as it cannot in any
case transfer more right than the actual delivery, cannot in
every case pass the property ; and I therefore infer, that the
mere indorsement can in no case convey an absolute property.
It may, however, be said, that admitting an indorsement of a
bill of lading does not in all cases import a transfer of the
property of the goods consigned, yet where the goods, when
delivered, would belong to the indorsee of the bill, and the in-
dorsement accompanies a title of property, it ought in law to
bind the consignor, at least with respect to the interest of third
parties. This argument has, I confess, a very specious appear-
ance. The whole difficulty of the case rests upon it ; and I am
not surprised at the impression it has made, having long felt
the force of it myself. A fair trader, it is said, is deceived by
the misplaced confidence of the consignor. The purchaser sees
a title to the delivery of the goods placed in the hands of the
man who offers them to sale. Goods not arrived are every
day sold without any suspicion of distress, on speculations of
the fairest nature. The purchaser places no credit in the con-
signee, but in the indorsement produced to him, which is the
act of the consignor. The first consideration which affects this
argument is, that it proves too much, and is inconsistent Avitli
the admission. But let us examine what the legal right of the
vendor is, and whether, with respect to him, the assignee of a
bill of lading stands on a better ground than the consignee
from whom he received it. I state it to be a clear proposition,
that the vendor of goods not paid for may retain the possession

lOGG LICKBARROW V. MASON.

against the vendee ; not by aid of any equity, but on grounds
of law. Our oldest books (a) consider the payment of the })riee
(day not being given (^b}') as a condition precedent implied in
the contract of sale ; and that the vendee cannot take the
goods, nor sue for them, without tender of the price. If day
had been given for payment, and the vendee could support an
action of trover against the vendor, the price unpaid must be
deducted from the damages, in the same manner as if he had
brought an action on the contract, for the non-delivery. Snee v.
Prescot, 1 Atk. 245. The sale is not executed before delivery :
and in the simplicity of former times, a delivery into the actual
possession of the vendee or his servant was ahvaj^s supposed.
In the variety and extent of dealing Avliich the increase of
commerce has introduced, the delivery may be presumed from
circumstances, so as to vest a property in the vendee. A
destination of the goods l)}- the vendor to the use of the
vendee ; the marking them, or making them up to be delivered ;
the removing them for the purpose of l)eing delivered, may
all entitle the vendee to act as owner, to assign, and to main-
tain an action against a third person, into Avliose hands they
have come. But the title of the vendor is never entirely
divested, till the goods have come into the possession of the
vendee. He has therefore a complete right, for just cause, to
retract the intended delivery, and to stop the goods in transitu.
The cases determined in our courts of law have confirmed this
doctrine, and the same law obtains in other countries.

In an action tried before me at Cruildhall^ after the last Trin-
ity Term, it appeared in evidence, that one Bowering had
brought a cask of Inchgo of Verrulez and Co. at Amsterdam^
which was sent from the Avarehouse of the seller, and ship]:)ed
on board a vessel commanded by one TuUoh, by the appoint-
ment of Bowering. The bills of lading were made out, and
signed by TuUoh, to deliver to Bowering or order, who imme-
diately indorsed one of them to his correspondent in London^
and sent it by the post. Verrulez, having information of Bow-
ering's insolvency before the ship sailed from the Texel, sum-
moned TuUoh the ship-master before the court at Amsterdam.,
who ordered him to sign other bills of lading, to the order of

(a) See Hob. 41, and the Year Book {h) [See Martindale v. Smith, 1 Q.

there cited. B. 389.]

LICKBARROAV V. MASON.

1061

Verrulez. Upon the arrival of the ship in London^ the ship-
master delivered the goods, according to the last bills, to the
order of Verrulez. This case, as to the practice of merchants,
deserves particular attention, for the judges of the court at
Amsterdam are merchants of the most extensive dealings, and
they are assisted by very eminent lawyers. The cases in our
law, which I have taken some pains to collect and examine, are
very clear upon this point. Snee v. Prescot, though in a court
of equity, is professedly determined on legal grounds by Lord
Hardwicke, who was well versed in the principles of law ; and
it is an authority, not only in support of the right of the owner
unpaid to retain against the consignee, but against those claim-
ing under the consignee by assignment for valuable considera-
tion, and without notice. But the case of Fearon v. Boivers (a),

(ffl) Fearon v. Boioers, Guildhall,
Mai'cli 28, 1753, coram Lee, C. J.

Detinne against the master or cap-
tain of a sliip. On the general issne
pleaded, the case appeared to be, that
one Hall, of Salishurtj, had written to
Aslvell and Co., merchants at Malaga,
to send him 20 bntts of olive oil,
which Askell accordingly bought, and
shipped on board the ship Tavistocli,
of which tlie defendant was com-
mander, who signed three bills of
lading acknowledging tlie receipt of
the goods, to be delivered to the
order of the sliipper. In the bills
was tlie usual clause — that one being
performed, the other two should be
void.

The goods being thus shipped,
Askell sent an invoice thereof, and
also one of the bills of lading, to
Hall, indorsed by Askell, to deliver
the contents to Hall; and Askell at
the same time sent to Jones, liis part-
ner in England, a bill of exchange
drawn on Hall for the amount of the
price of the oil ; and also another of
the l)ills of lading indorsed by Askell
to deliver the contents to Jones. Tlie
bill of exchange w'as presented to
Hall, but not being paid by him it
was returned protested ; wliereupon
Jones, on the 1st of September, 1752

(a day or two after the ship arrived) ,
applied to the defendant to deliver
the oils to him, and having produced
his bill of lading, tlie defendant
promised to deliver them accord-
ingly. But the ship not being re-
ported to the custom-house, the oils
could not be then delivered ; and be-
fore they were delivered, the plaintifl',
on the 3rd of September, produced
the bill of lading sent to Hall, with
an indorsement thereon by Hall to
deliver the contents to the plaintiff,
and also tlie invoice, upon the credit
of which he had advanced to Hall
200?. — Notwithstanding this, the de-
fendant afterwards delivered the oils
to Jones, and took his receipt for
tliem on the back of the bill of lad-
ing.

For the plaintifl' it was contended,
that the bill of lading indorsed to
Hall, and by him to the plaintifl", had
fixed tlie property of the goods in
the ])Iaintitt'. Tliat the consignee of a
bill of lading has such a property that
he may assign it over ; Evans v. Mart-
lett, 1 Lord Eaym. 271. There it is
laid down, if goods are by bill of lad-
ing consigned to A., A. is the owner,
and must bring the action against the
master of the ship if tliej' are lost :
but if the bill be special to deliver to

10G8

LICKBARUOW V. MASON.

tried before Lord Chief Justice Lee^ is a case at law, and it
is to the same effect as Snee v. Frescot. So also is the
case of the Assignees of Burghall v. HoioardXa'), before Lord

A. for the use of B., B. ought to
bring the action; but if the bill be
general, and the invoice only shows
they are upon the account of B., A.
ought to bring the action, for the
property is in him, and B. has only a
trust ; per totam curiam. Holt, C. J.,
said the consignee of a bill of lading
has such a property that he may
assign it over; and SIiov:er said, it
had been adjudged so in the Ex-
chequer. It has been further in-
sisted, that the plaintiff had advanced
the 200Z. on the credit of the bill of
lading, in the course of trade, and no
objection was made that the oils had
not been paid for; for that would
prove too nuicli, namely, that the bill
of lading was not negotiable. And
the indorsement was compareil to the
indorsement of a bill of exchange,
which is good, though the ])ill origi-
nally was obtained by fraud. Mer-
chants were examined on both sides,
and seemed to agree that the indorse-
ment of a bill of lading vests the
property; but that the original con-
signor, if not paid for the goods, had
a right, by any means that he could,
to stop their coming to the hands of
the consignee till paid for. One of
the witnesses said, he had a like case
before the Chancellor, who upon that
occasion said, he thought the con-
signor had a right to get the goods
in such a case back into his hands
in any Avay, so as he did not steal
them.

It also appeared by the evidence of
merchants and captains of ships, that
the usage was, where three bills of
lading were signed by the captain,
and indorsed to different persons, the
captain had a right to deliver the
goods to whichever he thought prop-
er ; that he was discharged by a de-
livery to either with a receipt on the

bill of lading, and was not obliged to
look into the invoice or consider the
merits of the different claims.

Lee, C J., in summing up the evi-
dence, said that, to be sure, nakedly
considered, a bill of lading transfers
the property, and a right to assign
that property by indorsement : that
the invoice strengthens that right by
showing a farther intention to trans-
fer the property. But it ai)peared in
this case, that Jones had the other
bill of lading to be as a curb on Hall,
who in fact had never paid for the
goods. And it appeared by the evi-
dence, that, according to the usage of
trade, the captain was not concerned
to examine who had the best right on
the different bills of lading. All he
had to do was to deliver the goods
upon one of the bills of lading, which
was done. The jury therefore were
directed by the Chief Justice to rtnd a
verdict for the defendant, which they
accoi'dingly did. [Accord, as to dis-
charge of the master by delivery un-
der either bill, The Tigress, Brown &
Lushington, Adm. Ca. 38; 32 L. J.
Adm. 1)7. But that Fearnn v. Bowers
cannot be supported to its full extent
in protecting a master who delivers to
one indorsee irith notice that another
part of the bill of lading is outstand-
ing with another indorsee, see Ghjn
V. East and West India Dock Co., 7
App. Ca. 591.]

(«) Assignees of BunjhaJl, a bank-
rupt, V. HovKird. At Guildhall sit-
tings after Hil. 32 G. 2, coram Lord
Mansfiehl. One Burghall at London
gave an order to Bromley at Liverpool
to send him a quantity of cheese.
Bromley accordingly shipped a ton of
cheese on board a ship there, where-
of Howard, the defendant, was mas-
ter, who signed a bill of lading to
deliver it in good condition to Burg-

LICKBARROW V. MASON. 10G9

Mansfield. The right of the consignor to stop the goods is
here considered as a legal right. It will make no difference in
the case whether the right is considered as springing from the
original property not yet transferred by delivery, or as a right
to retain the things as a pledge for the price unpaid. In all
the cases cited in the course of the argument, the right of the
consignor to stop the goods is admitted as against the con-
sio'nee. But it is contended that the rig'ht ceases as as^ainst
a person claiming under the consignee for a valuable considera-
tion, and without notice that the price is unpaid. To support
this position, it is necessary to maintain that the right of the
consignor is not a perfect legal right in the thing itself, but
that it is only founded upon a personal exception to the con-
signee, wliich would preclude his demand as contrary to good
faith, and unconscionable. If the consignor had no legal title,
the question between him and the bond fide purchaser from the
consignee would turn on very nice considerations of equity.
But a legal lien, as well as a right of property, precludes these
considerations ; and the admitted right of the consignor to stop
the goods in transitu as against the consignee, can only rest
upon his original title as owner, not divested, or upon a legal title
to hold the possession of the goods till the price is paid, as a
pledge for the price. It has been asserted in the course of the
argument, that the right of the consignor has by judicial de-
terminations been treated as a mere equitable claim in cases
between him and the consignee. To examine the force of this
assertion, it is necessary to take a review of the several de-
terminations.

The first is the case of Wright v. Campbell^ 4 Burr. 2046, on

liall in London. The ship arrived in Mansfield was of opinion tliat tlie
the Thames, bnt Burgliall liaving be- plaintiUs liad no foundation to re-
corae a bankrupt, the defeiulant was cover; and said he liad Ivuown it sev-
ordered, on behalf of Bromley, not eral times ruled in Chancer}', that
to deliver the goods, and accordingly where the consignee becomes a bank-
refused, though the freight was ten- rupt, and no part of the price had
dered. It appeai-ed by the plaintift's been paid, that it was lawful for the
witnesses that no particular ship was consignor to seize the goods before
mentioned whereby the cheese should they come to the hands of the con-
be sent, in which case the shipper signee or his assignees ; and that this
was to be at the risk of the peril of was ruled, not upon principles of
the seas. The action was on the case equity only, but the laws of property,
upon the custom of the realm against The plaintifis were nonsuited,
the defendant as carrier. Lord

1070 LlCKnAi:i:n\v v. mason.

which the chief stress is hiiil. Tlu- lirst oljflervatioii thut occurs
upon that case is, that iiothin*,' was »k'tcriniiic(l hy it. A case
was reserved by the jud^'e at NtMi Priim, on tl»e arg^unuMit of
which the Court thout^ht the facts imperfectly stated, and di-
rected a new triaL That case cannot tlierefore Ix; ur^ed as a
decision upon tlie point. Bnt it is (piotcd as L-ontainin<,' in the
report of it an opinion of Lord Munxjithl, that the rijjlit of the
consignor to stoi) the goods caniutt l)o set up against a third
person claiming under an indorsfim-nt for valui" aiul withont no-
tice. The authority <>f such an oi»inioii. though no decision had
followed upon it, would deservedly he very great, fmni the high
respect due to the experience and wisdom of so great a judge.
But I am not able to discover that his opinion was delivered
to that extent, and I assent to the opinion as it wius deliv-
ered, and very correctly applied to the case then in ipiestion.
Lord 3IansfiehJ is there speaking of the consignment of goods
to a factor to sell for the owner; antl he very truly olwerves,
1st, that as against the factor, the owner may retain the goods ;
2ndly, that a ])crson into whose hands the factor has passed the
consignment with notice, is exactly in the same situation with
the factor himself; 3rdly, that a l>ond fide purchaser from the
factor shall have a right to the delivery of the goo<ls, because
they were sold hond fi(li\ and by the owner's own authoiity. If
the owner of the goods entrust another to sell them tor him,
and to receive the price, there is no doubt but that he has
bound himself to deliver the goods to the purchaser; and that
would hold equally, if the goods had never been removed from
his warehouse. The question on the right of the consignor to
stop and retain the goods, can never occur where the factor has
acted strictly according to the order of his principal, and where,
consequently, he has bound him by his contract. There would
be no possible grcnuid for argument in the case now before the
court, if the plaintiffs in the action could maintain, that Turing
and Co. had sold to them by the intervention of Freeman, and
were therefore bound ex contractu to deliver the goods. Lord
MansfiehTs opinion upon the direct question of the right of the
consignor to stop the goods against a third party, who has ob-
tained an indorsement of the bill of lading, is quoted in favor
of the consignor, as delivered in two cases at Nisi Prius ; (a)
Savifjnac v. Cuff in 1778, and (6) Stokes v. La Riviere in 1785.
(a) Ante, p. 7-11. (?>) Ante, p/753.

LICKBAKEOW V. MASON. 1071

Observations are made on these cases, that they were gov-
erned by particular circumstances ; and undoubtedly when there
is not an accurate and agreed state of them, no great stress can
be laid on the authority. The case of (a) Caldwell v. Ball is
improperly quoted on the part of the plaintiffs in the action,
because the question there was on the priority of consignments,
and the right of the consignor did not come under consideration.
The case of (5) Hihhert v. Carter was also cited on the same
side, not having decided any question upon the consignor's
right to stop the goods, but as establishing a position that by
the indorsement of the bill of lading, the property was so com-
pletely transferred to the indorsee, that the shipper of the goods
had no longer an insurable interest in them. The bill of ladino-
in that case had been indorsed to a creditor of the shipper ; and,
undoubtedly, if the fact had been as it was at first supposed,
that the cargo had been accepted in payment of the debt, the
conclusion would have been just : for the property of the goods,
and the risk would have completely passed from the shipper to
the indorsee ; it would have amounted to a sale executed for a
consideration paid. But it is not to be inferred from that case,
that an indorsement of a bill of lading, the goods remaining at
the risk of the shipper, transfers the property so that a policy of
insurance upon them in his name would be void. The greater
part of the consignments from the West Indies^ and all countries
where the balance of trade is in favour of England, are made to
a creditor of the shipper ; but they are no discharge of the debt
by indorsement of the bill of lading ; the expense of insurance,
freight, duties, are all charged to the shipper, and the net pro-
ceeds alone can be applied to the discharge of his debt. The
case, therefore, has no application to the present question. And
from all the cases that have been collected, it does not appear
that there has ever been a decision against the leo-al rigfht of the
consignor to stop the goods in transitu, before the case now
brought before this court. When a point in law which is of
general concern in the daily business of the world is directly
decided, the event of it fixes the public attention, directs the
opinion, and regulates the practice of those who are interested.
But where no such decision has in fact occurred, it is impossible
to fix any standard of opinion upon loose reports of incidental
arguments. The rule, therefore, which the court is to lay down
(«) 1 Term Rep. B. R. 205. (b) 1 Term Rep. B. R. 745.

1072 LICKBARROW V. MASON.

in this case, will have the effect, not to disturb, Ijut to settle,
the notions of the commercial part of this country, on a point
of very great importance, as it regards the security and good
faith of their transactions. For these reasons we think the
judgment of the Court of King's Bench ought to be reversed.

The following account of the further proceedings in this case
is given hy Mr. East, in a note to his Reports, Vol. 2, p. 11>.

This case first came on upon a demurrer to evidence, on which
there was judgment for the plaintiff; tliis court holding, that
though the vendor of the goods miglit, as between himself and
the vendee, stop them in transitu to the latter, in case of his
insolvency, not having paid for them ; yet that if the vendee,
having in his possession the bill of lading indorsed in blank l:)y
the vendor, before such stopping in transitu, indorse and deliver
it to a third person for a valuable consideration and without
notice of the non-payment, the right of the vendor to stop in
transitu is thereljy divested as against such hond file holder of
the bill. This judgment was reversed upon a writ of error in
the Exchequer Chamber, where it was considered that a bill of
lading was not a negotiable instrument, the indorsement of
which passed the property proprio vigore, like the indorsement
of a bill of exchange ; though to some purposes it was assignable
by indorsement, so as to operate as a discharge to the captain
who made a delivery hond fide to the assignee. 1 H. Black. 357.
The latter judgment was in its turn reversed in the House of
Lords in T. 33 Geo. 3, and a venire facias de novo directed to be
awarded by B. R. 5 Term Rep. 367, and 2 H. Black. 211. The
ground of that reversal was, that the demurrer to evidence ap
peared to be informal on the record MS. The very elaborate
ophiion delivered by Mr. Justice Buller, upon the principal
question before the House, a copy of which he afterwards per-
mitted me to take, I shall here subjoin, as it contains the most
comprehensive view of the whole of this subject which is any-
where to be found. A venire facias de novo having been accord-
ingly awarded by B. R., a special verdict was found upon the
second trial, containing in substance the same facts as before ; (a)
with this addition, that the jury found, that hy the custom of mer-

(a) [See as to the effect of this tincling, Seioell v. Burdick, 10 App. Ca. 74.]

LICKBARROW V. MASON. 1073

chants, hills of lading for the delivery of goods to the order of the
shipper or his assigns, are, after the shipment, and before the voy-
age perfo7'med, negotiable and transferable by the shipper s indorse-
ment and delivery, or transmitting of the same to any other person ;
and that by such indorse7nent and delivery or transmission the
property in such goods is transferred to such other person. And
that by the custom of merchants, indorsements of bills of lading in
blank may be filled up by tlie person to ivhom they are so delivered
or trayismitted, u'ith words ordering the delivery of the goods to be
made to such person : and according to the practice of merchants,
the same, when filled up, have the same operation and effect as if
it had been done by the shipper. On this special verdict, the
court of B. R., understanding that the case was to be carried up
to the House of Lords, dechned entering into a discussion of it ;
merely saying, that they still retained the opinion delivered
upon the former case, and gave judgment for the plaintiffs. 5
Term liep. 683.

LICKBARROW AND ANOTHER V. MASON AND OTHERS, IN ERROR.
— DOM PEOC. 1793.

Buller, J. — Before I consider what is the law arising on this
case, I shall endeavour to ascertain what the case itself is (a).
It appears that the two bills of lading were endorsed in blank by
Turing, and sent so indorsed in the same state by Freeman to
the plaintiffs, in order that the goods might, on their arrival at
Liverpool, be taken possession of, and sold by the plaintiffs, on
Freeman's account. I shall first consider what is the effect of a
blank indorsement ; and secondly, I will examine whether the
words, " to be so sold by the plaintiffs on Freeman's account,"
make any difference in the case. As to the first, I am of
opinion that a blank indorsement has precisely the same effect
that an indorsement to deliver to the plaintiffs woukl have.
In the case of bills of exchange, the effect of a blank indorse-
ment is too universally known to be doubted ; and, therefore,
on that head I shall only mention the case of Mussel v. Lang-
staffe, Dougi. 496, where a man indorsed his name on copper-

(a) [See as to this opinion p^r hum in Sewell v. Bta-dick, 10 App. Oa.
Field, J., in Burdick v. SeiveU, 10 Q. at p. 98.]
B. D. at p. 371, and per Lord Black-

1074 LICKBAKUOW V. MASON.

plate checks, made in the form of promissory notes, Init in
blank, ^^e., without any sum, date, or time of payment : and
the court held, that the indorsement on a blank note is a letter
of credit for an ind(;tinite sum ; and the defendant was liable
for the sum afterwards inserted in the note, whatever it nii<,dit
be. In the case of bills of lading, it has been admitted at your
lordships' bar, and was so in the Court of Kin<r's lieiieli, that a
blank indorsement has the same effect as ;in indorsement tilled
up to deliver to a })artic'ular persou by name. In the case of
Snee v. Prescof, Lord Hardivicke thought that there was a dis-
tinction between a l)ill of lading indorsed in blank, and one that
was filled up; and upon that ground part of his decree was
founded. But that I conceive to be a clear mistake. And it
appears from the case of jSavii/nac v. Cujf', (of wliicli ease I
know nothing but from what has been quoted by the eouns(d,
and that case having oeeurred before the unf(»rtunate year
1780 (a), no further account can be obtained,) though Lord
Mansfield at iirst thought that tliere was a distinction between
bills of lading indorsed in blank and otherwise, yet he after-
wards abandoned that ground. In Solomons v. Ni/shch, Mich.
1788, 2 Term Rep. 674, the bill of lading was to order or as-
signs, and the indorsement in blank ; but the court lield it to
be clear that the property passed. He who delivers a bill of lad-
ing indorsed in blank to another, not only puts it in the power
of the person to whom it is delivered, ])ut gives him author-
ity to fill it up as he pleases ; and it has the same effect as if it
were filled up with an order to deliver to him. The next point
to be considered is, what difference do the words "to be sold
by the plaintiffs on Freeman's aecount " make in the present
case ? It has been argued that they prove the plaintiffs to be
factors only. But it is to be observed that these words are not
found in the bill of lading itself : aiul, therefore, they cannot alter
the nature and construction of it. I say they were not in the
bill of lading itself ; for it is expressly stated that the bill of
lading was sent by Freeman in the same state in which it was
received, and in that there is no restriction or qualification
whatever ; but it appeared by some other evidence — I suppose
by some letter of advice, that the goods were so sent, to be
sold by the plaintiffs on Freeman's account. Supposing that

(a) Lord MansfiehVs papers were in the riots of that period. Solomom
then burnt, together with his house, v. Xysseii.

LICKBARKOW V. MASON. 1075

the plaintiffs are to be considered as factors, yet if the bill of
lading, as I shall contend presently, passes the legal property
in the goods, the circumstance of the plaintiffs being liable to
render an account to Freeman for these goods afterwards, will
not put Turing in a better condition in this case ; for a factor
has not only a right to keep goods till he is paid all that he has
advanced or expended on account of the particular goods, but
also till he is paid the balance of his general account (a). The
truth of the case, as I consider it, is that Freeman transferred
the legal property of the goods to the plaintiffs, who were to
soil them, and pay themselves the 5201. advanced in bills out of
the produce, and to be accountable to Freeman for the re-
mainder, if there were any. But if the goods had not sold for
so much as 510/., Freeman would still have remained debtor
to the plaintiffs for the difference ; and so far only they were
sold on Freeman's account. But I hold that a factor who has
the legal property in goods can never have that property taken
from him, till he is paid the utmost farthing which is due to
him. Kruger v. Wilcocks, Ambl. 252.

This brings me to the two great questions in the cause, Avhicli
are undoubtedly of as much importance to trade as any ques-
tions which ever can arise. The first is, whether at law the
property of goods at sea passes by the indorsement of a bill of
lading? The second, whether the defendant, who stands in
the place of the original owner, had a right to stop the goods
in transitu? And as to the first, every authority which can
be adduced from the earliest period of time down to the present
hour, agree that at law the property does pass as absolutely and
as effectually as if the goods had been actually delivered into
the hands of the consignee (i). In 1690 it was so decided in
the case of Wiseman v. Vandeputt^ 2 Vern, 203. In 1697, the
court determined again in Evans v. Martlett that the property
passes by the bill of lading. That case is reported in 1 Lord
Raym. 271, and in 12 Mod. 156 ; and both books agree in the
points decided. Lord- Raymond states it to be, that if goods
by a bill of lading are consigned to A., A. is the owner, and
must bring the action : but if the bill be special to be delivered

(a) Ace. Houghton v. Mattheios, 3 B. (6) [See as to this Burdick v. Sewell,

& P. 488 ; Mann v. Shifner, 2 East, 529 ; 10 App. Ca. 74.] Wiseman v. Vande-

HudsonY. Grainger, 5 B. & Ad. 27; putt.
DrinJacater V. Goodwin, Cowp. 251.

1()7<; LICKBAIIKOW V. MASON.

to A., to the use of B., B. ought to bring the action : hut if the
])ill l)e general to A., and the invoice only shows that they are on
account of B. (which I take to be the present case), A. ought
always to bring the action ; for the property is in liini, and B.
has only a trust. And Holt, C. J., says the consignee of a l)ill
of lading has such a property as that he may assign it over ;
and Shower said it had been so adjudged in the Exchequer.
In 12 Mod. it is said that the court held that the invoice signi-
fied nothing; but that the consignment in a bill of hiding gives
the property, except where it is for the account of another ;
that is, where on the face of the bill it imports to be for another.
In Wright v. Camjjbell, in 1707 (4 Burr. 204(5), Lord Mansfield
said, " If the goods are bond fide sold by the factor at sea (as
they may be Avhere no other delivery can be given) it will be
good notwithstanding the stat. 21 Jac. 1. The vendee shall
hold them by virtue of the bill of sale, though no actual pos-
session be delivered ; and the owner can never dispute with the
vendee, because the goods were sold />oii<i tide, and l)y the
owner's OAvn authority." His lordshij) added (though tliat is
not stated in the printed re})ort) that tlie doctrine in Lord
Eaymond was right, that the property of goods at sea was
transferable. In Fearon v. B<>/rrrs (a), in 1753, Lord Chief
Justice Lee held that a bill of lading transferred the property,
and a right to assign that property by indorsement ; but that
the captain was discharged by a delivery under either bill. In
iStiee V. Prescot, in 1743 (1 Atk. 245), Lord Hardivicke says,
" Where a factor, hy the order of his principal, buys goods with
his own money, and makes the bill of lading absolutely in the
principal's name, to have the goods delivered to the principal,
in such case the factor cannot countermand the bill of lading ;
but it passes the property of the goods fully and irrevocably to
the principal." Then he distinguishes the case of blank in-
dorsement, in which he was clearly wrong. He admits, too,
that if upon a bill of lading between merchants residing in dif-
ferent countries, the goods be shipped and consigned to the
principal expressly in the body of the bill of lading, that vests
the property in the consignee. In Cakhvell v. Ball, in 1786,
(1 Term Rep. 205,) the court held that the indorsement of the
bill of lading was an immediate transfer of the legal interest in

(a) [Accord. The Tigress, Brown Aclm. 97. See, however, Ghjn v. E. &
& Lushington's Adm. Ca. 38; 32 L. J. W. I. Dock Co., 7 App. Ca. 591.]

LICKBARROW V. MASON. 1077

the cargo. In Hihhert v. Carter^ in 1787, (1 Term Rep. 745,)
the court held again that the indorsement and delivery of the
bill of lading to a creditor primd facie, conveyed the whole
property in the goods from the time of its delivery. The case
of Godfrey v. Fiirzo, 3 P. Wms. 185, was quoted on behalf of
the defendant. A merchant at Bilboa sent goods from thence
to B., a merchant in London, for the use of B., and drew bills
on B. for the mone}'. The goods arrived in London, which B.
received, but did not pay the money, and died insolvent. The
merchant beyond sea brought his bill against the executors of
the merchant in London, praying that the goods might be ac-
counted for to him, and insisted that he had a lien on them till
paid. Lord Chancellor says, — " When a merchant beyond sea
consigns goods to a merchant in London on account of the
latter, and draws bills on him for such goods, though the money
be not paid, yet the property of the goods vests in the mer-
chant in London, wdio is crechted for them, and consequently
they are liable to his debts. But where a merchant beyond sea
consigns goods to a factor in London, who receives them, the
factor in this case, being only a servant or agent for the mer-
chant beyond sea, can have no property in such goods, neither
will they be affected by his bankruptcy." The whole of this
case is clear law; but it makes for the plaintiffs and not the
defendants. The first point is this very case ; for the bill of
lading here is generally to the plaintiffs, and therefore on their
account ; and in such case, though the money be not paid, the
j:)roperty vests in the consignee. And this is so laid down
without regard to the question, whether the goods were re-
ceived by the consignee or not. The next point there stated
is, what is the law in the case of a pure factor, without any
demand of his own? Lord King says he would have no prop-
erty. This expression is used as between consignor and con-
signee, and obviously means no more than that, in the case put,
the consignor may reclaim the property from the consignee.
The reason given by Lord King is, because in this case the
factor is only a servant or agent for the merchant beyond sea.
I agree, if he be merely a servant or agent, that part of the
case is also good law, and the principal may retain the property.
But then it remains to be proved that a man who is in advance,
or under acceptances on account of the goods, is simply and
merely a servant or agent; for which no authority has been,

1UT8 LicKbAi:i:n\\ v. mason.

or, us 1 Ix'lit'Vi', i;iii lu' itrodiucd. Ileif tlic bills wtMe drawn
by PVeein;iii upon tin- plaiiitilTs upon tlu' s;iiiu' day, and at tlic
same time, as he sent the ;;i>ods to them ; and thi-refore this
must, by fair and neiessary intendment, l)e taken to Ixj one
entire transaetion ; ami that the bills were drawn on aeeount
of the <^n)ods, uidess the eontrary appear. — So far froni the
(contrary appearini; liere, wiien it was thought proper to allege
on this <lemurrer that the prire of the i^oods was not paid, it is
expressly so stated ; for tiie demurn-r says, that the priee of
the <^oods is now du»' t(» Tiirini,' and Son. Hut it iinds that the
other bills were afterwards paid by iIh' plaintitTs; and conse-
quently tluy iiavr |iaid lor the p)ods in question. As between
the piincij>al and mere factor, who has neither advanced nor
en^a<^ed in anylhin^^ for his principal, the principal has a rij,d>t
at all times to take Iraek his goods at will : whether they 1x5
actually in the factor's possession, or only on their passaj^e,
makes no dilTerence ; the principal may countermand his oriler:
and tlioui^h the property remain in the factor till such counter-
mand, yet from that monu-nt the property revest8 in the prin-
ci[)al, and he may maintain trorer. Hut in the present case the
plaintitTs are not that mere ai^ent or servant ; they have ad-
vanced .")1<I/., on the credit of those j^oods, which at a rising
market were worth only .").")"/. ; and they have besides, as I
conceive, the legal property in the goods under the bill of
lading. Hut it was contended at the bar, that the proi)erty
never passed out of Turing; and to prove it. Hob. 41 was
cited. In answer to this I must beg leave to say, that the
position in Llobart does not apjjly ; because there no day of
payment was given; it was a bargain for ready money, but
here a month was given for payment. And in Xoy's Maxims,
87, this is laid down : " If a man do agree for a price of wares,
he may not carry them away before he hath paid for them, if lie
have not a day expressly given to him to pay for them." Thorpe
V. Thorpe, Rep. temp. Holt, 90, and Brice v. James, Rep. temp.
Lord Mansfield, S. P. So Dy. 30 and 76. And in Shep. Touch.
222, it is laid down, that " If one sell me a horse, or anything
for money, or any other valuable consideration, and the same
thing is to be delivered to me at a day certain, and by our
agreement a day is set for the payment of the money, it is a
good bargain and sale to alter the property thereof ; and I may
have an action for the thing, and the seller for his money."

LICKBARROW V. MASON. 1079

Tlius stand the authorities on the point of legal property ; and
from hence it appears that for upwards of 100 years past it has
been the universal doctrine of Westminster Hall, that by a
bill of lading, and by the assignmejit of it, the legal property
does pass. And, as I conceive, there is no judgment, nor even
a dictum, if properly understood, which impeaches this long
string of cases. On the contrary, if any argument can be
drawn by analogy from older cases on the vesting of property,
they all tend to the same conclusion. If these cases be law,
and if the legal property be vested in the plaintiffs, that, as it
seems to me, puts a total end to the present case ; for then it
will be incumbent on the defendants to show that they have
superior equity which bears down the letter of the law ; and
which entitles them to retain the goods against the legal right
of the plaintiffs, or tliey have no case at all. I find myself
justified in saying that the legal title, if in the plaintiffs, must
decide this cause by the very words of the judgment now ap-
pealed against ; for the noble lord who pronounced that judg-
ment, emphatically observed in it, "that the plaintiffs claim
under Freeman ; but though they derive a title under him, they
do not represent him, so as to be answerable for his engage-
ments : nor are they affected by any notice of those circum-
stances which would bar the claims of him or his assignees."
This doctrine, to wliicli I fully subscribe, seems to me to be a
clear answer to any supposed lien which Turing may have
on the goods in question for the original price of them.

But the second question made in the case is, that hoAvever
the legal property be decided, the defendants, who stand in the
place of the original owner, had a right to stop the goods in
transitu^ and have a lien for the original price of them. Before
I consider the authorities applicable to this part of the case,
I will beg leave to make a few observations on the right of
stopping goods in tramsitu., and on the nature and principle of
liens. 1st, Neither of them are founded on property ; but they
necessarily suppose the property to be in some other person,
and not in him who sets up either of these rights (a). They
are qualified lights, which in given cases may be exercised over
the property of another : and it is a contradiction in terms to
say a man has a lien upon his own goods, or right to stop his

(«) See the distinction drawn by session and tliat of property, post in
Bayley, J., between the right of pos- notis.

1080 I.l('KllAi:U<)\\ V. MA.SnN.

own (^()(»(l> /// triuiKitH. It' ihu ^oods l)c his, he has -a \'\y^\\\ lo
till' possession of tht'iii whether tliey Ik* in frnnnifit, or not: ho
hiis ii ri^ht to sell «)r tlispose of tlieni ;is he pU-asfs, withont the
option of any otlier person : hut he who has a lien only on
j^ootls, has no rij^ht so to do ; he can only retain them till
the orij^inal i)riee Ik' i)ai<I : and therefore if ^'oods are sidd for
oOO/., and l)y a ehanj^e of the market, liefore they are delivered,
they beeome next day worth 1000/., tile vendor can only re-
tain tlhin till the 500/. l)e paid, unless the iKir^iin I>e abs<dntely
res(;inded hy the vendee's refnsinjT to pay the 500/. — -ndly.
Liens at law exist oidy in cases where the party entith'd to
liuiM has the possession of the j^^oods ; and if he once part with
the possession after the lien attaches, the lien is ^f>nt' (<i).
'3rdly, T/w ri</ht of xtoppin;/ In tniuMitu inj'ounileil only on fijnituftU
principlex^ which hare been adopteii in conrtn of law ; and as far
as they have l)een adoptcil, I a^^ree they will himl at law ns
well as in etjuity. So late as the year l^J'JO, this ri^'ht, <»r
privih't^e, or whali'ver it may Ix' ealletl, w.is unknown to the
law. 'I'he tirst of these propositions is self-evident, and re-
(juires no arj(um»'nt to prove it. As to the second, which
respects liens, it is known and unijuestionahle law, that if a
carrier, a farrier, a tailor, or an inn-keeper, deliver up the
jjoods, his lieu is <;oue. So also is the case of a factor as to
the particular j^'oods : hut, hy the jjeueral usai^e in trade, he
may retain for the balance of his account all t^oods in his
hands, without rt'^ard to tlu^ tinn; when or on what account he
received them. In Snee v. Preacot^ Lord Hanhvicke says tliat
which not only applies to the case of liens, but to the right of
stopping goods in transitu under circumstances similar to the
case in judgment : for he says, where goods have been nego-
tiated, and sold again, there it would be mischievous to say
that the venilor ov factor should have a lien upon the goods for
the price ; for then no dealer would know when lie purchased
goods safely. So in Lempriere v. Paxley^ (2 Term R. 485,)
the court said it would be a great inconvenience to commerce
if it were to be laid down as law, that a man could never take
up money upon the credit of goods consigned till they actually
arrived in port. There are other cases which in my judgment
apply as strongly against the right of seizing in transitu to the
extent contended for by the defendants : but before I go into
(a) See Levy v. Barnard, 8 Taunt. 149. See post, in notct.

LICKBAREOW V. MASON. 1081

them, with your lordships' permission, I will state shortly the
facts of the case of Snee v. Prescot, with a few more observa-
tions upon it. The doctrine of stopping in transitu owes its
origin to courts of equity ; and it is very material to observe
that in that case, as well as many others which have followed
it at law, the question is not, as the counsel for the defendants
would make it, whether the property vested under the bill of
lading ? for that was considered as being clear : but whether,
on the insolvency of the consignee, who had not paid for the
goods, the consignor could countermand the consignment? or,
in other words, divest the property which was vested in the
consignee? Snee and Baxter^ assignees of John Toilet, v,
Prescot and others, 1 Atk. 245. Toilet, a merchant in London^
shipped to Ragueneau and Co., his factors at Leghorn^ serges
to sell, and to buy double the value in silks ; for which the
factors were to pay half in ready money of their own, which
Toilet would repay by bills drawn on him. The silks were
bought accordingly, and shipped on board Dawson's ship,
marked T. ; Dawson signed three bills of lading, to deliver at
London to factors' consignors, or their order. The factors in-
dorsed one bill of lading in blank, and sent it to Toilet, who
filled up the same and pawned it. The bills drawn by the
factors on Toilet were not paid, and Toilet became a bankrupt.
The factors sent another bill of lading, properly indorsed, to
Prescot, who offered to pay the pawnee, but he refused to
deliver up the bill of lading ; on which Prescot got possession
of the goods from Dawson, under the last bill of lading. The
assignees of Toilet brought the bill to redeem by paying the
pawnee out of the money arising by sale, and to have the rest
of the produce paid to them : and that the factors, although
in possession of the goods, should be considered as general
creditors only, and be driven to come in under the commission.
Decreed, 1st, That the factors should be paid; 2Dd, the pawnees;
and 3rd, the surplus to the assignees. The decree was just and
right in saying that the consignor, who never had been paid
for the goods, and the pawnees, who had advanced money upon
the goods, should both be paid out of the goods before the con-
signees or his assignees should derive any benefit from them.
That was the whole of the decree ; and if the circumstance
of the consignor's interest being first provided for be thought
to have any weight, I answer, 1st, That such provision was

lOSj LU'KIJ.VUUOW V. MASON.

lomided on \vli;it is now inliiiiltrd to Ixj an iippJirent nu.'^liike
ot tlii' hiw, in snj»()osin^' that tlu'iv nv.ih a ditTfiLMue lH-t\v«*t'n a
fnll and a hlank indorsement. Lord liirdwirke considered the
k'l^'al property in that rase to remain in the eonsij^nor, and,
therefore, j^'ave him the preferenee. -ndly, Tliat whatever
nii;,d»t he the hiw, the mere fact of the lonsij^nor's liein^ in
possession was a sntlieient reason for a eourt «»f etjuity to say,
\\v will not take the possession from you till you have l)een
paid what is (hie to you for the ;,'oods. I^onl ILirdwirke ex-
pressly saiil — "This court will not say, as the factors have
re-sei/cd thi* ^'oods, thit they shall U* taken out of tln-ir hands
till payment of the iialf-pri»e whicii they have laid down upon
them. lie who tteeks equil}/ inunt do eijititt/ : and, if he will not,
he must not expect relief from a court of «M|uity. It is in vain
for a man to say in that court, I have the law with me, unless
he will show that he lias equity with him also. If he mean to
rtdy on the law of his case, he must go to a court of law; and
so a court of e(|uity will always tell him under those lircum-
stanccs." Tin* <ase of .S'/»»r v. Presrot is miscrahly reportitl
in the printed hook : and it was the misfortune of Lord /firJ-
ici(-/ct\ and of the puhlic in general, to have many of his deter-
minations puhlishcd in an incorrect and slovenly way: and,
perhaps, even he himself, hy l)eing very <liffuse, has laid a foun-
dation for douhts which otherwise would never have cxisteil.
I have (pioted that case from a MS. note taken, as I collect,
by Mr. John Cox, wlu) was counsel in the cause: and it seems
to me that, on taking the whole of the case together, it is appar-
ent that, whatever might have been said on the law of the case
in a most elaborate opinion. Lord ILtriln'icke decided on the
equity alone, arising (Uit of all the particular circumstances of
it, without meaning to settle the principles of law on which the
present case dei)ends. In one part of his judgment he says
that, in strictness of law, the property vested in Toilet at the
time of the purchase : *•• but, however that may be," says he,
"• this court will not compel the factors to deliver the goods
without being disbursed what they have laid out." He begins
by saying, " the demand is as harsh as can possibly come into a
court of equity." And in another part of his judgment he .sa3s,
" Suppose the legal property in these goods was vested in the
bankrupt, and that the assignees had recovered, yet this court
would not suffer them to take out execution for the whole

LICKBAEEOW V. MASON. 1083

value, but would oblige them to account." But further, as to
the right of seizing or stopping the goods in transitu^ I hold
that no man, who has not equity on his side can have that
right. I Avill say with confidence, that no case or authority, till
the present judgment, can be produced to show that he has.
But on the other hand, in a very able judgment delivered by
my brother Ashurst, in the case of Lempriere v. Pasley^ in 1788,
2 Term Rep. 485, he laid it down as a clear principle, that, as
between a person who has an equitable lien, and a third person
who purchases a thing for a valuable consideration and without
notice, the prior equitable lien shall not overreach the title of
the vendee. This is founded on plain and obvious reason : for
he who has bought a thing for a fair and valuable consideration,
and without notice of any right or claim by any other person,
instead of having equity against him has equity in his favour ;
and if he have law and equity both with him he cannot be beat
by a man who has equal equity only. Again, in a very solemn
opinion, delivered in this house by the learned and respectable
judge (a), who has often had the honour of delivering the sen-
timents of the judges to your lordships, when you are pleased
to require it, so lately as the 14th of May, 1790, in the case of
Kinloch v. Craig, 3 Terra Rep. 787, it was laid down that the
right of stopping goods in transitu never occur but as between
vendor and vendee ; for that he relied on the case of Wright v.
Campbell, 4 Burr. 2050. Nothing remains in order to make
that case a direct and conclusive authority for the present, but
to show that it is not the case of vendor and vendee. The
terms vendor and vendee necessarily mean the two parties to a
particular contract : those who deal together, and between
whom there is privity in the disposition of the things about
which we are talking. If A. sell a horse to B., and B. after-
wards sell him to C, and C. to D., and so on through the alpha-
bet, each man who buys the horse is at the time of buying him
a vendee ; but it would be strange to speak of A. and D.
together as vendor and vendee, for A. never sold to D., nor did
D. ever buy of A. These terms are correlatives, and never
have been applied, nor ever can be applied, in any other sense
than to the persons who bought and sold to each other. The
defendants, or Turing, in whose behalf and under whose name

(rt) Exjre, then Lord C B.

10H4 LirKMAKirMW v. masiin.

anil iuithority tlir\ li,i\r .n ittl, never snM tlu'st- j^«m.iI-. in iln-
pliiiMtin's ; the pliiiiititTs ueviT were thf veiMU'cs of fither of
them. Nfitht r do ilic i)hiinti!Ys (if I may Imj jx;nuitteil to re-
ptat a^aiii tin* fon-iMc words of the iu»hlt' jmlj^t* who j>rf>-
iiouiulmI tht- judgment iii <iiU'sti(»ii) ri'pri'st'iit Frromaii so as to
he aiiswerahle for his eiij^aj^einents, or staiul affetted by any
iiotite of those eircumstaiu'es whirli wouhl har the (hiim of
Freeman «»r his assitjnees. These reasons, which I e(»idd not
have expressed witli etpial eh-arness, without reiurriug to the
words of the two great authorities hy whom tliev were used,
and to wljonj I always Imw with reverence, in my hund)le judg-
ment put an end to all (piestions al)out the right of seizing in
fninsifii. Two other lases were mentioned at the Uir wliich
deserve some attention. One is the case of tlie assignees of
liiin/hiiU V. Howaril (^i), l)efore Lord Miiuxthhl at Giiilithall, in
175'.); wliere the only point decided l>y Lord }[itn»fitl>l was,
that if a consignee iHscome a hankrupt, and no p.irt of the juice
of the gojtds Im' pai<l, the consignor n>ay seize tlu* g«»ods K'fore
they come to the hands of the consignee or his assignees. This
was most clearly right ; hut it does not apply to the present
case ; for when he made use of the w«»rd a.ssignees, lie un-
douhtedly meant a.'^signees under a commission of bankruptcy,
like those who were then l)efore him, and not pei-sons to whom
the consignee sold the goods ; for in that case it is stated that
no part of the price of tin* goods was paid. The whole cause
turns upon this point. In that case no part of the price of the
goods was paid, and therefore the original owner might seize
the goods. But in this ease the plaintiffs had paid the price of
the goods, or were under acceptances for them, which is the
same thing ; and therefore the original owner could not seize
them again. But the note of that case says. Lord Mangfiehl
added, ''and this was ruled, not upon principles of equity oidy,
but the laws oi property." Do these words fairly import that
the property was not altered by a ])ill of lading, or by the in-
dorsement of it? That the liberty of stopping goods in transitu
is originally founded on principles of equity, and that it has, in
the case before him, been adopted by the law, and that it does
att'ect property are all true : and that is all that the words mean ;
not that the property did not pass by the bill of lading. The

(a) 1 II. Bla. ;'.<;.-.. n.

LICKBARROW V. MASON. 1085

commercial law of this country was never better understood,
or more correctly administered, than by that great man. It
was under his fostering hand that the trade and the commer-
cial law of this country grew to its present amazing size : and
when we find him in other instances adopting the language and
opinion of Lord Chief Justice Holt, and saying, that since the
cases before him it had always been held, that the delivery of a
bill of lading transferred the property at law, and in the year
176T deciding that very point, it does seem to me to be abso-
lutely impossible to make a doubt of what was his opinion and
meaning. All his determinations on the subject are uniform.
Even the case of Savignac v. Cuff («), of which we have no ac-
count besides the loose and inaccurate note produced at the
bar, as I understand it, goes upon the same principle. The
note states that the counsel for the plaintiff relied on the prop-
erty passing by the bill of lading ; to which Lord Mansfield
answered, the plaintiff had lost his lien, he standing in the
place of the consignee. Lord Mansfield did not answer mer-
cantile questions so ; which, as stated, was no answer to the
question made. But I think enough appears on that case to
show the grounds of the decision, to make it consistent with
the case of Wright v. Campbell, and to prove it a material
authority for the plaintiffs in this case. I collect from it tliat
the plaintiff had notice by the letter of advice, that Lingham
had not paid for the goods ; and if so, then, according to the
case of Wright v. Gamphell, he could only stand in Lingham's
place. But the necessity of recurring to the question of notice
strongly proves, that, if there had been no such notice, the
plaintiff, who was the assignee of Lingham the consignee,
would not have stood m Lingham's place, and the consignor
could not have seized the goods in transitu : but that, having
seized them, the plaintiff would have been entitled to recover
the full value of them for him. This way of considering it
makes that case a direct autliority in point for the plaintiffs.
There is another circumstance in that case material for con-
sideration ; because it shows how far only the right of seizing
in trafisitu extends, as between the consignor and consignee.
The plaintiff in that action was considered as the consignee ;
the defendant, the consignor, had not received the full value
for his goods ; but the consignee had paid 150?., on account of
(a) Cited in 2 Term Rep. 66.

1()H6 i,i< kuai:i:<»\v v. mason.

tht'iM. I |M)ii thr insolveiuv of tliu t<»nsipiiue, tlu* t-onsijjnor
Heizetl the ^onds in trunxitit ; hut tluit \v;is lioldcii not to be
justiliiiblc, iititi thfirftuv tlit'iu was a vrnlict against him.
'I'liiit was ail art ion of trovtr, wliiili cjouhl not liavi* \tccn siis-
taiiu'<l l>ut on tlu' ^Moimd tliat the propt'ity was vrst«'il in tht;
coiisi^nrc, antl cnultl nut Iw sri/rd in fninxiftt as against him.
If tht! U't^al j)ro[)rity ha<l n-niaimtl in tlu' ronsiirnnr, what
ohjcction rouhl Ih' statrd in a court of law to the consig'nor's
taking his own j^oods ? Hut it was hi)ldrn that he I'oidd not
Hfi/e tlitf ^'ouds ; which couhl only Im* on the <;round eontendud
for hy Mr. Walhue, the counsel for the plaintiff, that the projK
erty was in the consignee : hut though the property were in
the consit^nee, yet, as I stated to your lortlships in the outiiet, if
the consi<^iior had paid to the consicfnee all that he had ad-
vanced on ai'count of the j^oods, the consignor would have hail
a lii^dit lt» the possession of the goods, even tliough they liail
got into the hands of the consignt'c : and U[»on paying or
tendering that moiu-y, and deniamling the goods, the property
would have revested in him, ami he might have maintained
tnn't'r for them: hut admitting that the eonsigme had the legal
property, and was therefore entitled to a verdict, still the tjues-
tion remained what damages he should recover; and in ascer-
taining them, regard was had to the true merits of the case,
and the relative situation of each party. If the consignee had
ohtained the actual possession of the goods, he would have had
no otlu'r eipiitahle claim on them than for loO/. lit- \\;is en-
titled to no more, the defendant was liahle to pay no more ;
and therefore the verdict was given for that sum. This case
proceeded precisely upon the same principles as tlie case of
Wii<i'nian v. I'twirjuitt ; where, thouglf it was determined that
the legal property in the goods, he fore they arrived was in
the consignee, yet the Court of Chancery held that the con-
signee should not avail himself of that Ijeyond what was due to
him : but for what was due, the court directed an account ;
and if anything were due from the Italians to the Bonnells,
tliut should be paid the plaintiffs. The plaintiffs in this cause
are exactly in the situation of the plaintiffs in that case ; for
they have the legal property in the goods ; and therefore, if
anything be due to them, even in equity, that must be paid
before any person can take the goods from them ; and 520^
w^xs due to them, and has not been paid.

LICKBAKKOW V. MASON. 1087

After these authorities, taking into consideration also that
there is no case whatever in which it has been holden tliat
goods can be stopped iti transitu, after tliey have been sohi and
paid for, or money advanced upon them bond fide, and without
notice, I do not conceive tliat the case is open to any arguments
of policy or convenience ; but if it should be thought so, I beg
leave to say, that mall mercantile transactions, one great point to
he kept uniformly in view is to make the circulation and negotia-
tion of jyroperty as quick, as easy, and as certain as possible. If
this judgment stand, no man will be safe either in buying or in
lending money upon goods at sea. That species of property
will be locked up ; and many a man who could support himself
with honour and credit, if he could dispose of such property to
supply a present occasion, would receive a check which indus-
try, caution, or attention could not surmount. If the goods are
in all cases to be liable to the original owner for the price, what
is there to be bought ? There is nothing but the chance of the
market ; and that the buyer expects as his profit on purchasing
the goods, without paying an extra price for it. But Turing
has transferred the property to Freeman, in order that he
might transfer it again, and has given him credit for the value
of the goods. Freeman having transferred the goods again for
value, I am of opinion that Turing had neither property, lien,
nor a right to seize in transitu. The great advantage which
this country possesses over most, if not all other parts of the
known world, in point of foreign trade, consists in the extent
of credit given on exports, and the ready advances made on
imports : but amidst all these indulgences, the wise merchant is
not unmindful of his true interests and the security of his
capital. I will beg leave to state, in as few words as possible,
what is a very frequent occurrence in the city of Lo7ido7i : — A
cargo of goods of the value of 2000?. is consigned to a merchant
in Jjondon ; and the moment they are shipped, the merchant
abroad draws upon his correspondent here to the value of that
cargo ; and by the first post or ship he sends him advice, and
incloses the bill of lading. The bills, in most cases, arrive
before the cargo ; and then the merchant in London must
resolve what part he will take. If he accepts the bills, he
becomes absolutely and unconditionally liable ; if he refuses
them, he disgraces his correspondent, and loses his custom
directly. Yet to engage for 2000Z., without any security from

1U88 l,l('Kl!Al:Kn\V V. MASciN.

the drawer, is a hold luciisuie. Tlie goods may be lost at sea ;
Jiiul then the merchant here is left to recover his money a^iiinst
the drawer as and when he may. The (question tlien with the
merchant is, how can I secure myself at all eventij? The
answer is, I will insure; and then if the ^(jods come safe I shall
he re|»aid out of thcin ; or, if they he lost, 1 shall be repaid by
the undtrw rilcrs on the policy ; but this cannot l>e done uidess
the i)ro[)ertv vest in him by the bill of lading; for otherwise
his policy will l)e void for want of interest ('O; :i'>d an insur-
ance, in the name of the foreign nicrchant, would not answer
the purpose. This is tin- case of the merchant who is wealthy,
and has the 2000/. in his banker's hands, which he can [)art
with, and not tind any inconvenience in .so doing; hut there is
another ca.se to be considered, vi/. — Suppose the merchant
here has not got the 2000/., and cannot raise it before he ha.s
sold the gooiLs? — the same considerations arise in his mind as
in the former case, with this additional circumstance, that the
monev must be procured before the bills Ix'come due. Then
the question is, how lan that be done .' If he have the property
in the <'-oods, he can go to market with the bill of lading and
the policy, as was done in Sure v. Pr>-sri,t ; and upon that idea
he has hitherto had no dilliculty in doing so : but if he have
not the property, nobody will buy of him : and then his trade
is undone. Kut there is still a third ciuse to l)e considered; for
even the wary and opulent merchant often wi.shes to sell his
goods whilst they are at sea. I will put the case, by way of
example, that barilla is shipi)ed for a merchant here, at a time
when there has been a dearth of that commodity, and it pro-
duces a protit of 25/. per rent., whereas, ui)on an average, it
does not produce above 12/. The merchant ha.s advices that
there is a great quantity of that article in Spain, intended for
the British market ; and when that arrives, the market will be
glutted, and the commodity much reduced in value. He wishes,
therefore, to sell it immediately whilst it is at sea, and before it
arrives ; and the protit which he gets by that is fair and hon-
ourable : but he cannot do it if he have not the property by the
bill of lading. Besides, a quick circulation is the life and soul
of trade ; and if the merchant cannot sell with safety to the
buyer, that must necessarily be retarded. From the little expe-

(a) St. 19 G. 3, c. 37, s. 1.

LICKBAKROW Y. MASON. 1089

rience which I acquired on this subject at G-uildJiall, I am con-
fident that if the goods in question be retained from the plain-
tiff without repaying him what he had advanced on the credit
of thenv it will be mischievous to the trade and commerce of
this country; and it seems to me that not only commercial
interest, but plain justice and public policy, forbid it. To sum
up the whole in very few words : the legal property was in the
plaintiff ; the right of seizing in transitu is founded on equity.
No case in equity has ever suffered a man to seize goods in
opposition to one who has obtained a legal title, and has
advanced money upon them; but Lord Hardtvickes opinion
was clearly against it; and the law, where it adopts the
reasoning and principles of a court of equity, never has and
never ought to exceed the bounds of equity itself. I offer to
your lordships, as my humble opinion, that the evidence given
by the plaintiff, and confessed by the demurrer, is sufficient in
law to maintain the action.

Ashurst and Grose, Justices, also delivered their opinions
for reversing the judgment of the Exchequer Chamber.

Up^e, C. J., Gould, J., Heath, J., Hotham, B., Perryn, B., and
Thomson, B., contra.

This case stood over from time to time in the House : and
was postponed, in order to consider a question which arose in
another case of Gibson v. Minet, upon the nature and effect of
a demurrer to evidence, which was thought to apply also to the
present case ; and, finally, the House reversed the judgment of
the Exchequer Chamber, which had been given for the defend-
ant ; and ordered the King's Bench to award a venire de novo
(upon the ground that the demurrer to evidence appeared to
be informal upon the record) and. that the record be remitted.

Tms celebrated case involves two important propositions. The former is,
that the unpaid vendor may, in case of the vendee's insolvency, stop the goods
sold in transitu. The latter, that the rirjht to stop in transitu may be defeated
by negotiating the bill of lading loith a bona fide indorsee.

The right of a vendor to stop in transitu is bestowed upon him in order to
prevent the injustice which would take place, if, in consequence of the
vendee's insolvency, while the price of the goods was yet unpaid, they were
to be seized upon in satisfaction of his liabilities, and so the property of one
man were to be disposed of in payment of the debts of another. The doctrine
was first introduced in Equity by the cases of Wiseman v. Vandeputt, 2 Vern.

10!i(» Li('KnAi:i:M\v v. mason.

20;5; Snee v. Prfurot, \ \ik .Mi., an. I It Anuil't v. l.itint.Tt, '.' K<liTi. 7' ; Aliib.
8y. It lias .sliK'c ht'i'ii rfpruti'«lly tllsfu.ssi'tl in fourts of c-oiiunoti luw ; niitl
It uppc'urs strariyi' that tlioimli /»<«;</)«iy»' in tninnitu lia.H tM-cn for many yoars
«)(ii- of the nio>t practU-ally Iniportunl liranciu's of i-oiiiiiii>ri-ial luw, yet It.s
pri'clsi' L'flVct upon till- coiitnu-t of salr has nt'vrr a> yrt Ihtii ax-tTtaiut-d.

A liiiflily intt-rcstlnt; ilisi|ulsitlon upon it.s hlittory and cliaractt-r will Im.>
foiiiui In Lord Atnmjrr'a Jiid<;nit'nt In (iibaon v. i.'urruthert, 8 M. & VV. :i36.

Tin* ipii'stion wlu'lhrr rtujipaije in trnnnitti ri'.scln«ls the rontnirt of h«1c
altoyt-tluT, or otdy puts tin- vendor in possossion of a lii-n on the ({(mhLh
dcfcasiltlt' on payment of tli<* price ai;rc)-d on, has often iM-en matter of
controversy, parti<-niarly in ('lii'j v. Jlnrrii^Dn, Id II. i f. !V», and was Hnld
in Slfpftiits V. W'ilkiitxoii, '.\ B. &. .\tl. 'ST.i, U> he still undetennined. See al.so
Wilmhurst v. li<>,rk,r, '» Hlui;. N. ('. '147; In error, « Scott, N. U. :.7o ; [7 M. &
Cf. WH-'. S. ('. ;] (iihsnn V. (arnit/urs, s M. Jt W. ;»'-M ; M't-ntteurth v. Onlhtemte,
10 .M. & W. 4.11 ; and Kiltmnln v. lirncr, 2 M. v<. W. .175.

Lonl h'l iiijnn in llitifijunn v. Loy, 7 T. H. 445, wa.s (»f opinion that It wa.s not
a rescission oi' the sale, but was (to use his lordship's own words) "an
e(|uitnl)ic lien adoptetl l>y the law for the purpo.se of snl>stantinl Justice,"
wlieme it was held to follow tliat part payment of the pri«e by the vendee
would not destroy the rli;ht to stop in tninnilii, hut only dhnlnlsh the lien
pro t<tnti>.

Confusion has sometimes arisen on this subject, from its l»elnj; iLssiimed
that a vendor's riirlit over the ;roods in respect of his price is sniiject to the
same rules as an ordinary lim which cannot exist without both the rlf;hl ami
the fact of p<issession, ami is lost and cannot be resume<l If Uie party claim-
in;; It al»andon either the possession, or the rlirht to possess the thlnu over
which it is claimed : whereas " the vendor's riyht in respect of his price,"
says Hniihu, ,]., deliverini; jU4l;;meiit In lilnxmn v. Sumltrs, 4 B. & ('. 'JiH, " \n
not a niiTc lien wldch he will forfi-it if he parts with the possession, but
;;ri)ws out of his orluiiial ownership and «li>miiiion. If yoods are sold on
credit, and nothlrji: is ayretMl on as to the time of delivering the ;joods, the
vendee is imim-diately entitletl to the |>ossession : and tin- rii;lit of possession,
and the riylit of property, vest at once In him; hut his ri;jht of possession is
not al)solute, It is lial)le it be defeated if he becomes insolvent before he
obtains possession, Timkr v. IlitlUuijirurth, 5 T. U. 215. If the seller has
dispatched the <»oods to the buyer, anil In.solvency occur, he ha.s a ri^ht
in virtue of his t>rii;inal ownership to stop th»'m in transitu. Mason v. Lirk-
barruic, 1 II. Bl. ;?57 ; Kllis v. Hunt, 3 T. U. 4i;4 ; lIo,l.j>ton v. Lnij, 7 T. U. 440;
/;i(//('.s- v. Ushtrmioil, 1 East, 515; liothUn<jk v. Infjlis, 3 East. :W1. Why?
Because the proprrtij is vested in tlie buyer, so as to subject him to the risk
of any accident, but he has not an indefeasible riiiht to the posspssion , and
his insolvency without payment of the price defeats that ri^ht. The buyer,
or those who stand in his place, may still obtain the rijiht of posses.sion, if
they will pay or tender the price, or they may still act on their right of prop-
erty rf any thins: unwarrantable is done to that right. If, for instance, the
original vendor sell when he ought not. they may bring a special action
against him for the damage they sustain by such wrongful sale, and recover
damages to the extent of tliat injur}-; Ijut they can maintain no action in
which the right of property and right of possession are both rei|uisite. unless
they have both those rights. Gordon v. ITarprr. 7 T. R. 0."

This luminous view of the principles upon which an unpaid vendor's right
depends is, as will have been soen, totally inconsistent with the idea that

LICKBAlinOW V. MASON. 1001

stoppage in transitu operates as a rescission of tlie contract of sale, and
deserves tlie more attention because it is contained in the written judgment
of the court delivered after a curia advisari vult ; see, too, Edvmrds v. Brewer,
2 M. & W. 875; Martindale v. Smith, 1 G. & D. 1, 1 Q. B. 397, S. C. ; [the
opinion of BnUer, J., in the text, p. 781, and the judgment of Williams, J.,
in Johnston v. Stear, 15 C. B. N. S. 330, 339.J

In Wentuiorth v. Outhwaite, 10 M. & W. 451, Parke, B., in delivering the
judgment of the Court of Exchequer, stated that the question discussed
above, " what the effect of stoppage in transitu is, whether entirelj' to rescind
the contract, or only to replace the vendor in the same position as if he had
not parted with the possession, and entitle him to hold the goods until the
price l)e paid down, is a point not j^et finally decided," and that "there are
difiiculties attending each construction." In that case one of several parcels
of goods sold under an entire contract had reached the place of destination ;
and upon the stoppage of the rest in transitu, the vendor insisted that the
effect was to rescind the contract of sale altogether, and consequently to
revest in him the property in the part which had reached the place of destina-
tion. The barons of the Exchequer decided against that argument, but for
different reasons ; the majority of the court, Parke, Alderson, and Rolfe, BB.,
being strongly inclined to think, that upon the weight of authority a stoppage
in transitu must be considered, not as a rescission of the contract, but as
merely replacing the vendor in the same position as if he had not parted with
the possession ; from which it followed that the vendor's right of lien on the
part stopped Avas revested ; and no more ; whilst Lord Abinyer expressed an
opinion, to which on consideration he adhered, that the effect of stoppage
in transitu is to rescind the contract ; but he did not think that that affected
the right of the vendee in the case before the court, to retain the portion of
the goods which had been actually delivered to him ; or, in other words, had
reached the place of their destination ; more especially when the goods and
the price might be apportioned and a new contract be implied from the
actual deliverj' and retention of a part.

The arguments in Wentioorth v. Outhwaite contain the authorities on either
side of the question, to which may be added, that in the latter case of Jen-
kyns v. Usborne, 8 Scott, N. R. 522, 816, Tindal, C. J., in delivering a consid-
ered judgment of the Court of Common Pleas, spoke of stoppage in transitu
as a right to rescind the contract ; but the nature of the right was not there
in question.

It is conceived (notwithstanding the weight of Lord Abinger's opinion on a
subject in which his practised and sagacious mind was eminently calculated
to arrive at a correct conclusion) that the pi'cponderance of reason and au-
thority is in favour of the opinion expressed by the majority of the court in
Wentworth v. OutMvaite. [And it would seem to be in accordance with this
view that the right of stoppage has been held to be a proper subject of a bill
in equity. See Scotsman v. Lancashire and Yorkshire Railway Co., per Lord
Cairns, L. R. 2 Ch. 332, 36 L. J. Ch. 361. In Kemp v. Falk, 7 App. Ca., at p.
581, Lord Blackburn says : "It is pretty well settled now that a stoppage in
transitu would not rescind the contract."

The right of stoppage is not only to countermand delivery to the vendee,
but to order delivery to the vendor, and the master on receiving such order is
bound to deliver to the latter as soon as he knows that the order was given
by him. Tlie Tigress, Brown & Lush., Adm. Ca. 38 ; 42 L. J. Adm. 97.]

Supposing the contract of sale not to be rescinded, it seems to follow, that

I<>;t2 LIC'KHAl:l:n\V \. MASON.

tin* {jootis, wliili- (Iftaiiud, nniain at the rl«.k kI' tlu' vriidt'o, niul tliat the ven-
dor can \in\v no rinht to rrsdl tlu-iii, at all rvriits until tin- prrioil of rrt'illt In
expired; after tliat period, iiule«-d, the refusal of tin- vt-uilee or Inn rrpresen-
tatives to receive the ;;oods uinl pay tlie price, woultl probably be held to entitle
the vendor to elect to rescinti the contract. See Luini/niil v. J'il»> , Salk. li;i.

Hut what, it will be said, if the <;oods be of so perishable a nature that the
vendor cannot keep them till the tin>e of credit has expired? In such a case
It is submitted tliat courts of law havini; ori:;inally adopted this doctrine of
stuppitijf in transitu from e(|uity, wouUi act on ei|uital)le principles by holding;
the ventlor invested with an implied authority to make tiie nei-essary sale.

[For the rijL^ht of an unpaid vendor sonn-what analogous to tliat of stop-
pafje in transitu, see Hx pmtf ('lutlmirn, L. H H Ch. I's'.i, H I,. J. V\\. 'M , where
it was lieUl that " wln-n a purchaser l)ecomes ins(»lveiit before the contract
for sale lias been c<»mplelely performed, the seller, iiotw ithstaiulin;; he may
have aj;reed to allow credit for the ijooils, is not bonml t<» deliver any more
poods under tin- contract until the price of the uo<hIs not yet delivered ih
tendered to him; aiitl that, if a debt is due to him for ;roo«|s already «le-
livereii, he is entitled to refuse to deliver any more till he is paiti the debt due
for tlios*' already delivered, as well as the price of those still to be delivered."
It has been hehl by the .ludicial Conimittee of the I'rivy Council that the
above riu'ht is not destroyetl, thou;;h the vendor retain tlie i;oods as ware-
houseman for the vendee, dricf v. lUrhnnhitn, W App. ('as. :Ut>; 4" L. J. I*.
(". JH. It exists ind«-pendently «)f the <|Uestion whether there has not been an
actual rescission of the contract, for it must not be overlooked that ntrrt in-
solvency i)y Itself does not operate to dissolve the contract. Insolvency,
however, coupled with otlier facts, is evidence of the vendee's intention not
to stand by the contract, upon which the vendor may act, so that by the con-
sent of both jiarlies the contract may be rescinded. Munjitn v. Itnin, L. K. 10
C. r. 15; 44 L. J. C. 1'. 47; (innn v. linlrkmc, L. U. 10 Ch. 4'.»1 ; 44 L. J. Ch.
73.}; In >v I'hanij- Co., 4 Ch. 1). 10,S; 44 L. J. Ch. i\M; Impfrial Hank v. Lon-
don and St. Kathrrinr-.^ Dock Co., 5 Ch. D. 19.>; 4(1 L. J. Ch. 33'..]

It is hardly necessary to add. that a wroiiirful stoppa;;e in transitu lias not
the ellect of rescindinj; the contract of sale, or of atlectin^ the vendor's right
to sue for the price, acquired before the stoppage. In re Ilumhertson, 1 De
Gex, 2r>2; and see Gillard v. Brittan, 8 M. & W. 'yir>.

[Tlie acceptance of a bill for the price of the goods by the vendee does not
take away his right to stop, unless the bill is taken in painmnt whether paid
or not. Feise v. U'raij, 3 East, !»3; Edirards v. lirctrer, 2 M. & W. 37.'>.]

Tlie person who stops in transitu must be a consignor [or vendor]. A
mere surety for the price of tiie goods has no right to do so. Siffkin v. Wray,
(j East, 371. [Tliougli perhaps where the surety has paid the vendor, he may
obtain the right to stop in his name under the Mercantile Law Aniendineut
Act, 19 & 20 Vict. c. 97, s. 5. See Imperial Bank v. London and St. Katherine'3
Dock Co., 5 Ch. D. 195 ; 4G L. J. Ch. 335.] But a person residing abroad, who
purchases goods for a correspondent in England, whom he charges with a
commission on the price, but whose name is unknown to those from whom
he makes the purchases, may stop the goods in transitu if his correspondent
fail while they are on their passage, for the [purchaser] abroad [may] be
considered as a uew vendor, selling the jroods over again to the merchant in
England, and only adding to the price the amount of his commission. Feise
V. Wraij, 3 East, 93; see [Falkp v. Fletchor, 18 C. B. N. S. 403; 34 L. J. C. P.
14G: iuid] Xeii:soin v. Thornton, G East, 17. where a person who had consigned

LICKBAREOW V. MASON. 1093

goods to be sold on the joint account of himself and the consignee, was held
entitled to stop them in transitu, the consignee becoming insolvent. [So
a person who buys goods for another on his own credit and takes bills of
lading indorsed for delivery to his own order, and then indorses the bills to
the party for whom he bought, is a vendor for the purpose of stoppage in
transitu : The Tigress, Brown & Lush. Adm. Ca. 38 ; 32 L. J. Adm. 97 ; and
where a vendee's broker, being liable by custom for the price of goods, paid
the vendor, it was held that " having regard to the terms of the Mercantile
Law Amendment Act, (19 & 20 Vict. c. 97, s. 5,) and to the justice of the case,
the lien of the unpaid vendors was a security which subsisted for the benefit
of the broker who paid the money, and therefore he could in their name have
stopped the goods : " Imperial Bank v. London and St. Katherine' s Dock Co.,
5 Ch. I). 195; 46 L. J. Ch. 335. In Hathesing v. Laing, L. R. 17 Eq. 92; 43
L. J. Ch. 233, Bacon, V.-C, would seem to have held that a broker who had
paid the price of goods for his principal the vendee, and had shipped them in
the vendee's name, was not in the position of a vendor, so as to stop in tran-
situ ; but the case was decided also on other grounds, and as regards this
point is perhaps hardly reconcileable in principle with those last cited.]

In Jenkijns v. Usborne, 8 Scott, N. R. 522; 7 M. & G. 678, S. C, it was
attempted, but without success, to confine the right to vendors in whom the
property in the goods has actually vested at the time of the stoppage, and to
exclude from it a vendor in whom the property in the goods had not vested
at the time of the stoppage, but only an interest in and right to receive a
certain portion of a cargo to be aftenvards ascertained and appropriated to
the parties interested in it, of whom he was one. Tindal, C. J., in giving
judgment said : " We see no sound distinction, with reference to the right of
stoppage in transitu, between the sale of goods the property of which is in
the vendor, and the sale of an interest which he has in a contract for the
delivery of goods to him ; if he may rescind the contract in one case, for the
insolvency of the purchaser, he must, by parity of reasoning, have the right
to rescind it in the other." As to what is a sufficient authority from the
vendor to enable another person on his behalf to stop goods in transitu, see
Whitehead v. Anderson, 9 M. & W. 518; [Keinj) v. Falk, 7 App. Ca. 585.]

Stoppage in transitti, as its name imports, can only take place while the
goods are on their way; if they once arrive at the termination of their jour-
ney, and come into the actual or constructive possession of the consignee,
there is an end of the vendor's right over them. And, therefore, in most of
the cases the dispute has been whether the goods had or had not arrived at
the termination of their journey. The rule to be collected from all the cases
is, that they are in transitu so long as they are in the hands of the carrier as
such, whether he was or was not appointed by the consignee, [Ex parte Rose-
vear China Clay Co., per Brett, L. J., 11 Ch. D., at p. 570,] and also so long as
they remain in any place of deposit connected with their transmission. But
that, if, after their arrival at their place of destination, they be warehoused
with the carrier, whose store the vendee uses as his own, or even if they be
warehoused Avith the vendor himself, and rent be paid to him for them, that
puts an end to the right to stop in transitu. See Nicholls v. Lefevre, 2 Bing.
N. C. 83; James v. Griffin, 1 M. & W. 20; Edwards v. Breioer, 2 M. & W. 375;
INicholson v. Boicer, 1 E. & E. 172, per Lord Campbell, C. J. ;] and James v.
Griffin, iterum, 2 M. & W. 623, (where the court differed on the question
whether evidence of the vendee's intention not to take possession uncom-
municated to the wharfinger was admissible,) Mills v. Ball, 2 B. &P. 457;

1094 LiCKnAiuiow V. mason.

Iludyton v. L<>y, 7 T. 11. 410; Smith v. (ii>»», 1 Ctimp. 282; Conta v. Rttiltun, 6
B. & C. 422; [lis to wliich casi-, however, see Kemiil v. Mamhall, II Q. B. I).,
at p. 3G0, ptr Hntt. L.J. ;] ItirhnnlMnn v. ^r'oit.-*, 3 H. & I*. 127; >'<<»« v. Petit, i
B. i P. 4t;i»; Fo»lfr v. Frinnptnn. (i B. & C. HW; /I'ojr*- v. Pirkford ; [H Tniiiit.
83;] Uurrij v. Mnnylea, 1 Camp. 452; Stm-fld v. Ilni/hfa, 13 Ku.st. 40M ;
[Ileinekftj v. A'/jW*?, 8 K. & B. 410, atltnnetl lii error, /'»i«/., 427; AV p'lrtf Cat-
ling, 29 L. T. X. S. 431 ; Ihdtun v. Lnnc. & Y. Uuil. Co., L. K. 1 C, 1'. 431 ; 35
L. J. C. r. 137 ; Rmhjer v. TAe Comptnir trEsi-ninpte de Pari», L. K. 2 1*. C. C.
398; Ex parte Watson, In Tf Love, 5 Ch. 1). 3.j ; 4«; L. J. Bank. 71 ; Mt-rrhant
Bankiuij Co. v. Phwnix lifaanner Steel Co., .1 Ch. I). 2(t.j, 4C L. J. Ch. 419; and
see Conprr v. mil, 3 11. & C. 722; 34 L. J. Exeh. HU.]

The arrival of the ^^ood.s at a place where they are to he at the onlers of
the buyer, in tlic liaiuh of persons who are to keep tiieni for him, is an end of
tile trau^itus, altiiou;;li tlie place l)e not tliat uf tlieir \ittimate destination,
Winticorth v. Oiitltiraite, 10 M. & W. 43(5; Dodaon v. Wtntieorth, 5 Scott, X. K.
821 ; 4 M. & Or. 1080, S. C. ; [see Cuanrk v. lioldnnon, 1 B. & S. 299; .30 L. J.
Q. B. 2G1 ;] beeau.se In such a case the jjocmIh have not Into the hands of a;;entH
for the buyer, not concerned merely in the carriaije of tlie goods. .\ntl the
8ame, as it seems, wliere tlie ;jo(kIs iiave j;"t '"t"* ll>^' hands of a person em-
ployed l)y the buyer to receive them from the tir>t carrier or out of the ware-
liouse wliere tiny wero when solil. and «ive them a new destination, as In
Valpij v. (iili.sDit, [4 C. B. 837,] where the f;oo«ls had been ordered for the
Valparaiso market, and the Court of Common IMeas expressed their opinion
that tlic transit was at an end upon the arrival of the j;o<kIs In the hands of
the vendee's shi|)pini; ayent at Liverpool. [.Sec also Kx parte (rihhg. In re
Whitworth, 1 Ch. I). 101 ; 45 L. J. Bank. 10.

Secun where the goods are only arriveil in a vessel at a port for orders,
though the vendee is to give the orders for the ultimate destination. Fr<i.srr v.
117//, L. It. 7 K<|. 04. and also where the goods were delivereii at the i)ort of
destination to a wareliouseman not named l)y the consignee, l)ut who consid-
ered liimself to l)e acting as agent for tlie consignee. Ex parte liurnnr, t) Ch.
1). 7.^3; 4»J L. J. Bank. 71 ; and see Ex parte Watson, 5 Ch. I). .3.'.; 4(5 L. J.
Bank. 97, where goods were forwarile<l by the vendor from Yorkshire to
London, to be there shipped for Shanghai by the vendee, on the terms of a
special arrangement between the venilor and vendee, whereby inter alia, the
former was to have a lien on the liill of lading and shipment. It was held
that the trausittis continued from Yorkshire to Shanghai.

On the otlier hand, where the purchaser, Loeftler, of goods at Bolton
directed the vendor Kendal to send the goods to (larston, and at the same
time instructed his agents Marshall. Stevens & Co. at Garston, to forward
them to Rouen, it was held tliat tlie transit ceased when the goods reached
Garston and wore lying there in the warehouses of the railway company who
had given Marshall, Stevens & Co. the usual notice that tlie goods had
arrived, and that if delivery were not taken in due course the company would
hold tliera as warehousemen and would charge rent; Kendal v. Marshall, 11
Q. B. D. 35G; 52 L. J. Q. B. 313. Ex parte Miles, 15 Q. B. D. 39, is a some-
what similar case, in which the transit was held as a matter of fact to be
over on the arrival of the goods at a place short of their final destination.]

In Coicasjee v. Thoinjison, 5 Moo. P. C. 105, the goods were purchased in
London " free on board," to be paid for upon delivery on board, in a bill at
six months, or cash less two and a half per cent, discount, at the seller's
option. The goods were delivered by the seller into a vessel indicated by

LICKBARROW V. MASON. 1095

the purchaser, and a receipt for them was obtained from tlie mate, which the
seller kept. The seller elected to be paid by bill, which was accordingly
given, and the master, unthout requiring the. return of the mate's receipt, signed
bills of lading for the goods as shipped by the purchaser. By the custom of
the port, the phrase " free on board" imports that the buyer is considered as
the shipper, though the seller is to bear the expense of shipment. The Judi-
cial Committee held that the transit was at an end, and the right to stop gone,
so soon as the goods were put on board, and the bill given for the price.
Qucere. [See Ex parte Rosevear China Clay Co., 11 Ch. D. 560.J

See also Van Casteel v. Booker, 2 Exch. 691, [A'ey v. Cotesvjorth, 1 Ex. 595;
Browne v. Hare, 3 H. & N. 484, affirmed in error, 4 H. & N. 822; 29 L. J.
Exch. 6; Schuster v. M'Kellar, 7 ^. & B. 705; Green v. Sichel, 7 C. B. N. S.
747; Moakes v. Nicholson, 19 C. B. N. S. 290, 34 L. J. C. P. 273; Shepherd v.
Harrison, L. R. 5 H. L. 116, 40 L. J. Q. B. 148,] as to how far the intention
with which the goods were shipped may aflect the question, and when and
how far in this sort of case it is one of fact for the jury even though the
documents are not express upon the point. [For a case where the facts were
in a court of equity, held to negative a transit, the ship belonging to the
buj^er, see Schotsmans v. L. & Y. Rail. Co., L. R. 2 Ch. 332, 36 L. J. Ch. 361.
For the reverse case, where the ship was only chartered by the buyer, Berntd-
son V. Strang, L. R. 4 Eq. 481, 3 Ch. 588, 37 L. J. Ch. 665 ; Ex parte Rosevear
China Clay Co., 11 Ch. D. 560.]

Whilst, however, goods sold remain in the hands of a carrier employed to
convey them to their original destination as between the buyer and seller, no
case of constructive possession in the buyer arises, unless " where the carrier
enters expressly or by implication into a new agreement distinct from the
original contract for carriage, to hold the goods for the consignee as his
agent, not for the purpose of expediting them to the place of original destina-
tion pursuant to that contract, but in a new character for the purpose of
custody on his account, and subject to some new or further order to be given
to him." Whitehead v. Anderson, 9 M. & W. 518. [Ex parte Cooper, 11 Ch. D.
77, per James, L. J.] And in the absence of such a new agreement, it seems
that the mere acts of marking or sampling the goods, or giving notice to the
carrier to hold the goods for the buyer, though done with the intention to
take possession, do not establish a constructive possession in the buyer, or
affect the right to stop in transitu, Ibid.; [Coventry v. Gladstone, L. R. 6 Eq.
44, 37 L. J. Ch. 492,] and see Dixon v. Yates, 5 B. & Ad. 313. [In the case
of Ex parte Goldiug, Davis & Co., Limited, 13 Ch. D. 628, it was held that the
signature by the ship-master of the bill of lading made out in the name of a
sub-purchaser did not terminate the transitus indicated by the original pur-
chaser.]

The same law holds in the case of goods which, when sold, are on a wharf
or in a dock, where they are intended to remain until taken away by the
buyer. In such a case the goods are considered as constructively in transitu
(see the remarks of Lord Abinger in Gibson v. Carruthers, 8 M. & W. 341),
and the right of the vendor to stop in transitu remains so long as the goods
are not taken away, and the warehouse keeper or dock owner has not become
the agent of the buyer, see Dixon v. Yates, 5 B. & Ad. 313 ; Tanner v. Scovell,
14 M. & W. 28, where the wharfinger, upon orders received direct from the
seller, to weigh and deliver the goods to the buyer, had accordingly furnished
the seller with the weights and delivered a portion of the goods to the buyer's
order; yet, inasmuch as the wharfinger had not received warehouse rent

1090 LICKHAUUOW V. MAS«jN.

from the hnyer, or trnnsfi-m-d the kooiN Into liis name, or done any other
act to becoiuf hiH uycnl, lla- rest of the nooils, without rf^ard to whi-lhrr the
propiTti/ hi tlienj hiid vested hi thf luiyer or not, wen* eoiisUU-retl subject to
the selk-r's rifjlit of stopphi^ in tranidtu ; and l.iukimitnn v. .\thtrt>>n, H Scott,
N. It. .W; 7 M. & Gr. :W0, S. C, where the weller, wlio luul himself bought
the fjoods of the Importer, In whose name they were warehoused in the Wi-.st
India Docks, jiiwc the buyer a delivery order upon which the dock coni[iaiiy
refused to act, because not trlven l)y the iniporter; and upon the »ubse<|fieni-
Insolvency of the buyer, tiie seller liiniself olituined a delivery order froi;)
the importer and possessed himself of the i^fiods ; [ami see Iinftfrinl Bunk v.
London d- St. K. Dork Co., .". ("Ii. 1). r.).>, 4t; L. .1. Ch. X\o].

The (niestion in all such eases seems to be, whether the warehouseman at
the time of the stoppaj^e lield tlie gotKls (J.h ui/tnt/or thf f<>/i«j;/H«r, or an mj* nt
fur the consignee.

As to the effect of a delivery order l)oth with respect to stoppiure in transitu
and otherwise, see Ilarman v. Aml»'rtinn,2 Camp. 24:t; Stonardv. iJitnkin,
Ibid. :H4; Drnt'ill v. Hum, 3 B. & V. 42:5; [Farina v. I/omr, U\ M. & \V. Hi);]
Searlf v. Kftces, 2 Ksp. 51)H (f/M/pr*') ; Akrnnan v. Ilinnithroj, 1 C & IV h'.\;
Turkcr V. Huston, 2 C. & P. H« ; Siranwirk v. Sothiron. y A. A. & K. Hl).'> ; Mil-
linij V. Kdshair, 1 C. & .1. Ih4 ; M'Eiran v. Smith, 2 II. of Lords, 'Mo; [/>ixon
V. liorill. ;i Macq. II. of L. 1 ; (loiltit v. Hose, 17 C. H. 229; Pi-arson v. Dairson,
E. n. v^ K. 44H; Kiiiijs/onl Y. Mernj, 1 H. & N. oO;!; C'„ventr>j v. tilailMone. L.
K. r. K(|. 44, :17 L. J. Ch. 45>2 ; Ynunn v. Lambert, \.. U. 3 P. C. 142, .TJ L. .1. 1'.

C. 21 ; Imperial Hank v. London iC A'/. A'. Dork Co., 5 Ch. I). r.>5 ; 4t> L. J. Ch.
835; Merchant Banking Co. v. Phoenix Co., 5 Ch. I). 20.>, 40 L. J. Ch. 418; 40
& 41 Vict. c. 3U, s. 5].

If the vendor allow the vendee to take possession of p!irt of the ijood.H
sold under an entire contract, without intending; to retain tlie rest, his riirht
to stop in transitu is ;;one. Hammond v. Aiulrson, 1 N. K. (ID. See Sluhij v.
Hatfward, 2 H. HI. 504; Hanson v. Meyer, « Kast, G14 [Ex parte (Jihhe.n, 1 Ch.

D. 101; 45 L. J. Hank. 10. See, however, Bolton v. The Lancashire, dr.. Hail.
Co., L. R. 1 C. P. 431. 35 L. .1. C. P. 137]. Hut it is otherwise if he do intend
to retain the remainder- Bunny v. Poynts, 4 H. & Ad. 570; .see Wentworth v.
Outhicaitc, 10 M. & W. 451; Tanntr v. Scovell, 11 M. & W. 28. [Ax parte
Chalmers, L. R. 8 Ch. 289, 42 L. J. Ch. 37.]

It [has been] said that, primii facie, a delivery of part imports an intention
to deliver the whole. Per Taunton, .!., Belts v. (rililiins, 2 \. &. E. 73. That
diW?<m, however, which had l)een questioned by the author in Ids work on mer-
cantile law (rtftli edition. 488, 530). has been overruled l)y tlie Court of Ex-
chequer in Tanner v. Scorell, 14 M. & \V. 28, [and in Ex parte Cooper, 11 Ch.
D., at p. 73, Lord Esher, M. R., (then Brett. L. J.,) laid it down -that those
who rely upon the part delivery as a constructive delivery of the whole are
bound to show that the part delivery took place under such circumstances as
to make it a constructive delivery of the whole," and in Kemp v. Falk, 7
App. Ca. 573, Lord Blackburn says that " if either of the parties dissent the
part delivery is not a constructive delivery of the whole," and that he " rather
thinks the onus is upon those who say it was so intended"]. In Tanner v.
Scorell it was laid down that if the buyer takes possession of part, not
meaning tliereby to take possession of tlie whole, but to separate that part
only, it puts an end to the transitus only with respect to that part and no
more. In that case, under a ireneral order to deliver the goods, the l)uyer
procured the actual delivery of certain portions oftliein which he had resold,

LICKBARROW V. MASON. 1097

and the delivery of those portions was held not to operate as a delivery of
the whole, or to aflect the vendor's right as to the rest.

And in Jones \. Jones, 8 M. & W, 431, the assignee of a cargo of goods
under a trust deed took possession of part of the cargo upon its arrival, and
directed the rest to be conveyed to a designated place, with the intention of
obtaining possession of the whole for tlie purposes of the trust ; and it was
held that such taking possession of part did put an end to the transit ; but it
was in that case assumed to be clear law that the mere delivery of part to
the buyer, if he means to separate that part from the remainder, does not
amount to a delivery of the whole so as to defeat the right to stop in transitu.

In Tanner v. Scovell, supra, the whole question was stated to depend on the
intention of the buyer ; but perhaps that statement was intended to apply only
to cases like Tanner v. Scovell, where it Avas in the power of the buyer at the
time, if he pleased, to take all. [See the judgment in Bolton v. The Lan-
cashire, &c., Rail. Co., L. R. 1 C. P. 431 ; 31 L. J. C. P. 137, where the buyer took
part, having the power to take all, and refused to take the rest, and the right
to stop was lield not to be gone, and Exparte Catling, 29 L. T. N. S. 431, also
per Lord Blackburn, in Kemp v. Falk, 7 App. Ca. 586, cited sripra. In Ex
parte Gihbes, 1 Ch. D. 101 ; 45 L. J. Bank. 10, it was held that there was a
constructive delivery to the purchaser of the whole of the goods by a
delivery of part. In Ex parte Cooper, sup. it was held that part delivery did
not amount to a constructive delivery of the whole where freight had not
been paid on part of the undelivered goods, and in Kemp v. Falk, 7 App. Ca.
573, 52 L. J. Ch. 167, the facts were also held to exclude the notion of a con-
structive delivery of the whole cargo.

It was once thought that,] although the determination of the transit puts
an end to the vendor's right to stop the goods, the vendee [could not]
anticipate its natural determination, as for instance, by going to meet the
goods at sea. Hoist v. Poionall, 1 Esp. 240. Vide tamen, the judgment in
Mills V. Ball, 2 B. & P. 461; Oppenheim v. Eussell, 3 B. & P. 54; Foster v.
Frampton, 6 B. & C. 107; and ]VJiitehead v. Anderson, 9 M. & W. 518, where
it was laid down as indisputable, that if the vendee take tlie goods out of the
possession of the carrier into his own before their arrival, the right to stop
in transitu is at an end; though if he were to take them without the consent
of the carrier, it might be a wrong to him for which he Avould ha-^-e a right of
action. [See also The London and North Western Rail. Co. v. Bartlett, 7 H.
& N. 400.]

The carrier cannot prolong the transit of the goods after arrival at the
port of destination, by refusing to give them up to the consignee upon
demand and tender of freight. Bird v. Brown, 4 Exch. 786 [but "Transit
embraces not only the carriage of the goods to the place where delivery is to
be made, but also delivery of the goods there according to the tenns of the
contract for conveyance," per Lord Fitzgerald in Kemp v. Falk, 7 App. Ca. at
p. 588.]

Nor can the vendor's right be defeated by tlie enforcement of the claim
against the vendee, as, for instance, by process of foreign attachment at the
suit of his cretlitor, or by the carrier's assertion of a general lien against
him. Smith v. Goss, 1 Camp. 282 ; Butler v. Woolcot, 2 N. R. 64 ; Nicholls v.
Lefevre, 2 Bing. N. C. 83. [And see Mercantile Bank v. Gladstone., L. R. 3 Ex.
283; 37 L. J. Ex. 130.]

To make a notice effective as a stoppage in transitit, it must be given to the
person who has the immediate custody of the goods ; or if given to the prin-

1UU8 Li(i<HAi:i:<»\v v. mason.

clpal whose servant has tho custody, it must he ;jivcn at sucli a tiuic anil
uiulor sucii ciriuuistaufi's that thi- principal, by the fxcrclso of rcasunalile
dilifjence, may coniinuuicatc it to Ills servant, in time to prevent the delivery
of the {^ootls to the cousi;;nee. \\ hitrhfad v. AnilfrnDii, 'j M. &. W. 5lM. [See
also Ex jxtrtf W'atnon, in re Locf, 5 Ch. I). 35; 4<! L. J. IJank. 'J7. anil J'hrljm,
Stokes, (tiid Co., v. Coinhtr, 25) C-h. I). 813. As to whether there Is a duty on
the shipowner to c<immunicate, see per Lord HramwcU, A'jr p<irt<^ /-'nH:, 14 (h.
D. 455; per Lord lilackburn, Kemp v. Fulk, 7 App. ('a. 585.]

A stoppajife by an unauthorised person profe.ssinj; to act for the seller Is
Inoperative, though ratilled by the seller, if such ratification l>e after the
period durin;; which tlie seller himself could have stopped in tntngitu. Bird
v. Uroirn, 4 Kxch. TsC.

The second vendee of a chattel cannot, yenerally speakiuir, stand in a
better situation than his immediate vendor. ■Small v. Monte, 'J Uiu^. 574.
IKerne v. Deslaudes, 10 C. H. N. S. 2U5 ; 30 L. .1. C. P. 21)7, S. C. ; Shiridan v.
New Qumj Co., 4 C. B. N. S. G18; Srhitstrr v. M'h'ellnr, 7 E. & li. 704.] If,
therefore, the vendee sell tlie ^oods before they have been delivered to him,
he sells thcin, generally speakini;, subject to the vendor's ri}jht to stop
in transitu. Dixon v. Yaten, 5 li. & Ad. 313; Jinkijn.H v. I'xhorne, 8 Scott,
N. U. 505; 7 M. & (I. (178, S. C. [though see per Lord Kltznerald, Kemp v.
Fdlk, 7 App. Ca. at j). .V.)0. Subject to the vendor's rli;hts the .subvendce
woulil of course be entitieil to the ;;o<»ils, Kemp v. Fnlk, itld sup. ; Ex parte
Goldiiir/, Davi.'t, and Co., Limited, 13 C'li. 1). C>'2H.]

But on [the above] ride the principal ca.se has engrafted an exception; for
the second and main point in Liekhnrrow v. .Ma-son is, that the vendee nuiy.
by nejfotlatin^ the bill of ladin<; to a honci fide transferee, defeat the vendor's
rifjlit to stop in transitu. [.And the recent act to amend the Factors' .Vets. 40
& 41 Vict. c. 31), has extended this doctrine by enactinfr (s. 5) that: " Where
any document of title to jjoods has been lawfully indorsed or otherwise
transferred to any person as a vendee or owner of the fjoods, and such person
transfers such document by indorsement (or by delivery wliere the document
is by custom, or by its express terms transferable by delivery, or makes the
goods deliverable to the bearer), to a person who takes the .same ^o/ja .rt"(/e
and for valuable consideration, the last-mentioned transfer shall have the
same eft'ect for defeating any venilor's lien or risjht of stoppage in transitu
as the transfer of a bill of lading has for defeating the right of stoppage in
transitu." As to what is or is not a document of title to goods, see Cunn v.
Bnlckoio, L. R. 10 Ch. 491; 41 L. .1. Ch. 732; Kemp v. Folk, 7 App. Ca. 573;
52 L. J. Ch. 1G7.]

A succinct history of the law on this point is given by Lord Tenterden, in
his admirable work on Shipping, [p. 388, 11th cd. by Slice, 442,] where he
remarks, tliat "the earliest mention of the subject in our law books is the
case of Evans v. Martlett, 1 Lord Kaym. 271, 12 Mod. 15G; in Avhich Holt,
C. J., said ' the consignee of a bill of lading has such a property that ho may
assign it over : ' and Shower said ' that it had been adjudged so in the
Exchequer.' But in that case, the efl'ect of such an assignment was not
properly before the court, and does not appear to have been discussed or
argued; and the case supposed to be referred to by Shower has not been
found. In the case of Stiee \. Prescot, 1 Atk. 246, the right of the pawnee of
the bill of lading as against the consignor was not noticed or insisted upon."
He then proceeds to comment on the cases of Wright v. CampbeU, 204fi. 1 Bl.
628 ; Ilibbert v. Carter, 1 T. R. 445 ; Caldwell v. Ball, Ibid. 205 ; and Lickbarrow

LICKBAEROW V. MASON. 1099

V. Mason; and concludes by stating, [p. 435, 11th ed.], that " that cause was
tried again, and that the Court of King's Bencli. at the head of wliich Lord
Kenj^on had in tlie meantime been placed, and who had, in another cause,
expressed his approbation of the first judgment in this case, as being founded
on principles of justice and common honesty, again decided the case without
argument, in conformity to tlie first decision of that couit; 5 T. E. 683; and
in order tliat the question might again be carried to the other tribunals,
another writ of error was brought; but it was afterwards abandoned, and it
is now the admitted doctrine in our courts that the consignee may, under the
circumstances before stated, confer an absolute right and property upon a third
person, indefeasible by any claim on the part of the consignor."

[To defeat the vendor's right of stoppage, the indorsement of the bill of
lading must be for value. In Rodger v. The Comptoir d'Escompte de Paris,
L. R. 2 P. C. 393 ; 38 L. J. P. C. 30, it was held by the Privy Council that an
antecedent debt was not a sufficient consideration to defeat the I'ight of stop-
page in transitu. But the Coui't of Appeal have expressly dissented from this
case. Leask v. Scott, 2 Q. B. D. 376; 46 L. J. Q. B. 329, 576. In the former
case, Lyall, Still & Co. being pressed by the respondents, who were their
creditors to a large amount, executed an assignment of all goods and bills of
lading, or other documents for goods to arrive in December, 1866. In pursu-
ance of their agreement in tlie assignment, L. S. & Co., on the subsequent
arrival of goods, indorsed tlie bills of lading to the respondents without
receiving any consideration for such indorsement except an existing debt and
the release of an antecedent agreement bj' L. S. and Co. to furnish bills and
shipping documents, on the faith of which the advances were made by the
respondents to L. S. & Co. At the time of the assignment it was notorious
that the assignors were in difficulties ; and by the assignment, if not before,
they were made insolvent. It was held that the indorsement of the bills of
lading did not defeat the vendor's right to stop in transitu. See The Char-
tered Bank of India v. Henderson, L. R. 5 P. C. 501, a somewhat similar case,
in which it was held that the indorsement was for a sufficient consideration.

In Leask v. Scott (supra) the facts were as follows : On the 22nd December,
1875, Geen, Stutchbuiy & Co., fruit merchants in London, agreed to purchase
of the defendants a shipment of nuts from Naples to London, by the Trini-
dad, "reimbursement as usual," which was by acceptance at three months on
delivery of the shipping documents. On Saturday the 1st of January, 1876,
being prompt day, Geen & Co. being already indebted to the plaintiff', their
fruit broker, in between 10,000Z. and 11,000?., Mr. Geen applied to him for a
further advance of 2,000Z. The plaintiff" said, "You may have it, but you
must first cover up your account." Geen said he would give him cover, and
the plaintiff^'s cashier at once handed Geen a clieque for 2,000Z. On Tuesday
the 4th day of January, the bill of lading, dated the 29th of December, 1875,
indorsed by defendants in blanlv (the nuts being made deliverable to tlieir
order), was handed by tlieir agent to Geen & Co., and they at once accepted a
draft for the price, 224/. 16s. 2d. : and on the next day Geen & Co. handed to
the plaintiff" the bill of lading and other similar documents to the value of
about 5,000Z. in performance of their promise on the Saturday to give the
plaintiff" cover. On Saturday the 8th of January, Geen & Co. stopped pay-
ment. The Trinidad arrived off" Liverpool on the 3rd of February, and the
defendants sought to stop tlie nuts in transitu, the plaintiff" claiming them
under the bill of lading. The nuts were landed, warehoused, and sold, the
price being held to abide the result of the interpleader action.

1100 LICIOJAliUoW V. MASON.

In answer to qncstions by the jiul^ijo, the jury found tlmt the plaint ill"
received tlie bill of lading honestly and fairly : that valuul)le con.sidi-ratlon
was given on the uudurstaiidiug of security being given : and thai tlu- security
given was to secure the 2,UU0/., and also the old account.

On behalf of the defendant it was contended, on the authority of //<»(/;/(•>• v.
The Ciirii/ittiir d'Kscumiiti- tie I'dris, that the c(|Uitable right of stoppage pro-
vailed against a legal title acfpiircd by receiving the bill of lading for a eon-
siileration, no part of which was caused to be given by the bill of lading.
The Court of Api)eal, whilst of opinion that the defendant's argument was
the same as the rutin di'cidouU in Ilodijcr v. Tin' ('mujitnir d'h'.icoinpti- de J'<tn.t,
distinctly declined to follow that case, holding that there was " not a trace of
Buch distinction between cases of past and present ct)nsideration to i)e found
in the books: and further, that practically such a past consideration"
{qxuvre, transaction) " as was then uniler discussion had always a present
operation by staying tiie liand of tlie creditor." The judgment of Field, J.,
based upon the above case of liodijrr v. Thv Cotnjitnir, it'-., wjls accordingly
reversed. Another view of both of these cases uugitt |)erhaps l)e that the
giving of security should l)e treated as relating back to the agreement to give
it, in which case it would have been given for a present consiileration.
Quwre, how far I.i'ask v. SaAt is consistent with or overrules Simldimj v.
littding, (; Heav. 37(5.

Further, "although the shipper may have indorsed in blank a bill of lad-
ing, deliverable to his assignees, his right is not allected by an appropriation
of it without his authority. It is not a negotiable instrument like a bill of
exchange." Per Cam|)bell, C J., (inrncij v. J3< hrcnd, :5 K. & H. iV.V.l. See fur-
ther that case, also Srhunter v. M'KelUtr, 7 K. & B. 70-t ; {Tin' Marii' Jnmph)
Pease v. Glouhcr, L. U. 1 P. C. 219; 35 L. J. P. C. r,t!; Ilitt/n-sitifj v. LaiiKj, L.
R. 17 Eq. 1)2; 4:5 L. J. CMi. 233; Gilbert v. (iuifjiion, h. 11. 8 Ch. 1(5; (inhnrron
V. Kreeft, L. R. lo Mx. 274 : 4 I L. J. Kx. 238; Oij'j v. Shntcr, L. U. 10 C. P. 159;
1 C. P. I). 47; 43 L. J. C. P. 44; Mirahitn v. Imperial Ottmuan Bank, 3 Kx. D.
164; 47 L. J. Ex. 418; Ghjn v. E. tC W. India Dock Co., 7 App. Ca. 591, 52 L.
J. Q. B. 14(5, as to what state of facts has been held sufHcient to establish the
ability of the imlorser to confer a good title on a hona fide indorsee, and also
the Factors' Acts, which will be more fully noticed hereafter.]

If the assignee of a bill of lading act malU fidf ; for instance, if he knows
that the consignee of the goods is insolvent, and takes the assignment of the
bill of lading for the purpose of defeating the right to stop in transitu, and
so defrauding the consignor out of the price; he will be held to stand in the
same situation as the consignee : and the consignor will preserve his right of
stoppage. Per Lord Ellenborough, delivering judgment in Cumniiufj v.
Brown, 9 East, 514.

And if tlie bill of lading contain a condition, ex (jr., if it be indorsed upon
it that the goods are to be delivered, provided E. F. pay a certain draft, e^■ery
indorsee takes it suljject to that condition, and will have no title to the goods,
unless it be performed. Barrow v. Coles, 3 Camp. 92.

[Where the sliipper takes and keeps in his own or his agents' hands a bill
of lading, making the goods deliverable to his own order to protect himself,
the hold retained nuder the bill of lading is not merely a riglit to retain
possession till the conditions upon which it was given are fultilled, but in-
volves in it a power to dispose of the goods on the vendee's default, so long
at least as the vendee continues in default, Oyg v. Shutcr, 1 C. P. D. 47 ; 44 L.
J. C. P. 161.]

LICKBARROW V. MASON. 1101

Where the goods are shipped under such circumstances as to show an in-
tention tliat tlie property or riglit of possession should not vest in the con-
signee until some further act is done, such as payment, or handing over the
bill of lading, no question of stoppage in transitu can arise before that act is
done. See Turnery. Liverpool Docks, G Exch. 543; [^Sheridan v. Xew Quwj
Co., 4 C. B. N. S. 618.]

In cases where a bill of lading may be, and has been, pledged by the con-
signee of the goods, as a security for his OAvn debt, the legal right to the
possession of the goods passes to the pledgee ; but the right to stop them in
transitu, in case the consignee should become insolvent, is not absolutely
defeated, as it is in the case of a sale of the bill of lading by the consignee ;
for the vendor may still resume his interest in them, subject to the rights of
the pledgee, and will liave a right, at least in equity, to the residue which may
remain, after satisfying the pledgee's claim. And further, if the goods com-
prised within the lull of lading be pledged along with other goods belonging
to the pledgor himself, the vendor will have a right to have all the pledgor's
own goods appropriated to the discharge of the pledgee's claim before any of
the goods comprised within the bill of lading are so.

This was decided In re Westrdnthus, 5 B. & Ad. 817, where Lapage & Co.
having pui'chased oil from Westzinthus, paid for it by acceptance: and bc'
iug in possession of the bills of lading, pledged them with Hardnian &, Co.,
as a security for certain advances. Lapage & Co. became bankrupt, and
their acceptance in the plaintiff's favour was dishonoured. At the time of
their bankruptcy they owed Hardman & Co. 9271?. on account of advances;
as a security for which they held, bcf^ides the 1)111 of lading, goods to the
value of 9961?. Is. 7f?., belonging to Lapage himself. The court held that
Westzinthus, who had, upon the bankruptcy of Lapage & Co., given notice to
the master of the ship that he claimed to stop the oil in transitu, had alright
to insist upon the pi'oceeds of Lapage's own goods being appropriated to the
discharge of Hardman's lien, and, as they proved sufficient to satisfy it, had
a right to receive the entire proceeds of his oils.

" As Westzinthus," said Lord Denman, delivering the judgment of the
court, " would have had a clear right at law to resume the possession of the
goods on the insolvencj' of the vendee, had it not been for the transfer of the
property and right of possession, for a valuable consideration to Hardman, it
appears to us, that in a court of equity, such transfer would be considered as
a pledge or mortgage only ; and Westzinthus would be considered as having
resumed his former interest in the goods, subject to that pledge or mortgage,
in analogy to the common case of a mortgage of real estate, which is con-
sidered as a mere security, and the mortgagor, the owner of the land. AVe,
therefore, think that Westzinthus, by his attempted stoppage in transitu, ac-
quired a right to the goods in equity (subject to Hardman's lien thereon), as
against Lapage and his assignees, who are bound by the same equity that
Lapage himself was ; and this view of the case agrees with the opinion of
Mr. Justice Buller, in his comment on the case of Snee v. Present in Lickbar-
row V. Mason. If then Westzinthus had an equitable right to the oil subject
to Hardman's lien thereon for his debt, he would, by means of his goods,
have become a surety to Hardman for Lapage's debt ; and would then have a
clear equity to oblige Hardman to have recourse against Lapage's own goods
deposited with him to pay his debt in ease of the surety. And all the goods,
both of Lapage and Westzinthus, having been sold, he would have a right to
insist upon the proceeds of Lapage's goods being appropriated, in the first

1102 LR'KllAKUoW V. MASON.

InAtance, to the payment of the drht." [Soo tlils last point followwl In Ex
partf Al»lnn, L. K. 4 Ch. ItJs; uud set- (.'in'futrtj v. (JlndMnnr, L. K. i; rj|. 44; 37
L. J. C'h. 4112]

Spiililhuj V. liitiUnij, <! Mi-av. ;{7«!, <"onllriiis W'l'stzintlms's vnsv, nrnl hIiows
tliat thf ijooils lutnmU hf rftninftl an gernriti/ fur n yrnernl txtlanre af arrnuHt,
but only for tin* spi'cltlc advance made upon seeurlty of the bill of ladinf(.
[But compare as to the latter point, Itiuliji-r v. Thf Comptoir tCHiirinnpte dti
PdriH overrided by Lfnnk v. Smtt, aiilf, p. HOO. In Krmp v. Fnlk, 7 App. Ca,
57;J, ')2 L. .1. V\\. 1(;7. and A'r }mrtc (inlilimj, l)<irin %{• (%>„ LiinUeil, i:\ Ch. 1).
(i^M, tlif cases of Sptildimj and lludimj and K/ jntrtf W'fgtziitlhua are followed
and approved.]

Wlillst. however, the in<lorsenient of a 1>111 of ladini; ndi;ht defeat the rli;ht
of stoppa;;e in tninsitn, still l>efore tlie statute is i<. I'.i Vict. c. Ill, the
transfer of a bill of hulini; did not, like that of a bill of exchange, confer any
rl{;ht on tin- assii^nee to sue upon the contract expres.sed thereliy. 'I7ii»npiiim
V. Duminy, 14 M. & W. 4o:J : Ilntr.trd v. Sh'phi-rd, 9 C. B. TM\.

That statute, howevt-r, has altere«l the law in this respect. By the first
section ri<;lits of action and Iiai>Hities upon tlie bill of ladlnt; are to vest in
and l)ind the coiisi;;nce or indorsee tn trhmn thf prnpryttj in ttn ijiiud.i shuil pass.
[See Fn.1- v. \i^tt, ('. II. & N. ('..{O ; :io I,. .1. Kxi-li. '.'.".'.», showini; tliat the section
was not intended t<) exonerate tile orii^inal shipper; Sfmrl v. .S7;/*/i.i<>//, L. U.
1 ('. r. 24M; :\r, L. .]. V. v. 147; and Thr St. Clnud, Brown & Lush.. Adm. Ca.
4. As to what \n prinn't/itcif evidence that the property pa.s.Hed. see Dnirarhi
V. The Anijlit-Eyijptian Hunk, L. K A ('. T. I'.M); :t7 L. J. ('. P. 71; and see
The Freedom, L. R. 3 P. C. '.'.M.

The (piestion wliether hulorsciucnt and delivery of tlie bill of Ijidinir by way
of security for an advance passes " tlic property in tlie jioods " witldn tills
section, so as to make the indorsee liable for frei;jht, lias been very fully dis-
cussed in linrdirk v. Snrr/l, K) l^. B. I). IWi.l, nu^. H. I), l.'.lt. and U) Ai)p. Ca.
74. In that case it was eventually decided by the House of Lords tliat where
such indorsement and delivery operates merely by way of pledjje, .so as to
give a special jiropcrty only to the plodifee and not as an assignment of the
whole property in tlie ijooils, the pletlgee is not an Indorsee to whom the
property passes within the act. -Vnd aruitde {^per Lord Selborne at p. 8'>, and
Lord Blackburn at p. OC), it would l)e tlie .same if tlie transaction were in
fact a mortiraire. though that point was not decided by the House of Lords
(see p. 103).

The pledgee would, however, be liable, irrespectively of the Act, on the
bill of lading if and when he should take delivery of the goods under the bill
of lading, pir Lord Selborne, ib. at pp. Hd-.s;), and Allen v. C<>lt<irt, 31 W. H.
841, and 48 L. T. 944, on the ground that the fact of so doing is evidence of
a new agreement by him with the shipowner to comply with the terms of
the bill of lading.]

By the second section it is provided that the act is not to affect the right of
stoppage in transitu, or claims for freight against the shipper or owner of
the goods, or the consignee or indorsee as owner, or by reason of his receipt
of the goods. It should seem that the statute has not altered the rule, that
the indorsement of a bill of lading gives no better right to tiic indorsee than
the indorser himself had, and that in this respect a bill of lading still difl'ers
from a bill of exchange in the same way as it did before the statute ; see
Gurnoii v. Behrend, 3 E. & B. G22. In that case the bill of lading was sent in
a letter from a shipper, stating that he had drawn against the consignment,

LICKBAREOW V. MASON. 1103

and it was held that the acceptance of the draft was not thereby made a con-
dition precedent to the riglit to negotiate the bill of lading, though if it had
been, and had not been complied with, an indorsement of the bill of lading
would not have defeated the seller's title. And see Key v. Cotcsworth, 7 Exch.
595; [The Argentina, L. R. 1 A. & E. 370, and the cases on this point cited
ante, p. 810.

If the shipper indorses the bill as a pledge, and whilst it is so held the
goods are misdelivered, he may, on reindorsement of the bill to him on pay-
ment of the advance for which it was pledged, sue for the misdelivery. Short
V. Simpson, 35 L. J. C. P. 147; L. R. 1 C. P. 248.

The rights and liabilities of the consignee or indorsee under the act, pass
from him by indorsement over. Smnrthicaite v. WiUcins, 11 C. B. N. S. 842;
31 L. J. C. P. 214; if the indorsement be such as to pass the property under
the act, Burdick v. Seidell, supra.

But a consignee who has sold the goods, but has not indorsed the bill of
lading to the purchaser, remains a consignee within the act, so as to be liable
under the bill of lading, Foider v. Knoop, 4 Q. B. D. 299 ; and conversely an
indorsee has a right to sue thereon, although he has sold the cargo before
taking proceedings : The ^farathon, 40 L. T. N. S. 163.]

The third section provides that a bill of lading in the hands of a consignee
or indorsee for value without notice shall be conclusive evidence of shipment
against the master or other person signing the same, notwithstanding that such
goods, or some part thereof, may not have been so shipped, provided that he
may exonerate himself in respect of such misrepresentation by showing that
it was caused without any default on his part, and wholly by the fraud of the
shipper, or holder, or some person under whom the owner claims. [It has
been held that this section does not estop an owner who has not personally
signed the bill of lading. Jessel v. Bath, L. R. 2 Ex. 267; 36 L. J. Ex. 149;
M'Lean v. Fleming, L. R. 2 H. L. Sc. App. 128; Blanchet v. PowelVs Llantwit
Collieries Co., L. R. 9 Ex. 74; 43 L. J. Ex. 50; Broivn v. Poicell Coal Co., L.
R. 10 C. P. 562 ; 44 L. J. C. P. 289.

See as to the negotiability of a bill of lading after the lauding of the cargo
at the port of destination. Barber v. Meyerstein, L. R. 4 H. L. 317; 39 L. J.
C. P. 187.]

A factor to whom a pledge was consigned, stood in a difterent position
from a vendee with respect to his power to pass the property therein by an
indorsement of the bill of lading. For, though he might bind his principal
by a sale thereof, he could not by a pledge, that not being within the usual
scope of his authority. Martin v. Coles, 1 M. & S. 140; Shipley v. Kymer,
Ibid. 484; Neiosom \. Thornton, 6 East, 17 [and see Thackrah v. Hardy, 25
W. R. 307].

But by statutes 4 Geo. 4, c. 83, 6 Geo. 4, c. 94, 5 & 6 Vict. c. 39 [and 40 &
41 Vict. c. 39] usually called the Factors' Acts, the law upon this subject was
altered. [As to sect. 1 of 6 Geo. 4, c. 94, which does not deal directly with
the subject of this note but with the position and authority of persons in-
trusted with goods and of persons in whose names goods shall have been
shipped, see Mildred v. Maspons, 8 App. Ca. 874, per Lord Blackburn.]

By sect. 2, a person intrusted icith, and in possession of any bill of lading,
is to be deemed the true owner of the goods described in it, so far as to give
validity to any contract made by him, for the sale or disposition of the goods,
or any part thereof, or for the deposit or pledge thereof, or ami part thereof,
as a security for any money, or negotiable instrument, provided the buyer,

l|nl LICKDAUKUW V. MASON,

ilispoiue, nr pnwnco, liavc no notice hj- the bill, or otiierwlsc. that ht- was
not till- actual Inma Jiili- owner of the j;oot!s. I'pon the ((Ucstlon «ho Is to Im?
consulcred a '■ i»rHi)n iiUnmltd" within the ineaniii^ «»f this section, see t'litse
V. //i>l„t>n, 2 M. & li»U. 2:J; l'hiUii>» v. UhIU, «; M. i \V. tJUi ; llnttirld V,
J'hiHii>s,\> M. & \V. <;47; 14 M. & \V.CG5; 12 CI. & Fin. 343; Uunzi v. Strwart,
5 Scott, N. U. 1 ; 4 M. & (i. .•>25 [nuint-a V. Sieainatnt, 4 B. & S. 270; 32 L. J.
C. n. 281 ; Johnston v. Cm/if Lyunnai», 3 C. P. I). 32; 47 L. J C. P. 241. /x-r
Hramwell, L. .1.. wlui elaborately shi>ws that •■ pi-rson lntrnste<l" means
" factor or ajjeiit liitrnsteil as such." As to the iiatnre of the agency, see
iii/ni, p. 818] ; and as to what Is a " diaptixilion" see 'J'nylor v. hijinrr, 3 K. &
Ad. :i37.

But by sect. 3, If the deposit or ph-dije lu* as a security for a pre-ejintiny
demand, the depositee »»r pawnee acipiires oidy tlie same Interest in them that
was possesseil by the person making tlje deposit or pledjje. [See on this »ec-
th)n Jfirnn v. W'hidrorth, L U. 2 K<i <;i»2 ; Murnte v. (iumt, L. U. 4 Eq. 315;
Kalti)ih(irh V. LftriM, 10 A pp. C'a. (".17.

As to the 4tli section, see linima v. Smiinson, Hiifirn.]

Sect. T) enacts that any person may ."ici-ept such i;o<nls or document as afore-
said, on deposit or pledge, from any factor or a:;ent. nonrithnt'indinij he »hnll
hdi-f Hotiii' that the party Is a factor or ai;ent : l)Ul In such ca.se he shall
ac(|uire sucli Inlerest, and no fnrtlier or other, tis was possessed by the factor
or a;:ent at tlie time of the deposit or pled;je; and, therefore, in this last
case, If tlie ajjent's interest be defeasible, so is the pled^fee's. Itlitndij v. Allen,
Dans. i<: Lloyd. 22; Fhtrhi-r v. Iliitth, 7 B. 4 ('. .'>17. A fraudulent sale can-
not be upheld as a pled^^e under this section. I'hompHon v. Fannrr, 1 .M. &
M. 4M.

The |irovisioiis of tills statute ((5 (Jeo. 4, c. IM). bciiiii found insulllcient to
niet't tlie wishes or convenience of men-iiants. stat. .'» v<: (! Vict. c. 31), '• An act
to amend tlie law relating to advances bunii Jidv made to af^ents Intrusted with
gootls." was passcil (;i(itli ,Iuiie, 1812).

The 1st section, after recitin;; intir alia, that by (', (Jco. 4, c. I>4, " validity is
{riven, imder certain circumstances, to contracts or agreements made with
persons intrusted w ith and in possession of the documents of title to goods
and merclKiudize, and consisrnee making advances to persons abroad who are
intrusted witli any jrootls and merchandize are entitled, uniler certain circum-
stances, to a lien thereon, but under tlie said act and the present state of the
law. advances cannot safely be made upon goods or <locunients to persons
known to have possession thereof as agents only ; " antl that " advances on
the security of gootis and merchantlize li.nd become an usual and ordinary
course of business, and it was expedient and necessary that reas<mablc and
safe facilities should be aflbrded thereto, and that the same protection and
validity should be extended to bond fide advances upon goods and merchan-
dize as by the 6 Geo. 4, c. 94, is given to sales, and that owners intrusting
agents with the possession of goods and merchandize, or of documents of
title thereto, should in all cases where such owners by the 6 Geo. 4, c. t>4, or
otherwise, would be bound by a contract or agreement of sale, be in like
manner bound by any contract or agreement of pledge or lien for any
advances bond fide made on the security thereof; " and tliat " much litigation
had arisen on the construction of the (5 Geo. 4, c. 94, that it did not extend to
protect exchanges of securities bond fide made, and so much uncertainty
existed in respect thereof, that it was expedient to alter and amend the same,
and to extend the provisions thereof, and to put the law on a clear and certain

LICKBAllROW V. IVIASON. 1105

basis; " enacts " that from and after the passing of this act any agent who
shall hereafter be intrusted ivith the possession of goods " [Freeman v. Apple-
yard, 32 L. J. Exch. 175], " or of the docAiments of title to goods, shall be deemed
and taken to be owner of such goods and documents, so far as to give validity
to any contract or agreement by way of pledge, lien, or security bond fide
made by any person with such agent so intrusted as aforesaid, as well as for
any original loan, advance, or payment made upon the security of such goods
or documents, as also for any further or continuing advance in respect thereof,
and such contract or agreement shall be binding upon and good against the
owner of such goods, and all other persons interested therein, notwithstanding
the person claiming such pledge or lien may have had notice that the person vjith
whom such contract or agreement is made is only cm agent."

This, as well as the other provisions of the statute, though wide enough in
terms to include many other cases, has been limited in construction to mer-
cantile transactions. So that in Wood v. RoiccUffe, 6 Hare, 191, where it was
contended that advances made upon the security of furniture in a furnished
house, not in the way of trade, to the apparent owner of the furniture, who
in fact was an agent intrusted with the custody of it by the true owner, were
within the protection of 5 & 6 Vict. c. 39, Sir James Wigram, V.-C, held the
contrary, saying in the course of his judgment: " the first act (6 Geo. 4, c.
94), is for the ' protection of the property of merchants and others,' and the
property referred to is 'goods, wares, and merchandize,' intrusted to the
agent ' for the purpose of consignment or sale,' or ' shipped ' ; " [see the first
section of the act;] " and upon a judicial construction of the act it has been
held that the generality of the expressions must be restricted. Every servant
of the owner of goods employed in the care or carriage of such goods, is in
one sense ' an agent intrusted with goods,' but still he is not an agent within
the meaning of the statute; MonJc v. Whiltenbury, 2 B. & Ad. 484. The title
of the second act (5 & 6 Vict. c. 39) is more general ; but it appears to me to
relate to 'agents,' and to ' goods and merchandize,' in a sense Avhich is not
applicable to the agency or the property in this case."

In Monk v. Whittenhury, supra, it was considered that a carrier, warehouse-
man, packer, or wharfinger is not " an agent," within 6 Geo. 4, c. 94; and Sir
James Wigram, V.-C., appears to have treated that decision as applicable also
to the construction of 5 & G Vict. c. 39.

[In Lamb v. Attenborough, 1 B. & S. 831 ; 31 L. J. Q. B. 41, a wine-merchant's
clerk was held not to be his " agent" within the meaning of the Factors Acts,
but only his servant; but in Hayman v. Flewker, 13 C. B. N. S. 519; 32 L. J.
C. P. 132, a person intrusted with pictures for sale on commission, and whose
ordinary business did not extend to selling on commission, was held to be an
"agent" within 5 & 6 Vict. c. 39, s. 1, as his employment on the occasion
corresponded with that of a factor. In the two cases of Johnson v. Credit
Lyonnais Co. and Johnson v. Blumenthal, 3 C. P. D. 32, 47 L. J. C. P. 241, the
Court of Appeal affirmed two judgments of Denman, J., and Pield, J., in
which those learned judges respectively held that a vendor who had been left
by his vendee in possession of documents of title to goods till it suited the
convenience of the buyer to accept delivery, could not under the Factors
Acts confer a good title upon a bona fide pledgee. These judgments, though
clearly in accordance with previous decisions, created some consternation
amongst commercial men, and led to the passing of another Factors Act, 40
& 41 Vict. c. 39, whereby it is provided (sect. 3) that " where any goods have
been sold, and the vendor or any person on his behalf continues or is in pos-

1100 LICKHAUUOW V. MASON.

st'ssion of the ilociiintiiis .ii liiU- thereto, any sale, pledge, or other clispoHl-
lloii of tlie ^ooils or <loeumeiils luacU' by siieh veiulor or any person or a«ent
liitriistetl l)y the vmilor with the yooils or dociiineiitH within tlu- meaning of
llic priiuipal acts as aiiuMuU'tl l>y tills act. so eoiitlniiitiv; or helni; In posses-
sion, shall In- as valid anil ctfertual as if smh vendor or person were an a);ent
or person Intrusted hy the vendee with the j;oods or doeiiments within the
meaning of the prlnelpal aets as amended by this a<t, provided the jierson to
whom the sale. ple<lije. or other disposition Is made has nt>t n<»th-e that the
jjoods have been previously sold."]

In .hnkijnit v. Vulxtrnr, M Seott, N. H. 50'.; 7 M. & C. f>78. S. C, eonllnne<l
by Vnn L'antcel v. linnkt-r, 2 Kxeh. •IDl. a ventlee wh»> hail rerelveil from the
vendor a delivery order for the ijootls was considered not to be a person In-
trusted with a ilellvery order within the <! (Jeo. 4, e. \\\, s. 2. s(» as to W eapa-
bh- of makinj; a valid pledge of the delivery onler. and so defeat liiu' the rluht
of stoppage in trnnsitn. [ Hnt the law In this respect also has been alteretl by
the last Factors Act. 40 v"i 41 Viet. c. ;$y. which provides (sect. 4) •• that where
any K<'o<ls liave been sohl or contracted to be stdd, ami the vemlee. or any
person on his behalf, obtains the possessh>n of tlie documents of title thereto
from the vendor or Ids agents, any sale, pledge, or disposition of such jjoods
or documents by such veude*- so in possession, or by any other |)erson or
aiiciil intnisteil by the vendee with the «locum«'nts within the meanin*; of the
primipal acts as anu-nded by this net. shall be as valiil ami etl'e<tnal as If such
vcudt-e or other person were an a^ent or person lntrust«Ml by the vendor with
the documents within the meauiui; of the principal acts as ,nmende<l by this
act. provided the person to whom the sali-, ple<li;e. or other <lisposltlon Is
made has not notice of any lien or other ri<iht of the vend(»r in respect of the
jjoods." In Jomph v. W'lhh, t'ab. & El. 2«;2. It was heUI by lluddleston. B..
that a mortj;aj;or In possession, with power to sell o\\ his own account, did
not come within the Factors Acts.

Questions of nicety have arisen as to liow far It Is necessary that the a^ent
at the time when he pled>;es the icoods slioidil be Intnisted with the ^iiods
for the purpose of sale.

In liainra v. Sinunaon, 4 B. & S. L»7o, the transaction was held protecteil,
thouurh the instructions kIvcii to the aircut were •• U'e send you (the factor)
the Hoods for tlie puriMise <»f elVectini; this sale, which we shall ratify and
approve through you, and we Intrust you with the possession of the jjoods
to sec if they answer the description we have ^Iven." The aj^ent in that case
was by trade a factor.

In Fitcntes v. Montis, L. R. 3 C. P. 2(18 ; 37 L. J. C. V. 137. the subject is
elaborately discussed in the judiiment of Willcs. J. It was there held that
the auent must be intrusted for the purpose of or in connection with the
sale, and, therefore, tlKit where the power of .sale had »)een revoked at the
time of the pledge, the transaction was not protected. This decision was
upheld in the Exchequer Chamber, L. R. 4 C. P. 93; 38 L. J. C. P. 05. (It
should be observed, however, as regards revocation, that by 40 & 41 Vict. c.
39, s. 2, it is provided that " where any agent or person has been intrusted
with and continues in the possession of any goods or documents of title to
goods within the meaning of the principal acts as amended by that act, any
revocation of his intrustment or agency shall not prejudice or att'ect the title
or rights of any otlier person who without notice of such revocation pur-
chases sucli goods, or makes advances upon the title or security of such
goods or documents.")

LICKB ARROW V. MASON. 1107

Notwithstandiug a dictum of Lord Westbury in Vickers v. Hertz, L. R. 2
Sc. App. 113, the decision in Fuentes v. Montis was followed by the Court of
C. P. in Cole v. The N. W. Bank, L. R. 9 C. P. 470, where it was vainly con-
tended that the omission of the words " intrusted for sale" and " consign-
ment for sale" in 5 & G Vict. c. 39, ss. 1, 4, altered the law upon this point, as
it existed under tlie previous statutes. That case was aflirraed on appeal to
the Exchequer Chamber, L. R. 10 C. P. 354, 44 L. J. C. P. 233, and has since
been followed in the important case of Johnson v. Credit Lyonnais Co., 2 C.
P. D. 224; 3 C. P. D. 32; 47 L. J. C. P. 241, and also in HeUings v. Russell,
33 L. T. N. S. 380, where Lord Justice Brett says, " Tlie question is, Did the
agent carry on a commercial agency business of the nature of a factor ? "
The decision in Cole v. North Western Bank comes to this : that an agent who
can pledge or sell must be an agent of that class which, like factors, have a
business which, Avhen carried to its legitimate result, would properly end in
selling or in receiving payment for goods. Per Lord Blackburn, Citt/ Bunk
v. Barrow, 5 App. Ca., at p. 678.

For tlie purposes of tlie acts the fact of the goods having been obtained
from the principal by fraud is immaterial. Sheppard v. The Union Bank of
London, 7 H. & N. OGI ; 31 L. J. Ex. 154.]

The 2nd section [of 5 & 6 Vict. c. 39] authorises the substitution of other
goods, documents of title, or negotiable securities for those first deposited
in consideration of a previous advance; but provides that the lien acquired
upon the substituted property shall not exceed the then value of the property
given up. The decision which pointed out the necessity for that section was
Bonzi V. Stewart, 4 M. & G. 525, 5 Scott, N. R. 1, S. C. [See upon the con-
struction of it, Sheppard v. Union Bank of London, 7 H. & N. 661.]

Sect. 3 provides and enacts that the act shall be deemed and construed to
give validity to such contracts and agreements only, and to protect only such
loans, advances, and exchanges, as shall be made bontt fide, and loithout notice
that the agent making such contracts or agreements is acting ivithout au-
thority or mala fi.de against the owner; that "it shall not be construed to
extend to or protect any lien or pledge for an antecedent debt ; " [Jeioaw v.
Whitworth, L. R. 2 Eq. 692; Macnee v. Gorst, L. R. 4 Eq. 315; Kaltenbach v.
Lewis, 10 App. Ca. 617; a sale for an antecedent debt was held good, Thackrah
v. Fergusson, 25 W. R. 307] — " nor to authorise any agent in deviating from
any expressed order or authority received from the owner — but that, for the
purpose and to the intent of protecting all such bona fide loans, advances,
and exchanges as aforesaid (though made with notice of such agent not
being the owner, but without any notice of the agent's acting without
authority), and to no further or other intent or purpose, such contract or
agreement as aforesaid shall be binding on the owner and all other persons
interested in such goods." It has been held upon the construction of this
section, that notice that the factor had the goods for sale was not of itself
notice that he had no authority to pledge. Xavid.-^haw v. Brownrigg, 21 Law
J. Chauc. 57, Vice-Chancellor.(Lord Cranworth), Ibid. 908, [2 De G. Mac. &
G. 441,] on appeal. Lord Chancellor (Lord St. Leonards). [As to the proper
mode of putting the <iuestion of notice to a jury, see Gobind v. Ghunder Sein,
app., Valentine llyan, resp., 9 Moore, Ind. App. 140; 5 L. T. N. S. 559, S. C]

By the 4th section " any bill of lading, Lidia warrant, dock warrant, imre-
house keeper's certificate, warrant or order for the delivery of goods, or any other
document used in the ordinary course of business as proof of the possession or
Control of goods, or authorising or purporting to authorise either by indorsement

11U8 Li('KiJAi:i:uw v. mason,

or hij (IrlirHrij, the posHcssor of sinli tlin'iiiiifiii t.> inmsfrr or receive gotMlM
thereby ri-preseiittnl, sliull be deemed mid taken to \h' i\ili>rninfiit uj titlr witlilu
the iiieiiniiii; of tlds act: — and any a^ent intrusted as aforesaid, and pfjs-
Hessed of any such doeiinient of title, whether ilerived Intinediately from thu
Dwner <d' siieh (foods, or obtained by reason of sii<-h ai;ent'.s lia\ ln:{ Ix'en
Intrusted with the |>ossrssion of the <:oods, or of any other doeunient of title
thereto, shall be deemed and taken to have been intnistftl with tlie poHHenslon
of the iroods represented by sm-h ilocument of title as aforesaid:" — (This
legislative Interpretation of the word "Intrusted" was pMideretl neres.sary
by the decisions in I'/iillipit v. Hitth, >', M. & \V. ilo.'.. anil If'tfjhlil v. I'hillipa,
M. & \V (U:, alllrmed In the 11. of Lonls. H M. &. \V. r,47, 1'2 CI. & Fin. :{4:J.
S. ("., tiiat a factor intrusted with a bill of ladini;, and who, l»y reason of
havinu the bill of lading, was enabled to and did (but not In pursuance of
the Instructions of his principal) possess himself of a doik warrant, wa.s
not to be consiilered a person Intrusted with the tlock warrant within the
meanin<; of (! (leo. 4, e. 1)4 : [.sec the distinction between Intrusting with and
enablini; to nbtain possession of. Illustrated by Crompton, .1., In Hnimst v.
Sii'iiinsDii. I H. .t S. '271). and Jithiimtn v. Creilit Liftiniuiin, l\ V. 1*. 1). ;J2, 47 F*.
J. (\ I'. LMI. pi-r Hramwell, L. .1.]) — Ami "all «-ontnict.s jthihiinij ur ijicimj a
lini iipiiii sitrh ii,ntiii'ii' <>/ litlf an aforesaid shall Iw deemed and taken to l>e
respectively jtlnhjiH nf unit lifits itjinn thr ijixuls to which the same relates : " —
" And sui'h ai;etit shall be deemed to be posse>».seil of such ;;oods or dfK'U-
nicnts, whether the same shall lu- In his uriuiil ruMi»lij, or shall be held by any
ollu-r person subject to his control or for him or on his Iwhalf:" — And
" where any loan or advance shall be luniil fl*lr ina<le to any a;;ent intnisted
with and in4iossesslon of any such ijoods or ilocuiiii'nts of title as aforesaid,
on the faith of nny rtni/nirt id- itijri'fnunt in tcn'timj to consljjn, de|>oslt, trans-
fer, or deliver such -foods or do»"uments of title as aforesaid, and such -foods
or tlt)cuinents of title shall nrtnnlhj hi- rn-'-iriil by the person makliiif such loan
or advance, iritlimit iintir>- that such a-.;ent was not autlioriscd to make such
pledife or security, every such loan or ailvance shall be dceinetl and taken to
be a loan or advance on the security of such {foods or documents of title
within the meaninif of this act, thnuijh »wh ijnnilst or ihn-nuifnts n/ title shall
not actuitlhj he rrreiml l>if the person mnkinf/ surh loan or ailrnnre till the period
snhseqiirnt thereto : " — (This enactment may have sprunsf from the inclination
of opinion expressed upon the second point arifue*! but not decided, in lionzi
V. Steiciirt. 4 M. & (1. 21>."> ; .'i Sc<»tt, N. U. 1. [See also Portnlis v. Tetleij, L.
R. 5 E(i. 140; Cole v. .V. H'. Bunk, snp.']-.) — And "any contract or aifree-
ment, whether made direct with such ajfent as aforesaid, or iriih any rlerk or
other person on his hehnlf, shall be deemeil a contract or ajfreement irith sitrh
agent:" — And ''am/ paijinent made, whether A.v monnj or hills of eyehange or
other nejfotiable security, shall be deemed and taken to be an advance within
the meaning of this act:" — " negotiahle securit>j" that is, for the payment of
money, scmhle, Taylor v. Kymer, 3 B. & Ad. 320; and althousfh the words are
any payment, yet with reference to the object of this act they must be con-
strued to mean any payment by way of loan or advance, and not to include a
case where the real object of the parties is not a loan or advance, such as was
Loaroyd v. liuhinson, 12 M. & W. 745, where the factor, being liable with the
defendant on a bill of exchange, obtained a sum of money from the defendant
to take up the bill, at the same time depositing with him the plaintiff's goods.
In that case the direction of the judge, CoUman, J., to the jury to find for
the plaintiff if they considered what was done to l)e " only a circuitous mode

LICKBARKOW V. MASOX. 1109

of paying the bill on which the defendant was liable," was upheld by the
Court of Exchequer. — Aud "an agent in 2}ossession as aforesaid of such
goods or documents shall be taken, for the purposes of this act, to have been
intrusted therewith by the owner thereof, unless the contrary can be shoion in
evidence.

The 5th section provides that nothing in the act contained shall lessen,
vary, alter, or aftect the civil responsibility of an agent for any l^reach of
duty or contract or non-fulfllment of his orders or authority.

[The 6tli section has been repealed by 24 & 25 Vict. c. 95, but, with some
alteration, re-enacted by an act consolidating and amending the statutes
relating to larceny and like offences, viz., 24 & 25 Vict. c. 96, by the 78th
section of which a factor or] agent exercising the powers virtually con-
ferred upon him by [5 & 6 Vict. c. 39] mala fide, and without the authority
of his principal, [is] subject to punishment by [penal servitude or impris-
onment], as for a misdemeanor, unless where the property dealt with is not
made a security for or subject to the payment of any greater sum of money
than the amount which at the time was justly due and owing to such agent
from his principal, together with the amount of any bills of exchange
drawn by or on account of such principal, and accepted by such agent: or
[by s. 85 of the 24 & 25 Vict. c. 96] unless he shall, previously to his being
[charged with the offence], have disclosed it, [/?. v. Skeen, 1 Bell, C. C. R. 97;
28 L. J. M. C. 91] on oath, in consequence of compulsory process in any pro-
ceeding bona fide instituted by any party aggrieved, or in an examination or
deposition before any court of bankruptcy or insolvency.

Sect. 7 [of the 5 & 6 Vict. c. 39] preserves the right of the owner to re-
deem, and enables him to prove under the bankruptcy of the agent for the
amount paid to redeem, or the value of, the goods. [See on this section,
Kaltenhach v. Leicis, 10 App. Ca. 617, 55 L. J. Ch. 58.]

The 8th section is the common interpretation clause, and the 9th and last
excludes a retrospective application of the provisions of the act.

This act, 5 & 6 Vict. c. 39, it may be observed, relates to advances upon the
security of goods, and it will still be necessary to resort to the 2nd and 4th
sections of 6 Geo. 4, c. 94, in cases not falling within that category.

Stoppage in transitu. — The right of stoppage in transitu^ says
Chief-Justice Shaw in Rowley v. Bigelow, 12 Pick. 313, is noth-
ing more than an extension of the right of lien, which by the
common law the vendor has upon the goods for the price, origi-
nally allowed in equity and subsequently adopted as a rule of
law. See, also, Stubbs v. Lund, 7 Mass. 453, 9 Mass. 65 ; Scho-
field V. Bell, 14 Mass. 40 ; Stanton v. Eager, 16 Pick. 467 ; Bab-
cock V. Bonnell, 80 N. Y. 244 ; Newhall v. Vargas, 15 Me. 314 ;
Ludlow V. Bowe, 1 Johns. 16, 5 Denio 629. When, by the terms
of the sale, the price is to be paid on delivery, the vendor has a
right to retain the goods till payment is made. But when the

1110 I,irKl5Ai:it<)W V. MASON.

vi'iulor iuid vendee are at a distance from each other, and
if, while the j^'ckxIs are on the way from the vendor U* the
vendee, the latter heeomes insolvent and the vendor ciin re-
possess himself of thr goods ht-fore they reach the vendee, hi-
h;is ii rij^dit to do so, and tlierehy regain his lien ; Rowley v.
liigelow, u/ii xN/ini.

Tiie general doctiiiii! of the dei-isions on this hraiuh of the
law is, that the right dejiends solely npiin the innoltunci/ of the
vendor. Bnt the term insolvency in this connection denotes
more than merely having taken tin* henctit of an insolvent or
hankrnpt l;iw ; it also inchides a failnrr to j>ay his <Kd)ts as
they become dne, or his inability to jmy for the goods, if he
was to pay on delivery; Rogers c. Tlutinas, 20 Conn. .'A, 1"J'^
Mass. 12; Thompson r. Thompson, 4 Cash. 127; Lee v. Kil-
Imrn, nCuay oi^ ; IK-rrick c. Horst, 4 Hill GoO ; Chandler r.
Fulton, 10 Texas 2; Atkins r. Colby, 20 N. II. lo4 ; Nayler v.
Dennie, 8 Pick. 11>8; Hays r. Movoille, 14 Penn. ol ; Secomlje
V. Mill, 14 B. Monroe 324.

In Rogers v. Thomas, uln xupra, it was luld that it was essen-
tial to the right of xtoppajie in tntm^itn, that the insolvency
should intervene between the time of sale and the exercise of
the right of stoppage. But this is not the prevailing doctrine
of the American cases; Benedict v. Schaettlc, 12 Ohio olo;
1 Disney 445; O'Brien v. Norris, !•; Md. 1 i^J : l.o,-b r. Peters,
G3 Ala. 243; Blum v. Marks, 21 La. Ann. 2t;s ; K,.ynolds v. B.
& M. R. Co., 43 N. II. 580. If the vendee was insolvent at the
date of the sale, but the vendor did not discover it till after-
wards, his right of 8toppa;/e remains; Benedict v. Schaettlc, 12
Ohio 515: Gustine v. Phillips, 38 Mich. GT5 & 390 ; Blum v.
Marks, 21 La. Ann. 268 ; Schwabacker v. Kane, 13 Mo. App.
126; Bender I'. Bowman, 2 Pearson (Pa.) 517; More v. Lott,
13 Nev. 380 ; White v. Welsh, 38 Pa. St. 306. It is not nec-
essary to show that the price for the goods is due and pay-
able ; Clapp V. Sohmer, 55 Iowa 273.

The right of stoppage hi transitu does not exist where the
goods are consigned to a creditor of the consignor in payment
of the debt of the consignor ; Clark i\ Mauran, 3 Paige (N. Y.)
373 ; Wood v. Roach, 1 Yeates (Pa.) 177. Nor does the right
exist against a bond fide indorsee of a bill of lading for value ;
Dows V. Perrin, 16 N. Y. 825. See Summeril v. Elder, 1 Binn»
106 ; Eaton v. Cook, 32 Vt. 58.

LICKBAEllOW V. MASON. 1111

Continuance of the right. — The right continues so long as
the goods are in the possession of the carrier as such, and so
long as they remain in any place of deposit connected with
their transmission ; 2 Kent Com. 544-5 ; Buckley v. Stick-
ney, 15 Wend. 137, 23 Wend. 611 ; White v. Mitchell, 38 Mich.
390. It was held in Sawj^er v. Joslin, 20 Vt. 172, that the right
ceases whenever the goods, in pursuance of the original desti-
nation given them by the consignor, have come into either the
actual or constructive j)OSsession of the consignee ; Becker v.
Hallgarten, 86 N. Y. 167. A delivery of the goods to forward-
ing agents, employed by the vendee to remain with them until
the vendee should send orders respecting their destination, was,
in legal effect, a delivery to the vendee, the transitus complete,
and the right to stop the goods was terminated. But if the
goods, at the time they were delivered to the forwarding agents,
were destined to a foreign port, under an assignment already
made, and the goods were to be forwarded to their destination
without any further orders from the vendee, the trmmtus was
not ended when the goods came into the possession of the for-
warding agents, but continued until the goods reached their
final destination ; Biggs v. Barry, 2 Curtis 262 ; Cobeen v.
Campbell, 30 Penn. 254.

Goods were sold by marks and numbers, lying in the vendor's
warehouse on six months' credit ; and it was a part of the con-
sideration of the purchase that they might lie, rent free, in the
warehouse, at the option of the vendee and for his benefit, till
the vendor should want the room. Seld^ the delivery was com-
plete, and the right of stoppage at an end ; Barrett v. Goddard,
3 Mason 107. See also Bradford v. Morbuy, 12 Ala. 520.

The right of stopping goods shipped on the credit and at the
risk of the consignee continues until they come into his actual
possession at the end of the voyage, unless he shall have sold
them previously hond fide, and indorsed the bills of lading to
the purchaser ; Stubbs v. Lund, uhi supra ; Ilsley v. Stubbs,
9 Mass. 71-4, 16 Pick. 467; Arnold v. Delano, 4 Cush. 33, 8
Cranch 418 ; Grant v. Hill, 4 Gray 361 ; Rowly v. Bigelow, uhi
supra. See Bolin v. Huffnagle, 1 Rawle (Pa.) 9 ; Castanola v.
Missouri Pacific R. Co., 24 Fed. Rep. 267. The same rule, says
Ch. J. Parsons, in Stubbs v. Lund, must govern, if the con-
signee be the shipowner sed qucere. See Abbott on Shipping,
5 ed. 394, and Rand's note (^), 9 Mass. pp. 71-2, 13 Me. 93.

1112 i,I(K1;ai:i:<>\v v. mason.

Goods slii[)pe(l oil l)()iu<l ;i vcssrl ;irt; still iii tntimitn iillfi llio
arrival of the vt-ssel at tliu port of (K'stiiiation, until tlu-y aro
taken possession of by (»r on l)(.'li;ilf ot" the assij^nec ; Nayler v.
Dennie, S Pick. V.^H.

An attiiehin«-iit of f^Mods so situated as the piopi-rty of the
-consignee, will not dihat the consignor's ri<^ht to stop theiii;
Ma.son v. Wilson, 43 Ark. 172; Suymoiir r. Newton, lOo .Ma.ss.
272; C. H. & Q. U. Co. r. Painter, 15 Neh. 394. Hut if the
vendor attaches the ^'oods while in transit, as the property of
the vendee, his ri^ht of stop[)age in trnnnitu ceases; Woodruff
V. Noyes, 15 Conn. 335; Hiller v. KUiott, 45 X. .1. L. 5»;4, »30
Tex. 373; Inslee r. Lane, 57 N. II. 454; Mississippi Mills /•.
Union iV Planters' liank, 1» Lee (Tenn.) 735; Slierinan v.
Rugee, 55 Wis. 34t5.

The vendee, actinj^ in <,'ood faith, may intercept the ^oods
bef(>re they reach their destination, and, hy taking actual pos-
session of them, defeat the vendor's lien; Mi»hr i\ B. ♦S: .\. U.
Co., 10() Mass. 72. Rut the intereejition must he in g««)d faith;
Poole V. Houston, tVc., R. Co., 58 Tex. 134. See Brooke Iron
Co. r. <)'P>ritii, 135 Mass. 447. If the vendee intercept the
goods on their passage to him, and take possession as owner,
the fnoisifiis is at an end; 2 Kent Com. 547; Jordan /•. .lames,
5 II. (Ohio) 8S; Wood r. Yeatmaii, 15 P.. M..ii. 27<i. p.ut a
(U'lnaiid for the goods ina<le hy the vt-ndee upon the carrier,
with which he does not com[)ly, does not terminate the vendor's
right of stoppage ; Jackson r. Nichol, 5 Bing. (N. C.) 508.

A common carrier, who surrendi'rs the possession of goods,
entrusted to him for carriage, to an ollicer who attaches upon a
legal process against the consignee, is not liable to the consignor,
after notice to liim to hold the goods, for not notifying the offi-
cer or taking steps to stop the gootls m trauHitu ; French v.
Star Union Trans. Co., 134 Mass. 285. But the carrier is liable
if he delivers the goods to an officer who attiiches them on a
Avrit against a person not the owner ; Edwards v. White Line
Transit Co., 104 Mass. 159. The stopping of goods in transitu
does not rescind the contract of sale ; Grant v. Mill, 4 Gray
361 ; Newhall v. Vargas, ubi supra ; Rowly v. Bigelow, ubi supra,
16 Pick. 475 ; Chandler v. Fuller, 10 Texas 2 ; Rogers v.
Thomas, 20 Conn. 53 ; Babcock v. Bonnell, 80 N. Y. 244 ; Pot-
ter's App., 45 Penn. 151.

The vendor does not take possession of the goods as his own,

LTCKBARROW V. MASO]?f. 1113

but as those of the vendee and upon due notice and time he
may resell the goods and apjjly the proceeds of the sale in part
payment and sue the vendee for the balance; 2 Kent Com.
541, 15 Me. 314 ; Howatt v. Davis, 5 Munf . (Va.) 34 ; House
V. Judson, 4 Dana (Ky.) 10.

If the consignee dies, his personal representative, may, on the
arrival of the goods, take possession and so terminate the tran-
sit; Conyers v. Ennis, 2 Mason 236.

The consignor's right of stoppage in transitu is ]iot defeated
by the assignee's accepting bills for the value of the goods ; Bell
V. Moss, 5 Wharton (Pa.) 189 ; Donath v. Broomhead, 7 Barr.
310; Newhall v. Vargas, ubi supra, see 9 Mass. 65. Nor is the
consignor's right defeated by the payment of part of the price,
by the assignee. See Peters v. Ballister, 3 Pick. 495. But
where goods are sold boiid fide while in transit, by assignment
of tlie bill of lading, the right of the original vendor to stop
the goods in transit ceases; Walter v. Ross, 2 Wash. 283 ; Lee
V. Kimball, 45 Me. 172 ; Haggerty v. Palmer, 6 Johns. 437 ;
Boyd V. Mosely, 2 Swan (Tenn.) 661. See Andenreid v. Ran-
dall, 3 Cliff. 99. But an assignment by the vendee to pay his
debts will not affect the right of stoppage in transitu ; Harris
V. Hart, 6 Duer (N. Y.) 606.

It is not necessary that the vendor should obtain actual pos-
session of the goods, but is sufficient if he give notice of his
claim to the person in whose custody they are during the tran-
sit ; Mottram v. Heyer, 5 Denio 629 ; Bell v. Moss, uhi supra.

In Grant v. Hill, 4 Gray 367, Ch. J. Shaw says : " What
amounts to a stoppage in transitu, in a particular case, may be
a question of difificulty. But if the vendee finding he shall not
be able to pay for the goods, gives notice thereof to the vendor,
and leaves the goods in possession of any person, when they
arrive, for the use of the vendor, and the vendor on such notice
assents to it, that is a good stoppage m transitu.

The question as to when the transit begins and ends is con-
sidered in the cases ; Thompson v. B. & O. R. Co., 28 Mo. 396 ;
Mohr V. B. & A. R. Co., 106 Mass. 67; Brooke Iron Co. v.
O'Brien, 135 Mass. 442; Hall v. Deamond, 63 N. H. 565;
Durgy Cement & Umber Co. v. O'Brien, 123 Mass. 14 ; Harris
V. Pratt, 17 N. Y. 249; Muskegan Booming Co. v. Underbill,
43 Mich. 629 ; Bunn v. Valley Lumber Co., 51 Wis. 376. The
right of stoppage ceases when the entry of goods in a bonded

1111 LU.'KilAKUoW V. MASmN.

warehouse is peifiMtc'd ; (';irt\\ liglit v. Wilnie r<lin^, 24 N. V.
521; Fnv/AT r. llillianl, 2 Str.)l)h. (S. C.) 309. See Hoover t-.
Tihl)cts, U Wis. Tl>; Parker r. Mclver, 1 Desau. (S. C.) 274;
(iilfonl r. Sinitli, 30 Vt. 48; Bluckinaii r. Pierce, 23 Cal. 508;
At^uirre r. Piii iiielec, 22 Conn. 473. Hut if llie ^oods U* in u
publir store, awaitiui,' the comj>letiou i»f the entry, the con-
signor's ri<;ht to stop tluMu in transit ct)ntinues; Westrrn Trans.
Co. V. Ilawley, 1 Daly (N. V.) 327. See Clapp v. Peck, 55 Iowa
270. If the transit is once at an end, it cannot commence
again, l)ecauso the gooiLs are sent to a new destinatiiui ; Pattin-
ger V. Ileckslier, 2 Cirant (Pa.) 309.

Where tlie consignee agreed with the carrier to set the goods
aside in its depot to Ixj sold, to pay })ast <lue freights and pay
the h;dance to the assignee, it was held this was not su(;h a
delivery to the assignee jvs to «lefi'at the Ci)nsignor's rigiit of
stop[)age in frannitu ; Macon vV \\'r>trni K. !{. r. Meador, 65
Ga. 705. .Vfter goods have l>een sold hy the vendee in good
faith and hy llu- carrier delivered to his vendee, tlie original
vendor's right of stoppage in (rdHMitu is gone. United States
Wind Engine, »S:c., Co. v. Oliver, 1»> Xeb. «il2.

Goods may be stopped in tranxitu after their arrival at the
carrier's warehouse, and there awaiting payment of the freight;
Symns v. Schotten, 35 Kan. 310: ll.uiliug Paper Co. v. Allen,
65 Wis. 576.

By, and against whom, and how the right may be exercised
is discussed in the following cases; Newhall v. Vargas, uhi
supra: Seymour v. Newton, 105 Mass. 275; 5 Daly 476; Mul-
len V. Pander, r^b N. Y. 325; Hays v. Monille, 14 Penn. 48;
Gustine v. Phillips, 38 Mich. 674 ; ' ReynokLs v. B. & M. R. Co.,
43 N. II. 324; Roche v. Donovan, 13 Kans. 251.

A creditor of an insolvent vendee cannot, by paying the
freight on the goods and attaching them, defeat the vendor's
right to stop them in transitu ; Greve v. Dunham, 60 Iowa 108.
When one through his agent sells goods to another, and they
are shipped to the purchaser, the agent has no right to stop the
goods in transitu, because his principal owes him for money
advanced in the purchase of the gootls; Gwyn v. Richmond «&
Danville R. Co., 85 N. C. 429.

MASTER V. MILLER.

TRINITY. — 3 GEO. 3, K. B. & CAM. SCACO.
[reported 4 T. R. 320 and 2 hen. bl. 140.]

An unautJiorized alteration of the date of a hill of exchange^
after acceptance, whereby the payment would he accelerated,
avoids the instrument ; and no action can he afterwards hrought
upon it, even by an innocent holder for a valuable considera-
tion (a).

[But see now the Bills of Exchange Act, 1882, s. 64, post in
notis.'\

The first count in this declaration was in the usual form, by
the indorsees of a bill of exchange against the acceptor; it
stated that Peel and Co., on the 20th of March, 1788, drew a
bill for 974Z. 10s. on the defendant, payable three months after
■date to Wilkinson and Cooke, who indorsed to the plaintiffs.
The second count stated the bill to have been drawn on the
26th of March. There were also four other counts : for money
paid, laid out, and expended ; money lent and advanced ; money
had and received ; and on an account stated. The defendant
j)leaded the general issue ; on the trial of which a special ver-
dict was found.

It stated that Peel and Co., on the 26th March, 1788, drew
their bill on the defendant, payable three months after date to
Wilkinson and Cooke, for 974?. 10s., "which said bill of ex-
change, made by the said Peel and Co., as the same hath been
altered, accepted, and written upon, as hereinafter mentioned,
is now produced, and read in evidence to the said jurors, and
is now expressed in the words and figures following; to

(a) See Hntchins v. Scott, 2 M. & of the pei'son producing it was held
W. 809, where an agreement whicli admissible in evidence for some pur-
had been altered while in the custody poses.

1 1 If, MASTKK \ . MILl.KK.

wit, '.Jiiuf -JOrcl, *.»T4/. lOx., Mtnrh,»t,i\ Miiich 20, 17H8, three
months after date [Kiy to the order of Messi-s. Wilkiiwoii and
Cooke, 1>T4/. l().y., received, as advised, Peel, Vales, and Co.
To Mr. Cha. Miller, C. M. 23rd June, 1T«S.' That IVel and
Co. delivered the said bill U) Wilkinson and Cooke, whieh the
<lefendant afterwards and Injfore the alteration of the hill here-
inafter nientione<l aeeepted, that Wilkinson and C<M»ke after-
wards indorsed the sjiid hill to the jdaintitTs for a valnahle
consideration In-fon' that time given, and paid hy them to
Wilkinson and Co(»ke for the same. That the said hill of ex-
chanrje, at the time of making thereof and at the time of the
acceptance, and when it came to the hands of Wilkinson and
Cooke, as aforesaid, hore date on the 20th day of March, 17H8,
the day of making the same ; and that after it so came to and
whilst it remained in the hands of Wilkinson and Co«)ki', the
said date of the said hill, witlioiit the authority or privity of
defendant, was altered hy some person or persons to the juroi-s
aforesaid unknown, from the 20th day of .Maich, 1788, to the
20th day of Manh, 17ss. That the wc.rds -.luac 2:'.nl,' at the
top of the l)ill. Were there inserted to mark that it would he-
come due and payable on the 23rd of June next after the date;
and that the alteration iiricinlK'fore mentioned, and the hlot
upon the date of the hill of exchange, now produced and read
in evidence, were on the hill of exchange when it was carried
to and came into the hands and possession of the plaintiffs.
That the bill of exchange was on the 23rd of June, and also
on the 28th of June, 1788, presented to the defendant for
payment; on each of which days respectively he refused to
pay." The verdict also stated that the bill so produced to
the jury and read in evidence was the same bill upon which
tlie [)lainliiYs declared, tVc.

This case was argued in Hilar}- Term last, by Wood ior the
plaintiffs, and Mlngaii for the defendant ; and again on this day
by Chamhrc for the plaintiffs, and Erxkine. for the defendant.

For the plaintiffs it was contended that they were entitled,
notwithstanding the alteration in the bill of exchange, to re-
cover, according to the truth of the case, which is set forth in
the second count of the declaration, namely, upon a bill dated
the 26th March ; wliicli the special verdict finds was in point of
fact accepted by the defendant. More especially as it is clear
that the plaintiffs are holders for a valuable consideration, and

MASTER V. MILLER. 1117

had no concern whatever in the fraud that was meditated, sup-
posing any such appeared. The only ground of objection which
can be suggested is upon the rule of law relative to deeds, by
which they are absolutely avoided, if altered even by a stranger
in any material part, and upon a supposed analogy between
those instruments and bills of exchange ; but upon investigating
the grounds on which the rule stands as applied to deeds, it will
be found altogether inapplicable to bills : and if that be shown,
the objection founded on the supposed analogy between them
must fall with it. The general rule respecting deeds is laid
down in Pir/ofs Case («), where most of the authorities are
collected; from thence it appears, that if a deed be altered in a
material point, even by a stranger, without the privity of the
obligee, it is therel^y avoided ; and if the alteration be made by
the obligee, or with his privity, even in an immaterial part, it
will also avoid the deed. Now that is confined merely to the
case of deeds, and does not in the terms or principle of it apply
to any other instruments not executed with the same solemnity.
There are many forms requisite to the validity of a deed, which
were originally of great imj^ortance to mark the solemnity and
notoriety of the transaction ; and on that account the grantees
always were, and still are, entitled to many privileges over the
holders of other instruments. It was therefore reasonable
enough that the party in Avhose possession it Avas lodged, should,
on account of its superior authenticity, be bound to preserve it
entire with the strictest attention, and at the peril of losing the
benefit of it in the case of any material alteration even by a
stranger ; and that he is the better enabled to do from the
nature of the instrument itself, which, not being of a negotiable
nature, is not likely to meet with any mutilation, unless through
the fraud or negligence of the owner ; whereas bills of exchange
are negotiable instruments, and are perpetually liable to acci-
dents in the course of changing hands, from the inadvertence of
those by whom they are negotiated, without any possibility of
their being discovered by innocent indorsees, who are ignorant
of the form in which they were originall}- drawn or accepted;
and the present is a strong instance of that ; for the plaintiffs
cannot be said to be guilty of negligence in not inquiring how
the blot came on the bill, which mere accident might have oc-
casioned. That the same reasons upon which the decisions of

(rt) 11 Co. 27.

1118 MASTKIC V. MILLKU.

thf t(»ints uiMm (IcimIs hiivt* Ihjoii grouiuled, will not HU|>iK)rt
such jiitl^mt'iits upon l)ill.s, will U'st iip|M?ar by refurrinj^ to ihu
authoritiL's tlit'instlvL's. When a deed is jjleadeil, there mu.si lie
a prot'ert in curiam («<), unless, a.s in It*'<i>l v. lirookmnn {^f>)^ it
be lost or destroyed by accident, which must liowever l>e stated
in the [)leadin;^'s. Tlu! reast>n of which is, that anciently the
deed was actually brouj^ht into court f«)r the purpose of ins{H;c-
tion ; and if, as is said in 10 Co. 02, b, the judges f«»und that it
liad l)een rust-d or interlined in any material part, they adjudged
it to 1h! void. Now, as that wjis the reason why a deed Wiw
rcipiired to Ik; [)leaded with a /'/^>/Vr^ aiul as it never was neccs-
sarv to njak«' a pro/erf of a bill of exchange in plea<ling, it fur-
nishes a strong argument that the reason applied solely to the
case of deeds. So deeds, in which were erasures, were held
void, because they appeared on the face of them to Ih) suspi-
cious, 1:5 Vin. .Vbr. tit. Faits, 'M, 3S; IJro. Abr. Faits, pi. 11, re-
ferring to 44 VAw. -l, c. 42. X«)r couhl the supposition of fraud
have been the ground <»n which that rule wjis founded with re-
spect to deeds; for in .Moore, 35, pi. 11 ♦>, a ileed which had l)een
rasid was held void, although the party himself who uignlv it
had made the erasure ; which was ptrmitting a party t<F«hvail
himsi'lf of his own fraiid : but it is impossible to contend that
the rule can l)c carried to the same extent as to bills; nor is it
denied i)ut that if the l>lot here had been made by the acceptor
himself, he would still have been bound. In Keilw. lt>2, it is
said that if A. be lM)und to 15. in 2U/. and IJ. rase out 10/. all
the bond is void, although it is f()r the advantage of the obligor;
and even where an alteration in a deed was made by the con-
sent of both the jjartics, still it was helil to avoid it, 2 Rol. Abr.
29, letter l\, pi. 5 (Lord Kmi/ou observed that there had been
decisions to the contrary since). Fraud could not be the [)rin-
ciple on which those cases were determined:- whereas it is the
only })rinci[)le on which the rule contended for can be hehl to
extend to bills of exchange, but which is rebutted in the pres-
ent case by the facts found in the special verdict. According
to the same strictness, where a mere mistake was corrected in a
deed, and not known by whom, it was held to avoid it, 2 Kol.
Abr. 29, pi. 6 ; and it does not abate the force of the argument
that the law is relaxed in these respects, even as to deeds, for

(rt) [Not so now; C. L. P. Act, 1852, s. 55; St. Law Rev. Act, 1883, s. 6.]
(6) 3 T. R. 151.

MASTER V. MILLER. 1119

the question still remains, whether at any time bills of exchange
were construed with the same rigour as deeds ? The principle
upon which all these cases relative to deeds were founded was,
that nothing could work any alteration in a deed, except an-
other deed of equal authenticity; and as the party who had
possession of the deed was Iwund to keep it securely, it might
well be presumed that any material alteration even by a stran-
ger was with his connivance, or at least through his culpable
neo-lect. In many of the cases upon the alteration of deeds, the
form of the issue has weighed with the court ; as in 1 Rol. Rep.
40, which is also cited in Pigot's Case, 11 Co. 27, and 3Iichael v.
ScocJcwith, Cro. El. 120, in both which cases the alteration was
after plea pleaded ; and on that ground the court held it was
still to be considered as the deed of the party on no7i est factum.
Now the form of the issue in actions upon deeds and those
upon bills is very different ; in the one case, the issue simply is,
whether it is the deed of the i)arty which goes to the time of the
plea pleaded ? as appears from the case before cited, and from 5
Co. 119, b, and Dy. 59 ; but here the issue is, whether the defend-
ant promised at the time of the acceptance, to pay the conteiits ?
The form of the issue is upon his promise, arising by implication
of law from the act of acceptance, which is found as a fact by the
special verdict agreeable to the bill declared on in the second
count: and in no instance, where an agreement is proved
merely as evidence of a promise, is the party precluded from
showing the truth of the case. Not only therefore the forms
of pleading are different in the two cases, but the decisions
which have been made upon deeds, from whence the rule
contended for as to erasures and alterations is extracted, are
altogether inai^plicable to bills. The reasons for such rigorous
strictness in the one case, do not exist in the other. On the
contrary, all the cases upon bills have proceeded upon the
most liberal and equitable principles with respect to innocent
holders for a valuable consideration. The case of 3Il7iet v.
G-ihson (a) goes much farther than the present : for there this
Court, and afterwards the House of Lords, held that it was
competent to inquire into circumstances extraneous to the
bill, in order to arrive at the truth of the transaction between
the parties ; although such circumstances operated to establish
a different contract from that which appeared upon the face
(a) 3 T. R. 481, in B. R., and 1 H. Bl. r,G9, in Dom. Proc.

llliO MASTKi: V. MILLKK.

of tilt' bill itseU ; whcreus the uviclonte given in this ciise, und
the facts found by the special verdict, are in onler to sh«»\v
what the bill really was ; which it is competent for these par-
ties to do a<^ainst whom no fraud can be imputed, if any exist.
If tlic blot liiid fallen on the j>aper by nieie accidt-nt, it cannot
be j)ittrii(lcd that it Would have avoided the bill, non constat
upon this linding that it did not so hapj)en. ICven if felony
were i-ommittcil by a third person, throu<;h whose hands the
])ill passed, althoiit^di that party c(»uld not recover tipon it
himself, yet his crime shall not alYett an innocent party, to
Avhom the bill is indorsed or delivered for a valuable consider-
ation. In Mil/rr V. Jiact' (d), where a banknote lia<l Ik'cu stolen,
and attcrwards j)assed bond fi>lt' to the plaintiff, it was held
that he mi<jht recover it in trovfr aijainst the person who had
stopped it for the real owner. And the same point was held
in Peacock v. Rhoch'^ (A), where the bill was payalile to order.
Again, in J^rice v. Ne<ile (c), it was hehl that an acceptor, who
had jiaid a forgcfl bill to an innocent indorsee, could not re-
cover back the moncv fiom hini. Now if it be no answer- to
an action upon a bill against the acceptor to show that it was
a forgery in its (triginal making by a third })erson*s having
feigned the handwriting of the drawer, still less ought any
subsequent attempt at forgery, even if that had been found
which is not, to weigh against an innocent holder. lint it
would have been imi)ossible to have recovered in any of these
cases if the deed had been forged in any respect, even by
strangers to it ; which shows that these several instruments
cannot be governed by the same rules. And so little have the
forms of bills of exchange and notes been observed, when put
in opposition to the truth of the transaction, that in JIuxhcU v.
Langstaffc ((/) the Court held, in order to get at the justice of
the case, that a person, who had indorsed his name on blank
checks, which he had entrusted to another, was liable to an
indorsee for the sums of which the notes were afterwards
drawn ; and yet the form of pleading supposes the note to
have been a perfect instrument, and drawn before the indorse-
ment. But the case which is most immediately in point to
the present, is that of Price v. Shute, E. 33 Car. 2 in B. R. (e) ;

(a) 1 Burr. 452. (d) Dougl. 514.

(h) Dougl. 633. (c) 2 Moll. c.lO, s. 28.

MASTER V. MILLER. 1121

there a bill was drawn payable the 1st of January ; the person
upon whom it was drawn accepted it to be paid the 1st of
March; the holder, upon the bill's being brought back to him,
perceiving this enlarged acceptance, struck out the 1st of
March, and put in the 1st of January ; and then sent the bill
to be paid, which the acceptor refused; whereupon the payee
struck out the 1st of January, and put in the 1st of March
again ; and in an action brought on this bill, the question was,
whether these alterations did not destroy it ; and it was ruled
they did not. This case therefore has settled the doubt ; and
having never been impeached, but on the contrary recognised,
as far as general opinion goes, by having them inserted in
every subsequent treatise upon the subject, it seems to have
been acted on ever since. And it would be highly mischievous
if the law were otherwise : for however negligent the owner of
a deed may be supposed to be, who lets it out of his possession,
the holder of a bill of exchange is by the ordinary course of
such transactions obliged to trust it, even in the hands of
those whose interest it is to avail themselves of this sort of
objection. For it is most usual for the bill to be left for
acceptance, and afterwards for payment, in the hands of the
acceptor, who may be tempted to put such a blot on the date
as may not be observed at the time, through the confidence
of the parties. But even if the alteration should be con-
sidered as having destroyed the bill, why may not evidence
be given of its contents, upon the same principle as governed
the case of Read v. Brookman (ci) ? where it was held that
l^leading that a deed is lost by time and accident, supersedes
the necessity of a profert. But at any rate the plaintiffs are
entitled to recover on the general counts for money paid, and
money had and received, on the authority of Tatloek v. Har-
7-is (J) ; for though it is not expressly stated that so much
money was received by the defendant, yet that is a necessary
inference from the fact of acceptance Avliich is found.

For the defendant it was contended, that the broad principle
of law was, that any alteration of a written instrument in a
material part thereof, avoided such instrument ; and that the
rule was not merely confined to deeds, though it happened that
the illustration of it was to be found among the old cases upon
deeds only because formerly most written undertakings and

(a) 3 T. R. 15L (h) 3 T. R. 174.

IIl'J MASTKK \. MlLLKIt.

()l>li^Mtii»n.s wiMf in tluit form. This |triiiii|»l<« o( law whm
ftmiulfd in suuml sense ; it wum ciileiihited to prevent fraud,
and deter men from tampering with written seeuritiuH: and it
would 1m' direetly repu^^iumt to the |K»li« y '"f sueh a law to
permit the holder of a hill to attempt ii fraud of this kind with
impunity ; which w<ud<l Ik* the ejuse, if, after U-in^f detei'ted in
the altemj»t, he were not to l»e in a wiu-se situati<»n than lie wa8
hefore. If any difference were to l>e made l)etween hills of
exchan^^e and deeds, it shouhl rather l>e to enfon-e the rule
with greater strictness as to tin- former : for it would Ik; strange
that hecause they were more op«'n to fraud from the circum-
stance of passing through fnany hands, the law should relax
and open a wider door to it than in the case of deeds where
fraud was not so likely to Ik' practised. The principle laid
down in Pii/<>t'M (Utnf (//) is n<»t disputed ius applied to deeds.
Hut the first answer attempted to Ik* j^iven is, that the rule as
to deeds is nui <fviurix, :uid does m<»1 cxttiid toother instruments
of an inferior nature, U'caust- it arises froni the solenui sanction
attcndiiit,' the I'Xciution of instruments umler seal. As to this,
it is sulliciciit to say tiiat no such reason is sujjijested in any of
the hooks; i)Ut the rule stands upon the hroad j,'roun<l of policy,
which applies at least as stronj^ly to hills as to deeils, for the
reason alM)ve given. Then it is said that there i.s a material
distinction hetween the several issues in the two cases. IJut
the difference is more in words than in sense ; the suJwtance
of the issue in both cases is, whether in point of law the party
be lialilc to answer upon the instrument declared on? and
therefore any matter which either avoids it ah initio, or goes
in discharii^e of it, may he shown as much in the one case as in
the other. Upon fioti est factum the question is, whether in law
the deed produced in evidence he the deed of the party? so on
non ai<sunij>s(t the question is, whether the hill given in evi-
dence be in point of law the bill acce[)ted by the defendant?
because the promise only arises by implication of law upon
proof of the acceptance of the identical bill accepted, and
given in evidence. Now neither of the counts in the declara-
tion was proved by the facts found. For in the first count
the bill is dated the 20th of March ; but as there is no evidence
of the defendant's having accepted such a bill, of course the
plaintiffs are not entitled to recover on that count. Neither

(o) 11 Co. 27.

MASTER V. MILLER. 112S

can they recover on the second, because though it is found
that he accepted a bill dated the 26th of March, as there stated,
yet inasmuch as the bill stated to have been produced in evi-
dence to the jury is dated the 20th, of course the evidence did
not support the count. With respect to the cases cited of bills
of exchange having been always construed by the most liberal
principles, and particularly in the case of Mlnet v. Grihson^ the
same answer may be given to all of them, which is, that so far
from the original contracts having been attempted to be altered,
all those actions were brought in order to enforce the observ-
ance of them in their genuine meaning against the party who,
in the latter case particularly, endeavoured by a trick to evade
the contract : whereas here the contract has been substantially
altered by the parties who endeavoured to enforce it; or at
least by those whom they represent, and from whom they de-
rive title. Then the case in Molloy^ of Price v. Shute, is chiefly
relied on, by the plaintiffs ; to which several answers may be
given. First, the authenticity of it may be questioned ; for it
is not to be found in any reports, although there are several
contemporaneous reporters of that period. In the next place,
the bill, as originally drawn, was not altered upon the face of
it ; and therefore, as against all other persons at least than the
acceptor, it might still be enforced. But principally it does
not appear but that the action was brought against the drawer,
who, as the acceptor had not accepted it accorcUng to the tenor
of the bill, was clearly liable ; as the payee was not bound to
abide by the enlarged acceptance, but might consider it as no
acceptance at all. Then if this bill be void for this fraud, no
evidence could be given to prove its contents, as in the case of
a deed lost ; because in that there is no fraud. But even if
any other evidence might have been given, it is sufficient to
say that in this case there was none. And as to the common
counts, if the general principle of law contended for applies
to bills of exchange, it will prevent the plaintiffs from recover-
ing m any other shape. Besides which, it is not stated that the
defendant has received any consideration ; upon which ground
the case of Tatlock v. Harris was decided.

In reply it was urged, that the issue was not whether the
defendant had accepted this bill in the state in which it was
shown to the jury, but whether he had promised to pay, in
consequence of having accepted a bill dated the 26th March,

lll'l MASIKl: \. Mll.l.Kl:.

(liiiwn by? ifcr. ; ;iii(l tliosr lads lu'liitr louiul, llu- promise iicr-
L's.sarily arises. It is said that the policy ()t' th»; hiw will extend
the same rule to the avoidance of hills of exchanjife which have
Ix'cM altered as to deeds ; Injcaiise there is even greater reason to
guaid jigainst fraudulent alterations in the former than in the
latter case. To which it may he answered that the foundation
of tin- nilr fails in this ease; for no fraud is fouinl, and none can
he picsuMicd: and it is admitte<l, that if tin- hlot had hecn made
hv accident, it would not have avoided the hill; and nothini,' is
stated tn slinw that it was not done l»y aciidcnt. Hi-sidcs, the
policy of the law is equally urLr<'nt in favour of the plaint ilTs,
it heinpf etpially politic to compel a performance of honest en-
gagements. Here the defendant is only i-e(|uii-e(l ;n do that
which in fact and in law he has promised to do. And if he Ihj
not liahle on this contract, he will he [)roteeted in withholding
pavment of that money which he has received, and whiih hy
the nature of his engagement he uiulertook to re[)ay. No an-
swer has heen givi'ii to the ease cited from Mnllnii : for thojigh
the case is not n'i)ortcd in any other hook, it l)ears every mark
of auihenticity, hy noting the names of the [)arties, the court in
which it was determined, and the time of the decision : and it
has been adopted by subseiiiient writers on the same subject.
Again, the alteration there was full as important as this, for it
etpially tended to accelerate the day of payment ; antl, lastly, it
is not denied but that the action might have been maintained on
the bill against any other person than the acceptor ; which is an
a<lniissi()n that the policy of the law does not attach so as to
avoid suih instruments upon any alteration, for otherwise it
would have avoided the bill against all j)arties.

Lord Kin//on, ('. ']. — The question is not whether or not
another action may not be framed to give the plaintiffs some
remedy, but whether this action can be sustained by these
parties on this instrument? — for the instrument is the only
means by which they cm derive a right of action. The right
of action which subsisted in favour of "Wilkinson and Cooke,
could not be transferred to the phiintiffs in any other mode
than this, inasmuch as a chose in action is not assignable at law.
No case, it is true, has been cited either on one side or the
other, except that in Molloy^ of which I shall take notice here-
after, that decides the question before us in the identical case
of a bill of exchange. But cases and iirinoijilcs have been cited

MASTER V. MILLER. 1125

at the bar, which, in point of law, as well as policy, ought to
be applied to this case. That the alteration in this instrument
would have avoided it, if it had been a deed, no person can
doubt. And why, in point of policy, would it have had that
effect in a deed ? Because no man shall he permitted to take the
chayiee of committing a fraud ivithout running any risk of losing
by the events u-hen it is detected. At the time when the casi^es
cited, of deeds, were determined, forgery was only a misde-
meanour : now the punishment of the law miglit well have been
considered as too little, unless the deed also were avoided ; and
therefore the penalty for committing such an offence was com-
pounded of those two circumstances, the punishment for the
misdemeanour, and the avoidance of the deed. And though
the punishment has been since increased, the principle still re-
mains the same. I lay out of my consideration all the cases
where the alteration was made by accident : for here it is stated
that this alteration was made while the bill was in the posses-
sion of Wilkinson and Cooke, who were then entitled to the
amount of it ; and from whom the plaintiffs derive title ; and it
was for their advantage (whether more or less is immaterial
here) to accelerate the day of payment, which in this commer-
cial country is of the utmost importance. The cases cited,
which were of all deeds, were decisions which applied to and
embraced the simplicity of all. the transactions at that time;
for at that time almost all written engagements were by deed
only. Therefore those decisions, which were indeed confined to
deeds, applied to the then state of affairs : but they established
this principle, that all written instruments which were altered
or erased should be thereby avoided. Then let us see whether
the policy of the law, and some later cases, do not extend this
doctrine farther than to the case of deeds. It is of the greatest
importance that these instruments, which are circulated through-
out Europe, should be kept with the utmost purity, and that
the sanctions to preserve them from fraud should not be les-
sened. It was doubted so lately as in the reign of George the
First, in Ward's Case («), whether forgery could be committed
in any instrument less than a deed, or other instrument of the
like authentic nature ; and it might equally have been decided
there that, as none of the preceding determinations extended
to that case, the policy of the law should not be extended to

(a) 2 Str. 747, and 2 Lord Raym. 1461.

Ulit) MA>n:i: \. Mll.l.KK.

it. Hut it WHS tlitii' licltl liiiit the piimiplo exteuth-tl to otlu-r
iiistiiuuL'iits us well as to dct'ds, iind that the law went an far
us the polity. It is on the sumu reusouin^ that I have foriiietl
my opinion in the present eiusu. The eiuse cited fri>ni Molloi/,
indeed, at lirst made u different impression on my mind: hut on
luokiiiir over it with ^aeat attention, I think it is n<>t applicahle
to tliis ease. No alterution was there made t»n the bill itself;
hut the party tck whiim it was directed, aeeepted it iis payahle
at a different time, and afterwards the payee struck out the
enlarged acceptance; and on tlic acceptor refusing to pay, it is
said that un uction wus maintained on tlie hill. lUit it does not
suy uguinst whom the uction was iirought ; and it could not have
l)een brought against the uceeptor, whose uceeptunce wasstruik
out by the party himself who l)rought the uction. Taking that
cjise in the words of it, " thut the ulterutions did not <K'stroy
the i)ill," it does not affect this case: not un iotu «>f the bill itself
wus ultered ; but (»n the person to whom the liill Wius tlirected
refusing to accept the bill as it was originally drawn, the holder
resorted to the drawer. Then it was contended that no fraud
was iiitnuKMl in iliis <asc ; at least that none is found; but I
think thai, if it had been done by accident, that should have
been found, to excuse the jjarty, as in one of the cases where
the seal of the deed was torn ofT by un infant. With respect
to the argument drawn from the form of the plea, it goes the
length of suying, thut u defendant is liai>le, on non asaumjmif,
if at any time he has made a promise, notwithstanding u suljse-
quent payment : but the (juestion is, whether or not the defend-
ant promised in the form stated in the dcclarati(jn ? and the
substance of that plea is, that according to that form he is not
bound by law to pay. On the whole, therefore, I am of opinion
that this falsification of the instrument has avoided it ; and that,
whatever other remedy the plaintiffs may have, they cannot
recover on this bill of exchange.

Ashurstj J. — It seems admitted that, if this had been a
deed, the alteration would have vitiated it. Now I cannot see
any reason why the principle on which a deed would have been
avoided should not extend to the case of a bill of exchange.
All written contracts, whether by deed or not, are intended
to be standing evidence against the parties entering into them.
There is no magic in parchment or in wax ; and a bill of ex-
change, though not a deed, is evidence of a contract as much

MASTER V. MILLER. 1127

as a deed; and the principle to be extracted from the cases
cited is, that any alteration avoids the contract. If indeed the
plaintiffs, who are innocent holders of this bill, have been de-
frauded of their money, they may recover it back in another
form of action : but I think they cannot recover upon this
instrument, which I consider to be a nullity. It is found by
the verdict that the alteration was made while the bill was in
possession of Wilkinson and Cooke ; and it certainly was for
their advantage, because it accelerated the day of payment.
Now, upon these facts, the jury would perhaps have been war-
ranted in finding that the alteration was made by them : at all
events, it was their business to preserve the bill without any
alteration. If Wilkinson and Cooke had brought this action
they clearly could not have recovered, because they must
suffer for any alteration of the bill while it was in their cus-
tody : then, if the objection would have prevailed in an action
brought by them, it must also hold with regard to the plaintiffs
who derive' title under them. For whenever a party takes a
bill under such suspicious circumstances appearing on the face
of it, it is his duty to inquire how the alteration was made ; he
takes it at his risk, and must take it subject to the same objec-
tion as lay against the party from whom he received it. Upon
the whole, there seems to be no difference between deeds and
bills of exchange in this respect in favour of the latter : but, on
the contrary, if there be any difference, the objection ought to
prevail with greater force in the latter than in the former ; for
it is more particularl}^ necessary that bills of exchange, which
are daily circulated from hand to hand, should be preserved
with greater purity than deeds which do not pass in circulation.
It would be extremely dangerous to permit the party to re-
cover on a bill as it was originally drawn, after an attempt to
commit a fraud, by accelerating the time of payment. For
these reasons, therefore, I concur in opinion with my Lord.

Bxller, J. — In a case circumstanced as the present is, in
which it is apparent, as found, and has been proved beyond all
doubt, that the bill of exchange in question was given for a full
and valuable consideration, that the plaintiffs are honest and
innocent holders of it, and that the defendant has the amount
of the bill in his hands, it is astonishing to me that a jury of
merchants should hesitate a moment in finding a verdict gen-
erally for the plaintiffs, more especially as I understand it wa:;

1128 MASTKIC V. MlLLKIl.

left to them by tlu- Chief Justice to read the bill as it un-
doubtedly was drawn, and by that means to put an end to tlie
(|Ut'stion at once. It was iii,ditly so left to the jury by his
Lordship; for that was the furtherance of the justice of the
case, and it tended to prevent cx[>ense, litit,Mtion and drlay,
which are death to trade. That the defendant cannot be suf-
fered to pocket the money for whiih this bill was drawn, or to
enable the drawer to do so, but that sooner or later, provided
a bankruptcy do not intervene, it must be paid, I presume no
man will doubt. The drawer has received the value, tlie plain-
tiffs have paid it, and the defendant has it in his hands. On
this short statement, every one who hears me must anticipate
me in saying tliat the defendant nnist pay it. Nay, if actual
forgery had been conmiitted, the defendant could not be per-
mitted to retain the money: he must not get 1>000/, by the
crime of another; but, in such a case, I agree it would be
dilhcult to sustain the present or any action for the money till
something further had happened than has yet l)een done. The
law, i)roceeding on i)rineiples of public policy, has wisely said
— That where a case amounts to felony, you shall not recover
against the felon in a civil action; but that rule does not ai>-
pear by any printed authority to have been extended lieyond
actions of trespass or tort, in which it is said that the trespass is
merged in the felony. That is a rule of law calculated to bring
offenders to justice. But whether that rule extend to any case
after the offender is brought to justice, or whether at any time
it may be resorted to in an action between persons guilty of no
crime, are (questions upon which I have formed no opinion,
because this case does not require it. Upon this special verdict
there is no foundation for saying that any one has been guilty
of forgery, nor even of a fraud, as it strikes my mind. Fraud
or felony is not to be presumed ; and, unless it be found by the
jurj^ the Court cannot imply it. Minet v. Gibson is a most
decisive authority for that proposition, if any be wanted, and
I do not think there is any foundation for the distinction at-
tempted to be taken between that case and the present. It has
been contended that the party there recovered, because the
nature of the obligation was not altered : but the determina-
tion did not proceed entirely on that ground, but on this, that,
according to the true intent and meaning of the parties, the
bill was intended to be made })iyal)le to bearer: so here the

MASTEll V. MILLER. 1129

plaintiffs do not attempt to enforce the contract according to
the terms of it, but accorcUng to that form by Avhich the de-
fendant originally consented to be bound, as stated in the sec-
ond count. The special verdict finds that Peel and Co., on the
26th of March, 1788, drew a bill of exchange on the defendant
for 947?. 10s., payable to Wilkinson and Co. : which bill as the
same has been altered, accepted, and written upon, is set out in
Jimc verba. Upon iho, fae-sim'de copy of the bill set out in the ver-
dict, there appears to be a blot over the date : and the jury have
thought fit to read it as it now stands, the 20th. I must con-
fess I should never have read it so ; for seeing that there was
something above the figure 0, that is the last reading which I
should have given to it. I should have said on the face of the
bill, this must have been either a 6 or an 8 ; it could not have
been 8, because the is as high as the 2, and therefore it must
be a 6 : but the jury have found no difficulty in saying it was a
6 ; and I will examine presently whether there be any objection
to let it remain as a 6. The verdict further finds that the
defendant, before any alteration of the bill, accepted it; and
Wilkinson and Co. indorsed it to the plaintiffs, who paid a
valuable consideration for it. Then it was stated, that whilst
the bill was in the hands of Wilkinson and Cooke, the date,
without the authority of the defendant, was altered by persons
unknown from the 26th to the 20th of March. They further
find that the words " 23rd of June " were inserted at the top of
the bill, to mark that the bill would then become due ; and that
the alteration and the blot were on the bill when it was de-
livered to the plaintiffs. This is the full substance of the spe-
cial verdict ; and there is neither forgery, felony, nor fraud,
found or supposed by the jury ; we therefore can neither in-
tend nor infer it. The verdict amounts only to saying there is
a blot on the bill, but how it came there we don't know ; and
we beg to ask the Court whether the circumstance of a blot
being on the bill which we cannot account for makes the bill
void. Provided I have accurately stated the question, surely
such a verdict is without precedent. Suppose a child had torn
out a bit of the bill on which the top of the 6 is written, is the
holder of the bill to loose his 974?. ? or is the defendant to get
974?. by such an accident? But to decide whether I have
accurately stated the question in the cause, it is necessary to
examine the words of the special verdict minutely, and by

lloO MA.STKK V. MILLKK.

(U'<jreL*s. 'riif jury hiivo suid tluit tlie hill was ultert'il. Tlie
word " alturod " nmy niise n Hus{iiri()u iiiid iilarin in our inindit ;
hut let not our judj^niunt Ixj run away with liy u word, without
cxiiininiii^ the true sense and meaning of it as it is used in tlit;
place where we find it. How was it altere«l, what was the
alteration, when was it made, and for what imrpose ? Tiie jury
liave said it was altered hy means of pnttinj^ a hlot over the
date: hut hy whom or when that was done we (h)n't know,
fuither than that it was done wliilst the hill was in the posses-
sion of Wilkinson and ('of)ke: hut we «lo not tiinl that it wii»
done for any had purpose, or with any improper view wliatever.
Upon this tindini;, the Court are iniund to say it was done in-
iKxrently. hut tin* jury liave also said, that "June -3r»l " was
inserted at the tnji of the hill to mark when the hill would
Ixuome due. W'lu-n and hy whon> was that <lorje? The jtny
have not said one wortl upon the suhjeet. Was that <lone even
durini,' any j>art of the time whilst the hill was in tiie possession
of Wilkinson and Cooke/ No. It is consistent with the tind-
inpr, that tin- plaintilYs, who are found to Ik* /»"«////</«• holdei-s of
the hill, upon readinjj tlie <iate to Iw the 2Uth, and ealeulatin«j
the time which it had to run from tliat date, put ilown "June
2.h(l" with tlu' most [)erfect innocence. If the hill had U'cn
oriu^inally dati'd on tin; 'JOth, the '2-\rd Jtuie would have In-en
tile true time of payment. Hut admitting that a wroni^ date
had heen i)Ut down, as denotinj^ tlu' time of payment, is tlu-re
any case or authoiity which says that that circumstance shall
rcM(U'r the hill void? Every hill which has U-en negotiated
within the memory of man is marked hy some holder or another
with the day when it will heeome or is su[)posed to heeome due.
That in some sense of the word is an alteration ; for it makes
an addition to the bill which was not there when it was drawn
or accepted. But was it done fraudulently ? The answer is —
It was not, and therefore it is of no avail. So here the jury
have not said it was done fraudulently, and therefore it affords
no objection. When the jury have stated what the alteration
is, and how it was made, namely, by making a blot, and having
fixed no sinister or improper motive for so doing, it is the same
as if they had said only " here is a blot on the bill." Suppose
the jur}' had said in a few words that this bill was drawn, in-
dorsed, and accepted, by the defendant, as the plaintiffs allege,
but here is a blot upon it which makes the date look like the

MASTER V. MILLER. 1131

20th instead of the 26th. The true answer would have been —
Blot out the blot by your own understanding and conviction,
and pronounce your verdict according to the truth of the case.
It was nobly said in another place, (I heard it with pleasure,
and thought it becoming the dignity of the person who pro-
nounced it, and the place in which it was pronounced,) " That
the law is best af plied when it is subservient to the honesty of the
ease. And if there be any rule of law which says you cannot
recover on any instrument but according to the terms of it,
forlorn would be the case of plaintiffs. By the temperate rules
of law we must square our conduct."' The honesty of the
plaintiffs' case has been questioned by no one ; and therefore I
should imagine the wishes of us all would have been in favour
of their claim, j^rovided we are not bound down by some stub-
born rule of law to decide against them. Here again I must
beg leave to resort to Avhat was forcibly said in another place,
upon a similar subject, and which I shall do as nearly in the
words which passed at the time as I can : because they carried
conviction to my mind ; because they contain my exact senti-
ments, and because they are more emphatical than any which I
could substitute in the place of them. " The question (it was
said) is whether there be any rule of law so reluctant that it
will not recede from words to enforce the intention of the
parties. I believe there is no such rule. For half a century
there have been various cases which have left the question of
forgery untouched. If a bill be forged, the acceptor is bound."
Speaking of the case of Stone v. Fr eel and, it was said, " if any
one say that a case is not law^ let him show why it is not so.
Judges can only look to former decisions. This has been a
rule in the commercial world above 20 years." This reasoning
seems to me to be sound and decisive, if it apply to the i^resent
case ; and to prove that it does apply, I need only quote the
case, mentioned at the bar, of Price v. Shute, reported in
Beawes's Lex. Mercat. tit. Bill of Exchange, pi. 222, and Moll.
109. There a bill was payable 1st January, and the person to
whom it was directed accepted it to pay on the 1st of March,
with which the servant returned to his master, who, perceiv-
ing this enlarged acceptance, struck out the 1st of March
and put in the 1st of January, and at that time sent the bill
for payment, which the acceptor refused; whereupon the
possessor struck out the 1st of January and inserted the

11:32 MASTER V. MILLKi:.

1st i>i Miircli ;igiiiii. Ill an action brought on thi.s bill, the
(luestion was whithtT tlicse alterutions ilid not destroy tiie
bill; anil inlid by l^onl Chief Justice Pemherton^ that tjjey
did not. Now, on reading tliis case, I cannot consider it
in any other liglit than as an action brought against the ac-
ceptor; for it oidy slates what passed l)etween those parties.
Here then is a rule which has picvailcd in the coinniercial
world for 110 years : it stands uncontradicted and uninipcached :
it was decided by great authority ; and as, I take it, on delilx.'r-
ation. i^'or when it is said to have been in H. K., that must
either have Ikhij in this court, or on a case saved by Chief
Justice Piinltcrton for ids own opinion : which was a common
way of proceeding in those days. In that case the term "alter-
ation " is used, and therefore we need not be frightened or
alarmed at that word. The effect of the alteration was to
accelerate the payment; so it is here. I5iit in one respect that
case goes beyond the i)resent; for there the alteration was
made by the plaintiff liimself : here it was not. It is true, in
that ease, when the plainlitV lOiind he eouM not receive the
money on the 1st of January, he altered it back to the 1st of
March; but if the lirst alteration vitiated the bill, no sukse-
quent alteration could set it up against the acceptor without
his consent. Here the {ilaintiffs have not re-altered the bill;
hut they have acted a more honest part; they have left the
bill as it was to speak for itself; but they have treated it as a
bill of the 26th of Mareh ; they havt- ]>ioved that it was a bill
of the 20th of March; they demanded ])aymcnt according to
that date : and the jury have found all these facts to be true.
And it is material to consider what was the issue joined be-
tween the parties ; for there is a great deal of difference be-
tween the plea of non est factum and the present: here the
question is, whether the drawer made such a bill, and whether
the defendant accepted it ; and this is found by the jury. Then
the case of Price v. Shute, in sense and substance, is a direct
authority in point with the present ; though it vary in a minute
and immaterial circumstance. The plaintiffs in treating the
bill, and making a demand as they have done, seem to have
followed the sober advice and directions given by Beawes in
pi. 190; where he says, "he that is possessor of a bill which
only says ' pay,' without mentioning the time when, or that
is without a date, or not clearly and legibly written, payable

MASTER V, MILLER. 1133

some time after date, &c., so that the certam precise time of
payment cannot be calculated or known, must be very circum-
spect, and demand the money whenever there is any probable
appearance of the time being completed that was intended for
its payment .: or that he can demonstrate any circumstance that
may determine it, or make it likely wlien it shall be paid." It
is impossible that this writer could have supposed that the bill
was rendered void by any blot, obliteration, or erasure : on the
contrary, he tells you that it must be demanded in time, and
that you may make out by circumstances or other evidence
when it was, or was likely to be, payable. That has been
made out by evidence in the present case. Upon this head I
shall only add one authority more, which is Carth. 460, where
a bill was accepted after a day of payment was elapsed. It
was objected that it was impossible in such a case for the
defendant to pay according to the tenor of the bill, and there-
fore the declaration was bad ; but the Court held it good, and
said the effect of the bill was the payment of the money, and
not the day of payment. So here the defendant having ac-
cepted this bill, whatever may be the construction as to the
date, must pay the money. I hold that in this case there is
no fraud either express or implied; and that, as the plaintiffs
have proved that they gave a valuable consideration for the
bill, and that it was indorsed to them by those through whose
hands it passed, their case is open to no objection whatever.
But I will suppose for a moment, though the case do not war-
rant it, that Wilkinson and Cooke did mean a fraud; still I
am of opinion that would not affect the case between the
plaintiffs and the defendant. It is a common saying in our law-
books, that fraud vitiates everytliing. I do not quarrel with
the phrase, or mean in the smallest degree to impeach the
various cases which have been founded on the proof of fraud.
But still we must recollect that the principle which I have
mentioned is always applied ad hominem. He who is guilty
of a fraud shall never be permitted to avail himself of it ; and
if a contract founded in fraud be questioned between the par-
ties to that contract, I agree, that, as against the person who
has committed the fraud, and who endeavours to avail himself
of it, the contract shall be considered as null and void. But
there is no case in which a fraud intended by one man shall
overturn a fair and bond fide contract between two others.

llo4 MASTKl: \. MILI.KI;.

Even as Ix^twcen the parties themselves we niiisi mn lui^'i-i
tlie lij^uiativc laMgiiaL,a' of Lord ChiL-f .Iiistice Wilmitt, who
said that "tlie statute hiw is like a tyrant: where hf conius he
makos all voi<l; hut tlu? connnon law is like a nursing' father,
and makes void only that part where the fault is, and jireservea
the rest." 2 Wils. MjA. If :in alteiatinn 1m.' made to effeet a
fraud, the alteratiou shall l)e laid out of the (piestion ; hut still
the eontract shall exist to its orij^inal and honest purpose, and
shall he earried into execution as if the fraud ha<l never ex-
isted. A ctise somewhat similar to this is to i)e found in the
book which I have before (pioted, and which thoui^h not a
bindint; legal authority, yet, where its propositions are founded
on practii^e ami jj^ood sense, is deservim,' of soiue attention.
Beawes, tit. Bill of Kxehaufje, pi. 135, says, "where the jxks-
Bcssor of a hill payable to his order fails, and to defraud his
crcditois indorses it to another, who negotiates it, and effect-
ually ri'ceives the value, in<loising it again to a third, «S:c., and
thougli the creditors, having discovered the fraud, oppose it,
yet the aeceptant must pay it to him who comes to receive it,
on proof that he paid the real value for it." Hut it has lieen
contended that there is an analogy between bills of exchange
and deeds, and that in the ease of deeds any erasure or alter-
ation will avoid the d"c(l. In answer to this, fust, I deny the
analogy between bills of exchange and deeds, and there is no
authority to sujjport it. In the case of deeds, there must be
a profert (^(i^,:\nd, as Ave learn from 10 Co. '.i^ b., in ancient
times the judges pronounced upon view of the deed, though
Lord Coke says that practice was afterwards altered. But
there never is a profert of a l)ill of exchange ; the judges
cannot determine on a view of that, but it must be left to a
jury to decide upon the whole of the evidence, according to
the truth of the case. Again, in the case of joint and several
bonds the objection was founded on its being a substantial
injury to the defendant ; for if it were considered as a sole
bond, the defendant would be answerable for the whole debt ;
but if it were a joint bond, he would be liable to only half or
other proportionable part of it. So far in those days did the
Court look into the equity of the case. But the blot on this
bill is no injury to the defendant ; he is not liable to pay till

(«) [By the "Common Law Procedure Act, 1852," s. 55, it was made
unnecessary to make profei't.]

MASTER V. MlLLEl!. 1135

the bill became due, computing the time from the original
date; then he must pay it: he alone is liable; and he never
can be charged a second time on the bill. Secondly, it is not
universally true that a deed is destro^^ed by an alteration, or by
tearing off the seal. In Palm. 403, a deed which had erasures
in it, and from which the seal was torn, and was held good, it
appearing that the seal was torn off by a little boy. So in any
case where the seal is torn off by accident after plea pleaded,
as appears by the cases quoted by the plaintiff's counsel. And
in these days, I think even if the seal were torn off before the
action brought, there would be no difficulty in framing a
declaration, which would obviate every doubt upon that point,
by stating the truth of the case. The difficulty which arose
in the old cases depended very much on the technical forms
of pleading applicable to deeds alone. The plaintiff made a
profert of the deed under seal, which he still must do, unless
he can allege a sufficient ground for excusing it ; when that
is done, the deed or the profert must agree with that stated
in the declaration, or the plaintiff fails. But a profert of a
deed without a seal will not support the allegation of a deed
with a seal. For these reasons I am of opinion that the plain-
tiffs are entitled to judgment on the second count, which is
drawn upon the bill, stating it to bear date the 26th March.

But supposing there could be any doubt on this part of the
case, I am also of opinion that the plaintiffs are entitled to their
judgment on either of the two counts for money paid, or for
money had and received. Here it is material to recall to our
minds the facts found by the verdict. The bill produced to the
jury was drawn for value, and was accepted by the defendant.
He is not found to have no effects of the drawer's in his hands ;
and his accepting the bill imports, and is at the least prima
facie evidence, that he had: and on this A^erdict he must be
taken to have the amount in his hands. In Burr. 1675, A^ton^
J., said, it is an admission of effects. Bjr his acceptance he
gave faith to the bill ; and the plaintiffs, giving credit to that
fact, have actually paid the value of the bill on receiving it.
On this case the money paid by the plaintiffs is money paid for
the use of the defendant ; for the money was advanced on the
credit of the defendant, and in consequence of his undertaking
to pay the bill. Again, the money in the defendant's hands is
so much money received by him for the use of the plaintiffs,

1136 MASTKU V. Mll.LKIl.

who were holders of the bill when it becaino due. Tlic deft-nd-
aiit has got tliat money in his pocket, which in justice and
conscience the plaintiffs ought to have, and therefore they are
entitled to recover it in an action for money had and received.
In answer to this, it was in the last term suggested for con-
sideration, whctluu- this IjIU after the alteration wore not a
chose in action, which could not ])e assigned? It is laid down
in our old books, that for avoiding maintenance a chitxf in ar-
tion cannot be assigned, or granted over to anotlier. Co. Litt.
214 a., 266 a.; 2 Roll. 45. 1. 40(^0- '^le good sense of that
rule seems to me to be very questionable ; and in early as well
as modern times it has been so explained away, that it remains at
most only an objection to the form of the action in any case (K).
In 2 Roll. Abr. 45 & 46, it is admitted that an oljligation or
other deed may be granted, so tluit the writing jjasses : but it is
said that tlie grantee cannot sue for it in his own name. If a
third i)erson be permitted to ac(iuire the interest in a thing,
whether lie is to bring the action in his own name, or in the
name of the grantor, does not seem to me to affect the question
of maintenance. It is curious, and not altogether useless, to
see how the doctrine of maintenance has from time to time
been received in Westminster-hall. At one time, not only he
who laid out money to assist another in his cause, but he tliat
by his friendship or interest saved him an expense which he
would otherwise be put to, Avas held gnilty of maintenance (<^).
Bro. tit. Maintenance, 7, 14, 17, &c. Nay, if he officiously gave
evidence, it was maintenance : so that he must have had a f^nh-
pcena^ or suppress the truth. That such doctrine, repugnant
to every honest feeling of the lnun;in licart, should be soon laid
aside must be expected. Accordingly a variety of exceptions
were soon made ; and, amongst others, it was held, that if a
person has any interest in the thing in dispute, though on con-
tingency only, he may lawfully maintain an action on it ; 2 Roll.

(a) [See a curious passage iu N. S. 308; and now by the Judicature
Termes de la Ley, tit. Chose in Act, 1873, s. 25, subs. 6, an assign-
Action.] . ment in writing with notice to the

(h) [The doctrine that there can- debtor is effectual in law.]
not be an assignment of a debt has (r) [See the judgment of Lord

been long ago exploded. See Xoy's Ahimjer, in Finden v. Parker, 11 M.

Maxims, p. 72; the judgment of & "W. 675, 682; 4 Ken. Coram. 10th

Willes, J., in Balfour v. The Sea, ed., 31, note; Williamson v . Henley , &

Fire, and Life Assurance Co., 3 C. B., Bing. 299.]

MASTER V. MILLER. 1137

Abr. 115 ; but in the midst of all these doctrines on maintenance,
there was one case in which the courts of law allowed of an
assignment of a cliose in action, and that was in the case of the
crown ; for the courts did not feel themselves bold enough to
tie up the property of the crown, or to prevent that from being
transferred. 3 Leon. 198 ; 2 Cro. 180. Courts of equity from
the earliest times thought the doctrine too absurd for them
to adopt it, and therefore they always acted in direct contradic-.
tion to it ; and we shall soon see that courts of law also altered
their language on the subject very much. In 12 Mod. 554, the
Court speaks of an assignment of an apprentice, or an assign-
ment of a bond, as things which are good between the j)arties,
and to which they must give their sanction and act upon. So
an assignment of a chose in action has always been held a good
consideration for a promise. It was so in 1 Roll. Abr. 29 ; Sid.
21 2,. and T. Jones, 222 ; and lastly, by all the judges of Eng-
land in Moulchdale v. Birchall, 2 Black. 820, though the debt as-
signed was uncertain. After these cases, we may venture to say
that the maxim was a bad one, and that it proceeded on a foun-
dation which fails. But still it must be admitted, that though the
courts of law have gone the length of taking notice of assign-
ments of choses in action and of acting upon them, yet in many
cases they have adhered to the formal objection that the action
shall be brought in the name of the assignor, and not in the
name of the assignee. I see no use or convenience in preserv-
ing the shadow when the substance is gone ; and that it is merely
a shadow, is apparent from the latter cases, in which the Court
have taken care that it shall never work injustice. In Bottomley
V. Brooke, C. B. Mich. 22 G. 3 (a), which was debt on bond, the
defendant pleaded that the bond was given for securing 103Z.
lent to the defendant by E Chancellor ; and was given by her
direction in trust for her, and that E. Chancellor was indebted
to the defendant in more money. To this plea there was a de-
murrer, which was withdrawn by the advice of the Court. In
Budge v. Birch (5), K. B. Mich. 25 G. 3 (c), on the same plead-
ings there was judgment for the defendant. And in Winch v.

(rt) 1 T. R. 621. them was rather to be restrained than

(6) But these cases have been dis- extended. [This is, however, at vari-

approved of. Tucker v. Tucker, 4 B. ance with the policy of the Second C.

& Ad. 745. And see Wake v. Tinkler, L. P. Act, 1854, and the Judicature

16 E. 36, wtiere Lord ElJenborough Acts.]

said, that the doctrine laid down in (c) IT. II. 622.

1138 MASTKlt V. MILLKK.

Keeley^ K. B. Ilil. 27 (i. '^ (a), where the obligee unsigned over
a bond and afterwards l)ecanie a bankrupt, tlie Court held that
he might notwithstanding maintain the action. Mr. J. Axhurst
said, " It is true that formerly courts of law did not take nt)tice
of an ecjuity or a trust ; but (tf late years, as it hits been found
productive of great expense to send the [larties to tiie otlier
side of the hall, wherever this Court have seen that the justice
.of the case has been clearly with tlie plaintitY, they have not
turned iiim round u[)on this objection. Then if this Court will
take notice of a trust, why should they not f»f an eciuity? It
is certainly true that a chose in action cannot strictly l>e as-
signed ; but this Court will take notice of a trust, and see who
is beneficially interested." Hut admitting that on account of
this «iuaint maxim there may still l)e some cases in which an
action cannot be maintained I)y an assignee of a chose in action
in his own name, it remains to 1h' considered, v/hether that ob-
jection ever did iiold or ever can hold in the case of a mercan-
tile instrument or transaction. 'Hu- law-nu'ichant is a system
of eipiity, founded on the rules of etpiity, and govi'rned in all
its parts by plain justice and good faith. In Pdlan v. Van
Mierop^ Lord Mansfield said, if a man agree to do what if finally
executed would make him liable, as in a court of ecjuity, s(^, in
mercantile transactions, the law looks on the act as done. I
can find no instance in which the f)bjection has j)revailed in a
mercantile case; and in the two instances most universally
in use, it undoubtedly iloes not hold; that is, in the cases of
bills of exchange and policies of insurance. The first is the
present case; and bills are assignable by the custom of mer-
chants; so in the case of policies of insurance ; till tiie late act
was made, re(|uiring that the name of the person interested
should be inserted in the policy, the constant course was to
make the policy in the name of the broker ; and yet the owner
of the goods maintained an action upon it. Circulation and
the transfer of property are the life and soul of trade, and must
not be checked in any instance. There is no reason for con-
fining the power of assignment to the two instruments which I
have mentioned ; and I will show you other cases in which the
Court have allowed it : 1st, In Fenner v. Mears, where the de-
fendant, a captain of an East Indiaman, borrowed lOOOZ. of
Cox, and gave two Respondentia bonds, and signed an in-

(a) Ante, 1 T. K. G19.

MASTER V. MILLER. 1139

dorsement on the back of them, acknowledging that, in case
Cox chose to assign the bonds, he held himself bound to
pay them to the assignees. Cox assigned them to the plain-
tiff, who was allowed to recover the amount of them in an
action for money had and received. De G-rey, Chief Justice,
in disposing of the motion for a new trial, said (a), Responden-
tia bonds have been found essentially necessary for carrying
on the India trade ; but it would clog these securities, and be
productive of great inconvenience, if they were obliged to
remain in the hands of the first obligee. This contract is
therefore devised to operate upon subsequent assignments, and
amounts to a declaration, that upon such assignment the money
which I have borrowed shall no longer be the money of A., but
of B., his substitute. The plaintiff is certainly entitled to the
money in conscience, and, therefore, I think, entitled also at
law : for the defendant has promised to pay any person who is
entitled to the money. So in the present case, I say the plain-
tiffs are in conscience entitled to the money, and the defend-
ant has promised to pay, or, which is the same thing, is by law
bound to pay the money to any person who is entitled. The
very nature and foundation of an action for money had and
received is, that the plaintiff is in conscience entitled to the
money ; and on that ground it has been repeatedly said to be
a bill in equity. We all remember the sound and manly opin-
ion given by my Lord Chief Justice here in the beginning of
the last term on a motion made by Mr. Bearcroft for a new
trial, wherein he said, if he found justice and honesty on the
side of the plaintiff here, he would never turn him round, in
order to give him the chance of getting justice elsewhere. —
2ndly, Clarke v. Adaii\ sittings after Easter, 4 Geo. 3 : Debray,
an officer, drew a bill on the agent of a regiment payable out of
the first money which should become due to him on account
of arrears or non-effective money. Adair did not accept the
bill, but marked it in his book, and promised to pay when
effects came to hand. Debray died before the bill was paid ;
and the administratrix brought an action against Adair for
money had and received. It was allowed by all parties that
this was not a bill within the custom of merchants : but Lord
Mansfield said that it is an assignment for valuable considera-
tion, with notice to the agent ; and he is bound to pay it. He

(rt) 2 Bl. Rep. 1272.

1140 MASTKi: V. MILLKK.

said la- ivinoinhertMl a easo in Chaiieery, wlieiv an ajjent under
the like uiiounistances had paitl the money to tlie administrator,
and was deereed notwithstanding^ to pay to the pei-Hon in whuMU
favour tlie bill was drawn. — 3nlly, In hrael v. Dowfltm, ('. H.
East. 21» a. 3 (a), A. l>ein«; indebted to H., ;ind B. indebted to
C, H. pave an order to A. to pay ('. the money due from A. to
H. ; whereu[»on ('. lent H. a further sum, and tlie onh-r wjuj
aceepted l)V A. < >n the refusal of A. to coinply witli the order,
it was held that (". mii,dit maintain an actitui for money had
and reeeived against him. And Mr. J. I/xith expressly saitl lie
thou<,dit in mereantile transaetions of this .sort sueh an under-
taking may be eonstrued to make a man liable for money had
and received. This opinion was eited with approUition in the
House of Lords in (fif>»on v. M'met. Lastly, I come to the
ease of Tatlock v. Iftrrin, (3 T. K. 1S2,) in which Lord Kent/on
in deliveriui^ the judLjment of the court, said it "was an aj)pro-
priation of so nni<li mom-y to be paid to the pei'son who should
luMoiiic the lioldiT <if tlic liill. We consider it as an agreement
between all the part it's to appropriate so much property to Imj
carried to the account of the holder of the bill; and this will
satisfy the justice of the case, without infringing any rule of
law." All these cases prove that the remedy will K* enlarged,
if necessary, to attain the justice of the c ise ; and that if the
l)laintiff has justice and conscience on his side, and the defend-
ant has notice only, the plaintiff shall recover in an action for
m(»nev had and received. Let us not be le.ss lil>eral than our
predecessors, and even we ourselves, have been on former occa-
sions. Let us recollect, as Loril Chief .lustice Wilmot said in
the case I have alluded to, that not only f>oni juiUcin ext mnpli-
are jurisdictionem, but ampUare juatitiam : and that the common
law of the land is the birthright of the subject, under which we
are bound to administer him justice, without sending him to his
writ of subpoena, if he can make that justice appear. The jus-
tice, equity, and good conscience of the case of these plaintiffs
can admit of no question; neither can it be doubted but that
the defendant has got the money which the plaintiffs ought to
receive. For these reasons, I am of opinion that the plaintiffs
are entitled to judgment on either of these three counts in the
declaration, namely, on the count on the bill of exchange,
stating the date to be the 26th; or on the count for money
paid ; or on the count for money had and reeeived.

(a) 1 II. Bl. 242.

MASTER V. MILLER. H^l

arose, J. -The only question in this case is, whether there
appears on the face of this special verdict a right of action in
the plaintiffs on any of the counts. The first count is on a bill
of exchange dated the 20th of March; but, there being no proof
of any bill of that date, there is clearly an end of that count.
The second is on a bill dated the 26th of March; but the de-
fendant objects to the plaintiffs' recovering on this count also,
because the bill having been altered while it was in the hands
of W ilkmson and Cooke, it is not the same bill as that which
was accepted; and that is the true and only question in the
cause. My idea is, that the plaintiffs' right of action, as stated
in this count, cannot be maintained at common law, but is sup-
por ed only on the custom of merchants, which permits these
particular chases vn action to be transferred from one person to
another. The plaintiffs, as indorsees, in order to recover on this
bill, must prove the acceptance by the defendant, the indorse-
ment from Wilkinson and Cooke to them, and that this was
the bill which was presented when it became due. No^^- has all
this been proved? The bill was drawn on the 26th of .March
payable at three months' date ; the defendant's engagement by
his acceptance was, that it should be paid when it became due
according to that date ; but afterwards the date was altered ; the'
date I consider as a very material part of the bill, and by the
alteration the time of payment is accelerated several days-
according to that alteration, the payment was demanded on L
23rd of June, which shows that the plaintiffs considered it as a
bill di^wn the 20th of March ; then the bill which was produced
m evidence to the jury was not the same bill which was drawn
by Feel and Co., and accepted by the defendant ; and here the
cases which were cited at the bar apply. Pigot^, i, the leading
case; from that I collect, that when a deed is erased, whereb?
1 becomes void, the obligor may plead non est factum, and give
the matter in evidence, because at the time of plea pleaded it
was not hisdeed; and, 2ndly, that when a deed is altered in a
material pomt by himself, or even by a stranger, the deed there-
by becomes void. Now the effect of that determinarion is, that
a materia alteration in a deed causes it no longer to be the
same deed. Such is the law respecting deeds (a) : but it is said

9^ ml'of ^tw!f' '"' ?"' '' ''"''■ '' ''' '''' '""''^ '' "'^--^"'-^ "* -«^--^-«^
profet of a leer T /--/-'-""^ Po^n^s or places, and that the m<)es in
P^ofeu of a deed is stated to be that ancient time did judge uvon their view

nil' MASTKi: V. MiLLKU.

thiit tli;it l;iu' does not fXteiiil to the iMsu of u l»ill •>{ eXih.iu^e ;
whether il do or not must depend on tlie |niiui|»le on which
this hiw is founded. The policy of the law luw been alicjuly
stilted, nunielV') thiitii man shilU not take the chance of commit-
tint; a tVaud, and, when that fiau<l is tletected, recover on the
iiislnimt'iit as it was orii^inally made. In surh a ease the law
intervenes, and says, that the deeil thus alleicd no longer con-
tinues the same deed, and that no person can maintain an action
upon it. In reading' that and the other cases cited, I olwerve
that it is in)where said that the tleeil is void merely U'cause it
is the case of a deed, hut iK'cause it is not the sanu; deed. A
deed is nothing m()re than an instrument or aj^recment under
seal: and the principle of those cases is, that any alteration in a
material jtart of any instrument or a«;reement avoids it, iM'cause
it therehy ceases to l)e the same instrument. Ami this principle
is fouMded on Ljreat ijood sen.se, l)ecause il tends to prevent the
j)arty, in whosi- favour it is made, from attemptini; to make any
alteration in it. This priiu-iple too appears to nu' as applicable
to oni- kind of instrunu-nt as to another. Hut it has heen con-
tended tliat thi-re is a ditTen-nci' hetween an alterali(Ui of hills
of exchan;,a' and deeds; hut I think that t^he reason of the rule
affects the former more stronj,dy, and the alteration of them
should he more penal than in the latter case. Supposinj^ a hill
of exchange were drawn for 100/., and after acceptance the sum
was altered to lOOO/. : it is m)t pretended that the acceptor shall
he liahle to pay the 1000/. : and I say that he cannot Ixj compelled
to pay the 100/., accordinj^ to his acceptance of the hill, hecause
it is not the same hill. So if the name of the payee had heen
altered, it would not have continued the same hill. And the
alteration in every respect prevents the instrument's continuing'
the same, as well as when applied to a hill as to a deed. It was
said that Piyofs Case only shows to what time the issue relates :
but it goes further, and shows, that if the instrument be altered
at any time before plea pleaded, it becomes void. It is true the
Court will inquire to what time the issue relates in both cases.

the deed to be void, hut of late times 200. But if tliejrrantec be sufficiently

have left that to be tried by the jury if identified, such an addition as filling

the rasing or interlining irere before up a blank left for his Christian name

delivery. On similar principles a deed, will not hurt. Eaghtnnx. Gutteridge,

the name of the grantee in which is 11 M. & W. 465. So tilling in a blank

introduced after ilelivery, is void. with the date does not vitiate. Keane

Hibbleichite v. iVWorine, 6 M. & W. v. Smallbone, 17 C. B. 179.

MASTER V. .MILLER, 1143"

Then to what time does the issue relate here ? The plaintiffs in
this case undertook to prove everything that would support the
assumj^sit in law, otherwise the assumpsit did not arise. It was
incumbent on them to prove that, before the action was brought,
this identical bill, which was produced in evidence to the jur}-,
was accepted by the defendant, presented, and refused : but if
the bill, which was accepted by the defendant, were altered be-
fore it was presented for payment, then that identical bill,
which was accepted by the defendant, was not presented for
payment; the defendant's refusal was a refusal to pay another
instrument: and therefore the plaintiffs failed in proving a
necessary averment in their declaration. If the bill had been
presented and refused payment, and it had been altered after
the action was brought, then it might have been like the case
mentioned at the bar. It was contended at the bar, that the
inquiry before a jury in an action like the present should be,
whether or not the defendant promised to pay the bill at the
time of his acceptance : but granting that he did so promise,
that alone will not make him liable unless that same bill were
afterwards presented to him. I will not repeat the observations
which have been already made by my lord on the case in Mol-
loy : but the note of that case is a very short one ; and the prin-
ciple of it is not set forth in any other book, nor indeed do the
facts of it sufficiently appear. I doubt also whether it was a de-
termination of this Court : it only appears that there was a point
made at Hisi Prius, but not that it was afterwards argued here.
But it has been said that a decision in favour of the plaintiffs will
be the most convenient one for the commercial world ; but that
is much to be doubted; for if, after an alteration of this kind^
it be competent to the Court to inquire into the original date
of the instrument, it will also be competent to inquire into the
original sum and the original payee, after they have been altered,
which Avould create much confusion, and open a door to fraud.
Great and mischievous neglects have already crept into these
transactions ; and I conceive that keeping a strict hand over the
holders of bills of exchange, to prevent any attempts to alter
them, may be attended with many good effects, and cannot be
productive of any bad consequences, because the party who has
paid a value for the bill may have recourse to the person who
immediately received it from him. On these grounds, there-
fore, I am of the opinion that the plaintiff's cannot recover on

11 U MASTKU V. MlM.KIt.

the second count. Neither <hi I think that they can rfeover
on the ^rtMieruI <oiint, U'ciiUHc it is nut Htated tus ii fact in thu ver-
dict thiit the defeinhmt received tin- money, the valiu* of the hill.
Per curiam. .Ind^Mnent fur the defeiuhmt.

MASTKK V. MILLKH, IN TMK KXCIIEt^lKK rMAMHKlt, IN KKItoR.

< )ii helwdf of the pliiintitT, Wootl arj^uetl as foUows: It \\n»
heeii conten(h'd, on the other sid»', in tlie court ludow, that tho
uccei)tor of the iiill was dischari,'ed from liis acceptance hy the
alteration itf the date, tln)Ui,di madi- witiiout the kn«»\vh'«ij:re of
the holder: l)Ut no case has U'cn cited to show, that an altera-
tion, such as was ma«U' in tiie present instance, would vitiate
a written instrument, except it were a deed. Hut there is a
material dilTerence In'tween (U'eds and hills of exchange. Di'cd.s
seldom if ever pass throu^li a variety of hands, and are not
liable to the same accidents t«» wlucli bills are, from their nego-
tiability, exposed. There is tlurefore gootl reason in the rule,
which rcijuires that <leeds should Ik* strictly kept, an<l which
will not sulTer the least alteration in tlu-m ; but the same rule i.s
not applicable to bills. In an«ient times the Court <leeide<l on
the inspection of deeds, for which reason a profert was neces-
sary, that they mii^ht si'c whether any rasure or alteration had
taken place: but bills of exchange were always within the cog-
nizance of the jury. The form of the issue on a deed, also, is dif-
ferent from that on a bill ; in the one it i.s, that it is not then, /.«.,
at the time of plea pleade<l, the deed of the party ; 11 Co. 27, a,
Pil/ofs Case; but the issue on a bill is, that the defendant did
not undertake and promise. Here the jury have expressly
found that the defendant did accept the bill, and the promise
arises by implication of law from the acceptance. An alteration
in the date, subsequent to the acceptance, will not do away the
implied promise. In Price v. Shute^ "a bill was drawn payable
the 1st of January; the person upon whom it was drawn ac-
cepts the bill to be paid the 1st of March ; the servant brings
back the bill ; the master, perceiving the enlarged acceptance,
strikes out the 1st of IVIarch, and puts in the 1st of January,
and then sends the bill to be paid ; the acceptor then refuses :
whereupon the person to whom the monies were to be paid strikes
out the 1st of January, and puts in the 1st of March again. In

MASTER V. MILLEPw 1145

an action brought on this bill, the question was, Whether these
alterations did not destroy the bill ? and ruled they did not." 2
Molloy, 109. In Nieliols v. Haywood, Dyer, 59, it was holden
in the case of a bond, that where the seal was destroyed by
accident before the trial, the jury might find the special matter,
and being after plea pleaded, it could not be assigned for error,
but the plaintiff recovered. To the same point also is Cro. Eliz.
120, Michael v. S'cochvith. So in the present case, it was com-
petent to the jury to find the special matter, and an alteration in
the bill, subsequent to the time of the acceptance, ought not to
prevent the plaintiff from recovering. In i>r. LeyfieWs Case,
10 Co. 92, b, it is said, " in great and notorious extremities, as
by casualties of fire, that all his evidences were burnt in his
house, there, if that should appear to the judges, they may, in
favour of him Avho has so great a loss by fire, suffer him upon
the general issue to prove the deed in evidence to the jury by
witnesses:" the casualty by fire is only put as an instance, for
the principle is applicable to all cases of accident. Thus also in
Read v. Brookman, 3 Term Rep. B. R. 151, a deed was pleaded
as being lost by time and accident, without a profert : and the
present case is within the reason and spirit of that determination.

Bearcroft, contra. — On principles of law and sound policy,
the plaintiff ought not to recover. The reason of the rule, that
a material alteration shall vitiate a deed, is applicable to all
written instruments, and particularly to bills of exchange,
which are of universal use in the transactions of mankind.
And here there was a material alteration in the bill inasmuch
as the time of payment was accelerated. As to the case of
Price V. Shute, it is but loosely stated, and that not in any book
of reports ; and it does not appear against whom the action was
brought.

Lord Chief Justice Eyre. — I cannot bring myself to enter-
tain any doubt on this case ; and if the rest of the court are of
the same opinion it is needless to put the parties to the delay
and expense of a second argument. When it is admitted that
the alteration of a deed would vitiate it, the point seems to me
to be concluded ; for by the custom of merchants duty arises on
bills of exchange from the operation of law, in the same manner
as a duty is created on a deed b}^ the act of the parties. With
respect to the argument from the negotiability of bills of ex-
change and their passing through a variety of hands, the infer-

1 1 \h MASTKH V. MILLKU.

ence is directly the reverse of tliat whiclj was drawn hy the
counsel for the plaintifY: tiiere are no witnesses to a hill «>f ex-
change, as there are to a deed; a hill is more easily altered
than a deed; if therefore cnuits of justice weie not U) insist on
V)ills heinj^ strictly and faithfully kept, alterations in them
highly dangerous might take place, such as the addition of a
cipher in a hill for 1(M>/., hy which the sum might l»e changed
to lOUU/., and the holder having failed in attempting to rec«»ver
the 1000/., might afterwards take his chance of recovering the
100/., as the bill originally stood. lint such a proceeding would
he intolerahle. It was said in the argument that the defendant
C(udd not dispute the finding of the jury, that they found he
acce])ti'd tlic hill, and therefore that the suhstance of the issue
was proved against him. Hut the meaning of the plea of non
ossiiiii/isif is, not that he did not accept the l»ill, hut that there
was no duty hinding on him at the time of pica pleaded (n).
There are many ways hy whicii the obligation of the acci'ptanco
might he discharged; for instance, hy payment. And it was
certainly competent to him to show, that the duty which arises
primd facie from the acceptance of a hill, wa.s disi'harged in the
present case by the bill itself being vitiated by the alteration
which was made.

Lord Chief Baron Mnnlonnld. — I see no distinction as to the
point in question between deeds and bills of exchange : and I
entirely concur with my Lonl Chief .lustice, in thinking there
would be more dangerous consiMjuences follow from permitting
alterations to be made on bills than on deeds.

The other Judges declared themselves of the same opinion.

Jud<rment allirmed.

Since the decision of this case it never has boon donbted that [at common
law] a material alteration in a bill or note not satisfactorily accounted for
operates as a satisfaction thereof, except as wjainst parties consenting to such
alteration; [even though made bj' a stranger. See Davidson v. Cooper, 11 M.
& W. 795, 13 M. & ^V. 343; Pattinson v. Luckleij, L. R. 10 Ex. 330, 44 L..I. K.\.
180. The question of materiality has been held to be one of law and not to
be judged of by surrounding circumstances, }'anre v. Loirther, 1 Ex. D. 176.
45 L. J. Ex. 200. In the case of bills of excliange and promissory notes it
was by the Bill of Exchange, 1882, sect. 64, enacted as follows : —

64. (1) " Where a bill or acceptance is materially altered without the assent
of all parties liable on the bill, the bill is avoided except as against a party

(a) See Douge. Ill and 112, 8vo. Sullivan v. Montague, and the notes there.

MASTER Y. MILLER. 1147

who has himself made, authorised, or assented to tlie alteration, and subse-
quent indorsers.

Provided that,

Where a bill has been materially altered, but the alteration is not apparent"
{Leeds Bank v. Walker, 11 Q. B. D. 84, 52 L. J. Q. B. 590), " and the bill is in
the hands of a holder in due course, such holder may avail himself of the
bill as if it had not been altered, and may enforce payment of it according to
its original tenour.

(2.) In particular the following alterations are material, namely, any alter-
ation of the date, the sum payable, the time of payment, the place of pay-
ment, and, where a bill has been accepted generally, the addition of a place
of payment without the acceptor's assent."

In Leeds Bank v. Walker, 11 Q. B. D. 84, 52 L. J. Q. B. 590, it was held by
Deuman, J., that this act is not retrospective, and that a Bank of England
note does not come within the section cited above.

In Alderson v. Langdale, 3 B. & Ad. 660, the doctrine [of Master v. 3IiUer'\
was carried still further, and it was held that such an alteration made by the
plaintiff operated as a satisfaction not only of the bill, but of the debt which
it was given to secure. In Alderson v. Langdale, the debtor was the drawer
of the bill altered; but in Atkinson v. Havdon, 2 A. & E. 628, it was held that
where the debtor, being himself the malver or acceptor, could have had no
remedy on the instrument against any other party to it, his liability to pay
the debt secured ther8l)y would not be extinguished by the alteration. In
that case the declaration, so far as is material to the point, was for goods
sold and delivered, and on an account stated. Plea, that the defendant
accepted a bill at two months for the debt; Replication, that it was not paid
when due ; Rejoinder, that the plaintiff had altered it without the defendant's
assent. Demurrer, and judgment for the plaintifi', the defendant's counsel
admitting that the rejoinder could not be supported. It is obvious that this
case ,has no bearing upon the eft'ect of such an alteration in an action on the
bill itself.

Altei'ations in the date, sum, or time for payment, or the insertion of words
authorising transfer or expressing the value to be received on some particular
account, adding the name of a maker or drawer, or an unwarranted place for
payment [had been before the passing of the Bills of Exchange Act, 1882,
held to be] , material alterations within the above rule. See Walton v. Hast-
ings, 4 Camp. 223, 1 Stark. 215 ; Outhwaite v. Luntly, 4 Camp. 179 ; Bowman v.
Nicholl, 5 T. R. 537; Cardivell v. Martin, 9 East, 190; Kershaio v. Cox, 3 Esp.
246; Knill v. Williams, 10 East, 431; Clark v. Blackstock, Holt, N. P., 474;
Tidmarsh v. Grover, 1 M. & S. 735; Cowie v. Halsall, 4 B. & Ad. 197; R. v.
Treble, 2 Taunt. 328 ; Alderson v. Langdale, 3 B. & Ad. 660 ; Taylor v. Moseley,
6 C. & P. 278; Crotty v. Hodges, 4 M. & Gr. 561, 5 Scott, N. E. 221, S. C. ;
Harrison v. Cotgreave, 4 C. B. 562, where the defendant pleaded his infancy
at the time of the alteration (not stating it to have been made without his
consent), and that he had not ratified the contract as altered after he came of
full age; Mason v. Bradley, 11 M. & W. 590, where the name of one of the
makers of a promissory note was cut off; [ Warrington v. Early, 2 E. & B.
763, where the addition was of the words " interest at six per cent, per
annum," in the corner of a note for the payment of a sum " with lawful in-
terest; " ] Burchfield v. Moore, 3 E. & B. 683, where a place of payment was
added to the acceptance, and the acceptor was held not to be liable even to a
bona fide holder for value [(see this explained below) Hirschfeld v. Smith, L.

Ills MASTKU V. MILLKU.

Ii. 1 C. 1'. .'{40; ;{.'> I.. .1. ('. r. 177, wluTi- an atldltion was mncio of the rate of
fxclianj;!' nt wlilcli n 1)111 drawn on I'lirln, was t<> Im- palil; nnil Himrhmmt v.
JliKht, L. K. S Kx. 171 ; 42 L. J. Kx. ll.l, wlit-ri- tin- ilatt- of a lilll payable four
iniiiillis aftiT dat«* was altered from llu- 1-il to the 11th of OctolH-r, and the
alteration was held nniterial notwithstanding; observatlonH to the e«intnir}',
whlfh an- attributed to I'arke, B., In Parnj v. .\iihi>liion, 13 M. & W. 778;
Vdiiif V. Lmrthtr, 1 Kx. 1). 17«. 4.'i L. J. Kx. 'im, where the alteration of the
date of a <-he<|Ue wa.«* helil material; and Sttffi-tl v. Hunk i>f Emjhiml, I) t^. B.
I). ;■>.■».">, where the alteration of the nund>er on a Bank of Knulanil note wa.s
lield material by the ('. A., overrulini; the derision of Lord Colerlilce. ('. J.

In this ease the Conrt <lisa|>pro\ ini; of i'niilirrU v. J'arki-r, Ir. \{. :\ K<| .ir.»,
17 W. ]{. '.'■'»•■». overruled the eonteiitlon that the alteration to be material
withiti the ride must be an alteration of some part of the contraet contained
in the altered instrument, and held that the rule would apply even to an
instrument not containing a eontrart at all.]

When an ncri'jttnncf Is altered by Inserting a place of payment, without
addiiiir the w<jnls, " there only," or " not elsewhere," the alteration Is, In an
action against the acceptor, immaterial If made by his consent [the Hills of
Kx( hanirc .Vet, 1H.S2, s. 11), sid>-s. 2 ('")], having rendere«l the Bb»)ve weirds
necessary in ordi-r to a special ac«'eptance. Il'»///#'r v. Cuhhtj, 2 C i M. l.M,
[decided Upon st. 1 & 2 (1. 4. repealed, but re-enacte<l by the above Act],
But if made without his sanction, it avoids the bill, belni; the unauthorised
appointment «)f an auent to pay the bill. Taylor v. Musrleij, V, ('. & I'. 27H ;
Marititiish V. /laijdnn, H. & M. a«2 ; Dt-nhrnww Wrthrrbtj, 1 M. & Hob. A'A»;
Ciilnrt v. Ihihr, 4 M. & \V. 417; Crnttij v. Ifud/jrg, 4 M. & («. 5(51 ; .1 Scott. N.
R. 221, S. C. Itun-hjield v. Monre, '.\ E. & H. CM. ["Such wonls, although
they do not alter the direct liability of the acceptor, »lo vary the contract
between others who are parties to the bill; therefore If interpolated without
Ins consent, tliey nuiy prejudice the acceptor; they amount to a material
alteration of tlie l)ill." per Campbell, C. J., in the last case. .Vnd see now the
Bills of Kxchauije Act, 1SH2, s. 04, sect. 2, ante.

In Ilitnhiirij v. Lin-t-tt, 1»; W. K. 7'.».'>, IH L. T. N. S. 'MC, the «lcfcutiant had
given his acceptance in l)lank to the plaintifl". which the latter filled up " pay-
able at 14;'). Euston Koad ; " it was held tluit this was etiuivalent to a mate-
rial alteration, and dischar<red the acceptor, at any rate as against the
plaiutirt".

An alteralion made to carry out the original intention of the jiarties does
not vitiate the instrument. Cttrixn v. Tattfrsnll, 2 M. i"i (J. H'.tO; London and
Pr-rinriul Hank v. Rnherts, 22 W. R. 402.]

If the alteration be material, it makes no difl'ercnce that it would operate,
if at all, to the benefit of the maker. Uardnrr v. ]Valsh [."j E. & B. H3]. 24 L.
J. 285, overruling Cotton v. Simpson, 8 A. & E. 13G.

Even if the alteration be made icith the consent of all the parties to the bill
or note; still, as it thereby becomes a new contract, the old stamp will not
suffice, Boicman v. XichoU, 5 T. R. .537; [Bathe v. Taylor, 1.3 East, 412;] un-
less, indeed, the alteration was merely to correct a mistake, and so render the
instrument what it was originally intended to have been. Kershato v. Cox, 3
Esp. 240; Jacob v. JIart, G M. & S. 142; Clark v. Blackstock, Holt, N. P. 474;
Byron v. Thomson, 11 A. & E. 31 ; Cariss v. Tattcrsall, 3 Scott, N. R.257. 2 M.
& G. 890, S. C, which see as to the evidence sufficient to prove an assent to
the alteration ; Wright v. Inshaw, 1 Dowi. N. S. 802 ; [the intent of the alter-
ation is a question for the jury; Byles on Bills, 14th Ed. 339.]

MASTER V. MILLER. 1149

The addition of a new contractor witli the assent of all parties does not
hurt, according to Zouch v. Clay, 1 Vent. 185, 2 Lev. 35, S. C. ; [or where he
was originally intended to be added, Dodge v. Priiigle, 29 L. J. Exch. 115;]
and according to Catton v. Simpson, 8 A. & E. 136, 3 N. & P. 241, S. C, the
addition of a contracting party without consent is merely inoperative, but
according to the later authority of Gardner v. Walsh, siipra, it vitiates the
instrument.

The addition [however] of a thing perfectly immaterial does not affect the
liability of the parties, Catton v. Simpson, 8 A. & E. 136. [Where the altera-
tion is an immaterial one, the Court of Queen's Bench declining to be bound
by the second resolution in PigoVs Case, 11 Rep. at fol. 27a, have decided
that though made by a party to the instrument it does not vitiate the instru-
ment. Aldous V. Cornu-eU, L. R. 3 Q. B. 573, 37 L. J. Q. B. 201. That Avas an
action by the payee against the maker of a promissory note, and the altera-
tion proved was the addition of the words " on demand," which was held to
be immaterial.

See also Garrard v. Lewis, 10 Q. B. D. 30, decided before the Bills of
Exchange Act, 1882, where it was held that no alteration (even it be fraudu-
lent and unauthorised) of the marginal flgure in a bill vitiates it as a bill for
the full amount inserted in the body when the bill reaches the hand of a
holder who is unaware that the marginal index has been improperly altered.
In Caldwell v. Parker, 3 Ir. Rep. Eq. 519, 526, 17 W. R. 955, a deed had been
executed between one Parker of the one part, and was executed by all four.
Subsequently J. Caldwell drew his pen through his own and M. Caldwell's
signatures, the seals remaining untouched. It was admitted that the erasure
was made wilfully, and under the impression that it might influence claims
to be made dehors the deed, but no fraud was intended, and the deed con-
tained no grant or covenant by the Caldwells, and imposed no liability upon
them. They were simply covenantees. It was held that the erasure was
immaterial, and did not avoid the deed. But this case was disapproved by
the C. A. Suffell v. Bank of England, 9 Q. B. D. 555, 51 L. J. Q. B. -101.

In Sellin v. Price, L. R. 2 Ex. 189, 36 L. J. Ex. 93, a composition deed had
been registered under the Bankruptcy Act, 1861, s. 192, between a debtor, a
surety, and " the several persons whose names or firms are set forth in the
schedule hereto, hereinafter styled creditors." At the time of the registra-
tion there was no schedule of creditors annexed, and it was held that the
subsequent addition of a schedule was a material alteration which vitiated
the deed.

But in Wood v. Slack, L. R. 3 Q. B. 379, 37 L. J. Q. B. 130, where the deed
was made between the debtor of the first part, and " the several other per-
sons named in the schedule thereto as creditors, and all other the creditors,
if any, of the defendant of the second part," and was executed before
registration by a suflicieut majority of creditors to make it binding under the
Act, it was decided that the addition to the schedule subsequently to the
registration of the names of two creditors was not a material alteration
of the deed so as to vitiate it, the deed when registered being "as much
binding upon the two creditors before as it was after their names were
inserted in the schedule." See also Harris v. Tenpany, Cab. & El. 65.

In Ex parte Yates, 2 De G. & J. 191, 27 L. J. Bank. 9, the executor of the
payee of a promissory note forbore, at the request of one of the makers, to
press for payment of it on his procuring additional security, and accordingly
another party placed his name on the note, not under the signatures of the

11 "jO MASTKll V. MIl.LKK.

makers, hut in tlic opposite roriuT. Tlio Lords Jiistires lulil tlu- addition to
bf not an allcnition Imt an indorsoni-.-nt.]

An ultoration nwuii* witli tlu' consent of parties before a (till or note htt$
issmd is of no iniportanee, for, up to tlie time of issue, It Is in Jteri ; I)oipne$
V. ltir/i(irdson, Bayley on Hills, oth ed. IIG; Johnnon v. I), of MtirUmrowjh,
2 Stark. 313; so wlien made by an a^ent of all parties. Slotmtn v. Cox,
T) Tyrw. ITf., 1 C. M. & U. 471, S. C. And a bill or note Is said to be vtaued
wliiii it is in the liands of some party entitletl to make a elalni upon It.
Jjonuirs V. Hichardaon, ubi sii)>rit ; ('unhnll v. .\/itrtin, 'J Kast, I'M); Kinnersliy
V. .V(/.s/i, 1 Stark. 3.'>2.

If a l)ill or note exhiliit tlie a|)pearance of alteration. It lies iipf)n the
holder to aecount for it. Ilfinnan v. IHrkemton, ."> Bin*;- l**!!; Hinhop v.
('fiaiitbre, 1 M. & W. llC; Kni'jht v. Clements, 8 A. & E. 213; ( Nf,,r<l
V. Lmlij I'orkir, 2 M. & G. "Joy, 3 Scott, N. K. 233, S. C. [See the observations
as to this in Byles on Bills, 14th Ed. 341.] Whether an interlineation like an
alleratif)n raises a prim!\ facie case of suspicion, so that the onus of explain-
ing it is thrown upon the party produdni; the Instniment, see 2 Wins.
Saiind. 2(M) c. n. (h). It has been laid down by the Court of (Queen's Bench
that altlionj^h in the case of a liill of exi'hani;e there Is a distinct rule that an
alteration must be <'X|»lained, yet that in the case of a ileetl the presumption
is tiial the alteration was made before exectitlon. Doe il. Tntum v. ('(itnmnre,
U) Q. B. 74.-1.

Cinitni of a will, l)e(au<e thai may be altered by the testator, without
wroni;, after It Is executed. Doe d. Shalrross v. Palmer, H! Q. B. 747.
[Arronl. Christmas v. ]yhinijatea, 3 Sw. & Tr. HI ; 32 L. J. Prob. 73, where the
same principle was applied to the case of the mutilation of a will.] (^uare
whether the distinction between an alteration and an Interlineation was much
considered in D<ie d. Tatum v. Catomnre.

A cancellation f>i/ mistake does not attect the liability of the i)arfi»'s whose
siijiintures are cancelled. liaprr v. liirkhrrk-, \'t East, 17; Wilkiitson v. Jnhn-
ao?i, 2 B. & C. 428; Xovelli v. liossi, 2 B. & Ad. 7<;.-. ; Accord. Wanrirk v.
Jinijers, 5 M. & G. 3r)2, fi Scott, N. U. 1, S. C, where an unsuccessful attempt
was made to tl.x a banker who had uiade such a canccllaticm, with the amount
of the bill. [See as to mistake annullin:; the cancellation of a deed, Perrott
V. Perrott, 14 East, 423. " If the absence of intention to cancel be clearly
shown, tlie thing is not cancelled." Bambrrr/er v. The Commercial, dr. Co.,
15 C. B. 693, per Maule, J.]

Although for a long time Pir/ot's Case, 11 Uep. 2G a, and Master v. Miller,
were the authorities always referred to upon ((uestions of alteration, and
although such questions seldom arose except in actions upon deeds, bills of
exchange, and promissory notes, yet the doctrine of those two cases has been
extended to other Avritten instruments.

In Powell V. Divett, 15 East, 2'J, the Court of Queen's Bench applied it to
the case of bought and sold notes, and held that a vendor who, after the
bought and sold notes had been exchanged, prevailed on the broker, without
the consent of the vendee, to add a term to the bought note for his the ven-
dor's benefit, thereby lost all right against the vendee. The same law was
acted upon in Mollett v. Wackerbarth, 5 C. B. 181.

And in Davidson v. Cooper, 11 M. & W. 7S>5, where to a count in assumpsit
on a guaranty, the defendant pleaded that after it was given to the plaintiff,
it was altered in a material particular by some person to the defendant unknown,
without his consent, by affixing a seal so as to make it appear to be the deed

MASTEK V. 3IILLER. 1151

of the defendant, and upon a motion of judgment non abstante veredicto, the
Court of Exchequer reviewed and expounded the Taw upon tlie general subject
of alteration, and holding the case to fall within the doctrine of Pigot's Case,
gave judgment for the defendant. And that judgment was affirmed by the
Court of Exchequer Chamber, "after much doubt," 13 M. &.W. 343. The
doubt at first entertained by the Court of Exchequer Chamber may however
be considered as fortifying their ultimate decision, which was founded on the
principle, " that a party ivho has the custody of an instrument made for his bene-
fit, is bound to presen-e it in its original state." "It is," said Lord Deuman, in
delivering the judgment, " highly important for preserving the purity of
legal instruments, that this principle should be borne in mind, and the rule
adhered to. The party who may suffer has no right to complain, since there
cannot be any alteration except through fraud or laches on his part."

\_Davidson v. Cooper, was acted upon in Croockeicit v. Fletcher, 1 H. & N.
893, in which case the instrument vitiated by alteration was a charter-party
(see also Fazakerly v. McKnight, 6 E. & B. 795), and in Pattinson v. Luc/dey, L.
R. 10 Exch. 330; 44 L. J. Ex. 180, in which case it was a building contract.]

An instrument which, by reason of an alteration, becomes invalid as the
foundation of an action, is not hoAvever thereby necessarily avoided for all
purposes. For instance, the alteration of a deed of conveyance, though it
may deprive the covenantee of all right to sue upon the covenants therein con-
tained, does not affect the ownership of the property conveyed ; and the deed
may, it seems, still be adduced in evidence, to show what was originally con-
veyed thereby. West v. Steward, 14 M. & W. 47.

In such cases, to use the words of Lord Abinger, in delivering the judgment
of the Court, in Davidson v. Cooper, 11 M. & W. 800, " the deed is produced
merely as a proof of some right or title created by or resulting from its hav-
ing been executed" [See Green v. Attenborough, Cam. Scac. 3 H. & C. 468;
where this distinction was adopted, and also per Lord Esher, M. R., in Suffell
V. Bank of England, 9 Q. B. D. at p. 568.]

Also, in the Earl of Falmouth v. Roberts, 9 M. & W. 469, the rule as to the
destructive effect of altering a written instrument was stated by Parke, B.,
to apply where the obligation sought to be enforced is by reason of the instru-
ment. That was an action by landlord against tenant for mismanagement of
a farm, and an instrument purporting to be a written agreement for the let-
ting of the farm Avith stipulations as to the mode of tillage, though exhib-
iting an erasure and interlineation of the term of years not satisfactorily
accounted for, was admitted as evidence of the terms upon which the defend-
ant (who had become tenant from year to year under a contract, implied from
the fact of occupation, to abide by all the terms of the written agreement
applicable to a tenancy from year to year) held the premises. In that case
the instrument given in evidence does not appear to have operated specifically
as an agreement upon the terms of the existing tenancy ; it did not contain
the contract which the plaintifl' sought to enforce ; it was only part of the
evidence to prove that such a contract existed, though not in writing; as
such evidence, only that part of the written instrument which stated the
mode of tillage was material, and that part had not been altered. It was like
the printed paper in Lord Bolton v. Tomlin, 5 A. & E. 856, 1 N. & P. 247, S.
C, with the additional circumstance that it was identified by the tenant's
signature.

In Gould V. Coombs, 1 C. B., 543, also, a promissory note, assumed to have
been avoided as a contract by adding the name of a maker, was yet admitted

lir)2 MASTEU V. MILLKK.

Ill (vhlence together \vith iiii 1 •» l' " f<>r the aiiioiiiit s;lven wlilUt tlie note
was vtilld, to sustain n count upon tin uteount stutctl. In Suttnn v. I'lmmeM,
7 H. & ('. 41)>, an uttereil promissory note was admitted In evidenee to hIiovv
tlie tt-nns of iluposit of money f»)r wideli it had l)een given. In 1 hi- Aijri-
rnltiirnl Iiisiinincf C'omjKimj v. Fitzij>rnlil, 1»! (^. H. 4;H', tlie deetl of st-ttlcment
of the eomi)any was admitte<l in evidence to prove that the defendant was a
shareholder, though the naniex of other shareholders, who slgnetl In-fore hu
did, iia<l lu-en eriused since Ids execution of It. In Ilntrhin* v. Srott, 2 M. &
\V. so'.t, likewise, an altered agreement was admitted in evidence for n col-
hlteral |»urpose; but s«ime of the observations in tliat »'«.se must be taken
sul)je<'l to correctl(»n by hiuiilson v. Cimjifr.

[In I'littinAnn V. Lurkhij, \.. W. 10 K.\. a:lO, 41 L .1. Kx. Iso, the plaintifT had
done work for the defendant after the execution of a written bidldlng eon-
tract. Tliat instrument was after execution altered in a material jiart by the
defendant's architect. Hy the contract no work was to be paid for until
after the architect had given u certltlcate. lint the plalntltT, whilst adndttlng
that u certltlcate hail not been given for the work in respect of whU-h he
sued, contended that the alteration of the Instrument annulled the contract
and that lie might sue upon a ijintutnin imriiit. The c«»urt, however, entered
the judgment for the defendant, holding that though the defendant udght
have lipen disentitled to sue upon the contract as such, the Instrument must
still be looked at In that action to see what were the terms of the contract.
See also Sttimrl v. Astnit, « Irish C. L. Hep. .W>, Cam. Scae. ; AVy/io/./.y v. Hull,
28 L. .1. Kxch. 2.'>7; Citldinll v. I'nrkrr, Ir. Uep. :i K.|. .'.l'.>, 17 W. H. '.•:.:..

The cancellath)n of a deed of lease with the mutual c(>nsent of the lessor
and lessee, does not defeat the rlglit of the former to recover the rent In an
action of del)t on the demise, Lnrd Ward v. Lumlri/, 5 II. & N. «7, and in such
action tlie cancelled instrument is admissible in evidence for the plaintilf on
tlie issue joined on u plea of non-demisit. Snmr v. Saim-, lb. <'..'.t; ; 2'.> L. J.
Kxeli. :V22.]

Ill i>lt;uliiig an alteration the defendant [was bound before the passing of
tlie .ludicatiire .Vets] to show that it was in writing, I/ardfii v. Cliftntt, 1 Q.
B. r)L'2 ; tliat it was made after his contract was coini»lete (as, for Instance, in
the case of the acceptor of a bill, by acceptance^, LnmjUin v. /AtzurKs, r> M.
& W. •)•_".); and, either that It was made without his consent, or that it was
of such a character as to ri'iuler a new stamp necessary, ami made uniler cir-
cumstances in which a new stamp could not legally be alllxed; see Brmlleij v.
n^n-dsli'ii, 14 M. & W. 873, 3 Dowl. & L. 47(;, S. (,'. [and also. perha|)s, that the
alteration was made when the instrument was in the plaintiff's custody,
though made by a stranger. Davidson v. Cooprr. 1:$ M. & W. 343; Patd'iifion v.
T.nrkhii. L. R. 10 Ex. 330, 44 L. J. Ex. 180. As to when a defence under the
Stamp Acts was available by plea, see Lnznrua v. Coirif, 3 (.}. B. 4.">;t ; Mun: v.
luiinj, 23 W. 11. 89 ; and also the last uamed case as to the cancellation of
stamps on foreign bills of exchange.]

1. General rule. — The rule of law in the United States is,
that the material alteration of a written contract, made l)v a
party claiming under it, or by his privity, avoids it as to him,
as against parties not consenting thereto. The courts of the

MASTER V. MILLER. llo3

several states have differed widely in the application of this
universally accepted principle to individual cases, and in this
note an endeavor will be made to classify the conflicting au-
thorities, with special reference to the more recent decisions.

2. Intent. — If an alteration be immaterial, the tendency of
the later decisions seems to be that the instrument is not
avoided thereby, although there be fraudulent intent ; Moye v.
Herndon, 30 Miss. 110 ; Robinson v. Phcenix Bank, 25 la. 430 ;
Fuller V. Green, 64 Wis. 159 (1885). Many decisions and
dicta, however, are to the effect that a fraudulent immaterial
alteration vitiates a written contract ; Adams v. Frye, 3 Met.
103; Ames v. Colburn, 11 Gray 390; Bliss v. Mclntyr, 18
Yerm. 466; Keen v. Monroe, 75 Va. 424 (1881); Milbery v.
Storer, 75 Me. 69 (1883). In CommonAvealth v. Emigrant In-
dustrial Bank, 98 Mass. 12, while admitting this general doc-
trine, the court declined to apply it to negotiable bonds, in the
hands of a land fide purchaser for value, which had been pre-
viously fraudulently altered in an immaterial part. On the
other hand, the decisions are almost unanimously agreed that
a material alteration, though innocently made, avoids the in-
strument, the only question being whether as a matter of law
the alteration be material ; Taylor v. Taylor, 12 Lea (Tenn.)
714 (1883). See, also, language of Sharswood, C. J., in Craig-
head V. McLoney, 99 Pa. St. 211 (1881). But see infra as to
restoration of altered notes.

3. Immaterial alterations made by party claiming under instru-
ment. — The old doctrine laid down in Bigot's case (11 Rep. 26)
that an immaterial alteration avoids an instrument, if made by
a party claiming under it, has never received much favor in
this country ; Hatch v. Hatch, 9 Mass. 307 ; Chessman v. Whitte-
more, 23 Pick. 231 ; NichoUs v. Johnson, 10 Conn. 192 ; Hale v.
Russ, 1 Me. 334 ; Dunn v. Clements, 7 Jones (X. C.) L. 58 ;
Burnham v. Ayer, 35 X. H. 351 ; Robertson v. Hay, 91 Pa. St.
242 (1879). But in some of the earlier cases the rigorous rule
of Pigot's case was approved as to immaterial alterations in
deeds ; Morris's Lessee v. Vanderen, 1 Dall. 64 ; Smith v. Weld,
2 Penn. 54 ; Malin v. Malin, 1 Wend. 625 ; Van Brunt v. Van
Brunt, 3 Edw. Ch. 14. See, also, dicta in Hunt v. Adams, 6
Mass. 519. Recently in England the old rule has been severely
denounced, and the court refused to apply it to negotiable paper;
Aldous V. Cornwell, L. R. 3 Q. B. 573 (1868).

lir.4 MASTKU V. MILMCK.

-1. Spoliation. — AiiotluT (liMtriiii' iuiiiouiucil in Pi<^n»t*s case,
tluit a inatfiial altiiatioii, made l»y a stiaiij^er, avoids i\w in-
strument, has never been introduced into the jurisprudence of
tliis country ; Rees v. Overlxiugh, (3 Cow. 74t> ; Piei-sol v. (Jrimes,
aO Ind. 12!>; Lul)l)crin<T v. Koldhrecher, ±2 Mo. 5'.»G ; (iorden v.
U()l)ert.son, 4s Wis. 4'»:i (1871>) ; I>''im r. Drum, 1:5:5 Ma.s.s.
rm (ISHii): Moore v. Ivers, 83 Mo. 2'.i (1HH;3); Condict r.
Fh.wcr, ]()•; 111. lOo (1H83); Pry i-. Pry, 109 111. 4G0 (1884);
Cliurcli V. Kowle, 142 Mass. 12 (188«;). And even in Kn<,dand,
it' the spoliation takes place while the instrument is (uit ot" the
custody of tlie pLiintiff, it seems that his rifjhts are not im-
l)aired thereby; 2 Taylor's Evidence, i^ 1S20 (8th i-ditiort); Dav-
idson I'. Cooper, 11 .M. *I^ W. TTS. The burden of proof is upon
the holder to show that thi- alleiation was made by a stranger;
Waring ,.. Smytli, 2 Harb. Ch. ll'.t; Lee r. Alexanch-r, '.» H.
Mon. 2;'); Eckert r. Louis, S4 Ind. W (1.S82). The instrument
must l)e del hired upon in its original shape; I'nion National
Hank /•. Koberts, 4;") Wis. 373 (1878).

Most of the recent decisions on this branch of the subject
have been witli reference to the (question who is to Ik.* deemed
a stranger, and there is some conflict among the authorities. In
Brooks V. Allen, Cr2 Ind. 401 (1878), the court say that unless
an agent is authorized by his principal to make an alteration,
the instrument altered by him is not avoided. In Nickerson v.
Sweet, 13') Mass. 514 (1883), it was decided that an unauthor-
ized alteration, made by a general agent, without fraudulent
intent, and of such a nature that no injury could result there-
from, might be reformed in equity. See, also, \'an Brunt v.
Eofi', 35 Barb. 501. In Hunt r. Gray, 35 N. J. Law 227 (1871),
it was held that an alteration made by an agent intrusted with
a note for the purpose of getting it discounted, was a mere
si)oliation. In Bigelow v. Stil})hen, 35 Verm. 521, an agent
authorized to sell the })lainlifY"s goods and take therefor notes
payable to the plaintiff, altered a note so received without
authority, and it was adjudged to be the act of a stranger. To
like effect was Laugenberger r. Kroeger, 48 Cal. 147 (1874).

But in Eckert v. Louis, 84 Ind. 99 (1882), it was held that
a material alteration, made by an agent of the payee before
delivery to him, avoided the note. And to like effect was Lunt
r. Silver, 5 Mo. App. 186 (1878). Here the agent added his
own name as maker before delivery to the payee, and the note

MASTER V. MILLER. 1155

was held to be avoided. See, also, the language of the court
in Marcy v. Dunlap, 5 Lans. 365 (1871), and in Drum v.
Drum, 133 Mass. 566 (1882). In Church v. Fowle, 142 Mass.
82 (1886), it was held whe-re, at the request of both parties, a
third person drew up a note, and without the knowledge of
either appended his signature as a witness, the note was not
avoided. As to the effect of alterations of bonds by officials
while in their custody, see Harris v. Bradford, 4 Ala. 214 ;
United States v. Hatch, 1 Paine (C. C.) 336.

In several cases it has been held, where a material alteration
was made in a note by a principal, after signing by a surety,
before delivery to the payee, and without his knowledge, that
this did not avoid the note, since the alteration was not made
by a party claiming under it, and since the note had not then
become operative ; FuUerton v. Sturges, 4 Ohio St. 529 ; Bing-
ham V. Reddy, 5 Ben. 266 (1871). See, also, Worrall v. Gheen,
39 Penn. St. 388 ; Ogle v. Graham, 2 Penn. 132. But accord-
ing to the great weight of authority the note is thereby
avoided ; Goodman v. Eastman, 4 N. H. 455 ; Wood v. Steele,
6 Wall. 80 ; Draper v. Wood, 112 Mass. 315 ; Hert v. Oehler,
80 Ind. 83 (1881); Jones v. Bangs, 40 Ohio St. 139 (1883).
See, however, Whitmore v. Nickerson, 125 Mass. 496 (1878).
In a recent Minnesota case it was held that a note was not
avoided by the principal's securing another surety without the
consent of the first surety, the payee being ignorant of the facts
in the case ; Ward v. Hackett, 30 Minn. 150 (1883). See, also,
Snyder v. Van Doren, 46 Wis. 602 (1879). In Wilmington &
Weldon R. R. Co. v. Kitchin, 91 N. C. 39 (1884) it was even held,
where the name of one surety on a bond was erased by the prin-
cipal, that a second surety was not discharged, if the obligee
was ignorant of the erasure.

5. Alteration of parol contracts by consent of parties. — All con-
tracts not under seal may be altered or changed in their terms
by oral agreement, and alterations so made, if founded upon a
valuable consideration, are the foundation of a new contract
ingrafted upon the old; Prouty v. Williams, 123 Mass. 297
(1877) ; Boston v. Benson, 12 Cush. 61 ; Pelton v. Prescott, 13
la. 567 (as to a new consideration).

A note altered by consent upon a condition subsequent
remains valid, though the condition never be performed ; Stod-
dard V. Penniman, 113 Mass. 386. An instrument remains

W.'A) MASTKi; V. MILLKU.

valid against j)artirs who consent to an altcratiDii, lliongh
avoided as to those not consenting; \\ aiiiig r. W'iliaiiis, 8 l*iek.
:52:i; Smith r. Wehl, '2 IV-nn. .')4 ; Wills r. Wilson, :', Oreg. 308
(1871); Craighead i: McLoney, 91) Pa. St. Jll ( 188lj. See,
also, Myers v. Nell, 84 Penn. St. 309 (1877). If one maker
voluntarily pays an altered note, he cannot recover of a nt)n-
asst'nting maker; Davis v. Hauer, 41 Ohio St. 2")7 (1884).
The [)laintiff is liable for costs to parties not consenting to
the alteration, tlnni^li he recover judgniciit against those who
ha\e consented; lironghton v. Fuller, 9 N'eiin. 373; Wills r.
Wilson, 3 Oreg. 308. Consent to an alteration may he impliecl,
both from the acts of the party and fiinn a custom ; Bowers r.
Jewell, 2 X. n.543; Clute r. Small, 17 Wnid. 2:5S ; Woodworth
/'. i'.aidc of America, 19 Johns. 391. In Taihlikin r. Cantrell, till
N. ^'. i)'M (1S77), it was held that the payee of a note, given
by a nuuried woman, had no im[»lied aiithority to a<ld words
which would bind her separate estate, but that such an author-
ity might l)c implied, if at the time of signing the not^, slie
ex})ressed the desire that the note might be made legal and
binding. See, also, Reeves r. Picrson, 23 Hun 18") (18H0).

An vuiauthorized alteration may be ratitied by subsequent
acts of the i)arty to be chargi'd. Thus in Prouty '•. Wilson,
cited supra, it was decided, where a note was altered by a
})ayee by the addition of the words ''at eight percent.," with
the consent of the maker, in consideration of forbearance to
sue, that evidence of the payment of the interest at eight per
cent, by a surety, would warrant a jury in tinding that he had
ratified the alteration. In a very recent Illinois case, Canon v.
(rrigsby, llO 111. 151 (188()), the court held, where a joint
note was given for the purchase of goods, and one of the
makers, without the consent of the other, altered it in a mate-
rial [)art, at the request of the payee, that a failure to return
the goods, after knowledge of the alteration, within a reasonable
time, would constitute a ratification on the part of the other
maker. See, also, Grimsted v. Briggs, 4 la. 557 ; King v. Hunt, 13
Mo. 97 ; Humphreys v. duillow, 13 N. H. 385 ; Gardiner v. Har-
back, 21 111. 129 ; State Bank v. Pvising, 4 Ilun 793. A renewal
note given for one that had been altered would not constitute
a ratification, unless given with knowledge of the fact ; Fraker
V. Cullum, 21 Kans. 555 (1879). Whether the alteration was
made by consent, or was subsequently ratified, is a question of

MASTER V. MILLER. 1157

fact for the jury, and the burden of proof is on the plaintiff;
Stahl V. Berger, 10 S. & R. 170 ; Barrington v. Bank of Wash-
ington, 14 S. & R. 405; Overton v. Mathews, 35 Ark. 147
(1879).

6. Filling up blanks in specialties. — In Massachusetts and a
few other states the hxw is that material blanks in an instrument
under seal, cannot be filled up, after signing and sealing, by an
agent acting under a parol authority, except in the presence of
the grantor or obligor, without a redelivery ; Burns v. L3^nde, 6
Allen 305 ; Basford v. Pearson, 9 Allen 887 ; Skinner v. Brigham,
126 Mass. 132 (1879) ; Upton v. Archer, 41 Cal. 85 ; Preston
r. Hull, 23 Graft. 605 (1873); Arguello v. Bours, 67 Cal. 447
(1885) ; Adamson v. Hartman, 40 Ark. 58 (1882) ; Yiser v.
Rice, 33 Tex. 139 (1870). See, also, State v. Boring, 15 Ohio
507 ; Evarts v. Steger, 6 Oreg. 55 ; Davenport v. Sleight, 2
Dev. & B. 381 ; Bragg v. Fessenden, 11 HI. 544 ; Cummins v.
Cassilly, 5 B. jNIon. 74 ; Williams v. Crutcher, 5 How, (Miss.)
71; Lockwood v. Bassett, 49 Mich. 546 (1883). A deed of
conveyance is operative as to all parties who have properly exe-
cuted it, though invalid as to others ; Furnass v. Durgin, 119
Mass. 501 (1876.) In two very recent Massachusetts cases,
the doctrine of Burns v. Lynde has been modified, where the
grantee or obligee is ignorant of the defective filling up of the
blanks; Phelps v. Sullivan, 140 Mass. 36 (1885); White v.
Duggan, id. 18. The former case was in regard to the assign-
ment of a mortgage. " When a grantor signs and seals a deed,
leaving unfilled blanks, and gives it to an agent with authority
to fill the blanks and deliver it, if the agent fills the blanks as
authorized, and delivers it to an innocent grantee without
knowledge, we think the grantee is estopped to deny that the
deed as delivered was his deed." Morton, C. J., in Phelps v.
Sullivan. Pence v. Arbuckle, 22 Minn. 417 (1876) accord;
Preston v. Hull, 23 Graft. 605, semhle, contra. White v. Duggan
goes much farther, and decides that where the penal sum of a
probate bond is filled in by the principal in a greater amount
than the surety, who executed the bond in blank, has author-
ized, the surety is estopped, where the obligee is ignorant of the
fact, to deny not only the validity of the execution of the bond,
but also the authority of the agent. The language of the court,
however, is very guarded, and except in the case of official
bonds, it seems that they would hardly carry the doctrine of

1158 MASTER V. MILLKK.

estoppel in pais so far. In Phelps i*. Sullivan this point is ex-
pressly left undeeided. Hut in Owen v. Perry, 2o la. 412, and
Field V. Stagg, 52 Mo. 534 (1873), it was decided that a grantor
who executed a deed of conveyance containing material blanks,
was estopj)ed as to an innocent grantee, where the agent had
deviated from liis authority in filling up the Ijlanks. See, how-
ever, Hammerslough v. Cheatham, 84 Mo. 1^) (18S4).

In the other states the strict technical rule is repudiated,
and the law is that an agent under a parol authority may, after
execution by the principal, till up material blanks in a deed ;
nuncan v. Hodges, 4 McC'ord (S. C) 137 ; Wooly v. Constant, 4
Johns. 54; Kerwin's case, 8 Cow. 118; Wily /'. Mooie, 17 S.
& R. 438; White v. Verm. & Mass. Railroad, 21 IIow. 575;
South Berwick f. Huntress, 53 Me. 80; Van Etta ik Evenson,
28 Wis. 33 (1871); Swarz v. Ballon, 47 Iowa 188 (1877);
Garland v. Wills, 15 Neb. 298 (1883) ; Allen v. Withrow, 110
U. S. 119 (1884.)

Many courts, however, have been inclined to narrow the
application of this doctrine as much as jiossiltle. In Allen
V. W'ilhiow, supra, Mr. Justice Field, while recognizing the
general priniiple, says: "One condition essential to make a
deed thus executed in blank operate as a conveyance of the
property described in it, is that the blank be tilled before, or
at the time of the delivery of the deed to the grantee named."
Chauncey v. Arnold, 24 N. Y. 330 ; Whittaker v. Miller, 83 111.
381 (1876), accord. In the former case, liowever, two of the
judges thought that a mortgagee, if authorized by a previous
parol authority, might fill up a material blank in a mortgage,
even after delivery, and such was the decision in Vleit v. Camp,
13 Wis. 198, in reference to a warrant of attorney. See, also,
Devin v. Himer, 29 Iowa 297 (1870.)

In Simms v. Hervey, 19 Iowa 273, Dillon, C. J., thought that
this doctrine should be confined to bonds, but this distinction is
not borne out by the authorities. In this case it was decided,
however, that where none of the blanks in a printed form of a
deed of conveyance are filled up before execution, the instru-
ment does not become operative by the subsequent filling up
of the blanks by an agent under a parol authority ; and it is
believed that it has never been decided that such a deed of
conveyance woidd be operative. It seems, however, diflicult
on principle to distinguish between filling up all the blanks in

MASTER V. MILLER. 1159

a printed form and the filling up of one material blank. In
most of the cases in regard to deeds of conveyance, the blank
has been for the name of the grantee ; and it is held that this
blank may be filled up by an agent under a parol authority
with the name of any purchaser he may be able to secure. In
Schintz V. McManamy, 33 Wis. 299 (1873), it was held that the
deed would be invalid, when, the agent was authorized to fill
up the blank with the name of a specified grantee, but wrote
in the name of a different grantee. But see cases cited supra
as to estoppel. In some of the states it has been decided that
an implied authority to fill up blanks is sufficient; South
Berwick v. Huntress, supra ; Drury v. Foster, 2 Wall. 24 ;
Clark V. Allen, 34 Iowa 190. But see Chauncey v. Arnold,
supra; United States v. Nelson, 2 Brock. (C. C.) 64; Smith v.
Fellows, 9 Jones & Sp. (N. Y.) 36 (1876), contra.

7. Alteration of contracts under seal by consent of parties. —
In Speake v. United States, 9 Cranch 28, it was decided that
an official bond, altered in a material part by the obligee after
delivery to him, with the oral consent of the obligor, was bind-
ing in its altered form, Livingston J., dissenting. See, also,
Barrington v. Bank of Washington, 14 S. & R. 405 ; Camden
Bank v. Hall, 2 Green (N. J.) 583. In Sans v. The People,*
8 111. 327, it was held that a previous assent was necessary to
make the bond binding in its altered form. In Drury v. Foster,
2 Wall. 24, Nelson, J., says : " Although it was at one time
doubted whether a parol authority was adequate to authorize
an alteration or addition to a sealed instrument, the better
opinion at this date is that the power is sufficient." In Howe
V. Peabody, 2 Gray 556, a probate bond altered by parol
authority after delivery, was adjudged binding in its new form,
on the authority of Speake v. United States. In this case, how-
ever, the evidence showed a redeliver3^ See, also, opinion of
Parsons, C. J., in Smith v. Crooker, 5 Mass. 538. And this
yeems to have been accepted as law in respect to alterations in
bonds, in all the states where the question has arisen.

But the doctrine that contracts under seal ma}^ be altered or
changed after they have become operative by delivery, by the
parol authority of the obligor, witliout a redelivery and in his
absence, has never been extended to deeds of conveyance, and
the statutes of the several states in regard to the formalities
necessary for the transfer of land, would probably be considered

11»;0 MASTKK V MILl.Ki:.

illi iii>ii[M r;il)l(' (ilistacic. 1 inis m Collins V. Cnllilis, .il Miss.
JJll, it Wiis liild, \vluTf :i tlet'il «»f trust ^'ivfii l»y way «»f in«»it^iij^o
was altiTtMl after delivery ami reconlinjj, so as t<» cover u new
loan, that the altt-ration was int»m'rative withtuit a redelivery,
tilthoii^di the ehan;^'e was entered ujmhi the rerord. Hut in lias-
sett V. liiissett, :')%) Me. 1-7, an unreeorded de»'d of an undivi<led
half of a piece of land, was htdd to convey the whole estate,
when the j^rantor, h>Mj^ after the fust <lelivery, struck <»ut tiio
words "one undivided half of," and redelivered the iuKtrunient.
See also I'rettynian r. (ioodrich, 'J^J 111. '.V.Mi ; (ary i: <)'IIara,
Howe (Irish) f)! ; Keiley v. Ahearne, Batty (Irish) IH (n.).
Even in the case of Ixuids it is hard to understand how on
common law principles they <'an 1m- chani^'ed or altered, without
the same formalitii's which wen- necessary to their incepti<»n.
'• After piifcctinj,' a d«'ed in one form, no material alteration
should he set up, unaccompanietl hy a new delivery, ami a note
or memorandum lhere<»f. . . . 'Ilu' terms in which the deed
is orij^inally executed shouhl alone he hindin^ until alterations
are introduced into it hy the same formalities." Livinj^ton, .1.,
ui dissentinj^ opinion, mipra. The ca.se of Hudson r. Kevett, T)
Binj^. 8t58, often cited in support of the doctrine of Speake v.
■Unite<l States, had reference to the lillin^' up of material hlank.s
in a hoiid after c\c<MitioM, and as the ohlitfor was present wlu-n
the hlanks were tille(l up, tiiere was evi<lence of a reclelivcry.
Some of the dicta of Uest, ('. J., however, went miuh farther
than the di-cision rcipiircd, and are dillicult to reconcile with
the reasonincf (»f Baron I'arke, in Ilihhlewhite r. M'Moiine, G
M. & W. -JOO, which linally established in Knj^dand the rule
that material blanks in specialties could not be filled up by
parol authority; and in this country it does not seem probable
that those courts at least which liave adopted the doctrine of
this latter case, would be inclined to hold that specialties can
be clianged or altered in their terms by parol authority, with-
out a redelivery.

8. Effect of alteration. («) As to deeds of conveyance. — It is
well settled both in England and in this country, that if a deed
of conveyance is materially altered by a party claiming under
it, its past operation is not affected, and titles vested by it are
not disturbed ; Lewis v. Payn, 8 Cow. 71 ; Chessman v. Whit-
temore, 23 Pick. 231 ; Ilerrick v. Malm. 22 Wend. 388 ; AVal-
lace V. Armstead, 41 Penn. St. 492 ; Woods v. Hilderbrand,

MASTER V. MILLER. 1161

46 Mo. 284 ; Wlieeler v. Single, 62 Wis. 380 (1885). See, also,
Burnett v. McCluey, 78 Mo. 676 (1883). In Williams v. Van-
Tuyle, 2 Ohio St. 336, it was held, where a bond given by a
trustee by way of a declaration of trust, was altered by the
cestui que trusty the equitable estate was not divested thereby.
The altered deed may be introduced in evidence to show the
premises conveyed by it ; Hatch v. Hatch, 9 Mass. 307 ; Bur-
nett V. McCluey, cited supi-a.

In those states where a mortgage is considered an absolute
conveyance of the title upon a condition subsequent no altera-
tion will defeat a suit for foreclosure ; Kendall v. Kendall, 12
Allen 92. But in those states where a mortgage is treated as a
mere chose in action or incident to the note, any material altera-
tion of the mortgage or of the mortgage note, will be a good
defence to a foreclosure suit ; and the assignee of the mortgagee
is in no better position ; Waring v. Smyth, 2 Barb. Ch. 119 ;
Marcy v. Dunlap, 5 Lans. 365 (1872) ; Mersman v. Werges,
1 McCrary (C. C.) 528 (1880) ; Toomer v. Rutland, 57 Ala.
379 ; Bowman v. Mitchell, 79 Ind. 84 (1881) ; Tate v. Fletcher,
77 Ind. 102 (1881) ; Pereau v. Frederick, 17 Neb. 117 (1885) ;
Johnson v. Moor, 33 Kan. 90 (1885) ; Osborne v. Andrews, S. C.
Kan. Oct. 8, 1887. But it has been decided by several courts
that a mortgage may be foreclosed, when the note has been
altered without fraudulent intent ; Vogle v. Ripper, 34 111. 100 ;
Clough V. Seay, 49 Iowa 111 (1878). Bowman v. Mitchell,
cited supra, contra. And in Plyler v. Elliott, 19 S. C. 257
(1882), it was held that the mortgage might be enforced,
although the note had been fraudulently altered. When a
lessee for a term of years materially alters his lease, it has been
held that the lease is avoided, and that the lessor may enter at
once ; Bliss v. Mclntyre, 18 Verm. 466. See also Burguin v.
Bishop, 91 Pa. St. 336 (1879).

(5) Right to sue on original consideration. — When negotiable
paper, which has been altered by a partj^ claiming under it, is
itself the sole ground of action, not having been given in satis-
faction of a precedent debt or claim, it seems clear on principle
that on a material alteration of the paper, all remedy whatso-
ever is lost. But it is very generally held, where there is a
cause of action independent of the note, which is only tempora-
rily merged thereby, that this is not forfeited, if the alteration
in the negotiable instrument was made without fraudulent in-

1\&2 MASTKlt V, MII.I.KK.

tent; ('lute v. Small. 17 Weiul. 242; Booth v. Powers, 56 N. V.
22 (1S74); Monisou v. Welty, 18 Md. !♦;'.»; Wiiiren r. I.ayton,
3 IliUT. 404; State Saviiijrs iiaiik v. ShatTer, 'J Nel.. 1 (l«Tl«);
Sullivan v. RiuUlisill, G3 Iowa lo8 (1883) ; Wallace v. Wallace,
8 111. AiT[i. G9 (1880); Matteson v. Ellsworth, 33 Wis. 488
(1873); Meyer v. Iluneke, .'>,') X. Y. 41 '» (1«74). But the .sur-
render of the altered instrument is a condition precedent to an
a('tinn on the original consideration, and the note canncjt itself
he put in evidence in such an action. See cases citeil Kiif>ru.
The hurden of proof is uj)on the holder to show that the !ilt«Ma-
tion was innocently made; Kohinson i'. Reed, 4t> Iowa 219
(1S77); Black v. Bowman, 15 III. Ap[). IT.G (1884). But see
Vogle V. Kipper, 34 111. 1<)0. In Morrison v. Iliggins, 53 Iowa
7G, it was held that an action would lie for goods s(jld and
delivered, when a note given for tiie price hy the huyer had
been innocently altered. The only cause of action originally
was upon the note, ami it is hard to understand how even an
innocent alteration can confer a new right ; and this case is
op{)oscd to the great weight of authority. iSnt see \'ogh' ?».
Ripper, supra. In those states where it is held that negotiahle
paper given on account of a precedent claim, is prcsum[)tively
a satisfaction of that claim, it would seem that this presumption
must he rebutted, before the original consideration can be sued
upon ; and it is believed that in Massachusetts and the other
states where the above doctrine is law, it has never l)een ex-
pressly decided that the original consideration can be resorted
to in any ease. In fact there are some strong dicta to the con-
trary ; Martendale v. FoUet, 1 N. H. 99 ; Smith v. Mace, 44
N. H. 553; Bigelow v. Stili)hen, 35 Verm. 525; White r. Ilass,
32 Ala. 430. See, also, Whedock v. Freeman, 13 Pick. 1(55.

(c) Right of holder to restore note to its origiual form. — In
Nevins v. Le (hand, 15 Mass. 43G, where a special indorsement
was innocently erased in order that the indorsee might transfer
the note by delivery without indorsing it, the court allowed the
instrument to be restored to its original form, and held that a
suit might be maintained upon the reformed instrument against
the maker. " Justice requires and the law allows it to be
done." Parsons, C. J. In Horst v. Wagner, 43 Iowa 373
(1876), it was held where a payee, ignorant of the proper
method of transferring the instrument, substituted for his own
name the name of the transferee, and subsequently before

MASTER V. MILLER. 1163

delivery restored it to its original form and then indorsed it,
that the indorsee could maintain an action upon it against the
maker. These decisions may, perhaps, be sustained on the
ground that the alteration was with reference to the transfer
of the title, and in no wise affected the rights of the maker.
But see iyifra as to material alterations affecting the operation
of negotiable paper. In Whitmore v. Nickerson, 125 Mass. 496
(1878), where a maker made a material alteration in a note
indorsed for his accommodation, but restored it to its original
form before delivery to the payee, it was held that the alteration
did not affect the liability of the indorser, since when the
note first became operative it was in the same state as when
indorsed. See, also, Nickerson v. Sweet, 135 Mass. 514 (1883),
which held that a note materially altered by an unauthorized
agent might be reformed in equity.

Kounz V. Kennedy, 63 Penn. St. 187, and Shepard v. Whet-
stone, 51 Iowa 457 (1879), go much further than the cases
above cited, and hold that where the words "with interest"
were added to the face of the note by a holder without fraudu-
lent intent, an action may be maintained thereon on its restora-
tion to its original shape. Sharswood, J., dissented from the
decision in Kounz v. Kennedy, and it has been criticised in
several later decisions of the same court. But see Lynch v.
Hicks, S. C. Ga. Oct. 15th, 1887.

9. Materiality of alteration. — An alteration which changes
the terms of a written contract so as to vary its legal effect
and operation is material ; and the instrument is none the less
avoided because the effect of the alteration is beneficial to the
party to be charged. The destruction of the identity of the
contract in its legal effect vitiates the instrument. See Schwarz
V. Oppold, 74 N. Y. 307 (1878); Osgood v. Stevenson, 143
Mass. 399 (1886), which was a case of the material alteration
of a written contract for the purchase of a book.

(a) Material alterations. — (1) Date and time. — The date and
time of performance of a written contract are essential parts of
it ; hence any alteration in this respect avoids the instrument ;
Master v. Miller, principal case ; Wheelock v. Freeman, 13
Pick. 165 ; Miller v. Gilleland, 19 Penn. St. 119 ; Lisle v. Rogers,
18 B. Mon. 528; Britton u. Dierker, 46 Mo. 592; Brown v.
Straw, 6 Neb. 536 (1876); Taylor v. Taylor, 12 Lea (Tenn.)
714 (1883). See, also, Lemay v, Johnson, 35 Ark. 225 (1879).

1104 MASTKi: V. MILLKIl.

Ami tin- ;ilu Tiition is fatal rVfii tli(Mii,'li tlu- timr of lu'iformaut'e
be exti'M(li<l tla*n.'iiy ; Davis r. .Kiiiiy, I Mt-t. '221; \Vtii»«l v.
Steele, <! Wall. SO; W'vmaii v. Yetmiaiis, «1 III. 408 (lH77);
Rogers v. Vi.sl)ur^'h, «7 X. V. 2'2X (1881). An altenilitm in
tlie ilate of ii elieek avoiils it ; N'anee r. Lowlher, 1 Kx. 1).
17t> (1870); C'niwfonl v. West Side Hank, lOO N. V. 50
(1885). So an alteration in the date of a contraet for the sulo
of ^oocls was iield material in (ietty t'. Shearer, -0 I*ein>. St. 12.
In Stephen r. Cirahain, 7 S, A: K. 505, it w;us ileeide<l where the
date of a note was altere<l to tin- day lK?fore, the note was
avoidi'»l, althoni,d» the note would otherwise have fallen due <tn
Sunilay, so that the elTt-ct would have lu'i-n the siiine. lUit see
Ames V. ('oUhiim, 11 (iray ;'.'.•<». (i was drcidi d that an altera-
tion of tht; date of an indorsi-nient wius immaterial in (irillith r.
Cox, 1 I'l-nn. lilO; hut i^imrr. Si-c, also, on the suhjrrt of altera-
tions in the «late of a eontract, Hamilton r. \\'oo<l, 7" Ind. 30G
(1880), and (iill r. Hopkins, V.) III. App. 74 (18S«;).

(2) Place of performauce. — Adding,', erasing', or ehanj^in^' the
place of payment, is a material alteration of a hill or note; and
the law ill this regard is not afltit«Ml hy the stiitute provisions
existing in many states as to general acieptanees ; Nazro v.
Fidler, 24 Wend. :')74 ; Woodworth r. liaiik of Amerira, 19
John. :l'.»l : Hill '•. Cooh-y, 4t! IV-nn. St. 2.V.« ; \\'hitesides v.
Northern I'.ank, lO liush 5Ul (1874); 'r(M)mrr r. Rutland,
57 Ala. 37*J (1^77;; Townsend v. Star Wagon Co., lO Neh.
615 (1880) ; Cronkhite v. Nebker, 81 lad. IIW (1882); Charl-
ton V. Heed, til Iowa l<)t) (1883). As to drawee's right to
write in a plaee of payment on aecepting the hill, without
discharging the drawer, see Troy City Hank v. Lauman, 19
N. Y. 480 ; Niagara District Hank v. Fairman, 31 Harh. 404.
It was held in Mahairoe Hank v. Dougla.ss, 31 Conn. 170, that
an alteration of the place of date was material.

(3) Alterations in the principal or interest. — Any alteration
in the principal of a written contract tor the payment of money,
avoids it, whether it be increased by the alteration, Uoodman
V. Eastman, 4 N. II. 455 ; Bank of Commerce v. Union Bank, 3
Corns. 230 ; iEtna Bank v. Winchester, 43 Conn. 391 (1875) ;
Batchelder v. White, 80 Va. 103 (1886); Osborne v. Van
Houten, 45 Mich. 444 (1881) (as to a guaranty) ; Johnson v.
Moore, 33 Ivans. 90 (1885) (as to the consideration of a mort-
gage) ; or lessened, Hewins v. Cargill, 67 Me. 554 (1877) ;

MASTER V. MILLER. 1165

State Savings Bank v. Shaffer, 9 Neb. 1 (1879). In an early
case in Pennsylvania it was held where the amount of a
note was lessened by the principal, after execution by the
surety, and before delivery to the payee, that the note was not
avoided ; but as the identity of the contract is now considered
the test of materiality, this decision seems clearl}^ to be wrong ;
Ogle V. Graham, 2 Penn. 132. In Doane v. Eldridge, 16 Gray,
254, a collector's bond was held to be avoided by an alteration
of the penal sum to a smaller amount.

So any change in the rate of interest, or the addition of the
words "with interest," or similar words, to a non-interest bear-
ing note, avoids the instrument ; Fay v. Smith, 1 Allen 477 ;
Draper v. Wood, 112 Mass. 315 ; Waterman v. Vose, 43 Me.
504 ; Lee v. Stairbird, 55 Me. 491 ; McGrath v. Clark, 56 N. Y.
34 (1874) ; Schwarz v. Oppold, 74 N. Y. 307 (1878) ; Lamar
V. Brown, 56 Ala. 157 (1876) ; Neff v. Horner, 63 Penn. St.
327 ; Craighead v. McLoney, 99 Pa. St. 211 (1881) ; Schnewind
V. Racket, 54 Ind. 248 (1876) ; Brooks v. Allen, 62 Ind. 401
(1878); Bowman v. Mitchell, 79 Ind. 84 (1881); Jones v.
Bangs, 40 Ohio St. 139 (1883) ; Thompson v. Massie, 41 Ohio
St. 307 (1884) ; Ivory v. Michael, 33 Mo. 400 ; Long v. Mason,
84 N. C. 15 (1881) (of a bond) ; Kennedy v. Moor, 17 S. C.
464 (1882) ; Canon v. Grigsby, 116 111. 151 (1886). In Whit-
mer v. Frye, 10 Mo. 348, a bond was held to be avoided by an
alteration which lessened the rate of interest. So where a note
bore interest " at one per cent." and " one " was erased ; Moore
V. Hutchinson, 69 Mo. 429 (1879). So where the words "after
maturity" were added to the interest clause; Coburn v. Webb,
56 Ind. 96 (1877). See, also, Patterson v. McXeely, 16 Ohio
St. 348, and Leonard v. Phillips, 39 Mich. 182. In Woodward
V. Anderson, 63 Iowa 503 (1884), it was decided that the altera-
tion of the rate of interest in a certificate of deposit avoided it.

(4) Alterations in the medium of payment. — The insertion of
words fixing the medium of payment, or the erasure of such
words, is a material alteration ; Darwin v. Rippey, 63 N. C. 318 ;
Laugenberger v. Kroeger, 48 Cal. 135 ; Bogarth v. Breedlove, 39
Tex. 561 ; Wills v. Wilson, 3 Oreg. 308. But it was held in
Bridges v. Winters, 42 j\liss. 135, that the insertion of the words
" in gold " after the amount in a note, was not a material alter-
ation, if gold was the only legal tender. See, also, Hanson v.
Crawley, 41 Ga. 303. In the Supreme Court of the United

1106 MASTKU V, MILLKU.

•
Stiitt's, it \v;is (IcfidtMl, wlit'ie an order \v;is miidt' pnviildf "in
(Init'ts to tlie ordrr of II. (J. A.," Jind tliese woi<ls \vt*ie eiii.sed,
and "in cnirtiit Iniids " inserted in tlieir j»l;ue, that the instru-
iniiit was avoideil ; An^de v. N. \V. ^r. Insniance Co., Uli T. S.
3;}0 (^IhTo). See also MartindaU- r. FoUrt. 1 \. II. 0.') : Schwalm
V. Mclntyre, 17 Wis. 232.

(5) Alterations in respect of parties. — Any eluin<(e in tlio
parties to a lontraet, either as to their perscinality, number, or
thiir lej^ral relations to one another, is a material jilteration.
As to alterations of this description avoidin*; negotiable paper,
see Ilasktdl v. Champion, 30 Mo. 13(1 ; .McCramer »•. 'riiompson,
21 Iowa 244; Davis r. Bauer, 41 Ohio St. 2."^T (lHS4); Morrison
r. (Jarth, 7H Mo. 434 (1.SS3); Rohhinsim v. Herryman, 22 Mo.
App. ")0!» ( l.SSt)). As to Im.ikIs, see Smith v. Weld, 2 l'enii.r)4 ;
State V. I'i.lke, 7 Hlaekf. 27; I)(.lhin r. Ncuton, 17 .Me. 307 ;
Smith V. Iiuted States, 2 Wall. 210; United States v. O'Neill,
V.) Fed. IJep. rj»> (1SS4). hut .see Hale v. Russ, 1 .Me. 334;
Wilmiii<rton & Wel(h)n K. R. ("o. r. Kitehin, l»l N. (.'. 39 (18S4).
As to eontraets of guaranty see Wilde v. Armshy, 6 C'ush. 814.
Striking out the word "surety" appended to the name of one
of two joint makers has been ludd to be a material alteration.
Laub V. Paine, 4») Iowa o')0 (1.S77). Rut wiiere the holder
strikes out llu- iKinir of the surety with his cniist'iit, it has l)een
ludd that the primipal is not discdiarged ; Huntingdon v. Fineh,
3 Ohio St. 44."). Changing a joint note to a joint and several
note, or a joint and several note to a joint note, av(»ids it;
Humphreys v. (Juillow, 13 N. H. SS") ; Draper i*. Wood, 112
Mass. 315; Eekert v. Louis, 84 Ind. Ol> (1«82). And other
written eontraets are avoided in like manner ; Waring v. Wil-
liams, 8 Pick. 322; Kline v. Raymond, 70 Ind. 271 (1880).
But where by statute a joint note has the effect of a joint and
several note, such an alteration is innnaterial ; Miller v. Reed,
27 Penn. St. 244. Adding or erasing the word "junior" is a
material alteration; Broughton v. Fuller, 9 Verm. 373. So
adding the word " collector " to a payee's name ; York v. Janes,
43 N. J. L. 332 (1881). But see Manufacturers' Bank v.
Follett, 11 R. I. 92 (1876), where the word "agent," appended
to a maker's name, was treated as merely descriptio persojice, and
held not to avoid the note.

Effect of the addition of another maker. — As to the addition
of a new maker or surety, the cases are conflicting. The

MASTER V. MILLER. 1167

addition of a new surety by the principal, without the consent
of the first surety, before delivery to the payee, is generally held
to be a material alteration. When the instrument first becomes
operative, it is different in its legal effect from that signed by
the first surety; Whitmore v. Nickerson, 125 Mass. 496 (1878) ;
Hall V. McHenry, 19 Iowa 521 ; Haskell v. Champion, 30 Mo.
136. In Ward v. Hackett, 30 Minn. 150 (1883), it was held,
where the payee was ignorant of the addition of the second
surety, that the note was not avoided thereby. See, also, Snyder
V. Van Doren, 46 Wis. 602 (1879). If a new surety is pro-
cured by the payee or a subsequent holder after delivery by the
maker, it is held in Massachusetts that this constitutes a
collateral and independent contract, and that the note is not
avoided thereby ; Stone v. White, 8 Gray 589. Monson v.
Drakely, 40 Conn. 552 (1873) ; Mersman v. Werges, 112 U. S.
139 (1884), accord. In McCaughey v. Smith, 27 N. Y. 39, and
Brownell v. Winnie, 29 N. Y. 400, it was held that the addition
of a new maker did not avoid the note, and that his liability
was that of a joint and several promisor. Muir v. Demaree,
12 Wend. 468 ; Patridge v. Colby, 19 Barb. 248 ; Card v. Miller,
1 Hun 504 ; Denick v. Hubbard, 27 Hun 347 (1882) ; Miller
V. Finley, 26 Mich. 249 (1872), accord. In the following cases,
however, such an alteration was held to avoid the note ; Chap-
pell V. Spencer, 23 Barb. 534 ; Mc Yean v. Scott, 46 Barb. 379
(overruled in Denick v. Hubbard, suprci) ; Hamilton v. Hooper,
46 Iowa 515 ; Lunt v. Silver, 5 Mo. App. 186 (1878) ; Sullivan
V. Ruddisill, 63 Iowa 158 (1883); Nicholson v. Combs, 90
Ind. 515 (1883). The new surety, however, will be bound ;
Hamilton v. Hooper, supra. As to the addition of a new surety
in a bond avoiding the instrument, see Harper v. The State,
7 Blackf. 61 ; O'Neal v. Long, 4 Cranch 60.

(6) Alterations affecting the operation. — A parol contract is
avoided by the appending of a seal ; Morrison v. Welty, 18 Md.
169 ; United States v. Linn, 1 How. 104 ; Yaughan v. Fowler,
14 S. C. 355 (1880). See, also, Fullerton v. Stm'ges, 4 Ohio St.
529. And it would seem that a specialty must be avoided by
detaching a seal, and it was so decided in Piercy v. Piercy, 5
W. Ya. 199. See, also, Cutts v. United States, 1 Gall. (C. C.)
69 ; United States v. Spaulding, 2 Mas. (C. C.) 478. Where a
seal is appended to the signature of one of several joint prom-
isors, the instrument is avoided as to all ; Biery v. Haines, 5

ll*)8 MASTKIC V. MI1J,EU.

W'liiirt. r>*»'>. -\s to lilt' ftltTl til ria^iii^ ;i >rn»ll, SIT Kcni r.
Al.tiuof, 7.') Vji, 4'1A ( ISSl).

The addition of witnesaes. — As tu llu' I'fffft of aiMiii^ to
wiittt'ii coMtructs llu- iiiiiiu's of piirtii's purporting' to U- wit-
nesses thereto, it is held, uheri' if attestetl they are atYeeled hy
no Htatutu of liniitaticMis, that the alteration is innnaterinl, and
(hies not avoi<l the instrnnicnt unh'ss made with franduh-nt
intent; A<hinis r. Frye, '.\ Mit. !<•;> (as to iNtnds); Uhiekwell r.
Lane, 4 Dev. A: H. (N.C.) L. llo. Hut in FuUer r. (ireen,
• •I Wis. 159 (l8Hr>), as to notes (there U'in^ n«» statute of
limitations in rej^Mrd to attested notes), it was tUu'ided that
a note was not avoich-d hy such an altt-ration, thoui,di niadi* witlj
frau(hiltiit iiiicii). I'ut see Mai-shall r. (iouj^der, lOS.vV U. hJ4.
W'iieii! then- is a statute of limitations e»»nrernin^' attested
notes, sueh an alteration avoids tiu- instrument; Homer t*.
Wallis, 11 Mass. :WJ; Kddy r. l5oiid, !'.• M.'. 4«;i ; and it w.mld
seem that the (|U(stif»n of intent would U- irrelevant ; hut it ha.s
hcen decided, that if the attesting witness was netually present
when the note was executed, that such an alteration tloes not
avoid it; Rollins r. hartlett, 20 Mv. 'M\^ : Thornton r. Apple-
ton, -JU Me. liUH; Milhcrry v. Storer, To Me. (IH (1SS:i). See,
also. Smith v. Dunham, S Pick. J">t>. In I''ord r. Ford, IT I'ick.
418, it was held that the addition of a second witnt'ss to an
attested note did not avoid it. See, also, Willard '•. ("lark,
7 Met. 4:'.;"); ("hurch r. Fowle, 14i! .Mass. 82 (ISS*',). in Sharpo
V. Hajj^well, I l)ev. l".(i. llo, wheie a payee cut otT the name of
an attestint,^ witness, it was held that the note was avoided.

It has heen held, where words are adih-d to the j^eneral con-
sideration clause in a note, deserihinLf the special consideration,
that the note is avoided; Knill r. \\'illian>s, 10 East 418; Low
IK Argrave, 80 CJa. 125'. Addinj^ words of ne£fotiahility t(t a
non-negotiable note avoids it; Brute v. Westcf)tt, 8 Harh. 274;
Johnson v. Bank of United States, 2 15. Mt»n. 310; State v.
Stratton, 2T Iowa 424. See. also, lloUis c. N'andergrift, o Del.
521 ; :\IeCoY V. Lockwood, Tl Ind. 819 (1880). In Byrom v.
Thompson, 11 Ad. & Kl. ^U. it was held that such words might
be inserted Avliere they had been omitted by a mutual mistake.
The substitution of the words " or bearer " for the words "■ or
order " in a note is a material alteration ; Belknap v. National
Bank of America, 100 Mass. 8T6 ; Union National Bank v.
Roberts, 45 Wis. 3T3 ; Booth r. Powers, oi^ N. Y. 22 (18T4) ;

MASTER V. MILLER. 1169

Needles v. Shaffer, 60 Iov^^a 65 (1882). But in Weaver v.
Bromley (Mich.) 31 N. W. Rep. 839 (1887), it was adjudged
that writing in the words " or bearer " without the erasure of
the words "or order" did not avoid the note. In Flint v.
Craig, 59 Barb. 330, it was decided that it was not a material
alteration to change a note payable to bearer to one payable to
order. In Stoddard v. Penniman, 108 Mass. 366, where a note
payable to the maker's order, and indorsed in blank for his
accommodation, was altered by the maker so as to be payable
to the plaintiff who advanced money upon it, the court decided
that the indorser was discharged, since his liability was thereby
changed from that of an indorser to that of an original prom-
isor. See, also, Davis v. Bauer, 41 Ohio St. 257 (1884). In
Grimes v. Piersol, 25 Ind. 246, where an indorsee, without the
consent of the indorser, substituted for his own name in the full
indorsement the name of a transferee, it was held that the
indorser was not liable to such transferee. But see sujrra as to
the restoration of altered instruments. See, also, Mechanics'
Bank V. Valley Packing Co., 70 Mo. 643 (1879). Filling up a
blank indorsement contrary to the tenor of the bill is a mate-
rial alteration; Hirshfeld v. Smith, L. R. 1 C. P. 340. So
adding a waiver of demand and notice to an indorsement;
Farmer v. Rand, 14 Me. 225. But qucere whether the note
would be avoided as to the maker. So even adding the words
" without recourse " to an indorsement discharges the indorser ;
Luth V. Ste^yart, 6 Victorian Rep. 383. The insertion or oblit-
eration of a material memorandum, whether written in the body
of the instrument, or in the margin, or indorsed upon it, is a
material alteration ; Warrington v. Early, 2 El. & B. 763 ;
Gerrish v. Glines, 56 X. H. 9 (1877); Johnson v. Heagan,
23 Me. 329 ; Woodworth v. Bank of America, 19 John. 381 ;
Benedict v. Cowden, 49 N. Y. 396; Wheelock v. Freeman.
13 Pick. 165 ; Wait v. Pomeroy, 20 Mich. 425 ; Blake v. Cole-
man, 22 Wis. 415 ; Price v. Tallman, 1 N. J. Law 447. See,
also, Johnston v. May, 76 Ind. 293 (1881). As to immaterial
memoranda, see infra. In Dietz v. Harder, 72 Ind. 208 (1880),
it was held that the material alteration of an instrument in suit
avoided it. See, also, Rhoades v. Castner, 12 Allen 130.

(b) Immaterial alterations. — The addition, or striking out, of
words in a Avritten contract does not avoid it, if the legal effect
remains unchanged. Thus writing in the name of the bank

117<» MASTKU V. MlLLKi:.

after llie Wind " LiislutT," apiu'iitled to si^^niature on a iiotf ; Bank
of (lenesee v. Patchin Hank, '\ Kern. 300. See, al.s(>, Mannfac-
turers' Jiank v. Folk-tt, 11 l{. I. i>2. So tiittin^r off tlie word
"trustees " ai)i>en(Ie(l to the si<^natures of the makers of a note,
since their liahility was not uffeeted thereby ; Hurlinganie v.
Brewster, 79 III. 51') ; Hayes v. Matthews, «):{ In. I. \\-2. So sul>-
stitutinp the firm styh' for the words " Provich'nee Sieam Co.,"
when the j»arties did l)nsiness under Indh nanjes ; Arnohl r.
Jones, 2 U. I. 34;'). So achMnj^ tlie Christian name of the <lrawer
of a hill; lilair v. Hank of Tennessei*, 1 1 IIniii[ih. S4. So the
interlineation of the surname of the j)ayee ; .Manehet r. Cason,
1 Hrev. 307. So clmn^inu^ the Christian nanie of payee so jis
to conform to the fact ; Deshy r. Tiirall, 44 \'erm. 414. So
crossing'' out the middle h-ttt-r of payee's name whii-h had ])i'en
accidentally inserted ; Cole r. Hills, 44 N. H. 227. Retracing
fiuled name in clear ink; Dunn »•. Clements, 7 Jones (N. C.)
Law ')8. See also Reed r. Roark, 14 Tex. 321» ; Turner v. Bella-
gram, 4<) Mo. 4<»4. So an att«nipted nhliteration in lead pencil;
Chase V. Washington Insurant*' Company, 12 Bail). ')•.»."). So
writiiii^'in the wonls "'an*! exeiut«'(l '* after the word "signed;"
Langtlon v. Raul, 20 \'erm. 217. An alteration in the marginal
numhers of negotiable bonds is held to be immaterial; Com-
monwealth V. Kmigrant Industrial Bank, '.»<s Mass. 12; Bersdell
V. Russell, 21» N. V. 220; City of Elizabeth v. Force, 20 N. J.
Eq. i)i)\. But the alteration of the lunnber of a Bank of Eng-
land note was held to be material ; Suffell r. Bank of England,
9 Q. B. I). ;'>;")') (1882). It is an immaterial alteration to change
the marginal tigures of a note so that they shall conform to the
written amount; Smith v. Smith. 1 R. I. 308. S<j the insertion
of dollar mark before marginal tigures; Houghton r. Francis,
20 111. 244. So adding words to a deed of conveyance which
simply express the legal effect of the instrument; lirown v.
Pinkham, 18 Pick. 172; Sharpe v. Orme, »il Ala. 203. So writ-
ing in such words in a note ; Scott v. Calkin, 130 ]Miuss. 529
(1885). See, also, Belden v. Hann, 61 Iowa 42 (1883). So
filling up immaterial blanks in a deed, or interlining or altering
immaterial words ; Vose v. Dolan, 108 Mass. 155 ; Ilarsky v.
Blackmarr, 20 Iowa 171; Burnliam v. Ayer, 35 N. H. 351;
Gordon v. Sizer, 30 ]Miss. 805 ; Crawford v. Dexter, 5 Sawyer
(C. C.) 201. So inserting the Christian name of the party by
whose land the granted premises are bounded ; Hatch v. Hatch,

MASTER V. IVnLLEE. 1171

9 Mass. 307. So substituting for tlie name of the sheriff as
obligee of a bail bond, the name of the constable who served
the writ. Hale v. Russ, 1 Me. 334. So writing in mere sense-
less words. Thus in Granite Railway Co. v. Bacon, 15 Pick.
239, the payee of a note indorsed in blank, wrote the name of
the accommodation indorser over his own name, and it was held
to be an immaterial alteration. "As mere senseless words,
written on a subsisting instrument complete in itself, they did
not affect the terms, the effect, or the identity of the contract."
Shaw, C. J. Compare Weaver v. Bromley (Mich.) 31 N. W.
Rep. 839 (1887). The insertion of the name of the obligor in
the body of the bond after execution is an immaterial altera-
tion ; Smith V. Crooker, 5 Mass. 538; Wilder v. Butterfield, 50
How. (N. Y.) 385; Bird v. Bird, 40 Me. 398. An alteration
made to correct a mutual mistake is generally held to be imma-
terial. But see Taylor v. Taylor, 12 Lea (Tenn.) 714 (1883),
contra. Thus changing the date to correspond with the inten-
tion of the parties ; Duker v. Franz, 7 Bush 273. But see
Bowers v. Jewell, 2 N. H. 543 ; Hamilton v. Wood, 70 Ind. 306
(1880); Gill V. Hopkins, 19 111. App. 74 (1886). See in sup-
port of this principle, Clute v. Small, 17 Wend. 242 ; Connor
V. Routh, 7 How. (Miss.) 176; Hunt v. Adams, 6 Mass. 519;
Boyd V. Brotherson, 10 Wend. 93 ; Pease v. Dwight, 6 How.
190 ; Harvey v. Harvey, 15 Me. 357 ; McRaven v. Harve}^ 53
Miss. 542. In Rhodes v. Castner, 12 Allen 130, where a party
to a contract for the sale of goods added his own signature to a
memorandum signed by the other part}-, it was held that the
alteration was immaterial.

Mere explanatory memoranda written on an instrument do
not avoid it. Thus, "left with Mr. B. as collateral," indorsed
upon a note ; Bachellor v. Priest, 12 Pick. 399 ; so " subject
to a contract made"; Gushing v. Field, 70 Me.V50 (1880).
See also Struthers v. Kendall, 5 Wright 214 : Hubbard v.
Williamson, 5 Ired. 397 ; Warlter v. Cubley, 2 Cr. & M. 151.
So a memorandum of an independent and collateral agree-
ment is immaterial. Thus in Cambridge Saving's Bank v.
Hyde, 131 Mass. 77 (1881) it was held, where a payee indorsed
upon a note an agreement with the principal that after a cer-
tain date the rate of interest should be less, that this was
merely collateral to and independent of the note, an(J that the
surety would not be discharged thereby. See, also, Stone v.

117J MASTKl: V. MILLKU.

White, H (Jray ')S1> ; 'riuiuiRr i: Wt'iin>liill, H Lrij;li (\'ii.) G2 ;
Hobiiisoii «'. l*li«i'Mix Iiismunro Co., 2.') lowii AM); Kroiich v.
Slionz, ol Wis. •J(>4 ; .liuksnii v. Boyles, i'A Utwn 428. In
Diexler v. Smith, 30 Vvd. \lv[). 7/>4 (IH87), this piiiuiple wiw
exteii(h<l to ;i iiu'inoiiinduiu «)f extension of time of |tiiyn)ent
wiitttii nil the fine ()f tlie note; anil in Mj)ore r. Macon Savings
Bank, 2- Mo. Aj»p. Os4 (1SS«;), the «h'eision was to the sanio
effect, wlicre a simihir memorandum was indorsed upon the
note. Ill LittK'tichl r, Coumhs, 71 \1< . ll'» (lss<»), this prin-
ciple was even applicil to ;i memorandum of a j^Tcater rate of
interest written on tlu' note with the c<»nsent of the principal,
and till! surety was lu Id not to U' rjiscliar^ed. Compare Xiek-
eison V. Sweet, 13.5 Mass. 514 (1KS8). It lias Ihmii hehl that
the cuttini; off of a receipt from a ImukI tloes not av«tid the
instrument; (ioodfellow v. Insler, 12 N. .1. Va\. .Soo ; Simms
V. Pas( hall, ;■) Ind. Law 27»;; Hiyaii >: Dyer, 28 III. 1H8. See,
also, Warner v. Sjhucci, 7 .1. .1. Marsh. 340; hut in Ilert v.
Ochlrr, 80 Ind. S3 (Issl), ii was litdd that the erasure of an
indorsciiiciil i>\' payment (»f interest avoided the note. See, also,
Johnston v. .May, 7«; In<l. 2".»3 (1881 ). As to immaterial alti-ra-
tions in subscriptions of stock see Whitth'sey v. Franz, 74 N. V.
61>7. As to immateiial alterations in policies of insurance see
Robinson v. IMnenix Insurance Co., 2.") Iowa 430; Martin v.
Insurance Co., lol N. V. 4!»8 (188t;).

10. Bona fide holders of negotiable paper. Estoppel. — The
general principle is well established that the material alteration
of neq;otiable paper avoids it, even in the hands of a sukscfjuent
innocent holder, and althoui,di tlu' alteration cannot be discov-
ered bv the (dosest inspection ; and in ri'i,Mrd to altered pa[)er,
bond fi'/t' puridiasers for value and innocent pavi-cs stand on pre-
cisely the same footing; Agawam liank v. .Sears, 4 (iray l>5 ;
Wade V. WIthington, 1 Allen 5t)l ; Adair v. England, 58 Iowa
314; .Etna Hank v. Winchester, 43 Conn. 3in ; Hank of Ohio
Valley v. Lockwood, 13 W. \'a. 392 (1878) ; Savings Hank v.
Shaffer, 9 Neb. 1 (1879) ; Suffell r. Bank of England, 9 Q. B.
D. 555 (1882) ; Hert v. Oehler, 80 Ind. 83 (1881) ; Jones v.
Bangs, 40 Ohio St. 139 (1883); and most courts follow the
views of the majority of the court in Master v. Miller in hold-
ing that a recovery cannot be had upon the instrument even in
its original shape: Draper ?'. Wi^od. 112 Ma<^. 315; Citizen's
Bank v. liichmond, 121 Mass. 110 (1876), and cases cited supra.

MASTEE V. MILLER. 1173

See, however, Worrall v. Gheen, 39 Penn. St. 388, contra^ and
cases cited supra as to alterations by the maker of a note being
treated as acts of spoliation.

When negotiable paper is delivered in an incomplete shape
the law is that innocent holders, both payees and purchasers
for value, may recover, though the blanks have been filled
up contrary to the instructions of the party to be charged ;
Putnam v. Sullivan, 4 Mass. 45 ; Androscoggin Bank v. Kim-
ball, 10 Gush. 373 ; Violette v. Patton, 5 Granch 142 ; Bank of
Pittsburg V. Neal, 22 How. 96 ; Rainbold v. Eddy, 34 Iowa 440 ;
Abbott V. Rose, 62 Me. 194; Smith v. James, 32 Ind. 202;
Redlich v. Doll, 54 N. Y. 234 ; Overton v. Mathews, 35 Ark.
147 (1879) ; Wessell v. Glenn, 108 Penn. St. 104 (1884). In
Snyders v. Van Doren, 46 Wis. 602, the court held, where a
blank note was signed by a surety, and a new surety was pro-
cured by the principal, and the instrument was filled up as a
joint note, that the first surety was not discharged. In Holmes
V. Trumper, 22 Mich. 427, Avhere a blank for the rate of interest
was filled up, the note was held to be avoided, even in the
hands of a subsequent innocent holder. So Gharlton v. Reed,
61 Iowa 166 (1883), and Gronkhite v. Nebeker, 81 Ind. 319
(1882), where a blank for the place of j^ayment was filled up.
But it is hard to defend these cases either on principle or
authority. If a bill or note is partly filled up, any alteration in
the part so filled up avoids it ; Ivory v. Michael, 33 Mo. 400 ;
Ives V. Farmers' Bank, 2 Allen 236 ; Angle v. Northwest Mutual
Life Insurance Gompany, 92 U. S. 330 (1875) ; Luellen v. Hare,
32 Ind. 211. See, also, Weyerbauser v. Dun, 100 N. Y. 150
(1885). And in McGrath v. Glark, 5Q N. Y. 34, it was held
that a note was avoided, even as to subsequent innocent holder,
when in a blank for the place of payment were inserted the
words " with interest."

When the instrument as executed is complete, and blank
spaces left between the words are fraudulently filled up, the
generally accepted doctrine is that the principle of estoppel
cannot be invoked in behalf of a subsequent innocent holder ;
Greenfield Bank v. Stowell, 123 Mass. 196; Gape Ann Bank v.
Burns, 129 Mass. 596; Redlich v. Doll, 54 N. Y. 34; McGrath
V. Glark, 5Q N. Y. 34; KnoxviUe Bank v. Clark, 51 Iowa 264;
Washington Bank v. Ekey, 51 Mo. 272; McGoy v. Lockwood,
71 Ind. 319 (1880) ; Fordyce v. Kosminski, 3 S. W. Rep. 892

117 1 MASTKU V. .MIl.LKl:.

(Ark.) (1887). See, iil.S(), linlau'S r. 'rruiiiiui-, Cluirltoii r. Reed,
and ("loiikiiito v. Nelieker, cited nupra. Tlie f«»lli)wiii^ ciuieM,
however, ail(ti»t tlie i)riiiei|)le of estoppel ; I'ii^an v. Wylie, 1
Ross, Leudin^' Cases, 140; Isnard v. Torres, lO I^a. An. 103;
(larrard i\ Iladden, ♦JT I'eiui. St. 82; lUakey v. .lolmson, 13
IJii>li 197 (1877); Yoeuia r. Smith, 03 111. 321 (1872). This
dotlriiie has also Ix-en applied to the severiiii,' of nieiuoraiida easy
to l)e delaehed; Zimineiinaii v. Rote, 7o iViiii. St. ISS (1.S74);
Noll V. Smith, «; I In.l. .".I I (1878). See, also, hrowii r. Rred, 70
Peiiii. St. 370 (ls7o). Hut si-e Wait v. l'omert»y, 20 Mich.
42o ; iieiiediet r. Cowih'ii, 41» N. V. '.VM)\ Palmer v. Sargent, 5
Neb. 225 ; Davis v. Henry, 13 Nei). 41>7 (1882), contra. So, also,
nejjotiahle paper has heeii lu-ld not to he uvoide«l in the hands
of a suiiseijuent innocent holder, hy the erasure of conditions
written on the instrument in pencil; Harvey f. Smith, oo III.
224. Sec also Seihill v. \'auj^han, GU 111. 2.")7. Young r. Grote,
4 Hing. 2o:'., is largely resjM»nsilile for this <langerous extension
of the doctrine of estoppel. I''or explanations of this rase see
the opinion of ('ockl)uni, ('. J., in S\v;ui v. Australasian Co., 2
U. *S: C. 17r>: also Halifax I'nion v. Wheelwright, L. R. lo Kx.
1S3. 'i'lif facts of Yi>ung v. (irote were [»ecnliar. First, the
altered instnuiicnl was a check; second, the addition was nnnle
hy a conlidcntial clerk, who had Ix-i'n alloweil hy the drawer to
till n[> the check, so that any alterations or additions mad*- after-
wards would l)e in tlu' same handwriting. In commenting U[)on
this case in Crcentiehl Bank v. Stowell, cited »»//>rrt. Gray, C. J.,
says: "" If tlic negligence of the customer affords opportunity to
a clerk or other person in his employ, to add to the terms of a
draft, and thereby mislead the hanker, the customer may well he
held liable to the banker. But even as between customer and
banker, the former has not been held liable for an unauthorized
alteration or acldition l)y a stranger; ami that the signer of a
note complete upon its face, and not entrusted by him to any
person for the purpose of being lilled up or added to, but after-
wards altered without his authority or assent, by the insertion
of additional words in blank spaces therein, should be held lia-
ble to an action on the note in its altered form, is unsupported
by any English cases, and is opposed to the weight of tlie
American authorities." In a very recent New York case, Craw-
ford V. West Side Bank, 100 X. Y. 50 (188.5). it was held that a
check was avoided by a material alteration made by a confiden-

MASTER V. MELLER. 1175

tial clerk to whom it had been entrusted. See, also, Belknap v.
Bank of America, 100 Mass. 376.

11. Legal presumptions and burden of proof. — In a note of this
kind it is perhaps unnecessary to do more than cite a few of
the later and more prominent decisions upon a branch of the
law of evidence which presents the greatest difficulty, and in
regard to which there is so much disagreement among the
courts of the various states. In England and Massachusetts
the law is, that where there is an apparent alteration on negoti-
able paper or other parol contracts, tlie burden of proof is upon
the plaintiff to show that the alteration was made before, or
contemporaneousl)^ with, the execution of the instrument, but
that there is no presumption of law as to the time when the
alteration was made; 2 Taylor on Evidence, § 1819 (8th edi-
tion) ; Norwood v. Fairservice, Quincy, 189 ; Wilde v. Armsby,
6 Cush. 314 ; Ely v. Ely, 6 Gray 439 ; Newman v. Wallace, 121
Mass. 323 (1876). In Massachusetts it has been decided that
it is not incumbent upon the plaintiff to explain an alteration
before the introduction of the instrument in evidence, and that
proof of the defendant's signature establishes a prima facie case ;
Davis V. Jenny, 1 Met. 221 ; Agawam Bank v. Sears, 4 Gray
95. In Ely v. Ely, 6 Gray 439, the court say : " The alteration
may be of such a character that the plaintiff may safely rely
upon the paper itself and the subject-matter as authorizing the
inference that the alteration was made before the execution,
or he may introduce some very slight evidence to account for
the apparent interlineations." In Simpson v. Davis, 119 Mass.
269 (1876), Endicott, J., says: "The same rule applies as
where a want of consideration is relied on as the defence to a
promissory note ; the burden of proof is on the plaintiff, upon
the whole evidence, to establish that fact." But where it
appears on inspection that the alteration was made after execu-
tion, the jury ma}" so infer notwithstanding the proof of signa-
tui'e, and without the introduction of an}- evidence on the part
of the defendant to show that the alteration was made after
execution ; Wilde v. Armsby, supra. It has been held by the
United States Supreme Court and the courts of several of the
states that there exists a presumption of law that the alteration
was made after execution ; United States v. Linn, 1 How. 104 ;
Simpson v. Stackhouse, 9 Barr 186 ; Hills v. Barnes, 11 N. II.
395; Dow v. Jewell, 18 N. H. 356; Miller v. GiUeland, 19 Pa.

117^3 MASTKi: v. mim.kr.

St. 110; Nfff /•. III. 111. 1, <■>;'» I*a. St. ol'7 ; ;iinl ili;ii tin- ultrnition
must Ih> exi>l;iini(l Ixforf tin* instruiiifiit ran 1k' iiitrodiiciMl in
evidence; Biirj,Miin v. lii>ilioj), 91 I*a. St. HM (1H71»). On the
otlier hand, it lias lu-fn ludd hy some of our courts that thf hiw
raises a presumption that tlie alteration was made at tlie time
of the j'xeeution, and tliat where no evich-nee whatever is intro
dueed by either side, the verdict shall In* for the plaintiff;
Gooch {'. Bryant, 13 Me. 38»; ; I)o«lj(e r. Haskell, r.l> Me. 429;
Putnam v. Clark, 38 N. J. Eq. 338; Paramore v. Lindsey, 68
Mo. tl3; Johns r. Harrison, 20 Ind. 317; Wilson r. Harris, 35
Iowa r)()7. Tlu! iM'tter rule seems to Ih' that the question of
the time of the alteration is for the jtny upon all the evi-
<lence in the case, Kuth intrinsii? and t-xtrinsie, and that there
are no [)resumptions of law either way ; hut that the liurden
of jiroof is upon the plaintiff to show that the paper declared
upon was duly executed in manner and form as .set forth in tlie
declaration. This, as has In-en seen, is the law prevailing; in
Knt,dand and Massachusett.s, and it is recoj^nized hy the majority
of the courts of the I'luted States; IU>aman v. Kusstdl, 20
Venn. 20.-,; CunilHMland Hank r. Hall, 1 Halst. 2i:>; Tyree r.
liives, .")7 Ala. 173; Chism r. Toomer, 27 Ark. 109; Corcoran r.
Doll, 32 Cal. 89; Haydcn r. (Joodnow, 39 Conn. VU -, Warren
V. Lay ton, o Ilarr. (Del.) 404; Planters' Hank r. Irwin, :'.! Ca.
371; .McAllister r. Avery, 17 III. App. r.08 (188;",); Neil v.
Case, 2;") Kan. 510; Kllurt r. McClelland, 8 Bush r)77 : Willett
V. Shepard, 34 Mieh. loCi; Wilson r. Henderson. 17 Miss. 375;
Bank r. Morrison, 17 Neh. 341 ; Pease v. Barnett, 27 Hun 378;
Rogers v. Voshurgh, 87 N. Y. 228 (1881); Keen v. Monroe, 75
Va. 424 (1881).

In England and many of the states of this country, it is
held that alterations in deeds are presumed to have been made
before or contem[)oraneously with execution, and that the bur-
den of proof is upon the defendant to prove that they were made
subsequently; 2 Taylor on Evidence, § 1819 (8th edition);
Doe V. Catomore, 16 Q. B. 745: Cox v. Palmer, 1 McCrary,
431 (1880); Little v. Tlerndon, 10 Wall. 26; Den v. Farlee,
21 N. J. L. 279; Gordon v. Sizer, 39 :\Iiss. 805; Sharpe v.
Orme, 61 Ala. 263; Stiles v. Probst, 69 111. 382; Feig v. Meyrs,
102 Pa. St. 10 (1881) ; Letcher v. Bates. 6 J. .T. Marsh. 524.
But in Massachusetts and some other states no distinction is
made between alterations in deeds and alterations in parol con-

MASTER V. MILLER. 1177

tracts; Ely v. Ely, 6 Gray 439; Prevost v. Gratz, Pet. (C. C.)
364; Herrick v. Malin, 22 Wend. 388; Acker v. Ledyard, 8
Barb. 514; Dow v. Jewell, 18 N. H. 340; Dolbier v. Norton,
5 Shepl. 307; Van Horn v. Bell, 11 Iowa 465; Deem v.
Phillips, 5 W. Va. 168 ; Galland v. Jackman, 26 Cal. 79 ; Pipes
V. Hardesty, 9 La. Ann. 152.

Alterations in ancient writings and official returns are pre-
sumed to have been rightfully and properly made ; Wilbur v.
Wilbur, 13 Met. 405 ; Shinn v. Hicks, Sup. Ct. Tex. 4 S. W.
Rep. 486 (1887) ; Bell v. Brewster, Sup. Ct. Ohio, 10 N. E. Rep.
679 (1887); Trimlestown v. Kemmis, 9 CI. & Fin. 763; Evans
V. Rees, 10 A. & E. 151.

WAUGII V. CARVER, (^ARVER, AND OTESLER.

MICHAELMAS— VA (,E(). W, C. 11
[UKi-oiti r.ii 2 II. III.. 235. J

A. and li„ xliiiy-agentx at different portu^ enter into an agreement
tu xhtire, in certain proportions, the projitu of' their respective
commigsionif, and the diifcount on tradesmen » bills employed by
them in repairing the ships vonsiyned to them, Jv. By this
agreement they become liable, as partners, to all persons with
tvhom either contracts as nuch ayent, thouyh the ayreement pro-
vides that neither shall be ant^iverable for the acts or losses of
the other, but each for his men.

lie who takes the yeneral profits of a partnership jnitst of necessity
be muile liable to the loxses ('i).

He who lends his name as a partner becomes.^ as ayainst all the
rest of the world, a partner.

Tins action of assumpsit for goods sold and delivered, work
and lalxtur done, &C., was tried at Guildhall, l)t'fore the Lord
Chief .lustiee, when a verdict was found for the plaintifT, sul>
ject to the opinion of the Court on a case which stated —

That on the 24th February, 1790, the defendants duly exe-
cuted articles of agreement, as follows: — "Articles of agree-
ment indented, made, concluded, and agreed upon this twenty-
fourth day of Febiiiary, in the year of our Lord one thousand
seven hundred and ninety, l3etween Erasmus Carver and William
Carver, of Go.ywrt, in the county of Southampton, merchants,
of the one part, and Archibald Giesler of Plymouth, in the
couuty of Devon, merchant, of the other part. Whereas the
said Archibald Giesler, some time since, received appointments

(a) [This position is now untenable, see Wheatcroft v. Hickman, post, in

notil.']

1178

WAUGH V. CARVER. 1179

from several of the principal ship-owners, merchants, and in-
surers in Holland, and other places, to act as their agent in the
several counties of Hanipaliire, Devonshire , Dorsetshire, and
Cornwall; and whereas the said Erasmus Carver and William
Carver have for a great number of years been established at
G-osport aforesaid, in the agency line, under the firm of Eras-
mus Carver and Son, and hold sundry appointments as consuls
and agents for the Danish and other foreign nations, and also
have very extensive connections in Holland and other parts of
Europe ; and whereas it is deemed for their mutual interest and
the advantage of their friends, that the said Archibald Giesler
should remove from Plymouth, and establish himself at Goives,
in the Isle of Wight : and the said Erasmus Carver and Wil-
liam Carver, and the said Archibald Giesler, have agreed that
each should allow to the other certain portions of each other's
commissions and profits, in manner hereafter more particularly
mentioned and expressed. Now, therefore, this agreement wit-
nesseth, and the said Archibald Giesler doth hereby for himself,
his executors and administrators, covenant, promise, and agree,
to and with the said Erasmus Carver and William Carver, their
executors and assigns, in manner following (that is to say),
that the said Archibald Giesler shall and will, when required
so to do by the said Erasmus Carver and William Carver, re-
move from Plymouth and establish himself at Coives aforesaid,
for the purpose of carrying on a house there in the agency
line, on his account ; but in consequence of the assistance and
recommendations which the said Erasmus Carver and Wil-
liam Carver have agreed to render in support of the said house
at Co'wes, the said Archibald Giesler doth covenant, promise, and
agree to and with the said Erasmus Carver and William Car-
ver, that the said Archibald Giesler, his executors, administrators,
and assigns, shall and will well and truly pay or allow, or cause
to be paid or allowed, to the said Erasmus Carver and William
Carver, their executors, administrators, or assigns, one full
moiety or half part of the commission agency to be received on
all such ships or vessels as may arrive or put into the port at
Gowes, or remain in the road to the westward thereof within the
Needles, of which the said Archibald Giesler may procure the
address, and likewise one full moiety or half part of the dis-
count on the bills of the several tradesmen employed in the
repairs of such ships or vessels ; and as there have been, for a

IISO WAUGH V. (;Ai:VKIt.

coiisi(k'riil)lu time past, very ^'eiieral coinplaiiits iiuule abroad of
the inalpraetices and impositions tliat liave prevailed at Cou'en
aforesaid, and it being a principal object of the said Erasmus
Carver and William Carver to c-onnteract and prevent sucli,
the said Archibald (Jiesler d(»th further covenant, promise,
and agree to and witii the said Erasmus Carver and William
Carver, that he the said Archibald Oicslcr shall and will use
his utmost diligence and endeavours to prevent ships or vessels
arriving at the east end of the J-slr <>/ Wliflit, from being carrieil
past the port of PortHttwuth to that of Cowvx ; and also to in-
duce the mariners or commanders of such ships or vessels as
may come in at the west end of the island through the Needles^
whenever it is piacticable and advisable, to proceed to Ports-
month, and there put themselves uniler the direction of the said
Erasmus Carver and William Carver, and that he will consult
and advise witli the said Erasmus Carver and William Carver
on and respecting the affairs of such ships or vessels as may
put into and remain at the port of Cuiiu-x under the care of
the said Archibald Giesler, and pursue suih measures as may
appear to the said Erasmus Carver and William Carver for the
interest of the concerned. And whereas one of the causes of
complaint before mentioned is the very heavy charge made at
Coives for the use of warehouses for depositing the cargoes of
ships or vessels, the said Archibald (iiesler doth also covenant,
promise, and agree to and with the said Erasmus Carver and
William Carver, that they the said Erasmus Carver and William
Carver shall be at full liberty to engage warehouses at Coices
aforesaid, on such terms and in such manner as they may think
proper, in which the said Archibald Giesler shall not upon any
grounds or pretence whatsoever either directly or indirectly
interfere. And the said Erasmns Carver and William Carver,
for the considerations hereinbefore mentioned, do hereby cove-
nant, promise, and agree to and with the said Archibald Giesler,
his executors and administrators, that they the said Erasmus
Carver and William Carver shall and will well and truly pay
or allow, or cause to be paid or allowed, to the said Archibald
Giesler, his executors, administrators, or assigns, three fifth
parts or shares of the commission or agency to be received by
the said Erasmus Carver and William Carver, on account of all
such ships or vessels, the commanders whereof may, in conse-
quence of the endeavours, interference, or influence of the

WAUGH Y. CARVER. llSl*

said Archibald Giesler, proceed from Coives to Portsmouth., and
there put themselves under the direction of the said Erasmus
Carver and William Carver, in manner hereinbefore mentioned,
and likewise one and one-half per cent, on amount of the bills
of the several tradesmen employed in the repairs of such ships
or vessels, together with one-fourth part of such sum or sums
as may be charged or brought into account for warehouse rent,
on the cargoes of such ships or vessels respectively ; and also
one-sixth part of such sum or sums as may be charged or
brought into account for warehouse rent on the cargoes of such
ships or vessels as may be landed at Cowes aforesaid : and also
that they the said Erasmus Carver and William Carver, their
executors, administrators, and assigns, shall and will well and
truly pay or allow, or cause to be paid or allowed unto the said
Archibald Giesler, his executors, adininistrators, or assigns, one-
fourth part or share of the commission or agency to be received
by the said Erasmus Carver and William Carver, on account of
all such ships or vessels that may arrive or put into the port of
Portsmouth, or remain in the limits thereof, under the care and
direction of the said Erasmus Carver and William Carver:
and likewise one-half per cent, on amount of the bills of the
several tradesmen employed in the repairs of such ships or
vessels : and in order to prevent any misunderstanding or dis-
putes, with respect to the commission and discount to be paid
and divided between the said Erasmus Carver and William
Carver, and the said Archibald Giesler, and for the better
ascertaining thereof, it is hereby mutually covenanted, de-
clared, and agreed upon between the said Erasmus Carver and
William Carver, and the said Archibald Giesler, that one-fifth
part of the commission or agency on each ship shall and may
be first retained by the party under whose care such ship
or vessel shall be, as a full compensation for clerks, boat hire
and all the other incidental charges and expenses in regard of
such ships or vessels respectively; after which deduction, the
then remaining balance of such commissions or agency shall be
divided between the said Erasmus Carver and William Carver,
and the said Archibald Giesler, in the proportions hereinbefore
mentioned ; and that such commission or agency shall be ascer-
tained by one party's producing to the other true and authentic
copies of the general accounts of each ship or vessel under their
respective care and direction, signed by the several masters of

1182 WAUGII V. f'Ai:VEK.

siicli ships or vessels respectively, iiiid iKitarially authenti-
cated. And it is heiel)y fuitlier covenanted, (h'llarcd, and
agreed upon by and hetwccn tlie said I^rasmus Carver and
William Carver, and the said AiciiihaM (iicslrr, that tins
present contract and agreement shall commence and take elTcct
from the date hereof, and shall continue in full force and virtue
for the term of seven years, during the whole of whiih sai<l
teim the said jjarties, or either of them, shall not upon any
grounds or j)retence whatsoever, directly or indirectly, enter
into, or form any connection, contract, or agreement with any
other house or houses, or with any person or persons whatso-
ever, concerning the i-ommission or agency of ships or vessels
that may during the said term put into or arrive at either of
the before-mentioned ports of Portsmouth or Coives, nor shall
the said Archibald Giesler at tlie ex[>iration of the sai<l term of
seven years, directly or indirectly, establish himself at Gos-
port or Portsmouth, nor on any grounds or pretences whatso-
ever, enter into or form any connection, contract, or agreement
with any house or houses, or person or persons whomsoever at
GoHport or Portsmouth aforesaid. And also that they the said
Erasmus Carver and William Carver, and the said Archibald
Giesler, shall and will meet at Gosport on or about the first
day of September yearl}', for the purpose of examining and
settling their accounts, concerning the said commission lousi-
ness, and that such party from whom the balance shall then
appear to be due, shall and will well and truly pay or secure
the same unto the other i)arty, his executors, administrators, or
assigns, on or before the twenty-ninth day of the said month of
September yearly. And it is hereby likewise covenanted, de-
clared, and agreed, by and between the said Erasmus Carver
and William Carver, and the said Archibald Giesler, that each
party shall separately run the risk of, and sustain all such loss
and losses as may happen on the advance of moneys in respect
of any ships or vessels under the immediate care of either of
the said parties respectively ; it being the true intent and
meaning of these presents, and of the parties hereunto, that
neither of them, the said Erasmus Carver and William Carver
and Archibald Giesler, shall at any time or times, during the
continuance of this agreement, be in any wise injured, pre-
judiced, or affected by an}' loss or losses that may happen to
the other of them, or that either of them shall in anv decfree be

WAUGH V. CARVER. 1183

answerable or accountable for the acts, deeds, or receipts of tlie
other of them, but that each of them, the said Erasmus Carver
and William Carver and Archibald Giesler, shall in his own
person and with his own goods and effects respectively be
answerable and accountable for his own losses, acts, deeds, and
receipts. Provided always nevertheless, and it is hereby de-
clared and agreed to be the true intent and meaning of these
presents, and the parties hereunto, that in case the houses of
either of them the said Erasmus Carver and William Carver
and Archibald Giesler shall dissolve or cease to exist, from any
circumstance whatsoever, before the expiration of the said term
of seven years, that then this present agreement, and every
clause, sentence, and thing herein contained, shall from thence
cease, determine, and be absolutely void, to all intents and pur-
poses whatsoever ; but without prejudice nevertheless to the set-
tlement of any accounts that may then remain open and unliqui-
dated between the said Erasmus Carver and William Carver,
and the said Archibald Giesler, which shall be settled and
adjusted within the space of six months next after the dissolu-
tion of the houses of either of them the said Erasmus Carver
and William Carver and Archibald Giesler ; and also that at
the expiration of the said term of seven years, it shall be at the
option of the said Erasmus Carver and William Carver to
renew this agreement for the further term of seven years, under
and subject to the several clauses, covenants, and agreements
hereinbefore particularly mentioned and set forth, which the
said Archibald Giesler doth hereby engage to do. And it is
hereby further covenanted, declared, and agreed, by and be-
tween the said Erasmus Carver and William Carver and Arclii-
bald Giesler, that these presents do not, nor shall be construed
to mean to extend to such ships or vessels that may come to
the addi-ess of either of the said parties respectively, for the
purpose of loading or delivering any goods, wares, or merchan-
dize, it being the true intent and meaning of these presents,
and the parties hereunto, that the foregoing articles shall not,
nor shall be construed to bear reference to their particular or
separate mercantile concerns or connections ; and that in case
any disputes or misunderstanding shall hereafter arise between
them, respecting the true intent and meaning of any of the
articles or covenants hereinbefore contained, that then such
disputes or misunderstandings shall be submitted to the arbitra-

1184 WAUOH V. CAUVEU.

tion of two iiuliffeit'iit persons, one to he cliosen by the said
Krasmns Carver and William Carver, and the other by the said
Arehihald (iiesler; and in ease sneh two persons eannot agree
about the same, then they are hereby emjjowered to name some
third person as an umpire; and it is hereby deelared and
agreed, that the award and determination of the said referees
and umpire, (u- any two of them, concerning the object in
dispute, shall be made and settled within six calendar months
next after such differences shall have arisen between the said
parties, and shall be alisolutely liual, comdusive, and binding.
And l;istlv, for ihi- true i)erformance of all and every the cove-
nants, articles, and agreements hereinbefore mentioned, they
the said Erasmus Carver and William Carver and Archibald
Giesler do hereby bind themselves, their heirs, executors, and
administrators, each to the other, in the penalty of five thou-
sand [lounds of lawful money of irnnf Brifnin, tirndy l)y these
presents."

In pursuance of these articles, Ciiesler removed from Pfi/-
tnouth^ and settled at Cowetf, where he carried on the business of
a ship-agent, in his own name, and contracted for the goods,
&c., wliicli were the subject of the action.

And the (piestion was, whether the defendants were partners
on the true cf)nstruction of the article?

This was argued in Trinity term last, by Clayton^ Serjt., for
the j)laintiff, and Jioi>hi\ Serjt., for the defendants ; and a second
time in the present term by Le Blaru; Serjt., for the plaintift",
and Ldirrciice, Serjt., for the defendants. The substance of the
arguments for the plaintifT was as follows: —

The question in this case is. Whether the articles of agree-
ment entered into by the defendants constituted a partnership
between them ? That such was the effect of these articles will
appear by considering the general rules of law resjjecting part-
ners, and the particular circumstances in the case. The law is,
that wherever there is a participation of profits a partnership is
created; though there is a difference between a participation of
profits and a certain annual payment. Thus in Grace v. Smith,
2 Black. 998, a retiring partner lent the other who continued
in business a certain sum of money at 5/. per cent., and Avas to
have an annuit}' of 300/. a year for seven years, the whole of
which was secured by the bond of the partner who remained in
trade. This was holden not to make the lender a partner; but

WAUGH V. CARVEK. 1185

Chief Justice Be Grey^ there said — " The question is, What
constitutes a secret partner ? Every man who has a share of
the profits of a trade ought also to bear his share of the loss ;
and if any one takes part of the profits, he takes a part of that
fund on which the creditor of the trader relies for his payment.
I think the true criterion is, to inquire whether Smith agreed
to share the profits of the trade with Robinson ; or whether he
only relied on those profits as a fund for payment?" And
Blackstone, J., also said — " The true criterion, when money is
advanced to a ti'ader, is to consider whether the profit or pre-
mium is certain and defined, or casual and indefinite, and de-
pending on the accidents of trade. In the former case it is a
loan, in the latter a partnership." In Bloxam v. Pell^ cited in
Crrace v. Smith, a sum secured with interest on bond, and also
an agreement for an annuity of 200Z. a year for six years, if
Brooke so long lived, as in lieu of the profits of the trade, with
liberty to inspect the books, was held by Lord Mansfield to con-
stitute a partnership. In Jfom^e v. Dawes, Dougl. 371, 8vo, a
number of persons unknown to each other, and without any
communication together, employed the same broker to purchase
tea at a sale of the East India Company. The broker bought
a lot, to be divided among them according to their respective
orders, and pledged the warrants with the plaintiff, for more
money than they turned out to be worth ; on the broker becom-
ing a bankru2:)t, the plaintiff sued two of the purchasers, con-
sidering them all as secret partners, and liable for the whole.
But the Court held that there was no partnership, and Lord
Mansfield said — "There is no undertaking by one to advance
money for another, nor any agreement to share with one another
the profit or loss. In Coope v. E'jre, 1 H. Bl. p. 37, one of the
defendants bought a quantity of oil of the plaintiffs, and the
other defendants had agreed, before the purchase, each to take
certain shares of the quantity bought; but, when bought, each
to do with his own share as he j^leased ; they were holden not
to be partners, for there was no share of profit or loss. In
Youmj V. Axtell, and another («), which was an action to re-
cover 600/. and upwards for coals sold and delivered by the
plaintiff, a coal-merchant, an agreement between the defendants
was given in evidence, stating that the defendant Mrs. Axtell

((7) At i4uUdhrdl sittings after llil., 24 G. 3, cor. Lord 3lansfieM, cited by
Mr. Serjt. Le Blanc, from a MS. note.

1186 WAUGH V. CAKVHIl.

hiul lately caniLMl on the coal trade, and thai the other defend-
ant did the same: that Mrs. Axtell was to hrhit^ what custom-
ers she could into the business, and that the other wits to pay
her an annuity, and also '2s. for every chaldron that should Ihj
sold to those persons who had been her customers, or were of
her recommending. The plaintiff also proved, that bills were
made out for jj^oods sold to her customers in their joint names;
and the question was, whether Mis. Axtell was liable for the
debt? Lord Mansfield said, "he slionld havi' rather thought on
the agreement only, that Mrs. Axtell would l)e liable, not on
account of the annuity, but the other payment, as that would
be increased in j)roportion as she increased the business. How-
ever, as slu- suft'creil her iiainc to Ik- used in the business, and
held heiself out as a paitner, she was certainly liable, though
the plaintilT did not at the time of dealing know that she was a
partner, or. that her name was used " (</). And the jury ai-cord-
ingly found a verdict for the plaintitV.

It a[t[)earing, therefore, from these authorities, that a ])arti-
cipation of profits is sullicient to constitute a partnership, it
remains to be seen whether the agreement in (|uestion did not
establish such a participation of the profits of the agency
business between the defendants as to make them lialile as
partners. In the first place, it is stated in ihe recital, that the
Carvers and Giesler had agreed to allow each other certain pro-
portions of each other's connui.ssions and profits. It is then
agreed that (iiesler should, when re([uired by the Carvers, re-
move from Pli/niouth to Cowes^ and there establish a house :
and in consequence of the Carvers' recommendation and assist-
ance to support the house, Giesler is to allow them a moiety of
the commission on ships putting into the port of Coives, or
remaining in the road to the westward, addressed to him, and a
moiety of the discount on the tradesmen's bills employed on
such ships : he also covenants to advise with the Carvers and
pursue such measures as may appear to them to be for the inter-
est of the concern. On the other hajid, the Carvers agree to
pay Giesler three-fifths of the agency of all vessels whicli shall
come from Coupes to Portsmouth, and put themselves under the
direction of the Carvers, by the recommendation of (xiesler,
one-half per cent, on tradesmen's bills, and certain proportions

(rt) Sedqxicere; vide the expressions of Park, J., in Dickinson v. Valpy, 10
B. & C. 140.

WAUGH V. CAKVER. , 1187

of warehouse rent and agency. Eacli party is likewise to pro-
duce true copies of the accounts of tlie ships to the other, and
neither is to form any other connection in tlie agency business
during the period agreed upon ; and they are to meet once a
year at Gosport to settle their mutual accounts, and pay over
the balance. Now it was not possible to express in clearer
terms an agreement to participate in the profits of the business
of ship-agents, and to establish a joint concern between the two
houses. It ma};' be objected, that there is a proviso, that neither
of the parties shall Ije answerable for the losses of the other ;
but this would certainly be not binding on the creditors. Lord
Craven v. Widdoivs, 2 Chan. Cas. 139 ; Heath v. Percival, 1 P.
Wms. 682 ; Mich v. Coe, Cowp. 636. An agreement to share
profits alone, cannot prevent the legal consequence of also shar-
ing losses, for the benefit of creditors. Perhaps it may be diffi-
cult to find an exact definition of a partnership, but it has been
always holden, that where there is a share of profits, there shall
also be a share of losses ; for whoever takes a part of the capi-
tal, or of the profits upon it, takes a part of that fund to which
the j)ublic have given credit, and to which they look for pay-
ment. If there be no original capital, the profits of the trade
are themselves a capital, to which the creditor is to have
recourse. Thus, if in the year 1791 the profits were lOOZ.,
and in the year 1792 there was a loss of IQL, of course the prof-
its of the preceding year would be the stock to which the cred-
itor would resort for the payment of the debts Avhich consti-
tuted part of the loss of the succeeding year. Indeed it is by
no means necessary that, to constitute a partnership, the parties
should advance money by way of capital ; many joint trades
are carried on without any such advance : there is therefore no
ground to object, in the present instance, that neither party
brought any money into a common stock, in order to carry
on their business.

On behalf of the defendants, the arguments were as follows :
The question is. Whether this agreement creates such a partner-
ship as to make all liable to the debts of each? A partnersliip
may be defined to be, "the relation of persons agreeing to join
stock or labor, and to divide the profits.'' Thus Puffen(h)rf
described it, " Contractus societatis est, quo duo pluresve inter ae
pecuniam, res, aut operas cotifenmt, eo sane, ut quod inde redit
lucri inter singulos pro ratd dividatur,'^ lib. 5, cap. 8. Partners,

1188 WAi(;ii V. cAKVKi:.

therefore, can only l)e liable on the ^nound ot" their heini,' joint
contractors, or as piu takiiit,^ of a joint stock. In many cases in
which questions of this sort iiave arisen, and the persons h.ive
been holden to l)e partners, goods had been sold, and a common
fund established, to which the creditor mi<,dit look for payment;
and there it was highly reasonable to hold, that if many persons
purchase goods on their joint account, though in the name of
one only, and are to share the protits of a re-sale, they shall be
considered as joint contractors, and therefore liable as })aitners.
So if a joint stock or capital or joint labor l>e employed, eaeh
party is interested in the thing on wiiieh it is employed, and in
the profits resulting fri>m it. But in the present case, tliere is
no joint contiact for tlie purchasing of goods, nor any joint
stock or laboi', but the parties are to share, in certain propor-
tions, the protits of their separate stock, and separate labor:
there was no house of trade or merchandise established, but
two distinct houses, for the })uri)ose of carr3ing on tlie business
of ship agency, on two distinct ai-counts. The protits are not
a capital, unless cariied on as a cai)ital, and not divided. Ship
agents are not traders, but their employment is merely to man-
age the concerns of such ships in port as are addressed to them.
Su[)pose two lisliermen were to agree to share the protits of the
tish that each might catch, one would not be liable for mending
the nets of the other. So if two watermen agree to divide their
fares, neither would be answerable for repairing the other's
boat. Xoi- would any artificers who entered into similar agree-
ments to share the produce of their separate labor, be obliged
to pay for each other's tools or materials. And this is not an
agreement as to the agency of all ships with which the parties
were concerned, for such as came to the particular address of
one were to be the sole profit of that one. It was indeed
clearly the intent of the parties to the agreement, and is so
expressed, that neither should be answerable for the losses, acts,
or deeds of the other, and that the agreement should not
extend to their separate mercantile concerns. It must there-
fore be a strong and invariable rule of law that can make the
parties to the agreement responsible for eaeh other against their
express intent. But all cases of partnership which have been
hitherto decided have proceeded on one or other of the follow-
ing grounds : 1. Either there has been an avowed authority
given to one party to contract for the rest. 2. Or there has been

WAUGH V. CARVER. 1189

a joint capital or stock. 3. Or, in case of dormant partners,
there has been an appearance of fraud in hokling out false
colors to the world. Now the present case is not within either
of those principles : because there was no authority given to
either party to contract for the others ; nor was there any
joint capital or stock ; nor were the public deceived by any
false credit ; no fraud is stated or attempted to be proved, nor
can the court collect from the articles that any was intended :
it was merely a purchase of Giesler's profits by giving him a
share of those of the Carvers, to prevent a competition between
them.

Lord Chief Justice Eyre. — This case has been extremely
well arofued, and the discussion of it has enabled me to make
up my mind, and remove the only difficulty I felt, which was,
whether, by construing this to be a partnership, we should not
determine, that if there was an annuity granted out of a bank-
ing-house to the widow, for instance, of a deceased partner, it
Avould make her liable to the debts of the house, and involve
her in a bankruptcy ? But I think this case will not lead to that
consequence (a).

The definition of a partnership cited from Puffendorf is good
as between the parties themselves, but not with respect to the
world at large. If the question Avere between A. and B.,
whether they were partners or not, it would be very well to
inquire, whether they had contributed, and in what proportion,
stock or labour, and on what agreements they were to divide
the profits of that contribution. But in all these cases a very
different question arises, in which the definition is of little
service. The question is generally, not between the parties, as
to what shares they shall divide, but respecting creditors, claim-
ing a satisfaction out of the funds of a particular house, who
shall be deemed liable in regard to these funds. Now a case
may be stated, in which it is the clear sense of the parties to
the contract that they shall not be partners ; that A. is to
contribute neither labour nor money, and, to go still farther,
not to receive any profits. But if he will lend his name as a
partner, he becomes, as against all the rest of the world, a
partner, not upon the ground of the real transaction between
them, but upon principles of general policy, to prevent the
frauds to which creditors would be liable if they were to

(a) [But see now the 28 & 29 Vict. c. 80, s. •i,post, in nota.'\

1190 WAl(;U V. CAKVKK.

hiippose that tliey lent their money upon tlie apparent credit of
three or four i)ersons when in fact they lent it only to two of
them, to wlioni, without the otliers, they wouhl liave h-iit
nothing. The argument gone into, liowcvti- proper for the tlis-
cussion of the (question, is irrelevant to a great part of the ease.
Whether these i)ersons were to inteifere more or less, with
tlieir advice and directions, and ni;iny small parts of tiie agree-
ment, 1 lay entirely out of the ease ; heeause it is plain upon
construction of the agreement, if it be construed hetween the
Carvers and Giesler, that they were not, nor ever meant to he,
partners. They meant each house to carry on trade without
risk of each other, and to be at their own loss. Though there
was a certain degree of control at one house, it was without an
idea that either was to i)e involved in the consecpiences of the
failure of the other, and without understanding themselves
lesponsible for any circumstances that might happen to the
loss of either. That was the agreement between themselves.
But the {[uestion is, whether they have not by 2)arts of their
agreement constituted themselves partners in respect to other
persons? The case therefore is reduced to tlie single ])oint,
whether the Carvers did not entitle themselves, and did not
mean to take a moiety of the proiits of Giesler's house, gener-
ally and indetinitely as they should arise, at certain times
agreed upon for the settlement of their accounts. That they
have so done, is clear upon the face of the agreement : and
upt)n the authority of Grurc v. Smith {a), he who takes a
moiety of all the profits indetinitely, shall, by operation of law,
be made liable to losses, if losses arise : upon the prinei})le that,
III/ takinn a part of the profitxi, he taken from the creditors a part
of that fund ivhich is the proper security to them for the payment
of their debts. That was the foundation of the decision in
Grace v. Smith, and I think it stands upon the fair ground of
reason (^d). I cannot agree that this was a mere agency, in the
sense contended for on the part of the defendants, for there
\vas a risk of profit and loss : a ship-agent employs tradesmen
to furnish necessaries for the ship ; he contracts wath them,

(a) 2 Black. 998. Lindley, L. .J.) in his valuable treatise

(fe) [But see post, Wheatcroft v. on the Law of Partnership, pp. 34-40.

Hickman, in nota. Before that de- The actual decision in Grace v. Smith

cision, the principle laid down in was that the defendant was not a

Grace v. Smith was irapugned with partner.]

much learning by 3Ir. Lindley (now

WAUGH V. CARVER. • 1191

and is liable to them ; he also makes out the bills in such a way
as to determine the charge of commission to the ship-owners.
With respect to the commission, indeed, he may be considered
as a mere agent ; but, as to the agency itself, he is as much a
trader as any other man, and there is as much risk of profit and
loss to the person with whom he contracts, in the transactions
v»dth him, as with any other trader. It is true that he will gain
nothing but his discount, but that is a profit in the trade, and
there may be losses to him, as well as to the owners. If there-
fore the principle be true, that he Avho takes the general profits
of a partnership must of necessity be made liable to the losses,
in order that he may stand in a just situation with regard to the
creditors of the house, then this is a case clear of difiiculty.
For though, with respect to each other these persons were not
to be considered as partners, yet they have made themselves
such, with regard to their transactions with the rest of tlie
world. I am therefore of opinion that there ought to be judg-
ment for the plaintiff.

Gould, J. — I am of the same opinion.

Heath, J. — I am of the same opinion.

Mooke, J., having argued the case at the bar, declined giving
any opinion.

Judgment for the plaintiff (a).

Partnership is either actual or nominal. Actual partnership takes place
wlien two or more persons agree to combine property, or labour, or both, in
a common undertaking, sharing profit and loss. " I have always," says
Tindal, C. J., in Green v. Beeseley, 2 Bing. N. C. 112, " understood the defini-
tion of partnership to be a mutual participation in profit and loss."

[But the question whether an agreement constitutes a partnership as
between the parties to it giving them the rights and liabilities of partners,
inter se, is totally different from the question Avhethcr a partnership is created,
with its incident liabilities as regards third persons. The distinction is
clearly put by Cotton, L. J., in Walker v. Hirsch, 27 Ch. D., at p. 467.

Prima facie a mutual agreement to share profits and losses in certain pro-
portions may be said to create a partnership as between the parties to it,
though it may be questioned whether Kay, J., did not go too far in Pawsey \.
Armstrong, 18 Ch. D. 698, 50 L. J. Ch. 683, in laying down that this is the
inevitable result of such an agreement: see per Cotton, L. J., in Walker v.
Hirsch, uhi supra, where it was held that no partnership was created. The
court, however, will look to the efiect of an agreement and not the mere
wording of it, and an agreement may constitute a partnership, even as between

(a) See Coope v. Eyre, 1 H. Bl. p. 37, and the note there.

1192 WAUGH V. CAKVKU.

tlic parties to it, notwithstaiidinir that it may contain an express provision to
tlie contrary, Moore v. Doris, 11 Ch. I). 2t;i.

A fortiori,^ with respect to third persons, an itrltutl partnership [niay]
subsist where there is a participation in the prujits, even thoiii;ii the partici-
pant may liave most expressly stipulated ajrainst tlie usual incidents to that
relation. (See liond v. Piltnnl, 3 M. & W. H'lT.) Such stipulations [may]
indeed hold j;ood between himself and his companions, but will in no wise
diminish his liability to third persons.

[Tiie principle on which tliis was supposed to be founded was — to use tlie
lanijuaj?e of the L. C. .1. in the principal case — that •■ i)y taivinj^ a part of
tlie profits, he takes from the creditors a part of that fund wliich is the
proper security to tliem for payment of their debts." This principle. althouj;h
some have thought it inexpetlient as a restraint upon the employment of
money in commerce, was for a long time upheld ; but now both the legisla-
ture and the highest court of appeal have pronounced it to be vicious.

It is now settled, that there may be a participation in profits, yet no |>art-
nersliip, even qnoad third persons. The real test of the liability of any one
to tliird parties as a copartner is, whether or not the other person or persons
conducting tlie business were his agents to carry it on. This was decided by
the unanimous judgment of the House of Lords in Wheatrroft and (-'or v.
Ilirkmnn, !) C. B. N. S. 47, 8 II. of L. C. L'HH, ;50 L. .1. C. P. 12.1, overruling
the authorities to the contrary, and reversing the decision in the same case
of the Common Pleas, and of the Excheiiuer Chand)er ; in which latter court,
however, the judges were divided in opinion, as also were the judges who
delivered their opinions in the House of Lords.

The facts of the case were these: Messrs. Smith, who were partners as
iron-mercluints at the Stanton Iron Works, became insolvent, and a deed
of arrangement was executed between them and their creditors. By this
deed Messrs. Smith conveyed all their property to live trustees upon trust,
to continue and carry on, under the name and stijle of the Stanton Iron Com-
pany, the hiiiiiness theretofore carried on by the Messrs. Smith in copartnership.
The deed then conferred upon the trustees powers to manage the works as
they thought fit, and to renew leases, insure, erect buildings and machinery,
appoint managers and agents, enter into and execute all contracts and instru-
ments in carryinfj on the business (a provision clearly authorizing the trustees
to make or accept bills of exchange), and to divide the net income of the busi-
ness remaininy, after the abore purposes had been answered, amongst the cred-
itors of Messrs. Smith, in rateable proportions, — provided that in distributing
such income, it should be deemed the property of Messrs. Smith; with power
for the majority in value of the joint creditors, at a meeting, to alter the
trusts, and make rules as to the discontinuance of the business and the man-
agement of it, and ultimately after paying the debts incurred in the l)usiness
so carried on, to divide the residue of the moneys, rateably, amongst the
creditors, with the same provision that the moneys were to be considered
the property of Messrs. Smith. The creditors were to receive the provisions
of the deed in full discharge of their debts, and they covenanted not to sue.
The defendants were creditors of Messrs. Smith, and they subscribed and
executed this deed.

The trustees carried on the business in pursuance of the deed, under the
name of the Stanton Iron Company, and the plaintiff Iiaving sujjplied the
company with iron ore, one of the trustees accepted bills of exchange in the

WAUGH V. CARVER. 1193

name of the company for the price of it. The bills not havins: been paid at
maturitjs the plaintifl" sued the defendants as acceptors.

The real question was whether the deed made the defendants partners with
the trustees, or what is the same thing, agents to bind them by tlieir accept-
ances on account of the business, and the Lords present (Lords Campbell, C,
Brougham, CrauAvorth, Wensleydale, and Chelmsford) unanimously held
that such agency was not established by the deed and that the defendants
were not liable.

"It is often," obsei'ved Lord Cranworth, " said, that the tests, or one of
the tests, whether a person not ostensibly a partner is nevertheless in con-
templation of law a partner, is whether he is entitled to j^articipate in the
profits. This, no doul)t, is in general a siifficiently accurate test; for a right
to participate in profits afibrds cogent, often conclusive, evidence that the
ti-ade in which the profits have been made was carried on in part for or on
l)ehalf of the person setting up such a claim. But the real ground of the
liability is, that the trade has been carried on by persons acting on his behalf.
When that is the case, he is liable to the trade obligations, and entitled to the
profits or to a share of them. It is not strictly correct to say that his right
to share in the profits makes him liable to the debts of the trade. The
correct mode of stating the proposition is to say that the same thing that
entitles him to the one, makes him liable to the other, namely, the fact that
the trade has been carried on in his behalf, i.e., that he stood in the relation
of principal towards the persons acting ostensibly as the traders, by whom
the liabilities have been incurred, and under whose management the profits
have been made. Taking this to be the ground of liability as a partner, it
seems to me to follow that the mere concurrence of creditors in an arrange-
ment under which they permit their debtor, or trustees for their debtor, to
continue his trade, applying the profits in discharge of their demands, does
not make them partners with their debtor or the trustees. The debtor is still
the person sglely interested in the profits, save only that he has mortgaged
them to his creditors. He receives the benefit of the profits as they accrue,
though he has precluded himself from applying them to any other purpose
than the discharge of his debts. The trade is not carried on by or on account
of the creditors."

His lordship then proceeded to show that Waugh v. Carver, Bond v. Pittard,
supra, and Barry v. Nesham, 3 C. B. 641, applying to them the test enunciated
by him, were correctly decided.

"The law," said Lord Wensleydale, "as to partnership is undoubtedly a
l)ranch of the law of principal and agent ; and it would tend to simplify and
make more easy of solution the questions which arise on this subject if this
true principle were more constantly kept in view. A man who orders
another to carry on trade, whether in his own name or not, to buy and sell,
and to pay over all the profits to him, is undoubtedly the principal, and the
person so employed is the agent : and the principal is liable for the agent's
contracts in the course of his employment. So, if two or more agree that
they should carry on a trade and share the profits, each is a principal, and
each is an agent for the other, and each is bound by the other's contracts in
carrying on the trade, as much as a single principal would be by the act of
an agent, who was to give the whole of the profits to his employer. Hence
it becomes a test of the liability of one for the contract of another, that he is
to receive the whole or a part of the profits arising from that contract by
virtue of the agreement made at the time of the eni;)li)yinenl. I believe this

ir.»4 W Al «.H V. CAUVKK.

Is the tnif principle of partnershii) liability. I'erlmps the nmxim, timt hf trho
tnkfs thi- jn-nfit.1 itiiijht (') lit'ir th*- lnim, J)ften statetl in tiie earlier euses on thli*
Hul)ject — W'aitijh v. Caner, &c., — \n only the rutntfiufuri-, not the i-anse,
why a man is matle Hal)le as a partner. Can we collect from the trust deed
that each of the subscril)iiiu creditors Is a partner with the trustees, and by
the mere siijnatnre of tlie deed, runstitutfs thfin hin tnjfnt for rnrrtjiny on the
huniiicuHfnr his accimnt and the rest of the creditors? I think not. It l8
true that l)V this deed the creditors will ;;ain an advanta;;e by the trustees
carryiutc on the tra«le; for if it is protltal>le they will ;;ei their debts paUl ;
but tliis is not that siiarin;; of |)rollts which c«>nstltutes the relation <»f prin-
cipal, ai^ent, and partner."

See furliiiT Kih/iaic v. Jukes, S B. & S. H47; and Ilnllfn v. Sharji, Cam.
Scac. L. U. 1 C. r. «G; 35 L. J. C. 1'. 105, In which the above rationea deci-
di'iuli were acted upon.

In the latter case the opinion of the majority of the Court of Exchequer
rhaint»er. reversini; a jndijnient of the Common IMeas, was a<;alnst the lia-
bility of a trustee under a niarriaue settlement l)y which the trustet' was to
receiv«' all the proilts of the husband's business of an unilerwriter, in tnist In
the llrst pla<e to pay himself an annuity, for which the husband was liable
before the settlement, and afterwanls for the objects of the settlement.

The same rule was followed In In v I'hf Einjtiith, A'c, Inniiraiirr <\tmjmny,
1 !I. & M. M5, where parth-lpation In bonuses was held not to make policy
holders liable as partners; and In Shnw v. Hait, H» Ir. C. L. Hep. 357, where a
clerk who was entitled to a fixed salary, and also to one-third of the net
proilts of tin- business, was held not liable to creditors as a partner In the
business.

.VortAv'.s V. liarlmr, i>(i W. K. ;!s;t, -Jt; L. T. \. S. i;^;. is an exaniple of cir-
cumstances held to create an auemy of this sort. The tlefendant and a
builder had made an afrreement by which the latter was to erect certain
houses, providing the plan, v<tc., for which the defendant was to sjipply the
funds, which were to be paid Into a bank on their joint account, the builder
belnj; entitled to draw 40.>». per week for personal expenses durlnfj the erection.
Both parlies were to be jointly interested in the houses, which on completion
were to l)e sold, and an account of profit and loss was to be taken between
the two. The builder purchased materials, &c., for the houses on credit from
the plaiiUitr, and in an action by the latter for the j)rice. Brett. J., ruled that
the airncmeut did not constitute a partnership so as to authorise the builder
to pledge the defeiulant's credit. Un a bill of exceptions the Court of Kx-
chequer Chamber, whilst adherinj; to the ratio dpriihndi in Voj- v. Ilirktnfin,
that '• sharing in profits and loss does not in itself constitute a partnership,
but only affords a strong pi'esumption that the one party is made the agent
for the other," held that in this case the agreement did constitute the builder
the (.iefentlant's agent, to pledge the credit of the latter, and therefore that
the above ruling was wrong. See also Ex parte MacMillmi, 24 L. T. N. S.
143. The case of KilJij v. Srott, 49 L. J. Ch. 383. is one in which it was held
that under a somewhat similar agreement a partnership liability ijuoad third
persons was not thereby created.

The question what constitutes a partnership as against third persons and
of the Tartnership Act, 18G5, which will be presently noticed, was very fully
discussed in Holme v. Hammond. L. R. 7 Ex. 218, 41 L. J. Ex. 157. There, by
articles of partnership, it was provided that in case of the death of a part-
ner in an auctioneer's business, the surviving partner should carry on the

WAUGH V. CAKVER. 1195

partnership, and should pay the representatives of the deceased partner his
sliare of the profits up to tlie end of tlie tenn for wliicli tlie partnership was
created. At tlie decease of one of tlie partners there was no capital in the
business — except the office fittings and furniture — and his executors subse-
quentl}' interfered in no way in the business ; but they registered an account
of, and were credited with profits earned before and after the death of their
testator. It was sought to make them chargeable as partners in the business,
and the Court unanimously held that they were not so liable under the cir-
cumstances. Martin and Bramwell, B. B., cite with the highest approval the
efl'ect of Cox v. Hickman, as stated by O'Bi'ieu, J., in Shaw v. Gait, as fol-
lows : " The pi'inciple to be collected from them appears to be that a partner-
ship even as to third parties is not constituted by the mere fact of two or
more persons participating or being interested in the net profits of a busi-
ness, but that the existence of such partnership implies also the existence of
such a relation between those persons as that each of them is a principal and
each an agent for the others." Kelly, C. B., seems in his judgment to repudi-
ate to some extent agency as a test of partnership liability, and Cleasby, B.,
objects to the passage from the judgment of O'Brien, J., that " in the com-
mon case of a partnership where by the terms of the partnership all the
capital is supplied by A., and the business is to be carried on by B. and C. in
their own names, it being a stipulation in the contract that A. shall not
appear in the business or interfere in its management, that he sliall neither
bnj^ nor sell nor draw nor accept bills, no one would say that as among them-
selves there was any agency of each one for the others."

The ratio decidendi in Cox v. Hickman was again followed in Mollwo,
March & Co. v. The Court of Wards, L. K. 4 P. C. 419. This last was a
strong case ; for the rajah, whom the appellants sought unsuccessfully to
charge as a partner, had a considerable amount of control over the business
as well as a commission on all net profits made by the firm equal in propor-
tion to one-fiftli of their amount. But the Court held " that although a right
to participate in the profits of a ti'ade is a strong test of partnership, and
there may be cases where from such perception alone it may as a presumption,
not of law, but of fact, be inferred ; yet tliat whether that relation does or
does not exist must depend on the real intention and contract of tlie parties.
. . . Wherever the agreement between parties creates a relation which is in
substance a partnership, no mere words or declarations to the contrary will
prevent, as regards third persons, the consequences flowing from the real
contract." In tliat case, however, their lordships thouglit that "the agree-
ment on which it was sought to establish the alleged partnership was in sub-
stance founded on the relation of creditor and debtor, and established no
other."

See also Ex parte Davis, 4 ])e G. J. & S. 523, and Gill v. Manchester Bail-
way Compamj, L. R. 8 Q. B. 18G, 191, where it was held that a working agree-
ment between two companies, even if it " did not constitute an actual part-
nership between the respective companies as to all the matters embraced by
it," still did bring the defendants (one of the companies) "within the rule
expressed by Lord Cranworth in Cux v. Hickman : ' The real ground of
liability is tliat the trade has been carried on by persons acting on his (the
defendant's) behalf.' "

Without attempting to draw any hard and fast line to define what circum-
stances constitute a partnersliip by agency (quoad third persons, see Walker v.
Hirsch, 27 Ch. D. 460, and Lindley on Partnership, 4th ed. pp. 38 et seq.), the

ir.iG WALLiii V. cai:vi:k.

ctt'i'ct of Coy V. Hick-man ns folUtwcd by the Inter cases seems to be tliat to
establish the lial)ility of a person as partner to tlu- creditors of a Jinn it i»
necessary to look at all the circumstances establishinii relations between him
and his alleged partners with reference to the biisimss; and that the mere
receipt of protlts is only one strong fact, which does not in itself constitute
the receiver a partner, but is only evidence liable to be rebutted or supported
by the other facts of the case. Sec Badeley v. Consolidated Hank, 34 Ch. D.
6;JG; Frowdi' v. Williamx, 5(1 L. J. Q. B. 02.

If the whole facts show that the persou soujfht to be charjjed authorised
the carryiui^ on »tf the business on account and for the benetit of himself,
then he is liable as a partner would be, anil he can no more avoid responsi-
bility to third persons by showiuii that he had sti|)ulatt'd with the ostensible
partners that he should not be liai)le for the debts of the linn than coulil any
other concealed principal by stipulations with his own afjent avoid liaiiility to
third parties on contracts efl'ected by that ajjent «ui his behalf within the
authority Kiveii by liini. But it Is obvious that it is almost impossible to
detlne accurately what are the states of circumstances which establish the
relations in this sense of principal and aj^ent. Capital embarked, powers of
interference in the business, |)rollts received, are all circumstances to be
taken into c<jnsideralion in deciding; the <|uestion. See Cox v. Ilirkinun, 9 C.
B. N. S. 85, pi-r Pollock, C. B. ; Mollico, March & Co. v. Ttw Court of \Vnr,l, L.
R. 4 V. C. 43.j; Rush v. Parki/ns, L. K. 20 Eq. .VM, 44 L. J. Ch. (110.

Since the above remarks were written, the subject has been exhaustively
discussed in Poolfij v. Driver, 5 Ch. 1). 4.J.S, 4(1 L. J. Ch. 4Gt!, by Jessel, M. U.,
whose judjjcment has been further considered by the Court of Appeal in Ex.
parte Tennant, In re Howard, Ch. 1). '.W.i, and in Ex parte fJdhasse, In re
Meijcrand, 7 Ch. D. 511. The jud.i;ments in those three cases, it is submitted,
fully sui)port the doctrine which in the last two paraLcra|)iis it was attempted
to enunciate. See especially the juiis;ment of Cotti>n, L. J., in Ex parte Ten-
nant, at p. ;U5. " I take it," says his lordship, " the law is this : that partici-
pation in protits is not now conclusive evidence of the existence of a part-
nership, but it is one of the circumstances, and a very strong? one, wliich are
to be taken into consideration for the purpose of seeinj; whether or not a
pai'tncrship exists, that is to say, whether there was a joint business; or,
puttiuir it in another way, whether the parties were carryin*; on the business
as principals and as agents for each other, whether it is a joint business or
the business of one only."

The Master of the Uolls, however, in Poolejj v. iJrirer, indicates an opinion
that the test of agency is of no avail, because in the sense in which it must
be used, the term " agent" is, his lordship considers, simply co-extensive with
that of partner. He lays down generally as follows : "If we find an associa-
tion of two or more persons formed for the purpose of carrying on in the
first instance or continuing to carry on business, and we find that those per-
sons share between them generally the profits of that business, as I under-
stand the law of the case as laid down by the highest authority (the House
of Lords in Cox v. Hickman), those pei'sons are to be treated as partners in
that business, unless there are surrounding circumstances to sliow that they
are not really pai'tners. That, of course, brings me again to another ques-
tion, wliich must always be considered, and that is, whether looking at the
contract as a wbole, it is intended to secure the benefit of a partnership with
or without its liabilities, or whether it is not intended tliat tlie benefits of a
partnership shall be secured."

WAUGH V. CARVER. 1197

In Ex parte Tennnnt, In re Howard, Ch. D. 303, the Court of Appeal came
to the conohision that although there was a contract by which the supposed
partner was to have a share in the profits of a business carried on by his son,
the whole circumstances must be looked at, and these negatived any inten-
tion in the parties to create a partnership. (Another case where the facts
were held to negative a partnership is Deane v. Harris, 33 L. T. N. S. 639.)

In Ex parte Delhasse, In re Megevand, 7 Ch. D. 511, the same Court came to
an opposite conclusion as to the true inference to be drawn from the facts of
that case, and held that a partnership was created.

In the latter case Thesiger, L. J., cites Lord Cranworth as giving " as the
test that which no doubt must now be taken as the pi'oper test to be applied
in all these cases, namely, that the real ground of liability as a partner is,
that the trade has been carried on by persons acting on behalf of the person
whom it is attempted to make liable as a partner. But," adds Lord Justice
Thesiger, "in the very same page in which those words occur. Lord Cran-
worth also says that the participation in profits is in general a sufliciently
accurate test, and that the right of participation in profits aflbrds cogent,
often conclusive evidence of a partnership. If that be so, it follows as a
logical consequence, that if in addition to participation in profits the arrange-
ment provides for a participation in losses, and also certain stipulations
tantamount to the ordinary [Stipulations which one would expect to find in
the case of a dormant pai'tner, it is an a fortiori reasoning in such a case in
favour of a partnership."

In the recent case of Froivde v. IVilliams, 56 L. J. Q. B. 62, it was held that
the agreement did constitute a partnership.

It should be observed that in Cox v. Hickman and Bullen v. Sharp the
amount of profits receivable w'as limited, viz., to the amount of the respec-
tive defendants' debts, and doubts have been expressed as to whether those
decisions would be binding where the participation in profits was unlimited.
But in Holme v. Hammund, L. R. 7 Ex. 218, where the latter was the case,
the Court of Exchequer declined to draw any distinction on that gi'ound, nor
did the Court of Appeal in Ex parte Tennant, uhi siq'). In Cox v. Hickman, 9
C. B. N. S. 47, 100, Lord Wensleydale says, " The trustees (under the deed)
are certainly liable, because they actually contract by their undoubted agent."
For tAVO cases where trustees under inspectorship and composition deeds
have been held not liable, see Redpath v. Wigg, L. R. 1 Ex. 335, 35 L. J. Ex.
211 ; Easterbrook v. Barker, L. R. 6 C. P. 1, 40 L. J. C. P. 17.]

On the above principles it is that a dormant partner, i.e., a partner whose
name does not appear to the world as part of the firm, is held responsible for
its engagements, even to those who, when the}' contracted with the firm,
were ignorant of his existence. Exp. Cellar, Rose, 297 ; Wintle v. Crowther,
1 C. & P. 316; 1 TyrAV. 210; BoUnson v. Wilkinson, 3 Price, 538; IBottomley
V. Nuttall, 5 C. B. N. S. 122; per Blackburn, J., Kilshaw v. Jukes, 3 B. & S.
847].

In one respect, however, there exists very considerable diflerence between
the liabilities of an ostensible partner and those of a dormant one; for the
liability of a partner who has appeared in the firm, in respect of the acts and
contracts of his co-partners, continues even after the dissolution of the part-
nership, and the removal of his name therefrom, until due notice has l)een
given of such dissolution. See Parkin v. Carruthers, 3 Esp. 248; Graham v.
Hope, Peake, 154.

And though, as far as the public at large are concerned, notice in the Gazette

1108 w.vr*;!! v. caiivki:.

is held sulHficnt for this purpost-, (ImJ/ri'ii v. Tunihtill, 1 Ksp. 371; W'rvjhtinin
V. J'lilhiii. 1 Starli. .■57r> ; limilip v. l/nward, 17 C. B. 1215, yi-t, to persons who
have dealt witli tiiu linn, more Hpeeitle iiiforiiiatioii must i)e ;;iven. Kirtrun
V. Kirican, 4 Tyrw. 491. And this is generally ellectod by circulars. See Xew-
some V. Coles, 2 Camp. (il7; Jenkins v. Dlizard, 1 Stark. 418. Hut if a fair
presumption of actual notice can be raised from otiier circumstances, tliat
will be sutllcient. M'lrer v. Hiiinhle, 1(» Ea.st, ICO. Thus, a chaufje in tlie
wording; of che(iues has l)eeii held notice to a party usinif them. Ilnrfoot v.
GoixUiitll, 3 Camp. 147.

Hut it is not to be taken as a lei,'al incident of the position of a flnnnnnt
partner, but ratlier as a prol)al)iiity arisin-r from the lirer.ter likeliliood <(f his
share in tlie llrm l)eini; unknown to those who deal with it, that his liability
ceases upon the actiial dissolution of the partnership, whilst that of an oxftiisi-
hle partner continues, towards persons who have no notice of the dissolution ;
for although generally speaking, a donnnut partner may retire witliout giving
notice to the world, IIr<tth v. Sansam, 4 H. & Ad. 172; yet, even such a part-
ner remains lial)le to persons who became aware of his partnership whilst it
lasted, and continued their dealings with the tlrm under the In-lij'f that he
still remained a nu'int)er of it. If such persons were not made aware of the
dissolution, it nnglit l)e inferred tliat they dealt on the faith of the partner-
ship; and, as to them, unless tlie circumstances of the case rebutted such an
inference, even a ilormant partner would still be liable. Ernns v. Dnttninond,
4 Esp. 89, Lord Kenyon ; Carter v. Whnlleij, 1 B. & Ad. 13, per Littledale and
Parke, JJ. ; Fnrrar v. Deflinue, 1 Car. & K. 580, Cresswell, .1.

[.\s to the application of the doctrine of reputed ownership in case of the
bankruptcy of an ostensibh' |)arliit'r, see K.r /larte Ilaijtnnn, in re Pulsfnrd, 8
Ch. 1). 11, 47 L. J. Hank. .■.4.

The case of Cox v. Ilirkmnn was soon followed by the statute already
referred to, ettecting in certain instances tlierein specilhnl a dissolution of the
principle laid down in W'mn/h v. ('arnr.

Hy that statute, 2.s & 2'.) Vict. c. HC, s. 1, •• Tlie advance of nioiicy f»j irrn/ ,,/
litiin to a person engaged or about to engage in any trade or undertaking
upon a contract in writing with such person that the lender shall receive a
rate of interest varying with the profits, or shall receive a share of the proflt.>*
arising from carrying on such trade or undertaking, .shall not, of itself, consti-
tute the lender a jiartner witli the person or the jiersons carrying on such
trade or undertaking, or render him responsil)le as such."

" In order to bring a case witliin the .\ct tiiere must be a contract in writ-
ing, and, according to my reading of the Act, tlie contract must on the face
of it show that tlie transaction is a loan," per Lord Chelmsford, in Syers v.
Sijers, 1 App. Cas. 185, in which case is discussed the effect of a letter under-
taking " to execute a deed of copartnership for one-eighth share in the profits
of the Oxford Music Hall and Tavern, to be drawn up under the Limited
Partnership Act of 28 & 29 Vict. c. 86." In Pooley v. Driver, 5 Ch. D. 458 ; 4G,
L. J. Ch. 4GG, it was decided l>y Jessel, M. R., that the contract in writing
must he signed by any jiarty seeking to have the benefit or protection afforded
by the act, and that " the advance of money by way of loan" must not only
profess to be by way of loan. l)ut must be a real loan.

Tlie last proposition, that in each case the whole contract must be consid-
ered to see whether a real loan was intended is sustained by the judgments
in the Court of Appeal in Ex parte Tennant, 6 Ch. D. 303, and in Ex parte
Delhasse, re Megevand, 7 Ch. D. 511. See also Fronde v. Williams, 50 L. J.

WAUGH V. CARVER. 1199

Q. B. 62, where Denman, J., lays down that " it is good primd, facie evidence
of a partnership if tliere be an agreement tliat when tlie business is to be
carried on tliere is to be a sharing of the profits."

Before setting forth the 2nd section, it will be better to state the eftect of
the law before the act was passed. The participation in profits which was
held to constitute a partnership was, that of a person having a right to a
share of the profits and to an account in order to ascertain his share, 7iot that
of a mere servant or agent receiving, in respect of his loages, a sum proportioned
to a share of the profits, or which might he partly furnished out of the profits.
The distinctions on this subject ran verj^ fine, and in previous editions of this
work, the principal cases were reviewed at some length, in the endeavour to
classify them.

It will be suftlcient now to state the result of the principal cases, which
seems to have been,] that whenever it appeared that the agreement loas
intended by the parties themselves as one of agency or service, but the agent or
servant [was] to be remunerated by a portion of the profits, then the contract
[was] considered as between themselves one of agency (see Geddes v. Wallace,
2 Bligh, 270; 7^. v. Hartley, Russ. & R. 139), but, as between them and third
persons, one of partnership. See Smith v. Watson, 2 B. & C. 407; Ex parte
Eowlandson, 1 Rose, 91; Gi-een v. Beesley, 2 Bing. N. C. 110; Ex parte Lang-
dale, 18 Ves. 300; \_Whpatcroft v. Hickman, su2:)ra ; Walker v. Hirsch, 27
Ch. D. 400.]

But if the agent or servant [was] to be remunerated, not by a portion of
the profits, but, as in D)-y v. Boswell, I Camp. 329, Dixon v. Cooper, 3 Wils.
40, and Wilkinson v. Frasier, 4 Esp. 182, by part of a gross fund or stock
which [was] not altogether composed of the profits, the contract, even as
against third persons, [would have been] one of [ordinary] agency, although
that fund or stock [might] include the profits, so that its value, and the
quantum of the agent's reward, [would] necessarily fluctuate with their
fluctuation.

There was a third case, that, viz., in which the agent or servant was not to
receive a part of the profits in specie, but a sum of money calculated in propor-
tion to a given quantum of the profits. In such a case Lord Eldon expressed
his opinion, that the agent so remunerated would not be a partner, even as to
third persons. " It is clearly settled," said his lordship, in Ex parte Hamper,
17 Ves. 112, " though I regret it, that if a man stipulates that he shall have
as the reward of his labour, not a specific interest»in the business, but a given
sum of money, even in proportion to a given quantum of the profits, that will
not make him a partner; but if he agrees for a part of the profits as such,
giving him a right to an account, though having no property in the capital,
he is as to third persons a partner." In another part of the same case he
says — " The cases have gone to this nicety, upon a distinction so thin that
I cannot state it as established upon due consideration, that if a trader agree
to pay another person, for his labour in the concern, a sum of money, even
in proportion to the profits, equal to a certain shai'e, that will not make him
a partner. But if he has a specific interest in the profits themselves, he is a
partner." 17 Ves. 404. See Ex parte Watson, 19 Ves. 461 ; [Harrington v.
Churchward, 29 L. J. Cha. 521 ; and Lyon v. Knowles, 3 B. & S. 550; 32 L. J.
Q. B. 74.

The 2nd section of the act provides as follows: "No contract for the
remuneration of a servant or agent of any person engaged in any trade
or undertaking by a share of the profits of such trade or undertaking shall,

1200 WAIGH V. CAKVKl;.

of itself, rendor such servant or ajjent responsible as a partner therein, nor
{jive Inm the rights of a partner."

iiy the 8ril section, " No person i)eln<j tlie widow or cliild of tlie deceased
partner of a trader, and receivins; by way or annuity a portion of tlie profits
made by such trader in his lousiness, shall, by reason only of such receipt, be
deemed to be a partner of or to be sul)ject to any liabilities incurred l)y such
trader." This section meets the case put l)y the Lord Chief Justice in the
leading case, p. 894.

The 4th section enacts, that '• No person recei\ inj; l)y way of annuity or
otherwise a portion of the protlts of any business, in consideration of the .sale
by hiui of the froodwill of such business, shall, by reason only of such receipt,
l)e dernied to be a partner of or be subject to the lial)ilities of the person
carrying on such business." In relation to this section, see litnrlinson v.
(Jlnrkr, 15 M. & W. 21)2; and Ihtrnj v. AV.s/n/m, 3 C. B. (Ul, a case to which
it should seem this section wo\ild not ap|)ly. That case was recoifnised in
Whfntrroft v. Hickman, suprd.

The words of section 5 are: " In the event of any such trader as aforesaid
beinji adjudfjed a bankrupt, or taking the benefit of any act for tlie relief of
insolvent ilebtors, or entering; into an arran<;enient to pay his creditors less
than twenty shillins;s in the poumi. or dyini; in insolvent circumstances, the
lender of any such loan as aforesaid shall not be entitled to recover any
portion of his i)rincipal. or of the profits or interest payable in respect of
such loan, nor shall any such vendor of a ijoodwill as aforesaid be entitled
to recover any such protlts as aforesaiil until the claims of the other cretlitors
of the said trader for valuable consideration in money or money's worth have
been satisfied." See on this section AV parte Mills, L. R. 8 Ch. 5G'J. It does
not deprive the lender of the benefit of any niortfjage he may have taken for
such loan, so as to be postponctl in respect of it to the claims of the mort-
gagor's other creditors. Ex parte Sheil, in re Lonenjnn, 4 Ch. I). 789, 4(1 L. J.
Bank. r>2. overruling Ex parte Mararthur, 40 L. ,T. Bkcy. HO. And see Bndiley
v. CoiiKiiliiJ'tted Bank. .U Ch. D. ,"j;}G. But the words of the section do not
" confine the restriction to coming in in competition with creditors in respect
of the particular tratle or creditors whose ilebts are contracteil while that
trade is going on. The words are general." Per Cotton, L. J., iu Ex parte
Taylor, 12 Cli. D. at p. 37C.

By section G, the word " person" as used in the act is made to include a
partnership firm, a joint stock company, and a corporation.

It may be remarked that the principle on which (\>x v. Ilirkman was
decided is broad enough to include a large number of cases not included in
the statute : for instance, to entitle a person who may have lent money to the
benefit of the act, s. 1, there must be a contract in writiuf/. On this it has
been attempted to found an argument, which was urged in Holme v. Ilain-
moml {sup.), that the statute, being later than the decision in Cox v. Hickman,
must be taken either to be evidence that the decision in Cox v. Hickman was
not so broad as it has been supposed to be, and as it is above stated, or else
to have effected a statutory limitation to that decision, and that in all cases
not specifically provided for by the act the receipt of profits must create a
partnership liability as had been supposed to be the case i)efore Cox v.
Hickman.

The argument was unavailing. Kelly, C. B., observes in his judgment that
" it seems to him that the eflect of the statute is merely that as respects the
protected classes the sliaring in profits shall be no evidence at all of a con-

WAUGH V. CARVER. 1201

tract of partnership, whereas with regard to others it is evidence, though
insufficient of itself to establisli the liability."

With great humility the act does seem to contemplate the receipt of protits
being given in evidence, even in the specified cases : for it provides that the
receipt of the profits shall not " of itself " and again '• l)y reason of the receipt
onhj " constitute a partnership.

It is submitted that the distinction may be that in the cases specified by
the act the receipt of the profits, though admissible in evidence, is insufficient
■per se to establish the liability, whereas in other cases, it may be, to repeat
Lord Cranworth's words, " cogent and often conclusive evidence," and amplj'
sufficient even per se if not rebutted, though liable to be rebutted by the other
circumstances of the case. In this way the act would be a step in advance
of Cox V. Hickman. And see per Thesiger, L. J., in Ex parte Delhasse, 7 Ch.
D. 531.

Bramwell, B., however, in his judgment takes a bolder line. " It is asked,
if the defendants are not lial)le, what was the use of the 28 & 29 Vict. c. 86?
If I say none, it would only show that the act was useless. In truth it was
passed before the effect of Cox v. Hickman Avas understood," and this would
seem to be the inclination of the opinion of Jessel, M. R., in Pooley v. Driver,
5 Ch. D. pp. 484-G.

In MoUwo, March & Co. v. The Court of Wards, L. R. 4 P. C. 419, this point
was raised before the Privy Council, but their lordships in their judgment (p.
437) say " the enactment is no doubt entitled to great weight as evidence
of the law, but it is by no means conclusive; and wliou the existing law is
shown to be diflerent from that which the Legislature supposed it to be, the
implication arising from the statute cannot operate as a negation of its
existence." With this criticism the M. R. in Pooley v. Driver expresses his
concurrence.]

With respect to nominal 2^a>'tncrship : — that takes place Avhere a person,
having no real interest in the concern, allows his name to be held out to the
world as that of a partner, in which case the law imposes on him the responsi-
Inlity of one to persons who have had dealings with the firm of which he has
hekl himself out as a member. (See the judgment of the Lord Chief Justice
in the principal case; and Guidon v. Bohson, 2 Camp. 302.)

It has, as we have seen, been laid down in Young v. Axtell, cited in the
text, that It makes no difference in such a person's liability that the party
seeking to charge him did not know at the time when he gave credit to the
firm that he had so held himself out.

But this position appears very questionable ; for the rule which imposes
on a nominal partner the responsibilities of a real one is framed in order to
prevent those persons from being defrauded or deceived who may deal with
the firm of which he holds himself out as a member, on the faith of his
apparent responsibility. But where the person dealing with the firm has
never heard of him as a component part of it, that I'eason no longer applies,
and there is not wanting authority opposed to such an extension of the rule
respecting a nominal partner's lialjility. " If it could be proved," says Parke,
J., " that the defendant held himself out — not to the world, for that is a loose
expression — but to the plaintiff himself , or under such cii'cumstances of pub-
licity as to satisfy a jury that the plaintiff knew of it, and believed him to be a
partner, he would be liable." Dickenson v. Valpy, 10 B. & C. 140.

So too in Shott v. Streatfield, 1 M. & Rob. 9, where the question was whether
Green was liable jointly with Streatfield, a witness proved that he had been

1202 WAUGH V. CAKVKU.

told in (Jrc'cn's presence that Green had become a partner. He was then
asked whetlier he hud repeated the information, on wliieli Camphfll ohji-etetl
that this was not eviilence, nnless it were siiown that the defendants, or one
of them, were present when it was repeated; .s.(/ per Lonl Tenterden, C. J.,
'• I tiiink it is; because othenciae it icill be saul jirmeutly, that irhat icaa said
was roitjiiifd to the icitness, and that the plain tiff ruuld tint have acted on it."

In A/derson v. Popes, 1 Camp. 404, n., it was held, that a man could not be
cliari?ed as a i)artner by one who, when he contracted, had notice that he was
but nominally so. The reason of this must have been, because he could not
have been deceived, or induced to deal witli the llrm, by any reliance on the
nominal partner's apparmt responsibility. And the same reason precisely
applies, whether the false impression on the customer's mind have lu-en put
an end to by a notice, or whether in conse(iuence of his i^rnorance that the
nominal i)artner's name liad been used, no false imj)ression ever existed (m
his mind at all. (See Carter v. Whalley, 1 B. & Ad. 11; Ford v. W'hitnutrch,
Exch. Mich. 1841 ; 1 Hurls. & Walm. 53; Pott v. Eijton, 3 C. B. 32; [Edmuml-
snn V. Thompson, 31 L. .1. Kxch. 207; Stephens v. Pei/nnlds, 2 Fost. & Fin.
147.])

However, in order to tix a person with this description of liability, no par-
ticular mode of hnhlinj; himself out is requisite. If he ilo acts, no matter of
what kintl, sulllcient to induce others to believe him a |)artner, he will be
liable as such. See Spencer v. liillimi, 3 Camp. 310; Parker v. liarkir, 1 B. &
B. !>; 3 More, 22t; ; [(litrneij v. Erans, 3 II. & N. 122; Ex parte Good, in re
Arniilaije, ."i Ch. 1). 4(;. 4<! L. J. Ch. Go ; Ex parte Ilayman, in re Pulsford, 8 Ch.
1). 11, 47 L. J. Ch. Bank. :,\, and see Jlofjarlh v. Latham & Co., 3 Q. B. 1).

<;43.]

But a man wiio de>(ril)es himself as a jiartner with another in one particu-
lar business does not thereby hold himself out as such in any other business
which that other may happen to i)rofess. Pe Berkom v. Smith, 1 Esp. 2!);
Pidr/wiif v. Philip, '> Tyrw. 131.

Nor is a i)erson liable as a nondnal jtartner, because others, without his
consent, use his name as that of a member of their llrm, even althoufrh he
may have previously belon;;ed to it, provided he have taken the proper steps
to notify his retirement. Netrsome v. Coles, 2 Camp. 617.

Nor, as has been already stated, can a man be charged as a member of the
firm by one who had express notice that he was but nominally so. Alderson
V. Popes, 1 Camp. 404, in notis.

The test of partnership laid down. — The law in America
u})Oii this subject is in an unsatisfactory state. The doctrine
laid down in Waugh v. Carver, that an indefinite participation
in profits makes one a partner as to third persons, because by
such participation the fund on which creditors rely is dimin-
ished, was formerly quite generally accepted in this country,
though not ahvays without some modification ; 3 Kent, * 27 ;
Dob V. Halsey, 16 John. 40; Manhattan Brass Co. v. Sears, 45
N. Y. 797 ; Leggett v. Hyde, 58 N. Y. 272 ; s. c. 17 Am. Rep.

WAUGH V. CARVER. 1208

244, Wood V. Vallette, 7 Ohio St. 172; Bromley v. Elliot, 38
K. H. 287, 306 ; Parker v. Caiifield, 37 Conn. 250 ; Everett v.
Chapman, 6 Conn. 347 ; Bigelow v. Elliot, 1 Cliff. 28 ; Winship
V. Bank of U. S., 5 Pet. 560 ; Appleton v. Smith, 24 Wis. 331 ;
Sheridan v. Medara, 10 N. J. Eq. 469 ; Lengle v. Smith,' 48
Mo. 276 ; Bailey v. Clark, 6 Pick. 372 ; Sager v. Tupper^
38 Mich. 258 ; Strader v. White, 2 Neb. 348 ; Dalton City Co.
V. Hawes, 37 Ga. 115 ; Buckner v. Lee, 8 Ga. 285 ; Brown v.
Higginbotham, 5 Leigh (Va.) 583 ; Cox v. Delano, 3 Dev. N. C.
89; Rowland v. Long, 45 Md. 439; Purviance v. McClintee, 6
S. & R. 259 ; Brigham v. Dana, 29 Yt. 1, 9 ; Wright v. Davidson,
13 Minn. 449; Brown v. Cook, 3 N. H. 64. For a late case
which quotes with approval the opinion that a communion of
profits implies a communion of loss, see Bloomfield v. Buchanan,
13 Or. 108 (1885).

Limitations of rule: gross and net profits. — Among the limita-
tions or modifications which have been made upon the broad
rule of Waugh v. Carver, is the idea that while a sharing of net
profits makes one liable as a partner, such liabilities do not
follow from a sharing of gross profits ; St. Denis v. Saunders,
36 Mich. 369 ; Gass v. New York, Providence & Boston R. R.
Co., 99 Mass. 220 ; Chapman v. Eames, 67 Me. 452 ; Cutler v.
Winsor, 6 Pick. 335; Turner v. Bissell, 14 Pick. 192; Chase
V. Barrett, 4 Paige, 148, 159; Bowman v. Bailey, 10 Yt. 170;
Pattison v. Blanchard, 1 Seld. 186; Merrick v. Gordon, 20
N. Y. 93 ; Butterfield v. Lathrop, 71 Pa. St. 225 ; Ellsworth v.
Tartt, 26 Ala. 733. This distinction between sharing gross and
net profits as a test of partnership, has been severely criticised ;
Story on Part., 7th ed. § 36 n. ; 3 Kent, *25, n. [12th &
13th eds.].

Some cases, wdiile apparentl}^ following the distinction be-
tween gross and net profits, have so modified it as to place the
decisions on firmer grounds ; Thompson v. Snow, 4 Grnl. 264 ;
Loomis V. Marshall, 12 Conn. 69 ; Donnell v. Harshe, 67 Mo.
170 ; Musser v. Brink, 68 Mo. 242.

A division of profits means net profits ; Connolly v. Davidson,
15 Minn. 519.

Sharing profits as profits. — Another distinction appUed to
the rule of Waugh v. Carver, and closely connected with that
between gross and net profits, was that one was to be held
liable as a partner when he was entitled to a share of the profits

1204 AVAl (ill W ( AKVKK.

as profits, l)ut not if lie was merely to receive payments which
were to vary with the profits, or a sum equal to a certain part
of the 2>i"ohts. This gave opj)ortunity for niakiiii^ extri'iiicly
fine distinctions; Brockway v. Huniap, !•! JJarh. oOll ; Picrsoii
V. Steinmyer, 4 Rich. L. 309; Looinis v. ^hirshall, 12 Conn. CD;
Turner v. liissell, 14 Pick. 192; Miller v. Bartlctt, 15 S. & U.
1:57; Irwin v. Bidwell, 72 Pa. St. 244; Eastman r. Clark, 53
N. II. 27(3; Ben.son v. Ketchum, 14 N. Y. 331, 355; Miller v.
Bartlett, 15 S. & 11. 137. For other cases showing moditica-
tions of the rule in Waugh v. Carver see cases cited infra in
regard to a share of tlu^ profits being given as compensation for
services, as rent, as interest, k.Ve.

Modification of rule in different states. — Some states have
iiioiUruMl the rul(! as laid down in Waugh v. Carver, or have
reversed the earlier decisions which followed that case.

New York : The general i-ule of Waugh i\ Carver is still
stated to be law, but certain limitations have been made ; Cen-
tral City Savs. Bank v. AValker, 66 N. Y. 424 ; Richardson r.
Ilugliett, 76 Id. 55; s. c. 32 Am. Rep. 267; Eager v. Crawford,
76 id. 97; Burnett v. Snyder, 81 Id. 550 ; s. c. 37 Am. Rep. 527.
This case holds: "We have in this state adhered to the general
doctrine established by the earlier English cases ; and although
it proceeds upon reasons which have not been considered en-
tirely satisfactory, it was applied by this court in the recent
case of Leggett v. Hyde, 58 N. Y. 272. But the participation
in the profits of a trade which makes a person a partner as to
third persons is a participation in the profits as such, under cir-
cumstances which give him a proprictar}' interest in the profits
before division as principal trader, and the right to an account
as partner and a lien on the partnership assets in preference to
individual creditors of the partner." This opinion does not
seem consistent with itself. It is held in New York that one
does not become liable as partner because he is " to receive a
share of the profits as a compensation for his services, or for
money loaned for the benefit of the business." Curry v. Fow-
ler, 87 N. Y. 33 ; Cassidy v. Hall, 97 Id. 159.

Ohio : Harvey v. Childs, 28 Ohio St. 319 approves Cox v.
Hickman, instead of following "Wood v. Valette, 7 Ohio St. 172.
See Farmers' Ins. Co. v. Ross, 29 Ohio St. 429.

Pennsylvania : The statute of April 6th, 1870 (Purdon 1299,
pi. 16, and 1300, pi. 17), provides that one may receive a share

WAUGH V. CARVER. 1205

of the profits as interest on money loaned or as compensation
for services, without becoming liable as partner. Hart v.
Kelley, 83 Pa. St. 286. The broad rule of Waugli v. Carver
had been modified prior to the statute. Irwin v. Bidwell, 72
Pa. St. 244 ; Edwards v. Tracy, 62 Pa. St. 381.

New Hampshire: Eastman v. Clark, 53 N. H. 276; s. c. 16
Am. Rep. 192 overthrows the old rule and follows Cox v.
Hickman.

Connecticut: It is now held that the sharing of profits as
profits is primd facie proof that one is liable as partner, but
that a share of the profits may be received as compensation for
services, as rent, and in some other cases without creating a
partnership even as regards third persons. Parker v. Canfield,
37 Conn. 250 ; Citizens' Bank v. Hine, 49 Conn. 236. But the
idea that one who takes part of the j^rofits diminishes the fund
on which creditors rely, does not seem to be wholly abandoned.
Citizens' Bank v. Hine, supra, p. 241.

Wisco7isin : The rule of Waugh v. Carver has been adopted ;
Appleton V. Smith, 24 Wis. 331 ; Rosenfield v. Haight, 53 Wis.
260. But an exception in regard to receipt of profits as com-
pensation for services is established ; Nicholaus v. Thielges, 50
Wis. 491 ; Ford v. Smith, 27 Wis. 267.

Massachusetts : The rule is stated to be that a person who has
not agreed to be a partner, nor held himself out as a partner, is
yet liable as a partner to third persons, if by the agreement
under Avhich the business is carried on, he has an interest in a
certain share of the profits as profits and a lien on the whole
profits as security for his share ; Pratt v. Langdon, 97 Mass.
97 ; 12 Allen 546 ; Holmes v. Old Colony R. R. Co., 5 Gray 58;
La Mont v. Fullam, 133 Mass. 583 ; Pettee v. Appleton, 114 Id.
114 ; Dame v. Kempster, 15 N. E. Rep. 927. See also cases in
other states where a somewhat similar rule has been adopted.
Champion v. Bostwick, 18 Wend. 175 ; Reynolds v. Hick, 19
Ind. 113 ; Sankey v. Columbus Iron Works, 44 Ga. 228 [a case
under the code] ; Delaney v. Dutcher, 23 Minn. 373; Bradshaw
V. Apperson, 36 Tex. 133; Rowland v. Long, 45 Md. 439; Camp-
bell V. Dent, 54 Mo. 325 ; Bigelow v. Elliot, 1 Cliff. 28 ; Chap-
line V. Conant, 3 W. Va. 507. For criticism of this rule, see
Story on Part., 7lli ed., § 49 n. In Fitch v. Harrington, 13
Gray 468, there was an agreement by one partner with a third
person that he should share a part of the profits of the firm,

1200 WAUGH V. CAKVEK.

and the court said, " An agreement between one co-partner and
a third person, that he shall participate in the profits of the firm,
as profits, renders him liable, as a partner, to the creditors of the
firm, although as between himself and the memljers of the firm
he is not their co-partner ; but if such third person by his agree-
ment with one member of the firm is to receive compensation
for his labor, services, &c., in proportion to the profits of the
business of the firm, without having any special lien on the
profits, to the exclusion of other creditors, he is not liable for
the debts of the firm." See Rockafellow v. ]\Iiller, 14 N. K.
Rep. 433. Where several persons signed articles of association,
intending to form a corporation, but the association failed to
become a corporation because the re({uirements of the statute
were not complied with, and certain persons carried on the l)nsi-
ness intended to be carried on In' the corporation as agents of
the proposed coi-poration, with knowledge of all the defendants,
it was held that the defendants were not liable as partners,
whether they had subscribed for stock of the proposed corpora-
tion or not, as "no such relation was contemplated by any of
the parties " ; Ward v. Brigham, 127 Mass. 24.

Neiu Jcrxei/: Wild v. Davenport, 48 N.J. L. 129, follows Cox
V. Hickman.

3Iissouri : In Donnell r. Ilarshe, ()7 Mo. 170, there was an
agreement that one should occupy and cultivate a farm and that
the crops should be divided e([ually between the occupant and
the owner. It was held that no partnership was necessarily
created, as something more than mere sharing of profits is essen-
tial to make a partnership. See also 68 !Mo. 242. In Kellog
Newspaper Co. v. Farrell, 88 Mo. 594, the court quoted from
McDonald v. Matne}^ 82 Mo. 358* " That a mere participation
in profits and loss does not necessarily constitute a partnership
between the parties so participating. ... It is a question of
intention. . . . Each case must be determined upon its own
peculiar facts." See also Clifton v. Howard, 89 Mo. 192. In
Kelly V. Gaines, 24 Mo. App. 506, it was held that in oider to
create a partnership there must not only be a sharing of profits,
but each person must have an interest in the profits as principal
trader.

JlicMgan. : The later Michigan cases follow Cox v. Hickman,
and late English cases ; Beecher v. Bush, 45 Mich. 188 ; Col-
well V. Britton, 59 ^Vlich. 350.

WAUGH V. CARYER. 1207

Georgia : The Code, § 1890, provides, "A joint interest in the
partnership property, or a joint interest in the profits and losses
of the business, constitutes a partnership as to third persons.
A common interest in the profits alone does not." See Dalton
City V. Hawes, 37 Ga. 115 ; Camp v. Montgomery, 75 Ga. 795,
and cases cited.

Present American rule. — - Under the influence of the severe
criticism made upon the I'ule laid down in Waugh v. Carver,
and particularly since the case of Cox v. Hickman, 9 C. B. N. S.
47, 8 H. of L. C. 268, 30 L. J. C. P. 125, decided in 1860, the
American cases have very largely abandoned the doctrine of
Waugh V. Carver. The tendency of the courts in this country
is to hold that one is not liable to third persons as a partner
unless there is a partnership inter sese, except where one has
held himself out as a partner, so that the doctrine of estoppel
applies. In deciding whether there is a partnership inter sese
the effect of the whole contract between the parties must be
considered, and the relation the parties have assumed to each
other must be determined by reference to all its parts. The
fact that there is in the contract an agreement to share profits
is strong, though not conclusive, evidence of partnership, and
such an agreement will establish the partnership in the absence
of other controlling evidence ; Meehan v. Valentine, 29 Fed.
Rep. 276 ; In re Francis, 2 Sawyer 286 ; s. c. 7 Bank. Reg. 359;
Be Ward, 8 Rep. 136 ; Culley v. Edwards, 44 Ark. 423 ; Le
Fevre v. Castagnio, 5 Col. 564 ; Vinson v. Beveridge, 3 Mac-
Arthur (D. C.) 597 ; Smith v. Knight, 71 111. 148 ; s. c. 22 Am.
Rep. 94; Williams v. Soutter, 7 Iowa 435; Chaffraix v. Laffite,
30 La. An., Part 1, 631 ; Beecher v. Bush, 45 Mich. 188 ; s. c.
40 Am. Rep. 465 ; Kellog Newspaper Co. v. Farrell, 88 Mo.
594 ; Col well v. Britton, 59 Mich. 350 ; s. c. 26 N. W. Rep. 538 ;
Parchen v. Anderson, 5 Montana, 438 ; Wild v. Davenport, 48
N. J. L. 129 ; Hart v. Kelley, 83 Pa. St. 286 ; Boston &c'., Smelt-
ing Co. V. Smith, 13 R. i. 27 ; s. c. 43 Am. Rep. 3. In Be
Randolph, 1 Out. App. 315 ; Sankey v. Columbus Iron Works,
44 Ga. 228 (a case on construction of the code) ; Eastman v.
Clark, 53 N. H. 276; Blair v. Shaeffer, 33 Fed. Rep. 218;
Harvey v. Childs, 28 Ohio St. 319 ; Clifton v. Howard, 89 J\Io.
192 ; Kelley v. Gaines, 24 Mo. App. 506 ; Sailors v. Nixon-
Jones Printing Co., 20 111. App. 509; Wilcox v. Matthews, 44
Mich. 192; Ilolden v. French, 68 Me. 241; Fourth Nat'l. Bank

1208 WAUGH V. CAJtV^EU.

V. Altheiiuer, 91 Mo. 190. Sue also Darling v. Belhouse, 19
U. C. C B. 2G8. While the fiiet thiit one is entitled to a .share
of the prolit.s is not eonclusive evidenee of partnership, yet it
has been held that one cannot be a partner unless he lias a
right to share in the profits; in other words, communion of
profits is necessary to a partnership ; Irvin v. N., C. & St. L. Ry.
Co., 92 111. 108; Jones v. Howard, .')3 :Miss. 707.

Cases where sharing profits does not create partnership. — A
sharing of piolits docs not make one a partner, even as regards
third persons, in the following cases.

Share of profits as compensation for services. — A. Where a
share in the profits is given as com])en.sation lor services;
Buzard v. Greenville Nat'l. Bank, 67 Tex. 83; s. c. 2 S. W.
Rep. 54 ; Mason v. Hacket, 4 Nev. 420 ; Marsh v. N. W. Nat'l
Ins. Co., 3 BLss. 351; Donley v. Hall, 5 Bush (Ky.) 549;
Holmes v. Old Colony R. R. Co., 5 dray 58; Bigelow v. Elliot,
1 Cliff. 28; Vinson v. Beveridge, 3 MacArthur (D. C.) 597;
Pierson v. Steinmyer, 4 Rich. L. 300, 319; Leggett v. Hyde, 58
N. Y. 272; Wheeler v. Farmer, 38 Cal. 203; Holden v. French,
68 Me. 241 ; Parker v. Fergus, 43 111. 4:',7 ; Burton v. Good-
speed, 09 111. 237; Edwards v. Tracy, (52 Pa. St. 374; Muzzy
V. Whitney, 10 Johns. 22G ; McArthur v. Ladd, 5 Ohio St. 514;
Ellsworth V. Pomeroy, 26 Ind. 158 ; Morrison v. Cole, 30 Mich.
102; Dale v. Pierce, 85 Pa. St. 474; Ilolbrook v. Obeine, 56
Iowa 324 ; Le Fevre v. Castagnio, 5 Col. 564 ; Shepard v.
Pratt, 16 Kan. 209; Commonwealth v. Bennett, 118 Mass. 443;
Mauney v. Colt, 86 N. C. 463 ; Newman v. Bean, 21 N. H. 93 ;
Loomis V. Marshall, 12 Conn. 69 ; Berthold v. Goldsmith, 24
How. 536; Missouri &c., R. Co. v. Johnson, 7 S. W. Rep. 838;
Randle v. State, 49 Ala. 14 ; Morgan v. Stearns, 41 Vt. 398 ; Wil-
kinson V. Gett, 7 Leigh (Va.) 115 ; s. c. 30 Am. Dec. 493 ; Price
V. Alexander, 2 G. Greene (Iowa) ; s. c. 52 Am. Dec. 526 ; Day
V. Stevens, 88 N. C. 83; Chapman v. Liscomb, 18 S. C. 233.
But some cases have held that if one was entitled to a share of
the profits, though it was intended as compensation for ser-
vices, yet he became of necessity, because of his sharing in
the profits, liable as a partner; 1 A. K. Marshall (Ky.) 181;
Taylor v. Terme, 3 Har. & J. 505. See also Rowland v. Long,
45 Md. 439 ; Strader v. White, 2 Neb. 348 ; Motley v. Jones, 3
Ired. Eq. 144; Purviance v. McClintee, 6 S. & R. 259; Ditsche
V. Becker, 6 Phil. 176 : Beckwith v. Talbot, 2 Col. 639. An

WAUGH V. CAP.VEE. 1209

agreement that a person shall have a part of the profits as
salary will not prevent his being held to be a partner if the
whole agreement shows that a partnership was intended ;
Brigham v. Clark, 100 Mass. 430.

Share of profits as rent. — B. Where a share of the profits is
given as rent or for the use of personal property ; Bigelow v.
Elliot, 1 Cliff. 28 ; Beecher v. Bush, 45 Mich. 188 ; s. c. 40 Am.
Rep. 465; Holmes v. Old Colony R. R. Co., 5 Gray 58; McDon-
ald V. Battle House Co., 67 Ala. 90; s. c. 42 Am. Rep. 99;
Quackenbush v. Sawyer, 54 Cal. 439 ; Parker v. Fergus, 43 111.
437. See Smith v. Vanderburg, 46 Id. 34, where a portion of
the profits was given as compensation for a secret and for stock
on hand ; Keiser v. State, 58 Ind. 379 ; Reed v. Murphy, 2 G.
Greene (Iowa) 574 ; Thompson v. Snow, 4 Me. 264 ; s. c. 16
Am. Dec. 263, a case where a vessel was let. See, also, 57 Id.
543 ; Thayer v. Augustine, 55 Mich. 187 ; Ferine v. Hankieson,
11 N. J. L. 181 ; Heimstreet v. Howland, 5 Den. 68, where a
ferry was let for part of the profits ; Johnson v. Miller, 16 Ohio
431 ; Irwin v. Bidwell, 72 Pa. St. 244, 251 ; Brown v. Jaquette,
94 Id. 113 ; s. c. 39 Am. Rep. 770 ; England v. England, 1 Bax-
ter 108 ; Tobias v. Blin, 21 Vt. 544 ; Felton v. Deall, 22 Id. 170 ;
Bowyer v. Anderson, 2 Leigh (Va.) 550 ; Chapline v. Conant,
3 W. Va. 507 ; Haydon v. Crawford, 3 U. C. Q. B. (old ser.)
583 ; Hawley v. Dixon, 7 U. C. Q. B. 218; Great Western Ry.
Co. V. Breston & Berlin Ry., 17 Id. 477 ; La Mont v. FuUam,
133 Mass. 583. But see contra, Dalton City Co. v. Dalton
Manf. Co., 33 Ga. 243 ; Holifield v. White, 52 Ga. 567 ; Adams
V. Carter, 53 Id. 160.

Share of profits as interest. — C. Where a share of the jDrofits
is given as interest ; Neihoff v. Dudley, 40 111. 406 ; Smith v.
Vanderberg, 46 Id. 34 ; Lintner v. Milliken, 47 111. 178 ; Eshle-
man v. Harnish, 76 Pa. St. 97. [See Pa. Statute, supra.^ But
some cases following the earlier English decisions hold that one
who takes a share of the profits as interest, thereby becomes lia-
ble as a partner to third persons. Sheridan v. Medara, 10 N. J.
Eq. 469 ; Pierson v. Steinmyer, 4 Rich. L. 309 ; Wood v. Valette,
7 Oliio St. 172 ; Parker v. Canfield, 37 Conn. 250 ; McDonald v.
Millandon, 5 La. 403 ; Rosenfield v. Haight, 53 Wis. 260. In
Sheridan v. Medara and Pierson v. Steinmyer, supra, the partner-
ship was held to be created when the contract was usurious. But
it has been held that a partnership will not be inferred because

1210 WAUtMl V. CAKVER.

a contract for interest is usurious. Plunkett v. Dillon, 4 Del.
Ch. 198 ; Richards v. Hughitt, 70 N. Y. 55 ; s. e. 82 Am. Rep.
267 ; Irwin v. Bidwell, 72 Pa. St. 244. An excessive share of
the profits has, however, been held to create a partnership ;
Kargrave v. Conroy, 19 N. J. Eq. 281 ; Oppenheinier v. Cleni-
mons, 18 Fed. Rep. 886; Brigham v. Dana, 29 Vt. 1, 9 ; 72e
Francis, 2 Sawy. 286; s. c. 7 Bank. Reg. 359; I'arker v. Can-
field, 37 Conn. 250; s. c. 9 Am. Rep. 317. In order that a
share of the profits as interest should not create a partnership,
there should be a hand fide loan which is to be repaiil in any
event; Harris v. Ilillegass, 54 Cal. 463; Wood v. Valette, 7
Ohio St. 172; Brigham v. Dana, 29 Vt. 1, 9; Rosenfield v.
Haight, 53 Wis. 260 ; s. c. 40 Am. Rep. 770. If the loan is a
mere device to avoid the liability of partnership, then tlie parties
will be held to be ])artners : In Re Francis, 2 Sawy. 286.

Share of profits from funds left in business. — I). Where lega-
tees receive profit« from funds left in a business, by order of
testator, they do not become liable for the debts of the business;
Jones V, Walker, 103 U. S. 444; Pitkin v. Pitkin, 7 Conn. 307;
s. c. 18 Am. Dec. 111. See Heighe v. Littig, 63 Md. 391 ;
Phillips V. Samuel, 76 Mo. •)57.

But where, under partneiship articles, in case of the death of
one partner his childien were to succeed to his interest until
the expiration of the partnership contract, and they did so
succeed, on their father's death, it was held that they became
liable to creditors as partners ; Nave v. Sturges, 5 Mo. App. 557.

Agreement that losses shall not be shared. — Where there is
an agreement to share profits, the niere fact there is an agree-
ment that a certain person is not to share losses does not relieve
him from liability as a partner as to third persons if otherwise
the contract shows him to be such ; Pollard v. Stanton, 7 Ala.
761 ; Camp v. Montgomery, 75 Ga. 795 ; Consolidated Bk. v.
State, 5 La. Ann. 44 ; Robbins v. Laswell, 27 111. 365 ; Rowland
V. Long, 45 Md. 439 ; Bank of Rochester v. Monteath, 1 Den.
402 ; Walden v. Sherburne, 15 Johns. 409. See, also, Clift v.
Barrow, 15 N. E. Rep. 327. Contra, Whitehill v. Shickle, 43
Mo. 537.

Holding out as partner. — As has already been intimated, one
who has held himself out as a partner or allowed himself to be
so held out is liable as a partner, though as a matter of fact
he was not actually a partner ; Smith v. Hill, 45 Vt. 90 ; Stim-

WAUGH Y. CAEVER. 1211

son V. Whitney, 130 Mass. 591 ; Dailey v. Coons, 64 Ind. 545 ;
Carmichael v. Greer, 55 Ga. 116 ; Cothill v. Van Duzen, 22 Vt.
511; In re Jewett, 15 N. B. R. 126.

But " one who had no knowledge or belief that the defendant
was held out as a partner, and did nothing on the faith of such
knowledge or belief, cannot charge him with liability as a part-
ner, if he was not a partner in fact " ; Thompson v. First Nat'l
Bk., Ill U. S. 529.

Effect of whole agreement considered. — If the whole agree-
ment shows the parties to have assumed the relation of partners,
there will be held to be a partnership though the parties did
not intend to be partners, and even though they had provided
that they were not to be so considered ; Haas v. Root, 26 Hun
632 ; Rosenfield v. Haight, 53 Wis. 260 ; Cooley v. Broad, 29
La. An. 345.

But an agreement that there shall be no partnership has been
held valid between the parties ; Gill v. Kuhn, 6 S. & R. 338,
338 ; Jordan v. Wilkins, 3 Wash. C. Ct. 110. And also against
third persons who had knowledge of the agreement ; Hastings
V. Hopkinson, 28 Vt. 108 ; Chapman v. Devereux, 32 Id. 616,
623. See, also, Baily v. Clark, 6 Pick. 372.

CUTTER V. POWELL.

TRINITY— m (iEO.:\.
[reported G t. k. 320.]

If a sailor hired for a voyage take a promi88ory note from his
employer for a certain sum,, provided he proceed, continue, and
do his duty on hoard for the voyage, and htfore the arrival of
the ship he dies, no tvayes can be claimed either on the contract
or on a quantum meruit.

To assumpsit for work and labour done by the intestate, tlie
defendant pleaded the general issue. And at the trial at Lan-
caster, the jury found a verdict for the plaintiff for 31/. 10s.,
subject to the opinion of this court on the following case : —

The defendant being at Jamaica, subscribed and delivered to
T. Cutter, the intestate, a note, whereof the following is a copy:
" Ten days after the ship Governor Parry, myself master, arrives
at Liverpool, I promise to pay to Mr. T. Cutter the sum of
thirty guineas, provided he proceeds, continues, and does his
duty, as second mate, in the said ship from hence to the port
of Liverpool. Kingston, July 31st, 1793." The ship Governor
Parry sailed from Kingston on the 2nd of August, 1793, and
arrived in the port of Liverpool on the 9th of October follow-
ing. T. Cutter went on board the ship on the 31st of July,
1793, and sailed in her on the 2nd day of August, and pro-
ceeded, continued, and did his duty as second mate in her
from Kingston until his death, which happened on the 20th of
September following, and before the ship's arrival in the port
of Liverpool. The usual wages of a second mate of a ship on
such a voyage, when shipped by the month out and home, is
four pounds per month ; but when seamen are shipped by the
run from Jamaica to England, a gross sum is usually given.

1212

CUTTER V. POWELL. 1213

The usual length of a voyage from Jamaica to Liverpool is
about eight weeks.

This was argued last term b}- J. Hayu'ood for the plaintiff,
but the court desired the case to stand over, that inquiries
might be made relative to the usage in the commercial world
on these kinds of agreements. It now appeared that there was
no fixed settled usage {a) one way or the other ; but several
instances were mentioned as having happened within these
two years, in some of which the merchants had paid the whole
wages under circumstances similar to the present, and in others
a proportionable part. The case was now again argued by

Chamhre for the plaintiff, and Wood for the defendant.

Arguments for the plaintiff. — The plaintiff is entitled to
recover a proportionable part of the wages on a quantum meruit,
for work and labour done by the intestate during that part of
the voyage that he lived and served the defendant ; as in the
ordinary case of a contract of hiring for a year, if the servant
die during the year, his representatives are entitled to a pro-
portionable part of his wages. If any defence can be set up
against the present claim, it must arise either from some known
general rule of law respecting marine service, or from the
particular terms of the contract between these parties. But
there is no such rule applicable to marine service in general as
will prevent the plaintiff's recovering, neither will it be found,
on consideration, that tliere is anything in the terms of this
contract to defeat the present claim. It is indeed a general
rule that freight is the mother of Avages (/>) ; and therefore if
the voyage be not performed, and the owners receive no freight,
the sailors lose their wages ; though that has some exceptions
where the voyage is lost by the fault of the owners, as if the
ship be seized for a debt of the owners, or on account of having
contraband goods on board : in either of which cases the sail-
ors are entitled to their wages, though the voyage be not per-
formed. Vin. Abr. "Mariners," 235. But here the rule itself
does not apply, the voyage having been performed, and the

(a) See the notes to Wigglesworth on the earninc: of freight. See The

V. DaUison, ante, vol. i. Mercliant Shipping Act, 1854 (17 &

(6) See, on that .subject. Appleby 18 Vict. c. 104), s. 183. The rule

V. Dods, 3 East, 300; The Neptune, 1 mentioned in the text never applied

Hagg. 227. [The right of a seaman to the wages of the master. Hawkins

to wages is now no longer dependent v. Twizell, H E. & B. 883.J

1214 CrTTKK \. I'nWKLL.

owners having earned their ftei<j;:lii. There is also another
general rule, that if a sailor desert, he sliall lose his \viiges(<j>;
but that is founded upon puhlie j)olu y, and was introtluee<l as
a means of {)reserving the shij). Hut that rale cannot apply to
this case ; for there the sailor forfeits his wages hy his own
wrongful act, whereas here the seaman was prevented eoni-
pleting his contract by the act f)f (lod. So if a mariner i)o
impressed, he does not forfeit his wages; for in Wi<jijin» v.
In<ih't()H (/>), Lord Holt held, that a seaman, who was impressed
before the ship returned to tiie port of delivi-ry, might recover
wages jwro tanto. Neither is there anything in the terms of this
contract to prevent the [daintiff's recovering on a ijuuHtum
meruit. The note is a set-urity, and not an agreement ; it is in
the form of a promissory note, and was given by the master of
the ship to the intestate to secure the jiayment of a gross sum
of money, on condition that tiie intestate should Ihj able to, and
should aitually, perform a given duty. The condition was
inserted to i)revent tiie desertion of the intestate, and to ensure
his good I'onduct during the voyage. And in cases of this
kind, the contract is to be construed liberally. In Edinirth v.
CJillif (r), where the mariners had given bonds to the ICast
India Company not to demand their wagi's unless the ship
leturned to the port of London, it was held that as the ship
had saiU'd to India, and had there delivered her outward-bound
cargo, the mariners were entitled to their wages on the outward-
bound voyage, though the ship was taken on her return to
England. This note cannot be construed literally, for then
the intestate would not have been entitled to anything, though
he had lived and continued on board during the whole voyage,
if he had been disabled by sickness from performing his duty.
But even if this is to be considered as a contract between the
parties, and the words of it are to be construed strictly, still
the plaintiff is entitled to recover on a quantum meruit, because
that contract does not apply to this case. The note was given
for a specific sum to be paid in a given event ; but that event
has not happened, and the action is not brought on the note.
The parties provided for one particular case : but there was no
express contract for the case that has happened ; and therefore
the plaintiff may resort to an undertaking which the law

(ffl) [See Edward v. Trevethick, 4 {h) 2 Lord Kaym. 1211.

E. & B. 59.] (c) 2 Vern. 727.

CUTTER Y. POWELL.

1215

implies, on a quantum meruit for work and labour done by the
intestate. For though, as the condition in the note which may
be taken to be a condition precedent, was not complied with,
the plaintiff cannot recover the sum which was to have been
paid if the condition had been performed by the intestate, there
is no reason why the representative of the seaman, who per-
formed certain services for the defendant, should not recover
something for the work and labor of the intestate, in a case to
which the express contract does not apply.

Aro-uments on behalf of the defendant. — Nothing can be
more^'clearly established than that where there is an express
contract between the parties, they cannot resort to an implied
one. It is only because the parties have not expressed what
their agreement was, that the law implies what they would
have agreed to do had they entered into a precise treaty ; but
when once they have expressed what their agreement was, the
law will not imply any agreement at all. In this case the^ in-
testate and the defendant reduced their agreement into writing,
by the terms of which they must now l)e bound. This is an
entire and indivisible contract ; the defendant engaged to pay
a certain sum of money, provided the intestate continued to
perform his duty during the whole voyage ; that proviso is a
condition precedent to the intestate or his representative claim-
ing the money from the defendant, and that condition not
having been performed, the plaintiff cannot now recover any-
thing.'' If the parties had entered into no agreement, and the
inte5:ate had chosen to trust to the wages that he would have
earned and might have recovered on a quantum meruit, he
would only have been entitled to eight pounds; instead of
which, he expressly stipulated that he should receive thirty
guineas, if he continued to perform his duty for the whole
voyage. He preferred taking the chance of earning a large
sum, in the event of his continuing on board during the whole
voyage, to receiving a certain, but smaller rate of wages for
the time he should actually serve on board ; and having made
that election, his representative must be bound by it. In the
common case of service, if a servant who is hired for a year die
in the middle of it, his executor may recover part of his wages
in proportion to the time of service (a) ; but if the servant

(a) The old law was otherwise; "Contract," pi. 31; and Worth v.
Vid. Bro. Abr. " Apportionment," pi. Viner, 3 Vin. Abr. S and 9.
13; ib. "Labourers," pi. 48; ib.

1210 CITTKU V. I'OWKI.L.

aj]freed to receive a larger sum than tht- ordinary rate of wages,
on the express condition of his serving the whoK' year, his
executor would not he entitled to any part of such wages in
tlie event of the servant dying before the expiration of the
year. The title to marine wages by no means depends on the
owners l)eing entitle(l to ficight ; for if the sailors desert, or do
not perform their duty, they are not entitled to wages though
the owners earn the freight. Nor is it conclusive agjiinst the
dcfeinlant that the intestate was prevented fullilling his eon-
tract by the act of God; for the same reason would apply to
the loss of a shij), which m;;}' eijually happen by the act of Clod,
Mini without any default in the sailors ; and yet in that ease the
sail<»rs lose their wages. Hut there are other cases that l)ear
ciiually hard upon contrai-ting parties, and in which an inno-
cent person must suiTcr, if the terms of his contract recpiire
it; f'.//., the ti'uant of a Ikuisc who covenants to pay rent, ami
who is bound to continue j)aying tin- rent, though the house
be burned (h)wn (</)• (I^oid h'rni/on, ("h. .1. liut that nuist
be taken with some qualilication : for where an acti(»n was
brought for rent after the house was burned down, and the
tenant applied to the Court of rhancery for an injunction.
Lord C. Xorthhujton said that if the tenant would give up his
lease, he should not be bound to pay the rent ('>).) With re-
gard to the case cited from '1 Lord Kaym., the case of a mariner
impressed is an excepted case, and the reason of that decision
was fountled on principles of public policy.

Lord Kcni/on, C. J. — I should 1x3 extremely sorry that, in
the decision of this case, we should determine against what has
been the received opinion in the mercantile world on contracts
of this kind, because it is of great importance that the laws by
which the contracts of so numerous and so useful a body of
men as the sailors are supposed to be guided, should not be
overturned. Whether these kind of notes are much in use
among the seamen we are not sufliciently informed ; and the
instances now stated to us from Liverpool are too recent to
form anything like usage. But it seems to me at present that
the decision of this case may proceed on the particular words

(rt) Vide Bel/our v. Weston, ante. overruled. Hare v. Groves, 3 Anst.

1 T. R. 310. 687. Holtzapffel v. Baker, 18 Ves.

(6) Vide Broicn v. QuiKer, Amh\. 115. See Bullock \. Domniitt, G T.li.

G19. This doctrine is, however, now 650.

CUTTER V. rOWELL. 1217

of this contract and the precise facts here stated, without
touching marine contracts in general. That where the parties
have come to an express contract none can be implied, has
prevailed so long as to be reduced to an axiom in the law.
Here the defendant expressly promised to pay the intestate
thirty guineas, provided he i^oceeded^ coyitmued and did his
duty as second mate in the ship from Jamaica to Liverpool ;
and the accompanying circumstances disclosed in the case are,
that the common rate of wages is four pounds per month,
when the party is paid in proportion to the time he serves, and
that this voyage is generally performed in two months. There-
fore, if there had been no contract between these parties, all
that the intestate could have recovered on a quantum vieruit
for the voyage would have been eight pounds ; whereas here
the defendant contracted to pay thirty guineas, provided the
mate continued to do his duty as mate during the whole voy-
age, in which case the latter would have received nearly four
times as much as if he were paid for the number of months he
served. He stipulated to receive the larger sum if the whole
duty were performed, and nothing unless the Avhole of that
duty were performed: it was a kind of insurance. On this
particular contract my opinion is formed at present; at the
same time I must say, that if we were assured that these notes
are in universal use, and that the commercial world have re-
ceived and acted upon them in a different sense, I should give
up my own opinion.

Ashurst, J. — We cannot collect that there is any custom
prevailing among merchants on these contracts ; and therefore
we have nothing to guide us but the terms of the contract
itself. This is a written contract, and it speaks for itself.
And as it is entire, and as the defendant's promise depends on
a condition precedent to be performed by the other party, the
condition must be performed before the other party is entitled
to receive anything under it. It has been argued, however,
that the plaintiff ma}^ now recover on a quantum meruit ; but
she has no right to desert the agreement ; for wherever there
is an express contract the parties must be guided by it, and one
party cannot relinquish or abide by it as it may suit his advan-
tage. Here the intestate was, by the terms of his contract, to
perform a given duty, before he could call upon the defendant
to pay him anything : it was a condition precedent without

1218 CUTTKK V. roWELL.

j)erf()rming whicli tlic dt ri'iidiiiit is lujt lijihli-. Aiul that Hcems
to me to concludt' tin* (lucstion: the intestate did not perform
the i(nitract on his part ; he was not iiuU-eil to bhinie for not
doiiij^ it; hilt still, as this was a condition [)reet'dent, antl as lie
did not ju 1 t'oiiii it, his representative is not t-ntith-d to rei-over.
Grotfi, .i. — In this case the plaintifl' nuist either recover on
the particnlar stipulation hetween the parties, or on ^onie j^en-
eral kii(»wn rule of law, the latter of which has not been much
relied ujjon. 1 have looke<l into the laws of Oleron ; and I
have seen a late case on this subject in the Court of Common
Pleas, Vhanilh-r \. Greavex (a). I have also inipiired into the
j)raetiee of the merchants in the eity, anil have Inren informed
that these contiacts are not considereil as divisible, and that
the seaman nnist perform the voyage, otherwise he is not
entitled to hi>; wages; tlu)Ugh I must add that the result of my
iM(|uiries has not been perfeitly satisfactory, ami therefore I
(U) not rely upon it. Tlu- laws of Oleron are extremely favour-
able to the seaman ; so much so, that if a sailor, who has agreed
for a voyage, be taken ill and put on shore before the voyage
is completed, he is nevertheless entitleil to his whole wages,
after deducting what has been laid out for him. In the ea.se
of Chandler v. Greaves, where the jury gave a verdict for the
whole wages to the plaintiff, who was j)ut on shore on account
of a broken leg, the court refused to grant a new trial, though
I do not know tlu' precise grounds on which the court pro-
ceeded. Howevi'r, in this case the agreement is conclusive;
the defendant only engageil to pay the intestate on condition
of his continuing to do his duty i»n board during the whole
voyage ; and the latter w;is to be entitled either to thirty
guineas or to nothing, for such was the contract between the
parties. And when we recollect how large a i)rice was to be
given in the event of the mate continuing on board during the
whole voyage, instead of the small sum which is usually given
per month, it may faiily be considered that the parties them-
selves understood that if the whole duty were performed the
mate was to receive the whole sum, and that he was not to
receive anything unless he did continue on board during the
whole voyage. That seems to me to be the situation in which
the mate chose to put himself; and as the condition was not

(a) Hil. 32 G. 3, C B.

CUTTEK V. POWELL. 1219

complied with, his representative cannot now recover anything.
I believe, however, that in point of fact, these notes are in com-
mon use, and perhaps it may be prudent not to determine this
case until we have inquired whether or not there has been any
decision upon them.

Lawrence^ J. — If we are to determine this case according to
the terms of the instrument alone, the plaintiff is not entitled
to recover, because it is an entire contract. In Salk. 65, there
is a strong case to that effect ; there, debt was brought upon a
writing by which the defendant's testator had appointed the
plaintiff's testator to receive his rents, and promised to pay him
100/. per annum for his service ; the plaintiff showed that the
defendant's testator died three quarters of a year after, during
which time he served him, and he demanded 75Z. for three quar-
ters : after judgment for the plaintiff in the Common Pleas, the
defendant brought a writ of error, and it was argued that with-
out a full year's service nothing could be due, for that it was in
nature oi a condition precedent ; that it being one consideration
and one debt, it could not be divided : and this court were of
that opinion, and reversed the judgment. With regard to the
common case of a hired servant, to which this has been com-
pared ; such a servant, though hired in a general way, is con-
sidered to be hired with reference to the general understanding
upon the subject, that the servant shall be entitled to his wages
for the time he serves, though he do not continue in the service
during the Avhole year. So if the plaintiff in this case could
have proved any usage that persons in the situation of this mate
are entitled to wages in proportion to the time they served, the
plaintiff might have recovered according to that usage. But if
this is to depend altogether on the terms of the contract itself,
she cannot recover anything. As to the case of the impressed
man, perhaps it is an excepted case ; and I believe that in such
cases the king's officers usually put another person on board to
supply the place of the impressed man during the voyage, so
that the service is still performed for the benefit of the owners

of the ship.

Postea to the defendant.

Unless some other information relative to the usage in cases of

this kind should be laid before the court before the end of this

term : but the case was not mentioned again.

lliliO CL'TTEU V. I'OWKLL.

Fkw (|iw.siiniis nro of •*>> fri<nifiit occuiTfnc-i', i>r <>f ho much practical
iinportuiKf, niul at the saiiii- time .so (lllllLult to solve. a.s tlioM* In wlilcli thu
dispute is, whether an action can be hrou;;ltt by one who has enter. .1 int.i a
Hpecial contract, part o( whlcli remains unperforme«l.

We tlud it laiil down in tlie treatises, that, in certain cases, the |Mii.,,tii-
ance of, or reatliness to perform, «Mie slile <»f the contract Is a condition pre-
cedent to tile ri;;lit to dennind performance of tlie otiier side. An«i rules are
jfiven in tlie text-bo(»ks for the purpose <>( enal)lint; us to distlni;ui>h these
cases from anotlier class, in wlii<-h no sucli conditiim exists. Iiut tRe con-
tractors are Ixiunil by nuituai independent covenants or promises. (See the
n«)tes to I'urilaijK v. (.%/<■, 1 Wms. Sainnl. ."»4.s, and to I'eeUra v. 0/<iV, 2 Wms.
Saund. 742, Ed. 1871.)

We lliid It also laid down, that no action of inilrhitntu* OMumpait, or upon a
quit Hi •an iitfrnit. can be broutfht for anything; done under a special agreement
wliich remains open; (•ordnn v. Murtin, Fitz!{il)b. 'M)'A\ HuUf v. llriijhtmitn, 2
Kast, 14.") : liut that, where the terms of tin* spi-clal ai;reement have luren per-
formed on one side, ami nothini; is to be done upon llie nther but a money
payment, such payment may be enforced l)y an action of iinUhit<HH» it»»uinpait.
Conhi- v. Mnnatnnr. \ H. i 1*. N. ;Cil ; \\ N. \\ i:Jl»; Ali-nrnf v. WetUhronkf, 1
Wils. 117; CliiU>rl>nrk- v. Ci>ffln, l\ M. & ii. hU; see Ituinrhi v. Sash, 1 M. &.
W. ■>4.'», and per Tiuiial, C. J., In (iria»tU v. liuhinunn, 3 BluR. N. C. H>-15,
citeil in SrnU v. PurkiT, 1 Q. B. H|0, where It was lieUI that the non-perfonn-
ance of astipulation, not Ih-Iu^ a condition precetlent to repayment, was no
objection to an action of inilrhitnliin ii.tituiitjtuil, for money lent.

We also lintl that there are some cases in which work has Iwen done, or
^oods sup|)lied. under a special a^reenu-nt, but not in conformity tliereto,
and yet the payment of a com|)ensation^ is enforced l)y action. i)ecause the
defendant lias retained and enjoyed tin' bent-lit of that whicli actually was
done. FuniKiriirth v. (liirntnL 1 Camp. ;?s. IVr I'arke, J., in lunil v. /iunu,
10 H. & C". 438.

And lastly, there are cases In which, even while the special contract remains
open, one party has been pcnnltted to put an end to it, and to sue for wliat
has been already done uniler it upon a nwinlum nvruit. Withers v. Rfynnlds,
2 B. & Ad. 882; Phtwhe v. Colhitrn, « Bin::. 14; [PnrhU v. Bnihjrr. 1 f. B.
N. S. 2;)().]

There is nodilllculty in tlndini; cases referal)le to each of the above classes,
but the real dilliculty is to iletermine when a case occurs In practice, to which
of tliem it is referable. In the present note it will be attempted to deduce
froiu the decisions a few rules, likely to prove useful in the resolution of
such a dilliculty.

The question it is proposed to discuss is as follows: — In ichat cases may
an action he brought by a person who has entered into a special contract a/jainst
the person icith ichom he has contracted, irhile the plaintiff's oirn side of the con-
tract remains unperfonned ? Now [since tliere is a distinction in the nature
of the actual rischts of parties to contracts which was well defined by the
now ol)solctc forms of action of special and indtbitatus assumpstt, it is still
convenient for purposes of analysis to subdivide the above question] into
two liranches : —

1. In what cases [might] the action [have been] brought into special
assttmpsit [or in other words] upon the contract itself?

2. In what cases might it have been brought in indebitatus assumpsit?

CUTTER V. POWELL. 1221

[The meaning of this latter question will l)e considered infra.'] The former
of these (iiiestions it ■\voukl be wrong to discuss here at much length, be-
cause it has been treated by Serjeant Williams in that clear and satisfactory
style which distinguishes his writings, in the notes to Pordage v. Cole, 1
Wms. Saund. 548 ; and Peeters y. Ojne, 2 Wms. Saund. 742. The result of the
elaborate discussion contained in those notes is as follows : —

There are some special contracts in which the promises upon the one side
are dependent on the pi'omises upon the other side, so that no action can be
maintained for non-performance of the former, without showing that the
plaintifi' has performed, or at least has been ready, if allowed, to perform,
the latter, the performance of, or readiness to perform which is said to be a
condition precedent to his right of action. Of this description was the case
of Morton v. Lamb, 7 T. R. 125, cited 2 Wms. Saund. 552 b. where the
declaration averred, that in consideration that the plaintifi" had bought of the
defendant 200 quarters of wheat at a certain price, the defendant undertook
to deliver it at a certain place in one month from the sale ; and that the plain-
tiff was always, for one month from the sale, ready and willing to receive the
wheat, but that the defendant did not deliver it. After verdict, the judg-
ment was arrested, on the ground that the declaration ought to have averred
that the plaintiff was ready and willing to pay the stipulated price upon
delivery ; and the court said, that where two concurrent acts w'ere to be done,
the party who sues the other for non-performance must aver that he has per-
formed, or was ready to perfoinn his own part of the contract. In such
cases as the one just cited, the matters to be done upon each side are said to
be concurrent acts, because by right they ought to be done at the same time;
and a readiness to perform his own side of the contract is a condition pre-
cedent to the right of either contractor to sue. Thus in agreements for the
sale of real property, where one party agrees to convey, and the other to pay
the price, the vendor cannot sue for the money without showing that he was
ready to convey ; nor the vendee for a refusal to convey, without showing a
readiness to pay the money. See Glazebrook v. Woodroiv, 8 T. R. 366; and
see Head v. Baldrcn, 6 A. & E. 459 ; Chanter v. Leese, 4 M. & W. 295. [S. C.
in error, 5 M. & W. G98, and White v. Beeton, 7 H. & N. 42.]

There are other cases in which one contractor must show a readiness to
perform his part before he can sue, but the other need not, as in the case
cited in Morton v. Lamb, where a party was to pull down a wall and then to
be paid for it : the pulling down was a condition precedent to the right to
enforce payment ; but a readiness to pay was not a condition precedent to the
right to oblige the defendant to commence the work. See Coombes v. Green,
11 M. & W. 480.

Other cases there are in which neither of the contractors is subjected to
any condition precedent to his right to enforce performance by the other of
his part ; but the promises on each side are independent of what is to be done
upon the other. Such was the case of Campbell v. Jones, 6 T. R. 570; in
which A. agreed, in consideration of a sum of money, to teach B. a particu-
lar method of bleaching for which he, A., had a patent, and to allow B. to
exercise that method during the continuance of the patent right. It was held
that A. might sue for the money, though he had not instructed B., who might
on his side, if he pleased, sue for the neglect to instruct him. In these cases,
t\\& promises on the one side, not the performance of those promises, are the
consideration for the promises upon the other side. In the former cases of
concurrent acts and conditions precedent, the consideration is the performance.

\'2'2'2 t I I 1 I l; \ . low i.i.L.

not tlu' promisf. Hohnrt, lOr, St »• Franklin v. Miller, 4 A. t E. 599 ; Corrall v.
('iilUll,\ M. & W. 7a4; in/Avt V. .V»;u7/i. 10 M. & W. Huj ; [Fearun v. /ly/M/..,)/.
14 g. U. 1). 7U2; 54 L. J. y. B. 33] ; anil Liater v. /VW'-y. 7 A. & E. 124. where
till- point arose on the eonstniction of a private Act of I'nrlinnu-nt. [Hut
altiioiit;li, wiiiU' tlic conlruet wum executory, perfornuuice nt n pnrtlcnlnr
stipiiliitioM niii;lit iuive l)een n condition prece<lent to the ri;;ht «)f the party
niaiviiii: It to siie upon the contract, yet if the other party ha.s receivetl n m\U-
Ntantial portion of tlte consideration. It is no longer competent for tilin tu net
up tlie Moii-perforniauce, in answer to tlie action. f'urUr v. Sninjill, L. It.
10 i^. H. .'itil (unlos, indeed, intlirectly \ty way of counterclulni under the
.ludicature Act. widch would be tantuinount to Klvln« if i" ■ v i>i. ii<-e in reiluc-
tlon of ilaniAKCs).]

Tlie ipiestlon whether the acts stipulated for In a i;l\iii ii.nirail are con-
current, <ir whetlier performance, or readiness to perform, upon either siile.
be a condition precedent to the riyht to enforce performance on the other, is
to be solved not liy any technical rules, iMit l>y ascertainint;, if possible, the
intention of the parties. 1 T. K. •;4.">. In ordi-r to tliscover that intention,
the followlnir rules are laid down by .Serjeant Williams. 1 Wnis. Sauud. .'i4h,
in notis.

1. "If a day be appointetl for payment of money, or part of It, or for
(loln<; any other act, and the day tj« to happen, or i(«iy happen before the
thinn which Is the consideration of the money <»r other act Is to Ik* per-
formed, an action may b«> brought for the money, or for not doini; sm-h other
act hfj'iirr performance: for it appi-ars that tlw party relied upon his rfintily,
and tlld not Intend to nuike the performance a condition precedent : and so It Is
where no time is tlxed for the perfonnance of that which is the considi-ra-
tion of tlie money or other act." See Mntti>rk v. Kinijliikf, 10 \. &. H. '>o, and
Wilks V. Smith, 10 M. & W . MM), where the aifreenient was to sell land for a
sum to be paid at the expiration of four years, ami Interest in the meantime
half-yearly. It was held that the declaration for an instalment of the interest
need not contain an averment of readiness to convey. Sec also Alrj-ntulrr v.
Gardnrr. 1 Bin-,'. X. C. (;71 ; I fall v. Ihiinhridijf, .-. g. B. 'iM\ Lord Ilotrdpii v.
Simi>si>ii. 10 A. & E. 79:5; I*istorv. Catir, \) M. & W. 31 j; Jiidnon v. limrdtn, 1
Exch. Wl; Jinrett v. Sjtfun'r, 1 Exch. <)47 ; iJirkrr v. Jn'k.inn, »i C. B. lo.l;
wliere the delivery of an al)stract of title by the vendor to the vende*- accord-
ins; to the terms of the conditions of sale was held not to be a condition i»re-
cedeiit to the riijht of the vendor to sue for the purchase-money.

[But althouifh " the day for the payment of money," &c., " may," according;
to the letter of the contract. '• liappen before the thini; which is the consider-
ation of the money or otlier :ict is to be perfonued." still, if it can be sathercd
from the wliolc instrument tliat the intention of the parties was that the per-
formance of a particular act sliould l)e a conilition i)recedent to the rifiht to
be paid llie money, performance must be averred and proved. See linherts v.
Brett, liS C. B. 5G1; 6 C. B. X. S. (ill; II II. L. :{;57, where the plaintilf con-
tracted to procure a ship and to do certain things furthtrith, the defendant
coiitractiu'i to pay 1000/. witlnu seven days after the arrival of the shiji at M.
wharf. There was a stipulation tliat bonds for securinj; the performance of
the contract should be iriven by each party within ten days from the execu-
tion of the indenture, and it was held that the giving the bond was a c(mdi-
tion precedent to tlie pl.aintitl's right to be paid the 1000/., for although the
seven days from tlie ship's arrival at M. wharf might expire before the ten
days witliiu whicli the bond was to be executed, it was clearly the intention

CUTTER V. POWELL. 1223

of the partief? that the execution of the bonds shonld be a securit.v to each
side for the due performance of the contract, and as such was a condition
precedent to the right of either party to sue upon it. " Fortliwith" was con-
strued to mean within a reasonable time, liaving regard to all that was to be
done bj' ])oth parties.]

2. " When a day is appointed for the payment of money, &c., and the day is
to happen after the thing which is the consideration of the money, &c., is to
be performed, no action can be maintained for the money, &c., before per-
formance." See Glaholm v. Hays, 2 M. & G. 257 ; 2fatthews v. Taylor, 2 M. &
G. G67; LucMS v. Godwin, 3 Bing. N. C. 737; Porcher v. Gardner, 8 C. B.
4G1 ; Staunton v. Wood, 16 Q. B. 638 ; Grafton v. Eastern Counties Rail. Co., 8
Exch. 699. In Neale v. Batcliff'e, 15 Q. B. 916, the defendants, who were ten-
ants to the plaintifi' of a house and other premises, agreed to keep in repair
'■'■the said messuage, buildings, and premises, the same being first put into good
tenantable repair and condition " by the plaintiff. The action was brought for
the non-repair, and the declaration alleged that the plaintiff had before breach
put the premises in repair. At the trial the jury found that the plaintiff" had
only put part of the premises in repair, but that part had not been left in repair
by the defendants. The court held that the repairing by the plaintiff was a
condition precedent to the ol)ligation to repair on the part of the defendants,
[(see Coward v. Gregory, L. R. 2 C. P. 153)], and that on this contract the
condition could not be divided, so that the plaintiff, not having repaired the
whole, could not I'ecover in respect of the non-repair of any part; as to the
latter point, see Kingdon v. Cox, 5 C. B. 522 [and Roll v. Cozens, 18 C. B. N. S.
673]. See as to conditions precedent in [leases and in] farming and min-
ing contracts, Cannock v. Jones, 3 Exch. 233 (affirmed in Cam. Scacc. 5 Exch.
713, and in Dom. Proc. 3 H. L. C. 700) ; Friar v. Grey, 15 Q. B. 891-901 ; 5
Exch. 584-597 [4 H. L. C. 5G5 ; and Clarke v. Westrope, 18 C. B. 765; Dean
and Chapter of Bristol v. Jones, 1 E. & E. 484; Tidey v. Mollett, 16 C. B. N. S.
298; Bastin v. Bidwell, 18 Ch. D. 238; Williams v. Brisco, 22 Ch. D. 441 ; and
Edge v. Boileau, 16 Q. B. D. 117 ; 55 L. J. Q. B. 90] ; in contracts for the sale
of real property. Dicker v. Jackson, 6C. B. 103 ; Manby v. Cremonini, 6 Exch.
808 [of personalty, Woolfe v. Home, 2 Q. B. D. 355; Bowes v. Shand, 2 App.
Cas. 455] ; in charter-parties, Ollive v. Booker, 1 Exch. 416; Oliver v. Fielden,

4 Exch. 135; Rae v. Hackett, 12 M. & W. 724; ^Thompson v. Gillespy, 5 E. &
B. 209; Hudson v. Bilton, 6 E. & B. 565; Tarrabochia v. Hickie, 1 H. & N.
183; Behn v. Burness, 1 B. & S. 877, S. C. in error 3 B. & S. 751; Pnst v.
Dowie, 5 B. & S. 20, 33; Andrew v. Chappie, 1 C. P. 643; Corkling v. Massey,
L. R. 8 C. P. 395; Jackson v. Union Marine Insurance Co., L. R. 10 C P. 125;
Tully \. Howling, 2 Q. B. D. 182; Inman Steamship Co. v. Bischoff, 7 App.
Cas. 670 ; 52 L. J. Q. B. 169 ; in bills of lading, Duthie v. Hilton, L. R. 4 C. P.
138; in building contracts, Morgan v. Birnie, 9 Bing. 672; Lamprell v. Biller-
icay Union, 3 Exch. 283; Roberts v. Bury Improvement Commissioners, L. R.

5 C. P. 310; Jones v. St. John's College, L. R. 6 Q. B. 115; in a guarantee
policy, London Guarantee Co. v. Fearnley, 5 App. Cas. 911.]

3. " When a covenant or promise goes only to part of the consideration,
and a breach thereof may be paid for in damages, it is an independent cove-
nant or promise. And an action may be maintained for the breach of it by
the defendant without averring performance, or readiness, in the declara-
tion." Such was the case of Stavers v. Curling, 3 Bing. N. C. 355, which is a
very strong example, for in that case the defendant's promises were ex-
pressed in the contract to be perforraable "on the performance" of the

1224 CUTTEK V. POWELL.

plalntitTn, and wore yot hold to have JM-on lnt«'n<h'<l to \h\ and to be. Inde-
pendent. See also Fniiikliu w.MiUrr, 4 \. ii. K. .'•;•!•; W'Ukit v. Smith, 10 M.
& W. ;«u5; tilnhnhn v. llnyn, 2 .M. Jt O. 2.J7 ; and Smtt v. Pttrkrr, 1 Q. B. WW.
\vh(*re it U'a.s decided that, in the ea.se of a loan .stipulated to he repaiil. with
an ii^ireeinenl tluit securities deposited should l)e returned ujnin repayment, the
return of tlie securities was neither a concurrent act nor a condition preee-
<lent. See furtiier, fiullniriii/ \. .InrkHon, .'J M. ^t (J. '.•<;(); t\ithtnituii>r»' f'o. v.
Ilnhertson, -> M. & (i. l.'U ; .\fftrkinlnsh v. Midhtiul linihr.ty r,,.. 14 M i W.
54«; [('hristii' v. IloMhj, 7 C. H. N. S. 5(1 1 ; Seeger v. Oitlhif, n ('. B. N. S.
4'.; AVirxon v. Smijthifit, 28 1.. .1. Ex. !>7 ; AViV/ v. M'hitieorth, L. U. 1 C. P.
f.«4; AW/»n v. h'fij, L. K. « Cli. r.lO; Simpunn v. Crippin, L. K. H y. B. 14, 43
L. J. Q. B. 28; linpn'v. Jnhn»nH, L. R. H C. P. Hw ; //»7riHi v. (hjf, 1 g. B. I).
1H,S, 4.'» L. J. g. B. 200, wliere a l>reaeh hv th«' plaintitl*. an opera singer, of a
stipulation to he in London for reliearsal> six davs hefore the comineiicenient
of Ids eii<;ai;enn-nt, was held no bar to his suin« the defendant on the latter's
H'fusal to euijaye him; Itut ••onipare I'lmsmtinl v. Spi'tn, 1 g. H. I). 41n. 4."i L.
.1. g. B. r.2l. where the plaintiirs inability to appear at the earlier of certain
stipulated performances was held to jjo to the root of the contract. ]

4. " When the mutual prond.ses or covonant.s jjo to the whole ronsideration
on both sides, they are mutual comlitions, and |)erfonnance must be averred."
See AtkiuHitn v. Smith. 14 M. & W. •'.•.(.■i.

5. " When two acts are to be done nt thf s<tmf timf, as when .\. <'ovenants
to convey an estate to B. on such a day and in consiileration thereof, B.
covenants to pay \. a sum of money on the Hume dnij, neillier can maintain an
action without averrini; a performance, or an otTer to perform, his own |>art,
tlioniili it is not certain which of them is oblijjed to do the llrst act; and this
particularly applies to cases ut sale." See Stfphens v. I)e Mediun, 4 (j. B. 422,
recofrniscd by the Court of Common IMeas In lioirlby v. lifll, 3 C. B. 2H4 [and
Mitrsdrn v. Moore, 4 H. & N. aiX); see also linnkftrt v. Howers, L. li. 1 C. I*.
484 ; Pnijnter v. ./ames, L. K. 2 C. P. 348]. To this it may be added, that there
is a Inrire class of cases in which, though no contiition l)e tr/irf.Hsiil, the lapse
of a reasonalile time is an impli<'d condition i»recedent to tin- rijjht of action,
and the performance of such condition ounht to l)e averred as well as where
it is expressed. Stamrt v. Kn.^tirooil, 11 M. & W. I'.t7; Sim.tnm v. Hhoilen,
G Biui:. N. C. 2f!l; Crnnfjer v. l)nrr>\ 12 y\. & \V. 4:!1. and per .Mauie, J.,
Startup v. MimloHaUl, 2 M. & G. :J95.

The authorities on which these rules depend will be found cited and
di-scussed in the notes by Serjeant Williams above referred to, 1 Wms. Saund.
548; and 2 Wms. Saund. 742, ed. 1871. It Is proper to add, that when it
[was] laid down that pfrformance of n concurrrnt art must he averred, the
meaninsj of that [was], that the plaintift' must [have averred] in his declara-
tion that he was ready aud irilli)i(/ to perform his part of the contract; see
JIannuic v. Goldner, 11 M. & W. 849, and Grauf/rr v. Uarre, 12 M. & W. 431,
where the plaintitt', havinj; declared on an ai,'reement to accejit (foods irithin a
rcasouahle time after notice, the declaration was held bad, for not avcrrim?
that he was himself during such 7-easonabIe time ready to deliver them. See
also ./ockso7i V. AUaway, 6 M. & G. 942; Boyd v. Lett, 1 C. B. 222; Giles v.
Giles, 9 Q. B. 164; Armitage v. Insole, 14 Q. B. 728; \_Duthie v. Uiltnn, L. R.
4 C. P. 138.] And the averment of the plaintift"s readiness and willinjrness
to perform his part of tlic contract will he proved by showins; that he called
on the defendant to accomplish his. WUkx v. Atkinson, 1 Marsh. 412; Levy
V. Lord Herbert, 7 Taunt. 314; 1 B. M. 5(5, by Dallas, L. C. J.; Pickford v.
Grand Junction Baihcay Co.. 8 M. & W. 372.

CUTTER Y. POWELL. 1225

It [was] not. however, necessary in any case to aver the performance
of conditions precedent when the declaration sliow[ed] that the defendant
ha[d] absolntely incapacitated himself from performing his part of the
contract, Lovelock v. Franklyn, 8 Q. B. 371 ; Bradley v. Beujaiain, 4G L. J. Q.
B. [590;] and see, as to averring the dispensation, or waiver of conditions
precedent, Ripley v. M'Chire, i Exch. 345; Doogood v. Bo.'ie, 9 C. B. 131;
[Cart V. Ambergate Rail. Co., 17 Q. B. 127; Hochster v. De La Tour, 2 E. & B.
678.]

By sect. 57 of the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76),
the averment of the performance of conditions precedent might be made
generally, and the opposite party was not allowed to deny such averment
generally, but was bound to specify in his pleading the condition or conditions
precedent, the performance of which he intended to contest. [See Bentley v.
Dawes, 9 Exch. 666, and Wood v. The Copper Miners' Co., 17 C. B. 561.

Under the system of pleading established by the Judicature Acts, no
averment of the performance of conditions precedent is necessary, but an
averment of their performance is to be implied in the pleading of the party
for whose case they are necessary : and the opposite party is to specify
directly in his pleading any condition precedent the performance of which is
intended to be contested. See O. 19, r. 14.]

The next branch of the question proposed at the beginning of this note is
— In what cases would an action of indebitatus assumpsit [or as it was usually
called, after the omission in the declaration of any averment of a promise,
an action upon the common counts'] have lain, while the special contract
remained open ? This is a question of great practical importance. And as
the distinctions it involves are more than usually line, and the authorities
numerous, an attempt will be made to classify them, and deduce from them
one or two general rules.

[The meaning of this question really is, " When may it be said that although
the plaintiff has not performed his part of the contract, there is nevertheless,
in contemplation of law, a debt due from the defendant to the plaintift', in
respect of what the plaintitf has done under the contract ? " When this debt
arose out of a new contract inferred from the conduct of the parties, as, for
instance, where the benefit of something done under, but not in accordance
with the contract had been accepted, it became properly recoverable under
what were called the common courts, and therefore, though the late com-
pendious system of pleading has been abolished, the question to be deter-
mined in each case is still the same, and must be tested by the same rules.

On the other hand, when the party suing has not departed from the terms
of the special contract at all, but has been ready and willing to do all that
it was the intention of the parties he should do, his action is properly said to
be brought upon the special contract itself. In ascertaining what was the
intention of the parties, which must be gathered from the instrument itself,
nice questions must necessarily arise as to what are or are not conditions
precedent to the right of either partj'^ to sue, but these questions do not
depend on mere subtleties of pleading, they are questions of fact which must
be answered at some stage in the investigation before a decision as to whether
a right of action exists can be arrived at.

It is submitted, therefore, that the pleading test which has been adopted as
the basis of the present note, resting as it does upon a logical analysis of the
cause of action in each case, is not only the simplest and most exact that can
be applied, but must still, under a looser system of pleading, be as practically

lliljti ClTTKi: V. roWKI.L.

useful as it has bf«>n luTftnforc. It Is none tlio loss itupnrtnnt to nncortaln
oxaclly what a plaintitrs ri;ilits an-. altln>iii;li tliost- rii;lits may no lonjctT ba
lost tlirou};h inexactiu-ss nf stalniuut i»ii tin- jiarl of tin- pW-adf r at tlio uutMct
of tlie cast;.]

Ill the (Irst place, then, there is a iiuuu-rous class of cases wlikch establish
the ;;eneral |)ri>positi(>ii, that uiiiie a special contract reiiuiined open, i.f.,
uiiperl'oniieii, tlie party whose part of It was unperforuied e4)uhl not sue In
indihUittnx intHtunimit to recover a compensation for wliat lie had done, until
the whole was completed. This principle is alllrmed and aeteil on in t'iitt»r
V. I'lnnll ; it was also the j^rouml of the decision in lliillf v. Ilti'ihtnuin,
2 East, 145; a decision of consi»leral)le celebrity, and which is said In the
jmlj;ment to have proceeded on the authority of MV.s/«<h v. liiorins. Doiiijl.
2;(; but H't'stnn v. iJntrneg belon;;s to a somewhat dltVercnt class of cases:
the action was there brouKht to recover back the price of a horse In couse-
<|Uenc«! of a breach of warranty; so that It was not an attempt to obtain
compensation for work don«', or jjo'xl'* «lelivere«l, tinder a special contract;
but to recover money i)aid on a consideration whi<h was alleged to have
failed, and this the plaintill'. havlnu ac<-eptcd the horse, was not allowed to
do. \\'i.slon V. Diiirnfn therefore belon;;s to the same class with Strrt-t v.
lilnij, 2 IJ. & A«l. 4.'»(!, which is now the leadin;; case on that subject, and
diU'ers from Ilulh- v. IIi iijhtinKn. where the action was not for money ha»l
and received to recover back cash paid on a considenition which had faileil,
but for work anil labour done under a special contract which hail l>e(>n <uily
in part i)erfonned. In that case the plaintitl', who was a seaman, sued for
waiit's. lie proved a service on board tin- defendant's «,hip, from .Mtona
to l,r>ndon. lie further proved that, on arrivini; at Ltuulon. the tlefendant
refused to jjive the seamen victuals, and t)ade them '^o on shore, saylni;
he could i^et plenty of tiieir co\intrymen to i;o back for their victuals only.
The phiiutitr accordingly did i^o on shore, — that afti-r some days tin- defend-
ant re(|uired him to return on board, which he refused to do, sayini; he had
tlie law of him. lie then commenced his action. The defendant put in the
articles of ajxreenient under which the plaintiff served, which showed that he
was hired from Altona to London and back a;;ain, and containctl a special
clause by which the plaintitf bound himself to demand no waijes till tlie
conclusion of the voyai;e. I'pon these facts, Le lUanc, J., nonsuited the
plaintitl", on thf ffrmiiKl thut thr spirinl mntrnrt rpmnimil open nud utinsriuilfd,
and that the plaintill' should have sued on it, and not in iiuhhitntns ansumpitit ;
and the Court of Kiiiii's Mencli afterwards ajiproveil of that ruling.

The principle on which Ilullf v. JIiii/htin<tn was decided has never since
been (luestioued. Assimiiu!^ the special contract to have remained open and
unresciiuled, the plaintiff was undoubtedly bound to sue on it, and not in
imh'hitntus asstayipsit. But whether the court was rio^ht in assuming? that the
special contract did, after what had taken place, remain open and unre-
sciiuled, is a very different ciuestion, and upon that question it is submitted
that the argument of Mr. Gibbs was correct, when lie contended that the
special contract has been put an end to. and that the plaintiff had a riirht to
treat it as having never existed, and to sue for his labour on a qHiuitnm
meruit. And it is further submitted that it is an invariably true i)ropositiou,
that, wherever oue of the parties to a special contract not under seal has, in
an unqualified manner, refused to perform his side of the contract, or has
disabled himself from perfonuing it bj' his own act, the other party has,
thereupon, a right to elect to rescind it, and may, on doing so, immediately

CUTTER V. POWELL. 1227

sne on a quantum meruit for anything -which he had clone under it previously
to the rescission : this it is apprehended is established by Withers v. Re7j-
nolds, 2 B. & Ad. 882; Planche v. Colburn, 8 Biug. 14; Franklin v. Miller, 4
A. & E. 599; [Frickett v. Badger, 1 C. B. N. S. 29G ; Inchbald v. The Western
Neilrjherry Coffee Co., 17 C. B. N. S. 733], and other cases which will be pres-
ently cited and commented upon. Now in Hulle v. Heicjhtman, the defendant
had refused to perform his part of the contract, and the plaintift' had, by
bringing his action on a quantum meruit, elected to rescind. It is submitted,
therefore, that the case of Hulle v. Heifjhtman, so far as it assumes that the
special contract remained open, would not now be supported, unless, indeed,
it can be so upon the following consideration; viz. it may be urged, that the
question whether the acts of the defendant, Heightman, amounted to an
absolute unqualified refusal to perform his part of the contract, was a ques-
tion which ought to have been left to the jurj', and that as the plaintifl's
counsel did not reqiiire that it should be submitted to them, he must be taken
to have acquiesced in the opinion of Mr. J. Le Blanc, that the circumstances
did not amount to a rescission.

On the same principle with Hulle v. Heightman proceeded Ellis v. Hamlin,
3 Taunt. 52; R. v. ]Vhittlehur>j, 6 T. K. 464; Spain v. Arnot, 2 Stark. 256;
Turner v. Robinson, 6 C. & P. 15; Ridgioay v. Hungerford Market Co., 3 A. «&
E. 171 (which latter were cases of servants discharged for cause, before the
expiration of their year); Jesse v. Roy, 1 C. M. & R. 316; and Sinclair v.
Bowles, 9 B. & C. 92, which is, perhaps, more often cited than any other case
upon this subject. It was an action of assumpsit for work and labour and
materials, and for goods sold. At the trial it appeared that the plaintifl' had
repaired three chandeliers for the defendant, and that bl. was a reasonable
price for the work and materials ; but it was also proved by the defendant
that the plaintifl', when he accepted the job, expressly agreed to make them
comjih'te for the 10?., which he had failed in doing. The learned judge,
Parke, J., nonsuited the plaintifl', giving him leave to move to enter a verdict
for 51. ; but the court refused the rule, on the ground that the contract was
entire, and that the plaintifl" not having completed his part, had no right to
recover anything.

The eflect of this case was discussed in the later one of Roberts v. Hare-
lock, 3 B. & Ad. 404. That was an action for work and materials; tlie plain-
tifl", a shipwright, had engaged to put a ship of the defendant into thorough
repair. Before this had been completed, the plaintifl" demanded payment for
what he had alread}' done, and refused to finish the job without. The defend-
ant refused payment, and thereupon this action was brought; and a verdict
having been found for the plaintifl", the defendant moved to set it aside, on
the ground that the special contract was still open. The court refused a
motion made, in pursuance of leave, to enter a nonsuit. " I have no doubt,"
said Lord Tenterclen, " that the plaintifl' was entitled to recover. In Sinclair
V. Bowles, the contract was to do a speciflc work for a specific suin. There is
nothing in this case amounting to a contract to do the whole repairs and
make no demand till they are completed."

From these Avords it may l)e thought that his lordship's judgment pro-
ceeded on the ground that the performance of the whole toork is not to be
considered a condition precedent to the payment of any part of the price,
excepting when the sum to be paid and the work to be done are both speci-
fied, (unless, of course, in case of special terms in the agreement expressly
imposing such condition) ; and certainly good reasons may be alleged iu

\-2-J.H ri'TTKi: \. I'oWKLl..

favour of snth R (loctrim-, f<>r \\li<n the prlcr to do pal<l Ih a sporltlwl Knm,
as iit Sinrlnir v. Jim'-li's, it is cliar tiiat tin- court and jury fan havt- no ri«la
t<j apportion tliat wiiitii tlic partirs liionisrlvt's have tn-at*'*! a.s iMitln*, ami to
Hay lliat it sluill Im- paitl In inHtalnu-nts, ctmtrary to tin- aiin-fnu-nt, Instt-a*! of
In a rr)unU sum as provldt-il by ttie ayrocnu-nt ; but, wlu-n- no prlrr Is sptTJ-
tied, this dillicidty docs not arise, anil perhaps the true and riyht presumption
is, that the parties Intemled the payment to keep pace with the aeenial c»f the
benellt for \vld«'h payment Is to be made.

Hut this, of course, can only lie where the consideration is itself of an
apportionable nature, for It Is easy to put a case in which, though no price
has l»c<'n specUled. yet the c<»nslderation is of so indivisil>lc a nature, that It
would be absurd to say tiwit «>ne part sh«»ultl be paid for lieforc the rcnudnder;
as wliere a painter agrees to draw A.'s likeness, it would be absurd to rei|uirc
A. to pay a rat«'able sum on account when half the face only had In-en lln-
Ished : it Is obvious that he has then received no benellt, and never will
receive any unless the likeness should be |H>rfe<-l»'tl. There are, liowever,
eases (that, for instance of /inlnrl.i v. Ifunlnrk) In which tlie consideration
is In its nature apportionable, and there. If no entire sum have been a«ree«l
on as the price of the entire benellt. It would not be unjust to presume that
the intention of the contractors was that the remuneration should keep pai-e
with the conslderatl'iii, and be recoverable totii-a nuntifii by action on a -/(/.(/i-
Itiin iniruit.

This position (besides what Is said by l,onl Tenterden) is perhaps sume-
what countenanced by Witturs v. /lii/nnlih. '2 It. & .Vd. HA'2. That was aii-
sumpsil for not dellverlnu straw according to the following ay^rcemcnt :
".John Reynolds undertakes to supply .loseph Withers with wheat straw
delivered at his prendses till the 24th June, IKti), at the sum of XU. per load
of (liirty-six tnisses, to be delivered at the rat«' of three liiads in a forlni^ht ;
and the said J. W. a;;rees to |)ay J. U. 'Ms. per load for each loa«l so delivered
from this day to the 'Jlfh .luiie. ls:?(). according to the terms of this a;;ree-
mcnt." It appeared that the plaiiitilV had refused to pay for the straw iipnii
tlelirenj, and it was contended that he was not bound to do .so. ami that as no
time was named for the payment, he ml;;ht <lefer It till the expiration of the
contract, or that, at all events, the promises to deliver the straw and to pay
for it were independent, and should be enforced by cross actions. Ilut the
court hold that he had a riiiht to be paid totiix qunth's on the delivery of each
load, and that tlie plaintitr's refusal to do so irave him a ri^'ht to rescind the
contract, and that the plaintiff was therefore properly nonsuiteil. Such are
the arfiuments in favour of the doctrine at which Lord Tenterden seems to
have hinted in Rohertx v. llivplork. At the same time, it must not be con-
cealed that the expressions of I'arke, J., in that very case, lean the other way.
" If," says his lordship, " there had been any spccitlc contract by the plain-
tiff/or completing tiie work, the argriiment of the defendant might have had
much weight. • But this was only a general employment of the plaintiff by the
defendant, in the same way as all shipwrights are employed." Yet surely if
the plaintiff had refused to romplctc on payment as he wont along, an action
would have lain against him. In Withers v. I\ei/)whh, Taunton. .1., expressly
founds the decision upon the special wording of the contract. '■ for tiirh
load," &c.. which he says imports that each load shall be paid for on deliv-
ery; and, indeed, if that case were decided on any other ground, it would be
contrary to the opinion expressed by Parke, J., in OxeinVtle v. Wetherall,
9 B. & C. 386; [and see Button v. Thompson, L. R. 4 C. P. 330.]

CUTTER V. POWELL. 1:^29

To return from this dig:ression. In Read v. Rann, 10 B. & C. 438, recog-
nised in Broad v. Thomas, 7 Bing. 99, the doctrine of Cutter v. Powell, Hiille
V. Heightman, and Sinclair v. Bowles, was again acted upon. In tliat case a
ship-broker brought an action for commission for procuring a charterer for
tlie defendant's ship. It was proved to be a custom in tlie Cit}- tlaat, in sucli
cases, if tlie ])argain was perfected, the commission was live per cent., I^ut if
tlie bargain went ofl", notliing was paya])le ; and liere it liad gone ofl'. The
plaintifl'was nonsuited. '• The claim of the plaintiff," said Parke, J., '• rests
on tlie custom, and not on a quantum meruit. The custom presupposes a
special contract, and, if tliat is not satisfied, no claim at all arises, for no
other contract can be implied. In some cases, a special contract not executed
may give rise to a claim in the natui-e of a qnantum meruit, ex. gr. where a
special contract has been made for goods sent not according to the contract
have been retained by the party, there a claim for the value on a quantum
valebant may be supported. But then from the circumstances a new contract
may be implied."

[But no claim in the nature of a quantum meruit can be founded upon a
special contract which has not been performed unless the person who has
a right to insist on tlie pei'formance of the special contract has accepted
some benefit resulting from its partial performance, or the circumstances are
such as to show, in some other way, that a new contract has arisen between
the parties. For instance, if A. agree with B. to pay him a sum of monej^
if he will sell for him an advowson, and the original bargain be that the
monej' is to be paid on the sale, and there is nothing in the contract from
which it can be implied that B. is to be paid for abortive attempts to sell, and
nothing has occuiTed to show that a new contract has arisen, B. cannot, if
the sale does not take place, claim remuneration under a quantum meruit for
the work actually done in the atteinpt to sell ; although if the sale have been
prevented by a revocation of B.'s authority, and that revocation be wrongful,
an action will lie against A. for his wrongful act. See Simpson v. Lamh, 17
C. B. 603. And if the bargain goes off thi'ough the default of the principal,
the agent who has performed his part of the contract is entitled to his whole
commission. Green v. Lucas, 33 L. T. 584. As to when an agent's authority
may be revoked, and the consequences which result from the revocation,
Smart v. Sandars, 3 C. B. 380, 5 C. B. 895; Taplin v. Florence, 10 C. B. 744;
and the judgments in Campanari v. Woodburn, 15 C. B. 400.

Nor, as is obvious, will any action lie on a quantum meruit where services
have been rendered in anticipation of a special contract, which is, after all,
not entered into, there being no intention that such services shall be paid for.
Harrison \. James, 7 H. & N. 894, was a case of this class: a verbal agree-
ment had been made that the defendant's son should go on trial to the plain-
tifi''s house, and if the parties were satisfied sliould be afterwards apprenticed
to the plaintiff. The son remained some time with the plaintiff on trial, and
was boarded and lodged l)y him, but the intended apprenticeship went ofl',
and the sou left the plaintiff's house. Upon these facts it was held that the
plaintiff could not recover for the board and lodging during the period when
the son had been in his house; for it was clear, under the circumstances, that
the pai'ties never meant that the board, &c., was to be paid for.]

The general rule being thus established, viz. that while the special contract
remained unperformed, no action of indebitattis assumpsit could be brought
for anything done under it, we now come to the exceptions from that rule ;
and the first of them is that advei'ted to by Mr. J. Parke, in the passage just

fitfd. It oonslHts of casp** in wliirh soiiutliln:; has hoi'n «l<»np umler n -jp^'rlal
contract, but not in strict accordance wltii tlic tcnnn of tliat contnut. In
sucli a case tlic party cannot recover tlie renuineration stipulateil for In the
contract, liecanse lie has not done that which was to he the considerution for
It. Still, if tlic otiier party have derived any benelit from his inl>onr. It woiiUI
be nnjnst to allow hini to retain that wlthont payint; anythlni;. Tlie law,
tlierefore, implies a prondse on his part to pay snch a renuineration a.H the
hencllt conferred upon him is reasonably worth, and to recover that qunntHin
of remuneration, an action of imlt-hitntus iiK.sitinimit wa.s maintalmible. This
is conceiveil to l)e a just expression of the rule of law, [whii-h still] prevails.
The cases on the subject are, however, extrenu'iy numerous, und In many
instances at variance with each other; and, as tin- subject is one of irreat
jjeiieral Importance, it will perhaps l)e best^autl fairest t<i the reailer to enter
somewhat ni()re at larye upon It, even at the rislv of prolixity.

The rule which was in early times ol)served upon this subject, was diamet-
rically opposite to that which now obtains. It was held that, whenevt-r any-
thlnir was done under a special contract, but not in confonidty thereto, the
party for whom It is done nnist pay the stipulated price, and resort to a
cross action to indemnify himself for the deficiency In the consldenition.
Thus It was heltl. in Ihoirnf v. Duviit, 17'.»4, cited 7 Ka.Mt, 47l», «»i imii), thot
the plaint 111', who had ai^reeil to btdld a race-booth for twenty ^tdneus. wan
entitled to recover the whole price, althoui;h the booth was so badly con-
structed that It fell (h>wn durlni; the races, and it wa.s adndtted that a
cross action would lie a;;ainst the plaintiff. In T'lni'lnr v. M'Lnrhlun, Feb.
(J, IiHim;, '2 N. It. l.ti"', an ai'tlon was bronnht on an attorney's bill, and the
defence was ;;ross nei;ll;;ence in the plalntlll*. who had allowi-d impropi-r bail
to justify. 'Ihe evidence of nei;liyeiice was held Inadndssible, and the plain-
till" recovered the whole amount of his bill; the court saylni; that the only
case in which su<li evidence WDuld be admissible was where the nei;lli;enc«'
was so !;reat that the plalntltl' had derived «<» hi'mjit nt nil, and that there
they would perhaps admit It, to prevent circuity. In Milh v. lliiiuhrithjr,
cited 2 N. K. I'Mh injury from im|iroper stowage was held to be no defence
in an action for freij^ht.

However, in Trinity Term, \>'> (i. :'• .lune l:!, isoC), the rule which now
obtains was established by the decision of the K. H. in lluMtn v. fSnttir. 7
East, 471). That was an action of ansnmpsit for woric and labour, and mate-
rials, brouirht by a carpenter, whom the defendant, a farmer, had employed
to roof a linliay and a barn. The defendant, at AV.-*/ J'rins, offered to prove
that the worlv had been done in a grossly improper ntanner. This evidence
was rejected on the autliority of Broirne v. Dun's, and a venlict found for the
plaintitV, which the court set aside on the ground that the defence ought to
have been adnuttcd.

This decision was followed by FKi-nsirnrtU v. Gnrranl. 1 Camp. .iS. wliicli
was also an action of ansiinipsit for work and labour, and materials, brouirlit
by tlie plaintitt", who had rebuilt the front of a lionse for the defendant. The
defence was that the house was so out of tlie perpenilicular that it was in
daiiixer of falling. Parke, for the plaintifl", ol)jected, tliat this was only
ground for a cross action; and he relied on Templar v. M'Larhlan. Lord
Elknborongh admitted the evidence. '* Tills action," said his lordship, " Is
founded on a claim for meritorious service : the plaintifl' is to recover ichat
he deserves. It is, tlierefore, to be considered how much he deserves, or if
he deserves anything. If the defendant has derived no benefit from his ser-
vices, he deserves nothing, and there must l)e a verdict against him. There

CUTTER V. POWELL. 1231

was forraerl}' considerable doubt \ipon this point. The late i\Ir. J. BuUer
thought — and I, in deference to so great an authority, have, at times, ruled
tlie same way — that, in cases of this Ivind, a cross action for the negligence
was necessary; but that, if the work be done, the plaintifl' must recover for
It. I have since had a conference icith the judges on the subject, and I now con-
sider this as a correct rule : that if there has been no beneficial service, there
shall be no pay ; but if some benefit has been derived, thoiigJi not to the extent
expected, this shall go to the amount of the plaintifTs demand. The claim shall
be co-extensive with the benefit."

This case was followed by Denew v. Daverell, 3 Camp. 451, Avhere the same
rule was applied in an action by an auctioneer against his employer. See too
Brncctj v. Carter, 12 A. & E. 373; Nicholls v.. Wilson, 11 M. & W. 107; Hill v.
Featherstonhaugh, 7 Bing. 569; Shaw v. Arden, 9 Bing. 287; Gill v. Loxigher,
1 Tyrwh. 121 ; Huntley v. Bulwer, 6 Bing. N. C. Ill : [Cox v. Leech, 1 C. B. N.
S. G17; and Long v. Orsi, 18 C. B. 610, where this rule was applied in actions
brought hv attorneys to recover against their clients the costs of abortive
proceedings at law.] And Poulton v. Lattimore, 9 B. & C. 259, and Street v,
Blay, 2 B. & Ad. 456, established, beyond all doubt, that, even where there
was an express warranty, and a breach of that warranty was the defect of
consideration complained of, the defendant might, in an action for goods
sold and delivered, give evidence of the breach of warranty in reduction of
damages. ( Vide Dicken v. Neale, 1 M. & W. 556.) And this might have
been done under the general issue, Hill v. Allen, 2 M. & W. 283. [As to the
further extension of this principle by the Judicature Act 1873, see infra.'\

In Francis v. Baker, 10 A. & E. 642, it was attempted to stretch this prin-
ciple so far as to include a case in which a broker, who had purchased rail-
way shares for the defendant, sued for money paid, and the latter set up as
his defence conversion of the shares by the broker : the court, however, held
that that was matter for a cross action. It will be observed that the distinc-
tion between that case and the others, is that the defence there was not the
inferiorit}^ of the article procured by the broker, or the badness of his work,
but a subsequent independent tort. However, in Mondel v. Steele, 8 M. & W.
871, the court said that there were exceptions to the practice of allowing the
defence of the inferiority of the thing done to that contracted for, to be
applied in reduction of damages : and they intimated, that in actions for an
attorney's bill, or for freight, the defence would not be allowed, unless it
went to the extent of denying that any benefit at all had been derived. See,
however, the distinction taken in Hill v. Featherstonhaugh, between a useless
item severable from the rest of the account, and one inseparable.

[In a modern case {Dakin v. Oxley, 15 C. B. N. S. 646) an attempt was
made to push very far, and to apply to a totally distinct class of cases, the
rule laid down by Lord EUenborough in Farnsivorth v. Garrard, that " lohere
there has been no beneficial service there shall be no pay." In Dakin v. Oxley,
a shipowner sued a charterer for the freight of coals, and the latter pleaded
that owing to the negligence and unskilfulness of the master and mariners in
the navigation and management of the ship, the coals were so damaged on
the voyage that on their arrival at the port of discharge they were of less
value than the freight, and were abandoned to the shipowner. This plea
admitted, as will be observed, that the goods arrived as coals, and were of
some value. The Court of Common Pleas refused, in a judgment which
exhausted the subject, to uphold this defence, and laid down distinctly that
by the law of England '• where goods have arrived, though damaged, the

'[•2-\'2 ciTTKic V. i'<»\vi:i,i..

frri^ht in payable by tin- onlinary tcniis of tin- cliartrr-party : aiui the i|Ufb-
tioii of rortuitoiis (iaiiia^i- iiiii>t br scltU-d with the iiixUTwrltcrs, and that of
ciilpabU- (Uiina<;t', in a distinct jirocefdin^ fur .siuli ilaiiiai;i- against ttu- ship,
captain, or owners;" set- also linhinsDH v. Kjiii/ftts, L. U. s C. l». 4»;,', ; Mrr-
chdiit ShippiiKj Co. V. Aniiit(tiif, L. I{. 'J t^. H. \\'.\. In a sindlar case, there
mit;ht now be a counterclaim uniler the Judicature Acts for the damage; see
iiifrd, p. 'M.

Independently of the Judicature Act,] It Is settletl by Stn-ft v. Hhnj, anil
I'lniltnii V. l.nttimiirf, that, where an article Is warranted, and the warranty
is not complied with, tlu' vendee has three courses, any on*- <if which he may
purs\ie. 1. He uuiy refuse to receive the artich' at all: the power to |)iirsue
tills ilrst course, however, not extending to cases where tlu-re has Iteeii a
warranty upon the sale i}{ aspi-n'rir rhitltfl, and where, the property passing by
the contract, it is not competent to the vendee to rescind it without the con-
sent of the vt-ndor, or a stipulation to that ell'eet. See the observations of
the jud;;es in the case of Dnirsnn v. Collin, 10 C. B. 523; also Pardons v. Sfx-
tim, 4 ('. H. ^(l^'J. '2. He may receive It, and brln:; a cross action for the breach
of the warranty; or. 3. He nuiy, witliout l)rin^inir a cross action, use the
breacli of warranty In reduction of the dama:;es, in an a<-tiou broui;ht by the
vt'Udor for the price; i.r., to the extent of the dlWereiice between the ai^reetl
pri«"«' or allciied value, and the real value at the tiun- of delivery as reduced
by the breach of contract; but if there be any further damage, Ix'sides that
so allowed in al)atenu-nt of t lie price, he must l>rini; a cross action. MmiiUl
v. Stci-lf, 8 M. v<^ W. H.'js : and see /iiij>j>- v. Utirhiilt/^, l.'> .M. & W. .V.IM.

It was once thought, and indeed laid down by Lord Khh>n In Curtis v. Jinn-
nnij, 3 Esp. 82, that the vendee mii;ht, on dlscovt-rlujir the breach of warranty,
rescind the contract, return the chattel, and, if he had paid th«' i)rice, recover
it l)ack. This doctrine, which was oppo.sed to Wrttton v. Dowiifs, nntr, p. 20,
is, liowever, overruled by Stnit v. lilinj, and (ii»n}>prtz v. Ihitton, 1 C. & M.
207; ."i Tyrwh. 232 ; and it is dear that, thou<;h the noncomjiliance with flie
warranty may [where the property has not passed] justify him in refusin;;
to receive the chattel, it will not justify him in returninix it. and suin*: to
recover back the price [Foster v. Smith, IH C. B. loCj ; unless, indeed he
return it, havinir kept it (as he lias a rlyht to do, see lAirrymer v. Smith, 1
B. & C. 1) such a time only as was necessary for a fair examination. In which
case lie cannot be considered as having received It at all. See Okill v. Smith,
1 Stark. 107; Jordan v. Sorlun, 4 M. & W. l.").'i; Street v. Bluy, Youiifj v. Cole,
3 Biui;. N. C. 730; where a distinction was drawn between the effect of a
breach of warranty, and of a total failure of consideration. [See also
Gomprrtz v. liartlett, 2 E. & B. 84'.), and (iiirueij v. U'omrrslnj, 4 E. &. B. 1.33.]
And probaljly the distinction between a condition and a wnrranty, as pointed
out by Mr. Justice Vauuhan Williams in Dmcson v. Colli.t, 10 C B. 530, will
be found to obviate any difliculty that may be supposed to exist, in deciding
what are the cases in which a vendee can refuse to accept, or can return the
article, and either resist payment of the price, or recover it back if paid.

A warranty properly so called, can only exist where the subject-matter of
the sale is ascertained and existing, so as to i)e capable of being inspecteil at
the time of the contract, and is a collateral engagement that the specific
thing so sold possesses certain qualities : but the property passing by the
contract of sale, [Dixon v. Yates, 5 B. & Ad. 313; Gilmour v. Supple, 11
Moo. P. C. C. 551,] a breach of the warranty cannot entitle the vendee to
rescind the contract, and revest the property in the vendor, without his con-

CUTTER V. POWELL. 1233

sent; the vendee mnst therefore resort to an action for such breach, or give
it in evidence in reduction of tlie price, or as an answer to the action if the
breacli renders tlie article wliolly wortliless.

But wliere the subject-matter of tlie sale is not in existence, or not ascer-
tained at the time of the contract, an engagement that it shall, when existing
or ascertained, possess certain qualities, is not a [mere] warranty but a con-
dition, the performance of which is precedent to any obligation upon the
vendee under the contract, because the existence of those qualities being
part of the description of the thing sold, becomes essential to its identity,
and the vendee cannot be obliged to receive and pay for a thing different
from that for which he contracted. See [Mchol v. Godts, 10 Exch. 191 ; Jos-
ling V. Kingsford, 13 C. B. N. S. 447; He>jxDorth v. Hutchinson, L. II. 2 Q. B.
447] the observations of Mr. Justice Yaughan Williams in Dun-son v. Collis,
10 C. B. 530, [and of Lord Blackburn in Boioes v. Shand, 2 App. Cas. 455,]
tlie judgment of Lord Abinger in Chanter v. Hopkins, 4 M. & W. 399; [the
judgment in Barr v. Gibson, 3 M. & W. 390, Gompertz v. Barllett, 2 E. & B.
849, Lucy v. Mouflet, 5 H. & N. 229, and the judgment of the Exchequer
Chamber in Behn v. Burness, 3 B. & S. 756, and of Blackburn, J., in Kennedy
V. Panama, &c., Mail Co., L. R. 2 Q. B. 587.

But although the general rule is as above stated, it is open to the parties,
if so minded, to contract when selling specific goods, that a particular stipu-
lation, such, for instance, as one relating to the nature or condition of the
goods, shall be conditional to the validity of the sale ; and if this is the con-
tract really intended, the buyer maj' repudiate the contract and return the
goods, even after their delivery, on its appearing that the affirmation in ques-
tion is not correct. In this class of cases the sale is not al)solute, with a
warranty or condition superadded, but conditional, and to be null if the affir-
mation is incorrect. Bannerman v. White, 10 C. B. N. S. 844, was a case of
this class. There, on a sale of hops by sample, a preliminary affirmation was
made by the seller that no sulphur had been used in the treatment of them.
This undertaking, without which the buyers would not, as the seller knew,
have gone on with the treaty which resulted in the sale, was honestly given,
but in fact incorrect. The court held on the facts that the contract was not
a mere sale with a warranty superadded, and that the buyers might repudiate
the contract even after the delivery of tlie hops. See also the judgment
already referred to of the Exchequer Chamber in Behn v. Burness, 3 B. «& S.
755, 756 ; and as to what stipulations are to be deemed conditions on the sale
of specific goods; Gattorno v. Adams. 12 C. B. N. S. 500; and see the notes
to Chandelor V. Lopus, ante, vol. 1.]

But although Street v. Blay, and Poulton v. Lattimore clearly established
that where there was a breach of warranty, that might be given in evidence
in reduction, in an action of indebitatus assumpsit for the price, or a cross
action might be lirought upon the warranty, yet it is the opinion of a writer
of great merit and learning (Mr. Starkie) that " Avhere there is a specific bar-
gain as to price, but no warranty, and goods inferior in value to those con-
tracted for have been delivered, the vendee must, ichere it is practicable to do
so loithoui ptrejudice, return the goods, and thus rescind the contract in toto ;
and if he does not, must be taken to have acquiesced in the performance of
the contract." Stark. Ev. vol. 2, p. 879, 2nd edit. [The learning upon this
branch of law has however been rendered obsolete by the provisions of the
Judicature Act, 1873, infra, and the discussion of Mr. Starke's opinion, which
followed in former editions, has been therefore omitted.]

1J:;J CL'TTKU \. I'OW i:i,i>.

It litis l)ci-ii said in siiinc cii-si-s. tlitit ilif (lilriiilaiii. 'i In- iinuii !<• roniiiul
tliut till- Ikmu'III rrc-t'iv»'tl was not lliat wiiirli In- stipiilatfd fi>r, must jflvt- tlu*
plaiiititr notic-i' of iiis iiilciition. llowover, thr olisrrvatloii nuuli- oii thin
siilijiil liy Lord Klli'ul>orou;;li, in linMtn v. Ilnttn-, st-i'ins i-oncluslvf. viz.,
tliat if tlir |)laintilf suf upon a ijiiuutnin tnt-ruit, tiio vi-ry f(»rni of Ids own dt-c-
laratioii j^ivi-s Idin notic-o tliat tlu- udiMpiacy of tlu- considrration may be- dis-
puted.

VVitli respect io quant nm cf ritluitiini, it l.s haiil by I'arke, .1., in 'J'/titriit"n \.
Plari', 1 M. & Uol). 211», timt •' Where a party eujuaifes to «li) certain siH-ellletl
worlv on certnin specilled terms, and in a certain speeitied manner, but in fart
(iocs not perform tlie work so as to ••orrespoml with tlie speeiliration, In- is
not, of course, entitled to recover tlie price ajjreeii on in tlie speciticat ion.
Nor can he recover according to the actual value of the work, as if there had
l)een no special contract. What the )dalntitl' is entitled to recover is tlic
price a;;reed on in the speciticalitm, subject to a tleduction ; ami the measure
of that deduction is the sum it wouhl take to alter the work so a.s to make it
correspond with the speclllcatlon." .Vs there, ))erha|is, micht he ca.ses to
which tills rule couhl not be with perfect ju.stlce applied, it probal)ly was
only iaiti down by the learned jud^e with reference to such as that immedi-
ately before him.

In Chitppil V. IlirkK, '2 <". i M. L'U, Hayley, !»., says, •The rule is, tliat if
the contract be not faithfully p<-rfornie«l, tin- plaintill' shall be entitled only
to recover the value of the Work and materials supplietl." Lord KllenlM>r-
oufjh's rule, laid down after coiisultin;; tlie jiitlj;es In Fitnmirnrlh v. (iunnnl,
wa.s, " The claim shall be co-cxtcnslve with the benefit."

In the American courts, the rule on this subject seems t«) be tlie same a.s
that reco<;nised in the courts here [before the Judicature .Vet], namely, that
where a |)lainlitr declares upon a general count for work done, jjoods .soUl, or
the like, under a special contract, the defendant may jitve in evidence ever}'-
thini; that alVects directly the value of the .-ubject of the claim, as between
the parties, includini; a breach of warranty, in reiluctlon of dama-ies. [lie
was not, however, by our law bound to do so, an<l if in an action a;;ainst him
on the special contract he luul j>aid into court the sum claimed, he was not
tlioreby estoppeil from brinuini; his cross-a<tioii fur defective perfornianee.
Davis V. Jliihjrs, L. K. t', c^. IJ. f.h7.

In the state of New York the nile Is extended further, under the name of
recoiipmiiit (^as it is there called), or diminution of damaj^res. in virtue of
which a defendant in any action upon a sitirittl coiUrdct, even uiuler seal, can,
by j^ivinjj notice, set up by way of recouiunent any breach of the said con-
tract by the plaintitl', so as to reduce the ilainai^es tlu-reby. The defence,
however, cannot be pleaded in bar of the action. See the notes to the 4th
American edition of '• Smith's Leadini; C'a.ses," p. 45. by Messrs. Hare & Wal-
lace; and for cases of diminution of damajyes by way of ncouper in our
courts, see Iceley v. Grcir, (5 N. & M. 4G9, (a).

And now by Order XIX. r. 3 of the Rules of the Supreme Court, it is pro-
vided that " a defendant in an action may set oft", or set up, by way of
counter-claim against the claims of the plaintirt', any right or claim, whether
such set-oft' or counter-claim sound in damages or not, and such set-oft" or
counter-claim shall have the same ett'ect as a statement of claim in a cross-
action, so as to enable t1ie court to pronounce a final judgment in the same
action, both on the original and on the cross-claim."

And bv Order XXI. r. 17, " where in any action a set-oft" or counter-claim

CUTTER V. POWELL. 1235

is established as a defence against tlie plaintiffs claim, the court may, if the
balance is in favor of the defendant, give judgment for the defendant for
such balance, or may otherwise adjudge to the defendant such relief as he
may be entitled to upon the merits of the case."

Before leaving the first exception to the general rule, that Avhile the special
contract remained open an action of indebitatus assumpsit would not lie, it
may be well to notice a large class of decisions forming only an apparent ex-
ception; that is to say, cases in which the special contract being unper-
formed, a new contract has been implied from the conduct of the parties to
pay a remunei'ation commensurate with the benefit derived from the partial
performance. Thus, if a shipowner contract to carry goods from A. to B.
at a certain freight, and does not perform this contract, but the goods' owner
voluntarily accepts the goods at a point short of the original destination, in
such a manner as to raise an inference that the further carriage is dispensed
with, a new contract will be implied to pay a compensation in the nature of
freight, for that portion of the voyage which has actually been performed.
Mulloy V. Backer, 5 East, 316; the judgment in Hunter v. Prinsep, 10 East,
378; Luke v. Lyde, 2 Burr. 883; Christy v. Boic, 1 Taunt. 300; Mitchell v.
Darthcz, 2 Bing. N. C. 555; Vlierboom v. Chapman, 31 M. & W. 230; Blasco
V. Fletcher, 14 C. B. N. S. 14; The SoUomsten, L. E. 1 A. & E. 293. So where
the master was justified by the imminence of war in refusing to proceed to-
the original destination, he was not held bound to deliver the goods at an in-
termediate port without receiving compensation for the carriage. The Teu-
tonia, L. R. 2 A. & E. 395, 4 C. P. 171, and see Cargo ex Argus, L. R. 5 P. C.
134. In these cases, as is obvious, the freight 2'>ro ratti itineris becomes due,
not under the charter-party, but ])y a new contract inferred from the conduct
of the parties.

But Mhere a portion of a cargo Avas justifiably sold at a port short of the
destination in order to raise funds to repair sea damage to ship, although the
part sold fetched a higher price than it would have done at the port of
destination, and the price realised was allowed to the charterer on a general
average statement, and was received by him from the shipowner, it was held
that the latter was not entitled to recover pro rata freight on the part which
had been sold. Hopper \. Burness, 1 C. P. D. 137; and see Metcalfe v. Bri-
tannia Irnntvorks Co., 1 Q. B. D. 613, aflirmed 2 Q. B. D. 423.

It must further be observed that where a special contract has ))een only
partly performed, the mere fact that the part performance has been beneficial
is not enough to render the party benefited by it liable to pay for this advan-
tage ; it must be shown that he has taken the benefit of the part performance
under circumstances sufficient to raise an implied promise to pay for the
work done, notwithstanding the non-performance of the special contract.
Thus, in a modern case, the plaintiff having undertaken to complete certain
work for a specified price on houses belonging to the defendant, the whole
to be completed by a particular day, and to the satisfaction of a surveyor who
was named, failed to complete the work according to the terms of the con-
tract, but did work upon the houses. The defendant afterwards resumed
the possession of the houses, and was therefore, at the time of the trial, to
some extent enjoying the fruit of the labours of the plaintiff. It was held
notwithstanding that the plaintiff could not recover either on the special con-
tract, or for work and labour. For the special contract had not been per-
formed, and the mere fact that the defendant had taken possession of his-
own houses, upon Avhich work had been done, did not afford an inference

1-J:»»i CCTTKl: V. I'nWK.LI,.

tliiit III- liatl (li-.i»fiisf(l wltli tin- roiiditioii'* of till- spfclnl njrrooin««nt. or tliut
III- hull coiitracttMl to pay for tlu> work artiially (lon«> nrconllny to iii.:i^iir<-
and valiif. .ynnio v. Hiitt, « K. & B. 738]

'I'lie m-xt cxn'ptioii to tlif ^jeiUTul rule, lliut iio action of imlthiiit:,..^ .;.>-
miiupnit will 111- wlille the spt'clal contrurt rt-nmln.H nnpfrfornuHl, \h to he
found In a class of cases which establish the proposlthtn, that when one
party has absolntely n-fnse<l to perform, or has incapacitated Idniself from
perfonnln^ liis side of tiie contract, the other party may res<dnd the eon-
tract, and sne for what he lias already done under It, upon a '/ihihIuih mtruil.
'I'iial he may rescind It up«)n an nhmilutf reftisal liy the other party to per-
form Ids part, is proved by Withrrx v. /tt>nii>lil.i, the fai'ts of which have been
already stated. There, the plaintitr havln:; refused to pay for the loads on
delivery pursmmt t<» his contract, the ilefendunt was hehl entitled to rescind
it. •• If the plaintiir," .said Tattcson, J., '"had merely failed to pay for any
[(articular load, that, of itself, ndi;lit not have lu'cn an excuse to the defend-
ant for <lcliverini; no more straw" [see Jimmmithn v. }'</m»»/, 4 H. & S. 20«'i] ;
"but the |>lalntlll' licre expn-ssly refuses to pay for the loa«ls as delivered;
tlie defendant Is therefore not liaiile for ceasing to perfr>rm his part of the
contnut."

'I'ld-i case was <-ommented on In Frunklin v. Milhr, 4 A. •■<; K. ."I'.i'.l, and the
same doctrine laid down. '• The nile ls,"snld Coleridire. .]., " that in reselnil"
Inij, as in maklu!; a c«)ntraet, both parties must concur." In Withem v. AVj/-
uoliln, each load of straw was to be paid for on delivery. When the plaintifT
sal<l that he would not pay for his loads on delivery, that was a ^^^l/ faihire,
and the defendant was no lontrer bound t<» <lellver. In such a case It may be
taken, that the party refuslni; has abandoned the contract. [.Vnd see A'z
partr Cfi'ilmrrs. L. K. 8 Ch. -•"^'.> ; .Uonjnn v. nuin. ].. U. !•) C V l.'>; /»i re
Pho-nix Co., 4 I'll. n. lOS: A'j- purlr Stnphtnn, K) Ch. I), .'.st;.]

The refusal which is to authorise the rescission of the contract, must be
an iiii(|ualitled one. See the judi;ment of the court in Hhri'mtpenjer v. .!)i«/er-
Kiiti, ;'. Kxch. l.'iS [nnti It must be acted on as a breach by the person who ha.s
a rii;ht to insist on the perfonnance of the contract. The Danuhe, d'r., Hail-
iraij Cn. V. X<'no.H, 11 V. B. N. S. 1.".2; l.'J C. B. N. S. H2'>]. In Lin>-n v. AVr.*,
tried before Mr. J. ('olerid<;:e, at the Monmouthshire Summer .Vssi/es, 1H:J7,
the action was nssuinpsit, on a contra«*t to build a house for a specified sum,
with a count for work and labour, and materials. It aiipeared that the house
was not yet completed, but that a i;ood deal of extra work had been done l)y
the defendant's order; that the plaintiH' had called on him to pay for all that
had l)een done, and that he had replied " that he woulil not — perhaps never."
On this evidence the plaintitt"s counsel subndtted that he was entitled to
recover on a quantum meruit for the extra work, and also to treat the special
contract as rescinded. Coleridge, J., admitted that this would have been so,
had the refusal to pay been absolute and unqualitled; but thought that, in
this case, the refusal to pay must be construed with reference to the demand,
which was made, so far as the work done under the contract was concerned,
too soon. He therefore held the plaintitt' entitled to recover only for the
extras. This note of Lines v. Rees. has been kindly perused, and its accuracy
confirmed, by the defendant's counsel. Mr. Greaves.

[As to an absolute refusal to perform the contract and a rescission on that
ground, see also Cnrtv. Amben/ate Bailway Co., 17 Q. B. 127; Reidv. Hos-
kins. 4 E. & B. 979; Avenj v. Boxcden, 5 E. & B. 714; fi E. & B. 953, S. C;
Bartholomen' v. ^fark^c^ck■, 15 C B. N. S. 710; Leoson v. X. B. Oil, d:c., Co., It.
R. 8 C. L. ;W9.

CUTTER V. POWELL. 1237

In Avery v. Bowden, the defendant had agreed by charter-party to load a
cargo on board the plaintiff's ship at Odessa, certain running days to be
allowed. The declaration contained a count for not loading, which alleged
that before the expiration of the running days, the defendant had dispensed
with the ship's remaining at Odessa. To this count the defendant pleaded
that before the cause of action arose war had been declai'ed between England
and Eussia, and that the contract had thus been rescinded.

The facts appear to be that after the arrival of the ship at the port of
loading, and before the declaration of war, the agent of the charterer had
repeatedly told the master that he had no cargo for the ship, and that he, the
master, had better go awa}^ ; but the master had continued to require a cargo
until the declaration of war was known at Odessa, which was before
the expiration of the ship's laying days. It also appeared that in a con-
versation between the plaintiff and the defendant in England, after the
declaration of war, the defendant had told the plaintiff tliat he had deter-
mined not to load the ship, but to rely on the chapter of accidents, and that
he had telegraphed to his agent at the port of loading not to purchase a
cargo.

Upon these facts it was held by the Court of Queen's Bench, that, assum-
ing that the agent of the charterer had on his part renounced the contract
before the declaration of war, this renunciation, not having been accepted by
the master, did not either constitute a dispensation or give a cause of action.
Lord Campbell, C. J., in delivering the judgment of the court in favour of
the defendant, said, " According to our decision in Hochstcr \. De la Tour, 2
E. & B. G78, to Avhich we adhere, if the defendant, within the running days,
and before the declaration of war, had positively informed the captain that
no cargo had been provided or would be provided for him at Odessa, and that
there was no use in his remaining there any longer, the captain might have
treated this as a breach and renunciation of the contract, and thereupon sail-
ing away from Odessa, he might have loaded a cargo at a friendly port from
another person ; whereupon the plaintiff would have had a right to maintain
an action on the charter-party to recover damages equal to the loss he had
sustained from the bi'each of contract on the part of the defendant. The
language used by the defendant's agent before the declaration of war can
hardly be considered as amounting to a renunciation of the contract ; but if
it had been much stronger, we conceive that it could not be considered as
constituting a cause of action, after the captain still continued to insist upon
having a cargo in fulfilment of the charter-party."

This judgment was aflfirmed in the Exchequer Chamber, where the judges
stated that in their opinion there was no evidence of a dispensation. See also
Barrick v. Bubn, 2 C. B. N. S. 563, in which case a charter-party had been
made between an English and Russian subject for the loading by the latter
of a cargo at a Eussian port : and it was held that an intimation made to the
master at the port of loading by the agent of the charterer that he had ceded
the charter-party with all its rights and obligations to a third party, and that
he must address himself to that person for a cargo, was not sujh a renuncia-
tion of the charter as entitled the ship-owner to sue for a l^reach at tliat time ;
this intimation having been given before the time for loading had expired.]

Where a party has incapacitated himself from performing his side of the
contract, the same conseqiience follows as if he had absolutely refused to do
so. Robson and Sharp'', v. Drummond, 2 B. & Ad. 303, was an action by
Sharpe and Robson, who were coach-makers, against the defendant, for not

1288 CUTTKIt V. I'OWKI.L.

payini? for a cliariot which he had hlruil of Sharps for the yearx, at scvoiity-
llve ;iiihieas per aiiiiiiin ; S!iarj>e was to pahit aiul keep it in repair. Tlie
tlefeudant liail ctmtracted witli Sliarpe alone. Wlien tlireo years out of the
tlve were expired, thai person, having dis.soived partnersldp witli Uubtton,
tran.sferred tlie stoeic-in-trude, and among otlier tilings, the chariot in <iues-
tion, to liiiii. i{ot)S()n oft'ered to continue the contract with tlie defendant,
who refused to Iiave aiiytlung to say t(» liiin, l)Ut oll'ered to complete Ids
engagenuiit witli Sharpe. Sliarpe, however, stated that tliat was n<»w
ini|)ossil)le. I iider tliese circumstances, the court helil tliat the defendant
had a right to rescind the contract, and decline to lieep tlie chariot the
ryiiiaiiiiiig tw«» years. "'Hie fact," said Tarkt-, J., '"of Sliar(>e's having
transferred his interest in the contract to Uohsfni, was e<piivaleiit to s;iyiiig,
' I will not perform my part of the contract;' and this is an answer to the
present action."

On tlie same i)riiiciple was decided PUimhe v. Vulburn, S IJiiig. 14, the facts
of which will be pn-sently stated: see likewise J'ahiwr v. Tf)iij>lr, A. i K.
50H; Amur v. Frnnin, '.> A. v'i K. .')1M ; and /»>;/•-' v. IlunruniJ, 2 ('. 11. !•<).'>. In
this case the plaintiH' luul agreed to hoard and lodge the defeiitlant and his
son, and In payment for such board anil lodgiiii;, to take certain furniture
tieposited upon his preiiii.ses. After the agreeiiu-iit, ami before the action, a
creditor of the defendant obtained a judi;nieiit against him, and took the
furniture in execution. The c<nirt held that the case was the .same in effect
as if the defemlant had himself taken away the gooils, and that the plaintitr
was entitled to recover the value of the board and lodging upon the common
count as if the special contnu-t had never existed. See also the observations
in the latter i)art of the jud;;ment in Sutuls v. Clar/,-, H C. 11. 7(;2.

lint where a certillcate l)y the defendant's surv«'yor of the due execution
f)f work was made l)y the contract a condition precedent to the payment of
tlie price, it was hehl that tlie fraudulent collusion of the defendant willi the
surveyor to withhold such certillcate did not entitle the plaintiff to treat
the contract as at an end and sue upon an hnhhitfihis count for the jirice.
Milner v. Field, 5 Kxch. 821); and it was said the only remedy was a cro.s.s-
action.

(Ml a (piestioM of tliis sort d»pfiid> the coiitiMuance of a contract after the
death of one of the j»arties thereto; if it was one involving personal confi-
dence, the death of the party confided in, rendering its perfonnance impos-
sible, puts un end to it; otherwise not. See Wentn'nrth v. Ciick\ 10 A. & E.
42 ; [so likewise in contracts for personal services, the death of either party
puts an cud to them unless it be otherwise agreed. Famur v. Wilson, L. K.
4 C. P. 744.]

It must, liowcver, be observed, that, in a case of this sort, the breach of
contract which entitles the other contractor to rescind, must consist in the
non-performance of something essential. •• If the plaintiff," said Patteson,
J., in Withers v. Reyinilds, '• had merely failed to pay for any particular load,
that in itself might not have been an excuse to the defendant for delivering
no more straw." Accord. Fillieul v. Armstrong, 7 A. E. 557; Freeman v.
Taylor, 8 Bing. 124 ; Franklin v. Miller, 4 A. & E. 599 ; Ehrensperger v. Ander-
son, 3 Exch. 158; Corcoran v. Proser, Ex. Ch. Ir. 22 W. R. 222; [Frecth v.
Burr, L. R. 9 C P. 208; 43 L. J. C. P. 91.] Nor must it be a breach occa-
sioned by his own wrongful refusal to accept performance. See Fitt v.
Cassnnet, 4 Jf. & Gr. 898.

[In Hoare v. Rennie, 5 II. & N. 19, the contract was for the delivery of 6(57

CUTTER V. POWELL. 1239

tons of iron to be shipped from Sweden, in the months of June, July, August,
and September, in about equal proportions each month, at a certain price,
delivered in London.

In an action by the vendors for a refusal to accept or pay for the iron, a
plea justifying the refusal on the ground that the plain tifis had shipped in
June a much smaller quantity than that which was required under the con-
tract, and wei'e never ready and willing to deliver such smaller quantity until
after the defendants had had notice that the plaintiffs were unaljle to fulfil
their agreement as to the June shipment, was upheld by the Court of
Exchequer. This case, though questioned in Jonassohn v. Young, 4 B. & S.
296, was cited with approbation in Bradford v. WiUiams, L. K. 7 Exch. 259.

In Simpson v. Crippin, L. R. 8 Q. B. 14, however, a precisely similar point
was raised in the Court of Queen's Bench, and an opi^osite decision was
arrived at.

In that case the defendants had agreed to supply from 6,000 to 8,000 tons
of coal, to be delivered into the plaintiff's Avagons at the defendant's collieries,
in equal monthly quantities during the period of twelve months from the 1st
July. During the month of July the plaintiffs took from the defendants only
158 tons, and on the 1st August the defendants gave notice to the plaintiffs,
that in consequence of the plaintiffs having taken so small a quantity, they
cancelled the contract. In an action for refusing to deliver the residue,
it was held that the breach by the plaintiffs in taking a smaller quantity did
not justify the defendants in rescinding the contract, and Blackburn, J., said,
" If the principle upon which that case," i.e., Hoare v. Rennie, " was decided
is that wherever a plaintiff has broken his contract first he cannot sue for any
subsequent breach committed by the defendant, the decision would be opposed
to the authority of many other cases."

In Roper v. Johnson, L. L. 8 C. P. 167; 42 L. J. C. P. 65, in which a similar
point arose, the decision in Simpson v. Crippin was treated as conclusive.

Since the last edition of this work, the case of Hoare v. Rennie has been
much discussed in Honck v. Midler, 7 Q. B. D. 92; 50 L. J. Q. B. 529; and
Mersey Steel <fc Iron Co. v. Naylor, 9 Q. B. D. 648; 9 App. Cas. 434; 53
L. J. Q. B. 497.

In Honck v. Muller the defendant sold to the plaintiff 2,000 tons of pig
iron, at 42s. a ton, to be delivered to the plaintiff F. O. B. at maker's wharf,
at Middlesborough, "in November, 1879, or equally over November, Decem-
ber, and January next, at M. per ton extra." The plaintiff failed to take any
iron in November, and claimed to have one-third delivered in December, and
one-third in January, which the defendant refused, and gave notice that he
cancelled the contract. The majority of the court held that on the true con-
struction of the contract the plaintiff was bound to elect and give notice to
the defendant of his option in time to allow the latter to deliver the whole
or part in November, and that the plaintiff had not so declared his option,
and consequently could not maintain the action. Assuming, however, as the
plaintiff contended, that the defendant had become bound to deliver the iron
in three equal instalments, Bramwell and Baggallay, L.JJ., were of opinion
that the plaintiff having broken the contract by not taking the November
instalment, could not insist upon the defendant delivering the residue. That
to hold that he could, would he to enable the plaintiff against the will of the
defendant to substitute a contract to take 1,333' tons for one to take 2,000.
They ti-eated Hoare v. Rennie as well decided; and Bramwell, L. J., distin-
guished Simpson v. Crippin, on the ground that the breach there was not wit'i

1l'40 cittki: v. i'n\vi:i,i,.

rt'spect to till' first instalinciit, uii«l that the runtrui-t Imviiit; Iki-ii pnrt |H-r-
foriiu'tl, cmild not In- wholly undoiii'. Ilrt'tt. L. J., dlssciitrd from tills jinl«-
luciit, Hiul wiiH oT opinion that it wuh Iniiiiutcriul wliftlicr the brrucli wom In
rcHpert of tin; (Irst, or of a luti-r di-llvery, uiid that >/«iy»j«»(i v. ('rijtpin was
Inroiisistfiit with Ifixirr v. Ittunif, which latter caso ht; thought was wrongly
decidod, and lu- hrld that In tin- i-asi> hi-fon- tlu-in the plaiiitUr was entitled to

HUCCC'Od.

In the Mirtttij SUil A Iron Co. v. Xdijlnr, the defendants had a;;reed to pur-
chase from the plalntitrs r*,0<M) t<jns of steel hlooms, to he ilellveretl on hoard
at Liverpool hy instalments «>f I.ihm) tons monthly, commeiieini; with Jan-
uary, IHSl, payment to he made within three days after n'ceipt of shippini;
dociimeiits. After tlu" plalntitrs had «lellvcred a portion of the first Instal-
ment, a petition was presented to wind tip the plaintifr company, and the
defendants actlnj; upon the erroneous advice of their solicitor, refused to
make the payments due In res|iect of the <|uantlty d«-livered. In the mistaken
view that pendlni: the petition there was no one who could ijlve them a valid
<llscliar<;e fur the amount due. An order to wind up the plalntlH' company
havini; been made, and a ll(|uldator appointed, the latter refused to make any
further ilcllverles, on tin- ;;rouiid that the defenilants' refusal to pay for the
•piautity delivered, ;;ave him the rl;;ht to renounce the contract, and hroiiiiht
the action to recover the price of the iron delivered. The defendants coun-
terclalmed damages for the plalntilt's' failure to «lellver. Lonl Coleridfre,
C. ,]., held that the li<|uldators' ccmteiitlon was well founded, and that the
conduct of tlie defendants had absolved the plalntitrs from further perform-
ance of the contract, and precluded the defenilants from insistinj; upon It.
His ih"-i-iioii was, however, reversed hy the Court of .\ppeal. and the reversal
was atllrmed in the Mouse of Lords. Lord llramwell heini; a jmrty to the
decision. The latter learned lord re|>uiliated the dictum attributed to him In
Ilimck v. Miillrr, "That in no ca.se where the contract had been part per-
formed, could one party rely on the refusal of the other to jjo on," pointing;
out that every case must depend upon its special circumstances. Both in the
Court of Appeal and the House of Lords the rule of law jjovernlnj? ca.ses of
this class, as laid down by Lord C'oleridice in Fndh v. liurr, wan referred to
with approval. His lordship there says, after reviewinjj the authorities,
" There has been some contlict amongst them, but I think it may be taken
that the fair result of them is, as I have stati-d, namely, that the true ques-
tion is, whether the acts and conduct of the party evince an intention no
lomrer to be bound by the contract." Api»lyiiii; this principle to the ca.se
before them, their lordships had no dilllculty in decldinuc that the conduct of
the defendants in •withholdins; payment for a i)articular delivery, under the
erroneous advice of their solicitor, did not evince such an intention. Lord
BramwcU, in pointinjj out that in Ilonck v. Mulhr the conduct of the plaintiff
clearly did evince such an intention, reiterated his ajjproval of Iloare v.
liennie, which he treated as decided upon the same principle.

In the last edition of this wf)rk ITnarc v. linniip was treated as beini;
opposed to the wcijilit of authority. The explanation, however, of tlie
diversity of opinion as to that case is probably that jj;iven by Bowen, L. J.,
in the Mersey Steel Co. v. Naylor, at p. G71 of 9 Q. B. Ti., namely, " that the
plea was a special plea, which set out various facts from which two diflferent
inferences misrht quite well be drawn, and as one <n- th;- other is drawn, the
decision would appear correct, or the reverse."

The importance attached by some members of the court in Ilonck v. Mnlh r

CUTTER y, POWELL. 1241

to a bvearli with reference to the first, as distinguished from a later instal-
ment, may, it is submitted, be explained by similar considerations, when it
is remembered that the question in all these cases is one of fact. The dis-
tinction between a first and second instalment, though immaterial in point
of law, may be very material in point of fact, since a failure or refusal to
perform the first act under the contract will probably in most cases be much
more cogent evidence of an intention not to be bound by the contract, than a
subsequent failure by a person who has already by part performance evinced
an intention of holding to his bargain.

The mere insolvency or bankruptcy of either party does not of itself
operate as a rescission of the contract. See Ex parte Chalmers, L. R. 8 Ch.
289; Morgan v. Bain, L. R. 10 C. P. 15; Re Phoenix Bessemer Co., 4 Ch. D.
108; Ex parte Stapleton, 10 Ch. D. 586. See as to a subsequent disclaimer
by the trustee. In re Sneezum, 3 Ch. D. 4G3.]

It being therefore established, that where one contractor has absolutely
refused to perform, or rendered himself incapable of pei'forming, his part of
the contract, the other contractor may, if he please, rescind, such act or such
refusal being equivalent to a consent to the rescission, the remaining part of
the proposition above stated is, that upon such rescission he has a right, if he
have done anj'thing under the contract, to sue immediatehj for compensation
on a qnantum meruit. That he should do so is consistent with reason and
justice, for it is clear that the defendant cannot be allowed to take advan-
tage of his own Avrong, and screen himself from payment for what has been
done by his own tortious refusal to perform his part of the contract, which
refusal alone has enabled the plaintifT to rescind it.

He cannot, however, recover on the special contract, and must, therefore,
be entitled to sue upon a quantnm mernit, founded on a promise implied by
law, on the part of the defendant, to remunerate him for what he has done
at his request ; and, as an action on a quantum meruit is founded on a promise
to pay on request, and there is no ground for implying any other sort of
promise, he may, of course, bring his action immediately. This point is
decided by Planche v. Colhurn and Another, 8 Bing. 14. The declaration in
that case stated that the defendants had engaged the plaintiff" for lOOZ. to
write a treatise on Costume and Ancient Armor, to be published in "The
Juvenile Library;" that the plaintiff had written part, and was willing to
complete and deliver the whole for insertion in that publication ; but that the
defendant would not publish it there, nor pay the sum of 100^ There was
also the common count for work and labour.

At the trial it appeared that the plaintiff had been engaged on the terms
above stated, that he had completed part of his work, that he had made a
journey in order to inspect a collection of ancient armor, and made di-awings
therefrom ; but that he had never tendered or delivered his performance to
the defendants, they having finally abandoned the publication of " The Juve-
nile Library," on the ill success of some of the first numbers of the work.

The jury having found a verdict for the plaintiff with 50?. damages, the
court was moved for a new trial. It was contended, that the plaintiff" could
not I'ecover on the special contract, since he had not tendered or delivered
his work, and that he could not recover on the indebitatus count for work
and labour, because the special contract was still open. The court, however,
refused the new trial, holding that, as the defendants had, by putting an end
to " The Juvenile Library," incapacitated themselves from performing thr>ir
engagement with the plaintiff" to publish his Avork there, they must be taken

IJtii crrTKi: v. I'<»nvki.i..

In liavf aliuiiildiu'd tlii' contract altogether ; aii*l tliai lie ml^ht rei'over for
vvliut he Imd (lone, upon n •iiiuntuin mfruil.

" Tlie fact >va.H," .said Tindal, L. ('. .1., ■■ that tlie defendants not oidy r^ua-
pended, l>ut actnatly tmt an end to, ' Tlie Juvenile I.li)rary.' They hml Itroken
their contract with the plaintitT; and an attempt was ntado, hut i|ulte uiimic*
<-cHsfully, to show that the plaintilf had afterwards entereil into a now ron-
tra<'t to allow tlieni to pidtlisli his hook as a si-|)ar:ite work. I a;;ree that
wlien a special contract Is In exlsten<'e an«l open, the plaintitf cannot Hue on
a nnnntnin iinrilit : part of the question, therefore, here was. whether tlu-
contract did exist or not. It distinctly appeared, that the work was llnaily
aliaiidoncd. and the jury found tluit no new contni<'t Iwid heen entered Into.
I'luler these circiunstan<"es, the plaintiff oui;ht not to lose the fruit of his
laliour, and there is no ;;round for the application that has heen niaile."

[Aiul upon the .same principle, where a pentun had iN-on retnine<l a.s a
broker l>y the directors of a company upon the terms that he was to receive
a certain sinn at once, and a furtlier .sum when all the shares shiudd have
heen allotted, and the ilin-ctors afterwards, without any default on the part
of tlie broker, wound up the company l>efore all the shares had iH-eii disposed
of, thus n iiiltrimj iiiii>i>.i.tihlr thr tillnlinrht >•/ nil ihr Hhiirm, It was held that
the l>roker was entitled to recover not the stipulated sum, hut a reasonable
compensation for his services. Inrhhnld v. Thf UV,H/»r« Xfili/hrmj f'njTi-r
r,,.. 17 c. n. N. S. 7:w.]

It would .seem that the .same Act by one of the parties to a contract which
;;ave tlie other party who had partly performetl It a rl;:ht to resclml It. and
siu- iu i'ikIi liitaiii!* ii.'tstimiisit for what he miyht have iloiie under it, will, In case
of an executory contract where nothing; has b»en tioiie under It. amount to a
brea<-h of the contract so as to furnish a >;ronnd of ar-tlou. Si-e S/mrl v.
,SV<.;i., H i.1 H. :55K; LunhirK V. I'ntnihjn, S ^^. B. ;{:i ; li,nr,lfll V. l\ir.^i>i,n, 10
KasI, .S.V.I; Ford v. Tihij.W W. &. ('. ;i2o ; Curt \. AmhrnjnU linilinnj r,,., 17
(^ \\. r.'7; and in the case of lh.,hst,r v. Dp In Tniir. '2 K. v't B. r.7H, the Court
of (Queen's Bench held that such rljjht of action ml^ht be enforced even
before the «lay appointed by the contract f«»r Its |H"rformancu by either party.

In tliat case the declaration stateil that In consideration the plaintill' would
agree witli the defeinlant to enter Ids .service on the Isi of Juue. is.",^*, as a
courier, and travel with him as such courier for three months from the ^aid
1st of .luue. lit tlie rate of 10/. per month, the defendant undertook to receive
him into ills employ on the .said 1st of .June upon those teniis. The declara-
tion tlu'U averred that, from the time of the agreement until t/if tiiuc irhi-n
thp di'j'iinlant irrntujj'ulhj refused to jierform his promise and exonerated the
plaintitl' from performance, he, the ]>laintitr, was always ready and willing to
perform the agreement. Breach — that the defendant /)*;/brp the said lat of
June, 1852, refused to engage the plaintitf or perform his promise, and then
wrongfully exonerated the plaint itl' from the i)erformance of the agreement,
to the damage of the plaintitt". fhi- trrit tnis dntid on the 22iid of May, ls.",L'.

It was contended, in .irrest of judgment, that although a refusal by the
defendant to perform the contract, if continued up to the time fixed for its
performance, would give the plaintitf a right of action, yet the refusal was
revocable up to .such time, and the plaintitf could not sue until its expiration.
The court, however, decided that the plaintitf was not bcnind to wait until
after the first of June to bring his action, and that the declaration was good.
But see the judgment of Parke, B., in Philpotts v. Etnns. o M. & W. 47.5.
Perhaps the cases are reconcilable by supposing that the judgment in Iloch-

CUTTER V. POWELL. 1243

ster V. Dc In Tour applies to cases in which, in conseqnence of the refnsal,
something has taken place to interfere with the performing the contract
wlien the time arrives.

[It is impossible, however, even on this ground, to reconcile the judgment
of Parke, B., just referred to, in all respects, with the more modern decis-
ions; and in The Damibe, tfcc, RaUivay Co. v. Xenos, 11 C. B. N. S. 152, 13
C. B. N. S. 825, which has been already cited, it was held, in accordance with
these decisions, that where a contract is for the performance of a thing on a
given day, and the person who is to perform it declares before the day that
he will not perform it, then the other party has the option of at once treating
this declaration as a breach of the contract. Accord. Frost v. Knight, L. R.
7 Ex. 111. In that case the defendant had promised to marry the plaintifl' so
soon as his (defendant's) father should die. During his father's lifetime he
absolutely refused to marry the plaintifl", and it was held in the Exchequer
Chamber, overruling the decision of the Court of Exchequer, that for this
breach an action was well brought during the father's lifetime. And see
Wilkinson v. Venty, L. R. 6 C. P. 206.

In Johnstone \. Milling, 16 Q. B. D. 400; 55 L. J. Q. B. 102, an attempt was
made to apply the doctrine of Hochster v. De la Tour, and Frost v. Knight, to
the case of a lease with several covenants. There the defendant had become
tenant to the plaintiff for a term of 21 years, determinable at the end of the
first four years by six months' notice. There was a covenant by the plaintiff
to rebuild the premises at the expiration of the first four years on receipt of
a six months' notice from the lessee requiring him to do so. Before the
expiration of the four years the plaintiff had on more than one occasion told
the defendant that he would be unable to procure the money for rebuilding,
and in consequence of such statements the latter gave the six months' notice
required by the contract to determine the tenancy at the end of the first four
years. He, however, continued to occupy, paying rent to the plaintifi"s
mortgagees, on the chance of the plaintifl" being able to find the money to
rebuild. In an action brought by the plaintifl" against the defendant for an
independent claim, the above facts were proved in support of a counter-claim
for damages founded on the repudiation hy the plaintifl" of his liability under
the covenant before the time for jDcrforming it had arrived. The Divisional
Court held that though the lease was determined before the time had arrived
for performance the defendant was entitled to treat the plaintiff's declaration
of inability to procure the money as an anticipatorj^ breach within the prin-
ciple of the above cases, justifying the defendant in rescinding the contract
and suing for damages, and they gave judgment for the defendant. This
judgment was, however, reversed in the Court of Appeal. That court held,
that the facts proved did not establish a repudiation by the lessor of his obli-
gation under the covenant, but, assuming that they did, they held that the
effect of an anticipatory breach amounting to a repudiation is to give the
other party a right to rescind the contract, keeping it alive only for the pur-
poses of bringing an action upon it, or to hold to the contract and await the
time for performance. But that such repudiation beforehand is not a breach
at all, unless the other party elect to treat it as one, and that he cannot con-
tinue to reap the benefit of the contract and at the same time claim to treat
it as rescinded. They held in the case before them that the lessee had not
so elected, but had continued to cling to the contract, giving the requisite
notice under it to determine the tenancy. The court seemed to be of opin-
ion also, though they did not actually decide the point, that a declaration

]-2\\ (TTTKI: V. I'oWr.LL.

befoi't'hftiul of inability t<» lu-rfonii <»iie fovenant in a lease wliieli, if Ijroken
when tli(* time for perfornianrc arrived, wonld not liave enableii tlie lessee
to tl\ro\v np tlie lease, Surpli'ic v. Fnrnsiriirth, 7 M. v<. (!. r.7<">, conld not jns-
tify the lessee in reseindini? the contrnet within tlie principle of the caMes
referred to.]

There is a class of cases which ajjpear at first si;jht rjurtl;/ Hindlar to
Plnnrhp v. CuVnirn, and liofisini v. Dnimmond. ante, p. 38, hnt which will l)e
fonnd, on closer inspection, to be distintjidshed l)y a i)ecidiarity whlcli it
may be nseful liere to remarli. 1 alUuh' to those cases in whicli a servant,
who has enjjaged to serve for a certain time at certain wa-jes, is tnrned away
l)y his master before the period for wliich he had en<;a<red to serve has ex-
pired. In snch a case it is clear that, if his dismissal l)c in conse<|nencc of
his own misconduct, he will be entitled to no waives, for his faithful service
is a condition precedent to his rijijlit to them, and that condition he has not
performed. Turner v. Rohinson, C. & P. 15; '> B. & Ad. 7Ht) ; Callo v.
Brnnnrkrr, 4 C. & V. .'>1H; Sjtitin v. AnwH, 2 Stark. 2.'»fi; Anrnr v. Fraron, 9
A. & K. 5JS; Tiirnrr v. .U>tsnn, 14 M. & W. llfi; rjllnj v. A7irj;i, 11 Q. B.
742; [unless indeed the terms of the agreement be such .is to show that the
Intention of the parties was that the rijiht to waices shouhl be dlvisilile. Sec
Button V. Thiimpsitn, L. H. 4 t'. 1*. 3:50. In that case the plaintill' had l)een
shipped as mate on board defendant's vessel, on a voyajfe from Shields to
Alexandria and home, " voyay:e iu)t expected to exceed twelve months,
amount of wajjes per calendar montii, 5/. lOx." lie had been drunken and
insubordinate during the voyage out, and being on slujre at Sullna was left
behind, and the slnp came home without him. In an action for wages for
the time during which he had actually served on board, it was held, Brett, J.,
dissenting, tliat he was entitled tf) recover, though possibly not until the
whole period of service stipulated for liad expired.]

But, if the dismissal be unjust, the master cannot Ity his wrongful dis-
charge prevent the servant from recovering due compensation. Such a case
seems to range itself under the rule we have been just discussing. The mas-
ter has absolutely refused to perform his contract with the servant, and it is
apprehended that the servant has thereu|>on a right to rescind it, and to sue
upon a (innntnm meruit for what he has already done under it. See the judg-
ment in fAlh'n V. Ehrin, 11 Q. B. 742.

But though he may rescind the contract, he is not. it has been said, obliged
to do so. He has a riirht. it has been said, to consider it still in existence, to
treat the wrongful dismissal as no dismissal at all, and to demand, at the
expiration of the time for which he was hired, the whole of his stii)ulated
wages, — not on a quantum meruit, but by virtue of the special contract, his
own part of which he may then safely aver that he has performed, his readi-
ness to serve during the rest of the terra being considered equivalent in law
to actual service; and it has been thought that he may sue in indehitatus
assumpsit, that being no more than any creditor may do upon an executed
special contract, and his action, though not special in its form, being still
upon the special contract and supported by the same evidence by which a
special count would be substantiated. (inndeU v. Pontirnvj, 4 Camp. 37."), is a
direct authority in favour of tliese petitions.

That was an action brought by a clerk for his whole (juarter's salary
against his master, who had wrongfully dismissed him in the middle of a
quarter; the declaration only contained the common count for work and
labour. Lord Ellenborough : " If the plaintiff was discharged without a suf-

CUTTER V. POWELL. 1245

flcient cause, I think this action maintainable. Having served a part of the
quarter, and being willing to serve the residue, in contemplation of law he
may be considered to have served the whole. The defendant Avas therefore
indebted to him for work and labour in the sum sought to be recovered."

[This peculiar view of the rights] of servants and agents wrongfully dis-
missed, resulted altogether from the doctrine of constructive service, which
originated in decisions on the law of settlement ; and though it may be appli-
cable to some other cases (see Collins v. Price, 5 Bing. 132) it seems difficult
to understand how it can be rationally applied to most other cases of special
contract. For instance, in Plandie v. Colburn it would have been impossible
for Mr. Planche, with much show of reason, to contend that he had construc-
tively written the whole treatise on armour, when, in point of fact, he had
only finished half of it. It has, however, been applied to cases of servants,
clerks, and agents; and perhaps, therefore, the result of the authorities on
this subject may be, that a clerk, servant, or agent wrongfully dismissed,
has his election of three remedies : viz., that,

1. He may bring a special action for his master's breach of contract in
dismissing him, and this remedy he may pursue immediately. Pagani v.
Gandolfi, 2 C. & P. 370.

2. [It was once thought] that he might w^ait till the termination of the
period for which he was hired, and might then sue for his whole wages [as a
debt due to him in respect of complete performance of the contract on his
part], relying on the doctrine of constructive service, Gandell v. Pontigny ;
and see Collins v. Price, 5 Bing. 132; and Smith v. Kingsford, 3- Scott, 279,
vide tamen the observations of the judges in Smith v. Hayvard, post. [See
also Feicings v. Tisdal, 1 Exch. 295, and the opinions of the judges in Emmens
V. Elderton, 4 H. of Lords Cases, 624. It is now, however, clear that this
remedy is not open to him, for he cannot allege that the defendant is
indebted for work done ; but it does not follow from Fewings v. Tisdal that
a special action of debt averring a contract to pay, a continuing readiness on
the part of the servant during all the period to serve, and a dispensation
from the service on the part of the master, might not be maintained. See
the opinion of Mr. J. Crompton in Emmens v. Elderton, ubi siqyra.^

3. He may treat the contract as rescinded, and may immediately sue, on a
quantum meruit, for the work he actually performed ; Planche v. Colburn;
but in that case, as he sues on an implied contract, arising out of actual ser-
vices, he can only recover for the time that he actually served.

This last was the point really decided by Lord Tenterden in Archard v.
Horner, 3 C. & P. 349, a case sometimes (though, it is submitted, inconsider-
ately) cited for the purpose of showing that a servant wTongfully dismissed
cannot after the expiration of the term for which he was hired sue in indebi-
tatus assumpsit for a compensation for any longer period than he has actually
served. In that case the plaintifts declared on a special count, stating a
hiring for a year, adding a count for wages. It turned out that the hiring
was for a year, determinable by a month's notice. Lord Tenterden held that
they could not recover on the first count, on the ground of variance, nor on
the second for more than the period of actual service; and as a sufficient
sum had been tendered to cover that, he directed a non-suit. It would appear
that in this case the action was commenced before the expiration of the term,
and, if so. Lord Tenterden's ruling is perfectly reconcilable with the case of
Gandell v. Pontigny ; and this it probably was which, on its being contended
in Ridgioay v. Hnngerford Market Co., 3 A. & E. 171, that the plaintiff, a dis-

1240 (TTTKK V. I'OWKI.L.

missed cltM'k, wlio had wailid till the i-xpi ration of tlio torin before brinjiinfr
liis action, could nctt niaintuiii imlrhifadts iis.<tu))ij)sit for his whole wayeH
«'liciti(l from Mr. .Justice Coleridj4;e the remark that, •• if it were necessary,
lie sliould liave wished for time to consider how far this <|Uestion Is tleter-
mined by the doctrine laid down by Lord 'IVntenlen in Anhnnl v. Jfurner."

That the decision of Lord Tenterden, in Arrliard v. Ilorncr, proceeded on
the fjrounds above stated, lias been since asserted by the court, In Smith v.
Ildi/iranl, 7 A. & K. 544. In that case the plaintitt'had lieen hired from June
1st for a year, determinable by three months' notice. lie was turned otf
wiliiout notice on Se|)teml)er IDtii. ami commenced an action on Septend)er
22ii(l, iiavinj; previously oHered to serve tin- entire i|uarter. Tiie declaration
contained a special count on which the plaintilf failed, by reason of a vari-
ance, and an indihUntitx count, upon which 4/., l)eiiis; a sutllcient sum to cover
tile i)eri<Hl of arltatl tirnirv, i.e., to the 22nd of September, was paiil into
court, lie was held to be entitled to no more, \\\nm the jrround, that (what-
ever misrht hav(> been the result if he had Avaited till the end of the year or
of the current (puirter) he could not recover on the tinlrhitalus count in re-
spect of work done tlurinj; a lime which had not elapsed when he ct>mmence«l
his action. It must be admitted tliat the Jud;;es cast strony relleclions u|>on
dnmlfll V. /'oiitii/iiij, without, however, overrulini; it.

It would not b«' ri<;ht to (juit this subject without noticini; the ca.se of
/•'urdh/ V. J'riir, 2 N. oi K. XVA. in which a dillVrent construction from any
tiiat has been yet suf;.f;ested, was put upon a contract very sindlar to that in
Arrhnrd v. Ifonirr. The declaration contained a count for schoolinj;, hxlg-
ins;:, board, meat, drink, &c. The last count stated, that In consideration that
the plaintiff had, at the request of the defendant, received J. \V. as his
sdiolar, and that J. W. had left the plaintiirs school without due notice, the
defendant prouused to pay the plaint! tl" as nuich money as he therefore rea-
sonai)ly deserved to have. It api)eared that the defendant had sent J. W. to
tills pl.iiiitiir's school, and taken him away without notice, the tenns of the
school beiivsj, that " a (piarter's notice is refpiired to be <;iven before the re-
moval of any young gentleman, or to pay for a (piarler." The plaintitl" hav-
ing recovered for a quarter, it was contended, on a motion for a new trial,
that the special count was not proved, and that the plaintiff could not recover
on the indchilfitns count, because the consideration was not actually executed.
The court, however, held it was so.

" The terms of the scIkjoI," said the Lord Chief Justice, "are, that oO/. a
year shall be paid; but that if the scholar .shall be taken away without notice,
an additional (luarter shall be paitl. Still, however, the tiling to be paid for
is that which has been supplied. The price for half a year is l.j/. ; but if, at
the end of half a year, the scholar is taken away without a (juartcr's notice,
the price for the first half-year is 15^ and 17/. lOs."

But Eardly v. Pt-ice has since been overruled by the case of Feicings v.
Tisdal, I Exch. 295. That was an action of indtbitatua assumpsit for wages
as a hired servant, and was brought to recover a month's wages claimed ))y
the plaintiff, who, being a yearly servant, had been discharged without notice,
and received wages to the time of her dismissal only. The under-sheriff be-
fore whom the cause was tried, non-suited the plaintiff, upon the ground that
the declaration should have been special, and the Court of Exchequer held he
was right in so doing.

" It seems to me." said Baron Parke, in his judgment. " that the true na-
ture of the contract between a master and his servant amounts to this, that it

cuttp:u v. POWELL. 1247

is an agreement for a year's service, with the addition that the master may
tnrn the servant away at any time, on giving liini a month's warning, or in
lien of tliat, a montli's wages. It is retlning to say tliat tlie montli's wages
given under sucli circumstances, are an additional compensation for the by-
gone service; and I cannot help thinking that, in Eardly v. Price, the Court
of Common Pleas, in oixler to ol)tain justice for that particular case, broke in
upon the rules of law. Archard v. Horner is, in my opinion, very good sense,
and lays down a good rule."

The right to rescind the contract at any time by giving a month's notice,
or in lieu thereof a month's wages, only exists in the case of contracts with
menial servants. See Broxham v. Warfstaffe, Exch. H. T. 1842, 5 Jur. 845.
[And it seems that in such cases the servant cannot claim board wages, Gor-
don V. Potter, 1 F. & F. 644.]

Since the case of Fewings v. Tisdal, and the observations of the Judges in
Smith v. Hayward, before referred to, [it can hardly be doubted] that the
case of Gandell v. Pontigny, would not be supported at the present day ; and
[the opinion] expressed above (p. 49) that a servant wrongfully dismissed
cannot wait till the termination of the period for which he was hired, and
then sue on the common counts for his whole wages, treating the service as
constructively performed, is strengthened by the observations of Patteson
and Earle, JJ., in Goodman v. Pocock, 15 Q. B. 576, a case which appears to
have shaken still further the ruling in Gandell v. Pontigny.

In Goodman v. Pocock, the i:)laintifl*, a commercial traveller, hired for a
year at wages payable quarterly, and wrongfully dismissed in the middle of a
quarter, had brought an action for wrongful dismissal, and the declaration
contained a special count for the dismissal, and also an indebitatus count for
work and labour. The judge who tried the cause directed the jury not to
take into account the services rendered during the broken quarter, as these
services were only recoverable under an indebitatus count, and the particulars
of demand did not include any such claim. The jury gave damages accord-
ingly, excluding any remuneration for the services during the broken quarter.
The plaintifl" thereupon brought a second action, claiming under an indebitatns
count the value of those services ; but the court held that the second action
was not maintainable, as the plaintifl" had, by his former action, treated the
special contract as still open, and having recovered damages on that footing,
he could not afterwards sue on an indebitatus count, treating the same con-
tract as rescinded. The court also held that in the first action the jury ought
to have been directed to take into consideration the services actually rendered
during the broken quarter, in awarding damages under the special count.
See also the observations in the judgment of the Exch. Chamber in Elderton
V. Emmens, 6 C. B. 178; [S. C. in Dom. Proc. 4 H. of Lords Cases, 624];
Snelling v. Lord Huntingfield, note {b), 1 C. M. & K. 26, and Walstab v.
Spottiswoode, 15 M. & W. 501.

[In Gnckson v. Stones, I E. & E. 248, where a contract had been entered
into by the plaintifl' to serve the defendant for ten years in the capacity of a
brewer, and the defendant had undertaken to pay to the plaintifl' a weekly
sum during that term, it was held that a temporary illness of the plaintifl',
not amounting to or treated as a dissolution of the contract, did not disen-
title him to recover the weekly payments in respect of the time during which
lie had. through illness, been unable to w^ork; the contract being still in
force, and having been so dealt with by the defendant.]

Assuming the position to be correct, that a servant or agent, wrongfully

1248-1272 ciTTi:i: \. 1'..ui.i,l.

(lismissi'd, niny wait till thf (•xi)iratl(>n of tlu* tcnn, and then maintain an
action [in the natnrcj of indthitittus dssumpsit for his whole wa^^es, (|Ucstions
may arise as to his conduct in the intermediate lime, and liow far it may
atl'urd the master a defence, or j^found for miti^atini^ damages : as, for in-
stance, if lie have before the expiration of his term hired himself to another
master. See Cuinmimj \. Columbine, G Dowl. :17:J; and Siixk- \. J'hillijm, 5
>r & \V. 27!).

.V qnestion may also arise, liow far the first nmster nuiy be entitled to his
intermediate earninijs, l)y virtue of the doctrine asserted in I'hinnjKiint v.
lltii-flork\ 1 Camp. .">27 ; Diplnck v. liliickhurne, :\ Camp. 4:1; [Morrison v.
Thompson, L. U. '.» i^. B. 480.] See Patmore v. Culburn, 4 Tyrwh. H4(», and 1
C. M. & It. Cut.

Where the contract of yearly service Is put an end to by consent in the
ndddle of a (juarter, there is no implied cctntract to pay ;»r« r«/<"/, imt a new
aj^reement to pay for the broken part of the year's service may be inferretl
from circmiistuiiifs. wiiirii sli<»uld therefore i»e submitted to the jury : [.nut-
hitni v. ('rnilrii, 2 M. & fJ. 2.">.? ; and see Thoinns v. W'illiitins, 1 .\. v<i K. flH.').

'riiere is a class of cases in which a special contract remains open, Imt
somelhin;; lias been done by the plaintltT heijoml what he was to perfonn
according; to the contract and that has been done at the instance of tlie
defendant. In such ca.ses the extra work, not belni; nmler the contract at
all. Is the subject matter of an action fin the nature] of indifiitahis nnnumpsit ;
yet the contract must l)e proved, in order that It may appear how much was
extra. Buxton v. Cornish, 12 M. & W. 42G.

BICKERDIKE v. BOLLMAN.

MICH. 27 GEO. S. — IN THE KING'S BENCH.
[reported 1 T. R. 405.]

A., a creditor of B. to the amount of llbl. 3s. 8c?., took his bill for
201. on C, 7vho had not then^ nor afterwards., any effects of B.
i?i his hands. The bill lohen due was dishonoured., and no notice
thereof was given by A. to B. ; still A.'s demand on the bill was
not discharged., but he may sue out a co7nmission of bankrupt
against B., and his debt will support it.

Case for money had and received to and for the use of the
hankrupt, before his bankruptcy. 2nd count. On an account
stated with the bankrupt. 3rd. For money had and received
to and for the use of the plaintiffs as assignees. 4th. An
account stated with the assignees. Plea, non assumpsit.

This cause was tried at the last assizes for the county palatine
of Lancaster, before Buller., J., when the jury found a verdict
for the plaintiffs, subject to the opinion of this court, on the
following case :

That the act of bankruptcy was committed in the middle of
August, 1784. That in the month of August, 1784, the bank-
rupt was indebted to Greatrix and Co., the petitioning creditors,
in 115?. 3s. 8d. That on the 15th of September, 1784, the
bankrupt drew a bill for 201. on the defendant («), " who then
until the time of the bankruptcy, and of the bill becoming due,
was a creditor of the bankrupt," payable to Greatrix and Co.
two months after date, and paid the same to them on account
of their said debt ; which bill v/as presented for payment on the

(a) The words between the inver- on the argument, with the consent of
ted commas were added by the court, both parties.

1273

1-J74 l:i( lvl.l:l»IKh \'. linLl.MAN.

l.Sth of Novt'iiiljcr follow iii^' ;iml iUsIiououiimI. That no notice
of the non-payment of the bill was ever ^'iven by (jieutrix and
Co. to the bankrupt, or left at his house. I'hat (Jreatrix and
Co. received tlie bill at Manchester on the -4th of Novendjer,
between the hours of eleven and twelve at no(»n ; but the pest
^oes from London to Manchester in three days. 'Ilu' bankrupt
then resided at Manchester; but in general secreted himself,
and particularly on marki-t days, after the 20th of NovcndK-r,
on w liicli day a commissinn «tf bankrupt issued agaiu>.t him, and
he was declared a bankrupt at MaMcliester under that commis-
sion, in the afternoon of the L'4lh of Novemln'r, but at what
hour did not appear; and that connnission has since l)een
superseded. Afterwards another eoniniission wius i.ssued on
the petition of (Jreatrix and Co.

The (piestion for the opinion of the court is, whetlu-r the
debt, proved to Ix' due to them under the circumstances alM)ve
mentioned, is sullicienl to su[)port that commission?

Ch<imhrt\ for lln' plaintifl' (after observini^ that the oi»jceti(»n
which had been raised to the petitionint; creditor's debt was,
that the bankiupi was to be considered as discharged from the
bill for li<)/, wbieh he had diawn in favoui- of the jtetitioning
creditor, no notice having l)een given to the i)ankrupi <•! the
bills having been dishonoured,) made thi-ee (juestions :

1st. That no notice was necessary to l)e given to the bank-
rupt in this case. -ndly. That even if notice were necessary,
il had virtually been given. Hrdly. That it was not competent
to the defendant in this action to make tlu- objection.

As to the first, notice must in general be given ; but most of
the cases have arisen where the holder has given indulgence
to the acceptor, by whiili he is co.nsidered as having made his
election, to look to the acceptor oidy for payment. The reason
on which the rule, reciuiring notice to be given to the drawer,
is founded, is on a supposition that he may have effects in the
hands of the drawee, and that he ought to have an opportunity
of recovering satisfaction from him ; and a presumption arises
that the di'awer will suffer from the probable insolvency of the
drawee, in consequence of the holder's neglecting to give notice.
But in this case that presumption is repelled by stating that
the bankrupt was a debtor to the drawee ; therefore the lule
does not apply. By an ordinance of France (</), the drawer,

(a) Postletlnv. tit. liills of Exchun<i;o. l(j and 77 art.

BICKEUDllvE V. BOLLMAN. 1275

in order to discliarge himself from tiie piiyment of a bill on
account of his not having had notice of the non-acceptance by
the drawee, nnist show that he had effects in the other's hands
at the time of drawing. The rule requiring notice to be given
to the drawer was introduced for his protection, and therefore
ought not to be abused so far as to enable him to do injustice.

Secondly. As this case does not fall within the reason on
which the rule of law is founded, the bankrupt, not having had
effects in the hands of the drawee at the time that the bill was
drawn, must be considered as having had virtual notice that
the bill was not honoured. Supposing, however, that the rule
of law would be inflexible in an action on the bill itself, yet
the question here is not altogether whether the drawer can be
resorted to on the bill, but whether the circumstances here
stated extinguish the preceding debt. But it has been repeat-
edly held that the mere drawing of a bill of exchange does not
extinguish the preceding debt.

Thirdly. The case of Quantock mid others against England (a)
is decisive. On a question whether a debt barred by the Statute
of Limitations was sufficient to found a commission of baid^rupt
upon. Lord Mansfield said, " The Statute of Limitations does
not destroy the debt ; it only takes away the remedy. Here
the debtor himself has not objected; he has submitted to the
commission, and been examined under it ; therefore the objec-
tion does not now lie in the mouth of a third person ; " and he
said that iS^'^m and Walling er (^j) was in point. Li this case
the notice to be given was for the benefit of the bankrupt, and
the slightest acknowledgment would be considered as a waiver
of it.

Bidler^ J. The banki'upt himself could not waive it after the
bankruptcy.

Cliamhre. But the assignees may waive it for the purpose of
supporting the commission.

Law^ contra. The debt of the petitioning creditor being
reduced under 100?. by the bankrupt's drawing the bill in ques-
tion, is as much discharged by the laches of the holder in not
giving notice of the non-acceptance of the drawee, as by actual
payment. And as to the assignees waiving this ol^jection, it is
no answer in the present action. For in all cases where actions

(«) 5 Burr. 2G28. 2 Black Rep. 702, S.C. " (&) 2 Stra. 74G.

1276 jucKKitinKi-: v. hullman.

iut' biou^lil 1)} ilif a^.^iyiHo of a l)iinknii)t, they inu.->i iiuik«;
out a clear title, which ihcy cannot do without provinj^ a legal
tlcht of the pcliliouinj^ creditor; and they cannt»t by their own
act make that a good del)t which would not he so otherwise.

As to notice not having heen necessary because the tirawer
liad IK) effects in the drawee's hands, that goes to measuring
the inconvenience which would result in every particular case
fiom not giving notice. Hut the court l.ave always said that,
whether any actual change of circumstances has or has not
taken place, or whetlu'r the drawer may or may not have suf-
fered from the negligence of the holder in not having given
notice in due time, it is a strict rule of law, introduced for the
sake of certainty, and that the drawer may have an oppnrlunity
of resorting to the drawee. In the case of Pcarh and ]i\ir-
gens (^a), \\\\vY<' a (juestion arose upon the necessity of notice
heiuL' Lfiven tn the drawer, it was lontcnilcd that no chanire of
tarcumstances had taken place, ov prohahle inconvenience had
ensued, from want of notice; hut Loril Manstield said, it was a
strict ride of law that notice should he given, and it must be
adhered to in ivery case. This ease does not come within the
rules laid down in the cases of Timhtl and Brown, or Medcalf
and Hull (h), as to what shall be deemed sulVicient notice of
non-payment or non-acceptance; because here there was no
notice at all. It was said by Lee, in arguing the case of Riissi-ll
and Lan;/sf([tJ' (f^, and not denied by the court, that it had been
frcijuently ruled l)y Lord Manslield at (Juildhall, that it is not
an excuse for not demanding payment on a note or bill, or for
not giving notice of non-payment, that the maker or acceptor
has become a bankrupt, as many ways may remain of obtaining
payment by the assistance of friends or otherwise.

The bills having been given after the act of bankruptcy, does
not vary the present case ; because a debt may be discharged
in due course of trade, either by payment of the money after
a secret act of bankruptcy, or l)y payment of the bill, or by
dishononring it.

With regard to the debt's being extinguished by taking this
note from the bankrupt ; by 3 & 4 Anne, c. 9, s. 7 ('/), it is
enacted, that " if any person accept a bill of exchange for 20/.

(a) Sittings at Guildhall, cor. Lord (c) Dougl. 514.

Manstield. (d) [Made perpetual, 7 Aune, c. 25,

(b) Tr. 22 G. 3.- s. 3.]

BICKERDIKE V. BOLLMAN. 1277

or upwards, in satisfaction of any former debt, the same shall
be accounted a full and complete payment of such debt, if such
person accepting of any such bill for his debt doth not take his
due course to obtain payment thereof by endeavouring to get
the same accepted and paid, and make his protest as aforesaid,
either for non-acceptance or non-payment thereof." Here there
was neither protest nor notice, and therefore the bill must be
considered as complete payment.

Chamhre^ in reply, was stopped by the court.

Ashurst, J. As to the general rule, it has never been dis-
puted, that the want of notice to the drawer, after the dishon-
our of a bill, is tantamount to payment by him. But that rule
is not without exceptions ; and particularly in the case men-
tioned by the plaintiff's counsel, that notice is not necessary to
be o^iven where the drawer has no effects in the hand of the
di-awee (a) ; for it is a fraud in itself, and if that can be proved,
the notice may be dispensed with. In this case it appears that,
at the time of drawing the bill, the drawer, so far from having
any effects in the hands of the drawee, was actually indebted to
him to a large amount.

But even admitting this to be a general rule without any
exception, it was certainly introduced for the benefit of the
drawer. Now every rule may be waived by the person for
whose benefit it is introduced. Under the circumstances of
the present case, the di'awer must be considered as having
waived this benefit, because the commission is founded on that
creditor's debt, between whom and the drawer this transaction
has happened ; and his submitting to it is a waiver of the want
of notice, and an admission of the debt ; which admission the
assignees have subsequently confirmed by bringing this action.
Therefore I think that as the bankrupt himself has not chosen
to take advantage of it by moving to supersede the commission,
it does not now lie in the mouth of a third person to do so.

BuUer, J. The last point may be laid entirely out of the
case, because, unless the objection be well founded in the case
of the bankrupt himself, it is immaterial to consider how far it
was competent fqr a third person to take advantage of it. The
case of Quantock and England does not apply. There the
question was, whether a third person should be permitted to
avail himself of the Statute of Limitations. There might be

(«) Vid. Galex. Walsh, oT. \l. 2:'.ii.

lliTH BICKKUniKK V. ItoLLMAS.

good reasons for disiillowing it in ili.il tiise, beciiuse the debt
still renmint'd in lonscieme. Hut here tht- «jiiestitin is, whether
there was a suiliiient debt to supixut tlie eonmiission iit the
time when it issued.

The tirst point to be eonsidered is, whether, under these cir-
cunistanees, it was neeessary to give notiee within as sliort a
tinu' as could eunveniently i»e done, that the i)ill was neither
aeeeptt'd nor paid. I am of <)[)inion that no sueh iiotire
was nccfssarv. < )n tlu- sccctnd trial of the cause i»f Timlal amd
Jiro/vn before nie at (iuihlhall, the jury told me tln^y found
their verdict for tli*- plaiiitilT on the i^iound that it had not
appeared from the evidence that any injury had arisen to the
j)arty from want of notice. In eonsecjuence of which, upon the
subsecpUMit trial, I told the jury that where a bill was aeceptetl,
it was y>r///j^ /«'•/#• e vide nee that there were effects of the drawi-r
in the hands (jf the acceptor. The mistake of the jury on the
former (n-casion had arisen from their taking it ft>r granted that
the drawer had not been injnied by the want of notice. l>ecause
he had not proved it, whereas that j)roof lay on the plaintitT to
produce. And u[)on my mentioning this matter to the court,
they thought that if there were no effects in the hands of the
accefitor, that would vary the (piestion veiy nnich, as the
drawer could not be hurt.

The law require)! notice to he [liven, for this rruxon, fiirmixe if ix
premnu'd that the hill is drawn on arrount of the ilrawee'x havinif
effects of the drawer in his hands ; and if the latter has notice that
the hill is not accepted^ or not paid^ he mai/ withdraw them imme-
diateli/. But if he has no effects in the other 8 hands^ thm hr can-
not he injured for want of notice (a). Soon after I sat on this
bench. I trieil a cause at (Tuildhall, on a bill of exchange which
was cither drawn or accepted by a person residing in Holland,
and a full s[)ei'ial jury, under my direction, found a verdict for
the plaintiff, notwithstanding no notice had been given to the
drawer of the bill's having been dishonoured, because he had no
effects in the hands of the person on whom the bill was drawn.
The verdict never was objected to ; and if it be proved on the
part of the plaintiff that from the time the bill was drawn till
the time it became due, the tlrawer [drawee] never had any
effects of the draw^ee [drawer] in liis hands, I think notice to
the drawer is not necessary : for he must know whether he had

(a) See Fitzgerald v. Williams, (i Bing. N. C. G9.

BICKERDIKE V. BOLLMAX. 1279

effects in the hands of the drawee or not ; and, if lie liad none,
he had no right to draw upon him, and to expect payment from
liim; nor can he be injured by the non-payment of the bill, or
the want of notice that it has been dishonoured. On these
grounds I think the petitioning creditor's debt was sufficient to
support the commission.

Besides, in the present case, as the plaintiff's counsel have
truly argued, the question is not, whether an action could be
maintained on the bill itself, but whether the want of notice
extinguishes the debt. As to which the case is this. A. not
having any effects in C'.'s hands, draws a bill of exchange for
100?. on him, in favour of B., for value received. Now if 0.
does not accept, and B. does not give notice to A., there is an
end of the bill. Then how does the case stand ? A. has 1001.
of B.^s in his hands, without any consideration, which therefore
B. may undoubtedly recover in an action for money he had
and received.

Per Curiam.

Let the Postea be delivered to the plaintiffs.

[Though the law as to notice of dishonour is now codified by the Bills of
Exchange Act, 1882 (45 & 46 Vict. c. 61), nevertheless, as there have been
few cases decided upon its construction, it has been thought desirable to
retain the folloAving note, which deals with the state of the law at the time
when it came into operation.]

In Goodall v. DoUey, 1 T. E. 712, in which case the action was brought
against the payee, Buller, J., intimated that, had the action been against the
drawer, the case would have been governed by Bickardike v. Bollman. And
in Rogers v. Stephens, 2 T. R. 713, the decision was partly founded on Bicker-
dike V. Bollman, which Grose, J., said had been well considered; and in Legye
V. Thorpe, 12 East, 171, an action was brought by the indorsee against the
drawer of a foreign bill drawn on one Wyatt; the declaration negatived
effects in the hands of the drawee or any consideration for the bill. It
appeared at the trial that the defendant had no effects in Wyatt's hands, and
that the latter had therefore refused to accept, but that Wyatt was one of
the executors of a person called Weeks, and that Weeks' executors had
desired the defendant to employ the payee of this bill to do some work on
AYeeks' property; and the defendant therefore drew this bill on Wyatt
to settle with the payee. Wyatt denied that he had assets to pay the bill.
The only question was, whether a protest of non-acceptance was necessary; .
Lord Ellenborough thought not, and the plaintiff had a verdict; and on a
motion for a new trial, tlie whole court thought the case governed by Bicker-
dike V. Bollman, and discharged the rule.

12H0 UICIvKl:l)IKK V. IIOLLMAN.

Clariilfje v. DaWni, 4 M. Ji S. 22ti, In another .struu;; i-.\ciit]iUlU-atlon of lhl.>i
doctrine. Tbure tlu* drawer of a bill hail no effeetM In the hands of the
drawee, but had supplied him with {{oods upon a credit, which would not,
however, expire till lontf after the hill would be«-«)n>e. line. Me wa.s held not
to be entitled to notice of Its dishonour. •• The ca.se «>f liirkfriiike v. Hull-
man" said Mr. J. Bayley, " has estal)iislu'(i, and I am disposed to think,
ri;:jlitly, tliat a jiarty who cannot !)e jirejiidiced l)y a want of notice, shall not
be entitled to require it."

In analoj^y to the rule wITkIi dispensed with noticf in sucli cases as tlu-
above, It ha.s been held, tliat It is unnecessary as against the tirawer to
jtrrsent such a bill on the day of Its becondng due. Terry v. I'tirkfr, «» A. & K.
r.02. [ ]yirth V. Ait^^tfH, L. H. 10 C. V. i)A\).]

Hut even In the very cases in widch Itirkinlikf v. liollinnn has l)een acted
upon, it has l)een ileclared, that the rule estai)llshe»l in that ca.se nuist not be
extended. In Clitruhjv v. D'tltnn, Mr. .lustici- I,e Hlanc went so far as to
reiiret that any such decision hail ever talien place, and see the Jud};ment
di'livered liy Harou I'arlvc in Curti'r v. Flmrrr, 16 M. & W. 74;J [and the
jud^rment of Lord (•ainpl)ell, C. .1., In h'lfranl v. \V>il»nii. 1 K. & H. H04 ;
Tttrni-r v. Smnaoti, 2 Q. B. I). 2:1, per Brett. L. J.]

Accordingly it was .settled that the dniwer Is entitled to n<»lice, tlioU};h he
had no effects in tlie tirawee's hands when the bill was drawn or became due,
If he had eU'ects on tlieir way to the drawee, liiirktr v. Ililler, '.\ ("amp. 217;
K; East, 4:5. So it was laid down by Lord Khion In a ca.se of l)ankniptcy,
that, " if a l)iil were accepted /»»r thf nrrinninnilatinn >,/ the ilrntrtr, ami there
were nothing l»ut that l)etween tlietn, notice wouhl not be necessary, the
drawer l)eing, as l)etween him and tlie acceptor, llrst liable: but if l)ills were
tirawn for the arcinninntliitinn »>/ th<- nmptor, the transaction i)eing for his
benefit, tliere must l)e notice without effects; and if. In the result of various
dealings, the surplus of accommodation is on his side, he Is, with regard to
the drawer. In the situation of an acceptor having ettects, and the failure
to give notice may lu' equally detrimental." /•>;<. Ifr<i(/i, 2 Ves. & Bca. 2iO;
2 Rose. 141.

\m\ this rule, thus laid down I)}' Loril Lldon. exti-nded to cases where the
drawer IkuI reason to expect that some third party woulil provide for
tlic payment of the l)ill; thus in Cnri'i/ v. Sri>l(, ;$ B. & A. CA'.K wIhtc the bill
was drawn and accepted for the accommodation of the first indorsee, the
drawer was held to be entitled to notice; and the same point was decided
in Xorton v. rickerinf/, 8 B. vt C (">10. And the sanie rule prevailed though
the persoo expected to provide funds was not a party to the bill, Lajitte v.
Slatter, 6 Bing. (523.

If the drawer had funds in tlie drawee's hands suflicitnt to meet the bill,
even in part, though not wholly, he was entitled to notice, Thnrkeray v.
Blacken, 9 Camp. KU. [But sec Carew v. Durkir„rth, L. R. 4 Ex. 313.] If
the drawer had made a provision to have funils in the ilrawee's hands to meet
the bill, he had a right to notice, though the funds might not have actually
arrived there, liobins v. Gibson, 3 Canjp. 334. And if the drawer had eft'ects
at the time when the bill was drawn, he did not lose his right to notice,
although before the time of payment he might have ceased to have any, Orr
V. Magcnnis, 7 East, 359, or was intlcbtcd to the drawee in a larger sum,
Blackhan v. Daren, 2 Camp. 503.

These ai'e strong cases, especially Orr v. Maijennis, for there the drawer
could, at the time wlieu it fell ilue. have had no reasonable expectation that

BICKEllDIKE V. BOLLMAN. 1281

the bill would be paid, and could have sustained no prejudice from the want
of notice; so that that case may be considered as going the length of
deciding that if, at anj^ time after the bill was issued, the drawer could have
reasonably expected that it would be paid, he had a right to notice. Thus in
Hammond v. Dufrenc, 3 Camp. Uo, it was held unnecessary that the effects
should be in the drawee's hands when the bill was drawn, if they were there
before it became due, [and see Carew v. Duckvjorth, L. R. 4 Ex. 313.]

Although it was said by Mr. J. Bayley. in Glaridge v. Dalton, as above
stated, " that a party who cannot be prejudiced by want of notice, shall not
be entitled to require it," still the application of this dictum must be confined
to the particular description of case then before the court ; for we have seen
that it does not extend to such a case as Orr v. MrKjfnnis. So, too, it is
difficult to conceive how the drawer could be prejudiced by want of notice,
where the drawee had become bankrupt or notoriously insolvent. Yet in
both those cases, he was unquestionably entitled to it. See Bussell v. Lang-
staffe, Dougl. 514, referred to in the text; Esdaile v. Sowerhy, 11 East, 114;
and in Dennis v. Morrice, 3 Esp. 158, Lord Kenyon refused evidence tendered
for the purpose of showing that the drawer was not prejudiced by want of
notice. In fact, to use the words of the Lord C. J. Tindal and Mr. J. Bosan-
quet, in Lafitte v. Slatter, 6 Bing. 627, " Bickerdike v. Bullman is an excepted
case, the principle of which is not to be extended." See also Caunt v.
Thompson, 7 C. B. 409, where it was said by Cresswell, J., delivering the
judgment of the court, " It may be assumed to be a settled rule that knowl-
edge of the probalnlity, however strong, that a bill of exchange will be
dishonoured, cannot operate as a notice of dishonour, or dispense with it,
... so also it may be considered as settled that information that a bill
has been dishonoured, derived from a person not having authority to give it,
does not supply the place of notice. Hence it has become usual to say that
knowledge of the dishonour of a bill is not equivalent to notice." It appears,
however, from the case last cited, that where the drawer was himself the
party to pay the bill (for instance Avhere he was the executor of the acceptor)
his knowledge that the bill liad been presented to him, and was unpaid, was
equivalent to notice.

[In re Leeds Banking Co. Ex parte Prange, L. R. 1 Eq. 1, it was held that
an indorsement payable " in need" at a particular bank, did not render the
bank notified the agents of the indorsers to receive notice of dishonour, and
that therefore, although the drawer and acceptor had become bankrupt be-
fore the bill became due, notice to the bank was not notice to the indorsers,
nor could presentment for payment even to the indorser himself, operate per
SI' as notice of dishonour by the acceptor.]

It seems, however, from the expressions of the court in the case of Fitz-
gerald V. Williams, G Bing. N. C. 68, that in pleading the want of notice [was]
prima facie sufliciently excused by showing that there were no funds in the
drawee's hands ; and it was decided there, that where the declaration averred
that there were no funds in the drawee's hands, nor any consideration for the
acceptance, and that the defendant sustained no damage from the w\ant of
notice, it lay upon the defendant to prove the damage if any resulted.

But the circumstances which would amount to a sufficient excuse for want
of notice as against the drawer, did not always excuse want of notice to an
indorser. Where an action was brought by the indorsee of a promissory note
against the indorser, to whom it had been indorsed by the payee, the declara-
tion alleged, that neither at the time the note was made, nor afterwards and

l:i«:i BICKKUDIKK V. IJMIJ.MAN.

before It became due, nor when It became due and on presentment for pay-
ment, liad thr niakcr or payee any elTects of tlie defemlant in hh lisndM, nor
was there any consideration or value fur tlie making of tlie note, of the pny-
nieiit tliereof, or its indorsement l)y the payee to tlie defendant, ami that the
defeMdaiit iiad not sustained any damage l)y reason of his not ha\in^ had no-
tice of tlie lion -piiynient of the note; It was held that as against nn imltirurr,
the declaration tlid not state a snillcient excuse of want of notice of iIIh-
honour, as it was cimsiHtent with the avernieiits in the declaration, that the
note nii:;lit have been indorsed by the defendant for the acconinuHlation of a
prior party, in wliich case the defendant wonhl Ih> entitled to notice of tlLs-
hfinour, f'urdr v. Flinnr, W, M. & W . 743; [accordinirly in Turnt-r v. SotnpiiDn,
•_' (^ H- I). -':»; 4t; L. J. Q. H. u;7, where as between all the parties to an ac-
commodation bill the intention was lliat the last Indorser shoidd pay it. it
was lield in an action a:;aiiist a prior indorser that he was entitled to notice
«d' dishonour; and see F-islir v. I'ltikt^r, 2 ('. 1*. D. |H; 4»> L. .1. ('. I*. 77. J
Wliere no notice had been iriven nt mnj timf, the excuse must have lu-en set
out on the record; If It had l»een ^iven. but at a time whleh woidd be too Inte
in the usual course, the matter of excuse nd;;ht probalily have been used to
show that It was, under the circumstances. In reasonable time; JuiUjmfnt,
Cnrtfr v. t'lmrcr, iil>i .iiip. See where the Indorser was hehl not to Ik* entitled
ti> notice, Ciirutij v. MnnlfZ dn Cuntu, 1 Ksp. ,'102, and, as to what excuses
were sulllcieiit in the analot;ous case of presentment for payujcut. see Sumln
v. ('l>trk\ H (". B, 7.'»1. [linnk i>f \'iin IHrmi-n'n Land v. llttik i>f Virtnria, L.
K. •^ V. (\.Vi<!; C/firt'i-rd, i(v., ll'tnk v. DirkHnu, \.. U. :; I*. C. .'.74; ami s. 4»i
of tlie recent statute, /"».«i/.

Ill tlie earlier cases, notices of dishonour were strictly ••onstnn-d by the
courts, and were often held to l)c Insuttlclent upon very technical ;irounds.
The disposition of the courts. In the later tieclslons, wa.s to construe these
notices more lil)crally; and l)efore the Bills of Kxchanire Act, 1SH2, it had
been estal)lislied that, aitliouurli the notice must intimate that the bill had
been presented and dishonoured, it was not nec«'ssiiry that the person to whon>
it was addressed should lie infornu-d. in t«'rms. that the holder looked to him
for payuu'ut. See Fiirzf v. S/titriroud, 2 i^. li.liHH; S/nltmt v. liniit/iiniitf, 7
M. & W. 4:?t; ; Mi,rii v. Rnnrn, 11 M. & W. 372; /intrhntils v. Sprnn/i'tt, 14 M.
& W. 7; r/iard v. F<>.r. 14 Q. B. 2(X1; Mrlbrxh v. liippiu, 7 Kxch. ">78 ; Met-
calfe V. /iichai-d.siin, 11 ('. B. 1011; and Paul v. .AW, 4 II. & X. 35.'); Viall v.
Michael, Q. B. 30 L. T. 433. Ex partf Loicenthal, L. U. 9 C. II. 591. As to
wliat was reasonable diligence in giving notice of dishonour, sec flladicell v.
Turner, I.. K. ."> Kx. .j9 ; Berridije v. Fitzijerald, L. U. 4 g. B. t;39. In re Leeds
Biinkinij Co., L. R. 1 Eq. 1 ; Prideaux v. Criddle, L. U. 4 Q. B. 4.'».'. : Iletjienod
V. Pirkeriiif/, L. R. 9 Q. B. 428; notice of dishonour to the drawer himself
ini^lit 1)0 sullicicnt notwithstanding that he had been bankrupt and a trustee
liad been apiJointed. ex parte liaker, 4 Ch. I). 79."); 4(3 L. J. Bkcy. CO.

A subsequent promise to pay made Ijy an indorser of a bill who has had no
notice of dishonour, was evidence of a waiver of the right to notice. See
Woods v. Dean, 3 B. & S. 101 ; C'ordertj v. C'drille, 32 L. J. C. P. 210.

It may here be noticed that by some foreign laws, notice of dishonour is
given thi'ough an offlcial channel, and so that the receipt of it by an indorser
residing out of the country may be matter of courtesy or chance. It had
been held that the drawer or indorser in England of a bill directed to a per-
son residing in such foreign country, is only entitled to the notice which its
law prescribes; a proposition which, though, perhaps, not sustainable upon

BICKERDIKE V. BOLLMAN. 1283

the grounds on which it was rested in Rothschild v. Currie, 1 Q. B. 43, will be
found, it is submitted, upon examination, to have reason as well as conven-
ience in its favour (see Hirsdijield v. Smith, L. R. 1 C. P. 340; 35 L. J. C. P.
177). It had been afterwards approved and adopted in the Court of Appeal
in Home v. Ronquette, 3 Q. B. D. 514, where, though the court questioned the
reasoning of Rothschild v. Currie, they adopted the decision. Home v. Rou-
quette indeed went one step further, for the court unanimously regarded as
immaterial the fact that the bill there sued on was a foreign bill, and held
that the rights of an indorser in England to notice of dishonour might be
modified by the fact that the bill had been subsequentlj' indorsed in a country
where notice of dishonour was not necessary. In that case the plaintiff had
indorsed the bill in Spain, where it would seem that notice of dishonour by
non-acceptance is not necessarj^ and had himself consequently become liable
upon it although he did not receive notice until long after the bill had been
dishonoured.

On receiving notice of dishonour he, however, immediately passed it on to
the defendant from whom he had taken the bill by indorsement in England.
It was held that the defendant was liable. Cotton, L. J., indeed pointed out
that the case did not decide that the plaintiff who took by indorsement in
England could have recovered against the defendant had he delayed in pass-
ing on the notice of dishonour. It is submitted, however, that as in Hirsch-
field V. Smith, so in the case supposed, the real question would be, what was
reasonable notice to give under the circumstances, and as any notice would
have ))een practically nugatory after the delay which had already taken place,
a plaintiff's right could hardly be defeated by any additional delay beyond
that which is under ordinary circumstances permissible by English law. See
further Roiiquette v. Orerman, L. R. 10 Q. B. 525, and the Notes to Mostijn v.
Fabrigas, ante. Vol, I. The same principle explains what at first sight
appears anomalous, viz., that a person having certain rights under a contract
made in this country should find those rights modified by matter subsequent
which has taken place in a foreign country. For since the right of an in-
dorser in England is to receive reasonable notice of dishonour, and since
any person who indorses a negotiable instrument must be taken to know that
it may circulate outside this country, reasonable notice may well be held to
be such notice as having regard to the various places where the bill has cir-
culated it has been possible for the party suing to give. See also per Wills,
J., Lee v. Abdy, 17 Q. B. D. p. 314.

The sections of the Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61),
which deal with the subject of this note are as follows : —

Sec. 97 enacts that,

1. The rules in bankrivptcy relating to bills of exchange, promissory

notes, and cheques, shall continue to apply thereto notwithstand-
ing anything in this Act contained.

2. The rules of common law, including the law merchant save in so

far as they are inconsistent with the express provisions of this Act
shall continue to apply to bills of exchange, promissory notes, and
cheques.
Sec. 47, sub-sec. 2. Subject to the provisious of this Act when a bill is dis-
honoured by non-payment, an immediate right of recourse against the
drawers and indorsers accrues to the holder.

Sec. 48. Subject to the provisions of this Act, when a bill has been dis-
honoured by non-acceptance or by non-payment, notice of dishonour must be

l'2H4 i:ifKi:iti>iKi; v. isollman.

•jivon to the drftwor ftiul each iii(li>rf.t'r, arid any drawi-r <»r imiorscr to whom
siicli iiotict' is not ;;ivt'ii is discliari^i-d ;

Provided tliut (1) Wlierr a i)ill is dishonourL-d l»y n<»n-arc«'|»tanco, and
notice of dislioniiiir Is not >?lvcn, the rlj^jlits of a iioUler in ilue course subsK!-
(juent to the omission, shall not be prejudiced by the omission. (2) Where
a bill is dishonoured by non-acceptance, and due notice of dishonour Is tjiven,
it sliall not be necessary to <i\\v notice of a subse<|Uent dislionour by non-
payment unless the bill shall in the meantime have been accepted.

Sec. 4'.». Notice of ilisiionour in order to be valid antl elfectnal must be
given in accordance with the following rules: —

1. The notice must be givrii by or on behalf of the holder or by or on

behalf of an nulorser, who, at the time of ijivins; it is himself liable
on the bill.

2. Notice of dishonour m;iy be i;iv«-n by an a;jent either in his own name

or in the name of any |)arty eutith-d to nivi- notice, whether that
party be his priuci|>al or not.

3. Where the notice is given by or on behalf of tlie hohler. it enures for

the benellt of all siibsecpient holders ami all prior indorsers who
have a right of recourse against the party to wliom it is given.

4. Where notice is given by or on l)ehalf of an iudorst-r entitled to give

notice as hereinlu-fore provided, it enures for the benefit of tlic
holder and all indorsers subsequent to the party to whom notice Is
given.

5. The notice may be given In writing or by personal ciunmunic.itlitn, and

may be given in any terms which sutlhiently identify the l>ill and
intimate that the bill has been dishonouretl by non-acceptance or
noii-i)ayment.
G. The return of a dishonouretl bill to the drawer or an indorser is, in
point of form, deemed a sullicient notice of dishonour.

7. A written notice need not be signed, and an jnsutllcient written notice

may be supplemented and validated by verbal communication. A
misdescription of the bill shall not vitiate the notice unless the party
to whom the notice is given is in the fact misled thereby.

8. Where notice of dishonour is reipiired to be given to any person, it may

be given either to the party himself, or to his agent in that behalf.

9. Where the drawer or indorser is dead and the party giving notice

kuows it, the notice must be given to a persf)nal representative if
such there be, and with the exercise of reasonable diligence he can
be found.

10. Where the drawer or indorser is bankrupt, notice nuiy be given either

to the party himself or to the trustee.

11. Where there are two or more drawers or indorsers who are not part-

ners, notice must be given to each of them, unless one of them has
authority to receive such notice for the others.

12. The notice may be given as soon as the bill is dishonoured, and must

be given Avitliin a reasonable time thereafter.

In the absence of special circumstances notice is not deemed to
have been given within a reasonable time unless : —

(a) Where the person giving and the person to receive notice
reside in the same place, the notice is given or sent off in
time to reach the latter on the day after the dishonour of
the bill.

BICKEKDIKE V. BOLLMAN. 1285

(6) Where the person giving and the person to receive notice
reside in dift'erent places, the notice is sent oflT on the day
after the dishonour of the bill, if there be a post at a con-
venient hour on that day, and if there be no such post on
that day then l)y the next post thereafter.

13. Where a bill when dishonoured is in the hands of an agent, he may
either himself give notice to the parties liable on the bill, or he may
give notice to his principal. If he give notice to his principal he
must do so within the same time as if he were the holder, and the
principal .upon receipt of such notice has himself the same time for
giving notice as if the agent had been an independent holder.

14. Where a party to a bill receives due notice of dishonour, he has after

the receipt of such notice the same period of time for giving no-
tice to antecedent parties that the holder has after the dishonour.

15. Where a notice of dishonour is duly addressed and posted, the sender

is deemed to have given due notice of dishonour, notwithstanding
any miscarriage by the post office.
Sec. 50. 1. Delay in giving notice of dishonour is excused where the delay
is caused by circumstances beyond the control of the party giving notice, and
not imputal)le to his default, misconduct, or negligence. When the cause of
delay ceases to operate the notice must be given with reasonable diligence.
2. Notice of dishonour is dispensed with —

(a) When after the exercise of reasona1)le diligence notice as required
by this Act cannot be given to or does not reach the drawer or
iudorser sought to be charged :

(b) By waiver express or implied. Notice of dishonour may be waived
before the time of giving notice has arrived or after the omission to
give due notice :

(c) As regards the drawer in the following cases, namely, (1) where the
drawer and drawee are the same person; (2) where the drawee is
a fictitious person, or a person not having capacity to contract;
(3) where the drawer is the person to whom the bill is presented
for payment ; (-1) where the drawee or acceptor is as between him-
self and the drawer under no obligation to accept or pay the bill ;
(5) where the drawer has countermanded payment :

(d) As regards the iudorser in the following cases, namely, (1) where the
drawee is a fictitious person or a person not having capacity to con-
tract, and the indorser was aware of the fact at the time he indorsed
the bill; (2) where the indorser is the person to whom the bill is
presented for payment ; (3) where the bill was accepted or made for
his accommodation.

Sec. 72. Where a bill drawn in one country is negotiated, accepted, or pay-
able in another, the rights and duties, and liabilities of the parties thereto are
determined as follows : —

1. The validity of a bill as regards requisites in form is determined by
the law of the place of issue, and the validity as regards requisites
in form of the supervening contracts, such as acceptance, or
indorsement, or acceptance supra protest is determined by the law
of the place where such contract was made.
Provided that —

(6) Where a bill issued out of the United Kingdom conforms
as regards requisites in form, to the law of the United

ll*8G mCKKUDIKK V. m»LL.MAN.

Kiiinil'iiti, it may, for tlu* puri>o-,«' of t-nfort-luK payment
lIuTi-of, Ik> tn-utfil a.s vullil as Im-Iwitij all p«T>uiis wlio
iifi;<)tiatf, lioUl, or hocomt- parties to it In tliu I'nltctl
Kinyiloni. (Sff lif M'lrnfUl'-s d'r. Co., M Ch. I). 5'JM ; 66
L. J. I'll, in;, aca.se ileclilf«l upon bills drawn In-forf tin-
statute.)
2. Subject to the provisions of this Act, the Interpretation of the tlratv-
In;;, Intlorsement, acceptance, or acceptance »>n>rn protest of a hill,
is tielermlneii by the law of the place where such contract Is moile.
Provided that where an inland l>ill is indorsed in a foreign
country, the indorsement shall, as regards the payer be interpreteil
accoriliiii; to the law of the I'nlted Klni;doni
;J. The duties of the liuUler w ith respect to presentment for accceptance
or payment, and the necessity for or sullh-lency of a protest or
notice (»f illshonour, or otherwise, are detennined by the law of
the ploce where the act Is done, or the bill Is dlshonoureil.
5. Where a bill Is drawn In one country and Is payable In another, the
due dale thereof Is detemdned according to the law of the place
where it Is payable.]

Omu ot the ino.st t'liMily .scttltMl rules of all the law, i.s that
lU'itlior the drawer nor the in(lors«'r of a hill of exrhaiipe .shall
lu' liahle thereon unless the holder shall at the proper time pre-
sent the same foi- aeeeptanee or payment, and, in ease of refusal,
shall at once i^ive to the drawer and indurser notice of .such
dishonor, i»r at least use rcasoiiahlc diliLjenee to ilu so. 'I'his
has loner j)ei>n the recoLTni/.cd law in ICn^land and it has In'en
fully accc|)te(l in the I'nitcd States: Muck >\ Cotton, 2 Conn,
lii*!; liciry ''. l{ol)ins(»n, *• .Johns. IJl ; Mi Kinney v. Crawford,
8 S. cV K. :{.')1, :\'u. Tlu" contract of the drawer or indorser is
only to be secondarily liable, and their responsibility is in)t
absolute but conditional on their receiving due notice of the
dishonor. The apparent exception.s to the rule are simply the
ones which prove it. They can all Ikj easily distinguished and
a good reason is found for their existence ; this reason is one
wliich in the law always creates an exception to general rules,
viz., fraud. In some form or other, the element of fraud is
foinid in all cases where the stringency of the general rule
seems to have been relaxed.

Many modifications of the general rule, laid down in this
leading English case, have been made in this country, and
many refinements have been gone into, but in the end we come
back to the first proposition, viz., that fraud in some form or

BICKERDIKE V. BOLLMAN. 1287

other must be present to permit a departure from the strict
rule.

It may safely be said that the drawer and indorser must
always have notice before any liability on their part arises ;
they must have notice that the bill has not been accepted or
paid at maturity. Notice is imperative, and in all cases except
where fraud intervenes, the payee must make reasonably active
efforts to advise the one secondarily liable so that he can take
such steps as may be necessary for his own protection ; but
where fraud does intervene, the fraud is itself notice. If the
Ijill is drawn with a full consciousness on the part of the drawer
that there are no funds in the hands of the drawee, the drawer
must know that he has no reason to expect anything except
dishonor, and from the very moment of drawing the bill he has
the fullest possible notice of the dishonor. Chief Justice ]Mar-
shall extends the doctrine beyond the narrow limits of the
English case by saying that although no funds were actually in
the hands of the drawee when the draft was made, yet, if by
previous arrangement the drawer had good reason to expect
that funds Avould be provided to meet the bill, he would be free
from the charge of fraud, and would be entitled to the custom-
ary notice ; French v. Bank of Columbia, 4 Cr. 141. For
cases establishing fraud as the distinguishing mark, see Stanton
V. Blossom, 14 Mass. 116 ; Grosvenor v. Stone, 8 Pick. 79 ; Kins-
ley V. Robinson, 21 Id. 327 ; DoUfus v. Frosch, 1 Denio 367 ;
Van Wart v. Smith, 1 Wend. 219, 227 ; Robinson v. Ames, 20
Johns. 146, 150 ; Hoffman v. Smith, 1 Cai. 157 ; Mobley v.
Clark, 28 Barb. 390 ; Cathell v. Goodwin, 1 Harr. & Gill 468 ;
Hill V. Norris, 2 Stew & P. 114 ; Yongue v. Ruff, 3 Strob. 311,
313 ; Bloodgood v. Hawthorn, 14 La. 124 ; Oliver v. Bank, 11
Humph. 74; Wollenweber v. Ketterlinus, 17 Pa. St. 399; Hop-
kirk V. Page, 2 Brock. 20 ; Dickins v. Beale, 10 Peters 572 ;
Brower v. Rupert, 24 111. 182 ; Howes v. Austin, 35 Id. 396 ;
Wood V. Price, 46 Id. 435 ; Welch v. B. C. Manuf. Co., 82 Id.
579.

If he had no funds at time of drawing, and he knew that
fact, he is not entitled to notice. See Ford v. McClung, 5 W.
Va. 156 ; Spear v. Atkinson, 1 Ired. 262 ; Denny v. Palmer, 5
Id. 610 ; Cedar Falls v. Wallace, 83 N. C. 225 ; Dunbar v.
Tyler, 44 Miss. 1 ; Richie v. McCoy, 13 Sm. & Mar. 541 ; Mehl-
berg V. Tisher, 24 Wis. 607 ; Pitts v. Jones, 9 Fla. 519 ; Shaffer

\'2HS IJICKKUDIKK V. I«)LL.MAN.

V. Miuldox, 9 Neb. 20.'); Aimemliaz v. Senia, 40 Tex. 202;
McRae r. Rhodes, 22 Ark. 31;'); Sullivan r. Deadinaii, 2:{ Id.
14; Rank v. Easlev, 44 Mo. 280; Mislt r. Trovingcr, 7 Ohio
St. 2S1.

At first siglit it seems ;is thon<,di fraud must he presumed
from tlu" fai't of drawing against *• no funds " and sonit* case.s
have gone on that theory; Fotheringham v. Rrico, 1 Ray 2'.tl ;
Rakc-r /-. (;allaght'r, 1 Wash. V. ('. 401 ; Read r. Wilkinson, 2
Id. r)14; Diikins r. Real, lO l*eter.s .'u'l. Rut sonuthing more
is really nee<led : there must be circumstanees or an absenee of
eireumstanees which shall elearly indicate fraud on the part of
tlie drawer before he can be charged with notice and dcjirived
ol his customary i»rivilege; ("luger >'. Armstrong, ;> Johns.
Cas. ') : I'^ranklin /•. \'anderi>«>til, 1 JLill ~H. See further:
Curry c. Ileilong, 11 La. An. Ool: Anderson v. Folger, 11 Id.
20'.>; (loiladay r. Rank, 2 Head •>! ; Miser <'. Trovinger, 7 ( )hio
St. 2S1 ; Wo.mI r. .M( M.ans, 2:^ Tex. 4H4.

Tli;it the holder may avail himsidf of the exception to the
rule he must show allirmatively that there were no finnls
when the bill was ilrawn, and have been none up to the time of
maturity; (iolladay v. Rank, 2 Head .")7 ; and to show this lie
must have more than simply a statement by drawee that the
bill ought not to have been drawn, for in such case the drawee is
not the agent of the drawer; Carh' r. White, 9 Greenl. 104. In
case the bill has been accepted, and then not paid at maturity,
the burden is strongly on the holder to show "no fumls," for
presumably the drawer rightfully expected funds ; Richie v.
McCoy, 13 Sm. & Mar. 541; Ihnibar v. Tyler, 44 Miss. 1.
Strictly the exception is confined to bills of change not accepted ;
in the case of notes we may have an analogous case, where a
payee, knowing that there was no conmleration for tlie note,
indorses it over, in such case the indorser will not be entitled
to notice ; Gee v. Williamson, 1 Porter, Ala. 313. Rut usually
it does not apply to a bill of exchange accepted, nor to a prom-
issory note, — if the maker of a promissory note be insolvent
the bolder must still give notice to the indorser ; Pons's Exec.
V. Kelly, 2 Hay. (N. C.) 45. In all the cases where notice has
been dispensed with we shall find the true reason to be fraud
in one form or another. It is not absolutely necessary to con-
stitute a fraud that the bill be drawn against " no funds."" It is
suflficient if through any fraudulent act of the drawer the bill

BICKEEDIKE V. BOLLMAN. 1289

is presented against no funds. At the time of drawing the
bill the funds may be in the hands of the drawee or reasonably
on their way there, and at that moment the draAver may have
no fraudulent intent whatever, but if he does any act in the
interval before presentment, by which the funds are prevented
from meeting the obligation, he is at that very moment charged
with notice, for he must know of the certain dishonor which
awaits the bill ; Valk v. Simmons, 4 Mas. 113 ; Eichelberger v.
Finley, 7 Harr. & J. 381 ; Harker v. Anderson, 21 Wend. 372 ;
Sutcliffe V. McDowell, 2 Nott & McC. 251 ; Lilley v. Miller, Id.
257. Where the check or draft is drawn against funds in good
faith, and later, through the carelessness or mistake of the
drawer, they are withdrawn or applied to other uses, the cases
seem to hold that if the drawer acted in good faith he is en-
titled to notice. It would seem hard to accuse him of fraud in
such a case, but it would seem that another principle should
apply and one more exception be grafted on the law, for where
one of two equally innocent persons must suffer, the loss should
fall on the one who made the mistake ; but the cases do not go
so far. It must appear, it seems, that the cbawer hnew that
there would l)e no effects in order that notice to him may be
dispensed with ; Edwards v. Moses, 2 Nott & McC. 433 ; Orear
V. McDonald, 9 Gill 350. Another exception to the general
rule is where accommodation paper is involved ; this, like fraud,
always creates an exception. It is drawn for the benefit of
the drawer, and he agrees to take it up. He is in this case
primarily and not secondarily liable, and he has no claim to
notice ; he is required to see that it is paid when due, and must
know of any default. This doctrine is supported by the follow-
ing decisions : Hoffman v. Smith, 1 Cai. 157 ; Reid v. Morrison,
2 W. & S. 401 ; Evans v. Norris, 1 Ala. 511 ; and by dicta in
the following cases : French v. Bank, 4 Cra. 160 ; Agan v.
M'Manus, 11 Johns. 180; Holland v. Turner, 10 Conn. 308.
So, too, in case of a draft indorsed for accommodation of drawer,
with the knowledge of the indorser, where there was no ex-
pectation that the bill would be paid by the drawee, the in-
dorser is not entitled to notice ; Farmers' Bank v. Vanmeter,
4 Rand. 553. Nor is an indorser for whose accommodation the
maker signed the note ; Bank v. Ryerson, 23 la. 508 ; Holman
V. Whiting, 19 Ala. 703. But the acceptor cannot require
notice of a demand on drawer and a refusal, even though he

12!>0 iU(Ki;i;i)iKK v. ijoll.man.

aici'ptcil tor the accommodation of the ilr.iwer ; Cox r. Rank,
•JH (ia. ft'2*.K Nor can an indorscr rcijnirc notice where the
maker is not liahh' to a hoiui fiile indorsee before maturity and
foi value: I'erkins v. White, 3t> Ohio St. oIJU. Nor can one
who is really a maker, altliouijh he si^netl apparently as an
indoiser ; Raymond v. McNeal, 'M\ Kan. 471. Hut an imhu-ser
on an accomnuxhition not*-, nuide for the lx,'nefit of the maker,
as also the drawer of an accommodation \n\\, is entitled to
notice; lio^^'y r. Keil, 1 Mo. 74:5; Denny v. I'alnicr, ") Ired. tJlO;
Shcrrod /•. Kliodfs, .'> Ala. >>s:{.

A third form in which the fraud may show itsidf is where
the hill is rejj^ularly drawn, hut later the drawer (jr indorser
agrees to take care of it, thus assuming; a primary liability. In
such case of coui-se he is nt)t entitled to notice ; Hond r. Farn-
ham, 'j Mass. 170. An attempt luus l)een made to tix /mmtihft-
injur// to the drawer or indorsi-r as the distin^^uishin*; mark, hut
that it'ally leaves it as lx;f«)re, for in contemplation of law, want
of notice may always woik injury, and it is by no nuans a case
i)( (iiitnnmn dfixifiir injtiriir ; liank r. Iluj^hes, 17 Wend. *J4. In
the case of a ifii(iriiiit'>r tlu- aujount of po.ssible, or, rather, actual
injury, which has come to him from lack of notice, is sometimes
allowed to he shown: liiackett v. Rich, 23 Minn. 48'); Newton
{'. Dicrs, 10 Neb. 2S4 ; althoui^h it is usually held that a guar-
antor has no idaim to notice, his liability not l)eing conditional
on that. The notice must l)e actual, or at least a reasonable
endeavor uuist be made by the holder to j^ive the notice.
There is no such thinj^ as constructive notice. Even well-known
insolvency or bankruptcy of the drawee is not sulVicient notice ;
sonu'thiiio- further must be shown. The rule has become arbi-
trarily lixcd, and it makes no ditTerence that as a matter of fact
the drawer or indorser wouM have been in no better })osition
had he been notilied. The holder neglects to give notice at his
peril.

And if funds were in the hands of the drawer, the drawee
will be entitled to notice even if he did actually know of the
insolvency ; Cedar Falls v. Wallace, 83 N. C. 225. So, too, the
insolvency of drawer or maker does not excuse not giving
notice ; Myers v. Coleman Anth. N. P. (N. Y.) 205 ; Bank v.
Connoway, 4 Houst. (Del.) 206. The fraud has the effect of
depriving only the one perpetrating it of notice ; a fraud by a
drawee would not affect a botid fide indorser nor vice versa. If

BICKERDIKE V. BOLLMAN. 1291

one indorser commit a fraud this must not affect another in-
dorser in good faith. Fraud does not reach beyond the person ;
Bank v. Vanmeter, 4 Rand. 553 ; see also Fen wick v. Sears, 1
Cr. 259.

The exception in regard to accommodation paper does not
act to deprive a hoyid fide indorser of his right to notice. He
is as much entitled as though it were not accommodation paper ;
his position in each case is the same ; he is only secondarily
liable, and no circumstance except fraud on his part can make
him anything else ; French v. The Bank, 4 Cr. Ill ; Jackson
V. Richards, 2 Cai. 343; Smith v. M'Lean, Taylor, N.C. 72;
Richter v. Selin, 8 S. & R. 439 ; Holland v. Turner, 10 Conn.
308.

In the case of a l^ill drawn for the accommodation of the
acceptor, the drawer occupies the same relative position. Under
no circumstances is he primarily liable ; hence he must have
notice ; Shirley v. Fellows, 9 Port. 300. Where the whole
transaction is within a firm, i.e.^ when the drawer is a member
of the firm on which the bill is drawn, or vice versa., the law
implies that the knowledge of one is knowledge of all, and no
formal notice need be given. In this case the law seems to
accept the doctrine of constructive notice. If the firm shall fail
to pay it is assumed that each individual partner, the drawer,
etc., must have known of the fact of insolvency at once, and he
could not take any step to protect himself, his individual liabil-
ity remaining over and above what the firm could pay ; Fuller
V. Hooper, 3 Gray 334; Gowan v. Jackson, 20 Johns. 176;
Porthouse v. Parker, 1 Camp. 82 ; New York Co. v. Meyer, 51
Ala. 325. If it be ivliolly within the firm the rule holds ; Hill
V. Bank, 3 Humph. 670. But if the transaction is between two
firms consisting partly of the same members, the rule does not
hold good and notice must be given ; Dwight v. Scovil, 2 Conn.
654. See contra., New York Co. v. Selma Bank, 51 Ala. 305.
Where the transaction is by the partners in their individual
capacity, one as drawer, the other as indorser, notice is neces-
sary ; Morris v. Husson, 4 Sandf. 93 ; Poland v. Boyd, 23 Pa. St.
476.

The same rule does not apply to joint drawers or indorsers as
to partners. Notice must be given to each to charge him ; Sayre
v. Prick, 7 W. & S. 383; Miser v. Trovinger, 7 Ohio St. 281;
and W'illis v. Green, 5 Hill 232, goes so far as to say that all

llil'J HK KKKDIKK V. IJOLLMAN.

must have notice in oriUr lliiil iiiiy of tliein may l)e liable, and
in ease one be dead notice must l)e t^iven t.i liis t-state. St-e on
this point, also, I'eople's Hank v. Keeeh, '2*> Md, ')21, and Dabney
t'. Stidj^'er, 4 Sm. *S: Mar. 74!*, which case also hohls that notice
to tiie surviving' partner is notice to the firm and sullicient to
Imld the estate of <leeeased. See c»nfni, Dod^'f v. hank, 2 A. K.
Maish. tllii ; liiM;uriiis r. Morrison, \ i);iii;i loo. It is doubtful
wht'liier notice to one of two or more executors is notice to all;
(iiyu<;a('o. liank r. Uennett, o Mill 'I'M. This ciise decides
that one executor has not power to waive notice, etc., so ns
to bind his executors. The whole tendency of the law seems to
be to restrict the powers of one executor aitini^ witliout his co-
executors.

'I'he sanu' princijile whiih applies in cjwe of a partner drawing
on his firm applies when the same party ap[)ears in the transac-
tion in a dual capacity, whether it \k' as maker and indoi-scr or
as drawer and acceptor; Au;;hinbau^h c. J{ol)erts, 4 W. N. C.
( Pa.) ISl ; Smith r. Paul, <S Porter r>(i:J.

When a strani,'cr writes his name on the. back of the bill or
note, he makes himself prima t'ltrie a joint maker and is not
entitled to notice; liaker v. Block, ^50 Mo. -2"); see Richards v.
Warring, 31> Harb. o o ; Ma.ssey v. Turner, 2 lloust. (Del.) 79;
Worcester Hank v. Lock-Stitch Fence Co., 24 Fed. Kei). 221.

A guarantor or surety, although not primarily liable, is not
entitled to notice: the only condition imposed on liis liability is
that the one primarily liable .shall fail to pay, then his liability
arises; Allen r. Ivightmere, 20 Johns. 305; Matthewson v.
Sprague, 1 K. 1. S; Clark v. Merriam, 2o Conn. 570 ; Scott v.
Shirk, t;o Ind. 100.

One case is contra and tries to make out that the guarantor
is entitled to notice, except in the case of the insolvency of the
original promisor; lirooks v. Morgan, 1 Harr, (Del.) 123. This
case cannot be supported on principle. The whole theory of
the exception is admirably summed up in these few words :
" It is a maxim that no man shall take advantage of his own
wrong;" Fotheringham v. Price, 1 Ha}- 291, 293. The fraud
may be perpetrated by indorsing a bill or note which is tainted
with usury, for in tliis way it is caused to be " presented against
no funds." In such case nothing is transferred by the indorse-
ment, the contract being void ab initio; Copp v. M'Dugall, 9
Mass. 1. The cases differ as to what is a sufficient allegation
in the pleadings to permit proof of -no f untls " as "notice."

BICKEEDIKE V. BOLLMAN. 1293

In Frazier v. Harvie, 2 Litt. 180, both allegations were made,
and there is a dictum that " no funds " was a necessary allega-
tion. The following case points the same way ; Hill v. Varrell,
3 Greenl. 233, 236.

The opposite view is taken in the following cases : Shirley v.
Fellows, 9 Port. 300 ; Camp v. Bates, 11 Conn. 487, 493 ; Pat-
ton V. McFarlane, 3 P. & W. 419, 425; Spann v. Baltzell, 1 Fla.
301, 326 ; and it is held that an allegation of " notice " may be sup-
ported by any evidence which shows notice, — fraud, of course,
being treated as notice, or any excuse for not giving notice. Of
course the drawer or indorser may waive his privilege of notice ;
but in doing this it must clearly appear that he did so intention-
ally, with full knowledge of his rights ; or else it must appear
that he is estopped to deny full knowledge by having by his act
put the holder in a worse position than he would otherwise have
occupied, by making him believe a waiver was intended ; Bruce
V. Lytle, 13 Barb. 163 ; Trimble v. Thorne, 16 Johns. 152 ; Teb-
betts V. Dowd, 23 Wend. 379 ; Bank v. Dill, 5 Hill 403 ; Bank
V. Ashworth, 105 Mass. 503; Hopkins v. Liswell, 12 Mass. 52;
Creamer v. Perry, 17 Pick. 332; Gove v. Vining, 7 Mete. 212;
Whitaker v. Morrison, 1 Fla. 25, 32 ; Schmidt v. Radcliffe, 4
Strob. 296 ; Bank v. Wray, 4 Id. 87 ; Robbins v. Pinckard, 5 S. &
M. 51; Merrimack Co. Bank v. Brown, 12 N. H. 320, 325 ;
Norris v. Ward, 59 Id. 487 ; Bank v. Leathers, 10 B. Mon. 64,
m ; Moyer's Appeal, 87 Pa. St. 129 ; Tobey v. Berly, 26 111. 426 ;
Tardy v. Boyd, 26 Gratt. 631 ; Johnson v. Arrigoni, 5 Oregon
485 ; Matthey v. Gaily, 4 Cal. 62 ; Harvey v. Troupe, 23 Miss.
538 ; Allen v. Harrah, 30 la. 363 ; Ballin v. Betcke, 11 Id. 204
Campbell v. Varney, 12 Id. 43 ; Freeman v, O'Brien, 38 Id. 406
Mense v. Osbern, 5 Mo. 544 ; Dorsey v. Watson, 14 Id. 59
Clayton v. Phipps, 14 Id. 399 ; Salisbury v. Renick, 44 Id. 554
Wilson V. Huston, 13 Id. 146 ; Bogart v. McClung, 11 Heisk
105 ; Fell v. Dial, 14 S. Car. 247 ; Ford v. Dallam, 3 Cold. 67
GoUaday v. Bank, 2 Head 57 ; Power v. Mitchell, 7 Wis. 161

A waiver must be made with full knowledge of all the facts
but this will be presumed from a promise to pay. This pre-
sumption must then be rebutted by the promisor ; Low v. How-
ard, 10 Cush. 159 ; Tower v. Durell, 9 Mass. 332 ; Myers v.
Coleman, Anth. N. P. (N. Y.) 205; Kennon v. M'Rea, 7 Port.
175 ; and even though the money has been paid, if under a mis-
take it may be recovered back ; Offit v. Vick, Walker (Miss.)

12'J4 IJUKKUblKl': V. noLLMAN.

99. Hut this apjjlies only to a mistake of fact. Every man is
pri'sunicd to know the l;i\v, un<l if ii man lias simply erieil fi(»m
ignoianic of llit; law he will not l>e piutectod ; (ii'shire i'. Taylor,
29 la. 492; Ilughes v. liowen, lo I.l. Mf, ; I{;ii,k r. Asliwoith,
105 Mass. 50:5; but .see contra; Williams /•. iJaiik, 9 IIeisk.441.
The autlioiitit's are not a<;ivtMl as to what constitutes a waiver;
partial payment certainly does ; for other acts it is necessary
to go to the cases. For acts constituting waiver, see Knapp r.
Kunals, :57 Wis. 1:55; Sherer r. Hank, :W I'a. St. 1:54; Hihl. r.
Peyton, 11 Sm. v\: .Mar. 275; Tnion Hank v. (iovan, 10 Id. ;{:ja ;
Staylor v. Hall, 21 Md. is:^; Mo(»re v. Tate, 1 King's Dig.
(Tenn.) 200; Minlurn r. Fisher, 7 Cal. 57:i ; Leonard v. Hast-
ings, 9 Id. 2:50; Tratte i\ McCall, 1 .M(.. :55 ; Airey r. Pearson,
'M Id. 121 ; Harness r. Savings Ass., 4t'» Id. ;)57 ; Tiiilcr r. Miir-
jtliy Furnishing (ioods Co., 24 Mo. Ap. 420; Andrews r. Hoyd,
'6 Met. 4:34; Hoyd r. Cleveland, 4 Hi.k. 525; Hank v. Callin, 1:3
Vt. 39; Stahl r. Woltc, f, W.N. C. M'a.) 14:5; Hank r. Conno-
way, 4 Himston 200; Cardwell *•. Allan, :5;5 (Jratt. 1«;0; Whit-
ridge V. Kider, 22 .Md. 548; Hiker i\ A. »S: W. Sprague Mfg.
Co., 14 K. I. 402; DulYy v. O'Conner, 7 Hax. 498.

The New York cases incline to construe all acts as waivers
wliich they reasonably can ; Rope v. Van Wagner, :3 N. V. State
Rep. 150; Spencer r. Harvey, 17 Wend. 480; Sheldon r. Hor-
ton, bS Harl). 2:3; Sheldon v. Chapman, :51 N. V. 044 ; Holling
V. Sprague, 24 Wk. Dig. 07 ; Russell v. Cronkhite, :52 Harh. 282;
Coddington v. Davis, :3 Den. 10. See contra ; Hank v. Knower,
Lalor's Sup. to Hill & Denio, 122; Lilly v. Petteway, 73 N. C.
358; Wheeler v. Souther, 4 Cush. 006; Creamer v. Perry, 17
Pick. 332; Freeman v. O'Hrien, 38 Iowa 400; Olendorf v.
Swartz, 5 Cal. 480. The cases agree that parol evidence of
waiver is sutlicient if made after the time of the indorsement;
Power V. Mitchell, 7 Wis. 161 ; Dye v. Scott, 35 Ohio St. 194 ;
Barclay v. Weaver, 19 Pa. St. 396 ; Hazard v. White, 26 Ark.
155; Rodney I'. Wilson, 07 Mo. 12:5: Heeler v. Frost, 70 Id.
185; Haskerville v. Whitlield, 41 Miss. 5:35. In Pennsylvania,
Ohio, and Arkansas parol waiver at time of indorsement may
be shown : in the other States not. See Annville Hank v. Ket-
tering, 100 Pa. St. 531.

One partner may, without special authority, waive demand
and notice of a bill drawn in the regular course of the partner-
ship business. Farmers' Bank v. Lonergan, 21 Mo. 40. The

BICKERDIKE V. BOLLMAN. 1295

terms of a written waiver, however, cannot be restricted by
parol ; Hayes v. Fitch, 47 Inch 21. The question of waiver is
said to be for the jury ; Lary v. Young, 13 Ark. 401 ; Car-
michael v. Bank, 4 How. (Miss.) 567 ; for the court, Wilson v.
Huston, 13 Mo. 146. Notice is not waived by an offer of pay-
ment in depreciated bank bills without explanation ; it is merely
an offer of compromise ; Newberry v. Trowbridge, 13 Mich. 263.
Before maturity the indorser can waive onlj demand and notice ;
after maturity he can waive proof of demand and notice ; Hoadley
V. Bliss, 9 Ga. 303 ; Farmers' Bank v. Wapes, 4 Harr. (Del.)
429; Bryant v. Wilcox, 49 Cal. 47. Waiver does not extend
beyond the person. To charge an indorser a demand must be
made at maturity, although the maker has told the holder that
he will not be able to pay it ; Applegarth v. Abbott, 64 Cal. 459.

" Protest tvaived " dispenses with all legal steps after demand
to charge drawer or indorser ; Porter v. Kemball, 53 Barb. 467 ;
• Coddington v. Davis, 1 N. Y. 186: Shaw v. McNeill, 95 N. C.
535 ; Fisher v. Price, 37 Ala. 407 ; Mcllvaine v. Bradley, 1 Dis-
ney (Ohio) 194; Fitch v. Citizens' Bank, 97 Ind. 211; Contin.
Life Ins. Co. v. Barber, 50 Conn. 567. To waive demand there
must be a waiver of demand ; nothing less will do it. This of
course also waives all subsequent steps ; Jaccard v. Anderson,
37 Mo. 91 : Sprague v. Fletcher, 8 Oreg. 367 ; Dye v. Scott, 35
Ohio St. 194.

A telegram sent by the indorser of a note to the collecting
bank, requesting it to pay the note and mve pi-otest, and draw
on him, is a waiver of both demand and notice ; Seldner v.
Mount Jackson Bank, 66 Md. 488. See, also. Corner v. Pratt, 138
Mass. 446.

If an indorser guarantees payment or acknowledges receipt
of notice of protest, this relieves the holder from making de-
mand or giving notice ; City Savings Bank v. Hopson, 53 Conn.
453. Notice to assignee in bankruptcy of indorser is not suffi-
cient ; it must be personal ; House v. Vinton Bank, 43 Ohio St.
346. See, also, Donnell v. Lewis County Savings Bank, 80 Mo.
165. Notice to the payee's assignee for the benefit of creditors
may be sufficient to charge the indorser ; Callahan v. Kentucky
Bank, 82 Ky. 231.

Although protest is not necessary on an inland bill, yet its
waiver in such case is construed to signify as much as when
appUed to foreign bills ; Shaw v. McNeill, 95 N. C. 535. See.

12\Ht IJICKKUDIKK \. lioLLMAN.

also, Johnson v. Piusons, 1 10 .M,i>>. IT^i. Tlie waiver may Ix? in
the bill or note itself, thfii notice need not Ik- pioved : liiyant
r. Tayh)!-, lit Minn. :V.m;: liooker r. Morris, CI Ind. -Jst;; Xeal
V.Wood, 23 Id. ')-2^[ Lowry v. Steel, liT Id. IDS; Smith i<.
Loekiidge, H Hush 4-)l. A waiver of notice of [)rotest in a
note payable to order, by all tiie parties to the note, binds the
payee who indorses the note to make it negotiable; Woodward
V. Lowry, 74 fia. 14H. The Tenne.ssee aet of Feb. 24, 1879,
permitting' a delay in protest and notice where an epitlemie is
j)revaleiit, does not preclude an immediate notice; Ilanauer t'.
Anderson, Iti Lea (Tenn.) -U^.

As to what constitutes «lue dili<;em'e, see America Bank v.
Shaw, 142 Mass. 21*0. If the notice is directed to the indorser,
giving the name of town ;ind stat»', it is sntlicient when the
houses on the street are not numbered and there is no carrier's
delivery; Morse i*. Chand)erliu, 144 .Ma.ss. 40G. Notice to part-
ners as indorsers is sulhcient wbcn left at the place of business
with one in charge, or at the residence of either partner; St.
Louis Bank v. Altheimer, 1>1 Mo. IIM). Notice nmst be direited
to the i)roper jjost-othce of the indorser to i)ind him; Northwest-
ern Coal Co. /'. r>o\\Mian, •>;» Iowa 1*)0. See, also, Phelps v.
Stocking, 21 Neb. 44:}.

Infancy of the maker of a note does not excuse the want of
a demand on him by the holder in order to charge the indorser.
Such a note is voidable <»nly, not void, and infancy is solely a
personal privilege ; Wyman v. Adams, 12 Cush. 210.

Although the law allows no exception to the rule of notice
save in case of fraud, it is not so strict in defining notice as we
might expect.

Due diligence on the part of the holder to give notice to
drawer or indorsers is all that is required, and if for any reason
he is unavoidably prevented from giving the notice at the
proper time but does give it as soon as possible, or if for any
reason the notice is not received, still he will be protected ;
Staylor v. P,all, 24 :\Id. 183; Robinson v. Hamilton, 4 Stew. &
Port. 91 ; Foard v. Johnson, 2 Ala. oOo ; Roberts v. Mason, 1 Id.
373 ; Nevill v. Hancock, 15 Ark. 511 ; Winston v. Richardson,
27 Id. 34.

Various circumstances may render it impossible to make
demand at the proper time or to give immediate notice, e.i/.,
accident, interruption of communication, or sickness of the

BICKEKDIKE V. BOLLMAN. 1297

holder, if it be both sudden and so severe as to prevent him
from making demand or giving notice or having it done by
some one else ; Wilson v. Senier, 14 Wis. 380 ; Morgan v. Bank,

4 Bush 82. As soon as the impediment is removed the demand
must be made and the notice given. If notice can be given,
although demand is impossible, it must be given ; Lane v. Bank,
9 Heisk. 419.

For cases showing what constitutes diligence, see Betts v.
Cox, 2 City Ct. (N. Y.) 31 ; N. Y. Belting & Packing Co. v. Ela,
61 N. H. 352 ; United States Bank v. Burton, 58 Vt. 426 ;
McClelland v. Bishop, 42 Ohio St. 113 ; Edmonston v. Gilbert,
3 Mackey (D. C.) 361 ; Morton v. Cammack, 4 MacArthur
(D. C), 22; Commerce Bk. v. Chambers, 14 Mo. App. 152;
Pearce v. Langfit, 101 Pa. St. 507. Notice mailed two days
after dishonor is usually too late ; Sanderson v. Sanderson, 20
Fla. 292.

The cases differ as to what is a sufficient allegation in the
pleadings to permit proof of " circumstances " as " notice ; "
Hall V. Davis, 41 Ga. 614 ; Kennon v. M'Rea, 7 Port. (Ala.)
175 ; Faulkner v. Faulkner, 73 Mo. 327 ; Martin v. Ewing, 2
Humph. 559 ; Norton v. Lewis, 2 Conn. 478 ; Moore v. Ayres,

5 S. & M. 310. But if partnership of drawer and drawee be
the " circumstance," it must be alleged ; Harwood v. Jarvis, 5
Sneed 375. In Texas and Iowa a stricter rule applies, and a
specific allegation is necessary ; Cole v. Wintercost, 12 Tex.
118 ; Lumbert v. Palmer, 29 la. 104.

Indemnity. — When a drawee assigns his property to or in-
demnifies an indorser, the indorser undertaking to provide for
the bill, he is not entitled to notice as he has assumed a primary
liability. The leading case on this point is Bond v. Farnham,
5 Mass. 170. The indorser received all the property of the
maker of the notes for the purpose of taking care of the notes.
He assumed a primary liability. See, also. Barton v. Baker,
1 S. & R. 334. It all turns on whether the circumstances are
such as to imply that the indorser did assume a primary lia-
bility. If he receive all the property of the one originally pri-
marily liable, or if he receive enough to pay the bill, the law will
assume that he agreed to be primarily liable. If he gets all the
maker has, he cannot then be injured by lack of notice ; he could
not do anything to protect himself further ; but if he does not
get all and the indemnity is only partial and there is no express

l:i'J8 niCKKKDIKK \. i;< 'I.I.MAN.

promise' to tiikf ciin; of tlio hill, the l;i\v will lu'situte to iniplv
8ULh a promise; Diiihiim v. I*ii«e, ') Vi-ri,'. '500; nniiisou v.
Nui)ic'r, 1 Id. 1:>1»; Lflliiij;\vi'll r. Whiti-, 1 .1. .1ms. ("as. ".»'.» ; Mraul
V. Small, 2 (fieeiileaf 207; Hank v. ( JrisuuM, 7 Wfinl. !•».');
Co(l(liiiL,ftoii r. Davis, l\ Den. 1<>, -•». Whinr llu; indoistT ht-ld
j^oods for uhiiih the note wsis given as security for his indoi-se-
ment, this was held not to dispense with notice to him ; Holland
v, 'rurncr, 10 Conn. J^OS. Theri' heinj,' no a<;reement to pay.
IJut if fully indemnitied it is held that no notice is necessary ;
Develiiif,' r. Ferris, IS Ohio 17<); IJeard r. Westerman, .'52 Ohio
St. 2'.i. ( olhitcral security is not sjilVuifnt ; In- must he al)-
solutely indcmniticil ; Kramer r. Sandford, 4 \V. A: S. :>2>f ;
Walters r. Munroe, 17 Md. l')l, says, if ahsolutely iudemnilied
bcj'orf note falls due, no need of notii-e ; hut if not j^iveii uiitd
(i/frr he has heen disc hari,n'd for want of notice, an iudeuuiity
against i/fntrul liahilities is not suHicient ; Carlisle r. Hill, 1<J
Ala. 8HH. In any case to excuse want of notice the indemnity
nnist he ample. Simply an lussignment for all transactions un-
less ample is not sutVudent; Van Nonlen r. Buckley, 5 Cal. 2H3 ;
liank r. MeCniire, 1^8 Ohio St. 205. Where the maker in<lem-
nilics his iiidorser, and aftei wards shows him the note saying
he h;is paid it, and demanding and ohtaining a ridease of the in-
denniity, if it has not heen paid want of notice cannot he
excused on the giouud of indemnity; Hank r. Marston, 7 Ala.
108. If with full knowledge of all the facts an ind(U\ser accepts
indemnity afti;r discharge, it is persuasive eviilence of his lia-
bility ; Harding v. Waters, 6 IJ. J. Lea 324; Hank v. (iovan,
10 Sm. & Mar. 383.

See generally on the subject of indemnity; Wilson r. Senier,
14 Wis. 380 ; Watt v. Mitchell, 6 How. (Miss.) 131 ; Walker
V. Walker, 7 Ark. 542; Creamer v. Perry, 17 Pick. 332; Selby
V. Buckley, 1 Kings Dig. (Tenn.) 2G1 : Irelind v. Kip, Anth.
N. P. (N.V.) 195: Spencer v. Harvey, 17 Wend. 4S0; Bruce
V. Lytle, 13 Barb. lt)3; Denny i\ Palmer, 5 Ired. 610; Hayes
V. Werner, 45 Conn. 24tj : Kyle v. Green, 14 Ohio 405; Wal-
ters V. Munroe, 17 Md. 154: Brandt v. Mickle, 28 Id. 43«3 ;
Holman v. Whiting, 10 Ala. 703; Cockrill v. Hobson, 16 Id.
301. Where a surviving indorser took indemnity from the
maker, and collected thereon nearly the whole amount, held an
admission by him that the proper steps had been taken to
charge both indorsers ; Willis v. Green, 5 Hill 232. In Geor-

BICKEUDIKE Y. BOLL]VIAN. 1299

gia by statute no demand or notice is required on notes unless
they are to be negotiated at a chartered bank ; Hoadley v. Bliss,
9 Ga. 303. The courts have extended this to include bills ;
Holmes v. McKenzie, 34 Ga. 558. See, also, Randolph v. Flem-
ing, 59 Ga. 776 ; McLaren v. Bank, 52 Ga. 131 ; Gilbert v.
Seymour, 44 Ga. 63.

The Texas statute permits immediate suit to excuse want of
notice. It must be brought, if possible, at the next succeeding
term. See Insall v. Robson, 16 Tex. 128. This statute of course
applies only when it is necessary to excuse want of notice ;
Durrum v. Hendrick, 4 Tex. 495 ; Wood v. McMeans, 23 Id.
484 ; Platzer v. Norris, 38 Id. 1.

In Illinois by statute no notice is required in the case of
promissory notes ; Harding v. Dilly, 60 111. 528.

PASLEY V. FREEMAN.

TJilXITY, 21) GEO. -.i. — IX Till: KISC'S UESCII.

[KKI'i»K1T.1> ;{ T. K. .'.l.J

A false afHrmntioiu made htf the defewlant with intent to defraud
the plaint iff\ wherel'i/ the plaintiff receivex damat/e, in the <i round
of an action upon the cane in the nature of deceit. In nurh an
action, it is not necessary that the defendant should he henefited
hji the deceit, or that he should collude with the person who is.

This was an aetion in the nature of a writ of deceit; to
which the ilefenchiiit pleaded the general issue. And after a
verdict for the plaintilTs on the third count, a motion was made
in arrest of judL^nicnt.

The third count was as follows: "and whereas also the said
Jose})h Freeman, afterwards, to wit, on the 21st day of Fel)-
ruary, in the year of our Lord 1TM7, at London aforesaid, in
the i)arish and ward aforesaid, further intendini,' to deceive and
defraud the said John I'asley and Edward, did wrongfully
and deceitfully encouiage and persuade the said John Pasley
and Edward, to sell and deliver to the said John Christopher
Falch divers other goods, wares, and merchandises, to wit, six-
teen other bags of cochineal of great value, to wit, of the value
of 2634/. 16s. 1(/., upon trust and credit ; and did for that pur-
pose there and then falsely, deceitfully, and fraudulently, assert
and afhrm to the said John Pasley and Edward, that the said
John Christopher then and there was a i)erson safely to Ije
trusted and given credit to in that respect; and did thereby
falsely, fraudulently, and deceitfully, cause and procure the
said John Pasley and Edward to sell and deliver the said last-
mentioned goods, wares, and merchandises, upon trust and

1300

PASLEY V. FREEMAN. 1301

credit, to the said John Christopher ; and in fact they the said
John Pasley and Edward, confiding in and giving credit to the
said hxst-mentioned assertion and aihrmation of the said Joseph,
and beUeving the same to be true, and not knowing the con-
trary thereof, did afterwards, to wit, on the 28th day of Feb-
ruary, in the year of our Lord 1787, at London aforesaid, in the
parish and ward aforesaid, sell and deliver the said last-men-
tioned goods, wares, and merchandises, upon trust and credit,
to the said John Christopher ; whereas in truth and in fact, at
the time of the said Joseph's making his said last-mentioned
assertion and affirmation, the said John Christopher was not
then and there a person safely to be trusted and given credit
to in that respect, and the said Joseph well knew the same, to
wit, at London aforesaid, in the parish and ward aforesaid.
And the said John Pasley and Edward further say, that the
said John Christopher hath not, nor hath any other person on
his behalf, paid to the said John Pasley and Edward, or either
of them, the said sum of 2634Z. 16s. Id. last mentioned, or any
part thereof, for the said last-mentioned goods, wares, and
merchandises ; but on the contrary the said John Christopher
then was, and still is, wholly unable to pay the said sum of
money last mentioned, or any part thereof, to the said John
Pasley and Edward, to wit, at London aforesaid, in the parish
and ward aforesaid; and the said John Pasley and Edward
aver that the said Joseph falsely and fraudulently deceived
them in this, that at the time of his making his said last-men-
tioned assertion and affirmation, the said John Christopher was
not a person safely to be trusted or given credit to in that
respect as aforesaid, and the said Joseph then well knew the
same, to wit, at London aforesaid, in the parish and ward
aforesaid ; by reason of which said last-mentioned false, fraudu-
lent, and deceitful assertion and affirmation of the said Joseph,
the said John Pasley and Edward have been deceived and
imposed upon, and have wholly lost the said last-mentioned
o-oods, wares, and merchandises, and the value thereof, to wit,
at London aforesaid, in the parish and ward aforesaid : to the
damage," &c.

Application was first made for a new trial, which, after argu-
ment, was refused : and then this motion in arrest of judgment.
Wood argued for the plaintiffs, and Russell for the defendant,
in the last term : but as the court went so fully into this sub-

loO'J I'ASLKV V. I'KEKMAN.

jt'Ct in giviiipf their opiiiidiis, it is uunecessm y to ^ive the ar^i-
inents iit tht; hiir,

Tl»o court took time to consider of this mutter, iiiid now (h'-
livered their opinions nenatim.

GroHt^ .]. rpon the fiiee of this count in the <lechinition, no
privity of contract is stiite«l iM'tween the parties. No consi(K'ra-
lioii arises tn the defendant. And he is in no situation in which
tlje hiw consi(his him in any trust or in whidi it (h-niands from
liim any account of tin* credit nf I-'alch. \\v appears not to Ik«
interested in any transaction iM-twccn the phiintiffs and Fahdi,
nor to have colludeil with them; luit he knowini,dy iisserted a
falseliood hy sayinj^ that Fahh might Ik; safely entrusted with
the goods, and given credit to, for tliu purpose of inducing tlie
phiintilYs to trust him witli them, hy which tlie phiintitTs h)st
tlie value of the goods. 'I'hen this is an action against the de-
fendant for making a false athrmatitin, or telling a lie, respect-
ing till' crrdil of ;i thiid pe|-son, with iuteut to deceivi', hy
which the third person was [the plaintilTs were] danniilied : and
for tin' damages sutTcrccl, tlu' iilaiiititTs contend that the de-
fendant is answt'rahlc in an action upon the iii>c. It is ad-
mitted, that the action is new in point of precedent : hut it is
insisted that the law recognises principles on which it may l)e
supported. The priiu'iple on which it is contended to lie is,
that wherever deceit or falsehood is jjractised to the detriment
of another, the law will give redress. This [troposition I con-
trovert ; and shall endeavour to show, that in every case where
deceit or falsehood is practised to the detriment of another, tlie
law will not give redress ; and I say that hy the law, as it now
stands, no action lies against any person standing in the pre-
dicament of this defendant for the false allirmation stated in the
declaration. If the action can l)e sujtported, it must he upon
the ground, that there exists in this case, what the law deems
damnum cum injurid. If it does, I admit that the action lies ;
and I admit that, upon the verdict found, the plaintiffs appear
to have been damnified. But whether there has been injuria^
a wrong, a tort for wliich an action lies, is matter of law. The
tort complained of is the false affirmation made with intent to
deceive ; and it is said to be an action upon the case analogous
to the old writ of deceit. When this was first argued at the
bar, on the motion for a new trial, I confess I thought it reason-
able that the action should lie : but on looking into the old

* PASLEY V. FREEMAN". 1303

books for cases in which the old action of deceit has been main-
tained upon the false affirmation of the defendant, I have
changed my oj^inion. The cases on this head are brought to-
gether in Bro. tit. Deceit^ pi. 29, and in Fitz. Abr. I have like-
wise looked into Danvers, Kitchins, and Comyns, and I have
not met with any case of an action upon a false affirmation,
except against a party to a contract^ and where there is a prom-
ise., either express or implied, that the fact is true which is
misrepresented : and no other case has been cited at the bar.
Then if no such case has ever existed, it furnishes a strong ob-
jection against the action, which is brought for the first time,
for a supposed injury which has been daily committed for
centuries past ; for I believe there has been no time when men
have not been constantly damnified by the fraudulent misrepre-
sentations of others : and if such an action would have lain,
there certainly has been and will be, a plentiful source of litiga-
tion of which the public are not hitherto aware. A vaiiety of
cases may be put : — Suppose a man recommends an estate to
another, as knowing it to be of greater value than it is ; when
the purchaser has bought it, he discovers the defect, and sells
the estate for less than he gave ; wh}- may not an action be
brought for the loss, upon any principle that will supjDort this
action ? And yet such an action has never been attempted.
Or, suppose a person present at the sale of a horse asserts that
he was his horse, and that he knows him to be sound and sure-
footed, when in fact the horse is neither the one nor the other ;
according to the principle contended for by the plaintijffs, an
action lies against the person present as well as the seller ; and
the purchaser has two securities. And even in this veiy case,
if the action lies, the plaintiffs will stand in a peculiarly for-
tunate predicament, for they Avill then have the responsibility
both of Falch and the defendant. And they will be in a better
situation than they would have been, if, in the conversation that
passed between them and the defendant, instead of asserting
that Falch might safely be trusted, the defendant had said, " If
he do not pay for the goods, I will ; " for then undoubtedly an
action would not have lain against the defendant. Other and
stronger cases may be put of actions that must necessarily
spring out of any principle upon which this can be supported,
and 3'et which were never thought of till the present action
was brought. Upon what principle is this act said to be an

loU4 l'A.si,i.\ \. I r.KK.MAN.

injury? The phiintiffs say, on the ^i»)iiii<I that, wlieii the (jues-
tioii was asked, tlu- (k'feiidaiit was hound to tell the truth.
'I'heic aie eases, I admit, where a man is hound not to niisiejH
resent, i)ut to tell tlic tiulh; hut no such case has heen eited,
exeept in the ease of cnntructa ; anil all the eases of deeeit for
niisinfoiniation may, it seems to me, l)e turned into actions of
uxsumpHt'f. And so far from a person liein^ hound, in a ease
like tlie jjresent, to tell the truth, the lM)oks sui»i)ly me with a
variety of eases in whieh even the coiitraetiuf^ party is not lial)le
for a misrepresentation. There are eases of two sorts, in which,
tliiiu^di a man is deceived, he can maintain no action. The
lirsl class of cases (thoUL,di not analoi^'ous to the present) is,
where the aflirmation is that the thin^ s(d(l has not a defeet
which is a visihlc one: there the imposition, the fraudident
intent, is admitted, l)Ut it is no tort (a). The second head of
ciuses is where the aOirmation is (what is called in some of the
books) a nude assertion ; such as the party deceived may exer-
cise his own judiTuient upon ; as where it is a matter of opinion,
where he may makt; intjuiries into the trtith of the as.sertion,
and it becomes his own fault from laches that he is deci'ived.
1 Roll. Ahi. 101 ; Velv. lid; 1 Sid. llf, ; ( 'ro. Jac. 38») : liaj/lt'i/
V. Mcrn-l. In Ilnriu'i/ v, Yoinni, Yelv. 20, J. S., who had a term
for years, alhrnKMl to J. I), that the term was worth 1;>0/. to be
sold, upon wliicli ,]. I), i^ave 150/., and afterwanls could not get
more than lOO/. for it, and then broUL,dit his action: and it was
allcired that this matter did not prove any fraud, for it was
only a naked assertion that the term was worth so much, and it
was the plaintiff's folly to give credit to sueh assertion. But if
the defendant had warranted the term to be of sueh value to Ikj
sold, and upon that the plaintiff had bought it, it would have
been otherwise ; for the warranty given by the defendant is a
matter to induce confidence and trust in the plaintiff. This
ease, and the passage in 1 Ko. Abr. 101, are recognised in 1 Sid.
146. How, then, are the cases? None exist in which such an
action as the present has been brought; none, in which any
principle applicable to the present case has been laid down to
prove that it will lie — not even a dictum. But from the cases
cited, some principles may be extracted to show that it cannot
be sustained ; 1st, That what is fraud, wdiich will support an

(a) See Margetson v. Wright, 7 Bing. G05; 8 Bing. 457; 3 Bl. Comra. 166;
Dyer v. Hargrove, 10 Ves. 507.

PASLEY V. FREEMAN. 1305

action, is matter of law ; 2clly, That in every case of a fraudu-
lent misrepresentation attended with damage, an action will not
lie, even between contracting/ parties ; 3dly, That if the assertion
be a nude assertion, it is that sort of misrepresentation, the
truth of which does not lie merely in the knowledge of the de-
fendant, but may be inquired into, and the plaintiff is bound so
to do ; and he cannot recover a damage which he has suffered
by his laches. Then let us consider how far the facts of the
case come within the last of these principles. The misrepresen-
tation stated in the declaration is respecting the credit of Falch;
the defendant asserted that the plaintiffs might safely give him
credit : but credit to Avhich a man is entitled is matter of judg-
ment and opinion, on which different men might form different
opinions, and upon which the plaintiffs might form their own :
to mislead which no fact to prove the good credit of Falch is
falsely asserted. It seems to me therefore, that any assertion
relative to credit, especially where the party making it has no
interest, nor is in any collusion with the person respecting
whose credit the assertion is made, is like the case in Yelverton
respecting the value of the term. But at any rate it is not an
assertion of a fact peculiarly in the knowledge of the defendant.
Whether Falch deserved credit depended on the opinion of
many ; for credit exists on the good opinion of many. Respect-
ing this, the plaintiffs might have inquired of others, who knew
as much as the defendant ; it was their fault that they did not,
and they have suffered damage by their own laches. It was
owing to their own gross negligence that they gave credence to
the assertion of the defendant, without taking pains to satisfy
themselves that that assertion was founded in fact, as in the
case of Bayley v. Merrel. I am therefore of opinion, that this
action is as novel in principle as it is in precedent, that it is
against the principles to be collected from analogous cases, and
consequently that it cannot be maintained.

Buller^ J. The foundation of this action is fraud and deceit
in the defendant and damage to the plaintiffs. And the ques-
tion is. Whether an action thus founded can be sustained in a
court of law. Fraud without damage, or damage tvitJiout fraud ,
gives no cause of action ; hut where these ttvo concur, an action
lies. Per Croke, J., 3 Bulst. 95. But it is contended, that this
was a bare naked lie, that, as no collusion with Falch is charged,
it does not amount to a fraud : and, if there were any fraud,

VMn) I'ASLKY V. I i:i:i:.MAN.

the niitiui' of it is iidl >liUi(i and it w.i.s .su|HK)st»l by llic rouii-
SL'l who ori<^iitiilly iiuide tlu; inotioii, tluit no iirtioii i-oulil Ih)
iiiiiintaiiied, unless the dufendant, who made tills false tuisertioii,
iiad an Interest in so doln<r. I a<;n>t> tiiat an aetlon cannot Ix)
supported for telling a hare naked lie; hut that I «letine to l»o,
sayini,' a ihin^ whiih is false, knowiui; or not knowing' it to Ih3
so, and without any desi^^n t<» injiin', clu-al, or dei-eive, anotlier
person. J'Jiuri/ ilerfit coniftrfhi-miH d llf ; Intf <i ilereit i» more
thiiii a lie, on aecount of tin- view with which it is praetisi-d, its
hein^ eou|>lt'd with smnr dcaliiii,', anil the injury whieh it is
calculated to occasion, and does occasion, to an«>ther person.
Deceit is a very extensive head in tlie law; and it will he
proper to take a short view of some of tiie eiises which have ex-
istiMl on the suhject, to see how far the courts have j;»>ne, and
what are the principles upon whieh they have ileci«led. I lay
out of the (pU'stion the case in - Cro. 19t», und all other eases
wiiirh nlatc to freehold interests in lands ; for they go on the
speiial reason that the seller cannot have them without title,
and tlu' huyer is at his peril to see it. Hut the cases citc(l on
the part of the defendant deserving notice are, ^'elv. "Jo ; (arth.
IM); Salk. lilO. 'Ihe iirst of these has In-en fully stated hy n>y
brother G roue : hut it is to he observed that the book does not
affect to give the reasons on which the court delivered their
judgnient ; but it is a ease ipioted by counsel at the bar, w ho
mentions what was alleged by counsel in the other ease. If
the court went on a distinction Intween the words warntnty
and (iffirmatlon, the case is not law : for it was rightly held by
JJo/f, ('. ,1., in the subse(pU'nt lases, and has been uniforndy
ailopted ever sin»t', that an allirination at the lime of a sale is
a warranty, provided it a[ipear on evidence to have been so in-
tended (<f). lint the true ground of that ileterniination was,
that the assertion was of mere matter of judgment and opiiuon;
of a matter which the defendant had no particular knowledge,
but of which many men will he of many minds, and whiidi is
often governed by whim and caprice. Judgment or opinion, in
such case, implies no knowledge. And here this case ditTers
materially from that in Yelverton: my brother Grose considers
this assertion as mere matter of opinion only ; but I differ from
him in that respect; for it is stated on this record, that the
defendant knew tliat the fact was false. The ease in Yelv. ad-

(rt) See roicrr v. Barham, 4 Ad. & Ell. 473.

' PASLEY V. FEEEMAN. 1307

mits, that if there had been fraud, it woukl have been other-
wise. The case of Crosse v. Gardner, Carth. 90, was upon an
affirmation that oxen, which the defendant had in his possession,
and sold to the phiintiff, were his, when in truth they belonged
to another person. The objection <igainst the action was, that
the dechiration neither stated that the defendant deceitfully sold
them, nor that he knew them to be the property of another per-
son ; and a man may be mistaken in his property and right to a
thing without cmy fraud or ill intent. Ex concessis, therefore, if
there were fraud or deceit, the action would lie ; and knowl-
edge of the falsehood of the thing asserted is fraud and deceit.
But notwithstanding these objections, the court held that the
action lay, because the plaintiff had no means of knowing- to
whom the property belonged but only by the possession. And
in Cro. Jac. 474, it was held, that alhrming them to be his,
knowing them to be a stranger's is the offence, and case of ac-
tion. The case of Medina v. Stoughton (a), in the point of decis-
ion is the same as Crosse v. Gardner : but there is an obiter dic-
tum of Bolt, C. J., that, where the seller of a personal thing is
out of possession, it is otherwise, for there may be room to ques-
tion the seller's title, and caveat emjytor in such case to have an
express Avarranty or a good title. This distinction by Holt is not
mentioned by Lord Raym. 593, who reports the same case : and
if an affirmation at the time of sale be a warranty, I cannot feel
a distinction between the vendor's being in or out of possession.
The thing is bought of him, and in consequence of his assertion :
and if there be any difference, it seems to me that the case is
strongest against the vendor when he is out of possession,
because then the vendee has nothing but the warranty to rely
on. These cases then are so far from being authorites against
the present action, that they show that, if there be fraud or
deceit, the action will lie ; and that knowledge of the falsehood
of the thing asserted is fraud and deceit. Collusion then is not
necessary to constitute fraud. In the case of a conspiracy, '
there must be a collusion between two or more to support an
indictment: but, if one man alone be guilty of an offence,
which, if practised by two, would be the subject of an indict-
ment for a conspiracy, he is civilly liable in an action for
reparation of damages at the suit of the person injured. That
knowledge of the falsehood of the thing asserted constitutes

(rt) Salk. 210.

1308 I'ASLEV V. I'KKKMAN.

fraud, tliou^Mi tliere be no coUusmjii, is I'liither proved hy the
case of Risneij v. kSeWy, Salk. 211, where, \\\nn\ a treaty for tlie
purchase of a house, the defendant fraudulently atlirnied that
the rent was 30/. per annum when it was only 20/. per annum,
and the plaintiff had his judjjfinent; for the value of the rent is
a matter which lies in the jtrivate knowled<^e of the landlord
and tenant, and if they afliini the rent to he more than it is,
the ])uri'haser is cheated, and ()UL,dit to have a remedy for it.
No collusion was there stated, nor docs it ap{)car that the
tenant was ever asked a tjuesiion alioul the rent, and yet the
purchaser mii^ht have ap[)licd to him for information; hut the
judgment })roceeded wholly upon the ground that the de-
fendant knew that what he asserted was false. And by the
words of the books it seenis that, if the tenant had said the
same thing, he also would have been liable to an action. If so,
that wouhl l)e an answer to the objection, that the defendant in
this case had no interest in the a.ssertion wiiich he made. Hut
I shall not leave this point on the di<'tu7n or inference which
may be collected from that case. If A. by fraud and deceit
cheat r>. out of 1 <•<»()/., it makes no difference to I^ wliether
A., or any other })crson, pockets that 1000/. He has lost his
money, and if he can lix fraud u})on A., reason seems to say
that he has a right to seek satisfaction against him. Authori-
ties are not wanting on this point. 1 Roll. Abr. i'l, pi. 7. If
the vendor attirm that the gooils are the goods of a st range i-,
his friend, and that he had authority for him to sell them, and
upon that B. buy them, when in truth they are the goods of
another, yet if he sell them fraudulently and falsely on this
pretence of authoiity, though he do not warrant them, and
though it be not averred that he sold them knowing them to be
the goods of a stranger, yet B. shall have an action for tliis
deceit. It is not clear from this case, whether the fraud con-
sisted in having no authority from his friend, or in knowing
that the goods belonged to another jjcrson : what is said at the
end of the case only proves that falsely and fraudulently are
equivalent to knoivingly. If the first were the fact in the case —
namely, that he had no authority — the case does not apply
to this point ; but if he had no authority from his friend,
whatever the goods were sold for his friend was entitled
to, and he had no interest in them. But, however that
might be, the next case admits of no doubt. For in 1 Roll.

PASLEY V. FREEMAN. 1309

Abr. 100, pi. 1, it was held, that if a man acknowledge a fine
in my name, or acknowledge a judgment in an action in my
name, of my land, this shall bind me for ever ; and therefore
I may have a writ of deceit against him who acknowledged it;
so if a man acknowledge a recognizance, statute-merchant, or
staple. There is no foundation for supposing that in that case
the person acknowledging the fine or judgment was the same
person to whom it was so acknowledged. If that had been
necessary it would have been so stated ; but if it were not so,
he who acknowledged the fine had no interest in it. Again,
in 1 Roll. Abr. 95, 1. 25, it is said, if my servant lease my land
to another for years, reserving a rent to me, and to persuade
the lessee to accept it, he promise that he shall enjoy the land
without incumbrances; if the land be incumbered, &c., the
lessee may have an action on the case against my servant, be-
cause he made an express warranty. Here then is a case in
which the party had no interest whatever. The same case is
reported in Cro. Jac. 425, but no notice is taken of this point ;
probably because the reporter thought it immaterial whether
the warranty be by the master or servant. And if the war-
ranty be made at the time of the sale or before the sale, and
the sale is upon the faith of the warranty, I can see no dis-
tinction between the cases. The gist of the action is fraud
and deceit, and if that fraud and deceit can be fixed by evi-
dence on one who had no interest in his iniquity, it proves
his malice to be the greater. But it was objected to this dec-
laration, that if there were any fraud, the nature of it is not
stated ; to this the declaration itself is so direct an answer that
the case admits of no other. The fraud is, that the defendant
procured the plaintiffs to sell goods on credit to one whom
they would not otherwise have trusted, by asserting that which
he knew to be false. Here then is the fraud, and tlie means
by which it was committed ; and it was done with a view to
enrich Falch by impoverishing the plaintiffs, or, in other« words,
by cheating the plaintiffs out of their goods. The cases which
I have stated, and Sid. 14G, and 1 Keb. 522, prove that the
declaration states more than is necessary ; for fraudulenter
without sciens, or scieiis without fraudulenter^ Avould be suffi-
cient to support the action. But, as Mr. J. Twisden said in
that case, the fraud must be proved. The assertion alone will
not maintain the action ; but the plaintiff must go on to prove

]:510 I'A.--L1.\ \. 1 Kl.hMAN.

tliiit it was false, and that the defewlant knew it to he go: by
what means that [Hoof is to Ijo niatle ont in t'vi<U'nci' nofil not
bu stated in tlie deelaiation. Some general arguments were
urgi'il at tlie bar, to shmv that misehiefs and inconveniences
would arise il' this action were sustained: for if a man, who is
asked a (question respecting another's responsibility, hesitate
or is silent, he blasts the cliaiacter of the tradesman : and if
he say that he is insolvent, he may not Ixj able to prove it.
Hut let us see what is contended for: it is nothing less than
that a man may assert that whidi lie knows to l)e false, and
thereby do ;m everlasting injury to his iicigliboMi-, and yet not
In- answerabh' for it. 'I'his is as ri-pugnaiit to hiw as it is to
morality. Then it is sai<i. that the phiintiffs liad no rigiit to
ask the (|Uestion of thr tli-ffiidant. I»iit I do not agree in
that; for the [)laintifTs had an interest in knowing what the
credit of Falch was. It was not the impiiry of idle curiosity,
but it wjis to govern a very extensive concern. The defendant
undoubtedly had his option to give an answer to the (piestion,
or not; but if he gave none, or .said lie did not know, it is
impossible for any court of justice to ado[)t tlie possible in-
ferences of a suspicious niiml as a ground for grave judgment.
All that is re(|uired of a person in the defi'ndant's situation
is, that he shall give no answer, or that if he do, he shall answer
according to the truth as far as he knows. The reasoning in
the case id' C'w/'/k v. Barnanh which was cited by the plaintilY's
counsel, is, I think, very applicable to this part of the case. If
the answer import in.solveney, it is not necessary that the <le-
fendant should Ix' able to prove that insolvency to a jury ; for
the law protects a man in giving that answer if he does it in
eonlidence and without malice. No action can be maintained
against him for giving such an answer, unless express malice
can be proved. From the circumstance of the law giving that
protection, it seems to follow, as a necessary conse(iuence, that
the law not only gives sanction to the question, but recpiires
that, if it be answered at all, it shall be answered honestly.
There is a case in the books, which, though not much to be
relied on, yet serves to show that this kind of conduct has
never been thought innocent in Westminster Hall. In R. v.
Gunston, 1 Str. 583, the defendant was indicted for pretending
that a person of no reputation was Sir J. Thornycraft, whereby
the prosecutor was induced to trust him ; and the court refused

PASLEY V. FREEMAN. 1311

to grant a certiorari., unless a special ground were laid for it.
If the assertion in that case had been wholly innocent, the
court would not have hesitated a moment. How indeed an
indictment could be maintained for that I do not well under-
stand; nor have I learnt Avhat became of it (a). The objection
to the indictment is, that it was merely a private injury ; but
that is no answer to an action. And if a man will wickedly
assert that which he knows to be false, and thereby draws his
neighbour into a heavy loss, even though it be under the
specious pretence of serving his friend, I say ausis talibus istis
non Jura subserviunt.

Ashurst, J. The objection in this case, which is to the third
count in the declaration is, that it contains only a bare assertiouy
and does not state that the defendant had any interest., or that
he colluded with the other party who had. But I am of opin-
ion that the action lies, notwithstanding this objection. It
seems to me that the rule laid down by Croke, J., in Bayley v.
Merrel (&), is a sound and solid principle — namely, that fraud
without damage, or damage without fraud, will not found an
action ; but where both concur, an action will lie. The prin-
ciple is not denied by the other judges, but only the application
of it, because the party injured there, who was the carrier, had
the means of attaining certain knowledge in his own power —
namely, by weighing the goods ; and therefore it was a foolish
credulity against which the law will not relieve. But that is
not the case here, for it is expressly charged that the defend-
ant kjieiv the falsity of the allegation, and which the jur}^ have
found to be true ; but non constat that tlie plaintiffs knew it»
or had any means of knowing it, but trusted to the veracity
of the defendant. And many reasons may occur why the de-
fendant might know that fact better than the plaintiffs : as if
there had before this event subsisted a partnership between
him and Falch, which had been dissolved: but at any rate it
is stated as a fact that he knew it. It is admitted that a fraud-
ulent affirmation, when the party making it has an interest,
is a ground of action ; as in Risney v. Selby (ji)., which was a
false affirmation made to a purchaser as to the rent of a farm
which the defendant was in treaty to sell to him. But it was
argued that the action lies not, unless where the party making

(rt) The indictment, I suppose, must (h) 3 Bulst. 95.

have been for conspiracy. (c) Salk. 211.

1,'^12 PASLKY V. FUKKMAN.

it lius an interest, or colhulcs with <>\\t' ulm has. I do not
recollect that any case was cited which |>iovfs sncli a position;
but if there were any such to he found, I should not ht-sitate
to say that it could not be law; for I have so preat a veneration
for thi' law as to suj)i)Ose that nothing can b«' law which is not
founded in common sense or common honesty. For the <;ist
of tlu! action is the injuri/ tfonc to the plaintiff, and not whether
the defendant meant to be a j^ainer by it: what is it to the
plaintilT whether the defendant was or was not to .<,Min by it?
the injury to him is the same. Ami it should seem that it
ou^lit more emphatically to lie against him, as the malice is
more diabolical, if he had not the temptation of i^ain. For the
same reason, it cannot be necessary that the defendant should
collude with one who has an interest. Hut if collusion were
necessary, there seems all the reason in the world to suppose
both interest and collusion froni the nature of the act: for it is
to be hoped that there is not to l)e found a dispositi«)n so diabol-
ical as to prompt an\ man to injure another without benetitiui^
hims»'lf. liut it is said, that if this ])e determined to l)e law,
any man may have an action broui,dit aijainst him for telling
a lie by the crediting of which another happens eventually to
be injured. But this constMjUence by no means follows: foi- in
order to make it actionable, it must be accompanied with the
circumstances averred in this count, namely, that the defend-
ant, "intending to deceive and defraud the plaintilTs, did
deceitfidly encourage and persuade them to do the act, and
for that purpose made the false aftirmati(»n, in consecjuence
of whii h they did the act." Any lie accompanied with those
circumstances, I should clearly hold to be the subject of an
action ; but not a mere lie thrown out at random without any
intention of hurting anybody, but which some person was
foolish enough to act upt)n, for the quo animo is a great part
of the gist of the action. Another argument which has been
made use of is, that this is a ne\v case, and that there is no
precedent of such an action. Where cases are new in their
principle, there I admit that it is necessary to have recourse
to legislative interposition in order to remedy the grievance ;
but where the case is only new in the instance, and the only
question is upon the application of a principle recognized in the
law to such new case, it will be just as competent to courts
of justice to apply the principle to any case which may arise

PASLEY V. FREEMAN. 1313

two centuries hence as it was two centuries ago ; if it were not,
we ought to blot out of our law-books one-fourth part of the
cases that are to be found in them. The same objection might,
in my opinion, have been made with much greater reason in
the case of Coggs v. Barnard ; for there the defendant, so far
from meaning an injury, meant a kindness, though he was not
so careful as he should have been in the execution of what he
undertook. And, indeed, the principle of the case does not,
in my opinion, seem so clear as that of the case now before us,
and yet that case has always been received as law. Indeed,
one great reason, perhaps, why this action has never occurred,
may be that it is not likely that such a species of fraud should
be practised unless the party is in some way interested. There-
fore, I think the rule for arresting the judgment ought to be
discharged.

Lord Kenyan, C. J. I am not desirous of entering very fully
into the discussion of this subject, as the argument comes to me
quite exhausted by what has been said b}^ my brothers. But
still I will say a few words as to the grounds upon which my
opinion is formed. All laws stand on the best and broadest
basis which go to enforce moral and social duties, though in-
deed it is not every moral and social duty the neglect of which
is the ground of an action. For there are some, which are
called in the. civil law duties of imperfect obligation, for the
enforcing of which no action lies. There are many cases where
the pure effusion of a good mind may induce the performance
of particular duties, which yet cannot be enforced by municipal
laws. But there are certain duties, the non-performance of
which the jurisprudence of this country has made the subject
of a civil action. And I find it laid down by the Lord C. B.
Comgns (a), that " an action upon the case for a deceit lies
when a man does any deceit to the damage of another." He
has not, indeed, cited any authority for this opinion ; but his
opinion alone is of great authority ; since he was considered by
his contemporaries as the most able lawyer in Westminster Hall.
Let us, however, consider whether that proposition is not sup-
ported by the invariable principle in all the cases on this subject.
In 3 Bulstr. 95, it was held by Croke, J., that " fraud without
damage, or damage without fraud, gives no cause of action : but
where these two do occur, there an action lieth." It is true, as

(a) Com. Dig. Tit. " Action upon the case for a deceit." A. 1.

l:;i} I'ASLKV V. FKKKMAN.

luis heen already oKserved, that the judfjes were of opinion in
that case that the aetion did not lie <tn other grounds. Hut
tr()usi(h'i* what those t^rouuds were. I)oili/rrli/i/f, .]., said, "If
we shall ^nvt- way t<» tiiis, tiieii evtMV canit r would have an
action upon the case: hut he sliall not have aiiv action for this,
l)ecause it is niendy Iilx oirn ilffiiiilt that he ditl not weii,di it."
Tudouhtedly where the coninion prudence and ciiution of nian
are sulhcient to iruard him, the law will not ]>rotect him in his
ne«rligence (a). And in that case, as reported in Cro. Jac. liSH,
the neglij,'enee of the plaintitT himself was the cause for which
the court held that the action was not niaintainahle. Then how
<loes the principle of that case api»ly to the present? There
are many situations in life, and particularly in the commercial
world, where a man c:iniiot hy any dili<;ence inform himself of
the dcLTree of cirdit which ouj^dit to he Ljiven to the persons
with whom he deids: in which cases he nnist apply to those
whose sources of intellii^'ence enahle them to i^ivc that infoi-
mation. The law of prudence leads him to apply to them, an<I
the law of morality oui^ht to imluie them to j^ive the infor-
mation re(iuired. In the case of Hulstrode, the carrier mit^ht
have wei<jfhed the goods himself ; hut in tliis ease the plaintitTs
had no means of knowing the state of Falch's credit, hut hy an
application to his neighhours. The same ohservation may he
made to the cases cited hy the defendant's counsel respecting
titles to real projierty. Foi' a person does not have recourse to
common conversations to know the title of an estate which he
is ahout to purchase: hut he may inspect the title deeds: and
he does not use connnon prudence if he rely on any other secur-
ity. In the case of lUdstrode, the court seemed to consider
that damimnt and injuria are the grounds of this action ; and
they all admitted that, if they had existed in that case, the
action would have lain there ; for the rest of the judges did not
controvert the opinion of Croke., J., but denied the application
of it to that particular case. Then it was contended here that
the action cannot be maintained for telling a naked lie ; but
that proposition is to be taken auh modo. If, indeed, no injury
is occasioned by the lie it is not actionable : but if it be attended
with a damage, it then becomes the subject of an action. As
calling a woman a whore, if she sustain no damage by it, it is
not actionable : but if she lose her marriage by it, then she may

(o) Ou this principle (lepeiul.s Pripstleij v. Foicler, 3 M. & Vr. 1.

PASLEY V. ^HEEMA^■. 1315

recover satisfaction in damages. But in this case the two
grounds of the action concur : here are both the damnum et
injuria. The pLaintiffs applied to the defendant, telling him
that they were going to deal Avith Falch, and desired to be in-
formed of his credit, when the defendant fraudulently, and
knowing it to be otherwise, and with a design to deceive the
plaintiffs, made the false affirmation which is stated on the record,
by wliich they sustained a considerable damage. Then can a
doubt be entertained for a moment but that this is injurious to
the plaintiffs ? If this be not an injur}', I do not know how to
define the word. Then, as to the loss, this is stated in the dec-
laration, and found by the verdict. Several of the words stated
in this declaration, and particularly "•fraudideriter,'' did not
occur in several of the cases cited. It is admitted that the de-
fendant's conduct was highly immoral and detrimental to soci-
ety. And I am of opinion that the action is maintainable, on
the grounds of deceit in the defendant and injury and loss to
the plaintiffs.

Rule for arresting the judgment discharged.

As to the effect produced by this celeln-ated decision on tlie operation of
the Statute of Frauds, and by st. 9 G. 4, c. 14, sec. 6, upon the class of cases
of which this is tlie leading one, see the note to Chandelor v. Lopus, ante, vol.
i. It is sliown in the same note from the cases of Foster v. Charles, 6 Bing.
396 ; 7 Bing. lOS ; Corbet v. Broione, 8 Bing. 133 ; and PolMll v. Walter, 3 B. &
Ad. 122, that, in order to prove such fraud as will sustain this action, it is
only necessary to show that what the defendant asserted was false within his
own knowledge, and occasioned damage to the plaintiff; a point which had
been much mooted in Hat/craft v. Creasy, 2 East, 92; Taylor v. Ashton, 11 M.
& W. 401. Cran-shay v. Thompson, 4 M. & Gr. 387, Cressell, J., thus lays
down the rule, " The cases may be considered to establisli tlie principle, that
fraud in law consists in Ivuowingly asserting that wliich is false in fact, to
the injury of another." See also Keats v. TTie Earl of Cadoyen, 10 C. B. 591
\_Behn v. Kemble, 7 C.B. N. S. 260, and Evans v. Edmonds, 13 C. B. 777].

A singular case occurred some time ago in the Court of Exchequer, in
which the majority of the judges decided that a contract made b}^ an agent
in behalf of his principal, and into which the contractee was induced to enter
by a representation, wliich, thougli false within the Icnowledge of the prin-
cipal, was not so witliin that of tlie agent, was not void on the ground of
fraud; for it was argued there is no fi'aud in tlie agent, since he tliought he
was telling the truth, nor any in the principal, since he did not malve the rep-
resentation. Lord Abinger, C. B., thought, upon the other hand, that the
contract being procured by misrepresentation must be tainted with legal if
not moral fraud. The case was Cornfoot v. Fowke, 6 M. & W. 358, [and the
facts were as follows : — The plaintiff (the owner of a ready-furnished house)

131*» I'ASLKV \. lltKKMAN.

had riiiploycd nn nijpnt to lot it for liim, and tlu- iim-iit had lot It to tho dofond-
uiil. Tlio udjoiiiiiij; lioijso was usod as a brotliol. and this faot was known to
tho phiintiir, bnt not to tiio a;;ont. Before the a!;r«'oinont to take tlio Iiouhc
was sifjnod i)y tlie dofoiulant, lie had asked tlio a;;ent wliotlior there was any
objection to the house, and ho had answered that there was not. The aetion
was broii;;ht ajralnst the defendant f«)r the non-porfonnanee of his agreement,
and lie pleaded that he hail boon Indneed to enti-r Into the eontrii<-t by the
fraud of the i)lalnliir.] This ease is by no means universally admitted as
law, and probably will bo hereafter questioned. [Sv^' poal, p. !•'.•]

Aecordinyly, few eases have excited more animated discussion; In the
eourse of which the <|uo>tion seems to have been — Does loiral without ujoral
fraud [or perhaps more accurately. May a misrepresentation be fraudideiit in
law so as tf)J invttlidatf tt ctmlnirl, or/i/r/iKsA i/ntnit'l of nrtinti [without moral
fraud?]. In the ca.sc of Fulhr v. W'ilsnn, ;J C^. 11. .'iH, which was an action
on the case for a false representation, tlie facts were assumed to raise the
<|uestion before referre«l to, anil the Court of l^uoon's Hench, In a considered
judiiuiout, diirorod from the view taken by the nuijority of the Court i>f K.\-
olu'ipior, in the rase of Conifoot v. Foirir, adoptini; the opinion of the Chief
Haron \i|)on that (|Uostion, •• Lord .Vbln^or maintainotl." says Lord Deiunan,
C. .1.. dolivcrini; tho jud;;mont of the court, •• and surely not without reason,
that there was some moral fraud in the conduet of both, the principal con-
cealluf; a fact which made his house utterly tmtlt for tho purpose for which
he was lettluf? It; the agent stating a falsehood, which, of course he could
not know to be tnie, even If he believed It; we do not, however, take this
ground: we ado|)t the other proposition of the Chief Haron, namely, tfi)it
tchfthrr thin- irns innnil J'riiiiil or nut. if the purchaser was aetiudly deoelved
In his bargain, the law will relieve him from it. Wo think the principal and
his agent are for this purpose completely identitled; ami that thr ijiifstinn in,
not what tras jtassimi in thr mind i>f rithi'r, hut irhi-thir thf purchaspr iras in
fart decrivfil loj them, nr either of thim." The facts of the case wore after-
wards by consent and leave of the court, stated in a special verdict, and the
judgment was reversed in error, but on a dlttorent point; .see the report 3 Q.
B. fi8 and 1009.

Meanwhile, the Court of Exchoquor, in Mums v. I/ii/irurth, in .M. & \V. 147
(Lord .Vbingor still dissentient), and in 'J'ai/lor v. Ashton, 11 .M. & W. 401,
reiterated tiioir previous opinion as delivered in Comfoot v. Foirke, whilst
the Court of (.Queen's Bench, soon afterwards, in tho case of Ktans v. Collins,
5 Q. B. 804, adhered to their former judgment upon this question. That wa.s
an action on tho case brought by the plaintitt', late Shoritt'of London, against
the defendants, attorneys for one Tower, who had sued John Wright for a
debt, and obtained execution against him, for falsely representing another
John Wright (who was then in custody of the plaintifl"), to be the defendant,
in that action, though they kneio the contrary. By which false representation
the plaintitt' was induced to detain the wrong person, Avho thereupon brought
an action against him, and therein recovered (by way of compromise) 10/.,
in respect of the unlawful imprisonment. To this declaration. Not Guilty
was pleaded; and also, 3rdly. That tho defendants had reasonable and prob-
able cause to believe, and did believe the person whom they pointed out, to
be the real defendant. Upon this third plea the defendants had a verdict,
but the court held the allegation in the declaration of the knoioledge of the
defendants, as well as the issue upon the third plea, to he immaterial, and
gave judgment for the plaintiff upon that issue, now obstante veredicto.

PASLEY V. FREEMAN. 1317

Upon a writ of error, however, the Exchequer Chamber (5 Q. B. 820) held
the allegation of the scienter in the declaration and the issue on the third
plea, to be material; and, distinguishing the case from that of Humphreys v.
Pratt, 5 Bligli, N. S. 154 (upon the authority of which the judgment in the
court below had partly proceeded), as being the case of a direction to a
mandatory or agent and not a mere representation, reversed the decision of
the Court of Queen's Bench. See also Shrewsbury v. Blount, 2 M. & G. 475.
and Rau-lings v. Bell, 1 C B. 951, where the Court of Common Pleas held
that injury caused bj' a statement false in fact, but not so to the knoAvledge
of the party making it, or made with intent to deceive, .would not support
an action. In the case of Ormrocl v. Hitth, 14 M. & W. 651, the Exchequer
Chamber again affirmed the same principle ; and as the judges of the Queen's
Bench were, it is apprehended, parties to this latter judgment, the question
may now, perhaps, be considered as settled, especiallj' as in the more recent
case of Barley v. Walford, 15 L. J. Q. B. 369; 9 Q. B. 197, the Court of
Queen's Bench acquiesce distinctly in the propriety of the doctrine, that
moral fraud in a representation is essential, in order there1)y to invalidate a
contract, or furnish ground of action ; so that the result of the recent elabo-
rate discussion of this subject would seem to leave the law very much as it
was settled by the principal case, and that of Haycraft v. Creasy, 2 East, 92,
[accord. Childers v. Wooler, 2 E. & E. 287, a case very similar in its facts to
Evans v. Collins.

The supposed distinction between legal and moral fraud has been the
source of some confusion. There is no such thing as fraud into which some
degree of moral obliquity does not enter. Accordingly (subject to what will
appear hereafter as to the responsibility of an innocent principal for the
fraud of his agent), an action of deceit will not lie for a perfectly innocent
misrepresentation, for such a representation is not fraudulent. On the other
hand, a verj^ slight degree of moral obliquitj^ may suffice to render a repre-
sentation fraudulent in contemplation of law.] It is not necessary that it
should be false to the knowledge of the party making it; if [it be] untrue in
fact, and not believed to be true by the party making it, [or made recklessly
without any knowledge on the subject] and for [the purpose of inducing an-
other person to act upon it, an action may be maintained thereon by the per-
son who has been induced to act upon it.] See the judgment in Taylor v.
Ashton, 11 M. & W. 415 (where at the 7th line from the bottom of the page
415, the word " ti-ue " is printed for " untrue"). Jarrett v. Kennedy, 6 C. B.
319 ; [Evans v. Edmunds, 13 C. B. 777, per Maule, J. ; Reese Biver Silver Min-
ing Co. V. Smith, L. R. 4 H. L. 79, per Lord Cairns; Hart v. Swaine, 7 Ch. D.
42; Eaglesfield v. Lord Londonderry, 4 Ch. D. 693, and see note to Chandelor
V. Lopus, ante, vol. i.] The purpose is essential. Thorn v. Bigland, 8 Exch.
725 ; [Behn v. Kemble, 7 C. B. N. S. 260.

For some pointed observations on the impropriety of the expression legal
fraud, see per Bramwell, L. J., Weir v. Bell, 3 Ex. D. 238. See also Joliffe v.
Baker, 11 Q. B. D. 255; 52 L. J. Q. B. 609. Still, as those facts which the
law regards as sufficient to support an action for deceit need not necessarily
amount to what in popular language would be called fraud, the expression is
a convenient one whereby to indicate the legal as distinguished from the
popular notion of fraud.

As to what amounts to a misrepresentation, see Ward v. Hohbs, 3 Q. B. D.
150; 47 L. J. Q. B. 90, affirmed 4 App. Cas. 13; 48 L. J. Q. B. 281, where it
was held that the fact of exposing pigs for sale in the open market by a per-

1^18 I'ASLKV V. t'KKK.MAN.

son ^vho knew that tlu-y woro allV'ctod with a contajfloun disease was n«»t xuf-
iK-ic'iit proof of a fraiuluk'Ht rfpn-soiitatlori.

Tlie iloctrine tliat moral fraud ii> a n pri'sontatioM Is iifci-sHury to invalidate
a fontract or furnish ^jjround of anion rannol at all In- i-xlrndid to tlioMe
cases in which the representation expressly or impliedly fonns part of the
contract lietween the parties, a.s cases of insurance, (»r the llku. Se<s the
judiriiicnt of Baron I'arke, in Moiim v. Ilfijwurth, 10 M. & W. 157.

As u> avi-rments of fraud in cases where It was not essential to the cause
of action, see tlie jutl^menl of Haron I'arke in Amlirsnn v. Thornton, H Kxch.
4L'.S. and the juditnient in Strinffn v. Lord ('h>lms/.>ril, ', 11. & N. '.•20. 1)21.]

It will l)e observed that the al)ove discussion tloes not Involve the whole of
the doctrim; proniuli;ated tiy the nuijority of the court in ('nrnfunl v. Fntrke :
so far as tliat iloctrine draws a distinction between the knowie»l;;e of the
principal and that of the a^ent, and re(|uires that the fraud and the statement
should be those uf the same Inillvidual, It Is still doubted, and may !;ive rise to
future discussion. See Wilde v. (•ihnoH, 1 H.of L. Cases, COo; (rraiU v. A'or-
ir,i,j, 10 V. ». i>r>r>; I/otnird V. Tiirker, 1 B. & A. 712. [See also Tht- yntionnl
Kxrhiinijf Co. <>/ (ihixijinr v. Itrnr, 2 Mac<iueen, 11. of L. C. lo:i, in which
case some ol)servatii>ns were nuule l)y the i»eers who took part in that decision
wliicli throw mucli liuht upon the principle of (',irii/i<i,t v. FmrHc. •• In Cnrn-
fiiiit v. /'oir/lc," .suid the Lord (hancellor ( I.onl ("ranworth ). •• the plea was
that the defendant luid l)een intiuce<l to enter into the a-^reenu'Ut sued on by
the fraud and covin of the plaintitf. The evitlence proveil nothin}; to sup-
port tliat plea; for the plalntltV ha*l merely put the house into the hands of
an asrent to be let at a stlpulatetl rent. lie had neither himself stated, nor
atitliorised the ajient to state, anythinij false or deceptive. The court held
that the plea was not made otit by evidence, widi-h merely showed the ajjent
to have stated (what he believed to be true), namely, that there was no objec-
tion attached to the house." .\nd Lord St. Leonards, after referrinj; to the
distinction betwci-n fraud and inisn-prcsentation. and statin;; that it was not
ilenied in the judirment in ('onijnot v. Finrkc, as he understood it, that the
principal would have been responsible if he had einployetl an iirnorant ajient
for the purpose of concealiufj a fact material to the value of the property,
proceeded as follows: " But I should take the liberty of going a jjood deal
further. T should say that if in that case fraud had not been alleged, but it
liad l)een \mt ui>on misrepresentation, and the fact was. that a man. knowing
that there is so serious a nuisance aH'ecting a house as to tliminisli its value
in sndi a way that no man of res|)ectability could live in it, ami he takes care
himself not to make the contract, but leaves it to an agent whom lie has no
reason to suppose is aware of the fact; and if in the course of tlie treaty
for the contract, the agent being asked if such a fact existed, states posi-
tively no, and the contract is executed hi silence upon the point, because the
purchaser or the tenant's vigilance has been lulled to sleep upon it, and he
believes the representation made to him by the agent, I say, in such a case as
that. I should be very much shocked at the law of England if I could bring
myself to believe that it would not reach the case of a person so availing
himself of a misrepresentation of his own agent, who might be ignorant of
the fact, although tlie principal himself knew it. and employed the agent in
order to avoid making a direct representation to the contrarj' .... I
should feel no hesitation, if I had myself to decide that case, in saying, that
althongh the representation was not fraudulent — the agent not knowing
that it was false — yet that, as it in fact was false, and false to the knowl-
edge of the principal, it ought to Aitiate the contract."

PASLEY V. FIIEEMAN. 1319

In Cornfoot v. Fowke the question discussed -vras, as we bave seen, tlie
effect of an innocent but untrue statement by an agent, when coupled witli a
knowledge on the part of the principal, which would clearly have been suffi-
cient to support an action of deceit against him, had he himself made the
statement couiplainod of. In Udell v. Atherton, 7 H. & N. 172, the question
arose as to the lial)ility of innocent principals to an action of deceit for a
false and fraudulent representation made by their agent as to the quality
of an article sold by him, the principals having adopted the contract and
received part of the price. The facts were shortly these. The defendants
employed an agent to sell timber on commission. The agent sold to the
plaintiff a log of timber, and fraudulently represented it to be sound, although
he knew it to be defective. The buyer gave to the principals two bills of
excliange for the price of the timber, one of which was paid ; and afterwards
the defect in the log was discovered. The buyer then complained to the
principals, who stated, as was true, that they had neither authorised nor
wished their agent to sell wood as sound which was defective ; and they
refused to make any allowance, and Insisted on the payment of the whole
price. Under these circumstances the judges of the Court of Exchequer dif-
fered as to whether the principals were liable in an action of deceit. The
true rule was, however, it is apprehended, laid down by Sir James (then
Baron) Wilde, who held that the action would lie on the ground that the
principals, having adopted the sale made by the agent and received the price,
wei'e responsible for the fraud committed by the agent in making the con-
tract, by which fraud alone the contract was obtained; and that consequently
the false affirmation by the agent might be treated as a false affirmation made
by the principals themselves. The authorities in support of this view, which
are numerous, but not very direct, are collected in Baron \Yilde's judgment,
which will repay a perusal.

In Barwick v. The English Joint Stock Bank, L. R. 2 Ex. 259, Willes, J.,
in delivering the judgment of the Exchequer Chamber, distinguished the
opinions of Martin and Bramwell, BB., in Udell v. Athertnn, on the ground
that in that case the agent was not the general agent of the defendants, and
that his act had been adopted under peculiar circumstances, and laid it down
that for false representations made by an agent in the ordinary course of his
employment for his master's benefit, the principal is responsible, in the same
manner as he is for any other wrong committed by a servant. In the same
case the same learned judge is reported to have said, " I should be sorry to
have it supposed that Cornfoot v. Fowke turned upon anything but a point of
pleading." See also Sioift v. WinterbotUam, Ij.'R. 8 Q. B. 244; Id. v. Jews-
bxiry, L. R. 9 Q. B. 308, 43 L. J. Q. B. 56; Newlands v. National Employers
Accident Association, 54 L. J. Q. B. 428; and Mackay v. The Commercial Bank
of New Brunsvnck, L. R. 5 P. C. 394, where Barvnck v. 21ie EnglisJi Joint
Stock Bank, was approved and followed, and the dicta of Lords Cranworth
and Chelmsford in the case of Western Bank of Scotland v. Addic, L. R. 1
H. L. Sc. 145, were explained and distinguished. And see Blake v. Albion
Life Assura7ice Co., 4 C. P. D. 94; 48 L. J. Q. B. 169, and i^er Lord Selborne,
Houldsworth v. City of Glasgow Bank, 5 App. Ca. at p. 326 ; and the dicta of
Lord Esher, M. R., in Blackburn v. Vigors, 17 Q. B. D. at p. 559.

In Weir v. Bell, 3 Ex. D. 238, which was an appeal from the decision of
the Ex. D. in Weir v. Barnett, 3 Ex. D. 32, Bramwell, L. J., impugns the
ground on which the judgment of the Ex. Cham, was rested in Bancick v.
English Joint Stock Bank, pointing out that fraud is essentially a wilful act,

1320 PASLEV V. ri:!:i;.MAN.

and that, as a general rule, a master is not responsil)!*- for tlie wilful art of
liis servant. Ttu- U-arned Lord .lustiee sngjjests that tiic true prinripie npon
wlueli a i)erson wlio lias eonnnitlcd no fraud hinisi-lf, may l)e iielil responsilde
for tlie fraud of Ids aLCeiit is, that he implifdly eoMtracls tliat his a^^i-nt will
not be {juilty of fraud. If, however, tlie prineiple of li'irwirk v. Thf KtniUsh
Joint Stni-k Hunk he confined, as it expressly was in that case, to aets done
by the agent or servant strictly within the scope of his employment, it seems
scarcely open to the reflections ciust upon It. Scope of employment has
undoubtedly recelveil. in many cases, an Interpretation wide enough to cm-
brace within it acts done without or even in ilirect violation of the master'H
order: see lU'tta v. df Viln-, L. K. ;j Ch. 421); Murkitij v. ('iihinurn'iil limik nf
Neir lirunsirirk, stipra, at j). 411, of L. U. ; ami if such be the law, it would
seem, with deference, no more unreasonable to hold the principal resjiousible
on the ordinary rule of nupuniledl snptrior for the frauds of his agent com-
mitted within the scope of his authority, than to resort to the llction of a
contract which is not made In fact. The rule laid d«)wn in lianrirk v. Enyliah
Joint Stork Hunk, has been approved and acted upon In many snbsc«(ucnt
cases. See the cases above cited, and Strirr v. Fninris, ;i App. ('as. 106;
S/iaiP v. J'nrl /'/lilip, &r., Co., i;j Q. B. D. lo:5, per Mathew, .1. In W'fir v.
Bell, It was held by the Court of Appeal, Cotton, L. J., dissenting (alllnning
the decision of the court below), that the defendant, a director, was not
responsible for false and fraudulent stat«'ments, inserted without his knowl-
edge, and from which he personally derivetl no beuellt. in a pros|)ectus. |ire-
pared by brokers, inviting subscriptions for debentures of the company.
The company had, by resolution, authorised the directors to ral.se money by
the issue of debentures, and the directors had thereupon Instructed brokers
to place the debentures. The court below and the majority of the Court of
Appeal, held that the directors were themselves merely agents of the com-
pany in instructing the brokers, and did not stand to the latter In the relation
of i)riiu'ii)als, so as to render themselves responsible without actual frautl.

Cotton, L. .!., was, however, of opinion that the directors who employed
the brokers were personally responsible for their fraudulent misstatements.
See also Cartiill v. Bower, 10 Ch. D. 502 ; 47 L. .1. Ch. G4'.t ; Mullens v. J/j7/er,
22 Ch. 1). 1!)4 ; .^2 L. J. Ch. 380.

An agent, acting within the scope of his authority, is not personally liable
for an innocent misrepresentation, Eaglesjiehl v. Mdniuia of Londonderry,
H. L. 2(; W. R. .540.]

As to the eftect of fraudulent representations made by members of public
companies, in order to induce parties to become subscribers, see Wonlner
V. Shairp, 4 C. B. 404; Watson v. The Earl of CharUnnont, 12 Q. B. 850; Ger-
hard V. Rates, 2 E. & B. 4G6; [Bayshaw v. Seymour, 18 C. B. 903; Bedfml
V. Baf/shaic, 4 H. & N. 538; Scott v. Dixon, 29 Law J., Exch. 62, note; The
National Exchange Co. of Glasgow v. Drew, 2 Macqueen, H. of L. Cases, 103;
The Xew Brunsicick and Canada Rail. Co. v. Conybeare, 9 H. of L. C 711;
Peek V. Gurney, L. R. 6 H. L. 377 ; 43 L. J. Ch. 19 (overruling Bagshaw v.
Seymour and Bedford v. Bagshaw, supra), where the cases on this subject are
collected; Weir v. Barnett, supra; Smith v. Chadwick, 9 App. Cas. 187;
Edgington v. Fitzmaurice, 29 Ch. D. 459.] And as to fraudulent suppression
for the same purpose, Jarrett v. Kennedy, 6 C. B. 319; \^Peek v. Gurney,
supra; Craig \. Phillips. 3 Ch. D. 722; Eaglesfeldv. ^farfjiuis of Londonderry,
4 Ch. D. C. A. 693; H. L. 26 W. R. 540; Weir v. Barnett, supra; Erlanger v.
New Sombrero Phosphate Co., 3 App. Cas. 1218; Arktrright v. Neicbold, 17

PASLEY V. FREEIMAN. 1321

Ch. D. 301 ; 50 L. J. Ch. 372. As to what amounts to a fraudulent suppres-
sion under s. 38 of the Companies Act, 1867, see Cover's case, 1 Ch. D. 182;
Twycross v. Grant, 2 C. P. D. 469, and cases therein cited; SnUivan v. Mit-
calf, 5 C. P. D. 455.

A person who has been induced to take shares in a company through the
fraud of its agents cannot, while retaining the shares, sue the company of
which he is himself a member for damages, his only remedy is rescission;
Hoiddsworth v. City of Glnsgoio Bank, 5 App. Cas. 317.]

In Pontifex v. Bignohl, 3 M. & G. 63, [it was held that] an action [was well
brought] against an insurance company for misrepresentations as to the
mode in which their business was conducted, by which the plaintiff had been
induced to insure. [" It is well established that in order to enable a person
injured by a false representation to sue for damages, it is not necessary that
the representation should be made to the plaintiff directly : it is sufficient if
the representation is made to a third person to be communicated to the plain-
tiff, or to be communicated to a class of persons of whom the plaintiff is one,
or even if it is made to the public generally with a view of its being acted
on, and the plaintiff as one of the public acts on it, and suffers damage
thereby." Swift v. Winterhotham, L. R. 8 Q. B. 253, cited in Bichardson v.
Silcester, L. R. 9 Q. B. 34.]

As to representations made by creditors to sureties, whereby they are
induced to become such, or the extent of their liability is, or might be,
increased, see Stone v. Compton, 5 N. C. 142; Railton v. Matthews, Dom.
Proc. 10 CI. & Fin. 934 ; Hamilton v. Watsow, Dom. Proc. 12 CI. & Fin. 109.

An action on the case is maintainable by the manufacturer of goods
against another manufacturer who marks his goods with the known and
accustomed mark of the plaintiff, with the intention of making them pass
for goods manufactured by him; and this although there is no proof of
special damage; Rodgersx. Novnll, 5 C. B. 109; [Farina v. Silverlock, 6 De
G. M. & G. 214; 4 Kay & J. 650; and Dixon v. Fawcus, 30 Law J., Q. B. 137;
Wotherspnon v. Currie, L. R. 5 H. L. 508; Metzlerv. Wood, 8 Ch. D. 606; 47
L. J. Ch. 625. And see the 25 & 26 Vict. c. 88, " An Act to amend the law
relating to the fraudulent marking of merchandise," as to the statutory rem-
edies which exist in these cases ; see also 46 & 47 Vict, c; 57.]

The expression of opinion by the court in the principal case, that the nov-
elty of the action is no objection, the injury being clearly shown to exist, is
cited in the note to Ashby v. White, ante, vol. i.

In the case of Langridge v. Levy, 2 M. & W. 519 [S. C. in error, 4 M. & W.
337], the Court of Exchequer carried the principle of Fasley v. Freeman
somewhat further. It was an action for falsely and fraudulently warranting
a gun to have been made by Nock, and to be a good, safe, and secure gun,
and selling it as such to the plaintiff's father, for the use of himself and sons ;
one of whom (the plaintiff) confiding in the warranty, used the gun, where-
upon it burst, and injured him. The action was held to be maintainable.
" If," says Parke, B., delivering judgment, " it (the gun) had been delivei-ed
by the defendant to the plaintiff for the purpose of being used hy him, with
an accompanying representation to him, that he might safely so use it, and
that representation had been false to the defendant's knowledge, and the
plaintiff had acted on the faith of its being true, and had received damage
thereby : then there is no question but that an action would have lain, on the
principle of a numerous class of cases, of which the leading one is Fasley
V. Freeman ; which principle is, that a mere naked falsehood is not enough

'[IV2-2 I'ASLKY V. FUKKMAN.

to K'Vf a ri;;ht of ftction ; but timt it Is so If It l)r u fiilsehooil told wltli the
Intention that It should bo ac-tril on by the party injured, and that art ujuht
prodiK-e dania<;e to him. If, instead of beln^ dtlivcred to thr plaintitt' imine-
(Until)/, the instrninent hail been placed in tin- hantis of a third pirson, fur the
purpose of hfinij delicered to, and then utted by, thf /iliuntijf', tiie like false rep-
resentation \H-h\t: knowin;;ly made to the Intermediate person to be enmmii-
nleateil to tlie plaintitl", and tin- plaintitl" had aetetl upon U, there can be no
doubt Ijut that the principle woulil ei|ually apply, ami the plaintiff would have
hail his remedy for the deceit ; nor can it make any ditlerenee that the third
person <ilni> was intended by the defendant to be deceived; nor iloes there
seem to be any substantial distinction if the instrument be tlelivered in order
to bf so used by the plaintiH", thoui;h it does not ap|)ear that the defendant
Intended the false representation itself to l)e communicated to him. This Is
a false representation made l)y the defendant, irith a rieir that the plaintiff
should use the instrument in a dawjentus iruy ; and unless the representation
had l)een made, the dangerous act would never have been done."

This Is a remarkable case; it allbrds an instance In which a party may
l)rinK an action for the conseiiuences of a breach of contract, who was not
tlie contractee. and could not have sued upon the contract. It luis been
approved and act«'d upon In I'ihnnre v. //'".(/, .') Illn<;. N. ('. tt7, and is .said to
liave proceeded u|>on the i;round of Ihv knnirltdije niu\ f'raml of the defendant,
per .Vldcrson, »., in W'interhottion v. W'ri'jht, 10 M. vt W. IW. In that case A.
built a coach for the I'ostnuister-CJeneral, H. horsed It, and Idred ('. as a
coachman to drive it. The couch broke down from a tlefect lu the building;,
for wlndi, however, it was held that C. could not sue A.

The authority of Lamiridije v. I.ery has also been recogidsed in the ca.se of
Lomimeid v. Ilidlidaij, i) K.xch. 7t;i ; there the plaintitrs wife had purchased
of the defendant a lamj) for the purpose of its \w\\\)i used by herself and her
luislmnd : the defendant was not a maiuifacturer of lamps himself, but
caused the lamps, of which the lamp in i|uestion was one, to hv put together
by other persons for him, from parts purchased of third parties; t!ie lamp
was defective, and upon the plaintitrs wife attem|»tinu to use it. exploded
and seriously injured her. The action was brou;;ht by the plaintitl' and hi.s
wife jointly to recover compensation for the injury. There was no proof at
the trial that the defendant kneir of the defects in tlie lamp, and the jury
found that he sold the lamp in Rood faitli, w itlumt any fraudulent or deceit-
ful representation; it was held that the action was not niaintainalile, there
being no fraud or any misfeasance towards the wife independently of the
contract. See also Gerhard v. Bates, 2 E. .Sc B. 47G.

[In Blakemore v. The Bristol and Kjreter liaihraij Co., 8 E. & B. 103."», a
crane had been placed on the premises of the company for the purpose of
enabling the owners of goods to unload them ; a consignee of goods having
been required by the company to remove them, proceeded to raise the goods
with the crane, assisted by his servants and the servants of the company.
B., who was the servant neither of the consignee nor of the company, was
also asked by the consignee to assist in raising the goods; he did so. and
during the operation, the crane, wliich was defective to the knowledge of
the company, broke, and B. was killed. It was held that the company was
not liable to B.'s administratrix iu respect of the accident, for although the
lender of goods for the purpose of user is responsible to the borrower in
respect of defects in the chattel, with reference to the use for which he
knows that the loan is accepted, and of which he is aware, he is not respon-

PASLEY V. FREEMAN. 132S

sible to a mere stranger who is iu no way privy to the contract of loan. In
this case the court observed that it had always been considered that Levy
V. Lanrjridge was a case not to be extended in its application; and that if in
that case a friend of the father or sons, by their permission, had used the
gun and sustained the accident, no action could have been maintained by him.
See, where the consignee himself was injured while assisting tlie servants of
the company, Wright v. London and Xortli Western Railway Co., 1 Q. B. D.
252, 45 L. J. Q. B. 570.

In George v. Skivington, L. R. 5 Ex. 1, which was decided upon demurrer,
the action was by husband and wife ; the declaration stated that the defend-
ant was a chemist, and in the course of such business professed to sell a
chemical compound made of ingredients linown only to the defendant, Avhich
he represented to be fit and proper to be used for washing the hair without
injury to the person using it, and to have been carefully and skilfully com-
pounded by himself ; that the defendant sold a bottle to the husband to be
used by the wife as a hair-wash as the defendant knew, and upon the terms
that the same was fit to be used by her without injury, and had been skilfully
and carefully compounded by the defendant. Yet the defendant had so negli-
gently and improperly conducted himself, &c., that by the mere negligence,
&c., of the defendant, the said compound could not be used without personal
injury, whereby the wife in using the same was injured.

It was objected on the part of the defendant that the injury to the wife
being the cause of action, the declaration disclosed no facts which cast upon
the defendant a legal duty towards her, and it was attempted to distinguish
the case of Langridge v. Levy on the ground that in the present case there
was no averment that the defendant knew that the compound was deleteri-
ous. The court held that the declaration disclosed a good cause of action on
the ground that the duty of the vendor towards the purchaser to use ordinary
care in compounding the wash extended to the person for whose use the
vendor knew the compound was purchased. Cleasby, B., is reported to
have said "substitute negligence for fraud and the analogy between Lang-
ridge V. Levy, and this case is complete."

It is a little difticult to extract from the judgments the precise principle
upon which this case was decided, but it is submitted that it may be sup-
ported, if at all, upon the analogy of those cases cited by Parke, B., in the
judgment in Longmeid v. Holliday, in which persons not parties to contracts
may sue for the damage sustained if they be broken : cases in which a wrong
has been done to a person for which he would have had a remedy although no
such contract had been made, as, for instance, where an apothecary who has
supplied improper medicines, or a surgeon who has unskilfully treated a
patient, has been held liable to him for misfeasance, although the father or
friend of the patient may have been the contracting party. See Pippin v.
Shepherd, 11 Price 400; Gladwell v. Sleggall, 5 Bing. N. C. 733; Foulkes v.
Metropolitan District Railway Co., 5 C. P. D. 157, and compare Marshall v.
York, Newcastle, and Berioick Railway Co., 11 C. B. 655, 21 L. J. C. P. 34.
The dictum of Cleasby, B., however applicable to the facts of the case under
discussion, must, it is apprehended, be taken as strictly limited to them,
since it would be difficult to reconcile with Longmeid v. Holliday, the doc-
trine that the mere omission to use ordinary care in the manufacture of a
chattel could, in the absence of fraud or knowledge of the defect, render the
vendor liable to third persons not parties to the contract, although he was
aware that the chattel was designed for their use; see Winterbottorn v.

13:^4 I'ASLKV V. lUKK.MAN.

Wriijht, sup., Lotifjmi'itl v. JIiillulit>j, sup., aiul im-ri' no;;li<;t'iu-(' and fraiitl can-
not fonsistontly witli tliosc- decisions bo treiittMl as convertible terms in
such cases.

For a case sliowinj; wiiat tleijri'e of connection It is necessary to estal)Hsh
between the nejflijjent person anil the person Injured, see (.'ollin v. Selden, L.
U. 'A C. P. 495, with which case compare Parry v. Smith, 4 V. V. I). .•J'i.'i.

Since the last edition of tills work, the principle involved in these cases
was attain much discussed in the recent case of Ilfuvfii v. I'fiider, '.» (j. H. I).
•MYl; II Q. B. I). '>!):$; J2 L. .1. Q. B. 702. In that case the plaintiH", a painter,
met witli an accidi'ut tlirou;;h the defective condition of the ropes support-
in?; a stuije upon which lie was standini; while paintini; a ship lyiui; in dock.
The stajje was supplied by the dock owner under a contract with the ship-
owner, l)y whom the plaintitt' was employed. There was evidence that the
tlefendant hail not taken reasonable care as to the condition of the ropes at
the time when he supplied the staije. Judgement havin<r l)een ^Iven for the
plaintitt' in the county court, the divisional court (Field and Cave, .1.1.) set it
aside, and ;;ave judgment for the defendant, hoUlinij that on the facts tliere
was no relation of contract or duty between the piaintitf and the defendant,
wlio had not, as in Litn<in<l<jf v. Linj, l)een K>''lty of fraud or of a breach of
duty to tell the truth, and who ditl not come uiuh-r the rule as to pi-rsons
wlio invite others to use thi-ir property, inasmuch as he had ceased to have
any control over the stajje after he parted with it to the shipowner. They
treated (ieortje v. Skirinijtnn as in point, but as Inconsistent with Wiutftlinttmn
V . W riijht a.\v.\ I.iiHijmiid v. IlnUiilnij, which latter cases they preferred to follow.
Tills ilecision was reversed on appeal, but with a ditt'erence of opinion ainon^
the Lords .Justices. Brett, M. U., after an elaborate examination of the au-
thorities, in which he treats (it'orije v. Skiviiuitntt, as well decided, tleduces from
them the followiiiii proposition, which he lays down as coverins; and reconcil-
inu; tliem all " that whenever one person is by circunistaucos placed in such a
jxisition witli regard to another that every one of ordinary sense who did think
would at once recojiuize that if he «lid not use ordinary care and skill in his
own coiuluct with regard to those circumstances he would cause danger of in-
jury to the person or property of the other, a duty arises to use ordinary care
and skill to avoid danger." He was, however, further of opinion that the case
fell within the narrower proposition, which atTlrms the duty of the inviter
towards the person inviteil to take reasonable care. Cotton, L. J., in a judg-
ment in which Bowen, L. J., concurred, declined to adopt the larger proposi-
tion aijove set out, instancing Lmif/ridtje v. Levy, Blnkemore v. Bristol and
Exeter Rail. Co., CuUis v. Selden, and Linnjmeid v. /lolUd'i;/, as ca.ses in which
it was inipliedl.v negatived. He heUl, however, that when ships were received
into dock for repair, and provided with stages for the work on them wliicli
was to be executed there, all those who came to such ships for the purpose
of painting and otherwise repairing them, were there for business in which
the dock owner was interested, and must be considered as invited by the
dock ow'uer to use the dock and all appliances provided by him as incident to
the use of the dock. That he would not be responsible for defects arising
through the neglect of those who took the control of the stage after he
parted with it, but that in the case before them the defect which caused the
accident existed at the time when the stage was provided by the dock owner.
(See also Elliott v. Hall, 15 Q. B. D. 315 ; 54 L. J. Q. B. 518.) In dealing with
Georr/e v. Skivington, Cotton, L. J., expresses no disagreement with the divis-
ional courts ; on the contrary, he says it seems to support the general propo-

PASLEY V. FREEMAN. 1325

sition which he denies to be law, and that Cleasb3% B., had for the purposes of
that action treated the negligence of the defendant as equivalent to fraud,
which he regarded as the ground upon which Langridge v. Levy was decided.

The general rule that a person who is no party to a contract cannot sue in
respect of damage resulting to him from the breach of it is well illustrated
by the case of AUon v. The Midland Railway Company, 19 C. B. N. S. 213,
where a master sued a railway company for neglect of duty in carrying his
servant, Avhej-eby the latter was injured, and the master lost the benefit of
his services. The court however held that the injury had resulted from a
breach of duty arising out of a contract, that the mode of declaring could not
aflect the liability of the defendants, and that the master, being no party to
the contract, could not sue in respect of damage caused by a breach of it.
See further Goslin v. Agricultural Hall Co., 1 C. P. D. 482; Cattle v. Stockton
Waterworks, L. R. 10 Q. B. 453.

Where, however, the defendant, a gasfitter employed by the plaintifi''s mas-
ter, left his Avork in such a condition as to be dangerous to a person approach-
ing it with reasonable caution, the plaintift", having been injured while so
approaching it, was held entitled to recover. In this case there was a duty
upon the gasfitter, wholly independent of contract, to take proper precau-
tions to prevent a thing dangerous in itself from causing damage to any per-
son lawfully approaching it. Parry v. Smith, 4 C. P. D. 325.

The rules deducible from Langridge v. Levy as to liability for representa-
tions are elaborately discussed by Wood, V.-C, in his judgment in Barry v.
Croskey, 2 J. & H. 18-23, cited with approval by Lord Cairns in Peek v. Gur-
ney, L. R. 6 H. L. 412.]

General acceptance of the principal case in the United States.
— The action to recover for a fraudulent representation of
another's solvency is but an instance of the action for deceit.
Where all the necessary elements concur, it is now generally
recognized that the action will lie notwithstanding the objec-
tions which were urged against it. In the majority of cases the
question of the defendant's liability for a fraudulent misrepre-
sentation has not been raised, but it has been assumed that he
is liable provided the necessary elements concur. The cases
are numerous, however, in which the question whether the
action will lie has been discussed. In Upton v. Vail, 6 Johns.
181, the defendant, who had a judgment bond against one
Brown, and knew him to be worthless, nevertheless recom-
mended him to plaintiff as being " as good as any man in the
county " for the price of the, goods plaintiff was to sell him.
After plaintiff had made the sale, the defendant entered judg-
ment, and under execution levied on the goods sold to Biown
by plaintiff. Kent, Ch. J., delivered the opinion of the court,
in which he said: ''We have never expressly decided in this
court that the action would lie. . . . The case of Pasley v. Free-

loJO I'ASLKV V. I'ltKKMAN.

man, decided in tlie K. H. so lute us the year 17.S9 ... is the
fust direct authority, iu the Euglislj courts, in support of tlio
action. I liave carefully examined the reasoning of the judges
in that case, and in the sul)sequent cases, which g«) to questicni
or sujUjort the soundness of that decision; and I profess luy
ai)i)rol)ation of tlie doctrine on which it was decided. Tiie case
went not upon any new ground. Imt upon the application of a
princii)le of natuial justice, long recognized in the law, tiiat
fraud or deceit, acconi[)anicd with damage, is a good cause of
action. This is as just and permanent a principle as any in our
whole jurisprudence." And again : " liut independent of the
English cases, I place my opinion upon the i)road doctrine that
fraud and damage coupled together will sustain an action. This
is a princi[)le of universal law." In Connecticut the cases of
Wise V. Wilcox, 1 Day 22, and Hart v. Tallmadge, 2 Day :5Sl,
follow I'asley f. Freeman. In Kidney v. Stoddard, 7 Met. 2r)2,
it was said that : '' From the tiuu; of the judgment in the great
case of Pasley i\ Freeman to the pn-sent day, through the long
line of decisions hoth in ICngland and .Vnu-rica, the principle of
that lase, though wilii some statute modilications, remains
unshaken and unimpaired." .\nd the (luestion was discussed
and the Entrlish cases followed in N'ermont in l-^wius v. Calhoun,
7 Vt. 70, and Weeks v. Burton, 7 Vt. (17 : and in Pennsylvania
in Boyd's Executors v. Browne, <> Pa. St. olO. Decisions in
other states will be found in Endsley v. Johns, 120 111. 4»J9;
McKown /•. Furgason, 47 la. 036; Chisolm v. (iadsden, 1
Strol). 220.

What must be proved to maintain the action. — In Busterud v.
Farrington, oti Minn. o2(>, tlie essentials of the action for deceit
were laid down: "An action for deceit lies against one who
makes a false reprcscntatit»n of a material fact susceptible of
knowledge, knowing it to be false, or as of his own knowledge
when he does not know whether it is true or false, with inten-
tion to induce the person to whom it is made, in reliance ui)on
it, to do or refrain from doing something to his pecuniary hurt,
when such person acting with reasonable prudence is thereby
deceived and induced to so do, or refrain, to his damage."

The representation must be false Twhen made. — Unless the state-
ment be false, no action will lie : and the question of the truth
or falsity of the representation must be determined by the facts
as they were when the representation was made. A change in

PASLEY V. FREEMAN. 1327

the condition of affairs, subsequent to the time of making the
representation, cannot affect the liabiUty of the person making
it ; Corbett v. Gilbert, 24 Ga. 454. And it seems the defendant
is liable for a fraudulent misrepresentation, even when at the
time the plaintijEf acted in reliance on the representation, the
statement was true, if it was false when made ; Reeve v. Den-
nett, 145 Mass. 23, 30.

Falsity may consist in suppression of the truth, or the assertion
of a falsehood. — The false representation may consist in the
suppression of the truth, as well as in the assertion of a false-
hood ; Allen v. Addington, 7 Wend. 9. In Kidney v. Stoddard,
7 Met. 252, the defendant had concealed the fact that the per-
son he recommended was a minor. The judge instructed the
jury that when a party intentionally conceals a material fact, in
giving a letter of recommendation, it amounted to a false repre-
sentation. On motion for a new trial the charge was held to be
correct. See, also, Tryon v. Whitmarsh, 1 Met. 1 ; Boyd's Exec-
utors V. Browne, 6 Penn. St. 310 ; Decker v. Hardin, 5 N. J.
579 ; Bokee v. Walker, 14 Penn. St. 139 ; Chisolm v. Gadsden,
1 Strob. 220 ; Rheem v. Naugatuck Wheel Co., 33 Penn. St.
358. In Chisolm v. Gadsden, it was held that a misrepresenta-
tion need not consist in words " but that on the contrary, such
a fraud as sustains the action in question may grow out of
deeds as well as words," Lobdell v. Baker, 1 Met. 193. But
while one can commit a fraud by mere silence, a deception
implies some act or language.

The representation must be of a fact. — The representation must
be of a fact; Buschman v. Codd, 52 Md. 202; Ins. Co. v. Reed,
33 Ohio St. 283 ; and the cases lay down very generally that an
opinion is not a fact within the meaning of the law. It is said,
" If any one relies on mere opinion instead of ascertaining facts,
it is his own folly ; " Sieveking v. Litzler, 31 Ind. 13 ; Fulton v.
Hood, 34 Pa. St. 365 ; Tuck v. Downing, 76 111. 71 ; Crown v.
Carriger, 66 Ala. 590 ; Starr v. Bennett, 5 Hill 303 ; Belcher v.
Costello, 122 Mass. 189 ; Buschman v. Codd, 52 Md. 202 ; Gordon
V. Butler, 105 U. S. 553. It is probably safe to say, however, that
as the rule is generally stated, it rests on no logical basis, and
does not represent the law. The state of one's mind on a sub-
ject is a fact, and it is immaterial whether it be in regard to a
subject capable of positive knowledge, or in regard to one on
which only an opinion can be entertained; and the state of the

1328 PASLEY V. IK 1.1. MAN.

defendant's mind in reference to his Ixjlief in the truth of the
statt'UU'nt made hy him, ii.s will appear helow, i.s the ti'st of his
liiil)ility. As rej^ards the form of the statement, it is ohviously
iimiialt'i ial whether the defendant says: "Such is my opinion ;"
or, "such is the fact." In eitlier ease the speaker is understood
to he e.xpre.ssing his opinion merely, and the statement that a
fraudulent misrepresentation i>f an opinion creates no liahility,
has no reference to the form of the words, hut only to tlie sub-
ject-matter. 'I'he rule is su|>posed to apply to cases in which a
statement is made, re^Mrdin^; the tiulh of which the person
njakin^ it can have n<» alxsolute knowledge. In this class of
casrs the defendant must state his U-lief trutiifully, or lie is
liahlc if damage ensue to the plaintiff. A different rule ap[)lies
to statements made hy persons who are alK)ut to contract witli
each other. The consideration of the reason for this excei)tion
must, for the present, he deferred. Hut it is the cla.ss of cases
just mentioned which has given ri.se to the erroneous idea, that
a liahility can not he created hy a fraudulent mi.sstatcment of a
matter of opinion. The cases generally arise lu'twcen vendor
and vendee, where the vendor has overestimated the value of
iiis property; the ri-ason given for exempting the vendor from
rcsponsihility for his misstatements, viz., that the value of proj)-
erty is a matter of opinion, and hence no action will lie, is shown
to he wrong hy the fact that an action will lie against a defend-
ant, not a party to the contract, who expresses a fiaudiUeiit
opinion as to the value; Medbury v. Watson, •) Met. '24it ;
Busterud v. Farrington, 30 Minn. 320. The same idea seems
to have been in the mind of Mr. Justice Field in (Jordon v. But-
ler, 105 U. S. 553, where the defendants had given a certificate
of the value of certain tpiarries. The ease of Pasley v. Free-
man is high authority for the view that a statement of o})inion
as well as of fact, renders the defendant liable for a fraudulent
misrepresentation. A representation of another's solvency must
in the nature of things be an expression of oi)inion, and it was
so held in Belcher v. Costello, 122 ]\hiss. 1<S9, where the judge
says : " The representation proved, as stated in the bill of recei>
tions, was that the parties were good. This, taken by itself, is
not the statement of a fact, but the expression of an opinion
merely ; " Marsh v. Falker, -40 N. Y. 562 ; Doty v. Campbell,
1 How. Pr. N. S. 101. The same view was taken in Savage v.
Jackson, 19 Ga. 305, though it was erroneously supposed that

PASLEY V. FKEEMAN. 1329

that view was inconsistent with the correctness of Pasley v. Free-
man. See, also, Lyons v. Briggs, 14 R. I, 222 ; Jude v. Wood-
burn, 27 Vt. 415. The conclusion to be drawn from the cases
is that the defendant's "opinion" is to be regarded as a fact, for
fraudulently misrepresenting which he incurs a liability. See,
also, Hubbell v. Meigs, 50 N. Y. 480, 489 ; Hickey v. Morrell,
102 N. Y. 454, 463.

A promise is not a representation. — A promise or expression
of intention is not a representation, and the person making it
cannot be held liable as for a deceit, even though he had no
intention of living up to it. Thus where the declaration alleged
that the defendant expressed a willingness to endorse the note
of another, if the plaintiff would sell him a quantity of cotton,
in reliance on which representation plaintiff sold the cotton ;
that defendant was not willing and did not intend to indorse
the note ; and that by reason thereof the plaintiffs were dam-
aged, it was held that there was no ground for an action
for a deceitful representation ; Gallager v. Brunei, 6 Cow. 346 ;
Gage V. Lewis, 68 111. 604 ; Lexow v. Julian, 21 Hun 577 ;
Fenwick v. Grimes, 5 Cranch C. C. 439 ; Farrar v. Bridges, 3
Humph. 566 ; Long v. Woodman, 58 Me. 49 ; Burt v. Bowles,
69 Ind. 1 ; Sieveking v. Litzler, 31 Ind. 13.

Representation of law. — A misrepresentation as to the law
applicable to a given state of facts cannot be made the basis of
an action for deceit; Starr v. Bennett, 5 Hill 303. The reason
given for this is, that as the law is presumed to be equally well
known to all, no one has a right to rely on the opinion of
another respecting it ; Townsend v. Cowles, 31 Ala. 428 ; Steam-
boat Belfast V. Boon, 41 Ala. 50 ; Clem v. Newcastle & Danville
R. R. Co., 9 Lid. 488 : Russell v. Branham, 8 Blackf . 277 ; Ins.
Co. V. Reed, 33 Ohio St. 283 ; Fish v. Cleland, 33 111. 238 ;
Lehman v. Shacklef ord, 50 Ala. 437 ; Reed v. Sidener, 32 Ind.
373 ; Lexow v. Julian, 21 Hun 577 ; Burt v. Bowles, 69 Ind. 1 ;
Gormely v. Gymnastic Association, 55 Wis. 350 ; People v.
Supervisors of S. F., 27 Cal. 655 ; Jaggar v. Winslow, 30 Minn.
263;. Upton v. Tribilcock, 91 U. S. 45. But see Abbott v.
Treat, 78 Me. 121, 126.

The representation must be of a material fact. — A misrepre-
sentation to be actionable must be of a material fact ; Schwa-
backer V. Riddle, 99 111. 343 ; Jordan v. Pickett, 78 Ala. 331 ;
Hall V. Johnson, 41 Mich. 286. "• If false and fraudulent rep-

1330 PASLKY V. niKKMAN,

resentations he ixllt'^fd as tlie j^noiiiKhvoik for avoiding u bar-
gain, it nuist 1)L' shown that, like poison, it entered into, and
mixing with, the vital essenee of it, taint«Ml iind destroyed it;"
Clark V. Hverhart, 03 Penn. St. 347. Still a party who ha.s
effected his purpose through a misrepresentation eannot ordina-
rily deny its materiality, and it will he considered enough if it
might have had a substantial etTect, as one of several induce-
nifiits. It need not have W'cii the sole inducenieni ; James v.
Ilodsden, 47 \'t. 1-7 ; -Jordan r. Vickcit, supnt ; Addington i'.
Allen, 11 Wend. 374: Saff.)rd v. (irout, 120 Mass. liO ; Hale r.
Philinick, 47 i;i. L'17 : Fishbaek v. Miller, 1.") Nev. 428; Winter
V. lian.lel, 30 Ark. 3(12 ; Lebby r. Ahrens, 2t; S. ( '. 27.'). Hut
see Xrwsoni r. .laekson, 2tt (i;i. 24S.

Must be fraudulent as well as false. — Vo render the defendant
liable, the rei)resent.ation must be not only false, but fraudulent.
A mere mistake will not impose any liability upon him. It is
well srttled in this eountry, th.it as f;ir as the class of eases
under consideration is concerned, the defendant must have
been guilty <>f a moral wrong to rendtu- him liable; Cowley /•.
Smyth, 40 N. .1. L. 380. If the defendant states what he knows
to be untrue, or makes a positive representation as of his own
knowledge, when he knows nothing whatever about the matter,
he is guilty of a deceit if the statement be untrue; McKown v.
Furgason, 47 la. 030. The moral element in tlie second class
of cases is to l)e found in the imi»lied assertion that the person
making it has some knowledge ainjut the matter, when in real-
ity he has not. In many of the cases an " intent to deceive " or
"to defraud" is said to be necessary. This does not mean that
the defendant must have intended to injure the i)laintilT. From
the very fact that one makes a misstatement knowingly, and in-
tending that it shall be acted on, an intent to deceive or to de-
fraud is inferred; Cowley v. Smyth, 40 N. J. L. 380; Hudnut
V. Gardner, 59 Mich. 341 ; Endsley v. Johns, 120 111. 409. The
rule is necessarily different where the deceit is alleged to con-
sist in a suppression of the truth. The failure to state all the
facts knowingly does not render the defendant liable, unless
made with a view to deceive the person relying on his repre-
sentation ; Bokee v. Walker, 14 Pa. St. 139.

Statements known to be false. — In Lord v. Goddard, 13 How.
198, the court sav : •' The srist of the action is fraud in the de-
fendants, and damage to the plaintiff. Fraud means an inten-

PASLEY V. FEEEMAN. 1331

tion to deceive. If there was no such intention, if the party
honestly stated his own opinion, believing at the time that he
stated the truth, he is not liable in this form of action, although
the representation turned out to be entirely untrue." To the
same effect, Marsh v. Falker, 40 N. Y. 562 ; Stitt v. Little, 63
N. Y. 427 ; Avery v. Chapman, 62 la. 144 ; Sims v. Eiland, 57
Miss. 83 ; Holdom v. Ayer, 110 111. 448 ; Graham v. HolHnger,
46 Pa. St. 55. In this last case the court say : " Guilty knowl-
edge and an intent to deceive were essential to the plaintiff's
recovery ; " Huber v. Wilson, 23 Pa. St. 178 ; Tucker v. White,
125 Mass. 344 ; Hartford Ins. Co. v. Matthews, 102 Mass. 221 ;
Terrell v. Bennet, 18 Ga. 404 ; Crown v. Brown, 30 Vt. 707 ;
Zabriskie v. Smith, 13 N. Y. 322; Sollund v. Johnson, 27 Minn.
455 ; Schwabacker v. Riddle, 99 111. 343.

Reckless statements. — Representations made in ignorance of
their truth or falsity involve moral turpitude equally with
knowingly false statements. " If the party made the representa-
tion not knowing whether it was true or false, he cannot be con-
sidered as innocent ; since a positive assertion of a fact is, by
plain implication, an assertion of knowledge concerning the
fact. Hence, if a party had no knowledge, he has asserted for
true what he knew to be false ; " Ins. Co. v. Reed, 33 Ohio St.
283, citing Bigelow on Fraud, 61 ; Stone v. Covell, 29 Mich.
359; Woodruff v. Garner, 27 Ind. 4; Fisher v. Mellen, 103
Mass. 503 ; Foard v. McComb, 12 Bush 723 ; Nugent v. C. H.
& I. Street R. R. Co., 2 Disn. (Ohio) 302. This is the rule
laid down in Hartford Ins. Co. v. Matthews, 102 Mass. 221 ;
Beebe v. Knapp, 28 Mich. 53, 76 ; Duff v, Williams, 85 Penn.
St. 490 ; Einstein v. Marshall, 58 Ala. 153. The language used
by the court in Tucker v. White, 125 Mass. 344, goes even fur-
ther, and would seem to make one asserting a fact as of his
own knowledge responsible absolutely for the correctness of
his statement. But this is not a correct exposition of the
law, unless the person making the representation has no rea-
son whatever for his belief on the subject.

No liability for rash or indiscreet statements. — If he has some
reason to believe he knows the facts to be as he states them, he
is not to be held liable simply for being rash or indiscreet;
Young V. Covell, 8 Johns. 23 ; and whether he had sufficient
reason for his belief is not a proper matter of inquiry so long as
there was some foundation for the belief.

1332 PASLEY V. IKF.KMAN.

It is not necessary that there should be reasonable grounds for
the belief expressed. — Jii Dilwoitli v. Unidnfi-, Mr, Juslifo
Sluirswoocl, in discussing the question, siiys : "It would intro-
duce a new and very dunfjeious element into the <jueslion to
say that the jury must decide whether the defendant had rea-
sonable grounds for his belief." Of course, the facts may be so
strong that the defendant could hardly have been mistaken, but
that (lucstion is for the jury. See (irahani v. Ilolliiii^cr, 4() I'enn.
St. 55; McKown v. Furgason, 47 la. G3)». IJut sec Sims r.
Eiland, 57 Miss. 007, scmlde eontrn. in Lord r. (Joddaid, 13
How. (U. S.) lOS, the judge had instructed the jury, that "if
the defendants in the ease did not make the recommendation
upon such authority or information as you may think . . . they
ought to have acted upon, you will charge them." This was
held error. To the same effect is Tryon v. Whitmarsh, 1 Met.
1. The question for the jury is, in fact, as to the good faith of
the defendant ; Cowley v. Smyth, 40 N. .J. L. 3S(). if the tUfciid-
ant had )ut reason for believing in the truth of his statement,
his actual belief is innnaterial where he speaks as of his own
knowledge; Cabot v. Christie, 4:^ \ i. \1\\ i'isher v. Mellen,
103 Mass. 503; Litchfield v. Hutchinson, 117 Mass. 105; Cole
V. Cassidy, 138 Mass. 437; Allen v. Hart, 72 111. 104.

The case of Cowley v. Smyth, xupra, points out a distinction
to be observed, in holding a defendant for a statement as of his
own knowledge, between cases in which the fact re[)resented is
susceptible of knowledge, and cases in which the statement
must, notwithstanding its form, be intended merely to express
an opinion. In cases in which the representation was not false,
to the defendants knowledge, the court say: "The piol)ative
force and effect of the evidence to establish the fraudulent in-
tent wdll depend upon the circumstances of the particular case.
This question is presented in a comj)lex form when the defend-
ant has added to a representation which turns out to be untrue,
but was not false to his knowledge. — -an allirmation that he
made the representation as of his own knowledge. In such
cases the force and effect of the evidence will depend, in a great
measure, upon the nature of the subject concerning which the
representation was made. If it be with respect to a specific fact
or facts susceptible of exact knowledge, and the subject-matter
be such as that the affirmation of knowledge is to be taken in
its strict sense, and not merely as a strong expression of belief.

PASLEY V. FREEMAN.

1333

the falsehood in such a representation Kes in the defendant's
affirmation that he had the requisite knowledge to vouch for
the truth of his assertion. . . . But when the representation is
concerning a condition of affairs not susceptible of exact knowl-
edge, such as representations with respect to the credit and '
solvency of a third person, or the condition or credit of a finan-
cial institution, the assertion of knowledge, as was held in Hay-
craft V. Creasy, ' is to be taken secundum subjecfam materiam,
as meaning no other than a strong belief founded on what ap-
peared to the defendant to be reasonable and certain grounds.'
In such a case the question is wholly one of good faith. The
form of the affirmation will cast the burden of proof on the
defendant ; but when the evidence is in, the issue is Avhether
the defendant honestly believed the representation to be true.
In support of such an issue the defendant may, by way of ex-
culpation, resort to evidence not admissible in actions for other
kinds of deceit. He may, as in Haycraft v. Creasy, give evi-
dence that the person whose ability he affirmed hved in a style,
and with such appearances of property and means, as gave
assurances of affluence. He may give in evidence the informa-
tion he had upon the subject (Shrewsbury v. Blount, 2 M. & G.
475), and show the general reputation for trustworthiness of
the person whose credit he affirmed ; Sheen v. Bumpstead, 2 H.
& C. 193. In fine, he may avail himself of any evidence which
may tend to show good faith or probable grounds for his belief,
leaving the question to be determined, upon all the evidence,
whether his conduct was bond fide, — whether, at the time he
made the representation, he honestly believed that his represen-
tation was true." To the same effect. Page v. Bent, 2 Met. 371.
It is obvious, however, that while a representation as to value
or the solvency of another, no matter how strongly stated, must
remain a matter of opinion, and hence will render the defendant
liable only if not believed by him, or if recklessly made without
any ground whatever for his belief, a representation of this
character may be made in such a form as to justify the inference
that the opinion is based upon facts known to the defendant,
which have led him to the opinion expressed. In such a case,
unless facts of the kind are known to the defendant, he will be
liable in the same way as he would be if the representation had
been of a matter of fact ; Marsh v. Falker, 40 N. Y. 662, pp.
566 et seq. ; Doty v. Campbell, 1 How. Pr. N. S. 101.

1334 PAsi.Kv V. 1 i:i:i:man.

Liability not dependent on a benefit to the defendant. — It is

not lUTi's.sHi V, in t»i»U'r to rt-mliT our liiihlc tor a m is n* presenta-
tion, that he shonkl liave (U'rived a U-nelit from it, or that ho
shouhl have actually intemled to <letiau«l the plaintitT; I'atteli
V. (Jnrney, IT Mass. iMl ; Sehwenk r. Naylor, lO'J N. V. Gm:J ;
IJoyd's 10xeeut(trs v. Browne, ♦) I'enn. St. 'MiK '" N«> motive for
a representation whieli is false ami may ))<■ injurious ean l)e
good; and a lie to help a frien<l is not the less ix lie lieeause it
is not designed to injure the person to whom it istohl; it is
enough to stamp it with the character of actual fraud, that it
may lend him to a lisk whi«-h he would otherwise shnn ;" Hokeo
r. Walker, 14 Penn. St. i:i'.>; Allen v. Addington, 7 Wend. 0,
2-2; Patten r. (lunu'y, 17 Mass. Isii; Hart r. Tallmadge, "J Day
3M1 ; i:nd>lcy r. .lohns, 120 111. 4t;:>; Cowley v. Smyth, 4«; N. .1. L.
3S0. If the defendant int»'n<lcd to derive a U-netit from the
mi.srepresentation, the courts are much more inclined to regard
it as fraudulently made than where there is no such intention,
and they will not always insist in siuh cases on proof of the
defendant's knowledge of the falsity of his statement ; lieelie r.
Knapi>, lis Mich. 53, 7G.

Who may sue. — ( )ne who makes a misrepresentation must,
to render himstdf liable, have ma<le it with the intention that it
shall he acted on, hy the person to whom it is made, or to whom
he intended it should he lommunieated, and he is therefore
responsible to such persons oidy, as it was intended for. " When
statements are made for the express purpose of influencing the
acti«>n of another, it is to be assumed tliey are made dclil)er-
ately and after due inquiry, and it is no hardship to hold the
l)arty making them to their truth. But lie is morally account-
able to no person whomsoever but the very person he seeks to
influence, and whoever may overhear the statements and go
away and act upon them can reasonably set up no claim to
having been defrauded if they prove false ; " Cooley on Torts,
* 493 ; Rawlings v. Bean, 80 Mo. 614.

It was accordingly held in McCracken v. West, 17 Ohio 1(3,
a case in which the defendant had addressed a letter of recom-
mendation to one person which had been presented to and relied
on by another, that the latter had no right of action. But a rep-
resentation may be made with a view to its being acted on by
any one of a class, and to recover in such a case the plaintiff
need only bring himself A\athin the class ; Allen v. Addington,

PASLEY V. FREEaiAN. 1335

7 Wend. 9 ; same case on appeal, 11 Wend. 374 ; Clopton v.
Cozart, 13 Sm. & M. 363 ; Carvill v. Jacks, 43 Ark. 454. It is
immaterial whether the statement be made directly to plaintiff
or to a third person with the intent that he repeat it to the
plaintiff; Watson v. Crandall, 78 Mo. 583. It is on these prin-
ciples that a person making a false and fraudulent statement to
a commercial agency, for the purpose of having it communicated
to any one interested in his pecuniary responsibility, renders
himself liable to any inquirer who relies on the report based on
his statement; Eaton v. Avery, 83 N. Y. 31; Genesee Co.
Savings Bank v. Michigan Barge Co., 52 Mich. 164 ; Holmes v.
Harrington, 20 Mo. Appeals 661; Macullar v. McKinley, 49
N. Y. Super. Ct. 5 ; aff'd. 99 N. Y. 358 ; Goodwin v. Goldsmith,
49 N. Y. Super. Ct. 101.

In Williams v. Wood, 14 Wend. 126, it was held that where
the defendant gave a recommendation to an insolvent, he was
liable to any one that relied on it to his injury, and that the
defendant could not show that it was given to enable the per-
son recommended to make a particular purchase. The decision
may be regarded as correct on the ground that the recommen-
dation was a general one on its face, and there was nothing to
lead plaintiff to believe that it was not intended for him as well
as for another. This distinguishes the case from McCracken v.
West, supra. But in Addington v. Allen, 11 Wend. 374, at
p. 383, Chancellor Walworth queries whether a person giving
a false recommendation can be made liable to any one except
the person for whom the recommendation was intended.

Plaintiffs reliance on representation. — The plaintiff in order to
recover for the deceit must prove that he acted in reliance on
the representation; Nye v. Merriam, 35 Vt. 438; Hagee v.
Grossman, 31 Ind. 223 ; Humphrey v. Merriam, 32 Minn. 197 ;
Runge V. Brown, 37 N. W. Rep. (Neb.) 660. If he was cogni-
zant of the falsity of the representation, or did not believe it,
he cannot recover, for in that case he has not been deceived ;
Clopton V. Cozart, 13 Sm. & M. 363 ; Proctor v. McCoid, 60 la.
153 ; Nelson v. Luling, 62 N. Y. 645 ; Bowman v. Carithers, 40
Ind. 90 ; Anderson v. Burnett, 5 Miss. 165 ; Edick v. Crim, 10
Barb. 445 ; and the plaintiff must prove affirmatively that he did
believe the statement and relied on it ; Humphrey v. Merriam,
32 Minn. 197 ; therefore if the plaintiff investigated the facts
concerning which the representation was made, he cannot be

ItJSG iA>t.i.\ \. I i:i:i:.MAN.

siiicl to luive rt'lit'<l on ihr ivpreseiitutioii, aiul caiiiu>t reoover;
Iliigee r. ( Jrossinaii, ol Iiul. --">; Poland r. lirowiU'll, l-'H Mass.
13H; Tuck r. Downin*,', Tti 111. 71 : AikI.tsoii r. Me Pike, MO Mo.
293. 11 tlu' (left'iulant has niadf a niisifpifsfiitatiun, luul ha.s
also givon a wananty, hu is not liable for the deceit if the jdaiii-
tift' relied on the wananty, and not on the lepresentations ;
Iloldoni r. Ayer, 110 111. 44H ; Humphrey r. Merriam, 3:i Minn.
l'J7 ; nor is he liable if the plaintitY was not induced by tlie rep-
resentation to act. in Minj^ v. \Voi)lfolk, 110 V. S. 51>l), it
appeared that the plaintiff would havt* acted as he did in the
absence of any iepresentati<»n on the part of tlu' di-fciid.iMt. and
lie was therefore not allowed to recover. It is not lu'ccssary,
however, as stated ttii/mi, that the false representation shoid<l
have been the sole inducement that influenced the plaintitT; if
it inlluenced his comhut materially, he «-an recover. Where
the person deeeiveil has learned of the falsity of the statements
made, l)efore the completion of his negotiations, and while he is
still at lilxuty to withdraw, he cannot hold tlu' defendant for
the misrepresentation; Whitini,' '•. Hill, '2'\ Mich. *i*.»!» ; Vernol
r. Vernol, '58 N. Y. 4").

Not every representation may be relied on. — There an* many
eases in which the person deceived cannot recover, for the rea-
son that common prudence should have taught him to distrust
the statement made to him, i-ithcr because of the form in
which it was made, or because of the relations between himself
and the person making the statement. If the statement iw
made implies that the speaker has doubts of its correctness, or
if in any other way the person to whom the representation is
made, is put upon imiuiry, he must not rely on the representa-
tion.

"Dealer's talk." — A person who is negotiating with another
must not put entire confidence in the statements which are
made to him. He knows that it is to the interest of the i)erson
with whom he is dealing to drive as good a bargain as he can,
and lie must guard against being misled. Tlie courts have
always permitted what is known as "dealer's talk." It is a gen-
eral rule that as between parties who are negotiating, an expres-
sion of opinion as to the value or utility of an article to be sold,
or as to the advantage to be derived from making the contract,
will not render the person making it liable. The uniformity of
the decisions to this effect has given rise to the erroneous im-

PASLEY V. FKEEMAN. 1337

pression that a person can in no event be held liable for a fraud-
ulently false opinion. But this class of cases goes entirely on
the ground that the person deceived had no right to rely on
statements made by one whose interests were antagonistic to
his. The cases in which this has been held are not confined to
those in which there has been an expression of opinion. Many
cases in which facts have been misrepresented, with a view to
deceive, have held the purchaser to be remediless. There is
much conflict in the authorities as to what misstatements of
facts are actionable ; but none where there has been merely an
expression of opinion.

Statements as to value. — That a statement of the value of
property made by the vendor to the vendee must not be relied
on, is uniformly held ; Ellis v. Andrews, bQ N. Y. 83 ; Bristol
V. Braidwood, 28 Mich. 191 ; Sieveking v. Litzler, 31 Ind. 13 ;
Anderson v. McPike, 86 Mo. 293 ; Walker v. Mobile, &c., R. R.
Co., 34 Miss. 245 ; Medbury v. Watson, 6 Met. 259 ; Hunter v.
McLaughlin, 43 hid. 38 ; Kimball v. Bangs, 144 Mass. 321 ; cf.
Chrysler v. Canaday, 90 N. Y. 272 ; McAleer v. Horsey, 35 Md.
459.

In Ellis V. Andrews, supra, Judge Grover says : " Upon the
question of value the purchaser must rely upon his own judg-
ment, and it is his folly to rely upon the representation of the
vendor in that respect; but in regard to any intrinsic fact
affecting the quality or value of the subject of the contract, he
may rely upon the assurances of the vendor, and if he does so
rely and the assurances are fraudulently made to induce him to
make the contract, he may have an action for the injury sus-
tained." The distinction pointed out between a bare statement
of the value, and statements of fact by which the vendor seeks
to show the correctness of his opinion, is generally acknowl-
edged ; Sieveking v. Litzler, 31 Ind. 13 ; Grim v. Byrd, 32
Gratt. 293 ; McAleer v. Horsey, 35 Md. 439 ; Stewart v. Stearns,
63 N. H. 99 ; Weidner v. Phillips, 39 Hun 1. An opinion as
to the productiveness of land will not lay the foundation for
an action ; Mooney v. Miller, 102 Mass. 217 ; Gordon v. Par-
melee, 2 Allen 212 ; nor as to its quality ; Sherwood v. Salmon,
2 Day 128.

But if the seller induce the buyer not to make inquiries as to
the value, he may be liable for a misrepresentation of value ;
Hanger v. Evins, 38 Ark. 334 ; Weidner v. Phillips, 39 Hun 1 ;

liJii8 I'ASLKY v. KICKKMAN.

Stewart v. Stearns, 03 N. II. i>9. So if the value of the thing
sold c'lm only he known to experts, the pureluuser may rely on
the value exi)re.ssi(l l»y the seller, if he is a dealer in sueh goods;
Pieard r. .M(( Ornutk, U Mieh. 08 ; Kost r. Bender, 2.> Mich,
f)!.'); Il;iML,Mr V. ICvins, liH Ark. •VAA : McKt'c i\ lCatt)n, 20 Kas.
220; <■/. Alien i\ Hart, 72 111. 104. An cvaininatinn of the
cases in whirh n)is.statenients ni /net have l>een niatlr, shows them
to l)e in direct eoidliit with eaih other. In some lases it is held
that an action will lie for a fraudulent statement of the nundier
of acres which a piece t>f land contains; Whitney v. Allaire, 1
N. Y. aOf); Ileardsley c. Dunlley, OH N. V. .•)T7 ; Starkweather
r. Benjamin, ;J2 Mich. oO."> ; Coon r. Atwell, 40 N. II. olO ;
Sancrster r. I'rather, 34 Ind. 004; Hill r. lirower, 7«; .N ( . 124;
while olluT cases sujtpoit tlieopjiosite vii'W ; (inrdon r. I'armelee,
2 Allen 212; Mo..niy '•. .Miller, 102 .Mass. 217; Credle v.
Swindill, «;:} N. ('. 30.'). In Slierw(.od v. Salmon, 2 Day 128, it
was held that a fraudidciit representation by the vendor of the
situation of the land creat»-d no liahility, even if the vendee had
no o[)[)ortunity of examination.

It is hi'ld in s(»me cases that a statement of the price {)aid by
the vt'udor for what he is selling iloes not ien<ler him liable if
false and fraudident ; Ilolbrook v. Connor, 00 Me. .')78 ; Bishop
V. Small, (!3 Me. 12; Cooper r. Lovering, lOO Mass. 77 ; Med-
bury r. Wat.son, Met. 240; Mooney v. Miller, 102 Mass. 217;
while the contiary is held in Ives v. Carter, 24 C'onn. 392;
]\IcFadden r. Hobison, 3") Ind. 24; (Jreen v. Bryant. 2 Kelly
60; Van Epps /-. llarri-^on, ."> Hill 63; McAleer v. Hoi*sey, 35
Md. 430; Somers v. Ilichards, 4(» \'t. 170. The difference here
may be due to the view the courts take of the materiality of
such a statement.

No action unless damage. — No action will lie unless the
plaintiff can prove liis ilaniages ; Ming v. Woolfolk, 110 U. S.
699; Freeman v. McDaniel, 23 Ga. 354 ; Fuller v. Ilodgden, 25
^le. 243 ; Danforth v. Cushing. 77 Me. 182 ; Runge v. Brown,
37 N. W. Rep. (Neb.) 000 ; W^emple i'. Hildreth, 10 Daly 481 ;
Byard v. Holmes, 34 N. J. 290 ; Nye r. Merriam, 35 \'t. 438.

Liability of directors for fraudulent prospectus. — " llie direc-
tors of a company who knowingly issue or sanction the circu-
lation of a false prospectus, containing untrue statements of
material facts, the natural tendency of which is to mislead and
deceive the community, and to induce the public to purchase

PASLEY V. FREEMAN. 1339

its stock, are responsible to those who are injured thereby ; "
Morgan v. Skidcly, 62 N. Y. 319 ; Terwilliger v. Great West.
Tel. Co., 59 111. 249 ; Cross v. Sackett, 6 Abb. Pr. 247 ; cf. also
Fenn v. Curtis, 23 Hun 384; Booth v. Wonderly, 36 N. J. L.
250 ; Paddock v. Fletcher, 42 Vt. 389. The officers of a corpo-
ration are liable in the same manner for publishing a false report
of the condition of the corporation, to any one injured by rely-
ing on the same ; Morse v. Swits, 19 How. Pr. 275.

Statement of one's own solvency. — There remain for consid-
eration some questions in regard to the action for fraudulent
representations of solvency. It is held in some cases that, as
between contracting parties, a statement by one of his solvency
is not a representation on which the other can rely ; Lyons v.
Briggs, 14 R. I. 222 ; Jude v. Woodburn, 27 Vt. 415. But such
a statement regarding one's own solvency is to be regarded as a
statement of facts, and the better view would seem to be that
an action will lie in the case mentioned.

Meaning of " solvency." — A representation of solvency means
that the debtor is able to meet all his obligations, not merely
the one incurred on the strength of the representation ; Daniels
V. Dayton, 49 :\Iich. 137 ; McKown v. Furgason, 47 la. 636. It
does not mean that the debtor has sufficient property subject to
execution to meet all his obligations ; McKown v. Furgason,
supra; Einstein v. Marshall, 58 Ala. 153.

It is not essential to the maintenance of the action, that a
judgment should have been obtained against the debtor and
execution issued against his property ; Winter v. Baudel, 30
Ark. 362 ; nor is it necessary, in fact, that an action should have
been brought for the collection of the debt before suing for the
deceit ; Kidney v. Stoddard, 7 Met. 252 ; cf. Weeks v. Burton,
7 Vt. 67 ; Tryon v. Whitmarsh, 1 Met. 1.

Rule of damages. — Where one has parted with property on a
fraudulent misrepresentation of the vendee's solvency, the true
measure of damages would seem to be, not the price agreed to
be paid, but the value of the property at the time of the sale, not
exceeding the price agreed on ; Crews v. Dabney, 7 Littell
(Ky.) 278 ; cf. Spikes v. English, 4 Strobh. 34 ; Home v. Wal-
ton, 117 111. 141 ; but vld. Sibley v. Hulbert, 15 Gray 509.

Objections against Pasley V. Freeman. — The objections which
have been urged against Pasley v. Freeman have been, (1) that
the allowance of the action involves a violation of the principle

1340 PASLKY V. rUKK.MAN.

of the Statute of Fnuuls ; (li) ili;it the representation of the
linancial responsibility of another is not a matter suseeptil>le of
knowledge, and must in the very nature of things lie hut the
expression of a matter of oj)inion. The latter ohjection has
been dealt with already.

The Statute of Frauds does not apply. — The objection that the
case comes within the spirit of the Statute of Fraiuls is clearly
untenable. That deals exclusively with contraets, while tins
action is founded on tort, and a recovery in this elass of eases
does not prevent the plaintiff reeovering anew from the debt«)r;
Wise V. Wilcox, 1 Day 22; IJoyd's Kxeentors r. lirowne, I*»'nn.
St. 310. In Upton V. Vail, «; .Johns. iMl, Kent, ('. .1. «lealing
with this objection, says: "This, I apprehend, is an objection
arising from public policy and expediency; for it is certain that
the Statute of Frauds as it now stands has nothing to do with
the case."

Statutory enactments requiring the representation to be in vrrit-
ing. — This view is universally accepted, and in accordanie
with the idea that the case comes within the mischief of the
Statute of Frauds, tliat h;is been cxti'iided by enactment to
cover the action for misrepresenting another's financial condition.

The following states have provisions recjuiring repiesenta-
tions concerning the credit of another to be in writing, in order
to bind the person making them; Alabama (Code, § 1734);
California (Ilittcll's Cod. § 111»T4) ; Idaho (Rev. Stat. § 0011) ;
Indiana (Rev. Stat. § 4VM)0) ; Kentucky (Gen. Stat. chap. 22,
§ 1) ; Maine (Rev. Stat. 1883, chap. Ill, § 3) ; Massachusetts
(Public Stat. chap. 78, § 4); Michigan (How. Annot. Stat.
§ 6188) ; Missouri (Rev. Stat. 1870, § 2515) ; Oregon (Anno-
tated Laws, § 786) ; South Carolina (Gen. Stat. 1882, § 2024) ;
Utah (C. Civ. P. § 1210); Vermont (Rev. Laws 1880, § 983);
Virginia (Code, § 2840, 1) ; West Virginia (Amd. Code 1884,
§ 98, 1) ; Wyoming (Rev. Stat. 1887, § 1249, 6).

Application of the statute. — But notwithstanding the statute,
it is held in Kentucky that in "any case of actual fraud, in wan-
tonly misrepresenting a man's credit," there need be no writing
any more than in case of any other kind of fraud in fact ; and
that it is "not actually fraudulent to afifirm absolutely as true
that which the asserter believes to be true. The mains animus
is the essential and distinctive element of actual fraud;" Warren
V. Barker, 2 Duv. 155 ; cf. Ball v. Farley, 81 Ala. 288.

PASLEY V. FREEMAN. 1341

In Massachusetts, on the other hand, it is hekl that the stat-
ute applies so long as the intent is to induce the plaintiff to
give credit to a third party ; Mann v. Blanchard, 2 Allen 386 ;
Wells V. Prince, 15 Gray 562 ; Kimball v. Comstock, 14 Gray
508 ; and it is immaterial that the defendant had an ulterior
motive in making the misrepresentation, and expected to derive
a benefit from the plaintiff's giving the credit. In Kimball v.
Comstock, siqv'a, the defendant had induced plaintiff to sell to
the debtor, with a view of satisfying a demand held by the defend-
ant against the debtor, out of the goods sold. Yet it was held to
be within the statute. To the same effect are Mann v. Blan-
chard, supra ; Wells v. Prince, supra ; Cook v. Churchman, 104
Ind. 141 ; Hunter v. Randall, 62 Me. 423. But the statute will
not apply unless the representation is made with a view to
induce the plaintiff to give credit to another. Where, there-
fore, the defendant represented the maker of a note held by
him to be solvent, and thereby induced plaintiff to accept it as
collateral security for a debt owing by defendant to plaintiff,
the statute was held to have no application ; Belcher v. Costello,
122 Mass. 189. In Michigan the statute was held not to apply
in a similar case ; Huntington v. Wellington, 12 Mich. 10. See,
also, Lenheim v. Fay, 27 Mich. 70 ; cf. St. John v. Hendrick-
son, 81 Ind. 351.

In Bush V. Sprague, 51 Mich. 41, it was held that, in an
action for conspiracy, the statute did not prevent parol repre-
sentations of another's solvency, being put in evidence to prove
the conspiracy. The case of Cook v. Churchman, 104 Ind. 141,
is apparently in conflict with this.

These statutes of doubtful expediency. — The policy of these
statutes may well be doubted. In Ewins v. Calhoun, 7 Vt. 79,
the court say : " That the evidence of contracts which require
mutual consent should be required to be in writing, or have any
other prescribed formalities, is practicable at least, and may be
useful. But that the proof of facts which constitute fraud or
crime should be so privileged, would exempt most offenders.
To undertake to prevent fraud, by supposing all verbal com-
munications false, would destroy all confidence in business and
in society."

DOE d. KK.iGE V. BELL.

,\/fc/f —:]i GEO. 3.

[UKroltTK.I» !"> T. It. 471.]

If a landlord lease for Hfren i/fiin< /-// parol, and ar/ree that the
tenant shall enter at Ladif-ility, and <juit at Candlemas, thouijh
the lease be void by the Statute of Frauds as to the duration of
the term, the tenant holds under the terms of the lease in other
respects ; and therefore the landlord can only put an end to the
tenancy at Candlemas.

Tui^ ejt'ctmeiit was on the demise of T. Hippie, puiinliaii of
IL ami M. \\\'j!;<j;v, infants. At the trial at the hist a.ssi/es at
York, before the Lord Chief Baron, it ajtpeared, that in January,
1790, Wilkinson, as ai^'cnt for the le.s.sor of the plaintiff, let the
farm in question, ealled IIa<.(ue\s Farm, to the defendant for
seven years, by parol. The defendant was to enter when the
former tenant quitted, namely, on the land at old Lady-day,
and the house on the 25th of May following; and he was to
quit at Candlemas. The defendant entered accordingly, and
paid rent. A notice to quit at Lady-flay last was .served on the
22nd of September, 1792. It was also proved that both the
daughters of the lessor of the plaintiff were above fourteen.

The defendant's counsel objected, first. That the notice to
quit was insufficient ; the holding being from Candlemas, and
the notice requiring the defendant to quit at Lady-day ; 2ndly,
That the lessor of the plaintiff claimed as guardian in socage
to his daughters, who were both above the age of fourteen.
And the plaintiff was nonsuited.

Chambre, on a former day, obtained a rule, calling on the
defendant to show cause why this nonsuit should not be set

1342

DOE D. KIGGE V. BELL. 1343

aside. As to the first objection, he said, this was a hohling from
Lady-day, and that, therefore, the notice to quit was regular ;
and, as to the second, he produced an affidavit, in which it was
stated that one of the daughters of the lessor of the plaintiff
was under fourteen years of age.

Coclcell, Serjeant, and Walton, were now to have shown cause
against the rule ; but

Law, Cliamhre, and Barrow, were desired to answer the first
objection ; as to which they argued, that as that agreement for
seven years was void by the Statute of Frauds, it being by parol,
the defendant must be considered as tenant from year to year,
that year commencing at Lady-day, when he entered ; and that
consequently the notice to quit at Lady-day, served more than
half a year before, was regular.

Lord Kenyon, C. J. — Though the agreement be void by the
Statute of Frauds as to the duration of the lease, it must regu-
late the terms on which the tenancy subsists in other respects,
as to the rent, the time of the year when the tenant is to quit,
&c. So where a tenant holds over after the expiration of his
term without having entered into any new contract, he holds
upon the former terms. Now in this case it was agreed that
the defendant should quit at Candlemas ; and though the agree-
ment is void as to the number of years for which the defendant
was to hold, if the lessor chose to determine the tenancy before
the expiration of the seven years, he can only put an end to it
at Candlemas. Rule discharged.

See Richardson v. Gifford, 1 A. & E. 52 ; Beale v. Sanders, 3
Bing. N. C. 850.

[This and the succeeding case, with tlie notes tliereto, are retained in tliis
edition, notwithstanding the case of Walsh v. Lonsdale, cited infra, as they
deal with the law as recognised both at law and in equity prior to the Judica-
ture Acts, and, so far at all events as they deal with the position of a tenant
holding over after the expiration of a term, are unaflected by that decision.

Before the Judicature Act], if a party occiip[ied] and paid rent under an
agreement for a term, then, although such agreement [might] not operate to
create the proposed term, either in consequence of its not amounting to a
lease, as in Richardson v. Gifford, 1 A. & E. 52, or not being a good execution
of a power, as in Beale v. Sanders, 3 Bing. N. C. 850, yet the party so occu-
pying and paying rent was considered as holding upon all the terms of the
agreement not inconsistent with a tenancy from year to year, such as the
obligation to repair, and the like. See Richardson v. Gifford, and Beale v.
Sanders. So in Doe d. Thompson v. Amey. 12 A. & E. 476, where a party
entered, and paid rent under an agreement for a future lease of years, which

in44 DoK I). im(k;k v. ukll.

was to contain ft covenant not to take successive crops of corn, with a contll-
tioii of rc-fntry for hrt-ach of covenants, it was held that ejectnient nil:;ht Ik;
hroiiulit upon successive crops of corn helnj; taken by the tenant : see also
Dof (I. (Hilirshnir v. Hn'ftrh, tl Ksp. 10(>; [Tfwmnti v. I'lfkt-r, I II. &. X. Jjr.'J ;
Watiton v. Wnuil, H Kxch. :{:$."• ; anil lifnnell v. Inland, E. B. i E. l\2G]. In I'ixlor
v. Ciilnr, 1» M. & W. 'M'f, a tenant entered upon a copyhold under an agree-
ment for a lease its soon its thr Innl's linnrf nmlil lie nhtitiiifil, in wideh he was
to covenant to repair. No licence ever was obtained, or lease made, yet held
that he was bouml to repair. This seems a stronj; case, [and .see Murtin v.
StnilU, L. U. 9 Ex. 50; 4:J L. J. Ex. 4L'; H>i« v. Cole, 'M\ L. T. ♦ilH.

In Li'i' V. Smith, Exch. C.C'i, a tenant entered Into the possession of prem-
ises iiii(l<r an a;;reement in writinir, which stipidated for a longer term tlian
three years. This docuiiK'nt, not belnif under seal, was void as a lease by tlie
operation of the H & 1) Vict. c. lOd. The rent was to be paid i|uart«Tly, and
in advance. The tenant paid rent on several occasions, l»ut not, in fai-t, in
advance. The receipts, however, stateil that the payments wi-re nuide in
advance. It was lield, that althoui;h the airreenu-nt was void under the stat-
ute, tliere was sulllcieut evidence to show that tlie rent was payal)le (piarterly
in advance. " .\lthou<;h the aun-ement was void," said Haron I'arke, •■ as not
beinj; under seal, as ret|ulretl by tlie M & '.» Vict. c. lOtt, there was ample evi-
dence that the party In (piestlon consented to be tenant from year to year
upon the terms that the rent should be payable at the bei;innini; instead of at
the end of each quarter." The presumption which arose in cases of this
description, from the fact of the payment of rent, was the .same a;;ainst a
corporation as a;;aiust ordinary lessors. Itur d. I'fnninijtnn v. Tnuifrt', 12
Q. B. '.•:ts.]

Tliere [was] this peculiarity, however, in the tenancy (Teated by payment
of rent after entry under an ai;reement for a lease, or a void lease, that al-
thoti<;h it was considered a teiuincy from year to year during the continuancu
of the term proposed to be granted by the lease, and [could] oidy be put an
end to by the landlord, after the usual notice, Chuinnnn v. Tnwutr, f. M. & \V.
100, yet it [was] determined at the expiration of that term, without any
notice to quit. Dor d. Tilt v. Strattioi, 4 Hiuu:. 44(!; Ii>rr>'>j v. Liinlhif, ;] M. &
(ir. 511; thoujrh the a<rreemeiit under which the tenant entered provided for
the extension of the term specified therein upon certain conditions. I^oe d.
Davenish v. Mnffntt, 1."j Q. li. 257.

[Such was the state of the law on this subject prior to the passing of the
Judicature Acts. In H'rt/.t/t v. Lonsdale, 21 Ch. 1). I); 52 L. J. Ch. 2, however,
it was laid down by Jesscl, M.R., that since those Acts the rule no longer
holds that a person occupying under an executor}- agreement is only made
tenant from year to year at law by the payment of rent, but that he is to be
treated in every court as holding on the terms of the agreement. The facts
of the case were that the plaintitl' hail agreed to take a lease from the defend-
ant of a mill for seven years at a rent of 30.-*. a year for each loom run, the
plaintitl" not to run less than 540 looms. The lease was to contain such stipu-
lations as were inserted in a certain lease referred to in the agreement.
That lease provided that there should at all times during the continuance of
the demise, except in the last year of the term, be due and payable in ad-
vance on demand one whole year's rent of the premises demised in addition
to the proportion, if any, of the said yearly rent due and unpaid for the
period previous to such demand. The plaintitT h.ad l)een let into posses-
sion, aud had paid rent quarterly, but not in advance, up to January 1st, 1881.

DOE D. RIGGE V. EELL. 1345

Before the next quarter's rent became due the defendant demanded a year's
rent in advance, together with the proportionate part of the rent from the
1st of January, and on tlie plaintiff's refusal to pay it put in a distress for the
amount. In an action in the Chancery division for damages for illegal dis-
tress, an injunction, and specific performauce, the plaintiff applied for an in-
terim injunction. One of the grounds of the application was that inasmuch
as the rent payable depended upon the number of looms run, there could be
no fixed sum payable in advance as rent, but assuming the rent to be ascer-
tained, it was further argued that the plaintiff was only tenant from year to
year on such of the terms of the agreement as were not inconsistent with
such a holding, and that the clause making a year's rent always due in ad-
vance was obviously inconsistent with a tenancy which might be determined
by six months' notice. Ery, J., granted the injunction, but only on the terms
of paying the whole amount of rent claimed into court. This decision was
affirmed on appeal, with a slight modification, immaterial to the present ques-
tion. The court did not, upon an interlocutor}' proceeding, finally determine
the questions in the action, but they expressed a decided opinion that the
rights of the parties must be ascertained by reference to the lease as it ought
to be framed pursuant to the contract between the parties. In this view
there was nothing to prevent the lessor exercising then the same right of
distress which he would have acquired had the lease been executed. It is to
be observed, however, that the person complaining of the distress was him-
self at the same time claiming specific performance of the lease, and could
not therefore, in a court of equity, be heard to complain of one of the provis-
ions in an agreement which he was himself setting up ; and this appears to
be the ground of the decision.

Jessel, M.R., says: "There is an agreement for a lease under which pos-
session has been given. Now, since the Judicature Act, the possession is
held under the agreement. There are not two estates, as there were for-
merly, one estate at common law by reason of the payment of the rent from
year to year, and an estate in equity under the agreement. There is only one
court, and the equity I'ules prevail in it. The tenant holds under an agree-
ment for a lease. He holds, therefore, under the same terms in equity as if
a lease had been granted, it beimj a case in which both parties admit that relief
is capable of being given by specific performance. That being so, he cannot
complain of the exercise by the landlord of the same rights as the landlord
would have had if a lease had been granted." It may possibly still be open
to question whether if the tenant had not claimed specific performance, but
had brought an action in the Queen's Bench Division for the wrongful dis-
tress, the defendant, who had asserted a legal right before he had perfected
it, as he might have done, by proper proceedings for that purpose, would
have been held to be precisely in the same position as though he had done so,
or whether, to put the proposition in another form, it is the law that in all
proceedings after entry between the parties to an agreement which b}' the
Statute of Frauds and the 8 & 9 Vict. c. lOG is void as a lease, and can operate
where the tenant has entered as creating an estate at will only, " either in law
or equity " (see the words of the Statute of Frauds set out in the note to the
next case) they are in precisely the same position as if those statutes had
never passed.]

The liability of a party holding over after the expiration of a tenancy by
agreement, is rather a matter of evidence than of law ; and although Lord
Kenyon in the principal case, and Lord EUenborough in Dighij v. Atkinson, 4

IIU'J I>«JK I). i:i(;t.i \ I.I.M..

ramp. 17H, scfin to lay down tlu- niU- as oiu* of law, vrt In all the* more re-
c'L'iit rases upon tin- siil>j«'rt, tla- i-xlstciu'e of any lonaiify In tlie party hold-
In;; oviT (bi'vond a ti-nancy at suHiTance, which exists, l>y law, In every ease
where u person IujUIs over hy wronK after the determination of a rl}(htful
estate, but wliW-h Imports no privity between the landlord and tenant, Co.
Lltt. 't'h, '270h, 271'/), as well as the tenns npon whh-h snrh tenancy exlstti,
have been considered as (piestlonw for the jnry : the construction of any
written agreement, and the apiilicabllity of Its terms to a tenancy from year
to year, licinii for the ileclslon of the court. See the remarks of Lord Den-
nian, ('. i)., anil IJttledale, J., \ii Jn/utson v. Thf f'hurrhiriinlmM of St. I'etrr
Herefitrd, 4 A. & K. '.2."» ; see al.so Jiniea v. She<tr», 4 A. i K. M32 ; F.l^/ar V.
Watgnn, Car. & Marsh. 4'.t4 ; and The Mivjnr <>/ Theifnnl v. Tylfr, H y. B. US.
In which case Mr. Justice WlKhtman says, '• when a party Is alloweil to hold
over after tlie expiration of a tenancy by agreement, the terms on which he
continues to «)ccnpy are matter of evidence rather than of law."

The law. It Is apprehended, does not Infer any i>arti<ular contract from the
mere fact of entry under an ai;reenuMit for a future lease, or a holding over
after the expiration of a past ayreenu-nt, per Lonl .Vblnuer, ('. li., Wiirimj v.
Kimj. « M. & W. 575. See also Jenntr v. Clfi/ij, 1 M. JL U. 217; ./uitrn v.
Shiitrs, i A. & E. «32; Chnpmnn v. Ti>iruer,i\ M. & \V. lo4, pi-r Parke. IJ. ;
Rii<fl>j V. liijle, 11 M. & W. HI; The M(t>jnr »/ Thrtfonl V. Tijli-r.tiuprii. [The
question In all the.se cases Is one, not of law for the Jud^e, but of fact for
the jury. Wulkfr v. Gwlf, (> II. & N.51M; Onkleij v. Monri-, ;i II. &. C. 7iM],
L. U. 1 Kx. l.V.t; L. and \. W. linthnvj Cnmp. v. HV.W. L. U. 2 C. V. 5;j;»; 30
L. .1. f. 1". 24.-i; and Coniiith v. Stuhh.t, L. K. 5 C. V. 3.14: 3'i L. J. C. I'. 202. J

Hut where the i)arty so ociMipyint; pays rent accordlni; to the terms of the
agreement, either i)ast or future, and thereby becomes tenant from year to
year, the iufi'n'Uce is irresistible, j;i the nhseitre nf nnijlhimj Id shmr n ilifferetU
undirslnndiiDj, tliat the parties Intend the occupation to continue npon such
of the terms of the ai;reement as are not Inconsistent with such a tenancy;
and this is probably all that was intended by Lord Kenyon In the principal
case, and by Lord Ellenborou;;h in Diijfuj v. Atkinsmt. See Dne <l. Mntick v.
Geekie, 5 Q. H. H41; Fiwh v. Miller, 5 C. B. 42« : \_Kelh-;i v. roHersmi, L. U.
9 C. P. 681] ; Uifiitt V. (h-i\tll(fiii, 17 Q. B. 508; and the note to the next ca.se.

[It is obvious that the onlinary inference from a holdiui; over by a lessee
after the expiration of a lease an«l a receipt of rent nuiy be rebutted by show-
ing that the person who is the oirner of the hind irhen the lease ejpirex, and
who receives the rent, is not ac(iuainted with the terms of the ori,i;inal let-
ting. Thus, where a reniaindemian allowed a tenant who had been let in by
the previous tenant for life to remain in possession after the death of the
tenant for life, and the consequent expiration of the lease, and received from
him the old rent but did not know that the lease had contained a clause pro-
viiling that at the end of the tenancy the lessee was to be paiil for all fruit
trees planted by him on the premises, it was helil that this stipulation did not
form one of the terms of the new tenancy. Onkhij v. Mimrk, .S II. & C. 706.

The rules mentioned above apply where there has been a real holdinii over.
The mere accidental retention by a yearly tenant of the key of the premises
after giving a notice to quit, and removing with his goods from the house, is
not any evidence of an intention to continue the tenancy. Gray v. Bompas,
11 C. B. N. S. 520.]

CLAYTON V. BLAKEY.

MICH. — 39 G.3.
[reported 8 T. R. 3.]

Though hy the Statute of Frauds it is enacted that all leases hy
parol^for more than three years^ shall have the effect of estates
at ivill only^ such lease may he made to enure as a tenancy from
year to year.

This was an action against a tenant for double rent for
holding over after the expiration of his term, and a regular
notice to quit. The first count of the declaration stated a
holding under a certain term, determinable on the 12th of May-
then past ; and other counts stated a holding from year to year,
determinable at the same period. It appeared in evidence that
defendant had held the premises for two or three years, under
a parol demise for twenty-one years from the day mentioned, to
which the notice to quit referred; and the Statute of Frauds
directing that any lease for more than three years, not reduced
into writing, shall operate only as a tenancy at will, it was con-
tended, at the trial, at the last assizes for Northumberland, that
the holding should have been stated according to the legal
operation of it, as a tenancy at will; and as there was no count
adapted to that statement, that the plaintiff ought to be non-
suited. Hooke, J., however, considering that it amounted to a
tenancy from y^ear to year, overruled the objection, and the
plaintiff obtained a verdict.

Wood now moved to set aside the verdict, on the ground of a
misdirection, relying upon the positive words of the statute.

Lord Kenyoti, C. J. — The direction was right, for such a
holding now operates as a tenancy from year to year. The

1347

1348 < i..\\ i«>.N \ . i.i.Aivi.'i.

nieiining of tlie statute was, that siuli an agreement should not
opt'iate as a ti'iin; l)iit what was th«*n consultTetl its a tenancy
at will has sinci- ht-cn i)rc){)erly construf(l to enure as a tenancy
from year to year.

Per Curiam. Itule refused.

TiiKSK two cases, nlthou(;Ii loudly iinpu<;ii»'<l hj- Mr. Watkins, in his aiilc
litllf tn-atise on Convi'vanciuK, have never since been invalidatetl l>\- jiulieial
decision. Nor does either of them seem inconsistent witli tlie Statute of
Frauds, [ftut see tlie notes to the last case, and Wahh v. Lonmlnlr, there
cited, as to tlie etl'ect of tlie Judicature Act. The Statute of Frauds) enaet.s,
in sec. 1, " Tli.nt ail leases, estates, interests of freehold, «)r terms of years,
or any uncertain interest of, in. to, or out of, any messuages, manors, lands,
lenenjenls, or liereditanients, nnide or created by livery and srlsin only, or by
parol, and not put in wrlllni; and sl;;nctl l)y the parties so nuilvini; and creat-
int; the .same, or their a;;ents thereunto lawfully autiiorlse<l by writinsj, shall
liave the force and ett'ect of leases or estates at will only, and shall not either
in law or e<|uity be deemed or taken to have any other or jn"eater force or
cH'cct, any consideration for niaklni; such parol leases to the contrary not-
withstnndini;."

Skc. '2. •• K.xcept, nevertheless, all leases not exceediui; the term of tliree
years from the luakin;; thereof, whereupon the rent reserved to the landlord
duriui; such term shall amount to two-thirds part at least of the value of the
thiui; demised."

Now it is dear, that the words of these sections are satisfleil by holding;,
that a parol ilemise for more than three years, creates, in thf Hist instdnce.
an estate at will, strictly so called, which estate at will, when once created,
may, like any other estate at will, be chanired Into a tenaiu-y from year to
year, by payment of rent, or other circumstances intllcative of an intention
to create such yearly tenancy : and this perhaps is all wliidj was decided by
the two cases in the text, for. in Doe v. Ihll, we are expressly told that the
dcfvmhiut had paid rent : and though. In Clai/ton v. lilaki'i/, there is no express
mention of rent liavini; l)ecn |)aid, yet, as the tenant had been in p()ssession
for tliree years, and that, under a rent (for the action was for double rent),
it is more than prol)able that some payment of rent had taken place during
that period. Indeed, to deny to such a payment the effect of creating a tenancy
from year to year, in cases where the letting was by parol for more than
three years, would be to contravene, rather than obey, the enactment of the
Statute of Frauds, since that act evidently means that such a parol lease shall
enure in every respect as a lease at will. Now one of the incidents of a lease
at will is its convertibility, by payment of rent, into a tenancy from year to
year. See Doe v. Weller, 7 T. K. 478 ; Roe v. liees, 2 Bl. 1171 : and see 7 Ring.'
458. vbi per Tindal, C. J., " If a party enters and pays, or promises to pay a
rent certain, or settles it in account (see Cox v. Beiit, 5 Bing. 185), a new-
agreement may be presumed, under which the landlord may have a right to
distrain."

But the decisions (it is believed) have not gone so far as to establish that
a parol lease for more than tliree years at a fixed rent will, without any other
circumstance, create au interest from year to year, so as to give the tenant a

CLAYTOX V. BLAKEY. 1349

right to enter indefeasible except by six months' notice, ending with the
expiration of the year. Such a construction would, perhaps, be incompatible
with the strict letter of the Statute of Frauds ; nor (it is believed) has it
ever been held, that a parol demise for more than three years, at a fixed rent,
even when coupled with the lessee's entry under it, wall, before payment or
acknowledgment in account of any part of the rent reserved, have the eft'ect
of rendering him tenant from year to year. Indeed, the contrary appears
involved in the case of Doidge v. Boiuers, 2 M. & W. 305, where three persons
entered under a lease for seven years, not signed by the lessor, and, there-
fore, inoperative under the Statute of Frauds : payments of rent were made,
but not being shown to have been with the assent of one of the three, it was
held that, as against her, there was no evidence of a tenancy from year to
year, she not having resided a year on the premises; Parke, B., saying,
" Under the original contract no demise could he created, but a mere tenancy at
loill. Then, in order to constitute a new tenancy, it must be shown that all
the three parties agreed to vary it by a new contract for a tenancy from year
to year." See De}in v. Fearnside, 1 Wils. 170 ; Goodtitle v. Herbert, 4 T. E. 080.
[As to where equity will enforce a verbal agreement by a landlord not to
disturb his tenant during the residue of the landlord's own term, even though
such unexpired terra exceeds three years, see In re Keys, L. R. 10 Eq. 521,
which was distinguished in Wood v. Beard, 2 Ex. D. 30, 40 L. J. M. C. 100;
Cole V. Pilkington, L. R. 19 Eq. 174; Kusel v. Watson, 11 Ch. D. 129; 48 L.
J. Ch. 413; Cheshire Lines v. Leicis, 50 L. J. Q. B. 121.]

Tenancies from year to year seem to have ow^ed their origin to the preva-
lence of a strong and very natural feeling of the justice and good policy of
allowing a tenant who has sowed, to reap. This feeling manifested itself
during the earliest ages of our law" in the doctrine of emblements, which
entitled a tenant at wall to the crops he had sowed, and gave him free ingress
and egress to reap and carry them, after the determination of his tenancy by
the landlord. (Litt. sec. 08, and the Commentary.) Now the land could have
been of but very little value to the landlord while covered with crops belong-
ing to his late tenant, and subject to such a right of entry; and to give those
crops and that right of entry to a tenant at will was in effect to say that his
enjoyment of the land should not be put an end to by the determination of
the landlord's will respecting his estate in it. But people were apt to con-
found the distinction between the right of the enjoyment and the right to
the estate ; and seeing that the landlord could not ar])itrarily put an end to
the former, they concluded that he was similarly restrained as to the latter.
" So long ago," says Lord Keuyon, in Doe d. Martin v. Watts, 7 T. R. 85,
" as the time of the year-books, it was held that a general occupation was an
occupation from year to year, and that the tenant could not be turned out of
possession wdthout a reasonable notice to quit" The passage in the year-
books referred to by his lordship is 13 Hen. 8, 15 b, iibi per Wilby, " Si le
lessor ne done a luy garnir devant le demy an il justiflera in auter an et issint de
an in an" [See also the judgment of Mr. Justice Buller, in Bight v. Darby, 1
T. R. 103, and that of Mr. Justice Willes in Jones v. Mills, 10 C. B. N. S. 788.]
And it was better for the lessor himself to establish this custom, since a late
tenant at will entitled to emblements would have had the w-hole profits of
the land, from the determination of the will till the harvesting of the crops,
without paying any rent for it ; whereas the tenant from year to year pays
rent until the day on which he quits the premises.

It is now well settled [subject to the Agricultural Holdings Act, 1883, 40

l^oO CLAYTON V. HLAKKV.

& 47 Vict. c. 61, s. 33, which sec iiifnt], that tlic rcdKonafde nntirc to f/nit to
wliicli tlic tenant is entitled, is lialf-a-year's notice, endint; witli tlie period at
wiiicli his tenancy conunenccd; sec Dop v. Porter, 3 T. U. 13. [In Ilmjfni v.
'J'/if Hull I)i)ck Compaiiij, 34 L. J. Chan. KU, Vice-Chancellor Wood \va.t of
opinion that on a tenancy from year to year, nndcr a written ajjreeiuont,
whicli l)o<;an at Lady-day, and was determinable by the terms of tlie contract
by a •• six months' notice," the word " montli.s " meant lunar months, there
beinj; no custom or usage of the district proved so as to attach a dlJlerent
meanin;; U) the worils. But this view was not necessary for the decision of
the case, there being evidence to show tliat the wonls " Lady-day " and
'• Michaelmas," as used In the ajfreement. meant ohi Lady-ilay and old
Micliaclmas; so that the notice (which was given on the '.Hh of October)
was sustuinable as having been given before the commencement of the half-
year ending with the period at which the tenancy had commtnceil. And It Is
apprehended that It is clear that a notice of six lunar months Is not sutllclent
to determine an ortiinary yearly tenancy. The true rule, as osta)>lished by
the decisions, is that the notice must be a half-ijp(tr'it n>>tii-p ; It must be given,
as the year-book says, '• di'iiuit If dfimj nit," subject to this (|ualitl(-alion. that
wiiere the rent Is payai>le on the usual feast tlays, a notice, on or before one
of the feast days In the earlier half of the tenancy, to <iidt on the feast day
at the conclusion of the tcnaiuy is sutllcient. although there may be fewer
than one hundred and eighty-two days lietween the two feast days. line d.
Durnnt v. Put', (J Hing. 574 ; line v. Kniijhtleij, 7 T. U. (13; Ilnirnrd v. W'em.ihi/,
<; Ksp. 53; I)i>e v. Wrifjhtiiuin, 4 Esp. G; Doe v. Green, lb. 11*8; and Smitft'ii
Lnndlord and Tenant, 3(19 (3rd edition). A period of six lunar months of
twenty-eight days, is not half a year, nor do two such periods, as Is obvious,
constitute a year, the division of time with reference to which the reasonable
notice to (juit re(iuired by law is calculated. See also ('ate.ihy'g ('use, i; Kep.
r>l. And where the tenancy commences on one of the fi-ast days a notice to
(|uit given on the day after one of them is bad; e.y., notice given on the SOth
March to (juit on the L'ltth Septemiier, Monjan v. Davies, 3 C. I'. I). '.'CO.]

It has been held that the notice must end with the period at wliirh the
tenancy commenced, even although the demise be in terms for one year and
six months certain. Doe d. Robinson v. Dohell, 1 Q. B. 800 ; see also Doe d.
Cormnall v. Mattheirn, 11 C. B. G7.'>, Berrey v. Lindley, 3 M. & Gr. 498, [.S'anJ-
hill V. Franklin, L. 11. 10 C. P. 377;] but In Doe d. Buddie v. Lines, 11 Q. B.
403, where a tenant for a term commencing at Christmas, made an under-
lease commencing also at Christmas, but ending at Midsummer, and the under-
tenant held over and paid rent, it was held, in an ejectment brought by the
lessee against the sub-lessee, that the tenancy from year to year created by
tlie payment of rent, commenced at Midsummer and not at Christmas, and
that the notice to quit must be given accordingly. The grounds of this
decision do iiot appear very clearly in the judgment; [and see Kelly v. Patte-
son, 43 L. J. C. P. 320.

As to the efl'ect in determining the tenancy of a notice to quit which has
been subsequently withdrawn, see Tayleur v. Wildin, L. K. 3 Ex. 303, 37 L.
J. Ex. 173.]

If on the creation of a tenancy from year to year the parties do not use
words showing that they contemplate a tenancy for two years at least, the
tenancy is determinable at the end of the first as well as of any subsequent
year. Dnr d. Clarke v. Smarid(/e, 7 Q. B. 957; and as to the words which
have been lield to show an intention to create a tenancv at least for two

CLAYTON V. BLAKEY.

1351

years see Doe d. Chadborn v. Green, 9 A. & E. G5S ; Denn d. Jacklin v. Cart-
wriyht, i East, 29 ; R. v. Chawton, 1 Q. B. 247 ; [and Doe d. J/onc^• v. Ge^^-i^

5 Q. B. 841. . .

By 46 & 47 Vict. c. 61, s. 33, the Agricultural Holdings Act, 1883, it is
enacted tliat, " Wliere a half-year's notice expiring with a year of tenancy is
by law necessary and sufficient for determination of a tenancy from year to
year, in the case of any such tenancy under a contract of tenancy made
either before or after the commencement of this Act a year's notice so expir-
ing shall by virtue of this Act be necessary and sufficient for the same;
unless the landlord and tenant of the holding by writing under their hands
agree that this section shall not apply, in which case a lialf -year's notice shall
continue to be sufficient, but nothing in this section sliall extend to a case
wliere the tenant is adjudged banivrupt, or has flled a petition for a composi-
tion or arrangement with his creditors." See on the construction of this
knd of the corresponding section of the repealed Act of 1875, Wilkinson v.
Calvert, 3 C P. D. 369 ; Barlow v. Teal, 15 Q. B. D. 501 ; 54 L. J. Q. B. 564.

By s. 54, nothing in this Act shall apply to a holding that is not either
wholly agriculturaror wholly pastoral, or in part agricultural and as to the
residue pastoral, or in whole or in part cultivated as a marlcet garden, or to
any holding let to tlie tenant during his continuance in any office, appoint-
ment or employment held under the landlord.

On a weekly tenancy it has been doubted whether any notice to quit is
necessary; see i^r Cresswell, J., in Toivue v. Campbell, 3 C. B. 922, citmg
Ilnffel V Armisted, 7 C. & P. 56. But a reasonable notice is, it is apprehended,
clearly necessary; and the safest plan is to give a weelc's notice; see Jones v.
Mills' 10 C. B. N. S. 788, wliere Mr. Justice Williams thouglit that the notice
should be a weelv's notice, but Mr. Justice Willes was not satisfied with the
correctness of that view, which was not necessary for the decision. A
month's notice has been held to be the proper notice on a montlily tenancy.
Beamish v. Cox, 16 L. R. Ir. 270, 458. There is no ol)jection in law to a ten-
ancy determinable by a week's notice to quit and a reasonable time being
allowed after the expiration of the notice for the tenant to remove his goods ;
Cornish V. Stubbs, L. R. 5 C. P. 334, 39 L. J. C. P. 202, followed by Mellor v.
Watkins, L. R. 9 Q. B. 400.]

There is no doubt that a tenancy at will, strictly speaking, may still be
created; Ball v. CuUimore, 5 Tyrwh. 753; [Marquis of Camden v. Batterbarij,
5 C B N. S 808.] It may be so by express words, Richardson v. Langridge,

4 Tauiit. 128 ; Cudlip v. Rundle, 4 Mod. 9 ; R. v. Fillongley, Cald. 569. Doe d.
Basto V. Cox, 11 Q. B. 122, 17 L. J. Q. B. 3. A person who holds rent-free by
the permission of the owner is a tenant at will. R- v. Collett, Russ. & Ry. C. C.
498 ; ex. (jr., a minister placed in possession by trustees for the congregation.
Doex. Jones, 10 B. & C. 718; vide tamen Wilkinson v. Malin, 2 Tyrwh. 544.

So [was] a person entering under an agreement to purchase, or for a lease,
and who [liad] not paid rent. See Becjnart v. Porter, 7 Bing. 451 ; Doe v.
Miller, 5 C. & P. 595; Riseleij v. R'jle, 11 M. & W. 16; IPollen v. Brewer, 7 C.
B. N. S. 371] ; although he [had] paid interest. Doe d. Tomes v. Chamberlain,

5 M. & W. 14. See Howard v. Shaw, 8 M. & W. 119.

On payment of rent, however, he [became] tenant from year to year.
Mann v. Lovejoy, R. & M. 355. See Sa^inders v. Musgrove, 6 B. & C. 524;
Chapman v. Towner, 6 M. & W. 100. Provided that he paid it with reference
to a yearly tenancy; for as Baron Parke observes, in Braithwaite v. Hitdimck,
10 M & W " although the law is clearly settled that where there has been

l;5;V2 CLAYTON V. HLAKKV.

an ayrccnipnt for a loaso, and an occupation without i>ayinont of rmt, tho
oc«'iii)i«'r is a inert' tenant at will, yet it lias Ix-en lu-ltl tlial if hv sulisiMnicutly
pays rent under that aijreenient lie tiierel»y lieeonies tenant from year to year.
I'ayment of rent, indeed, must l)e understood to mean pnyiiunt irit/t n/fn-ucf tu
a yfurlij hohUmj ; for in /iirhartUtm v. Lnnijrithjf, a party who liad paid rent
under an aifreenient of tlds description, i)ut had not paid it witli reference to
a year, or any alitpiot part of a year, was held, nevertheless, to he a ten:iiit at
will oidy." .See also tlie jud<;ment f)f the same learne<l judi;e in />»«■ d. Hull v.
W'liiitl, H M. & ^^^. MT; and the reason is, because the payment of rent by tlio
occn|)ier witli n-ference to a yearly )ioIdin<;, and the receipt of it by the land-
lord, [was] evidence of the intention of the parties that a yearly tenancy
should l)e created.

So where a party haviii;: enlentl nndi-r a void lease ;;ranted by A. A H.
paid thcin rent, and continued in possession after an assi<;ninont of hlH
Interest by B. to A., and paid rent to A. with notice of the assi<;nment. this
was held to be evidence of a new contract of t«'nancy from year to year with
A. alone: Ardm v. SiiHinin. U q. H. M2.

It is however only evidence: />«/■ d. L'lnl v. (V(i;/o, tJ ('. H. '.is ; anil altlii>iii,di
in the absence of other circumstances, showing; a contrary intention, it
wouhl l)e det'ined conclusivi-, liiahnp v. Jlinrnril, 2 l\. &. ('. UMl, yet when" it
ajipears the parties do not intend it to have that etlect, the tenancy at will
remains unad'ected by it. Tims In the ca.se «)f Ihn- {\. Haslo v. Cnr, 11 ^^. B.
122, 17 L. J. Q. B. .1, where ejectment was brouirht by 2 B. K. & M . mort-
!;a<;ees, aj^ainst the defendant, mort;;a<;or, the mort;;ai;e deeil contained tlie
following; clause, '• And the said \V. ("ox liereby agrees to become tenant to
tlie said B. K. & M. henceforth dunu<; their will and pleasure, at and after the
rate of 2'!/. fl.v. per year, payable (piarterly, on the isth .Sejitember. isth of
December, Isth of March, and isth of June:" the defendant having made
default in payment of tlie insfalnu'uts of the mortjraire money and rent, the
lessors distrained for four (|uarters" n-nt ; afterwards they ijavc a week's
notice to qtut and brought ejectment. It was contentleil on behalf of the
defentlant that he was, under the circumstances, tenant from year to year;
and that a six months' notice was re<iuisite; the learned jndfje (Mr. Justice
Coltinan) however decided that the defendant continued tenant at will, and
that the notice was sutllcient. Tlic Court of Queen's Bench were of opinion
that he was rii;ht, and refused a rule for a new trial. So in the case of Due
d. I)i.ii( v. Dftridi, 7 Kxch. Si>, a tenancy at will l)etween a morti;aiiee and
niortiiaiior was also liehl to exist notwithstanding tlie reservation of a yearl}'
rent; see also Puihorn v. Souster, 8 Exch. 7<>;i : In re Stnuid. « C. B. .'i02 : Dne
d. Prior v. Onf/ley, 10 C. B. 25. TTie (Juardians of the Woodhridije Union v.
The Guardians of Colneis, 13 Q. B. 269; West v. Fritrhe. W Kxch. 2ir.; [and
Smith V. Widlake, 3 C. P. D. 10.

It is important to observe that the law will not imply the existence of a
tenancy from year to year from the fact of payment, after entry upon the
land, of suras of money described as rent, if on looking at the whole of
the circumstances of the case it apiiears not to have been the intention of the
parties to create the relation of landlonl and tenant. This rule is well illus-
trated by the case of The Manjuis of Camden v. Batterbury, 5 C. B. N. S. H08.
In this case a building agreement under seal had been made between the
owner of a piece of lanil and a builder. This agreement provided for the
granting of future leases, and also contained a covenant on tlie part of the
builder that be would pay certain rents when some buildings should be erected

CLAYTON V. BLAKEY. 1353

on the land, and leases of them should be granted, and that until the grant-
ing of the leases he would pay such yearlj^ sums or rents as would become
payable if leases had been actually granted. The contract also contained a
proviso for re-entry in case any portion of the yearly sums or rents should be
unpaid for twenty-one days. The builder assigned his interest under the
agreement to a third person, Avho entered on tlie land, erected some buildings
on it, paid the stipulated yearly sums for some time, and then assigned his
interest to another. An action for use and occupation was afterwards
brought, in respect of a portion of the land, by the owner of the property
against the assignee of the builder. Under these circumstances the court
was of opinion that neither the builder nor his assignee, had acquired any
estate in the premises under the building agreement, and that no tenancy
from year to year had arisen. Mr. Justice Williams, after stating that he
thought that no tenancy from year to year subsisted between the plaintiff and
the defendant, proceeded as follows :

" It seems to me to be clear that the building articles carefully exclude the
acquisition of any estate by Elliott (the l)uilder). It would perhaps be diffi-
cult to say that he did not become tenant at will : but beyond a tenancy at
will, he clearly had no estate. What, then, was Elliott's position? He had
under the articles a right to enter upon the land and devote it to the purposes
thereby contemplated, and for this right he was to pay an annual sum, not as
rent, but as a collateral payment until the leases should be granted, and an
estate thereby acquired. It is plain, therefore, that the sum stipulated to be
paid by Elliott not being payable as rent for the occupation of tlie land, but
merel}' a stipulated sum payaljle by virtue of the agreement, so far as he was
concerned there is no ground for saying that he ever paid rent in the sen.se of
creating a tenancy. But it is contended that, when the defendant came in,
the payment was to be considered as rent paid for the enjoyment of the land,
and so a tenancy from year to year was created. It seems to me that there
is no ground whatever for implying a tenancy from year to year in the
defendant. Where a tenancy from year to year is implied from periodical
payments, it is because you cannot account for the pay^nent of the money upon
any other hypothesis than that it is paid for rent, and hence the law implies a
tenancy from year to year. But here there is no moi*e reason for implying a
tenancy from year to year after the defenthint came in than there was when
Elliott held the land. The defendant became liable to pay the money because
Elliott had assigned the agreement to him, and he had agreed Avith Elliott to
make the payments. . . . The payments which were made bj' him were not
made in discharge of any original liability in himself, but in discharge of
the liability of Elliott, against which the defendant as assignee was bound
to indemnify Elliott. It is said that the defendant held upon tei'ms different
from those under which Elliott held. But that leaves the question precisely
as it was before. Can you imply from the payment of the money by the
defendant, that he meant to become tenant from year to year to the plaintiff"?
Certainly not. The payment being due to the liability of Elliott under the
agreement, there is no more reason for inferring that the defendant became
tenant from year to year than that Elliott became such. Then it is said, that
if the defendant was tenant at will only, inasmuch as he continued tenant for
a portion of the j'car, he ought to pay rent pro rata. Be it tliat he was tenant
at will, he was not tenant at will on the terms of paying so nuich a year rent.
The amount still remains a collateral sum, for which Elliott, and Elliott
alone, was, in my opinion, liable under his agreement with the plaintiff": "
and see Adams v. Hagger, 4 Q. B. D. 480.]

1:554 CLAYTON V. IJLAKKY.

It hius already been shown in the notes to Keevh v. Ilnll, tliat tliere are cer-
tain cases in whicli a niort;;a,i;<)r in possession beconu's tenant at will to the
niortj;(af;ee. A vendor who remains in possession after liavin<; conveyed, is
not tenant 't will to the vendee. Teic v. Jones, i;5 M. & W. la, because lie is
not in p<. ... -sion necessarily by the consent of the vendee; but it may per-
haps l)e laid down, that wherever a person is in possession of land, in which
he has no freeliold estate, nor tenancy for any certain term, and which he
ncverllicless holds l)y the consent of the true owner, that i)erson is tenant at
will, and as such is lial)le to pay for his occupation, if benellcial; llihs v.
/Ur/Ktrdson, I) A. & K. HV.i ; Iloii-nnl v. Shnin, 8 M. & VV. UD; unless there be
a stipulation that he shall occupy rent-free. ?>ce per Alderson, B., in llmrnrd
V. Shaw, and Wintprlmttom v. Ingham, 7 Q. B. Gil. in which case it was held
that a party remaininj; in possession under a contract for purchase which
ultimately fails for want of title is not liable to pay for such occuj)ati()n,
thoutch it be found to be benellcial, up to the time of the detenninatiiJii of the
contract; — smix if he remain after such determination. Ilmrard v. Shmo,
supra.

On account of tlie peculiar uri^in of !i tenancy from year to year, ami its
beinir still in contemplation of law a tenancy at trill, it seems to have been
thought by three judj;es, in /)(»■ v. HV//.s, 10 A. & E. 427, that it would be
l)ossible to put an end to it by the parol consent of botli parties, such parol
consent not operating as a disrlaimrr, which cannot be by mere words, [Hunt
V. Allijijixl, 10 C. B. N. S. 253; Jones v. .y/ills, ib., 7H8], nor a.s a surrendor,
which would be opposed to the Statute of Frauds, but as a dt'lt'rminatinn of
the icill of both parties.

But until determined, the tenancy from year to year is a term which will
pass to the personal re|)resentative, Di"' d. Ilnll v. Wood, 14 M. & W. (iM2.

So tenant from year to year, demising from year to year, or for a term of
years, has a reversion which enables him to distrain, Curtis v. Wheeler, Moo.
& M. 4'.);?; and see Oiley v. James, 13 M. & W. 209, where tenant from year to
year havini? demised for thirty-four years to the plaintifi', who sub-let for
eiijhteen years and a (juarter to the defendant, ajjainst whom he declared in
covenant for non-repair, pursuant to the terms of the sub-lease, it was held
tliat tile plaintirt', if he could not in pleadinu describe his interest as an abso-
lute term for thirty-four years (which however semhle he could after its
expiration), miij:ht clearly allege it to be a tenancy for thirty-four years,
" provided the tenancy from year to year should so lonp; continue."

[Formerly] if a person who had createil a tenancy at will became insolvent,
a vestinj;: order [under 1 & 2 Vict. c. 110, ss. 37 & 45, repealed by 24 & 25 Vict,
c. 134, s. 230] with knowledge thereof by the tenant, was a determination of
the tenancy, Doe d. Davies v. Thomas, 6 Exch. 854. [Qu(vre whether the like
rule obtains under the analogous sections of the present Bankniptcy Act,
1883, see ss. 54 and 55.] But the notice to the tenant [has been thought to
be] essential, as on the other hand a transfer by the tenant at will of his
interest to a third person will not determine the tenancy unless notice of it is
given to tlie landlord. Carpenter v. Colins, Yelv. 73; and Pinhorn v. Souster,
8 Exch. 763; [sed qiioere}.

CLAYTON V. BLAKEY. 1355

1. The Statute of Frauds. — The Statute of Frauds, 29 Car.
II., cliap. 3, provided that '"all leases, estates, interests of free-
hokl, or terms of years . . . made or created by livery and
seisin only, or by parol, and not put in writing and signed by
the parties so making or creating the same, or their agents
thereunto lawfully authorized by writing shall have the force and
effect of leases or estates at will only, . . . except, nevertheless,
all leases not exceecUng the term of three years from the mak-
ing thereof, etc.

2. In what states re-enacted. — The English Statute was in
substance re-enacted in Geon/ia, Act of Feb. 25, 1784 ; Mari/-
land, Kiltv, p. 242 ; Alexander's British Statutes in force in
Maryland, p. 508 ; South Carolina, R. S. 1872, ch. 93, sec. 5, ch.
98, sees. 1-4; Massachusetts, until April 1, 1863; Michigan,
until Aug. 1, 1838 ; Missouri, until March 15, 1845 ; Neiv Jersey,
until Jan. 1, 1875; and Vermont, until July 1,1840; but is
nowhere now in force. With this change in legislation the im-
portance of Rigge V. Bell and Clayton v. Blakey as authorities
is greatly decreased, especially as in nearly all the states no
interest in land for a longer period than one year can be created
by an oral contract.

8. American statutes. — Every state and territory has a stat-
ute on the subject, prescribing when a contract, relating to the
transfer of an interest in land, must be evidenced by writing,
but no two of them are alike.

Many of them declare that every contract for the sale of any
interest in land except a lease for a term not longer than one
year is void, unless in writing; Alabama, Code, sec. 1733 ; Col-
orado, Gen. Stats, sec. 1517 ; Georgia, Code, sec. 1950 ; :Michi-
gan, Howell's Ant. Stats., sec. 6179 ; Minnesota, Stats, p. 543 ;
Nebraska, Com. Stats, p. 443 ; Nevada, Gen. Stats., sec. 2626 ;
Wyoming, R. S. sec. 1249.

Others enact that no action shall he brought to charge any
person upon any oral lease for a longer period than one year ;
Arizona, Code, sec. 2030; Arkansas, Dig. of Stats, sees. 3371-
81 ; Connecticut, Gen. Stats, sec. 1366 ; Florida, Dig. of Laws,
p. 208 ; Illinois, R. S. p. 740 ; Kentucky, Gen. Stats, p. 296 ;
Missouri, R. S. sec. 2513 ; Ohio, R. S. sec. 4199 ; Rhode Island,
Stats, p. 552; Tennessee, Code, sees. 2423; Virginia, Code, sec.
2840.

l^oG CLAYTON V. HLAKKY.

Still others simply state that a lease for a longer period than
one year mtiat be In writintj ; California, Code, see. ItJ'Jo.

In a few instances it is in the form of a provision that an
estate for a longer period than one year cannot be created or
transferred except by an instrument in writing ; Dakota, Code,
sec. 322; Kansas, Com. Laws, sec. 2819; Massachusetts, 1*. S,
J). T-52 ; Mississippi, Code, sec. 1188; Montana, Com. Stats, p.
651 ; New York, R. S. p. 2326.

Delaware lias the ju'culiar wording, -no di'Miisc, excei)t it Ixj
by deed, shall be effectual for a longer term than one year;"
Laws of Del. p. 707.

loua j)rescribes that no evidence is competent to prove a
demise for a longer period than one year unless it be in writ-
ing ; McClain's Annotated Stats, sec. 3663, 64.

The states that have the three-year period are New Jersey,
R. S. p. 444 ; Pennsylvania, Purden's Dig. p. 830; Indiana, R. S.
see. 41*04 ; and North Carolina, Code, sec. 1743.

in Maine, Massacluisetts, Mi.ssouri, New Hampshire, Ohio
and Vermont, there is no exception; Maine, R. S. p. 838;
Massachusetts, P. S. p. 732; Missouri, R. S. sec. 2513; New
Hampshire, G. S. p. 407 : Ohio, R. S. sec. 4r.>9; Vermont, R. S.
sec. 1022.

In Louisiana leases may be made by either written or verl»al
contract, but the transfer of title of real estate must be evi-
denced by writing; Code, p. 372; Rachel v. Pearsall, 8 Mart.
La. 702.

4. "When estate at will created. — In a few states and terri-
tories it is expressly stated that an oral lease for a longer period
than the one specified shall create an estate at will. Among
them are Arkansas, Dakota, ^lassachusetts, Missouri, Pennsyl-
vania, and Vermont. Most of the statutes are silent on this
point, but there seems no doubt that if the lessee is put in pos-
session he has everywhere an estate at will, governed by the
ordinary rules applicable to such holdings.

5. Presumptively nothing but duration of lease affected by stat-
ute. — Presumptively the amount of rent to be paid, the time of
payment, etc., — in fact, everything except the duration, — is as
agreed in the oral contract ; Schuyler v. Leggett, 2 Cow. 660 ;
People V. Rickert, 8 Cow. 227 ; Edwards v. demons, 24
Wend. 480 ; Hollis v. Pool, 3 Met. 350 ; Creech v. Crockett, 5
Cush. 133 ; Currier v. Barker, 2 Gray 224 ; Norris v. MorriU,

CLAYTON V. BLAKEY. 1357

40 N. H. 395 ; Lockwood v. Lockwood, 22 Conn. 425 ; Crom-
melin v. Thiess, 31 Ala. 412; Craske v. Christian Union, 17
Hun 319; Reeder w. Sayre, 70 N. Y. 180; Nash v. Berkmeir,
83 Ind. 536. This presumption, however, may be rebutted by
the acts of the parties ; Prindle v. Anderson, 19 Wend. 391.

6. Expansion of estate at will. — In those states where the
statute excepts leases for a year or greater period, Clayton v.
Blakey is generally followed, and a lease at will, arising from
non-compliance with the statute, may be expanded by the acts
of the parties into one from month to month or year to year,
their acts being construed just as if no oral lease had existed ;
McDowell V. Simpson, 3 Watts 135 ; People v. Rickert, 8 Cow.
227 ; Drake v. Newton, 3 Zab. Ill ; Ridgley v. Stillwell, 28 Mo.
400 ; Lockwood v. Lockwood, 22 Conn. 425 ; Grant v. Ramsey,
7 Ohio St. 157 ; Craske v. Christian Union, 17 Hun 319 ; Reeder
V. Sayre, 70 N. Y. 180 ; Nash v. Berkmeir, 83 Ind. 536 ; Koplitz
V. Gustavus, 48 Wis. 48 ; Thurber v. Dwyer, 10 R. I. 355.

In most of those states, however, where there is no exception,
it is held that such a lease at will cannot be thus expanded ;
Ellis V. Paige, 1 Pick. 45 ; Hollis v. Pool, 3 Met. 350 ; Kelly v.
Waite, 12 Met. 300; Davis v. Thompson, 13 Me. 214; Whitney
V. Swett, 22 N. H. 10. There seems no sound reason for such
decision, and in Vermont, where such a statute exists, the courts
have adopted the general rule ; Barlow v. Wainwright, 22 Vt.
88. The court remark : " The words of the statute are satisfied
by holding that the estate created in the present case was in
the first instance an estate at will, and only an estate at will,
and yet that it enured like other estates at will and had the
incidents common to an estate at will, one of which is its con-
vertability into a holding from year to year by the payment of
rent."

7. Surrender. — As regards the necessity of a writing, the
same rules apply to the surrender of a lease as to its creation,
unless the surrender be by operation of law ; Bailey v. Wells, 8
Wis. 141 ; Rowan v. Lytic, 11 Wend. 621 ; Schieffelin v. Car-
penter, 15 Wend. 400 ; Hesseltine v. Seavey, 16 Me. 212 ;
M'Kinney v. Reader, 7 Watts 123; Van Dekar v. Reeves, 40
Hun 430".

8. Construction of various statutes. — When the statute de-
clares that a parol contract is "void," the courts have held
that " void " means voidable, and the defence is waived if not

1858 CLAYTON V. P.LAKICY.

pleaded; Cooper v. Ilonisln-, 71 Ala. 02; Comer y. Sheehaii, 74
Ala. 452. The same has been lield, as between the {)arties, in
Iowa, where the lease is re(|uired to be proved in writing; Mur-
dyke v. Woolen Mills, 5 N. \V. liep. 72.").

An oral lease for three years, with a right of the lessor to
terminate it at any time upon four months' notice was held void
under the Minnesota Statute as being for a term "exceeding
one year;" Evans v. Winona Lumber Co., 30 Minn. 515. The
wording of the different American statutes is so different that
it is not safe to rely upon the decisions under one as authorities
under another, without very careful comparisou.

GEORGE V. CLAGETT.

TBINITY. — 31 G. 3.

[reported 7 t. r. 359.]

If a factor sells goods as his own, and the buyer knows nothing of
any principal, the buyer may set off any demand he rnay have
on the factor against the demand for the goods made by the
principal.

On the trial of this action, which was assumpsit for goods
sold and delivered to the amount of 14:21. Is. 9d., before Lord
Kenyon at the Guildhall Sittings, the case appeared to be this:
The plaintiff, a clothier at Frome, employed Messrs. Rich and
Heapy in London, Blackwellhall factors, as his factors under a
commission del credere, who, besides acting as factors, bought
and sold great quantities of woollen cloths on their own
account, all their business being carried on at one warehouse.
The factors sold at twelve months' credit, and were allowed
two and a half per cent. On the 30th of September, 1795,
Delvalle, a tobacco broker, and who had been in habits of
dealing with the defendants, bought several parcels of tobacco
of them, and gave them in payment a bill of exchange for
1198^. 16.S'., drawn by one Fisher on Rich and Heapy, on the
24th of September, 1795, payable two months after date to
J. Stafford, who indorsed to Delvalle, who indorsed it over
to the defendants, it having been previously accepted by Rich
and Heapy. On the 12th of October, 1795, the defendants
bought a quantity of woollen cloths for exportation of Rich and
Heapy, amounting to 1237Z. 18s. 3^. at twelve months' credit ;
the goods were taken out of one general mass in Rich and
Heapy 's Warehouse ; Rich and Heapy made out a bill of parcels

1359

13G0 GEORGE V. CLAGETT.

for the whole in their own nunies, unci the detune hints did nut
know that any part of tlie goods belonged to the i)hiintiff. Kurly
in November, 171>5, Kieli and lleapy became bankrnpts; and
afterwards, on the 20th of the same month, the ])lainlitT gave
the defendants notice not to pay Rich and Ileapy for certain
ck)ths specified, part of the above, amounting to 142/. l.s. 0./.,
they having been his property, and having been sohl on liis
account by Mich and lleapy on commission. The (picstion was,
Whether the defendants were or were not entitled to set off
their demand agiiinsi Rich and Heapy on the bill of excliange,
on the ground that the derendants dealt with them as ])rincipals;
Lord Kenyon was of opinion that they were, as well on [irinciple
as on the authority of Ralxnie v. Williams (a) ; and a verdict
was accordingly found for the defendants.

A rule was obtained, calling on the defendants to show cause
why the verdict should not be set aside, and a new trial had, on
the authority of the case of fJstcoft v. Milwanl, Co. I>ank. Laws,
23(;.

Gibbs and Giles were now to have shown cause against that
rule: but

Erskine and Walton were called upon to supj)ort it. They
relied on tlie cases of Scrimxhire v. Ahierton (^b}, and PJsfcott v.
Milwanl, as reported in Co. Hank. Laws, to show tiiat under the
circumstances of this case the principal might resort to the
buyer at once, he having given notice before actual payment
by the defendants to the factors.

(a) Rabone, jun.,v. Williams, M.\dx. goods in his own name, the person

Sittinirs after Mich. 1785; which was contracting with him has a right to

thus stated : — Action for the value consider liim to all intents and pur-

of goods sold to the defendant by poses as tlie principal; and though

means of the house of Kabone, sen., the real principal may appear, and

and Co., at Exeter, factors to the bring an action upon that contract

plaintiff. The defendant, the vendee against the purchaser i>f the goods,

of the goods, set ofl" a debt due to yet that purchaser may set oil" any

him from Rabone and Co., the fac- claim he may have against the factor

tors, upon another account, alleging in answer to the demand of the prin-

that the plaintiff had not appeared at cipal. This has been long settled."

all in the transaction, and that credit Upon this opinion, the rest, being a

had l)een given by Kabone and Co., mere matter of account, was referred,

the factors, and not by the plaintiff. In Ba'/ley v. Morley, London Sittings

Lord Mansjii'ld, Ch. J. — " Where a after Mich. 1788. Lord A>h?/oh recog-

f actor, dealing for a principal, but nised the law of this case,
concealing that principal, delivers {h) 2 Str. 1182.

GEORGE V. CLAGETT.

1361

But a more accurate note of the case of Estcott v. Milward (a)
having now been obtained from Mr. J. Bullei\ before whom that
case was tried and read:

The Court were clearly of opinion that the directions given
by the learned judge on the trial of this cause were right, and
that this case was not distinguishable from that of Rahorie v.
Williams. Therefore they

Discharged the rule (6).

[The effect of the Judicature Act, 1873 (3G & 37 Vict. c. 66), has been very
much to enlarge the rights of defendants as regards set-off. A further
reference to the provisions of that Act will be found at the conclusion of
this note.] The decision in the principal case, however, too clearly results
from principles of natural equity to need much discussion or Explanation.
It has ever since been followed. See Cnates v. Letves, 1 Camp. 444 ; Black-
burn V. Scholes, 2 Camp. 343; Carr v. Hinchliff, 4 B. & C. 551; Taylor v.
Kymer, 3 B & Ad. 334; Bastable v. Poole, 5 Tyrwh. Ill; Purchell v. Salter,
9 Dowl. 517; S. C. 1 Q. B. 197; [ Wilson v. Gabriel, 4 B. & S. 243; Kaltenbach

(«) London Sittings after Mich.
1783. Action for goods sold. The
goods were sold by Farrar, a corn
factor, who gave no account of the
sale to tlie plaintiff, nor made any
entry of it in his books. He was in-
solvent for some time before, and
avoided all dealing for a month, had
desired that there might be no buy-
ing in his name, and had not dealt
with the defendant for a year before,
but was then in his debt. Tliere
was a verdict for the plaintiff on the
ground of fraud.

(6) The same point was also ruled
by Lord Kenyan in Stracoy, Ross, and
others v. Deey, London Sittings after
Midi. 1789. As.sumpsit for goods
sold ; pleas non assumpsit and a set-
off. The plaintiffs jointly carried on
trade as grocers, but Ross was the
only ostensilile person engaged in the
business, and appeared to tlie world
as solely interested therein. By the
terms of the partnership, Ross was
to be the apparent trader, and the
others were to remain mere sleeping
partners. The defendant was a pol-
icy-broiler, and being indebted for

grocei-y (as he conceived) to Ross,
he effected insurances and paid pre-
miums on account of Ross solely, to
the amount of his debt, under the
idea that one demand might be set
off against the other. Ross's affairs
being much deranged, payment qt the
money due from the defendant was
demanded by the firm, and was re-
fused by him upon the ground of his
having been deceived by the other
partners keeping back, and holding
out Ross as the only person con-
cerned in the trade. Lord Kenyan,
Cli. J., was of opinion, tliat as the
defendant had a good defence by way
of set-off as against Ross, and had
been by the conduct of the plaintiffs
led to believe that Ross was the only
person he contracted with, they could
not now pull off the mask and claim
payment of debts supposed to be due
to Ross alone, without allowing the
parties the same advantages and equi-
ties in their defence tliat they would
have had in actions brought by Ross.
— Verdict for the defendant. [S. C.
2 Esp. 469 n.]

1362 GEORGK V. CLAGETT.

V. Lfirin, 10 App. Cas. 017; .'>."> L. J. Ch. 58]; and Sims v. Bond, o B. & A<1.
;50;i, wliero the nili" is thus expressed by the Lord C. J., delivering tlie juil};-
n)eiit of the court: — 'It is a \veU-estal)lisiied rule of law, tliat wliere a
contract, not under seal, is made with an a^ent in liis own name for an
undisclosed principal, eitiier the ajjent, or the priucipal, may sue upon it; the
defendant, in tlie latter case, l)eii)i; entitled to be placed in the same situation
at the time of the disclosure of tlie real principal, as if the ajjent had been
the contractinj; party." (AV/; further on this subject in thf notes to Paterson v.
Ganddseijui, .itlUison v. (iitndaseipii, aiul Thomson v. Dmenjiort, ]>ost.)

However, the latter part of this rule only a|)|)lics where the party contract-
ini; has not the means of knowing that the party with whom he contracts is
but an aiicnt. If he have the means of knowini;, and thouiih he nuiy not
be exi)ressly told, still must be supposed to have known, that he was dealing
not with a principal, Init with an a;;cnt, tiie reason of the al)ove rule ceases,
and tneii ressinte ratione, ressnt lex.

Thus in Bnnmj v. Corrie, 2 H. & A. l.?7. Coles and Co., who were l)rokcrs,
and also m^'rchants, sold to Corrie and Co., in their own names, sugars
belonginj^ to Barini; Hrotliers and Co., who broujjht this action for their
price. The true nature of the contract was entered l)y Coles and Co. in their
broker's book, which the defendants nni^ht, if they pleased, have seen. Nor
bad Coles and Co. the possession of the sugars, which were lyintr in the \V. I.
Docks, whence, by tlie usasje of the docks, they could not iiave been taken
without the order of the plaintiMs, wiiose princi|)al clerk siirned tin- dciivcry
order. Under tiiese circumstances, the court held that the defendants had
no riirht to set oil" ayainst tlie plaintitts' demand for the price of the {joods, a
debt due to them from Coles and Co. " It is to be observed," said Bayley, J.,
" that the plaintiffs did not trust the brokers with either the muniments of
title, or the possession of the goods, as was done in both the cases of Rahone
v. Williams, and Geovfje v. CUujett. There is another circumstance by which
the defendants might easily have ascertained whether Coles and Co. acted as
brokers or not. According to the usual course of dealing, a broker is Ixmnd
to put down in his book an account of the sales made by him in that cajiacity,
so that if the defendants had asked to sec the book, they would instantly
have iliscovered whether Coles and Co. acted as brokers or not. I therefore
think, that the plaintiffs did not by their conduct enable Coles and Co. to hold
themselves out as the proprietors of these goods so as to impose on the
defendants ; that the def entlants were not imposed on ; and even supposing
that they were, they must have been guilty of gross negligence. ... I cannot
think that the defendants believed, when they bought the goods, that Coles
and Co. sold them on their own account; and if not, they can have no defence
to this action." See fui'ther Maanss v. Henderson, 1 East, .335; Moore v.
Clementson, 2 Camp. 22. [Borries v. Imperial Ottoman Bank, L. R. 9 C. P. 38,
43 L. J. C. P. 3, and Cooke v. Eshelhy, H. L., 15th March, 1887, where the
defendants, though they dealt with the broker as principal, had no belief one
Avay or the other whether he was acting for himself or for another person in
the transaction, and were therefore debarred from setting off suras due to
them from the broker against the claim of the principal.]

In the case of Warner v. M'Kay, 1 M. & W. 595, it was held by the Court
of Exchequer, that a purchaser might set off payments made to a factor, if
he believed that the factor had a right to sell, and did sell, to repay himself
advances; but see the observations on this case in the judgment in Smart v.
Sandars, 3 C. B. 399. and per Cresswell, J., in Fish v. Kempton, 7 C. B. 094,

GEOEGE V. CLAGETT. 1363

where it was held that knowledge, by the purchaser of goods, that the vendor
sold them as factor disentitled him to set off a debt due by such factor in an
action by the principal. The set-off, however, to be available, need not exist
at the time of the sale : if it arise before notice of the real ownership it is
sufficient. See the observations of Parke, B., in Salter v. Purchell, 1 Q. B.
213; and in Stracey, Eoss, and others v. Deey, ante, p. 132, note (c), it will be
seen that the debt Avhich was set off became due after the sale of the goods,
to the partner who was allowed to act as apparent owner of the goods sold.

[In order to make a valid defence within the rule laid down in the principal
case, it is necessary to show, that the contract ^vas made witli a person whom
the plaintiff had intrusted with the possession of the goods ; that that person
sold them as his own in liis own name, as principal, with the authority of the
plaintiff; that the defendant dealt with him as, and believed him to be, the
principal in the transaction ; and that before the defendant was undeceived in
that respect, the set-off accrued. See the judgment of the Court of Common
Pleas in Semenza v. BrinsJey, 18 C. B. N. S. 467, which was decided on
demurrer. But constructive authority is sufficient; therefore if the goods
be intrusted to a factor, wiio has by custom an implied authority to sell in
his own name, the right of set-off will not be defeated by showing a private
prohibition from the principal to the factor to sell in his own name. Ex parte
Dixon, 4 Ch. D. 133. Under the late system of pleading, means of knowledge
need not have been expressly negatived in the plea, Borries v. The Imperial
Ottoman Bank, L. R. 9 C. P. 38, 43 L. J. C. P. 3. And where the purchaser's
agent knows that the seller is only an agent, there can be no set-off, although
the purchaser himself is not informed of the real facts. Dresser v. Norwood,
17 C. B. N. S. 466.

In Turner v. Thomas, L. R. 6 C. P. 610, it was sought to extend the princi-
ple of George v. Glagett to a case in which the claim was for unliquidated
damages. The action was by seller against buyer upon a contract for the
purchase of goods to arrive, and the agent, with whom the defendant had
dealt in the belief that he was the owner of the goods sold, having become
bankrupt, the defendant sought to avail himself against the principal of a
mutual credit with the agent. The court disallowed the set-off on the ground
that it could not be maintained against a claim for unliquidated damages, and
that the defence set up was not a defence against the factor, but only a
special mode of settling account with his assignees upon his bankruptcy, and
consequently did not come within the principle of George v. Clagett. Query
as to the effect of Order XIX. Rule 3, under the Judicature Acts upon cases
of this class.]

Where the goods are sold by an agent as his OAvn, the buyer knowing noth-
ing at the time of his principal, and the action is brought in the name of the
agent, the defendant [could not before the introduction of equitable defences
have] set off [at law] a debt due to him from the principal. For in this case
there is no concealment which can be in any way injurious to the buyer, nor
is his position at all altered by the mode in which the action is brought : and
the statutes of set-off only apply to cases in which the mutual debts are due
from the plaintiff, and fi-om the defendant: see the notes to Thomson v.
Davenport, post, and the judgment of the court in Isberg v. Boicden, 8 Exch.
852.

[Still courts of law have frequently allow'ed pleas of set-off on equitable
grounds in cases subsequent to Isberg v. Bowden, on allegations similar to
those alleged in the plea in that case, viz., that the plaintiff was suing as a

loG4 UEOUGE V. CLAUETT.

bare trustee for a third person ai;a'mst whom the defendant hail a set-off, and
had no beneficial intere«it himself in the snni sou^iit tt) he recovered (see
Agra and Masterman's linnk v. Leighttni, L. U. 2 Ex. at]; Thornton v. Mny-
nard, L. K. 10 C. V. 0'jr>, 44 L. J. C. P. 382; IJoltnea v. Tuttun, 5 E. i H. 65,
and Cochrane v. Green, U C. B. N. S. 448; 28 L. J. C. 1*. 3). thus practically
recurrinfj to the view taken in earlier decisions at law, see Bottouiley v.
Brook, 1 T. R. 621; liitdye v. liirch, ibid. 622. It would seem, however, that
the rule of e<|uity has Ijeen stated too broadly in some of the cases at law,
notably in Cochrane v. Cnen, 9 C. B. N. S. 448; 30 L. J. V. V 1)7. . For to
found such an etjuity it is not enough, as appears to have been assumed in
that case, to show that the plaiiititl' is a bare trustee; tliere must lie inde-
pendent ;;rounds fjivlnj; the Court of Etpiity jurisdiction and callini; for its
intervention to eidarjie the statutable rijjht of set-oil". See the Judi;ment of
Jessel, M. U., in h'x parte Xtii/ee, L. K. 20 K«i. 29.]

Similar In i>rinclplc to the decision In (I'ronf v. Claijett Is that of Starkiroo<l
V. Dunn. :\ t^. B. 822, where It was held that In an action of indebitatus as-
sumiisit ai;ainst .V., he miijlit plead tliat the prondses were made by himself
and B. jointly, and that they had a set-ot!'. So also the case of a partner
allowed by the llrm to appear as the sole owner of partnership property. See
Cordon V. Kltis, 2 V. B. w21 [and compare .s>Mrr v. Cass, L. l{. .". Q. B. CSC].

The dt'cision in Starkirond v. Dnnn, besides l)elni; obviously just. Is in sub-
stance consistent with the laniiuaye of the statutes of .set-off (2 (Jeo. 2, c. 22,
and 8 (Jeo. 2, c. 24), which jjlve the statutory rljjht of set-otV in cases in
which there are mutual debts " beticeen the plaintiff and defendant." See the
juilj^meut in Isbenj v. Hoirden, uhi sup.

[The provisions of t!u> ronunon Luw I'rocedure .\ct. IHC.O (23 & 24 Vict. e.
12<i), which, with an e.\tended riirht of joiiniii; |iartics as piaintitt's in actions,
fjave an, extended ri^ht of set-off to defendants, have been still furtlier en-
lar^jjed l)y the .ludicalure Act, 1873, and the rules made pursuant to the .Judi-
cature .Vet, lH7r).

By these enactnu-nts it is competent for a defendant to set oil* or set up, by
way of counter-claim a<rainst the claims of the plaiutill*, any right or claim,
whether soundina; in damages or not, and the court and every judjje thereof
is empowered to grant to any defendant, in respect of any equitable estate or
right, as well as any legal estate or right claimed by him, all such relief as
he shall have properly claimed by his pleading, and as the said court or any
judge tliereof might have grantetl in any s\iit instituted for that purpose by
tlie same defendant against the same plaintitl'. Tliere are also provisions en-
abling the courts to give a remedy or relief to defendants wlio claim to have
rights over against third parties. See Judicature Act, 1873, s. 24. and U. S.
C. Order XIX., r. 3 ; Order XVI., r. 48, et seq.

A RECENT carefully considered opinion of the supreme court
of the state of New York in the t'ase of Nichols v. Martin, 35
Hun 168, is valuable not only as illustrating the tendency of
most American courts in dealing with cases analogous to the
principal case, but also because treating incidentally of many
of the questions apt to arise in cases of this character.

GEORGE V. CLAGETT. 1365

In Nichols v. Martin, one Isaac Depuysolcl and delivered to the
defendants a quantity of wheat, and received in payment their
promissory note for the price of the wheat payable to his order
in sixty days. Thereafter, but before the maturity of the note,'
the defendants purchased for the trifling sum of *^5 an overdue
note made by Depuy to a thu'd party for a sum in excess of the
amount of the note given by them to Depuy. As a matter of
fact, the wheat sold by Depuy belonged to his wife, and was
sold by him as her agent ; but he had the possession of the same,
and defendants at the time of purchasing supposed he was the
real owner. At the time of the maturity of the note given by
the defendants to Depuy, the latter informed the former that
the wheat belonged to his wife, but they refused to pay for the
same, claiming the right to set-off the amount of his note held
by them. In an action brought against the defendants by an
assignee of the note, the general term held that in no event
were the defendants entitled to a set-off for a greater amount
than the $o actually paid by them for the note. The court
say : " This rule invoked in support of the defence is quite well
defined by authority, and is a somewhat qualified one based
upon principles of natural equity. ... In all the cases before
cited, and all to which attention has been called, the debtor's
claims against the agent, which were allowed to be set off by
the purchaser as against the principal, existed at the time of
the purchase, or were created by dealings between the purchaser
and the agent at and during the time that he was supposed to
be the principal in the transaction of the sale. And the equita-
ble principle applied in support of this right of the purchaser
is that where one of two innocent persons must suffer, the loss
should fall on him who has given the opportunity to cause it.
It is not in its purpose unlike the doctrine which supports
estoppel in pais, although not dependent upon the same circum-
stances. . . . They should not, in view of the equitable rule
which gives relief, be permitted to sj)eculate on his [the princi-
pal's] misfortune."

The rule of law laid down in Nichols v. Martin is significant
as indicating' a desire of American courts to limit somewhat the
application of the doctrine of George v. Clagett, or at least to
keep that doctrine within its original limits. That the decision
in Nichols v. Martin is fair and equitable seems beyond ques-
tion, yet it is by no means certain that the case would be fol-

13GG uEuK(Ji: V. ('LA<ji:tt.

lowed ill olluT jurisdictions. If u coiul htld that the only
effect of the principle established by George v. C'lagett is that
one dealing in good faith witli a factor or agent having posses-
sion of the goods of another, with that other's consent, is to \te
protected against loss, occasioiicd l»y his mistaken belief that
sneh factor or agent is the real owner, then Nichols v. Martin
should l)e followed. But if the scope of (Jeorge v. Clagett is
regarded as wider than the reason for the decision, the opinion
of the New York supreme court would very likely not obtain.
In fact the general term of the Court of Common Pleas of New
York city, a court with a jurisdiction practically co-ordinate
with the supreme court of that state, have laid down princi-
l)les in conflict with the rule of Nichols v. Martin, in the case of
Jianiu'rman v. (^uaekenbush, 11 Daly ")-!•. In Bannerman v.
Quackeid)ush, the defendants, desiring to purcluise goods from
a certain company, bought a promissory iu>te of that company
part due, l>aying for it an amount nHu;h less than the face,
intending to use it for the i)ayment of the goods, and ordered
the goods, promising to pay cash for them. The company had
previously sold all its goods of this nature to the plaintilY, but
he agreed with the company to lill the order and allow the
company a commission therefor. The company delivered the
plaintiff's goods to the defendants with a bill of lading for the
same in the company's name, and the defendants supposed the
goods were the company's. Defendants obtained possession
without paying cash, on the pretext that they wished before
paying for them to oljtain their pay from the party for whom
they were purchasing. Later, when payment was demanded,
defendants tendered the company's overdue note in part pay-
ment. The learned justice delivering the opinion of the Court
of Common Pleas says : -" The off-set was not one arising out
of any transactions between the defendants and the Renz Hard-
ware Company, but the defendants, after they had obtained an
order for a certain quantity of an article which that company
manufactured, and from whom they meant to purchase it, went
and bought the depreciated paper of the company at the enormous
discount of 79 per cent., that they might make 8367 out of an
order for goods for which they were to pay but $522. . . . But
notwithstanding these circumstances, I think upon the authori-
ties that if the defendants had the right to assume when they
purchased the goods that the company Avas the owner of them.

GEORGE V. CLAGETT. 1367

they had the right in this action to set-off the note a valid
demand which they had against the company." This is cer-
tainly carrying the doctrine of George v. Clagett far further than
any other d(^cision either in England or America has gone, and
the result reached seems harsh and inequitable. It is certainly
a perversion of the spirit of the rule of George v. Clagett, which
^was to protect an innocent outsider whom a princij)al had mis-
led by conferring apparent ownership on his factor or agent.
It was not intended to be used as a shield, so as to make every
right of the real owner subordinate to the right of the third
party dealing with such agent, to gain every possible advantage
from the transaction. Yet it may be that this decision is but a
logical extension of doctrine of the undisclosed principal, that
the principal is affected with all the attendant burdens in the
transaction, and is chargeable with everything that could be
charged against the agent.

Principle of George v. Clagett followed in America. — That the
general principle of law enunciated in George v. Clagett pre-
vails in America, is axiomatic. It is only in the application of
the rule to special cases that American decisions sometimes
come into seeming conflict. That a purchaser from an agent
or factor, who has apparent ownership) and possession of goods
really belonging to an unknown principal, with the latter's as-
sent, buying in ignorance of the real ownership and without
circumstances to awaken his inquiry as to it, may set-off against
the demand of the principal any claims or demands he has
against such factor or agent, is established by the following
cases : Gardner v. Allen, 6 Ala. 187 ; Stinon v. Gould, 74 111.
80; Traubt;. Milliken, 57 Me. 63; Baltimore Tar Man. Co. v.
Fletcher, 17 Rep. 557 (Court of Appeals of Maryland) ; Hun-
tington V. Knox, 7 Cush. 371 ; Locke v. Lewis, 124 Mass. 1 ;
Dean v. Plunkett, 136 Mass. 195 ; Hickman v. Craig, 6 Mo. Ap.
583 ; Pratt v. Collins, 20 Hun 127 ; McLachlin v. Brett, 105
N. Y. 391 ; Nichols v. Martin, uM supra ; Bannerman v. Quack-
enbush, uhi supra; Frame v. William Penn Coal Company, 97
Pa. St. 309 ; Conyers v. Magratli, 4 McCord 394.

Knowledge of the purchaser of the real facts will defeat his
right of set-off. — The rule in George v. Clagett does not obtain
where the purchaser knows the agent is not the owner, or where
circumstances are brought to his knowledge, by investigating
which he might have ascertained that the agent was not the

1368 GEORGE V. CLAGETT.

owner; Bernshouse v. Abbott, 10 Vroom 531 ; Stewart v. Wood-
ward, 50 Vt. 81; \Vrif,dit v. Cabot, 89 N. Y. 574; Crosby v.
Hill, 15 Rt'p. 758 (Supreme Court of Oliio); Dunn v. Wriyht,
61 Barb. 250 ; Miller v. Lea, 35 Md. 390, where Alvey, J., says,
" Hence if the character of the selling is equivocal, if he is
known to be in the habit of selling sometimes as principal and
sometimes as agent, a purchaser who buys with a view of cov-
ering his own debt and availing himself of a set-off is bound to
inquire in what character he acts in the particular transaction ;
and if he chooses to make no iuipiiry, and it should turn out
that he has bought of an undisclosed principal, he will be denied
tlie l)enefit of his set-off."

Mere public rumor, or matters known to other persons, but
not brought to the knowledge of the purchaser, will not defeat
his right of set-off. Pratt r. Collins, 20 Hun 127.

Partners entrusting firm property to one partner liable to have a
bonS fide purchaser set-off the indebtedness of the individual part-
ner. — If a partnership so entrusts goods belonging to it to a
partner as agent, so as to enable him to deal with them as his
own, a person who in ignorance of his agency buys such goods
of him, would be allowed the right of paying for them in the
manner agreed U})on by the partner, and would have the right
to set-off a debt of that partner to him; Dean v. Plunkett, 130
Mass. 195.

Contrary American decisions. — The eases of Conable v. L3'nch,
45 IoA\a 84, and lirow ii r. .Morris, 83 N. C. 251, while not pro-
fessing to disregard the principle of George v. Clagett, un-
doubtedly do practically nullify its effect and must be regarded
as contrary to the authorities.

Can the rule be invoked in executory contracts? — A late de-
cision of the Court of Appeals of the state of >*'ew York lays
down the rule that where the contract is executoiy, and before
the goods are delivered to the purchaser, he is informed that
they are not the property of the party v.'ith whom he con-
tracted but belong to a third person ; then by receiving a deliv-
ery under the circumstances the pvirchaser waives all right to
set-off an indebtedness of the agent to him in an action for the
purchase price brought against him by the real owner ; McLach-
lin V. Brett, 105 N. Y. 391. The opinion of Mr. Justice Finch
turns on the fact that in this case, when receiving the goods
bought, the purchaser was not acting in the dark as to the real

GEORGE V. CLAGETT. 1369

ownership, and that until such acceptance no right of set-off
accrued. And the conclusion of the court is sound and just,
provided the purchaser had the option to refuse to receive the
goods on ascertaining the real facts as to their ownership.
There is a strong dictum of the court that he would have such
an option. But that question is not apparently as free from
doubt as the court seemed to regard it.

Right of set-off against the agent of a debt due the defendant by
his principal. — In Young V. Thurber, 91 N. Y. 390, we have the
circumstances of the principal case reversed. In this case the
assignee of the agent sued the defendants for certain merchan-
dise sold them by said agent. The goods belonged to an in-
corporated company which was insolvent at the time, but at
the time of the purchase the defendants supposed the goods
were the agent's. The defendants attempted to set-off certain
claims of this company owing them, attempting to invoke the
rule in George v. Clagett as an equitable reason for the allow-
ance of such set-off. The court disallowed the set-off, but
rested their decision on the fact that the arrangement between
the agent and the company was one by which the former made
advances to the latter for the goods consigned, and was to
reimburse himself out of the proceeds of the sale, and that,
under such arrangement, he did make advances exceeding the
value of the goods consigned. There is no need to say the
decision of the particular case was right. The defendants had
not contracted with reference to a possibility of setting off their
claim against the principal, for they then did not know that
principal had any interest in the property. Whereas, the agent
had sold with the express purpose of indemnifying himself
from the proceeds against the money he had advanced for
that principal. But if we suppose a case where no equities
remained to be adjusted between the agent and the principal,
would a purchaser's right of set-off of a claim due him from the
principal then attach in a suit brought by the agent? Although
he did not purchase expecting to exercise such a right, so that
the principal cannot be said to have misled hira, as in George v.
Clagett, yet the set-off is, it would seem, allowable. The real
party in interest is the principal, — a party indebted to the de-
fendant. Had that principal himself been the actor in the suit,
the right of set-off would, of course, have existed. Because the
plaintiff happens to be his agent the principal should not be

1370 GEOUCIK V. CLACJKTT.

permitted to avoid tin- \vi^d\ consLMiuciict's of ihc state of
accounts ])etvveen the piucliaser and hinisi-lf. 'I'liis correlative
ri<,dit of the }>iU('hascr in these eases to sot-<»tT the debt of the
principal in a suit hrou<,d»t by the agent is nuiintained by a
writer of the hii^hest authority. See Story on Agency, 9th ed.
§§ 404, 4()r>, 4UT ; and see, also, the remarks of Collier, ('. J.,
in the ciuse of (jrar<lner v. Allen, Ala. 187. '• i'he autlu)ri-
ties cited very fully show that it is quite immaterial whether
the principal or his agent is the plaintiff. If the latter sue,
the defendant may avail himself of any claim which he has
against the former, or if the former be the actor in the suit the
purchaser niay set-oft" any claiMi which he has against (he latter,
if he i)nrchased under a just i)elief authorized by the facts that
the agent was the real owner." And it will l)e W(dl in this
connection to consider the ease; liuilbert r. The I'acilic
Insurance Co., "2 Sunni. 471, as indicating how fully the idea
of the real i)ariy in interest is ind)edded in our Liw. In that
case, where an agent had effected insurance for the benelit of
whom it may concern, and brought a suit in his own name on
the policy, the company was not allowed to set-f)fT the agent's
own debt to it. And see, also, for the same purpose, Royce v.
Uanies, 11 Met. 276, a case in point as showing the disposition
made of cases where the agent sues.

Agent in such case if sued cannot set-off a debt due his prin-
cipal by the third party. — \W' have thus far considered the cases
where the piincipal or the agent or factor is the moving i)arty
in the litigation. Before closing the subject it will be well very
briefly to see wh.at rights of set-off, if any, they may have against
such third party wdien sued by him. Su[)pose in a case like
George v. Clagett the factor or agent had been the purchaser
instead of the seller. If sued by the seller for the purchase
price, he could of course set-off any claims he had against the
seller. Could he set-off a claim his principal, for whom lie pur-
chased, had against the seller? Certainly, if his principal
assented, there woidd be no objection on principles of equity,
and it would seem a proper way to adjust the equities between
the parties. The seller is here allowed by the law to charge
one with an obligation which in truth was the obligation of
another, and it is no injustice to allow set-off against his claim
a valid indebtedness of the real party to the sale, provided that
party agrees. The authority, however, is apparently the other

GEOKGE V. CLAGETT. 1371

way ; Waterman on Set-off, § 52 ; Forney v. Shipp, 4 N. C. 527 ;
bnt see Story on Agency, 9tli ed. § 111, and note 7.

Can principal when sued by third party set-off a debt due his
agent? — Where a principal in such a case is sued, he of course
would not be permitted to set-off a debt due by that third party
to his agent, whom he had clothed with such apparent posses-
sion, for the very essence of set-off, mutuality, is wanting;
Waterman on Set-off, § 52; Carman v. Garrison, 13 Pa. St. 158.
But where a debt was really due to him, although nominally
due his agent, he would undoubtedly have the right to set it
off. See Talcott v. Smith, 142 Mass. 542.

Principal cannot set-off debt of broker to him. ■ — Lastly, a
principal is not permitted to set-off a debt due to him from his
own broker, against the demand of one with whom he has con-
tracted for the purchase of goods through the medium of the
broker; Waterman on Set-off, p. 328; Dunn v. Wright, 51
Barb. 244.

SMITH r. HODSON.

[REP0KTKI> 4 1. 1!. 211.]

If a bankrupt on the eve of hix Ininkruptcy fraudulently deliver
<joods to one of his creditors, the assii/nees may disaffirm the con-
tract, and recover the value of the yoods, in trover ; but if they
briny iissumpsit, they affirm the contract, and then the creditor
may set off his debt.

Where the defendant lent hix acceptance to the bankrupts on a bill
which did not become due till after the act of bankruptcy, and
ivas then outstandiny in the hands of third persons, yet the
defendant haviny paid the amount after the commission issued,
and before the action brouyht by the assiynees, is entitled to a
set-off.

Assumpsit for goods sold and delivered to the defendant
by the bankrupts, before, and also by the assignees since, the
bankrui)tcy. Pleas 7i07i assumpsit, and a tender of 131?. 7s. 6d.,
which the plaintiffs took out of court. There was also a set-off.
At the trial at Guildhall before Lord Kenyan, a verdict was
found for the plaintiffs, subject to the opinion of this court on
the following case : —

In August, 1787, Lewis and Potter sold goods to the defend-
ant to the amount of 421., and on the 4th of March, 1788, they
drew a bill on him at two months, for 442/., payable to their
own order, although at that time he was indebted to them in
42Z. only; which bill the defendant accepted. Lewis and
Potter made the following entry in their books : " 4th of
March, 1788, received from James Hodson an acceptance, due
7th of May, 442/. to bills and notes ; to provide 400/." On 26th

1372

SMITH V. HODSON. ' 1373

April several bills were refused payment, by Lewis and Potter,
some of Avhich were presented by bankers on behalf of the in-
dorsees. On the 28th April, 1788, the defendant went to the
house of Lewis and Potter, and bought goods to the amount of
531?. 7.S-. Gf?., which were sent to him with a bill of parcels the
same day ; the goods were sold to the defendant at six months'
credit. On the 29th of April, 1788, Lewis and Potter com-
mitted acts of bankruptcy. On the 9th of May the commission
issued, and they were duly declared bankrupts, and the plain-
tiffs chosen assignees of their estate and effects. The bill for
442?. drawn by the bankrupts, and accepted by the defendant,
became due the 7th of May, 1788 ; the defendant did not pay it
on that day, but in September following paid to Gibson and
Johnson, the holders thereof, 200?. on account of the bill ; and
in October following, before the six months' credit upon the
goods was expired, he paid the residue with interest. The jury
thought the bankrupts gave an undue preference to the de-
fendant in the sale : and gave a verdict for the plaintiffs, dam-
ages 400?. (a). The questions for the opinion of the court are,
1st, Whether the plaintiffs can support this action for the price
of the goods ? 2ndly, If they can support this action, whether
the defendant cannot set off against it the money paid by him
on the above-mentioned bill of 442?.

RiimelU for the plaintiffs, was desired by the court to confine
himself to the second point, as they entertained no doubt upon
the first. As to which he contended that though the sale were
good to charge the defendant in this action, yet he \vas not en-
titled to support his set-off under the 5 Geo. 2, c. 30, s. 28 (V).
The words wdiich will be relied on are mutual credit : but they

(a) A fraudulent preference may son, or mutual debts between the
be bj' way of saZe. See Coo^• v. Calde- bankrupt and any other person, at
cott, 1 M. & M. 522; Ward v. Clark, anytime befoi'e such person became
ih. 499; Bevas v. Venables, 3 Bing. bankrupt, the commissioners, &c.,
N. C. 400; Cash v. Young, 2 B. & C. shall state the account between them,
413. But in Lee v. Hai-t [10 Exch. and one debt may be set against an-
555, 11 Exch. 880], where the sale other; and what shall appear to be
Avas real and to a person not a credi- due on either side, on the balance of
tor, though at a gross undervalue such account, and on setting such
and by an insolvent trader, the court debts against one another, and no
doubted whether it could be deemed more, shall be claimed or paid on
an act of bankruptcy. either side respectively." [The cor-

(b) Which enacted, that wlicre responding enactment in the 46 & 47
" there hath been mutual credit given Vict: c. 52, is contained in s. 38.]

by the bankrupt and any other per-

1374 SMITH V. IIODSON.

were by no means intended to he use<l in so extensive a sense
as the one now jmt on tlicni l)y the (U'tt'iidaiit. The fjiviii^ of
credit is merel}' giving a future day of payment for a pre-exist-
ing debt; and to entitle a defendant to set it off, it must exist
previous to the act of bankruptcy. As, where goods are sokl
to be i)aid for at a future day, the vendee becomes a debtor for
the vahie upon the delivery, though payment cannot Ikj exacted
from him till the day arrives ; in the meantime tlie vendor is
his creditor to that amount; and in that sense only is the word
credit to be understood in the act. This appears furllicr from
the subsequent words of the statute, for the commissioners an*
directed to state the account between the })arties an<l claim or
pay only so much as shall a])[)ear due on the Jxilam-e of xuch ac-
count. In order, therefore, for the party to set off any dfinand,
it must be such as may be made an item in the account, and
either certain or reducil^le to a certainty at the time of the act
of bankruptcy committed. The act itself says, that the balance
of the account is to be made appear, "on setting ftuch dehts
against one another;" which plainly shows that nothing more
was meant by the word credits than such debts as were payable
at a future day. Then how does the statute apply to this case ?
There was no debt existing between the bankrupts and the de-
fendant at the time of the bankruptcy ; nor was it certain there
ever would be one : for, in case of the defendant's bankruptcy
or refusal to pay, the holder might have i)roceedcd against
the estate of the drawers, and recovered the amount ; and tliat,
perhaps, after the defendant's acceptance had been admitted as
an item of account between him and the bankrupts ; and, at all
events, no debt could arise till after payment by the defendant,
which was long after the bankruptcy, and therefore could not be
set off ; for at the time the bill was outstanding in the hands of
third persons, and was therefore the subject of mutual credit, if
at all, between them and the bankrupts. But in Groome's Case
(a). Lord Hardwicke was clearly of opinion that a debt arising
on a contingency after the bankruptcy could not be set off ;
and it has been determined, that though a note indorsed after
an act of bankruptcy may be proved under a commission
against the drawer (5), yet it cannot be set off against an ac-
tion by his assignees (c). The cases Ex jjarte Beeze (c/), and

(a) 1 Atk. 119. vide tamen 6 G. 4, c. IG, s. 50, and 3

(6) Ex parte Thomas, 1 Atk. 73. M. & W. 30.

SMITH V. HODSON. 1375

JEx parte French (a), assignee of Cox v. Fenn (5), were all of
them cases where the bankrupts were actually indebted to the
defendants before the bankruptcies, in the sums which they
set off against the demands of the assignees ; which differs them
materially from the present ; but even supposing this were
such a demand as could in a fair transaction be set off in a
court of law under the statute, yet it cannot avail the defend-
ant in this case, where the whole is vitiated by fraud. It there-
fore becomes material to examine what part of the transaction
may be substantiated, and what is void. There is no fraud in
the mere act of sale ; and the defendant must be bound by that
so far as he made himself liable for the amount of the goods ;
that would have been the case had the sale been made to a per-
son who was no creditor of the bankrupts ; but the objection
arises to the fraudulent use now attempted to be made of the
sale. No party is entitled to set off a demand against the
assignees of a bankrupt, for which he could not have main-
tained an action, or which he could not have proved under a
commission. Now, if the defendant could not have done either
in the present instance before the bankruptcy, he shall not be
permitted to recover the amount indirectly in this manner ; for
that would be to permit him to avail himself of his own fraud.
Grihbs, for the defendant, insisted first, That if the whole
were to be considered as a bond fide transaction, the defendant
was entitled to set off the sum paid under his acceptance ; and
2ndly, That the finding of the jury, as to the undue preference,
could not vary the case in favour of the plaintiffs in this action.
The first question depends on the stat. 5 Geo. 2, c. 30, s. 28 ;
the true construction of which is, that wherever there is mutual
credit between the bankrupt and another person before the
bankruptcy, the debts may be set off against each other,
although one of them may accrue after the bankruptcy, and
although that one debt could not form an item of an account,
so as to enable the bankrupt and such other person to strike a
balance. The plaintiff's argument, That nothing can be set off
under the statute, but that which may form an item of an ac-
count at the time of the bankruptcy, and the payment of which
is only postponed for a time, directly militates against the de-
cision of French v. Fenn. If that case be law, the construction
now attempted to be put on this statute by the plaintiff's coun-

(a) lb. 230. (,h) Tr. 23 Geo. 3, Co. Bk. L. 2nd ed.

1370 SMITH V. HODSON.

sel cannot pri'viiil. In tliat case Fenii owed nothing to Cox
previous to the bankruptcy; so here Lewis and l^otter owed
Hodson nothing previous to their bankruptcy ; but Fenn had
been intrusted by Cox with that upon which he probably would
become his debtor, namely, the sale of the jewels, in which Cox
was interested one-third part ; so Lewis and Potter had been
intrusted by Hodson with that upon which they probably would
become his debtors, sc. with his acceptance for 442/., he liaving
effects to the amount of 42/. only ; there Fenn, upon the credit
of the jewels intrusted to him, trusted Cox on another account ;
so here Lewis and Potter, on credit of the acceptance intrusted
to them, trusted Hodson on another account, namely, for the
goods in question ; there, after the bankruptcy of Cox, Fenn
received a sum of money upon the sale of the jewels intrusted
to him, which became due to Cox's estate ; so here, after the
bankruptcy, Hodson paid a sum of money upon the acceptances
intrusted to them, for which he has a claim upon their estate.
In that case the court allowed the set-off, and yet at the time
of Cox's bankruptcy, no balance could have been struck be-
tween the paities, because the defendant's claim arose from the
produce of the pearls afterwards. What that proiluce would be,
could not be known at the tinu; of the bankruptcy, and conse-
quently could not then form an item in an account l)ctween the
parties. Secondly, The finding of the jury, as to the undue
preference, is either nugatory as to the plaintiffs, or it operates
as a ground of nonsuit. The plaintiffs have an option either to
affirm or disaffirm the contract : if the former, the defendant is
entitled to set off his demand ; if the latter, though the plain-
tiffs might recover in trover, they cannot maintain this action.
The jury found that there was a fraud in the sale ; the plaintiffs
cannot therefore contend that the fraud is confined to the use
made of the sale. If the defendant had obtained his defence
by fraud, it would not have availed; but it does not follow tliat,
because there was a fraud in the sale of goods from the l^ank-
rupt to the defendant, the latter shall not set off a cross demand
against the price of the goods. The fraud (if any) was in the
sale of the goods ; and the effect which it has is this (a), viz.
that the bankrupt conve3'ed no property in the goods to the
defendant, and that it was a naked delivery ; if so, the plaintiffs
should bring trover, not assumpsit.

(a) Cooke, B. L. 2nd ed.

SMITH V. HODSON. 1377

Russell in reply. — With respect to the case of French v.
Fenn^ which seems to have been principally relied on by the
other side, there are two very material distinctions between that
and the present case ; there did exist mutual debts between the
parties in that case, though the precise amount was not actually
ascertained at the time of the bankruptcy, but still it was capa-
ble of being reduced to a certainty at any time by the sale of
the jewels ; and if Fenn had become a bankrupt instead of Cox,
it cannot be denied but that Cox might have come in under
Fenn's commission for a third of the value of those jewels.
Again : In that case the jewels were in the hands of the party
between whom and the bankrupt the account Avas to be settled,
and the mutual debts and credits allowed; whereas here the
acceptance was in the hands of third persons at the time of
the bankruptcy, without any certainty that it would ever be dis-
charged by the defendant.

Our adv. vult.

Lord Kenyon, C. J., now delivered the opinion of the court.
His lordship, after stating the facts, said, We have considered
this case, and are of opinion that the defendant has made a
sufficient defence against the action in its present form, and
consequently that a judgment of nonsuit must be entered. It
is expressly stated in the case that the goods in question were
delivered by the bankrupts to the defendant with a view to
defraud the rest of the creditors ; and therefore an action might
have been framed to disaffirm the contract, wliich was thus
tinctured with fraud ; for, if the assignees had brought an ac-
tion of trover, they might have recovered the value of the goods.
The statute 5 Geo. 2, c. 30, s. 28, enacts, that where it shall
appear to the commissioners that there hath been mutual credit
between the bankrupt and any other person, or mutual debts
between the bankrupt and any other person, before the bank-
ruptcy, the commissioners or the assignees shall state the ac-
count between them, and one debt may be set against another ;
and the balance only of such accounts shall be claimed and
paid on either side, in the most extensive words ; and therefore
we are perfectly satisfied with the cases Ex parte Deeze (a),
and French v. Fenn; but, if an action of trover had been
brought instead of assumpsit, this case would have differed

(a) 1 Atk. 228.

1378 SMITH V. IIODSUN.

materially from those two ; because in both those cases the
goods had got into the hands of tlie respective parties prior to
the bankrui)tcy, and without any view of dt'fran<lint,r the rest of
the creditors ; and, therefore, according to the justice of those
cases, whetlier trover or assumpsit had been l)rought, the wliole
account ought to havi- been settled in the way in which it was,
because the situation of the parties was not altered with a view
to the bankruptcy: but here it was; and if trover had l>een
brought, the defendant would have had no defence; and those
cases would not have availed him. lUit this is an action on the
contract, for the goods sold by the bankrupt; and altliough the
assignees may either aflirni or disiilHrni the contract of the bank-
rupt, yet if they do aflirm it, tliey nnist act consistently through-
out : they cannot, as lias often been observed in eases of this
kind, Itlow hot and eold ; and as the assignees in this ease
treated this transaction as a contract of sale, it must be pursued
througli all its consequences, one of which is, that the party
buying may set up the same defence to an action brouglit by
the assignees, which he might have used against the bankrupt
himself; and consequently may set off another debt which was
owing from the bankrui)t to him. This doctrine is fully recog-
nized in Hltchin v. Campbell (rt), and iit King v. Leith (h).
Now here the assignees, by bringing this action on the contract,
recognized the act of the bankrupt, and must be l)Ound l)y the
transaction in the same manner as the bankrupt himself would
have been : and if lie had brouglit the action, the whole account
must have been settled, and the defendant would have had a
right to set off the amount of the bill. Therefore, on the dis-
tinction between the actions of trover and assumi)sit, we are all
of opinion that a judgment of nonsuit must be entered.

Judgment of nonsuit (c).

This case is one of frequent reference upon the subject of mntunl credit ;
but as the leadiug case upon that branch of law is unquestiona))!}' Rose v.
Hart, it seems best to append any remarks on the doctrines of mutual credit
and set-oft' to that decision.

The important principle which Smith v. Hodson is here inserted as estab-
lishing, is, that a man who has his option whether he will affirm a particular act

(a) 2 Bl. Rep. 827. 378; Smith \. Gale, ib. 364; and

(6) 2 T. R. 114. Hnlme v. Mugglestone, 3 M. & W.

SMITH V. HODSOX. 1379

or contract, must elect either to affirm or disaffirm it altogether ; he cannot adopt
that part ichich is for his own benefit, and reject the rest. " He cannot," to use
Lord Kenyon's expression, " blow hot and cold."

This principle, as his lordship in the text observes, is older than the case
of Smith V. Hodson. In Wilson v. Foulter, 2 Str. 859, an agent had been
secretly employed on behalf of a bankrupt after his bankruptcy, to lay out
money upon India bonds. The assignee, upon discovering the fact, seized
some of the bonds in the agent's hands, and accepted them as part of the
estate, and then brought an action against him for the money with which the
other bonds were purchased. The court was of opinion that the acceptance
of part of the bonds was an affii'mauce of the agent's act, and that the
assignees could not affirm one part, and disaffirm another. In BiUon v. Hyde,
1 Atk. 128, a bankrupt had, in the course of dealing, after the bankruptcy,
paitl 3000Z. to petitioner, and petitioner had in the same dealing paid the
bankrupt 712L Lord Hardwicke decreed that the assignees, having adopted
the bankrupt as their factor, must take him as such, for every purpose; and
he decreed that the 712Z. should be allowed.

The doctrine laid down in the text has been frequently acted on since the
decision of Smith v. Hodson. It will be found laid down by Lord Ellen-
borough in Hovil v. Pack, 7 East, 164; and by Lord Tenterden, in Ferguson
V. Carrington, 9 B. & C. 59; and see Selway v. Fogg, 5 M. & W. 83; Biissell
V. Bell, 8 M. & W. 277 ; and 10 M. & W. 350.

So if a party, with knowledge of fraud in a contract, which would enable
him to avoid it, treat it as a subsisting contract, he cannot afterwards repu-
diate it. See Campbell v. Fleming, 1 A. & E. 40 ; and generally if a party
having the right to repudiate or affirm a transaction, take the latter course,
he cannot afterwards recur to his right of repudiation. See Richardson v.
i?HK», 2 Q. B. 218 ; .Jordan v. Norton, 4 M. & W. 155.

On the same principle proceeded the decision in Birch v. Wright, 1 T. R.
378, cited ante, vol. i., in the notes to Keech v. Hall, and which establishes
that a man cannot at once be treated both as a tenant and a trespasser. That
was an action for use and occupation, brought against the defendant, who,
on the 18th Julj', 1777, was tenant of certain lands to Bowes, at 223Z. 10s.
per annum, payable on the 12th of May and 22nd of November. Bowes had,
on the 17th of July, 1777, conveyed the reversion by way of security to the
plaintifl" and Goostrey, Avho was since dead, and they had brought an eject-
ment for the lands against the defendant, and obtained judgment, laying their
demise on the 6th April, 1785, and in September, 1785, had obtained posses-
sion. All rent had been paid up to the 22nd November, 1784, except the sum
of 81/. 15s. Under these circumstances, the court held that the plaintiff was
entitled to the unpaid rent, up to the day of the demise laid in the ejectment,
viz., 6th April, 1785; but not to any rent for the time wliich had elapsed
since. "The plaintiff," said Duller, J., " has not waived the tort. He has
brought his ejectment, and obtained judgment on it, which is insisting on the
tort, and he cannot be permitted to blow both hot and cold at the same time.
The action for use and occupation, and the ejectment, when applied to the
same time, are totally inconsistent; for in one the plaintiff says the defend-
ant is his tenant, and therefore he must pay him rent; in the other, he says,
he is no longer his tenant, and therefore he must deliver up the possession.
He cannot do both. The plaiutifl''s counsel admit that an action would lie for
the mesne profits; it is of course after ejectment, and may be maintained
without proving any title. The ejectment is the suit in which the defendant

1380 SMITH V. lloDSnN.

is considered as a trespasser ; aiul unless tlie jinlfrmont in ejectment be laid
out f)f tlie case, tlie tort is not waiveil. The ilifLMniniii slanils convicted on
record by judiruient as a trespasser from tiie «;tii April, 17H5."

[For tlie like reason in a recent case wliere tlie owner of the soil of a navi-
{jablc lake over wliicli there was a public highway had taken to a pier wnjuy-
fuUy ere<-ted upon his land, it was held that lie could not maintain an action
against the owner of steamboats for causing persons to pass over tlie pier
for the purpose of navigating the lake, MarsUall v. i'Ueswnter Steam \av.
Co., L. R. 7 y. B. KIC]

It seems extraordinary that the principal case of Smith v. Iloihon, should
not have been mentioned in the argument of Burhanan v. Findldij, l) B. & C.
TM<. It is true that it is distinguishul)le from that case; but the distinction
was not then established, as it has l)een since, by Thorpe v. '/'horpr, :\ B. &
Ad. ")«:$. In Bnrhunan v. FiiuUiiij, the assignees of certain bankrupts sued
the defendants for money had and receiv<'d by the defendants to the use of
the bankrupts before, and of the assignees after, the liaiikniptcy. Tiie bank-
rupts, who were merchants at Liverpool, had remitted a l)ill to the defend-
ants, who were merchants in London, with directions to get it discounted,
and apply the proceeds in a particidar way. The defendants did not get it
discounted, but received tiie money when it became due, which happened
after the bankruptcy. Before the bankruptcy, the l)anknipts iiad rccpusti-d
to have the l)ill returned to them. It was held that tlie defendants could
not, in this action by the assignees, set oft* a debt due to them by the bank-
rupts.

This case was fully canvassed and explainetl in J'hnrjif v. Thorjir, sitpra.
In that case, the defendant had received from the plaintiff a bill, indorsed
and payable to the plaintiff, for the purpose of being paid to W. ; he had not
paid it to W., but had received the money at the maturity of the bill; and
the (piestion was. whether, in an action for that money, he could not plead a
set-otr. The court held that he might. " If," said I'arke, J., '• the i)laintiff
hail chosen, instead of assumpsit for money had and received, to bring a
special action for the breach of duty, there could have been no set-fill", lie-
cause it would have been an action for unliquidated ilania-^es." [See now,
however, the Judicature Act, 1873, 3G & 37 Vict. c. GC, Order XIX., Rule 3.]
" But, by bringing assumpsit for money had and received, he lets in the con-
sequences of that action, one of which is the right of set-off. The expres-
sions of the court in Burhanan v. Findlay must be taken with reference to
the subject-matter. In that case, the bills remained in the hands of the
defendants, unapplied to the purpose for which they had been sent, when
the parties who had sent them countermanded the order for their being dis-
counted, and ref|uired to have them returned, which was not done. It was
not a case of mutual credit, because the transaction, on the part of the
defendants, was against good faith. The assignees, in that case, did not
affirm any contract by bringing an action for money had and received, which
merely stood in the place of an action of trover."

In accordance with this passage is the observation of Patteson, J., in
Groom v. West, 8 A. & E. 772. " If," said his lordship, "a party sends an-
other's bills to be applied to a specific purpose, the receiver cannot, by apply-
ing them to his own needs, alter that purpose, and make the trust a debt.
This appears from Buchanan v. Findlay, and other cases." Russell v. Bell,
10 M. & W. 340.

In the case of Hill v. Smith, 12 M. & W. 618, the same principle was

SMITH V. HODSON. 1381

applied, where a sum of money was paid by K. to a banking company for the
purpose of providing foi» particular bills. K. being then indebted to the
company in a larger amount, they placed the sum to the credit of his account
with them, instead of following his instructions as to its application. The
bills were refused acceptance, and while they remained unpaid in the hands
of the holder, K. became bankrupt : it was held that his assignees might
recover the whole amount in a special action of assumpsit against the com-
pany. " It was well argued," said Baron Parke in delivering the judgment
of the court, " by Mr. Cowling, that if a bill of exchange had been delivered
to the defendants to be handed over, and they had converted it to their own
use, the assignees might have brought an action of trover, and recovered the
full value of the bill at the time of the conversion ; and that it made no real
difference that money, not a bill, was misapplied." See also Alder v. Keirjhley,
15 M. & W. 117; Colson v. Welch, 1 Esp. 379 ; and Bell v. Carey, 8 C. B. 887.

Brewer v. Sparrow, 7 B. & C. 310, and Bxirn v. Morris, 4 Tyrwh. 486, are
also two cases ejusdem generis, in one of which the principle laid down in
Smith V. Hodson was held applicable, while the other was considered distin-
guishable. In Brewer v. Sparrow, 7 B. & C. 310, the assignees of a bankrupt
brought trover for chattels of the bankrupt, of which the defendant had
taken possession. The chattels were part of the bankrupt's stock in trade,
which, on the bankrupt's absconding, the defendant had taken possession of,
and carried on the trade. He had, however, rendered to the assignees a fair
account, and paid over the balance. "The defendant," said Bayley, J., "in
the first instance, was a wrongdoer, and the plaintiffs might have treated him
as such. But it was competent to them, in their character of assignees,
either to treat him as a wrongdoer, and disaffirm his acts, or to affirm his
acts, and treat him as their agent; and if they have once affirmed his acts,
and treated him as their agent, they cannot afterwards treat him as a wrong-
doer, nor can they affirm his acts in part and avoid them as to the rest. By
accepting and retaining the balance Avithout objection, they affirmed his acts,
and recognised him as tlielr agent, and having so done, they are not at liberty
to treat him as a wrongdoer." Judgment for defendant.

The above case was relied on as in point, but held distinguishable, in Burn
V. Morria, 4 Tyrwh. 486. That was an action of trover, brought for a 20L
bank-note, lost by a clerk of the plaintiff, found by a woman in the street,
taken, at her request, by the defendant's son to the bank, and there changed
by his father's directions, and the proceeds, minus two sovereigns, given
back to the wonuin. The woman was afterwards taken before the Lord
Mayor, and seven sovereigns, part of the proceeds, found on her, and given
back to the plaintiff. After a verdict for 13Z., it was moved, in pursuance of
leave, to enter a nonsuit, upon the ground that the receipt of the II. was an
affirmance of the whole transaction. Brewer v. Sparro^c, was cited : but Lord
Lyndhurst said, "In that case the whole proceeds of the sale were taken;
that is an adoption of the act. Here the receipt of the 11. does not ratify the
act of the parties, but only goes in diminution of damages."

[It is obvious that in this case, to have construed the receipt by the plain-
tiff, of that portion of the proceeds of the note which could be followed, as
an adoption of the previous wrongful acts, would have been to give to the
transaction a meaning which it did not really bear ; the receipt, however, of
a portion only of the proceeds of the Avrongful sale of goods may amount
to an adoption of the act of selling, if this appears to have been the intention
of the parties; see Lythgoe v. Vernon, 5 H. & N. 180, in which case the Court

1382 SMITH V. HUDSON.

of Exchequer hclil, upon deimirror, that the owner of goods who had, iifter
a tortious sah', cUiiiued the proceeds, and received a portion of thrm, coulil
not afterwards treat tiie seller as a wronj^doer, and maintain trover against
him. In tliis case Bninr v. Sparrow was cited, l)Ut not Hum v. Mi)rrin.'\

But where the purcliasers of goods from a baniirupt, after notice of an act
of banlvruptcy, refused to pay for tliem upon a ilemaud made by tlie as-
signees, wlio also sent to theuj an invoice of tlie goods; it was lield, the
demand made by the assignees not liaving been complied with, that their acts
did not allirm the sale, and that they might recover the value of the goods in
an action of trover, Valpij v. Zanders, 5 C. B. 886. See also AfurrLi v. Robin-
son, :$ B. & C. 196.

[The subject of this note was much considered in tlie recent case of Smith
V. liahr, L. 11. 8 C. T. :?r,0, 42 L. J. C. P. 15r>, where Bovill, C. J., in his
judgment, points out that " if an action for money had and received is
brought, that is, in point of law, a conclusive election to waive the tort; and
so the commencement of an action of trespass or trover is a conclusive elec-
tion the other way. But there is another class of cases in wliich an act is of
an ambiguous character, and may or may not be done with the intention of
adopting and alllrming the wrongful act. In such cases the (luestion whether
the tort has been waived becomes ratiier a matter of fact than of law." In
that case it was held that the l)ankru|>t's trustee, by getting a fraudulent bill
of sale set aside by the Court of Bankruptcy and receiving from the defend-
ant the proceeds of the gooils compriseil in it, which had been sold by the
defendant, had precluded inmself from suing in trover for tlie goods. The
plaiiitiir's i)roceedings were eitlier ecpiivalent to an action for money had and
received, or amounted in fact to an allirmance of the wrongful sale.]

As to the right of the assignees of a bankrupt to disulllrm an execution
against the bankrupt's goods fraudulently procured by himself ; and as to the
efl'ect of such disallirmance, see Stei-enson v. Xeirnham, [13 C. B. 285], 22
L. J. C. V. 1 10.

In PouM'll v. Rccs, 7 A. & E. 426, Rees had before his deatii tortiously taken
coal from laud belonging to rowell, Hughes, and Protliero : it was held that,
the coal having been sold before Hees' death, money had and received would
lie against his administrator for tlie proceeds of the coal taken more than
six mouths before that event, and trespass for the coal taken afterwards,
under stat. 3 & 4 W. 4, c. 42, s. 2. This was, however, on the ground that
the subject-matter of each action was distinct. The " intestate," said Lord
Denraan, " was guilty of a series of trespasses, and not of one single wrong-
ful act. The plaintifl's, therefore, have only pursued difierent remedies for
ditt'eront injuries."

[So where in ejectment for alternative breaches, viz., permitting a sale by
auction upon the demised premises and non-payment of rent accruing due
subsequently, the defendant paid the rent due into court, and the plaintiff
took it out in satisfaction, it was held that the acceptance of the rent under
such circumstances did not amount to a waiver by the plaiutifl* of his right
to bring ejectment In respect of the alternative breach, Toleman v. Portbtiinf,
L. R. 7 Q. B. 344, 41 L. J. Q. B. 98, and see the notes to Dnmpor's Case, ante,
vol. i., as to waiver of forfeiture.]

Where the defendants had wrongfully taken possession of the money of
the plaintift', and paid the amount into a bank in their joint names, it was
held that the plaintiff might waive the trespass and recover the amount as
money had and received, Xeate v. Harding, G Exch. 349. As to the right to

SMITH V. HODSON. 1383

waive the trespass where tliere has been a wrongful entry on land, and to
sue for use and occupation, see Turner v. Cameron's Coalbrook Steam Coal
Co., 5 Exch. 932 [and the notes to Keech v. Hall, ante, vol. i.

Where the tort is not waived, but an action is brought bj' the bankrupt's
trustee for the conversion of the goods, as it was suggested in the principal
case might have been done, there must be an avoidance of the contract by
the trustee, and therefore a demand and refusal are necessary before action
brought. But this is not so where the tort is waived and an action brought
for the proceeds of the conversion, Heilbut v. Nevill, L. R. 5 C. P. 478, 39
L. J. C. P. 2-15. That the bankrupt's trustee has the I'iglit to bring such an
action, see Marks v. Feldman, L. R. -i Q. B. 481, 38 L. J. Q. B. 220.]

If a party has the option to affirm or disaffirm a particular
act or contract, he must either affirm or disaffirm it altogether.
Man}- of the cases result from insolvency or the transactions of
principal and agent. It has been held that if an agent, to pay
his own debt, sells his principal's property, the latter cannot
maintain assumpsit against the purchaser, but should have
brought trover; Whitlock v. Heard, 3 Rich. 88. In Bennett v.
Judson, 21 N. Y. 238, it was held that the principal, having ac-
cepted the proceeds of the sale of land, was liable in damages
for material misrepresentations of the agent ; see Stone v.
Denny, 4 Met. 151 ; Stockwell v. U. S., 13 Wall. 531, 567. And
in accordance with the opening proposition, a principal in en-
forcing a sale made by his agent, cannot allege that the agent
exceeded his instructions in warranting the property ; see
Chandelor v. Lopus, note.

An important feature of the subject is the effect of the bring-
ing of a suit in precluding the bringing of another inconsistent
with it. The master of a vessel exceeded his authority by dis-
posing of the cargo to pay a debt already due from the owner
to the vendee. The assignee of the bill of ladino- brought an
action of assumpsit against the vendee and then discontinued
it and resorted to one of trover. The court held that discon-
tinuing before trial did not amount to ratification ; Peters v.
BalUstier, 3 Pick. 495, 505. See Butler v. Hildredth, 5 Met. 49,
in which it was held that bringing an action for the price and
securing the demand by an attachment, was an affirmation of
the sale and the waiver of the right to disaffirm it. In Xield
V. Burton, 49 Mich. 53, it was held that bringing assumpsit
precluded the plaintiff from afterwards maintaining trover,
although the court had no jurisdiction of the first action ; see

1384 SMITH V. IIODSON.

Heuimanii v. Van l)uren, 44 Mich. 49G ; Thompson v. Howard,
31 Id. 309. " The principal upon being informed of an act of an
agent in excess of his authority, lias the right to elect whether
he will adopt the unauthorized act, or not, and so long as the
condition of the parties is unchanged, he cannot he prevented
from such adoi)tion because the other party to the contract may
for any reason prefer to treat the contract as invalid, and his
election once made is irrevocable ; " Andrews v. The ^Etna Ins.
Co., 92 N. Y. 59G, (104 ; 85 Id. 334.

" The defence of waiver by election arises where the remedies
are inconsistent ; as where one action is founded on an alhrm-
ance and the other upon a disallirmance of a voidable contract,
or sale of property. In such cases any decisive act of afhrm-
ance or disallirmance, if done with knowledge of the facts, de-
termines the legal rights of the parties once for all. The in-
stitution of a suit is such decisive act; and if its maintenance
necessarily involves an election to allirm or tlisallirm a voidable
contract or sale, or to rescind one, it is generally held to be a
conclusive waiver of inconsistent rights, and thus to defeat any
action subsequently brought thereon." Accordingly a bill in
equity for specific performance and an action at law in dam-
ages for breach, are l)oth in affirmance of the contract and are
not inconsistent remedies, and the plaintiff may be compelled
to elect; Connihan v. Thompson, 111 Mass. 270; see Gardner
V. Lane, 98 Mass. 517 ; Hooker v. Hubbard, 97 Id. 175 ; Morris
V. Rexford, 18 N. Y. 552; Rodermund v. Clark, 46 Id. 354;
Warren v. Spencer Water Co., 143 Mass. 9, 15; Eliot i'. McCor-
mick, 144 Id. 10 ; Bunch v. Grave, 111 Ind. 351, 357 ; Lee v.
Templeton, 73 Ind. 315 ; Browning v. Bancroft, 8 Met. 278.
If a party sues on a promissory note and obtains a verdict, he
cannot in another suit between the same parties, in which he is
defendant, maintain that although in form a promissory note
the transaction was in effect a payment ; Lilley v. Adams, 108
Mass. 50 ; see Sears v. Carrier, 4 Allen 339. Cases in which it
was held that a party was bound by his election are Washburn
V. Great Western Ins. Co., 114 Mass. 175 ; Steinbach v. Relief
Ins. Co., 77 N. Y. 498, 502 ; Fields v. Bland, 81 N. Y. 239 ; Stod-
dard V. Cutcompt, 41 la. 329 ; Thompson v. Howard, 31 Id. 309 ;
Sloan V. Holcomb, 29 Id. 153. It has been held that one who
has received a legacy under a will cannot contest the validity
of the will without restoring the legacy, or bringing the money

SMITH V. HODSON. 1385

into court ; Lee v. Templeton, supra ; Holt v. Rice, 64 N. H.
398 ; 20 Am. Rep. 138 ; see State v. Adams, 71 Mo. 620.

" An election made in ignorance of material facts is, of
course, not binding, when no other person's rights have been
affected thereby. So if a person, though knowing the facts,
has acted in misapprehension of his legal rights, and in igno-
rance of his obligation to make an election, no intention to
elect, ,and consequently no election, is to be presumed ; " Wat-
son V. Watson, 128 Mass. 152, 155; Anderson's Appeal, 36
Penn. St. 176; Wells v. Robinson, 13 Cal. 133; see Patterson
V. Gandasequi, note. A joint and several bond or promissory
note must be treated as one or the other, and after a joint judg-
ment thereon one of the obligors or promisors cannot be sued
separately ; United States v. Price, 9 How. 83 ; Beltzhoover v.
Commonwealth, 1 Watts 126 ; Pickersgill v. Lahens, 15 Wall.
110, 144; contra. United States v. Cushman, 2 Sum. 436. If
the landlord has the option to treat his tenant either as a tres-
passer or as being rightly in possession he must choose; Mc-
Kildoe V. Darracott, 13 Gratt. 278; Stuyvesant v. Davis, 9
Paige 427. A judgment against either i^rincipal or agent after
the former is disclosed estops from suing the other; Garrard
V. Moody, 48 Ga. 96 ; Tuthill v. Wilson, 90 N. Y. 423. It has
been held that the mere suing both without judgment is not an
election to hold the principal and discharge the agent; Matt-
lage V. Poole, 15 Hun 556 ; Fontaine v. Eagle Man. Co., 52 Ga.
31. Privies as well as immediate parties are bound by the
estoppel of an election ; Fire Ins. Co. v. Cochran, 27 Ala. 228 ;
Merrick's Estate, 5 W. & S. 9; Rawson v. Turner, 4 Johns.
469 ; Patterson v. Gandasequi, note.

Often the ground taken by a party to a suit deprives the
other of a good defence, or prevents recovery on a valid cause
of action. Such party cannot, to the injury of his opponent,
shift his ground in a subsequent suit. It was held where de-
fendants procured the dismissal of a cause hi one court upon
the ground that it was properly pending in the court of
another county to which it had been transferred, that they
were estopped to deny the jurisdiction of the court of the other
county; Perkins v. Jones, 62 Iowa 345. A defendant de-
feated an action on the ground that a third person should have
been joined with the plaintiff as a partner ; it was held that he
. could not deny the partnership in a subsequent suit for the

1386 SMITH V. HUDSON.

same debt by both ; Kelly v. Eieliman, ;'> Wharton 446; 3 Id.
419; see Garrett v. Lyle, 27 Ala. a8G ; Variek r. Kdwanls, 11
Paige 289; Hayes r. Giidykunst, 11 Pemi. St. 221; Taylor v.
Parkhurst, 1 Id. 197; Martin v. Ives, 17 S. & U. 304; Queen
V. Sandwich, l'> C^. H. ')63, o71 ; Powell r. WashinL,^ton, lo Ala.
803; The Hark lldwin, 1 S|>rague 477: W'cidon r. Lan«lreaux,
2»i La. Anil. 72!>; Smith i\ McNeal, 68 IVnii. St. 164; Hank v.
Deiiiiis, 37 111. 381 ; Vanleer's Appeal, 24 Penn. St. 224; Dewey
V. Hell, 5 iMlen Iti."); Foster v. Hettsworth. 37 Iowa 41o; Koon
V. Snodgrass, iH W. \'a. 320; McLeod r. .lohnson, 28 Miss.
:571i Potter r. Adams, 24 Mo. 109; Railroad Co. v. Hank, 102
U. S. 14; Garber v. Doersom, 117 Penn. St. 162. Fiuther
cases whieh hold that one cannot allirm those paits ot a trans-
action ill his hivor and disatlirm the rest to (he injury of
others are Adlum v. Vanl, 1 Kawle 163; Garnham r. Rogers,
1 Dickens 63; Pickett v. Hank, 32 Ark. 346; Moller v. Tuska»
87 N. V. If.t'i; Loll. V r. Hailcy, 4.") M.l. 417.

For cases which hold lliat t'raudulciit or illegal acts may be
void as to those injured thereby, yet binding on the doer and
volunteers under him, see Seal u. Duffy, 4 Hair 274; Carr v.
Acroman, 11 Ex. oOti; Wileocks v. Wain, 10 S. vfc R. 380; Man-
ufacturers' Hank v. Hank of Pennsylvania, 7 W. & S. 33'); Van-
dyke V. Christ, 7 Id. 373; Kenneman v. Miller, 2 Md. 407;
Loney v. Loney, 2 Carter 196; Thomiison v. Dougherty, 12 S.
& R.'448; Cushwa v. Cushwa, 5 Md. 44.

The rule under consideration is often applied in the case of
wills. Wlicic a testator gives the property of A. to H., and
then gives A. a legacy, the rule is well established at law, as
well as in equity, that if A. elects to take the legacy, he shall
not set up any right or claim of his own "which shall defeat or
in any way prevent the full effect and operation of every part
of the will ; " Hyde v. Haldwin, 17 Pick. 303, 308 ; Collins v.
Woods, 63 111. 285; Noe v. Splivalo, 54 Cal. 207; Wise v.
Rhodes, 84 Penn. St. 402 ; Smith v. Smith, 14 Gray 532 ; Wat-
son V. Watson, 128 Mass. 152 ; Brown v. Brown, 108 Mass. 386.
The principle is extended to a widow's dower at common law ;
Savage v. Burnham, 17 N. Y. 561, 571 ; Lord v. Lord, 23 Conn.
327 ; Higginbotham v. Coonell, 8 Graft. 83 ; Fulton v. Fulton,
30 Miss. 586 ; see Sanford v. Sanford, 58 N. Y. 69 ; s. c. 45 Id.
723 ; Asch v. Asch, 47 Hun 285 ; Konvalinka v. Schlegel, 104
N. Y. 125 ; Yorkly v. Stinson, 97 N. C. 236 ; Stockton v. Wooley,

SMITH Y. HODSON. 1387

20 Ohio St. 184 ; Thompson v. Hoop, 6 Id. 480 ; Carder v. Fay-
ette Co., 16 Id. 353; Stilley v. Folger, 14 Ohio 610; see Re
Vowers, 45 Hun 418. If the gift is subject to conditions
and the donee elects to take, he must take with the burdens
attached; Scholey v. Reed, 23 Wall. 331. In the case of a
devise it was held that, as the widow and children occupied the
lands without exercising rights adversely to each other, infer-
ences could not be drawn which should operate as an estoppel
against parties subsequently setting up legal rights to the lands
thus occupied ; Fitts v. Cook, 5 Cush. 596, 601. For a case
where, " by accepting the position of executor, by giving bond,
and by continuing to occupy the real estate left by the de-
ceased," one was held to have " adopted, ratified, and confirmed
the will," and was thus " estopped from setting up any claim or
right which would defeat it," see Smith v. Wells, 134 Mass.
11, 13.

This subject is more fully treated under estoppel in the note
to Patterson v. Gandasequi, and the subject of mutual credits
will be found in the note to Rose v. Hart.

DOVASTON V. PAYNE.

35 G.2, C. P.

[REPOUTKI) 2 II KN. IM..

The property/ of a highway is in the oumer of the soil., subject to an
eaaement for the henejit of the public. Therefore., a plea in bar
of an avowry for takiny cattle Jamaye feasant, that the cattle
escaped from a public hiyhway info the l(»ciis in (|iit>, thronyh
the defect of f ■/ices, must show that they were passing on the
liiglivvay /chcn they escaped ; it is not sufficient to state that be-
iny in the hiyhivay they escaped.

Rki'LKVIN for taking the cattle of the plaintiff. Avowry that
the defendant was seised in fee of the locus in quo., and took the
cattle damage feasant. Plea, that the locus in quo "lay con-
tiguous and next adjoining to a certftin common and j)ublic
king's highway, and tliat the defendant, and all other owners,
tenants, and occupiers of the said i)lacc in which, &c., with the
appurtenances, for the time being, from time whereof the mem-
ory of man is not to the contrary, have repaired and amended,
and have been used and accustomed to repair and amend, and
of right ought to have repaired and amended, and the said de-
fendant still of right ought to repair and amend the hedges and
fences between the said place in which, &c., and the said high-
way, when and so often as need or occasion hath been or re-
quired, or shall or may be or require, to prevent cattle being in
the said highivay from erring and escaping thereout into the
said place in which, &c., through the defects and defaults of the
said hedges and fences, and doing damage there. And because
the said hedges and fences between the said place in which, &c.,
and the said highway, before and at the time when, &c., were

1388

DOVASTON V. PAYNE. 1389

ruinous, broken down, prostrated, and in great decay for want
of needful and necessary repairing and amending thereof, the
said cattle in the said declaration mentioned, just before the
said time wlien, &c., being in the said highway^ erred and escaped
thereout, into the said place in which, &c., through the defects
and defaults, &c., &c. To this plea there was a special de-
murrer, For that it is not sliown in or by the said plea, that the
said cattle, before the said time when, &c., when they escaped
out of the said highway into the said place in which, &c., ivere
passing through and along the said higJiwag^ nor that they had
any right to he there at all, &c.

In support of the demurrer, Williains, Serjt., argued as fol-
lows : It is a rule in pleading, that if the defendant admits the
fact complained of, he must show some good reason or justifica-
tion of it. If the cattle in this case had escaped from an ad-
joining close through the default of the plaintiff's fences, the
defendant must have shown that he had an interest in that
close, or a licence from the owner to put his cattle there. Dyer
365 a, Sir F. Leke's Case, recognised Hob. 104, Dighg v. Fitz-
herhert ; for a man is bound to repair against those who have
right, but not against those who have no right. So if cattle
escape from a highway, the party justifying a trespass must
show they were lawfully using the highway, that is, were pass-
ing and repassing on it, which is material and traversable. It
is not sufficient that they were simply in it, the heiiig there is
equivocal and not traversable. The owner of the soil may have
trespass, if the cattle do anything but merely pass and repass,
Bro. Abr. Tresp. pi. 321, and according to this principle, the
entries state, in pleas of this kind, that the cattle were super
viam prcedictam transeuntes, Thomp. Entr. 296, 297 ; and in
Heme's Plead. 822, that they were " driven along the highway .'''

Hejjivood, Serjt., contra. — The same strictness is not required
in a plea in bar to an avowry in replevin, as in a justification in
trespass. Here tlie plaintiff pleads the plea, and it is sufficient
for him to show that his cattle v/ere wrongfully taken. The
passing on the highway is as uncertain as the being there, and
as little traversable. But the material issues on the record
would be, whether the fences were out of repair, and whether
the defendant was bound to repair them. If he wei-e, it is im-
material whether the cattle were passing on the highway or not.
In a plea in bar, certainty to a common intent is sufficient. It

1390 DOVASTON V. I'AYNK.

miiy therefore be inteiuletl th;it the eiittk; were hiwl'iilly in tho
hinhwuy.

Jjord ('. J. Eijrc. — I a^^rce with my brother Williams as to
the general law that the party who woulil take a<lvantage of
fences being out of re[)air, as an exeiise for his eattle escaping
from a way into the land of another, must show that he was
lawfully using the easement when the cattle so eseaped. This
therefore reduces the case to a single })oint, namely. Whether it
does not appear on the plea, to a common intint, that the cattle
were on the highway using it in such a manner as the owner
had a right to do, from the worils " />iini/ in the miiil hiijhwai/^^ ?
This is a dilYcrcut case from cattle escaping from a close, where
it is necessary to sliow that the owner had a right to put them
there, because a highway being for the use of tiie p«d)lic, cattle
may be in the highway of comiiiioii light ; I doubt, therefore,
whether it reipiires a more [jartieular statement. It would ci-r-
tainly have been more formal, to have said that the cattle were
passing and repassing ; and if the evidence had proved that they
were grazing on the way, though the issue would have been
literally, it would not have been substantially, proved. But I
doubt whether the being in the highway might not have been
traversed; and if the being in the highway can be construed to
be certain to a common intent, the plea may be supported, not-
withstanding there is a special demurrer, for a special demurrer
does not meet a mere literal ex[)ression. The i)receiK'nls iiidccd
seem to make it necessary to state that the cattle were [)assing
and repassing, but they are but few ; yet upon the whole I
rather think the objection a good one, because those forms of
pleading are as cited by my brother Williams.

Buller, J. — This is so plain a case that it is ditlicult to make
it a ground of argument. But my brother Heywood says, there
is a difference between trespass and replevin in the rules of
pleading. In some cases there is certainly a material difference
in the pleading in the two actions, though in others they are
the same. One of the cases in which they differ is, th;;t if tres-
pass be brought for taking cattle which were distrained damage
feasant, it is sufficient for the defendant to say that he was pos-
sessed of the close, and the cattle were doing damage ; but in
replevin the avowant must deduce a title to the close. A\'her-
ever there is a difference, it is in favour of trespass and against
replevin : for in trespass an excuse in a plea is sufficient, but in

DO V ASTON V. PAYNE. 1391

an avowry a title must be shown, (a) This brings me to the
question, Whether the plea on this record be good to a common
intent? Now I think that the doctrine of certainty to a com-
mon intent will not support it. Certainty in pleading has been
stated by Lord Coke (b) to be of three sorts, viz., certainty to a
common intent, to a certain intent in general, and to a certain
intent in every particular. I remember to have heard Mr. Jus-
tice Ashton treat these distinctions as a jargon of words, with-
out meaning. They have, however, long been made, and ought
not altogether to be departed from. Concerning the last two
kinds of certainty, it is not necessary to say anything at pres-
ent. But it should be remembered, that the certain intent in
every particular applies only to the case of estoppels ((?). By a
common intent I understand that when words are used which
will hear a natural sense, and also aii artificial one, or one to be
made out by argument or inference, the natural sense shall pre-
vail : it is simply a rule of construction, and not of addition :
common intent cannot add to a sentence words which are
omitted. There is also another rule in pleading, which is, that
if the meaning of words be equivocal, they shall be taken most
strongl}" against the party pleading them. There can be no
doubt that the passing and repassing on the highway was
traversable : for the question. Whether the plaintiff was a tres-
passer or not? depends on the fact, whether he was passing
and repassing, and using the road as a highway, or whether his
cattle were in the road as trespassers ; and that which is the
gist of the defence must necessarily be traversable. A most
material point, therefore, is omitted, and I think the plea would
be bad on a general demurrer. But here there is a special de-
murrer, and as the words are equivocal they are informal.

Heath, J. — The law is, as my brother Williams stated, that
if cattle of one man escape into the land of another, it is no ex-
cuse that the fences were out of repair, if they were trespassers
in the place from whence they came. If it be a close, the owner
of cattle must show an interest or a right to put them there.
If it be a way, he must show that he was lawfully using the
way ; for the propertu is in the owner of the soil, subject to an

(a) See the note to ^/('^orv. Spate- (b) Co. Litt. 303.

man, 1 Wms. Saimd. 34G e, and to (c) Co. Litt. ibid.

J'oole V. Longueville, 2 Wms. Saiuid.
28-in.

1392 D()\ ASTON v. I'AYNE.

easement for the benefit of the public. On this plea it does not
appear whether tiie cattle were passin<r and repassing, oi-
whether they were trespassing on the highway ; the words used
are entirely equivocal (a).

Rooke, J., of the same opinion.

Judgfment for the defendant.

It is inteiuU'd to append to this case a few remarks upon the bniiich of
law, with reference to which it is usually cited; namely, the respective rii^iits
of the public, and of the owners of the soil, over a common highway. The
questions on which it is intended to touch are —
I. What is a hi<;hway.
11. llow it oriijinates.

III. How it may be lost.

IV. How it is to be kept in repair.

I. Ilit/fwriij. — What. — A hif/hicay is a passaj^je which is open to all the
king's subjects. Mr. Wellbeloved defines it to be a thoroughfare ; but there
are still doubts whether a highway must necessaj'ily have been originally a
thoroughfare ; and it seems, at all events, that if a highway were stf)pped at
one end, so as to cease to be a thoroughfare, it would in its altered state con-
tinue a highway; jtrr Patteson, J., Bex v: Marquis of Dnwiishire, 4 A. & E.
713. However, I have adopted the above dertnition as the safest; since,
whether or no a passage, to be open to all the king's subjects, need be a
thoroughfare, it is clear that every passage which is open de jure to all the
king's subjects, must be a highway. (There seems, however, to be no longer
any doubt that there may be a public highway over a place where no thor-
oughfare exists. Bateman v. Bluck [18 Q B. 870]. And see The Trustees of
the Rugby Charity v. Merryiceather, 11 East, 375 n. ISouch v. East London
liaihray Co., L. R. 1(! E(i. 108, 42 L. J. Ch. 477.])

It may be a footway, appropriated to the sole use of pedestrians ; a pack
and prime tvay, which is both a horse and foot way; or a cart icay, which
comprehends the other two, and also a cart or carriage way. Co. Lit. 56 a.
But to whichever of these classes it belong, it is still a highway : for " high-
way is the genus of all public ways, as well cart, horse, and foot ways." Per
Lord Holt, Regina v. Saintiff, 6 Mod. 255. See Logan v. Burton, 5 B. & C.
513; Allen v. Ormond, S East, 4; R. v. Inhabs. of Salop, 13 East, 95; Domina
Regina v. Ghiworth, Salk. 358. See, as to railroads, R. v. Severn and Wye
Railway Co., 2 B. & A. 64G.

Nay, (ixnn public rivers are, in law, to be considered highways, since they fall
■within the dertnition above given, and are passages open to all the king's sub-
jects, 1 Lord Kaym. 725; 2 Lord Raym. 1174; R. v. Hammond, 10 Mod. 382;
Com. Dig. Chimin. A. 1; Mayor of Lynn v. Turner, Cowp. 86; R. v. Lord
Grosrenor, 2 Stark. 511; yfayor of Colchester \. Brooke, 7 Q. B. 339; Dimes v.
Petley, 15 Q. B. 276. [There may be a highway along the top of a river em-
bankment, Greenwich Board of Works v. Mawdslay, L. R. 5 Q. B. 397, 39 L. J.
Q. B. 205.]

(a) [See per Cairns, L. C, Bangleyv. Midland Rail. Co.,'67 L. J. Ch. 313,316.]

, DOVASTON V. PAYKE. 1393

The interest of the public in a liigliway consisting solelj^ in the viglit of
passage, tlie soil and freehold oa-er which that right of way is exercised may
be, and generally is, vested in a private owner, who may maintain an action
against persons who infringe his riglits therein, as, for instance, by permit-
ting cattle to depasture there. See the principal case, and Sir John Lade v.
Shepherd, 2 Str. 1005; Stevens v. Whistler, 11 East, 51.

[The rule that the interest of the public in a highway consists solely in the
right of passage is well illustrated by a case in the Court of Queen's Bench,
in which this principle was applied in its full extent. In this case, R. v.
Pratt, 4 E. & B. 860, Pratt had been convicted by justices under the 1 & 2 Wm.
4, c. 32, s. 30, of committing a trespass, by being in the day-time on land in
the occupation of B. in search of game. On appeal a case was reserved b_v
the sessions for the opinion of the court, and the facts appeai'ed to be that
Pratt was in tlie day-time on a public road (the soil of wliich as well as the
land on both sides, belonged to B.) carrying a gun and accompanied by a dog;
that Pratt sent the dog into a cover by the road-side which was in the actual
occupation of B., and that a pheasant flew across the road from the cover and
was flred at by Pratt, who was still standing upon the road. Upon these
facts, the court held that the conviction was right, the road being laud in the
occupation of B., subject only to the right of way of the public, and the
evidence showed that Pratt w\as not on the road in the exercise of the right
of way, but for another purpose, namely, the search for game, and that thus
he was a trespasser. " On these facts," said Lord Campbell, C. J., " I think
that the magistrates were perfectly justified in concluding that Pratt was tres-
passing on land in the occupation of B. in search of game. He was beyond
all controversy on land, the soil and freehold of Avhich was in the ow^ner of
the adjoining land, that is B. It is true the public had a right of way there;
but subject to that right, the soil, and every right incident to the ownership
of the soil, was in B. The road, therefore, must be considered as B's land.
Then Pratt, being on that land, was undoubtedly a trespasser if he went
there, not in exercise of the right of way, but for the purpose of seeking
game, and that only. If he did go there for that purpose only, he com-
mitted the offence named in the act; he trespassed by being on the land in
pursuit of game. The evidence of his being tliere for that purpose is ample.
He Avaved his hand to the dog ; the dog entered the cover and drove out a
pheasant, and Pratt fired at it. The magistrates are fullj' justified in drawing
the conclusion that he went there, not as a passenger on the road, l)ut in
search of game."

And as the interest of the public is thus limited to the riglit of passage the
owner of the soil may continue to use it for his own purposes in any manner
not inconsistent with this right. St. Mary Ne^innriton v. Jacobs. L. R. 7 Q. B.
47, 41 L. J. M. C. 72.

As to the right of a Railway Company to tunnel under a higliway, see
Souch V. East London Ixailway Co., L. R. 16 Eq. 108, 42 L. J. Ch. 477. It is
not easy to see why tlie owner of the soil beneath a public highway should be
bound to allow a Railway Company to tunnel through it without paying him
compensation, though in the above case, Malins, V. C, states it to be his
opinion that the Railway Company clearly has a right to do so. In a subse-
quent proceeding in the same case, reported 22 W. II. 566, Bacon, V. C., said
that he could not read the acts of Parliament as giving poAvers beyond that
wliich Avas necessary for the maintenance of the street or passage : all beyond
that belonged to tlie OAvners of the property, and he directed an account to

lo94 DOVASTON V. PAYNE.

be taken of the compensation to l)e paid hy tlie companj'. Comparfi Goodson
V. lUrhardsdn, L. li. 9 Cli. 221, vvliere tlic Lords Justices ijranted an injunc-
tion to restrain tlie contiiniancc of water-pipes, wiiicli liad, witliout tl»e con-
sent of tlie owner of tlie soil, been laid in the soil of a liiicluvay.]

The genei'al priniil farin presumption of law is, that the freehold of the
road, Jtsqtie ad medium filum vice, is in the proprietors of the land on either
side, C()of>-e v. Gi'een, 11 Price, 7I3G; Hi'dlam v. Ilendlry, Holt, 4G3; see, how-
ever, the exception stated by Lord Denman, C. J., A*, v. Ilatjield, 4 A. & E.
1G4, and per Lord Tenterden, C J., in A', v. Edmonton, 1 M. & Rob. 24.

This presumption applies as well to private as to public roads. " This pre-
sumption," said Cockburn, C. J., in the modern case of //o/m^.s v. lii'Uinijhnm,
7 C. H. N. S. 82!), " is allowed to prevail upon i^rounds of public convenience,
and to prevent tlisputes as to the precise boundaries of property ; and it is
based upon this supposition, — wiiich may l)e more or less founded in fact,
but which at all events has been adopted, — that when the road was orijjinally
formed, the proprietors on either side each contriliuted a portion of his land
for that purpose. I think that is an equally convenient and reasonable prin-
ciple, whether applied to a public or to a private road, but in the latter case
it must of course l)e taken with this <iualillcati(»n, that the user of it has been
qua road, and not in the e.xercise of a claim of ownership."

[It may, however, be rebutted, see Beckett v. Corporation of Leeds, L. R. 7
Ch. 421, wliere James, L. J., says : " I should myself, if it were necessary to
determine it, he very slow to come to the conclusion that where there is a
road K"'"" through an estate, and a site is jj^ranted by t!ie roadside for the
erection of a cotta2:c or house, and a cottajre or house is built upon that site,
the mere conveyance, or srant, or demise of a piece of land as a site of and
for the purpose of buildinj; a house is, in presumption of law, a grant to the
middle of the high-road, the frontage of which is proljably the origin of the
house being bnilt on that space." See also the Marquens of Salishuri/ v. The
Great Northern Hail. Co., 5 C. B. N. S. 174, as to what provisions in local
turnpike acts are sufficient to rebut this presumption. The presumption of a
grant usque ad medium Jilum via-, does not exist where the parcel conveyed is
described as bounded by an intended highway which has never in fact l)een
dedicated, Leif/h v. Jacl-, 5 Ex. D. 2G4. And see Landrock v. Metropolitan
District Rail. Co., W. N. 1886, 195.]

So likewise the waste land on each side of the road [is presumed to belong
to the adjoining owners], Steele v. Prickett, 2 Stark. 4(53; Doe v. Pearsey, 7
B. & C. 304, [Tutel v. Local Board of Health for West Ham, L. R. 8 C. P.
447] ; unless, indeed, it communicate with other larger wastes belonging to
the lord of the manor, Anon. Loff't. 358; Grose v. West, 7 Taunt. 39; Doe d.
Barrett v. Kemp, 7 Bing. 332 [and see Gej'ij v. Bedman, 1 Q. B. D. IGl.

The effect of the Public Health Act, 1875, ss. 4 and 149, is to vest the soil
of a highway which constitutes a " street" Avithin the Act in the local board,
who may therefore make a valid lease of the pasturage of the strips of grass
forming the sides of the highwaj% Corerdale x. Charlton, 4 Q. B. D. 104, C.
A. This interest in the soil, however, ceases on the extinction of the high-
way. Rolls V. St. George the Martyr, Southwark, 14 Ch. D. 785, C. A., and docs
not extend to a proprietary right in the air usque ad ccelum, so as to entitle
the local authorit}^ to an injunction restraining the suspension of a telephone
wire across the " sti'eet," no nuisance or appreciable danger to the user of
the street being shown to be caused thereby, Wandsworth Board of Works v.

DOVASTON V. PAYNE. 1395

United Telephone Co., C. A., 13 Q. B. D. 004; r>?, L. J. Q. B. 449; a case de-
cided under s. 96 of the Metropolis Manaiiciueiit Act, 1855.]

Nay, not only may the soil over which the hiijliway passes be vested in an
individual, but it may be subject to a private right of way co-existent with
the public one, Brownlow v. Tomlinson, 1 M. & Gr. 484. Or to a custom of
partial interruption for a limited time by the erection of booths during a
fair, Ehmod v. Btdlock, G Q. B. 383. The right of the public, however, is
that which is of chief importance, and is principally to be taken care of.

And therefore if a highway become so out of repair and founderous, as to
be impassable, or even incommodious, the public have a right to go on the
adjacent ground, whether it be cultivated or uncultivated, 1 Roll's Abr. 390
A. pi. 1, B. pi. 1 ; 1 Hawk. P. C. 76, s. 2; Ahsor v. French, 2 Show\ 29, pi. 19;
rayJor v. Whitehead, Dougl. 749, [2 Wms. Saund. 161 n. (12)] ; a privilege
which the grantee of a private way can under no circumstances assume.
Pomfret v. Bicroft, 1 Wms. Saund. 322 a, n. 3; Taylor v. Whitehead, nhi supra;
Bnllard v, Harrison, 4 M. & S. 387.

[Even as to the case of a public way doubts are expressed in Arnold v.
Holbroolc, L. R. 8 Q. B. 96, 42 L. J. Q. B. 83, where it was held that the de-
fendant had no right to deviate from a public footpath Avhich had been
ploughed up, the dedication being limited by the right of the owner so to
plough it up. See also the remarks on this subject in Spearman on High-
ways, p. 47.

There is, however, an obvious distinction between allowing a private way
to become founderous and actually obstructing it, and it has been held by the
Lords Justices, that if A. grants a right of way to B. over his field, and then
places across the waj' an obstruction not allowing of easy removal, the
grantee may go round to connect the two parts of his way on each side of
the obstacle over the grantor's land without trespass, pter Lord Selborne, C,
Selby V. Nettle/old, L. R. 9 Ch. Ill, 43 L. J. Ch. 357.

Whether this right of going on the adjacent land exists in cases in which
the highway is obstructed by a wrong-doer was considered in Daices v. Haio-
kins, 8 C. B. N. S. 848. Mr. Justice Williams observed that it is remarkable
that in the text-books this right is confined to cases in which the highway is
founderous and out of repair; and that on principle it may be doubted
whether the burthen to which the adjacent soil is subjected when the parish
has been guilty of a non-feasance in neglecting to keep the highway in re-
pair, ought to be likewise inflicted because some wrong-doer has put an ob-
struction on the highway, which may be abated as a nuisance by any one who
has occasion to use the road; at all events, unless the obstruction be of such
a nature that practically it cannot be abated, and so the road is in effect im-
passable. The Lord Chief Justice Earle said, however, that he knew of no
decision and no principle making a distinction between a, I'oad impassable by
non-feasance, that is, neglect of repair, and a road impassable by mis-
feasance, that is, by ditch and bank wilfully made; and Mi*. Justice
Williams added, that in Ahsor v. French, supra, which is very shortly and
obscurely reported in 2 Show. 29, it seems to liave been held a good plea to
an action of trespass that the plaintiff himself had stopped a highway so as
the defendant could not pass, and therefore he went over the plaintiff's close,
doing as little harm as he could. See as to this, Selby v. Nettleford, nbi supra-l

II. As to the mode in vhich a highway is created. — Except where this is
done by the express enactment of tlie Legislature, it derives its existence
from a dedication to the public by the owner of the land over which the

1890 DOVASTON V. PAVNE.

highway extends, of .a riirht of passasrc over it; and tins dedication, though
it he not made in express terms, as it indeed sehloni is, may and will l)e pre-
sumed from an unhiterrupted use l)y tlie jjublle of the riglit of way claimed,
li. V. Lloyd, 1 Camp. 2(;o. See Britiuli Museum v. Finnis, 5 C. & V. 4G0; and
the Grand Surrcij Cannl Co. v. Hall, 1 M. & Gr. :}!)3. [An open user as i)f
riglit i)y the pul)lie raises a presumptive inference of tU'dication requiring to
lie rebutted; and wlien sucli user is proved, tiie onus lies on the person who
seelis to deny the inference resulting from it to show negatively that the
state of the title was such that no one couhl make a valid dedication, li. v.
Petrie, 4 E. & B. 737.]

" No particular time is neces.sary for evidence of a dedication. If tlie act
of dedication be unequivocal, it may take place immediately. For instance,
if a man build a double row of houses opening into an ancient street at each
end, making a street, and sells or lets the houses, that is instantly a high-
way." ]\r Chambre, J., in Wnodycr v. Ilnddrn, .") Taunt. Vi:>.

Eight, and even six years, have been held time enough wherein to presume
a dedication fnm) user, Tritstets of liughy Charity v. Mcrryirrathcr, 11 East,
37G. Four years have been held too short a time. But all de|)ends upon the
special circumstances of each case, as will be understood from the remarks
of Chambre, J., above cited, /?. v. Hudson, 2 Str. 90!); A', v. \Vri<jht, 3 B. &
Ad. G81 ; and the duration of the public user, which limits the rights of the
owner of the soil, is not so important in this respect as tlie nature of the
acts done by the owner o( the soil, and of the adverse acts acquiesced in by
him, as well as the intention indicated by those acts. See liey. v. Chnrlcy, 12
Q. B. .515; [Xorth London Raihray Co. v. ,SV. Mary Isliinjton, 21 W. H. 22G, 27
L. T. N. S. G72.

In the case of Dawes v. Hniokins, 8 C. B. N. S. H4H, already cited, a length-
ened user by the public of a line of road sul)siitutcd for an ancient highway
which continued for the same period wrongfully obstructed, was considered
by the court to be referable to the right of the public to deviate on the ad-
joining land wlien the owner of the soil illegally stops up the highway, or
sutlers it to become founderous, and therefore not to aftbrd evidence of the
dedication to the pui)lic of the substituted way. From this view, however,
Mr. Justice V>'illiams dissented, being of opinion that, as the owner of the
soil over which the public had passed had for many years submitted to this
burtlicn, instead of causing the obstruction on the ancient highway to be re-
moved, this atl'onled some evidence of an intention to dedicate the substituted
highway to the public]

A dedication cannot be presumed against the crown, Harper v. Charles-
worth, 4 B. & C. 574. This, however, must be taken with some qualification.
See Reg. v. East Mark, 11 Q. B. 877.

As a dedication to the public will be presumed where circumstances warrant
it, so that presumption may be rebutted, and prevented from arising, by
circumstances incompatible with the supposition that any dedication has
taken place. Tluis, tliough we have seen that if a man open a useful passage
from one pul)lic highway or street into another, a presumption will, in course
of time, arise, tliat he has dedicated that passage to the puljlic; yet if he
place a bar or gate across the road, which may be opened and shut at pleasure,
the presumption of dedication is rebutted. Nay, though tlie bar or gate liave
been knocked down, the fact of its having once been there will, at least for a
considerable time, prevent tlie presumption of a dedication from arising,
Roberts v. Karr, 1 Camp. 262, note; Lethbrid'je v. Winter, 1 Camp. 263. See

DOVASTOX V. PAYNE. 1397

British Mnseum v. Finnis, 5 C. & P. 460. So too it may be proved that the
■user took place undei- an agreement, BarrarJnucih v. Johnson, 8 A. «& E. 104.
See Grand Surreij Canal Co. v. Hall, 1 M. & Gr. 393; and Fcrrand v. MlUigan,
7 Q. B. 730. [Healey v. Battey, L. R. 19 Eq. 375 ; in a case in which it appeared
that a road had been originally made by turnpike trustees under a temporary
and expired act, and formed a portion only of the line of road which they had
been authorised to make, but that it had been repaired by the parish, both
before and after the expiration of the temporary act, the court held that
there was evidence of a dedication and of an adoption by the public, and that
the circumstances under which the road was made might explain away such
evidence, but did not, as a matter of law, conclusively rebut it, R. v. Thomas,
7 E. & B. 399.]

A dedication to the public may be limited in point of time by acts contem-
poraneous with the dedication, R. v. Hudson, 2 Str. 909 ; R. v. Northampton,
2 M. & S. 262. See R. v. Mellor, 1 B. & Ad. 32. [That is to say, a highway
may be useable by the public at certain times only; as in R. v. Northampton,
where a pviblic bridge was used by the public at all times when it was dan-
gerous to pass through the river. But a dedication once made cannot, it is
said, be limited in duration. " If a Avay is dedicated at all, it must be dedi-
cated in perpetuity." See the judgment of Byles, J., in Dawes v. Hawkins.']

But whether a dedication can be partial in its extent, is a question of some
doubt and difficulty. See it discussed by Mr. Wellbeloved, on Highways,
p. 52, et seq. See also Marquis of Stafford v. Coyney, 7 B. & C. 257 ; Rex v.
Leake, 2 N. & M. 595 ; 5 B. & Ad. 469 ; Lethbridge v. Winter, 1 Camp. 263.

[A highway may, however, be dedicated to the public, subject to a pre-
existing right of user by the OAvners of the adjoining lands for the purpose
of depositing goods on it; so, it may be dedicated with an obstruction on it,
or excavation in it, or near it, which is a hindrance, and dangerous to passen-
gers, and which if placed or made on or near the highway after its dedication
Avould have been a nuisance : and no action will lie against the person dedi-
cating in respect of any injurj' caused thereby. See Le Neve v. Mile End Old
Tovm, 8 E. & B. 1054; the judgment in Morant v. Chamberlin, 6 H. & N. 541 ;
the judgment in Fisher v. Prowse, 2 B. & S. 770; and Robhins v. Jones, 15
C. B. N. S. 221.

So there may be a dedication of a footway to the public, subject to the
reservation by the owner of the right to plough it up periodically, which limit
to the dedication may be proved by user, Mercer v. Woodgate, L. K. 5 Q. B. 26,

39 L. J. M. C. 21, followed in Cam. Scacc, Arnold v. Blaker, L. R. 6 Q. B. 433,

40 L. J. Q. B. 185.

The law on this subject is laid down by Blackburn, J., in the masterly
judgment of the Court of Queen's Bench in Fisher v. Proivse, in the following
terms, adopted by the Common Pleas in Bobbins v. Jones. "The law is clear
that if, after a highway exists, anything be newly made so near to it as to
be dangerous to those using the highway — such, for instance, as an excava-
tion {Barnes v. Ward, 9 C. B. 392), this Avill be unlawful and a nuisance: as
it also is if an ancient erection, as a house, is suftered to become ruinous,
so as to be dangerous (Reg. v. Watts, 1 Salk. 357) ; and those who make or
maintain the nuisance in either case are liable for any damage sustained
thereby, just as much as if the nuisance arose from an obstruction in the
highway itself ; but the question still remains whether an erection or excava-
tion already existing and not otherwise unlawful, becomes unlawful when
the land on which it exists, or to which it is inunediately contiguous, is dedi-

1398 IKfVASTON V. rAVNE.

cated to the public as a way, if tlie erection prevents the way from l)c'iiig so
convenient and safe as it otlierwise wonld be; or wlietlier, on tlie contrary,
tlie (ifdication must not be talieii to be nuuie to tlie public, and aefei)tcd by
them, subject to tiie inconvenience or rislv a'risinj; from tlie oxisliiij; state of
thinsjs. We tliini< the latter is tlie correct view of tlie law. It is, of course,
not obligatory on the owner of land to dedicate tlie use of it as a iiii;iiway to
the public. It is ecjually clear tliat it is not compulsory on tlie pui)lic to
accept tlie use of a way wlien ort'ered to tiicin. If tlie use of tlie soil as a way
is ottered l)y the owner to the public untler given conditions and subj<»ct to
certain reservations, and the public accept the use under such circumstances,
there can l)e no injustice in holdinu: them to the terms on whicli tlic benefit
was conferred.

"()n the otlier liaiid, great injustice and liardsliip would often arise if,
when a public riglit of way lias l)een aci|uiii'il under a given state of circum-
stances tl<e owner of tlie soil slioiild be Iield bound to alter tliat state of
circumstances to liis own disadvantagi' and loss, and to make further conces-
sions to tile pulilic altogetlier beyond the scope of liis original intention.
More especially would this be the case when public rights have been acipiired
by mere user. For instance, the owner of the bank of a canal or sewer may,
without considering the eftect of what he is doing, permit passengers to pass
along until the public have acquired a right of way there. It is often hard
upon him that the public right should have been thus ac(|uircd: it would be
doubly so if the conse(iuence were that he was bound to till up or fence off
his canal."]

It was decided in the case of Poole v. I/i(skiiis(i)i, II .M. & W. SUT, that
there cannot be a dedication to n Umitnl portion of tfip puhlir. Such a dedica-
tion is merely void, and does not operate as a dedication to the whole public.
It seems clear, however, from the case of Poynton v. Wilson, 2 Lutw. 1507
(not cited in Poole v. Huskinson) , and Co. Litt. 4 a, that such a right may be
created by custom. [And it would seem that an owner cannot without legis-
lative authority dedicate, reserving to himself a right to take toll for the
user, Avsterl>err>i v. Corporation of Oldham, 29 Ch. 1). 7.')().]

It must also be observed that the dedication of the owner of a particular
estate will not bind those in remainder, or prevent them from stopping the
Avay dedicated, when the estate comes into their possession, Wood v. Veal, 5
B. & A. 4.")4. See Baxter v. Taylor, 1 N. & M. 13; li. v. lulmontnn, 1 M. &
Rob. 24. Unless, indeed, in the course of the period during which the
way has been used, there have been a succession of tenants, or the landlord
has had express notice of the user, in which cases his assent to it might be
implied, B. v. Barr, 4 Camp. 16. A body corporate may dedicate, drand
Surrey Canal Co. v. HaU, 1 M. & Gr. 393.

The assent of the parisli through which the highway runs is not [at com-
mon law] requisite to give eflect to the dedication thereof [as regards
repairs], R. v. Leake, 5 B. & Ad. 469; though the contrary of this proposi-
tion was once contended for, R. v. St. Benedict, 4 B. & A. 447; R. v. Mellor,
1 B. & Ad. 32; R. v. Cumbenrorth, 3 B. & Ad. 108; R. v. Wrifiht, 3 B. & Ad.
683. See now, however, on this subject, 5 & 6 W. 4, c. 50, s. 23, [as to roads
dedicated since the passing of that act] cited post.

[It should further be observed that apart from the question of liability to
repair, it is necessary for the public to assent (of which user would be
evidence), in order that a way may become public See the judgment of

DOY ASTON V. PAYNE. 1399

Blackburn, J., in Fishpr v. Prou-se, ubi sup., and of Brett, J., in Cuhitt v.
Maxsp, L. R. 8 C. P. 704.]

It lias been already remarked, that a highway is sometimes created bj' an
act of parliament passed for that pnrpose. The provisions of snch an act
must be strictly followed, or the creation will not take place. See R. v. Has-
liiirf field, 2 M. & S. 558. Where an act of parliament directed a road from A.
to B., it was held that the whole line must be complete, before any portion of
it would become a highway repairable by the parish, R. v. Cumbericortk, 3
B. & Ad. 108, and 4 A. & E. 731 ; R. v. Edge Lane, 4 A. & E. 723. [But this
proposition was held by the Court of Appeal to be no longer law% Rerj. v.
French, 4 Q. B. D. 507, 48 L. J. M. C. 175.] Where a road has been made by
trustees under a local and temporary act, and there had been an user of it for
a considerable time b_v the public, it was held that the parish was liable to
repair it so long as the statute authorising its construction was kept in force
by temporary continuation acts, and that the road was properly described in
the indictment as a common Queen's liighway. See Reg. v. Lordsmere, 15
Q. B. 089, and R. v. Mellor, sup7'a. [Where an inclosure award and map made
in 1808 set out a strip of land as a highway, and it was accordingly set out
properly by metes and bounds on the land and fenced, but was never com-
pletely formed, and was never used by the public, it was held that it never
became a highway, Cithitt v. Maxse, L. R. 8 C. P. 704, 42 L. J. C. P. 278.]

m. As to the mode in which a highway may be lost. — The common law pre-
sents no means by which a public right of way can be lost absolutely, Fowler
V. Sanders, Cro. Jac. 44(5. It might, however, be diverted from one line of
road into another ; and that either by the act of God — as if a navigable river
change its course, see Reg. v. Bamber, 5 Q. B. 279; Reg. v. Paul, 2 JM. & Rob.
307, coram Maule, J.; or by proceedings on a writ entitled that of ad quod
damnum, which is an original writ issuing out of Chancery, and directing the
sheriff to summon a jury to inquire whether the proposed diversion will be
detrimental to the public, and to return the inquisition into Chancery, where
any person injured thereby might have impeached it. "It is an established
maxim, — once a highway always a highway; for the public cannot release
their rights, and there is no extinctive presumption or prescription. The
only methods of legally stopping a higliway, are either by the old writ of nd
quod damnum, or by proceedings before magistrates under the statute." See
the judgment of Byles, J., in Dawes v. Hawkins, 8 C. B. N. S. 858; [and see
Turner v. Ringwood Highway Board, L. R. 9 Eq. 418. In the last case. Sir
William (then V. C.) James refused to grant an injunction on behalf of the
alleged owner of the soil of a road against the Highway Board felling trees
which had grown up so as to be an obstruction, but on the side of the road
where thei-e was no via trita, and see Wilkins v. Day, 12 Q. B. D. 110. Where
the ways giving access to a footway have by oi'der of quarter sessions been
stopped up at both ends of it, the footway is lost, Bailey v. Jamieson, 1 C.
P. D. 329.]

A public liighway may, of course, be either extinguished or diverted by act
of parliament; and statute 5 & 6 W. 4, c. 50, contains, from section 84 to 92,
copious directions as to the mode in which it maj"^ be stopped up or diverted
by two justices. Those sections enact, that whencA-er the inhabitants, in
vestry assembled, deem it expedient that a highway should be stopped,
diverted, or turned, either entirely, or reserving a footway or bi'idle-way,
the chairman shall, in writing, direct the surveyor to apply to two justices
to view it and authorise him to pay the expenses of the view. Any inhabi-

1400 DOV^ASTON V. I'AVNK.

tant [Jirg. v. Mnulr, 41 I>. J. M C. 47, 23 L. T. N. S. 850] may call upon the
cluin-liwardcns to assfiiihle a vestry for this purpose. If it appears to the
two justifos. u|)on tlieir view [wliidi must l)e personal, Ji. v. Wdllucf, 4
Q. B. 1). 041], that the hif^hway may beiu-llcially be sto|)ped, diverted, or
turned, anil the owner of the land throuijh whicli the iwic hiijluniij, [see livy.
V. Phillips. L. R. 1 ti. B. 048, in wliieli case Wilrh v. \asfi, 8 East. :V.>4, was
dissented from,] is intended to be made, consent in writing, notices are to be
atlixed at tlie place and l)y tiie siile of eacli end of the roail. [see /ie;;. v. ././.
of Surreij, L. U. 5 Q. B. 4(;(;] published for four weeks runninjj; in a county
newspaper, and for four successive Sundays on the door of the church of
each parish through whicli the hijjhway runs; and wlien proof has been
made, to the satisfaction of the justices, of the i)ul)lication of such notices
[the publication of which is therefore a condition preceilent to the justices
jurisdiction, Rkj. v. .htstiris of Sitrrcij, L. K. "> t^. H. 4G<j, ;{!> L. J. M. C. 4'J],
and a plan lias been laid before them of the old and the proposed new hijjh-
Avays, the justices are to make their certilleate. which is to be lod<;etl with
the clerk of the peace, anil at the quarter sessions next after four weeks
from the day of its beinjr so lodjjed, is to be read in open court, and enrolled,
together with the proof, plan, and consent, among the records of the quarter
sessions. The stoppage or diversion of several highways connected with
each other, may be etlected by the same order and certilleate.

Parties aggrieved by such certificate may appeal to the said (piarter ses-
sions, giving ten [increased l)y 12 i<: i:{ \'ict. c. 4.">. s. 1. to fourteen (see Iteg.
V. Miniie, 41 L. J. M. C. 47)J days' notice, and a statement of the grounds of
appeal. The court of quarter sessions is to empanel a jury to try this
appeal, to decide it according to the verdict, and to award costs to the suc-
cessful party. If there be no appeal, or the appeal be dismissed, the quarter
sessions are to make an order for the diversion or stopping the old highway,
and purchasing tlie ground for the new one. which henceforth is to be a
public highway.

[As to the notice of the vestry meeting, see R>'(/. v. Ptncoll, L. II. 8 Q. B.
403. The certificate of the justices for tlie diversion of a highway under
sect. 85 may be granted if the new highway is either " nearer or more com-
modious" than the old one; see Rcy. v. Phillips, L. U. 1 Q. B. <548, in which
case an earlier and opposite decision of the Queen's Bench (Jir(/. v. Shiles,
1 Q. B. 91D) was dissented from. It is sutlicicnt if the certificate state the
existence of the circumstances required by the section, Reg. v. Harvey, L. R.
10 Q. B. 46. (See Public Health Act, 1875, 38 & 39 Vict. c. 55, s. 144, as to
the substitution of the Urban Sanitary Authority for the Surveyors and Ves-
ti'ies in 5 & C Wm. 4, c. 50; and 41 & 42 Vict. c. 77, ss. 4 and 5, as to the sub-
stitution of the rural Sanitary Authority for Surveyors and Highway Boards.)

The 5 & 6 W. 4, c. 50, has been amended and extended by the 25 & 2(1 Vict,
c. 61 ; and by sect. 44 of this latter act, which provides for the appointment
of Highway Boards, all the provisions of the earlier act for widening,
diverting, and stopping-up higlnvays are made applicable to highways paved,
repaired, or cleansed under any local or personal act, except highways, which
any railway company, or the owners, &c., of any canal, river, or inland navi-
gation, are liable to repair or cleanse under any act of parliament.

The Highway Act, 1864 (the 27 & 28 Vict. c. 101), and the 41 & 42 Vict. c.
77, also contain provisions, altering and amending the 5 & 6 W. 4, c. 50. It
is not necessary to refer to these enactments at length. By sect. 21, how-
ever, of the former Act, it is provided that when any highway board con-

DOVASTON V. PxVYNE. 1401

siders any highway to be unnecessary for public use, they may direct the
district surveyor to apply to two justices to vieAV it, and thereupon the like
proceedings (including the appeal to quarter sessions, Rpai. v. Justices of Sur-
rey, L. R. 5 Q. B. 87 ; Sd L. J. M. C. 145) may be taken as where an application
is made to stop up a highway under the 5 & G W. 4, c. 50, except that the
order to be made thereon, instead of directing the highway to be stopped up,
must direct that it shall cease to be a highway which the parish is liable to
repair, and the liability of the parish sliall cease accordingly. The same sec-
tion contains a provision enabling the court of quarter sessions to direct that
the liability of the parish to repair shall revive, if it appears at any time
thereafter, on the application of any person interested in the maintenance of
the highway, that fro7n any change of circumstances since the making of the
order which freed the parish from liability, tlie highway in question has
become of public use, and ought to be kept in repair by the parish, 41 & 42
Vict. c. 77, s. 24.

The Highways and Locomotives (Amendment) Act, 1878, 41 & 42 Vict,
c. 77, contains in sect. 24 analogous provisions wherebj', at the instance of
any authority liable to keep any highway In repair, the Court of Summary
Jurisdiction of the Petty Sessional Division may, after similar formalities,
declare such highway unnecessai'y for public use, and that it ought not to be
repaired at the public expense. There is also a like provision enabling the
quarter sessions to direct that the liability of such highway to be repaired at
the public expense shall revive.]

Besides the -above enactments the Turnpike Acts contain provisions ajipli-
cable to that class of Avays only.

IV. As to the mode in which a hiyhioay is to he repaired. — At common law,
the liability to repair all highways within a parish rests on the occupiers of
the land thei-ein, 1 RoUe's Abr. 390 ; Austin's Case, 1 Vent. 183, i) ; R. y. St.
George, Hanover Square, 3 Camp. 222; R. v. Netherthong, 2 B. & A. 179;
IGuhitt V. Maxse, L. R. 8 C. P. 704; 42 L. J. C. P. 278 ; Reg. v. Bradfield, L. R.
9 Q. B. 552, where it was held that there was nothing in the fact of a road
having been originally in 1789 set out in an inclosure award making it repair-
able by the adjoining landowners, to prevent it from becoming by dedication
implied from user, a highway repairable by the inhabitants at large ; and R.
V. St. Benedict, 4 B. & A. 447, apparently to the contrary, is discussed.]

5 & G W. 4, c. 50. s. 27, I'egulates the mode in whicli a rate is to be made for
that purpose, upon all property liable to be rated to the I'elief of the poor,
and "such woods, mines, and quarries of stone or other hereditaments as
have heretofore been usually rated to the highways," — that is to say, such
woods, &c., as have been usually rated to the highways in the particular parish
where the rate is made. Therefore, timber-woods, which had not for a num-
ber of years, before and up to the passing of tlie act, been I'ated to the high-
ways in the parish in which they were situate, were held not to be rateable
after the passing of the act, although similar woods had always been rated
in the neighbouring parislics and country generally, R. v. Rose, G Q. B. 153.
So that property may be rateable in one parish, to the repair of the highways,
whilst the same description of property is not so rateable in another. Where
a place happened to be extra-parochial, it seemed doubtful how the repair
was to be enforced, R. v. Kingsmoor, 2 B. & C. 190; and see Reg. v. Midiille,
4 Q. B. 240. [The 45 & 46 Vict. c. 27, extends certain provisions of the Poor
Rate Assessment Act, 1869, to the Highway Kate ]

The liability of the parishioners may indeed be suspeniled, and the burden

1402 DOVASTON V. pavnp:.

imposed on other persons, under certain circumstances. But then, if those
persons l)ecome in any way unable, or cease to bo compellable, to perform
the duty of reparation, tjje dormant liability of the parisiiionors revives,

Vounn V. , 1 Lord Kaym. 725; A', v. Sh^fflehl, 2 T. K. IOC; R v. Ox/onl-

shire, 4 B. & C. IIU ; AV;/. v. LnnUmere, 15 Q. II. G8'J.

Nor can tlic i»arish, l)y any airreement whatever, exonerate Itself from this
inherent lial)ility, U. v. Mmjor of Lii'in-pin,!, .S East, 80.

By 4 & 5 Vict. c. H'.) [amended by 34 & 35 Vict. c. 115, s. 15 and] continued
by several acts, the last of which is [the 41 & 42 Vict. c. <!2], justices at spe-
cial sessions, on proof of the deficiency of the funds of any turnpike trust,
may order a portion of the hij^lnvay rate to be paid to the trustees, for the
repair of such portion of the turnpike road as lies within the i)arish in wliicii
the rate is made; and the justices have power to make such an <)r(k^r,
altiiouijh tiie dellciency in the trust-fund has been occasioned by payment of
interest upon a pre-existin<r debt. Sec A', v. M'hi/t, 4 Q. B. 101. [W'rdnhill
Hiijhxrtui Board v. Ihtinbridiji', L. R. 1 Q. B. \VM\, wliere R. v. White was dis-
tiny;uislied. See also Market Ifarhoron/jh Trustees v. lutterimj //ii/hiraij
Board, L. H. 8 Q. B. 308; 42 L. J. M. C. i:)7 ; and /d. v. .\farket Ilarhunnu/h
lliilhwaij Board, L. K. 8 g. B. 327 ; 42 L. J. M. C. 139. By 33 & 34 Vict. c. 73,
s. 10, the cost of maintainini; hiijliways which cea.se to be turnpike roads is
made a charj^e on the common fund of tlie hi;;hway district thron^li which it
passes. 35 & 3() Vict. c. 85, contains provisions (ss. 14, 15) for highway
boards taking; u|)on themselves tlie repairs of turnpike roads, antl like provis-
ion is made by the Public Health Act, 1875, 38 & 3'J Vict. c. 55, s. 14H, with
respect to urban authorities created under that Act.

By 41 & 42 Vict. c. 77, s. 13, the Ilijjhways and Locomotives (Amendment)
Act, 1878, roads which since the last day of l)eceml)er, 1870. have ceased to
be turnpike roads or will cease to be turnpike roads after the passinir of the
Act are to be deemed main roads, and half the expense of their maintenance
Is to be contrilmted out of the county rate on the certificate of the surveyor
that such road has been maintained to his satisfaction. See on the construc-
tion of this section: — Mai/nr of Ocer Dariren v. Justices of Lancashire, 15
Q. B. 1). 20; 54 L. J. M. C. 51 ; Guardians if Amesf>ur>j v. Justices of Wilts,
10 Q. B. D. 480; 52 L. J. M. C. (54; Justices if Lancashire v. Corporation if
liochdale, 8 App. Cas. 494; 53 L. .1. ^L C. 5; Justices of West Ridimj v. The
Queen, 8 App. Cas. 781; 53 L. J. M. C 41 ; Justices if Lancashire v. Xeinton
Improvement Commissioners, 11 App. Cas. 4ir).

It is further provided by sect. 15 that under certain conditions the county
authority shall declare certain ordinary highways to be main roads, and ])y
sect. 16 the same authority may apply to the Local Government Board to
declare that certain roads which by sect. 13 are constituted main roads ought
not to become, or should cease to be such.

By sect. 7 of the same statute all expenses incurred ))y any highwiiy board
in keeping in repair the highways of each parish within their district shall be
deemed to have been incurred for the benefit of the several parishes within
the district, and sliall be charged on the district fund. But if the highwaj-
board think it just that by reason of any exceptional circumstances any par-
ish or parishes should bear the expense of maintaining their own highways,
they may divide their district into parts, and charge exclusively on each of
such pai'ts (which must consist of more than one highway parish), the
expenses payable by such higliway board in respect of maintaining and keep-
ing in repair the highways situate in each such part.]

DOVASTON V. PAYNE. 1403

The common law liability to repair all the highways situate within it, under
which every parish lay, has been a good deal narrowed by statute 5 & 6 W. 4,
c. 50, so far as respects roads constructed by private individuals, after the
passing of that act.

The 23rd section, which is not retrospective, B. v. Westmark, 2 M. & R. 305,
enacts that no road made by a private person or corporation, or set out as a
private drift-way or horse-path by the award of inclosure commissioners,
shall be deemed a highway repairable by the parish, unless three months'
notice be given to the surveyor of the intention to dedicate, and unless it be
substantially made, to his satisfaction, and that of two justices, who are to
view and certify, and their certificate is to be enrolled at the next sessions.
The surveyor, on receipt of the notice, is to call a vestry, and if they deem
the new road not of sufficient utility, the question is to be determined by the
next special sessions for the highways.

Hence it appeal's that the sort of dedication which shall suffice to entitle
the public to a road, will, for the future, be different from that which must
take place in order to burden the parish Avith the duty of repairing it. See
li. V. Leake, 5 B. & Ad. 469; R. v. \Vru/ht, 3 B. & Ad. 683; li. v. Mellor, 1
B. & Ad. 32; Grand Surrey Canal Co. v. Hall, 1 M. & G. 393; and accordingly
in Boberts v. Hunt, 15 Q. B. 17, it was held that a road dedicated to, and used
by the public, is still a public highway, although the requirements of the 23rd
section of the statute have not been complied with, so as to make it repair-
able by the parish; see also Fawcett v. York and North ]\Hdland Eaihrnii Co.,
10 Q. B. 614 (rt) ; [and li. v. Thomas, 7 E. & B. 399, where it was held that a
non-compliance with tlie provisions of this section did not operate to relieve
a parish from the liability to repair a road which had been originally made by
turnpike trustees under a temporary act and had been used by the public, and
repaired by the parish, both before and after the expiration of the act.

An appeal by the persons dedicating the highway lies to the quai'ter ses-
sions against an order by justices, under this section, adjudging that a new
road is not of sufficient utility to justify its being kept in repair by the parish,
R. V. Justices of Derbyshire, 1 E. B. & E. 69.

St7'eets which become highways within districts to which the Public Health
Acts have been applied, are placed by those statutes under the management
and control of the sanitary authority. And when any street, not being a
highway at the time when the Public Health Acts are applied to the district
in which it is situated, is sewered, levelled, paved, flagged, and channelled to
the satisfaction of the sanitary authority, the sanitary authority may, by
notice in writing put up in the street, declare it to be a highway, and there-
upon it becomes a highwaj'' repalral)le under the rates levied under these acts.
The sole proprietor of the street, or if there is more than one, the majority
in num1:)er of the proprietoi's, may, however, object by notice in writing to
such declaration, and so interfere with the action of the sanitary authority.
See sects. 68 and 70 of the 11 & 12 Vict. c. 03, and sect. 42 of the 21 &. 22
Vict. c. 98, 38 & 39 Vict. c. 55, s. 149. Hesketh v. Local Board of Atherton,
L. R. 9 Q. B. 4, 43 L. J. Q. B. 32. The term " highway," as used in the sec-
tions means highways " repairable by the inhabitants at large; " see the 15 &
16 Vict. c. 42, s. 13, which words are used in contra-distinction to "repair-
able by individuals ni/ioin' tninra-." (tilismi v. .Maynr if Prc'^/aii, !>. R. 5 Q. H.
218; and see Hirst v. Hilifax Local Board, L. R. 6 Q. B. LSI, 40 L. J. jNI. C. 43.

It is by no means clear whether these provisions were meant to supersede
altogether the enactments of the 23rd section of the 5 & 6 W. 4, c. 50, where

1404 DOVASTON V. I'AYNE.

the new hij^hwuys are urban hijrhways or streets, or wliether it was intended
tiiat, in cases of dedication l)y |>rivate persons or corporations, tlie uiacliinery
both of this act and of the Puijlic Health acts should l)e applied. See lieg. v.
Inhahs. of Dukinfidd, 4 B. & S. 158.]

Special provisions have been made by the Legislature respcctlti;^ tlic rc|)air
of roads wiiicli liappen to pass alon;; the boundary line of two jiarislies, so as
to have one side in one parisii, and the other side in another parish. See 5 &
6 \V. 4, c. 50, ss. 58, 51), (;0, «1 ; Rffj. v. Perkins, 14 Q. B. 2L".t.

It has been said that the common-law liability to repair hiiiliways, may be
imposed on other persons tlian tiie parishioners at hirjje under certain cir-
cumstances. These are —

1. Where the owner of the land through which a highway passes, incloses,
in which ca.se he becomes liable to repair as much of it as he has inclosed,
Sir E. Duncuinbe's Case, Cro. Car. 3(;(>; tlie reason of this is that tiie inclo-
sure prevents the public from exercising their right, which has been before
spoken of, riz., that of going on the adjacent land wiien the highway is im-
passable; and the repairs to whidi he is subjected are stricter than the lia-
bility even of tlie parish, for tlie parish is oidy obliged to keep the road in ,
tlie .same state in which it has always been; whereas the person who has
inclosed, is bound to maintain <t fiirffrt ijimd way ; and, if he do not, tlie pub-
lic may justify making gaps in his inclosure, and going into his grounds as
far as is necessary to avoid the bad way, Ilenn's Case, Sir W. Jones, 2ytj; see
R. V. Flecknow, Burr. 461, and 3 Salk. 182; also the observations of Abbott,
C. J., in Steele v. rrivkett, 2 Stark. 4G8, et seq. He may, however, get rid of
his liability by destroying his inclosures. A', v. Stoinihtnn, 2 Wins. Saund.
lOO, note 12. When there is an ancient inclosure on one siilc of a road, and
the owner of the land on the other side incloses it, he shall maintain the whole
way, li. v. Stoui/hton, 2 Wms Saund. IGl, note; if there be no such ancient
inclosure, he shall only repair half the way, li. v. Slouyhton, 1 Sid. 404;
where two inclose, they shall n-puir the way in moieties, ibid.; and see 2
Wms. Saund. 161, in notis.

[It may be mentioned here that the owner of land is under no legal obliga-
tion to fence an excavation in it, unless it is made so near to a public road or
way as to constitute a public nuisance, Uminsell v. Smyth, 7 C. B. N. S. 731;
and when a person dedicates a way to the public, he restricts himself in the
use of the adjoining land only to this extent : he cannot make any use of the
land which reiulers the way dangerous to persons who are upon it, and using
it, for this would be derogating from his grant. lie is not, however, bound
to fence the adjoining land, even though it contain an excavation, nor is he
liable to a person who strays from the road and is injured by falling into the
excavation, unless it substantially adjoins the highway so as to constitute a
nuisance. See the judgment of the Court of Exchequer in Hardcastle v. The
South Yorkshire Railway Co., 4 H. & N. 67. See also Barnes v. Ward, 9 C. B.
392; and Binks v. The South Yorkshire Rail. Co., 3 B. & S. 244.

In Hadley v. Taylor, L. R. 1 C. P. 53, the occupier of an unfurnished ware-
house adjoining a highway was held liable for not fencing a '-hoisthole"
within 14 inches of the highway, used to raise goods from the cellar to the
upper floor of the warehouse.

A person who uses any part of a highway in an unreasonable manner to the
special damage of an individual passing along it is liable to an action. As,
for instance, if he leave a van and steam plough or a roller on the grassy side
of a highway, whereby a horse is frightened, although the obstacle did not

DOVASTON V. PAYNE. 1405

project into the t-ia trita sufficiently to obstruct the passage there. Harris v.
Mohbs, 3 Ex. D. 268; WiVdas v. Day, 12 Q. B. D. 110; see also Fritz v. Hob-
son, 14 Ch. D. 542, 49 L. J. Ch. 321.

But a private individual cannot of his own authority abate a nuisance in a
public highway unless it does him a special injury, and he can only interfere
with it as far as is necessary to exercise his right of passing along the high-
way, Dimes v. Petley, 15 Q. B. 276; Arnold v. Holbrook, L. R. 8 Q. B. 96, 42
L. J. Q. B. 80 ; Denupy v. Thicaites, 2 Ex. T>. 21.

It is the duty of persons diverting a highway under statutory powers to
take proper pi'ecaution by fencing, or otherwise, to protect passengers at the
point of diversion; Hunt v. Taylor, 14 Q. B. D. 918, 54 L. J. Q. B. 310.

We have already seen (ante, p. 167) that if a highway is dedicated to the
public with a dangerous obstruction on it, or excavation in it or near it, no
action can be maintained against the person dedicating for an injury caused
thereby.]

2. The burthen of repair may be cast on a particular person by prescrip-
tion; this prescription, if alleged against a corporation, may be general (see
B. V. Birmingham and Gloucester Baihoay Co., 3 Q. B. 223, where the question
was discussed whether an indictment for non-repair would lie against a cor-
poration, and held that it would; and see B. v. Great Northern Bailway Co.,
9 Q. B. 315) ; but, if alleged against an individual, some consideration for it
must be shown, ex (jr., the having lands holden by such service, 1 Hawk. P. C.
c. 76, s. 8. See B. v. Kerrison, 1 M. & S. 435; 13 Rep. 33; Bac. Abr. High-
way, F. ; B. v. St. Giles, 5 M. & S. 260 ; and Priestley v. Foulds, 2 M. & G. 175.
And when lands holden by such charge are conveyed to several, the charge is
not apportioned among them, but each is liable to the whole repairs, and
must have contribution from the others, Begina v. Duchess of Bncklngh, 1
Salk. 358; A', v. Buckeridge, 4 Mod. 48; 3 Vin. Abr. Apportionment, 5, pi. 9.

[So if there can be a prescriptive liability of one parish to repair highways
in another parish, which is doubtful, it can not arise except on sufficient con-
sideration, Reg. V. Ashhy Folville, L. R. 1 Q. B. 213. As to exemption by
immemorial custom, see Reg. v. Rollett, L. R. 10 Q. B. 469.]

Whetiier the obligation to repair a highway ratione temtrce must of neces-
sity be immemorial, has been doubted. But see R. v.. Haynian, Moo. & M.
402 ; and per Taunton, J., R. v. Middlesex, 3 B. & Ad. 210. See the able argu-
ment of Mr. Cresswell on this subject, in R. v. Scarisbrick, 6 A. & E. 513,
where he contends that the true rule is that a highway is prima facie pre-
sumed to be immemorial ; and therefore the origin of obligation must usually
be so too. But that where the origin of the road can be shown, so may that
of the obligation ; and he refers to Mayor of Lyme Regis v. Henley [3 B. &
Ad. 77, 1 Bing. N. B. 222], to show that such an obligation is capable of a
modern origin.

The obligation to repair ratione tenures seems to be enforceable in the first
instance against the occupier, who is the only person known to the public,
and who has his remedy over against the owner. Baker v. Greenhill, 3 Q. B.
148 ; and qncere, whether the owner of lands bound to repair ratione temtroi is
liable to be indicted as such though he be not in occupation, and the lands be
occupied by another; see R. v. Sntton, 3 A. & E. 597, where lands so charged
with repairs were occupied by the guardian in socage of an infant eleven
years old, who had inherited them : it was licld : 1. that the infant was not
indictable as oAvner : 2. that the guardian was.

Tiio liability to repair, whether arising ratione teniira;, or otherwise, is at

1406 DOV ASTON V. J'AVNK.

an end wlien the road has been totally destroyed by the act of f Jod ; as, for
instance, when it has been washed away by the action of the sea, lieg. v.
Bamber, 5 Q. B. 279; Iie(j. v. Hornsea, 23 L. J. M. C. 59; Dearsley C. C. K.
291, S. C. ; [but see liey. v. Greenhuw, 1 Q. B. 1). 703, as to what amounts to
the act of God.]

If a road had been widened, the mode of doinir wliidi is now provided l)y
5 & fi W. 4, c. 50, s. 82, the parisli must at common hiw have repaired the new
part thereof, li. v. West Ridimj of Yorksfiiit', 2 Kast, 353; st. 4, G. 4, c. 95,
s. G8. But now, wlien a road is widened, diverted, or turned, tlie parish
must repair the wliole : and means are provided for enforcing a rateable con-
tribution from the persons previously liable to the reparation, 5 & G \V. 4,
c. 50, s. 93. And see 4 G. 4, c. 95, and li. v. Inhahitants of Burton, 11 A. & K.
343.

By sect. 02 of the said act, a mode is chalked out of converting a hi<;hway,
repairable by a corporation, or individual, into a i)arish highway, and llxing
the compensation to be paid l)y tlic party to Ije relieved from the onus of
repairing.

3. The inhabitants of a particular township witliin a parish, may, lnj ms-
tom, be bound to repair the highways lying williin its own Ijoundary, A', v.
Ecclcsfielil, 1 B. & A. 348; altliough it is not proved alUrmatively tliat there
are, or have been, ancient highways in the township, li. v. Bdrnoldsirirf,; 4
Q. B. 499; Rrtj. v. AnUh'y, 3 Q. B. D. 255. In like manner, a parish may, by
immemorial custom, be charged with the repair of a briilgc instead of the
county. B. v. IIemlon,\ B. & Ad. G28 ; but [prol«ibly] not witii the repairs of
a highway out of its own boundary, R. v. *SV. Giles, 5 M. & S. 2C0; 7?. v.
Machynlleth, 2 B. & C. IGG; [/.V7. v. Ashhy Folnlle, L. R. 1 Q. B. 213.]

By such a custom the township is placed on the same footing as a parish,
with i-espect to the highways within it, whether new or old, R. v. Hatfield, 4
B. & A. 75; R. v. Eastrinyton, 5 A. & E. 7G5 ; A", v. I/eayc, 2 Q. B. 132; Rey.
V. Ardsley, 3 Q. B. 1). 255; so a particular tything may be liable by custom to
repair the roads within it, Rey. v. East Mark, 11 Q. B. 877. See 5 & G W. 4,
cap. 50, sect. 5.

See further, as to highways, and particularly as to pleadings relating to
them, the notes to R. v. Stouyhtun, 2 Wms. Saund. 462: and as to bridges,
see stats. 22 II. 8, cap. 5; 43 G. 3, cap. 59, .sect. 5; and 5 & 6 VV. 4, cap. 50,
sects. 21 & 22. [Bey. v. Upper Half Hundred of Chart, L. R. 1 C C R. 237;
38 & 39 Vict. c. 55, s. 147; 41 & 42 Vict. c. 77, ss. 21, 22; Bey. v. Somerset-
shire, 38 L. T. 452.]

The above observations havp, to avoid confusion, been confined to high-
ways over land. But it is clear that the channels of public navigable rivers
were always highways. See Mayor of Colchester v. Brooke, 7 Q. B. 339, to
which case the reader is referred, as containing much useful information
upon the extent of the rights of the public iu navigable tidal rivers. [See
also Atty.-Gen. v. Lonsdale, L. R. 7 Eq. 377, 38 L. J. Ch. 335; Same v. Terry,
L. R. 9 Ch. 423; Oriyinal Hartlepool Collieries Co. v. Gihh, 5 Ch. D. 713,46
L. J. Ch. 311. If a permanent obstruction be placed in a navigable river, the
persons entitled to use the river as a highway may remove it, Eastern Counties
Railway Co. v. Dorliny, 5 C. B. N. S. 821.]

Up to the point reached by the flow of the tide the soil was presumably in
the crown ; above that point, whether the soil at common law was in the
crown or in the owners of adjacent lands, was a point perhaps not free from
doubt; there was at least a jurisdiction in the crown to reform and punish

DOVASTON V. PAYNE. 1407

nuisances therein. It was therefore at common law illegal to erect weirs,
&c., so as to obstruct the channel. Those prior to Edward the First's reign
are, however, legalised by the construction of 25 Edw. 3, c. 4, which pro-
vided for the destruction of those levied subsequently, Williams v. Wilcox, 8
A. & E. 3U. [RdUc v. IVhi/te, L. R. 3 Q. B. 286, 37 L. J. Q. B. 105; Leconfield
V. Lonsdale, L. K. 5 C. P. (557, 39 L. J. C. P. 305.]

What is a highway ? — A public highway is one under the
control of, and kept up by, the public, and must either be estab-
lished in a regular proceeding for that purpose, or generally
used by the public for twenty years, or dedicated hy the owner
of the soil and accepted by the proper authorities. See Kennedy
V. Williams, 87 N. C. 6. "The primary and fundamental object
of all public highways is to furnish a passage-way for travellers
in vehicles or on foot, through the country ; " Kuger, C. J. in
People V. Squire, 107 N. Y. 593.

Highways how created. — First, a highway may be created by
the voluntary act of the owner of the soil, provided such dedi-
cation of land by its owner is accepted by the public, acting
through its proper representatives. To establish a public way
by act of the owner, two circumstances must unite. In the first
place, that owner must clearly dedicate the land to the use of
the wiiole people ; in the second place, that people must accept
the land so dedicated to them; Cook v. Harris, 61 N. Y. 448;
Rozell V. Andrews, 103 N. Y. 150 ; Booraem v. North Hudson
County Railway Company, 39 N. J. Eq. 465 ; In re Alley, 104
Pa. St. 622; Bell v. City of Burlington, 68 Iowa 296; Shell-
house V. State, 110 Ind. 509 ; Kennedy v. Williams, 87 N. C.
6 ; Morse v. Zeize, 34 Minn. 35 ; Hayward v. Manzer, 70 Cal.
476 ; Mayberry v. Standish, 56 Me. 342 ; Parsons v. Trustees,
44Ga. 529; Scott v. Cheatham, 12 Heiskell 713; Folsom v.
Town of Underbill, 36 Vt. 580 ; McCain v. State, 62 Ala. 139.

What is an act of dedication ? — It is ordinarily a question of
fact whether the act of the land-owner constituted a dedication.
The thing to be sought after is whether he disclosed an appar-
ent intention to devote his land to the public use. What his
secret intention may have been is not so much to be considered
as the intention he disclosed to all the world ; City of Indianap-
olis V. Kingsbury, 101 Ind. 200. It will be difficult, therefore,
if not impossible, to lay down any one rule applicable to all
cases. Each individual case will have to be decided by itself.

1408 DOVASTON V. TAYNi:.

taking into coiisidcnition all tlie attendant circumstances, the
condition of the respective parties, and liic ads, declarations,
and intentions of the hmd-owner as nianifcslfd l)y his conduct.
For it is largely on the ground of an esto])pel in pais tliat the
principle of dedication rests. See Vanatta v. Jones, 13 X'rooni
501; Cook V. Harris, ()1 N. Y. 44H ; State v. Otoe County,*)
Nehraska 120; City of Indianapolis v. Kingsbury, 101 Ind. 200.
But no particular formality is necessary in order to show dedi-
cation ; Morgan v. Chicago cS: Alton H. R. Co., O(') U. S. 710. It
may be by parol ; Cook v. Harris, Gl N. Y. 448; Harding v.
Jasper, 14 Cal. (J42 ; Raker v. Pratt, 15 111. 508; Dover v. Fox,
9 H. Monroe 200 ; Carter v. Portland, 4 Oregon 330. In fact,
an// act or conduct of the land-owner showing an intention to
dedicate will be sullieient ; Chica<;o r. \Vri<dit, 48 111. 285;
McCormick V. Mayor, 45 Md. 512: Huch r. Rock Islaud, 07
U.S. 693; Pierpoint v. Town of Ilariisville, ^V. Va. 215;
Atkinson v. liell, IS Texas 474 : Connehan /'. Fold, Wiscon-
sin 240; Crump r. Mims, lil N. ( '. 7t">7 ; Livermorc r. Maquo-
keta, 35 Iowa 358; Mansur r. Ihiugliey, 00 Ind. 304; Case v.
Favier, 12 Minn. 80; Pencpiitc r. Lawrence, 11 Ohio St. 274.
Yet certain acts of a land-owner have been held to constitute a
strong, if not conclusive, presumption of an intention to dedi-
cate. Perhaps the most common case is that of one selling lots
of land or house on a map, a plat with a road running by them,
and designated as a street. It is held that this is the strongest
evidence of dedication. See Matthicssen & Ilegeler Zinc Co. v.
City of La Salle, 117 111.411; Rathmau v. Norenberg, 21
Nebraska 467; Eastland v. Fogo, 66 Wisconsin 133; Fulton v.
Town of Dover, 6 Central Reporter 848 (Court of (lianceiy of
Delaware); City of Iiulianapolis v. Kingsbury, 101 Ind. 200;
III re Opening of Pearl St., Ill Pa. St. 565; Hawley v. Balti-
more, 33 Md. 270 ; Clark v. City of Providence, 10 R. 1. 437 ;
Briel v. City of Natchez, 48 Miss. 423 ; Tinges v. Mayor, 51 Md.
600; Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61. But see Cent.
Land Co. v. City of Providence, 1 New England Rep. 873.

So a dedication of land can be made subject to a right to des-
ignate a portion thereof for use for railroad purposes, and when
such portion has been devoted to railroad purposes the public
use will be suspended as long as that portion is used for railroad
purposes ; Ayres v. Penn. Ry. Co., 19 Vroom 44. And wherever
dedication on a condition, the condition must be fulfilled before

DOVASTON V. I'AYXE. 1409

the dedication becomes operative; Creamer c. McCuiie, 7 Mo.
Ap. 91 ; St. Louis v. Meier, 77 Mo. 13 ; Brougliner v. Clarks-
burg, 15 W. Va. 394. But merely opening a space or taking
down a fence will not be a dedication ; Rozell v. Andrews, 103
N. Y. 150; Bowers v. Suffolk Man. Co., 4 Cush. 332; People
V. Jones, 6 Mich. 192 ; Barker v. Clark, 4 N. H. 383 ; Saulet v.
City, 10 La. Ann. 81 ; Cyr v. Madore, 73 Me. 53. And see, also,
Gowen v. Philadelphia Exc. Co., 5 W. & S. 141 ; Valentine v.
Boston, 22 Pick. 75; Smith v. State, 3 Zab. 130; White v.
Bradley, 66 Me. 254. A dedication may be revoked before
acceptance ; Cook v. Harris, 61 N. Y. 448. But when accepted
it is irrevocable ; Shanklin v. City of Evansville, 55 Ind. 240 ;
City V. Canavan, 42 Cal. 541.

Who may dedicate and what can be dedicated. — Having con-
sidered what will effect a dedication, it will now be necessary
to consider who may make such dedication and what property
can be so dedicated. Only the owner of the soil can dedicate
it to the public ; Kennedy v. Williams, 87 N. C. 6 ; Bangan v.
Mann, 59 111. 492; Harding v. Town of Hale, 83 111. 501; City
of Hannibal v. Draper, 36 Mo. 332 ; McBeth v. Trabue, 69 Mo.
642. Hence an executor could not make a dedication ; Paret
V. Bayonne, 11 Vroom 333. But if the will authorized him to
he might ; Kaime v. Harty, 73 Mo. 316. Nor could a mortgagor
unless the mortgagee assented; Hoole v. Attorney General, 22
Ala. 190. A corporation may make a dedication ; Williams v.
N. Y. & N. H. R. Pt. Co., 39 Conn. 509 ; Story v. N. Y. E. Co.
R. R., 90 N. Y. at p. 145. But a mere occupier of government
lands cannot ; Smith v. Smith, 34 Kan. 293 ; Gentleman v.
Soule, 32 111, 271. Nor a person under a disability; State v.
O'Laughlin, 19 Kansas 504. A trustee may dedicate in accord-
ance with the trust ; Prudden v. Lindsley, 29 N. J. Eq. 615.

The fact" that the way is not open at both ends will not pre-
vent it from being capable of dedication. A cul de sac may
become a highway ; People v. Kingman, 24 N. Y. 559 (over-
ruling Holdane v. Cold Spring, 23 Barbour 103) ; People v. Jack-
son, 7 Mich. 451; Sheaff v. People, 87 111. 189; Yandemark v.
Porter, 40 Hun 397 ; Bartlett v. Bangor, 67 Me. 460 ; State v.
Bishop, 39 N.J. 226; Schatz v. Pfeil, 56 Wis. 429. Land
may be dedicated for public squares ; Abbott v. Cottage City,
143 jMass. 521 ; Methodist Episcopal Church v. Hoboken, 4
Vroom 13 ; Rowan v. Portland, 8 B. Mon. 232 ; Princeville v.

1410 DO V ASTON V. I'AVXK.

Aiiteii, 77 III. 325 ; Mowry v. City of Providence, 10 R. I. 52.
A dedication must be to all the public ; Mowry v. City of Prov-
idence, 10 R. I. 52; Tupper v. Hudson, 4G Wis. G40 ; Trerice
V. Barteau, 54 Wis. 99.

What is acceptance by the public? — In considering the other
branch of the question, it will again a[)pear that it is mainly a
question of fact whether the dedication by the land-owner was
followed by that acceptance on the part of the public wliich it
has been seen is necessary to constitute the land a highway.
Here, too, each case must be determined by its own circum-
stances. As land need not be dedicated ])y its owner in any
particular manner, so the acceptance need not be proved by any
one act. Still, it is somewhat easier to specify what will be an
acceptance than what a dedication. There are certain acts so
clear and unequivocal as to leave no doubt of an acceptance, —
the expenditure of money on a road, paving it, repairing it, and
all such acts, the proper municipal authorities indicating that
they have assumed control of the land, are unmistakable evi-
dence of acceptance by the public ; State v. Kisele, 3-3 N.. W.
Reporter, 785 ; People v. Loehfelm, 102 N. Y. 1 ; Ross v. Thomp-
son, 78 Ind. 90; Parsons v. Trustees, 44 Ga. 529, It is from
the very fact that this liability of a town to repair the highways
attaches that clear evidence of acceptance is necessary ; Bowers
V. Suffolk Man. Co., 4 Cush. 333 ; Hyde v. Jamaica, 27 Vt. 443.
So, too, a long continued use of the road by the public will be
sufficient evidence of acceptance ; indeed, this long continued
use with the knowledge of the land-owner would be strong
evidence of the dedication as well as the acceptance ; Ely v.
Parsons, 55 Conn. 83 ; Veale v. City of Boston, 135 Mass. 187 ;
Brakken v. Minneapolis Ry. Co., 29 Minn. 41 ; People v. Blake,
60 Cal. 497 ; People v. Loehfelm, 102 N. Y. 1 ; Carr v. Kolb, 99
Ind. 53 ; Cora, of Pa. v. Moorehead, 10 Central Rep. Oil ;
Kinnare v. Gregory, 55 Miss. 612; City v. Canavan, 42 Cal. 541 ;
Buchanan v. Curtis, 25 Wis. 99; Ross v. Thompson, 78 Ind. 90.
But see Peyton v. Shaw, 15 111. Appeals 192, where twenty-years
user was held not conclusive evidence of dedication.

Abandonment of highways. — A public highway may be given
up and lost by discontinuance. To decide whether there has
been an abandonment, we must consider all the facts and all
the action of the public. The public may, of course, release
their easement to travel over another's land and in such case the

DO V ASTON Y. PAYNE. 1411

land will revert to the abuttino- owner unless he claims throuQ-h
one wlio has clearly reserved the ownership of the fee in him-
self. Adopting one road to travel on and ceasing for a long
time to use another may operate as a discontinuance; Shelby
V. State, 10 Hump. 165 ; Grube v. Nichols, 36 111. 92 ; Railroad.
V. O'Conner, 37 Ind. 95 ; Webber v. Chapman, 42 N. H. 326.
But until the road is actually needed for use, non-user will not
show a discontinuance ; State v. Leaver, 62 Wis. 387 ; Reilly
V. City of Racine, 51 Wis. 526. So if the road has been fenced
up and improved by the owner of the land for over twenty
years, it will be evidence of abandonment ; Holt v. Sargent, 15
Gray 97. But the city cannot abandon a part of a street for
twenty years, allow the adjoining owner to use it for that time,
then provide it shall revert to the city ; Glasgow v. City of St.
Louis, 87 Mo. 678. As a result of the doctrine that the high-
way belongs to the abutting owners, subject to the public use
of it for the ordinary purposes of a highway, comes the other
rule of law established in a larger part of the states that a con-
veyance of land having as one of its bounds " to a street," " to
the highway," or some equivalent term, will convey the fee
to the centre of the street, unless the language of the de-
scription is so qualified as to show clearly that the soil of the
highway is reserved from the grant by the grantor ; Mat-
thiessen & Hegeler Zinc Co. v. City of La Salle, 117 111.
411; City of Indianapolis ik Kingsbury, 101 Ind. 200; Bliss
V. Ball, 99 Mass. 597; Palmer v. Dougherty, 33 Me. 507;
Peck V. Denniston, 121 Mass. 17 ; Kings County Fire Insur-
ance Co. V. Stevens, 87 N. Y. 287, when Andrews, C. J.,
says, "It is generally conceded that a grantor of land abut-
ting on a highway may reserve the highway from his grant.
But the presumption in every case is that the grantor did
not intend to retain the highway, and such reservation will
not be adjudged, except when it clearly appears from the
language of the conveyance that such reservation was in-
tended;" Hamlin y. Pairpoint Mass. Co., 141 Mass. 51; He-
gar V. Chicago & N. W. R. R., 26 Wis. 624 ; Paul v. Carver,
26 Pa. St. 223 ; Spackman v. Steidel, 88 Pa. St. 453 ; Nich-
ols V. Suncook Man. Co., 34 N. H. 345; Witter v. Harvey,
1 McCord, 67 ; Chatham v. Brainerd, 11 Conn. 69 ; Champlin
V. Pendleton, 13 Conn. 23; Johnson v. Anderson, 18 Me. 76;
Adams v. Saratoga & Washington Railroad Co., 11 Barbour

1412 DOVASTON V. pavkp:.

414 ; Florida Southern Ky. Co. v. Brown, 1 Southern Reporter,
512; Rich f. City of Minneapolis, 35 N. W. Rep. 2. Yet the
grantor can reserve the soil of the highway to himself by using
clear language. What will amount to such a reservation is a
(jucstion of some dilliculty and there is a diversity in the decis-
ions of the different states. In Massachusetts and in New
York the presumption of title extending to the centre of the
street seems to be one more easily iel>utte(l than in the other
states. By legislation the fee of the soil in almost all the
streets in New York city is vested in the city. In Knglish v.
Brennan, GO N. Y. 000, it is stated that the presumption that
the grantor intended to convey his intiMi'st in the street is
much less strong in large cities. In Munn v. Worrall, 5^1 N. Y.
44, an exception "saving and excepting from the prenuses
hereby conveyed all and so much and such part and parts
thereof as has or have been lawfully taken for a public road or
roads" was held sulhcient to rebut the presumjition of a con-
veyance of the fee. In Kings Co. Fire Ins. Co. v. Stevens, S7
N. Y. 2S7, where tlu' description was beginning at a jioint on
the southerly side of road running thence southerly, thence
westerly, thence northerly to the road, thence along said road
to the point or place of beginning, it was held thai the grant
was bounded by the southerly side (»f the road and did not
extend to the centre of the highway. Yet in Vail v. Long
Island R. R. Co., 100 N. Y. 283, where land was conveyed to a
town with the usual covenants of warranty "to be used as
a highway, with all the jjrivileges thereto belonging, for such
purpose only, with the appurtenances and all the estate, title,
and interest of the said parties of the first part therein," it was
held that the deed conveyed the fee of the land and not the
easement merely. In Hamlin v. Fairpoint Man. Co., 141 Mass.
51, a description " to the land of Howland street and thence
easterly in line with said street " was held not to convey to the
centre of the street. In Sibley v. Ilolden, 10 Bickering 240, a
description beginning at a stake on the southerly side of a
road, thence to said road, thence by said road easterly,
was held to exclude the highway. In Smith v. Slocomb,
Gray 30, a similar description was held to exclude the high-
way. For other cases where the description was held to rebut
the presumption of an intent to carry title to the centre of the
highway, see Baltimore & Ohio R. R. Co. v. Gould, 7 Central

DOVASTON^ V. PAYNE. 1413

Reporter 379 (Court of Appeals of Maryland); Jackson v.
Hathaway, 15 Johns. 447 ; Wetmore v. Law, 34 Barber 621 ;
Sunderland v. Jackson, 32 Me. 83 ; White's Bank of Buffalo v.
Nichols, 64 N. Y. 65 ; City of Chicago v. Rumsey, 87 111. 348 ;
Hughes V. Providence & Worcester R. R., 2 R. I. 508 ; Higbee
V. C. & A. R. R., 19 N. J. Eq. 276 ; Wellman v. Dickey, 1 New
Eng. Rep. 342 (Supreme Court of Maine).

Ownership of soil of highway. — Oidinaril}^ the soil of the
highway belongs to the abutting property. The interest which
the public has in the highway is a right of way on land of
another for public travel while the abutting property owner
still retains his proprietorship of the soil, subject, hoAvever, to
the right of the public to its undisturbed use in such manner
as public streets are usually used. For authorities holding
that the ownership of the fee of the soil in a highway remains
in the owner of the land, see Town of Winchester v. Capron,
63 N. H. 605; Robert v. Sadler, 104 N. Y. 229; Pittsburgh
Railway Co. v. Commonwealth, 104 Pa. St. 583 ; Webber v.
Eastern Railway Co., 2 Metcalf 147 ; Tucker v. Eldred, 6 R. I.
404 ; Woodruff v. Neal, 28 Conn. 165 ; Town of Old Town v.
Dooley, 81 111. 255 (where the right to get water from springs
flowing along the highway was denied).

It would, of course, be competent for the municipal authori-
ties to take the fee of the land, as well as an easement over it
if they so elected. But in order to rebut the presumption that
an easement merely was taken, strong and conclusive evidence
would be required. In New York city in almost all the streets
the city does own the fee, but the act authorizing them to take
such fee expressly provides that they shall hold the same in
trust to keep the streets open as streets.

The interest the public has in a highway. — Highways are
designed to facilitate travel to and fro, and communication
between different points. For this purpose, and for this pur-
pose only, are they constructed and operated. It has been seen
that the ownership of the soil is, except in special cases, in the
abutting owner. Hence, subject to this easement of the public,
the land in the highway is his. The late decision of the Court
of Appeals, of New York, in Robert v. Sadler, 104 N. Y. 229,
brings out clearly this right of ownership of the abutting owner
and is valuable in reviewing the authorities. It was a case
where pits were dug in the sidewalk to obtain gravel to fill up

1414 DOVASTON V. I'AVNK.

the roadway. In other words, gravel of the owner was taken,
to be replaeed by poorer and eheajjcr gravel. The eonrt held
this a trespass and vigorously upheld the right of the adjoining
owner.

Horse railroads and steam railroads. — With the introduction
of horse railroads a new and important question came before
the state courts. Were the publii: authorities justified in grant-
ing to privat(! corporations the right to use the streets for their
railroad? The land-owner whose property had been taken in
invitum for the purposes of a highway iiad been duly (•oMi[)en-
sated. But did such eonipensation havi; in contemplation such
a new and novel use of the highways as this? With general
unanimity it has been decided that a horse railroad is but a
legitimate use of the highway; Ilinchman /'. Paterson Horse
R. R. Co., 17 N. J. Eq. 75; Elliot v. Fair Haven .^ Westville
li. Iv. Co., 32 Conn. 570; Attorney-General /•. Metropolitan
R. R., 125 Mass. 515; Market St. R. R. Co. i-. Central Railway,
51 Cal. 583; Ohio Street Railway v. CumminsviUe, 14 (). St.
523 ; Briggs v. Lewiston ik, Auburn Horse R. R. Co., 4 New
England Reporter 546 (Supreme Court of Maiiu-) in which case
the fact that the cars were to be run l)y electric motor was held
to make no difterence. A New Yoik ease lays down a contrary
ruling; Craig v. Rochester City & Brighton R. R. Co., 3*.> X. Y.
404. The court say, "The use of a railroad no matter how
operated, whether by horse or steam power, necessarily includes
to a certain extent an exclusive occupation of a portion of the
highway and a permanent occupation of the soil." Vet the
same court soon afterwards held in Kellinger v. Forty -second
Street & Grand St. Ferry R. R. Co., 50 N. Y. 206, that where
the city owned the fee of the soil the abutting property owner
was not damaged. See, also, Mahady v. Bushwick R. R., 91 N. Y.
148 ; and People v. Kerr, 27 N. Y. 188.

A steam railroad is generally regarded as a use of tlie high-
way not within the contemplation of the parties when the land
was taken, and so not a legitimate use of the highway. The
New York courts have uniformly laid down the doctrine that
to permit a railroad operated by steam to use the highway is to
impose on the land a new and additional burden to the ease-
ment of the public, and entitles the land-owner to additional
compensation ; Williams v. N. Y. Cent. R. R., 16 N. Y. 97 ;
Henderson v. N. Y". Cent. R. R., 78 N. Y. 423 ; Uline v. N. Y^ C.

DOVASTON V. PAYXE. 1415

& H. R. R. Co., 101 X. Y. 98; where Earl, J., says: "If the
railroad be built upon or over a highway the public right or
license must be obtained not only, but so far as individuals'
own private lights or interests in the highway or the soil
^hereof, they must also be lawfully acquired ; ... as to them
and their rights the railroad is unlawful, a continuing nuisance
which they can cause to be abated." In his dissenting opinion
in Pierce v. Drew, 136 Mass. 75, Mr. Justice C. Allen says that
in Massachusetts it is an open question whether a railroad could
be laid on the highway without indemnifying the owner of the fee.

In accord with the New York decisions are Grand Rapids &
Indiana R. R. Co. v. Heisel, 38 Mich. 62 ; Stanley v. City of
Davenport, 6 N. W. Rep. 706 ; Hegar v. Chicago & N. W.
R. R., 26 Wis. 624 ; I. B. & W. R. R. Co. v. Hartley, 67 111. 439 ;
Kaiser v. St. Paul, S. & T. Falls R. R. Co., 22 Minn. 149 ; Kuche-
man v. C. C. & D. R'y- Co., 46 Iowa 366, a case containing a
valuable review of the authorities. C. G. & B. R. R. Co. v.
Renfroe, 58 Mo. 265.

Opposed to the New York cases are Brainard v. The Missisquoi
R. R. Co., 48 Yt. 107 ; Colorado Cent. R. R. Co. v. Mollandin, 4
Colorado 154. See, also, the elaborate opinion of E. Rediield,
C. J., in Hatch v. Vermont Cent. R. R. Co., 25 Vt. 59. And for
a general collection of the authorities, see Pierce on Railroads,
pp. 232 to 242.

Elevated railroads, underground roads, telegraph poles, gas pipes.
— We are confined to the jurisprudence of one state for all our
law on the subject of elevated railroads ; but the decisions in
New York were so cautiously and carefuU}- considered that
the}' will doubtless obtain in other jurisdictions when similar
roads are constructed there. By Story v. N. Y^. Elevated Rail-
road Company, 90 N. Y. 122, it was established that the erection
of an elevated railroad fifteen feet above the surface of the
street, supported upon columns placed along the outer edge of
the sidewalks, was destructive of the use of the street as such,
and would violate the state constitution, unless compensation
was made to plaintiff for his property thus taken. See opinion
of Danforth, J., at p. 161 : " The public purpose of a street re-
quires of the soil the surface only. Very ancient usage permits
the introduction under it of sewers and water pipes, and upon
it posts for lamps. Of these things an abutting OAvner could
not complain, but he is not required to hold his peace in the

1410 UOVASTON V. I'AYNK.

presence oi siu-h an iTL-clioii as is tlueateiicd \>y tlu- defeudaiit."
The case of Lahr v. The Metiopolitaii Elevated Uaihvay Com-
pany, 104 N. V. 208, while lealliiininy^ the principle of law laid
down by the majority of the court in the Story case, also settles
definitely that it does not affect the right of the abutting owner
to recover daniao-es that he owns oidy an easement in the street,
not the fee. As to whether abutting owners on streets, not
opened under the Act of 1813, where the city owns the fee, can
similarly recover damages or maintain an action for an injunc-
tion, there can be little doubt, if the point is ever seriously
urged as a defence by the elevated railroad companies, that the
principle laid down in the two ciuses cited will be followed, and
all abutting pro})erty owners })e allowed a remedy provided they
can show any injury to their property. lint it must still be
regarded as an open question whether an abutting owner ean
recover for injury to his {)roperty due to noise. Two courts of
etjual standing have reaehed oftposite conclusions on this point,
and, until settled 1)\ the eonil of last resort, tlie matti-r nnist
remain a mooted one. See Peyser v. Metropolitan I'.levated
Railway Co., 13 Daly 12:^, where noise was held to be but an
ordinary use of the street ; Taylor v. Metropolitan Elevated
Ry. Co., 55 N. Y. Su[)erior 555, allows a recovery.

The New York Court of Appeals has very recently rendered
a decision l)y which it would appear that the construction of an
luiderground railway may be a violation of the rights of an
abutting pro})erty-owner in the Matter of N. Y. District Ry.
Co., 107 N. Y. 42.

Telephone poles. — There is great diversity in the few decis-
ions on the (piestion whether a telephone company can be
given the right to use the highway for the erection of its poles
without compensating the adjoining property owners. In Pierce
V. Drew, 136 Mass. 75, the matter is elaborately discussed, and
the majority of the court say that this would not be the imposi-
tion of a new burden on the land already taken for the use of the
public. Two judges dissent in a strong and carefully consid-
ered opinion. In accord with Pierce v. Drew are the cases, Julia
Building Association v. Bell Telephone Company, 13 Mo. App.
477; and in Dusenbury v. Mutual Telegraph Co., 11 Abb. N, C.
440 ; and Tiffany v. The U. S. Illuminating Co., 67 How. Pr. 73,
special term decisions of two New York courts have denied this
right, and this is more noticeable because in one, at least, of the

DOVASTON V. PAYNE. 1417

cases the abutting property owner did not own the fee of the
street. Board of Trade Telegraph Co. v. Barnett, 107 111. 507,
decides that the abutting property owner must be compensated
where he owns the fee of the street.

The municipal authorities have the right to authorize gas com-
panies to lay their pipes in the soil of the highway, and to lay
water pipes and to build sewers ; Commonwealth v. Lowell Gas
Light Co., 12 Allen 75, where Bigelow, C. J., says: "The right
Avhich the defendants have is only to use land, the whole bene-
fit of which has been previously taken from the owner and
appropriated for a public use, in such manner that no nuisance
shall be committed, no disturbance be created in the easement
of the public, and no injury done to abutting owners of private
property." See, also, Traphagen v. Mayor, etc., of Jersey City,
29 N. J. Eq. 206 ; Cone v. City of Hartford, 28 Conn. 363 ; Mil-
hau V. Sharp, 15 Barbour, remarks of Edward, P. J., at p. 210 :
" No one has ever seriously questioned the right of the city to
authorize their use for such purpose ; " yet in Bloomfield Gas
Light Co. V. Calkins, 62 N. Y. 386, it has been decided that in a
country town tliere would be a right of compensation.

Various other obstructions to the highway. — The use of the
highway, by both the public and abutting property owners, must
be a reasonable use with due regard to the rights of all parties.
As highways are established for public travel and convenience,
the public enjoyment of them is strictly limited to their legiti-
mate purpose. On the other hand, the owner of property on
the highway owes correlative duties to the public. As he is
entitled to be protected against obstructions on the highway by
the public, and against the public appropriating to itself any
part of the highway, so the public, too, is to be protected in a
reasonable use of tlie highway devoted to them. What is an
obstruction to the highway must largely depend on the circum-
stances of each individual case arising, on the question whether
considering the localit}- and the public need the use is a fair and
legitimate use by the public of their easement, or whether the
use of his property by the adjoining owners has a due regard for
the rights of the public.

In Callanan v. Gilman, 107 N. Y. 360, a tradesman was in the
habit of using a bridge to convey goods from his store to the
street, and the sidewalk would be obstructed from four to five
hours of each business day. It was held that this was an unrea-

1418 DOVASTON V. rAYNE,

sonable use of the sidewulk uiul eoustituted ;i iiuisaiiee. In
Elias V. Sutlierlanil, 18 Abl). X. ('. 126, it was lield an unreason-
able use of their premises for the "Seven Sntlieiland Sisters"
to use the bay window of their store on a busy, bustling street
in New York City, foi- eonibing their long hair in full view so
as to collect great crowds in front of their premises and interfere
with travel on the higliway. In Bianaliaii v. Hotel Co., 30 Ohio
St. 333, it was held that the defendant luid no liglit to use the
street fronting on plaintiff's premises l)y keeping coaches there
so as to interfere with his house. See, also, McCaffiey r. Smith,
41 Hun 117, and Turner r. Iloltzman, 54 Md. 14<S ; In .Iae(jues
V. National Exhibit Co., 15 Abb. N. C. 250, it was held unlawful
to exhibit comic pictures in a second story window so as to
attract a great crowd on the opposite side of the street, and
interfere with jjlaintiffs' business. Nor can the highway be used
for pasturing; Stackpole r. llealy, 1(5 Mass. 33; Parker r. Jones,
1 Alk'u 270: P.aldwiii r. Knsign, 4'.> Conn. 113.

Any perniaiient obstruction cannot be erected in the highway. —
W'hat is such an obsti lutinu is a ([UcstidU of fact. A woik of
art maybe erected in a highway if it docs not obstruct travel;
Tompkins v. Hodgson, 2 Hun 14i» ; a watch-house cannot,
Town of Wincliester v. Ca[)ron, ('•-) N. H. <>()">; nor caii weigh
scales, Huddleston r. Ivillbueh, 7 Athmtic Reporter, 210
(Supreme Court of Pa.). A scaffold may be temporarily
erected for the repair of a building; Hexamer r. Webb, 101
N. Y. 377 ; State v. Holman, 21> Ark. 58. And see on kindred
points, Chamberlain v. Enfield, 43 N. H. 350 ; and Mallory v.
Griffey, 85 Pa. St. 275. A liberty pole is lawful ; City of
Allegheny v. Zimmerman, 95 Pa. St. 287. See, also. Graves v.
Shattuck, 35 N. H. 257. For a case of moving a building
through the highway ; Welsh v. Wilson, 101 N. Y. 254. For a
case of use of skid to bring goods to one's store, and for a later
skid case, see Jochera v. Robinson, 06 Wis. 638.

Rivers. — The law as to rivers both above and below the flow
of the tide is the same as that of a highway, so far as the ease-
ment of passing of the public is concerned ; Chalker v. Dickin-
son, 1 Conn. 382 ; so far as relates to the ownership of the soil
is concerned, other principles come in. In rivers where the
tide ebbs and flows, the adjoining owaier can claim only to low
Avater mark, all beyond that belongs to the public ; Hart v.
Hill, 1 Whart. 124; Ball v. Slack, 2 Id. 508; Dillingham v.

DOY ASTON V. PAYNE. 1419

Roberts, 75 Me. 469; Home v. Richards, 4 Coll. 441; Mead
V. Ilayiies, 3 Raiid. 33 ; Arnold v. Mundy, 1 Halst. 1 ; Ashby v.
Eastern R. R. Co., 5 Met. 3G8 ; Jones v. Janney, 8 W. & S. 436 ;
Bickel V. Polk, 5 Harr. 325; Musser v. Hersliey, 42 la. 356.
As to the ownership beyond low water mark, see State v.
Pacific Guano Co., 22 S. C. 50 ; State v. Pinckney, 22 Id. 484 ;
Goodwin v. Thompson, 15 Lea 209 ; Naglee v. Ingersoil, 7 Pa.
St. 185 ; Chapman v. Kimball, 9 Conn. 38. In California high
water mark is made the dividing line, leaving the land between
high and low water mark in the public ; Long Beach Land &
Water Co. v. Richardson, 70 Cal. 206. In Iowa the same rule
seems to hold ; Houghton v. C. D. & M. R. R. Co., 47 la. 370.
In Missouri the ownership extends only to the water's edge ;
Meyers v. City of St. Louis, 8 Mo. Ap. 266. Low water mark
is strictly the dividhig line in the other states ; McCuUock v.
Aten, 2 Hamm. 308 ; Garner's Case, 3 Graft. 655 ; Handly v.
Anthony, 5 Wheat. 375 ; Litchfield v. Scituate, 136 Mass. 39.
See Gough v. Bell, 1 Zab. 156 ; 2 Zab. 441. If the owner
extend his structure beyond this mark he is guilty of a
purpresture which may be abated as a nuisance ; East Haven v.
Hemingway, 7 Conn. 186. See Union Depot Street R. R. Co.
V. Brunswick, 31 Minn. 297 ; and Sisson v. Cummings, 35 Hun
22 ; Gifford v. McArthur, 55 Mich. 535 ; Larson v. Furlong, 63
Wis. 323. The owner can prevent any obstruction being placed
between his land and the navigable way ; Shirley v. Bishop, 67
Cal. 543 ; Hamlin v. Pairpoint Mfg. Co., 141 Mass. 51.

Above the flow of the tide different rules apply, tlie public
still has the right of passage, but no right to fish, nor to claim
the soil that Ijelongs up to the middle of the stream to the abut-
ting owners ; People V. Piatt, 17 Johns. 195; Hooker v. Cum-
mings, 20 Id. 90 ; Browne v. Kennedy, 5 Harr. & J. 195 ; Comm.
Canal Fund v. Kempshall, 26 Wend. 404 ; Munson v. Hunger-
ford, 6 Barb. 265 ; Gavit v. Chambers, 3 Hamm. 496 ; Mariner
V. Schulte, 13 Wis. 692 ; Canal Trustees v. Haven, 5 Gilm. 548 ;
Morgan v. Reading, 3 Sm. & M. 366. As to right of passage,
see Adams v. Pease, 2 Conn. 481 ; Berry v. Carle, 3 Greenl.
269 ; McCullough v. Wall, 4 Rich. 69 ; Moor v. Veazie, 31 Me.
361; Warren v. Thomaston, 75 Id. 329. The law as to pur-
presture is the same as in tide water rivers; Kean v. Stetson,
5 Pick. 492 ; Ux parte Jennings, 6 Cow. 578 ; People v. Canal
Appraisers, 13 Wend. 355. Islands follow the same law as

1420 DOVASTOX V. PAYNE.

though the water covered them, they belong to the public or
the abutting owner according to whether they are tide washed
or not ; Middletown v. Sage, 8 Conn. 222 ; Claremont v. Carleton,
2 N. H. 369 ; Greenleaf v. Kilton, 11 Id. 531 ; Lunt v. Holland,
14 Mass. 149 ; Ingraham v. Wilkinson, 4 Pick. 268, See appar-
ently contra, Penn. Coal Co. v. AVinchester, 109 Pa. St. 572 ;
The middle of the stream is exactly half way across without
respect to depth ; McCuUough ?'. Wall, 4 Rich. 84.

An ordinary grant accordingly passes the title to the middle
of the stream ; Morrison v. Keen, 3 Greenl. 474 ; Sleeper v.
Laconia, 60 N. H. 201 ; Lincoln v. Wilder, 29 Me. 169 ; King v.
King, 7 Mass. 496; Jackson v. Louw, 12 Johns. 252; Noble v.
Cunningham, 1 McMull. Eq. 289; Norcross v. Griffiths, 65 AVls.
599. This of course may be restricted by apt words ; Dunlap
V. Stetson, 4 Mas. 349 ; Jackson v. Halstead, 5 Cow. 216 ; Hayes
V. Bowman, 1 Rand. 417. This restriction is implied where
the public transfers land bordering on tlie stream ; R. R. Co. v.
Schurmeir, 7 Wall. 282 ; Yates v. Milwaukee, 10 Id. 504 ; Serrin
V. Grefe, 67 Iowa 196 ; Wood v. Fowler, 26 Ka. 682. Usually
apt words are needed to create the restriction ; it must be ex-
press ; McCullough V. Wall, 4 Rich 84; Arnold v. Elmore, 16
Wis. 509 ; Hegar v. C. & N. R. R. Co., 26 Id. 624 ; Wash. Ice
Co. V. Shortall, 101 111. 46 ; Piper v. Connelly, 108 Id. 646 ;
Muller V. Landa, 31 Tex. 265 ; Attorney-General v, Evart
Booming Co., 34 Mich. 462 ; Fletcher v. Thunder Bay River
Boom Co., 51 Id. 277 ; June v. Purcell, 36 Ohio St. 396 ; Day
V. P. Y. & C. R. R. Co., 44 Id. 406 ; Luce v. Carley, 24 Wend.
451. Although some cases hold that the intention is to be
sought from the whole deed ; Hatch v. Dwight, 17 Mass. 289 ;
Litchfield v. Fergusbn, 141 Id. 97 ; Sanders v. McCracken, Hard.
258; Hall v. Whitehall Water Power Co., 103 N. Y. 129.

What shall be taken to be apt words of exclusion is a ques-
tion still open for discussion. In Child v. Starr, 4 Hill 369,
the words " to the Genesee River thence along the shore of said
river," &c., were held to be words of exclusion, as also are the
words "to the bank of the creek" in Halsey v. McCormick, 3
Kern. 297. See to same effect, Lincoln v. Wilder, 29 Me. 169.
"• To the river or any part of the river on which the island
doth abut " conveyed onl}^ to high water mark ; New York v.
Hart, 95 N. Y. 443. On the other hand, the words " up to the
river " were held not to exclude in Greenleaf v. Kilton, 11

DOVASTON V. PAYNE. 1421

X. H. 531. See Carter v. Ch. & O. R. R., 26 W. Va. 644.
" High -water mark " does not fluctuate with the advancing or
receding shore line ; Nixon v. Walter, 41 N. J. Eq. 103. The
line runs at right angles to the stream from the extremities of
the I'and to the middle of the stream; Knight v. Wilder, 2
Cush. 200. See, also, Turner v. Parker, 14 Or. 340. See Morris
V. Beardsley, 54 Conn. 338, for the rule as to seashore.

The law as to ponds and lakes not connected with the salt
water is the same as in the case of tide waters, the ownership
goes only to the water's edge ; State v. Gilmanton, 9 N. H. 461 ;
Wood V. Kelley, 30 Me. 47; Bradley v. Rice, 13 Id. 198;
Stevens v. King, 76 Id. 197 ; Wheeler v. Spinola, 54 N. Y. 377 ;
Canal Comms. v. People, 5 Wend. 446 ; Charaplain & St. L.
R. R. Co. V. Valentine, 19 Barb. 484. See Hodges v. Williams,
95 N. C. 331, which says an isolated lake, although large, is not
navigable, and a riparian owner is not entitled to land made
by a withdrawal of the water. In the states of Alabama, Iowa,
Michigan, Mississippi, North Carolina, Pennsylvania, West Vir-
ginia, and some other states the navigable rivers are treated
as tide waters ; Bullock v. Wilson, 2 Port. 436 ; Moore i'. San-
borne, 2 Mich. 520 ; Stover v. Jack, 60 Pa. St. 339 ; Shrunk v.
Schuylkill Nav. Co., 14 S. & R. 71 ; Ravenswood v. Flemings,
22 W. Va. 52 ; Wood v. Chicago R. I. & P. R. Co., 60 Iowa
456 ; Carson v. Blazer, 2 Binn. 475 ; Comm. v. Fisher, 1 P. & W.
462 ; Wilson v. Forbes, 2 Dev. 30 ; Comm. \k Withers, 29 :\Iiss.
39; see Wilson v. Welch, 12 Or. 353. This applies only to
navigable rivers ; Ingram v. Threadgill, 3 Dev. 59 ; Coovert v.
O'Conner, 8 Watts 470.

In tide waters the ownership of the soil is to low water mark,
but this is not absolute. The owner must not create a purpres-
ture there, for the easement of the public extends to high water
mark; he may, however, do anything which will not interfere
with this easement; Stover v. Jack, 60 Pa. St. 338; Wain-
wright V. McCullough, 63 Id. QQ ; Zug v. Commonwealth, 70
Id. 138 ; Charlestown & S. R. R. Co. v. Johnson, 73 Ga. 306.
The public may enter, from a boat, the unenclosed flats be-
tween high and low water marks, and from them fish in the sea;
Packard v. Ryder, 144 Mass. 440 ; see Bedlow v. N. Y. Floating
Dry Dock Co., 44 Hun 378.

^ For the definition of the word navigable it is necessary to go
to the cases. In The ^lontello, 20 Wall. 430, the court said,

1422 DOVASTON V. PAYNE.

" Rivers are navigable, in fact, when they are used, or are sus-
ceptible of being used, in their ordinary condition, as highways
for commerce, over which trade and travel are or may be con-
ducted in the customary modes of trade and travel on water.
And a river is navigable when it forms by itself or ita connec-
tions with other waters a continuous higln\'ay, over which ct»ni-
merce may be carried on."

A stream which will float logs to market is navigable ; Olson
V. Merrill, 42 Wis. 203 ; Shaw v. Oswego Iron Co., 10 Or. 371.
But if only at high water it is not ; Lewis v. Coffee County, 77
Ala. 190 ; contra^ Smith v. Fonda, 64 Miss. 551. The common
law test of navigability, viz., tide water, has never been adopted
in Pennsylvania ; Stover v. Jack, (JO Pa. St. 338. It need not
be navigable continuously at all seasons of the year; Walker v.
Allen, 72 Ala. 456. The Niagara is a navigable river in spite
of the falls ; Re State Res-Comms., 37 Hun 537. The natural
formation of sand bars and accumulation of timber will not
render it not navigable if it once was navigable ; Goodwill v.
Bossier, 38 La. An. 752 ; see Burroughs v. Whitwam, 59 Mich.
279.

ELWES V. MAWE.

MICH.— 43 G. 3, K. B.

[reported 3 EAST, 38.]

A tenant in agriculture, wlio erected, at his oivn expense, and for
the mere necessary and convenient occupation of his farm, a
beast-house, carpe7iter s shop, fuel-house, cart-house, pump-house,
and fold-yard ivall, which buildings were of brick and mortar,
and tiled, and let into the groimd, cannot remove the same,
though during his term, and though he thereby left the premises
in the same state as ivhen he entered. There appears to be a
distinction between annexatioris to the freehold of that nature
for the purposes of trade, and those made for the purposes of
agriculture and better e^ijoying the immediate profits of the
land, in favour of tlie tenant'' s right to remove the former; that
is, where the superincumbent building is erected as a mere acces-
sory to a personal chattel, as an engine ; but tvhere it is acces-
sory to the realty, it can in no case be removed.

The declaration stated, that the plaintiff was seised in fee of
a certain messuage, with the out-houses, &c., and certain land,
&c., in the parish of Bigby, in the county of Lincoln, which
premises were in the tenure and occupation of the defendant
as tenant thereof to the plaintiff, at a certain yearly rent, the
reversion belonging to the plaintiff; and that the defendant
wrongfully, &c., intending to injure the plaintiff in his heredi-
tary estate in the premises, whilst the defendant was possessed
thereof wrongfully and injuriously, and without the licence
and against the will of the plaintiff, pulled down divers build-
ings, parcels of the said premises, in his the defendant's tenure

142P.

1424 ELWKS V. MANVE.

and occupation, viz., a hfust-housi', a furpf titer's shop, a tvuifi/an'
house, a futl-house, and a pii/eon-Itoime, and a f>rirk uall inclosing
the fold-yard, and took ami canicd away the niaterials, wliirh
were the pro})erty of the jdaintiff, as landlonl, and i-onverted
them to his the defendant's own use; hy reason whereof the
reversionary estate of the plaintiiT in the premises was greatly
injured, »S:e. The defendant pleaded the general issue. Ami
at the trial at the last Lineoln assizes a verdiet was found for
the plaintiff, with i'Sl. damages, subject to the oi)inion of the
court on the follow'ing ease : —

The defendant occupied a farm, consisting of a messuage,
cottages, barn, stables, out-houses, and lands, at Bigby, in the
county of Lincoln, under a lease from the plaintiff for twenty-
one years, commencing i)n the 12th day of May, 1770; which
lease contained a covenant on the part of the tenant to keep
and deliver up in repair the said yni'Hsuaije, harn, tttahlen, and out-
houses, and other buildings Indonging to the said iifiuinetl prem-
ises. Al)out lifteeii vears bcfdic tlu' exj)iration of the lease the
defendant erected upon the same farm at his own expense a
substantial hetist-hmise, a ettrpenters x/iop, a t'uel-huuse, a rart-
house, and pump-houxe, an«l fold-yard. The buildings were of
brick and mortar, and tiled, and the foundations of them were
about one foot and a half deep in the ground. The carpenter's
shop was closed in, and the other buildings were open to the
front, and supported by bi ick pillars. The fold-yard wall was
of brick and mortar, and its foundatitm was in the ground.
The defendant, previous to the ex{)iiation of his lease, [)ulled
down the erections, dug up the foundati(Uis, and carried away
the materials, leaving the })reniises in the same state as when
he entered u[)on them. These erections were ueeexnitrif ami con-
venient for the occupation of the farm, which could not be well
managed without them. The question for the opinion of the
court was. Whether the defendant had a right to take away
these erections. If he had, then a verdict to be entered for the
defendant ; if not, the verdict for the plaintiff to stand.

This case was first argued in Easter Term last by Torkington
for the plaintiff, and Clarke for the defendant ; and again in
this term by Vaii(jhan, Serjeant, for the plaintiff, and Bahjuij
for the defendant.

For the plaintiff it was argued that the removing the build-
ings in question w^as waste at common law, and that this case

ELWES V. MA WE. 1425

did not fall within any of the exceptions, which had been intro-
duced solely for the benefit of trade in relaxation of the old rule.
That rule was, that whatever was once annexed to the freehold
could never be severed again without the consent of the owner
of the inheritance. Accordingly, glass windows, Avainscot,
benches, doors, furnaces, &c., though annexed by tenant for
years for his own accommodation, could not be removed by
him again, Co. Litt. 53 a. The principle on which this was
founded was the injury which would thereby arise to the inher-
itance from disfiguring the walls of the mansion ; though some
of these things were in their nature personal chattels, supplying
the place of mere moveable utensils and furniture. But it
never was questioned but that buildings let into the soil became
part of the freehold, from the very nature of the thing. This
was decided so long ago as Hil. 17 Ed. 2, 518, in a writ of
waste against a lessee, who had built a house and pulled it down
during his term. And Co. Litt. 53 a, which is to the same pur-
pose, goes further and says, that even the building of such new
house by the tenant is waste ; but that is denied in Lord Darcy
V. Ashwith (a) ; though that also agrees that the letting down
of such new house built by the tenant himself would be waste.
So taking down ^ stone wall, or a partition between two cham-
bers, is waste. 10 Hen. 7, 2, pi. 3. It does not, indeed, appear
by that book, whether those erections had been before made by
the tenant himself : but they were so taken to be by Mead, J.,
in Cooke v. Humphrey (5). All this is confirmed by Lord Coke
at the end of HerlakenderCs Case (c), where it is said to have
been adjudged in C. B. that glass fastened to the windows, or
wainscot to the house, by the lessee, cannot be removed by him :
and that it makes no difference in law whether the fastening of
the latter be by great or little nails, screws or iron put through
the posts or walls (as had been .then of late invented), or in
whatever other manner it was fastened to the posts or walls of
the house. In all these cases the rule as between landlord and
tenant seems to have followed that between heir and executor,
founded upon the reason first mentioned: and no innovation
upon the strict rule seems ever to have been admitted, except
in the case before Lord C. B. Corny ns (d) at Nisi Prius, of the

(a) Hob. 234. (d) Cited in Lawton v. Lawton, 3

(b) Moor, 177. Atk. 13, 16.

1426 ELWES V. MAWK.

cider-mill, which lie held sliould go to the cxccuLor, iiiul not to
the heir ; but upon what particular grounds does not appear:
and the case of Cullint/ v. Tufnell (a), before Lord Ch. .1. Treby^
at Hereford, in 1694, where a barn erected by a tenant upon
pattens and blocks of timber, lying on but not let into the
ground, was holden to l)e removable by the tenant: but even
there he relied on the cuxtoin of the count rij in lavi>nr of the ten-
ant, with reference to which it might be presumeil tliat he and
his landlord liad contracted (/<). The only established excep-
tion (which the plaintiff's counsel admitted was as ohl as the
rule itself) is in favour of trade, with respect to articles an-
nexed to the freehold for the purpose of carrying on trade and
manufactures. In 20 Hen. 7, fo. 13, jd. 24, an heir ])rought
trespass against executors for taking away a furnace fixed to
the freehold with mortar, and the taking was holden tortious.
But it was there said "that if a lessee for years set up sueli a
furnace for his own advantage, or a dyer his vats and vessels to
carry on his l)usiness (^^^ during the W\\\\ he may remove them:
but if he suffer them to be fixed to the land afti-r the end of the
term, then they belong to the lessor; and so of a baker." Then
follows, "It is no waste to remove such things within the term
by any." But this is said to have been against the ojjinions
before mentioned, and to have been doubted in the 42 PM. 3, p.
6, pi. 19, whether it were waste or not. It is clear, therefore,
from the whole of the passage, that the only generally admitted
exception was in favour of traders, which is shown by the ex-
amples of the dyer and baker afiixing vessels pur occupier son
occupation: and that at least it was doubtful whether the same
privilege extended to others affixing to the freehold similar
articles. And the exception is the more remarkable because at
that early period agriculture must have been of much greater
importance to the state than trade. This distinction was con-
tinued in later times. In Poole s Case (d), M. 2 Ann., in an
action on the case by a lessee against the sheriff of Middlesex,
who had taken in execution the vats, coppers, tables, partitions,
and pavement, &c., of an under lessee, a soap-boiler, which he
had put up as fixtures for the convenience of his trade. Lord C.
J. Rolt held that during the term the soap-boiler might well re-

(ffl) Bull. N. P. 34. (c) The words in the original are

(6) See Wigglesworth v. Dallison, '' pur occnpier son occupation."
ante, vol. i. et notas. (d) Salk. 368.

ELWES V. MA WE. 1427

move the vats set up in relation to trade, by common law ; but
that there was a difference between what he did to cany on his
trade, and what he did to complete the house ; as hearths and
chimney-pieces ; which he held not removable. The next case
was Cave v. Cave (a), in 1705, where the Lord Keeper held that
not only wainscot, but pictures and glasses put up in the place
of wainscot, should go to the heir and not to the executor, to
prevent the house being disfigured. Then followed Laivton v.
Laivton (J), where it was decreed by Lord Hardiviche, C, that a
fire-engnie erected for the benefit of a colliery by the tenant for
life should be considered as personal estate, and go to liis ex-
ecutor, and not to the remainderman, in favour of creditors.
But there it was proved to be customary to move such an
engine ; that in building the shed for its security lioles were left
for the ends of the timber to make it more commodious for re-
moval ; and that it was very capable of being removed. The
evidence relied on by the other side was, that it could not be
removed without tearing up the soil and destroying the hrick-
loorh. But Lord Hardivicke considered the brickwork there as
a mere accessory to the engine, which in its own nature was a
mere personal moveable chattel. One reason, he said, which
weighed with him was, that it was a mixed case, between enjoy-
ing the profits of the land and carrying on a species of trade ;
and considering it in that light, it came near the instances of
furnaces and coppers in brewhouses. That decision was in
1743. In Ex parte Quincey (c), in 1750, where the principal
question was whether the utensils of a brewhouse passed by a
mortgage of the brewhouse with the appurtenances ; it is said
that a tenant may, during the term, take away chimney-pieces
and even ivainscot ; but the latter is observed to be a very
strono- case. The same was before said in Laivton v. Lawton,
with this difference, that it was there said of wainscot, fixed
only by screws and of marble chimney-pieces. This opinion may
have proceeded, as it did in Beck v. Eebow (d), upon the con-
sideration that matters of this sort were merely ornamental fur-
niture, and not necessary to the enjoyment of the freehold.
The case of Lord Dudley v. Lord Ward (e), in 1750, was like
that of Lawton v. Lawton, on the authority of which it was de-

(a) 2 Vera. 508. (f?) 1 P- Wms. 94.

(6) 3 Atk. 13. (e) Ambl. 113, and Bull. N. P. 34.

1428 ELWES V. MA WE.

cided. There Lord ILtrdwicke recognised the general rule,
with the single exception, as between landhnd and tenant, that
fixtures annexed by the latter for the sake of trade might Ik- re-
moved. There, too, the fire-engine was eoJisidered as the prin-
cipal, and the building erected over to preserve it ;us the mere
accessory : and the colliery itself as in part the carrying on of a
trade. In Lawton v. Salmon, E. 22 Geo. 3, B. R. (^a), salt pans
were holden to go to the heir and not to the executor: and
though Lord Mansfield said that the rule had been relaxeil as
between landlord and tenant, tenant for life and remainderman,
in respect of things put \\\) by the tenant in jmssession ; still he
conlined the relaxation to things so jilVixcd for the benefit of
trade. And he there alluded to the case of the cider-mill
(doubtingly) as standing alone, and not piinted at large. Then
the case of Dean v. Allalle// (/*), sittings after Kaster, 3l> (ieo.
3, was a ease where two sheds called Dutch hamx, wliii li liad
been erected by the tenant during iiis term were removed by
him: and being sued on his covenant, by which he undertook
to leave all buildings which then were, or should he erected on
the premises during the term in repair. Lord Kent/on, at Nisi
Prius, held that buildings of that description were not included;
and said that the law would make the most favourable construc-
tion for the tenant where he had made necessary and useful erec-
tions/'or the benefit of his trade or vianvfacture. Of what precise
description the buildings there were does not a[)pear ; possibly
not affixed to the ground (f), at least not such parts as w<'re
removed. If not, the case amounts to not more than that of
Penton v. Rohart ((/), where a varnish-house of wood, which had
been erected on a brick foundation by the tenant/or the purpose
of carryiiig on his trade was removed by him. But it did not
appear there that the foundation was removed, but only the
superstructure of tvood, which had been brought by the tenant
from another place, where he had before carried on his business.
Lord Kenyon, indeed, there laid stress on the instances of gar-
deners and nurserymen in the neighbourhood of the metropolis
erecting green-houses, &c., which he considered that they would

(«) Cited in a note to Fitzherbert v. (c) Vide post, what account was

Shaw, 1 H. Blac. 259. Tlie principal given of this case in the arguments

case turned on a particular agree- of the defendant's counsel,

ment. (d) 2 East, 88.

(b) 3 Espiu. Ni. Pri. Cas. 11.

ELWES V. MAWE. 1429

be at liberty to remove. Whether that be done under particu-
lar aoreements or not does not appear : but supposing the law
would imply an exception in favour of tenants of that descrip-
tion, it would only be upon the ground of considering them as
carrying on a species of trade ; the very nature of their occupa-
tion and of the letting, being to enable them to disannex even
trees from the land (a). But none of the cases have gone the
length now contended for : and the very grounds on which ex-
ceptions have been made from the general rule preclude the
present case. Erections of this sort are not in their nature tem-
porary or moveable, but are calculated solely for the enjoyment
of the land : the expense of erecting them is great, and their
value is great on the spot, but of trifling consideration when re-
moved : the injury of their removal, therefore, is much greater
to the landlord than the benefit of the materials when removed
is to the tenant. If the exception were extended to buildings
erected for the purposes of agriculture, it would be as extensive
as the rule itself, and would therefore destroy it. The sole ob-
ject of such erections is for the purpose of enjoying the produce
of the land ; the land therefore is the principal, and the build-
ing the accessory to the land. This distinguishes it essentially
from buildings erected for engines or machinery used in trade,
where the personal chattel is the principal. No other line than
this can be drawn without overthrowing all the authorities.

For the defendant it was contended that the old rule of law
had been gradually relaxed between landlord and tenant,
though not so much between tenant for life and remainder-
man, or between heir and executor. The object has been to
encourage tenants to lay out their money in the improvement
of the premises, and in making their industry as productive as
possible, which is for the benefit of the state as well as the
individuals, and applies at least as strongly to tenants in
husbandry as in trade. Agriculture, in the improved state in
which it is now carried on, is in itself a trade ; it requires a
much larger capital than formerly, and the use of more
expensive implements and machinery. Without the aid of

(rt) Lawrence, J., on the first argu- &c., as is usual in sucii cases. But

ment intimated, that if ground were he expressed a wish to be informed

let expressly for nursery ground it of the usual terms of the leases

might be considered as implied in the under which such grounds were

terms of the contract, that it was to holden in the neighbourhood of the

be used for taking up young trees, metropolis.

14;J0 ELWKS V. MAWK.

luodcin iinpjovL'incnts, the land caniiot Ix* made so productive
as it otlierwise may be, uov the produce so well prenerved and
brousrlit to market. lUil uidess the tenant is entitled to take
away with him at the end of his term, or have a cnmiKMisation
in value tor buildings like these in (question, erected in such
a niaiiMcr as to \hi capable of l)eing removed at pleiwure niid
set up (Jii any other farm, he will not Ik* at the expense of
erecting them at all ; and thcreforj? though he, and through
him the jiiiltlif, will .siilTtT, \vi tin- landlord will not In* tiio
better tor the ri>,'ht which he now claims. This is nt) ({Uestion
whether permanent additions or improvements made by a
tenant to an old dwellini^-house or out-i>uildin^, or even new
ones of that sort erected by him for his personal accr>mmodation,
are to be nnnoved at the end of the term; for not even pei-sons
renting i)remises for the purpose of carry injf on trades have
any such i)rivilej^e: but whether building .so ere<'te«l for the
.sole purpose and convenienct' of i-arryint; on the farnu that is,
of turnint,' to the best account the capital and industrv of the
faiiuer in his trade oi business, may not U- removed bv him.
Tile mateiials of which tin* buildinj^s ar«' comjtoscd cannot vary
the law, but the objects and interests of the persons concerneil.
II ill the ca.se Dean v. Allallei/ (a), the tenant wjus entitled to
remove the buildiiiL^s called Dntfh fmniH, the same ruh' will
api)ly to the buildini,^ in (luestit)n, which are sus mu(d» calcu-
lated tor removal. For in that case (as appears from the .MS.
note of one of the coun.sel in the cau.se), the sheds erected
"had a foundation of brick in the ground, and uprights fixed
in and rising from the brickwork, and supporting tin- roof, which
"vvas composed of tiles, and the sidi-s oj)en," as iti the present
case. If the exception be conlined to erections fur the InMiefit
of trade, Lord Ketu/on in that case considered the JJntrh barns
as coming within that description. This is consonant to the
opinion delivered by the same learned judge in Penton v.
Rohart (b). It is true that was the case of a varninh-hoi{sp ;
but it is clear that his lordship's opinion way founded on the
extension of the exception in the case of landlord and tenant
generally; for in the instances put by him in illustration of his
opinion, are cases of gardeners and nurserymen, whose profits
are derived out of the immediate produce of the land : and the
buildings now in question are no more annexed to the soil than

(rt) 3 Espin. Ni. Pri. Cas. 11. and MS. (6) 2 East, 88.

ELWES V. MAWE. 1431

the varnish-house there was, which was on a foundation of
brick, or than the hothouses and greenliouses of the persons
alluded to. But the argument does not rest alone on very
modern cases, but is strongly supported by the decisions of
Lord Hardu'icke in the cases of Laivton v. Lawtoji (a) and Lord
Dudley v. Lord Ward (J). There, even as between tenants
for life or in tail and the remaindermen, the executors of the
former were holden entitled to the fire-engines of collieries ;
buildings which must in their very nature be annexed to the
soil, and without which the profits of the land, viz., the coal,
could not be taken. Those were, indeed, said to be mixed
cases between taking the profit of land and carrying on a trade ;
but wherefore mixed does not so plainly appear. So the case
of the cider-mill is directly in point : that is as essential to the
enjoyment of the land in that particular species of produce
out of which the cider is to be made, as barns and other
buildings are to the enjoyment of arable, or beast-liouses of
pasture-land. That case was much stronger than what is now
contended for ; the question arising there between the heir and
executor, where it may be admitted that the old rule has pre-
vailed much stricter. All the cases therefore in the books
between persons standing in that relation may well be laid out
of the question, as they turn upon the presumed intention of
the ancestor or testator in favour of the heir, that the inheri-
tance should descend to him entire and undefaced. But the
case of Culling v. Tufnell (<?), before Lord Ch. J. Trehy, which
is in point, was between landlord and tenant. That Avas the
case of a ham removed by the tenant : and though the founda-
tions Avere not dug into the ground, yet its very weight must
have sunk it in some measure below the surface of the soil. It
is true that case was put by him on the ground of the custom
of the country, but Buller J. in citing it, observes that now,
without any custom, it would be determined in favour of the
tenant without any difficulty ; for that the old rule had been
relaxed as between landlord and tenant, &c., though still
preserved as between heir and executor. No distinction is
there hinted at between trade and agriculture. In Fitzlierhert
V. Shaiv (f?) the question, it is true, turned at last on the agree-
ment; but Gould, J., was decidedly of opinion at the trial,

(a) 3 Atk. 13. (c) Bull. N. P. 34.

(&) Ambl. 113. \d) 1 H. Black. 258.

1432 ?:lwi:.s v. mawk.

that if the tenant had removed the huiUlin^'s (hiring' the term, ho
would liave been justifu'd in sodoin^; and thiMv soiiif of the
tliinti^s ivnioved were a sIiimI built nn hrirkwork, and somi' po»tu
and raih erected In tlie tenant, all which ninsi have been let
into the ijfroniMl, and were adapted to [»ui|H»se.s of af^'rii-ulture.
Upon the whole, ihey contended that the oidy line to l>e drawn
from all the books wjis, that whatever buildinjjs wt-re erected
by a tenant (i)e the materials what they may, nr however
placed in or upon the ground), for tlu; imme<liate purposes of
his trade, or for the more advantaj^eous takinij or improvinjj
the profits of his farm, he may remove them again, provided he
leave the premises on his (putting jus he found them. Acconl-
ing to this rule no injury could ensue to the landlord, wliose
property would, on the e«)ntrary, l)t^ eventually l»enetited l)y the
belter cultivation of it, while the public woidd derive an im-
mediate advantage from the encouragement alToidtd to the
capital and industry of the tenant.

( 'iir. ii'/r. rttlt.

Lord Ullenhorouijh, C. .1., now delivered the opinion of the
Court. This was an action upon the ea.se in the nature of
waste by a landlord, the reversioner in fee, against his late
tenant, who had held under a term for twenty-one yeaix a farm
consisting of a messuage and lands, out-houses, and barns, «\:c.,
thereto belonging, and who, as the case reserved stateil, during
the term and about litti-en years iK'fore its expiration, ere<te<I
at his own expense a heant-hntige, a carpenter t> nhop, a fuel-honxt.,
a carf-housi\ a pum/i-houxc and fold-yard. The buildings were
of brick and mortar, and tiled, and the fountlatKinx of them were
about a foot and a half deep in the ground. The rarpentrrft
shop was closed in, and the other Iniildings were open to the
howt ?i\$i supported hif hrirk $\\\ay6. The fohl-i/anl tvall wuh of
brick and mortar, atid its foumlatiou was in the i/round. The de-
fendant, previous to the expiration of his lease, pulled down the
erections, dug up the foundations, and carried away the mate-
rials; leaving/ the premises in the same xtate ax when he entered
upon them. The case further stated that these erections were
necessari/ and convenient for the occupation of the farm, whii-h
could not be well managed without them. And the (piestion
for the opinion of the court was, Whether the defendant had a
right to take away these erections ? Upon a full consideration

BLWES V. MAWE. 1433

of all the cases cited upon this and the former argument, which
are indeed nearly all that the books afford materially relative
to the subject, we are all of the opinion that the defendant had
not a right to take away these erections.

Questions respecting the right to what are ordinarily called
fixtures, principally arise between three classes of persons. 1st.
Between different descriptions of representatives of the same
owner of the inheritance ; viz.^ between his heir and executor.
In this first case, i.e., as between heir and executor, the rule ob-
tains with the most rigour in favour of the inheritance, and
against the right to cUsannex therefrom, and to consider as a
j^ersonal chattel, anything which has been affixed thereto.
2ndly, Between the executors of tenant for life or in tail., and the
remainder7nan or reversioner ; in which case the right to fixtures
is considered more favourably for executors than in the preced-
ing case between heir and executor. The third case, and that
in which the greatest latitude and indulgence has always been
allowed in favour of the claim to having any particular articles
considered as personal chattels as against the claimant in re-
spect of freehold or inheritance, is the case between landlord
and tenant.

But the general rule on this subject is that which obtains in
the first mentioned case, i.e.., between heir and executor ; and
that rule (as found in the Year-book, 17 E. 2, p. 518, and laid
down at the close of lierlakenden s Case., 4 Co. 64, in Co. Litt.
53 ; in Cooke v. Humphrey., Moore, 177, and in Lord Darcy v.
Asquith, Hob. 234, in the part cited by mj^ brother Vaughan,
and in other cases), is, that where a lessee, having annexed any-
thing to the freehold during his term, afterwards takes it away,
it is waste. But this rule at a very early period had several
exceptions attempted to be engrafted upon it, and which were
at last effectually engrafted upon it, in favour of trade and
of those vessels and utensils which are immediately subservient
to the purposes of trade. In the Year-book, 42 Edw. 3, 6, the
right of the tenant to remove a furnace erected b}^ him during
his term is doubted and adjourned. In the Year-book of the 20
Hen. 7, 13 a & b, which was the case of trespass against execu-
tors for removing a furnace fixed with mortar by their testator,
and annexed to the freehold, and which was holden to be
wrongfully done, it is laid down, that '• if a lessee for years
make a furnace for his advantage, or a dyer make his vats or

14li4 Kl.WKS \. MAWK.

vessels to occupy his ocnifuition, diirin;/ hi» term hi* limy remove
tlu'iii : but if he suffer them to be fixed to the earth utter the tertn^
then they belon<i to the lemior. And ho of a Uikor. v\iul it in not
waste to remove suih thing's witliin the term hy Home : uiul thin
shall he a^'aiiist the opinions aforesai<l." But tlie ruh- in this
extent in favour of ten;inls is douhltMl iifterwanls in -1 Urn. 7,
27, and niun»\ve«l then-, hy all(»win^' that the lesMee for yeiiro
could only renntve, within the term, iWiw^ fijed to the ijrouiuK
and not to the walU of the prineipal imikling. However, in pro-
cess of time the rule in favour of tiie ri^dit in tlie tenant to
remove utenxiln set up in relation to trade l>eeame fully estal>-
lished : and ai^eordin^dy we fnul Lord JLdt, in Poole\ Cane^
Sulk. )i«>H, lavinij down (in the instance of a HoaiHlH>iler, an
untlt r-lt'iiaiit, whose vats, coppers, «S:c., fixed, hatl Ihh'U taken in
execution, and «»n which account the lirst lessci' ija<l hrou^dit an
action a«,'ainst the sheritT), that duriny the term the nnajt-hoiler
niit/ht well remove the vain he itet up in relation to trade ; and tliat
he niii,dit do it hy the common law, and not hy virtue of any
special custom, in /aeon r of trade and to eneouraye indnnfrif : hut
that after the term, they l)eeame a gift in law to him in rever-
sion, and were not removahle. He adds, that there was a «Hf-
ference between what the soap-boiler did /" '•//;•/•// on hi» trade,
and what he did to comi)lete hi» house, as hearthx and chimney-
pieces, which he held n<>l removable. The indul«;ence in fav»)ur
of the tenant fnr years duriuLT the term, has l>een since carried
still further, and he has been idlowed t»» carry away matters of
ornament, as ornamental marble chimney-pieces, pier-j;fhiM.seH,
hauij^inos, wainscot lixed only by screws, and the like. Berk v.
Rebow, 1 1*. Wms. m ; Ex Parte i^hiineey, 1 Atk. 477; and
Lau'fon v. Lawton, 3 Atk. 18. liut no adjudt^ed case has yet
gone the length of establishing that buildings subservient to
purposes of agriculture, as distinguished from those of trade,
have been removable by an executor of tenant for life, nor
by the tenant himself who built them, during his term.

In deciding whether a particular fixed instrument, machine,
or even building, should be considered as removable by the
executor, as between him and the heir, the Court, in the three
principal cases on this subject (viz., Lawton v. Lawton, 3 Atk.
13, which was a case of a fire-enyine to work a colliery erected hy
tenant for life: Lord Dudley v. Lord Ward, Ambler, 113, which
was also the case of a fire-enyine to ivork a colliery erected hy

ELWES V. MAWE. 1435

tenant for life (these two cases before Lord Hanhvicke') ; and
Lawton^ executor, v. /Salmon, E. 22 G. 3, 1 H. Black. 259, w
7iotis, before Lord Mansfield ; which was the case of salt pans,
and which came on in the shape of an action of trover brought
for the salt pans by the executor against the tenant of the heir
at law), may be considered as having decided mainly on this
ground, that where the fixed instrument, engine, or utensil
(and the building covering the same falls within the same
principle), was an accessory to a matter of a personal nature,
that it should be itself considered as personalty. The fire-
eiigine in the cases in 3 Atk. and Ambler, was an accessory to
the carrying on the trade of getting and vending coals ; a
matter of a personal nature. Lord Hardivicke says, in the case
in Ambler, " A colliery is not only an enjoyment of the estate,
hut in part carrying on a traded And in the case in 3 Atk. he
says, " One reason that weighs with me is its being a mixed
case, between enjoying the profits of the lands, and carrying on
a species of trade : and considering it in this light, it conies very
near the instances in hrew-houses, ^c, of furnaces and coppers.'''*
Upon the same principle. Lord C. B. Comyns may be considered
as having decided the case of the cider-mill, i.e., as a mixed case
between enjoying the profits of the land and carrying on a
species of trade ; and as considering the cider-mill as properly
an accessory to the trade of making cider.

In the case of the salt pans, Lord Mansfield does not seem to
have considered them as accessory to the carrying on a trade ;
but as merely the means of enjoying the benefit of the inheri-
tance. He says, " the salt spring is a valuable inheritance, but
no profit arises from it unless there be a salt work ; which
consists of a building, &c., for the purpose of containing the
pans, &c., which are fixed to the ground. The inheritance
cannot he enjoyed without them. They are accessories necessary
to the enjoyment of the principal. The oivner erected them for
the benefit of the inheritance.'^ Upon this principle he con-
sidered them as belonging to the heir, as parcel of the inheri-
tance, for the enjoyment of which they were made, and not as
belonging to the executor, as the means or instrument of
carrying on a trade. If, however, he had even considered
them as belonging to the executor, as utensils of trade, or as
being removable by the tenant, on the ground of their being
such utensils of trade ; still it would not have affected the

14;)G KI.WKS v. MAWK.

question now before the Court, whiili is tlie rij,'ht of » truant
for mere aifriniltural purposes to remove buiUliii^ !ixe(l to the
freehold, which were constructed hy him for the ordinary pur-
poses of husi>iin(hy, and connecte<l with no description of trade
whatsoever : and to wliich description of huihlinp* no cus«
(except the Nisi I'rius case of Ueitn v. Allnlhif, U'hjre I^ord
Kenifon^ and which (hd not un(U'ri,'o the suhHecpn'nt review of
liimself and the rest of the Court), hiis yet extende«l tlie
inthilt?enee aUowed to tenants in respect to huihlini]^ for tho
purposes of trade. In the case in liuUer's Nisi Prius, .*J4, of
CulliiKjw Tiifnell, before Lord Ch. .1. T/vAy, at Nisi Prius, he
is stated to liave hohlen thai the tenant wh«» liad ere«'ted a
ixtrn upon the premises, and put it upon pattenn ami hlork* of
tlinlier Ij/int/ about the i/ri>unil, hut not fixed in or /" the iirinin>l,
mi<;ht l>y the custom of tiie country tak«' them aw.iy at the
end of his term. To l)e sure \\v mii,'ht, and tiiat without any
custom; for the terms of tlu- stati'mcnt exchide them from
being considerctl as fij-tarex : "they were not fired in or to the
(/rouHil.^' In the case of Fitzherhert v. Shaw, I II. lUack. 2">8,
we have only the opinion of a very learned Judge indeed, Mr.
Justice Gould, of what would have heen the right of the teiumt^
as to the taking away a aheil built on brick-work, and some po»t»
and rails which he had erected, if the tenant had done .so
during the term : but, as the term was put an end to by a new
ciuitract, the (luestion what the tenant could have done in
virtue »)f his right under the old term, if it had continued,
could never have come judirially i>efore him at Nisi I'rius:
and, when that (piestion was otfered to Ik.^ argueil in the Court
above, the counsel were stopped, as the (piestion w;us excluded
by the new agreement. As to the case of Penton v. Robart, 2
East, 88, it was the case of a varnish-houae, witii a brick foun-
dation let into the ground, of which the woodwork had been
removed from another j)lace, where the defendant lja<l carried
on his trade with it. It was a buildinif for the purpose of
trade ; and the tenant was entitled to the same indulgence in
that case which, in the cases already considered, had been
allowed to other buildings for the purposes of trade ; as fur-
naces, vats, coppers, engines, and the like. And though Lord
Keni/on, after putting the case upon the ground of the leaning
which obtains in modern times in favour of the interests of
trade, upon which ground it might be properly supported,

ELWES V. MAWE. 1437

goes further, and extends the indulgence of the hxw to the
erection of greenhouses and hothouses by nurserymen, and,
indeed, by implication, to buildings l)y all other tenants of
lands ; there certainly exists no decided case, and, I believe,
no recognised opinion or practice on either side of Westminster
Hall, to warrant such an extension. The Nisi Prius case of
Dean v. Allalley (reported in Mr. WoodfaWs book, p. 207, and
Mr. Espinasse s, 2 vol. 11), is a case of the erection and removal
by the tenant of two sheds called Dutch hams, which were, I
will assume, unquestionably fixtures. Lord Kcnyon says, " The
law will make the most favourable construction for the tenant
where he has made necessary and useful erections for the benefit
of his trade or manufacture^ and which enable him to carry it
on with more advantage. It has been so holden in the case of
cider-mills, and other cases ; and I shall not narrow the law,
but hold erections of this sort, made for the henefit of trade, or
constructed as the present, to be removable at the end of the
term." Lord Kenyon here uniformly mentions the henefit of
trade, as if it were a building subservient to some purposes of
trade ; and never mentions agriculture, for the purposes of
which it was erected. He certainly seems, however, to have
thought that buildings erected by tenants for the purposes of
farming, were, or rather ought to be, governed by the same rules
which had been so long judicially holden to apply in the case
of buildings for the purposes of trade. But the case of
buildings for trade has been always p>^i ^^^^^^ recogyiised as a
known allowed exception from the general rule which obtains
as to other buildings ; and the circumstance of its being so
treated and considered establishes the existence of the general
rule to Avhich it is considered as an exception. To hold other-
wise, and to extend the rule in favour of tenants to the lati-
tude contended for by the defendant, would be, as appears
to me, to introduce a dangerous innovation into the relative
state of rights and interests holden to subsist between landlords
and tenants. But its danger or probable mischief is not so
properly a consideration • for a court of law, as whether the
adoption of such a doctrine would be an innovation at all:
and, being of opinion that it would be so, and contrary to the
uniform current of legal authorities on the subject, we feel
ourselves, in conformity to and in support of those authorities,

1438 i.Lui:> \. MAWi;.

obli<,'e(l to proMouce tli.il tin- (Uti'ntlaiit lia«l no rij^ht to uku
awiiy the cifctioiis staU-tl aiul .1. >. i il».-t| in ihi.s cnim'.

J'uttea to the plaintiff.

Till", won! hjrfiin , it lias hvv» rpmarknl ■•> u u-.irnni author, U u^««i ■■» illf-
fi'iTiit writers to t'XpiVH.sUlrt\T»'iit iin-ntiliiUH {Hw Shfen v. /.'(ViiV.S M- 4 W.
17'j, wluri- it was licltl timt n/tT rrr>li<-t It mljjlu oven \k' iiMiuiiKtl that thrjr
were artlrlt-s for wlilili troviT woiilil III- , *vv Itnlhnt x M'httlrnt, ;i «j. II 1»»;|.
Ill llnllin V. Uitndrr, I ( '. M. &. I{. '-'7«".. wImti' \\wtv wa>» an a«-tloii for ll\tiirt'«
l)tir;;aiMc(l and sold, and sold nnd dcllvcn-il. tlu' court <tald. that "the noril
llxtiin-s has a*-i|iiirrd tin- |K-(Miliur ini-unlnK of chattels which have Im-co
uniu-xcd to till' freehold, hut which are n-movahU' at the will of the fH^nMin
who annexed thcin." And the court, lu that cii«e, thouuht that neither were
they ijiiiiih, propi-rly speakliiic (see I'lnrit v. //m/im#t. II M A W. 2-|;»; Tripp
V. Annidiin, 4 M & NV. M7 ; [I^e v. liit»krU, \ g. II 1>. TiJO. aiitl /'iNNoy v.
^'>■((v, 11) Ch. I). i:(J), nor (lid a sale of them trnntferany Intereit lu lanUa
within the iiieanin^ of the fourth section of the Statute of Frauds.

It seems dllllcult. however, to ii.se the tenu " llxtiiriHt " Invarlahly In the
above sense without priHiucliii; some confusion; for If mich Im' tlie unlveptnl
meanlii;; of the wonl, the sjiiiie thlnus would In* jtjiurr*. its iH'twtt'n iionie
persons, and not fixtures as iM'tween i»lhep» It tweiu* In-tler. therffun*. for
the purposes of this note, to use the word "jtjtHn" In tiwt which ap|N*iin«
to he Us natural and most ohvlons sense, riz., nuffthing HHHrsnl tn thr frrf
huia.

Hy the expression unnffil ti> fhr frrrh<>lil. Is niennt fnstenetl to, or con-
nected with It : mere Juxtn-po>itlon, or the laylni; of nn oliject. however
heavy, on the freehold, iloes not amount to itnnrj<iti'>n. Thus In the ca.s«
clteil In the text from Huller's Nhl I'rlus. ;U, of I'ltUimj v. Tu/nrH, when* a
tenant hud erected a Imrn <>n jttitlena ninl hhtrka «»/ timltrr lyimj uh thr ijnuiHil,
but Hilt Jixid in, or tu thr (jrtiuml. It was heltl that he niUlit take thein away at
the end of his term. This was .said In Iliiller to have Imvij hy the custom of
the country; but the Lord ('. J. remarks In the text, •• To Ih> sure hi> mli;ht,
and that witliout any custom; /<»r thf tmnit «»/ (A** utalrmmt rxrhnU thftn fttnn
lii'iiKj coiisiilriiil Its rixttiri'M. Thftj irrrf not jtj-rtl in, nr in, Ihf ijnmmt." See
Anthony v. Ilanrys and Ilanlintj, H Hln>{. IHIJ; Ilnrn v. H»tkrr,'si Fast, 215;
D<tvis V. Jonis, 2 H. it A. H;.') ; and W'ili.ihnir v. t'ultnll. I K. & U. »'.74, where
it was held that a {jranary restinj; upon staddles, which were hullt Into the
jrround, but not attached to them except hy its weight, wa.s not a fixture In
the ordinary sense of the word, so as to pass under the tenn •• llxtures" In
a conveyance.

In the case of Hcllmrill v. KustirDi,,!, «; Kxch. 'J'J't, a question arose as to
whether certain machinery used for mannfacturln;; purposes was attached to
the freehold so as to be exempt from distress for rent. The machines con-
sisted of "mules" used for spinnins; cotton, fixed si'unc by means of screws
into the wooden floors of the mill, and some by bein^ sunk into the stone
flooring and secured by molten lead. The court held that they had never
become part of the freehold, and I'arke, B.. In dcllverin}; the judi;ment of
the court said, "they were attached slightly so as to be capable of removal
without the least injury to the fabric of the building or to theraselvea ; and

ELWES V. MAWE. 1439

the object and purpose of their annexation was not to improve the inheri-
tance but merely to render the machines steadier and more capable of con-
venient use as chattels." See also Huntley v. Biissell, 13 Q. B. 572, [and
Waterfall v. Penistone. 6 E. & B. 876, in which case the court acted upon the
rule laid down in Hellaioell v. Eastwood. In the judgment in Mather v. Fraser,
2 Kay & J. 536, Wood, V.-C, fell into the mistake of imagining that the rea-
soning of Parlie, B., in Hellawdl v. Eastioood, was unnecessary because, as
the Vice-Chancellor supposed, tenants' fixtures are distrainable for rent : a
not unnatural eri'or.

In Walmsley v. Milne, 7 C. B. N. S. 115, the owner of land mortgaged it,
and afterwards erected buildings on it, to which, for the more convenient
use of the premises in his business, he affixed a steam-engine and boiler, a
hay-cutter, and corn-crusher, and a pair of grinding-stones. It appeared that
the lower grinding-stone was boxed on to the floor, and that the steam-engine
and other articles (except the boiler) were fastened by bolts and nuts to the
walls and floors, but were all capable of being removed without injury either
to themselves or to the premises. Under these circumstances, the court held
that all the disputed articles formed part of the freehold, and could not be
claimed by the assignees in bankruptcy of the mortgagor, even although if
the relation of landlord and tenant had existed, these articles might have
been removed during the term. " Without expressing any opinion on Bella-
icell V. Kastvviod," said the court, "it is sufficient to observe that, assuming
it to be well decided, it is no authority for holding that the disputed articles
in the case at bar are not fixtures forming part of the freehold; for we are
of opinion, as a matter of fact, that theij icere all firmly annexed to the free-
hold f,r the purpose of improving the inheritance and not for any temporary
purpose.''~\

There are indeed some cases of what is called constructive annexation, i.e.,
cases in which an object, really a chattel, is, for certain purposes annexed to
the freehold. Tluis in fJford's Case, 11 Co. 50, we find the law laid down as
follows: — " It is resolved in 14 H. 8, 25 b, in Wistoio's Case, that if a man
has a horse-mill, and the miller takes the mill-stone out of the raid, to the
intent to pick it to grind the better, although it is actually severed from the
mill, yet it remains parcel of the mill as if it had always been lying upon
the other stone, and by consequence, by lease, or conveyance of the mill,
shall pass Avith it. [See the judgment in Walmsley v. Milne, 7 C. B. N. S.
138.] So too of doors, windows, rings, &c. The same law of keys, though
they are distinct tilings, they shall pass with the house."

A chattel placed by its owner upon the freehold of another, but severable
from it, as a door wliich may be lifted from its hinges, or a sliding fender
used to prevent the escape of water from a mill-stream, does not necessarily
become part of the freehold. It is matter of evidence whether by agreement
it does not remain the property of the original owner. Wood v. Hewitt, 8 Q. B.
913 ; [and the ordinary presumption may be rebutted by circumstances show-
ing the real intention of the act, Lnvraster v. Eve, 5 C. B. N. S. 717.]

Such too are heirlooms; see 11 Vin. Abr. 167; Lord Petre v. Heneage, 12
Mod. 520; 1 L. Raym. 728; Piisey v. Puspy, 1 Vern. 273; charters, and evi-
dences attendant on the inheritance (see Lord v. Wardle, 3 Bing. N. C. 680),
and the deer and fish in a man's park or fish-pond. See Liford's Case, uhi
supra, Shep. Touch. 470.

Yet in these cases of constructive annexation, the articles constructively
annexed do not acquire all the incidents of realty ; for instance, trover may

1440 KLVVKS V. MAWK.

be brought for th<in like other chattels. Yet It is lalil down by LonI Toke.
that " if a man t)e seised of a lioiise, and possessed of tlivers heirl<MMns, tliat
by custom liave }i<me witli tiie Ijouse, and by Ids will devlsclh away the heir-
looms, this devise is void." Co. Lltt. 185 b; see U'oodfson's Lee. :JMO; Coin.
Dlsj. liii'iis, II.; Ilar.i^rave's note, Co. Lltt. 18 b; 1 P. Wms. 7110; for the cuu-
tom vests the property in the lu-lr instantly on tin- testator's death, whereiw
the will has no etl'ect till the tlrst moment afterwards.

This seems the proper place for ineiitioinn*; that, in calcnlatinu the rate-
able value of property, machinery attached to It ounht to be taken Into ac-
count without considering whether It be real or personal estate »o a.s to Imj
liable to a distress or a 11. fa., or whether It woidd belonu to the lamlloni or
tenant, heir or executor. A', v. (iuest, 7 A. & K. 'Jiil. [AV*/. v. Inhni'tinutH nf
Lee, L. U. 1 Q. K. 241, Laimjy. Jiishnpir^nrinoiith, Mi. B. D. '-".»'.», and '///«/•
Buih'r Works Co. v. Ocrsi-ers of L»nij H>i,l'nt, is c^. 11. 1). Hi, where the last-
mentioned case was followed, and ('Imllfij v. I1V.W Ilum, :52 L. T. 4m(;. was
explained upon the facts] See, however. /{<>', inunn v. Lrtinn/il, 7 M. Jt ^V.
48, where the value of steam power communicated from an adjacmt engine
by a shaft revolving on the prendses was excluded in assessing tlieir tloublc
value, under st. 4 G. 2, cap. 28.

Setting these cases of constnwtive annexation, which are comparatively
unimportant, and on which few practical cpiestions arise, ctunpletely out of
view; the general rule is, that, to constitute an article aHxtur)\ ir., part of
the realty, it must be actually aruu-xed thereto; and f mnrt-rsn, whatever Is
so annexed becomes part of the realty, and the person who wa.s the owner
of it, when a chattel, loses his projjcrty In it, which immediately vests In
the owner of the soil. Quii-(iHiil iihintntnr solit si>h> r,;lit. See Co. Litt. .'»:» a;
Deardi'ii v. Entjis. ."> M. & VV. 11 ; and the judgment of Tarke, H., in .\tinnhiiU
V. Lloyd, 2 M. & W. 450. This Is the general rule, but there are ca.ses In
which things annexed to the freehold may be disannexed and carried away
by some person claindng a property in them as against the owner of the
freehold. It is as a leading authority on questions of this sort that the case
reported in the text is chietly celebrated.

Lord Elleuborough, as will have been seen, divides these questions into
three classes.

1. Between heir and executor.

2. Between executor and remainderman, or reversioner.

3. Between landlord and tenant.

We will consider these, and one or two others not noticed in the text,
beginning with the most extensive class, viz., that of questions arising
between landlord and tenant.

1. The general rule governing tliis subject is, that the tenant, if lie have
affixed anything to the frceliold during his term, cannot again remove it
without the consent of his landlord. See Co. Litt. 53 a, [and the judgment
of Kindersle}', V.-C, in Gibson v. The Hammersmith liailirai/ Co., :i2 L. .1.
Chan. 337]. But, inasmuch as a tenant for years was not punishable for
waste, before the statute of Gloucester, neither the rule nor its exceptions
could have been of much consequence previous to that period. After the
passing of that Act, questions between landlord and tenant occasionally
arose in actions of waste, and an opinion was soon expressed by the court,
that a lessee engaged in trade and who had set up fixtures for the purpose of
carrying that trade on advantageously, had, in some cases, a right to remove
them at the expiration of his term.

ELWES V. MAWE. 1441

This seems to have been mooted in Year-book, 42 E. 3, fo. 6, pi. 19 ; but
is flrst expressly laid dowa in 20 H. 7, fo. 13, pi. 24, as follows : " Si le lessee
pur ansfait ascun furneis pur sun avantage, on dier fait des fats et vaissels pur
occupier son occupation, durant le terme il pent remuer eux. Mes s'il souffert
eux etre fixes al terre apres le fin del' terme, donq ils appent aV lessor. Et sic
d'un baker. Et n'est ascun Waste ne remuer tids choses deins le terme." In
this case not only was the exception in favour of traders' fixtures pointed
out, but also, as will have been seen, the limitation in point of time which
still prevails, and which obliges a tenant who has a right to remove fixtures,
to do so during his term. Mr. Amos, in his valuable work, contends with
much ingenuity, that this case establishes an exception in favour of other
fixtures set up by lessees for years, besides trading fixtures, and he argues
that the words si le lessee a fait ascun fiirneis pur son avantage, must be taken
to mean, if the lessee have set up any furnace for his pleasure : and he cites
a book entitled " Un abridgement de touts h's ans da Roy Henri le Sept," where
the words ''pur son plesure" are substituted for "p?<r son avantage." But
this abridgment is scarcely to be relied on, for it omits the subsequent
words ^Hc occupier son occupation, which are very important to the question
mooted by Mr. Amos. There certainly appears to be some improbability in
the idea of the lessee having put up a furnace in his house for pleasure.
Besides, Co. Litt. 53 a, is expi-ess that, in ordinary cases a furnace could not
be removed; and, if it icere removable in all cases. Avhy should the words
p7ir son avantage have been added at all.

This is, however, merely matter of curiosity, for the law respecting the
tenant's right to remove fixtures was not long allowed to depend upon decis-
ions in the Year-books, and his privilege of removing trade fixtures was
firmly established by Poole's Case, 1 Salk. 368, Mich. 2 Anme; where it is
laid down by Lord Holt, among other things, " that during the term a soap-
boiler might well remove the vats he set iip in relation to trade, and that he
might do it by the common law (and not by virtue of any special custom) in
favour of trade, and to encourage industry. But, after the term, they become
a gift in law to him in the reversion, and are not removable." This case
was followed by many others, asserting the same exception, and grounding
it on the same reason, namely, the encouragement aflbrded to trade by pub-
lic policy. See Lawton v. Laioton, 3 Atk. 13. Lawton v. Salmon, 1 H. Bl.
259 n, recognised in Earl of Mansfield v. Blackburn, 6 Bing. N. C. 426; Pen-
ton V. Robart, 2 East, 90; Dean v. Allalley, 3 Esp. 11; Trappes v. Harter, 4
Tyrwh. 121 ; and the text. In Petrie v. Daioson, 2 Car. & Kir. 138, Cresswell,
J., held that a reversionary interest in trade fixtui-es would pass by a parol
agreement.

The benefit of this exception was held, in Laicton v. Lairtou. to apply to a
tire-engine erected under a shed, and which could not be removed without
considerable injury to the freehold: in Dean v. Allalley, 3 Esp. 11, to a shed
set up for trading purposes, called a Dutch barn, having a foundation of
brick-work and uprights fixed in and rising from the brick-work and sup-
porting the roof which was composed of tiles and sides open : in Fitzherbert
V. Shaw, 1 H. Bl. 528, to a shed built on brick-work, and to posts and rails.
From Penton v. Robart, 2 East, 88; 4 Esp. 33, as explained by Mr. Amos,
little more can be certainly collected than that Lord Keuyou at N. P., and
the court afterwards, thought that the mere erection of a chimney would
not prevent the right which would have other-wise existed of removing the
surrounding building. In Thresher x. E. L. Watn-i'-orks Company. 2 B. & C.

1442 ELWES V. MAWK.

fi08,' the question was discussed, whether the tenant couhl remove a lime-
kiln substantially built of i)rick and mortar at the er)st of HWi/.. and having
its foundations let into the jj;round. The case, however, turned upon other
points.

It sometimes liappens that the tenant's rii;iit docs not di-pt-nd altogether
on the general law, but is extended l)y a special custom or Ux Ion. See In
CnlliiKj V. Tufitcll, B. N. 1'. iU, per Treby, C. .1.; iMirtmi v. Sulmnu, W Atk.
15 n, per Lord Mansrteld; Withenll \. llmrilh, 1 Camp. "-''J? ; /'uri.-i \. Joneg,
2 B. & A. I(i5; 'J'raj>pni v. JJurlcr, 4 Tyrwh. (;•>:{.

To whatever extent the right to remove trade fixtures nniy be carried,
common sense and justice seem to re(|uire that it should be bounded by the
rule laid down by Lord Ilardwicke in LamUm v. LaiPtnn, viz., that the prin-
cipal tiling " shall not be destroyed by the accessory." It may perhaps l>o
deduced from this, that, if a trading llxture couhl not be removed without the
destruction or great and serious injury of some important l)uilding, it wouhl
be irremoval)le. lint when the building is but an ac<-essory to the (Ixtnre,
such as an engine-house, and built to cover it, there we have the authority of
the text for saying that one as well as the other is removal)le.

Where a lease contained a c(»venant to repair, and yield uj» in repair, the
furnaces, lire-engines, iron-works, dwelling-houses, an<l all other erections,
buildings, improvements, and alterations, to be thereafter erected, built, or
set up, cxn'pt tho iron-trork custimjK, railways, wimseys, gins, nun-hiiu's. and
the moveable implements and nmlerials used in or about the .said furnaces,
fire-engine, iron-works, stove-i)its anil prennses; and there was a p(jwer given
to the lessor to purchase those articles, givinir a certain notice, it was lield
the lessee had a right to remove whatever was in the nattire of a machine or
part of a machine, but not what was in the luiture of a buiUling or support
of buiUiing, (rlthi>uijh made of imn ; ami that in such removal he might «listurb
such brickwork as was necessary, and was not bound to re.-;tore it to a perfect
state, as if the article it was intended to support or cover was still there;
Foley V. AddPiihrooh-p, Vi M. & \V. 174, to which case the reader is referred
for the description of a great number of articles to which the above rule wa.s
held applicable. [Where a lease c<mtained a provision by which the tenant
renounced the ordinary right to remove tenant's fixtures during the term it
was held that they could not be taken by the sheritf in an execution against
him. Dnmoujne v. Rnmaoj, 2 U. & C. 777.]

The principal case shows that the tenant's privilege with respect to flxt>ires
set up for trading purposes, does not [at common law] extend to those set
up for agricultural ones. Some very sensible observations on this point are
to be found in the work of Mr. Amos, who argues with great force that the
opinion expressed by Lord EUenborough in the text, viz., that the doctrine
sought to be established by the defendant " was contrary to the uniform
current of legal authorities," can hanlly be maintained ; and that the rule laid
down by his lordship is liable to this further objection, that it has a teiulency
to contine the privilege of the tenant within narrower limits than are desig-
nated by the policy to which it owes its existence ; and there seems no good
reason for conferring it on trade to the exclusion of husbandry, a pursuit
equally advantageous to the community, and which is now, like manufactures,
often carried on by the aid of valuable machinery. Even if the privilege be
confined to trade, still many of the occupations of the agriculturist are trades,
using that word in its extended sense, not in the narrow and technical one
Avhich it expresses in the Bankrupt Act.

ELWES V. MAWE. 1443

The opinion that trade onglit, with reference to tlie subject now under
discussion, to bear this more extended sense, is countenanced by Lawton v.
Lawton, 3 Atk. 13: Dmlley v. Warde, Amb. 113, in wliich Lord Hardwicke
appears to have considered tlie privilege in question as belonging to fixtures
by means of wliich the owner carried on a species of trade by which he
rendered the produce of his own land availal)le to liis own profit.

Of a somewhat similar description are tlie cases of nurserymen and gai'-
deners, who may remove trees, slirubs, and otlier produce of tlieir ground,
planted by them with a view to sale (see Penton v. Robart, 2 East, 91; 7
Taunt. 191; 4 Taunt. 316; see also Wansborough v. Matun, 4 A. & E. 884;
i?. V. Oth'ij, 1 B. & Ad. 161), which ordinary tenants cannot do, Empson v.
Soden, 4 B. & Ad. 656; 1 N. & M. 720. In Penton v. Robart, this privilege
was considered to extend to greenliouses and otlier similar erections. " Shall
it be said," asked Lord Kenyon, C. J., " tliat the great gardeners and nursery-
men in the neiglibourliood of tliis metropolis, wlio expend thousands of
pounds iu the erection of greenhouses and hotliouses, &c., are obliged to
leave all these things upon the premises, when it is notorious tliat they are
even permitted to remove trees or such as are likely to become such, by the
thousand, in the necessary course of their trade? If it were otherwise,
the very object of their holding would be defeated." 2 East, 90. Lord Ellen-
borough, however, in the principal case, disapproved, as will have been seen,
of such an extension. See, too, BucMand v. Butterfield, 2 B. & B. 58, per
Dallas, C. J.

Upon the wdiole, the extent of tlie tenant's right with respect to agricul-
tural fixtures, does not seem, even as yet, quite defined. It is clear that it
does not go beyond, and, unless the opinion expressed by Lord Ellenborougli
in the principal case be modified, it falls considerably short of his rights
with respect to trading fixtures. A modern statute, liowever, has extended
the right to remove agricultural and trading fixtures. By the 14 & 15 Vic.
c. 25, s. 3, it is provided that if any tenant of a farm or land shall after the
passing of that Act (24 July, 1851), with the consent in writing of the land-
lord for the time being, at his own cost and expense, erect any farm building,
either detached or otherwise, or put up any otlier building, engine, or machin-
ery, eitlier for agricultural purposes or for the purposes of trade and agricul-
ture (which shall not have been erected or put up in pursuance of some
obligation in that behalf), all such buildings, &c., shall be the property of
such tenant, and removable by him, notwithstanding the same may consist
of separate buildings, or the same or any part thereof may be built in or
permanently affixed to the soil ; so as the tenant making any such removal
do not in any wise injure the land or buildings belonging to the landlord, or
otherwise do put the same in like or as good plight and condition as the same
were in before the erection of the things so removed. Before removal, how-
ever, every tenant must give to the landlord, or his agent, a month's notice
in writing of his intention, and the landlord may thereupon elect to purchase
the things so proposed to be removed, whereupon the right to remove shall
cease : the value is to be ascertained by two referees (one chosen by each
party) or their umpire, and is to be paid or allowed In account by the land-
lord. [And by the 46 & 47 Vic. c. 61, which repeals the Agricultural Hold-
ings Act of 1875, and applies only to holdings wholly agricultural or wholly
pastoral, or in part agricultural and as to the residue pastoral, or in whole or
in part cultivated as a market garden, or to any holding let to a tenant during

]444 KLNVKS V. MA WE.

his (!(>ntiniinnce in any olllcc, appointment, or i-Miployniriit, lnl«l und.r lin-
lanillonl, it. is fnitliiT eniicteil l)y s. :?4 :

'• Wiuro after tlie coninu'iiceinent of tiiis Act a ti-iiaMl alllxes t<» lii"* iioUlini;
anv eiii^iiic, uiatliiiiery,/rM(/;(y, or other (Ixtiire, i>r t-reits any huiUliiuj, fur
wliicli lie is not under this Act or otherwise entitled to coiiipenMillon, and
wliicli is not so allixed ur ouctfd in pursuanee of some ol)lii;atioii In that
belialf, or instead of some fixture l)elon';iiiy to tlie landlord, then sueli llxture
or Indldiny shall be the property of and be removable by the tenant. hif»ri- or
within a rras«nabl>' tinn' aftt-r the terminntion of the tenancij. rrovUled as
follows : —

1. Before tlx- n-niovul of any llxture «»;• f,itil<lini/ the t»iiant shall pay all

rent owinj: l)y liini and sliall perform or satisfy all other his ol)rnin-
tions to the landlord in n-speet of the holdiiis;.

2. In the removal of any tlxture nr huililiinj the tenant sludl not do any

avoidable ilanui^e to any nthi r buildini; or other part of tlie holdin;;.

3. Inunediately after the renioval of any llxture or huililiiiii, tlie tenant

shall make <;ood all danniye oeeasloned to any otht-r bidldUiK or
other i)art of the holding by the removal.

4. The tenant shall not remove any tlxtun- it hniliUmj without ulvlnjj

one month's i)revious notice in writing: to the lanillord of the inten-
tion of the tenant to ri-move it.

5. At any time before the expiration t)f the notler of removal the hunl-

lord l)y notice in writinj; ;;iven by him to the tenant, may elect to
purchase any llxture <>r huiliUnij comprised in tlie notice of removal,
and any llxture nr hitililimj thus elecleil to be purchased shall Ik> left
by the tenant, and shall be<-onie the prop«Tty of the lauillord, who
shall pay the tenant the fair value thereof to an Incomiui; tenant of
the hoklinn; and any tlill'erence as to the value shall be settleil by a
reference under this Act, as iu case <»f compensation (.but without
appeal).
The above section dillVrs from the corropondinir section (r>;J) of the for-
mer enactment mdy by tin- addition of the words in italics, and by the onds-
siou of the provisicms as to st*'am-en;;lnes.]

With respect to llxtures put up f(»r purposes of i)ri»itt>ii-nl or rnnrfnirnre.
Lord Ilolt had, in Pofih'n f'dsf, 1 Salk. 'MiS, expressly denied the rl^ht of the
tenant to remove them; autl a sinnlar iloctrine had been laid «lown lonj;
before in IL rld/o'inlrn'x Cnsr, 4 t'o. (!4. thonirh denied in S'/nifr v. Mnyrr, 2
Freem. 249. Hut whether the opinion of Lord Holt expn-ssetl in Pnnle'a Case,
was or was not warranted l>y the old authorities, it is now settled that there
are many ornamental llxtures which the tenant is entitled to remove. Such
are hanjrin^s and lookin'r-i;lasses, p'r rurimn, in liirk v. /irlmir. 1 r. Wms.
94; tapestry and iron backs to chimneys, for the executor is entitled to these
as against the heir, Hanri/ v. Ilarvei/, Str. 1141, and the tenant's privileges
against the landlord are more extensive; (see, too, per (rihlts, C. J., In Lee v.
Jiisdon, 7 Taunt. 191) : wainscot fixed hij screws, and marble chimney-pieces,
per Lord llardwicke in Lairtnn v. Lawton, 3 Atk. 15, and I'j- p. Qniinf>>/, 1 Atk.
477, and per Lord Manstield, 1 H. Bl. 260, in nntis; stoves and grates fixed
into the chimneys with brick-work, and cupboards supported by holdfasts,
per Bayley, J., />'. v. (S'^. Dnnstan, 4 B. & C. (!8fJ ; and see L"r v. liimlon, 7
Taunt. 191; see further, Colcgrare v. Dins Snutas, 1 B. & C. 77; Winn v.
Ingleby, 5 B. ..t A. G2o : A', v. Londonthnrpe, C, T. K. 379.

In Crriimes v. Boicercn, C Bing. 437, the tenant was permitted to remove a

ELWES V. MAWE. 1445

pump Avhich was attached to a stout perpendicular plank resting on the
ground at one end, at the other fastened to tlie wall by an iron pin wliich liad
a head at one end, and a screw at tlie other, and went completely through the
wall: "The article," said Tindal, C. J., "was one of doinestk convenience,
was slightly fixed, erected by the tenant, and might be removed entire." But
in BurJ.-land v. Butterfield, 2 B. & B. 54 : 4 J. B. M. 440, the court refused to
extend the privilege of ornamental fixtures to a conservatory erected on a
brick foundation fifteen inches deep, attached to the wall of the dwelling-
house by cantilivers let nine inches into the wall, connected with the parlour-
chimney by a flue, and having two windows in common Avith the dwelling-
house, and to a pinery erected in the garden on a brick wall four feet high.
The court said that it was " clear on the one hand that many things of an
ornamental nature may be in a degree aftixed, and yet during the term may be
removed ; and, on the other hand, equallj' clear that there maj' be that sort of
fixing or annexation which, though the thing annexed may have been merely
for ornament, will yet make the removal of it waste ; that every case of this
sort must depend upon its peculiar circumstances ; and that no case had
extended the privilege so far as to include the case then under consideration."
See West v. Blaketoay, 2 M. & Gr. 729, [and Wilde v. Waters, IG C. B. 637, in
which case it was held that trover would not lie for a ladder, a crane, and a
bench, whicli had been left upon the premises by an outgoing tenant, and had
been fastened to the floor, joists, and walls with nails and sci'ews in the usual
way].

Mr. Amos remarks that Buckland v. Butterfield may be considered as the
leading case upon the subject of ornamental fixtui'es.

Whether wainscot fixed without screws can be removed, may, perhaps, be
questionable. Lord HaMwicke thought it could, but said it was a very strong
case, and many of the older authorities are the other v/ay.

See the subject discussed, Amos, [3rd ed., 12o-G], where four circumstances
are pointed out as mainly essential to be regarded wherever the question is
whether a fixture of an ornamental nature be removable. 1. The mode in
which and the extent to which it is united with the premises. 2. Its nature
and construction ; as whether it appear to have been intended as a tempo-
rary or as a permanent improvement. 3. Whether its removal is likely to
occasion any, or any considerable, damage to the freehold. Lastlj', Avhether
there is any custom or prevalent usage applicable to the case in question.

[In Bishop v. Elliott, 10 Exch. 496, S. C. in error, 11 Exch. 113, where a
question arose as to the construction of a covenant to deliver up prelnises,
with all fixtures and articles in the nature affixtures belonging thereto, some
important observations wei'e made in the judgment of the Exchequer Cham-
ber with I'eference to the principle upon Avhich the right of a tenant to
remove ornamental fixtures depends. After referring to the conflicting
opinions of Lord Holt and Lord Hardwicke, which are mentioned above,
and to the judgment of Lord Mansfield in Lawton v. Salmon; 1 H. Bl. 260, the
court proceeded as follows: — "It does not appear to lis at all difficult to
reconcile the difference which maj' appear in these authorities, nor to extract
the principle which is to be gathered from them. Considering that the law
has been regularly and gradually relaxing its rule as to the removability by
tenants of fixtures erected by them, the difference between Lord Holt and
Lord Hardwicke is explained by the difference of time. Lord Holt was
speaking of the rule unrelaxed ; and when Lord Hardwicke spoke of chim-
ney-pieces being removable generally, without any qualification as to their

1440 ELWICS V. MAWi:.

material or ornamentation, it cannot bo snpijnseil tliat ho Intendi'd to lay
down the rule more broadly tlian he did in a later case (L'tirton v. Lmrtun, 3
Atlc. 13), when he spolce in more qualified terms of mari)le chininey-ph'Cfs, or
than Lord MansHeld, when he used the same qualillfd terms still later (In
LawUm v. Salmon, 1 II. Bl. 2G0). Nor. on tlie other hand, w«»ul<l it be rea-
sonable to suppose that the latter intended to linut It to marlih- ehimney-
pieces, merely as such, with reference to the expense aiitl artistic skill
employed upon them. Both, no doul)t, had in their minds the same principle
which the later cases expressly brini; forward, that of tluir bcin^ ornamental.
In all these cases, no doubt, the same princi|)le was inteniled to be laid down,
which is more formally and precisely stated l)y Dallas, C J. (In Fimkitdiil v.
Butterfiekl, 2 B. & B. 54). It is a nuitter of common knowledf;e, that n cen-
tury ago, marble chimney-pieces of ordinary ijrain and plain workmanship
were by no means so commonly used in middle-rate houses as now; while
chimney-pieces of foreign marbles and workmanship hiirhly sculjjtured, and
of much expense, were objects much esteemed, and often erected in houses
of a higher description. Where these had been substituted by the tenant for
a chimney-i)iece of wood or stone, it was l)nt a reasonable relaxation of the
strict rule of law U) allow their removal durini; the terni. t)f chimney-pieces
sucli as these, it seems to us that Lord llardwicke and Lord Manslield in-
tended to speak. And when Lord Ellenborouji;h <;oes more into detail, by his
classing them under ' luatters of ornament,' and with ' pier-glasses, hangings,
and wainscot fixed only by screws, and the like," he nuirks distinctly both the
principle and the limit of the relaxation. Indeed, It would be very unrea-
sonable to hold that a chinmey-piece of tin- plainest worknumship and most
moderate expense, however atllxed, might be removed merely because it was
of polished limestone, and therefore denominated marl)le, l)ut that one of
granite or freestone, however wrought, and at whatever exjiense, or of
wood, however skilfully carved, nught not." See also Smnufr v. liruinihnc,
34 L. J. Q. B. 1.'50 : :ni(l a< to the construction of contracts limiting the
removal of fixtures and articles of a similar kind, />mnry(ftir v. JliimKfH, 2
H. & C. 777; and The Duke of Bomtfort v. BntPK, 31 L. J. Chan. 481.]

It has been already observed, that in the very first case which established
the tenant's right to remove fixtures under any circumstances, a limitati<ui
to tlie time during which that rii^ht endures, was pointed out. That limita-
tion still exists, and was asserted in one of the later ca.ses on the subject,
Lyde v. Rusnell, 1 B. & Ad. :{!)4. The rule is, in the Yt-ar-ltook. 20 H. 7, laid
down, as will be recollected, in the following words: •• Diniiifj his term he
may remove them, but if he sutler them to reuuiin fixed a/tir the term, they
belong to the lessor; " and the same rule with respect to time is laid down in
Poole's and several other cases; Ex parte Quinrey, 1 Atk. 477; Dudlrtj v.
Warcle, Arabl. 113; Lee v. Bidson, 7 Taunt. 191; Buckland v. BuUerfield, ubi
supra; Colegrave v. Dias Santos, 2 B. & C. 79; Lijde v. Russell, ubi supra;
Weeton v. Woodcock, 7 M. & W. 14; Rofey v. Henderson, 17 Q. B. .")74 ; [Pn/jh
v. Artnn, L. R. 8 Eq. 62G] and the principal case.

In Penton v. Robart, 2 East, 88, this rule was somewhat enlarged, for, in
that case, it was decided that a tenant who had remained in possession after
the expiration of his term had a riglit to take away fixtures which he luight
have removed during his term. " He was, in fact," said Lord Kenyon, " still
in possession of the premises at the time when the things were taken away,
and therefore there is no pretence to say that he had abandoned his right to
them."

ELWES V. Mx^WE. . l^^T

These words, perhaps, cast some slight on the prmciple which governs

thrsubiect It will be remembered that the words of Lord Holt .n Poole s

Zel- After tke term tkey lecame a gift in la. to him in ^'^--f' ■-"' -^

not removable" It would seem, therefore, that the landlords right to

Tern depeTup-i a presumption of law that the tenant, quitting the prem^

?nt the expiration of the term, and leaving the tixtures behind him, intended
;"be tow them on his landlord, to whom they become a ,1ft in la.; and th.s.

^X^s on the premises which he has .uitt«l, f « j^^^-^: ^"^

• 1 ;. thn^ liP has a ri<'-ht to come on the premises foi the puipose oi

::;;t ;;. faw y' TM "loctrine «eem.. however, to assume that a tenant

— -:■ rt=c^s -r^^^zT^ ":tt
x:rrr:,;::^:r;:i:;:ryt::r^;> t.:f:f ^{ e

tuected from the several cases decided on this subject seems to be this .
t^Tt^. right to remove fixtures conUni.s during ^ j^X^^^;
and during such further period of possession by him as he holds the p^enuses
ur^der a right stm to consider h^^s^e^^^itr ^^^^^^^^^^ ^^^^

fin Leader v. Homewoud, 5 C. B. ^. &• o*o d,
demised premises for some days after the expiration of hi. te m. He then

f f ;?^-:^';:;;:r;;^ir rtJ ^^^^^^^

r't MS term, and so become a tenant at snffenvnce, n. -'-"" f^'-^
durlno the time he continues In possession as such tenant But the .ule,
r;;.: its e.act meaum, ma, - 's .Jainiy inconsis^nt ^^^^^

■^lecera;. to consi.ev the import of the tu.e wi«, ve.ei-ence^^^^^^ the .-.gh
of a tenant at sufferance during the continuance ot such tenancj , becau e
he ialorC. in the present case, had re-entered -•«-*.;.'>';- ! " '°

'itir^r2::^r^r:::zr'^M:h^::i:::^^^^^^
S?B^'frr-::;M:^h:-r:^-=^^^^

./ones, ^ a. .^ ^ +, „ T p T of the C P , in ^farston v. Rowe, 8 A.

the principles explained by the L. C. J. ot tne ^. r.,

& E. 59.

1448 ELWES V. MAWH.

Neither has it ever l)eeii (Iffitlod upon solemn ftrgnmcnt whether a tenant
wliose iiiteri'st is uncertain in point of (iiiration may not linve Koiile period
after tlie expiration (<f liis tenancy allowed liini for the removal of his iJx-
tures; and, indeed, the case of eml)lenients and one or two other anal<.j;lcii
atlord reason for believiii;; tluit sudi a distinction wt)uld hv eatulilished la
his favour. It has never l)een determined upon anli-mu itnjummt, hut the
point mi<;lit have heen involved in the case of W'tiiiahnrinii/h v. Mntim, 4 A. L
E. 884. 'J'here, a tenant for lives whose interest had expired, and who had
quitted the premises, recovered in trover a wooilen harn, which re»ted hy ittt
own weight on a stone foundation. This case Is, however, renUy open to tlie
observation winch has (thouj^h, perhaps, grountllessly) been made on I'fntnn
V. linhart, viz., that the i)arn was not a fixture, hut n nu-re chattel, and the
decision appears to have proceeded on that ;:round alone.

Supposini; a tenanl whose interest is of uncertain «luration to have a ri;:ht
to remove fixtures after it has expireil. It is clear from W'eftnu v. W'lunlroi-k,
7 M. & W. 14, that such riirht must he exercised irifhin a rrmxnialilf titni' :
see the facts of that case. )>n.it [SlauihUl v. TUf Maijnr <>f /'nrlimunith,
i C. B. N. S. 120, and ^/oils v. ./itme.'<, ;W L. T. N. S. 595. Where, hy the
terms of the demise, the tenant Is entitled to remove tenant's fixtures, and
the landlord gives notice of his intention to re-t-nter for a forfeiture, the
tenant has a trasonahli' time fnmi the receipt of the notice for their removal,
Suiniier v. /irfiniihnr, M L. J. Q. B. i;U)].

But whatever may he the precise lindtation where the parties arc silent. It
is clear tluit they liavc a right to fix one for themselves hy special agreement;
sec Xaijlor v. ChIUikjc, 1 Taunt. 10; J'niri/ v. Ununt, •> Stark. 4o;{ ; ffinKlirr v.
East Liimlon Wntcrxrorks Cu., 2 B. & C OOS ; A'dr/ o/ Mnn.\fielil v. Ulurkhitrne,
C Bing. N. C. 42(5; U'pst v. lilnkcwnij, 2 M. & Gr. 755; F»lry v. A<hlrnhrnnke ,
13 M. & W. 174; Wood v. I/rwitt, 8 Q. B. I>1.'}. AntI It may he iiuestlonable
whether such a stipulation might not i)e created l)y Implication from the
custom of a particular district; sec W'iijfih'Kicnrth v. DalUson, autf, vol 1,
et uotas.

In Fairhurn v. Fastfond, (', M. ,>;: W. CTO, the lease contained a covenant
that the fixtures shoukl he valued to the landlord at tlie end of the temincy.
Tlie tenant having become l)anl<rupt, and tlie landlord to wliom the j)rem-
ises had been delivered up having refused to pay tlie amount of tlie valua-
tion to the assignees, it was held that they might maintain trover against him
for the fixtures. Tliis case appears to have proceeded on the principle, that,
as the landlord by the terms of the covenant was entitled to the possession
of the fixtures on condition of his paying for them, it would have been incon-
sistent with that stipulation to hold that he couUl retain them after breaking
that condition. Tlie case is, tiierefore, one in which the ordinary rule was
qualified by express agreement. See as to the effect of a covenant to leave
erections and improvemrnts, West v. Bhikeirni), 2 M. & Gr. 729; Bishop v.
EUiott, [10 Exch. 496, S. C. in error, II Exch. 113; and Burt v. I/asletf, 18
C. B. 162; S. C. in error, ib. 893. Where an undcrlessee covenanted to
deliver up all landlord's fixtures at the end of the terra, it was held that there
was no implied covenant or representation by his lessors that he should be at
liberty to remove trade fixtures during the terra, or that the lessors had not
entered into any covenant inconsistent with such right. Porter v. Drovj,
5 C. P. D. 143; 49 L. J. C. P. 482.]

It must further be remarked that, unless Penton v. Bohart be considered as
overruling Fitzherbert v. JShaic, 1 H. Bl. 258, it must be taken with the iinpor-

ELWES V. MAWE. 1449

tant qualification established by that case, viz., that where the tenant's con-
tinuance in possession is under a new lease or agreement, his rigiit to carry
away the fixtures is determined, and he is in the same situation as if the land-
lord, being seised of the land together with the fixtures, had demised both to
him. See Fitzherhert v. Shaw, recognised in Heap v. Barton, 12 C. B. 274.

The last case which will be cited upon this part of the subject is Lyde \.
Russell, 1 B. & Ad. 39-t. It was an action of trover for bells, pulls, cranks,
wires, &c., hung by a yearly tenant at his own expense. x\fter the tenant had
quitted, the landlord took down the bells, and refused to deliver them to the
tenant, unless he would pay 6Z. which he claimed for rent. The tenant was
held not entitled to recover. This case, with which, although the judgment
is not long, Lord Tenterden is said to have taken great pains, goes a step
further than any prior decision, for it shows that on the tenant's quitting the
land the property of fixtures vests so completely in the landlord, that even
though they are subsequently severed and made chattels, the tenant's right
to them does not revive. It seems to have been admitted that the bells were
fixtures for domestic convenience, which the tenant might have removed
during his term.

[It must be observed that all the cases mentioned above, in which the
ancient rule of law with reference to the articles affixed to the freehold, has
been relaxed in favour of trade, are cases in which the relation of landlord
and tenant existed. The same principles are not applicable whei'e the owner
of the chattel aftlxed is also the owner of the fee. See the judgment of Wood,
V.-C, in Mather v. Eraser, 2 Kay & J. 536; Walmsley v. Milne, 7 C. B. N. S.
115, and post, p. 223.

A bequest by the OAvner of a leasehold house of the liousehold furniture
therein, will not, except under special circumstances, carry fixtures. Finney
V. Grice, 10 Ch. D. 13 ; 48 L. J. Ch. 247.]

2. The next class of cases consists of those in which the question is
between the personal representatives of tenants for life or in tail, and the remain-
derman or reversioner. The indulgence extended to the executors and admin-
istrators of these persons is not so great as that granted in the case of
landlord and tenant, and, therefore, though it may be safely assumed that
any fixture removable as between the particular tenant's representative and
the remainderman would be so as between landlord and tenant, yet the
converse is by no means true, the privileges in the latter case being more
extensive; and therefore it is that the cases of Laioton v. Lawton, 3 Atk. 13,
and Dudley v. Warde, Ami). 113, which really belong to the class which we are
now considering, have been cited as authorities applicable to the former
class.

Those cases, coupled with the observations of Lord Mansfield in Latoion v.
Salmon, 1 H. Bl. 260, and of the L. C. J. in the principal case, show that the
representative of the particular tenant is entitled, as against the remainder-
man, to fixtures erected wholly or in part for the furtlierance of trade, and,
as the remainderman is less favoured by law than the heir, any decision in
favour of the executor of the ancestor against the heir would a fortiori be
applicable to a case arising between the executor and the remainderman.
Now there are some cases in which the executor has been permitted to
remove even ornamental fixtures as against the heir, Harvey v. Harvey, Str.
1141 ; Squier v. Mayer, 2 Freem. 249; see, too. Bed. v. Bebow, 1 P. Wms. 94.
But these cases do not go far, for the articles given up to the executor in
them seem to have been very slightly annexed to the freehold, and rather

1450 KLWKS \ . MAWK.

chattels than fixtures propt-rly so cjilU'tl ; [iiiul sei- D'Eijiirnurt v. (irrgory, L. K.
3 Eq. 382.]

There is one ease in wliicli the tinestion arises, not preelsely fn'tweeri the
executor of tenant for life and tlie reniaindernian, but l»el\veen the execuUir
of a parson or other ecclesiastical corporation sole and his successor. In
such a case, as the chattels of a corporation sole pass to the executor, he Is
entitled to certain matters of ornament, sucli. for instance, as hnnt;lni;s. See
Burn. Eccl. L. 304; C;ibs. 7r»2. The ornaments of a liishop's ehapel indeed
are the sul)jects of a peculiar rule; they are in tlie nature of lielrlooms, and
pass to the successor. Corcins Casf, V2 Co. Hit".; see Iluirhij \. Kitiijht, 14
Q. B. 240.

3. ^l.s between Heir ami Exenttor. — This is tlu- class in wldch the privllejfe
of removal is most limited, tlie heir i)einj; tlu- greater favourite «»f the law
than the remaindennan. The rule a« laUl down in Sheplierd's Touchstone,
4(!t), 470, is, that the executor shall not have " the inrUlentj* of a Jiouse, as
glass, doors, wainscot, and the lik*-, no more than the house Itself; nor pales.
Avails, stalks, tables dormant, furnaces of lead and brass, vats in a brew and
dv(!-house, standin;.; and fastened to the walls, or standln;; in and fastriu-tl to
tlie j^rounil in the middle of the house (though fastened to no wall i. a eopprr
or lead lixed to the house, the doors within and without that are han;;in:; to
or servins; any part of the house. . . . Hut if tin- ylass be from tlie win-
dows, or there be wainscot loose, or doors more than arc u.sed that are not
haiininj;, and the like, these thiufrs shall >;•> to the executor or admiidstrator,"
and this will be found consonant with the <»ther tmrirnt authorities. See
Wentw. Exors. (*.2 ; Com. Dif;. lliiiiK, B. ; 3 Bac. .\br. r.3 ; 11 Vin. .Vbr. \M.

Hut modern authorities seem to have somewhat relaxed tin- striitni-ss of
this rule, so far as fixtures partly or wholly essential to trade are eoneernetl.
Tluis, in a case l)efore C. H. Comyns, ami mentioned in Laieton v. Loirtnn, 3
Atk. 14, the executor recovered from the heir a cider-njiU, let Into the uround
and affixed to the freehold ; ami .Mr. .1. Hullcr considers the «'ider-mill as on
a footing in this respect with otiier trading llxtures of the sanie sort, as
" brewing- vessels, coppers, and tire-eiigines." H. N. 1*. 34.

Yet in Lawton v. Sulmnu, 1 II. HI. 2(;o n ; 3 Atk. 15 n.; Lord Mansfield
refused to extend the privilege to salt-pans, though the freehold would not
liave been injured l)y their removal, saying, that the inheritance, as hail been
l)roved, could not Ijc enjoyed without them; and he spoke doubtinirly of the
autliority of the case of tlie cider-mill. See, too, the expressions of Lord
Ilardwicke, in Dudlri/ v. Warile, and in Kx. p. (luiureij, 3 Atk. 477 ; and H. X. V.
34, where the existence of any privilege as against the heir in respect of
trading fixtures, seems to be denied. See, too. Lord Ellenborough's expres-
sions in the principal case; Fisher v. Dixon, 12 CI. and Fin. 312, Dom. Proc,
a Scotch case, Init decided upon the principles of English law, where it wa.s
held that colliery machinery, erected on tlie lands for their better enjoyment
by the aljsolute owner, passed to the heir, whether obtaining the heritage by
descent or purchase, as part of the realty, although portions thereof were
capable of being detached without injury to the freehold; [Buin v. Brniid, I
App. Cas. 762, where the decision was similar in tlie case of a lease which is
heritable in Scotland; and the judgment of Wood, V.-C, in Mather v. Fraser,
2 Kay & J. .')3G.]

With respect to ornamental fixtures, it has been already stated that tlie
cases of Sqnier v. Mayer, 2 Freem. 249, and Ilarrey v. Unri-eij, 2 Str. 1141,
were between heir and executor. In the former, hangings nailed to the walls,

ELWES V. MAWE.

1451

and a furnace lixed to the freehold and purchased with the house, were given
to the executor, and the authority of Herlakenden's Case to the contrary
denied In the latter, hangings, tapestry, and iron backs to chimneys, were
recovered by the executor in trover; it would, however, be difficult to sup-
port the case on any ground, except that the articles recovered were looked
upon as mere chattels, for Colegrave v. Dlas Santos, 2 B. & C. 76, is an
authority that Ijxturcs cannot be recovered in an action of trover. See, too,
Minshall V. Lloyd, 2 M. & W. 450; MacJdntosh v. Trotter, 3 M. & W. 184.
IWilde V. Waters, 16 C B. G37, and the judgment in Dumergue v. Bumsey, 2

II. & C. 777.] ^ ^

In Berk v Eeboio, 1 P. Wnis. 94, A. B. had covenanted to convey a house
and an things affixed to the freehold thereof: this was held not to include
hangings and looking-glasses fixed to the walls with nails and screws, and
w/iiSt were as tminscot, there being no wainscot underneath. A contrary
opinion had been expressed the year before in Cave v. Cave, 2 Vern. 508 ; 3
Bac Abr 63, with respect to jnrtures put np instead of icainscot ; the Lord
Keeper thought that they belonged to the heir, for that the house ought not to
come to him maimed or disfigured, [and see D'Eyncourt v. Gregory, L. R. 3 Eq.
382] There is, therefore, some contradiction among the authorities on this
subject: and, besides, Herlakendcn's Case and Cave v. Cave, dicta will be
found in very modern cases which militate against such an extension of the
executor's rights as Beck v. Rebow would appear to warrant. See the judg-
ment in the principal case, and in Lawton v. Salmon, 1 H. Bl. 260 n. ; Winn v.
Ingleby,5 B. & A. 625; Colegrave v. Bias Santos, 2 B. & C. 76; and li. v.
Inhabs. of St. Dunstan, 4 B. & C. 686.

The rule laid down by Mr. Justice Blackstone is, " Whatever is strongly
affixed to the freehold, or inheritance, and cannot be severed thence without
violence or damage, quod ex iedibus non facile revellitur, is become a member
of the inheritance, and shall therefore pass to the heir." See also the judg-
ments in llellawell v. Eastwood, 6 Exch. 295; iMather v. Eraser, 2 Iv. & J.
536; and Wahnsle>i'y. Milne, 7 C B. N. S. 115.]

4 There is another class of cases in which questions have arisen as to the
ri-ht to fixtures; those, viz., arising between vendor and vendee, mortgagor
and mortgaqee. There appears to be no doubt, that upon the sale of the free-
hold fixtures attached to it will pass in the absence of any express provision
to the contrary. Per Parke. B., in Hitchman v. Walton, 4 M. & AV. 409. See
Ruall V nolle, 1 Atk. 175; Steward v. Lombe, 1 B. & B. 507; rhresher v. E.
London Waterrvorks Co., 2 B. & C. 609. And in Colegrave v. Bias Santos, 2
B & C. 76, the court appears to have considered the rule between vendor and
vendee to be the same as that between heir and executor. " In the case of
an heir selling a house which descends to him, in the absence of any express
stipulation, he would be taken to sell it as it came to him, and the fixtures
would pass " Per Baylev, J., ibid. If, however, there be an express term in
the ao-reement relating to the fixtures, that is of course to be abided by. The
words " nxtures to he taken at a valuation " are sometimes used ; and a learned
author is of opinion, that these include such fixtures as would be deemed per-
sonal assets between heir and executor. (See Hitchman v. Walton, 4 M. & W.

409 )

Where a house is demised together with the fixtures, the tenant's interest
in them is similar to that which he enjoys in respect of trees ; and if he sever
them the right of possession immediately revests in the landlord, who may
brin- trover. Earrant v. Thompson, 5 B. & A. 826. However, the tenant's

1452 ELWKS V. MAWK.

interest is sufilcient to ctialjle him or his assignee to maintain trover against
a wrong-doer wJkj tortioiisly severs tliem. HUihmnn v. Wntton, 4 M. i \V.
409; Buydell v. M'Michad, 1 C. M. & 11. 177.

As to MorUjayes, there seems no good reason for saying, that a nmrtgage
of land can be construed to pass any ditlerent riglits with respect to llxtnreM
than a conveyance. (Hco Ilitchiiinn v. Waltun, 4 M. &\V. 400; Lanyittaffe v.
Meaffoe, 2 B. & Adol. 1G7 ; Tnippes v. Ilarttn-, 3 Tyrwli. (50:$ ; [and WitlmHley v.
Milup, 7 C. B. N. S. 11'),] as to the construction of such niortgages). The
contrary, indeed, was sui)posed to liave been laid down in AV />. (ininrey,
1 Atk. 477; but, as Mr. Amos has shown, without any very sulllcifnt reason.
The continuing possession of n.xtures by a mortgagor, after a mortgage of
the land to which they are annexed, cannot lie tn-ated as a l)adg<' of frnml.
See Stewart v. Lombe, 1 B. & B. .lOG; liyult v. liollf, 1 Atk. IC.^. ; Min:<h>ill v.
Lloyd, 2 M. & W. 450.

[In Waterfall v. renistone, (J E. & B. 806 (api)roved by Malins V.-C, In
Beybie v. Femcick, L. K. 8 Ch. 1079 («), it was lu-hl that maciiinery annexed
to an estate after a mortgage did not pass to the mortgagee its parcel of tlio
freehold, the instrument of mortgage showing tliat the parties did not so In-
tend. But in a later case in wliieli a mortgai^or who was the owner i)f the
inheritance had annexed, after tlie date of tiie mortgage, tlxtures to the free-
hold for a permanent purpose, and for the better enjoynu-nt «>f the estate, It
was held by the Court of Common I'li-as that tliese fixtures had l)ecome a
part of the mortgaged estate, there being no evidence of a contrary Intention,
and that they could not be claimed by the assignee in Imnkruptcy of the
mortgagor, although they ndgiit be trade fixtures, whicli in the ca.se of an
ordinary tenancy would have i)een reniovablt- l)y the tenant. Waliiinley v.
Milne, 7 C. B. N. S. 11"). .Vud the like rule applies in mortgages of lease-
holds, both as to tlxtures annexed at tlie time of and snl)se(|nently to the
mortgage, and whicii in the onlinary course the mortgagor, had he not exe-
cuted the mortgage, would have been entitled to remove, Mnu v. Jariths. \.,
R. 7 H. L. 481. In Wahnxley v. Milnr, the court explained and distinguished
Trappes v. Harter, and Waterfall v. Peiiistone, and stated tlmt the decisions
which establish that where a tenant for years has put up trade tlxtures, he
may remove them before his tenancy expires, have no application to cases
between mortgagor and mortgagee, in which the relation of landlord and
tenant does not exist. The same rule was recently followed in CuUirk v.
Swindell, L. R. 3 Eq. 249; and Climie v. Wood, L. R. :5 Ex. 2.-)7 ; 4 Ex. .•528;
and so as to trade fixtures annexed in a " 7Ha.11 permanent manner," Aon//-
bottom V. Berry, L. R. 5 Q. B. 12:$, approved in the ('. A. in Shejjield, &c.,
Buildiny Society v. Harrison, 15 Q. B. I). 358, 54 L. J. C^. B. 15. See also
Mather v. Fraser, 2 Kay & J. 53G ; Fx parte Ashhnry, in re Ficharda, L. R. 4
Ch. 630 ; Holland v. Hodyson, L. R. 7 C. P. 328 ; Tottenham v. Swanitea Zinc
Ore Co., 52 L. T. 738. In another modern case a lessee mortgaged tenant's
fixtures and afterwards surrendered his lease, and took from his landlord a
fresh term; it was held, under these circumstances, that the mortgagee had a
right to enter and sever the fixtures, as it was not competent to the tenant to
defeat his grant by a subsequent voluntary surrender. The London Loan and
Discount Co. v. Drake, 6 C. B. N. S. 798; Saint v. Pilley, L. R. 7 Ex. 137.
And although the mortgagor has " for the purpose of better securing the
interest," attorned tenant to the mortgagee, the latter is entitled to the trade
fixtures against the trustee of the bankrupt mortgagor, though affixed after
the execution of the mortgage, Ex parte Punnett, 16 Ch. D. 226, 50 L. J.

ELWES V. MAWE. 1453

Ch. 212. But where mortgagor in possession tias let the premises after
tlie mortgage, trade fixtures brought on by the tenant may be removed by
him as by any other tenant, /Sandeis v. Davis, 15 Q. B. D. 218, 54 L. J. Q.
B. 576.

The question, wliat are fixtures? was frequently discussed with reference
to the operation of the Bills of Sale Act, 17 & 18 Vict. c. 36 (now repealed ))y
41 & 42 Vict. c. 31), as to the registration of mortgages embracing fixtures,
Boijd V. Shorrock, L. R. 5 Eq. 72 ; Ilawtrey v. Butlin, L. R. 8 Q. B. 290 ; Ex
parte Dalglish, L. R. 8 Ch. 1072; Meux v. Allen, 22 W. R. 609 (decided appar-
ently under a mistake of fact, see Meux v. Jacobs, ubi sup.) ; and the rule
established under the earlier act would seem to have been that the terms of
the deed itself nmst be looked at, in order to determine whether the parties
themselves intended to constitute the fixtures a distinct security, in which
case onl}' would the deed require registration. Ex 'parte Barclay, re Joice,
L. R. 9 Ch. 576. The test in these cases has been Avhether there was or ^vas
not a power to sever and sell the fixtures; and see Re Eslick, ex parte Alex-
ander, 4 Ch. D. 503 ; Re Trethovjan, Ex parte Tweedy, 5 Ch. D. 559. Questions
of this kind are now concluded by the Bills of Sale Act, 1878, 41 & 42 Vict.
c. 31. By s. 4 of that statute, fixtures (when separately assigned or charged)
are constituted " personal chattels" for tlie purposes of the act, but fixtures
other than trade machinery as tlierein defined are excepted from the defini-
tion, when thej^ are assigned together with a freehold or leasehold interest in
any land or building to whicli they are aftixed. In the definition of " trade
machinery," s. 5, the fixed motive powers, and the fixed machinery for trans-
mitting the action of the motive powers, and pipes for steam, gas, and water,
are excluded, and with these exceptions the machinery used in or attaclied to
any factory or woi'kshop is constituted personal chattels, and any disposition
tliereof wliicli would be a bill of sale as to any other personal chattels shall
be deemed to be a bill of sale within the act. By s. 7, " No fixtures or gi-ow-
ing crops shall be deemed, under this act, to be separatel}^ assigned or
charged bj^ reason only that they are assigned by separate words, or that
power is given to sever them from tlie land or building to which they are
attixed, or from the lands on wliicli tlie}' grow, Avithout otherwise taking pos-
session of or dealing with such land or building, or land, if by the same in-
strument any freehold or leasehold interest in the laud or building to ^^•hich
such fixtures are affixed, or in the land on which such crops grow, is also
conveyed or assigned to the same persons or person.

" The same rule of construction shall be applied to all deeds or instru-
ments, including fixtures or growing crops, executed before the commence-
ment of this act and then subsistiug and in force, in all questions arising
under any bankruptcy, liquidation, assignment for the benefit of creditors, or
execution of any process of anj' coui-f which shall take place or be issued
after the commencement of this act."

Putting aside therefore trade fixtures in the limited sense of the definition,
which are for all purposes of the act to be treated as mere personal chattels
like furniture, the legislature would seem to have enacted the law as laid
down in Mather v. Eraser, and Holland v. Hodgson, viz., that where an in-
strument which conveys an interest in land, conveys also fixtures, it does not
require registration ; and it proceeds to get rid of some of the qualifications
engrafted upon this rule by cases such as Re Eslick, supra, by providing that
some of the tests therein referred to are not to be regarded as conclusive
proof that the fixtures were intended to constitute a separate and distinct

1454 ELWES V. MAWK,

security; see the sections considered in Ex parte Moore, Ac, Banking Co., 14
Ch. 1). 371). In tliat case Bacon, V.-C, appart-ntly refjnrded a tramway a.s not
a trade fixture within tiic (Iclliiitlon, and lirld tiiat It, a.s well as a steatu «rune,
cramped on to iarjie stones fixed in a bed of mortar, pa^sL-d to iliu nmrt^aKeu
of the land without rc-};istratlon.]

Questions respecting the riglit to fixtures have also arisen hfttrt-rn the
assignees of bankrujits and other parties, (u-nerally speaking, the assignecH
of a bankrupt tenant would be entitled to whatever Interest in the llxtureH
the bankrupt Inmself possessed. See Trappea v. Jlarter, li Tyrwli. C,o:\; but
6 G. 4, cap. 16, sec. 72, [now repealed, but In substance re-enactetl by the 4G
& 47 Vict. c. 52, s. 44,] entitled them to goods and chattels wlddi he had
at the time of bankruptcy in his possession, ordering, or disposition, by the
consent and permission of the true owner, and of whicli he was reputed
owner; and it lias sometimes been conteiiiled, that this enactment [might J
have the efl'ect of entitling them to llxlures. The chief decision on thl.s
subject is J/orti v. liakfr. '.» I-ast, 21."», which is frecpiently cited, and so <om-
pletely falls within the definition of a leading case, that It Is printed next to
that of Ehoes v. Maice in this collection. In Wfi-tmi v. Woodmrk, 7 M. & \V.
14, a terra ceased by proviso on the tenant's liankruptcy, and It wjls held, that
the assignee could not justify the removal of a trade fixture after the «'xpira-
tion of a reasonable time for that purpose. Whether they might have
removed it within such reasonable time was not decided.

[In Stansjield v. Thr Mmjor i»f J'ortsmnuth, 4 ('. B. N. S. TJO. a lease,
■wliich was determinable on the bankruptcy of the lessee, contained a proviso
tliat none of the machinery set uj) on the premises during the term for the
purpose of carrying on a particular trade should be removed, but should, on
the determination of the lease, lielong to the lessors; but that this stipulation
should not apply to machinery set up for any other purpose, which might be
removed by the tenant during, or at the expiration t)f , the term. The tenant
liecame imnkrupt, and the lessor re-entered. It was held, that the assignees
in l)ankruptcy of the lessee were entitled to enter upon the prendses for the
purpose of removing the fixtures other than trade llxtures, and to a rejwon-
able time for that purpose.

After some ditlerence of opinion it was decided that where the trustee of a
bankrupt or li(|Ui(lating tenant ilisdaimed the lease under s. 2o of the Bank-
ruptcy Act, 1^09, he couUl not remove fixtures either before or after the
<lisclaimer, since by the disclaimer the lease was to be " deemed to have .been
surrendered" from tlie date of the adjudication, and the effect of a surrender
was to deprive the tenant of any right to subsequently remove fixtures ; Ez
parte Brook, 10 Ch. D. 100, 48 L. J. Bkcy. 22; (reversing A> partf Foster,
47 L. J. Bkcy. 101) ; Ex parte Glegg, 19 Ch. D. 7. .Il L. J. Ch. 3(17; but the
law has been altered by the Bankruptcy Act, 1S83, s. 55, which makes the
disclaimer operate from tlie date thereof, and the court in giving leave to
disclaim will direct that the landlord shall either take tlie fixtures at a valua-
tion, or allow the trustee a reasonable time to remove them. In re Moser, 13
Q. B. D. 738.]

Where the assignees of a bankrupt lessee severed and sold fixtures which
had been assigned to the plaintiff, it was held, in an action of trespass against
them, that the proper measure of damages was the value of the fixtures
annexed to the premises, inasmuch as they might have sold them with the
lease of the house, and so have realized that value for them. Thompson v.
-Pettil, 10 Q. B. 101. [See also as to when fixtures passed to assignees in

ELWES V. ]MAWE. 1455

bankruptcy, Waterfall v. Penistone, 6 E. & B. 876, and Walmsley v. Milne,
7 C. B. N. S. 115.]

G. As between Heir and Devisee it is held that if tenant for life or in tail
devise fixtures, his devise is void, he having no power to devise the realty to
which they are incident, Shep. Touchst. 469, 470; 4 Co. 62; unless indeed
they be such things as would pass to his executor. [See as to what will pass
by such a devise as against the remainderman, D'Eyncourt v. Grerjory, L. B.
3 Eq. 382.] On the other hand, the rights of the devisee of lands against the
executor of the devisor would seem, on principle, to be the same as those of
the heir in whose place the devisee stands.

The term fixtures, in its proper sense, is confined to personal
chattels, which, though they have been annexed to the freehold,
are removable at the will of the person who annexed them ;
Chitty on Contracts (11th Am. Ed.) 489. The character of
the property, Avhether personal or real, in respect to fixtures,
is governed very much by the intention of the owner, and the
purpose to which the erection is to be applied ; 2 Kent 13th
Ed. 343. Whatever v/as fixed to the freehold perpeteui usiis
was deemed a part of the res immohiles of the civil law. Id.
347, and this perpetuity in the use of the chattel, m connection
with the freehold, furnishes an important consideration in
determining the question as to whether the chattel, in any
given case, is, or is not, a failure. Whether the fixture in any
given case is removable depends largely upon the relation of
the parties to property and to each other.

" It is impossible," says Chief Justice Morton, in the case of
Hubbell V. East Cambridge Savings Bank, 132 Mass. 447, "to lay
down any precise test by which to determine whether machinery
or other articles attached to, or used in a building, become part
of the realty. It depends upon the relation of the parties, the
character of the articles, their adaptation to, and the manner
in which they are annexed to, or used in the building, and
generally upon the circumstances of each case as indicating
the intention of the parties." See 81 N. Y. 38 ; 42 Mich. 314 ;
46 Tex. 551 ; 40 Mich. 693. In view of this statement of the
law, it need surprise no one to find irreconcileable conflict in
the many decisions of the numerous courts of this country on
this branch of the law of property. The right of a tenant to
sever chattels which he has annexed to the realty is not incon-
sistent with the doctrine that until severed the chattels are
a part of the realty. The contrary view has been a source of

1456 KL\vi:s \. MAWi:.

confusions in decisions ii[)i)u this subject. In every caae the
relation of the parties to tlic property and to eiieh other inusl
be carefully observed. In the numerous ciuses found in Anieriian
Reports, controversies respecting fixtures have arisen between
vendors and vendees, inorti^a^'ors and niorti,M^'ees, landlords
and tenants, executors and heirs or devisees, executors and re-
maindermen or reversioners, niortj^agees of the realty and
mortgagees of the personalty, and between attaeiiing ereditois
or claimants under mechanics' lien laws and others. The rases
upon this l)ranch of the law are very numerous, and no attempt
has been made to cite ihein all in this note ; l>ut referenee^*
have been made in sutlicient nund)er, it is i)elieveil, to show the
state of the law in all parts of the country where decisions on
this subject have been rendered. ( itations, with few exceptions,
are limited to decisions of the courts of linal resort in each
jurisdiction.

The object or purpose of the annexation — ita influence in
the determination of the question as to whether the chattel has
become a fixture. — Wall c. ilimls, 4 (»ray -Ot)--Tl ; iJliss v.
Wliiliicy, 1> Allen 114 ; Parsons v. Copelund, :38 Me. '^38 ; Capeii
V. Peckiiam, 35 Conn. 88; TeatY r. Hewitt, 1 Ohio St. 511 ; I'ti-
kins V. Swawk, 43 Miss. 348; Ottumwa Woolen Mill Co. i'.
llawley, 44 Iowa 57; Chapman r. I'nion Life Insurance Co., 4
Bradw. (111.) '2\) ; Taylor r. Collins, 51 Wis. 1:23; Strickland r.
Parker, 54 Me. 2(U'k Whether a chattel, detaciiable from the
realty, without injury, has become an immovable lixture, may
depend upon agreement or special relation of the parties ;
Warner v. Kenning, 25 Minn. 173. An article by severance
and the understanding of parties may become a chattel per.sonal,
which would otherwise be a lixture ; Sampson v. Graham, DG
Pa. St. 405.

The relation of the party to the freehold making the annexation.
— J^apham r. >i'ortoii, 71 Me. 83; Towne c. Fiske, 127 Ma.ss.
125; Northern Central R. Co. v. Canton Co., 30 Md. 347;
Hill V. Sewald, 53 Pa. St. 271 ; Strickland v. Parker, 54 Me-.
263 ; Wall v. Hinds, uhi supra.

A., the owner of a lot of land, entered into a written con-
tract to sell the same to C, with the further agreement that C.
was to build a house thereon. A small wooden house was, in
pursuance of the agreement, built on the lot and rested on
wooden blocks. The builder subsequently, without A.'s consent.

ELWES Y. MAWE. 1457

removed the house from the lot. Held, that while the house
stood upon the lot it was part of the realty and belonged to
A., and that after it was moved off it became a personal chattel,
but yet remained A.'s property ; Central Br. R. Co. v. Fritz, 20
Kan. 430. See 11 Cush. 11 ; 7 Gray 26.

The adaptability of the chattel annexed to permanent use on the land
or in the building to which it is annexed. — The Railway Sav. Inst.
V. The Irving St. Bap. Ch., 36 N. J. Eq. 61 ; Allen v. Mooney,
180 Mass. 155: Corcoran v. AVebster, 50 Wis. 125; Town v.
Firth, uhi supra ; Ferris v. Quimby, 41 Mich. 202. In Allen v.
Mooney, uhi supra, it was held to be a question of fact or mixed
question of fact and law whether a portable furnace, set on a
brick foundation, with the pipes and registers connected there-
with, is so placed in a house upon mortgaged land as to become
a part of the realty, — the furnace having been placed in the
house by the owner and adapted for use therein.

The manner of annexation, though an important fact to be consid-
ered, yet it does not supply a conclusive test by which to determine
whether the given article is or is not a removable fixture. — Van NesS
V. Pacard, 2 Pet. 137 ; Holmes v. Tremper, 20 Johns. 29 ; Dame
V. Dame, 38 N. H. 429 ; Curtiss v. Hoyt, 19 Conn. 165 ; Barnes
V. Barnes, 6 Vt. 388 ; Smith v. Benson, 1 Hill 176 ; Kimball v.
Grand Lodge of Masons, 131 Mass. 59 ; Leonard v. Stickney,
131 Mass. 541. In Goddard v. Chase, 7 Mass. 432, it was held
that iron stoves fixed to the brick work of the chimneys of the
house become a part of the realty and pass with it under a
levy of an execution. This case has been doubted, and the
facts are too imperfectly reported to make the decision one of
much value as an authority. Ferry-boat with chains and buoys
held not to be fixtures; Cowart v. Cowart, 3 Lea (Tenn.) 57.

It is rather the permanent and habitual use, and not the manner
of annexation, that determines the character of the articles annexed.
— Cook V. Champlain Trans. Co., 1 Den. 91 ; Brennan v. Whit-
aker, 15 Ohio 446; Walker v. Sherman, 20 Wend. 636;
Blethen v. Towle, 40 Me. 310 ; Ward v. Kilpatrick, 85 N. Y.
413. In this case mirror frames designed by the owner of the
building to which they were attached, for permanent use, were
held to be a part of the realty. See, also. Harmony Building
Association v. Berger, 99 Pa. St. 320. Temporary severance
not intended to be permanent does not divest the article of its
characteristic as a fixture ; Williamson v. New Jersey Southern

1458 EL WES V. MA WE.

K. U. Co., 29 N. J. Eq. 311 ; Patton v. Moore, 1'". W. \':i. ilH
(see 63 Ga. 490). Engines, ears and rolling stoek of a railroad
treated as fixtures; MeMillen v. Fish, 1«) W. Va. 010. So ma-
chinery in a woollen faetory ; T^yle v. Palmer, 42 Mieh. 314.

To constitute an article a fixture, it need not necessarily be
actually fastened to the freehold. — Alvord Carriage Co. v.
(ik-asoii, 3t> Cttnn. S<) ; Cajji'ii r. Peckham, nfn xnpni ; State v.
Northern Central R. Co., 18 Md. 193; Minnesota Co. v. St.
Paul Co., 2 Wall. G45, note ; Farrar v. Staekpole, Greeid.
157 ; Snedeker v. Warring, 2 Kern. 170 ; Kowand i'. Anderson, 33
Kan. 264 ; Ilackett v. Amsden, 57 Vt. 432 ; Voorhis v. Freeman,
2 Watts & S. 116; Pyle v. Pennock, Id. 390. This class of
cases is sometimes spoken of as eases of constructive annexation ;
Morris's Appeal, 8S Pa. 368. Hails and hrit^ks do not U'eome
fixtures until actually or constructively annexed to tlic free-
hold; Tlnveat r. Stamps, 67 Ala. 96. Hoards used as a perma-
nent floor in a corn barn, and stone posts on a farm to be usi-d
for fences are fixtures; Ilackett v. Amsden, .")7 \'t. 432 A: 641 ;
see Rowand v. Andcison, 33 Kan. 2iil.

As between landlord and tenant the law regards with peculiar
favor the right of the tenant to remove articles annexed by him to
the freehold during his tenancy. — Wall r. Hinds, 4 Gray 270;
Galliehl v. Ilapgood, 17 Pick. 34; Miller v. Baker, 1 Met. 27;
Winslow V. Merchants' Ins. Co., 4 Met. 306 ; Pellenz v. Buller-
dieck, 13 La. Ann. 274 ; 18 La. Ann. 614 ; Finney v. Watkins, 13
Mo. 291. In Aml3s v. Hill, 10 Mo. App. 108, the court lield a
fixture is removal)le when the premises will be in as good con-
dition after removal as before, and these questions are in all
cases for the jury. In Deane v. Hutchinson, 40 N. .1. K^\. S3,
it was held that a building erected by a tenant on leased land
was not removable as a trade fixture, liis lease containing no
provision for such removal. This seems to be a limitation of
the tenant's right of removal, which will not be found in the
decisions of courts generally. A building may as well be a
trade fixture as a piece of machinery placed within it.

Li the case of King v. Johnson, 7 Gray 239, Bigelow, J.,
states succinctly the general rule of the common law to be,
"that things affixed to the realty become part thereof, and
belong to the owner of the soil." He also gives '• the reasrm
why a tenant is allowed to remove structures erected for pur-
poses of trade or convenience, aflixed by him to the realty

ELWES V. MAWE. 1-*^^

during his tenancy; it is because havmg paid as rent a full
equivalent for the use of the premises as demised, it .vmild be
inequitable to compel Mm to forfeit articles at the end of the
term which he had procured for his own use, and at his own
expense " But in that case the court decided that a person
occupyino- land under an agreement with the owner to pur-
chase pa'yino- no rent, has not a tenant's right to remove a
fixtui'e he\as placed on the land. See McLaughlin .. Nash, 14
All 1 Qr*

The fixtures which a tenant may remove are (1) those put
up for ornament or the more convenient use of the demised
premises, and (2) trade fixtures; such as cisterns, sinks, and gas
nipes- Wall V. Hinds, uhi supra; a padlock for securing a
corn-barn and movable boards fitted and used for corn-bms ;
Whiting .. Brastow, 4 Pick. 310. Trees and shrubs on land
demisel and used as a nursery garden ; Miller . Baker 1 Met.
273 Platform scales; Bliss v. Whitney, 9 Allen 114. A
wooden ice-house; Antoni .. Belknap, 102 Mass. 193. Bowling

alleys with their usual appurtenances; Id. 201. A glass ease
case of drawers, a mirror and gas fixtures procured by a tenant
for an eating-saloon ; Guthrie v. Jones, 108 Mass. 191.

Counter, shafting, pulleys, hangers and belts, a Portable fur-
nace, and steam pipes; Holbrook v. Chamberlm, 116 Mass. 155.
See Talbot v. Whipple, 14 Allen 177 ; Kimball «. Grand Lodge
of Masons, 131 Mass. 69. A pump placed in a well by a tenant,
he n^ay remove ; MeCracken .. Hall, 7 Ind. 30^ A new bo.Ier,
back stand, and valve put in a mill; Mason .. Fenn, 13 11. 5-5
A ball-room erected by the lessee of an inn ; Omburyt.. Jones,
19 N J 284. A still set up on land of the lessor by the lessee ;
Pillow 'v. Love, 5 Hayw. (Tenn.) 109. Buildings erected by
lessees upon vacant lots under "ground leases are by a cus-
tom in the city of Milwaukee removable as fixtures; Keogh ..
Daniell 12 Wis. 163. Fixtures of a saw-mill ; Stokoe v. Upton,
40 Mich. 681. See McAuliffe ». Mann, 37 Mich. 639.

A steam engine, machinery, and fixtures attached to the soil
by a lessee, for the purpose of hoisting coal from mmes situ-
ated thereon, including all boxes and other necessary WP^"^
connected therewith, become fixtures ; Dobschuetz .. Holliday,
82 111. 871, 876 ; Ege .. KiUe, 84 Pa. St. 333. Mirrors set m
the wall of a building by making recesses therein, which re-
cesses would be left rough if the mirrors were removed, will be

14(10 KLWKS V. MAWK.

considered as part of tlio Ireeholil ; .M;itki»' /•. Smith, '» La. Ann,
TIT. Tliis case arose under the ('<»du (»f La. Arts, 4.'>'.>, ItlO.

Tlic rule as to the rii^dit of tenants to niiiove, as jjfiierally
adoi)ted in the courts of this country, is stated hy Story, .L, in
giving the opinion of the court in Van Ness r. i'aeani, 2 IVt.
140: " The (question whether reniovahh' or not «h)es not tle|>end
upon tljo form or size of the huihhng, whi-tlier it has ii hrick
foun(hition or not, or is one or two stories high, or lias a hrick
or otlier chimney. The soh; question is, whether it is designed
for [)urposes of trade or not.

The foHowing eases ilhistmte \ annus aspci-ts of the rights of
Lindlord and ten;ints as to fixtures: MiUer r. IMumh, ♦» Cowcn
60') ; Kittredge v. Woods, " N. 1 1. oOo : I)esj)iitch Line v. Hcllamy
^[fg. Co., 12 N. IL 20'); Powell r. Monst.ii Mfg. Co., 3 Mason
4r)(); F;irrar r. Staekpole, ♦> Greeiil. l.')4; Voorhis v. Freeman, 3
Watts »!t S. lit); Swift r. Thompson, !> Conn. «'•:? ; Itohinson r.
Wright, 2 MacArthur 04 (1). ('.).

A lessee who accepts a new lease of tlu; demised prcmi.scs
before the expiration of the first term, the new term to com-
iiimce at the close of the first, lo.ses his right to remove, at the
end of the first term, fixtures he had placed on the premises
before the execution of the new lease, if there Wi no reservation
in tlie new lea.se of his right of removal ; Watris.s r. National
r>aiik of Cambridge, 124 Mass. oTl. Hut in Kerr r. Kingsbury,
o'.» Mich. 150, it was held that the tenant's right of removal eon-
tiuucd under the new lea.se. See Marks v. Ryan, 03 Cal. 1<»T.
One deriving title to demised premises, while the tenancy ex-
ists, under a mortgage given by the lessor subsequent to the
lease, has no other or greater rights as agjiinst the tenant than
the lessor had : Globe Marble Mills v. Quinn, T'"* N. V. '2-\.

The law of fixtures as between mortgagor and mortgagee. —
Machinery which may be easily disconneete(l from the fri'eli(dd
and used in any other building does not pass to the mortgagee
of the freehold, absolutely : Gale v. Ward, 14 Mass. 3')2 ; Taylor
V. Townsend, 8 Mass. 411. Machines adapted for use in any
building in which they can be put, secured in position by bolts,
&;c., and capable of being removed without injury to themselves
or to the building, do not necessarily, as matter of law, pass
under a mortgage of the building and land on which it stands ;
Maguire v. Park, 140 ^Nlass. 21 ; Carpenter r. Walker, Id. 410.
A chattel mortgage on machinery in a building was given in

ELWES V. MAWE.

14G1

contemplation of the same being annexed to the realty. After
it was annexed, a mort.c^age of the land and bnilding was given.
Held, that the second mortgagee conld hold the machniery
against the first mortgagee ; Pierce v. George, 108 Mass. 78.
See Adams v. Beadle, 47 Towa 439. See Ridgeway Stove Co.
V Way, 141 Mass. 557. Machinery so attached to mortgaged
premise's as to be a part of the freehold as between mortgagor
and mortgagee, cannot, by any agreement between the mortga-
gor and a subsequent lessee, be converted into personalty, so as
to affect the rights of the mortgagee ; Thompson v. Vinton, 121
Mass. 139. See Robertson v. Corsett, 39 Mich. 777.

A mortgage of a building covers fixtures intended to perma-
nently increase the value of the building for occupation, but
not machines incidental merely to the business carried on in the
building at the date of the mortgage ; McConnell v. Blood, 123
Mass. 47. Whether a portable furnace is so placed in a house
as to be covered by a mortgage of the land is a mixed ques-
tion of law and fact ; Allen v. Mooney, 130 Mass. 155.

Iron rails so placed on the road-bed of a railway company as
to be part of the realty, yet by agreement between the vendor
of the rails and the company they may, when so placed, retani
their character as personal property ; but such agreement can-
not affect the rights of a prior mortgagee of the railroad ; Hunt
V. Bay State Iron Co., 97 Mass. 279. See 130 Mass. 547 ; 127
Mass. 542; 132 Mass. 447; Cooper v. Davis, 15 Conn. 556;
Burnside v. Twitchell, 43 N. H. 390.

Fixtures placed in a building by the mortgagor, after the exe-
cution of the mortgage, become part of the realty and cannot
be removed by him as against the mortgagee ; Wood v. Whelan,
93 111. 153 ; Winslow v. Merchants' Ins. Co., 4 Met. 306 ; Cole
"v. Stewart, 11 Cush. 181 ; Wight v. Gray, 73 Me. 297 ; Clore v.
Lambert, 78 Ky. 224; Smith Paper Co. v. Servin, 130 Mass.
511 ; Hamilton t'. Huntley, 78 Ind. 521 ; Jones v. Detroit Chair
Co.,' 38 Mich. 92. See Richardson v. Copeland, 6 Gray 536;
Lynde v. Rowe, 12 Allen 100.

Gas chandeliers and pendant gas burners, capable of being
detached without injury to the pipe or building, not covered by
a mortgage of the realty ; ISIontague v. Dent, 10 Richardson
(S. C.) 135; Vaughen v. Haldeman, 33 Pa. St. 522; Chapman
V. Union Life Ins. Co., 4 Bradw. (111.) 29; Early v. Burtis, 40
N. J. Eq. 501.

1462 ELWKS V. MA\VK.

A mortgage of an entire line of a railroad, with all tlie tolls
and revenues thereof, covers not only the line of the road, but
all the rolling stock and fixtures, wliether movable or immova-
ble, essential to the production of tolls and revenues ; State v.
Northern Central R. Co., 18 Md. 104. See Arnohl r. Crowder,
81 111. 56. If a tenant at will of the mortgagor adds lixtures to
the mortgaged premises, his right of removal, after the mort-
gfigee has taken possession, is governed by the rule as In-tween
mortgagor and mortgagee, and not as between landlortl and ten-
ant; Lynde i'. Ilowe, 12 Allen 100. A planing machine put into
a mill after the execution of a mortgage of the latter, and rest-
ing by its own weight on the floor and connected with tlio
machinery by a running belt, hidd to be pei-sonal property and
not covered by the mortgage of the realty; Wells v. Maph*s. 15
Hun 90. See Hart /•. Sheldon, *U Hun IW ; Booraem v. Wood,
27 N. J. E<i. 371 ; Zeller r. Ad;im, 30 N. J. Kip 421 ; Watson v.
Watson Mfg. Co., Id. \s:\ ; Wlu-.ler r. Bedell, 40 Mich. 61)3.
See Ferris v. (^uimby, 41 Mich. 202. Cotton machinery, such as
spinning-frames and twisting-frames, tlumgh fasteneil to the
floor by nails or screws, held to Ik? jiersonal property and cov-
ered by a chattel mortgage as against the mortgagee of the
realty; Keeler v. Kceler, 31 N. .1. Va\. 181 ; Hoidiereau v. Hobb,
27 La. Ann. 6/)7 ; I'ope v. Jackson, 6") Me. 162; State Savings
Bank v. Kercheval, 65 Mo. 682. A shingle machine not fastened
to the floor except by a strip to prevent its slipping, not a fix-
ture; Wells V. M;4)les, 15 Hun (N. Y.) '.»0 ; Sisson r. Ilibbard,
75 N. Y. 542; Morris's Appeal, 88 Pa. St. 368. Articles that
would otherwise become fixtures may, ])y agreement of parties
in interest, claim the character of j)ersonal property; Smith v.
Waggoner, 50 Wis. 155. A j)ortable furnace held not to be a
fixture as between mortgagor and mortgagee; 36 N. J. Eq. 61,
452; Wolford v. Baxter, 33 Minn. 12. If the owner of mort-
gaged land places upon it articles so that they become a part of
the realty, an agreement between the seller of the articles and
the mortgagor, that title to the articles shall remain in the seller
till paid for, will not prevent the mortgage from attaching to
them ; Bass Foundry, &c. v. Gallentine, 00 Ind. 525.

Vendor and vendee. — As between vendor and vendee, sta-
tionary niacliinery placed upon the premises by the vendor, and
used by him during his ownership oi the freehold, becomes an
irremovable fixture ; Harkness v. Sears, 26 Ala. 493. The ma-

ELWES V. MAWE. 1463

chinery of a steam-flouring mill is considered part of the realty,
as between vendor and vendee, but otherwise between landlord
and tenant ; McGreary v. Osborne, 9 Cal. 119. Fixtures an-
nexed to the freehold by an occupant, and on an executory con-
tract to purchase it, become a part of the realty ; King v.
Johnson, 7 Gray 239 ; Smith v. Moore, 26 111. 392, which the
person thus annexing the fixtures has not a right to remove ;
Westgate v. Wixon, 128 Mass. 304. Fixtures that have become
part of the realty as between vendor and vendee, pass to the
vendee free from the lien of a prior chattel mortgage of which
the vendee has no notice ; Davis v. Buffum, 51 Me. 160 ; Bring-
holff V. Munzenmaier, 20 Iowa 513. Nor can the vendor be
permitted to limit the effects of his deed by proof of a parol
reservation of the fixtures ; Noble v. Bosworth, 19 Pick. 314.
Fixtures to a gas pipe do not become a part of the freehold so
as to pass by a grant of the latter ; Shaw v. Lenke, 1 Daly 487 ;
Heysham v. Dettre, 89 Pa. St. 506. See Leonard v. Stickney,
131 Mass. 541. If the owner of unincumbered real estate sells
an article, which as a fixture is a part of the realty, the sale
operates as a severance of the fixture and the vendee has a right
to remove it as a chattel personal; Folsom v. Moore, 19 Me. 252 ;
Freeland v. Southworth, 24 Wend. 191. See Towne v. Fiske, 127
Mass. 125. This was a case between the vendee of what was
claimed as a fixture, and an ofiicer who had attached the article
on a writ in favor of a third party ; Turner v. Wentworth, 119
]\Iass. 459. This case arose between a party seeking to enforce
a mechanic's lien on certain furnaces and ranges and the owner
of the building in which they had been placed. Held^ that the
question whether the furnaces and ranges were fixtures, and so
part of the realty, was one of mixed fact and law, depending
upon whether the furnaces, &c., were sold by the petitioner as
personal property, or furnished as parts of the house.

A bathing-tub and the necessary pipes conducting Avater into
it, if fastened by nails, pass to the vendee of the house ; Cohen
V. Kyler, 27 Mo. 122. But gas fixtures, candelabras, chandeliers,
&c., do not pass to the vendee as 2)art of the realty ; Rogers v.
Crow, 40 Mo. 91 ; Fratt v. Whittier, 58 Cal. 126 ; Terhune v,
Elberson, 3 N. J. L. 726; Cross v. Marston, 17 Vt. 533. A
banker's safe, though bricked up does not pass by a deed of the
realty ; 50 Texas 65. Window blinds and double windows pass
by deed of the house ; Peck v. Batchelder, 40 Vt. 233. A sale of

14G4 KLWrs \ . MAU'K.

the land held to i)ass the crops ^rowiiipf thereon ; Planters' Rank v.
Walker, 3 S. cK: M.4'l'.>: ninfrn in I'lMinsylvania, Smith r. Johnson,

1 1'. & W. 471 ; Kt'isel v. Karncst, 21 I'a. St. W. Si-f I'ickrns v.
Keed, 1 Swan (Tenn.) HO. Maiiurt! made in tin* <-<uirs»' of lius-
bandiy upon a farm is piirt of tin- friM-hold : Stonr r. Prortor,

2 I). Chipman (Vt.) IIT); Dunicls v. I'ond, 21 I'itk. :>♦;; : «'i
Greenl. 222; Gallagher v. Sliiplcy, 24 Md. 4lS; I'lumrr v.
riumer, 30 N. H. ooS. See Ruckman v. Ontwater, 2S N. .1. I..
5H1.

An oroan placed in a n-ri'ss tittt-d for it in a thnrrh lield to
1)(! a lixtnre as between vendor and vendee; Kofjei-s v. Crow,
40 Mo. 01 : Strickland v. Parker, ;")4 Me. 2<;3 ; Thomas v. Davis,
70 Mo. 72. riMiI)cr trees, ent down and lyini,' at fnll leii<,'th on
the ground where they i^rew, will pa.ss hy a deed of the kind;
Hraekett v. (ioddard, i'A Me. 309. So growint,' crops :ind
niannre lyiJiGf n[)on the laml, feneintj materials on a farm,
tliouo-h temporarily detaclied hnt with no intent of «liv»'rtinjj
them from iheir nse ; ({oodrieh r. Jones, 2 Hill 142. So hop
poles used in eidtivatincr hops; Bishop v. Bishop, 1 Kenan 123
(N. C). What is in its nature, otherwise pei-sonal prop«'rty,
will when actually or constructively attached to the .soil, hy its
use or intended use, become a j>art of, and pass by a deed of
the realty; Jenkins v. McCiirdy, 4S Wis. ♦»2S. Cotton-ijin and
press when removable without injury to the freehold are not
fixtures as between vendor and vendee; McJunkin f. Dupree,
44 Tex. 500. See Connor r. S(|uiers, .')0 Vt. <'>S0 : Ci.leman v.
Stearns' M'f'g Co., 38 Mich. 30.

As to the time within which the tenant can exercise his right of
removal of fixtures. — The general rule is that it nnist be done
during or at the end of the term; Hinckley v. Black, 70 Me.
473 ; Rines v. Bachelder, 62 ]\Ie. Oo ; Towne v. Fiske, 127 Miiss.
125; Torrey v. Burnett, 38 N. J. L. 457; Fratt v. Whittier, 58
Cal. 126; Jenkins v. Mctkirdy, 4S Wis. 628; Overton r. Willis-
ton, 31 Pa. 155. See 20 Kan. 430 ; Josslyn v. McCabe, 46 Wis.
501 ; Darrah v. Baird, 101 Pa. St. 205 ; 31 Pa. 155. A tenant
whose lease in terms gives the right to remove, at the end of the
tenn, buildings which he has erected on the demised premises,
may exercise that right within a reasonable term after the ex-
piration of the term ; Smith v. Park, 31 Minn. 70 ; Griffin v.
Ransdell, 71 Md. 440 ; Youngblood v. Eubank, 68 Ga. If ten-
ant fails to exercise his right of removal witliin the period of

EL WES V. MA WE. 1465

his term, the presumption is that he relinquishes his claim to
his lessor, but this presumption may be rebutted ; Railroad v.
Deal, 90 N. C. 113. The tenant may remove at the end or dur-
ing the continuance of his term, trade fixtures which he has
annexed to the freehold, but not after he has surrendered pos-
session ; First Sudbury Parish v. Jones, 8 Cush. 184 ; Burk v.
Mollis, 98 Mass. 55 ; Haiiick v. Stober, 11 Ohio 482 ; Davis v.
Moss, 38 Pa. 346; Preston v. Briggs, 16 Vt. 124; Moody v.
Aiken, 50 Texas 65. See Smith v. Park, 31 Minn. 70. His right
of removal once lost, is not renewed by his taking a subsequent
lease ; Shej)ard v. Spaulding, 4 Met. 416 ; Mclver v. Estabrook,
134 Mass. 550. See Devin v. Doughert}^ 27 How. Pr. 455.
When the term is uncertain or depends upon a contingency, as
where a party is tenant for life, or at will, he may remove fix-
tures within a reasonable time after the tenancy is determined ;
Watriss v. National Bank, ubi supra; Folsom v. Moore, 19 Me.
252 ; Mclver v. Estabrook, 134 Mass. 550. In this last case a
tenant at will of a lessee erected a building on the land with
knowledge and consent of the original lessor, Avith the under-
standing that the tenant at Avill could remove the house as
a trade fijcture. After the expiration of both terms, the build-
ing not being removed, the lessor resumed possession of the
land and then rented the same with other land to the former
tenant at will. Helcl^ that the tenant at will could not then
remove the building.

There is a class of cases important to be ruled, wliich point
out the cUstinction between chattels, which have been so
attached to the freehold as to become fixtures, and so for the
time being part of the realty, and chattels so placed upon the
land of another as to remain only chattels personal, as, when a
son built a house on the land of his father under an expectation
that the father would devise the land to him, it was held that
the house did not become a fixture, but remained the personal
property of the son ; Wells v. Banister, 4 Mass. 513. See
Dame v. Dame, 38 N. H. 429 ; Barnes v. Barnes, 6 Vt. 388 ;
Bewick v. Fletcher, 41 Mich. 625.

Shelving and drawers, placed in and connected with a build-
ing under a license from the owner of the building — the relation
of landlord and tenant not existing between the parties — Avere
held to remain the personal property of the persons putting-
them in the building, and they did not become fixtures ; Stout

14G6 ELWKS V. MAWK.

V. Stoppel, 30 Minn. 5G ; Sluipira v. Barney, Id. r>9; Brown v.
Lillie, G Nev. 244; Hill v. Sewuld, .',3 Pa. St. 271; Kiism-H i'.
liicluirds, 1 Faiif. (Me.) 429; Pullun v. Bell, 40 Me. 'MA;
Cresson v. Stout, 17 Johns. 110; Kuyniond r. W'liitr, 7 (Dwcn
319 ; Tobias v. Francis, 3 Vt. 425.

An iron boiler placed in a buildini^ by a tenant at will, up»in
a foundation, llie ed^a's ot" tlie brick work being cemented
before the Ixjiler was placed thereon so as to keep it in ])la(e,
and an iron tank similarly placed, held not to \>c fixtures, but
that they remained personal property of the tenant ; Cooper v.
Jolmson, 143 Mass. lOS; Wolford r. Itaxter, 33 .Minn. 12;
McKeage v. Hanover Fire Ins. Co., 10 Hun 239. See s, c. Si
N. Y. 38; Sisson v. Hibbard, 7') N. Y. 042; Early v. Burtis, 40
N. J. Eq. 501.

This distinction between challels, which do or do not become
chattels real as distinguished from chattels pei*sonal, seems not
always to be carefully olwerved. See Northern Central K. K.
Co. V. Canton Co. of Baltimore, 30 Md. 354 ; Holmes v. Trem-
per, 20 Johns. 29; Wcthcrbee v. Foster, 5 Vt. 142.

As between administrator ami heir it was held, that a heavy
stove, placed by the intestate in a chimney, having no hreplace
and set on brick work so that it was doubtful whether it could
be removed without disturbing the brick work, was part of the
realty; Tuttle v. Robinson, 33 N. H. 119.

HORN V. BAKER.

HILARY, 48 GEO. Z.—IN THE KING'S BENCH.

[reported 9 EAST, 215.]

A.^ B. and C, partners and distillers, occupied certain premises
leased to A. and another, and used in common in the trade, the
stills, vats, and utensils necessary for carrying it on, the prop-
erty of ivhich stills, S^c, afterwards appeared to be in A. On
the dissolution of the partnership, ivhich was a losing concern,
it was agreed that C. and one J. should carry on the business
on the premises ; and by deed between the two last and A. it
was covenanted and agreed that A. should withdraw from the
business, and permit C. and J. to use, occupy, and enjoy the
distil-house and premises, paying the reserved rent, ^c, atid
the several stills, vats, and utensils of trade specified and Slum-
bered in a schedule annexed, in consideration of an annuity to
be paid by C. and J. to A. and his wife and the survivor ; with
liberty for C. and J. on the decease of A. and his wife to pur-
chase the distil-house and premises for the remainder of A.'s
term, and the stills, vats, ^c, mentioned in the schedule ; and
C. and J. covenanted to keep the stills, vats, and utensils in
repair, and deliver them up at the time, if not purchased ; and
there was a proviso for re-entry if the annuity were two months
in arrear. Under this, C. and J. took possession of the prem-
ises, with the stills, vats, and utensils, and carried on the busi-
ness as before; and made payments of the annuity, which after-
wards fell in arrear more than two months ; but A.^s widow
and executrix who survived him did not enter, but brought an
action for the arrears, which was stopped by the bankruptcy of
C and J., ivho continued in possession of the stills, vats, and
utensils on the premises.

1467

14G8 hoi:n v. iiAKtiu.

On a question, Whether such iitillif, vatg, and uttngil», go continu-
in;/ in pontsession of C. and J. the new partnert, and u«ed by
them in their trade in the name manner an they had been by
the former partners, of whom A. the owner watt one^ passed
under the stat. 21 Jac. 1, r. ll>, sx. 10 }f- 11, to the assiynees of
C. and J. as beiny in the possession, onltT, and <lisi>«»siti()n, of
the bankrupts at the time of their bankruptry as if|uiteil own-
ers? and nothiny appearimj to the world to rebut the presum/>-
tion of true ownership in the bankrupts arisiny out of their
possession and reputed ownership Of which reputed ownership
the jury are to judye from the circumstances) ; held,

1, That the stills which were Jiued to the freehold did not pass to
the assiynees under the words ^'ooiLs and chuttcLs in the
statute.

■2. That the vats, .fv., which were not so fixed did pass to the
assiynecx, as beiny left by the true owner in the possession,
order, and disposition (as it appeared to the eye of the world)
of the bankrupts, as reputed owners.

8. That the case wouhl hare admitted of a different consideration
if there had been a usaye in the trade for the utensils of it to be
let out to the traders ; as that iniyht hare rebutted the presump-
tion of ownership arisiny from the possession and apparent
order and disposition of them.

This was an action to recover in <huna^es the value of the
interest which the phiintiff chiinied in certain stills, vats, and
utensils, which the fii-st count of the declaration stated that
she was entitled to, subject to the use thereof hy the defendani>
durinsf her life ; and that, l)eint^ so entitled, and the defendaiii.^
well knowing- the same, they wrongfully and injuriously broke
and destroyed part, and sold and disposed of the rest. Tiie
second count ^vas in trover for the same goods ; to which the
defendants pleaded not guilty ; and upon the trial iK'fore Lord
Ellenborouyh, C. J., at the Middlesex sittings after the last
Term, a verdict was found for the plaintiff for 1000/,, subject
to the following case.

The plaintiff is the widow and executrix of her deceased
husband John Horn, who, before, and at the time of making
the indenture on the 20tli of March, 1801, after mentioned,
was a distiller in Southwark.

The defendants are the assignees of Wm. Horn and R.

HORN V. BAKEK. 1469

Jackson, who succeeded John Horn in the business of a dis-
tiller, and carried on the same until they became bankrupts,
as after mentioned. At the time of making the said indenture
John Horn held the principal part of the messuages, buildings,
and lands whereon he had carried on the business of a distiller
in partnership with Robert Horn and William Hoin, and
whereon there had been erected a rectifying distil-house, under
a lease granted to him and R. Jackson (since dead) for a term
which expired on the 30th of December, 1804 ; and he held
other parts of the premises under another lease granted to him
and the said Richard Jackson, since deceased, for a term which
expired on the 24th of June, 1805 : and he and the said Richard
Jackson, now deceased, had before held other parts of the prem-
ises under a lease for a term which expired on the 25th of
December, 1799. The above-mentioned partnership, which
was a losing concern, expired before the making of the inden-
ture hereinafter mentioned ; and William Horn, at the time of
makino- that indenture, and at the death of John Horn, was
and now is indebted to the estate of John Horn in 500^. in
respect of their partnership. By indenture dated 20th of
March, 1801, between John Horn of the one part, and William
Horn and Rd. Jackson (the bankrupts) of the other; after
reciting the said several leases, and that at the time of making
the last lease, the said Rd. Jackson (deceased) was in partner-
ship with John Horn ; and that John Horn had lately entered
into partnership with Wm. and Robert Horn for a term then
expired; and that since the expiration of the last-mentioned
lease the premises therein comprised had been used and
occupied by John, Robert, and Wm. Horn, as yearly tenants ;
and that the partnership between John, Robert, and Wm.
Horn had before the execution of that deed been dissolved by
mutual consent; and that it had been agreed between John
Horn of the one part, and Wm. Horn and Rd. Jackson of the
other part, that John Horn should withdraw from the business
as from the 1st of March then instant, in favour of Wm. Horn
and Rd. Jackson, and permit them to use, occupy, and enjoy
the said distil-house, and other the premises mentioned in the
indentures of lease, and the several vats, stills, and utensils
of trade therein or thereon, and which vats, stills, and utensils
were specified in the first schedule written under that inden-
ture, in consideration of an annuity of 600Z. to be paid to John

1470 »i«)i:N V. iiAKi:u.

11(1111, his executors, &f., (liiiiii«,' lia- lift- of liimself and VAinv-
beLh his wile (the now plaintilY) ami the life o( the Murvivor
subject to terms ixnd comlitions hereinafter expressed; uml
rfcilim,' larliier, that it had l)een a^Meetl that the debti* duo t«>
John, linlnil, and \\ 111. Horn, a.s late it^partners, and uUo all
the horses, earls, tliays, and casks, of tin- late eo-piirlnunihip
(exrcpt the i'cttn, xtillx, tiinl ut» hmHh mentioned in tiie saitl lii-jit
schedule), should be vahuMl and purihased by Wm. Horn and
Kd. Jackson; and that a valuation had U-en made ae.ordin^dy ;
by which it ait[)eared thai smh <lebls, and the value of sueh
horses, «fcc., amount to Isl")/. ; fur payment t)f which ii Uinil
had been ^nveii by Wm. Horn and lUl. Jackson to John Horn;
and that Wm. Horn and Kd. Ja«k.son, by another Imnd, had
been bouml to John Horn in /)U00/. eon«liti<»ne«l for [Miynient of
Ihf annuity of «»()()/. pt-r annum to J«thn Horn f«>r the lives of
hiiii-^clf and his wife (the plaintitT), and the survivor; he,
John Horn, in |)ursnanee of the a^Meement, and in eoiiMidera-
lion of Ihf two bonds and the covenants and aifreementw after
contained on behalf of Wm. H«>rn and IM. .buks«>n, for him-
self, his lu'iis, executors, «\:e., eoveuiinted and aj^reed with Wm.
Horn and IM. Jackson, their executoi-s, administrators, and
assigns, that they, "til ami trulif pai/iivf the rtnt't n'nerrfil by
the several recited leases, and performitui all and ifint/ular thf
covenants and aift'cfnifntu therein contained on the lessees' iind
assi<]fnees' parts, and also dii/// and reijularlif paifinij the xaid
annniti/ so seemed as aforesaid, shoidd and lawfully might
peaceablif and ijidetli/ hare, hn/d, use, oceujnf, pintnenn, and enjoj/
the xaid nieaxuai/e, tenement, distil-house, and premises thereby
(leiuised and mentioned in a certain deed-poll indorse<l on the
said lirst lease, and also the ttaid xtillx, vats, and thinijs specified
in the first schedule, during the lives of John Horn and Kliza-
bcth Horn, or the survivor, without any let, suit, «S:c., of John
Horn, his executors, &e., ov any person lawfully claiming from
him, iSiC. Wm. Horn and Kd. Jackson, by the indenture of
agreement, covenanted to [>ay the rent reserved by the leases,
and to perform the covenants. There was also a proviso in
that indenture, that, in case the annuity should he in arrear for
two calendar months, John Horn, his executors, iff., mif/ht re-
enter the disfil-house and premises, and the same with all and
everif the stills, vats, a7id thinr/s mentioned in the said schedule
have again, 7'eposses8t and enjoy as in his former eftate, &c.

HORN V. BAKER. 1471

There was also a covenant, that upon the decease of the sur-
vivor of John and Elizabeth Horn, Wm. Horn and Rd. Jack-
son should be at liberty to purchase the distil-house and prem-
ises for the remainder of the term in the leases, and the stills,
vats, and things mentioned in the said schedule. And another
covenant that Wm. Horn and Rd. Jackson should keep the
said stills, vats, and utensils in repair ; and in case they should
not purchase the same, tliat they should at the end of the
agreement deliver them up to John Horn, his executors, &c.,
in good condition, reasonable use and wear excepted. (Then
followed the schedule referred to of the different stills and
vats, numbered in order, and describing the quantity in gallons
which each would contain.) The case further stated, that Wm.
Horn and Rd. Jackson took possession of the premises immedi-
ately on the execution of the indenture of agreement, and
carried on the trade of distillers, and from time to time paid
the interest on the bond and the annuity to John Horn, who
died about four years ago, and who by his will gave all his
property to his wife, the plaintiff, and appointed her sole execu-
trix. Since (a) the death of John Horn neither the annuity
nor the interest of the bond for 1815Z. have been regularly
paid ; but the plaintiff, as she from time to time was in want
of money, and notwithstanding the annuity and interest might
not then be due, apj^lied to Wm. Horn and Rd. Jackson, who
paid her different sums on account of such annuity and
interest ; and also by her order occasionally paid sums to vari-
ous persons for her use, and supplied her with liquors and
spirits as she from time to time ordered any, so that there was
a running account between them and the plaintiff. The fol-
lowing memorandum was signed by John Horn, and indorsed
on that part of the deed in the possession of Wm. Horn and
Rd. Jackson : viz. " I the within-named John Horn do hereby
undertake and agree to accept and take 500Z. by equal quar-
terly payments instead of 600Z. for the first year's annuity
within referred to." To this memorandum there was no date,
nor did it appear when it was made. The following indorse-
ment or receipt w^as also written on the said deed, and signed
by the plaintiff as executor of John Horn : viz. " March 1st,
1802. Received of the wdthin-named Wm. Horn and Rd.

{n) AVhat follows down to the let- consent to the case after the first
ter a on the next page was added by argument.

1472 HOKN \. r.AKKi:.

Jackson 500/. lu-iiiy: one yt'iu's ammity din- fmin tlieiu tlii.s <l:iy
for till! puipost'S spcc'ilifd la-rt'iii." 'riu'ie was also tin- l<illo\v-
ing indoisenienl on the same ik'fd signed hy Kli/aU'tli Horn:
'' Marili 1st, 1S03. Received of the within-nanje<l Wni. Horn
and ltd. Jackson aOO/. U'ing one year's annnity «hie from them
this day for tlie j)nr|>oscs speciticd herein." 'I'he lirst meino
ran(hun a]>{)cared to he in the liandwriting of the st)licitor wlio
drew the (K-cd: the two hist receipts were in the liantlwriting
of ltd. Jackson. For many montlis previons to the hankrnj>tey
of W'ni. Horn and IM. .lackson the jjlaintiff found gicat ditli-
enlty in ohtaiiiiii^' money fiom them; and slie permittrd the
annuity and interest to run in arrt-ar ; an«l notnuth»tiin>liini the
name were more than two monfhx in arreur, the phiintitT did not
make any chiim to re-enter the j)remi.ses, as hy tlie dee<l she liad
tlie power to do: hut in May, !>><••'>, hrouglit an action in tliin
court asrainst Wm. Horn and Ud. Jackson to recover the arrears
of the annuity, as also to ohtain payment of the Ixmd for lHl;'>/.
and interest; to which action tliey ph'ach'd eight several pleas,
ui)on seven of which issue was joine<l : ami to the eighth plea
Kli/.aheth Horn dcmurie<l : which demurrer \\as argued, and
judgment given foi- Elizaheth Horn, and notirc of trial of tho
said issut's had hceii given at the time of the hankruptcy ; hut
in conse(iuence thereof that cause was not further pr<»ct'eded
in; and there was due for the arrears of the annuity and inter-
est on the ])ond for Islo/. at the time of the hankruptcy, alxnit
GOO/, (a). In April, iHOo, the pluintif, after her hushand's
death, renewed the leases of the xeveral premises. Wm. Horn
and Ud. Jackson occupied the premises, with the stills, vats,
and utensils thereon, and carried on the trade of distillers from
the time of executing the indenture of the 20th of .March,
1801, to their l)ankruptcy. A connnission of hankruptcy issiu'»l
against Wm. Horn and IM. Jackson on the Jtith of July, IH(M),
and they were duly adjudged hankrupts on the 2Sth; and the
messenger under the commission immediately took possession
of the demised premises, and also of the vats, stills, and utensils
then being thereon. The defendants were afterwards chosen
assignees, and an assignment of all the estate and effects of
AVm. Horn and Rd. Jackson was duly made to them: upon
which notice was given by the plaintiff to the defendants that
the several vats, stills, and utensils were the property of the

(a) See note, p. 234.

HORN V. BAKEli. 1473

plaintiff, subject to the supposed interests of tlie bankrupts
tlieiein. The things mentioned in the deed, and comprised in
the first schedule, consist of stills and vats. The (a) stills,
five in number, were set in brick-work, and let into the ground.
Three vats or worm-tubs were supported by and rested upon
brick-work and timber, but were not fixed in the ground. Six-
teen other vats stood on horses or frames made of wood, which
were not let into the ground, but stood upon the floor (c).
The vats were of wood bound round with iron : the stills were
of copper, and connected with some of the vats : other of the
vats were also connected and communicated with each other
by conductors or pipes. Three stills and vats were in the
rectifying dis til-house. There were also a great number of
other vats under the rectifying distil-house ; some of which were
standing on brick and timber, and others on horses or frames
as above : and which were connected with the vats and stills in
the rectifying distil-house. Others of the vats stood on horses
or frames as above described. All the vats in the rectifying
distil-house stood on their ends ; as did nine of those under the
distil-house : the other vats under the distil-house lay on their
sides or bilge. The defendants contending that the vats, stills,
and utensils, in the said first schedule contained, belonged to
the bankrupts at the time of their bankruptcy, have sold them
as part of the estate and effects of the bankrupts. The plaintiff
contending that the same belong to her as executrix of her late
husband, by virtue of his will (subject to the use thereof by the
assignees in right of the bankrupts during her life), has brought
this action to recover in damages the value of her interest
therein. The question was, Whether the plaintiff was entitled
to recovery ? it being agreed that if the plaintiff were so enti-
tled, the amount of the damages should be settled out of court.

This case was argued in Michaelmas term last by Burrough
for the plaintiff, and Dampier contra ; and again in this term by
Williams, Serjt. for the plaintiff, and The Attorney- General for
the defendants. The additions to the case which have been
noticed were made between the first and second argument.

For the plaintiff (after stating that the question turned on
the stat. 21 Jac. 1, c. 19, ss. 10 & 11), the attention of the court
was called to the preamble to the 11th sect, set forth in the con-

(a) What follows clown to the letter c was added by consent to the
case after the first arsrument.

1-174 ji«M.^ .. i;aki:k.

cliisinii of till- lOth; thnuf,'h it was inhuittiMl that tht* modern
cases had [»iit a cniistnictinii uj)Oii llie fiiatliij^' « laUNf In'VoikI
the particuhir mischiff ivcitcd. 'V\\v statute ivritiiij; " tliat it
often falls out that many prrson.H iH'fore thoy l»ecoiiM? iKiiikruptM
do convi'V tht'ir ^mods tt» otiifr ineii upon ^ood jonHidfialioii,
vet still «lo keep the sanie, and nre n-fmhil the un'tum thfrm/^
and i/ixpngf the mme an their own:" for remedy eiiaets tliat "if
anv person shall U'conie hankrupt, and, at sueh times us they
shall so hecoine hankrupts, shall, l)y the eonsent and permission
of the true owner and proprietary, liav*- in their /»/>*j»»-jt«iVM,
onfii; tnul >/inpoKitton, any j,n>ods or t liattels whereof tliey shall
he tu'piift'if f>//'«f/*y, and ttike upon them the *<i/»', tdterntion or ili»-
pfmltion ax owners;" in every sut h ease tlie et)mmissioners shall
have power to sell antl dispose the same for tlie In'mdit of the
creditors, »!v:e. ( JiviiiLj etTe<t to the words of the preand>le, tho
true ohji'ct was to d«'prive partieidar creditors of tlwir sjMM-itio
licM on ^oods, wlii» h having U'cn the property of the Uinkrupt,
had i)een secretly conveyed hy him to .su«h creilitoi-s, who suf-
fered him still to continu«' in possession and apjH'ar to t'.ie
world as the owner, 'i'hat provision was made in the case of
hankrupts in order to avoid the douht whirli had arisen upon
the stat. l^i KHz. c. o (u) atjainst fraudidt'Ut conveyaiu'i's t«) tie-
feat and delay cre(litors in i^eneral (and which doid)t still exists
on the statute of l^li/.ahetli )• wlietlii-i- it werr Hot coulimMJ, as at
couinion law it certainly was, to avoid tlu' convt-yance as
aujainst those only who were creditoi-s of the party at the tinu*.
Wherefore the statute of James extended tlu- provision to all
the creditors, as well those who hecame su( h afterwards ais
those who were such at the time of the conveyance. Hut still
construing the two statutes tocrether, as made in pari materitt^
many great lawyers have considen-d that the preamhle in the
10th sect, of the stat. 21 Jac. 1, c 10, controlled the enactment
in the lltli sect, and contined the operation of the statute to
cases where the property conveycil to ;i particular creditor wa.s
before that time the property of the hankrupt himself. Of
this opinion was Lord C. J. Holt, and the Court of K. I». in
L'Apostre v. Le Plaistrie (7)), and Lord C. B. Parker, and Lord
Hardtvicke in RyaJl v. RoUe (^') : though the contrary has since

{n^ S.ee Twyne's Case, ante, \6\.. \. (r) i Atk. 175, 182; and 1 Ves.

p. \, et notas. 365, 371.

(ft) Mich. 1708, cited 1 P. Wras. 318.

HORN V. BxUvER. 1475

been held in Mace v. Cadell («). Still, however, the court
will not go further than the latter case ; nor say that the statute
shall attach in every instance where a trader is in possession of
another man's goods at the time of his bankruptcy, if he were
not held out to the world as the ostensible owner by the real
proprietor, as in that case the bankrupt had been ; the true
owner having there held out the bankrupt as her husband, and
having obtained a licence for the public-house where they lived
in his name. But taking the preamble not to control the
operation of the enacting clause, still, in order to bring the case
within that clause, the bankrupts must not onl}^ have such
goods in their possession, order, and disposition at the time, hi/
the consent and p>ermissio7i of the true owner, according to the
first part of the clause, but they must also have taken upon
them the sale, alteration, and disposition of them, as owners, by
the same consent and permission ; for these words run through
both parts of the sentence : and it must appear either by the
terms of the contract between the bankrupts and the true
owner, or by evidence dehors of the nature of the property, or
of the place or circumstances of the possession, and that the
owner trusted the bankrupts with the poiver of selling, altering
or disposing of the goods as oivners ; or that having the posses-
sion, order, and disposition of the goods under such circum-
stances as might induce the world to believe that they had such
a power, the bankrupts did aetuallg sell, alter or dispose of them
as otvners. In Walker and others, assignees of Bean v. Burnell
(J), household goods and furniture, which were left by the
assignees under the first commission so long as seven years in
the bankrupt's possession ; yet having been so left for a special
bond fide purpose, in order to assist the bankrupt in settling his
affairs, and getting in his effects for the creditors; and the
bankrupt not having the disposition of the goods so as to sell
them ; were decided not to be within the statute of James. It
was admitted even in 3Iace v. Cadell, that every instance of a
possession of goods of another b}^ a bankrupt at the time of his
bankruptcy was not within the statute ; but it was said that
the cases of factors, executors, trustees, &c. were excepted cases :
but the words of the 11th clause, if not restrained by the pre-
amble, are general, and would include those which are called

(a) Cowp. 232. (6) Dougl. 317.

147C H()i:n v, hakkk.

exceptetl ciises, us wtll us iiu\ ullicis : llu*y iii<- mn, iinnion-,
exut'ptt'd 1)V tliL' stilt iitf itst'lt" in tfinis, l)Ut only hy conhtruc-
tittii lis not fulling' within the reason of it: the statute only at-
taehiiif on the possession of j(ootls hy the Umkrupt when siieh
possession is fraudulent ; where the true owner has the kmk-
rupt with tile power of selling;, altering or disposing of tlio
goods, as owner. And thou<^h, perhaps, the l)are faet of tho
possession of chattels may Ix* prumi facie evidenee that thu
possessor is the true owner, and has the power of sale, &c., tsA
owner, yet the eontrary may Ik; sliown, and that the |M)sse.«wion
of the Itankrupt was /muii Jilf, an<l eonsistmt with the rii^ht of
the true owner. A factor is intrusteil with the hi^dirst power
over the goods, the power of sale ; hut lieeuusc it is not at
owner, hut tts factor, whieh is eonsistent with his possession and
with the rights of the true owner, the cji.se is not within tho
statute. The same may be said of trustees and executors. So
liere, the hankru|)ts had " the |)ossession, ordi-r, and dis|MKsi-
tion '' of the gt)ods under the indenture, aji Ittntfen and not at
owners; and they had not the naif or alteratiun of them at all,
nor the iU»po»Uion of them a» oinifru, so as to ufTuel the projv
erty in any way, hut only the hare use of them. In some eases
the circumstances attending the |M»ssession may carry an a|>-
pearani'e to the world that the possessor has the .sale, altenition,
or disposition of the goo<ls, as owner: as where goo« Is usually
sold in a shop or warehouse are exp(>se<l to vitrw there: iind
from thence a power to sell, iVe., by the con.sent of tlie owner
who permits this to he done may Ik; fairly implied: but no such
inference can arise here, where sonje of the vats, &c., were
actually fixed to the freehold, and othei-s apiKirently so, and the
rest were used in like manner as those which were fixed, and
all of them were numbered. In this case the possession w;is at
least equivocal, so as to let in the truth t)f the ownership. It
was just as likely by the mere view of the things that they be
longed to the owner of the premises, as to the traders who were in
possession. They all formed one entire ajiparatus for distilling,
part of which was actually fixed to the f reeliold : and therefore
the bare })ossession and use of them carried no greater evidence
of title than the possession of the premises themselves. And on
this ground, Buller, J., in Walker v. Biirnell (a), held tliat the
furniture of the house left in possession of the bankrupt did

(a) Dougl. 320.

HORN V. BAKER. 1477

not pass under the statute. Wherever the contract between
the bankrupt and the true owner, to whom the goods originally
belonged, has been bond Jide, and not made for the purpose of
giving him a false credit, and the bankrupt's possession and
mode of using the property was consistent with such contract,
the case has never been held to be within the statute. In Cope-
man v. Crallant (a), though Lord Cowper considered tliat the
preamble did not restrain the enacting words of the clause :
yet he held the case not to be within it in regard that the
assignment, which was for payment of the debts of the assignor,
was with an honest intent. Ryall v. Rolle (5), the property,
Avhich originall}^ belonged to the bankrupt^ was by him mort-
gaged and conveyed at different times to several persons ; he
continuing all the time in possession. That was a fraud
directl}" within the express words of the law. In Mace v.
Cadell (c) there was direct evidence of fraud on the part of
the true owner ; she herself having taking out a licence for the
public-house, where the goods were, in the name of the bankrupt,
to whom she said she was married ; and having at first claimed
the goods under a bill of sale from him. Bryson v. Wylie (jP)
was decided altogether upon the ground of trick and fraud.
There was an open sale of a dyer's plant to the bankrupt, and
afterwards a private resale by him; notwithstanding which he
still continued to keep possession upon payment of a pretended
rent. Gordon v. The East India Company (e) was the case of
goods invested by the true owner in the name of an officer of
one of the Company's ships, as his privilege, whose property
they appeared to the world to be : and which was therefore
calculated to deceive his creditors. So in Liyiyham v. Biyys (/),
a creditor, having taken in execution the furniture of a cof-
fee-house keeper, permitted him to remain in possession of it
under a rent ; who therefore appeared to the rest of the world
to continue the owner of it in the same manner as before ;
there being nothing done to notify the change of property,
which was clearly fraudulent even within the j)reamble of the
statute. But in that case Lord C. J. Eyre^ speaking of Bryson
V. Wylie, said that, notwithstanding that decision, he could sup-

(a) 1 P. Wms. 320, 1. (d) Hil. 24 Geo. 2 B. R., cited in

(fo) 1 Atk. 1G5, and 1 Ves. 349. note («), 1 Bos. & Pull. 83.,

(/) I Bos. & Pull. 82.

14TH IIi>I:N v. liAKKl:.

pose that a dyer nii<,'lii Ik- in pussusHion of a i»lant wiiln.ul
he'iug the iv|>utiMl owium. And lu- also supimited the decismu
in Collins v. Forhen (<Oi which has Ikjuii questioned (A). Hut
a(hiuttin<,' tliat tliere were some ein-unistances «»f fraud in the
lastinentioned ease, the prineiple there estahlishe«l, whieh h;w
not lx;en (juestioned, was, that wliere the hankrupt wiw in
possession of tlie ^'oods at tlie time of his Umkrnptev, with the
consent i>f the true owntr, homt fih; for a special purpose,
beyond whi«h lie had not the rii^dit «>f alteration or disposition,
it is not within the statute. The ejise of D(trhi/ v. Smith (e)
was considered as an alwolute sale of the j^'oods hy the trustees
of the wife and children to the hushaml, whom they suflered to
continue in possession till the day iK'foie his haukruptcy with-
out his paying' the stipulated instalments. It woidd have l)eon
useless to have diseusstMl any of these cast's if the hare act «)f
possession of the goods of another hy a Iw-ukrupt at the time
of his bankruptcy were suflicient to bring a ease within the
statute. Now here, by the ti-rms (»f the d«'ed, the bankrupts
had no power over the vats, stills, and utensils in their pos^sej*-
sion, except the use and repair of them as lessees: they had not
the general, but only a special onlrr ami ilinpimition of them by
the consent of the true owner: and they had no power of $itle,
alteration, or di^pogition of them at all a» owners. But if the
consent or permission of the true owner mentioned in the first
part of the 11th rhiuse Iw not carried to the '"*<i/«', alteration, or
dixposition'^ nuntioncd in the latter part ; at least those woriU
must be intended of an itrtunl mle, alteration, or dinponition of
the things by the bankrupt, in order to bind the true owner:
for the words of the act are ''and taken upon them (the bank-
rupts) the sale, &c., as owners;" which is not pretended to
have been one by the bankrupts in this ease. Consistently
with the deed, the lessees could not even have removed these
goods from the premises demised to any other place, without
an implied breach of covenant, to be collected from the whole
deed ; for they Avere all scheduled and numbered, and let as an
entirety ; and if displaced, it could not be told how the num-

(rt) 3 Term Rep. 31G. to Mr. CuUen's observations on tli.it

(ft) By Lawrence, J., in Gordon v. case, which lie said were very .sensi-

The East India Company, 7 Term Rep. ble. Cull. Trinciples of the Bauk-

237, who now again intimated great rupt Laws, 318.

doubts of that case, as did also Lord (c) 8 Terra Rep. 82.

EUenborouQh. The former referred

HOKN V. BAKER. 1479

bers applied, and the object of numbering them would be de-
feated.

It was also objected to the plaintiff's title, that the possession
of the lessees at the time of their bankruptcy was not con-
sistent with the deed : because they were only to hold so long
as they performed the covenants and paid the annuity re-
served ; and there was a proviso for re-entry in case such
annuity was in arrear for two months : and no re-entry had
been made, though the annuity was in arrears for a longer
time. To this it was answered tliat the words of the inden-
ture whereby John Horn covenanted that the lessees " per-
forming all and singular the covenants and agreements therein
contained, &c. and also duly and regularly paying the annuity,
&c., should quietly possess and enjoy, «Scc. the premises, and
also the stills, vats," &c., were not words of condition, on the
breach of which the lessees were no longer to hold over, but
in law were only words of covenant on the part of the lessees,
for the breach of which a remedy lay upon the covenant ; as
was determined in Hayea v. Bickerstaffe (a). Then, though
there was an express power of re-entry, in case of such arrear,
yet it could not have been executed under the circumstances ;
for there was a running account between the parties ; the
plaintiff having received money on account of the annuity
from time to time, and the bankrupts having also paid bills
for her ; and this account was not liquidated. But to warrant
a re-entry there must be a demand of the precise sum due,
which could not be told b}^ the plaintiff at the time. Besides,
as in the case of rent reserved quarterly, when two quarters
have elapsed the lessor cannot re-enter for the first quarter,
but only for the last ; having slipped his opportunity for the
other after another quarter has become due ; so here the
plaintiff could only have re-entered for the last payment in
arrear. But supposing ni strictness that the plaintiff might
have re-entered, yet as it would not have been prudent to do
so, she will stand excused for waiving the exercise of an
odious right of forfeiture, against which a court of equity
would of course have relieved the lessees on payment of the
arrears : and this, ever since the stat. 4 Geo. 2, c. 28, s. 2, if the
application for relief were made within six months (5).

For the defendants, it was contended that the possession of

(rt) 2 Mod. 34, 5. (&) Doe v. Lewis, 1 Burr. 619.

1480 ii<h;n n. hakkk.

the hiiiikrupts was not eonsisU-nt witli the tlei'il ; fur by that,
ill tin- rvt'iit wliich happcMcd of the annuity falling into iirruar,
the phiintitY was eiititUil t<» mtrr and take possesNion of the
goods in (luestinii ; iiistcail of w hit h she left theni in the [mj**-
session of tlie traiU'is; and hi-ou<,dit an aiti«»n for tin* arrears,
which was (h-feated hy their liaiikrnptey. As to the dilVirulty
of iiiakin^^ a deinan<l for the precise sum U-fore re-t'iitry, the
strictness of hiw in tliat respect only appli«'s to eases of re-
entry for non-payment of rent where the (K>mand must Ik? on
the land, and not to the repossession of j;o(hIs for non-payment
of an annuity for whi( h tiiey were a security, in which case
the demand may l)e made anywhere. However, if a previotw
demand of tlu; [jrecise sum wi-re necessary, tl»e diflicully «>f
aseertaininj^ it, oecasioned hy the act of the annuitant hei-self,
would he no reason why as Utween these parties she sliould
be excused for not haviii;^ made it. If siie were entitle<| to
possession under the deed in the event whit h hap|H'ned, and
by taking the necessary measures, whatever they nught U?,
would have been in possessi«)n, tlu' suljsecjuent |M>sses,sion of
the bankrupt Wivs against the stipulations of tlie deed: and tiu8
brings the ease within Ditrhj/ v. Smith (<i), which is very like
the present in its lircumstances ; for tiiere the trustee ha<l a
right to enter and re-possess himself of the goods, if the stipu-
latetl payments were not ma<le ; and having negleeted to do so,
after defaidt made in all but the lii-st instalment, the possession
of the bankrupt was held ttt In; within the statute; though juj
between the parties to the contract the transaction wjis bond
fide, and no fraud in fact inten<led. But a<lmitting that the
possession of the bankrupts was in pursuance of the deed, it
does not follow that their possession wan not without the
statute. If this were so, every case of this sort might U? taken
out of the statute. The ])ossession of a mortgagor of goods,
is not inconsistent with his title, and yet it has nt'ver U'cn
doubted since Ri/nll v. RoUe (7>) that it was within the statute.
It is the reputeil ou)itr.s/iip of the goods in the possession of the
bankrupt which brings the case within the express words of
the statute, the avowed object of which was to defeat those
secret conveyances, by which personal ])roperty is secured to
particular creditors, while to the eye of the world it is left in
the possession, order, and disposition of the bankrupt, who by

(a) 8 Term Kep. 82. (6) 1 Atk. 165.

■ HORN V. BAKER. 1481

means of it obtains a false credit. It is now fully settled since
the case of Mace v. Caclell (^ci) that the preamble does not con-
trol the enacting words of the 11th clause of the act. But
it is argued, that the bankrupt must not only have the |j»os-
sessioti, order, and disposition of the goods, with the consent
of the true owner, but also the power of sale, alteration, and
disposition, by the same consent. Certainly the bankrupt
need not have actually sold and delivered ; for then the
question would never arise, as was observed by Eyre, C. J., in
Lingliam v. Biyijs (li) ; for the act only gives the assignees
of the bankrupt power to appropriate goods in his possession.
But the same learned Judge says, that "if a man be
reputed owner of the goods, and appear to have the 07'der
and disposition of them, he must be understood to have
taken upon himself the scde, alteration, and disposition within
the meaning of the statute." Neither could it be the mean-
ing of the statute that the bankrupt should be the true
owner of the goods, because, as Lord Hardwicke said, in Rijidl
V. Rolle (c), the Legislature has explained its sense by putting
the words true owner in opposition. to the reputed owner. Nor
could it mean that the bankrupt should have the power of sale,
^c.,hy i\\e, consent of tlie true oivner : for then his selling or
otherwise disposing of them would be no breach of the private
contract between them. In every case where any question can
arise, the reputed ownership of the bankrupt must be limited,
as between him and the true owner, by some secret stipulation
abridging the general right of disposition : and it was the very
object of the act to prevent the operation of such secret en-
gagements, which enabled traders to obtain a false credit by
means of the apparent or reputed ownership which their visible
possession of the goods of others gave them. It is no question,
therefore, in these cases what is the real contract in the deed ;
for that could not be known at the time to third persons who
were dealing with the trader. The only question which can be
made, consistently with the words and objects of the statute, is,
whether the trader in possession at the time of his bankruptcy
had the apparent order and disposition of the goods ? If to the
eye of the world he appeared to be the owner of them, or was,
as the statute calls him, the reputed owner, the case is within
the statute : though in truth there was a secret conveyance or

(a) Cowp. 232. (6) 1 Bos. & Pull. 87. (c) 1 Atk. 183.

1482 lUniS V. l;Alvl.l:.

agreement by whith the property wus made over or Hceurcil to
aiiotlier. This, iis was siiid hy linller, J., in Wulhr v. Jiur-
nell {(i), uwisl iiUviiys \k' more a <[Ufstit»n of fart tliaii of hiw.
When the fact of tlit- n-pnted ownei-ship is chsirly iMcertaiiieil,
the hiw follows of course. Kvery nuin, says Ayrf, C. .1., in
Liu;//uim V. Iii:/,'/« (/')' ^^'"* '■*^" ^' ■"**''"' ^"* ***' ^''^* rfjuittU oirner^
has incidentally the onlrr ami ilispositittn of ^'oo<ls ; ami if he
he rc[)Utc(l owner, and apiK-ar to have the order and dis|M»siiion
of them, he must Ije underst»)od to have titkt-n upon /linntrlf the
f<(i/e, order, ami dixponition, within the meaning of the statute.
And if the real owner do not take such means us may U* in his
power to prevent thi- puhlie l>eing imposed U|M)n hy su<h false
appearance, that is (he very mischief meant to lie reniedieil hy
the act : .md the hankrujtt must U- taken to have the |M>ssej»-
sion, order, and dispt»siiion of the goods hy consent «>f the
owner: and the heing in possession under suih circumstances,
from whence the onUr and disposition of the gcMuls may be
reasonably inferred, makes the reputed ownership. Now here
every circumstance of notoriety tended to show that the Lmk-
rupts were the true owners of the good.s, whether eonsiclering
the possession ln'fore the imlenture of the 80th of March, the
time and cinumstances under which the bankrupts took jiosse.s-
sion under that dvvd, the avowed purpose for whiih it was
made, or the cniitiMUcd possession and the ajiparent ownei'ship
of the baidcrupts after the transfer in the sanu* manner as l>e-
fore, Williani llnrn. one of the banki U|>ts, ha<l Ih-cu in part-
nershii) with .lolm lidin, the testator, before the transfer; they
carrieil on business jointly upon the same premises, and had a
joint use of the vats, stills, A:c., and to the eye of the world at
least the property l)elonged to the partnership, however it
might be as between themselves. Hd. Jackson had alst) an in-
terest with John Horn in the lease. The business was a losing
concern; and John Horn wishing to get out of it, appeared to
the world to withdraw himself from it; and Wm. Norn aj>-
peared to continue in possession of the premises, and of tlu'
vats, stills, and utensils for carrying on the business, together
Aviili Rd. Jackson, and to exercise the same acts of ownership
as he had done before when in partnership with John Horn.
But in fact John Horn had secretly conveyed this property to

(a) Doujrl. Ml, and rnde this noticed by J-^ijre. C. J., in iJnrihnvx v. Biggs,
1 Bos. & Pull. 89. (6) 1 Bos. & Pull. 87.

HOKX V. BAKER. 1483

Wm. Horn and Rd. Jackson, saddled with the annuity to him-
self and his wife, which was likely to ruin the trade more rap-
idly than before. But there was no notice of the change to other
persons dealing with the partnership ; the deed was kept secret
from them ; the object of all the parties being, that the trade
might be carried on by the existing partners with the same ap-
parent capital as the old firm, and that the credit of the new
partnership might not be lessened by the general knowledge of
the fact, that the goods in question were not their property.
The secrecy of the transfer was as much foi- the benefit of John
Horn as of the continuing partners ; for if their credit were
shaken, they would be less able to pay the stipulated annuity.
In fact, the bankrupts did gain a false credit b}- the possession
of the goods in (question. There is no fact of notoriety to resist
the conclusion that these were the goods of the bankrupts ; and
the only fact relied on to show that the property was not theirs,
is the secret indenture of the 20th of March, 1801, by which a
prior claim on the goods was secured to John Horn ; but such
a secret transfer is of the very species of fraud which the stat-
ute meant to guard against. The case of Bryson v. Wylie (a)
cannot be distinguished from this in principle. The bankrupt
there had the possession of the dyer's plant, but he had not paid
for it : he therefore agreed to assign it to the creditor, and to
take it again on lease from him. There was no mala fides or
fraud in the transaction between those two ; and if the interests
of no other person had been concerned, it was only just and
reasonable that the creditor should have had his secarity ; yet
that was avoided by the operation of the statute, as fraudulent
in law against the creditors in general. The case of Darby v.
Smith (J) is strong to the same point. The case of Walker v.
Burnell (c) turned as it seems on the notoriety of the goods
which were left in the bankrupt's possession continuing the
property of the assignees under the first commission : but that
is a very doubtful case. The honesty of the intent of the true
owner cannot be sufficient to protect the goods ; for according
to the report of Copeman v. Gallant in 7 Vin. Abr. 89, Lord
Cowper said, " If possession and disposition be given to a person
who becomes bankrupt ^/io?^//A no intent of fraud appear; yet,
if it give a false credit, there is the same inconvenience as if

(a) Hil. 24 Geo. 3 B. R. cited in 1 (h) 8 Term Rep. 82.

Bos. & Pull. 83. (c) Dougl. 317.

1484 li<>i:\ v. i!AKi:i:.

fniiid were iutendetl, ^v. ; aad it lu.iLleJh not whutliei il were
by hand, or only by Ufgluct, or out of u hmnour." And lhu»
was adniitteil in Burknnll v. Itoifntun (a) in the ciuse of a Uink-
riiptcy.

In tbt' course" »»1 ilic .iiL;'iiiiiiii, tiiu.t,, .1., .i.-«ki'd wnutner lin i<
was any usat^c in tlu^ trade for distillers to hire or lea.se vats,
stills, »&e., with tluir premises? To wliirli it was answered by
the defenilanl's counsel that no such usa^'e appeared; and un-
less it were expressly found by the ease, the presumption woidtl
be, that thinj^ necessary to carry on the traile were provided
by the traders themselves; and that tlie possession of su«h
thinj^s, which were of ^Mcat value, must naturally jjive nmre
credit to the distillers than the mt?re view of the spirits cUh-
tille<l, which often belon^jd to others. Lonl Klltnhorou»ih, ('.
J., also observed at the conclusion of the ar^unn-nt, that notii-
i\v^ h id been said with respect to the distinction U-tween such
of the vats antl stills as were allixed to the freehohl, and those
that were moveable, ami woidd U* the subject of trover; U-tween
which, he said, the court thouj^dit there was a material distinc-
tion ; the words of the statute of James l>einp//«0(/« nnl rhatttlt.
And upon askini; Tfie Attornt'if-Genrrul whether he meant to
insist upon the rii,dit of the assij^nees to such of tiie articles a8
were atlixed to the freehold and referrini^ him to liifall v. /^>//t^
and l)einj^ answered in the nei,Mlive, his Lordship said, that if
the rest of the court ai^reed with him in opinion as to the rij^dit
of the assignees to such of the articles as properly fell under
the denomination of goods and chattels, it would l)e better to
leave it to a refi ii-e to ascertain out of court the difference of
the valu'^ for which the verdict should Ix; entered.

Lord Ellenboroui/h, C. J., then proceeded. — The true object
of the statute 21 Jae. 1, c. 19, ss. 10 and 11, Wius to make the
reputed ownership of goods and chattels in the possession of
bankrupts, at the time of their bankruptcy, the real ownership
of such goods and chattels, and to subject them to all the debts
of the bankrupt; considering that such repute<l ownership would
draw after it the real sale, order, alteration, and dis[)Osition of the
goods. The stills, it appears, were fixed to the freehold ; and as
such, we think, would not pass to the K\nkruj)t's assignees under
the descriptions of goods and chattels in the statute. Hut as
to the vats aud utensils, there is nothing in the case to rebut the

(a) Prec. in Chan. 2G7.

HOEN V. BAKER. 1485

reputed ownership following the possession of the bankrupts
after the dissolution of the old firm, when the business was con-
tinued to be carried on by the bankrupts alone, in the same man-
ner as it followed the possession of the antecedent partnership
when the trade was carried on by John, Robt., and Wm. Horn.
Before the deed of the 20th March, 1801, though John Horn
might have had a priority of claim to the stills, vats, and uten-
sils, as between him and his partners ; yet to the eye of the
world the apparent ownership of them was in the partners,
John, Robert, and William Horn. After the deed John de-
mised these things to Wm. Horn and Rd. Jackson, who con-
tinued to carry on the trade after he had retired from it, find-
ing it to be a losing concern ; and instead of reserving a rent,
he reserved an annuity payable to himself and his wife and the
survivor of them, with a liberty to the new partners to purchase
these articles on the death of such survivor. Under this asrree-
ment Wm. Horn and Richard Jackson continued in possession
of the property, carrying on the trade in the same manner as
was done before ; and to the eye of the world the property of
these goods appeared to be vested in them in the same manner
as it appeared to be in the former partnership. As between
the parties to the contract, the new partners could not, indeed,
sell, alter, order, or dispose of the j)roperty but according to the
provisions of that deed : but as to the world in general, they
appeared to have the same right over it which the former part-
ners had. Had they not then the reputed ownership ? If, as in
some manufactories, where the engines necessary for carrying
on the business are known to be let out to the several manu-
facturers employed upon them, there had been a known usage
in this trade for distillers to rent or hire the vats and other
articles used by them for the purpose of distilling, the posses-
sion and use of such articles would not in such a case have car-
ried the reputed ownership. But in the absence of such a
usage, there is nothing stated in the case which qualifies the
reputed ownership arising out of the possession and use of the
things in their trade. The world would naturally give credit
to the traders on their reputed property ; and the person who
permitted them to liold out to the world the appearance of their
being the real owners ought to be answerable for the conse-
quences, and was so intended to be by the statute. For some
time it was vexata qucestio whether the preamble controlled the

14sn ii(_)1;n \. i;\Ki;i:.

eiiiictinj^ wolds, so iis to L-oiitiiie tlie opfiiiticiii of tin* stiitut(> to
casus where the iKinknipt was the ori<,Miial owner of tin* I»««>|>-
eity coiiveyeil liy him to the |>aitieuhir «Te(lilor ; but the eiia«*t-
iu<r wolds have been lon<; liehl not to lie so eontrolled. lien*,
in fact, the hankiiipts were only lessees of these j;oo<Ls : hut
that was a seeiet known only to the parties theniselvi's ; and
iKjthiiiL,' a[)i)eare(l to teach the world that the JKinkrupi^ eouhl
not I)iiiil the property to the full extent of it. This is a owe
th(!M which comes witliin the fair constnution <tf the enacting
words. Tlie case of Bri/xnn v. Wi/lit- la'ars stroni,'l\' on the
present; for tli;it was not the ease of a inortj^ajjor keepinj^ pos-
session of ^'oods, as mi^^dit he supposed from the note of what
was said hy Lord MinixfoUl : hut the plaintitT, who was tlie
orirrinal owner of the plant, iimiin^ that SinijKSjui, to wlnun he
had sold it on the security of two promiss<MV notes, was not able
to pay tlie notes when due, agreed to take ba«k the plant and
<^'ive uj) the notes, and to let the plant to Sim[>son at a rent:
under which agreement Simpson continued in pos.session of it
up to the time of his bankruptcy. Mr. Justice liiiUer there
distin[(uislied the case from that of a banker or faet<»r who by
the course of tratlc nuist have the gt>ods of other people in bin
possession ; and thcrcfori' it ilid not hold out a false er«'dit to
the world, lie meant therefore to say, that where the pos.ses-
sion did hohl out a false credit to the w(uld, there the statute
would follow it, and attach upon the goods. And the eases of
Mucr. V. CiuhlL and Lini/hnm v. Bii/i/x, are authorities to the
same [)urpose. The princii)le to Ik- deduced from all <»f tiieni
is, that where the n-putcd ownei*ship of tlie goods in the trailer
is permitted to be held out to the world, it shall, with respt-ct
to the world, be considered as the real owiwrship. I dt) not
enter into the ([uestion whether the bankrupt's possession were
consistent with the deed: becausi- that would only apply to the
time after which the plaintitY might have re-entered for non-
payment of the annuity. Her not doing so might, perhaps, l)e
argued as more distinctly showing her intention to exhibit the
ap[)arent ownership of the l)ankruj)ts to the world: but I lay
no stress on it: for, in my view of the ease, however consistent
their possession might have been with tiie deed, it would only
have shown that the deed itself was the fraud which the statute
meant to guard against. The principle is. that in all ca.ses
where, by the consent and permission of the true owner of

HORN V. BAKER. 148T

goods, a trader in possession has the apparent ownership, and
incidental to that the order and dis])Osition of them ; and no
other circumstance appears to control such apparent ownership,
and show that the trader was not the real owner ; the true
owner permitting the trader to exhibit this appearance does it
at his peril.

Grrose, J. — The case of Mace v. Cadell has put a construc-
tion upon the statute, which has ever since settled that where
the real owner of goods suffers a trader to have the reputed
ownership, so as to have the apparent order and disposition of
them, and the trader becomes bankrupt, the statute gives the
property to the assignees for the benefit of the creditors. I
only doubted whether the stills which were fixed to the free-
hold would pass under this statute ; but it is now agreed that
they do not. But with respect to the other articles, it is im-
possible to distinguish this case in principle from the current of
those which have been decided, which have gone upon the
ground, that where the real owner enables a trader to acquire
credit by having possession, and apparent order and disposition
of goods with respect to the world, he does in effect permit such
trader to take upon himself, and he has with respect to the
world, the apparent sale, alteration, and disposition of the goods,
wi'thin the meaning of the statute.

Laivrence, J. — The question in these cases, as was observed
by Mr. Justice Buller in Walker v. Bm-nell, is rather a question
of fact than of law. And therefore it seems more proper in
such cases to leave it to the jury to say whether, under the cir-
cumstances, the bankrupt had the reputed ownership of the
goods at the time ; for if the true owner suffer a trader to have
the reputed ownership of goods left in his possession, and be-
come bankrupt, the statute says that the property shall go to
his assignees. In this case, therefore, we are rather called upon
to consider, as upon a motion for a new trial, what conclusion
a jury should have drawn from this evidence, than to consider
a dry question of law. The facts stated are, that one partner,
upon retiring from business, leases to others who continue it
(one of whom had been in partnership with him before), cer-
tain stills, vats, and utensils proper for carrying on the busi-
ness, and which had been used by the former partners. The
new partners become, in consequence, to the world the ap-
parent owners of the property. It may happen, from the coursa

1488 H(»i:n v. iiaki;i:.

of certain trades, that masses of mai-hinery are let out by the
owners to the nu'chiinics imij^m^'imI in tht-ni, and the notoriety of
such a usage in the trade nuiy rebut the [)resuin[»lion of owner-
ship which woukl otherwise arise from the jHissession ; l>nl in
general the possession of utensils of trade must Ik- taken to Ije
by the owners of them. And 1 agree, tliat nothing turns upon
the question whether or not the possession of the bankrupt-s in
this ease were consistent with the deed under wiiich they
claimed from John Horn: for the very object of the statute
was to prevent the true owner from enabling another to hold
himself out to the world as sucli, and thereby gjiin a false credit ;
and this being a secret deed, the world could know nothing of
its contents. It was pressed in the course of the lirst argument,
that the reputed ownership mentioned in the statute nitisl l)e
understood where there was a power «>f sale confided to the
bankrupt by the true owner ; and reference was made to the
words of Lord Manxfuhl in Mace v. Cadfll, that the statute di<l
not extend to all possible cases where oiu; man had anotlu-r
man's goods in his possession, as the case of factors, &c., who
have the possession as trustees, &c., to stll for thf uxc of their
principal: "but the goods must be such as tlie party suffei-s the
trader to sell ox his own.'' Hut this last ex[)ression was evi-
dently used in contradistinction to tiie case of factors, &c., who
sold for other persons and not tor themselves. And he couhl
not have meant to lay it down generally ; for that was not the
case of a sale : but the facts there were, that the owner let the
bankrupt into her house, where he passed as her husband: but
she never gave him the power of selling the goods, and he
never had sold them ; yet by treating him as her husband she
had given him the reputation of being the owner of the goods;
which was held to bring the case within the statute. As to the
case of Bri/aon v. Wi/Iic, on which my Lord has observed. Lord
Mansfield certainly considered the whole as a trick and con-
trivance to evade the statute: and what was said by Mr. .Jus-
tice Buller goes the whole length of our opinion in this case ;
that a factor, who must in the course of his business have other
persons' goods in his possession, does not thereby gain a false
credit; but that where the conduct of the true owner enables
another in whose hands the goods are, to hold out to the world
the reputation of ownership, he thereby gives that other a false
credit to the extent of the property so confided ; for which the

HOKN V. BAKEK. 1489

statute meant to make him responsible. It is often a question
of fact, whether the possession of goods do hold out a reputed
ownership in the possessor, as in the case of furniture in lodg-
ings. In the present case the opinion which we have formed
from the facts stated will make it necessary to inquire which
of these articles are fixtures, and which are not : and for the
value of the fixtures when ascertained, and be}ond that, for the
damage which may have been done to the house in removing
the fixtures, the plaintiff will be entitled to recover.

Le Blanc, J. — The question is, whether the bankrupts hav-
ing obtained the reputed ownership of tlie moveable utensils of
the trade by possession of them before and at the time of the
bankruptcy, acquired the real ownership by the statute for
the benefit of their creditors ? I lay out of consideration the
question of re-entry of the plaintiff : for I do not think that it
makes any difference in this case. This decision will only be
an authority for a case where the bankrupts were in possession
of utensils necessary for carrying on their trade under a lease ;
and where there Avas no usage of the trade for the trader to
have such utensils let to him on hire. Wherever such a usage
of trade may prevail, the case may deserve another considera-
tion. I must take it upon the facts here disclosed, that John
Horn was the owner of the utensils in question before the deed
of March, 1801 ; though that fact is very clumsily stated in the
case : the court, however, considers that by some means or
another, which do not distinctly appear, these utensils were
the property of John Horn ; and he demised them to the bank-
rupts, who were to carry on the trade after he withdrew from
it ; and without these articles he could not have carried on the
trade ; and there is no usage in the trade for letting such
utensils. The question then is, whether under these circum-
stances, the bankrupts had the possession, order, and disposition
of the goods by the consent of the true owner ? I think they
had. For though there are many exceptions, as in the case of
factors, bankers, and others who are known to have the goods
of other persons in their possession ; none of wliich, it is true,
are expressly excepted in the statute ; yet the ground of all the
exceptions has been, that the possession of such and such de-
scriptions of persons did not carry to the understanding of the
world the reputed ownership. The same rule might extend to
furniture let with a house, and perhaps even to furniture let

1490 IIOIIN S. liAl^l.i;.

without tlic house to h«' usimI theiu, wliere Hiu-h letting^ were
usuiil ; ;iii(l, hy :i parityof reason, to utfiisils of tnuli* usually
let to the tiiuk'is ; U'ciiuse possession in su«h cast's wouhl not
carry the reputed ownership of tlie property, ami wouhl not
impose on the worhl a false appearance of property in the
possessor.

The verdict to Ihj entered for the plaintiff for the
value of the fixtures only, anil the daniaj^e done
in removing them.

Onf. of the points docldod in tills rase, viz., that Axtureii, such ns ilu' stills
in tin- trxt, arc not •yoiMls nnd cliattfls," within tin* nit-nnln:; of tin- Itnnk-
rnpt Act, so as to pass to tlu' a.ssi;;nfrs [or now to tin* trnstf-j an ^immIs Iq
tlur ordtTln;; or disposition of tin* bankmpt, has Iw-vn aninm-d in srvvral
sul)si'(pK-nt casi's, [and llu' coursf of hankrnptry Uxl^latlon appear* to have
made no iliHeronce in this respect, thon;;h sonic complexity arises from the
fact that in the Bills of Sale .Vets, both that of 1854 (17 & IM Vict. c. 36),
now repeiiled. and that of 1h7« (41 i 42 Vict. c. IM). Oxtnres an* iiiclnded In
the desij^nation personal chattels, sec ss. 4, o & 7, and untf. p. 22.'»J.

In Clurk- V. ('nnrn»hiitr, ;j H. & .\i\. so4, the decision of the court was
ex|)ressly fonnded on the anthorlty of Jlnrn v. Ilikrr. In Cintmheg v. JUau'
mmit, 't H. & Ad. 7*2, it was held, that a steani-enyine altlxeil to the fr»'ehohI
for the pnrpose of working; a «olliery. and t«> Iw used hy the leii.int dnrint;
his term, the property renialnin^ In the landlonl. w<iuld nc»t pass to tin- ten-
ant's assignees. " Tlie steam-engine," saUl Tarke. .1.. •• If alllxe«l to the free-
hold, clearly docs not pass to the a.sslj;nees, In-canse It does n«»t come within
the description of ' goods and chattels," in «*• (1. 4. c. HI, s. 72. This was deter-
mined in the case of //«>•»( v. Ihiktr, antl since that case, as far as my experi-
ence goes, I never knew that any distinction was made between such tlxtnres
as would be removable between lamllord and tenant, and such as would not."

In linijdU V. M' Mirhml, 1 C. .M. & H. 177, the .same iloetrlne was again
atlinned and acted upon by the Court of Kxche<|ner. In that <-ase, a ten-
ant for years, who had taken the fixtures at a valuation from his landlord,
mortgaged the term and fixtures, and afterwanls became bankrupt; they
were held not to pass to his assignees. •• The real nature of the tenant's
interest," said Parke, B., " In this case Is, that he hatl a right to remove the
fixtures during the term : that interest has l)een held sufilcient to enable the
sheritt'to seize them under a. fi. fn.; but IIi>ru v. Baker decides that they arc
not ' goods and chattels' within the meaning of the clause as to the order and
disposition of the bankrupt. The nason uf thin is, that fith rei/anl to real
propcrtij the jwssession is considered as nothing, hut the title nnhj is Imtked to."

In Hallen v. liunder, 1 C. M. & R. 2(56, cited in the beginning of the last
note, the court thought that fixtures could not properly be denominated f/onds
in an indebitatus count, though their value might be recovered in a count for
fixtures bargained and sold, [and see Lee v. (Jaskell, 1 Q. B. D. 700]. .Vnd In
Minshnll v. Llo>id, 2 M. & W. 4.^0, Parke, B., said. " I assent to the doctrine
laid down in Coombrs v. Beamnont. and Boi/dell v. .y'Mirhail. that sucli fix-
tures are not goods aud chattels withiu the muauiug of the bankrupt law,

HORN V. BAKEK. 1491

though they are goods and chattels when made such by the tenant's severance,
or for the benefit of execution creditors."

In Trappes v. Barter, 3 Tyrwh. 603, 2 C. & M. 183 (which is said by Parke,
B., in Minshall v. Lloyd, 2 M. & W. -iSO, to have been doubted), trading fix-
tures were held to pass to the assignees of certain bankrupts, as part of
their propertj', and the assignees having severed and removed tliein, it was
held that a mortgagee of the premises (the mortgage deed having been de-
cided by the court not to convey these fixtures) could not maintain case
against them for injury to his reversion. This decision, it will be seen, is
not at all at variance with Horn v. Baker. Undoubtedly if the fixtures did
not pass by the mortgage deed, the assignees [or, now the trustee] would
take them ; and whether as personal estate or not seems immaterial. See the
note at the end of the report of Trappes v. Uarter, 2 C. & M. 183; [the obser-
vations on this case in the judgment in Walmsley v. Milne, 7 C. B. N. S. 133] ;
Pirn V. Grazebrook, 3 M. & G. 863; and Thompson v. Pettitt, 10 Q. B. 101.

It is conceived that a personal chattel fixed to the freehold in order to the
more convenient use of the chattel as such, as was the case with the machine
in Hellawell v. Eastioood, 6 Exch. 295, M'ould not be within the above-mentioned
exception of fixtures from " goods " in the reputed ownership section of the
Bankrupt Act.

[In Ex parte Tweedy, 5 Ch. D. 559, a liquidating debtor Avho was assignee
of a lease deposited with certain ])ankers by way of equitable mortgage the
instrument whereby the lease had been assigned to him, which also contained
an assignment by distinct words of certain machinery and trade fixtures for
a separate consideration. The mortgagees had suflered the bankrupt to
remain in possession of the fixtures. The point actually decided was, that
without a memorandum duly registered as a bill of sale, the deposit was
invalid against the trustee qua the fixtures; but Bacon, C. J., expressed an
opinion that had the objection based upon the Bills of Sale Act failed, the
fixtures and machinery would have passed to the trustee as being in the order
and disposition of the debtor, with the consent of the true owner.

Where a portable steam-engine was mortgaged by the owner, but left by
the mortgagee in the possession of the mortgagor, who lent it on hire to a
third person, and became bankrupt, it was held that the engine passed to the
mortgagor's assignees, under the reputed ownership clause of the 12 & 13
Vict. c. 106, although the chattel was not at the time of the bankruptcy in
the actual possession of the bankrupt, but was by his permission in the
actual possession of the person to whom he had lent it. Hornsby v. Miller,
I E. & E. 192; see also Fresliney v. Carrick, 1 H. & N. 653.

The question whether goods are in the order and disposition of a bankrupt
by the consent of the true owner is a question of fact, not of law : Acraman
V. Bates, 2 E. & E. 456; Ex parte Emerson, 41 L. J. Bey. 20; and is to be
determined by taking all the circumstances into consideration, such, for
instance, as the custom of a particular trade; but the knowledge or igno-
rance of an individual creditor, as to the ownership of goods, is not material :
Ex parte Watkins, re Couston, L. K. 8 Ch. 520; Ex parte Vaux, L. E. 9 Ch.
602; see also Ex parte Lovering, L. R. 9 Ch. 621. But the custom must be
such that the ordinary creditors of a debtor must be pi-esumed to have known
it: Ex parte Powell, 1 Ch. D. 501, C. A. As to what evidence of custom is
sufficient, see ibid. ; Ex parte Hattersley, 8 Ch. D. 601. As to the custom of
hiring furniture by hotel keepers and others, see Craiocour v. Salter, 18 Ch.
D. 30, 51 L. J. Ch. 495 ; Ex parte Brooks, re Fowler, 23 Ch. D, 261 ; Ex parte

1492 HOllN V. llAlvl.K.

Turquand, re Parker, 14 Q. B. D. Oao, 54 L. J. Q. B. 242. Wlu-ro the true
owners liavc done all in their powiT to obtain posaes!*ion of their property,
the presumption of their consent is therehy rebutted : A'r jKirt" X. H'. Bank.
L. 11. 15 Eq. Ot); Kx parte Ward, L. K. 8 C'h. 144; and see AV /»art«; Montayue,
1 Ch. D. .">54, C. A.; Ex parte I'hillips, re EsUck, 4 I'h. 1>. 4'Jt;.]

The case of Ilnni v. linker is a iiscfnl one on account <»f tin- llyht thrown
by the discussion in it on the construction of the reputi-d owiit-r^hlp clausi- In
tlie Bankrupt .Vet. At the time of the ilecisioii in tin- prlm-ipal cast-, that
suljject was K'>verned by 21 .lac. 1, c. I'J, ss. 10 and 11. which wrre at first so
little acted upon, that no case occurretl In whirh their opi-ration wa.H «lls-
cussed for upwarils of a century. The former of these two sections Is a
more recital made liy a misprint into a separate section, and yave rl.ne to
sonic doubt, in consei|Ucnce of its Ijcini; narrower than the enactment, so
that it ai)parently a])plied only to property which had once i*een the bank-
rupt's; and it wjus for some time thou<;ht that such property only was
included in the eleventh section, an itlea whicli the analogy to the statutes
rcspectiui; fraudulent conveyances appeared to countenance. These doubts,
however, were removed l)y Mace v. Cadill, ("owp. 2:i2 ; and the ubnoxloUM
recital, winch was onntted in G Geo. 4, c. I'J. s. 72, and succeedlnc statutes,
[is also omitted in 4(J & 47 Vict. c. 52 (The Bankruptcy Act. 1KH;{), h. 44, by
which the subject is now ;;overnetl. That section like the corresponding; .sec-
tions of former enactnu-nts. is with some dltferences to be noted hereafter,
substantially identical in form with the enactment <>f .lames, the decisions
upon which are consc<|Uently f«u- the most part autiiorltles on the construc-
tion of tlie present law.

Clinses in mtion, however, other than trade debts an* expressly excludetl
from the operation of the present as from the late enactment, '.Vl &. '.V.\ Vict.
c. 71, s. 15. .^Iiares in a company were lield not to be rhnsis in action within
this exception: Ex parte Union Hank of Manchester, re Jackson, L. U. 12 Kq.
354; a decision which was followed by the Court of Appeal, Fry, L. J., dis-
sentinjr, in Colonial Bank v. Whinneij, decided under the Act of 1H,S,3. 30
Ch. I). 2til ; 55 L. .T. Ch. 585. On appeal, however, tlie House of Lords
reversed this decision, and held that such shares were " thinirs in action," 11
App. Ca. 42fi. See al.so Ex parte Harry, L. K. 17 Eq. 113. A debenture of a
company is a chose in action, Ex parte liensbenj, 4 Ch. I). 085; so is a |»ollcy
of insurance. Ex parte Ihhetson, 8 Ch. 1). 519. As to what were debts due
witliin the section, see Ex parte Kemp, re Eastnedi/c, L. U. It Ch. 383.

Moreover, now as under the late Act (ss. 15, 17), property In the reputed
ownership of the bankrupt vests in the trustee upon his appointment (see s.
54), without an order of the Court, which was necessary before the statute
of 1S69], see Ileslop v. Baker, 6 Exch. 740.

[The property dealt with by the reputed ownership clause of the present
enactment is thus described: — "All goods" (which by s. 108 includes "all
chattels personal") " being at the commcucenient of the bankruptcy in the
possession, order, or disposition of the bankrupt, in his trade or husiness, by
the consent and permission of the true owner under such circumstancts that
he is the reputed OAvner thereof ; provided that things in action other than
debts due or groicing due to the bankrupt in the course of his trade or busi-
ness, shall not be deemed goods Avithiu the meaning of this section " The
words in italics are new.

The words " in his trade or business," which are substituted for the words
" being a trader," of the late act, limit the operation of the clause, see Ez

HORN V. BAKER. 1493

parte Lovering, 24 Ch. D. 31; 52 L. J. Ch. 951; Ex parte Nottingham, dx.,
Bank, re Jenkinson, 15 Q. B. D. 441 ; 54 L. J. Q. B. 601 ; Colonial Bank v.
Whinney, supra, though the introduction of tlie words " or business " extends
it to a class of persons who not being traders were not covered by the former
enactment; see as to what is a trade or business, In re Wallis, ex parte Sully,
14 Q. B. D. 950.

The words of the former section " of which he lias taken upon himself tlie
sale or disposition as owner " are omitted. Goods left with tlie bankrupt on
sale or return, Avere held not to come under the former clause until he had
exercised his option of keeping them: Ex parte Wingfield, in re Florence, 10
Ch. D. 591.

So of goods consigned by a manufacturer to an agent for sale at an advance
to be fixed by the agent and retained hy him, he guaranteeing the accounts,
were held not to be in the reputed ownership of the agent : Ex parte Bright,
re Smith, 10 Ch. D. 566.]

Although fixtures, as we have seen, [were] not within the meaning of
the reputed ownership clause, all personal chattels [fell] within it. Ships,
Stephens v. Sole, 1 Ves. 352; Atkinson v. Maling, 2 T. li. 462; Hay v. Fair-
bairn, 2 B. & A. 193; Monkhouse v. Hay, 2 B. & B. 120; unless, in the case of
transfers by way of mortgage, such transfers [had] been registered before
an act of bankruptcy, 17 & 18 Vict. c. 104, ss. 66-75 ; [Choses in action,
which are now expressly excepted;] Furniture, Lingham v. Biggs, 1 B. & P.
82 ; Utensils of trade, Lingard v. Messiter, 1 B. & C. 308 (except, perhaps,
when, as hinted in the principal case, there [was] a usage to demise them to
the trader), [were] all of them, if in the possession, ordering, or disposition
of the bankrupt, as reputed owner, with the consent of the true owner, at
the time of his bankruptcy, [held to] pass to his assignees, by virtue of the
12 & 13 '*ict. c. 106, s. 125.

[A dormant partner's share of partnership goods was held to be within
that section, Reynolds v. Boicley, L. R. 2 Q. B. 41, 474; but a share in a part-
nership being a chose in action would be excluded from the operation of the
present Bankruptcy Act : Ex parte Fletcher, 8 Ch. D. 218.]

In Gibson v. Overhury, 7 M. & W. 555, a distinction was drawn between the
actual paper, or other material on which a contract is written, and the benefit
of the contract itself, and in that case a pledge was holden sufficient to pass
the paper on which a policy of insurance was written, although, for want of
notice to the office, the right to the money insured remained in the assignees
of the bankrupt. See also Belcher v. Campbell, 8 Q. B. 1 ; [Green v. Ingham,
L. R. 2 C. P. 525, where Gibson v. Overbury was distinguished] and as to
whether goods mortgaged by a trader before his bankruptcy, but in the hands
of the sheriff under an execution against the bankrupt, can be considered to
be in his order and disposition with the consent of the true owner, see
Fletcher v. Manning, 12 M. & W. 571.

[The doctrine of reputed ownership applies only to goods in the sole pos-
session of the bankrupt as sole reputed owner, Ex parte Barman, L. R. 8 Ch.
51 ; Ex parte Fletcher, 3 Ch. D. 518 ; but goods may be in the order and dis-
position of one partner " in his trade or business," although his business is
that of the partnership, and the goods are assets of the firm, Colonial Bank
V. Whinney, 30 Ch. D. 261; 55 L. J. Ch. 585; where shares bought for part-
nership purposes and with partnership funds were held to be in the order and
disposition of the partner in whose name they were registered. The judg-
ment of the C. A. on this point does not appear to be afiected by the subse-

l-i'.t4 Ilnl;N v. I'.AKKi:.

qiu'iit reversal of their (U'clsloii upon otluT t;r<>iin(l.s by the IIouho of I^rtU,
11 .\\>l>. <u. 42t;. As to till- -- npimrnit poss«-?i«.liin " uihIit the HllU *»( Saltj
Act, 1H,"»4, of OIK' of two joint iiiukcrs of a hlU of haU', hee Ar piirtr Jtruttn, 9
Ch. I). ^M'J.

It iiuiy be observed here that Hxtures were comprised within the words
"personal ehaltels " as used in the Bills of Sale Act, 1H54 (17 i IH Vict,
c. 3C). These words were defined, by » 7 of the act, to mean " jjimkN, furni-
ture, ///•^h/vji, and other articles capable of conipleti* transft-r by tiellvery."

Ti>e Hills of Sale Act, 1H7H (41 i VJ Vict. c. :Jl), also Includes tlxtures, hut
in u limited sense, as detlned by the act, under the desijrnation pcrHonnl eliat-
tels, and contains provisions dealln;; with *lil11<-tdties which arosr in reference
to this (piestlon under tin- forim-r enactment. (See the notes to KlfeM v.
Mcvpi', ante.)

It also, by s. 'JO, excluded from the operation of the reptittMl ownership
clauses of till- Hankruptcy Act, jjocmIs comprised in a bill of sole, tluly reKi.n-
tered in compliance with Its provisions, thereby altering the law as laid down
in Iliihjir V. Sfi'ii", 2 E. & E. 472, ami otln-r cases decided under the fitnm-r
statute, but tliat section has been repealed as to all bills of sale eXreutetl
after the Isl Novemlier. 1SH2, by the Dills of Sale Act, 1«M2, and the law In
thus restored to its former footlni;; see A"r parlf hunl, re ('hupiiU, 23 Cli.
1). 40'.», .-,2 L. J. Ch. M02; Stri/l v. Ihmiftl, 24 fh I) 2l0. .Vl L, .1 Ch. 341.

As to the ditlerence between reputetl ownership and •■ apparent po.H.He.sslon "
under the Bills of Sale Acts, see Ex parte Satiunal, Jkc, Asturance Co., rt
Frnncia, 10 Ch. D. 40a.]

WAIN V. WARLTERS.

EASTEE. — U GEO. 3.
[reported 5 EAST, 10] (a).

No person can., hy the Statute of Frauds, he charged upon any
promise to pay the debt of another, unless the agreement upon
tvhich the action is brought, or some note or memorandum thereof
he in writing; hy which word agreement must he understood
the consideration for the promise, as ivell as the promise itself.
And therefore ivhere one promised in writing to pay the deht of
a third person, without stating on what consideration ; it ivas
holden that parol evidence of the consideration ivas inadmissihle
hy the Statute of Frauds ; and consequently, such p>romise
appearing to be without consideration upon the face of the
written engagement, it was nudum pactum, and gave no cause
of action.

The plaintiffs declared that at the time of making the promise
after mentioned they were the indorsees and holders of a bill of
exchange, dated the 14th of February, 1803, drawn by one
W. Gore upon and accepted by one J. Hall, whereby Gore
requested Hall, seventy daj^s after date, to pay to his. Gore's
order, 56/, IGs. Qd.\ which bill of exchange Gore had before
then indorsed to the plaintiffs, and which sum in the bill men-
tioned was at the time of making the promise by the defendant
due and unpaid. And thereupon the plaintiffs, before and at
the time of making the said promise by the defendant, had

(o) [Now by s. 3 of the Mercantile guarantee need not appear upon the
Law Amendment Act, 1856 (19 & 20 face of the written engagement. See
Vict. c. 97), the consideration of a jwst in nota.~\

1495

14'J0 WAIS- v. WAICLTKUS.

retained one A. as their attorney to sue (iore and Hall resjK'c-
tively for the recovery «>f the said sum so due, A:e., \vl»ereof tlio
defen(hint, at the time of his promise, &c., liad notieu. And
thereupon, on the iiOth of April, 180:^, at, &c., in t'oni$iileration
of the j>n'>iiisis and that the jttttinfiff'H, at the instance of the
(U'fendant, iroii/t/ f'i>rf>ear to j)n)ceed for tlie recovery of the said
;")»;/. lii.v. •;</., he, till' dtfen<hint, undertook and promised the
pliiintilTs to pay them, \>y half-past four o'clock «)n that day,
T)!)/. iind the ejpenxex which had then heen inrurml hy iIhmu <'/i
the xdiil hill. riie plaintifl's then averre<l that they di<l, uithin
a reasonahle time after the d»>fcndant's promis«>, stay all pro-
ceedings for the recovery of the said deht, and have iiitherto
forfinrne to proceed for the recovery thereof; and that the
expenses hy them incurred on the said hill at the time of
making the [)romise hy the <lefendant, and in resjM-ct of their
having so retained the siii<l A., and on account of his having,
before the defendant's said pr«»mise, drawn and engrossed certain
writs called s|tccial capias, against (ion* and IhtU respectively
on the said hill, amounted to •201., of which the difcndant had
notice: yet the defendant did not, at half-piust four o'clock on
that day, \'c., nor at any time U'fore or since, pay tiie said sum
of 5t>/. and the said ex})enses incurred, *.^c. There was another
special count, charging that the reiusonahle expenses incurred
on the hill were so iiiiich. which the defendant had refusc<l to
j)ay. And the connnon money counts.

In support of the undertaking laid in the declaration, the
plaintilTs, at the trial at Guildhall, produced the written engage-
ment signed hy the (h'fcndant, which was in tln'se words:
"Messrs. Wain and i\K, I will engage to pay you hy half past
four this day, fifty-six pounds and expenses on hill that amount
on Hall. (Signed) .Inn. Warlters (and dated). No. 2, Cornhdl,
April 30th, 1808," Whereupon it was objected, on the part of
the defendant, that though the promise, which w;vs to pay the
debt of another, was in writinr/, as re([uired by the Statute of
Frauds, yet that it did not express the ron»i deration of the
defendant's promise, which was also required by the statute
to be in \yriting; and that this omission could not he supplied
by parol evidence (which the plaintiffs proposed to call in order
to explain the occasion and consideration of giving the note);
and that for want of such consideration appearing upon the face
of the written memorandum, it stood simply as an engagement

WAIN V. WARLTERS. 1497

to pay the debt of another without any consideration, and was,
therefore, nudum pactum and void. And Lord Elleyiborongh^
C. J., upon view of the Statute of Frauds, 29 Car. 2, c. 3, s. 4,
which avoids any special promise to answer for the debt of
another, " unless the agreement upon which the action shall be
brought, or some memorandum or note thereof, shall be in
writing, and signed by the party to be charged therewith," &c.,
thought that the term agreement imported the substance at least
of the terms on which both parties consented to contract, and
included the consideration moving to the promise, as well as the
promise itself: and the agreement in this sense not having been
reduced to writing for want of including the consideration of
the promise, he thought it could not be supplied by parol evi-
dence, which it was the object of the statute to exclude ; and
therefore nonsuited the plaintiffs. A rule nisi was obtained in
the last term for setting aside the nonsuit and granting a new
trial, on the ground that the statute only required the proinise
or binding part of the contract to be in writing, and that parol
evidence might be given of the consideration, which did not go
to contradict, but to explain and support the written promise.

Grarrow and Lawes showed cause against the rule. — The
question is simply this. Whether parol evidence can be given of
an agreement which the Statute of Frauds avoids, unless it be in
writing ? The words are, " that no action shall be brought
whereby to charge the defendant upon any sj)ecial promise to
answer for the debt, &c., of another person, &c., unless the
agreement upon which such action shall be brought, or some
memorandum or note thereof, shall be in ivriting, and signed
by the party to be charged therewith," &c. Now to every
agreement there must be at least two parties ; and, in order to
make it available in law, there must be some consideration for
it; which necessarily forms part of the agreement itself, being
that in respect of which either party consents to be bound. It
is no answer to say that the parol evidence offered of the con-
sideration, namely, the forbearance to sue Hall, did not go to
contradict the written promise: it is enough that being part,
and a material part of the agreement, it was not reduced to
writing and signed by the party to be charged, as required by
the statute. The effect of such parol evidence, if admitted,
would be to render valid that which, so far as appears by the
writing itself, is void in law for want of a consideration ; and

14itH WAIN V. WAKLTKKS.

lliis would Ik' letting' in iiU tlic iliiii«,'fis of fraiul .mtl |.i'ijiuv
wliiili it was the t»l»ji'it of the* stiitute to ^luml against. 1'|m»u
the face of the paper the deht appears to Ik- tlie debt of uiiother;
and as a mere promise to pay the debt of another, without uny
consideration, wonhl. In-fore the statute, have U-en void im
)tn(]ii III j>nrt inn at common hiw: so it is ni>t made good l»y the
statute without a consideration in hiw for entering into suj-h an
agieement; wliieli ui/rii-tiimt, i.e., the whide agreement or soine
memorandum or note of tlie whole, specifying the cuntrucling
parties, the consideration, and tlie promise, must lie made in
writing. The eonsideiation is an essential part i»f every oxeeu-
tory agreement; and this was altogether executory, on the part
at least of the defendant. If the agn-ement had U'en declared
on as in writing, the mere production of the note c»>uld not have
})i()ved the consideration of ft»rlM*arance laid in the declaration;
and such consideration could not havi- U-en supplied hy |«irol
evidence. In Prcxton v. J/» /•««•(/ » («i ), where the plaintifl had
agreed in writing with the defendant's testator to let him certain
premises at a certain rent; par«)l evidence tendere<l to show that
the tenant had agreed to pay a certain sum for grouml-riMit t»»
the ground landh)rd, was rejected as suhversivi* of the Statute
of Frauds; although it was there contended that the t'vidence
offered diil not go to ^l^tl^r hut to tjjilnin the agreement. So in
G Klin is \. Ur/mrf {f>^, ihv vcrhal declaration of an auctiom-er,
at the time of a sale, that there was a charge on the estate, was
dci'mi'd ina<lmissil)le to i-ontradict the jirinteil conditions, which
stated the premises to l)e free from all incunduanees.

Urskine and Murri/nt, in support of the rule said, that the evi-
dence tendered in the two eases citeil went n«)t to explain but
to contradict the written agreements; in the one ease to increiuse
the quantum of the rent specified, in the other to subtract so
much as the charge amounted to from the value of the estate,
which was offered for sale free from incumbrtutcex. Hut here
the parol evidence went merely to show on what ociasion the
written agreement had been entered into: and it is in common
practice to admit parol evidence for such a purpose : it is ])art
of the res i/estcc, and no part of the agreement itself, which
must in its nature be executory at the time of the writing ma<le.
The foundation of the action in this case is not the writing, but
the promise by the defendant to pay the debt of Hall. Tliis,

(«) 2 Blac. 1241). (h) 1 H. Hlac. 289.

WAIN V. WAKLTEllS. A"*^^

before the Statute of Frauds, might have been proved wholy
by oral testimony, but since that statute the promise can only
be evidenced by writing signed by the party to be charged
therewith, or by some other lawfully authorised. I is difficult
indeed to account for the introduction of the word agreement
into the latter part of the clause, which, in its strict sense, as
comi^ounded of ^^aggregatio mentium, or the union of two or
mor^ minds in a thing done or to be done " («), is more properly
applicable to the other branches of the clause, namely, an
curreeme^U on consideration of marriage, or upon cantraetovs^le
of lands, &c., or upon any agreement not to be performed withm
the space of one year," &c., than to any special pronuse by an
executor to answer damages out of his own estate, or to any
special promise to answer for the debt, &c., of another. To
such promises the word agreement can only be considered appli-
cable so far as it is synonymous to engagement or undertaking,
in which sense it is often used in common parlance, and there-
fore means in this respect the agreement or promise to pay the
debt of another. Besides, the statute does not requii-e he whole
agreement to be set out in form, but it is sufficient if there be a
note or memorandum of it in writing; that is, so much o the
agreement as is obligatory on "the party to be charged there-
with" In whatever form of words, therefore, the promise is
made, which before the statute would have been evidence to
bind the party making it under the circumstances of the case,
it will, if those words are reduced into writmg, still bind him
since the statute, under the like circumstances. But m either
case the inducement for making such promise, which is part of
the res gestae, may be evidenced by parol. Thus, suppose a
promise in writing to pay the expenses attending a cer am bill
drawn by another; parol evidence must necessarily be et m to
show to what bill the promise was meant to apply, aud how the
expenses arose, and the bill itself would be produced And this
would be evidence not to vary, but to co\n-oborate the written
promise. The 3rd, 7th, and 17th sections of the act all require
the signature of the party to some note in writing in order to
charae him with the several subject-matters of those sections
But in all those cases the party must be charged on the special
written agreement; but here he is charged on tlie promise, of
which the writing is only evidence. Yet the 4th section sup-

(«) 1 Com. Dig. 311.

i:»00 WAIN V. WAKLTKKS.

poses that tliu [MVty is to Ik* fluii^^fd upon the aijreement, "unleiui
the iii^Mt't'iiu'iit upmi which siuh urtioii shall Ik; l»rou^'hl," iVr.;
wliicli shows that (i</niinent as there used means no more thun
unih'rtiikinii or vniiugement. And in this seiiHe i\\\ tfjrremttU
si^'iu'(l hv out' |)artv only on a sale hy auetion was holdeii sulVi-
eient to iliarj^e him within the Statute of Frauds(<i). (^I^or«l
£llen/>or<>io/h, ('. .1. There it was dri'innl .suHieient proof t)f
sueh a<,'reement so as to change the party si^Miin^' it. lie wius
est(»p[)ed hy his signature fn»m proteeting himsidf under llic
statute. Hut there the consideration appeared in writing.)
They tlnii ol»s( rved, that thiuigh the ohjeetion uwist have t)ften
before oecurred in actions of this sort, wiiiih were in eoinmon
priu;tie»', the word tif/ni-nunf ha<l never U-fore received sueii a
constiiiction as appliiahle to tins hran<h of the elausc.

Lord I'Jllfu/ioroiii/h, ('. .1., aftrr noti«ing the dctinition of tlie
word (iifrffiiuiif hv I^ord ('. 15. Cunii/iin, \\\ut considered it as a
tliinn" to wliii h there must 1h' the assent of two or mor«' miml.s
and which, as he .says, ought to Ih* so j-ertain ain«l c(unph'le that
each party may have an action upon it; for which, in addition
to the author's (►wn authority, was citecl that «»f Ptoinhn ; and
better (^his Lordship okscrved) couhl not l»e cited:

In all cases where, hy long habitual construction, ihc word.s
of a statute have not received a peculiar interj»retation, sucdi as
they will allow t>f, I am always inclined to give to them their
natural ordinary signification. The ilause in (piestion in the
Statute ot Frauils has the word ii<fniinint ("unless the agree-
mnit U[)on w Inch tiic action is brought, or some memorandum
or note thereof, shall be in writing"' \c.). And the <|uestion is,
Whether that word is to be unilerstood in the loo.se incorrect
sense in which it may sometimes be used, as synonynn)iis to
promise or imdertakint/, or in its more proper and correct sense,
as signifying a mutual contract or consideration l)etween two
or more parties? The latter appears to me to be the legal con-
struction of the word, to which we are bound to give its proper
effect: the more so when it is considered by whom that statute
is said to have been drawn, by Lord JJn/t(l>), one of the great-
est judges who ever sat in Westminster Hall, who wiis as com-

(a) Seton v. Slade, 7 Ves. jnn. 2t','>. liaps tli.iii by Lord Halp's havinir left

(6) Lord, Mans^tield expressed a some loose notes heliind him, wliirh

doubt of this in Wi/ndhain v. Chet- were afterwards unskilfully digested,

icynd, 1 Burr. ilS, any otherwise per- 1 lilac. D'J.

\yAlN v. WAKLTEES. 1501

petent to express as he was able to conceive the provisions best
calculated for carrying into effect the purposes of that law.
The person to be charged for the debt of another is to be
charged, in the form of the proceeding against him, upon his
special promise ; but without a legal consideration to sustain it,
that promise would be nudum pactum as to him. The statute
never meant to enforce any promise which was before invalid,
merely because it was put in writing. The obligatoiy part is
indeed the promise, which will account for the word promise
being used in the first part of the clause, but still in order to
charge the part}- making it the statute proceeds to require that
tlie agreement^ by which must be understood the agreement in
respect of tvhich the promise ivas made must be reduced into writ-
ing. And indeed it seems necessary for effectuating the object
of the statute that the consideration should be set down in
writing as well as the promise ; for otherwise the consideration
might be illegal, or the promise might have been made upon a
condition precedent, which the party charged may not after-
wards be able to prove, the omission of which would materially
vary the promise, by turning that into an absolute promise which
was only a conditional one : and then it would rest altogether
on the conscience of the witness to assign another consideration
in the one case, or to ch'op the condition in the other, and thus
to introduce the very frauds and perjuries which it was the
object of the act to exclude, by requiring that the agreement
should be reduced into writing, by which the consideration as
well as the promise would be rendered certain. Tlie authorities
referred to by Comyns, Plowd. 5 a. 6 a. 9, to which may be
added Dyer, 38«j. b., all show that the word agreement is not
satistied unless there be a consideration, which consideration
forming part of the agreement ought therefore to have been
shown; and the promise is not binding by the statute unless
the consideration which forms part of the agreement be also
stated in writing. Without this, we shall leave the witness
whose memory or conscience is to be refreshed to supply a con-
sideration more easy of proof, or more capable of sustaining the
])romise declared on. Finding therefore the word agreement in
the statute, which appears to be the most apt and proper to
express that which the policy of the law seems to require, and
finding no case in which the proper meaning of it has been

1502 WAIN V. WAItLTElCS,

relaxed, the best construction which we can make of the chmne
is to give its proper and Iv^id nu'anin<j to every word «)f it.

Grose, .1. — It is siiid that thf parol fvi<l«'iici' t«Midt'rfd <loeH
not contradict tht' ai^reeinent ; l»ui the <(uestiitii is, whether the
statute does n<»t ie([uiie that tin- fousiiU'iation for the pronuse
should be in writinj^ as well as tlie piKinise itself/ Now the
words of the statute are, *• that no aetion sliall Ix* brought where-
by to charge the defenchmt upon any special promise to answer
for the debt, \.c., of another pei-son, Arc, unless th«' (VirtrmtiU
U[)on which such action shall be brought, oi* some nienioraiKhim
or note thereof, shall be in writing," «S:e. What is recpiired to Im
in writing, therefore, is the (t</nfmcnt (not the pr«)njise, sis int-n-
tioiied in the tiist part of the clause ), or some W"^• or mfinortindum
of the a(/reemenf. Now the (V/reemt'uf is that which is to show
what each purf// is to do or perform, and bv which />oth partirn
are to l)c bound; and thin is re«|uired to Ijc in wrifini/. If it
were oidy necessary to sh(»w what one of them wiis to do, it
would be sutlicient to state tlie promise made by the defendant
who w;is to be charged upon it. liut if we were to a<lopt this
construction, it would Ix' the means of letting in those very
frauds and perjuries wliidi it was the object of tlie stJitnte to
prevent. Vo\\ without the jtarol evidence, the dt^fiMidant
cannot be charged upon the writt«'n contract for want of a
consideration in law to sujiport it. I'lie ctTeet of the paiol
evidence then is to make him liable: and thus he woidd Ihj
charged with the debt of another by parol testimony, when
the statute was passed with the very intent of avoiding such
a charge, by requiring that the at/reemenf, by which nuist Ihj
understood the whole ai/reement, shoidd be in writing.

Lawrence, J. — From the loose manner in which the clause
is worded, I at first entertained some donbt u{)on the i|Ucstioii ;
but upon further consideration I agree with my Lord and my
brothers upon their construction of it. If the (piestion had
arisen merely on the first j)art of the clause, I conceive that it
would only have been necessary that the promisr should have
been stated in writing ; but it goes on to direct that no person
shall be charged on such promise, unless the agreement or some
note or memorandum thereof, that is, of the ar/reement, be in
writing; which shows that the word aijreement was meant to
be used in a sense different from promise, and that something
besides the mere promise was required to be stated. And as

WAIN V. WARLTERS. 1503

the consideration for the promise is part of the agreement,
that ought also to be stated in writing.

Le Blanc, J. — If tliere be a distinction between agreement
and promise, I think Ave must take it that agreement includes
the consideration for the promise as well as the promise itself :
and I think it is the safer method to adopt the strict construc-
tion of the words in this case, because it is better calculated
to effectuate the intention of the act, which was to prevent
frauds and perjuries by requiring written evidence of what
the parties meant to be bound by. I should have been as well
satisfied, however, if, recurring to the words used in the first
part of the clause, they had used the same words again in the
latter part, and said, "unless the promise or agreement upon
which the action is brought, or some note or memorandum
thereof, shall be in writing." But not having so done, I think
we must adhere to the strict interpretation of the word agree-
ment, which means the consideration for which as well as the

jpromise by which the party binds himself.

Rule discharged.

The main point involved in this case has been already discussed in the
note to Birkmyr v. Darnell, ante, vol. i. The case of Wain v. Warlters is,
however, one of so much celebrity, that it would have been improper to omit
It in a selection of leading cases; it was couflrmed, as is there stated, by
Saunders v. Wakefield, 4 B. & A. 596; and [was afterwards] acted on in
numerous cases.

[It has been mentioned, ante, vol. 1., that the Mercantile Law Amendment
Act, 1856 (19 & 20 Vict. c. 97), provides, by s. 3, that no special promise to
be made by any person after the passing of that act (29th July, 1856) to an-
swer for the debt, default, or miscarriage of another person, being in writ-
ing, and signed by the party to be charged therewith, or some other person
by him thereunto lawfully authorised, shall be deemed invalid to support an
action, suit, or other proceeding to charge the person by whom such promise
shall have been made, by reason only that the consideration for such promise
does not appear in writing, or by necessary inference from a icritten document.
The rule laid down in Wain v. Warlters (a rule which some have thought to
be hardly consistent with the natui'al interpretation of the words of the 4th
section of the Statute of Frauds, which only required that there should be
some " memorandum or note" in writing of the agreement of guarantee) was
altered by the legislature, because it was found, in practice, that it led to
many unjust and merely technical defences to actions upon guarantees.

The note to this case deals with the questions arising upon that portion of
the 4:th section which provides that a guarantee shall be signed by or on be-
half of the party to be charged; and as this provision is still in force, the note
is retained in this edition.]

ir>04 WAIN v. WAKLTKKS.

It will b«' rfcollccnil tliiit, lucnriliriy to tlif stutiit«', tin- a;;ri>fiiifiit. or Hoiiif
iiM'iiinnuHluin or iiotf tlnTeof. Is to !»»• In wrltliii;. niijnfd Ay thr ^Htrl<j to hr
ckiirtjnl thertwith, ur sinw i>thfr pfmon therrunto t»j him lutrfulty nuthnritrd.
On thest' \vt)rils It Ims sometlint's be»-n made question, what ran Ik* ileeimtl
a siittlcicut sli^nutiirc to nu-t-t tlirse uonls. It Is <-U-ar that tlie Hlj;nntiin-
neud not be placed in any particular part of the Instrument or memorandum
See Saundersnn v. Jnck»nn. 2 H. & 1'. 2:»M ; Schnridtr v. Snrri*. 2 M. A S. 2f*<i :
Kuiijht V. Crorkfi»rd, 1 Ksp. 11)0; which are decisions on the corres)M>mliui;
wfu'ils in the 17th section.

[In DurMl v. Kmns, 1 II. & C. 174. in Cam. S«acc. (reverslnj; the deelsloii
in the court below, t; II. v<: X. •;«;o), tin- name of tin- person to l>e charKetl ^lh^•
buyer) was written at the top of a note of tin- <ontract by a fa«"t<>r who con-
ducted the sale. The court was of opinion that there was evidence for tin-
jury that the factor was the a^rent of both parties f«)r the purpose of dra\\ in;;
up a record of the contract biudini; on them, and that If he was, the wrlttni;
of the name of the buyer at the head of the memornndiim was a sultlclent
HlRnature within the 17tli sect. ••Noakes" (the factor), snlil Mr. Justice
Crompton, " drew out a note of the contract with the nameN of lM>th buyer
and seller upon it, but It coutaluetl notldnt; which coulil onllnarlly Im- calUnl
a signature, for the tlefentlant's (the buyer's) name was written at tlie liead
of the document; and if this had bcrn the first casi- on the subject I ^hoidtl
have doubtcil wht>ther the placing a name at the top of a docinuent could
fairly be callrd a >ii.'n»ture, but that Is now past discussion, for tlie ca.ses
have decided that it does not slt;ulfy where the name Is place<l. If It is put
there by the party sought to be char;;etl or some penton deputcti by him. It
may be at the head, the ndtlille, at the end, or in any part of the ilf>cu-
ment." See also Simmnnds v. Ilumhle, l.'l C. B. N. S. 2.'>H. It must, hi»wever,
be so introduced as to govern or authenticate every material and tiperatlve
part of the instrument. For a ciusf where the name of the party to Iw
char;xcd was iiitrndu<ed in different parts of the paper, but so a.H to relate
only to those i)artlcular parts, not to jjovcrn the whole contract, see Cutnn v.
CnUni, L. U. 2 II. L. 127.]

\\\ .lohnson V. Dtidijunu, 2 M. & W. •>">;$. the following note, written by the
defendant, was held sutllcicntly signed to satisfy the 17th .section of the
statute : —

"Lffdf, 19 October, lf<36.

" Sold John Dodijunn (the defendant) 27 pockets Playated, 1836, Siumejr, at
103s. The hulk ti> ansirer the sample.

" i pockets SelDie, lierklei/s, at OUa. Samples and invoice to be sent by Rock-
ingham coach. Paipnent in /{'inkers at 2 months.

•• Signed for Johnson Johnson <£ Co. (the plaintiffs).

• D. }/»r!>^"

"The Statute of Frauds," said Lord Abinfjcr, C. B., • refpiires that there
should be a note or memorandum of the contract in writiiii; signed lnj the
party to be charged. And the cases have decided that, altIioui;h the si>;iuiture
be in the beijinnins; or middle of the instrument, it is as bindiuir as if at the
foot of it, the ijui'titiun being ahcays open to the jury whether the party, not hav-
ing .^ig}ied it regularly at the foot, meant to be bound by it as it then stood, or
rchether he left it so unsigned because he refused to complete it."

[In Sari v. Bourdillon, I C. B. N. S. 188, the sellers of goods entered a list

WAIN V. WAELTERS. 1505

of the goods which had been purchased in an order book, on the fly-leaf at
the beginning of which the names of the sellers were written; the buyer
wrote his name and address in this book, at the foot of the entry which re-
ferred to the goods. It was held, that under these circumstances there was
a sufficient signature of the contract by the party to be charged, and that the
names of the sellers appeared on it sufficiently to satisfy the Statute of
Frauds.]

But it would seem from the case of Hubert v. Treherne, 3 M. & G. 755, that,
if it appear upon the face of the instrument itself that the parties contemplated
a further signature in order to complete it, the insufficiency of the signature
is matter of law ; thus an agreement containing the names of the parties,
and concluding with the words "as witness our hands" without any other
signature, was held not to be sufflcientlj"^ signed within the 4tli section of
the statute, and Mr. Justice Maule observes — '• In cases of this description
two questions may occur : first, whether the agreement contains that which
the Statute of Frauds requires, which is a question of law; secondly,
whether the agreement has been signed by the party to be charged therewith,
or by a person authorized by such party so to do, which is a question of fact.

1 think this rule (to enter a nonsuit) should be made absolute on the first
point."

[Where alterations made in a written memorandum after it had been signed
by the defendant were subsequently assented to by him, the contract was held
binding, and parol evidence was admitted to show that he had assented to the
alterations, Stewart v. Eddowes, L. R. 9 C V. 311; Sanderson v. Graves, L. R.
10 Ex. 234; Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140; Stevens v.
Bowserj, 1 C. P. D. 220.]

In Coles V. Trecothick, 9 Ves. 951, Lord Eldon said that " where a party prin-
cipal, or person to be bound, signs as what he cannot be, a witness, he cannot
be understood to sign otherwise than as principal." But in Gosbell v. Archer,

2 A. & E. 500, where the purchaser affixed his signature to an agreement for
the sale of land, and underneath was written, " Witness, Joseph Nevnnan,"
in the usual place for a witness's signature, Joseph Newman being the clerk
of the auctioneer employed to sell the premises, it was urged that Xewman
must be taken to have signed as agent for the vendor, and it was attempted
to show a ratification of his agency. But the court was of opinion, that he
signed simply as a witness; and Lord Denman, C. J., said that " he thought
the above remark of Lord Eldon open to much observation ; that no such
decision had been actually made; and that, if it had, he should pause, unless
he found it sanctioned by the vei'y highest authority, before he held that a
party attesting was bound by the instrument." And see the judgment of
Baron Tarke in Doe d. Spilshury v. Burdett, 9 A. & E. 971; S. C. in Dom.
Proc. 6 M. & Gr. 386. See, however, the observations of Sir Edward Sugden
upon the judgment of Lord Denman in this case, in which he vindicates the
remarks made by Lord Eldon in Coles v. Trecothick, 1 Vend, and P., 14th
edition, 143.

[Although it has been settled ever since the case of Simon v. Metivier, 1
Bl. 599, that the auctioneer is the agent of both the buyer and seller, and that
a memorandum made by him of the bargain is a sufficient compliance with
the terms of the statute (see Beer v. London and Paris Hotel Co., L. R. 20
Eq. 412), the agency of the auctioneer exists only at the time of the sale, and
he cannot, at a subsequent day, bind the parties by his signature : Mews v.
Carr, 1 H. & N. 484. On a sale of land subject to conditions, the entry in

150G WAIN V. WAULTKKH.

tin- auctioneer's book must refer to the rondltlonM of sale »o t» to Ulrntlfy
them, Jiishton v. W'hntmorf. M Cli. D. 4«;7. A.i to n fil^imtun* by an aurtlou-
eer's clerk, ^ee yvmv v. Corf, I.. K "J l^. B. 210. Miie of ih»? partle* to lhi»
contract cannot siyn the name of the other, sti as to bhul him: .VAurmun v.
IlrniuU, L. K. t> (^. I{. 7l'<».

In Mnrphij v. JlneHf. I.. I{. 10 Kx. l-'tJ, the plalntltTf* traveller, on takiti^ an
order from the tiefemlant. w rote down in his pn-^ence the ilefenilant'<« name,
and the description and price of the i;<mm1s in a partly printe«l fonn, and i;ave
the defemlant a copy of what he had written, the court lUstlnifuUhln:; Iturrrll
V. Kvans, ftup., held that there was no evidence of .signature by an ai;«Mit
within the statute. .\ si-^netl entry In a broker's book may Im- .tutTlclent to
l)in(l i)oth parties: Thotnpunn v. (innlnfr, 1 ('. 1*. I>. 77H.

In Sinilh V. Wihstt-r, '.\ Ch. 1). 41), the following l.'tter sii;ned by the dc-
fendiiiifs Holicitnr, and adtlressfd to the plalntltrs .solicitor, was h«dd not to
be sutlliieiit to Itind the defendant: " W. (the defentlaut) has ln-en with us
to-day and stated that In- had arranm-<l with your client for tlie hale t<» the
latter of the (lolden I. Ion for !».'iO/. We therefore .send herewith tlrafl con-
tract for your perusal and appro\al." The signature by tiie chalnuan of a
company to the minute iHtok nniy Ik- .sulllctent to bind the company within
the Statute of Frautls, .li>ui» v. Virtnrin (ir>triii,i f)<,>k, 'j i^. \\. D ;n4 ]

Whether the initinls of the party to \h> chari;e«l are a suHlclent .sitrnatnre
wltliin this statute seems clear, although not very clearly ilecUleil. It [was]
stiiti'il iu .Mr. Uoscoe's work upon Kvidence, i:th edition, p. 'J<'>.'>, that a Mli;na-
ture by initials is nnl sullleient within the meanlni; of the statute, ami Jamh
V. Kirk. '1 M. & Rob. 'i'.M, and Sir,,-t v. Lr, , W M &. i', 4.M», [w«Te] cltisl as
authorities fnr that position, whilst Sir Kdwanl Sujjden cites those two
cases in support of the statement, that *• It Is sunh-lent. It seems. If the Ini-
tials (»f the name are set down;" I Vend. & V., 14th e«lltlon, 144 : the cases
themselves <lo not appear to decide very distinctly either way. A murk-,
however, seems clearly to be a sullleient sii;miture within the statute, and
the Court of (Queen's Heiuh decided, on the '>th and 'Jth seclli>ns «>f the stat-
ute, that no ini|uiry on>.'ht to Ix- allowed as to whi-thi-r the party maklntr the
niiirk could write: linkfr v. Dfitiiuj, s .\. a K. 1)4; antl If. as was In elfect
decided in that case, a mark made by a person who can write be a sullleient
siiinature, it appears stranije that It should rease to be so when the mark
assumes the shape of the maker's Initials. [It has now been deelde<l. upon
the above rcasonlnsr, that a signature by Initials Is a sullleient signature under
the Wills Act: In the ijmnh of lilfwiu, 'i V. 1). 11.'.; 41» L. J. 1*. I). :»!.] See
also the cases cited in Trottrr, app., r. ]\'iil.':> r, resp., i:i C. R. X. S. 30; .'12 I>.
J. C. P. 00; where a notice of objection to the name of a voter was held to
be snflicient, althoii<;h the siiriiaun' of the objector (bein«r his usual mode of
sisninjr) was wholly illeirihle. so that an ordinary person unaciiuainted with
the sii^nature couUl not, by perusing it with ordinary skill and diligence, llud
out what name it was intended to designate. In Bmnett v. Brumjit, L. K. 3
C. P. 28, a notice impi'cssed with a stamped /ac-.sj»jj7<» of the objector's sijna-
ture was held to be sufficiently signed, but see In the gonrUof Jenkiim*, infra.

The Wills Act, I Vict. c. 26, s. 9, requires that two witnesses " shall attest
and shall subscribe the will in the presence of the testator." In the case of
Harrison v. Elwin, 3 Q. B. 117, the name of one witness, who could not
write, was traced by the other witness holdincc his hand, and £ruidin;r the pen.
It was contended that, assnmini; a mark to be sufficient, this was not even
the mark of the witness, but the court held that it was the sifin<rtnrr of the

WAIN V. WARLTERS.

150T

Witness and a sufficient attestation; and in Helsliaw v. Langley, 11 L. J. Chan.
17 an agreement was lield to be sufficiently signed wliere the agent who
made the' agreement (not being able to write) held the top of the pen whilst
another person wrote his name; see, however, Hiihert v. Moreau, 2 C. & P.
528 per Best, C. J., but see also S. C. in Banc. 12 B. Moore 216.

[A mark at the foot of the will with a wrong Christian name written
against it, the testator being also described by the wrong Christian name in
the will itself, has been held to be sufficient under the Wills Act, the court
bein'' satisfied that the mark was that of the testator, and that it was made
animo testandl. In the goods of Thomas Douse, 31 Law J. Prob. 172. But the
court refused to grant probate, on motion, to a codicil at the foot of which
the name of the testator had been impressed by a third person, by means of
a stamp, at the testator's express direction. In the goods of Jenkyns, 32 L. J.

Prob. 71.]

A letter from defendant commencing — " Mr. Stanley begs to inform Messrs.
Lobh and Co.," &c., without any other signature, has been considered suffi-
cient within 6 Geo. 4, c. 16, s. 131, to revive a claim barred by a bankrupt's
certificate: Lohh v. Stanley, 5 Q. B. 574; and an agreement written by a
defendant, commencing — " Mr. Wilmot Parker has agreed," &c., satisfies
the 4th section of the Statute of Frauds as a signature by Wibnot Parker:
Propert v. Parker, 1 Rus. & Myl. 625 (notwithstanding the doubt in Morrison
V. Tumour, 18 Ves. 175). " The object of all the statutes," says Mr. Justice
Patteson, in Lohh v. Stanley, " is merely to authenticate the genuineness of the
document," and perhaps the result of the cases may be, that the name of the
party to be charged, or any mark written or made by him, or by his direction,
upon a document in other respects sufficient, for the purpose of authenti-
cating its genuineness, may be a sufficient signature within the Statute of
Frauds. [See also Durrell v. Evans, cited supra, p. 278 ; and Tourret v. Cripps,
48 L. J. Ch. 567, where a letter containing the sender's name, printed at the
top, but not signed in writing, was held sufficient to bind him.]

It is not necessary, when an agent signs, that he should sign the name of
his principal; if he signs in his own name, parol evidence is admissible
to show the agency, and charge the principal on the contract; see the notes
to Thompson v. Davenport, post; and in the Prerogative Court it has been
held that another person by direction of a testator signing his own name
instead of the testators at the foot of a will, was a sufficient compliance
with the 9th section, 1 Vict. c. 26, which requires that the will " shall be
si-ned at the foot or end thereof by the testator, or by some other person
in" his presence, and by his direction." " The act," said Sir H. Jenner Fust,
" allows the will to be signed by another person for the testator; here this
gentleman, by the testator's request, signed the will for him, not in the
testator's name, but using his own name. The act does not say that the testa-
tor's name must be used : I think this is sufficient under the act." In the
goods of Clarke, Prerog. 20th February, 1839, cited 1 Williams on Executors,
8th edition, p. 84; qucere.

[In a modern case in the Probate Court (Trottr. Trott, 29 L. J. Prob. Cases,
156), the holograph will of Joseph Skidmore began with the words, "I,
Joseph Skidmore," and ended as follows, "all of which to be paid . . . and
a receipt, to be provided by the receiver, from all further claim upon the
estate of their departed brother Joseph Skidmore." The words "Joseph
Skidmore" were written on the same line with the preceding words, without
any interval between them and the word " brother." The will was not other-

1608 WAIN V. WAUl/IKUS.

wlso signed, and underneath the last wonls appeared tli. iii.mt -. ..i t«i.
witnesses. 'I'lie court uraiitt'd probate of the will, hoUiiiig tliut. from tin-
mode in whieh tiie donimcut was framed, tlie testator must have intended
the words " .losepli Skidmore" at tiie emi of tiie will to l)e Ids signature.

It is not a siillieient sijjiiature i>y a witness imiler the Wills Art that one of
tlie witnesses sliould aclinowledixe his pn-x ionsly written >i'^iiatnre In the
presence of the other, even altiionfjh he, at the same time, e<»rreel.s an error
in it, and adds the date: J/imlnnir.ih v. Chnrltnn, H 11. of L. Ca-ses, liU).

Two points of much general importance with reference t«) eoniractn w itidn
tlie operation of tlie Statutt" of Frauds must !»«• here shortly mentioned.

First, althi>ugh a document may be sunieieutly >i//i(»(/ within the meaning
of the statute, the dcMMiment itself will not be snllleient, either Uiuler the 4lh
or the 17th section, unl«'>s both the contracting parties appear on it. either by
name or ity snllleient «lescription. A guarantee consetpieiitly which do«-s not
contain the name of tlie person to whom it is intended to Ih- given, cannot be
enforced, although duly signed by the party to be charged : Wilti'ttiig v. /.akr,
2 E. & E. 34'J; .SVi/*- v. I.amhnt. L. U. 1« E.|. 1 ; I'otOr v. Dufflrld. L. I{. IH K«|
4; see also Champion v. Phnnmer, 1 New U. 2.'»2 ; Cnmmina v. Srittt, L. It. 2o
E(|. II; riwmfts v. linnrn, 1 Q. B. I). 714; llnnsili-r^w Millrr, 6 Ch. I). «4>*.
;{ .Vpp. Ca. 1 ILM ; C'lt/hnj v. Kiiiij, 5 Ch. I). r.C.O ; ]\illiiiiin> v. Jortliin, C Ch. 1).
r»17, and Vnndi iihi-njfi v. Spnnner, L. U. 1 Exch. 'MC.

Ill that case, Sptiinitr was the buyer and Vitinl>n>>i nih tin* seller, and the
docnineut relied upon to take the ca.se out of the statute was in this form :
" D. SjMjiiHcr ayrfts to huy tho trhole of thf lot» of marhlr purrha»rd Inj Mi .
Vdndiithirijh notn Ujimj iit thi- I.ijun' Cohh ttt In. per foot (sign«'«l) /'. Spoourr."
it was held that the document was not snllleient, as the seller's name, ag nrllrr,
was not mentioned in it, but occurred only as part of the description of the
gtjods : sed qiuvrc, and see Xrirell v. liddford, L. U. '.i C. P. .'»2; .SVir/ v. liotir-
dillon, supra.

Secondly, the written note or memorandum re(|nired by the 17th section, if
properly signe<l and snUlcient in other respects, need not be addressed to tin-
otlier contracting party; a letter, therefore, written by the person to lie
charged (the buyer) to his otrn (ttjtid, referring to letters of the agent stating
the terms (»f the contract and the name of the seller, was held to In* a sutll-
cient note of the contract: Gibson v. Holland, L. H. 1 C. 1'. 1.]

T. General nature of memorandum. — Distinction bet^v^een ^^rrit-
ten contract and memorandum. — It the contract ill its inception
be reduced to writing, the statute has no application. The
common4aw rules of evidence as to the introduction of parol
evidence for the explanation of written instruments govern
such contracts-, and the statute introduced no change in this
respect; Wiener v. Whipple, 53 Wise. 298 (1881) ; Sievewright
V. Archibald, 17 Q. B. 103. But oral contracts are expressly
within the terms of the statute, unless evidenced by some note
or memorandum in Aviiting. It is plain, therefore, that a mem-
orandum within the Statute of Frauds presupposes a prior

■ WAIN V. WARLTERS. 1509

oral contract, valid at the common law, the enforcement of
which is barred by the statute. These propositions and dis-
tinctions, often disregarded by the courts in the past, are now
generally recognized as most important; Saunderson v. Jack-
son, 2 B. & P. 238; Sievewright v. Archibald, supra; Parton v.
Crofts, 33 L. J. C. P. 189, per Erie, J. ; Lerned v. Wanne-
macher, 9 Allen 412, per Hoar, J. See, also, Thayer v. Luce,
22 Ohio St. 62; Williams v. Bacon, 2 Gray 387; Brown v.
Whipple, 58 N. H. 229 ; Ullman v. Meyer, 10 Abb. N. C. 281
(1882); May v. Ward, 134 Mass. 127 (1883); Ashcroft v.
Butterworth, 136 Mass. 511 (1884) ; Williams v. Robinson, 73
Me. 186 (1882).

Memorandum signed by defendant alone. — It is generally
well settled law that the prior verbal promise of the plaintiff is
a sufficient consideration to enable him to recover of the de-
fendant who has alone signed a memorandum ; Egerton v.
Mathews, 6 East 307 ; Allen v. Bennet, 3 Taunt. 169 ; Clason
V. Bailey, 14 Johns. 484 ; Penniman v. Hartshorn, 13 Mass. 87 ;
Williams v. Robinson, supra ; Tripp v. Bishop, 56 Penn.
St. 424 ; Perkins v. Hadsell, 50 111. 217 ; Old Colony R. R. v.
Evans, 6 Gray 25 ; Shirley v. Shirley, 7 Blackf. (Ind.) 452 ;
Barston v. Gray, 3 Greenl. (Me.) 409 ; Douglass v. Spears, 2.
Nott & M. (S. C.) Law 207. And the better law is that the
same doctrine applies even in equity, in a suit for the specific
performance of a contract for the sale of land ; Slater v. Smith,
117 Mass. 96; Oliver v. Alabama Life Ins. Co., 82 Ala. 417
(1886). But see Lawrenson v. Butler, 1 Shoales & L. 13, per
Lord Redesdale. In a very recent Michigan case, even under
the "year" clause of the statute it was held that tliere Avas no
mutuality unless the memorandum was signed by both parties ;
Wilkinson v. Heavenrick, 58 Mich. 574 (1886). See Krohn v.
Bantz, 68 Ind. 277; Stiles v. McClelland, 6 Col. 89 (1881),
acco7'cl.

"Written offer accepted by parol. — The law WOuld now seem
to be settled that a written offer verbally accepted by the
offeree constitutes a valid memorandum as against the offerer.
This was expressly so decided in England in Reuss v. Picksley,
L. R. 1 Ex. 342. There is a dictum to the same effect in San-
born V. Flagler, 9 Allen 474 ; and see Justice v. Lang, 42 N.
Y. 493 ; Western Union Telegraph Co. v. R. R. Co. 86 111. 246 ;
Lowl)er v. Connit, 36 Wise. 176 ; Lee v. Cherry, 85 Tenn. 707

lolO WAIN V UAULTKICS.

(1887). The difficulty with this <U»c'triiie sft'ins l«> l>e that tl»r
written oflVr ciiniiot In; vii-wt'd in the li^ht of u nienturunduni,
since there h;i.s l)een no previous verUtl eontnict ; nor, in tlie
absence of all inutiuilitVi can it Ik* considered to Ixj the con-
tract itself. See the lan^uai^c of Uraniwdl, 11., in Watts r.
Ainsworth, 'i\ L. J. Kx. 448, and of Wilde, B. in the same case
reported in 1 11. «& (\ 83. See, also, Munday r. Asprey, 18
("h. 1). 8.'^;'). And in two recent Massachusetts decisions the
court has refused to extend this principle t«» the case of a
written authority to an aj^eiit to make an offer; flastiuf^ v.
Wei)er, 142 Ma.ss. '2'.V2 (188»;): Doherty r. Hill, 144 .M;iss. 4r,r>
(1887). ('omi)are Williams v. Byrnes, 8 L. T. N. S. •;•.». Hut
see Lee f. ('herry, 8/) 'IVnn. 707 (1HM7). uftiihlr, mntrn.

Parol evidence is competent to show that memorandum differs
from verbal agreement. — In furlln*r illustration of the j^enend
priucijiie thill the memorandum presuppos»'s a pre-existing
verbal agreement, parol evidence may l)e introduced to show
that it is insunicient to take the promise out of the operation
of the statute because it differs in some essential feature from
tliiil at^reement. Such evi«lence would of course, on common-
law j)rinciples, be inadmissible, if the memorandum constituted
a wiitteii contract ; Sievuwrij^ht r. ArchiUild, Hupni : I'arton
r. Crofts, 83 L. .1. ('. 1'. \H\K per Krle, J.; Archer r. Haynes, ;">
Ex. 625; (iibson v. Holland, L. IJ. 1 C V.. fur Willes, J.; Davis
V. Shields, 2<) Wend. 341; ( oddini^ion v. (loddard, !♦» (iray
436, ^<'/- Bijj^elow, V. .1 ; Lcrned v. Wannemacher, '.> .Mien 412;
(lardner J'. Hazilton, 121 Miss. 494; Williams i-. Kobinson, 73
Me. 186 (1SS2).

Letter •written to a third person or in repudiation of the con-
tract. — Moreover, a letter written to the defendant's own a^ent,
or to a third person, which never comes to the notice of the
plaintiff, is held to constitute U good memorandum of a pre-
vious verbal agreement; Gibson v. Holland, L. K. 1 C. I*. 1;
Peabody v. Speyers, 56 N. Y. 230 ; Kleeman i'. Collins, 9 Hush
(Ky.) 460; Moore v. Mountcastle, 61 Mo. 424 ; Wood r. Davis.
82 III. 311 ; Moss v. Atkinson, 44 Cal. 3. In Warfield v. Wis-
consin Cranberry Co., 63 la. 312 (1884), there seems to have
been an erroneous application of this doctrine. In this case
the defendant undertook, by a letter written to a third person,
to accept the written offer of the plaintiff. The court held
that this was a good memorandum under the statute. As was

WAIN V. WARLTEES. 1511

pointed out in the dissenting opinion by Adams, J., it would
seem that there was no valid contract between the parties,
apart from the statute, since there was no aggregatio mentiiim. It
was not a question of a sufficient memorandum, but of a valid
written contract at common law. Compare Banks v. Harris
Mfg. Co., 20 Fed. Rep. 667 (1884) ; Lincoln v. Erie Preserving
Co., 132 Mass. 129 (1882).

Whether a letter wiitten by an agent to his principal is a
good memorandum, quccre. Gibson v. Holland, supra, and
Banks v. Harris Manfg. Co., 20 Fed. Rep. 667 (1884) seem to
hold that it is not.

A letter written by the defendant to the plaintiff, admitting"
its terms, but repudiating the contract upon some other ground
than the Statute of Frauds, is held to be a sufhcient memo-
randum under the statute ; Bailey v. Sweeting, 9 C. B. N. S.
843 ; M'Lean v. Nicoll, 7 Jur. N. S. 999 ; Buxton v. Rust, L. R.
7 Ex. 1, 279 ; Wilkinson v. Evans, L. R. 1 C. P. 407. In the
last case. Cooper v. Smith, 15 East 103, Richards v. Porter, 6
B. & C. 437, and Smith v. Surman, 9 B. & C. 561, are dis-
tinguished on the ground that in these cases the terms of the
verbal agreement were incorrectly stated in the writing signed
by the defendant.

Delivery of memorandum unnecessary. — So if the writing
neve]' be delivered to any one, but remain in the possession of
the defendant, such as an entry in his books, it is held that the
requirements of the statute are answered ; Johnson v. Dodgson,
2 M. & W. 653 ; Gibson v. Holland, supra ; Argus Co. v^
Albany, 55 N. Y. 495 ; Townsend v. Hargraves, 118 Mass. 325,
335, per Colt, J. ; Tufts v. Plymouth Co., 14 Allen 407 ; Jenkina
V. Harrison, 66 Ala. 345 (1880) ; Drury v. Young, 58 Md. 546
(1882).

Plaintiff must declare on verbal contract. — So the plaintiff
must declare in his pleadings upon the original verbal contract ;
and, unless it be expressly alleged in his declaration that the
agreement sued on was verbal, there is no legal cause for demur-
rer ; but the statute must be properly pleaded by the defendant ;
Babcock v. Bryant, 12 Pick. 133 ; Quin v. Hanford, 1 Hill 82 ;
Elder V. Warfield, 7 Harr. & J. (Md.) 391 ; Price v. Weaver,
13 Gray 272 ; Ecker v. Bohn, 45 Md. 278 ; Walker v, Richards,
39 N. H. 259 ; Elting v. Vanderlyn, 4 Johns. 237 ; Cranston v.
Smith, 6 R. I. 231 ; Petrick v. Ashcroft, 20 N. J. Eq. 198 ;

1")12 WAIN \. w Ai:i/n:i:s.

Adiiuis V. l*;itri(k, 3<) \'i. .'>ltJ ; Liiwruncc v. Chiwc, ;>! Ale. I'.m; ;
I'.ost.tii r. Nirliols, 47 111. ;{'>:5.

Memorandum must be executed before suit brought. — 'Ilieif
are iiuiny dicta in the reported esises t«» the effeet tliat tliu iiifiii-
oranduni must he exeiutt'(l U'fore tlie e(»mineiueineiil of tlie
artion; Bill /•. IJaiiieiit, 9 M. W. 3»'., p,r I'arke H. ; TisdaU* r.
Harris, 'JO Pick. 1>: Towiiseiid r. Mar^nave.s, llH Miis.H. 32o,
^.V-W), jx-r CiM, .].; liird r. Muiiroe, ♦'•»» Mc. .UT, per Peters, .1.
Hut it is l)elii'ViMl that it has never \hh'U necessary t<» de«'ide the
point, and it is hard to sec, if the nienioranduni is not the cnii-
tract itself, hut only evidence of it, why a verhal ai^'reenient is
not saved from the operation of tli«' st;itiit>' h\ ;i writim^r |.\,.-
euted at any time Ijcfore trial.

II. Form of memorandum. No special form required. — Any
Hole or writiiiL,' may U* a j^ood memorandum un«lir the statute,
liowever informal, and however awkwar«lly or inartitieially ex-
pressed, providt tl oidy it U' intelliijii»le without the introilue-
tion of j)arol evid»'nce to explain it ; Tindal, ('. .1., in Acehal
V. Levy, 4 iM. iV Scott 220. See, al.so. Watt r. ('ranln-rry Co.,
r;:^ Ia.7:iO (1S84); Fry r. I'latt, :i2 Kan. frj (18H4); North v.
^Iiiidcl, 78 (Ja. 400 (1H84). Parol evi<lence, however, is always
admissihle to e.xplain technical expressit)ns and tra<h' .syndMtls;
Spicer v. Cooper, 1 Q. B. 424; Sari v. Bourdillon, 2»; L. .1. C. P.
78; Salmon Falls Mfi,'. Co. r. Godflard, 14 How. 440; (Jowen
V. Klous, 101 Mass. 440; Drury v. Youm;, r>S Md. o40 (1882).

It is no ohjeclion to the memorandum that it is written in pen-
oil, and a printed pa[)er is equally hindinj; with a written one;
Saunderson v. Jack.son, 2 B. .S: P. 28S ; Pitts v. Beckett, 18 M.
cV \V. 748: Merritt r. Clason, 12 Johns. 102; Clas(m r. Bailey,
14Jolms. 484: McDonel r. ChamlxM-s, 1 Strobh. (S. C.) Kq.
347.

It would seem that a paper sij^ned by the defendant will bind
him, although formally so worded as to bind the plaintiff only.
Such was the case in Pennimaii v. Hartshorn, 13 Ma.ss. 87, and
the defendant was lield liable on the memorandum. So a bill
of parcels, signed by the seller, is held to be a valid memoran-
dum, although such bills are so worded as to bind the buyer:
Saunderson v. Jackson, supra; Hawkins v. Chace, 19 Pick.
502. See, also, Butler v. Thompson, 02 U. S. 412.

Different kinds of writings as memorcinda. — Any kind of
■writing, duly signed, and sufficient in other respects, will con-

WAIN V. WARLTERS. 1513

stitute a valid memorandum. Thus a letter, Peck v. Vande-
mark, 99 N. Y. 29 (1885) ; Hollis v. Burgess, 37 Kans. 487
1887) ; the return of an officer upon a sale of execution, Reni-
inton V. Linthicum, 14 Pet. 92 ; Hanson v. Barnes, 3 Gill

6 Johns. 359; Sanborn v. Chamberlin, 101 Mass. 409, 41 (J ;
a vote of a corporation, or a city ordinance, duly entered on
the records ; Tufts v. Plymouth Gold Mining Co., 14 Allen
407 ; Johnson v. Trinity Church, 11 Allen 123 ; Chase v. Lowell,

7 Gray 33 ; Grimes v. Hamilton County, 37 la. 290 ; Argus
Co. V. Albany, 55 N. Y. 495 ; District of Columbia v. Johnson,
1 Mackey (D. C.) 51 (1884), are valid memoranda under the
statute. So are telegrams, if intelligible ; Godwin v. Francis,
L. R. 5 C. P. 295 ; Hazard v. Day, 14 Allen 487 ; Tuvan v. Wood,
36 N. Y. 307 ; Duble v. Batts, 38 Tex. 312; Whaley v. Hinch-
man, 22 Mo. App. 483 (1886). So a receipt of part payment,
or a bond for title, given by the vendor of real estate, if it
contain all the stipulations of the contract and a sufficient
description of the subject-matter, is a good memorandvun of
a contract for the sale of land ; Barry v. Coombe, 1 Pet. 640 ;
Williams v. Morris, 95 U. S. 444 ; Smith v. Freeman, 75 Ala.
285 (1885) ; Thornbury v. Masten, 88 N. C. 293 (1883) ; Ellis
V. Bray, 79 Mo. 227 (1883) ; Humbert v. Brisbane, 25 S. C. 506
(1886); Wright v. Mischo, 52 Super. Ct. (N. Y.) 241 (1885).
So a defective deed of conveyance is a good memorandum ;
Reeves v. Pye, 1 Cranch (C. C.) 219 ; Argenbright v. Campbell,
3 H. & M. (Va.) 144 ; Henry v. Root, 33 N. Y. 526 ; Welsh v.
Coley, 82 Ala. 363 (1886). So it has been held that a deed of
conveyance, drawn up and executed with the knowledge of
both parties, with a view to the consummation of the contract
of sale, constitutes a valid memorandum, though ineffectual to
pass title for want of delivery; Jenkins v. Harrison, 66 Ala.
345 (1880). See, also, Bowles v. Woodson, 6 Gratt 78 ; Black-
nail V. Parish, 6 Jones' Eq. (N. C.) 70 ; Thayer v. Luce, 22 Ohio
St. 62; Work v. Corhick, 81 111. 317. But see Cannon v. Can-
non, 26 N. J. Eq. 316 ; Overman v. Kerr, 17 la. 485 ; Parker v.
Parker, 1 Gray 409; Sanborn v. Sanborn, 7 Gray 142; San-
born V. Chamberlin, 101 Mass. 409, per Gray, C. J., contra. So
it has been held that a deed delivered to a third party as an
escrow, may, on the performance of the condition, be enforced
by the grantee as a memorandum of a contract for the sale of
land; Campbell v. Thomas, 42 Wis. 437 (1887) ; Popp v. Swanke,

1514 WAIN V. WAKLTEUS.

«;8 Wis. 304 (1887); Cannon v. Handley, 72 (\il. 133 (1887).
But see Cu^'j^'er r. Lansin*,', 43 N. V. o^O, reversing the decision
in 57 Barb. 421, contra. As to entrie.s by auctioneers and brokers
in their sak's-ljooks and bont^dit and sohl notfs, see infra.

Incorporation of unsigned writings by reference. — It is Well
settled, both in this country and in Knj,dand, that (he nienio-
randuiu niav consist of more than one writing. It is also well
settliMl that if the ditlerenl parts are each si^Mied by the de-
fendant, no express reference to each other is necessary. Parol
evidence is coni{)etent to apply to the contract each part which
is duly sit,Mie(l, just :us in the case of a sin«;le writing' parol
evidence is admissible for the same purpose. See Jenkins v.
Harrison, 00 Ala. 345 (1880), and csuses cited infra. But when
one paper is signed and the othei-s unsigned, all U-ing necessary
to constitute a sullicieiit memorandum, it is uot enough that
the (litTerent pai)ers can Ihj shown by parol to refer to tiie
same contract, but there must Ik^ .some reference in the signed
l)ai)er to th(»se which are unsigned. Thus in the celebrated
case of liovdell v. Drummond, 11 Kast 142, it wius held, where
the defendant sigiu-cl his mime in a Iniok entitled "Shake-
speare Subscribers — thi'ir Sigmitures," that since there was nt)
refcr(!nce in the book to a i)rospect\is issued by the plaintiff,
the two could not be read together so as to establish a suthcient
memorandum under the statute. See Saunderson v. Jackson,
2 B. *fc 1*. 238; Allen r. Bennet, 3 Taunt. 101»; Jackson v.
Lowe, 1 liing. '.*; Johnsou v. Dodgson. 2 M. »fc W. 658; Jacob
V. Kirk, 2 Mood. c\: R. 221 ; I'.uxtoii r. Rust. L \{ 7 Kx. 1,271>;
First Baptist Church v. Bigelow, 10 Wend. 2S ; O'DonneU v.
Leeman, 43 Me. 158; Jefts r. York, 10 (^ish. 3<>2; Khoades v.
Castner, 12 Allen 130; Sanborn v. Noekin, 20 Min. 178; Ridg-
way V. Ingram, 30 Ind. 145; Thayer v. Luce, 22 Ohio St. 02;
Wiley V. Roberts, 27 Mo. 388 ; Shafer v. Farmers' and Mechanics'
Bank, 59 Pa. St. 144; Jolmson v. Buck, 35 X. J. L. 338; Frank
V. Miller, 38 Md. 401; Fisher v. Kuhn, 54 Mi.ss. 480: Lee t'.
Mahoney, 9 la. 344. So in order that the conditions of an
auction sale may form a part of the auctioneer's memorandum
they must be expressly referred to therein; Morton v. Dean, 13
Met. 385; Hinde v. Whitehouse, 7 East 558; Kenworthy v.
Schofield, 2 B. & C. 945 ; Rishton v. Whatmore, 8 Ch. D. 467 ;
Riley v. Farnsworth, 116 Mass. 223. Two well-known cases in
this country would seem to have been decided in violation of

WAIN V. WARLTERS. 1515

the well-recognized principle of law now under consideration.
The first is Salmon Falls Mfg. Co. v. Goddard, 14 How. 44(3, in
which a bill of parcels was allowed to be read in connection with
a memorandum signed by the defendant which contained no
reference to it. In fact the bill of parcels was not in existence
when the memorandum signed by the defendant was drawn
up. In the other case, Lerned v. Wannemacher, 9 Allen 412,
it was held that the two parts of a contract drawn up in
duplicate could be read together in order to establish a suffi-
cient memorandum, although neither contained any internal
reference to the other. Both of these cases have been much
criticised, and it is indeed difficult to reconcile them with
principle or authority. See the dissenting opinion of Mr.
Justice Curtis in Salmon Falls Manf. Co. v. Goddard, supra.
See, also, the language of Doe, C. J., in Brown v. Whipple, 58
N. H. 229 (1877).

The most difficult question on this branch of the subject,
namely, how specific the reference to the unsigned paper must ])e,
and how far parol evidence is admissible to explain and limit
a general reference, has received much attention in the last
few years from the courts both of England and of this country.
As a result of the most recent decisions, it w^ould seem that,
provided it appear in the signed writing that some other paper
is referred to, parol evidence is admissible to apply the genei-al
reference to the particular paper. Thus in the recent case of
Beckwith v. Talbot, 95 U. S. 289 (1877), the unsigned paper
was referred to as " the agreement," and this was held to be a
sufficient reference. Mr. Justice Bradley, in his opinion, saj-s :
" It is undoubtedly a general rule that collateral papers, adduced
to supply the defect of signature of a written agreement under
the Statute of Frauds, should on their face sufficiently demon-
strate their reference to such agreement without the aid of
parol proof. But the rule is not absolute. There may be cases
in which it would be a violation of reason and common sense to
ignore a reference which derives its significance from such proof."
So in Smith v. Colby, 136 Mass. 562 (1884), the words in a
letter " We will undertake the croquet job upon the terms
agreed upon when at your place," were held to contain a suf-
ficiently specific reference to a written agreement signed by the
plaintiff, but not signed by the defendant. But see the
opinion of Doe, C. J., in Brown v. Whipple, 58 N. H. 229, in

1516 WAIN V. WAllLTKliS.

wliicli till' laiif,Mia^e of Mr. Justice Bnulk'y, »upra, is cntni^td.
In u late Kii^^lish ease, Loiij,' c. Millar, 4 C. 1'. D. 450. The.si;;er,
L. .)., would seem to have stjuaiely ueeeptetl im law the propoKJ-
tioii that where it apjjears hy the sii^Mjed writing' thatsonu- othtr
writing is referred to, parol evi<lenie is always adinissihle l<»
identify that writint:^. Ht; says: •• When it is proposed to prove
the existence of a cniitratt of several doi;unients, it must appear
U[)on the face of the instrument, signed l»y the jiarty t<» Im*
charged, that reference is madt; to another document, an<l this
omission cannot he supplitil hy vcrl>al cvidt-ncr. " The other
late ICnglish leases would seem to Ik; in accord; Uidgway r
Wharton, G II. L. ('as. "JOS: Baumann v. James, :> (h. App.
508; Pierce v. Ci)rf, L. II. '.• (J. !'.. JIO; Kishton r. Whatiuore,
8 Ch. I). 4M7; Shardlow r. Coiterell, JO Ch. I). !H) (lH8l);
Kroidieim i>. Johnson, 7 Ch. D. <;<> ; Cave <•. Hastings, 7 C^. B.
1). 1J5; Craig v. Klliott, 1.'. 1.. U. Ir. l':.7 (1884); Studds v.
Watson, 28 Ch. I). 305 (l^^"*)' Wyl.son r. Dunn, ;U Ch. I).
5»)9 (1887). For the latest American law on the suhje<t, .see
Western rni(»n Tel. Co. v. R. U. Co., .-!»; HI. •24»') ; Boston &
Alhany K. K. Co. v. Richardson. 1:'.") Ma.ss. 473; Doherty r.
Hill, 144 .Ma.ss. 4<)5 (18.S7); District of Columhia v. John.son. 1
.Mackey ( D. C.) 51 (1881); Moses r. McClain, Mi .\la. :'.7<>
(188f)); Oliver v. Ala. Gold Life Insu. Co.. /-/., 417; Pr.k
r. Vandemark, 09 N. V. 2!> (lss5); North r. .Mm. 1.1. 7:'. (ia.
400 (1884); Bo.sckeln r. Mc(iowan, \'2 .M... .\pp. 5o7 (ISS'J);
Tiee v. Freeman, 30 Min. 389 (1883); Smith i-. Jone.s, 00 (la.
338 (1881).

Papers physically connected at the time of signing may In-
read together , and it is immaterial that they suhse(|uently
become severed; Kcnwoithy v. Schotield, - !>. \- ( '. 1H5. fur
Holroyd, J.; Tallman r. Franklin, 14 N. V. 5,s4.

The signature. — The statute not only requires a writing, hut
requires also that the writing should be aii/ntil by the party
to be charged, or his agent thereunto lawfully authorized. The
courts have interpreted the word " signed " as employed in the
statute in contradistinction to the word "subscribed." " If this
were the first case on the Statute of Frauds, I should have
doubted whether, if the vendee put his name at the top of the
document, this would have been a signing within the statutes.
But it has been decided that it does not signify where the name
is put, if it be put somewhere on the document by the parties

WAIN V. WARLTERS.

1517

themselves who are to be bound by the signature, or by the per-
son having authority from them to make a contract on their
behalf." Crompton, J., in Durrell v. Evans, 31 L. J. Ex. 337,
clscided in the Exchequer Chamber in 18G2.

The law is well settled, accordingly, both in England and in
this country, that the signature may be at the top or in the mid-
dle of the writing, as well as at the end. So the signature may be
by initials ; Thillimore v. Barry, 1 Camp. 513 ; Sanborn v. Flag-
ler, 9 Allen 474. And a printed signature will satisfy the stat-
ute ; Schneider v. Norris, 2 M. & S. 286; Drury v. Young, 58
Md. 546 (1882). The written or printed name, however,
wherever it is placed in the document, must be intended to
authenticate it. It is always a question for the jury, whether
the defendant adopted the printed signature pro hac vice and
whether he intended to be bound by the writing as it stood, or
whether it was left unsigned at the foot because he refused to
complete it. Tlius in Johnson v. Dodgson, 2 M. & W. 653, the
memorandum was drawn up by the defendant in his own hand-
writing, " Sold John Dodgson, etc.," and signed at the foot by
the plaintiff only, but remained in the possession of the defend-
ant. It was held by the court, that under these circumstances,
it was plain that the defendant intended to be bound by his
signature at the top of the memorandum. So in Schneider v.
Norris, 2 M. & S. 286, where the seller tilled up the blank in a
printed bill of parcels, with the name of the purchaser, and
afterwards delivered it to him, it Avas held that this was a suf-
ficient adoption of the seller's name printed at the top. So m
a recent Mayland decision, Drury v. Young, 58 Md. 546 (1882),
an instructive case upon this branch of the subject, the only
signature was the following letter-head, ''Office of Drury,
Ijams & Rankin, wholesale and retail grocers, etc.," and the
court were inclined to hold that this would be a sufficient signa-
ture if brought home to the defendant, although the writing
remained in his possession and was not signed by the plaintiff.
But in Boardman v. Spooner, 13 Allen 353, where the pur-
chaser stamped his name and a date on the bill of parcels, with-
out delivering it to the seller, in the absence of evidence to
show that he had adopted such a stamp as a signature, and had
affixed it to the instrument with the intent to bind himself
thereby, it was held that there was no memorandum properly
signed under the statute. See, also, in general, Saunderson v.

lol8 WAIN V. \vai:lti:u8.

Jackson, J l'». .V I'. 2:JH ; Siul r. liounlilloii. -J*; L. .!.('. P. 78;
Kntiihuiin <'. .loliiison, 7 C\i. I). HO; ( 'iilun v. ("iiton, L. R. -J 11.
L. 127; JoiJL's r. Victoria (Jnivin^' Dtuk Co., 2 C^. li. 1). oli:
Bennett r. Brunilitt, L. li. :i C 1*. 2M; lluwkeswoith r. CluifT. y,
r)4 I.. .1. Cli. 72 (1«8()); Clasou r. IJailey, 14 Johns. 4H4 ;
Penniniiin c Hartshorn, l^J Mass. H7 ; IMen »•. Kiltrucl|,'e, 7
Mass. 2:;;'.; Ilodykins r. Bond, 1 N. II. 2S7 ; Hawkins v. Chiiee,
lU I'iik. r)05; Sanborn r. S;inhorn, 7 (iray 11-; I la/.ar«l r. I)ay»
14 Allen 1S7.

Tnder the New York statute, whieli reijuires the nienioran-
duni to be subscribed, it is lield tliat actual suljscription is
necessary: Davis /•. Shields, 2t; W.nd. :'- 11 : Medivern r. Fleui-
niinrr, \2 Daly ( N. V.) 28i> (l«s4).

Ill Sclby V. Selby, 3 Meriv. 2, it w;is held by Sir William
(irant, that a letter sijj^ned "your affectionate mother," con-
tained no sufhcient sijjnaturt' within the intent of the statute;
and see Skcllon r. ('(de, 1 De (J. iV J. r>s7. These eases have
been somewhat severely criticised as jmttinj,' too narrow a con-
struction upon tin- statute, and, as has U'eii said, it is hard to
distinguish between initials and any otlu-r description of his
identity which may be adopted by the signer of a paper.

Authority to affix signature. — l^xce[>ting in those states, like
New llam[)shire, where the authi>rity of the agent is expressly
required to be in writing, a parol authority is suflieient ; and
a subsequent ratification is eipiivalent to ;i prior authority;
Soames v. Spencer, 1 Dowl. «.S: \i. 1^2; MeI.ean v. Dunn, 4 Ming.
722 ; Davis r. Shields, 24 Wend. 324 ; Kggleston v. Wagner,
4i; Mich. »;10 (18S1): Hawkins v. Baker, 4>> X. V. (^HU\.

An agent authori/x'd to make in behalf of his princijtal a con-
tract within the Statute of Frautls, has also an authority by
implicaticMi to bind him by a note or memorandum : and even
after the termination of the agency, it seems that the agent may
still make and deliver to the other contracting jnirty a mem-
orandum binding on his principal, unless his authority so to do
has been expressly revoked ; Williams v. Bacon, 2 Gray 387,
per Merrick, J.; Elliot v. Barrett, 144 Mass. 256 (1887). But
see Smith v. Arnold, 5 Mas. (C. C.) 414. See infra as to auc-
tioneers. It is of course unnecessary that the agent's name
should appear in the memorandum ; Hunter v. Giddings, 07
Mass. 41. See i7ifra as to the necessity of the principal's name
appearing.

WAIN V. WARLTERS. 1619

An agent cannot delegate his authority to make a memoran-
dum, unless so empowered by his principal ; Townsend v. Drake-
ford, 1 C. & K. 20 ; Henderson v. Barnewall, 1 Y. & J. 387.
Bat see infra as to auctioneers' clerks.

It is well established that neither of the contracting parties
can be the agent of the other for the purpose of making and
signing a valid memorandum within the Statute of Frauds ;
Wright V. Dannah, 2 Camp. 203 ; Bird v. Boulter, 4 B. & Ad.
443 ; Farebrother v. Simmons, 5 B. & Aid. 383 ; Sharman v.
Brandt, L. R. 6 Q. B. 720 ; Murphy v. Boise, L. R. 10 Ex. 126 ;
Robinson v. Garth, 6 Ala. 204. But see Ennis v. Walker, 3
Blackf. 472 ; Johnson v. Buck, 35 N. J. L. 338. But the agent
of one party may, if expressly so authorized, sign the memo-
randum in belialf of the other party ; Graham v. Muson, 5 Bing.
N. C. 603 ; Graham v. Fretwell, 3 M. & G. 368 ; Simmons v.
Humble, 13 C. B. N. S. 258. And see Bamber v. Savage, 52
Wis. 110 (1881).

Entries by auctioneers. — A common application of this prin-
ciple is the authority of an auctioneer, who is, strictly speaking,
the agent of the seller, to bind the purchaser as well as the
seller by entries in his books or by other writings ; Hinde • v.
Whitehouse, 7 East 558 ; Morton v. Dean, 13 Met. 385 ; Gill
V. Bicknell, 2 Gush. 355, ])er Shaw, C. J. ; Springer v. Klein-
sorge, 83 Mo. 152 (1884). On the principle laid down supra^
the auctioneer cannot himself sue on a contract within the
statute evidenced by a memorandum made by himself ; Fare-
brother V. Simmons, supra ; Rayner v. Linthorne, 2 C. & P. 124;
Smith V. Arnold, 5 Mas. (C. C.) 417 ; Bent v. Cobb, 9 Gray
397 ; Brent v. Green, 6 Leigh 16 ; and see cases cited supra.

Auctioneers differ from other agents in that their memoranda
must be made at the time of the sale, at least in order to bind
the puroliaser; Buckmaster v. Harrop, 13 Ves. 456; Mews v.
Can, 1 H. & N. 484; Smith v. Arnold, supra; Horton v.
McCarty, 53 Me. 394 ; Williams v. Bacon, 2 Gray 387 ; Bam-
ber V. Savage, 52 Wis. Ill (1881); Hewes v. Taylor, 70
Penn. St. 387. In a recent Massachusetts case, Marcus v.
Boston, 136 Mass. 350 (1884), it was held that a bill in
equity could not be maintained which was brought by a per-
son claiming to be the highest bidder at an auction sale of
land, against the auctioneer and the person to whom the
land was struck off, and the memorandum of sale executed.

ir)20 WAIN V. \VAltLTKIt8

to compel the iiuctioneer to si^'ii a luemoruiulum of sale declar-
ing,' the phiiutilf to \>v the ])iiich;user.

There is ^'iiMt iliversity amoiij^ the reported ciuscs ius l»)
whether ;iu iiuctioneer eun dele^Mte his authority to sij;n a ineiii-
oraiidiiiii to his tl.-rk, hut it would seem hy the weight of
authoritv that he can so deh-j^'ate it; Coles r, Treetithiek, U Ves.
•2-'A; Bird r. Boulter, 4 B. iN: Ad. 44:i; Henderson r. Harnewidl,
1 Y. & J. 387: (iill »•• Bieknell, '2 Cush. :'.:.:.; Fro>t ,-. Hill, 3
Wend. 38«;; Doty r. Wilder, lo 111. 4UT ; Alna r. Plummer, 4
(ireenl. 2')8 ; Hart v. Wi>ods, 7 Blaekf. o»I8. But see I'ierce
V. Corf, L. K. '.» C^. B. Jlo; Mtjulows v. Mea<h»ws, 8 McCord
(S. C.) Law 458; Christie v. Simpson, 1 Rich. (S. C.) Law
407 coiitni.

By the great weight of authority, in tin- <ase of an aiu'tion-
eer, as of other agents, his actual signature is unnecessary. It
is enough if the memorandum contain the names of the [»ur-
chaser and seller, together witii all the I'ssential terms of the
contract, and it is immaterial if his own name does n«)t appi-ar in
the writing; Morton r. Dean, 13 Met. 3S"» ; Fcssenden r. Ma.s-
sey, 11 Cush. 127; Ctxldington v. (loddard, lt> (iray 43«» ; Mer-
ritt V. Clason, 12 Johns. 102; Springer v. Klein.sorge, 83 Mo.
152 (1884). But see Uafferty v. Lougee, G3 X. IL '. t ( lss4)
contra.

Brokers' entries, bought and sold notes. — .\ hroker, like an
auctioneer, is the agent of lK)th i)arties, an«l Ijotii are Imund hy
his memorandum. In this country it is well estahlished law
that the entries in a hrokei's hooks constitute a good memoran-
dum within the statute, and in England the better opinion
would now seem to he to the same etTeet, although in the past
there has been among the Lnglish judges a great diversity of
views upon the subject; Maclean v. Dunn, 4 Bing. 722;
Thointon v. Charles, 1> M. »S: W. S02 ; Thonijison r. (iardiner,
1 C. P. D. 777; Merritt v. Clason, 12 Johns. 102; Davis v.
Shields, 26 Wend. 341; Boardman r. Spooner, 13 Allen 353;
Coddington v. Goddard, 10 Gray 436. In England the law
seems to be that the broker's entry must Iw signed by him, and
that his own name must appear; (irant c. Fletcher, 5 B. & C.
436; Gorm v. Afialo, 6 B. & C. 117; Henderson v. Barnewall,
1 Y. & J. 387; while in tliis country it seems to be assumed
that the same principle applies as in the case of auctioneers'
entries. See cases cited supra.

WAIN V. WAKLTERS. 1521

The bought and sold notes of a broker, if they correspond
with one another, are hekl to be a sulticient memorandum
within the statute ; Hawes v. Foster, 1 M. & R. 368 ; Parton v.
Crofts, 33 L. J. C. P. 189 ; Suydam v. Ckxrk, 2 Sandf. 133 ;
Heffron v. Armsby, 61 Mich. 505 (1886) ; Greeley-Burnham Co.
V. Capen, 23 Mo. App. 301 (1886) ; and in LangdelFs Cases on
Sales (Index, pp. 1035, 1036) the author argues with much
force of reasoning that even a disagreement in the notes should
not prevent a recovery, provided the note sued on contains all
the stipulations of the verbal agreement. See Thompson v.
Gardiner, supra; Newberry v. Wall, 84 N. Y. 576; Butler v.
Thompson, 92 U. S. 412. It has been decided in England that
if the bought and sold notes disagree, resort may be had to the
broker's entry as containing the true stipulations of the con-
tract; Sieve Wright v. Archibald, 17 Q. B. 103. But the im-
portant question as to which is to be considered the memoran-
dum, the broker's entry or the bought and sold notes, when the
latter agree with each other but disagree with the entry, seems
to be still undecided. See Langdell's Cases on Sales, cited
supra.

III. Contents of memorandum. In general. — A memorandum
within the statute, of whatever description, and whether con-
tained in one writing or in many, must correspond with the
previous verbal agreement. If stipulations are added in the
writing which were not contained in the verbal agreement,
or if any essential stipulations of the original contract are
omitted, the memorandum is defective. " Unless the essential
terms of the sale can be ascertained from the writing itself, or
by reference in it to something else, the writing is not a com-
pliance with the statute ; and if the agreement be thus defec-
tive it cannot be supplied by parol proof, for that would at
once introduce all the mischiefs which the statute was intended
to prevent." Mr. Justice Clifford, in Williams v. Morris, 95
U. S. 444. Thus in Seaman v. Drake, 97 N. Y. 230 (1884), a
memorandum of a contract of employment for more than a
year was held to be insufficient because no mention was made
therein of the nature of the employment. So in Webster v.
Clark, 60 N. H. 36 (1880), a memorandum of a contract for
a lease of real estate, " buildings to be erected by the lessor,"
was held defective, because the writing did not specify the kind
of buildino-s. So the memorandum of such a contract must

Ifj'J'J WAIN V. \v.\i:i;ii:i:s.

specify the exact duy wlieii the term is to Ix-^'in ; M.ii>hiill i*.

BenulK't', !■» Cli- I>- -•»'^ ^ -^^'^y *'• 'I'1"»'»I»-^ -"^ ^'''- ^^ "'*'♦

(1«S2); riuhiii /•• Tedcastle, 1.") L. K. Ir. 1»;'.>; Whit. -.
McMahon, IS L. l:. Ir. 400. So in May i'. Wiiid, 134 Mass.
127 (1S8I5), where iiii esseiitiiil eh'ineiit of tlie eontruet was
left to he aj,Meeil upon at some time in the future, tlie writ-
in^r was hehl insullieient. So in Asheroft r. Iluttcrworlli,
l:3<; Mass. 511 (1884), wliere the memoramhim was, " NVc will

«iil»l»ly yoii ^vith Kii"K^' kI'^"*"* '^^ ^''^' ^'''"*' '■''^'' ^^•^' ■'*'M4'L^' •''^•' " '^
was hehl that this was not explicit enoui,'h to satisfy the statute.
See mfni as to the price. St) if ^oods are .sold "snhject to the
buyer's approval," that condition must appear in the memoran-
dum ; Boardman v. Spooner, 13 .Vllen 3o3. See, also, in jren-
eral, M'LeiiM r. NiroU, 7 .hu. N. S. Wi) ; Uishlon r. Whatmore,
8 Ch. 1). 4ti7 ; X'inceiit r. Vincent, .V) L. .1. Ch. I). 181
(188(;); (irace r. Deunison, 114 Mass. If,; |mIz r. Toney, 118
Miiss. 100; fJardiier r. lla/.ilt(.n, \ -\ Mass. 4l>4 ; Kemick i'.
Sandford, lis Muss. lo2: Ncwhcrry r. Wall, «'.."> N. V. 4S4;
Ullman r. Meyer, 10 Ahh. (N.Y.) N. ('. 281 (1882); M.WiU
liams V. Lawless, 15 Neh. 1:',1 (18S3); Hppich v. Clifford, G
Col. 41)3; UatTerty r. Lou^a-e, «;3 N. II. 54 (1884).

Parties. — Bv an almost unl>roken current of ilecisions it is
held that the nan\es of the contracting; parties must appear
in the nicnioranduni ; Champion '•. IMummer, 1 N. \l. 2.")2 ;
Klinitz /'. Surry, 5 Ksp. 2»>7 ; Williiims r. Byrnes, 'J .Jur. N. S.
3(;3; An(U'r.s(.n r. Harold, lO Ohio 31M>: Calkins v. Falk. 38
How. I'l. il.<;2; McElroy r. Leery, Ol Md. 397 (1883); H;iw-
kiusou r. Harmon, f)^ Wis. 551 (188«)) ; Lincoln v. Va'w Tre-
servin<,K'o., 132 Mass. 129 (1882). So it has l)een held that
a memoranilum of a contract of ji^uaranty must contain tlie
name of the creditor; Williams r. Lake, 2 El. & E. 349.

It would seem that a memorandum of a contract of sale must
show who is the buyer and who is the seller ; Bailey v. Og^den, 3
Johns. 399. See the di.ssenting opinion of Mr. Justice Curtis,
in Salmon Falls Manf. Co. v. Goddard, 14 How. 440 ; but the
courts have generally been disinclined to reject parol evidence
introduced for the purpose of explaining the relationship of the
parties ; Newell v. Radford, L. R. 3 C. P. 52 ; Salmon Falls
Manf. Co. V. Goddard, supra ; Coddington v. Goddard, 16 Gray
436 ; Sanborn v. Flagler, 9 Allen 474.

It would seem that the parties to the contract must be re-

WAIN V. WARLTERS. 1523

ferred to in the memorandum qua contracting parties. Thus
in Yanderbergh v. Spooner, L. R. 1 Ex. 316, the following mem-
orandum was held defective : " D. Spooner agrees to buy the
whole of the lots of marble purchased by jVIr. Vanderbergh,
etc." So by a recent decision in the U. S. Supreme Court it
was determined in the case of an auctioneer's memorandum
that a reference to the seller, not as seller, but as a person of
whom information about the property could be obtained, was
faulty; Grafton v. Cummings, 99 U. S. 100 (1878).

In Sale v. Lambert, L. R. 18 Eq. 1, it was held that a descrip-
tion of the seller as " the proprietor " was a suihcient reference,
although the seller's name was not mentioned. See, also, Com-
mins V. Scott, L. R. 20 Eq. 11. But a reference to him as "the
vendor," is held insufficient ; Potter v. Duffield, L. R. 18 Eq. 4.
See, also, Rossiter v. Miller, 3 App. Cas. 1121 ; Jarrett v. Hunter,
34 Ch. D. 182 (1886) ; Re Hudson, 54 L. J. Ch. 811 (1885).
Compare Jones v. Dow, 142 Mass. 130 (1886).

The decisions are uniformly to the effect that in a memoran-
dum signed by an agent, the principal's name need not appear ;
Kenworthy v. Scofield, 2 B. & C. 945 ; Williams v. Bacon, 2
Gray 387 ; McWilliams v. Lawless, 15 Neb. 131 (1883) ; Cona-
Avay V. Sweeney, 24 W. Va. 643 (1884) ; Neaves v. Mining Co.,
90 N. C. 412. This doctrine, somewhat questionable on prin-
ciple, the courts have refused to extend to the case of an
auctioneer's memorandum. It is held, accordingly, that his
signature will not supply the place of a reference to the name
of even the seller; Potter v. Duffield, supra; Sherburne v.
Shaw, 1 N. H. 157 ; Grafton v. Cummings, swpra.

Price. — In a contract of sale it is held that the price, if
agreed upon by the parties, is one of the essential terms of the
contract, and must be contained in the memorandum ; and the
same rule prevails even in those jurisdictions where it is pro-
vided by statute that the consideration need not be expressed
in the memorandum ; Aeebal v. Levy, 10 Bing. 376 ; Elmore
V. Kingscote, 5 B. ^ C. 583 ; Smith v. Arnold, 5 Mas. (C. C.)
416 ; Soles v. Hickman, 20 Penn. St. 180 ; O'Neill v. Crane, 67
Mo. 250 ; Williams v. Morris, 95 U. S. 444 ; Ascroft v. Butter-
worth, 136 Mass. 511 (1884) ; Phelps v. Stillings, 60 N. H. 505
(1881). So in a receipt for part payment of the price of real
estate it would seem that the full price agreed upon must be
stated; Phillips v. Adams, 70 Ala. 373 (1881); Wright v.

1524 WAIN V. \N AULTKUS.

Mischo, .V2 N. V. SuiJtT. C't. -41 (1^H.'»). Hut see Thonibury
V. Musteii, 8H N. C. 203 (18«8): Kllis v. limy, 7l» Mo. 227
(1883), rontnt. U M(» pricf Im* jij^reed ujmuj l»y the purtifM,
none, of course, netil be stated in the nienioninihun ; Iloudly
V. McLiiue, 10 n\u^. 482; Ashtroft r. Morrin, 4 M. vV (J. 450;
Ar^ais Co. r. AllKiny, o.") X. Y. 40o ; Norton v. (i»le, l>5 111. r>38.
But st'f Jiinu's V. Muir, 33 .Mieh, 224.

Credit. — If ii s;il»' is niiule on citMlit the teiins of the credit
must he stiitt'd iu thf nieiuoninduni ; Wii^iit v. Week**, 2o N. Y.
ir,8; Norris r. lUair, 31» Ind. '.•<>; WiUi.ims »•. Kohinson, 73 Me.
18H; Schroede r. TaiiU', 11 .Mo. App. 2»»7 (iHMl); (Jiiult o.
Storniont, 51 Mi( h. r»3<5 (1883). It wouhl seenj that if nothinf;^
is said as to the time of payment, the memorandum may Iw
silent on the subject, since it will Ik; presumed to \tv a eiwh
tnmsactiou ; Hawkins r. Chaee, 10 Pick. 502. Hut see the
laii^ua^M- lit" Ml. .Instil (• ( urtis in Salmon Falls .Manf. Co. v.
(ioddard, 1 1 How. 44*;.

^Warranty. — It was decided in an early New York case that
if ^oods are sold with an cxpre.s.s warranty it must U' ho stated
in the nicmoianduni ; I'clticr »•. Collins, 3 Wmd. 45!>. Hut it
would sccni thill this must ilepend uj)on wluther tin* warranty
is intended by the parties as a condition of the sale or lus an
indi'pt'udent iii^rcement.

Time and place of delivery. — A memorandum of ]l contract
for the saU' of ^oo<ls within the statute must state the time
ami place of delivery, if ai^reeil upon by the partie.s ; otherwi.se
not; Hawkins r. Chace, 10 I'iek. 502; Kriete r, Myer, iH Md.
iniH; Smith r. Shell, H2 Mo. 215 (lss4); (Jrceleyd'.urnham Co.
V. Capen, 23 M... A pp. :{0l ( 1HS»;).

Description of subject-matter. — There have lx;en many caseS
in the last tew years with reference to the adequacy of the
description of the subject-matter contained in the memorandum.
The later tendency seems to lx», as in the ca.se of the incorpora-
tion of unsigned papei-s referred to in the signed writing, in the
direction of admitting the introduction of parol evidence in
order to establish the identity of the subject-matter. There is,
however, considerable conflict among the decisions as to how
specitic a description the memorandum must contain. In a
recent Michigan case, the court say in reference to the suf-
ficiency of the description in a memorandum of the sale of real
estate : '' The degree of certainty with which the premises must

WAIN V. WAliLTEitS. 1525

be denoted is defined in many books, and the cases are extremely
numerous in wliich tlie subject lias been illustrated. Tliey are
not all harmonious. But they agree in this, that it is not essen-
tial that the description have such pai'ticulars and tokens of
identification as to render a resort to extrinsic aid entirely need-
less when the writing comes to be applied to the subject-matter.
The terms may be abstract and of a general nature, but they
must be sufficient to fit and comprehend the property which is
the subject of the transaction, so that with the assistance of
external evidence the description, without being contradicted
or added to, can be connected with, and applied to, the very
property intended, and to the exclusion of all other property."
Eggleston v. Wagner, 46 Mich. GIO (1881). Thus in Hurley
V. Brown, 98 Mass. 545, it was held that the words, " A lot of
land situated on Unity Street, Lynn, Mass.," was a sufficient
description, and that parol evidence was admissible to show
which lot of land on the street belonged to the vendor. See,
also, Scanlan v. Geddes, 112 Mass. 15 ; Slater v. Smith, 117
Mass. 96 ; Mead v. Parker, 115 Mass. 413 ; Mansfield v. Hodg-
don, S. C. Mass. June 1888. In Mead v. Parker, there was no
mention in the body of the writing of the town in wliich the
property was situated, but it was held that it was presumed to
be situated in the town at which the writing was dated. In
Doherty v. Hill, 144 :\rass. 465 (1887), it was held that such a
description was insufficient if it appeared in evidence that the
vendor owned more than one lot of land on the street mentioned
in the memorandum. The language of ]Mr. Justice Holmes in
this case, is especially instructive. " The plaintiff argues that
there is an ambiguity introduced by parol, and that, therefore,
it may be removed by parol. But the statement seems to
us misleading. The words show on their face that they may be
applicable to one estate only, or to more than one. If, on the
existing facts, they apply only to one, then the document iden-
tifies the land ; if not, it fails to do so. In every case, the words
used must be translated into things and facts by parol evidence.
But if when so translated, they do not identify the estate
intended, as the only one which would satisfy the description,
they do not satisfy the statute." If, accordingly, it is impossi-
ble to identify the subject-matter by parol evidence, the mem-
orandum is insufficient. Oral evidence could not of course be
admitted to show the original intention of the parties, when

1;VJ»J WAIN V. NVAIILTKKS.

undisclostMl hy i\n- writing, sintir this \v«)ul«l |tlutnly Imj aildia^
to tlu' iiu'iii(>niii(liiin, iiiid u iiiaiiifust violutioii of tliu Htatiitv.
'riiu-> tlu' words "a pitM-e of laiul," without inoii', is a loo inileti-
nitr <lts(iii»tioii ; Wla-lan t-. Sullivan, 102 Mass. 204. So the
following' (Ifscriptioiis are insuHiirifHt for tlu; Haine re lUion :
" Thirty acres of laiKJ," ilMmlK-rt r. HriskiUf, 2;') S. C. fttni ( 1HH6);
'' Your housf," Wlialry »•. lliiiclmiaii, 22 .Mo. .Ap).. 4h:; (1HK»;).
Sec, also, to the same elTeet, Saulxiru v. Nttehin, 20 .Miii. l»»;l;
Tiee /•. Freeman, :iO .Min. :JH() (18K3) ; Fry i-. IMatt, 32 KaiiH.
<;2 ( 1«84 ) ; i'iei-soii r. Hallanl, 32 .Mill. 2i;3 ( 1SH4 ) ; S.hnKMle r.
TaalK!, 11 .Mo. Apj). 217 (issl). But "the Snow farm" is a
sullieient deseriplion ; IJoUis r. IJur^ess, 37 Kans, 4^7 (1887).
So "all of section 3»J in township 15," Vindj^uest v. Perky,
lt» Nel). 2H4. So "title or ilaini to property l»ou^d»t of A. & H.,
an<l known as the (Jentile property," Smith r. Freeman, 75 Ala.
285 (1HH5). For other txamples of a sullieient <leseription, see
I'eMninian v. Ilaitshoin, 1:'. .Mass. S7 ; jiarry e. (\)omlM>, 1 Pet.
(140: (iowen r. Kh.u.s, lol .Mass. 441» ; Bishop r. Fletcher, 48
Mi. h. 555 (18H2); Thornhury r. Masten, 88 N. ('. 293 (1888);
I'ul.e r. Miller, Hi Ind. 1 '.'<); Fisher v. Kuhn, 54 .Miss. 4Ml. In
Claik r. ( 'hand»erlin, 112 .Mass. ll>, it was hehl that a de.Hcrii>-
tioii of ccitain lots Ity numUr. without n-ference to any plan,
was insuflicient. But si-e Springer »•. Klcirsorjje, 83 .M^. 152
(18H4) onfni.

In lCiiL,daiid the law would scciu to 1m' even more lil)eral than
in this couiitry in allowini^ external t-viileiuH' to In* intro(luced
for the i)Urposi' of identifyini; th»' sulijrel-matt«'r. 'i'hc follow-
inir have hi-en held a sutlitit-nt description: "my iiouse," Cow-
ley V. Watts, 17 .lur. \~-: "the property in C'jil>le Street,"
Bleakley v. Smith, 11 Sim. 150; "the house in Newjiort," 3 M.
& K. 353; "the intended new [>ul)lie house at Putney," Wood
V. Scarth, 2 K. & J. 33; "the premises," ihi,{. ; "the .lolly
Sailors' otlices," Naylor v. (Joodall. 47 L. .1. ( h. 53; ♦•this
place," Waldron v. Jacob, 5 Jr. K. Va\. 1^J1 ; " juoperty j)ur-
chased at Sun Inn, Pinxton, on 21Hli March." Shardlow v. Cot-
terell, 20 C'li. I). 90. See, also, .M'Murray r. Spicer, L. K. 5 Fq.
527; Ex parte Nat. Prov. Bank., 4 Ch. I). 241: Nene Valley
Drainuoe Connnissioners v. Dunkley, 4 Ch. I). 1.

The consideration. — In Wain v. Warlters, principal case, it
was decided that in the memorandum of contracts within the
fourth section of the statute the consideration must be ex-

WAIN V. ^yARLTERS. 1527

pressed. This decision was followed in Saunders v. Wakefield,
4 B. & Aid. 595. In Egerton v. Mathews, 6 East 307, the
court distinguished between the word "agreement" in the
fourth section and the words " contract " an d "bargain" em-
ployed in the seventeenth section of the statute, expressing the
opinion that under the latter section the consideration of the
contract need not be expressed in the memorandum. But see
supra as to the price. In the year 1856 it was enacted by par-
liament that the consideration of a contract of guaranty need
not be expressed in the memorandum. In this country the
whole subject is largely regulated by acts of the legislatures of
the several states; in many cases these acts being simply declar-
atory of the law as laid down by the court of last resort, and
in other cases changing the law. See Packard v. Richardson,
17 Mass. 112 ; Kerr v. Shaw, 13 Johns. 236 ; Patchin v. Swift,
21 Vt. 292 ; Gillighan v. Boardman, 29 Me. 79 ; Reed v. Evans,
17 Ohio 128 ; Hutton v. Patchin, 26 Md. 228 ; Goodnow v.
Bond, 59 N. H. 150 (1879) ; Sanders v. Barlow, 21 Fed. Rep.
836 (1884).

In the state of New York at the present time the law on this
subject seems to be in a state of great uncertainty. It w^as early
decided by the courts of that state that the consideration
must be denoted in the writing. A declaratory statute was
afterwards passed, and in 1863 this statute was repealed. The
effect of the repeal of this statute seems to be still undecided.
In Castle v. Beardsley, 10 Hun 343, and Spej'crs v. Lambert,
16 Abb. Pr. N. S. 309, opposite views are adopted. For an
elaborate discussion of the present New York law see Drake v.
Seaman, 97 N. Y. 230 (1884). See, also, Evansville Nat. Bank
V. Kaufman, 93 N. Y. 273.

Both in England and in this country it has always been held
that a general reference to the consideration is sufficient and
that it may be inferred by implication ; Stadt v. Sill, 9 East
348; Ryde v. Curtis, 8 D. & R. 62 ; Pace v. Marsh, 1 Bing.
216 ; Haigh v. Brooks, 10 Ad. & E. 309 ; Leonard v. Vreden-
burgh, 8 Johns. 40 ; Church v. Brown, 21 N. Y. 315 ; Williams
V. Ketchum, 19 Wis. 231 ; Miller v. Cook, 23 N. Y. 495.

IV. Alteration of contracts within the statute by parol. —
It is well established law that those written contracts to which
the Statute of Frauds has no application may be subsequently,
at any time before breach, altered or varied in their terms,

l')*28 NVAIN V. WAKLTKICS.

or iiljsulutt'ly icscindetl, by ii verluil iij^rffiiunl Ui«..ii inr
piirti* s ; (i<iss v. Loul Nii<(t'iit, .'> li. iV A«l. »»'>, y^^r Di'iiiiiaii, C\ J.
It' thf contract is witliiii the Mtutute it would hcciii that all
modititatioiis of such a written contract must thcnistdvcs U* in
writing. There is considcrahlc conflict, ho\vcv»'r, among the
earlier Knglish cjiHes on the subject, and the law «»f Knglaml
and of Massachusetts is entirely at Viiriancc. On one ]>oint,
however, there is no disagreement, namely, that the plaintiff
must declare upon the written agreement, and not U{H>n the
writing and the parol moditication together; (iosM r. Lord
Nugent, xiipni ; Stead v. Dauln'r, 10 Ad. tV' Kl. .')7 ; Whittier r.
Dana, 10 Allen -VI^'k This would seem to have Ix'cn the true
ground of decision in Marshall >•. Lynn, ♦> M A W 10i». See
Hickniaii r. Ilaynes, L. U. lo (' j'. r>i»S. iJul in ( ummings v.
Arnold, :; Met. 4S»;, and Stearns r. Hall, J» ("ush. M, it was
held that a written contract within the Htatute might be modi-
fied by parol, and that a readiness to perform the sulistituted
contract woidd avail either the plaintiff or the defendant to
excuse the non-performanc«' of the original agreenient. In
England, on the other hand, it is held that an actuiil i>erform-
ance of the sulistituted contract and acceptance thereof in
necessary, which will operate by way «»f accord an<l satisfaction
of any breach of the written agreement; I'arke, H., in Moore v.
Campbell, 10 Ex. ;{:i:5 ; Leather Cloth Co. r Ili.'ronimus, L. R.
10 il II. 140. Se.- Long v. IlarlwcU, M N. J. L. ll*;, <i.v„r</.

Ill llickiuan r. Ibiyncs, L. U. 10 C. I*. o98, Lindley, J., says:
"The result of the c;uses appears to Ik* that neither a plaintiff nor
a defendant can at law avail himself of a parol agreement to
vary or enlarge the time for performing a contract previously
entered into in writing, and required so to Ik; by the Statute of
Fraud.;." But in this case the law is stated to Ik^ that either
the })laintiff or defendant is excused from the performance of
the original contract, if the failurt' to perform was the result
of the oral reijuest of the other party, since the allegation of
readiness to perform according to the terms of that contract
can then be sustained. Such an oral modification, however,
cannot avail the party at whose request the change was made.
See, also, Cuff v. Penn, 1 M. & S. 21, a decision which on this
principle would seem to have been in harmony with the other
English cases; Stead v. Dauber, 10 Ad. & El. 57; Tyers v.
Rosedale Iron Co., L. R. 10 Ex. lOo: Plevins v. Downing, 1

WAIN V. WARLTEKS. 1529

C. P. D. 220 ; Stewart v. Eddowes, L. R. 9 C. P. 311 ; Ogle v.
Lord Vane, L. R. 2 Q. B. 275 ; L. R. 3 Q. B. 272 ; Saunderson
V. Graves, L. R. 10 Ex. 234. See, also, Stryker v. Vanderbilt,
27 N. J. L. 08, 75 ; Blood v. Goodrich, 9 Wend. 68 ; Ladd v.
King, 1 R. I. 224 ; Hill v. Blake, 97 N. Y. 216 (1884) ; Bar-
ton V. Gray, 57 Mich. 622, 632 (1885) ; Alta v. Bartholomew,
69 Wis. 43 (1887) accord. See, however, Blanchard v. Trim, 38
N. Y. 227; Organ v. Stewart, 60 N. Y. 413, 419; Swain v. Sea-
mens, 9 Wall. 254, 277, which seem to favor the less stringent
rule prevailing in Massachusetts.

It was decided in England, soon after the passage of the stat-
ute, that a written contract Avhich fell within its provisions
could be rescinded by parol ; Gorman v. Salisbury, 1 Vern. 240.
See, also, Norton v. Simons, 124 Mass. 19. In Noble v. Ward,
L. R. 1 Ex. 117, in which this is assumed to be law, the impor-
tant question arose as to whether a substituted oral agreement,
invalid under the statute, had the effect of rescinding the origi-
nal contract. See, also, Moore v. Campbell, 10 Ex. 323. In
Noble V. Ward, it was held that such an invalid substituted
agreement did not per se operate as a rescission of the original
contract. The question would seem to depend upon the inten-
tion of the parties, whether or not the continuance of the
original contract was meant to l)e contingent upon the validity
of the verbal agreement, and this would appear to be a ques-
tion of fact for the jury.

noDSALL r. i;()Li)i:i;o.

MICH. 48 (ih'o. •■). — /.v Tin: Av.wr.v hkxcii.

[KKi'oitrr.K '.» KAST, 72.]

A n'tiiitor mai/ ini<t(ir the life of hin ilfhtor to tlw extent of hi»
debt ; hut mirh a contract /» miltHtuntitilli/ a contract of imlem-
nltif aijiiinxt tlic Iohh of the deht : and there/ore it\ after the
death I'f the dehtor, hitt execntort* paif the deht to the creditor,
the hitter cannot iifterwardx recover upon the policif ; althoiiifh
thr dihfnr died Inxolrent, and executory were /nrninhed i"ith
(he tneanx of j>ai/)nent /*// a third parti/. (Hut sit Dalfiji v.
India .j- London Life Insurance Co., net out, infra, />. li'.'T,
contra.)

'I'liis was ail action of (k'l)t on a policy of insiirance niade
the 29tli of Nov. ISO:?, nn«lcr seal of the dcfcnd.ints, as three
of the (liivctors of the I'elicun Life Insurance Companion
hehalf of the eompany; whieii reeited that the plaintiffs, coach-
makers in Lonj]^ Aere, being interested in the life of the l{i<_dit
lion. William Pitt, and desirous of makini,'an insurance thereon
for seven years, had suljserihed and deliveied into the oHiee of
the company the usual declaration setting forth his liealth and
age, &c., and having paid the premium of IT)/, lox. as a considera-
tion for the assurance of 500/. for one year from tlie 28t]i of Nov.
1808, it was agreed that in case Mr. Pitt should hai)pen to die at
anv time within one year, &:c., the funds of the company should
be liable to pai/ a)id wake i/ood to the plaintiffs, their executors,
&c., within three months after his demise should have l)een duly
certified to the trustees, &c., the sum of 500/. And further
that that policy might be continued in force from year to year

1.580

GODSALL V. BOLDERO.

1531

until the expiration of the term of seven years, provided the
annual premium should be duly paid on or before the 28th
of Nov. in each year. The plaintiffs then averred, that at the
time of making the said assurance, and from thence until the
death of Mr. Pitt, they were interested in his life to the amount
of the sum insured ; and that they duly paid the annual pre-
mium of lol. 15s. before the 28th of Nov. 1804, and the further
sum of 15?. 15.S-. before the 28th of Nov. 1805; and that after
that day, and while the assurance ivas in force, and before exhib-
iting the bill of the plaintiffs, viz., on the 23rd of Jan. 1806, Mr.
Pitt died ; that his demise was afterwards duly certified to the
trustees, &c. ; since when more than three months have elapsed
before the commencement of this suit, &c. ; but that the 500?.
has not been paid or made good to the plaintiffs. There were
also counts for so much money had and received by the defend-
ants to the plaintiff's use, and upon an account stated. To
this the defendant pleaded, 1st, nil debent. 2ndly, that the
plaintiffs, at the time of making the assurance, and from thence
until the death of Mr. Pitt, were not interested in his life in
manner and form as they have complained, &c. 3rdly. As to
the first count, that the interest of the plaintiffs in the policy,
and thereby intended to be covered, was a certain debt of 500?.
at the time of making the policy due from Mr. Pitt to the
plaintiffs, and no other ; and that the said debt afterwards, and
after the death of Mr. Pitt, and before the exhibiting of the plain-
tiff's bill, to wit, on the 6th of March, 1806, was fulhj paid to
the plaintiffs by the Earl of Chatham and the Lord Bishop of
Lincoln, executors of the will of Mr. Pitt. Issues were taken
on the first two pleas : and as to the last, the plaintiffs, pro-
testing that their interest in the policy thereby intended to be
covered was not the said debt mentioned in that plea to be due
to them from Mr. Pitt, and no other, rephed, that the said debt
was not afterwards, and after the death of :\Ir. Pitt, and before
the exhibiting of their bill, fully paid to them by the Earl of
Chatham and Lord Bishop of Lincoln, executors of Mr. Pitt, in
manner and form as alleged, &c.: on which also issue was

joined.

The defendants paid 31?. («) into court upon the first count ;

(a) There was some discussion in in respect of tlie premiums received ;
the course of the artjument as to the the grounds of computing which did
sufficiency of the sura paid into court, not distinctly appear. The defend-

^,'):',-2 coDSAi.i. V. u<>i,i)Ki:o.

;iii(l oil the lliill nl' the rilUSf iK'foiu Lord Ellenf>oroui/h, ('. .1..
at (iiiildlmll, it Wiis ji«rit'tMl that a veiditt shouhl Ik- i-iitt'ivd on
tlif suveial issues, aci'ordin^ to tlie dirt'ttion of (h«- • ..mi. ..n
the followiuj^ ease reserved.

The poliey ineiiticiiied in the deehiration was duly uxuL-uitd,
an<l the premiums thereon were rejjuhirlv paid. .Mr. I'itt.
mentione<l in the poliey, dird on tin- -^Jrd (»t" January, iHOrt;
whicli I' vent was duly certilird in I*VI»ruary, ISOtl, to thr trus-
tees (»t" the I'eliean Lite Insuraiue ('omi»any. 'I'he defendants,
before Trinity Term last, were si-rved with process issued in
this cause on the ord of .luiif, 1800. Mr. I'itt was indchted to
the })laintitTs at the time of the execution of thi' policy, and
from thence up to and at th«' time of his death, alH)Ve TjUO/.,
and died insolvent. < )n tiie »»th of March, 1M0»>, the exeeutoi-s
of Mi. I'itt paid to the [)laintilYs, out of the money fjranted liy
I'aili.iment for the payment of Mr. I'itt's del)ts, 1,101»/. lU. «'»./.,
as in full for the delit due to them from Mr. I'itt. 'I'he case
was aii^MU'd in the last term I)y

f)'Hiipirr, for tlu- plaintitTs. who contended that tlu-y were
entitled to recover upon this policy notwithstandin*^ the piu-
nieiit of the tleht to them hy .Mi. I'itt's executors out of the
money ^nanteil l>y Parliament for that purpose. It is clear
that a creditor has an insurable interest in the life of his debtor,
and the amount of the debt is the measure <»f that interest;
aijd so far the existence and lej^ality of the debt(f/) is neces-
sary to the validity of the insurance in point of interest under
the stat. 14 Geo. 3, c. 48 : but it is not the tirhf (pia deht, which
is insured, but the life of the debtor: it is only nece.s.sary that
the interest should exist at the time of the instirance made,
ami continue up to the time of the death of the debtor, as it
did in this case: and the sum insured having then l)eeonie due,
and the debtor's estate insolvent, the fact of payment of tlie
debt afterwards by the third party cannot be material ; such
payment being gratuitous. The validity of the insurance
dc})ends upon its agreement with the stat. 14 Geo. 3, c. 48,
which was made to prevent " insurances on lives or other

ants' counsel, however, denied the (n) Dinjer v. Edie, London sittinsrs

necessity of paying anything into after Ilil. 1788. Park on Insnr. sth

court, the risk having once com- ed. 914; and 2 Marsh, on Insur. 3rd

menced; and ultimately no opinion ed. 779.
was given by the court on this point.

GODSALL V. BOLDERO. 1533

events wherein the assured shall have no interest;" and for
this purpose it enacts (s. 1) " that no insurance shall be made
by any persons on the life of any person, &c., wherein the per-
sons for whose use, benefit, or on whose account such policy
shall be made, shall have no interest, or by way of gaming or
wagering ; " and it avoids every assurance made contrary to
the true intent and meaning thereof. The 2nd section pro-
hibits the making any policy on the life of any person without
inserting in it the person's name interested therein. And the
3rd section provides that in all cases where the insured hath
interest in such life, &c., no greater sum shall be recovered
from the insurers than the amount or value of the interest of
the insured in such life, &c. Now here it cannot be disputed
but that all the requisites of the act have been complied with.
The only question which can be made is upon the third section,
as to the necessity of the interest continuing beyond the time
of the event happening on which the insurance is stipulated to
be paid, and to the commencement of the action. But the
interest need only continue up to the happening of the event
insured, when the cause of action arises ; and that is the usual
averment in actions of this sort : and the defendants by their
third plea admit that it continued beyond that time ; for they
allege that the debt was paid after Mr. Pitt's death, though
before the action commenced. But if it had been necessary
that the interest should endure up to the time of the action
brought, that should have been averred : which has not been
usual ; and for want of which the judgments in former cases
might have been arrested. The hazard was run for which the
premium was received, during Mr. Pitt's life ; and as he died
insolvent, there was then as it were a total loss : then the
underwriters' liability cannot be adeemed by the voluntary
payment of a third party, though through the hands of the
debtor's executors. The very payment of the premium gave
the plaintiffs an interest in the policy : and it could not liave
been in the contemplation of the Legislature, when they granted
the money for the payment of Mr. Pitt's debts, to adeem the
risk of underwriters. In the case of insurances against lire,
it never was conceived that the insurers could avail themselves
pro tanto of charitable donations collected for tlie benefit of the
sufferers. In the case of a life insurance, the premium is not
calculated upon the risk of the insolvency of the person whose

1534 (iODSALI. V. ItnLDKKu.

life is insured, but solely on the probability of the duration of
tlie life. But, if the defendant's objection Ije well founded,
every case of this sort will be resolved into an examination of
the assets: of whicii the insurers will avail themselves pro
tanto^ after havinj^ had the i)enelit of the whole premium; and
tliis too, at any distance of time when assets may be forthcom-
\\\\f after till- pavmcMt of the loss. IJiit, secondly, by the pay-
ment of money into court the defendants admit a continuani'u
of the plaintiff's interest in the policy beyond the amount of
the bare debt; for it was paid in after the liijuidation of the
(h'l)t, and after the action connnenced. And tiierefore the
plaintiffs would be entitled to recover somethinj^^. Ami it does
not appear how the premiums received have U'en rednced to
the anioiiiit piiid into ((nut.

3Iarri/(if, i-ontru, siud that he shonld not now (h>pule the jirop-
osition, that a creditor mit^ht insure the life of his dibior
since the statute ; tii(HiL;h it mii^ht have l)ecn (l(iid)tc(i, at tirst,
wlicther such an interest as that in the life of another were
within the contemplation of the LcL;i>latMre. 'I'here was an
inception of the ri>k on the policy; and therefore the premium
was j)roperly paid ; and lu) <juesti(*n can arise on the amount of
it; this being an insurance on a precise sum, like a valued sea
policy. The only (piestiou is, Wiiether, in the event, the plain-
tiffs have been danuiilied, and can call upon the assurers for
any indemnilication. To pursue the metaphor, the shi[) insured
has been wrecked, but there has been a salvage, which the un-
derwriters were entitled to, and out of which the assured have
been indcnuulied ; lu^twithslanding which, they still claim as
for a total loss, contrary to tJie very nature of the insurance,
whicli is only a contract of indenuiity. Adiniiting that the
general form of the declaration in these eases may have been
such as is stated, still it is competent for the underwriters to
show that a salvage has been received b}- the assured to the
whole extent of their loss ; and in no case can an a.ssured re-
cover double satisfaction, whether from the same or any other
person ; as in the case of a double insurance : and therefore it
is immaterial in this case from what hand the first satisfaction
came. This principle was fully admitted in the case of Binf v.
.Randall (rt), where it was applied to a case much stronger than
the present. For there a servant having entered into articles

(a) 3 Burr. 1345; 1 Blac. 373, 387.

GODSALL V. BOLDERO. 1535

to serve his master for a certain time under a penalty, and the
servant having left his service before the time by the procure-
ment of the defendant, this court, in an action by the master to
recover damages against the seducer, held that the master's
having before sued the servant, and recovered the penalty
against him before the action brought against the seducer
(though in fact the penalty recovered was not received till
after the second action commenced, but before trial), was a bar
to such further remedy ; considering the amount of the penalty
as ample compensation for the injury received; and that no
further satisfaction could be received from any other quarter.
— (Lord UUenborough, C. J. I never could entirely comprehend
the ground on which that case proceeded. It was assumed
that the sum taken as the penalty from the servant was the
extreme limit of the injury sustained by the master ; but there
is the doubt, for the penalty might have been so limited, be-
cause of the inability of the servant to undertake to pay more ;
and yet it might have been very far from an adequate compen-
sation to the master for the injury done to him by another who
seduced his servant from him. I remember, however, a similar
case tried at the sittings in the Court of Common Pleas, before
Mr. Justice Wilson, sitting for the Chief Justice, who ruled the
same point upon the dry authority of the former decision : but,
as it seemed to me at the time, with considerable doubt upon
his mind as to the propriety of it. — Laivrence, J. I suppose
the court proceeded upon the ground that the penalty was,
by the express stipulation of the parties, made an equivalent
for the loss of the service. — Lord Ellenhorough. That is so as
between the parties themselves ; but it may admit of doubt,
whether that were the fair way of considering it as against a
stranger, a wrong-doer.) A voluntary payment of another's
debt, if accepted as such, will protect the debtor : and if so, it
will equally protect an insurer under the statute. For the ob-
ject of that was to prevent wager policies ; but if this policy
may be enforced, notwithstanding payment of the debt, every
creditor may gamble upon the life of his debtor by way of in-
surance, though without any reason to doubt of his solvency ;
and upon his death he would be entitled to double satisfaction
of his debt. If a payment out of the debtor's assets would have
been a bar to this action, it cannot enter into the merits of the
case to inquire by whose assistance the executors have been

lo:3ti GODSALL V. IJ( )Ll>i:i:<).

enabled to make the payment. The money was paid hy them,
and n'ceived by the [)laintiffs, as for the <leht of Mr. Pitt. Then,
'Jndly, the payment of money into court on thtr first eount only
admits the eontract dcelari'il on. It admits that the phiinliffs
had an interest in the policy up to the death of Mr. I'itt, but
not at the time of the action brouj^ht: and where a demand is
illegal on the face of it, payment of money into court does not
admit it («)• (^t was afterwards stated by the court, and
agreed on all hands, that the payment of money into court on
the lirst count only admitted tha facts stated in that count.)

Dumpier, in reply, on tiie principal (piestion, said that the
facts of the case showed that this was not a wagering policy ;
but that the plaintiffs had an interest in it up to the extent of
the sum insured. And he denied that the snbse(pU'nt payment
of the debt out of the grant of parliament was like the case of
salvage on a marine policy ; for that w;us an advantage calcu-
lated uj)on liy the underwriters in fixing the amount of the
premium; but here the solvency of the debtor formed no basis
of the calculation, but only the probable duration of his life.
In Bird V. Randall (besides the doubt of the soundness of that
decision), the penalty was considered as licpiidated daniages to
the full extent of the injury : and the judgment recovered was
considered as a satisfaction in law. If, in this case, the plain-
tiffs, after recovering judgment against the underwriters, had
attempted to sue Mr. Pitt's executors, the cases would have
been more alike. This stands as the case of a i/ratnlfouK pay-
ment by third persons of the (lel)t of another, and not as the
satisfaction of a legal demand, nor U[)on a stipulation to receive
it as satisfaction of the present claim. It is most like the case
of a charitable donation to sufferers by fire who were partially
insured.

Curia adv. vult.

Lord EUenhorough, C. J., now delivered the judgment of the
court.

This was an action of debt on a policy of insurance on the
life of the late Mr. Pitt, effected by the plaintiffs, who were
creditors of Mr. Pitt for the sum of 500Z. The defendants
were directors of the Pelican Life Insurance Compan^s with
whom that insurance was effected. (His lordship, after stating

(a) Coz V. Pan-y, 1 T. R. 40+ : and Hibbans v. CriclcHt, I B. & P. 2G4.

GODSALL V. BOLDERO. 1537

the pleadings and the case, proceeded — ) This assurance, as
every other to which the law gives effect (with the exceptions
only which are contained in the 2nd and 3rd sections of the
stat. 19 Geo. 2, c. 27), is in its nature a contract of indemnity,
as distinguished from a contract by way of gaming or wagering.
The interest which the plaintiffs had in the life of Mr. Pitt was
that of creditors ; a description of interest which had been held
in several late cases to be an insurable one, and not within the
prohibition of the stat. 14 Geo. 3, c. 48, s. 1. That interest de-
pended upon the life of Mr. Pitt, in respect of the means, and
of the probability of payment which the continuance of his life
afforded to such creditors, and the probability of loss which re-
sulted from his death. The event against which the indemnity
was sought by this assurance, was substantially the expected
consequence of his death as affecting the interest of these indi-
viduals assured in the loss of their debt. The action is, in
point of law, founded upon a supposed damnification of the
plaintiffs, occasioned by his death, existing and continuing to
exist at the time of the action brought : and being so founded,
it follows, of course, that if, before the action was brought, the
damage, which was at first supposed likely to result to the
creditors from the death of Mr. Pitt, were wholly obviated and
prevented by the payment of his debt to them, the foundation
of any action on their part, on the ground of such insurance,
fails. And it is no objection to this answer, that the fund out
of which their debt was paid did not (as was the case in the
present instance) originally belong to the executors, as a part
of the assets of the deceased ; for though it were derived to
them aliunde, the debt of the testator w\as equally satisfied by
them thereout; and the damnifications of the creditors, in re-
spect of which their action upon the assurance contract is alone
maintainable, was fully obviated before their action was brought.
This is agreeably to the doctrine of Lord Mansfield in Hamilton
V. Mendes, 2 Burr. 1210 (a). The words of Lord Mansfield are,
"The plaintiff's demand is for an indemnity : his action then
must be found upon the nature of the damnification, as it really
is at the time the action is brought. It is repugnant, upon a
contract for indemnity, to recover as for a total loss, when the
event had decided that the damnification in truth is an average,
or perhaps no loss at all." " Whatever undoes the damnifica-

(a) A case of Marine Iiisiirance.

ir>.'}8 l)Al.l:V V. INDIA AM) l.<»Nl)(iN lAl'V. ASSI' I: ANCK CO.

tioii ill tliii whole, or in piut, iiuist openite upon the iiulemiiity
in tliL' s;iine dt'^ifu. 1 1 is a conliiuliction in terms, t'j hrin^' un
iietion for indeinniti/^ where, upon the whole event, no damaye
has been sustained."

Upon this j^'round, therefore, tliat the ]>laintifYs had in this
ease no sulwistinj^ cause of aetion in pt)int of law, in respect
of tlicir contract, rci^Mrding it as a contract of im/tniniti/, at
the linu! of the action hroui,dit, we are of opinion that a vcr-
di(.'t must he entered for the defendant on the lirst and tliird
])leas, notwithstandint,' the tindiiiLT '" favour of the plainlitls
on the second plea.

(Aftci" having In'en treated as law, not only in this coi'.ntrv,
hut in the United States, for a great nunUter of years, during
whicli it w^is freipiently referred to hy Judges of eminenee
without disapprobation, the ease «»f Godxall v. linhiero has
been overruled by the unanimous decision of six Judges sit-
ting in the Exchequer Chamber, in the case of

Dalisv v. Till; India and L(»nd<»n Likk Assurance
Company.

[nr.i'oitiKi) i."> C-. n. 3G5.]

The Judgment was dclivcrc<l December 2nd, [1854,] by
Baron Parke, and the facts of the ciuse, as well as the reasons
upon which the decision proceeded, are fully stated. " This
case," said his lordship, "now comes Iwfore us on a bill oi ex-
ceptions to the riding of my l>iother CreifHiveU at Nisi I'lins.
We learn that on the trial he reserved the important point
which arose in it for the consideration of the Court of Com-
mon Pleas; that when it came on for discussion it was thought
right to put it on the record in the shape of a bill of exce{>
tions, that it may be carried, if it should be thought pioper,
to the highest tribunal, and we have now, after a very able
argument on both sides to dispose of it in this court of error.
It is an action on what is usually termed a policy of life assur-
ance, brought by the plaintiff, as a trustee for the Anchor
Assurance Company, upon a policy for 1000/. on the life of
his late Ro3-al Highness the Duke of Cambridge. The Anchor
Life Assurance Company had insured the duke's life in four
separate policies — two for 1000/. and two for 500/. each —

DALBY V. INDIA AND LONDON LIFE ASSURANCE CO. 1539

granted by that company to a Mr. Wright. In consequence
of a resolution of their directors, they determined to limit their
insurances to 2000^. on one life ; and this insurance exceeding
it, they effected a policy with the defendants for lOOOL by way
of counter-insurance. At the time the policy was subscribed
by the defendants, the Anchor Company had unquestionably
an insurable interest to the full amount. Afterwards an ar-
rangement was made between the office and Mr. Wright, for
the former to grant an annuity to Mr. Wright and his wife,
in consideration of a sum of money, and of the delivering up
the four policies to be cancelled, which was done ; but one of
the directors kept the present policy on foot by the payment
of the premiums till the duke's death. It may be conceded
for the pui-pose of the present argument, that these transac-
tions between Mr. Wright and the office totally put an end
to that interest which the Anchor Company had when the
policy was effected, and in respect of which it was effected,
and that at the time of the duke's death, and up to the com-
mencement of the suit, the plaintiff had no interest whatever.
This raises the very important question, whether, under these
circumstances, the assurance was void, and nothing could be
recovered thereon. If the Court had thought some interest
at the time of the duke's death was necessary to make the
policy valid, the facts attending the keeping up of the policy
would have undergone further discussion. There is the usual
averment in the declaration, that at the time of the making of
the policy, and thence until the death of the duke, the Anchor
Assurance Company w\as interested in the life of the duke ; and
a plea that they were not interested ' modo et forma,' which
traverse makes it unnecessary to prove more than the interest
at the time of making the policy, if that interest was suffi-
cient to make it valid in point of law. {Lush v. Russell.,
5 Exch. 203.) We are all of opinion that it was sufficient,
and but for the case of Grodsall v. Boldero, 9 East, 72, should
have felt no doubt upon the question. The contract com-
monlif called ''life assurance^'' when jyroperly considered., is a
mere contract to pay a certain sum of money on the death
of a person., in consideration of the due payment of a certain
annuity for his life., the amount of the annuity being calculated
in the first instance according to the probable duration of the
life ; atid tvhen once fixed it is constant and invariable. The

1540 DALBV V. IN1»1A AND L(»Nl>itN Lll i: ASSlKANt K (<».

8ti[)ul;itt'<I amount of annuity is to Ix; uniformly puid on ono
side, and the- sum to Wc paid in tliu event ofdeath is iilwiiys (./x-
cept when bonuses have heen {,Mven by [nosjierous ollices) the
same on the other. Tfilx Hperiett of insuranre in no ivaif retnemhlea
a contract of hulcmnity. Policies of assuranee ai,'ainst fire and
aj^ainst marine risks are both pro[)erly e«>ntraets of indemnity,
the insurer engaging to make go<»d, within certain limited
amounts, the losses sustained by the insured in their buildings,
siiips, and effects. Policies on maritime risks were afterwanls
used impi-operly, and made mere wagers on the happening of
thosi' perils. This prai-tice was limited by the ll> ( i. li, c. :',7,
and put an end to in all except a few eases; l)ut at conuuon
law, Ix-'fore this statute with respect to maritime risks, and the
14 CJ. 3, c. 48, lus to insurances on lives, it is perfectly clear that
all contracts for wager i)olicies ami wagers which were not
contrary to the i)olicy of the law were legal contracts; and so
it is stated by the court in i'ouxinx v. Xnntcx (3 Taunt. 31.')), to
have been solenudy determined in the case of Lucena v. Vrau-
fimJ (2 P.os. i^ I*. 3-J4, '1 X. \{. 'liW^), without even a difference
of o[)inion among all the judges. To the like effect was the
decision of the court of error in Ireland, l)efore all the judges
except three, in The British Inxuntfur Co. v. Matfcc (1 Cooke A:
Ale. iSii), that the assurance was legal at common law. Their
contract, therefore, in this case to pa}- a tixcd sum of lOOO/. on
the death of the late Duke of C'andiridgc wtiuld have bei-n un-
questionably legal at common law, if the plaintitY had had an
interest thereon or not; and the sole «iuestion is, whether this
policy was rendered illegal and void by the provisions of the
stat. 14 G. 3, e. 48. This depends upon its true constructit)n.
The statute recites that the making insurances on lives and
other events, wherein the insured shall have no interest, hath
introduced a mischievous kind of gaming, and for the remedy
thereof it enacts '* that no insurance shal/ /»• mmle by any one
on the life or lives of any person or persons, or on any other
events whatsoever, wherein the person or persons for whose use
and benetit or on whose account such policy shall be made itJiall
have no interest, or by way of gaming and wagering ; and that
every assurance made contrary to the true intent and meaning
thereof, shall be null and void, to all intents and purposes
whatsoever." As the Anchor Assurance Company had unques-
tionablv an interest in the continuance of the life of the Duke

DALBY V. INDIA AND LONDON LIFE ASSURANCE CO. 1541

of Cambridge, and that to the amount of 1000/., because they
had bound themselves to pa}^ a sum of 1000/. to Mr. Wright on
that event, the policy effected by them with the defendants
was certainly legal and valid, and the plaintiff, without the
slightest doubt, could have recovered the full amount if there
were no other provision in the act. The contract is good at
common law, and certainly not avoided by the 1st section of
the 14 G. 3, c. 48. This section, it is to be observed, does not
provide for any particular amount of interest. According to
it, if there was any interest, however small, the policy would
not be avoided. The question arises on the 3rd clause ; it is as
follows : — " And be it further enacted, that in all cases where
the insured hath interest in such life or lives, event or events,
no greater sum shall be recovered or received from the insurer
or insurers than the amount or value of the interest of the
assured in such life or lives, or other event or events." Now,
what is the meaning of this provision? On the part of the
plaintiff it is said it means only that in all cases in which the
party insuring has an interest when he effects the policy, his
right to recover and receive is to be limited to that amount ;
otherwise, under colour of a small interest, a wagering policy
might be made to a large amount, as it might if the 1st clause
stood alone. The right to recover, therefore, is limited to the
amount of the interest at the time of effecting the policy ; upon
that value the assured must have the amount of premium cal-
culated ; if he states it truly, no difficulty can occur ; he pays,
in the annuity for life, the fair value of the sum payable at
death. If he misrepresents by overrating the value of the in-
terests, it is his own fault in paying more in the way of annuity
than he ought, and he can recover only the true value of the
interest in respect of which he effected the policy, but that
value he can recover. Thus the liability of the assurer be-
comes constant and uniform, to pay an unvarying sum on the
death of the cestui que vie, in consideration of an unvarying and
uniform premium paid by the assured. The bargain is fixed as
to amount on both sides. This construction is effected by read-
ing the word ' hath ' as referring to the time of effecting the
policy. By the 1st section the assured is prohibited from effect-
ing an insurance on a life, or on an event wherein he ' shall
have ' no interest — that is, at the time of assuring ; and then
the 3rd section requires that he shall recover only the interest

l'>42 DALBY V. INDIA AND LONDON LIIK ASSUl:AN<E CO.

tliat lit' 'liiilh'; if lir li is ;iii interest when the policy is nisidt,
he is not \v.i:;ii int; or f,Mniiii^', iind the prohihition of the statnto
(loos not apply to his ease. Had the 'hd section proviiled that
no Miore tiian the amount or value of the interest should Im- in-
sured, a (piestion niii^ht have l)een raisetl, whether, if the insur-
ance had heen for a larfjcr amount, the whole would not have
been void; but the prohibition to recover or receive more than
that amount obviates any dillicnlty on that head. On the other
hantl, the defendants contend that the meaninj^ of this clau.se
is. that the assured shall recover no more than tiie value of the
interest which he has at tlie time of the recovery, or receive
more than its value at the time of the receipt. The words must
be altered materially to limit the sum to l)e recovered to the
value '// the time of the death, or if payable at a time after death,
when tlic cause of action accrues. Hut there is the most
serious objection to any of these constructions. It is, that the
written contract, which, for the reasons jjiveii Ufore, is not a
wafjerin^ contra(;t, but a valid one, permitted by tlie statute,
and very clear in its langua<^e, is by this moih^ of i-onstruction
completely altered in its terms and elYei t. It is no lonj,a'r a
contract to pay a certain sum as the value of a then existing
interest in the event of death, in consideration of a fixed annu-
ity, calculated with reference to that sum, but a contract to pay,
contrary to its express words, a varying sum, according to tli ■
alteration of the value of that interest at the time of the death
or the accrual of the cause of action, or tin- time* of the verdict
or execution, and yet the price or the [»remiuni to Ih- paid is
fixed, calculated on the original fixed value, and is unvarying,
so that the assured is obliged to pay a certain [jremium every
year, calculated on the value of his interest at the time of the
policy, in order to have a right to recover an uncertain sum,
namely, that which ha[)pens to be the value of the interest at
the time of the death or afterwards, or at the time of the ver-
dict. He has not, therefore, a sum certain, which he stipulated
for and bought with a certain annuity ; but it may be a much
less sum, or even none at all. This seems to us so contrary to
justice and fair dealing and common honesty, that this con-
struction cannot, we think, be put upon the section. We
should therefore have no hesitation, if the question were res
Integra, in putting the much more reasonable construction on
the statute, that if there is an interest at the time of the policy

DALBY V. INDIA AND LONDON LIFE ASSURANCE CO. 1543

it is not a wagering policy, and that the trne value of that in-
terest may be recovered, in exact conformity with the words of
the contract itself. The only effect of the statute is to make
the assured A'alue his interest at its true amount when he
makes the contract. But it is said that the case of Gochall v.
Boldero, 9 East, 72, has concluded the question. Upon consid-
ering this case, it is certain that Lord Ellenhorough decided it
upon the assumption that a life policy was in its nature a con-
tract of indemnity, as policies on marine risks and against fire
undoubtedly are;, and that the action was, in point of law,
founded on the supposed damnification occasioned by the death
of the debtor existing at the time of the action brought, and his
lordship relied upon the decision of Lord Mansfield in Hamilton
V. Mendes (2 Burr. 1270), that the plaintiff's demand was for
an indemnity only. Lord Mansfield was speaking of a policy
against marine risks, which is in its terms a contract for in-
demnity only. But that is not the nature of what is termed an
assurance for life ; it really is what it is on the face of it — a
contract to pay a certain sum in the event of death ; it is valid
at common law, and, if it is made by a person having an inter-
est in the duration of the life, is not prohibited by the stat. 14 G.
3, c. 48. But though we are quite satisfied that the case of
G-odsall V. Boldero was founded on a mistaken analogy, and
wrong, we should hesitate to overrule it, though sitting in a
court of error, if it had been constantly approved and followed,
and not questioned, though many opportunities had been of-
fered to question it. It was stated that it had not been dis-
puted in practice, and had been cited by several eminent
judges as established law. The judgment itself was not and
could not be questioned in a court of error, for one of the
issues, nil debet., was found for the defendant. Since that case
we know practically — and that circumstance is mentioned by
some of the judges in the cases hereafter referred to — that the
insurance offices, generally speaking, have not availed them-
selves of the decision, as they found it very injurious to their
interests to do so ; they have, therefore, generall}^ speaking,
paid the amount of their life insurances, so that the number of
cases in which it could be questioned is probably very small
indeed ; and it may be truly said, that instead of the decision
in Godsall v. Boldero being uniformly acquiesced in and acted
upon, it has been uniformly disregarded. Then as to the cases,

l')44 DAI.HV V. INDIA \N!' I mM..i\ MKK ASSI'KAN' I" <".

there is no oiise at law except that of liarfif'r v. M>iniM (1 Moo.
& li. 02), ill wliich the cixse of GoJsall v. BoiUrn waa inci-
dentally Jioticed as proving it to l)e necessary that the interest
slionld continue till the deatli of the cestui que vie. It was
j)roved in that case to he tlje practice of the j)articular ollice in
which that assurance was made, to pay the sums assured with-
out iiKiuiry as in the existenee of an insurahle interest; and on
that account it was held that the policy, thougii in that disc
the interest had ceased, was a valual)lc policy, and the plaintiff
could not recover on the ground that the defendant, the vendor
of it, was guilty of fraudulent concealment in not ilisclosing
that the interest had ceased. This was the [)oint of the case ;
and though there was a dictum of Lord Tcntenlen that the pay-
ment of the sum insured could not he enforced, it was not at
all necessary to the decision of the ease. The other cases cited
on the argument in this case were cases in equity, where the
propriety of the decision of Goihall v. liohlero did not come in
question. 'I'lu^ (jucstions arose as to the right of the creditor
and dchtor inter xe^ where the olVices have paid the value of a
policy, in Humphreii v. Arahin, 2 Lloy«l Jt Goold, ^^^X : I[ennon
V. Bhtrhwell 4 Hare, 4:U, ccr. Sir J. \vigram, V. ('.; Phi/lips
V. Eastivooil, 1 Lloyd and (Joold ((';is. temp. Sugd.), 281 — -
where the point decided was, that a life policy, as a security for
a deht, passed under a will becpieathing dehta, the Lord Chan-
cellor stating that the offices found it not for their benefit to
act on the rigid rule of Godxall v. Bolih-m. \\\ these cases the
different judges concerned in them do not dispute, some indeed
appear to ajjprove of, the case of Gmisall v. Bohlera ; hut it was
not material in any to controvert it, an<l the (piestions to Ix^
decided were quite independent of the authority of that case.
We do not thiid< we ought to feel ourselves boun<l, sitting in a
court of error, by the authority of this case which itself could
not be questioned by writ of error, and as so few, if any, subse-
quent cases have arisen in which the soundness of the princi})le
there relied upon could be made the subject of judicial inquiry ;
and as in practice, it may be said that it has been constantly
disregarded. Judgment reversed, and a venire de 7iovo.^' —
Judfiment accord inr/li/.

It will thus be seen that the point decided in G-odsall v. Bol-
dero has been distinctly overruled (a), and that the continu-

(a) [See also Law v. The Indisputable Life Policy Co., 24 Law J. Chan. 196,
coram Wood, V. C.]

DALBY V. INDIA AND LONDON LIFE ASSURANCE CO. 1545

ance of any portion of the interest required by the statute when
the policy is effected, is no longer necessary; as, however, the
greater part of the following note is unaffected by this decision,
it is preserved with such alterations as the present state of the
law renders necessary.

INSURANCE, whether of ships, or against Are, is a contract of indemnity,
and whenever aa attempt is made to make it answer any other purpose, such
an attempt tends to divert it from its original and legitimate o^Dect whic
renders it the more extraordinary that contracts so plainly wresting it fiom
its proper sphere as interest or no interest policies, should ever have been rec-

"""That^ ^liowever, they were so, is certain; though they were so far dis-
couraged as inconsistent with sound principle, that, unless a Pol^cy was
expressly stated to be made interest or no interest, it was understood that the
insured was interested, and he was, in c«se of loss, boiind to prove _i See
Lucena v. Crawford, 3 B. & P. 101; Scullers^ Co. v. Badcock, 2 Atk. o56 In
Ireland, where [until the passing of the 29 & 30 Vict. c. 42, -PP^J-^f*^ In-
land the provisions of the 14 G. 3, c. 48] there was no [similar] statute n
force, interest or no interest policies on lives were valid, and where the poll y
was silent as to interest or no interest, the Court of Exchequer Chamber held
that the declaration need not contain any distinct averment of interest.
BrUisk Insurance Company v. Magee, 1 Cooke & Alcock-s ^^P^^'t^- ;^:-

However wager policies, as they are called, are now forbidden to be made
on [British] ships, [or on profits on goods or effects laden on bo^-d ^see
SmitU .Reynolds I H. . N 221 ; ^f^-^^^'^^^^^, 1^.^' ^'L
ridge v. Man On Insurance Co., 18 Q. L. D. rf-ib,jj uy lo yy ,
other matters by 14 G. 3, cap. 48, which enacts, " that no ^-^^^f^^
made by any person or persons, bodies politic or corporate, on the life o, lives
7 anvotnl person or persons, or on any other event or events whatsoever
Icn^n the person or persons for whose use, benefit, or on whose accoun
such policies shall be made, shall have no interest, or by way of gaming oi
waoering; and every insurance made contrary to the true intent and meaning
hei^.of shall be null and void to all intents and purposes."

Bv sect. 2, the name of the person interested therein, or for whose use
benefit or on whose account the policy was made, is to be inserted m it.
[The name must be inserted as that of the person interested; andno distinc-
tion is made in this respect by the statute between ordinary policies on lives
and gaming or wagering policies. Hcxlson v. The Observer Assrirance Co., 8
TT ^ R 40 1

By sect.'3, in all cases where the insured had an interest in the life or lives,

event or events, no greater sum shall be ^-^^-^^''^J;' I'^Z'TZZ
insurer or insurers] than the value of that interest at the date of the policy.
[Ilebdon v. West, 3 B. & S. ."9.]

Bv sect 4, marine insurances are exempted from the operation of this lat
ter act; and as the act 19 G. 2, c. 37, which governs them, does not require
the name of the person really interested to be inserted in a -^^^l^ff^
is not necessarv that it should be so [except as provided by -8 Geo. .. c^50,
which enacts that no policy shall be made on any ship or "PO'^;^"^ g°°^^^;
without inserting the name of one or more of the persons mterested, or

lo4tJ (ioDSALL \. 15<>LI>KK().

Jnstcad tlierc;)f of tho coiisi^'iior, ofdislgnoo, or of tin- iMr>*<)ii wlio nnivcd
or <invc tlif order to ellcft tin- iiisiinmcf.]

Tliis act doi's not extt-nd to prevent individuals from etlVitinK lnsuraii<i-.s
iijion thrir oicn liccs, provitled tliat Ik- done li',uu Jul' . But It seems that a
man would not be permitted to evade the statute by proeurinij; one in whose
life he had no leyal interest to insure It with his money and for his iH-netlt,
thoujjfli ostensibly for the advantaire of the party Insurlnu. Wiihtirriijht v.
Jilawl, 1 M. & U(»b. 481; 1 M. & W. .{2. Still it has been held that, w here a
life (tolicy is assiijncd, it is not necessary that the assl^jnee should have any
interest, or even that he should have paid any consideration ; for he stands
upon tlie rights of the party who ellected the insuranii-, and the statute oidy
applies to tlie orif^inal parties to the policies, not to tlifir assii;nees. AnhUy
v. Asfih'i/, ;J Simons, \VJ.

The statute does not apply, as has been seen, merely to life policies, but t.)
policies " on nmj other went or events irhutsoerer." And so sweepiuf; are these
words, that it is perhaps not very easy to say precisely wliat tles«-rlption of
wa^'er, if redu<-ed to writing, niljrht not be invalidated by them. In l:n»huck
V. Ilitmerton, Cowp. 7:57, (which wiu* the first case decided on this statute),
the defendant, in consideration of a certain sum, undertook to pay the plain-
tiff a jrreater smu. in case MouHiiur /-■ ('Uinilur D'Emi shoidti at any time
l)rove to be a femnh-. At the trial the point was reserve«I, wln-ther this
waijer was prohibited by st. 14 (1. 3, cap. 48, and the court held that it was
so. It must be observed, that in this case the wa«er was drawn up in the
form of a policy, and was indorsed as one, and opened to any lunnber of p<-r-
sons whf) pleased t<i subscribe.

In Pritrrsnn v. PoinU, 9 Rinir. 320, the declaration was upon tlie followinj;
instrument : —

In consitleration of forty truineas for 100/., and ai-cordinir to that rate, for
every greater or less sum received of , we, whose names are hereunto

sui)scribed, ilo, for ourselves severally, an<l our several and respective heirs,
executors, administrators, and assigns, :uul not one for tlie otln-r or others
of us, or for tlie heirs, executors, &c., of the otlier or others of us. assume
and promise, tliat we respectively, or our respective heirs, executors, &c.,
shall pay or cause to be paid to the said , the sum or sums of

money which we have hereunto respectively siil)scril)ed, without any abate-
ment whatever; in case the Imperial Brazilian Mining shares be done at or
above 100/. per share on or before the ^\st day of I)ecend)er, 1»2».
100/. James Powell, Due hundred pounds,

2!)th April. 1829.
100/. Henry Hodges, do.

100/. A. P. Johnson do."

The court held this instrument void, as a policy prohibited by the statute.
The Lord Chief Justice remarked, "that it had been contended that the
words of the act were confined to cases where there was a snlijcct-iudtter of
insurance exposed to peril ; but that that argument was inconsistent with the
words amj event or events irhatsoever:" and his lordship cited, on that subject,
the case of Mollisnn v. Staples, Park on Ins., 8th ed. OOit, where a policy on
the event of there being an open trade between Great Britain and Maryland
on or before July G, 1778, was held void by Lord Mansfield. " Our decision,"
continued his lordship, " therefore, must turn upon tho provisions of the 14
G. 8. if this instrument ran ho denned a pnlinj. Upon that point we entertain
no doubt. Here is a premium paid, in consideration of the insurers incurring

DALBY V. INDIA AND LONDON LIFE ASSURANCE CO. 1547

the risk of paying a larger sum upon a given contingency. Tlae instrument
is open to all who may choose to subscribe, that is, without restriction of
persons or numbers. It tlien proceeds, in the usual language of policies of
insurance — •• We respectively will pay, or cause to be paid, to the

sum and sums of money wliich we have hereunto respectively subscribed,
without any abatement whatever, in case,' &c. If the instrument in Roebuck
V. Hamerton Avas rightly held to be a policy, I can make no just discrimina-
tion between that Instrument and the present. It is true, that the policy con-
tains no clause about average, because the circumstances of the risk do not
require it. But, if the instrument can be deemed a policy without that
clause, we shovild impair the efficacy of the act of parliament, if we were to
consider it as an ordinary contract. I cannot consider it as other than a
policy, and, if so, the plaintifl''s claim must receive tlie same answer as was
given by Lord Mansfield in Roebuck v. Hamerton ; first, that this is an insur-
ance on an event in which the party had no interest : or, if he had, the policy
does not disclose the name of any party interested."

[A contract by which an expected devise from a third person is assigned,
in consideration of an advance of money to be repaid if the devise does not
take place, does not amount to a wagering policy within the statute. See
Cook V. Field, 15 Q. B. 460.]

On the other hand, it is too late to contend that there might not be many
legal wagers, [altliough, as will be seen hereafter, the stat. 8 & 9 Vict. c. 109,
s. 18, renders them, with certain exceptions, incapable of being enfoi-ced].
And there are instances in which the courts have refused to apply to such
the provisions of the statute in question; thus, in Good v. Elliott, 3 T. R.
693, the action was upon a wager between the plaintiff and defendant,
whether Susannah Tye had bought a certain waggon from David Coleman.
The declaration stated the nature of the transaction; and, after verdict for
the plaintiff, a rule nisi was obtained to arrest jndgment, but was discharged
by the court (dissentiente BuUer, J.) after an elaborate discussion of the entire
subject. The majority of the judges relied upon several decided cases, as
proving that all wagers were not necessarily void at common law, but only
those which, by injuring a third person, disturb the peace of society, or
which militate against the morality or sound policy of the kingdom; and
they remarked, that had the law been otherwise, there would have been no
occasion for passing stat. 14 G. 3, at all. They then proceeded to consider
the question, whether the transaction was invalidated by that statute, and
concluded that it was not.

" The statute," said Mr. J. Grose, "evidently meant that every insurance
on lives, or on any event, in which the assured lias not an interest, shall be
void, xchetlier such insurance be effected in the form of a policy, or by icay of
gaming or icagering. And if the construction contended for by the defendant
be the true one, it leads to this extraordinary proposition, vis., that a statute
which concerns every part of the community, and was passed in 1774, has
never been understood by any one till 1790. To say that every wager is pro-
hibited by this statute, is to say, that every wager is an insurance ; and that
the parliament meant to describe a wager by calling it an insurance; which
I am of opinion was not their intent."

Lord Kenyon, in his judgment, further remarked, that it was apparent that
the legislature had vjritten instruments only in contemplation, by requiring
the names of the parties interested to be inserted therein.

It will be observed, that the majority of the judges in Good v. Elliott, seem

1548 GODSALI. V. IJOLDEUO.

to have consklerotl the disthiction hi-twocn cases withhi, aiul cases not within,
the nieaiiiiij; of the statute, to consist ratlier in the imlure of the ri»k timn ia
tlie form (proviiied it l)e written) of tlie contract. Indeed, tlie construction
put upon tlie act l)y (Jrose, J., is irreconcileal)le with any otlier view, for Ids
lordship, conunentinj; on the statute, says (as is above citetl), •' The statute
meant, that every insurunre on lives, or nn any vnnt. In widch the assured
had not an interest should be void, tr/iflhrr auch insitraiic*- he iffntnl in thr
form of a poluij, or h>j trny of )/<imiiiij or icagerimj ;" numifestly Intending to
express his opinion, that there were two ways of etlectiuK an Insurance, the
one in thr form of a polin/, tlie other hij imy af i/nmiiii/ or irmjirimj — tluit is, i«
the form of u hct ; but that, whichever way was adopteil, the insurance woidd
equally be void, if tlie insured hail no interest in the sniiject-matter of Insur-
ance. And certainly that construction of the a<t appears rational; and there
may be souiethiut? u«)t quite in acconlauce witli couinioii si-nse. in saying that
a statute proliibitinj; a contract can l)e evaded by shapiiiy the contract in t)ne
form rather than another.

Now, if tliat construction of the statute be the true one, and if insurances
be void, thoufjh in the form of iragera not of poUcifs, tlie next question will
be — wfidt WKijfru are, in nature ami in substanvi', inaurancrs, an contradiKtin-
guished from mere hetsf and this ijuestion, too, seems to be answered by Mr.
J. Grose, who, usinj; the very words of the statute says, that it evidently in-
tended insurances upon events. Now an event — that which will ereutually
happen {evenire), .seems to include the uncertain — uncertain, because future
— issue of any transaction whatever. To ;;ive the woril event useil in the act,
that sense, and to construe every wajjer un an event to be a polieij, wmild
have the effect of dividin;; all written iragerit into two clas.ses : — I. \V«:;<'rs
upon questions capable of solution in pra-aenti. — Wafers upon (|uestions in-
capable of solution in pnrnenli. or events. For instance, under the former
class would fall a wager whether a particular horse Is black or white, since
the colour of the horse is an existing fact; under the second class, a wager,
whether the foal a mare now goes with irill be black or white, as that is a
wager upon an event.

And if such really were the distinction between cases comprised and those
not comprised by tlie statute, it would be a very thin one indeed ; for. after
all, if two men lay a bet upon a matter, the truth of which is presently ascer-
tainable, although the thing either is or is not, as is asserted, and therefore
its status cannot, with reference to the general nature of things, be an event,
still, as the bettors are themselves uncertain how the truth will upon exand-
nation be discovered to be, their discovery of the true state of things is an
event, although the thing discovered itself is not. And the distinction would
indeed be a tine one, which should consist in the difference between a wager
on a future thing, and a wager on the future discovery of an existing tiling.

But, without adopting this distinction, it is impossible to escape from the
conclusion, that the application of the act is to those mitten contracts only ichich
are in the form of policies : or, to yo a little further, that, if it do apply to any
other contracts, it at all events applies only to .<tMcA as are ordinarily, and in the
common course of business, made by toay of policy, though the parties may for the
purpose of evading the statute, have framed them in the shape of irajfers. That the
class of cases comprehended within the latter part of the above proposition,
should he witliin the provisions of the act. seems but reasonable. For the
former part of the proposition there is great authority.

And first, there is authority to prove that all wagers, if conceived in the form

■ DALBY V. INDIA AND LONDON LIFE ASSURANCE CO. 1549

of nolicies are within the statute. In Roebuck v. Hamerton, the .vager was

It upon an .l». in the strict sense of that word; but on an existing,

;irunascertamed fact, the sex of the Ckevalier D^Eon. It - J- tha ,

fo othe- sense above suggested, treating the discovery as the eAent, it

poUcv, o'ned as a poUc,' and any number of persons whatever might have
subscribed it as such; therefore, it is clearly within the act

In the case of Paterson v. Powell, cited at the beginning of the note, the
co^t a! wm be seen on reference to the extracts above made from the 3U dg-
Tnt of the Lord Chief Justice, relied particularly upon the form of the

contract, which was that of a policy. ^ ,, ,, jrjuntf that

On the other hand, it is clear, as has been said, from Good v. EUiott, that
it^s not every wag<^ which is an insurance within the meamng of the act.
T r'. 7 V FZ^o« the wager, it is true, was not upon an event ; but we have
sL a Udy h w ihL th: ms'tinction is between a wager on a future circum-
stance and a wager on the future discovery of a present but rn^lou,wn one
In a case however, in the Court of Queen's Bench, it has been held to make
the differ;nce between the legality and illegality of a bet on the result of a
linrsp-race Pudh v. Jenkins, 1 Q. B. 631. .

n the cis^ of Morgan v. Pebrer, 3 Bing. N. C 457, the impression of he
In the ^ase o j ^ .^ ^^^ conceived m the

Z rrpX :.'^"nori^cessarily fall within the statute^ It was a
actTon of asljsu; and the declaration stated that ^^^^^^^^
plaintiffs would, at the defendant's request, purchase \0'000 • o^^^' ^^ ^^
and 30,000^. Spanish Scrip, t^e defendant promised « "f ™"^^^;; ^^i^^Hhe
loss in a particular manner, which he had neglected to do. Pa, that the
irtract was^ for the purchase of public securities, to ^^e d^ ;verec^^^^
fnture dav and was in truth a wager on the price of Spanish secuuties,
Hhich the p aintifts, as brokers for the defendant, agreed with cer tarn
n^^^ tl at if the price of the said securities should be higher on a certain
?: Ui 1 1 1 defenrit should receive the difference; if lower, should pay
h diftlrence. Demurrer, on the argument of which it was ^^ecided in
acco^al with Henderson v. Bise, 1 Stark. 158; Wells y.Pc^^ 2 B.„g^
N C 722 • Oaklev v. Rigby, ibid. 732 ; Elseworth v. Cole, 2 M. & W. 31 , and
P ; ,\ Fallml^ 3 Bincl. N. C. 392, that time-bargains in foreign securities
t : ot ^M y 1 S^ock-Jobbing Act, [the 7 Geo. 2, c. B C-pealed by the
^3 Vi^t c. 28) ; Lid see now, since the 8 & 9 Vict. c. 109, Tkacker v. Bauly,

' U'tS; "h t^:ta^^ principal point, it was also submitted to the cou^
bv Mr Ga e ^^L argued for the defendant, that the contract was a gaming
llZ voicl' by the U G. 3, ^^ ^^^^ ^.^I^^^^T^ ^^^^
C^::i^^^^tr:.:^^^^^^^^ enaciments agahist
"""„! policies on lives; and I cannot see how a simple wager, unob^ -
rn:;;:^upon other grounds, can be said to fall -^!^^^^:^^^^
does not even assume the form of a policy of insumnce. J^ °7;^;[;;"^;
nf thP vest of the court were equally strong, and it was expresslj statea oy
Mr. j! VaugM^ that Lord Kenyon and Mr. J. Grose had both laid it down

1550 (;(U»sAi.L \. I5<>i,i)i:i:().

" that tltc statute did not apply, except in the ca»e ichere the teager atsumed the
xhapc of a pulicij of insurance."

It must, however, be observed on Murtjan v. J'ehrer, that It does not seem
to have been neceimary in tiiat case to decide tlie point, whether a wa^er on a
future event, not conceived in the usual shape of a policy, be within the
nieauiug of the act or not. For it did not sulllciently appear from the n'cord
that the parties were not intertnted in the event. On the contrary, it ratlu-r
appeared that they were so: for. thon;;h tliey were not possessed of the
Spanisli St<ick, still, if a contract to buy foreij^n stock at a future day, or
else pay the diUVreiice between its then and present price, [was] not ilUi^al
as a time-barfjaiu witliin the Stock-.Iobblns; Act, then It is clear that the party
making such a contract [hnd] an Interest in the eventful price, and. If so, the
case [could not] fall within the 14 G. 3.

There is another {ground on which this case may possibly be exempted from
the operatitui of the statute. Lord Kenyon, It will be remembered, seemed
to think that the act only a|>plied to trriltt-n cnntrnits. Now there was no
averment in any part of tin- record in Munjiiii v. I'lfntr. that any part of the
contract there was in irritimj. Wiieliier l.oril Kenyon's ilirtum on that sub-
ject nuiy be hereafter actpiiesced in. is anotiier <|Uestion. Certainly it woidd
be stranjje if a tjaviinij polinj, prohibited from beiiif; made in writing;, coidd
be fjood if made by parol : and the effect of that clau.se In the statute which
directs that the name of the party Interested shall be Inserted, may perhaps
be, not to render a policy ijood if verbal, which would be bad if written, but
to render a writinj; necessary in every case. [It should be observeil tliat
under tlie Stam|) Acts it is necessary that policies should be In wrltln;:, see
3.'} Geo. 3, c. (;:5, now repealed: .'5(i Vict. c. '.'3, s. 7; 33 & 34 Vict. c. '.»". ss.
117, 118.]

Notwitlistaniiini; the stroni; ex|»ressions used l)y the court in Munjan v.
Pebrer, which, accurdinj^ to the well-known rule, must be referretl to the case
then before them, it is extremely ditlicult to suppose, that If, in any of those
transactions on which policies are usual a iraminsf policy were worded like a
common waj»er, it would be held to be thus exempteil from the operation
of tlie 14 G. 3.

To such cases the expressions of Lord Manslleld in l'<ist>r v. 'Jhurkiry,
cited l)y Huller. .L. in (ianil v. lilliolt, [3 T. K. i'>'X\] would forcibly apply.
" What," said his lordship, " is a policy? It is derive«l from a French word
which means a pi-omise. Is a particular form necessary? Must it beirin,
'In the name of God, Amen'? or refer to Lombaril Street? A inercantih'
policy we all know, but a yarning policy is a mere wajjer. If the form were
essential under the act, it may be evaded immediately: for it may be<rin,
' We promise, if war be declared, we will pay,' &c. Apply that to mercantile
affairs : ' We promise, if the ship sails, and does not arrive,' &c." Perhaps
few readers have perused the admirable jnilirment of Mr. J. Duller, in the
case of Good v. Elliott, without feelinjj reirret that his construction of
the act was not adopted, and all idle wafers whatever held to be invalidated
by it. See also the remark of Lord Dennian, C. J., in Fisher v. Waltham,
4 Q. B. 893.

It must indeed be observed that, even as the law now stands, many such
are void as contravening public policy : for instance, between voters as to
the result of an election, Allen v. Hearn, 1 T. R. 56: or whether T. W.
would be transported for forgery, I'Jvnns v. Junes, 5 M. & W. 77. So, in
Fisher v. W^altham, 4 Q. B. 889, where a clerk having betted that he would

DALBY V. INDIA AND LONDON LIFE ASSURANCE CO. 1551

not pass his examination for admission as an attorney, the bet was held void
on the ground that he had the event in his own hands, which it is presumed
the court looked upon as a circumstance inconsistent with there being a con-
sideration for the defendant's promise.

The legislature also has interposed to render wagers, with some few
exceptions, incapable of being enforced by action, though not to make them
absolutely illegal, for the statute 8 & 9 Vict. c. 109, s. 18, enacts, "that all
contracts or agreements, whether by parol or in writing, by way of gaming
or wagering, shall be null and void ; and that no suit shall be brought or
maintahied in any Court of Law or Equity for recovering any sum of money
or valuable thing alleged to be won upon any wager, or which shall have
been deposited in the hands of any person to abide the event on Avhich any
wager shall have been made : provided always, that this enactment shall not
be deemed to apply to any subscription or contribution, or agreement to
subscribe or contribute, for or towards any plate, prize, or sum of money to
be awarded to the winner or winners of any lawful game, sport, pastime, or
exercise." ICnomhes v. Dibble, L. R. 1 Ex. 248; Batson v. Newman, 1 C. P.
D. 573; Dimple v. Hig(j!<, 2 C. P. D. 422; Trimble v. Hill, 5 App. Ca. 342.]

This section does not prevent a person who repudiates a wager before it is
decided from recovering his deposit from a stakeholder. Varney v. Hickman,
5 C. B. 271. [See also Martin v. Hewson, 10 Exch. 737, where to a plea that
the money sought to be recovered in the action had been deposited in the
defendant's hands as a stakeholder, to abide the event of an illegal game on
which the money had been wagered by the plaintiff*, a replication that before
the result of the wager the plaintiff" had repudiated it and required a return
of the money, was held to be good; and see Hampden v. Walsh, 1 Q. B. D.
189, 45 L. J. Q. B. 288, where the repudiation did not take place till the wager
was decided, and the stakeholder was about to pay over the money; and
Batson v. Neumian, 1 C. P. D. 573. Money paid in payment of bets, at defend-
ant's request, may be sued for and recovered, Ex parte Pyke, 8 Ch. D. 754 :
so in Beeston v. Beeston, 1 Ex. D. 13, 45 L. J. Ex. 230, the plaintiff was allowed
to sue upon a cheque given by the defendant for the plaintiff"'s proportion of
money won by bets made on behalf of both by the defendant; and in
Bri(l(jer v. Savage, 15 Q. B. D. 363, 54 L. J. Q. B. 464, the plaintiff was held
entitled to recover from the defendant the amount received by the latter in
payment of bets made by him on commission for the plaintiff'. In Read v.
Anderson, 13 Q. B. D. 779; 53 L. J. Q. B. 532, the plaintiff" was held (Brett,
M. R., dissenting) entitled to recover from the defendant the amount which
he had paid for bets made by him in his own name on behalf of the defend-
ant, but which the defendant had repudiated, and forbidden him to pay after
they were lost. In Thacker v. Hardy, 4 Q. B. D: 685; 48 L. J. Q. B. 289
(followed in Ex parte Rogers, 15 Ch. D. p. 214), it was held, affirming the
judgment of Lindley, L. J., that the plaintiff, a stockbroker, who had been
employed by the defendant to buy and sell stocks on the terms that " differ-
ences " only should be paid between them, no stocks being actually delivered,
was entitled to be indemnified by the defendant against the personal liability
incurred by him in effecting such contracts.]

By sect. 19 [(repealed, except as to inferior courts, by 46 & 47 Vict. c. 49,
ss. 4 and 7)] it is provided that it " shall be lawful," in cases of feigned
issues, for the court to direct them in a form given in the schedule to the
act. Where a feigned issue was made up since the statute in the old form
of a wager, an attempt was made to stay the proceedings upon it, on the

15o2 tJOUSAl.h V. l;nLl)Ki:o,

trroiiiitl that it «llsc|i>N('<l n contruct, In roiitravi>ntlon of tlip Hth Miction.
Tlif court, however, ri'fusi'«l a rulf to show miiHr, >m-Iiij» clearly of opinion
that It was not a wa^cr within the iiieniiliiu of tiie act. Lu'int v. Ihnrhrr, t
('. It. »7>H. [See, al.Ho, a.<t to wliat cuntract.t amount to waKer» withlu the
nieaniuK of this act, liuurkr v. Short, 5 K. & U. 'J4>4 ; lliijgiHBun \. Simftton, t
C. I'. I). 7(i.]

A foot-race han Iwen hehl to he a " lawful jcame " within the provlM) at
the enil of sect, in, llnUn v. Murrintt, 5 C. B. M|H; [hut when* the tranHacth>n
l.s In Mul)stauce a wauer. the proviso thw-s not protect It; therefore, in Di<j'jlr
V. /liiitjii, '2 Kx. I). 4'.'i;, it wa.s lieiil l»y the Court of Appeal, nverruilnu llaltif
V. M'trrintt, .'» C \\. His, tlmt wlien- two imtsous ha*l «leposlie«l a errtnln nuin
ca<'h, to al>l(l«> tlie event of a walkini; match itetween them, it was competent
for one of them to revoke the stakehoUler's authority to pay «)ver tlie money,
ami to recover It hack hy action; Trimhlr v. //«//, 5 App. Ca. 342.]

A kintl of };amiiii; having spruii:; up by the o|M'nlnu of places eall<*tl UetthiK
Houses, the owners of whii-h recelve«l money tm tiie promise to pay so much
upon llie events of horse-races or the like, the statute l»» St 17 Vict, c lIU.
■was passed, hy which [every] such house [oltlce, nxim, or place (F.nnttruiitl
V. Milhr, L. U. U 1^. H. 440; Ihnra v. Ftninrk, L. I{. 1» C. V. SM ; t;,illii>f.ty v.
Mari>i>, H y. n. I). 27.*.; :.l I.. J. M. C .'>:«; Smne v. Hill. 14 t^. 11. I). :.mm ; 54
L. .1. .M. (V 9a,)] are declareil to l>o common uamtnt; houses within the niean-
Inj; of the H & 'J Vict. c. 109, s. 2; hy s. 4, persons receiviny money In any
such liouse are made liable to a |H>iialty, aud the money so paid can l>c recov-
ered back under s. 5, as paid to the use of the party makluK the tleimslt.
[This act has In-en amended by :<7 Vict. c. l.l. as to the sco|k' of which a<*t,
see C»x v. Amlrnn,, 12 (^. 11. I). 12»',: :,:\ I.. .1. M. <\ .14 J^ee also Ul.lh'tm v.
ftamg'l'-n, 44 L. .1. C. 1*. 'Mrj; .hnkn v. Turi'in, \'A ^ »• l> •'»<•'»; .V» L. J. M. V.
U!l ; the :ta i :»»■. Vict. c. y4, s. 17; anil f«>r an instance of irandnj; under this
latter statute, Itrw v. Jiamlon, a t^. B. I). 4.'i4.

The H jL y ^'ict. c. 1011, did not extend to India ( where however, it has since
been followed), ami therefore l)y the common law of Kn^land (which was In
force In India In lH4rt), an action was maintainable on a watfer made there,
aUlioui;h the parties had no previous Interest In the subject-matter, If the
wn^er was not airaliist piil)llc polh-y, or against the Interest or fecllnjfs c»f
third parties, aud diil not lead to any lnde<'ent eviden«"e. See llnmloll Thack-
oitrs'iiiltt^.t V. Sinijiinutitll /thntnlmull, 4 Moo IihI. .Vpp. f. '.VM ]

Witli respect to the nntiirf of the intrri-M wldch the 14 (ieo. W, c. 4M, re-
quires, Lonl Tenlerden, in I/ulJhnl v. Kijintr, 10 B. & ('. 72.'», expres.seil a
stronj; opinion that It must be 'i pininitDy our. A policy effected l>y a father,
in his own name, on the life of his son, was, in tliat case, held void. '• It Is
enacted," says Bayley, J.,*" that no jjreater sum shall Im* recovenMl than the
ann'iiiU of thf riilup of the Interest. Now what was the ammint nf the mine of
the interest in this case? Certainly not one farthing. If a father, wl.shlni^
to liive his son some property to dispose of, make an insurance on his .son's
life, in his (the son's) name, not for his (the father's) own benefit, i)ut for
tlie benefit of the son, there is no law to prevent his doinj; .so; but that is a
transaction tuiite ditferent from the present." [See also IlrMon v. West, 3
B. & S. .')70. In WnrHnnijtOH v. Curtis, 1 Ch. D. 4rJ; 4:> L. J. Ch. 250. a father
had efl'ected a policy for his own benefit on the life of and In the name of his
son, and on his son's death had taken ont administration, and received the
sum insured. In a crcditi>r's suit it was held tliat.as the office had not chosen
to resist the claim, the maxim potior est conditio possidentis applied, and the
father was entitled to retain tlie money as against the creditors.]

DALBY V. INDIA AND LONDON LIFE ASSURANCE CO. 1553

A creditor (as is well known) has an insurable interest in the life of his
debtor, Anderson v. Edie, Park. Ins. 8th ed. 915 ; unless, indeed, the debt be
an illegal one, Dwyer v. Edie, lb. 914; [see Hehdon v. West, just cited, where
it was held that a clerk in a bank had an insurable interest in the life of the
managing partner by reason of an engagement by the manager to employ the
clerk at a certain salary for seven years, to the extent of so much of the seven
years as remained unexpired at the time of the effecting of the policy. And
in the same case the court held that the clerk had no insurable interest by
reason of a promise to him from the manager that he would not, during his
life, enforce payment of a debt due from the clerk to the bank. One of two
joint obligors of a bond has an insurable interest in the life of the other,
Branford v. Saunders, 25 W. R. Ex. 650.

Upon the analogous question what constitutes an insurable interest in
cases of marine insurance which, as we have seen, are excluded from the
operation of this statute, see judgment in Seagrnve v. The Union Marine
Insurance Co., L. R. 1 C. P. 305 ; Wilson v. Jones, L. R. I Ex. 193, 2 Ex. 139;
Ebs^corth v. Alliance Marine Insurance Co., L. R. 8 C. P. 596; Inglis v. Stock,
10 App. Ca. 263; 54 L. J. Q. B. 582.]

A trustee may insure in respect of the interest of which he is trustee,
Tidsioell v. Angerstein, Peake, 151. Lord Kenyon held, at Nisi Prius, that a
wife who had insured her husband's life, need not prove that she was inter-
ested in it, for it mast be presumed. Bead v. Royal Exchange Insurance Co.,
Peake, Ad. Ca. 70. It has been always considered clear that a man may
insure his own life; but, as has been already observed [p. 307], the Court of
Exchequer has expressed an opinion in Wainirright v. Bland, that a man can-
not, in order to evade the statute, legally insure his own life with the money
and for the benefit of another. Indeed, there would be another objection to
such a proceeding, arising from sect. 2 of the statute, which requires the
insertion of the name of the person on whose account the policy was under-
written. [See Evans v. Bignold, L. R. 4 Q. B. 622, and Shilling v. The Acci-
dental Death Insurance Co., 2 H. & N. 42, in which case an action was brought
by the executrix of J. S. upon a policy of insurance on his life, and a plea
alleging that the policy had been made by T. S. in the name of J. S., but for
the use and benefit of T. S., and not for the use or on account of J. S., and
that T. S. had not any interest in the life of J. S. was held to be a good
plea.] Qucere, if an allegation in a declaration upon a policy that A. and B.
were interested, is satisfied by proof that A. was mortgagor, and B. mortga-
gee. See Pirn v. Keid, 6 M. & Gr. I.

[We have already seen that sect. 3 of the 14 Geo. 3, c. 48, provides that in
all cases in which the assured had an interest in the life or event in respect
of which the policy is eftected, no greater sum shall be recovered or received
from the insurer or insurers than the value of that interest at the date of the
policy.

The Court of Queen's Bench put upon these words in Ilebdon v. West,
supra, the construction, that where there are several policies effected with
difl'erent offices, the assured can recover no more from the insurers, whether
on one policy or many, than the amount of his insurable interest. " Look-
ing," said the court, in that case, " to the declared object of the legislature,
we are of opinion that though, upon a life policy, the insurable interest at
the time of the making the policy, and not the interest at the time of the
death, is to be considered, it was intended by the 3rd section of the act that
the insured should in no case recover or receive from the insurers (whether

15r>4 (JOlXSALL V. Iinl.DKKO.

upon out* policy or many) more than tin- InHurahU- intort'iit whli-li tlir {htiuio
iiitikiiit; the In.siirHncc Iwul ut ttu> tlm«r lii> hiMiiriMi tlif llf<*. If fur i;rt*at«r
HiTiirliy Ik- tlilnkn tit to InNurc with nimiy p«-rson>i niul l>y dliriTi-nt conlnietM
of insiiniiiif, ami io pay the prcniliini** upon cMth policy, h«* U at lilM-rty tu
do ?«o, hut hf CUM only rrcovrr or rt-cvlve upon the \\ho|i> tin* nnmunt ut hln
lnsural)lc intcn-st ; and If lit- hn.H ri-rclvc«l tin* whole amount from nni* In-
surer, he is precluded by the terms of Ihe ;lril section «»f the otnlute fr«>m
recoveriu!; any more from the others. Any aruument ari^lnt; from the nU|>-
poseil hardship of allow inu the liitiirers In such a case to receUe and rulalo
the prendums without heln;; ol)||<;ed to pay the consideration for whicli such
prendums wen* pahl, would Im' i><|ually applicable to the case of marine
Insuranres, upon which, however nniny policies there n»ay Ik-, the under-
writers are only liable to the extent of the value Insured."]

The priiu'lpal case of UixUnU v. linlih ri» did not Indeed turn on the statute
of 14 (ieo. :i, but on the common-law doctrine, that Insurance Is a contm«'t of
liKli'iindty, the act applyin;: to cases where there never was an lnte*fst to
Insure; uml nit it is mnr ilrriilnl Ih'it it nnilruft nf lifr iimuninrr in nnl <»«»• nf
iiiiU'innitij, so It is nl>>o held that the elTec-t of tlie statute is only to re<|Ulre an
Interest In the life Insured at the date of the c«intract, /< ■" - ^ /'■- /•■-'■■ • '
LiiuihtH Ash. Co., iintr, p. 2t»7.

Althoii;;!! the doctrine establlsheil l)y <iinl»iill v. /<.././. io n.-in tseii neon-
nisi'd in l:x jKirlf Aiidrfirg, I Madd. '>''.i; Ihnsnn v. liliii-kir-rll, 4 Hare's Kep.
4;»4; Unihi-r v. Morris, I M JL K. *>2, It ha»l been decided that the converse of
(linlsitU v. liiilibro iliti not hoUl t;o«Kl; .•»o that where an owner of stacks
malii-iously set on lire, had bi-en paid the amount of his Iohs by an Insurance
olllcc, he was allowed, notw ithstaiidini;, to recover against the hundred,
under the ;> < , 1. <•. •.':', Chirk- v. Ithjthimj, '2 B. & C. 2.'.4 ; S. 1*. Mntnn v.
Sttinsliiirij, 'J Marshall on Insurance, .'Ird ed., l'M\; Yntrs v. White, 4 HInjj.
N. ('. 27'.'. [And In a recent case, it was hehl that In an action for personal
Injuries sustained throuijh the defendant's nejill^rence a sum received by the
pl:iiiititr upon an accidental iusiiran<-e policy could not be taken into account
in reduction of danui;;es. Jini<ll>urn v. tirntt Wrstrrn Hail. <'»., I,. \{. |()
Kx.h. 1 ; cf. .hl.srn v. A', it 11'. /;,.//.i l)„rk r,,.. \.. |{. 10 C. 1». :MX).] In the ca.sc
I/iilhiml v. Smith, Ci Ksp. 11, honl KllenlHirouyh «^renn-d to be of opinion that
If A. insured the life of 15. his debtor, nml afterwards the d«'bt was paid off.
B. mijiht, by contluului; to pay the premiums, ki-ep the policy alive for his
own l)cncllt. (.\s to the circumstances under which a stranger to the policy
will) pays preiniums to keep it up, uniy acquire a lieu for the amount .so paiti,
see III re Lrslie, 2:1 Ch. 1). .".2: .".2 L. J. Ch. 7<;2.J

That the statute only applied to the ori;;inal parth-s to the contract, and
not to their nssiuiu-es, we have already seen In the «-ase of Ashlfij v. Afhlftj,
ante, p. 307 ; the etlect therefore of the decision in l>iilt»i v. Ihe Imliu nud
Lomhtti Ass. Cd., scem.s to be to put the original party etlectiny the policy in
the same position as an assi<;nec confessetlly was in. anil to make the con-
tract itself what in its terms it purports to be. not one of Indemnity, but an
enjiairoment to pay a certain sum on the happeninir of a certain event, in
consideration of the payment of the premiums in the meanwhile.

But marine insurances and insurances aijainst Hre still remain, as they purport
in terms to be, contracts of indemnit;/ ; thus, in Potrles v. Innes, 11 M. & W. 10,
it was held that a person who assigns away his interest in a ship or ^oods
after attectin<; a policy of insurance upon them, and l)efore the loss, cannot
sue upon the policy : except as a trustee for the assignee in u case where the

DALBY V. INDIA AND LONDON LIFE ASSUKANCE CO. 1555

policy is lianded over to him upon the assignment, or there is an agreement
that it shall be kept alive for his benefit. [On the other hand the insurable
interest of the assured is not determined by his parting after the loss with
the property insured, for he may sue as trustee for the person to whom he
has assigned it, together with his interest in the policy, SparJces v. Marshall,
2 Bing. N. C. 761. As to where a trustee may sue and what he may recover,
see Ellsworth v. Alliance Marine Insurance Co., L. R. 8 C. P. 596 ; Collinriridcje
V. Royal Exchange Assurance Corporation, 3 Q. B. D. 173. Where a contract
of sale of property insured contained no reference to the insurance it was
held (James, L. J., dissenting), that the vendor who on the destruction of
the propertj^ by fire before payment of the purchase-money recovered the
amount insured did not receive it as trustee for the purchaser and could not
be compelled to hand it over to him, Rayner v. Preston, 18 Ch. D. 1, 50 L. J.
Ch. 472.

By 31 & 32 Vict. c. 86, the assignee of the policy is empowered to sue in his
own name where any policy on ship, goods, or freight has been assigned,
" so as to pass the beneficial interest in such policy to any person entitled to
the property thereby insured." In Lloyd v. Fleming, L. R. 7 Q. B. 299, it was
held that the assignee of a policy " duly assigned," after loss, might under
the above provision properly maintain an action in his own name on the
policy; and see North of England, &c., Co. v. Archangel, &c., Co., L. R. 10
Q. B. 249. The Judicature Act, 1873, 36 & 37 Vict. c. 66, also contains wide
provisions for transferring to the assignees of legal choses in action all legal
rights and remedies in res^ject of the same, see s. 52, sub-s. 6.

Though where property insured lias been destroyed by fire after a contract
of sale, the unpaid vendor, while retaining his right to compel payment of
tlie purchase-money, can nevertheless before it has been paid enforce his
claim against the insurers, Collingridge v. Royal Ass. Co., supra, the latter
who have so i^aid will l)e entitled to recover back from him after payment by
his purchaser an amount equal to the sum recovered b}^ him under the insur-
ance. For the contract of fire insurance being one of indemnity the insurers
are not merely subrogated to all rights of action of the assured whereby his
loss may be diminished, but are also entitled to the benefit of anything which
the assured has received in reduction of the loss, provided it was due to him
as of right and was not merelj' bestowed as a gift, see Castellain v. Preston,
II Q. B. D. 380, 52 L. J. Q. B. 366; distinguishing Brirnand v. Rodocanachi,
7 App. Cas. 333, 51 L. J. Q. B. 548. See also Darrell v. Tibbitts, 5 Q. B. D. 560;
50 L. J. Q. B. 33; Marine Insurance Co. v. China Transpacific Steamship Co.,
11 App. Ca. 573.

Another eff"ect of the I'ule that insurance other than life insurance is a con-
tract of indemnity is that] if there be two insurers of the same subject-
matter, and one of them pays the loss, the other is discharged, Morgan v.
Price, 4 Exch. 615. The rule, however, is [when applicable] subject to a
qualification which applies to all cases of valued policies, namely, that the
parties may agree upon a merely arbitrary estimate of the value of the subject
insiired, by way of liquidated damages ; and this estimate will, in the absence
of fraud, be the measure of the liability of the insurer. See Irving v. Maim-
ing, 6 C. B. 391 ; ^Barker v. Janson, L. R. 3 C. P. 303.

The effect of this rule as to the valuation in a policj', combined with the
other as to insiirances being a contract of indemnity is, that where an assured
has been reimbursed, either by payment of another policy or otherwise, the
amount received goes in reduction 2^i'o tanto of his claim, and if it amounts

1556 GODSALL V. UOLDKICO.

to the vnliidtion in tlu- policy, it cxtiiiKiiiHlu'ii tlu* ilulin. On tiiiM principle
was based the decision in] Irriiuj v. Uir/mrdson, 1 M. i. Hoh. I5.t. [Then*]
tlie defendant had insured Tor 170<J/. with a (iiasj^ow company, and 2uiM)/.
witli tlie Alliance olllce, on the sidp Stri/tturr, valued in f»>th jHilirirs at
;!IMX)/. : he received botli sums, the Alliance not l)ein;j, wlien lliev paid, awaro
of the former insurance. 'I'he Alliance afterwards brought an action to
recover l)acli 70<>/., belny the excess ttf the amount paid ab«(Ve the value
declared, anil Lord Tenterden helil them entitled to recover, the defendant
beins; l)ound by tlie valuation in the policy, though the vessel was really worth
^700/.

[It Is true that] In Iiuu»jirUl v. linrnrg, 4 Camp. 22H, where the valueH
declared were CAHM. in one policy, and M<»00/. In another; the Insuretl was
liermitted to recover GOO/, upon the fonner policy. thou:;h he had already
recovered (JiXHj/. on the latter, the real value Ik-Iuk s.Vn*/. [It is however
submitted that Itnusjlftil v. Ilnrum, which was d(>ubted In Irrhnj v. lUrhnnl-
»<>H, must be con>iiden'd as overruh-*! by llniri- v. Ji>ne», I H. A ('. '{\'i. W'l L..I.
Kx. i;{2. In that «a.se the action was bron;;ht on a policy of Insurance f<)r
24(K)/. eflecled on a ship valued at \\'1K*M. The ship was Insun'd by other
policies, in one of which the value was llxetl at 5U0l)/. On these other policies
the |)lalntit1'had received 312(>/. \'^». M., and he wom held entltleil to riH'ovcr
oidy the ilitt'erence between that sum ami 32(H)/., the value In the policy sueil
upon. In \i>rth nf lluiil'iml /nsurniirf .{ms. v. AnnMtnnnj, L. U. .'» (j H. 244,
a ship which liad been insured in a valued policy for (;<mmi/. was run down and
sunk by another ship, and the sum of Cixto/. was then-npon paid by the under-
writers to tlie owners. The owm-rs afterwards recovere«l :,iHH)l. in a suit In
the Court of .Vdmiralty in respret of the damage cause«i by the collision, and
it was held, that althoimh the true value of the ship was !MMN)/. the under-
writers were nevertheless entitled to the damages thus recoveretl, whl<-h were
in the nature of salvajje. See also Cnmmercint I'ltion Atm.t'u. v. I.istT, \.. K.
'J Ch. 4H.S. 4:i L. .1. Ch. t;()l.]

A policy on floods " lost or not lost." Is a contract of indemnity a<ralnst all
pitst as well as all fnture losses sustained by the a>s\ired In respect to the In-
terest insured; where therefore a policy was ellecteil on :tt',o bales of cotton,
lost or not Ii>k(. at and from Bombay to London, it was lu-ld the assured miyht
recover fi>r dama;ie to the j;oods fnun perils of the sea during; the voya;ie,
although such damaije had been snstaiiietl l»efore the purchase of the jjoods
by the assured, it not appearing that the ijootls had been purchased an dam-
aged goods, Sutherland v. Pratt, 11 M. & W. 296.

[It must be observed that the 10 Cieo. 2, c. 37, does not apply to fon-ign
ships. They were onutted from its provisions. It Is said, owing to the dilll-
culty of bringing witnesses from abroad to prove interest. Insurances on
foreign ships are therefore valid, even though there is no interest, provided
the policy appears on the face of it to be a wager policy; see 'JJtfllKXifnn v.
Fletcher, 1 Dougl. 3I.">; Cranfiird v. Hunter, S T. R. 13; Lucena V. Craufurd,
3 B. i P. 101; and Cousins v. Xanles. 3 Taunt. 512.]

The principal case settled the English law, as to the nature of
life insurance, and distinctly held that a policy of life insurance
is not a contract of indemnity merely, and that if the insurer

DALBY Y. INDIA AND LONDON LIFE ASSURANCE CO. 1557

te an interest in the insured at the time the contact .™le
he can recover in the event of a loss; Godsal v Boldeio 9
tst 72, was overruled by the pnucipal case, only m respec to
tLl. rule concerning the insurance of lives, and is neveit leless
osotn Witt the' aw both in England and America, relating
to fii^ and marine insurance, in so far that the decisions, with
a ft exceptions, uniformly maintained the F^»f 7' /^
there must be an interest in the insurer, both at the time of the
inception of the contract and at the time of the loss.

Ilthouch wager policies seem to have been recognized as
vahd n Englaifd before the 19 G. II. c. 37, they never have
Zeno recognized in the United States, except m the state of
New Jersey, and in a few early cases in the state of New Yoik.

I. As to Marine and Fire Inmratiee.

(a^-) wager policies. -In Howard .. Albany Insurance Co.,

3 Den 8M, the court defines a wager policy as follows : " When

he i^surei has no interest at stake, the policy is a mere wag^i

where one party stakes the sum insured, and the othei the

e i: pall. I the happening or not ^^^VV^;;^^^^^^
event " Wager policies were sometimes reluctantly ^"PPO^t''^ '
rjihel ... Church. 2 Johns. Cas. 333, where it is held tha a

su™ having insured the profits to be made on --goj^jj
was to be brought by a certain ship, when in fact the ship
C!ht no carlo at 111, could not recover the premium w^nch
he td paid, Kent. J., said. "I consider this a wager pol c ,
t J a nier; betting on the return of th. ship, ^^ if she lad
not returned, in consequence of any P-''! -^^^f ^^ '^
policy the plaintiff would, on its production, have been en
poiicj, iiic 1 „,;*liniit raovino- any interest or

titled to the sum insured, . . . '"™°.'^* P'°™= ",/„ p ■ ,4,.
coods on board." See. also. Clendin.ng v. Church, 3 Cai. 1« ,
lulil .. Ocean Ins. Co.. 6 Cow. 318; See, however, fcr

X^ Z l^!iLor.y is .aias. wage, policies - With
the exception of the cases above cited, *>- ^'ee-ons are rnu-
formlv a-ainst the maintaining of an action on a wage.
S In Pritchet .. Ins. Co., 3 Yeates 458, apparently
S t Le in this country where a wager policy -^^^^
court says "At the common law, a person might have insuie
vXriny interest. The system of 'f -^^ ° "f ;;7j
dictated the act of 19 Geo. II. c. 37, has been adopted by oui

1558 DALHY V. INDIA AM» LONIM>N LIFK ASSl'ltANrK rO.

courts." In Atnoiy «'. (liliiuiii, J M.is«.. 1, tin* j.i.umiit •ii-
(It'UVortMl tn show that thr iiolit y was a wa^criiij; |H»liry, and
that, as sucli, it was valid; thu cimrt, while holding timl thu
policy was a policy of interest and not a waj^erin^' |M)li(V, t«Mik
occasion to say, " It wt>nl«l seem a disgraceful (Mcujalion of the
courts, to sit in judgment In-tween two jramblent, to decide
which was the l)etter calculator of chances, or whi«di tiie more
cunning' of the two."

Ami 1)V Sidi,'wick, .1., *• This [as to a waj^er policy] im a very
important (|instion, an<l comes liefore this court for the fintt
time." lie apparently concetles tluit at common law, wager
policies were valid, hut discourages them in his opinion in this
case, as hostih' to puhlic policy.

Dana, Chief .lustice: ** .\s on a wager policy, my present
opinion is, that the plaintitY cannot recttver. N«) precedent of
such an action supported here has l>t>en produectl, and I Iwlicvo
none can he producecl. We must, therefore, deiide this on gen-
eral principles of justice and good policy. The very fonihlo
reasons set forth in the preand)le of the ID (Jeo. II. e. !}?, to which
I have hcfore referred, apply ecjually t«> this and every other
civili/c(l and well-goveruiMl commercial I'ountry. Whether
that statute extended to this country or not, is a (luestion not
necessary now lo he determined. I»ut if it were, and we should
iind no precedents in our own courts to overrule us, I should Ik-
[)ri'i)aieil to say that, lus wager policies are injurious to the morals
of tile citizens, tend to enct)urage an extravagant and |>i?culiar,
hazardous spe<ies of gaming, an<l to i-xpose their property,
which ought to l)e reserved for the iM-netit of real commerce,
they t>ught ni^t to receive the «()untenan«'e of this court." See
Adams r. I'cnn. Ins. Co., 1 Kawl. '.'7: Wilson r. Hill, 3
Met. t'.t'); Howard r. Alhany Ins. Co., :5 Den. 'M)\ ; Sawyer v.
Mayl.ew, ol Me. :^08 ; IValxuly i-. Wash. Ins. Co., :20 Harl). 1330;
Freeman r. l-'ulton Ins. Co., 38 Barh. 217; Tallman v. Atlantic
Ins. Co., 'Id How. Vv. 71: Murdock r. CluMiango Ins. Co., 2
Comst. 210 ; Hone r. Mut. Ins. Co., 1 Sandf. 137 ; Kagle Ins. Co.
V. La Fayette Co., 9 Ind. 443 ; III. Mut. Fire Ins. Co. v. Marseilles
Mauf. Co., 1 Gil. 230; Gilbert v. N. Am. Ins. Co.,*23 Wend. 43;
^Etna Ins. Co. v. Kittles, 81 Ind. 96; Sweeny v. Franklin Ins.
Co., 20 Pa. St. 337 ; 3 Kent's Com. 371. And even where two
tenants in common were jointly insured against fire, but one
of them had assigned his interest in the premises to the other, it

DALBY V. INDIA AND LONDON LIFE ASSURANCE CO. 1559

was held that they could not maintain a joint action on the
policy ; Murdock v. Chenango Co., 2 Comstock 210 ; while it
is necessary that the insurer in order to recover upon his policy,
must show an interest in the subject of the insurance, the mere
fact that the policy exceeds in amount the actual loss sus-
tained, would not necessarily cause the policy to be construed
as a wager ; Franklin Fire Ins. Co. v. Vaughan, 92 U. S. 516 ;
De Longuemere v. The Phcenix Ins. Co., 10 Johns. 127. And
where there is a disparity between the estimated value of the
property insured, and its actual value, in the absence of fraud,
the plaintiff may recover the full amount of his policy ; 1
Sumn. 451 ; Clark v. The Ocean Ins. Co., 16 Pick. 289. In the
latter case the court lays down the general rule, that if the
insured has some interest, and the valuation is fair, and made
with a view to an indemnity and not for a wager, the court will
not open it, noi* set it aside on account of an over estimate of
the interest at risk. In Coolidge v. Gloucester Marine Ins. Co.,
15 Mass. 341, where the value of the subject of the insurance
was uncertain, it was held that the valuation should not be set
aside, although it greatly exceeded the actual value ; and when
the valuation is made by the insurer, he is, in the absence of
fraud, esto})ped from disputing it, and is liable for the value
fixed, although the real value of the loss is less than the value
insured ; Clark v. The Ocean Ins. Co., 16 Pick. 289 ; Atlantic Ins.
Co. V. Lunar, 1 Sandf. Ch. N. Y. 91 ; Forbes v. The Manfg. Ins.
Co., 1 Gray 371 ; Akin v. Ins. Co., 16 Martin (La.) 661 ; Lover-
ing V. Merc. Ins. Co., 12 Pick. 348 ; AVhitney v. Amer. Ins. Co., 3
Cow. 210 ; Davy v. Hallett, 3 Cai. 16 ; Fuller v. Boston, &c., Ins.
Co., 4 Met. 206 ; Pritchet v. Ins. Co., 3 Yeates 458 ; Gardner v.
Col. Ins. Co., 2 Cr. C. C. (U. S.) 473 ; Alsop v. Com. Ins. Co.,
1 Sumner 451 ; Carson v. Mar. Ins. Co., 2 Wash. C. C. (U. S.)
468 ; Marine Ins. Co. v. Hodgson, 6 Cr. (U. S.) 206 ; Patapsco
Ins. Co. V. Coulter, 3 Pet. (U. S.) 222 ; Griswold v. Union, &c.,
Ins. Co., 3 Blatch. (U. S.) C. C. 231 ; Rowland v. Ins. Co., 2 Cr.
C. C. (U. S.) 474. See Wolcott v. Eagle Ins. Co., 4 Pick. 429.
(6) Insurable interest. — The interest need not be that of a legal
title, but may be such only that the insured is pecuniarily inter-
ested in the preservation of the subject of insurance. In Car-
ter V. The Humboldt Ins. Co., 12 la. 287, the plaintiff was held
entitled to recover on a policy which he had effected to protect
his mechanic's lien on a hotel and the court in that case says:

1!JG0 I»ALl:V V. IMUA AND l.(»Nli<»N I, III! ASSIMtANrK CO.

"The priiicijnil cjiu'stion is, wlinlui .i in'i ii.iini > mn i«. an
insiuiiblt' iiitcii'st. Insuiaiuf is a (MHitniit (»f iii(li'iiiiiity with it
j)ers()n who has an inlfirst in thf prustTvatioii of j)io|)erty, or a
limitfd (|U.ilili(<l iiitoifsl in propt-rty, <»r any ri-asonahh' exiK-c-
tatioiis of property or atlvaiita<(e to U- (U-rivcd tlu-refroin.

''It may he j^enenilly said, that any interest may Ih' insured,
it" tht! peril against which instirance is niaih- wonhl hrinj^ upon
the insureil l>y its immediate and dirrrt idTi-ct a |MM-uniary h»ss."
See Franklin Ins. Co, r, Coiites, 14 Mil. l*H'» ; Proteetion Ins.
Co. r. Hall, 1.") 15. Mon. (Ky.) 411 ; Kohrkuh r. (M>rnianiii P'ire
Ins. Co., i\2 N. V. 47; Sansom r. Hall, 4 Dall. 4;V.»; Ins. Co. v.
liaiini,', l!0 Wall. l.')t»; Fenn r. New Orleans .Mnt. Ins. Co., 58
(Ja. oTS; Kohrhaich r. .Klna Iiis. Co.. 1 T. \ C. ( N. V.) 'Mi\K

A eommission nu-rchant has an insurable interest in the
Ljoods ("onsi^ned t<» him; or any pei'son having |M)ssessi«»n under
a contract that may afl'iud him profit; KoliinsAn r. N. \. Ins.
Co., - Cai. 3 ')7 ; Kon^duii-st r. Star Ins. Co., l'.» la. .'5«»4. So
with warehousemen, carriers, and Ixiilees of pM>ds where a Umm
would pecuniarily aft'eet them ; Savage r. Corn Ins. Co., 4 Hikhw.
1 ; atVnnicd :'.•! X. V. T..').'), \'2 Harh. ;V.>.') ; Putnam v. Mere. M.
Ins. Co., .") Met, :is»;; French v. Hope Ins. Co., ir. Pick. Hl»7.
So with a shi'iitT in j^oods he seizes; White v. .Madison, 2t>
N. ^. 117: Warren r. Fire Insurance Co., Ul la. 4«J4. .\n
e(|Mitai)lc intcii'st is an insurahle interest; Swift r. N't. .Mut.
I'irc Ins. Co.. Is \'i. 'M)'t; where it was held that a |K)liey, i.ssued
t(t one who had po.s.st'.ssii>n of real estate under a defective duetl,
hut who was so situated that he could com|Md in e<|uity a valid
eunvi-yance from the holder of the lejjal title, was valiil. See
Curry v. Com. Ins. Co., \i> Pick. ').S/». Kven a tres|)asser, it
seems, has an insurahle interest, which cannot \n; disputed hv
the insurance company; Mayor, &e. v. Brooklyn Ins. Co., 41
liarh. 'I'M. A nmrtga^ee may insure his nmrt^'a^e interest,
thouj^h prohahly not U-yond it ; Davis v. (^uiney Mut. Fire Ins.
Co., 10 Allen il:{; H.dhn.ok v. Amer. Ins. Co., 1 Curtis C. C.
103; Fox c. Phienix Ins. Co.. ."i'J .Me. 333. A inortgaj^or may
insure his property to its full value, whether the mortgage
was made Ind'ore or after the poliiy ; French »•. Kogei-s, 1»> N. H.
177; see Carpenter r. Prov. Ins. Co., 1») Pet. VX'*; and even if
his equity of redemption has l^een seized on execution ; Strong
r. Manf. Ins. Co., 10 Pick. 40 ; and .so long as an equity re-
mains in luni. even after foreclosure until tlie title passes.

DALBY V. INDIA AND LONDON LIKE ASSURANCE OO. 1561

Stevens v. III. Iiis. Co., 43 111. 327. A mortgagor and mortgagee
may each insure the same building, and their [)articular interest
in the property insured need not be described ; Traders' Ins.
Co. IK Robert, 9 Wend. 405; Strong v. Manf. Ins. Co., supra;
Curry v. Com. Ins. Co., supra; Allen v. Franklin Ins. Co., 9
How. Pr. 501. Conveyances in the nature of a mortgage leave
an interest in the grantor sufficient to support a policy of in-
surance ; Holbrook v. Amer. Ins. Co., 1 Curtis C. C. 193 ; Rus-
sell V. Southard, 12 How. 139 ; Tittemore v. Vt. Mut. Fire Ins.
Co., 20 Vt. 546; Higginson v. Dall, 13 Mass. 96; Gilbert v.
No. Am. Ins. Co., 23 Wend. 43 ; Bartlett v. Walter, 13 Mass.
267 ; Lazarus v. Com. Ins. Co., 5 Pick. 76. A vendee in posses-
sion under an executoiy contract to purchase has an insurable
interest ; Shotwell v. Jefferson Ins. Co., 5 Bosw. 447 ; Draper
V. Com. Ins. Co., 21 N. Y. 378 ; Col. Insurance Co. v. Lawrence,
2 Pet. 25; vEtna Ins. Co. v. Miers, 5 Sneed (Tenn.) 139; Ayres
V. Hart. Ins. Co., 17 la. 176 ; McGivney v. Pluenix Ins. Co., 1
Wend. 85. A person liable as indorser or as a bondman for
safe keeping of property has an insurable interest to the extent
of his liability ; Insurance Co. v. Chase, 5 Wall. 509 ; Russell
V. Union Ins. Co., 4 Dall. 421 ; Fireman's Insurance Co. v.
Powell, 13 P>. Mon. (Ivy.) 311 ; Strong v. Man. Ins. Co., 10
Pick. 40; Williams v. Roger Williams ins. Co., lOT Mass. 377.
Also, tliosc generally liable by statute, or by common law,
or by contract, for the safe keeping of })ro|)erty of another,
may })rotect themselves by insurance ; as railroad companies ;
Eastern R. R. Co. v. Relief Insurance Co., 105 Mass. 570 ;
Monadnock R. R. Co. v. Manf. Ins. Co., 113 Mass. 77 ; com-
mon carriers; Chase v. Wash. Ins. Co., 12 Barb. 595; bailees
having the goods of another for repairs or manufacture ;
Getchell v. yEtna Ins. Co., 14 Allen 325. A mechanic's lien
constitutes an insurable interest. See 12 la. 371, supra ; Frank-
lin, &c., Ins. Co. V. Coates, 14 Md. 285 ; Protection Ins. Co. v.
Hall, 15 B. Mon. (Ky.) 411 ; Merchants' Insurance Co. v. Maz-
ange, 22 Ala. 168.

(c) Rule of damage and adjustment of loss. — 111 the absence
of agreement as to value of interest, the value will be limited
to simple compensation for actual loss ; lirinley v. Nat. Ins.
Co., 11 Met. 195; and after the compensation is received, no
matter from what source it comes, further action against the

Ifiti-J DALIIV V. INIiI.V AM» l.nSImS l.Ui: ASS U It A NT K TO.

iiisuivr is piL'tlutleil ; C'laij,' r. Muig;iti«)y«l, i ^ •ai.-, Inl. >i-e
Wood on Kile liisiiiunci', tliiip. xv.

(</) Coutinuity of iiitereet. — The interest must eXlMt at the
time of the h)ss; Wilson v. Hill, •} Met. M ; Ciiiroll r. Boston
ALitine Insnnince Co., H Miuss. .')1.j; Stetson r. Muss. Mutual
Fire Ins. Co., 4 .Muss. -ViO ; Mur(lo«-k r. ChenunjfO (\». \u».
Co., nupi-a : Krenih v. Rollers, !♦» N. 11. 177; Amorv v. Gilmiin,
xtipru; Seiimiins r. Loring, 1 .Mas. ( l'. S.) 1:27; :5 Kent'.s Com.
.'571, 2(1 .\m. L. C. oth ed. ssl ; Fowler v. ln<l. Ins. Co., 2»»
N. V. [21 .Mlhou'^h a temi)oiiiry suspension <»f interest will
not invalidate thf {loliey ; Uex r. Ins. Co., 2 IMula. Il')7 ; Lane
r. .Me. .Mut. Fire Ins. Co., 3 Fairf. (.Me.) 44; W.mmI v. Uut-
lands, Ace., Ins. Co., M Vt. .Vil'; Taylor v. L<iwell, Ji Mass. :531 ;
Worthini^ton r. lirai-se, \'2 Alhn :{x*J ; N. K., \f., Ins. Co. r.
Shettler, :5H 111. ItW,; Kinp^h-y r. N. K., A:e., Ins. Co.. M Cush.
:V.»:i; (;onlon r. .Ma.Hs. F. \ .M. Insuranee Co., 2 I'iek. 241>;
La/arus /•. Cuiii. Ins, Co., ."> I'iek. 7»» ; Stronjj r. Insuranee Co.,
10 I'i.k. 40; .la.k.son v. .Mass. .M. F. Ins. Co., 2:5 I'iek. 41>^;
lloojur r. Hudson Kiv«'r Ins. Co., 1") I5arl». 41:5; s. e. atVirmefl
IT N. ^ . 124. Hut see the eiuse of Coekerill i'. Cineinnati Ins.
( .... It; (). 14s.

II. .Ix to Lift- InHumnrf.

(rt) Interest In the Insured Is necessary. — It is well settled that
the insurer in a life poliiv niu.st h.ive some interest in the in-
sured. In Sini,deton v. St. Louis .Mut. Ins. Co., GtJ .Mo. 63,
where a ui'phew insured the life of his unele, it wa.H held that
the plaintiff had not an insurahh- interest in the life and eouUl
not reeover ; Ivusr r. Mut., vVc, Hrnetit .V.ssn., 2:5 N. V. /iltl. See
(Juardian Ins. Co. v. H«>i,Mn, SO 111. :5') ; iJenefit Assn. r. Hoyt,
4(; Mieh. 47:5. Sim- Clark v. Alh-n. 11 K. I. 4:5H; Trenton, .Ve.,
Ins. Co. V. .Johnson. 4 /al»r. ')7ti.

(A) As to the nature and extent of the interest. — • The law
seems well setth-d that in eases of tire and marine insuranee
the interest of the insurer in the sidijeet of insuranee must Ije
such that it can be estimated in dollars and cents ; in other
words, that in these cases the policy is a contract of indemnity;
but in cases of life insurance, while it seems that the interest
of the insurer, or of him who seeks to enforce the contract,
must be, in a certain sense, a pecuniary interest, the measure
and interpretation of the pecuniary interest is of a much wider

DALBY V. INDIA AND LONDON LIFE ASSURANCE CO. 1563

scope ; in other words, a policy of life insurance is a valued
policy, and if the relationship between the parties is such as
would support a gift or grant at common law, so that the im-
putation of a wagering intention is not prima facie raised, the
contract can be enforced ; Lord v. Dall, 12 Mass. 115 ; Loomis
V. Eagle, &c., Ins. Co., 6 Gray 396 ; ^tna Life Ins. Co. v. France,
94 U. S. (4 Otto) 561 ; Grattan v. Nat. Life Ins. Co., 15 Hun
74; Hoyt v. N. Y. Life Ins. Co., 3 Bosw. 440; McKee v.
Phoenix Ins. Co., 28 Mo. 383 ; Eq. Life Assurance Soc. v. Pat-
erson, 41 Ga. 338 ; St. John v. Amer., &c., Ins. Co., 2 Duer 419.
See Stevens v. Warren, 101 Mass. 564. A creditor has an in-
surable interest in the life of his debtor to the amount of the
debt ; Morrell v. Trenton Mut. Life & Fire Ins. Co., 10 Cush.
282; Rawls v. Am. Life Ins. Co., 36 Barb. 357, 27 N. Y. 282.
So the debtor may insure his own life to an amount beyond the
debt for the benefit of his creditor, the balance over the debt
enuring to such parties as the debtor may designate ; Am. Life,
&c., Ins. Co. V. Robertshaw, 26 Pa. St. 189; and it has been
held in New York that one member of a firm, who furnished
the capital in the business, could insure the life of his partner
on the ground that the death of that partner would imperil the
capital invested ; Valton v. Nat., &c.. Assurance Soc, 22 Barb. 9 ;
affirmed, 20 N. Y. 32. It seems to be well settled that where
one has an expectation of pecuniary profit through the execu-
tion of a contract which the death of one of the parties would
defeat, he has an insurable interest in such party's life. And I'j
seems to be immaterial, so long as the profits anticipated are
necessarily uncertain in amount, what amount is insured. Such
a policy is, to this extent, a valued policy, the amount of the
jjolicy being an agreed statement of the amount at risk, which
cannot afterwards be denied by the company; Bevin v. Conn.
Mutual Life Ins. Co., 23 Conn. 244; Morrell v. Trenton, &c.,
Ins. Co., 10 Cush. 282, supra ; Hoyt v. N. Y. Life Ins. Co., 3
Bosw. 440 ; Miller v. Eagle, &c., Ins. Co., 2 E. D. S. (N. Y.)
C. C. P. 268. See Forbes v. Amer. Mut. Life Ins. Co., 15 Gray
249.

(c) Continuity of the interest. — The principal case settled the
law in England, that if an insurable interest existed in the in-
sured at the inception of the contract, the provisions of the
statute, 14 Geo. III. c. 48, have been complied with, and it
will not defeat his risrht of recoverv if that interest is lost

1504 I».M.l:V V. INDIA AND LmNDmN LIKK A»»IUAN<'K CO.

Itcfoiv the (It'iitli iiisiind ;i;^Minsi occurj*. Wh»'tlu*r this rule ol>
liiiiis in tliL' I'liitrtl Slates lias la-en (louhtt'tl ; Miit. Lite In?*. Co.
t'. Wager, 27 IJaib. .■}.')4 ; Kennedy t'. N- Y. Life In.surunce Co., 10
La. An. H()'.>; hut wliile it lias not Ix-en distinclly luljudieated
that the insurahle interest need exist only iit the ineeption of
the contract, there are dicta which whow the favor with which
this view that a continuing interest in a life policy is not neces-
sary, is regarde<l hy eminent justices; Phtenix Miit. I^ife Ins.
Co. V. Hailcy, Vi Wall. ( C. S.) «;i»; ; (Jrattan i'. Nat. Life Ins.
Co., l'> limi 14, Hupra ; X'alton r. Nat. Loan l-'tiiid Lif«« .\.«wn.
Co., -Ill Hari>. (N.Y.)U; St. .John r. Am. .Mut. Ins. Co., l:i N. Y.
.')! ; Conn. Ins. Co. v. Siharfer. '.>4 C S. 4'»T. .\n<l si-e UawLs
r. Anur. .Mut. Lift- Ins. Co., liT N. Y. l'^J : Looniis «•. Kagle Life
Ins. Co., ♦) (iray lii'D ; Conn. .Mut. Lite Ins. Co. t'. Schaefer, 15
A. L. J. :VM.

ROSE V. HART.

TRINITY, 58 GEO. 3. — C. P.

[reported 8 TAUXT. 449.]

Trover for cloths deposited by the bankrupt, previously to his
bankruptcy, with the defendant, a fuller, for the purpose of
being dressed : Held, that the defendant was not entitled to
detain them for his general balance for such work done by him
for the. bankrupt previously to his bankruptcy ; for that there
was no mutual credit untJiin stat. 5 G-. 2, c. 30, s. 28.

Trover for cloths deposited by the bankrupt, previously to
his bankruptcy, with the defendant, who was a fuller, for the
purpose of being dressed. At the trial, before Holroyd, J., at
the Salisbury Spring Assizes, 1817, it appeared that when the
cloths were so deposited there was a debt due from the bank-
rupt to the defendant for other cloths dressed by the latter.
After the bankruptcy the plaintiffs tendered the sum due for
dressing the cloths in question to the defendant, who refused
to deliver them up, without payment of the Avhole debt due to
him from the bankrupt. They then brought their action. For
the defendant it was contended that the case came within the
principle laid down in Olive v. Smith C«), and that he was
entitled to retain the cloths for his general l)alance. The jury
found a verdict for the plaintiffs; and, Holroyd, J., having
reserved the point.

Pell, Serjt., in Easter Term, 1817, moved for a rule nisi to
set aside the verdict and enter a nonsuit, on the ground urged
at the trial, and he cited Ex parte Beeze (6), as in point, and

(a) 5 Taunt. 56. Q>) 1 A.tk. 228.

1565

1. ',(;»; l:(»SK V. HAUT.

()l»sfivr(l, thiit th«' i)iin<ii)lt' of llu* rases which contnulul**!
tlu; (huaiiiK' theif laiil (l»»\vii \v i> \i. ioii>, iii.i>iiiutlj us it wml
to destroy the hiw of lien.

Gibbn, ('. .1.— Yoii are aware «if the ea.s«* of (Sreen v. Far-
mer {a^, wliich, hy-the-l>y, I may say has Ijeeii frenueiitly din-
re|,'ar(hMl. In a case in which I had the brief, and in which
case Lord Ashfmrfon was, a s|H'cial custom for dyen* to Imve
their 1,'cncral lien was proved; and notwithstantlin^ Grren v.
Fiirnur, that custom was acted upon in that ciise, and has U*en
many times since recoj^nised. The case Ar pnrtf lieezf is cer-
tainly contradictory to the case Kr pnrtf O.-k'-mhu (ft), sulwe-
(piently decided. The (juestion is of the utmost importance,
and we are quite «)pen to hear it di.sciis.scd. Take your rule.

Kule nini granted.

In the f(»llowinp Trinity term cau.He was shown by
I.ttiK, Serjt.. who conten»led that Lord Utirdtrickf, in Ex parte
Or/cfiiilen, rcco^Miised by Mittmjitlii, ('. .L, in itrfen v. Farmer,
had much narrowed the extensive construction whi<h he had
put in F.r pnrfe Ditzr, mi the words "mutual credits," in the
Stat. :') (i. 2, V. 'MK s. lis, nnd had ex» hulcd cases like the pre.sent
from its o[)eration ; ami referred to the liise of Cliane v. \Ve»t-
7nori' {<•), where a point similar to the present was made, but
the court, thinking that that ca.se di<l not involve the jjuestion
of nuitual crcilits, pave judi^m'Ut on tlu* point in lien. He
also cited liinhrnoil v. Hapfnief ( il), iind i-ontended, that the
<lecision in O/iv,' v. Smith did not apply to the present ra.se.

I*,JI was then heard in stipport of the rule. If the defend-
ant had sohl these cloths, and the assignees had brouj^ht their
action for moiu'y had and received, they must clearly have
allowed to the defendant the amount of their general balance
au^ainst the bankrupt, before they coidd have recovered the
difference, if any, from the tlefendant. .Mutual credit is u.sed
as synonymous with mutual trust. " Where tluMe is a tnist
between two men, on each side, that makes a mutual cre<lit " (/•).
The case Er parte Deeze, and the whole reasoning of Lord
Hnrdicicke on the subject of nuitual credit in that case (which
is recoe^uised and confirmed in Fmx'h v. Fenn, in Smith v.

(«) 4 Burr. 2214. (d) .'. Price. 503.

(h) 1 .Vtk. 2:55. (e) Per linllpr, .!.. French v. Fenn,

ROSE V. HART. 1567

Hodson (a), and both by Gibbs, J., in his statement of his
opinion at the trial in Oh've v. Smith (^), and subsequently, by
the whole court, in their final decision), is most strong for the
defendant ; but if the case Ux parte Oekeiiden, in which no
judgment was given, is to be upheld against the case JEx p>cirt^
Deeza^ confirmed over and over agam by subsequent decisions,
then it is admitted, that the defendant cannot succeed.

It is true, that this is an action of trover, and no case of this
precise nature has been decided; but the plaintiffs, by their
choice of action, can never prevent the defendant from having
the benefit of his statutable lien. In Jennings v. Cundall (c),
the plaintiff shaped his case in tort, in order to deprive the
defendant of the benefit of his infancy ; but the defendant
pleaded his infancy, and it was holden a good plea. In Ex
parte Deeze, Lord ITardwicke says, " It is very hard to say that
mutual credit should be confined to pecuniary demands, and
that if a man has goods in his hands belonging to a debtor of
his, which cannot be got from him without an action at law or
bill in equity, it should not be considered a mutual credit."
" There have been many cases which the clause of the Act has
been extended to, when an action of account would not lie, nor
could this court, upon a bill, decree an account." These strong
expressions acquire double strength when the judgment of
Mansfield, C. J., in Olive v. Smith, is referred to. " I should
have thought that the words of the statute meant only money
transactions; but if the extension of mutual credit be, as it
has been contended, a mistaken doctrine, the mistake is so
deeply rooted that it would be rash to overturn it ; and there
is a great deal of justice in the determination at which, not
only the Court of King's Bench, but the Court of Chancery,
have arrived on this point." This is hardly saying less, than
that the statute extends to cases of trover, and the whole judg-
ment lays down the rule of extension on the broadest ground ;
a rule resting as much on sound law as it does on justice.
(^Burrough, J. Is it the true meaning of the Act, to extend
the doctrine of mutual credit to cases where the goods are not
ultimately to be turned into money ? — Dallas, J. Where the
goods are specifically to remain as goods?) Lord Rardwiche, in
Ex parte Beeze, expressly goes on that ground. {Burroiigh, J.
In Lanesborough v. Jones (d), which was a decision on stat. 4

(a)4T. R. 211. (c)8T. R. 335.

(h) 5 Taunt. 58. {d) 1 Peere Wms. 325.

l')68 iiosK V. HAiJT.

Anne, c. 17, s. 11, the juil^Mnt-nt of Lord Chantellor Cowper
Wi-nt on the ground thiit then; WiLs ii phiin nuitiuil credit.) In
Fi'iwh V. Fen/i, if trover h;id \h'vu hrou^lil, it nm.Ht have U-eii
brou«^ht on the same grounil on whicli it iiuxy Ixj brought here.
{ litin'oui/h^ J. No. In French v. Ffnn, the |Harl.s were heiit
out on an express contract to Ixj sold, and tliou^h the saih* wsis
after the bankrupt* y, tlie contract wiw before the Umkruptcy. )
In Smith V. //'*</x'</j, the iissi^iUH'S niij^ht have brought trover; and
the whole judgment in tiiat case goes to sliow thait if the action
had Immmi so shaped, the assignees miglit have recovered. ( Iril-hn,
C. J. The judgment of the court, in Smith v. Iloihon, as to
the probable suc<"ess of the a.ssignees, if thev haul brought
trover, goes on the ground of fraiid an*! undue prefi'rence,
with whirli that case was tinctured.) Tlie hinguage of the
cnurls, in AV /mr/f /fffzt-, Fffni'h v. Ffntt, and Olivf v. Smith,
is rlrar to show that the form of action can make no difTi-rence ;
and the plaintiffs (d) nre not to l)e shut out from the IxiUetit of
the rule so broadly laid down and so strongly conlirmed, lie-
cause this is the tirst action »)f trover for goods in spe< !-• oii

which the point has arLsen.

Cur. adv. vult.

And iiiiw, the case having stood over till this clay,

GihltH, ('. .1., delivered the judgment of the court.

This was an action of trt)ver for cloths left by Smart, Ixjfore
his i)ankrui)t(V, with tiie d»'fendant, who wjvh a fulU-r, to Ixj
tlressed.

There was tiicii ii balance due fmni the b.iiikru[)i to liu- de-
fendant for work done tm other cloths.

The assignees tendered to tin; defendant the sum due for
work <lone on the cloths in his posst-ssion, and demanded them
from him; but the defendant refused ti) diliver them up»
unless he was paid his general balance.

The question was. Whether he were entitled to retain them
for that balance? And Mr. Justice Holroi/il, liefore whom the
cause was tried, at the Spring assizes for Salisbury, IHIT, re-
served the point for the opinion of the court ; and we are of
opinion that the defendant, who received these cloths for the
purpose of dressing only, had no right to detain them for his
general balance.

(a) Sic ill the report, hut ought to be defendant.

KOSE Y. HART. 1669

He founds his claim on the ground of mutual credits, men-
tioned in stat. 5 Geo. 2, c. 39, s. 28, and the construction which
has been put upon that statute.

The case Ex parte Deeze (a), is not distinguishable from the
]3resent. There, a packer claimed to retain goods, not only for
the price of packing them, but for a sum of 500/. lent to the
bankrupt on his note ; and Lord Hardwicke determined that he
had such a right, on the ground of mutual credits, to which, he
gives a very extensive effect, and says that the clause relative
to them has always received a very liberal construction.

This doctrine, if it were supportable, would apply directly to
the present case, and Avould establish the defendant's right to
retain for his general balance.

But, in the case Ex parte Ockenden^ which came before Lord
Hardivicke about- six years after the former, he very much nar-
rows the extensive construction that he had before put on the
Avords "mutual credits," in the statute 5 G. 2, c. 30, s. 28,
-and determines in express terms, that a case like the present
does not fall within them.

That the cases Ex parte Deeze and Ex parte Ockenden are
accurately reported by Atkyns, we have the authority of Lord
Mansfield^ in G-reen v. Farmer (J), who confirms them by his
own notes.

It appears, therefore, that the final opinion of Lord Hard-
zvleke, after a very full consideration of the subject, would
exclude the present case from the protection of the statute as
a mutual credit, though he admits that the words "mutual
credits " have a larger effect than mutual debts, and that under
them many cross claims may be allowed in cases of bankruptcy,
which in common cases would be rejected.

I am not aware of any later decision upon tliis subject, until
the case of French and another, Assignees of Cox, v. Fenn, which
occurred in the year of 1783, and is very fully and correctly
reported in Cooke's Bankrupt Laws (c).

Cox, the bankrupt, was indebted to Fenn, and had entrusted
him with his share or interest in a string of pearls, to be sold by
Fenn, and the profit on such share to be paid to Cox. Fenn
sold the pearls after Cox's bankruptcy, and Cox's assignees
brought an action against Fenn for his share of the proiit. On
the. part of the defendant it was insisted that there was a

(a) 1 Atk. 228. (ft) 4 Burr. 2222. fc) 536, 7th ed.

1.070 U08K V. HAICT.

iiitiliiul i;rciiit, tliou^'li Mot ii iniitUiil ilrlit, ;il tin- tiiiu* of tlti*
l)iiiikiupU'y, and that mi.- (.ml. I n.it U- iltiii.iii.l.il without siiiU-
fyin^ thu other.

The (h)«tiiiio of Loul HarUu'ii'kf in AV purtr Urete WiW
relied on hy the counKel, iind seenieil to U* fully adopted by thu
court, without adverting to the <iualitication >vhi«h it received
from the eii.se fJr partf Orkemlen : and i4>ply>ng tlie diK'triiie to
the case iK-fore them, they <letenuined that Fenn was pn>teeted
fioni the claim of ('ox's assiijnees l»y the ilau.se o( unitual
credits.

Fniu'fi V. Finn h;us U-i-n followed hy a string of eaiLse.s, run-
ning throuj;h a periotl (»f more than thirty years, all professing;
to depeml upon it, some of them eonUiining t)ie fullest approUi-
tion of Ex parte Ihfze from tin? Itencli.

Whatever I mi<;ht think of tiie origimil decLsion, I could not
persuatle myself t») hreak in upon a clas.s of eases so lonj^ estab-
lished ; an<l if they could not U; supported witliout carrying
the doctrine found in Ex /xtrtt hirezr to its fidlest extent, s{>eak-
\\v^ for myself, I should U* ready to follow it, rather tiian over-
turn all that lias Ix^-eu .settled Upon this subject for such a
leni,fth of time.

I5ut it is tirst to be considered whether these ciises nuiy not
be supported by a construction of tlie statute wliieh will not go
to that extent, and will leave the opinion of Lord Hardwicke in
the case of Kx part*' Uikfrnhn untouched.

liy the iSth .section of ;'> (J. '1, e. 'M), it is enacte<l, "that
where it shall ajipear to tin- saitl (M)mmi.ssioners, or the major
part of them, that there hath Ix'en mufmil rrt<ilt, given by the
bankrupt and any other person, or mutual dfht» U-tween the
bankrupt and any other pt'i-si>n, at any tinu' liefore such |>ei*son
Ijecanie bankrupt, the .said commissioners, or the maj«>r |»art <»f
them, or the assignees of such bankrupt's estiite, shall state tlu'
account l>etween them, and one debt may Ih) .set against another;
and what shall ai)[)ear to be due on either side, on the iKilanee
of such account, and on setting such dehtx against one another,
and no more, shall be claimed on either side respectively. "

Something more is certainly meant here by mutual rn-ihtK
than the words mutual (h-bfn import; and yet, up(»n the linal
settlement, it is enacted merely that one tlcht shall Ix? set
against another. We think this shows that the legislature
meant such rnilifs onlv as must in their nature terminate in

ROSE V. HART. 1571

debts ; as where a debt is due from one party, and credit given
by him on tlie other hand for a sum of money payable at a
future day, and which will then become a debt ; or where there
is a debt on one side, and a delivery of property with directions
to turn it into money on the other : in such case the credit given
by the delivery of the property must in its nature terminate in a
debt the balance will be taken on the two debts, and the words
of the statute will in all respects be complied with; but where
there is a mere deposit of property, without any authority to
turn it into money, no debt can ever arise out of it, and there-
fore it is not a credit within the meaning of the statute.

This principle will support all the cases from French v. Fenn
to Olive. V. Smithy which is the last that has occurred.

In French v. Fenn there was a debt due from Cox to Fenn,
and Cox entrusted Fenn with his share in the pearls for sale^
which when sold would constitute a cross debt for the produce
from Fenn to Cox.

In Smith V. Hodson (a), the defendant had entrusted the
bankrupts with his acceptance, which he was liable to pay, and
which when paid would create a debt from the bankrupts to
him for the amount.

In Parker v. Carter^ Co. Bankrupt Laws, 548, and Olive v.
Smith, the bankrupts were indebted to the defendants, and the
bankrupts delivered policies of insurance to the defendants to
collect losses under them, which, when collected, would make
the defendants their debtors for the amount.

So, in all the other cases which have occurred upon this
subject, it will be found, that that which has been allowed as
a mutual credit has always been of such a nature as must
terminate in a cross debt.

To this extent we think the statute may be carried, but no
further; and we follow the final opinion of Lord Hardivicke, in
determining that the delivery of these cloths to the defendant,
for the purpose of being dressed, does not form an article of
mutual credit in his favour within the fair construction of the
clause relied on.

The fostea must therefore be delivered to the plaintiffs (5).

(a) 4 T. R. 211. son v. Burton, 2 B. & B. 89, particu-

(6) Dallas, J., was absent from ill- larly the judgment of Burroughs J. ;

ness, but concurred in this judgment, and, in p. 96 of that report, for

ex relatione Gibbs, C. J. See Samp- " 1818" read " 1817."

l'>72 llOSK V. llAltT.

This Is the Ifading casi- on tin* suf»J«'<'t "f f»m/m/i/ rroiUt. Thr prior drcl«-
ItiiiH \vi'r«-, as will Imvf tn-i-ti seen In tin- t«>xt, at varlam-)* with oiir anothrr;

mill ihi- ruh' e^Hluhllshi-tl In /»'«»*»• v. litrt liaM fver »lin'«" U-rii r ikiiImiI and

actcil upon. It wa.s ilftt-nnlnod after niiieh conHtderatlon, for Hiirroiiich, J..
states in Sainpnon v. HurtoH, 'i It. &. B. Ml), that the judi;(>M luul iirveral incei-
in:;s upon it.

Till- ilnrtrlne of s«-t-<iir In Itankniptey Is shown by .Mr. ('hrUtian t4) have
e.\Ute«l from a very early iM'rlml, eertalnly Ix-fort* ^t. 4 i .*» Anne, c. 17, In
which it llrnt n-eeived the expresj* sani-tlon of tlir Irtfl-.laturr. See I (h. 4y9;
.l/i<i»i. 1 Mo<l. '*\Tt\ i'hnpmnn v. l)<rrt<>j, 'i Veni. 117; [and the note to the
(iitruftt linlil Mininij, dr., Co. v. Sutton. Wi \.. J. y H. 4'.> ) The piillry of
allowint; n Hrt-olT hetwern moneys diif to and from tin* Itanknipt's rMtate, U
prrelsely tiie same as that In which the law relative to »l>>i'iuigf in tniHsitu
originated. It Is to prevent one man's debts from iMdntc l**hl with another
man's money, which would take plaee If a man, lM>lnK at once the debtor and
creditor of tlif linnkrupt. wm- foree«l to /xiy the whole of hiM drbl t«> the
estate, and to rt-rriir only a dl\idcnd.

The enactment In the statutt' of .\nne wa^ fo||owe«l by a similar one In tin-
temporary act of 5 (i. 1, c. II : then with improvements by ."> (i 'i, e. :io, h. 2m
N'oiit* of these acts, however, went further than to allow a set-ofT u|>on the
a<'«"ounts existinj; itt ihf limr of thr tu^nkrui^rif. The 4«» (i ;i. e. l."l»». it 3, went
further, and exteiuh-tl the rlirht of lU't-oir to cases where the erwllt was jflven
within two months of the date of the ritnimlsnUtn, pnivldetl the (MrriMMi icIvInK
It had not notice of a prior act of Imnkniptey, or tliat the lianknipt wa* In-
solvent, or had stoppeil payment. It was fouml. however, that, even with
this extension, cases of ureal linrdshlp o«'curretl. S«*c KintUr v. Iiutt'rtr<>rlh,
r> M. vt ('. 42. [.Vfterwurd-* came the •'. (Jeo. 4, i-. l«, s. M, but the enactment
wliirli continued to tfovern this Itranch of the law until the paMsIni; of the
Hiuikruptcy .Vet, lst;'.», wa.s contained in I*.' A. i:» Vict. c. KX;, s 171, which
provlih'd ] —

" That where there has bfrn mutual rrrdit given by the luinkrupt and any
other person, or where there are mutual debts l)ctweon the banknipt and any
other persons, the court shall state the account iK-twcen them, anti «me debt
or demand n>ay Ik* set a:;ninst another, nntirithjit'ttnlinij <tny prior art of hank'
rnptrij mmtnittfil />;/ mnh Imnkruftt b«'fore the cre«llt ;;iven to, or the <hd)t con-
tracted l)y him; and what shall a|>pear <lue on either side on the balance of
sucli account, and no more, shall Im- claime«l or paid on either shie res|MT-
tively; and every debt or deujand hereby niade proveable against the estate
of the bankrupt, may also Ik* set off In manner aforesaid against such estate,
provkU'd that the person clalmlnjo; the iH-nefU of such set-off had not. xehen
cieilit icits ijivfu, notice of an art of hnnkruptctj, by such banknipt committed."
This section [was] a re-enactment of s. .50 of the r, (}. 4. c. 16 (the wi»rd
" court " beln;ir siibstituteil for the word "commissioners"), and the caitea
therefore upon the earlier act still continued to be authorities as to the con-
struction of the [later.

This section was in its turn repealed, and s. ,^0 of the Bankniptcy Act. is«;9,
sul)stituted for it. which latter section is now replaced by s. 3.S of the Bank-
ruptcy Act. 1883. 46 & 47 Vict. c. 52. the enactment now in force. The
words, however, are practically identical with those of the late Act. They
are as follows : —

*• Whore there have been mutual credits, mutual debts, or other mutual

ROSE V. HAIIT. 1573

dealings between a debtor against whom a receiving order sliall be made under
this Act and any other person proving or claiming to prove a debt under such
receiving order, an account sliall be taken of wliat is due from tlie one party .
to tlie other in respect of sucli mutual dealings, and the sum due from the
one party shall be set ofl' 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
respectively ; but a person shall not be entitled under this section to claim
the benefit of any set-ofl:' 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 com-
mitted by the debtor, and available against him." With the addition of the
words " mutual dealings," which were first introduced in the Act of 1869, and
the eflTect of which will be considered hereafter, this section, like its prede-
cessor, is substantially a re-enactment of the previous acts, as interpreted by
judicial decisions, and the cases, therefore, upon questions of mutual credit
under the earlier acts continue for the most part to be authorities upon the
present law. Though the words of the earlier Acts, "notwithstanding any
prior act of bankruptcy," are now omitted, an implication equivalent to
them arises from the rest of the section; see Elliott v. Turquund, 7 App. Ca.
at p. 86.]

Notice of the act of bankruptcy is now therefore, [as formerly,] the dividing
point at which the right of set-off terminates ; and consequently it has been
held, that a person who after bankers had actually stopped payment, indus-
triously collected their notes for the express purpose of setting them ott"
against a debt due from himself to the firm, should be allowed to do so, as he
had no notice of any act of bankruptcy actually committed by either of the
partners, Dickson v. Cass, 1 B. & Ad. 343, accord. Hatckinsv. Whitten, 10 B. &
C. 217. But it was held in the same case that he could not set off notes which
he had taken after he knew that some of the partners had committed acts of
bankruptcy; and see Ex parte Snnioball, L. R. 7 Ch. 534, 41 L. J. Bkcy. 49, as
to what circumstances will be taken to amount to notice.

It will be observed that the language of the present section is " notice of
an act of bankruptcy, available against him." Having regard to the provis-
ions of s. 6, these words would appear to limit the necessity for notice to
acts of bankruptcy occurring within three months of the presentation of the
petition. Such was the construction piit on the similar expression in ss. 94
and 95 of the late act, Ex parte Gilbey, 8 Ch. D. 248.]

Under the 12 & 13 Vict. c. 106, s. 171, there [were,] it will be observed, two
classes of cases in which the right of set-off [was] expressly given. 1. Where
there were mutual debts. 2. Where there had been mutual ci'edits. It is
upon the second of the above two classes that Rose v. Hart, [has been] a
leading authority. It [has been] cited when the question [has] occurred, —
does a particular state of dealings amount to a mutual credit between the
bankrupt, and some person claiming to set ofl" a cross demand against his
estate?

The first case bearing upon this question was Ex parte Prescott, 1 Atk. 230,
where the claimant owed the bankrupt a debt, payable in futuro, and the
bankrupt owed him one payable in prcesenti. Lord Hardwicke said, that this
constituted, not indeed a mutual debt, but a mutual credit. The cases soon
multiplied; and it was settled, that, in order to render credits mutual, within
the meaning of the bankrupt laws, it was not necessary that the bankrupt
and the creditor should particularly intend to trust each other, or to raise
cross demands. This was settled in Hankey v. Smith, 3 T. R. 507, n., where

ir)7t Kosic V. HAirr.

A.'s ai-ci'ptnncp got into B.'s Imiids, niul H. Ixmulit ^oods of A., \\\u> illil imt
know timt the bill wuh in H.'s iiaiuls.

After Lord lIurilwickL' hud, in AV pnrtf Frfurott, pointed out tlie dlntinclloii
between mutual debts anil mutual crfdits, the latter tenn wan fre<|uently relied
on, and there wax a struf^fjle to bring within its nieanint; many deniandn
which could not possibly have raiiffed within the former term it has In-en
seen from the discussion In the text, that in AV y»/r^• l>>'fZf. 1 Alk. 2?m, these
words received a very large construction; which was narrowed by l-.x jmrtf
Ockftidfu, 1 Atk. 2:U ; and that these cases were followed by a string of de-
cisions, beginning with Friiuh v. Ffun, Co. IJ. L., 7th ed. .VU"., a.i». 17>:i, and
extending over a period of more than thirty years, during whhh Fr'-mh v.
Fenn was the leading case upon this subject.

At last, In 1818, Jionf V. Hart was decided, and the rule established which
[has ever since prevailed], namely, " that mittiial creditx, within the meaning;
of the bankrupt laws, are rreditu irhirh must in thfir nature tmninnt'- in di'fds."
And this it is subndtted means, not, as has been contended in some cases,
credits which must, t-r necfssitatf rei, terminate in «lebts, l)ut credits which
have a natural tendency to terminate In «lebts, not in claims ditTering in nature
from a ilcbt. 'I'luis it was settletl in Smith v. Ilodsnn, \ Y . U. 211, that an
accommodation acc»'ptance is a rrt-dit. given by the acceptor to the party ac-
commodated ; and yet It Is not ri-rtnin to end in a ilebt. for the party accom-
modated ought to provide for the bill at maturity, and. if he do, tliere will l>c
no tlebt; [ Yalrs v. Ilopjte. t> ('. B. .-)4l ].

The cases between Fr>nrh v. Frnn and Itusf v. Ilnrt were all recognlMiHl by
the latter ca.se. and stated by the Lord Chief Justice to Im* reconclleable with,
and suj)ported by, his «leclslon. It will [therefore) be necessary to review
them bi'fore proceetling U^ the cases subseipient to llnsr v. Hart. The case
of French v. Finn itself is well abridged by the LonI Chief .lusth-e In the
text, and is well epitomised by the same learned judge, while at the l»ar. In
Ills argument in Smith v. Uodaon, ante, p. l;W, so that It Is unnecessary to
repeat the facts here at full length. It Is a very remarkable case, and was
long the leading decision on this subject; and, excepting the overrule«l cn.se
of Fx parte Deeze, anti the later «leclslon of Kasum v. f'atn, post, goes |>er-
haps further than any case upon this branch of the bankrupt laws. Smith v.
Hodson, 4 T. K 211, is reported at length In this volume. Ix-ing the loadiuf^
ca.se upon another e(|ually important jjolut. .\s far as It bears on the present
subject, it was expressly ap|)roved of l)y the court in Ilulinf v. Mut/ijhstnn, 'S
M. & \V. ;;(».

In Atkinson v. Flliott, I T. It. ;57H, the defenilant sold the bankrupt a parcel
of tars for 430/. at six months' credit, for which the banknipt accepted a bill,
and afterwards bought another parcel for 230/. on the same tenns. On the
first bill becoming due, he gave the defendant two bills on third parties,
making together (iOO/., and the defendant undertook on their l)elng paid, to
return 170/., it not being Intended to ilo more than take up the bill ac<-epted
for tlio price of the first jiarcel. In an action for the 170/.. the defendant
was allowed to set ofThis demand for the second parcel of gootls.

In Fx parte Boyle, re Shepherd, l.i Aug., 1803, Co. Bank. L.. 8th ed.. .'>71,
Lord Cork, to accommodate Shepherd, who was his solicitor, drew four
notes, two payable to Nlbbs or order, and two to Shepherd or order, making,
in the whole, 981/. Os. Sd. Lord Cork, having been forced to take up one of
them before the bankruptcy, and two afterwards, the (piestlon was. whether
these payments could be set off against a debt ilue from his lordship to Shep-

ROSE Y. HART. 1575

herd's estate. The Lord Chancellor at first thought that the account must
be taken as it stood at the time of the bankruptcy, and that the debt could
not be set ofl" against the mere liability on which no payment was made till
after the bankruptcy : but afterwards his lordship said he had considered the
case, and was of opinion, that the petitioner was entitled to set off the debt
against the payments after the bankruptcy-

That an accommodation acceptance, not paid till after the bankruptcy by
the acceptor, could be set off against the estate of the party accommodated,
was also decided in Ex parte Wagstaff, 13 Ves. Qb ; and these cases were
cited with approbation by Parke, B., in Hulme v. Muygleston, 3 M. & W. 30.

In Sheldon v. nothschild, 8 Taunt. 156 ; 2 Moore, 43 ; Otte drew a bill on
B. & Co., for iOOl., which they accepted without value. They afterwards
owed Otte 236Z. lis. 3d., and drew on him for 163Z. 8s. dd., the balance. This
bill they sold to the defendant, and afterwards became bankrupts, the 400?.
bill remaining in Otte's hands unpaid. Otte accepted without notice of the
bankruptcy, and paid the UV31. 8s. 9d. to the defendant, on which, the assign-
ees of B. & Co. brought an action as for money had and received ; but the
court held that there was a mutual credit i)etween the bankrupt and Otte,
and that, inasmuch as he could have set off his demand on the estate in any
action brought against him, the defendant, whom he had iudemnifled, and
who stood in his place, might do so also.

The next decision is the principal one of Rose v. Hart, which is reported
in the same volume with Sheldon v. Rothschild, the Lord C. J. Gibbs, Avho
had argued, when at the bar, in Smith v. Hodson, delivering the judgment,
which was one of the last pronounced l)y that distinguished judge. This
case settled the law upon the subject ; the subsequent decisions turning all of
them on the applicability of the rule, promulgated in Rose v. Hart, to partic-
ular states of fact.

A very remarkable case on this part of the bankrupt law in Easum v. Cato,
5 B. & A. 861, in which the doctrine of mutual credit was perhaps carried
further than in anj'' case subsequent to Rose v. Hart. In Easum v. Cato, J. S.,
being desirous of making a sliipment at his own risk, but not in his own
name, represented to the merchants through whom the shipment was to be
made, that the goods were A.'s; and procured A. to write to them to insure,
and make advances on the goods, which was done. J. S. having become a
bankrupt, it was held, that A. might recover the proceeds of the goods, and
set off a debt due to himself from J. S. in an action for them by the assign-
ees ; vide tamen Young v. Bank of Bengal, 1 Deacon, 622 ; Moore's Priv. C.
Ca. 150, a case the decision of which it is perhaps not easy to reconcile with
Easum v. Cato.

In that case P. & Co. obtained advances from the Bank of Bengal, deposit-
ing negotiable securities and giving promissory notes, with an authority to
the Bank to sell the securities at the end of three months for their reiml)urse-
ment rendering back any surplus to P. & Co., who undertook to make up the
deficiency, if an}\ P. & Co. became bankrupts, and the Bank having sold
the securities and realised a surplus, the question arose whether under clauses
precisely similar to those of the English Bankrupt Act there could be a set-
ofi' between it and another independent debt due from P. & Co. to the Bank.
The Supreme Court of Bengal (dissentiente the Chief Justice) held that there
might; but the decision was reversed in the Privy Council, and the judgment
does not purport to be founded on the special promise to repay the surplus,
but on the uncertainty at the time of the bankruptcy whether there would

IhH) KOSK V. IIAUT.

ever be u (Ifl)t capubli- of b»'iiiji si-t olf urisiuj; from the lude uf ''•■• '•-
curitlfH.

Youufj V. Jidtt/c of Hfnijdl wiis inucli comiiu'iitcU on In Alaager v. l urri> . i_'
M. & W. ".">1. In that c-ust; liaron I'arki- plai-os tin* tU-cUion on two f^ruundtt :
1st, tliat thcrt- was no mutual crinlit, as the M'rurlti«-< Iwul l>«<«>n «li*|Hiiilt<*(l
with till' bank f'nr a ixirtinihtr /iKrpnue. 2nd, that It was tin- duty of the
ussi<;ni't's to rtMlfi-m the paper Immoliatcly, ami if tlu-y IkkI dom' so, no di-bt
would liavf iK'cn dm- in rispt-ct of tin* loan.

[In Xiiomji V. Chitrtfrfil Hank of India, L. H. ;i ('. 1". 444. tin- ptaintilTs who
wt-rr in tin* habit of ilrnw-in<; bills on partit-s in Imiin, and whose pntrticc
it was to t'ntrust thi's»' bills to the defendants for the purpose of eolleetion,
had executed a doetl of inspe«-torship uniU-r the Hankruptey Art. ]xC,\. At
the date of the deed, the plaintitl's were indet)ted to the defendant.s in a Huin
of H:(:t.'>/. In an action bmu^iit >iy tiie plidntltts to recover a sum of money,
th«' proceeds of l)llls entrusted to tlie defemiants for collecticm, of which a
small portion only liad l)cen received by them itefore the <lat<' of tlie dee<l,
it was held, distini;»dshinir Viniufj v. Hank of lit-nijiil, tliat ina.smuch as the
autiiority to collect tlie Idiis hail not been revoked at the time of the execu-
tion «)f the dee<l, there was a mutual credit under section 171 of the late Act,
.so as to entitle the defendant.s to het off the «uni tlue to them against the
plaintitl's' claim for the proceeds n-celved after, as well as for those received
before tlie ilate of the deed. There Is an error In the liea«l note of this «-a.se
in tile \.. K., as it is there stated tliat, at the date of the dee«l. the sum sued
for was a<'tually collected and in tlie liainls of the defendants, in which ca.se
no i|Ueslion of mutual rrnU( coiiUl have arisen ; see the report in IM L. T. N.
S. li-'iH, where tlie case is fully set out. See also Astlfij v. (iurnry, I,. \i. 4 ('.
I'. 714, where a similar (juestion was discussed in the Exclie<juer Chamber,
and Elliott v. Turnuaml, 7 App. C'a.s. 7'J, 51 L. J. V. C. 1, in the Privy Council. J

In Oroom v. WeM, 8 A. & E. 7'>K, an ajfreement to pay the banknipt for
goods sold prompt two months, or by acceptance, was held a claim against
which a debt due j'rotn the bankrupt niiiflit be set otV.

The nature and extent of the ndc laid down in Hosf v. Hart are well illus-
trated by the two cases of Hose v. Sim.i, 1 H. & .\d. .I'il, and (iihson v. Hell,
1 Biiii;. N. C. 74.S ; in tlie fonner of whi«'h it was held, that an a;;reement
to indorse a liill of exchantre did not create such a cre<lit as tlie statute
intends; in the latter, that an agreement to accept a bill did create such a
<'ivdit. These cases turned on the distinction Ix'tween an acceptancf, wlilch
creates a debt, and an imhirsement, which creates only a suretyship. See
Walliti V. Swinburne, 1 Exch. 2i»:'..

In Ilnlme v. Muijijleston, .{ .M. i<: W. :!ii, to an action for money had and
received to the use of the assijrnees of John Smitli, the dt-femlant pleaded
that before notice of the bnnkrnptrij, he indorsed a bill for Smitli's accommo-
dation, and tliscounted another for him, both of wliidi he was obliijed to take
up lifter tlie bankruptcy ; that brfnre tlie bankniptcy, Smith lent him a cheque,
the proceeds of which he received after the bankruptcy, whidi was the same
money now sued for, and against which he claimed to .set off the amount
of the dishonoured bills. The court held the plea goo<l. To the same effect is
Rtissell V. Bell, 8 M. & W. 277, whidi is not quite so strong a case a.'^ Ilulme v.
Mufjfjlettton, the credits being accommodation acceptances, as in Smith v. Hod-
son, instead of indorsements, as in Hnhne v. Mnfjglestnn.

In Biri(ilestone v. Timmis, 1 C. B. 389. the Court of C. P. held that a demand
^vhich originated before tlat, and before notice of any act of bankruptcy,

ROSE V. HART. 1577

could be set off against a claim for monej' had and received to the use of
the assignees, arising out of a credit given by the banlvrupt before fiat,
and before notice of any act of bankruptcy.

In Collins V. Jones, 10 B. & C. 777, it was laid down by Bayley, J., that
'•whoever takes a bill must be considered as giving credit to the acceptor; and
v'hoecer takes a note, credit to the drawer." See Arbouin v. Tritton, Holt, 608;
Edmeads v. Newman, 1 B. «& C. 418. In Belcher v. Lloyd, 10 Bing. 316, a
distinction was engrafted on the above rule ; namely, that the holder of the
bill or note, to be within the statute, must not be a mere agent holding it for
the benefit of a third person. In that case, Maberly's assiguees sued Lloyd &
Co., acceptors of a bill for 1000/. drawn by the Commercial Banking Co., and
indorsed to Maberly. Wlien Maberly became bankrupt, Lloyd & Co. had in
their hands a bill for 760/., drawn by a firm in which Maberly was a partner,
accepted by a firm in which lie also was a partner, and indorsed bj' the Com-
mercial Banking Co. This bill became due on the 6th of January, the day on
which Maberly stopped payment, whereupon Lloyd and Co. protested it ; and
having in their hands sufficient assets of the Commercial Banking Co. to
discharge it, debited the company with the amount, and sent them the
protested bill, with a receipt for it. The Commercial Banking Co. sent back
the bill, requesting Lloyd & Co. to set off its amount against their own
acceptance for 1000/. ; and the question was, whether they had a right to do
so. The court held not. "Can it be said," asked Mr. J. Bosanquet, "that
the defendants are creditors of Maberly, and hold the bill on their own
account? If not, and if thej^ hold the bill as mere trustees for the Scotch
house, as such trustees they are not entitled to set it off against a demand
made on themselves in their own right."

Similar to this decision was Lackington v. Combes, 6 Bing. N. C. 71, Avhere
to an action by the assignees for the price of a phaeton, which had been sold
by the bankrupt to the defendant, on ready-monej^ terms, the latter endeav-
oured to set off a dishonoured acceptance of the bankrupt, in whicli he had no
real interest, but which he had obtained from the holder for that purpose.
It was held that he was not at liberty to do so. See Fair v. M'lver, 16 East
130; Foster v. Wilson, 12 M. & W. 191; ^London, Bombay, &c., Bank v. Nar-
ra/imy, L. R. 15 Eq. 93].

That the demands, in respect of Avhich a set-off is claimed, must be in the
same right, is established by several cases. See West v. Pryce, 2 Bing. 455;
Ex parte Whitehead, 1 G. & J. 39; Wood v. Smith, 4 M. & W. 525; Stainforth
V. Fellows, 1 Marsh 184; [New Qiiebrada Co. v. Carr, L. E. 4 C. P. 651].
Thus in Groom v. Mealey, 2 Bing. N. C. 138, where to an action for money
had and received to the use of the assignees, the defendant pleaded a set-off
of money due to him from the bankrupt, it was held ill on demurrer. See
also Yates v. Sherrinyton, 11 M. & W. 42, where to an action by the assignees
on a note not payable to order given to the bankrupt's wife clum sola (sup-
posing the action to be maintainable, which it was afterwards holden by the
Exchequer Chamber not to be), it was held that a debt due from the bank-
rupt in his own right could not be set off. S. C. in error, 12 M. & W. 855 ;
[and see Bailey v. Finch, L. R. 7 Q. B. 34; 41 L. J. Q. B. 83; Sankey Brook
Coal Co. V. Marsh, L. R. 6 Ex. 185 ; 40 L. J. Ex. 125 ; Bailey v. Johnson, L. R.
7 Ex. 263; 40 L. J. Ex. 189; Ex parte Morier, 12 Ch. D. 491.

In Alloway v. Steere, 10 Q. B. D. 22, 52 L. J. Q. B. 38, where a bankrupt's-
trustee had not disclaimed a tenancy, and so became liable as assignee on the
covenants in the lease, and at its expiration had claimed, as he was entitled.

loTH ROSE V. IIAKT.

to do, the value of tillages from tlic limdlunl, It was licld under the late act
that the latter could not set oil' the lunount of rent due at the chite of the
biiiikrupfcy from tlie bankrupt]

'I'lie pi'( idiiir ri};lit of sft-otf fouiKlrd on tlif mutual criMlli clause of the
l)!iiikru|)t acts, exists in case of a l>!iMkruptcy oidy as lu'twciu the [truHtec]
of the baukiiipt and the th-htor to tin- cstjitc It cannot l>c made avatlahle in
an action broniriit l)y tiic i)ankrnpt as tnistrc for a person to wliom lie Iuih
assigned Ids (Mjintat)ic intcn-st Itcfurc tlic t>ankru|itcy, lioijil v. .Miimjlrn, n; M.
& W. 337.

[The provisions, however, of tiie Judicature Act, 187:1 (.'{«; & '-17 Vict. c. GG),
and Judicature Act, lrt75 (38 & 39 Vict. c. 77), <). XIX. r. 3. ns to the rljrht of
set-(jfl'havc had the otl'ect of rendering set-off In actUms mmh wider than It
was fonncrly in bankruptcy. See O. XIX. r. 3]

It Is also necessary that the mutual credit should exist at (hf timr of thr
hdnkruptrij, [Dirk'nun v. KnntK, (! T. U. .'»7, ] /<«»'/'/ v. .Munijli-it, iihi nnp. [anil see
per Martin, H., linUnj v. Ji>hintf)n, L. K. t". Kx. I'si; siiltject however to an
exception in the case of secret acts of bankruptcy, for though the section of
the present act, like that of the fonner, does not dellne the time for taking
the account, it may at all events be taki'U up to the time when the party
claiming the benefit of the clause ha.s noth-e of an act of lmnkrupt<-y, EllioU
V. '/'nniiitind, 7 .\pp. ('as. 7'.i, 'il L. J. V. C. 1. On the other hand, except in
the ca.se of a secret act of bankruptcy, the line as to set-oil* nnisl be drawn
at the commencement of the bankruptcy: and, therefore, a cn-illtor of the
bankruiit cannot set off his liability on a bill accepted by him w Ith notice of
the bankruptcy against his own claiuj on the bankrupt's estate : /« re (tilhupie.
Ex i>'irfr liriil, 14 {I \\. I). ;m;3, '2\ \.. .1. t^. H. 'M2. See al.so In rf .1/i7<im Tram-
icai/s, 2."> Ch. 1). .'),s7, '>3 L. .1. Ch. liMts. It was fonnerly held that) no set-off
by way of niutmil credit [c<udd] be pleaded to a claim by the a.sslgnee8 of a
bankrupt resulting from the ndsappllcatlon by tlie (lefrndi'iit of numey placed
In his hands by the bankrupt for the purpose of meeting his acccptance.H,
such claim having been held to be for unli<pddated damages, H^ll v. Carey, 8
C. B. H,S7; inn V. ■Smj7/i, 12 M. .i^ W. CIS. [See now, however. Unoth v.
HHtrhinsint, L. U. 1,") E<|. ."^O. abstnicted infra. A claim In respect of a loss on
a policy of insurance ndglit even under the former statutes, lH'f«)re adjust-
ment, have been set up as a nmtual credit, although It Is not a debt within
the statutes of set-otl". Ihrktrith v. Itiillrn, K K. & H. •W3; sec also Knsti-r v.
Kaxitn, 2 M. & S. 112; Parkir v. liraslfij, il>. 423; and Lff v. linllen, 8 E. & B.
693, note.]

It must be borne In mind, that any demand proveable under the flat might,
by the express words of the [G Geo. 4, c. IG. s. ,')i)], be set off. On the otlier
hand, a dcmanil could not be set off that would not have been proveable un-
der the flat. See Ahh„n v. //»V)ls, .-) Hing. N. C. .•.79. A. If. & C. dissolved
partnership, the tlrm owing II. .".1.S91/. I2.<., and .V. owing the Ann G.S17/. 9.i.
8(?.. it was agreed that \. should pay B. & C. the G.817/. 9.«». S</., and that B. &
C. should keep the stock and assets of the Arm. and shotdd p.ny II. : B. & C.
became bankrupts while 47,000?. remained still due to II. Held that A. conld
not set-off his liability to pay this sum in an action against him by the assign-
ees. " If," said Mr. J. Erskine, "in consequence of the bankruptcy he hail
paid the whole to II. he might have proved under the commission, and any debt
or demand proveable under the commission m.iy be set off where there has been
mutual credit. But, here, as there has been no payment, there is no debt or
demand, and the defendant has given no credit to the banknipts, nor is this

ROSE V. HART. 1579

OIK' of the contingent debts provided for by sect. 56, on -which the commis-
sioners are to put a value in order to proof. It is no debt at all, and as the
defendant may never be called on to pay it, it would be impossible to put a
value on it. — This is not a debt payable on a continyency, but a mere liability
which may or may not become a debt hereafter."

It will have been observed that the conclusion of the 171st section [of the
act of 1849] which section correspond [ed] as we have seen, with sect. 50 of
the 6 G. 4, c. 16, enacted [in similar terms] that every debt or demand made
proveable against the bankrupt's estate might be set oft'.

[The right of proof against the bankrupt's estate was successively ex-
tended so as to embrace various kinds of contingent liabilities by 6 Geo. 4,
c. 16, ss. 51 and 56; 12 & 13 Vict. c. 106, ss. 172 and 173; 24 & 25 Vict.
c. 134, ss. 153 and 154, and 32 & 33 Vict. c. 71, s. 31, all of which are now
repealed. The right of proof is now governed by sect. 37 of the Bank-
ruptcy Act, 1883. which is so wide in its terms as to include every possible
liability arising out of a contract. See Ex parte Llynvi Coal Co., L. R. 7 Ch.
28; Ex parte Peacock, L. R. 8 Ch. 682; Ex parte Waters, L. R. 8 Ch. 562; Ex
parte Blakeraore, 5 Ch. D. 372; Ex parte BoUand, re Winter, 8 Ch. D. 225, 47
L. J. Bkcy. 52, upon the scope and interpretation of the similar section of the
act of 1869.

It remains to consider what efl'ect, if any, has been produced by the intro-
duction of the words " mutual dealings " in the present and last previous en-
actments. In Booth V. Hutchinson, L. R. 15 Eq. 30, which was the case of a
deed incorporating the provisions of the Bankruptcy Act, 1869, it was held
that a claim for damages for breach of covenant which were unascertained
at the date of the deed might be set oft" against the claim for rent due and ac-
cruing due to the insolvent estate up to the time of the distribution of tlie
estate under the deed.

In delivering judgment, Malins, V.-C, said, "If the case were under the
old law I should probably have concluded that there was no right of set-off,
but the old decisions rested on the construction which the courts had put
upon the words ' mutual ' and ' mutual credits.' .... The language of the
act of 1869 is altered from that of previous acts and made more compre-
hensive ; and I must therefore conclude that the right of set-off given by the
previous acts was considered to be too restricted, and was intended to be en-
larged." That such was the intention of the legislature is rendered more
probable by the very wide terms of the sections of the present and former
enactments (37 & 31) as to proof of debts. For although those sections do
not, like sect. 171 of the act of 1849, provide in express terms that every
proveable demand may be set off, yet since every liability arising out of con-
tract is now capable of proof, and is consequently barred by the bankrupt's
order of discharge (see sect. 30) , to hold that the right of set-off is narrower
than the right of proof would bring about the anomalous result, to meet which
the doctrine of mutual credit was introduced (see ante, p. 333). For the
creditor would be precluded from setting ofi" claims whicli he would never-
theless be debarred from asserting by action, and would therefore be obliged,
while paying his own debt in full, to receive back from the bankrupt's estate
a dividend only in respect of such liabilities of the bankrupt towards him-
self ; but see Ex parte Price, In re Lankester, L. R. 10 Ch. 648, a case de-
cided upon the peculiar nature of the valuation put upon the claim of a
policy-holder in the winding up of an insurance company. The policy-holder
liad himself gone into liquidation, being indebted to the insurance company.

1580 uosE V. hai:t.

On proof hy tin- liquidators of tlu' ronipany n(;alM<4t thf estate of the debtor.
It was lifkl that th<> trustee could not set off tlie estliuatetl value wlileh had
boeu put upon the policy. In h'x part*- Ihirnrii, in re I-tret-sf, U. H. 9 fh. 21*3,
which was decided upon the late act, Lord ScllHinie C, fcuartlH hlmMvlf from
(■xprcssluj; an opinion upon the etTect of the additional wonU In that cajtr,
Harnett & Co. had had business transactions with a trader who iMM-nuie bank*
rupt, and nt the time of the bankruptcy the bankrupt oweil Harnett & Co.
:'>.i>10/.. and Harnett <& Co. owed th<- bankrupt s.s/., In respect of which sum he
had a lien u|>on i;oo<ls of Harmtt v^ Co. In his possession. Una claim by the
trustee in bankruptcy that Harnett A Ci». should pay the hhI. in full, ami
shoid<l prove for the whole tuni of :<,i)I))/. ai;alnst the banKnipt's estate. It
was held that the latter were entitled to have the sum of n>*l. set nff against
their claim, so as to free the kimhIh from the lien, ami to pn>vt< for the bal-
ance ai^alnst the bankrupt's estate.

llowevir, In h.r purff JlnHnttil, rt- M'iiitrr, H Ch. I). 225. 47 I. .1 Hkcy .'>2.
HaciMi. C .F., put a siunewhat narrower construction on the act. In that ca.He,
a contractor failed to carry out his contract. an<l had i;one Into Ihpdilatlon.
'riurc was a clause In the aifreemeiit empowerln:; the employers to unr the
plant left by the contractor on the prendses In case of his default, and a
portion had accordlnirly been used up l>y a contractor «luly substltutoti under
the contract. The balance renuilnini; unuseil was sold by aun-ement, and the
.sum realised was claimed by the trustees. The employers siumht to Hct off
the dama;;es sustained by them throiitfh the breach of contract, contending
that thi-rc had been mutual dealini;s between them and the delttor. In respect
of which they wen- entitled to the set-otf. This contention the learned judjje
overruled, lielni; of opiidon that Inasmuch as the employers aci|ulrt*4l no
property I'l the plant, but only a rluht to use It in a certain event, there had
not under the circumstances been a dealin;: in respect of the sum realised.
In /'tilt V. ./otif-M, H 1^. H. 1). 147. ."il I.. .1. li H. 12H, the Court of Appeal
followetl Jinnih v. I/nlchin^im In holdlni; the clause applicable to a claim for
uidl<|Uidated ilamaires, and held that such a claim inluht Ix* set ofl* In a coni-
luou law action l)roui;ht by a tnistee In ll<|Ul<lation In Jurk v. h'ipfihuj. *J
il H. I>. Iia; .*>l L. .1. g. H. 4t'.:t, It was held that a claim for fraudulent
misrepresentation on the sale «>f a chatt«d by a banknipt may be .set off against
a claim l»y the tnistee for the price.

The s«'t-otr under the .s«'cilon Is not optional but i-onipidsory. and It would
seem that the existence of security do«-s not atfect Its operation. AV /utrlr
JiiirnPtt, supra; ami see .VcA7;ih»»» v. Arm.strnuij, 2 .\pp. Cas. .'>.11.

Sect. 10 of the Judicature .Vet. l«7r>. Imports the nde of set-otf. with the
other rules in force for the time beinc under the law of hankniptcy as to
debts and liabilities proveable. into the a*lminlstratlon by the court of the
assets of persons whose estatt- is iusutliclent for the payment of their debt.s,
and into the winiliui; up of companies. See Mt-rseij Steel, Jtc. <.'o. v. Saylor,
;> .\pp. Ca. 4:u.]

The history of this head of tlie bankrui»t laws [<lown to that date] Is so
clearly, and at the same time brietly, sketched by Lord Chief .lustice Tindal,
in his jud<;inent in the case of Gihson v. lifll, 1 Hinjj. X. C. 753. that thi.s note
cannot be better c(,nclude«l than l>y extractiu}; it.

" The principle," said his lordship. •• which the banknipt laws seem to h.ive
had in view, from the earliest times to the last provisi<ms made therein, is
this, that where two persons have dealt with each other on mutual credit,
and one of them becomes bankrupt, the accouut shall l>e settled between

HOSE V. HART. 1581

them, and the balance only payable on either side. That this was the practice
of the commissioners of bankrupt, long before any statutory provision on
the subject, appears clear from the two earliest decided cases, Anonymous,
1 Mod. 215, before Lord Chief Justice North, and Chapman v. Derby, 2 Vern.
117. The first statute which made any express provision on the subject was
the expired statute 4 & 5 Anne, c. 17. By that statute it was enacted in the
eleventh section, 'that whei'e there had been mutual credit given between
the bankrupt and any debtor, and the accounts are open and unbalanced, it
shall be lawful for the commissioners, or assignees, to adjust the account;
and the debtor shall not be compelled to pay more than shall appear to be due
on such balance.' This provision of the expired statute of Anne is re-enacted
in the twenty-eighth section of 5 G. 2, c. 30, with some variation in the
expression, that section enacting, that ' the commissioners, or assignees,
shall state the account between them, and one debt may be set against
another, and Avhat shall happen to be due on either side, on the balance of
such accounts, and on setting such debts against one another, and no more,
shall be claimed or paid on either side respectively.' This statute continued
in force until the 46th G. 3, c. 135, -s. 3, which provides, that where thei'e hath
been mutual credit given, or mutual debts between the bankrupt and any
other person, ' one debt or demand may be set against the other, notwith-
standing any secret act of bankruptcy before committed.' The same language
is continued in the last statute, 6 G. 4, c. 16. So that from the earliest prac-
tice to the latest provision by statute, the object seems to have been, that
the account should be stated, as between merchant and merchant; and that
whatever would be in ordinary practice a pecuniary item in such account,
should be the subject of set-off."

Set-off is the setting up a demand by the defendant to coun-
ter-balance that of the plaintiff in whole or in part ; 2 Bouv. Diet.
615 ; Avery v. Brown, 31 Conn. 398, 401 ; Kingman v. Draper,
14 Bradw. 577. It is often called a cross-action rather than a
defence ; Mitchell v. McLean, 7 Fla. 329 ; Everson v. Fry, 72
Penn. St. 326 ; Curran v. Curran, 40 Ind. 473 ; Lewis v. Denton,
13 Iowa 441. According- to the common law " mutual debts
were cUstinct and inextinguishable except by actual payment
or release ; " Commonwealth v. Clarkson, 1 Rawle 291.
Although it is stated that at common law " the right of set-off
is limited to cases of mutual connected debts, and does not
extend to debts, which are unconnected with each other;"
Hurlbert v. Pacific Ins. Co., 2 Sumn. 471, 477.

The first statute authorizing set-off in England was that of
2 Geo. 2 Ch. 22, made perpetual by that of 8 Geo. 2 Ch. 4.
Similar statutes have been j^assed in all or nearly all of the
states of the Union. The decisions of the courts cannot be
always harmonized, as their purpose is frequently to interpret
the statutes. There are main points, however, upon which

158 J UOSK V. IIAKT.

there is little or no disa'^ruement. An «*iuly New Jersey statute
on set-off is referred to in The C. H. Sanford, '2'2 Fed. Kep. 863.

How far the claim must exist. — • It must Ih' due and payahK' at
the time of the eomnu luement of the phiintifTs aetion ; IslKTg
V. Howden, S Kxeh. Hoii ; Martin v. Kun/.mnlhr, 37 N. Y. 3W ;
Henry r. Buth-r, -Vl Conn. 140 ; Robinson v. S.itTord, ')7 Me. 1»I3.
An unmatured (h-ht cannot he set off; Whitaker r. Turnbull,
18 N. J. Law 172. Sif Iluusti.n v. FeUows, '21 Vt. O.'U ;
Tessier v. Kn<,dehart, 18 .Nrh. l»;7 ; (innnis v. ( lutT. Ill I'.nn.
St. r>\-2: M<La(hlin r I5ntt, K).-, N. Y. :'.1>1 ; Fllis r. ( mhran,
117 111. loM; Wood r. Hrush, 12 ("al. lil'l ; Patterson r. Wri^dit,
()4 Wis. 2s\\. The same rule applies to a eounter-idaim;
Kramer r. Fleetrie Lii,'ht Co., !»"> N. C. -77. And to a demaml
in exility; Keppy r. Keppy, 4»J .Mo.^.')71. It luus been held that
a present claim apiinst an insolvent estate may Ihj set off when
ihf debt ajjainst which the set-off is claimed matured after
tleceased in.solvent's death; Skiles v. Ibiuston, 110 Penn. St.
204. But see " Demands aj,minst executoi-sand administratoi-s,"
infra, (ienerally, in the alwenee of statute, the claim which is
tlu' subject «>f set-oiT nuist i^row out of the transaction. See
Hnliock r. Horn, 44 Ohio St.4'J0; Heecher r. Baldwin, />/i Conn.
4l!t: l-Mi.l '. i'.urchard, 1:J0 .Ma.ss. 424.

Torts and replevin. — Damai^es from torts cannot l>e set f)ff
at law or in etpiity ; Shelly r. Vanarsdoll, 2*} Ind. 043; Har-
ris r. Uivers, 53 Id. 21t); Hall's Appeal, 40 IVnn. St. 409;
Matthews r. Lindsay, 20 Fla. J)02, 1)77 ; Vancleave v. Beach,
110 Ind. 201>. ( )ne trespass cannot Ih,* set off in bar of another ;
Ilari^reavcs r. Kind)erly, 20 W. \'a. 787, 8o0 ; Shelly v. Vanars-
doll, siii>ri:. Damajifes sustained by annoying suits, malicious
])roseculions, slander of title, injury to one's credit occasioned
b}' such procccdiiiL,'s, thoui^h lelatin^ to the subject-matter of
plaintiff's suit cannot be set off; Matthews r. Lindsay, «*//>n/.
A demand arising from tort, cannot be set off against one aris-
ing out of contract ; Indianai)olis R. R. Co. v. Ballard, 22 Ind.
448. See Hall v. Penny, 13 Fla. G21 ; Hudson v. Nute, 4.') \'t.
66 ; Street v. Br^an, 65 No. Car. 619. But damages may be
set off in certain cases where the statutes so provide or the set-
off is, perhaps, claimed as a remedy after the nature of recoui>-
ment; Campbells. Fox, 11 Iowa 318; Bulkeley v. Welch, 31
Conn. 839 ; Roethke v. Philip Best Brewing Co., 33 Mich. 340 ;
Thompson v. Congdou, 43 Vt. 396 ; Nordeu v. Jones, 33 Wis.
600.

KOSE V. HART. 1583

In replevin, a set-off is not allowable ; Fairman v. Fluck, 5
Watts 516 ; Blue Valley Bank v. Bane, 20 Neb. 294 ; Ward v.
Anderberg, 36 Minn. 300 ; McDonald v. McDonald, 55 Mich.
155 ; Wright v. Quirk, 105 Mass. 44 ; Stow v. Yarwood, 14 111.
424. But in cases controlled by statutes, or where special cir-
cumstances apply, set-off is allowable ; Bonte v. Hall, 2 Cin.
Ohio 33 ; Home Sewing Machine Co. v. Zachary, 2 Tenn. Ch.
478; Murray v. Pennington, 3 Gratt. 91.

Unliquidated demands. — It is a general rule that these are not
the subject of set-off, either at law or in equity ; Tracey v.
Grant, 137 Mass. 181 ; Bonaud v. Sorrel, 21 Ga. 108 ; Montague
V. Boston Iron Works, 97 Mass. 502 ; Casper v. Thigpen, 48
Miss. 635 ; Hall v. Glidden, 39 Me. 445 ; The Zouave, 29 Fed.
Rep. 296; Gelshenen v. Harris, 26 Id. 680 ; Hopkins v. Stockdale,
117 Penn. St. 365 ; West v. Hayes, 104 Ind. 251. Unliquidated
damages are when they are not ascertained, or when there are
no facts from which the amount may be ascertained by calcula-
tion ; Robison v. Hibbs, 48 111. 408. See Smith v. Eddy, 1 R. I.
476 ; Corey v. Janes, 15 Gray 543 ; Stevens v. Blen, 39 Me. 420;
Bell V. Ward, 10 R. I. 503; Drew v. Towle, 27 N. H. 412;
Smith V. Warner, 14 Mich. 152. But in some states unliqui-
dated damages growing out of contracts are made the subject
of set-off by statute. See Gardner v. Risher, 35 Kans. 93 ; St.
Louis R. R. Co. V. Chenault, 36 Id. 51 ; The Tangier, 32 Fed.
Rep. 230 ; Sheldon v. Martin, 65 Tex. 409 ; Knott v. Burwell,
96 N. C. 272 ; Speers v. Sterrett, 29 Penn. St. 192 ; Robinson v.
L'Engle, 13 Fla. 482 ; Keyes v. Western Vermont Slate Co., 34
Vt. 81 ; Eads v. Murphy, 52 Ala. 520 ; Sledge v. Swift, 53 Id. 110.

Law and equity. — The power of allowing an equitable off-set
"should be ver}^ cautiously exerted, and only in a case where the
equity involved is entirely clear and certain. It is never justi-
fied, save where other remedies are impossible, and where the
demand allowed is put beyond reasonable doubt; " Armstrong
V. McKelvey, 104 N. Y. 179, 185. See Merriam v. Childs, 93
Mo. 131. There is a long discussion of the subject of equitable
set-off in Nuzum v. Morris, 25 W. Va. 559. See Payne v. Webb,
29 W. Va. 627. Except under particular circumstances, joint
and separate debts, or debts accruing in different rights, will
not, for the want of mutuality in the cross demands, be set off
in equity against each other ; Glover v. Hembree, 82 Ala. 324,
'327. Equity is frequently resorted to in case of insolvency.

1."»K4 knsi: v. iiai:t.

Sec (iimplKll V. Connui, TH Ala. 211; FarriM v. IIouHlon, 78
Ala. '2'i(); (liik'iui Kailroiul Co. v. Kiinor, 11»> 111. 0.> ; Fourth
Nut. Bank r. City Bank, G8 1(1,31)8; Littletieia r. Albany Bank,
1)7 N. Y. r)Hl. See SpanMin^' r. Backu.s, liiJ Muss, rtu'.i; Sulig-
mann v. II«lK'r Clothinj^ Co., ♦•l* Wis. 410. It is said that a set-
off may l>c' ;illo\vt'(l in tMjiiity in the same eases a.s at law. First
Nat. Biink r. Burnuni Iron Works, 58 Mieh. 1*J4. See Scain-
nion r. Kinih;ill, [)'2 V. S. M'2. See " In case of insolvency,"
in/ni. For a case in a I'niteil States court wliirh held that a
plea of set-off whiih (ontains a purely e<|uitahlo defence to an
action on a promissory note, cannot be admitted, alth«»ui^li such
defence would Ik* allowed in the state where the note was made.
See Snyder r. Pharo, 2o Fed. Uep. 398. In some stutes, an
0(juital)lc claim may be set off in a suit at law; .Vlwater v.
Schenck, 9 Wis. V\0; Chandler r. Drew, 6 N. II. ICIK In a
lat<! case, it was held that ahhou;.,di a (h'fendant at law, with a
cl;iin« not avaihihle in set-<»ff, c;innot usually U« relieved in
e(;uity aj^ainst a solvent plaintiff, yet he can Ik* relieved if the
t'laim arises out of the matter in controversy, or is an agreement
so connected therewith, m". if olwerved to destr<»y tlie demand in
suit; Baker r. Hawkins, 14 U. I. 3.">9. Many (»f the cases —
especially old ones — draw elalntrate distinctions l>etween law
aiul ecpiity in relation to off-set. hut the principles are largely
treated under the subject «)f '* mutuality," in/nt.

How far claim must be legal. — Deuiands must U? Ic^'al : Payne
V. L..u(loM,:{ r.ihl. ( Ky.)ii.'»0; Caldwdl »•. Caldwell, 2 Bush (Ky.)
44ti : ( hicago Dock Co. v. Duidap, 32 111. 2<)7. See Hall r. Kim-
mer, 01 Mich. 2»J9. Services to the plaintiff which ar-- a fraud
Uj)on a third person cannot l>e set off; I'.vcrnghim v. ICnsworth,
7 Wiiid. 32G; Callehan r. Stafford, Is La. Ann. ;'>;')«>. The
part of a divisible demand which is legal may Ix) set off: Rice
t: Welling, .") Wend. o'Jo ; .McCraney v. Alden, 46 Barb. 272.

Mutuality. — '^ The claim asserted as a .setniff must Ix* held by
the i)arty who asserts it, ami not by him and another jointly,"
and so of setting off a several debt against a joint ; Proctor v.
Cole, 104 Ind. 373, 370; Hush v. Thompson, 112 Id. 158, 1»)2;
Griffin v. Cox, 30 Id. 242; Booe v. Watson, 13 Id. 387; Carter
V. Berkshire, 8 Blackf. 103; Richardson v. St. Joseph Iron Co.,
5 Id. 14«); Ingols v. Plimpton, 10 Col. 535; Ryan i-. Barger, 16
111.28; Dmbon i-. Kelley, 22 Ind. 1S3; Brown v. Warren, 43
N. II. 430; Coates v. Preston. 105 III. 470; Clark v. Taylor,

KOSE V. HAKT.

1585

68 Ala. 453. A debt accruing to a person in las individual
cai3acity cannot be set off against a debt due from him as
trustee ; First National Bank v. Barnum Works, 58 Mich. 124.
See Lynde v. Davenport, 57 Vt. 597 ; Vason v. Beall, 58 Ga.
500 ; Jones v. Brevard, 59 Ala. 499 ; Collins v. Greene, 67 Id.
211 ; Robertson v. Garshwiler, 81 Ind. 463. The principle ap-
plies in the case of all mutual accounts ; Peine v. Lewis, 64
Miss. 96; Re Cleveland Ins. Co., 22 F. R. 200; Penniman v.
Loney, 40 Md. 471. See Perry v. Chesley, 77 Me. 393. But it
has been held that a judgment in favor of A. and against B. and
C. may be pleaded as an offset to an action by B. against A ;
Moody V. Willis, 41 Miss. 347 ; Peyton v. Planters' Compress
Co., 63 Id. 410. The converse of the first proposition is gen-
erally true, that a separate debt cannot be set off against a joint
one ; Howe v. Sheppard, 2 Sum. 409 ; McDowell v. Tyson, 14
S. & R. 300 ; Bridgham v. Tileston, 5 Allen 371 ; Wilson v.
Keedy, 8 Gill 195. The same rule applies in equity, although
subject -to exception; Home v. Sheppard, supra; Brewer v.
Norcross, 17 N. J. Eq. 219; Story's Eq. Jur. § 1457. And the
rule is at law sometimes qualified by agreement of parties ; Per-
kins V. Hawkins, 9 Gratt. 649; Smith v. Myler, 22 Penn. St. 36,
40. And in cases of insolvency ; Phelps v. Reeder, 39 111. 172.
In Pennsylvania it has been held that one of two or more
defendants may set off his individual claim against the plain-
tiff's joint claim ; Miller v. Bomberger, 76 Penn. St. 78. See
Kent V. Rogers, 24 Mo. 306 ; Dunn v. West, 5 B. Monr. 376.
And such set-offs are allowed in many cases by liberal statutes ;
Threlkeld v. Dobbins, 45 Ga. 144 ; Redman v. Malvin, 23 Iowa
296 ; Sledge v. Swift, 53 Ala. 110.

Partnership. — The debt of one partner cannot be set off
ao-ainst that of a partnership, and vice versa ; Collier v. Dyer,
27 Ark. 478 ; Harlow v. Rosser, 28 Ga. 219 ; Ward v. Newell,
37 Tex. 261 ; Meeker v. Thompson, 43 Conn. 77 ; Ross v. Pear-
son, 21 Ala. 473 ; Watts v. Sayre, 76 Ala. 397 ; Reed v. Whit-
ney, 7 Gray 533; McKay v. Overton, 65 Tex. 82; Gardiner v.
Fargo, 58 Mich. 72 ; Wilson v. Runkel, 38 Wis. 526 ; Singerly
V. Fox, 75 Penn. St. 112; Coleman v. Elmore, 31 F. R. 391.
Where a partner wrongfully uses partnership property to pay
his own debts, there is relief in equity ; Cornells v. Stanhope,
14 R. I. 97. See Weaver v. Rogers, 44 N. H. 112. In an action
for debt due from defendant to plaintiff, the former cannot set

l.'.sr. l:ii-,F. V. MAUT.

oil .1 «lcljt tluu from llio hitter t<> a firm in which l>oth are [>art-
iiers ; II<juston i*. Brown, --"J Ark. 'A'V-i; L:in<l v. ( iiuan, I'J Ala.
•J!»T. See Scott i>. ('iinii)lx.'ll, ;50 Id. 7-JH; Sjun[)le v. Grillith, 5
Iowa 370. An u«^ree«l ImUuicu clue from one partner to another
upon a partnershij) .settlenuMit Is it j^jood set-off; Dana r. Barrett,
;> .1. .1. .M.ir.sli. (5. In a suit hy a .surviving partner fi>r u debt
diif fioiii tin- tirni, lh«' defi-ndant may set off a deht due to him
fioin tilt' surviving,' partner ah>ne: Ilolhrook r. Lackey, 13 Met.
l:'.ii; i;nsh c. ("lark, 127 Miuss. Ill, 111'; .Miller r.' Franklin
liank, 1 Pai^^e 444. So in most actions hy and a;^ainst snrviv*
in^' partners there seem to he liU'ral ri;,'hts of set-«»ff; Masterson
f. (loiMllc'tt, 40 Te.x. 402; Newlierry «». 'rrowhrid;^e, 13 Mich.
203; Wain r. llewes, /i S. ».V K. 408. So there may be set-off
ill the case of sju'cial agreements «)r particular Ixiok charges;
Hood r. Uiley, lo N. J. Law 127; Land. r. Brolaski, 3H Mo. ol.
See Cillcy r. \'an Patten, oM Miiji. 404. It is htld that co-
partnci-s trusteed may set off a (lain) due from the defendant to
»>iit' of tin- partners; Ilohiiison r. Furhush, 34 Me. .'>0!». •

Husband and wife. — 1 he .same general principle applies
wliere a set-off is claimed in ease of demands relating to
husband and wife. In most ciuses there can l>e no set-off;
.Morris r Booth, S Ala. «.>07 ; (Ua/ebrook v. Itigland, H (iratt.
332; Smith v. Johnson, 5 Harr. 40; Jamison r. Brady, S. &
K. 400; Pierce r. Dustin, 21 N. 11. 417; Xaglee r. Ingersoll,
7 Pcnn. St. 1S.">; Bent/, i: Bent/., l»o Peiin. St. 210; Doyle v.
Orr, ol Mi.ss. 233; Hendricks c. Toole, 2I> .Mi.-h. 340; Mu.ssel-
man r. (Jalligher, •■)2 Iowa 3S3 ; Challiss r. Wylie, So Kans.
r.OO; Sloteman r. Thomas Mfg. Co., ♦>«) Wis. 41»9. Where the
obligees of a bond sued for the use «»f a femt- j)laintitT and
husband, an account was set off of medical services to the wife
before marriage ; Oary v. Johnson, 72 \. C. 08. See Johnson
V. King, 20 Ala. 270. A promissory n«)te executed by husband
and wife, the latter as surety, is available as a set-4^)ff against a
note executed to the husband; .\J)shire v. Corey, 113 Ind. 484.

Principal and agent. — The debt of an agent cannot be offset
against one iluc the principal; Wilson r. Codman, 3 Cr. 103.
Where a broker sells goods without any possession of the same,
and the purchaser knows it, receiving the same from the prin-
cipal, the purchaser cannot set off against the seller a debt due
to him from the broker ; Dunn v. Wright, 51 Barb. 244. See
New Orleans v. Finnerty, 27 La. Ann. 681, 21 Am. Rep. 569;

ROSE V. HART. 1587

Carman v. Garrison, 13 Penn. St. 158 ; Forney v. Shipp, 4
Jones' (N. C.) Law 527. But the purchaser may treat the
agent as owner, and in an action brought by the principal for
the price may set off a claim he has against the agent, provided
the purchaser supposed the agent was owner and there were no
circumstances to put him on inquiry ; Frame v. William Penn
Co., 97 Penn. St. 309; Huntington v. Knox, 7 Cush. 371;
Nichols V. Martin, 35 Hun 168, 170 ; Wright v. Cabot, 89 N. Y.
670 ; McLachlin v. Brett, 105 N. Y. 391 ; Hurlbert v. Pacific
Ins. Co., 2 Sum. 471. See Granger v. Hathaway, 17 Mich. 500 ;
Noble V. Leary, 37 Ind. 186 ; White v. Jaudon, 9 Bosw. (N. Y.)
415.

Principal and surety. — The question of mutuality in case of
demands of principal and surety is largely one of statute, and
often involves equitable principles ; Knour v. Dick, 14 Ind. 20 ;
Davis V. Milburn, 3 Iowa 163, 167 ; Newell v. Salmons, 22 Barb.
647 ; Crist v. Brindle, 2 Rawle 121. " The principal debtor is
the real debtor, and the surety but security for the payment of
the principal's separate debt ; and offsetting a demand in favor
of the principal debtor alone, when sued with his surety, is
setting off against each other what may be regarded as essen-
tially mutual debts;" Himrod v. Baugh, 85 111. 435, 438;
Mahurin v. Pearson, 8 N. H. 539 ; Concord v. Pillsbury, 33 Id.
310. The note of a principal and surety may be set off against
a note of such principal alone ; Andrews v. Varrell, 46 Id. 17.
See Newell v. Salmons, supra ; Myers v. State, 45 Ind. 160.
But it has been held that there can be no set-off unless by con-
sent of the principal; Lynch v. Bragg, 13 Ala. 773 ; Woodruff v.
State, 7 Ark. 333 ; Dart v. Sherwood, 7 Wis. 523. But set-off
is generally allowed in Indiana "when the action is upon a
note or other contract against several defendants, any one of
whom is principal and the others sureties therein ; " Sefton v.
Hargett, 113 Ind. 592, 594. But set-off is often denied where
circumstances are exceptional ; Gentry v. Jones, 6 J. J. Marsh.
148 ; Holden v. Gilbert, 7 Paige 208 ; Cox v. Cooper, 3 Ala. 256 ;
State V. Modrell, 15 Mo. 421 ; Peine v. Lewis, 64 Miss. 96. And
a suret}^ when sued alone cannot, " without the assent of the
principal, set off a debt due the principal from the plaintiff in
the suit, to discharge him, the surety, from his liability;" Graff
V. Kalin, 18 Bradw. 485, 487.

In case of assignment. — A set-off, not due to the defendant

1'j8H K08K V. MAKT.

but iissignt'd to Imii, must Uaw Ik-i-u ni;uh', t»> i»c v.ilnl, Ix'fore
tliu conuueuit'iiuMit nf ilu- suit; Miirtiu r. W'illuinis, IT JoIiiih.
330. See Wjilker c. McKay, 2 M«t. (Ky.) lilM ; Th..in|..sc)n r. Mc-
C'lelliind, 2'> IViiii. St. 475; Spceis r. Stenvtt, Id. ll»-J; F(.llett
t'. Buytr, 4 Ohio St. .'iM; Olnisteinl v. Stutt, 5o Conn. l'2o. Ah
to proniis.soiy note.s, see Wliitaker v. 'rurnbuU, IH N. J. Laiw
172; Joluison r. Conistock, ♦> Hill 10. A.s to a ImjucI, hco
liackus /•. SpauMinjr. 12'» .Mass. •_»:54 ; H .b.hns. l')2; Itu.ssell v.
l.illit^'ow, 1 hay {S.i'.) 4:57; Kiddick r. Moore, ♦;."> X. C. 3«2.
Tlif lioMi'i- l»y delivery of a non-nej^otiiible note eannot set off
the sanu! in an action against hitn by tlu« niakrr; Ayre.H v.
MeConnel, 1') 111. 230. See Ilickerson r. .MeFaddin, 1 Swan
(Tenn.) 2iiH. C'luwes in aciiun assijjned eonditionally cannot
beset ofT; Shryock v. Hasehore, H'2 iVnn. St. l')9; .MeDade v.
Mead, IM Ala. 214; McDonald r. Ilarriscm, 12 Mo. 447. An
u.ssi^'n(!e of a eontract for the payment of money liolils it free
from any oflfsets in favor of tlie debtor apiinst the UMsi^nor,
created after notice to the debtor of the assignment. See Mar-
tine r. Willis, 2 K. I). Smilii ( .\. V.) 524; .Solonu.n c Holt, 3
Id. 131); Robinson r. Swijjart, 13 Ark. 71. Stime statutes pro-
vide that assiirnmcnt shall not In-ar sct-<dT ; (Janlner e. Kisher,
35 Kans. 1»3. In a suit by the assignee after nuiturity of a
j)romi.ssory note, it is a ;;oo<I reply to an answer of Met-off by the
maker aj,'ainst the assii,Mior, that the maker is indebted to such
assii^n()r in ii sum in excess of that claimed as a set-ofl"; .Meeker
r. Shanks, 112 Ind. 207. See Lucas v. The Kast Co., 3M Hun
581.

In case of Insolvency. - Where the assignees ni pcison.il rep-
resentatives of a bankrupt or insolvent are plaintitTs or defend-
ants, liberal rijjhts of set-off are pnmted by statute, or e(|uitable
}»riniiples are adopted in many states. Often a pencral \ki\-
anciuLr of mutual demands is allowed irrespective of the period
wlifii they became due or the person in whom the rijjht of action
is vested. See .Mdrich v. ('amplvll, 4 (iray 284; Clarke r.
Ilawkin.s, 5 K. I. 21l>, 224; Morrow r. Hri.i;ht, 20 Mo. 298; Ray-
mond r. Green, 12 Neb. 215, 220 ; Marks v. Barker, 1 Wa^ih.
C. C. 178; Jones v. Robinson, 2B Harb. 310. But debts pur-
cbased with knowledge of tlie debtor ; insolvency or insolvent
condition and nt)tice to the debtor of the purchase cannot l)e
set off in an action by the assignee upon a debt due from tlie
purcliaser to the debtor: Smith r. Hill. 8 (Jray 572: Long v.

HOSE V. HART. 1589

Penn. Ins. Co., 6 Penn. St. 421. Old cases in whicli no set-off
was allowed are Henriques v. Hone, 2 Edw. Ch. (N. Y.) 120 ;
Boinod v. Pelosi, 2 Dall. (Penn.) 43 ; Bateman v. Connor, 6
N. J. Law 104 ; Johnson v. Bloodgood, 1 Johns. Cas. 51. It has
been held in an action by the assignee of a debtor for the benefit
of creditors, against a creditor for the conversion of notes of
the debtor held as collateral, that the defendant cannot set off
the debtor's general indebtedness ; Lane v. Bailey, 47 Barb. 395.
And in an action by an assignee on a debt due after the volun-
tary assignment, the defendant may set off a debt due from the
assignor at the time of the assignment. A bank made an as-
signment hokUng the defendant's note not due and was indebted
to the defendant for deposits exceeding the note. In an action
on the note after maturity the defendant was allowed to offset
the indebtedness to him; Jordan v. Sharlock, 84 Penn. St. 866;
s. c. 24 Am. Rep. 198. See Matter of Fulton's Estate, 51 Penn.
St. 204 ; Rubey v. Watson, 22 Mo. App. 428 ; Skiles v. Houston,
110 Penn. St. 254. A similar rule seems to have been adopted
in New York; New Amsterdam Bank v. Tartter, 4 Abb. New
Cas. 215 ; s. c. 54 How. 385 ; Fort v. McCully, 59 Barb. 87. See,
also, Finnell ik Nesbit, 16 B. Mon. 351. But in Connecticut a
depositor upon the insolvency of a savings bank cannot set off
his deposit against a debt due from him to the bank, unless the
deposit w^as made to be applied in payment of the indebtedness
to that amount with the knowledge of the officers ; Osborn v.
Byrne, 43 Conn. 155 ; s. c. 21 Am. Rep. 641. A bank indebted
to an insolvent depositor cannot purchase a claim against the in-
solvent estate and offset it ; Union Bank v. Hicks, 67 Wis. 189.
See Re Cleveland Ins. Co., 22 F. R. 200 ; Fourth Nat. Bank v.
City Nat. Bank, 68 111. 398 ; Smith v. Felton, 43 N. Y. 419 ; Case
V. Cannon, 23 La. Ann. 112.

This principle of set-off is extended to the assignees or
receivers of insurance companies, and the latter's customers.
These have been allowed to set off the amount due for losses,
although not definitely ascertained in a suit for premiums by
the assignees or receivers; Holbrook v. Receivers, 6 Paige 220.
But where at the time of the receiver's appointment the com-
pany had claims against the defendant, who held two of the
company's endowment policies not yet due, in which it was
to pay the sum insured to his wife upon his death prior to a
certain date, and if he was living, then to him, it was held in

l.V.)U KOSK V. HAKT.

an action on the claims that the defendant couUl not Ket off tho
reserve value of the policies; Ne\viond> v. Alniy, IM> N. Y. 308.
See R*' Clevthuul Ins. ('.)., '22 V K. J<M); [iynu r. Anj;lesea, 12
At. Kep. fi'V.K Where a manager was employed hy tho receiver
vi an insolvent corporation to perform the hitter's duties, and
an amount from the proceeils of the mortj^'aj^e was awiirded to
tho receiver as compensation, and ho was directed to pay the
manat^cr a jjortion thtreof, it was held that the inrlrhtrdnesji
from tlu' manager to the rec«'ivcr in a lar;^er amount l)cing
admitted a petition hy the manaj^er fi»r an order compelling the
receiver to pay him the amount M{>ecitiod should Im* dismissed ;
Gat/mer u. rinlailelphia Railway Co., 31> N. J. Kip 'W.i. The
following ca.ses are important in their treatment of the sid>ject
as applicahlo to the estates of deceased in.sol vents.

"In the settlemi'iit of the estates of decease<l insolvents, tjio
analogii al rule followi-d here in reganl to set-off is, as it is in
other states, the equitahle rule of tho l>ankrupt systems of Kng-
land and the I'nittMl States; that is, without regard to any
special connection In'tween the claims sought to Ihj set off, to
sink the sum due to the insolvent hy the amount of tho sum
actually <luc from him to his dehtor, and, in truth, to hold the
latter to l)e a dehtor to the estate oidy for the halance;" (Marko
V. Ilawkin.s, o K. I. 210, 224; McD.'.nahl r. Welwter, 2 .M;uhs.
40H; Irons v. Irons, ') K. I. 2C>\. It wjuh acconlingly stated in
Clarke v. Hawkins that the analogy should applv to the wind-
ing up of insolvent corporations as in N»'w York and New
Jei-sey ; McLaren r. IVnnington, 1 Paige 1 1 J : Miller v.
Receivers, Id. 444 ; !{»• Receivers, Id, oM'). ju Aldrich v.
CamphcU, 4 (iray 2S4, it is .said, "This case is not to l)e
determined upon the technical rules of setH»tT, hut upon the
{trinciplcs regulating the .settlement of insolvent estates,
whether of persons living or decea.sed. Tlie settlements with
such estates are tinal, and all nuitual demancLs are to Ije
balanced. Claims not li«piidated, and dehts absolutely due,
though payable in the future, are to Ix? included. The halance
found u[)on such adjustment is the only debt remaining. In
the case of an insolvent estate of one deeea.sed all claims exist-
ing at the time of the death are to be set off; in the ca.se of an
insolvent estate of a person living, all claims existing at the
time of the first publication (»f the notice of the issuing of the
warrant." See Dcmmon v. Boylston Bank. •') Cush. 104 ; Bige-

ROSE V. HART. 1591

low V. Folger, 2 Met. 255 ; Plielps v. Rice, 10 Id. 128 ; Bemis
V. Smith, 10 Id. 194. But the rules relating to the settlement
of insolvent estates of persons living or deceased, or to actions
brought b}^ assignees under an assignment for the benefit of
creditors, are declared to have no application to the claim of an
assignee of a chose in action ; Smith v. Felton, 43 N. Y. 419,
422, 423 ; Commonwealth v. Shoe and Leather Ins. Co., 112
Mass. 131 ; Spaulding v. Backus, 122 Id. 553, 555. It has been
held that where a bank has a lien on its own stock, given by
usage and by-laws of directors, for advances to a stockholder, the
assignees in insolvenc}^ of the latter cannot compel the transfer
of the stock without paying the amount due to the bank ;
Morgan v. Bank of North America, 8 S. & R. 73, 88. In
Receivers v. Paterson Gas Light Co., 23 N. J. Law 283, it was
held that a debtor of an insolvent bank, whether his indebted-
ness has accrued or not at the time of the insolvency, may set
off against the same either a deposit in the bank or the bills
thereof received by him in good faith before the company's
failure. And it was further stated, that the claim against the
insolvent corporation did not constitute a legal set-off under
the statute of set-off, as against the receivers ; but that, in an
action at law by the receivers, the defendant would be per-
mitted, under the statute to prevent frauds by incorporated
companies, to avail himself of the defence. This case contains
extensive references to the jurisdiction of equity over set-offs
in cases arising under bankrupt and insolvent laws. It shows
that the jurisdiction was exercised by the courts long before
the introduction of the provision into the statutes. After
stating that the fact that '' all well-considered bankrupt laws
do contain so broad a provision in favor of set-offs is in itself
the strongest authorit}' in support of the natural equity and
justice of the provision." It is said that " the general right of
set-off was first introduced in the bankrupt law in the year
1708, by the statute 4 Anne, cap. 17 ; but the course of adjust-
ing the balance was adopted in practice as early as 1675.
Thus, in 28 Car. 2 (1675), Lord North said. If there are
accounts between two merchants, and one of them becomes
bankrupt, the course is not to make the other to pay the whole
that was originally intrusted to him, and to put him, for the
recovery of what the bankrupt owes him, into the same condi-
tion with the rest of the creditors, but to make him pay that

1592 KosK V. ii.vi:t.

only which appears t»> In- diu- i<> tlie hanknijtt on tin- luoi i>{
the accdiuit. Mod. liir)."

It lias already been stated that iiniiiaturfd claims cannot l>e
setotY; and it is said that no claim ori^^Muatin^' or acijuired after
bankruptcy or the death of an insolvent can Ix.- s«*t ofT against
the executors or jussignees of the insolvent or the assignees of
the bankrupt because the assets are tlicn held in trust for all
the credit(us; Northampton Bank r. Halliet, H \V. A: S. .'UT, 318 ;
Irons V. Irons, 5 K. I. 2»;4, 2»;7 ; Clarke i: Hawkins, Id. 219. In
Smith r. Hill, H (Jray 572, previously quote«l, it was held that
a debt purchased with knowledge of the (hd)tor's insolvency,
and reason to Ixdieve that he is about to go or Ik« driven into
insolvency, and notice to the drbtor of the purchase, cannot 1)6
set off in an action by tlu- assignee in insolvency upon a (hd»t
<lue from the piirchaser to the thbtor. The cas»' is distinguished
from Aldrich v. CanjplR'll, )*ii[>rii, tlu* court saying that "to
allow this set-off wouhl not Ik* consonant with e(|uity or justice
to the parties interested ; would directly tend to defeat an
ecuiitable distribution of the jissets among the creditors gen-
erally ; an<l wouhl enable a debtor of an insolvent — one notori-
ously so, and who was about to lH'c<)me the subject of proceedings
in insolvency — to give a preferen<e to suih cre<litoi-s of the
insolvent as he might be disposed to favor, making their debt«
availabh" to tlu* whole amount due, if the purchaser pleased to
take them at that rate, as he might well do if he w;is to Ih?
albtwt'd their full amount as an available .set-off against his own
debt to the insolvent ; or, what would Ik; equally objectionable,
to allow the debtors of the insolvent to di.scliarge their liabilities
by a set-off accjuired by purchasing the depreciated debts of the
insolvent at a large discount fnun their nominal amount." See
Hichter v. Selin, S S. *.S: R. 425 : Kinney v. Bennett, 27 Gratt.
8«)5: Smith v. Brinckerhoff, 8 Barb. 519; Ogden r. Cowley, 2
Johns. JTI : MrClenahan v. Cotten, 83 N. C. 332; contra, Mar-
tin V. Mohr, i^*d Ala. 221 ; Mc(Jowan v. Budlong, 79 Penn. St.
470. In Ex parte Whiting, 2 Low. 472, it was held where A.
was a creditor of a bankrupt for two distinct debts, and held
shares of stock in pledge for one of them, with a statutory
power of sale existing at the date of bankruptcy, that he could
apply the surplus proceetls of the shares, after paying the first
debt, to the payment of the second. See Ex parte Howard Nat.
Bank, Id. 487. By U. S. Rev. Sts. § 5073. provision is made as

ROSE V. HART. 1593

to set-off in case of mutual credits, but debts purchased after
the filing of the petition in bankruptcy are prohibited. This
section was enlarged by act of June 22, 1874, c. 390, § 6, by
providing that § 20 of the original act, now § 5073 of the Rev.
Sts., should be amended by adding to the end of the first clause
of said § 20 the words " or in cases of compulsory bankruptcy,
after the act of bankruptcy upon or in respect of which the
adjudication shall be made, and with a view of making such
set-off." This has been held to apply only to cases of com-
pulsory bankruptcy ; Lloyd v. Turner, 5 Saw. 463 ; and it would
seem to both voluntary and involuntar}" ; Hunt v. Holmes, 16
Bank. Reg. 101. In Williamson v. Gayle, 7 Graft. 152, this
equitable principle under consideration seems to have been
extended to a case of foreign attachment. It was held that the
home defendant having property of the absent defendant, for
keeping which the absent defendant Avas indebted to him, was
entitled to his claim out of the property as against the attaching
creditor.

Demands by executors and administrators. — An executor or
administrator cannot set off a debt purchased by him after the
death of the testator or intestate, against a demand due by the
estate of the deceased or accruing in his life-time ; Dudley v.
Griswold, 2 Bradf. (N. Y.) 24. If he uses the funds to buy up
debts against claimants he must assume the risk individually ;
Mead v. Merritt, 2 Paige, 402. A defendant cannot set off a
debt due to him as administrator ; Thomas v. Hopper, 5 Ala.
442. Otherwise when he has been charged with it on final
settlement in the probate court before issue of writ ; White v.
Word, 22 Id. 442. A debt due to an administrator personally
cannot be set off against the share of a distributee of the estate ;
Bradshaw's App., 3 Grant's (Penn.) Cas. 109 ; Richbourg v.
Richbourg, 1 Harp. (S. C.) Ch. 168. An executrix cannot
set off damages for harassment and attorney's fees paid against
a claim prosecuted against the estate ; House v. Collins, 42
Tex. 487. In an action against an administrator for a debt of
his intestate the defendant cannot set off a sum due on a note
of the plaintiff to him as administrator for his intestate's goods
sold by him as such administrator ; Smith v. Edwards, 1 Houst.
(Del.) 427. For a set-off that was allowed under the New
York code, see Lerche v. Brasher, 37 Hun 385. In many cases
against executors and administrators the latter have been

1594 KOSK V. IIAUT.

iillovved to set off (lemaiuls lieltl by them uj^uiiist the pluintiffH
where there was iniitiiiility, and the eases weie brought within
the re((>i,fiii/A'(l priiiciides of the subject. St-t* IV'rcy v. Chiry,
32 iM(l. lM;") ; rciuson v. Darrington, 32 Ahi. 227 ; Burke v.
Stilhvell, 23 Ark. 21*4; Wilson v. Kdmonds, 24 N. II. 517;
Cialloiiey's App., IViin. St. 37; Strong r. Bass, 35 M. 333.
See, also, Boyd r. Townes, 7'.> \'a. \\H\ Titus v. Iloagland, 39
N. J. E(j. 294. It is a general ride that a legatee owing the tes-
tator is entitled to only the excess of the legacy over his debt;
Armour v. Kcmlall, 15 \i. I. 19:5. Sec Ilowze v. Davis, 70 Ala.
381.

Demands against executors and administratora. — If an executor
or adniinistrutoi- brings suit upon a tlcbt created against the de-
fendant, (U- upon wliith the cause of action arose after the testator
or intestate's death, it is a general rule that tiie defendant cannot
set off a debt existing and suable against the testator or intes-
tate in his life-time : iJoot r. Taylor, 20 .Johns. 137; Dale v.
Cooke, 4 .b»lins. ( li. l:'). See Shaw r. (Jookin, 7 N. II. 10;
Cook i\ Lovell, 11 Iowa Sl ; \Volfersi)erger r. Bueher, lO S. & K.
10; Jordan v. Nat. Shoe Bank, 12 Ilun ( N. V.) 512; Patterson
V. Patterson, 59 X. Y. 574 ; Biz/ell r. Stone, 12 Ark. 37H ; Ilarte
V. Ilouchin, 50 Ind. 327 ; DayhutY /•. Day huff, 27 Id. 15M ; Wake-
man V. Everett, 41 Hun 278. See, also. Steel v. Steel, 12 Penn.
St. 64; McDonald v. Black, 20 Ohio 185; McLaughlin v. Win-
ner, 03 Wis. 120; Stuart v. Commonwealth, 8 Watts (Penn.)
74. A claim due fiom an executor in his imlividual capacity
cannot be set off against a deman<l due the testator; Wisdom v.
Becker, 52 111. ;i42. Sec Harris v. Taylor, 53 Conn. 500. See
Westfall r. Diingan, 14 Ohio St. 270. It has In-en held in a
suit by an administrator for a debt due deceased, the defendant
may set off a debt »lue him by the firm of which deceased was
a member; Blair c. Wood, 108 Pemi. St. 278. Where suit is
brought by executors against a legatee for money due he can-
not plead the amount of his legacy as a set-off unless lie shows
the estate solvent and ready to be distributed ; Dobbs v. Prothro,
55 Ga. 72. See Guthrie v. Guthrie, 17 Tex. 541. Many c;ises
turn upon the strict meaning of the code or statutes allowing or
forbidding a set-off against an executor or administrator ; Turner
V. Tapscott, 30 Ark. 312; Tyler v. Boyce, 135 Mass. 558; Mar-
tin V. White, 58 Vt. 398; Russell v. Hubbard, 70 Ga. 618; Carr

KOSE V. HART. 1695

V. Askew, 94 N. C. 194 ; Sclierer v. Ingerman, 110 Ind. 428 ;
Rogers v. Murdock, 45 Hun 30.

Mortgagor and mortgagee. — " The proceedings to foreclose a
mortgage are in rem, and not against the person of the debtor.
The principles of set-off do not apply." Where the holder of a
mortgage died, naming the mortgagor his executor, and on a
settlement of the executor's account a balance was due him
from the estate, it was held that such balance could not be set
off in a suit to foreclose against the amount due thereon ; Dol-
man V. Cook, 14 N. J. Eq. 56 ; Bird v. Davis, Id. 467. In a
suit to foreclose, the defendant cannot set off against the mort-
gage debt unliquidated damages for breach of an agreement,
foreign to the mortgage debt, on the ground that the plaintiff
had parted with some of his property and had threatened to
put the residue beyond defendant's reach ; Jennings v. Web-
ster, 8 Paige 503. But see Rawson v. Copland, 2 Sandf. Ch.
251 ; s. c. 3 Barb. Ch. 166. Damages for the breach of a sub-
sequently made contract cannot be set off against the amount
due upon a mortgage ; Long v. Long, 14 N. J. Eq. 462. A
lessee, who is mortgagee, cannot in a suit for rent set off the
mortgage interest ; Scott v. Fritz, 51 Penn. St. 418. Where
one gives his note, secured by mortgage, for property sold to
him and warranted as to quality, and when the note matures,
others, to prevent foreclosure, take the note up and give their
own in lieu, they cannot, in a suit against them, set off dam-
ages to the maker of the first note, occasioned by a breach of
the warranty ; Zuckermann v. Solomon, 73 111. 130. See Timms
V. Shannon, 19 Md. 296. Where the mortgagee of j^ei'sonal
property brings action to foreclose, and recovers a judgment,
subsequent purchasers of the goods cannot set up a demand in
favor of the mortgagor against the mortgagee ; Beers v. Water-
bury, 8 Bosw. (N. Y.) 396. When the mortgagee brings a bill
to foreclose, the mortgagor may set up any defence other than
the statute of limitations, available in an action at law on the
debt. But when he resorts to equity to obtain the benefit of a
set-off he must show some other ground of equity than a mere
legal demand, which may be set off under the statute ; Knight
V. Deane, 77 Ala. 371. For a case where the plaintiff had the
equitable right, when, or before, the mortgage note matured, to
surrender to the mortgagee, the defendant, his notes held by
her, and to have the money due upon them credited upon the

l,')\H] linSK V. IIAKT.

note he held against lier. Sec Harrison r, liray, 92 N. C. 488.
See, also, Byerly i'. Iliimijlirey, 9o N. C. 151. In case of fore-
closure the statutes ot" some states confer lilxjral rij^litn of set-
off; Fvowry r. Kurd, 7 .Minn. 'MAt; Allen v. Maddox, 40 lowii
1-4. Ill an action by an a-ssij^nee to foreclose a niortgaj^e, iw-
sioiu'd to liini as collateral for a lander deht, to wiiith the
niortt^nigee is not made a party, the njorti,Mi,'or taiuiot set off
the amount of a note a<jfainst the niorti,Mt,'ee purchased hy liini
after the transfer of tlie iiii>rti,Mi;t' ; lUakely r. Twining, ♦)!)
Wis. 2^>H.

Claims by or against banks. — "Tlie general rule is that a hank
has a rigiit of set-off as against a (K-posit, only when tlu' indi-
vidual who is hoth depositor and dehtor stands, in hoth these
characters alike, in i)reeisely the same relation, and on pretti.scly
the same footing towards the hank, and hence an individual
deposit cannot he set off against a partnership deht;" Interna-
tional Bank r. .loues, 119 III. 4oT. 41<». Hills of a l)ank accpiired
after its insolvency cannot l)e set off against «lel»ts due it at the
time of insolvency ; Diven /'. l*helj>s, .'U Harh. 2-4; ICxeliange Bank
V. Knox, 19 (iratt. 7:59; (Jee v. Bacon, I» Ala. ♦;99. See Clarke
('. Hawkins, ."» U. I. ■_']'.•. it is immaterial if a pait of the hills
were held l>y the defendant when tlie hank failed an<l tlie <leht
niaturcil ; I'^astern Bank r. ("apron, -2 Conn. «»;{9. Stock in a
bank is nt)t a set-oft' against a m»te given to it; Whittington v.
Farmer's Bank, '> Har. cV .1. 4S1>. The notes of a state Iwink,
after it has organized as a natiomd hank, cannot l>e set off
against a judgment recovered hy the latter; Thorpe r. Wege-
farth, .")•» I'cnn. St. 82. I)ei>osits made with hankers after witli-
drawal of a partner, hy the maker of a note to them l)efore with-
drawal, cannot he set off against the note; Dawson v. Wils«)n,
55 Ind. 21tt. For a case where it was held that a divi«lend that
would be coming to one as stockholder U[)on winding up, was
not available as a set-off, see Iluckersville Bank v. Hemphill,
7 Ga. 396. For a case where it was held that there were no
mutual creditors, see Stetson v. Exchange Bank, 7 (iray 425.
See further on this subject, Bank v. Macalester, 9 Penn. St.
475 ; Andrews v. Artisans' Bank, 26 N. Y. 298 ; Re Van Allen,
37 Barb. 225 ; American Bank v. Wall, 56 Me. 167 ; Colt v.
Brown, 12 Gray 233.

Public officers and the government. — Generally, set-off is not
allowed in cases of demands by or against public officers; Rus-

ROSE V. HART. 1597

sell V. First Presbyterian Church, 65 Peun. St. 9 ; Wilson v.
Lewistown, 1 Watts & Serg. 428 ; Harper v. Howard, 3 Ala. 284.
See United States v. Ringgold, 8 Pet. 150. It cannot be applied
to the salary of the Attorney-General, 80 Va. 485. See Water-
bury V. Lawlor, 51 Conn. 171.

The state being sovereign can be sued only by its own con-
sent, hence, in actions by the state, the right of set-off does not
exist, unless given by statute ; White v. Governor, 18 Ala.
767 ; Chevallier v. State, 10 Tex. 315. A tax not being a debt
is not liable to a set-off ; Gatling v. Commissioners, 92 N. C.
536. See Newport Bridge Co. v. Douglass, 12 Bush (Ky.)
673 ; Cobb V. Elizabeth City, 75 No. Car. 1 ; Finnegan v. City
of Fernandina, 15 Fla, 379 ; City of New Orleans v. David-
son, 30 La. Ann. 541, 554 ; Hibbard v. Clark, 56 N. H. 155.
Where the Commonwealth undertakes to litigate wdth a citizen
or corporation, the latter may, by set-off or counter-claim, defeat
the recovery of the state, but, in the absence of some sj)ecial
legislative authority, the defendant cannot have judgment over
against the Commonwealth ; Commonwealth v. Owensboro R.
R. Co., 81 Ken. 572. The law of set-off in case of United
States government will be found at the conclusion of the
notes on "counter-claim."

Various points. — The following points are of a general
nature, and are nearly all taken from late cases. Instead of
pleading a set-off or counter-claim, a defendant may make it
the subject of an independent action ; Blackwell Co. v.
McElwee, 94 N. C. 425. Generally the plaintiff cannot dis-
continue or be non-suited; Holcomb v. Holcomb, 23 Fed. Rep.
781; Whedbee v. Leggett, 92 N. C. 469; O'Malley v. Judy,
16 Mo. Api^. 553. A set-off may be pleaded as a defence to an
action brought in the United States courts in any state where
that plea is permissible by the laws of the state ; Frick v.
Clements, 31 Fed. Rep. 542 ; Partridge v. Ins. Co., 15 Wall.
573. For cases where the risrht of set-off was held to be
superior to an attorney's lien, or to the rights under an assign-
ment of an overdue debt ; Fairbanks v. Devereaux, 58 Vt. 359 ;
McDonald v. Smith, 57 Id. 502. Where the amount claimed by
way of set-off exceeds the jurisdiction of the state court from
which the cause is removed to the United States court, the
United States court has no jurisdiction ; Hummel v. Moore, 25
Fed. Rep. 380. As to abatement by death under a statute, see

1'>\)H ROSE V. HART.

FiiiniU r. Shell, ♦)!) Wis. "jt;]. If ;i co-plaintiff is julmittetl hy
uiiU'iidmL'iit, in lhsc ot" a verdict aj^ainst tlnni. the recovery
upon the countcr-claini will he at^'ainst hoth ; Mack r. Slotcniaii,
21 Fed. Itcp. 1<>!>. When payment and .set-otY are pleade<l the
hurdiMi of proof is on tiu- defendant; liri^diani r. Carli.sle, 7H
Alii. 24;l See Phillips r. Railroad ( o., lUT I'enn. St. 472 ; Smith
V. .M.;(Jn'iror, 00 X. ('. 101 ; Kllis v. Cothran, 117 III. 4.'>S. .\.s
to (picstiniis of /vx iiilJuiUntta, Krapp v. Kldridjj^e, 33 Kan. li>»I;
Hank ik Ketchum, tJO Wis. 4:is. A stockholder who is a
creditor of the corporation cannot olYset his unpaid sulxscri|>-
tiou as against the general indehtedness (»f the corporation;
Thompson v. Lake, 10 Nev. 103. I5nt in a proceeding under
the statute, against a holder of unpaid shares hy a creditor of
the corporation, the shaiclnthler may offset a matured indehted-
ness of the corporation to him: Wei)lH;r v. Leighton, H Mo.
App. ")02. It has heen held that a hank cannot set i»ff the
amount due upon a promi.ssory note against a certitieate of
deposit; Shutt; v. Pacific Nat. Bank, 13»J Msiss. 487. \\u\
inti-rest received hy a national hank upon a note, greater than
the rate alloweil by the Ktato law whert^ the note wsus made, in
violation of U. S. Kev. Sts. i^ 0107, cannot Ikj .set off in an
action hy the hank iipon the note against tin* amount due
thereon; First Nat. Hank r. Childs, 133 Mass. 24S: 130 Id. .■)10.
Statnte of Limitations is not a defence to set off if cross demand
was a legal subsisting claim when plaintiff's right of action
accrued; Patrick v. Petty, M3 ^Vla. 420. ( )ne having a note and
account against another may sue upon the not*- and re[)ly the
account iis a set-off against an e([ual ainonnt pleaded as a set-off
by the defendant; lUount v. Kick, 1<»7 Ind. 238.

Judgments. — "While there is no ex[)ress statute authority for
setting oft judgments where the creditor in one action is the
debtor in another, except in a limited number of cases" given
by statute, "'yet this power has Ix^en frequently exercised by
courts of law, and rests upon their jurisdiction over suitoi-s in
them and their general superintendence of proceedings before
them;" Ames v. Bates, 110 Mass. 307; Hadlam v. Springsteen,
41 Ilun lt>0 ; Sneed v. Sneed, 14 Tenn. 13 ; Frazicr v. IIen(ben,
80 Va. 265 ; Hosworth v. Tallman, 66 Wis. 533. And it is said
that the " practice of setting off one judgment against another,
betAveen the same parties, and due in the same rights, is
ancient and well established;" Holmes v. Robinson, 4 Ohio 90;

ROSE V. HART. 1599

Temple v. Scott, 3 Minn. 419. In the absence of statute, the
direction of the court controls. " A court can only order one
judgment to be set off against another when equity and good
conscience require that such a set-off shall be made;" Beard v.
Puett, 105 Ind. 68, 70. See Junker v. Hustes, 113 Id. 524;
Butner v. Bowser, 104 Id. 255 ; Chipman v. Fowle, 130 Mass.
352 ; Herman v. Miller, 17 Kans. 328. A debt not in judgment
cannot be set off against a judgment ; Thorpe v. Wegefarth, 56
Penn. St. 82. See Zogbaum v. Parker, 55 N. Y. 120 ; Duff v.
Wells, 7 Heisk. 17.

It has been held that the court will set off judgments of the
same or of different courts ; Hill v. Brinkley, 10 Ind. 102 ;
Brooks V. Harris, 41 Id. 390. But they must be mutual ; Rix
V. Nevins, 26 Vt. 384. See Ledyard v. Phillips, 58 Mich. 204.
Upon judgment, all the original peculiar features of a claim are
lost sight of, and the demand ranks equally among all other
judgments ; Temple v. Scott, supra. The subject of assign-
ment presents many interesting points: "It is not just that one
should be encouraged instead of his paying his own deljt to seek
out claims against his creditor, in order thus to change the posi-
tion of parties jt?ewcZe/i^e lite^ and this reason is equally applicable
to judgments which may afterwards be obtained upon such
claims;" Ames v. Bates, 119 Mass. 397, 399. See Desearn v.
Babers, 62 Miss. 421. Often where the equitable rights of third
parties would be aff'ected by an off-set, it is not to be made to
the injury of intervening rights honestly acquired ; Id. 399 ;
Zogbaum v. Parker, 55 N. X. 120 ; Gay v. Gay, 10 Paige 369.
See Perry v. Chester, 53 N. Y. 240 ; Wright v. Treadwell, 14
Tex. 255. The set-off of mutual judgments before the issue of
executions is an equitable power incidental to the jurisdiction of
courts over their suitors and officers, and is independent of any
statute of set-off; Chase v. Woodward, 61 N. H. 79. Although
if there has been an assignment to a third person before appli-
cation for a set-off is made, such third person is the real party
in interest, and no set-off can ordinarily be allowed. See Hovey
V. Morrill, Id. 9, 13 ; Goodwin v. Richardson, 44 Id. 125. But
see Mason v. Knowlson. 1 Hill 218 ; Turner v. Satterlee, 7
Cow. 480 ; Ault v. Zehering, 38 Ind. 429. A party may be
subrogated to the rights of another, so as to be entitled to off-
set a judgment against one held against him. Gillette v. Hill,
102 Ind. 531. A judgment against A. and B. in their individual

IGOO ROSE V. lIAltT.

capacities, caniiDt he set otl aj^ainst them :i> .uliiiiiii-^t i iturs;
McC'hesney v. Koj^ers, 8 N. J. Law 272.

Statutes do not always reciuiie the mutual lUlii.^ i«i \ni thie to
and from tlie same number of persons. See Hallinger v. Tar-
bell, 1<> Iowa 4'.>1 ; Spurr v. Snyder, JJ.') Conn. 172. Hut it is
hild in Alabama that at law, a judjjment apiinst one |mrtner
individually cannot be set otT, in whole or in part, against a
judgment in favor of the partnership ; and in ccjuity, «)ne judg-
ment cannot 1)6 set off against the olht-r to the extent of the
individual partner's interest in the ju<li,Mnrnt, in favor of the
partnership, on the ground of his insolvency ; W.itts ;•. Sayn',
76 Ala. 397. See Corwin r. Ward, 3.') Cal. 1 !>;'».

In order to justify an othcer in refusing to nisike the set-ofl of
executions of the res{)ective parties in his hands, it must appear
by his return, or otherwise, that the execution tii-st deliverctl
to him was assigned before the creditor in the second
became entitled to the sum due thrn'on. See Diinklee v. Locke,
13 Mass. .")2') ; I'rimm /•. Ransom. !<• .Mo. 444 ; Lrathcrs c. (^irr,
•J4 Mf. 351 ; New Haven Copper Co. v. Brown, 4«; Id. 4lH. In
New Jersey, the court has a broad eipiitable jurisdiction in
ordering one judgment to be set <»1T against another. It was
held that a decree in admiralty for a libellant, on a liUd for
damages in a federal court, may be set oft' against a judgment
recovered in the supreme court against the libellant, the parties
in the suits being the same ; Schautz v. Kearney, 47 N. J. Law
56. See Blackburn v. Kcilly, 48 Id. 82.

Where a federal court of ecpiity is asked to set aside the sat-
isfaction of a state' judgment at law or to determine eciuitable
defences to that judgment, as preliminary to a decree of set-off
against a judgmetit of the federal court itself, the parties will
be sent to a competent state court to settle the controversy,
the federal judgment being stayed ; Lauderdale Co. v. Foster,
23 Fed. Rep. ;",!(;.

Counter-claim. — A counter-claim is the creature of statute
or code. The term varies in meaning, but the general features
of the counter-claim are the same in all states which have
adopted it. It usually embraces both recoupment and set-off, and
secures to a defendant all the relief given at law, or in equity, or
by cross-suit, and includes liquidated or unliquidated damages ;
Clinton V. Eddy, 1 Lans. (N. Y.) 61 ; s. c. 54 Barb. 54 : Boston
MiUs V. EuU, 6 Abb. (N. S.) 319 : Waddell v. Darling, 51 N. Y.

ROSE V. HART. 1601

327 ; Jarvis v. Peck, 19 Wis. 74 ; Dietricli v. Koch, 35 Wis. 618 ;
Hay V. Short, 49 Mo. 139 ; Belleau v. Thompson, 33 Cal. 495 ;
Wiswell V. First Cong. Church, 14 Ohio St. 31 ; Slone v. Slone,
2 Met. (Ky.) 339 ; Campbell v. Routt, 42 Inch 410 ; Wilson v.
Hughes, 94 N. C. 182 ; Hurst v. Everett, 91 N. C. 399; Parsons
V. Sutton, m N. Y. 92 ; Grange v. Gilbert, 44 Hun 9. In other
states, it is employed for a similar purpose ; Russell v. Miller,
54 Penn. St, 154; Griffin v. Jorgenson, 22 Minn. 92; Bloom v.
Lehman, 27 Ark. 489. It must have existed for the defendant
against the plaintiff at the beginning of the action ; Orton v.
Noonan, 29 Wis. 541 ; Rickard v. Kohl, 22 Id. 506. In some
states the provisions are so broad as to allow in an action on
contract any other cause of action or contract, existing at the
beginning of the suit, to be set off as a counter-claim ; Wheelock
V. Pacific Gas Co., 51 Cal. 223 ; Griffin v. Moore, 52 Ind. 295 ;
Empire Co. v. Boggiano, 52 Mo. 294 ; Home v. Hoyle, 28 Fed.
Rep. 743 ; Church v. Speigelburg, 31 Id. 601. See Green v.
Willard Co., 1 Mo. App. 202. In other states any claim spring-
ing from the transaction named in the complaint may be set up
as a counter-claim, whether in test or contract ; Bitting v. Thax-
ton, 72 N. C. 541. See Eversole v. Moore, 3 Bush. 49 ; Norden
V. Jones, 33 Wis. 600 ; Hunt v. Chapman, 51 N. Y. 555 ; Allen
V. Maddox, 40 Iowa 124 ; Grange v. Gilbert, 44 Hun 9 ; Met.
Trust Co. V. Tonawanda, 43 Id. 521. In an action for rent the
lessee may set up, as a counter-claim, damages from breaches of
covenant in the lease ; Cook v. Soule, 56 N. Y. 420. See Mor-
gan V. Smith, 70 Id. 537 ; Orton v. Noonan, 30 Wis. 611 ; Hay
V. Short, 49 Mo. 139. But not wrongful acts, independent of
his obligation under the contract ; Edgerton v. Page, 20 N. Y.
281. Great latitude is allowed where the course of action set
up as a counter-claim is connected with the subject of the ac-
tion set forth in the complaint; Glen Manf. Co. v. Hall, 61
N. Y. 226. See Stoddard v. Tread well, 26 Cal. 294 ; Kisler v.
Tinder, 29 Ind. 270 ; Starbird v. Barrons, 43 N. Y. 200 ; Isham
V. Davidson, 52 Id. 237 ; McDougall v. Walling, 48 Barb. 364 ;
Curtis V. Barnes, 30 Barb. 225; Hicksville R. R. Co. v. Long
Island R. R. Co., 48 Id. 355 ; Woodruff v. Garner, 27 Ind. 4.
It is held in Oregon that in an action upon a contract for
money expended by a tenant in repairing a hotel, the owner
may show that the building was burned by the tenant's care-
lessness ; Zigler v. McClellan, 15 Or. 499. In a late case in

1602 ROSE V. HART.

California it is said that in an action on contract the defendant
may set up as counter-chiini a cause of action in his favor
against tlie plaintiff for a balance on an open, mutual, and
current account, although a prior ai;tion by him against the
plaintiff on certain items of the account is still pending. The
defendant need not dismiss the prior action, or elect between it
and the counter-claini ; Lindsay v. Stewart, 72 Cal. 540. See
Inslee v. Hampton, 8 Hun 230 ; Gillespie v. Torrance, 25 N. Y.
306, 308 ; Lowry v. Hurd, 7 .Minn. 356, 363.

It is a general rule, as in set-off, that the demand must be
against the plaintiff in the caj^acity in which he sues, and some
of the codes require that the demand must exist in favor of
the defendant, and against a plaintiff between whom a several
judgment might be had in the action. See Patterson v. Patter-
son, 59 N. Y. 574; McConihe v. Hollister, 19 Wis. 269 : Linn v.
Rugg, 19 Minn. 181 ; Thompson v. Sickles, 46 L;irb. 4i»: Home
V. Hoyle, 28 VM. Rep. 743; Paine v. Hunt, 40 H;ub. 75; Hill
V. Golden, 16 U. ^b>n. 551; Pendcrgast r. Greeniield, 4(» Hiin
494; Rcsch V. Senn, 31 Wis. I.'.S; Hiiin r. Newton, 30 id.
640; Quinn v. Smith, 49 Cal. 163; Burrage v. Bonanza (iohl
Mining Co., 12 Or. 169. But where one indebted to an estate
in the hands of receiver, executor, or trustee, is employed to
render services beneficial to the estate, the value thereof is a
proper counter-claim in an action to i-ecover the debt ; Davis v.
Stover, 58 N. Y. 473.

It has been held that usury cannot be set up as :i counter-
claim; Prouty V. Eaton, 41 Barl). 409. See Geenia r. Keah, ^)6
Id. 245, 249; McDonald v. Smith, 57 Vt. 502. If that which
is set up as a counter-claim on a contract, independent of the
contract declared U[)on, although closely connected therewith,
it is not available ; Loomis v. Eagle Bank, 10 Ohio St. 327 ;
Newkirk v. Neild, 19 Ind. 194. It has been held that an equi-
table defence, admissible in a state court, cannot be interposed
to an action at law in an action at law in the United States
Courts ; Church v. Spiegelburg, 31 Fed. Rep. 601. For cases
where it was held that a counter-claim was not admissible, but
that the remedy should be against executors or administrators
personally, see Gelshenen v. Harris, 26 Fed. Rep. 680 ; West-
fall V. Dungan, 14 Ohio St. 276. The late cases enforce the
rule referred to, that which is offered as a counter-claim must
have existed at the commencement of the suit; Mayo v. Davidge,

ROSE V. HART. 1603

44 Hun 342. See Drexler v. Smith, 30 Feci. Rep. 754. In
Texas if the suit is founded on a certain demand, the defendant
cannot set off unliquidated damages founded on the plaintiff's
tort or breach of contract; Riddle v. McKinney, 67 Tex. 29. In
Wisconsin, in an action for trespass upon land, a counter-claim
for taxes is not available paid by defendent while in possession,
believing that he was owner ; Davidson v. Rountree, 69 Wis. 655.

It is a general rule that a counter-claim must be set up in
the j^leadings ; Bates v. Rosekrans, 37 N. Y. 409 ; Steinhart v.
Pitcher, 20 Minn. 102 ; Wythe v. Myers, 3 Saw. 595 ; Stov/ell
V. Eldred, 39 Wis. 614 ; Quinn v. Smith, 49 Cal. 163. But see
Gilpin V. Wilson, 53 Ind. 443 ; McMannus v. Smith, Id. 211.
For a case which held that the answer did not make out a
counter-claim within the code, but a set-off, see Delahaye v.
Heitkemper, 16 Neb. 475, 480. Many of the codes provided
that if the counter-claim, as established, exceeds the plaintiff's
demand, the defendant must have judgment for the excess.
See Fettretch v. McKay, 47 N. Y. 426 ; Hay v. Short, 49 Mo.
139; Moore v. Caruthers, 17 B. Mon. 669 ; Brainard y. Lane,
26 Ohio St. 632.

By § 1059, cl. second, U. S. Rev. Sts., and by act of March 3,
1887, c. 359, 24 st. 505, § 1, cl. second, the U. S. court of claims
has jurisdiction to hear and determine " all set-offs, counter-
claims, claims for damages, whether liquidated or unliquidated,
or other demands whatsoever on the part of the government of
the United States against any claimant against the government
in said court." The provisions of this section have been held
to be very broad ; Allen v. United States, 17 Wall. 207, 5 C. of
Cl. 339 ; Macauley v. United States, 11 Id. 693 ; Bonnafon v.
United States, 14 Id. 493. As to " counter-claim," see further ;
Neitzey v. United States, 17 C. of Cl. 125 ; Brown v. District,
Id. 420 ; Betts v. District, 20 Id. 448 ; United States v. O'Grady,
22 Wall. 641, 8 C. of Cl. 451.

Recoupment. — The doctrine of recoupment " does not rest
on the nature of the right which a plaintiff has in the contract
which he seeks to enforce, nor on the fact that his interest in it
is the same at the time of suit brought as when it was originally
entered into. The essential elements on which its application
depends are two only. The first is, that the damages which
the defendant seeks to set off shall have arisen from the same
subject-matter, or sprung out of the same contract or transac-
tion as that on which the plaintiff relies to maintain his action ;

1004 ROSK V. HAKT.

the other is, that the ehiiiii for (lamages shall he apjainst the
plaintilT; so that tlieir allowauee hy way of set-off or defeiiee to
the coiitraet declared on shall operate to avoid circuity (»f action,
and as a suhstitute for a distinct action against the plaintiff to
recover the same damages as there relied on to defeat the
action." It was held that the case under consideration came
within the rule, as the claim of the defen«lant for damages
arose out of the note in suit, inasmuch as it rested on tiie in-
validity of the consideration for which it was given and the
fraud of the plaintift" in obtaining it ; Sawyer v. Wiswell, '.> Allen
8i>. See Harrington v. Stratton, 22 Pick. 510; Stacy v. Kemp,
97 Mass. 10*; ; Davis v. Bean, 114 1(1.358; Grand Lodge v.
Knox, 20 Mo. 438; Lufl.urrow <•. Henderson, 30 (Ja. 4H2 ;
Fowlrr V. Payne, 41* Miss. ;')2; Weaver r. Penny. 17 liiadw.
028; Hush r. Finucane, S Col. P.>2 ; James r. Duke, 7 Id. 2Sii ;
Prouty r. Five Thou.sand Staves, 21 Fed. Rep. 51X), 23 Id. loO;
('. Aullniaii iS: Co. v. Ca.se, 68 Wis. 012; (iilwon v. Carlin, 13
Tenn. 447; Davis r. Wait, 12 Or. 425; McAlester v. Landei-s,
70 Cal. 7lt : City Pank r. Smi.sson, 73 (Ja. 422. It has been
held that damages must be speeilically alleged so that the
|)laintifY may not be expo.sed to surprise at the trial; Holt i'.
Friederick, 50 Mich. 20; Whitworth r. Thoma.s, 83 Ala. 308.
See McKleroy v. Sewell, 73 (ia. 057. The want of nnituality is
fatal to the allow\ance of damages ; City Council r. Montgomery
Water Works, 70 Ala. 233. See Glover v. Ciore, 74 (ia. 080;
Savannah Pank v. Hartridge, 73 Id. 223. Preach of warranty or
fraud in the sale of personal property may be given in evidence
when specially set up in the defendant's answer by way of re-
coupment; Wentworth v. Dows, 117 Mass. 14. See Bradley v.
Rea, 14 Allen 20; Carey r. (niillow, 1(»5 Mass. 18; Owens v.
Sturges, 07 111. 306; Murray v. Carlin. Id. 280. That fraud is
an important element when the cf»nsideration consists of real
estate conveyed b)' deed with covenants of title, see Powley v.
Ilolway, 124 Id. 395. For cases where the causes of action
were independent and did not arise out of the same contract or
cause of action, so that recoupment was not permitted, see
Bartlett v. Farrington, 120 Id. 284; De Witt v. Pierson, 112 Id.
8 ; Brighton Savings Bank v. Sawyer, 132 Id. 185 ; Home Sav-
ings Bank v. Boston, 131 Id. 277; Smith v. O.sborn, 143 Id.
185 ; Keyes v. Western Slate Co., 34 Vt. 81 ; Samp.son v.
Warner. 48 Id. 247. A claim cannot be enforced by way of
recoupment which the defendants could not enforce by direct

ROSE V. HART. 1605

suit; McCarthy V. Henderson, 138 Mass. 310. "Recoupment
is contra-distinguished from set-off in these three essential
particulars : 1, in being confined to matters arising out of, and
connected with, the transaction or contract upon which the
suit is brought ; 2, in having no regard to whether or not such
matter be liquidated or unliquidated ; and 3, that the judgment
is not the subject of statutory regulation, but controlled by
the rules of the common law ; " Myers v. Estell, 47 Miss. 4.
In Sterling Organ Co. v. House, 25 W. Va. 64, 83, which, like
Myers v. Estell, gives a history of the subject, another difference
is stated, that "if the defendant's claim exceeds the plaintiff's,
he cannot in that action recover the balance which was due to
him." See Kingman v. Draper, 14 Bradw. 577 ; Fowler v. Payne,
52 Miss. 210 ; Batterman v. Pierce, 3 Hill 171. But see Spring-
dale Asso. V. Smith, 32 111. 252 ; Overton v. Phelan, 2 Head
(Tenn.) 445. There is a distinction between " recoupment "
and " counter-claim " dependent largely upon the definition of
" counter-claim " in codes or statutes ; Hurst v. Everett, 91
N. C. 399. See Thompson v. Mitchell, 74 Ga. 797. See
" counter-claim," supra.

Formerly, it was said that it was necessary that fraud should
be imputed to the plaintiff, but it is now settled that the doc-
trine is applicable where the defendant only complains of breach
of contract. See Myers v. Estell, 47 Miss. 4, 23 ; Batterman v.
Pierce, 3 Hill 171 ; Ives v. Van Epps, 22 Wend. 155. Recoup-
ment is favored rather than a separate action ; Martin v. Hill,
42 Ala. 275 ; Peck v. Brewer, 48 111. 54. Recoupment has been
allowed in assumpsit for breach of agreement to the effect that
the plaintiff has violated the same agreement; Fowler v. Payne,
49 Miss. 32 ; Andrews v. Eastman, 41 Vt. 134 ; Rogers v. Hum-
phrey, 39 Me. 382. So, too, for damages to the defendant by rea-
son of failure of plaintiff to keep his contract ; Eddy v. Clement,
38 Vt. 486. So, also, for damages to employer by want of skill of
one claiming to be a skilled laborer ; De Witt v. CuUings, 32
Wis. 298. Government duties may be deducted from the price
of goods which were to be delivered free of charge ; Fitch v.
Archibald, 29 N. J. Law 160. See Cassidy v. LeFevre, 45 N. Y.
562 ; Estep v. Fenton, 66 111. 467.

The claims need not be of the same character ; one in con-
trast may be set off against one in tort, and conversely, if they
arise out of the same subject-matter; Streeter v. Streeter, 48
111. 155 ; Waterman v. Clark, 76 Id. 428 ; Heck v. Shener, 4

160G KOSE V. HAKT.

S. & R. 249; Hopping v. Quin, 12 Wend. olT. See Carey v.
Guillow, 105 Mass. IH ; Hastings v. McGee, 06 Penn. St. 384.
And it is a general rule that damages may be recouped for any
breach of contract or failure on the part of the plaintiff to
carry out his agreement ; Gordon v. Bruner, 40 Mo. oTO ; Hill
V. Southwick, 9 R. I. 299; Lee r. Clements, 4H Ga, 128; Finney
V. Cadwallader, 5') Id. 7") ; Harralson v. Stein, 50 Ala. 347 ;
Pepper v. Rowley, 7:} 111. 2f)2: Scott v. Kcntoii, HI Id. 90;
Belden v. Perkins, 78 Id. 449 ; Williams r. Sihniidt, 54 111.205;
Mell V. Moony, 30 Ga. 413. Recoupment is often resorted to
in an action for services to show the plaintiff's negligence or no
beneficial service; Dodge v. Tilcston, 12 Pick. 328; Phelps v.
Paris, 39 Vt. 511; Sterrett v. Houston, 14 Tex. 153; Still v.
Hall, 20 Wend. 51. And in case of i-harter parties and in suits
by carriers for fieight; Hearse v. Ropes, 1 Spr. 331 ; Id. 301.

If the vendee fails in his contract, he cannot recoup for a
default of the vendor caused by such failure; Chapman v.
Dease, 34 Mich. 375. There is no recoupment where the dam-
ages are too remote : Turner v. Gibhs, 50 .Mo. 550. See Peck
V.Jones, 70 I\'nn. St. s;-) ; Johiisnn v. LIotTman, 53 .Mo. 504.
Damages to a lessee by tiespasses or tortious Ix'havior of the
lessor cannot be set oft" against the rent. See Hartlett v. Far-
rington, 120 Mass. 284; Cram v. Dresser, 2 Sandf. 120; Elliott
V. Aiken, 45 N. H. 30. Generally, as observed above, the claim
for damages must be against the j)laintiff, so that their allowance
shall operate to avoid circuity of action. See Cummings v. Mor-
ris, 25 N. Y. 625; Waterman v. Clark, 70 III. 428; Taylor r.
Hardin, 38 Ga. 577 ; Brown v. Crowley, 39 Id. 376 ; Stilwell v.
Chappell, 30 Ind. 72 ; Fessenden v. Forest Paper Co., 03 Me.
175. A party generally has his election to recoup or bring a
separate action ; Batterman v. Pierce, 3 Hill 171 ; Cook v.
!Moseley, 13 Wend. 277. And w'here one endeavors to recoup
and also rely upon a separate cause of action, he must usually
elect; Fabbricotti v. Launitz, 3 Sandf. 743. It is an almost uni-
versal rule that the right to recoup must be specially set up in
the defendant's answer; Hodgkins v. Moulton, 100 Mass. 309;
Birdsall v. Perego, 5 Blatchf. 251 ; People v. Niagara Common
Pleas, 12 Wend. 246. But see Springers. Dwyer, 50 N. Y. 19;
Babcock v. Trice, 18 111. 420. As a counter-claim, damages from
breaches of covenant in the lease ; Cook v. Soule, 56 N. Y. 420.
See Morgan v. Smith, 70 Id. 537 ; Orton v. Noonan, 30 Wis. Oil ;
Hay V. Short, 49 Mo. 139.

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