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 THE 
 
 LAW OF THE FAEM.
 
 THE 
 
 LAW OF THE FARM: 
 
 A DIGEST OF CASES, 
 
 AND INCLUDING THE 
 
 AGEICULTURAL CUSTOMS OF ENGLAND AND WALES. 
 
 By henry hall DIXON, 
 
 BARRISTER-AT-LAW, OF THE MIDLAND CIRCUIT. 
 
 dFbuvti) edition 
 By henry PERKINS, 
 
 BARRISTER-AT-LAW, OF THE MIDLAND CIRCUIT. 
 
 LONDON : 
 
 STEVENS AND SONS, 119, CHANCERY LANE, 
 
 1879.
 
 LONDON : 
 r.R.U)nURY, AC.NKW, & CO., IRINTERS, WHITEFRIARS. 

 
 4- 
 
 PEEFACE TO THE FOURTH EDITION. 
 
 I HAVE omitted from this Edition the Coursing Eules, the 
 Smithfiekl CUih and Agricultural Society's Laws, S^c, as not 
 being necessary to a work of this kind. 
 
 All cases interesting to Agriculturalists which have been 
 decided up to the present time have been added, and the 
 whole work has been revised. 
 
 HENRY PERKINS. 
 
 1, New Court, Temple, 
 December, 1878. 
 
 778813
 
 PEEFACE TO THE FIEST EDITION. 
 
 The present work is an attempt to draw together fur the first time 
 the principal legal decisions which bear upon the everyday incidents of 
 a farmer's life. In writing it, I have endeavoured, as much as possible, 
 to preserve the connection between the cases in each of the branches of 
 the subject, and to shoAV how one governed or modified the other. The 
 facts of the leading ones have been fully sketched out ; and I have also 
 quoted pretty diffusely from the judgments of the Bench. By reference 
 to the Addenda, it will be found that the cases have been brought 
 down to the end of Trinity Term ; and it was for this purpose that 
 the publication of the book was delayed to a very late period of the 
 legal year. 
 
 In order to meet the requirements of general readers, the cum1)ersome 
 case references have been kept out of the text, and confined solely to the 
 conventional table at the beginning of the work. 
 
 The chapter on Agricultural Customs, perhaps, calls for some slight 
 notice. I had originally intended to have based it almost solely on the 
 Parhamentary Report of 1848 ; but on putting myself into communica- 
 tion with the gentlemen who went before the Committee of the House 
 of Commons, they ahnost universally replied, tliat the principle they 
 then advocated had made so great an advance in ten years, that it 
 would be absolutely necessary to recast tlie abstract of their evidence. 
 The customs of Wales, and the other English counties which were not
 
 vi PREFACE TO THE FIEST EDITION. 
 
 examined into by that Committee, have been collected from the best 
 practical som'ces at my command ; and to the tiX'iitlemen who have so 
 nngiiidgingly lent me their assistance in the getting up of this very 
 arduous chapter, I beg to tender my most liearty thanks. The opening 
 of it was adopted almost word for word from the Keport itself, as I felt 
 it impossible to state the general principle in more concise or fairer 
 terms. 
 
 1 have thus endeavoured to supply what always struck me as a want 
 both in legal and country lil^raries, and I trust that I shall not be found 
 to have laboured in vain. 
 
 HENRY UALL DIXON. 
 Eldon CHAMKiiiis. Temple, 
 ^Itt'j. 7(h, 1858.
 
 CONTENTS. 
 
 CHAPTER I. 
 
 AGRICULTURAL CUSTOMS. 
 
 PAGE 
 
 Definition of Tenant right ^ 
 
 Agricultural customs in Bedfordshire 2 
 
 — Berkshire, Bucks, and Cambridgeshire '5 
 
 — Cornwall, Cumberland, and Westmoreland i — 5 
 
 — Derbyshire ....(' 
 
 — Derbyshire (North) '^ 
 
 — Devonshire and Dorsetshire 8 
 
 — Durham and Northumberland ^ 
 
 — Essex and Gloucestershire 10 
 
 — Hampshire and Hertfordshire ^ 1 
 
 — Hereford and Monmouthshires 12 
 
 — Huntingdonshire 1*^ 
 
 Kent 
 
 li— Ic 
 
 Lancashire and Cheshire 1^ 
 
 Leicestershire 1' 
 
 Lincolnshire (North) 1^ 
 
 Lincolnshire (South) 1" 
 
 Middlesex "^ 
 
 Norfolk 21 
 
 Northamptonshire 21 — 22 
 
 Northumberland, sec Durham — 
 
 Nottinghamshire 23 
 
 Nottinghamshire (South) 2-t 
 
 Oxfordshire 2o 
 
 Rutland and Shropshire 2G 
 
 Somersetshire 27 
 
 Staffordshire, Suffolk 28 
 
 Surrey 21) 30 
 
 Sussex '^l 
 
 Warwickshire 32 
 
 Westmoreland, sec Cuniljcrland — 
 
 Isle of Wight, Wiltshire 33 
 
 Worcestershire 34 
 
 Yorkshire, East Hiding 34 — 35 
 
 North „ ^ 36
 
 X CONTENTS. 
 
 PAGE 
 
 Agricultural customs in Yorkshire, West Eiding 37 
 
 — North "WVJ.es 38 
 
 — South 30—43 
 
 The Agi-icultural Uoldings Act, 1875 43—49 
 
 CHAPTER 11. 
 
 INTERESTS IN LAND. 
 
 Definition of interest in land I 50 
 
 Agreement for sale of root crops id. 
 
 — growing hops id' 
 
 — growing potatoes ol — 53 
 
 — growing fruit and vegetables 54 
 
 — growing timber 55 
 
 — growing imderwood . . . . . . . . . . 5G 
 
 — mowing grass id. 
 
 Agreement to give moiety of crops in lieu of rent 57 
 
 — for sale of groAving crop of grass 58 
 
 — — growing corn and profit of stubble 59 
 
 — — growing crops, when it confers interest in land . . . . CO 
 
 — — growing crops distinct from letting of land .... id, 
 
 — — crops and tillages 61 
 
 — with landlord to accept new tenant id. 
 
 — to suffer another to become tenant for residue of term . . . . 02 
 
 — to surrender interest in land id 
 
 — to occupy lodgings at a yearly rent 64 
 
 — to purchase milk-walk, with possession of premises .... id. 
 
 — by parol to give up possession of premises 65 
 
 — by tenant to pay landlord for consent to assignment of term . . 66 
 
 Right to take water from well as tenant id. 
 
 Agreement by landlord to supply complete furniture id. 
 
 — by outgoing tenant to leave fixtm'cs G6 
 
 Payment of legacies out of sale of growing crops (17 
 
 Easement of " grass for a cow " creates no interest in land id. 
 
 Indivisible contract for interest in land id. 
 
 Contract by parol to live at boarding-house 68 
 
 Mortgagee of tenant's fixtures has an interest in hui<l id. 
 
 CHAPTER III. 
 
 EASEMENTS. 
 
 Definition 70 
 
 Presumption of grant of, how established id. 
 
 Ilight of way, definition of id. 
 
 — pas.sagc of water . id. 
 
 Claim of right to make drain over land of another irf. 
 
 License to stack hay 71
 
 CONTENTS. 
 
 XI 
 
 land of anothtT 
 
 License to stack coals it 
 
 — irrevocable, though granted by parol 
 
 — — to enter upon land 
 
 — definition as to how determined .... 
 
 — by parol to put in a light cannot be recalled at pleasure 
 
 — to divert water 
 
 Claim to spring of water 
 
 Verbal license not sufficient to convey easement of drain over 
 Exclusive right to sewer made under power reserved 
 License to make reservoir for dye-water and soke . , 
 Unity of ownership destroys prescriptive right 
 
 — of possession 
 
 Stopping up windows ^;7'i?)ia/«cw abandonment 
 
 Obstruction of ancient lights 
 
 Right to use running water 
 
 — to dig sand, clay, or turves 
 
 — to take water from well 
 
 Easement may be claimed by custom . . .' . 
 Right to take pot water 
 
 — water cattle 
 
 Custom to take pvoflt in alieno solo bad .... 
 Right of free miners 
 
 — owner of surface to support of underground strata 
 
 — to work mines is an incident to grant of mines 
 Jlaim of prescription stat. 2 & 3 Will. IV., c. 71 
 
 — of right to easements 
 
 Plea of forty years' user 
 
 Continuous enjoyment to easement 
 
 Enjoyment of easement as of right 
 
 Right to dig clay for forty years 
 
 Proof of user of right of common of pasture 
 
 Right of common of pasture for pigs 
 
 Privilege of washing sand, &c., dislodged from tin mine . 
 
 Immemorial right of way not lost by non-user .... 
 
 Presumption of abandonment not to be made from mere non-user 
 
 Parol agreement for substitution of new way no evidence of abandonment 
 
 Annexation by vendor of rights connected with land . 
 
 Way of necessity 
 
 — cannot be pleaded without showing its character 
 
 — effect of unity of possession , . , . 
 
 — law as to . 
 
 — definition of ...... • 
 
 — limited by necessity which created it 
 
 — arises from presumed grant .... 
 
 — right of, can only arise by grant 
 Limited dedication of way to the pul/lic . 
 Valid dedication to the public now made 
 Right of way for agricultural purposes 
 
 — to cart awav timber
 
 xii CONTENTS. 
 
 PACK 
 
 PrcscriptiTC right of way for all manner of carriages !)2 
 
 Claim of way for cattle and carts how proved 93 
 
 riea of rig!it of way for horses, waggons, &c id. 
 
 Kight of way for farming purposes does not include all purposes . . . id. 
 
 — of road for tithes id. 
 
 — grantee of an occupation way id. 
 
 Obstruction of public footwa.y 'Ji 
 
 Ploughing up public foot[)ath id. 
 
 Erecting gate across public footpath id. 
 
 Kercrsiouer cannot bring action for simple trespass id. 
 
 Injury must be permanent to enable reversioner to maiutaiu action . . 95 
 
 Action by reversioner for chaining gate id. 
 
 Chaining and locking gate might damage reversionary estate . . . .id. 
 
 Free passage of air to windmill id. 
 
 Prescriptive right to light for windows 96 
 
 Twenty years' enjoyment of light 97 
 
 Ancient lights may be altered Imt not enlarged id. 
 
 New lights not corresponding with old 98 
 
 Eight to dig brick earth id. 
 
 Custom to dig clay in a copyhold not unreasonable id. 
 
 Definition of surface damage 99 
 
 Support to land from drowned mine 100 
 
 Eight of owner to dig minerals on lauds adjoining railway .... id. 
 
 Owner of ancient house entitled to lateral support of neighbour's land . . id. 
 
 Damage to surface of land id-. 
 
 Compensation for damage by subsidence of soil 101 
 
 Eight acquired by house after twenty years' uninterrupted enjoyment to 
 
 lateral support of soil id. 
 
 Prescriptive right to three-fourths of a right of common id. 
 
 Evidence of existence of highway id, 
 
 — of user and dedication id. 
 
 Free right of public to enjoyment of highway 102 
 
 Right of owners to enclose part of highway id- 
 
 — justices to determine highway id,. 
 
 Distinction between private and public w;iy 103 
 
 Duty of surveyor to protect footways id'. 
 
 •Surveyor of highways, liability of, for accident for iiuii-rcpair of ... id. 
 
 Presumption of property in private way id. 
 
 Eight of way appurtenant to plot 101 
 
 Implied grant of way of necessity i'^- 
 
 When close of land adjoins highway, half the highway presumably passes with 
 
 the close vL 
 
 ilap when inadmissible "^• 
 
 Order of justices to stop highway implied by non user of iiighway . . . 105 
 
 Power of Inclosure Commissioners to set out private road .... id. 
 
 Appropriation of private way id- 
 
 Eight of way under deed uf paitition id. 
 
 Dedication of private road to i)ublic, evidence of 106 
 
 Merc tracks no proof of highway id.
 
 CONTENTS. xiii 
 
 PAGE 
 
 Selling one part of settled estate to pay for making roads through another 
 
 pai't lOG 
 
 Ploughing up foot-paths, penalty for /,/_ 
 
 Discharging eaves water on reversioner's land ]07 
 
 llulc as to going 100 yards through turnpike-gate /,/. 
 
 CompositloQ of tolls by lessees /,/. 
 
 Construction of " other thing ■' in Turnpike lloads Act 7,/. 
 
 CHAPTER IV. 
 
 TREES AND FENCES. 
 
 General property in trees and bushes . . . , . . . . 109 
 
 Exception of trees in lease jV^, 
 
 Meaning of " woods and underwoods " ^•f/. 
 
 General demise of land with timber trees id^ 
 
 Covenant not to lop or top trees •■•'..... id. 
 
 Property in timber \\q 
 
 Eight to timber when severed /j_ 
 
 — of lord to fallen rocks /,;_ 
 
 Action of waste for felling timber 7^_ 
 
 Plight of tenant for life to sell growing timber without impeachment of waste 111 
 
 — of tenant for life to cut ripe timber ,-,;_ 
 
 Tenant for life barred by lapse of time from receiving proceeds of timber cut 
 
 by previous tenant ••••....., id 
 
 — permissive waste by . . . . . . , , _ . . 112 
 
 Prohibition against cutting timber jYZ. 
 
 Definition of timber ^Y^ 
 
 Plight to repair fences in churchyards II3 
 
 — to trees in churchyards ^^^^ 
 
 Cutting down ornamental trees by devisee in fee 2W, 
 
 Claim of right to enter a close and cut down trees ,V?, 
 
 P.ovTghs overhanging land a nuisance \\^ 
 
 Taking timber for house-bote ^j 
 
 Conversion of timber trees " ^Y/ 
 
 Custom of copyholders to fell timber ,7^ 
 
 Cutting down trees in order to work quarries Ij-, 
 
 Trespasser cutting timber by collusion with tenant ./(/_ 
 
 Trustees cannot bring trover for trees felled ^7; 
 
 Lessor may bring trover for bark of trees cut ^^^ 
 
 Interest of lessor and lessee in trees ^^Z 
 
 Lessee has general property in trees not timber Ug 
 
 — may claim dotards if thrown down by tempest i^ 
 
 Exception of bushes and thorns necessary for repair of fences . ... id. 
 
 Tenants in common of a tree, their rights ^^i 
 
 Rule as to property in a tree 227 
 
 Definition of timber trees 2is 
 
 Saleable underwoods, larch not 2iq 
 
 Hating of salealile underwoods ,^-^^
 
 .;iv CONTENTS. 
 
 PACE 
 
 Ratins; of copvolitcs 1-0 
 
 lujimction against tenant for life for ciiUini:; uiulorwuod of au insiinicicnt 
 
 growth 121 
 
 Applc-faim lease id. 
 
 Right of nurseryman to remove trees 122 
 
 Definition of "waste" as applied to trees id. 
 
 Cutting down willow trees to the butt ?'rf. 
 
 Pollard willows not timber 123 
 
 Cutting ash poles id. 
 
 Tenants' rights to dotards ... 124 
 
 Covenant not to grub trees 125 
 
 Tenant jio right to remove box edging though planted by liimself . . . id. 
 
 Cutting down avenues id. 
 
 Ornamental timber . . . 1 26 
 
 Proceeds of timber which required felling on life estate id. 
 
 Timber cut for necessary repairs 127 
 
 Entry by landlord to cut timber id. 
 
 Aggravated trespass by such entry . . . id. 
 
 Measure of such damages id. 
 
 Rule of standing trees id. 
 
 Entire timber contract 129 
 
 Delivery and acceptance of timber under Statute of Frauds . .. . . 130 
 
 Property in hedge and ditch 131 
 
 Presumption of ownership of ditch id. 
 
 Ditch considered a fence under general Enclosure Act 132 
 
 Law of ditches id. 
 
 Duty of occupier to repair fences id. 
 
 No obligation to fence, when 133 
 
 Repairing private road id. 
 
 Liability to repair highway 134 
 
 Obligation to fence id. 
 
 Escape of cattle into field for want of fences 135 
 
 Clipping hedge by one tenant in common . . . • . . . , id. 
 
 Ride as to hedge-cuttings 136 
 
 Stealing or injuring trees, &c id. 
 
 Malicious injuiy to vegetaVjles, kc 137 
 
 Obligation on occupier to fence dangerous places -.id. 
 
 Liability of canal company to fence otf canal near public footway . . . 138 
 
 Injury to horse through bad fence . . . id. 
 
 Horses killed by fall of haystack 139 
 
 Liability to maintain fences generally id. 
 
 — by railway companies 140 
 
 Planting trees adjacent to highways 141 
 
 Penalty for riding on footpath id. 
 
 Cutting hedges by surveyors 142 
 
 Power of fc-urveyor to take down fence id. 
 
 Properly in waste land adjoining road 143 
 
 Cattle straying on highway 144 
 
 Railway fences id,
 
 CONTENTS. XV 
 
 PACK 
 
 Obligation of ra,il\vay companies as to gates 145 
 
 — of company to fence 146 
 
 Their liability as to level crossings 147 
 
 Cattle straying on raliway througli station yard 148 
 
 Liability to maintain fence between railway and highway . . . .140 
 
 Occupation road across railway ITtO 
 
 Railway companies not bound to fence one part of premises from another . . 152 
 
 Neglect to fasten railway gate id. 
 
 Company bound to leave gate on their line shut id. 
 
 Sheep killed on railway 153 
 
 Horse grazing on roadside . 154 
 
 CHAPTER V. 
 
 DANGEROUS ANIMALS. 
 
 Scienter 155 
 
 Keeping savage boar icl. 
 
 Ferocious dog 156 
 
 Railway company not liable for acts of stray dog on their premises . . . id. 
 
 Habits of dogs dangerous to defendant's knowledge id. 
 
 Evidence of dogs being wont to attack men not sufficient to support scienter 
 
 as to sheep 157 
 
 Sheep worrying 158 
 
 What is evidence of scienter for jury . 159 
 
 Bull running at " something red " 160 
 
 Caution from owner of dog ..,.,.,.,,. id. 
 
 Evidence that dog had been bitten by a mad dog id. 
 
 Shooting dog when justifiable 161 
 
 Right to keep dogs loose for protection of property id. 
 
 Keeping ferocious bull 162 
 
 Obligation of owner of vicious animal 163 
 
 Injury by dog chained up to person lawfully on premises . .... id. 
 
 Keeping watch-dog in walled garden ........ 164 
 
 Bear tied up by too long chain id. 
 
 Lack of caution in person bitten 165 
 
 Dogs frightening horses id. 
 
 Scienter put in issue by plea " not guilty " 166 
 
 Putting scienter in issue . . . . . . . . . . . 167 
 
 Depasturing a vicious horse id. 
 
 CHAPTER YI. 
 
 WATER. 
 
 Lands formed by alluvion on sea-shore 16S 
 
 — gained from the sea id. 
 
 Incidents of the sea-shore 169 
 
 Property in accretions fi'om a non-navigable river , id.
 
 XVI 
 
 CONTENTS. 
 
 Grant to pass coal under fovc-shorc . 
 
 VvoYtorty ad im-dium fhim aqucc .... 
 
 Ki<rht of fishing passes by t,n-ant of water 
 
 Sliirlit (livei-sion of stream 
 
 Ikight of riparian owners to water 
 Water tiowins in a stream is publu-i jiirix 
 Appropriation of running water 
 liijrht to water not in a llowinpc stream 
 Law of rii^ht to a spring of water 
 
 — as to llowing water 
 
 Plight to sink wells 
 
 Abstraction of subterranean water 
 
 Uights of riparian owners 
 
 Cutting oil spring at source .... 
 
 L.aw as to ai'tificial water-courses 
 
 Flow of water from and into collieries 
 
 Presumptive right to pollute water , 
 
 Plight of pollution subject of grant 
 
 Pollution of stream to the injury of cattle 
 
 Difference between di-ain and water-course . 
 
 Flow of water from drain for agricultural improvements 
 
 Ilight to artilicial water-com'se 
 
 Flow of liquid manure into neighbour's field . 
 Unqualified right of owner to drain 
 
 Eights as to rain-water 
 
 Surface water 
 
 Irrigation or riparian right .... 
 Diversion of water for irrigation .... 
 
 Plights derived from deed 
 
 Irrigation by artificial dam 
 
 Crossing another's land for purposes of irrigation 
 
 Irrigation by artificial cut 
 
 Injury to reversion by diverting stream . 
 Water escaping from railway-cuttings into mine 
 Working mines under water-course . 
 Supplying horses from public fountain 
 Conveyance of right to culvert .... 
 Compensation to tenant for life for loss of pond . 
 
 CHAPTER VII. 
 
 SERVANTS. 
 
 Hiring on Sunday 199 
 
 Contract may be qualified id. 
 
 Temporaiy illness of servant id. 
 
 Express or implied bargain for service id. 
 
 Forfeiture of ways by misconduct ,..,,,.,, 200
 
 CO:^ TENTS. XV ii 
 
 I'AaE 
 
 CJcneral luring of agricultural labourer 200 
 
 Jurisdiction of magistrates to discharge 201 
 
 iVfaster and Servants Act, conviction under id. 
 
 Huntsman a servant id. 
 
 Contract for year's service 202 
 
 Dismissal of servant 203 
 
 Contract for service for more than a year id. 
 
 Hiring by parol . 204 
 
 Jurisdiction of justices as to bailitfs 205 
 
 Bight of servant to quit ........... 200 
 
 Contract of service not necessarily fur specific time ...... id. 
 
 jMonthly servants •. . . id. 
 
 Gardener, a menial servant . . . . . . . . . . . ' id. 
 
 TriTckAet 207 
 
 Settlement by hiring and service 208 
 
 Breach of contract with shepherd id. 
 
 Bailiff entitled to notice id. 
 
 Bailiff not a partner 209 
 
 Bailiff not authorised to draw bills or plcdgQ credit of master . . . . id. 
 
 Bailiff's power to bind master by contracts 210 
 
 Master's liability for act of servant 211 
 
 Veterinary surgeon liable for negligence of servant 213 
 
 Liability for letting out bad thatchcr id. 
 
 Master liable where servant drives his own horse in master's service . . 21-1 
 
 One man may drive two carts id. 
 
 Servant killed by negligence of another id. 
 
 No contract by master not to expose servant to risk 215 
 
 Master liable for injury to servant id. 
 
 Injury to stranger by negligence of fellow servant 217 
 
 Injury to servant helping servant id. 
 
 Proof of well-defined negligence required id. 
 
 Master liable for wilful conduct of servant id. 
 
 Injury to servant by negligence of fellow servant 218 
 
 Injury to servant using machine /(/. 
 
 Injury to servant from unsafe ladder 219 
 
 Servant going indirect road .......... id. 
 
 Servant using master's cart without leave id. 
 
 Liability of master defined 220 
 
 General rule of law respecting negligence 221 
 
 Liability of master for debts contracted by servant 222 
 
 Cheating by dairymaid . . . 223 
 
 Milk-carriers' agreement id. 
 
 Larceny by farming servants .......... ?'(7. 
 
 Fraudulent drover 22J: 
 
 Larceny by drover _ . . . . 225 
 
 Embezzlement by servant id. 
 
 Fraudulent drover 22G 
 
 Larceny by pig-jobbers • .... id. 
 
 Pig-jobber, servant, or bailee . . • • • 227 
 
 b
 
 xvi;i CONTEXTS. 
 
 PAGE 
 
 Employment of licen*C(l drover 228 
 
 Drover's presumed authority to f^ell 229 
 
 Liability of salesman's book-keeper 230 
 
 CIIArTEll Vlll. 
 
 CO^'VEYAXCE OF HORSES AND CATTLE. 
 
 Loss on board bbip 231 
 
 Mortality, meaning of . id. 
 
 Xccligencc of owners of ferry 232 
 
 Eailway Clanscs Consolidation Act id. 
 
 Liabibilty of railways at eommon law id. 
 
 Lialiility, restriction of, by bookin.ff-ticket 2H3 
 
 Injiny to horses on railway 234 
 
 Injuiy to cattle .' . 235 
 
 — truck taking fire 237 
 
 — through gross negligence 238 
 
 — through collision 2-tO 
 
 Construction of conditions on ticket ^ 211 
 
 1 Jail way and Canal Traffic Act 242 
 
 Just and reasonable contract id. 
 
 — what is for the court 244 
 
 Horse left in siding all night . 245 
 
 Cattle suffocated in van 24(5 
 
 Injury to horses placed in cattle-truck ■ 247 
 
 Dogs within traffic act 249 
 
 Contract with first railway does not make second railway liable . , , 2al 
 
 Crowding cattle without leave in truck by another id. 
 
 Hallway must Vjc sued within county court disdict fif ]iriHcipal |)l:ice of 
 
 business . . id. 
 
 Estoppel by false statement of owner id. 
 
 Conditions by railways must be reasonable 252 
 
 Injury to cow on railway id. 
 
 — horse saddled and bridled id. 
 
 Cattle dealers travel at their own risk 253 
 
 Detention of horse by livery-stable keeper id. 
 
 Unreasonable conditions 254 
 
 Injury to race-horse, damage limited to £50 -id. 
 
 — valuable greyhound id. 
 
 Delay in forwarding pigs 255 
 
 — cheese 257 
 
 I'ig case id. 
 
 Delay Ijy fall of snow 259 
 
 Hire of sacks 2G0 
 
 Great Northern Railway conditions 2GJ 
 
 Private sack companies 203 
 
 Giving notice to consignor of consignee's refusal to receive .... id. 
 
 Delivery of goods within reasonable time 204 
 
 Improperly securing dog . . , id.
 
 CONTENTS. 
 
 XIX 
 
 CHAPTER IX. 
 
 DISTRESS. 
 
 General principles of distress .... 
 Leaving sheep in highway ..... 
 Things in manual use not distrainablc 
 Distraining cattle not in locus in quo . 
 Uemise of a dairy ...... 
 
 Escape of a distress 
 
 Duties of pound-keejier . . ... 
 
 — hayward 
 
 Treatment of animals in pound .... 
 Conviction of persons releasing impounded animals 
 Tender of amends when not too late . . 
 
 — of rent, proper person to receive 
 
 — — sufficient amends .... 
 Onus of estimating amount of damage . 
 Detaining cattle after tender .... 
 
 — goods .after tender of rent 
 Distraining cattle of stranger for rcut-charge . 
 
 — agisting 
 
 Sale of tenant's goods under bill of sale . 
 Implied promise by landlord not to stop sale 
 Agreement to take interest on rent in arrear . 
 Bill of exchange by tenant to agent 
 Authority by landlord to distrain 
 
 Bailiff distraining wrong sheep . . . . 
 Payment of rent under distress not admission of title 
 Trespass maintainable after tender . 
 
 Statute of Uses 
 
 Recovery of rent-charge by distress . 
 
 Distress not an inseparable incident to rent-service 
 
 — by law 
 
 — illegal at improper time .... 
 
 — improper working of ... . 
 
 — after death of tenant 
 
 — open field sufficient pound for 
 Inventory taken an impounding .... 
 
 Distress, time for making 
 
 Fraudulent removal of goods by tenant 
 
 Duty of distrainer as to goods unsold 
 
 What goods may be distrained . . . • 
 
 Distraining implements of husdandry 
 
 — beasts of plough 
 
 — sheep of third person .... 
 Tithes can only pass by deed .... 
 Distress illegal after determiaation of tenancy . 
 
 PAGE 
 
 205 
 266 
 id. 
 id. 
 267 
 id, 
 268 
 269 
 
 id. 
 270 
 
 id. 
 271 
 272 
 273 
 274 
 
 id. 
 275 
 
 id. 
 276 
 
 id. 
 277 
 
 id. 
 278 
 
 id. 
 
 id. 
 279 
 280 
 
 id. 
 281 
 
 id. 
 
 id. 
 282 
 
 id. 
 283 
 
 id. 
 284 
 
 id. 
 285 
 
 id. 
 286 
 
 id. 
 287 
 288 
 
 id.
 
 XX CONTENTS, 
 
 PAGE 
 
 Broach of covenant not to underlet 2SS 
 
 Distress by joint-tenant of reversion i'l. 
 
 Action for rent by tenants in common 289 
 
 Unilerlessce's power to distrain id. 
 
 Demise by a tenant from year to year . . . id. 
 
 Increase of rent does not create new tenancy 290 
 
 Distress on away-going crops id. 
 
 Operation of statute of 8 Anuc id. 
 
 Distrain of growing crops 291 
 
 — Lay, corn, in stacks , . . . . id. 
 
 Distress by grantee of rent-charge 292 
 
 Seizure of crops under ^fi.fa id. 
 
 I^aw as to scii^nre of growing crops 293 
 
 l^imagcs nominal where crops sold for full \aluc 29-1 
 
 Goods sold without ajipraisoniont id. 
 
 Goods in cuslodid Icgis . . . id. 
 
 Construction of statute 8 Anne ... 295 
 
 Irregular distress 29G 
 
 Distrain of privileged goods 297 
 
 Ecmedy for excessive distress id. 
 
 llcplevin when maintainable 298 
 
 Sale of farming stock taken in execution id. 
 
 Sale of hay and straw to be consumed on premises id. 
 
 Custom of country as to consumption of hay and straw 2_99 
 
 Unreasonable distress - . . . 300 
 
 Excessive distress 301 
 
 Implied warranty of title id. 
 
 Non-delivery of goods sold at sheriff's sale 302 
 
 Second distress when unlawful id. 
 
 Unregistered transfer of growing crop good against execution creditor . . 303 
 
 No interpleader where claim is for rent id. 
 
 Distress an affirmation of tenancy id. 
 
 Sheriff not entitled to poundage when proceedings set aside .... 804 
 
 Trespassers at i;'/u7/o id. 
 
 Distress no waiver of breaches of covenant 305 
 
 CHAPTER X. 
 
 HUSBANDRY COVENANTS— CUSTOM OF THE COUNTEY. 
 
 Promise to farm in a husband-like manui-v imiilicd 306 
 
 Torts which die Viith the jierson 307 
 
 Acts of waste id. 
 
 Breaking up ancient meadow 308 
 
 Covenant to manage pasture id. 
 
 Conversion of pasture into arable id. 
 
 Sowing clover or common grass seed does not make permanent meadow . id. 
 
 Bight of lessor to sue for waste 309 
 
 Bight of reversioner. to prevent waste id.
 
 CONTENTS. 
 
 XXI 
 
 Injunction to prevent mustard seed or flax from bein 
 
 Plor.gbiug up ancient meadow . 
 
 Kights of incumbent as to glebe land , 
 
 Breaking up rabbit warren 
 
 Covenant to repair hedges 
 
 Cutting poles for fencing .... 
 
 I'arol agreement for lease 
 
 Encouraging improvements under bad lease 
 
 Penalties for ploughing up pasture 
 
 — sowing noxious plants 
 Claim for additional rent 
 Penalty for underletting . 
 
 — cross-cropping .... 
 Covenant to fallow a certain quantity 
 
 — spend a certain sum in mauiu'e . 
 
 — keep buildings in repair . 
 Overcropping not waste 
 Custom of the country 
 Removing hay from farm 
 Allowance for lasting improvements 
 Claim for thatching .... 
 Paying for tillages .... 
 
 — custom of the country as to 
 Ecmedy against assignees of reversion 
 Plight of tenant to away-going crop 
 
 — to compensation for tillages, &c. 
 Outgoing tenant must give up possession 
 
 — 's corn may be distrained after exp 
 llight of outgoing tenant to away-going c 
 Sowing odd mark .... 
 Award when evidence .... 
 Assignment of tenant right 
 Custom of country excluded by lease . 
 
 — let in by omission in lease 
 
 — to leave manure .... 
 Compensation for seeds and labour . 
 Stipulations in lease as to mode of quittin 
 Covenant to consume hay and straw . 
 
 — not to sell hay .... 
 Consumption of straw by incoming tenant 
 Covenant not to carry away hay under jJCULdty 
 Play, deiinition of ..... • 
 Construction of draining covenant 
 Compensation to outgoing tenant 
 
 — for drainage 
 
 — for maniu'c ...... 
 
 Payment by landlord for manure and tillages 
 
 Valuation of tillages 
 
 Appraisement stamp when sufficient . 
 
 .0 landlord . 
 ration of term . 
 op 
 
 PAGE 
 
 3oa 
 
 id. 
 310 
 
 id. 
 
 id. 
 311 
 
 id. 
 312 
 
 id. 
 313 
 314 
 
 id,. 
 
 id. 
 
 315 
 
 id. 
 
 id. 
 
 id. 
 
 id. 
 316 
 
 id. 
 317 
 
 /(/. 
 318 
 319 
 
 id. 
 320 
 321 
 
 id. 
 
 id. 
 322 
 
 id. 
 323 
 
 id. 
 
 id. 
 324 
 
 id. 
 325 
 326 
 327 
 
 id. 
 
 id. 
 328 
 
 id. 
 329 
 
 3:";o 
 
 id, 
 031 
 332 
 
 id.
 
 xxn 
 
 CONTENTS. 
 
 ^'alucr of ccclcsiivstical property i . . 
 
 — when fundus ojficio . . . . .. 
 
 Fair valuation or consuming price 
 
 FotUlcr price oj* consuming price . . . . 
 
 I'riuging value of straw back in manure . 
 
 Cleaning of " value " of straw . . . . 
 
 Soiling straw without written licence 
 
 Manure assignable by the tenant . . . . 
 
 •' Manme made on form," definition of 
 
 Right of outgoing tenant to outstand for manure 
 
 Covenant to bring manure for liny gold . 
 
 Agreement to sell manure 
 
 t>trcet sweepings exempt from toll 
 
 Uucmshcd bones 
 
 Toll exemptions 
 
 Thrashing machines irajjlemcnts of husbandry 
 
 — not liable to pay toll .... 
 
 — may be liable by local act . . . . 
 
 CHAPTER XL 
 
 TRESPASS AND GAME. 
 
 r.ight to bring trespass 
 
 Possessory right sufficient to maintain trespass 
 
 Eight of churchwardens and overseers to maintain trespass 
 
 — to dig turf and peat 
 
 Plea of not guilty to trespass .... 
 
 Plight to glean 
 
 Trespass for working an cstray 
 
 — breaking a dovecote 
 
 Pigeons subjects of larceny .... 
 Larceny of bees and swans . . . . , 
 I'osscssion, legal possession against trespassers 
 Entiy l)y lord of manor .... 
 
 Inclosure part of holding 
 
 Incroachmcnts by tenants on waste 
 
 Plight of Inclosure Commissioners to enter land 
 
 Right to waste land 
 
 Trespass maintainable liy pnrchafer of growing crop 
 
 — on subsoil ....... 
 
 — docs not lie for entering a close to retake goods wrongfully brought 
 
 there 
 
 — action by reversioner for .... 
 
 — (fc bonis 0Ji2KrUdiii by auctioneer 
 
 — plea of leave and licence in . . 
 
 — for liorsc-racing 
 
 Trespasser's right of action for injury . 
 Excavation near foot-wav . . . 
 
 id. 
 3-18 
 
 id. 
 M^ 
 
 id. 
 
 id. 
 .",.-)0
 
 CONTENTS. 
 
 Accident tbrough superior agcnc}' . 
 
 Tre.s2Dass against surveyor of highways 
 Waterwork company's rights to dig footway 
 Rights of public company , . 
 
 Plea of Ubcrum tcncmcntum .... 
 Trespass for continuing building on land 
 
 — after notice ..... 
 
 — certificate of costs in action for 
 Remedy for continuance of nuisance 
 Nuisance by burning bricks near house 
 Reasonable use of right to carry on trade 
 Placing materials on a prirate road . 
 IMeasure of damages for removing soil . 
 Reasonable use of right of v^^ay 
 Trespass by breaking locks and chains 
 Estoppel of tenant from denying landlord's title 
 Rights of permissive tenant .... 
 Forcible entry on common of pasture 
 Construction of malicious trespass 
 
 Damages for trespass 
 
 Unlawful entry to remove crops , 
 
 Herbage set on fire by sparks from engine 
 
 Fire caused by sparks from railway engine . 
 
 P'ire by spontaneous ignition of hay-rick . 
 
 Careless burning of weeds .... 
 
 Laying poisoned corn for poultry 
 
 Horses frightened by traction-engine . . . • 
 
 * Proof of negligence necessary to entitle plaintilf to recover 
 Negligent riding on highway . . 
 
 Nuisance by brick-burning 
 
 Carrying on trade in reasonable manner 
 
 Brickmaking not a noxious trade 
 
 No notice necessary to trespassers ..... 
 
 Provisions against trespassers do not apply to fresh pursuit of g 
 Reversioner cannot apprehend trespasser .... 
 
 Mesh, definition of 
 
 Right to follow fox 
 
 Law as to hunting trespass . . . • 
 Inciting friends to commit trespass 
 Trespass in defiance of notice .... 
 Right of property in " Hare "... 
 No action lies for involuntary trcspasii 
 Trespass by dog against master's will . 
 Shooting dog chasing deer .... 
 
 Taking dog damage feasant 
 
 Deputation by stat. 1 & 2 Will. lY. to teize dogs 
 Poacher cannot give e\-idence for himself . 
 Conviction under 'J Geo. IV. c. ('>D 
 Non-entry of some of poachers on lantl
 
 XXIV 
 
 CONTEJvTS. 
 
 Sending dog vn land an entering 
 Trespass by shooting from highway . 
 Eight to kill game exercised for seven years 
 Servant no authority to apprehend poachers 
 rrosecutions under 1 .*c 2 WiU. IV., s. ;52, must be 
 
 year 
 
 Eights of gamekeepers to apprehend poachers 
 Owner of hind need not prove non-permission 
 
 Apprehending trespasser 
 
 I'oaehcr damaging fence ..... 
 Forcible rescue from unlawful custody 
 Liability for costs of persons jointly convicted 
 Taking hares or rabbits l>y night 
 Occupier's right to kill hares 
 Form of authority to kill hares 
 Taking game on Sunday or Christmas Day . 
 Eeasouablc time for keeping game after season 
 Eight to deal in live pheasants 
 Tame pheasants subjects of larceny . 
 Tame deer in park personal property . 
 Trespass for entering fishery .... 
 Conviction for using a trap for game . 
 
 Setting net on waste 
 
 Shooting hare in turaipike road 
 Shooting pheasant on another's land 
 Frightening grouse with fireworks 
 I'oachcrs found with rabbits on highway 
 
 Claim of right to kill game .... 
 
 ricking up pheasant on another's land 
 
 Conviction for trespass 
 
 Ee-taking rabbits from poachers 
 
 Property in rabbits 
 
 Eight of tenant to kill rabbits .... 
 
 Labourer taking rabbit by order of farmer . 
 
 Bond fide assertion of right .... 
 
 !Mcre vague belief of right .... 
 
 Ousting justices jurisdiction .... 
 
 Young pheasants in coop under hens not game 
 
 Tame deer in park personal property 
 
 Lord of manor's exclusive right to f-port 
 — not entitled to shoot over commons 
 
 Assessment of land without game 
 
 Orant of liberty to sport 
 
 Ecservalion of game by lessor 
 
 Grant of free liberty to spoit a license of pnlit 
 
 Franchise of free warren .... 
 
 EcKjks. /c/Yc natuno 
 
 Shooting near decoy 
 
 Liberty to kill rabbits with ferrets only . 
 
 commenced w 
 
 ithiu a
 
 CONTENTS. 
 
 XXV 
 
 Ivcservatiou of all royalties . . .' . • . 
 
 Iviglit of gporting over cattlcgatcs 
 
 Trespassing on land wlicre game reserved to lord of llic manor 
 
 Eight of burgesses to sport under charter .... 
 
 Demise of sporting not under seal 
 
 Sale of right of shooting . 
 
 Lease of exclusive rights of sporting . , 
 
 Compensation for damage by game . 
 
 Bequest of money to liberate poachers 
 
 Laying traps for dogs 
 
 Dog running against spear . 
 
 Spring-guns in wood with notice 
 
 — in walled garden 
 
 — definition of 
 
 Action for damage by dog hunting game 
 
 Damage by game to crops 
 
 Shooting rabbits where exclusive right of shooting and sporting let 
 
 Pursuit of game .... 
 
 Persons taken with game on highway . 
 
 Apprehension under game act . 
 
 CHAPTER XII. 
 
 TITHES. 
 
 Value of rent-chai'ge 
 
 Acits relating to tithe 
 
 Twenty years' perception of tithes . 
 
 Bequest of pure personalty to restore tithes void 
 
 Land only liable for tithe rent-charge 
 
 Intention of Tithe Commutation Act . . . 
 
 Bight of vicar to small tithes .... 
 
 Tithes of bea,ns and peas 
 
 Apportionment of rent-charge by commissioners 
 
 Distress under Tithe Act 
 
 Brineiple of apporliumucnt .... 
 Onus of proving land liarrcn .... 
 
 Test of barrenness ...... 
 
 Exemption from tithes 
 
 Instrument purporting to merge tithes 
 
 Award by Tithe Commissioner .... 
 
 Confirmed award 
 
 Dispirte as to parish boundary .... 
 
 IMode of proceeding to ascertain boundaries 
 
 Appeal against Commissioner's award 
 
 Actions against Tithe Commissioners 
 
 Amount of yearly value which entitles an ap})ellan 
 
 Proper farm modus ...... 
 
 Death of incumbent within three months of award 
 
 to a 
 
 )pca
 
 XXVI 
 
 CONTENTS. 
 
 Modus dccim yndi , 
 
 Action for tioljlc value of tithes .... 
 Expenses incident to apportionment 
 Disqualification by interest in valuer . 
 Assessment of tithes to poor rate . • ■ . 
 Annexation of portion of tithes to district church 
 Ecnt-chargc on heps 
 
 — of district church not rateable . 
 
 — not liable to sewers rate 
 
 — grantee of, liable to income tax 
 Jurisdiction of Commissioner of Tithes 
 Outgoings include land-tax and rent-cliargc 
 Occupier of tithe rent-charge to deduct curate's salary from rateable value 
 Perpetual payment to incumbent of new district not to be deducted 
 Lessee of tithe rent-charge not entitled to deduct curate's stipend 
 Assessment of occupier of tithe rent-charge . . . . . 
 
 PAGE 
 
 402 
 403 
 404 
 
 id. 
 405 
 
 id. 
 
 id. 
 406 
 
 id. 
 
 id. 
 
 id. 
 407 
 
 id. 
 408 
 
 id. 
 409 
 
 CHAPTER XIII. 
 
 LANDLORD A^'D TENANT. 
 
 Lessee for half-year tenant for years 410 
 
 Operative words in lease ■ . . id. 
 
 Agreement when operates as lease id. 
 
 Meaning of words " agree to let " id. 
 
 Evidence of title on a writ of cicrjit 411 
 
 Eight to distrain without attornment id. 
 
 Receipt for rent last due id. 
 
 Agreement to let agreement to give possession id. 
 
 Contract for sale of agreement for lease docs not imply lessor's power to lease /(/. 
 
 Demise at yearly rent -112 
 
 New. tenancy not created by increase of rent id. 
 
 Agreement not under seal 413 
 
 Right to enter for condition broken id. 
 
 Instrument void as lease good as agreement id. 
 
 Intention of parties as declared by instrument 414 
 
 Right of tenant to specific performance id. 
 
 I'arol agreement for lease -115 
 
 Covenant respecting rotation of crops engrailed on yearly tenancy . . id. 
 
 Not giving possession no breach under ;l new agicenicnt for a lease . . . 41(1 
 
 Expired lease "^• 
 
 Stamp on agreement i'^- 
 
 Ad, valorem stamp duly ^•'• 
 
 f^jtamp when not necesfary 417 
 
 Cleaning of " subject matter " in Stamp Act id. 
 
 Estoppel between landlord and tenant 418 
 
 Money recoverable from inability to giant ica-c 419 
 
 Separate orders of reference id. 
 
 Arbitrators between outgoing and incoming tenants id.
 
 CONTENTS. 
 
 xxvn 
 
 Authority to agent to execute lease must Ijc under seal 
 Authority of agent to give notice to quit . . . • 
 
 Binding agreement for lease 
 
 Letting by agent without authority 
 
 Acknowledgment of title ...;... 
 
 Tenant under-letting by false rei)resentation . 
 
 Kefusal of entrance by lessor to new tenant . . . 
 
 — tenant to show farm 
 
 '• Demise," meaning of 
 
 Land to be reasonably fit for purpose for which it is taken 
 No implied warranty by lessor of house fit for habitation . 
 Interest of reversioner in repair of premises 
 
 Lessee must seek lessor to pay rent 
 
 C<3vcnant to repair ........ 
 
 — yield up in good repair 
 
 Rule as to keeping premises in repair 
 
 Meaning of good repair 
 
 Right of lessor to enter and examine 
 
 Tenant from year to year not bound to do substantial repairs 
 Measure of damages for not keeping in repair 
 Destruction of jircmises by fire ..... 
 Liability to pay rent for premises burnt down 
 Landlord not compelled to spend fire insurance money 
 
 — to rebuild farm-house 
 Compensation for demolition of dwelling-house 
 Allowance by Court of Chancery for repairs 
 Action for dilapidations subject to compulsory reference 
 Dilaptations of buildings built on waste 
 Right of rector to remove hothouses .... 
 Notice to quit by one joint-tenant .... 
 
 Who may give notice to quit 
 
 Cleaning of '-old lady day " 
 
 Diiierent times of quitting 
 
 Notice to quit when date of commencement of tenantry not known 
 
 InsufScicnt notice to quit 
 
 Lessee for a term of years 
 
 Tenancy of glebe lands under two incumbents 
 
 New vicar right to immediate possession . , 
 
 Two years' notice to quit . . ... 
 
 Action in county court by landlord to evict tenant 
 
 Eviction of tenant when operating as suspension of rent 
 
 Eviction of tenant from parcel of demised premises, no answer 
 
 breach of covenant 
 
 Occupier's liability to pay rates .... 
 Occupier's power to deduct rates from rent . 
 
 Assessment for land-tax 
 
 Special agreement l)y tenant to pay land-tax 
 Demise of land with power to make bricks, kc. 
 Right of tenant to deduct income-tax . 
 
 to action for 
 
 438 
 iJ. 
 /'/. 
 
 4:!y 
 
 vL 
 id.
 
 XXVlll 
 
 CONTENTS. 
 
 Liability of occupier to pay poor-rate 
 
 Iliglit of occv,|ier to recover property-tax paid uu bchall" of landlord 
 
 — to deduct property-tax from rent 
 
 Parish officers need not set out boundaries of property rated by tlicui 
 Emblements, definition of ... 
 
 — executor's right to . . . . 
 
 — devisee's right to . 
 
 — part of stock on farm .... 
 Ileriots not rateable 
 
 — custom of copyholders, as to 
 
 — landlord's right to . 
 
 — payment in lieu of ... . 
 Action for use and occupation 
 
 — will not lie without agreement express or implied . 
 
 — — when it will lie 
 
 — — may lie where action for rent not maintainable 
 
 — — will not lie when title in dispute .... 
 Owner.-hip and tenancy, ^/;-i'//i«/rtCi'c evidence of contract . 
 Agreement void by fraud ........ 
 
 Delivery of instrument as an escrow 
 
 Receiving rents from under-tenant, proof of use and occupation 
 Use and occupation does not exclude under-lotting 
 .Vctiou for double value under statute 
 
 — rent ....... 
 
 Holding over by co-tenant 
 
 — after expiration of lease 
 Ke-cntry on non-payment of rent 
 Permission to hold over after notice to quit 
 Actions by tenants in common . . 
 Eeservation of rent in com .... 
 Average price of corn for seven years 
 Reversioner liable for permanent nuisance . 
 Cleaning of one day's team-work 
 Covenant not to assign or under-let 
 
 — to repair 
 
 — to leave land stocked with game • 
 Payment of increased rent sufficient to take case out of Statute of 1 
 Farm fixtures 
 
 — leading case on 
 
 Plight to remove barn 
 
 — stavel barn 
 
 — water fender 
 
 — staddlcs, thi-ashing -machine, and granaiy . 
 
 — barn on blocks and patterns .... 
 
 — building where landlord finds part of tinibtr 
 
 — tenant's fixtures after determination of tenancy 
 
 — pillars of brick 
 
 Fixtures, not chattels until .severed .... 
 Trover by tenant for fixtures 
 
 and.- 
 
 PAGE 
 
 440 
 
 id. 
 441 
 
 id. 
 442 
 
 id. 
 
 id. 
 443 
 
 id. 
 
 id. 
 444 
 445 
 
 id. 
 446 
 
 id. 
 
 id. 
 
 id. 
 447 
 448 
 
 id. 
 
 id. 
 449 
 
 id. 
 4.30 
 
 id. 
 
 id. 
 451 
 
 id, 
 452 
 
 id. 
 453 
 
 id. 
 
 id. 
 
 id. 
 154 
 
 id. 
 
 id. 
 
 id. 
 
 id. 
 455 
 
 id. 
 450 
 457 
 458 
 459 
 4G0 
 
 id. 
 
 id. 
 461
 
 CONTENTS. 
 
 XXIX 
 
 PACK 
 
 Removal of Iniiklings by tenant after ejectment brought .... 4(;i 
 
 Leaving fixtures in same condition 4(;2 
 
 Law of fixtures ij^ 
 
 Contract for quiet enjoyment 463 
 
 Implied agreement for . . . .id. 
 
 Meaning of premises . . . , uJ, 
 
 Demise of three years certain {^^ 
 
 Action on agreement for lease . . . .- .;,^. 
 
 Agreement requiring stamp .......... 4(J4 
 
 Tenant not bound to take house which is seriously defective . . . . id. 
 
 Evidence of oral agreement ,y_ 
 
 Valuation agreement ...#..,.,... 405 
 
 Costs abiding event of reference ■ . . . . 4GG 
 
 Liability of agent for non-fnlfilment of agreement . . . . . . id. 
 
 Agent's power to let on unusual terms 4G7 
 
 — act ratified by employer id, 
 
 — representation by, that he had authority to act id, 
 
 — guarantee of solvency by 4(;g 
 
 Rights of assignee of mortgagor yi. 
 
 Steam-engine, grindstones, etc., fixtures 4G9 
 
 Annexation of chattel to freehold {j. 
 
 Landlord's claim for rent under _/i. /rt jd. 
 
 Rights of presumptive heir to rents . . . /,/. 
 
 Receipt of rent from third party 470 
 
 Holding over must be continuous to entitle to double value .... •/(/. 
 
 Ejectment by mortgagor id. 
 
 Action by one tenant in common against another id. 
 
 Paying tenant-right to false devisee . • 471 
 
 Enforcing specific performance of farming agreement id. 
 
 Lease by incumbent 472 
 
 Lessee bound to deliver up lease 473 
 
 CHAPTER XIV 
 
 CONTRACTS AND SALES. 
 
 Parties bound by agreement sent to solicitor to be reduced into form 
 Right of vendor to rescind contract 
 
 — purchaser to insist on vendor's personal receipt of money 
 
 — — to recover preliminary expenses 
 
 Remuneration to agent 
 
 Contract for pr;rchase of land when complete 
 
 Avoidance of contract through fraud 
 
 Contract as to coal-mines worked out . 
 
 Sale of close inaccessible except by way over another 
 
 Auctioneer agent for buyer and seller . 
 
 Default by purchaser in complying with conditions of 
 
 Right of i)urchaser to good title . 
 
 Right of one party to contract to substitute a third party in his place 
 
 close 
 
 sak 
 
 474 
 
 id. 
 475 
 
 id. 
 
 id. 
 47G 
 
 id. 
 
 id. 
 
 id. 
 477 
 
 id. 
 478 
 
 id.
 
 .\xx 
 
 CONTENTS. 
 
 Right of ai\ctioneer to commission 
 
 T.ai-gest purchaser entitled to title deeds . 
 
 S;ile of reputed water-meadow 
 
 Sale of a fee-farm-rent 
 
 — by sealed tenders .... 
 
 — printed particulars of, cannot be altered liy parol evidence 
 I'arol evidence when not receivable 
 
 Sale of " Ware " potatoes 
 
 Parol evidence admissible to explain trade tcnn.^ 
 Trade meaning of cider 
 
 _ _ — 1000 rabbits 
 
 ■Words of description may be contradicted by parol 
 
 IJefusal of seller to show in bulk 
 
 Discharge of surety by variation in contract without his consent 
 
 Ordinary rule of buying by sample 
 
 Bulk not equal to sample 
 
 Article sold by sample must be rejected within reasonable time 
 Article sold by contract must reasonably answer description 
 
 llight of purchaser to inspect bulk 
 
 Seed not corresponding with warranty .... 
 
 Necessary to give notice of this 
 
 Application of statute in such cases 
 
 Sale of turnip seed 
 
 Warranty of Skii-ving's swedes 
 
 — seed wheat ....... 
 
 — — sound meat 
 
 Contagious Diseases Animals Act 
 
 Alternative contract must be stated ... 
 Agreement to refer enforceable by action .... 
 cTeliver goods " from time to time " 
 
 Recovery of remuneration on a qiiantutn meruit . 
 
 Seller cannot recover price of part of contract 
 
 Non-specification of time for delivery 
 
 :Measurc of damages for non-delivery of goods . 
 
 Meaning of " directly " in contract of dcliveiy . 
 — " market value " 
 
 Delivery, what constitutes 
 
 Stack sold, but burnt before paid for .... 
 
 Sale of specific chattel on credit 
 
 Sufficient agreement within Statute of Frauds . 
 — deliveiy to satisfy statute ... • • 
 
 What constitutes delivery, leading case as to . 
 
 No actual delivery necessary in the case of ponderous goods 
 
 Evidence of actual acceptance 
 
 Itefusing to deliver to bankmpt vendee after sample taken 
 
 Drawing samples from bulk after purchase 
 
 rurchascr putting mark on particidar article 
 
 Actual acceptance and receipt of goods .... 
 
 llif'ht of vendee to compare goods delivered with sample . 
 
 PAQF. 
 
 478 
 id. 
 479 
 id. 
 id. 
 id. 
 480 
 id. 
 481 
 id. 
 482 
 id. 
 id. 
 483 
 id. 
 484 
 485 
 id. 
 486 
 id. 
 487 
 ■ id. 
 id. 
 488 
 id. 
 489 
 490 
 id, 
 id. 
 id. 
 id. 
 491 
 492 
 id. 
 493 
 494 
 id. 
 id. 
 id. 
 493 
 496 
 id. 
 497 
 498 
 499 
 500 
 id. 
 501 
 502
 
 CONTENTS. xxxi 
 
 PAGE 
 
 Acceptance v/iihin Statute d Frauds 503 
 
 No acceptance where goods lost in. transitu id. 
 
 Acceptance of seed, what constitutes id. 
 
 Wheat stopped in transitu 50-1: 
 
 Memorandum to satisfy 17th section of Statute of Frauds . , . . id. 
 
 Statute extended by 9 Geo. IV., c. 14 505 
 
 Contract to furnish turnip seed 507 
 
 Name and address of vendee written by himself at bottom of list of articles 
 
 purchased sufficient to satisfy statute id. 
 
 What acknowledgment takes debt out of statute 508 
 
 Pleasure of damages for breach of contract 509 
 
 iVction for non-delivery of thrashing machine within certain time . . . 510 
 
 Delivery of goods of inferior quality 511 
 
 Itight of vendee to bring trover for goods id. 
 
 What sufficient evidence to support trover 512 
 
 When trover cannot be brouglit id. 
 
 Order for delivery on thii'd person . . . 513 
 
 Measure of damages in trover id. 
 
 Warranty of seed barley oli 
 
 Sale of Peruvian guano id. 
 
 Joint occupation of a farm 515 
 
 Bill of sale when void against creditors . id, 
 
 — — assignment of, as security for debt 51G 
 
 Devise of farm in trust id. 
 
 Drying bark distinct trade from drying corn 517 
 
 Omission of statement in insurance policy id. 
 
 Law of the market id. 
 
 nights of seller in public market 518 
 
 Market legally established 519 
 
 Fi'aud on lessee of market . . . _ id. 
 
 Bankruptcy of vendees before taking possession of bulk 520 
 
 Eeturns of sales of corn , id. 
 
 Corn measures in different markets 521 
 
 Abolition of local measures 522 
 
 Selling by the hobbett id. 
 
 Sale of corn by sample 523 
 
 Weight of hay not to be increased by water, Sec id. 
 
 Trading by farmer within bankrupt laws id. 
 
 Definition of a trader 524 
 
 — — cowkeeper id. 
 
 Owner of market liable for nuisance arising therefrom 525 
 
 Cattle fair not to be held on recreation ground id. 
 
 Selling liorses within limit of market 526 
 
 Warranty of seed id. 
 
 Ilisk of vendee in absence of express warranty 527 
 
 Selling manure not corresponding with warranty iil. 
 
 Warranty where not implied .......... id. 
 
 No implied warranty that meat fit for food 528 
 
 Selling bad m-eat 523
 
 XXXll 
 
 CONTENTS. 
 
 h o 
 
 Carrier iiulicttible for taking bad meat to market . 
 
 Absence of intent to sell bad meat 
 
 Selling bad cider 
 
 — sulphured hops 
 
 — refuse cake 
 
 sainfi>in seed adulterated with burnct 
 
 Cinivietion under Adulteration of Seeds Act, ISC'.) . 
 
 Recovery of difEerence between sale and market laicc 
 
 Violation of consignor's orders by carrier .... 
 
 Measure of damages for non-dclivcry .... 
 
 Acceptance of hops within the Statute of Frauds . 
 
 Delay of delivery cannot be set up in reduction of damages in bre 
 
 warranty 
 
 What is sufficient to pass property 
 
 Contract for sale of growing turnip seed 
 
 Vendor liable for false representation of lease 
 
 Assicnment by client to attorney not void on ground of champerty . 
 
 Seizure and sale under bill of sale 
 
 The severance of one part of farm from another by railway an injury to farm 
 
 Railway recpiired to take whole estate 
 
 Mortgage on living no ground for rescinding contract of sale of advowsou 
 
 Inaccurate particulars of sale 
 
 Right of agent to remuneration when sale goes off .... 
 Aeent at auction should declare himself 
 
 PAGE 
 
 529 
 
 id. 
 . id. 
 
 id. 
 530 
 
 id. 
 581 
 532 
 
 id. 
 
 534 
 
 .580 
 id. 
 id. 
 
 538 
 
 id. 
 
 id. 
 
 .f>8n 
 
 id. 
 id. 
 540 
 541 
 id. 
 
 CHAPTEIl XV. 
 
 HORSES AND CATTLE. 
 
 Rule of caveat cinplor 
 
 Warranty of soundness 
 
 Distinction between representation and warranty . 
 
 " This horse is sound," a warranty 
 
 Misrepresentation as to where horse comes from 
 
 General rule as to warranty 
 
 Giving horse particular character . . . • . 
 Warranty of horse being " clever hack " . . . . 
 
 Unauthorised warranty by servant 
 
 Receipt of douceur by agent from seller ... 
 Action against agent for breach of duty .... 
 Loss of good bargain evidence of value 
 
 Definition of bone-spavin 
 
 Hirer of horse to use reasonable care .... 
 Full description in auctioneer's catalogue .... 
 Bidder at auction may retract bidding .... 
 
 Puffers at auction sales 
 
 Conditions of auction sales sufficient notice to buyers . 
 
 Horse warranted six years old but actually twelve may be returned 
 
 542 
 
 id. 
 
 id. 
 
 id. 
 
 543 
 
 id. 
 
 544 
 
 id. 
 
 545 
 
 547 
 
 548 
 
 549 
 
 id. 
 
 id. 
 
 id. 
 
 550 
 
 id. 
 
 id. 
 
 551
 
 CONTENTS. xxxiii 
 
 PAQE 
 
 Private warranty incorporated into conditions of sale 551 
 
 Written warranty . . . . . . . . . . . .552 
 
 General rule for horse-dealing 553 
 
 Fraudulent representation at time of sale ........ id. 
 
 Representation must be known to be false id- 
 
 Warranty by servant of horse-dealer 554 
 
 — stranger 555 
 
 General rule of selling by servant ......... id. 
 
 Warranty by servant merely entrusted to deliver . . . . . . id. 
 
 Piule of master taking back horse which will not stand to warranty given by 
 
 servant 556 
 
 Principal responsible for agent's fraud . . . id. 
 
 Warranty by veterinary surgeon as agent ....... 557 
 
 Plea of breach of warranty ........... 558 
 
 Stamp on warranty ............ id. 
 
 Partnership in a horse 559 
 
 Undertaking to give material evidence id. 
 
 Measure of damages in trover for a horse ........ 560 
 
 Riding another horse without licence of owner 561 
 
 Warranty that horse " sound and quiet in harness " id. 
 
 — "good drawer" id. 
 
 Agreement to return mare if in foal ......... id. 
 
 Dealing on Sunday 562 
 
 Covering mares on Sunday 563 
 
 Farmer not within Sunday Trading Act id. 
 
 Positive proof of unsoundness, when necessary id,. 
 
 Warranty when continuing id. 
 
 What constitutes unsoundness 564 
 
 Warranty of bullocks id. 
 
 Meaning of word " sound " 565 
 
 Defect in structure of horse 566 
 
 Unusual convexity in the cornea of eye . • id. 
 
 Hereditary disease in sheep 567 
 
 Permanent cough unsoundness 568 
 
 Roaring ......••••••••*"• 
 
 Stringhalt 569 
 
 Laminitis ......•••••••• "^d. 
 
 Contraction of hoof • • . . ^d. 
 
 Navicular joint disease ^'^• 
 
 Chest-foundered • 570 
 
 Cataract .......••••••• '■c^- 
 
 Affection of nerves in lumbar region id. 
 
 Badness of shape . . . . • • • • • • • .id. 
 
 Curby hocks ■^^^• 
 
 Thin-soles 571 
 
 Splint -^d. 
 
 Effect of lapse of time on contract 573 
 
 Agreement to take horse back within certain time id. 
 
 Reasonable trial • • 574 
 
 Borrowed horse cannot be used by servant 574 
 
 Difference between gratuitous bailee and hirer id. 
 
 Doctoring hired horse 575 
 
 c
 
 xxxiv CONTENTS. 
 
 I'AGK 
 
 Livery-stable keeper no lien for veterinary charges 57 (> 
 
 " No cure no pay " • '"' 
 
 Chemist's liability for selling improper lotion id. 
 
 Selling improper sheep-wash . 577 
 
 Veterinary siirgeon's claim 5 '9 
 
 What constitutes an acceptance *^- 
 
 Sale on credit *"• 
 
 Complete contract of purchase from letters 580 
 
 Giving halfpenny as earnest money 581 
 
 Acceptance within statute 583 
 
 Verbal promise to purchase cattle id- 
 
 Acceptance after delivery 584 
 
 Price under £10 . 585 
 
 Borrowing horse before actual delivery id. 
 
 Cleaning of acceptance 58b 
 
 Comments on Statute of Frauds id- 
 
 Extension of statute 587 
 
 Stealing from agister ^"• 
 
 Compensation for agistment 588 
 
 No lien in case of agistment 589 
 
 Livery-stable keeper no lien .id. 
 
 Inn-keeper no lien except in case of guest 590 
 
 General rule of lien id- 
 
 Lien on race-horses ............ id. 
 
 Auctioneer's lien 591 
 
 Liability of auctioneer as agent id. 
 
 Recovery of keep when warranty broken 593 
 
 Pm-chascr's duty to return unsound horse id. 
 
 Piecovery of keep when contract broken 594 
 
 Question of damages on returning horse id. 
 
 Purchaser's duty when warranted horse unsound 595 
 
 Right of purchaser to return horse within certain time 59r> 
 
 Sale by public auction not sale in market overt 597 
 
 Sale of stolen horses id- 
 
 Sale of gland ered horses 598 
 
 Conspiracy to cheat in selling horses id. 
 
 Conspiring to defraud by false pretences 599 
 
 Ordinary cheating at fair id. 
 
 Recovery of stolen goods in trover 600 
 
 Malicious prosecution for sheep-stealing id. 
 
 Loss of chattels at inn GOl 
 
 Horse injured at livery-stables id. 
 
 Placing gig in street 602 
 
 iJogs in charge of ostler id. 
 
 Keeping swine a nuisance id. 
 
 Slaughtering horses at kennels 603 
 
 Cows poisoned in pasture 603 
 
 — by yew clippings 604 
 
 Acquiescence of owner in erection of injurious works id. 
 
 Cattle injured by working of mines id. 
 
 — by lead works 605 
 
 Symptoms of sulphate of lead . . , 606
 
 INDEX OF CASES. 
 
 A. 
 
 Abbey V. Petcb, 8 M. & W., 419— pp. 
 
 298, 299, 300, 301 
 Abbott'. Weekly, 1 Lev., 176—79, 349. 
 Abington v. Lipscombe, 1 Q. B., 776 — 444 
 Ablest t'. Pritcbard, 1 N. R. C. P., 210— 342 
 Abron V. Fussell, 3 F. & F., 152—549 
 Ackland v. Buller, 1 Ex., 837—401 
 Acraraan v. Morrice, 8 C. B., 449—129 
 Acton V. Blundell, 12 M. & W., 324—175, 
 
 176 
 A(bams V. Great Western Railway Company, 
 
 30 L. J. N. S., Ex., 124—251 
 
 V. Richards, 2 H. BL, 573—573 
 
 Aldenburgh v. Peaple, 6 C. & P., 212—434 
 Alderi'. Keighley, 15 M. & W., 117—509 
 Aldridgeo'.Grreat Western Railway Company, 
 
 3 M. & G. 515—360 
 V. Johnson, 26 L. J. (N. S.) Q. B., 
 
 296—498, 536 
 Alexander v. Combe [Comber], 1 H. Bl., 
 
 21—512 
 V. Gibson, 2 Camp., 555 — 545, 
 
 555 
 Allaway v. Wagstaff, 99 
 AHday r. Great Western Railway Company, 
 
 34 L. J. N. S. Q. B., 5—254 
 Allen V. Cameron, 1 C. & M., 832-484 
 
 V. Denstone, 8 C. & P., 760—555 
 
 V. England, 3 F. & F., 49—358 
 
 V. Lake, 18 Q. B., 560—487 
 
 ■ V. Ormond, 8 East, 4 — 93 
 
 Allott (Exor.) V. Carr and Scholefield, 27 
 
 L. J. (N. S.) C. P., 281 ; Ex. 385— 
 
 516 
 Alsop V. Yates, 27 L. J. Ex,, 156-219 
 Alston V. Scales, 9 Bing., 3 ; 2 M. & Scott, 
 
 5—143 
 Anderson r. Blackburn, A'eterinarian, vol. 
 
 21, p. 469—569 
 , r. Robson, ibid., p. 584 — 543 
 
 Anderson v. Eadcliffe and Walker, 28 L. J. 
 
 (N. S.) Q. B., 32—516, 538' 
 V. Scott, 1 Camp., 235 71—500, 
 
 584 
 Angerstein v. Handson, 1 Gale, 8 ; 1 G. 
 
 M. & R. 789 ; 5 Tyr., 383-315 
 Anscomb v. Shore, 1 Taiin., 261 ; 1 Camp., 
 
 285—272, 279 
 Applebee v. Percy, 9 L. R. C. P., 647—157 
 Appledore (In re), Commutation, 8 Q. B., 
 
 139—397 
 Archer v. Horner, 3 L. & P., 349—206 
 
 V. Sadler, 1 F. & F., 481—359 
 
 Arkwright v. Gell, 5 M. & W., 203 ; 2 
 
 Horn & H., 17—182, 183, 184, 193 
 Ashmead v. Ranger, 1 Ld. Raym., 522 — 115 
 Ashworth v. Stanwix and Walker, 30 L. J. 
 
 Q. B., 183—216 
 Askew {In re), 20 Law J. (N. S.) ; M. C, 
 
 241 ; 2 L. M. & P., 429—201 
 Aste V. Montague, 1 F. & F., 264 -222 
 Attack V. Bantell, N. R., January 31, 1863 
 
 —305 
 Atterbury v. Fairmener, 8 Moore, 32 — 570 
 Attorney- General i\ Chambers, 6 Jurist, 
 
 745—168 
 V. Hanmer, 27 L. J. (N. 
 
 S.) Ch., 837—169 
 V. Matthias, 27 L. J. 
 
 (N. S.)Ch., 761—79 
 V. Corporation of South- 
 ampton, 29 L. J. N. S. Ch., 282-525 
 V. Pretymau, 19 Beav., 
 
 538—316 
 v. Ward, 11 Beav., 203 
 
 —396' 
 Atwood V. Emery, 1 C. B. (N. S.), 110— 
 
 493 
 Aubrey v. Fisher, 10 East, 446—118 
 Austin V. Manchester, Sheffield, and 
 
 Lincolnshire Railway Company, 16 
 
 Q. B., 600 ; 10 C. B., 454—236, 256 
 c 2
 
 XXX Yl 
 
 INDEX OF CASES CITED. 
 
 B. 
 
 Bach i-. Owen, 5 T. R., 409— 5S2 
 Badkin v. Powell, Cowp., 476—268 
 Bagge V. JIawby, 8 Ex., 641—303 
 Baglehole v. Waltei-s, 3 Camp., 154-551 
 Bagnell v. London and North Western 
 
 Railway Company, 31 L. J. (N. S.) C. 
 
 P., 121—196 
 Bailey f. Holford, 8 Q. 15., 1000—375 
 
 V. Forrest, 2 C. & K., 131—571 
 
 V. Forrest, 567 — 571 
 
 r. Stevens, 31 L. J. (N. S.)226, C.P. ; 
 
 12 C. B., 91 ; 6 Law Rep., 356—114 
 Baker, W. (ex parte), 2 H. & N., 219 ; 26 
 
 Law J. (N. S.) M. C, 193—201 
 
 V. Berkeley, 3 C. & P., 32—365 
 
 V. Holtpzaffell, 4 Taun., 45—429 
 
 Kaldey r. Parker, 3D. & R., 220 ; 2 B. 
 37—129, 500 
 
 Castella,7 L. R. Ex., 325—157 
 Dyson, 1 Taun., 279—92 
 Benstead, 1 Camp., 463—174, 
 
 &C., 
 Baldwin ;•, 
 Ballard v, 
 Balston v. 
 
 175 
 Bamfordi). Turnley, 31 L. J. (N. S.) Q. V,., 
 
 286—362 
 Bandy r. Cai-twright- 463 
 Bankhart v. Houghton, Law Times, March 
 
 12, 1859—604 
 Banks n Crossland, 10 L. K. Q. B., 97— 
 
 204 
 Bannerman?-. "White, 3] L. .T. (N. S.)C. P., 
 
 28—530 
 Barker v. Aston, 1 F. & F., 191—516 
 
 r. Davis, 391 
 
 r. Tithe Commissioners, 9M. &M., 
 
 129 ; 11 M. & W., 320—403 
 ■ V. Richardson, 4 B. & Aid., 579 — 
 
 70 
 Barlow f. Osborne, 27 L. J. (N. S.) Ch., 
 
 308—479 
 Barnes v. Harding, 1 C. B. (N. S.) 568— 
 
 411 
 (Admx.) V. Ward, 9 0. B., 392 ; 
 
 2 C. & K., 661—137, 349 
 Barnettr. Guildford (Earl), 11 Ex., 19— 
 
 357 
 Barraud v. Archer, 2 Sim. 433—479 
 Barrett v. Barrett, — Hetley, 35—122, 
 
 309 
 ^— — r. Stockton and Darlington Railway 
 
 Company, 3 M. & G. , 953 ; 3 Scott 
 
 N. R., 803 ; 7 M. & G., 270 ; 8 Scott 
 
 N. R. 641—274 
 
 Barrington v. Turner, 3 Lev., 28—368 
 Barrow v. Ashburnham (Lord), 4 L. J. 
 
 (N. S.), K. B., 146— 3?9 
 Bartlettt'. Purnell, 4 Ad. & E., 792—592 
 Bartons Hill Coal Company v. Reid — 215 
 Basingstoke (Mayor of) v. Lord Bolton, 3 
 
 Drew, 50—445 
 Bas-sett v. CoUis, 2 Camp., 522—568 
 Bateman v. Burge, 6 0. & P., 391—94 
 
 V. Farnsworth, 29 L. J. (N. S.) 
 
 Ex., 365—303 
 Bates v. Hudson, 6 D. & R., 3—576 
 Bathurst (Earl) v. Burden, 2 Br. Ch, Rep., 
 
 64—170 
 Batti.shill r. Reed, IS 0. P.., 696—84, 354, 
 
 355 
 Battley v. Falkner, 3 B. & Al., 288—487 
 Baxendale r. Eastern Counties Railway 
 Company, 27 L. J. (N. S.) 0. P., 137 
 —263 
 
 r. Hardingham, L. T. , April 30, 
 
 1859—517 
 Baxter r. Taylor, 4 B. & Ad., 72 ; 1 N. 
 
 & M., 11—94, 95, 348 
 Baylisr. Le Gros, 26 L. J. C. P., 176— 
 
 428 
 Bayne r. Walker, 3 Dow. H. of L., 233— 
 
 430 
 Beadon r. Trimlett (not reported) — 27 
 Bealey, r. Shaw, 6 East, 208 ; 2 Smith, 
 
 321—76, 171, 172, 174 
 Beardmore v. TreadwcU, 31 L. J. (N. S.) 
 
 Ch., 892—362 
 Beaseley v. Clark, 2 Eing. (N. C), 705 ; 
 3 Scott, 258 ; 2 Hodges, ] 00 ; 5 Dow. 
 P. C, 50—82, 83 
 Beaty v. Gibbons, 16 East, 116—339 
 Beaufort (Duke of) v. Glynn, 3 Sm. & Gif., 
 
 213—476 
 Bcavan v. Delahay, 1 H. B. L., 5 — 290, 
 
 291, 321 
 
 Beckwith v. Shardike, 4 Burr., 2092—367 
 
 Bedford v. Warden and Society of Sutton 
 
 Coldfiekl, 27 L. J. (N. S.), C. P. 137 
 
 -396 
 
 Beech v. White, 12 Ad. & E., 668; 4 P. & 
 
 D., 399—430 
 Beechey^'. Sides, 9 B. & C, 806—364 
 Beeru Santer, IOC. B., 435—329 
 Beeston v. Collyer, 4 Bing., 309—204 
 
 V. Stuteley, 27 L. J. (N. S.), Ch., 
 
 156—419 
 
 V. Weate, 5 E. & B., 986—192 
 
 Behren v. Bremer, 3 0. L. R., 40—419 
 Bell V. Warden (Willis, 202) -349
 
 INDEX OF CASES CITED. 
 
 XXXV 11 
 
 Bell V. Young, 15 C. B., 524-524 
 Benjamin v. Andrews, 27 L. J. (N. S.), 
 
 Q. B., 448, M. C, 310—519 
 Bennett V. Ireland, 28 L. J. (N. S.) Q. B., 
 
 48—430 
 
 • r. Womeck, 407 
 
 Benwell v. Inns, 26 L. J. (N. S.) Ch., 6G3 
 
 —223 
 Berkeley v. Hardy, 5 B. & C, 355 ; 8 D. 
 
 & R., 102—420 
 Benidge y. Ward, 30 L. J. C. P., 218— 
 
 104 
 Bcrriman v. Peacock, 2 M. & Scott, 524 ; 
 
 9 Bing., 384-109, 136 
 Berry v. Herd, Cro. Car., 242—115 
 Bersell [BesscU] v. Landslierg, 14 L. J. 
 
 (N. S.) Q. B., 355—434 
 Besant v. L. & S. W. Ry. Co., 8 C. B., 368 
 
 —153 
 Best V. Osborne, R. & M., 296-569 
 Bezozzi V. Harris, 1 F. & F., 92—165 
 Beverley v. Lincoln Gas Light and Coke 
 
 Company, 6 Ad. & E., 829—445, 446 
 Bewick V. Whitfield, 3 P. Williams, 268— 
 
 109 
 Bexwell r. Christie, Cowp. , 397 — 550 
 Bigg V. Whisking, 14 C. B., J 95— 129 
 Biggins V. Goode, 2 C. & J., 364 ; 2 Tyr., 
 
 447—294 
 Bignall V. Clark, 29 L. J. (N. S.) Ex., 
 
 257—278 
 Binks V. S. Y. & River Don Nav. Co., W. 
 
 R., Nov. 29, 1862, 138 
 Binns v. Pigott 9 C. & P., 208—590 
 Birch V. Liverpool (Earl of), 9 B. & C, 
 
 392-203 
 V. Stephenson, 3 Taun., 469-308, 
 
 313 
 Bird V. Baker, 28 L. J. (N. S.) Q. B., 7— 
 
 435 
 
 V. Bond, N. R., Feb. 21, 1863—114 
 
 ^,. G. E. Ry. Co., 34 L. J. (N. S.) C. 
 
 P., 366—392 
 
 V. Higginson, 4 N. & M., 505—387 
 
 V. Holbrook, 4 Bing., 628 ; 1 M. & 
 
 P., 607—350, 390 
 
 V. Ralph, 4 B. & Ad., 826-310 
 
 Bishop V. Wraith, 2 C. L. R., 287—410 
 Bhichford v. Preston, 8 T. R., 93 & 95— 
 
 550 
 Black t'. Baxendale, 1 Ex., 410—264 
 
 V. Elliot, Times, March 3, 1859— 
 
 577 
 Blackman v. Simmons, 3 C. &P., 138— 
 162 
 
 Blackniore {Ex parte), 6 Ves., 3—524 
 (Adrax.) V. Bristol and Exeter 
 
 Railway Company, 27 L. J. (N. S.) 
 
 Q. B., 167 — 219', 575 
 Blades v. Higgs & Anor.— 379 
 Blagrave v. Bristol Water Works Company, 
 
 1 H &N., 369—94 * 
 Blake v. Gills [Gibbs], 5 Riiss. 16 n— 443 
 V. Peters, 31 L. J. (N. S.) Ch., 884 
 
 — 112 
 Blakemorey. Lancashire and Yorkshire Rail- 
 way Company, 1 F. & F., 76 — 258 
 Blaker «. Anscombe, 1 Bo.s. & P. N. R., 
 
 25-115 
 Blakey v. Dinsdale, Cowp., 664 — 518 
 Blanchard v. Brydges, 4 Ad. & E., 176 — 
 
 97 
 Bland i: Lipscorabe, 4 E. & B., 713 n — 
 
 79 
 Blatchf>a-d v. Cole, 28 L. ,T. (N. S.) C. P., 
 
 140—450 
 Bleadon v. Pyke, 5 M. & S., 146—69 
 Blenkinsopp v. Clayton, 7 Taun., 597 — 
 
 582 
 Blewett V. Jenkins, 12 C. B., 16—114 
 V. Tregonning, 3 Ad. & E., 554 — 
 
 79 
 Blount V. Pearman, 1 Bing. N. C, 408 — 
 
 416 
 Blower v. G. W. By. Co., 7 L. R. C. P., 
 
 655-252 
 Bloxam r. Morley, 7 D. & R., 407—511 
 Bloxsome r. Williams, 3 B. & C, 232- 
 
 562 
 Blundell V. Howard, 1 M. & S., 292 — 
 
 402 
 Blythe v. Topham, 1 Roll. Abr., 88 ; Cro. 
 
 Jac., 158-137, 349, 350 
 Boldero v. Brogden, 2 Moo. & R., 113— 
 
 564, 565 
 Bond V. Dowuton, 2 Ad. & E., 26—351 
 V. Rosling, 30 L. J. (N. S.) Q. B., 
 
 227—464 
 Boone v. Eyre — S32 
 Bonomi v. Backhouse, 27 L. J. (N. S.) 
 
 Q. B., 378-80, 100 
 Booth V. N. E. Ry. Co., 2 L. R. Ex., 173 
 
 —25.3, 254 
 
 V. Macfarlane, 1 B. & Ad., 904— 
 
 450 
 Borastou v. Green, 16 East, 71—322, 325 
 Bostock V. North Staffordshire Railway 
 
 Company, 3 Sm. & Gif., 283-351 
 Boulton V. Reynolds — 272 
 Bowen v. Jenkins, 6 Ad. & E., 911—352
 
 xxxvni 
 
 INDEX OF OASES CITED. 
 
 Bower r. Hill, 2 Bing. (N. C), 339; 2 
 
 Scott, 535 ; 1 Hodges, 334—87 
 Bowers v. Lovekin, 6 E. & B., 584—207 
 
 V. Nixon, 2 C. & K., 372 ; 12 Q. 
 
 B., 546, 558—312 
 Bowyer r. Cook, .4 C. B., 236—353, 354 
 BoydeU r. * Mac:Micliael, 1 G. M. & R., 
 
 177 : 3Tyr., ISl, 974-460 
 Boyfield r. Porter, 13 East, 200—351 
 Boyle V. Tamlyu, 9 D. & R., 430 ; 6 B. & 
 
 C, 329—134, 147 
 Braceginllc r. Peacock, 8 Q. B., 174—352 
 Bradbury r. Wriglit— 407 
 Bradv v. Tod— 545 
 Bi-agg r. Cole, 6 Moore, 114—128 
 Braisher r. Jackson, 6 M. & W., 509 — 
 
 463 
 Braithwaite v. Cooksey, 282 
 Branscombe v. Rowcliffe, 6 C. B., 523— 
 
 333 
 Bramley (appl.) v. Chesterton (resp.), 27 
 
 Law J. (N. S.)C. P., 23-451^ 
 Brancker v. MoljTieaux, 1 AI. & G., 710 
 
 — 352 
 Brewer v. Eaton, 3 Doug., 230—304 
 Briddon v. Great Northern Railway Co., 
 
 28 L. J. (N. S.) Ex., 51-259 
 Bridge v. The Grand Junction Railway 
 
 Company, 3 M. & W., 244—221 
 Bridges f. Smyth, 5 Bing., 410—288 
 Bridgland v. Shapter, 5 M. &W. ,.375—519 
 Briggs V. Baker, Olliphant's Law of Horses, 
 
 57—570 
 Bright V. Swat, 106 
 
 r. Walker, 1 C. M. Si R., 211 ; 4 
 
 Tyr., 502—70, 83 
 Brightley v. Norton, N. R., Dec. 27, 1862 
 
 -538 
 Bringloe v. Morrice, 1 Mod., 210—574 
 Bristol (Dean & Chapter) v. Jones & Oths. , 
 1 E. & E., 484 ; 5 Jurist., 956—114 
 Broadbent v. Ramsbotham, 11 Ex., 602 ; 
 25 Law J. (N. S.) Ex., 115—176, 
 178, 187 
 Broadwater v. Blot, Holt, 547-587 
 Brock V. Copeland, 1 E.sp., 203— ] 62 
 Brown v. Best, 1 Wils., 174—171 
 
 V. Cnunp, 1 Marsh, 567; 6 Taun., 
 
 300—314 
 
 V. Elkington, 8 M. & W., 132—567, 
 
 570 
 
 V. Giles, 1 C. & P., 118-367 
 
 r. Glenn, 16 Q. B., 254-284 
 
 V. Hellaby, 1 H. & N., 729-419 
 
 V. Mallet, 5 C. B., 599—16/ 
 
 Brown v. jMetropolitan Counties Life 
 Assurance Society — 282 
 
 r. Shevill, 2 Ad. & E., 138—285 
 
 V. Robbiiis— 101 
 
 V. Turner— 392 
 
 Browne v. Powell, 4 Bing., 230—270 
 Brownlow v. Thomlinson, 1 M. & G., 484 ; 
 
 1 Scott, N. R., 428—94, 144 
 Bruce v. Helliwell, 29 L. J. (N. S.) Ex., 
 
 297—383 
 Brucker v. Fromont, 6 T. R., 659—212 
 Brunton r. Hall, 1 Q. B., 799—91 
 Bryant v. Eastcrson — 517 
 Brydges v. Stephens, 6 "SlaM. 279—121 
 Buchanan v. Parnshaw, 2 T. R., 746 — 551 
 
 V. Poppleton, 27 L. J. (N. S.) 
 
 C. P., 210—438 
 Buckingham Ry. Co. in re, 539 
 Bucksby v. Coles, 5 Taun., 311—88 
 Buckworth v. Simpson, 1 C. M. & R., 834 ; 
 
 5 Tyr., 344—426, 451 
 Budd r. Fairmener, 8 Bing., 48 — 554 
 Bull r. Sibbis, 8T. R., 327—448 
 Bullardt;. Harrison, 4 M. &S., 387-88. 94 
 Ballen v. Denning, 8 D. & R., 657 ; 5 B. 
 
 &C., 842 — 121 
 Bulling V. Ellice, 9 Jurist, 936—208 
 Burling v. ilead— 358 
 Bunch V. Kennington, 1 Q. B., 679-368 
 Burbago v. King, 2 Chitt., 246-338 
 Burnby v. Bollett, 16 M. & W., 644—489, 
 
 528 
 Burnell v. Brown, 1 .Jac. & Walker, 168 — 
 
 387, 540 
 Burt?-. Moore, 5 T. R., 329-267 
 Burton r. Banks, 2 F. & F., 213—473 
 Bush T. Green, 4 Bing. N. C, 41 ; 5 Scott, 
 
 289—368 
 Bush by v. Fisher, 3 N. & M., 381—276 
 Butcher r. Butcher, 7 B. & C, 399 ; 1 :\I. 
 
 & R., 220—345 
 Butler f. Hunter, 31 L. J., Ex. 214—110 
 Buttemere v. Hayes, 5 M. & W., 456 ; 7 
 
 Dow. (P. C), 48y— 62, 63 
 Butterfield v. Forester, 11 East, 60-221 
 By water v. Richard.son, 1 Ad. & E., 508 ; 
 3 N. & M. 7-48-551, 569 
 
 C. 
 
 Caldccntt r. Smj-thics, 7 C & P., SOS — 
 
 321 
 Caledonion Railway Company v. Sprott, 2 
 
 Macq. H. L. Cases, 449—81
 
 INDEX OF CASES CITED. 
 
 XXXIX 
 
 Calvert v. Joliffc, 2 B. & Ad., 418—295 
 Callow V. Brouncker, 4 C. & P., 518— 
 
 203 
 Caraberwell Rent Charge {In re), 4 Q. B., 
 
 151—280 
 Camoys (Lord) v. Scnrr, 9 C. & P. , 386— 
 
 574 
 Canham v. Barry, 3 C. L. R., 336—476 
 — r. Fisk, 2 C. & J., 126 ; 2 Tyr., 
 
 155 ; 1 Price, P. C, 148—76 
 Card V. Case, 5 C. B., 622—166 
 Carl yon v. Levering, 26 Law J. (N. S.) 
 
 Ex., 251—86, 181 
 Carr v. Lancashire and Yorkshire Railway 
 
 Company, 7 Ex., 707—239, 249 
 Can-ington r. Roots, 2 M. & W., 248; 
 
 Mur. & H., 14—58 
 
 V. Taylor, 11 East, 571—385 
 
 Camithers ^\ Hollis and Church, 8 Ad. & 
 
 E., 113—266 
 Carter -y. Crick, 28 L. J. (N. S.) Ex., 238 
 
 —528 
 V. Toussaint, 5 B. & Al., 855—495, 
 
 579 
 Castleraain v. Hicks, 1 C. & M., 266—283 
 Caswell V. Coare, 1 Taun., 566—593 
 Cattle V. Gamble, 5 Bing. N. C, 46—416 
 Cave V. Coleman, 3 M. & R., €—543 
 Chambers estates (In re), 106 
 Ghannon v. Patch, 5 B. & C, 897 ; 8 D. 
 
 &R., 651—124 
 Chaplin v. Rogers, 1 East, 192—496, 498, 
 
 582 
 Chapman v. Allen, Cro. Car., 271—588, 
 
 589 - 
 
 V. Cripps, 2 F, & F., 864—106 
 
 V. Gwyther — 552 
 
 • V. Speller, 19 Law J. (N. S.), 
 
 Q. B., 239—301 
 Charlewood ?;. Greig, 3 C. & K., 46 — 159 
 Charter v. Gneme and Simpson, 13 Q. B. , 
 
 216-137 
 Chase v. Westmore, 5 M. & S., 180-588 
 Chasemore v. Richards, 2 H. & N. , 168 — 
 
 96, 176, 177, 178 
 Chater v. Beckett, 7 T. R., 201—277 
 Chawler r. Hopkins, 528 ^ 
 Cheetham v. Hampson, 4 T. R., 318—132 
 Chenie v. Watson, 2 Peake's Add. Cas., 
 
 123-522 
 Cherry r. Hemming, 4 Ex., 631 — 495 
 Chesterman v. Lamb, 2 A. & E., 129 ; 4 
 
 N. & M., 195—593 
 Chetham v. Williamson, 4 East, 468 — 75 
 Chichester (Earl) ?•, Prestney — 387 
 
 Chinery v. Kail, 29 L. J. (N. S.), Ex. 180 
 
 —305, 532 
 Chippendale v. Lancashire and Yorkshire 
 
 Railway Company, 21 Law J. (N. S.), 
 
 Q. B., 22—235, 248 
 Christy v. Tancred, 7 M. & W., 127 ; 9 
 
 M. & W., 438; 12 M. & W., 316, 
 
 H. & Walm., 50—450 
 Chvirch v. Inclosure Commissioners — 98 
 Churchill V. Evans, 1 Taun.. 529—133, 147 
 Churchward v. Ford, 2 H. & N., 446 ; 26 
 
 Law J. (N. S.), Ex., 354—44.5, 447 
 
 V. Studdy, 14 East, 249—367 
 
 Clare v. Maynard, 6 Ad. & E., 518 ; 7 C. 
 
 &P., 741—549, 558,594 
 Clark V. Allatt, 4 C. B., 335—208 
 V. Gaskarth, 2 Moore, 491 ; 8 Taun., 
 
 431—292 
 
 V. Mumford, 3 Camp., 37 — 379 
 
 V. Roystone, 13 M. & W., 752—329 
 
 V. Smythies, 2 F. & F., 83—541 
 
 r. Wekter & Salt, 1 C. & P., 104— 
 
 161 
 Clarke v. Cogge, Cro. Jac, 170 — 90 
 
 V. Crowder— 392 
 
 V. Gray, 6 East, 564—313 
 
 V. Yonge, 5 Beav., 523—399 
 
 V, Westrope, 18 C. B., 765 — 334 
 
 Clayton v. Corby, 2 Q. B., 813—84 
 Clee V. Hall, 7 CI. & Fin., 744—396 
 Clegg V. Dearden, 12 Q. B., 576 — 180 
 Cleghorn v. Dun-ant, Law Times, June 26, 
 
 1858-317 
 Clement v. Milner, 3 Esp. N. P. C, 95— 
 
 266 
 Clements v. Smith, 30 L. J. (N. S.) M. C, 
 
 16—342 
 Cleobury v. Tattersall, MSS., 1859— 
 
 544 
 Coates V. Stevens, 2 Moo. & Rob., 157 — 
 
 564, 565, 567 
 Cobb (Clerk) V. Selby, 2 N. R., 466 ; 6 
 
 Esp., 103-93 
 Cocker v. Cowper, 1 C. M. & R., 418 ; 5 
 
 Tyr., 103—74 
 Cocking V. Ward, 1 C. B., 858—62, 64, 
 
 65, 66 
 Coe V. Clay, 5 Bing., 440—309, 411 
 Coke r. Cholmondeley, 27 L. J. (N. S.) 
 
 Ch. 286—431 
 Colam V. Hall— 603 
 Colchester v. Roberts, 4 M. & W., 769 — 
 
 352 
 Colegrave v. Bios Santos, 3D. & R., 255 ; 
 
 2 B. & C, 76—458, 461
 
 xl 
 
 INDEX OF CASES CITE-D. 
 
 Coleman v. Foster, 1 H. it N., 07 — 72 
 
 Colesworth v. Spokes — 304 
 
 CoUard v. South Eastern Railway Company, 
 
 30 L. J. (N. S.), Ex., 3<t3-534 
 Collen r. Wright, 7 E. & B., 301—421, 
 
 466, 467 
 Collins V. Jenkins, 4 Ding. N. C, 225— 
 
 559, 560 
 Collis V. Botthamley, 'Weekly Reporter, 
 
 Dec. 11, 1858—204 
 Colthenl V. Puncheon, 2 D. & R., 10—561 
 Cooch V. Goodman, 2 Q. B., 580—417 
 Cook r. Manstnne — 490 
 Cooke V. Humphrey, Moore, 177 — 455 
 
 V. Riddelien, 1 C. & K., 561—483 
 
 Coonibes r. Bristol and Exeter Railway 
 Company, 27 L. J. (N. S.) Ex., 269, 
 401 — 264, 503 
 Cooper V. Elston, 7 T. R., 14-485 
 
 V. Hubbuck, 31 L. J. Ch., 123—97 
 
 r. Shuttleworth, 25 Law J. (N. S.) 
 
 Ex., 114—333 
 
 V. Woolfitt, 2 H. &N., 122-442 
 
 Corby V. Hill, 27 L. J. (N. S.) C. T., 318 
 
 —355 
 Cormack v. Gillis, 7 East, 480-484 
 Comfoot V. Fowke, 6 M. & W., 381—319, 
 
 420, 556 
 Cornwell v. Saunders, 32 L. J. M. C, 6 — 
 
 377 
 Cotton V. Wood, 29 L. J. C. P., 333-217, 
 
 361 
 Countess of Cumberland's case, Moore, 812 
 
 —125 
 Courthorpe r. :Maplesden, 10 Yes., 290— 
 
 115 
 Couston V. Chapman — 485 
 Cowling V. Higginson, 4 M. &W., 245—93 
 Cox V. Glue, Mouseley and Saint, 5 C. B., 
 533—347 
 
 V. Godsalve, 6 East, 604—443 
 
 V. Reid, 13 Q. B., 558—371 
 
 Coxon V. Great AVestern Railway Company, 
 
 29 L. J. (N. S.)Ex. 165—251 
 Cracknell v. Davey, 1 F. & F., 57—423 
 Cranston r. Clarke — 407 
 Cresswellu Hedges, 31 L. J. (N. S.) 497 
 
 Ex.— 471 
 Ci-ipps V. Blanks, 9 D. & R., 480—449 
 Crisp V. Gill, 29 Law Times, 82—489 
 Croft V. Alison, 4 B. & Al., 590-220 
 Crosby ?'. Wadsworth, 6 East, 602 ; 2 Smith, 
 
 559-52, 53, 56, 57, 58, 60, 347. 
 Crouch r. Great Western Railway Company, 
 26 Law J. (N, S.) Ex., 418—264 
 
 Crouch V. Tregoniiing — 152 
 
 Cuckson V. Stones, 28 L. J. (N. S.) Q. B., 
 
 25—199 
 Cuff r. Penn, 1 M. & S., 11—483 
 Culling r. Tuflnall, Bull N. P., 34—455, 
 
 458 
 Cumberland r. Bowes [Lady Giamis], 24 
 
 L. J. (N. S. ), C. P., 46—333 
 Cumming v. Bedborough, 15 M. & W., 438 
 
 — 440 
 Cummins r. Birkett, 27 L. J. (N. S.) Ex. 
 
 216—431 
 Cupit I'. Jackson, Macall, 495—280 
 Curtis r. Drinkwater, 2 B. & Ad., 109 — 
 559 
 
 • r. Hannay, 3 Esp., 82 — 575 
 
 V. Mills, 5 C. & P., 489—165 
 
 V. Wheeler, M. & M., 493; 4 C. & 
 
 P., 196—290 
 Cutter V. Powell, 2 Smith's Leading Cases, 
 1—200 
 
 D. 
 
 Dalby v. Hirst, 3 Moore, 536; 1 B. & B., 
 
 224—329 
 Dalton r. Whittem, 3 Q. B., 901; 3 G. & 
 
 D., 200—69, 461 
 Damerell r. Protheroe, 10 Q. B., 20—443 
 Daniel v. Grace, 6 Q. B., 145—440 
 
 r. North, 11 East, 372—70 
 
 Dann v. Spurrier, 3 B. & P., 399—435 
 Darby v. Harris, 1 Q. B., 895-285 
 Barer. Heathcote, 25 L. J. (N. S.) Ex., 
 
 245—93 
 Dark {In re) v. Buck, 83—322 
 Davidson r. Stanley, 2 M. & G., 721— 
 
 209 
 Davies v. Baron Berwick, 30 L. J. (N. S.) 
 
 84, M. C— 206 
 Davies [Davis] v. Connop, 1 Price, 53 — 
 321 
 
 V. Mann, 10 M. & W., 546—221 
 
 V. Underwood, 2 H. & N., 570— 
 
 426 
 Davis V. Danks, 3 Ex., 435—348 
 
 V. Cydc, 4 N. & M., 462 ; 2 Ad. & 
 
 E., 623—277 
 
 r. Jones — 465 
 
 V. Oswell, 7 C. & P., 804—560 
 
 r. Powell, Willes, 46 ; 7 Mod., 249 
 
 — 286, 298 
 Davy V. Cracknell, 1 F. & F., 57—448 
 V. Gillet, MSS., 1861—530
 
 INDEX OF CASES CITED. 
 
 xli 
 
 Daw V. Hole, 15 Law J. (N. S.) Q. B., 32 
 
 —353 
 Dawes v. Hawkins, 29 L. J. C. P., 343— 
 
 101 
 Dawson v. Alford, Dyer, 312—286, 287 
 v. Cropp, 1 G. i>., !'61; 3 D. & L., 
 
 225—302 
 
 V. Charaney, 5 Q. B., 154—601 
 
 . V. CoUis, 10 C. B., 523—484 
 
 _ V, Fitzgerald, 9 L. R., Ex., 7—391 
 
 .V. Linton, 5 B. & AL, 521; 1 D. 
 
 & R., 117—439 
 r. Midland Railway Co., 8 L. R., 
 
 Ex. 8-140 
 Dayrell v. Hoare, 12 Ad. & E., 356—384 
 Deane V. Allalley, 3 Esp., 11—455 
 
 V. Clayton, 7 Taun., 419—389 
 
 V. Keat, 3 Camp., 4 — 575 
 
 Dearden v. Evans, 5 M. & W., 11 ; 2 H. & 
 
 H., 7—110 
 Degg (Adx. ) V. Midland Counties Railway, 
 
 1 H. & N., 773—211, 217, 218 
 Degge V. Tiicker, 1 H. & N., 500—601 
 Delaney v. Fox, 26 Law J. (N. S.) C. B., 
 
 248—357, 437 
 Delapole r. Delapole, 17 Ves., 150—126 
 Denby v. ]\loore, 1 B. & AL, 123—440, 
 
 441 
 Dendy v. Niclwl, 27 L. J. (N. S.) C. P., 
 
 220—288, 451 
 
 V. Simpson, 18 C. B., 831—346 
 
 Denneu Light, 26 Law J. (N. S.) Ch., 
 
 469—90 
 Dennis v. Lofft, Weekly Reporter, Feb. 5, 
 
 1859—430 
 Dent Cummutation [In re), 8 Q. B., 43 — 
 
 400 
 Denton v. Richmond, 1 C. & M., 734 ; 3 
 
 Tyr., 630-313 
 Derby (Earl) v. Gee & Others— 169 
 Daring (Ex, 2Mrte), 1 De Gex B. C, 398 
 
 —524* 
 Dickinson v. Follett, 1 Moo. & R., 299— 
 
 570 
 i\ Gappi (cited 1 M. & Scott, 78; 
 
 and 5 C. & P., 81)— 553 
 V. Grand Junction Railway Com- 
 pany, 7 Ex., 282—174, 177, 178, 186 
 Digby V. Atkinson, 4 Camp., 275 — 451 
 V. West Ham Board of Health, 
 
 Weekly Reporter, May 1, 1858—602 
 Dimech v. Corlett, 33 Law Times, 21 — 
 
 478 
 Dingle v. Hare, 29 L. J. (N. S.) C. P., 148 
 
 —527 
 
 Dixon r. Geldard, A. D., 1857— IIS 
 Dobson V. Collis, 1 H. & N., 81—203 
 Doe dem. Asliuz'. Sumraersett, 1 15. & Ad., 
 
 135—432 
 
 Baker v. Coombes, 9C. B., 714 — 345 
 
 Barrett v. Kemp, 2 Scott, 9 ; 2 Bing. , 
 
 N. C, 102—170 
 Bennett v. Turner, 7 M. & W., 226 — 
 
 346 
 
 Bevis, 7 C. B., 456—482 
 
 Bloomfield v. Smith, 6 East, 520— 
 
 435 
 
 Cates V. Somervilc, 9 D. & R., 100— 
 
 435 
 Daggett V. Snowdon, 2 W. Bl., 1224 
 
 — 433 
 
 Davenish r. Moffatt, 15 Q. B., 257— 
 
 413 
 Davenport v. Rhodes, 11 M. & W., 
 
 COO ; 1 D. & L., 292—433 
 
 Dixon ('. Roe, 7 C. B., 134—304 
 
 Douglas V. Lock, 2 Ad. & E., 705 ; 
 
 4 N. & M., 807—90, 109, 384, 443 
 
 Hall V. Benson, 4 B. &AL, 588—432 
 
 Hertford (Marquis of) v. Hunt, 1 M. 
 
 & W., 690 ; 2 Gale, 102—423 
 V. Hopkinson, 3D. & R. , 
 
 507—432 
 
 • Jones V. Crouch, 2 Camp., 448—122 
 
 Jordan v. Ward — 435 
 
 Kirby ?;. Carter, 1 Ry. & Moo., 237 
 
 — 435 
 
 • Kindersley v. Hughes, 7 M. & W., 
 
 130—432, 433 
 
 Lewis V. Rees, 6 C. & P., 610—169 
 
 Macartney (Earl) r. Crick, 5 Esp., 
 
 196—432 
 Mann v. Walters, 10 B. & C, 626 ; 
 
 5 M. &Ry.,357— 432 
 
 Manvers (Earl) r. Mizem, 2 Moo. & 
 
 R., 56—420, 432 
 Marlow r. W^iggins, 4 Q. B., 367 ; 3 
 
 G. & D., 504—417 
 
 Marsack v. Read, 12 East, 57—432 
 
 Morgan v. Powell, 7 M. & G., 980— 
 
 410 
 Monkv. Geeckie, 1 C. & K., 307— 
 
 290, 412 
 Murrell v. Mil ward, 3 M. & W., 328 
 
 —434 
 Oldershaw v. Breach, 6 Esp., 106^ 
 
 435 
 Philips V. Benjamin, 9 Ad. & E., 
 
 644—410 
 Pitt V. Laming, 4 Camp., 73 — 314
 
 xlii 
 
 INDEX OF CASES CITED. 
 
 Doe dem. riummcr r. iluiuby, 10 Q. B., 
 473-434 
 
 Pring r. Pearscy, 7 P.. & C., 304 ; 9 
 
 D. & R., 90S— 143 
 
 Rhodes V. Robinson, 3 P.ing. (N.C.), 
 
 677—420, 432 
 
 Rigge V. Bell, 5 T. R., 471—434 
 
 Rogers v. Price, 19 L. J. (N. S.), 
 
 C. P., 121—115 
 
 r. Rowlands, 9 C. & P., 734-420 
 
 r. Sluvwcross, 3 B. & C, 752-304 
 
 V. Slight, 1 Dowl., 163-411 
 
 Spicer r. Lea, 11 East, 312—432 
 
 r. Rpiller, 6 Esp., 70—432 
 
 Strickland v. Spence, 6 East, 120— 
 
 432 
 
 Thomson r. Amcy, 12 Ad. & E., 47G 
 
 —415, 451 
 
 Thomas r. Field, 2 Dow., 542—450 
 
 Tilt V. Stratton, 4 Bing. , 446—435 
 
 Watei-s V. Houghton, 1 M. & Ry. , 
 
 208—417, 438 
 
 "Webb V. Dixon, 9 East, 15—435 
 
 Wetherell r. Bird, 6 C. & P., 195— 
 
 125 
 
 Winnall v. Broad, 2 M. & G., 523 - 
 
 315 
 
 -Wood, 3 B. & Aid., 724—75 
 
 Dolby r. lies, 11 A. &E., 335-426 
 Donellan v. Read, 3 B. & Ad., 899-495 
 Douglas r. Archbutt, 21 L. J. (N. S.l Ch., 
 271—478 
 
 V. Corbett, 6 E. &B., 511—600 
 
 Dovaston v. Payne, 2 H. Bl., 527-135, 
 
 . 145, 148, 150, 265 
 DowTishire (Marquis of) r. Lady Sandys, 6 
 
 Yes. 107—126 
 DoweU V. Dew, 12 L. J. (N. S.) Ch., 
 158—415 
 
 . r. General Steam Navigation Co. , 5 
 
 E. &B., 206-221 
 Draper v. Crofts, 15 M. & W., 166-450 
 Drant >: Brown, 3 B. & C, 665 ; 5 D. & 
 
 R., 582-417 
 Drury v. Molins, 6 Ves., 328 — 308 
 
 V. De la Fontaine, 1 Taun., 131—562 
 
 ,-. Macnamara, 25 L. J. (N. S.) Q. 
 
 B., 5-416 
 Duck?;. Braddyl, Macl., 217—416 
 Duddcn r. (luardiaus of Clutton Union, 1 
 
 H. &N., 627-179 
 Dndlev (Lord) r. Ward (Lord), Ai.dj., 113; 
 
 Bull N. P., 34-455 
 Duncan v. Topham, 8 C. B., 225—493 
 Dunk V. Hunter, 5 B. & Al., 322—290 
 
 Duulop V. Dalhousie (Earl of), 7 Bligb 
 
 K S., 422—452 
 
 r. Waugh, 1 Peake, 167- 543 
 
 Durell r. Evans, 31 L. J. (N. S.) Ex., 337 
 
 —536 
 Durham and Sunderland Railway Company 
 
 ('. Walker, 11 L. J. (N. S.) Ex., 440 
 
 —90 
 Dynen r. Leach, 26_L. J. (N. S.) Ex., 221 
 
 —219 
 
 Eardley v. Price, 2 N. S., 333—206 
 Eastwood f. Kenyon, 11 A. & E., 438 ; 3 
 
 P. &D., 276-64 
 Eaves v. Dixon, 2 Taun., 342—563 
 Edge V. Strafford, 1 C. & J., 391—68 
 Edmonson v. Edmonson, 8 East, 294 — 66 
 Edmonds v. Eastwood, 27 L. J. (N. S.) Ex., 
 
 209—440 
 Edwards v. Bunbury, 3 Q. B., 885 ; 3 G. 
 
 &D., 229—401 
 Egerton v. Mathews, 6 East, 307 — 507 
 Eliasr. Nightingale, 27 L. J. (N. S.) Q. B., 
 
 195 ; M. C, 151—602 
 Elliott r. Thomas, 3 M. & \Y., 170—129 
 Ellis r. Arnison, 3 D. & R., 27 ; 1 B. & 
 C, 70—131 
 
 r. Chinnock, 7 C. & P., 169— 593, 594 
 
 V. Loftus Iron Co., 10 L. R. C. P., 
 
 10-141 
 
 r. London and South Western Rail. 
 
 Co., 2 H. & N., 424—150 
 
 V. Mortimer, 1 Bos. & P., 257—574 
 
 V. Taylor— 271 
 
 V. Woodbridge— 103 
 
 Elliss V. Ellis.s, 27 L. J. Ex., 516—289 
 Elmore v. Stone, 1 Taun., 460— 498, 580, 583 
 Elton V. Jordan, 1 Stark. N. P. C, 127— 564 
 
 V. Brogden, 4 Camp., 281 — 564 
 
 Elwell». Crowther, 31 L. J. (N. S.) Ch., 
 
 763-196 
 Elwes V. Mawe, 3 East, 38—454, 458 
 Emberton 1'. Matthews, 31 L. ,T. (N. S.) 
 
 Ex., 139—529 
 Emblen r. Myers, 30 L. J. (N. S.) Ex., 71 
 
 —359 
 Embletonr. Brown, 30 L. J. (N. S.) M. 
 
 C, 1—169 
 Embrey ?\ Owen, 6 Ex., 353— 187, 188, 
 
 190, 196 
 Emery u Bamett, 27 L. J. iN. S.)C. P., 
 216—437
 
 INDEX OB' CASES CITED. 
 
 xliii 
 
 Emery i: Pcakc, Vctcrlnariau, vof. 29, p. 
 
 430—156 
 Emmerson v. Heelis, 2 Taun. , 38—50, 51,60 
 Emmett v. Kiddell, 2 F. & F., 142—538 
 EmpsoD V. Soden, 4 B. & Ad., 655 ; 1 N. 
 
 & M., 720—125 
 Essex (Earl of) v. Capel, a.d. 1809 (Cliitty 
 
 on Game Laws, 31) — 365 
 Evans v. Birch, 3 Camp., 10-223 
 
 V. Botterill, 33 L. J. (N. S.) M. C, 
 
 50—376 
 
 V. Elliott, 6 X. & M., 606 ; 5 Ad. & 
 
 E., 142—279 
 
 V. Evans, 2 Camp., 491—115 
 
 ■ V. Matthias, 26 L. J. (N. S.) Q. F.., 
 
 309—411 
 
 r. Oakley, 1 C. & K., 125-142 
 
 ■ V. Roberts, 5 B. & C, 829 ; 8 D. & 
 
 E,.,611— 50,51,54,56, 57, 59, 60,67 
 . V. Wright, 27 L. J. (N. S.) Ex., 50 ; 
 
 2H. & N., 527—285 
 Every v. Smith, 26 L. J. (N. S.) Ex., 344 
 
 — 343 
 Ewart V. Graham (Bart.), 29 L. J. (N. S.) 
 
 Ex., 88—382, 383 
 
 F. 
 
 Fairmener v. Budd, 7 Bing., 575 — 559 
 Falmouth (Earl) v. Thomas, 1 C. & M., 89 ; 
 
 3Tyr., 26-61, 306, 588 
 Farrant v. Olmius, 3 B. & AL, 692—313 
 ■ r. Thompson, 2 D. & R., 1 ; 5 B. 
 
 ct Al., 826 ; 3 Stark. 130—461 
 Faviell v. Gaskoin, 7 Ex., 273—317 
 Fawcett v. Cash, 5 B. & Ad., 907-200 
 r. The York and North Midland 
 
 Railway Company, 16 Q. B., 6] 0—144, 
 
 147, 148, 150, 152 
 Fcnn r. Harrison, 3 T. R., 760—545, 555 
 Fennell v. Ridler, 5 B. & C, 406 ; 8 D. & 
 
 R., 204-562 
 Fentiman v. Smith, 4 East, 107 — 71 
 Fenton v. Logan, 9 Bing., 676—286 
 Ferrier v. Peacock, 2 F. & F., 717—538 
 Few V. Perkins — 454 
 Fewings v. Tindal, 1 Exch. 295-206 
 Field V. Adames, 10 L. J. (N. S.) Q. B., 2 
 
 — 266 
 Fieldenv. Tattersall, N. R. Jan. 1863—328 
 Fielder r. Starkin, 1 IL V,\. 17—443, 573, 
 
 574 
 Fisher -v. Burrell, 2 (l B., 239 ; 8 Ex., 
 
 256—398 
 
 Fitch V. Rawling, 2 H. Bl., 399—79, 349 
 
 Fitzgerald i'. Iveson — 527 
 
 Fitzherbert !'. Shaw, 1 H. BL, 258—455, 
 
 461 
 Fitzmaurice v. Bayley, 26 L. J. (N. S.) Q. 
 
 B., 114; 27 L.' J. (N. S.) Q. B. (in 
 
 Error), 143—412 
 Flanders v. Bunbury, see 1 C. B., 678 — 
 
 401 
 Fleeming v. Snook, 5 Beav., 250—314 
 Fleming (Lady) ?'. Simpson, 6 L. J. (N. S.) 
 
 Q. B., 207—110 
 Fletchem Calthorji, 6 (^. B., 880-369 
 
 V. Rylands, 1 L. R. Ex., 265—156 
 
 V. Tayleur, 17 C. B., 21 — 511 
 
 Flight V. Thomas, 11 Ad. & E., 688 ; 10 
 
 Ad. & E., 59 ; 3 P. & D., 442—84 
 Flureau r. Thornhill, 2 Sir W. Black, 1078 
 
 —388 
 Folkingham r. Croft, 3 Anst., 700—411 
 Foord V. Morley, 1 F. & F., 496—207 
 Forbes v. Carney, Wallis (Lyne), L. Cli. 
 
 Rep., 38—312 
 Ford i'. Lacey, 30 L. J. (N. S.) Ex., 352— 
 
 169 
 1'. Tynte, 31 L. J. (N. S.) Ch., 177— 
 
 382 
 Forth V. Simpson, 13 Q. B., 680—590 
 Foster v. Taylor, 5 B. & Ad., 887—523 
 (appt.) V. Smith (resp.), 18 C. B., 
 
 156—557 
 Fowkes I'. Joyce, 2 Vern., 129—275, 276 
 Franklin ■;;. Carter, 1 C. B., 750—440 
 Frankum v. Falmonth (EarL, 2 Ad. & E., 
 
 452 ; 4 N. & M., 330-171 
 Freemantle v. L. & N. W. Ry. Co., 31 L. 
 
 J. (N. S.) C. P. 12—360 
 Freemason r. Booman, 2 Keble, 291 — 446 
 Freestone v. Casswell, 4 L. R. Q. B. 519 
 
 —144 
 French v. Styi-ing, 2 C. B. (N. S.), 357; 26 
 
 L. J. (N. S.) C. P. 181—559 
 Frend v. Tolleshunt Knights— 409 
 Freweu v. Phillips, 30 L. J. C. P. 356—95 
 Frith I'. Purvis, 5 T. R., 432—279, 283 
 Frusher v. Lee, 10 M. & W., 709 — 299 
 Farley v. Wood, 1 Esp., 197—432 
 
 G. 
 
 Gabay r. Lloyd, 5 D. & R., 641 ; 3 B, & 
 
 C., 793—231 
 Gage r. Acton, 1 Salk., 326 ; 1 Com. Rep., 
 
 67—277
 
 XllV 
 
 INDEX OF CASES CITED. 
 
 (rale r. Bates, 33 L. J. (X. S.) Ex.— 235 
 Gallin v. L. & X. AV. Ey. Co., 10 L. R. Q. 
 
 B., 212—203 
 Galloway r. Keyworth, 2 C. L. R., S60— 
 
 419 
 Gahvay r. Baker, 5 CI. & Fin., 157—121 
 
 r. Cozens — 271 
 
 Gandy r. Tubber— 453 
 
 Gardiner r. Williamson, 2 B. & Ad., 22G— 
 
 2S1, 2S8, 296 
 Gardner v. Charing Cross Ry. Co., 31 L. J. 
 
 (N. S.) Ch., 181—539 
 
 r. Grout, 2 C. B. (N. S.), 310- 
 
 500. 
 
 Garland i: Jekyll, 2 Bing., 273 ; 9 Moore, 
 
 502-443, 444 
 (steward's Ca.se, 6 Rep. 59 b. — 78 
 Gee r. L. & York. Ry. Co.— 534 
 Geeckie v. Monck, 1 C. & K., 307—290 
 Geddes v. Pennington, 5 Dow., 159—543, 
 
 553 
 Gent V. Harrison, 29 L. J. (N. S.) Ch., 68 
 
 —111 
 Gesswood {ex parte), 2 C. & R., 269—201 
 Gethiug V. Morgan, Law Tirties, May 5, 
 
 1857, 5 W. R. 536 ; E. T. 1857, Q. 
 
 B.— 158 
 Gibbins r. Board of Metropolitan Asylum, 
 
 11 Beav., 1—421 
 Gib.son r. Kirk, 10 L. J. (N. S.) Q. B., 
 
 967; 1 G. & D., 2.52; 1 Q. B., 
 
 850—446, 447 
 
 r. S. E. Ry. Co.— 359 
 
 Giles V. Jones, 11 Ex., 393—523 
 
 V. Spencer, 26 L. J. (N. S.), 237, C. 
 
 P.— 281 
 
 X. Taff Vale Railway Company, 2 E. & 
 
 • B., 822—512 
 Gill V. M. S. & L. Ry. Co., 8 L. R. Q. 1'.., 
 
 186— 2.">2 
 Gimson v. Woodfall, 2 C. &P., 41-597 
 Gingell v. Glascock, 8 Bing., 86 ; 1 M. & 
 
 Scott, 125-222 
 Gladman v. Johnson, 36 L. J. (X. S.) C. P., 
 
 153—157 
 Glen V. Dungey, 4 Ex., 61 ; 14 M. & W., 
 
 4—448 
 Glcnhamr. Hanby, 1 Ld. Raym., 739— 128 
 Glover v. Coles, 7 Moore, 231 ; 1 Bing., 6 
 
 —292 
 V. llackett, 26 L. J. (X. S.) Ex., 
 
 416—418 
 Glynn v. Thoma.s, 1 Ex. , 870—271, 272, 275 
 Godts V. Rose, 25 L. J. (N. S.) C B., 61- 
 
 481 
 
 Golden v. Taylor, 2 F. & F., 110—464 
 Goldingr. Stocking, 4 L. R. Q. B., 516— 144 
 Goldsworth r. Knight — 468 
 Gooday r. Mitchell, Cro. Eliz., 441—79 
 Goode V. Jones, 1 Peake, 235-229 
 Gooding v. Bvitnall, 31 L. J. (N. S.) C. P., 
 
 4—354 
 Goodman v. Kennell, 1 M. & P., 241 ; 3 
 
 C. & P., 167—219 
 Gompertz v. Denton, 1 C. & M., 207—596 
 Gordon v. Woodford, 26 L. J. (N. S.) Ch., 
 
 222-111 
 
 V. Rolt, 4 Ex. 365—220 
 
 V. Harper, 7 T. R., 9 ; 2 Esp., 
 
 465—115, 458 
 Gorman v. Boddy, 2 C. & K., 145—496 
 Gorton v. Falkner, 4 T. R. 265—286 
 Gott V. Gandy, 2 C. L. R., 392—428 
 Graburn v. Brown, 16 M. & W., 831—403 
 Graham v. Ewart, 1 H. & X., 550; 11 
 
 Ex., 326—386 
 V. Musson, 5 Bing. N. C. 603 — 
 
 477, 536 
 
 V. Peat, 1 East, 246—345 
 
 Grant v. Hulton, 1 B. & Al., 134—368 
 Grantham r. Hawley, Hob., 132—323 
 Graves v. Weld, 2 N. & M., 725—442 
 Great Northern Railway Company (appts.) 
 
 v. Morville (resp.), 21 L. J., (N. S.), 
 
 Q. B., 319—240 
 V. Swaf- 
 
 iield— 253 
 
 2C. B. (N. S.), 344—260 
 Greatheudv. Morley, 3 M. &G., 139—382, 
 
 386 
 Greatrexf. Hayward, lEx., 291—183, 193 
 Greaves v. Ashlin, 3 Camp., 426—480, 492 
 v. Wilson, 27 L. J. (N. S.) Cb., 546 
 
 —474 
 Green r. Goddard, 1 Salk., 641-344 
 V. Jenkins, 29 L. J. (N. S.) Ch., 505- 
 
 472 
 V. Saddington, Jurist, Aug. 1, 1857 — 
 
 65, 68 
 Greene v. Jones, 1 Wm. Saun., 299, Note 
 
 6—352 
 Grecnslade v. Dower, 7 B. & C, 634 ; 1 
 
 lAl. & R. 640—515 
 
 V. Halliday, 6 Bing., 379—191 
 
 V. Tapscott, 1 C. M. & R., 55, 
 
 4Tyr., 566—314 
 Greenway v. Marshall — 569 
 V. Tichmarch, 7 M. & W., 221 
 
 —559
 
 INDEX OF CASES CITED. 
 
 xlv 
 
 Gregory V. Gregory, (G. Cooper, 201 ;) S.C, 
 
 Jacob, 631—112 
 V. West Midland Rail. Co., 3-3 
 
 L. J. (N. S.)Ex. 155—254 
 V. Piper, 9 B. & C, 591 ; 9 M. 
 
 & R., 500-212 
 V. Wilson — 471 
 
 Gregg V. Coates, 23 Beav., 33—429 
 Griffith V. Young, 12 East, 513—61, 63, 66 
 Griffiths V. Chichester, 7 Ex., 95—278 
 V. Hatchard, 1 K. & John. 17 — 
 
 478 
 V. PuIestoD, 13 M. &W., 358— 
 
 321 
 
 V. Tombs, 7 C. & P., 810—322 
 
 Griflfenhoofe r. Danbuz, 4 E. & B., 230 ; 
 
 3 C. L. R., 91 ; 5 E. &B., 746—395 
 Grimoldby v. Wells — 485 
 Grimwood r. Moss, 7 L. R. C. P., 360— 
 
 305 
 Grinstead v. Marlowe, 4 T. K. 717 — 78 
 (Trove V. West, 7 Taun., 39—143 
 Gruhb V. Brown, Weekly Reporter, Nov. 13, 
 
 1858—346 
 Gulliver v. Cosens, 1 C. B. 788—272, 273 
 Gundry v. Feltham, 1 T. R. , 334—365 
 Gurr r. Scudds, 11 Ex., 190—260, 505 
 Guy V. West, 2 Selw., N. P., 1287—131 
 Gudgeon r. Bessett, 26 L. J. (N. S.), Q. B., 
 
 36—448 
 Gnibb V. Inclosure Commissioners — 1 05 
 
 H. 
 
 Hackett v. Overseers of Long Bevington — 
 
 408 
 Hadley v. Baxeudale, 9 Ex., 341 — 509, 
 
 510, 511, 514, 533, 534 
 Haigh V. London and North Western Rail- 
 way Company, 1 F. & F., 646—152 
 Haldane v. Johnson, 1 C. L. R., 672 — 
 
 426 
 Hale V. Oldroyd, 14 M. & W., 789—170 
 Hall V. City of London Brewery Company, 
 
 31 L. J. (i\.S), Q. B., 257—463 
 V. Feamley, 3 Q. B., 919 ; 3 G. & 
 
 D., 10—351 
 V. Knox, 33 L. J. (N. S.), M. C. 1 — 
 
 376 
 V. North Eastern Railway Company, 
 
 10 L. R. Q. B., 437—253 
 V. Rogerson, Olliphant's Law of 
 
 Horses, 56—569 
 V. Smith [Swift], 6 Scott, 167—171 
 
 Hallen v. Runder, 3 Tyr., 959 ; 1 C. AL .S: 
 
 R., 266-66 
 Hallifax v. Chambers, 7 Dow., 342 ; 4 M. 
 
 & W., 662 ; 1 H. & H., 417—306 
 Halliwell v. Phillips, Jurist, July 10, 1858 
 
 — 126 
 Hamer & Straj^an v. Kuowles — 101 
 Hamerton v. Stead, 3 B. & C, 478 ; 5 D. 
 
 & R., 206-281, 412 
 Hamilton i\ Clanrlcardc (P]arl of), 1 Bro. 
 
 P. C, 341—420 
 Hammack v. White, 30 L. J. (N. S. ) Ch. 
 
 681—362 
 Hammersmith Rent Charge (In re), 4 Ex., 
 
 87—280 
 Hammond (Ex parte), 1 De Gex, B. C, 
 
 93—524 
 Hancock v. Southall, 4 D. & R. 202—603 
 Hannam v. Mockett, 4 D. & R. 518 ; 2 B. 
 
 & C. 934—345, 385 
 Hanks v. Palling, 6 E. & B., 659-479 
 Hanson v. Armitage, 5 B. & Al., 557—495, 
 
 496, 500, 503 
 Harcoiu-t y. WTiite, 30 L. J. (N. S.), Ch. 
 
 681 ; 6 Jurist, 1087—112 
 Hardcastle v. Shafto, 1 Anst., 184—312 
 r. South Yorkshire Railway 
 
 Company, 28 L. J. (N. S.) Ex., 139— 
 
 350 
 V. Soutli Yorkshire and River 
 
 Don Company, 4 H. & N. 67—138 
 Harden v. Hesketh, 28 L. J. (N. S.), Ex., 
 
 137—448, 469 
 Harman v. Reeve, 25 Law J. (N. S.) C. P. 
 
 257 ; 18 C. B. 587—505, 587, 588 
 Harmer i\ Cornelius, 28 L.J. (N. S.), C. P., 
 
 85—202 
 Harpers. Charles worth, 4 B. & C, 574 ; 
 
 6 D. &R., 572-91 
 Harris v. Hoskins, 34 L^ J. (N. S.), M. C. 
 
 145 — 376 
 
 r. Mantle, 3 T. R., 306—307 
 
 V. Ryding, 5 M. & W., 60-81 
 
 Harrison v. Barnby, 5 T. R. , 246 — 289 
 V. London, Brighton and South 
 
 Coast Railway Company, 31 L. J. 
 
 (N. S.^„ Q. B. 113—251 
 Hart V. Prendergast, 14 M. & W., 741 — 509 
 
 V. Sattley, 3 Camp., 523—503 
 
 V. Windsor, 12 M. & W., 68—425 
 
 Hartley!;. Burkitt, 4 Bing. N. C, 687—316 
 • ■ V. Harriman, 1 B. & AL, 620 ; 
 
 Holt, 617 ; 2 Stark., 212—157, 158,' 
 
 160 
 Harvey v. Bridges— 378
 
 xl 
 
 VI 
 
 INDEX' OF CASES CITED. 
 
 Harvey v. Pocock, 11 M. k W. 740—207 
 i: Grabham, o Ad. 5c K., 61 ; G N. 
 
 & .M., 754 ; 2 II. & W. 14G-332 
 Haseler v. Lemoyne, 28 L. J. ^N. S.) C. T. 
 
 103—28'. 
 Hatch V. Hale, 15 Q. B., 10-278 
 Ilawkes r. Orton, 5 Ad. & E., 367-423 
 Hawkins v. Ciurbines, 27 Law J. (N. S.) Ex., 
 
 44— 3r.7 
 Hayling v. Oakey, S Ex., 531—3.52 
 Head V. Tattei-sall— 549 
 Heale v. jrcMunay, 23 Beav., 401—411 
 lleai-d v. Caniplin, 15 Law Times, 437—413 
 Heap V. Barton, 12 C. B., 274—461 
 Hegan r. Johnson, 2 Taun., 148—290 
 Heisch r. Carrington, 5 C. & P., 471 — 
 
 483 
 Helyear v. Hawkc, 5 Esp., 71—54.5, 555 
 Heliaby r. Brown, 1 H. & N., 729—419 
 Hellyer v. Silcox, 19 Law J. (N. S.) Q. B., 
 
 295—447 
 Henchetti;. Kimpson, 2 Wils., 140—295 
 Henderson v. Eason, 18 Law J. (N. S.) 
 
 Q. B., 62; 21 Law J. (N. S.) Q. B., 
 
 82 ; 15 Law .L (N. S.) Ch. 457—452 
 Heriakendeu's Case, 4 Bep., 626 — 116, 
 
 125 
 Hetton v. English, 7 E. & B., 94—515 
 Hewitt r. Sir 0. Isham, 7 Ex., 77—127 
 Hewlins v. Shippam, 7 D. & R., 783; 5 B. 
 
 & C, 221—70, 71, 73, 74 
 Heys V. Tindall, 30 L. J. (N. S.), Q. B., 362 
 
 —468 
 Hickman v. Machin, 28 L. J. {N. S.) Ex. 
 
 311—468 
 Higgon V. Mortimer, 6 C. & P., 616 — 338 
 Higgs r. Thrale, Ollipbant's Law of Plorses, 
 
 56—570 
 Higham v. Rabbit, 5 Bing. N. C. , C22 ; 7 
 
 Dow., 653 ; 7 Scott, 827—92 
 Highmore f. Primrose, 5 M. & S., 65 ; 2 
 
 Chit., 333—64 
 Ilildreth r. Adamson, 30 L. J. (N. S.) M. 
 
 C, 204—197 
 Hill V. Balls, 2 H. & N., 299 ; 27 L. .J. 
 
 (N. S.)Ex., 45, 542, 598 
 
 V. Barclay, 18 Yes., 63—311 
 
 V. Walker, 2 Peake's Add. Cas., 234— 
 
 3 >> 
 Hill.s i: Sheppard-516 
 Hinchliffei'. Armistead, M. kW. 155— 
 
 404 
 . V. Kinnoul (Earl of), 6 Scott, 
 
 650, S. C— 88 
 Ilindle V. Pollett, 6 M. & W., 529—339 
 
 Hingeston r. Kelly, IS L. .J. Ex., 360 — 
 
 199 
 Ilitchman r. Walton, 4 j\I. & W., 400— 
 
 460, 461 
 Hobby v. Russell, 1 C. & K., 716-589 
 Hockin v. Cooke, 4 T. R , 314—481 
 Hodges V. Lawrence, 18 Jus. Pea., 347 — 
 
 284 
 
 V. Litchfield, 1 NewCa., 492—475 
 
 Hodgson V. Coates, 23 Beav., 33—429 
 
 V. Le Brett, 1 Gamp. , 233—500 
 
 ■ V. Johnson, Jurist, April 2, 1859 
 
 —67 
 i\ Midland Railway Company, 33 
 
 L. J. (N. S.) Q. B., 233 ; .and 35 
 
 L. J. (N. S.)Q. B.,. 85— 254 
 Hodsoll V. Stallebrass, 8 Dow. (P. C), 
 
 482-163 
 Hogan V. Shurpe, 7 C & P., 755—166 
 Hogg V. Norris, 2 F. & F. 246—464 
 Holbatch I'. Warner, Cro. Jac, 665 — 133, 
 
 139 
 Holder V. Coates, Moo. & M., 112—117 
 Holding V. Pigott, 7 Bing., 465—325 
 Hole V. 13arlovv, 27 L. J. (N. S.) C. P., 
 
 207—35.5, 362, 363 
 Holland v. Hopkins, 2 B. & P., 243—547 
 V. North Eastern Railway Company, 
 
 4 L. R. Ex., 254, .and 6 L. R. Ex., 
 
 123—253 
 Hollingham v. Head, 27 L. J. (N. S.) C. 
 
 •P., 241—514 
 Holloway v. Berkeley, 6 B. & C, 2 ; 9 D. 
 
 & R., 83—443 
 Holmes v. Bellingham, 23 L. J. C. P., 132 
 
 —103 
 
 V. Goring, 2 Bing., 76—88, 89 
 
 V. Hoskins, 9 Ex., 753—583 
 
 — — y. Onion, 26 L. J. (N. S.) C. P., 
 
 261—213 
 V. Wilson, 10 Ad. & E., 503—353, 
 
 354, 355 
 Holtr. Daw, 16 Q. B., 990—352 
 IIoltpz.affell V. Baker, 18 Ves., 115— 429, 
 
 430 
 Holyday v. Morgan, 28 L. J. (N. S.) Q. 
 
 B., 9—566 
 Homer v. Mellars [Mallars], Law Times, 
 
 Jan. 16, 1858-513 
 Ilomfray v. Scropc, 13 Q. B., 509—402 
 Iloneyman v. Marryatt, 6 CI., 112; 21 
 
 Beav., 14—474 
 Hood (Lord) v. Kendall, 17 C. B., 260— 
 
 123 
 Hooker v. Wilkes, 2 Stra., 1126—308
 
 INDEX OF CASES CITED. 
 
 xlvii 
 
 Hooper v. Clarke — 454 
 
 • r. Treffry, 1 Ex. , 1 7—488 
 
 Hope V. Atkins, 1 Price, 143—482 
 Hopkins v. Tanqueray, 15 C. B., 130-551 
 Horn V. Tbornborougli, 3 Ex., 846—363 
 Ilorsford v. Webster, 1 C. M. & R., 696— 
 
 276 
 Hort V. Newiy (Lord\ 1 L. J., K. B., 237 
 
 —543 
 Horwood w. Powell — 107 
 
 v_ Smith, 2 T. R., 750—600 
 
 Hoskins r. Featherstone, 2 Bro. C. C. 552 
 
 — 310 
 Ilougliton V. Bankbart, Law Times, March 
 
 12. 1859—604 
 Hoixnsell v. Smyth (Bart.) 29 L. J. (N. S.), 
 
 203, C. P. ; 7C. B. (N. S.), 731 ; 1 
 
 Law Rep., 440—138 
 Howard v. Castle, 6 T. R., 642-550 
 V. Shaw, 8 M. & W., 119-447, 
 
 448 
 V. Sheward, 2 L. R. C. P., 148— 
 
 222 
 Howe V. Palmer, 3 B. & Al., 321—495, 
 
 496, 498 
 Howell 1'. Conplaud— 474 
 
 r. Richards, 11 East, 633—313 
 
 Hudson V. Baxendale, 27 L. J. (N. S.)Ex., 
 
 93—264 
 — V. McCrea, 33 L. J. M. C, 65— 
 
 377 
 
 r. Nicholson, 5 M. &W., 535-353 
 
 r. Robert-s, 6 Ex., 697; 20 L. J. 
 
 Ex., 697—160 
 Hughes V. Bncklaud, 15 M. & W., 346— 
 
 363, 3*64 
 V. Denton, Weekly Reporter, March 
 
 12, 1859—405 
 V. GreatWestern Railway Company, 
 
 14 C. B., 637—256 
 
 -— V. Humphreys, 3 E. &B., 954—522 
 
 {Ex parte), 23 L. J. (N. S.), M.C., 
 
 138—202 
 Hull V. Morell— 298 
 and Selby Railway Company (//t ?e), 
 
 8 L. J. (N. S.) Ex., 260—168 
 
 V. Yaughaii, 6 Price, 187 — 447 
 
 Humer. Oldacre, 1 Stark. N. P. C, 351— 
 
 365 
 Iliunphries v. Brogdcn, 12 Q. B., 730-80, 
 
 81 
 Hunt V. Hecht, 8 Ex., 814-502, 503 
 
 V. Bishop, 8 Ex., 675-413 
 
 Hunter r. Gibbons, 1 H. & N., 459—356 
 r. Rice, 15 East, 100—512 
 
 Hurst I'. Hurst, 4 Ex., 571—109, 328, 
 
 438 
 
 V. Orbell, 8 Ad. & E., 107—596 
 
 Hussey v. Hussey, 5 Madd., 44 — 126 
 Hutchins t'. Chambers, 1 Burr., 579 — 286 
 
 V. Maughan, 4Gwill., 1594—398 
 
 Hutchinson c. Bowker, 5 M. & W., 235— 
 
 481 
 and Ors. v. Copcstakc, 31 L. J. 
 
 C. P., 19 Ex. Ch.— 98 
 V. York, Newcastle, and Berwick 
 
 Railway Company, 5 Ex., 343—218 
 Hutton V. Hamboro' — 103 
 V. Warren, T. & G;, 646 ; 1 M. & 
 
 W., 466 ; 2 Gale, 71—307, 320, 324 
 Hyatt r. Griffiths, 17 Q. B., 505—451 
 r. Graham, 32 L. J. (N. S.) Ex., 27 
 
 —349 
 
 I. 
 
 Ibbetsou V. Peat, 34 L. J. (N. S.) Ex., 118 
 
 —376 
 Ibks V. Richardson, IP. &D., 618 ; 9 Ad. 
 
 & E., 849—448 
 Illidge V. Goodwin, 5 C. & P., 190—220 
 Illottr. Wilkes, 3 B. & Aid., 304—390 
 Ingram v. Barnes, 26 L. J. (N. S.) Q. B., 
 
 319; 7 E^ &B., 115—207 
 Inman v. Stamp, 1 Stark. N. P., 12—64, 
 
 68 
 In.sole V. James, 1 H. & N., 243— ISO 
 Irving y. Motley, 7 Bing. , 543 — 555 
 Izone V. Gorton, 5 Bing. (N. C.) 501—429 
 
 J. 
 
 Jack V. Macintyre, 12 01. & Fin., 151 — 
 
 482 
 Jackson v. Cummins, 5 M. & W., 342— 
 
 590 
 
 V. Harrison, 2 F. & F., 282—530 
 
 V. Pesked, 1 M. & S., 234—95 
 
 r. Smithson, 15 M. & W., 563 — 
 
 167 
 
 V. Stacey, Holt, 455—91 
 
 Jacobs r. Latour, 2 M. & P. 205 ; 5 Bing. , 
 
 130-589 
 James v. Dods, 2 C. & i\r., 260 ; 4 Tyr., 
 
 101-93 
 Jaiison V. Brown, 1 Camp., 41 — 1(31 
 Jeffrey v. Walton, 1 Stark. N. P. C, 267 
 
 —480
 
 xlviii 
 
 INDEX OF CASES CITED. 
 
 Jeffreys c. Evans, 34 L. J. (X. S. ^ C. P., 
 
 •261-392 
 Jenkins v. Betham, 15 C. B., 16S— 333 
 
 & Dennis r. King, 392 
 
 !— !■. Green. 2S L. J. (N. S.) Cli., S17 
 
 —472 
 
 i\ Turner, 1 Ld. Raym., 109 ; 
 
 Salk. 662—155 
 Jenner i: Clegg, 1 Moo. & R., 213-288 
 Jenny and Runnacles r. Brook, 2 Q. B., 
 
 265; 6Q. B., 323-116, 141 
 
 V. YoUand— 287 
 
 Jesse r. Gifford, 4 Burr., 2141—87 
 Joel V. Morisou, 6 C. & P., 501 — 219 
 Jobnson V. Dodgson, 2 M. & W., 653—496, 
 
 506, 535, 536 
 V. Faulkener, 2 G. & D., 184; 2 
 
 Q. B., 925—275 
 
 V. Goldswaine, 3 Aust., 749-307 
 
 V. May, 3 Lev., 150—446 
 
 V. The Midland Railway Company, 
 
 '4 Ex., 367—232 
 r. Upham, 28 L. J. (N. S.) Q. B., 
 
 252—271 
 r. Huddleatone, 4 B. & C, 922 ; 
 
 7D. &R., 411—434,450 
 V. Usborae, 11 Ad. & E., 549— 
 
 486 
 Joliff r. Bendell, 1 Ry. & Moo., 136—567 
 Jones V. Chapman, 2 Ex., 803—344 
 
 V. Clark, 2 Bulst., 73—446 
 
 ,.. Flint, 2 P. & D., 594 ; 10 Ad. & 
 
 E., 753—59, 588 
 
 V. Gibbons, 1 C. L. R., 461-490 
 
 V. Green, 3 Y. & J., 298—312 
 
 r. Gooday, 8 M. & W., 146-356 
 
 r. Hamp (not reported) — 299 
 
 V. Jones, 31 L. J. (N. S.) Ex., 406- 
 
 358 
 
 V. Le Da\nd, 4 GwilL, 1594-393 
 
 V. Nixon, 31 L. J. (N. S.)Ex., 504— 
 
 463 
 
 V. Perry, 1 Esp., 482—160 
 
 V. Richard, 6 Ad. & E., 530—588 
 
 V. Tyler, 1 Ad. & E., 522—602 
 
 - r. ^Yilliams, 2 M. & ^Y., 326—170, 
 356 
 Jordan v. Noiion, 4 M. & \Y., 155—556, 
 
 580 
 Jordin v. Crump, 8 M. & \Y., 782—349, 
 
 350, 390 
 Judson V. Etheridge, 1 C. & M., 743 — 
 589 
 
 K. 
 
 Kavanagh r. Gudge, 7 M. & G., 316—127 
 Keats r. Cadogan (Earl), 10 C. B., 591 — 
 
 425, 553 
 Keeble r. Hickeringill, 11 East, 574 «.— 
 
 385 
 Keen v. Priest, Law Times, Feb. 12, 1859 
 
 —288, 305 
 Kelcey v. Stupples, 32 L. J. (N. S.) E.k., G 
 
 —466 
 Kelly (App.) r. Webb (Resp.), 12 C. B., 
 
 283—64 
 Kemp V. Crewes, 2 Liitw., 1580—275 
 Kendall v. Barker, 11 C. B., 842-453 
 
 V. S. E. Ry. Co., 7 L. R. C. P., 
 
 655 -252 
 Kenyon v. Hart, 34 L. J. (N. S.) M. C, 
 
 87—376 
 Keppell V. Bailey, 2 Mylne & K., 517 — 
 
 87 
 Keymer v. Summers, cited 3 T. R. , 157 — 
 
 88 
 Kiddell i: Biiniai-d, 9 M. & W., 668—542, 
 
 564, 567 
 Kidgiil V. Moore, 9 C. B., 364-77, 95 
 King V. Boston, 7 East, 481 h.— 594 
 
 V. Price, 2 Cliitt., 416—594 
 
 Kingdon v. Moss, Veterinarian, vol. xxix. , 
 
 491—212 
 Kingsmill v. Millard, 11 Ex., 313—346 
 Kinlysidet'. Thornton, 2 W. BL, 1111 — 
 
 308, 309 
 Kintrea v. Preston, 1 H. & N., 357—411 
 Kirby v. Trotter, 1 F. & F., 514—538 
 Kirkham v. Marter, 2 B. & Ad., 613 ; 1 
 
 Chitt., 382—561 
 Knibs V. Hall, 1 Esp., N. P. C, 84- 274 
 Knight V. Bennett, 3 Bing., 361; 11 
 Moore, 222—290 
 
 V. Cox, 18 C. B., 645—278 
 
 Knowles v. Blake, 5 Bing., 499-267, 268 
 V. Michel, 13 East, 249—63, 128 
 
 Ladd V. Thomas, 12 Ad. & E., 117-271, 
 
 279 
 Lancaster and Carlisle Railway Company *•. 
 
 Heaton, 28 L. J. (N. S.) Q. B., 195 
 
 —404 
 Lancaster v. Eve, 28 L. J. (N. S.) C. P., 
 
 235—469
 
 INDEX OF CASES CITED. 
 
 xlix 
 
 Langford v. Selmes, 3 K. & Jobn, 220 — 
 
 418 
 Langhton v. Iliggins, 4 11. & N., 402— 
 
 536 
 Large v. Pitt, Peake's Add. Cases^ 152 — 
 
 88, 90 
 Latham v. Atwood, Cro. Car., 515 — 442 
 Lathbury v. Earle, 27 Veterinarian, 548 — 
 
 603, 605 
 Lathropp v. Marsliam, 5 Ves., 259—310 
 Lattimore n Grairard, 1 Ex., 809 — 333 
 Last V. Dinn, 28 L. J. (N. S.) Ex., 94 — 
 
 452 
 Laugher v. Pointer, 5 B. & C, 517—228 
 Lawrance v. Faux, 2 F. & F., 435—470 
 Lawrence r. Aberdien, 5 B. & AL, 107 — 
 
 231, 232 
 V. Jenkins, 8 L. R. Q. B., 274 
 
 —139 
 
 144 
 
 V. King, 3 L. R. Q. B., 345— 
 
 ■ — V. Tolleshunt Knights, 31 L. J. 
 
 (N. S.) M. C, 148—508 
 Lawson v. Langley, 4 Ad. & E., 890—84 
 Lawton v. Lavvton, 3 Atk., 13 — 455 
 Layton v. Hurry, 8 Q. B., 811 — 270 
 Leach v. Thomas, 7 G. & P., 327 ; 2 M. & 
 
 W., 427-307, 428, 460 
 Leader v. Homewood, 27 L. J. (N. S.) C. 
 
 P., 316—459 
 Leake's (Sir F. ) Case, Dyer, 365 ; 1 Sauu. , 
 
 206—135 
 Leame v. Bray, 3 East, 593 ; 5 E.sp., 18 — 
 
 155 
 Learson v. Robinson, 2 F. & F., 351—471 
 Leath v. Vine, 30 L. J. M. C, 207—377 
 Lee V. Riley, 34 L. J. (N. S.) C. P. 212— 
 
 140 
 
 V. Risdon, Taun., 189-69 
 
 V. Unwin, 263 
 
 V. Bayes and Robinson, 18 C. B., 599 
 
 —697 
 V. Cooke (in Error), 28 L. J. (N. S.) 
 
 Ex., 337—302 
 
 V. Muggeridge, 5 Taun., 36 — 64 
 
 V. Stephenson, 27 L. J. (N. S.) Q. B., 
 
 263—74 
 Leeds v. Burrows, 12 East, 1 — 332 
 
 V. Chectham, 1 Sim., 146 — 429 
 
 Legg V. Pardoe, 30 L. J. (N. S.) M. C, 
 
 108-381 
 Legh V. Hewitt, 4 East, 154—315 
 Leigh V. Patcrson, 2 Moore, 588 - 492, 493 
 
 V. Heald, 1 B. & Ad., 622-109 
 
 Lemayne v, Stanley — 535 
 
 Lethbridge f . Lethbridge, 31 L. J. (N S.) 
 
 Ch., 737—463 
 Letticc V. Judkin.s, 9 L. J. (N. S.) Ex., 
 
 142—229 
 Lewis V. Bond — 471 
 V. Cosgrave, 2 Taun., 2—558 
 
 V. Harris, 1 H. Bl., 7 n-290 
 
 r. Peake, 7 Taun., 152—558 
 
 V. Read, 13 M. & W., 834—278 
 
 V. Rogers, 1 C. M. & R., 48 — 523 
 
 Lexington v. Clark, 2 Vent., 223^277 
 Ley V. Peter, 27 L. J. (N. S.) Ex., 239— 
 
 422 
 Liddard v. Kain, 2 Bing., 183 ; 9 Moore, 
 
 356—563 
 Lidstor v. Barrow, 9 Ad. k Ell., 654 — 
 
 368 
 Liebenrood v. Vines, 1 Meriv., 15—312 
 Li ford's Case, 11 Rep., 51 6—109, 127 
 Liggins V. Inge, 5 M. & P., 712 ; 7 Biug., 
 
 682-73, 172, 174 
 Lilley V. Elwin, 11 Q. B., 742—200, 202 
 Lillie V. Legh — 471 
 Liudon r. Hooper, Cowp., 414—272, 273, 
 
 274 
 — — V. Collins, Wille.s, 429-280 
 Line 2'. Stephenson, 5 Bing. (N. C), 183 — 
 
 411 
 Limijus V. Gen. Omnibus Co., 32 L. J. 
 
 Ex., 34—218 
 Lindsay v. Leigh, 11 Q. B., 455—201 
 Lisburne (Earl) v. Davids, 1 L. R. C. P., 
 
 259—346 
 Littlefield v. Shee, 2 B. & Ad., 811—64 
 Livington v. Ralli, 3 C. L. R., 1096 — 
 
 490 
 Llandaff v. Lyndon, 30 L. J. (N. S.), 
 
 C. P. M. C, 192-526 
 Lloyd V. Da vies, 2 Ex., 103-411 
 
 V. Walkey, 9 C. & P., 771-602 
 
 V. Winton, 2 Wils., 28—280 
 
 Lochv. Matthews, W. R., Feb. 14, 1863 
 
 —463 
 Loder v. Kekule, 27 L. J. C. P., 27—511 
 
 V. Bartlett, 31 L. J. (N. S.) Ex., 92 
 
 —533 
 
 Logan V. Lemusier, 6 Pr. C, 116—536 
 
 London and North Western Railway Com- 
 pany (apijs.) V. Dunham (resp.), 18 
 C. B., 826-243 
 
 London and Westminster Loan Cumiiany v. 
 Drake, 69 
 
 Lonsdale (Eari of) v. Nelson, 2 B. & C, 
 311-114 
 
 V. Rigg -379 
 
 d
 
 1 
 
 INDEX OF CASES CITED. 
 
 Longmead v. Holliaay, 20 L. J. Ex., 430 
 
 —140 
 LongstaflF i\ Meagoc, 4 N. & M, 211 ; 2 
 
 Ad. &E., 167— 4(!1 
 Lord r. City of Sydney, 12 Moo., 473-104 
 Loring v. \Varburton, 11 Ex., 870 ; 2.^) 
 
 L. J. (N. S.) Ex., 125 ; 28 L. J. 
 
 (N, S.)E]i., 31—274 
 Lorymer v. Smith, 1 B. & C, 1—482 
 Louth V. Druinmond (cited in Manley 
 
 Smith's "Law of Master and Ser- 
 vant," 48)— 203 
 Lowe V. Peers, 4 Burr., 2225—110 
 
 V. Ross, 5 Ex,, 553— 44.'i 
 
 Lowden v. Kay, 6 D. &R., 20 ; 4 B. & C, 
 
 3-143 
 Lowndes r. Fountain, 11 Ex., 487—336 
 Lovel) V. Smith, 3 C. B., 120-87 
 Lumley v. Hodgson, 16 East, 99 — 425 
 Lucas V. Novosilieski, 1 Esp., 296 — 199 
 
 r. Tarleton— 296 
 
 Lucy v. Mouflet— 485, 529 
 Lurting v. Conn, 1 Jr. Ch. Rep., 23—310 
 Lyde v. Russell, 1 B. & Ad., 394—462 
 Lynch v. Nurden, 1 Q. B., 37 ; 4 P. & D., 
 
 677—350 
 Lyon V. Mells, 5 East, 428—234, 236 
 Lyons v. Martin, 8 Ad. k E., 512—211 
 
 M. 
 
 :vral.erley v. Shepherd, 10 Bing., 99—497 
 McCance, v. London and N. W. Rail. Co., 
 
 31 L. J. (N. S.), 65 ; 34 L. J. (N. S.) 
 
 Ex., 39—252 
 Machell v. EllLs, 1 C. & K., 682—270 
 Macintosh t\ Trotter, 3 M. & W., 184—461 
 Mackenzie v. Cox, 9 C. & P., 632—602 
 
 V. Hancock,Ry. & Moo. , 436 - 593 
 
 M'Kinnon v. Pen.son, 9 Ex., 609 ; and 23 
 
 L. J. (N. S.) M. C, 97-103 
 M'Kone v. Wood, 5 G. & P., 1-161 
 Maclaughlin v. Pryor, 4 M. & G., 48—220 
 Macraanus u Cricket, 1 Ea.st, 106 — 211 
 V. Lanca-shire and Yorkshire 
 
 Railway Co., Law Times, Feb. 20,1858; 
 
 28 L. J. (N. S.) Ex., 353—247, 254 
 Macnolty V. Fitzherbert, 27 L. J. (N. S.) 
 
 Ch., 272—431 
 Magor v. Chadwick, 11 Ad. & E., 571 — 
 
 180, 182 
 Mackin.son v. Rawlinson, 9 Price, 460 — 561 
 Mal.iehy v. Snper, 3 Bing. (N. C), 371 ; 3 
 
 Scott, 723—163 
 
 Malins c. Freeman — 540 
 Manchester, Sheffield, and Lincolnshire 
 Rail. Co. (app.) v. Wallis (resp.), 14 
 
 C. B., 213-148 
 
 Mann v. Lovejoy, Ry. & Moo., 355— 290, 415 
 Manning r. Lunn, 2 C. & K., 13—279, 439 
 
 V. Wasdale, 5 Ad. & E., 758—78 
 
 Mant V. Collins, 8 Q. B., 916—456 
 Margetsou r. Wright, 1 M. & Scott, 622 ; 
 
 8 Bing., 454 ; 7 Bing., 603 : 5 M. & 
 
 P., 696—571 
 Marfell v. South Wales Rail. Co., 29 L. J. 
 
 (N. S.) C. P., 315; 8 C. B., 525-152 
 Marker v. Kenrick, 13 C. B., 188—309 
 Marlborough (Duke of) v. Osborn — 453 
 Marlow v. Thompson, 1 Dow. P. C. (N. S.), 
 
 575-418 
 Marson v. Short, 2 Bing. (N. C), 111—559 
 Martin v. Cogan, 1 Hog., 120—308 
 V. Coulman, 4 L. J. (N. S.) K. E., 
 
 37—329 
 V. Gilham, 2 N. & P., 568 ; 7 A. 
 
 & E., 540—309 
 
 V. Knollys, 8 T. R., 145—116 
 
 V. Roe, 7 E. & B., 237—432 
 
 V. Wallace— 585 
 
 Martindale v. Smith, 1 Q. B., 389 ; 1 Q. 
 
 & D., 1—495 
 Martyn (Adx. ) f . Clue, 18 Q. B., 661 — 
 
 306, 427 
 Mason v. Hill, 5 B. & Ad., 1 ; 3 B. & Ad., 
 
 304; 2 N. & M., 747—173, 174, 
 
 175, 176 
 
 V. Newland, 9 C. & P., 575—270 
 
 V. Welbank [Welland], Skin., 238 
 
 —446 
 Massey v. Goodall, 17 Q. B., 510—337 
 Masters v. Pollie, 2 Roll. Rep., 141—117 
 Matson v. Cook, 6 Scott, 179 ; 4 Bing. 
 
 (N. C), 392—343 
 Mathe-son v. Hart, 2 C. L. R., 314 -438 
 
 V. Parker, Oliphant, 343-570 
 
 Matthews v. Leapingwell, 3 C. B., 912— 401 
 May r. Burdett, 9 Q. B., 121—155, 167 
 Mayfieldu Wadsley, 3 B. & C, 357 ; 5 
 
 D. &R., 224-60, 67 
 Mechclenv. Wallace, 2 N. & P., 224s 7 
 
 Ad. &E., 49; W. &W. &D., 40—66 
 Meddins v. William.s, Times, Feb., 1858— 
 
 386- 
 Meggison i'. 'Lady Glamis, 7 Ex., 685—296 
 Mellish V. Motteux, 1 Peake, 115—551 
 Mennie v. Blake, 6 E. & B., 842—298 
 Meres v. Ansell, 3 Wils., 275-482 
 Meredith v. Megli, 2 E. & B., 364-503
 
 INDEX OF CASES CITED. 
 
 li 
 
 Merivale v. Exeter Road Trustees, 3 L. R. 
 
 Q. B., 149—141 
 Mesnard v. Aldridge, 3 Esp., 271—550 
 Metcalfe v. Lumsden, 1 C. & K., 309—229 
 Metropolitan Association for Improving the 
 
 Dwellings of the Poor v. Fetch, 27 
 
 L. J. (N. S.) C. P., 330—77 
 Mews V. Carr, 1 H. & N., 484—477 
 Micklethwait v. Micklethwait, 28 L. J. 
 
 (N. S.)C. P., 121—113, 125 
 Middleton v. Gale, 8 Ad. & E., 155-377 
 Mildred v. "Weaver — 106 
 Miles V. Harris — 304 
 
 V. Sheward, 8 Eas., 7—462 
 
 Milieu V. Fandrye, Pop., 161 — 367 
 Miller v. Green, 2 C. & J., 143 ; 2 Tyr., 
 
 1 ; 8 Bing., 92 ; 1 M. & Scott, 199— 
 
 291 
 Mill V. Commissioners of the New Forest, 
 
 18 C. B., 60—85 
 Millichamp v. Johnson, "Willis, 202—349 
 Milligan v. Wedge, 12 Ad. & E., 737— 
 
 228 
 Minshall v. Lloyd, 2 M. & W., 450-461 
 Minshull v. Oakes, 27 L. J. (N. S.) Ex., 
 
 194—427 
 MitcheU v. Crasswaller, 22 L. J. (N. S.) C. 
 
 P., 100—219 
 Mondel v. Steele— 536 
 Monmouthshire Canal Co. v. Harford, 1 
 
 C. M. & R., 614-82, 83 
 Moody V. Dean and Chapter of Wells; 1 H. 
 
 & N., 40—439 
 Morden v. Porter, 29 L. J. (N. S.) M. C, 
 
 226—378 
 Morgan v. Abergavenny (Earl), 8 C. B., 
 
 768—375, 382 
 V. Bissell, 3 Taun., 65—308, 410, 
 
 414 
 Morley v. Attenborough — 528 
 
 V. Pincombe, 2 Ex., 101—285 
 
 Moore v. Plymouth (Lord), 7 Taun., 316 — 
 
 384 
 V. Rawson, 5 D. & R., 234 ; 3 B. & 
 
 C, 332—77, 87 
 
 V. Webb, 1 C. B. (N. S.), 673-181 
 
 Moreten v. Porter, 29 L. J. M. C, 213 — 
 
 377, 381 
 Moreton v. Harden, 4 B. & C, 223—216 
 Morris v. Jeffries, 1 Q. B., 261—154 
 V. Norfolk (Duke of), 9 Sim., 472- 
 
 403 
 
 V. Morris, 1 Hog., 238—308 
 
 V. Nugent, 7 C & P., 572—161 
 
 Mortimer v. Preedy, 3 M. &\V., 602—426 
 
 Morton v. Tibbett, 15 Q. B., 428-501, 
 
 502, 503 
 Mottt;. Turnage, 1 F. & F., 6—413 
 Mounsey v. Ismay, W. R., Jan. 24, 1SG3, 
 
 349 
 Mousley v. Saint — 347 
 Mouseley v. Ludlam, 21 L. J. (N. S.) Q. 
 
 B., 64—329 
 Moxon V. Savage, 2 F. k F., 182-349 
 Mum V. Fabian— 454 
 Mumford v. Oxford and Worcestershire 
 
 Railway Company, 1 H. & N., 34-95 
 Muncey v. Dennis, 1 H. & N., 216-325 
 Murgatroyd v. Robinson, 26 Law J. (N. S.) 
 
 Q. B., 233—86 
 Murray v. Mann, 2 Ex., 588—556 
 V. East India Company, 5 B. & 
 
 Aid., 204—210 
 Muskett V. Hill, 7 Sc, 855 ; 5 Bing. 
 
 (N. C), 694—309 
 
 N. 
 
 Nargatt v. Nias, 28 L. J. (N. S.) Q. B., 
 
 143-286 
 Neale v. Cripps, Law Times, Jan. 22, 1859, 
 
 115 
 
 V. Wyllie, 3 B. & C, 533—427 
 
 Neal V. Swind, 2 C. & J., 377—448 
 
 V. Viney, 1 Camp., 471 — 460 
 
 Nethorpe'y. Holgate, 1 Coll., 203—419 
 Nesbitt V. Meyer, 1 Swan, 223—311 
 Newall (Ex parte), 3 Deac, 333—524 
 Newcastle (Duke of) v. Hundred of Brox- 
 
 towe, 4 B. & Ad., 273-430 
 Newman v. Cardinal, 2 F. & F., 840—303 
 Newport (Mayor of) v. Saunders, 3 B. &; 
 
 Ad., 411 — 518 
 Newson v. Smythies, 29 L. J. (N. S. ) C. 
 
 P., 97—331 
 Newton v. Allin, 1 Q. B., 518 ; 1 G. & 
 
 D., 44—437 
 V. Harland, 1 Man. & G., 644— 
 
 378 
 
 V. Wilmot, 8 M. & W., 711 — 385 
 
 Nicholson v. Bower, 28 L. J. (N. S.) Q. 
 
 B., 97—504 
 Nichols V. Chapman — 101 
 V. Hall— 490 
 
 Nicklin v. Williams, 10 Ex., 
 
 100, 101 
 Nicoll V. Greaves, 33 L. J. (N. 
 
 259—201 
 V. Goots — 530 
 
 259—80, 
 
 S.) c. r., 
 
 d 2
 
 Hi 
 
 INDEX OF CASES CITED. 
 
 Nixon r. Freeman, '20 L. J. (N. S.) Ex., 
 
 271—282 
 Kokes V. Gibbons, 20) L. J. (N. S.) Cli., 
 
 20S, 433—311 
 Norfolk (Duchess of) v. Wiseman— 384 
 Norman r. Bell. 2 B. & Ad., 191—523 
 
 V. Phillies, 14 M. & W., 277-503 
 
 V. Wescombc, 2 M. & W., 349— 
 
 352 
 North Eastern Railway Company v. Elliot 
 
 —100 
 V. Cros- 
 
 land— 100 
 North r. Smith, 10 C. B., 572-362 
 Northam r. Hurley, 1 E. & B., 665-189, 
 
 191 
 Nortbam])ton (Mayor of) v. Ward, 1 Wils., 
 
 107 ; 2Strac., 1238-517 
 Norton v. Herron, 1 C. & P., 648—420 
 Norwood r. Pitt, 29 L. J. (N. S.) Ex., 127 
 
 — 358 
 Nowlan v. Ablctt, 2 C. M. & R., 54—207 
 Noye V. Reed, 1 M. & R., 63—131 
 Nuttall V. Staunton, 6 D. & R., 155 ; 3 B. 
 
 & C, 51—290, 291 
 
 0. 
 
 Oastler v. Pound, N. R., Feb. 14, 1863- 
 
 536 
 Ockeuden [Oekleden], 6 Henley, 27 L. J. 
 
 (N. S.) Q. B., 361-477 
 Odiham v. Smith, Cro. Eliz., 589-444 
 Ongley v. Gardiner, 4 M. & W., 496—83, 
 
 84 
 On.slow V. Eames, 2 Stark, 81—310, 568 
 Orchard v. Rackstraw, 9 G. B., 698—576 
 
 V. Simpson, 2 C. B. (N. S.), 299 
 
 — 494 
 Orr r. Fleming, Weekly Reporter, vol. 1, 
 
 339—157 
 Osbond V. Meadows, 31 L. J. (N. S.) M. 
 
 C, 238-377 
 Osborne v. Harvey, 1 You. & Coll. (N. C), 
 116-124 
 
 V. Wise, 7 C. & P., 751-88 
 
 Oswald V. Earl Grey, 24 L. J. (N. S.) Q. 
 
 P.., 69—419 
 Oughton V. Scppings, 1 B. & Ad., 241 — 
 
 345 
 Owens V. Denton, 1 G. M. & R., 711 — 
 
 522 
 Owen V. Leigh, 3 B. & Al., 470-293 
 Oxley V. James, 13 M. & W., 209—290 
 
 Oxley r. W^atts, 1 T. R., 12-344 
 Oxendalc v. Wetherall, 9 B. & C, 336 ; 4 
 
 M. & Ry., 429—491 
 Oxford, Worcester and Wolverhampton 
 
 Railway Co. (inre) (ex parte) jDeviaccs 
 
 of Milward, 29 L. J. (N. S.) Ch., 215 
 
 —539 
 
 Page (Exor.) v. Pavey, 8 C. & P., 769— 
 
 488 
 Pain V. Coombs, Law Times, May 2 and 
 Oct. 10, 1857—311, 415, 471 
 
 V. Patrick, 3 Mod., 294—79 
 
 Pad wick v. King, 29 L. J. (N. S.) M. C. 
 42-381 
 
 -y. Tyndale, 28 L. J. (N. S.) Q. B., 
 
 90-443 
 Palmer v. Temple — 478 
 
 V. The Grand Junction Railway 
 
 Company, 4 M. & W., 749—232 
 Pannell v. Mill, 3 C. B., 625—385 
 Pardington v. South Wales Railway Com- 
 pany, 1 H. & N., 392-244, 245, 
 248 
 Parish v. Sleeman, 29 L. J. (N. S.) Ch., 
 
 53, 97—407 
 Parker v. Great Western Railway Company, 
 7 M. & G., 253, 7 Scott N. R., 835 
 274 
 
 V. Ibbetson, 26 L. J. (N. S.) C. P., 
 
 26-203 
 
 i: Mitchell, 11 Ad. & E., 788 ; 3 P. 
 
 & D., 655—84 
 
 V. Wallis, 5 E. & B., 21-503 
 
 V. Staniland, 11 East, 362—52 
 
 V. Taswell, 27 L. J. (N. S.) Ch., 812 
 
 — 414 
 Parkinson v. Lee, 2 East, 322—528 
 Parmenter v. Webber, 8 Taun., 593 ; 2 
 
 Moore, 656—289 
 Parrington v. Moore, 2 Ex., 223—364 
 Parrott v. Anderson, 7 Ex., 93—277 
 Parry v. Deere, 2 H. & W., 395 ; 1 N. & 
 
 P., 47 ; 5 Ad. &E., 551—417 
 Parsons v. Se.xton, 4 C. B., 899—484 
 Partridge v. Scott, 3 M. & W., 220 — 
 
 101 
 Patrick v. Golerick, 3 M. & W., 483— 
 
 348 
 Patteshall v. Tranter, 3 Ad. & E., 103, 4 
 
 N. & M., 649—574 
 Patten v. Guukl, 7 Taun., 408—424
 
 INDEX OF CASES CITED. 
 
 liii 
 
 ratten V. Rea, 26 L. J. (N. S.) C. P., 235 ; 
 
 2 C. B. (N. S.), 606—214 
 Payne v. Cave, 3 T. U.', 148—550, 592 
 
 V. Haine, 16 M. & W., 541—427 
 
 V. Rogers, 2 H. Bl., 849—132 
 
 V. Shedden, 1 M. &Rob., 382—87 
 
 V. Whale, 7 East, 274—595 
 
 Peacock v. Harris, 10 East, 104—64 
 
 V. Purvis, 5 Moore, 79 ; 2 B. & 
 
 B., 362—294, 295 
 Peate v. North Staffordshire Railway 
 Company, 27 L. J. (N. S.) Q. B., 
 465—243 
 Pearce v. Lodge, 12 Moore, 50 — 344 
 Pearson v. Spencer, 1 B. & S., 571, 584—89 
 Peer V. Humphreys, 2 Ad. & E., 495; 4 
 
 N. & M., 430—597 
 Penley v. Watts, 16 L. J. (N. S.) Ex., 229 
 
 —427 
 Penny v. Porter, 2 East, 2—490 
 Penton V. Brown, 1 Sid., 186—284 
 
 V. Robart, 2 East, 88—455, 460, 
 
 461 
 Perkins v. Potts, 2 Chitt., 399—332 
 Perry v. Fitzhowe, 15 L. J. (N. S.) Q. B., 
 
 239—358 
 Petch V. Tutin, 15 M. & W., 110—323 
 Peter v. Knoll, Cro. Eliz., 32—444 
 Peters -y. Blake, 6 L. J. (N. S.)Ch., 157- 
 126 
 
 V. Clarson, 13 L. J. (N. S.) M. C, 
 
 153—351 
 Peterson v. Ayre, 13 C. B., 363—492 
 Peyton v. Watson, 3 Q. B. , 658—403 
 Phillips V. Barlow, 14 L. J. (N. S.) Ch., 
 35—127 
 
 V. Smith, 14 M. & W., 589—122' 
 
 V. Wood, IN. & M., 434—576 
 
 Philpotts V. Evans, 5 M. & W., 475-492 
 Pickering -y. Busk, 15 East, 45—554 
 
 V. Earl Stamford, 2 Yes. Jun., 272 
 
 —112 
 Pierce v. Corf — 477 
 
 -V. Webb, 3 Br. Ch. R., 16-316 
 
 Pigott?;. Bullock, 1 Yes. Jan., 478—111, 
 121 
 
 V. Birtles, 1 M. & W., 441—286. 298 
 
 — V. Eastern Counties Railway Com- 
 pany, 3 C. B., 229—217 
 Pike V. Eyre, 9 B. & C, 909 ; 4 M. & Ry., 
 
 661—290 
 Pinchon v. Chicott, 3 C. & P., 236—64 
 Pinder t). Button, W. R., Nov. 15, 1862— 
 
 526 
 Pinhorn v. Soustcr — 282 
 
 Pinnington v. Galland, 1 C. L. R., 819 — 
 
 477 
 Pipe V. Fulcher, 28 L. J. Q. B., 12—105 
 Pitt V. Shew, 4 B. & Aid., 206-69 
 Pleasant v. Benson, 14 East, 234—68 
 Pluckwell V. Wilson, 5 C. & P., 375—220 
 PoUittv. Forest, 1 C. & K.,560; 11 Q. 
 
 B., 949—291 
 Pomfret v. Ricroft, 1 Saun., 322 c— 94, 
 
 109, 147 
 Poole V. Bentley, 12 East, 168—414 
 V. Huskisson, 11 M. & W., 827—91, 
 
 197 
 V. Longueville, 2 Saun., 290—135, 
 
 275, 284 
 
 V. Tunbridge, 2 M. & W., 67—426 
 
 Porritt V. Baker, 10 Ex., 759; 1 C. L. R., 
 
 432—375 
 Portman v. Middleton, 27 L. J. (N. S.) C. 
 
 P., 231—509 
 Potter ('. Faulkner, 31 L. J., Q. B., 30— 
 
 217 
 V. Parry, Weekly Reporter, Jan. 
 
 29, 1859—134 
 Poulter i'. Killingbcck, 1 B. & P., 397 
 
 57, 66 
 Poulton V. Lattimore, 9 B. & C, 259— 
 
 486 
 Pounsett V. Fuller, 17 C. B., 660—388 
 Pow V. Davis, 30 L. J. (N. S.) Q. B., 2.")7 
 
 —467 
 Powell V. Edmunds, 12 East, 6—480 
 
 V. Salisbury, 2 Y. & J., 391—139 
 
 Power V. Welles, Cowp. 818—594 
 Powis V. Smith, 5 B. & Al., 850—289 
 Powley V. Walker, 5 T. R., 373—306 
 Powys y. Blagrave, 24 L. J. (N. S.) Ch., 
 
 142—112 
 Pownall V. Moores, 5 B. & AL, 416—338 
 Pratt V. Brett, 2 Madd., 62—309 
 — - V. Brown, 8 C. &. P., 244—340 
 Preece v. Corrie, 5 Bing., 24—289 
 Price V. Harrison, 29 L. J. (N. S.) C. P., 
 
 35—332 
 
 V. Leyburn, Gow. N. P. C, 109—63 
 
 • V. Williams, 1 M. & W., 6—472 
 
 V. Woodhouse, 1 Ex,, 559—297, 444 
 
 Prickett v. Badger, 1 C. B. (N. S.), 296— 
 
 475 
 Priestley v. Fowler, 3 M. & W., 1—215, 
 
 217 
 Prince v. Lewis, 5 B. & C, 363; 8 D. & 
 
 R., 121-518 
 Pritchett v. Honeybourne, 1 Y. & J., 135 
 
 — 401
 
 INDEX OF CASES CITED. 
 
 Proctor V. Hodgson, 24 L. J. (X. S.) Ex., 
 
 195_S9, HO 
 Protheroe r. Matthe^vs, 5 C. &P., 581—368 
 Proudlove v. Tweralow, 1 C. & M,, 326 ; 
 
 3 Tyr., 260—294, 305 
 Pryce r. Burn, 5 Ves., 681 — 112 
 Pulteney v. Shelton, 5 Yes., 147—310 
 Pyer ». Carter, 26 L. J. (N. S.) Ex., 258 
 
 —74, 105 
 Pyke V. Eyre, 9 B. & C, 909—69 
 Pym r. Campbell — 465 
 p'jTie V. Dor., 1 T. R., 55—110 
 
 Q. 
 
 Quarman r. Burnett, 6 M. & W., 449— 
 
 213, 228 
 Quaylc r. Davidson, Law Times, March 5, 
 
 1859-516 
 
 E. 
 
 Rabbeth [Rabbett] v. Squire, 19 Beav., 70 
 
 —449 
 Race r. Ward, 7 E & B., 784 ; 4 E. & B., 
 
 702—77, 79 
 Rackham v. Marriott, 1 11. & N., 234 ; 2 
 
 H. & N., 196—508, 509 
 Radnor v. Evans — 108 
 Ramsden v. Hirst [Hurst], 27 L. J. (N. S.) 
 
 Ch., 482—476 
 Ramsbottom v. Mortley, 2 M. & S., 445— 
 
 418 
 Randall v. Roper, 27 L. J. (N. S.) Q. B., 
 
 266—513 
 
 V. Raper— 468 
 
 Randeau v. Wyatt— 485 
 Randell v. Trimen — 467 
 Rankin r. Lay, 29 L. J. (N. S.)Ch., 734— 
 
 472 
 Rawstron v. Taylor, 11 Ex., 369— 178, 184, 
 
 187 
 Rayner v. Stone, 2 Eden, 128—310 
 Raynor v. Childs, 2 F. & F., 775—251 
 Readr. Edwards, 34 L. J. (N. S.) C. P., 
 
 31—391 
 V. Fairbanks, 22 L. J. (N. S.) C. P., 
 
 206 ; 13 C. B., 692—560 
 
 r. King, Times, Jan. 27, 1858—165 
 
 Reay v. Rawlinson — 67 
 
 Rcve r. Reeve, 1 F. & F., 280—199 
 
 Regent's Canal Company v. Ware, 26 L. J. 
 
 (N. S.) Ch., 566—476 
 
 Regina ?•. Almfv & Spencer, Jurist, Aug. 
 
 8, 1857—372 
 V. Aylesford, 29 L. .L (N. S.) M. 
 
 C. 83—470 
 V. Bedwell, 24 L. J. (N. S.) M. 
 
 C, 17—202 
 V. Brooks and Gibson, 2 Cox C. C, 
 
 436—370 
 
 V. Bryan, 7 Cox C. C, 599 
 
 V. Cheafor, 5 Cox C. C, 367—344 
 
 ■ V. Commissioners of Land Tax for 
 
 Tower Division, 1 C. L. R., 828—438 
 
 V. Crawley, 3 F. & F., 109-529 
 
 ^,. Cridland, 27 L. J. (N. S.) M. 
 
 C, 28—102, 373, 377, 381 
 
 V. Dant, 34 L. J., M.C., 119—167 
 
 V. East IMark (Inhabitants of), 3 
 
 Cox C. C, 60—91 
 
 V. Edge (not reported) — 371 
 
 V. Egerton, R. & R., 375—515 
 
 Friend (Clerk), 28 L. J. (N. S. ) 
 
 M. C, 169—406 
 
 V. Freyke, 7 Cox. C. C, 32—340 
 
 V. Garnham, 2 F. & F., 347—382 
 
 Goodbody, 8 C. & P., 665—226 
 
 , V. Goodchild, 27 Law J. (N. S.) 
 
 M. C, 233—404, 407, 408, 409 
 r. Goodchild and Lamb, 27 L. J. 
 
 M. C, 251—406 
 
 1), Groves, (clerk), 409 
 
 V. Grundell, 9 C. & P., 365—224 
 
 V. Hawkhurst (Inhabitants of) — 102 
 
 V. HayA\'ard, 1 C & K., 518—223 
 
 V. Head, 1 F. & F., 350—375 
 
 V. Hey, 1 Den. C. C, 602—226 
 
 V. Hornsea, 23 L. J. (N. S.), M. C, 
 
 59—169 
 V. Inhabitants of Madeley, 15 Q. 
 
 B., 43—400 
 
 v. Jarvis, 3 F. & F., lOS— 529 
 
 t\ John.son — 102 
 
 V. Kenrick, 5 Q. B., 64—598, 599 
 
 V. Lady Joan Young, 4 Cooke's 
 
 Reports, pt. 7, p. 82—345 
 
 V. Lamb, 27 L. J. (N. S.), M. C, 
 
 233—405 
 V. Lyon, 1 F. & F., 54—222 
 
 V. Matty, 27 L. J. (N. S.) M. C, 
 
 59 
 
 V. Mills, 7 Cox C. C, 263—224 
 
 V. Musson, 27 L. J. (N. S.) Q. B., 
 
 222 ; M. C, 100—169, 170 
 
 V. Nickless, 8 G. & P., 737—369 
 
 V. Parker, 33 L. J. (N. S.) M. C, 
 
 135—392
 
 INDEX OF CASES CITED. 
 
 Iv 
 
 Regina v. Pearson — 104 
 
 V. Pratt, 24 L. J. (N. S.) M. C, 
 
 113 ; 3 L. R. Q. B., 64—141, 370, 
 
 377 
 V. Q. Prestney, 3 Cox C. C, 505 
 
 —371 
 V. Privett and Goodhall, 1 Den. C. 
 
 C, 193—224 
 V. Sir J. Ramsden, 27 L. J. (N. S. ) 
 
 M. C, 296 — 133 
 
 V. Read— 379 
 
 V. U. K. Telegraph Co. Lim., 31 
 
 L. J. M. C, 166—102 
 
 V. Riley, 3 C. & K., 116—371 
 
 V. Robinson, 28 L. J. (N. S.) M. C, 
 
 58—345 
 
 V. Stevenson, 3 F. & F., 106—529 
 
 V. Stoke-upon-Trent, 5 Q. B., 303 
 
 —199 
 
 V. Sylvester— 563 
 
 ■ — V. Tithe Commissioners, 12 Q. B., 
 
 459—399, 401 
 V. Inhabitants of Thurlstone, 28 L. 
 
 J. (N. S.) M. C, 106—383 
 V. Uezzell, 20 L. J. (N. S.) M. C, 
 
 192—369 
 
 V. Waley, 1 F. & F., 528—370 
 
 V. Wall, 2 Cox C. C, 288—370 
 
 V. Western, 1 L. R. C. C, 122— 
 
 369 
 
 - V. Whaddon, 10 L. R. Q. B., 230 
 -120 
 
 - V. Whitaker, 3 Cox C. C. , 50—369 
 
 - V. Whiteman, 1 Peers. C. C, 353 
 -736 
 
 - V. Wood, 7 Cox C. C, 106—370, 
 
 371 
 
 ■ V. Woods, 27 L. J. (N. S.) Q. B., 
 
 433 ; M. C, 289, 441 
 V. Wycombe Ry. Co., 29L. J.(N.S.) 
 
 Ch., 462—539 
 Reiguolds v. Edwards, Willes, 282—89 
 Rex V. Addis, 6 C. & P., 388—270 
 
 V. Arlington, 1 M. & S., 622—208 
 
 ■ • V. Althorne, 2 B. & C, 211—208 
 
 ■ V. Berenger, 3 M. & S., 73—197 
 
 V. Birdbrook, 4 T. R. 245—208 
 
 V. Bishop Hatfield, 2 Bott., 217— 
 
 208 
 
 V. Bradshaw, 7 C. & P., 233—269 
 
 V. Buckland Denham, Burr. S. C, 694 
 
 — 208 
 
 ■ • V. Bucknall— 133 
 
 V. Doddridge, cited Weekly Reporter, 
 
 May 30, 1857—599 
 
 Rex V. Dodderhill, 3 M. & S., 243—208 
 V. Empingham, 2 Bott. 217 ; Burr, 
 
 S. C, 791—208 
 V. Ferrybridge, 2 D. & R. 634 ; 1 B. 
 
 &C., 375 — 119 
 
 V. Flecknow, 1 Burr., 461—134 
 
 V. Great Yarmouth, 5 M. & S., 114 
 
 —208 
 
 V. Hampreston, 5 T. R., 205—208 
 
 V. Hoseason, 14 East, 605—209 
 
 V. H. Hughes, 1 Ry. & Moo., 370— 
 
 225, 227 
 
 V. King, 2 Chitt., 217—367 
 
 V. Lambeth, 4 M. & S., 315—208 
 
 V. Lockerley, Burr. Sc. , 315 — 267 
 
 V. Londonthorpe, 6 T. R., 377—459 
 
 V. Lord Yarborough (in error), 1 Dow. 
 
 &C., 178; 3 B. &C.,91 ; iD.Jk'R., 
 
 790—168 
 V. Macnamee, 1 Ry. & Moo., 368 — 
 
 225, 226, 227, 228 
 1'. Minchinhampton, 3 Burr., 1308 — 
 
 119 
 
 -V. Mirfield, 10 East, 219—119, 120 
 
 V. Narbeth North, IP. & D., 590 ; 
 
 9 Ad. & E., 815—119 
 -v. Nettleton, 1 Ry. & Moo., 259— 
 
 225 
 
 V. North Nibley, 5 T. R., 21—208 
 
 V. Otley, 1 B. & Ad., 161—456, 459 
 
 V. Pease, 1 N. & M., 690; 4 B. & Ad., 
 
 30—148 
 
 V. Pershore, 8 B. & C. , 679—208 
 
 V. Petrie, 24 L. J. (N. S.) Q. B., 
 
 167—91 
 V. Pywell, 1 Stark. N. P. C, 402— 
 
 598, 599 
 V. St. Mary, Bury St. Edmunds, 4 B. 
 
 & Aid., 462—401 
 
 V. Stock, 1 Ry. & Moo., 87—224 
 
 V. Stone, 1 East, 639—374 
 
 V. Tolpuddle, 4 T. R., 671 -267 
 
 V. Tratford, 9 L. J. M.C., 66 ; 1 B. 
 
 & Ad., 874—171 
 
 V. Turner, 5 M. & S., 206—374 
 
 V. Turvey, 2 B. & Al., 520—208 
 
 V. Warminster, 6 B. & C, 77 ; 9 D. 
 
 & R., 70—208 
 
 V. Whitnash, 7 B. & C, 596—199 
 
 V. Woodward, 2 East P. C, 653—587 
 
 V. Vanderwall, 2 Burr., 991—443 
 
 Rice V. Baxendale, 30 L. J. (N. S.) Ex., 
 
 370—533 
 Richards v. Black, 6 C. B., 437 ; 7 D. & 
 
 L., 325—316
 
 Ivi 
 
 INDEX OF CASES CITED. 
 
 Richards r. F17, 3 N. & T., 67— ISO 
 
 V. Porter, 6 B. & C, 437 — .")05 
 
 r. llicliards, 29 L. J. (N. S.) Ch., 
 
 836—469 
 Richardson v. Brown, 1 Bing., 344 ; 8 
 Moore, 338 — 554 
 
 V. Gifford, 1 Ad. & E., 52— 
 
 417 
 
 I'. N. E. Ry. Co., 7 L. R. C. 
 
 r., 75—254 
 Rich V. Woolly, 7 Bing., 651— 26S, 284 
 Ricketts i'. Birmingham Junction Railway 
 Company, 12 C. B., 160—146, 150 
 
 r. Salwey, 2 B. & Aid., 360— 
 
 352 
 Bider V. Smith, 3 T. R., 766-133 
 Ridge {ex parfe) 1 Yes. & Beam., 360 — 
 
 524 
 Ridgway v. Stafford (Lord), 6 Ex., 404— 
 298, 301 
 
 V. Wharton,3DeG.,M. &G.,677, 
 
 693—420, 474, 476, 505 
 Rigg V. Lonsdale (Earl) 1 H. & N. , 923 ; 
 
 11 Ex., 654—386 
 Riley V. Bazendale, 30 L. J. Ex., 87—215 
 
 V. Warden, 2 Ex., 59—207 
 
 Rimel V. Sampayo, 1 C. & P., 254-222 
 Riseley v. Ryle, 11 M. & W., 16—295 
 Rivis V. Watson, 5 M. ."fe W., 255—280 
 Roads r. Trumpington, 5 L. R. Q. B., 56 
 
 —120 
 Roberts r. Barker, 1 C. & 1\[., 808—324 
 
 r. Great Western Railway Company, 
 
 27 L. J. (X. S.) C. P., 266—152 
 
 V. Smith, 2 H. & N., 213—219 
 
 V. Tunstall, 4 Hare, 257, 14 L. J. 
 
 Ch., 184—112 
 Robertson v. Gauntlett, 16 M. & W., 289 
 —352 
 
 (appl.) V. Burkett (resp.). 
 
 Weekly Reporter, Nov. 27, 1858—214 
 Robinson r. Hindman, 3^4 Esp., 234 — 
 ■ 203 
 
 V. Purday, 16 M. & W., 11—404 
 
 V. Rutter, 4 E. & B., 954—591 
 
 V. Vaughton, 8 C. & P., 252—366 
 
 Roden V. Eyton, 6 C. B., 427—299, 332 
 Rodgers v. Parker, IS C. B., 112-296 
 Kodmel v. Eden (Bart), 1 F. & F. 542— 
 
 467 
 Rodwell V. Phillips, 9 M. k W., 501—51, 
 
 54 
 Rolfe V. Patcrson, 2 Bro., P. C, 436—312 
 Rolls V. Rock, 2 Selw. N. P., 1287-109 
 Rondeau v. Wyatt, 2 H. Bl., 63—505 
 
 Rooth V. North Eastern Railway Company, 
 
 2 L. R. Ex., 173-252 
 
 V. Wilson, 1 B. & AL, 59—138 
 
 Roots V. Dormer (Lord), 4 B. & Ad., 77 — 
 
 478 
 Ross V. Smith, 1 B. & Ad., 907—398 
 Routledge v. Hislop, 29 L. J. (N. S.) M. C, 
 
 90—205 
 Rowbotham v. Wilson, 27 L. J. (N. S.) 
 
 Q. B.— 80, 81 
 Rowo V. Young, 2 B. & B., 195, 234—426 
 Rowlston V. Hardy — 386 
 Rudd V. Scott, 2 Scott, N. R., 631—364 
 Eudge V. Wiunell, 12 Beav., 357—443 
 Rusby V. Scarlett, 5 Esp., 76-222 
 Ryanr. Shilcock, 7 Ex., 72-284 
 
 S. 
 
 Sainsburyr. Matthews, 4 M. & W., 343— 
 
 51, 53 
 Saffery v. Elgood, 3 N. & M., 346—275 
 Salisbmy (Marquis of) v. Gladstone— 99 
 Salkeld (Clerk) v. Johnson, 2 C. B., 749— 
 
 398 
 Salter v. Woollams, 2 M. & G., 650—513 
 Salmon v. Ward, 2 C. & P., 211—542 
 Sampson v. Hodinott, 1 C. B. (N. S.), 590 
 
 —187, 194 
 Sanders v. Jameson, 2 C. & K., 557 — 485 
 Sandys v. Mayor, kc, of Beverley, 12 M. 
 
 & W., 568-404 
 Sarch v. Blackburn, 4 C. & P., 297—163 
 Sari V. Bourdillon, 1 C. B. (N. S.), 188— 
 
 507 
 Saunders v. Baldy, 1 N. R. Q. B., 87— 
 375 
 
 V. Kirwan, 30 L. J. (N. S.) C. P., 
 
 351—354 
 
 V. Newman, 1 B. & Al., 258- 
 
 172, 174 
 
 -y. Topp, 4 Ex., 390—583 
 
 Saunderson v. Griffiths, 8 D. & R., 643 ; 
 5B. &C., 909—306 
 
 r. Hanson, 3 C. & P., 314— 
 
 440 
 
 V. Jackson, 2 Bos. & P., 238 - 
 
 506 
 Savage v. Connor, 7 Tr. Jiir., 161 — 309 
 Scales V. Pickering, 6 L. J. C. P., 53—351 
 Scarfe v. Morgan, 4 M. & W., 268—563, 
 
 590 
 Schneider v. Norris, 2 M. & S., 288-506 
 Schwinge v. Dowell — 106
 
 INDEX OF CASES CITED. 
 
 Ivii 
 
 Scorell V. Boxall, 1 Y. & J., 396—56 
 Scott ('. Hanson, 1 Riiss. & My. ,128—479 
 
 V. Henderson — 569 
 
 Seago V. Dcane, 4 Bing., 459 ; 1 M. & P., 
 
 227; 3 C. & P., 170—64 
 Seaman v. Price, 2 Bing., 437—66 
 Searle v. Lindsay, 31 L. J. (N. S.) C. P., 
 
 106—217 
 Sears v. Lyons, 2 Stark., 317—361 
 Sellen v. Norman, 4 G. P., 80—199 
 Selsea (Lord) r. Powell, 6 Taun., 297 ; 
 
 3Eag. & Yc, 714—397, 398 
 Senior v. Armitage, Holt, 197 — 320 
 Sewell V. Corp, 1 G. & P., 392—579 
 Shadwellv. Shadwell, 28 L. J. (N. S.) G. P., 
 
 275—332 
 Sharp V. Waterliouse and Calvert, 27 L. J. 
 
 (N. 3.) Q. B., 70—75 
 Sharpe v. Gummings, 14 L. J. (N. S. ) 
 
 Q. B., 10-452 
 Sharrod v. London and North Western 
 Railway Company, 4 Ex., 580—144, 
 145, 146, 220 
 Sharman v. Sanders, 13 C. B., 166-207 
 Shaw V. Robberds, 6 Ad. & E., 75—517 
 
 V. York and North Midland Railway 
 
 Company, 13 Q. B., 347—234, 239 
 Sheen v. Reekie, 5 M. & W., 175-458 
 Shelton v. Livius, 2 C. & J., 411—479 
 Shepherd v. Marquis of Londonderry, 21 
 
 L. J. (N. S.) Q. B., 304—399 
 Sheriffs. James, 1 Bing., 341—272, 279 
 Sherwin v. Swindall, 12 M. & W., 783— 
 
 353 
 Shiels V. Great Northern Railway Company, 
 
 30 L. J. (N. S.)Q. B., 331—251 
 Shillitoe V. Glaridge, 2 Chitt., 425—568 
 Shrewsbury (Earl) v. Gould, 2 B. & AL, 
 
 487—314 
 Shury v. Pigott, Palm., 444 ; Popham, 166 
 
 —76, 87, 174, 1S6 
 Sibbering v. Earl Balcarras, 3 De G. k Sm., 
 
 735, and 19 L. J. Gh., 252-112 
 Sidwell V. Mason, 2 H. & N. , 306 - 508 
 Sieveking v. Dutton, 3 C. B., 331 ; 4 D. 
 
 &L., 197—484 
 Silvester v. Bedford, 27 L. J. (N. S.) C. P., 
 
 105—396 
 Simons v. Great Western Railway Company, 
 18 G. B., 805 ; 2 C. B. (N. S.), 620— 
 24.3, 248, 258 
 Siramonds v. Carr, 1 Camp., 3G1 — 563 
 Simmons v. Swift, 5 B. & C., 8.'>7 — 194 
 
 V. Hescltine, Jurist, March 26, 
 
 1859-478 
 
 Simmons v. Norton, 7 Bing., 640 ; 5 M. 
 
 &P., 64.5—127, 308, 309 
 Simpson v. Dendy, 8 C. B., 433—104 
 
 ;). Lamb— 538 
 
 ■ V. Lewthwaite, 3 R. & Ad., 226 
 
 — 3.V2 
 
 V. Savage, 1 C. B. (N. S.), 347— 
 
 95 
 
 V. Unwin, 3 B. & Ad., 134-374 
 
 Singleton v. AYilliaiiison, 31 L. J. (N. S.) 
 
 Ex., 287—271 
 Skeate v. Beale, 11 Ad. & E., 933 ; 3 P. 
 
 &D., 597—274 
 SkeiTy jj. Preston, 2 Chit., 245—277 
 Skipwith V. Green, Stra., 610—482 
 Skrine v. Elmore, 2 Gamp., 407 — 558 
 Skull V. Glenister, 33 L. J. C. P., 185— 
 
 104 
 Skyringr. Greenwood, 4 B. & C, 281 — 
 
 278 
 Slim v. The Gi'eat Northern Railway 
 
 Company, 14 C. B., 647—257 
 Slocombe v. Lyall, 6 Ex., 119— .''>52 
 Sloper V. Saimders, 29 L. J. (N. S.) Ex., 275 
 
 —567 
 Smallmanv. Pollard, 1 D. & L., 901 ; 6 
 
 M. & G., 1001—295 
 Smart v. Allison, 21 Veterinarian, 24 — 569 
 
 V. Harding, 15 C. B., 652—64 
 
 V. Hyde, 8 M. & W., 723—551 
 
 — V. Morton, 4 E. & B., 47—81 
 
 Snieed v. Foord, Law Times, February 12, 
 1859-510 
 
 V. Poor— 533 
 
 Smith V. Ackroyd, 10 C. B., 164—87 
 
 V. Chance, 2 B. & AL, 753-339 
 
 V. Dearlove, 6 C. B., 132—590 
 
 V. Eldridge, 2 G. & R., 855—446 
 
 r. Fletcher, 7 L. R. Ex., 305—156 
 
 V. Goodwin, 2 L. J. (N. S.) K. B., 
 
 192—272 
 
 V. G. E. Ry. Co., L. R. G. P., 4—156 
 
 V. Hayward, 7 Ad. & E., 544—206 
 
 V. Howard, 3 M. & G., 254—411 
 
 V. Hudson — 520 
 
 V. Hughes— 500 
 
 • V. Humble, 3 C. L. R., 225—438 
 
 V. Jeffreys, 15 M. & W., 561—480 
 
 V. Kenrick, 7 C B., 515-180 
 
 V. Kingsford, 3 Scott, 279—206 
 
 V. Man-able, 11 M. & W., 5-425 
 
 V. Miller, 1 T. R., 475—343 
 
 V. Neale, 2 C. B. (N. S.), 67—495 
 
 r. Pansons, 8 C. & P., 199-461 
 
 V. Peat, 2 C. L. R., 424-428
 
 Iviii 
 
 INDEX OF CASES CITED. 
 
 Smith !•. Telah, 2 Strange, 126^—158 
 V. Render, 27 L. J. (N. S.) Ex., 83 
 
 —459 
 I'. Surman, 4 M. & R., 455 ; 9 B. 
 
 & 0., 561—54, 55, 56, 128, 496 
 
 V. Thorne, IS Q. B., 134-508 
 
 V. Wilson, 3 B. & Ad., 728—482 
 
 r. AVriglit, 30 L. J. (N. S.) Ex. 313 
 
 —282 
 Sniout V. Ibury— 468 
 
 Sneesby v. Lan. and Yorksli. Ry. Co. — 140 
 Snelling r. Huntingfield (Lord), 1 C. M. & 
 
 R., 30—205 
 Somerset (Duke of) v. Fogwell, 5 B. & C, 
 
 875-387 
 Souch r. Straw-bridge, 2 0. B., 808—66 
 Soulsby V. Neving, 9 East, 360 — 470 
 Souter I'. Drake, 5 B. & Ad., 992—411 
 Southcote V. Stanley, 25 L. J. (N. S.) Ex., 
 
 339—356 
 Spain V. Arnott, 2 Stark., 256—202, 203 
 Spartali v. Benecke, 10 C. B., 212—481 
 Speck V. Phillips, 5 M. & W., 279 ; 7 
 
 Doug., 470—203 
 Spencer v. Parry, 4 L. J. (N. S.) K. B., 
 
 186-439 
 Spicert-. Barnard, 29 L. J. (N. S.) M. C, 
 
 176—380, 381 
 
 V. Cooper, 1 C. &D., 52-481, 507 
 
 Spieresr. Parker, IT. R., 144—374 
 
 St. Albans (Duke of) v. Ski^iwith, 8 Beav., 
 
 354—310 
 Stacey v. Whitehurst, 34 L. J. (N. S.) M. 
 
 C, 94-376 
 Stafford (JIarquis) v. Coyney, 7 B. & C, 
 
 257—197 
 V. Gardner, 7 L. R. G. P., 242— 
 
 327—3.31 
 (Mayor of) v. Till, 4 Bing., 75 — 
 
 445 
 Stamford (Earl of) v. Dunbar, 14 M. &W., 
 
 151 ; 12 M. & W., 414 — 403 
 Stammers v. Dixon, 7 East, 200-347 
 Standen v. Chri.stmas, 10 Q. B., 135—42.5, 
 
 447, 464, 468 
 Staniforth v. Fox. 7 Bing., 590—411 
 Stanleys. White, 14 Ea.st, 332—357 
 Stannion v. Davis, Salk., 404—602 
 Startup V. Cortazzi, 2 C. M. & R., 165 — 
 
 493 
 Staveley v. Allcock, 10 Q. B., 636—289 
 Steel V. Houghton, 1 11. Bl., 51 — 344 
 Steele v. Mart, 4 B. & C, 272—482 
 Stevens v. Boswell, 28 Veterinarian, 666 — 
 
 605 
 
 Stevens v. Legh, 2 C. L R., 251 — 557 
 Steward v. Coesvelt, 10. & P., 23—553 
 Stile V. Abbot of Tewkesbury— 386 
 Stockport Waterworks v. Potter, 31 L. J. 
 
 (N. S.)Ex., 9-363 
 Stokoe V. Singer, 26 L. J, (N. S.) Q. B., 
 
 257—77 
 Stott V. Olegg— 107 
 
 V. Stott, 16 East, 343—352 
 
 Stradbroke (Lord) v. Mulcahy, 2 Jr. Rep. 
 
 (N. S.), 406—442 
 Stratton v. Pettit, 16 0. B., 420 — 413 
 Street v. Blay, 2 B. & Ad., 456—484, 495, 
 
 596 
 Strickland v. Maxwell, 2 0. & M., 539 ; 
 
 4 Tyr., 346—322 
 Stroud (In re), 19 L. J. (N. S.) 0. P., 117 
 
 —412 
 Strutt V. Robinson, 3 B. & Ad., 395—416 
 Stuart V. Orawley, 2 Stark., 323—264 
 
 V. Wilkins, Doug., 19-542 
 
 Studdy V. Saunders, 8 D. & R., 403 ; 5 B. 
 
 k 0., 628—481 
 Summersett v. Jervis, 3 B. & B., 2—524 
 Sutton V. Moody, 2 Salk., 556; 1 Ld. 
 
 Raym., 250—367, 379 
 
 V. Temple, 12 M. & W., 52-424 
 
 Swaisland v. Dearsley, 30 L. J. (N. S.) 
 
 Oh., 653-541 
 Swabman v. Ambler, 24 L. J. (N. S.) Ex., 
 
 185—441 
 Swinfen i;. Bacon, 30 L. J. (N. S.) Ex., 
 
 109—470 
 Sybray v. White, 1 M. & W., 435—138 
 Sylvester u. Scattergood, 15 Q. B., 506 — 
 
 600 
 Symons v. Marine Society — 67 
 
 T. 
 
 Talbot (Earl) v. Hope Scott, 27 L. J. (N. 
 
 S.) Oh., 273—115 
 Talver v. West, Holt N. 0. P., 179-485 
 Tanslcy v. Turner,. 2 Scott, 231 ; 2 Bing. 
 
 N. C, 151 ; 1 Hodges, 267—130 
 Tappley?;. Sheather, W. R., Nov. 15, 1862 
 
 —466 
 Tarling v. Baxter, 9 D. & R., 272; 6 B. & 
 
 0., 300—494 
 Tarrant v. Webb, 18 C. B., 797—214 
 Tasker v. Bullnian, 3 Ex., 351 — 396 
 Tassell v. Cooper, 9 C. B., 509—210 
 Tatham V. Hodgson, 6 T. R., 656—231 
 Taunton v. Costar, 7 T. R., 431—322, 345
 
 INDEX OF CASES CITED. 
 
 lix 
 
 Tawney v. Crowther, 3 Bro. C. C, 161 — 
 
 420 
 Taylerson v. Peters, 2 N. & P., 622 ; 7 
 
 Ad. & E., 110 ; W., W. & D., 644— 
 
 290 
 Taylor v. Caldwell — 475 
 V. Carr & Porter, 31 L. J. (N. S.) 
 
 M. C, 111—206 
 V. Crowland Gas Co., 11 Ex., 1 & 
 
 24 L. J. (N. S.) Ex., 233—261 
 V. Henniker, 12 Ad. & E., 488— 
 
 284 
 V. Waters, 7 Tann., 374—71, 74, 
 
 302 
 
 V. Whitehead, 2 Doug., 475—94 
 
 V. Zamira, 6 Taun., 523 — 395 
 
 Teal V. Auty, 4 Moore, 542 ; 2 B. & B., 
 
 99—56 
 Tempest v. Fitzgerald, 3 B. & Aid., 680— 
 
 495, 579, 582 
 Templeman (app.) v. Haydon (resp.), 12 
 
 C. B., 507—220 
 Tenant 1). Goldwin, 6 Mod., 314— 133, 147 
 Tennant v. Field, 27 Law J. (N. S.) Q. 
 
 B., 33-283 
 Tew V. Jones, 13 M. & W., 12—449 
 Tewkesbui7 (Bailiffs of) v. Bucknall, 2 
 
 Taun., 120—523 
 Thomas v. Bering, 1 Keeb., 729—421 
 V. Evans, 27 L. J. (N. S.) M. C, 
 
 172—364 
 
 — V. Fredericks, 10 Q. B., 775—387 
 
 V. Harris, 9 Law J. (N. S.) C. B., 
 
 308—271, 283, 284 
 V. Morgan, 2 C. M. & R., 496— 
 
 166 
 
 V. Packer, 1 H. & N., 669—451 
 
 V. Phillips, 7C. & P., 673—343 
 
 ■ V. Thomas, 2 C. M. & R., 34—88 
 
 V. Williams, 10 B. & C, 664—276 
 
 Thompson v. Gibson, 7 M. & W., 456 ; 8 
 
 M. & W., 281 ; 9 Dow. P. C, 717 — 
 
 354, 355, 493 
 
 V. Patteson, Olliphant, 85—569 
 
 Thornett v. Haines, 15 M. & W., 367— 
 
 550 
 Thorpe v. Eyre, 1 Ad. & El., 926—323 
 
 V. Plowden, 2 Ex., 387—404 
 
 Thrupp V. Collett, Jurist, Feb. 12, 1859 — 
 
 209, 389 
 Tickle V. Brown, 4 Ad. & E., 369—82, 
 
 83 
 Tildesley v. Clarkson, 31 L. J. (N. S.) Ch., 
 
 362—464 
 Tincklcr v. Prentice, 4 Taun., 549—284 
 
 Tindall v. Powell, Weekly Reporter, August 
 
 28, 1858—211 
 Tomkinson v. Staight, 25 Law J. (N. S.) 
 
 C. P., 85—505 
 Tomlinson (clerk) v. Burghey, 1 C. B., 6C3 
 
 —401 
 
 V. Day, 2 B. & B., 680—388 
 
 Tooker v. Smith, 1 H. & N. , 732—436 
 Toss [Foss] V. Racine, 7 Dow., 53—439 
 Towne v. D'Eynrick, 1 C. L. R., 335— 
 
 446 
 Townend v. Woodruff, 5 Ex., 506—518 
 Townsend v. Wathen, 9 East, 277—389 
 Toulmin-y. Hedley, 2 C. & K., 157—486 
 Toymbee v. Brown, 3 Ex., 117—403 
 Trent v. Hunt, 29 L. J. (N. S.) Ex, 318— 
 
 470 
 Tress v. Savage, 4 E. & B., 36—412, 436 
 Trimmer v. Walsh, 32 L. J. (N. S.) Q. B., 
 
 20—406 
 Truman v. Loder, 11 Ad. k E., 593—210 
 Truscott V. Merchant Taylors Company, 11 
 
 Ex., 863 ; 21 L. J. (N. S.) Ex. 173— 
 
 96 
 Tucker v. Newman, 11 Ad, & E., 40— 
 
 107 
 Tuff V. Warman, 27 L, J. (N. S.) C. P., 322 
 
 —221 
 Turberville v. Stampe, 1 Ld. Raym., 264 ; 
 
 1 Salk., 13—212, 214, 360 
 Turner v. Barnes, 31 L. J. (N. S.) Q.B., 
 
 170—283 
 V. Hutchinson, 2 F. & F., 185— 
 
 467 
 
 V. Morgan- — 392 
 
 V. Robinson, 6 C. & P., 15 ; 5 B. & 
 
 Ad., 789—200, 202 
 
 V. Spooner, 30 L. J. Ch., 801—97 
 
 V. Wright, 29 L. J. (N. S.)Ex, Ch. 
 
 470, 598 ; 2 Law Rep. 271, 640— 
 
 113 
 Tuton V. Senoria [Sanoner], 27 L. J. (N. S.) 
 
 Ex., 293—515 
 Tutton V. Darke, 29 L. J. (N. S.)Ex., 271 
 
 —282 
 Tyler v. Bennett, 5 Ad. & E., 377; 6 Nev. 
 
 & M. 826 ; 2 Har. & W., 272—66 
 V. Wilkinson, 4 Mason, U. S. R., 397 
 
 —174 
 Tyson v. Thomas, McClel. & T., 119 — 
 
 522
 
 k 
 
 TXDEX OF CASES CITED. 
 
 Upton r. Greenlecs, 25 Law J. (N. S.)C. P., 
 
 44—437 
 V. Townend, 2". Law J. (X. S.) C. P., 
 
 44—437 
 
 A'aspor r. Edwards, Holt, 257 ; 12 Mod. 
 
 C60 ; 1 Salk., 24S ; 8 C. B., 812 ; 19 
 
 Law J. (N. S.) C. P., 12—267 
 Yaugliau v. Menlovc, 3 Bing. N. C, 468 ; 
 
 4 Scott, 244—360 
 V. Taff Yale Railway Company, 
 
 28 L. J. (N. S.) Ex., 41-360 
 Venning v. Leekie, 13 East, 7; 7 C. & P., 
 
 525—452, 459 
 Vere r. Cawdor (Lord), 11 East, 568— 
 
 363 
 Vertuc V. Bcasley, 1 JIoo. & Eob., 21 — 
 
 279 
 Veysey v. Hoskins, 34 L. J. (X. S.) M. C, 
 
 145—376 
 Yidler, ex parte re Terry, AY. R., Dec. 13, 
 
 1862—539 
 Yiney v. Chaplin, 27 L. J. (N. S.) Ch., 434 
 
 —475 
 Vivian v. Champion, 2 Ld. Rayni., 1125 — 
 
 429 
 Vowles r. Miller, 3Taun., 137—132 
 Yoyce v. Yoyce, Gow., 201 — 135 
 Vose Administi-atrix t\ Lancashii-e and 
 
 Yorkshire Railway Company, 214 
 
 W. 
 
 Waddington r. Bristowe, 2 B. & P., 452— 
 
 50, .51, 53 
 Wade V. Marsh, Lutw., 211—289 
 Wadhurst v. Damme, Cro. Jac, 45 — 368 
 Waldo r. AYaldo, 7 Sim., 261—127 
 Walker v. Bentley, 9 Hare, 629—395, 398 
 
 V. Giles— 282 
 
 V. The York and North Midland 
 
 Railway Company, 2 E. & B., 750 — 
 
 2.56 
 Wallace v. Maclaren, 1 M & R., 516—289, 
 
 4.52 
 Waller v. Lacy — 509 
 Wallisw. Harrison, 4 M. & W., 538; 11 
 
 L. J. (N. S.)Ex., 440—72, 90 
 
 Wallisr. Littell, 31 L. J. (N. S.)C. P., 100 
 
 —465 
 Walmsley v. Milne, 29 L. J. (N. S.) C. P., 
 
 97—469 
 Wansborough v. Maton, 4 Ad. & Ell., 884 
 
 — 455, 458 
 Wanstead Board of Health v. Hill, N. R., 
 
 Jan. 23, 1863—363 
 Warburton v. Parke, 2 H. & N., 64—84 
 Ward V. Andrews, 2 Chit., 636—115 
 
 V. Robins, 15 M. & W., 237—180, 
 
 192 
 
 ■ V. Ward, 7 Ex., 838—86 
 
 Wardle v. Brocklehurst, 29 L. J. (N. S.) 
 
 Q. B., 145—198 
 Warden r. Usher, 3 Scott N. R., 508 — 
 
 122 
 Warlow V. Harrison, 28 L. J. (N. S.) Q. B., 
 
 18—591 
 Warner v. Wellington [WilHngton], 3 Drew, 
 
 523—495 
 Warren I'. Rudall, 29 L. J. (N. S.) Ch., 
 
 543—112 
 Warton v. Flowers, 26 Veterinarian, 143— 
 
 572 
 Wamick v. Bruce, 2 M. & S., 205—52, 
 53 
 
 V. Collins, 5 M. & S., 166; 2 M. 
 
 &S., 349—398 
 Washbourne v. Burrows, 1 Ex., 107—55, 
 
 60 
 Waterford (Marquis of) app. v. Knight 
 
 resp., 11 CI. &Fin., 653—403 
 Waterman v. Soper, 1 Ld. Raym., 737 — 
 
 116, 117 
 Waters v. Weigall, 2 Anst., 575—430 
 Watherell v. Ho wells, 1 Camp., 227— 
 
 308 
 Watkins v. Major, 10 L. R. C. P., 662— 
 377 
 
 r. Reddin, 2 F. & F. 629—361 
 
 .Watson V. Denton, 7 C. &P., 8()— 593 
 
 V. Lane, 25 L. J. (N. S.) Ex., 102 
 
 -357 
 V. Sprattley, 2 C. L. R., 1434— 
 
 Watts V. Ainsworth, 31 L. J. (N. S.) Ex., 
 
 448—537 
 V. Friend, 10 B. & C, 446—507, 
 
 521 
 Weale v. West Middlesex Waterworks, 1 
 
 Jac. & Walker, 372—518 
 Weaver v. Lloyd [Floyd], 21 L. J. (N. S.) 
 
 Q. B., 151—207 
 Webb V. Bcavan, 6 M. k •'., 1055-347
 
 INDEX OF CASES CITED. 
 
 Ixi 
 
 Webb V. Bml, 31 L. J. C. P. 335, Ex. Cli. 
 — 9C 
 
 V. Paternoster, Palm., 71 — 71, 72, 74 
 
 V. Plummer, 2 J3. & Al., 7-16-323, 
 
 324, 325 
 Weeding v. Mason, 2 C. B. (N. S.), 382— 
 
 333 
 Weddall V. Capes, 1 M. & W., 50 — 434 
 Weekly V. Wiklman, 1 Ld. Raym., 407 — 78 
 Wceton v. Woodcock, 7 M. & W., 14-460 
 Wellington (Duke of) Settled Estates Act 
 
 —198 
 Wells I'. Head, 4 G. & P., 568 -162 
 Westr. Hedges, Barnes, 211- 295 
 
 V. Moore, 8 East, 339—443 
 
 V. Nibbs, 4 C. B., 172—279 
 
 Western v. Russell, 3 V. & B., 187, 191— 
 
 421 
 Whaley V. Laing, 2 H. & N., 476—181 
 Wharton v. Naylor, 6 D. & L., 136 ; 12 
 
 Q. B., 673—294 
 Wheeler v. Overseers of Burmington, 408 
 Whistler v. Paslow, Cro. Jac. 487—109 
 Whitaker v. Barker, 1 C. & M., 113—316 
 White V. Hill, 6 Q. B., 487—144 
 
 V. James, 28 L. J. (N. S.) Ch., 179 
 
 —280 
 
 V. Lesson — 105 
 
 V. Nicholson, 4 M. & G., 95 ; 11 
 
 L. J. (N. S.)C. P., 264—462 
 
 V. Sayer, Palm., 211—443 
 
 V. Spettigue, 13 M. & W., 603— 
 
 697, 599 
 
 v. The Great Western Railway 
 
 Company, 2 C. B. (N. S.), 7—257 
 
 N. (In re) v. Wakeley, 28 L. J. 
 
 (N. S.) Ch., 77—431 
 Whitehead v. Bennett, 27 L.J. (N. S.) Ch., 
 474—363 
 
 V. Parks, 2 H. & N., 870—190 
 
 Whiteman Ex parte — 1 42 
 Whittington (Ex parte), 1 Buck, 87 — 322 
 Whitty V. Lord Dillon, 2 F. & F. 67—113 
 Wickham v. Hawker, 7 M. & W., 63—90, 
 384, 385 
 
 V. Lee, 12 Q. B., 521—450 
 
 V. Wickham, 19 Yes., 419—126 
 
 Wicks V. Macnamara, 27 L. J. (N. S.) Ex., 
 
 419 — 221 
 Wieler v. Schilizzi, 17 C B., G19— 425 
 Wigles worth v. Dallison, 1 Doug., 201 — 
 
 319, 324 
 Wilder. Waters, 16 C. B., 637—69 
 Wilder v. Speer, 8 A. & E., 547—270 
 Wilkins v. Wood -306 
 
 Willett V. Boote, 30 L. J. (N. S.) M. C, 
 
 6—206 
 Wilmot V. Rose, 3 E. & B., 562-298 
 
 V. Lees — 570 
 
 Wiley [Wilby] v. The West Cornwall Rail- 
 way Company, 27 L. J. (N. S.) Ex., 
 
 181—263 
 Williamson v. Allison, 2 East, 446—542 
 V. Barton, 31 L. J. (N. S.) 
 
 Ex., 176—541 
 Williams v. Adams — 103 
 V. Burgess, 10 Ad. & E., 499 ; 2 
 
 Per. & D., 422—561 
 — V. Clo.igh, 27 L. J. (N. S.), 325 
 
 — 219 
 
 V. Currie, 1 C. B., 841—127 
 
 V. Eyton, 28 L. J. Ex., 146—105 
 
 V. Llangeinwen, 31 L. J. (N. S.) 
 
 M. C, 54—407 
 V. Millington, 1 H. Bl., 81—348, 
 
 5S7 
 V. Moreland, 2 B. & C, 910 ; 4 
 
 D. &R, 583—172, 174 
 
 -; V. Morris, 8 M. & W., 488—72 
 
 V. Paul, 6 Bing., 653—562 
 
 V. Stiven, 15 L. J. (N. S.) Q. B., 
 
 321-288 
 
 V. Williams, 12 East, 209 ; 15 
 
 Ves. Jan., 425—110 
 Willoughby (app.) v. Horridge (resp.), 12 
 
 C. B., 742—232 
 V. Willoughljy, 4 Q. B., 687— 
 
 396 
 Wills v. Stradling, 3 Ves., 378—312 
 Wilson V. Brett, 11 M. & W., 113—574 
 
 V. Fuller, 3 Q. B., 68—420 
 
 r. Greenroyd, Jurist, May 1, 1858 
 
 —344 
 
 r. ]\Lackreth, 3 Burr., 1824-344 
 
 V. Newberry — 604 
 
 V. Stevens, M. S. S. — 547 
 
 Wiltshear v. Cotterell, 1 E. & B., 674— 
 
 456, 458 
 Winchester (Bishop of) v. Knight, 2 Ld. 
 
 Ilaym., 1056; 1 P. Williams, 406— 
 
 99, 307 
 Winter v. Brockwell, 8 East, 398—72, 73, 
 
 74 
 Winterbotham v. Ingham, 14 L. J. (N. S. ) 
 
 Q. B., 298—447 
 Winterbourne v. Morgan, 11 East, 395 — 
 
 279 
 Wintringham Tithes (re) ex pai-te. Lord 
 
 Carington, 31 L. J. (N. S.) C. P., 
 
 274—407
 
 Ixii 
 
 INDEX OF CASES CITED. 
 
 Wise V. The Great Western Railway Com- 
 pany, 1 H. &; N., 63— -244 
 
 V. Metcalfe, 10 B. & C, 299; 5 M. 
 
 itRy., 235 — 333 
 Wish V. Small, 1 Camp., 331 «.— 575 
 Witcher r. James Hall, 8 D. & 11., 22 ; 5 
 
 B. & C, 2G9— 483 
 Withei-s V. lleyuolds, 2 B. & Ad., 882 — 
 
 400 
 Wittam r. Ury, 2 Dowl., 543-309 
 Womei-sley v. Dally, 2(J L. J. (N. S.) Ex., 
 
 219—319 
 Wood V. Benson, 2 C. & J., 104—588 
 V. Clarke, 1 C. & J., 484—286 
 
 V. Hewett, S Q. B., 913—456, 469 
 
 V. Lake, Sayer, 3 — 71 
 
 r. Lcadbitter, 13 M. k W., 838—71, 
 
 72, 127 
 
 V. Marjoribanks, 30 L. J. (N. S.) Cli , 
 
 176-540 
 
 V. Manley, 3 P. & D., 5 ; 11 Ad. & 
 
 E., 34—302 
 
 V. Nunn, 5 Bing., 10—281 
 
 V. Smith, 4 C. & P., 45 ; 5 M. & 
 
 K., 124-543 
 
 V. Veal, 1 D. & R., 20 ; 5 B. & Al., 
 
 454—91 
 
 V. Waud, 3 Ex., 748—176, 182, 
 
 184, 188 
 
 Woodhouse v. Swift, 7 C. & P., 310—125 
 Wpodland v. Mantell — 444 
 Woodley v. Brown, 2 Bing., 527—521 
 Woodin V. Burford, 2 C. & M., 39—555 
 Woodward v. Gyles, 2 Vern., 119—312 
 Woolcock V. Dew, 1 F. & F., 337—427 
 Wooton V. Dawkins, 2 C. B. (N. S.), 312 
 
 —391 
 Worth V. Gilling, 2 L. R. C. P., 1—156 
 
 Worthington v. Warrington, 8 C. B., 134 
 
 —475 
 
 r. Grinson — 105 
 
 Wright V. Bird, 1 Price, 20—524 
 
 V. Colls, 8 C. B., 150—419 
 
 r. Dewes, 1 A. & E., 641 ; 3 N. 
 
 & M., 790—295, 296 
 V. Howard, 1 Sim. & Stu., 190— 
 
 173, 175, 176 
 V. L. & S. W. Railway Co., 10 L. 
 
 R. Q. B., 298—253 
 
 V. Rattray, 1 East, 377—88 
 
 V. Smith, 470 
 
 V. Stavcrt— 68 
 
 V. Williams, 1 M. & W., 77—84, 
 
 ISO, 181 
 Wrightup V. Chamberlain, 7 Scott, 598— 
 
 558 
 Wyndham v. Way, 4 Tauu., 316—121 
 
 Y. 
 
 Yates v. Dunster, 11 Ex., 15-430 
 
 V. Routledge, 29 L. J. (N. S.) Ex., 
 
 117—249, 469 
 
 V. Pym, 6 Taun., 445—480 
 
 Yolland v. Price— 286 
 
 York, Newcastle, and Berwick Railway 
 
 Company (app.) v. Crisp and Logan 
 
 (resps.), 14 C. B., 527-254 
 Yorke v. Greenhaugh, Lord Raym., 8C8 — 
 
 589 
 Young V. Davis, 23 L. J. (N. S.) M. C, 
 
 97—103 
 Young i;. Spencer, 10 B. &C., 145—348 
 Ystradinglais {In re) Commutation, 8 Q. 
 
 B., 32—400
 
 STATUTES CITED. 
 
 51 Hen. III., st. 4 
 
 52 Hen. III., c. 4 
 
 21 Hen. VIII., c. 11 
 25 Hen. VIII., c. 11 
 32 Hen. VIII., c. 34 
 
 2 &3Edw. VI., c. 13 
 
 3 & 4Edw. VI., c. 7 
 1 Eliz., c. 17 
 
 13 Eliz., c. 5 
 43 Eliz., c. 2 
 3 Jac. I., c. 12 
 
 22 Car. II., c. 6 
 
 c. 8 
 22 & 23 Car. II., c. 9 
 
 PAGE 
 
 286 
 297 
 600 
 385 
 425 
 397, 398, 403 
 385 
 364 
 444 
 119, 120 
 364 
 439 
 520 
 353 
 
 c. 25 368 
 
 23 Car. II., c. 24 439 
 
 29 Car. II., c. 3 50, 52, 56, 58, 59, 62, 
 
 63, 65, 66, 67, 68, 129, 
 
 277, 501, 504, 587 
 
 c. 7 199, 562, 563 
 
 c. 8 409 
 
 2 Will. & Mary, s. 1, c. 5 271, 282, 285, 
 
 291, 292, 293, 332 
 
 7 & 8 Will. III., c. 6 404 
 8&9\Vill. III., c. 11 353 
 9 & 10 Will. III., c. 36 85 
 
 I Anne, c. 7 85 
 
 4 Anne, c. 16 280, 452 
 
 5 Anne, c. 14 290, 368 
 
 8 Anne, c. 14 282, 288, 291, 294, 295, 
 
 296, 321 
 
 4 Geo. II., c. 21 470 
 
 4 Geo. II., c. 28 291, 304, 450, 470 
 
 c. 29 292 
 
 9 Geo. II., c. 36 395 
 
 II Geo. II., c. 10 446 
 
 c. 19 279, 280, 281, 283, 
 
 284, 291, 292, 293, 
 
 294, 295, 296, 397, 
 
 425, 445, 450, 5U 
 
 20 Geo. II., c. 19 201, 202, 206, 209 
 
 PAGE 
 
 31 Geo. II., c. 11 201 
 
 13 Geo. III., c. 78 143 
 
 23 Geo. III., c. 58 50 
 
 23 & 24 Geo. III., c. 39 121 
 
 36 Geo. III., c. 88 522, 523 
 
 38 Geo. III., c. 60 438, 439 
 
 c. 5 438, 439 
 
 39 Geo. III., c. 12 343 
 41 Geo. III., c 109 78, 132 
 46 Geo. III., c. 66 309 
 
 49 Geo. III., c. 121 322 
 
 50 Geo. III., c. 41 518 
 53 Geo. III., c. 71 518 
 
 55 Geo. III., c. 156 416 
 
 c. 184 54, 340, 416, 558,559 
 
 56 Geo. III., c. 50 292, 29'!, 298, 299 
 59 Geo. in., c. 95 340 
 1 Geo. IV., c. 56 363 
 
 c. 87 450, 520 
 
 3 Geo. IV., c. 126 1C7, 141, 340, 341 
 
 4 Geo. IV., c. 28 418, 449 
 
 c. 34 200, 201, 204, 205 
 c. 95 154 
 
 5 Geo. IV., c. 14 396 
 
 c. 28 404 
 
 c. 74 507, 521, 523 
 
 6 Geo. IV., c. 16 298 
 
 7 & 8 Geo. fv., c. 18 390 
 
 c. 29 136, 226, 227, 345, 
 
 373, 599, 600 
 
 c. 30 136, 137, 358, 
 
 363, 372 
 
 c. 31 430 
 
 9 Geo. IV., c. 14 505, 587 
 
 c. 69 369, 370, 373, 
 
 376, 382, 392 
 
 n Geo. IV. & 1 Will. IV., c. 68 242 
 
 1 & 2 Will. IV., c. 32 363, 368, 369,370, 
 
 371, 372, 373, 374, 
 
 375, 376, 377, 
 
 381, 386
 
 Ixiv 
 
 INDEX OF STATUTES CITED. 
 
 
 
 PAGE 
 
 
 
 
 PAGE 
 
 1 & 2 Will. 
 
 IV., c. 37 
 
 207, 2U8 
 
 8 & 9 Yict., c 
 
 106 
 
 412, 413, 
 
 414, 464 
 
 
 c. 42 
 
 343 
 
 c 
 
 118 
 
 
 9b, 346 
 
 
 e. 45 
 
 405, 409 
 
 9 & 10 Yict., 
 
 c. 73 
 
 
 398 
 
 2 & 3 Will. 
 
 IV., c. 71 81 
 
 82, 83, 84, 85, 
 
 
 c. 93 
 
 
 219, 350 
 
 
 
 86, 93, 95, 97, 
 
 
 c. 95 
 
 251 
 
 437, 449 
 
 
 
 107, 170, 180, 
 
 10 & 11 Yict. 
 
 c. 14 
 
 
 002 
 
 
 
 182, 181, 384 
 
 11 & 12 Yict. 
 
 c. 29 
 
 
 373 
 
 
 c. 100 
 
 398, 402,.403 
 
 
 c. 30 
 
 
 374 
 
 3 Will. IV. 
 
 c. 34 
 
 233 
 
 
 c. 43 
 
 
 201, 374 
 
 3 & 4 Will. 
 
 IV., c. 4 
 
 422 
 
 
 c. 63 
 
 
 363, 602 
 
 
 c. 27 
 
 345, 346, 395, 
 
 
 c. 99 
 
 
 105 
 
 
 
 479 
 
 12 & 13 Yict. 
 
 , c. 45 
 
 
 373 
 
 4 Will. lY. 
 
 ss. 4, 5, 6 
 
 94 
 
 
 c. 92 
 
 269 
 
 270, 603 
 
 5 & 6 Will. 
 
 IV., c. 18 
 
 340 
 
 
 c. 106 
 
 298 
 
 524, 525 
 
 
 c. 50 
 
 102, 103, 141, 
 
 142, 143, 144, 
 
 146, 214 
 
 13 & 14 Yict. 
 
 c. 61 
 c. 79 
 c. 94 
 
 
 344, 602 
 
 341 
 
 67, 395 
 
 
 c. 53 
 
 523 
 
 14 & 15 Yict. 
 
 c. 25 
 
 293, 394, 
 
 442, 462 
 
 
 c. 59 
 
 270 
 
 
 c. 38 
 
 
 341, 342 
 
 
 c. 63 
 
 522, 523 
 
 
 c. 91 
 
 
 528 
 
 
 c. 74 
 
 403, 404 
 
 
 c. 99 
 
 
 368 
 
 
 c. 75 
 
 398 
 
 16 & 17 Yict. 
 
 c. 62 
 
 
 598 
 
 6 Will. IV. 
 
 c. 13 
 
 105 
 
 17 & 18 Yict. 
 
 c. 31 
 
 242, 
 
 247, 248, 
 
 6&7Will.iv.,c. 71 280, 
 
 281, 296, 394, 
 
 
 
 249 
 
 250, 252 
 
 
 395, 
 
 396, 397, 399, 
 
 
 c. 36 
 
 
 515 
 
 
 400, 
 
 401, 403, 404, 
 406, 453 
 
 
 c. 60 
 c. 83 
 
 
 270 
 209, 416 
 
 7 Will. IV. 
 
 & 1 Vict., c. 69 394, 399 
 
 
 0. 124 
 
 
 431 
 
 1 Vict., c. 
 
 69 . 
 
 399, 400 
 
 18 & 19 Yict. 
 
 c. 120 
 
 
 406 
 
 1 & 2 Vict. 
 
 , c. 43 
 
 80, 99 
 
 
 c. 121 
 
 
 160, 425 
 
 
 c. 64 
 
 399 
 
 19 & 20 Yict. 
 
 c. 101 
 
 
 598 
 
 2 & 3 Yict. 
 
 , C.62 
 
 399, 400 
 
 
 c. 97 
 
 
 418 
 
 3 & 4 Vict. 
 
 c. 24 
 
 353, 354 
 
 
 c. 104 
 
 
 405 
 
 5 Vict., sess. 2, c. 27 
 
 272 
 
 • 
 
 c. 114 
 
 
 523 
 
 6 & 6 Yict. 
 
 c. 35 
 
 440 
 
 20 & 21 Yict. 
 
 , c. 43 
 
 
 382 
 
 
 c. 54 
 
 399 
 
 
 c. 157 
 
 
 567 
 
 
 c. 55 
 
 145, 147, 150 
 
 23 & 24 Yict. 
 
 c. 93 
 
 
 394 
 
 
 c. 97 
 
 281, 397 
 
 
 c. 126 
 
 
 354 
 
 
 c. 122 
 
 525 
 
 24 & 25 Yict. 
 
 c. 70 
 
 
 361 
 
 G & 7 Vict. 
 
 c. 30 
 
 270 
 
 
 c. 96 
 
 
 380 
 
 
 c. 37 
 
 395 
 
 
 c. 103 
 
 
 408 
 
 7 & 8 Vict. 
 
 , c. 29 
 
 373 
 
 25 & 26 Yict. 
 
 , c. 114 
 
 376, 
 
 392, 393 
 
 
 c. 76 
 
 412, 413 
 
 27 & 28 Yict. 
 
 , c. 101 
 
 
 144 
 
 8 & 9 Vict. 
 
 , c. 18 
 
 392, 475, 539 
 
 30 & 38 Yict. 
 
 , c. 141 
 
 
 204 
 
 
 c. 20 
 
 146, 148, 149, 
 
 32 & 33 Yict. 
 
 , c. 70 
 
 
 490 
 
 
 
 150, 153, 232 
 
 38 & 39 Vict. 
 
 , c. 92 
 
 
 43—49
 
 THE LAW OF THE FARM. 
 
 CHAPTER I. 
 
 AGRICULTUEAL CUSTOJIS. 
 
 If the Agricultural Holdings Act were universally adopted, the 
 term the " Custom of the Country," which has usually found its way 
 into agricultural leases, would cease to exist ; but as it seems certain 
 that for the present, at any rate, the Act above mentioned will not be 
 adopted even by the majority of farmers, it will still be necessary to 
 explain the law of Agricultural Customs. 
 
 The claim for remuneration which an outgoing agricultural tenant 
 has on his landlord for various operations of husbandry, the ordinary 
 return of which he is precluded from receiving by the termination of 
 his tenancy, is termed " Tenant-right," and is governed by the different 
 Customs which have long prevailed in the counties and districts of the 
 United Kingdom. These customs are frequently most conflicting and 
 difficult to define. In many counties they scarcely exist at all ; in 
 others it is rather the custom of districts, and in many the custom 
 merely of certain estates. They are imported into leases or agreements 
 for the letting and occupation of land, and unless the agreement 
 expressly, or by implication, excludes the custom of the country, the 
 landlord and tenant are presumed to contract with reference to it. 
 Tenant-right extends to the crop, which the outgoing tenant has sown 
 and leaves in the ground, and to remuneration for the preparation of 
 the soil for crops by tillage, for the straw, hay, and occasionally, dung 
 left on the farm, and for growing underwood. Of late years, tlie term 
 has happily been understood in a much wider and more liberal sense, 
 and in many parts of the country a usage has sprung up, which confers 
 a right on the outgoing tenant to be re-imbursed for certain other 
 expenses incurred by him in cultivation, beyond those of mere ordinary 
 husbandry. Among such expenses are the purchase of food for stock, 
 as well as of certain kinds of manure, and the draining, chalking and 
 
 B
 
 2 BEDFORDSHIRE. 
 
 marling of the soil. If there be no usage to that effect, and no express 
 stipulation, the outgoing tenant can claim no compensation for any of 
 these improvements, however short may be the time between their 
 completion and the termination of his occupancy. In practice, the 
 compensation agreed to be paid by the landlord to the outgoing tenant, 
 is paid by the incoming one. The cost of the several improvements is 
 found by valuers, who spread the amount over a certain number of years, 
 within which each kind of improvement respectively is supposed to repay 
 itself, and deduct the time during which the tenant has enjoyed the 
 benefit of it. It would simplify their calculations if the Michaelmas entry 
 was universal. The customs in England and "Wales are as follows : 
 
 Bedfordshire. — The original system in Bedfordshire was a Lady-day 
 hiring, the tenant being entitled to the awaygoing crop ; but in most 
 instances the practice is now changed into the regnlar IMichaelmas 
 hiring. The tenant-at-will receives notice by the 25th of March to 
 quit the next Michaelmas ; and is obliged, according to the custom, 
 generally speaking (though not invariably), to give up his fallows, and 
 a portion of the farmhouse, and a stable for the horses, to the incoming 
 tenant ; and the incoming tenant is allowed to come in and sow the 
 seeds himself. The Norfolk system generally prevails, of allowing the 
 outgoing tenant to cultivate the fcxllows in the usual way, carrying the 
 manure out and sowing the turnips, cutting the hay, and stacking it on 
 the fixrm. He has to be paid by valuation for the hay and turnips, but 
 he receives nothing for manure, except the cartage, however expensively 
 it may have been made. No exception is made even in the case of 
 oilcake manure. There is no custom that enables the tenant to claim 
 compensation for artificial dressings or drainage, or anything of that 
 kind. In the Duke of Bedford's leases it is stipulated that the tenant 
 should pay six per cent, on the cost of "hollow draining with drain- 
 pipe tiles. Bet upon soles or flat tiles ; " the tenant paying for the 
 carriage of the same. On his Grace's estates, all the dung manure and 
 compost produced and made during the last year of the tenancy, and 
 all unexpended manure whatsoever is left for the incoming tenant 
 without compensation, and the unconsumed straw, hay, green crops, 
 stubble, haulm, stover, chaff, and cavings is paid for at a spending 
 price. The incoming tenant is allowed to enter in the November of the 
 last year of the term, and as often afterwards as he requires, to prepare a 
 certain portion of the arable land for a fallow ; and to enter at seed-time 
 on all the land which shall be sown for a crop of l)arley or other spring 
 com, and sow clover or any other grass seeds, to be harrowed in with the 
 grain. He may also enter upon the stubble land, which may have pro-
 
 BERKSHIllE AND BUCKS. CAMBRIDGESHIRE. 3 
 
 duced white straw grain, or pulse, as soon as it is carried off the land at 
 harvest, and prepare and sow it with rye, tares, or any other seeds, or plant 
 it with cabbages or other plants for the spring feeding of cattle or sheep. 
 
 Berkshire and Bucks. — The customs are nearly identical in these two 
 counties. Michaelmas is always the time of entry, and there is no 
 other time of quitting. The incoming tenant pays for all acts of hus- 
 bandry. It is the custom not to allow more than two white straw 
 crops to be taken in succession. Many tenants are allowed to sell wheat 
 straw, but the general principle is that the incoming tenant takes to it 
 at a valuation. The hay is taken to sometimes at a consuming price, 
 sometimes at a market price ; in fact there is no standing custom at all 
 respecting it. The manure of the last two years is usually considered 
 the incoming tenant's property, provided the outgoing tenant had it 
 when he entered. There is no compensation for the purchase of arti- 
 ficial food or manure, nor for drainage or chalking, or, in fact, for any 
 durable improvements of the land, except under special agreements. It 
 is often stipulated that a certain number of sheep shall be kept on the 
 farm during the last year by the outgoing tenant, to September 29th, 
 and folded on those points of the farm the incoming tenant may select. 
 After the farm buildings have been put in repair, the general rule is 
 that the tenant is to keep them so, the landlord finding rough materials 
 and the tenant workmanship. 
 
 Camlrklfjeshire. — There are so many varieties of land in this county 
 that it is difficult to define accurately what custom obtains. In the 
 fens no regular system of cropping prevails, as the variety of seasons 
 sets all regular rotation at defiance ; in many instances wheat and 
 bran have been grown alternately for years, while on others, potatoes, 
 rape and mangel-wurzel are alternated with wheat and oats. On the 
 high land the old Norfolk four-course system is usually adoiDted, viz., 
 wheat, roots, barley, seeds, but in some districts the use of artificial 
 manures has permitted and rendered profitable the introduction of the 
 five-course system, in which case barley is grown after wheat. Where 
 long leases are granted, tenants are usually allowed to crop without 
 restriction, provided the condition of the land is maintained, except 
 during the last four years of their tenancy, wherein the four-course 
 system is to be strictly adhered to. It is customary for the outgoing 
 tenant to prepare the fallows and sow the small seeds, and to be paid 
 for these by the incoming tenant. Hay is paid for at a consuming 
 price, and the incoming tenant takes the last year's straw and chaff, but 
 pays for the thrashing, dressing, and delivery, within a reasonable distance. 
 
 B 2
 
 4 CHESHIRE, CORNWALL, CUMBERLAND, AND WESTMORELAND. 
 
 In most cases an allowauce is made to the outgoing tenant for oil cake 
 and purchased corn, which has been consumed during the last two years 
 of his occupation. The entries arc ahnost invariably at Michaelmas. 
 
 Cheshire. — See Lancash ire. 
 
 Conucall. — Michaelmas is the most general time of entry, but there 
 are some Lady-day holdings, especially in the north and east of the 
 county. The former period, however, is considered the most desirable 
 one. The length of holdings varies considerably. In many instances, 
 leases are granted for terms of seven, fourteen, or twenty-one years, 
 and a very large number of farms are held at yearly tenancies with, 
 and sometimes without, a written agreement. An outgoing tenant 
 has no allowances whatever for any unexhausted improvements, except 
 in occasional cases. Draining is generally either performed by the 
 landlord, the tenant paying a yearly per-centage on the outlay, or it is 
 executed by the landlord and tenant jointly, the former perhaps paying 
 for the cutting of the drains, and the latter being at the expense of the 
 filling in. Instances of a tenant being allowed for any unexhausted 
 manures are exceedingly rare. In Lady-day holdings the valuation 
 would comprise the growing wheat crop, and preparations made for 
 the turnip, barley, and oat tillages, &c. In Michaelmas holdings the 
 matters which come under a valuer's notice are subject to great varia- 
 tion, according to the time at which the incoming tenant commences 
 to do any labour on the farm. Sometimes the outgoing tenant prepares 
 for and tills the root and spring grain crops ; and in such cases, if the 
 incoming tenant intends to take them they have to be valued. In 
 others, the greater part of these preparations is performed by the out- 
 going tenant, but the incoming one puts in the crops, and of course the 
 valuation must be made accordingly. Sometimes farm-yard manure left 
 in the yards or in heaps in the fields, not used, is paid for, and sometimes 
 it is not ; but if carted together in heaps, the labour attendant on it is 
 considered, llay is usually taken by the incoming tenant at a valuation. 
 The outgoing tenant allows for the repairs required to gates, fences, &c., 
 and roofs of thatch ; but slated roofs arc kept in repair by the landlord. 
 
 CiimVcrlaml and Wesimoreland. — The two principal times of entry 
 are Candlemas (February 2nd) and Lady-day (March 25th); in some 
 instances the land is entered on at Candlemas, and the buildings at 
 May-day. If the outgoing tenant leaves the farm at Candlemas, he 
 keeps up his regular stock of horses and cattle until the end of the 
 terra, and then takes away or sells the remainder of the unconsumcd
 
 CUMBERLAND AND AVESTMOEELAND. 5 
 
 vestures of the last year's crop, hay and straw. The mannro is left for 
 tlic incoming tenant, free of any charge. In some instances the land- 
 lord binds the tenant to consume at least one-half of the last year's 
 crop of hay and straw, in preference to the undefined term of "keeping 
 up the usual and regular stock." The outgoing tenant is allowed for 
 rent of the land, taxes, seed, and labour, on all bare or dead fallow in 
 the last year of the term ; also the cost-price of clover and grass seeds 
 sown the preceding spring, if kept uninjured. Gates and fences must 
 be left in tenantable repair by the outgoing tenant, or an equivalent 
 in money must be given to the incoming tenant to make good the 
 same. Should the entry be at Lady-day, the tenant is in some cases 
 bound to consume upon the premises at least two-thirds of the last 
 year's crop of hay and straw, and leave the manure for the use of the 
 incoming tenant, ft'ee of charge ; and where the entry is on " land at 
 Candlemas, and buildings at May-day," the tenant consumes the whole 
 of the vestures upon the premises, and leaves the manure as before 
 stated. Where this is the custom, the outgoing tenant is only entitled 
 to one ploughing and harrowing, seed wheat, carting, and spreading 
 manure, &c., on dead fallow in the last year. This is the custom on 
 Lord Lonsdale's farms both in Cumberland and Westmoreland, and in 
 fact the universal one in the latter county. The landlord usually 
 drains the land, the tenant paying five per cent, upon the outlay, and 
 carting all the materials free. The compensation for unexhausted 
 improvements must be according to agreement ; and there are very 
 few, if any, for which an outgoing tenant can claim. There is perhaps, 
 no estate where a portion of the oilcake bill is allowed in the last year ; 
 nor is it usual to allow for bones, guano, &c., except when such manures 
 are put upon the dead fallow for wheat in the last year, and the out- 
 going tenant had no benefit from such manures. The land is chiefly 
 managed under the five and six-course rotation, and the bare or dead 
 fallow constitutes the principal claim that an outgoing tenant has 
 against his successor. Each party chooses a valuer, and in case of 
 'disagreement, the two choose a third, whose decision is final. The 
 value of one acre might be as follows : — Ploughing and harrowing four 
 times at 9s., <£l IGs. ; land rent, say £1 5s. ; seed wheat, say £1 5s. ; 
 brining and sowing, 6^. ; leading manure, say 65. 6d. ; spreading 
 ditto, Is. Gd. ; water-furrowing and guttering. Is. 6d. ; rates and taxes, 
 2s. Gd. — total, £4 18s. Gd. If the land has been limed in that year, 
 the cost of the lime as well as the leading and spreading must be 
 added, and so when guano or bones have been used. The cost of an 
 acre of fallow wheat chiefly depends upon the value of the land, the 
 market price of seed wheat, and the distance the manure is to be
 
 6 DERBYSHIRE. 
 
 carted. These settlements or arbitrations are always arranged and 
 carried out by the outgoing and incoming tenants, and the landlord 
 seldom takes any part in the matter. The land is chiefly managed 
 under the five- and six-course rotation ; that is— first year, oats out of 
 lea ; second, potatoes and turnips, or dead fallow ; third, wheat or 
 barley, sown with grass seeds ; fourth, pasture, or mown for hay ; 
 fifth, pasture ; sixth, pasture. If the five-course be adopted, the field 
 would be in oats, and not in pasture, in the sixth year. 
 
 Berbi/shire.— The invariable time of entry in this county is at Lady- 
 day. The oflFgoing tenant has no awaygoing crop, and the payments 
 by the incoming tenant to his predecessor are regulated by the usual 
 restrictions and covenants under which the generality of tenant farmers 
 live, and occasionally by custom. The compensation to outgoing 
 tenants for improvements is limited, and frequently discretional with 
 the landlord. There is an allowance for unexpended bones, and for 
 other light tillages, such as guano, rape-dust, &c. Generally speaking, 
 the tenant by his conditions is not allowed compensation for draining, 
 but in most cases tlie landlord finds drain-tiles or pipes, as may be 
 required; and if the landlord or agent gives consent in writing for 
 such drainage to be executed, the oflFgoing tenant would be allowed 
 compensation, on a seven years' scale. Sometimes when there is no 
 covenant, and the tenant quits on the " custom," draining is allowed 
 for on a ten years' scale. Of late years there has been an allowance 
 of one-third for oilcake consumed on the farm the previous year, and 
 in some instances half the cost price. Further allowances ought to be 
 made for cake consumed, extending over the second year, and one- 
 fourth or one-sixth of the cost price would be a compensation, good 
 proofs being produced that such quantities were consumed. Half-inch 
 drill bones extend over a period of six years on grass lands when 
 pastured; and where crops are taken, over half that time. In some 
 instances where tenants are living under conditions, the whole of the 
 manure made on the farm becomes the landlord's property; and the 
 offgoing tenant has no interest in making rich manure. Hence it not 
 unfrequently happens that the whole of one year's hay and straw is 
 left unconsumcd, to be taken to at a reduced price. The hay and 
 straw left on the farm are paid for ])y the award of the arbitrator, 
 subject to tonnage, by which is meant a consuming price, the tenant 
 not being allowed to sell hay or sti-aw off the farm. Leases arc the 
 exception, not the rule; and the land is held from year to year, with 
 a six-months' notice from cither party. There is no allowance for 
 buildings of stone or brick erected by the tenant. Where sheds or
 
 DERBYSHinE NORTH. 7 
 
 hovels are built of wood by the tenant, he can remove them or receive 
 compensation ; but there is nothing to compel ti landlord to take to such 
 buildings at a valuation. 
 
 Derlnjsldre North. — The general time of entry is at Lady-day, and 
 the outgoing tenant has, with a few exceptions, no awaygoing crop. 
 Compensation is made to the outgoing tenant for making clean turnip 
 or summer fallows the year preceding his quitting, by payment of one 
 year's rent and taxes, for dressings, turnip seed and hoeing, labour on 
 manure from the yard, for any purchased manure applied, and for seed 
 wheat and sowing on the summer fallows, deducting from tlie turnip 
 land two-thirds of the value of the turnip crop if drawn oif, and one- 
 half if eaten on the land. For land having had one crop of corn, since 
 fallowed, and laid down with hay or clover-seeds, the cost price of the 
 seeds and labour of sowing is allowed ; and for wheat sown upon grass 
 or clover ley, the cost price of the seed and labour of ploughing, harrow- 
 ing and sowing. For bones, where no crop has been taken, the cost 
 price and labour of carriage and drilling is allowed ; where one crop 
 has been taken, two-thirds of the same ; and where two crops, one-third. 
 Where land has been pastured, only one-sixth is deducted from the cost 
 price and labour, for each year's pasturage. Turnips arc not considered 
 to be a crop.^ For guano and rape-dust the cost price is allowed where 
 no crop has been taken; after one crop one-third of the value is allowed; 
 and upon land pastured, one year after application, two-thirds of the 
 value ; and after two years, one-third. For mountain or carboniferous 
 lime, the same allowances are made throughout as for bones. For 
 magnesian lime, the full value of the lime and labour is allowed where 
 no crop has been taken, and one-half after one crop. Where land has 
 been pastured, one-fourth of the cost price and labour is deducted for 
 each year's pasturage. One-fourth of the cost of linseed-cake consumed 
 either in the yard by cattle, or on the land by sheep, during the last 
 year of the tenancy, is generally allowed ; and one-eighth of that con- 
 sumed in the previous year. The tenant by his conditions is mostly 
 allowed compensation for draining, varying from seven to ten years ; 
 when it is done by the landlord, five per cent, is generally charged. 
 The maniu-e made from the last year's produce, which in former years 
 was left by the outgoing tenant without any compensation, is now in 
 many instances allowed for, and it is found that the outgoing tenant 
 having an interest in it, makes better manure than when he was not 
 paid for it under the old system. Hay and straw left upon the premises 
 are taken to at a valuation not exceeding one-fourth of the quantity of 
 the preceding year's growth.
 
 8 DEVONSHIRE, DORSETSHIRE, 
 
 Dci'onsJtirc. — Farms arc usually given up at cither Lady-day or 
 Michaelmas. In a Lady-day holding, the tenant has no awaygoing 
 crop ; he gives up everything -when he leaves. The incoming tenant 
 generally puts in the wheat and ploughs up the wheat eddish by a 
 provision to that effect in the lease. If he has no such agreement there 
 is no custom to give him a right of entry at all, and he has to compen- 
 Bate the outgoing tenant for seed and labour. The outgoing tenant 
 has no claim for improvements that he has made on his farm, nor for 
 cake, except by special agreement. Where they arc tenants-at-will 
 from year to year, the tenant is subject to six months' notice; and 
 whenever the six-months' notice is given, there is an auction, and the 
 tenant sells oif everything, including the manure. There is scarcely 
 any general agricultural custom existing in the county. The tenants 
 are not allowed to sell hay or straw, the covenants restrain them ; but 
 they sell reed. A tenant when he is going out never sows wheat 
 himself by the custom of the country, but by agreement. There is no 
 custom as to machinery, thrashing machines, &c. Cider presses are 
 sometimes the property of the tenant, and he takes them away : if not, 
 he leaves them ; and it is the same with thrashing machines. 
 
 DorscWiirc. — The time of entry upon farms is generally Lady-day, 
 On April Gth the incoming tenant enters the meadows with the land 
 for turnips ; on July Gth all other pasture or down lands, with land of 
 two years' ley for wheat; on October 10th the remainder of the arable 
 lands; and on July Gth of the following year the remainder of the 
 house, barns, stables, &c. He is allowed stabling and straw for food 
 and litter for a certain number of horses, and the use of the yards for 
 turning up manure : he has also a cottage for the carter and shepherd, 
 with part of the farm-house, and other offices therein. The outgoing 
 tenant generally takes the following wheat or barley crop, unless there 
 is some special agreement; it is valued on the ground, and is generally 
 worked off by the outgoing tenant. The manure belongs to the in- 
 coming tenant, whether it be made with oilcake, or whether it is mere 
 straw and water, and he usually takes any hay that may be left at a 
 valuation. As a general thing, there is no compensation for improve- 
 ments to outgoing tenants, and none for artificial manures, chalking, 
 marling, claying, buildings, fences, orchards, &c. Mr. Sturt's " Tenant 
 Security Rules," however, provide a scale of compensation to tenants 
 for unexhausted improvements, extending in the case of liming to the 
 seventh year, and in the case of draining to the eighth year. By rule 
 loth, "For conversion of all pasture land into arable, the outgoing 
 tenant is to U alloiml IS-s. in the pound for paring and burning before
 
 DURHAM AND NOllTnUMBERLAND. 9 
 
 the first corn or pulse crop is taken." I.eases are not very general in 
 the county. Lord Portman has granted very long ones to his tenants, 
 half the rent being fixed at a money price, and the other half regulated 
 by the price of barley and wheat, taken on the average of the United 
 Kingdom, as returned by the London Gazette, 
 
 Durham and Northvmlcrland.—TliQ customs in Northumberland and 
 
 Durham arc much alike. Some estates are let on an annual tenancy, 
 
 but the best cultivated and most productive, are let on leases. Fifteen 
 
 years is a common term of lease, but on large farms, or where much 
 
 improvement is contemplated, involving a large outlay by the tenant, a 
 
 term of 21 years is not unusual. The general time of entry is the 13th 
 
 of May ; but it is stipulated that the outgoing tenant shall preserve 
 
 uneaten a certain portion of new grass for meadow, and of old meadow 
 
 land, if there be any, from the end of the preceding October, the 
 
 incoming tenant finding the grass seeds, or paying for them afterwards. 
 
 The away-going crop belongs to the outgoing tenant, by whom it is 
 
 sown, and he is entitled to reap it, and to retain the stack garth, barns 
 
 and granaries till the 13th of May ensuing ; but it is a better plan, and 
 
 becoming customary, to bind the out-going tenant to sell, and the 
 
 incoming tenant to purchase, the standing crop at harvest, by the 
 
 valuation of two parties mutually chosen, who shall choose an umpire, 
 
 leaving the prices to be determined by the market averages of the 
 
 district at three periods, — November, February, and May, at each of 
 
 which a payment shall be made. The threshing machine, if a fixed 
 
 one, is also transferred by valuation in like manner, so that the entering 
 
 tenant gets possession of the whole of the premises and produce at once. 
 
 The new tenant has a right to enter into, and plough the stubble land 
 
 intended for fallow or root crops in the ensuing year, after October, 
 
 and to cart out manure to it during the winter, but it is better, and 
 
 frequently stipulated for, that such work shall be done by the out-going 
 
 tenant, who has little occupation for his draughts, and that he be paid 
 
 per acre for doing so, by the incoming tenant. The tenant is bound 
 
 to the repair of buildings and fences (walls, roofs, and main timber 
 
 excepted). Tenants are required to insure against fire. Draining is 
 
 done by the landlord, the tenant carting materials, and paying five per 
 
 cent, upon the outlay for labour and pipes. In some cases, as on the 
 
 estates of Lord Grey, the Greenwich Hospital, and others, compensation 
 
 is given, on a fixed ratio, for lime and purchased manures applied 
 
 during the last three years of the term, in case the tenant leaves the 
 
 farm. In all cases the manure made upon the premises must be applied 
 
 to the farm.
 
 10 ESSEX, GLOUCESTEESHIRE. 
 
 Esscr. — The custom of compensation varies in different localities. 
 The rent upon the fallowed land (and in some cases the tithe and rates) 
 is for the most part allowed to the outgoing tenant. He is also allowed 
 for the ploughing and tillage thereon ; for the seed-sowing and cultiva- 
 tion of the turnips, mangolds, or green cattle-crops upon the land under 
 fallow ; for the labour thereon, and the dung, either left in heaps, or 
 carted on for the green crops ; and for the cloverseeds and grasses, if 
 sown upon lands fallowed in the preceding year, whether a plant is 
 obtained or not. Hay is valned at about three-fourths of the market 
 price — being the market value, less the cost of cutting out and market- 
 ing, and the value of a load of manure brought on to tlic farm. The 
 outgoing tenant fodders out his straw and hay of the last year, or 
 the incoming tenant pays the cost of thrashing out the crops, and 
 carts out the grain arising therefrom a distance not exceeding ten miles 
 by way of compensation for the straw, &c. The tenant repairs the 
 buildings, and the landlord finds materials. No compensation is allowed 
 for draining, or for artificial manure, or oilcake, &c., consumed. A 
 yearly tenant is entitled by custom to the rent, ploughing, and tillages 
 of fallows ; to the feeding value of hay and straw ; and to compensation 
 for manure left upon the farm : the principle being that he shall leave 
 the farm in the same way as he entered. The dung is measured in the 
 heap, and valued at so much the square yard. All the tenancies com- 
 mence at New Michaelmas, and the outgoing tenant is entitled to the 
 use of the barns until the Lady-day following, but not of the house, 
 stables, &c. after Michaelmas-day. 
 
 Gloucestershire. — The tenancies are yearly ones, and sometimes even 
 without a written agreement. They are chiefly from Lady-day, but 
 some few are from Michaelmas. The commonest course of cropping is 
 turnips, barley, "seeds" two years (clover, rye-grass, &c.), wheat, oats 
 or barley. When the " seeds " are ploughed up at one year, the oat or 
 barley crop after the wheat is omitted : the first is called the six-field 
 system, the other the four-field system. The landlord keeps all the 
 buildings in repair, and, generally speaking, the gates ; and the tenant 
 does the hauling for the repairs, finds straw for the thatched buildings, 
 and keeps good all the fences. He cannot sell off either hay, straw, or 
 roots, nor take more than two white-straw crops under the six-field 
 system, or one under the fonr-field system, in succession. On leaving, 
 the tenant is generally allowed a barn, yard and field till Midsummer, 
 for feeding off his hay, &c. The wheat straw is valued to the incoming 
 tenant at a consuming price, also the hay and other straw if he agrees 
 to take to it. The outgoing tenant generally does all necessary work on
 
 HAMPSHIHE, HERTFORDSHIRE. 11 
 
 the land, such as ploughing, sowing, &c., up to a short time before 
 quitting, and is paid for the same by valuation. One-year " seeds " are 
 valued to the incoming tenant, but two-year "seeds" are not. The 
 outgoing tenant is paid the whole cost of growing the turnip or other 
 root crop, including artificial manures. If it be a Lady-day taking, the 
 root crop belongs to the outgoing tenant, if a Michaelmas taking, it is 
 left for the incoming tenant, the outgoing tenant being paid the same 
 in both cases. Dung left in the yards or hauled on to the land belongs 
 to the incoming tenant, who pays for all the labour of preparing or 
 hauling out the same. Sainfoin is pai.d for according to its age, &c. 
 Vetches grown and fed on the land are paid for— that is, the ploughing, 
 sowing, &c., but not the seed. All exceptions to the above payments 
 are made by special agreement. The foregoing customs have been in 
 practice for many years, with scarcely any alteration. Those in the 
 vale of Gloucestershire differ in many respects as to cropping, selling 
 of hay, straw, &c. ; but the valuations between outgoing and in- 
 coming tenants do not differ so much. The Cotswold Hills are the 
 chief corn growing district, the vale being chiefly pasture or small 
 arable farms. 
 
 Eamj^shire.—The usual time of giving up farms is at Michaelmas ; 
 and the custom, when the lease is to expire next Michaelmas, generally 
 allows the new tenant to have access some time before Lady-day. He 
 would come on to prepare his turnip crop, and have about June or July 
 a certain portion of land to enter upon to prepare his wheat season ; and 
 there is nothing else he would be permitted to do until after harvest. 
 He would first come to prepare his fallow for the ensuing year, and for 
 the wheat a short time before Michaelmas. The dung belongs to the land- 
 lord ; in fact there is not a single thing the outgoing tenant can claim ; he 
 Avould feed the stock next year on the hay and straw grown in the last 
 year of his tenancy, but he cannot dispose of it ; still he may keep the 
 incoming tenant out, and say, I will have the yards and fodder myself, 
 and consume the hay. The incoming tenant has no claim to any hay 
 unless he purchase it by agreement. 
 
 Herffordshire.—The general custom is to enter upon the fallows at 
 Lady-day, commencing tenancy the Michaelmas following. Every tenant 
 is allowed to quit as he entered, if he can prove that entry, unless he be 
 bound by an agreement to the contrary ; if not, the custom is laid down 
 in the regular way, for a certain portion of the fallows to be given up at 
 a certain time. With respect to the straw and manure, he quits as he 
 enters. The outgoing tenant gives up the farm, and his tenancy ceases
 
 13 HEREFORDSHIRE AND MONMOUTHSHIRE. 
 
 at i\Iicliaelmas ; and the incoming tenant has a right of entering at 
 Lady-day, to prepare the wheat stubble for turnips, and the fallow land 
 for turnip or other crops. The incoming tenant has a right to put 
 stock on tlie fallows, but not on any other part of the farm, and to sow 
 seeds in the growing crops, but he has no power of entry to prepare 
 the clover-land for wheat till the 29th of September. The dung usually 
 belon!>;s to the landlord, who has also a claim for dilapidations, which 
 are irenerally enforced, such as for dilapidations of premises, and 
 waste upon the soil. If there is any injury by cross-cropping or 
 neglect of tillage (as Avhen the land is foul with grass, twitch, &c.) 
 the landlord has a legal remedy, and frequently recovers compensation 
 upon those grounds. The tenant has no claim for compensation for 
 any kind of improvements, and there is no custom that gives him 
 anything. 
 
 HprofonMiirc and Monmouthshire— IXia time of entry is chiefly at 
 Candlemas-day, the 2nd of February. The notice to quit is given on or 
 before the previous 1st of August. Yearly tenancies prevail, leases are 
 the exception. The outgoing tenant on the 2nd of February is entitled 
 to an awaygoing crop of wheat upon one-third of his arable land ; he 
 receives from the incoming tenant the value of the clover-seeds sown, 
 and of the acts of husbandry in planting them, viz., sowing and harrow- 
 ing. The outgoing tenant keeps the dwelling-house and fold-yards, 
 and also one inclosure of grass land near the fold (locally termed a 
 " boozy pasture "), until the 1st of ?Iay, with the exception of two 
 rooms"^ in the house for servants, and stable for the horses, which the 
 incoming tenant may claim. The incoming tenant receives possession 
 of the whole of his occupation, excepting, as before mentioned, on the 
 2nd of February ; he has no acts of husbandry nor unexhausted manures 
 to pay for, and he receives the manure made in the winter by the out- 
 going tenant's stock without charge. The outgoing tenant has the 
 right to cut his awaygoing crop of wheat; he has also the power to 
 defer thrashing the same to any period previous to the 1st of May after 
 he has harvested his crop, thereby, if so inclined, depriving the incoming 
 tenant of any wheat straw during the first winter. This absurd custom 
 is to a great extent done away with by special agreements, making it 
 compulsory for the outgoing tenant to sell and the incoming tenant to 
 purchase the wheat crop at a valuation previous to harvest. In the 
 hop districts the poles are generally valued to the incoming tenant ; it 
 is of course his interest, but it is not compulsory upon him to take to 
 them. (Three-fourths of the hops known as the "Worcestershire 
 plantation " are grown in Herefordshire.) No comi^ensation for drain-
 
 HUNTINGDONSHIRE. 13 
 
 ing is made to the outgoing tenant ; but latterly landlords have incurred 
 all the outlay for draining, the tenant paying a percentage. Cider mills 
 and presses for making cider are generally the property of the landlord, 
 as well as any fixed thrashing machines. The takings in Monmouth- 
 shire are generally at Candlemas, as in Herefordshire, and the customs 
 almost the same, with the exception of that of "land share," by virtue 
 of which the incoming tenant claims one-fifth of the outgoing tenant's 
 wheat crop, if on a fallow, and one-third if sown on a clover-ley. This 
 custom, which for obvious reasons frequently operates most unjustly, is 
 also common in the lower part of Gloucestershire ("West). 
 
 HunUngdonshire. — The holdings are for the most part from Lady-day. 
 After a tenant has given or received notice to quit, he is allowed to sow 
 with wheat only such lands as the landlord or his steward may think 
 fit, and in all respects according to his or their direction, or else to 
 allow the incoming tenant to enter on such lands at any time after the 
 1st day of October. He must also allow the landlord or his incoming 
 tenant to enter on the lands proper to be sown with beans or peas after 
 the 2nd of February, and upon the land proper to be sown with corn or 
 grain or seeds any time after the Ist day of March in the last year. 
 He is paid for the herbage of the land so entered on, as also for all 
 bones or other artificial manures purchased and used in the production 
 of turnips or coleseed in the last year, as well as for claying fen laud. 
 For lime, four years' dropping, he is allowed oue-fourth of the cost in 
 equal proportions at the end of every year from the time of application 
 of the same, and also for young seeds if sown with the first crop after 
 fallows, and not injured by sheep or cattle. He has also a fair valua- 
 tion for labour done on dead fallows, in such last year, if the said 
 fallows be on lands unfit for turnips or coleseed; such valuation to be 
 made and determined on by two disinterested persons, one to be chosen 
 by each party, or their umpire, whose determination shall be final. In 
 cases where the outgoing tenant does the seeding, or any of it, he is 
 allowed for all seed and labour. The outgoing tenant is allowed one- 
 third for all linseed cake or other artificial food used in the last year 
 before quitting. He is also allowed for all carriage on materials for 
 buildings and tiles for draining, and for draining done in the five years 
 previous to quitting, in the followmg proportions ; viz. : For that done 
 within the last year the whole cost ; for that done one year, four-fifths ; 
 two years, three-fifths ; three years, two-fifths ; and four years, one-fifth 
 of the cost, after which no claim will be allowed for underdraining or 
 carriage on building materials. The buildings are made by the land- 
 lord, and the tenant keeps them in repair. A great deal of the draining
 
 11 KENT. 
 
 is done by the laudlorJ, and the tenant pays interest on the outlay 
 varying from four to six per cent., but five per cent, is the most 
 general rate. 
 
 Xeiit. — The rate of compensation for improvements as between the 
 outgoing and incoming tenant varies considerably in Kent. In the 
 AVeald of Kent nearly everything is paid for. In the eastern part of 
 Kent the custom is not quite so extensive ; generally the dang is not 
 paid for, it is the property of the landlord, and the tenant is paid for 
 labour to it ouly ; but this difference does not exactly occur where the 
 division of the county for other purposes is taken. There is another 
 mode in ]\[id Kent. In the "Weald of Kent, the papnents made to the 
 outgoing tenant are for the underwood down to the stubb, the fallows, 
 including rent and taxes and manures, and generally speaking half 
 manures, but they are in some cases now being bought off by the 
 landlords. Hop poles, hay, straw, ploughings, seeds sowu, dressings, 
 young hops planted, seasons, and generally those things are paid for 
 which are considered to be an improvement of the land, and of which 
 the incoming tenant derives the benefit, such as striking up of land to 
 let off the water. If the hop land is also struck up, and laid up round, 
 to take off the water, that is paid for too. Valuers always charge the 
 incoming tenant with it, and in doing so, if it be wood, they allow 
 four years to run out ; if one year is fallow, it goes over another ; if 
 one crop is taken, they give three-fourths of the outlay ; if two crops, 
 half; if three, three-quarters ; and if four, nothing is allowed. Draining 
 is generally considered as embraced under the term " custom of the 
 country," which is a very common one in the Kent agreements. By 
 the term "custom," is meant rather the mode of valuing; it is very 
 common in agreements that the tenant shall be " valued out by the 
 custom of the country." There is no such thing as chalking, in the 
 Weald of Kent. Sometimes things are done in preparing the grass 
 land for years to come; the seed is occasionally allowed for in those 
 cases. There is scarcely any county in which more is paid for between 
 the outgoing and incoming tenant. Valuers take into account dilapida- 
 tions, both as to farm buildings and detrimental acts of husbandry, when 
 they are permitted to apply the custom. 
 
 In ]\Iid Kent the allowances are more favourable to the outgoing 
 tenant than in East Kent. In the Weald, hay passes from the out- 
 going to the incoming tenant at what is called a feed price, which 
 prevails throughout the "Weald of Kent and Sussex. A feed price is a 
 price between what is termed the foddering or dung price, and the sale 
 price; that is to say, if hay was worth £4 a ton, it would fetch 505.
 
 KENT. 15 
 
 The dang is valued in the Weald of Kent and Sussex in the same way, 
 at a feed price, partly acccording to measure and partly according to 
 quality. If cake or corn have been used, more is paid for the manure 
 so made. The custom in the eastern part of Kent is not to pay 
 for so much ; the dung there is principally the property of the land- 
 lord. Tlie land is, moreover, of a better quality, very little fallow 
 is done, and consequently very little is paid for ; the hay is paid 
 for pretty generally in the same way as in the Weald. Mid Kent is 
 better cultivated than the Weald of Kent, and things are paid for 
 higher; hay, and straw, and dung at a market value; and the custom 
 is more certain, though it does not embrace such a variety of things as 
 the mode of cultivation in the Weald of Kent requires. 
 
 The time of entry in the Tenterden part of the county is always at 
 Michaelmas, either the 29th of September or the 11th of October. The 
 outgoing tenant is paid for all tillages of every description. He is paid 
 for hay and straw at a feed price, and for the underwood. In that 
 woody country, he is paid for all drainage, of every description, that is 
 performed with tiles or wood ; if with wood, he is paid for four years : 
 with tiles he is allowed to go back ten years ; that is, a certain amount 
 is deducted each year. Supposing he left at the end of the ninth year he 
 would have 2s. to receive, if the first cost was 20s. Draining has been 
 much more extensively practised in the course of the last few years. 
 All bought manures are paid for, as also are half-mauures ; that is, the 
 half part of what the dung would have been valued at, had it been 
 valued the year before. That applies to artificial manures, but not in the 
 same ratio. The latter are paid for according to their durability ; for 
 instance, guano would be paid one-third of the cost price after one crop 
 off ; for bones or lime the outgoing tenant would be allowed half the 
 sum ; and for carting dung, marl, or mould, there is nothing at all after 
 one crop. Where chalk is used, it is a very permanent job, and the 
 outgoing tenant is paid considerably for it. There is nothing allowed 
 for oilcake except in the shape of the extra price of the manure so made, 
 and the manure made from the straw is put at a different price from 
 the fatting-cake dung. The valuers value the latter from sight : if 
 there is any diflBculty they call for evidence ; when they come to value, 
 it is the custom of the country for parties having a farm to produce the 
 invoice of the artificial manures. There was once no allowance for the 
 improvement of buildings, not even for an oast in a hop district, but 
 now it is generally considered that the tenant has a right to be paid for 
 all buildings erected by him with the landlord's consent. The great 
 value of the woods in Kent is for conversion into hop poles ; and if near 
 cutting, the incoming tenant has a larger sum to pay for the wood.
 
 16 LANCASHIRE AND CHESHIRE. 
 
 The outgoing tenant receives according to the age of the wood. Every 
 act of husbandry beneficial to the Incoming tenant is vakied. Labour, 
 rent, and taxes, are allowed for naked fallows, but nothing for any 
 cultivation the tenant has taken one crop from. 
 
 In the Ilythc part of the county the usual entry is at Michaelmas. 
 The manure is always considered to be the property of the landlord ; 
 and the feeding properties of the straw, as also that of the hay (about 
 two- thirds of the real value, or the feed price), are the property of the 
 tenant. The incoming tenant has not the right of entry from Michael- 
 mas for the cultivation of turnips or preparation for wheat, unless a 
 previous agreement has been made to that effect with the outgoing 
 tenant. Terms of agreement from year to year are entered into, Avhicli 
 admit of the incoming tenant entering to prepare for wheat previous to 
 the determination of the late tenancy. The outgoing tenant receives 
 no compensation for oilcake or artificial manure. Durable improve- 
 ments, such as drainage or chalking, are frequently made, but entirely 
 at the hazard of the tenant. There is no security of custom or anything 
 else, unless there is a private agreement, entered into between the land- 
 lord and the tenant, that compensation shall be allowed. 
 
 It is contrary to the custom of the district to allow anything, either 
 yalue or labour, for half-manures. The only allowance made is for 
 labour or any manure from which no crop has been taken, whether it 
 has been carried and spread on the laud or is in the mixen. Where 
 fallows are made by the outgoing tenant the last year, he is always 
 allowed the rent and taxes on them from the previous Michaelmas, 
 together with labour of eveiy kind, including labour on manure, made 
 and carried out ; and if sown with turnips, the cost of the seed and 
 putting in, &c., in fact for everything done to the fallow since the 
 preceding cxop was taken off. When the tenant leaves the farm at 
 Michaelmas, he is frequently permitted by agreement with his landlord 
 to have the use of the buildings to thrash and prepare the corn for the 
 market. 
 
 Lancashire and Cheshire. — The customs between the outgoing and 
 incoming tenants in Lancashire are very limited indeed. A tenant 
 professes to quit his land on the 2nd of February, Avitli the exception 
 of a pasture field, called " the outlet for the cattle." The house, build- 
 ings, and the outlet are given up on the Ist or 12th of May, as the 
 case may be. The tenant leaving his land, therefore, on the 2nd of 
 February, has nothing upon it but the wheat crop, and for that he gets 
 half of the wheat crop allowed him by the incoming tenant, if it is after 
 gi-cen crops (which it is generally) : if it is after the summer fallow, he
 
 LEICESTERSHIRE. 17 
 
 gets two-thirds of the wheat crop allowed liira, aud that is all, with the 
 exception of the allowance for clover or grass-seeds which have been 
 sown the previous year. The holdings may be considered as yearly 
 ones from Lady-daj'. The dung belongs to the l\irm, and the incoming 
 tenant makes no payment for the manure he finds upon the premises. 
 Compensation for improvements is rarely given by the landlord to the 
 outgoing tenant. The customs in Cheshire between outgoing and in- 
 coming tenants are similar to those in Lancasliire, and the period of 
 entry is the same. The landlord generally puts the buildings into 
 repair when the tenant goes to the place, and he expects the tenant to 
 keep them in repair upon being found materials in the rough. There 
 are various customs upon different estates, but those repairs arc gene- 
 rally done by private agreement, as there is no well-established custom 
 applicable to buildings. If the tenants put up a thrashing machine 
 they would probably be allowed to remove it, but it is optional with the 
 landlord. 
 
 Leicestershire. — The time of entry is generally Lady-day. The 
 manure, the produce of the farm, belongs to the landlord, and the 
 outgoing tenant receives nothing for it unless he paid for it on his 
 entry, which is not a usual occurrence, and it passes to the inconiing 
 tenant free of charge. In the absence of any agreement, the custom is 
 as follows : On a summer fallow sown with wheat by the outgoing 
 tenant he would be allowed for the same, the valuation of the various 
 tillages, the carting and spreading manure, the cost of seed, and one 
 year's rent, rates, and tithes. In the case of a clover ley sown v.'itli 
 wheat, half-a-year's rent, rates, and tithes, the cost of seed, ploughing, 
 harrowing, &c., are allowed ; and on bean stubbles, the cost of plough- 
 ing, sowing, and seed. When seeds are sown with the preceding spring 
 corn, the cost of the seed only is allowed, and nothing for putting it in. 
 No compensation is given for the culture of the preceding crop of 
 turnips, though eaten on the land, nor for manure used in raising the 
 crop, however large it may be. There is no allowance for draining, or 
 any other permanent improvements ; nor is anything paid for the con- 
 sumption of extraneous food by stock, or for use of artificial manures. 
 The above is all which the custom of the country would give a tenant ; 
 but of late years a more liberal system, by agreement, has been adopted 
 by some landlords. An allowance is made by them for draining done 
 by the tenant within seven years ; for instance, he would receive 
 nothing for what had been done seven years ; one-seventh of the cost 
 of that done six years, and so on. In some instances, a portion of 
 the cost of unexhausted artificial manures which have been used is
 
 18 LINCOLNSHIRE NOETH. 
 
 allowed ; but these agTcements are by no means general. One-fonrtli 
 of the oilcake of the last two years is sometimes allowed, if no corn crop 
 has been grown from it. There is also a three-years' allowance for 
 bones on the lighter soils, and a two-years' one for lime. According to 
 the custom of the country a tenant cannot remove or sell off any hay, 
 straw, or vegetable roots, without permission of the landlord ; or turn 
 any permanent grass pastures into arable land. 
 
 Lincolnshire {XortJi — The Wolds). — The usual period for entering 
 upon fixnns is Lady-day (the Gth of April) for arable land, and old May- 
 day (the 13th of May) for old pasture land and buildings. Upon some 
 f\u-ms the outgoing tenant is entitled to an away-going crop of corn 
 varying in quantity, which is usually taken by the incoming tenant at 
 a valuation. The outgoing tenant generally sows all the wheat in the 
 autumn before he quits, and is paid for seed and labour. He generally 
 ploughs once all land in turn to be fallowed, and sometimes he sows 
 the spring corn ; and for both of these he is paid. The outgoing 
 tenant is also paid the following allowances by the landlord or his 
 incoming tenant on quitting, viz. : For draining, Avhere the landlord 
 finds the tiles and the tenant puts them in (which is the most usual 
 com'se), the allowance extends over four years, one-fourth of the cost 
 being deducted off for each crop taken by the outgoing tenant ; for 
 marling and chalking, the allowance extends over ten years ; for lime, 
 five years ; for claying sand or peaty soils, five years ; for bones used 
 within twelve months preceding, two-thirds if used dry, and one-half 
 if dissolved in acid, and for those used the previous year one-third if 
 used diy, and one-fourth if dissolved in acid ; for guano or rape-dust 
 used within twelve months preceding for turnips or other green crops, 
 two-thirds of the cost ; for oilcake given to cattle and sheep, one-third 
 of the cost of that used within twelve months preceding, and one-sixth 
 of that used in the previous year ; and for seeds and clover sown within 
 twelve months of quitting, the whole of the cost of seed and the labour 
 of sowing is allowed, where they have not been stocked after th'e 1st 
 of November, and up to tiiat time only with sheep and pigs. These 
 allowances are ascertained by two arbitrators, one selected by the out- 
 going and the other by the landlord or his incoming tenant, or by an 
 umpire to be appointed by the arbitrators in case of their disagreement. 
 They are varied upon some few properties by agreement ; but upon a 
 considerable part of the district tliey are made by custom, and not 
 inserted in the farm agreements. Formerly the allowances were con- 
 fined to acts of husbandry only. The rotation of croi)S varies on dif- 
 ferent soils and in dili'erent localities, but the four-field course is the
 
 LlNCOLNSHIllE SOUTH. 19 
 
 one most jrencrally followed. There is very little land let npon lease, 
 and the usual tenancies are yearly ones determinable by a six-months' 
 notice from either party. The necessaiy farm buildings are generally 
 erected by the landlord, and afterwards kept in repair by the tenant ; 
 but in some cases they are put up by the tenants under a special 
 agreement. 
 
 Lincolnshire {South). — The usual compensations in South Lincoln- 
 sliire are for tillages, manure, and draining. The whole of the last 
 year's bill for bones is allowed when only a crop of turnips has been 
 taken ; and one-fourth part of the cake bill is allowed, which is 
 ascertained by producing the bill of the last year. In the eastern part 
 of Lincolnshire, where claying is carried on to a considerable extent, 
 the outlay is spread over four years, and one-fourth is deducted for 
 every year. On the heath land, when a tenant receives notice to quit, 
 the usual plan, where there is a good understanding between the land- 
 lord and tenant, is that the tenant receiving notice applies to the agent 
 to know whether he is to continue to cultivate the land in the way he 
 has been in the habit of doing ; and if the agent has confidence in him, 
 and he is not leaving from any fault that the agent or landlord has to 
 find with him, he is told to continue the same manner of cultivation, 
 with the assurance that he will be paid for all acts of husbandry per- 
 formed between Michaelmas and Lady-day, that is, sowing wheat and 
 ploughing the land ready for the turnip fallows, &c. He is paid 
 for the herbage upon the land that is sown with wheat seed. If he 
 is not empowered to go on and farm in the usual manner, the tenant 
 would have no claim for manure used after the time of his notice, nor 
 for the wheat if sown in opposition to the instruction of the landlord or 
 his agent. 
 
 Usually speaking, the tenant farms under an agreement that gives the 
 incoming tenant the right of entry after a specified time — after the 10th 
 of October, for sowing wheat ; and after the 1st of February, to prepare 
 the land for the spring corn, peas, and beans. After the first of February 
 the incoming tenant may plough up the stubbles on paying for any 
 sheep-keeping there may be. The lease ends on the 5th of April, and 
 the notice to quit is given before the 10th of October. The outgoing 
 tenant has no rights for acts of husbandry from October to April with- 
 out permission from the landlord or his agent. If there was a hostile 
 feeling between the outgoing tenant and the landlord, the land is, 
 according to the system, left abandoned as to cultivation from October 
 to the {ith of April, when the incoming tenant can claim to enter. If 
 there is no agreement the latter could not come on even to sow the 
 
 c 2
 
 20 MIDDLESEX. 
 
 wheat, and the outgoing tenant could not be compelled to do so after 
 receiving notice to quit. The incoming tenant entering upon the land 
 after the 1st of February would have a right to make use of all the 
 manure that was made u})on the farm from the produce of the farm, and 
 the outgoing tenant would be allowed compensation for bones and lime 
 and oilcake, and the other matters. He would have no compensation 
 for acts of husbandry between the lOtli of October and the 1st of 
 February ; but if he continued to consume oilcake, he would be entitled 
 to be paid for a proportion of all the cake used up to the 5th of April. 
 The customs as to the allowance for bones and marling, or chalking, 
 have been upheld in a court of law. The draining custom is that when 
 the landlord finds the tiles, and the tenant only finds the labour, the 
 expense is divided into three years. As to the cost of the labour, if the 
 tenant has had three crops he receives nothing for that; if he has only 
 had two crops, he receives one-third ; and if one crop, two-thirds. When 
 the tenant has been at the whole expense of the draining, it is divided 
 into seven years in the same way. The custom for drainage is not a 
 customary allowance made by all landlords, but that for bones and 
 manure is customary with all. Five per cent, is charged when the land- 
 lord does all the work of drainage, and the landlord invariablyjrats up 
 the buildings throughout the estate. Draining is now very much done 
 by the Drainage Commissioners, the tenant paying interest on the 
 money expended. The practice of the Lincolnshire valuers is to set off 
 dilapidations in buildings against tenant-right; and that set-off is 
 extended to the state of the farm as to clean husbandry. The foul state 
 of the fallows would not enter into the calculation unless there had been 
 cross-cropping or gross neglect, and then reductions would be made. 
 
 Miildlesex. — The entry is generally on September 29, and the holdings 
 are, to a great extent, from year to year. In leases it is almost univer- 
 sally stipulated that the incoming tenant should come on the farm to 
 sow clover seeds in April. If the outgoing tenant sows them, he is 
 paid for them by the incoming tenant. The latter sometimes takes to 
 the fallows about April, in which case he is allowed stable-room for his 
 horses. In the ordinary twelve-months' holdings the incoming tenant 
 often makes a similar agreement. The landlord generally finds tiles 
 for draining, and the tenant the labour ; but if the former does all, he 
 charges five per cent. In consequence of the proximity to the metro- 
 polis, hay and straw are always allowed to be sold ; but by the custom 
 a load of manure must be brought back for every one of hay and straw 
 that leaves the farm. If a tenant pays for the manure on coming in 
 (which is almost always the case), he is paid for it on leaving. The
 
 MO^^MOUTHSHIRE, NORFOLK, NORTHAMPTONSHIRE. 21 
 
 incoming tenant is bound to take all the wlieat-straw and hay left on 
 the farm at a market price, and the Lenten straw at a consuming price. 
 Tenants under yearl}^ holdings arc allowed to sell all their straw at a 
 market price, while those under lease may only sell their wheat-straw ; 
 and it is the custom not to sow more than two white-straw crops in 
 succession. The outgoing tenant is allowed for dressings and half- 
 dressings, but scarcely anything for unexhausted improvements. There 
 is no allowance for guano or bones; and in valuing manure, no evidence 
 is called for as to what cake has been used. The tenant-right is, in 
 fact, of a most limited character. 
 
 Monmouthshire. — See Herefordshire. 
 
 Norfolk. — On the Holkham estate the leases are for 21 years, and on 
 others for 8, 12, or 16 years. Tenants-at-will are comparatively few. 
 The entry is always on October 11th. The four-course shift is pretty 
 universal, viz., one-fourth turnips or mangold-wurtzels, one-fourth 
 barley, one-fourth grass, and one-fourth wheat ; and occasionally, on 
 part of the land sown with mangold-wurtzel, that crop is followed by 
 wheat instead of barley. The Norfolk covenant applies strictly to 
 root-crops, and not to tillages. For the latter there is no valuation. 
 The root-crop itself is valued at Michaelmas, and is paid for by the in- 
 coming tenant, as are also the hay and the manure left in the farm-yard. 
 Latterly it has been the custom to value the hay a little above the con- 
 suming price. The incoming tenant either sows the seeds in the last 
 year, or pays the seed-bill of the out-going tenant, who is bound to 
 harrow and roll the land so sown. There is no away-going crop, but 
 the incoming tenant takes the straw, chaflp, and colder, for which he 
 carries the corn to market. This is the practice on the Holkham estate, 
 but on other properties the incoming tenant lias generally to pay for the 
 thrashing and dressing of the crop, as well as for carrying it to market. 
 On the Holkham estate the drainage is all done by the landlord, who 
 charges a per-centage ; the buildings are put in good repair by hiu], 
 and the tenant is expected to keep the walls and houses generally in 
 order : but new roofs are paid for by the landlord. 
 
 Korthamptonsldre. — The periods of entry are Michaelmas and Lady- 
 day, but the latter is the most general. At the Michaelmas entry, the 
 custom of the country is to pay for acts of husbandry, seed, and labour, 
 and for dead fallows. The outgoing tenant is entitled to the full value 
 of his turnips, or he may eat them on the land, so that it is cleared by 
 April 5th. Unless the incoming tenant takes his crops, or his hay and
 
 23 NORTHAMPTONSHIRE. 
 
 straw at a valuation, the outgoing one can claim the use of the barns, 
 houses, and yards up to Lady-day to consume them. With respect to 
 the Lady-day holdings, the outgoing tenant has not the away-going 
 wheat crop, but is reimbursed by the incoming tenant for the back rent 
 (if on fallow) and for seed and labour, up to the time of his leaving. 
 The manure in all cases belongs to the farm. The buildings arc gene- 
 rally made by the landlord, and the tenant is bound to keep and leave 
 them in full repair, as also gates, fences, and water-courses. No com- 
 pensation is given at quitting for manures, or unexhausted improve- 
 ments of any kind. The custom allows nothing if a tenant builds or 
 drains, but during the last three years an allowance for under-draining 
 lias become common in some districts. The landlord most commonly 
 gives the tiles, and the tenant puts them in at his own expense. In the 
 case of Lady-day holdings, the custom is more universal ; but it varies 
 so much in different parts of the county, and is so undefined, that special 
 agreements are mostly resorted to, to prevent disputes. The farms are 
 in many cases held by the year, but leases are not uncommon. 
 
 In the Peterborough part of the county the valuation to an outgoing 
 tenant is generally as follows : On bare summer fallows he is allowed 
 for four ploughings and orders, labour or manure, carting, sowing the 
 wheat or barley (as the case may be), with one year's rates and rent ; 
 but if the land is in its course for growing turnips or other roots, no 
 rent is allowed. The outgoing tenant is allowed half-a-year's rent and 
 rates on lands sown with wheat after oats, beans, clover, or vegetables. 
 The manure belongs to the estate ; if any carriage is done the labour 
 is paid for ; and if artificial manure has been used for the green crop, 
 the whole of the bill and carriage is allowed. Half of the oilcake bill 
 in the last year is allowed ; but to prevent imposition the amount of 
 the three last years' oilcake bills is added together, and the outgoing 
 tenant receives one-sixth. The sowing and seed bill of new seeds is 
 allowed if they are not stocked after Michaelmas. When lime has 
 been used, the tenant is entitled to five years' benefit ; and when burnt 
 soil is applied to fallows or green crops, an allowance is made for 
 labour and can-iage. All temporary buildings, such as cow, calf, 
 and waggon hovel, piggeries, &c., if built by the tenant, with the 
 landlord's sanction, are valued and paid for at the time of quitting. 
 Hay and clover in stack, not consumed, are valued at two-thirds of the 
 market price; and all skimming or scarifying of stubbles after harvest 
 at their full value. A great quantity of drainage (which, if practi- 
 cable, is not less than three feet) is done by the aid of Government 
 drainage loans ; and when the landlord finds both tiles and labour, he 
 charges five per cent. If the landlord finds tiles, and the tenant labour.
 
 NORTHUMBERLAND, NOTTINGHAMSHIRE. 23 
 
 the latter is allowed at quitting on a five years' scale. If it has been 
 done only one year he is paid for the whole of the labour and the car- 
 riage of tiles; if two years, four-fifths; and so on. Where the tenant 
 finds both tiles and labour, ho is allowed on a seven years' scale. In 
 the fen districts a great deal of claying is done, at a cost of from £2 to 
 £3 an acre; and this is also allowed for on a seven years' scale. 
 
 jyorUmmherland. — See Durham. 
 
 Nottinghamsldre. — The time of entry in Nottinghamshire is generally 
 at Lady-day, the 25th of March. At the Lady-day entry, the acts of 
 husbandry for which the incoming tenant pays, but for which the land- 
 lord is liable, are all the labour of making the fallows, one year's rent 
 and taxes on the same, deducting for potatoes and other vegetable 
 crops, according to custom. In most cases the labour only of apply- 
 ing the manure is allowed, the seed and labour on the corn sown, and 
 the full value of purchased tillages. This is followed by the half- 
 tillages, or land in first year's seed, for which the cost price of the 
 seeds and labour is allowed, and the application of all purchased till- 
 ages, deducting one-third as being exhausted by the first grain crop. 
 As regards the last crop, or the one on clover ley, or pea or bean stub- 
 bles, seed and labour are generally allowed, with, in some instances, 
 a proportionate amount of purchased tillages, though chiefly under 
 special agreement. In the fields, as distinguished from the commons 
 in this county, the following crop is allowed, deducting one year's rent 
 and taxes. Unexpended tillages are also claimed, and in some in- 
 stances allowed when the following crop is taken, but this in a great 
 measure depends upon the former application of tillages to the four 
 courses of cropping. One year's manure remaining on the premises 
 unconsumed at the time of quitting is the property of the tenant or 
 landlord, according to their agreement. The custom of the country 
 does not usually allow anything for drainage, nor for buildings. For 
 bones and other artificial manures, and oilcake, there are certain por- 
 tions allowed. The compensation the outgoing tenant is entitled to 
 for those artificial manures which he has employed upon his farm 
 [western side of Nottingham] is generally one-third; there is an 
 allowance for three crops, deducting a third each crop. Whatever may 
 have been the intervening crop, the expenditure in bones is spread over 
 three years. Where the manure belongs to the tenant, he would get 
 his compensation in the extra price of the manure ; but where the 
 manure belongs to the landlord, they usually allow one-fourth of the 
 oilcake to the tenant. The allowance for the rapecake (which is very
 
 24. NOTTINGHAMSHIRE SOUTH. 
 
 generally used) is the same as for bones. In some cases manure has 
 been led into the farm, and has been allowed for. The custom in part 
 of South Xottinghamshire would allow it. Probablj stable manure 
 led from the town would not be allowed for after the first crop. In 
 some parts of the county an allowance has been made for drainage ; 
 for shallow draining (three feet) seven years, deducting a seventh each 
 3'ear, are allowed, and for deeper draining (ten, twelve, or twenty feet) 
 ten years. The allowance would not be enforced as a custom of the 
 country, but only as the custom of certain estates. In some instances 
 the tiles arc given ; but generally they are put in under the superin- 
 tendence of the landlord. In the ordinary farm agreements, there 
 are generally special tenant-right agreements with reference to bones, 
 rapccake, and rapedust. In many instances the landlord finds materials 
 for the buildings, in others he does them altogether, and in others he 
 does nothing. The houses and barns are generally put up by the land- 
 lord ; but any increase in the buildings is often made entirely by the 
 tenant. Where the tenants erect buildings themselves, they arc con- 
 structed on wooden posts so that they may be removed. 
 
 Nottinghamshire {South). — By the custom, wheat upon fallow, seed 
 and labour, and the rates and taxes for one year, are paid for ; and in 
 many cases two-thirds of the fallow crop are allowed to the outgoing 
 tenant. The entry is at Lady-day, and the outgoing tenant is paid 
 rates and taxes, which is termed seed and labour valuation. That takes 
 in a year's rates and taxes, besides making the fallows, the seed, and 
 the sowing. The customs vary very much even in the same villages : 
 it is the practice of each estate rather than the custom of the country. 
 There is not generally any compensation to the outgoing tenant for 
 improvements by bones, nor by artificial manure ; but cake compensa- 
 tion is granted in some instances. In some parts the manure made 
 upon the farm belongs to the tenant, and in others it does not. Some- 
 times the crop is valued to the incoming tenant ; that is termed the 
 open-field custom. The outgoing crop is taken by valuation, and if 
 not taken, the outgoing tenant would get his crop. In the case of 
 Avheat sown upon clover, the ploughing, seed, and labour, and the 
 herbage from ]\Iichaelmas to Lady-day are allowed by the custom, and 
 so for all the wheat sown upon pea or bean stubbles. Increased value 
 is \mi upon the manure when valued if the tenant has purchased oilcake. 
 Lime is always paid for by the general custom when no white crops 
 have been taken. There is also an allowance for drainage, of five or six 
 years upon the labour or tiles that have been used by the tenant, when 
 he finds both. The general custom in some districts is for the landlord
 
 OXFORDSHIRE. 25 
 
 to find the tiles and tlic tenant the labour, for which he gets an allow- 
 ance ; but the agreements by which the land is held from year to year 
 usually define the allowances which the tenant is to receive on quitting, 
 
 Oxfordshire. — The time of entry in Oxfordshire is generally at 
 Michaelmas. The incoming tenant pays the outgoing tenant for the 
 ploughing, manure, seed, hoeing, &c., upon the turnip land, and gene- 
 rally takes a portion of the hay at a spending price. He pays for the 
 clover-seed, and other seeds sown with the barley. This applies espe- 
 cially to the district round Chipping Norton. The dung which is made 
 from the last crop belongs to the incoming tenant, in w^hatever way it 
 is made. Compensation is very seldom given for any improvements 
 made by the outgoing tenant; it has been given for bones and guano, 
 but generally speaking there is none, and hardly any for draining. 
 Tenancies usually commence on New ]\Iichaelmas-day, The outgoing 
 tenant may enter on the wheatlands in August, and has half the stable 
 from that date; but at Michaelmas, when the new tenant arrives, the 
 old occupant gives up only half the house. He retains the other moiety, 
 a portion of the stable, all the barns, sheds, and yards till the follow- 
 ing May or June. The outgoing tenant of course thrashes and delivers 
 his corn himself. He also spends the " straw, chaff, and caving " in 
 the yards, leaving the manure for the new tenant. The usual covenants 
 are, that the outgoing tenant should be paid for all operations of 
 husbandry performed in the preparation of the ground for root crops or 
 fallows. The turnips, &c., are valued by the number of ploughings, 
 hoeings, and cost of manuring, and not by the worth of the crop. Fal- 
 lows are similarly paid for, and thus the land is often ploughed in wet 
 weather, and little attempt is made to clean it, as the price depends 
 more upon what has been done than on the manner in which it has been 
 performed. The price allowed for ploughing of course varies on dif- 
 ferent soils from 8s. to 14s. an acre. The incoming tenant takes to all, 
 or only half, the hay and wheat-straw at a spending price, and the out- 
 going tenant retains the rest of the produce. Large sums have been 
 borrowed from the Government for drainage, and refunded at the rate 
 of Gi per cent, for twenty-one years. Some landlords make the tenants 
 pay all this charge ; while others drain the land themselves, and charge 
 the tenants 5 per cent. ; and on some estates it is customary for the 
 landlord to find pipes, and the tenant to perform the labour of under- 
 draining. The greater part of the college property is let on leases of 
 twenty-one years, renewable every seven years. The fine is something 
 less than one year's income : and the college has the power of increasing 
 it, and may renew the lease or not, at option. The lessee is supposed
 
 '2Q TvUTLAXP, SHROPSHIRE. 
 
 to keep the buildings in repair, and is only allowed by the college such 
 timber as gro\YS on the estate. Farm leases are the exception, and nob 
 the rule, and almost all the land is held by yearly tenancies, subject to 
 a six-months' notice to quit. 
 
 Bit tl^iuJ.— The time of entry is usually Lady-day. The following 
 scale of allowances to an outgomg tenant is made on one of the largest 
 estates in the county. 
 
 For Draiumg.— When the landlord has found tiles and the tenant 
 the labour, the allowance shall be upon a three-years' principle; and 
 when the tenant has found both, upon a five-years' principle, provided 
 the drainage has been done to the satisfection of the landlord, and an 
 account rendered every year. For lime on a three-years' principle, 
 including cartage : for bones, or other approved artificial manures used 
 for turnips or other green crops in the preceding year, the whole cost 
 limited to 25s. per acre. 
 
 For cake, one fourth of the cost price of linseed or cotton cakes 
 consumed by beasts in yards or sheep on seeds or turnips during the 
 two previous years, provided the quantity does not exceed the average 
 of the two preceding years. The tenancies are usually from year to 
 year, terminable at Lady-day by a six-months' notice from either party. 
 
 Shropshire. — The period of entry upon farms in Shropshire is on the 
 25tli of ]\Larch, invariably ; never at Michaelmas ; and they are held by 
 a rack tenancy from year to year, determinable by a half-year's notice 
 given on the 25th of the preceding September. Other leases are com- 
 paratively unknown, but on many estates the same farm is held by one 
 family from generation to generation. The outgoing tenant receives no 
 remuneration from his successor for any improvements he may have 
 made upon the farm, nor for any artificial manure or food. A great 
 deal of draining has been done of late years ; and the landlord either 
 does all except the hauling, and charges the tenant five per cent., or the 
 landlord finds pipes and the tenant lays them at his own expense, under 
 the supervision of a bailiff. The soil of the county varies considerably 
 in character and quality. The arable portion consists partly of strong 
 loamy soil, suitable for the growth of wheat and oats, and partly of 
 lighter description of soil, suitable to the turnip and barley system of 
 husbandly. The pasture and meadow lands generally require, and are 
 capable of, much improvement. Within the last few years it has been 
 customary for the landlord in a few districts to apply bones ; the tenant 
 hauling and spreading them, and paying a per-centage upon their cost. 
 The wheat crop, on a change of tenancy, is generally divided between
 
 SOMERSETSHIRE. S7 
 
 the outgoing- aud incoming tenants, in the proportion of one-half to 
 each of that grown upon clover-lejs, and two-thirds to the outgoing 
 tenant, and one-third to tiie incoming tenant, of that grown upon 
 fahows. In a district on the southern side of the county it is the 
 custom for the outgoing tenant to take the whole of the wheat crop 
 ui)on quitting. It is the custom for the outgoing tenant not to depas- 
 ture the young clovers after the 2nd of November next previous to 
 quitting, and the meadow lands to be mown the following harvest arc 
 usually paid up for from the 2nd February next previous to the time of 
 quitting. The outgoing tenant is allowed the use of a boozy pasture 
 appointed by the landlord for the purpose of consuming thereon any 
 hay or straw unconsumed at the expiration of his tenancy, the Lady-day 
 previously: and his right in this terminates the 1st of May next after 
 he quits. The outgoing tenant has stackyard room for his share of the 
 way-going crop, and the use of a barn to thrash it in, till the 25th of 
 December next after his tenancy ends. He is paid by his successor for 
 the clover-seeds he has sown the last year previous to his quitting, upon 
 his producing the bills to show that he has purchased the same. He is 
 also paid a fair compensation for any ploughing he may have done for 
 the convenience of his successor. 
 
 Somerscisldre. — The time of entry about Taunton and westward is 
 Michaelmas, but in other districts generally Lady-day. In the Michael- 
 mas lettings the incoming tenant has no right of entry for cultivation 
 before Michaelmas. He generally gets in to plough the turnip fallows ; 
 sometimes by virtue of a provision in the lease. It is only in these 
 lettings that the manure can be used for potatoes. In the Lady-day 
 lettings there is great difficulty in getting possession of the arable land 
 time enough to put in spring grain, where there are natural pasture 
 meadows that spring early, and will not bear treading out. The occu- 
 pation terminates either at Christmas or Candlemas, when the rest of 
 the holding of the farm is fi'om Lady-day. There is no compensation 
 for purchased manure, or cakes used in the fatting of cattle ; or for 
 draining, and any other improvements. In a recent assize case, of 
 Beadon v. TrhnMt, which was referred to arbitration, there were eleven 
 different customs spoken to, in different parts of the county. Each 
 part of the county has its peculiar custom ; and, as the tenants come in 
 they expect to go out. In some cases they take the offgoing crop ; but 
 a clause is generally inserted in the leases that seed and labour, and a 
 half-year's rent, shall be charged to the new tenant in lieu of it. The 
 outgoing tenant is often allowed to consume the straw on the premises, 
 or he leaves it to be consumed at a feed price, by the incoming tenant,
 
 28 STAFFOrvDSHIRE, SUFFOLK. 
 
 to whom the mauurc belongs, for the use of the farm, in either case. 
 The principal tenancies are from year to year ; but in a great many 
 instances they are for seven years. 
 
 Staffordshire. — The period of entry is Lady-day. The incoming 
 tenant pays for the grass seeds ; he pays also for any tiUage that mtiy 
 liave been done to the fallows, and he divides with the outgoing tenant 
 for the v/heat crop. He takes half where it is a brush crop, and one- 
 third where it is a fallow croj) ; the incoming tenant also pays for the 
 manure, and for the straw and hay that may be on the farm at the time 
 at the consuming price. In the north, the district on the clay, there 
 are some considei-ablc naked follows. For wheat fallows, where it has 
 been really a naked follow during the whole of th.e summer, the out- 
 going tenant takes two-thirds of the crop. A brush crop is a crop of 
 wheat that does not follow a naked fallow ; but one, under any other 
 circumstances, after clover, roots, or green crops of any description. 
 As regards compensation, the tenants fall back upon the custom of 
 the district ; and those customs probably Avere fixed when nothing was 
 known of artificial food or artificial manure, or drainage. There is no 
 custom to show to allow compensation to the tenant for marling, or 
 for the a})plication of artificial manure of any description. There is, 
 in fact, no other custom as between incoming and outgoing tenant than 
 the compensation for seeds, straw, and hay. The customs ap[>ly chiefly 
 to the light soils of Staffordshire ; but there is very little difference 
 in the whole county of StaflPord. So various and contradictory are 
 the customs of tenancy, even in the same district, that now^ the 
 settlement of all such questions are left with expei'ienced arbitrators, 
 who make as nearly as they can an equitable adjustment between the 
 parties. 
 
 Suffolk. — There is no tenant-right in the county, beyond that recog- 
 nized by the custom of the country, and by the leases or agreements 
 generally granted in the neighbourhood. Quite one-third of the county 
 is holden upon a custom without any written agreement ; but in every 
 instance where leases exist, the covenants for entering and quitting 
 the occupation are distinctly laid down, and fully acted up to. The 
 custom of the country varies in diflerent neighbourhoods : but where 
 the understanding is verbal, the custom which exists in that particular 
 district is considered mutually binding on each party. The outgoing 
 tenant is always paid for the rents and rates incurred on the last year's 
 fallows, and for all reasonable tillage, such as ploughing and harrowing, 
 expended thereon. lie is also paid for the muck, hay, and stover made
 
 SUEREy. 29 
 
 in the last year, and for the clover seeds and the sowing thereof in tlic 
 preceding spring. In many instances it is the custom to allow a 
 certain sum for the clover and hean stubbles, but this is generally 
 considered unfair and undesirable. On the hght lands they grow all 
 the fallows Avith root crops ; whereas, on the heavy land they grow only 
 a portion. The outgoing tenant carts the manure for the crop, and is 
 paid both for the muck and cartage. Tares are sometimes grown on a 
 part of the heavy land fallows, in which case the rent; and rates are not 
 allowed, and the tillages after the removal of the crop alone are paid 
 for. The outgoing tenant is paid for all sheep-folding, provided no 
 after-crop has been taken from the land. If any straw remains uncon- 
 verted into manure, the outgoing tenant receives a nominal price for 
 the same, and also for stover or old hay left over from former years. 
 It is usual to mow but half the pastures of the farm, though in some 
 districts the whole can be mown with impunity, and the custom of the 
 country compels it to be paid for at the price per ton which duly 
 appointed valuers may determine. The incoming tenant often finds the 
 clover and the turnip seeds, and does the sowing thereof, but this is a 
 matter of arrangement ; and he also pays 3s. per acre for the groundago 
 or feed of the young clover. The straw, chaff, and colder of the crop 
 just harvested are the property of the landlord or incoming tenant ; and 
 the custom compels his successor to thrash, dress, and deliver the corn 
 of the outgoing tenant. October the 11th is the day on which the old 
 and new hire ceases and commences. 
 
 Surrey. — Where the full custom of the country is spoken of, and the 
 tenant speaks of being paid a full valuation, according to the custom of 
 the country, it means that he is paid for dressings and half-dressings of 
 dung, lime, and sheep foldings ; for ploughings and ftillows, including 
 the rent and taxes of the same, half-fallows, young seeds, and leys, the 
 underwoods down to the stem, and hay and straw at a feeding price : 
 the hay and straw being at a market price where the half-dressings are 
 not paid for. These valuations are, according to the custom, settled by 
 two valuers, or their umpire. Fraud takes place principally in the 
 half-dressings; by which is generally meant, in this county, those 
 manurings from which only one crop of corn has been taken. The 
 " dressing " is dung in the yards, made in the ordinary course of culti- 
 vation. Where manure has been put on at a distance of time, it is 
 exceedingly difficult to check both the quantity and quality of the 
 dressings, and very false returns are made of it. In many cases where 
 farms are about to be given up, tenants scatter down an inferior and 
 smaller quantity of manure, and claim for it as dressing ; they work, in
 
 30 SURPvEY. 
 
 f^ict, np to a quitting:. Having been so imposed upon at starting, they 
 feel justified in playing the same tricks upon their quitting. 
 
 T\liere the tenants have a right to remuneration for dressings and 
 half-dressings, they are paid for the manure, the vaUic of which is 
 increased by cake ; the value of the cake is taken into consideration in 
 the value of the manure ; but not as a proportion of the cost of the 
 cake. There is not much difficulty in ascertaining the value of the 
 manure while it is in the yard ; though there is after it has been carried 
 out and mixed with the soil, even that from which no crop has been 
 taken; and the difficulty is of course increased with half-dressings. 
 The landlord, if it is inconvenient to lay out the money on draining, 
 allows at the end of the holding (where the tenant is holding by the 
 year) for a certain number of years a portion of the outlay of drainage, 
 calculated according to the number of years, and according to the 
 quality of the draining. 
 
 Draining some few years ago was of a very inferior quality to what it 
 is now ; it used to be done with the mole plough, and with bushes ; but 
 now that draining is improved in its quality, and tile-drainiug is carried 
 on extensively, landlords are enlarging the number of years over which 
 those allowances extend. Many of them have made arrangements that 
 for any drainage done within ten or twelve years, the tenant shall be 
 allowed on quitting a valuation in tenths or twelfths, as may be agTeed. 
 Naked fallows are not very much practised ; but whether they are naked 
 or bearing a green crop, they are equally paid for, the only difference 
 being that the seed is added in the latter case. The landowners have 
 bought up, in many instances, the half-dressings and half-fallows, as 
 those allowances have proved so onerous to the incoming tenant, and 
 have a tendency to lower the rents of the farms. In this respect it is, 
 perhaps, the most expensive of all the English counties. 
 
 It is the habit, in making a clear fallow, in Surrey, that the ploughing 
 should be repeated four times; and they are very frequently done at 
 improper seasons. It is difficult for an arbitrator to say in October 
 how they were done at the time, though there would be none in giving 
 compensation for the foulness of the laud, which valuers will not con- 
 sider. The system of valuations has grown up and greatly extended in 
 Surrey for a good many years. It originated when prices were higher 
 than they are now ; but it has been of gradual growth, and there are 
 still attempts to increase it. There has been an attempt, since the 
 Tithe Commutation Act converted tithes into a reut-charge, to add to 
 the cost of the fallows the tithe rent-charge upon the acres coming for 
 fallow, in addition to the rent and taxes ; but the thing is better under- 
 stood now, and has been very properly resisted. When a tenant entering
 
 SUSSEX. 31 
 
 upon a farm pays fov such things with the cognizance of the landlord, 
 he is entitled to be paid when he quits. The disadvantage of the Surrey 
 tenant-right is, that the same money is paid for the slovenly as for the 
 good farming, as the valuers never take the bad state of the fallow into 
 account. 
 
 Sussex. — The time of entry on farms in Susses is Michaelmas, and 
 generally the 29th of September in preference to the 10th of October. 
 The customary payments by incoming tenants differ very much in the 
 different districts of the county. Taking the boundary on the north as 
 the South Downs, HamjDshire on the west, on the east the Adur, and 
 the sea on the south, the customs north of the Downs and east of the 
 Adur differ very much from those in the other parts of the county. In 
 part of Sussex, west of the river Adur, the customary payments by the 
 incoming to the outgoing tenant are confined very much to acts of 
 Imsbandry, the hay at a feeding-off price, and the fodder of the straw. 
 In the Weald the payments are extended to the payment for dressings 
 and half-dressings of dung and lime, and to the payment for fallows and 
 tillage performed on the fallows, and the rent and taxes thereon, and for 
 leys. The payment for dressings is for the manures made on the land, 
 and from which no crop has been produced. Half- dressings comprise 
 the dung from which one crop has been produced. So with regard to 
 lime, where no crop has been produced, or if it be in the heap on the 
 farm, it is paid for at the full cost. If it has produced one straw crop, 
 then it is paid for at half the cost. 
 
 On heavy laud in the "Wealds of Sussex, Kent, Hampshire, and 
 Surrey, it is usual to make naked fallows. The tenant has received 
 no advantage from the expensive course of ploughing and cleaning into 
 which the field has been put, and therefore it is customary to allow 
 him for that which is a benefit to his successor, and which is no benefit 
 to him. They are also paid in the Weald and east of Sussex for the 
 hedgerows and underwood, if included in the occupation. When they 
 enter upon a farm, they enter upon the underwood also, and pay to 
 their predecessors in proportion to the number of years' growth of the 
 underwood. The principle of underwood is applied also to the hedges, 
 which are often very wide, and approaching the nature of a copse, or 
 "shaws " as they are termed. They are allowed for the growth up to 
 a certain number of years. By the custom these would be valued to 
 the stem, unless there is any special arrangement to the contrary. 
 The buildings are usually maintained by the landlord providing the 
 materials and the tenant applying them. Acts of husbandry on the 
 summer fallows, with the rent and taxes that arise out of the land,
 
 32 WARWICKSHIRE, WESTMORELAND. 
 
 having been useless to the tenant, form a large proportion of the valua- 
 tion of tenant-right to the incoming tenant. The coming-in upon a 
 Sussex form, where those tillages and half-tillages and rent and taxes arc 
 paid, is very heavy ; and the tenant-right is very frequently mortgaged. 
 Everything, labour, rent, and taxes, is paid for naked fallows, but 
 nothing for any cultivation from which the tenant has taken one crop. 
 If manure is made in a yard used for feeding cattle, the valuer will 
 place a different price upon it from what he would do if it was merely 
 a straw-yard in which the cattle had been fed upon straw only. With 
 regard to turnips, the ploughings, sowings, and dressings are taken into 
 the valuation, from the outgoing to the incoming tenant. Rapecake, 
 nitrate of soda, rags, and guano, are all allowed for, according to their 
 relative value, llapecake is more lasting tlian rags, and rags than 
 guano. There is no compensation for buikling, as it is considered that 
 buildings erected on the estate become part of the fee of that estate. 
 Stone lime is very much used in Sussex, and is often brought from a 
 great distance, and the outgoing tenant is allowed half-price for it after 
 one crop. 
 
 Warwichsldre. — The time of entry upon farms in "Warwickshire was 
 formerly Lady-day, but Michaelmas "takes" are now becoming more 
 general. The entry being at Lady-day, the outgoing tenant takes the 
 following crop of wheat, except an arrangement is made for payment : 
 the agreements are now generaUy made so that the outgoing tenant 
 cannot hold it, but it must be valued to the incoming tenant. By the 
 custom the outgoing tenant takes the value of it, whether it be in -the 
 crop or in money. If a change of tenancy takes place at Michaelmas, 
 the incoming tenant takes to the wheat sown if it has been regularly 
 fallowed, and in the event of their not agreeing, the outgoing tenant 
 is at liberty to come upon the land and reap it himself. The manure 
 on the premises belongs to the landlord. If the outgoing tenant has 
 spent cake upon the feeding of his beasts, he could not claim undei' 
 the present custom any compensation. Bones arc not much used 
 except on the sandy soils, and the tinie over which compensation is 
 allowed for them is reduced to three years. No compensation for im- 
 provement of the land is paid by the incoming tenant except for 
 draining. That, according to the custom of many valuers, only extends 
 over three years ; but the time is getting extended. If the landlord 
 does it all, the tenant i)ays five per cent. ; but very generally the land- 
 lord finds the pipes, and the tenant pays for laying them down. 
 
 Westmoreland. — See Cumberland.
 
 ISLE OF WIGHT, W[LT,SlimE. 33 
 
 Isle of Wifjlit. — The usual period for eutering upon farms is at Old 
 Michaelmas, the 11th of October. A great part of the island is farmed 
 under leases from year to year, or for terms of seven or fourteen years, 
 and no allowance is made for artificial manures or unexhausted im- 
 l)roYements. About ten years since a system of allowances similar to 
 that in use in North Lincolnshire was introduced upon Lord Yar- 
 borough's estates in the island, and it is understood tiiat the same 
 allowances have boon adopted upon some other properties. In tliis 
 agreement provision was made for the entry by the incoming tenant to 
 portions of the farm at different periods, and the tenancy was also 
 determinable by twelve months' notice. Artificial manures are not used 
 to any great extent, but the use of them is increasing. The landlord 
 finds materials, and the tenant pays the labour of keeping the buildings, 
 gates, and hurdles in repair. 
 
 ]ViIf shire. — The tenancy ceases in the Warminster part of the county 
 generally at Michaelmas. There are two leases ; the pasture-lands are 
 taken at Lady-day, and the arable farms at Michaelmas. On the arable 
 lands the incoming tenant pays the outgoing tenant for the tillages. 
 If the landlord makes the agreement that the latter is to do the tillages, 
 he is paid for it, such as ploughing for turnips, and anything of that 
 kind ; that is oftener done, however, by the incoming tenant. By the 
 custom of the country, the incoming tenant has the right of entry to 
 prepare a certain quantity of the land for the turnip crop before 
 Michaelmas. He has also the right to come on in June, generally, to 
 prepare for wheat on the old ley. The manure belongs by the custom 
 of the country to the incoming tenant. Unless by special agreement 
 the tenant has the right to make those preparations of the land, there 
 would be little or nothing to be paid by the incoming tenant to the 
 outgoing one. There is nothing paid by the incoming tenant for im- 
 provements. The dung belongs to the incoming tenant ; even if the 
 outgoing tenant had kept a number of beasts upon oilcake, he would 
 have no compensation for that ; and the same if he has used bones. 
 For permanent pastures the tenant receives no compensation. The 
 custom of the incoming tenant entering upon the land to do the acts of 
 husbandry, is the one under which most of the new tenants have 
 entered. They have paid nothing, but have done the work themselves 
 on entering. The time of entry in the districts south-west, west, and 
 north-west of Devizes, is Lady-day. These districts consist of lands, 
 on the Gault, lower green sand, Kimmeridge and Oxford clays, and 
 partially on outlying portions of forest marble and oolitic formation. 
 The land south-east and north-east of Devizes is generally on the
 
 34 WORCESTERSHIRE, YORKSHIRE — EAST RIDING. 
 
 chalks, with deposits in the larger valleys, and is appropriated to the 
 growth of corn and tlie rearing (and latterly, to some extent, the 
 fattening) of sheep, and is subject to the same customs as the War- 
 minster district. The incoming tenant takes possession of the farm on 
 the 25th of JIarch, by paying for all tillages ; there is but a small pro- 
 portion of arable land in the Devizes neighbourhood : it is generally 
 grazing and dairy land. The tillages are paid for, and the labour of 
 manuring. At present the outgoing tenants would have no compensa- 
 tion if tlicy drained the land themselves. When draining is done, the 
 usual practice is for the landlord to find pipes, and the tenant to do the 
 hauling and labour : but as the holdings are from year to year, and no 
 compensation is given for unexhausted improvements, drainage is not 
 cai-ried to half the extent it otherwise would. 
 
 Worcosfershlre. — There is no definite time for the incoming tenant to 
 enter upon and quit his farm, but Lady-day is most usual. The off- 
 going tenant allows his successor to commence ploughing the wheat 
 stubbles on the 1st of January previous to quitting, and does not turn 
 stock upon the mowing meadows after Candlemas-day. He is paid 
 for the seed and labour of sowing clover seeds upon his lands bearing 
 the last crop of Lent grain, and leaves one-third of the olfgoing wheat 
 crop for the landlord or incoming tenant (after the value of the tithe is 
 deducted), and all the straw. There is no compensation for any kind 
 of improvements or manures, unless specially provided for ; and if any 
 buildings have been erected by the outgoing tenant, he is not allowed 
 to remove them, although they have been put up with the landlord's 
 permission. All the manure belongs to the landlord, and the ofigoing 
 tenant has till the 1st of May, after quitting, the use of the fold-yard, 
 and a boozy pasture adjoining or near, for the purpose of consuming 
 his hay and straw of the last year's growth ; and also a room in the 
 house for the servant in attendance upon such stock as are consuming 
 the hay and straw. Since the Tithe Commutation Act agreements 
 have become much more general, and the custom is but seldom 
 appealed to. 
 
 YorksJiire — East Jiidinf/.— ThevQ is hardly one single instance of an 
 agricultural lease in this riding : all are yearly holdings, and these are 
 almost universally from Lady-day. With regard to acts of husbandry, 
 the offgoing tenant is entitled to a waygoing crop, varying from one- 
 third to one-fourth of the arable according to the description of land 
 he farms. Upon the wold part of the riding they have one-quarter 
 part of the arable land as a waygoing crop ; upon the stronger soils
 
 YORKSHlllE — EAST RIDING. 35 
 
 (Eolderncss, for instance, and the west side of the wolds, which is 
 called Howdeushire) the waygoing crop averages one-third part of the 
 arable land. 
 
 The East Hiding of Yorkshire may be described as consisting of three 
 districts, distinct in their surfaces and soils, viz., Holderness, the chalk 
 wolds, and the plain, west of the wolds, which last section contains 
 Howdenshire and the Vale of York. The soil of Holderness is gene- 
 rally stony, that of the western plain stony also, with interventions of 
 sand and gravel. The soil of the wolds is thinner and lighter. These 
 characteristics influence the customs of the waygoing crop. On the 
 stronger soils in former days (in which these customs originated) the 
 three-course system of cropping prevailed, and so it followed that one- 
 third of the arable was assigned to the outgoer. In the wolds the 
 Norfolk or four-course system was introduced upon their inclosure and 
 cultivation, and therefore one-fourth of the arable portion of the farm 
 is the waygoing crop. This crop is either sown after rape, turnips, or 
 seeds, depastured the summer previous. The outgoing tenant sows 
 wheat, barley, oats, &c., as the case may require, and he leaves the 
 crop at a valuation, to be taken l^y the incoming tenant, who has to pay 
 the amount of this valuation, deducting the average rent per acre of the 
 farm upon whicli the waygoing crop has grown, which is called the on- 
 staud, also deducting the expense for inning and outing, Avhich is 
 reaping, thrashing, delivering, stacking, and every other expense attend- 
 ing the bringing the corn to market ; as well as one year's parochial 
 taxes for that part of the land upon which the waygoing crop is grown. 
 The incoming tenant gets the straw and the eatage thereof ; but he has 
 to allow the ofpgoing tenant Gs. or 7s. per acre, or something of that 
 sort, for the eatage of the straw. 
 
 Three parts out of four of the dung belong to the land. The out- 
 going tenant in the absence of covenants has no compensation for the 
 purchase of artificial manure, or artificial food for stock, nor for drain- 
 ing or chalking the land. The chalking and marling is done by the 
 tenant at his own risk. The tenant does nothing but keep the build- 
 ings in tenantable repair, and the same with respect to the fences and 
 gates. All the materials belong to the landlord ; the painting, the 
 mending of the fences, and the repairing of the gates, belong to the 
 tenant ; but if any new gates are wanted, the landlord generally finds 
 them. As to the new roofs, the agi'eement says the tenant is to keep 
 the buildings in repair ; main walls, main timber, and damage by fire 
 and tempest, only excepted. Of late years there has been some compen- 
 sation introduced into the agreements; it was not so formerly; it is only 
 within the last few years that it has been the custom to feed with oil- 
 
 D 2
 
 36 YOEKSHIRE— NOKTH KlDlNG. 
 
 cake ; since that custom has come in, tlie practice has been gradually 
 introduced of allowing compensation for a small part of the oilcake that 
 has been used in the last two years. It is very usual to make allowance 
 for cake on the wolds, though it can hardly be called the custom of the 
 East Riding. If a question should arise upon the quitting of a farm, and 
 reference should have to be made to the custom, it would hardly allow 
 compensation for the use of cake. Scarcely any compensation clause"" 
 has been introduced into the agreements, except as to oilcake. Bones 
 are extensively used, but they are not allowed for, except in the 
 Avaygoing crop ; the tenant has the power of taking the crop where 
 it has been boned the year before, and he gets his allowance for 
 bones by selecting that part of the farm from which he takes his way- 
 going crop. 
 
 Yorlcsliirc — JVarfh Riding. — The tenants of a great portion of this 
 extensive riding liaA'e no leases. On many estates they are simply 
 tenants from year to year, without even written agreements. A cus- 
 tomary regulation, that no two white crops are to be grown in succes- 
 sion, that no straw is to be sold off' the farm, and that the tenant shall 
 leave as he entered, comprises all the conditions between the parties. 
 There are no stipulations as to tenant-right or unexhausted improve- 
 ments ; in fact, such covenants would be almost a dead letter, as 
 changes are rare, and it would be easy to point out tenants on many 
 estates whose fathers and grandi'athers before them held the same farm, 
 and under the same unwritten agreements. Upon the large properties 
 there is in almost every case some peculiarity as to the times of entry, 
 modes of cropping, &c., and hence it would be impossible to give any 
 one general rule. Most frequently, perhaps, the entry on arable land 
 for fallow or spring crops is on February 2nd (Candlemas day) ; and t n 
 the rest of the arable land at the separation of the awaygoing crop ; 
 pasture land on April Gth ; and the dwelling-house, offices, and meadow 
 land on May 13th. The outgoing tenant has a right to one-third of 
 the arable land on which to grow an awaygoing crop, and on some 
 estates he pays what is called an onstand for his awaygoing crop, which 
 is occasionally the average rate per acre of the rent of the farm, but is 
 more frequently a fixed sum of Gs. M. per acre. In the latter case the 
 outgoing tenant has generally the right of consuming the straw of his 
 awaygoing crop on the premises. Sometimes, however, the outgoing 
 tenant pays no onstand for his awaygoing crop, but leaves the straw, as 
 soon as it is thrashed, for the use of the incoming tenant without 
 purchase. The manure on the farm belongs to the outgoing tenant up 
 to February 8th, for his use on his awaygoing crop ; whatever remains
 
 YORKSHIRE — WEST RIDING. 37 
 
 on the farm, or is made there after February 8th, belongs to the in- 
 coming tenant without purchase. The DulvC of Leeds, since 18-48, 
 has inserted a clause in his agreements to the effect that the incoming 
 tenant should pay on entry a reasonable price for all manure found 
 on the farm made from the previous year's crop. In taking his a^^vay- 
 going ci'op the outgoing tenant is obliged to take it upon — 1st, naked 
 fallow ; 2nd, turnips half-eaten on ; and, 3rd, clover ley. A great 
 extent of drainage has been effected in this riding within the last 
 fifteen years, partly at the joint expense of landlord and tenant, the 
 former finding tiles, and the latter being at the rest of the expense ; 
 and partly by the landlord finding the money, and charging such per- 
 centage as may be agreed on ; but chiefly under the operation of the 
 drainage loan acts. In the latter case the tenant frequently leads the 
 materials without charge, and pays as additional rent the Government 
 charge of G|- per cent, on the money expended. The ordinary offices on 
 the farm are usually kept up at the landlord's cost, the tenant finding 
 carriage of materials. 
 
 Yorlcshire — Wed Ei'dhig. — The tenant-right is heavier than in Lin- 
 colnshire in the tillages and half tillages. They get paid for whatever 
 they have done in their ftillow year, as well as a year's rent and rates 
 and manure. Then they go to a second year, and have half that 
 allowance. The tillage is the north-country term for what is called in 
 the south an allowance for working fallows. That applies to all land 
 alike, for so many ploughings and harrowings in order to clean the 
 land. The West Eiding of Yorkshire is the larger portion of York- 
 shire, and its system extends partly into Nottinghamshire, and also into 
 part of Derbyshire, though it is a very injurious one to the incoming 
 tenant and to the estate, as regards the awaygoiug crops and the half 
 tillages. One-fifth of the farm should be in grass, and the remaining 
 four-fifths are farmed in the four-course shift of husbandry. The 
 allowances are : First course — Summer, turnip, potato, or rape fallows ; 
 on these are allowed one year's rent and taxes, the dressings of the 
 fallows, with manure, and all other tillages purchased, deducting for 
 the vegetable crops, and the seed and labour for the corn sown as a 
 first crop. Second course — Seeds, or pea or bean stubble, called half- 
 tillage land, for which are allowed the dressings, half the rent and 
 taxes, half value of manure, three-fourths of bone tillage, one-third of 
 guano or other light artificial tillage, less one-half the amount of last 
 year's deduction for vegetable crop. Third course— Wheat on ley, or 
 on pea or bean stubbles ; the fidl value of the crop is allowed, deduct- 
 ing one year's rent and taxes ; however, in some instances only the seed
 
 38 NOrtTH WALES. 
 
 and liiboiu- of the last crop arc allowed ; but this depends upon whether 
 the land is " old inclosnre," " field," or lands on " the commons of the 
 coiinty." Fourth course— Fallow ; here the ploughings and dressings 
 are all allowed ; but if dressed at Michaelmas, nothing is allowed in tlie 
 following spring for manure made from the stubbles or refuse. The 
 valuation on the premises comprises generally one year's manure, which 
 is lying unspread, and the value of all fodder not consumed on quitting ; 
 and the fixtures in the house and buildings according to entry. Draiu- 
 ac^e is permitted and compensated for by special agreement. 
 
 NORTH WALES. 
 
 Tenant-right cannot be said to exist in North Wales. Generally 
 speaking, all farms and lands are held under a yearly tenancy, deter- 
 minable either upon the part of the landlord or the . tenant, by six 
 months' notice to quit. The time of entering upon farms varies in 
 different parts of Xorth Wales ; but the most general and common 
 custom is for the incoming tenant to take possession of the lands upon 
 the 30th of November, and of the house, out-buildings, and boozy 
 pasture (being a single field near the house reserved for the purpose of 
 turning the cattle in, for exercise and to water during the winter) upon 
 the first of May. The first half-year's rent becomes payable upon the 
 25th March intervening between these days, and is therefore somewhat 
 in the nature of a fore-hand rent, of which the tenant has the benefit 
 upon leaving the farm. In the Island of Anglesea it has been attempted 
 to establish a custom of Tenant-right. This has been done by the 
 tenants erecting houses and buildings upon their lands at their own 
 expense, and claiming in consequence either an equitable right for 
 themselves or successors to stay upon the farm, or compensation in 
 respect of their improvements. Buildings erected under these circum- 
 stances being generally of an inferior character, it has become the 
 practice in some of the agreements used in the Island to restrict the 
 tenants from erecting buildings without the sanction of their land- 
 lords. Upon the change of tenancy no division of crops takes place (as 
 in England), between the offgoing and incoming tenant, inasmuch as 
 the offgoing tenant has reaped all his crops before the tenancy of the 
 land expires, and the incoming tenant sows in the autumn the crops he 
 is to reap in the ensuing summer, and in respect of which he pays a 
 half-year's rent upon the 25th of March. Such a thing as an allowance 
 in respect of unexhausted improvements is almost unknown in North
 
 SOUTH WALES — BRECONSHIRE, CARDIGANSHIRE. 39 
 
 Wales. Agriculture is altogether in a backward state. Old hedgerows 
 are seldom removed, and artificial manures are rarely used. Draining 
 is very much required in places, and whatever progress is made in this 
 respect is principally effected cither by the landlords themselves, or 
 with the aid of the Drainage Commissioners. 
 
 SOUTH WALES. 
 
 Breconshirc. — In this county the holdings commence almost entirely 
 at Michaelmas. All the land is retained by the outgoing tenant, with 
 the exception of one field, until St. Andrew's-day (November 30th), 
 when the whole, except such boozy pasture field and the turnips and 
 green crops, are given up to the incoming tenant. The latter are 
 retained by the outgoing tenant till March, when the incoming tenant 
 enters to sow his Lent grain, but the boozy pasture is given up to the 
 incoming tenant on the 1st of May. All buildings at the homestead, 
 with the labourers' cottages, &c., are retained by the outgoing tenant 
 till the 1st of May, but access to the kitchen and one sleeping-room is 
 granted to the incoming tenant, together with a stable, and a place for 
 his horse-gearing. The wheat has to be sown by the 29 th September, 
 unless leave for further time has been obtained from the incoming 
 tenant, Avho is entitled to one-fourth of the produce on fallow, and one- 
 half from stubble or swarth. In Llanfigan the outgoing tenant has 
 no right to the turnips or green crops after November 30th (unless 
 they are previously taken from the field and stacked), except by con- 
 sent, which is usually given, as is also permission to sow wheat after 
 September 29 th. 
 
 Gardigamhire. — The usual period of entry upon farms is Michaelmas, 
 and the holding from year to year. Leases for one or two lives arc not 
 uncommon, also for seven, fourteen, or twenty-one years ; but the leases 
 for lives are not so general as they formerly were. The outgoing tenant 
 has nothing to do with the incoming ; but each settles his claim with 
 the landlord. If a landlord gives a tenant notice to quit, he has to 
 pay him for all necessary improvements on buildings, made during the 
 tenancy, and for all draining if properly executed. The outgoing tenant 
 quits the farm at Michaelmas. If he has carted lime on the farm, or 
 left any farmyard manure, or has sown rye-grass and cloverseed, &c., 
 the new tenant has to pay for them ; and also for half the value of the
 
 40 CARMARTHENSHIRE, EAST AND WEST. 
 
 lime which has been carted and spread upon the farm during the pre- 
 ceding year, and produced one crop. 
 
 Carmarthensliire {East). — Tlie usual period of entry is at Micliaelmas, 
 and the holdings are fi'oni year to year. Leases are uncommon, and 
 when granted, rarely exceed twenty-one years, though they run as high 
 as sixty. Where land is to be embanked from the sea, or reclaimed at 
 a great expense, leases have been granted for ninctj'-niue years. It is 
 not the custom for the outgoing tenant to receive any remuneration 
 from his successor for improvements made on the farm ; and even if he 
 has expended money on draining or farm buildings, &c., he is veiy 
 rarely remunerated by his landlord. The outgoing tenant almost in- 
 variably disposes of his crops by public auction, and very seldom by 
 valuation to the incoming tenant: sometimes the manure is disposed of 
 the same way, unless there happens to be (which is very seldom) a 
 special agreement to leave it on the land. ]>y the custom, the outgoing 
 tenant is paid for all the manure that remains unused, also for the lime 
 and manure on summer fallows, as well as for the ploughings and har- 
 rowings of the latter, for the clover and grass-seeds sown with the spring 
 corn, and mostly for part of the manure and lime and the wheat crop, 
 and any ungrazed aftermath. 
 
 Carmurtlicn shire {West). — The entry is generally at Michaelmas, but 
 sometimes at Lady-day. The usual holdings are from year to year. 
 Leases, as a rule, are uncommon; the few granted are chiefly for lives: 
 those for a term of years are very rare. The outgoing tenant receives 
 some remuneration from his successor for improvements which have 
 been recently made. The landlord allows him remuneration for the 
 outlay on recently-erected buildings, and draining ; but very little of 
 the latter is done. The incoming tenant has to pay for the manure 
 and lime on the farm ; he has also to pay for seeds, clover, and rye- 
 grass, sown the preceding spring by the outgoing tenant. If the latter 
 removes to another farm, he takes the crops with him ; if lie does not, 
 the usual custom is for him to have a sale by auction of all his farming 
 stock and crop on the holding which he is about to leave, unless there 
 is a prohibition in his agreement against his taking away the straw. 
 In the latter case, the landlord of the incoming tenant has to pay for 
 the crop, and two valuers are appointed. 
 
 Glamorganshire. — The tenure of a seven or fourteen years' lease is 
 pretty common, and the time of entry respectively on the land and 
 house, in the southern districts, arc Lady-day and May-day ; and in
 
 GLAMORGANSHIPvE. 41 
 
 the other district?, Candlemas and May-day. The landlord keeps in 
 repair all the buildings on the farm, the tenant doing the haulage of 
 materials for such repairs, and furnishing good wheat straw for thatch- 
 ing, if required, without any compensation. If the landlord erects any 
 new buildings, or does any draining, five per cent, is charged on such 
 outlay. In the eastern districts (where the holdings are principally 
 from year to year, and if by lease, twenty-one years), a form of lease is 
 becoming very prevalent, which stipulates that the tenant shall not at 
 any time sow more than one quarter of the arable land with wheat, and 
 one quarter with other straw crops, nor take more than two straw crops 
 from the same land during any four years of tenancy ; and also lays 
 down strictly the allowance to the tenant on quitting. All the manure, 
 straw or stubble unconsumed on the farm, is left for the landlord or 
 the incoming tenant without compensation. iWi the unconsumed hay 
 is left, and a certain number of tons are paid for by the landlord or in- 
 coming tenant at a consuming price, and the remainder left on the 
 premises without compensation. In the last year of the tenancy, the 
 tenant is bound to sow one-fourth of the arable land with barley, and 
 to suffer the landlord or the incoming tenant to sow clover or other 
 seeds on the same. He is also bound to sow one-fourth part of the 
 arable land in the same year with turnips. The landlord or the in- 
 coming tenant pays for the crop of turnips thus raised, and the value 
 of the same as well as the hay is ascertained, by two valuers, and an 
 umpire if necessary. It is not usual to make the tenants any allowances 
 for improvements, unless there be an agreement to that effect. They 
 cannot claim remuneration for draining or farm buildings, unless they 
 have been done with the consent of the landlord, and on an understand- 
 ing that they are to be allowed. It can hardly be said that an estab- 
 lished custom prevails between incoming and outgoing tenants ; but it 
 is usually agi-eed that if the outgoing tenant has properly fallowed the 
 land, and not taken a crop from it during the last year of his tenancy, 
 the year's rent and taxes, with other outgoings, cost of seeds, sowing, 
 &c., shall be aUowed. It is also usual where lime has been spread on 
 land and only one crop taken, to allow one-half of the value of such 
 lime at the kiln. Where clover seed has been sown with the barley 
 crop in the last year, the expense of sowing it is allowed, as well as 
 that of ploughing up stubbles, or any necessary act of cultivation con- 
 ducive to a future crop. 
 
 Glamorganshire {West). — There is no general custom as to the period 
 of entry on farms : some commence at Michaelmas, some at Lady-da}'. 
 Leases are rather the exception j those at present in existence are
 
 43 PEMBEOKESHIEE. 
 
 cliiefly the remnants of the old system of leases for three lives, at a 
 nominal or at a verv low fine. As the lives fall in, the farms are 
 nsnally re-let at rack-rent, and subject to a six months' notice to 
 quit. As a rule the tenants make no improvements, and can there- 
 fore claim nothing at leaving. The old class of tenants with j)rofit- 
 able leases merely seem to regard their leases as a security against 
 all modern improvements, and upon the expiration of the lease the 
 premises are generally found to be ruinous, and the land in as bad a 
 condition as possible. The rack-rent tenants naturally expect every- 
 thing in the way of draining or building to be done by the landlord ; in 
 the rare cases where a tenant lays out money in improvements, the 
 landlord allo^^■s him for them, but there is no custom upon this point. 
 The tenants have seldom sufficient capital for the ordinary working ex- 
 penses and proper stocking of the farm ; all improvements by them are, 
 therefore, totally out of the question. Tiie custom is for the outgoing 
 tenant to impoverish the land by a succession of straw crops as long as 
 his landlord will allow him to do so, and when the farm is thoroughly 
 run out, he gives notice to quit. Before leaving, he has a sale of all 
 his stock, crop and manure, doAvn to tlie mud in the lanes, which he 
 usually scrapes up to make the muck heap larger. The sale is by 
 auction, with six or nine months' credit. The only allowance occasion- 
 ally made to an outgoing tenant is for the lime, which, by the custom of 
 the country, must be paid full value for, if put on the same year, and 
 half value if put on the year previous. However, several large land- 
 owners are beginning to establish a better state of things, having de- 
 termined to let their farms upon yearly agreements, with proper cove- 
 nants as to cultivation, with a view to prevent the overcropping and sale 
 of manure at the expiration of the tenancy. Some have begun to pur- 
 chase all the straw and manure of the outgoing tenant, and make the 
 incoming tenant a present of it on condition that he signs an agree- 
 ment. This involves a considerable outlay on the part of the landlord, 
 but if constantly and universally adopted, will end by entirely putting a 
 stop to the credit sales, which are a most serious evil, and will in some 
 measure compensate for the want of capital on the part of the incoming 
 tenant, who will find his farm in good condition, and will be merely 
 bound under heavy penalties to leave it as good as he found it. 
 
 Pemlrolcesliire. — The general entry on farms is at Michaelmas, and 
 the holdings are mostly by the year. Leases arc not so common as 
 they were some years ago. Tliere are a few for lives, and some for 
 seven, fourteen, and twenty-one years. Any remuneration which the 
 outgoing tenant receives from his landlord for building or draining on
 
 THE AGrJCULTURAL HOLDINGS ACT. 43 
 
 qiiiiting his fann, is guided entirely by tlic agreement wliicli is made 
 between them on entry. The incoming tenant pays for the manure 
 left on the farm; sometimes the crops are taken at a valuation, and 
 if they cannot agree, the outgoing tenant thrashes the corn, leaving 
 the straw on the farm. The turnip crops are generally taken by valua- 
 tion. Where tlicre is a fallow, so much per acre is charged for work- 
 ing it ; and that, as well as clover-seeds sown, are paid for by the in- 
 coming tenant. 
 
 Radnorshire. — In this county, the smallest in South Wales — so 
 small, indeed, as to have been styled from the Bench, " that little 
 sheep-walk, which calls itself a county," — no established tenant-right 
 can be said to exist, as the customs widely differ, even in neighbouring 
 parishes. A very large portion of the north-west side of the county 
 consists of open mountain, and is farmed as a sheep-walk. In this 
 district an almost feudal relation exists between landlord and tenant : 
 the landlord is looked upon as the owner of the flocks, and the tenant 
 receives a certain proportion of the profits in return for his labour and 
 attendance. In the more cultivated districts the incoming tenant 
 usually takes possession of the land at Lady-day; but the outgoing 
 tenant does not quit the premises till February ; he, however, gives up 
 possession of all the land, with the exception of one field sufficient to 
 keep a cow. The country on the east side, in the neighbourhood of 
 Knighton, is very fertile, and the Herefordshire system of farming is 
 prevalent. In the more remote districts leases are not uncommon, 
 those for lives preponderating over those for a term of years. 
 
 THE AGRICULTURAL HOLDINGS ACT. 
 
 This Act, .38 & 39 Vict. c. 92, was passed for the protection of 
 tenant farmers in England, and with the intention of providing a 
 remedy for a supposed grievance under which the tenant farmers had 
 long laboured. 
 
 Leases in this country are no doubt the exception and not the rule, 
 and unless a tenant had a lease he was liable under the old system to 
 be turned out of his occupation at six months' notice, which notice 
 would probably expire at Michaelmas, without receiving any com- 
 pensation for his unexhausted improvements. These improvements 
 might consist of permanent buildings, drainage, value of unexhausted 
 manures, etc., and it was argued that no tenant could be expected to
 
 4i THE AGRICULTURAL HOLDINGS ACT. 
 
 invest his capital in improvements of this character if lie were hablc to 
 be turned out of his occupation at six months' notice without any 
 compensation for the money which he had expended upon his landlord's 
 property. This act came into operation on the llth February, 167G, 
 and does not extend to either Scotland or Ireland. The 4th sec. 
 interprets the terms used in the Act: the word "landlord" bears a wide 
 interpretation, viz., " the person for the time being entitled to possession 
 of knd subject to a contract of tenancy, or entitled to receipt of rent 
 reserved by a contract of tenancy, whatever be the extent of his interest, 
 anil although the land or his interest therein is incumbered or charged 
 by himself or his settlor, or otherwise, to any extent ; the party to a 
 conti-act of tenancy under which land is actually occupied being alone 
 deemed to be the landlord in relation to the actual occupier : it also 
 includes the agent authorised in writing to act under this Act generally, 
 or for any special purpose, and the executors, administrators, assigns, 
 husband, guardian, committee of the estate, or trustees in bankruptcy 
 of the landlord. The interpretation of the " tenant " is not different 
 from that usually held. The 5th sec. gives a list of improvements 
 which are comprised in the Act. They are divided into three classes. 
 The first comprises : 
 
 Drainage of land. 
 
 Erection or enlargement of buildings. 
 
 Laying down permanent pasture. 
 
 flaking and planting osier beds. 
 
 Making of water meadows or works of irrigation. 
 
 ]\Iaking of gardens. 
 
 Making or improvement of roads or bridges. 
 
 Making or improving of watercourses, ponds, walls, or reservoirs, 
 or of works for sn[)ply of water for agricultural or domestic purposes. 
 
 Marking of fences. 
 
 Planting of hops. 
 
 Planting of orchards. 
 
 Pweclaiming of waste lands. 
 
 "Warping of land. 
 These are called improvements of the first class, and the tenant is 
 entitled to compensation up to the end of twenty years from the date of 
 outlay. The amount of the tenant's compensation in this class of 
 improvements is the sum laid out by the tenant on the improvement, 
 with a deduction of a proportionate part thereof for each year while the 
 tenancy endures after the year of tenancy in which the outlay is made, 
 and while the improvement continues, with this proviso, that where the 
 landlord was not, at the time of the consent given to the execution of
 
 THE AGRICULTUEAL HOLDINGS ACT. 45 
 
 the improvement, absolute owner of the liolding for his own benefit, 
 the amount of the compensation shall not exceed a capital sum, fairly 
 representing the addition which the improvement, as far as it continues 
 unexhausted at the determination of the tenancy, then makes to the 
 letting value of the holding. 
 
 It is most important to notice that a tenant shall not be entitled to 
 compensation in respect of improvements of the first class unless he 
 has received the landlord's consent in writing. 
 
 Further a sura reasonably necessary to be expended for the purpose 
 of putting an improvement into tenantable repair or good condition 
 shall be deducted from the amount payable to the tenant. 
 
 It will be observed that the words " tenantable repair " or " good 
 condition " are used synonymously. 
 
 The former certainly implies much less than the latter, and it is 
 diificult to see why the words " good condition " were put in as an 
 alternative. A place may be in tenantable repair, but not in good 
 condition, and certainly a place which is in good condition is in 
 tenantable repair. 
 
 Improvements of the second class consist of — 
 Boning with undissolved bones. 
 Chalking of land. 
 Clay burning. 
 Claying of land. 
 Liming of land. 
 Marling of land. 
 Improvements of this class are to be deemed unexhausted for seven 
 years, and the amount of compensation shall be the sum properly laid 
 out by the tenant on the improvement, with a deduction of a propor- 
 tionate part thereof for each year while the tenancy lasts after the year 
 of tenancy in which the outlay is made, and while the improvement 
 continues unexhausted. A tenant shall not be entitled to compensation 
 in this class unless he has given notice to the landlord in writing of his 
 intention to make the improvement, not more than forty-two or not less 
 than seven days before beginning to execute it, nor where it is executed 
 after the tenant has given or received notice to quit, without the 
 previous consent in writing of the landlord. A distinction is drawn 
 between improvements of the first and second class in this respect, that 
 in the former no compensation will be given under this Act unless the 
 consent in writing of the landlord has been first obtained, whereas in 
 the latter, the tenant has power to make the improvements and to 
 demand compensation provided he has given the requisite notice to the 
 landlord unless he, the tenant, be under notice to quit.
 
 46 THE AGRICULTUEAL HOLDINGS ACT. 
 
 Improvemcuts of the tliird class consist of — 
 Application to land of purchased artificial or other purchased manure. 
 Consumiition on the holding- by cattle, shee.}) or pigs, of cake or 
 other feeding stuff not produced on the holding. 
 
 Improvements of the third class are deemed unexhausted to the end 
 of two years. 
 
 It is somewhat remarkable that there is no distinction between 
 artificial and other manures, it having been held usually that the 
 former are exhausted in one year, -while the farmyard manure is 
 supposed to benefit the land for a much longer period. 
 
 The tenant is not entitled to compensation in respect of an improve- 
 ment in this class where a crop of " corn, potatoes, hay or seed, or any 
 other exhausting crop" has been taken since the execution of the 
 improvement. 
 
 The "words " other exhausting crop " are very vague, but would 
 probabl}' include peas, beans, vetches, flax, etc. 
 
 By sec. 14 the tenant is not entitled to compensation in respect of 
 an improvement in the third class, consisting in the consumption of 
 cake or other feeding stufiP, where, under the custom of the country or 
 an agreement, he is entitled to claim payment from the landlord or 
 incoming tenant in respect of the additional value given by that con- 
 sumption to the manure left on the holding at the determination of the 
 tenancy. 
 
 A custom has obtained in some districts to allow the outgoing tenant 
 one half the value of corn consumed on the holding during the last 
 year of his tenancy where no crop has been taken, but it seems that he 
 has the option of taking advantage of the Act or of seeking compensa- 
 tion under the custom of the country. 
 
 Bee. 1') restricts the amount of compensation which can be allotted 
 under this class to the average amount of the tenant's outlay for like 
 purposes during the previous three years of his tenancy, or other less 
 number of years Ibr which his tenancy has endured, and the value of the 
 manure which would have been made by the consumption of any hay, 
 green crops, etc., sold ofP within the last two years of the tenancy, except 
 in cases where a proper return has been made in the shape of manure. 
 
 By sec. IG, the landlord may deduct irom the tenant's compensation 
 ■whatever is or may be due during his occupation for taxes, rates, the 
 tithe-rent-charge, rent, or landlord's compensation. The landlord, by 
 sec. 17, may also set off whatever sum he has contributed towards the 
 improvements. 
 
 Sees. 18 and 19 provide for compensation for breach of covenant by 
 either party.
 
 THE AGRTCULTUr.AL HOLDINGS ACT. 47 
 
 Sees. 20—44 provide for the method of procedure for tlie recovery of 
 cUiiins and counter-clfiims under t1ic Act. 
 
 Firstly, the tenant must give one month's notice to tlie landlord that 
 he intends to make a claim under the Act, and the landlord may at any 
 time after receipt of notice of claim before determination of the tenancy 
 or fourteen days thereafter, give notice of counter-claim. The parti- 
 culars of the claim and counter-claim, as far as they reasonably can, arc 
 to be stated in the notices. 
 
 It is difficult to see why the words " as far as they reasonably can " 
 are inserted. If a tenant intends to seek compensation under the Act, 
 he ought to keep an accurate account in detail of what he has expended 
 in this respect, and the qualification added would seem to encourage 
 parties to make additional demands at the trial. 
 
 The landlord and his tenant may settle their differences themselves ; 
 if not, they must go to a reference. 
 
 If the parties agree, they may appoint jointly a referee : if not, each 
 shall appoint a referee ; and the two referees before they enter on the 
 reference shall appoint an umpire : if they fail to appoint within fourteen 
 days the County Court shall appoint an umpire. But in cases where 
 two referees are appointed, either party may, on giving notice to the 
 other in writing, require that the umpire shall be appointed either by 
 the Inclosure Commissioners or the County Court. The registrar may, 
 by consent of the parties, exercise the powers of the Court. 
 
 The same powers are given to the referee, referees, or umpire as are 
 usually given to an arbitrator as regards administering oaths to wit- 
 nesses, production of documents, *&c. 
 
 A single referee must make his award within twenty-eiglit days after 
 his appointment ; but two referees have power to extend their time, pro- 
 vided it be done jointly in writing, up to forty-nine days. If two referees 
 fail to make their award within the appointed time, their authority 
 ceases, and the matters then stand referred to the umpire, who must 
 make his award within twenty-eight days of his appointment as arbitrator, 
 or within such time as the registrar of the County Court may appoint. 
 
 The award is not to award a sum generally for compensation, but 
 must specify in detail the class under which each sum is awarded and 
 the amount of each improvement, together with the time at which it 
 was expended. 
 
 The costs of the reference are to be paid by the parties in such 
 proportion as the referees or umpire shall direct. 
 
 In cases where the amount claimed exceeds £50 either party may 
 within seven days after delivery of the award, appeal to the Judge of 
 the County Coui't, on the grounds—
 
 48 THE AGRICULTUPvAL HOLDINGS ACT. 
 
 1. That the award is invalid: 
 
 2. That compensation has been awarded in respect of matters for 
 ■which the party claiming vras not entitled to compensation: or 
 
 3. That compensation has not been awarded in matters for which the 
 party claiminii' was entitled to compensation, and the Jndge may remit 
 the whole or part of the case to be reheard. 
 
 The decision of the County Court Judge shall be final, save that at 
 the request of either party he shall state a special case on a question of 
 law, for the judgment of the High Court of Justice. 
 
 Any money agreed or awarded to be paid under this Act siiall be 
 recoverable as other money under the ordinary jurisdiction of the 
 County Court. 
 
 The County Court has power to appoint a guardian for landlord or 
 tenant in the case of either being an infant or of unsound mind : it may 
 also appoint a person to act as the next friend of a married woman in 
 certain cases. 
 
 By sec. 42, a landlord, by an order of the County Court, may charge 
 the holding with the amount of compensation he has paid to the tenant, 
 provided that, if he be not absolute owner of the holding for his own 
 benefit, no instalment or interest shall be made payable after the time 
 when the improvement in respect whereof compensation is paid, will for 
 the purposes of the Act be taken to be exhausted. 
 
 By sees. 45 — 47, the Act applies to lands belonging to Her Majesty 
 the Queen, in right of the Crown and the Duchy of Lancaster, and to 
 land belonging to the Duchy of Cornwall. 
 
 By sec. 48, tlie powers of tliis Act cannot be exercised by an arch- 
 bishop or bishop in respect of lands assigned "or secured as the endow- 
 ment of a see without the approval in writing of the Ecclesiastical 
 Commissioners. 
 
 Nor, by sec. 49, in the case of an incumbent of an ecclesiastical 
 benefice without the written approval of the Governors of Queen Anne's 
 Bounty, 
 
 Nor, by sec. 50, in the case of trustees for ecclesiastical or charitable 
 purposes without the written approval of the Charity Commissioners. 
 
 Sec. 51 is very important, seeing that by it a year's notice to quit is 
 necessary instead of half a year. 
 
 Sec. 52 legislates for cases in which a landlord gives notice to his 
 tenant to quit with the object of using the land for certain purposes, 
 viz. : 
 
 (].) I'^i'cction of farm-labourers' cottages ; 
 
 (2.) Providing gardens for farm-labourers; 
 
 (3.) Allotments for labourers ;
 
 AGRICULTURAL HOLDINGS ACT. 4'J 
 
 (4.) Plantations ; 
 
 (5.) Mines; 
 
 (G.) Briclv-earth, gravel, or sand ; 
 
 (7.) Watercourses or reservoirs ; 
 
 (8.) Eoads, tramways, &c. 
 
 In all these cases the provisions of the Act apply as regards compen- 
 sation, as on determination of a tenancy of an entire holding, and the 
 tenant will be entitled to a proportionate redaction of rent for the land 
 taken, and also in respect of any depreciation of the value to him of tl)e 
 residue of the holding by the withdrawal of that land or liy the use to 
 be made thereof. 
 
 Sec. 53 relates to fixtures. 
 
 By sec. 54, nothing in the Act shall prevent a landlord and tenant 
 from making any agreement they may think fit ; but by sec. 55 they 
 may adopt certain parts of the Act, and not the whole. 
 
 By sec. 50, this Act will apply to all future tenancies, unless the 
 parties agree in uniting that this Act shall not apply to their contract. 
 
 And by sec. 57, either landlord or tenant in any contract of tenancy 
 current at the commencement of the Act might, by giving notice to the 
 other within two months after the commencement of the Act, viz., 
 February 14, 1.S76, become exempt from the provisions of the Act ; and 
 the Act does not apply to holdings of less than two acres. 
 
 It will be observed that the adoption of the Act is not compulsory, 
 and that it does not interfere with the freedom of contract between 
 landlord and tenant in any way. It seems, moreover, that the process 
 of settling a heavy case is both expensive and long : certain it is at any 
 rate that the Act has not at present been adopted to any extent.
 
 50 INTERESTS IN LAND. SALE OF HOPS. 
 
 CHAPTER IT. 
 
 INTERESTS IN LAND. 
 
 T7here anything is done which substantially amonnts to a sale or 
 parting with an interest in land, the contract is for or relating to the 
 sale of an interest in or concerning lands, tenements, or hereditaments, 
 within the meaning of the 29 Car. II. c. 3, s. 4. 
 
 The case of Waddt/i//fon v. Brisiowe, where a written agreement was 
 made in November, 1799, for all the hops which should be grown in the 
 ensuing year, upon a given number of acres of land, was long regarded 
 as a leading one on the subject of root crops, conferring an interest in 
 land. The hops which were the subject of the contract were not then in 
 existence ; there was nothing but the root of the plant (from which the 
 bine which was to flower and produce the hop, w^ould shoot out in the 
 following sj)ring), and the purchaser was not to have that. However, 
 after the lapse of a quarter of a century, Mr. Justice Bayley, when 
 delivering judgment in Evans v. Roherts, passed it, among several 
 others of the same class, under review, and showed that it could not 
 be said to have been decided on that ground at all. " The question in 
 that case," said his lordship, " was not whether the agreement, which 
 was in writing, was for an interest in land, but whether it ought to 
 have been stamped. It was contended that it was within the exception 
 in 23 Geo. III. c. 58, s. 4, an agreement made for and relating to the 
 Bale of goods, wares, and merchandise. All the judges concm-red in the 
 judgment that the contract in that case was not such an agreement ; 
 but Charnbre J. was the only judge who intimated an opinion that the 
 contract gave the vendee an interest in land. He certainly stated that 
 tiic contract gave the vendee an interest in the produce of the whole of 
 that part of the vendor's fiirm whicli consisted of hop grounds." Hence 
 the case hardly deserved to be quoted by Lord Mansfield C.J., as a 
 precedent strictly in point in Emmerson v. Heelis, where the Court of 
 Common Pleas decided that a sale of growing turnips by public auction 
 no time being stipulated for their removal, and the degree of their 
 maturity not being positively found, was a sale of an interest in land 
 withm 29 Car. 11. c. 3, s. 4, and must be in writing, " because we do
 
 GROWING POTATOES. 51 
 
 not see how it can be distinguished from the case of hops decided in 
 this court." 
 
 In Emmersoii v. Heelis the defendant, by his agent, who was his 
 farming servant, attended at the sale, and being the highest bidder was 
 declared the purchaser of twenty-seven different lots, of fourteen stitches 
 or furrows each, and his name was written in the sale-bill by the 
 auctioneer opposite each particular lot which he had purchased. On 
 this case also Bayleij J. thus commented in Evans v. RoVerts : " It was 
 not necessary to decide the point upon the Statute of Frauds, because 
 there was another point in favour of the plaintiflF, which rendered a 
 decision upon the first question perfectly unnecessary, for the contract 
 being signed by the auctioneer as the agent of the buyer was equally 
 binding, whether it was for a sale of goods and chattels or of an interest 
 in land." Parlce B. also said in allusion to Waddington v. Bristoice, in 
 the course of the argument in Rodwell v. Phillips, " hops are fnidus 
 industriales. That case would now probably be decided differently. 
 The distinction is pointed out in Sainshurij v. MaWieivs." 
 
 The facts in Evans v. Rolerts were as follows : The defendant, on 
 September 25, 1825, agreed by parol with the plaintiff to purchase a 
 cover of potatoes then growing on land of the plaintiff at the price of £5, 
 and the defendant paid \s. earnest. Some dispute arose as to who 
 should raise the potatoes, and the plaintiff agreed to dig them np, 
 the defendant agreeing to come and take them away before the next 
 Christmas ; but in consequence of the price falling from 12s. to 8s. 
 per sack he refused to stand by his bargain. Garroiu B. ruled, in an 
 action of indehitatus assumpsit for a cover of potatoes bargained and 
 sold, that inasmuch as the vendor was to take up the potatoes, it must 
 be considered not as an interest in land within the 4th, but as merely 
 a contract for the sale and delivery of goods and chattels within the 
 meaning of the 17th section of the Statute of Frauds, and the plaintiff 
 had a verdict for £4 19s. The Court of King's Bench refused to 
 enter a nonsuit, and held that this was clearly not an interest in 
 land. 
 
 Bagleg J. said, " The defendant has no right to any possession of the 
 land ; the only thing for which he has bargained is that he shall have 
 the potatoes delivered to him when their growth shall be complete." 
 " In the case of growing potatoes, which are the artificial produce of 
 the land, arising from a particular course of husbandry, they come 
 within the description of emblements, and go, not to the heir, but to 
 the executor, and they may be seized in execution under a writ of fieri 
 facias. That writ goes against the goods and chattels of the party, and 
 therefore whatever the executor would be entitled to take as goods and 
 
 E 2
 
 5i GROWING POTATOES. 
 
 chattels may be seized by the sheriff. Xoay the potatoes in this case 
 might, in my opiuioii, be seized under a writ of fieri facias, and whether 
 at the time of the contract they were in a growing state, or in a ware- 
 house, it seems to me that they are to be considered as what the law 
 designates goods and cliattels. If that be so, then they are not within 
 the provision of the 4th section of the 29 Car. II. c. 3. In the case of 
 ParJcer v. Staniland, the potatoes were clearly considered as goods and 
 chattels, and not amounting to an interest in land. I agree that that 
 case is distinguishable from the present, because there the potatoes had 
 ceased to grow. The case of War/ricJc v. Bruce is distinguishable from 
 this in the same particular ; but I think the reasoning of Lord Mlen- 
 lorouijlt, in the latter case is extremely important in assisting us in 
 coming to a right conclusion when forming a judgment as to the effect 
 of that clause of the Statute of Frauds which speaks of an interest in 
 lands, tenements, or hereditaments. He there says, ' As to the last 
 objection, if this had been a contract conferring an exclusive right to 
 the land for a time, for the ])urpose of making a profit of the growing 
 surface, it would ]:»e a contract for the sale of an interest in or concern- 
 ing lands, and would then fall unquestionably within the range of 
 Croshij V. Wadsworth. But lierc is a contract for the sale of potatoes 
 at so much per acre ; the potatoes are the subject-matter of the sale, 
 and whether at the time of the sale they were covered with earth in a 
 field or in a box, still it was a sale of a mere chattel. It falls therefore 
 within the case of Parlccr v. Staniland, and that disposes of the point 
 on the Statute of Frauds.' It docs not appear that the other judges in 
 giving judgment made any observations upon that point ; but it is 
 clear that my Lord EllmlorouglC s judgment proceeded on the ground 
 that if the contract gave to the vendee no right to the land for the 
 purpose of enabling liim to make a profit of the growing surface, then it 
 was not to be considered as giving him an interest in the land, but 
 merely in a chattel. Now, trying this case by that test, there is nothing 
 but a contract for the sale and delivery at a future period of that which 
 at a future period Avould be in a perfect state as goods and chattels." 
 
 In ParJcer v. Staniland the plaintiff o,wned a two-acre close, which 
 was crojiped with iiotatocs, and agreed with the defendant on November 
 21st, to sell him the potatoes at 4s. Gf7. per sack. The defendant was 
 to get them up himself, and to get them immediatehj, and he employed 
 men on the 2r)th, 2Gtli, and 27lh of the same month, and got 21, 24, 
 and 33 sacks full. On the 4th of December he got 7 sacks more, and 14 
 aljout Ladij-ddjf, the value of which was covered by the money paid 
 into Court. There remained about tliree I'oods of potatoes, which were 
 not dug up, and which were spoilt 1)y the frost j and in an action
 
 (IKOWING POTATOES. 53 
 
 brought to recover the vahie of these, the plahitiff had a verdict. It was 
 objected on behalf of the defendant, that it was an interest in land, and 
 ought to have been in writing ; but BayJcij J. overruled the objection, 
 and the Court unanimously refused to grant a nonsuit. Baijlcy J. : " I 
 do not think that this contract passed an interest in the land, within 
 the meaning of the fourth section of the Statute of Frauds. In the 
 cases of Crosby v. Wadstvorih, and Waddmgton v. Bristowe, the contracts 
 were made for the growing crops of grass and hops, and therefore the 
 purchasers of the crops had an immediate interest in the land, while 
 the crops were growing to maturity before they v/ere gathered : but 
 here the land was considered as a mere warehouse for the potatoes, till 
 the defendant could remove them, which he was to immediately, and 
 therefore / do not ihlnh the case is within the slalute." And jjer Ellcn- 
 horouyh C. J. : " The lessee primce, vesturec may obtain trespass quara 
 dausumf regit, or ejectment for injuries to his possessory right, but this 
 defendant could not have maintained either ; for he had no right to 
 the possession of the close ; he had only an easement, a right to come 
 upon the land for the purpose of taking up and carrying away the 
 potatoes ; but that gave him no interest in the soil. I am not disposed 
 to extend the case of Crosby v. Wadsicorth further, so as to bring such 
 a contract as this within the Statute of Frauds, as passing an interest 
 in land." 
 
 The defendant in War wide v. Bruce on the 12 th of October agreed by 
 parol to sell to the plaintiff (an infant) all the potatoes then growing on 
 3|- acres of his land, at £25 an acre, to be dug u^p by the 2)laintiff, who 
 paid £40 under the agreement. The latter then dug up and carried 
 away part of the potatoes, but was prevented by the defendant from 
 digging and carrying away the residue. It was held that the plaintiflp 
 was entitled to recover for this breach of the contract in part executed 
 by him, and which was for his benefit, and that it was not within the 
 fourth section of the statute. 
 
 Again, in Sainsbury v. Matthews the plaintiff and defendant were at an 
 inn on the 29th of June, and the latter said he had 100 bags of potatoes 
 to sell at 2s. a sack. The plaintiff said he would take them, and it was 
 agreed that he was to hare them at that price at diyging-iq) time, and find 
 diggers. When the potatoes were ripe, the plaintiff sent diggers to take 
 them up, but the defendant refused permission. There was some con- 
 flicting evidence as to whether the agreement had been previously 
 rescinded ; but the plaintiff" had a verdict for £5 10s., and the Court 
 of Exchequer refused a nonsuit. Parlee B. said : " This is a contract 
 for the sale of goods and chattels at a future day, the produce of certain 
 land, and to be taken away at a certain time. It gives no right to the
 
 54 GROWING FRUIT AND TIMBER. 
 
 laud : if a tempest had destroyed the crop in the meantime, and there 
 had been none to deliver, the loss would have clearly fallen upon the 
 defendant. The case is stronger than that of Evans v. Roberts, because 
 here there is only a stipulation to pay so much per sack for the potatoes 
 when delivered: it is only a contract for goods to be sold and delivered." 
 And^w Lord Ahiiujer C.B.: " This was not a contract giving an interest 
 in the land : it is only a contract to sell potatoes at so much a sack on 
 a future day, to be taken up at the expense of the vendee ; he must give 
 notice to the defendant for that purpose, and cannot come upon the land 
 when he pleases." 
 
 In Mod/cell v. PldlUps it was decided that an agreement for the sale 
 of gro/rini/ fruit and vcgetaltcs is an agreement for the sale of an interest 
 in land, within the meaning of the Stamp Act, 55 Geo. III. c. 184, 
 sched. part I., title " Conveyance" and if of the value of £20, requires a 
 stamp. The memorandum of agreement was as follows : 
 
 Memorandum of agreement, this lith day of July, 1840. 
 
 " Thomas Phitlijis agrees to sell to Mr. Rod well all the crops of fruit and 
 vegetables of the upjjcr portion of the garden, from the targe pear 
 trees for the sum of £S0 ; and Lionel Rodwell agrees to buy the 
 same at the aforesaid price, and has paid £1 dep)osii. 
 
 " Witness our hands, " T. P. 
 
 " L. Rr 
 
 Lord Ahinger C.B., said: "There is a great variety of cases, in which a 
 distinction is made between the sale of growing crops and the sale of an 
 interest in land ; and it must be admitted that taking the cases alto- 
 gether, no general rule is laid down in any one of them, that is not 
 contradicted by some other. It is sufficient, however, for us to say, 
 that we think this case ought not to be governed by any of those in 
 ■which it is decided that a sale of growing crops is a sale of goods and 
 chattels. Growing fruit would not pass to an executor, but to the heir; 
 it could not be taken by a tenant for life, or levied in execution under a 
 writ of fieri facias, by the sheriff ; therefore it is distinct from all those 
 cases where the interest would pass not to the heir-at-law, but to some 
 other person. Undoubtedly there is a case, Smith v. Surman, in which 
 it appears that a contract to sett timber growing was lield not to convey 
 any interest in the land ; but that was wdicre the parties contracted to 
 sell the timber at so much per foot, and from tiic nature of that contract 
 it must be taken to have been the same as if the parties had contracted 
 for the sale of timber already felled. In this case there seems to be no 
 doubt that this was a sale of that species of interest in the produce of
 
 GROWING TIMBEPw 55 
 
 lands which has not been excepted by the Stamp Act, and that it is not 
 a sale of goods and merchandise." 
 
 Smith V. Sunnan, which Alder son B. alluded to in the course of the 
 argument of Washhourne v. Burrows, as " in fact a contract to sell 
 timber as a chattel," was an action to recover £17 3s. &d. for 229 feet 
 of ash timber at l.s. Qil. per foot. The plaintiflF, who was the" proprietor 
 of a coppice, had given orders to fell some ash trees. When two of the 
 trees had been already felled, the defendant came to the coppice, and 
 the plaintiflF pointed out to him the remainder, which were numbered 
 from 1 to 14. The defendant said to a bystander he had made a good 
 bargain, and told one of the cutters to tell the other men to cross-cut 
 them fair. When they were cut and measured, the defendant met the 
 measurer, and on hearing that they were measured, offered to sell him 
 the butts (which he alleged he had bought of the plaintiff), and then 
 said, when this was not acceded to, that he would go to the plaintiff's 
 and convert the tops into building-stuflf. He afterwards said that he 
 had bought ten trees only, and that the reason he did not take them was 
 that they were unsound. The timber not having been taken away, tlie 
 plaintiff's attorney wrote him to say that the timber he objected to as 
 faulty and unsound, was " very kind and superior, and a superior 
 marketable article," and that he could have no objection to the mode 
 of cross-cutting, as it was done agreeably to his own direction. The 
 defendant wrote in his answer that he bought the timber from Mr. Smith 
 "/tf he sound and good, which I have some doubts whether it is so or not ; 
 but he promised to make it so, and noiv denies it. When I saw him, he 
 told me I should not have any without all ; so we agreed on these terms, 
 and I expected him to sell it to somebody else." The Court of Queen's 
 Bench held that the contract was not one for the sale of an interest in 
 land within the meaning of the 4th section, but one for the sale of 
 goods, within the 17th. Litlledalc J., said : " I think that the contract 
 in this case was not a contract for the sale of lands, tenements, or here- 
 ditaments, or any interest in or concerning the same within the meaning 
 of the 4th section. Those words in that section relate to contracts 
 (for the sale of the fee-simple, or some interest less than the fee), which 
 give the vendee a right to the use of the land for a specific period. If 
 in this case the contract had been for the sale of the trees, with a 
 specific liberty to the vendee to enter the land to cut them, I think it 
 Avould not have given him an interest in the land, Avithin the meaning 
 of the statute. The object of a party who sells timber is not to give 
 the vendee any interest in his land, but to pass to him an interest in 
 the trees when they become goods and chattels. Here the vendee was 
 to cut the trees himself. His intention clearly was not to give the
 
 56 GROWING UNDERWOOD. 
 
 vendor any property in the trees, until they were cut, and ceased to be 
 part of the freehold."' And per curiam there was no part acceptance or 
 actnal receipt of the broods to satisfy the iTth section, inasmuch as there 
 was nothing to show that the purchaser had divested himself of his right 
 to object to the quality of the goods, or tliat the seller had lost his lien 
 for the price. 
 
 Scorrdl v. Boxall, where it was ruled in the Court of Exchequer that 
 the sale of groiving wider wood to be cut by the purchaser confers an 
 interest in land, was relied on for the defendant in Smith v. Siirman, 
 but was not commented upon in any of the judgments, which were 
 principally directed to show that the contract was one for the sale of 
 goods, wares, and merchandize, within the 17th section of the statute. 
 Hidloclc B., in ScorrcU v. Boxall, refused to recognize as law the 
 opinion of Treljy C.J. and Poicell J. (1 Ld. Raym. 182), that the sale 
 of timber growing upon land may be by 7;«ro?, because it is but a bare 
 chattel, and rested his decision on the principle that trees annexed to 
 the freehold are parcel of the inheritance, and pass with it, while corn 
 and other industrial crops go to the executor, and may be seized under 
 a fi.fa., which was the distinction on which Littledale J.'s judgment 
 was based in Evajis v. Rolcrts. His Lordship also relied- on Teal v. 
 Auiy, where the Court of Common Pleas intimated that the sale of 
 growing ])oles or young trees which the defendants had purchased and 
 afterwards cut and carried away, does confer an interest in land. 
 There, however, it was not necessary to inquire whether the original 
 agreement was in writing, as the poles were taken away and the agree- 
 ment executed, and the plaintiff was nonsuited in consequence of the 
 absence of proof as to what was strictly due. 
 
 Crosly V. Wadsivorth is among the first of the cases which were 
 decided, under the statute, on the question of grass crops. The plaintiff 
 agreed by parol with the defendant, on June C, 1804, for the purchase 
 of a standing crop of moiving grass, then growing in a close of the 
 defentant's at Claypole, for 20gs. It was to be mown and made into 
 hay by the plaintiff, but the parties did not absolutely fix upon any 
 time at or which the mowing was to be begun. JSTo earnest was given, 
 and no note or memorandum signed. The defendant, who kept pos- 
 session of the close, told the plaintiff on the 2nd of July that he should 
 not have the grass, and sold it to another person on the same day for 
 2.5g8. Later in the month, the plaintiff tendered to the defendant 
 20gs., which the latter refused, and then, finding the gate unlocked, 
 entered and cut part of the grass. He was discharged, and the whole 
 of the crop was taken away by the new purchaser. It was held by the 
 Court of King's Bench that the plaintiff had, under the circumstances,
 
 GROWING CROrS. 57 
 
 such a possession of the close though, for a limited purpose, that he 
 might maintain trespass qu. d. freg. against any person entering the 
 close, and taking the grass even with the assent of the owner ; but that 
 this being a contract for the sale of an interest in and concerning land, 
 it was voidable by the 4tli section of the statute if not reduced to 
 writings and might be discharged by parol notice from the owner before 
 any part execution of it. Baylcy J. observed upon this case, in Evans 
 V. Roberts, " The contract was clearly for the sale of an interest in land. 
 There the grass was growing, and the vendee was to mow it, and con- 
 vert it into hay. He had the whole of the vesture of the land, and had 
 the exclusive possession of the soil from the date of the contract, until 
 the period when the grass should be cut and made into hay. Grass 
 growing in a natural state stands on a very different footing from pro- 
 duce which is obtained from the land by artificial means, or by the 
 application of a particular course of husbandry. Grass is the natural 
 growth and produce of the land itself, permanently remaining, not 
 exhausted when once cut, but constantly growing and renewing. It 
 cannot be seized in execution under a fieri facias, as goods and 
 chattels, and on the death of the owner of the laud it goes to the heir, 
 and not to his executor or personal representative." 
 
 Poidter V. KiUimjlmlc, which was alluded to at the close of the plain- 
 tifiTs argument in the above case, had no material application in favour 
 of the plaintiff. There the plaintiff wished to cultivate some pieces of 
 fen land, and agreed verbally to let them to the defendant without rent, 
 the latter to plough, dress, and sow them for two successive crops, and 
 in lieu of rent to allow the plaintiff a moiety of the crops. Yvhile the 
 crops of the second year were in the ground an appraisement of them 
 was taken fur both parties, and the value ascertained ; and as the 
 defendant refused to pay a moiety of the value, this action was brought. 
 It was held by the Court of Common Pleas that the plaintiff might 
 well declare in indeMatus assumimt for a moiety of the value of the 
 crop sold, without stating the special agreement, as that was executed 
 by the appraisement, and the action rose out of something collateral to 
 it. Bidler J. said, " If no appraisement had taken place, the objection 
 to the action in this form might have prevailed. But that circum- 
 stance is decisive. With res[)ect to the point made at the trial, on the 
 Statute of Frauds, that agreement does not relate to any interest in 
 land, which remains altogether unaltered by the arrangement concern- 
 ing the crops." Lord EUenhorovgh remarked on this point, in Croslnj 
 V. WadsworUi, " The contract in Poidter v. KiJJinglycclc, if it had origi- 
 nally concerned an interest in land, after the agreed substitution of 
 pecuniary value for specific produce no longer did so ; it was originally
 
 58 GROWING GEASS. 
 
 an agreement to render what should have become a chattel, ?'. c, part 
 of a severed crop, in that shape, iu lieu of rent ; and by a subsequent 
 agreement it was changed to money instead of remaining a specific 
 render of produce. So that one wonders rather how it should ever 
 have been thought an interest in land, than that it should have 
 been decided not to be so," 
 
 In Caii-iiKjton \. Roots the plaintiff had verbally agreed with the de- 
 fendant, in ]May, to buy of him a crop of grass, growing in a four-acre 
 field, at £5 lO-s, per acre, to be cleared by the end of September, and 
 half the price to be paid down before the plaintiff cut any of the grass. 
 This condition not having been complied with, the defendant turned the 
 plaintiffs horse and cart out of the field, and prevented him from cutting 
 or carrying away the grass. It was held by the Court of Exchequer 
 that trespass did not lie, for that this was in substance an action 
 charging the defendant on the contract within section 4 of the Statute 
 of Frauds, and that a contract for the sale of an interest in land without 
 a note in writing, may operate as a licence, so as to excuse the entry 
 of the purchaser on the land, but cannot be made available in any 
 Avay (IS a contrcict. 
 
 Parlce B. said, " The question is, what the plaintiff means when he 
 avers in his replication, that while the close or crop of grass was the 
 property of the defendant, he agreed to sell and sold to the plaintiff, 
 and the plaintiff agreed to buy and bought of him the crop of grass at 
 a certain price per acre, with lil)erty to the plaintiff to cut and take 
 away the grass, and to enter upon the close with his horse and cart for 
 that purpose, by virtue of which he became possessed of the crop of 
 gi'ass. Docs he mean an agreement in fact, operating as a licence only ? 
 or a binding contract for the sale of the crop, and for him, the plaintiff, 
 to have a right of entry on the land to gather it ? I think the latter is 
 the true construction, and that it means a contract which one party 
 could enforce against the other as a matter of right. If this be so, then 
 supposing the agreement to be for the sale of chattels, it was not proved 
 by the evidence : if it was an agreement for the sale of an interest in 
 land, it was not binding, by virtue of the 4th section of the Statute of 
 Frauds. I think the right interpretation of that section is, that an 
 agreement which cannot be enforced on either side, is as a contract void 
 altogether : no doubt it may have, as an agreement in fact, some opera- 
 tion in communicating a licence, but such licence would be counter- 
 mandablc ; and tliat appears to be the whole effect of the decision in 
 Crosby v. Waclsivorth. There, no doubt, tlie j^laintiff might have pleaded 
 a licence; but the defendant Avould have rcjjlied that it was counter- 
 manded, and the plaintiff could not have succeeded on that issue. I
 
 CORN CROPS. 50 
 
 think, therefore, this is an averment of a binding contract for the sale 
 of the crop, with a riglit to enter on the land in order to take the cro}). 
 That contract being void by the statute, the action cannot be maintained, 
 and the rule ought to be absolute for a nonsuit." 
 
 In Jones v. Flint the plaintiff and defendant agreed verbally that the 
 defendant should give £45 for the cro}) of growing corn (wheat and 
 barley) on the plaintiff's land, and tlie ]jrofit of the sfuhMe afterwards ; 
 and that plaintiff was to have liberty for his cattle to run with the 
 defendant's. Defendant was also to have some potatoes growing on the 
 land, and whatever lag grass was in the fields, and also to harvest the 
 corn and dig up the potatoes, the plaintiff paying the tithe. It did not 
 distinctly appear whether the sale was liy the acre or not ; and the crojis, 
 &c., Avere taken by the defendant in conformity with the agreement. 
 The payment of £5 and the tender of £30 lis. lOcl. were proved as 
 pleaded ; and Bosanquet J,, overruling the objection for the defendant 
 that the contract proved was for an interest in land, directed a verdict 
 for the plaintiff on the first issue, never indebted as to all but 
 £35 11 5. 10^/,, and for the defendant on the second and third. The 
 Court of Queen's Bench refused a nonsuit, and held that it did not 
 appear to be the intention of the parties to contract for any interest in 
 land, and the case was therefore not within the 4th sec. of the Statute 
 of Frauds, but a sale of goods and chattels as to all but the lay grass ; 
 and as to that, a contract for the agistment of defendant's cattle. 
 
 Lord Denman C. J. said, " The crops of corn, potatoes, and the after 
 eatage of stubble and lay grass, were all, except the lay grass, frudus 
 industriaJes ; as such they are seizable by the sheriff under ^ fieri facias, 
 and go to the executor and not to the heir. If they had been ripe at 
 the date of the contract, it may be considered now as quite settled that 
 the contract would have been held to be a contract merely for the sale of 
 goods and chattels. And although they had still to deri^'c nutriment 
 from the land, yet a contract for the sale of them has been determined 
 from this their original character, not to be on that account a contract 
 for the sale of an interest in land. Evans v. Roleris proceeds on this 
 principle. Holrogd J. says, ' This is to be considered a contract for the 
 sale of goods and chattels to be delivered at a future period, although 
 the vendee might have an incidental right, by virtue of this contract, to 
 some benefit from the land while the potatoes were arriving at maturity, 
 yet I think he had not an interest in the land within the meaning of 
 this statute.' And Littlcdate J. says, ' I think that a sale of any growing 
 produce of the earth (reared by labour and expense) in actual existence 
 at the time of the contract, whether it be in a state of maturity or not, 
 is not to be considered a sale of au interest in or concerning lands within
 
 60 AGREEMENT TO AGIST. 
 
 the mcauing of the -1th section.' Bcujley J. lays down the same principle, 
 and qnalifies not the judgment but the dictum of Main^field C. J. in 
 Emmerson v. Hcelis, which is certainly at variance with the decision of 
 the Court of King's Bench in Evans v. Roberts. It was a dictum, how- 
 ever, unnecessary to the decision. The present case differs from Evans 
 V. Eoherfs in this, that there the potatoes were to be dug up by the 
 seller; but Holroijd S. expressly says that even if they were dug up by 
 the buyer, ' I think he would not have had an interest in the land.' " 
 
 On the whole the Court considered that the possession of the field 
 remained in the owner after the harvesting, and that it was more reason- 
 able to consider him as (([listing the vendee's cattle, than as having his 
 own cattle agisted by him whose interest at the best was of so very 
 limited a nature; but that if this had been a case in which the parties 
 intended a sale and purchase of the grass to be mowed or fed by the 
 buyer, the defendant's objection must prevail. Without, however, im- 
 peaching the authority of Croshy v. Wcuhworth, but deciding on the 
 additional facts in the case, they thought the introduction of the lay 
 grass into the contract (especially as it might be doubted on all the 
 evidence, which did not state that any clover or other grass had been 
 sown with the corn, whether anything that could be called a crop of 
 grass was in the ground) did not alter its nature, and that the defendant 
 took no interest in land. Excluding the lay grass, the parties must be 
 taken to have been dealing about goods and chattels, and an easement 
 of the right to enter the land for the purpose of harvesting and carrying 
 tliem away was all that was intended to be granted to the purchaser ; 
 and as to the lay grass, it was a mere contract for the agistment of 
 defendant's cattle. 
 
 The general ijrinciple was thus stated by R(jlfe B., in Wasldmirne v. 
 Binroirs: "When," said his Lordship, "a sale of growing crops does, 
 and when it does not confer an interest in land, is often a question of 
 much nicety ; but certainly when the owner of the soil sells what is 
 growing on the land, whether natural produce, as timber, grass, or 
 apples, or fnictus indiistrialcs, as corn, pulse, or the like, on the terms 
 that he is to cut or sever them from the land, and then deliver them 
 to the purchaser, the purchaser acquires no interest in the soil, which 
 in such case is only in the nature of a warehouse for what is to come 
 to liim merely as a personal chattel." 
 
 In Mayfield v. Wadsley, the Court of King's Bench, Littledale J., 
 did)., was of opinion that where there was a sale of (jrowing crojjs 
 distinct from any assicjnment or letting of the land, the crops do not 
 constitute part of the inheritance or any interest in land, but are mere 
 chattels, and may be recovered on a declaration for goods bargained
 
 CROPS AND TILLAGES. CI 
 
 and sold ; or, per Ahhot C.J., at least on a declaration stating that the 
 defendant was indebted for the value of crops sown by the plaintiff on 
 land in his possession, and which the defendant (who had made a part 
 payment on account for such crops, some dead stock, and a farm 
 machine) was allowed to take, and for which he promised to pay. 
 
 The case of the Earl of Falmouth v. Thomas, where the pleadings 
 expressly connected the bargain as to ike crops and Ullages with an 
 interest in land, established that a contract by plaintiff with an in- 
 coming tenant to take and pay for growing crops, and the work, 
 labour, and materials expended on making lands ready for tillage, and 
 for which the plaintiff had not as yet derived any benefit, in considera- 
 tion of plaintiff's letting him a farm for fourteen years, is a contract or 
 sale of an interest in or concerning land, and therefore void if not 
 reduced into writing. At the time when each of those contracts upon 
 which the plaintiff sued were stated to be made, the cro]3S were grow- 
 ing upon the land, the defendant was to have the land as well as the 
 crops, and the work, labour, and materials were so incorporated with 
 the land as to be inseparable from it. The defendant would not have 
 the benefit of the work, labour, and materials unless he had the land, 
 and hence the Court of Exchequer considered that the right to the 
 crops, and the benefit of the work, labour, and materials were both of 
 them an interest in land. 
 
 An agreement hy a tenant ivith his landlady, that if she would accept 
 another for her tenant in his place (he being restrained from assigning 
 the lease without her consent) he would pay her £40 out of £100 
 which he was to receive for the good-will if her consent was obtained, 
 is a contract for an interest in land (Griffith v. Young). As, however, 
 the defendant had received the £100 from the new tenant, who was 
 cognizant of this agreement, and then refused to pay the £40 on the 
 ground that " there was no written agreement, and words were but 
 wind," he was held liable to his landlady in an action for money had 
 and received to her use. Lord Ellenhorongh C.J. said : " I have no 
 doubt it would have been within the statute if the contract were 
 executory ; but when the contract is executed, and money has actually 
 been paid by the succeeding tenant to the defendant in trust, to be paid 
 over by him to the plaintiff, shall he now gainsay that he received it 
 for her use ? If one agree to receive money for the use of another, 
 upon a consideration executed, however frivolous or void the considera- 
 tion might have been in respect of the person paying the money, if 
 indeed it were not absolutely immoral or illegal, the person so receiv- 
 ing it camiot be permitted to gainsay his having received it for the use 
 of that other." Le Blanc J. said : " The consideration is past : Pugh
 
 G:2 ACCEPTANCE OF NEW TENANT. 
 
 is iu possession, and has paid this money to the defendant for the very 
 purpose of his paying it over to the plaintiff : it is clearly, therefore, 
 money received for her use. It wonld have been a different question 
 if Pugh had not paid the money to the defendant, and the action had 
 been brought against him.'' 
 
 So in Buitcmere v. Hayes, the plaintiff being possessed of a messuage 
 and premises for the residue of a certain term of years, made a parol 
 contract with the defendant to relinquish possession to him, and to 
 suffer him fo become tenant of the premises for the residue of the term, 
 in consideration of his paying £10 towards completing certain repairs 
 of the premises, on the latter being estimated by a surveyor. The 
 defendant became tenant, and entered into possession, but refused to 
 pay for such repairs after the surveyor had sent in his report. This 
 was held to be an agreement relating to the sale of an interest in land 
 within 29 Car. II. c. 3, s. 4, and void for want of being in writing, and 
 the defendant was allowed to avail himself under non assumpsit, of the 
 objection that there was no memorandum or note in writing, &c., of 
 such contract. Parlce B. said : " Perhaps if the declaration had stated 
 an agreement to relinquish the possession merely, it might not have 
 amounted to a contract for an interest in land ; but it goes on to 
 allege that the plaintiff was to suffer the defendant to become tenant 
 thereof for the residue of the term. Now, he could not become tenant 
 for the residue of the term except by an assignment, and that would 
 be a contract for an interest in land within the statute, and ought to 
 be reduced into writing." 
 
 This case governed the decision of the Court of Common Pleas in 
 Cockinej v. Ward, where the contract pointed to a surrender or relin- 
 quishment by the plaintiff of an interest in land in favour of the defen- 
 dant. The facts were as follows : The plaintiff was about to relinquish 
 a farm, which her deceased husband had occupied for several years ; 
 and the defendant, who occupied an adjoining one, promised to give 
 her £100 if she would give up possession at Lady-day, and induce her 
 landlord to accept him as a tenant in lieu of her. This arrangement 
 was effected; but after entry the defendant refused to pay the £100, 
 admitting his liability, and asking for time till he got the valuation 
 of his own farm, which he duly obtained before the trial. It was 
 contended for the defendant that the agreement, if any existed, being 
 for the sale of an interest in land, could not be proved by parol 
 testimony ; while it was insisted for the plaintiff that the contract 
 being executed might be proved by parol, and that there was at all 
 events sufficient evidence of an account stated. A verdict was taken 
 for the plaintiff, damages £100, leave being reserved to the defendant
 
 I'JIOOF OF 8Uun EXECUTED CONTRACT. C>:} 
 
 to move to euter a nonsuit, or a vci'dict fur liim, if tlic Court should 
 l)C of opinion that there was not suffieicnt evidence to sustain the 
 verdict upon the special count or the account stated. The Court 
 entered the verdict for the defendant on the first count, Ijut ordered it 
 to stand for the plaintiff on the second. 
 
 Tindal C.J. said : " It was not contended that a contract under 
 which the plaintiflF, in consideration of a sum of money, gave up the 
 tenancy in the land, and procured the defendant to be put in her place, 
 was not a ' sale of an interest in the land ' within the meaning of the 
 Statute of Frauds ; but the argument before us was, that although if 
 this contract had been executory, it must have been proved by an 
 agreement or memorandum in writing : yet, as it was executed, as tlie 
 plaintiff had surrendered her tenancy and had procured the defendant 
 to be made tenant instead of herself, the case was not to be held 
 within the statute : and the case of Price v. Leylmrn, before Dcdias 
 C.J., was relied on as an authority to that effect. But as the special 
 count in this action is framed upon the very contract itself, to enforce 
 the payment by the defendant of the sum stipulated to be paid as the 
 2)rice of the interest in the land which the plaintiff gave up, and to 
 which the defendant succeeded, we think the contract itself cannot ])e 
 considered as altogether executed, so long as the defendant's part still 
 remains to be performed. The case appears to us to fall within the 
 principle adverted to by Le Btcvnc J. in Griffith v. Yowig ; and farther, 
 Ave think the case of Buttemere v. Hayes is an authority in point, that 
 the present contract, though executed on the part of the plaintiff, yet 
 not being executed on the part of the defendant also, is still to be con- 
 sidered as a contract within the Statute of Frauds. The plaintiff, 
 therefore, failing upon the special contract, the remaining question is 
 whether she is in a condition to recover the £100 under the count upon 
 an account stated. There was distinct evidence in this case that after 
 the plaintiff had given up the possession, and after the defendant had 
 succeeded to it through the plaintiff's application to the landloi'd, the 
 defendant admitted that he owed the £100 to the plaintiff, and this 
 appears to us to be sufl&cient evidence to enable the plaintiff to recover 
 on the account stated." 
 
 " The objection was that the admission of a debt will only enable a 
 plaintiff to recover as upon an account stated, where the debt itself 
 does not appear to be incapable of being recovered as a debt ; and that 
 here the plaintiff could not recover upon the original contract, inas- 
 much as it was not evidenced by a writing signed, but in the first place 
 such an exception is contrary to the authority of several decided cases. 
 In Knoivles v. llichel the ground of the original debt was a sale to the
 
 64 SALE OF MILK-WALK. 
 
 defendant of standing' trees, -which the defendant afterwards procured 
 to be felled and taken away ; and the objection was that the plaintiff 
 conld not recover on the orii^nnal contract for standing trees, which 
 formed part of the realty ; but it was held, nevertheless, that the ac- 
 kaowledgraent of the price to be paid for the trees, after they were 
 felled and applied to tlie nse of the defendant, was sufficient to sustain 
 tlie count on tlie account stated : Lord EUcnhorougli C.J., saying, that 
 if there were an acknowledgment by the defendant of a debt due to 
 the plaintiff upon any account, it was sufficient to enable him to 
 recover on an account stated. And in Hiylimore v. Primrose the Court 
 of Queen's Bench held that the proof of the acknowledgment of one 
 item of debt only, was good to support a count upon an account stated ; 
 and the former case was there mentioned with approbation, and relied 
 on. In Pinchon v. ChUcott there was a verbal contract for turnips 
 growing in a field, upon which it was held the plaintiff could not 
 recover ; yet as the defendant admitted, after some of the turnips were 
 drawn, tliat he owed the plaintiff £3 for them, it was held by Best C.J. 
 at Nisi Prills that he could recover to that amount upon an account 
 stated, and no motion was made to the Court to question the ruling. 
 And in Sea(jo v. Deanc, a promise to pay a specified sum where the 
 party had the benefit of the contract, though he could not have been 
 sued upon it, on account of its being a verbal contract only, was held 
 to be good evidence on the account stated. See also Peacoclc v. Harris. 
 Upon the authority, tlierefore, of decided cases, as well as on principle, 
 we think the plaintiff's right to the verdict on the account stated may 
 be sustained." As to the sufficiency of a consideration arising out of a 
 morcd obligation, see Lee v. Miiggeridge, Seago v. Deane, Liitlejield v. 
 Shee, and Eastwood v. Keinjon. 
 
 The decision of the case of Coching v. Ward was also upheld by the 
 Court of Common Pleas in the case of Kelhj app., ^Yel)h resp., which was 
 an appeal from a decision of the Ticeds county court. 
 
 It was also held l)y Lord EUcnl)oroiigk C.J., in Inman v. Stamp, that 
 an agreement to occu})y lodgings at a yearly rent, payable in cpiarterly 
 portions (the occupation to commence on a future day), is an agreement 
 relating to an interest in land. 
 
 Smart v. Harding was another case of the same class. The defendant 
 agreed to purchase a milk-walk in Islington for £80, including jJosses- 
 sion of the 2)remises (of which he was tenant from year to year), and 
 plant, cans, and pails. When the contract was entered into the plain- 
 tiff represented tlie custom at between twelve and fourteen barn gallons 
 a day, and the customers as all full-priced ones except two or three. 
 The defendant was not to have had possession for three Aveeks, but took
 
 PURCHASE OF MILK- WALK. 65 
 
 possession at once in consequence of the death of plaintiff's wife, paying 
 £51 5s. 3d. down, and promising to pay the balance when the agree- 
 ment was ready for execution. Finding that the plaintiff had misre- 
 presented both the quality of the customers and the quantity of the 
 milk sold, the defendant refused to pay the balance of the purchase 
 money, £28 14s. Od. Crcssivell J. left the case to the jury on the 
 conflict of evidence, reserving leave to the defendant to move to enter a 
 verdict for him, or a nonsuit, if the Court of Common Pleas should 
 think the objection that the contract was void by 29 Car. II., c. 3, s. 4, 
 for want of a writing, and the plaintiff had a verdict for the balance. 
 The Court, Ckessivell J. assentiente, directed a nonsuit, and held that 
 the yearly tenancy of the premises where he carried on his business, 
 whicli the plaintiff agreed to assign to the defendant, was clearly 
 an interest in lands within the statute, and cited the authority of 
 Coching v. Ward. There the plaintiff announced to the defendant that 
 she had not an interest which she could legally part with to him ; but 
 here the plaintiff expressly agreed to " yield up the possession and occu- 
 pation of the premises to the defendant, and to permit him thenceforth 
 to occupy the same." If the landlord consented, Harding was to 
 become his tenant ; if not, he was to be tenant to Smart for the extent 
 of his interest in the premises. And per 3IauU J. : " The only dif- 
 ference between the two cases is, that there was in CocJcing v. Ward a 
 stipulation in the agreement that the plaintiff would endeavour to in- 
 duce the landlord to accept the defendant as tenant in lieu of himself. 
 The case is a stronger one than Coching v. Ward, inasmuch as here the 
 plaintiff contracts absolutely to assign, whereas there the contract was 
 to assign subject to the consent of the landlord." 
 
 Again in Green v. Saddington a parol agreement was made that de- 
 fendant should, give up possession of iiremises in Manchester to the 
 plaintiff, who was to pay him £37, and that the latter was to repay him 
 £10 in case the town-council of Manchester should at a future time 
 refuse a licence to the plaintiff to use the pi-emiscs as a slaughter-house. 
 The possession was given up by the defendant, and the plaintiff paid 
 £37, but the licence was refused. The plaintiff was nonsuited by the 
 recorder in the Court of Eecord in an action to recover the £10 ; but it 
 was held by Wigldman and Erie J J. {Cromjjfon J. duMtante) that the 
 contract as far as the land was concerned having been executed, the 
 contract sued upon was not a contract for an interest in or concerning 
 land within section 4 of 29 Car. IT., c. 3, and the rule was made abso- 
 lute for a new trial. Erie J. said, " The defendant objects that the 
 whole contract was for a contract or sale of an interest concerning land, 
 and the objection would prevail if the action was for the land or the
 
 66 EIGHT TO TAKE WATER FROM A WELL. 
 
 purchase-money, according to Cochlng v. Ward. Bat the interest in 
 land in this case has passed, and tlic pin-chase-money has been paid. 
 As far as the land is concerned the contract is completely executed, and 
 cannot now be rescinded. In the present action the whole considera- 
 tion for the promise now sued on was money, viz., £37. The whole of 
 the promise now sued on is for money, viz., £10. It therefore appears to 
 us not to be within the Statute of Frauds ; but, on the contrary, to be 
 within the class of cases where, after the contract directly concerning 
 an interest in land has been executed, the action has been held to be 
 upon a separate promise to be performed after such execution. In 
 Griffith X. Young, a tenant agreed to pay the landlady £40 out of £100 
 to be received by him from an incoming tenant ; this he was to pay to 
 her for consenting to the assignment by him of his term ; the assign- 
 ment was made, and consented to by the plaintiff, and the £100 was 
 received by the defendant ; and in an action by the landlady for £40, 
 it was held that the action lay without any writing, the contract con- 
 cerning the interest in land having been executed. The same reasoning 
 was applied in Poultcr v. KilUng'beclc, and Seaman v. Price. Also the 
 reasoning of Tindal C.J. in Souch v. StraivMdge, that the enactment in 
 section 4 of the Statute of Frauds, relating to contracts not to be per- 
 formed within a year, has no application in an action of indehdatus 
 assumpsit on an executed consideration, applies equally to the present 
 action of indebitatus assumpsd for money had and received, when the 
 defendant seeks to avail himself of the part of the same section relating 
 to land." Orompton J., on the contrary, thought that there was only 
 one indivisible contract. 
 
 It was also held in Tgkr v. Bennett, that a right to take water from a 
 well by reason of the occupation of a dwelling-house, and for the more 
 convenient occupation thereof, is an interest in land. • Lord Denman 
 C.J. observed, "There is no doubt that a right to take water is an in- 
 terest in land." And j^er Patteson J. : " In Edmonson v. Edmonson it 
 was not doubted that if the right (to dig turves) had come in question 
 it would have been an interest in land, and within the exception." 
 
 In Mechelm v. Wallace the declaration stated, as the consideration for 
 the defendant's promise, that the plaintiff was to become tenant to the 
 defendant, of the house and furniture together, at a certain rent, from a 
 given day, if complete furniture were sent into the house in reasonable 
 time, and it was held by the Court of Queen's Bench that the de- 
 fendant's agreement to send in furniture was an inseparable part of a 
 contract for an interest in land, and that the promise to do so, for 
 neglect of which the defendant was sued, must be in writing. But it 
 was ruled in ffallm y. Runder that an agreement by an outgoing tenant
 
 PAYMENT OP LEGACIES OUT OF SALE OF GROWING CROPS. 67 
 
 to leave his fixtures (which he had purchased on entering, and might 
 have removed during his tenancy) for the landlord at a valuation, is not 
 the sale of an interest in land within the 4th sec. of the Statute of 
 Frauds, nor at semble the 17th, which relates to the "sale of goods" 
 above the value of £10, and the tenant recovered £40 105. in indebi- 
 tatus assumpsit for the price and value of fixtures, &c., bargained and 
 sold, and for fixtures sold and delivered. That case was, in fact, a 
 mere waiver of the tenant's right to remove the fixtures in consideration 
 of the landlord's agreeing to pay for them, according to a valuation to 
 be made afterwards. The plaintiff did not give the defendant 
 a right to the fixtures before the expiration of the term, but he 
 agreed to waive his right to sever them during the term, and to sell 
 them to her at the end of the term. Parlte B. said, "The case bears 
 a strong analogy to that of a contract by a tenant to give up to his 
 landlord or successor those growing crops to which he is entitled by the 
 common law or custom of the country as emblements, and the value of 
 which, after the contract is executed, may certainly be recovered on a 
 count of crops bargained and sold. (See MaijfiM v. Wadsley.) We 
 are quite satisfied that this is not a sale of any interest in land, and the 
 judgment of the Court, and particularly of Mr. Justice Littledale in 
 Evans v. Eobcrts, upon the subject of growing crops, is an authority to 
 the same eflTect." 
 
 Payment of legacies out of sale of groiving crops. — Growing crops are 
 an interest in land within the statute of mortmain (13 & 14 Vict., c. 94). 
 And jHT Stuart V.C. : " If growing crops pass under a devise of land, 
 how is it possible to say that the legacies which the testator has given 
 to these charities would be paid out of monies arising from the sale of 
 pure personalty, if they were paid out of the sale of growing crops ? " 
 (Sgmons v. Marine Society.) 
 
 Easement of " grass for a cow" creates no interest in land. — A gift by 
 will, dated in 1838, to J. M. " of the house she lives in, and grass for a 
 coiv in G field," part of another estate, passes an estate in fee in the 
 house, but does not create a permanent interest in the land of the other 
 estate. And per Sir J. Romilly M.R. : " The grass for a cow was not 
 necessary for the enjoyment of the house ; it passed no interest in the 
 land, but merely gave a personal right to Jane Malcolmson by way of 
 easement to pasture a cow on a field given absolutely to another, aa 
 long as she thought fit " {Reay v. RawUnson). 
 
 Indiuisibte contract for interest in land. — In Hodgson v. Johnson 
 (Jurist, April 2, 1859), plaintiff and defendant agreed by word of mouth 
 that plaintiff should become tenant in his stead, of a brick yard, and 
 take the plant upon a valuation, and that defendant should settle with 
 
 F 2
 
 C8 CONTRACT BY i'AKOL TO LIVE AT A BOARDING HOUSE. 
 
 the landlord for the rent due, and for plaintiff becoming tenant upon 
 the same terms as defendant. Plaintiff having entered into occu- 
 pation, and worked the ground, a distress was put in for rent due 
 from defendant to the landlord ; and in an action to recover damages 
 for breach of defendant's promise to pay the rent, it was held by the 
 Court of Queen's Bench that the promise in respect of which the 
 plaintiff sued was part of an indivisible contract for an interest in land 
 within sec. 4 of stat. 29 Car. II. c. 3, and that therefore plaintiff could 
 not recover. And^per Campbell C.J. : " the principle of the decision in 
 Green v. Saddington [see Law of the Farm, p. 65] is, that there were in 
 that case two separable contracts — not that there was one contract 
 which might be split in two, and that a new consideration was con- 
 stituted on the part performance of the contract." And per Crompton J.: 
 " I entertain a strong opinion upon Green v. Saddington, where it was 
 thought by the majority of the Court that the contract being executed 
 as far as regarded the land, and the promise sued on relating wholly 
 to money, the plaintiff might recover. That decision can only be 
 defended on the ground that there were two contracts. In this case 
 it is clear that there is only one, and one part of it cannot be severed 
 from the other." 
 
 Contract hy parol to live at a hoarding-house.— In Wright v. Slaver t, 
 where the defendant agreed by parol with plaintiff, who kept a boarding- 
 house, to pay for the board and lodging of himself and servant, and 
 accommodation for a horse, £200 a year from a given day, terminable by 
 either party at a quarter's notice — this was held not to be a contract in 
 or concerning land within the Statute of Frauds, and plaintiff could 
 maintain an action for the breach of it. And per Blackburn J. : " In 
 Inman v. Stamp, (1 Stark, N. P. 12), and Edge v. Strafford, (1 C. & 
 J., 391), there would have been an actual demise, had the contract been 
 executed giving such a right. In the present case, there was no con- 
 tract that defendant should become tenant or occupier of any specific 
 room,, and therefore there was no intention to pass any interest in that 
 room." 
 
 Right of mortga,gee of tenant's fixtures to enter and sever them. — The 
 moiigagee of tenant's fixtures has a right or interest m the land, which 
 the tenaut who has mortgaged cannot defeat by a subsequent surrender 
 of the lease to his landlord ; and if he does so surrender, the mortgagee 
 has a right to enter and sever such fixtures, and may maintain an 
 action against an incoming tenant who has prevented him from ex- 
 ercising such right, and recover the value of the fixtures as severed. 
 knUper Curiam: "This doctrine has been fully adopted and acted on 
 in modem cases as in Pleasant v. Benson (U East, 234), Dd. Bleadon v.
 
 RIGHT OF MORTGAGEE TO TENANT'S FIXTURES. 69 
 
 PyU (5 M. & S., 146) and Pijice v. Eyre (9 B. & C, 909). The ques- 
 tion is thus reduced to the inquiry whether the mortgagee's right to 
 sever the fixtures from the freehold is a "right or interest within the 
 meaning of this rule of law, and we are of opinion that it is. Certainly 
 it is an interest of a peculiar nature in many repects, rather partaking 
 of the character of a chattel than of an interest in real estate ; but we 
 think it so far connected with the land that it may be considered a 
 right or interest in it, which, if the tenant grants away, he shall not 
 be allowed to defeat his grant by a subsequent voluntary act of sur- 
 render" {London & Westminster Loan Co. v. Drake). The price of 
 fixtures, as such, cannot be recovered under the common count of goods 
 sold and delivered {Lee v. Risdon, Taun. 189) ; but it would be other- 
 wise if they had been first removed {Wilde v. Waters, 16 C. B., 637; 
 Dalton V. Whitteen, 3 C, B., 961 ; Pitt v. Shetv, 4 B. & Aid., 206).
 
 70 rJGHT TO CONSlTvUCT DRAIN, 
 
 CHAPTER III. 
 
 EASEMENTS. 
 
 " Terms dc la Ley " defines an easement to be a privilege that one 
 neijrhltonr liatli of another by charier or prescription, without profit, 
 and it instances " as a way or sink through his land, or such like." To 
 establish the presumption of a grant of an easement, it must appear 
 that the enjoyment was with the acquiescence of him who was seised 
 of an estate of inheritance ; for a tenant for life or years has no power 
 to grant such right, except as against himself {Bright v. ]YaRer), 
 {Daniel v. Korlh) {Barker v. Richardson). And iw Bayley J.; in 
 Ilciclins Y. Shippam: "A right of way or a riglit of passage for water 
 (where it does not create an interest in the land) is an incorporeal 
 right, and stands upon the same footing with other incorporeal rights, 
 such as right of common, rents, advowsons, &c. It lies not in livery 
 but in grant, and a freehold interest in it cannot le "created or ]jassed 
 (even if a chattel interest may, which I think it cannot) othenvise than 
 ly decd.'^ 
 
 In this case the action was stopping up a drain, and the declaration 
 claimed the right as a licence and authority granted to the plaintiff's 
 landlords, their heirs and assigns, to make the drain, and have the foul 
 water pass from their scullery through it across the defendant's yard. 
 One of the counts claimed it indefinitely, without fixing any limits ; 
 others restricted it either to the time the defendant should continue 
 possessed of his yard or house, or so long as it should be requisite for 
 the convenient occupation of the plaintiff's house ; some stated, as part 
 of the consideration, that defendant's landlords should do some repairs 
 to the defendant's premises ; and others did not. It appeared in evidence 
 that the licence to construct and continue the drain was by parol, and 
 it was held that as the right claimed in the declaration was a freehold 
 riglit, assuming that it was an easement only upon the land of another, 
 and not an interest in land, it could not be created without deed. 
 Bayley J. said, after elaborately reviewing all the authorities, " We are 
 of opinion that although a parol licence might be an excuse for a 
 trespass till such licence was countermanded, that a right and title to
 
 LICENCE TO ENTER LAND, WHEN IRREVOCABLE. 71 
 
 have passage for the water, fur a freehold interest, required a deed to 
 create it ; and that as there has beeu no deed in this case, the present 
 action, which is founded on a right and title, cannot be supported." In 
 Fentiman v. Smith, where the plaintiff claimed to have passage for 
 water by a tunnel over defendant's land, Lord EUenhoroufjh C.J. laid it 
 down distinctly that "the title to have the water flowing in a tunnel over 
 the defendant's land could not pass by parol licence without deed ; and 
 the plaintiff" could not be entitled to it as stated in the declaration, by 
 reason of \\\% possession of the mill, but he had it by the licence of the 
 defendant, or by contract with hun, and if by licence it was revocable 
 at any time." 
 
 ^Vell V. Paternoster, Wood v. Lake, and Taijlor v. Waters, were not 
 cases of freehold interest, and in none of them was the objection taken 
 that the right lay in grant, and therefore could not pass without deed. 
 In Webb v. Paternoster there was a licence to the plaintiff" from Sir 
 William Plummer, to lay a stack of hay on his land, for a reasonaljle 
 time. Afterwards Sir William leased the land, and the lessee turned 
 in his cattle and ate the hay {mise ses avers in c'est acre, queur eleroure 
 le code lie hay). The Court held that such licence was good, and could 
 not be countermanded within a reasonable time, but that more than a 
 reasonable time had elapsed, viz., half-a-year, and that therefore the 
 licence was at an end. The question in Wood v. Lalce was whether a 
 parol agreement for the liberty to stack coals upon land is good for 
 seven years, and Lee C.J. and De/nison J. thought that it was, as the 
 agreement was only for an easement, and not for an interest in land. 
 
 These cases, as well as that of Taylor v. Waters (in which the 
 plaintiff, who had purchased a silver opera ticket, was held entitled to 
 a verdict of 28 guineas, as the damage for two years' exclusion from 
 the opera, where they refused to recognise it), established that a licence 
 to enjoy a beneficial privilege on land may be granted without deed, 
 and notwithstanding the Statute of Frauds, without writing. The 
 grounds of the judgment of Gibbs C.J., which was here upheld by the 
 Court of Common Pleas, were that the right under the silver ticket 
 was not an interest in land, but a licence irrevocable to permit the 
 plaintiff to enjoy certain privileges thereon ; that it was not required 
 by the Statute of Frauds to be in writing, and conseqiiently might be 
 granted without deed. The Court of Exchequer, however, in Wood v. 
 Leadbittcr, considered Taylor v. Waters " to the last degree unsatisfac- 
 tory — an observation we have the less hesitation in making, in conse- 
 quence of its unsoundness having previously been doubted by the Court 
 of King's Bench and Mr. Justice Bayloy, in the case of Hewlins v. 
 Shippamr And per Alderson B. : " Although the older authorities
 
 72 NATURE OF LICENCE. 
 
 speak of incori^oreal inheritances, yet there is no doubfc but that the 
 principle does not depend on the quality of interest granted or trans- 
 ferred, but on the nature of the subject matter : a right of common, for 
 instance, which is a jn-oflt a prendre, or a right of way, which is an 
 easement, or right in the nature of au easement, can no more be granted 
 or conveyed for life or for years without a deed, than in fee simple." {ih.) 
 
 It would seem from Williams v. Jforris, that there cannot he an 
 irrcrocohJe ticence to enter vpon land, without its amounting to an in- 
 terest in land, and such licence can only be granted by deed. And so 
 it was held by the Court of Exchequer in Wood v. Leadhittcr, that a 
 right to come and remain for a certain time on the land of another 
 can be granted only by deed ; and a parol licence to do so, though 
 money be paid for it, is revocable at any time without paying back the 
 money. 
 
 A licence is a thing so evanescent that it cannot be transferred, and 
 it is determined ly the assignment of the subject matter, in respect of 
 which the privilege is to be enjoyed {Coleman v, Foster). A parol 
 licence from A. to B., to enjoy an easement over the land of A., is 
 countermandable at any time, while it remains executory (Wallis v. 
 Harrison). And if A. conveys the land to another, the licence is de- 
 termined at once, without notice to B. of the transfer, and B. is liable 
 in trespass if he afterwards enters upon the land (ib). And j^er Parke 
 B., ""We are not called upon in this case to consider whether a licence 
 to create or make a railroad, granted by a former owner of the soil, is 
 countermandable after expense has been incurred by the licensee, which 
 was the question in Winter v. Broclcivell ; for it is not alleged that there 
 has been any expense incurred in consequence of the licence, and there- 
 fore it remains executory ; and I take it to be clear that a parol execu- 
 tory licence is countermandable at any time, and if the owner of the 
 land grants to another a licence to go over or do any act upon his close, 
 and then conveys away that close, there is an end to the licence ; for it 
 is an authority only •with respect to the soil of the grantor, and if the 
 close ceases to be his soil, the authority is instantly gone. Webb v. 
 Paternoster is very distinguishable from this case, for there the licence 
 was executed by putting the stack of hay on the land ; the plaintiff 
 there had a sort of interest against the licensor and his assigns, but a 
 licence executory is a simple authority excusing trespassers on the close 
 of the grantor, as long as it is his, and the licence is uncountermanded 
 but ceases the moment the property passes to another." {ih.) 
 
 In Winter v. Broclcwell it was decided, on the authority of Webb v. 
 Paternoster, that a imrol licence to put a skylight over the defendant's 
 area (which impeded the light and air from coming to the plaintiff's
 
 LICENCE TO ERECT A WEIR, 73 
 
 dwelling-honse through a window) cannot le recalled at phasvre, after 
 it has been executed at the defendant's expense, at least not without 
 tendering the expenses he had been put to. Eaylnj J. thus expressly 
 distinguished this case from Heiulins v. Shqipam in his judgment in 
 the latter : " All that the defendant there did he did vpon his own land. 
 He claimed no right or easement upon the plaintiff's. The plaintiff 
 claimed a right and easement against him, by the privilege of light and 
 air through a parlour window, and a free passage for the smells of an 
 adjoining house, through defendant's area ; and the only point decided 
 there was, that as the plaintiff" had consented to the obstruction of such 
 his easement, and had allowed the defendant to incur expense in 
 making such obstruction, he could not retract that consent without re- 
 imbursing the defendant that expense. But that was not the case of 
 the grant of an easement to be exercised upon the grantor's land, but a 
 permission to the grantee to use his own land, in a way in which but 
 for an easement of the plaintiff''s such grantee would have had a clear 
 right to use it." 
 
 Ti7idal O.J. adopted Winter v. Brochvell as the basis of his judgment 
 in Liggins y. Inge, where the predecessors of the plaintiff", who was 
 entitled to a flow of water to his mill over the defendant's land, 
 authorized the latter by a parol licence to cut down and lower a bank, 
 and to erect a weir upon their own land, the eflFcct of which was to 
 divert into another channel the water which was requisite for the 
 working of the plaintiff's mill. Subsequently the plaintiff complained 
 to the defendant of the injurious effects of the weir, and brought an 
 action upon their refusal to remove it and restore the bank to its ancient 
 height ; but the Court of Common Pleas considered that the operation 
 and effect of the licence after it had been completely executed by the 
 defendants, Atas sufficient, without holding it to convey any interest in 
 the water, to relieve them from the burthen of restoring to its former 
 state what has been done under the licence, although such licence was 
 countermanded ; and that consequently they were not liable to an action 
 as wrong doers, for persisting in such refusal. 
 
 His lordship observed, " This is not a licence to do acts which con- 
 sist in repetition, as to walk in a park, to use a carriage-way, to fish in 
 the waters of another, or the like, which licence being countermanded 
 the party is but in the same situation as he was before it was granted ; 
 but this is a licence to construct a work which is attended with expense 
 to the party using the licence ; so that after the same is countermanded, 
 the party to whom it was granted may sustain a heavy loss. It is a 
 licence to do something that in its own nature seems intended to be 
 permanent and continuing ; and it was the fault of the party himself,
 
 74 CLAIM TO SPEING OF WATEE. 
 
 if he meant to reserve the power of revoking such licence after it was 
 carried into clfect, that he did not expressly reserve that right when he 
 granted the licence, or limit it as to duration. Indeed, the person who 
 authorizes the weir to be erected, becomes in some sense a party to the 
 actual erection of it, and cannot afterwards complain of the result of 
 an act which he himself contributed to effect. Upon principle, there- 
 fore, we think the licence in the present case, after it was executed, was 
 not couutcrmandablc by the person who gave it, and consequently that 
 the present action cannot be maintained. And upon authority this case 
 appears to be already decided by that of Winter r. BrochceU, which rests 
 on the judgment in ]yehh v. Paternoslcr. "We have no reason to doubt 
 the authority of that case, confirmed as it has been by the case of 
 Taylor v. Waters in this Court, and recognized as law in the judgment 
 of Mr. Justice Bayteij in the case of Hew tins v. Shipjxim.'" 
 
 In Coclcer v. Couycr the plaintiff, a brewer, claimed to bo entitled to 
 the benefit of certain water arising from a spring in defendant's close, 
 and flowing through a drain that he had cut, with the verbal consent of 
 the then tenant and the defendant. It was ruled that he could not 
 recover, and that a verbal licence was not sufficient to confer an casement 
 of having a drain in the land of another, to convey water, and that such 
 licence may be revoked though it has been acted upon. The Court of 
 Exchequer considered " that with regard to the question of licence, the 
 case of Hctclins v. Shippam is decisive, to show that an easement like 
 this cannot be conferred unless ly deed, nor has the plaintiff acquired 
 any other title to the water. In order to confer a title by possession, 
 it ought to appear that he has enjoyed it for twenty years, whereas here 
 he had only done so for eighteen. The mere entry into the close of 
 another, and cutting a drain there, and conveying water from a spring 
 rising there, cannot confer a title." Where the owner of-M:wo or more 
 adjoining houses sells one of them, the purchaser of such house is, 
 without any exj)rcss reservation or grant, entitled to the henefit of all drains 
 from his house, and is, on the other hand, subject to all the drains 
 necessary for the enjoyment of the adjoining house. Such necessity is 
 to be considered with reference to the time of the conveyance as matters 
 then stood, without alteration, and without reference to whether any 
 other outlet could be made for the drainage. And ^xt curiam, " It was 
 the defendant's own fault that he did not ascertain what easements the 
 owner of the adjoining house possessed at the time of the purchase." 
 {Pyer v. Carter.) 
 
 A clause in a lease of land from the plaintiff to the defendant re- 
 served to the plaintiff, in Lee y. Stevenson, power to enter upon the 
 demised land, and to dig and make a covered sewer or watercourse
 
 EXCLUSIVE RIGHT TO SEWER. 75 
 
 through it, in order to convey the waste water from the premises of the 
 plaintiff to the river Witham. In pursuance of this power, the plaintilf 
 did make a covered sewer across the demised land, after which the 
 defendant made a drain from his own premises into the plaintiff's 
 sewer, and through an opening which he made in it, sent in water, &c. 
 from his own premises ; and it was held by the Court of Queen's Bench 
 that the plaintiff was entitled to recover, as by a grant he had a right 
 to the exclusive use of the sewer which he had made under the power 
 reserved to him. And per Curiam, " A man cannot derogate from his 
 own grant. If the grantee had made a sewer of iron, he would liave 
 done no more than he had a right to do under the grant. It is really and 
 substantially the grant of a tube, and from the very nature of the grant, 
 it would appear to be exclusive. Chetham v. Williamson, and Doe v. 
 Wood are distinguishable. As soon as the minerals were detached they 
 belonged to the person who had the new right, and as the plaintiff had 
 a mere licence to get minerals, he had no right to say that that which 
 had been taken was his ; but semhie, he would have had a right of 
 action at the moment the minerals were taken away." (ib.) 
 
 The discussion of Sharp v. Waterhouse and Calvert, in the Court of 
 Queen's Bench, was brought to a question upon the construction of the 
 deed, and whether the covenant ran with the land. The deed between 
 Sharp and the defendants recited that the former was seised of three 
 closes, and that the defendants were the proprietors of a mill and dye- 
 house, from which was produced dye- water and soke, and that defen- 
 dants had agreed with Sharp for leave to make a reservoir in L close 
 for the reception of such dye-water and soke, in order to filter the same, 
 and also a sough or drain for carrying it away from the reservoir ; and 
 in consideration of the premises, and in consideration of being supplied 
 by defendants with pure water, and of receiving for his own use the 
 sediment which might be found in the reservoir and sough, and of the 
 privilege of using such dye-water and soke for manuring his lands, 
 Sharp gave licence to defendants to use the said reservoir and sough, 
 and agreed that he would cleanse the said reservoir, when neces- 
 sary. There was a covenant by defendants with Sharp, his heirs and 
 assigns, that ihey would at all times thereafter, at their own expense, 
 supply from their said reservoir, or from some other source, pure water 
 for the cattle of the owners and occupiers for the time being of the 
 three closes, and that it should be lawful for Sharp to cleanse the 
 reservoir, and also the sough or drain, and to take the sediment 
 away therefrom for his and their own use and benefit. In an action 
 of covenant by the devisees of Sharp against defendants for diverting 
 dye-water and soke produced at the mill, it was held, Coleridge J. diss.,
 
 76 rXITY OF OWNERSHIP. 
 
 that tlie (Icctl contaiiicJ only a licence to Sharp to take or use the 
 Avatcr aud soke, and that a covenant by defendants to send down the dye- 
 Tvater and soke from their mill to the land of Sharp conld not be implied. 
 
 In Shnry v. Pigoit the defendant pleaded that the land over which 
 the water ran to a pool in the plaintiff's close, and the close itself, were 
 both part and parcel of the manor of ]\Iarkham, and that Henry VIII. 
 being seised of the said manor in his demesne as of fee, granted the 
 hind over Avliich the water ran to one under whom the defendant 
 claimed, and the question was whether unity of ownership in the king 
 had extinguished the easement. The whole Court agreed that the water- 
 course was not extinguished ; but Doddridge J. said "that a way, if it 
 Avcre a way of convenience, is extinguished, but not a way of necessity." 
 Coihom v. Fiflr, which was one of case for diverting a watercourse, also 
 turned on a unity of ownership. Up to 1811 the plaintiff's garden and 
 an adjoining close, in which a stream took its rise and floM'ed through 
 the garden, were the property of ]\rrs. Holford, and in one possession. 
 About that time the plaintiff purchased the garden and continued to 
 use the water till the obstruction complained of. The defendant sub- 
 sequently purchased the head of water and diverted it. Garrow B. 
 thought that the unitg of oicncrship dcstrogcd the prescrqAive right, and 
 nonsuited the plaintiff, and the Court of Exchequer made a rule for a 
 new trial absolute. 
 
 Baglcg B. remarked in the course of the argument, " A unity of pos- 
 session merely suspends : a unity of ownership would destroy a title by 
 prescription, but here the ]>laintiff had enjoyed the water since 1811." 
 His lordship also seemed to intimate that if the owner of two closes sell 
 one with a run of water upon it, the vendor or any other person claim- 
 ing under him could not obstruct or divert that water ; and in reference 
 to the remarks of the counsel that there were but three ways of acquir- 
 ing a right to the water, viz., by prescription, which is disposed of by 
 tlie unity of ownership, actual grant, which was not produced, or a lost 
 grant, he added there was a fourth, by appropriation, and t.hat according 
 to Becdey v. Shaw, if a man find water running through his land, he 
 may appropriate it, and thus acquire a title to the water. And ^;er 
 Jjord Lgndhvrsf C.B.: "As the possession of the garden had been in 
 the plaintiff since 1811, such possession was evidence of a fee which 
 could only pass by grant, and a grant of the land would carry the water. 
 If the conveyance had been produced, and had been silent as to the 
 water, still the conveyance would have passed the water which flowed 
 over the land. And are we to assume that tiie water was excepted out 
 of the conveyance, merely because the conveyance was not produced ? " 
 Baylnj, B. added, "If T build a house, and having land surrounding it,
 
 BLOCKING UP ANCIENT LIGHTS. 77 
 
 sell the house, I cannot afterwards stop the lights of that house. By 
 selling the house, I sell the easement also. This land is purchased witli 
 the water running upon it, and the conveyance passes the land with tlie 
 easements existing at the time." 
 
 Moore v. Rawson is an authority that stopping up ivindoivs is primd 
 facie an aVatulonment , and that it lies on the owner of the dominant 
 tenement to show something from whence to infer an intention of re- 
 suming the right within reasonable time. This case was relied on for 
 the defendants in Stolcoe v. Singer, where it was held by the Court of 
 Queen's Bench, that if the plaintiff having acquired the right to the 
 passage of light to his windows blocks them up, and the defendant 
 while they are blocked up purchases the servient tenement and com- 
 mences building on it, so as to obstruct the windows if open, where- 
 upon the plaintiff reopens them and brings an action for the obstruc- 
 tion, the plaintiff's right to recover depends upon two points : that he 
 did not so close his lights as to lead the defendants to incur exjjense 
 or loss in the reasonable belief that they had been permanently aban- 
 doned ; nor so as to manifest an intention of permanently abandoning 
 the right of using them. And ^^fv Lord CamphcU C.J. : " The 
 question is not what the party stopping up the windows intended, but 
 what he gave others reason to believe that he was going to do. Sup- 
 posing the facts to be as in Moore v. Baivson, and that in addition 
 the plaintiffs showed by undoubted evidence that the former owner 
 had a lonafide intention of opening a fresh window on a given day, I 
 doubt whether this would entitle the plaintiff to maintain the action." 
 
 In an action for an injury to the reversion, hy ohstructing ancient 
 lights, it was ruled by the Common Pteas, on the authority of Kidgitl v. 
 3Ioore, that it is sufficient for the declaration to show an obstruction 
 which may cause an injury, especially if it be alleged that by means 
 thereof the plaintiff's reversionary estate was injured ; and such de- 
 claration is not bad, because the obstruction is one which is capable of 
 being shown to be only temporary, and not injurious to the reversion. 
 {Metropotitan Association for Improving the Divetlings of the Poor v. 
 Petch.) 
 
 Water as it issues from a wetl or spring, is not to he considered as the 
 produce of the soit, so as to make the right to take it in alieno solo a 
 profit a 'prendre. Such right to use running water (under which descrip- 
 tion the Court of Queen's Bench considered that a spring might fairly 
 be ranked) is an easement only, and may be claimed by custom {Race v. 
 Ward). And 'per Lord Campletl C.J. : " The reason why a profit h 
 prendre cannot be supported by a custom in an indefinite number of 
 people, is that the subject of the profit a j^rendre would in that case be
 
 78 EIGHT TO A WELL. 
 
 liablo to be entirely destroyed. The ai-gmncnt in fi^YOur of the further 
 reason given in Oafeiranrs case, viz., that such a custom could not be 
 realized, applies equally to many kinds of casements by custom. A 
 right to take by custom part of the soil, like sand or clay, or stones, 
 or the produce of the soil, like grass, or turves, or trees, would clearly 
 be bad, for they all come under the category of profit « 2Jrendre, and 
 such a claim which might leave nothing for the owner of the soil is 
 wholly inconsistent with the right of property in the soil. But the 
 spring of water is supplied and renewed by nature ; it must have 
 flowed from a distance by an underground channel ; and when it issues 
 fi'om the ground till appropriated for use, it flows onward by the law of 
 gravitation. While it remains in the field, where it issues forth, in the 
 absence of any servitude or custom giving a right to others, the 
 owner of the field, and he only, has a right to appropriate it, for no 
 one else can do so without committing a trespass ; but when it has left 
 his field he has no more power over it or interest in it than any other 
 stranger." {ii.) 
 
 And where the inhabitants of a township had from time immemorial 
 taken water from a well for domestic purposes, and about fifty years 
 before action the locus m quo was inclosed under a special inclosure 
 act, incorporating the General Inclosure Act then in force (41 Geo. III. 
 c. 100), but neither in the special act nor in the award of the commis- 
 sioners was any mention made of this well, or of any access to it, it was 
 held by the Court of Queen's Bench, on a rule to enter a verdict for 
 the plaintiiF, who had brought an action against the township for 
 breaking his close, that the right to take water from the well was not 
 extinguished by the inclosure ; and that whether the ancient right of 
 access to the well for that purpose was or was not extinguished (and 
 semhk it was not) the inhabitants might in other modes legally get 
 access to the well, so that the fifty years' enjoyment de facto since the 
 inclosure might have a legal origin, and the verdict for the defendant 
 was ordered to stand, {it).) 
 
 According to GatewanTs case, and Grinstead t. Marlow, any mere 
 easernoU can he clamed hy custom. The iidiabitants of a district may, 
 by custom, liave a right to go upon the soil of another to take or to 
 use water. In Weeldy v. Wildman it was decided that inhabitants may 
 liave a right to enter the soil of another to take pot water. Mannrng v. 
 Wasdale, where in the first count of the declaration the plaintiff claimed 
 a right as occupier of an ancient messuage -within the parish of St, Ives, 
 to wash and water his cattle in a certain pond, and also to take and use 
 the water of the pond for domestic purposes for the more convenient 
 use and enjoyment of the said messuage at all times, at his free will and
 
 CLAIM OF EASEMENTS BY CUSTOM. 79 
 
 pleasure ; and in the second, merely as an inhabitant householder of 
 the parish, — decided that such a privilege is not a i^rofd it 2)rendre, but 
 a mere easement. It may be claimed l)y reason of the occupation of an 
 ancient messuage, without any limitation as to the quantity of water 
 taken (/^.). Andj^^r Coleridge J., the right claimed in each count was 
 an easement. Lord Denman C.J. said, "It is not consistent with 
 ordinary language to call the taking of water a profit d, prendre. But 
 assuming it to be so, I cannot see that the declaration here necessarily 
 claims more than enough for the supply of water, for the culinary 
 purposes of the house, and for cattle levant and couchanl on the premises. 
 There is therefore no objection available on general demurrer." It was 
 said, arguendo in Fitch v. Raiding, that a custom to water cattle at a 
 certain watering-place was an easement, and this Avas cited in Blewelt 
 T. Tregonning, and not disputed. In Pain v. PatricJc there is a dictum 
 that a custom alleged by the inhabitants of a vill, or all the parishioners 
 of a parish, for a gateway or Avatercourse, is an easement ; and in 
 Goodag v. Miclictl a wag to a common fountain is mentioned as an 
 easement, claimable for parishioners by custom. 
 
 There cannot he a custom to talce a iwofit in alieno solo. And so in 
 Bleivett V. Tregonning, 3 Ad. & E. 554, the Qaeen's Bench held an 
 alleged custom to be bad for all the inhabitants occupying lands in a 
 district of Cornwall to enter a close and take therefrom reasonable 
 quantities of sand which had been drifted by the wind from the sea- 
 shore. The reason was that the drifted sand had become a part of the 
 close, so that the claim was to take a profit in alieno solo. Lord 
 Denman C.J. observed, " It cannot be said that the inhabitants may 
 take the sand which has drifted at any distance of time, that would place 
 the whole soil at the mercy of any person claiming under the custom." 
 And per Lord Cknnplell C.J. in Race v. Ward : " As to customary rights 
 claimed by reason of inhabitancy, the distinction has always been 
 between a mere easement and a 2^rofit ct 2)rendre. A custom for all the 
 inhabitants of a vill to dance on a particular close at all times of the 
 year at their free will for their recreation has been held good, this 
 being a mere easement {Abbott v. Weeklg) ; but a custom to take as a 
 profit what is valuable would be very injurious to the owner, and of but 
 little benefit to the inhabitants, and is bad. And so we held in Bland 
 V. Lipsconibe, that to a declaration for keeping and entering the plain- 
 tiflf's close, and taking his fish, a custom pleaded for all the inhabitants 
 of the parish to angle and catch fish in tlie locus in quo is bad, as this 
 was a pro/it ci ptrendre, and might lead to the destruction of the subject 
 matter to wdiich the alleged custom applied." 
 
 It was held by Sir TV. P. Wood, V.O. and Bccgleg J., in The Attorney
 
 80 EIGHTS OF OWNER OF SURFACE. 
 
 General v. Maiiliias, that the woodwards or foresters of B walk (the 
 soil of which was in the Crown) within the limits of the Forest of Dean, 
 could not as such have a right to ^-rant to certain persons called " free 
 miners" gales or licences for working stone within B walk, and to 
 take gale I'ents and apply them to their own purposes, without account- 
 ing to the Crown. Independently of statute 1 & 2 Vict., c. 43, which 
 extinguished the right and capacities of free miners, no right could 
 ever have been established by any custom, however ancient, uniform, 
 and clear, to the exercise of the custom as now claimed by the defend- 
 ants, viz., a right in one person to enter upon the soil of another, 
 and to carry away portions of it. Such a right cannot lie estahlished 
 htj prescription, nor by assumption of a lost (jrant ; and a claim which 
 is radically bad in itself cannot be substantiated by any statutes of 
 limitation. 
 
 The right of the owner of the surface to the support of the under- 
 ground strata, under and near to his land, is one of the ordinary natural 
 rights of property incidental to all land, and not an easement or right 
 acquired by grant or otherwise ; and the injury to this right, and not 
 the consequential damage, is the cause of action. Hence the Statute 
 of Limitations runs from the time of the act which ultimately caused 
 the damage, although actual damage did not arise till afterwards, and 
 so it was held by Lord Campbell C.J., Coleridge J., and Erie J., Wight- 
 man J., dissentienle, in Bonomi v. Baclchouse. And per Curiam: "The 
 check upon mining for the protection of the surface is for the advantage 
 of the surface, and that advantage is secured by the decision in 
 IhimpJiries v. Brogden. Tlie surface owner taking that advantage may 
 not unreasonably be held to take it with ordinary legal incidents, and, 
 among others, a liability to be barred by six years from the wrongful 
 act. In case of mining operations, Avhich are a trespass, the statute 
 runs from the trespass, though the party may have been ignorant of the 
 act done. The same rule may with equal justice apply to a surface 
 owner, notwithstanding he may have been ignorant of the violation of 
 the right to support. The right of support which the plaintiffs here 
 claim is a natural right of property to be presumed till, as in Iiowbotham 
 V. Wilson, evidence is given to rebut the presumption ; and that such 
 a right is not to be considered an easement or a servitude arising from 
 grant. But the consequence does not seem to follow, that the Statute 
 of Limitations cannot begin to run for an injury to such a right till 
 there has been an actual subsidence of the surface. With regard to the 
 authorities quoted, JVicklin v. Williams is expressly in point, and the 
 decisions relied upon to show that this is an action for consequential 
 damage complete only upon the subsidence of the surface, may be
 
 CLAIM BY PRESCRIPTION. 81 
 
 distinguished from it," but this judgment was over-ruled (see Law of 
 the Farm, pp. 100, 101). Rowhotham Y.Wilson was directed to show the 
 quahfied right to support by a person who acquired the title to the sur- 
 face soil, subject to a covenant, under which the owner of the minerals 
 might work them without liability to an action for damage by the sinking 
 of the surface. Harris v. Rijclinrj, Humpliries v. Brogdcn, Smart v. Morton, 
 and 7'he Caledonian Railway v. Sjjrott, show what arc the rights of 
 support both subjacent and adjacent existing, of common right, and 
 upon the construction of ordinary grants and exceptions in conveyances. 
 
 The case of Rowl)otJiam v. Wilson was taken to the House of Lords, 
 who affirmed the decision of the Court of Queen's Bench, and it was 
 decided that the " right to work mines is an incident to the grant of 
 mines," that though the covenants could not operate as a release of the 
 general right of a surface owner to the support of the subjacent soil, it 
 did operate as a grant of the right to work the mines, and thereby 
 injure the surface, provided such injury was not the result of negligence 
 or unskilfulness (8 L. C. 348 ; L. J. 30 Q. B. 49). 
 
 In 2 & 3 Will. IV., c. 71 (an act for shortening the time of prescrip- 
 tion in certain cases), it is enacted by sec. 1, that claims to right of 
 common and other 2^>'ofils d j^rcndre are not to be defeated after 30 
 years' enjoyment, by showing only that they were first taken and enjoyed 
 at any time prior to the commencement of such 30 years ; and that 
 after 60 years' enjoyment the right is to be absolute, unless the same 
 was taken and enjoyed by some consent or agreement expressly made or 
 given for that purpose by deed or writing. 
 
 Sec. 2 enacts, " That no claim which may be lawfully made at the 
 common law, by custom, prescription, or grant, to any way or other 
 easement, or to any watercourse, or the use of any water to be enjoyed or 
 derived upon, over, or from any land or water of, &c., when such way 
 or other matter as herein last before-mentioned shall have been actually 
 enjoyed by any person claiming right thereto, without interruption, 
 for the full period of 20 years, shall be defeated or destroyed, by 
 showing only that such way or other matter was first enjoyed at any 
 time prior to such period of 20 years ; but nevertheless, such claim 
 may be defeated in any other way by which the same is now liable to be 
 defeated : and where such way or other matter as herein last before- 
 mentioned shall have been enjoyed as aforesaid for the full period of 
 40 years, the right thereto shall be deemed absolute and indefeasible, 
 unless it shall appear that the same was enjoyed by some consent or 
 agreement expressly given or made for that purpose, by deed or 
 writing." 
 
 Sec. 8 enacts, " That when any land or water upon, over, or from
 
 S-Z CLAIM OF IlIGHT TO EASEMENTS. 
 
 which any sucli way or other convenient watcrconrsc or nsed water 
 shall have been or shall be enjoyed or derived, hath been or shall be 
 held nnder or by virtue of any term of life or any term of years exceed- 
 intr three years from the irranting thereof, the time of the enjoyment 
 of any such way or other matter, as herein last before-mentioned during 
 the continuance of such term, shall be excluded in the computation of 
 the said period of 40 years, in case the claim shall within three years 
 next after the end or sooner determination of such term, be resisted 
 by any person entitled to any reversion expectant on the determination 
 thereof." 
 
 According to 7'/cJrJe v. Broim, 4 Ad. & E. 378, the words, " enjoyed 
 by any person claiminrj rigJiV^ applied to easements in sec. 2 of this 
 statute, and " enjoyment thereof as of rigid," in sec. 5, means an enjoy- 
 ment had 7iot secreih/ or hij stealth, or hj tacit sufferance, or hy permissim 
 aslced from time to time, on each occasion or on many, but an enjoyment 
 had openly, notoriously, without particular leave at the time by a person 
 claiming to use, without danger of being treated as a trespasser, as a 
 matter of right, whether the right so claimed shall be strictly legal, as 
 by prescription and adverse user, or by deed, or shall have been merely 
 lawful, BO far as to excuse a trespass. To a plea of 40 or 20 years' 
 enjoyment of a way, a licence, if it cover the whole time, must be 
 pleaded ; but a parol or other licence given and acted on duriny the 
 40 or 20 years, may be proved under a general traverse of the 
 eujojmcnt as of 7-iyht, and this whether such licence be granted for a 
 single time of using or for a definite period (/&.). And semhle that 
 where issue is joined on the allegation of an interruption acquiesced in, 
 the party alleging the interruption having proved a non-user during 
 part of the time, may, in order to show that such non-user was not a 
 voluntary forbearance, give evidence that two years before the non-user 
 commenced, the party claiming the way paid a consideration for being 
 allowed to use it (ib.). 
 
 In Beasley v. Clarice, 2 N. C. 705, the Court of Common Pleas upheld 
 the construction put upon the 5th sec. in Tickle v. Broivn, and ruled 
 that under a plea denying that the defendant had used the way for 
 40 years, as of right and without interruption, the plaintiff is at liberty 
 to show the character and description of the user and enjoyment of the 
 way during any part of the time, as that it was used by stealth, or in 
 the absence of the occupier of the close, and without his knowledge, or 
 that it was merely a precarious enjoyment by leave and licence, or any 
 other circumstances, which negative that it is a user or enjoyment 
 under a claim of right. Monmrmthshire Caned Conqmny v. Harford, in 
 the Court of Exchequer, is another authority for the same construction
 
 CONTINUOUS ENJOYMENT OF EASEMENT. 83 
 
 of the act. So in Onghy v. Gardiner it was decided that the enjoyment 
 of an casement as of right for 20 years next before the commence- 
 ment of the suit, within tiie stat. 2 & 3 Will. IV., c. 71, means a con- 
 tinuous enjoyment, as of right for the twenty years next before the 
 commencement of the suit, of the easement as an easement, without 
 interruption, acquiesced in for a year. It is therefore defeated by 
 unity of possession during all or part of the 20 years, and such 
 unity of possession need not be replied specially under the 5th section. 
 Here the defendant in support of his plea proved that about 40 years 
 ago the close now called the Click Head Coppice was a hop-yard, and 
 that at that period hops used to be carried thence over the plaintiff's 
 two closes to the highway, and also that once in every six or seven years 
 hop-poles were carried across them to and from the hop-yard. This use 
 of the premises had, however, long ceased, and the hop-yard was after- 
 wards planted as a coppice, and it appeared that for many years, down 
 to a period of about 15 years before the commencement of the suit, 
 all the three closes had been occupied together : from that period to the 
 commencement of the action the defendant proved a user of the way 
 for all purposes. The plaintiff objected that under these circumstances 
 the plea under the statute was not sustained, for that there had not 
 been an enjoyment as ofriglit, i.e., adversely to the owner and occupier 
 of the closes, over which the way was claimed, for the full period of 
 20 years next before the suit. 
 
 A verdict was found for the defendants, leave being reserved by 
 Patteson J. to the plaintiff to move to enter a verdict for nominal 
 damages. The Court of Exchequer gave the defendant leave to amend 
 by pleading the right immemorially. Parlce B. said, " The enjoyment 
 of the easement must be continuous, and the Court has already inti- 
 mated its opinion to that effect, in tlic case of The llonmouthshire 
 Company v. Harford. That an enjoyment must be of an easement, as 
 such, is a matter on which we feel no difficulty ; and the Court has 
 already put this construction on the act, after some consideration in 
 the case of Briyht v. WaUccr, though the precise point was certainly 
 not in judgment. As to tlie question, whether the proof of unity of 
 possession is admissible under the traverse of the plea, no doubt can 
 be entertained, since the decision of the case of The Monmouthshire 
 Compcmy v. Harford, and its confirmation by the Court of King's 
 Bench in Ticlcle v. Brown, and by the Court of Common Pleas in 
 Beaslcy v. Clarice. The ' simple fact of enjoyment,' referred to in the 
 5th sec, is an enjoyment 'as of riyht^ and proof that there was an 
 occasional unity of possession is as much in denial of that allegation 
 as the occasional asking permission would be." And so it was decided 
 
 G 2
 
 84 PROOF OF USER. 
 
 by the Coui-t of Common Pleas in BattisliiU v. Read that the enjoyment 
 of an easement as of right, for 20 (or 40) years next before the com- 
 mencement of tlie suit, within stat. 2 & 3 Will. IV., c. 71, means a 
 conlinuous enjoyment, as of riylit, for 20 (or 40) years next lefore the 
 eommoncoment of the snit, of the easement as an easement, withont 
 interruption, acquiesced in for a year ; and such right is defeated by 
 unity of possession during all or part of the period of enjoyment, 
 though such unity of possession has its inception after the completion 
 of the 20 (or 40) years. 
 
 In Clayton v. CorJjij the Queen's Bench considered Ongley v. Gar- 
 diner decisive on the point, that unity of possession was receivable in 
 evidence under traverse of the first plea (which pleaded the enjoyment 
 of a right by the defendant to dig clay for 60 years in the locus in quo 
 for the use of the kiln), because it went to show that the enjoyment 
 •was not as of right. And in a plea under this statute it is sufficient to 
 allege that the user had existed for 40 years lefore the commencement 
 of the suit, and it need not be alleged to have been for 40 years before 
 the act complained of in the declaration ( Wright v. Williams) ; and a 
 replication of a life estate to a plea of enjoyment for 40 years under it, 
 must shoW' that the plaintiff is the person entitled to the reversion ex- 
 pectant on the determination of such life estate {ih.) A plea of 20 
 years' enjoyment of a way, under stat. 2 & 3 Will. IV., c. 71, s. 2, must 
 be supported by user for that period down to the commencement of the 
 action {Parlccr v. Mitcltcll) ; and proof of user commencing 40 years 
 ago, but discontinued four or five years before the commencement of 
 the action, is insufficient {ih.). And to support a plea framed on this 
 section, of a right of way enjoyed for 40 years, evidence may be given 
 of a user for more than 40 years (Lawson v. Langley). When an 
 easement has been enjoyed for 19 years and a fraction, and is then in- 
 terrupted by the owner of the soil, the easement may still be acquired 
 under this statute at the end of the twentieth year ; for the interruption 
 to defeat 20 years' user must have been acquiesced in or submitted to 
 for a whole year {Flight v. Thomas). And as to pleading 20 years' 
 possession of a mixen, see another case between the same parties (10 
 Ad. & El. 59). 
 
 Warlurton v. Parlce was a case of replevin for taking the plaintiff's 
 cattle. To an avowry, damage feasant, plaintiff pleaded in bar, under 
 the above statute, a user for 30 years as of right, and also of GO years 
 as of right, of common of pasture over the locus in quo. At the trial 
 the fact of user by the plaintiff and other occupiers of his farm was 
 proved ; but it appeared that S., from whom the ]»laiutiff and defend- 
 ant derived their title, was for more than GO years before, and until
 
 EIGHT OF PASTURE. 85 
 
 within 30 years, seised in fee of the plaintiff's farm, and during the 
 same period had an estate for life in the land over which the right of 
 common was claimed, bnt never had actual possession of the dominant 
 tenement except by tenants. More than 30 years before the action he 
 joined a remainderman, in a conveyance of the servient tenement to 
 make a tenant to the proecipe for the purpose of suffering a recovery 
 in order to raise money on mortgage ; but no recovery was suffered, 
 and S. continued possessed until 28 years before the action, when the 
 property was sold, and all community of title ceased. It was held by 
 the Court of Exchequer that although there was no unity of seisin to 
 extinguish an easement or prevent its existence, the facts precluded an 
 enjoyment as of right within the meaning of the statute. 
 
 In Mill (claimant) v. The Commissioner of the New Forest (objector), 
 an allotment was made of waste land to the claimant under an in- 
 closure act passed in 1810, in respect of which he claimed a right of 
 common of pasture in the waste lands, and a right of common of mast 
 in the time of pannage for all hogs and pigs ringed, levant and conchatif, 
 in the open woods of the New Forest, showing an enjoyment for the full 
 period of 30 years as of right, and without interruption, mentioned in 
 2 & 3 Will. IV., c. 71, s. 1 ; and it was held by the Court of Common 
 Pleas, that the claim might be defeated by showing the commencement 
 of the enjoyment, and that by reason of the statutes 9 & 10 WiU. III., 
 c. 36, s. 10. and 1 A^me, slat. 1, c 7, s. 5, the right claimed could not 
 have had any legal origin in a grant from the Crown. Jervis C.J. 
 observed, " The statute 9 & 10 Will. III. c. 36, in eff"ect, says that no 
 right of common shall be created over the New Forest. Lord Tenter den's 
 act clearly was not intended to repeal that, and to permit such a right 
 to be acquired by 30 years' enjoyment. But assuming that Lord Ten- 
 terden's act does apply, still the claim cannot be supported. It is not 
 sought to be defeated or destroyed by showing only that the right, 
 profit, or benefit was first taken or enjoyed at any time prior to the 
 period of 30 years ; but by showing that it never had any legal exist- 
 ence. I do not stop to inquire whether or not there could be a right of 
 common as appurtenant to common. If it could exist in point of law, 
 it is untrue in point of fact to say that the right existed prior to 1810, 
 because there was no allotment until after that date. We must, there- 
 fore, take it that the enjoyment of the right claimed commenced after 
 the year 1810. Here, then, we have a common inclosed, which could 
 not carry common. There could therefore be no prescription, nor could 
 there be any grant, seeing that the Crown is by the statute incapacitated 
 from making a grant. The effect of the argument on the part of the 
 claimant, is, that you are to get indirectly from the Crown, through the
 
 S6 IMMEMOEIAL EIGHT OF WAY. 
 
 laches of its officers, that which the Crown itself could not confer 
 directly. I am clearly of opinion that Lord TenterderCs act does not 
 give the claimant the right he claims." And per Cresswell J. : " It 
 seems to be imagined that because you caunot defeat a claim which 
 may be lawfully made at the common law, by custom, prescription, or 
 grant, to any right of common or t)tlicr profit a prendre, by showing 
 onJi/ that such right or profit was first taken or enjoyed at any time 
 l>rior to the period of 30 years, therefore you cannot defeat it all. I do 
 not find that stated in Lord TenterderCs act. There is no attempt in 
 this case to defeat the claim by showhig only its origin, but by showing 
 that it never could have had a legal origin." 
 
 Under 2 & 3 Will. IV., c. 71, s. 2, the privilege of washing away sand, 
 stone, and rubble, dislodged in the necessary working a tin mine, and 
 of having the same sent down a natural stream, running through the 
 plaiatift''s laud, may be the subject of a grant, and may be pleaded as 
 a prescriptive right to a declaration charging the defendants with 
 throwing such stone, sand, and rubble into the stream, and thereby 
 filling up its bed within the plaintiff's land, and causing the water to 
 flow over it {Carhjon v. Lovcring). Such privileges may also be well 
 pleaded as a local custom {;ib.). And see Murgatroijd v. Rolinson, 
 where it was doubted by the Court of Queen's Bench, whether if a 
 claim had been sufficiently alleged in the defendant's plea to deposit 
 cinders on the plaintiff's part of the bed of the river Calder, it could be 
 considered as a valid claim to an easement within the meaning of the 
 same section. 
 
 An immemorial right of way is not lost hg non-user for upwards of 20 
 years, the user having been discontinued merely by reason of the party's 
 having had a more convenient way {Ward v. Ward) ; and per Alderson 
 B. : *' The presumption of abandonment cannot be made from the mere 
 fact of non-user ; there must be other circumstances in the case to raise 
 that presumption. The right is acquired by adverse enjoyment. The 
 non-user, therefore, must be the consequence of something which is 
 adverse to the user. Here the owners of the Stubbing Pits did not use 
 the way in question, for the simple reason that they had a more easy 
 and convenient means of access to that part of their property. If the 
 owner of that close were now precluded from recovering the original 
 right, he would be without any means of access to his property." And 
 per rattcson J.: "If there be 10 years' enjoyment of a right of way, 
 and then a cessation under a temporary agreement for another 10 years, 
 yet this may be a sufficient enjoyment of the old right for 20 years to 
 make it iudefca-sible under Stat. 2 & 3 Will. IV., c. 71 ; for the agree- 
 ment to suspend the enjoyment of the right does not extinguish, nor
 
 ANNEXATION OF NEW BUETHENS TO LAND. 87 
 
 is it inconsistent with the right. So if instead of the direct path from 
 A to B, another track over the plaintiff's land from A to C, and thence 
 to B, had been substituted by a parol agreement of the parties, for an 
 indefinite time, yet the user of this substituted line may be considered 
 as substantially an exercise of the old right, and evidence of the con- 
 tinued enjoyment of it." {Payne v. Sheddcn.) And a parol agreement 
 for the substitution of a new way for an old prescriptive way, and a 
 consequent discontinuance to use the old way, afford no evidence of an 
 ahandonmmt thereof (Lovell v. Smith). But an obstruction, in its 
 nature permanent, which injures a right of way, if acquiesced in for 20 
 years, becomes evidence of a renunciation and abandonment of the right 
 of way. That is the ground upon which a reversioner is allowed to 
 bring his action for an obstruction apparently permanent, to lights and 
 other easements, which belong to the premises (Bower v. Eill) ; and see 
 Jesse V. Gifford; and Littkdale J.'s judgment in Moore v. Eawson, on 
 the material difference between the mode of acquiring a right of common 
 or of way, and a right to light or air ; the latter of which is acquired 
 by mere occupancy, and the former only by user accompanied with con- 
 sent of the owner of the land (8 B. & C. 339). 
 
 It is not in the power of a vendor to create any rights not connected 
 with the use or enjoyment of the land, and annex them to it ; nor can 
 the owner of land render it subject to a new species of burthen so as to 
 bind it in the hands of an assignee. Cresswell J. said, " This principle 
 is sufiicient to dispose of the present case. It would be a novel incident 
 annexed to land that the owner and occupier should, for purposes 
 wholly unconnected with that land, and merely because he is owner 
 and occupier, have a right of road over other land. And it seems to 
 us that a grant of such privilege or easement can no more be annexed, 
 so as to pass with the land, than a covenant for any collateral matter " 
 (Smitli V. Aclcroyd) ; and per Lord Brougliam C. in Kcippd v. Bayley : 
 " The covenant (that is such as will run with the land) must be of such 
 a nature as 'to inhere in the kmd,' to use the language of some cases ; 
 or ' it must concern the demised premises, and the mode of occupying 
 them,' as it is laid down in others : ' it must be qiwdammodo annexed 
 and appurtenant to them,' as one authority has it ; or as another says, 
 * it must both concern the thing demised, and tend to support it, and 
 support the reversioner's estate.' Incidents of a novel kind cannot be 
 devised and attached to property, at the fancy or caprice of any owner." 
 
 " A ivay of necessity is when there be but one road to a place, and 
 no other way of going " (Willes, 71) ; and in Shury v. Piyott, a way to 
 church or market is classed under this head. And per Parlie B. : " If 
 a way granted by a lease cannot be used, by reason of its passing over
 
 8S WAY OF NECESSITY. 
 
 the land of third persons, and there is no other way to the lessee's 
 house, he is entitled to a way of necessity to the nearest public high- 
 way by the shortest line across the grantor's land; and the law is that 
 the grantee of a private way is to make it" {Oshorn v. Wise). It cannot 
 be pleaded generally, without showing the manner in which the land 
 over which it is claimed is charged with it {Bullnrd v. Harrison). A 
 man cannot prescribe for a way or other easement over his own soil, for 
 the two rights are perfectly inconsistent, and even a way of necessity 
 cannot be so claimed {Larrjp v, PiU). If the origin of a way of necessity 
 cannot any longer be traced, but the way has been used without inter- 
 ruption, it must then be claimed as a way either by grant or prescrip- 
 tion, according to the circumstances of the case. Where the fact is, 
 that there existed at one period a unity of possession, it must then be 
 claimed as a way by grant (Williams n. 1 Saund. 323 a). But where 
 there has been no unity of possession, and the way has been used imme- 
 morially, it must then be claimed as a way by prescription {Keijmrr v. 
 Summer). TJmt unity of jjossession exfinguislies a presaijML'e rigid of 
 irmj, see Wright v. Rattray, and Hinchcliffe v. Earl of Kinnoul. A 
 unity of possession of the land a qua and of the land in qua an ease- 
 ment exists, does not extinguish but only suspends the easement, where 
 the party is seised in fee of the one parcel and possessed for the residue 
 of a term of the other {Thomas v. Thomas, 2 C. M. & E. 34). 
 
 A way of necessity exists after unity of possession of the close to 
 which, and the close over which, it leads, and after a subsequent sever- 
 ance ; hence, if a person purchases close A, with a way of necessity 
 thereto over close B, a stranger's land, and afterwards purchases close 
 B, and then purchases close C, adjoining to close A, and through which 
 lie may enter close A, and then sells close B, without a reservation of 
 any way, and then sells close A and C, the purchaser of close A shall 
 nevertheless have the ancient way of necessity to close A, over close B 
 (Bucksby V. Cotes). 
 
 In Holmes v. Goring, Best C. J. thus stated the law as to a way of 
 necessity: "On the part of the plaintiff the case has been put on its 
 right ground. If I have four fields, and grant away two of them, over 
 which I have been accustomed to pass, the law will presume that I 
 reserve a right of way to those I retain; but what right ? the same as 
 existed before ? No : the old right is extinguished, and the new right 
 arises out of the necessity of the thing. The passage which has been 
 cited from 1 Wms. Saunders, 323, note 6, contains a complete answer to 
 the argument on the part of the delcndant : ' A way of necessity, when 
 the nature of it is considered, will be found to be nothing else than a 
 way by grant ; ' but a grant of no more than the circumstances which
 
 WAY OF NECESSITY. 89 
 
 raise the implication of necessity, require should i^ass. If it were otlier- 
 wise, this inconvenience might follow, that a party might retain a way 
 over 1000 yards of another's land, when by a subsequent purchase he 
 might reach his destination by passing over 100 yards of his own. A 
 grant, therefore, arising out of the implication of necessity cannot be 
 carried fartlier than the necessity of the case requires, and this principle 
 consists with all the cases which have been decided. It has been argued 
 tliat the new grant operates as a prevention of the extinguishment of 
 the old right of way ; but there is not a single case which bears out that 
 proposition, or which does not imply the contrary. Serjeant Williams 
 says, ' Where a man having a close surrounded with his own lands, grants 
 the close to another, tlie grantee shall have a way to the close over the 
 grantor's land, as incident to the grant : for without it he cannot derive 
 any benefit from the grant. So it is where he grants the land and 
 reserves the close to himself.' What way is it the grantee shall have ? 
 not the old, but a new way limited by the necessity " (2 Bing. 76). 
 
 Hence a way of necessity is limited l)ij the necessif/j which created it, 
 and it ceases if at any subsequent period the party entitled to it can 
 approach the place to which it led, by passing over his own land. And 
 where A, the owner of a close within a close of B's, had a prescriptive 
 right of way through B's close, to his own, and 24 years ago B stopped 
 up the old way and made a new one, which A had used ever since, but 
 it also was stopped up by B, it was held in an action by B against A 
 for going over the new way, that A could not justify using it as a way 
 of necessity, but that he should have either gone the old way, and 
 thrown down the inclosure, or brought an action against B for stopping 
 up the old way. The new way was only a way of sufferance during the 
 pleasure of both parties; and B by stopping it up determined his 
 pleasure {Reignolds v. Edwards). Parlce B. thus observed upon Holmes 
 V. Goring, in Proctor v. Hodgson : " The extent of the authority of 
 Holmes v. Goring is, that admitting a grant in general terms, it may be 
 construed to be a grant of a right of way as from time to time may be 
 necessary. I should have thought it means as much a grant for ever, 
 as if expressly inserted in the deed, and it struck me at the time that 
 the Court was wrong." AJdcrson B. also considered that Holmes v. 
 Goring was open to review in a court of error. And per Parke B. : 
 " All ways of necessity arise from a presumed grant, all the precedents 
 allege a grant ; but the lords of the manors are not grantees. Even 
 assuming that escheat is equivalent to a grant, the only ground on which 
 the lord of the manor can claim a way of necessity, is that he has no 
 other way" (10 Exch. 824; 24 L. J. Ex. 195; see also Pearson v. 
 S})encer, 1 B. & S. 571, 584).
 
 00 EIGHT OF WAY. 
 
 A riglifc of way of necessity can only arise ly grant, express or implied 
 (Proctor V. Hoihjson) ; and no right of way of necessity can exist, where 
 the title of the parties is by escheat. It must be shown that the party 
 to whom the hind was granted or escheated, supposing escheat were 
 equal to a grant, had no other way {il)). If one sells lauds, and after- 
 wards the vendee by reason thereof claims a way over part of the 
 l)laintilF's land, there being no other convenient way adjoining, this is 
 a lawful claim because it is a thing of necessity, otherwise he could have 
 no profit of his land {Clarke v. Cogge). And c converso : " If a man 
 hath four closes lying together, and sells three of them, reserving the 
 middle close, and hath not any laud thereto, but through one of those 
 wliich he sold, although he reserved not any way, yet he shall have it as 
 reserved unto him by the law, and there is not any extinguishment of a 
 way by having both lands " (ib.). And jw Lord Kenyon C. J. : If A 
 grants a close surrounded by his other land to B, the law would presume 
 a right of way {Large v. Piit). In Dcnne v. Light, the owner of a piece 
 of arable land lying in Ham Common field, surrounded by land belong- 
 ing to other persons, and to which arable laud there was no apparent 
 road or footway, contracted to sell the land, no mention of a right of 
 way being made in the contract. The purchaser required a right of 
 carriage or roadway, and a good title to such way to be shown, in 
 def\iult of which he refused to complete. The vendor filed a bill for 
 specific performance, which was decreed by V. C. Stuart; but on appeal 
 to the Lords Justices it was held that such a contract could not be 
 enforced against the purchaser without proof of a right of way ; and 
 unless the plaintiff elected to take an inquiry as to the execution of such 
 right the bill must be dismissed with £40 costs. Among the deposi- 
 tions was the evidence of one Davis, Avhose suggestion was, that by 
 non-user or neglect, the owners of the inclosed pieces of land in Ham 
 Common field had lost their right of passing over the neighbouring 
 land, to reach the roadway. It was observed by TimM C. J. in his 
 judgment in Walt is v. Harrison, and Durham and Sunderland Railway 
 Company v. WalJcer, in the Exchequer Chamber, "that a right of way 
 cannot in strictness be made the subject either of exception or reserva- 
 tion ; it is neither parcel of the thing granted, nor is it issuing out of 
 the thing granted : the former being essential to the exception, and the 
 latter to the reservation. A right of way reserved (using that word in 
 a somewhat popular sense) to a lessor, as in the present case, is an ease- 
 ment newly created by way of grant from the grantee or lessee, in 
 the same way as a right of sporting or fishing, which has been lately 
 very much considered in Doe dem Douglas v. Lock, and Wickham v. 
 Uawker;' 7 M. & W. 63.
 
 DEDICATION OF A WAY TO THE PUBLIC. 91 
 
 There may be a dedicalioii of a ivay to tlie public, for a limilcd 2ni.rpose, 
 as for a foot-way, horse-way, or drift-way ; but there cannot be a dedi- 
 cation to a limited j^art of the public, as to a parish. Such a partial 
 dedication is simply void, and will not operate in law as a dedication to 
 the whole public (Foote v. IlicsJcissoi, 11 M. & W. 827). And per 
 ParJce B. : " In order to constitute a \a\\d dedication to the puljlic of a 
 highway, there must be an animus dedicandi, of which the user by the 
 public is evidence and no more : and a single act of interruption by the 
 ownei- is of much more weight upon a question of intention than many 
 acts of enjoyment." It was decided on the authority of this case in 
 Reg. V. Inhabitants of East MarTc, that public user of a road for 50 years 
 is evidence from which a jury may infer a dedication, thougli it may not 
 be clear in whom the ownership of the soil is invested. In Rex v. Petrie, 
 which the Court of Queen's Bench could not distinguish from the above, 
 it was also held that public user of a road for some time is sufficient ^^rma 
 facie evidence of a dedication to the public by an owner of the freehold, 
 and it is not necessary to show by whom the dedication was made. And 
 per Baijleij J. in Harper v. Chartesworth, where a public footway over 
 crown land was extinguished by an inclosure act, but for 20 years after 
 the inclosure took place the public continued to use the way, this user 
 was not evidence of a dedication to the public, as it did not appear to 
 have been with the knowledge of the Crown, who had the riglit of soil. 
 Wood V. Veat is an express autliority to show that the consent of the 
 lessee is not sufficient for that purpose, because it cannot bind the owner 
 of the inheritance. It was there held that the owner of the fee when 
 the lease expired had a right to prevent the public fi'om going along 
 the road, notwithstanding it had been used by the public during the 
 term. In Harper v. Charlesivorth, moreover, there was not sufficient 
 evidence to warrant the conclusion that the road was used with the 
 consent of any person in the occupation of the land (4 B, & C. 57-4). 
 
 A right of ivay for agricultural purposes is a limited and qualified 
 right of way, and does not necessarily confer a right to use such way 
 for general and universal purposes. Therefore it does not follow that 
 because the defendant proves a right to carry corn and manure over the 
 locus in quo, he has a general and unlimited right to carry lime, or the 
 produce of a quarry over it at all times and for all purposes : per Wood, 
 B. {JacJcson v. Staccy). Proof of " a free right of way on foot, and for 
 horses, oxen, cattle, and sheep,'' does not confer a right to lead and carry 
 away manure, for leading implies drawing in a carriage, and the plain- 
 tifPs themselves admitted that they had no right to "lead" in that sense 
 (Brunton v. Hall). The disturbance complained of in this action, was 
 that a person wheeling manure in a wheelbarrow from the plaintiffs'
 
 91 rREScraPTTVE PvTGHt of way. 
 
 premises, nndcr their direction, was prevented from wheeling it through 
 a certain entry by the defendant. CoJn-iiVjo J. said, "If a grant had 
 been put in, confessing a right to ' lead manure,' the term would have 
 been construed according to the usnal mode of leading ; that is, by 
 drawing in a cart. The verdict here if undisturbed would be evidence 
 in a future action of right to lead in that manner." So in Higham v. 
 liahhif, the Court of Common Pleas held that the finding by the jury 
 that the defendant had a limited right of way only for the purpose of 
 carting away timber from the wood to the highway, did not support a 
 ]ilea of a general right of way on foot with horses, cattle, carts, waggons, 
 «tc., at all times of the year at his free will and pleasure, and that the 
 rules of Hilary Term (-1 Will. IV. ss. 4, 5, G) did not admit of their 
 entering the verdict distributive for the defendant on it. 
 
 Evidence of a prcscn'pfire right of way for all manner of carriages does 
 not necessarily prove a right of way for all manner of cattle, but it is 
 evidence of a drift-way for the jury to consider, togetlier with the other 
 evidence, and the extent of the usage is evidence of a right only com- 
 mensurable with the user {Ballard v. Dgson). It was here in evidence 
 that the preceding occupier had been accustomed to drive fat hogs that 
 ■way to his slaughter-house ; and that the plaintiff had been accustomed 
 to drive a cart, the only carriage which he possessed, usually drawn by 
 a horse, but sometimes by an ox, along the passage in question to the 
 barn, where he kept his cart, but there was then no other w'ay to it. 
 He had lately begun to drive fat oxen that way to the premises, for the 
 purpose of killing them there, but there was no evidence of any other 
 usage than this of the way for the cattle. No deed of grant was pro- 
 duced, and the defendant brought no evidence that he had ever inter- 
 ru])ted the occui)iers of plaintiffs' premises in driving cattle there, nor 
 that they had been usually possessed of horned cattle which had not 
 been driven that way, and he admitted that there was sufficient evidence 
 of a right of Avay for all manner of carriages. It was contended for the 
 I)laintilf in replevin, that a way for all manner of carriages necessarily 
 included a right of Avay for all manner of cattle, and therefore proved 
 the prescription. The jury found for the defendant, and a new trial 
 was refused. Heath J. said, " This is a prescription for a way for 
 cattle, and a carriage-way is proved. A carriage-way will comprehend 
 a horse- way, but not a drift- way. All prescriptions are stricti juris. 
 Some prescriptions are for a way to market, others for a way to church, 
 and in the ancient entries, both in Jlasiat and Clift, the pleadings are 
 very particular in stating these claims. Sometimes there is a carriage- 
 way qualified. One claim is remarkable, fugare qiiadraginia averia. 
 The usage then, in this case, is evidence of a very different grant from
 
 WAY FOR FARMING PURPOSES. 93 
 
 that which is claimed, viz., to drive fat oxen, animals dangerons in their 
 nature, and which there might be very good reason to except out of a 
 grant of a way through a closely-inhabited neighbourhood." Chamhre 
 J. differed from the Court in refusing a new trial, and thought that the 
 driving of hogs was very strong evidence of a grant of a way for cattle. 
 " Suppose," said his lordship, " any new species of cattle is introduced 
 into this country, shall the grantees of private ways have no passage for 
 them to their lands ? Is it to be contended, for instance, that no ancient 
 private way in the kingdom can be used for Spanish sheep ? Much of 
 the argument has been built on their being horned cattle. Many heads 
 of kine have no horns, may the grantee drive those ? " A claim of a 
 way for cattle and carts may be proved by showing constant use for cattle, 
 and a user for less than 20 years for carts, the claimant not having 
 possessed carts for the whole period {Dare v. Heathcote, 25 L. J. Ex. 245). 
 
 In Cowling v. Higginson defendant justified his trespass by a plea of 
 user, under 2 & 3 Will. IV. c. 71, of a right of way for 20 years as 
 occupier of a close, for horses, Avaggons, and carriages, at their free will 
 and pleasure. The replication traversed the right, and it w^as held — 
 firstly, that under this issue the plaintiff" might show that the defendant 
 had a right of way for horses, carts, waggons, and carriages, for certain 
 purposes only, and not for all, and was not compelled to new assign, 
 and that he might show that the purpose for which the defendant had 
 used the road, and in respect of which the action was brought, was not 
 one of those to which his riglit extended ; and secondly, that evidence 
 of a user of a road with horses and carriages, iov farming purposes, does 
 not necessarily prove a right of road for all purposes (such, for instance, 
 as leading coal from a mine under defendant's land), but that the extent 
 of the right is a question for the jury, nnder all circumstances. And 
 Lord Macdonald C.B. ruled in Cohl {Cleric) v. Selhj, that where there 
 was a private road through a farm used by the owner of the land, for 
 agricultm-al and other purposes, the parson had a right to use it for the 
 purpose of carrying away his tithes, as long as it existed, although the 
 owner of the road might shut it up by planting trees, or any other such 
 means. But the farmer acting honct fide has a right to alter the line of 
 road for his own convenience, and the tithe-owner must use the road 
 thus substituted {James v. Dods). 
 
 One tcho has a grant of an occupation vay, may declare in case against 
 the owner of the land over which the way leads for obstructing it, 
 although it be proved that the public had used the way without denial 
 for the last 12 years {Allen v. Ormond). And p)er Lord Denman C.J. 
 BiNisi Prius : "There may be an occupation way and a irablic highway 
 over the same road, for it does not on becoming a highway cease to be
 
 9-i OBSTRUCTION OF FOOTWAY. 
 
 an occupation Avay (BroiruJoir v. Tomlinsoii). A person "who prescribes 
 ill a que estate for a private ^Yay cannot justify going ont of it on the 
 ailjoining land, because tlie way is impassable {Bullard v. Harrison). 
 2\tyhr v. Whiichead has settled the distinction, that the right of going 
 on the adjoining land under such circumstances does not extend to 
 private as well as public ways. However, the grantor of a private way 
 may be bound, either by express stipulation or prescription, to repair it. 
 But in an action upon the case against him for neglecting to do so, it is 
 sufBcient to allege generally in the declaration, that he, hy rcasoti of Ms 
 posses.-<ioii of the close in which the way is, oiff/hf to repair it ; and the 
 special matter of the obligation shall be given in evidence on the 
 general issue (Pomfref v. Rkrofi). WJiere flicre was a j^i'l'Hc foolway 
 from one field of the plaintiff's to another, and the defendant obstructed 
 the way by constructing or keeping a reservoir of water on it, whereby 
 the plaintiff and his servants employed in the management of his lands 
 and tending his cattle were obliged to go by a longer route, and their 
 work and labour were necessarily consumed to a greater extent, and the 
 plaintiff was prevented from employing them during such excess as he 
 otherwise would have done, it was held that this was sufficient allegation 
 of peculiar damage to support an action {Blagrave v, Bristol Watcrwm'lcs 
 Company). But it is no ground of action that a person by stopping up 
 on his own land the continuation of a public footway over his neigh- 
 bour's land causes the public to trespass on other parts of his neighbour's 
 land, to his damage, forming a beaten track and wearing off" in a perma- 
 nent manner the grass and herbage from such beaten track (/&.). A 
 man may not plough up a public footpath across his field (2 Rolle Abr. 
 Nusans \) PI.) ; and he must not erect a gate across such footpath (Sir 
 AV. Jones, R. 221). It has also been ruled by Parle J. in Baieman v. 
 Burge, where the plaintiff and defendant owned adjoining lands, and 
 the way had always been a public footway, with a stone wall two feet 
 high across it, that the defendant had no right to remove the stile, and 
 put up a high five-bar gate with a step in its place. " If there had 
 been 20 gates," said his lordship, " across the footway in other places 
 before it, that will not justify you in putting up this one to give people 
 the trouble of getting over it." 
 
 A reversioner cannot maintain an action on the case against a stranger 
 Jor merely entering upon his land held by a tenant on lease, though the 
 entry be made in exercise of an alleged right of way, such an act during 
 the tenancy not being necessarily injurious to the reversion {Baxter v. 
 Tayl(/r). Parhe J. said : " My notion is that there must be some 
 destruction of the land to enable the reversioner to maintain this action. 
 No case has ever gone so far as to constitute a simple trespass, like
 
 FEEE PASSAGE OF AIR TO A WINDMILL. 95 
 
 this, an injury to tlic reversion." IJanle J. thus remarked on tliis 
 case in Knlgill v. Moor : " My brother Parlce does not say that it would 
 not be evidence if the party claimed a right of way, and meant to assert 
 it." And i^cr Mauh J. : " To entitle the reversioner to maintain this 
 action, must not the two things concur, viz., an injury of such a nature 
 as will be presumed to be permanent, and the fact of its being evidence 
 against him on a claim of right" {ib). Crcssicell J. also cited Baxter v. 
 Taylor as one in point, as well as Miimford v. Oxford, Worcester and Wol- 
 verham])to)i Railway Comjiany, in his judgment in Simpson v. Savayc, 
 where it was decided that an action cannot le maintained for an injury to 
 a reversion ivMcJi is not of a permanent nature, although it makes the 
 reversion of a less marketable value (26 L. J. C.P. 50 ; 1 C. B.K S. 347). 
 
 In Kidgill v. Moor the declaration in case by a reversioner alleged 
 that the plaintiff was entitled to a right of way for his tenants over a 
 certain close of the defendant ; and charged that the defendant wrong- 
 fully hclced, chained, shut and fastened, a certain cjcde standing in and 
 across the way, and wrongfully kept the same so locked, &c., and 
 thereby obstructed the way ; and that by means of the premises the 
 plaintiff was injured in his reversionary estate. It was held by the 
 Court of Common Pleas, on a motion in arrest" of judgment, that the 
 declaration was sufficient, inasmuch as such an obstruction 7niyU occa- 
 sion injury to the reversion, and it must be assumed after verdict that 
 evidence to that effect had been given. Cressivdl J. said : " Jackson v. 
 Pesked decides that a delaration of this sort is insufficient unless it 
 contain an averment that the acts charged injured the plaintiff's 
 reversionary interest. That case, however, undoubtedly recognizes the 
 validity of a declaration which contains such an averment, and states 
 facts which may or may not amount to such injury of the reversion. 
 Here the declaration alleges certain things to have been done by the 
 defendant, so as to occasion injury to the plaintiff's reversionary in- 
 terest. I agree with my brother MauJe that that is an allegation of 
 fact, and that wc must take it to have been proved if the facts stated 
 could so operate. It is impossible to say that a gate may not be 
 so fastened as to enure as an injury to the reversion." But qnare 
 per MauJe J. : " Could the landlord bring an action alleging an 
 injury to the reversion, where there has been no actual obstruction 
 of the tenant ? " (9 C. B. 364 ; 19 L. J. C. P. 177). 
 
 Free passage of air to a windmill. It was held in error, affirming the 
 decision of the Court of Common Pleas, that a right of free passage of 
 air is not an easement within the meaning of section 2 of the Prescription 
 Act, 2 & 3 Will IV. c. 71. A grant of a free passage of air to a wind- 
 mill over the soil of another cannot le presumed from 20 years' use of the
 
 96 PRESCRIPTIVE EIGHT TO LIGHT FOR WINDOWS. 
 
 ■windmill, for the pi-csumption of a grant only arises in cases where the 
 owner of the servient tenement had it in his power to prevent the enjoy- 
 ment, and did not ; and it is not practically in the power of an owner 
 of neitjhbouring land to preclude the passage of air to a windmill. And 
 })er Wiiihlman J. : " We think, in accordance with the judgment of the 
 Common Pleas and Chascmore v. Richards (7 H. L. Cas., 349, and 29 
 L. J., N.S., Ex., 81) [see Law of the Farm, pp. 176, 177], that the 
 presumption of a grant from long-continued enjoyment, only arises 
 where the person against whom the right is claimed might have inter- 
 rupted or prevented the exercise of the subject of the jn-oposed (jrant. As 
 was observed by Lord Wenslej/dale, it was going very far to say a man 
 must go to the expense of putting up a screen to window-lights to 
 prevent a light being gained by 20 years' enjoyment " {Webb v. Bird). 
 The ruling of the Court of Common Pleas was affirmed in the Exchequer 
 Chamber (31 L. J. C. P. 335, Ex. Ch.). 
 
 Prescriptive right to light for ivindows. — A and B occupied adjoining 
 houses, as tenants to the same landlord, under long leases, which were 
 made on the same day, and to expire at the same time. B, by building 
 on his own premises, obstructed the access of light to a window in A's 
 house, through which the light had passed without interruption for 
 more than 20 years ; and it was held by the Court of Exchequer 
 Chamber that A, by the 20 years' user, liad acquired a right to the 
 light, and might maintain an action against B for obstructing it, though 
 they occupied these premises as tenants and under the same landlord ; 
 and the observations of Coleridge J. and Cresswell J., speaking of the 
 3rd section of the Prescription Act in Truscott v. Merchant Taglors' 
 Compang (11 Ex., 8G3; and 21 L. J., N.S., Ex., 173), were cited in 
 support of their views. The former learned judge observed : " The 
 third section seems to simplify and almost new found the mode of acquir- 
 ing the right to access of light. It founds it on actual enjoyment for 
 the full period of 20 years without interruption, unless that enjoyment 
 is sliown to have been hy consent or agreement expressly made by deed 
 or writing, thus putting the right on a simple foundation, and with the 
 simplest exception" {Frewen v. FhiUips, 30 L. J. C. P. 35G). 
 
 Ancient windows restored after improper enlargemoit to their original 
 size resume tlieir original easenumt. If ancient windows which look over 
 the land or upon the premises of another are enlarged, and are com- 
 plained of, the Court, upon their being restored to their original dimen- 
 sions, will restrain the owner of the adjoining property from obscuring 
 such restored windows ; and if an owner of land complains of an ease- 
 ment usurped over his property, and delays his application for relief, a 
 court of equity will not interfere until he has established his right at
 
 NEW LTGHTS NOT COR RESPONDING WITH OLD. 97 
 
 law to an abatement. If tlie owner of a tenement has windows looking 
 upon the premises of another, he cannot increase their size or number, 
 or claim more extensive rights. Per Sir J. Romillij M.R. {Cooper v. 
 Huhbuclc, 31 L. J. Ch. 123). 
 
 Twenty years' enjoyment of liyht, how calcuMed. — The period of 
 twenty years' enjoyment, which confers a right to the access of light 
 under 2 & 3 Will. IV. c. 71, s. 3, is, by s. 4, the period of twenty years 
 next before any suit or action wherein the claim to the right was brought 
 into question ; and is not limited to the period of twenty years next 
 before the pending suit or action. Per Erie C.J., WUles J. andi>yfes J,; 
 Williams J. diss, {ih., 31 L. J. C. P. 323). 
 
 Ancient riyhts may he altered, provided they are not made more extensive. 
 — In Turner v. Spooner, the plaintiff was the owner of a house abutting 
 upon a back-yard in the occupation of the defendants, and possessed 
 two ancient lights overlooking such yard, which, for the greater acquire- 
 ment of light and air, he modernized by removiny the old casements, and 
 substitutiny new ones of a liyhter construction, but not extending the 
 aperture occupied by their frames. The defendants then proceeded to 
 erect and glaze with opaque glass a framework close to these improved 
 windows; and a bill was filed for an injunction to restrain such pro- 
 ceedings. It was held by Kindcrsley V.C. that a party possessed of 
 ancient lights has a right to acquire an increased access of light and air 
 if he can do so without altering the aperture, and this does not create a 
 new easement ; that the owner of an ancieut light is entitled to use it 
 in any manner he pleases, by obstructing, opening, or protecting it, or 
 by taking away old window-frames and substituting new ones of a much 
 less size and thickness, so that he does not extend the aperture itself, 
 and that the intrusion upon a neighbour's privacy is not a ground for 
 interference, either at law or in equity {ih., 30 L. J. Ch. 801). 
 
 Neio liyhts not corresimndiny ivith old. — The warehouse of the plain- 
 tiffs, which had ancient windows, having been burnt down, was rebuilt 
 by them. In the new warehouse, the windows were placed in different 
 situations and were of different sizes, and altogether occupied more 
 space than the windows of the old building. Some parts of some of the 
 new windows coincided with some parts of the old, but a greater portion 
 of the old and new windows did not coincide. The defendants, who 
 had premises on the other side of the street, raised their own house, and 
 so obstructed the access of light to the new windows. They could not 
 have obstructed the passage of light to such portions of the windows as 
 were new without at the same time obstructing its passage to such 
 portions of the new windows as were on the sites of the old windows. 
 It was held by the Exchequer Chamber, confirming the judgment of the 
 
 H
 
 9S RIGHT TO DIG BRICK EARTH. 
 
 Coiuraon l^leus on a special case, that the pkiiutiffs, under tliese Circum- 
 stances, could not maintain an action against the defendants for 
 obstructing: the passage of light to their warehouse windows, as no one 
 of the existing windows substantially corresponded with any of the 
 ancient lights ; and per Channell B. and Blackburn J., that it was not 
 necessary in the present case to decide whether there is a right to block up 
 a new window, if it cannot be done without also blocking up an ancient 
 unaltered one. And jwr Curiam : "■ We entirely concur in the judg- 
 ment of Patlerson J., in Bhtnchard v. Brt/dges (4 Ad. & E. 176), that 
 lights in respect of which the right of action is sought to be enforced 
 must be substantially the same as the lights which have been gained 
 by user or grant, and that no new light can be substituted without the 
 consent of ihe owner of the servient tenement " {Hutchinson and Others 
 V. Copestahe and Otheis, 31 L. J. C. P. 19 Ex. Ch.). 
 
 Bight of digging for hrick earth to he talcen into consideration under the 
 General Inclosure Act. — Where proceedings were taken under the 
 General Inclosure Act, 8 & 9 Vict. c. 118, for the inclosure of certain 
 land at the instigation of persons who claimed rights of common over 
 the same, and the owner of such land was interested therein in respect 
 of brick-earth which he could get from it without interfering with the 
 rights of common, it was held that the interest of such owner in respect 
 of the brick-earth ought to be taken into consideration by the Assistant 
 Commissioner in calculating the interests of the assenting and dissenting 
 parties, under sec. 27, notwithstanding all " mines, minerals, stones, and 
 other substrata " had been expressly reserved to such owner by the 
 provisional order; and the Court granted a prohibition against the Com- 
 missioners proceeding with the inclosure without the consent of such 
 owner, or taking the value of his interest in the brick-earth into account 
 in reckoning the assents and dissents {Church v. Inclosure Commissioners). 
 
 Custom to dig clag in a cojnjliold not unreasonable. — A custom in a 
 manor that copyholders of inheritance may, without licence of the lord, 
 break the surface and dig and get clay without stint out of their copy- 
 hold tenements, for the purpose of making bricks for sale oif the manor, 
 is good in law. This was decided in error on a bill of exceptions to the 
 ruling of Bgles J., and the judgment of the Exchequer affirmed. It 
 was contended that the custom to take the soil and surface without stint 
 tends to the destruction of the inheritance, and is unreasonable and 
 void in law, but per Curiam .- " We are, however, unable to draw any 
 sound distinction between a custom lor copyholders to take all the 
 timber or trees, or all the minerals, in their cop}h()lds, and such a 
 custom to take clay as that in question. It aj)poars to us that the 
 cases of jJrofil ajjrendre or easement on the waste of the lord or in alieno
 
 DEFINITION OF SURFACE DAMAGE. 99 
 
 solo, liave no application to the present question. A copyholdei- may, 
 by custom, not only have a possessory but a proprietory right in the 
 trees and minerals in his copyhold tenement. In the case of minerals, 
 the taking them is, in effect, a taking of a portion of the corjjus of the 
 copyhold tenement. There appears to be no doubt but that a copy- 
 holder of inheritance may not only, by custom, work old mines already 
 opened, but that he may also by custom dig within his tenements for 
 new ones, and, if successful, work them. The case of the Bishop of 
 Winchester v. Knight (2 Ld. Eaymond, 1056 ; and 1 P. Williams, 40G), 
 [see Laiv of the Farm, p. 307] is an authority for the proposition that 
 by custom a copyholder of inheritance may open and work new mines. 
 GiWert C.B., in his treatise on tenures, p. 827, says that a copyholder 
 of inheritance cannot without a custom dig for mines ; obviously mean- 
 ing that with a custom he could. In Scriven on Cojnjholds, p. 420, it is 
 said that by custom a copyholder of inheritance may be entitled to the 
 trees and mines in his copyhold. The plaintiff's counsel in his argu- 
 ment did not doubt but that a custom for a copyholder to have and 
 work quarries and mines might be good, but contended that the sur- 
 face must be left. But no case was cited to warrant such a con- 
 clusion. It may l)e that the mine or minerals, or a quarry of stone, 
 might occuiDy the whole surface of the particular copyhold tenement, 
 and that a general right to take stone or minerals would necessarily 
 involve the taking of the surface. But in the present case there is 
 nothing to show that the taking the clay would necessarily involve the 
 taking of the surface. All the clay might be so situate as to be capable 
 of being got at, as coals or other minerals. But however that may be, 
 we think there is nothing to show that such a custom as that in ques- 
 tion is unreasonable or bad in point of law ; and we may further ob- 
 serve that it is said, in Scriven on Copyholds, p. 26, that a custom is 
 not unreasonable because it is prejudicial to or diminishes the lord's 
 casualty profit as to escheat. For these reasons, we think the defend- 
 ant is entitled to our judgment " (JIarquis of SalisJ)ury v. Gladstone). 
 DefiniUon of surface damage. — The words "surface damage" in the 
 Forest of Dean Act (1 & 2 Yict. c. 43, s. 68) do not include damage 
 to buildings on the land, by reason of the subsidence occasioned by 
 underground workings. This " surface damage " is damage to the 
 mere surface, injury to the crops, or destruction of the grass, com- 
 pensation for which can be ascertained by computation, and deter- 
 mined upon by the gaveller. To cause a subsidence of the soil, par- 
 tially or wholly destroying the future fertihty of it, is not a surrace 
 damage ; it may be damage to the hoase and land, but it is not sur- 
 face damage {Allaway v. Wagslaff). 
 
 H 2
 
 100 DAMAGE TO SUKFACE. 
 
 Support to taiul from drownnt mine— Mi\\o\\i^\i as between conter- 
 minous owners the lateral support of a neighbour's soil can only be 
 claimeil for the surface of the land in its natnral state, yet where a 
 person sells land to another, to be used for an express purpose, he will 
 not be allowed to derogate from his own grant by doing anything on 
 tlie adjacent soil, which unfits the land sold for the purpose for which 
 it is sold ; and it makes no dillerence that the land so sold was taken 
 under compulsory powers; but the purchaser is not entitled to any 
 additional supj^ort afforded by the accidental state in which the adja- 
 cent soil ha[>pens to be, at the time of the purchase, however long it 
 may have Ijeen in that state prior to the purchase. Thus where the 
 owner of a drowned mine sold land to a railway company for the pur- 
 pose of building a bridge, and the land sold derived additional sup- 
 port from the water in the mine, it was held that the railway company 
 were not entitled to restrain him from pumping out the water, and 
 restorhig the mine to a working condition, although the mine had 
 continued in its drowned state, and the works had been abandoned for 
 a period of forty years prior to the purchase {North Eastern Railway 
 Company v. Elliot). 
 
 Rigid of railway to support from ailjoining lands. — A railway company 
 is entitled to the vertical and lateral support of the adjoining lands of 
 the proprietor from whom the lands or casements required for the rail- 
 way were purchased; and such i)ro[)rietor is not at liberty to work the 
 minerals adjoining the railway in such a way as to cause damage to it; 
 and in the absence of statutory provisions he cannot compel the com- 
 pany to purchase them {North Eastern Railway Comiiany v. Crosland). 
 Title, of, owner of ancient house to lateral support from adjoininy 
 land. — '^tanble hy Wood V.C. : " The owner of an ancient house is en- 
 titled to the lateral support of his neighbour's land, as well for the house 
 as for the surface of tlie soil itself" {Hunt v. Peeh). 
 
 Statute of limitations in case where damage has been done to the surface 
 by mininy. — The judgment in Bonomi v. Backhouse, (27 L. J. (N. S.) 
 Q. B. 378,) and that in Nicldin v. Williajns (10 Ex. 259), [see Law of 
 the Farm, pp. 80, 81,] on which it w-as based, were over-ruled in Error. 
 In the former, the defendant, owner of certain mines in 1849, with- 
 drew the pillars of coal which had been left as supports to roofs in 
 some of the old workings. The consequence was that the roof of the 
 mine fell, the adjacent strata subsided one after the other in slow suc- 
 cession, and at last, in 1854, the support of the intermediate strata 
 having given way, the plaintiff's land, which was 280 yards off de- 
 fendant's mines, sank, and tlic house on it was injui-ed. The plaintiff 
 brought his action in 185G. It was ultimately held, reversing the
 
 EVIDENCE OF EXISTENCE OF HIGHWAY. ]01 
 
 judgment of the Queen's Bench in tliis case, and Nkldui v. Williams 
 as well, that the Statute of Limitations was no bar to the action, as no 
 cause of action arose to the iDlaintififs by the mere excavation by the 
 defendant of the pillars of plaintiff's coal in his own land, so long as it 
 caused no damage to the plaintiffs, and that the cause of action firs^ 
 accrued when the plaintiffs received actual damage. 
 
 Compensation for Injury to Buildings hg Subsidence of Soil. — When 
 the working of mines, in however careful a manner, has occasioned 
 the subsidence of the land of another, although not immediately ad- 
 joining, damages may be recovered in respect of injury to buildings 
 thereon erected or enlarged within twenty years, provided their weight 
 did not occasion or contribute to the subsidence; and the action is 
 maintainable for damage to the possession and the reversion {Earner 
 and Strogan v. Knoivles). 
 
 Right of soil to supjwrt for additional weight of huildings. — A right 
 to support for additional weight of buildings may be acquired as an 
 easement by twenty years of uninterrupted enjoyment {Partridge v. 
 Scott, 3 M. & W. 220), and after twenty years a house acquires a 
 right to the lateral support of soil round it [Browne v. Rohins). 
 
 Three-fourtlis of a right of common. — A plea, of prescriptive right to 
 three-fourths of a right of common of pasture for one cow is bad 
 {Nichols V. Chapman). 
 
 Evidence of existence of highwag. — In an action of trespass for 
 breaking and entering the plaintiff's land, on an issue raised whether 
 there was a highway over the locus in qua, there was evidence that 
 there had been a highway over the adjacent land, which was then, 
 together with such locus in quo, an open common. There was also 
 evidence that for many years the highway was obstructed by part 
 of it being included in an enclosure, which had been illegally made 
 on such common; and that during twenty years of that time, the 
 public had deviated a little from the line of way, by going outside 
 such enclosure, and on the locus in (luo. At the end of such time, 
 and before the plaintiff became the owner of the locus in quo, the 
 use of such substituted line of way was discontinued by reason of 
 a new road having been laid out in a diflFerent direction by an ad- 
 joining land proprietary. Afterwards, the obstruction to the old road 
 was removed, and the original line of way was reopened to the public. 
 It was held by Erie C.J. and Bgles J. {Williams J. diss.), that there 
 was no reasonable evidence on the above facts, on which a jury might 
 find that there was, in addition to any other highway, a highway run- 
 ning over the locus in quo {Dawes v. Hawkins, 29 L. J. C. P. 343). 
 
 Evidence of user and dedication. — Although a cut de sac may be a
 
 lO-Z EIGHT OF JUSTICE AS TO HIGHWAY. 
 
 highway, and although the old doctrine that a higliway must lead 
 from one public place to another may not be strictly correct, yet 
 where a road leads to a place which is not public, and which the 
 public enter only by permission (as where it leads to the gates of a 
 park), the user of the road by all persons who seek such entry with- 
 out evidence of nser for any other purpose, is not a user surEcient 
 to warrant the conclusion of a dedication to the public as a highway 
 and a liability in the pai-ish to repair (Reg. v. Parish of Hawlchurst). 
 
 For right of jnihlic to eujogmcnt of highicag. — Wliere an ordinary 
 highway runs between fences, one on each side, the right of the pass- 
 age which the public have along it extends primS, facie, and unless 
 there be evidence to the contrary, over the whole space between the 
 Jeuces ; and the public are entitled to the use of the entire space {Reg. 
 V. U.K. Electric Telegraph Company {limited), 31 L. J. M. C. 166). 
 
 Enclosing to within fifteen feet of centre of highway. — The common 
 notion that owners of land on the sides of a highway may encroach 
 or enclose up to within fifteen feet of the centre is an error, and the 
 question will always be as to the extent of the highway by user : per 
 Erie J. {Reg. v. Johnson). 
 
 Rit/hf of Justices to determine ichether road is a highway. — On the 
 hearing of a complaint under 5 & 6 Will. IV. c. 50, sec. 73, for 
 leaving rubbish on a highway, after notice to remove it, the defendant, 
 who was the owner of the land on both sides of the alleged highway, 
 denied it to be the highway, and as he claimed the soil subject to a 
 private right of way only, he contended that the justices ought not to 
 adjudicate in the matter, on the ground tliat title to land came in 
 question ; and it was held that the objection was untenable, for that 
 the justices had jurisdiction under the statute to determine whether 
 the road was a highway or not. And per Wightman J., the question 
 of title to the land does not properly arise ; and per Compton J. " I was 
 struck by the way the point was raised, viz., that the matter of title 
 comes into question, because the appellant claims the land subject 
 only to the easement of a private right of road. As a general rule, 
 no doubt, justices are not to decide on summary conviction, the title 
 to land; and as I said in Reg. v. Cridland (27 L. J. (N". S.) M. C. 28), 
 this docs not depend on any exception in the particular statute, so 
 much as on the principle generally applicable to summary convictions. 
 But in this particular case, the magistrates were to decide on theques- 
 tion whether the alleged highway was a highway or not; this in some 
 sort may be said to involve a question connected with title to land, but 
 that consideration cannot oust them of jurisdiction where they are the 
 tribunal appointed to decide that very question, highway or no highway.
 
 DISTINCTION BETWEEN A PRIVATE AND PUBLIC WAY. 103 
 
 The very foundation of their jurisdiction in the matter depends on this 
 question, and the very first step is to ascertain whether the locus in quo 
 is a highway. They are nob really trying a question as to any title to 
 land; in this case the title to the land was admitted, and the only 
 question was, is the road a highway or not ? That is the very thing 
 which, as to any other individual, the justices are to try, and why not 
 when the person guilty of the alleged nuisance is the owner of the land ? 
 My notion is that if an Act of Parliament gives jurisdiction to justices 
 or other inferior tribunal over a matter connected with land, there must 
 be a special exception to the Act, in order to oust their jurisdiction, 
 where the title comes in question, as in the County Courts and 
 ]\ralicious Trespass Acts. The appellant seeks to oust the magis- 
 trates' jurisdiction, by alleging that the road is not a highway; any 
 other person might set up this defence, and it is a question of user 
 by the public, and is not founded on title, but arises just as much as to 
 any one of the public, as to the particular owner of the land ; and this 
 question of highway is the very question which the Legislature says the 
 justices are to decide" {Williams (appt.) v. Adams). 
 
 Distinction between a private and a public ivaij. — " It appears to me 
 that there is this distinction between a private and a public right of 
 way, that the former is not necessarily, as the latter is, over every iiart 
 of the land, to which people have access, or along which there is the 
 right of way :" per Gochburn C.J. {Hulton v. Hamboro'). 
 
 Duty of surveyor to protect foot-causeways ayainst carriages. — The 24th 
 section of the General Highway Act (5 & 6 Will. IV. c. 50), which 
 requires the parish surveyor to secure horse and foot causeways from 
 being passed over by carriages, applies only to such as are by the side of 
 carriage-ways ,- and therefore such surveyor is not bound by that statute 
 to protect horse and foot-causeways againsc carriages at the extremities 
 of such ways {Ellis (appt.) v. Woodbridye). 
 
 Surveyor of hiyhways not liable for accident caused by nonrqyair of 
 lload. — A surveyor of highways appointed under .5 & (5 Will. IV. c. 
 50, is not liable to an action for damages resulting from an accident 
 caused by the non-repair of the highway, as was substantially decided 
 in error in McKinnon v. Pcnson (9 Ex. 609, and 23 L. J. (N. S.) M. 
 C. 97) {Youny v. Davis). 
 
 Presump)tion of property on soil of private road. — The presumption 
 which prevails in the case of a public highway, that the soil usque ad 
 medium filum vice belongs to the owner of the adjacent land, prevails 
 also in the case of a private way ; provided that there be no other 
 evidence of owncrshi]> to rebut such presumption {Holmes v. Belling 
 Jiam, 29 L. J. C. P. 132).
 
 104 ETGHT OF WAY. 
 
 Ril/hf of icaij aj^pur tenant. — A plot of building ground liaving been 
 conveyed v>itli a right of way over a new road leading thereto from a 
 high road, it was held by the Court of Common Pleas that if that plot 
 of land is subsequently demised by parol, the right of way passes also, 
 although not specially mentioned {Skull v. Gtenister, 33 L. J. C. P. 185). 
 
 Imptieil grant of way of necesfiitij. — Where the owner of a farm severed 
 it by will among his two sous, and the moiety devised to one son was 
 landlocked, except where it abutted on the moiety devised to the other, 
 yet the will made no mention of any ways whatsoever, it was held by 
 ihe Exchequer Chamber, atiirming the decision of the Court of Queen's 
 Bench, that some way passed by implication under the will, and that 
 the Court would look at the previous occupation of the testator's pro- 
 perty to see what way was meant by him to pass. Under these circum- 
 stances, where the access to the landlocked premises, and to the farm 
 buildings upon them, had been in the testator's lifetime by one par- 
 ticular road across the moiety devised to the other son, and the enjoy- 
 ment of the landlocked premises in the state they were in when devised 
 was not complete without this particular road, the Court held that this 
 particular road passed under the will, and not merely " a way of 
 necessity ; " and semhic, that if a way of necessity only had passed, the 
 way would have been limited by the necessity (Reff. v. Pearson). 
 
 Conveyance of a dose adjoininy highway implies that of hiyhway vsque 
 ad mcditan Jihnn vice.. — Where a close of land adjoins a highway, the 
 presumption of law is that half of such highway, vsque ad medium filum, 
 passes with the conveyance of the close ; and such presumption is not 
 rebutted by the fact that the close is separated from the highway by a 
 fence, and is defined in the conveyance by admeasurement and reference 
 to a plan which did not include such highway, and the cases of Simpson 
 V. Dendy (8 C. B. 433), and Lord v. tJie Commissioners of the City of 
 Sydney (12 Moo. 473), arc authorities to that effect {Jjerridge v. 
 Ward, 30 L. J. C. P. 218). 
 
 Map held inadmissihle under certain circumstances to prove rights of 
 iray. — To prove that there was a public right of way over certain 
 closes, part of a manor, the defendant put in evidence a map used by 
 a deceased stewai'd of the manor at the Manor Courts, for the purpose 
 of defining the copyholds. In it, there appeared a space marked out 
 by two lines crossing the closes in question, and called Mellow Lane. 
 There were occupation ways, as well as public highways, marked upon 
 the map, but there was nothing to distinguish one from another, nor 
 was there anything to show that the space marked out as above 
 mentioned was a public liighway at all. The map was held inadmis- 
 sible : the deceased steward did not make the map, nor was it proved to
 
 rJGHT OF WAY UNDER DEED OF PARTITION. 105 
 
 have been made by any one who had knowledge of the facts (P/};e v. 
 Fukher, 28 L. J. Q. B. 12). 
 
 Order of Justices to stojj up a puhlic carriage-road under an Inchsure 
 Act, implied ly long acquiescence. — An award made in 1830, under an 
 Inclosure Act, which empowered the Commissioners to stop up high- 
 ways, subject nevertheless to the order and concurrence of two justices, 
 directed a certain public highway for carriages to be stopped up. Ever 
 since the award {i.e. for 28 years) the road had been stopped up by a 
 gate, and had never been used by the public, with carriages or horses. 
 There had, however, been some user by foot passengers. No proof was 
 given that the requisite order of justices had ever been made. It was 
 held by the Exchequer Chamber, confirming the decision of the Court 
 of Exchequer, that from the non-user of the road for so long a period, 
 the jury might presume that there was such an order (Williams v. 
 Fi/tm, 28 L. J. Ex. 146). 
 
 Poiver of Inclosure Commissioners to set out private road. — Where a 
 provisional order has been made under the Inclosure Acts, ordering 
 certain land therein described to be allotted to an individual, in lieu of 
 his right in the lands to be enclosed, and the order does tiot eaprcsstij 
 exempt such allotment from having a right of way reserved over it, the 
 Inclosure Commissioners have power, in proceeding with the inclosure, 
 to order the valuer to set out a private road over such land, for the use 
 of another landowner; and per Erie C.J., "The words of 11 & 12 
 Vict. c. 99, s. 4, giving the valuer power to set out private roads, are 
 extremely wide, and give the Commissioners jurisdiction in the matter" 
 {Gruhh V. Inclosure Commissioners). AfRrmed in Error. 
 
 Apip)ropriation of a private right of uuiy lij Private Estates Act. — A 
 Private Estate Act (6 117//. IV. c. 13) enables tenants for life to grant 
 building leases, and empowers the lessors to lay out, and appropriate 
 any part of the land authorised to be leased, as for a way, street, 
 square, passage, or sewer, or other conveniences for the general im- 
 provement of the estate, and the accommodation of the tenants and 
 occupiers. It was held that extensive private rights of way over such 
 appropriated land might be granted to particular lessees, as such appro- 
 priation did not confer a right of user by all the tenants and occupiers 
 (White V. Leeson). 
 
 Right of way under deed of partition. — Pger v. Cartel' was quite dis- 
 tinguished from Worthington v. Gimson, in which there is no ground 
 for saying that there was any necessity at all for the way claimed. 
 There H. and P. being seised of undivided moieties in the N. and N". V. 
 estates, entered into a deed of partition, by which tiie N. V. estate was 
 conveyed to tl., and the K". estate to P. A way had existed for many
 
 100 PLOUGHIXG Ur FOOTPATHS. 
 
 years, leading from a farm on the N. estate, occupied by the plaintifT 
 over his land, and over land oeenpicd by the defendant on the N. V. 
 estate. The way had been used l)y the occupier of the plaintiff's farm 
 before and after tlie "iOth of January, in which month the deed of par- 
 tition was executed. By the deed, H conveyed his undivided moiety in 
 the N. estate to P., and as part of the farm occupied by the plaintiff 
 with others, " with their and every of their rights, members, easements, 
 and appurtenances." P. also conveyed his undivided moiety in the N. V. 
 estate to H. The plaintilf and his predecessors used the way up to 
 January 1859, when it was obstructed by the defendant. It was held 
 in an action brought by the plaintiff in respect of such obstruction, 
 that the way in question did not pass under words used in the deed 
 of partition, and that the plaintiff could not recover ( Worthington v. 
 Gimson. For Pyer v. Carier, see 2% L. J. Ex. 25S). 
 
 Eridcnces of dedication of jmvate farm road to the jjuUic — The occa- 
 sional user of a farm road by strangers chiefly for purposes of pleasure 
 is evidence of a public rather than a private way, and may be evidence 
 of a dedication to the public as a highway, but must be well weighed 
 with reference to permission, repair, and all other circumstances tending 
 to show whether the owner ever intended such a dedication, especially 
 if it leads to a place of resort for mere purposes of pleasure : per Erie 
 C.J. {JlildredY. Weaver). 
 
 Mere tracJrs in wood not proof of highwaij. — The mere use of tracks in 
 a wood by people where they were free to wander about as they pleased, 
 is not necessarily enough to show a dedication of such tracks to the 
 public as public footways : per ErU C. J., Chapman v. Crijips and Others 
 (2 V. &. F. 8G4) ; and evidence that in a place of resort for pleasure, as 
 a wood or the hke, people have gone about wherever they pleased, there 
 being no definite enduring trackway in any particular direction, but 
 merely temporary and transitory tracks, not passable in wet weather, 
 varying every season and never proved to be repaired, was held by 
 Wifjhiman J. not to be evidence on which a jury could properly find 
 either a public highway or a public ri;jht of resort for air and exercise, 
 or a prescriptive right of way (Srha'inr/e v. iJouvIt). 
 
 Charging settled estate icith expense of road through another p)art of the 
 estates. — The court will not sanction the sale of any part of settled 
 estates, that the purchase-money may be applied in laying out and 
 making roads through another part of the estates : jier RomiJlg M.E. 
 {In re Chambers's Settled Estates). 
 
 Ptoiigliing up footpaths. — In Bright v. Hireet, which was tried at 
 Taunton Assizes some years since, the /-•///.• as to ptoaghing vp footpaths 
 was thus laid down : " In tin's case, which wa,, an indictnient brought
 
 DISCHAKGING WATER FROM EAVES. 107 
 
 by ccrtiornri from the Quarter Sessions, it appeared that tliere was a 
 pubUc footpath across the hinds of the defendant, who had been accus- 
 tomed to plough up the paths, to the great inconvenience of the public. 
 The right of way being established by undisputed evidence, the learned 
 judge declared the law to be : That if the public were entitled to a road 
 (or footway) at all, they were entitled to a good one, and that either 
 the parish or the person occupying the field, as the custom might be, 
 was bound to keep it in a proper state for the use of the public ; that if 
 the road (or path) led from a village to the church, he apprehended the 
 proper persons to repair were the parish officers or way wardens ; that 
 it was easy, if the farmer chose, to plough up the field without ploughing 
 up the footpath, and if he did plough it up he was liable to fine and 
 imprisonment for destroying the road (or path) ; that the King's subjects 
 were not to be put to inconvenience, merely because he would not give 
 himself a little additional trouble in passing the plough parallel with 
 the path ; " and the defendant was find 40s. 
 
 Discharging water from eaves on t-o land sifhject of action hg reversioner. 
 — Building a roof with eaves, which discharge rain-water on to the 
 land, may be injurious to the reversion, and will warrant the jury in 
 finding that the act alleged is an injury of a permanent character to the 
 land. But if the act be done merely with the view to establish an ease- 
 ment on the land, and is not in fact injurious to the reversion, the 
 action will not lie. The action by the reversioner is independent of 
 that by the tenant for damage to his possession. The Prescription Act 
 (2 & 3 Will. IV. c. 71, s. 8), reserves to the reversioner three years 
 for resisting any claim after his estate has come into possession, 
 though the full period of prescription has previously elapsed {Tucker v. 
 Newman, 11 Ad. & E. 40). 
 
 Rule as to going 100 gards through turn-pike gate. — A person who 
 had here come on to the turn-pike road 20 yards below the gate, and 
 passed 300 yards through it, is liable to pay toll at a toll-gate, on a 
 turnpike road, though he has not travelled 100 gards on the road before 
 coming to the gate, if, after passing through the gate, he uses the road 
 for a space which together tvith that he has passed over previouslg exceeds 
 in all the distance of 100 gards {Horivood v. Powell). 
 
 Composition for tolls made hg lessees are fiof illegal (Stott v. Clegg). 
 ConstrKction of" other thing" in Turnpike Roads Act. — The words "■ other 
 thing" in 3 Geo. lY. c. 126, s. 121, which imposes a penalty on persons 
 drawing " any timber, stone, or other thing " on a turnpike road other- 
 wise than on a wheeled carriage, were held to apply {Cockhitrn C.J. 
 d'ulh) only to things ejusdem generis, and therefore not to a load of 
 straw. Judgment was therefore for the respondent, and the view of
 
 108 TURNPIKE EOADS ACT. 
 
 the magistrates who had dismissed the information iipiield. He had 
 used a vehicle on two wheels, so constructed, that when going down 
 liill the front part of the vehicle came into contact with the road, and 
 ploughed it up, acting as a kind of drag, but it was only laden with 
 straw. The Court thought that this was a sledge, and not a carriage 
 on wheels within the act, as the magistrates had decided ; but they 
 agreed with them that the general words in the section must be limited 
 to things of the same nature, and calculated to produce the same mis- 
 chief as those enumerated, and dismissed the appeal {Couabj Road 
 Board of Radnor v. Evans).
 
 CHAPTER IV. 
 
 TREES AND FENCES. 
 
 The general projpeiiy in trees is in the landlord, and that in bushes 
 in the tenant, even where they are cut down by a stranger {Berrmian v. 
 Peacock). Where trees are excepted in a lease, the land on which they 
 grow is necessarily excepted also, and if therefore the tenant cut down 
 the trees the landlord has trespass for breaking his close, and cutting 
 them down {per Prohyn J. ; Rolls v. RocTc). By Liford's case the soil 
 on which timber trees grow is not excepted by the words " all timber 
 trees," but only nutriment out of the land SQfiicient to sustain the 
 vegetative power of the trees. Where, however, there was a lease of 
 the site and demesne of a manor, ^' except is ct semper reservatis omnihus 
 loscis subboscis," &c., it was held that the soil itself was excepted 
 (Whistler v. Pcisloiv). Hence it is observed in a note to Pomfret v. 
 Ricroft, " that there is a distinction between an exception of woods and 
 unclerwoods, and an exception of all timber trees ; for by the former the 
 soil itself on which the woods and underwoods grow is excepted." But 
 it has been held otherwise where the words "woods and underwoods" 
 follow the words " timber and other trees " in the same clause of 
 exception {Leigh v. Heald). "All manner of timber trees and great 
 ivoods" are excepted in a lease, and it was held by three judges out of 
 four, that the phrase did not include underwood or herbage of the 
 woods (1 Dy. 79 a). 
 
 By a general demise of lands on ivhich there are timber trees, without 
 any exception, the timber trees are demised as well as the lands, and in 
 Doe dem. Douglas v. Lock the Court of Queen's Bench considered that 
 the same rule would hold with regard to the tops of trees lilcelg to i^rove 
 timber. 
 
 Where a declaration, as in Hurst v. Hurst, stated that the defendants 
 covenanted that they " would not lop or top ang tree without the assent 
 in writing of the plaintiff, under a penalty of £20 for each tree which 
 should be so lopped or topped, over and above the actual value of the 
 tree," and the breach laid was that the defendants lopped twenty trees 
 of the value of £80, without the consent in writing of the plaintiif, and
 
 ]10 WASTE OF TIMBER. 
 
 tliei-eupon became liable to pay such £80, and also the further sura of 
 £20 for each tree so lopped, being the amount of penalties so incurred 
 and forfeited ; it was held by the Court of Exchequer that assuming the 
 £20 penalty to be liquidated damages, the plaintiff could not recover it 
 on this breach, inasmuch as it did not allege that the penalty was not 
 paid. It is a question for the jury whether the cutting done to a tree 
 is a lopping within the meauhig of the covenant {Lowe v. Peers). 
 
 Timber while standing is part of the inheritance : but whenever it is 
 severed, either by the act of God, as by tempest, or by a trespasser, and 
 by wrong, it belongs to him who has the first estate of inheritance, 
 whether in fee or in tail, who may bring trover for it ; and this was so 
 decided upon occasion of the great windfall of timber on the Cavendish 
 estate per Lord Talbot C. {Beioiclc v. Whitfield). A tenant in tail after 
 possibility of issue extinct is entitled to the timber he cuts (Wilh'ams v. 
 Williams) ; but a tenant in tail expectant on the determination of an 
 estate for life, without impeachment of waste, cannot recover in trover 
 for timber which grew upon, and had been severed from the estate, 
 because such an action must be founded on the property of the plaintiff, 
 whereas a tenant for life without impeachment of waste has a right to 
 the trees the moment they are cut down (Fyne v. JDor). The right to 
 trees severed by the tenant of a copyhold or customary freehold hprimd 
 facie in the lord, and in general he may maintain trover for them when 
 so severed (Ladi/ Fleminrj v. Simpson). And so where large masses of 
 rocks had fallen ii'om time to time, and from beyond the time of memory, 
 from some cliffs above, which did not belong to the lord of the manor, 
 into the field of a copyholder, which was within the manor, and the 
 copyholder had removed portions of them from his field, and sold them, 
 he was held by the Court of Exchequer to be liable for so doing in an 
 action of trover by the lord, as they had become a portion of the soil, 
 there being no evidence to show that they had fallen since the copy- 
 holder was admitted. And p)cr Parlce B. : " He may remove them for 
 the benefit of his agriculture, but it is a different thing if he proceeds to 
 sell ; though a copyholder may cut down trees for purposes of repair, 
 the lord may bring trover, if he sells them " {Deardm v. Evans). 
 
 Although no action of waste lies where there is an intermediate estate, 
 yet if waste be done by felHng timber trees, the person entitled at that 
 time to the inheritance in fee or in tail may seize them, or bring an 
 action of trover for the recovery of them. A tenant lor life has but a 
 special interest in the trees growing on the land, so long as they are 
 annexed to it ; but if he or any one else severs them from the land, his 
 interest in them is determined thereby, and they become the property 
 of the o^-ner of the inheritance. But the words " wilkout impeacliment of
 
 CUTTING TIMBER BY TENANT FOR LIFE. Ill 
 
 waste" give to the tenant for lile the riglit to fell timber, and also the 
 property of all timber trees felled or blown down, and also of all timber 
 parcel of a bnilding blown down. It has, however, been held {Pvjot v. 
 BuUocTc) that a tenant for life without i/npeachraent of waste cannot 
 maintain trover for timber cut daring the existence of a prior estate; 
 but that it vests immediately in the owner of the inheritance. The 
 power such a tenant for life without impeachment of waste has over his 
 estate, with respect to cutting down timber, must be exercised during 
 his life, and cannot be delegated to any other person, so as to enable 
 such person to execute it after his death. The tenant for life may cut 
 down timber trees at seasonable times for the reparation of houses or 
 fences ; but he cannot cut down timber, to build new houses, or to 
 repair those that he himself has improperly suffered to fall into decay. 
 And where he cuts down more timber than is necessary it is waste, 
 though he asserts that he cut it down to employ it on future repairs 
 (Cruise, vol. 1, Tit. III., ch. 1, i^. 
 
 Effect of sale of timher by tenant for Ife to trustees of remainderman. — • 
 If a tenant for life, without impeachment of waste, sells for value " all 
 and singular the timber and timber-like trees then gi'owing or being, or 
 which should thereafter grow or be, upon settled estates " to trustees, 
 for the benefit of those in remainder, he will be restrained from cither 
 cutting or thinning the. timher: pen' Romilly M. R. {Gordon v. Woodford). 
 
 Cutting of timber by tenant for life. — Where timber ripe for cutting 
 is cut by a tenant for life impeachable for waste, he is entitled to the 
 income of the fund produced by tlie sale thereof: and the first person 
 taking an estate unimpeachable for waste will, on coming into posses- 
 sion, be entitled to the capital. Where the timber so cut is not 
 ripe for cutting, semble the produce belongs immediately to the first 
 person having an estate of inheritance, passing over all the intermediate 
 life estates, whether impeachable for waste or not. But whether it 
 belongs to him or to the first tenant for life unimpeachable for waste, 
 the cutting being a tort, the remedy is by action at law, and not in this 
 court. Therefore under no circumstances can a tenant for life unim- 
 peachable for waste, be entitled, on coming into possession, to back 
 interest on the produce of timber, whether properly or improperly cut 
 by a previous tenant for life, impeachable for waste : per Wood V.O. 
 {Oent V. Harrison). 
 
 Tenant for life barred by lapse of time from receiving proceeds of timber 
 cut down by previous tenant. — A tenant fur life cut timber in excess of 
 what he was entitled to cut ; nearly 20 years after his death, the suc- 
 ceeding teuant for life filed a bill for an account, and to make the estate 
 of the deceased tenant for life liable for the timber cut in excess; and
 
 112 DEFINITTOX OF TIMBER. 
 
 it was hcUl by Sir. J. Roiu'dhj 'M.W., that the phn'nlif trtis harred lij 
 lapse of time, and the bill was ciismisseil with costs. Roherls v. TimstaU 
 (4 Hare, 2bl, U L. J.Ch. Ibl) ; Prijcc v. Burn (cited by Lord Alvcm- 
 Uij, 5 Ves. 681); Gregory v. Gregory (G. Cooper, 201, s. c, Jacob, 631), 
 were cited for the plaintiffs on the question of waste ; and Sihlering v. 
 The Earl of Balcarras (3 De G. and Sm., 735, and 19 L. J. Ch. 252) ; 
 and Picker my v. Lord Stamfm-d (2 Yes. Jun. 272), cited by the defen- 
 dants on the question of delay in filing the bill, were thus referred to 
 by His Honour in his judgment. In Fie Jeering v. Lord Stamford, the 
 Master of the Rolls observed that " the very forbearance to make the 
 demand affords a presumption either that the claimant is conscious it 
 was satisfied, or that he intended to relinquish it. Here the claim is 
 made in respect of timber cut during sixteen years' enjoyment of the 
 property by a tenant for life, who died in March 1838, and all this was 
 at the time within the knowledge of the present plaintiff, who seeks 
 redress in March 1858" {Harcoiirt v. White). 
 
 Permissive icaste hy tenant for life.—T\iQ court in Warren v. Rudall 
 (29 L. J. (N. S.) Ch. 543), quoted Pmvys v. Blayrave (24 L. J. (JST. S.)' 
 Ch. 142), as a proof that the court will not interfere in a case of per- 
 missive waste by tenant for life. 
 
 Prohibition against timber cutting.— Yreehold, copyhold, and leasehold 
 estates were devised and bequeathed to A. B. in fee simple, subject to a 
 limitation over, by way of executory devise, in the event of A. B. dying 
 without leaving issue male liviug at his death, with a prohibition agaitist 
 his cutting timber, and with a discretion as to the copyhold and leasehold 
 estates (held upon leases determinable with lives) that such property 
 should be kept " fully estated " with three lives. A. B. died without 
 issue male, and during his life committed various acts of waste by cut- 
 tin «• down timber and allowing the property to become dilapidated. He 
 also omitted to keep the copyholds and leaseholds " fully estated." It 
 was held by Kijidcrsley V.C., that it was competent for the testator to 
 impose upon A. B. the obligation not to cut timber, although without 
 such prohibition he could have done so ; and also that A. B. was under 
 no obligation to repair, and was not liable for permissive waste, but all 
 losses consequent upon his omission to keep the property fully estated 
 with three lives must be borne by the estate {Blalce v. Peters). 
 
 Dffinition of "timber" in a valuation.— The defendant having told the 
 plaintiff, a land surveyor, that he was tenant for life of an estate, and 
 wanted to sell every stick of timber on it, gave him an order signed by 
 himself to value it at a certain rate per cent. The witnesses on both 
 sides agreed that timber ordinarily meant trees of a certain yroivth, and 
 the valuation included mere saplings, so that it did not show the value
 
 CUTTING DOWN ORNAMENTAL TIMBER. 113 
 
 of the timber, and it was held by Cocldmrn C.J. that there was nothing 
 to show that the word "timber" was not used in its ordinary sense, and 
 that therefore the jury might find the valuation to be valueless {Whiiti/ 
 V, Lo7-d Dillon). 
 
 Fences and frees in churchyard. — At common law the parishioners are 
 bound to repair the fences of the churchyard, although custom may in 
 particular cases throw the obligation upon either the parson or the 
 owners of particular estates. But the parishioners have no power to cut 
 down trees or mow the grass in the churchyard, without the consent of 
 the parson, to whom they belong. He can, however, only cut down the 
 trees (unless they are decayed) for the repair of the church or parsonage 
 house {Holdsworth's Handy Boole of Parish Lair, p. IC), 
 
 Cutting down ornamental timber or immature trees hy devisee in fee. — 
 A devisee in fee, subject to an executory devise over, is not impeachable 
 for waste, but the Court will restrain him from committing equitable 
 waste, by cutting down ornamental timber or immature trees : per Wood 
 V.C. This decision was affirmed by Lord Chancellor Campbell. His 
 Lordship stated that he was quite willing with Wood V.C, to accept 
 the clue by which Lord Justice Turner in Miclclethwait v. Micldetliwait 
 (1 De Gex. & Jo. 504, and 2G L. J. Ch. (N. S.) 721,) proposed to solve 
 the difficulty. " If a devisor or settler occupies a mansion-house, with 
 trees planted or left standing for ornament round or about it, or keeps 
 such a mansion-house in a state for occupation, and devises or settles it 
 so as to go in a course of succession, he may be reasonably presumed to 
 anticipate that those who are to succeed him will occupy the mansion- 
 house ; and it cannot be presumed that he meant it to be deprived of 
 that ornament Avhich he himself enjoyed. The tenant for life sans 
 waste is as much owner of the timber as the tenant in fee ; their legal 
 rights in this respect are identical " {Turner v. Wright).* 
 
 Claim of right to enter close of another and cut down trees. — To an action 
 of trespass for cutting down and carrying away trees growing in the 
 close of the plaintiff, the defendant pleaded an immemorial enjoyment 
 of a right in one A. B., the owner in fee of a close, and all those whose 
 estate he had, and his ^and their tenants, to enter on a part or strip of 
 the said close of the plaintiff, and to cut down and convert to their own 
 use the trees growing there, such right being claimed as appurtenant to 
 the close of the said A. B., but the plea did not allege that the timber so 
 taken was not to be used in any way in or about the said close of A. B. 
 Averment that the defendant was tenant to A. B. of the said close, and 
 that the trees were cut down by the defendant in exercise of the said 
 righft There were other pleas, which set up the enjoyment of a 
 precisely similar right for 60 years and 30 years respectively ; and
 
 Ill CUSTOM OF COPYHOLDERS TO FELL TIMEEn. 
 
 also a plea alleging a grant by deed, wliieh was lost, by the then owner 
 in fee, of tlie close of the plaiiitiif to the then owner in fee of the close 
 of the defendant, of the right now claimed. It was held by the Court 
 of Common Pleas, that all the pleas were bad, as the right claimed being 
 a right in gross could not pass with the occupation of the land. SemlU 
 also that such a right could not pass with the ownership of land ; and 
 per WUks J., " Except in the case of landlord and tenant, in order 
 tiiat rights over the land of one may be attached to the land of another, 
 so as to pass with the omicrship of the laud, they must be such rights 
 as are beneficial to the owner of the dominant tenement, only so long 
 as he remains owner of that tenement, and to other persons are of no 
 benefit whatever " (^Bailey v. Stevens.) 
 
 liovglis overhanging land. — It is a nuisance if a man allows the boughs 
 of his trees to grow so that they overhang his neighbour's land {Earl of 
 Lonsdale v. Kelson). 
 
 Tahing timher for honse-lote. — In a lease for lives of a manor and 
 demesne, the lessee covenanted to repair, and keep the premises in all 
 needful and necessary reparations, having or taking in and upon the 
 demised premises competent and sufficient house-bote for the doing 
 thereof, without committing waste, and it was held by the Court of 
 Queen's Bench that the covenant was an absolute and not a conditional 
 covenant to repair with a license to take timber for house-bote {Dean 
 and Chapter of Bristol v. Jones and others). 
 
 Evidence of conversion of tree. — In the case of {Bird y. Bond) A.ha\mg 
 sold to B. some growing trees, B. entered to cut them down, whereupon 
 C, who was on the land as a trespasser, served B, with a notice not to 
 fell any of the timber. B. having desisted, C. subsequently cut down 
 the tree but did not remove it.' It was held by the Court of Exchequer 
 that C. had not been guilty of a conversion of the tree. 
 
 Custam for copyholdeis to fell timher without license from Lord. — A 
 custom for copyhold tenants to fell timber or other trees upon their 
 customary lands, and to retain the same for their own use, without license 
 from the lord, although such timber may not be felled for necessary 
 repairs, was held by the Court of Common Picas, not to be unreasonable, 
 and such a custom is not the less admissible in evidence because it also 
 professes to entitle the customary tenants to plough up meadow land, 
 and to suffer their houses to decay, which might be a bad custom if 
 pleaded {Blewett app. v. JenJcins resp.). 
 
 In iJoe dem. liogers v. Price, a lease contained a demise of land and 
 quaiTies, with power to open and work them at a certain rent and 
 royalties, with an exception of the trees on the premises. The lessee 
 covenanted not to commit waste by cutting the trees, &c., and there
 
 INTEREST IN TIMBER OF LESSOR AND LESSEE. 115 
 
 was a proviso for re-entry in case the lessee should commit any waste 
 by any of the means aforesaid. He, however, cut down trees which it 
 ivas necessarij to remove in, order to ivork the quarries, and the Court oi 
 Common Pleas held that this was not a breach of the covenant working 
 a forfeiture, and that the covenant meant that the lessee was not to cut 
 down the trees excepted so as that the cutting should amount to an 
 excess of the rights which it was intended that he should exercise. 
 The case, Coiirthorpe v. Maplesden, in which the Court of Chancery 
 granted an injunction against a trespasser cutting timter i?j cotlusion 
 v'ith the tenant, is the strongest case in which it has interfered to re- 
 strain waste, and there is no case in which it has interfered to restrain 
 the acts of a mere trespasser ; but seml)Ie, if the acts complained of are 
 such flagrant acts of malicious waste as to indicate fraud, that would be 
 a case for interference ; 'pc^' Wood V.C. {Earl Talbot v. Hope Scott), 
 And a party in possession of lands and proceeding to cut timber waste- 
 fully, will be restrained by injunction from doing so at the instance of 
 another claiming under a title at law {Neale v. Gripps). 
 
 The trustees of an estate pur autre vie cannot bring trover for trees 
 felled on the estate ; they have a special property in them while standing, 
 but on severance they belong to the owner of the inheritance {BlaJcer v. 
 Anscomte). But a lessor has such a possession of timber cut down 
 during the continuance of a lease as to maintain trover for it, for a 
 lessee's interest in the timber determines upon severance [Berry v. Herd), 
 a case which Lawrence J. cited in Gordon v. Harper, as decisive upon 
 this point. So he may maintain trover for harlc of trees cut, and for the 
 trees though they be cut into boards, for the jDrincipal substance re- 
 mains. The landlord of a tenant from year to year, though there is no 
 reservation of the timber on the premises, may support trespass vi et 
 arjnis against a third person for carrying it away after it has been cut 
 down ( Ward v. Andrews). Lawrence J. decided in Evans v. Evans that 
 the tenant for years could not maintain trespass de ion asp for timber 
 cut down on the demised premises ; he had no property or interest what- 
 soever in the trees after they were severed from the freehold, and they 
 were then in the legal possession of the reversioner, and he alone could 
 maintain trespass for the asportation. Where the trees are excepted in 
 the lease, the lessee has no manner of interest whatever in them, and 
 the lessor may have an action for trespass against him if he either fells 
 or damages them (Ashniead v. Rcmger, 1 Ld. Eaym. 552). 
 
 Where there is no exception of them in the lease, loth lessor and lessee 
 have an interest in the trees, and therefore if a stranger cuts them down, 
 each of them shall have an action against him to recover their respective 
 loss : the lessee in respect of his loss of their mast and fruit and shade
 
 116 TENANTS IN COMMON OF TIMBER. 
 
 for his cattle. A lessee for life or years has only a special interest and 
 property in timber trees so long as they are annexed to the land, and 
 may lop them if the body of the trees is not thereby injured. There- 
 fore if the lessor fells them, the lessee has trespass against him, and will 
 be entitled to recoTer damages adequate to the loss of his particular 
 interest, and also for the entiy into his land. But the interest in the 
 body of the trees remains in the lessor, as parcel of his inheritance, 
 who may punish the lessee in an action of waste, if he fells or damages 
 any of them. The lessee has a general propertij in hedges, hushes, and 
 trees which are not timber, and may have them if he cuts them down. 
 So he may claim dotards, which have no timber in them, if they are 
 thrown down by a tempest, but not trees for which the lessor may have 
 trover {HcrlaTcendcn's case). Where the lease of a farm contained the 
 following exception, " except also all and all manner of timber, timber 
 trees, &c., wood, underwood, topwood, bushes, and thorns, otheo' than 
 such hushes and f horns as shall he necessary for the repairs of the fences ; 
 as well as covenants that the lessee would, during the continuance of 
 the term, keep the gates, &c., and fences belonging to the premises, in 
 a good and proper state of repair, finding all materials except as therein 
 mentioned, the lessor finding rough wood for making such repairs, if 
 growing upon the premises ; and that the lessor would, during the 
 lease, find and provide, if growing on the premises, sufficient rough 
 timber, stakes, and bushes, for doing such repairs, — it was held in 
 Error, PolJoclc C.B. duh., that all trees and all bushes, whether forming 
 part of the fences or not, or necessary for repairs or not, were excepted 
 from the demise ; and as timber trees, though in hedge-rows (and 
 though the body of the tree might form part of the fence), would not 
 probaljly pass to the tenant, but may be cut down by the landlord, 
 leaving the tenant under the obligation to repair the gap thereby made 
 in the i'ences ; so in like manner bushes and thorns might be cut down 
 and removed {Jenny and Eunnacles v. Broolc). 
 
 It was decided in Waterman v. Soper, that if there be two tenants in 
 commoji of a tree, and one cuts the whole tree, the other may not have an 
 action for the tree, but for the special damage sustained by the mis- 
 feasance of cutting, as where one tenant in common destroys the whole 
 flight of pigeons. And according to Martin v. KnoUgs, an action on 
 the case in the nature of waste ivill not lie ly one tenant in common against 
 another tenant in common, fm- cutting trees of a pro2m- age and growth. 
 In this case, the defendant occupied the whole of the land, having a 
 demise fi'om the plaintiff of his moietj'. Heath J. directed a verdict to 
 be taken by the plaintiff for the value of half the trees growing, with 
 leave to move, but the verdict was ordered to be entered for the defen-
 
 PROPERTY IN A TREE. 117 
 
 daiit by the Court of King's Bench, Lord Kenyon C.J. said, " This 
 verdict has neither principle nor authority for its support. The defen- 
 dant cannot be in a worse situation by being tenant to the plaintiff of 
 his moiety, tlian he would have been if the plaintiff' had not demised to 
 him, and considered iu that point of view this action ex delicto cannot 
 be supported. If one tenant in common misuse that which he has in 
 common with another, he is answerable to the other in action of mis- 
 feasance. But here it does not appear that the defendant committed 
 anything like waste : no injury was done to the inheritance ; no timber 
 was improperly felled, the defendant only cut those trees that were fit 
 to be cut. And if he were liable in such an action as this, it would 
 have the effect of enabling one tenant in common to prevent the other's 
 taking the fair profits of their estate. In another form of action the 
 plaintiff will be entitled to recover a moiety of the trees that were cut" 
 (I Ld, Raym. 737 ; B. N, P. 85 ; 2 Roll. Rep, 255). 
 
 The following rule was laid down in Waterman v. Soper as to the 
 properti/ in a tree. If A, plants a tree upon the extremest limits of his 
 land, which in course of time extends its root into the land of B. next 
 adjoining. A, and B, are tenants in common of the tree ; but if all the 
 root grows into the land of A., though the boughs overshadow the land 
 of B., yet the branches follow the root, and the property of the whole is 
 in A, This question was re-opened in Holder v, Coaies. There the 
 plaintiff's and defendant's land adjoined, the former being the higher of 
 the two, and the plaintiff's hedge separated them, standing on the edge 
 of the plaintiff's ground, on the bank or declivity descending to that of 
 the defendant. The trunk of the tree stood in the defendant's land, but 
 some of the lateral or spur roots grew into the land of both parties, and 
 evidence was given on the part of the plaintiff to show that there was 
 no tap root, and that all the principal roots from which the tree derived 
 its main nourishment were those which grew into the plaintiff's land. 
 The defendant, on the contrary, gave evidence that there was a tap root, 
 growing entirely in his land, and that the spur roots grew alike in the 
 lands of both parties ; and urged that at all events he was a tenant in 
 common of the tree, and that trespass could not be supported, according 
 to the rule in Waterman v. Soper. Littledale J. said that there was 
 another case on the subject, Masters v. Pollie, in which it was considered 
 that if a tree grows in A.'s close, though the roots grow in B.'s, yet the 
 body or main part of the tree being in A.'s soil, all the residue of the 
 tree belongs to him, and he intimated to the jury that he thought this 
 doctrine the preferable one of the two. His lordship then advised them 
 to ascertain if possible in whose land the tree w^as first sown or planted. 
 The jury said they could not tell, and a verdict for the defendant was
 
 lis DEFINITION OF TLMDEll TllEES. 
 
 taken by consent (M. & M. 112 ; for Masters v. Polite, see 2 Roll. 
 Rep. 111). 
 
 A very complicated case of this kind, Dixon v. Geldard, was tried at 
 the "Westmoreland Summer Assizes, 1857. The tree in question was 
 nearly one hundred years old, and grew in a fence dividing the land of 
 the phiintiff from the land of the defendant. The fence had always been 
 repaired by the plaintiff, and was admitted to belong to him. It was 
 an old one made up of dry materials, the part near to the tree being 
 what is called a " copped " fence, and the tree in question, a large oak, 
 stood apart from it, rather more to the side of the field belonging to the 
 defendant than to the side of the field belonging to the plaintiif. On 
 the defendant's side of the hedge, close to it, a short distance from the 
 oak, some ash trees were growing, which, being in the defendant's field 
 and forming no part of the hedge, it was conceded, belonged to him. 
 Tiie evidence for the plaintiff also went to show that the heart of the 
 tree was a foot nearer the defendant's land than the plaintiff's. There 
 was also, close by the tree, a thorn growing further into the field 
 than the tree, wliich thorn, wlien the hedge was repaired, was always 
 cut at the bottom and laid back in the hedge. The defence was that 
 the tree was originally planted on the defendant's land, which gave 
 him a right to cut it down, and that supposing it did form part of 
 the fence, if it was originally so planted, the fact of its becoming 
 part of the fence would not alter the ownership. In May, 1857, the 
 plaintiff thought about felling the tree, and spoke to Mr. John Nelson, 
 a carpenter and wood merchant, about it. No bargain was come to, 
 but the price named was £10. This circumstance reached the ears of 
 the defendant on a Saturday, and he immediately employed two men 
 to cut down and bark the tree as soon as possible after 12 o'clock on 
 Sunday night, and an action of trespass was brought. After a great 
 deal of contradictory evidence on both sides, the plaintiff had a verdict 
 of £10. 
 
 Timhcr trees are those wliich serve for building, or reparation of 
 houses ; such as oak, ash, and elm, of the age of 20 years and upwards ; 
 but by the custom of some countries certain trees not usually considered 
 as timber are deemed to be such, being there used for building. Beech, 
 or buck as it was once termed, was admitted in Aubrey v. Fisher to be 
 timber by the custom of the countiy (Bucks), like oak and ash, and 
 hence the general rule of law, applicable to timber trees, attaches to it 
 so as to give it the property and privileges of timber at 20 years' growth. 
 No evidence was allowed to qualify its character as such, where the 
 trees were more than 20 years old, as for instance that by the custom of 
 the country it was not deemed timber unless it contained 10 feet of solid
 
 SALEABLE UNDERWOODS. 119 
 
 wood. But in Rex v. 3Imchinhampton, Lord Mansfield C.J. said, " Beech 
 is certainly not timber by the general law of the land, yet it may be by 
 the particular custom of the place. I do not mean of the county 
 (Gloucester), but that particular part of the country where the trees 
 grow. It is not the use it is put to that makes it either timber or not 
 timber ; its being or not being timber depends upon the custom of the 
 country. And if it be timber by the custom of the comitry, it must be 
 presumed, and it may be true in fact ' that it was timber before the time 
 of Queen Ehzabeth.' " Mr. White, in a note to his edition of " Cruise's 
 Digest," vol i. 116, says, "Birch trees are considered timber in York- 
 shire and Cumberland ; hccch, cherry, and asi)en in Buckinghamshire ; 
 beech also in Gloucestershire and Bedfordshire ; beech and willow in 
 Hants : in some places, white thorn, holly, black thorn, horse chestnut, 
 lime, yew, crab, and hornbean : in other districts, jwllards, or other 
 timber trees which have been lopped, are, contrary to genei'al estimation, 
 also considered timber." Lord Kiny held ivalnut trees to be timber, and 
 pollards, if their bodies are sound. 
 
 Fir and larches planted with oalcs, for the purpose of sheltering the 
 latter, and cut from time to time, as the oaks grew larger and required 
 more space, but once cut not growing again, and some of them yielding 
 a profit by sale, were held in Rex v. Inhabitants of Ferrybridye not to Ije 
 saleable underwoods within the 43 Eliz. c. 2, the primary object of 
 planting them being to protect the oaks, and not to derive a profit from 
 them|;er se by sale. And per Baylcy J. : " Generally speaking, the term 
 ' underwood ' is applied to a species of w^ood w^hich grows expeditiously 
 and sends up many shoots from one stool, the root remaining perfect 
 from which the shoots are cut, and producing new shoots, and so yield- 
 ing a succession of profits. It is probable that this is the description 
 of underwood to which the statute of EUzaMh applies. But it is not 
 necessary to decide that, inasmuch as that statute also requires that it 
 should be saleable underwood, and the word saleable in Rex v. Inhabi- 
 tants of Mirfield has been held to denote such as is intended or destined 
 for sale, in contradistinction to such as is to supply the land with 
 estovers for fuel and other purposes of the estate. It does not, there- 
 fore, come within the description of saleable underwood, unless the 
 prospect of deriving a profit by sale was the main object of the proprietor 
 when the plantation ' was made." In Rey. v. Inhabitants of Narbcrth 
 North, a wood consisting of oak gi-owing from old stools, with a few ash, 
 alder, and beech trees, had not been felled for 50 years, until three years 
 before it was rated. During the last three years, the owner had annually 
 cut the worst shoots, selling the poles by the dozen for colliery purposes 
 and firewood, and the bark by the ton ; the wood was also occasionally
 
 120 RATING OF COPROLITES. 
 
 waste-M-ecded to improve the plantation, and the waste wecdings were 
 allowed to lie on the ground to rot. The Court of Queen's Bench con- 
 firmed the finding of the sessions, that the wood was not saleable under- 
 wood within stat. 43 Eliz. c. 2. 
 
 LMeduU J. said, " The first question is whether this wood is under- 
 wood ? Small wood never likely to be used for timber may be called 
 underwood ; so may plantations of timber trees not intended for per- 
 manent growth, but to be cut at stated intervals for use as hop-poles, or 
 for other similar purposes. Here the poles were never meant for growth 
 as timber, and may therefore be properly called underwood. Then are 
 they saleable underwoods ? A capacity of being sold for profit belongs 
 to all wood ; the statute must therefore be taken to mean underwoods 
 cut down for sale at regular and calculable periods. The question, 
 therefore, becomes one of fact, which the justices at sessions must 
 decide, taking into consideration the mode of managing that sort of 
 property, the time of cutting, and other circumstances." And in Eex v. 
 Inhabitants of Jlirfield, the Court of Queen's Bench intimated that the 
 fair mode of rating saleable nndcricoods would be to rate them yearly at 
 such a sum as a tenant would be willing to give them annually upon a 
 21 years' lease. 
 
 The question whether coprolites were rateable or not was a most 
 important one, and was first raised in the case of Eoads v. T/ie Overseeis 
 of Tnnnpington, 5 L. R. Q. B. 5G. 
 
 The appellant was rated as occupier of five acres of land on a gross 
 estimated rental of £431 10s., and a rateable value of £256 lOs. 
 
 The Court of Queen's Bench, without expressing any opinion as to 
 the amount of the rate, which was a matter not in dispute in the case, 
 decided that as the a^jpellant was in occupation of the laud in respect of 
 which he was rated, he was properly rated. 
 
 The Court of Queen's Bench having thus decided that coprolite pits 
 were rateable, another question arose as to the principle on which they 
 were to be rated, and this was decided in the case of Reg. v. Overseers of 
 Whaddon, 10 L. Pt. Q. B. 230. 
 
 The Assessment Committee rated the appellant in respect of ten acres 
 of coprolite land at a gross rental of £840 and a rateable value of £630. 
 By an agreement with the Earl of Hardwicke, the appellant contracted 
 to pay £115 an acre for the coprolite land, and to dig sufficient land to 
 l)ay the Earl £1000 per annum at least, such sum to be paid quarterly, 
 whether sufficient land was dug over in any one year to amount to that 
 sum or not. 
 
 It was argued on the part of the appellant that he was never in 
 beneficial occupation of more than three and a half acres at any one
 
 APPLE-FARM LEASE. 121 
 
 time, and that he could not be rated in any one rate for more than that 
 amount. 
 
 It was held by Jlcl/or, Lush, and Archihald, JJ. (disscnticnte, Cock- 
 burn, C.J.) that the appellant ought to be rated in each rate in respect 
 of ten acres at their enhanced value. 
 
 A bill will lie to restrain a tenant for life from cutting clown underwood 
 and timber generally of an insufficient growth {Bnjdijes v. Stcpliens) ; 
 and according to Picjoi v. Bulloclc, he has no property in the underwood 
 till his estate comes into possession, and therefore he cannot have an 
 account of what was cut wrongfully by a preceding tenant. In Gcdwatj 
 V. Baher it was held by the House of Lords, affirming the judgment of 
 the Court below, that a clause in an indenture of lease reserving out of 
 the demise to the lessor " all wood and underwood, timber and timber 
 trees standing, growing, or being thereon, or at any time thereafter to 
 stand or grow thereon, with full and free liberty of ingress and egress to 
 take and carry away the same," applies only to trees standing when the 
 lease was granted, and not to those afterwards planted by the tenant. 
 Its operation is so restricted by the 23 & 24 Geo. III. c. 39. 
 
 In a Devonshire apple farm lease, by an exception of " all trees, 
 woods, coppice, wood grounds, of Avhat kind or growth soever," apple 
 trees are not excepted {WijndJumi v. Way). In Bullen y. Denning it 
 was held by the Court of King's Bench that where in a cider county a 
 lessor demises " all timber and other trees, but not the annual fruit 
 thereof," apple trees are not within the exception. This was a case of 
 trespass for felling the plaintiff's apple trees, and a verdict having been 
 found for the plaintiff, the Court made the rule absolute to enter a 
 nonsuit. Littlcdale, J. said, " The word trees, generally speaking, 
 means wood applicable to buildings, and does not include orchard trees. 
 The words 'not the annual fruit thereof may apply either to the 
 produce of orchard or to that of timber trees. Those words may there- 
 fore be satisfied without holding them to apply to the produce of 
 orchard trees. And as it is doubtful whether it was intended to except 
 fruit trees, the words of the exception must be construed favourably for 
 the lessee. I think we are therefore bound to hold that fruit trees do 
 not come within it." Baijley J. also observed in the course of his judg- 
 ment that " the term fruit in legal acceptation is not confined to the 
 produce of those trees which in popular language are called fruit trees, 
 but applies also to the produce of the oak, elm, and walnut trees. In 
 the old books the lessee is stated to have an interest in the trees in 
 respect of the shade for cattle and the fruit thereof. Looking at the 
 nature of the subject-matter of demise, which is land situate in a 
 county where cider is made, and where apples constitute a great part of
 
 1-2 -Z ACTS OF WASTE. 
 
 the annual produce, I think it is not very likely tliat the lessor Avould 
 make apple trees the subject of an express exception." A covenant in 
 a lease to deliver up at the end of the term all the trees standing in an 
 orchard at the time of the demise, ''reasonable use and ivear onhj cx- 
 cepfed,'' is not broken by removing trees decayed and past bearing from 
 a part of the orchard, which was too crowded {Boe dem Jones v. Crouch). 
 Here nine trees had been cut down, and nine planted, and Lord 
 EUenloromjh held that the above was " a reasonable use of the orchard 
 and the trees.-" A tenant of a nurscr// //round and garden may, at the 
 expiration of his tenancy, remove such trees as are saleable l)y him in 
 his trade as a nurseryman, but not such as are only cultivated with a 
 view to the fruit they yield, and are used by him as a market gardener ; 
 and it is entirely a question for the jury, whether they come under one 
 description or the other (Wardell v. Uslter). 
 
 Alderson B. in Fhittips v. Smith thus defined Waste: "The destruc- 
 tion of germens or young plants destined to become trees (Co. Litt. 43), 
 which destroys the future timber, is waste ; the cutting of apple trees 
 in. a garden or orchard, or the cutting down a quickset hedge of thorns 
 (Co. Litt. 53 a), which changes the nature of the thing demised ; or the 
 eradicating or unseasonable cutting of white thorns (Vin. Abr. "Waste, 
 E), which destroys the future growth, are all acts of waste. On the 
 other hand, those acts are not waste which, as Richardson C.J. in 
 Barrett v. Barrett says, are not prejudicial to the inheritance, as, in that 
 case, the cutting of sallows, maples, beeches, and thorns, those alleged 
 to be of the age of 33 years, but which were not timber either by the 
 general law or particular local custom. So likewise cutting even of 
 oaks or ashes, where they are of seasonable wood, i.e., where they are 
 cut usually as underwood, and in due course are to grow up again from 
 the stumps, is not waste." It is laid down in Co. Litt. 53 a, that 
 "waste properly is in timber trees (oak, ash, and elm, and these be timber 
 in all places), either by cutting of them down, or topping of them, or 
 doing any act whereljy the timber may decay. Also in countries where 
 timber is scant, and beeches or the like are converted to buildings for 
 the habitations of man or tlie like, they are all accounted timber : " and 
 that " cutting down of wittows, beech, birch, ash, maple, or the like, 
 standinfj in tlie defence and safecjuard of the house, is destruction." 
 
 In PMJlips V. Smith, the only acts proved against the defendant Avere 
 cutting down for sale several 2)ollard willow trees, of a considerable 
 size, u'hicli grew on the side of a broolr, but were not shown to be of any 
 service as a support of the bank against the water, nor to be of any 
 protection to the farmhouse, and also some trivial injuries to the fences. 
 The willows were cut close to the ground, leaving the stools or butts,
 
 CUTTING WILLOW POLLAEDS. 3 23 
 
 from which fresh 'shoots grew again. It was contended for the 
 defendant, that such cutting down of these trees was not a breach of 
 the implied agreement to cultivate according to good husbandry and in 
 a tenant-like manner, while the plaintiff asserted it was positive waste. 
 Mauh J. reserved the point, and the jury having assessed the value of 
 the willows cut down at £64, gave the defendant leave to move to 
 reduce the damages {£%% 4.s. Cc/. in all) by that sum. The Court of 
 Exchequer decided that it was not waste, Rolfe B. intimating that he 
 considered that cutting down a fir tree would be waste because it 
 would not grow again. And per curiam, " Applying the principles to 
 be extracted from all the authorities to the present case, we have no 
 difficulty in saying that the cutting of these willows does not amount 
 to waste. They are not timber trees, and when cut down they are not, 
 so far as appears by the evidence, destroyed, but grow up again from 
 their stumps, and produce again iheir ordinanj and usual profit by such 
 growth ; therefore neither is the thing demised destroyed, nor is the 
 thing demised changed as to the inheritance, for profit remains, as 
 before, derivable from the reproduction of the wood from the stump of 
 the willow cut down. Nor are the trees in such a situation as to make 
 the cutting of them waste, by reason of what is called collateral respect; 
 as where trees not timber are situated so as to be useful for protection 
 of a house (Co. Litt. 53), and so become, as it were, part of the house ; 
 as in Hob. 219, willows growing within the site of the house. Xor are 
 they willows within view of the manor house, which defend it from the 
 Avind, or in a bank to sustain the bank (12 H. 8, 1); or like white- 
 thorns used for the like purpose, or where they stand in a field depastured, 
 and are used for the shade of the beasts depasturing, and so are intended 
 permanently to remain in that particular form, for the advantage of 
 those to Avhom the inheritance may thereafter come" (14 M. & W. 589). 
 This case was referred to by Willes J., in his summing up in Viscount 
 Hood V. Ivendall, which was an ash-pole case. The defendant held a 
 farm as tenant from year to year, upon a written agreement, by which 
 it was stipulated amongst other things that he should cultivate the 
 farm "in the same way and manner, or as near thereto as circumstances 
 would admit of, as one Henry Parsons (the outgoing tenant) used, and 
 cultivated the same during his occupation thereofj and in all events 
 according to the rules of good husbandry, used and accustomed in the 
 neighbourhood." In an action against the outgoing tenant, alleging 
 for breach amongst others, the cutting and carrying away of ash-poles 
 (such user not being as near to the way and manner in which Parsons 
 used and cultivated the farm as circumstances admitted, and being 
 contrary to the rules of good husbandry used and accustomed in the
 
 124. CUTTING ASH-POLES. 
 
 ueighboui-hood), it ai)pcared that the poles in question consisted of 
 shoots til-owing from old stools, which were seasonable and fit for 
 cutting about every 17 or 18 years, that by invariable custom they 
 belonged to the landlord in the absence of a special agreement to the 
 contrary; that, whilst Parsons held the farm, these poles had never 
 been in a fit state for cutting; that two tenants who had preceded 
 Parsons in the occupation of the farm had cut and sold them as crops, 
 and that Kendall had, Avhilst he occupied, paid the rates for the whole 
 farm, including the wood or spinney in which the poles grew. When 
 Parsons became the tenant, the spinney was valued as between him 
 and the outgoing tenant at £50 9s. Gd. : the valuation describing it is, 
 *' Twelve acres of spinney, some of them of three and some of four years' 
 growth;" but there was no evidence that it was valued from Parsons to 
 the defendant's father when he became the tenant (17 C. B. 2 GO). 
 
 W/lles J. finally left three questions to the jury, the third being 
 whether the landlord or tenant was entitled to the poles. His lordship 
 told them that he thought ash, oak, and elm were jn-imd facie timber 
 trees ; that they might assume the character of a crop, and be cut by 
 the tenant, if the usage had for a series of years, and through a suc- 
 cession of tenancies, been to cut them from time to time, as such, and 
 allow them to grow up again from the old stumps ; and that if there 
 was a custom of the country for the landlord to be entitled to the poles, 
 though of that character, such custom would take away the right of the 
 tenant. And he left it to them to say what was the character of the 
 poles, and whether there was a custom for the landlord to have them, 
 and whether this case was within the custom. The jury found for the 
 plaintiff as to the poles, damages £74 3s. dil, saying that there is a 
 universal cmlom that such poles are not crops, but belong to the land- 
 lord, unless there is a special agreement. His lordshijD reserved leave 
 to the defendant to move to enter a verdict for him, if the Court should 
 be of opinion that notwithstanding the custom the defendant had a 
 riglit to the poles. The Court of Common Pleas held that it was im- 
 portant to consider on wliat terms Parsons had held the farm, and that 
 as this question was not left to the jury, there should be a new trial. 
 The case was, however, settled. And where a purchaser of a field 
 entered into possession under the contract, and filled up a pond and 
 stubbed up an osier bed, Knirjlit Bruce V.C. held that these acts did 
 not amount to a waiver of title, but that the purchaser would not be 
 allowed the usual reference for title, unless he paid the purchase-money, 
 and all the interest accrued due on it, into Court within three weeks 
 {Osborne v. Hurvcij). 
 
 A ienani's rit/hl to dotards was fully discussed in Channon v. Patchy
 
 tenant's right to dotards. ]25 
 
 where a lessor during the term cut down two decayed oak pollards 
 growing upon the demised premises, which were only fit for firewood. 
 The third resolution in Herlalcenden^s case, that if trees 'being thnher 
 ivere hloirn down hy the wind the lessor shall have them (for they 
 are parcel of his inheritance), and not the tenant for life or tenant for 
 years; but if they be dotards without any timber in them, the tenant 
 for life or years shall have them, was held to be an authority that this 
 action of trespass against tlie tenant was not maintainable. For if the 
 lessor would have had no right to the trees if they had been severed 
 from the inheritance by the act of God, neither he nor his vendee (the 
 plaintiff), who claimed under him, could have any right to them when 
 they had been severed by his own wrongful act. If these trees had 
 been blown down, they would have belonged to the tenant {Countess of 
 Cumberland's case), and the landlord could not by wrongfully cutting 
 down the trees acquire a right to them, so as to entitle him to maintain 
 trespass against tlie tenant for taking them away. That would be 
 allowing him to take advantage of his own wrong, for the lessee during 
 the terra being entitled to the usufruct of the trees might have main- 
 tained an action on the case against the landlord for wrongfully cutting 
 them down. 
 
 Lord Denman C.J. ruled, in Doe dem Wetherell v. Bird, that a covenant 
 " not to remove or (jruh up or destroy " trees, is broken by removing 
 trees from one part of the premises to another ; and so it is by taking 
 away trees, even if the lessee plant a greater quantity than he takes 
 away, unless those taken away were dead. In Woodliouse v. Sti'ift 
 evidence was given to prove that the timber removed was not wholly 
 sound, that a small part of one tree was rotten, and that four other 
 trees were " shaky," which one of the witnesses said amounted to un- 
 soundness. Alder son J. allowed the plaintiff' to show that the word 
 ^'^ sound" had a technical meaning in the timber trade, but the case 
 failed upon the facts. A tenant for years of a garden has no right to 
 remove a border of box planted by himself; and ParJie J. said it might 
 as well be contended that a tenant could take up hedges {Em])son v. 
 Soden). 
 
 In Michlethwait v. MicJdetliirait an injunction was granted to restrain 
 the defendant, who was under the testator's will tenant for life, without 
 impeachment for waste, of two estates, Beeston and Taverham Hall, 
 within eight miles of each other, from cutting down trees in the avenue 
 or park at Beeston. Wood V.C. did not consider the circumstances of 
 the testator pulling down the mansion at Beeston, where he had ceased 
 to reside 33 years before his death, and felling some of the trees, 
 added to the leasing power in the will over all the real estate, except
 
 120 ORNAMENTAL TIMBER. 
 
 tlie mansion at Taverhum Hall, as well as a power of sale and exchange, 
 sufficient to deprive the timber upon the estate of its ornamental 
 character. This ex 2Mrtc injunction was, however^ dissolved by the 
 Lords Justices, who held that timber to be ornamental, so as to entitle 
 it to the protection of the Court against equitable waste, must be con- 
 nected with or adjacent to a residence. Beeston had been wholly dis- 
 mantled; the wire fence protecting the ornamental garden had been 
 removed to Taverham ; the gardens and pleasure-grounds were suffered 
 to grow wild, with the exception of the kitchen-garden, which was let 
 to a market-gardener; and the testator, who was fond of shooting, 
 seemed, after his removal, to have regarded the whole estate merely as 
 a preserve for game. 
 
 Where the owner of an estate with residence purchases the adjoining 
 lands with ornamental /roods, the Court Avill not, from that fact alone, 
 infer that he intended to be left standing for ornament all such trees as 
 he did not in his lifetime cut down ; there must be some act of dedica- 
 tion, e.ff. planting an avenue, cutting a vista, erecting obelisks, &c.; 
 per Sir W. P. Wood Y.C. {HalUiveJl v. Phillips). A tree or trees may 
 be highly ornamental, and yet not be entitled to the protection of the 
 Court, as being planted or left standing for ornament ; but saplings 
 and hedgerow trees, or any trees, however ornamental, if planted also 
 for profit, are not within tlie doctrine {ib.). A tenant for life sans waste 
 will not be interfered with in the exercise of his legal powers, unless he 
 is proceeding to use those legal powers in a manner inequitable towards 
 those in remainder ; and therefore he may fell and sell trees planted for 
 ornament if done in a proper course of husbandry (//>.), and an injunc- 
 tion restraining a tenant for life, without impeachment of waste, from 
 cutting timber growing for ornament or shelter, extends to clumps of 
 furze on a common two miles from the house which had been planted 
 for ornament {Marquis of Doiun shire v. Lady Sandys, 6 Ves, 107). 
 
 "Where an estate was limited to one for life, with a clause of forfeiture 
 and a oift over on his cutting timber, and there was on it timber, and 
 other trees, not being in any rookery, or serving for ornament, shelter, 
 or protection to a mansion house, which required feMig , Lord Lanydale 
 M.Pt., on a bill filed for that purpose by the tenant for life, authorized 
 the same to be cut down, and directed a reference to the Master for the 
 purpose, the money arising from the timber in such case to be settled 
 on trusts similar to those on which the estate stood limited {Peters v. 
 Blake). And see DeJapole v. Detapolc, Hussey v. Hussey, and Wirkham 
 V. WicJcham. "Where an estate was devised to A. for life, impeachable 
 for waste, remainder to B. for life without impeachment of waste, with 
 remainder to C. in fee, and it became necessary in A.'s lifetime to cut
 
 LANDLORD ENTERING TO CUT TREES. 127 
 
 timber, the proceeds of which were invested and the interest paid to 
 him for life, and on A.'s death B. claimed the proceeds of the timber 
 for his own use, and C. the reversioner in fee, resisted the claim, on 
 the ground that they formed part of the corpus of the estate, it was 
 held by Shadivell V.C, in conformity with Waldo v, Waldo, that B. was 
 entitled to receive the proceeds {Phllipps v. Barlow). 
 
 In an action of waste for cutting timber, the defendant cannot give 
 in evidence, even in mitigation of damages, that the timber ivas cut for 
 the purpose of neccssarij repairs, but turning out unfit for the purpose 
 was exchanged for other timber, which was applied to the repairs 
 {Simmons v. Norton). He should have specially pleaded that he cut it 
 for repairs, and he was bound to confine himself to fell such trees as 
 were proper for repairs. And per Bosajiquet J., though the tenant may 
 fell trees for necessary botes, he must at his own peril select such as are 
 fit for the purpose, and employ them accordingly. 
 
 Such a clause in a lease as "all the hedges, trees, thorn hushes, fences, 
 ivith the lop and top, are reserved to tlie landlord," was decided in 
 Hewitt V. Sir G. Ishcwi to afford evidence of leave and licence, if tlie 
 landlord enters and, having cut down some trees, digs sawpits in the 
 land for the purpose of sawing the timber. Here the plaintiff was 
 tenant to the defendant, of a farm under a parol demise, which con- 
 tained the above stipulation, on which (although he gave evidence that 
 the act was done with plaintiff's permission) the cTcfendant principally 
 relied. Maule J. directed the jury that the stipulation in the lease 
 afforded evidence of leave and licence, and tlie Court of Exchequer 
 refused to set aside a verdict for the defendant. And per Farlce B. : 
 " This stipulation could not operate as a grant or an easement, because 
 it is not under seal. It can only operate as a licence from time to 
 time to enter upon the land {Wood v. LeadUtter, Kavanagh v. Gudije). 
 In Liford's case (11 Eep. 51 l) it was resolved, 'that when the lessor 
 excepted the trees, and afterwards had an intention to sell them, the 
 law gave him, and them who would buy, a power, as incident to the 
 exception, to enter and show the trees to those who would have them, 
 for without sight none would buy, and without entry they could not 
 see them.' So that, according to the authority of that case, wherever 
 trees are excepted from a demise there is by implication right in the 
 landlord to enter the land, and cut the trees at all reasonable times. 
 If, indeed, he leaves them on the laud for an unreasonable time, he 
 does more than the law authorizes him to do. But here there was no 
 evidence of that." 
 
 Williams V. Currie was an aggravated case of trespass on the part 
 of the defendant, who was landlord to the plaintiff of four grass
 
 1£S SALE OF TREES STANDING. 
 
 closes (37 acres), which were laid up for hay in April, May, and 
 June. About 100 trees (oak, ash, and elm) in the hedii^e-rows and 
 the close were cut down, and about twenty persons were employed in 
 felling, loppino;, and barking the trees, and stacking the fagots and 
 bark, and great damage was done to the hedges. There were three 
 sales — two in May and one in June ; and the fagots and bark were 
 not wholly removed till the 28th of September. Evidence was given 
 as to the presumed value of the first and second crop of hay, and it 
 seemed that but for such trespasses they might have yielded £200. 
 The defendant paid £50 into Court, and pleaded no damage ultra; 
 but the jury gave £250 more, and the Court refused to grant a new 
 trial, on the ground of excessive damages. Mmde J. said : " If we 
 were to hold that the jury in estimating the damages for an unlicensed 
 trespass of this sort are to be restrained to exactly the amount sus- 
 tained by the plaintiflP, it would in effect be placing a wrong-doer 
 upon precisely the same footing as one who enters with the owner's 
 permission.'' And s^emhle, in actions for iort, the Court will not inter- 
 fere with the damages found by the jury, unless they appear to be 
 grossly disproportioned to the injury sustained. Holt C.J. also decided 
 "on hearing of counsel several times," in GUnham v. Hanlnj, that if A. 
 demises ground to B. which was pasture, except the trees, and B. puts 
 in his caftJf to feed, irltich harlc the trees, A. has no action for trespass. 
 
 In Knowles v. Mkhet, it was proved that the plaintiff had sold to the 
 defendants some standing trees, which the defendants had afterwards 
 procured to ie felted and taken away. When the writ was served on 
 Micliel, both defendants admitted they had bought the trees jointly 
 for 9 guineas ; but Michel said he would pay no more than half. On 
 this evidence it was objected that the action was not maintainable, 
 the contract being for standing trees, which were part of the reality. 
 To this it was answered that the acknowledgment of the price to be 
 paid for the trees, made after they were felled and applied to the use 
 of the defendants, was sufficient to support the account stated, though 
 there was no other item of account between the parties. The plaintiff 
 was nonsuited ; but the Court of King's Bench held that if there were 
 an acknowledgment by the defendant of a debt due on any account, it 
 was sufficient to enable the plaintiff to recover on an account stated, 
 though not for goods sold and delivered. And see Smith v. Sitjrman, 
 ante, p. 55. In Bragej y. Cole, the defendant agreed to purchase a lot 
 of ash trees for a certain sum, and pay for them according to the 
 conditions of the sale, but afterwards felled and carried away seven of 
 them without making such payment, and refused to pay till the other 
 three had been delivered. It was held that the executors having
 
 ENTIRE TIMBER CONTRACT. 129 
 
 failed to establish the count on 'the special contract might recover 
 the value of trees taken by the defendant as goods sold and delivered, 
 as defendant by such taking had disaffirmed the entirety of the 
 contract. Holrotjd J., who tried the case, at first thought that the 
 plaintiffs could not recover on the counts for trees sold and delivered 
 by the testator in his lifetime, but observed that delivery might be 
 satisfied by the vendor's allowing part of the trees to be cut down and 
 carried away by the defendant, and that the contract being for a mere 
 chattel interest was not Avithin the 4th section of the Statute of Frauds 
 (6 B. Moore, 114). 
 
 The question of an entire timber contract arose in Bigg v. ]\liisMng 
 (14 C.B. 195), where the plaintiff and defendant (who was exceedingly 
 illiterate) went to several places a few miles distant from each other in 
 one day, and agreed for the purchase and sale of several lots of timber. 
 At the last place, where they dined, the plaintiff, at the request of the 
 defendant, who said he should like him "■ to jnit down ivMt we have been 
 doing,'' drew out and signed a memorandum of the whole transaction. 
 The defendant received several consignments of timber in London, 
 advancing money for the carriage, which was to be allowed him by the 
 plaintiff. When the residue arrived at the London terminus, the defen- 
 dant objected that some portion of it was unsound, and the other portion 
 not the timber contracted for, and ultimately he refused to receive it. 
 For the plaintiff the after-dinner memorandum was relied on as binding 
 upon him by reason of his signature, and upon the defendant by reason 
 of his acceptance of part of the timber under it. Cressivell J. ruled, on 
 the authority of Elliot v. lliomas, that the whole transaction amounted 
 to one entire contract, and that as part of the timber had been 
 received by the defendant, and money paid on account, the provisions 
 of the statute 29 Car. II. c. 3, s. 17, were satisfied, and the Court 
 discharged a rule for a new trial. It was clearly one transaction, 
 regard being had to the peculiar nature and situation of the bulky 
 articles which formed the subject of the contract. And ^jer Willianis 
 J. : " Baldcg v. FarJrcr, and Elliot v. Thomas, govern this case. Tlie 
 transaction amounted to a joint contract for all the timber" (3 M. & W. 
 170). 
 
 Acraman v. Morrice also turned upon what was a sufficient delivcrg 
 and acceptance under the statute. The defendant was a timber-merchant, 
 and the action was one of trover for oak timber, which had been pur- 
 chased of Swift (the bankrupt) by the defendant, and marked, measured, 
 and paid for before the date of the Jiat, but not actually delivered at the 
 appointed place. The first count alleged a conversion before, and the 
 second, one after the bankruptcy of Swift. To this defendant pleaded
 
 ioO DELIVERY AND ACCEPTANCE OF TIMBER. 
 
 — 1st.. To the whole declaration, not guilty ; and 2ndly and ordly, to 
 the first and second counts, that Swift, and the plaintiffs, respectively, 
 were not possessed, &c. The parties had long dealt together, and when 
 trees were felled the defendant's agent marked and selected what 
 would suit him. Swift then cut off the rejected parts, and at his own 
 expense floated the trunks down the Severn to Chepstow. The timber 
 in this action had been measured and marked by the defendant's 
 agent, but the rejected portions had not been severed by Swift before 
 the issuing of the Jiat. After that date the defendant sent some work- 
 men to sever the rejected portions, and carry the rest away, and con- 
 sidered that the measuring and mai'king of the timber by his agent 
 was a suflicicnt delivery and acceptance within the Statute of Frauds, 
 and passed the property in it to him. Under Coleridge J.'s direction 
 the jury found for the plaintiff for £95, the agreed value of the timbei' 
 so taken, and the Court refused to set the verdict aside. 
 
 Wilde C.J. said : " Upon a contract for a sale of goods, so long as 
 anything remains to be done to them by the seller the property does 
 not pass, and the seller has a right to retain them. In the present case 
 several things remain to be done : the buyer having selected and 
 marked the particular parts of the trees which Jie wished to purchase, 
 it became the seller's duty to sever those parts from the rest, and to 
 convey them to Chepstow, and there deliver them at the purchaser's 
 wharf. Xow that which the buyer does for the purpose of enabling 
 the seller to perform his part of the contract, cannot be considered as 
 an acceptance of the article. The selection and marking must of 
 necessity precede the delivery. What I understand by acceptance is 
 an act done by two parties, one of whom is content to deliver, and the 
 other to receive the subject-matter of the contract. The evidence here 
 is, that the seller engaged that he would sever the tops and sidings, 
 and after he had incurred the expenses of severing, he would incur 
 the further expense of conveying the trunks to Chepstow, and that the 
 buyer undertook to accept the trunks when severed, and delivered to 
 him at Chepstow. That is the contract which was proved. This 
 being the state of things, the seller becomes bankrupt, and the buyer 
 anxious to get possession of the timber — which it appears he had paid 
 for — goes to a place where he had no right to go, and takes upon 
 himself to sever and carry away that which does not belong to him. 
 The property clearly had not passed to the defendant, and he was 
 guilty of a trespass and conversion in possessing himself of it in the 
 way he did." Again, in TcuihIcij y. Turner the plaintiff sold Jenkins 
 all the ash trees on one Buckly's lands, where they had grown, at 
 Is. l\d. per cubic foot, on credit. Some trees were measured and
 
 PROPERTY IN HEDGE AND DITCH. 1:31 
 
 talven away, then all the residue were marked, and the length and 
 girth of each tree were taken ; but the total cubic contents of them 
 was not ascertained. When Jenkins became a bankrupt the plaintiff 
 prevented his servants from drawing any more trees, and Jenkins 
 acquiesced. Some time after the plaintiif drew the residue of the 
 trees, which were lying where they had been felled, to his own saw- 
 pits, from which the defendant, after notice not to do so, took away 
 two loads. It W'as held by the Court of Common Pleas, on an action 
 of trespass, that as nothing remained to be done but the adding 
 together of the different measurements, the property passed to the 
 vendee, and that the defendant, as the vendee's assignee, was entitled 
 to the possession of the trees, they having been fully delivered by the 
 vendor, and the vendee not having any right to relinquish the contract, 
 as he was at the time in a state of insolvency. 
 
 Where two adjacent fields are separated ly a hedge and ditch, the 
 liadigQ primd facie belongs to the owner of the field in which the ditch 
 is not. If there are two ditches, one on each side of the hedge, the 
 ownership of the hedge must be proved by showing acts of ownership. 
 Per Bayley J. in Guy v. West (Som. Ass. 1808). His lordship thus 
 referred to the subject in Noye v. P\.eed, where the landlord said that 
 he had let the lane jointly to both plaintiff and defendant, as much to 
 one as the other: "I admit that where there are separate owners of 
 adjacent lands, the presumption is that a ditch between those lands 
 belongs to the owner of the hedge ; but this is the rule of presumption 
 only, and applies only in cases of separate ownership ; and therefore 
 where the lands on each side are the property of the same landlord, as 
 he may let them as he thinks fit, and confine the rights of his tenants, 
 the onus of making out that the spot in question was his, was here 
 cast upon the plaintiff. He proved his possession of the close up to 
 the hedge of the lane, but he proved nothing more." 
 
 This case decided that where adjacent lands l)elong to two distinct 
 owners, the legal presumption is that the ditch which divides them is a 
 part of the soil of him to whom the hedge belongs ; and where a road 
 was between those lands, the owner on each side has a right of use ad 
 medium fikan vice. But semhte, that such presumption will not arise 
 where the entire property of such lands is in one landlord, who has let 
 them out to different tenants ; but that it will be incumbent upon 
 either tenant who shall bring trespass against the other to prove his 
 right of exclusive possession of the ditch, or the half of the road next 
 to his close, in order to sustain the action (ih.). 
 
 According to Ellis v. Arnison, a ditch which had been immemorially 
 the only fence between the commons and adjoining townships, was con- 
 
 K 2
 
 loH DITCHES. 
 
 siikted a fence Avitliin the provisions of tlie Geueral Euclosure Act, 41 
 Geo. III. c. 109 (U.K.). 
 
 Vowles V. Miller, wliicli is a leading case on the law of ditches, was an 
 action by the tenant-in-fec of a close against the tenant-for-j-ears of an 
 adjoining close, for an injury to the plaintiff's reversion. The plaintiff 
 proved that the defendant had a close contiguous to a certain close of 
 the plaintiff's, and surrounded by a fence (which the defendant was 
 bound to keep in repair), consisting of a bank and ditch, and that in 
 scouring the ditch the defendant had dug into the hard unmoved virgin 
 soil of the plaintiff's close. The defendant, on the contrary, proved 
 that this fence had been imniemorially a bank with a ditch on the out- 
 side of it, and not a bank only ; and he contended that consequently 
 he was entitled at common law to have a width of eight feet, as the 
 reasonable width for the base of the bank and the area of his ditch 
 together, which width, measured from the interior line of the base of 
 his bank, he proved that he had not exceeded, admitting that if the 
 fence were a bank only, he was entitled only to four feet. It was there- 
 upon contended for the plaintiff that whether the defendant's fence 
 were a bank only, or a bank and a ditch, the action would lie, as the 
 ditch was cut by the defendant's express directions into the soil of the 
 plaintiff's close, so that it was made wider than ever it was before. 
 The jury found for the defendant; and a rule nisi, for a new trial, on 
 the ground that the verdict was against evidence, was discharged. 
 Lawrence J. thus stated the rule about ditching : "No man making a 
 ditch can cut into his neighbour's soil, but usually he cuts it to the very 
 extremity of his own land. He is of course bound to throw the soil 
 which he digs out upon his own land ; and often, if he likes it, he plants 
 a hedge on the top of it. Therefore, if he afterwards cuts beyond the 
 edge of the ditch, which is the extremity of his land, he cuts into his 
 neighbour's land, and is a trespasser. No rule about four feet and eight 
 feet has anything to do with it. He may cut the ditch as much wider 
 as he will, if he enlarges it into his own land" (3 Taunt. 138). 
 
 An action on the case for not repairinf/ fences, yfhevehj another party is 
 damaged, can only be maintained against the occupier, not against the 
 owner of the fee not in possession, unless the owner was bound to repair 
 (Cheetham v. Ham])so?i). And 2^cr Lord Kenyan C. J. : "It is so noto- 
 riously the duty of the actual occupier to repair the fences, and so little 
 the duty of the landlord, that without any agreement to that effect the 
 landlord may maintain an action against his tenant for not so doing, 
 upon the ground of the injury done to the inheritance." And see 
 Payne v. Rogers (2 H. Bl. 349). 
 
 If two iiersons are iwssessed of adjoining closes, neither leing wider any
 
 REPAIRING PRIVATE ROADS. 133 
 
 ohUgatioii to fence, eucli must take care that his cattle do not enter the 
 land of the other. The one cannot distrain the cattle of the other 
 damage feasant {Ghurcldll v. Evans). And ^^^r curiam in the case of 
 Tenant v. Golchvin : ''- There is a great diversity between a prescrii^tion 
 to put a charge upon a man to repair his fence, and to excuse one from 
 trespass, for such cliarge must be bj prescription. Every one must use 
 his own, so as thereby not to hurt another ; and as of common right one 
 is bound to keep his cattle from trespassing on his neighbour, so he is 
 bound to use anythiug that is his so as not to hurt another by such 
 user. Suppose one sells a piece of pasture, lying open to another piece 
 of pasture which the vendor has, the vendee is bound to keep his cattle 
 from running into the vendor's piece ; so of dung, or anything else." 
 
 In an action on the case for not repairing a private road leading 
 through the defendant's close, it is sufficient for the plaintiff to allege 
 that the defendant as occupier of the close is bound to repair {Rider v. 
 Smith). But if the defendant prescribe in right of his own estate, he 
 must show the estate in right of which he claims the privilege {ih.). 
 The Court of King's Bench here were clearly of opinion that the decla- 
 ration sufficiently charged the defendant by reason of his possession. 
 And jjcr Buller J. : " The distinction Avas between cases where the 
 plaintiff lays a charge upon the right of the defendant, and where the 
 defendant himself prescribes in right of his own estate. In the former 
 case the plaintiff is presumed to be ignorant of the defendant's estate, 
 and cannot therefore plead it ; but in the latter the defendant, knowing 
 his own estate, in right of which he claims a privilege, must set it forth. 
 In Rex V. Buclnudt, Lord Holt O.J., said : ' Where a man is obliged to 
 make fences against another, it is enough to say omnes occupatores ought 
 to repair, &c., because that lays a charge upon the right of another, 
 which it may be he cannot particularly know.' And notwithstanding 
 two out of the three judges were of a different opinion in Holhatch v. 
 Warner, yet several subsequent cases have been determined on the 
 distinction. In 1 Yentr. 264 an anonymous action on the case against 
 a defendant for not repairing a fence, where the allegation was that the 
 tenants and occupiers of such a parcel of land adjoining the plaintiff's 
 have time-out-of-mind maintained it, &e., Holt moved in arrest of judg- 
 ment * that the prescription is laid in occupiers, and not shown in their 
 estates; and that hath been judged naught in 1 Cro. 155, and 2 Cro. 
 665.' But the Court said : ' It is true there have been opinions both 
 ways, but 'tis good thus laid, for the plaintiff is a stranger andpre- 
 sumed ignorant of the estate ; but otherwise it is, if the defendant had 
 prescribed.'" 
 
 It was held hy Erle^., and Crompton J., in Reg. v. Sir John Ramsdcn,
 
 13i. REPAIR OF FENCES. 
 
 principally on the authovit}' of Ilex v. Flcclowic, that tlie Uahirdy to 
 repair a hiylacay, ratione ckmsurm, is only on the occupier of the lands 
 inclosed, and not on the owner. And ^w Erie J., the liability does not 
 attach -where the way is not immemorial, or where the land inclosed has 
 not been used for passage before the iuclosure. In Rex v. Fkdcnow, the 
 parish was indicted, and pleaded that AYatson, by reason of the tenure 
 of lands inclosed by him, ought to repair, and the prosecutor replied 
 that this laud was inclosed under an Inclosure Act, and that Watson 
 was allottee of an allotment, and therefore made the inclosure ; and it 
 was decided that as Watson had a lawful right to inclose he incurred no 
 liability to repair by reason of doing so. And semhU there is no general 
 rule of law, imposing the obligation on the owner or occupier of lands 
 alutiing on a jmdlic road, to keep up the fences. Fer Kinder sley Y.C. 
 {Potter V. Parry). 
 
 In Boyle v. Tanilyji the whole subject of the ohliyation to fence was 
 much considered. Tlie plaintiff owned The Deans, and the defendant a 
 close adjoining it, called Deadmoor, which was separated from The 
 Deans by a fence with a gate, erected on the defendant's land. They 
 formerly belonged to one Coffin, who thirty years since sold The Deans 
 to the plaiutifi''s father, and two years afterwards Deadmoor to the 
 defendant. The gate in the fence was repaired by the tenant of Dead- 
 moor whilst Coffin owned all the lands. In those two years the cattle 
 of Fry, the tenant of Deadmoor, trespassed upon The Deans, and the 
 plaintiff's father gave Fry notice that unless he repaired the gate he 
 would impound his cattle. Fry did repair it, and so did the defendant 
 on a similar request from the plaintiff's father. Littledale J. thought 
 that there was some evidence to go to the jury, from which they might 
 l)resume that there had been an agreement between the plaintiff's father 
 and the defendant that the gate should be kept up by the latter for the 
 benefit of the plaintiff, telling them that in point of law the obligation 
 to repair the gate, if any, could only be created by special agreement 
 between the parties, regard being had to the fact that the land of each 
 party had originally belonged to Coffin. The jury found that the 
 defendant was bound by agreement to repair the gate, a verdict at 
 which the learned judge, in Banco (who had pointed their attention to 
 the fact, that in no instance had the defendant permitted the plaintiff to 
 do any act upon the defendant's land, and that he might fairly say that 
 he repaired the gate for his own benefit, to prevent his own cattle from 
 trespassing on the plaintiff's land), expressed his surprise, and leave for 
 a nonsuit having been reserved, a new trial was granted without costs. 
 
 Baytcy J. remarked that " a man is under no ohliyation to Tceejj v/p 
 fences let ween adjoininy closes of vhicJt he is owner; and even where
 
 CUTTING HEDGES. 135 
 
 adjoining lands, which have once belonged to different persons, one of 
 whom was bound to repair the fences between the two, afterwards 
 become the property of the same person, the pre-existing obligation to 
 repair the fences is destroyed by the unity of ownership. It follows 
 also that where the person who has so become the owner of the entirety, 
 afterwards parts with one of the two closes, the oVliyation to repair the 
 fences will not revive, unless express words are introduced into the deed 
 of conveyance for that purpose." " As the deed of conveyance irom 
 Coffin to Boyle was not produced at the trial, the fair inference is that 
 Coffin did not bind himself by it to keep up the fence between the two 
 closes. I agree if there was proof of any such stipulation it would 
 support the allegation that the defendant ' by reason of his possession ' 
 was bound to repair, for then the gi*ant would be evidence, only of the 
 liability. Such a right to have fences repaired by the owner of adjoin- 
 ing lands, is in the nature of a grant of a distinct easement, affecting 
 the land of the grantor. The authorities referred to show that it is 
 usual in such cases to allege that the occupier is ' by virtue of his 
 possession' bound to repair" (6 B. & C. 329). 
 
 Wilmot O.J. observed (3 Wils, Anon. 126) : " If a man turn his cattle 
 into BlacJcacre, where he has no right, and the?/ escape and stray into my 
 field for want offences, he cannot excuse himself or justify ibr his cattle 
 trespassing in my field," See Sir F. LeaMs case, and Poole v. Longuc- 
 ville (2 Saun. 285 V). In Dovaston v. Payne, on a plea of bar in avowry 
 for taking cattle damage feasant, viz., that the cattle escaped from a 
 public highway into the field through the defect of the fences, it was 
 held that such plea should show that the cattle were passing on the 
 highway when they escaped. And^^^r Eyre C.J. : " A party who would 
 take advantage of fences being out of repair as an excuse for his 
 cattle escaping from a way into the land of another, must show that he 
 was lawfully using the easement when the cattle so escaped." Heath J. 
 added: "The law is that if cattle of one man escape into the land of 
 another, it is no excuse 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 the 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 
 property is in the owner of the soil, subject to an easement for the 
 benefit of the public" (2 Smith's Lead. Cases). 
 
 One tenant in common may sue another for destroying but not for 
 clipping a hedge {Voyce v. Voyce). In this action of trespass, the defen- 
 dants, who were tenants in common with the plaintiff of the hedge and 
 the close of land on which it stood, had grubbed it up ; and Holroyd J. 
 ruled that a tenancy in common could not be given in evidence under
 
 136 PROPERTY IN HEDGE CUTTINGS. 
 
 the plea of Uhcnon tenemcntnm, but that it would have been receivable 
 iu evidence as a justilieation, under the general issue, if the defendants 
 had merely exercised that right of ownership over the subject matter of 
 the tenancy in common, -which every tenant in common may lawfully 
 do, such as clipping the hedge. As, however, iu (his case, the hedge 
 itself had been destroyed, the act of destruction rendered it impossible 
 for the plaintiff to exercise his rights as co-tenant in common with the 
 defendants, and therefore it could not be justified. The plaintiffs had 
 the verdict. 
 
 Gazdec J. in Berriman v. Pcacocl: thus stated the rule with regard to 
 hedge ndiings : " The tenant has a general property in the cuttings of a 
 hedge, whoever cuts it. If by his permission a stranger cuts it impro- 
 perly, so as to damage the fence, that may give the landlord a ground of 
 action on the case." Here the defendant Peacock occupied land next a 
 field let by the plaintiff to one AYardell for a term of j^ears, and requested 
 the latter to lower a fence between the two properties. Some delay 
 occurring, the defendant lopped the fence himself, but carried the 
 cuttings to Wardell, the plaintiff's tenant, who said at the trial, that 
 according to the custom of the country he believed he was entitled to 
 them. Defendant cut the hedge unskilfully, but the tenant said it was 
 a good job, and the fence the better for it. The action was for trespass 
 (k hon asj), and a verdict was found for the plaintiff, with nominal 
 damages ; but the Court made a rule absolute to enter a nonsuit, and 
 considered that as the tenant adopted the acts of the defendant, no 
 action could lie by him against Peacock. Tindal C.J. thought that " it 
 would be over-refinement to say that because a small ])ortion more of a 
 fence has been cut than the tenant is entitled to cut, the landlord has a 
 right to claim it. Here, indeed, the complaint was rather as to the 
 mode than the amount of the cutting ; but the question now is, whether 
 the property in the cuttings belonged to the landlord. Now, according 
 to the old authorities, the general property in trees is in the landlord, 
 and the general property in bushes is in the tenant ; although if he 
 exceeds his right, as by grubbing up or destroying fences, he may be 
 liable to an action of waste. We should be introducing a distinction 
 never drawn befoi-e, if we were to decide that when a tenant cuts rather 
 more than he ought, the property in bushes so cut passes to the 
 landlord" (9 Bing. 384). 
 
 With respect to stealing or injurwg trees and shrnhs of different values, 
 roots and vegetables, as well as fences and gates and stiles, see 7 & 8 
 Geo. lY. c. 29, ss. 38-43, and 7 & 8 Geo. IV. c. 30, ss. 19-24. It was 
 lield in lifg. v. WJi'deman, that section 19 of the latter act (The Malicious 
 Trespass Act) does not apply to consequent ial injury, but means injury
 
 MALTCIOUS INJURY TO TREES, ETC. 137 
 
 to the tree itself ; and hence where prisoners were indicted for maliciously 
 damaging trees cjroicing in a licdgc, to an amount exceeding £5, and it 
 was proved they had injured trees to the amount of £1, and that to 
 repair the injury it was necessary to stub up the old hedge, and further, 
 that putting in and protecting a new hedge would cost, including the 
 £1 for injury to the ti-ees, a sum exceeding £5, it was held that there 
 was no evidence of injury to the trees to the amount of £5. The above 
 section makes it felony unlawfully and maliciously to cut up and destroy 
 ■ trees growing in a ijanlcn, &c., if the injury exceed £1. 
 
 Section 20 of this act inflicts a fine not exceeding £5 beyond the injury 
 done, for unlawfully and maliciously cutting up and destroying ireets 
 wherever fjrou'lngi^ the injury amount to Is., upon conviction before a 
 justice ; section 21 inflicts imprisonment or forfeiture not exceeding 
 £20 beyond the injury done, for unlawfully and maliciously destroying 
 or damaging with intent to destroy any vegetahle production growing in 
 ang garden, &c., upon like conviction : section 22 inflicts imprisonment 
 for a shorter term or forfeiture (not exceeding 20.s-.), as before, fur 
 unlawfully and maliciously destroying, damaging with intent to destroy, 
 ang cultivated root, plant, dr., used for food, medicine, or manufacture 
 growing in tlie land not being a garden, upon like conviction ; and section 
 24 inflicts, upon conviction before a magistrate, a forfeiture of such sum 
 not exceeding £5, as shall appear to the magistrate a reasonable com- 
 pensation for wilfully or maliciously committing any damage, injury, or 
 spoil to or upon ang real or personal propertg, public or private, for 
 which no remedg or punishme?it is in the act before provided. And senible, 
 section 24 is inapplicable to damage to growing trees ; but neither under 
 that nor any other section is a committal or conviction good which 
 states the offence to be wilfully and maliciously cutting up and destroy- 
 ing fruit trees in a garden, or wilfully and maliciously committing 
 damage, injury, and spoil to real property, to wit, fruit trees, without 
 a finding as to the amount of damage (Charter v. Graeme and Simpson). 
 
 Tfw occupier of land is bound to fence off ang hole on it which adjoins 
 or is close to a public way, and he is prima facie liable for any accident 
 which may happen from his negligence in this respect {Barnes v. Ward). 
 One of the first reported cases of this kind was that of Bhjthe v. Topham, 
 where it was held that if A,, seised of a waste adjacent to a highway, 
 digs a pit in the waste within 3G feet of the highway, and the mare of 
 B. escapes into the waste and falls into the pit, and dies there, yet B. 
 shall nob have an action against A., because the making of the pit in the 
 waste and not in the highway was not any wrong to B., but it was the 
 default of B. himself that his mare escaped into the waste. The 
 existence of the pit in the waste adjoining the road was clearly not
 
 138 FENCING OFF CANALS. 
 
 dangerous to the persons or cattle of those who passed along the road, 
 if ordinary caution "were employed. Syhratj v. ]Vhiie differed consider- 
 ably in its facts. The plaintiff was possessed of a close, in which there 
 was an unfcnccd shaft, leading to a mine which had been covered up 
 for many years, the top of which gave way under his mare, who fell 
 down and it, was killed. , The defendant denied that the shaft was his, 
 but agreed to pay if a miner's jury of five should find that it was. 
 This finding, coupled with his declaration, was held to be admissible in 
 evidence against him in an action for compensation, and a verdict for 
 £lh being returned for the plaintiff, the Court refused a new trial, and 
 also decided that as the finding of the miner's jury did not on the face 
 of it appear to be an award, it was receivable in evidence without a 
 stamp (1 M. & W. 435). 
 
 Ckoial near jMhJic foot ivay. — Where a canal had been made in land 
 along which ran an ancient footway, and between the canal and footway 
 was a towing-path nine feet wide, and a strip of grass several feet in 
 breadth, and the public were permitted to pass over the whole inter- 
 vening space, which was left unguarded and unlighted, it was held by 
 the Court 6f Queen's Bench that the canal was not so " near to " or 
 " adjoining" the footway as to be a nuisance or to impose on the pro- 
 prietors the duty to fence, light, or protect it ; and that if a person 
 had gone astray and fallen into the canal, the canal company were not 
 liable, under Lord Campbell's Act, to the representative. And per 
 Curiam: "We adopt on this subject the law as laid down in Hoiinsell 
 V. Smyih (7 C.B. N.S. 731), that to throw upon the owner the obliga- 
 tion of fencing an excavation on land adjoining a public road or way, it 
 ought to be shown that the excavation is ' so near thereto as to be 
 dangerous to persons using the road in the line of the road.' In 
 Uardcadlc v. tiouih Yorlcsltire and River Dun Cumjmny (4 H. & N., 
 07), it was laid down that the excavation must be so adjohiing the 
 public way as that a false step might cause a person using the way to 
 fall into the excavation; and it seems but reasonable that in such a case 
 the owner of the land should be liable. But. where, as here, the excava- 
 tion is at some distance from the public way, the case is very diflfereut 
 (Binks adx. v. Soulk Yorlcshirc and River Dun Navigation Gonqxuiij)." 
 
 In Rooth V. Wilson, a horse, the property of the plaintiff's brother, 
 was sent over to the plaintiff one evening, who kept it in his stable for 
 a short time, and turned it out after dark into the close where his cattle 
 usually grazed. On the following morning it was foimd dead in the 
 dffendant's close, having fjillen from the one to the other. The liability 
 to repair was admitted, and the defence was, that the plaintiff (wliose 
 horse it was stated to be in the declaration) had not such a property in
 
 LIABILITY TO MAINTAIN FENCES. 130 
 
 it as to 'iiititle him to maintain tlic action. Tlic jury found for the 
 plaintiff, aud the Court of King's Bench refused a new trial, and per 
 Curiam : " The plaintiff although receiving the horse as a gratuitous 
 bailee, became accountable to the owner for any damage to it, if he did 
 not exercise a proper degree of care, Avliich he had certainly not done 
 here, and such liability was sufficient to enable him to maintain the 
 action. Having an interest in the integrity and safety of the animal, 
 he might sue for a damage done to that interest, and the same posses- 
 sion which would enable him to maintain trespass, would enable him to 
 bring case against the defendant for the defects and insufficiences of 
 the fences. He was entitled to the benefit of the field not only for the 
 nse of his own cattle, but for putting in the cattle of others ; and by the 
 negligence of the defendant in rendering the field unsafe, he is deprived 
 in some degree of the means of exercising his right of using that field. 
 Whether, therefore, the damage accrues to his own cattle, or those of 
 others, he may maintain the action." 
 
 Again in Powell v. Salisliury, the plaintiff declared against the defen- 
 dant in case for not repairing his fences, per quod the plaintiff''s horses 
 escaped into the defendant's close, and were there killed by tlio falling of 
 a luuj-siaclc. The damage was held not to be too remote, and the action 
 maintainable. Holhatdt. v. Warner was principally relied upon, whicli 
 was an action on the case against the defendant, for neglecting to repair 
 his fences, whereby his cattle escaped into the close of the plaintiff, and 
 from thence into the close of W., who sued the plaintiff' and recovered 
 against him in trespass ; as well as an anonymous case, 1 Vent. 2^1, 
 which was an action on the case for not repairing fences, jjer quod a 
 mare of the plaintiff's went through a gap, and fell into a ditch and 
 was drowned. On these cases Hulloclc B. thus remarked : ^' In Holbakh 
 V. Warner the damage was equally remote as in this case, but there no 
 objection was made upon this ground. In that cited from Ventris 
 upon motion in arrest of judgment, the declaration was held to be good, 
 but no objection like the present was taken. There is no distinction 
 for the purposes of the action between the falling of a hay-stack and the 
 drowning of the cattle in a ditch, for by each the death is occasioned." 
 
 Lialilitij to maintain fences. — Lawrence v. Jenlcins, 8 L.R. Q.B. 274. 
 This was an action brought in the County Court at Newport, in Mon- 
 mouthshire, to recover the value of two cows, which Avere killed by 
 eating the cuttings of a yew tree. The defendant occupied a close 
 adjoining a close occupied by plaintiff. The defendant sold some trees 
 to one Higgins, who so negligently felled a beech tree that it made a 
 considerable gap in the hedge Avhich divided plaintiff's close from defen- 
 dant's. Two cows of the plaintiff''s went through the gap in the hedo-e,
 
 MO RAILWAY FENCES. 
 
 ate some yew cuttings whieli were lying in defcudant's close, and died 
 in consequence. Tliere Avas evidence to show that defendant and his 
 predecessors had repaired the fence in question for more than forty 
 years, and that for the last nineteen years the fence had been repaired 
 by defendant and his predecessors upon notice by the occupier for the 
 time being of the plaintiff's close. The County Court judge non-suited 
 the plaiutill", but the Court of Queen's Bench held that the evidence 
 showed a prescriptive obligation on the part of the defendant to main- 
 tain the fence so as to keep in the cattle in the plaintiff's close : that 
 the obligation was absolute to keep up a sufficient fence at all times, the 
 act of God or vis major only excepted, without any notice of want of 
 repair ; that the damage was not too remote, and that the defendant 
 Avas tlierofore liable for the loss of the cows, distinguishing this case 
 from Longmekl v. HolUdcuj, 20 L.J. Ex. 430 ; and Buf/cr v. Hunter, 
 ol L.J. Ex. 214. In the case of Dawson v. The MiiUaiid Railwaij Com- 
 jianij, 8 L.R. Ex. 8, the plaintiff hired of the occupier of land adjoin- 
 ing the railway, a stable : he also had permission from the occupier to 
 turn his horse into the field during the day-time to graze. Through 
 the defect of the defendant's fence, the horse got on to the railway and 
 was killed : held that the Company were liable to pay i)laintiflF the value 
 of the horse. 
 
 In the case of Sncoslij \, Lancaslilre and Yorkshire Railway Company, 
 the plaintiff sent a drove of twenty-nine beasts by rail for Wakefield 
 market ; arriving at Wakefield on the night before, they were driven at 
 about eleven at night along an occupation road to a field where they 
 "were to remain for the night ; the road crossed some sidings of defen- 
 dants' railway on a level, and while the cattle were crossing the sidings, 
 the defendants' servants negligently, and without warning to the per- 
 sons in charge of the cattle, let some trucks run violently down an 
 incline into the sidings : this separated tlie cattle into two divisions, 
 and so frightened them tliat they escaped from the control of the drovers 
 and rushed away. The drovers succeeded in recovering most of the 
 cattle, but six or seven of them were not discovered till between three 
 and four the next morning, when they were found dead upon another 
 jjart of defendants' line. Their tracks were traced from the sidings ; 
 and it appeared that they had gone along the occupation road for about 
 a quarter of a mile, and had then got into an orchard and garden 
 belonging to the defendants, the fences of which were defective, and 
 thence on to the railway, where they were found : held that the damage 
 was not too remote, and that defendants were liable. 
 
 In Lee v. Riley, 34 L.J. X.S. C.P. 212, the plaintiff and defendant 
 occupied adjoining farms, and an occupation road extended from a high-
 
 PLANTING TUBES ADJACENT TO HIGHWAY. LiL 
 
 way through defendant's form, of whicli it formed part, into the plaintiff's 
 farm, where it formed part of plaintiflf's farm. There was a gate across 
 the occupation road at the point where the farms adjoined, and it was 
 the duty of defendant to keep this gate in repair. Tliis, however, the 
 defendant had neglected to do, and in consequence of this neglect, a 
 grey mare of his strayed through the gateway into a field of the plain- 
 tift^'s, and inflicted such injuries upon plaintiff's horse that the latter 
 had to be killed. Held that the defendant was liable for the trespass 
 by his horse, and that it was not necessary for the maintenance of the 
 action that the defendant's horse was vicious and that defendant was 
 aware of the fiict. See also Ellis v. The Loflus Iron Com})any, 10 L.E. 
 C.P. 10, where the above case is cited. 
 
 By section 64 of the Highway Act, 5 & G Will IV. c. 50, no tree, 
 bush, or shrub sMll he planted in any carriage-icaij or cart-icai/, or 
 within 15 feet from the centre thereof, under a penalty of 10s. if it be 
 not cut down by the owner or occupier of the land within 21 days after 
 receiving notice from the surveyor. Sections 65 and QQ direct the 
 cutting, pruning, and plashing of hedges, and the pruning and lopping 
 of trees. By the latter section, hedges need only be pruned between the 
 last day of September and the last day of March, and oak trees in hedges 
 are only obliged to be felled (except when the highway requires widen- 
 ing) in April, May, or June ; and ash, elm, and other timber trees, in 
 December, January, Februarj^, or March. 
 
 By 3 Geo. IV. c. 126, s. 113, it is enacted " That ditches, &c., of a suffi- 
 cient depth shall be made, &c., and sufficient trucks, tunnels, &c., shall 
 be made where carriage-ways or footways lead out of the said turnpike 
 roads into the lands or grounds adjoining thereto by the occupiers of 
 such lands or grounds : " held that the words, " occupiers of the lands 
 adjoining " apply only to the latter part of the section. Merivale v. 
 Exeter Road Trustees, 3 L.E. Q.B. 149. 
 
 Section 72 of 5 & G T17//. IV. c. 50, imposes a penalty upon any one 
 " Who shall wilfully ride upon any footpath or causeway by the side of 
 any road, &c. :" in the case of Rer/. v. Pratt, 3 L.R. Q.B. G4, it was held 
 that this Act was intended to apply only to footpaths or carriage-ways 
 by the side of the road, and not to footpaths generally. 
 
 The case of Jenneij and Runnacles v. Brooh turned on the construc- 
 tion of sec. 65. An order luas there served on an oivner to cut a hedge, 
 and he did cut some part ; but the surveyor thought the order not 
 properly complied with, summoned him before two justices, and had 
 him fined, and after ten days cut the hedge himself. The Court of 
 Queen's Bench held the order to be bad, for not specifying more par- 
 ticularly in what manner and to what extent the hedge was to be cut.
 
 li.3 CUTTIXG HEDGES BY SURVEYOPv. 
 
 This 'was a substautial defect, and not one of form, and the snrveyor 
 was held liable in trespass for cutting the hedge, though (as the jury 
 found) he had not cut more thau the order required, and the owner had 
 not cut so much, and though the latter had acquiesced, as was contended, 
 in the goodness of the order by partially obeying it. The surveyor had 
 no power to act except in the owner's default, which could not take place 
 without a valid order. Lord Dcnman, C.J. said, " The attention of the 
 owner ought to be called to the manner in which he is required to do 
 what is ordered. It is not enough to call upon him to cause the hedge 
 to be cut, pruned, aud plashed, when he may well be in doubt what 
 those words mean, nor to direct him to remove the said obstruction 
 complained of, without pointing out Avhat the obstruction is, nor whether 
 it is specifically limited to the exclusion of the sun and wind." On the 
 second trial the verdict was for the plaintiff, and judgment being signed, 
 a writ of error was brought in the Exchequer Chamber, which awarded 
 a venire cle novo. It was held, inier alia, that the exclusion of the sun 
 and wind beiug one of the injuries complained of, the order was bad in 
 part as not stating the extent to which cutting, &c., should take place 
 with reference to that injury. And semlle to cut, &c., so as to prevent 
 the sun and wind from being excluded, would have been sufficient 
 without any more precise order as to the extent of cutting. And ^vr 
 Curiam, the order, though informal, is good in part, and gave authority 
 to the defendants to cut, pinine, and plash the hedges, so as to remove 
 the actual obstruction to the carriage-way, occasioned by the branches 
 of the thorns, bushes, and shrubs forming part thereof, but no further. 
 
 On the new trial the jury had to inquire whether the defendants did 
 more than this, and assess the damages incurred by the plaintiff if they 
 did. In ex parte Whitemarsli the Court refused to grant a rule nisi for 
 a mandamus, to compel justices to issue their warrant to levy the 
 expenses of cutting a hedge, pursuant to this section, unless it appears 
 that a demand has been made of the expenses from the person sought to 
 be charged, and that the justices were informed of that demand. 
 
 To justify a surveyor of hiyhivays {Evans v. Oaldey) in talcing dmvn a 
 fence, under the statute 5 & 6 ^Yilt. IV. c. 50, s. G9, two things must 
 concur — 1st, the fence must be within 15 feet of the centre of the road ; 
 aud 2nd, it must be on the road. Here the two places enclosed never 
 were part of the road, as no carriage ever did or could go along the steep 
 bank at the pound (where the road was 22 feet wide), or over the rough, 
 uneven ground at Nichol's (where the road was only 9 feet wide) ; and 
 MauU J. ruled that if these two places at which the fences were put up 
 had never l)een used l)y the public as a part of the road, the surveyor 
 had no right to pull down the fences because they were within 15 feet
 
 TAKING DOWN HIGHWAY FENCE. ll:3 
 
 of the centre of tlie road. Lowm, v. Kay was also a case on the con- 
 struction of the G3rd section of the Highway Act, 13 Geo. III. c. 78, 
 which was repealed by the stat. 5 & 6 ^Yill. IV. c. 50. The language 
 of the 63rd section of the former act, is that if any/^';?fe (taking that as 
 the general word) shall be placed on any highway, the surveyor shall 
 have power to remove it ; and the question at the trial was whether the 
 fence was on the plaintiff's own soil or on the highway, and the jury 
 found that it was on the former. This decided that where the road is 
 not 30 feet wide, the surveyor may not make it so by removing tlie 
 fences on each side, unless the fence be actually upon the highway. In 
 an action by a reversioner against a surveyor of highways, for cutting 
 away a small portion of the soil of a bank or fence adjoining the public 
 road, under the supposed authority of 13 Geo. III. c. 78, s. lo, it was 
 held to be no answer that the fence was thereby in fact improved {Alston 
 V. Scales). The jury had to say whether any part of the plaintiff's fence, 
 which consisted of a bank surmounted by elder buslies, had been cut 
 away. Andjj^r Curiam: "The fence is not, as has been contended, to 
 be confined to the mere bushes, but embraces also the substantial part 
 of the enclosure upon which the hedge was supported. The removal of 
 the smallest portion of the soil must in general be esteemed an injury 
 to the land, because it tends to alter the evidence of title." 
 
 The presumption of law is, that ivaste land adjoining the road be- 
 longs to the owner of the adjoining enclosed land, whether freehold, 
 leasehold, or copyhold [Doe dem. Pring v. Pearseg) ; and in Grove v. 
 West, Gibbs C.J. said, " Primd facie the presumption is that a strip of 
 land lying between a highway and the adjoining close belongs to the 
 owner of the close, as the presumption also is that the highway itself 
 ad medium filum vice does. But the presumption is to be confined to 
 that extent ; for if the narrow strip be contiguous to or communicate 
 with open commons or larger portions of land, the presumption is 
 either done away or considerably narrowed, for the evidence of owner- 
 ship which applies to the larger portions, applies also to the narrow 
 strip which communicates with them." Holrogd J. remarked on tiiis 
 point, in Doe dem. Pring v. Pearseg, " When a grant of land near to a 
 road is made (even when it is enclosed and separated from the land 
 adjoining), it appears to me that the ])rmd facie presumption is that 
 the land on that side of the fence on which the road is, passes likewise 
 with it. Generally speaking, where an enclosure is made, the party 
 making it erects his bank and digs his ditch on his own ground, or on 
 the outside of the bank. The land which constitutes the ditch in point 
 of law is a part of the close, though it be on the outside of the bank. 
 And if something further is done for his own convenience, wh.en that
 
 Ml. CATTLE STRAYING ON HIGHWAY. 
 
 which constitutes the fence is dug out from his land, as, for instance, 
 if ti small portion of nninclosed land near a public or private way is 
 left out of the enclosure, to protect and secure the occupation of that 
 part of the land which is inclosed, that in point of law is a part of the 
 close on which the enclosure is made. But the presumption that 
 waste land adjoining a road belongs to the owner of the adjoining in- 
 closed land, a])[tlics only to cases between the freeholder or copyholder, 
 or those claiming under them, and the lord and those claiming under 
 him ; and does not ap[)ly to cases between freeholder and freeholdei-, 
 where both claim under the same title {White v. Bill). Where the 
 occupier of a field called The Hall Close took down the old fence and 
 added to the field a strip of land adjoining a public road, in an action 
 for a trespass committed upon the strip of land about a year after it 
 had been so taken in, the declaration described the locus in quo as The 
 Hall Close, and it was held that it was properly described {Brounilow 
 V. Thomlinson, 1 M. & Gr. 484). 
 
 27 & 28 Vict. c. 101, s. 25, repeals the 74th section of the 
 Highway Act, 5 & 6 Will. IV. c. 50, and renders the owner liable to a 
 penalty if cattle, horses, sheep, or swine are found lying about a 
 highway "notwithstanding they are under the control of a keeper at 
 the time," Lcmrcncc v. King, 3 L, R. Q. B. 345 ; and an owner of 
 cattle is liable to a penalty if his cattle are found straying on the 
 metalled part of a highway notwithstanding he' has a right of pasturage 
 on the sides of it, Goldinij v. Sloclcing, 4 L. Pt. Q. B. 516 ; and Freestone 
 V. Casswell, 4 L. R. Q. B. 519. 
 
 The question of raitwdij fences was slightly touched upon in Sliurrod 
 Y. The London and Xorth Western Raihvai/ Comjiany, where some sheep 
 got on the railway after dark, in consequence of defect of fences, and 
 were run over by an express train. It was lield that trespass did not 
 lie against the company, and that if the cattle had a right to be on the 
 railway, the plaintiff's remedy was l_)y action on the case, for causing 
 the engine to be driven in such a way as to injure that right : but that 
 if the cattle were altogether wrong-doers, there was no neglect or mis- 
 conduct for which the company were responsible. And per Pcirlce B., 
 " If the sheep had any excuse for being there, as if they had escaped 
 through defect of fences which the company should have kept up, they 
 were not wrong-doers, though they had no right to be there ,•• and 
 their damage is a consequent damage from the wrong of the defen- 
 dants in letting their fences be incomplete or out of repair, and may be 
 recovered accordingly in an action on the case." This case was 
 followed by Fawcett v. Yorlc cmd Korth Midland Faihrai/ Comjuinij. 
 The plaintiff's* horses had leaped over the fence of a field, in which
 
 CATTLE STUAYING ON RATLWAVS. 143 
 
 lliey liad been placed, into a second field, and from that over a broken 
 gate into a third field, all three being the plaintiff's fields, and had 
 strayed through an open gate of the third field into a highway crossed 
 by the railway on a level. The railway-gate, which was placed as a 
 fence across the highway where it was so crossed by the railway, was 
 also open ; and the horses, which had strayed through this gate on to 
 the railway, were there killed by one of the company's trains. For 
 the defendants it was contended that the horses were, under the 
 circumstance, trespassers on the highway, and that the issue taken on 
 the principal plea (that the said horses were not lairfalhj in the said 
 highway at the time they so went, strayed, erred, and escaped there- 
 from, as alleged, &c.) must be found for them. Wighimaii J. directed 
 that as against the defendants, who were bound to keep the railway- 
 gate closed, the horses were lawfully on the highway ; and a verdict 
 was found for the plaintiflF. Leave was given to move to enter the 
 verdict for the defendants in case the Court should be of opinion that 
 the horses were not lawfully on the highway ; but a rule nisi for that 
 purpose was discharged by the Court of Queen's Bench. 
 
 Patteson J. thus distinguished this case from. Sharrod v. London and 
 North Western Railway Company : " There the sheep got on the line 
 without any default on the part of the company. Here the company 
 did not keep the -gate shut." His lordship also thus distinguished it 
 from Dovaston v. Payne : " The cattle there were trespassers prima 
 facie; and it lay on the plaintiff in replevin to excuse their presence 
 in the avowant's field, and show that they were not liable to be 
 distrained. Besides, a person whose field adjoins the highway may 
 leave his field open and permit cattle to pass over it ; he cannot 
 distrain them if he has sufi'ered them to come there ; but he commits 
 no breach of duty by leaving the field open. Here there is an obliga- 
 tion cast upon the company by statute to keep the gate shut." His 
 lordship added, " I think there is no doubt in this case. . The original 
 special act of this company provided that the company should keep 
 the gates across the railway, and should keep them constantly closed. 
 That enactment, in common with others of the same kind, is altered 
 by stat. 5 & 6 Vict. c. 55, s. 9. Now it is to be observed that the 
 words here used are, that the gates sliall be such as to ' prevent cattle 
 or horses passing along the road from entering upon the railway while 
 the gates are closed;' not to 'prevent cattle lawfuUy passing,' &c. 
 In this declaration the pleader has inserted that word ^lawfully ;' and 
 there is an express issue whether the horses were lawfully on the road, 
 across which there was a gate which was left open. It is contended 
 that though there was a highway there, the horses might have been 
 
 h
 
 1 IG OBLIGATION OF COMPANY TO FENCE. 
 
 distrained Ity the owner of the soil (I may remark in passing, that I 
 never heard of the owner of soil which was set aside as a highway 
 distraining cattle for trespassing on the hard snrface fenced off, and I 
 do not believe he could do it), or at least that nnder stat. 5 & C 117//. 
 lY. c. 50, s. 74, they might have been impounded by the surveyors 
 of the highway. Assuming this to be so, I do not learn that the 
 railway company are in any way made conservators of the highways. 
 By their neglect the gate was open. The question comes to be, then, 
 Were the horses in the road lawfully as against this company ? I do 
 not think it was necessary to insert that word ' lawfully,' for the act 
 directs that the gates shall be constantly kept closed ; and I think 
 that imposes an obligation to keep them closed, as against everything, 
 whether straying or passing : but at all events the horses were in the 
 road lawfully as against the company, and consequently the rule mnst 
 be discharged." 
 
 The facts in liidrlis v. 'flic Binniiujhmn Jiuiction Railway Company 
 were nearly identical with those in Sharrod v. London and Norih 
 Wesfeni Railway Con^mny. It was there decided that the duty im- 
 posed upon railway companies by the Eailway Clauses Consolidation 
 Act, 1845, 8 & 9 Vict. c. 20, s. G8, as to the making and repairing of 
 fences between their railways and the adjoining lands, is not more 
 extensive than that imposed upon ordinary tenants by the common law. 
 At common law the comj)any icouU only he hound to fence ayainst an 
 adjoininy owner, and the question which the judges here decided in the 
 negative was, whether that obligation was extended by the words of 
 the Act. Therefore, where 50 of the plaintiff's sheep escaped from his 
 close, through his own defect of fences, and getting into the intervening 
 close of a third party, escaped thence on to the defendants' railway, and 
 were killed by a train, the company were not liable. There was a 
 joinder in demurrer. In delivering judgment for the defendants, 
 Jervis C.J. said, " The admitted facts are these, that the company were 
 bound to make and maintain fences in the terms of the statute ; that 
 the plaintiff was the owner of a close adjoining a close belonging to the 
 Great Northern Railway Company, Avhich abutted upon the defendants' 
 railway ; the fences of which close of the plaintiff, he, the plaintiff, was 
 bound to repair ; and that by defect of his fences, the plaintiff's sheep 
 escaped into the adjoining close, and thence passed on to the defendants' 
 railway, in consequence of the want of a fence between it and the close 
 of the Great Northern Railway Company, and were killed. There is no 
 allegation that the action could have been avoided, or that the company 
 had by themselves, or their servants, been guilty of any negligence in 
 that respect. It is admitted that the company were bound to repair as
 
 LIABILITY OF RAILWAYS AS TO LEVEL CROSSINGS. 117 
 
 against the owners of the adjoining lands, but it is insisted that the 
 plaintiff under these circumstances is not entitled to recover. 
 
 "The rule upon the subject is well laid down in the notes to Pomfret 
 V. Ricroft : ' The general rule of law is, that I am bound to take care 
 that my beasts do not trespass on the land of my neighbour ; and he is 
 only bound to take care that his cattle do not wander from his land, 
 and trespass on mine (Tenant v. Gold/cin ; Chinrhill v. Evans ; Boyle v. 
 Tamlyn) ; and therefore this kind of action will only lie against a person 
 who can be shown to be bound by prescription or special obligation to 
 repai« the fences in question for the benefit of the owner or occupier of 
 the adjoining land. And no man can be bound to repair for the benefit 
 of those who have no right. Therefore the plaintiff cannot recover for the 
 damage occasioned to his cattle by their escape from the adjoining close, 
 through the defect of the defendants' fences, unless the plaintiff had an 
 interest in that close, or a licence from the owner to put them there.' 
 Applying that rule to the facts of the present case, had the i3laiutiff 
 any right to have his sheep on the land adjoining the defendants' 
 railway ? It is admitted that they were there not by right, nor under 
 any licence from the owners of the close, but through a breach of duty 
 on the part of the plaintiff himself. It is clear that if the defendants 
 are only liable to repair so as to protect the owners of the adjoining 
 lands, the plaintiff cannot maintain this action. The next question is, in 
 ^vhat respect does the statute vary the ordinary common law liability ? 
 It seems to me, that, so far from varying the responsibility of the defen- 
 dants, the statute has most properly taken the common-law rule as the 
 measure of their liability. The G8th section enacts that the company 
 shall make and maintain ' sufficient posts, rails, hedges, ditches, mounds, 
 or other fences for separating the land taken for the use of the railway 
 from tlie adjoining lands not taken, and protecting such land from 
 trespass, or the cattle of the owners or occupiers thereof from straying 
 thereout by reason of the railway.' It seems to me that this liability 
 is not more extensive than the ordinary common-law one. It is said 
 that in adopting this view we shall be conflicting with the decision of 
 the Court of Queen's Bench in Faivcdt v. Yovli and Norih Midland 
 Railvay Comi)any. That, however, is not so. The Court there held 
 that independently of the common law, the statute 5 & 6 Vid. c. 55, s. 9, 
 imposed upon the company an unqualified and unlimited obhgation to 
 Iccp the gates at the end of level-crossings closed against all persons or 
 cattle upon the highway, whether lawfully there or not, and that they 
 were liable to an action for an injury arising from a breach of that duty. 
 In the third place it was insisted that even if there was no common-law 
 liability, and the statute imposed on the defendants no additional duty, 
 
 L 2
 
 IJ^S CATTLE ESCAPING ON TO llAILWAY THROUGH STATIONS. 
 
 the dangerous nature of the trade carried on by the defendants cast 
 upon them an obligation to adopt more than ordinary precautions." 
 
 " Bex V. Pease, however, is a distinct authority the other way. The 
 legislature has authorised the formation of the railway, and has done all 
 it thought necessary to protect the public and the adjoining land-owners, 
 by requiring the company to fence off the land adjoining the railway. 
 For these reasons, it seems to me the defendants are entitled to the 
 judgment of the Court." Williajns J. added, "The principle of the 
 common law and the authorities on this subject are placed in a very 
 clear point of view in the case of Bovasfon v. Payne. Here the plaintiff's 
 sheep, it is conceded, had escaped into an adjoining close through the 
 plaintiff's own default, and were there trespassing. The only question, 
 therefore, is whether the liability thrown upon the defendants by tlie 
 statute is limited to the common-law obligation to fence against the 
 adjoining lands, or is a general liability to fence against the whole world, 
 so as to bring this case within the principle of Fawceit v. Yorlc and 
 Korili Midland Railway Company. I am of opinion that the act of 
 parliament creates no such general duty, but only a duty as between 
 the company and the owners of the adjoining lands and those in privity 
 with them, and that a stranger as this plaintiff is cannot found an action 
 upon an alleged breach of that duty." And 2)er CressweU J. : " The 
 case of Pex v. Pease is a strong authority to show that the legislature 
 having legalised railways, they are not subject to any liability beyond 
 the ordinary common-law liability, except where the legislature had 
 thought fit to impose it. It seems to me that the duty or obligation 
 cast upon this company by the 8 & 9 Vict. c. 20, s. 68, for the protection 
 of the o-miers or occupiers of the adjoining lands, is co-extensive with, 
 and goes no further than the prescriptive liability of the servient tenant. 
 That being so, sheep trespassing upon a close adjoining the railway arc 
 not within the protection." 
 
 This case was followed by the Manchester, SlieffieJd, and Lincolnshire 
 Pailivay Com])any (app.) v. Wallis (resp.), which was an appeal by the 
 Company, the defendants below, against the ruling of the Leicester 
 County Court judge in an action to recover damages for the destruction 
 of two horses belonging to them, which, owing to the alleged neyliymce 
 of Die comjKiny's servants in leaving 02mn a gate and other openings leading 
 on to their railvay, had got upon the line and been killed by a train of 
 the defendants' running against them. £35 was claimed as the value 
 of the horses, and £0 for expenses incurred in attending on them after 
 the accident. The plaintiffs, who were two farmers, residing in Torksey, 
 Lincolnshire, had two horses in a close of their occupation, through 
 which two public highways pass. At each end of the close there is a
 
 FENCE BETWEEN RAILWAY AND HIGHWAY. 11-9 
 
 gate to prevent the cattle grazing in the close from straying out of the 
 close, and these gates are contiguous with and form part of the plaintiiTs' 
 fence. It is S7q)jwsed that one of these gates was left open, and that 
 the horses strayed through it into the highway leading to Torksey. 
 About 100 yards from the gate of the close, is a swing-gate leading into 
 the Torksey station, which is frequently propped open during the day, 
 but closed and locked at night. On the day in question (January l.jth, 
 1853) the horses strayed into the station, and were turned out aljout 
 six o'clock in the evening. Before the gate was closed for the night 
 they got in again, when the defendants' servants accidentally locked 
 them in. Their footmarks were traced through the gate to the station- 
 yard, and thence through an opening in the fence, which had been made 
 by the defendants' servant?, by taking down the rails for the purpose of 
 carrying or carting something from or to the railway, and which sepa- 
 rates the station-yard from the line of railway, to and upon the railway, 
 where they were killed by a goods train. It seemed that the gate of 
 the close had most probably been left open by travellers along the 
 highway, and evidence was given that the gate into the station-yard was 
 frequently left open, and cattle had been seen to stray through it, and 
 that the defendants, who had kept it shut since the accident, had often 
 been warned about it. It was contended by the plaintiffs, that the 
 defendants were liable to make good the loss of the horses by reason of 
 the alleged negligence in permitting the gate of the station to remain 
 open and the defect in the fence dividing the station-yard from the line. 
 The learned judge declined to nonsuit, and put two questions to the 
 jury — first, whether they were of opinion that there had l)een negligence 
 on the part of the defendants, and that the injury of which the plaintifls 
 complained was to be attributed to their negligence ; and secondly, 
 whether the plaintiflFs had been guilty of any negligence which con- 
 tributed in any way to the accident. The jury found the first question 
 in the affirmative, and the second in the negative, and gave £35 damages. 
 The Court of Common Pleas allowed the appeal with costs: and Jcrvis C.J. 
 thus delivered the judgment of the Court: " After the finding of the 
 jury, we must assume that the cattle of the respondents without any 
 fault on their part strayed into the public road adjoining the railway, 
 and through defect of the appellants' fences got upon the railway and 
 were killed. The question is, whether upon these facts the appellants 
 are liable in this action ? We are of opinion they are not. This is 
 not the case of a railway crossing a highway upon a level, with a gate 
 on either side of the railway, but of a highway running alongside of a 
 railway. The only enactment which is applicable to such a case, is the 
 G8th section of the Railway Clauses Consolidation Act, 8 & 9 Vicf. c. 20.
 
 150 OCCUPATION EOAD ACROSS EATLWAY. 
 
 It provides that the company shall make and at all times thereafter 
 maintain the following works, for the accommodation of the owners and 
 occnpiers of land adjoining the railway — that is to say, amongst other 
 things, ' sufficient posts, rails, hedges, ditches, momids, or other fences, 
 for separating the land taken for the use of the railway, from the 
 adjoining lands not taken, and protecting such lands from trespass, or 
 the cattle of the owners or occupiers thereof from straying thereout by 
 reason of tlie railway, together with all necessary gates made to open 
 towards such adjoining lands, and not towards the railway, and all 
 necessary stiles.' Certainly this section makes a very insufficient pro- 
 vision for the protection of the public, where a railway runs alongside 
 a public highway ; but, nevertheless, it is clear that it was intended to 
 apply to such a case ; for if not, there is no section which casts the 
 obligation to fence upon the company in such cases. 
 
 " The highway, therefore, is to be considered adjoining land not taken, 
 and the same construction must be put upon the same words, whether 
 that adjoining land be a public highway or a jirivate close. Wliat, then, 
 is the nature of the obligation ' cast upon the railway company by this 
 section? They are bound to fence so as to keep the cattle of the owners 
 or occupiers of the adjoining lands not taken from straying thereout. 
 In Rk'Tcetts v. Birmingham Junction Raihoaij, this Court has already 
 determined that the obligation of the railway company by this section 
 is the same as it would have been at common law, if they had been 
 bound by prescription to repair the fences ; in other words, that they 
 were only bound to keep up the fences against the cattle of the owners 
 or occupiers of the adjoining land. Were, then, the cattle of the 
 respondents at the time they were killed the cattle of the owners or 
 occupiers of the adjoining land — the highway ? AYe think they were 
 not, and the case of Dovaston v. Payne appears to us to decide that 
 question." 
 
 And scmlle the C8th section of the 8 & 9 Vict c. 20, which provides 
 for the fencing of railways from the adjoining lands, is a substitute for 
 the 10 th section of the 5 & 6 Vkt. c. 55. 
 
 FaivccU V. The YorJc and North Midland Railway Company was relied 
 on by the plaintiff in Ellis v. London and South Western Railway Gom- 
 pany. Here the plaintijf had fields on each side of the defendants' 
 railway, and an occupation-way by w^hich his cattle were driven from 
 the fields on one side of the railway to those on the other, and along 
 which there was an ancient public footpath, crossing the railway on a 
 level. The defendants erected lofty gates on each side of the railway, 
 and gave each person who had a right to use the occupation-way a 
 key ; but there was no means of the puljlic using the footpath, and in
 
 rOOTPATH ALONGSIDE RAILWAY. 151 
 
 fact the defendants were not aware when the gates were erected that 
 there was any highway. The plaintift^'s key was lost, and his men 
 used to fasten the gate by thrusting a piece of wood through the staple. 
 There was some evidence that a boy who drove the pkiintitf's cattle 
 through the gates in the evening had left one of them open ; and it 
 was also suggested that it might have been left open by some careless 
 person using the footpath. Two of his colts strayed along the occu- 
 pation road through the open gate, and were killed by a train. Cress- 
 well J. told the jury that the defendants were perhaps not obliged to 
 substitute a key for that which the plaintiff had lost, but there was no 
 evidence of notice of the loss, or of any request to be supplied with 
 another ; and he asked them whether they thought the plaintiff had 
 been guilty of negligence, telling them if his negligence had contributed 
 to the accident they ought to find for the defendants, who had a 
 verdict. A rule for a new trial, on the ground that the question of 
 negligence on the part of the plaintiff did not arise, inasmuch as the 
 defendants were guilty of a breach of a positive duty in not carrying 
 the railway either over or under the footpath, or providing gates or 
 stiles which might be used for passengers, and also that there was a 
 breach of positive duty in not keeping the gates closed, was dis- 
 charged. 
 
 Pollock C.B. said : " It was a question for the jury, whether the 
 (.plaintiff by his own neglect had contributed to the accident. A foot 
 passenger must seek his remedy for an obstruction of this kind in a 
 court of law, and he Ms no right to prostrate the fence, a proceeding 
 which might be productive of the most lamentable consequences, lead- 
 ing not only to the destruction of any cattle which may stray upon the 
 line of railway, but endangering the lives of passengers travelling 
 thereon, as the bodies of such animals may cause a train to run off the 
 line. Because the defendants have only partially done that which they 
 were empowered to do, it is not therefore illegal quasi ah initio, but 
 they may be compelled to complete it by mandamus:' And ]^)er Martin 
 B. : " Assuming that there was a public footway, and the gates were 
 improperly erected, the learned judge properly left the question to the 
 jury. In every case of this description the rights and obligations of 
 parties towards each other are correlative. Here the defendants deli- 
 vered a key of the gate to the plaintiff, which he accepted, aud took 
 npon himself the obligation to take care of the gate. Before any obliga- 
 tion could arise on the part of the defendants to take care of the gates, 
 there ought to have been a request from the plaintiff that they should 
 do so ; and no communication whatever appears to have been made 
 with reference to the matter" (26 L. J. Exch. 349).
 
 15a COMPANIES BOUND TO LEAVE GATES SHUT. 
 
 lu Fohcrh V. 77ie Greed Western BaiJwedj Company the question was 
 whether a company were bound to fence off one part of their j^remises 
 from another. The declaration stated that the defendants were pos- 
 sessed of a railway and station, and yard adjoining, through which 
 cattle carried by the railway to the station were obliged to pass in 
 going from the station to a highway, and that by reason of the premises 
 the defendants were bound to maintain <70or? and sufftcient fences hetaren 
 the railwai/ and the yard, so as to prevent cattle lawfully in the yard 
 from straying on the railway, with a breach that they did not maintain 
 such fences, whereby the plaintiff's bull was killed, was held by the 
 Court of Common Pleas to be insufficient, as there was no such liability 
 to fence as alleged. And })er Croivder J. : " I see no ground at all for 
 holding the defendants liable, for there has been no argument, nor 
 reference to any case, to show that there was any legal liability to 
 maintain a good and sufficient fence between the railway and the yard. 
 This is a case of not taking proper means to prevent the cattle from 
 straying, and if there were such a duty an action would lie. But the 
 declaration rests on this, that the defendants were bound to maintain 
 fences, and they clearly were not ; and as the loss is said to arise from 
 that want of fences, the defendants are not liable." And per Willes J. : 
 " It is c[uite consistent w'ith the declaration that the animal was 
 allowed to remain in the yard till it suited the owner to take it on, and 
 that it was not in the charge of the company at all. It may be a 
 question whether in respect of carrying on a dangerous trade the defen- 
 dants would be liable, but I say nothing as to that." 
 
 Necjlect of i)laintiff to fasten gate oi)ening on to railway. — Fawcett y. 
 York and North Midland Railway ComjKiny (16 Q. B. 610), was cited 
 in Haifjh v. London and North Western Railway ComjKiny, where 
 pony strayed on to line and was killed. The evidence was that 
 plaintiff's practice was to fasten gates by a catch by day, and a lock by 
 night only, and that defendants knew it. The gate might have been 
 blown open by the wind. The Court of Queen's Bench thought that 
 the plaintiff had the means of making the gate secure, and had not 
 used them, and confirmed the defendants' verdict. 
 
 Company hound to leave gate shift where tramway adjoins railivay. — 
 In Marfell v. South Wales Railway Comjiani/, the defendants' railway 
 ran for some distance parallel to a tramway, being separated from it by 
 a fence, also their property, down to a point whore the tramway crossed 
 the railway. At this point the defendants had placed gates which could 
 be shut, so as to separate the tramway from the railway, but which by 
 plaintiff's evidence never were shut. The plaintiff was licensed by 
 defendants, on payment of a certain toll, to use the tramway with
 
 SHEEP KILLED ON ItAILWAY. 153 
 
 trucks and horses, one of which, alarmed at an approaching train, 
 swerved from the tramway through one of the open gates on to the 
 railway, and was killed by the engine. It was found that there was no 
 negligence on plaintiff's part, but on defendants' in leaving the gate 
 open ; and it was held iier Williams J., and ByJes J. (Erie J.C. diss.), 
 that the plaintiff had a right to expect ordinary care and diligence in 
 keeping the gate shut, and that the defendants were liable for the value 
 of the horse. And ^j^r Curiam, the 8 ti- 9 Vict. c. 20, s. G8, which im- 
 poses on railway com]^)anies the obligation to fence as against ailjoining 
 owners, does not apply to cases like the 2>ypsent, where adjoininy land 
 lielonycd to com})any. And 2^er Bytes J., " Suppose the defendants to 
 be owners of a meadow, in which there is a deep chalk pit, fenced round 
 by them to prevent cattle falling in, but with a gate in the fence to be 
 used only by the defendants when they should desire to remove chalk 
 from the pit. Suppose the defendants for reward to take in cattle to 
 agist in that meadow the same question arises. Are the defendants 
 under any obligation to exercise any degree of care in the use of the 
 gate ? It is clear on the authorities, that they are in the supposed case 
 bound to exercise care in the use of the gate, and are responsible if they 
 leave the gate open." 
 
 Sheep killed hy a train. — In Besant v. The London and South Western 
 * Railway Company, the plaintiff was a farmer having land adjoining the 
 defendant's line, and feeding his sheep on turnips. For this purpose 
 he put them into a fold of which three sides were formed by hurdles, 
 whilst a quickset hedge and a small ditch belonging to the railway 
 made the fourth side. In the night the sheep got through the railway 
 hedge on to the line, and 25 of them were killed. Mr. Baron Martin, 
 in summing up, observed that by the Act of Parliament a duty was 
 cast upon the railway company of making, keeping and maintaining a 
 proper fence between the line and the adjoining fields for the words 
 were, " That the company shall at all times make and maintain suffi- 
 cient posts, rails, hedges, ditches, and mounds, or other fences, for 
 separating the land, for the accommodation of the owners and occupiers 
 of the land adjoinmg the railway, and to prevent the cattle of the 
 owners from straying thereout.'' The question in this case was 
 whether this was such a fence. If sheep strayed in search of food, 
 one would suppose they would go where there was plenty of food, and 
 not upon a barren railway line. Was there any proof of negliyence in 
 the plaintiff in not placiny hurdles to protect the sheep from the hedge, 
 instead of iising the hedge as one fence of the fold 1 If not, the other 
 defences failed, and the company would be responsible. It was the 
 duty of the company, and not of the plaintiff, to put up a sufficient
 
 154 HORSES GEAZING ON ROADSIDE. 
 
 fence for the purpose of preventing the sheep from straying. Why did 
 the sheep stray ? "Was it not from the fence being insufficient ? 
 The jury must try the question as men of common sense. Probably 
 the sheep were alarmed by a dog, for sheep were not straying animals. 
 The jury found a verdict for the plaintiff, damages £30, in addition to 
 the £20 paid into court, and a rule for a new trial was refused. 
 
 In Morn'.^ v. Jeffries (1 Q. B. 261), horses grazing on a road-sido 
 under the charge and control of a man duly authorized arc not liable to 
 be impounded as " wandering, straying, or lying," under d Geo. IV. c. 
 95, s. 75.
 
 CHAPTER V. 
 
 DANGEROUS ANIMALS. 
 
 Whoever keeps an animal accustomed to attack and bite mankind 
 with knowledge that it is so accustomed, is iirlmd facie liable in an 
 action on the case, at the suit of any person attacked and injured by 
 the animal, without any averment of negligence or default in the securing 
 or taking care of it. The gist of the action is the Icccping the animal 
 after knowledge of its mischievous propensities {Mag v. Burdctt). But 
 2Jcr Curiam : " It may be that if the injury was solely occasioned by 
 the wilfulness of the plaintiflp, after warning, that may be a ground of 
 defence, by plea in confession and avoidance " {ib.). In Leame v. Brag, 
 Lord EUenhorough C.J. says : " If I pat in motion a dangerous thing, 
 as if I let loose a dangerous animal, and leave to hazard what may 
 happen, and mischief ensue to any person, I am answerable in trespass." 
 Lord Eolt C.J. also mentioned it as Lord Hale's opinion, that if throu"-h 
 negligence the beast go abroad, after the owner has had notice of its 
 mischievous qualities, and kill a man, it is manslaughter in the owner 
 {Rex V. Huggins, 2 Ld. Eaym. 1583). 
 
 The argument in Jenkins v. Turner turned partly on what were the 
 animals which might be the subject of biting, within an owner's coo-ni- 
 zance. This was an action on the case against Turner j;ro eo quod 
 scienter retenuit a certain boar ad mordendum et iwrculicndum animalia 
 consuetum, and which percussit et momordd a mare of the plaintiff's, of 
 which bite she died. The boar had bitten a child before, of which the 
 defendant had notice. It was contended in arrest of judgment, that 
 " the word animalia was too general and uncertain, for it may be they 
 were such animals as, though the boar used to bite them, and the 
 defendant knew it, yet it would be no offence in the defendant to keep 
 the boar still ; as if the boar bit frogs and mice, which are animals." 
 Powell J. said, "that if a man has a dog which bites sheep, and the 
 man has notice of it and keeps the dog, and afterwards it bites a mare, 
 an action lies, but the declaration must be special." His lordship also 
 added, what certainly admits of considerable dispute, viz., that " there 
 may be a difference between a boar and a dog ; for it is the nature of a
 
 156 FEROCIOUS BOAR. 
 
 dog to kill animals wliicli arc fcrcr. nainrcv, as hares, cats, &c.; but it is 
 not natural to a boar to kill anytliino- ; and therefore in the case of a 
 dog- there might have been a question whether the word anhnalia had 
 been good in the declaration, because it might have been intended of 
 some such animals as they naturally bite and kill. But since a boar 
 does not naturally kill any, it shall be intended as before is said." 
 And therefore the plaintiff had judgment, as after verdict, the Court 
 intended that anhnaUa were such animals as could support the action 
 (1 Ld. Raym. 110). 
 
 Ferocious do//. — To sustain an action against a person for negligently 
 keeping a ferocious dog, it is not necessary to show that the dog has 
 bitten another person before it bit the plaintiff : it is sufficient to show 
 that the dog has to the knowledge of the o^^-ner shown a savage dispo- 
 sition by attempting to bite (Worth v. GiUinff, 2 L. R. C. P. 1). 
 
 In Fletcher v. Fiijlmuh, 1 L. R. Ex. 2G5, it was held that one, who, 
 fca- his own purposes, brings upon his land, and collects and keeps there, 
 anything likely to do mischief if it escapes, is, prima facie, answerable 
 for all the damage which is the natural consequence of its escape. Sec 
 also Smith v. FMclier, 7 L. R. Ex. 305. 
 
 But in the case of Smith v. Great Eastern, Railway Comiiany, 2 L. R. 
 C. P. 4, where a passenger was bitten by a stray dog at defendants' 
 station, the Court decided in favour of the defendants, on the ground 
 that there was no evidence of negligence on their part. 
 
 The difficulty in Emery v. Peal^e seemed to be, whether the habits of 
 the dogs had ever reached the defendant's ears. This was a Warwick 
 Assize action against a clergyman for keeping a dog accustomed to bite 
 mankind. His two Skye terriers, while in company with Mrs. Peake, 
 who was visiting some sick poor, flew on the plaintiff, and bit him in 
 the leg and ancle, lie exclaimed, " Oh, dear ! I am lit ! " and the 
 lady expressed her sorrow. The leg bled very much, and became so 
 bad that he could not work, in consequence of the deep sore and wounds 
 BO occasioned, and he required medical attendance for two months. 
 The defendant refused to see him when he called at the vicarage, 
 and sent him half-a-crown. It was proved that the dogs had often 
 before attacked and bitten people, and that among others the family 
 butcher and his son had been bitten at, and had their trowscrs torn, 
 though their boots saved their legs. Both these witnesses had com- 
 plained to the servants. Mr. and Mrs. Peake gave the dogs a good 
 character: the former had heard no complaints against his dogs, 
 though the latter had heard of the trowser-tearing. Other witnesses 
 also deposed to the peaceable dispositions of "Mustard" and "Pepper;" 
 but there was a verdict for the plaintiff, damages .-EGO.
 
 FEUOCIOUS DOG. 157 
 
 In the case of Gladman v. Jolinson, 30 L. J. (N. S.) C. P. 153, the 
 plaintiff was bitten by the defendant's dog : the defendant was a milk- 
 man, and was assisted in his business by his wife. To establish the 
 scienter a witness was called, who stated that she had made a 
 formal complaint to defendant's wife, for the purpose of its being- 
 communicated to the husband, of the dog; haviug bitten her nephew, 
 held, that there was evidence of the husband's knowledge of the dog's 
 propensity to bite ; and in Baldwin v. CasMla, 7 L. R. Ex. 325, that if 
 the owner of a dog appoints a servant to keep it, the servant's know- 
 ledge of the dog's ferocity is the knowledge of the master. See also 
 Ajjplehee v. Percy, 9 L. R. C. P. G47. 
 
 The Court of Queen's Bench decided in Hartley v. Harriman that 
 evidence of the dogs Veiny accustomed to attacTc men did not support a 
 scienter that they were accustomed to attack sheep. Here the plaintiff 
 had sent the gardener with his compliments to the defendant, to sny 
 that he feared there would be danger if his dogs often crossed the field 
 where his sheep, which were of a peculiar breed, were feeding. The 
 defendant replied that he kept dogs to defend his house, and would if 
 he pleased keep fifty more. When the gardener took the message he 
 also told the defendant that he had been attacked by the dogs at the 
 plaintiff's own door. There was other evidence that the dogs had 
 attacked men, and that a voice had once been heard on the defendant's 
 premises calling them off, and also that they had once or twice run 
 after sheep ; but there was no proof that they had ever bitten or 
 harmed any sheep before this event, and it was contended that there 
 was no evidence to support the scienter. Wood B. overruled the ob- 
 jection on the ground that there was evidence of the dogs having 
 attacked different men, and particularly the plaintiff's gardener, to the 
 knowledge of the defendant. The jury found a verdict for the value 
 of the sheep, but the Court made the rule absolute for a new trial. 
 Lord Etlenlorouyh said: " The plaintiff has, I fear, tied up his com- 
 plaint by the allegation of the particular habits of those dogs (viz., 
 that ' they were used and accustomed to hunt, chase, bite, worry, and 
 kill sheep and lambs'), and of the defendant's knowledge of those 
 habits. For unless it be inferred that a dog accustomed to attack men 
 is ipso facto accustomed also to attack sheep, there is no evidence to 
 support this declaration." But semble, that an averment that the dogs 
 were of a ferocious and mischievous disposition would be sufficient in 
 an action brought for an injury to plaintiff's sheep, without alleging 
 specifically that they were accustomed to bite and worry sheep (ib.). 
 
 The Court of Session in Scotland held in Orr v. Fleminy, by three 
 judges to one, that no scienter need be proved to make the master of a
 
 15S SHEEP WORRYIXG. 
 
 dog who worries sheep liable. The defence was that there was no proof 
 that the foxhound iu question had shown any previous disposition to 
 attack sheep, and the Englisli cases were relied on. And^w Lord Cod- 
 hirn : " The law of England allo^YS each dog to have one worry with 
 impunity." Geftring x. Jlorgan was a later case of English sheep 
 worrying. Upon the trial of an action in the Monmouth County Court 
 for injuries, which were stated at £37 4.s-., to plaintiif's sheep hy 
 defendant's dogs, it was proved that four years before the same dogs 
 had, to defendant's knowledge, bitten a child eight years of age, who 
 was passing through del'endaut's Ibid in the daytime. It was held by 
 the Court of Queen's Bench that upon this evidence the judge was 
 justified in giving judgment for the plaintiff, and the judgment was 
 affirmed with costs (5 W. E. 53G ; E. T. 1857, Q. B.).. 
 
 Lord Cam2)l}€ll C.J. said, "■ I am of opinion that our judgment should 
 be given for the plaintiff, even according to the law of England. Accord- 
 ing to the law of Scotland there is no occasion to show the previous 
 habits of the animal, or the scienter; and when an injury has been done 
 to an innocent person, it certainly seems more reasonable that the loss 
 should fall upon the owner of the animal which has done the mischief, 
 than upon the person injured : but Y confine myself now to the law of 
 England, which requires ihe allegation and pr oof of a previous lad hahit 
 hioini to the master. Now in the County Court there is no declaration; 
 but according to Hartley \. Harriman, it would be enough to allege that 
 the dogs were of a ferocious disposition to the knowledge of the owner. 
 Assuming, then, the declaration to have been in that form, can it be 
 said that there was in this case no evidence in support of that allegation, 
 when it is found that four years before the dogs had bitten a child eight 
 years old, as it was passing through the fold in the daytime ? In ray 
 opinion that was enough evidence to justify the judge in concluding 
 that the dogs were of a ferocious nature. According to Smith v. Pelali, 
 one instance of previous ferocity is sufficient, and though I would not 
 pronounce judgment of svs.jm- colt, upon the dog who had so offended, 
 I think he should ever afterwards be cautiously guarded, and that if he 
 is again guilty of ferocious violence, his master must be answerable for 
 it." And 2)er Cronqdon J. : "I agree that the question is, whether there 
 was such evidence that a jury could airly act upon, in finding for the 
 plaintiff ; and I think there was. In ordinary cases one previous act of 
 ferocity is enough to put the owner on his guard; and if he afterwards 
 permits his dogs, with knowledge of their vicious disposition, to run 
 about, with tickets of leave as it were, he must be responsible for any 
 further damage which they may do." 
 
 Smith V. Petah (2 Str. 12G4) was also remarked upon iu Charlivood v.
 
 FEROCIOUS DOG. 159 
 
 Greifj, where the declaration stated that the defendant wrongfully and 
 injuriously kept a certain dog of a ferocious and mischievous natiu-e, and 
 prone, used, and accustomed to attack, bite, and injure mankind, he 
 well knowing that the dog was such. To this the defendant pleaded not 
 (juiUy, and that the plaintiflF annoyed and irritated the dog, and thereby 
 caused him to bite, which latter plea was traversed by the replication. 
 The plaintiff, who was between five and six years old, and the child of 
 a hairdi'csscr, had put his arms round the neck of the defendant's 
 Danish dog, which had accompanied the servants to the shop on an 
 errand. It was shown that the dog had bitten persons twice before, but 
 only once to the defendant's knowledge. The latter insisted, in an inter- 
 view with the plaintiff's father, that it was the child's fault, and said, 
 " I want to impress upon you that dogs are uncertain things, and that 
 children should be kept from them." To this the plaintiff replied that, 
 " if they were such uncertain things, they ought to be muzzled ; " and 
 Cresswell J. said, " I am inclined to agree with him in that answer." 
 The plaintiff's witnesses had seen the dog run about Clapham Common 
 for years, but had never seen him fly at any one. His lordship observed, 
 in summing up, " The question is, was it a savage dog and accustomed 
 to bite mankind ? If you find a dog from time to time biting people 
 under circumstances which could not excite a dog of good temper, you 
 will say whether such a dog is a savage dog or not. There is a case 
 {Smith V. Pelah) which decides that ' if a dog has once bit a man, and 
 the owner having notice thereof lets him go about or lie at his door, an 
 action will lie against him by a person who is bitten, though it ha]3pened 
 by such person treading on the dog's toes; for it was owing to the 
 defendant not hanging the dog on the first notice, and the safety of tlie 
 king's subjects ought not to be endangered,' Our criminal code has 
 been much modified since that time, and that would not now be con- 
 sidered as a proper mode of proceeding. In the present case th master 
 certainly knew of one instance in which the dog had bitten a person 
 before, and you will say whether, after that, he ought not to have taken 
 more care with respect to it. It is not necessary that the dog should run 
 about and show a disposition to snap at and bite everybody ; a man of 
 a bad temper is not always in a bad temper. You will say first whether 
 the dog was a savage dog, and if so, whether the defendant knew it." 
 There was a verdict for the plaintiff for £25 (3 Car. & K. 4G). 
 
 The decision of the Court of Exchequer in Hudson v. Roberts turned 
 upon rather a fine point as to lohat constituted evidence for the jury of a 
 scienter. The plaintiff, who was going on his lawful affairs, and wore a 
 red handkerchief, was attacked and severely injured by a bull which was 
 passing with cows of the defendant's along the highway. After the
 
 IGO EVIDENCE OF SCIENTER. 
 
 accident occurred, the defendant said to one of the witnesses that he 
 knew a bull would run at anything red, and to another he knew Uw bull 
 would. The bull had often run at people in red garments, but it was 
 not shown that the defendant knew of these occurrences. FuUock C.B. 
 considered that if there was any evidence of a scienter the case could not 
 be withdrawn irom the jury, who found a verdict of £20 for the plaintiff. 
 The Court discharged a rule to enter a nonsuit, and thought the verdict 
 a temperate one. Parke B., in delivering judgment, said, "As the cir- 
 cumstance of persons carrying red handkerchiefs is not uncommon, and 
 it is reasonable to expect that in every public street persons so dressed 
 may not unfrequently be met with, we think it was the duty of tlie de- 
 fendant not to suffer such an animal to be driven in the public streets, 
 possessing, as he did, the knowledge that, if it met a person -^ith a red 
 gaiTOent, it was likely to run at and injure him. If there be any evidence 
 of a scienter it could not be withdrawn from the jury" (20 L. J. Ex. G97). 
 
 The point in Judge v. Cox was whether a caution from the defemlant to 
 the person bitten was sufficient proof that the dog had bitten some one 
 before to the defendant's knowledge. The dog which, as the declaration 
 alleged, the defendant, Mrs. Cox, " knew to be accustomed to bite man- 
 kind," was on the premises when she took a ready-furnished house at 
 Harrow, and one of the witnesses stated that slie had warned him to 
 take care lest he should be bitten. It wrenched the staple from the 
 tree to which it was tied, and bit the plaintiff and a child subsequently ; 
 but there was no evidence of anterior biting. Allot J. intimated that 
 but for the warning given by the defendant he would have nonsuited 
 the plaintiff, and added, " That in order to warrant a verdict for the 
 plaintiir on such a declaration, they must be satisfied both that the dog 
 had before bitten some person, and that the defendant knew it." He 
 thought sufficient caution had not been used to secure the dog, and the 
 jury ibund a verdict for the plaintiff with £55 damages. Referring to 
 this case in Hartley v. Harriman, his lordship said, " I left it to the 
 jury in that case, to say whether the expression proved to have been 
 used by Mrs. Cox, cautioning a person not to go near the dog lest he 
 should be bitten, was not evidence from which they might infer that to 
 her knowledge the dog had previously bitten some person" (1 Stark. 285). 
 
 Lord Kenijon C.J. admitted, in Jones v. Perry (2 Esp. 482), evidence 
 of a report that the doy had leen litten ly a mad doy previously, to sup- 
 port the second count of the declaration, whicli charged the defendant 
 with knowingly keeping a fierce and savage dog without being properly 
 secured. The dog had been tied up in a cellar by a rope of such length 
 that he reached the kerb-stone on the opposite side of the street, and 
 tore the plaintiff's child, who was carried to the salt water, but died of
 
 SHOOTING DOG WHEN JUSTIFIABLE. 161 
 
 liydropliobia on its return. His lordship thought it was not a case for 
 vindictive damajrcs. " Report having said the dog had been bitten by 
 a mad dog, it became the duty of the defendant to be very circumspect. 
 Whether the dog was mad or not was a matter of suspicion ; but it is 
 not sufficient to say, ' I did use a certain precaution.' He ought to use 
 such as would, put it out of the animal's poM'er to do hurt. Here, too, 
 the defendant showed a knowledge that the animal was fierce, unruly 
 and not safe to be permitted to go abroad, by the precaution he used to 
 tie him up. That precaution has not been sufficient ; for a want of it 
 the injury complained of has happened. I am clearly of opinion that 
 the plaintiff should recover." Damages £30. His lordship also ruled 
 in McKone v. Wood, an action against a party for keeping a dog also 
 accustomed to bite mankind, that it is not essential that the dog should 
 be his, if he liarhours or allows it to resort to his 2)remiscs. Here the dog 
 had bitten tw^o persons before the plaintiff ; and when a complaint had 
 been made, the defendant said that the dog (which was seen about the 
 premises both before and after the time when the plaintiff" was bitten) 
 belonged to a person who had been his servant and left him. 
 
 In Ckirk v. Webster and Salt, Park J. ruled that the first special plea, 
 viz., that the dog was accustomed to attack and bite mankind, and that 
 the defendant and his gamekeeper shot him when he left his owner's 
 waggon, and ran into a field where they were shooting, in order to save 
 themselves, was not supported by evidence, which only went to show 
 that the dog had once been muzzled, had growled at people as they 
 passed along the road, and pushed down a man who was carrying a 
 pack. The plaintiff" had a verdict for £5, though his lordship animad- 
 verted severely on the fact of his calling seven witnesses to meet the 
 first special plea, by giving evidence as to the dog's quiet habits. The 
 second special plea was to the effect that the defendant and his game- 
 keeper shot it because it attacked their dogs, and to save the lives of 
 the latter, but nothing turned upon that. 
 
 Lord Denman C.J. ruled that to justify shooting another person's 
 dog it is not sufficient to show that it was of a ferocious disposition and 
 was at large, but it must he actuathj attaclcimj the party at the time ; and 
 that therefore Avhere the plaintiff's dog ran at and bit the defendant's 
 gaiter as he was passing the house, and then ran away, and the defen- 
 dant shot him at the distance of five yards, he was not justified in doing 
 so (J/oms V. Nugent). It was also ruled by Lord Ellenloroiajli C.J. 
 that if defendant justify shooting a dog because it was worrying his 
 fowl, he must prove that ivhen he fired the dog ivas in the very ad, and 
 could not be prevented from effecting his purpose by any other means 
 {Janson v. Broini). And so where it was proved that the owner of
 
 162 FEROCIOUS BULL. 
 
 sheep shot a dog which had been worrying them, after it had run two 
 JieMsfrom the spot, Alderson B. held, in an action by the owner of the 
 dog, that the defendant was not justified in shooting it, as it was not 
 shot in protection of his property, though the habits of the dog might 
 be considered in mitigation of damages {Wells v. Head). 
 
 In Broclc \. Coj^eland, where the decLaration also stated that the de- 
 fendant knowingly kept a dog used to bite, Lord Kenjjon C.J. decided 
 that under the circumstances the action would not lie, and nonsuited 
 the plaintiff. The defendant's foreman (who was the plaintiff) had 
 gone into the wood-yard after it was shut at night ; and the dog, which 
 was very quiet and gentle, and tied up all day, was let out to guard the 
 premises, and had bitten him. His lordship considered that the dog 
 had been properly let loose, and the injury had arisen from the plain- 
 tiff's own fault in incautiously going into the defendant's yard after it 
 had been shut up. In a previous action (cited 1 Esp. 203) for keeping 
 a mischievous bull that had hurt the plaintiff as he was crossing a field 
 of the defendant's in which it was kept, the defendant's counsel con- 
 tended that the plaintiff having gone there of his own head, and having 
 received the injury from his own fault, an action could not lie. As, 
 however, it also appeared in evidence that there was a contest concerning 
 a right of way over this field, wherein the bull was kept, and that the. 
 defendant had permitted several persons to go over it as an open way, 
 his lordship ruled, and the Court of King's Bench concurred in opinion 
 Avith him, that the plaintiff having gone into the field, supposing that 
 lie had a right to go there, and the defendant liav in g permitted iier sons to 
 go there as over a legal icag, the defendant should not then be allowed 
 to set up in his defence the right of keeping such an animal there, as in 
 his own close, but that the action was maintainable. 
 
 Blachnan v. Simmons (3 C- & P. 138) was a case of much more modern 
 date, and of tlie character of the one alluded to by his lordship. The 
 bull Avas kept on some marsh land near Tottenham, where the inha- 
 bitants at a certain season of the year had a right of common for cattle. 
 The plaintiff, who was a cowkeeper, and had cattle on the marsh, was 
 driving one of his cows to the bull at a neighbouring farm. There was 
 only a shallow ditch between the field and the marsh, which the 
 defendant's bull crossed and went to the cow. He was struck on the 
 head l^y the plaintiff, whose stick broke short, and the bull then threw 
 him down, and broke two of his ribs. The defendant had had notice 
 of his having run at a man previously, and at the time of the accident 
 a strap and chain were fastened round the bull's neck, but so loosely as 
 not to prevent liis running. It was proved that \\hen the defendant 
 bought the bull he was told that it was very mischievous, to which he
 
 OBLIGATION AS TO VICIOUS ANIMALS. 163 
 
 replied it would suit liim all the better, as he was troubled by people 
 fishing in his meadow. In reply to an observation that he would not 
 surely turn the bull into the meadow without giving notice to the 
 l^ublic, he replied, '^ Let kim give notice himself." 
 
 Best C.J. remarked in strong terms on the " gross and wicked con- 
 duct," of the defendant, and said that if the plaintiff had died it would 
 have been " an aggravated species of manslaughter." It was contended 
 for the defendant, that the plaintiff had acted imprudently in attacking 
 the bull, whereas, he ought to have permitted him to go near the cow, 
 and that hence the plaintiff was not injured by the vice of the bull as 
 charged in the declaration. Of such vice it was also urged, that the 
 sight of the strap and chain was sufficient notice to the public. His 
 lordship advised the jury to give considerable damages, and they 
 assessed them at £105. Hence the owner of a vicious animat, after 
 notice that he has done an injury, is lyouml to secure Myn at all events, and 
 is liable in damages to a party subsequently injured if the mode he has 
 adopted to secure it proves insufficient. As to prospective damages see 
 Hodsoll V. Stallehrass. There Littledale J. said : " You may show an 
 injury of a permanent nature beyond the time at which the action is 
 brought ; as in the case of a policy of insurance and other like instances. 
 Then, can prospective damages be given ? It appears to me that they 
 may; for this arises from one injury: if they arose from various injuries 
 that would be different. The case of Malachg y. Soper (3 N. C. 371) 
 has been referred to, but that is not an authority to bind the present 
 case. It is from the consequence of one unlawful act. You cannot 
 have a fresh action unless there is a fresh unlawful act done, and fresh 
 damages also sustained as resulting from that act." 
 
 The right of any one to recover, who is injured hy an animal on 
 ground ivhcre he is entitled to he going ahout his lawful husiness, was 
 upheld by Tindal C.J. in Sarch v. BlacMurn. The plaintiff was a 
 Avatchman ; and the dog wliich bit him was tied to his kennel by a four- 
 yard chain near a piggery and chicken-house and a cowshed, and just 
 under a board which said in three-inch letters — " Beware of the 
 Dog." There were three entrances to the house and premises, one of 
 them, more public than the rest, having a spring gate ; another, called 
 the middle entrance, across a field ; and a third, where the dog was, an 
 entrance across the cow-yard, and through a private gate and another 
 yard to the house. One of the plain tiff"s witnesses said that he had 
 been bitten three years before, as he was passing through a private way 
 to the premises, and that the defendant had rubbed his leg with brandy. 
 He added that the family only used that way, but he had been there 
 before with defendant's son. 
 
 M 2
 
 IC-i KEEPING WATCH-DOGS. 
 
 His lordship observed that if a man Iceops a dog in a garden walled all 
 rojoid, any one going in does so at his })eril. " Undoubtedly a man has 
 a rig-ht to keep a fierce dog for the protection of his property ; but he 
 has uo right to put the dog in such a situation, in the way of access to 
 his house, that a person innocently coming for a lawful purpose may be 
 injured by it, I think he has no right to place a dog so near to the 
 door of his house, that any person coming to ask for money or on other 
 business might be bitten. And so unlh respect to a footpath, tliough it he a 
 jyrivate one, a man has no right to 2^ul « dog with such a length of chain, 
 that he could lite a jJcrson going along it. As to the notice, it does not 
 appear to me that a painted notice is sufficient, unless the party is in 
 such a situation in life as to be able to avail himself of it. It does not 
 appear to me that this notice is sufficient so as to bar the action, if the 
 plaint ilf had any right at all to be on the spot, for it seems that he was 
 not able to read. Then was there anything in the appearance of the 
 dog which would lead the plaintiff to suppose that the dog would bite 
 liim ? It seems that the injury happened in the middle of the day, in 
 July, and that the plaintiff was a person employed as a watcher in the 
 neighbourhood ; and as no suspicion has been thrown upon him by the 
 other side, you may presume he was going to the house for a lawful 
 purpose. The only way in which I can leave the question (which I 
 admit is one of considerable nicety) for your consideration, is to leave 
 it to you to say on which side was the negligence on this occasion. If 
 there was negligence on the part of the plaintiff, he cannot recover for 
 an injury which he has in part brought upon himself; but if there was 
 no negligence on his part, and there was negligence on the part of the 
 defendant, the plaintiff will be entitled to your verdict." The plaintiff 
 obtained a verdict for £20, and a rule nisi to set aside the verdict was 
 granted, but the case was settled before it came on for argument 
 (M. & M. 505). 
 
 Again, Crowdcr J. ruled, on Besozzi v. Harris, where the defendant 
 owned a bear, which was fastened by a chain six feet long, on a ])art 
 of his premises accessible to excursionists (one of whom it seized) fre- 
 quenting his house on the Steep Holms in the Bristol Channel, that a 
 person keeping an animal of a fierce nature is bound so to keep it that 
 it shall not commit injury; and when therefore, such an animal does 
 damage, the owner is liable, though it be shown that it never had 
 evinced any fierceness, but evidence of its tameness is received under 
 particular circumstances, in reduction of damages. The evidence was 
 contradictory, as to the lady's knowledge of tlie bear being there, and 
 there was no notice or caution, written or verbal, to those visiting the 
 premises.
 
 LACK OF CAUTION IN TKIiSON BITTEN. 165 
 
 Curtis V. Mills was a miicli stronger case than either of the above. 
 The defeudant, who kept a fierce dog so tied up that he cotfld still 
 reach anyone going from the yard gates to the stable, was being assisted 
 by the plaintiff to carry some planks he had purchased from his master, 
 a wood-merchant, down the yard. The dog took no notice of his 
 master as he passed, but severely bit the plaintiff" who followed him. 
 It was in evidence that on other occasions the plaintiff!' had been 
 warned not to go near the dog, though never on the day of the acci- 
 dent ; but there was no evidence that the dog had ever bitten a person 
 before. Tindal C.J. held that under these circumstances the plaintiff 
 was entitled to recover, if the jury thought that he did not, as it were, 
 run himself into the mischief hy his own carelessness and want of caution; 
 and the plaintiff had a verdict for £20. 
 
 Read v. King was a case of dogs, described " as ferocious and mis- 
 chievous " in the declaration, attackinrj a mare of the plaintiff's as he 
 was driving her in a phaeton. On passing the defendant's house four 
 little wire-haired Skye terriers rushed out and attacked the mare by 
 barking and snapping at her heels. The animal, according to the 
 plaintiff's account, bore it very well for some time, but at last she 
 took fright, and after plunging and kicking, whilst the plaintiff tried 
 to control her and to drive away her assailants, she fell down and was 
 severely injured. The veterinary surgeon's bill was £7, the repairs to 
 the phaeton cost £13, and eventually the animal was sold at Aldridge's 
 for £33, and plaintiff" now sought compensation for loss and damages. 
 The defence was that the dogs were perfectly mild and harmless ; one 
 being totally blind, while in another the senses of seeing and hearing 
 were considerably impaired. A host of witnesses, amongst whom was 
 a police constable who had known the dogs for several years, were 
 examined as to character ; and some of them who had witnessed the 
 occurrence, attributed the damage sustained by the plaintiff to the fact 
 that he had endeavoured to whip the first dog, which barked as the 
 vehicle passed by. The defendant also swore that he did not know 
 they were in the habit of attacking horses. 
 
 Bramwell B., in summing up, said the jury should find for the plain- 
 tiff if they considered the dogs were mischievous, and that the defendant 
 knew it, and that the mischief resulted therefrom. If they were of 
 opinion that they had a mischievous tendency, and the defendant did 
 not know it, or that if they had and he did know it and the mischief 
 was brought about by some act of the plaintiff", then they must find for 
 the defendant. The jury found a verdict for the plaintiflF, damages 
 £53 10s. ; but a rule to set aside the verdict on the ground of misdirec- 
 tion, improper reception of evidence, and that the verdict \Yas against
 
 1G6 SCIENTER PUT IN ISSUE BY " NOT GUILTY." 
 
 evidence was made absolute by the Court of Exchequer. PoUoch C.B. 
 aud Jfffrfi/i B. were of opinion that there was no evidence to go to the 
 juiT to show that the dogs were mischievous to the knowledge of the 
 defendant, and that the rule should tlierefore be made absolute. Bram- 
 tvell B. thought that the evidence justified the jury in exercising their 
 discretion in arriving at a conclusion of what the four dogs had done, 
 although one might be harmless, and that the verdict was right ; and 
 Channel B. considered there ^^•as some evidence to be left to the jury, 
 but not sufficient to show tliat the dogs were mischievous to the know- 
 ledge of the defendant. 
 
 Not Guiliy jmts in issue the scienter, and defendant's conditional offer 
 to pay is slight evidence of it {Thomas y. Morgan, 2 C. M. & R, 496). 
 The declaration here alleged that the defendant "knew that the dogs 
 Avere of a ferocious and mischievous disposition, and accustomed to attack, 
 chase, bite, worry, and kill cattle." It was proved that they had killed 
 some of the plaintiff's sheep, as well as the cattle of other people, and 
 that when the defendant was told that his dogs had killed three of the 
 plaintiff's sheep, he promised to settle if it could be proved they had 
 done it. The witness, Protheroe, whose cattle had also been worried 
 (and to whom he offered satisfaction), deposed that the defendant told 
 him (about three days after the sheep were worried) that he could not 
 help it, and had ordered his dogs to be kept up. Williams J. thought 
 there was not sufficient evidence of the scienter to make the defendant 
 lialde, and nonsuited the plaintiff, with leave to move to enter a verdict 
 for £11 105., the value of the sheep. The Court discharged the rule, 
 and held that the plea of Not Guilty put in issue the scienter, it being 
 of the substance of the issue, and also that the defendant's conditional 
 offer to iiaij for the damafie was some slight evidence for the jury of the 
 scienter. Protheroe's evidence here referred to a time subsequent to 
 the act laid in the declaration, and it was no evidence of it. The offer 
 to pay might have been made from motives of charity in the first 
 instance, and without any admissive liability at all ; and if it had been 
 submitted to the jury the Court felt that it should have been done 
 with such strong observations against its weighing much for the plain- 
 tiff, that they declined to disturb the nonsnit. Again in Hogan v. 
 Sharjje, where the declaration stated that the defendant kept a dog 
 "of a ferocious and mischievous disposition, well knowing him to be 
 so," Lord Alinger C.B. lield that the plaintiff must be nonsuited if 
 the defendant never knew the dog to bite any one before, and that he 
 might avail himself of such want of knowledge under the plea of 
 Not Guilty. And in Ckird v. Case, where a dog belonging to the 
 dfilendant had chased and killed certain sheep and lambs of the plain-
 
 DEPASTURING VICIOUS HORSE. 167 
 
 tiff's, but there was no evidence that the defendant knew that the doi,' 
 was accustomed to bite sheep, V. WiUknm J. nonsuited the phiintifF, 
 with leave to move to enter a verdict for £9 14s., if the Court should 
 be of opinion that tlie scienter was not put in issue by Not Guilty 
 (.5 C. B. G22). 
 
 The question here was, as to the effect of the plea of" Not Guilty " in 
 an action for damage done to the plaintiff's sheep by a ferocious dog, as 
 regulated and restricted by the new rules? The Court of Common 
 Pleas discharged the rule on the ground that the scienter was clearly 
 put in issue by that plea, and that the plaintiff was bound to prove it ; 
 and 2^c>' Maute J.: " If several unlawful acts are alleged in the same 
 declaration, Not Guilty will put them all in issue. The cases of May v. 
 Burdett and Jaclcsoti v. Smithson, and the general course of precedents 
 and authorities referred to in May v. Burdett prove that the wrongful 
 act is the keeping of the ferocious dog, knowing its savage disposition, 
 and that an action of this sort may be maintained without alleging any 
 negligence. The allegation of duty in the defendant to use due and 
 reasonable care and precaution in keeping the animal, is quite immaterial 
 {Brown v. Mallet). The utmost diligence will not excuse him if the 
 dog was of a ferocious disposition, and the defendant knew it. The 
 ground of action is the keeping of a ferocious dog knowing his dis- 
 position. Not Guilty cannot ])ut the litiny in issue : that is the act of the 
 doy." The decision in May v. Burdett, as well us that in Jackson v. 
 Smithson, which was argued in the Court of Exchequer a few days 
 after, and entirely governed by it, are binding authorities to show that 
 neyliyence is to he presumed without express averment. The former of 
 these two was the case of a person keeping a monkey Avhich he knew to 
 be accustomed to bite, and which bit the female plaintiff. In Jadcson 
 V. Smithson (15 M. & W. 563), where the defendant " wrongfully and 
 injuriously kept a ram, well knowing he was prone and accustomed to 
 attack, butt, and injure mankind," the plaintiff had a verdict for £10, 
 and the Court refused to arrest the judgment for lack of an express 
 averment that the defendant negligently kept the ram. In reference 
 to May V. Burdett, Alderson B. said: "In truth there is no distinction 
 between the case of an animal which breaks through the tameness of its 
 nature and is fierce, and known by the owner to be so, and one which 
 is ferce naturae (9 Q. B. 101). 
 
 Depasturinij a vicious horse. — In the case o? Reg. v. Dant,{\\Q prisoner 
 had turned out upon a common a horse which he knew to be vicious ; 
 the horse kicked and killed a little child which had strayed off the path 
 on to the common, and the prisoner was tried and convicted of man- 
 slaughter : held that the conviction was right. 34 L. J. M. C. 119.
 
 ]6S LANDS GAINED FIIOM THE SEA. 
 
 CHAPTER VI. 
 
 WATER. 
 
 It was decided {Rex, 2)lainiiff in error v. Lord Yarlorovgh) by the 
 House of Lords, in concurrence with the unanimous opinion of the 
 judges, that lands farmed shtvly, (jradualhj, and im^jcrceptihhj, Inj 
 aUuvion on the sea shore, belong by general immemorial custom to the 
 owner of the adjoining lands, and not to the Crown. The owner of the 
 shore between high and low water-mark is entitled to such parts of the 
 adjoining soil as by the gradual and imperceptible encroachments of 
 the sea have been brought within those limits ; while the owner of the 
 land next adjoining high-water-mark is entitled to all the soil that is 
 added to his land by the imperceptible retiring of the sea ; and the 
 same rule holds good for rivers. In re Hull and SeUnj Raihcay, Lord 
 Ahinrjer C.B. referred in his judgment to the case of a ]\Ir. Adam, 
 where a river, containing a salmon fishery belonging to him, was 
 suddenly transferred to the land of his neighbour, who enjoyed it with 
 the valuable right attached to it. Afterwards, by another violent effort 
 of nature the river returned to its former channel ; yet in neither case 
 did the owner of the bed of the river lose his right to the soil. 
 
 Lands gained from ilie sea. — In Tlie Attorney General y. Chamlcrs, 
 d-c, the Crown claimed to have the medium line (the boundary of the 
 rights of the Crown on the sea-shore) laid down as it would have existed 
 but for artificial- causes ; and it \\as held on appeal by Lord Chancellor 
 Chelmsford thai; lands imperceptibly gained from the sea by a party's 
 lawful use of his own laud, belong to the owner of the land adjoining, 
 unless it can be shown that the operations were intended to produce 
 this gradual acquisition of the sea-shore. And where a party claimed 
 the sea-shore in front of his property, on the ground that he had turned 
 his cattle upon the marsh, and that they had crossed the boundary 
 separating the marsh from the sea-shore, and that he had done this for 
 sixty years without interruption, it was held that where property is of a 
 nature that cannot easily be protected against intrusion, and, if it could, 
 it would not be worth the trouble of preventing it, mere user is not 
 feufficieut to establish a right («&,).
 
 ACCEETION OF LAx\D. 1C9 
 
 Incidents of the sea-shore. — The sea-shore below high water-mark, and 
 without inhabitants, is an extra-parochial place, having a population 
 less than two hundred persons within the meaning of sec. 6 of 18 & 19 
 Vict. c. 121 {Rcij. on 'proson. of Earl Derlnj v. Gee and Others). Part of 
 sea-shore between high and low water-mark is within and part of the 
 adjoining county ; so that the justices of the county have jurisdiction 
 to take cognizance of ofPences committed therein, whether land be 
 covered with water or not at the time the offence is committed. And 
 per Gockburn C.J. : "It is clear upon the authorities, as also upon Reg. v. 
 Musson (27 L. J., N. S., Q. B., 222), where it was distinctly held that 
 such part of the sea was within the county, that the justices had juris- 
 diction to entertain this matter, and that that jurisdiction ought to be 
 exercised " (Embteton appt. v. Brown resp.). 
 
 Projterf// in accretions from a non-navi gable river. — Accretions from 
 the gradual change of the course of a non-navigable river, where there 
 are no fixed boundaries, will become the property of the owner of the 
 adjoining land {Ford v. Lacey). 
 
 But in cases of gradual accretion, the land gained belongs to the 
 proprietor of the adjacent soil. Parlcc B. held it as settled that en- 
 croachments made by a tenant are for the benefit of the landlord, unless 
 it appear clearly, by some act done at the time of the making of the 
 encroachments, that the tenant intended the encroachments for his own 
 benefit, and not to hold them as he held the farm to which the encroach- 
 ments were adjacent {Doe dcm. Lewis \. Bees). This action was one of 
 ejectment by the lessor of the plaintiff, to recover from the defendant a 
 piece of laud encroached from the sea coast by the defendant, while 
 tenant to the lessor of the plaintiff of his farm, which did not extend 
 quite down to the sea shore, till the defendant made the encroachment 
 in question. There is no obligation on a parish to repair a road when it 
 is washed awag bg the sea {Reg. v. Inhabitants of Hornsea) ; and ^^er 
 Maule J., " There is no such thing as an absolute right of the public 
 against the act of God and the processes of nature. The repairs to 
 roads which the common law contemplated, were repairs which could 
 be done by the farmers and their labourers. Here to repair the road, 
 you must begin by restoring the cliff." 
 
 A grant by the Crown of " all coals under the commons, waste 
 grounds, or marshes " of a certain manor, was held by Stuart V.C. and 
 Watson B. to pass coal Iging under the fore-shore of the estuary of the 
 river Dee, between high and low water-marks, and forming part of such 
 manor {The Attorney-General v. Hanmer). If the officers of a parish 
 claim a right to rate a person occupying that part of the sea-shore which 
 lies between high and low water-marks, the onus lies upon them to show
 
 170 EIGHT OF FISHING. 
 
 by evidence that such part is Avitliin the parish, and in the absence of 
 evidence it must be presumed that tlic hmd is extra-parochial, and 
 therefore not liable to be rated {Rffj. v. JIusson). 
 
 Where, in trespass qu. cl. freg. {Jones v. Williams) the plaintiff 
 claimed the whole bed of a river flowing between his land and the 
 defendant's who contended that each was entitled ad medium fllum 
 aquiT, it was held, on the principle laid down in Doe v. Kemp, that 
 evidence of acts of ownershij) exercised hy the plaintiff on the bed and 
 hanJcs of f/ie river on the defendant's side, lower down the stream, and 
 where it flowed between the plaintiffs land and a farm adjoining the 
 defendant's land ; and also of repairs done by the plaintiff to a fence, 
 which divided that farm from the river, and was in continuation of a 
 fence dividing the defendant's land from the river — was admissible for 
 the plaintifi'. Such acts of ownership in another part of one continuous 
 hedge, and in the whole bed of the river, adjoiuing the i)laintiff's land, 
 are admissible in evidence, on the ground that they are such acts as 
 may reasonably lead to the inference that the entire hedge and bed of 
 the river, and consequently the part in dispute, belonged to the plaintiff'. 
 Andyw Parlce B., "Acts of o^vnership are not admitted in evidence on 
 the ground of acquiescence ; that goes only to the value of the evidence; 
 but as showing possession, and so proving title" (2 N. C. 102, Ex. Ch.). 
 
 On a grant of a certain water, the ri/jht ofjishinfj passes to grantee, but 
 not the soil (Co. Litt. 4 h.). An injunction goes to restrain defendants 
 from injuring fish ponds by obstructing them, and not keeping the sills 
 in repair {Earl Bathurst v. Burden). The right of the fioiv of water to 
 a 'pond was greatly considered in Hale v. Oldroyd, in which the plaintiff 
 alleged a reversionary interest in three closes of land, to wit, three jmnds 
 filled with water, one on each close, and a right to the overflow of a 
 certain stream of water from an ancient public well in the defendant's 
 close into the plaintiffs three closes, to water his cattle, which stream 
 the defendant had diverted. The defendant, in addition to his j)lea of 
 Not (juiltij, traversed the right of the tenant to such overflow. The 
 plaintiff had enjoyed an immemorial right to the overflow of this water 
 into an ancient pond in one of these closes ; but more than tliirty years 
 before, he had made a new pond in each, and the old one had gradually 
 got filled up with rubbish and grass. This right in respect to the three 
 ponds was defeated by proof of an outstanding life estate, under 2 & 3 
 Will. IV. c. 71, s. 7. It was held that he Avas entitled under this decla- 
 ration to recover in respect of his right to the overflow of water to the 
 oWpond (14 M. & W. 789). 
 
 Parke B. said, " The use of the old pond was discontinued, only 
 because the plaintiff obtained the same or a greater advantage from
 
 RIPARIAN RIGHTS. 171 
 
 the use of the three new ones. He did not thereby abandon his right : 
 he only exercised it in a different spot, and a substitution of that nature 
 is not an abandonment. He has a right, therefore, under this declara- 
 tion, to recover in respect to the old pond. The right alleged is a right 
 to have the uninterrupted flow of certain surplus water into a pond ; 
 and that right is equally proved, w^hethcr it be by prescription, or lost 
 grant, or under Lord Tenterden's act. The declaration means no more 
 than this, that the plaintiff" has a right to the overflow of water either 
 in one pond or three ponds." And ^m' Rolfe B. : " The declaration 
 means only that the plaintiff' has a right to have certain land covered 
 with water, and no abandonment of the right has been proved. If the 
 plaintiff had even filled up the pond, that would not in itself amount to 
 an abandonment, although, no doubt, it would be evidence of it." If 
 one has ?a\Q'\Q,\\i\y cattk i)oiHh which are replenished by a rivulet, he may 
 cleanse them, hut he cannot change or cnJarge them so as to divert the 
 water from its ancient course to the damage of another {Brown v. Best). 
 And so a person whose Jand is occasionally liable to injury hy the over- 
 floiv of river ?mi'«-,hasno right in his mode of protecting himself against 
 that injury to produce injury or damage to his neighbours in respect of 
 the course of the same water {Rex v. Trafford). And the case of {Frcmhmi 
 V. Earl Falmouth shows that Not guilty only puts in issue the actual 
 diversion of the water. 
 
 A right to mtter is not destroyed because the plaintiff had three years 
 before slightly altered the course of the stream at a point between its exit 
 from the defendant's land, where the obstruction took place, and its 
 entrance upon his own land ; neither is the ancient right lost by desue- 
 tude, because more than twenty years before, the stream had ceased 
 to flow to the plaiutiff^'s lane, and had resumed its ancient course only 
 nineteen years before the commencement of the action {Hall v. Stvift). 
 Tindal C.J. observed that it would be very dangerous to hold that a 
 party should lose his right in consequence of such an interruption ; and 
 that if such were the rule, the accident of a dry season, or causes over 
 which the party could have no control, might deprive him of a right 
 established by the longer course of enjoyment. 
 
 The right of landoivners on the banlcs of a stream to appropriate u-cder, 
 was first specially considered in Bealey v. Shaw. That case established 
 the principle that the owner of land through which a river runs cannot, 
 by enlarging a channel of certain dimensions through which the vrater 
 had been used to flow before any appropriation of it by another, divert 
 more of it, to the prejudice of any other landowner lower down the 
 river, who had at any time before such enlargement appropriated to 
 himself the surplus water which did not escape by the former channel.
 
 172 WATER FLOWING IN A STREAM, PUBLICT JURIS. 
 
 And per Lo Blanc J. : " The true rale is that after the erection of 
 ■works, and the appropriation by the owner of the land of a certain quan- 
 tity of the water flowing over it, if a pro}n-ietor of other land afterwards 
 take what remains of the water before unappropriated, the first-mentioned 
 owner, however he might before such second appropriation have taken 
 to himself so much more, cannot do so afterwards" (6 East. 215). 
 
 This rule was cited by Holroijd J., in Saunders v. Newman, which 
 decided : That the occupier of a mill may maintain an action for forcing 
 bacJc water and injuring his mill, although he has not enjoyed it precisely 
 in the same state for twenty years. And therefore it was holden to be 
 no defence to such an action, that the occupier had within a few years 
 erected in his mill a wheel of different dimensions, but requiring lesg 
 water than the old one, although the declaration stated the plaintiff to 
 be possessed of a mill, without alleging it to be an ancient mill. It 
 was laid down in Williams v. Morcland, that flowing water is publici 
 juris, and that an individual can only acquire a right to it by appro- 
 priating so much of it as he requires for a beneficial purpose, and that 
 therefore the plaintiff could not recover damages for the mere erection 
 of a dam higher up the stream, which prevented the water from run- 
 ning smoothly in its usual course, and caused it to run in a different 
 channel, and with greater violence, though it did not, according to the 
 finding of the jury, cause any damage to the banks and premises of the 
 plaintiff. Lifllcdale J. said : " Water is of that peculiar nature that it 
 is not sufficient to allege in a declaration that the defendant prevented 
 the water from flowing to the plaintiffs premises. The plaintiff must 
 state an actual damage accruing from the want of the water. The mere 
 right to use the water does not give a party such a property in the new 
 water constantly coming, as to make the diversion or obstruction of 
 the water, per se, give him any right of action. All the king's subjects 
 have a right to tlic use of flowing water, provided that in using it they 
 do no injury to the rights already vested in another by the appropria- 
 tion of the water." 
 
 Tindal C.J. said in his judgment in Liggins v. Inge, " Water flowing 
 in a stream, it is well settled, by the law of England is jwhlici juris. 
 By the Roman Law, running water, light, and air, were considered as 
 some of those things which had the name of res communes, and which 
 were defined ' things the property of which belong to no person, but 
 the use to all.' And by the law of England, the person who first 
 appropriates any part of the water flowing through his land to his own 
 use, has the right to the use of so nmch as he thus approju-iates, against 
 any other {Bealeg v. Siuiw). And it seems consistent with the same 
 principle, that the water after it has been so made subservient to
 
 APPROPRIATION OP RUNNING WATER. 173 
 
 private uses by ai^propriation, should again become puhlici juris by the 
 mere act of relinquishment. There is nothing unreasonable in holding 
 that a right which is gained by occupancy should be lost by abandon- 
 ment. Suppose a person who formerly had a mill upon a stream 
 should pull it down and remove the works, w'ith the intention never to 
 return. Could it be held that the owner of other lands adjoining the 
 stream might not erect a mill and employ the water so relinquished ? or 
 that he could be compellable to pull down his mill if the former mill- 
 owner should afterwards change his determination and wish to re-build 
 his own?" (7 Bing. 082). 
 
 In Mason v. Hill (5 B. &, Ad.), the proposition for which the plaintiff 
 contended was, that the possessor of land through ivMch a natural stream 
 runs, has a rigid to the advantage of that stream ftoicing in its natural 
 course, and to use it when he pleases, for any purposes of his own, not 
 inconsistent with a similar right in the proprietors of land above and 
 below — that neither can any proprietor above diminish the quantity or 
 injure the quality of the water which would otherwise descend, nor can 
 any proprietor below throw back the water without his licence or grant ; 
 — and that whether the loss by diversion of the general benefit of such 
 a stream be or be not such an injury in point of law as to sustain 
 an action without some special damage, yet, as soon as the proprietor of 
 the land has applied it to some purpose of utility, or is prevented from 
 so doing by the diversion, he has a right of action against the person 
 diverting. The defendants, on the contrary, maintained that the right 
 to flowing water i&puhlici juris, and that the first person who can get 
 possession of the stream, and apply it to a useful purpose, has a good 
 title to it against all the world, including the proprietor of the land 
 below, who has no right of action against him, unless such proprietor 
 has already applied the stream to some useful purpose also, with which 
 the diversion interferes ; and in default of his having done so, may 
 altogether deprive him of the benefit of the water. 
 
 The Court of Qaeen's Bench held that the defendants did not acquire 
 a right hy their appropriation, against the use which the idaintijf after- 
 wards sought to make of the under ; and hence the proprietor of lands 
 contiguous to a stream may, as soon as he is injured by the diversion of 
 the water from its natural course, maintain an action against the party 
 so diverting it ; and it is no answer to the action that the defendant first 
 appropriated the water to his own use, unless he has had twenty years' 
 undisturbed enjoyment of it in the altered course. Lord Tenterden C.J. 
 rested the decision of the Court mainly on the judgment of Sir John 
 Leach V.C, in Wright v. Howard: "The right to the use of water 
 rests on clear and settled principles. Prima facie, the proprietor of
 
 17-i WATER NOT IN A FLOWING STllEAM. 
 
 each bank of a stream is the proprietor of half the land covered by 
 the stream ; but there is no property in the ^vate^. Every proprietor 
 has an eqnal right to use the water which Hows in the stream, and con- 
 sequently no proprietor can have t/ie ritjlit to use the water to the prejudice, 
 of anil other proprietor. AVitliout the consent of the other proprietors, 
 who may be affected by his operations, no proprietor can either diminish 
 the quantity of water which would otherwise descend to the pro- 
 prietors below, or throw the water back upon the proprietors above. 
 Every proprietor, who claims a right either to throw the water back 
 above, or to diminish the quantity of water which is to descend below, 
 must, in order to maintain his claim, either prove an actual grant or 
 licence from the proprietors affected by his operations, or must prove 
 an uninterrupted enjoyment of twenty years, which term is now adopted 
 on a principle of general convenience, as affording conclusive evidence 
 of a grant. An action will lie at any time within twenty years, when 
 injury happens to arise in consequence of a new purpose of the party to 
 avail himself of his common right." 
 
 Lord Dcaman C.J. (who expressed himself as entirely concurring in 
 Lord Tenterden's judgment), after reviewing Bealey v. Shaiv, Saunders 
 V. Kewman, Wittiams v. MoreJand, and Liijejins y. Inge, thus remarked 
 on those cases in Mason v. HiJl: " Xone of these dicta, when properly 
 understood with reference to the cases in which they were cited, and 
 the original authorities in the Roman Law, from which the position 
 that water is jmltici juris is deduced, ought to be considered as autho- 
 rities that the first occupier, or first person who chooses to appropriate 
 a natural stream to a useful purpose, has a title against the owners of 
 land below, and may deprive him of the benefit of the natural flow of 
 water." 
 
 In Dickinson x. Grand Junction Canal Gompany (which, with Balston 
 V. Benstead, arc the only two cases in the books which supjjort a claim 
 to icater not in a ftowing stream) the Court of Exchequer decided in 
 favour of the plaintiffs, the owners of ancient mills, who were entitled 
 to the use of two streams for the working of their mills, against the 
 defendants, who had abstracted subterranean water, wliicli had ncA'cr 
 reached the streams, but would have done so in its natural course but 
 for the excavation of a well and pumping from it ; and whether such 
 water was part of an underground watercourse, or percolated through 
 the strata, the Court held that the abstraction Avas equally actionable. 
 Awd per Poltock C.B. : " We consider it as settled law, that the right to 
 liave a stream running in its natural course is not by a presumed grant 
 from long acquiescence on the part of the riparian proprietors above 
 and Ijelow, but is ex jure natures {Shurey v. Piyyot, Tyler v. Wilkinson),
 
 LAW AS TO A SPRING OF WATER. 175 
 
 aud an incident of property as much as the right to have soil itself in 
 its natural state unaltered by the acts of a neighbouring proprietor, 
 who cannot dig so as to deprive it of the support of his land. But in 
 the much-cousidered case of Acton v. BlundeU, in the Court of Ex- 
 chequer Chamber, a distincfioii is made for ike first time hctivcen loidcr- 
 ground waters and those wltkh flow on the surface ; and it was held that 
 the owner of a piece of land, who has made a well in it, and thereby 
 enjoyed the benefit of under-ground water, but for less than twenty 
 years, has no right of action against a neighbouring proprietor, who, in 
 sinking for and getting coals from his soil in the usual and proper 
 manner, causes the well to become dry. The decision goes no farther. 
 In the present case the water is proved to have been taken ft-om the 
 river after it formed part of its stream, not by the reasonable use of it 
 l)y another riparian proprietor, but by the digging of a well, which is 
 clearly a diversion ; and an action will lie at common law against the 
 Company for the injury which has resulted from that unauthorised act 
 to the known right of the mill-owners. And as to the abstraction of 
 the water, which never did form part of the river, but has been 
 prevented from doing so in its natural course by the excavation of the 
 well, whether the water was part of an underground water-course, or 
 percolated through the strata, we are also of opinion that an action 
 would lie. The mill-owners were entitled to the benefit of the stream 
 in its natural course ; and they are deprived of part of that benefit if 
 the natural supply of the stream is taken away" (7 Exch. 282). 
 
 Lord Eltcnhorouijh C.J. ruled, at Nisi Prius, in BaJston v. Benstcad, 
 that after twenty years nninterrupted enjoyment of a sp'iny of water ^ an 
 cCbsotute right to it is gained J/y the occupier of the close in wliich it issues 
 above ground ; and the owner of an adjoining close cannot lawfully cut 
 a drain whereby the supply of water to the spring is diminished. In 
 Acton V. Blundelt, Tindal C.J. said : " The rule of law which governs 
 the enjoyment of a stream, flowing in its natural course over the sur- 
 face of land belonging to diflFerent proprietors, is well established ; each 
 proprietor of the laud has a right to the advantage of the stream flow- 
 ing in its natural course over his land, to use the same as he pleases, 
 for any purpose of his own, not inconsistent with a similar right in the 
 proprietors of the land above and below ; so that neither can any 
 proprietor above diminish the quantity or injure the quality of the 
 water which would otherwise naturally descend, nor can any proprietor 
 below throw back the water without the licence or the grant of the 
 proprietor above. The rule is laid down in those precise terms by the 
 Court of King's Bench, in Mason v. Hitl, and substantially is declared 
 by Sir John Leach V.C. in the case of Wright v. Howard, and such we
 
 176 FLOWING WATER. 
 
 consider a correct exposition of the law. And if the right to tlie 
 enjoyment of nndergronnd springs, or to a well supplied thereby, is to 
 he governed by the same law, then undoubtedly in this case the 
 defendants could not justify the sinking of the coal-pits (which laid the 
 well dry), and the direction of the learned judge Rolfc B. would be 
 wrong. There is, however, a marked and substantial difference be- 
 tween the two cases, and they are not to be governed by the same rules 
 of law." The Court then went on expressly to state, that it intimated 
 no opinion whatever as to what the rule of law would be if there had 
 been an uninterrupted use of the plaintiff's right for more than the 
 last twenty years. But Parlce B. observed, upon Adon v. BlundcU 
 being cited in the argument in Broadhcni v. Ramshotham : " That case 
 decided that there is no right to a well unless the water has been used 
 for twenty years. This Court, and I believe all other courts, dis- 
 a])prove of that part of the judgment which denies the natural right to 
 tlie water." Coleridge J. referred to this dictum with approbation, in 
 Chasemore v. Richards, in order to show that he was not without 
 authority when he " ventured to disagree with what is laid down in 
 Actuii V. BlandeU, both as to the nature of the property in subteiTanean 
 waters, and as to the reasonableness of acquiring a right to use them, 
 as against the landowner in the way of a servitude upon his land." 
 
 The following statement of the law with regard to the right to flowing 
 water in Emhrey v. Owen was finally ado[)ted by the Exchequer Chamber 
 in Chasemore v. Richards: " The laiv as to flowing ivater is now put on 
 its right footing by a series of cases, beginning with Wright v. Howard, 
 followed by Mason v. Hill, and ending with that of Wood v. Waud (3 
 Exch. 773); and is fully settled in the American Courts. The right to 
 have the stream to flow in its natural state without diminution or altera- 
 tion is an incident to the property, in the land through which it passes ; 
 but flowing water is 2mt)Iici Juris, not in the sense that it is honum vacans, 
 to which the first occupant may acquire an exclusive right, but that it 
 is public and common in this sense only, that all may reasonably use it 
 who have a right of access to it, that none can have any property in 
 the water itself except in the i)articular portion which he may choose 
 to abstract from the stream and take into his possession, and that 
 during the time of his possession only {Mason v. Hill). But each 
 proprietor of the adjacent land has a right to the i/sufrwf of the stream 
 which flows through it." "The right of each proprietor of the adjacent 
 land to the usufruct of the stream which flows through it is not an 
 absolute right to the flow of all the water in its natural state ; if it 
 were, the argument which has been used that every abstraction of it 
 would give a cause of action would be irrefragable ; but it is a right
 
 EIGHT TO SIKK WELLS. 177 
 
 only to the flow of the water, and the enjoyment of it, subject to tlie 
 simihar rights of all- the proprietors of the banks on each side to the 
 reasonable enjoyment of the same gift of Providence." 
 
 The riijlit of siiikbuj a well, and thcrehj interfering with the suhfer- 
 ranean supj)Ii/ to a stream, was much considered in Chascmore v. 
 Richards, which decided that the owner of a mill on the banks of 
 a river cannot maintain an action against a landowner who sinks a 
 deep well in his own land, and by pumps and steam engine diverts 
 the underground water, which would otherwise have percolated 
 through the soil, and flowed into the river, by which for upwards 
 of sixty years the mill was worked. The i)laintiff had a mill, and 
 was entitled to the flow of the stream of the river Wandle. For 
 more than sixty years before the acts complained of, the defendant 
 had not abstracted any of the water from the stream itself, but con- 
 siderable abstraction had taken place from one of the sources of 
 supply to the stream. A large quantity of rain falling in a district 
 of many thousand acres, sank into the upper ground, and then flowed 
 and percolated through the strata to the Wandle, sometimes rising to 
 the surface in springs, and flowing as surface streams into the river ; 
 in other instanees finding their whole way underground into the river 
 by drains and courses, so as to supply the river above the mill. The 
 defendant, who could not reasonably foresee the precise eSect, sunk a 
 74 feet well on a piece of land, of his own, in the district, a quarter of a 
 mile from the commencement of the river, intercepted a portion of the 
 water, and supplied 500,000 gallons to Croydon daily. Part of this 
 water was flowing, and finding its way underground through the strata 
 towards the river, and but for its being so intercepted would have 
 reached the river above the plaintiff's mill, and in sufficient quantities 
 to have been of sensible value in and towards the working of it. 
 
 The Exchequer Chamber held {Coleridge J. diss.) that no action was 
 maintainable. Cresswell J. in his judgment examined and commented 
 on Diclcinson v. Grand Junction Canal Company. His lordship ob- 
 served: " The oivner of a mill on afloiving stream is in the same j)osition 
 as a riparian projyrietor ; he can have no larger right than that which 
 he has by nature against those above or below him, unless it has been 
 acquired by adverse user. A party, whether mill-owner or riparian 
 owner, suing for abstraction of water, must establish a right either 
 fii/re naturcB or by user, and in the latter case the user must be such 
 as to establish a servitude affecting the land through which the water 
 flows. Every riparian owner is by nature subject to the natural 
 rights of those lower down, which are in the nature of a servitude 
 imposed on the land — a servitude 7ie facias. Can, then, this servi-
 
 178 EIGHTS OP RIPARIAK OWNERS. 
 
 tilde, imposed by nature or by user, extend to water oozing through 
 land near a flowing stream, which if not intercepted would find its 
 way into that stream ?" 
 
 " None of the text-books or decisions in which an attempt has been 
 made to define the rights of riparian oicncrs to flowing water have 
 extended them beyond some definite ascertained flowing stream, with 
 the exception of Dickinson v. The Grand Junction Canal Comjmny. To 
 extend them further would interfere with rights of the landowner, 
 which- have never yet been disputed. Thus a riparian owner cannot 
 divert a flowing stream for any purpose, whether for irrigation or 
 draining his land, or any other, to the prejudice of other riparian 
 owners. But // has never yet been held, nor was it contended on the 
 aro-ument of this case, that a man migld not drain his land, and so 
 abstract iccder oozing through it, although such water would have 
 otherwise have found its way to a flowing stream. Nor has it been 
 contended that an owner of land situate near a flowing stream may 
 not make a pond for use or ornament, although water would ooze 
 into it which otherwise would have gone into the stream; but he 
 could not for any of these purposes abstract water from a flowing 
 stream. Again, the owner of land near a flowing stream has hitherto 
 been supposed to have the right of preventing water from coming into 
 his land from higher ground, provided he does not throw it back upon 
 his neighbours ; but he can no longer do that, if water so percolated is 
 to be juit upon the same footing as a natural flowing stream ; for that 
 he cannot lawfully divert, even for the purpose of preventing injury to 
 his land. But if he may prevent the water from oozing into his land, 
 why should he not allow it to come, and then collect and use it ? And 
 to allow this, would be in direct conformity with Raivstron v. Taylor, 
 and Broadbent v. Eamsbotham. The case of Dickinson v. The Grand 
 Junction Canal Compamj having been cited in argument in Broadbent 
 V. Eamsbotham, Parke B. observed, ' That case only decided that if a 
 person had a right to a stream jure ncdurcc, he had a right to its sub- 
 terranean course.' If it went beyond that, it appears to have been re- 
 pudiated by the same Court in both Rawstron v. Taylor and Broadbent 
 v. Eamsbotham, and I tliink rightly. And adopting the law laid down 
 in these two latter cases, I am of opinion that the action cannot be main- 
 tained, and that the judgment of the Court below must be confirmed." 
 
 This case of Chasemore v. Eichards was carried to the House of Lords 
 by "Writ of Error, but the judgment of the Exchequer Chamber was 
 confirmed. 
 
 Hence, the owner of an ancient water-mill on a river has no right 
 of action against an owner of land adjacent Avho digs a deep well on
 
 CUTTING OFF SPRING AT SOURCE. 179 
 
 his land, and thereby diverts the widerground waters, not Icnown to le 
 formed into a stream, flowing in a defined channel, which otherwise would 
 have percolated into the river, although the landowner does not use the 
 water for purposes connected with the land, but pumps it up and 
 carries it off in pipes to supply persons living in the neighbourhood, 
 many of whom had no right to use the water at all. 
 
 The above three cases were the only ones cited in the argument in 
 Dudden v. Tlie Guardians of the Poor of Clutton Union. There the water 
 from a spring flowed in a natural channel to a stream on which was a 
 mill ; the sjmng was cut off at its source hj the licence of the owner of the soil, 
 in which it rose, and it was held that an action lay against the person so 
 abstracting the water. The plaintiff was the owner of a mill situated on 
 a stream which rises near a place called the Holly Marshes. Prior to 
 1852, " The Red House Spring," which rose from the earth in a field of 
 Captain Scobell's, after a short course fell into the stream on which the 
 plaintiff's mill was situated. Before 1835, the tenant of the field had 
 slightly altered the course, in which the water after rising from the 
 spring flowed to the stream, and before such alteration the current 
 from the spring flowed across the adjoining field to the same stream, 
 in a crooked channel or gully, where watercresses grew, and trout had 
 been caught in summer, close up to the spring-head. The union work- 
 house is a mile to the north of the spring, and the Guardians in 1852 
 got a grant from Captain Scobell of the use of the spring, and caused 
 works to be constructed to supply the workhouse with water from it. 
 A tank was therefore sunk into the earth at the mouth of the spring, 
 and at a considerable depth, and a line of pipes took the water fi-om 
 thence to the workhouse. The overflowing of the tanks ran through 
 the channel to the stream. The jury found a verdict for the plaintiff, 
 leave being reserved for the defendants to move to enter a nonsuit, but 
 the Court discharged the rule. 
 
 Pollock C.B. said : " The real question is, whether there is a natural 
 watercourse, which, but for the acts done by the defendant, would have 
 conveyed water to the stream, and from thence to the mill of the plain- 
 tiff. If there is a natural spring, the water from which flows in a 
 natural channel, it cannot be lawfully diverted by any one, to the injury 
 of the riparian proprietors. Wlien the stream is above ground, a grant 
 must be presumed not only of the thing itself, but of all things neces- 
 sary to the complete enjoyment of it. If the channel or course under- 
 ground is known, as in the case of the river Mole, it cannot be inter- 
 fered with. It is otherwise when nothing is known as to the sources of 
 supply ; in that case, as no right can be acquired against the owner of 
 the land under which the spring exists, he may do as he pleases with
 
 180 ARTIFICIAL WATERCOURSES. 
 
 it ; and if in mining or draining his land he taps a spring, he cannot 
 be made responsible. This was a natural spring, which had acquired a 
 natural channel from its source to the river. It is absurd to say that a 
 man might take the water of such a stream, four feet from the surface." 
 Martin B, added : " I am of the same opinion ; the owners of land ad- 
 joining a stream, from its source to the sea, have a natural right to the 
 use of the water. A river begins at its source where it comes to the 
 surface, and the owner of the land on which it rises cannot monopolize 
 all the water at the source so as to prevent its reaching the lands of 
 other proprietors lower down" (26 L. J. Exch. 146). 
 
 It was held by the Court of Queen's Bench in Magor v. Cliadtvick (II 
 Ad. ct E. 571) that, in ihc ahscnre of a sj)ecial custom, artificial water- 
 courses are not distinguished in taw from natural ones ; and that a title 
 may be gained by 20 years' user, as well to the former as to the latter. 
 Therefore, where owners made an adit through their lands to drain the 
 mine, which they afterwards ceased to work, and the owner of a brewery, 
 through whose premises the water flowed for 20 years, after the working 
 had ceased, had during that time used it for brewing, he was held to 
 have gained a right to the undisturbed enjoyment of the water, and the 
 mines could not afterwards be worked so as to polhde it. But qnmrc 
 whether a universal practice in the neighbourhood to resume the use of 
 such adit waters for mining purposes after a long interval might not 
 have been set up in answer to the claim of easement, thereby raising 
 the inference that the party claiming used the water, not of right, but 
 only during the accidental disuse of the adit, and with knowledge that 
 the mine-owners reserved to themselves a power to recommence work- 
 ing, and thereby disturbing the waters. And as to the flow of water into 
 or from collieries, see Insole v. James, Smith v. Kenrick, and Clegg v. 
 Dcarden (12 Q. B. 576). 
 
 Wright V. Wdliams (1 M. & W. 77) decided that a claim by an owner of 
 a copper mine to sinJc pits on his own lands, to fill such pits with iron, 
 and to cover the same with water pumped from the mine, for the purpose 
 of precipitating the copper contained in such water, and afterwards to let 
 off the water innn-egnated with metallic suhstances into a watercourse on 
 the land of another, is a claim to a watercourse within the second section 
 of 2 & 3 IIV//. IV. c. 71, and that in a plea under that statute, it is suf- 
 ficient to allege that the user had existed for 40 years l)efo^-e the com- 
 mencement of Die suit, and it need not be alleged to have been for 40 
 years before the act complained of in the declaration. The decision in 
 this case was again confirmed by the Court of Exchequer in Ward v. 
 Robins, and fully approved of and acted upon by the Court of Queen's 
 Bench in Ricliurds v. Fry.
 
 POLLUTION OF A STREAM. 181 
 
 Principally on the .authority of Wright v. Williams it was held in 
 Carhjon v. Lovering, where the declaration was for ivrongfuUy throwing 
 sand, stons, ruhhle, and other stuff (which became dislodged or severed 
 by the defendant's workmen in the course of working his tin mine, and 
 using the tin and tin ore) into a natural stream of water, flowing 
 through the plaintiff's lands, whereby the channel was obstructed, and 
 the water flowed over and upon the lands and destroyed their produce, 
 that there was no reason why such privilege, although injurious to the 
 plaintiff to a great extent, might not be tJie subject matter of a grant. 
 " The plaintiff," said Watson B., '' as a riparian proprietor, has a right 
 to have the waters of this natural stream run through his land in its 
 accustomed purity, without being polluted by any riparian proprietors 
 or others higher up the stream ; but that right he may abandon, by 
 allowing an user to have continued for twenty or forty years ; or he 
 may grant the privilege to an owner higher up the stream, for his ad- 
 vantage, of invading that right to the detriment of the water flowing 
 through the plaintiff's lands. We can see no reason why such a 
 privilege although injurious to the plaintiff to a great extent, might 
 not be granted" (1 H. & N. 784 ; 32 L. J. Q. B. 231). 
 
 Jloore V. Webb was an action for imtluting a stream and impregnating 
 it with noxious substances, whereby the plaintiff's cattle were unable to 
 drink of the water, and had to be di-iven to a distance. The defendant 
 pleaded an immemorial right to use the water of the stream for the 
 purposes of his trade as a tanner and fellmonger, and returning it pol- 
 luted to the stream when so used, and also prescriptive rights for twenty 
 and forty years respectively. The plaintiff new-assigned " that he sued 
 not only for the grievances in the pleas admitted and attempted to be 
 justified, but for that the defendant committed the grievances over and 
 above what the defences justified." At the trial the presiding judge 
 directed a verdict to be entered for the defendant on all the issues 
 except the first and second (viz., " Not guilty ") ; but the Court of 
 Common Pleas held, that whether the pleas were to be understood as 
 claiming an immemorial or a prescriptive right not limited to the pur- 
 poses of the tannery, or the more limited right to use the water for the 
 purposes of the business as carried on more than twenty years ago, the 
 verdict was not warranted by the evidence, and also that the new assign- 
 ment was well pleaded. The rule was made absolute for a new trial. 
 
 The declaration in Whaleg v. Laing, stated that plaintiffs were pos- 
 sessed of coal mines, and steam-engines and boilers for working the 
 same, and enjoyed the benefit of the waters of a certain canal near the 
 said engines, &c., to supply the same with water for working the same, 
 &c., and which said waters then ought to have flowed and been without
 
 1S2 DIFFERENCE BETWEEN A DRAIN AND A WATERCOURSE. 
 
 the fouling therein mentioned, yet that tlie defendant fouled the same, 
 &c. The facts only showed that plaintiffs by permission of a canal 
 company, made a communication from the canal to their own premises, 
 by which water got to those premises, and with which water they fed 
 their boilers ; and the defendant fouled the water of the canal, and by 
 the use of it plaintiffs* boilers were injured, defendant having no right 
 or permission to do this from the canal owners. The Exchequer 
 Chamber decided that the declaration disclosed no cause of action, 
 reversing the decision of the Court of Exchequer. 
 
 According to all the authorities from the Digest downwards, there 
 is a difference in point of Jaw hetween a drain and any other tvatercoiirse. 
 Mayor V. Chadiciclc (11 Ad. & E. 571) shows that the law of easements 
 in respect of watercourses is generally the same whether they are natural 
 or artificial ; hwi that case is not altogether satisfactory, and inconsistent 
 with Arlacriyht v. Gcll (5 M. & W. 203). The latter turned upon the 
 riykt of the party receimny water drained from a mine to compel the 
 owners of the mine to continue such discharge ; and the court decided 
 that the plaintiffs never acquired any right to the artificial watercourse 
 Avhicli supplied their cotton mills, either by the presumption of a grant, 
 or by 2 & 3 117//. IV., c. 71, s. 2, as against the owner of the lower level 
 of the mineral field, or the defendants acting by their authority. 
 
 In ^Vood V. ^Yaud (3 Exch. 7-48) the Court stated they had again con- 
 sidered that case and were satisfied that the principles laid down as 
 governing it were correct ; and that no action lies for an injury by the 
 diversion of an artificial watercourse, where, from the nature of the case, 
 it was obvious that the enjoyment of it depended upon temporary cir- 
 cumstances, and was not of a permanent character, and where the inter- 
 ruption was by the party who stood in the situation of the grantor. The 
 Court added, in reference to Mayor v. ChadwicJc, "We entirely concur 
 with Lord Denman C.J., that the proposition — that a watercourse, of 
 whatever antiquity and in whatever degree, enjoyed by numerous persons 
 cannot be enjoyed so as to confer a right to the use of the water, if proved 
 to have been originally artificial — is quite indefensible ;" but, on the 
 other hand, the general proposition " that under all circumstances the 
 right to watercourses arising from enjoyment, is the same whether 
 they be natural or artificial, cannot possibly be sustained." A riparian 
 proprietor has a right to the natural stream of water flowing through 
 the land in its natural state ; and if the irater lepollided hy a proprietor 
 hiyher up the stream, so as to occasion damage in law, though not in 
 fart, to the first-mentioned proprietor, it gives him a good cause of 
 action against the upper proprietor, unless the latter have gained a 
 right by long enjoyment or grant {Wood v. Waud). Where the owner
 
 FLOW OF WATER FROM AGRICULTURAL DRAIN. 183 
 
 of land through which a stream flows has within 20 years built mills 
 upon its bank, and applied the water of stream to the working of 
 them, he may recover upon an issue raised by a traverse of an allegation 
 that his right to the water was " by reason of the possession of the 
 mills." (ib.) So where water has flowed in an artificial and covered 
 watercourse for more than 60 years from a colliery into an imme- 
 morial and natural stream, upon whose banks the plaintiff's mills are 
 situated, the plaintiff" in such case has no right for diversion of the 
 water of such artificial watercourse against a party through whose land 
 it passes, but who does not claim under, or who is unauthorised by the 
 colliery owners. The case, however, would be different if the water 
 were polluted ; and the abstraction of water to the amount of five per 
 cent., or its detention so as to occasion sensible inconvenience, will 
 support an action for such injury." (ih.) 
 
 Greatrex v. Hayivard (22 L. J. Ex. 137), which was governed by the 
 above case, and ArJcivright v. Gell, decided that the flow of icater from a 
 drain made for the jnirposes of agrkidtural imiyrovements for twenty years 
 does not give a right to the neighbour, so as to preclude the proprietor 
 from altering the level of his drain for the improvement of his land. 
 Here the plaintiflF's two closes adjoined each other, and were also adjoin- 
 ing to a close in the occupation of the defendant. From the year 1796 
 till the time of the action (1852), there was a pit partly situate in each 
 of the plaintiff's closes, and during all that time the pit had principally 
 been supplied with water coming from the defendant's close. The water 
 so supplied to the pit ran through and by means of an underground sougli 
 or drain, which had before 1796 been by the owners or occupiers of the 
 defendant's close laid in, and made to run out of the same into a ditch 
 of the plaintiflF's, which bounded the defendant's close, and from and 
 out of this ditch into the pit. This sough was made for the purpose oi 
 carrying the water off" the defendant's close, and for its better cultiva- 
 tion ; and the water from the sough usually flowed in a regular stream, 
 but was subject to occasional interruptions from the sough being tem- 
 porarily choked up by the roots of trees or otherwise. The pit was an 
 open pit, and the water in it had ever been, during the above-mentioned 
 time, used and enjoyed by the occupiers of the plaintiff''s two closes for 
 watering and washing cattle and otherwise, openly and without inter- 
 ruption. The sough aided the general surface drainage of the defen- 
 dant's close, which was of a boggy nature, and the water which passed 
 through the sough did not come from any defined or ascertainable 
 source. In September, 1851, the defendant made alterations in the 
 drainage of his close, by constructing a new sough, and by deepening 
 the course of the old sough, for the purpose of more eff"cctually draining
 
 ISi ESCAPE OF LIQUID MANURE INTO NEIGHBOUR'S FIELD. 
 
 and cultivating his close ; and by means of the alterations, the water, 
 which had been accustomed to flow into the plaintiff's pit, flowed into 
 the ditch at a lower level, whereby the plaintiff's pit lost the water 
 which had been accustomed to flow into it through the said sough. 
 
 The plaintiff had a verdict before Alderson B. for 40s., subject to a 
 special verdict ; and the Court, after a very careful consideration, gave 
 judgment for the defendant. It was contended for the plaintiff that, by 
 the uninterrupted enjoyment of the flow and use of this water for the 
 time mentioned, the plaintiff had gained a right to its continuance 
 either at common law, by the presumption of a grant, or by virtue of 
 the Prescription Act 2 & 3 117//. IV. c. 71. Parlce B. observed : "The 
 cases of Arlncrtght v. GeJl and ^Yood v. Waucl are opposed to the 
 plaintiff's claim. TJie right of a pciriy to an artificial water-course, as 
 against the party creating it, must depend upon the character of the 
 watercourse, and the circumstances under which it was created. The 
 watercourse is clearly of a temporary nature only, and is dependent upon 
 the mode which the defendant may adopt in draining his land. This 
 is the precise case M'hich was put by the Court in Wood v. ]Yaud, where 
 it is said by the Court in their judgment, that ' the flow of water for 
 twenty years from the eaves of a house could not give a right to the 
 neighbour to insist that the house should not be pulled down or altered, 
 so as to diminish the quantity of water flowing from the roof. The 
 flow of water from a drain for the purpose of agricultural improvements 
 for twenty years could not give a right to the neighbour so as to 
 preclude the proprietor from altering the level of his drains for the 
 greater imj^rovement of his land. The state of circumstances in such 
 a case shows that one party never intended to give, nor the other to 
 enjoy, the use of the stream as a matter of right: Alderson B. added : 
 ' In one sense, perhaps, it may be said that the plaintiff has enjoyed the 
 use of this water as of right, because the defendant had not in any 
 way impeded such use ; but it is not such a user as of right as will 
 Eer\-e his present purpose, for there has been no adverse user. Take 
 the case of a farmer, who under the old system of farming has allowed 
 the liquid manure from his fold-yard to run into a pit in ?iis neighbour's 
 field, but upon finding that the manure can be beneficially applied 
 to his own land has stopped the flow of it into his neighbour's 
 pit, and converted it to his own use ; could it be contended that 
 the fact of his neiglibour having used this manure for upwards of 
 twenty years would give the latter the right of requiring its con- 
 tinuance ? ' " 
 
 In liawslron v. Taylor (25 L. J. Ex. 33) it was held that the owner of 
 land has an ungiialified right to drain it for agricultural imr2wses, in
 
 EIGHT TO DRAIN FOR AGRICULTURAL PURPOSES. 1S5 
 
 order to get rid of mere surface water, the supply of the water beuif^ 
 casual, aud its flow followiug no regular or definite course ; and a neigh- 
 bouring proprietor cannot complain that he is thereby deprived of f-uch 
 water, which would otherwise have come to his land and filled his 
 reservoir. The land of the plaintiff and defendant was contiguous, and 
 just on the outside of the defendant's land there was a wet spongy spot 
 (D), where at most seasons some water rose to the surface, and sufficient 
 collected to flow down the slope of the land. In times of wet there 
 was a great body of water, but scarcely any after a long drought. 
 There was no regularly formed ditch or channel for water, the place 
 where it flowed being constantly troddeu-in with cattle. At times 
 there was a drinking place at the corner of the field, near (D), but 
 unless it was kept clear it was soon troddcn-in with cattle. Near The 
 Slacks farm-house by which it flowed there was a channel cut, which 
 conveyed the water into a trough there, which the water flowed through, 
 and supplied the house. xVfter leaving the trough, the water took no 
 particular direction. 
 
 It either flowed over the meadow down the slope of the land, or the 
 tenant of the Slacks made it flow through the manure-heap, and then 
 over the meadow. But whichever direction was given to the water, so 
 much of it as was not absorbed by the land (and all was not absorbed 
 except in times of drought) ran into an old watercourse of the plain- 
 tiff's, which led to a reservoir of the plaintiff's. The water had so 
 flowed for upwards of twenty years, and the defendant, for the purpose 
 of draining his land and of supplying some part of his property with 
 water, diverted this water from the plaintiff's reservoir. At another 
 spot (K) on plaintiff's land, as long ago as one could recollect, water 
 had always risen to the surface. There had generally been a drinking 
 place for cattle formed with stones, and the overflow of the water went 
 down a ditch, and thence into a watercourse, to the plaintiff's reservoir. 
 There was also a third point, which is fully referred to in Parke B.'s 
 judgment. Speaking of spot D, his lordship said, " The plaintiff has 
 no right to the rain-water which may flow from that spot to his 
 land ; and what authority is there for saying that spring- water differs 
 from rain-water ? " '' On the question," his lordship added, " as to 
 the interference of the defendant Avith the Avater at the spot 1), the 
 defendant is entitled to have a verdict. This is the case of common 
 surface water rising out of spongy or boggy ground, and flowing in no 
 definite channel, although contributing to the supply of the plaintiff's 
 mill. This water having no defined course, and its siq^ply heing merely 
 casual, the defendant is entitled to get rid of it any way he pleases. 
 The same observations apply to the water rising at the point Iv. This
 
 186 SURFACE WATER. 
 
 water has no defined course, and the supply is not constant, therefore 
 the plaintiff is not entitled to it. The case of Dickinsoji v. Grand 
 Junction Canal Compani/ does not apply ; and the defendant is entitled 
 to get rid of this also, for the purpose of cultivating his land in any way 
 he pleases. 
 
 " With respect to the last and most important part, which relates to 
 the interference with the flow of the water to Lower Gin Bank, we 
 must look to the deed, for the plaintiff's right to that water depends 
 solely upon the deed. By that instrument the defendant conveys to 
 the plaintiff the Gin Bank, together with all ways, waters, water- 
 courses, liberties, privileges, rights, members, and appurtenances' to 
 the same close and piece of land belonging or appertaining. Now this 
 right to this water could not pass independently of the deed, as the 
 plaintiff could have no right to water in alieno solo. Natural water- 
 courses are like ways of necessity. The right to have a stream running 
 in its natural direction does not depend on a supposed grant, but is 
 jnrc naturcB {Skury v. Pigott). But if the stream is artificial, no such 
 right exists. This is not a natural watercourse ; but the plaintiff is 
 entitled to the flow of this water under the conveyance which gives 
 it to him by the terms of the grant. It is necessary to say whether 
 the right passed under the proviso, which, however, throws light 
 upon the grant, and shows that this water was intended to be con- 
 veyed. The proviso is for the benefit of the defendant, and gives him 
 the right to apply any water flowing through his land for certain 
 specified purposes ; but when he has taken such water, he is bound to 
 return the surplus into its usual channel in the watercourse at a certain 
 place. 
 
 " And I am of opinion that the defendant has no right to make any 
 permanent diversion of the water. He may take away the water in 
 buckets, or by any other mode of conveyance, for domestic, agricultural, 
 or manufacturing purposes ; but when he has taken what he wants, he 
 is bound to return the surplus into its usual channel at the place men- 
 tioned in the plan for the use of the plaintiff, and he cannot divert the 
 water. It seems to me clear, on looking at the proviso, what the de- 
 fendant grants to the plaintiff by the conveyance ; and the defendant is 
 not entitled to more than what is reserved to him in the proviso. He 
 has permanently diverted the water by placing it under lock and key, 
 and by so doing has deprived the plaintiff of the use of it. I am there- 
 fore of opinion that the verdict ought to be entered for the defendant 
 as to the two first causes of action ; and as to the third, that the 
 verdict entered for the plaintiff should stand." Piatt B. observed, 
 •' As to the two first points, th§ defendant is clearly entitled to succeed,
 
 IRRIGATION. 187 
 
 as this was mere surface water ; and the defendant had a right to drain 
 his land, and the pLaiutiff could not insist upon the defendant main- 
 taining his fields as a mere water-table. With respect to the third 
 point, the plaintiff is entitled to retain his verdict." And per 3Iartm 
 B. : " The proprietor of the soil has in-ima facie the right to drain his 
 land ; and unless there is some express authority to show that his 
 motive in so doing affected the question, in my opinion the motive is 
 altogether immaterial." 
 
 In some of its points, Broadlent v. Eamsdofham was wholly undis- 
 tingnishable from, and governed by the Exchequer decision in the 
 above case. It was here decided that a lamlowner has a right to ap- 
 2yrop-iate surface ivater ivhich flows over his land in no definite channel, 
 although the water is thereby prevented from reaching a watercourse 
 which it previously supplied. Therefore where the plaintiff's mill for 
 more than fifty years had been worked by the stream of a brook which 
 was supplied by the water of a pond filled with rain, a shallow well 
 supplied by subterraneous water, a swamp, and a well formed by a stream 
 springing out of the side of a hill, the waters of all of which occasion- 
 ally overflowed and ran down the defendant's land in no definite 
 channel into the brook, the plaintiff had no right as against the de- 
 fendant to the natural flow of any of the waters. The disputed water 
 in that part of the case, to which the reasoning in Ran-stron v. Taylor 
 especially applied, was only the overflow of a well, which ran into a 
 ditch (the lowest adjoining ground) made artificially, and for a dif- 
 ferent purpose, running beside a hedge. . After that it was squandered 
 over a swamp made by the feet of cattle treading about ; and not 
 till long after this, what still remained of it found its way, with 
 other water, into what might then be called a definite natural water- 
 course. 
 
 Irrigation is a riparian right, to ho exercised sulject to the rights of 
 other riparian j^ropriefors. The riparian proprietor above might, no 
 doubt, by grant, divest himself of his right to use the stream for the 
 purpose of irrigation; but the mere non-user of the right would not 
 raise a presumption of a grant. Per Willes J. {Sampson v. Hoddinott) : 
 "Where there is an undue detention of ivater hy the riparian "proprietor 
 above, it is not necessary in an action to show actual damage to the 
 plaintiff's reversionary interest ; it is enough to show an obstruction of 
 his right ; and such obstruction of his right being shown, the law will 
 infer damage {ih.). The right of the riparian propi'ietor is, hoivever, 
 limited to natural streams, and does not attach in the case of artificial cuts 
 or drains {ih., 26 L. J. C. P. 148). 
 
 It would seem to be settled in Emhrey v. Owen that a ripcwian prO'
 
 188 INAPPRECIABLE ABSTRACTION OF WATER. 
 
 priefor has ivithhi certain hounds a r'ujlit to use ivater for the jnirjwse of 
 irriyation. The point was raised in Wood v. Waud, but it became un- 
 necessary to decide it. In Emhrcij v. Owen the plaintiff occupied a 
 water grist-mill on tlie banks of the Rhiew, and the defendant owned 
 land on both sides of that river above the mill. The action was brought 
 against her for diverting part of the water of the river, to irrigate cer- 
 tain meadows on the northern bank, in the occupation of her tenant 
 John Jones. The water was diverted by means of an iron trough or 
 aquednct, placed near a waste weir, from whence the surplus or waste 
 water was carried into the trough or aqueduct, and by it over the river 
 into the main and floating gutters of the meadow, when required for 
 irrigation. At other times such surplus water was discharged from 
 the trough or aqueduct direct into the bed of the river by means of an 
 iron flap or sluice in the middle side of the trough, so constructed as 
 to be opened for the latter purpose at pleasure. A portion of the water 
 was lost by absorption and evaporation in the process of irrigation, but 
 the working of the plaintiff's mill was not impeded, and all the wit- 
 nesses agi-eed that there was no sensible diminution of the stream by 
 reason of the diversion. The verdict was for the defendant on the first 
 issue, as to whether there was any sensible diminution of the natural 
 flow of the water by means of the diversion, which they answered in the 
 negative ; and also for the defendant on the other issues, as to whether 
 the quantities of water absorbed and evaporated in the process of the 
 defendant's irrigation were small and inappreciahle quantities, which 
 they answered in the affirmative. Talfourd J. directed that the verdict 
 should be entered on the above issues for the defendant, reserving leave 
 to the plaintiffs to move to enter it for them with nominal damages. A 
 rule nisi was accordingly obtained, but the Coui-t decided that the verdict 
 was properly entered for the defendant on the issues above named. 
 
 Parke B. said in his judgment, "The most important question is 
 that which arises on the plea of Not guilty, the jury having found that 
 no sensible diminution of the natural flow of the stream to the plaintiff's 
 mill was caused by the abstraction of the water. That the working of 
 the mill was not in the least impeded was clear on the evidence, and 
 on that finding we think the verdict was properly ordered to be entered 
 for the defendant. 
 
 " In America, as may be inferred (3 Kent's Com. Lect. 52, 439-44G), 
 and as is stated in the judgment of the Court of Exchequer in Wood v. 
 Waud, a very liberal use of the stream for the purposes of irrigation 
 and for carrying on manufactures is permitted. So in France, where 
 every one may use it en bonjjcre de faniille et pour son plus grand avan- 
 tage, a man may make trenches to conduct the water to irrigate his
 
 DIVERSION OF WATERCOUr.SE FOR IRRIGATION. 189 
 
 land, if he returns it with no other loss than that which irrigation 
 causes. In Wood v. Waud it was observed that in England it is not 
 clear that a user to that extent would be permitted ; nor do we mean to 
 lay down that it would in every case be deemed a lawful enjoyment 
 the water if it was again returned into the river with no other dimhmtion 
 than tJmt which ivas caused hy the alsorptwn and evajmrition attendant 
 on the irrigation of the lands of the adjoining proprietor. This must 
 depend upon the circumstances of each case. On the one hand, it could 
 not be permitted that the owner of a tract of many thousands of acres 
 of porous soil abutting on one part of the stream could be permitted to 
 irrigate them continually by canals and drains, and so cause a serious 
 diminution of the quantity of water, though there was no other loss to 
 the natural stream than that arising from the necessary absorption and 
 evaporation of the water employed for that purpose ; and on the other 
 hand, one's common sense would be shocked by supposing that a 
 riparian proprietor could not dip a watering-pot into the stream in 
 order to water his garden or allow his family or his cattle to drink it. 
 It is entirely a question of degree, and it is very difficult, indeed im- 
 possible, to define precisely the limits which separate the reasonable 
 and permitted use of the stream from its wrongful application ; but 
 there is often no difficulty in deciding whether a particular case falls 
 within the permitted limits or not." " There has been no injury in 
 fact or in law in this case, and therefore the verdict for the plaintiff 
 should not be disturbed." The rule was discharged, the defendant 
 consenting that on the fourth, seventh, and tenth issues a verdict should 
 be entered for the plaintiff (20 L. J. Ex. 215). 
 
 The facts of Northam v. Hurley may be learnt from tlie judgment of 
 Coleridge J. : " In this case the plaintiff, occupying Fourth Tanner's 
 meadow, complained that the defendant had diverted the channel of a 
 watercourse in Third Tanner's meadow ; and in support of liis case he 
 relied upon a deed between Sylvanus Fox, owner of Fourth Tanner's 
 meadow, and Edward Fox and others (whose interest in the soil had, 
 however, determined before the execution of the agreement), owners of 
 First, Second, and Third Tanner's meadows, whereby it is stipulated 
 that Edward Fox and others should have the use of a certain stream of 
 water for irrigation for ten days in every month, and that at all other 
 times the same stream should be under the control of Sylvanus Fox and 
 his assigns, and should flow in a free and uninterrupted course through 
 a channel therein particularly described, into Fourth Tanner's meadow, 
 with an undertaking that the owners of First, Second, and Third 
 Tanner's meadows should cleanse the channel, and with liberty to 
 Sylvanus Fox and his assigns to do so on their default.
 
 ]90 RIGHT TO WATER BY DEED. 
 
 " This deed, in our judgment, operates as a grant of the easement of 
 the watercourse therein described ; and inasmuch as the channel is 
 specified with a right to enter and cleanse it, we are of opinion that 
 Sjdvanus Fox, and those claiming under him, acquired a right in 
 respect of that channel ; and that a change of the channel would be an 
 injury to this right. And as the plaintitf claimed under Sylvanus Fox, 
 and the defendant claiming under the owners of the First, Second, and 
 Third Tanner's meadows had diverted the stream from the specified 
 channel, though without damage to the plaintiff, we think there was a 
 cause of action for injury to the right. Our judgment is founded on 
 the eflfect of the deed which governs the rights of the present parties ; 
 and in so deciding we do not intend at all to limit the salutary principle 
 laid down in Emhrcy v. Owen, to the effect that the superior riparian 
 proprietors may use the stream for all reasonable purposes, while in 
 their land, provided they send it on, without material diminution or 
 alteration, to inferior proprietors. It was further objected that if such 
 was the case the plaintiff could not recover for it under the present 
 declaration, claiming the right by reason of possession, without men- 
 tioning or referring to the deed. But this objection we think unten- 
 able. If the easement was granted to the owners of Fourth Tanner's 
 meadow, we think the precedents are clear that it may be described in 
 a declaration as an easement to which the plaintiff is entitled by reason 
 of his possession of that meadow" (22 L. J. Q. B. 183). 
 
 The above case, which established that where the rights of the far ties 
 are derived from a deed or other instrument, their rights must he ascertained 
 from the instrument atone, and that general doctrines of law are not aj)j)li- 
 cahle, laid down the principle on which Whitehead v. Paries was decided 
 (27 L. J. Ex. 1G9). In this case, by lease dated 1827, Lord Derby 
 demised to one "Woodcock a dwelling-house and fifteen closes of land, 
 and granted all streams of water that might be found in four of those 
 closes, called The Clough, The Moorin Clough, The Brow, and The 
 Marleds, excepting out of the demise all timber and other trees, &c., 
 mines and minerals, <tc., stone, gravel, sand, and clay, &c., and all 
 streams of water, except those above granted, then being or thereafter 
 to be found in or upon the premises demised, with power for Lord Derby, 
 his heirs and assigns, and his and their servants and workmen, from 
 time to time " to enter upon the premises, and to crop, fell, search for, 
 &c., and make marketable all or any of the before-mentioned articles; 
 to make any clay into bricks or tiles on the premises, &c., and to divert 
 or alter the course of any river, brook, spring, or water, &c." There 
 was a plan annexed to the lease showing a stream of water on the north 
 side of the demised premises, and flowing through their whole extent
 
 IRRIGATION BY USE OF ARTIFICIAL DAM. 191 
 
 from east to west, and the four closes were situated on the banks of this 
 stream. There was no other stream on the surface, but certain wells 
 were in existence in tliose closes, and others were subsequently found. 
 It was held by the Court of Exchequer that the wells and all water in 
 the four closes passed by the grant in question to Woodcock, and that 
 neither Lord Derby nor his lessees could work the mines so as to cut 
 off the springs in the closes in question. And j;«- Martin B. : " Lord 
 Derby granted to Woodcock all the water which might be found on the 
 closes in question. Lord Derby cannot derogate from his grant, and 
 the defendant, his lessee, is in the same position. Nortliam v. Hurley 
 decided for the first time, what appears to me to be clear, viz., that if, 
 u]3on a question of water rights, tliere is an agreement by deed, such 
 deed will regulate the rights of the parties" {Ih.). 
 
 Greenslade v. HalUdcuj was one of the earliest cases on irrigation. 
 The plaintiff owned certain ancient meadow land near a small stream 
 which flowed through defendant's land. For fifty years the tenants of 
 the plaintiff and their i:)redecessors had been accustomed to enter on 
 the defendant's land, and pen back the water of this stream by placino- 
 a row of loose stones across it at a certain point ; and when the water 
 was so penned back by this dam or obstruction, a portion of it ran 
 through a small archway along an artificial cut, which passed to some 
 distance over the defendant's laud, and so irrigated the plaintiff's 
 meadow. In dry weather the tenants, according to the plaintiff's wit- 
 nesses, placed a board or fender across the stream, but neither was 
 permanently fixed till the year before the action, when the plaintiff's 
 tenant placed a board in front of the stones, and fastened it down by 
 two stakes driven into the bed of the stream, on the top of which stakes 
 were crooks embracing the upper edge of the board. Whether this 
 board penned the water higher than the ordinary dam of loose stones, 
 or whether a board had ever been used before, except at a very remote 
 period when the water meadow was in the possession of the defendant's 
 predecessors, did not satisfactorily appear from the evidence. TJie 
 defendant, however, conceived that the permanency of the dam mioht 
 establish for the plaintiff a right to a greater extent than he had enjoyed 
 before, and be prejudicial to her own enjoyment of a mill above and 
 water meadows below the dam, and caused the stakes to be pulled up 
 and the board to be removed ; saying to the tenant, at the same time, 
 that until it was proved what quantity of water ought to go, he should 
 exercise no right there. 
 
 At the trial, Taunton J. seemed to think that the defendant had 
 denied the plaintiff's right in toto, and excluded this declaration as not 
 being admissible evidence. But he told the jury that if the board
 
 192 CROSSING another's LAND FOR PURPOSES OF IRRIGATION. 
 
 acted on the stream in an unusual manner, and penned the water higher 
 than it ought, the defendant was entitled to pull it down. A verdict 
 for the i>laintiff was confirmed by the Court, " on the short ground that 
 the defendant had done more than she ought to have done." And ^^er 
 Tindal C.J. : " The board in dispute was fastened by stakes, which was 
 not usual ; but the defendant, instead of removing the stakes alone, 
 removed the board also. If a party who had a right to a stone weir 
 were to erect buttresses, one who should oppose the erection of the but- 
 tresses could not justify demolishing the weir as well as the buttresses." 
 And see also Ward v. Rubins (15 M. & W. 237). 
 
 TJie oMnicUon of an easement of going across difendanVs land to dam 
 vp water, and hring it hy an artificial cut through the defendant's land to 
 the jilainlifs far irrigation and the use of his cattle, was the subject of 
 Beeston v. Weafe (25 L. J. Q. B. 115). The defendant occupied land 
 which was bounded on the south by land in the occupation of the plain- 
 tiff, called the Coiv Pasture. A natural stream ran along the north side 
 of the defendant's land, and there was an artificial watercourse passing 
 from this brook through the defendant's land (crossing a road on the 
 same land) to the land of the plaintiff. According to the evidence this 
 watercourse looked as old, sixty years ago, as at the present time. For 
 more than forty years, and as long back as living memory went, the 
 occupiers of the plaintiff's land had been in the habit of crossing the de- 
 fendant's land, and of placing sods so as to form a dam, obstructing the 
 course of the water in the natural brook immediately below the point at 
 which the artificial watercourse joined it. The effect of this was to 
 throw the water into the artificial watercourse, through which it flowed 
 across the defendant's land to the land of the plaintiff; where it supplied 
 a pit or pond. This the occupiers of the plaintiff's land had constantly 
 done to supply their cattle with water, at such times as the lowness of 
 the water in the brook rendered it necessary. When the water was 
 wanted by the occupiers of the defendant's land, as it usually was at cer- 
 tain seasons of the year for the irrigation of that land, the water did 
 not reach the plaintiff's land. The water, after being conducted on to 
 the land of the plaintiff, ran off by another arm and rejoined the natural 
 brook. It was not denied tliat the defendant had done the acts com- 
 plained of. This evidence being uncontradicted except by an unsuc- 
 cessful attempt to prove an interruption, Erie J. told the jury that if 
 the occupiers of the i^laintiff's land at the proper season had at their 
 will and pleasure turned the water on to tlieir land for the purpose of 
 supplying the cattle with water, the plaintiff was entitled to a verdict. 
 The Court refused a new trial, and held that the jury Avere warranted 
 in inferring a user as of right by the occupiers of plaintiff's land of the
 
 BFJXGIXG WATER BY ArvTIFICIAL CUT FOR IRRTGATIOX. 193 
 
 easoinent on the rlefendani's land ; and tliat for tlie interruption of 
 sucli casement plaintilT mii^ht maintain an action against defendant. 
 
 Lord CampMl C.J. said, in delivering judgment : " The defendant's 
 counsel, in arguing that the plaintiff ought to have been nonsuited, 
 relied mainly on ArJcwright v. Goll, Wood v. Waud, and Greatrex v. 
 Hayiuard. We entirely concur in those decisions, thinking that the 
 plaintiif did not in any of them support his allegation as to the ease- 
 ment claimed. In none of them was there any reasonable ground for 
 inferring that the casement had been acquired by prescription or 
 grant. But we do not consider that the cases lay down any such rule 
 as that enjoyment and acts, which without the existence of the ease- 
 ment would be tortious and actionable, may not be evidence of the 
 right to the use of water, although it flows in an artificial cut. This 
 doctrine would destroy the right to the great majority of mill leats all 
 over the kingdom." " In the cases referred to, regard was had to the 
 water being obtained artificially by the owner of the servient tenement, 
 rather than to the water running through an artificial cut. Here the 
 water in question is part of the water of a stream which has flowed on 
 the surface of the country from the time that onr globe took its present 
 conformation. But the strength of the plaintiff's case (distinguishing 
 it from the cases relied upon by the defendant) is, that here the occu- 
 pier of the dominant tenement, for the purpose of letting in the water 
 from the natural current of the river into the artificial cut, and from 
 the artificial cut into his pond in the Cow Pasture, was constantly 
 going upon the servient tenement, with notice to the occupier of the 
 servient tenement, and doing acts which, without the easement, would 
 be trespasses. Such has been the practice as far back as living 
 memory goes, and may have been the practice from time immemorial. 
 Yet for these acts no action has been brought, nor has any complaint 
 been made. If you are to presume that they took place by the licence 
 of the occupier of the servient tenement, then by constant user ac- 
 quiesced in, no easement can be acquired. 
 
 "But, if it were not that the occupier of the servient tenement 
 has himself used the water flowing through the artificial cut for 
 irrigation, no plausible objection could be made to the easement which 
 the plaintiff' claims, and we do not see that the use of the water on the 
 servient tenement takes away from the effect of the use of it for 
 the dominant tenement, regard being had to the positive acts done 
 by the occupier of the dominant tenement upon the servient tenement 
 for the purpose of enjoying the easement. Great stress was laid by the 
 defendant's counsel on the often-repeated assertion, that the artificial 
 cut was made for a temporary purpose. The water flowing through the
 
 1P4 IXJUHY TO REVERSION 
 
 flit ]ia?. as ftir Imck as livings memory goes, and prohaMy much longer, 
 been constantly applied to two purposes— the irrigation of the meadow 
 on one side of the cut, and the watering of the cattle pasturing in the 
 meadow on the other side of the cut. These purposes cannot be con- 
 sidered temporary in their nature, although there is no certainty that 
 the meadows may not at some remote time become the sites of streets 
 and squares in a town. The defendant's counsel argued strongly 
 against the probability of such a grant, whereby the owner of the 
 servient tenement would hare deprived himself of the power of con- 
 verting it to any pui-pose inconsistent with the easement granted. But 
 it is part of the generally fictitious supposition of a grant that it 
 proceeds upon an adequate consideration." 
 
 The latest case on the subject of irrigation is Sampson v. Hodclinott, 
 which was an action for cm injury to plahitiff's reversion lij divert in cj a 
 stream of uriter. Certain tenants of the plaintiff were possessed of 
 certain water meadows, into which meadows he claimed that a portion 
 of the water of certain streams of right ought to have run, for watering 
 the same, and Avhich defendant diverted and obstructed. A verdict 
 was taken for the plaintiflF for £200 damages, subject to a special case. 
 Judgment was given for the plaintiff in respect only of the diversion of 
 the river Yeo, and for the defendant on the alleged causes of action, 
 which related to the diversion of a stream called the Back Water, and 
 the obstruction and diversion of the Silver Lake spring. The iDlaintifi" 
 had immemorially enjoyed the benefit of irrigating certain of his 
 meadows with the water of the river Yeo, subject to the right of the 
 miller at "West Mill to detain the water for the use of his mill. The 
 natural flow of the river was prevented by the exercise of the miller's 
 right, but the water was allowed to come down at such times that the 
 jilaintiflF was enabled to in-igate his meadows effectually. The defendant 
 liad, for the purpose of irrigating his own adjacent land, from time to 
 time diverted the water after it had passed the mill, and before it 
 reached the plaintiff's meadows ; and although it did not appear that 
 the water which ultimately reached the meadows was sensibly dimi- 
 nished in quantity, yet the effect was that the water was detained by the 
 process of irrigation, and did not arrive until so late in the day that 
 the plaintiff was deprived of the power to use it fully. The water 
 was penned every night at West Mill ; and when the defendant was not 
 watering his new water-mead, the water generally came down to the 
 ].laintiff's Wyke farm about twelve at noon, and six or seven acres of 
 the plaintiff's water-meads could be watered at a time; but when the 
 defendant was watering his new water-mead the water did not come to 
 the plaintiff's farm until about three o'clock in the afternoon, and then
 
 BY DIVEETING STREAM. 195 
 
 only three or fonr acres of tlie plaintiff's water-moads could be watered 
 at a time ; and in winter it was often dark, and therefore too tate to jnit 
 the water over the plaintlfTs meads at all. 
 
 There was evidence that in consequence of the defendant's watering 
 his new water-mead in the autumn and winter of 1854 the plaintiff's 
 tenants could only water some of their meads, and lost some spring feed 
 of the mead ; but there was also evidence on the part of the defendant 
 that the hay crop in the Dairyman's Mead was as good as ever; and it 
 was an admitted fact that the defendant irrigated his land properly 
 without excess or unnecessary waste, and that the mill and wheel were 
 used for agricultural purposes, for threshing, and grinding barley, for 
 the purposes of the defendant's farm only ; and if right existed, there 
 was no abuse or excess. The injury to the plaintiff's reversionary in- 
 terest in his ancient water meadows was stated to be that they were 
 deprived of the first catch or use of the water, the fertilizing sediments 
 or properties of whicli were deposited on the defendant's new water- 
 mead ; secondly, that as such new water-mead was very porous upper 
 soil, consisting of a layer of gravel and a subsoil of clay, the whole of 
 the river was insufficient, except in a flood, to water even the plaintiff's 
 ancient meadows ; thirdly, that it was penned on this new water-mead 
 so late, that plaintiff's tenants could not watch and attend to the 
 watering of the ancient meadows, as they were prevented by the pen- 
 ning of the water at the West Mill from using it at night. A verdict 
 was taken for the plaintiff for .£200 damages, subject to a special case. 
 
 Cresswell J. said, in delivering the judgment of the Court, " that 
 all persons having lands on the margin of a flowing stream have 
 by nature certain rights to use the water of that stream, whether 
 they exercise those rights or not, and that they may begin to exercise 
 them whenever they will. By usage they may acquire a right to use 
 the water in a manner not justified by their natural rights ; but such 
 acquired right has no operation against the natural rights of a land- 
 owner higher up the stream, unless the user by which it was acquired 
 affects the use that he himself has made of the stream or his power to 
 use it, so as to raise the presumption of a grant, and so render the 
 tenement above a servient tenement. If the user of the stream by the 
 plaintiff for irrigation was merely an exercise of his natural right, such 
 user, however long continued, could not render the defendant's tene- 
 ment a servient tenement, or in any way affect the natural rights of the 
 defendant to use the water. If the user by the plaintiff was larger than 
 his natural rights would justify, still there is no evidence of its affect- 
 ing the defendant's tenement, or the natural use of the water by the 
 defendant, so as to render it a servient tenement. But if the user by 
 
 o 2
 
 ]U0 WATER ESCAnXG INTO A MTXE FROM RAILWAY CUTTINGS. 
 
 ihe defendant has boen beyond his natural riglit, it matters not how 
 much the phiintill" lias used the water, or whether he has used it at all. 
 In either case his right has been equally invaded, and the action is 
 maintainable. 
 
 " The question between the parties is thus reduced to this single 
 point — has the defendant used the water as any riparian proprietor 
 may use it, or has he gone beyond that ? The general principle 
 of law may be deduced from the decision of Embrey v. Owen; and 
 the authorities cited by Parlce B., in delivering judgment in that 
 case, is that every proprietor of lands on the banks of a natural stream 
 has the right to use the water, provided he so uses it as not to 
 wo7'k any material injury to the rights of other proprietors above or 
 below on the stream. In the present case it appears to us, on the 
 evidence, that the detention by the defendant, under the circumstances, 
 of the water of the river Yeo, for the purposes of irrigation, was a use 
 of it which in its character was necessarily injurious to the natural 
 rights of the plaintiff as the proprietor of land lower down the stream. 
 The effect was obviously the same as if the defendant had placed a bar 
 or weir across the river, and by that means had wholly prevented its 
 natural course for a certain number of hours. And it appears to us 
 that there is neither authority nor principle for contending that such an 
 act can be justified on the ground that it was done for improving the 
 adjacent land of the defendant, whether by irrigation or otherwise." 
 The judgment of the Court of Common Pleas was finally entered for 
 the plaintiff, as to such part of his complaint as related to the river 
 Yeo, and as to the rest of the alleged causes of action, for the de- 
 fendant (26 L. J. C. P. 148). 
 
 Water escaping from railivaij-cuttings into a mine. — A railway company 
 is responsible for injuries sustained by reason of water escaping from a 
 stream in flood-time, or collected from rain falling on the railway, and 
 flowing along a cutting of the railway, and percolating through the 
 substratum into mines beneath, although such mines had not been 
 worked at the time of the formation of the railway ; and such damage 
 is the subject of an action, and not the subject of compensation under 
 the compensation clauses {Bagnell v. London and Norlh-Western Rail- 
 tvag Company). 
 
 WorJcing mines under water-course. — The owner of freehold lands 
 and his lessee will be restrained from working mines under a water- 
 course, otherwise than in a manner not likely to prevent the plaintiff 
 from enjoying an uninterrupted flow of water to his works {Elwell v. 
 Croictluir). 
 
 Siq'jjtying horses ivith water from a imltic fountain. — A local board of
 
 SUPPLYING HORSES WITH WATER FROM PUBLIC FOUNTAIN. 107 
 
 health, empowered by their private act to supply a town with water at 
 certain rates, supplied an ornamental fountain (which had been pre- 
 sented to the town by one of the inhabitants, and erected in one of the 
 public streets) with water for the use of cattle in the cattle market on 
 market days, and for horses, if yol^ed, ivhen jiasshig to and fro. The 
 board had a fixed charge per horse for water supplied to persons keep- 
 ing horses, who might choose to have water laid into their stables. 
 The respondent, in order to evade payment of this charge, took his 
 horses from his stahte to the fountain to drink. Upon a complaint 
 against him for so doing, under the Water Works Clauses Act, 1847, 
 sec. 59, which enacts that "every person who, not having agreed to be 
 supplied with water by the undertakers, shall take any water from any 
 place containing water belonging to the undertakers other than such 
 as may have been provided for the gratuitous use of the public, shall 
 forfeit," &c. ; the magistrates being of opinion that the local board 
 had no power to erect a fountain in the public highway except for the 
 gratuitous use of the public, and that therefore the water supplied to 
 such fountains came within the exception in the above clause, refused 
 to convict. It was held by the Court of Common Pleas that the deci- 
 sion of the magistrate was -RTong ; for that, whether the fountain were 
 a public nuisance or not, the board were at liberty to supply it with 
 water on their own conditions. And per WiUiams J. : " It is clear, 
 upon the facts here, that there was no unrestricted dedication to the 
 public at large, and nothing in the act of parliament to work that result. 
 Though there may be a dedication for a limited purpose to all, there 
 cannot be a dedication to a limited part of the public on the principle 
 which is established in Poole v. Huskisson (11 M. & W. 827), and The 
 Marquis of Stafford v. Coyney ( 7 B. & 0. 257). The consequence is 
 not that a partial dedication will operate as a dedication to all the 
 public, but such dedication is simply void, and no dedication at all. 
 And 2)er ByJes B. : "I am not sure that the use for which this watei' 
 is supplied was not a public use. Anybody's cattle and yoke-horses 
 may drink at it ; and though the time at which the fountain may be 
 used, and the class of cattle and horses, which may use it are limited, 
 it is not the less for the use of all the public (see Rex v. Berenger, 3 M. 
 & S. 73). But that by no means justifies the respondent in using the 
 water for other purposes than those to which the use is limited {Hildrcth 
 appt. V. Adamson resp.)— 30 L. J. (N. S.), M. C, 204. 
 
 Conveyance of right of continuance of culvert with farm — By permis- 
 sion of the tenant for life of farms A and B, the defendant many years 
 ago made a culvert from a brook, which in its natural course flowed to 
 farm A for the purpose of getting water for his own premises, and
 
 198 USE OF CULVEUT. 
 
 for farm B. The culvert wliicli carried off nearly all the water from 
 the brook, conuuenced in some lands of the del'endant, which were 
 bounded by the brook, and then passed through farm B, where a 
 portion of the water was drawn out of it by means of a small pipe for 
 the use of farm B. The rest of the water, viz., the larger portion, 
 flowed on down the culvert, which, after traversing farm B, ended in 
 other premises of the defendant, where the water was consumed. In 
 September, 185G, the then owners of farms A and B conveyed farm B, 
 in fee to the defendant, together with all waters and water courses ap- 
 pertaining to the premises or used, occupied, or enjoyed with the same. 
 He afterwards conveyed farm A to the plaintiff, with all waters and 
 water courses. It was held in the Exchequer Chamber affirming the 
 judgment of the Queen's Bench, that as against the owner of farm A 
 the words of the conveyance of farm B were sufficient to convey to the 
 defendant the right to the continuance of the culvert and to the accus- 
 tomed flow of water down it, and that his right was not limited to the 
 taking so much of the water as had heretofore been used for the purposes 
 of farm B {WardJe v. Broddchurst). 
 
 Cotidition under tchich tenant for life received compensation for loss 
 of po7id u'hich tvorJced Ms mill. — A pond which supplied a stream by 
 which a flour-mill was worked, was purchased by the Ordnance under 
 the Defence Act, 1842. Tlie water being diverted, the tenant for life 
 of the mill claimed compensation ; and before an award was made, he 
 erected a steam engine and suitable buildings for the mill, expending 
 thereon £1,300. Compensation amounting to £920 being awarded to 
 him, the Court of Appeal, on a question from the Master of the Bolls, 
 permitted this sum to be paid to the tenant for life, upon the under- 
 standing that the erection of the steam engine and buildings was of a 
 substantial and permanent nature {1)1 re Duke of Wellington's Settled 
 Estates Ad).
 
 SUNDAY HIRING, 199 
 
 CHAPTER VII. 
 
 SERVANTS. 
 
 A CONTRACT of hiring made on a Sunday between a farmer and a 
 labourer for a year, is not " business or work of their ordinary calling " 
 within 29 Gar. II. c. 7, s. 1, and is therefore valid {Rex v. Inhabitants 
 of Whitnash). A contract of hmng may be qualified Ivj proof of cus- 
 tomary Jiolidaijs {Reg. Y. Stoke-on-Trent); and proof that the plaintiff 
 and other workmen employed by the defendant came regularly to receive 
 their wages from the defendant, whose practice was to pay every week, 
 and that the plaintiff had not ieen heard to comjylain of non-pagment, u 
 presumptive evidence of payment {Sellen v. Norman, and see Lucas v. 
 Novosilieslci). 
 
 In Cuclison v. Stones, the Court of Queen's Bench decided that to a 
 claim for wages on an agreement to serve the defendant during a cer- 
 tain period at a certain weekly sum, it is no answer tluit the plaintiff 
 was absent from the service of the defendant during the period in respegt 
 of which the wages are claimed by reason of temporary illness. And 
 per Curiam : " We think that want of ability to serve for a week 
 would not of necessity be an answer to a claim for a week's wages. In 
 truth, the plaintiff was here ready and willing to serve had he been 
 well, and able to do so, and was only prevented serving during the 
 week by the visitation of Grod, the contract never having been deter- 
 mined " (ib.). 
 
 Long continued service creates no claim for remuneration without a 
 bargain for it, either express or implied from circumstances, showing an 
 understanding on both sides that there should be payment ; and so it 
 was ruled by Martin B. in Reeve v. Reeve (on the authority of Hin- 
 geston v. Kellg), when the plaintiff had, five years before action, been 
 engaged by his nephew, the defendant, to look after his farm, and to 
 have board, lodging and clothing. The case for the plaintiff (for 
 whom the jury found), was that there was a further bargain for wages 
 at four shillings a-week, but this the defendant denied. A new trial 
 was granted on the ground that the evidence was not suiUcient as to 
 a bar2;aiu for wages.
 
 ^:00 GEXEKAL HIRING OF AGraCCLTUEAL LABOURER. 
 
 If a i/enrJy servant irro)i(/fi/I!// r/uif, or le dismissed Inj his master, le- 
 fore the year expires, for such miscouduct as will justify the dismissal, 
 the servant is not entitled to any wages for the time during which he 
 served ('ranter v. Euhinson). The general rule is, that // a master 
 hire a servant without mentioning the time, that is a general hiring, 
 and in point of law a hiring for one whole year ; and a stipulation that 
 there is to be an advance of so much per annum, till the wages reach 
 a certain amount, does not make it the less a contract for a year. In 
 the case of domestic servants, the rule is well established that the 
 contract may be determined by a month's notice or a month's wages, 
 but that depends upon custom. Where no such custom is proved, the 
 contract must be taken to be one for a year {Fmvcett v. Cash). 
 
 A general hiring in the case of an agricultural labourer means, in 
 
 law, a hiring for a year ; and therefore the plaintiff in Lit teg v. El win 
 
 failed on his first count, which alleged a special contract of hiring, 
 
 determinable at any time by reasonable notice on either side, and was 
 
 only supported by proof of a general hiring as to time. And he could 
 
 not recover for the time of his actual service on the indehitatus count, 
 
 as he was bound to give a whole year's service before earning any 
 
 wages, and he broke his contract by leaving that service before the 
 
 year's end. In this case nothing was said as to notice of determining 
 
 the engagement. The defendant, a farmer, hired the plaintiff as a 
 
 waggoner for ten guineas a-year, payable at its expiration. During 
 
 the harvest, he worked in the field generally, and the Court thought 
 
 it must be taken as part of his contract that he should do so. At 
 
 that time of the year the practice was to work till eight o'clock in the 
 
 evening ; but he refused to work to that hour, not as being an 
 
 unreasonable hour, or as not being within the terms of his contract, 
 
 but because strong beer of good quality was not allowed to him, 
 
 according to a custom which he alleged to exist ; the beer supplied 
 
 being, as he contended, very bad, and not so good as water. Coleridge 
 
 J. said : " If the discharge was not justifiable, then the plaintiff' was 
 
 at liberty to treat that discharge as a rescinding of the contract by 
 
 the defendant, and to adopt that rescinding, and sue for wages pro 
 
 rata up to the time of the unjustifiable discharge, and so to retain 
 
 his verdict on the indebitatus count. We do not think it necessary to 
 
 go through the authorities which establish this view of the law ; they 
 
 will be found collected in Mr. Smith's leading cases in the notes to 
 
 Cutter v. Povell, vol. ii. ca. 1. The discharge in this case was not 
 
 directly by the master, the defendant, but by a magistrate, on the 
 
 statute 4 Geo. IV. c. M, on the complaint of the master. But we 
 
 are of opuiion that it is sufficiently the act of the defendant to entitle
 
 HUNTSMAN A SERVANT. 201 
 
 liini to a Ycrdicfc on the third plea (which stated a discharge by the 
 defendaut, for disobedience of orders, in not working during liarvcst 
 till eight o'clock at night), supposing the alleged misconduct of the 
 plaintiff to be established ; and also to entitle him to a verdict on 
 the plea of non assumpsit to the indehitahis count, on tlie like su})p()- 
 sition, because in that case he was never indebted to the plaintiff 
 at all" (11 Q. B. 742). 
 
 By sec. 3 of the statute, the magistrates have no jurisdiction to dis- 
 charge, unless it shall appear to them that the servant " shall not have 
 fulfilled such contract, or hath been guilty of any other misconduct 
 or misdemeanour." Thcg may issue tvarrants to apprehend servants in 
 husbandry, &c., not entering into service according to their contract, 
 or absenting themselves from it, on complaint by oath, and commit 
 them to the House of Correction for three months' hard labour, or in 
 lieu thereof abate the whole or part of the wages, or discharge the 
 servant. And it was decided by the Court of Queen's Bench, and 
 subsequently by the Court of Exchequer (Potlucic C.B. diss, and 
 Martin B. dut?.), that where a party is convicted by a justice of the 
 peace, under this section, for absenting himself from his master's 
 service, the contract is not dissolved ; and if, after the expiration of 
 that term, he refuses to return to the service, he may be brought up 
 before the justices and convicted a second time (Ex jjarte W. BaJcer). 
 So, by sec. 5, they may order payment of wages due to servants within 
 such time as they may think fit, on complaint made pursuant to 20 
 Geo. 11. c. 19, and 31 Geo. II. c. 11, which apply to servants in hus- 
 bandry hired for less than a year. 
 
 A conviction under the Masters' and Servants' Act, 4 Geo. IV. c. 34, s. 3, 
 must state on the face of it an offence within the act, and the facts alleged 
 must not be consistent with the innocence of the person charged, other- 
 wise the conviction cannot be supported. And this is so, even since 
 the passing of Jervis's Act, 11 & 12 Vict. c. 43, which gives in sec. 17 a 
 general form of conviction applicable to all cases {Ex parte Gessivood). 
 
 A huntsman, though hired at yearly wages with the right to receive 
 certain perquisites, is a menial servant, and subject to dismissal at a 
 month's notice, NicoU v. Greaves, 33 L. J. N. S. C. P. 259. 
 
 A u'cirrant of commitment issued under 4 Geo. IV. c. 34, s. 3, was held 
 to be bad by Wightman J., for not stating that the contract was in 
 writing, or that the servant had entered into the service {In re J. Askew) 
 on the authority of Lindsay v. Leigh, which was decided in the Ex- 
 chequer Chamber, and where the warrant was under the same section, 
 and almost in the same words as in this case. iVo right of appecil to the 
 Quarter Sessions exists against an order of justices made under sec. 5 of
 
 2U:J EEFUSAL BY SERVANT TO OBEY ORDEBS. 
 
 this Act, for the payment of an amount of weekly wages adjudged to be 
 due from a master to his servant, on a complaint under 20 Geo. II. c. It), 
 although the justices in making such order may have acted without 
 jurisdiction {Beg. v. Bcdwell). In ex parte Hughes, it was decided that 
 t tea Justices niiglit make an order on the master for j^ayment of a year's 
 wages to a dairgmakl, as being a servant in husbandry, under 20 Geo. II. 
 c. 19. Mary Hughes was hired in the above capacity to serve for a year, 
 and to assist in the harvesting of the hay and corn if required. She had 
 also to keep the house,and to cook for the men-servants and labourers, 
 and to make their beds; and when the master, and sometimes his family, 
 visited the farm, which he did weekly, she cooked for and attended upon 
 them. Wigldmau J. : " Suppose it were exclusively a dairy farm, would 
 you say there was no servant in husbandry em23loyed upon it ? " And. 
 jw Lord Campbell C.J. : " She was employed with a view to the dis- 
 charge of duties connected with husbandry, and the domestic duties 
 performed by her were ancillary to those she was employed to discharge, 
 A servant in hus])andry may serve iutra mania.''' 
 
 Spain V. Arnott was an earlier case of the same class as Lilog v. Elwin. 
 The plaintiff was a yearly servant to a farmer, and usually breakfasted 
 at five and dined at two. One day, when dinner was ready, he was 
 ordered, to go to the Marsh, which was a mile off, with the horses. He 
 said he had done his due, and would not go without his dinner, and was 
 sent about his business for the refusal. Lord EUenhoroitgh C.J. ruled 
 that, if the contract ivas for a yeafs service, the year must he completed 
 before the servant is entitled to be paid. If the j^laintiff persisted in 
 refusing to obey orders, he was warranted in turning him away. He 
 might have obtained relief by applying to a magistrate, but he was not 
 bound to pursue that course ; the relation between master and servant, 
 and the laws by which that relation is regulated, existed long before 
 the statute. There is no contract between the parties except that which 
 the law makes for them ; and it may be hard on the servant, but it 
 would be exceedingly inconvenient if the servant were to be permitted 
 to set himself up to control his master in his domestic regulations. A 
 juror was afterwards withdrawn by consent. It was also ruled by the 
 Court of Queen's Bench, in Turner v. Robinson, in which Spctin v. Arnott 
 was cited, that where the^w/w^a facie presum})tion was that the plaintiff 
 was hired for a year, and there was nothing to rebut that presumption, 
 if he violated his duty Ix-foi'c the year expired, so as to i»revent the 
 defendant from having his services for the whole year, he cannot recover 
 wages ^?ro rata. 
 
 The Court of Common Pleas also, in Ilarmvr v. Cornelius, 28 L. J. 
 C. P. 85 (where it was decided that if a skilled person undeilakc a
 
 DISMISSAL OF SEIIVAXT. 203 
 
 service wliicli requires the exercise of such skill, there is an implie;! 
 warranty on his part that he jwssesses the sJcill reqtmite to jjeiform the 
 task, and if he does not his employer may dismiss him before the expira- 
 tion of the period for which he was engaged, without incurring responsi- 
 bility) remarked m reference to Sjmiti v. Arnoft, " It appears to us that 
 there is no material difference between a servant who will not and a 
 servant who cannot perform the duty for which he was hired." FarkeJ. 
 laid down, in CalJoiv v. Brounclcer, that to justify a masfe?^ in dis^rmshuj 
 a yearly servant before the expiration of the year, there must be on tlie 
 part of the servant either moral misconduct, pecuniary or otherwise, 
 wilful disobedience, or habitual negligence ; aud^xr Lord Kenyan C.J., 
 in Robinson v. Hindman, that a servant being frequently absent when 
 his master wanted him, and often sleeping out at night, would warrant 
 an instant dismissal. Where, as in Specie v. Phillips, the defendant's 
 counsel offered to prove that the defendant had discharged the plaintiff 
 for drunkenness, it was decided by the Court of Exchequer that the 
 defendant could not give evidence, in mitigation of damages, of circum- 
 stances which if pleaded would have been a bar to the action, more 
 especially where money is paid into Court. 
 
 Where an action was brought for a wrongful dismissal of a servant, 
 who was hired under a written agreement at a yearly salary, and a 
 custom to terminate the agreement at a month's notice was pleaded, 
 the jury found that the custom existed but did not apply to the special 
 terms of the contract (or, as Byles J. observed, " in effect found a 
 limited custom "), and it was held by the Court of Common Pleas that 
 it was for the Court to look at the contract, and to see if the custom as 
 found was excluded by it [ParJcer v. Ibbetsoyi). By the agreement here 
 the plaintiff was to serve the defendant as agent at a yearly salary, with 
 a proviso that the defendant would at the end of the year, if he found 
 the plaintiff' had done sufficient business, give him £30 more ; and the 
 Court considered that there was nothing in this agreement inconsistent 
 with a custom in the trade, to terminate the service by either party 
 giving the other a month's notice. And sembleper Willes J. : "A stipula- 
 tion for a do?iation to the servant at the end of the year, under certain 
 circumstances, contained in a written agreement for a yearly hiring, does 
 not exclude either party from setting up a custom to terminate the 
 agreement at a month's notice" (ib.) (27 L. J. C. P. 236). 
 
 A contract for service for more tluin a year, but subject to determination 
 within the j^ear on a given event, is within the 4th section of the Statute 
 of Frauds, and must therefore be in writiny {Dobson v. Collis). The 
 Court thought that Birch v. Earl of Liverpool which is an authority to 
 show that a contract, which by its general terms is not to be performed
 
 201 HIllIXG BY PAEOL. 
 
 within the year, is not taken out of the statute, because it may be 
 Jct'eated on a given event, was exactly in point. And^^rv Aldcrson B.: 
 '' Tlie Tery circumstance that tlie contract exceeds the year brings it 
 within the statute. If it were not so, contracts for any number of years 
 might be made by parol, provided they contain a defeasance, which 
 might come into operation before the end of the first year. The reason 
 for the enactment was tliat there might be no dispute beyond the year as 
 to the terms of the contract. Bccston v. Colhjer was the case of a yearly 
 hiring. There was a contract to be performed within the year, and that 
 might lead to another, which the parties might or might not make for a 
 year. If they did enter into it after the first or any subsequent year, 
 it was a fresh contract ; but when once the contract exceeds the year, 
 the circumstance that it is defeasible will not make it other than a 
 contract for more than a year. See the absurdity of holding otherwise : 
 at the end of two years and a-half, one of the parties might claim a 
 right to put an end to a parol contract for five years, by giving three 
 months' notice ; but the very dispute might be whether or not he had a 
 right to give such notice. That shows that this is a contract within the 
 statute." 
 
 In the case oi Banks v. Crossland, 10 L. E. Q. B. 97, by parol hiring 
 on the 11th Xovember, respondent agreed to serve appellant for one year 
 from November 23rd. Respondent did not enter his service, and an 
 information was taken out under 30 & 31 Vict. c. 141, by s. 3 of which 
 nothing in this Act shall apply to any contract of service other than a 
 contract within the meaning of the enactment of the first schedule of 
 tills Act, or some or one of them. By 4 Geo. IV. c. 34, s. 3 (which is in 
 the schedule), proceedings can be taken against a servant in husbandry 
 who has not entered into his service, only if the contract be in writing 
 signed by the parties to it. Held that no proceedings could be taken 
 against respondent under the Act 1867; also that as the contract was 
 not to be performed witliin the year, and was not in writing ; section 4 
 of the Statute of Frauds would have prevented the enforcing the 
 contract. 
 
 By a parol agreement the defendant in Collis v. Botthamley agreed 
 with the plaintiir to serve him for a year from a future day, and that 
 the service thenceforth should continue subject to be determined by 
 three months' notice. After the expiration of the year the defendant 
 quitted the plaintiff's service without notice, and the Court of Exchequer 
 held that the jtlaintiff' might maintain an action for this breach of their 
 agreement, notwithstanding the Statute of Frauds. And ^mr Watson B. : 
 *' After the exjiiration of the year a fresh contract arose." 
 
 "Where A on July 20th made proposals in writing (unsigned) to B to
 
 JDRISDICTIOX OF MAGISTRATES AS TO BATLTFFS. 205 
 
 enter his service as bailiff for a year, and B took tlio proposals and went 
 away, and entered into A's service on July 24th, it was held by the 
 Court of Exchequer that this was a contract on the 20th not to be 
 performed within a year from the making thereof, and within the 4th 
 section of the Statute of Frauds {SnelJimj v. Lord Himtinij field). 
 
 A servant in husbandry being hired for a quarter of a year, entered 
 the service and was discharged before the end of the quarter ; she 
 immediately sued her master in the County Court fur discharging- her 
 without reasonable cause, and a verdict was given for the defendant. 
 After the quarter had elapsed, she took out a summons before justices 
 against the defendant to recover tiie quarter's wages. It was held that 
 the question to be decided was essentially the same in the two courts, 
 viz., whether the discharge was wrongful, and that the decision in the 
 County Court was conclusive between the parties. And^j^r CocJrhurn C.J. : 
 " It was admitted, and, indeed, could not be denied successfully, that 
 the question raised by the plaint and particulars in the one case, and 
 the complaint on oath in the other was the same, viz., whether the dis- 
 charge of the respondent was without just cause. Varying the form of 
 claim, where the claim itself is the same, does not prevent the application 
 of the rule of law to which reference has been made " {RoutUdge appt, v. 
 Hislop resp). 
 
 Jurisdiction of magistrates does not extend to haiJiffs. — A person engao-ed 
 by the owner of a farm from year to year, subject to a month's notice, 
 and at a salary of 25s. per week, to keep the general accounts belonging 
 to such farm, to weigh out the food for the cattle, to set the men to 
 work, to lend a hand to anything if wanted, and in all things to carry 
 out the orders given to him, is not a servant in husbandry within the 
 section 3 of Geo. IV. c. 34, so as to be liable to conviction under that 
 section for refusing to obey an order given to him by the owner of the 
 farm. The appellant had thrown back a paper at the agent, declaring 
 that he would not give information respecting the herd of Herefords at 
 Cronkhill until a notice which had appeared in the Shrewsbury papers 
 that the appellant was not authorised to receive money on behalf of the 
 defendant was cleared up. The appellant had certain information 
 requisite for identifying the calves, &c., partly in a book and partly in 
 his head ; but^jer Curiam, Cronipton J., and Hill J., "The provisions in 
 the act apply to persons engaged in manual work, whereas the appellant 
 here was rather a steward or bailiff. The principal thing which he had 
 to do, besides setting the men to work and weighing out the food for the 
 cattle, was to keep the general accounts, and although he was also to make 
 himself generally useful that was only accessory to his principal work. 
 If we held that he was a servant in husbandry, so as to be liable to be
 
 •2 Of) MOXTRLY SERVAXTS. 
 
 convictetl in this way, ■wc sliould have to look into the other question, 
 as to whetlier he had been guilty of misconduct ; but that is unnecessary, 
 as we think he was not a servant in husbandry within the act of parlia- 
 ment" {Daries appt. v. Baron BcrwkJc resp.). 
 
 Bond Jide helief of servant tliat he may quit his ])lace. — Although if a 
 servant leaves his employment, or refuses to perform his own contract 
 under a hond fide belief that he has a right to do so, he cannot be con- 
 victed under the statute ; yet to entitle the servant to judgment on that 
 ground on a case stated for the opinion of the Court, the facts must 
 reasonably show that tiie desertion or neglect complained of was in 
 pursuance of that supposed right, and it is not sufficient that it was 
 merely possible that he acted under it [Willett appt, v. Boote resp.). 
 
 Contracts of service need not he for any specified time to give magistrates 
 jurisdiction. — In order to give justices jurisdiction to hear a complaint 
 as to the non-payment of wages, under the 20 Geo. II. c. 19, s. 1, it is 
 only necessary that the relation of master and servant should exist 
 between the parties, and the contract of service need not le for any sjMcific 
 time (Alice Taylor appt. v. Carr and Porter resps.). 
 
 Recovering a months ivages. — A menial servant, entitled under the 
 hiring to a month's warning or a month's wages, cannot recover a 
 month's wages for having been improperly dismissed without a month's 
 warning on the common indehitatus count for work or labour, but must 
 declare specially. And ^^er Curiam : " The month's wages are to be 
 paid, not for the bygone services, but for the improper dismissal of the 
 servant. Eardtey v. Price (2 N. R. 333) broke in upon the rules of 
 law, perhaps in order to do what happened to be justice in that particular 
 case. Archard v. Hornor (3 C. & P. 349), which was afterwards con- 
 firmed by the Court of Queen's Bench in Smith v. Eayward (7 Ad. & E. 
 544), and also by this court, governs this case. It is not broken in 
 upon by Smith v. Kingsford (3 Scott, 279), which was decided on the 
 ground that there was no dissolution of the contract of hiring. The 
 contract in the present case is that the service is for the year, but the 
 master is at liberty to dismiss the servant by giving her a month's 
 wages or warning." And per Alderson B. : " When we say that the 
 servant is to have a month's warning or a month's wages, it is meant 
 that the payment to be made for the dismissal without warning is to be 
 by way of composition, and that the amount is to be equal to a month's 
 wages " {Fewings v. Tisdal, 1 Exch. 295). 
 
 Gardener only entitled to a month's ivages. — A gardener with £100 a 
 year and house, and two apprentices at £15 a year, is still only a menial 
 servant, and entitled, even after four years' service, to only a month's 
 warning. And per Abingcr O.B., though he did not live in the house,
 
 CO^'TEACTOE NOT WTTIITN STATUTE. 207 
 
 or wiHiiii tlie ciiriilage, he lived in tlie grounds on the domain {Noirlan 
 X. Ahlcit, 2 C. M. & R. 54). 
 
 No contract for services. — Where services have been rendered witliout 
 any express contract for wages, bnt with board and lodging and other 
 benefits (here to keep fowls, bees, &c., for her profit, altliongh she paid 
 for their food herself), it was ruled by Martin B. that a contract to pay 
 for such service is not to be implied {Foord y. MorJey). 
 
 It is specially provided for by section 20 of the Truch Act, stat. 1 & 2 
 Will. IV. c. 37, that it shall not extend to any domestic servant or 
 servants in husbandry. 
 
 It was held by the Exchequer Chamber, in affirmance of the decision 
 of Lord Camphell C.J. and Coleridge J. {Erie J. diss.), that a labourer or 
 artificer ivlio enters into a contract to do certain work (as hriclc-making) at 
 so much per foot, or p)&r thousand, or tJie like, under which co?itract M maij 
 get the work done hj other persons, and is not bound to bestow his own 
 personal labour, is not within the protection of the statute, so as to 
 defeat a set-off for goods supplied at a shop in which the employer is 
 interested, in part payment of the wages or money so to be paid under 
 the contract {Ingram v. Barnes). Cressivell J. said : " I ground my 
 judgment on this : that if this were res integra, I should be convinced 
 that the statute applied only to cases where, by the contract, personal 
 service was to be given for wages. That was the view taken in all the 
 cases up to this. It was so held in Rileg v. Warden. In Sharman v. 
 Sanders the judges did not, as my brother Erie seems to suppose, 
 proceed merely in deference to the authority of Riley v. Warden. Each 
 judge expressed his full approbation of that decision. The Chief 
 justice did so ; my brother Maule puts it very clearly ; and I also 
 expressed my concurrence m it. In Bowers v. Lovekin I find the same 
 doctrine acted upon. The ground of the decision upholding the judg- 
 ment of the County Court was, as stated by Lord Camphell C.J. in his 
 judgment, that ' it is found as a fact that the defendants were bound to 
 give their personal labour hke any other workman. It was an oral 
 contract; and the County Court judge found that such was the contract; 
 and on his finding the judgment proceeded. I think the judgment 
 below right, and the doubt expressed unfounded.' " And per Channel B. : 
 " The case seems to me not to be distinguishable from Rileg v. Warden 
 and Sharman v. Sanders. But I do not rest wholly on that ground, for 
 I entirely concur in the spirit of those decisions with respect to Boivers 
 V. Lovekin and Weaver v. Llogd ; all I think it necessary to say is, that 
 our decision does not clash with them." The decision in Rilcg v. 
 Warden was to the eflFect that a person who takes a contract to execute 
 a certain cutting on a railway, at a certain sum per cubit yard, and
 
 208 SETTLEMENT BY HTRING AXD SEEVICE. 
 
 employs several men under him to assist in doino- the work, is nof a 
 workman or labotirer within the tiue meaning of 1 & 2 WiU. IV. c. 37, 
 although he does a portion of the work himself. 
 
 ^' If any portion of the year, Iwirover short, is excepted, during which the 
 servant is not under his master's control, whether that exception be express 
 or by necessary implication fi'om the terms used, th^ hiring cannot lie 
 considered a hiring for a year so as to confer a settlement, although tlie 
 contract be for a year's service, subject to such exceptions ; thus where 
 a man was hired for a year, with liberty to let himself for the harvest 
 month to anyother person (Eex v. Bishop Hatjield, Rex v. Atthorne), it 
 was held that he could not gain a settlement by service under such a 
 hiring ; so where the servant agreed for liberty to be absent eleven days 
 during the sheep-shearing season (Rex v. Empingham), or during the 
 sheep-shearing season {Rex v. Arlington), or to work shearman's hours 
 and to be at liberty at all other times {Rex v. Buckland Denltam) ; or 
 as a colt shearman, to work twelve hours each day {Rex v. North JVibley); 
 or where the hiring was for a year from Michaelmas, to go away a month 
 at harvest, and make up the time after Michaelmas {Rex v. Turveg)." 
 And again : " Where the only circumstance from which the intended 
 duration of a contract of hiring and service can be inferred is the reser- 
 vation of wages weekly, it must be taken to be a weekly hiring, as 
 where a servant in husbandry was to serve for the weekly wages of 4s., 
 board, washing, and lodging, except in the harvest month, when his 
 wages were to be increased to 10s. 6d. per week, and then again reduced 
 to 4s. {R£x V. Dodderhill) ; or where the hiring was at 8s. a week, and 2 
 guineas for the harvest, to do anything the gardener should set him 
 about (Rex \. Lamheih) ; or when a gardener having asked £20 a year, 
 his master refused that, but agreed to give him so much a week (Rex v. 
 Warminster)." But if there is anything in the contract of hiring to 
 fihow that it was intended to be for a year, the reservation of weekly 
 wages will not control it. (See also Rex v. Birdhrook, Rex v. Hampreston, 
 Rex V. Great Yarnioidh, and Rex v. Pershore, and other cases collected 
 in ]\Ir. Manley Smith's "Law of Master and Servant," pp. 44-47). 
 
 "Where defendant agreed to take plaintiff, a shepherd, into his service 
 for 50s. and his board and lodging for five weeks, next ensuing after 
 the 28th February, but afterwards refused to let him enter his service, 
 ])laintiff' recovered £5 damages for such breach of contract (Clark v. 
 Allatt). 
 
 It was left by Parke B. to the jury in Louth v. Drummond, at King- 
 ston Spring Assizes, to say wluit notice a farm haiJiff was entitled to ; 
 and they said that the master was not justified in giving only a monDCs 
 notice, and gave a verdict for a year's wages. In Bulling v. Ellice,
 
 NOTICE TO FARM BAILIFF. 209 
 
 Knight Bruce V.C. held that a farm bailiff ^Yho had lived 28 years wilh 
 the Earl of Leicester at £350 a year, living on the home farm within 
 the park rent-free, the earl paying all rates and taxes, and who was 
 allowed keep for a cow and horse, and to take pnpils in agriculture, was 
 a servant who might receive a legacy within the meaning of the will. 
 And so may a gardener and under-gardener, in the exclusive employ- 
 ment of the testator, at weekly wages, but living at their own houses 
 (Thn/pj) V. CoUeft). The bailiff cannot be considered as the em^jJoyer of 
 the labourers on his master's own farm, within the sense of the words 
 in stat. 20 Geo. II. c. 19, s. 2, though the contract of hiring was made 
 by the bailiff personally ; and hence it was held in Rex v. Hoseason to 
 be a most abusive interpretation of the law for a magistrate to sentence 
 one of the servants on his own farm to be " corrected and kept to hard 
 labour for one calendar month" on a complaint referred to him in his 
 judicial character by his bailiff. 
 
 Reg. V. WortJeij turned upon the point as to whether a farm bailiff, 
 according to the terms of his agreement, ivas a servant or a 'partner. Here 
 the defendant was engaged to "take charge of the glebe land of the 
 Eev. J. B. Clarke, his wife undertaking the dairy, and poultry, &c., at 
 15s. a week till Michaelmas, 1850, and afterwards at a salary of £25 a 
 year and a third of the clear annual profit after all expenses of rent and 
 rates, labour, and interest on capital, &c., are paid on a fair valua- 
 tion made from Michaelmas to Michaelmas. Three months' notice on 
 either side to be given, at the expiration of which time the cottage to 
 be vacated by Samuel Wortley, who occupies it as bailiff, in addition 
 to his salary." It was held that the defendant w^as a servant, and not a 
 partner. He was not, however, a menial servant, but a labourer ; and 
 the agreement was admissible in evidence, though unstamped, as it fell 
 within the exemption in the Stamp Act as an agreement for the hire of 
 a labourer. And p)er Lord Campletl C.J. : " I see no reason for con- 
 fining the meaning of the word ' labourer ' to a mere hedger and ditcher." 
 Contracts to serve as artificers, clerks, servants either domestic or in 
 husbandry, handicraftsmen, mechanics, gardeners, or labourers are ex- 
 empted by sec. 21 of stat. 17 & 18 Vict. c. 83. 
 
 The lailiff' of a farming cstaUishment, through whose hands all pay- 
 ments and receipts pass, has no implied authority to pledge the credit of 
 his employer hy drawing and indorsing bills of excJmnge in the name of 
 the latter. Nor in the absence of nil direct evidence of authority does 
 the nature of the employment of such a bailiff furnish any ground for 
 inferring the existence of such an authority upon slight or on any other 
 than clear and distinct evidence of assent or acquiescence {Davidson v. 
 Stanteg). And p)er Tindat C.J. : " If bankers could recover on such a
 
 210 BAILIFFS POWER TO BI^^D MASTER. 
 
 state of facts as this, every farm agent might pledge the credit of his 
 employer to an indefinite extent. Here there was no direct authority; 
 and the case of Murmij v. The East India Oonipani/ establishes that a 
 (jcncral authority to receive and pay does not authorise the agent to 
 indorse bills of exchange. Here it was never shown that the defendant 
 knew or had the means of knowing that his name was used in the 
 manner in Avhich it was used by the bailiff" {ih.). 
 
 Lord Denman C.J. thus laid down the law in Truman v. Loder as to 
 a ha ilifrs power to hind his master hij his contracts: "Suppose a landed 
 proprietor to send his steward habitually to the neighbouring fairs and 
 markets to make sales and purchases for him in matters connected with 
 the management of his estate ; that the steward makes all these contracts 
 in his own name, but that he is universally known to have no land of 
 his own, and to be acting solely for his employer, and by his direction and 
 on his credit ; could his intention to make himself the owner of articles 
 bought on one particular occasion in the course of the same dealing 
 deprive the vendor of his recourse against the master ? Clearly not." 
 In the case of Tassell v. Cooper, where the plaintiff, the farming bailiff' 
 of Lord De L'Isle (after his employment as such had ceased) received a 
 check of =£1S0 in payment for wheat belonging to his lordship, which 
 he had sold on his own account while acting as bailiff, and paid it in to 
 his own account with B. and Co., his bankers, who received the cash for 
 it, and gave him credit for the amount; but afterwards, under an in- 
 demnity fi'om Lord De L'Isle, refused to honour his drafts ; it was held 
 that even assuming that the check had been improperly obtained by the 
 plaintiff, still, as between him and his bankers, the amount was recover- 
 able by him as money had and received by them to his use, or as money 
 paid. The plaintiff had been in the habit, in 1844-6, of managing Lord 
 De L'Isle's home farm, and receiving large sums from the sale of the 
 produce on his lordship's account, and paid the various charges and ex- 
 penses, and outgoings of the farm as such farm bailiff. He paid into his 
 account with the bank, which was sometimes overdrawn, money received 
 on his lordship's account, along with that of himself and others, without 
 any distinguishing mark. The account and the usual pass-book was 
 kept by the company in his name ; and till the bank received Lord De 
 L'Isle's notice, they had no idea that his lordship had any concern with 
 the plaintiff's account with them, or that the })laintiff was his farm baihff. 
 
 On January 11, 1817, his lordship sent him word, through a third 
 party, that lie was from that time not to deal any more with his pro- 
 l)erty, but to confine his services to giving orders to the men and to 
 seeing that they did their work on the fai'm. On the l!)th, however, of 
 the same month he paid in by check to the Tuul;ridge Branch of the
 
 LIABILITY OF MASTER FOR ACT OF SERVANT. 9A1 
 
 London and County Joint Stock Bank £180 4,s. 8^7., for wheat lie had 
 sold for his lordship in the December jjrcvious ; and on January 28th 
 Lord De L'Isle, on learning that he had an account at the bank, served 
 them with a notice to hold " the balance, £128 Is. lOtl, on credit of 
 the account of Mr. Tasscll, the same being formed of money belonging 
 to me," until further correspondence had taken place ; and the plaintiff's 
 checks were accordingly dishonoured. The Court had no doubt what- 
 ever as to the point that, at all events, after the check was converted 
 into money, the bankers (having no notice at the time they obtained 
 money for it that it was not the property of the plaintiff) were indebted 
 to him as for money had and received to his use, or -money lent, and 
 became liable to account to him for it whenever he chose to call for it ; 
 but they also seemed to consider that it might be very questionable 
 whether the plaintiff might not fairly have understood the intimation to 
 him that he was "not to deal any more with Lord De U Isle's properf//," 
 as prohibiting him from making any more sales, but not from getting 
 in money from persons to whom he had already sold corn, especially as 
 he did not seem to have been asked to render an account of the sales 
 Avhich he had already effected. And see Tindall v. PoiveJl, where a hill 
 for an account against a person who was alleged to have acted as steward 
 to an aged lady up to the date of her decease, was dismissed with costs, 
 there being no circumstances of suspicion against the defendant, and no 
 duty to keep accounts having been undertaken, and the education and 
 capacity of the defendant, as well as the course of dealing between him- 
 self and his employers, being inconsistent with the notion of his keeping 
 regular accounts. 
 
 It was decided in JiPManus v. Criclcett (1 East, 106) that a master is tiot 
 liable in tresimssfor the tvitful act of his servant, as by driving his master's 
 carriage against another without the direction or assent of his master 
 (who was not present) ; but that he is liable to answer for any damage 
 arising to another from the negligence and unskilfulness of his servant 
 acting in his employ. And per Curiam : " For a wilful act ■intrinsically 
 icrong by a servant, the master is not Vuible. By a parity of reason he 
 ought not to be, where the act, not wrong in itself, is only so for reasons 
 l)ersonal to the servant and his wilful disregard of them. The master's 
 liability ought to be limited to that which he may anticipate and guard 
 against " {Beyy (Adx.) v. Tlie MidJand Railway Company). So udiere a 
 servant teas guilty of unJauful pounding, it was held in Lyons v. Martin 
 that his master was not liable. The defendant occupied land adjoining 
 a highway, and not fenced ; and horses of the neighbourhood had, 
 shortly before the act in question, trespassed on the land and been im- 
 pounded. The plaintiff's horse being on the highway was intentionally
 
 212 MASTER LIABLE FOR ACT OF SERVANT. 
 
 driven from it, by a servant of the defendant's, into the defendant's 
 gronnd, and there secured by the same servant and taken to the pound. 
 
 Coleridge J, thought, as this was not within the scope of a servant's 
 ordinary authority, some direct authority from the master ought to be 
 proved : and this not being done, the plaintiff was nonsuited. The 
 Court refused a new rule, as it was clear the wrongful act could not be 
 traced to the master. Fatteson J. said, " Brucker v. Fromont, and other 
 cases, where the master has been held liable for the consequences of a 
 lawful act negligently done by his servant, do not apply ; here the act 
 was utterly unlawful. A master is liable ivhere his servant causes injury 
 hy doing a lawful act negligently, but not where he wilfully does an illegal 
 one. Every person is to be taken to know the law." 
 
 A master is liable for an act done by his servant in the course of execu- 
 ting his orders with ordinary care ; and therefore where a servant was 
 ordered to lay down a quantity of rubbish near a neighbour's wall, but 
 80 that it might not touch the same, and the servant used ordinary care 
 in executing the orders of his master, but some of the rubbish naturally 
 ran against the wall, it was held that the latter might be sued in trespass " 
 
 Gregory v. Fiper, 9 B. & 0. 591). Ar^Hj^er Littledale J. : "Where a servant 
 does work by order of his master, and the latter imposes a restriction 
 in the course of executing his order, which it is difficult for the servant 
 to comply with, and the servant in execution of the order breaks through 
 the restriction, the master is liable in trespass. Suppose the case of two 
 persons possessed of contiguous uninclosed land, and that one of them 
 desired his servant to drive his cattle, but not to let them go upon the 
 land of his neighbour, and that the cattle went upon the land of the 
 neighbour, the master would be answerable in trespass, because he has 
 only a right to expect from his servant ordinary, not extraordinary 
 care. If the servant, therefore, in carrying into execution the orders of 
 his master use ordinary care, and an injury is done to another, the master 
 is liable in trespass. If the injury arise from the want of ordinary care 
 in the servant, the master will only be liable in case " {ib.). And again 
 in Turberville v. Stampe, where the defendant's servants kejit a fire so 
 negligently guarded on the heath of their master, which was adjacent to 
 the plaintiff's, that the latter was burnt, the defendant was held liable. 
 Holt C.J. observed : " If my servant throws dirt into the highway, I am 
 indictable. So in this case, if the defendant's servant kindled a fire in 
 the way of husbandry, and proper for his employment, though he had no 
 express command of his master, yet the master shall be liable to an action 
 for damage done to another by the fire, for it shall be intended that the 
 servant had authority from his master, it being for his master's benefit.'' 
 In Kingdon v. Moss the plaintiff recovered against a veterinary surgeon
 
 NEGLIGENCE BY VETERINARY SURGEON. 213 
 
 for the /os-s of a mare tr/tich he (lUeged had been desiroijed hij tlic improper 
 admirustration of a draiight hjj his servant. The man, according to the 
 evidence of the plaintiff's servant, had fastened tlie mare's head to a 
 beam, and poured the draught down ; and the mare coughed and kicked 
 about, and showed such pain that plaintiff came into the stable and told 
 the man he had killed her. Ten days afterwards she died ; but the 
 defendant's witnesses attributed her death to pleuro-pneumonia, and 
 proved that there were tubei'cles in the left lung in various stages, as 
 well as a broken abscess and adhesion between the lungs and ribs. 
 Evidence was adduced for the plaintiff to show that the pleuro-pneu- 
 monia arose from some foreign substance (in this case the medicine) 
 having gone the wrong way, and got into the air passages. The defen- 
 dant and his witnesses admitted that it was improper to fix a horse's 
 head when giving medicine; but the man said that he had merely tied 
 the halter to the beam by a slip-knot, and could in a moment set it free 
 by pulling the cord. Lord CampUll C.J. told the jury that if they 
 were of opinion that there had been improper treatment, which had 
 accelerated the death or done any harm whatever to the mare, the jury, 
 in point of law, must find for the plamtiff, which they did, with £b 
 damages. 
 
 A curious case of liability came before the Court of Common Pleas 
 in Holmes v. Onion. Tlie defendant had hired one Simpkiu as a 
 thatcher, but no time was mentioned at which the service was to com- 
 mence. About a month after this Simpkin hired himself to the plain- 
 tiff. Some conversation ensued between the latter and the defendant ; 
 and the defendant said, " I must have my wheat cut, and if I give 
 Simpkiu up you must pay me as much as I should have had if he were 
 thatching for me." To this the plaintiff assented ; and Simpkin did a 
 portion of the thatching very negligently, and left it before it was 
 completed. The defendant then sent another man, at the plaintiff's 
 request, to complete it : sued the plaintiff in the Newmarket County 
 Court, and recovered for the w^hole work done. An action was then 
 brought by the plaintiff at the Cambridgeshire Spring Assizes against 
 the defendant for the negligent thatching of the stacks ; and the 
 defendant had a verdict, leave being reserved by Pollock C.B. to enter 
 the verdict for the plaintiff for £5, if the Court should think that there 
 was any evidence of a contract between the plaintiff and defendant, so 
 as to make the defendant liable for Simpkin's negligent execution of 
 the work. The Court made the rule absolute. 
 
 CressweJl J. said : "The case of Quarman v. Burnett (6 M. & W. 499) 
 shows that Simpkin would be Onion's servant, and Onion the contracting 
 party. The defendant buys the services of an able thatcher, in order to hire
 
 211 SERVANT KILLED BY NECLIGENCE OF ANOTHER, 
 
 ]iim out at a profit, and ho docs po, and gets the profit ; then he should 
 lie liable.'' In re})ly to the argument of counsel that where the plaintiff 
 selects his man he takes the risk of his not possessing skill, industr}', 
 and g-ood conduct, his lordship added : " Suppose you send a valuable 
 horse to a smith, and say, ' Do not trust this horse to any clumsy 
 hands, but shoe him yourself, or let your foreman shoe him,' and the 
 foreman does shoe him and pierces his foot, is not the smith liable ? " 
 Andpej' CocJcbum C.J. : " Although where a man selects a servant, the 
 master may be relieved from responsibility as to incompetency, that 
 will not relieve him from liability as to negligence" (26 L.J. C. P. 261). 
 
 If a sei'vant, in this case a general manager, he possessed of a Iwrse and 
 gig of his own (which were kept at the defendant's expense), and while 
 using them to collect debts on his master's account with his master's 
 acquiescence, cause a collision and damage hg his negligent driving, the 
 master is liable for the damage {Patten v. Rea). Willcs J. observed 
 that the defendant's argument " seemed a contradiction of the doctrine 
 laid down in Turhcrville v. Stampe." And per Curiam, in an action for 
 damage done by the negligent driving of the defendant's servant, the 
 proper question to leave to the jury is, whether at the time of the act 
 complained of the servant was driving on his master's business and 
 with his authority {ib.) (1 Ld. Eaym. 264). 
 
 The 77th sec. of Stat. 5 & 6 Will. IV. c. 50, provides that a person 
 mag act as the driver of two carts on a highwag, provided that the carts 
 shall not be drawn by more than one horse each, and the horse of the 
 hinder cart shall be attached by a rein, not exceeding four feet, to the 
 back of the foremost cart ; and it was held by the Court of Queen's 
 Bench, in Robertson (appel.) v. Burlcett (resp.), that the provision was 
 substantially complied with, when a driver seated in the first cart had 
 a rope attached to the head of the last horse passed over the back, and 
 fastened to the body of the first cart about the centre, and the last 
 horse's head drawn close up to the back of the first cart, so that he 
 had full command of both horses. Erie J. styled the appeal '• a pesti- 
 lent perversion of a useful statute." 
 
 ^Y]lere a servant in the ordinarg course of his emplogment is Jcilled bg 
 the negligence of one ivho is not his emploger, the widow may maintain 
 an action against the latter ( Vose Adx. v. The Lancashire and Yorkshire 
 Railwag Compang). According to Tarrant v. ^Yed)b, a master is not 
 generallg responsible for an injnrg to a servant, from the negligence of a 
 felloiv -servant ; but that rule is subject to this qualification, that the 
 master uses reasonable care in the selection of the servant. And jjer 
 Jervis C.J. : "The master may be liable where he is personally guilty of 
 negligence ; but certainly not wiiere he does his best to get competent
 
 TNJUEY TO SEEYANT WOrjaKG WITH MASTEE. 215 
 
 j"»orsons. He is not bound to warrant their competency." So if one 
 servant overloads a cart, whereby it breaks down and throws plaintiff 
 (another servant), no action lies against the master {Priestley v. Fowler). 
 
 The above case was confirmed by the House of Lords in Bartons 
 Hill Coal Comjxuiij v. Reid, which decided tliat a master is not liable 
 to his servant for injury done to him by the negligence of a fellow- 
 servant employed in the same work, the injury not having arisen 
 from the unfitness of the latter; but to exclude the master's liability, 
 there must not only be common service, but the fellow-servants must 
 be employed in the same work. Where persons in common service 
 are engaged in diff'erent departments of labour, the master is liable 
 for an injury committed through negligence by one servant upon 
 another, unless the risk of such an injury was fairly to be considered 
 as incidental to the particular employment of the injured party ; and 
 the proper test of the latter consideration is, what risk the injured 
 party must have known he was exposed to from the nature of the 
 employment he undertook ; and notwithstanding some occasional dicta 
 of judges of the Court of Session, the English and Scotch laws arc 
 identical on this subject {ib.). 
 
 No contract on part of master not to expose servant to great risJc. — 
 From the mere relation of master and servant, no contract can be implied 
 on the part of the master to take due and ordinary care not to expose 
 the servant to extraordinary danger and risk in his service. And per 
 Follocic C.B. : " This is an attempt to nullify the decision of the 
 Court in Priestley v. Fowler (3 M. & "VV. 1 ; 7 L. J. N. S. Ex. 42), 
 and to enlarge the case in which persons in the relation of master or 
 employer are to be made responsible for injuries incurred by those in . 
 their employment, who are in general much more able to judge of the 
 probability and extent of the risk they run in the service than those 
 who employ them. I think it highly expedient that the rule laid down 
 in Fowler v. Priestley should be maintained and not eaten up by excep- 
 tions " {Riley Aclmx. v. Baxendale, 30 L, J. Ex. 87). 
 
 Lijury to servant worldng with master. — When, by the negligence of 
 the master, an injury is caused to a servant in the course of his employ- 
 ment, the master is liable, although he was employed as a workman at 
 the time, and was working with the servant ; and if one member of a 
 partnership is guilty of such an act of negligence, and if it occurs in 
 a matter within the scope of the common undertaking of the partner- 
 ship, all the partners will be liable for the injury caused to the servant. 
 And j;«r Curiam: " H the defendant had been simply the fellow workman 
 of the plaintiff, the case would have come within the principle and 
 would be quite analogous to Barlonshill Coal Company v. Reid (3 Macq.
 
 21 G INJURY TO SEEVAJsT WORKING WITH MASTER. 
 
 II. L. Ca. SCO), wliorc it was decided that a servant sustaining; an injury 
 from the neoligcuce of a fellow-servant engaged in the same employ- 
 ment, cannot recover against the common master. The present case 
 is distinguishable in this important particular, that the defendant, 
 althougli engaged jointly in the work of the mine, was also a co-pro- 
 prietor, and as such one of the plaintiff's masters ; and this takes the 
 case out of the before-mentioned rule, and calls for the application of a 
 different jirinciplc. The doctrine that a servant, on entering the service 
 of an employer, takes on himself, as a risk incidental to the service, the 
 chance of injury arising from the negligence of fellow-servants, has no 
 application in the case of the negligence of an employer. Though the 
 chance of injury from the negligence of fellow-servants may be supposed 
 to enter into the calculation of a servant on undertaking the service, it 
 would be too much to say that the risk of danger from the negligence 
 of a master when engaged with him in their common work enters in 
 like manner into his speculation. 
 
 " From the master he is entitled to expect the care and attention 
 which the superior position and presumable sense of the duty of the 
 latter ought to command. The relation of master does not the less 
 subsist because by some arrangement between the joint masters one of 
 them takes upon himself the functions of a workman. It is a fallacy 
 to suppose that on that account the character of a master is converted 
 into that of a fellow-labourer. Though engaged with the plaintiflF 
 (Ashworth) in a common employment. Walker did not the less remain 
 the master of the plaintiff and the partner of the co-defendant Stanwix. 
 This being so, it follows that Stanwix must be liable in respect of the 
 negligence through which injury has arisen to the plaintiff, as the rela- 
 tion of partner subsisted between Walker and Stanwix ; and as the 
 negligence was in a matter within the scope of a common undertaking, 
 we think that Stanwix is equally liable with Walker. That a partner 
 is liable for the negligence of his co-partner when engaged in the 
 business of the partnership is not only clear in principle, but it is 
 established by the case of Moretun v. Harden (4 B. & C. 223), in this 
 court, where the jjroprietors of a stage-coach were held liable with a 
 third for the negligence of the latter, by whom the coach had been 
 driven. Now it has never been doubted that for personal negligence 
 of the master, whereby injury is occasioned to the servant, the master 
 will be liable. Personal negligence is clearly established against 
 Walker ; and it being admitted that the defendant Stanwix was his 
 cn-])roprietor and partner, the latter must be held to be jointly respon- 
 sil>le in respect of such negligence, and is therefore liable in this action " 
 {Ashicoilh V. Stanwix and Walker, 30 L. J. Q. B. 183).
 
 STEANGER HELPING SERVANT. 217 
 
 Non-JlfihilH!/ of master for injury to servant from iiegliyence offdtow 
 servant. — The doctrine in Priestley v. Fowler (3 M. & W. 1 ; and 7 
 L. J. N. S. Ex. 42) that a master is not liable for an injury to his 
 servant arising from the negligence of a fellow-servant, ^^^^oi^^/ef/ he has 
 taken due care to iirovide proper macMnery and competent servants, was 
 upheld in Searle v. Lindsay and Others. 
 
 Stiriiiger helpiny servant.— If a stranger, invited by a servant to assist 
 him in his work, is, while engaged in giving such assistance, injured by 
 the negligence of another servant of the same master in the com'se of 
 his employment, the stranger cannot hold the master responsible. The 
 stranger, by volunteering his assistance, cannot impose upon the master 
 a greater liability than that in which he stands towards his own ser- 
 vant ; and if the master takes care that his servants are persons of 
 competent skill and ordinary carefulness, he is not liable for any injury 
 that one of them may receive from the negligence of another. This 
 case affirmed the authority of Degg v. Tlie Midland Piailway Company 
 (1 H. & N. 773, and 26 L. J. N. S. Ex. 171), and the decision of the 
 Queen's Bench was affii-med {Potter v. Faulkner, 31 L. J. Q. B, 30). 
 
 Proof of ivell-deflned negligence required. — In an action for an injury 
 occasioned by a defendant's negligence, e.g., negligent driving, the 
 plaintiflp, to warrant the judge in leaving the case to the jury, must 
 give 'proof of well-defmed negligence, and not merely some evidence of 
 negligence on the part of the defendant ; and where the evidence given 
 is equally consistent with there having been no negligence on the part 
 of the defendant as with there having been negligence, it is not com- 
 petent for the judge to leave it to the jury to find either alternative ; 
 such evidence must be taken as amounting to no proof of negligence. 
 It had been previously held, in Plgott v. Eastern Counties Railway 
 Company (3 C. B., 229), which was referred to in the plaintiff's argu- 
 ment, but not noticed in the judgment, that the fact of the premises 
 being fired by sparks from a passing engine is prima facie evidence 
 of neghgence, rendering it incumbent on the company to show that 
 lyome precautions had been adopted by them reasonably calculated to 
 prevent such accidents {Cotton v. Wood, 29 L. J. C. P. 333). 
 
 blaster responsiUe for wilful conduct of servant if u'ithin scope of 
 his employment. — It was held by the Exchequer Chamber {Wightman J. 
 diss, and Cromjjton J. dull.), affirming the judgment of the Court of 
 Exchequer, that a master is responsible for the negligent act of his 
 servant, notwithstanding that it be done wilfully, and contrary to 
 express orders, if it be done within the scope of his employment, and in 
 executing the matter for which he is engaged. Here the omnibus- 
 driver of the defendant's had wilfully, and contraiy to express orders
 
 218 IXJUllY TO FELLOW SERVA^"T. 
 
 from his master, pulled across the road to obstruct the jirogress of the 
 plaintiff's omnibus, and in so doing injured one of the plaintiff's 
 omnibus hoi-ses. The reason he gave was that he wanted to serve the 
 jilaintiff's driver as that person had served him. And jjcr Williams 
 J. : " If a master employs a servant to drive and manage a carriage, 
 the master is, in my oi)inion, answerable for any misconduct of the 
 servant in driving or managing which can fairly be considered to have 
 resulted from the performance of the functions entrusted to him, and 
 especially if he was acting for his master's benefit, and not for any 
 purpose of furthering his own interest, or for any motive of his own 
 caprice or inclination" {Limpus v. London General Omnilms Comimmj 
 Limited, 32 L. J. Ex. 31). 
 
 Alderson B. thus stated, in a similar case, Hutcldnson v. The TorJr, 
 Newcastle & Berwick Radway Compamj, the principle applicable to the 
 case of several servants employed by the same master, ivhere injury 
 resulted to one of them froyn the negligence of another. "■ In such a case, 
 however," said his lordship, "we are of opinion that the master is not 
 in general responsible when he has selected persons of competent care 
 and skill. Put the case of a master employing A, and B., two of his 
 servants, to drive cattle to market. It is admitted that if by the 
 unskilfulness of A. a stranger is injured, the master is responsible. Not 
 so, if A. by his unskilfulness hurts himself ; he cannot treat that as the 
 want of skill of his master. Suppose, then, that by the unskilfulness 
 of A., B., the other servant, is injured while they are jointly engaged in 
 the same service, there we think B. has no claim on his master. They 
 have both engaged in a common service, the duties of which impose a 
 certain risk on each of them ; and in case of negligence on the part of 
 the other, the party injured knows that the negligence is that of his 
 fellow-servant, and not of his master." In Degg (Adx.) v. The Midland 
 Raihray Company, the ahove rule of law that a master is not in general 
 responsible to his servant for injury occasioned by the negligence 
 of a fellow-servant in the course of their common employmenc, 7cas 
 extended to the case ofajjerson vlio is injured ivhile voluntarily assisting 
 ilm servants in their ivorlc. The deceased, by thus volunteering his 
 services, could not have greater rights, or impose any greater duty 
 on the defendants, than would have existed had he been a hired 
 servant. 
 
 It has also been decided that tchere an ioijury happens to a servant 
 while he is in the actual use of an mistrument, engine, or machine, of the 
 nature of which he is as much aware as his master, and the use of which 
 is, therefore, the proximate cause of the injury, he cannot, at all events 
 if the evidence is consistent with his own negligence in the use of it
 
 LENDING AN UNSAFE LADDEH. 219 
 
 being ilic real cause, nor in case of his dying from the injury, can his 
 representative under Lord Campbell's Act (9 & 10 Vict. c. 93), recover 
 against his master, there being no evidence that the injury arose 
 through the personal negligence of the master {Dijnen v. Leach). Nor 
 is it any evidence of such jJcrsonal negligence of ike master, that he has 
 in use in his works an engine or machine which is less safe than some 
 other which is in general use {ih.). But it was decided l:)y the Exchequer 
 Chamber that where a master builder personally interferes and directs 
 his workmen to make a scaffolding out of poles which he knows to be 
 unsound, he is liable to make compensation if the scaffolding gives way, 
 and a workman upon it in his employ, who has had no notice of the 
 unsoundness, is injured thereby {Roherts v. Smillt). And see AIsop v. 
 Yates, 27 L. J. Ex. 150. 
 
 A declaration that the defendant was possessed of a ladder, unsafe 
 and unfit for use by any person carrying corn up the same, and the 
 plaintiff was the defendant's servant, yet the defendant, well knowing 
 the premises, wrongfully and deceitfully ordered the plaintiff to carry 
 corn up the ladder, and the plaintiff in obedience to the order, and 
 believing the ladder to be proper for the purpose, and not knowing the 
 contrary, did therefore carry corn up it for the defendant ; but by reason 
 of its being unsafe and unfit, the plaintiff fell and was injured, was held 
 in Williams v. Clovgh, BramiveJl B. (Jul)., to be sufficient without an 
 averment that the plaintiff had no notice that the ladder was unsafe. 
 And senibh, the gratuitous lender of an article unfit for use to his 
 knowledge, is not liable to a person whose user of it he has not fore- 
 seen, for an injury caused by the unfitness {Blachnore Adx. v. Bristol & 
 Exeter Raihcay C'om^mny). 
 
 In Joel V. Morison, Parke B. ruled that if a servant driving his master's 
 cart on his master's business 7nalce a, detour from the direct road for some 
 jmrpose of Ids oivn, his master will be answerable in damages for any 
 injury occasioned by his careless driving while so out of the road. But 
 if a servant take his master's cart tvithotct leave, at a time when it is not 
 wanted for the purposes of business, and drive it about solely for his 
 own purposes, the master will not be answerable for any injury he may 
 do. And this ruling was confirmed by the Court of Common Pleas in 
 the case of Mitchell v. Crasiualler, where the defendant's carman, instead 
 of putting up his horse and cart when the day's work was done, without 
 the defendant's leave, drove a fellow-servant in an opposite direction to 
 the mews, and on his way back injured the plaintiff by his negligent 
 driving. The defendants, under Not guilty, were allowed to show that 
 the driver was not at that time acting as their servant. The Coui't of 
 Queen's Bench upheld the ruling of Parke J. in Goodman v. Kenuel
 
 220 LIABILITY OF MASTER DEFINED. 
 
 that if a master sends fiis servant on an errand, irUltuid }wov!din(j him 
 trifh a fiorse, and the servant takes one and rules it in the doing of si/eh 
 errand, and au injury happens in consequence, the master is not liable 
 in an action for damages by the party injured. If it were otherwise, 
 every master might be ruined by acts done by his servant without his 
 knowledge or authority. And Tindal C.J. ruled in Ulidge v. Goodwin, 
 that // a horse and cart are teft in the street Inj a servant, without any one 
 to watch them, the owner is liable for any damage done, even though it 
 be occasioned by the act of a passer-by in striking the horse. See also 
 Croft V. Alison, 4 B. & Aid. 590. 
 
 ]\Ir. Baron Parke observed, in Gordon v. Rolt, " The result of the 
 authorities is, that fa servant, in the coarse of his master's employ, drives 
 over any 2}('rson, and does a ivilful injury, the servant, and not the master, 
 is liable in tresjMss; if the servant, by his negligent driving, causes an 
 injury, the master is liable in case ; if the master himself is driving, he 
 is either liable in case for his negligence, or in trespass, because the act 
 was wilful. In Maclaughlin v. Pryor, the master, though not actually 
 driving, was present, and directing the driver; therefore there was 
 evidence that he sanctioned the conduct of his servant, from which the 
 injury arose." And see his lordship's judgment in Sliarrod v. The 
 London and North Western Railway Company, where some cattle were 
 killed by a railway engine. A person driving a carriage is not dound to 
 keep on the regidar side of the road; but if he does not, he must use more 
 care, and keep a better look out, to avoid concussion, than would be 
 necessary if he were on the regular side of the road {Pluclavelly. Wilso7i). 
 And per Mcnde J. : " It is negligence not to drive an inferior vehicle 
 with such a degree of care as its inferiority requires, just as it would be 
 negligence to drive a high-spirited horse with no more care than a dull 
 one " {Templeman apjxillant v. Hagdon respondent). This was an appeal 
 against the decision of a Somersetshire county court judge, in an action 
 for negligently driving a horse and cart ; the plaintiff having simply 
 ))roved the fact of a collision, under circumstances which might or 
 might not amount to negligence. The defendant proved that the horse, 
 ])erfectly quiet up to the time, and going slowly, suddenly began to kick 
 very violently ; both shafts broke ofiP, the cart tilted up, and himself and 
 a woman and four dead i)igs were thrown into the road, that he himself 
 was rendered insensible, and that the horse, which then ran away, had 
 not sufficient room to pass the plaintiff's horse and gig on the proper 
 side of the road. The judge ordered a verdict for the plaintiff, being 
 of opinion that the breaking of the shafts, even under the circumstances 
 stated by the defendant's witnesses, showed a defect in the cart, which 
 raised a presumption of negligence in the owner, and the appeal was
 
 RULE OF LAW RESPECTIXG NEGLIGENCE. 221 
 
 dismissed with costs. It is said (Bac. Abr,, Tit. " Master and Servant ") 
 that if a servant drives his master's cart, and by his negligence suffers 
 the cattle to perish, an action on the case lies against him. In an action 
 of tort for an injurij to the jjerson as Inj careless driving, imrticuJars will 
 be ordered as to the nature and extent of the injuries, or of the claim for 
 compensation on an affidavit ( ^Yiclis v. MacnamarcC). 
 
 The general rule of law respecting negligence is, that although there 
 may have been negligence on the part of the plaintiif, yet unless he 
 might by the exercise of ordinary care have avoided the consequences 
 of the defendant's negligence, he is entitled to recoYev (Davies v. Mann; 
 Bridge Y. The Grand Junction Raihmg Conqmny; ButterfieldY. Forrester). 
 Jn the first of these three cases, the plaintiff having fettered the fore- 
 feet of an ass belonging to him, turned it into a public highway; and 
 at the time in question the ass was grazing on the oflF-side of a road 
 about eight yards wide, when the defendant's waggon with a team of 
 three horses coming down a slight descent, at what the witness termed 
 a smartish pace, ran against the ass, knocked it down, and killed it. It 
 was proved that the driver of the waggon was some little distance 
 behind the horses. ErsMne J. told the jury, that though the act of the 
 plaintiff in leaving the donkey on the highway so fettered as to prevent 
 his getting out of the way of carriages travelling along it, might be 
 illegal; still, if the proximate cause of the injury was attributable to the 
 want of proper conduct on the part of the driver, the action was main- 
 tainable against the defendant, and his lordship directed them, if they 
 thought the accident might have been avoided by the exercise of 
 ordinary care on the part of the driver, to find for the plaintiff, which 
 they did, with 40s. damages. The Court of Exchequer upheld the 
 ruling. Parke B. said : " Although the ass might have been wrongfully 
 there, still the defendant was bound to go along the road at such a pace 
 as would be likely to prevent mischief Were this not so, a man might 
 justify the driving over goods left on a public highway, or even over a 
 man asleep there, or the purposely running against a carriage going on 
 the wrong side of the road." It is deducible from the opinions of the 
 judges in Butterfield v. Forrester, Bridge v. The Grand Junction Canal 
 Company, Davis v, 3Iann, and Dowell v. The General Steam Navigation 
 Company, which were all referred to in the judgment of the Exchequer 
 Chamber, which affirmed the decision of the Court of Common Pleas in 
 Tuff Y. Warman, — that in actions for injuries by collision, though the 
 damage is not occasioned entirely by the negligence or improper con- 
 duct of the defendant, the plaintiff is still entitled to recover, if he have 
 not so far contributed to the misfortune by his ouni ?iegligence or want of 
 ordinary care, that but for such negligence the misfortune could not
 
 2Zi LIABILITY OF MASTER FOR DEBTS CONTR ACTED BY SERVANT. 
 
 have liappeued, and if tlic defendant could by the exercise of ordinary 
 care and canlion have avoided the consequences of the neglect or care- 
 lessness of the plaintiff. 
 
 Lord EUenhoromjh C.J. ruled, in Rushy v. ScaHcll, that the master is 
 discMrijcd from the payment of debts contracted hy the servant where he 
 gives the servant money beforehand to jmy for goods ; but not where he 
 authorizes the servant to take up goods, and afterwards gives him money 
 to pay, if the servant embezzles the money. The action here was to 
 recover the price of hay and straw sold and delivered at defendant's 
 stables; but there was no evidence that the plaintili' had ever seen the 
 defendant, or received any orders from him. Defendant said he had 
 given the coachman money to pay the bills, and that he had embezzled 
 it ; but it appeared the money was advanced generally, and not with a 
 view to this particular demand ; and there was a verdict for the plaintiflp. 
 It was held by Potloclc C.B. in Aste v. Montague, that a gentleman was 
 I'dhtefor corn ordered in his name by a livery-stable Iceeper, ivho had been 
 his coachman, and continued to loear his livery, not having given notice 
 to the plaintiff of the employment being at an end. Rimel v. Sctmpayo 
 was relied on for the plaintiff, in which Littlcdale J. held that if a gentle- 
 inan's coachnum go in his mastefs livery and hire hm'ses, which his master 
 v.ses, the master will be bound to pay for the hire of the horses, although 
 he has agi'ced with the coachman that he will pay him a large salary to 
 provide horses, unless the lender of the horses had some notice that the 
 coachman hired them on his own account and not for his master. 
 "Where the p)risoner had been in the habit of buying and selling corn for 
 his employers, and he had been accustomed to employ, for the purpose 
 of payments on their behalf, as well monies which he received on their 
 account, as monies which he received from them for that purpose, and 
 had falsely entered the price of some corn which he had purchased and 
 paid for as amounting to a larger rate of Qd. a coomb than it really did, 
 and retained the difference, it was held by Wightnuin J. that there was 
 no case for larceny ; but scmble that there was a case for the jury of 
 embezzlement (Reg. v. Lgon), And in Howard v. Siieward (2 L. R. 
 C. P. 148), the Court held that the servant or agent of a horse dealer has 
 implied authority to bind his principal or master by a warranty, even 
 though, unknown to the buyer, he has express orders not to warrant. 
 
 In Gingell v. Glascock, the plaintiff, a hay salesman, sold for the 
 defendant a load of hay to one Sumner, and remitted £4 IG.s. to him 
 before Sumner had paid. In the meantime defendant's servant, who was 
 sent up to London with the hay, charged by the plaintiff to deliver it to 
 the purchaser, was imposed on by some cheat, who personated Sumner, 
 and got the hay. Sumner would not pay, and the defendant would not
 
 :milk walk. 22.'5 
 
 refund, and the case having been referred, tlie arbitrator decided for the 
 pkiintiif. The Court considered that the servant who made the mistake 
 was at the time acting as the servant of the defendant, and the awaid 
 Avas confirmed. Evans v. Winifred Birch was a case of supposed cJieaiinij 
 hy a dairymaid, who was sued for money had and received. She liad 
 twenty quarts daily for a milk -walk, and sometimes sold on credit, and 
 sometimes for ready-money. Each morning she accounted with the 
 plaintiff; but there were no written vouchers, and often no third party 
 present : and she was sued for the proceeds of two months' milk. Lord 
 Ellenlorowjh called for " some evidence that the defendant has not paid 
 over the money. If in point of fact she has not, and no negative 
 evidence can be adduced by the plaintifi", I am afraid his only remedy 
 will be by a bill in equity for a discovery and account, though this may 
 be rather an expensive mode of settling a milk score." Siie, however, 
 acknowledged to Is. 8^/. not paid over, and the verdict was for that 
 sum. 
 
 A servant carrying out milk at locelcly wa/jes, with trade ailowances, 
 was restrained by Sir John Romilly M.R. from trading on his ou-n 
 account in contravention of an agreement, signed by him, not to carry 
 on the same business, &c., within the same district (three miles from 
 Charles-street, Grosvenor Square), for two years after ceasing to be 
 employed or leaving the service of his master, his successor, or assigns. 
 His Honour considered that the defendant's being a servant at wages 
 was quite a sufficient consideration to support the agreement, and that 
 it would be a virtual breach of it if he assisted any other milkman 
 {Benwell v. Inns). The trade allowances were bd. for every quantity 
 of eight quarts over and above 44 quarts a day he disposed of ; 2d. per 
 quart for carrying cream ; As. for every customer he introduced who 
 should continue such customer for two months, and take one quart of 
 milk per day, with an additional 4s. for two quarts or more per day 
 which such customer should take {il).). 
 
 The following were general cases of tarceny Inj. farming servants, and 
 somewhat peculiar in their facts. 
 
 Reg. V. Hayward. was a case where the prisoner took the straw to 
 the prosecutor's court-yard, and put it down at the stable-door. The 
 prisoner then went to the prosecutor, to ask him to send some one to 
 open the hay-loft, which was over the stable, that the straw might be 
 put in. He then put in part of the straw, and carried the rest away to 
 a public-house. This carrying away, if done with a felonious intent, 
 was held to be a larceny, and not an embezzlement, as the delivery of 
 the straw to A. was complete when it was put down at the stable-door. 
 And if a servant animo furandi takes his master's hay from his stable
 
 224 CASES OF LARCENY BY SERVANTS. 
 
 and puts it into his master's waggon, this is a sufficient asportation 
 {Reg. \. GnnuMJ). 
 
 Again, in Beg. v. Pn'rett and Goodhall, the prisoners, a carter and 
 carter's boy, took from the barn- floor, in the thresher's presence, five 
 sacks of unwinno\Ycd oats, and secreted them in a loft, to give to their 
 master's horses, although they were not answerable at all for the con- 
 dition or appearance of the horses. The jury found that they had no 
 intention of applying the oats to their private benefit ; but nine of the 
 judges held that, on the authority of previous decisions, this was a 
 larceny, though they doubted if they should have so decided if the 
 matter were res iniegra. Erie J. and Piatt B. thought that the taking 
 was not felonious, as the goods were to be applied to the master's use ; 
 and the former decisions proceeded on the supposition that the prisoners 
 would gain by the taking, which was negatived in this case. 
 
 The indictment in Beg. v. Mills was for obtaining money by false 
 pretences. The prisoner had been employed to cut chafi" for the pro- 
 secutor, and was to be paid 2d. per fan for as much as he cut. He 
 made a demand for 10^. 6f/., and said he had cut 63 fans; but the pro- 
 secutor and another witness had seen the prisoner remove 18 fans of 
 cat cliaflf from an adjoining chaff-house, and add them to the heap 
 which he pretended he had cut, thus making the G3 fans for which he 
 charged. Upon the representation that he had cut Go fans of chaff, 
 and notwithstanding his knowledge of the prisoner's having added the 
 18 fans, the prosecutor paid him the \0s. 6d., being Ss. more than the 
 prisoner was really entitled to for the work actually performed. The 
 Court quashed the conviction. And 2^er Curiam : " The question in 
 these cases is, whether the false representation is the motive opera- 
 ting in the mind of the prosecutor, and inducing him to part with his 
 money. It cannot be said that this was the case here, because he paid 
 the money, although he knew the representation to be false. Unless 
 the money be obtained by the false pretence, it is an attempt only. 
 The prosecutor could not recover back the money in a civil action, 
 because it was paid voluntarily, with a knowledge of all the circum- 
 stances." 
 
 One of the earliest cases on the subject of fraudidcnt drovers is Rex 
 v. Stork, which decided that it is larceny for a person hired for the 
 special purpose of driving sheep to a fair, to convert them to his own 
 use, he having the intention so to do at the time of receiving them from 
 the owner. The prisoner, who had never been the prosecutor's servant, 
 though he had been occasionally employed to drive sheep, was hired at 
 Bristol fair to drive fifty sheep to Bradford fair for him for 2s. 6d. per 
 day. lie had never had either ou this or any other occasion authority
 
 FRAUDULENT DROVERS. 2^5 
 
 to sell, but simply to drive them to Bradford ; which he did not do, 
 but sold ten out of the fifty, the next morning after he received them, 
 to a, person in quite an opposite direction to Bradford, on a false repre- 
 sentation of his authority to do so. The jury found that the prisoner 
 at the time he received the sheep intended to convert them to his own use 
 and not to drive them to Bradford, and the judges unanimously decided 
 that he was rightly convicted of felony. 
 
 This was followed by Rex v. Bernard 3Iac Namee, where it was 
 decided unanimously l^y nine judges, that if a man ivlio is hired to drive 
 cattle sell them, it is tarcenij ; for he has the custody only, not the right to 
 the possession, his possession being the owner's possession, though he is a 
 general drover, at least if he is paid by the day. The prisoner was con- 
 victed of stealing 118 sheep. It seems that the prosecutor, who lived fifty 
 miles from Grantham, had employed the drover in his service as a drover 
 off-and-on for nearly five years, but not as a regular servant. He was a 
 general drover, and lodged in the town ; and agreed with the prosecutor 
 for 35. a day, that being what the former regularly gave drovers. On the 
 3rd of April, 1832, he employed the prisoner to take 169 sheep to Gran- 
 tham fair, and found him with only 163 sheep on the 8th; his excuse 
 being that he had sold five lame ones, and sent one back. The prosecutor 
 sold 44 at Grantham, and gave the prisoner money and orders to bring 
 the 119 to Smithfield on the 16th, and meet him in London the night 
 before. The prisoner had no authority to sell sheep ; but on Monday he 
 found 118 of them at the market in the hands of different salesmen, who 
 said they had purchased them of one Shelton, who had bought them from 
 the prisoner, who pretended that they were his own. The jury found 
 that the prisoner did not intend to steal the sheep at the time he took 
 them into his possession. The case was considered by nine of the judges, 
 and they were unanimously of opinion that as the owner parted with 
 the custody only, not with the possession, the prisoner's possession was 
 the OAvner's, and that the conviction was therefore right. 
 
 In Rex V. Henry Hughes it was held, in thesame term, that a servant 
 may he found guiltij of emtjezzlemcnt, thovijh he is not a general servant 
 and enqdoijed to receive in a, single instance. Here the prosecutor was a 
 farmer, and the prisoner a drover occasionally employed by him. He 
 was engaged to take a cow and calf for him to Marylebone, and bring- 
 back £16, and had not any extra reward beyond what was his due for 
 driving and delivering the cattle to the purchaser. From the low situa- 
 tion in life of cattle-drovers they were not likely persons to be entrusted 
 with the receipt of money, and the Recorder (relying principally on Rex 
 V. Nettleton) considered that the receipt in this instance was a mere 
 voluntary act on the part of the prisoner, not at all incident to his
 
 J226 LARCENY BY DROVERS. 
 
 general clmractcr and employment as a drover, and that without any 
 breach of his duty as such, he might have declined taking upon himself 
 the burthen or risk attendant on his taking charge of the money. Nine 
 of the judges, however, were of opinion that the prisoner was a servant 
 within tlie meaning of the Act 7 & 8 Geo. IV. c. 29, s. 47, and that the 
 conviction was right. 
 
 The next case on the subject was Baj. v. }Vm. Goodboily. The prisoner 
 was indicted for stealing six oxen from a farmer and grazier, who had 
 known him several years, and had employed liim once or twice before. 
 He was sent with eight oxen, which were left unsold at St. Ives market, 
 and told that if he could sell them on the road he might, but that those 
 lie did not sell were to be taken on to Smithfield to one Mr. Pollett, the 
 prosecutor's salesman. On cross-examination the prosecutor said he 
 did not know whether the prisoner drove other cattle on that occasion, 
 though he was at liberty to do so : there is a regular charge for drovers ; 
 so much per head for cattle driven, and so much for cattle sold. Two 
 of the beasts he sold on his way to London, and took the remaining six 
 to Smithfield, wdiere he sold them, and received the money through a 
 ►Smithfield bank. One of the witnesses for the prosecution said the 
 prisoner was a salesman as well as a drover. J\Ir. Pollett was called as 
 a witness, and stated that he never received the beasts. He added : 
 " It is the duty of the drover to deliver them to our drover, and next 
 morning to come and see that we have them : it is no part of his duty 
 to sell them in iSmithfield. The prisoner had twice before delivered the 
 prosecutor's beasts to my drover." The Court held that there was no 
 proof that the prisoner was the servant of the prosecutor, and there 
 being no felonious taking in the first instance, the indictment could not 
 be sustained. 
 
 The suhjecf of felonious intention was much considered in Regina v. 
 Georeje Heij, which shook Rex v. Bernard Mac Xamee. On September 
 26, 1848, the prosecutors, two pig-jobbers at Newcastle, having bought 
 pigs which they tliought would suit Goose, a pig-dealer at Leeds, 
 engaged the defendant, a butcher and drover at Newcastle, to go by 
 rail and deliver them to Goose (bringing back the amount in a post- 
 office (jrder or a check) on showing him a certain paper. No orders of 
 any kind were given him to sell the pigs in case Goose refused to take 
 them. At a.m. on the 27th, he went to the house of Goose, who was 
 not at home. Mrs. Goose, on hearing him, called up a man, to whom 
 she referred him. The latter merely looked out of the window, and 
 said, "Is that you?''' and then shutting it up retired, as if to bed. 
 Between 6 and 7 that morning the prisoner called up a pork-butcher, 
 sold the pigs to him, absconded with the £35, and said nothing to the
 
 LAHCENY EY GENERAL DROVEK. ri£7 
 
 prosecutors. He had often been employed by them to slaughter and 
 cut np pigs, and had been paid by the job, but never before as a drover. 
 Two pounds were given him for expenses, and no arrangement was 
 made as to how he was to be paid, though there was an established 
 custom in the trade to pay them so much per day; and by another 
 trade usage he was at liberty to drive any other person's cattle at the 
 same time, though nothing was expressed to that effect in this case. 
 The pi'isoner said, in his defence, that he was a partner with the prose- 
 cutors ; and there was no evidence of an animus furandi when the pigs 
 were delivered to him. He was found guilty of larceny ; Imt the Recorder 
 postponed judgment to take the .opinion of the Court, whether, under 
 the circumstances, the prisoner was the servant of the prosecutors, and 
 whether the taking amounted to larceny ? The Court thought that it 
 was not proved in this case that the prisoner was a mere servant, and 
 that the conviction was wrong. 
 
 Parlie B. said, in delivering the judgment: "There are several 
 reported cases bearing upon the question whether a person is a mere 
 servant or bailee. There are none precisely like the present, though 
 the case of Rex v. Bernard Mac Narnee nearly approaches to it. In 
 this case, on the one hand, the circumstance that the prisoner was paid 
 the expenses of the cattle, and also that the customary mode of payment 
 of his remuneration was by the day, tend to show that he was a mere 
 servant ; on the other, the fact of his being a drover by trade, and also 
 of his having the liberty to drive the cattle of any other person by the 
 general usage with respect to di-overs, raises an inference that he was 
 not a servant. The learned Depufji-Recorder felt himself bound by the 
 decision of the judges in Rex v. Henry Hughes, but that case was under 
 the 7 & 8 Geo. IV. c. 29, s. 47, which makes embezzlement by a servant, 
 or person employed in the capacity of a servant to receive money, 
 felony ; and the learned Recorder of London referred the question to the 
 judges, whether the prisoner fell under either description, though if the 
 indictment had been referred to, it was necessary to prove that he was a 
 servant. The judges decided that the prisoner was properly convicted, 
 and consequently that he was a servant or person employed in that 
 capacity, and authorized as such to receive money, so that his receipt 
 would be a discharge to the debtor. This is not exactly the same ques- 
 tion. It is, whether the prisoner had the custody of the cattle as a 
 servant to the prosecutor at the time of the receipt of them ; and we 
 think he could not be so considered, unless in driving the cattle to 
 market he was his servant, and the prosecutor responsible for any 
 negligent act of his in so driving them. This subject has undergone 
 much discussion of late, and has been placed on its projier footing by 
 
 4 2
 
 238 BUTCHER EMi'LOYING DllOVEE. 
 
 the case of Quannan v. Burncit, and other cases : one of which is that 
 of a general drover, who was held, in Milliijan v. Wedge, not to be a 
 servant so as to make the owner of the cattle responsible for his negli- 
 gence. After the full consideration which this subject has undergone, 
 we doubt whether the case of Rex v. Bernard Mac Namee (above 
 referred to) would now be decided in the same way. 
 
 In MiUignn v. Wedge, defendant was a butcher, and had bought a 
 bullock in Smithfield-market, which is within the city of London. By 
 the bye-laws of the city, no person not licensed can drive cattle for hire 
 from Sniithfield, though the owner may drive them himself. The 
 defendant employed a licensed drover to drive the bullock to the defen- 
 dant's slaughter-house, which is without the city, and the drover 
 employed a boy to drive it there, with four other bullocks, which were 
 not defendant's, but were bound in the same direction. The five were 
 passing the plaintiff's show-room, which is without the city in Port- 
 land-road, when the defendant's bnllock did the mischief complained of. 
 Williams J. thought, on the evidence, the boy was not the defendant's 
 servant ; and the jury having found neglect, a verdict was given for 
 defendant on the first plea (that at the time, &c., the said person driving 
 the bullock "was not employed by him, the said defendant, as his 
 servant in that behalf, in manner," (tc), and for plaintiff" on the second 
 (Not guilty). Leave was reserved to move to enter a verdict for the 
 plaintiff" on the first plea, but the rule was discharged. The Court 
 considered they were bound by the decision in Qiiarman v. Burnett, 
 where the opinions of Abbott C.J. and Litfledale J. in Laugher v. 
 Pointer were acceded to by the Court of Exchequer. The party sued 
 here had not done the act complained of, but had employed another, u'ho 
 was recognized by the law as exercising a distinct calling. The butcher 
 was not bound to drive the beast to the slaughter-house himself. He 
 employed a drover, Avho employed a servant ; and hence the drover, and 
 not the owner, was liable. It did not even appear that the defendant 
 attended the drover or his servant ; and the mischief was done in the 
 course, not of the butcher's business, but the drover's. Coleridge J. 
 said: "The true test is to ascertain the relation between the party 
 charged, and the party actually doing the injury. Unless the relation 
 of master and servant exist between them, the act of the one creates no 
 liability in the other. Apply that here. I make no distinction between 
 the licensed drover and the boy: suppose the drover to have committed 
 the injury himself. Tlie thing done is the driving. The owner makes a 
 contract with the drover that he shall drive the beast, and leaves it under 
 his charge ; and then the drover does the act. The relation, therefore, 
 of master and servant does not exist between them " (12 A. & E. 737).
 
 PRESUMPTION OF DROVER's AUTHORITY TO SELL. 2;J9 
 
 AiJcrson who is entrmicd Juj f/tc o/riier fo falce caftle to a salesman for 
 the market, has no implied authoritij {in the absence of proof of a custom to 
 pay the servant) to receive the proceeds of the sale {Letiice v. Judkins). 
 What is a reasonable presumption that a drover has authority to sell, 
 appears from Metcalfe v. Lumsden, which was a case of trover for 
 thirteen heifers. The plaintiff brought the heifers to Morpeth market ; 
 but not being able to sell them, entrusted them, without any direct 
 authority to sell, to a common drover, to take them to some land of 
 defendant's, ordinarily used for that purpose by farmers and cattle- 
 jobbers frequenting Morpeth market, to graze till the next market-day. 
 They were brought there on September 6th, and on the next day the 
 drover offered them for sale at a fair price to the defendant, stating 
 that he had authority from the plaintiff to dispose of them, and 
 absconded with the purchase-money. In a week's time the plaintiff 
 went to demand his cattle, and tendered the money due for agistment; 
 but the defendant refused to give them up, alleging that he had bought 
 them from the drover. The drover had sold cattle for the plaintiff in 
 Morpeth market on former occasions, and had also stood in the market 
 with the cattle in question. It was customary for drovers to sell cattle 
 in the market for their employers ; but there was no evidence that the 
 drover had ever sold cattle for the plaintiff except in the market, nor 
 was there any evidence that drovers had by custom an implied authority 
 to sell cattle on the road. 
 
 Rolfe B. said : " An authority to sell may be either express, as when 
 an actual order to sell is given, or it may arise from ordinary usage, as 
 in the case of a servant in a shop or market, or where the master has 
 been in the habit of sending his servant to sell at a particular place. 
 Had the defendant purchased the cattle on the 6th of September on the 
 market, he might have been protected ; but with regard to the autho- 
 rity which the drover had on the 7th of September, the only evidence is 
 that he was ordered to take the cattle to depasture, and this, indeed, 
 appears at first to have been the defendant's own opinion. Afterwards, 
 however, on the drover representing to the defendant that he had 
 authority from the plaintiff to sell, the defendant buys the cattle from 
 him ; and who, then, is to suffer by the drover's dishonesty ? Clearly 
 the party who was guilty of incaution. The defendant might have 
 ascertained whether the drover had, in fact, authority to sell or not ; 
 but not having done so, and having afterwards refused to give up the 
 cattle to the real owner, on the ground of a purchase from a party 
 who, it turns out, had no authority to sell, he has been guilty of a 
 conversion." 
 
 In Goode v. Jones it was settled that there is a privittj between the
 
 2o0 LIxiBlLlTY OF SALESMAN'fcJ BOOK-KEEPEll. 
 
 otnur of cattle and Hip salesman's loolc-leejwr, who has received the 
 farmer's money from the salesman and entered it as such. The plaintifiP, 
 a country grazier, had sent three oxen by his drover to Smithfield, to be 
 sokl by a salesman, who employed the defendant (who was also employed 
 by several other salesmen) as his book-keeper. It was the business of 
 the latter to receive the money from the purchaser, and keep an account 
 of the beasts sold, distinguishing what each beast was sold for, and to 
 whom it belonged. \Alien that is done, the salesman sends an order to 
 the book-keeper, desiring him to pay. In this case the salesman owed 
 the defendant money, and refused to pay over the money received for 
 the plaintiff's cattle till his own debt from the salesman was satisfied. 
 The salesman became insolvent, and this action was brought. Lord 
 Kenyon C.J. said he was never clearer on a case in his life. By the 
 common law of the land the plaintiff is entitled to receive this money 
 from the defendant, and no custom whatever can deprive him of it. 
 There is not the least similitude between the case of a banker and the 
 present defendant. No privity whatever exists between the banker of a 
 factor and the principal whom he never heard of; but this defendant 
 knew that he was receiving this money for the use of the plaintifiP; he 
 entered his name in his book, and distinguished how much was due to 
 him. The plaintiff had a verdict.
 
 DEFINITION OF MORTALITY. 231 
 
 CHAPTER VIII. 
 
 CONVEYANCE OP HORSES AND CATTLE. 
 
 Very few cases of injuries to, or losses of, horses and cattle during 
 conveyance from place to place, are to be met with in the books, before 
 the universal establishment of railways. In Lawrence v. Aherdein, two 
 mules, an ox, and five asses were killed, and the remainder received 
 such severe injury from the pitching of the ship, that nearly all of 
 them died. The Court decided that this was a loss hij jieril of the sea, 
 and that the underwriters were liable on a policy which warranted 
 them "free ofmorMity and jettison." Best J. said : " The underwriters 
 have only stipulated that they will not be liable for loss by mortality. 
 That word in its ordinary and popular sense signifies death arising 
 from natural causes, and not from violence. I think, therefore, that 
 the underwriters must be taken to have intended to exempt themselves, 
 by this exception, from that species of loss which occurredin Tatham v. 
 Hodgson, a loss of which death was the proximate cause, and the perils 
 of the sea the remote cause. Here the injury done to the animals arose 
 directly and immediately from the violence of the tempest ; or, in other 
 words, from the perils of the sea. In Tatham v. Hodgson, the want of 
 provisions was the immediate cause of the death of the slaves ; the 
 remote cause was the circumstance of the ship having been driven out 
 of her course by the perils of the sea, in consequence of which the 
 provisions, which otherwise would have been quite sufficient for the 
 voyage, were exhausted." 
 
 The construction put by the Court on the word " mortality," in the 
 above case, governed their decision in Galjag v. Llogd, which was an 
 action of assumpsit on a policy of assurance on three horses, " war- 
 ranted 'free from jettison or mortality." It was there found, by a 
 special verdict, that in consequence of a storm, the horses broke down 
 their slings, and killed themselves by kicking down the partitions ; 
 and that at Lloyd's Coffee-house, where the policy was efiFected, a 
 particular usage prevailed with respect to policies on live stock. The 
 Court ordered the postea to be delivered to the plaintiffs, and ruled 
 that as the usage found by the verdict to prevail at Lloyd's cannot
 
 '^0:1 NEGLIGENCE OF OWNERS OF FERRY. 
 
 possibly <nflbct any other persons tliau those who frequent that phice, 
 and are familiar -nith that usage, it A^•ould not bind the plaintiffs, Avho 
 "were not shown to be persons answering that description. LittMalc J., 
 however, intimated that he had some doubt whether he should have 
 agreed with the rest of the Court, in Lawrence v. Ahcrdcin, on the 
 construction of the word " mortalif//." 
 
 WiUouffMnj and olhcrs (appellants) y, Horrhlgc (respondent), was a 
 case of very r/ross negJiyence on the j'art of the lessees of a ferry, who 
 provided steam-boats for the conveyance of caftle, passengers, and 
 goods from Liverpool to Birkenhead, and also slips for landing. The 
 plaintiff rode his mare to the liirkeuhead ferry, paid I*-., led her on 
 board himself, and remained with her till they were alongside the 
 floating-stage at Liverpool, when he led her off it along the slip, which 
 had nothing broken in its appearance to attract attention. The com- 
 pany were held liable for the full value of the mare, who sustained a 
 f\ital injury, in consequence of such landing-slip (of the dangerous 
 state of which they had been forewarned) giving way, although she was 
 at the time under the control and management of her owner ; and the 
 ruling of the County Court judge, that to permit a using of the slip 
 after two accidents, one of them that very morning, was so careless and 
 culpable an act, as to make the defendants responsible for the con- 
 sequences, was confirmed. One of the hand-rails of the slip had been 
 broken in the centre, where a sharp-pointed upright supporter of iron 
 entered it, by a horse a fortnight before ; but the rail had been merely 
 tied by a piece of cord, and used as usual. On the very morning be- 
 fore, another horse had fallen against it and broken it ; but in spite of 
 a distinct caution from the policeman on duty, it was put together 
 again, and the plaintiff's mare pressing against the spliced rail, it 
 parted, and the iron upright pierced her so severely, that she had to be 
 destroyed. 
 
 The 8Gth section of the Raihraij Chtuses Consolidation Act, stat. 8 & 9 
 Virt. c. 20, is permissive only, and a railway company who under it 
 elects to carry goods is subject to no greater liability than attaches to 
 carriers at common law ; and therefore such a company is not bound 
 to carry every description of goods, and between all places on their 
 line, but only such goods, and to and from such places as they have 
 publicly professed to do and have convenience for that purpose {John- 
 son v, 77/e Midtand Raitaxiij Company). The first of a long line of 
 cases in which railvays mdeavovred to restrict their common law liahility 
 as carriers, by the special terms of their looh'ny tickets, was that of 
 Palmer v. Grand Junction Railway Company. Here the plaintiff', who 
 was a horse-dealer at Northampton, booked nine horses at Liverpool,
 
 carriers' liability restricted by booking ticket. 233 
 
 and placed them in three horse-boxes, attended by his son. The 
 engine was thrown off the line near Birmingham, owing to a horse 
 having strayed on to it, and one of the horses was killed on the spot, 
 and the rest more or less injured. Some labourers had been working 
 at a culvert, and taken down some part of a fence, and hence the horse 
 had strayed on to the railway. There was contradictory evidence as to 
 whetlier a ticket had been delivered to the plaintiff's son at the time 
 when the horses were booked at Liverpool, bearing this notice, " This 
 ticket is issued, snhjed to the oivners undertaUng all risJcs of conveyance 
 ichatsocrer, as the company will not be responsible for any injury or 
 damages (however caused) occurring to horses or carriages travelling 
 upon The Grand Junction Line" The declaration alleged that the 
 defendants received from the plaintiff divers horses, to be safeli/ and 
 securely carried and conveyed, which allegation the defendants traversed 
 in their second plea. Two questions of fact were left to the jury: first, 
 whether the accident was occasioned by the gross negligence of the 
 defendants ; and secondly, whether the above ticket, by which the 
 company sought to limit their responsibility, ever came into the 
 possession of the plaintiff's son, or any other person acting for the 
 plaintiff. The jury found gross negligence in the defendants, and that 
 DO ticket had been given, and the plaintiff had a verdict for £150. 
 A rule nisi for a nonsuit was obtained on two grounds — first, that the 
 declaration being against the defendants as carriers, it was not sup- 
 ported by evidence which fixed them with negligence in the non-repair 
 of fences, in their character of railway projjrietor ; and secondly, that 
 fourteen days' notice had not been given to the defendants before 
 bringing this action. A rule for a new trial was also obtained on the 
 ground of misdirection on the part of the learned judge {Tindal C.J.), in 
 leaving it to the jury to consider whether the ticket ever came into the 
 iwssession of the plaintiff's agent, instead of leaving to them whether 
 it was not read over, or its contents communicated to him. It was 
 held that the company were not entitled to fourteen days' notice of the 
 action, under section 214 of their act, 3 Will. IV. c. 34 (local and 
 personal), as the action was not brought against them for the omission 
 of some duty imposed upon them by the act ; and that not having 
 restricted their liability by any special contract (of which it was to be 
 assumed that there was no evidence in the present case), they were 
 subject to the liabilities of carriers at common law. At the trial, there 
 was contradictory evidence as to whether a ticket, by which the com- 
 pany sought to limit its liability, had been delivered to the son of the 
 plaintiff (who denied that it had) ; and the learned judge left it to the 
 jury to say whether it was delivered to him or not. It was held that
 
 23-1: r.AILWAY BOOKING TICKET. 
 
 it was no misdirectiou, in not directing- tlicm to find wliother it was 
 read over and ex2)]ained to him. 
 
 The principle of the restriction of JidhllH;/ in the ticM forming part of 
 the contract, was A'ery fully discussed in the case of Slimv v. llie York 
 and North Midland Kailwaij Comj)any. The plaintiS" was a horse- 
 dealer, who had brought nine horses to the York station, to be con- 
 veyed by railway to Watford. Three horse-boxes were shown him, to 
 one of which he objected, on the ground that a partition separating one 
 horse-standing from another was insecure. One of the company's 
 servants endeavoured to remedy the defect, and assured the plaintiff" 
 that the partition had been secnred ; and the horses were placed in the 
 boxes. The plaintiflF then paid the fare for their conveyance, and a 
 receipt was given him for money paid on acconnt of " three horse- 
 boxes : " and at the foot of the receipt was the following memorandum : 
 
 ^'jV.B. Til is ticket is issued, sid)ject to the ownefs undertaking all ris/cs 
 of conrcgance whatsoever, as the compang ivill not he responsible for any 
 injurg or damage {Itoivever caused) occurring to horses or carriages while 
 travelling, or in loading or unloading." 
 
 On the train arriving at Normantou, it was found that one of the 
 horses had killed itself, and that the insecurity of the above-mentioned 
 partition had led to its death. It was objected, for the defendants, 
 that tlie memorandum constituted the contract, and that the effect of it 
 was to protect the defendants from responsibility, under the circum- 
 stances, and to entitle them to a verdict on the second and third issues, 
 viz., that the defendants did not receive the horses to be safely and 
 securely carried and delivered ; and that they were carried subject 
 to a certain contract as to plaintiff undertaking the risks of conveyance. 
 Atderson B., who tried the case, thought that the special notice did not 
 exempt the defendants from the obligation to use ordinary care ; and 
 also, on the authority of Lgon v. Metis, that a contract in the terms of 
 the memorandum was subject to an implied exception of injury arising 
 from the insufficiency of the carriage provided by the defendants, and 
 directed a verdict for the plaintiff. The Court held this to be a mis- 
 direction, and made a rule for a new trial absolute. Lord Denman C.J. 
 said, in delivering the judgment of the Court, " It appears to us clear 
 that the terms contained in the ticket given to the plaintiff, at the time 
 the horses were received, formed part of the contract for the carnage 
 of the horses, Ijetween the plaintiff and the defendants, and that the 
 allegation in the declaration that the defendants received the horses to 
 he safelg and secure^g carried hg them, which would throw the risks of 
 conveyance upon the defendants, is dis})rovcd by the memorandum at 
 the foot of the ticket ; and the alleged duty of the defendants, safely
 
 LIABILITY OF RAILWAYS. 235 
 
 and securely to cany and convey the horses, would not arise upon such 
 a contract. It may be that, notwithstanding the terms of the contract, 
 tlie plaintiff might have alleged that it v.as the duty of the defendants 
 to have furnished proper and sufficient carriages, and that the loss 
 happened from a breach of that duty ; Ijut the plaintiif has not so de- 
 clared, but has alleged a duty which does not arise upon the contract 
 as it appeared in evidence." 
 
 The principle thus successfidlij csiaUislied in favour of the milwaijs 
 has been confirmed by a long line of subsequent decisions. 
 
 In ChiirpcncMe v. Tlte Lancashire and Yorlcshire Raihvay Company, 
 the plaintiff"'s drover brought 12 head of cattle to the Wigan station 
 of the above railway, to go to Bury, a distance of 1 6 miles. With the 
 aid of the company's servants they were put into a truck, and before 
 that operation was completed the plaintiff himself brought another 
 heifer, which was placed amongst them, and paid 8s. for the carriage. 
 He also got a free pass for his drover, and signed a pass-ticket, at the 
 bottom of which was this notice : 
 
 "N.B. This ticM. is issued, sidiject io the owner undertcdciny cdl risJcs 
 of conveyance ivhcdever, as the company wilt not le responsdjle for any 
 injury or damaye, howsoever caused, occurriny to live stock of any de- 
 scription trareUiny upon the Lancashire and YorMiire Railiray, or in 
 their vehicles. " William Chippendale. 
 
 [0/cner, or on the owners lehcdf ayrees to the cdjove termsy 
 
 On the truck reaching the main line the cattle became alarmed, and 
 tliree escaped throuyh a space between the ctose hoardiny at the tower part 
 of the side of the trucJc, and a rad which ran round the top of the track ; 
 two of the heifers were killed, and the third much injured. The 
 plaintiff's advocate in the AVigan County Court, by whose judge the 
 case was stated, contended that the defendants were liable, not- 
 withstanding the special contract, as the truclc was defectively con- 
 structed for the purpose of conveyiny cattle, by reason of the space 
 between the top rail of the truck and the close-boarding being too 
 great. The learned judge held that the plaintiff having entered into 
 the special contract as before mentioned had no ground of action, and 
 the defendants were not liable ; but having asked their opinion on 
 the point at the request of the plaintiff's advocate, the jury found that 
 they considered the truck in question was so defectively constructed 
 as to be unfit and unsafe for the purpose of conveying cattle along the 
 line, and that they considered the plaintiff had sustained damages to 
 the amount of £21 46'. The judge directed a verdict to be entered for 
 the defendants, and the Court affirmed the judgment with costs.
 
 2-'3G DAMAGE THROUGH BADLY COXSTRUCTED TRUCK. 
 
 Eric J. said : " I think that the plaiiitifT entered into a contract by 
 which he nndertook not to call npou tlie company for any damage, such 
 as that ^vhich has accrned. I take it that the carriage was fit for the 
 journey, and fit for the weight, and that the damage has entirely arisen 
 from the freight being living animals, who made an effort to escape, 
 and so injured themselves. That seems to me to be a risk for which 
 the comi)any peculiarly said that they would not be responsible. I 
 think that limitation, however wide in its terms, being in respect of 
 live stock, is reasonable ; for though domestic animals might be 
 carried safely, it might almost be impossible to carry wild ones without 
 injury." Coleridtjo J. thus remarked on Lyon v, Mells : "■ The counsel 
 for the appellants allows that to take the ticket literally, would be to 
 exempt the company in all cases whatever against any risks of con- 
 veyance, and against any injury or damage accruing to the animals 
 while travelling, but says that it cannot be construed so literally, and 
 resting on the authority of Lijon v. Mells, seeks to introduce a quali- 
 fication that the carriage is to be fit for the journey, or, to borrow a 
 phrase from contracts of insurance, ' sea-worthy.' Now the case of 
 Ltjon V. Mells was purely one of construction also. The Court rea- 
 soned from the particular exception in the case of want of ordinary care 
 in the master and the crew, that it must be intended that want of ordi- 
 nary care in the owner was also excepted ; and that it was a want of 
 ordinary care on his part, in not providing a proper vessul. Now the 
 words here do not leave us open to adopt any such ground of con- 
 struction as in that case. Tlie plaintiff had a full op^jortunity of know- 
 ing what the carriage was, for it is found that he saw one of the beasts 
 put into it." 
 
 In Avsiin v. I he Manchester, Sheffichl, d- Lincolnshire Railway Com- 
 pany, the doctrine of non-liahillty n-as si retched to its ntmost liniils. 
 The declaration, which was in case, contained two counts, and alleged 
 in the second that the defendants were pro})rictors of a railway and 
 carriages used for the conveyance of horses from New Holland to 
 Bhoreditch for hire ; and that plaintiffs, at the request of the defend- 
 ants, delivered to them, and they received, horses to be carried for the 
 plaintiffs by the defendants in a carriage for reward ; and that while 
 the horses were being conveyed in the carriage (which with the loco- 
 motive power thereof was under the sole control of the defendants) 
 the ivheel of tlie carriaye took fire, of ivhich the defeiulants, at a convenient 
 time and place, had notice, and were requested by plaintiffs not to per- 
 sist further in carrying the horses in the carriage ; but defendants ])qv- 
 sistcd, and the wheel took fire again for want of due precaution, and 
 broke, and the carriage was consequently thrown out of its proper posi-
 
 DAMAGE THROUGH AXLE TAKING FIRE. 237 
 
 tion, and the horses were injured. The facts of the case were these : 
 Shortly after the train had started, it was discovered that one of tlic 
 wheels of the truck in which the horses in question stood, was becominj^ 
 heated for want of grease ; and when the train arrived at Boston, the 
 company's servants were requested by the plaintiff's servant to cause 
 the carriage to be removed from the train and another substituted for 
 it ; but they declined to do so, alleging that tliere was not time for it, 
 but they applied water to the wheel, and greased it. When the train 
 reached Peterborough, the wheel being still on fire, the station-master 
 desired the driver to stop at Whittlesea and grease it again. The 
 driver, however, did not stop, as directed ; and shortly afterwards the 
 wheel broke down, and the truck was broken to pieces, and one of the 
 plaintiff's horses killed and others injured. Plea the sixth to second 
 count alleged that the plaintiffs did not deliver, nor defendants receive 
 the horses to be carried mode ct forma. At the trial, before Erie J., 
 it appeared that the horses were placed in trucks at New Holland ; and 
 at the time a ticket was signed by the plaintiff Davis, on behalf of the 
 plaintiff Austin, who could not write. The ticket Avas indorsed as 
 follows — 
 
 " This ticket is issued subject to tlie owner s undertakinc/ to lear all the 
 risk of injury hij conveyance and other contingencies ; and ths owner is 
 required to see to the efficiency of the carriage lefore he allows his horses 
 or live stock to de jdaced therein, the charge being for the me of the 
 railway carriages and locomotive power onlg. The Gompang will not 
 be responsible for ang alleged defects in their carriages or trucks unless 
 complaint be made at the time of booking or before the same leave the 
 station ; nor for ang damages, however caused, to horses, cattle, or live 
 stock of ang description, travelling upon their raihvay or in their 
 vehicles. I have examined the carriages, and am satisfied tvith their 
 sufficiency and safetg. {Signed) Austin. 
 
 {Owner, or on the owner'' s behalf).''^ 
 
 Evidence was given in support of the allegations in the declaration. 
 It also appeared that twenty-one horses were sent, and that if the 
 horses had been sent in regular horse-boxes the price of conveyance 
 would have been £50, whereas they had only cost by the truck con- 
 veyance £22 lOs. The jury found that the accident was occasioned 
 by the fire, and that there Avas negligence on the part of the company 
 in proceeding with the carriages. The learned judge directed a verdict 
 to be entered for the defendants on the issue on the sixth plea, reserving 
 leave to move to enter a verdict for the plaintiffs. A verdict was also 
 found for the defendants on issues upon pleas to the first count. Dam-
 
 23S ACCIDENT TimOUGII GROSS NEGLIGEKCE. 
 
 ages were assessed contingently ; and a rule ;;/.s/ was obtained to enter 
 a verdict for the plaintifls on the issue on the sixth pica, and for judg- 
 ment non obstante veredicto, which was not confined to any particular 
 plea. The Court of Queen's Bench held that the traverse taken by the 
 pleii was material, and that the verdict should stand. Erie J. said : 
 " It will be seen that the charge of negligence arises from the defend- 
 ants standing in a certain situation, that of bailees. The foundation of 
 the declaration is the bailment. Now negligence is a matter of degree ; 
 what is negligence under one baihnent is not negligence under another. 
 The bailment, therefore, should be carefully stated. It may be on the 
 terms that the bailee shall carry safely ; he is then a sort of insLU'er, It 
 may be on the terms that he shall take such care as the owner would 
 reasonably take; he is then bound to take reasonable care. It may be 
 on the terms that he shall be discharged from all responsibility as to the 
 sufficiency of the means of conveyance ; and that is clearly the present 
 case. An ordinary ticket would be simply an engagement for the 
 carriage of the animals ; here the ticket contains a contract for the 
 carriage on the terms of conveying for a lower remuneration, but with- 
 out any liability for accidents arising in the course of the conveyance. 
 The plaintiffs knew the terms. On the face of this record the breach is 
 of a duty, founded on a contract which is traversed, and not proved. 
 Had it been alleged that the damage accrued from the wheel taking fire, 
 and that the defendants undertook that the means of conveyance should 
 hold good, that allegation of responsibility would have been traversed." 
 A case was re-tried between the same parties, to recover damages for 
 the loss of one horse, which was killed in the manner described in the 
 first action ; and the declaration alleged that i/ie accident was entirely 
 occasioned l)ij the cjross negligence and gross misconduct of the plain tijfs, 
 and also contained a count in trover. To this the defendants pleaded, 
 first, Not guilty, to the whole declaration ; secondly, to the first count, 
 that the injury was occasioned by conveyance and other contingencies 
 within the true meaning of (he ticket; and thirdly, to the firsc count, 
 that the defects existed in the truck when the horse was placed in it. 
 It was argued for the defendants that the ticket being the contract on 
 which they received the horses, they were by its express terms exempted 
 from all responsibility for damage of whatever kind, and however 
 arising, which horses, &c., might encounter during the journey ; 
 while the plaintiffs submitted that the facts })rovcd exhibited such 
 a degree of gross negligence on the part of the Company's servants 
 as to remove from them the protection of the notice. Jcrvis C.J. 
 strongly inclined to the latter opinion, and so told the jury, intimating 
 at the same time that the question whether sucli negligence entitled
 
 UNANIMOUS JUDGMENT IN FAVOUR OF IIAILWAYS. 2o9 
 
 the plaintiffs to a verdict was upon the record. The jury found that 
 the servants of the Company had not exercised due care ; and they 
 accordingly returned a verdict for the plaintiff, but the rule for arrest- 
 ing the judgment was made absolute. Cressivdl J. in delivering the 
 judgment said: "The declaration appears to have been drawn with the 
 greatest care, to avoid the objection upon which the decisions in Shaw v. 
 The York and North Midland Railway Companij and this case pro- 
 ceeded, and to lead to the supposition that there was some duty cast 
 upon the defendants beyond that which arose out of the special con- 
 tract made between them and the plaintiffs. But after all the allega- 
 tions as to the usual and known course of business practised and olj- 
 served by the defendants, the plaintiffs find themselves obliged to aver 
 that their horses were delivered to the defendants to be carried accord- 
 ing to the usual and well-known course of business so practised and 
 observed, cxccj)! so far as the same was altered or qualified by certain 
 terms expressed in a note or ticket then by the defendants prepared 
 and produced to the plaintiffs." "The question still turns on the 
 contract, which in express terms exempts the Company from responsi- 
 liility for damages, however caused, to horses, &c. In the largest sense, 
 those words might exonerate the Company from responsibility even for 
 damage done wilfully, a sense in which it was not contended that they 
 were used in this contract. But giving them the most limited meaning, 
 they must apply to all risks of whatever kind, and however arising, to 
 be encountered in the course of the journey ; one of which undoubtedly 
 is the risk of a wheel taking fire, owing to neglect to grease it. 
 Whether that is called negligence merely, or gross negligence, or culpable 
 negligence, or whatever other epithet may be applied to it, we think it 
 is within the exemption from responsibility provided by the contract ; 
 and that, such exemption appearing on the face of the declaration, no 
 cause of action is disclosed, and that judgment must be arrested." 
 
 This decision in favour of ihe raihvaijs tvas referred to and confirmed 
 on the day of its delivery by the Exchequer in Carr v. The Lancashire 
 and Yorkshire Railway Company, and thus the three Courts were 
 unanimous. The facts of the latter case were as follows : The plaintiff 
 delivered to the defendants a horse to be carried from Wakefield to 
 Knottingley, subject to the following conditions at the foot of a certain 
 ticket — • 
 
 " This ticket is issued suhject to the owner's undertaking all risks of 
 conveyance tvhatsoever, as the Company will not le responsible for any 
 injury or damage {hoivsoever caused) occurring to live stock of any de- 
 scription travelling upon the Lancashire and Yorkshire Railway, or in 
 their vehicles."
 
 ~iO COLLlStON OX RAILWAY. 
 
 The horsc-hox was propelled against certain trucks, and the horse 
 was so seriously damaged that he died. At the trial, the jury found 
 that the accident was caused by the gross negligence of the defendants, 
 and returned a verdict for the plaintilf with £87 damages. A rule Jiisi 
 to arrest the judgment was made absolute, Ftatt i>. diss. During the 
 argument, tlie Court was informed that the Common Pleas had held the 
 declaration in Austin's case insullicient. After verdict, Par/ce B. said ; 
 '• I am of opinion that by entering into this contract, with reference to 
 the subject-matter, the owner has taken upon himself all risk of con- 
 veyance, and that the railway company are bound merely to find car- 
 riages and propelling power. The contract appears to me to amount 
 to this : The company say tliey will not be responsible for any injury 
 or damage, Jtonr/'er caused, occurring to live stock of any description 
 travelling upon their railway. This, then, is a contract, by virtue of 
 wliich the plaintilf is the party to stand all risk of accident and injury 
 of conveyance ; and certainly when we look at the nature of the thing 
 conveyed, there is nothing unreasonable in this arrangement. In the 
 case just decided by the Common Pleas, the language of the contract 
 was slightly different from the present. There the ticket was issued, 
 'subject to the plaintiffs undertaking to bear all the risk of injury by 
 conveyance and other contingencies ; and the plaintiff was required to 
 see to the efficiency of the carriages, and the defendants were not to be 
 responsible for any damage caused to horses,' &c., travelling upon the 
 railway. In that case the accident was occasioned by the wheels not 
 being properly greased : in the present case, the carriage that contained 
 the plaintiflfs horse was driven against another carriage. For the pur- 
 poses of this decision, the two notices may be considered as in effect 
 the same. It is not for us to fritter away the true sense and meaning 
 of these contracts, merely with a view to make men careful. If any 
 inconvenience should arise from their being entered into, that is not a 
 matter for our interference, but it nuist be left to the legislature, who 
 may, if they ])leaBe, put a stop to this mode whicli tlie carriers have 
 adojjted of limiting their liability. We are bound to construe the words 
 used according to their proper meaning, and according to the true 
 meaning and intention of the parties, as here expressed. I am of 
 opinion that the defendants are not liable." 
 
 The Great Northern Raihraij Company (appellants) v. Morvitle (re- 
 spondent) was decided -within a few days of the above two cases. The 
 plaintiff in it, who was a veterinary surgeon and horse-dealer at Wake- 
 field, had been to Homcastle fair, and on the 14th of August, 1851, 
 brought a horse he had purchased to the Kirkstead station of the above 
 railway, and signed a horse ticket with this indorsement : —
 
 HOUSE INJURED IN COLLISION. 241 
 
 " This ticlcet is issued suljcct to the owncfs underlaldng to hear all the 
 rlslc of injury tjy conveyance and other continyencies, and the owner is 
 required to see to the efficiency of the carriaye lefore lie atlows his horses or 
 live stock to he placed therein; the charye leiny for the use of the railway 
 carriayes and locomotive jmwer only. The com^jany will not he resjwnsihle 
 for any alleged defects in their carriayes or trucJrs, unless convplaint he 
 made at the time of hooldny or hefore the same leave the station, nor for 
 any damayes, however caused to horses, cattle, or live stocJc of any descrip- 
 tion travelling upon their railway or in their vehicles." — " / Juive examined 
 the carriayes, and am satisfied with their efficiemy and safety. 
 " (Siyned) John Morville. 
 
 [Ou:ner, or on the owner's account.] " 
 
 The clerk then handed to the plaintiff what he, the plaintifF, understood 
 to be a duplicate of the ticket signed by him in the book, but which 
 did not contain that part relating to the efficiency of the carriages. 
 The duplicate was not signed by the plaintiflF ; it Avas identically the 
 same as the ticket signed in the book, if that ticket had terminated 
 with the word " vehicles." WheA the train arrived at Knottingley 
 the horse-box containing the plaintiffs horse was detached from the 
 London train and shunted upon the Wakefield line by the servants of 
 the defendants, in order to be attached to another train proceeding to 
 Wakefield, and in so doing a concussion tooJc place hetween the horse- 
 hox and a truck or carriaye on the Itztier line, -which caused the injury 
 that the horse, on the arrival of the train at Wakefield, was found to 
 have sustained. The judge of the Pontefract County Court ordered the 
 verdict to be entered for the plaintiff, and assessed the damages at £21. 
 He, however, expressly found that the injury done to the horse had 
 not been caused by any misfeasance, wilful misconduct, or gross negli- 
 gence *on the part of the defendants or their servants, but w-as the 
 result of the want of due care only in shunting the horse-box at Knot- 
 tingley, as above stated. The question for the Court of Queen's Bench 
 was, whether the defendants upon the construction of such ticket were 
 protected from their liability to pay for the damage so occasioned ; and 
 Coleridge and Erie JJ., the only judges present, held they were, and 
 allowed the appeal. Erie J. said: "It is perfectly clear that the 
 defendants undertook to carry the horse upon the terms that they were 
 not to be responsible for damages that might happen to it. The con- 
 sideration for the plaintiff assenting to the agreement was, the carriage 
 of the horse by the defendants on the payment of the fare. Whether 
 the plaintiff had signed the paper, or whether the clerk had mentioned 
 the terms, or whether the latter had delivered to the plaintiff a ticket
 
 242 EAILWAY AND CAXAL TEAFFIC ACT. 
 
 saying what the terms were, there would have been in each case good 
 evidence of an agreement between the parties. The 4th section of tlie 
 Carriers' Act (11 Geo. IV. and 1 Will IV. c. ^^) provides that public 
 notices should no longer be of avail. It used to be a constant 
 question whether knowledge of a public notice was brought home to 
 the party sending the things to be carried : to prevent which question 
 the above proviso was made in the act. But that section does not 
 afl'ect section G, by which every carrier is left free to make a special 
 agreement with the party sending goods. Assuming the defendants 
 to be common carriers in the widest possible sense, I think that is a 
 special contract under section G, and that the defendants are protected 
 by it." 
 
 The RaUwaij and Canal Traffic Act {11 & 18 Vict. c. 31) came into 
 operation in July, 1854. It was enacted by section 7 that every rail- 
 way or canal, or railway and canal company, " shall be liable for the 
 loss of, or for any injury done to any horses, cattle, or other animals, 
 or to any articles, goods, or things, in the receiving, forwarding, 
 or delivering thereof, occasioned by the neglect or default of such 
 company or its servants, notwithstanding any notice, condition, or 
 declaration made and given by such company contrary thereto or in 
 any wise limiting such lialjility, every such notice, condition, or declara- 
 tion being hereby declared to be null and void : Providetl always tliat 
 nothing herein contained shall he construed to 2^revent the said companies 
 from malting such conditions with resj^cct to the receiving , forwarding, and 
 delivering of any of the said animals, articles, goods, or things, as shall he 
 adjudged hy the Court or judge lefore whom any question relating thereto 
 shall he tried to he just and rcasonahle." The section further declares 
 that the company are not to be hable beyond a limited amount, to wit, 
 £50 for a horse, £15 per head for neat cattle, £2 per head for sheep or 
 pigs, unless the value is declared at the time of the delivery, and .an 
 extra payment made, proof of the value to lie on the person claiming 
 compensation ; and no special contract is to be binding unless signed 
 by him, or the person delivering such animals, articles, goods, or things 
 respectively for carriage. 
 
 This section underwent much discussion in the Court of Common 
 Pleas in Simons v. The Great Western JRailuwj Company. It is for 
 the Court to say, iqwn the ivhole matters hrougld lefore them, U'hether or 
 not //(c " condition " or "special contract" is just and reasonahle (ih.). 
 A condition " that no claim for damage will be allowed unless made 
 within three days after the delivery of the goods, nor for loss, unless 
 made within three days of the time that they should be delivered," is 
 just and reasonable (ih.) ; and so is a condition that in the case of
 
 JUST AND REASONABLE CONTRACT. 243 
 
 goods conveyed at special or mileage rate, the company will not be 
 resj)onsible for any loss or damage, however caused (ib.). But a condi- 
 tion that the company will not be accountable for the loss, detention, 
 or damage of any package insufficiently or improperly packed, is unjust 
 and unreasonable {ib.). In The London, and North Western Railway 
 Company (appellants) v. Dunliam (respondent), where the respondent 
 had sustained considerable injury, owing to his meat not having been 
 forwarded and delivered in London in time, and the risk note which 
 was signed by him when he delivered the meat at the railway contained 
 this notice — " Hay and straw, furnifure, glass, marble, china, castings, 
 and other brittle and hazardous articles, &c., conveyed at the risJc of 
 the oicners" — the Court held that as the circumstances under which 
 the contract was made, or the nature or reason of the particular risk 
 were not disclosed, they could not come to any conclusion as to whether 
 or not the contract was ''just and reasonable " under the statute. 
 
 Andjw Jcrvis C.J. : "The result seems to be this : A general notice 
 is void, but the company may make special contracts with their cus- 
 tomers, provided they are just and reasonable, and signed ; and whereas 
 the monopoly created by railway companies compels the public to employ 
 them in the conveyance of their goods, the legislature have thought fit 
 to impose the further security, that the Court shall see that the condi- 
 tion or special contract is just and reasonable." 
 
 In Pcalce v. The North Staffordshire Railway Company, the Court of 
 Queen's Bench had to decide on the construction of the 7th section. 
 The plaintiff sued for the loss of his goods, which were delivered to the 
 defendants to carry. The defendants pleaded fifthly, that the goods 
 were delivered and received under and subject to a certain just and 
 reasonable condition, made by the defendants, and assented to by the 
 plaintiffs with respect to the receiving, forwarding, and delivering the 
 said goods (viz., that they would not be responsible for loss or injury to 
 them unless declared and insured according to their value), and went on 
 to set out the condition, and to aver that the state of things had arisen, 
 Avhich by that condition exempted them from liability, in respect of the 
 loss of the goods. There was no allegation that the assent of the 
 plaintiff was in writing. The jury, in answer to questions from Erie J., 
 found that there had been no wilful default or neglect on the part of the 
 defendants, and that there had been no negligence if the goods had been 
 of an ordinary kind, such as granite and not marble chimney-pieces ; 
 and on this finding the learned judge held that the condition was 
 reasonable, and directed the verdict to be entered for the defendants, on 
 the fourth and fifth pleas, with leave to move for judgment non obstante 
 veredicto on both pleas. The Court was divided in opinion. Lord
 
 244 COURT TO DECIDE WHAT IS JUST AND TREASONABLE. 
 
 CampheU C.J. and Crompton J. considered that "condition" (when 
 assented to) and " special contract " meant in fact the same thing, and 
 that nnder the statute the assent to the condition must be in writing, 
 else the " special contract " constituted by the condition, and the assent 
 thereto, is void. Erie J., on the other hand, thought that "conditions" 
 are diflPerent from "special contracts," and that the railway company 
 may still protect themselves by such "conditions" as the Court may 
 think reasonable; while "special contracts"— direct express bargains 
 between the parties — were alone required to be signed by the parties 
 thereto. According to the majority of the Court {Coleridge J. also gave 
 judgment) both "condition" and "special contract" are void, unless 
 they fulfil the two requisites, first of being such as find approval in the 
 sight of the Court or the judge, and secondly of being signed. Ac- 
 cording to Eric J., "a condition" is sufficient to protect the company if 
 it be reasonable in the opinion of the judge ; and " special contract," 
 whether reasonable or not, or whether thought so or not by the judge, 
 binds the parties if they have signed it. 
 
 Among the cases tried since the act were Wise v. The Great Western 
 Railway Comimn]], and Pardington v. The South Wales Railicag Com- 
 2mny. The circumstances of both these cases were peculiai-, as in the 
 former there was not only carelessness on the part of the sender, lut the 
 railway officials hcul shunted a horse-hox to a siding out of the way all 
 night, ivithout even observing that there teas a horse inside; and in the 
 latter the drover, ivho went free with the cattle, did not look at them in the 
 course of the journeg. 
 
 In Wise V. Tlie Great Western Railway Company, the horse had been 
 hired from the plaintiff, a job-master residing at Eton, by one Johnson, 
 who sent it fi-om the Newbury station on Saturday, the 31st of March, 
 directed to the plaintiff at Eton. The directions were written on labels, 
 and tied one to the bridle, the other to the saddle. It started by the 
 train from Newbury at 40 minutes past 2, and should have been de- 
 livered at the plaintiff's stables at Eton at 5 o'clock the same afternoon. 
 It did not arrive, and the plaintiff had no information whatever as to its 
 having been sent until the next morning, when Johnson wrote him by 
 post, thus — 
 
 "Emborne, March 31. 
 "Mr. Wise, — I wrote a letter, intending to send it with the horse, 
 but forgot to take it down to the station. We send you back the horse 
 to-day, instead of Monday : so in case you require him he will be all 
 ready for hunting on Monday, &c. " W. S. Johnson." 
 
 On reading this letter, the plaintiff made inquiries respecting the horse
 
 CASE OF HORSE LEFT IN SIDING. 245 
 
 at the Windsor station, but the parties stated there was no horse at the 
 station, and that none had been sent there. The plaintiff persisted 
 that the horse was there, and it was at length discovered on a siding 
 in the horse-box in which it had come from Newbury, tied up by the 
 head for nearly 24 hours, without food or water, and exposed in au 
 elevated situation to a cold north wind. Johnson had signed the fol- 
 lowing document : 
 
 '^ Mr. Wise: paid for one Jiorse 125. 6f?.; 9| train Newlury to Wind- 
 sor. Notice: The directors will not lie answerable for damage done to any 
 horses conveyed by this railway. — / ayrce to abide by the above notice. 
 
 " W. S. Johnson." 
 
 The plaintiif lived three-quarters of a mile from the station at Windsor. 
 Sometimes the company sent up horses to his stables, but no regular 
 course of dealing was proved. If a horse was sent, the plaintiff paid 
 the man for bringing it, but in general he sent to the station for his 
 own horses. Pollock C.B. directed the jury to find a verdict for the 
 defendants, reserving leave to the plaintiff to move to enter a verdict 
 for £20, the Court to be at liberty to amend the pleadings in any way 
 which might be necessary to raise this question. The Court confirmed 
 the ruling, and Pollock C.B. said : " There can be no doubt whatever 
 that the person who hired the horse was himself the real cause of all 
 the mischief. The railway company may to a certain extent have been 
 blameable ; but the person who produced the mischief was the sender 
 of the horse, who sent it without having forwarded any letter to inform 
 the plaintiff that it was coming, and without any groom or person to 
 attend it on its journey. One of the witnesses stated that it was the 
 usual and proper course for an intimation to be sent, and for somebody 
 to come and meet horses sent by train, at the end of the journey. If 
 that had. been done, the horse would have been taken care of, and no 
 mischief would have happened. This action appears to us an attempt 
 to throw upon the railway company, who are certainly not free from 
 blame, the responsibility for an injury which in reality was occasioned 
 by the person who sent the horse ; but we think that the mischief was 
 covered by the terms of the note in writing, and that the horse having 
 been accepted under a special contract, by which the railway company 
 were not to be liable for any damage which might be done to it, that 
 any injury which might happen to it, while remaining at the station 
 till somebody came and made au application for it, must be considered 
 as part of the risk of sending it from one place to another." The 
 rule was therefore discharged. 
 
 The following were the principal features of Pardinyton v. The South
 
 246 CATTLE SUFFOCATED IN CLOSE VAN. 
 
 Wales Railway Comjjany : On the 11th of March, 1856, one Morgan, 
 a cattle dealer, wishing to send 33 head of cattle, the property of the 
 plaintiff, from Newport to Gloucester, wrote to the superintendent of 
 the Newport station, requesting him to have two or three cattle trucks 
 ready for the following day. When he brought the cattle to the station 
 the superintendent showed him the carriages in which the cattle Avere 
 to go, Avhich were vans closing with lids, generally used for the con- 
 veyance of salt. He made no objection to the vans, and the cattle 
 were placed in them, to be forwarded to Gloucester, the lids being 
 open when the train left Newport. The contract ticket was indorsed 
 — " A pass for a drover to ride with his stock will be given for every 
 10 beasts, 30 calves, 75 pigs, or 100 sheep. All carriage must be 
 prepaid, &c., and the stock will only be conveyed on the following 
 conditions : The comjMJiy is to he held free from all risk or resjmnsihiUiy 
 ill resj)cct of any loss or damaye arisiny on the loadiny or imloadvny, from 
 suffocation, or from heiny tramj^led on, hrulsed, or otherwise injured in 
 transit, from fire, or from any other cause ivhatsoevcr. The comjjcmy is 
 not to he held resjmisihle for carriaye or delivery within aiiy certain or 
 definite time, nor in time for any j^articular markets " The form below 
 is to be filled uj) and signed by the party desiring to send cattle." 
 " And unless this and all the following rules be complied with, the 
 cattle will not go forward." 
 
 "March 12, 1856. 
 
 " To Messrs. , the South Wales Railway Company. 
 
 " In conformity to the above regulations with regard to the convey- 
 ance of cattle and live stock, I request that two trucks may be ready 
 at the Ne^A^iort station, in which I may load 33 cattle, to be conveyed 
 from Newport station to Gloucester, on the conditions above men- 
 tioned. "(Paid) £2 5 
 "(Signed) Thomas Morgan, Sender." 
 
 The plaintiff's servant in charge of the cattle received a free pass from 
 the company. He travelled in the same carriage with the guard, and 
 did not get out to look at the cattle during the journey ; but on arriv- 
 ing at Gloucester he heard them make a noise, and found that the lid 
 of one of the vans had become closed, and that out of sixteen oxen in 
 it ten were dead or dying from suffocation, and four very much injured. 
 Some evidence was given to show that the lid could not have become 
 closed by the motion of the train, but must have been purposely shut 
 down by the servants of the railway company. Alder son B. asked the 
 jury whether they thought that the cattle were suffocated during the 
 transit ; and the jury having found that they were, his lordship directed
 
 REASONABLE PROVISIONS FOR SAFETY OF CATTLE. 247 
 
 a, verdict to be entered for the defendants, giving leave to the plaintiff 
 to move to enter a verdict for £135, if the Court thought the conditions 
 were unreasonable. 
 
 The Court refused a rule, and considered that the driver had the 
 means of knowing whether the cattle could travel safely in the carriage 
 provided for them. He had no right to acquiesce in what was done, 
 and take no trouble to look after the cattle on the journey, and then 
 throw the responsibility on the company. And ^per Bramivell B. ; "I 
 think the question of reasonableness does not arise ; and that the 
 meaning of the Act 17 & 18 Vid. c, 31, s. 7, is that companies shall 
 be liable for injuries to any cattle occasioned by the neglect or default 
 of the company or its servants, notwithstanding any notice, condition, 
 or declaration limiting such liability, but that in each case particular 
 bargains may be made. It has been suggested that a railway company 
 might have made any conditions with respect to the carriage of cattle, 
 because they are not compelled to carry them. Assuming that the 
 question of reasonableness does arise, the stipulations in the present 
 case appear to me to be reasonable. The company say they do not 
 choose to be liable for accidents occasioned by the negligence of per- 
 sons who have the care of cattle ; and as in the nature of things such 
 accidents are likely to occur, they will not undertake the risk, but allow 
 the owners' servants to travel free in charge of the cattle. If the sender 
 is dissatisfied he should object, or pay something additional for the 
 extra risk." Ilartui B. : "I am of the same opinion. I am well 
 aware that the case put by the plaintiff's counsel seems hard — that 
 where there has been neghgence, a person injured by it should not 
 recover. But it is necessary to companies that they should have power 
 to make reasonable provisions for their own protection ; and it seems 
 to me especially reasonable that when animals are sent by railway such 
 provisions should be made. If any servant of the company had done 
 the act which caused this mischief, he would have been responsible. 
 Here, however, it was apparently a mere accident ; besides, there was 
 a written contract for the conveyance of these cattle, duly signed as pro- 
 vided by the act. People who make such contracts are bound by them." 
 
 The last case of this kind was M'3Ianus v. The Lancashire and 
 Yorlcshire Railway Comj)anii, which was an action to recover damages for 
 injuries to three horses, which were delivered to the defendants to be 
 conveyed from Liverpool to York by their railway. The parties agreed 
 upon a written statement of facts, upon which the Court of Exchequer 
 was to give their judgment. It was in substance as follows : The horses 
 were delivered to be forwarded by a cattle truck from Liverpool to York 
 for reward ; and the defendants' servant provided a truck which, to all
 
 248 INJUIIY TO HORSES THROUGH DEFECTIVE TRUCK. 
 
 external appcnrauce, and so far as they knew, was sufficient for the 
 purpose. The plaintiff signed a ticket, which contained the following 
 memorandum : 
 
 " 71iis iiclcet is' issued suhjecf lo the oicnefs iindcrtahing all risirs of 
 conveyance, loading and unloading wMisoever, as the comjmng ivill not he 
 responsible for any injury or damage {hoivsoever caused) occurring to live 
 Steele of any description travelling upon the Lancashire and YorJcshire 
 Railway, or in their vehicles" 
 
 M'Manus, the owner, or some one on his behalf, agreed to the above 
 terms ; and the truck provided proved (as the fact was) to be insuf- 
 ficient for the safe carriage of the horses, and a hole was made in the 
 bottom of it, on the journey, by which the horses were injured. Two- 
 pence a mile was charged, being the regular charge for conveyance in 
 open trucks, under tickets in the above form, from the cattle station ; 
 whereas 4d, per mile was the charge for horses forwarded from the 
 passenger station, in horse-boxes under similar tickets. 
 
 The judgment of the Court was thus delivered by Martin B. : " We 
 arc of opinion that the cases cited in the argument decided, and must 
 govern, the present case. In Simons v. The Great Western Railway 
 Company, the Court of Common Pleas held that the 15th clause of 
 the notice of the Great Western Railway Company, viz., that ' goods 
 conveyed at special or mileage rate must be loaded and unloaded by 
 the owners or their agents ; and the company will not be responsible 
 for any risk of stowage, loss or damage, however caused, nor for dis- 
 crepancy in the delivery, as to either quantity, number, or weight, 
 nor for the condition of articles so carried, nor for detention or de- 
 lay in the conveying or delivery of them, however caused,' was reason- 
 able within 17 & 18 Vict. c. 31, s. 7. In Pardington v. The South 
 Wales Raihvay Company, the Court held that a memorandum relating 
 to live animals, that ' the company are to be held free from all risk 
 or responsibility, in respect of any loss or damage arising on the 
 loading or unloading, from suffocation or from being trampled upon, 
 bruised or otherwise injured in transit, from fire, or from any other 
 cause whatsoever,' was reasonable. It seems to us that those notices 
 are not more extensive than the one now in question, and that our 
 judgment must be, that the notice is reasonable. Then if that should 
 be so, tlie case of Chippendale v. The Lancashire Railway Company 
 further furnishes a direct authority that it extends to defects in the 
 trucks, and in that case the notice was the same as the present. The 
 jury had found that the truck was unfit and unsafe for the conveyance 
 of cattle, and that the damage was consequent upon it. Coleridge and
 
 DOGS WITHIN THE TllAFFIC ACT. 219 
 
 Erie JJ. held that the notice protected the company. The case is ex- 
 pressly in point, and we concnr in it. We think one of the risks of 
 conveyance of live cattle is the risk of their breaking the trucks or 
 boxes in which they are conveyed. We are able to decide this case 
 without referring to the second point made by the defendants, viz., 
 the alleged distinction between the liability of carriers as to the con- 
 veyance of horses and live stock, and ordinary goods; but should the 
 question ever arise, we think the observation which fell from Parlcc 
 B., in Carr v. The Lancashire and Yorkshire Raihcaij Conqjamj, is 
 entitled to much consideration. Our judgment will therefore be for 
 the defendants." The judgment of fhe Court Mow was reversed {Erie J. 
 diss.) in the Exchequer Chamber. 
 
 In giving judgment the Court said: "In order to bring the de- 
 fendants W'ithin the protection of the special contract, it is necessary 
 to construe it as including responsibility for loss occasioned, not only 
 by risks of whatever kind, directly incident to the transit, but also for 
 that occasioned by the insufficiency of the carriages provided by the de- 
 fendants, though occasioned by their own negligence or misconduct. 
 The sufficiency or insufficiency of the vehicles by which the company 
 arc to carry on their business, is a matter, generally speaking, which 
 they and they alone can and ought to have the means of fully ascertain- 
 ing ; and it would be, vre think, not only unreasonable but mischievous 
 if they were to be allowed to absolve themselves from the consequence 
 of neglecting to perform that which seems entirely to belong to them 
 as a duty. It is unrensonable that the company should stipulate for 
 exemption from liability from their ov.m negligence however gross, or 
 misconduct however flagrant, and this is what the condition under con- 
 sideration professes to do." 
 
 " Just and reasonable " condition tvith resjiecl lo a dog under the Traffic 
 Act. — A dog (although not specifically mentioned in the proviso as to 
 the limit of compensation) is within the 7th section of the Kailway and 
 Canal Traffic Act, 1854 (17 & 18 Vict. c. 31). The plaintiff delivered 
 to the defendants, a railway compau}^, a dog, to be carried, and signed 
 this ticket: "Received the annexed ticket, subject to the following con- 
 ditions : the company will not be liable in any case for loss or damage 
 to any horse or other animal above the value of £10, or any dog above 
 the value of £5, unless a declaration signed by the owner or his agent 
 at the time of booking shall have been given to them ; and by such 
 declaration the owner shall be bound, the company not being in any 
 event liable to any greater amount than the value declared. The 
 company will in no case be liable for injury to any horse or other 
 animal, or dog, of whatever value, where such injury arises wholly or
 
 250 CONDITION AS TO INSURANCE OF VALUABLE DOG. 
 
 partially from fear or restiveuess. If the declared value of any horse 
 or other animal exceed £40, or any dog £5, the price of conveyance 
 T\"ill, in addition to the regular fare, be after the rate of 2| per cent, 
 upon the declared value above £40, whatever may be the amount of 
 such value, and for whatever distance the animal is to be carried." The 
 value of the dog was £21, but the plaintiff made no declaration of its 
 value, and paid only the regular fare 3s. The dog escaped from the 
 train, and was lost without any negligence on the part of the defend- 
 ants, and the plaintiflp having sued the defendants for the loss, it was 
 held by Coclihurii C.J. and Blaclchuni J., first that the meaning of 
 this ticket, the whole of Avhich must be read together, was that if the 
 value of a dog was above £5, and its value was not declared, and the 
 extra price paid accordingly, the defendants would not be liable at all 
 even for loss or injury caused by their own negligence, and that the 
 condition was therefore Avithin 17 & 18 Vict. c. 31, s. 7 ; secondly, 
 that this condition was " not just and reasonable," inasmuch as the 
 extra charge of 2| per cent, (without proof to the contrary, which it lay 
 on the defendants to give) appeared excessive and unreasonable ; and 
 thirdly, that the condition being void, although there was no negligence 
 on the part of the defendants, the plaintiff was entitled to recover the 
 full value of the dog against them as common carriers. It was held by 
 Wightmcui J. that the different clauses of the ticket were separable ; 
 that the first condition meant that the defendants would not be liable 
 beyond £5 for injury, however caused, unless the value of the dog were 
 declared, and that this was a reasonable condition, and afforded a good 
 defence beyond £5, which sum the plaintiff was entitled to recover. 
 The verdict was directed to stand for £21. 
 
 Error was thereupon brought by the defendants to reverse tlie judg- 
 ment given by the Court of Queen's Bench for the plaintiff on a special 
 case : and it was held {diss. Wild B.), reversing the decision of the 
 Court below, that the plaintiff was not entitled to recover, Erie C.J. 
 and Kcaiiwj J. being of opinion that section 7 of 17 & 18 VicL 
 c. 31, Avas confined in its application to cases Avhere the loss or injury 
 Avas occasioned by the neglect or default of the company, and had no 
 bearing on such a case as the present, where the loss arose from pure 
 accident, and that the company Avere exempt from liability by the 
 terms of their contract. It was held further by Erie C.J., Williams J., 
 Channcll B., and Kealiiuj J., that assuming that the statute applied 
 to this case, the conditions in the ticket were reasonable and just, 
 and that they were not to be construed as meaning to exempt or as 
 having the effect of exempting the company from liability for loss 
 or injury occasioned by wilful misconduct on their part. And per
 
 ESTOPPEL BY FALSE STATEMENT OF OWKEK. 251 
 
 Erie C.J., it is for a jury not for the judge to say, -whether the per- 
 centage charged on the extra vahie declared in respect of any animal 
 is reasonable {Harrison y. London and Brighton and iSoufh Coast liail- 
 ivay Company). 
 
 Contract of carriage with first railway, and second not lialjle for 
 accident. — The plaintiff delivered cattle at a station of the Shrewsbury 
 and Hereford Eailway Company, to be conveyed to Birmingham, and 
 signed a contract note with that company one of the terms of which 
 was that the company would not be subject to liability for any damage 
 arising on other railways. The cattle were placed on a truck of defend- 
 ants, lying at the station, and were conveyed in it along the Shrewsbury 
 and Hereford line to Shrewsbury, and then on defendant's line to 
 Birmingham. Between Shrewsbury and Birmingham the cattle were 
 injured by the floor of the truck giving way, and it was held that as the 
 contract of carriage was with the Shrewsbury and Hereford Company 
 for the entire journey, the defendants were not liable {Coxon v. Great 
 Western Railway Company). 
 
 Crowdiny cattle witJiout leave into trucJc with another owner's. — Marlin 
 B. ruled that an action was maintainable by a person who hired a 
 railway truck to put his nine cattle in, against another who crammed 
 his two cattle in and seriously injured the rest. The whole eleven 
 seem to have been bought together, but there was a false representation 
 by the defendant to the railway as to his right to have the truck {Raynor 
 Y. Childs). 
 
 Railway company must he sued within county court district of jjrincipal 
 pilace of business. — If a railway company injure a chattel (here a horse) 
 of the plaintiff in County Court district A, the company cannot be sued 
 for it in County Court district B, merely because it has a local station 
 in district B, at which passengers are booked and goods received for 
 carriage ; for a railway company does not carry on its business within 
 the meaning of the statute 9 & 10 Vict. c. 95, s. 60, at every place 
 where it has a station, but only at the principal office, where the 
 directors meet, and the general business of the company is transacted. 
 The case was decided on the authority of Taylor v. Crowland Gas 
 Company (11 Ex. 1, and 2i L.J. (N.S.), Ex. 233), and Adams v. The 
 Great Western Railway Company (30 L.J. (N.S.), Ex. 124), Skids v. 
 Great Northern Railway Company. 
 
 Estoppel iy wilfully false statement of value of horses at time of contract 
 for their carriage. — It was held by the Court of Exchequer, that the 
 plaintiff having made a wilfully false statement to a railway company, 
 as to the value of the three horses (stated to be less than £10 each) for 
 the purpose of inducing, and having thereby induced the defendants to
 
 252 CONDITIONS IMPOSED BY RAILWAYS MUST BE REASONABLE. 
 
 enter into the contract for their carriage, was not at liberty to show 
 their real value, in order to obtain compensation above the amount paid 
 into Court (£25). And scmhle that the declaration of the value of the 
 horses formed no part of the contract, and that even if it were part, 
 it did not render the contract a conditional contract ; and also that 
 the stipulation that the horses should be carried entirely at the owner's 
 risk was not unreasonable and void within the meaning of the 17 & 
 18 Vict. c. 31 {McCance v. London and Xorih Western Railivmj 
 Compamj). This case was confirmed by the Exchequer Chamber, 34 
 L.J. (N.S.) Ex 39. 
 
 The conditions imposed by a railway company on persons sending 
 cattle on their line must be reasonable, and if the conditions are un- 
 reasonable, the liability of the company is not removed by the fact that 
 . the company under a second condition grants, and the owner of cattle 
 accepts, a free pass for a person who travels with the cattle. Booth v. 
 Xorth Eastern Railway Comiiany (2 L.E. Ex. 173). 
 
 In Gill V. Manchester, Sheffield, and Lincolnshire Railway Company, 
 (8 L.R. Q.B., 18G), the plaintiff delivered a cow at Doncastcr station on 
 the Great Northern Railway to be sent to Sheifield on the defendants' 
 line. The cow arrived safely at Sheffield, but when released from the 
 truck it ran wild, got on to the railway and was killed. The defen- 
 dants' servant released the cow from the truck against the advice of the 
 plaintiflF's servant who was in charge of the cow. The Court having 
 })Ower to draw inferences of fact, held that the action was rightly brought, 
 inasmuch as the Great Northern became agents of the defendants in 
 making the contract to carry the cow. Secondly, that the condition in 
 the contract did not relieve the defendants from liability for negligence 
 on the part of their servants in delivering the cow. Thirdly, (by 
 Blacldnirn and Lvsh J. J., Ilellor J. diss.), " That the inference to 
 ha drawn from the facts was that there was negligence on the part of 
 defendants' porter, and that they Avcre therefore liable to the plaintiff 
 for the loss of the cow. See also Bhiwcr v. Great Western Railway 
 Company (7 L.E,. C.P. G55), Kendall v. South Western Railway Com- 
 pawj (7 L.R. Ex. 373), and Rooth v. North Eastern Railway Company 
 (2 L.R. Ex., 173). 
 
 In the case of Kendall v. London and Sontli Weatern Railicay Company, 
 the plaintiff delivered a horse saddled and bridled at Waterloo to be 
 sent to Ewell. The horse Avas boxed at AVaterloo under the supervision 
 of the plaintiff. No accident of any kind occurred to the train and the 
 horse was proved to be a quiet one, but on its arrival at Ewell it was 
 found to be much injured : held by 3fartrn and Bramwell BB., Piyott 
 B. diss., that the defendants were not liable, as there was no evidence
 
 CATTLE-DEALEllS TEAVEL AT THEIR OWN PJSK. 258 
 
 of negligence on their part, and it was to be inferred that the injuries 
 resulted from the action of the horse itself. 
 
 In the case of Wright v. London and North Western Railway Company 
 (10 L.E,. Q.B. 298), the plaintiff sent a heifer by defendants' railway 
 to Penrith station. On tlie arrival of the train at the station, between 
 8 and 9 p.m., the horse-box in which the heifer had travelled had to be 
 shunted into a siding to be unloaded. There was only one porter 
 available to shunt the horse-box, and the plaintiff, who had travelled by 
 the same train, being desirous of getting his heifer away with as little 
 delay as possible, assisted in shunting the horse-box to the siding from 
 which alone the heifer could be unloaded, and while he was so doing 
 the horse-box was run into by a train which had been negligently 
 allowed to come out of the siding : and the horse-box was driven 
 against the plaintiff and injured him. There was evidence that it was 
 the practice at Penrith for persons to assist in unloading their cattle, 
 and that on this particular occasion the station-master had consented to 
 the plaintiff assisting in the shunting. It was held that the defendants 
 were hable for the injuries sustained by the plaintiff. 8ee also Holmes 
 V. North Eastern Railway (Law Rep. 4 Ex. 254, and L.R. G Ex. 123) ; 
 and in the case of Hall v. The North Eastern Railway (10 L.R. Q.B. 
 437), where the plaintiff booked some sheep from Angerton on the 
 North British Railway to Newcastle on the North Eastern, it was held 
 tliat the ticket under which plaintiff travelled meant that he should bo 
 at his own risk for the whole journey, and the defendants were not held 
 liable for injuries sustained by the plaintiff on their line and th-.ough 
 their negligence. 
 
 A cattle dealer who travels free of charge at his own risk cannot 
 maintain an action against a railway company on whose line he so 
 travels, for injury incurred either during the actual transit or while 
 leaving the company's premises. Gallin v. London ami North Western 
 Railway Company (10 L.R. Q.B. 212). 
 
 In the case of Tlie Great Northern Rail/cay v. Sariffield, the defen- 
 dant sent a horse from King's Cross to Sandy consigned to himself, the . 
 fare being prepaid. The horse arrived at Sandy at 10 p.m., and there 
 being no one there to receive him, the station-master sent the horse to 
 a livery stable near the station for safe custody. Defendant's servant 
 arrived soon after and demanded the horse ; he was referred to the 
 livery stable-keeper, who refused to give up the horse except upon 
 payment of charges admitted to be reasonable, the servant refused to 
 pay, and went away without the horse. On the following day the 
 defendant came and demanded the horse ; plaintiffs' station-master 
 offered to pay the charges and let the defendant have the horse j this
 
 2jt INJURY TO VALUABLE GREYHOUNt). 
 
 the defendant declined, and the horse remained at the livery stable. 
 The plaintiffs afterwards offered to deliver the horse to defendant at 
 Sandv, but the defendant refused to receive it nnless delivered at his 
 farm and with payment of a snm of money for his expenses and loss of 
 time. The horse remained at the livery stables till November, when 
 the plaintiffs paid the livery stable-keeper's charges and sent tlie horse 
 to defendant, who received it. The plaintiffs brought an action to 
 recover the amount of these charges, and the Court held that the defen- 
 dant was liable. 
 
 In the case of Hodrpnan v. Tlie West Midland Raihvay Comjiany, the 
 plaintiff sent a valuable racehorse under the care of a groom to the 
 station of defendants' railway at Worcester to be carried from Worcester 
 to liOndon. The horse while being led by the groom came in contact 
 with some sharp-edged girders situate in defendants' yard, and was so 
 injured that it became necessary to kill it. No declaration of value 
 had been made, nor had any ticket been taken, and it was held by the 
 Court, CocJcburn C.J. diss., that the plaintiff could not recover more 
 than £50 (33 L.J. (N.S.) Q.B. 233, and 35 L.J. (N.S.) Q.B. 85). 
 
 In the case of Grcfjory v. The West Midland Raihvay Company, the 
 Court of Exchequer upheld this decision, and decided that an owner is 
 not bound by conditions annexed by a railway company to their cattle 
 tickets which are neither just nor reasonable (33 L.J. (N.S.) Ex. 155). 
 3PMamis v. The Lancashire and Yorlrshire Railway Comjmny (28 L.J. 
 (N.S.) Ex. 353). Allday x. Great Western Railway Company (34 L.J. 
 (N.S.) Q.B. 5). 
 
 In the case of Richardson v. The North Eastern Railway Company (7 
 L.R. C.P. 75), the plaintiff sent a valuable greyhound to be carried by 
 the defendants. In the course of the journey it became necessary to 
 transfer the dog from one train to another, and while waiting for this 
 second train it was tied by the strip with which it had been sent by 
 plaintiff to an iron spout on the platform ; while so fastened the dog 
 slipped its collar, got on to the line and was killed ; held that as the 
 dog was fastened by means furnished by the plaintiff, there was no 
 evidence of negligence on the part of the company, and judgment was 
 given for them ; and in Bloiver v. The Great Western Railway Company 
 (7 L.R. C.P. G55), when the plaintiff sent a bullock to be conveyed by 
 the defendants, and the bullock, by its own efforts and exertions, 
 escaped from the truck in which it was being carried, and was killed, it 
 was held that the defendants were not liable. 
 
 In reyard of delay in forivardiny cattle to marlcet, the decisions liave also 
 hcen ofjainst the senders. Of this class of cases was The TorJf, Newcastle, 
 and Beri'.'icJc Railway Company (appellants) v. Crisp and Logan (respond-
 
 DELAY IN FOEWARDING PIGS. 255 
 
 ents). The respondents were cattle-jobbing partners, and tlie appellants 
 railway carriers from Alnwick to Newcastle. Alnwick fortnightly fair 
 is held on a Monday, and a weekly one at Newcastle on a Tuesday, 
 when the market is nominally open from 5 a.m. till 3 p.m., but is 
 l^ractically ended between 10 and 11 a.m. On the 28th of November, 
 1853, the respondents and one Logan brought some sheep and pigs, of 
 a portion of which they were joint owners, to the Alnwick station, in 
 order to ofiPer them for sale at Newcastle early the next morning, and 
 engaged 2^ trucks for sheep and half a truck for pigs. For this they 
 paid £2 4s. 3d., and certain tickets were given out before half-past 
 three p.m. Evidence was given by the appellants of the ticket having 
 been furnished to Crisp, on the back of which was this, among other 
 conditions — 
 
 " TJiCit the coirqMny he not rcsponsiJjle for tlie non-dcJivcrij of tlie 
 stock within any ceiiain or reasonaNe time, nor in time for any par- 
 ticular marJcet ; nor are they o'eqnircd to forward ly any particular 
 train." 
 
 There were no disengaged trucks at this time, as the respondents 
 knew ; and after waiting several hours, the station-master franked the 
 respondents to Newcastle (instead of leaving them to come with the 
 usual cattle-train passes), and assured them that the sheep and cattle 
 would follow the same evening. Logan and a servant were left behind 
 with the cattle; and seeing no trucks forthcoming, demanded back 
 their money, which was refused. The former waited fruitlessly for 
 trucks till one in the morning, and then went away, leaving a servant 
 with the cattle, which were put into the coal depot. At four o'clock 
 the cattle were forced into some filthy waggons, and did not reach New- 
 castle market till 11 a.m., when the market was over. They were so 
 reduced by hunger that some of them died, and the rest were rendered 
 unsaleable up to the time of the trial. Logan proved that whereas 
 he ought to have realized a considerable profit at Newcastle, he had 
 been offered 10s. less per head than he had given at Alnwick. The 
 station clerk of the appellants proved that he handed three tickets 
 to Logan, Crisp, and Thompson ; but he admitted that no copy or dupli- 
 cate was given, nor was it read to any of the respondents or Logan, nor 
 was the attention of any of them directed to the contents or meaning of 
 the tickets. 
 
 It was admitted that the tickets were returned to the appellants at 
 Newcastle, but the latter gave no evidence to explain the delay. The 
 judge of the Alnwick County Court did not direct the jury as to the 
 legal effect of the ticket, but asked them, first, Are the defendants 
 common carriers for hire? secondly, Did they receive the plaintiffs
 
 25 S CARRIAGE OF PIGS. 
 
 cattle as common carriers for hire, or under the sjoecial contract set 
 forth in the ticket ? and thirdly, Did the station-master further con- 
 tract that the trucks should be furnished soon ? If they found the 
 first question and the first part of the second question in the affirma- 
 tive, they were to say what damages the plaintiff had sustained. The 
 following were the terms of the verdict for the plaintiff: "The jury 
 find the damages to be £30; and that the company are common 
 carriers, and received the goods without any limitation of their 
 liability by any special contract ; and that the only special contract 
 was the subsequent promise of the station-master that the trucks 
 would be ready soon." The Court ordered a non-suit to be entered ; 
 Jem's C.J. intimating that Austin v. The Manclicsicr, Bltcffield, Jc 
 Lincolnshire Raihcay could not be overruled, and that it was a mere 
 waste of time to argue against it. His lordship added : " There is 
 clearly a misdirection here. There was no evidence whatever that 
 the defendants were common carriers of cattle or live stock, or that 
 they had received the pigs in question as common carriers. The 
 judge should have told the jury distinctly that there was nothing 
 to justify them in finding that the pigs were received by the company's 
 servants to be carried upon any other terms than those contained in the 
 special contract." 
 
 This case was followed by Hughes v. The Great Western Railway 
 Company. On the evening of Tuesday the 9th of Xovember, 1853, the 
 plaintiff delivered at the company's station at Southall 20 fat pigs, 
 which were intended for the Birmingham market the next Thursday, 
 and was informed that they would go by a train which started at 3 
 o'clock the next morning. He signed a paper of conditions, part of 
 which were that " The Company is not to he held responsible for the 
 carriage or delivery within any certain or definite time, nor in time fur 
 any particular markets The pigs were sent by the 3 o'clock a.m. train 
 on the 10th of November, but did nut arrive at Birmingham in time 
 for Thursday's market, and so wasted, by want of food, in consequence 
 of having been so long in the trucks, that the plaintiff' sustained great 
 loss. The defendants proved that the goods train which left Southall 
 at 3 a.m. went no further than Didcot, where it ought to have arrived 
 at 7.30 a.m., and that the next goods train for Birmingham, by which 
 the pigs were forwarded, left Didcot at 5.30 p.m., the only other train 
 which passed through Didcot for Birmingham between those hours 
 being the express passenger train. It was further insisted that the 
 special contract excluded all question as to reasonable time, and that 
 the pigs were sent within reasonable time, inasmuch as they were sent 
 by the next practicable train. Jervis C.J. referred to Walker v. The York
 
 COMPLICATED PIG CASE. 257 
 
 Jt North Midland RaiUvay Company (a well-known case of fisli-sending), 
 and being of opinion that the pigs had been forwarded within a reason- 
 able time, and the plaintiflf's counsel expressing no dissent, nonsuited 
 the plaintiff. The rule for a new trial was discharged. 
 
 On the authority of this case Mr. Sergeant Channel nonsuited the 
 plaintiff in White v. The Great Western Railway Conijjany, which was an 
 action against that railway company for neyliyence in forwardiny a 
 quantity of cheese, whereby the plaintiff, a Somersetshire farmer, lost a 
 market at Bishopstoke. 
 
 Slim V. The Great Northern Railway Company was a somewhat com- 
 plicated pig case. The plaintiff had sent two lots, containing together 
 203 pigs, to the defendant's station at Hitchin, and they were duly 
 delivered in London. Six other pigs of the plaintiflf's were conveyed to 
 the station by one Lewis, who had 32 pigs of his own going to London. 
 For these latter Lewis procured the proper cattle ticket and consign- 
 ment note, but neglected to do so for the plaintiff's six, which he 
 delivered (as he stated) to one Morgan, a servant of the defendants, at 
 the station, who said he would take care of them. Plaintiff was cog- 
 nisant of the course of business at the station, which was, thac on the 
 arrival of live stock there, they were counted by one of the company's 
 servants, who made out and signed what is called a "consignment-note," 
 stating the number of the trucks and cattle, and the name of the con- 
 signor and consignee. This " consignment-note " was then signed by 
 the person bringing the stock, and taken to the booking-clerk, who 
 made out from it a " cattle ticket," which was signed by the consignor's 
 agent, who on receipt of a duplicate, paid the carriage, the duplicate 
 ticket being the authority to receive the cattle on their arrival at their 
 destination. The declaration set out the special contract indorsed on 
 the cattle-ticket, which threw the risk of injury, examination of car- 
 riages, &c., upon the plaintiff, and alleged as a breach that the defen- 
 dants did not carry and deliver the pigs within reasonable time. 
 
 There was also a count in trover. The defendants pleaded— first, 
 Not guilty ; and secondly, that the plaintiff did not deliver the pigs, 
 nor did the defendants receive the same to be carried upon the terms 
 and conditions alleged in the first count. It appeared that the pay- 
 ment for the carriage of the cattle was made sometimes at the station 
 at which they were received, and sometimes on their arrival at their 
 destination. At the close of the plaintiff's case the defendant's counsel 
 called upon the learned judge to nonsuit him, insisting that there was no 
 evidence to go to the jury that the defendants had contracted with the 
 plaintiff on the terms mentioned in the declaration ; and that assuming 
 their servant Morgan to have received the pigs in question, he had
 
 S5S PIGS TOO LATE FOR MARKET. 
 
 done so without their authority, and in direct violation of his duty 
 and the course of business at the station. WiUiams J. declined to 
 nonsuit, but left it to the jury to say whether or not Morgan had received 
 the pigs. They found that he had ; and his lordship thereupon directed 
 a verdict for the plaintiff for £14, the value of the six pigs : reserving 
 leave to the defendants to move to enter a nonsuit, if the Court should 
 think there was no evidence to go to a jury; and also reserving leave 
 to the plaintiff to amend the declaration, if necessaiy, it being agreed 
 that the only questi<m was whether or not the company had received 
 the pigs to be carried. 
 
 The Court of Common Pleas made the rule absolute ; and held that 
 the count in trover clearly could not be sustained, and that the first 
 count, whether in its original state or as proposed to be amended, was 
 not supported by the evidence. Jervis C.J. said : " According to the 
 course of business, of which the plaintiff was proved to be perfectly 
 cognizant, it was the sender's duty to get a consignment-note when he 
 delivered the pigs at the station, and that consignment-note gave him 
 distinct notice that the company would not hold themselves responsible 
 for the pigs, unless the same were signed for as received by their clerk. 
 Knowing this, the plaintiff sent the pigs in question by Lewis ; Lewis 
 handed them over to Morgan without more ado, and thus made Morgan 
 his servant for the purpose of doing what was necessary to put the pigs 
 in motion towards their destination. Morgan had no authority to con- 
 travene the regulations of the company, and I think they are not bound 
 by his act." In the course of the argument Maide J. observed that " If 
 Morgan had been the master or superintendent of the station, possibly 
 he might have had authority to do as he did. And it may be that the 
 company are liable if they place a man in a position to hold himself out 
 as having authority, though he may in some degree have exceeded his 
 duty. Morgan had, it appears, authority to go through some of the 
 preliminary matters to the making of the contract. It is not necessary 
 to show that he had full and perfect authority. It [is enough if there 
 was evidence to go to a jury." The same Court also held in Simons v. 
 2'he Great Wesfern Railway Comimny, that, wlmrc the ^laintif ivas 
 asked ly the clerh of the railway compan,y, when the goods were delivered, 
 to sign a j)aiwr containing a sjyecial contract, and he demurred, in con- 
 sequence of there not being light enough to read it by, but was told 
 that it was of no importance, and that his signature was a mere matter 
 of form, on the strength of which assurance he signed, the jury were 
 warranted in finding that the goods were not dehvered to the company 
 to be carried under the special contract. 
 
 It was held by Byles J. in Blakemore v. Lancashire and Yorkshire
 
 DELAY BY FALL OF SNOW. 259 
 
 Raihcay Company that carriers are hound to convey ivHh rcasonahk 
 eycj^jedilion, and if their course of business is inconsistent with that, it is 
 no answer to an action against them for damages arising from delay, 
 that they carried at the ordinary rate in which they conducted their 
 business. Here the potatoes were placed in the defendant's trucks on 
 a Tuesday afternoon, and ought in due course to have arrived at their 
 destination next day ; but did not do so till the Friday, as the line at 
 Wigan was, as was constantly the case, completely blocked up with 
 trucks, for lack of sufficient sidings, the consequence of which was that 
 the potatoes fermented and became rotten and worthless. 
 
 However, according to Briddon v. The Great Northern Railway Com- 
 pany, a carrier of goods and cattle is only hound to carry in a reasonahle 
 time, wider m'dinary circumstances, and is not hound to use extraordinary 
 efforts or incur extra expense in order to surmount ohstructions caused hy 
 the act of God, as a fall of snow. It appeared that the plaintiff" in this 
 case had received a ticket at Huntingdon on the terms that the com- 
 pany were not to be liable for any loss or damage arising from any 
 cause whatever during the transit, and that the beasts were put into 
 two cattle-trucks, subsequently attached to a heavy goods train. The 
 line from Nottingham was the defendant's as far as Grantham, from 
 which there was a branch to Nottingham, and on the day in question 
 there was a heavy snowstorm, which obstructed the latter part of the 
 line. The goods train to which the two cattle-trucks were attached was 
 very long, and on arriving at a station on the line to Grantham the train 
 was shunted to a siding, and the engine detached to add to a passenger 
 train which went on its way with this additional power, rendered neces- 
 sary by a fall of snow on the line hcyond Grantham. The plaintiff, who 
 went in the same train with the beasts, remonstrated with the station- 
 master, telling him that the cattle market at Nottingham was the next 
 day. Notwithstanding this, the goods train with the two cattle-trucks 
 attached thereto, was detained at the station thu-ty hours, during all 
 which time the cattle were deprived of food, and they were not for- 
 warded until next day, too late to save the market. In the meantime 
 all the passenger trains were kept running as usual. To send on the 
 goods train would have required additional engines ; but it appeared 
 that there was an unlimited supply of engines at Peterborough. The 
 plaintiff's case was that the defendant's servants were bound to obtain 
 additional engines, if necessary, to forward the goods train, or to send on 
 the two cattle-trucks by themselves. For the defendants it was contended 
 that they were not obliged to take either course, nor to use any extra- 
 ordinary efforts to send on the goods train ; but that it was enough for 
 them to show that by reason of the snow the train could not be reasonably 
 
 s2
 
 260 HIRE OF SACKS. 
 
 sent on with the orJinaiy engine power. Cockhurn C.J. held tliat the ques- 
 tion was whether the delay in forwarding these heasls was owing to the 
 negHgence or want of due expedition on the part of the company's 
 servants, or was it the unavoidable result of the state of the line, they 
 doing all that under the circumstances they were bound to do. The 
 jury found for the defendants, and the Court of Exchequer confirmed 
 such finding. And per Pollock C.B. : "The contract entered into was 
 to carry the cattle to Nottingham without delay, and in a reasonable 
 time, under ordinary circumstances. If a snowstorm occurs, which 
 makes it impossible to carry the cattle except by extraordinary efforts, 
 involving additional expense, the company are not bound to use such 
 means and to incur such expense." 
 
 The subject of the lending of sacks ly railway companies for the con- 
 veyance of grain on their lines was considered by the Court of Common 
 Pleas in The Great Northern Railway Company v. Wyles, in which the 
 plaintiff sought to recover £20 lis. bd. for the demurrage of sacks let 
 by them to the defendant. The sacks were hired subject to the fol- 
 lowing, among other regulations : — 
 
 " 2. The charges for the use of sacks will be ^d. per sack per 
 journey when discharged at any of the company's stations on the line ; 
 or at their warehouses, or at warehouses or mills connected by rail 
 with the company's line ; and Id. per sack when sent to foreign 
 stations. 
 
 " 3. Demurrage of ^d. per sack per week will be charged after the 
 expiration of fourteen days, the hire to commence from the time the 
 sacks leave the station to be filled ; the time allowed for filling and 
 returning to the station to be seven days. 
 
 " 10. None of the company's sacks containing grain will be allowed 
 to leave any station (local or foreign) unless a guarantee is first ob- 
 tained by the clerk in charge, from the consignee, that the grain will 
 be immediately discharged, and the sacks returned the same day, and 
 to the same station." 
 
 It was held that the company's claim for demurrage arose at the 
 expiration of fourteen days from the hire of the sacks ; and that the 
 only person with whom there was any contract for demurrage was the 
 consignor, by virtue of the 3rd regulation ; but that, by the operation 
 of the 10th regulation, his liability ceased upon the company's per- 
 mitting the sacks to get into the hands of the consignee, whether with 
 or without a guarantee. 
 
 The Great Northern and other Railways have recently issued fresh 
 regulations with regard to letting out sacks on hire, and the subject is 
 so important that the new regulations are given in full.
 
 TERMS AND CONDITIONS OF HIRING SACKS. 'Z(\] 
 
 The Great Norihmi Baihrmj ComjmvJ's Saris arc Unl on the 
 folloirhvj tcr^ns and conditions : — 
 
 1. Application for sacks on hire for the purpose of being filled, must 
 be made to the Clerk in charge of the Station from which they are to 
 be consigned for transit when filled, and they must in all cases be 
 returned to that particular station, otherwise the party hiring the 
 sacks subjects himself to the charge of one penny per sack, in addition 
 to any other charge that may be incurred. 
 
 2. Parties hiring sacks for the conveyance of grain (or seed) by rail- 
 way are allowed to have them four days for the purpose of filling 
 AND RETURNING to the station whence received, free of charge, subject 
 to the following condition : — If detained beyond four days, or if re- 
 turned to the station unused, or if returned full and not sent forward 
 by rail, demurrage will be charged at the rate of one halfpenny per 
 sack per week, such demurrage to commence from the date the sacks 
 are taken from the station to be filled, and continue in force till the 
 sacks are returned to the same station. 
 
 3. Sacks returned full to the station will be allowed to remain tw'O 
 DATS, FREE OF CHARGE, TO WAIT ORDERS. If detained at the station 
 beyond two days, demurrage at the rate of one halfpenny per sack per 
 week will be charged from the time of the receipt of the grain at the 
 station to the date of forwarding. 
 
 4. No charge will be made for sacks returned unused if the number 
 be less than twelve, and be part of a larger number obtained for the 
 purpose of being filled, provided they are returned to the station at the 
 same time as the filled sacks are delivered thereat. 
 
 5. The charge for sack hire from the sending station is one half- 
 penny PER SACK FOR TWELVE DAYS, Commencing from the date of tlie 
 Railivaij Companifs forwarding Invoice ; such sacks are only to be used 
 for the same grain during that period. If detained beyond twelve days, 
 an additional one halfpenny per sack per week will be charged, until 
 proof be furnished of their discharge at, or their return to, the station 
 from which they were delivered filled to the consignee. The returned 
 sacks to be addressed to the Great Northern Railway depot, Boston, 
 Lincolnshire. 
 
 6. The amounts payable to the Company for hire may be paid by the 
 original sender, or by the transferee of the grain, at the station from 
 which it is to be forwarded ; or such amounts as are due, or may 
 accrue thereon, may be charged forward with the carriage of the grain. 
 
 7. On the arrival of the grain at the station to which it is consigned, 
 the consignee will be charged with the demurrage due up to that date.
 
 2CrZ REGULATIONS AS TO HIRE OF SACKS. 
 
 and for the hire of the sacks unless previonsly paid. In the event of 
 his i-efnsal or objection to pay tlie same, the Company will hold the 
 consignor or hirer responsible for all amounts of dcmui-ragc and hire 
 due and unpaid up to the date of delivery to the consignee. The 
 Great Northern Railway Company therefore recommend the hirers of 
 their sacks to have a clear understanding with the purchaser of the 
 grain at the time of sale as to the charges incurred for the use of 
 such sacks, and to obtain a distinct undertaking for payment of such 
 charges. 
 
 8. Consignees and others receiving grain in the Company's sacks, 
 must sign the Full Sack Eeceipt Book, and will be charged demurrage 
 for the sacks at the rate of one halfpenny per sack per week for any 
 period they may detain the sacks beyond that charged for upon the 
 grain by the sending station. 
 
 9. In charging for demurrage, parts of a week will be charged as one 
 week. Sundays will not be charged for in calculating any period under 
 a week. 
 
 10. Grain brought to a station in other sacks cannot be shot into 
 those belonging to the Great Xorthern Railway Company, unless an 
 order in writing is sent to the Clerk in charge of the station for the 
 liire of the Great Northern Railway Company's sacks. The party send- 
 ing such order will be held liable for the Company's charges according 
 to these regulations. 
 
 11. Lightermen and carriers of grain applying for and obtaining 
 the Great Northern Railway Company's sacks without a special order 
 from their employers will be held liable for the sacks and the charges 
 thereon. 
 
 12. The Great Northern Railway Company's sacks, when obtained 
 from a station for the purpose of being filled, or when emptied after 
 use, must not be sent by merchants or others to the station of any 
 other company, but must in all cases be returned to the same station 
 from which they were received. If this regulation is infringed, one 
 penny per sach per week will be charged. This rule will not apply 
 when sacks containing grain are sent by the Great Northern Railway 
 Company direct for further transit to the station of another Railway 
 Company in the same town, in which case the usual hire will be charged. 
 
 13. The Great Northern Railway Company's sacks are not to be used 
 for any other purpose than for the conveyance of grain by the Great 
 Northern Railway route ; parties using them for any other purposes, or 
 for the conveyance of grain by water or road, will be charged three- 
 pence per sack per day the whole time they are in their possession, and 
 in case of damage^ loss or misuse of sacks, parties render themselves
 
 PRIVATE SACK COMPANIES. 203 
 
 ]inl>le to penaltief? provided nndcr tlic Act 7 & 8 George dth, cap. 30, 
 section 24. 
 
 14. The Clerks in charge at the stations on the Great Nortliern 
 Eailway are not empowered to make any arrangements for use of the 
 Company's sacks contrary to these reguhitious. 
 
 15. In case of parties disregarding or infringing these regulations the 
 Great Northern Railway Company reserve to themselves the right of 
 refusing to accede to any further a})plication for sacks for or from such 
 parties. 
 
 The regulations upon which Private Companies let out sacks are 
 materially diflFerent ft-om those of Railway Companies : and this is not 
 to be wondered at, seeing that a Sack Company has no claim whatever 
 upon the consignee ; the hirer of the sacks makes the contract with the 
 lender, and he alone therefore is responsible for any damage which the 
 lender may sustain. Thus it frequently happens that farmers receive 
 a long bill for demurrage upon sacks which they have hired a long time 
 previously, and suppose to have been returned long ago to the Sack 
 Company. These cases are generally tried in County Courts, and are 
 rightly decided in fiivour of the Sack Companies, so that hirers of sacks 
 should in all cases protect themselves by special contract with the 
 parties to whom they consign their sacks. 
 
 In Lee v. Umcin, which was tried at the York Summer Assizes, the 
 question raised was — how far the plaintiff was entitled to charge the 
 consignees of grain and malt loaded in his sacks, and with whom he had 
 no direct dealings, with demurrage for the extension of the use of his 
 sacks, for a certain number of days beyond those mentioned in his 
 notice ? Pollock C.B. ruled that the plaintiff could not by any system 
 of notices make the defendant liable, and that his remedy was against 
 the consignor and not against the consignee. 
 
 A railway company imclertaldng to carry goocU hoolced through hy 
 otJier means than their line, cannot set up as a defence for damage done 
 to the goods that such contract was ultra vires {Willey v. The West 
 Cornwall Railway Company). And if they charge for parcels less than 
 one cwt. a larger rate than for heavy goods, but if such small parcels 
 are packed together or directed to the same consignee the same rate as 
 for heavy goods, they cannot be compelled to carry for the lower rate 
 parcels directed to different persons, but delivered to the railway by 
 the same carrier, to be re-delivered by himself at their destination 
 (Baxendale v. The Eastern Counties Railway Company). 
 
 It has been decided by the Court of Exchequer that there is no 
 general duty imposed hy law upon carriers to give notice to the consignor 
 of tlie refusal hy t/ie consignee to receive the goods, but they are merely
 
 2G1 CAnEIER LIABLE FOE LOSS OF DOG. 
 
 lionnd to do what is rcaponnhle, under the particular circumstauces of 
 cacli case {Tfinhoii \. Baxruilale). "But per Bramiccll B. : "The judg- 
 ment of tile majority of l:he Court iu Crouch v. The Great Wesfern 
 Bailicay Cumpainj seems to sliow that it is the duty of the carrier to 
 communicate with the consio-nor" (/^.). And it is no answer to an 
 action against carriers by tlie owner of goods lost (who was the con- 
 signee) that the consignor, after the loss of the goods, claimed com- 
 pensation, and that the carriers, without notice, and believing him to 
 be the owner, paid compensation to him {Coomls v. Bristol and Exeter 
 liailiray Company, 27 L. J. Ex. 401). 
 
 }Vliere the plaintiff sent Jive bwidles of hay-cloths by the defendants, 
 carriers, to he delivered in Bedford on a Thursday, in order to be ready 
 for the market on Saturday, but did not give notice that they were sent 
 for that purpose, and on that day his clerk proceeded there, but owing 
 to the non-delivery of the goods till the Monday following, removed 
 them to another place for sale, it was held by the Court of Exchequer, 
 on a motion for a new trial, in an action for non-delivery of the goods 
 within a reasonable time, that the simple expenses so incurred might 
 be given by the jury as damages (Blade v. Baxendale). 
 
 Lord Ellenborouyh C.J. ruled, in 8tuart v. Craivley, that when a cloy 
 is delivered to a carrier, ivho yives a receipt for it, and is afterwards lost, 
 the carrier cannot set iip as a defence that the cloy teas not properly secured 
 ivhen delivered to him. Here a valuable greyhound had been delivered 
 to the defendant to carry from London to Harefield Lock. His book- 
 keeper gave a receipt ; and the dog was tied by a cord to a watch-box, 
 but slipped his head from the cord round his neck. The defendant 
 contended that, as the dog had no collar, he was the same as a parcel 
 imperfectly packed, and that the loss should fall on the sender ; but his 
 Lordship said that the cases were not identical : as iu that of the parcel 
 the defect was not visible, whereas here the defendant had the means of 
 seeing that the dog was insulliciently secured.
 
 DISTRESS DAMAGE FEASANT. 265 
 
 CHAPTER IX. 
 
 DISTRESS. 
 
 Gilhert thus defines the general principles of distress damage feasant : 
 ''A man may distrain beasts damage feasant ; but if a man come to 
 distrain, and see the beasts on his ground, and the owner chase tliem 
 out before the distress be taken, though it be of purpose to prevent the 
 distress, yet the owner of the soil cannot distrain them ; and if he doth, 
 the owner of the cattle may rescue them, for the beasts must be damage 
 feasant at the time of the distress ; and if they were damage feasant 
 yesterday, and again to-day, they can only be distrained for the damage 
 they are doing when they are distrained. And if many cattle are doing 
 damage, a man cannot take one of them as a distress for the whole 
 damage, but he may distrain one of them for its own damage, and 
 bring an action of trespass for tlie damage done by the rest." So Lord 
 Cohe says (1 Inst. 161 A) : '* If a man come to distrain for damage 
 feasant, and see the beasts on his soil, and the owner chase them out on 
 purpose before the distress is taken, the owner of the soil cannot 
 distrain them ; and if he doth, the owner of the cattle may rescue 
 them, for the beasts must be damage feasant at the time of the distress." 
 His Lordship also adds (1 Inst. 142 a) : " It is to be understood that 
 for a rent or service the lord cannot distrain in the night, but in the 
 day-time ; and so it is of a rent-charge. But for damage feasant one 
 may distrain in the night ; otherwise it may be that the beasts will be 
 gone before he can take them." 
 
 And j;er Witmot C.J. : " If a man turn cattle into Blackacre, where 
 he has no right, and they escape and stray into my field for want of 
 fences, he cannot excuse himself or justify for his cattle trespassing in 
 my field" (3 Will. 12). It was decided in Dovaston v. Pagne, that a 
 plea in bar of an avowry for taking cattle damage feasant, that the 
 cattle escaped fi'om a public highway into the locus in quo, through the 
 defect of fences, must show that they weve passing on the highwag when 
 they escaped ; and that it is not sufficient to state that being in the 
 highway they escaped. Heath J. said : " The law is as my brother 
 Williams (Sergeant) stated, that if cattle of one man escape into tlie
 
 2C)6 THINGS IN MANUAL USE CANNOT BE DISTRAINED. 
 
 land of another, it is no excuse that the fences were ont of repair if they 
 were trespassers in the place from whence tliey came. If it l)e a close, 
 the owner of the 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 pro^x^rty is in the owner of the soil, subject to an ease- 
 ment for the benefit of the public. 
 
 Carndlicrs v. Hullis and Church was a case of trespass for driving 
 plaintiff's sheep and having them in a highivay, by which they were in- 
 jured. To this it was pleaded that they were wrongfully in defendant's 
 close depasturing, and that defendant drove them into the adjacent 
 highway. The replication was that they escaped into defendant's close 
 from an adjoining close of plaintiff's through a defect in the fence 
 between the two closes, which fence defendant was bound to repair. 
 The rejoinder travereed the escape of the sheep through a defect in the 
 fence, and the issue was found for the plaintiff. It was held that the 
 replication answered the plea. Lord Denman C.J. said : " It is per- 
 fectly clear that the least to be expected from a party in the situation of 
 the defendant here, is that he should put back the sheep into the place 
 in which they were before they quitted it in consequence of his neglect." 
 
 A horse, harness, and other things in actual iTiamial use, cannot be 
 distrained damage feasant, although they be so in use in doing the 
 damage complained of, because of the tendency to a breach of the peace 
 {Field V. Adames). And it is not necessary for the person whose pro- 
 perty is distrained to aver that the peace was endangered, nor that the 
 things taken were " in manual " use ; but it is sufficient to state they 
 were "in the actual possession of the plaintiff, and then under his per- 
 sonal care, and were then being actually used by him " {ih.). A strong 
 case is put in Bac. Abr. " Distress" (f), where it says, " If a man rides 
 upon my corn, I cannot take his horse damage feasant'"' 
 
 To support a justification for taking cattle as a distress damage 
 feasant, if it appear that the party distraining had not actually got into 
 the locus in ([uo before the cattle had got out of it, the justification can- 
 not be supported {Clement v. Milner). In this case the cow broke into 
 a field of turnips belonging to the defendant, and a woman picking 
 turnii:>s turned her out. The fences (which it apjieared the plaintiff 
 was bound to repair) were in a very ruinous state, and the cow re- 
 turned ; the same woman was about to turn her out again, when one of 
 the defendants being in an adjoining field, and seeing her endeavour to 
 turn the cow out, called out to her to stop, and ran towards the place 
 where the cow was. The woman not having heard him, turned the cow 
 back into the plaintiff's field, and she had got some way into the defen- 
 dant's field before the defendant came up. He followed the cow into
 
 DEMISE OF A DAIRY. 267 
 
 the field, and calling the other defendant, his servant, to his assist- 
 ance, they drove her back into the defendant's field, and from thence to 
 the pound. There was rather contradictory evidence as to the fact 
 whether the defendant had actually got into the field where the trespass 
 was done before the cow had been turned out of it or not. Lord EMun 
 C.J. thus pat the case to the jury : If Milner, in the act of coming up 
 in order to distrain the cow, had actually got into the field where the 
 cow was committing the trespass before she had been turned out of it, 
 the justification that he was owner of the field of turnips where she was 
 trespassing was proved ; but if they thought that though he might be 
 approaching it to distrain her, the cow was out of the hcus in gt^o before 
 he got into it, the verdict must be for the plaintifi* ; and so the jury 
 found it. 
 
 Burt V. Moore was a somewhat peculiar case. The plaintiflF demised 
 to the defendant the milk of twenty-two cows, provided by the plaintiff, 
 and to be fed at the plaintiff's expense on certain closes belonging to 
 him, the plaintiff covenanting that the defendant might turn out a 
 mare, and that no other cattle should (except a bull with the cows from 
 April 23rd to November 13th) be fed there. It was held that the 
 separate herbage and feeding of those closes passed to the defendant, 
 and that the defendant might distrain other cattle of the plaintiff's 
 doing damage there. And ])cr Ashhurst J, : " The cases of Rex v. 
 LocJcerlij and Eex v. Tolpuddle go the full length of deciding the 
 present. In those it was held that a right to the separate herbage gave 
 the party renting it a settlement ; and that the sole right to the use of 
 a thing was the same as a right to the thing itself. Such is the present 
 case ; it is the demise of a dairy ; of the sole right of enjoyment of cer- 
 tain closes to the exclusion even of the lessor himself. For as to the 
 circumstance of the bull, that does not derogate from the general and 
 exclusive right granted ; on the contrary, the stipulation was inserted 
 for the benefit of the lessee, and not of the lessor, since otherwise the 
 lessee would not have had the advantage of the cows." 
 
 The escape of a distress was very much considered in Vasjmr v. 
 Edwards, which was a case of " trespass quare dausum fregit, and fed 
 his grass with a pig." The pig had been taken damage feasant, and im- 
 pounded in a common pound, and the Court held that if a distress 
 escapes the person distraining cannot bring trespass, unless he shows 
 that the escape was without his default. And ^^er Holt C.J. : " If a 
 distress damage feasant dies in pound, or escapes, the party shall not 
 distrain de novo ; but if it were for rent, in either case he may distrain 
 de novo." This dictum was quoted by Best C.J. in his judgment in 
 Knowles v. BlaJce.
 
 268 ABANDONMENT OF DISTRESS. 
 
 Knou'Jes v. Bhthp was a Rtronp:cr case tlian the above, as the caftU 
 hnil neve?' hem in the pound. Tlie plaintiff's son having seen the defen- 
 dant Blake's horses trespassing in his father's field, was in the act of 
 driving them to the pound, when he left them for the jDurpose of ap- 
 prising Blake of what had happened. When he was out of sight they 
 strayed from the plaintiff's field into the defendant's shrubbery, where 
 they remained half-an-hour : at the end of that time plaintiff's son, 
 having failed to receive redress, di'ove them out of the shrubbeiy into 
 plaintiff's yard, from which they were shortly afterwards rescued by the 
 defendant and his servant. It was objected that there was no rescue, 
 because the distress had been abandoned by the plaintiff's son allowing 
 the cattle to escape and remain in the shrubbery, whence he had no 
 right to remove them. A verdict was found for the plaintiff, subject to 
 a motion to set it aside, in which judgment was given for the defendant. 
 Best C.J. said : " Two questions have been raised in this case : upon 
 the first, we all think that the distress was sufficiently made, for no 
 precise act or form is essential to a distress. But distress is a matter of 
 strict right, and if he who distrains damage feasant permits the cattle to 
 escape, he must look for some other remedy. A mere escape for an 
 instant, indeed, if the distrainor followed him, would not be an aban- 
 donment of the distress ; for Lord Coke (Co. Litt. 161a) says : ' When 
 a man has taken a distresse, and the cattle distreyned, as he is driving 
 of them to the pound, go into the house of the owner, if he that took 
 the distresse demand them of the owner, and he deliver them not, this 
 is a rescous in law.' But here the plaintiff's son permitted the horses 
 to stray in the defendant's shrubbery for half-an-hour, they were not 
 demanded during that time, and that was an abandonment of the right 
 of freshly following. Lord Colce also says : ' If the cattle of themselves 
 after the view go out of the fee, then cannot the lord distreyne them ' '' 
 {ib.). A plea of recaption on a rescue must aver that the recaption was 
 on fresh pursuit {Rich v. WoolJcy, 7 Bing. G51). 
 
 In Badkin v. Powell it was held that trespass vi et armis does not lie 
 against a pound-keeper merely for receiving a distress, though tlie original 
 taking be tortious, but secus if he exceeds his duty, and assents to the 
 trespass. This was a case of trespass by the plaintiff, who was a running 
 dustman, against the three defendants, two of whom had detained the 
 })laintiff's cart and horses in the street, under the pretext that they were 
 an estray. Lord Mansfield C.J. thus defined a pound-keeper's duties : 
 "The pound-keeper, who is the third defendant, had no concern in 
 taking or bringing them to the pound. How, then, is he guilty of 
 trespass ? The pound is in the custody of the law ; and the pound- 
 keeper is Ijound to take and keep whatever is brought to him at the
 
 DUTIES OF POUNDKEEPER. 269 
 
 peril of tlie person who brings it. There is no judgment, no direction, 
 no written warrant or examination to be had by him. When is the 
 trespass committed by him ? He does nothing to ratify it. He only 
 takes the cattle, as he is obhged to do, at the peril of the persons who 
 bring them. If wrongfully taken, they are answerable, not he. It 
 would be terrible if a pound-keeper were liable to an action for refusing 
 to take cattle in, and were also liable in another action for not letting 
 them go. If he goes one jot beyond his duty, and assents to the tres- 
 pass, that may be a different case. When cattle are once impounded he 
 cannot let them go ^\dthout a repleyin, or without the consent of the 
 party. Upon their being released, he is entitled to legal fees. If he is 
 guilty of extortion, there is another remedy. The law thinks him so 
 indiflPerent a person, that if the pound is broken the pound-keeper can- 
 not bring an action, but it must be brought by the party interested." 
 
 And so in Rex v. Bradslmw, Coleridge J. defined the dutij of a hay- 
 ward: " We may take it that the duty of the hay ward is to keep the 
 lanes clear, by impounding stray cattle that he may find there ; but 
 that with respect to stray cattle found on private land the hayward is 
 only the private servant of the parties, if they send for him. I should 
 be certainly inclined to ask whether there is any authority which lays 
 down that a hayward is bound to go into private fields. If there were 
 extensive commons in this parish, I should hold them to fall within the 
 same rule as the lanes. It is true that if these cattle had got to the 
 pound and been rescued from it, the defence would have been pound- 
 breach, but in some places the offices of hayward and pound-keeper are 
 distinct, and held by separate persons. If the hayward had driven 
 cattle to the pound, which he had found straying in the lanes, I should 
 have held that they were in the custody of the law from the first, and 
 that the rescue of them on their way to the pound would be indictable ; 
 but here, till the cattle got to the pouud the hayward was merely act- 
 ing as the servant of Mr. Stone, on whose land the cattle were found, 
 and therefore at that time a rescue of them was no more indictable than 
 if Mr. Stone had himself been driving them to the pound, and they had 
 been rescued from him ; and till those cattle had got to the pound I am 
 of opinion that they could not be considered in the custody of the law, 
 and that the rescue of them was therefore not indictable." 
 
 The treatment of animals in the pound is fully provided for by 12 & 13 
 Vict. c. 92, ss. 5 & 6, which enacts that every one who impounds an 
 animal, " in any pound or receptacle of the like nature," shall provide 
 it with a sufficient quantity of fit and wholesome food and water, under 
 a penalty of 20s. ; and that in case an animal is left so unprovided lor 
 more than twelve successive hours, any one may from time to time enter
 
 270 TREATMENT OF ANIMALS IN POUND. 
 
 and supply it with food and water, without being subject to an action 
 of trespass, and recover the reasonable cost of such food and water from 
 the owner of the animal, before it is removed. As it was doubtful 
 whether this latter act gave any remedy to the person impounding for 
 the recovery of the value of the food and water supplied, and certainly 
 gave no power to sell the animal, although full provisions for those pur- 
 poses were given by 5 & 6 WiU. IV. c. 59 (repealed), stat. 17 & 18 Vicf. 
 c. 60 was enacted, which provided by section 1 that all persons who had 
 impounded animals, &c., since 12 & 13 Vict. c. 92, or should hereafter 
 impound them, might recover from their owners not exceeding double 
 the value of the food and water so already or hereafter to be supplied, 
 and might sell them pul)licly in the market after the expiration of seven 
 clear days from the time of the impounding, and after having given three 
 days' public printed notice thereof, and after discharging the value of 
 such food and water, sale expenses, &c., hand over the surplus (if any) 
 to the owner. 
 
 By section 1 of 6 & 7 Vict c. 30, jwrsons relmshnj or afffm^jfinf/ to 
 release cattle imjm/nded, or ilamafjing any pound, etc., upon conviction 
 before justices are to forfeit £5, or be imprisoned for not less than four- 
 teen days in default of payment. For decisions on 5 & 6 WiU. IV., 
 c. 59, as to supplying animals in the pound with food and selling them 
 for its value, see Machcll v. Ellis, Laijton v. Harry, and Mason v. Neiv- 
 hnd. A distrainor cannot work or use the thing distrained, as he has 
 only the custody of it as a pledge (Bac. Ab. tit. Distr. D). Cows may 
 be milked in the pound, and there is no difference in this respect 
 between those taken for a distress, or in ivWiernam or as estrays. And 
 see the cases collected in Gilbert's " Law of Distress," page 65. 
 
 Impounder hound to know state of pound. — A person who distrains 
 cattle damage feasant is bound, at his peril, to take care that the place 
 in which he impounds them is in a fit and proper state, and is hable for 
 the consequences if it is not {Biynell v. Clark) and {Wilder v. Speer, 
 8 Ad. & E. 547.) 
 
 Where cattle distrained damage feasant were in a private pound (an 
 outhouse), and the distrainor's wife admitted that they were to be for- 
 warded to a public pound, the tender of amends was not too late. Here 
 there was abundant evidence that the wife was authorized to receive such 
 tender. It was not too late, as the cattle were not in the custody of the 
 law (Broume v. Poa-etl). And semUe per Best C.J., the piovnd of the lord 
 of the manor is the only pound sufficient to make a tender of amends 
 too late ; and if it were otherwise, the distrainor by impounding on the 
 spot where he takes the cattle, or very near, might exclude the possibility 
 of any tender being made {ib.) (4 Bing. 230).
 
 TENDER WHEN NOT TOO LATE. 271 
 
 But detinue will not lie for goods impounded damage feasant, where 
 tender of amends has been made after the impounding, Gahvay v. Cozens 
 (1 C.B. 788 ; 14 L.J. (N.S.) C.P. 215), and Singleton v. Williamson. 
 
 Tender not too late if made after imjmunding and before sale. — An action 
 is maintainable upon the equity of the statute 2 Will. & Marg, stat. 1, 
 c. 5, s. 2, for selling goods seised under a distress for rent, where a tender 
 of the rent and expenses has been made before the sale, and within five 
 days of the seizure, although after impounding ; Ullis v. Ta?jlor is there- 
 fore overruled. And per Curiam: "The case most relied upon by the 
 defendant was that of Ellis v. Taglor (8 M. & W. 415, and 10 L.J. 
 (N.S.) Ex. 462), in which the Court held, upon the authority of two 
 previous cases, that a tender after impounding a distress for rent was 
 too late. The two cases were Thomas v. Harris (1 M. & G. 695, 9 L.J. 
 (N.S.) C. P. 308), in which Mr. Justice Maide differed from the other 
 judges ; and Ladd^. Thomas (12 Ad. & E. 117, and 9 L.J. (N.S.) Q. B. 
 345). Undoubtedly those cases are authorities upon the point. But 
 notwithstanding those decisions, the judges of the Court who heard the 
 argument were unanimously of opinion that upon the equity of the 
 statute of Will & Marg, before referred to, an action is maintainable for 
 selling goods distrained for rent after tender of tlie rent and expenses 
 though the tender be made after the impounding." And/?er Cromplon 
 J. : " The Court, in Ellis v. Taylor, seems to have assumed that because 
 it had been decided that the defendant could lawfully keep the goods, 
 notwithstanding a tender, if it was after impounding, he had therefore 
 a right to sell. The case of Glgn v. Thomas (11 Ex. 870, & 25 L.J. 
 (N.S.) Ex. 125) carried the law far enough against tenants " {Johnson v. 
 Ujiham). 
 
 Proper person to receive tender of rent. — On distraining for rent, the 
 man left in possession on the premises (being other than the person 
 holding the warrant ft-om the landlord to distrain) has no authority in 
 law to receive the rent. Where, therefore, W. executed a warrant of 
 distress, directed to him by the landlord, and left R. on the premises in 
 possession, and the tenant tendered the rent to R. who refused to receive 
 it, the tenant knowing that R. had not authority in fact to receive 
 the rent, and that W. had, and that he was within a reasonable and 
 convenient distance of the premises, it was held that the tender was 
 invalid. And per Hill J. : " If it were necessaiy to decide whether the 
 bailiff employed to make a distress has authority to receive a tender, I 
 should say he has, as there ought to be somebody who may be conveni- 
 ently applied to by the tenant for the purpose of tender. Pilhngtofi's Case 
 (Cro. Eliz. 813) decides that when a bailiff goes with his master, who 
 himself distrains, the bailiff has no authority to receive a tender ; but
 
 272 PROPER MODE TO TRY VALIDITY OF DISTRESS. 
 
 I sliould agvQC with the passage ah'eady alluded to in Gilbert on Distress, 
 pp. 82, 83, that where the baililt' is authorized to distrain, and distrains 
 without the personal intervention of the landlord, he would be authorized 
 to receive the rent. But it by no means follows that because a tender 
 may be well made to the bailiflf or broker authorized to distrain, a tender 
 may be made to any person assisting in the distress, and it would be a 
 monstrous proposition to say that the rent might be paid to any irre- 
 sponsible person who happened to be left by the bailiff in temporary posses- 
 sion of the goods. The case of Smith v. Goodwin (1 Nev. & M. 371, and 
 4 B. & Ad. 413 ; 2 L.J. (N.S.) K.B. 192) was relied upon for the plain- 
 tiff as assuming the proposition for which he contended, that the person 
 left in possession had authority to receive the rent ; but in that case the 
 rule was refused, on the ground that the tender to the landlord himself 
 was good. The short dictum as to the tender to the man in possession 
 was wholly unnecessary and beside the question {Boulton v. Reynolds, 
 29 L.J. Q.B. 11). 
 
 An action on the case does not lie for detaining cattle distrained damage 
 feasant, ivhere tender of sufficient amends ivas made after the cattle had 
 been impovnded (Sheriff v. James). It was also held in Ansco7nhe v. Shore 
 that such an action would not lie, and comnie semble such an action could 
 not be supported, even if the tender of amends had been made before 
 the impounding, as the proper mode to try the yahdity of a distress is 
 by an action of replevin or trespass. Lindon v. Hooper, which Lord 
 Mansfield C.J. referred to, in this case, decided that money had and 
 received did not lie to recover back money paid for the release of cattle 
 taken damage feasant, though the distress were wrongful, the proper 
 remedy being trespass and replevin. In Glynn v. Thomas, which was 
 argued in Error from the Exchequer, and where the principle on which 
 Lindon v. Hooper was decided, was expressly in pomt, Coleridge J. 
 remarked, " Lindon v. Hooper was a case in which the plaintiff's cattle 
 had been distrained damage feasant, and not for rent in arrear ; and it 
 was acted upon, in the Court of Common Pleas, in the case of Gulliver 
 V. Cosens, in which all the prior authorities were carefully reviewed, and 
 in which it was held that wlicre cattle arc distrained damage feasant, 
 an exorbitant sum demanded for the damage, and the owner pays that 
 sum under protest, but makes no tender of a sufficient sum, he cannot 
 recover back the sum so paid as money had and received to his use. 
 And in the same case it was further held, that if he had tendered a 
 sufficient sum before the distress made, his remedy would have been 
 replevin or trespass ; if after the distress, but before impounding, 
 detinue. The passage cited in that case from that of the Six Carpenters 
 (8 Rep. 147) is very important in thiS; because in it Lord Coke clearly
 
 ONUS OF ESTIMATING DAMAGE TO LAND. 273 
 
 puts tender of arrears of rent on the same footing with tender of amends 
 as applicable respectively to distress for rent in arrear, and distress for 
 damage feasant. In GuUwer v. Cosens the Court assumed the sum 
 demanded for the damage to have been excessive, but laid it down that 
 the plaintiff, being the original wrong-doer, was still bound to tender 
 the sum which he alleged to be sufficient ; and in the present case the 
 plaintilf for the same reason was equally bound to make the tender ; 
 he was in arrear with his rent, and therefore first in default : by the 
 law he must be taken to know the amount for which he is in arrear, and 
 the landlord when he distrains is not bound to inform him." 
 
 The facts of Oulliver v. Cosens were as follow: A flock of sheep, 
 belonging to the plaintiff, having strayed upon the defendant's land, 
 they were distrained as damage feasant by the defendant, who refused 
 to restore them except upon payment of £2 15s. 9d., his estimate of the 
 damage. This the plaintiff paid under protest, and brought an action 
 for money had and received. It was urged for the defendant, on the 
 authority of Lindon v. Hoojmr, that the action was not maintainable, 
 and that where an exorbitant demand was made for compensation, the 
 only remedy was replevin. Alderson B. directed a nonsuit, reserving 
 to the plaintiff leave to enter a verdict for that sum, if the Court should 
 think the action well brought. The actual damage done by the sheep 
 was estimated by the jury at 5s. The Court discharged the rule ; and 
 Tindal C.J. thus laid down the law on the subject : 
 
 "The question at issue seems to me to depend on the considera- 
 tion npon which of the parties has the law cast the onus of estimating 
 the amount of damage done to the owner of the land. The party whose 
 sheep have trespassed is in the first instance the wrong-doer; it is 
 therefore upon him that the risk of estimating the amoun' of damage 
 ought to rest, and not upon the party who has suffered by the trespass. 
 If the owner of the cattle elects to make a tender of sufficient amends 
 before the distress, and the distrainor refuses it, the latter becomes a 
 wrong-doer ; but a tender after distress does not entitle the owner to 
 replevy his cattle. The rule of law cannot be more clearly stated than 
 is done by Lord Cole in the Six Carpenters' case. Vide John Matre- 
 rer's case : it is held by the Court that if the lord or his bailiff' comes 
 to distrain, and before the distress the tenant tenders the arrears upon 
 the land, there the distress taken for it is tortious. The same law for 
 damage feasant, if, before the distress, the tenant tenders sufficient 
 amends ; and therewith agree 7 Ediv. III. 8 b., in the Jllaster of St. 
 Mar¥s case; and so is the opinion of Mill to be understood in 13 
 Hen. IV. 17 &., which opinion is not well abridged in title 'Trespass,' 
 Fitzh. pi. 180. 'Note, reader, this difference, that tender upon the
 
 274 DETAIXTXG CATTLE AFTER TENDER OF AMENDS. 
 
 land before the distress makes the distress tortious; tender after tlie 
 distress, and before the impounding, makes the detainer, and not the 
 takingr, wrongful ; tender after the impounding makes neither the one 
 nor the other wrongful, for then it comes too late, because then the 
 cause is put to the trial of tlie law, to be there determined. But, after 
 the law has determined it, and the avowant has return irreplevisable, 
 yet if the plaiutitt" makes him a sufficient tender, he may have an action 
 of detinue for the detainer after ; or he may, upon satisfaction made in 
 Court, have a writ for the re-delivery of his goods.' 
 
 " Tt appears to me that when the present plaintiflF found he was too 
 late to make a tender so as to entitle himself to replevy the sheep, and 
 to succeed in an action of replevin, his proper course was to make a 
 tender of sufficient amends to cover the damage sustained ; and in the 
 event of the defendant refusing to accept the sum tendered, and deliver 
 up the sheep, he should have brought detinue {i.e., upon a tender lefure 
 the impounding), for they were held by the defendant merely as a pledge. 
 In that case the hazard of the sufficiency of the tender would fall, as it 
 ought to do, on the owner of the cattle. It has been urged that here a 
 tender was unneccsi^ary, inasmuch as the sum demanded for compensa- 
 tion was exorbitant. That argument, however, as it seems to me, is 
 answered by saying that the risk of determining the real amount of 
 damage is not by law imposed upon the defendant.' This I should be 
 disposed to hold upon principle, and independently of the authority of 
 Lindon v. Hoojjpr, which I am unable to get over, and which I am not 
 aware has been overruled ; and though cases have occurred in which it 
 has been decided that an excessive demand dispenses with a tender, yet 
 those were cases where the law made it incumbent on the defmdant 
 correctly to ascertain the amount of his demand. The cases of Barrett 
 V. The Stockton and Darlington Railway Comjinny and Parker v. The 
 Great Western Railway Company range themselves within this class. 
 The cases of Knihhs v. Hall and Skeate v. Beale follow the doctrine of 
 Lindon v. Hooper, On authority, therefore, as well as principle, the 
 verdict for the defendant ought to stand." 
 
 And;w Mauh J. : "The owner of the land is no wrong-doer if he 
 distrains before tender made ; nor is he a wrong-doer if he impounds 
 before tender, or after an insufficient tender. Here the real question is, 
 whose duty it was to estimate the damage : if the owner of the cattle 
 was bound to make a tender, he was to ascertain the amount at his 
 peril." 
 
 An action will lie against a landlord, at the suit of the tenant, for de- 
 laining the goods taken under a distress, after tender of rent in arrear and 
 costs, before imjioundiny {Loring v. Warhurton). And per Coleridge J. :
 
 DISTRAINING CATTLE OF STRANGER. 275 
 
 '' This case is clearly distinguishable from Glynn v. Thomas ; there it 
 did not appear that the tender was made before impounding " {ih). 
 
 The note in Poole v. LongvcvUh says, "Agreeable to the opinion of 
 Smmders, the settled distinction seems now to be, that where a stranger's 
 cattle escape into another's land by breaking the fences where there is 
 no defect in them, or if the tenant of the land where the distress is 
 taken is not bound to repair the fences though there is a defect in them, 
 the cattle may be distrained for rent immediately before they are levmit 
 and coufliant ; but if the cattle escape through the defect of fences 
 which the tenant of the land is bound to rei)air, they cannot be distrained 
 by the landlord for rent, though they have been levant and couchant, 
 unless the owner of the cattle after notice that they are in the land 
 neglects or refuses to drive them away, for the landlord shall not take 
 advantage of his own wrong ; and this case of Poole v. Lo7igueviUe (if 
 cattle escape out of an adjoining close, and are levant and couchant, ad- 
 judged that they may be distrained for rent, though they escape through 
 the defect of fences which the party distraining ought to have repaired) 
 is denied to be law." 
 
 Littledale J. said, in Safferi/ v. Elgoocl, which was confirmed in Jolin- 
 son v. FauUnur, "The cccttle of a stranger are cUstrainahle for a rent-charge, 
 unless they are shown to have been placed there by some one who has 
 an interest paramount to the charge." "A rent-charge is a rent with 
 power of distress ; and unless the grantee could distrain the cattle of a 
 stranger being upon the land, I know not what would be the use of a 
 power of distress ; for the land might get into the hands of a stranger. 
 In order to exempt the cattle of a stranger, he ought to show some 
 interest in the land, paramount to that of the grantee of the rent-charge." 
 " In 2 Saund. 290 there is a note which, referring to the case of a 
 stranger's cattle escaping into another's land by breaking the fences, 
 says, 'The lord ox grantee of a rent-charge, who had nothing to do with the 
 fences, may in such case distrain the cattle after they have been levant 
 and couchant, though no notice is given to the owner.' Kemp v. Creives 
 is there cited. That case may be considered as having settled the law 
 that a grantee of a rent-charge may distrain the goods of a strarger 
 being upon the land charged." 
 
 Cattle which cere upon land hg wag of agistment may be distrained for 
 rent (Roll. Abr. 669 ; Cro. Eliz. 549). In FowJces v. Jogce, a grazier's 
 servant driving a flock of 123 fat sheep to London, was encouraged by 
 an innkeeper's servant to put his sheep into pasture grounds belonging 
 to an inn, at the usual rate of eightpeuce per score per night. Before 
 they were levant and couchcint the landlord, Joyce, whose rent was £132 
 in arrear, demanded whose they were, and seeming to be angry the 
 
 T 2
 
 27G SALE OF TENANTS GOODS UNDER BILL OF SALE. 
 
 drovers said they would take out their sheep. At hist he said they 
 might stay in for tlie night ; and when the men were gone to the inn 
 he drove the slieep to the pound, where they were kept four or five days, 
 and had to be replevied. It Avas decided that they were liable to dis 
 tress ; but the grazier was afterwards relieved in equity, on the ground 
 of fraud in Joyce, who was decreed to pay all the costs both in law 
 and equity. Serjeant Williams adds, in his note on this case (2 Saund. 
 290 a), " And it should seem at this day, a court of law would be 
 of opinion that cattle belonging to a drover being put into a ground 
 with the consent of the occu])ier, to graze oidy one night on their way 
 to a fair or market, are not liable to the distress of the landlord for 
 rent." 
 
 In Horsford v. Wchsler, a tenant's goods, includhig certain eatage, 
 were sold under a bill of sale ; and his landlord (whose agent was the 
 defendant) agreed to let the sale proceed on condition that the arrears 
 of rent for which he had put in a distress should be paid out of the 
 proceeds. It was stated at the time of sale (November), where the de- 
 fendant attended, that the purchaser should have liberty to consume the 
 grass in the close till February 25, when the tenant's interest in them 
 terminated. The plaintiff purchased the eatage ; and as the sale did 
 not cover the arrears, the landlord distrained the plaintiff's cattle, which 
 were eating it off. It was held by Lord AUnger C.B., Bolland B., and 
 Chiniei) B. {Parlie 'B. diss.) that a contract was to be implied on the 
 part of the landlord not to distrain the cattle of such purchaser. Gurney 
 B. considered that any other construction of the agreement at the sale 
 " would render the transaction merely a trap for the cattle of any ])erson 
 who purchased the eatage sold under the sanction of the landlord him- 
 self." Bolland B. said he was " at first struck Avith the case of FowTces 
 V. Joyce, which was relied on for the defendant. The point there was, 
 whether the plaintiff' had any right to the privilege of having his cattle 
 unmolested. There was, in fact, no consideration to support the grant 
 of any such privilege ; but suppose the landlord there had by agreement 
 taken a portion of the rent from the owner of the cattle, could he after- 
 wards have distrained ? " 
 
 Where a tenant, ivho is shortly alout to quit his farm, advertises for 
 sale hy auction his stocJc, Ax., upon the farm, his payment of rent already 
 due and to becoms due at the exjnration of his tenancy to his land- 
 lord, who has notice of the intended sale, does not raise an implied 
 ptromise (no actual promise was proved at the trial) on the part of the 
 landlord not to interfere with or prevent the sale or the removal of the 
 property, and the tenant cannot recover damages caused by the hindrance 
 of the sale {Bushhy v. Fisher). In Thomas v. Williams, a tenant of the
 
 IMPLIED PROMISE NOT TO INTEP.FERE WITH SALE. 377 
 
 ])laintiff"s had cng^aged the defendant to sell his goods ; but on the sale 
 day (August) the plaintiff arrived at the farm Avith a bailiif and a notice 
 of distress for part of a half-year's rent due on the 25 th of Marcli. The 
 defendant verbally promised that if he would not distrain for the rent 
 due, and let the sale proceed, he would pay him not only the rent due, 
 but the rent that would be due at Michaelmas. It was held that the 
 promise to pay the accruing rent Avas a promise founded on a new 
 consideration distinct from the demand which the plaintiff had against 
 his tenant, and therefore void by the 29 Gar. II. c. 3, s. 4 ; and that 
 the promise being entire, and in the commencement void in part, was 
 void altogether ; and that the plaintiff therefore could not recover 
 from the defendant the rent due on the 25th of March. Lexington 
 V. Clarlc and Chafer v. Beckett Avere authorities directly against the 
 plaintiff on the question whether the promise, being void in part, 
 could be held good as to the other part, viz., the arrears due at Lady- 
 day, in respect of which it might have been good if confined to those 
 arrears. 
 
 A7i agreement to take interest on rent in arrear does not take away 
 the right of distress {Skerry v. Preston). But j^er Bagleg J., the landlord 
 could not distrain for the interest {ili.). According to Davis v. Ggde, a 
 promissorij note given hy the tenant to his landlord for rent does not of 
 itself suspend the right of distress until the note is due. Gage v. Acton 
 decided that a debt due on a bond may be set off against rent, because 
 the latter is in the nature of a specialty debt ; and in Davis v. Ggde 
 the promissory note being a debt of inferior degree to the rent, the 
 receipt of the note created no extinguishment of the rent. Assuming 
 that the taking of the promissory note might operate as a suspension of 
 the riglit to distrain, the Court there held that an agreement between 
 the parties to that effect should have been pleaded. 
 
 In Parrot and anor. v. Anderson, one Love, a tenant, being indebted 
 to his landlord for rent, gave the agent of the latter a hill of exchange at 
 ibur months for £146 rent, which he indorsed to a third person, and 
 afterwards paid the rent to the landlord, giving credit for it in his 
 accounts as if the tenant had paid the money. The bill was dis- 
 honoured ; and Love having taken the benefit of the Insolvent Act, the 
 defendant, Avho was the mortgagee of his farm, distrained his goods for 
 rent, inchiding the £146, and the assignees brought this action for 
 excessive distress. Mavle J. thought that the plaintiffs were not en- 
 titled to recover ; and it was arranged that they should be nonsuited, 
 leave being reserved to enter a verdict for £80, if on the facts of the 
 case the learned judge ought to have directed a verdict for them. 
 After consultation with Maulc J., who reported that he was requested
 
 278 AUTHOKITY BY LANDLORD TO DISTRAIX. 
 
 to leave the matter to the jury only, if he could tell them that they 
 mast find a verdict for the plaintiff, the Court refused a rule. Pollock 
 C.B. said : " The tenant cannot take advantajj^e of such a payment. 
 Suppose the steward of a landowner took bills of exchange for rent, and 
 then remitted the amount to the landholder, might he not distrain if 
 the bills were dishonoured ? " Kndiper Alderson B. : " If the defendant 
 himself had received the bill of exchange, and it was afterwards dis- 
 honoured, could he not have distrained ? " Farlce B. thought the de- 
 fendant liable to refund, on the ground that the money was paid by 
 the agent under a mistake of fact ; and added, " It is a question of fact 
 whether this payment by the agent was a loan to the tenant, or whether 
 the money was advanced by the agent to the landlord. A similar point 
 arose in Griffiths v. ClticJtcstcr. If the transaction amounted to a dis- 
 count of the bill by the agent for the tenant, then the rent was paid ; 
 but if it was only an advance of the rent by the agent to the landlord, 
 then he was entitled to distrain." The principal acted on in Slcijrinfj v. 
 Greenwood also applied here. 
 
 Where a landlord gires an autJioritij to distrain for rent, he thereby 
 necessarily authorises the bailiflp to receive it if tendered {Hatch v. Hale). 
 In Lewis v. Rectd the landlord verbally authorized his bailiffs, through 
 his agent (Owens), to distrain for rent due to him fi'om his tenant, of a 
 farm called Aberbortheu, and a mountain sheep-walk, Peubryn, direct- 
 ing them not to take anything except on the demised premises. The 
 bailiff distrained sheep of another person's (supposing them to be the 
 tenant's) beyond the boundary of the farm ; the cattle were sold, and 
 the landlord received the proceeds. It was held that the landlord was 
 not liable in trover for the value of the cattle unless it were found by 
 the jury that he ratified the act of the bailiffs with knowledge of the 
 iiTegularity, or that he chose, without inquiry, to take the risk upon 
 himself and adopt the whole of their acts. The defendants had first 
 seized about a dozen sheep which they found on the Penbryn mountain ; 
 and while they were driving thein down, and somewhere very near the 
 boundary of the Penbryn sheep-walk, these were joined by the other 
 sheep (making forty in all), which had been straying upon an adjoining 
 sheep-walk l)elonging to am^lher farm. Owens received the proceeds of 
 the sale of the sheep, and accounted for the money to Read, the defend- 
 ant ; but there was no direct evidence that either Owens or Read was 
 informed where the sheep were taken, or had any disLinct knowledge 
 that the distress was not made on the Penbryn sheep-walk. 
 
 Payment of rent under a distress is not a conclusive admission of title 
 in the distrainor, but may be rebutted by showing that he never had 
 any title (Knight v. Cox). A tender of the rent " under protect " is
 
 TRESPASS MAINTAINABLE AFTER TENDER. 279 
 
 good ; but it should be made generally without any condition or quali- 
 fication being imposed on the receiver {Manniipj v. Liuin). Bat tender 
 of saf is/action to a distrainor is too late after the goods have been im- 
 pounded, and this rule applies equally to goods seized for rent as well 
 as to cattle taken damage feasant {Ladd v. Thomas). Patteson J. said, 
 " That such a tender cannot avail where cattle have been distrained 
 damage feasant, is shown beyond a doubt by the cases of Sheriff v. James 
 and Anscomh v. Shore. The same doctrine has been laid down as to 
 goods taken for rent in FirtJb v. Purvis: but that was an act for pound 
 breach ; and it was enough for the decision of the case, that the tenant 
 had no right to take the law into his own hands " {it).). And per Lord 
 Denman C.J. : " I must say I think continuing in possession after a 
 proper tender is ground for an action of trespass j that Lord Ellen- 
 horovgKs doubts on that subject, in Winterhourne v. Morgan, were not 
 well founded ; and that Lc Blanc J. and Bagley J. took a right view of 
 it " (/&.). 
 
 Parke B. ruled, in Vcrtue v. Beasley, that a tenant tendering Ms rent 
 and the costs after distress taken, hut before it is impounded or removed, 
 may maintain tresjmss for a subsequent removal of the distress. His 
 lordship added: " The statute 11 Geo. 2, c. 19, s. 10, gives the option of 
 proceeding by case or trespass. If the injury had arisen from a mere 
 neglect to do some act {i.e., the mere omission to restore the goods after 
 acceptance of the rent), case would have been the only proper remedy." 
 The cause of action here was not the mere retaining possession, but the 
 wrongful removal of the goods after the tender ; and hence the Court 
 of Common Pleas did not consider that their decision in West v. Nibbs 
 conflicted with it. It was decided in West v. Nibbs, that a landlord 
 who had accepted the rent in arrear and the expenses of the distress 
 after the impounding cannot be treated as a trespasser merely because 
 he retains possession of the goods distrained, although his refusal to 
 deliver them up to the tenant may amount to a conversion, so as to 
 render him liable in trover. And per Cresswell J., Evans v. Ellioi (in 
 which it was held that replevin lay, at common law, for a wrongful de- 
 tention of goods taken under a lawful distress), " is an authority for the 
 proposition that, where there has been a tender between the taking and 
 the impounding, a detention after the tender is suSicient to satisfy the 
 usual allegation in a declaration in replevin, that the defendant took, 
 &c., and detained, &c.; but yet it does not decide that the mere retain- 
 ing by the landlord of the goods distrained, after the tenant has gained 
 a right to have them delivered up to him, will render the landlord 
 liable to an action of trespass." And per Wilde C.J., in allusion to 
 Evans v. Elliot : " My present impression certainly is that trespass will
 
 2 so RECOVERY OF RENT-CHARGE. 
 
 not lie for tlic mere detention of the goods ; the goods being in the 
 custody of the law, the distrainor is under no legal obligation actively 
 to re-deliver them ; the owner must take due means to re-possess him- 
 self of them" (iJ.). 
 
 A rent-charge may ie dwidcil />// irill or hy deed operating wider the 
 Statute of Uses, so as to make the tenant liable without attornment to 
 several distresses by the devisees, or cestuis que use, and semble since 
 the statute 4 Anne, c. IC, s. 9, a rent-charge may be so divided by a 
 conveyance of any kind {Iliris v. Watson); and the arrears of a per- 
 petual rent-cliarge were ordered by a decree of Sir. J. Romdiy M.R. in 
 White V. James, to be raised by sale, on the authority of Chqjit v. 
 Jacl'son. 
 
 If the half-yearly payment of a rent-charge on land under the Tithe 
 Commutation Act, 6 & 7 Wilt. IV. c. 71, he in arrear, and no sufficient 
 distress found, the owner of the rent-charge may recover such arrear for 
 a period not exceeding two years by assessment and writ of hahere facias 
 2)ossessionem, under sec. 82, although he may not have attempted to levy 
 the arrear of distress, under sec. 81, at the end of each or any but the last 
 of the half-years, and although at the end of one or more of such previous 
 half-years there may have been a suBBcient distress for the amount then 
 due (In re Camlenvell Rent-charge). Patfeson J. said : " There is no 
 reason to suppose that, although a party might distrain for an arrear of 
 two years, the legislature intended that he should not enforce the remedy 
 under sec. 82, unless he attempted to distrain at the end of a single half- 
 year and no distress were found. The construction of both clauses must 
 be the same. In the case of proceedings on a vacant possession (11 Geo. 
 II. c. 19, s. 16) it never was contended that if the landlord omitted to 
 enforce his remedy at the end of a first year he could not avail himself of 
 it afterwards." It was held by the Court of Exchequer {Parlce B. diss.), 
 substantially on the authority of the above case, that where under the 
 Tithe Commutation Act the halfgearly payment of rent-chciryes on land 
 shall he in arrear and unpaid for 40 days, and there shall bene sufficient 
 distress on the premises liable to the payment thereof, it shall be lawl'ul 
 for any judge of Her lilajesty's courts of record at Westminster to make 
 an order ex parte, without summons or notice, on affidavit of the f\icts, 
 i'or a writ to issue to the sheriff to summon a jury to assess the arrears 
 of rent-charge, and to return such inquisition to one of the superior 
 courts (In re Hammersmith Rent-charye). Lloyd v. Winton is a clear 
 authority that a rent-charge is not within 11 Geo. II. c. 19, s. 22 ; and 
 it was held by the Court of Common Pleas, in Newnham v. Bever, 
 principally on the authority of Lindon v. Collins, that the owner of a 
 rent-charge in lieu of tithes, distraining under the 81st section of the
 
 DISTRESS NOT INSEPARABLE FROM RENT-SERVICE. 281 
 
 6 & 7 Will. IV. c. 71, aud afterwards obtaining judgment in an aetion 
 of replevin, is not entitled to double costs under 11 Geo. II. c. 19, s. 22 ; 
 and that neither, consequently, is he entitled to "the lull and reason- 
 able indemnity as to costs," substituted for double costs by the 5 & 6 
 Vict. c. 97, s. 2, And per Maide J. : " The owner of the rent-charge, in 
 distraining for it, may act and demean himself iu relation to the distress 
 as any landlord may for arrears of rent reserved on a common lease for 
 3eurs ; that is, he may, without becoming a trespasser ah initio, conduct 
 himself in a manner not strictly conformable with the proper mode of 
 managing a distress" (/7>.). 
 
 The right of distress is not so inseparahJe an incident to a rent service 
 that it cannot be postponed ; and therefore where one A, a mesne 
 landlord, let premises to an under-tenant by a written agreement which 
 provided, among other things, that no distress should be made till A 
 had produced the receipt of the superior landlord, and A afterwards 
 distrained for his rent without producing such receipt, it was held 
 by the Court of Common Pleas, in an action by the under-tenant 
 against the broker who executed the distress, that A's right was 
 postponed, and that the defendant was liable as a trespasser {Giles v. 
 Spencer). And the fact that some time after the first agreement, A 
 and his under-tenant (who entered under it) agreed by parol to sub- 
 stitute other premises for those originally taken, to be held on the 
 same terms, constituted a new contract, aud not an alteration of the 
 terms of the first {ib.). 
 
 A distress can only he made hij law, in respect of a fixed ascertained 
 rent reserved out of land {Gardiner v. Williamson). It frequently 
 happens that j^ersons enter and occupy at a rent to be fixed in future. 
 In such cases no distress can be made, but an action may be brought 
 for the rent on a quantum valehat {Hanwrton v. Stead). No precise 
 form of words is necessary for a distress ; and where a landlord laid his 
 hand on a lathe, and said, " I will not suffer this or any of the things 
 to go off the premises till my rent is paid," it was held that the distress 
 Avas sufficiently commenced to entitle him to the article in question 
 ( Wood V. Nunn.) 
 
 Distress rendered illegal hy improper time of talcing it. — In two cases, 
 in one of which the distress was taken at nearly ^ight o'clock in the 
 evening, when by the almanac the sun set just after seven, and in the 
 other it was taken between two and three o'clock on the morning of a 
 day on which, by the almanac, the sun rose shortly before half-past 
 four, and there was no other evidence upon the point, nor any evidence 
 as to whether in either case it was dark when the distress was taken, 
 but the jury in both cases found that it was taken between sunset and
 
 282 IMPROPERLY WORKING A DISTRESS. 
 
 sunrise, it was held that the evidence was sufficieut to sustain that 
 lindiug, and that the distresses therefore were illegal (Tufton v. Darke ; 
 Nixon V. Freeman). 
 
 Improperly working a distress. — If a distrainor abuses a distress by 
 working it, the owner may interfere and prevent it, and no action can 
 be maintained against him for pound breach or rescue. Here, after 
 three horses of the defendant, who was a butty-collier under the Messrs. 
 Hickman, tenants to the plaintiffs, of a colliery at a surface rent, and 
 also at a mining rent, had been included in a distress for colliery rent 
 levied on the Messrs. Hickman, and removed to a stable half a mile off, 
 and notice given that they were impounded there, the plaintiffs' ap- 
 praiser directed the bailiffs to bring two of them to work in the pit. 
 One of the horses was locked in a movable stable on the pit bank, and 
 the other was about to be let down, when the defendants took forcible 
 possession of both, breaking the lock of such stable, turned both loose, 
 and then took them away. The plaintiffs got a verdict of XGO treble 
 damages under stat. 2 Wil. & Mary, sess. 1, c. 5, with leave reserved to 
 the defendant to enter a verdict for himself on the ground that neither 
 count of the declaration was proved, the rescue being after the im- 
 pounding, and after the plaintiffs had taken the distress from the pound 
 for an unlawful purpose ; and the verdict was entered for the defendant. 
 And 2)er Wilde B. : " Here there was a plain, palpable misuse of the 
 distress of the most aggravated kind. I think, under the circumstances, 
 the defendant was perfectly justified in interfering. I think, therefore, 
 the rescue is not made out. With regard to the pound breach, it seems 
 to be perfectly plain that directly the distrainor has taken the animals 
 out of the pound for the purpose of using them, it cannot be said that 
 they are any longer under the protection of the law, nor in any artificial 
 sense can they be considered as being in the pound contrary to the 
 fact." {Smilh and Anolhcr v. WriyliL) 
 
 Distress after death of tenant. — T being tenant-at-will at a yearly 
 rent, died leaving rent in arrear ; the next day the lessor distrained on 
 the premises which were then occupied by T's servants ; his widow 
 came into occupation the day after, and subsequently took out adminis- 
 tration to her husband. It was held that the distress was not justified 
 under 8 Anne, c. 14, ss. 6, 7, as it was not made " dtiriny the possession 
 of the tenant from whom the rent became due ;" and senible that 
 WaUccrv. Giles (G C.B., GG'2 ; 18 L.J. (N.S.), C.P. 323) is still law as to 
 the construction to be put upon similar deeds, and is not overruled by 
 Pinhorn v. Sonster, (8 Ex., 7C>'6 ; 22 L.J. (N.S.), Ex., 26G), and Brown 
 V. Metropolitan Counties Life Assurance tiociety (28 L.J. (N.S.), Q.B., 
 236; ; and per Mellor J,, ^' Braithwaite v. Cooksey (1 H. Bl., 467), is
 
 OPEN FIELD SUFFICIENT POUND. 283 
 
 distinguishable because the tenancy did not expire Avith the death 
 {Turner v. Barnes and others). 
 
 An open field is a pound sufficient at Jaw in ichich to distrain cattle 
 laJcen fur rent arrear {CastJenuiin v. Hides) per Coleridge J. AVhere a 
 bailiff went a little into the field in which the cattle wei'e, and touching 
 one of them on the side, said, ^^ I distrain t/iese cat tk for rent; "and 
 then, after taking a list of them, left them undisturbed in the field 
 (although he subsequently returned, and then placed them in the 
 charge of another man), without putting any lock or additional fasten- 
 ing on to the gate, and gave notice of distress to the tenant, informing 
 him that if the rent and costs were not paid he would proceed to sell 
 in five days, and adding that the cattle were impounded on the premises, 
 though he did not say where — it was held by the Court of Common 
 Pleas {Maule J. diss.), principally on the authority of Frith v. Purvis, 
 that under these circumstances the impounding of the cattle was com- 
 plete and perfect from the time of giving the notice to the tenant ; 
 and consequently a tender of the rent and costs of distraining, &c., 
 after such incident was too late (Thomas v. Harris). And jjer Tindal 
 C.J : "According to the best construction which I can put upon 11 
 Geo. II. c. 19, s. 10, the impounding of the cattle was complete before 
 the tender was made. A pound, in its strict legal sense, means an 
 enclosed place, where cattle are kept until rent is paid. The words ' or 
 otherwise secure the distress,' used in the statute give a greater latitude, 
 and do not render it imperative on the party to secure them in such 
 pound. For example, cattle grazing in a field, and goods, chattels, or 
 effects placed in a room or other places fit for their reception, may be 
 said to be impounded." 
 
 And so in Tcnnant v. Field, where a landlord sent a broker to distrain 
 for rent upon the tenant's premises, but he did not lay his hands upon 
 any of the goods, to indicate an impounding, &c., and by the tenant's 
 wife's request nothing was done but an inventory taken and a man left 
 in possession, with a notice that the broker had "distrained" the goods, 
 the Court of Queen's Bench held that this was an impounding under 11 
 Geo. II. c. 19, and that the landlord was not bound afterwards to accept 
 a tender of rent. And per Lord Campbell C.J. : '• The consent of the 
 parties makes this case like a room being the pound, a man being left 
 in possession. This, I think, was equivalent to an actual impounding ; 
 and looking at the cases and authorities, I am consequently of opinion 
 tliat there was an impounding before tender." Frle J. said : "I agree 
 with the rest of the Court, because the tenant's conduct showed that 
 he agreed to the goods being left where they were. The statute shows 
 that there may be an impounding on the pi-emises ; but I certainly
 
 2Si FRAUDULENT TvEMOYAL OF GOODS. 
 
 coaciiv in the observations of Jlatile J. in Thomas v. Harris, that the 
 rational interpretation of this remedy is to enable the landlord to get 
 what is dne for rent and costs, the amount of wliicli there can be no 
 difficulty iu ascertaining." 
 
 ^-1 distress can only he made letween sunrise and sunset ; and it was 
 held in Tifd'Ier v. Prentice that in pleading a tender of rent on the 
 land, it must be shown that the tenant was on the land time enough 
 before sunset to have counted the money. A distress must be made on 
 the land from which the rent issues ; but where a farm adjoins a high- 
 way, goods standing on such highway within the middle of it, and on 
 that part next to the demised premises, may be distrained {Hodyes v. 
 L(urrence). "Where a landlord distrains for more than is due for rent, 
 an action on tbe case lies, though the goods distrained are of less value 
 than the rent really due ; and it is no defence that after distress, and 
 notice thereof, and before the sale, the landlord served a second notice 
 on the tenant stating the amount really due, and that the distress was 
 taken for that amount only, and would be sold unless that amount was 
 paid {Taylor v. Henniker). A landlord cannot l)reak open yates or break 
 down enclosures to make a distress, but he may open an outer door by 
 turning the key, lifting the latch, or drawing back the bolt (Ryan v. 
 Shilcock). But it was doubted in the same case whether, if the outer 
 door is broken open, the distress is void. 
 
 The 7th section of 11 Geo. II. c. I'J gives power to the landlord — 
 where yoods fraudulently carried away by the tenant, are placed in any 
 " house, barn, or stable,'' &c., locked up so as to prevent such goods 
 " from being taken and seized as a distress for arrears of rent " — " to 
 break open and enter into such house, barn, and stable," &c. It was 
 decided in Rich v. Wooley that a plea under this section, justifying the 
 breaking open a lock to distrain cattle which have been fraudulently 
 removed to elude a distress for rent, must aver that a constable was 
 present when the lock was broken open. Patteson J. observed upon 
 it, in Broivn v. Glenn (whicli settled that a landlord cannot break open 
 the outer door of a stable, though not within the curtilage, to levy an 
 ordinary distress for rent) : " The inference appears to be that the 
 right of the distrainor to break open the door of a stable does not exist 
 irrespectively of that provision." And Lord Cami)bell C.J. considered 
 that " this statute afforded a clear inference that, irrespective of the 
 matters therein provided for, the outer door of a barn or stable could 
 not be broken open for the purpose of executing an ordinary distress. 
 This doctrine is at least not novel ; it was acted upon by Lord Hard- 
 iricke ; and his decision is cited by Mr. Serjeant Williams, in his note 
 to Poole V. Lonyueville. In Penton v. Brown it was decided on
 
 COURSE AS TO SURPLUS FROM DISTRESS. 285 
 
 demurrer tluit the outer door of an ouiliouso might Im Irolmi open for the 
 purpose of executing a fieri fcicias. This, however, is not inconsistent 
 with our decision ; for a distinction may be reasonably made between 
 the powers of an officer acting in execution of legal process, and the 
 powers of a private individual who takes the law into his own hand, 
 and for his own purposes. There is another well-known distinction, 
 that a landlord cannot distrain at all hours, whereas the sheriff is under 
 no such restriction." 
 
 A landtord or bailiff who has distrained, even if not lomid (as sembte 
 he is) to restore goods remai?iing vnsold to the premises on which he dis- 
 trained them, is at liberty to do so ; and his doing so will not be a 
 conversion, even although they are the goods of third parties, and the 
 bailiff has had notice of this from them after the impounding, and has 
 promised to act on the notice, both as to the goods unsold and the 
 surplus proceeds of goods sold : for such a promise does not impose 
 any duty on the bailiff to deliver the goods to the right owner, neither 
 will it sustain an action for money had and received to recover the 
 surplus proceeds of the goods sold {Evans v. Wright). 
 
 Where goods distrained for rent in arrear have been removed to a 
 convenient place for sale, and sufficient sold to satisfy the distress, the 
 proper course is for the broker to leave the surplus money with the 
 sheriff, and return tlie surplus goods to the premises from whence he 
 took them {Evans v. Wright) ; and, where a broker has distrained for 
 rent the right goods of the tenant, the landlord, having authorised the 
 distress, is liable for any irregularity committed by him in the sale 
 of such distress, although doue without his knowledge {HaseJer v. 
 Le Mogne). 
 
 Tilings are not distrainalte irhich cannot he restored in the same plight 
 in which they were before the distress, and as Patteson J. observed of 
 fixtures, in Darhg v. Harris, the reason would be more apparent in 
 former times, when the landlord was obliged, on distraining, to remove 
 the distress from the premises. 
 
 Until 2 Will & M. c. 5, no sheaves or cocks of corn, loose or in the 
 straw, or hag in ang barn or granarg, or in ang hovel, staclc, or rick, 
 could bg the law be distrained or otherwise secured for rent ; but sec. 3 of 
 that statute gave the landlord power to seize it upon any part of the 
 land or ground. The common law is not taken away by the above 
 statute, and commodities of a perisliable nature, which cannot l)e restored 
 on a replevin in the same state as that in which they were taken, cannot 
 be made the subject of distress. Hence the carcase of a beast sent to the 
 butcher's {Brown v. Shevill) and the flesh of animals lately slaughtered 
 cannot be distrained {Morleg v. Pincombe). Neither can animals fercB
 
 28G DT^^TRATXTNG IMPLEMENTS OF HUSBANDRY. 
 
 naiunv, thougli deer may which are put np to fat ( DaviH y. Powell). 
 Wearing apparel, if in actual use, cannot be distrained, nor whatever 
 else is in actual use at the time ; and goods sent to any place by way 
 of trade, but not to remain there permanently, are within the exception. 
 A /id so a horse wJien lie goes to he shoed, or faJces corn to market, is 
 exempt, as well as when a person is actually riding it. Slteej) and leasts 
 of plough are privileged by 51 Hen. III. 6*/. 4, while there is another suffi- 
 cient distress, unless they are found damage feasant. But an action is not 
 maintainable for distraining beasts of the plough when there is no 
 other sufficient subject of distress on the premises beside growing crops 
 (Piggott V. Birtles) ; for the landlord has a right to resort to the subjects 
 of distress which can be made immediatelg available ; and beasts of the 
 plough are distrainable for arrears of poor-rate (Rutchins v. Chamhers) 
 when there were other things that might have been distrained, and 
 exceeding the value of the demand. An implement of trade is only 
 privileged if it be in use, and if there be no other distress on the 
 premises (Fen ton v. Logan). Here the threshing machine had been let 
 to hire by the plaintiff to the tenant, on whom the defendant in replevin 
 had distrained. The work for which it was let had been completed on 
 the Saturday, and the distress was made on the next Monday, when 
 there was- no other distress on the premises. Gorton v. Falhier was 
 decisive against the plaintiflF. And see Lord Lyndlmrst C. B.'s judgment 
 in Wood V. Clarke. 
 
 An action of trespass will lie for distraining tools or implements of 
 trade and industrg (here a spade and dung forlc), though not in actual 
 use, if there he other sufficient distress on the premises at the time (Nargatt 
 V. Nias), Lord Camphell C.J. thus remarked on Piggolt v. Birtles, 
 Yolland v. Price, Hutchins v. Chamhers, Dawson v, Alford, and Fitz- 
 herbert's Katura Brevium, 90, which were cited in support of the rule : 
 " On examining the cases cited in the argument, we do not find any 
 which decides that trespass is not maintainable. The precedent cited 
 from Fitzherbert, is classed under the head " Writ of Trespass" ; and 
 in Corayn's Digest, " Trespass, &c.," it is laid down that trespass will 
 lie for an unlawful distress of goods, and the same precedent, as in 
 Fitzherbert, is there referred to in support of that position. 
 
 Piggott V. Birtles was an action on the case, in which the plaintiff, 
 by one of the counts in the declaration, complained of the distraining 
 his beasts of the plough, there being other chattels on the premises ; 
 and the only matter decided in that case was respecting the distress of 
 beasts of the plough, that they were distraina])le when there was no 
 other sufficient distress on the premises besides growing crops. In 
 Uuicluhs V. Chamhers, there were two distresses under the same war-
 
 DISTEAINIXG BEASTS OF HUSBANDRY. 287 
 
 rant ; under the last distress beasts of the plough were taken, there 
 being at the time more than sufficient to answer the demand. The 
 first distress proved insufficient in value, whereupon a second distress 
 was made, which was excessive, and in it were also included beasts of 
 the plough. In that case, there were three questions calling for the 
 decision of the Court : first, whether in the last distress beasts of the 
 plough could be distrained for at all, if there were other things of suf- 
 ficient value upon the premises ; secondly, whether the second distress 
 under the same warrant was at all justified ; and thirdly, whether the 
 second distress being excessive, that circumstance alone was not suffi- 
 cient to maintain the action of trespass. On the first point the Court 
 was of opinion that beasts of the plough were distrainable under 4?> 
 Eliz. and such like Acts of Parliament, and upon the second and third 
 questions the Court held, that if a man makes a distress which is in- 
 sufficient in the value of the goods, and afterwards on discovering the 
 mistake makes a second seizure, in that case an action of trespass can- 
 not be maintained for taking an excessive distress. With respect to 
 Jenner v. YoUand, which was an action on the case, for distraining 
 beasts of the plough, where there were other goods of sufficient value 
 which ought to have been distrained, the matter in dispute was, 
 whether the value of the other goods was to be judged of at the time 
 the distress was originally made, or whether it was to be ascertained by 
 the subsequent sale ; and the Court held that the legality or illegality 
 of the distress was to be determined by the circumstances of the dis- 
 tress at the time it was made. The judgment of Wood B. puts the 
 case very clearly, and there is nothing in that case to show that tres- 
 pass will not lie if tools of trade are illegally taken. It is true there 
 are precedents for making the illegal distress of tools of trade the 
 subject of an action on the case ; but there are also many authorities 
 which show that the wrongful taking may be the ground of trespass, 
 and yet the party aggrieved may, if he pleases, waive the trespass 
 and sue in case. The view that we have taken, that the wrongful 
 seizure of tools of trade is the subject matter of an action of tres- 
 pass, is fully confirmed in Dawson v. Alford, which shows that it 
 is not necessary for the plaintiff in his declaration to allege that 
 there were other goods of sufficient value, which might have been 
 distrained, but the defendant must by his plea answer, if he justi- 
 fies, that no other sufficient distress could be had. The rule must be 
 discharged." 
 
 y^havQ the sheep of a third person Ofi the land of a tenant were distrained 
 ly the landlord for rent, when other things availalle for the distress were 
 upon the premises, in an action against the landlord by the owner of
 
 288 DI^^TRrSS NOT LEGAL AFTER DETEUMIXATION OF TENANCY. 
 
 the sheep, the Court of Exchequer hehl that the mcasinr of damafjcs ivcip: 
 the value of the shee^j {Keen v. Priest). 
 
 Tithes are an incorpoi-eal hereditament, aud cau tlierefore only pass by 
 deed. It was held in Gardner v. Williamson, Avhere tlie tithes of a 
 parish and a homestead were let together by parol agreement, no dis- 
 tinct rent having been reserved for the homestead, for which there 
 might have been a distress that the distress for rent in arrear was alto- 
 gether unlawful. And per Parke J. : "It is impossible to say that all 
 the rent in this case is reserved in respect of the land only ; aud there 
 can be no distress for rent ensuing out of any incorporeal hereditament. 
 The rent is payable for, though it does not issue out of, the tithes." 
 
 .1 distress cannot he made at common law after the tenancy has leen 
 determined hj notice to quit, though the rent may have become due lefore 
 such determination: aud an avowry for such a rent must therefore be 
 so framed as to bring it within the 8 Anne, c. 14, s. G {WiUiams v. 
 Stiren). Here the defendant gave the plaintiff a notice to quit expiring 
 on Feb. 2nd, 1844; and it was contended, on the authority of Jenncfr 
 V. Clegg, that the defendant having by his notice to quit treated the 
 plaintiff as a trespasser, could not afterwards treat him as a tenant. 
 Jenner v. Clegg, a case of replevin, where Parlte J. and Bolland B. 
 decided that a tenant holding over after notice to quit given by the 
 landlord, is not liable to a distress without some evidence of a renewal 
 of the tenancy,— was cited. The Court, however, held that this case 
 was not ai)plicable, as the rent there distrained for l)ecame due after the 
 determination of the tenancy by notice to quit from the landlord. And 
 per Patteson J., " All that Jetiner v. Clegg shows is that the tenancy is 
 at an end when the notice expires." A landlord having treated an 
 occupier of his land as a trespasser, by serving him with an ejectment, 
 cannot afterwards distrain on him for rent, though tlie ejectment is 
 directed against the claims of a third person, who comes in and defends 
 in lieu of the occupier, and the occupier is aware of that circumstance, 
 and is never turned out of possession (Bridges v. Smgih). 
 
 In Bendy v. Kichol a tenant hroke a covenant not to underlet without 
 consent. After the breach, the plaintiff brought an action for the rent, 
 and subsequently obtained judgment and received the money. Before 
 he received the money he brought an action of ejectment. The Court 
 of Common Pleas held that the bringing of the action for the rent and 
 the subsequent recei pt of the money amounted to a waiver of the for- 
 feiture. Thus a right of re-entry for breach of covenant is waived by 
 the lessor bringing an action for rent accrued due subsequent to the 
 breach. 
 
 One joint tenant of the reversion can, by severance, deprive the others
 
 ACTION FOR RENT BY TENANTS IN COMMON. 289 
 
 of their right to distrain for rent ah'eady due, and this hardship is an 
 incident to that species of property ; all remedy for the rent is not 
 gone, but an action may be clearly brought in the name of all, as before 
 the severance of the reversion an avowry must have been by all 
 {Staveley v. AUcoclc). K^vd. per Patteson J. : "An authority is required 
 to show that, by the severance of the reversion, the rent already due to 
 the six was apportioned." A terre tenajit, holding under two tenants in 
 common, cannot pay the whole rent to one after notice from the other not 
 to pay it ; and if he do, the other tenant in common may distrain for 
 his share {Harrison v. Barnlnj). And per Abbott C.J., in Poivis v. 
 Smith, "It is clear that if there be a joint lease by two tenants in 
 common, reserving an entire rent, the two may join in an action brought 
 to recover the same ; but if there be a separate reservation to each, there 
 must be separate actions. Here, by the original contract, there was 
 a letting of the whole premises by the two tenants in common at an 
 entire rent ; afterwards the rent was severed. It became a question of 
 fact upon the whole evidence, whether the parties thereby meant to 
 enter a new contract, with a separate reservation of rent to each, or 
 whether they meant to continue the old reservation of rent, each of 
 the plaintiffs receiving his own moiety." 
 
 It is a well-known rule that the action for rent by tenants in common 
 is in its nature a joint action, and consequently upon a lease by them 
 the survivors may sue for the whole of the rent, althougli the reserva- 
 tion be to the lessors according to their respective interests {Wattace v. 
 Maclaren). And they can recover an ejectment under the Common 
 Law Procedure Act (1852), on a joint writ, the whole of the property 
 to which they are entitled {Elliss v. Elliss). A tessee ivho under- teccses 
 for tess titan Ms whote estate in the term has a power of distress {Wade v. 
 Marsh), but not where he demises the whole of his interest {Preece v. 
 Carrie). In Parmenter v. Webber the lessee of two farms agreed with 
 the plaintiff that he should have them during the leases for the same 
 price, and remain his tenant, with the stipulation that he should farm 
 according to the tenor of the leases, and incur forfeiture and be paid for 
 the fallows and dung on leaving the farms. The plaintiff took posses- 
 sion, and paid one year's rent growing due after the date of the agree- 
 ment to the sub-lessee, who afterwards distrained for the rent in arrear. 
 The Court held that the agreement did not operate as an underlease, 
 but as an absolute assignment by the defendant to the plaintiff of all 
 the defendant's interest in the farms, and that therefore the defendant, 
 having no reversion left in him, could not legally distrain. 
 
 A demise by a tenant from year to year to another atso to hotdfrom year 
 to year, is in legal operation a demise from year to year during the con- 
 
 u
 
 290 DISTEAIN OF AWAY-GOING CROPS. 
 
 tinuance of the original demise to the intermediate landlord {Pilce v 
 Eyre). According to Curtis v. Wheeler, a tenant from year to year 
 under-letting from year to year has a right to distrain ; and per Pollock 
 C.J., the above two " cases show that if a tenant from year to year 
 demises for a term of years, and the original tenancy from year to year 
 lasts beyond that term, such a demise is not an assignment, but there 
 is a reversion on which covenant may l)e maintained." {Oxley v. James). 
 In Geeclcie v. Monl; and D. d. Monk v. Geeckie, Rolfe B. ruled that 
 //, whilst a tenant from yceir to year is in possession of lands under an 
 agreement reserving a certain rent, he agrees with his landlord to pay an 
 'increased rent, this will not have the effect of creating a 7iew tenancy. 
 Where the occupier under an agreement for a lease at a certain rent 
 pays the rent, he becomes tenant from year to year on the terms of the 
 agreement, and the landlord may distrain {3Iann v. Lovejoy). This was 
 also a case of replevin ; and Hegan v. Johnson and Dunk v. Hunter 
 were cited for the plaintiff in support of his position, that if the holding 
 is mider a mere agreement for a lease there can be no distress. 
 
 In Knight v. Bennett, the plaintiff occupied a farm according to the 
 terms of cm oral agreement (which did not fix the rent, but only the time 
 of paying it) for a ten years' lease, which was never executed, and paid 
 a certain rent for two years ; and the Court held that he was tenant from 
 year to year, and that the lessor might distrain for arrears accordmg to 
 the rate which the plaintiff had paid. " 
 
 In another case between these parties, it appeared that by agreement, 
 as well as by the custom of the country, the tenant was to have the nse of 
 the ham and gate-rooms to thrash out his corn and fodder his cattle till 
 the May-day after the expiration of his term. His term expired at 
 JMichaelmas, and he was then restrained by injunction from carrying 
 off the premises corn in the straw. In January his landlord distrained a 
 rick of corn on the premises, and it was held that the distress was valid. 
 Beavan v. Delahay decided that a custom thcd a tenant may leave his 
 cmaij-going crop in the hams of the farm for a certain time after the lease 
 is expired, and he has quitted the premises, is good ; and the landlord 
 may distrain the corn so left for rent arrear after six months have expired 
 from the determination of the term, notwithstanding the statute 8 Anne, 
 c. 14, ss. G & 7. And see Lewis v. Harris. 
 
 It was held in NuttaU v. Staunton, where a tenant ly permission of the 
 landlord remained in possession of part of a farm after the expiration of the 
 tenancy, that the landlord might distrain on that part within six months 
 after the expiration of the tenancy, stat. 8 Anne, c. 14, ss. G k 7, not being 
 confined to a tortious holding ovci', or to the holding of the wdiole farm. 
 kxAper Pcdleson i., in Taylcrson v. Peters: '' To bring a case within
 
 DISTEAIN" OF GROWING CROPS. 291 
 
 section 7 of the statute o^ Anne, the continuance of possession may be 
 either tortious or otherwise. In Nuttall v. Staunton it was by permis- 
 sion, and in Beavan v. Delahaij possession was continued under a custom. 
 But to make the statute applicable there must be a keeping as the 
 party's own, to the exclusion of other people. Ti]at fact is wanting 
 here." In this case a cow and some pigs, of the Talue of £17 1G5., 
 were taken as a distress for rent due from the plaintiff for a farm and 
 buildings. He had received notice to quit on May 13, 1835, when his 
 time of holding expired. The distress was put in May 22, and between 
 those periods the plaintiff, Avho still remained, was asked by the incom- 
 ing tenant, whose term had commenced, when he meant to leave. He 
 said he did not know ; but went away before the distress, leaving the 
 above animals on the farm. He did not ask permission to do so, nor 
 did he on leaving state his intentions. The new tenant entered, but 
 did not get complete possession till May 22. On that day, and before 
 the distress was put in, he had possession of the whole farm, unless 
 there was a continued possession by the plaintiff. A verdict was 
 given for the defendant ; but the Court, who solely decided the point 
 whether the distress made after the expiration of the term was justified by 
 statute 8 Anne, c. 14, ss. 6 & 7, ordered one to be entered for the plaintiff. 
 
 In the case of PoUit v. Forrest the Exchequer Chamber decided that 
 a lessor cannot distrain under an agreement not under seal which gives 
 him power to recover penalties by distress as for rent in arrear, thus 
 reversing the decision of the Court of Queen's Bench. 
 
 It was decided in the Exchequer Chamber, reversing the decision 
 of the Court of King's Bench, that growing crops cannot he taken under 
 the power to distrain for the arrears of an annuitg {Milter v. Green). 
 
 But in Joltnson v. Faulkner the Court of Queen's Bench held that 
 hay, corn, and straw, loose or in the stacJv, or in trusses, may be dis- 
 trained for arrears hy the grantee of a rent-charge, under 2 Witt. & Mary, 
 sess. 1, c. 5, s. 3, and stat. 4 Geo. II. c. 28, s. 5. Lord Denman C.J. said : 
 "It was contended that this statute did not extend to distresses for 
 such rents as that in question, but only to distresses for rent service 
 properly so called ; and Mitter v. Green was cited as an authority in 
 favour of the plaintiff. In that case groiving crops had been distrained 
 for arrears of an annuity, granted by a deed, containing a power to 
 distrain for arrears of the annuity, and to dispose of the distress in all 
 respects as distresses for rents reserved on leases for years might be 
 disposed of; and it was held that though the powers given by statute 2 
 Will & Mary, sess. 1, c. 5, would extend to such a case, the grantee of 
 the annuity could not avail himself of the subsequent statute of 1 1 Geo. 
 II. c. 19, introducing a new suhjecl of distress — the growing crops. 
 
 u 2
 
 292 SEIZUPvE OF CROPS UNDEE A FIERI FACIAS. 
 
 Without at all impugning the authority of that case, it is sufficient to 
 observe that it does not apply to the present. In that case the party 
 making cognizance relied upon statute 11 Geo. II. c. 19, which is in 
 terms limited to ' lessors or landlords ' : in the present, the defendant 
 claims the benefit of the stat. 2 Will & Mary, sess. 1, c. 5, Avhich is 
 more general. If there were any doubt upon this point, it would be 
 removed by stat. 4 Geo. II. c. 29, s. 5, which gives the same powers of 
 distress in cases of rents seek, as in cases of rents under leases, and 
 would therefore entitle the distrainor for such a rent as that in question 
 to all the powers given Inj the precedent statute, 2 Will. & Mary, sess. 1, 
 c. 5, even if not to those given by the suisequent statute of 11 Geo. II. c. 
 19." The grantee of a rent-charge may also take goods of a stranger 
 on the premises charged, as a distress for arrears {ih.). 
 
 By 11 Geo. II. c. 19, s. 8, it was made lawful for every landlord, 
 or person empowered by him, to distrain the stock or cattle on their 
 tenants' premises for arrears of rent, and to seize all sorts of corn and 
 grass, hops, roots, fruit, pulse, or other product whatsoever, which 
 shall be growing, and lay it up when ripe in barns on the premises, 
 or conveniently near them, for the purpose of having it appraised and 
 sold for the satisfaction of the rent. It was held in ClarJc v. Gaslmrth 
 that trees, shrubs, and plants yrowiny in a nursery y round and planted 
 subsequent to the demise, cannot be distrained for rent, and that the 
 word "product" in this section applies only to such products of the land 
 as are subject to the process of becoming and of being cut, gathered, 
 made, and laid up when ripe. By section 9 tenants are to have notice 
 where the "goods and chattels" (which growing crops, according to 
 Glover v. Coles, are considered to be, for the purpose of a replevin) so 
 seized are deposited, and the distress of such growing crops is to cease, 
 if the rent be paid before it is ripe and cut. 
 
 At common laiv growiny crops might le seized and sold under a fieri 
 facias, and were protected from distress by the landlord, unless allowed 
 to remain an unreasonable time upon the land. But, the general right 
 being found to operate in many cases in a manner prejudicial to agri- 
 culture, the 5G Geo. III. c. 50 was passed, in order that the execution 
 of legal process should be so regulated as to be consistent with good 
 husbandry, and the effect and intent of covenants and agreements. 
 This statute is in some respects restrictive of the rights which the exe- 
 cution creditor would have at common law, but in some respects it ex- 
 tends them. By section 1, no sheriff or other officer is to sell or carry 
 off from any lands any straw, thrashed or unthrashed, or any straw of 
 crops growing, «&c., chaff, colder, turnips, tares, manure, compost, 
 &c., hay, grass or grasses, natural or artificial, tares, vetches, roots, or
 
 LAW RELATING TO SEIZURE OF GROWING CROPS. 293 
 
 vegetables, &c., contrary to the covenant. By section 3 the sheriff 
 may dispose of any crops or produce to any person Avho shall agree in 
 writiuo- with such sheriff, in cases luJiere no covenant or ivritten agree- 
 ment shall be shown, to use and expend the same on the land in such 
 manner as shall accord with the custom of the country : and in cases 
 where any covenant or written agreement shall be shown, then accord- 
 ing to it. By section 6 landlords are not to distrain for rent on crops 
 or produce sold subject to such agreement, under the provisions of the 
 act, nor upon any beast whatsoever kept or used upon the land for the 
 purpose of consuming the produce under the provisions of the act, and 
 the agreement directed to be entered into between the sheriff and the 
 purchaser of such produce ; nor on any carts or other implements of 
 husbandry which such purchaser may require. By section 7 the sheriflf, 
 &c., is forbidden under any process whatsoever to sell or dispose of any 
 clover, rye-grass, or any artificial grass or grasses whatsoever, which 
 shall be newly sown, and be growing under any crop of standing corn ; 
 but by section 8 the act does not extend to any straw, turnips, or other 
 articles which the tenant may remove from the farm, consistently with 
 some contract in writing. 
 
 The law relating to growing crops seized under execution was dealt 
 with by section 2 of 14 & 15 Vict. c. 25, which enacts that in case all 
 or any part of the growing crops of the tenant of any farm or lands 
 shall be seized and sold by any sheriff or other officer, by virtue of any 
 writ of fieri facias, or other writ of execution, such crops so long as the 
 same shall remain on the farms or lands shall, in default of sufficient 
 distress of the goods and chattels of the tenant, be liable to the rent 
 which may accrue and become due to the landlord, after any such 
 seizure and sale, and to the remedies by distress for recovery of such 
 rent, and that notwithstanding any bargain and sale or assignment 
 which may have been made or executed of such growing crops by any 
 such sheriff or other officer. 
 
 According to Owen v. Leigh, a tenant whose standing corn and grow, 
 ing crops have leen seized as a distress for rent before theg were ripe, 
 cannot maintain an action upon the case under 2 Will, d- llarg, sess. 1, 
 c. 5, s. 2, against the landlord or his bailiff for selling the same before 
 five days or a reasonable time have elapsed after the seizure. Such sale 
 being wholly void, the plaintiff sustained no legal damage from it, and 
 has therefore no ground of action in respect of it. And per Abbott C.J. : 
 "It was clearly competent under 11 Geo. II. c. 19, s. 8, for the tenant 
 at any time before the corn was ripe to have tendered the rent due, and 
 if after that the landlord had taken the corn, he might have been pro- 
 ceeded against as a trespasser."
 
 291< DAMAGES NOMINAL WHERE CROPS SOLD FOR FULL VALUE. 
 
 Ill Proudlove v. TtmnJoiv, -where a landlord seized aud sold, under 
 distress for rent, growing crops, Avhieli were taken away by the pur- 
 chaser, and it appeared that the crops were sold for llie full value whkh 
 thcij would Iiare fetched if sold at the proper lime, and the rent proved 
 to be due, exceeded the amount fur ^vhich the crops were sold, it was 
 held in an action of trover by the tenant that he was entitled to nomi- 
 nal damages only. Lord Lyndhursl C.B. said: "One asks naturally, 
 what is the damage the plaintiff has sustained? The party making the 
 distress is lawfully in possession, and has a right after a certain time 
 to convert the crops to his own use. He has done that immediately, 
 instead of waiting till the proper time. Then, is there any rule of posi- 
 tive law Avhich prevents his right to deduct the rent ? Before these 
 acts were passed, a party guilty of an irregularity in making a distress 
 became a trespasser ah inilio. So here, reasoning from that, the de- 
 fendant would have been a trespasser. Then came the 11 Geo. II. 
 c. 19, s. 19, Avhich says that the party shall not be deemed a trespasser 
 ab initio, but the party aggrieved shall recover full satisfaction for the 
 damage he has sustained by an action on the case." By the express 
 terms of this section the party injured by an unlawful act committed 
 after a lawful distress, is only to recover to the amount of the damage 
 he has actually sustained, and hence the measure of damages was the 
 difference between what the crops would have been sold for if the sale 
 had been regular, and what they actually sold for, which in this case 
 was proved to be more than their value (ib.). Where (joods distrained 
 for rent are sold tcilhoul an appraisement, the measure of damages is 
 the value of the goods minus the rent {Bigejins v. Goode). Growing 
 com sold under a fieri facias cannot be distrained for rent unless the 
 purchaf^er allow it to remain on the ground an unreasonable time after 
 it is rii)e {Peacock v. Purvis). Here a stranger became possessed of a 
 crop of growing corn by purchase, at a sale under a fi.fa., on which 
 the landlord was paid a year's rent. The latter, before the corn was 
 ripe, distrained it for rent due subsequently to the sale, and the distress 
 was held ill. 
 
 Wharton v. Naylor decided that statute S Anne, c. 14, s. 1, malces it 
 v.nlauful to remove (joods taken in execution, wilhout paying one years 
 arrears of rent to the landlord; hut does not invalidale the execution itself. 
 Goods, therefore, so taken are in custodia legis, and cannot be distrained 
 on by the landlord for the year's rent ; and they are equally in custodia 
 legis, for this purpose, whether they are in the hands of the sheriff or 
 his vendee. The principal question here was whether the growing crop 
 BO seized by the sheriff aud sold to the plaintiffs could be distrained for 
 antecedent rent, of which the sheriff' and the plaintiff' had notice, and
 
 CONSTRUCTION OF STATUTE 8 ANNE. £05 
 
 which they neglected to pay. Pallesoii J. said : " Tiie words of the stat. 
 8 Annp, c. 14, s. 1 (which says that no goods shall be liable to be taken 
 by A'irtue of any execution, unless the party at whose suit the execution 
 is sued out shall, before the removal of such goods from off the premises 
 by virtue of such execution, pay to the landlord of the premises rent not 
 exccediug one year), cannot be taken literally. The true construction 
 is given in liiseleij v. Bylc, by Parka B. The meaning is that the 
 sheriff shall not remove the goods unless a year's rent shall be first paid. 
 The seizm'e is \^\^i\A inima facie ; but if the goods be removed without 
 payment of the rent, after notice that it is due, such removal renders 
 the whole proceeding unlawful as regards the landlord, and subjects the 
 sheriff to an action on the case at his suit. The goods, however, in the 
 meantime, until they are removed, are in custodid legis. A hill of sale of 
 ilie goods is not a removal, as was established in the case of Smallman v. 
 Pollard. If indeed the sheriff receives the proceeds under such bill of 
 sale, either from a stranger vendee absolutely, or fi'om the execution 
 creditor constructively, he being an officer of the Court, will be com- 
 pelled on motion to pay over a year's rent to the landlord {West v. 
 Hedges, Henchett v. Kimpson, and see Calvert v. Joliffe) ; but such bill of 
 sale and receipt will not amount to a removal so as to subject him to an 
 action. In the case of growing crops, possibly the sheriff may sell, 
 either for a sum of money to be paid immediately, or for a larger sum 
 to be paid on reaping and removing the crops ; and in the latter case 
 he could not be called upon by the landlord by motion to pay his rent 
 until the time came for removal of the crops. The landlord is in no 
 way injured hj this; for, if there had been no execution, and he had 
 distrained the crops for his rent, under statute 11 Geo. II, c. 19, s. 8, he 
 could not sell them till they were reaped, and must therefore wait for 
 his money till that time. There seems, therefore, to be no reason why 
 he should be held to be authorized by the statute of Anne to do that 
 which at common law he could not do, namely, to distrain goods in 
 custodid legis, but rather that that act intended to give him protection 
 through the liability of the sheriff, in lieu of his right of distress, which 
 is taken away by the seizure under a fieri facias. This appears to be 
 the reasonable construction of the statute of Anne in regard to goods of 
 any kind seized by the sheriff, and it is more strongly so in regard to 
 growing crops, which, although liable to be taken in execution by the 
 common law, were not liable to be distrained for rent until the statute 
 11 Geo. II. c. 19." 
 
 The decision in Peacock v. Par vis was expressly in point, and governed 
 Wright V. Dewes, and the Court in fact considered that the only distinc- 
 tion was that the seizure in the former case was in April, and in the
 
 296 TRREGULAR DISTEESS. 
 
 latter in September. In Wn'f/I/f v, Dcivcs, a tenant's growing crops 
 taken in execution and sold and remaining on the premises a reasonable 
 time for the purpose of being reaped, were held not to be distrainable 
 by the landlord for rent become due after the taking in execution. 
 Such crops having been so taken, sold, and left on the premises, and 
 the arrears of rent paid, pursuant to stat. 8 Anne, c. 14, s. 1, the land- 
 lord could not distrain them for rent subsequently due, on the ground 
 that the purchaser had not entered into the agreement ^Yith the sheriff 
 (to use and expend the produce in a ])roper manner) directed by stat. 56 
 Geo. III. c. 50, s. 3. Nor was he entitled to presume, from the absence 
 of such agreement, that the straw of such crops was sold for the purpose 
 of being can-ied off the land contrary to sect. 1. The question for the 
 Court was, whether the plaintiff, by virtue of a sale from the sheriff, 
 was entitled to the crops discharged from the landlord's right of 
 distress for rent accrued due subsequently to the sale. 
 
 The subject of an irregular distress was very much considered in 
 Rodgers v. Par'ker, which settled that 11 Geo. II. c. 19, s. 19, only 
 entitles a tenant to recover in an action for an irregularity in dealing 
 with a distress where actual damage is i^roved. 
 
 A distress was taken for rent, and goods, instead of being retained 
 for the five days, were sold a day too soon, for which the plaintiff 
 brought an action ; but no evidence was given that the plaintiff had 
 sustained any damage thereby, and a verdict for the defendant, under 
 Cressurll J.'s direction, was upheld by the Court of Exchequer on the 
 authority o? Bodgers y. Parker, as the 11 Geo. II. c. 10, s. 19, only 
 entitles the tenant to recover in an action for an irregularity in dealing 
 with a distress where actual damage is proved (Lucas v. Tarleton). 
 
 A distress can onlij he hi/ law in respect of a fixed ascertained roit 
 reserved out of the land, and therefore where, as in Gardner v. William- 
 son, a lease of a homestead and tithes was granted at an entire rent, 
 and it was void as to the tithes, because it was not under seal, it was 
 held that a distress for all arrear of rent was altogether unlawful, because 
 there was no fixed certain rent reserved in respect of the homestead. 
 
 In Meggison v. Ladg G lam is, where the defendant in replevin being 
 the owner of land and also the lessee of the tithe, which had been com- 
 muted under 6 & 7 Will. IV. c. 71, agreed by parol to demise to the 
 plaintiff the land " tithe free " at a certain yearly rent of £400, and 
 then entered and made a distress for one year's rent in arrear, it was 
 submitted by the plaintiff's counsel, on the authority of the above 
 case, that such agreement to demise was meant as a demise both of the 
 tithe and the lands at that entire rent, and since the demise was not 
 by deed, the tithe did not pass ; consequently there was no certain rent
 
 DISTEAIN OF TRIVILEGED GOODS. 297 
 
 reserved in respect of the land for which the defendant could distrain. 
 Tt was, however, held by the Court of Exchequer that although before 
 the commutation such an agreement might have operated as an agree- 
 ment to demise both tithe and land at that joint rent, yet the agreement 
 being after the commutation, the words " tithe free " were surplusage, 
 since by the 80th section of that act, if the defendant distrained for the 
 rent-charge, the plaintiff would be entitled to deduct the amount from 
 his rent, and consequently there was a holding at a rent of £400, as 
 alleged in the avowry. 
 
 Where a landlord distrains for Ins rent, amonfjsi other things, some 
 privileged goods, he is a trespasser ah initio only as to the goods which 
 were not distrainable ; and if the tenant pays the amount and costs of 
 distress, upon which the distress is withdrawn altogether, the tenant 
 can only recover in trespass, the actual damage sustained by the taking 
 of those particular goods, and not the whole amount paid by him 
 (Harveg v. PococJc). It was urged upon the Court in Price v. Wood- 
 house, that, assuming the right to take a heriot is analogous to a right 
 to distrain, this case put a wrongful seizure on the same footing as a 
 subsequent abuse. But per ParTce B. : *' If a party having "a right of 
 entry to take one heriot, enters and takes two, does he thereby become 
 a trespasser al) initio, both as to the entry and also as to the seizure ? 
 Suppose a landlord enters for the purpose of distraining, and he takes 
 certain distrainable goods, and also some chattels not the subject of a 
 distress, would that make him a trespasser ah initio as to the entry, or 
 only as to the seizure of the chattels ? That question was not consi- 
 dered in Harvey v. Pocock. Here the defendants by their pleas attempt 
 to justify the entry and seizure of one horse as a heriot in respect of one 
 tenement ; and the other horse as a heriot in respect of another tene- 
 ment. Then the construction of each replication is this : Though true 
 it is you entered to take a horse as a heriot duo for the particular tene- 
 ment, yet at the same moment you took another horse not due for that 
 tenement. To make the entry good, it must be good with reference to 
 the seizure. That which is prima facie an election, is shown to be no 
 valid election in point of law, and the seizure of the other chattel 
 renders the defendants trespassers ah initio as to the cntiy, as well as 
 the seizure of the chattels. The defendant may amend his pleas on 
 the usual terms, by stating that Price died seised of two tenements, 
 and that there was a custom to take a heriot in respect of each, and 
 that the horses were seized as heriots for those tenements." 
 
 The proper remedg for talcing an excessive distress, is case upon the 
 statute of Marlhridge {52 Hen. III. c. 4) ; and a landlord is liable to 
 some damages in an action on the case for an excessive distress, where
 
 298 SALE OF FArvMIXG STOCK TAKEN IN EXECUTION. 
 
 the excess consists Avliolly in seizing growing crops, the probable pro- 
 duce of wliieli is capable of bciug estimated at the time of the seizure ; 
 but the measure of damages is not the value of the crops, but the incon- 
 venience and expense which the tenant sustains in being deprived of 
 the management of them, or which he is put to in procuring sureties to 
 a larger amount than he would otherwise have been in replevying the 
 crops {Fi//o/f V. Birflrs). 
 
 In Mouiio V. Blalce the Court of Queen's Bench laid down that 
 " roplcvin is not mainfainahle, vnJess in a case in which there, lias been 
 /in<t a talcing out of the possession of the owner." If a mare in foal or a 
 cow in calf be distrained, and it brings forth while in the distrainor's 
 custody, replevin lies for the foal or calf (Bac. Ah. tit. Replevin) ; and if 
 animals yWvp nalarm have been reclaimed, as deer in a park, an action of 
 replevin will lie for them [Davies v. Powell). 
 
 Section 11 of 56 Geo. III. c. 50, " to regulate the sale of farming stoclc 
 talcen in execution,'' enacts that no assignee of any bankrupt or insolvent 
 debtor's estate, or under any bill of sale, nor any purchaser of the goods, 
 chattels, stock or crop of any person employed in husbandry, on lands 
 let to farm, shall use or dispose of any produce or dressing of such land 
 in any other manner, and fur any other pur])ose, than such bankrupt, in- 
 solvent, or other person so employed in husbandry ought to have used 
 or disposed of the same if tliere had been no bankruptcy, assignment, or 
 sale made. The question in Wihnot Bart. v. Rose was whether this sec- 
 tion gave the plaintiff a right to prohibit the purchaser at an auction of 
 a tenant's cro}) of hay or straw on the farm, from carrying it off the farm 
 contrary to the terms of the lease. The Court held that it did give such 
 power, and w^as not confined to purchasers of what has been taken in 
 execution, and that the nonsuit was wrong. And ^^rv Lord Campbell 
 C.J. : " Ridgwag v. Lord Stafford is not an authority on the construc- 
 tion of this section; it was not brought before the Court." The Bank- 
 ruptcy Law Consolidation Act (12 & 13 Vi<(. c. lOG), which repeals 
 statute G Geo. IV. c. 1(5, and other statutes relating to bankruptcy, has 
 a similar enactment in section ]44. And see also Hull v. Morell on the 
 construction of this statute. 
 
 Whether a landlord mag annex a condition that tlieg sliall be consumed 
 on the jjremises, to the sale of the hag and sfraa; of his tenant which he 
 seizes under a distress, has been the subject of much discussion. In 
 Abbeg v. Fetch the defendant having distrained the hay and straw on 
 the premises of the plaintiff", who held a farm under him, sold them 
 subject to a condition, that the purcliaser should consume them on the 
 premises ; the consequence of which was they produced less than if the 
 sale had been absolute. By the terms of this lease, the plaintiff was
 
 SALE OF HAY AND STRAW. 299 
 
 bound not to cany off the hay and straw grown on the farm. It was 
 contended for the plaintiff, that the selling of the goods subject to the 
 above restriction was a wrongful act, and that the plaintiff' was entitled 
 to recover under the third count of this action (case fur excessive dis- 
 tress) the difference between the price actually obtained, and that which 
 might have been obtained if no such condition had been annexed to the 
 sale. MauJe J. was of opinion that no cause of action had been proved, 
 and a verdict was found for the defendant, with leave to plaintiff to move 
 to enter a verdict for him on the third count. The rule was discharged. 
 Rolfe C. said, '* It seems to me that the 5G Geo. III. c. 50 throws some light 
 upon this point, for the 3rd sect, provides that on an execution against 
 a tenant, the sheriff may dispose of the produce of the land to any person 
 who shall agree in writing to expend it on the land according to the 
 custom of the country, where no covenant or written agreement shall be 
 shown otherwise, avconllng to such covenant or written agreement; and 
 the Gth sect, enacts that the landlord shall not distrain for rent on any 
 such produce which shall have been severed fi'om the soil and sold 
 subject to such agreement." Aad^jer Lord Ahingcr : " A¥hen the land- 
 lord sells under a distress, he should sell no more than the tenant could 
 himself dispose of." 
 
 In Fruslicry. Lee the hay and straw were sold under a condition, that 
 they should be consumed upon the land according to the custom of the 
 country (Norfolk) ; and it was alleged that they had in consequence 
 fetched inferior prices. Evidence was given for the defendant to show 
 that sucli was the custom of the country in the neighbourhood where 
 the land lay ; and Ahlicij v. Fetch was cited as an authority that the 
 landlord had a right to impose such a condition. Atderson B., in 
 summing up, left it to the jury to say whether, according to the custom 
 of the country, the hay and straw could not be removed from the 
 premises ; and if so, whether under those circumstances the goods were 
 sold for the best price. The jury found that such was the custom, but 
 that the goods being sold subject to that condition did not fetch the 
 best price; and upon the whole case they gave a verdict for the plaintiff, 
 damages £51. A rule for misdirection after discussion was discharged 
 by the Court of Exchequer on other points. Parhe B. said, " There arc 
 two conflicting authorities on this subject. In the case of Jones v. 
 Hanip, Patteson J. ruled at Nisi Prii/.s that the landlord had no right 
 to annex such a condition to the sale. Mr. Richards moved for a new 
 trial against that ruling in this Court, on the 25th of April, 1840, and 
 the rule was refused on that point. That case was not referred to in 
 Abicy V. Fetch. It must therefore still be considered as a disputed 
 question." Alclerson B. also expressed himself much impressed with
 
 300 UNREASONABLE DISTRESS. 
 
 Mr. Kelly's argument at the trial against the decision in Abbri/ y. 
 Pckli, that the landlord may sell it subject to such consuming condition. 
 That argument was to the effect that, if that case were law, the land- 
 lord would haye the power of authorizing any number of persons to 
 come upon the land for depasturing the hay and straw during the 
 occupation of the tenant. 
 
 The fticts of Ixodon v. Ei/ton were as follows : the plaintiff had been 
 tenant of a farm, which he cpiitted at Lady-day, 1847, leaying thereon 
 three ricks of corn, his property. By the agreement under which he 
 held the farm, he was bound to consume all the straw, &c., grown on the 
 farm upon the premises. The defendant seized the largest rick as a 
 distress for £39 arrears of a rent-charge, imposed upon the premises 
 under the Tithe Commutation Act, caused it to be valued by two 
 persons who were not professional appraisers, and sold it upon the 
 terms of the purchasers, leaving the straw on the farm. The agreed 
 value of the straw was £20, and of the wheat when severed from it, 
 £42. There was no evidence as to the value of the other two ricks. 
 The plaintiff insisted that the defendant had no right to sell the w'heat, 
 as he did, apart from the straw ; while the defendant contended that 
 the tithe owner was justified in acting upon the condition under which 
 the plaintiff had held the farm, and relied on Abbe// v. Pefclt. Piatt B. 
 acting on that authority directed the jury to find for the defendant, 
 with leave to move to enter a verdict for the plaintiff on the second 
 count (excessive distress), with nominal damages, if the Court should 
 be of opinion that the sale ought to have been unconditional. The 
 Court refused the rule, and merely decided that the seizure under the 
 circumstances did not constitute an excessive distress. Wilde C.J. said, 
 " It appears the entire value of the rick here seized was £62, the value 
 of the wheat being £42, and that of the straw £20, and the claim in 
 respect of which the seizure took place was £39. The value of the other 
 ricks did not appear. There being a question whether the straw could 
 be legally sold, inasmuch as the tenant was under covenant with his 
 landlord to consume all the hay and straw upon the farm ; the tithe 
 owner seized the whole rick (which being an entire thing I think he 
 was justified in doing), and sold the wheat only, leaving the straw upon 
 the land to be enjoyed ]>y whoever might be legally entitled to it. 
 Looking at the amount of arrears, and at the value of the rick, I think 
 it is impossible to say the distress was unreasonable." In reference to 
 Abbey v. Petrh his lordship observed, "It certainly does seem to be a 
 startling proposition to say that the distress may be sold subject to its 
 being used upon another man's premises. But how is that case any 
 authority where the straw is not sold at all, but expressly required to be
 
 EXCESSIVE DISTRESS. SOt 
 
 Jeft upon the premises ? It being a disputed question whether the straw 
 could be sold or not, the defendant sells that which he has a right to, 
 and leaves the rest." 
 
 Ridgway v. Lord Stafford overruled Ahhcy v. Pekh. It was in case 
 for excessive distress, the fifth count charging the defendant with seUiiig 
 tlte plaint ff''s hay and manure under imjjrojjcr conditions and restrictions, 
 and for less than the liest prices. The plaintiff was tenant to the defend- 
 ant under a lease, by the covenants of which the plaintiff was bound to 
 consume all the hay and manure on the premises made thereon. The 
 defendant had distrained the hay and manure, and sold it subject to 
 this condition, and the sale had in consequence of this condition not 
 realized the amount it would if it had been absolute. The defendant 
 under Not guilty contended that he was justified in selling the goods on 
 such terms, and leave was reserved to defendant to move to reduce the 
 verdict from £166 15^. to £2Q 15s. Pollock C.B., in refusing a rule, 
 said, " The question raised on the motion made to reduce this verdict 
 was this, viz., whether when crops are taken as a distress, upon the 
 farm of a tenant, who is bound by the covenants of his lease to expend 
 such crops upon his farm, the crops ought to be sold with reference to 
 that covenant ; and whether if they are so sold, and on that account 
 fetch, as they naturally would, a much lower price than if sold without 
 such a condition, the landlord so seizing and selling them is liable to an 
 action for not selling for the best price. We think that in this case 
 there should be no rule, as we are of opinion that the effect of the 
 decisions upon the subject make the proposition plain." " On the 
 Avhole, therefore, we consider it to be decided that the sale of such pro- 
 duce, if it take place at all, ought to be irrespective of any covenants to 
 expend it upon the premises. A covenant to expend the produce on the 
 land is a covenant that cannot run with a chattel, and it is quite plain 
 that the tenant himself would have the power to sell without such a 
 condition, but would only be liable to his landlord for a breach of cove- 
 nant. If, therefore, he clearly might send the goods to market, and 
 sell them, the landlord who seizes the property must sell it in the 
 ordinary way, and for the best price." 
 
 Wliere the defendant received a certain sum from the plaintiff for a 
 personal chattel, which hoth parties 'knew to have leen Irovght lender an 
 execution, and the plaintiff was prevented from taking possession of it by 
 a third party, who claimed under a superior title, it was held by the 
 Court of Queen's Bench that under such circumstances there was no 
 implied warranty of title by the defendant, and that the plaintiff could 
 not recover back the price paid by him, as upon a failure of considera- 
 tion {Chapman v. Speller). The true consideration here was the assign-
 
 502 NON-DELIVERY OF GOODS SOLD AT SHERIFF'S SALE. 
 
 ment of the right, whatever it was, that the defendant had acquired by 
 his purchase at the sheriff's sale, and that had not failed. But qimre 
 whether the vendor of a personal chattel is bound to refund the price if 
 he has no title (/&.). 
 
 The Hon-(Mivcnj of goods sold at a sheriff's sale was much considered 
 by the Court of Queen's Bench, in Wood v. Manleij, where the plaintiff's 
 landlord distrained on him for rent, and seized some hay which was 
 sold on the premises. The conditions of the sale, to which plaintiff was 
 a party, were that the purchasers might let the hay remain on the 
 premises till the next Lady-day, and come on the premises when they 
 liked to remove it. The defendant purchased some hay, and on January 
 2Gth the |>laintiff served a notice on him not to commit any trespass on 
 the plaintiff's premises; and in spite of a written demand, accompanied 
 with the threat of an action, refused to let him have it. Accordingly, 
 on :March 1st, the defendant broke open the gate and carried the hay 
 away. ErsJcme J. told the jury that if the plaintiflp assented to the con- 
 ditions of sale at the time of the sale, this araoiuited to a licence to enter 
 and take the goods, which licence was not revocable, and he therefore 
 directed them to find on this issue for the defendant, if they thought 
 the plaintiff had so assented. The Court refused a rule for a new trial. 
 They considered the licence so far executed as to be irrevocable equally 
 with that in 7\f)/Ier y. Waters. 
 
 Trurer lies against a landlord who 'iiiaJres a second distress for the same 
 rent, n-hen he might hare tahen stif/icie/it at frst, or irhere having taken a 
 sufficient distress at first he roliintaritg abandons it {Daicson v. Cropp.) In 
 Lee v. CooU it was held by the Exchequer Chamber, affirming the judg- 
 ment of the Court of Exchequer, that if there is a fair opportunity, and 
 no legal cause ivhg a distrainer should not worJc out payment ly means of 
 a single distress, it is his duty so to worlc it out, and he cannot laufully 
 distrain again ; but if the purchaser of the goods distrained is prevented 
 from getting them by the wrongful act of the distrainee in converting 
 them to his own use, and has never had an opportunity of getting them, 
 a second distress is lawful. 
 
 In this case the defendant {one of the General l)i-ainage Commis- 
 sioners) distrained a stack of the plaintiff's standing upon his land; 
 and whilst still standing there, it was knocked down to one Leverton at 
 an auction. It was a condition of the ready-money sale that purchasers 
 should remove lots at their own expense, take possession, and pay at 
 the fall of the hammer, or with the auctioneer's permission at the close 
 of the sale. After the sale the auctioneer left the stack for the purchaser 
 to take away; but he did not do so then. Upon his going to the 
 premises four days afterwards with his cart for ihat purpose, the plain-
 
 INTERPLEADER. 303 
 
 tiff, who at the sale had said, " It would be one thing to buy the stack, 
 and another to take it away/' assaulted him and prevented him from 
 removing it, and kept and converted it, Leverton never paid the price ; 
 but the jury found that he had never had at any time after the sale an 
 opportunity of taking the stack away ; and upon these facts it was held 
 that the distress having been rendered abortive by the wrongful acts of 
 the plaintiff, a second was law-ful. Wightman J, thus distinguished it 
 from Bagge v. Mawlnf: " There the creditor, who subsequently became 
 assignee under the bankruptcy, had merely threatened the landlord to 
 hold him accountable if he proceeded with the distress, and the landlord 
 upon the threat ^vithdrew. If no more than that had been done here, 
 the case would have come within the principle of that decision; but 
 here the plaintiff has converted the distress to his own use, and deprived 
 Leverton of it for ever." 
 
 Unregistered transfer of growing croj) good against execution creditor. — 
 A creditor having agreed with his debtor to take a growing crop in satis- 
 faction, and the dehtor having given him a receipt for the amount of the 
 debt as if for money paid on a sale of the crop, and the creditor having 
 taken possession, it was held by Wightman J., that the transfer though 
 not registered was good as against an execution creditor {Neicman v. 
 Cardinal). 
 
 Interpleader.— 'SS\\QXQ an execution has been levied, and a landlord 
 makes a claim upon the sheriff for rent, which the execution creditor 
 lias not expressly disputed, whether as regards the amount of rent due 
 (on the construction of the lease), or as regards the liability of the 
 property which has been seized to distress, the sheriff is not entitled to 
 an interpleader, at all events unless the landlord claims any part of the 
 property ; and semhle that in no case where the claim is for rent can 
 there be an interpleader {Bateman v. Farnsivortli). 
 
 Distress an affirmation of tenancg. — A landlord by distraining for rent 
 afEi-ms the continuance of tlie tenancy up to the day when the rent bo 
 distrained for became due, A tenant under a lease at a quarterly rent 
 of £80 payable quarterly, with a clause for re- entry if the rent should 
 be in arrear for 21 days, was in arrear £60 for three quarters at 
 Michaelmas ; for these arrears his landlord on October 2nd took a 
 distress, which on October 16th realised £27 6.?., leaving due £32 14s,, 
 there being no sufficient distress upon the premises. On November 2nd, 
 the landlord (under the Common Law Procedure Act 1852, s, 210) 
 served a writ of ejectment. It was held by the Court of Common Pleas, 
 that the landlord had affirmed the continuance of the tenancy up to 
 Michaelmas, and that as half-a-year's rent was not in arrear at the time 
 the writ was served he could not recover. And jat Curiam : '■'■ The
 
 uOl- DISTRESS AN AFFIRMATION" OF TENANCY. 
 
 statute 4 Geo. 11. c. 28, s. 2, for which the 210th section of the Common 
 Law Procedure Act is substituted, enables a landlord to proceed under 
 it only in cases where there shall be half-a-year's rent in arrear, and a 
 right to re-enter for the non-payment thereof, i.e. for non-payment of 
 half-a-year's rent, see {Doe dcm. Dixon v. Hoc, 7 C. B. 134). In the 
 present case, therefore, no right to re-enter in respect of the rent due 
 for the half-year which ended at Michaelmas could be relied on, because 
 it never was in arrear for 21 days. But it was contended that at all 
 events a complete title accrued on the 21st day after the Midsummer 
 rent became due, and Doc v. tShanrross (3 B. & C. 752) was cited." 
 
 " That case certainly shows that in cases to which the Act applies, 
 the title accrues at the time when the demand of the rent ought to have 
 been made at common law. But the statute authorises the service of 
 the writ ' as often as it shall happen that one half-year's rent shall be in 
 arrear ; ' and in the present case, there was no such arrear at the time 
 the writ was served. The case therefore is not within the Act, unless 
 the words ' shall be ' ought to be construed 'shall have been.' But there 
 is nothing unreasonable in supposing that the statute meant to confine 
 its operation to cases where the tenant was six months in arrear at the 
 very time when the landlord had recourse to this statutory remedy. It 
 is not, however, necessary for us to decide this point, because we are 
 clearly of opinion that the plaintiflF waived any breach of the conditioii 
 of re-entry, which accrued earlier than Michaelmas, by distraining for 
 the Michaelmas rent. Had the distress been confined to the rent due 
 at Midsummer, it would not have waived the forfeiture for the non-pay- 
 ment of that rent, as appears by the case of Brewer v. Eato7i (3 Doug. 
 230), which was cited for the plaintiffs. But the distinction is plain, 
 that though a distress in respect of rent due accruing before the breach 
 of condition is no waiver of it, yet a distress for rent accruing after such 
 breach, with notice of it, is a waiver of it, because such a distress 
 affirms and admits the continuance of the tenancy up to the day when 
 the rent so distrained for became due. If it were otherwise the plaintiffs 
 would by this action establish their right to the possession of the 
 demised premises, and to deal with the defendant as a trespasser at a 
 date anterior to Michaelmas, although the plaintiff's by their distress 
 have treated the defendant as having been rightfully in possession as 
 tenant up to that date " {Cotesivorth and Another v. Spokes). 
 
 Sheriff not enlitled lo immdaije. — Where after seizure of goods under 
 writ of execution, but before mle, the judgment and subsequent proceed- 
 ings are set aside for irregularity, and the goods are therefore not sold, 
 the sheriff is not entitled to poundage {Miles v. Harris). 
 
 Measure of damages in case of trespasser at) initio. — AVhere a landlord
 
 WHERE LANDLORD TRESPASSES AB INITIO. 305 
 
 distrains for rent actually due in such a manner that he is throughout 
 a trespasser ah iniHo, and does not merely become such by reason of an 
 irregularity subsequent to entry, the measure of damages in an action 
 of trespass brought against the landlord by the person so distrained 
 upon is the fuU value of the goods taken, and the jury, in estimating 
 the damages, ought not to make any deduction from such value in 
 respect of the rent which was actually due. And per BlacMurn J. : 
 "Where a party sues for a taking of his goods, and the defendant had an 
 interest in the goods, there is very little doubt that the defendant may 
 deduct the value of that interest from the damages of the taking. That 
 was, I think, the principle proceeded on in Proudlove v. Twemlow (1 Cr. 
 & Mee. 326) and in Chinery v. Viall (29 L.J. N.S. Ex. 180). Here 
 the landlord was a trespasser ah initio, and did not merely become so by 
 an irregularity after entry so as to be protected by the statute of Geo. II. 
 The case of Keen v. Priest (4 H. & N. 236) is clear against my ruling, 
 and, as I now think, rightly so " {Attach v. Bantell). 
 
 In the case of Orimivood v. Moss (7 L.R. C.P. 360). A lease of a 
 farm contained a condition of re-entry for breaches of covenants which 
 took place before the 24th June, 1871 ; the lessors brought ejectment 
 on the 21st July in the same year, but the wi'it did not claim possession 
 as from an antecedent date. After the commencement of the action, 
 but before trial, the lessors distrained for rent due up to 24th June, 
 1871. Held, that the distress had not waived the breaches of covenant 
 prior to 24th June, 1871.
 
 306 CUSTOM OF THE COUNTRY. 
 
 CHAPTER X. 
 
 HUSBANDRY COVENANTS— CUSTOM OF THE COUNTRY. 
 
 The law will imply a promise on tenant's part to cultivate his farm 
 in a luisbandlike manner, and according to the custom of the country 
 in which it is situated, unless the express agreement is inconsistent with 
 the custom. When a custom of the country is proved to exist, it is to 
 be considered as applicable to all tenancies in whatever way created, 
 whether verbal or in writing, unless expressly or impliedly excluded by 
 the written terms themselves {Wilkins v. Wood). 
 
 The mere relation of landlord and tenant is a suflicient consideration 
 for the tenant's promise to manage a farm in a good and husbandlike 
 manner, and not to carry away any straw, dung, or compost, (Src, 
 {Poicley V. Wall^er). In assumpsit on a promise so to manage it, and 
 according to the custom of the country, it is suflBcient to allege the 
 breach in the words of the promise {Earl of Falmoidli v. Thomas). And 
 a count stating a contract by the defendant, to use the farm in a 
 husbandlike manner, is not supported by proof that he had agreed to 
 manage it in a husbandlike manner, to le kept constantly in grass 
 {Saunderson v. Griffiths). A breach of a covenant to cultivate ac- 
 cording to the custom of the country is sufficiently averred, by stating 
 that defendant did not so cultivate, without specifying instances [Martyn 
 adx. V. Clue). 
 
 Where a declaration stated that the defendants were tenants to the 
 plaintiff from March, 1835, to February, 1837, and ly reason thereof, it 
 was their duty as such tenants to cultivate the farm in a good sub- 
 stantial manner, according to the custom of the country, the pleas of 
 Xot guilty and that the defendants were not tenants, &c., modo et 
 forma, only put in issue a tenancy in fact, and therefore the defendants 
 could not object to the non-production of a lease, which was required 
 for the purpose of showing a tenancy inconsistent with the cultivation, 
 according to the custom of the country {Hatlifax v. Chamhers). On the 
 evidence it appeared that there had been a lease, which expired in 
 February, 183n, and that the defendants held over, and that the action 
 was brought for mismanagement between Februar}', 183G, and February,
 
 TORTS WHICH DIE WITH PEESON. 307 
 
 1837. And 2)er Curiam: "If the defendants intended to show that 
 under the terms of a lease they were not bound to manage this farm 
 according to the custom of the country, that should have been pleaded. 
 The declaration merely states that the defendants were tenants, and 
 that a ^'certain duty devolved upon them in that character ; and no 
 point is raised by either of the issues as to the lease, or the terms of 
 the former holding." (//;.) 
 
 A lord of the manor, though, he inaij hring a hill for an account of ore 
 dug, or timher cut, by defendant's testator, may not bring one for 
 ploughing up meadow or ancient pasture, or such torts as die with the 
 person {Bishop of Winchester v. Knight). It was laid down in Johnson 
 V. Goldswaine, that irremediable injury is the only ground for the 
 summary interposition of courts of equity, and that the ploughing 
 up of ancient meadow was irreparable waste ; but that carrying off the 
 straw and manure which were to have been spent upon the land, was 
 merely a breach of contract. If the breach of a covenant be assigned 
 thus, " that the defendant had not used a farm in a husbandlike mannerj 
 hut on the contrary has committed great waste, spoil, and destruction," 
 the plaintiff cannot give evidence of the defendant using the farm in 
 an unhusbandlike manner, if it do not amount to waste (Harris v. 
 Mantle). Evidence was offered at the trial to show that the defendant 
 had not managed his farm in a husbandlike manner, as he had not 
 sown any clover or turnips on a certain proportion of it, according to 
 the course of husbandry in Worcestershire. Heatlt J., who tried the 
 case, thought, as the lease was not expired, this ^\■as not spoil or des- 
 truction, and nonsuited the plaintiff, and the Court discharged a rule 
 for a new trial without argument. Butler J. said, on the former words 
 of the breach, the evidence would have been admissible ; yet as the 
 plaintiff had in the subsequent part of it narrowed it to waste, spoil, 
 and destruction, it was not competent to him to give evidence of any 
 other particulars, which did not come within the meaning of those 
 words. And per Parhe B. : " It is not waste at common law, either 
 wilful or permissive, to leave tJie land uncultivated. In order to oblige a 
 tenant to farm according to good husbandry, you must either have 
 some express contract, or some implied contract from the custom of the 
 country " {Ilutton v. Warren). A breach in an action by a landlord 
 against an outgoing tenant, that the tenant threatened to commit waste, 
 unless he were paid a certain sum by the incoming tenant, as compensa- 
 tion for ploughings, draggiugs, grass seeds sown, dung, &c., and that 
 the latter was thereby compelled to and did pay him that sum, in order 
 to prevent his committing such waste, is bad {Leach v. Thomas). It 
 was ruled at Nisi Prius by Lord Elknhorough C.J. that it is waste for 
 
 X 2
 
 308 INJUNCTION AGAINST BREAKING UP PASTURE, 
 
 an ouUioing tenant of (janlen g round to plough up stmwhorry heds in full 
 hearing, although when he entered he paid for them on a valuation to 
 the pei-son who occupied the premises before him, and although it may 
 have been usual for strawberry beds to be appraised and paid for, as 
 between outgoing and incoming tenants {WaflwreU v. Howells). 
 
 Lord Eldon C.B., granted an injunction to restrain the defendant (the 
 tenant of a farm) //w;j brealcing iqj meadow for the j^ufyose of huilding, 
 contrary to the covenants of his lease, which were not to convert any 
 meadow land, with all other usual covenants showing that it was a 
 tillage farm. A covenant to manage pasture in a husiandlike manner 
 is equivalent to one not to convert it into arable {Bniryy. Molins). It is 
 clearly established by several authorities (Co. Litt. 53 a, Dyer 37, Hob. 
 23-A) that j)loughing meadow land is waste ; and one of the reasons given 
 is, that it alters the evidence of title, a reason which, as Tindal C.J. 
 observed in Simmons v. Norton, " I am not disposed to treat lightly. 
 It is also esteemed waste on another account; viz., that in ancient 
 meadow, years, perhaps ages, must elapse before the sod can be restored 
 to the state in which it was before ploughing. The law, therefore, con- 
 siders the conversion of pasture into arable as primd facie injurious to 
 the landlord on these two grounds at least." It w\is uniformly held by 
 Sir W. Mac3Iahon IM.R. (Ire.) that in fee simple estates a continuance 
 in pasture for 20 years, during the life of the donor or testator, im- 
 presses on land the character of ancient pasture ; but that if the period 
 was less than 20 years, the case is open to evidence of intention, but 
 not otherwise. It is not waste to plough up land held under a lease, if 
 the land was not ancient meadow or pasture at the date of the lease 
 (Jlorris v. Morris). A tenant may not break up ancient meadow or 
 pasture, though the land is mossy and requires tillage, and there is no 
 covenant in the lease against doing so {Martin v. Cogan). AxiAper Sir W. 
 MacMahon ]\r.Pt. : " The usual form of the affidavit required to support 
 an application for such an injunction, is that the land is ancient pasture 
 or meadowy and has not been burned nor tilled for the last 20 years, 
 and it is for the defendant to show that it ought not to be considered 
 ancient pasture, by reason of its having been used in tillage previously 
 to the date of his lease." Lord Ma?isfield C.J. ruled in Birch v. 
 Stephenson, that sowing clover tvith the spring corn does not constitute 
 laying down land in fermanent pasture, but it must still be considered 
 in a state of tillage. And p;- Tindal C.J. : "Merely sowing common 
 grass-seed does not make land old meadow again" {Simmons v. Norton). 
 
 Kinlyside v. Thornton decided expressly that a lessor may sue for 
 waste in an action upon the case, although the lease contains a covenant 
 upon which the lessor might maintain an action for the same wrong.
 
 rJGHT OF REVERSIONER TO PREVENT WASTE. 309 
 
 And 2^cr Maule J. : " Kinhjside v. Thornton (which was expressly recog- 
 nized in Miislcett v. Hill) shows that if waste be committed, the lessor 
 may maintain an action on the case for it, and that it is no answer for 
 the lessee to say that covenant also may be maintained. That case shows 
 that the lessor may have either remedy. The authorities which are said 
 to have shaken that case seem to me to have nothing to do with the 
 matter. All they decide is, that where there is a contract under seal, 
 you cannot sue in respect of the same contract, as upon a contract not 
 under seal" {Marlcer v. Kenrick). An action of waste for not using 
 a farm in a tenant-like manner, is not within the meaning of 46 Geo. 
 III. c. 66— Isle of Wight Court of Requests Act— ( PF/Ztom v. Unj). 
 
 Where a declaration states a charge of volimtary waste, evidence of a per- 
 missive waste is not admissible {Martin v. Gilham). The reversioner or 
 remainderman may apply to Chancery to restrain the tenant in posses- 
 sion from w-aste, in all cases where it is punishable by law, and an in- 
 junction will be granted before the bill is filed. An injunction will be 
 granted on an affidavit of waste to be committed by a tenant for life 
 or years, or to inhibit meadow or other pasture not ploughed within 
 20 years being ploughed, but not against a lessee who agreed to pay 
 20s. an acre per annum increase of rent if he ploughed a meadow ; or 
 to inhibit ancient enclosures being thrown down (Com. Dig. Chan. 
 D 11). The Court of Chancery will anrrrd a ])erpetual i?ijimctian to 
 restrain waste hi/ ploughing, hwrning, hreahing, or sowing of Down lands, 
 the effect of whicli, though it might be a present advantage to the ap- 
 pellant for his short term of years, would be a total destruction of all 
 future benefit to arise from the Down, and for want of foldage for the 
 shepp, would greatly damage and impoverish the arable part of the farm 
 (4 Bro. Par. Cases, 377). An injunction has been granted where a 
 tenant ploughed up a bowling green (2 Brown's Chan. E.ep. 64), and 
 also to prevent the land l^eing sown with mustard-seed, or with any 
 other pernicious crop {Pratt v. Brett), among which flax may perhaps 
 be included (Savage v. Connor). 
 
 On a writ of waste for ploughing ancient meadow,, the defendant was 
 not allowed under the general issue, nul wast, to give evidence that the 
 ploughing was resorted to according to the custom of the country, for 
 the purpose of ameliorating the meadow, and it was held by the Court 
 of Queen's Bench, that if such matter were a defence at all, it must be 
 pleaded specially {Simmons v. Norton). And jjcr Curiam .• " It is only 
 where the waste happens by the hand of God, or the like (as if the sur- 
 face of the meadow had been destroyed by the eruption of a moss, or 
 enemies had landed and dug it up), that the general issue is the proper 
 plea. The general principle is clearly laid down in Barrett v. Barrett;
 
 310 PLOUGHING UP PABBUr WAEREN. 
 
 r.nd tliondi some exceptions are pointed ont, yet with respect to the 
 conversion of meadow into arable, no doubt is raised, Init it is extremely 
 donbtful whether such an injunction would now be granted either in the 
 case of mustard seed or flax. 
 
 It cannot Ic decided as a genei'al jjrojwsifion, without any exception, 
 that the conversion of ancioit meadow into arahle is to he treated as waste, 
 and hence the Court will not restrain an incumbent from ploughing up 
 meadow infected with moss and weeds for the purpose of laying it down 
 again in grass when properly cleaned {Duke of St. Athans v. Skijjwit//). 
 And qi'O're, whether a patron is in any cnse entitled to an injunction to 
 restrain the incumbent from ploughing up ancient meadows, as in that 
 case the course of husbandry cultivation must remain the same to all 
 time (//>.). In HosJfins v. Featherstone, where the Court had previously 
 interfered to stay the conversion of glebe meadow into pasture, the bill 
 was filed, not against the incumbent, but against the widow of an in- 
 cumbent who was doing the acts complained of during a vacancy. 
 Xeejlect to cidtivate the fjlele land in a husiandtiJce manner, is ?iot a dilapi- 
 dation for tchich an incum'bent can recover against the executors of a pre- 
 viovs incumlcnt, as no such contract to cultivate it can be implied 
 between him and his successor ; there must be something of demolition 
 to support an action for dilapidations {Bird v. Ralph). And pier Patte- 
 son J.: "The authorities show that such an action is maintainable, 
 where the buildings, hedges, and fences belonging to the benefice are 
 left in a state of decay, or where tliere has been a felling of timl.)cr, 
 otherwise than for repairs or fuel " (il\). 
 
 To hrecik up a ralhit warren for potato grounds, unless it be a warren 
 by charter or prescription, is not waste at common law, and the Court 
 will grant no injunction {Lurling v. Conn). Here the warren was 
 demised simply as land, l)ut the i^Iaster of the Rolls intimated that if a 
 lease was made of a rabbit warren as a rabbit warren, the tenant might 
 ])crhaps be considered as i>recluded from ploughing it up. An injunc- 
 tion was granted to resti'ain tenants from year to ycnr under notice to 
 quit, as in the case of a lessee for a longer term, from cutting and doing 
 damage to hedge-rows, and from removing the crops, manui-e, &c., ex- 
 cept according to the custom of the country {Onslow v. Fames), and sec 
 Ptdtoney v. Shelton, and Lathropp v. Marsh. 
 
 In Rayner v. Stone a demurrer to a hill hg a landlord for a specific 
 performance of covenants contained in a lease which had expired, to re- 
 pair hedges and mansion-house, to account foi- loppings, toppings, and 
 hedges which the defendant had cut on tlic premises, or to account 
 for the fodder or dung which he had removed, or to set up landmarks, 
 ptones and fences, was allowed ; common covenants in husbandry not
 
 PAROL AGREEMEKT FOR A LEASE. 311 
 
 being the subject of equitable jurisdiction, of which a si)ecific perform- 
 ance will be granted. Lord Chancellor Henley said, " How can a 
 master judge of repairs in husbandry ? What is a proper ditch or 
 fence in one place may not be so in another." Where a tenant has 
 committed breaches of covenant by waste, treating the land in an un- 
 husbandlike manner, A-c, and been guilty of various breaches of cove- 
 nant for which the lessor had a right of re-entry, he is not entitled to 
 a specific performance of an agreement for a lease {Hill v. Barclay). 
 And in Neshilt v. 3Ieyer specific performance was refused of an agree- 
 ment to grant a lease for a term expired before the hearing of the 
 cause, as the acts of waste, which were confined to the cutting down of 
 70 or 80 poles of the value of £3 in order to repair the fences, would 
 not entitle the plaintiff, iu an action on the covenants to be inserted in 
 the lease, to more than nominal damages. 
 
 Wiere iqmn a ]mrol ayreement for a lease (the land, the rent, and the 
 terms of years being certain) the tenant was let into imssession, and the 
 landlord received a sum of money from him for the stock on the farm, 
 Sir J. Stuart Y.C. decreed that the tenant was entitled to a specific 
 performance of the agreement {Pain v. Combes). But if under an 
 agreement for a lease the tenant files his bill for specific performance, 
 and yross acts of waste and yross breaches of covetiant arc jiroved ayainst 
 him, the Court will not grant a lease, the only effect of which would be 
 to compel the landlord immediately to sue the tenant for breach of the 
 covenants ; but where the alleged acts of waste and breaches of covenant 
 are explained or contradicted on the other side, the Court will not take 
 such doubtful questions into consideration, as a reason for refusing a 
 decree for specific performance {ib.). A Court of Eqiiity will ?iot 'inter- 
 fere yenerally to restrain an action of ejectment brouyht ayainst a lessee for 
 breaches of covenant in the lease, except for breaches in nonpayment of 
 rent {Nokes v. Gibbons). And where a lessee covenanted to make 
 certain drains, it is not an equitable ground of interference that he 
 employed persons to make the drains, but that they did not do the 
 work properly {ih.). It is laid down (Prec. Chan. 561) that where a 
 man on a promise of a lease to be made to him, lays out money on im- 
 provements, he shall oblige the lessor afterwards to execute the lease, 
 because it was executed on the part of the lessee ; besides, that the 
 lessor shall not take advantage of his own fraud, and run away with 
 the improvements made by another : if no such expense had been on 
 the lessee's part, a bare promise of the lease though accompanied with 
 possession, as where a lessee by parol agreed to take a lease for a term 
 of years certain, and continued in possession on the credit thereof, 
 there being no writing to make out this agreement, it is directly Avithin
 
 'Ml COVENANT NOT TO PLOUGH UP PASTUEE. 
 
 the Statute of Frauds, and will not be enforced. See also Tr///.s v. 
 Straillimi. And per Lord Macdonahl C.B. : "The conduct of a landlord 
 in permitting and encouraging improvements under sanction of a lease, 
 "which he knew to be bad, may perhaps in equity give the lessee a claim 
 against him for a new lease, though it docs not at law amount to a 
 confirmation or renewal of the old " {Hardcastle v. Shaffo). 
 
 A tenant wider agreement to manage and quit the premises, agreeahlg to 
 the manner in which the same had been managed and quitted by the former 
 tenants, is not bound by the terms npon which they held, without 
 notice of the existence and purport of the lease, and if he have no such 
 notice he is only bound by the mode in which the landlord shall have 
 permitted the former tenants to manage the farm, though they may 
 have been legally bound by stricter agreements {Liehenrood v. Vines). 
 Lord EJ(1o7i C. said : " With regard to the question what is the custom of 
 the country, that is one which has no place where there is a written 
 agiTcment'" {ib.). 
 
 In a lease for years of land, where the lessee covenants not to 'plough 
 pasture land, and if hf. does, then to pay after the rate of 20s. per annum 
 for every acre ploughed, no injunction will be granted against the 
 tenant's ploughing, for the parties themselves have agreed to the 
 damage, and set a price for ploughing (Woodward y. Ogles) ; nor will 
 the Court relieve the lessee against the penalty if he ploughs (ib.) ; and 
 so in Forbes v. Carneg. Where a farm was let subject to certain yearly 
 payments, independent of the rent, in case the tenant should not crop, 
 manure, and manage it, in manner, specified and covenanted in the 
 lease ; and also in case the tenant during the hist three years of the 
 term should sow more than 70 acres of clover in one year, the additional 
 rent of £10 an acre, for every acre above 70 acres for the residue of the 
 term — it was held that the additional rents were in the nature of 
 liquidated damages, and not of penalties ; and therefore on a bill filed 
 by the landlord for a discovery of breaches of the covenants in aid of 
 an action at law, a plea that the discovery might subject the tenant to 
 penalties was overruled {Jones v. (Ireen). And per Alexander C.B : 
 " Since the case of Rolf e v. Paterson, it has always been understood in 
 all cases between the landlord and tenant, whether the term used has 
 been * penalty,' or ' liquidated damages,' or ' additional rent,' or any 
 other similar expression, that it should not be considered as a penalty 
 in order to protect the defendant from answering, but as stipulated 
 damages or additional rent, and as entitling the plaintilf to a discovery 
 of the transaction." 
 
 In Boirers v. N'i.ron, the reddendum of the lease, on whirh covenant was 
 brought, was "yielding and paying therefore " to the lessor "the yearly
 
 RESERVATION OF PENALTIES. 313 
 
 rent or sum of £100," " to be paid by two equal half-yearly days of 
 payment in the year," " and also yielding andpaijimj unto " the lessor on 
 the said days, "■ a farilter i/oarhj rent or sum according to the rate of " 
 £20 an acre, for converting grazing land into tillage without licence, 
 and also, *' yiplding and iKUjing over and above the said rent hereinbefore 
 reserved, according to the rate of £20 per acre," " for sowing any rape, 
 woad, or potatoes, or above half an acre at one time of flax or hemp, or 
 from which he or they shall have, get, or take more than three crops of 
 corn or grain, in any one course of tillage, or from which shall be taken 
 a second or other crop of wheat, without making a clean summer 
 fallow," &c. Four breaches were assigned, and the defendants con- 
 tended that it was the intention of the parties, that on the specified 
 acts or defaults taking place, a penal sum should be paid, not an 
 additional rent continuing to the end of the term. The Court, how- 
 ever, held that the intention of the parties undoubtedly was that each 
 of these sums should become i)a\jable continuaHij as additional rent, if the 
 act or default upon which they arose was once committed, and that the 
 accidental omission of the term " further rent '' in one of the clauses, 
 while " yielding and paying " ran throughout, left enough to show the 
 necessary construction. And per Lord Ellenborough, C.J. : " In the 
 case of a covenant in a lease not to plough ancient meadow or the like, 
 followed by a proviso that in case the same should be ploughed by the 
 tenant thereof he should pay a certain increased rent for the same, it 
 would certainly be in the option of the lessor to declare as for a breach 
 of covenant not to plough, or he may declare at once for a breach of 
 covenant in not paying the stipulated satisfaction for such ploughing " 
 {Clarke v. Gray). And see Birch \. Stej)]ienson ; IIouwll v. Richards; 
 and Denton v. Riclnnvnd. 
 
 In Farrant v. Otmius, which was a case of covenant by lessor against 
 lessee one/ tease reserriny an increased yearly rent of £50 for every acre of 
 certain la/ids converted into tillage, Abbott C.J. said, " If the argument 
 that the Court ought not to disturb such a verdict, bacause it is con- 
 sistent with justice, were to prevail, it would encourage jurors to 
 '^.ommit a breach of duty, by finding verdicts contrary to law, and 
 would enable them to set aside the contracts of mankind. There cer- 
 tainly is nothing unreasonable in a landlord stipulating that particular 
 lands shall not be converted into tillage at all, and that in case that be 
 done a large sum shall be paid by way of stipulated damages. In this 
 case there is an express contract for stipulated damages, and the jury 
 have given a verdict for arbitrary damages." The increased rent to 
 which the plaintiff was entitled, for the land converted into tillao-e, 
 was £1,550 ; whereas the jury, contrary to the direction of Richards
 
 314 PENALTY FOR UNDER-LETTING. 
 
 C.B., vrho told llicm to find for that sum and half a year's rent for the 
 land not laid down for grass, returned their verdict for £1,100; and 
 when I'cquested to reconsider it, and specify how much was for repairs, 
 (according to the covenants of the lease), and how much for the land, 
 they stated tliat they found £500 for the repairs, and £600 for the in- 
 jury done to the land. The rule for a new trial was made absolute, on 
 the ground tliat they were bound to give the increased rent. At the 
 following assizes, Ahlott C.J. refused to receive evidence that the actual 
 damage to the land was less than the sum claimed as increased rent; 
 and the plaintiff" recovered the increased rent. 
 
 The addiiionaJ rcntv}?i.?,d.d.\mQd.m GreensladeY. T(q)s(oifimdcv peculiar 
 circumstances. There the lease contained a stipulation that for every 
 acre, and so in proportion for a less quantity of the land, which the 
 lessee should suffer to be occiq)ie(l by any other person, without the con- 
 sent of the landlord, an additional rent should be paid. The tenant 
 undertook to use, occupy, dross, and manure the land according to the 
 custom of the country ; and /fithouf the consent of the tandlord, suffered 
 other persons to use stnatt portions of the tan d for six months at a time, for 
 the purpose of raising a potato crop. It was proved to be the custom of 
 Somersetshire for the farmers to pursue tliat course, and after the potatoes 
 were taken out, and the land delivered up in October, wheat was sown. 
 The Court considered Lord Ettenljoroucjh's decision in Doe dem, Pitt v. 
 Laming to be unsatisfactory, and held that the landlord was held entitled 
 to the additional rent, this being an occupation of land "/>// any other 
 person.'' And jwr Parle B, : " 8uch an occupation as this for 12 
 months would have conferred a settlement, and the party in occupa- 
 tion would be the only person entitled to maintain trespass for an in- 
 jury done to the possession." 
 
 A covenant in a farming lease not to sow any of the lands demised 
 " with wheat more than once in four years, nor with more fJian two crops 
 of any kind of grain whatsoever, during the same period of four years," 
 was held to apply to any four years of the term, however taken, and not 
 to each successive four years from the commencement (Fleeming v. Snook). 
 And in Shrewsbury (Earl of) v. Goidd, where a lessee covenanted that he 
 wonld '■^ at all times and seasons of burniny time'" supply the lessor and 
 his Staffordshire tenants wdtli lime at a stiimlated price for the im- 
 provement of their lands and repair of their houses ; it was held that 
 this was an implied covenant also that he would l)U]'n lime at all such 
 seasons, and that it was not a good defence to plead that there was 
 no lime burned on the premises, out of which the lessor could be 
 supplied. 
 
 In Brown v. Crump, a declaration which stated that in consideration
 
 OVERCROPPING NOT WASTE. 315 
 
 that the defendant Iiad become tenant to the plaintiff of a farm, the 
 former imdertooh to make not less ilian thirty acres of fallow, and to spend 
 £60 ivorth of manure annually, and to Iceep the Inildings in repair, being 
 allowed timber m the rough, was held bad on general demurrer, those 
 obligations not arising out of the bare relation of landlord and tenant. 
 Gibbs C.J. said, " The doctrine which I have often heard Mr. Justice 
 Bidler lay down is, that every tenant, where there is no particular 
 agreement, dispensing with that engagement, is bound to cultivate his 
 farm in a husbandlike manner, and to consume the produce on it ; this 
 is an engagement which arises out of the letting, and which the tenant 
 cannot dispense with, unless by special agreement ; but it does not 
 follow that a tenant shall be bound to have a certain portion of land 
 every year in a certain tillage," 
 
 ■ In an action against a tenant, on promises that he ivoidd occupy the 
 farm in a good and husbandlilcc mcmnrr, according to the custom of the 
 country, the allegation that a tenant has treated his estate contrary to 
 good husbandry and the custom of the country (Cheshire) is proved by 
 showing that he had treated it contrary to the prevalent course of good 
 husbandry in his neighbourhood, as by tilling half of his farm at once, 
 when no other farmer tilled more than a third, and sowing nearly half 
 of that with wheat {Legh v. Hewitt). But evidence of a breach of 
 covenant by mismanagement in overcropping or by deviating from the 
 usual rotation of crops, is inadmissible in ejectment by landlord against 
 tenant, where particulars of breaches delivered are for selling hay and 
 straw off the land, removing manure, and non-cultivation {Doe dem. 
 Winnall v. Broad). And ^;er Curiam : " Overcropping does not come 
 within the ordinary meaning of the term 'non-cultivation,' which 
 means leaving the land to go to waste " (/7^.). 
 
 In Angerstcin v. Handson the declaration stated that tiie defendant 
 vndcrtoolz to cultivate and manage the farm and lands according to the 
 course of good husbandry and the custom of the cou)iiry where the farm 
 was sUuafe, and then averred that according to the course of good 
 husbandry and the custom of the country, tlie defendant ought to have 
 had about one-half only of the arable land in corn, one-fourth in seeds, 
 and the remaining fourth part in turnips or fallow. That was an aver- 
 ment of the custom ; and the breach alleged was that the defendant 
 had more than one-half of the arable lands in corn, had not one-fourth 
 in seeds, and less than one-fourth in fallow or turnips. The defendant 
 traversed the custom in the same terms as it was alleged in the declara- 
 tion, and the jury found that the custom was not as the plaintiff 
 alleged, but that there was a different custom ; and that the farm had 
 been cultivated contrary to the course of good husbandry in the neigh-
 
 ol(j ALLOWANCE FOR LASTING IMPllOVEMENTS. 
 
 bourhood. The Court held tliat the plnintifV had tied liimself np to 
 tlie precise custom as alleged in the declaration, and having ftiiled to 
 prove it was not entitled to recover. 
 
 AVhere the declaration, as in Hartley v. Burlcdl, charged tlie defendant, 
 as tenant to the plaintiff, with carrtjinij atrai/ in an vnfcnantahU manner, 
 and contrary to the custom of the country, several loads of Itay off the farm 
 without hrinyiny back and spendiny on the 2)remises an equal number of 
 loads of duny, the plea that there was not any such custom of the 
 country (which the plaintiff contended was bad as amounting to the 
 general issue) was held to be good. There was a covenant in Bichards 
 V. JJIack to spend the green crops on tlie lands, or to bring back for every 
 such ton of green crop sold off, a ton of good stable manure within 
 three mouths. The plaintiflF set out the first part only, and assigned 
 for breach that the defendant carried away fourteen acres of turnips 
 without converting the same into manure and spreading it on the 
 demised premises. It was objected that there was a material variance 
 between the covenant in the declaration and that contained in the 
 lease, and the Court considered that the judge was right in refusing to 
 amend, and that the covenant being an alternative one, the plaintiff 
 should have negatived the bringing back, within the time limited, an 
 equivalent in manure. 
 
 A lessee under a lease void for his own fraud, is not en I if led to alluwances 
 for tastiny improrements {Pierre v. Wehh). But where, as in Atlorney- 
 General v. Preiyman, an order was made in a suit that tlie master of a 
 charity should be at liberty to let a farm to the old tenant for twenty- 
 one years at a rent of £800 a-year, and the lease had been approved of ; 
 but before it had been executed by the master, an offer was made of an 
 increased rent of £220, the tenant in tlie meanwhile having laid out 
 £2,925 12s. \d. in artificial manures and improvements on the faith of 
 such future lease ; the Master of the liolls held that the offer of such 
 an increase of rent as £220 could not be refused (supported as it was 
 by the valuation of four land-agents and surveyors), but that the old 
 tenant was entitled to be saved harmless, and have an allowance for his 
 outlay, if he did not make fresh proposals for a lease on the same terms. 
 In Whitalier v. Barler a bargain was made between the defendant and 
 the jilaintiff that the latter should take the farm for fourteen years, and 
 pay £'J5 at coming in for tillages, and receive compensation at qidttiny 
 acrordiny to a fresh valuation, from an inc.ominy tenant, for the tillayes 
 and impn'ovemenls he miyht leave on the farm. On account of some dis- 
 pute, tlie tenant, without making any new bargain as to the tillages 
 and iniitrovements, said he would quit at the end of the year, and the 
 landlord said he might, and the Court considered that as such quitting
 
 tAYtNG FOR TILLAGES. 31 7 
 
 Was not a quitting under the terms of the tenancy, but in reality a running 
 away, the landlord was entitled to possession, without making him any 
 compensation for the tillages and improvements he left on the farm. 
 
 In Cleghorn \. Durrant, the tenant of a farm contemjilaflng talcing a 
 lease and pending negotiations for the same, being desirous of carrying out 
 certain thatching and draining improvements, and anxious as to repayment 
 of them, wrote thus to her landlord — "I should feel obliged if you 
 would send us a rough draft of the agreement at your earliest couveni- 
 ance, as I do not feel comfortable to proceed Avith the necessary im- 
 provements of thatching the barn and draining the land, &c., without 
 some little assurance from you that we are acting safely." The land- 
 lord replied as follows — " I will send you a copy of the lease next week, 
 and trust you will make yourself comfortable as to the thatching of the 
 barn and the draining, &c, ; I will pay for the thatching and draining 
 if we do not come to terms ; but as the covenants will not be unusual, I 
 trust there will be no necessity for that." The tenant, who was under 
 notice from the landlord to quit at tlie end of the half-year, declined 
 continuing tenant of the farm under the terms of the new lease, an 
 event for which no provision had been made in the correspondence, and 
 the landlord, on the determination of the tenancy, brought his action 
 for the half-year's rent. The tenant pleaded by way of set-off, the 
 money she had paid for thatching and draining, and paid into Court 
 the balance of the landlord's claim ; and it was held by the Court of 
 Common Pleas, on the interpretation of the correspondence, that the 
 defendant was entitled to set-off' against plaintiff's claim for rent, the 
 money she had expended on the said improvements. 
 
 The question of the custom of the countrg as to paging for tillages 
 between tlie out-going and in-coming tenant, was very much considered by 
 the Court of Exchequer in Faviell v. Gaslcoin, which was an action in 
 assumpsit to recover the amount of the usual valuation paid by an in- 
 coming tenant for fallows, half fallows, dressings, &c. The defendant's 
 testator being in possession of an estate, of part of which he was the 
 owner, and another part Crown lands, on a lease which was to expire 
 on the 10th of October, 1849, contracted with the plaintiff' to sell to 
 him his part of the estate, and demised to him the Crown lands for one 
 year from the 29th of September, 1848. The plaintiff agreed to keep 
 all the Crown lease covenants, and the testator agreed that in case he 
 could get a further lease from the Crown for fourteen years, he would 
 grant to the plaintiff a lease for thirteen years, subject to the same 
 covenants. On February 2nd, 1849, the plaintiff" signed a memorandum 
 agreeing to take (with others) the Crown lands, " subject to the same 
 rents, covenants, and obligations in all respects," as were contained and
 
 318 CUSTOM OF THE COUNTRY. 
 
 provided for iu the leases, by which the testator held or shuuld hold the 
 same. The plaintiff, on taking possession in the course of that month, 
 paid to the defendant s testator, according to the custom of the country, 
 the amount of the valuation, £2,233 196'., for fallows, dressings, &c., as 
 well of the other lands as of the Crown lands, which latter only 
 amounted to £240. By the terms of the Crown lease, the custom of 
 the country as between landlord and out-going tenant was excluded. 
 At the desire of tlie plaintiff the Crown lease was not renewed, and the 
 plaintiff gave up possession of the Crown lands on the lOtli of October, 
 1849, when he claimed as out-going tenant to be paid for fallows and 
 dressings, &c., according to the custom of the country. The defendant 
 objected first that the custom of the country was excluded by the terms 
 of the contract, and secondly that, if not, the custom did not include a 
 case where the term was determined by the expiration of the landlord's 
 interest. 
 
 It was also objected that there was no obligation on a landlord to 
 pay according to the custom of the country. Jervis C.J. left it to the jury 
 to say whether the custom for a landlord to pay the out-going tenant 
 was proved ; and the jury having found in the affirmative, his Lordship 
 directed a verdict for the plaintiff, reserving leave for the defendants to 
 move to enter a verdict for them, if the Court should be of opinion that 
 on the construction of the documents the custom of the country was 
 excluded by the agreement between the parties. The rule was discharged, 
 and the Court held, first, that the custom of the country was not ex- 
 cluded by the agreement ; and that where such a custom exists there is 
 an implied contract on the part of the landlord, that if there be no in- 
 coming tenant, he Avill pay the out-going tenant according to the 
 custom ; but scniihle that such a custom does not apply to cases where 
 the term is put an end to by the determination of the landlord's 
 interest. 
 
 Parlce B. said : "The plaintiff was to indemnify the testator as to all 
 covenants which he had entered into with the Crown. The latter re- 
 ceived the amount of valuation from the plaintiff as in-coming tenant, 
 and is bound to pay him. The agreement does not exclude the custom 
 of the country. It merely contemplates a lease which would expire on 
 the 29th of September, 1849, so that the time of quitting is not the 
 same as under the Crown lease. The obligation created by taking this 
 particular property literally turns out to be nothing more than a demise 
 for a year, and the custom of the country ap^tlies to that." And ^;<'r 
 Alderson B. : "The plaintiff agrees to take the whole of the lands, and 
 he stipulates that he will save harmless his landlord from all covenants 
 entered into between the latter and the Crown. But there is nothing
 
 REMEDY AGAINST ASSIGNEES OF REVERSION. 319 
 
 in such an agreement inconsistent with the custom of the country." 
 Martin B. added : "I am of the same opinion. With respect to the 
 second point, the meaning of such a contract is this, that at the time 
 the tenancy commences the landlord and tenant enter into a special 
 contract, the one to receive and the other to pay the value of the tillages, 
 to be repaid by the landlord at the expiration of the term. That is as 
 much a part of the terms of the tenancy as if it were contained in the 
 lease itself. It is true that in ninety-nine cases of a hundred a new 
 tenant comes in and takes the tillages for his own profit, and so 
 becomes a debtor to the out-going tenant ; but still the landlord is 
 liable upon his special contract ; and the in-coming tenant is liable in 
 videhifaius assumpsit by reason of his taking the benefit of what was 
 left. Then as to the other point, the truth is the verdict is conclusive. 
 The agreement does not exclude the custom of the country. What 
 Mr. Clode's (the testator's) intentions were is not material : it may be 
 that he never would have entered into this agreement if he had known 
 its effect ; but the jury have found that the custom of the country 
 existed." 
 
 According to Womersleij v. Dally, asslfjnees of fJie reversion may Ve 
 sued by an out-yoiny tenant, on a contract or custom of tlie country, by 
 winch he is entitled to receive, on the termination of his tenancy by 
 notice fi'om the landlord, reasonable allowance for the value of labour 
 bestowed on the land, and the benefit of which he loses by such termi- 
 nation of his tenancy, although he has paid all the rent to the original 
 landlord, and received notice from him, the assignees having renewed 
 the notice after the conveyance to them, and possession having been 
 given to them. And a stipulation in a contract of tenancy, that the 
 tenant shall keep a certain proportion of the land demised for grass, and 
 pay so much per acre for any deficiency below such proportion, is ex- 
 tinguished by severance of the reversion ; and tenants in common, 
 assignees of the reversion on a lease, may join in suing, and be jointly 
 sued on covenants thereon (/'&.). 
 
 The rule of law as to imjjortiny into the terms of the tenancy "the custom 
 of the country,'" does not admit of evidence of the usaye of a particular 
 estate, or the proiJerty of a "particular individucd, however extensive it 
 may be, it not being shown that tlie tenant was aware of it (Womersley 
 T. Bally). The Courts have always inclined favourably to the introduc- 
 tion of those regulations in the mode of cultivation which custom and 
 usage have established in each district to be the most beneficial to all 
 parties. Hence a custom that tenants, whether by parol or by deed, 
 shall have the away-yoiny crop after the expiration of their term, was up- 
 held in Wiylesworth v. Dallimn, which was affirmed on a writ of error.
 
 3^0 RIGHT OF TENANT TO AWAY-GOlNG CROP. 
 
 This was an action of trespass for mowing, carrying away, and convert' 
 ing to the defendant's own use, the corn of the plaintiff on Hibaldstow 
 Leys, in the connty of Lincoln. Dallison pleaded lihcnim tenemenhim, 
 and the other defendant justified as his servant. To this the plaintiff 
 replied that there was a laudable custom within the parish of Hibald- 
 stow, that every tenant and farmer of lands within it, whose term expired 
 on the 1st of May in any year, had a right to take his (uvaij-goi/uj 
 crop ; and the custom was found in the words of the replication. A 
 motion was made to arrest judgment, on the ground that such a custom 
 might be good in respect to parol leases, but could have no legal exist- 
 ence in the cases of leases by deed, but the Court of King's Bench dis- 
 charged the rule. Lord Mansfield C.J. said, '' We have thought of this 
 case, and are all of oi)inion 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 that their interest would expire before they could 
 reap. But the custom of a particular place may rectify what otherwise 
 would be imprudence and folly. The lease being by deed does not 
 vary the case. The custom does not alter or contradict the agreement 
 in the lease ; it only superadds a right wiiich is consequential to the 
 taking, as a heriot may be due by custom, althougli not mentioned in 
 the grant or lease." 
 
 The question subsequently came under the consideration of the Court 
 of King's Bench, in the case of Senior v. ArmHage, where a custom for 
 the tenant of a farm in a particular district to proi'ide work and tallow, 
 iillaye, soicinej, and all materials for cultiration in his awaij-going year 
 ami foi' the landlord to make him a reasonaliU compensation for the same, 
 was held to operate notwithstanding the farm is held under a written 
 agreement, unless it can be collected expressly or impliedly from 
 Bucli agreement that the parties did not mean to be governed by the 
 custom. Park B. observed, in Hutton v. Warren, that fi'om his perusal 
 of Mr. Justice Bag leg's manuscript notes of the case, Mr. Holt had 
 stated it too strongly when he said that the Court held the custom to 
 be operative, unless the agreement in express terms " excluded it," and 
 that their decision was to the effect 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 con- 
 tract ; and that not only all common law obligations, but those imposed 
 by custom, were in full force where the contract did not varg litem." 
 The custom in Senior v. Armitage prevailed only in the neighbourhood
 
 RIGHTS OF OUT-GOING TENANT. 321 
 
 of the plaintiff's estates ; and there was no doubt about its existence, as 
 the defendant had, on the evidence, paid the amount of a former valua- 
 tion under it to the tenant of this very farm. 
 
 When the lencDicij of a farm expires, the tencmt must give iip the pios ses- 
 sion of the ivhote of it to the landlord, crops, and everything else, unless 
 there be a custom of the country for the tenant to hold over any part, 
 or to take any of the crops ; and the proof of the custom lies on the 
 tenant— ?;(9r Parhe B. {Caldecott v. Smythies). But it was held by the 
 Court of Exchequer in Griffiths v. Puleston, that where it appeared that 
 by the custom of the country as between outgoing and incoming farm 
 tenants, the former was entitled to a tvay-going share of the croi) of wheat 
 so/rn hy him in the last year of his tenancy, and that he cut the whole of 
 such crop, and kept the fences of the field in repair till the whole crop 
 was cut and carried awaj^, he had under such circumstances the posses- 
 sion, in law, of the field until the crop was carried away ; and that 
 therefore the vendee of his share of the crop had a good defence, under 
 not possessed, to an action by the new tenant for breaking and entering 
 the close in which the crop grew, for the purpose of carrying it away. 
 ParTce B. said, " The outgoing tenant 7'emains in piossession witil all is 
 done ivhich he has a right to do in respect of the crop, not merely until the 
 cutting. The case of Bevan v. Delahay is a strong authority to show 
 that his interest amounts to a possession, and not merely to an easement. 
 In that case there was a custom for the tenant to leave his way-yoiny crops 
 in tlie hams a?id other buildings of the farm for a certain time after his 
 lease had expired and he had quitted the premises ; and it was held 
 that the landlord might distrain the corn so left after the expiration of 
 six months from the determination of the term (notwithstanding 8 Anne, 
 c. 14, ss. G and 7). The obligation on the outgoing tenant to repair the 
 fences is strongly confirmatory of this view of the case." 
 
 It was held by the Court of Exchequer that trover lies at the suit of a 
 landlord for com cut and carried away hy an outgoing tenant after the 
 expiration of his term, though sown by him before that time, under the 
 notion of being entitled to an away-going crop (Davies v. Connop). 
 Here the plaintiif, at the expiration of the defendant's term in Candle- 
 mas, 1813, had let the same lands to another by parol, reserving the 
 land on which the wheat was sown, and on which, therefore, the new 
 tenant did not enter. On the 25th of August, 1813, the plaintiff sent 
 his reapers to cut it ; but the defendant, who had sown a third part of 
 the arable land with wheat, conceiving, as he said, that he was entitled 
 to a way-going crop, came and turned them out, and then cut and carried 
 away the whole. The court decided that the plaintiff had such a pos- 
 session as enabled him to maintain trover, principally on the authority 
 
 Y
 
 322 TAKING AWAY ODD MARK. 
 
 of Taunton v. Costar, where it was held that a tenant holding over after 
 the expiration of his term cannot distrain the landlord's cattle, which 
 were put on the premises by way of taking possession. " Taking this," 
 said Thomson C.B,, " to be a crop growing npon the land, whether cut 
 by the defendant or a stranger not being in possession, the moment it 
 was severed it became the property of the landlord." 
 
 The Court of King's Bench held, in Boraston v. Gi'een, that the in- 
 coming tenant had not such a possession as enahlcd hun to maintain trover 
 against the outgoing tenant, who had committed a breach of the custom 
 of the country in not leaving onc-lhird of the ivaij-going wheat crop sown 
 vpon a ctorer brush. 
 
 Where, by a clause in a lease, it was agreed that in case the tenant 
 slioutd dill// olmrre and perform the several covenants and agreements^ &c. 
 (one being for the ])ayment of rent), and should peaceably quit, &c., on 
 notice, &c., he should be entitled to a way-going crop, which was to be 
 left for the landlord or his incoming tenant at a valuation, it was held 
 by the Court of Exchequer that this clause did not give the tenant the 
 right of possession as against the landlord after the determination of 
 the tenancy, but that the tenant at most could only go on the land for 
 the purposes of a way-going crop, and could not exclude the landlord 
 {StrichJand v. Maxwell). By the custom of Herefordshire, an oflfgoing 
 tenant is entitled to crop one-third of the arable land of the farm with 
 wheat, which is called his odd marJc, and to cut and carry it away after 
 the tenancy has expired {Griffiths v. Tombs). And per FarJce B., "A 
 parol permission by the landlord to the outgoing tenant to sow more 
 than his strict odd mark will be good as against the landlord himself, 
 and therefore as against the incoming tenant." If a lease containing a 
 covenant that the lessee, " at the expiration or other sooner determina- 
 tion of the term," shall take the offgoing crop, is determined by the order 
 of the Lord Chancellor in Bcrnh-vptcy, under the 49 Geo. III. c. 121, 
 s. 19, the assignees are entitled to the offgoing crop {In re Dark). 
 And if a lease is determinable upon notice at the will of the lessor or 
 lessee, and the lessee covenants to leave, at quitting, the hay, straw, 
 &c., on the premises, the banlcniptcg of the lessee and the election of his 
 assignees not to talce to the lease have the same effect with reference to 
 the covenant as though the lessee had quitted upon notice {Ex parte 
 Whlttington). 
 
 Where a tenant held from Lady-day in a county in which the custom 
 of waygoing crops prevailed on the regular expiration of a Lady-day 
 tenancy, but Uie tenancy was determined on June 1st, by an award made 
 on reference of a dispide between landlord and tenant, it was held that the 
 award (which did not of itself change the property) was admissible in
 
 CUSTOM OP COUNTRY EXCLUDED BY LEASE. 323 
 
 evidence on the part of the landlord, on an issue between the landlord 
 and an execution creditor of the tenant, whether the crops 6n the land 
 at a certain time were the property of the party so found to have been 
 tenant, but that the custom had no operation in the case of a tenancy 
 so determined {TJiorpe v. Eyre). 
 
 In Fetch v. Taiin, where ihe tenant of a farm, hcing indehted to his 
 landlord, assigned to him hy deed, among other tilings, "all the tenant- 
 right and interest yet to come and unexpired of him the said S. Fetch in 
 and to the said farm and premises, it was considered that the future crops 
 must fall within the meaning of the words " tenant-rigid jet to come and 
 unexpired." And jjfr Alder son B. : " It is impossible to give effect to 
 the whole deed without holding that the 'tenant right' includes the 
 way-going crop. As to the question whether it may pass by such deed, 
 Grantham v. Hcmtey (where it was held that a party who has the 
 interest in the laud ' may grant all fruits that may arise upon it after, 
 and the property shall pass as soon as the fruits are extant') is 
 decisive." 
 
 The question as to ivlietlicr the terms of a lease exclude the custom of the 
 country, where the allowance claimed is not mentioned among others in such 
 lease, was much considered in Wehh v. Plummer. Here there was a lease 
 of a Southdown farm, with a coveuant to spend all the produce on the 
 premises, and to fold a flock of sheep, under a pcualty of £3 each time 
 they were folded off the premises, or any other than 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 f;irm pointed out by the lessoi', the lessor paying 
 for the fallowing such land and carrying out the dung, but nothing for 
 the dung itself, and paying for grass on the ground and thrashing the 
 corn. The claim was for an allowance for foldage, wliich the outgoing 
 tenant was entitled, by the custom of the country, to receive from the 
 incoming tenant ; but the Court of King's Bench held that, as there was 
 an express provision for some payment on quitting for the things cove- 
 nanted to be done, and an omission of foldage, the customary obligation 
 to pay for the latter was excluded. 
 
 Bayley J. thus laid down the rule applicable to such cases : " Where 
 there is a ivritten agreement hetween the parties, it is naturally to he expected 
 thatittvill contain all the terms of their bargain ; hut if it is entirely silent 
 as to the terms of quitting, it may let in the custom of the country as to that 
 particular. If, however, it specifies any of these terms, we must then go 
 by the lease alone. The custom of the country applies to those cases 
 only where the specific terms are unknown ; and it is founded upon this 
 principle, that justice requires that a party should quit upon the same 
 terms as he entered. If, therefore, the party when he entered upon the 
 
 Y 2
 
 324 CUSTOM TO LEAVE MANURE. 
 
 farm paid for a way-going crop, or for foldage, manure, fallowing, or till- 
 age, then if the lease be wholly silent as to the terms upon which he is 
 to quit, the custom may be introduced, and he may be entitled- to receive 
 for a way-going crop, foldage, &c. Upon this ground Senior v. Armitage 
 was determined ; for the lease there was wholly silent as to the terms of 
 quitting, and the claim there was different from the present, being a claim 
 for labour done by the outgoing tenant, from which he could not him- 
 self derive any benefit. Here, too, there is a specific contract to fold the 
 flock upon the premises under a penalty. My judgment, however, is 
 founded particularly on the last stipulation in the lease, by which the 
 tenant is prohibited from carrying off the manure, and by which the in- 
 coming tenant is directed to make certain payments to him ; and if a 
 lease speaks distinctly of the allowances to be made on quitting, it seems 
 to me to exclude all others which are not named." And j^i^-r Holroijd J., 
 " The covenant in the lease that the tenant will fold his flock which he 
 Bhall keep, &c., is binding on him to keep a flock and fold it on the 
 usual parts of the demised premises." Best J, added that, " In Wigejles- 
 u'orth V. Ballkon there were no sufficient circumstances to exclude the 
 custom. Here the parties have made some stipulation as to the terms 
 of quitting ; and if they had intended that this or any other pay- 
 ment should be also made, they would have introduced them into the 
 lease." 
 
 Parlte B. also observed on the latter point, in Hutton v. Warren, " No 
 doubt could exist, in Well v. Phnnmrr, but that the language of the 
 lease was equivalent to a stipulation that the lessor should pay for the 
 things mentioned, and no more.'' In Rolerts v. Barker the principal 
 question teas ivlietlier the words in the lease exp'essty hinding the tenant 
 to teave the manure in the fold, to be expended on the land by the de- 
 fendant (the landlord) or his subsequent tenant, without making any 
 mention of payment for it, excluded the custom of the country for an out- 
 going tenant to leave and he paid for such manure ; and the Court held 
 that they did exclude it, and refused to engraft the custom to pay for 
 the manure upon the engagement to leave it for the use of the succeed- 
 ing tenant. 
 
 All these cases were reviewed by tlie Court of Exchequer in Hutton v, 
 Warren, where, by the custom of Lincolnshire, a tenant was hound to 
 cultivate the farm according to a certain course of hushandry, and was en- 
 titled on quitting to a fair allov:ance from tJie landlord or incoming tenant 
 for seeds and tahour bestowed on the arable land during the last year of 
 the tenancy, and was obliged to leave the manure on the land if the 
 landlr.rd chose to purchase it. By the terms of the lease (in this in- 
 stance oiiginal lease, Avhich had long since run out, between the fathers
 
 NO STIPULATIONS IN LEASE TO THE EXCLUSION OF CUSTOM. 325 
 
 of the plaintiff and defendant, of tlie glebe land tithes), the tenant was 
 bound to speud three -fourths of the hay and straw arising from the 
 glebe lands, iu the shape of manure upon them, and to leave the 
 residue of such manure for his successor or the landlord, on being paid 
 a reasonable price for it. The defendant contended that the effect of 
 the latter stipulation was to exclude the custom of the country as to the 
 allowances for seed and labour on quitting, as the plaintiff must be con- 
 sidered to hold under the terms of the original lease, in which no men- 
 tion was made of them. The plaintiff had sown the arable land for which 
 the compensation was claimed after his notice to quit, in consequence of 
 the defendant's insisting that he was bound to keep the farm in due course. 
 It was decided that, in the absence of evidence to the contrary, the plain- 
 tiff held under the defendant on the same terms as he had held by lease 
 originally under his father, so far as those terms were applicable to a 
 tenancy from year to year ; and as the custom of the country as to culti- 
 vation and the terms of quitting with respect to allowances for seed and 
 labour were clearly applicable to a tenancy from year to year, and as the 
 custom was by implication imported into the lease, the plaintiff and de- 
 fendant were bound by it after the lease expired. 
 
 Holding v. Pigott, which was an action by an outgoing against an 
 incoming tenant, differed from Wehh v. Plumnier, in this, that there 
 ivere no exjpress stipulations in the lease as to the mode of ([uitting which 
 could exclude the custom, and hence the outgoing tenant was held to be 
 entitled to his way-going crop of one-half of the wheat sown after a 
 crop of turnips, according to the custom of the country, though the 
 terms of his holding were that wheat-land should be summer fallowed. 
 The Court considered that Boraston v. Green, both in its decision and 
 the reasons given by Lord EUenhorough and Mr. Justice Bayleg, went 
 strongly to the principle that the landlord would have his remedy by 
 action for breach of covenant, and the tenant the wheat under the cus- 
 tom; and that if that was the conclusion, in case the landlord had 
 taken to the premises at the expiration of the term, it must be equally 
 so at least where there is a new incoming tenant. Here the landlord 
 laid no claim at all to the crop, and did not even insist upon damages 
 for the breach of covenant ; but the tenant, who was not entitled to 
 those damages, set up the breach of covenant made with his landlord 
 as a ground for divesting the outgoing tenant of the property in the 
 corn, which he claimed under the custom. 
 
 The principles of the decision in Munceg v. Dennis are to be found 
 in Holding v. Pigott. It was to the effect that, as under the custom 
 of the country the tenant would have been entitled to be paid for the 
 straw and manure on leaving, the covenant that the tenant should consume
 
 326 CONSUMPTION OF HAY AND STEAW. 
 
 icUh stock on tlie farm all the hay, straw, and clover groicn thereon, and 
 containing as it did no provisions as to straw vnconsamed on quitting, 
 was not inconsistent with the custom of the country, and that therefore 
 the pUiintiff was entitled to be paid for it. The action was brought to 
 recover £13 10s. from the incoming tenant, according to the custom of 
 the country, for the value of straw left by the plaintifip, the outgoing 
 tenant, at Michaelmas, 1854, on quitting the occupation of two pieces 
 of land, leased by one Flanders to the plaintiff. The lease contained 
 covenants by the plaintiff that he would cultivate the farm according to 
 the custom of the country, and that "he should with the last wheat crop 
 lay down the same with 20lbs. weight of good clover-seed per acre, and 
 continue the same so laid down for feeding, not to exceed three gi'ounds 
 belonging to the farm ; and should and would during all the said term 
 consume with stock on the said farm, all the hay, straw, and clover 
 grown thereon, which manure sliould be used on the said farm: and 
 that the said iSmith Flanders, his heirs and assigns, should and would 
 allow the said Ellis Muncey to occupy half the rooms in the house and 
 the barn-yards and granary until Midsummer day after the expiration 
 of the said term, if necessary, to end the cropping of the said Ellis 
 ]\Iuncey grown on the said premises thereby demised." The defendant 
 objected that evidence of the custom of the country (Cambridgeshire) 
 was inadmissible ; but the under-sheriff decided that he would admit it. 
 The custom was proved to be that when an incoming tenant pays for 
 straw and manure, he is paid when he goes out : when the dung belongs 
 to the landlord, the incoming tenant pays for the thrashing, dressing, 
 and carting to market, and has for that the straw, chaff", and colder; but 
 when the dnng belongs to the tenant, then the straw is valued by the 
 ton at a consuming price. 
 
 On taking possession of the farm, the plaintiff had [»aid for the ha}', 
 straw, and manure according to the former valuation, and on his 
 leaving the farm the straw was valued by a person named by the 
 defendant, who admitted that he agreed to the valuation "if it was 
 lawful." "Ending the cropping" was explained by one of plaintiff's 
 witnesses to mean the hiirvcstiug and thrashing out of the corn, and 
 so turning it into straw ; but not consuming the straw. The plaintiff 
 had a verdict for the amount claimed ; and a rule for a new trial on 
 the gi'ound that the lease excluded the custom of the country was dis- 
 charged. Pollock C.B. said: " I'lie defendant's contention was that 
 by the lease the plaintiff v.as bound to consume all the straw, and not 
 to leave any, and that th'.refure he could have no right to be paid for 
 any which he did leave. But we think this is not the meaning of the 
 clause. The meaning is that no straw shall be removed off the pre-
 
 COVENANT NOT TO CAEPtY OFF HAY. 3:Z7 
 
 mises. If the defendant's construction is riglit, the tenant breaks his 
 covenant by leaving any straw, and therefore as the right of onstand 
 does not apply to the consumption of the straw, he must keep his straw 
 and cattle so nicely adjusted, that the last stalk is finished by the 11th 
 of October, 1854, including that produced at the previous harvest, or 
 he will be liable to an action, although it is certain that the consuming 
 of the straw is a benefit to the consumer, and that it would be a gain 
 to the succeeding tenant to have the straw left gratis for him, rather 
 than the manure, its produce." 
 
 A covenant in a farming lease, that the lessee ''shall not nor will 
 during the last year of the term sell or remove from the lands demised, 
 any of the hay, straw, and fodder which shall arise and grow thereon," 
 prohibits the lessee from removing any of the hay or straw during the 
 last year of the term, at whatever period of the term it may have 
 grown {Gale v. Bates, 33 L.J. N.S. Exch. 235). 
 
 An outgoing tenant, on quitting his farm at Michaelmas, gave up to 
 the incoming tenant, and the incoming tenant exercised it, the right he 
 had under the lease of converting the straw on the farm into manure 
 with his cattle from Michaelmas to Lady-day. The incoming tenant's 
 cattle, in the process of so converting the straw into manure, ate a 
 portion of straw calculated at one third of the bulk'; the outgoing tenant 
 is entitled to be paid for this by the incoming tenant {Stafford v. 
 Gardner, 7 L.R C.P. 212). 
 
 Effect of covenant not to carrij away liaij and .sfraa% dr., vndcv a 
 Ijencdtij. — On a covenant in a farming lease, that the lessee would not 
 sell or carry away from the demised premises any hay, straw, or manure, 
 which should be grown or produced thereon, without the consent of the 
 lessor first had and obtained, under the increased rent of £10 for every 
 ton so sold or carried away, and so in proportion for any greater or less 
 quantity, but that the lessee would eat and consume the hay and straw 
 Avith his cattle ; the breach alleged was that the lessee, without the con- 
 sent of the lessor, did sell a large quantity of hay and straw grown and 
 produced on the demised premises, to wit, &c. It was held by the 
 Court of Exchequer, that the covenant was one covenant, which gave 
 the lessee the right to sell the hay, &c., on payment of the increased 
 rent, and that therefore the breach was not well assigned. And per 
 Bramwetl B., " The expression is first, that he should not sell or carry 
 away from the demised premises any manure, and so forth, but it is 
 said under an increased rent of £10. That is to say, he shall not do 
 it, except on liability to pay a rent. I think that is the fair meaning 
 of it. If you do it, you may do it on a liability to pay rent. If that is 
 the true construction of the document, he covenants to pay an increased
 
 3:28 DEFINITION OF HAY. 
 
 rent. There is no absolute covenant that lie will not do it. If that is 
 the true construction of the document, then undoubtedly the declara- 
 tion ought to have alleged that increased rent, and though the time for 
 payment arrived, that it had not been paid. * * It seems to me 
 that Hio\sl V. Hi'ist (4 Ex. 571, 19 L.J. (N.S.) Ex. 401) was well 
 decided on principle, and that it is distinguishable from this case. In 
 If tost V. Iliirsl the Court says the meaning of the covenant is, " You 
 shall not lop the trees ; further, if you do you shall pay £20." If the 
 covenantee think fit to avail himself of it, then the consequence is there 
 may be a good breach of the original covenant : therefore the declaration 
 is a good one. But the Court came to that conclusion on the ground 
 that there were two covenants there ; one an absolute one — not to cut 
 the trees, and the other an absolute one — to pay liquidated damages if 
 he did so. But we decide this case on the ground that this is not so 
 here. There is no covenant that the defendant will not remove the 
 manure, but a covenant that he will not do it without paying £10 ; in 
 fact, there is only one covenant, which is a complex covenant that he 
 shall pay £10 if he remove it. It seems to me in this case, the plaintiff 
 can only recover the agreed £10, that he is not entitled to claim un- 
 liquidated damages, and consequently he ought in the declaration to 
 have shown he^is entitled to £10 per ton, and made a good breach as to 
 its non-]jayraent ; and in that case the declaration would be good ; not 
 having done so, it is bad, and is distinguishable from Hurst v. Hurst 
 on the ground I have named." 
 
 " Hay " ill farming lease includes haij not fit for fodder. — Where it 
 was coA'enanted in a farming lease that an additional rent of £10 per 
 ton should be payable " if hay, straw, or other dry fodder " should be 
 sold and taken off from the farm, and hay had been taken off by the 
 defendant which was not fit for food, it was held by the Court of Ex- 
 chequer that such damaged hay was still within the meaning of the 
 covenant, which implied that everything grown on the farm should 
 remain and be used there (Fielden v. Taitersalt). 
 
 Construction of drainage covenant in lease. — An agricultural lease 
 contained a covenant on the part of the lessor, his heirs, &c., that he 
 and they would " drain with proper drain-tiles, one rood apart, ten 
 acres of the land now in rye grass, at his and their costs, except the 
 caiTiage of the said drain-pipes, which is to be borne and paid by the 
 lessee ; and will drain tlie remainder of the lands hereby demised, in 
 manner aforesaid, upon being paid a further yearly rent of £5 for every 
 £100 60 expended." It was held by the Court of Common Bench, 
 that the words " in manner aforesaid " referred only to the mode of 
 performing the work, viz., placing the drain-tiles one rood apart ; and
 
 COMPENSATION TO OUT-GOING TENANT. 329 
 
 consequently that the tenant was not chargeable with the expense of 
 carriage of the drain-pipes beyond the first ten acres {Beer appf. v, 
 Santer reftpt.). 
 
 A mcuje for a landlord la pay a sum in compenmtion to the offyoing 
 tenant, for the labour and e.rjmue bestowed by him upon tiUijig, failowing, 
 and manuriny tlie arable and meadow land, according to the course of 
 good husbandry, the advantage of which the tenant could not otherwise 
 reap, is a reasonable usage ; and such practice being a mere usage of 
 the neighbourhood (Bradford) is not a custom strictly speaking, and 
 need not be immemorial {Datby v. Hirst). And, in fact, where an out- 
 going tenant does the necessary ploughing, and sows the land in the 
 ordinary and proper course of husbandry, and leaves manure for the 
 benefit of the landlord, which is accepted by him, the law, without 
 allegation or proof of the custom of the country, will imply an assumpsit 
 on the part of the landlord to pay the tenant the value of such labour 
 and manure, and the plaintiff is not deprived of that right by reason of 
 his having held over after the expiration of the term {Martin v, Coulman). 
 
 This principle of compensation by a landlord to his outgoing tenant ivas 
 extended by Coleridge and Erie JJ. to the case of drainage, in Mousley v 
 Ludlam, where their Lordships held that it is not an unreasonable 
 custom that a tenant who is bound to use and cultivate his farm ac- 
 cording to the rules of good husbandry and the custom of the country, 
 should be entitled on quitting to charge the landlord with a certain 
 portion of the expense of the necessary drainage done without his con- 
 sent or knowledge. This was a County Court action by an outgoing 
 yearly tenant to recover £50 from his landlord, for having given up to 
 him his farm at his request with the appurtenances, and the benefit 
 and advantage of work done, manure, soughing tiles, and other materials 
 expended and bestowed by the plaintiff in and about the cultivation 
 and improvements thereof, together with stone posts, grass, herbage, 
 crops, chattels, and effects then growing and being thereon. The 
 plaintiff had been a yearly tenant to the defendant in Derbyshire, on 
 condition that he should use the farm in a good and tenantable manner, 
 according to the rules of good husbandry and the cnstom of the coun- 
 try, and the valuation of his tenant-right included charges under each 
 of the above heads. For draining, which had been done two years, he 
 charged the landlord with five-sevenths of the cost, and for that which 
 had only been done one, with six-sevenths. This draining was done 
 without the defendant's consent, and his witnesses stated, in contradic- 
 tion of the plaintiff's, that where it was done without such consent, the 
 custom of the country that the offgoing tenant, in addition to com- 
 pensation for crops, &c., should be paid for the expense of drainage and
 
 330 COMPENSATION FOR DRAINING. 
 
 tiles, did not apply. No question was raised as to the propriety of the 
 di-aiuage. The defendant merely contested the right of the plaintiff to 
 chai-ge him for drainage done without his knowledge. The jury be- 
 lieved the plaintiff's witnesses, and found for him Avith damages. 
 
 It was contended for the defendant, among other things, that the 
 judge ought to have directed the jury that the alleged custom under 
 which the plaintiff charged the landlord with the expense of draining, 
 could not be supported in law. Coleridge J. considered that it was 
 inyolved in the alleged custom that the tenant is to farm according to 
 the rules of good husbandry, especially as certain lands absolutely re- 
 quire drainage to make them bear. His liordship added, "The finding 
 must be taken with reference to the terms upon which the tenant held 
 the farm. We must assume that the jury have found that this draining 
 is according to the rules of good husbandry. It seems to me that it is 
 not an unrensonable custom that a tenant, who is bound to use a farm 
 in a good and tcnantable manner, and according to the rules of good 
 husbandry, should be at liberty on quitting the farm to charge his 
 landlord with a portion of the expenses of draining the land that 
 requires draining, according to good husbandry, though the drainage 
 be done without his landlord's knowledge or consent," Erie J, added : 
 " I think that the finding of the jury fairly means that the custom is 
 that the drainage must be according to the rules of good husbandry. 
 If a tenant contracts to hold according to the custom of the country, 
 the usage of the country becomes part of the contract. It would not be 
 an unreasonable contract between landlord and tenant that the tenant 
 should be at liberty to put in such drainage as was necessary, and that 
 the landlord should pay a portion of the expense. If it be not un- 
 reasonable as a contract, I do not sec how it is unreasonable as a 
 custom." The appeal was dismissed, with costs. 
 
 In Clarice v. Roijsione the declaration stated that the plaintiff was 
 possessed of a farm on which he had laid certain manure, and in con- 
 siderafion that tj/e 'plaintiff would give v^i the farm to his landlord (the 
 defendant) and let him have the benefit of the manure, the latter 2^1'onmed 
 to pay him so much money as he deserved to have, according to the 
 custom of the country. Breach — nonpayment of the value of the manure. 
 In the memorandum of agreement between them, and signed by both — 
 *'Be it remembered that the above closes of land have been only clipi^ed 
 or mown once, and since manured with eight loads of rotten manure 
 per acre, v/hich the tenant agrees when given up by him to leave in the 
 same state, or allow a valuation to be made." This agreement having 
 Tjeen proved l^y the plaintiff, it was contended for the defendant that 
 there was a variance between the allegation in the first count and the
 
 PAYMENT FOR MANURE. 331 
 
 proof adduced in support of it, and that the count was not proved. 
 FoUocIc C.B. was of that opinion ; and the jury having found for the 
 plaintiff, gave the defendant leave to enter a verdict on the first count 
 (the two others were for use and occupation to recover the rent), and 
 the Court made the rule absolute, on the ground that the written 
 agreement excluded the custom of the country, as being inconsistent 
 with it, and that therefore there was a variance between the declaration 
 and the proof, AJderson B. said : " It appears to me that the reason- 
 able and natural construction of the agreement is that the party is to 
 pay nothing down, but that he is to do something when he goes out of 
 possession, or to pay for the deterioration of the property if he does not; 
 and that this stipulation being inconsistent with the custom of the 
 country, the contract must prevail, and the custom of the country must 
 be excluded," 
 
 In Stafford v, Gardner (7 L.R. C.P, 242) the plaintiff was tenant of 
 a farm with a right to the use of a certain part of the premises without 
 payment until the 25th March next after the expiration of the term for 
 threshing and spending the last year's crop, and by the custom of the 
 country, he was entitled at the expiration of the term to be paid by the 
 landlord or incoming tenant for certain tillages. He gave up the farm to 
 the defendant as incoming tenant at Michaelmas, 1870, and valuers were 
 appointed by both parties and duly made their valuation. After the defen- 
 dant had entered into possession, but before 25th March, 1871, the land- 
 lord gave him notice that rent was due from the plaintiff, and requested 
 him to pay the amount of the valuation, which was less than the rent due, 
 to him, the landlord, and not to the plaintiff. This the defendant did, 
 and the plaintiff brought an action to recover the amouut due for the 
 tillages : he was non-suited, and the Court of Common Pleas confirmed 
 the non-suit. 
 
 Payment by landlord for manure and tillayes, ([•(•,— In Newson v. 
 Smithies, the plaintiff covenanted with the defendant, his landlord, to 
 deliver up possession of a certain farm and land on a day named, and 
 that in the meantime he would cultivate the land according to the 
 custom of the country, and that upon the delivering up of the land he 
 would surrender and yield up a certain agreement to be cancelled, and 
 all his unexpired term and interest in the farm, and would afterwards, 
 on request, execute any farther de<3d for effectually surrendering the 
 term ; and the defendant covenanted that if the plaintiff did on the day 
 named deliver up possession, and did and should in the meantime cul- 
 tivate the land, according to the custom of the country, and also did 
 and should well and truly olservc, perform and Iceep all and singidar other 
 the covemtnts and agreements IhereinUfore contained, and on his 'part to U
 
 332 VALUATION BETWEEN LANDLORD AND TENANT. 
 
 j)erfan»c(J, he, the defendant, would upon the delivery up of possession 
 of the said land, on the day specified, so cultivated as aforesaid, a/id on 
 such performance of such other covenants aforesaid, pay the plaintiff for 
 the manure, tillages, hay, clover, and all other things then upon the 
 laud, as were usually paid for between an outgoing and incoming tenant. 
 It was held by the Court of Common Pleas, on the authority of Boone 
 V. Eijre (1 H. B. 273 n), that the delivery up of the agreement was not 
 a condition precedent to the payment for manure, &c." 
 
 Bight to have letters 'produced on question respectincj valuation of tillage, 
 Ac. — In Brice v. Harrison, the declaration stated an agreement between 
 the plaintiff and defendant, that the plaintiff should lease to the 
 defendant a fixrra, and that defendant should forthwith, after making 
 the agreement, pay to the plaintiff the amount of certain tillages on the 
 farm, at a valuation ; and the breach averred was the non-payment of 
 the valuation. The defendant on an aflBdavit stating that during the 
 treaty for the farm, he had written letters to the plaintiff, which were 
 in the plaintiff's possession, but of which the defendant had no copies, 
 and that he believed it was on such letters that the plaintiff relied to 
 establish such agreement, and that he had a just ground to defend the 
 action, and that it was necessary for the purpose of his pleading that 
 he should inspect the letters, obtained an order from a Judge at. 
 Chambers to inspect them. It was held, on cause being shown against 
 a rule to rescind the order, that the defendant was entitled to insp)ection 
 at common law. And per Williams J., " It did not follow in Shadwell 
 V. Shadu-ell (28 L.J. (N.S.) C.P. 275), that a writing must be 
 necessarily produced to prove the agreement referred to ; but here the 
 declaration could not be proved by parol evidence only. The plea 
 there might have been supported by a release by parol, a writing was 
 not necessary ; and it also appeared to me that there was only a surmise 
 that the defendant intended to rely on some document supposed to exist." 
 
 Where persons are appointed under an agreement merclg to value the 
 goods and repairs of a farm, an appraisement stamp upon the written 
 valuation is sufficient without an award stamp (Leeds x. Burroics), 
 although in fact the appraisement is in the nature of an award (BerJcins 
 V. Botts). And 2>er Wilde C.J. : " ' Tivo sworn appraisers ' in statute 2 
 Will d; Marg, sess. 1, c. 5, s. 2, must be persons reasonably competent, 
 but need not be professional appl-aisers " {Boden v. Egton). Where an 
 agreement in writing relating to an interest in land contains also stipu- 
 lations for the mode in which the straw and manure upon the premises 
 was to be valued, the Court of King's Bench held that the agreement 
 was entire, and that the mode of valuation could not be validly altered 
 by a subsequent parol agreement between the parties [Harvog v. Grah-
 
 VALUERS 01" ECCLESIASTICAL PROPERTY. 333 
 
 hum). There may possibly be (though qimre) an abandonment of the 
 entire agreement by parol, but at all events there can be no such partial 
 abandonment {ih.). It was decided in Cooper v. ShiiUlcwortli, that an 
 agreement to settle disputes between two parties, as to the amount to 
 be paid by one of them in respect of the value of the goods belonging 
 to or work done by the other of them, by a reference io iiro valuers, one 
 to be appointed by each party, does not import any undertaking by the 
 former that the valuer whom he may appoint shall act in the valuation, 
 nor any liability for his not acting. The party is only bound to appoint 
 a valuer on his part, and if the person appointed does not act, the other 
 party is remitted to his original cause of action, and may revoke his 
 submission, or may possibly, if the valuer has undertaken to act and 
 failed in his duty, have a right of action against him ; but has no right 
 of action against the party who appointed him. And see Lcdfimore v. 
 Garrard. 
 
 One who holds himself out as a valuer of ecclesiastical ^^t'oper I u, though 
 he is not bound to possess a precise and accurate knowledge of the law 
 (as laid down in Wise v. Metcalfe) respecting the valuation of the 
 dilapidations as between outgoing and incoming incumbents, is bound 
 to bring to the performance of the duty he undertakes a knowledge of 
 the general rules applicable to the subject, and of the broad distinction 
 which exists between the cases of a valuation as between an incoming" 
 and outgoing tenant, and an incoming and outgoing incumhent (Jenkins 
 V. Betham). 
 
 In Branscomhe v. Rowdiffe, the Court of Common Pleas upheld the 
 valuer, and declined to decide in a case where the defendant had refused 
 to abide by a valuation, whether he was right or wrong in only allowing 
 one ploughing on a part of the land where there had been a crop of 
 turnips, one portion only of which had come to maturity, and had been 
 consumed by the plaintiff; while he allowed three in respect of another 
 portion, which had not arrived at maturity, and had been ploughed 
 in ; besides other charges for " working out and turning stroyle," and 
 spreading lime, which the defendant contended was out of the scope of 
 the agreement of reference. The second objection in Cumberland v. 
 Boives was, that there was no such valuation as entitled the plaintiff to 
 recover, because the valuation delivered out by the umpire did not 
 pursue his authority, and the latter was functus officio when he altered 
 it. On this Maule J. observed : "The umpire was not functus; he had 
 not valued at all till he gave out the perfect valuation. If a man does 
 not communicate the value of a specific thing which he is employed to 
 value, he does not value it at all." When it was urged by the defen- 
 dant's counsel, that by this ruling every objection in the case of an
 
 331^ FAIR VALUATIOX. 
 
 award -which is bad for excess would be cured, his lordship added: ''Not 
 so. The award is bad, not because the arbitrator has exceeded his 
 authority, but because he has not done that which the parties had 
 required him to do." 
 
 The dilliculty here arose from the substitution in the draft lease, " of 
 fair valuation " for " consuming price" The action was brought by an 
 outgoing tenant of a Herts farm against his landlady, to recorer com- 
 pensation for certain hay, straw, and manure, left by him on the farm, 
 and the defendant pleaded — first, that the umpire did not duly yalue, 
 and secondly, payment into Court of £520. The farm was taken by 
 the plaintiiT, subject, amongst others, to these covenants contained in a 
 draft lease, under which plaintiff's father had held : first, to house the 
 produce on the farm, and to thrash, feed, and fodder the same thereon, 
 and not to sell or dispose of any part thereof, e3;ce2:jf as after-mentioned ; 
 secondly, that he should be at liberty to sell and dispose of his hay and 
 wheat straw (except that of the last year's produce), bringing back 
 immediately for every load of hay and straw so disposed of, two loads of 
 o-ood rotten dung, or other equivalent manure ; and thirdly, that he 
 should, on the determination of his tenancy, leave all the hay, straw, 
 and manure arising during the last year of his tenancy, for the use of 
 his landlord or the incoming tenant, being i)uid for the hay and wheat 
 straw at a fair valuation. These latter words were substituted in the 
 draft lease for "consuming price." "When the plaintiff gave up his 
 farm at Michaelmas, 1853, a dispute arose between him and the defen- 
 dant as to the valuation of the hay and straw left liy him, the plaintiff 
 insisting that he was entitled to be paid for them at a "fair valuation," 
 and not a "consuming price," as was contended by the defendant. 
 Valuers were appointed on each side, and then, as they could not agree, 
 an umpire, who valued the hay, straw, &c., left on the premises, at 
 £77-1 1 1 s. od., sent in the following certificate: "I certify that I have valued 
 the above at a marketa1)le price in its present situation." This umpire 
 was the only witness called at the trial, and stated that he did not value 
 at a "consuming price "or at "a market price," but at a fair valuation." 
 After delivering out his valuation, he discovered that he had improperly 
 included in it a small quantity of old hay, worth £2, and the jury 
 returned a verdict for the plaintiff for £252 Us. dd., being the difference 
 between the sum paid into Court, and the amount of the valuation when 
 go altered. 
 
 Leave Avas reserved to the defendant to move to enter a nonsuit or 
 for a new trial, but the court discharged the rule. 
 
 In Clarice v. Westrojye, the struggle letween the mroming and outgoing 
 tenants was whether the former should pay the latter for the straAv at a
 
 FODDER OR CONSUMING PRICE. 335 
 
 ^' fodder p'ke'" or "a consuming price.'' The plaintiff entered in 1848 
 on the occupation of Morden Heath, a farm of Lord Hardwicke's, under 
 a written agreement made between his lordship's steward on his behalf 
 and the plaintiff's father and brother, at the commencement of a four- 
 teen years' lease in 1839. By clause A, the latter agreed '' to pay £5 
 for every load of fodder, straw, haulm, dung, or turnips which shall 
 be sold or carried off the premises, and the same sum for every 
 load of hay or wheat-straw sold or carried off the premises, fur which 
 there shall not be two loads of good dung or other manure (at the 
 option of the landlord) to be spent on the premises. Clause 15 was to 
 the effect that they agreed " to purchase all the hay, sainfoin, and tares 
 now in the yard, also all tlic dung and manure now on the 'premises, also 
 all the straw from the crops now stacked or about to be stacked in the 
 yard, paying a fair price for the same, to be ascertained by valuers on 
 both sides. Lord Hardwicke also engaged in a supplementary agree- 
 ment, when the tenant quitted the farm " to purchase all hay, sainfoin, 
 and tares in the yard the produce of the farm "' ('' all dung and manure 
 on the premises" struck out), "also all straw from the crops of the 
 previous harvest that may be on the premises, paying a fair price for 
 the same, to be ascertained by valuers." The plaintiff quitted the farm 
 at Michaelmas, 1853, and two valuers were appointed to value between 
 him and the incoming tenant. On the subject of the tillages, the fold- 
 ings, the fixturep, and some other matters, they agreed. The market 
 value of the straw at the tune was admitted to be 25s. per ton, but the 
 plaintiff's valuer estimated it at a " consuming price," or two-thirds of 
 the market value, while the defendant's valuer estimated it at a fodder 
 or browsage price, being one-half of the market value. On this point 
 they failed to agree, and as the negociations respecting a referee went 
 off, the valuation came to nothing, and an action was brought. It was 
 proved that according to the custom of the country, the incoming 
 tenant, in the absence of a special agreement, usually paid the outgoing 
 tenant for the straw at a consuming price ; but that if the outgoing 
 tenant was bound to consume all the manure on the farm, the allowance 
 in respect of straw as between him and the incoming tenant would be 
 only at fodder price. 
 
 The defendant insisted that, firstly, plaintiff could not maintain his 
 action, as there had been no valuation pursuant to an agreement of 
 May 30th, 1853 ; and secondly, that the terms of the contract under 
 which plaintiff had entered on the farm precluded any claim on his part 
 to be paid more than a fodder price for the straw on quitting it. The 
 above agreement was to the effect that the defendant would pay the 
 plaintiff for all the cultivation done upon the falloAVS, for the carriage
 
 33G SELLING HAY OR STRAW. 
 
 and labour of dung, and the folding of sheep on the farm, such valua- 
 tion to be made before September 29th, 1853. In answer to the 
 questions put them by WilUams J. on the trial, the jury found that it 
 was agreed between tlie parties, that the valuation of the straw should 
 be made on the same terms as that of the other matters mentioned in 
 the agreement ; that supposing the outgoing tenant entitled to the 
 manure, the straw was to be paid for at two-thirds of the market price, 
 but if he was not, at one-half of the market price ; and that when there 
 was no special agreement to the contrary the tenant was entitled to go 
 out as ho came in. It was agreed that the Court should decide by 
 whose lault the valuation went otf. A verdict was accordingly entered 
 for the plaintitf for £311 2.^. 1(/., beiug the whole amount claimed in 
 the particulars on the higher valuation, less £25 125. 8d. for price 
 and value of work, seeds, &c., supplied by the plaintiff, and leave was 
 reserved to the defendant to move to enter a nonsuit on the first point, 
 or to reduce the damages on the second to £215, the amount agreed 
 to be due upon the valuation at the lower price. The Court of 
 Common Pleas held upon the first point, that us inasmuch the valua- 
 tion ^s•ent off, and the straw had been consumed by the beasts of the 
 defendant, so that a valuation had become impossible, an action would 
 lie, in order to have the value assessed by a jury ; and on the second, 
 that such an action would only lie to recover the value of the straw at 
 the lower valuation, on the ground that the terms upon which the 
 valuation as between outgoing and incoming tenant w\as to be made, 
 were contained in a written agreement, which provided only that the 
 outgoing tenant should be paid for the straw on the premises, and not 
 for the dung, and according to the clear and established rule in these 
 cases, he was entitled to be paid for the straw only at a fodder price. 
 And per GresswcU J. : " The ground of the Court's decision on the 
 second point is, that there is an express stipulation that the tenant shall 
 pay for the manure on going in, but no stipulation that he shall be paid for 
 it on going out." Accordingly the verdict was ordered to stand for £215. 
 In Lowndes v. Fountain a farming agreement contained among others 
 this clause — "No luoj or siraiv io be sold of i/ie said land, without 
 consent of the landlord or his agent, except the ralue of the straw so 
 sold off be returned in manure on the said laud," and tiie Court of 
 Exchequer was equally divided as to whether "value'' was to be con- 
 strued as a manure or money value. The defendants took possession 
 of the land as assignees of one Boreham, under the agreement, in April, 
 1854, and continued to occupy it until Lady-day, 1855, when the 
 ]ilaintiff determined the tenancy by notice to quit. During their 
 tenancy the defendants sold all the straw off" the land, claiming to do
 
 MEANING OF VALUE OF STRAW. 337 
 
 SO for the benefit of the creditors of Boreham, and did not return any 
 manure on to the land. The seUing pi'ke of the straw was £1 per ton, 
 but its vcdue, if spent in manure, about Is. per ton. Tiie defendants 
 contended that according to the true construction of the agreement, 
 they were only liable in damages for the value of the straw if spent in 
 manure, and it was urged for the plaintiffs that the measure of damage 
 was the selling price of the straw. Alderson B. was of that opinion, 
 and there was a verdict for tlie plaintiff, with damages so calculated, 
 leave being reserved to the defendants to move to reduce the damages, 
 if the Court should be of opinion that the learned Judge had erro- 
 neously construed the agreement. Parke B. said : " The difficulty 
 arises from the use of the word ' value.' If the word had been ' price ' 
 instead of ' value,' then all the hay or straw sold off must have been 
 expended in the purchase of manure, and a much larger quantity of 
 manure would have been returned than the hay and straw could have 
 produced, if it had not been sold off. My brother Alderson retains his 
 opinion, and my brother Plait concurs with him. They think that the 
 term ' value ' means the value of the straw itself, and that that is to be 
 laid out in the purchase of manure, and spent upon the land. If, 
 indeed, this were in the nature of a penal clause, there would be reason- 
 able ground for concluding that the word ' value ' meant the market 
 value of the hay or straw, because that would be required to be brought 
 back in order to prevent the tenant from carrying off the hay or straw 
 at all. The Lord Chief Baron and myself think that this is not a penal 
 clause, and that it merely meant to keep the parties in statu quo. You 
 may sell the hay and straw off the land, but you shall do no injury to 
 the farm. You shall buy back a quantity of manure equal to that 
 which the hay or straw if left on the land would have produced. There 
 being a difference of opinion, no rule will be granted." PolJoch C.B. in 
 the course of the argument thus pointed out the special hardship of 
 construing *' value" as money value: "Some person might want the 
 straw and be willing to give for it a price beyond its farm value, or it 
 may be that there is a greater quantity than the tenant has occasion 
 for, so that it would be more profitable to sell it, and return its value 
 in manure ; but if the tenant is merely at liberty to take the price for 
 which it sells, and bring back that in manure, he would receive no 
 benefit." And it is submitted that the view of the Chief Baron and 
 Baron Parlce is the most in accordance with public feeling, and most 
 likely to be upheld if the question is re-opened. 
 
 A nice point also arose m Masscij v. Goodall, where the declaration 
 alleged that the defendant had become tenant from year to year to the 
 plaintiff on certain conditions and stipulations, one of which was that 
 
 z
 
 338 PENALTY FOR SELLING STRAW. 
 
 he " shotiU not sell any straw, &e., or manure grown or jJ^'odwed on the 
 said farm, without the ivritten licence'' of the plaintiff, under ceiiain 
 penalties, which were to be recoverable by distress or otherwise as addi- 
 tional rent, at the rate of £7 for every load of hay and £5 for every 
 load of straw, &c. To this allegation of a positive and unqualified 
 stipulation, that the defendant should not sell straw grown upon the 
 farm, it was assigned as a breach that the tenant did sell ten loads of 
 straw grown on the farm during the tenancy, and did not pay the £50 
 penalty for which the action was brought. The defendant pleaded that 
 the straw was sold after the determination of the tenancy ; and it was 
 held by Lord Campbell C.J. and Patteson J., on demurrer, that the 
 breach was well assigned, and came within the express words and 
 intention of the agreement, and that it was immaterial whether the 
 straw alleged to have been sold by the defendant was sold by him before 
 or after the determination of the tenancy, provided it was straw grown 
 on the farm during the tenancy. Lord Campbell said : " If the stipula- 
 tion were confined to sales during the continuance of the tenancy, there 
 would be nothing to prevent the tenant during the last year from 
 hoarding up all the produce of the farm, spending no part of the ma- 
 nure on the farm, and the day after the tenancy determined, selling it 
 all, leaving the farm ruined and exhausted. I do not think that such 
 a construction would make the agreement reasonable as between land- 
 lord and tenant." Judgment was given for the plaintiff. Erie J., how- 
 ever, thought that, looking at the stipulations as set out, which did not 
 include any provision that the landlord should take the unconsumed 
 produce at the end of the term, the tenant was entitled to use it as his 
 own after the tenancy expired, and need not leave it as manure for the 
 landlord, without any remuneration. 
 
 Manure is assignable by the tenant, though he thereby subjects himself 
 to an action for bad husbandry (Burbago v. King). A covenant by a 
 lessee that he will sufficiently muck and manure the land with two suffi- 
 cient sets of murk, within the space of six of the last years of the term, 
 the last set of muck to be laid upon the premises within three years of 
 the expiration of the term, is satisfied by the tenant laying on two sets 
 of muck within the last three years of the term {Pownall v. Moores). 
 Abbot C.J. said : " The object of the last-mentioned stipulation was that 
 all the benefit of the manure should not be exhausted during the lessee's 
 holding, but should at least partially continue at the expiration of the 
 term. But the lessee has nowhere restricted himself from laying on 
 both the sets of manure within the last three years, if he should think 
 l)roper, and we cannot by construction bind him beyond the terms of 
 his covenant." Parke B. ruled in Higgon v. Mortimer that if a tenant
 
 MEANING OF MANURE MADE ON FARM. 339 
 
 during his tenancy remove a dung-heap, and at the time of so doing 
 dig into and remove virgin soil, the latter becomes by operation of law 
 the personal property of the landlord, and is so completely revested in 
 him as to enable him to bring trespass de bonis asjportatis and d, fortiori 
 trover. 
 
 Where at the sale of the defendant's stock the tenant of an adjoining 
 farm bought two cows, and by the defendant's permission left them in 
 a shippon in the defendant's farm-yard for some weeks, bringing pro- 
 vender from his own farm to feed them, it was held that their manure 
 was manure made on the farm, and that the removal of it by the cows' 
 owner to spread on his own farm was a breach of a condition in the de- 
 fendant's lease, " to put and spread all the manure and compost then 
 collected in the midden-stead or any other part of the farm on the 
 meadow land, and not to sell, cart, or convey away any dung, compost, 
 or manure from the said farm " {H indie v. Follett). 
 
 Where the outgoing tenant is lound by his coveiumt not to carry away 
 the dung, his property, off the premises, but to sell it to the incoming 
 tenant at a valuation, he has a right of on-stand on the farm for it, till 
 he can sell it to the incoming tenant ; and as the possession and 
 property must remain in him in the meantime, he may maintain tres- 
 pass against the incoming tenant for taking it before it is valued {Beaty 
 V. Gibbons). 
 
 In iSmith V. Chance, which was an action of assumpsit for hay sold 
 and delivered, one of the terms on which the plaintiff held the land was 
 that he tvoidd consume the hay on the premises, or for every load of hay 
 removed ivould bring two waggon-loads of Worcester mucli, and spread the 
 same. When the plaintiff quitted, part of a rick of hay was left stand- 
 ing, which he sold to the defendant, but without mentioning the muck 
 agreement. The new tenant, in consequence of some dispute with the 
 plaintiff as to terms, would not let the defendant carry away the hay 
 till he had bought the manure. At the end of a month, permission 
 was given ; and as the hay had been spoiled in the meanwhile, by 
 exposure to the weather, the defendant refused to take or pay for it. 
 The jury found for the plaintiff, but the Court of Queen's Bench 
 ordered a new trial, on the ground that although by the agreement 
 the plaintiff was not bound, while in possession of the land, to bring 
 on the manure till after the hay had been removed, still, after the 
 expiration of the plaintiff's tenancy, the then succeeding tenant might 
 make the bringing on of the dung a condition precedent to carrying off 
 the hay. 
 
 The following nmnxire agreement was held by the Court of Exchequer 
 to be a contract relating to the sale of goods, wares, or merchandize 
 
 z 2
 
 340 STREET-SWEEPINGS CONSIDERED MANURE. 
 
 withiu the exemption in the Stamp Act 55 Geo. III. c. 184, schedule 
 part I, title " Agreement." 
 
 Agreement between Mr. Wm. Gnrr and Mr. Scudds :— 
 
 "I doll aggree {sic passim) to take all the raannure at 4^7. each horse, 
 a week for 45 horses by the year ; and to keep it cleared away every 
 week ; and likewise to let the few Gardners have a few loads at the 
 same price, and serve them ; and to let me have during the year 60 
 loads of straw at £l Os. per load : began the year 23 July, 1852, and 
 ends 23 July, 1855. "Wm. Gurr." 
 
 A horse and cart employed by a dust contractor in conveying street 
 siveej)ifi(/s (found in this case to be manure) to a place of deposit, partly 
 for the contractor's own use as manure, but principally for the purpose 
 of sale as manure, was held in Heg. v. Frei/Jce, to be within the following 
 exemptions in a local turnpike act (59 Geo. III., c. 95, s. 25) : " For 
 any horse or other cattle or carriage employed in carrying or conveying 
 (among other things) manure employed in husbandry for manuring or 
 improving the land." Lord Camphell C.J. said : " I am of opinion 
 that this exemption was properly claimed ; and this exemption being 
 for the benefit of agriculture, that is as much affected by this case 
 being exempted from liability to toll, as by the case where the manure 
 is being actually conveyed by the farmer to be laid on his own land." 
 His lordship also ruled that a cart carrying guano to a place of deposit 
 to be sold again was within the exemptions (/?;.). 
 
 Gurncy B. had previously ruled in Pratt v. Brown that uncrushed 
 hones which are taken through a turnpike to a farm, to be there 
 crushed, and part of them there used as manure, and the residue to 
 be afterwards sold, and to be used for manure at other farms, are 
 exempt from toll under 3 Geo. IV., c. 126, s. 32, and 5 & 6 117//. lY., 
 c. 18, s. 1. By section 1 of the latter act "no toll shall be demanded 
 or taken on any turnpike road for or in respect of any horse, beast, 
 cattle, or carriage when employed in carrying or conveying only dung, 
 Boil, compost, or manure for land [save and except lime), and the neces- 
 sary implements used for filling the manure, and the cloth that may 
 have been used in covering any hay, clover, or straw which may have 
 been conveyed." P>ut by sec. 2 of this act it is provided that "nothing 
 herein contained shall extend or be construed to extend so as to exempt 
 any waggon, cart, or other carriage laden with dung or manure for 
 manuring land, or any horse or other beast drawing the same from any 
 toll imposed in respect thereof, by virtue of any local act or acts now 
 passed, whereby such toll has been imposed for the maintenance of the
 
 THKASHING MACHINES IMPLEMENTS OF HUSBANDRY. 341 
 
 roads therein respectively mentioned," As the non-exemption of lime 
 was felt to be a hardship by agriculturists, the statute 13 & 14 Vict. 
 c. 79, s. 3, empowered the trustees or commissioners of any turnpike road, 
 notwithstanding any local act, and without the consent of those who 
 have lent money on the credit of the tolls, to reduce or wholly take off, 
 if they think fit, tolls on lime used for the improvement of land. 
 
 It was enacted by sec. 4 of stat. 14 & 15 Vict. c. 38, that the words 
 *' implements of Imshafidri/," in 3 Geo. IV., c. 126, s. 36, should be 
 deemed to include thrashmg-'machines ; and it was held by the Court 
 of Queen's Bench in Reg. v. Matty that horses employed in conveying 
 a steam-engine, which is intended to be used as the motive power of 
 a thrashing-machine, which accompanies it, are exempt from toll. 
 The steam-engine in this case was drawn by horses, and was follow- 
 ing a thrashing-machine also drawn by horses, and both were going 
 along a turnpike -road to a farm, to be employed in thrashing corn. 
 The thrashing-machine was allowed to pass through the turnpike-gate 
 free of toll, but toll was taken for the steam-engine, and the toll-keeper 
 was afterwards convicted for improperly taking such toll, and his con- 
 viction was affirmed by the Worcester June Quarter Sessions, sul)ject 
 to a case for the Court of Queen's Bench, which affirmed the con- 
 viction. 
 
 Lord CampMl C.J. said: "Looking at statute 3 Geo. IV. c. 126, I 
 should rather think that a thrashing-machine is an implement of hus- 
 bandry within the meaning of that act, were it not for the particular 
 words ' ploughs or harrows,' which precede that expression ; and may 
 therefore narrow its meaning. But stat. 14 & 15 Vkt. c. 38, s. 4, having 
 expressly enacted that implements of husbandry shall be deemed to in- 
 clude thrashing-machines, that point is settled ; and the question is 
 whether this steam-engine, which was to be used for the thrashing- 
 machine, and for no other purpose, is to be considered as part of the 
 thrashing-machine. I think that it is. Both the machines belonged 
 to the same man, were travelling together, and if the same horses had 
 dragged the whole machine together, it is not doubted that the exemp- 
 tion would exist as to the whole. Suppose, for convenience, that the 
 thrashing-machine had been divided into two carts, both would have 
 been entitled to be exempted from toll ; and it can make no difference 
 that the thrashing- machine and the steam-engine were in like manner 
 separated. I think further, that if the steam-engine had been travel- 
 ling by itself for the sole purpose of working the thrashing-machine, 
 in such case the exemption would arise. We here distinguish between 
 horses or animal power, which cannot be an implement within Dr. John- 
 son's definition of the word, and a steam-engine, which is within the
 
 343 LIABILITY OF THEASHING MACHINES TO TOLL. 
 
 definition. If spades were employed for husbandry, the cart carrying 
 them would be exempt from toll ; but not so if the spades were intended 
 to be sent out to California, or to be used for some purpose foreign to 
 husbandry." But Colpridge and Cronipfon JJ. seemed to doubt whether, 
 if a person ke^t a steam-engine to go about to different tkr asking -machines, 
 it would be exempt. 
 
 Where a person sent by a horse and cart thrashed barley, which had 
 grown upon his farm, to the mill for the purpose of having it brought 
 back as meal to be consumed by pigs on the farm, it was held that the 
 horse and cart were exempt from toll, on the ground that meal came 
 within the words ' fodder for cattle ' {Clements v. Smith). 
 
 Thrashing-machines, though exempt from toll by General Tunipike 
 Act, may be made liable to a toll by a local act, 14 & 15 Vict. c. 38, s. 4 
 (Ablest V. Pritchard, 1 N.R. C.P. 210).
 
 TRESPASS. 343 
 
 CHAPTER XI. 
 
 TRESPASS AND GAME. 
 
 To entitle a man to hring trespass, he must at the time when the act 
 was done which constitutes the trespass, either have the actual pos- 
 session in him of the thing which is the object of the trespass, or else 
 he must have a constructive possession, in respect of the right being 
 actually vested in him {Smith v. Miller). 
 
 Where A. commissioned her brother to buy her a cow, and a fort- 
 night afterwards he bought her one, but as it was being driven home, 
 and before she had assented to the purchase, the cow was taken by 
 the defendant ; it was held by Lord Demnan C.J. that A. had such a 
 property in the cow as would enable her to maintain trespass ; the 
 evidence here showed a property in the plaintiff at her election ; and by 
 bringing the action she had elected to take to the bargain and to make 
 the cow hers {T/wmas v. Philips). 
 
 The plaintiffs, churchwardens and overseers of a piarish, ivho inclosed 
 parcel of a waste under statute 39 Geo. III. c. 12, and 1 & 2 Will. IV. 
 c. 42, were held to have a sufficient possession to maintain trespass 
 against an inhabitant of the parish, who destroyed their fence, without 
 establishing any right of common, notwithstanding they failed to show 
 the consent of the lord of the manor to their inclosure {Matson v. 
 Cook). A possessory right, sufficient to sustain trespiass, may be resorted 
 to, even after it has appeared that the plaintiff has in fact no legal 
 title ; and when the locus in cpio is the soil of a street, and the only 
 actual possession he sets up is by his recent commencement of a 
 building upon the hcus in quo, the pulling down of the incomplete 
 walls of which was the trespass complained of, and which were pulled 
 down on the suggestion that they constituted a nuisance to the high- 
 way {Every v. Smith). The defendants, who were highway commis- 
 sioners, pleaded Not possessed, and justified in abatement of a nuisance 
 on the highway, but did not justify under the owner of the soil. And 
 2)er Bramivell B. : " They not having justified under the owner of 
 the soil, that would be a trespass, at the suit of the parties in actual 
 possession" {ib.).
 
 S4^i PLEA OF NOT GUILTY TO TRESPASS. 
 
 The Coiu't of King's Bench held that where a person has an ex- 
 chisive right to dig turf and peaf, or a right to a sole and separate 
 pasture, for a time, trespass lies by him, though he has not the 
 absolute right to the soil ( Wilson v. Jlarlcrrfh). But ^w Wihnot J. : 
 "If this was only a right of common of turbary, trespass would not 
 lie " (/7^). In Pearce v. Lodge, which was an action of trespass for 
 taking and carrying away furze, the defendant pleaded the general issue, 
 and several special pleas, in which he claimed a right to estovers from 
 a common. It was held by the Court of Common Pleas that under 
 the general issue he might give evidence of an exclusive right of pos- 
 session, and that persons who had a right of common were competent 
 witnesses for the defendant, to prove that he was entitled to the exclu- 
 sive possession of the land from which the furze was taken. 
 
 In an action for a trespass to land, the plea of Not guilty operates as 
 a denial that the defendant committed the trespass alleged in the place 
 mentioned ; but not as a denial of the plaintifTs possession, or right of 
 possession of that place, which, if intended to be denied, must be traversed 
 specially {Reg. Gen. H.T. 1853, PL, r. 16). In such action a regular 
 judgment may be set aside upon an affidavit of a defence on the merits, 
 or that there was no probability of the plaintiff's recovering more than 
 £5, or obtaining the judge's certificate under stat. 13 & 14 Vict. c. 61 
 {WihonN. Greenrogd). Under a plea to trespass upon land, that the 
 close is not the close of the plaintiff, the defendant may show a lawfal 
 right to tlie possession of the dose either in himself or in some other person 
 under whose authority he claims to have acted {Jones v. Chapman). 
 
 No person has at common law a right to glean in the harvest field 
 {Steel V. Houghton). Neither have the poor of a parish legallg settled 
 (as such) any such right (/&.). 
 
 In the case of « trespass in law merelg, ivithout actual force, the owner 
 of the close, &c., must first request the trespasser to depart before he 
 can justify layuig his hand on him for the purpose of remoWng him ; 
 and even if he refuse, he can only justify so much force as is necessary 
 to remove him {Green v. Goddard) : but if the trespasser use force, 
 then the owner may oppose force to force {ih.). Trespass lies for 
 working an estrag, though the original taking be admitted to be unlawful 
 {Oxleg v. Watts). 
 
 Trespass will lie for hrealdng a dovecote. Pigeons hept in an ordlnarg 
 dovecote, having liberty of ingress or egress at all times by means of 
 holes at the top, may be the subjects of larceny {Reg. v. Cheafor) ; and 
 jier Curiam : " It lias been mistakenly supposed that Pctrke B., in Lalie's 
 case, decided that pigeons were not tiie sul)ject of larceny except strictly 
 confined; there is no question that they arc, even though they are
 
 ENTRY BY LORD OF THE MANOR. 84-5 
 
 allowed the liberty of going to enjoy the air when they please {lb.) In 
 Comyn's Digest {Biens B.) it is said that ' deer in a park, conies in a 
 warren, and doves in a dove-house go with the inheritance to the heir.' 
 A man may prescribe to have a game of swans within his manor, and 
 may prescribe that his swans may swim in the manor of another. A 
 swan may be an estray, and cygnets belong equally to the owner of the 
 cock and the hen, and shall be divided betwixt them " {Reg. v. Lady 
 Joan Young). The punishment for stealing a swan used to be that it 
 should be tied up by the neck, and the offender should pile wheat on it 
 till it was covered. And per Bagleg J. : " Bees are property, and the 
 subject of larceny " {Hamiam v. Mockett). But dogs are not the subject 
 of larceny at common law, and therefore not chattels within statute 
 7 & 8 Geo. IV. c. 29, s. 53 {Reg. v. Robmson). 
 
 Any possession is legal possession as against an evil-doer {Graham 
 V. Peat; Oughfon v, Sejipings). A pfcirtg ivho has the legal title to land, 
 having entered, may maintain trespass against a person wrongfully in 
 possession at the time of entry, and continuing in such possession after- 
 wards {Butclw V. Butcher). And per Bagleg J. : " Taunton v. Costar 
 is an authority to show that a party wrongfully holding possession of 
 land cannot treat the rightful owner, who enters on the land, as a tres- 
 passer. I think that a party having a right to the land, acquires by 
 entry the lawful possession of it, and may maintain trespass against any 
 person who being in possession at the time of his entry wrongfully con- 
 tinues on the land." And 2^cr Lord Tenterden C.J. : " It is not neces- 
 sary that the party who makes the entry should declare that he enters 
 to take possession ; it is sufficient, if he does any act, to show his inten- 
 tion. Here his servants ploughed the land : it is manifest, therefore, 
 that he intended to take possession." 
 
 Since 3 & 4 Will. IV. c. 27, a mere entrg Inj a lord of the manor 
 (where, as possession had commenced adversely more than twenty years 
 before, and nothing had occurred to interrupt or put an end to it, 
 ejectment was too late) is not enough to bar the tenant's right, unless 
 accompanied by circumstances which would restore the possession of 
 the land to the lord {Doe dem. Baiter v. Goombes). Here the defendant, 
 more than twenty years ago, without permission of the lord, inclosed a 
 small portion of the waste of a manor, on which he built himself a hut. 
 In 1835, the encroachment having been presented at the lord's court 
 the then lord of the manor, accompanied by his steward, went to the 
 premises, Coombes' family being there, and stating that he took pos- 
 session, directed that a stone should be taken out of the wall of the hut 
 and that a portion of the fence should be removed. All this was done 
 in the absence of Coombes, and the lord and the steward then retired
 
 346 INCLOSUEE OF WASTE LAND. 
 
 without doing anything more. It was held by the Court of Common 
 Pleas that the acts so done by the lord did not amount to a dispos- 
 session of Coorabes, and a resumption of possession by the lord, so as 
 to entitle the latter to maintain ejectment within twenty years, from 
 that time. 
 
 Cressicell J. said : " Pritchard, the lord, when he intended to resume 
 possession of the land in question, in 1835, from a feeling of kindness 
 to the incroacher, abstained from doing enough to resume his rights. 
 It is clear that he was out of possession, and that there was no tenancy 
 at will before the year 1835. The defendant was there as a trespasser. 
 The 10th and 11th sections of 3 & 4 Will. IV. c. 27, must be looked 
 at together. The latter throws light upon the former : it enacts that 
 ' No continual or other claim upon or near any land shall preserve any 
 right of making an entry or distress, or of bringing an action.' That 
 section treats the making an entry as something more than merely 
 being on the land, and claiming it. The 10th section seems to require 
 something more than merely formally going on the land. The making 
 an entry amounts to nothing, unless something is done to divest the 
 possession out of the tenant, and revest it in fact in the lord. We are 
 bound by the plain words of the statute." And see Doe clem. Bennet v. 
 2h(r?ier. 
 
 And ivhere a tenant encloses land, tvhether adjacent to, or distant from 
 the demised premises, and whether the land be part of a waste, or belong 
 to the landlord or a third person, it is a presumption of fact that the 
 inclosure is part of the holding, unless the tenant during the term does 
 some act disclaiming his landlord's title {Kingsmill v. Millard). 
 
 Incroachments by tenant on waste are presumably for the benefit of 
 the landlord (Earl of Lishurne v. David Davids, 1 L.R. C.P. 259). 
 
 The 8 & 9 Vict, c, 118, s. 123, which gives a right to the, Inclosure 
 Commissioners or their vahier to enter land to be inclosed or dealt with 
 under the Act, extends to land over which there is a right of common, 
 and which by an order for inclosure is to be retained by the owner, 
 freed from the right of common {Gruhh v. Broivn). 
 
 Upon a question ivJiether a piece of ivaste land Iging hetii'een a highivay 
 and the plaintiff's inclosed land, belonged to the plaintiff, or to the lord 
 of the manor, it was held in an action for breaking and entering the 
 close of the plaintiff, that grants by the lord of other slips of waste land 
 on either side of the same road, abutting on inclosed lands of the lord 
 himself and of other persons, were admissible for the purpose of showing 
 that the locus in quo was part of the waste of the manor without showing 
 continuity {Dendg v. Simpson). 
 
 One who has contracted ivith the owner of a close for the purchase of a
 
 TRESPASS MAINTAINABLE BY PURCHASER OP GROWING CROP. 347 
 
 growing crop of grass there, for the purpose of being mown and made into 
 hag bg the vendee, has such an exckisive possession of the close, though 
 for a limited purpose, that he may maintain trespass quare dausuni 
 fregit against any person entering the close, and taking the grass even 
 with the assent of the owner {Crosbg v. Wads worth). Where A. is seised 
 in fee of a close, upon which the burgesses of B. have a right during 
 a certain portion of the year, to depasture their cattle, and have during 
 that period exclusive possession of the close, A. may maintain trespass 
 against a party who during that period commits a trespass in the subsoil 
 by digging holes, but not against one who during that period merely 
 rides over the close {Cox v. Glue, and Mousleg v. Saint). With respect to 
 the latter point llaule J. said, "You might as well contend that a man 
 who owns a stratum of coal a thousand fathoms deep, can bring trespass 
 against another for walking over the surface of the land. That is this 
 case, differing only in degree." And per Curiam ; " The word 'dose' in 
 a declaration in trespass includes the subsoil as well as the surface " {ib.) 
 The possession of the surface mag be in one person, and the possession of 
 and the right to the subsoil, in another ; and such rights may be derived 
 by gi'ant ; or may be inferred from a long and uniform course of enjoy- 
 ment, which will be supposed to correspond with the interest created by 
 some grant " {ib.) In Comyn's Digest Common {H) it is said that a 
 commoner cannot maintain trespass for damage to the soil or grass ; for 
 he has no interest but to take the pasture by the mouths of his cattle. 
 One person may hold the prima tonsura of land as copyhold, and another 
 may have the soil and every other beneficial enjoyment of it as freehold ; 
 and as the word close imports in the abstract the interest in the soil, if 
 the defendant in trespass (who by his plea alleged the plaintiff's close 
 to be copyhold, holden under a certain manor of Hatfield Peverell, and 
 justified the trespass therein under a grant from the lord, and by com- 
 mand of the copyholder) only make out that he has a partial interest in 
 the land, such as the right primes tonsurce, the issue must be found 
 against him {Stammers v. Dixon). 
 
 Trespass does not lie for ths occupier of land against a partg, who 
 enters to retake goods wrongfully brought into the close by the plaintiff 
 (2 Roll. Abr. 565, 1. 54) ; and in trespass for breaking and entering 
 a yard, the defendant was allowed to plead that he entered for the 
 purpose of viewing a mare then in the stable in the yard, which had 
 recently been stolen from him ( Webb v. Beavan). A plea to a declara- 
 tion in trespass for breaking and entering the plaintiff's close, that the 
 defendant being possessed of certain goods, the plaintiff", without his 
 leave and against his will, took the goods and placed them on the 
 close in the declaration mentioned, wherefore the defendant made fresh
 
 MS ACTION BY REVERSIONER FOR TRESPASS. 
 
 pursuit, aud entered to retake the goods, is a good plea aud a 
 good justification of the entry on the plaintilf's close {Patrick v. 
 CoJericTc). 
 
 A rerersionor cannot maintain an action against a stranger for cuts of 
 trespass on the land unattended, with any other injury to the reversion 
 than as being committed in assertion of the claim of a right of way 
 {Baxter \. Taylor). And per FarJce J . : "No injury has been done to 
 the reversion. My notion is that there must be some destruction of 
 the land to enable the reversioner to maintain this action. No case 
 has ever gone so far as to constitute a simple trespass like this an 
 injury to the reversion. The case of Young v. Sj^encer is distinguish- 
 able from the present. The words of Lord Tenterden C.J, in that case 
 are to be considered with reference to the subject-matter of decision ; 
 and he is there stating what in his opinion are acts of wast/?." {il).) 
 
 An auctioneer put into possession of fixtures {spouting) attached to tlie 
 freehold, for tlie purpose of setting them, fJie purcliaser being hound to 
 detach and remove them, has not such a possession as will support tres- 
 pass de bonis asportatis for their wrongful removal {Davis v. Banks). 
 And per Parke B. : " There is no doubt as to the law, that an 
 auctioneer has a special property as bailee in goods and chattels which 
 are put into his possession for the purpose of sale, whether such goods 
 and chattels be in his own rooms or in the house of another person. 
 The case of Witti((ms v. Mitlington is a decision to that effect. On the 
 ground that he is a bailee, he may maintain trespass de bonis asjwrtatis, 
 or trover, for such chattels. But is he bailee of the roof of the house 
 which is part of the freehold ? He cannot be considered to have such 
 a possession of the house and fixtures as would entitle him to maintain 
 an action of trespass quare clausum f regit against a party, for an injury 
 to them ; and that is conceded to be so by the plaintiff's counsel. He 
 was only authorized at the time of his employment to sell the right of 
 detaching and removing the fixtures, and he had no possession of them 
 as materials, and he was not in possession of the freehold. But it was 
 said that on their severance they were bailed to him. That depends 
 upon the ciuestion, whether or not the real owner of the fixtures ever 
 intended that the plaintiff' should have possession of them after they 
 were detached. The evidence is that the lots were to be sold as 
 fixtures, which the purchaser was to detach and remove. The evi- 
 dence, therefore, is opposed to the plaintiff's view of the question. 
 The present action, therefore, bo far as it respects those fixtures, is no 
 more maintainable than an action of quare clausum f regit would be, if 
 brought for the removal of growing crops by an auctioneer who has been 
 directed to sell them."
 
 LEAVE AND LICENCE. 319 
 
 Plea of leave and licence in trespass. — In trespass, a plea of leave and 
 licence means leave and licence in fact, and a licence in law must be 
 specially pleaded, and semble it may be pleaded to part of a count if 
 severable and distinct : per Cockdurn C.J. {Moxon v. Savage.) 
 
 Leave and licence. — To a declaration in trespass, and for breaking 
 open a gate and lock, the defendant pleaded as an equitable defence, 
 that disputes having arisen between the plaintiff and the defendant 
 and other persons about a right of way, an agreement in writing was 
 entered into between the plaintiff and the defendant and the said other 
 persons, that without prejudice on either side to the question of right, 
 a way over the locus in quo should remain open for the passage of the 
 defendant and the said other persons, until the plaintiff's solicitor and 
 the defendant should come to a definite understanding as to the course 
 to be pursued in deciding the question in dispute ; that all things 
 happened necessary, &c., and that the alleged trespasses were com- 
 mitted in the use by the defendant of the said way, because the said 
 gate had been wrongfully and contrary to the said agreement placed 
 across it. It was held by the Court of Exchequer — 1st, that the plea 
 did not amount to a plea of leave and licence at common law, as the 
 locking of the gate was a revocation of the licence to use the way ; and 
 2ndly, that it was not good as an equitable plea, the circumstances 
 disclosed not being such as would in equity entitle the defendant . 
 to have the plaintiff restrained by an unconditional injunction from 
 prosecuting the action {Hyde v. Graham). 
 
 Reasonableness of a horse-^-acing custom. — To an action of trespass 
 qi(are clausi/m f regit, the defendant pleaded that from time immemorial, 
 on Ascension Day, horse races had been held, and of right ought to be 
 held on land in a certain extra-parochial place, and that there was a 
 custom for the freemen of the town of C to enter on the close for the 
 purpose of horse-racing ; and it was held on a demurrer to the plea and 
 the authority of Fitch v. RaivUngs and others (2 H. Bl. C. B. 393) and 
 Abbott V. Weeldy (1 Levinz, 176) that the custom was good and reason- 
 able. The Court of Exchequer distinguished this case ft'om Milli- 
 clmmp V. Johnson and Bell v. Wardell (Willis, 202), because the right to 
 go on the land in question was limited to a few days about the time of 
 Ascension Day or Holy Thursday, whereas in these cases the custom to 
 enter on land for the purpose of playing any rural sports or games was 
 held bad, as being too general and uncertain {Mounsey v. Ismay). 
 
 A trespasser may have a right of action for an injury sustained whilst 
 in the act of trespassing {Burnes Adx. v. Ward). And per 3faule J. : 
 " With respect to the case of Blyfh v. Topham, and Alderson B.'s 
 dictum in Jordin v. Crump, it must be observed that in those instances
 
 350 RIGHT OF ACTION BY TRESPASSER. 
 
 the existence of the pit in the waste or field adjoining the road is not 
 said to have been dangerous to the persons or cattle of those who 
 passed along the road, if ordinary caution were employed. In the 
 present case, the jury expressly found the way to have existed imme- 
 morially, and they must be taken to have found that the state of the 
 area made the way dangerous for those passing along it, and that the 
 deceased was using ordinary caution in the exercise of the right of way, 
 at the time the accident happened. ^Yith regard to the objection that 
 the deceased was a trespasser on the defendant's land at the time the 
 injury was sustained, it by no means follows from this circumstance 
 that the action cannot be maintained. A trespasser is liable to an 
 action for the injury which he does, but he does not forfeit his right 
 of action for an injury sustained. Thus in the case oi Bird v. Hulhrooh, 
 the plaintiif was a trespasser (and indeed a voluntary one), but he was 
 held entitled to maintain an action for an injury sustained, in conse- 
 quence of the wrongful act of the defendant, without any want of 
 ordinary caution on the part of the plaintiff, though it would not have 
 occurred if the plaintiff had not trespassed on the defendant's land. 
 This decision was approved of in Lynch v. Nurden, and also in Jordin 
 V. Crumby, in which the Court of Exchequer, though expressing a doubt 
 whether the act of the defendant in settiug a spring-gun was illegal, 
 agreed that if it was, the fact of- the plaintiff being a trespasser would 
 be no answer to the action." (/&.) 
 
 It was decided by the Court of Exchequer in Hardcastk Adz. v. South 
 Yorkshire Railway & River Don Gompayiy, in accordance with the 
 principle of the case of Blyth v. Topham, that ivhen the oivner of land 
 makes upon it an excavation, adjoininy a public iray, so that a person 
 walking upon it might, by making a false step, or being affected with a 
 sudden giddiness, or by the sudden starting of a horse, be thrown into 
 the excavation, the party making the excavation is liable for the conse- 
 quences ; but it is otherwise when the excavation is made at some 
 distance from the way, and the person falling into it would be a tres- 
 passer upon the land of the party making the excavation before he 
 reached it. And semble, the proper and true test of legal liability in 
 such cases is whether the excavation is substantially adjoining the 
 way, and these principles apply to actions brought under stat. 9 & 10 
 Vict. c. 93. 
 
 The authorities show that if a)i accident, such as the defendunt driving 
 his cart and horse against the plaintiff, resulted entirely from a superior 
 agency, that is a defence, and may be proved under the general issue ; 
 but a defence stating that there was no negligence on the part of the 
 defendaut, and that the plaintiff slipped from the kerb-stone just as the
 
 RIGHTS OF PUBLIC COMPANY. 351 
 
 cart was passing, and so got his leg under the wheel, cannot be proved 
 under that issue {Hall v. Fearnley). 
 
 It was decided by the Court of Common Pleas, on the authority of 
 Boyfield v. Porter, that tresjjasa does not lie against a surveyor of }dyh- 
 ivays for entering lands and cutting drains undw the powers of the 
 Highway Act, without tendering amends for the injury done {Peters v. 
 Clarson). The justices at Special Sessions are the only persons to 
 ascertain and settle the amount of damages to be paid, and the surveyor 
 is not bound to have the amount of damages ascertained within twenty- 
 one days of his committing the injury, {ih.) 
 
 Where a ivater-work company were empoiv&red by Act of Parliament 
 " to dig and hrealc up the soil, &c., of any of the roads, highways, foot- 
 ivays, &c.," and by a subsequent clause it was provided that they should 
 not enter upon the private lands and grounds of any person without 
 the consent of their owner, &c., the Court of Common Pleas held that a 
 footway across a field was not within the meaning of the Act (Scales v. 
 PicJcering). 
 
 The ownership acquired in land hy a ptiMc company, under their 
 compulsory powers for the purpose of their works, is a qualified owner- 
 ship, to be restricted to the purposes expressed in the act, those pur- 
 poses being the essence of the contract ; and therefore the landowner 
 in Bostock v, Noi^th Staffordshire Railway Company^ whose comfort and 
 enjoyment of the remainder of his estate is affected by the company 
 applying the ownership for other purposes not contemplated by the 
 act, had a perpetual injunction granted to her by Stuart V. C. to restrain 
 the use of the land for such purposes. Part of the plaintiff's estate had 
 been taken by the company to form a reservoir to supply their canal, 
 and for no other purpose ; whereas they had persisted in holding a 
 " grand fete or regatta" on the lake. The legal right of the plaintiff had 
 been aflBrmed {Erie J. diss) in a case which was argued before the Court 
 of Queen's Bench. 
 
 ^Mlere there were several adjacent closes called H, and the plea to 
 a declaration for seizing pigs was, that defendant was possessed of a 
 close named H, in which the pigs were eating, &c., and were taken 
 damacje feasant ; and the replication was that the defendant was not 
 possessed of the said close in the said plea mentioned, in which tlie pigs 
 were alleged to be eating, &c. ; and issue was taken thereon— it was 
 held that the defendant was bound to show that he was possessed of a 
 close, in which the pigs were eating, &c., and that it was not enough 
 for him to show his possession of a close named H {Botidy. Downton). 
 But a plea, justifying an alleged trespass as committed in exercise of a 
 right of way, is sufficiently certain, as to the premises in respect of
 
 35:J PLEA OF LIBERUM TEXEMENTUM. 
 
 which the way is claimed, if it describe them as " a close in the parish," 
 &c., "and county," &c., " called B, with certain lands thereunto ad- 
 joinmg ; and another close called M, and divers, to wit two, other 
 closes next adjoining thereunto ; " claiming a way from B to M and 
 back for the better use, occupation, &c., of B and the said lands ad- 
 joining thereto, and of M and the said adjoining closes respectively 
 {Holt V. Daw). 
 
 And per Lord CamphcU C.J. : " It appears with sufficient certainty 
 that there is but one way in question ; and the tenn'uii are specifically 
 described by name, as well as of the two closes in respect of which it is 
 claimed. The other lands and closes in respect of which it is claimed 
 are stated to be adjoining to those that are expressly named ; and if 
 they had been described by name, or by metes and bounds, the plain- 
 tiff would have derived little advantage from such particularity, as the 
 defendant was not ])0und to prove his right in respect of any but the 
 two closes named as the termini, and would have been entitled to the 
 verdict if he had proved his right in respect of them, though he had 
 failed as to all the others, as appears from Ricketts v. Salwey" 
 
 " In Stott V. Stott the defendant justified under a right of way in re- 
 spect of a certain messuage, and divers (to wit, 50) acres of laud. In 
 Simpson V. Lcwthivaite the defendant claimed the right of way in re- 
 spect of 100 acres of land contiguous and next adjoining to one of the 
 closes in which, &c. In Colchester v. Rol>erts the defendant justified 
 under a claim of a right of way in respect of a messuage, and divers 
 (to wit, three) closes of land near to the close in which, &c. There is, 
 therefore, abundant authority in the precedents for such a mode of 
 Dleadiuo- and no case was cited in point to show that such a form is 
 objectionable." 
 
 In trespass quare clausum fregit, the defendant is entitled to plead 
 liherum tenementim, together wdth a plea denying that the close ■ in 
 which, &c., is the plaintiflTs {Slocomhe v. Lijall). And per Parke B. : 
 " They do not necessarily relate to the same subject-matter of defence. 
 Under the plea that the close is not the plaintift^'s, he must prove him- 
 self in possession, and that is sufficient until the defendant shows a 
 better title • but the plea of liherum lenementum sets up the title of the 
 defendant. Under the denial that the close is the plaintiff's, both pos- 
 session and title may be in issue, which is not the case with liherum 
 tenementumJ' (ih.) As to new assignment see Bracegirdle v. Peacock, 
 Rohertson v. Gauntlett, Bowen v. Jenkin, Norman v. Wescomhe, 
 Brancker v. Molijneaax, and Hayling v. Oakey, and the review of 
 the older authorities laid down in the note to the case of Gree7ie v. 
 Jones.
 
 REMEDY FOR CONTINUING A BUILDING ON LAND. 353 
 
 Trespass is the proper remedy for wronjfullij conlinuim/ a hidhUng 
 on plaintiff's kind, for the erection of which plaintiff has ah-eady 
 recovered compensation ; and a recovery, witli satisfaction for erecting 
 it, does not operate as a purchase of the right to continue such erec- 
 tion. And hence where, as in Holmes v. Wilson, the trustees of a 
 turnpike road built butti-esses to support it on the land of the plaintiff, 
 w^ho sued them and their workmen in trespass for such erection, and 
 accepted money paid into Court in full satisfaction of the trespass, 
 it was held by the Court of Queen's Bench, that after notice to 
 defendants to remove the buttresses, and a refusal to do so, the plaintiff' 
 might bring another action of trespass against them for keeping and 
 continuing the buttresses on the land, to which the former recovery 
 was no bar. And per Lord Denman C.J. : " The former and the 
 present action are for different trespasses. The former was for erect- 
 ing the buttresses. This action is for continuing the buttresses so 
 erected. The continued use of the buttresses for the support of the 
 road under such circumstances was a fresh trespass." And so in 
 Boicijer v. Coolc, where the defendant was sued in trespass for placing 
 stumps and stakes on the plaintiff's land, and paid into Court 40s., 
 which the plaintiff took out in satisfaction of that trespass ; and the 
 plaintiff afterwards gave the defendant notice, that unless he removed 
 the stumps and stakes, a further action would be brought against him ; 
 it was held that the leaving the stumps and stakes on the land was a 
 new trespass, and that the plaintiff was entitled to full costs in an action 
 for their continuance after the notice, though he recovered less than 
 40s. ParJce B. had refused to certify that the trespass was wilful and 
 malicious under the 3 & 4 Vict. c. 24, s. 2, and said that the proper 
 mode of obtaining such costs was by entering a suggestion on the 
 record, under the 3rd section, that the trespass was committed after 
 notice. 
 
 And per Curiam.- "In Sherwin v. Sicindall, the judge clearly had 
 power to certify as he did under 3 & 4 Vict. c. 24, s. 2. In Daw v. 
 Hole the attention of the Court of Queen's Bench does not seem to 
 have been called to the effect of the 8 & 9 117//. III. c. 11, in con- 
 nection with the 22 & 23 Car. II. c. 9 : they appear to have thought 
 that the costs are given only where the judge certifies, not adverting to 
 the circumstance of the only statute depriving the plaintiff of costs in 
 these cases having been repealed. The next question is— was the trespass 
 in this case committed after notice ? That depends upon whether or 
 not the continuance of the stumps and stakes on the plaintiffs land, 
 after the notice to remove them, was a new trespass. The cases of 
 Hudson V. Nicholson and Holmes v, Wilson clearly show that it was.
 
 354 CERTIFICATE OF COSTS. 
 
 And ^jpr Cressurll J. : " Prima facie, the i^laintiff having recovered 
 damages is entitled to costs ; if he is not, it must be by virtue of soine 
 statutory enactment. It has been very properly admitted that the only 
 statute that can have the effect of depriving the plaintiff of costs in 
 this case, is the 3 & 4 Vict. c. 24. The 2nd section of that statute 
 enacts, that if the plaintiff, in any action of trespass, or of trespass on 
 the case, shall recover less damages than 40s., he shall be entitled to 
 no costs, unless the judge shall certify on the back of the record that 
 the action was really brought to try a right, or that the trespass or 
 grievance was wilful and malicious. Then comes the 3rd section, 
 which provides that nothing in that act shall extend to deprive any 
 plaintiff of costs in any action for a trespass over any lands, &c., in 
 respect of which a notice not to trespass thereon shall have been pre- 
 viously given to the defendant. If this 3rd section had enacted that the 
 plaintiff should not be deprived of costs, if it should appear at the trial 
 that a previous notice not to trespass had been given, there might 
 have been ground for contending that the judge must certify to entitle 
 the plaintiff to costs. But the notice is not required to appear at the 
 trial. The proper course clearly is to suggest the fact upon the record, 
 leaving the defendant to traverse it, if so advised." 
 
 The certificate to deprive the plaintiff of costs under 23 & 24 Vict. 
 c. 126, s. 34, where in an action for a wrong he recovers less than £5, 
 must negative not only the trespass being wilful and malicious, but 
 also the fact that the action was brought to try a right, and that it was 
 not fit to be brought. Andjoer WiUiams J. : "The case of Saunders 
 V, Kirwan'' (30 L. J. (N. S.) C.P. 351) applies to the negative that the 
 trespass was wilful and malicious, and the decision there is quite 
 correct, inasmuch as if the certificate negatives the trespass being 
 either wilful or malicious, it necessarily negatives its being both wilful 
 and malicious {Gooduuj v. Brifnull). 
 
 It is now perfectly settled that a man may he guilty of a nuisance in 
 erecting, or continuijig a huilding on the land of another. And it was 
 so held by the Court of Queen's Bench in Holmes v. Wilson, by the 
 Court of Exchequer in Thompson v. Gibson, and by the Court of 
 Common Pleas in Boivyer v. CooJc, and BattishiU v. Reed. And per 
 V. Williams J. : "Where an action has been brought for erecting and 
 leaving a building on the plaintiffs land, a fresh action will lie 
 for continuing it there ; and action after action may be brought 
 till it is removed. Whether this case falls within the principle of 
 Jlobnes v. Wilson, T will not undertake to say ; but assuming that it 
 docs, Holmes v. Wilson has been followed by Thompson v. Gihson ; 
 and Thompson v. Gibson and Bowycr v. Cook have established that
 
 KEMEDY FOR CONTINUANCE OF NUISANCE. 355 
 
 fresh actions may be brought as long as the nu'sance is continued " 
 {BattishiU v. Reed). And per Jervis C.J. : " It was for the jury to say 
 what damages the ]3laintiif was entitled to ; but as a principle of com- 
 putation, tiie diminution in the saleable value of the premises was not 
 the true criterion. Every day that the defendant continues the nuisance 
 he renders himself liable to another action. I think the jury did right 
 to give, as they generally do, nominal damages only in the first action ; 
 and if the defendant persists in continuing the nuisance, then they 
 may give such damages as will compel him to abate it, but not as was 
 insisted here, the difference between the original value of the premises 
 and their present diminished value " {id.). And ^^rr V, Williams J. : 
 " Where the action is for a nuisance in the defendant's own land, he 
 may always discontinue it ; but where it is for a trespass, in respect of 
 an act done in the plaintiff's land, he cannot enter to remove it without 
 committing another trespass (/&.). The rule suggested in Holmes 
 V, Wilson, and ThomiJson v. Gibson, is adopted by Professor Sedgwick 
 (see Sedgwick on Damages, 2nd edit. p. 144), where it is said, 'Every 
 continuance of a nuisance is held to be a fresh one, and therefore a 
 fresh action will lie,' " 
 
 In an action for a nuisance by the luryiing of briclrs near the house 
 of the plaintiff, the Court of Common Pleas decided (confirming the 
 ruling by B//les J.) that the judge may properly direct the jury that the 
 plaintiflF was not bound to show that the brick-burning was injurious 
 to health ; but that if it rendex'ed the enjoyment of his life and pro- 
 perty substantially uncomfortable, he was entitled to recover ; and that 
 the jury ought to take into consideration, as an element of the inquiry, 
 whether the brick-burning was carried on in a proper and convenient 
 place for that purpose (Hole v. Barloiv). 
 
 The Court rested their judgment on Com. Dig. " Nuisance," C, where 
 it is said, " An action does not lie for the reasonable use of any right, 
 although it be to the annoyance of another ; as if a butcher, brewer, 
 &c., use his trade in a convenient place, though it be to the annoyance 
 of his neighbour." Willes J. said, " Comyn lays it down that every 
 person has a right to fresh air ; but that right must be limited by this, 
 that those matters which must be done in ordinary life may be done." 
 Hence a work of reasonable necessity cannot be made the foundation of 
 an action for a nuisance, which is a limitation of the doctrine in Aldred's 
 case, 9 Rep., 57 " {ih.). 
 
 In Corhy v. Hill the facts were these : The defendant being about to 
 Imild, laid his materials (having received leave so to do) on a private 
 road leading to a county lunatic asylum, along which peisons had been 
 ficcustomed to pass by leave of the owners, and were likely to continue 
 
 A A 2
 
 356 MEASURE OF DAMAGES FOR REMOVING SOIL. 
 
 to jiass, so as to obstruct the road and make it dangerous to persons 
 using- it, and gave no notice by signal or otherwise. It was held by the 
 Court of Common Pleas that the defendant was liable to an action by 
 the plaintiff for the injury sustained by his horse, and senible it was not 
 necessary to aver in the declaration that the materials were so placed 
 by the defendant without the permission of the owners and occupiers of 
 the soil, as such allegation would raise an immaterial issue. And ^jer 
 Wi/ks J. : "A statement of the facts was sufficient to show that the 
 ]>laintiff had a remedy, because the defendant had no right to set a trap 
 for the plaintiff. A person coming on lands by licence has a right to 
 suppose that the person who gives the licence, and much more a person 
 wlio is a wrong-doer, will not do anything which will cause him an 
 injury. In this case I do not think that tlie defendant has shown a 
 licence to place the materials in the way he did." And per Williams J. : 
 " Suppose you have a piece of land, and give your neighbour leave to j)ut 
 his harrows upon it, and just before dusk he puts them the wrong way 
 ■upwards, and your friend conies to dine with you, and is damaged 
 thereby, will he not have a right of action against that man ? " On the 
 counsel objecting tliat according to Southcote v. Stanley he had not, his 
 Lordship observed, " The exception is the case of Southcote v. Stanley, 
 and that case stands entirely on the relation of host and guest, and is 
 founded on the proposition that a man who becomes a guest cannot 
 complain of the want of good appointments in the house in which he is 
 a guest." 
 
 In trespass for cutting into the plaintiff's close, and carrying away 
 the soil, the proper measure of damages is the value to the plaintiff of the 
 land removed, not the expense of restoring it to its original condition 
 {Jones V. Gooday). To a plea of the Statute of Limitations in an action 
 of trespass, or trespass on the case, the plaintiff will not be allowed to 
 reply as an equitable answer under sec. 85 of the Common Law Pro- 
 cedure Act, 1854, that the trespasses, &c., were under-ground, and had 
 been fraudulently concealed from the plaintiff till within six years before 
 suit {Hunter v. Gibbons). 
 
 With respect to giving acts of ownership in evidence in an action of 
 trespass, Parke B. observed in Jones v. Williams, " In ordinary cases to 
 prove his title to a close, the claimant may give in evidence any acts of 
 ownership in any part of the same inclosure ; for the ownership of one 
 part causes a reasonable inference that the other belongs to the same 
 person ; though it Ijy no means follows as a necessary consequence, for 
 different persons may have balks of land in the same inclosure ; but 
 this is a fact to be submitted to the jniy. So I apprehend the same 
 rule is a[.plicablc to a wood, which is nut inclosed by any fence ; if you
 
 EEASONABLE USE OF RIGHT OF WAY. 357 
 
 prove tlie cnttin.o- of tim])er in one part, T take that to l)e cyidcnce to 
 go to a jury to prove a right in the whole wood, although there should 
 be no fence or distinct boundary surrounding the whole ; and the case 
 of Stanley v. White, I conceive, is to be explained on this principle ; 
 there was a continuous belt of trees, and acts of ownership on one part 
 were held to be admissible to prove that the plaintiff was the owner of 
 another part, on which the trespass was committed. So I should apply 
 the same reasoning to a continuous hedge, though no doubt the defendant 
 might rebut the inference that the whole belonged to the same person, 
 by showing acts of ownership on his part along the same fence." 
 
 Where premises are demised or conveyed " with right of way thereto," 
 it may be a question for the jury what is a reasonable use of such right. 
 And so in Hawldm v. Carbines, which was an action in tresjmss for 
 breaking locks and chains, and the defendant justiiied under an alleged 
 right of way through a gateway, across which the chain was fixed, and 
 the right of way was expressed to be " through the gateway " of the 
 plaintiff (which gateway led to other premises of the plaintiff), and at 
 the time of the lease carts could come in to load and unload, and turn 
 round and go out again, but through alterations of the premises could 
 not now do so without slightly trenching upon the plaintiff's pre- 
 mises, the Court of Exchequer held that in the reasonable use of the 
 right of way the defendants had a right to do this ; and that what 
 was a reasonable user was for the jury. 
 
 It was decided by the Court of Common Pleas in Delctneij v. Fox, that 
 tJie rule hij which a tenant is estopped from denying the title of the land- 
 lord who let Mm into possession, is applicable in an action of trespass as 
 well as an ejectment, thus qualifying Pollock C.B.'s dictum in Watson 
 V. Lane, that the doctrine which prevents a party from denying his 
 landlord's title is peculiar to ejectment. On the termination of a lease, 
 the landlord cannot maintain trespass before entry. And so the cus- 
 tomary heir of a copyhold tenement cannot maintain trespass without 
 entry ; but after entry there is a relation back to the actual title, as 
 against a wrong-doer, and he may maintain an action for trespasses 
 committed prior to his entry (Barnett v. Earl of Guildford). 
 
 3Iere permissive tenant has no right to sue a claimant under owner for 
 forcible entry. — Where the plaintiff used land as a garden for more than 
 20 years, under permission fi-oin the owner to do so in order to keep 
 it from trespassers, the owner from time to time coming on to the land, 
 and giving directions as to the cutting of trees, &c., it was held by Erie 
 C.J., that he had not got a title so as to enal)le him to sue a claimant 
 under the owner for forcible entry. The learned judge observed, " It 
 may be taken that the plaintiff had a beneficial occupation for more than 20
 
 358 FORCIBLE ENTRY ON COMMON OF PASTURE. 
 
 yciirs, and if that will give liim a title I will give hini leave to move ; 
 but iu my opiuiou every time Cox the owner put his foot on the land, it was 
 so far iu his possession that the statute would begin to run from the 
 time he was last on it. Mr. Bovill moved in the Common Pleas, and 
 took nothing {Allen v. England). 
 
 Forcible entry in exercise of riijht of common of imsture. — To an action of 
 trespass for breaking and entering, and pulling down, and destroying 
 the plaintiff's house, whilst he and his family were therein, and assault- 
 ing the plaintiff, and by so pulling it down endangering the lives and 
 injuring the persons of the plaintiff' and his family, and ejecting them 
 therefrom, and taking the materials of the house ; the defendant as to 
 the breaking and entering and pulling down and destroying the house, 
 and taking the materials, justilied in the exercise of a right of common 
 of pasture over the land, on which the plea alleged the house was wrong- 
 fully erected, so that without pulling it down the defendant could not 
 enjoy the right of common of pastui'e. It was held by the majority of 
 the Court of Exchequer that the case was governed by Perry v. Fitzhoive 
 (8 Q. B. 757, 15 L. J. (N. S.), Q. B. 239), which is an authority that 
 a house cannot be pulled down, a man being in it, and that the plea did 
 not answer the action. The Court intimated that it was doubtful whe- 
 ther if the case had been before them for the first time they would have 
 concurred in the judgment pronounced by the Court of Queen's Bench 
 in Perry v. Fitzhowe, but that as the question was of no importance to 
 the parties in the cause, except as to the question of costs, it was better 
 to abiile by that decision. And per Wilde B., " Burling y. Read {11 
 Q. B. 890, and 19 L. J. (N. S.), Q. B. 291), and Perry v. Fitshowe estab- 
 blish a clear distinction between a man entering on his own land, and 
 an entry to abate a mere infringement of a right of common " {Jones v. 
 Jones). 
 
 Construction of the Malicious Trespass Act. — The occupier of land found 
 a man (employed by the owner) felling trees on to the land in such a way 
 as to damage growing barley ; and after again and again desiring him 
 to desist gave him into custody for wilfully damaging the barley. In 
 an action of trespass, the man recovered £20 ; and the judge having 
 declined to certify for costs, a suggestion was entered to deprive him 
 of ct>sts, on the ground that the defendant was acting in pursuance of 
 the Malicious Trespass Act (7 & 8 Geo. IV., c. 30, s. 22). BlacMurn 
 J. on the trial of the suggestion having left it to the jury to say whether 
 the defendant really and reasonal)ly believed he was acting according to 
 law, and they found in the affirmative, it was held that whether the 
 question was for the judge or the jury the verdict was right, and semhle 
 that it was rightly left to the jury {Norwood v. Pitt).
 
 DAMAGES FOR TRESPASS. 359 
 
 Estimating damnges for frcymss or ju'gligrnf act. — In an action fur a 
 wrong, whether arising out of trespass or a negligent act, the jury in 
 estimating the daniages may take into considei-ation all tlie circumstances 
 attending the committal of the wrong. In an action for wrongfully and 
 injuriously palling down a building adjoining the plaintiff's stable in a 
 negligent and improper manner, and with such a want of proper care, 
 that by reason thereof a piece of timber fell upon the plaintiff's stable 
 and destroyed the roof, and by reason of the defendant's negligence, 
 carelessness, and unskilfulness, part of the building fell upon and 
 injured the plaintiff's horse, and evidence was given showing that the 
 defendant had acted wilfully and with the object of forcing the plaintiff 
 to give up possession of the stable, it was held by the Court of Exche- 
 quer that the jury were properly directed, that if they thought the 
 defendant had acted with a high hand wilfully, and with the object of 
 getting the plaintiff out of possession, the damages might be higher 
 than if the injury was the result of pure negligence. And per Bramwell 
 B., " Suppose a man was to put an offensive mixen on his own lands, 
 opposite his neighbour's window, so as to be a nuisance, and for the 
 mere purpose of annoyance, do you conceive that the damage could 
 be limited to a mere pecuniary compensation in such a case as that 
 it may be said the act is wilful as it is here ? " And per Clumnd B,, 
 "My brother Bramwell has observed that in an action of trespass, 
 that is in some action of tort, you may give evidence of damage beyond 
 the actual injury sustained, in consequence of insulting circumstances 
 connected with the trespass ; and I can see no reason why that should 
 be limited to one kind of action of tort, by trespass, and should not 
 extend to an action which, in substance, is for negligence committed 
 under circumstances which might have supported an action of trespass " 
 {Emhlen v. Mgers). 
 
 Entry unlaivfal on day ivhen pUiintiff has ivholc of day to remove 
 crops. — In trespass for entering land and breaking gates (the interest of 
 the plaintiff under a contract for growing crops expiring on the day of 
 which the entry was made by the defendant, who was entitled to the 
 property), it was held by Wightman J. that as the plaintiff was entitled 
 to the whole of the day to remove his crops, the entry was unlawful, but 
 the damages must be nominal, and an amendment to include the crops 
 in the declaration was refused {Archer v. Sadler). 
 
 In an action against a railway company for rarefe^s/?// letting sparks 
 fly from their engines, so as to set the herbage, &c., on fire, Watson B. 
 ruled that it is not necessary to prove any specific negligence, and that 
 the compensation in sujh a case should be measured, as in that of an 
 unwilling vendor {Gibson v. South Eastern Railway Company).
 
 300 FIKE CAUSED BY SPARKS FROM LOCOMOTIVE. 
 
 But a railway company authorised by the Legislature to use locomotive 
 engines is not responsible for damage by fire occasioned by the sparks 
 fi'om an engine, provided they have taken every precaution wliicli 
 science can suggest to prevent injury from fire, and are not guilty of 
 negligence in the management of the engine ( Vaughan v. Taff Vale Rail- 
 vay Company), 29 L. J. N". S. Ex. 247, see also Frcinantte v. London 
 and Xorth Western Raihcaij Company. 
 
 It is a question of fact for a jury, and not of laiv for a judge, ivhether 
 the farmer in setting his stark of beans where it was jdared, or the railway 
 company who ignited it by tlie sparks which flew from their engine, had 
 been the most negligent {Aldridge v. Great Western Railway Company). 
 In Rex V. Pease it was held that no indictment for a nuisance lay 
 against a railway which ran five yards from a highway, for frightening 
 horses. 
 
 According to Vaughan v. Menlove, an action lies against a party for 
 so negligently constructing a hay-rick on the extremity of his land, tJiat 
 in consequence of its spontaneous ignition his neighbour'' s house is burnt 
 doivn. At the trial it appeared that the rick in question had been 
 made by the defendant near the boundary of his own premises ; that 
 the hay was in such a state when put together as to give rise to dis- 
 cussions on the probability of fire ; that though there were conflicting 
 opinions on the subject, yet during a period of five weeks the defendant 
 was repeatedly warned of his peril ; that his stock was insured ; and that 
 upon one occasion being advised to take the rick down, to avoid all 
 danger, he said " he would chance it." He made an aperture or chimney 
 in the rick ; but in spite, or perhaps in consequence, of this precaution, 
 the rick at length burst into flames, which communicated to the defen- 
 dant's barn and stables, and thence to the plaintiff's cottages, wliich 
 were entirely destroyed. The pleas were Not guilty, and that there 
 was no negligence ; and the ruling of Patleson J., who told the jury 
 that the question for them to consider was, whether the fire had been 
 occasioned by gross negligence on the part of the defendant ; adding 
 tliat he was bound to proceed with such reasonable caution as a prudent 
 man would have exercised under such circumstances — was upheld by 
 the Court of Common Pleas, and a new trial refused after a verdict for 
 the plaintiff. 
 
 In Tuhervill v. Stamp, which applied very closely to the present case 
 in principle, it was decided that if an occupier burns weeds so near to 
 tlu boundary of his own land that datruige ensues to the property of his 
 neighbour, he is liable to an action for the amount of injury done, 
 unless the accident were occasioned by a sudden blast which he could 
 not foresee.
 
 USING POISONED CORN. 861 
 
 Scars V. Lyons was an action of trespass for hroftlrijifi ilir plaintiff's 
 dose and lai/iag poisonM harlei/ upon it to dcstroij his poultry. The 
 defendant had strewn it botli on the plaintiff's premises and his own, 
 into which the fowls soraetiraes escaped, and several of them had died 
 in conseqnence. In summinir up Abbott C.J. told the jury that "It 
 had always been held that for trespass and entry into the house or 
 lands of the plaintiff, a jury might consider not only tho pecuniary 
 damage sustained by the plaintiff, but also the intention with which 
 the act had been done, whether for insult or injury;" and added, 
 " that they were not confined in this case to the mere damage resulting 
 from throwing poisoned barley on the land of the plaintiff, but might 
 consider also the object with which it was thrown, taking care at the 
 same time to guard their feelings against the impression likely to have 
 been made by the defendant's conduct," The plaintiff had a verdict 
 for £50. 
 
 Horses frightened by traction engine on highway. — It was held by 
 Erie C.J., that a plaintiff has a right to recover against the owner of 
 a traction engine used on a highway under 24 & 25 Vict. c. 70, if 
 he knew from his men or other persons, or from the nature of the 
 engine itself, that the engine was calculated by its noise and appear- 
 ance to frighten horses. The defendant has clearly no right to make 
 a profit at the expense of the security of the public {Watkins v. 
 Reddin). 
 
 Evidence of negligence necessary to entitle ijlaintiff to recover. — In an 
 action for an injury occasioned by defendant's negligent driving, the 
 plaintiff to warrant the judge in leaving the case to the jury, must 
 give proof of well-defined negligence on the part of the defendant ; and 
 where the evidence given is equally consistent with there having been 
 no negligence on the part of the defendant, as with there having been 
 negligence, it is not competent for the judge to leave it to the jury to 
 find either alternative ; such evidence must be taken as amounting to 
 no proof of negligence. Foot-passengers, in crossing a highway, are 
 bound to take due caution to avoid vehicles ; and the drivers of 
 vehicles are bound to take due caution to avoid foot-passengers. And 
 per Pollock C.B. : " To sustain an action for an injury caused by the 
 negligent driving of the defendant, the injury must have been caused 
 by the negligence of the defendant only, without the negligence of the 
 plaintiff contributing in any way to the accident " {Cotton v. Wood, 13 
 C. & K., 81). The mere happening of an accident is not sufl&cient 
 evidence of negligence to be left to the jury, but the plaintiff must 
 give some aflfirraative evidence of negligence on the j^art of the defen- 
 dant. Where, therefore, it was shown that the defendant was riding a
 
 36:2 XEGLTOENT RIDING OX HIGHWAY. 
 
 horse at a walk, wlieu the animal became restive, and rushing on to the 
 pavement knocked down and killed the husband of the plaintiff, but 
 the witnesses for the plaintitf also proved that the defendant was doing 
 his best to prevent the accident, it was held that this was no proof of 
 negligence ; that taking the evidence of the witnesses for the plaintiff 
 altogether, it was clear that the defendant was carried on to the pave- 
 ment against his will, and that there was therefore nothing to turn 
 the scale of evidence against the defendant, and to show that he was 
 responsible for the consequences of the accident, but qiucre whether on 
 an indictment for manslaughter the same presumption would be made 
 in favour of a prisoner as for the defendant in an action for death 
 caused by negligence {Hammnck v. White), 
 
 Xc(]ltgence in riding along a public highicay. — =The plaintiff was driving 
 a waggon with three horses along a highway, walking in the usual way 
 at the head of the leading horse, on his proper side of the road. The 
 defendant and his groom were riding at a foot's-pace (meeting the 
 waggon on the wrong side) when, just as he passed the plaintiff, the 
 groom touched his horse with a spur and he kicked out, and struck the 
 plaintiff. It was held by the Court of Common Bench that the act of 
 using the spur when so near to the plaintiff, was such an improper act 
 on the part of the groom as to justify the jury in finding the defendant 
 to have been guilty of negligence {North v. Smith). 
 
 Kuisance hg hricJc-hurning. — Where a man by an act on his own land, 
 such as burning bricks, causes so much annoyance to another in the 
 enjoyment of a neighbouring tenement as to amount ]»-imd facie to a 
 cause of action, it is no answer that the act was done in a proper and 
 convenient spot, and was a reasonable use of the land, The fitness of 
 the locality does not prevent the carrying on of an offensive though 
 lawful trade from behig an actionable nuisance, but whenever, taking 
 all the circumstances into consideration, including the nature and ex- 
 tent of the plaintiff's enjoyment before the acts complained of, the 
 annoyance is sufficiently great to amount to a nuisance, an action will 
 lie whatever the locality may be, and the decision of the Queen's Bench 
 was overruled by Erie C.J,, Williams J., Bramivell, B., Keating J., 
 and Wilde B. ; Pollock C.B. diss. Thus Hole v. Barlow is overruled, 
 the case upon which the Queen's Bench grounded their judgment 
 {Bamford v. Turnhg). Without expressly overruling Hole v. Barlow, 
 Stuart V.S,, had decided to the same effect in Beardmore v. Treadwell. 
 
 Onus on defendant to show that trade is carried on in a reasonable 
 and proi)er nuinner. — The carrying on a lawful trade in the usual man- 
 ner is not necessarily the canying it on in a reasonable and proper 
 manner, and where to an action for canning on a trade in such a
 
 NOTICE TO TRESPASSERS. 363 
 
 manner as to cause injury to the plaintiff, the defendant rehes for a 
 defence upon the fact of the trade being carried on in a reasonable and 
 proper manner, the onus of proving that it is so carried on is on the 
 defendant, and not on the plaintiff of showing that it is not so carried 
 on, and the case does not come within the principle enunciated in 
 Hole V. Barlow (4 C. B. (N. S.) 437, 27 L. J. (N. S.), C. P. 207), {The 
 StocTcjJort Waterivorks ConijKimj v. Potter and Others). 
 
 In Wanstead Local Board of Health (appt.) v. Hill {resp.) it was 
 decided by the Court of Common Pleas that brick-maldng is not an 
 offensive or noxious trade or business within sec. G4 of the Public 
 Health Act (11 & 12 Vict. c. 63). 
 
 No notice is required by the 1 & 2 Will. IV. c. 32, under which 
 trespassers may be punished if in pursuit of game, on conviction before 
 a justice of the peace. Notice for an ordinary trespass must be served 
 either verbally or in writing, and should come from the tenant of the 
 particular parcel of land on which the trespass is committed. Game- 
 keepers or other persons deputed to do so may serve a notice, but they 
 must name the occupier as giving them orders. The form of notice 
 should be as follows : 
 
 "■ To A. B., residing at , in the parish of , 
 
 county of . I do Jterely give you notice not to come into or 
 
 upon any of the lands or Woods occupied hy me in the parish of , 
 
 and commonly known as the farm or woods of ; and in case 
 
 of your so doing I shall j^'oceed against you as a ivilful trespasser. 
 
 " Witness my hand this day of , 18 . A. D." 
 
 The provisions against trespassers in the above act do ?iof apply to any 
 person hunting or coursing upt)n any lands with hounds or greyhounds^ 
 and being in fresh pursuit of any deer, hare, or fox already started upon 
 any other land. 
 
 A 2)erson who causes the apprehension of another for a malicious 
 trespass to property, of which the former is the reversioner only, is 
 entitled to notice of action under the Malicious Trespass Act, 7 & 8 
 Geo. IV. c. 30 (which repeals 1 Geo. IV. c. 56), if he causes such appre- 
 hension under the hoimfide belief that he is acting in pursuance of the 
 statute {Hum v. Thornhorough). And per ParJce B. : " The defendant 
 was entitled to notice of action provided he Ijona fide believed that he 
 was acting in pursuance of the statute ; or according to the cases in 
 the Court of Queen's Bench, if he bona fide so believed, and had 
 reasonable ground for that belief. It was decided by the case of Hughes 
 V. BucJckcnd, that the protection afforded by the statute is not to be
 
 304 AEEEST WHEN JUSTIFIABLE. 
 
 strictly confined to the owner of the property injured, but is extended 
 to all persons who have a hona fide belief that they fill the character 
 mentioned in the statute, and act bona fide under that belief. Most of 
 the authorities were considered in Hvyhes y. BucMcmd, where the ser- 
 vants of the owner of a fishery, lona fide believing the plaintiff to be 
 fishing within the boundary of their master's fishery, caused him to be 
 apprehended, although in fact he was not within the boundary. The 
 same rule was laid down in Beechci/ \. Sides and Rtidd \. Scott ; and 
 there is no doubt that those decisions are correct, for no benefit would 
 be conferred by the statue if it were to be confined to those persons 
 only who have the legal power to an-est. The only apparent difficulty 
 in the present case arose out of Parrhujton v. Moore, to which refer- 
 ence was made in the course of the argument ; but that case, on a 
 closer inspection, has no bearing whatever upon the present. The 
 only question there was, whether the defendant was jiist/fied in arrest- 
 ing the plaintiff, who was in'hnCi facie a trespasser, but who, it appeared, 
 had acted under the bona fide belief that he had a right to do what he 
 did : and the Court there held that the defendant was not warranted in 
 arresting him. That distinguishes that case from the present, and 
 leaves us to the other authorities, and the later case of Hughes v. Buck- 
 land leaves no doubt upon the matter. These observations do not 
 apply to justices, as in such case the protection is only given nomi- 
 natim to those who actually fill that character ; and the same with 
 respect to certain cases of trustees and commissioners ; but by the 
 present Act, this protection is granted to every person who, when he 
 commits the trespass complained of, acts under the hona fide belief that 
 he is acting in pursuance of the statute." 
 
 In Thomas (appt.) v. Evans (resp.), the appellant was convicted for 
 fishing for salmon with a net, the meshes of which were less than 2\ 
 inches broad. The net in question had its meshes H inches broad 
 from knot to knot. Statute 1 EUz. c. 17, s. 3, enacts that no one shall 
 take fish as therein mentioned, " but only with net or trammel, whereof 
 the mesh shall be 2\ inches broad," and does not describe what is the 
 meaning of the word " mesh" ; while stat. 3 Jac. I. c. 12, s. 2, which 
 speaks of a mesh of 3 inches, describes it as " 1|^ inches from knot to 
 knot." The Court of Queen's Bench held that the conviction was 
 right ; and that the meaning of the word " mesh " in stat, 1 Eliz. c. 17, 
 8. 3, is that every space between the threads of the net should be 2i 
 inches from one thread to the opposite thread, and that the superficial 
 area which bounded each mesh should be 2^ inches at least. 
 
 It has been held that a person may justify trespass in following a fox 
 with hounds over the grounds of another, if he do no more than is neces-
 
 FOLLOWERS OF HOUNDS TllESPASSERS. 365 
 
 sary to kill the fox {Oimdry v. Fdtkam). So in PopMm (162) it was 
 adjudged that a man may start a fox on his own, and hunt him 
 into another man's land, because it is " a noysom creature to the com- 
 monwealth." 
 
 But in the case of the Earl of Essex v. Cajwl, Lord EUenhoroufjh 
 C.J. denied the authority of Gimdrij v. FeWiam, and ruled i\\Qi persons 
 hunting for their own amuseinent over the lands of another are trespassers, 
 and may he ivarned off ; and the plaintiff will have full costs, though 
 the jury do not give 40s. damages. His Lordship said : " The de- 
 fendant stated, in his plea, that the trespass was not committed for the 
 purpose of diversion and amusement of the chase merely, but as the 
 only way and means of killing and destroying the fox. Now if you 
 were to put it upon this question, which was the principal motive ? 
 Can any man of common sense hesitate in saying that the principal 
 motive and inducement was, not the killing of vermin, but the enjoy- 
 ment of the sport and diversion of the chase. And we cannot make a 
 new law to suit the pleasures and amusements of those gentlemen 
 who choose to hunt for their own diversion. These pleasures are to 
 be taken only where there is the consent of those who are likely to be 
 injured by them, and they must be necessarily subservient to the con- 
 sent of others. There may be such a public nuisance by a noxious 
 animal as may justify the running him to his earth, but then you can- 
 not justify the digging for him afterwards. That has been ascertained 
 and settled by the law. But even if an animal may be pursued with 
 dogs, it does not follow that fifty or sixty people have a right to follow 
 the dogs, and trespass on other people's lands." His Lordship also 
 ruled in Hame v. Oldacre, which was an action of trespass against the 
 huntsman of the Berkeley Hunc, that damages might be recovered, 
 not only for the mischief immediately occasioned by the defendant 
 himself, but also for that done by the concourse of people who accom- 
 panied him. 
 
 TJie rule as to hunting trespasses was made still more stringent 
 in Baker v. Berkeley, where the plaintiff had £100 damages. The 
 defendant had received notice not to trespass on the plaintilf s land. 
 Some time after, his field went, and did damage to the amount of £23, 
 while he rode along a road to avoid it. The stag ran into a barn 
 followed by six couple of hounds, where it was worried ; and the 
 defendant, who was not allowed to go into the barn to rescue it, gave 
 the plaintiff a blow. Lord Tenterden C.J. ruled "that if a gentleman 
 sends out his hounds and servants, and invites other gentlemen to hunt 
 with him, although he does not himself go on the lands of another, but 
 those other gentlemen do, he is answerable for tlie trespass they may
 
 3G6 EULE AS TO HUNTING TRESPASSES. 
 
 commit in so doing, unless he distinctly desires them not to go on 
 those lands ; and if (as in the present case) he does not so desire them, 
 lie is answerable, in point of law, for the damage that they do. With 
 regard to the defendant's attempt to go into the plaintiff's barn, it is 
 clear that the plaintiflFhad a right to refuse any person's going into it, 
 if he chose to do so, Whether it might be discreet in him is another 
 thing ; but undoubtedly he had a right to say tliat they should not go 
 into his barn, and if they did so they are trespassers." 
 
 And so it was ruled by Lawrance J., in the case of H'dl v. Walker, 
 that where a person goes out sport inrj ivith Ms friends, and ivilfidlij teads 
 them on to another's land, he is equally guilty of a trespass, although 
 he may remain off the laud whilst his friends go on it, as if he had 
 entered himself or sent his dog. Here the defendant Walker and 
 several otlier gentlemen being out sporting, attended by tlie other 
 defendant (Walker's servant), two of the party went into the Withy 
 Bed, and shot several times, the rest remaining in the adjoining high- 
 road. As the pheasants rose very fast, the defendant ordered his servant 
 to go and fetch his dog out, which was done. The two shooters swore 
 that they only entered the Withy Bed, and that the defendants held 
 the horses outside, and did not even let Walker's dogs enter. On 
 cross-examination, it appeared that Walker having had notice to 
 keep off the land, before the party came to the Withy Bed, told the 
 shooters that he would show them where jjlenty of game was to be 
 found ; and he took them to the plaintiffs close, and pointed that out 
 as the place. But^w Alderson B. : " If I give a man leave to go on 
 a field over which I have no right, and he goes, that will not make me 
 a trespasser; but if I desire him to go and do it. and then he does it, 
 that is a doing of it by my authority, which is quite a different thing, 
 and I should be liable as a joint trespasser. An order to go on land, 
 in spite of the owner, is a great deal more than leave and licence, it is 
 an authority " {Robinson v. Yaia/ltion). 
 
 And the Court of Queen's Bench also held in Merest v. , that 
 
 £.500 were not excessive damages for a tresjxiss in siiorting, persevered 
 in defiance of notice, and accompanied with offensive language. The 
 defendant (who had been sporting) left his carriage on the road, and 
 told the plaintiff, witli an oath, that he would slioot with his party in 
 spite of his notice ; fired several times at the birds, which the plaintiff 
 found, and proposed to borrow shot of him when he had exhausted his 
 own belt, besides threatening, in his capacity of magistrate, to commit 
 him, and defying him to bring an action. Heath J. cited a case where 
 £r)00 was given for merely knocking a man's hat off And it is no 
 reason for changing the venue, in an indictment for a supposed con-
 
 PKOPERTY IN GAME. 367 
 
 spiracij to dpstroij foxes and otJicr vermin, that the gentry of the county 
 (Cheshire) in which tlie indictment was found are addicted to fox-hunting 
 {Rex V. King). 
 
 In the case of Sutton v. Moody, it was said by Holt C.J. tliat " If A. 
 start a hare in tJie ground of B., and hunt and kill it there, the inoferty 
 contimies all IM lohile in B. ; but if A. start a hare in the ground of B., 
 and hunt it into the ground of C, and kill it there, the property is in A. 
 the hunter ; but A. is liahle to an action of trespass for himting in the 
 grounds as well of B, as ofCP The latter part of this dictum was relied 
 upon for the plaintiff in Churchward v, Studdy, which was an action 
 of trespass for carrying away a dead hare. The plaintiff had part 
 management of the hounds, and was hunting them, when they started 
 a hare in a third person's grounds, and followed her into defendant's 
 grounds, where she was seized, quite spent, by one of the dogs between 
 the legs of a labourer, who took her up alive ; and she was killed by 
 the defendant. The plaintiff demanded the hare ; and the labourer 
 said he had taken it up not for his own use, but in aid of the hunters ; 
 but the defendant refused to give it up. Lord Ellenhorough C.J. con- 
 sidered " that the plaintiff, through the agency of his dogs, had reduced 
 the hare into his possession : that makes an end of the question, even 
 though the labourer had first taken hold of it before it was actually 
 caught by the plaintiff's dogs ; yet it now appears that he took it for 
 the benefit of the hunters, as an associate of them, which is the same as 
 if it had been taken by one of the dogs. If, indeed, he had taken it up 
 for the defendant before it was caught by the dogs, that would have 
 been different ; or even if he had taken it as an indifferent person in 
 the nature of a stake-holder." 
 
 No actio7i iti ge)ieral lies for an involuntary trespass ,- and it is laid 
 down in 2 Eoll. Ab. 566 pi. 1, that if cattle in passage on the highway 
 eat herbs or corn raptim et sparsim against the will of the owner, it will 
 excuse the trespass. So in Millen v. Frandrye, where sheep trespassed 
 on a neighbour's land, and he drove them out with a dog, it was held 
 that trespass could not be brought. If a person goes along a footpath, 
 and his dog happens to escape from him, and run into a paddock, and 
 pull down a deer against his will, it is no trespass {Beckwith v. Sluir- 
 dike). kni^ij^Pf Parke J., a dog jumping into a field without the consent 
 of its master is not a trespass for which an action will lie {Brown v. 
 Giles). A plea to an action for trespass for killing the plaintiffs dog 
 cannot justify the act by stating that the lord of the manor was pos- 
 sessed of a close, and that the defendant, as his gamekeeper, killed the 
 dog, when running after liares in that close, for the preservation of the 
 hares ; such plea not even stating that it was necessary to kill the doo-
 
 308 DOG DAMAGE FEASANT. 
 
 for the preservation of the hares, nor that it was tlie dog of an unquali- 
 fied person {Vire v. Lord Caicdor). But it was held by Taunton J., in 
 Protheroe v. Mathews, which his Lordship (who mentioned Wadhurst v. 
 Damme and Barrington v. Turner as being in point) considered to be 
 very distinguishable from Yere v. Lord Cawdor, that the servant of the 
 ou'tier of an ancient 2MrJc may justify shootiny a day that is chasiny the 
 deer, although the dog may not have been chasing deer at the moment 
 when he was shot, if the chasing of the deer and the shooting of the 
 dog were all one and the same transaction, but that if the chasing was 
 at an end, and the dog would not have recommenced, the plaintiff ought 
 to have a verdict, which he had for one farthing. 
 
 AVhere it was replied, in an action of trespass for taking plaintiff's 
 dog as a distress damaye feasant in a close, that the dog, when taken, 
 was in the actual possession of, and under the care of, and being used 
 by the plaintiff's son and servant, it was held by the Court of Quean's 
 Bench that the averments in the replication were insufficient as applied 
 to a dog, to show such user of it as exempted it from seizure {Bunch 
 V. Kenninytun). And 2)er Pattcson J. : " The averments in the replica- 
 tion would be satisfied by proof that the dog was wiihin sound of 
 Bunch's whistle, and that Bunch was out of sight." 
 
 A yamelcceper authorised to seize the doys of unquaUfied persons sporting 
 on a manor, by deputation given hefore stat. 1 & 2 Will. IV. c. 32, and 
 not renewed, cannot justify seizing the dogs of uncertificated persons 
 committing such trespass, since the passing of the Act {Lidster v. 
 Barrow). Nor is he entitled to notice of action under sec. 47 of the 
 statute, on the ground that he bond fide supposed himself to be acting 
 in pursuance of the statute {it).). The Court of Queen's Bench con- 
 sidered themselves bound by the case of Bush v. Green, where the Court 
 of Common Pleas held that a gamekeeper acting under a deputation 
 granted and registered previously to the 1st of November, 1831, when 
 the Act 1 & 2 Will. IV. c. 32, came in force, was not entitled to notice 
 of action, or to give all matters in evidence under the generah issue. 
 knUper Abbot C.J., The 2nd section of 22 & 23 Car. II. c. 25 (which 
 was one of the twenty-seven game acts repealed by the above) contains 
 no prohibition against keeping or using hounds, and therefore the 
 gamekeeper of a lord of the manor is not authorized by his deputation 
 to seize them {Grajit v. Hulton). And in Hooher v. Wilkes, it was held 
 that a hound was not within the statute of 5 A^ine, c. 14. 
 
 I'he clutrye of talriny yame without a certificate under 1 & 2 Will. IV. 
 c. 32, 8. 23, is a criminal proceeding for an offence punishable on 
 summary conviction, within 14 & 15 Vict. c. 99, s. 3, and therefore a 
 person so churyed was held by the Court of Queen's Bench as not compietent
 
 NIGHT POACHING. 309 
 
 to give ovidmco for Jdniself {Cattell, a]ipellant, v. Treson, respondent). And 
 2)er Crompfon J. : " It has been said that if an action of trespass were 
 brought the defendant might be a witness, but that is not the same 
 thing ; the action is for damages to the plaintiff and to the land, 
 but this proceeding is a punishment for taking game, and the penalty 
 goes to the poor. Again, consider the absurdity of i3utting a poacher into 
 the box and compelling him to answer so as to criminate himself" {lb.) 
 
 Stat. 9 Geo. IV. c. f!9, s. 1, gives a summary conviction if any person 
 " shall by night unlawfully enter or be in " any land, whether open or 
 enclosed, with any gun, net, &c., " for the purpose of taking or destroy- 
 ing game or rabbits ; " but the conviction under sec. 1, in Fletcher v. 
 Calthrop, setting forth that one Fletcher did by night "unlawfully enter 
 certain enclosed land " " with a net for the purpose of taking game, to 
 wit partridges and jjheasants contrary to the form," &c., was held bad for 
 not stating the intent to be to take, game there. But in the case of Reg. 
 V. Western, 1 L. R. C. C. 122, it was held that an information under this 
 statute is good though it does not allege that the entry was for the pur- 
 pose of taking game there. 
 
 In Reg. v. Whitaker, it was held by seven judges out of twelve, ParTce 
 B., Pattoson J., Rolfr B., Cresswell J., and Piatt B. diss., that under the 
 9 th section of 9 Geo. IV. c. 69, if several persons are indicted for entering 
 enclosed land hg night, armed for the purpose of talcing game, it is not ne- 
 cessary to pi-ove that all entered the enclosed land; it is enough if some 
 are proved to have entered the land, and the rest are shown to have been 
 engaged with them in a common object, and to have been near enough 
 to render assistance. Sending on a dog, to drive hares into a net set in 
 the fence, was ruled by Patteson J. not to be an entering of the land 
 within this section {Reg. v. NicMess). If persons to the number of 
 three or more are together in one party ai'med by night in any land for 
 the purpose of destroying game there, and the land consists of several 
 closes, and one of such persons be in one close, and another in a 
 different close of the land, they may be convicted under the above 
 section ; and the conviction will not be affected by the circumstance 
 that one of the closes is an enclosed field, and another an open waste, 
 and that each is in the occupation of different tenants {Reg. v. Uezzell). 
 And^er ParTce B. : " The words 'open or inclosed' lands were inserted 
 to prevent parties from supposing that they might destroy game on 
 waste land with impunity " («'&.). 
 
 To constitute the offence of trespassing upon land in search or pursuit 
 of game under 1 & 2 Will. IV. c. 32, s. 30 (which enacts that if any 
 person shall commit any trespass by entering or being in the daytime 
 upon any land in search of or pursuit of game, or woodcocks, snipes,
 
 370 SHOOTING PHEASANT ON HIGHWAY. 
 
 quails, landrails, or conies, such person shall on conviction thereof be- 
 fore a justice of the peace, forfeit and pay a sum of money not exceed- 
 ing £5, together with the costs of the conviction), there must be a 
 bodily ''entering or being" of the person upon the land, upon which 
 the trespass is alleged to have taken place : and there may he a trespass 
 u'iihin ihe act, t/ioiiz/h at the time the person be upon a highway. Where, 
 therefore, the appellant, whilst on a highway carrying a gun, waved his 
 dog into a cover on one side of it, and flushed a pheasant, at which he 
 fired as it crossed the highway, it was held that he was properly con- 
 victed under the above statute, of a trespass in search of game, upon 
 land in the possession and occupation of one George Bo^^7er, who was 
 lord of the manor, and the owner of the land on both sides of the high- 
 way {Reg. V. Pratt). 
 
 Evidence that a party has exercised the right of kitting game for seven 
 years iipoi laiid, is prima facie evidence of the right under 1 & 2 Wilt. 
 IV. c. 32, B. 36, which makes it lawful for any person having the right 
 of killing the game upon any land, by virtue of any reservation or 
 otherwise, or for the occupier of such land (whether there shall or shall 
 not be any such right by reservation or otherwise), or for any game- 
 keeper or servant of either of them, or for any officer of Her Majesty's 
 forest, park, chase, or warren, or for any person acting by the order and 
 in aid of any of the said several persons, to seize game (if not imme- 
 diately given up on demand) recently killed, found in the possession of 
 any person upon such land, by day or by night, in search or pursuit of 
 game {Beg. v. }Vatl). Under the stat. 9 Geo. IV. c. 69, s. 2, the servant 
 of a person being neither the owner nor occupier of the wood, nor 
 the lord of the manor, but having only permission to preserve the game 
 there, has no authority to apprehend poachers {Rex v. Addis). Section 
 4 of this statute requires pn^o send ions under it to t)e comme7iced within a 
 year, and the provision is complied with if the information is laid before 
 the magistrates, and the prisoners are apprehended within the year, 
 although the indictment is not preferred till after the year has elapsed 
 {Reg. V. BrooTcs & Git)son). 
 
 A person having only a right of shooting over land, has no right to 
 empower keepers to apprehend trespassers in search of game ; and on 
 their resisting with no greater violence than is used by the keepers, 
 they will not be liable for an assault ; but if the trespass is in the night 
 tliey may be indicted for night-poaching {Reg. v. Wood) 1 F. & F. 470 ; 
 and a gamekeeper appointed by a person who had only permission to 
 shoot, trying to take a gun ft"om a poacher, and in the scuffle causing a 
 gun to go off which killed a poacher, was held by Lord Campbeli C.J. 
 guilty of manslaughter {Reg. v. Wateg) F. & F. 528.
 
 OCCUPIER OF LAND NEED NOT PROVE A NEGATIVE. 371 
 
 It was held by the Court of Criminal Appeal that it is not necessary 
 OH the part of the prosecution to call the occupier or the oivner of the land to 
 p>rove that the persons charged ivere not vpon the land hy their permission 
 {Reg. V. Wood). This case was reserved by Bramivell B., in conse- 
 quence of a decision of Martin B., in Reg. v. Edge, to the effect that in 
 a case of night poaching, the landlord or occupier of the land, whichever 
 was entitled to the game, ought to be called to show that the prisoner 
 was not on the land by their permission. Jervis C.J. said : " There 
 must have been something more in that case. If men are on land at 
 night armed and doing violence, is the occupier to be called to deny that 
 he had allowed them a day's shooting ? " And it is sufficient to allege 
 in the indictment, that the land is land "of and belonging to J." without 
 stating it to be in the occupation of J. {Reg. v. Riley). 
 
 In Cox V. Reid & Another, the defendant, Eeid, who rented some land 
 in Surrey, discovered the plaintiff shooting on the land, and warned him 
 off. The latter handed his game-certificate (which the defendant desig- 
 nated as " all humbug," on account of some seeming insufficiency in the 
 plaintiff's description), when asked for his address, but refused to give 
 up his gun or quit the premises, and the defendant with the assistance 
 of his gamekeeper, the other defendant, took away his gun, removed him 
 hy force into a lane, and detained him there (after a scuffle, in which he 
 was thrown down and injured) till a policeman came. Ultimately he 
 was not given into charge, but summoned for trespass, and convicted. 
 He then brought an action of trespass for assaulting and wounding, 
 &c., to which the defendants pleaded Not guilty by statute, relying on 
 1 & 2 Will. IV. c. 32, s. 31, and Parke B. left it to the jury to say, 
 whether or not the defendants at the time of the alleged assault and 
 imprisonment acted under the belief that they had authority under the 
 provisions of that section, and if so, whether they had reasonable 
 grounds for so believing. The jury found that the defendants had no 
 right to take away the gun, but the defendants thought they were act- 
 ing in pursuance of the statute ; and his lordship then directed a non- 
 suit, on the ground that the plaintiff had not given a month's notice of 
 trial in compliance with sec. 47. It was held that the question of rea- 
 sonable or not reasonable belief in this case was a question simply whe- 
 ther there was such bona fides as entitled the defendants to notice of 
 action, and that the case was properly left to the juiy, and that the 
 defendants were entitled to notice whether the trespass was justifiable 
 under the statute or not. 
 
 Reg. V. George Prestneg, which was an indictment for felonious cutting 
 and 'Wounding, turned upon the construction of the same section. The 
 prosecutor found the prisoner in a field of his, with another man, 
 
 B B 2
 
 372 FORCIBLE RESCUE ILLEGAL. 
 
 ferreting rabbits. TTis dog had slightly damaged the hedge in two or 
 three places, by breaking through it. The defendant ran away, and 
 was caught after a struggle, and would not tell his name. It was 
 submitted that the charge could not be sustained for more than a 
 mere assault, as the apprehension and detainer of the prisoner were 
 both unlawful, for that by stat. 1 & 2 Will. TV. c. 32, s. 31, before 
 apprehending the prisoner, the prosecutor was bound to ask his Chris- 
 tian name, surname, and place of abode, and also to require him to 
 quit the land. PavTce, B. held that damage done fn a fence hj a jwacJiefs 
 dog in jjursuif of game is not a " malicious '' injury within the meaning 
 of stat. 7 & 8 Geo. IV. c. 30, s. 23 ; and 'that to justify the appre- 
 hension of an offender under 1 efe 2 Will IV. c. 32, s. 31, it is only 
 necessary that he should have been made to understand by the person 
 authorised under that section, that he is requio'ed to tell his Christian 
 name, surname, and place of abode, and that he should have refused to 
 co77i])ly with such requisition, and that it is not necessary that he should 
 have been required both to quit the land and also to tell his name. 
 The prisoner was found guilty upon the first count, which alleged an 
 intent to prevent his lawful apprehension and detainer. 
 
 The forcihle rescue of a person from unlauful custody is illegal. And 
 so it was held in Beg. v. Almey and Spencer, where the prisoners were 
 charged with feloniously assaulting and wounding one James Rayson, 
 a gamekeeper, who saw them with one Kenney and four others beat- 
 ing for game. Kenney had a gun, and on being asked his name refused 
 to give it, and was taken into custody, and the gamekeeper was 
 wounded by the prisoners in their attempt to rescue him. It was 
 contended for the prisoners that the apprehension was unlawful, inas- 
 much as before the apprehension Kenney had only refused to give his 
 name, and had not refused to go off* the land, and that the prisoners 
 were therefore justified in using violence to effect his rescue. But 
 Erie J. (after consulting Cresswell J.) considered that Kenney himself 
 might perhaps have lawfully resisted his apprehension, but that the 
 prisoners had no right to take part in that resistance, and overruled 
 the objection. 
 
 A conviction of sevei'al p)ersons for tresjMssing in pursuit of game in 
 the daytime, under 1 & 2 Will. IV., c. 32, s, 30, was drawn up, includ- 
 ing them all in one conviction, and adjudicating " each of them ; " 
 the said C, B, W, and S, so making default, to be imprisoned for one 
 month, unless the said several sums and the costs and charges of con- 
 veying each of them the said C, B, W, and S, so making default to the 
 said gaol, shall be sooner paid." It was held by the Court of Queen's 
 Bench that the conviction was bad, as it made each defendant liable
 
 TAKING HARES OR RABBITS BY NIGHT. 373 
 
 to be imprisoned until he had paid the penalty, and the expense of 
 conveying, not only himself, but the other persons convicted, and that 
 this was not a case in which to exercise the power of amendment under 
 12 & 13 VicL, c. 45, s. 7 {Eer/. v. Cridland). And semhle, where to 
 an information for an offence under 1 & 2 Will. IV. c. 32, s. 30, the 
 defendants bond fide claimed a right to enter upon the land under an 
 authority from S, who was alleged to be the owner of the land, and 
 asked for an adjournment, as they were not then prepared with evidence, 
 which was refused ; this was such a hond fide claim of right as put an 
 end to the jurisdiction of the justices {ih.) 
 
 By statute 7 & 8 Geo. IV. c. 29, s. 30, to take or kill any hare or 
 rabbit in the night time, in any warren or ground lawfully used for the 
 keeping or breeding of the same, is a misdemeanour ; and to take and 
 kill them in any warren or ground in the daytime, or at any time to 
 set any snare or engine for the taking them, is punishable upon sum- 
 mary conviction by fine, not exceeding £5. But nothing in this act 
 affects any person taking or killing in the daytime any rabbits on any 
 sea-bank or river-bank in the county of Lincoln, so far as the tide shall 
 extend, or within one furlong of the bank. Statute 7 t^ 8 Vict. c. 29, 
 s. 1, recites statute 9 Geo. IV. c. 69, s. 1, and extends the provisions 
 of that act to any person by night unlawfully taking or destroying any 
 game or rabbits on the public road, highway, or path, or the sides 
 thereof, or at the openings, outlets, or gates from any such land into 
 any such public road, highway, or path, in the like manner as upon 
 any land open or inclosed. Night-time in both of these acts means 
 some time between the expiration of the first hour after sunset and the 
 beginning of the last hour before sunrise. 
 
 By section 1 of statute 11 & 12 Vict. c. 29 (which did not disturb 
 the existing agreements for the reservation of game), persons in the 
 actual occupation of inclosed ground, or any oivner thereof, who has the 
 right of killing game thereon, by himself or by any person directed 
 or authorised by him in writing so to do according to the form given 
 in the schedule of the act, may take, kill or destroy hares thereon tvith' 
 out a game certificate. Section 2 provides that the authority so to 
 take, kill, and destroy hares, which holds good till February 1st in 
 the year following that in which it is granted, shall, when granted, be 
 limited to one person at the same time in any one jjarish ; that such 
 authority shall be sent to the Clerk of the Petty Sessions, who shall 
 register it ; and if it be revoked, notice must be given to him of the 
 same. Section 4 allows an uncertificated person to join in coursing 
 and hunting ; and sections 5 and 6 render it illegal to lay any poison 
 on the ground, whether open or enclosed, or on the highway, or for
 
 37 i TAK1]SG GAME OX SUNDAY. 
 
 any person to use any fire-arms or guns of any description by night, 
 for the purpose of kilhng any game or liares. The above act appHes 
 only to England and Wales, but 11 & 12 Vicf. c. 30, extends it to 
 Scotland. The form given in the schedule of the former act is as 
 follows : — 
 
 "I, AB, do authorize C D to kill hares on ['my lands,' or 'the 
 
 lands occupied by me,' as the case may he'] within the of ^ 
 
 \Jiere insert ilie name of the ^larisli or of/ier jiJace, as the case may he']. 
 Dated this day of , a.d. 18—. 
 
 " Witness, E F." " A B. 
 
 " By the 1 & 2 TT7//. IV. c. 32, s. 3, the penalty for killing or taking 
 gatne on Sunday or Christmas Day is a sum not exceeding five pounds, 
 to be recovered before two justices with costs. And to kill or take 
 any partridge between the 1st of February and the 1st of September ; 
 or zx\^ pheasant between the 1st of February and the 1st of October ; 
 or any hlac'k ganw, except in Somerset or Devon, or in the New Forest, 
 between the 10th of December and the 20th of August ; or in Somer- 
 set or Devon or the New Forest, between the 10th of December and 
 the 1st of September; or any ^rM^^e, commonly called red game, be- 
 tween the 10th of December and the 12th of August ; or any hustard, 
 between the 1st of March and the 1st of September, is an offence 
 punishable upon conviction before two justices with a penalty not ex- 
 ceeding £1 for any head of game, with costs. It is no offence to have 
 in possessiofi after the 1st of Fehruary partridges and pheasants ivithin 
 a reasonahle time, as on the 9th February {/Simpson v. Univin). And 
 now under s. 4 of the 1 & 2 Will. IV. c. 32, it is illegal, and punish- 
 able with a forfeiture not exceeding £1 for each head of game for a 
 dealer to buy, sell, or have game, after ten days from the dates above 
 specified, and after forty days for any other person. The onus of 
 proving the rightful possession lies upon the defendant. And by sec. 42 
 any exception in his favour must now be made good by witnesses on his 
 ])ehalf. Uncontradicted or unexplained possession is a fact sufficient to 
 warrant a conviction. Under some statutes the exception must be 
 negatived by the prosecutor in his information (Spieres v. Parker; 
 R. V. Turner ; and see R. v. Stone). By 11 & 12 Vid. c. 43, s. 14, if 
 the information or complaint in any case shall negative any exemption, 
 exception, &c., in the statute, the prosecutor or complainant need not 
 prove the negative, but the defendant may ])rove the affirmative, if he 
 would have the advantage of the same." — Serjeant Woolrych on the 
 Game Laws, p. 135.
 
 TAME PHEASANTS SUBJECTS OF LAECENY. 375 
 
 A contract by a licensed dealer in game to deliver jiheasants in good 
 feather on request, followed by a request to deliver them more than ten 
 days from the time (February 1) when it is unlawful to kill them is 
 good, notwithstanding that statute 1 & 2 Will. IV. c. 32, s. 4, prohibits 
 the sale of birds of game at that period, because that section applies 
 to dead game only (Porritt v. Baker). And jjer Parke B. : " There is 
 nothing in the statute to prevent the defendants selling and delivering 
 live pheasants out of season, since they can either buy pheasants from 
 a person who keeps them in a mew, or can keep them in a mew of 
 their own " {ib.) And it was ruled by Lord Camjjhell C. J., in Reg. v. 
 Head, that 'pheasants which have been reared under hens in coops, through 
 the bars of which they could pass, and which had at the time of the 
 robbery been hatched a month, and could fly thirty rods, and answer to 
 the keeper's whistle at night, were as much the subject of larceny as 
 the hens themselves. 
 
 Deer in a park {though an ancient and legal park) mag be so tamed 
 and reclaimed from their natural wild state as to pass to executors as 
 personal propertg ; and so it was held by the Court of Common Pleas, 
 in Morgan v. Abergarenng, where the executors successfully brought 
 trover against the heir. 
 
 But it is laid down in Paslet v. Gray, that where a man, having 
 fishes in a pond, made his executors, and died, and defendant as exe- 
 cutor takes fishes, plaintiff as heir brings trespass rightly ; for they are 
 as profits of the freehold, which the executor shall not have, but the 
 heir, or he who hath the water. Ti'espass Iks for breaking and entering 
 the several fisherg of A. on the soil of B. (Baileg v. Holford) ; but the 
 words "sole and exclusive fishery" are not equivalent to " several " 
 fishery (/&.). 
 
 In the case of Saunders v, Baldg, 1 N. R. Q. B. 87, an information 
 was laid by the appellant, under 1 & 2 Will. IV. c. 32, s. 23, against the 
 respondent, charging him with having, on the 13th of March, 1865, used 
 a trap for the purpose of taking game, he not having a game certificate. 
 The 1 & 2 Will. IV. c. 32, s. 3, forbids the taking game during certain 
 intervals of the year, and the justices dismissed the information on the 
 ground that as no certificate would authorize persons to take or kill 
 game at the period mentioned, the respondent could not be said not to 
 be authorized for want of a certificate, and therefore could not be legally 
 convicted upon an information which charged him with using an instru- 
 ment for the purpose of taking game without a certificate, when no 
 game certificate could be obtained which would authorize his act. The 
 Court, however, decided that the respondent ought to have been con- 
 victed.
 
 370 FEIGHTENING GEOUSE. 
 
 In the cases of Vetjsey v. Hoslcins and Harris v. Hoslins, 34 L. J. 
 (N. C.) M. C. 145, the appellants were found with a net for the purpose 
 of taking game on land which had a hedge on either side and a metalled 
 road through it, but the land on each side of the road was waste, and 
 varying in extent ; it was held that this land was neither open nor 
 inclosed within the meaning of the 9 Geo. IV. c. 69, s. 1. 
 
 In the case of Sfacei/ v. Whitehurst, 34 L. J. (N. S.) M. C. 94, White- 
 hurst and another person were driving along a turnpike road when the 
 other person got out of the conveyance, entered a field, shot a hare, and 
 handed it to Whitehurst, who then drove away, it was held that White- 
 hurst could be found guilty of aiding and abetting to commit the oflfence 
 of trespass in pursuit of game. 
 
 In Kvnijon v. H((rt, 34 L. J. (N. S.) M. C. 87, the respondent was 
 shooting on his own laud when a pheasant rose and flew over the land 
 of anotlier person ; the respondent fired at and killed the bird, which 
 fell upon the other person's land. The respondent went with his dog, 
 and picked up the pheasant and took it away. He was afterwards 
 summoned for " trespassing in search of game," but the justices dis- 
 missed the case, and the Court held that they were right. 
 
 In Iblotson v. Peat, to a declaration alleging that the defendant, with 
 intent to frighten away grouse from plaintiff's land, fired and exploded 
 rockets and fireworks, so as to be a nuisance, the defendant pleaded 
 that he committed the acts complained of in order to prevent the plaintiff 
 from shooting grouse which had been enticed by the plaintiff from de- 
 fendant's land, and from enticing other grouse from defendant's land, 
 it was held that the plea was no answer to the action, and judgment 
 was given for the plaintiif" (34 L. J., (JST. S.) Exch. 118). 
 
 In the case of Hall v. Knox, a constable saw a person with a gun in 
 his hand, on a public footway, in tlie act of picking up a rabbit which 
 was thrown over the hedge by another person ; it was held that to sustain 
 a conviction under the Prevention of Poaching Act, 25 & 26 Vict. c. 114, 
 s. 2, an actual search was not necessary {Hall v. Knox, 33 L. J. (N. S.) 
 M. C. 1), and in Evans v. Bolter ill and Others, 33 L. J. (N. S.) M. C. 50, 
 where the defendants were found on the highway at 6 a.m., with a bag 
 containing a hare and rabbits, and with nets and stakes, it was held 
 that they could be convicted of having obtained the game by having 
 been unlawfully on land in pursuit of game, without direct proof that 
 any of the defendants had been upon any land, or had used any of the 
 nets. 
 
 It is not sufficient to oust the jurisdiction of justices in regard to a 
 charge of trespass in pursuit of game, under 1 & 2 Will. IV. c. 32, s. 30, 
 that there is an honest claim of right, if such claim is absurd and im-
 
 CONVICTION FOR TRESPASS. 377 
 
 possible in point of law. Game statutes are not mere criminal statutes, 
 but are statutes passed for the purpose of protecting the peculiar right 
 of those entitled to shoot game (Wafkins v. Ifajor, 10 L. R. C. P. 662 ; 
 see llorden v. Porter, 29 L. J. M. C. 213 ; Leatt v. Vim, 30 L. J. M. C. 
 207 ; Gornwell v. Saunders, 32 L. J. M. C. 6 ; Hudson v. M'Crea, 33 
 L. J. M. C. 65). 
 
 Picking up ^^heasmit shot in another'' s land a tresjiass. — A person who 
 in his own land shoots a pheasant in the land of another, and goes on to 
 such land to pick the bird up, commits a trespass of entering land in 
 pursuit of game within the meaning of 1 & 2 Will. IV. c. 32, s. 30, the 
 shooting and picking up of the bird being one transaction, but qua>re 
 whether entering land for the purpose of picking up dead game is a 
 trespass within that Act. And per Byles J. : " If it were necessary 
 for us to decide on this occasion, that dead game is within the statute, 
 I should have desired time to consider. But I agree that the pursuit 
 commenced with the shot, and terminated with the picking up. There 
 was a pursuit and a trespass. It would be highly inconvenient to have 
 to inquire in every case wliether the bird had breathed its last or not 
 when picked up" (Oslond appt. v. Meadows resp.). 
 
 Not essential to conviction for trespass in pursuit of game, that there 
 should have heen an intention to commit such tresjMss. — It is not necessary 
 that a conviction under 1 & 2 Will lY. c. 32, s. 30, for a trespass in 
 pursuit of game, should be on the information of the owner or occupier 
 of land, or of a party interested in the game, and on this point Middleton 
 V. Gale (8 Ad. & E. 155) is decisive, and semble per Williams, J. and 
 Willes J., dubitante Keating J., that it is not necessary, in order to 
 support a conviction under the above section, that the defendant should 
 have intended to commit or have been conscious that he was committing 
 a trespass. And per Willknns J. : " The dictum of Erie J. in Reg. v. 
 Cridland (7 E. & B. 853, 27 L. J. (N. S.) M. C. 28) is relied on by the 
 defendant's counsel ; but that case is wholly distinguishable, for it only 
 decides that where the entry is made under a hand fide claim of right, no 
 proceedings can be maintained against the person so entering upon the 
 land. But that is upon a principle not peculiar to this case, but appli- 
 cable to all cases, that no conviction can take place for an act done 
 under a bond fide claim of right to do it. In the case of Reg. v. Pratt 
 (2-1 L. J. (N. S.) M. C. 113), where the defendant was convicted of a 
 trespass, although he never left the high road, the whole discussion was 
 whether there was a trespass on another man's land ; no one thought of 
 suggesting that the defendant would not be liable if he had thought 
 that he had a right to shoot on the high road. With regard to the 
 hardship of thus deciding, I confess I cannot see it. If a person goes
 
 378 EETAKIXG RABBITS FROM POACHERS. 
 
 on to land to enjoy the diversion of shootin^:, he must take care that he 
 has the leave of the person justified to give him leave ; if he chooses to 
 risk it, he must suffer the penalty if it is enforced against him" 
 {Morden, appt. v. Porter, respt.). 
 
 Retaking rabbits from poachers. — If A. wrongfully, after request to 
 give it up, detain a chattel from B., the owner entitled to possession, B. 
 has the possession in law, and A.'s wrongful detention against B.'s 
 request is no possession, but is the same violation of the right of pro- 
 perty as the taking the chattel out of the actual possession of B., and 
 B. (or his servants acting under his command) is justified in using 
 force sufficient to defend his right and retake the chattel. This was a 
 declaration for assault and battery, and the plea was that the plaintiff 
 became the holder thereof, and had wrongfully in his possession dead 
 rabbits belonging to E., and being about to carry them away, the de- 
 fendants as servants of E,, and by his command, requested the plaintiff 
 to refrain, which he refused to do, and thereupon defendants as servants 
 of E., and by his command, gently laid their hands on the plaintiff, 
 and took the rabbits from him, using no more force than was neces- 
 sary. This was held a good plea, although it did not allege how the 
 plaintiff took the property of E. And per Curiam .- " It has been 
 decided that the owner of land entitled to the possession may enter 
 thereon and use force sufficient to remove a wrong-doer therefrom. In 
 respect of land as well as chattels, the wrong-doers have argued that 
 they ought to be allowed to keep what they are wrongfully holding, and 
 that the owner cannot use force to defend his property, but must bring 
 his action lest the peace should be endangered if force was justified ; 
 see Newton v. HarJand (1 Man. & G. G44). But in respect of land, the 
 argument has been overruled in Harvey v. Bridges (14 M. & W. 437, 
 14 L. J. (N. S.) Ex. 384). Here Parks B. says : 'Where a breach of 
 the peace is committed by a freeholder, who, in order to get possession 
 of his land, assaults a person wrongfully holding possession of it against 
 bis will, although the freeholder may be responsible to the public for a 
 forcible entry, he is not liable to the other party, and I cannot see how 
 it is possible to doubt that it is a perfectly good justification to say, 
 that the plaintiff was in possession of the land against the will of the 
 defendant, who was owner, and that he entered upon it accordingly, 
 even though in so doing a breach of the peace was committed.' In 
 our opinion, all that is so said of the right of property in land applies 
 in principle to the right of property in a chattel, and supports the 
 present justification. If the owner was compelled by law to seek redress 
 by action for a violation of his right of property, the remedy would be often 
 worse than the mischief, and the law would aggravate the mischief
 
 PROPERTY IN RABBITS. 379 
 
 instead of redressing it ; and on these grounds, our judgment is for the 
 defendants " {Blades v. Higgs and Another, 34 L. J. (N. S.) C. P. 286). 
 
 The decision of the Court of Common Pleas and Exchequer Chamber 
 was upheld by the House of Lords. 
 
 Rdhhits the propertg of the person on tvhose lands they are started and 
 killed. — If rabbits be started and killed on the land of another, they are 
 the property of the person on whose land they are killed, but the Court 
 were not prepared to decide whether there would be any distinction if 
 the rabbits were driven off the land of one person on to another ; and 
 per Willes J. : " It is impossible to get over the case of Lord Lonsdale 
 V. Eigg (1 H. & N. 923, and 26 L. J. (N. S.) Ex. 196). It will be well 
 when this case is further considered, if it should ever be so, to compare 
 the dictum of Lord ffoU in Sutton v. Moodg, with the passage in the 
 Institutes of Justinian, where it is laid down that wild animals : 
 * Simul atque ab aliquo capta fuerint jure gentium statum illius esse 
 incipiunt quod enim ante nullius est, id naturali ratione occupanti con- 
 ceditur. Nee interest feras, bestias et volucres utrum in suo fundo 
 quisque capiat an in alieno.' The same rule has been adopted in all 
 countries professedly governed by the Roman civil law." Here the 
 defendants, servants of the Marquis of Exeter, claimed the bags with 
 rabbits in them out of the luggage-van, and emptying out the rabbits 
 returned the bags {Blades v. Iliggs and Another). This decision was 
 affirmed in the Exchequer Chamber, on the ground that Lord Lonsdale 
 V. Eigg had settled the question. 
 
 Eeg. V. Paul Eead. This was a case stated by the Vice-Chairman of 
 the Berkshire Quarter Sessions. The prisoner was indicted at the Berks 
 Epiphany Sessions, December 31, 1877, for stealing 18 rabbits the pro- 
 perty of Mr. Smith, his master. The evidence showed that the prisoner 
 was the gamekeeper of Smith, and Was employed to look after a wood in 
 which the game and rabbits and rights of sporting had been granted to 
 Smith by the owner. The prisoner was not at liberty to take or kill 
 rabbits in the wood for his own use, but he took and killed and removed 
 18 wild rabbits from the wood, and had bargained to sell them when 
 they were seized in the possession of the purchaser's agent, the capture, 
 killing, removing, and selling being part of one continuous act. The 
 counsel for the prisoner asked the Court to stop the case because there 
 was not any evidence to go to the jury that the rabbits had ever as sub- 
 jects of larceny been in the possession of Smith, and that, therefore, the 
 prisoner could not be guilty of stealing or embezzling them. The counsel 
 for the prosecution insisted that when the rabbits were captured and 
 killed by the prisoner, they were by that act reduced into the possession 
 of his master and became subjects of larceny or embezzlement. The
 
 3S0 rjGHT OF TENANT TO KILL RABBITS. 
 
 case was left to the jury, the Court telling them that the criminal 
 offence of the prisoner — if any — was embezzlement and not larceny, and 
 that if in their opinion, the prisoner, being the servant of Smith, cap- 
 tured and killed the rabbits, although against the orders of his master, 
 they so came into the possession of the prisoner for and on behalf of his 
 master, and the prisoner converting them to his own use was guilty of 
 embezzlement. The jury found the prisoner guilty of embezzlement, 
 and he was sentenced to four months' imprisonment, with hard labour. 
 But the Court reserved for the opinion of the Superior Court the ques- 
 tion whether the prisoner by capturing and killing the rabbits against 
 liis master's orders did so bring them into the possession of his master 
 that he could by appropriating them to himself be guilty of embezzling 
 them. The enactment on which the question turned is one of the 
 Common Law Consolidation Acts — 24 & 25 Vic. cap. 96, sec. 68 — as to 
 larceny or embezzlement by servants : — 
 
 "Whosoever being a servant, or being employed for the purpose or 
 in the capacity of a servant, shall fraudulently embezzle any chattel, 
 money, or valuable security which shall be delivered to, or received, or 
 taken into possession by him, for or in the name, or on the account of 
 his master or employer, shall be deemed to have feloniously stolen the 
 same fi'om his master, although it was not received into his possession 
 otherwise than by the actual possession of his servant." 
 
 The Court held that the prisoner could not be convicted of embezzle- 
 ment, because the killing and taking away were one continuous act. 
 The conviction was therefore quashed, but the Court expressed no 
 opinion as to whether the prisoner might have been convicted of 
 larceny. 
 
 Tenant killing raihits where, " game^'' reserved to landlord. — Spker 
 & Others (appts.) v. Barnard (resp.) decided that where a tenant occu- 
 pies land under a lease, which reserved to the landlord the exclusive 
 liberty to shoot, hunt, fish, and sport over the land, the tenant may 
 lawfully employ his servants to kill rabbits on the land. This was a 
 case stated by Justices in Petty Session. When the appellants were 
 called on to plead, their solicitor handed in a written notice, by which 
 they denied that they had committed any trespass, but admitted that 
 they were at the place by direction of Jesse Spicer (who proved the 
 fact), the occupier of the land, in search of rabbits, under a bond fide 
 claim of right, but, if such right were disputed, they submitted that the 
 magistrates had no jurisdiction to decide on the hearing of an informa- 
 tion for a penalty, but must leave the landlord to his action at law. 
 The justices convicted the appellants, on the ground that they appeared 
 to have been guilty of the otience, and that the defence set up by them
 
 BONA FIDE ASSERTION OF RIGHT UNDER GAME ACT. 381 
 
 amounted not to a bond fide claim of right or title, so as to oust the ju- 
 risdiction of the justices, but merely to a plea of leave and licence of the 
 occupier of the land, and that such plea was no defence under sec. 30 of 
 1 & 2 Will IV. c. 32. 
 
 Labourer taking rabbit by order of farmer whose lease made no mentmi 
 of rabbits in its game reservation. — A labourer employed upon a farm, 
 the right of sporting over which was reserved to the landlord, was 
 authorized by the tenant to go and kill a rabbit for his wife, who had 
 been confined ; and the justices having found that he killed the rabbit 
 as the servant of the tenant, and by his order, it was held, on the autho- 
 rity 0^ Spicer v. Barnard (28 L. J. (N.S.) M. C. 176), that the labourer 
 was not liable to be proceeded against under 1 & 2 Will. lY. c. 32, s. 30, 
 for a trespass in pursuit of coneys. Hawkins, his master, had succeeded 
 one Christmas as tenant on the terms generally of Christmas's lease, of 
 which there had been no assignment, and had constantly killed rabbits 
 on the land in his occupation. The original lease between Christmas 
 and Padwick contained no mention of rabbits in its reservation of game, 
 and in the agreement between Hawkins and Padwick there was this ex- 
 ception in reference to game — " excepting that the said H. J. Hawkins 
 shall have permission to sport over the said farm and lands " {Padwick, 
 appt. V. King, resp.). 
 
 Bond fide assertion of right under Game /Ic^. — The jurisdiction of the 
 justices to convict summarily under 1 & 2 Will. IV. c. 32, s. 30, for trespass 
 in pursuit of game is ousted when a question of right to be on the land 
 is bond fide raised between the complainant and defendant, according to 
 Reg. V. Cridland (7 E. & B. 853, 27 L. J. (N.S.) M. C. 28) and Morden 
 V. Porter (7 C. B. (N.S.) 641, and 29 L. J. (N.S.) M. C. 22(^).~Legg, 
 appt. V. Pardoe, resp. 
 
 Mere vague belief of right not sufficient to oust jurisdiction of magistrates 
 under Game Act. — A person charged under stat. 1 & 2 Will. IV. c, 32, s. 
 30, with trespassing in pursuit of game in the daytime on land in the 
 occupation of a tenant to A., set up a claim of right to shoot over the 
 land on the ground that he and every one who chose had always shot 
 there till some recent acts of interruption, and declared his readiness to 
 try the right with A. It was held by the Court of Queen's Bench that 
 the mere assertion of such a general right in himself and every one else, 
 though he really believed it, without showing any such claim of right as 
 would be a defence to an action of trespass, did not oust the jurisdiction 
 of the magistrates to convict under the statute in question. 
 
 Ousting justices' jurisdiction. — In a prosecution for a trespass in pur- 
 suit of game under 1 & 2 Will. IV. c. 32, s, 30, the defendant cannot 
 oust the jurisdiction of the justices by disputing the title of the person
 
 38:2 OUSTING JUSTICES' JUEISDICTIOX. 
 
 "who is alleged in tbo information to be in occupation of the land 
 in question. In order to do that, he must make a hond fide claim of 
 title on behalf of himself or of those under whom he claims. The 
 justices are to consider ^-liether the occupation is proved as alleged in 
 the information. It -svas held by CocMmni C.J., BlacJchurn J., and 
 Mellor J., that if there ^as any evidence before the justices proving 
 the occupation as laid, they would be justified in deciding that the in- 
 formation was proved ; and that a superior court ought not, upon a 
 case granted by them under 20 & 21 Vic. c. 43, to interfere with 
 their decision. It was shown on the evidence on behalf of the lord 
 and in support of the prosecution that the appellant was beating for 
 game with a dog and a gun on the day in question in a part of the 
 pai'ish of Slow cum Quy called Quy Fen, and that he asked a witness 
 not to say anything about it, and that Quy Fen was within the manor 
 of Slow cum Quy, the bounds of which were coterminous with the 
 parish. The appellant gave evidence to prove that he had been in the 
 habit of shooting over Quy Fen for forty years, and that the inhabitant 
 householders had paid a tax raised for the draining of Quy Fen. 
 
 Young pheasants still under protection of hen in coop hy day are not 
 game. — It was held by PollocTc C.B. and Williams J. that a prisoner can- 
 not be convicted under 9 Geo. IV. c. 69, s. 9, for entering land by night, 
 armed for the purpose of taking game, when his object is to steal young 
 pheasants which had been hatched by a hen, and had not yet become 
 wild. Although they roosted on trees near the coops, they were still 
 under the care and protection of the hen, and therefore were Dr. Ver- 
 non's property, and not game, which is not the subject of property, 
 and the prisoner was convicted of a common assault {Reg. v. Garnham). 
 Tame deer in parTc personal property. — Tame deer in a park are per- 
 sonal property, and the Court will not interfere to restrain waste in not 
 keeping up the herd {Ford v. Tynte, in which case Morgan v. Lord 
 Abergavenny, 8 C. B. 768, was cited). 
 
 Loi'd of Manor's exclusive right to sport over allotments. — Ewart v. 
 Graham (Bart.) was confirmed with costs in the House of Lords (29 
 L. J. (N. S.) Ex. 88). It was a proceeding by way of writ of error, 
 brought for the purpose of reversing a decision of the Court of Ex- 
 chequer Chamber, partly affirming and partly reversing a judgment of 
 the Court of Exchequer, pronounced on a special case stated for the 
 opinion of that Court. Lord Wenslcydale adhered to his Exchequer 
 decision, that there was a reservation of the de facto right : he only 
 doubted whether this case could be distinguished from Greethead v. 
 Morley (3 M. & G. 139, and 10 L. J. (N. S.) C. P. 246); but if it 
 could not, he was prepared to say that case was wrongly decided.
 
 SPORTING EIGHTS OF LORD OF MANOR. 383 
 
 Hence the lord still possesses the exclusive right of hunting, shooting, 
 &c., over the allotments. 
 
 Lord of Manor not entitled to shoot over allotments of Common. — In 
 Bruce v. HellhveU, an Inclosure Act, after directing one-sixteenth of 
 the common land to be allotted to the Lord of the Manor as a com- 
 pensation for his right to the soil, and the residue (with certain ex- 
 ceptions) among the commoners, contained a proviso that nothing in 
 the act should defeat, lessen, or prejudice the right, title, or interest of 
 the lord to the mines and minerals in or under the said commons, or 
 to any seignories or royalties incident and belonging to the manor, 
 the same being thereby reserved to the lord, with full power for him 
 at all times to hold and enjoy all rents, fines, duties, customs, and ser- 
 vices, and all courts and perquisites, and liberty of hunting, coursing, 
 fishing, and fowling within and throughout the said manor ; and all 
 goods and chattels of felons, treasure trove, waifs, estrays, forfeitures, 
 royalties, jurisdictions, purchases, and privileges whatsoever to the said 
 manor incident or appertaining (other than and except such right as 
 could or might be claimed by him as owner of the soil and inheritance 
 of the said commons) in as full ample and beneficial manner to all in- 
 tents and purposes as if the said act had not been passed. As owner 
 of the soil of the commons, the lord had before the act the free and 
 exclusive right and liberty of sporting and killing game thereon, but 
 there was no right of free share or free warren within the manor. It 
 was held that the lord retained no right to shoot over the allotments. 
 And per Bramivell B. : " Eioart v. Graham is distinguishable from this 
 case, inasmuch as the words in it were that the lord was to have the 
 right of shooting, fowling, coursing, and so forth over the allotted 
 lands. It might be that that right had been conferred upon him under 
 some mistake as to its previous existence ; but whether it was conferred 
 upon him owing to that mistake or not, the answer is that it was con- 
 ferred upon him. It might have been conferred upon him under a 
 mistake, namely, under the misapprehension which my brother Martin 
 referred to as to the rights of lords of manors. Whatever be the origin 
 of it, there it was." 
 
 In Reg. v. Inhabitants of Thurlstone, a tenant occupied land under 
 an agreement with his landlord, that he was to have no right to the 
 game upon it. He was assessed to the poor-rate on the land valued with 
 the game, and on appeal before the West Riding Magistrates it was 
 agreed that the proper assessment should be, if for the land only, without 
 a right to the game, £11 os. 8d. ; and if with the game, £26 19s. 8d. ; 
 and the Court of Queen's Bench held that he ought to be assessed only 
 for the lower amount.
 
 384- FREE LTBEr.TY TO SPORT A LICEXCE OF PROFIT. 
 
 "Where, as in DayreU v. Hoare, estates, hereditaments, and premises 
 were demised to R. for life, with power to the tenant for life to make 
 any lease of the same, or any part or parts thereof, for 21 years, re- 
 serving the most improved yearly rent, with a condition for re-entry on 
 non-payment, so that there should be no clause giving the lessee power 
 to commit waste, and so as the rent should be incident to and go along 
 with the reversion, it was held by the Court of Queen's Bench that 
 thisjwirer did not authorize a lease of jmrt of the land, tcith liberty to 
 sport over the rest ; and where defendant in trespass justifies, in a righ t 
 which he claims under the estate of tenant for life, simply as such, he 
 must aver the continuance of the life. 
 
 Any one may lease or convey his land, and reserve to himself the right 
 of entering to kill ya me without being subject to being sued as a trespasser ; 
 but an exception to a deed, made a.d. 1655, of the free liberty of 
 hunting and hawking, will not extend to shooting feathered game with 
 a gun, because guns, not being in common use, could not have been in 
 the contemplation of the parties (dloorev. Lord Plymouth) ; and semble 
 that the liberty of hawking and hunting for the grantee, his friends 
 and servants, is a tenement, and entailable {ib.). The grant to a 
 person, his heirs and assigns, of " free liberty, with servants or otherwise, 
 to come into and upon lands, and there to hawk, hunt, fish, and fowl," 
 is a grant of a license of profit, and not of a mere personal licence of 
 pleasure ; and therefore it authorizes the grantee, his heirs and assigns, 
 to hawk, hunt, &c., by his servants in his absence ( WicJcham v. ffawJcer). 
 Such a liberty is therefore a j^^ofit « prendre within the Prescription 
 Act 2 & 3 Will. IV. c. 71, s. 2 (ib.). And per Curiam, " What relates in 
 a lease to the privilege of hawking, hunting, fishing and fowling is not 
 either a reservation or an exception in point of law ; it is only a privi- 
 lege or right granted to the lessor, though words of reservation and excep- 
 tion are used." {Doe dem. Douglas v. LocTi:). It is also decided by the 
 case of the Duchess of Norfolk v. Wiseman (Year Book, 12 Hen. VIII. 
 25), that if there be 2i personal licence of pleasure, it extends only to the 
 individual, and it cannot be exercised with or by servants ; but if there 
 is a licence of profit, and not for pleasure, it may. 
 
 The franchise of free ivarren is of very great antiquity, and very sin- 
 gular in its nature. It gives a property in wild animals ; and that pro- 
 perty may l)e claimed in the land of another, to the exclusion of the 
 owner of the land. And " no one can make a park, chase, or warren 
 without the king's licence" (2 Inst. 109). 
 
 As rooks are birds /«yc naturce, not known as a regular article of food, 
 causing no expense to keep, and not protected either by common law 
 or statute, the owner of a rookery can have no pro})crty in them, or
 
 DECOYS. 385 
 
 show any right to have them resort thither, and therefore he cannot 
 maintain an action against any one for firing guns near it and causing 
 them to desert {Hannam v. Mockott). 
 
 This case differed from Keehle v. Hickeringill, where it was decided 
 that an action on the case lies for discharging guns near the decoy of 
 another, ivith design to damnify ths owner hy frightening away the tvild- 
 fowl resorting thereto, and by which the wild-fowl are ftightened away 
 and the owner damnified. In the first place, wild-fowl are protected 
 by 25 Hen. YIII. c. 11 (a.d. 1533-34), which forbids every one except 
 a forty- shilling fi-eeholder to take wild-fowl, to wit, " ducks, mallards, 
 widgeons, teals, wild-geese, and divers other kind of wild-fowl," and 
 only permits them the use of a spaniel and a longbow for that pur- 
 pose. The statute of 3 & 4 Edii\ VI. c. 7, which repeals that of 
 25 Hen. VIII., takes notice of wild-fowl, and hath the general word 
 wildrfoivl, without coming to particulars. They also constitute a 
 known article of food ; and a person keeping a decoy, spends money 
 and employs skill in taking that which is of use to the public. It is 
 consequently a profitable mode of employing his land, and is con- 
 sidered by Lord Holt C. J. as a description of trade. Carrington v. 
 Taylor vfSi's, governed by Keehle y. Hiclcer in giU ; and it was there held 
 that as the defendant, being out shooting wild-fowl on part of an 
 open salt-water creek called The Blackwater, on the Essex shore, first 
 fired his fowling-piece about a quarter of a mile from the plaintiff's 
 decoy, when 200 or 300 wild-fowl came out, and afterwards, ap- 
 proaching nearer, fired at wild-fowl on the wing at the distance of 200 
 yards from the decoy, where he killed several widgeons, and caused 
 400 or 500 wild-fowl to fly from the decoy, though he did not fire into 
 it, this was evidence of a wilful disturbance of the decoy, for which an 
 action on the case would lie. 
 
 Where a demise was made of a mansion-house and land, with the 
 sole licence of shooting and sporting over all other the lands of the 
 lessor, " subject to the liberty for each tenant on hi^farm to Mil rabbits 
 thereon with ferrets 07ilg ;" this exception as to killing rabbits extends 
 not only to farms existing at the time of the demise, but also to other 
 lands, as plantations, subsequently let as farms {Newton v. Wilmot). 
 A demise of lands, excepting and reserving all rogalties, with a clause 
 for the lessor to be allowed to prosecute actions against persons tres- 
 passing for the purpose of hunting, &c., does not amount to a grant 
 by the lessee of a liberty for the lessor to enter for the purpose of pur- 
 suing, killing, and taking birds of warren (Pannell v. Mill). And per 
 Coltman J. : "The present case is distinguishable from that of TlVr^-- 
 ham V. Hawker ; as in that case the clause excepting and reserving 
 
 c
 
 386 SPORTING OVER CATTLEGATES. 
 
 the liberty to hunt, &c., could not by possibility operate as an excep- 
 tion or reservation. In the present case it is not so, for a royalty may 
 by laT? be appurtenant to land as in this very case of warren ; a man 
 may have warren in his own land, or in that of another man by pre- 
 scription (Bro. Abr. tit. "Warren, pi. 2), And in the case of Boivhton v. 
 Hanh/, it is said a warren is not parcel, nor any member of a manor ; 
 though it may be appertaining, but that is, by prescription. And it is 
 said in Di/cr, page 30, n (209), and in the ' Year Book,' in SliJe v. 
 Abbot of Tctrhxhiiri/ (T. 8 H, 7, fo. 4), that a man may have warren 
 in the land of another as appendant to his manor ; and if the manor is 
 granted cinn periineniiis, the warren will pass." [ib.) 
 
 It was decided in error from the Court of Exchequer (which had been 
 equally divided on the point) that the customary right of pasture in a 
 manor or cattlrgates gives the owners no right to possession of the soil ; 
 but the ownership of it remains in the lord of the manor, subject to 
 the right of several pasture upon it by the cattlegate owners, and 
 therefore the lord may maintain trespass against a cattlegate owner 
 for sporting over it without his permission {Rigg v. Earl of Lonsdale.) 
 And it was held by the Court of Common Pleas, in Greathead v. Morley, 
 that the right of sporting over the allotments of the moor or common in 
 question was not reserved to the lord of the manor by the saving clause in 
 the Inclosure Act, "with/re^ uxirren, and liberty of hunting, hawking, 
 fishing and fowling," the object of that clause being to reserve to the 
 lord all those manorial rights which he possessed before the inclosure, 
 as lord, except the right to the soil ; the power of a lord to sport over 
 a waste within his manor being not a licence or liberty, but a mode of 
 enjoyment of his own property. 
 
 The ai.pellant in Meddins v. Williams had been convicted under stat. 
 1 & 2 Will. IV. c. 32, s. 32, for tresjiassing upon certain land inclosed 
 under an Inclosure Act, in company with five or more persons. It ap- 
 peared that the appellant had the consent of the allottee of the inclosed 
 land, but not of Sir "Watkin W. Wynn, who was the lord of the manor, 
 to whom the right of taking game was said to be reserved. It was con- 
 tended, in support of the conviction, upon the authority of Graham v. 
 Ewart, that the right to take the game was clearly in the lord of the 
 manor, and that although the appellant had the consent of the allottee, 
 he was nevertheless a trespasser within the Act. Lord Campbell C. J. 
 said, " It was clear, after the decision in that case, that the right to take 
 game in the locus in quo was exclusively in the lord of the manor. 
 The question was a nice and difficult one, but the Court was bound 
 by that decision. The lord of the manor was not entitled to the 
 right ralione soli, but it was confiimed to him in the hands of the
 
 DEMISE OF SPORTING UNDER SEAL. 387 
 
 allottee. It was impossible for lancjnape to he better calculated to 
 secure this than that used in the 12th section, which enacted that 
 when the game was reserved to another person than the occupier, the 
 latter should be liable to a penalty for giving permission to kill game 
 on the land so occupied by him. The rest of the judges concurred, and 
 the conviction was affirmed, with costs. 
 
 Under an ancient charter, granting to the mayor, aldermen, and 
 burgesses of a dorough the right to sport over lands within the liherties 
 thereof, individual burgesses, in the absence of all evidence of the 
 exercise of the right, are not entitled to enter a field within the liber- 
 ties, but in the occupation of a third party, to kill rabbits with a dog 
 or ferret, or for any other kind of sporting. Coleridge and Wight- 
 man J.J, referred, in support of their judgment, to the authority of 
 The Mayor of Colchester v. Prestney, w^here (argued June 23, 1857, but 
 not reported) the right of individual burgesses to dredge for oysters 
 was attempted to be made out ; but the Court of Queen's Bench 
 held that the right was in the corporation, but not in the individual 
 corporators. 
 
 A demise in writing, lid not under seal, of a messvage, and full and 
 exclusive licence and leave for the lessee, his friends, gamekeepers, &c., to 
 hvnt, hawk, course, shoot, and sport on, over, and upon a manor of the 
 lessor, and to fish in the ponds and waters thereof, from August to 
 February following, at an entire rent, is altogether void {Bird v. Hig- 
 ginson). And so it was ruled, in The Dulce of Somerset v. Fogivell, that 
 where a suhject is owner of a several fishery in a navigalde river, where 
 the tide flows and reflows, granted to him (as must be presumed) before 
 Magna Charta by the description of '■'• separatem piscariam" that is, an 
 incorporeal, and not a territorial hereditament, and a term for years in 
 it cannot be created without deed. But in Thomas v. FredericJcs, where 
 a written agreement 7iot under seal was declared on, by which plaintiff 
 agreed to let land to defendant with right of sporting, defendant to 
 make satisfaction to plaintiff's tenants for damage done by game on 
 their farms, the amount to be ascertained by valuers and an umpire ; 
 and defendant neither made satisfaction nor appointed a valuer ; it was 
 decided that, though the right to shoot did not pass under this contract, 
 being an incorporeal hereditament, yet the agreement to make com- 
 pensation was valid, and good ground for an action, defendant having 
 had the full benefit of such agreement. 
 
 Jf a purchaser after the delivery of the abstract, on the face of which 
 part of the estate appears to he suhject to a right of sporting, not mentioned 
 in the particulars of sale, enters into possession, he waives that objection 
 {Burnell v. Brown). Where a vendor fails to make a good title pur- 
 
 c c 2
 
 38S SALE OF SHOOTING. 
 
 suant to his contract, the purchaser (in the absence of fraud or mis- 
 representation on the part of the vendor) is not entitled to damages for 
 the loss of his hargain. Thus in Pounsett v. Fuller, the defendant 
 agreed to sell to the plaintiff shooting on a certain manor, and it was 
 afterwards discovered that the defendant had a mere equitable title, in 
 tact, a mere agreement from the owner of the manor to let the shooting 
 to him for four years, he supplying his house with game. The plaintiff 
 brought an action for the breach of the contract ; but it was held that 
 he was entitled only to recover nominal damages, and the expenses 
 incurred in tlie investigation of the defendant's title, but not damages 
 for the loss of his bargain, or expenses incurred in obtaining shooting 
 elsewhere, or in fruitless endeavours to substitute a new contract on the 
 failure of the original bargain. The Court of Common Pleas thought 
 the case fell within Flureau v- Thornliill, which decided that where a 
 man undertakes to sell an estate, the bargain is to be understood as 
 being subject to this qualification or condition, viz., that he has a good 
 title to convey ; and in the judgment it is said to result from that, that 
 the vendee, where the bargain goes off by reason of the vendor's inability 
 to perform the condition, gets no damages beyond the mere expenses of 
 investigating a title which turns out to be bad. 
 
 In TotnUnson v. Day, the defendant took a mansion-house and farm 
 from the plaintiff under an agreement, by which the plaintiff agreed, 
 among other things, tlial the defendant should have the exclusive right of 
 sporting over the manor in tvMch the farm lag, and should occupy the 
 glebe land of the parish. The rent was to be £450, and the defendant 
 occu})ied the farm for some time ; but the agreement, although acknow- 
 ledged and recognised, was never signed by the defendant. The chief 
 inducement of the latter to take the farm was the promised privilege of 
 an exclusive right to sport ; but it turned out that the plaintiff' (not 
 being the owner of all the lands in the manor, and not having free 
 warren) had no power to grant any such privilege ; and the defendant 
 was, in fact, warned off by the several occupiers within the manor. 
 The plaintiff also failed in procuring the glebe for the defendant's 
 occupation, and for this he offered to make a proportionate abatement 
 of the rent. The defendant was sued in Use and Occupation for £450, 
 one year's rent, as reserved by the agreement, and paid £350 into 
 Court, and had a verdict, the jury considering that to be the annual 
 value of the land, independently of the glebe and the privilege of sport- 
 ing. The Court of Common Pleas held that it was clearly the ]3rovince 
 of the jury to ascertain, independently of any agreement, what the 
 defendant ought to pay, and that an eviction of part of the subject 
 matter of the demise (namely, of the exclusive privilege of sporting)
 
 LAYING TRAPS FOR DOGS. 389 
 
 having been clearly proved in the present instance, the rule for a new 
 trial must be discharged. 
 
 The ])rincij)Je of compensation for damage hy game was upheld in 
 Barrow v. Ashhurnham, where evidence was given of a conversation 
 between the plaintiff who subsequently became the tenant, and the 
 steward of the defendant, in which the former said, " I have no objection 
 to take the farm, if the game is destroyed ; I don't care so much about 
 the birds, as the hares and rabbits." To this the steward replied : 
 "Why, you are a man who keep no dog. and use no gun, and you ought 
 not to be annoyed with hares and rabbits ; you must let the keepers 
 know, and they must kill them." The plaintiff rejoined, " Then upon 
 these terms I will take the farm." This conversation was held by the 
 Court of Queen's Bench to infer a contract on the ])art of the landlord 
 to kill the hares and rabbits ; and that the landlord was liable to 
 damages (in this case £150) committed by the hares and rabbits on the 
 tenant's farm. 
 
 A bequest of money (£5,000) to le applied in purchasing the disclmrge, 
 of persons, who, at the time of the testator's decease, or within five years 
 afterwards, should be committed to jn-ison for non-payment of fines, fees, 
 and expenses under the game laws, was held by Sir J. RomiUg M.C. to be 
 invalid, as contrary to public policy (Thrupp v. Collett). 
 
 The subject of laying traps for dogs was first considered in Toumsend 
 V. Wathen. Here the defendant owned a large wood within 150 yards 
 of the plaintiff's house, which was intersected with public highways 
 and paths. In the blind tracks, traps large enough to catch sheep or 
 deer were laid and baited with fresh or stinking flesh. But no notice 
 was given of the traps being set. Besides this, paunches rubbed with 
 aniseed had been dragged by the gamekeeper at a circle round the 
 traps, to di'aw animals to them, for which defendant recompensed the 
 keeper, at the rate of 2s. 6d. for every fox and badger, and Is. for every 
 dog. Some of these traps were set so near the plaintiff's house that the 
 baiting and aniseed might be scented by the dogs there. It was held 
 by the Court of Queen's Bench that an action on the case lay. 
 
 In Deane v. Clayton, where the plaintiff' had a verdict for £15, subject 
 to a point which Dallas J. reserved, on the authority of Toivnsend v. 
 Wathen, the Court of Queen's Bench was divided in opinion as to 
 whether, if plaintiff's dog started off the unfe need puMic footpath through 
 defendant's tvood, and ran against spikes placed in the hare-paths {of 
 which due notice ivas given), the plaintiff was entitled to compensation 
 for his £50 pointer if he chased a hare and was killed. ParTc and 
 Burrough JJ. held that he was, and Gibbs C.J. and Dallas J. that he 
 was not. The Court of Exchequer adopted the ruling of the latter two
 
 390 SPRING-GUNS. 
 
 judges, in Jordin v. Crump. The questiou here was whether the 
 plaintitf was entitled to compensation for the death of or an injury 
 done to his dog, who by reason of his own natural instinct, and against 
 the will of his master, ran off the path, after a rabbit which crossed it, 
 against certain dog-spears, which were set by the defendant in his 
 wood, and of whicli tlie plaintitf admitted he had notice. The Court 
 considered that this was a stronger case than Deane v. Clayton, and said 
 that if a man chose to walk with his dog along a footpath through 
 ground on which the latter might commit a trespass, he knew the risk 
 he was running. 
 
 Per Ahlerson J. : " Illoff v. Wilkes was decided previously to the 
 passing of the 7 & 8 Geo. IV. c. 18, and was the case of a party tres- 
 passiny in a wood, ivith notice that spriny-yuns were set there ; but the 
 Court of Queen's Bench held that he was not entitled to recover against 
 the owner of the wood for damage done him thereby, it having been his 
 own fault to go where spring-guns were set, for with that knowledge on 
 his part spring-guns ceased to be secret engines of mischief. The case 
 was similar to that of a trespasser endeavouring to climb a wall, who 
 should hurt himself by coming in contact in the dark with spikes, or 
 broken glass stuck upon it, in a case where it appeared that he had a 
 previous opportunity of observing in broad daylight that such means of 
 mischief were placed on the wall. The otlier was the case of Bird v. 
 Holbrooh, which was decided after the passing of the statute 7 & 8 
 Geo. IV. c. 18. That was a case where the defendant, for the protection 
 of his propert}^ set a spriny-yim in a walled yarden, not only without 
 giving notice, but where it appeared by tlie evideuce that he had pur- 
 posely abstained from giving any, in order that the thief (as he said) 
 miglit be detected. The plaintiff" was in search of a stray pea-hen ; and 
 liaving trespassed in the garden, the spring-gun went off, and injured 
 him severely. On this the Court of Common Pleas held that he was 
 entitled to maintain an action against the defendant ; but the reason of 
 this decision was that seiliny spriny-yans 'without a notice was, even 
 independently of the statute, an unlawful act. The correctness of this 
 position may perhaps be questioned ; but if it be sound, the decision in 
 that case was right. Our judgment, however, in the present case 
 proceeds on the ground that to set dog-spears in this wood was a per- 
 fectly legal act on the part of the defendant." The setting of dog-spears 
 is not in itself an illegal act, nor is it rendered such by the stat. 7 & 8 
 Geo. IV. c. 18, s. 1, which prohibits the setting or placing of man-traps 
 or other engines calculated to destroy human life, or inflict grievous 
 liodily harm, with intent that or whereby the same may destroy human 
 life or inflict grievous bodily harm.
 
 DAMAGE BY GAME. 39J 
 
 But it was decided by the Courts of Queen's Bench (where a rule had 
 been moved for by mistake) and Common Pleas, in Wootton v. Dawkins, 
 that an engine intended to give alarm hy loud explosion is not " a spring- 
 gun " within the meaning of that section, and that a trespasser, though 
 in a degree injured thereby, cannot recover for such injury at common 
 law ; nor in the absence of evidence that it was caused by a spring-gun 
 or other engine " calculated to inflict grievous bodily harm," under the 
 statute. Here the plaintiif, having obtained permission during the 
 daylight to go into the defendant's garden to look for a lost bantam, 
 climbed over the wall into it by a ladder, without permission, at night ; 
 and whilst groping among the bushes, came in contact with a wire, 
 which caused something, the nature of which was not in evidence, to 
 explode with a loud noise, knocking him down and slightly injuring his 
 face and eyes. 
 
 In Read v. Edwards, 34 L. J. (N. S.) C. P. 31, the plaintiff brought 
 an action against the defendant for damages sustained by him in respect 
 of a dog which was in the habit of hunting game in plaintiff's woods, 
 and thereby causing damage to the plaintiff, and the Court held that 
 such action was maintainable. 
 
 In the case of Barlcer v. Davis, the appellant shot game on land 
 which he occupied as tenant. Before the commencement of the tenancy, 
 the landlord had granted the right of shooting to a Mr. Garnett, by 
 deed. The tenant, the appellant in the case, was summoned and con- 
 victed before justices, on the evidence of Mr. Garnett, that he had the 
 exclusive right of shooting on the land in question, that he preserved 
 the game, and had given no permission to the tenant to shoot. It was 
 held that upon this evidence the justices ought not to have convicted, 
 as there was not sufficient evidence that the right of shooting was in 
 Garnett, without the production of the deed (34 L. J. (N. S.) M. C. 141). 
 In the case of Dawson v. Fitzgerald, 9 L. R. Ex. 7, the defendant hired 
 of the plaintiff the right of shooting over certain lands upon the terms, 
 amongst others, that the defendant during his tenancy would only keep 
 such a number of hares and rabbits as would do no injury to the woods 
 or plantations on the estate, or the growing crops of the tenants, and if 
 such damage or injury did result to the crops of the tenants or the trees 
 of the plaintiff, then the defendant should pay the plaintiff or the 
 tenants a fair and reasonable compensation for such injury. It appeared 
 that injury was done to the trees and crops ; and to an action brought 
 for compensation for such injury, the defendant pleaded that " one of 
 the terms of the tenancy was, that in case of any such injury, the 
 defendant would pay a fair and reasonable compensation, the amount of 
 such compensation, in case of difference, to be referred to two arbitra-
 
 392 PURSUIT OF GAME. 
 
 tors or an umpire ; that a difference arose, and that no arbitrators or 
 umpire were appointed, and no award made." Held, on demurrer, that 
 this was a good plea. 
 
 To sustain an indictment under the 9 Gpo. IV. c. 69, s. 4, it must be 
 proved that proceedings were commenced within twelve months from 
 the time of the offence, and the warrant under which the prisoners 
 are apprehended is not sufficient evidence : the information also must 
 be proved (7?^y/. v. Parlm; 33 L. J. (N. S.) M. C. 135). 
 
 In the case of Jeffnjes v. Evans, 34 L. J. (N. S.) C.P. 261, the plaintiff 
 hired of the defendant the exclusive right of " shooting and sporting 
 over and taking the game, rabbits, and wild fowl upon " a farm of 
 which one Rees was tenant, the defendant having in his lease to Rees 
 reserved this exclusive right to himself. Rees shot a quantity of rabbits 
 and grubbed up a large extent of gorse, and the plaintiff brought an 
 action against the defendant in consequence of these acts of Rees. It 
 was held that Rees had no right to shoot the rabbits, and that his act was 
 a wrongful one, for which defendant was not liable, but that Rees had 
 a right to grub up the gorse in the reasonable course of husbandry, and 
 that there was no implied covenant with the plaintiff that this should 
 not be done, and that defendant was therefore not liable for such act of 
 Rees. 
 
 A person who has a right of shooting over land the property of ano- 
 ther by an agreement not under seal has not such an interest as to 
 entitle him to compensation from a railway company under the Lands 
 Clauses Consolidation Act, 8 & 9 Vict c. 18, s. 68, in respect of the 
 shooting being diminished in value by the company taking a portion 
 of such land for the purposes of constructing a railway {Bird v. Great 
 {Eastern Railway (34 L. J. (N. S.) C. P. 366). 
 
 Pursuit of game under 25 & 26 Vict, c. 1 14, s. 2. Under the 2nd section 
 of the new Game Act, empowering constables to stop and search persons 
 suspected of poaching, and on finding game, or instruments for taking 
 game upon them, to summon them before justices, the justices may con- 
 vict without direct proof that the persons charged have gone upon any 
 land in pursuit of game, circumstantial evidence that they must have 
 done so being sufficient {Broivn & Others v. Turner). 
 
 In order to justify a conviction under 25 & 26 Vict. c. 114, s. 2, it is 
 necessary that game or instruments for taking game should be found on 
 the accused on a highway ; it is not sufficient that the accused should 
 be seen on a highway and game found on him elsewhere {Clarke v. 
 Crowder, 4 L. R. C. P. 638 ; see also Turner v. Morgan, 10 L. R. 
 C. P. 587). 
 
 In Jenkins & Dennis v. Kinrj, 7 L. R. Q. B. 478, the appellants were
 
 APPREHENSION UNDER GAME ACT. 393 
 
 convicted under the 25 & 26 Vict c. 114, s. 2, of having used a net for 
 unlawfully taking game ; they were met at about half-past nine at night 
 on the highway by a policeman, one of the appellants had a game-net under 
 his arm, and a lurcher dog accompanied them ; nothing else was found 
 upon them, but the net was wet, and the policeman had shortly before 
 heard the yapping of a dog as if in pursuit of game, held that the con- 
 viction was riffht.
 
 S94 VALUATION OF TITHES. 
 
 CHAPTER XII. 
 
 TITHES. 
 
 The value of the rent charge, charged upon any land in lieu of tithes 
 hy the apportionment, is reckoned as if one-third of it were invested in 
 wheat, one-third in barley, and one-third in oats, at certain fixed prices, 
 which were declared by 7 Will IV. and 1 Vict. c. 69, s. 7, to be 7s. Oid. 
 for a bushel of wheat, 3s. ll^d. for a bushel of barley, and 2s. 9d. for a 
 bushel of oats ; and by 6 & 7 Will. IV. c. 71, s. 56, the average is settled 
 each January from the returns of the seven previous years, ending on 
 the Thursday next before the preceding Christmas-day. The sum in 
 question is payable half-yearly, and issues out of the lands, and is liable 
 to rates, charges, and assessments in all respects as tithes were. And by 
 14 & 15 Vict. c. 25, s. 4, if any occupying tenant of land shall quit, 
 leaving such tithe rent-charge unpaid, and the tithe-owner shall give or 
 have given notice of proceeding by distress on the land for its recovery, 
 the landlord or the succeeding tenant or occupier may pay it, and re- 
 cover the sum and expenses as if it were a debt by simple contract due 
 from such first-named tenant or occupier. 
 
 The several Acts of Parliament for the commutation of tithes in 
 England and Wales were lately extended by the 23 & 24 Vict. c. 93. 
 According to the new law, corn rents under local acts may be converted 
 into rent-charges, which rent-charges are to be appointed by the com- 
 missioners with power to appeal to a court of law. Tithes commuted 
 for a sum or rate per head of cattle may be converted into a rent-charge. 
 " Whenever a sum or rate per head sliall be in arrear, the arrears shall 
 be recoverable by distress and impounding of any cattle, stock, goods, or 
 chattels belonging to the person in respect of whose cattle or stock such 
 sum or rate per head is in arrear, wherever the same may be found." 
 The commissioners have access to the books of the comptroller of corn 
 returns, and are to be iui'iiislied by him with such information as they 
 may require for the purpose of any award of rent-charge in lieu of 
 com rents. 
 
 Twenty yearn'' perception nf tithes does not give a title or right to them ;
 
 LIABILITY OF OWNER OF LAND. 395 
 
 and stat. 3 & 4 Will TV. c. 27 cannot be applied to the case of tithes, in 
 the same way as it has been held to operate as a parliamentary convey- 
 ance of land {Bunhury v. Fuller). 
 
 A lequest of pnre personalty to a cJiarity, the object of which is the 
 purchase and restoration of the church of impropriate tithes, was held 
 by the Lords Justices, confirming the judgment of Sir J. Romilly M.R. 
 to be void under the Mortmain Act (stat. 9 Oeo. II. c. 3G), notwithstanding 
 stat. 6 & 7 Vid. c. 37, s. 25, and stat. 13 & 14 Vict. c. 94, s. 23 {Denton 
 V. Lord John Planners). 
 
 The 6 & 7 Will. c. 71, creates no personal liability iqwn the oivner of 
 lands charged with the tithe-rent. In Griffeiihoofe v. Daiibuz the de- 
 claration alleged that the plaintiff was tenant of a farm to defendant for 
 a term of years, after the expiration of which there became due and 
 payable from defendant to the Ecclesiastical Commissioners money in 
 res|)ect of a tithe commutation rent, charged on the farm and the land, 
 which defendant, as owner of the farm, and entitled to the rents and 
 profits, was liable to have paid, and ought to have paid. Defendant 
 having neglected to pay it, the commissioners distrained for it a stack 
 of wheat of plaintiflF then lawfully on the farm and land, and afterwards 
 sold it, and defendant, though requested had not indemnified plaintifp. 
 The defendant pleaded that he was not liable to pay, nor ought to have 
 paid, and it was held by the Court of Queen's Bench that the issue 
 ought to be found for him, as stat. 6 & 7 Will. IV. c. 71, s. 67, provides 
 that nothing in the statute contained shall be taken to render any 
 person whatsoever personally liable to the payment of any such rent- 
 charge ; the land only is liable. The commutation rent-charge, as thus 
 settled, is simply a payment issuing out of the land, and by sec. 80 may 
 be deducted from the rent. The plaintiff had covenanted to pay such 
 rent-charge, and here endeavoured to charge the defendant with it on 
 the ground of personal liability, which is not created by the act. This 
 judgment was affirmed in the Exchequer Chamber, where Taylor v. 
 Zamira was cited for the defendant as an authority that the defendant 
 was bound to indemnify him. 
 
 The intention of tJie TitJie Commutation Acts is, that the lands on which 
 the cqij^ortiomnent of the tithe in each jKirish is cast, and these lands only, 
 shall be liable in respect of the tithe payable for any lands in the 
 parish ; and that lands on which no apportionment is cast, shall not be 
 liable to tithe ; and lands which on the agreement and apportionment 
 under the Tithe Commutation Acts (confirmed by the Tithe Commis- 
 sioners) are treated as ft-ee from tithe, cannot be afterwards made 
 subject to it {Walker \. Be nf ley). A lessee of tithes is liable on his 
 covenant to pay rent, notwithstanding the tithes have been commuted
 
 396 APrORTIONMEXT OF TITHES BY COMMISSIONERS. 
 
 for a rent-charge, his remedy being by the surrender of his lease under 
 the 88th section of 6 & 7 TT7//. IV. c. 71 {Taslcer v. Bidhnan). 
 
 Where there is evidence that a vicarage teas endowed with small tithes, 
 the vicar's right to them is established against all lands in the parish, 
 as to which no particular discharge is proved, although no small tithes 
 have ever been paid {Glee v. Hall). By the common law the rector has 
 a right to all such tithes as the vicar is not proved to be entitled to, and 
 the title of the vicar must rest either on direct proof of an endowment, 
 or on an endowment to be inferred by prescription or usage {Attorney- 
 General V. Ward). Tithes of beans and peas have been held to be com- 
 prised in the description of tithes of corn {ih.). 
 
 AVhere an enclosure act enacted that it should be lawful for the 
 commissioner to apportion the rent-charge in lieu of tithes upon such 
 portion, as he should think fit, of the lands of A. B., the Court of Queen's 
 Bench held that it was not necessary for him to specify in his award the 
 lands on ivliich the rent teas to be charged (WiUoughby v. Willoughby). 
 The above case principally governed the decision of the Court of 
 Common Pleas in S'ih'ester v. Bedford, and Bedford v. The Warden and 
 /Society of Si' f ton Coldfeld. By a local enclosure act (5 Geo. IV. c. 14) 
 tithes were abolished, and yearly rents imposed in lieu thereof, which 
 yearly rents it declared should be charged on the land, and should be 
 paid at the rectory-house. The rector, " in addition to all present 
 ])Owers for recovery of tithes and compositions," was to have " the same 
 powers and remedies for recovering the said yearly rents," when in 
 arrear, " as by common law or statute are provided and given to land- 
 lords for the recovery of rack-rent." Provision was made for the ap- 
 portionment of the rent-charge in case of the division of the lands, 
 which apportioned part was " to be recovered from the lands or heredi- 
 taments so charged therewith, or from the owners thereof, in such and 
 the same manner as the whole of the yearly corn rents " were thereby 
 made recoverable. The commissioner was to determine what yearly 
 sums, according to the aggregate annual amount, were equivalent to 
 the tithes of each proprietor's old enclosed lands within the parish, 
 which said yearly sums were to be charged upon the old enclosed lands 
 of the respective proprietors as yearly rents payable thereout. The 
 Court of Common Pleas held firstly, 2^eT totam Curiam, that the statute 
 did not authorise an action by the rector against the owner of inclosed 
 lands in his parish for the non-payment of such rent-charge ; that a 
 distress for the aggregate amount of a rent-charge imposed upon lands 
 acquired before and subsequently to the act, was illegal ; and secondly 
 {Coclcbnrn C.J. diss.) that a distress on the occujiier for the amount of 
 the whole rent-charge on all the lands in the parish belonging to the
 
 PRINCIPLE OF APPORTIONMENT. 397 
 
 same proprietor, though comprising lands not in tlic occupation of such 
 occupier, was a legal one. 
 
 The -person entitled to the rent-charge in lieu of tithes, who distrams 
 vnder the Tithe Act, 6 & 7 Will. IV. c. 71, s. 81, is not entitled to in- 
 demnity in lieu of double costs under 5 & 6 Vict. c. 97, s. 2, if such 
 person avows under 11 Geo. II. c. 19, s. 22, and the plaintiff discon- 
 tinues his action of replevin {Neumham v. Bever). 
 
 The princvple upon which an apportionment should he made was con- 
 sidered In re Appledore Commutation, where the valuer made an ap- 
 portionment which was objected to by landowners in the parish, and 
 such objectors were heard first by the assistant commissioners, who re- 
 ceived evidence for and against the objections, and then by the Tithe 
 Commissioners, according to sec. Gl. The tithes of corn and grain in 
 the parish of Appledore (part of which was woodland) were payable to 
 the rector, and moduses for all other tithes to the vicar, and a rent- 
 charge, in lieu of such tithes and moduses, had been awarded under 
 sec. 36 of 6 & 7 Will. IV. c. 71. Sir J. E. Honeywood, a landowner, 
 held ancient pasture land of the Dean and Chapter of Canterbury, by 
 lease, which forbade him to plough the land without their licence in 
 writing, for which he had never applied or purposed applying, but 
 lands of the Dean and Chapter within the same district had been 
 ploughed within living memory. The valuer in apportioning the rent- 
 charge under sees. 33 & 34, upon Sir John Honeywood's pasture lands, 
 assessed them with the vicar's rent-charge according to the modus, and 
 added a small portion of rent-charge. Is. per acre, to be paid to the 
 rector, as part of the gross rent-charge awarded to him, where it 
 seemed that the productive quality of the land admitted of its being 
 arable, and that there was a reasonable probability of its being tilled ; 
 but he made no additional assessment on the woodland, not considering 
 that a reasonable probability existed of that land becoming arable. The 
 commissioners confirmed the principle of the apportionment, and the 
 Court of Queen's Bench decided that a prohibition did not lie, as the 
 possibility of the land reverting to a different state of culture must be 
 taken into account in the apportionment ; and the commissioners must 
 make the best average they can. 
 
 The onus of proving tluit the land is hairen, in an action for not 
 setting out tithes, is on the defendant {Lord Selsea v. Potvell). The 
 seven years during which heath or waste ground which has lain barren, 
 and paid no tithes by reason of the barrenness, but which is afterwards 
 improved and converted into arable ground or meadow, is exempt from 
 tithe by 2 & 3 EduK VI. c. 13, s. 5, begin to run from the time when 
 some act has been done to make the land more productive than before
 
 398 EXEMrXTON FROM TITHE. 
 
 (Ross V. Smill>). In Hi/lrJiins v. MavgMn, cited by Eyre O.B. in Jones 
 y. Le David, it was held tbat land which from its exposed situation 
 would not LTOW corn without the expense of erecting stone walls to 
 protect it from the severity of the climate, is exempt. Land which is 
 of a good natural quality is not to be considered as "barren" withiu 
 2 & t E(hi\ VI. c. 13, but shall pay tithe immediately, although the 
 expense attending the breaking it up and liming it exceeds the return 
 made to the farmer in the several first years of cultivating it {Warwkk 
 V. Collins). The proper test of barrenness within this statute is, whether 
 the land requires extraordinary expense either in manure or labour to 
 bring it into a proper state of culture {Lord Sehca v. Povdl. 
 
 The enjoyment of land producing titheable matters, without payment 
 of tithe for the period prescribed by 2 & 3 Will. lY. c. 100 (an Act for 
 shortening the time required in claims of modus dmmandi, or exemp- 
 tion fi-om or discharge of tithes), if adverse and as of right, creates a 
 valid and indefeasible exeynpfion from and discharge of tithes. But the 
 nonpayment of tithes of a particular thing for such period, in respect of 
 lands for which tithes or other titheable produce have been paid within 
 the statutable period, does not operate as an exemption from the pay- 
 ment of the tithes of that particular thing (SalMd (clerk) v. Johnson). 
 The legislature by stat. 5 & 6 Will IV. c. 75, did away with the dis- 
 tinction in regard to turnips, expressly providing that turnips severed 
 and eaten on the ground should be titheable in the same manner 07ilg as 
 if eaten without being severed. And the Court of Queen's Bench 
 decided in Fisher v. Burrel that milk drawn from the cow by hand, 
 and given to the calf before it becomes titheable, is exempt from tithe, 
 as well as milk sucked by the calf. 
 
 The enactment of the Tithe Commutation Amendment Act (9 & 10 
 Vict. c. 73, s. 19), that everg instrument purporting to merge any tithes, 
 and made with the consent of the Tithe Commissioners, shall be abso- 
 lutely confirmed and made valid both at law and in equity in all 
 respects, is not limited to cases in which the person executing the 
 instrument has a title to the tithe, but operates as well where such 
 person has no estate in the tithe, as where his estate is insufficient to 
 effect the merger {Walker v. Bentley). The intention of the legislature 
 was to preclude all questions of merger of tithe in all cases where 
 declarations of merger had been made with the consent of the Tithe 
 Commissioners, leaving the parties affected by an erroneous declaration 
 to their remedy against the party making it ; and such being the inten- 
 tion, the merger is effected, although the sanction of the commissioners 
 has been erroneously given {ih.). 
 
 A commissioner has by his award under the Tithe Commutation Act
 
 AWARD BY COMMISSIONERS. 399 
 
 C & 7 Will. IV. c. 71) to fix tJir amount of rent-charge pnyalle in lieu of 
 tithe, and, for that purpose, to decide upon the titheability of lands ; 
 but he has no jurisdiction to decide thereby who is the party entitled 
 to receive the rent-charge {Edwards v. Bunl)iiry). And on a feigned 
 issue under sec. 46, the landowner cannot deny that the lands were 
 subject to the payment of tithe to B., for the purpose of raising tlie 
 question of title, as between B. and a third party {ih.). 
 
 The award to he made hy Tithe Commissioners under 6 & 7 WilL IV. c. 
 71, is for the purpose only of settling disputes between tithe-otvner and 
 land-owner, and not of deciding questions of title between rival claim- 
 ants of tithe. Hence where tithes of agistment were claimed by both 
 rector and vicar, and the latter called upon them to determine such 
 claims before making their award, it was held on a return to a manda- 
 mus that the commissioners were not bound so to determine, the difier- 
 ence not being one within sec. 45, by which the making of the award 
 was hindered ; but they would do rightly in awarding rent-charge for 
 the tithes, including that of agistment, to the parties respectively in 
 possession, leaving them to litigate the title subsequently, as they 
 might do under sect. 72, notwithstanding the award, and that no state- 
 ment appearing as to the receipt of agistment tithe by any party, the 
 commissioners might properly consider the rector as the person in 
 actual possession within sect. 12 {Reg. v. Tithe Commissioners). TJie 
 confirmed atrard, under the Tithe Commutation Acts (6 & 7 Will. IV. 
 c. 71, amended, &c., by 7 117//. IV. and 1 Vid. c. 69 ; 1 & 2 Vict. c. 
 64 ; 2 & 3 Vict. c. 62 ; and 5 & 6 Vict. c. 54), though final as between 
 the tithe-owners and tithe-payers, does not exclude from farther inves- 
 tigation a case between the tithe-owners themselves, in which there 
 was, before the award, a just title to tithes, which by accident and 
 mistake was not brought forward until after the award was made. 
 Thus where by an award made with the concurrence of A., the patron, 
 the whole rent-charge was made payable to B., the rector, A. being at 
 the time entitled to one-half of the corn tithes, but ignorant of his 
 rights, he was held entitled to relief in equity as against B. {Clarice v. 
 Yonge). But where at the time of the making an award of a rent- 
 charge in lieu of certain tithes under the act, a suit in equity was 
 pending for an account of the same tithes, in which the question was as 
 to the title of the claimant to receive the tithes, the Court of Queen's 
 Bench held that the validity of the award was not thereby affected, 
 such suit not being one " touching the right to any tithes," and 
 " whereby the making of the award sliall be hindered," within the 
 meaning of the 45th section of the 6 & 7 Will IV. c. 71 {Sliepherd y. 
 Marquis of Londonderry).
 
 400 DISPUTE AS TO PARISH BOUNDARY. 
 
 Stat. 6 & 7 Will IV. c. 71, s. 45, empowering the Tithe Commis- 
 siouers to decide any question touching " the houmlary of anij lands,'' 
 does not authorize thera to settle by their award a dlspide as to the 
 houndanj of parishes (In re YstradginJais Commutation). Nor can they 
 do so imder the powei's granted by stat. 7 Will lY. and 1 Vict c. 69, 
 B. 2, even at the request of two-thirds in value of the landowners, if the 
 boundary of the parishes be also a boundary between counties ; for by 
 stat. 2 & 3 Vict. c. 62, s. 37, this and the two prior acts are incor- 
 porated ; and sect. 34 of stat. 2 & 3 Vict. c. 62 forbids the coijimis- 
 sioners to adjudicate on a boundary which divides counties as well as 
 parishes (//>.). And quaere whether a parochial agreement for a com- 
 mutation rent-charge can legally be made and confirmed under stat. 
 6 & 7 Will IV. c. 71, ss. 17, 27, &c,, while a dispute exists as to the 
 boundary of the parish (ih.). The award of an Assistant Tithe Com- 
 missioner, employed to settle the boundaries of a township on request 
 of the landowners, under 7 Will. IV. and 1 Vict. c. 69, s. 2, should 
 state the district to be one of which the tithes are " to he commuted," 
 and the request to have been signed " at a parochial meeting called for 
 that purpose," "according to the provisions of" stat. 6 & 7 Will. IV. 
 c. 71, s. 17, referred to by 7 Will. IV. and 1 Vict. c. 69, s. 2 (In re Dent 
 Commutation). An award under the latter section can be made only 
 where the tithes are " to be commuted," and there is no jurisdiction 
 under it, if the tithes have been commuted already {ib.). And in a case 
 under it, the commissioners may ascertain the existing boundary of a 
 parish, though it be also that of a county, or of a copyhold in a manor, 
 the lord of which does not consent to the inquiry {ib.). The interpre- 
 tation clause, sec, 12 of 6 & 7 Will IV. c. 71, with which 7 Will IV. 
 and 1 Vict. c. 69, is incorporated, enacts that the word ''parish " shall 
 include "township " (ib.). 
 
 By stat. 2 & 3 Vict c. 62, s. 34, which defines the mode of proceeding 
 to ascertain boimdaHes, the commissioners are empowered "to ascertain, 
 adjust, set-out, and define the ancient boundaries," "or draw and define 
 a new line of boundary as they may see fit " ; and the boundary line so 
 ascertained or newly defined " shall thenceforward be the boundary line 
 of and between such parishes." Whether they ascertain old or set out 
 new boundaries, the word "thenceforward" applies ; and the reasonable 
 construction is, that the award in this respect is to be conclusive from 
 thenceforward only, leaving past transactions and the state of things on 
 which they depended to be ascertained as under the former law {Reg. v. 
 InJuiUtants of Madeley): 
 
 An award by the Tithe Commissioners under 1 Vict c. 69, and 2 & 3 
 Vict c. 62, as to IM boundary of a jmrish, is not conclusive as to ivhat
 
 ACTIONS AGAINST TITHE COMMISSIONERS. 401 
 
 was the 'boundary inior to the time when the award was made {ll>.) ; and 
 see 7i(?a; v. St. Mary, Bury St. Edmunds. A dispute as to the title to 
 tithes between the rector and the yicar is not "a difference whereby 
 tlie making of the award is hindered " under G & 7 Will. IV., c. 71, 
 s. 45, and which the commissioners are bound to decide before making 
 their award ; and an award of a rent-charqe in lieu of certain tithes to 
 which it states that the rector is entitled, does not conclusively vest the 
 title to those tithes in the rector, and the vicar may notwithstanding 
 try his right to the substituted rent-charge {Reg. v. Titlie Commissioners). 
 Where on a hearing before the Assistant Tithe Commissioner, appointed 
 to ascertain the amount of a commutation rent-charge, under statute 6 
 & 7 Will. lY. c. 71, a landowner denied the right of B., an alleged 
 tithe-owner, to rectorial tithe of his lands, asserting that they were 
 tithe free, and the Assistant Tithe Commissioner decided that B. was 
 owner of the rectory, and as rector entitled to the said tithe — it was 
 held by the Court of Queen's Bench, on a feigned issue under section 
 4C, that the landowner could not deny that the lands were subject to 
 the payment of tithe to B. for the purpose of raising the question as 
 between B. and a third party (Edwards v. Banbury). 
 
 As to actions against Tithe Commissioners, &c., under 6 & 7 Will. IV. 
 c. 71, s. 94, see AcJcland v. Buller. By the Tithe Commutation Act, 6 
 & 7 Will. IV. c. 71, s. 46, any person claiming an interest in lands or 
 tithes who shall be dissatisfied with any decision of the commissioners 
 (deciding upon an amount above £20) may, within three months after 
 notice to him of the decision, bring an action by feigned issue to dispute 
 the decision. AVhere, in proceedings before a Tithe Commissioner 
 under 6 & 7 Will. IV. c. 71, s. 45, several moduses are set up in res]3ect 
 of distinct farms, and the annual value of the payment to be made 
 in respect of each farm is less than £20, his decision is final under 
 section 46, notwithstanding the whole is in the hands of the same 
 proprietor, and the aggregate yearly value exceeds £20 {Tomlinson, 
 clerk, V. Burgliey). 
 
 The yearly value of the payment to be made under the award by the 
 individual ap^pellant must exceed £20, to entitle Iiim to appeal {Flanders 
 V. Bunbury and Matthews v. Leapingwell). And semble, that in esti- 
 mating such value he is not entitled to take into account lands held by 
 him as. tenant in common with another person who is no party to the 
 appeal {ib). The " payment to be made or withholden according to 
 such decision," is the difference between the modus claimed aud the 
 asserted value of the tithes in kind, payable under the award {ib.) 
 Reputation is not admissible evidence of a farm modus {Pritchett v. 
 Honeybourne). And in an action by a rector for tithes, where the
 
 402 PROPER FARM MODUS. 
 
 question is, whether a modus exists of a certain sum of money for a 
 particular farm in a township within the parish, the plaintiff may 
 inquire whether other farms in the same township are not subject to 
 the same payment for the purpose of showing that such payments can- 
 not be a farm modus {BlundcU v. Howard). 
 
 A modus and its incidents were thus described by KindersUy V.C., 
 in Clmpneys x. Buchan : " A proper farm modus is a 7nodus payable in 
 lieu of the tithes in kind of a particular parcel of ground. A modus 
 decimandi properly means a particular mode or manner of tithing, which 
 custom or prescription has substituted for the ordinary common law 
 mode of rendering tithes in kind. A modus, indeed, can only exist by 
 virtue of a custom or prescription ; but it is a custom not creating, but 
 modifying and altering, the original common law liability to pay tithe. 
 AVhenever there is a valid inodus, the law presumes that at some period 
 before the time of legal memory tithes were payable in kind in the 
 ordinary common law manner, and that by some ancient composition, 
 or agreement, or practice, dating before the time of legal memory, some 
 other manner of tithing became substituted for it, which was at the 
 time a fair and reasonable equivalent for the tithe payable by the com- 
 mon law. The modus does not create the liability to tithe, so as that if 
 there were no modus there would be no liability to tithe ; on the con- 
 trary, the existence of a modus pre-supposes the original liability to 
 tithe ; so that if there were no modus, tithes would be payable in kind, 
 according to the common law. The term modus decimandi is therefore 
 properly applicable to those things only which are titheable at common 
 law, and not to things which de communi jure are not hable to tithe at 
 all. Whenever tithe is payal)le for a thing which de communi jure is 
 not liable to tithe, this can only be by virtue of a special custom which 
 creates the original liabihty to tithe ; so that, if there were no custom, 
 there could be no liability to tithe. And the same custom which 
 creates the liability to tithe must also prescribe what is payable for the 
 tithe, and how its amount is to be ascertained, and in what manner the 
 tithe is to be rendered or paid." 
 
 If the incumhent against whom an award is made in favour of a modus 
 dies within the three months, having had notice in writing of the decision 
 without having brought an action to dispute it, his successor cannot 
 do so after the three months have expired ; and if he does, the Court 
 will set the proceedings aside on motion {Homfray, clerk, v. Scrope). 
 A claim of modus decimandi from time immemorial may be pleaded, not- 
 withstanding the statute 2 & 3 Will. IV. c. 100, and may be proved by 
 the same evidence as would have been sufficient before the statute ; but 
 Buch claim will be liable to be defeated by showing payment of tithes
 
 ACTION FOR TREBLE VALUE OF TITHES. 403 
 
 in kind at any time within leg^al memory {Earl of Stamford v. Danhar) 
 Where a sum of money has been expressly paid and received during the 
 whole statutable period mentioned in 2 & 3 Will. IV. c. 100, s. 1, as a 
 modus or composition for the tithe only, such payment renders the 
 modus valid and indefeasible, although the abandonment by the rector 
 of certain rights of common originally formed part of the consideration 
 for the payment ifToymbee v. Broiun). 
 
 In order to take the payment of a modus for the statutable period out of 
 the operation of this section, by virtue of the concluding part of it, it 
 must be made by a consent or agreement in writing for the payment of 
 that very modus, during all or some part of that time, and that by a 
 person who could otherwise have objected to the payment ; for by the 
 words of the statute, the payment for the statutable period must be 
 made by consent in writiny expressly yiven for that purpose {ih). 
 
 It was held by the Exchequer Chamber, in Barker v. The Tithe Com- 
 missioners confirming the judgment of the Court of Exchequer, that 
 where a claim of a modus or other exemption from tithe is preferred 
 before the Tithe Commissioners, under 6 & 7 Will. lY. c. 71, who de- 
 cide against the claim set up, the party is not precluded from setting up 
 another clai7u to a different modus on the same lands, unless the commis- 
 sioners have made their final award under the act, even though a feigned 
 issue delivered under the 46th section be pending to try the validity of 
 the first modus. 
 
 In an action of debt on 2 & 3 Edw. VI. c. 13, s. 1, for treble value of 
 tithes carried away before setting out the same, the defendant should not 
 plead several pleas of nil debet by statute as to several parts of the lands 
 on which the titheable matters were produced, but should plead one 
 plea of nil debet by the statute to the whole (Graburn v. Brown). And 
 he will be obliged to give a particular of all grounds of exemption, modus, 
 &c., intended to be insisted on at the trial {ib.). Statute 5 & 6 Will. IV. 
 c. 74, s. 1, extends to the prohibition of actions of debt for treble value 
 under 2 & 3 Edw. VI. c. 13, s. 1, for not setting out tithes where the 
 annual value is less than £10 {Peyton v. Watson). As the account for 
 tithes is merely incidental to the rector's legal title, a court of equity 
 cannot interpose in his favour until he has established his right at law 
 {3Iarquis of Waterford, appel. v. Knight, clerk, respt.). A court of 
 equity will compel discovery and production of documents in aid of pro- 
 ceedings at law to try a disputed right under the Tithe Commutation 
 Act, notwithstanding special pi'ovisions are contained in that act for 
 those purposes {Morris v. Diike of Norfolk). A defendant is entitled to 
 judgment, as in case of a nonsuit, where the plaintiff has allowed two 
 assizes to elapse without proceeding to trial, after issue joined on a 
 
 D D 2
 
 404 DISQUALIFICATION BY INTEEEST IN VALUER. 
 
 feigned issue, under the Tithe Commutation Act, 6 & 7 Will IV. c. 71, 
 s. 46 {S(Oidi/s V. Maijor, Ar., of Bevrrhi/). Error does not lie on a judg- 
 ment of a superior court upon a feigned issue brought under such 
 section (Thorpe v. Ploirdcn). Since 5 & 6 Will. IV. c. 74, if any tithe, 
 oblation, or composition not excepted in 7 & 8 Will. III. c. G, or exceed- 
 ing £10 yearly value, due from any one person, is in arrear, it must be 
 proceeded for before two justices. And if the title of the claimant, or 
 liability of the party sought to be charged is undisputed, two years' 
 arrears may be there recovered ; whereas, if such title or liability is 
 denied viva voce before the justices, or at any time in wi'iting, the 
 claimant may proceed by suit in equity, and recover six years' arrears 
 {Robinson, clerk, v. Purdajj). 
 
 Expenses incurred by the emploijmejit of mi attorney by the landoivners 
 of a parish to conduct the proceedings toivards a commutation of the tithes 
 of the parish, under 6 & 7 Will. IV. c. 71, are not "expenses of or in- 
 cident to making the apportionment" within the 75th section of that 
 act, and the attorney may therefore recover the amount of his bill for 
 such services in an action against the landowners who were parties to 
 employing him {Ilinchcliffe v. Armistead, clerk). 
 
 Disqualification by interest in a valuer was the subject of The Lan- 
 caster and Carlisle Railway Company v. Heaton. Here, under a local 
 tithe commutation act (5 Geo. IV. c. 28), on application made to the 
 quarter sessions, that court was to appoint " one or more fit and proper 
 ])ersons not interested in the said tithes or dues" to value the lands in 
 a certain township, with a view to the apportionment between different 
 landowners of the corn rent-charge substituted in lieu of the vicarial 
 titlies ; and the sessions ap]5ointed as valuer a shareholder in a railway 
 which passed through the township in question. No steps were taken 
 to set aside the order of sessions ; but afterwards the collection of the 
 rent-charge, as assessed on the valuation, was resisted. The Court of 
 Queen's Bench held, in an action of replevin, that even if the valuer ap- 
 pointed was an interested person within the meaning of the local act, 
 the sessions had jurisdiction to make the appointment, and that, at all 
 events, the validity of that order could not be questioned in that way ; 
 but semble, that he was not disqualified by interest. 
 
 And where the person appointed to act as tithe valuer was required 
 before acting to take and subscribe an oath in the words following : — 
 " I, A. B., do sicear faithfully to execute the powers, dr., so help me God," 
 it was held by the Court of Queen's Bench that a person who had sub- 
 scribed an oath in which the words " So help me God" were admitted, 
 had substantially complied with the statute (ib.). 
 
 It was decided by the Court of Queen's Bench, in Rey. v. GoodcMld
 
 ASSESSMENT OF TITHES. 405 
 
 and Pif.g. v. Lamb {Coleridge J. diss.), that in assessing a mnmutation 
 rent-charge of a benefice to the poor' s-rafe, dednctions, are to be allowed 
 in respect of the expenses of collection, including law expenses, and 
 losses by ultimate non-payment ; but no allowance is to be made for the 
 personal services of the incumbent, in discharging the duties of his 
 cure. The principle of such assessment is, that the rent-charge is to be 
 assessed, like all other property, according to what it might be reason- 
 ably expected to let for from year to year ; but beyond allowances for 
 the expenses of collection, law expenses, and bad debts, a deduction by 
 way of tenant's profits is not necessarily to be made. The poor's-rate is 
 to be deducted, and this though the composition, before commutation, 
 had been calculated on the principle of being paid free from poor's-rate, 
 and the rent-charge had been fixed with an addition in respect of this 
 circumstance. Tenants' property-tax is to be deducted, but not land- 
 lord's property-tax or land tax. First-fruits and tenths (and other eccle- 
 siastical dues, if any, of the same character) are to be deducted in the 
 proportion which the rent-charge bears to the whole amii proventus of 
 the living. An allowance is also to be made of any sum contributed by 
 the incumbent towards a district chapel in the parish, if not a mere 
 voluntary contribution ; and a reasonable allowance is also to be made 
 for the curate's stipend, where the curate is not employed as the mere 
 substitute of the incumbent, but is required by law, in addition to the 
 incumbent from the population or value of the living, or where, if not 
 required by law, the wants of the parish make his services necessary in 
 addition to those of the incumbent properly discharged. 
 
 Thejioiccr given by stat. 1 & 2 Will IV. c. 45, s. 21, /o annex apart 
 of the tithes or oilier annual revenues belonging to a rectory or vicarage 
 to a district church within the parish, authorises the annexation of part 
 of an annual payment in lieu of tithes {Hughes v. Denton) ; and 
 although by 19 & 20 Vict. c. 104, s. 14, certain districts are made 
 separate parishes for ecclesiastical purposes, they still remain districts 
 only for other purposes ; so that a district to which this section is ap- 
 plicable, is still capable of receiving, as such, an annexation of a portion 
 of the annual revenues of the principal church, under stat. 1 & 2 Will. 
 lY. c. 45, s. 21 {ib.). 
 
 Eent-charge on hops.— Viider the Tithe Commutation Act, after a 
 commutation of the tithes of a parish, an allotment being made under 
 an inclosure act " of common and waste land," and part of the land so 
 enclosed being turned into a hop-ground, it was held by Cockburn C.J., 
 Blackburn J., and Mellor J., that as the tithe on the land in question 
 had been extinguished, it had been commuted, and that it was not 
 material that it had never been tithed, for it was titheable, and the
 
 406 JURISDICTION OF COMMISSIONER. 
 
 commutation was in respect of liability to tithe, not of actual payment 
 of tithes, and therefore they gave judj^ment for the defendant. Bnt per 
 Wighiman J., there was no commutation of tithes in respect of this land, 
 there being, in fact, nothing to commute, tithes having never been paid 
 in respect thereof {Trimmer v. Walsh). 
 
 Liahilitij of r en f -charge to poor-rates. — The incumbent of a district 
 parish, created under the New Parishes Acts, 1843 and 185G, is not 
 liable to poor-rates, in respect of a yearly rent-charge, payable out of 
 the tithe rent-charge of one of the parishes out of which the district 
 parish is created (Beg. on jjrosecufion of Tollcshunt Knights, resps. v. 
 Hev. W. H. Friend, appt.). 
 
 A commutation tithe rent-charge is liable to a general rate and 
 lighting-rate levied under Metropolitan Act (18 & 19 Vict. c. 120, s. 
 161). Semble that a commutation tithe rent-charge is not liable by law 
 to contribute to a sewers rate (Reg. v. Goodchild and Lamb). 
 
 Grantee of rent-charge liable for mcome-tax. — The grantee of a rent- 
 charge is the person bound to pay the income-tax due upon such 
 rent-charge (Festing v. Taylor). 
 
 Jurisdiction of commissioner. — By a private Act of Parliament passed 
 in 1762, for carrying into eflFect an agreement between the landowner 
 and rector for the commutation of tithes on certain lands in the parish 
 of W., it was declared that certain rents therein specified should be 
 vested in the rector, in lieu of and as full compensation for all tithes of 
 corn, grain, hay, wool, lambs, and all other tithes whatsoever, except as 
 after mentioned, arising from all or any of the lands in the said parish, 
 save and except marriage, churching, and burial-fees, " providing that 
 nothing in the act should prejudice the right of the said rector or his 
 successors to any marriage, churching, or burial-fees, nor the right or 
 tithe and customary stocking" in certain specified lands, "the modus in 
 the groves and ancient closes adjoining to the town, and all other petty 
 and personal tithes not herein mentioned and relinquished, all which the 
 said rector reserves, and they are hereby reserved to him and his suc- 
 cessors in full right and in as ample manner as they have always been 
 enjoyed. The assistant tithe commissioners having decided that the 
 said lauds called " ancient closes " were not exempt from tithes ; it was 
 held on motion for a prohibition, that the tithes of the " ancient closes " 
 were not commuted or extinguished by the private act of 1762, and 
 therefore the jurisdiction of the commissioners was not taken away by 
 sec. 90 of the Tithe Commutation Act, 6 & 7 Will. IV. c. 71. Semble 
 that even if the tithes of wool and lamb were not included in the modus 
 reserved to the rector, and were therefore extinguished by the act of 
 1762, such practical extinguishment of tithes arising out of the lands
 
 EATING OF TITHE RENT-CHARGE. 407 
 
 would not satisfy section 90, so as to deprive the conimmissioners of 
 jurisdiction {Re Wmtringham Tithes ex park Lord Carrington). 
 
 ^' Outgoings'' include land-tax and commutation rent-charge. — On tlie 
 construction of an agreement between landlord and tenant for the 
 lease of a farm for a term of years at a yearly rent of £40, payable 
 quarterly, *' free of all outgoings." It was held by Stuart Y.C. that 
 the word "outgoings" did not include the land-tax and tithe commu- 
 tation rent-charge. The decision was reversed by Lord Chancellor 
 Campbell, who observed : " Mr. Hobhouse, for the plaintiflF, mainly 
 relied upon Cranston v. Clarke (Sayer 78), but this authority was out- 
 Aveighed by the other authorities which had been cited, particularly 
 Bradlury v. ^YrigM (2 Doug. 624), and Bennett v. Womeclc (7 B. & C. 
 629, and 6 L. J. (N. S.) Q. B. 175). The certificate must, therefore, 
 be varied by making the rent payable free of land-tax and tithe com- 
 mutation rent-charge {Parish v. Sleemcm). 
 
 Occupier of titlw rent-charge compelled or voluntarUg appointing curate 
 may deduct salary from rateable value of rent-charge. — Where two 
 parishes, each separately supporting its own poor, and having each its 
 own church, have been immemorially united as one ecclesiastical bene- 
 fice, and in order to the due performance of the clerical duties of his two 
 parishes the incumbent necessarily requires tlie assistance of a curate — 
 in assessing his tithe commutation rent-charge in one of the parishes to 
 the poor-rate the incumbent is entitled to a deduction in respect of the 
 salary which he pays to the curate. The Court thought that the case 
 was not distinguishable from Reg. v. Goodchild (1 El. B. & E. 1, & 27 
 L. J. (IST. S.) M. C. 233), which decides that if a rector being entitled to 
 a tithe rent-charge is assessed to the poor-rate as occupier of the rent- 
 charge, and if he can be compelled to appoint a curate, or if acting 
 under a proper sense of religious duty he voluntarily appoints a curate, 
 the salary of the curate ought to be deducted in estimating the rateable 
 value of the rent-charge; the distinction put being such a case, in 
 which " the incumbent is non-resident, or, being resident, from sickness, 
 infirmity, or any less creditable cause," employs a curate to perform his 
 duty. That decision, therefore, decides the present case in favour of the 
 appellant. It is conceded that the bishop could interfere and compel 
 the appointment of a curate ; and even were it not so, it cannot be dis- 
 puted that, owing to the area of the two parishes, it is impossible that 
 the proper number of services could be performed by the incumbent 
 without assistance ; and therefore the case comes within one or other of 
 the alternatives in which, according to Reg. v. Goodchild, the curate's 
 salary ought to be deducted {Williams, appt. v. Overseers of Llangeinwen 
 resps.).
 
 40 S LESSEE OF TITHE RENT-CHARGE. 
 
 Perpetual payment to inruml)cnt of new district not to he deducted in 
 assessififf tithe rent-charge to poor-rate. — The rector of a parish, who 
 pursuant to the statutes in that behalf, has charged the tithe rent- 
 charge with the perpetual payment of an annual sum towards the 
 stipend of the incumbent for the time being of a new ecclesiastical dis- 
 trict, formed, under the statutes, of part of the parish, is not entitled to 
 have the sum so charged deducted in assessing the tithe rent-charge to 
 the poor-rate. 
 
 And /w Curiam : " It is true that it has been held in the case of Reg. 
 V. Goodchitd that an incumbent entitled to rent-charge, who employs a 
 curate either because he is compellable by the bishop to do so, or 
 because the magnitude of the case properly requires it, is entitled to 
 have the stipend of such curate deducted from the assessable value of 
 the tithe rent-charge. But we are of opinion (as indeed we intimated 
 in the recent case of WlieeJer, appt. v. Overseers of Burmington (31 L. J 
 (N. S.) M. C. 57) that the principle of the decision in Reg. v. Goodchitd 
 ought to be carried no further. We think it ought not to be applied to 
 a case where the owner of the tithe rent-charge voluntarily parts with 
 a portion by creating a rent-charge on it to endow another minister. 
 Certain lands in the parishes of Long Bevington and Foston in the 
 county of Lincoln were enclosed under a local act, and the commis- 
 sioners allotted certain lands to the rector, which were subject to a 
 corn-rent payable to the vicar " clear of all parochial taxes, rates, dues, 
 and assessments whatever : " it was held by the Court of Common Pleas 
 that the occupiers of the land charged with the payment of the corn- 
 rent, were not entitled to have the amount of such corn-rent deducted 
 in estimating the net annual value of their property, liable to the poor 
 rate under 24 & 25 Vict. c. 103, s. 15. {HackettY. the Churchwardens 
 and Overseers of Long Bevington, 33 L. J. (N. S.) M. C. 137. Laurence, 
 appt. V. Overseers of Totteshnnt Knights, reeps.). 
 
 Lessee of tithe rent-charge not entitled to deduct stipend to curate. — 
 The lay impropriators of the tithes of the parish of B. granted a lease of 
 their tithe rent-charge, at a nominal rent, to the appellant for twenty- 
 one years, if he should so long remain the vicar of the adjoining parish 
 of W., he covenanting to serve the cure of B. either by himself or a 
 curate. In order to the proper discharge of the duties of the two 
 parishes, it was necessary to employ a curate for B., and it was held that 
 in assessing the ajjpellant to the poor-rate of B., as occupier of the tithe 
 rent-charge, he was not entitled to any deduction in respect of the 
 stipend which he paid the curate. And per BlacJrburn J. : *' If the facts 
 were that the parishes of Wolford and Burmington were one benefice, 
 and that Mr. Wheeler was compelled to employ a curate to assist him
 
 ASSESSMENT OF OCCUPIER OF TITHE RENT-CHARGE. 409 
 
 in the proper discbarge of the duties of the two churches, then he could 
 claim exemption within the principle laid down in Reg. v. Goodchild 
 (1 E. B. & E. 1, and 27 L. J. (N. S.) M. C. 233). But on the facts as 
 they appear in the case, the tithes or tithe rent-charge of Burmington 
 are held by Mr. Wheeler, not as having been instituted to the vicarage 
 of Wolford, but because he has become lessee of them from Merton 
 College. He has become lessee, and he pays rent in services instead of 
 money. If he paid in money, he could not deduct the amount. It is 
 enough to say that this is the case of a lessee of a tithe rent-charge, and 
 not at all a case to which Reg. v. Goodchild applies ( Wheeler, appt. v. 
 Overseers of Burmington, resps.). 
 
 Assessment of occiqner of tithe rent-charge. — The Archbishop of Can- 
 terbury, being owner of the impropriate rectory and tithe rent-charge 
 of the parish of H., and of a piece of land thereunto appertaining, 
 granted (under the Augmentation Acts 29 Car. 11. c. 8, and 1 e<e; 2 Will. 
 TV. c. 45) to the perpetual curate for the time being of an annual rent 
 of £40, to be charged upon and yearly issuing out of the said rectory, 
 tithe rent-charge and land ; and he afterwards leased the same to C for 
 21 years, G. yielding and paying yearly to the archbishop £9 IS^., and 
 also £6 16s. for redeemed land-tax, and to the perpetual curate for the 
 time being of T. the said sum of £40. It was held that, in assessing Gr. 
 to the poor-rate of H., as occupier of the tithe rent-charge, G. was not 
 entitled to any deduction in respect of the yearly payment of £40, such 
 payment being so much rent paid for his occupation of the tithe rent- 
 charge, and not a charge upon him as occupying tenant, nor so much 
 tithe rent- charge withdrawn from his occiipatiou. And per Blaclchurn J : 
 " The j)erson rated ought to be rated according to the value of the rate- 
 able property which he occupies, and the rateable value is the rent at 
 which the same might be reasonably expected to be let for fi'om year to 
 year. What does the appellant occupy ? He occupies the whole of the 
 property comprised in the lease, viz., the tithe rent-charge and the half- 
 acre of land. That the curate of Tliannington is not the occupier in 
 respect of the £40 is shown by Frend v. Tolleshunt Knights (28 L. J. 
 (N. S.) M. C. 169). That seems to me a sound decision, and it shows 
 that the party charging, or his assignee or tenant must occupy the 
 whole hereditament though charged" {Reg. v. W, J. Groves, clerk).
 
 410 DEFINITION OF LEASE. 
 
 CHAPTER XIIT. 
 
 LANDLORD AND TENANT. 
 
 A lessee even for half-a-tjear is considered a tenufit for years, a year 
 being the shortest term which the law notices. In the absence of any 
 evidence to the contrary, the tenancy under a written agreement for 
 the liire of a farm at a yearly rental, from year to year, must be taken 
 to begin from the day on which that agreement professes to have been 
 executed ; and that question is for the judge and not for the jury 
 {Bishop V. Wraith). ^'Demise, grant, and to farm-let,''' are the usual 
 words in a lease ; but whatever words amount to a grant are sufiicient 
 to maVe a lease (Co. Litt. 45 ; 2 Black. Com. 318). It was decided in 
 Doe deni. Morgan v. PowelJ, that whether an instrument is to operate 
 as a lease or an agreement depends upon the intention to be collected 
 from it, and from the natm'e and condition of the subject-matter, with- 
 out reference to the extrinsic circumstances or subsequent acts. And 
 2)er Tindal C.J. : " The mere use of tlie words ' I agree to let.' does not 
 make the instrument an agreement only, provided the rest of the words 
 show an intention to create an actual demise, but they throw a doubt 
 upon the intention." 
 
 In Doe dem. Philips v. Benjamin, the plaintiff entered into an agree- 
 ment, of December 13th, 1834, with the defendant, who was his yearly 
 tenant, in the middle of a half-year, whereby he agreed to let the pre- 
 mises to him for fourteen years, determinable upon notice at the end of 
 seven years, at a certain rent, a lease to be drawn upon the usual terms, 
 upon which the defendant agreed to take them, and it was held that 
 this constituted a lease. And ^;er Curiam : " The words •' agree to let ' 
 have long been held the same as words of actual letting. It is said here 
 that the agreement for a future lease is inconsistent with a present 
 demise ; and it would have been as well if that distinction had been 
 upheld from the first : but it has been long settled that that circum- 
 stance alone will not reduce what would otherwise be a present demise 
 to a mere agreement. As to the provision that the lease shall contain 
 the usual covenants, Mansfield C.J. certamly held in Morgan v. Bissell 
 that such a description of the intended lease was uncertain and incon-
 
 AGREEMENT TO LET. 411 
 
 sistent with the supposition of a present demise ; but in later cases a 
 different opinion has prevailed. As to the construction, Staniforth v. 
 Fox is a case very near this in words and in principle." 
 
 Upon an inquisition on a writ of elegit, proof of possession or receipt 
 of the rent of the land by the party is prima facie evidence of the title, 
 and where a jury, notwithstanding such evidence, found that the party 
 had no lands, the Court of Common Pleas set aside the finding, and 
 directed the sheriff to take a new inquisition {Barnes v. Harding). A 
 tenant hy elegit Ms a right to distrain without attornment {Lloyd v. Davies). 
 An attornment by a tenant of land to a receiver appointed by Chancery 
 to collect the rents, and payment of rent to such receiver, create a 
 tenancy by estoppel between the tenant and receiver, but do not enure 
 to enable the person who is found ultimately to have the legal title to 
 the land to treat the tenant as his tenant, and to distrain for rent 
 {Evans v. Matthias). Where a mortgagee gave notice to the tenants of the 
 mortgaged property not to pay their rents to the mortgagor^ lut to himself, 
 it was held by Sir J. Romilly M.R. that he was liable to the mortgagor 
 for any consequential loss, as it is his duty either to take possession 
 himself or to leave the mortgagor in possession {Heale v. M^ Murray). If 
 a lease is in the hands of a tenant, and it appears that no counterpart 
 can be found, the Court will permit the landlord to inspect and take a 
 copy of it {Doe dem. v. Slight). 
 
 The terms of a lease may be proved by oral admissions {Smith v. 
 Howard)', and if a landlord gives a receipt for rent last due, it is presum- 
 able that all former rent has been paid (Gilb. Ev. 157). 
 
 He who agrees to let agrees to give possession, and not merely to give 
 the chance of a law-suit; and if he fails to do so, the lessee may recover 
 damages against him, and need not bring ejectment {Coe v. Clay). On 
 an agreement for a lease " with all usual and reasonable covenants," a 
 covenant not to underlease or assign is implied where the custom is not 
 generally against it {Follcingham v. Croft). In the Exchequer Chamber, 
 on error from the Court of Common Pleas, it was held that the word 
 ''demise" in a lease implies a covenant for title and a covenant for quiet 
 enjoyment ; but both branches of such implied covenant are restrained 
 by an express covenant for quiet enjoyment {Line v. Stejjhenson). In 
 every contract for the sale of an existing lease there is an implied under- 
 taking by the seller (if the contrary be not expressed) to make out the 
 lessor's title to demise ; and without showing such title, the seller 
 cannot maintain an action at law against the buyer for refusing to 
 complete the purchase {Souter v. Drake). But, on a contract for the sale 
 of an agreement for a lease it is not an implied condition that the lessor 
 has power to grant the lease {Kintrea v. Preston). Alderson B. tlius
 
 4H TENANCY FROM YEAR TO YEAR. 
 
 pointed out the distinction : " In every contract for the sale of a lease 
 the agreement is to sell an interest in the land ; that is not so in the 
 case of the sale of an agreement. The question is one which depends 
 upon the words of the contract. It has been decided that the grant of 
 a lease means the grant of an absolute right of enjoyment for a certain 
 number of years ; and there is therefore on the sale of a lease an implied 
 term that the vendor shall show the lessor's title. Here there is merely 
 the purchase of an agreement. Whatever benefit the agreement gave 
 to the plaintiff the defendant is entitled to. It is utterly uncertain 
 ^vhat the terms of the agreement between the plaintiff and E. C. his 
 landlady are ; but any right which the defendant may have to call for 
 proof of the lessor's title rests upon that agreement, and must be the 
 right which the plaintiff had against E. C, and which by the contract is 
 transferred to the defendant." And per LitiMak J.: "Where parties 
 enter under a mere agreement for a future lease they are tenants at 
 will ; and if rent is paid under the agreement they become tenants from 
 year to year, determinable on the execution of the lease contracted for, 
 that being the primary contract. But if no rent is paid, still before the 
 execution of a lease the relation of landlord and tenant exists, the 
 parties having entered with a view to a lease and not a purchase " 
 {Hamerton v. Stead). 
 
 Although it may be that ichcrc an actual demise is made generally at 
 a yearJij rent, and noth'mg is said as to the duration of the term, a tenancy 
 from year to year tvould be im2)licd ; yet wdiere, from the terms of an 
 agreement for a lease, coupled with surrounding circumstances, it is 
 ambiguous what term is intended to be conveyed, such agreement is 
 void for uncertainty. And so it was held by the Exchequer Chamber 
 in Fitzmaurice v. Bayley. By increasing the amount of rent payable by 
 a tenant from year to year, a new tenancy is not necessarily created ; much 
 must depend upon what was said at the time the additional sum was 
 agreed to be paid (JJoe dem. Clonic v. Geekie). The Court of Common 
 Pleas considered that the umpire was right in refusing to admit evi- 
 dence to show that by the custom of the trade of brickmaking, brick laud 
 is always let for a longer period than from year to year (In re Stroud). 
 
 The argument in Tress v. Savage turned npon the effect of 7 & 8 Vict. 
 c. 76. There the plaintiff and defendant, after stat. 8 & 9 Vict. c. 106 
 came into operation, executed a written instrument not under seal, on 
 December 17th, 1850, by which Tress agreed to let, and Savage to hire 
 land for a term exceeding three years, at a rent payable monthly, from 
 December 2.5th of that year. Savage entered, and it was afterwards 
 orally agreed that the rent should be paid quarterly. The Court of 
 Queen's Bench held that stat. 8 & 9 Vkt. c. 106, s. 3, though rendering
 
 AGREEMENT NOT UNDER SEAL. 413 
 
 the lease void, as not being by deed, still made it void only as a lease, 
 and did not prevent it from indicating the terms on which Savage held 
 as tenant from year to year ; and that, consequently, Savage's tenancy 
 might be determined, during the term, by a half-year's notice, but the 
 end of the term expired without notice. Coleridge J. said, "By sec. 4 
 of 7 & 8 Vict. c. 76, no lease in writing of any freehold land 'shall be 
 valid as a lease,' ' unless the same shall be made by deed ; but any 
 agreement in writing to let ' ' any such land shall be valid and take 
 effect as an agreement to execute a lease ; ' ' and the person who shall 
 be in possession of the land in pursuance of any agreement to let, may, 
 from payment of rent or other circumstances, be construed to be a 
 tenant from year to year.' 
 
 "Under this section Do^ clem. Davenish v. Moffat was decided. There 
 the defendant tooli possession of land under the terms of a iiritten agree- 
 ment not under seal, which, before stat. 7 & 8 Vict. c. 76, came into 
 operation, would have operated as a demise for three years ; and it was 
 held that he became tenant from year to year, subject to the terms of 
 the agreement ; and that the consequence of this was, that at the end of 
 the three years the tenancy expired without any notice to quit. That 
 statute is repealed by stat. 8 & 9 Vict. c. 106 ; sec. 3 of which substi- 
 tutes, for sec. 4 of the repealed act, an enactment somewhat diflFerently 
 expressed, and makes a lease required by law to be in writing, of tene- 
 ments or hereditaments, ' void at law, unless made by deed.' " 
 
 The right to enter for condition hrolcen is not included in the 8 & 9 Vict. 
 c. 106, s. 6, which enacts that a right of entry may be disposed of by 
 deed {Himt v. Bishop). And per Cressivell J. : ''A lease in writing, not 
 Ig deed, void under stat. 8 & 9 Vict. c. 106, does not require a stamp " 
 {Jilott V. Turnage). 
 
 By sec. 3 of statute 8 & 9 Vict. c. 106, which repealed the statute 
 7 & 8 Vict. c. 76, it is enacted " That a lease required by law to be in 
 writing of any tenements or hereditaments made after the 1st day of 
 October, 1845, shall be void at law unless made by deed." The effect of 
 this statute is, that an instrument u'hich purports to let premises for a 
 period of more than three years, and which therefore is void as a lease in 
 not leing sealed, is still good as an agreenmit, and the tenant who enters 
 under it becomes tenant from year to year according to its terms, so far 
 as those terms are applicable to a tenancy from year to year {Heard v. 
 Campli7i). 
 
 The question in Stratton v. Pettit was whether the instrument set 
 forth in the declaration Avas a lease or an agreement. And p)er Jet vis C.J. : 
 " The rule to be collected from all the cases is, that the intention of the 
 parties, as declared ly the ivords of the instrument, must govern the con-
 
 414 VALIDITY OF AN AGREEMENT. 
 
 sirwUon {per Lord EUeuborovfih CJ. in roole v. Emncy). And the 
 Court will, if possible, put such a construction upon it as will effectuate 
 the intention of the parties rather than defeat it. The question then, 
 is. what was the intention of the parties when this instrument was 
 made ? Doubtless they intended to make an instrument which should 
 have some operation ; but did they intend to make a lease, or an agree- 
 ment ? If the former they have not done what they intended, because 
 the lease is void by the statute. The intention of the parties must be 
 collected from the instrument itself. The rule is well explained by 
 Laurence J. in Morgan y. BisscU : 'Where there is an instrument by 
 which it appears that one party is to give possession and the other to 
 take it, that is a lease, unless it can be collected from the instrument 
 itself that it is an agreement only for a lease to be afterwards made.' 
 But it is unnecessary to refer to the cases which are all collected by Sir 
 Robert Comyn in his useful book upon Landlord and Tenant. It is 
 admitted that before the statute this instrument would have been held 
 to be a lease ; and if the true rule be that the intention of the parties 
 as declared by the words of the instrument must govern the construction, 
 it is clear that the parties intended this instrument to operate as a 
 lease. It is void as a lease, and the defendant is therefore entitled to 
 our judgment" (ih.). 
 
 In Parker v. TasweU, by an agreement in writing, a landlord agreed 
 to let a tenant certain lands for ten years at a fixed rent. The tenant, 
 however, was to perform certain acts as "leading," or carrying materials 
 for building and draining, which were to be done by the landlord ; and 
 there were stipulations that new hedges were to be made and planted 
 by the landlord, and that "gates, buildings, &c.,'' were to be left in 
 repair ; also that the landlord reserved to himself all customary rights 
 and reservations, such as liberty to cut and plant timber, search for and 
 work " mines and minerals," &c. The agreement was signed by both 
 parties ; and SImrf V.C. held that, inasmuch as the subject-matters, 
 the term and the rent, were certain, the uncertainties as to the subsi- 
 diary part of the lease, even in the use of the expression " &c.," were 
 not sufficient to prevent the tenant from having specific performance of 
 the agreement, and that the 3rd section of the 8 & !) Vict. c. lOG, which 
 enacts that every lease required by law to be in writing shall be void at 
 law unless made by deed, did not exclude the jurisdiction of the Court 
 in this case. It was held by Lord CMmsford Ch. on appeal, that such 
 agreement, though void at law, under 8 & 9 Vict. c. 106, as a lease, 
 was valid as an agreement, and specific performance of it was decreed, 
 and also that the insertion of "&c.," on some of the terms of the agreement 
 did not produce such uncertainty as to render the agreement incapable
 
 PAROL AGREEMENT FOR A LEASE. 415 
 
 of specific performance, where the property, the rent, and tlie other 
 material points on the lease were sufficiently described and ascertained. 
 
 A parol affreement for a lease, evidenced hy a memorandum sfatliiij 
 terms and rent, under which the tenant took possession, was decreed, on 
 appeal from Stuart V.C. to the Lord Chief Justices, to be specifically 
 performed, although it was uncertain whether the tenant had not 
 committed a breach of some of the proposed covenants ; but in case the 
 defendant should bring an action for such breaches, the plaintiff in 
 equity was not to be at liberty to plead that the deed was not executed 
 until after it purported to be {Pain v. Coomls). It was decided by 
 Lord Lyndhurst Ch., confirming the decree of Knight-Bruce V.C, that 
 an agreement for a lease may he assigned ; and where a landlord enters 
 into an agreement to lease a farm to B., who assigns the agreement to 
 C, the landlord is entitled to have the personal liability of B. for the 
 performance of the covenants of the lease to be granted to C, in pursu- 
 ance of the covenant {Dowell v. Deiv). And where an agreement was 
 entered into by a landlord with a tenant in possession of a farm, under 
 a lease, to renew tJie lease upon its expiration, ivMch was executed hy the 
 landlord only, and not hy the tena?it, such agreement was not nudum 
 2)actum, and the tenant, who continued some time in possession of the 
 farm under it, after the expiration of the lease, might enforce it against 
 the landlord {ih.). Knight-Bruce V.C, in the course of his observations 
 in the same case on evidence adduced in equity as to the annual value of 
 a farm, and the repairs of farm buildings, and the cultivation of a farm 
 according to covenants in a lease, and the waiver of forfeiture of a lease 
 by a landlord, said, "It has been a very old principle of law to disregard 
 unimportant matters of waste; for if according to a liberal intei-jiretation 
 of strict covenants, a tenant was to be ejected for a foul turnip-field, an 
 unhinged gate, a broken shutter, or small matters of that description, 
 which frequently occur on the best-managed farms, there would scarcely 
 be a lease in existence throughout the kingdom. It is necessary that 
 in these cases juries and judges should make a reasonable allowance, 
 and not put too strict and precise an interpretation on such covenants," 
 According to Doe dem. Thomson v. Amey, ivhere a party is let into 
 possession, and pays rent under an agreement for a futiure lease for years, 
 tvhich is to contain a covenant against taking successive crops of corn, and 
 a condition of re entry for hreach of covenants, it was held that he thereby 
 became a yearly tenant, subject to the above terms and condition. 
 Patteson J. said, " In Mann v. Lovejoy, though the facts differed from 
 those of the present case, yet in principle the ruling oi Ahhot CJ. is in 
 favour of the plaintiff. It is said that a covenant respecting the rota- 
 tion of crops cannot be engrafted on a yearly tenancy ; but I see no
 
 416 EXPIRED LEASE. 
 
 reason why it should not. The tenant in possession nuder such cir- 
 cumstances is bound to cultivate the land as if he were going to con- 
 tinue in possession as long as the lease itself would have lasted. It is 
 argued that the tenancy arises by operation of law upon the payment of 
 rent, and that the law implies no particular mode of cropping, nor any 
 condition of re-entry. But the terms upon which the tenant holds are 
 in truth a conclusion of law from the facts of the case, and the terms of 
 the articles of agreement ; and I see no reason why a condition of 
 re-entry should not be as applicable to this tenancy as the other terms 
 expressed in the articles" {ib.). 
 
 In the case of a mere agreement for a lease, it is no breach that posses- 
 sion is not given : and it was so decided in Drurg v. Macnamara. By 
 an agreement in writing the plaintiff agreed to take of the defendant a 
 farm at a yearly rent, the plaintiff paying all rates, taxes, &c., " the 
 tenancy to commence from the 29th of September next, for a term of 
 eight years, subject to a lease " to be drawn up by defendant's solicitor. 
 The plaintiff brought an action for not giving possession before or on 
 the 29 th of September, and averred that he had laid out a large sum of 
 money on implements to cultivate the farm ; but it was held no breach 
 of the agreement that the defendant would not give him possession on 
 that day, or at any time subsequently. The instrument in writing here 
 did not operate as a lease, or so as to give an interest in land. 
 
 An exjiired lease, which was produced in an action brought for not 
 farming land in compliance with its covenants, was held by the Court 
 of Queen's Bench not to be " a schedule, inventory, or catalogue," con- 
 taining the conditions or regulations for managing a farm within 55 
 Geo. III. c. 184, Sched. pt. 1 (Strutt v. Robinson). In Cattle v. Gamble, 
 the agreement was for the purcliase of the herbage of a close for five 
 months at the price of £45, £10 to be paid down, and a joint promis- 
 sory note to be given for the residue, payable within five months : and 
 on a trial of assumpsit for use and occupation of the land and eatage of 
 the grass, brought to recover the residue of tlie purchase-money, it was 
 held that the contract was sufficiently stamped with a £1 stamp, as it 
 fell under the head in the schedule in 55 Geo. III. c. 15C of '■'■ convegance, 
 whether grant, disi)Osition, lease, &c., or of any other kind or description 
 on the sale of any lands or tenements where the purchase or considera- 
 tion shall not amount to £50." 
 
 By 17 & 18 Vict. c. 83, s. 23, the ad-valorem stamp duty on a lease 
 is to be regulated bg the considerations expressed on the face of the deed 
 {Lhich V. Bradgll). In Blount v. Pearman the lease contained a demise 
 of two separate farms, with two habendums differing from each other in 
 duration ; a reservation of two distinct rents, one in respect of each
 
 MEANING OF "SUBJECT MATTER " IN STAMP ACT. 417 
 
 farm and separate covenants, some applying to one farm and some to 
 the other. The lessee entered on the whole at the same time, and it 
 was held that one ad-valorcm stamp, calculated on the united amounts 
 of the two rents, was sufficient. So an agreement containing a demise of 
 land at a certain rent, and of other land at the same as ivas then paid for 
 it ly a tenant, but not describing the amount, is well stamped by one 
 ad-vatorem stamp, calculated upon the whole amount of rent to be paid 
 Jbr all the lands, the tenant's rent being proved by witnesses {Parry v. 
 Deere). 
 
 Where A. entered into a written agreement with B., for the hire of a 
 piece of land for the purpose of making bricks, and C. afterwards made 
 an offer in writing to let another piece of land to A., upon the terms 
 contained in the agreement between A. and B., which offer A., at a sub- 
 sequent period, verbally accepted ; in an action by C. for a breach of 
 some of the terms of this contract, it was held by the Court of Queen's 
 Bench that the written offer by G. was admissible in evidence ivithout 
 being stamjied (Brant v. Broivn). The alteration of an agreement 
 stipulating to give up the holding and occupation of a farm, by the 
 addition of the words " house and premises," after that agreement has 
 been completed, is not such an alteration as will render the affixing 
 of a new stamp necessary, house and premises being included within the 
 meaning of the term " farm " {Doe dem. Waters v. Houghton). 
 
 The " subject matter " of an agreement to talce land, within the mean- 
 ing of the Stump Act, is the right of occupation, measured by the total 
 amount of reut to be paid for the whole period of such occupation. An 
 agreement in the following form — " I, J. T., do hereby agree with W. M. 
 to retake of him two acres of land, &c., from the 10th of October, ISiO, 
 at which time my tenancy thereof expires, until the 25th of March, 1841, 
 for the sum of £10," with a promise by J. T. to allow W. M. to plant 
 fruit trees, and to deliver up possession at the end of the time ; and signed 
 by J. T.,but not by W. M.— was held by the Court of Queen's Bench in 
 Doe dem. Marloiu v. Wiggins to be neither a lease nor an agreement, in 
 which the matter was of the value of £20, and therefore to require no 
 stamp. 
 
 And jjer Patteson J, : " If this document is a lease no doubt it re- 
 quires a stamp. But it cannot be so, because there is no person de- 
 mising, no lessor. I do not say that it is not binding on the party who 
 executed ic, but simply that it is no lease. Ricliardson \. Gifford does 
 not determine that. The Court in that case gave no opinion that the 
 instrument was a lease, and merely determined that the covenantor was 
 bound by it as an agreement. Gooclt v. Goodman is a very peculiar case, 
 and the Court there also gave no opinion whether the instrument operated
 
 418 ESTOPPEL BETWEEN LANDLORD AND TENANT. 
 
 as a lease, or passed any interest, and it eventually went off on another 
 point. There are, then, no authorities to show that an instrument exe- 
 cuted by the tenant only can be a demise. It is therefore an agreement. 
 Aiid the remaining question is, whether it requires a stamp, as being re- 
 specting a subject-matter above the value of £20. I think it does not; 
 the subject-matter, I tliink, is measured by the whole amount of rent to 
 be paid, not by the total value of the land in respect of which it is to be 
 paid ; and here the right of occupation is only for half-a-year, and the rent 
 £10. Reliance was placed in the argument on the exception exempting 
 leases at rack rent, under £5 per annum ; but that, I think, is to be ex- 
 plained by considering the subject-matter as the whole rent to be paid, 
 which for a term of years might well exceed £20, although under £5 per 
 annum. I think, therefore, that the decision of Williams J. in Mwlow 
 V. Thompson was right." 
 The following document — 
 
 ^^ August 2nd, according to Mr. HacMfs request, the land at BJaclc- 
 forclhy, under Mr. Elstead, I will he hound for till next Lady- 
 day. Signed, ''J. GLOVER:' 
 
 which was tendered in evidence in an action by Glover against Hackett 
 for money paid to Mr. Elstead, was held on the authority of Ramshottom 
 V. Mortley to be a guarantee, and to require an agreement stamp {Glover 
 \. Hackett). But qiacre whether under 19 & 20 Vict. c. 97 (the Mercan- 
 tile Law Amendment Act) the document by itself was one which would 
 satisfy the Statute of Frauds (Jh.). 
 
 The doctrine of estoppel hetween landlord and tenant is founded upon 
 the principle that a lessee having accepted a lease may not plead to the 
 action of his lessor nil habuit in tenementis. But the lessee may plead to 
 such an action, that the lessor had an interest at the date of the lease, 
 but that such interest had determined before the alleged cause of action 
 arose. Therefore if a termor affect to grant a lease for a term exceed- 
 ing his own term in duration, and to reserve an annual rent, that would 
 opei'ate as an assignment of his term, and there would be no estoppel 
 between him and the person to whom he made such assignment ; and 
 accordingly, it would be doubtful whether the assignor would have any 
 remedies for recovering the rent {Lcmgford v. Sehnes). The stat. 4 Geo. 
 IV. c. 28, does not give power to distrain for such a rent {ih.). 
 
 By an agreement in writing A. agreed to demise to B. certain prremises, 
 which ivere then in lease to C., and B. undertooh to procure a surrender of 
 the existing lease from C, and to accept the new lease. C. having after- 
 wards refused to surrender, A. filed a bill against B. for sj^ecific perform- 
 ance with a modification ; and it was held on dimurrer by Wood V.C.,
 
 SEFARATE OllDERS OF EEFEEENCE. 419 
 
 who distinguished the case from Nethorpe v. Ilolgate, which was cited in 
 support of the bill, that the bill could not be sustained {Beeston v. Stutely). 
 And where an agreement recited that the defendant had, as he was advised, 
 legally put an end to a lease of a farm Inj virtue of a 'power in it to that 
 effect, in case of the tencmfs hankrnptcy, and that the lease to the plain- 
 tiff (who was admitted into possession and paid £250, or half of the bonus 
 agreed on for the lease so to be granted) should commence on a day cer- 
 tain, if the defendant could then legally make it, or as soon as he was in 
 a situation to do so ; and the defendant after the plaintiff had occupied 
 the farm two years was unable to grant the lease, owing to his former 
 tenant's commission of bankruptcy being superseded, it was held that the 
 granting of the lease being the consideration for the bonus, the plaintiff 
 could recover back his £250, as money paid on a consideration that had 
 failed, although he had had such beneficial occupation {Wright v. Colls). 
 
 An action by A. against B., and a cross action by B, against A., were 
 referred by separate orders of reference made under the 3rd section of the 
 Common Law Procedure Act, 1854. The latter action contained counts 
 for not using a farm in a tenant-like manner, and for goods sold ; and 
 the defendant pleaded to the first count a denial of the tenancy upon the 
 terms alleged, and performance of the agreement ; and to the last count 
 — never indebted, payment and set-oflf. The arbitrator made his award 
 on one piece of paper, awarding for the plaintiff in the first action, and 
 that in the second action there was nothing due or payable from the de- 
 fendant to the plaintiff, and he ordered that the costs of the award should 
 be paid by B. ; but the Court of Exchequer remitted the award to him that 
 he might make two awards, and find the issues specifically {Rellaby v. 
 Broum, Brown v. HelJaly). A usage for arhitrators appointed to determi?ie, 
 as between outgoing a7id incoming tenants of a farm, the value of the away- 
 going crop, and the deductions for want of repairs of the farm buildings 
 and fences, to make their award, on inspection of their crops and premises, 
 without notice to the parties and without evidence, may be good ; but no 
 usage can justify the arbitrators in hearing one party and his witnesses 
 only, in the absence of and without notice to the other party {Oswald v. 
 Uarl Grey). Behren v. Bremer, which confirmed Galloway v. Keyworth 
 settled that there is no impropriety in arhitrators employing an attorney 
 to prepare their award, and that there is not any necessary impropriety in 
 their employing the plaintiff's attorney for that purpose. 
 
 An authority to an agent, to execute an indenture under seal, must also 
 be under seal. A deed inter partes can only be available between the 
 parties thereto ; therefore where in covenant upon an indenture of lease 
 it appeared that the landlord by writing, not under seal, authorised his 
 attorney to execute the lease for and on his (landlord's) behalf, and the
 
 420 AUTHOIUTY OF AGENT. 
 
 jittorney sealed and signed the lease in his own name, the landlord can- 
 not maintain covenant against the tenant upon the indenture, although 
 the covenants ^Yere expressly stated to have been made by the tenant to 
 and with the landlord {Berkeley v. Hardy). If a man describe himself 
 in the beginning of an agreement to grant a lease, as making it on behalf 
 of another, but in a subsequent part say that he w'ill execute the lease. 
 Best C.J. held that he is personally liable {Norton v. Herron). Anayree- 
 ment for a lease made with an ayent, ivlio acts under a power of attorney, 
 and a lease executed by such agent in pursuance of the agreement, eflTec- 
 tually binds the principal {Hamilton v. Clanricarde{Earl) ; and see Corn- 
 foot V. FowJce, and Wilson v. Fidler.) According to Doe dem. Rhodes v. 
 Bohinson, a notice to quit yiven ly the ayent of an ayent is not sufficient 
 without evidence of an authority to give notice, or of a recognition by 
 liie principal. Doe dem. 3Iann v. Walters is an authority that an ayent 
 to receive rents has no implied authority to yive notice to quit, and where 
 notice to quit is given by an agent, the authority of such agent must be 
 complete a half year before the expiration of the notice, or at least before 
 the day of the demise laid in a declaration in ejectment brought in 
 respect of such notice. 
 
 If contractiny parties ayreeon the terms of a lease, of ivhich there is suffi- 
 cient evidence, but contemplate in addition a more formal document, it be- 
 comes a question of intention merely whether they intend it as a memorial 
 of the terms already agreed on, or as the instrument by which alone they 
 meant to be bound. And where, as in Ridyway v. Wharton, E., the sub- 
 lessee of the property, applied to W., the owner, for a lease to himself, 
 when the original lease expired, and W. referred him to his agent, C, and 
 certain interviews and correspondence between them resulted in the speci- 
 fication of certain terms, which were sent as instructions by C. to W.'s 
 solicitor, to prepare a lease, and both W. (the defendant) and C. denied 
 that the one had given, or the other had received authority to conclude 
 a binding agreement, though some evidence on the part of the plaintiff 
 went to show the tei'ms for the intended lease had been finally settled, 
 so as to constitute an agreement, it was held by Lord C'rantcorih Ch., Lord 
 Brouyham, and Lord Wensleydale, &c., Lord St. Leonards diss, (affirming 
 the decree of the Lord Chancellor in the Court below, though on different 
 grounds), that there was no concluded binding agreement. And see this 
 case (in which Tawny v, Crowthcr was observed on) for general observa- 
 tions on the conduct of contracting parties, and the evidence necessary to 
 enable the Court safely to decree specific performance of an agreement. 
 KnAper Lord St. Leonards : " As to the case of Tawney v. Crowther, it is not 
 at all material whether Lord Thurlow was right in construing the words 
 to amount to an acceptance of the agreement. It is an authurity for this
 
 LETTING BY AGENT WITHOUT AUTHORITY. 421 
 
 — tliat if terms he redured 1o writing, and a man says Uiai lipviUahidc hj 
 those terms, and ivill sign the agreement, although he does not sign, he is 
 hovndhg that agreement. There arc besides several q.^%q% {Western v. 
 Russell, Thomas v. Dering, and Gihhins v. The Board of the Metropolitan 
 Asylum) in which a single note written ly one party to a solicitor to draw 
 an agreement, independently of the agreement, has been held perfectly 
 valid" {it).). 
 
 In Collcn V. Wright, the defendant signed the following written 
 agreement : 
 
 "Terms for letting a form on Soham Fen, containing, &c. Terra 
 12i years from Lady-day last ; rent £350, to be paid quarterly ; land- 
 lord to pay the tithe rent-charge and drainage taxes ; landlord to 
 put buildings, gates, and posts in repair ; and tenant afterwards to 
 keep them in repair, being allowed rough timber ; tenant to pay for 
 the muck and straw upon the farm by valuation. All the other con- 
 ditions to be the same as in the lease under which J. H. B. now 
 holds the said farm. Landlord to allow tenant £25 of the first half- 
 year's rent. We agree to the above conditions, this 21st day of April, 
 1853. 
 
 " Rohert Wright, agent to AY. D. G., Esq. 
 " John Collenr 
 
 It was further agreed between Collen and Wright that an agreement, 
 stating in detail the terms referred to in the above agreement, should 
 be prepared without delay, and be signed by the parties ; and on 22nd 
 April, 1853, Collen, on the faith of the signature of the said agreement 
 by Wright, as above set forth, took possession of the farm. Both 
 Collen and Wright believed that the latter had authority from Gardner, 
 the owner, to let the farm. On 1st June, 1853, a valuation of the 
 straw and muck was made in accordance with the agreement, and the 
 amount was paid to Gardner's credit at his bankers', and Collen ex- 
 pended a considerable sum on the cultivation and improvement of the 
 farm before the September of that year. About the middle of November 
 he received notice that Gardner refused to sign the lease, on the ground 
 that Wright (against whose executors the action was brought) was not 
 authorised to let the farm for 12^ years, or on the terms set forth in the 
 agreement. Collen then filed a bill against Gardner for specific per- 
 formance, and after he had put in his answer, denying Wright's autho- 
 rity, Collen gave notice to Wright of the suit and ground of defence, 
 and that he would proceed with such suit at his expense unless he gave 
 him notice not further to proceed ; and that he would bring an action 
 against him for damages, in the event either of the bill being dismissed
 
 422 FALSE REPRESENTATIOX BY TENANT. 
 
 on the ground of defence set up, or of his requiring him not further to 
 proceed. Wi'ight answered repudiating his liability to Collen, and the 
 bill was dismissed on the ground of defence set up. On a case stating 
 the above circumstances, with liberty to the Court to draw inferences 
 of fact, the Court of Queen's Bench held that Collen was entitled to 
 maintain an action against Wright's executors, as for a breach of 
 promise, that Wright had the authority, and that he might recover in 
 such action damages for the expenses of the Chancery proceedings, it 
 not appearing that he had instituted thtm incautiously, and they being 
 therefore damages naturally resulting ft-om the misrepresentation made 
 by Wright. This ruling was confirmed by the Exchequer Chamber 
 {CocJcliirn C.J. diss.). 
 
 In Ley v. Peter, in which the action was brought to recover posses- 
 sion of an undivided third of a piece of land called Barn Meadow, the 
 defendant's grandfather had been owner of two undivided thirds of 
 such meadow, and held the other third under a lease, which expired in 
 1818. The father of defendant and defendant succeeded in their 
 turns ; and at the time the action was brought, the defendant was 
 owner of the two-thirds, and occupied the whole, no rent having been 
 paid since 1818. The only evidence relied upon for the plaintiff was a 
 letter of the land-agent who managed the defendant's property, written 
 within twenty years of the action being brouglit, in which he said the 
 defendant " would no doubt accept a lease of Ley's one-third at a fair 
 rack rent." It was held, after a verdict for the plaintiff in ejectment 
 for the one-third, by the Court of Exchequer, first, that this was not an 
 aclcnoivhdgment of title within 3 & 4 Will lY., c. 4, s. 14, as not leing 
 sir/ned hj the person in possessio)i, ltd only by an agont ; and secondly 
 {Martin B. diss.), that the land-agent had no authority by virtue of his 
 employment as such to write such a letter ; and thirdly, that the letter 
 was no evidence of a tenancy at the will of the plaintiff. 
 
 Where a tenant from year to year, having no authority from his land- 
 lord to let in a new tenant, falsely represented to the plaintiff that he 
 had, and thereby induced him to pay £100 for allo\nng him to enter 
 into possession, and also to take the stock at a valuation ; but the land- 
 lord refusing to accept him as tenant, he had to leave after a year's 
 occupation, and it was left doubtful on the evidence, whether, on the 
 whole, the plaintiff had become a loser or a gainer ; and the defendant 
 had paid the first half of the year's rent to the landlord ; the jury, in 
 an action for the false representation, were directed by Wightman J. 
 that they were at hberty, finding for the plaintiff, to give a sum less 
 than the £100, or even nominal damages ; and in a cross action by the 
 defendant against the plaintiff in that action for half-a-year's rent, they
 
 REFUSAL OF ENTRANCE TO NEW TENANTT. 423 
 
 were directed by his lordsliip to find for the phiintiff" on a count for 
 money paid {Graclmdl v. Davij). 
 
 The question as to when a lessor can he said to deni/ an entrance on to 
 his farm to the tiew tenant was discussed in Ilaiclres v. Ortoti. The 
 plaintiff in the autumn of 1832 entered upon 98 acres of the arable 
 land, and sowed them with wheat, and on April 6th, 1833, he went to 
 the farm, which still continued in the defendant's occupation, and 
 stated that he was come to take possession accordino^ to the lease. 
 Some further conversation followed, and according to the plaintifF, he at 
 that time demanded possession of the premises not yet given up to him, 
 and the defendant refused it. The plaintiff never obtained possession. 
 He ceased to occupy the 98 acres, and the defendant reaped the wheat. 
 Lord Ahinger C.B. considered that the plaintifi" had not clearly shown 
 any actual demand and refusal of possession, and that there ought to 
 be a nonsuit. The plaintiflF's counsel contended that there was a con- 
 structive eviction, as the plaintiff must be taken (and was in effect ad- 
 mitted by the pleadings) to have entered on the whole of the premises 
 when he entered on the 98 acres, and the defendant on April 6th kept 
 him out of the farm. His lordship then left it to the jury whether or 
 not the plaintiff had gone to the farm on April 6th, with a hand fide 
 intent to take possession, and whether the defendant had seriously ex- 
 pressed and shown by his conduct an intention that he should not have 
 it. The jury found for the defendant, and the Court refused a new 
 trial. 
 
 Doe dem. Marrpus of Hertford v. Hunt was the case of a tenant 
 refusing to show his farm. He had required that his rent might be 
 ' reduced from £520 to £400 ; the landlord refused, and he gave a 
 notice to quit at Michaelmas, 1834. It was afterwards agreed that he 
 should continue to hold on for a year at a reduced rent, the notice con- 
 tinuing in force until Michaelmas, 1835. Before that time arrived he 
 made an offer of £420, and received an answer from the plaintiff's 
 agent stating that " The Marquis of Hertford has directed me to 
 inform you, that he could only consent to accept your ofier of £420 
 for the farm, for the year from Michaelmas next to Michaelmas, 1836, 
 subject to the existing covenants, ^rrovided I could not find a tenant 
 for it at the rent it appeared to me to be worth hy the \st of August; and 
 subject as well to the express understanding that the notice you had 
 given to quit your farm at Michaelmas next should be admitted between 
 you not to be withdrawn, but to be carried over to Michaelmas, 1836. 
 The Marquis also directed me to advertise your farm to be let, in the 
 Ipswich paper, and I shall send the advertisement for insertion in the 
 next paper."
 
 421. MEANING OF "DEMISE." 
 
 The advertisement that the farm was to be let at next Michaelmas 
 accordingly appeared. On the 9th of July, 1835, the defendant signed 
 the following memorandum : " Mr. Hunt has explained that his offer 
 for the farm was £400 only, and subject to this correction he assents 
 to the terras proposed in Mr. W.'s (the agent's) letter.— e/. Himtr A 
 ]\Ir. Catlin made an application for the farm, but the defendant refused 
 to allow him to see it, and he made no offer ; and in consequence of the 
 defendant's refusal to leave at Michaelmas, 1835, this action of eject- 
 ment was brought. It was contended for the defendant, that under 
 tliis agreement the tenancy continued till Michaelmas, 1836, but GazeJee 
 J. refused to nonsuit the plaintiff. A rule to enter a nonsuit was dis- 
 charged, and the Court held that it was a necessarily implied condition 
 of the agrcemeut that the tenant should allow persons applying for the 
 farm to go over it to inspect it, and that the tenant having before the 
 1st of August refused to perform that condition, the contract was put 
 an end to. 
 
 The u'ord " demise " does not carrij ivith it any imjjlied undertaking 
 that the land shall be reasonahlij fit for the purpose for which it is taken; 
 the law merely annexes to it a condition that the party demising has a 
 good title to the premises, and that the lessee shall not be evicted 
 during the term {Sutton v. Temple). Here the defendant took the 
 eatage of a field in the parish of Skirbeck from the plaintiff. It con- 
 sisted of 24 acres of eddish, and the agreement was signed on Septem- 
 ber 8, 1842, for £40, half to be paid at Boston Mart, on the 12th of 
 December, and the rest on the 6th of April. The defendant stocked 
 the eddish with 15 beasts, four of which died on October 2nd, from the 
 poisonous effects of old refuse paint, which lay open in a manure heap 
 in the field. The plaintiff was informed of this, but took no steps to 
 remove the manure, and the defendant fenced it off, and turned in more 
 beasts, four of whom died from the poison above mentioned in a fort- 
 night. The defendant declined any longer to stock the eddish, and 
 told the plaintiff she might do what she pleased with it, but she did not 
 resume possession till after the 6th of April. There was no evidence to 
 show that the plaintiff was aware of the state of the eddish when she let 
 it. Hence it was contended that the defendant could not be made 
 liable, inasmuch as the eddish being wholly unfit for the purpose of 
 which it was taken, viz., the food of beasts, the defendant could not be 
 said to have had any beneficial use or enjoyment of it. 
 
 Lord Ahiiujer C.B. left it to the jury, who found tliat the beasts were 
 poisoned by the paint, and a verdict under his lordship's direction was 
 entered for the plaintiff for £12, that being a rateable proportion of the 
 rent for the time that the defendant actually occupied, leave being
 
 RIGHT OF ASSIGNEE OF REVERSION. 425 
 
 reserved to the defendant to move to enter a verdict for him, and to the 
 plaintiff to move to increase the damages to £26. Cross rules were 
 obtained accordingly. The rule for a nonsuit was discharged, and that 
 to increase the damages made absolute. Lord Ahingor C.B. said : "I 
 take the rule of law to be, that if a person contract for the use and 
 occupation of land for a specified time, and at a specified rent, he is 
 bound by that bargain, even though he took it for a particular purpose, 
 and that purpose be not attained." 
 
 In Hart v. Windsor, which virtually overthrew Smith v. 3Imral)Ie, 
 ParTce B. said : " It appears to us to be clear on the old authorities, 
 that there is ?io implied warranty on a tease of a house or of land, that 
 it is, or shall be, reasonabhj fit for habitation or niJtivation. The implied 
 contract relates only to the estate, not to the condition of the property." 
 So in Keats v. Earl of Cadogan, it was held that there is no implied duty 
 in the owner of a house, which is in a ruinons and unsafe condition, to 
 inform a proposed tenant that it is unfit for habitation, and no action 
 will lie against him for an omission to do so, in the absence of express 
 warranty or active deceit. 
 
 Stat. 32 Hen. YIII. c. 34, applies to leases by deed only ; and ivhere 
 a lease is not under seal, the assignee of the reversion cannot maintain 
 assumpsit against the lessee for breach of his contract with the assignor to 
 repair {Standen v. Christmas). And there is no implied contract to use 
 demised premises in a tenant-like manner, where the tenant has expressly 
 contracted to repair (ib.). Where a lease for a term certain was granted 
 by wi'iting, not under seal, which contained an undertaking on behalf 
 of the lessor and his assigns for quiet enjoyment, his assignees may 
 maintain assumpsit for use and occupation ; for the lessor having 
 granted for himself and his assigns the permission of any person who 
 might become assignee of the reversion during the lease was virtually 
 included, so that the occupation became in point of law permissive on 
 the part of the assignee as soon as his interest accrued (ib.). And jw 
 Curiam : " The occupation being in point of law by the permission of 
 the plaintiff, the action is maintainable in its present form, by virtue of 
 the statute 11 Geo. II. c. 19, s. 14. In most of the cases referred to on 
 the argument, the tenancy was from year to year. It is obvious that 
 the assignee of the reversion has then the power of determining the 
 tenancy by notice ; and if he refrains irom doing so the occupation 
 may well be said to be by his permission. In Lumleg v. Hodgson the 
 tenancy was from year to year, and a notice to quit had actually been 
 given, but not persevered in. The action was for a year and a half's 
 rent ; the last year's rent all accrued after the expiration of the notice 
 to quit ; and the occupation during that time was clearly by the per-
 
 426 LESSEE MUST SEEK LESSOR TO PAY RENT. 
 
 mission of the plaintiff ; the first lialf-year not so ; and the same 
 qnestion might have arisen as in the present case, but it was not made. 
 In Mortimer v. Preedy the Conrt felt the same difficulty as arises here ; 
 but the point was not expressly determined. The case of Buckivorth v. 
 Simpson was also upon a tenancy from year to year ; so was the case of 
 Dolby V. Hcs, which, however, turned upon the defendant being estopped 
 by his own acts of recognition. No case appears yet to have been deter- 
 mined, where an absolute lease in writing, not under seal, for a fixed 
 term of years hanng been granted, and the landlord having assigned 
 his reversion, it has been held that the assignee can maintain an action 
 of assumpsii for use and occupation. We are, however, of opinion for 
 the reasons already given, that he can " (ih.). 
 
 To an actio?! on a covenant in a lease to pay the rent reserved (pmrterly, 
 it is no answer that the defendant was on the dmiised premises on tJis 
 quarter-day, ready to iiny the lessor, but that the latter did not come to 
 receive it {Haldane v. Johnson). And jier Martin B. : "The covenant 
 is a covenant to pay a sum of money to the lessor upon a particular day, 
 no place being mentioned for payment, either expressly or by implica- 
 tion. In such a case it is clearly laid down, in both Rowe v. Young, in 
 the House of Lords, and the judgment of the Judges there, and Poole 
 y. Tumhridge, that it is the duty of the covenantor to seek out on the 
 appointed day the person to he paid, and tender the money ; and in Poole 
 V. Tumhridge, it was stated by Parke B., as the conclusion from the 
 authorities, that ' Nothing can discharge a covenant to pay on a certain 
 day, but actual tender or payment on that day, although if the party 
 afterwards choose to receive the money,' it is a payment to be ' pleaded 
 in the way of accord and satisfaction.' And this is in exact conformity 
 with the rule laid down in Sheppard's ' Touchstone,' p. 378, that where 
 an obligor is to pay a sum of money or do a like thing to the obligee on 
 a day certain, but no place is set down where it shall be done, it 
 must be done to the person of the obligee, wheresoever he may be, if he 
 be infra quatuor maria " (/&.). 
 
 Where A., y.e tenant, covenanted with the landlord, B., to keep certain 
 premises in repair, hut allowed them to hecoms dilapidated, and the cost 
 of repair would amount to £40, and B. had covenanted with C. (the 
 ground-landlord) duly to pay rent, which he had failed to pay, so that 
 B.'s reversion might have been forfeited and of no value, the Court of 
 Exchequer held, in an action by B. against A., that the damages should 
 be what it would cost to put the premises in repair, not what might be 
 the value of B.'s reversionary interest i.'n the premises {Davies v. Under- 
 wood). And ivhere a lease and under-lease each eontained a covenant, 
 to reimir and keep in repair, diflering however in substance and in terms,
 
 COVENANT TO REPAIR. 427 
 
 the Court of Exchequer held that the measure of damages in an action 
 by the lessee against the under-lessee on his covenant, was the sum it 
 would cost to put the premises into repair ; and that the plaintiff was 
 not entitled to recover as special damage in such an action the damages 
 and costs recovered in a former action, brought against him by his 
 lessor, for breach of the covenant in the lease {Penley v. Watts). But 
 qimre would the plaintiflp have been entitled to recover them if the cove- 
 nants had been identical {ib.). And see JSfeaJe v. Wyllle. 
 
 A covenant to yield up in repair at the end of a term, runs ivith the 
 land, and binds an assignee, though not named {Martyn Adx. v. Clue). 
 Defendant, who was the assignee of the lessee, pleaded, among other 
 pleas, as to suffering the premises to be ruinous and out of repair, and 
 so leaving them, that the lessor did not at any time from the assign- 
 ment till the expiration of the term provide on the premises any rough 
 timber whatever. It was held by the Court of Common Pleas on de- 
 murrer to this plea, that it was sufficient on this record to aver that the 
 lessor was always ready and willing to furnish timber, without stating 
 that he actually did furnish ; and that the plea was also bad, for that 
 the condition precedent to the defendant's obligation to repair was 
 sufficiently performed, if he was ready and willing to supply timber 
 when required (/&.). Li a covenant by a lessee, not naming assigns, to 
 repair and yield up in repair all buildings and erections, an assignee is 
 liable in respect of the non-repair of buildings erected during the term 
 {Minshull v. OaJces). Willes J. held in WoolcocJc v. Dew, that by a 
 covenant in a lease of a farm and cottages to keep, support, and main- 
 tain the premises in good repair, the lessee or assignee is bound to Jceejj 
 the cottages in situ, and to repair them if ruinous, or at least to replace 
 them as nearly as might be in the position in which they were when 
 demised, and is held liable, having pulled them down, for their value 
 as they stood, without reference to the result of their removal as 
 regarded the general improvement of the farm. 
 
 The rule as to keeping premises in repair was specially laid down in 
 Payne v. Haine. The defendant on becoming tenant to the plaintiff 
 of a farm and outbuildings agreed " to Iceep) the same, and at the expi- 
 ration of the tenancy to deliver up the same, in good repair, order, and 
 condition." At the trial the plaintiff proved bad repair of the thatch 
 on the outbuildings, as also of the gates, while the defendant sought to 
 prove that the gates had fallen to pieces from age alone, and the thatch 
 was better when he left than when he entered the farm. Piatt B. told 
 the jury to consider the state of the premises when the defendant 
 entered, adding that it was enough if the defendant left them' in as good 
 plight as he found them, and that he was not bound on quitting the
 
 428 MEAXIXG OF ''GOOD REPAIR." 
 
 farm to replace the matters demised by leavin;:^ new instead of old, or 
 oak instead of apple-tree posts. A verdict was thereupon found for the 
 defendant, and the Court {Plait B. assen.) made the rule absolute for a 
 new trial, on the ground of misdirection. Parke B. said : " If at the 
 time of the demise the premises were old and in bad repair, the lessee 
 was bound to put them in good repair, as old premises ; for he cannot 
 * keep ' them in good repair without putting them into it. He might 
 have contracted to keep them in the state in which they were at the 
 time of the demise. This is a contract to keep the premises in good 
 repair as old premises ; but that cannot justify the keeping them in 
 bad repair, because they happened to be in that state when the defendant 
 took them. The cases all show that the age and class of the premises, 
 with their general condition as to repair, may be estimated in order to 
 measure the extent of the repairs to be done." Rnlfe B. added, " The 
 term ^ good re}Kiir^ is to be construed with reference to the subject- 
 matter, and must diifer, as that may be a palace or a cottage ; but to 
 ' keep in good repair ' presupposes the putting into it, and means that 
 during the whole term the premises shall be in good repair." 
 
 In Baijlis V. Le Gros the lease contained a covenant Inj the lessee to 
 repair and Iceep in rejmir the premises ; and further, that it should he 
 lawful for the lessor once, or oftener in every year to enter the jjremises 
 and examine their condition, and if necessary give the lessee notice in 
 writing to repair, with a proviso that if the lessee should not perform 
 the covenants, it should be lawful for the lessor to re-enter. It was 
 held that these were independent covenants, and that the lessor had a 
 right to re-enter, as for a forfeiture, upon finding the premises out of 
 repair, though he had not given notice to the lessee to put them in 
 repair. The lessor, on examining the premises, found the defendant, who 
 was not the original lessee, in possession, and entering into an agreement 
 with him continued him as tenant. It was held that this was a sufficient 
 re-entry to oust the original lessee from further enjoyment. 
 
 It was ruled by Patteson C.J., in Leach v. Thomcm, that a tenant 
 from ijear to year is not bound to do suhstantial repairs, hut only to Iceep 
 the premises ivind and watertight. The landlord of premises let from 
 year to year is not bound to keep them in repair in the absence of an 
 express contract for that purpose ; nor is he liable to damage arising 
 to his tenant from the want of repair {Gott v. Gandy). Where a tenant 
 paid a sum of money to his landlord for brcnches of covenant to repair, 
 committed during the occupation of his assignee and his assignee's 
 successor, he can recover damages against his assignee for the money 
 paid for the non-repair during the assignee's occupation, without showing 
 an apportionment {Smith v. Peat). The measure of damages for a Ireach
 
 DES'iT.UCTION OF LEASED PREMISES BY FIEE. 429 
 
 of contract to repcur daring the existence of the term, is the difference 
 between the price for which the reversion would sell if the covenant 
 were unbroken, from that for which it would sell if the covenant were 
 broken {ib.). And per Parke B. : " The measure of damages as laid 
 down in some of the cases, and by my brother Coleridge in Doe t. Roiu- 
 lands, is too low. The true measure is to be ascertained by considering 
 what w^ould be the loss to the reversion, if it were sold at the time of 
 the commencement of the action" {it).). And in Vivian v. Champion, 
 Lord Holt C.J. says : " If the premises were out of repair in the an- 
 cestor's time, yet if the lessee suffers them to continue out of repair in 
 the time of the heir, that is a damage to the heir, and he shall have an 
 action ; and in these actions there ouglit to be very good damages ; 
 and it has been always practised so before me, and everybody else that 
 I ever knew. We always inquire in these cases what it will cost to put 
 the premises in repair, and give so much damages ; and the plaintiff 
 ought in justice to apply the damages to the repair of the premises." 
 
 A testator directed his trustees to allow A. B. to occupy a mill, &c., 
 so long as he should think proper so to do, he nevertheless keeping the 
 premises in good and tenantable repair, and paying a rent of £100. 
 A. B. accepted the gift, but the premises were afterwards totally de- 
 stroyed ly accidental fire, and it was held that A. B. was bound to 
 reinstate them, or pay a sufficient sum for that purpose, and was liable 
 for the rent in the meanwhile, and that he could not escape from the 
 liability to rebuild by declining any longer to retain them {Gregg v. 
 Coates ; Hodgson v. Goatcs). 
 
 It was decided in Baker v. Holtpzaffell that the landlord of a house 
 demised under a written agreement not under seal, nmy recover against the 
 tenant in occuiMtion and use and occupation for the rent accruing after the 
 premises are burnt down. And so in Izon v. Gorton, where there was no 
 written agreement, but a mere tenancy from year to year (which until 
 it is determined by a notice to quit, is, as to its legal character and 
 consequences the same as a term for years) ; for in order to enable a 
 tenant to avoid his lease there must be a default on the part of the 
 landlord {ib.). In Holtpzaffell v. Baker, where the plaintiff offered to 
 surrender his term, praying relief from the previous action. Lord Eldon 
 Ch. held that he was entitled to no relief, although the agreement con- 
 tained an engagement by the tenant to repair the premises, and keep 
 them in repair, " reasonable use and wear and damage by fire excepted." 
 A te?iant has no equitg to compel his landlord to expend money received 
 from an insurance office on the demised piremises being burnt down, in 
 rebuilding the premises, or to restrain the landlord from suing for the 
 rent until the premises are rebuilt {Leeds v. Chectham). An attempt
 
 430 LANDLORD XOT BOUND TO LAY OUT INSURANCE MONEY. 
 
 was made in Dennis v, Lofft, on the authority of an observation in Lord 
 St. Leonard's " Hand Book," p. 101, to overthrow the doctrine estab- 
 lished in this case and Holtpzaff'cU v. BaJrcr. The defendant was sued 
 for the use and occupation of a farm-house, some of the buildings of 
 "which had been accidentally destroyed by fire. He placed an equitable 
 plea on the record to the effect that the landlord had insured the 
 buildiugs in question (which were of a description much to enhauce the 
 value of tlie premises), and having received the sum insured, had not 
 expended the same on rebuilding the premises. This plea was demurred 
 to, and the Court of Queen's Bench, without calling the plaintiff, gave 
 judgment against the defendant, remarking that the law of Scotland as 
 to this point was different from that of England, in which it is no 
 excuse for nonpayment of rent that the landlord has insured and re- 
 ceived the money, if he has entered into no covenant to lay it out on 
 the premises. 
 
 Wlicre a farm-liouse was turnt hy accident, it was held by the House 
 of Lords, reversing the judgment of the Court of Session, that the 
 landlord is not bound to rebuild if there was no written agreement 
 {Bayne v. WaJlcer). If a landlord is bound in law or equity to repair 
 in certain cases, and the tenant in one of those cases owing to a sudden 
 tempest is obliged to make those repairs to prevent further mischief, 
 and then an action is brought against him for the rent, equity will not 
 inter{)ose, because the tenant is entitled to charge the landlord with the 
 re[iairs, and may set-off in an action for rent the money advanced by 
 him for repairs, as money paid to the use of the landlord {Waters v. 
 Weirjatt). 
 
 The plaintiff in Yates v. Dunstcr (in which Beech v. WJdte and Bennet 
 v. Iretand were cited) being the assignee of a lease, which contained a 
 covenant to repair, underlet the premises to the defendant, upon the 
 terms that he should " maintain them in as good a state as they would 
 be when repaired by him." Shortly after the defendant took possession, 
 the })remises, which were old and dilapidated, were destroyed by fire. 
 The jury found that the cost of rebuilding them would be £1,635, but 
 that they would be more valuable by £600 ; and the Court of Exchequer 
 held that the defendant was onty hound to put the premises in the same 
 state as they icould have been if lie had repaired them hfore the fire, and 
 consequently he was liable to pay as damages £1,035 only. 
 
 In The Duke of Newcastle v. The Hundred of Broxtowe, it was held 
 that in assessiny compensation for the demotition of a divelliny-house under 
 statute 7 & 8 Geo. IV. c. 31, the jury ought to consider what sum will 
 be necessary to repair the injury and replace the house in the state in 
 which it was at the time when the outrage was committed, and not
 
 ACTION FOR DILAPIDATIONS. 431 
 
 whether the plaintiff was hkoly to make it his residence, or whether it 
 was suitable for such residence. 
 
 In Macnolty v. Fitzher'bert, where an agreement had been approved 
 by the Court for letting a farm, the farm-house and buildings of ivhich 
 being in a dilapidated stats, were to be put into substantial repair by the 
 receiver, Sir J. Romillg M.R. made an order with very great hesitation, 
 on the petition of the tenant for life, that the £220 which had been 
 expended (out of £550) on repairs of a permanent character, should 
 be allowed out of the corpus of certain stock, in Court, limited on the 
 same trusts, and of which the petitioner was allowed interest for her life. 
 
 In Golce v. Cholmondley, a testator directed his trustees, out of the 
 rents and profits of his estate, to keep the manor-house and messuages 
 in good repair, and, if necessary, to rebuild any farm buildings from 
 time to time. The buildings being in a dilapidated state at the tes- 
 tator's death, a question arose between the tenants for life and those in 
 remainder as to the construction of the will in this respect ; and it was 
 lield by Kindersley V.C. that the manor-house and messuages must be 
 repaired out of the annual rents and profits ; that the rebuilding applied 
 to farm-houses, and then only in case of their being incapable of repair, 
 or in case of the expense of rebuilding being no greater — regard being 
 had to the nature, age, dimension, and structure — -than the cost of 
 putting them into good repair. 
 
 An action for dilapidations when money is paid into Court, and the 
 question in dispute is only as to the amount of the damages, may be a 
 matter of account, and the subject of a compulsory reference within the 
 meaning of the Common Law Procedure i\ct, 1854, 17 & 18 Vict. c. 124 
 {In re Cummins v. Birla'tt). 
 
 A tenant under a lease which contained a covenant to repair, and leave 
 in good repair, all buildings and erections then standing or to be erected 
 during the tei'm, built a farm-house, partly on the land demised, and 
 partly on the waste adjoining belonging to the lessor. On the decease 
 of the tenant a claim was made by the landlord for dilapidations, and 
 Sir J. Romilly M.R. held that his acquiescence in the act of the tenant 
 prevented his dispossessing him of the premises built on the waste, and 
 that it must be assumed by implication that the covenant to repair 
 extended to the whole building, and that the landlord was entitled, in a 
 suit for the administration of the tenant's estate, to establish a claim for 
 dilapidations {In re Newhery White v. Walcdy). 
 
 Where a rector p)ut up in the garden of the rectory, apart fi'om the house, 
 hot-houses, 70 feet long and between 10 and 20 feet high, consisting of 
 a frame and glass work, resting on brick walls about 2 feet high, and 
 embedded in mortar on these walls, he or his executors in a reasonable
 
 432 NOTICE TO JOINT TENANTS. 
 
 time after his death are entitled to remove them without incurring any 
 liability for either dilapidations or Avaste, provided the garden is restored 
 to its fomier condition (Martin v. Eoe). 
 
 A notice to quit, signed hy one of several joint tenants, purjwrting to he 
 given on behalf of them all, is sufficient to determine a tenancy from year 
 to year as to all (Doe dem. Aslin v. Summcrsett). 
 
 And so a notice to quit given hy a person previously authorized hy one 
 of several lessors, joint tenants, determines the tenancy as to all {Doe 
 dem. Kindersley v. Hughes). A receiver appointed hy the Court of Chan- 
 cery, with a general authority to let the lands to tenants from year to 
 year, has also authority to determine such tenancies by a regular notice 
 to quit {Doe v. Read). But per ParJce J., a mere receiver of rents, as such, 
 has no authority to determine a tenancy {Doe dem. Mann v. Walters). 
 And per Patteson J., an agent to receive and let has authority to deter- 
 mine a tenancy {Doe v. Mizcm) ; but a notice to ([uit given hy an agent of 
 an agent is not sufficient without evidence of an authority to give notice, 
 or a recognition by the principal {Doe v. Rohinson). Lord Ellenhorough 
 C.J. ruled that notice to quit may he given to a tenant hy parol ; and 
 where there are two tenants of premises held in common, notice to one 
 is sufficient {Doe dem. Macartney, Lord, v. CrieJc). And, again, if a 
 notice to quit is directed to a tenant hy a wrong Christian name, and he 
 keei)S it, it is a waiver of the misdirection, and the lessor may recover 
 on it, if there was no other tenant of the name {Doe v. Spiller). 
 
 On a parol demise of rent, to take place from the following " Lady 
 Day," evidence of the custom of the counfrg was admitted, to show that 
 " Old Lady Day " was meant {Doe dem. Hall v. Benson). And see 
 Doe V. Hoplcinson, decided on the authority of this case ; and Furley 
 V. Wood, where Lord Kenyon C.J. admitted proof of the custom of the 
 country that a general holding in Kent from " Michaelmas " meant Old 
 Michaelmas Day. In Doe dem. Spicer v. Lea, where the letting was by 
 deed, the Court allowed of no extrinsic evidence to explain the time of 
 iiolding stated therein ; and ruled that since the new style (Jan. 1, 
 1752) to hold " from the Feast of St. Michael " meant Xew Michaelmas, 
 and that, considering the tenant's year to end at New Michaelmas, the 
 notice to quit at Old Michaelmas, though given half-a-year before New 
 Michaelmas, was bad ; for the notice mu.st Ijo to quit at tlie end of the 
 tenant's year, and if it might be given to quit twelve days afterwards, it 
 might as well be at any other time. 
 
 In the case of Doe dem. Slrirktand v. Spence, there was an agreement 
 by a tenant of a i'anu " to enter on the tillage land at Candlemas last, 
 and on the house and all the other premises at Lady Day following, and 
 that when he left the farm he should quit the same, according to the
 
 DIFFERENT TIMES OF QUITTING. 433 
 
 times of enfri/ as aforesakr' ; and the rent was reserved half-yearly at 
 Michaelmas and Lady Day, It was held that a notice to quit delivered 
 half-a-year before Lady Day, but less than half-a-year before Candlemas, 
 was good, the taking being in substance from Lady Day, with a privi- 
 lege for the incoming tenant to enter on the arable land at Candlemas 
 for the sake of the ploughing, &c. Lord Elloilwrougli C.J. said : " The 
 case Doe dem. Daggett v. Snoivdon has decided that the notice to quit 
 shall refer to the substantial day of entry of the tenant, though he may 
 have before entered on the arable land for the benefit of ploughing and 
 preparing it, and that the incoming tenant may have the privilege of 
 entering upon it for the same purpose, antecedent to the time of notice." 
 
 In Doe dem. Davenport v. Rhodes, a tenant held a farm, t/ie lands, 
 ivith file exception of a sufficient outlet of Voozy pasture, from the 2nd of 
 Februarg, and the house with such pas twe from the 1st of Hag, 1835, 
 then next, for one year, and afterwards from year to year, as long as 
 both parties should please. On Aug. 1st, 1842, a notice was served on 
 the defendants to quit the farm on the 2nd of Feb. then next, or at 
 such other time or times as their tenancy should expire next after the 
 expiration of half-a-year from the delivery of the notice. It was con- 
 tended for the defendants that this notice was not sufficient to entitle 
 the lessor of the plaintiff to recover the house, outluiiklings, and 
 outlet, as to which the term would not expire until the 1st of May 
 following. Williams J. reserved the point, and the plaintiff' had a 
 general verdict. The Court did not pronounce a definite opinion upon 
 the question, and the plaintiff was held entitled to a general verdict, 
 if he proved his title to recover any part of that for which he had 
 declared. 
 
 In Doe dem. Kindersley v. Hughes, the actual period of the commence- 
 ment of the tenancy was not shown ; but it was proved to be the usage 
 of the estate that the tenants should enter upon the lands on the 2nd of 
 February, and upon the house and outbuildings on the 1st of May. On 
 the 16th of February, 1838, a notice to quit was served upon the defen- 
 dants by the agent of the trustees, " to quit and deliver up the farm, 
 lands, and premises which you hold under them at the end of your 
 jyresent year's holding thereof " ; and it was held that this was a good 
 notice to determine the tenancy in the spring of 1839, it not being 
 shown, on the part of the tenant, that the land was not the principal 
 subject of the holding. The defendants contended that the notice to 
 quit was insufficient on the face of it, inasmuch as it was to quit at the 
 end of the defendant's present year's holding, i.e., in May, 1838, for 
 which it was too late ; and that it could not operate to determine the 
 tenancy at the end of a subsequent year.
 
 43i INSUFFICIENT NOTICE TO QUIT. 
 
 Where a tenant from year to year gave his landlord, who accepted it, 
 a written notice to quit at Midsummer, and then, on discovering that his 
 tenancy did not expire till Christmas, sent another notice accordingly, 
 and refused to quit the premises until the latter date, the Court of 
 Exchequer held, on an ejectment being brought, that the tenancy was 
 not determined by notice, inasmuch as it was not good as a notice to 
 quit, and could not operate as a surrender by a note in writing within 
 the Statute of Frauds, the first being to take effect infuturo {Doe dem. 
 Murrell v. Mil ward). The case of Aldenburgh v. Peaple was much 
 shaken by the decision of the Court of Exchequer in Weddall v. Capes ; 
 for although the precise point is not there determined, yet it is clear 
 that the Court were of opinion that the instrument could not operate 
 as a surrender in futuro. Bcrsell v. Lansherg, where it was held by 
 the Court of Queen's Bench that a verbal acquiescence by the landlord 
 on receiving from a tenant from year to year a verbal notice to quit 
 determinmg within the six months is not sufficient, and does not operate 
 as a surrender of the term, fell directly within the authority of Johnstone 
 V. Huddlestone. 
 
 In Doe dem. Plumer v. Mainlvj, the premises were demised under a 
 Avritten agreement dated August 4th, 1845, " the tenancy to be from 
 year to year from Michaelmas next," at the rent of £55, payable half- 
 yearly, "except the last 1ml f year, which portion of rent shall be paid 
 on or before the first of August in that year, and to be deemed then 
 due for all legal remedies for recovering rent in arrear " : tenant " to 
 allow the landlord or incoming tenant in the last year to enter on 1st 
 May, to make fallows and carry out the manure " ; for which com- 
 ])eusation was to be paid, &c. : " tenant to have the use of the barns 
 for stacking and thrashing the crops of the last year till the 1st day of 
 ]\Iay after the tenancy." Defendant came into possession, and on the 
 26th of March, 1846, he was served with a notice to quit at Michael- 
 mas, 1846. It was contended on his behalf, that, taking all the terms 
 of the agreement together, they necessarily imported that the tenancy 
 was to last beyond the first year ; but under the direction of WiMe 
 C.J., a verdict was returned for the plaintiff. The Court of Queen's 
 Bench refused a rule for a new trial on the ground of misdirection. 
 
 If a landlord lease for seven years hy parol, and agrees that the tenant 
 shall enter at Lady Day and quit at Candlemas, though 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 {Due dem. 
 Rigcje v. Bell). 
 
 It was decided l^y the Court of Queen's Bench in Bird v. Baker,
 
 LESSEE FOE A TERM OF YEARS. 435 
 
 that a lease, dated January 19, 1851, of certain premises to hold from 
 December 25th, 1849, for and daring the full term of fourteen years 
 then next ensuing, containing a proviso that either the lessor or Ussee may 
 determine the lease at the expiration of the first seven years, by six months' 
 notice to quit, is a lease determinable at the expiration of seven years 
 from December 25th, 1849, on due notice being given. 
 
 Where a tenant entered under an agreement for a seven years' lease, 
 tvMch was never executed, it was held by the Court of Common Pleas 
 that he was not entitled to notice to quit at the end of seven years. 
 Within the seven years he could not have been turned out without 
 notice ; but at the end of the seven years the contract itself gives him 
 sufficient notice {Doe dem. Tilt v. Stratton). The point is, in effect, 
 decided in Doe dem. Bloomfield v. Smith, and Dje dem. Older sha to v. 
 Breach. 
 
 If a lease le granted for seven, fourteen, or twenty-one years the 
 lessee has the option at which of the above periods the lease shall 
 determine {Dann v. Spurrier). The Court of King's Bench fully 
 acknowledged the authority of this decision of the Court of Common 
 Pleas in Doe dem. Webb v. Dixon ; and held that, under a lease for 
 fourteen or seven years, the lessee only has the option of determin- 
 ing it at the end of the first seven years, every doubtful grant being 
 construed in favour of the grantee. 
 
 Where a tenant for life snakes a lease for years to comynence on a certain 
 day, and dies (before the expiration of the lease) in the middle of a year, 
 and the remainderman receives rent from the lessee (who continues in 
 possession, but not under a fi'esh lease) for two years together on the 
 days of payment mentioned in the lease, this is evidence from which an 
 agreement may be presumed between the remainderman and the lessee, 
 that the lessee should continue to hold from the day and according 
 to the terms of the original demise, so that notice to qiiit ending on that 
 day is proper {Doe dem. Jordan v. Ward). 
 
 A 2)erson who held ylebe lands as tenant to one mc^mibent, and con- 
 tinues in possession under his successor, without disturbance, must be 
 presumed to hold as a tenant to the latter, and cannot be dispossessed 
 without notice to quit {Doe dem. Cedes v. SomervUle). But Littlcdale J. 
 held, in Doe dem. Kirby v. Carter, that the incumbent of a living may 
 sustain ejectment against parties in possession of tlie glehe lands, though 
 tlie current year of a teruincy from year to year created by his predecessor 
 is unexpired, as such new vicar had a right to immediate possession, 
 notwithstanding the tenancy recognised by his predecessor. Here the 
 plaintiff gave in evidence a notice to quit from the preceding vicar, 
 which had expired previous to the date of demise, and the defendant 
 
 r F 2
 
 436 TWO YEAIIS NOTICE TO QUIT. 
 
 cndcfivonrcd to show that his tenancy did not expire at the time to 
 Avhich the notice had relation. The letters of institution reciting the 
 cession of his predecessor were su^cient pri/ma facie of the cession being 
 duly made, especially as it was acted on, and a rule for a new trial on 
 the ground of misdirection was refused. 
 
 In TooTcer v. Smith an mjrmncnt for a lease coniaincd a stipuJation that 
 the tenancy should continue until after two years' notice to quit had leen 
 given. The tenant occupied the farm, paid rent for some years, but no 
 lease was executed, and the Court of Exchequer held that it could not 
 be implied that the stipulation as to the two years' notice to quit was 
 one of the terms under which the tenant held. The farm was to be 
 managed according to the four or five-course system— «'.p., with respect 
 to the five-course, not less than two-fifths of the arable land to be 
 always in sown grass and a two-years' ley, so as to be in proper 
 preparation for wheat, &c. ; and with respect to the four-course, not 
 less than one-fourth of the arable land to be always in sown grass, &c. 
 The one party to give the other two-years' notice in writing of his 
 intention to put an end to the tenancy ; such notice to be given on or 
 before the 29th day of September, and to expire on the 29th day of 
 September, which should happen next before the expiration of two full 
 years after such notice should have been given. The agreement con- 
 taining these terms, and signed by one Pearson for the plaintiflF, and 
 by the defendant, was produced. It was not under seal, and when 
 first produced was unstamped, but was subsequently stamped as an 
 agreement. Possession had been taken by the defendant under the 
 agreement, who occupied the farm, and paid rent for it for some years, 
 till his tenancy was determined by a two-years' notice, expiring Michael- 
 mas, 1856. The plaintiif averred that the farm had not been cultivated 
 according to the four or five-course system, but that large quantities 
 of tlifi arable land had been kept in wheat ; and the defendant pleaded, 
 intei' alia, that he never held the farm on the terms mentioned in the 
 declaration. Martin B. ruled that the contract in the declaration was 
 not proved, and nonsuited the plaintilF. 
 
 His Lordship, on a motion for a new trial, referred to Tress v. Savage, 
 where Coleridge J. pointed out that the tenancy to be implied was a 
 yearly tenancy, determinable by six months' notice to quit ; and added, 
 *' There is nothing inconsistent with a yearly tenancy in stipulations for 
 the cultivation of lands upon any system the parties may choose to agree 
 upon. It is a fallacy to assume that the term as to the four-course 
 Bystem of husbandry cannot be implied. It is nothing more than an 
 agreement, that during each year that the tenancy shall continue, a cer- 
 tain cour.se of cultivation shall be pursued." And jjpr rollock C.B. : " A
 
 EVICTION OF TENANT. 437 
 
 tenant holding iq^on the terms of an agreement for a lease was formei'ly 
 considered to be merely a tenant-at-will, but the Courts have since held 
 that if rent is paid a tenancy from year to year shall be presumed/ 
 Leave was given to amend the declaration within three weeks, by strik- 
 ing out so much of it as related to the two-years' notice to quit, on pay- 
 ment of costs^ otherwise the rule to be discharged. 
 
 In a plaint in the County Court for tlic recovery of prenmes Inj a lamh 
 loi-d against his tenant, the Court is not, under stat. 9 & 10 Vict. c. 95, 
 s. 58, necessarily deprived of its jurisdiction, by the judge being satisfied 
 from the evidcuce that there is a bond fide claim of title to the premises 
 by a third person, who has not only given notice to his tenant not to 
 })ay rent, but who has succeeded in obtaining possession from him. It 
 is the duty of the jndge, before he declines to try such cause, to ascer- 
 tain whether the person so claiming title has obtained possession under 
 circumstances which would amount to an action by title paramount ; for 
 if the tenant voluntarily gave up the premises, the cause could have been 
 tried without the judge having to determine any question of title {Emery 
 V. Barnett). 
 
 To constitute an eviction of a tenant Inj his landlord, ichich will operate 
 as a suspension of rent, it is not necessary that there should be an actual 
 physical expulsion from any part of the premises ; but any act of a per- 
 manent character done by the landlord, or by his procurement, with the 
 intention to deprive the tenant of the enjoyment of the premises as 
 demised, or any part of them, will operate as such eviction, and the 
 existence of the intention is a question for the jury ( UiJton v. Greenless, and 
 Upton V. Tomiend). Payment ly a tenant of rent to a p)erson other than 
 the person who let him into possession, under a threat of expulsion, does 
 not amount to a constructive eviction, so as to affect the estoppel ; and 
 semhle, that there cannot be a constructive eviction for that purpose 
 {Delaney v. Fox), 
 
 It is no answer to a declaration in covenant ly a landlord against a 
 tenant for not repairing, converting meadow-land into tillage, de2K(sturing 
 orchards ivith other than specified cattle, cutting trees, and underletting part 
 of demised p)remises ivithout his consent, that before any of the alleged 
 breaches, and during the continuance of the term, he was evicted from 
 an outhouse, garden, and court-yard, parcel of the demised premises, by 
 authority of the landlord {Newton v. Allin). And 7;er Curiam: "The 
 tenant can never be allowed to say that he is no tenant, because he has 
 been evicted at the very moment when he is underletting the land which 
 he has been put in possession of by the landlord, in direct contravention 
 of the covenants that he has entered into, the breach of which is admitted 
 upon the record" {ih.). And where lauds have been demised until
 
 438 occupier's liability for rates. 
 
 ^lic-haelmas and no longer, the tenant to have ilie use of a part of the 
 premises until the following Lady-day, the lessor may maintain eject- 
 ment for the other part, during the period between Michaelmas and 
 Lady-day {Doe dem. Waters y. Houghton). 
 
 Where a lessee covenanted that he " woidd pay all taxes, charges, rates, 
 tithes, or rent-charges in lieic of tithe, dues, and duties ivhatsoever, as then 
 were or should at any time thereafter during that demise be taxed, 
 cliarged, assessed, or imposed upon the said demised premises," the 
 covenant is not confined to rates payable by the landlord, but means 
 all rates then imposed on the lessee in respect of his occupation, and 
 all future rates which might be imposed on the land itself {Hurst v. 
 Hurst). 
 
 It was held by the Court of Common Pleas in Matheson v. Hart that 
 rates charged hy act of parliament upon land, hut which the occupiers are 
 to pcuj, retaining the same out of their rent, and not paying more than the 
 rent which shall from time to time become due from them, and leviable 
 by distress on the occupier neglecting to pay them, are, if left unpaid 
 by outgoing tenants (in the absence of any remedy either against the 
 owcors or against occupiers who may have left the rates unpaid, or of 
 any provision for a different course) leviable on the present occupier, to 
 the amount of any rent hecoming due on any current reservation. And 
 if a rate be seimratelg assessed in different districts, and lands not ivithin 
 the jurisdiction of the act are included in the assessment hut omitted from 
 the rate for which a warrant is issued, the warrant is not thereby ren- 
 dered invalid {ih.). The tenant under a lease, reserving rent, to be 
 paid without deduction, except for land-tax and sewers'-rate, cannot 
 deduct the tax or rate on the value of the demised premises, but on the 
 amount of the rent reserved ; and it is immaterial in this respect whe- 
 ther the value of the demised premises has been augmented above the 
 rent by erections or improvements prior to or after the lease {Smith v. 
 Hurahle). 
 
 The land-tax in each parish or place assessed hg the commissioners is a 
 fixed quota, estahlished hy statute 38 Geo. IIL c. CO, and not a propor- 
 tion of the whole sum charged on the division, to be assessed equally 
 throughout the same, under statute 38 Geo. IIL c. 5 {Reg. v. The 
 Commissioners of Land-Tax for the Toicer Division). Where by a con- 
 tract for the sale of land, tJw land is descrihed as " land-tax redeemed,^' 
 the vendor is bound to give reasonable evidence that the land-tax has 
 been redeemed, or that, if purchased, it is in his power to transfer or 
 release it ; and ordinarily the proper evidence of this would be the cer- 
 tificate of the commissioners or a copy of the register {Buclianan v. Pop- 
 2jleton).
 
 LAND-TAX. 439 
 
 The land-tax Is a '^parliamentary tax'" authia the meaning of an agree- 
 ment to pay rent " and all taxes parliamentary and parochiaV (Manning 
 V. Lunn). It was settled in Moody v. Dean and Chapter of Wells, that 
 the owner of lands charged wdth a fee farm-rent, payable to a purchaser 
 from the Crown, under statutes 22 Car. II. c. 6, and 23 Car. II. c. 24, 
 having redeemed the land-tax chargeable on the lands, out of which the 
 fee farm-rent issues, is entitled under the land-tax acts to deduct As. in 
 the pound from the rent so payable. Alderson B. said : " It is clear 
 that according to the trne construction of the acts this deduction must 
 be allowed. What Avas the situation of the parties when the 38 Geo. III. 
 c. 60 passed ? All the country was originally rated equally at 4.s. in 
 the pound. The variation in the rate has arisen fi'om change of cir- 
 cumstances- — -one part of the country prospered, another has declined. 
 The tax has thus become unequal. There was no real difference in the 
 proportion when the tax was assessed, though there was a difference in 
 the mode of assessment. Fee farm-rents and payments to the Crown 
 were subject to a fixed payment of 4s. in the pound. The whole tax 
 was paid by the party in possession of the land. He then deducted a 
 proportion, from the owner, of the rent ; and there seems to me no 
 reason why he should not still do so." 
 
 If by the stipulations contained in a lease the tenant is to pay the 
 land-tax, which he left unpaid during his tenancy, and which the suc- 
 ceeding tenant paid, and the landlord repaid him, it was held that as 
 the tenant's liability only arose fi'om the special agreement, the landlord 
 could not recover the sums so paid in an action for money paid but 
 must declare on the special agreement {Spencer v. Parry). And p)er 
 Lord Demnan C.J. : " The special agreement in this case creates the 
 liability of the defendant, which the act of parliament did in Dawson 
 V. Lmto?i" (ih.). A land-tax collector has no authority under a warrant 
 of the commissioners to break open an outer door unless a constable is 
 present ; and he cannot defend himself under 38 Geo. III. c. 5, b. 17 
 {Toss V. Racine). 
 
 A lease demising a parcel of land, ivith liherty to take clay, &c., and 
 malce hricJcs, contained three reservations, viz., an annual sum of <£17 10s. 
 for surface rent, a royalty or brick-rent of £100 by the year, and a sum 
 of 2s. for every thousand of bricks made in one year over a million. 
 Each sum was declared by the lease to be free of all dechictions except for 
 landlord's property and income tax. The tenant claimed to deduct from 
 his landlord property or income-tax on each, and the Court of Exche 
 quer held that he was entitled to make the deduction, the two first pay- 
 ments being rent, and the third, if not rent, still a payment with 
 reference to which the parties had agreed that the deduction should be
 
 440 EATING FOR PROPERTY-TAX. 
 
 made (E(hnfl)ids v. EashcootJ). Aud semhlo per Martin B., Watson B., 
 and Channell B., that the hmdloi'd was asseBsa])le to income-tax in re- 
 spect of the 2s. payable for each thousand over a niilhon bricks made 
 on the demised premises in the com-se of a year under 5 & 6 Vict. c. 
 35, s, 1, and that the dednction was properly made under Schedule A, 
 No. 8 {ib.). And^;^;- Channell B. : " The case of Daniel v. Grace is an 
 autliority that the right of distress attaches in respect of the reserva- 
 tion of 2s. per thousand on- the briclis made over a milhon" {ih.). 
 His lordship thus explained the distinction between the schedules : 
 *' No doubt Schedule A imposes the tax in respect of the property in 
 land ; Schedule B in respect of its occuiMtion ; Schedule C in respect 
 of profits derived from land; but Schedule D is more general in its 
 terms, and of wider effect than any of the preceding, and was, in my 
 opinion, intended to impose the tax in respect of every sort of property, 
 occupation, or profit, in or from land not embraced by any of the other 
 schedules" {ih.). 
 
 Tlw pom' rate is entirely cJuirged vpon the occnpier, and is a personal 
 charge in respect of the land. The property tax is assessed on the occupier, 
 and he has a right to deduct it from his next payment of rent, and if 
 he does not do so, he cannot recover it back from his landlord, either as 
 money paid, or money had and received to his use {Cumming v, Bed- 
 lorough). And per Alderson B. : " Money had and received could not 
 lie, because it is not shown that the rent was overpaid at all. It 
 either is a volmitary payment, or it is no payment at all " (^&). And 
 pier MauJe J. : " Without unduly straining the words of the act, the 
 deduction may be claimed out of the next payment, though made under 
 legal process " {Franldin v. Carter). And semlle per Lord Tenterden 
 C. J. : " If a tencmtpays taxes ivhich he alleges ought to have heen paid 
 l)]l his landlord, and afterwards pays rent for two years subsequently 
 without making any deduction, he cannot recover the amount in an 
 action against the landlord " {Saunderson v. Hanson). And semile 
 that a broker, who, when receiving rent under a distress, deducts a 
 sum purporting to be for land-tax, is not to be considered as allotv- 
 ing the land-tax, so as to affect the landlord's right, but as merely 
 from not knowing how to act, consenting to receive the money with- 
 out the sum deducted {ih.). The landlords are compelled by the 
 statutes 5 & 6 Vict. c. 35, ss. 103-105 to allow the deduction under a 
 penalty. 
 
 Denhg v. Moore decided that an occupier of lands having, during a 
 course of twelve years, paid to the collector of taxes the landlord' s prcrperty- 
 iax, and the fill rent as it hecame due to the landlord, could not recover 
 hack from the latter any part of iite prroperty-tax so paid, as muneg had
 
 tenant's right to deduct property -tax from rent. 441 
 
 and received to Ms urn. It was his own voluntary act, as lie must have 
 known he had a right to deduct it from each rent. 
 
 Sicahmn v. Ambler settled that a tenant Ms a right to deduct from 
 his rent the amount of properfi/-tax assessed iijmi, and paid hy Mm in 
 respect of his landlord, although the landlord is not in fact liable to be 
 assessed, and has before the payment claimed exemption, and that ex- 
 emption has been subsequently allowed. Parke B. said : " The qnes' 
 tion here was whether the defendant was entitled to deduct certain 
 property-tax paid by him— not to set it off. It was in effect settled by 
 Denbif v. lloore that a claim of this nature cannot be set oflp, because in 
 paying over the property-tax a tenant cannot be considered as having 
 done anything more than paying part of the rent, and he cannot set off 
 that. The plaintiff is in fact the representative of the Eau Brink Com- 
 missioners, and we have now to decide whether the defendants are 
 entitled to deduct certain payments they have made on account of the 
 property-tax since the commencement of their lease of the tolls, which 
 they held at different detached periods between 1837-50. We do not 
 see any reason why they should not be entitled to deduct the money, 
 not to recover it by way of a cross action, but to deduct it from the 
 unpaid rent. They never paid the rent in full. There appears to us 
 to be no reason why they should not be entitled to deduct every sum 
 they had paid on account of their landlords down to that time. It 
 was the business of the landloi'ds here to get relieved from the assess- 
 ment, which they neglected to do in the first instance, but which they 
 finally effected ; but the tenants in the meantime being assessed and 
 compelled to pay, have a right to make every deduction." 
 
 By a case reserved from the Quarter Sessions, on an appeal against 
 a rate for the parish of H., W. was found to be the occupier of a farm 
 situate partly in H. for 1&5 acres and partly in C. for the residue, and 
 it was held by the Court of Queen's Bench that he was lic(Me to be rated 
 in H., although the boundaries of such land could not be ascertained. 
 And 2Jer Curia^n : " It does not seem necessary that the parish officers 
 should be able to point out which is the land rated" {Regina v. Woods). 
 The occupier of a farm, of which a certain number of acres are in parish 
 A,, and the residue in parish B., is properly rated to the poor rate of 
 parish A., as the occui^ier of the number of acres in that parish, although 
 the specific acres in either parish are not Mown (ib.). And per Lord 
 Campbell C. J. : " It is not necessary for the parish officers to set out 
 the particular boundaries of the laud, in respect of which they rate an 
 occupier " {ib.). 
 
 Emblements can only be claimed in respect of crops which grow by the 
 industry and manurance of man, and which ordinarily repay the labour
 
 44.2 EMBLEMENTS. 
 
 by which they arc produced within the year in wliieh the labonr is 
 bestowed, though in extraci'dinary seasons they may be delayed beyond 
 that period ; and a tenant entitled to emblements can have only one 
 crop of the thing sown, i.e., the crop growing at the time of the deter- 
 mination of his tenancy, although such crop may not compensate him 
 for industry and mannrance bestowed {Graves v. Weld). Emblements 
 extend not only to corn sown, but to roots, hemp, flax, or any other 
 annual profit, but not to young fi'uit-trees, or young oaks, ashes, elms, 
 &c., because they yield no 2}rescnt annual lyrofit. Hops which grow 
 from ancient roots were held, in Lailiam v. At wood, to be " like emble- 
 ments, because they are such things as grow by the manurance and 
 industry of the owner, by the making of hills and the setting of poles." 
 That labour and expense, without which they would not grow at all, 
 seems to have been deemed equivalent to the sowing and planting of 
 other vegetables. Cruise's Dlijest, v. 1, p. 710, 3rd ed., observes that 
 this determination was probably on account of the great expense of 
 cultivating the ancient roots. On this Lord Denman C. J. remarked, 
 in Graves \. Weld, "Latham v. Ativood decides that hops, so far as 
 relates to their annual product only, are only emblements ; but it by 
 no means proves that the person who planted the young hops w^ould 
 have been entitled to the first crop whenever produced." 
 
 If the lessee of a tenant for life sows the land, and dies hfore harvest, 
 his executors shall have the emblements or profits of tJis crop. But now 
 by 14 & 15 Vict. c. 25, s. 1, as regards tenants at rack-rent holding 
 farms or lands under landlords entitled for life or any other uncertain 
 interest, and the lease or tenancy determines by the death or cesser of 
 the estate of the landlord, the tenant shall, instead of claims to emble- 
 ments, continue to hold until the expiration of the then current year of 
 his tenancy ; the succeeding landlord t3 be entitled to recover a fair 
 projJorLion of the rent fur this period, and all the benefits, terms, and 
 restrictions, &c., to apply between the latter and the preceding land- 
 lord ; and no notice to quit is necessary to determine such holding or 
 occupation. And see Stradhroke {Lord) v. Mulcalnj, for a decision on 
 this section of the statute. 
 
 It is stated in Sheppard's Touchstone (Preston), p. 472, that "as 
 leticeen an executor and devisee, the emblements belong to the devisee, 
 unless they are expresshj bequeathed." And so in Cooj^er v. Woolfitt, 
 where a testator devised to W. certain lands called the " Clay-pits," 
 and bequeathed to C. and W. all his moneys, &c., personal estates and 
 effects whatsoever and wheresover, not therein specifically bequeathed, 
 but did not make a specific bequest of crops growing on the land, it 
 was held that the di visee was entitled to the emblements growing upon
 
 HERTOTS. 443 
 
 it at the the time of the testator's decease. " Cox v. Godsalre and West y. 
 Moore prove that emhlements are part of the stock and will pass under the 
 description of ' the stock on a farm' " ; per Lord Gifford M. R. {BJcilie v. 
 Gills). Aiid in Rudge v, Winnell, Lord Langdale M. R. also ruled that 
 devise of real estate in the occupation of the testator in trust for A., 
 with a bequest of " all his live and dead stock, &c., and all his personal 
 estate whatsoever and wheresoever " to B. passes the emblements on the 
 real estate to B. 
 
 At the death of a tenant of the manor, it was the custom to appraise 
 his eflFects, and the best chattel was declared due to the lord, and styled 
 a heriot. Heriots, like quit-rents and ground-rents, are not rateable to 
 the poor {Rex v. Vandenvall). They may be proved by parol to be due 
 on the death of a tenant, though not expressed in the lease ( White v. 
 Sayer.) As a custom may be valid for a heriot on the death of every 
 free tenant holding for a less estate than fee-simple, it follows that it 
 may be valid in respect of a tenement of free lands, held in fee-simple 
 of a manor, as the nature of that estate is not inconsistent with such a 
 custom ; and therefore to prove such a custom, presentments of the 
 deaths of other tenants of other free tenements held in fee of the 
 manor, and the seizure of heriots thereupon, are admissible {Damerell v. 
 Protheroe). And qmcre whether the ancient lease having reserved as a 
 heriot the best beast of the lessee (being one of the lives), Ms executors, 
 administrators, assigns, or such person as should be in possession of the 
 jjremises, and entitled to the same hy virtue of the lease, a lease reserving 
 only the best beast of the lessee (being one of the lives) be good ; but a 
 lease is not bad under the power, which reserves the best beast of the 
 person or persons ivho for the time heing shall he tenant or tenants in 
 possession of the premises {Doe dem. Douglas v. Lock). 
 
 Where, from an entry on the rolls of a manor, it appeared that it was 
 presented, in 1778, to be the custom "that every copyhold tenant 
 that holdeth copyhold lands upon death or alienation ought to pay a 
 heriot," the custom had been in accordance with the entry, but there 
 was no instance shown of an alienation of joint tenants, or of a claim 
 of a heriot from each of several joint tenants on alienation, it was held 
 that iviihout proof of a special custom (of which there was none) one lieriot 
 only was due on a joint alienation of several joint tenants {Padwick v. 
 Tyndale). 
 
 But Holloway v. Berkeley decided that when a copyhold tenement 
 holden hy heriot custom becomes the property of several as tenants in com- 
 mon, tlie lord is entitled to a heriot from each of them ,- but if the several 
 ]X)rtions are re-united, in one person, one heriot only is payable. So in 
 Garland v. Jekyll, it was held that a copyhold property which when in
 
 444 SEIZUEE OF HEPvIOTS. 
 
 the liands of a single owner pays bnt one hcriot, but pays several if 
 divided umoug several owners, shall again pay but one heriot if it again 
 becomes united in the person of a single owner. 
 
 It was held, in Ahington v. Lipscomb, that trover did not lis, ivhere the 
 landlord had marked and demanded seven heriots instead of five. In 
 March, 1838, the defendant's father died, seised of certain customary 
 freeholds, on which heriots were payable to the plaintiff as lord of the 
 manor of Penshurst Halemote, on the death of the tenant. The custo- 
 mary heriot was the best living beast or a stated money payment. 
 The tenements were seven ; they had originally been only five, but 
 two had been divided, and the several parts had passed into different 
 hands, and the whole had become re-united in the possession of the 
 defendant's father. Seven heriots were accordingly claimed, one for 
 each tenement by the bailiff of the manor ; but it was admitted in the 
 argument that according to the rule in Garlands. Jehjll only five were 
 due. The bailiff' claimed to mark seven beasts, a day or two after the 
 death of the defendant's father, and with the consent of the defendant 
 marked fotir horses in the field, one in the stables, and t-<vo cows in the 
 yard. This was in March ; and when he went to claim them in De- 
 cember, the defendant said he should refer it to his attorney and not 
 deliver them up. It was urged for the defendant that the refusal did 
 not under the circumstances show a conversion ; and there was no 
 refusal of five, but only a refusal of seven, and that in fact the only con- 
 version was a refusal to give up the seven unlawfully claimed. The 
 defence in point of fact was an assignment made by the father shortly 
 before his death, which the ])laintiff contended was void by stat. 13 
 Eli^. c. 5, s. 2. The jury found that there had been such an assign- 
 ment with a view to evade payment of the heriot, and returned a verdict 
 of £105 for the plaintiff, leave being given to move to reduce the 
 damages if the plaintiff was entitled to recover, but not for so many as 
 seven heriots, or to enter a nonsuit if the Court should be of opinion 
 that the above statute did not apply, or that the evidence did not show 
 a conversion. The Court held that that there was no conversion, and 
 a rule for entering a nonsuit was made absolute, on the grounds put by 
 Lord Denman C. J., that " the demand had reference to a seizure actually 
 made of seven beasts, when the plaintiff had only a right to seize five. 
 Supposing it then to be clear that the demand and refusal amounted 
 to a conversion of five, still it is left uncertain which five he lawfully 
 seized. If he is entitled to the best beast as an heriot, he must form a 
 judgment and exercise an option as to which is best. This is clear 
 from Woodland v. Mantel!, Fcter v. Ktioll, and Odiham v. Smith." And 
 see Fri^e v. Woodhouse,
 
 ACTION FOR USE AND OCCUPATION. 445 
 
 In the case of The Manor of BasingstoTce v. Lord Bolton there was 
 a bill by the lord of a manor against the tenant, alleging immemorial 
 payments, as rent, or in the natnre of rent, on the death of each tenant 
 by his successors, in respect of thirty-eight different estates. The pay- 
 ments were in lieu of heriots and reliefs. It appeared by the evidence 
 that the heriots were more probably heriot custom than heriot service, 
 and that the relief was by custom, and not by common right or by 
 reservation. Some of them had been j^aid by the executors of the 
 deceased ; it was not shown that the tenant was in possession of all 
 the lands alleged to be liable ; and only the aggregate amount of rent 
 was known, not the proportion due to each estate ; and Kindersley 
 V.-C. held that under these circumstances the lord had no equity 
 against the successors of the deceased tenant, although it appeared that 
 in consequence of the description and identity of the lands being lost 
 he could not enforce any claim at law. Commissioners of enclosure 
 have no powers, in exchanging freehold lands subject to heriots and 
 reliefs, to make the lands allotted so subject (ih.). 
 
 The ad mi for vse and occupation existed before statute 11 Geo. II., 
 c. 19, but until the passing of that act the plaintiff was nonsuited if a 
 demise was proved. Except in that particular the statute did not make 
 the action maintainable in cases where it could not have been main- 
 tained before {Churchivard v. Ford). According to the words of section 
 14 of the statute it may be maintained *' where the agreement is not by 
 deed." Some agreement seems to be implied as the foundation ; though 
 it is well established that it need not amount to a formal demise, or 
 even be express. And jjer Patteson J . : "Corporations aggregate may 
 maintain actions on executed parol contracts. In The Bean and Chapter 
 of Rochester v. Pim'ce, Lord Ellenhorough C.J., first at Nisi Prius, and 
 the Court of Queen's Bench afterwards, held that they might sue in 
 debt for use and occupation of their lands ; and the Court of Common 
 Pleas, in The Mayor of Stafford v. Till, held the same as to assumpsit. 
 This establishes that where a benefit has been enjoyed, such as the 
 occupation of their land by their permission, tlie law will imply a 
 promise to make them compensation, which promise they are capable 
 of accepting, and upon which they may maintain an action " {Beverley 
 V. The Lincoln Gas Light and Coke Company). 
 
 An action under the statute will not lie ivhere there has not heen an 
 actual entry ly the lessee {Lowe v. Boss). " Before the statute an action 
 for use and occupation might be maintained, unless an actual demise 
 were shown ; proof of which was held (though not uniformly,) to be fatal 
 to the action, either on the ground of its showing a real contract, or 
 because the demise having passed an interest, the defendant could not
 
 446 PAROL DEMISE. 
 
 be said to occupy by the plaiutiff's pcrmissiori. In some instances an 
 exception was allowed, where an express promise could be proved or 
 intended. The alteration introduced by the statute was, that proof of 
 a demise unless by deed was no longer fatal to the action ; but the 
 terms of the demise might be used as evidence of the quantum of 
 damages (6 A. &, E. 839 n.)." Bebtiov use and occupation lies at common 
 law, where there is an express demise at a certain rent, not by deed 
 {fJibaon V. Kirk). Afier referring to the above note, in which all the 
 principal cases are collected, Lord Denman C.J. added : " The Court in 
 Jjeverley v. The Lincoln Gas-light and Coal Company observed that an 
 action for use and occupation is established by 11 Geo. II., c. 10, which 
 expression must not be taken as meaning that it was introduced by the 
 act, but only that it was established, even in cases where there was an 
 express demise at a certain rent, though not under seal. Yet no instance 
 of indebitatus assumpsit for use and occupation will be found before that 
 act, nor any founded upon a quantum meruit ; they are all for some fixed 
 sum. So debt for rent was at all times maiutainable, whether the demise 
 was by deed, or by writing not under seal, or by word of mouth ; both 
 which latter are, of course, included in the expression 'j;ar<9^ demise,' so 
 frequently met with in our books (ib.)." 
 
 Although an action for tise and occyjmtion requires some agreement 
 exirress or implied, to pay for the occupation, yet there may be a liahUity 
 for use and occupation where no action for rent could be maintained ; 
 and therefore if a party enter under an agreement for a demise at a 
 certain rent- — the rent not to commence until the repairs are completed 
 by the landlord, the agreement being silent as to the terms of the 
 present occupation — the entry and occupation before the repairs are 
 executed may be evidence to go to the jury of an implied agreement to 
 pay in the meanwhile what the premises were worth. And even if the 
 tenant leave before the repairs are executed, the question will be 
 whether there was such an implied agreement ; and if there were, he 
 will be liable for a reasonable compensation for his occupation {Smith 
 V. Eldridge). And see Johnson v. 31ay ; Freemason v. Booman ; Ilason 
 V. Welbank ; and Jones v. Clark. And as to tJie distinction between an 
 action for rent and an action for use and occupation, see Towne v. 
 UEynrick, where the Court of Common Pleas held iu an action for the 
 " use " of a house, that an actual or constructive occupation must be 
 proved, and that the fact of the defendant giving directions on the 
 premises to workmen whom the landlord sent in to do repairs, was no 
 evidence of an entry to take possession, which is necessary to charge a 
 j)arty in this form of action. 
 
 Use and occupation will not lie if a title is in dispute. Where a lease
 
 OWNERSHIP AND TENANCY EVIDENCE OF CONTRACT. 447 
 
 for a term certain was granted by writing not under seal, which con- 
 tained an undertaking on behalf of the lessor and his assigns for quiet 
 enjoyment, it was held that his assignee might maintain assumpsit for 
 use and occupation ; for the lessor having granted for himself and his 
 assigns, the permission of any person who might become assignee of 
 the reversion during the lease was virtually included, so that the occu- 
 pation became in point of law permissive on the part of the assio-nee as 
 soon as his interest accrued (Sfanden v. Christmas). An action for 
 use and occupation is one of contract, and is founded on the relation of 
 landlord and tenant ; it therefore requires evidence of an occupation hy 
 the permission of, and under a contract tvith, the jjlaintijf; and though 
 the title on the part of the plaintiff and occupation by the defendant 
 may, in the absence of any other evidence, be a prima facie case from 
 which such a contract may be inferred, yet where the letting has been 
 by another party, the plaintiff will not be allowed to recover ; and 
 so where he fails to prove title or actual contract with himself {C%icrc?i- 
 ward v. Ford). And ivhere the letting has been hy another party , mere 
 notice by plaintiff (even though he has the title) to pay the rent to him 
 will not convert the occupation into an occupation by his permission 
 and under a contract with him ; for such notice, unless assented to by 
 the tenant, does not create a new contract, and can only enable the 
 party to bring ejectment to recover possession of the premises (/&.). 
 
 And per PollocTc C. B. : " There are cases — Hidl v. Vaughan ; 
 Howard v. Shaw ; and Winterbofham v. Ingliam — which show that 
 ownership in the plaintiff and tenancy in the defendant are prima 
 facie evidence of such an implied contract as will sustain the action. 
 If indeed you show positively that there was no contract, it will be a 
 different question ; but if nothing else appears than the plaintifi"'s 
 ownership and the defendant's tenancy, there is a prima facie evidence 
 of an implied contract sufiicient to sustain the action. It was so laid 
 down in Hellyer y. Sillcox." And jyer Bramicell B. : '^ In every case 
 a contract must be shoivn, in order to enable the plaintiff to recover 
 {Gibson X. Kirk). Now here, instead of this being shown, the contrary 
 is shown ; for it is shown that the defendant did not occupy by per- 
 mission of the plaintiff, under any contract with the plaintiff, but by 
 the permission of Mrs. Foss, under a contract with her. It would not 
 only be contrary to all the principles of law and reason, but would lead 
 to gross injustice, if a tenant should be held liable to one party as 
 landlord on a contract made with another. It is not found as a fact 
 that Mrs. Foss let the premises as agent of the plaintiff. In Hellyer v. 
 Sitlco.T the Court of Queen's Bench thought that the occupation was 
 by permission of the plaintiff. In Standen v. Christmas there had not
 
 448 AGREEMENT VOID BY FEAUD. 
 
 only been a notice to pay rent to the plaintiff, but the defendant had 
 afterwards paid rent to him ; and the Court were in en'or in saying that 
 to give an action for use and occupation, the relation of landlord and 
 tenant need not subsist between the parties. Tlie ivord "■ landlord " 
 v)i2)Jies not tJie mere lordship or owrm'sMp of the soil, iut tJie relationship 
 to a tenant. 
 
 Use and occupation arc not maintainahlc where the, express agreement 
 is void hij reason of fraud. But the plaintiff having paid the rent to 
 the superior landlord, Wight man J. directed a verdict for the plaintiff 
 on the count for money paid. And per Wightman J.: "The ft-aud 
 destroying the express agreement between the parties, there can be no 
 implied contract ; and use and occupation are not maintainable with- 
 out a contract " {Davg v. CraclnicU) ; and it is some evidence to go to 
 tliejury in support of a count for use and occupation that a fixed pay- 
 ment has been made for many years in respect of the land in question 
 by the defendant to the plaintiff, the defendant abstaining from all ex- 
 planation of the origin or grounds of that payment, which it seemed 
 he was able to give {Hardon v. HesTcett). 
 
 Where the circumstances icarrant an inference in fact, that it ivas agreed 
 by both 2)laintiff and defendant at the time of the execution of the instru- 
 ment, that it should not operate as a lease until the payment of tJie balance 
 of an agreed sum for fixtures, though no express words of delivery as an 
 escrow were used, it did not operate as a deed till then ; and therefore 
 the defendant was held to be tenant from year to year under the terms 
 in the instrument, and not tenant under a deed, and an action for use 
 and occupation lies against him or the assignee of his interest {Gudgen 
 V. Besset). 
 
 If A. agrees to M lands to B., tcho permits C. to occupg them, A. may 
 recover the rent in an action against B. for use and occupation {Bull v. 
 Sibbs). 
 
 Receiving the rents and profits from an vnder-tenant, is proof of use and 
 occupation by the person receiving them {Neal v. Stciml) ; and a lessee, 
 whose underlessoe holds over against his ivill after the expiration of the 
 term, is lialjle in this action for the period of the holding over, but not 
 for a whole year's rent {Ibhs v. RirJiardson). Where there is a parol 
 (Umisc to two parties joinllg, and one enters in respect of both, the other, 
 who is not proved to have entered at all, is equally liable to an action 
 for use and occupation {Glen v. Dungeg). 
 
 Wlu'.re a part g is let into possession (f land under a contract to purchase, 
 tvhich afterwards goes off, he is liable to an action for use and occupation. 
 at the suit of tlie vendor, for the period during which he continues in 
 possession after the contract went off {Howard v. Shaw). If he had
 
 USE AND OCCUPATION. 449 
 
 entered under an agreement /<??• a lease, he voidd have Leen a tenant-at- 
 will until it was granted.. And j>^t Alderson B. : " While the defendant 
 was in possession under the contract for sale he was a tenant-at-will, 
 under a distinct stipulation that he should be rent-free ; therefore for 
 that time no action for use and occupation can be brought against him ; 
 but when that contract is at an end he is a tenant-at-will simply; there- 
 fore from that time he is to pay for the occupation (/&.)• If a vendor 
 remains in possession toithoul any agreement after the conveyance is 
 executed, such occupation does not of itself entitle the vendee to sue 
 him in use and occupation, as there is no evidence of a holding by 
 permission of the plaintiif ; but he is a wrong-doer, and may be turned 
 out by ejectment, and is liable in trespass for mesne profits {Tew v. 
 Jones). 
 
 In Orij)j)s V. Blank, a person having a title to land sued the de- 
 fendant, who had received possession from a third person, and it was 
 held that tite conditiojial promise of the defendant about two years before 
 the trial, tvhen the plaintiff became owner of the land, and ashed him either to 
 give up possession of it or pay for it — " I do not consider the land as 
 yours ; but prove your right, and I will pay for it " — would not sup- 
 port assumpsit for use and occupation. At the trial the learned judge 
 was of opinion that the action would not lie in the absence of proof of 
 an unqualified attornment, and directed a nonsuit, which the Court 
 upheld. Bayley J. said : " The general rule certainly is, that if A. 
 receives possession of land from B., he cannot dispute the title of the latter 
 in an action for use and occupation ; but where he receives possession 
 from another person, he may dispute the title of the party suing as 
 landlord. Here the defendant did not receive possession from the 
 plaintiff, and therefore the evidence produced could not support use 
 and occupation." 
 
 According to Rabbeth v. Squire, the words " iise and occapation^^ in 
 a will do not exclude under-letting. There a testator desired that his 
 two sons might have ^^ the use and occupation" of certain lands, they 
 paying a stated rent, and that in default of payment, or if they con- 
 verted the arable land into tillage, they should no longer have " posses- 
 sion " thereof ; and it was held by Sir J. RomiJly M.R. that personal 
 use and occupation was not enjoined, and that they might imderlet the 
 property. 
 
 Although a demise be for a time certain, a landlord must make a demand 
 of possession, and give notice in writing, in order to recover double value 
 under statute 4 Geo. II. c. 28, s. 1. An action for double value lies in 
 the County Courts established under statute 9 & 10 Vict. c. 95 ; and 
 per Coleridge J. : *' There is no doubt that debt for use and occupation
 
 450 ACTION FOR DOUBLE VALUE. 
 
 und for double value are distinct causes of action within that statute ' 
 {Wickham \. Lee). Doulle rent is given by statute 11 Geo. II. c. 19, 
 s. 18, which was enacted to meet the difficulty which landlords had with 
 tenants who had power to determine their own leases, and refused to 
 give lip possession pursuant to their notice, when the landlord had 
 agreed with another tenant for the same [Johnstone v. Huddlestone). 
 A tenant who after having given notice to quit hotds over for a year, paying 
 doulte rent, according to stat. 11 Geo. II. c. 19, s. 18, may quit at the end 
 of such year icifhouf fresh notice (Booth v. Macfarlane). Patteson J. held 
 that if a landlord allows his tenant to hold over above a year without 
 taking any step to recover the premises, he is not entitled to the benefit 
 of 1 Geo. IV. c. 87, s. 1, which "enables landlords more speedily to 
 recover possession of lands and tenements unlawfully held over by 
 tenants " {Doe dem. Thomas v. Field). 
 
 It is only the lessor or the person ivho stands in the situation of land- 
 lord, and not any one icho derives a title from the lessor, who can, under 
 4 Geo. II, c. 28, s. 1, sue a tenant for double value tvhen there has been 
 a holding over after determination of the tenancy ; and therefore where 
 A. B., who had let certain premises to the defendant, under a letting 
 which expired on the 25th March, 1858, and had required the de- 
 fendant, by notice in writing, to deliver up possession on that day, 
 afterwards, but before the end of such tenancy demised the premises 
 to the plaintiff from such 25th of March, 1858, and the defendant held 
 over without paying rent to or otherwise recognising the plaintiff as 
 landlord, it was held that the plaintiff was not the proper person to 
 sue the defendant for double value under such statute {Blatchford^. 
 Cole). 
 
 Where there is a demise to two co-tenants for a term, and one holds over 
 after the expiration of the term ivithout the other's assent, the other is not 
 liable for rent becoming due during such holding over (Drapery. Crofts). 
 But in Christy v. Tancred — one co-tenant, who assented to the other's 
 holding over after the expii-ation of the term, was held equally liable 
 with him in use and occupation, so long as the latter continued actually 
 to occupy, but no longer. 
 
 A tenant Jiolding over cfter the expiration of a lease for years may be 
 taken to hold upon any of the terms of such former lease as are consistent 
 with a yearly tenancy, and whether he does so hold or not is a question 
 for the jury on the facts proved ; and a covenant in a lease for years 
 ending at Michaelmas that the tenant shall and may retain and sow 40 
 acres of wheat on the 213 acres of arable land demised, at the seed-time 
 next after the end of the term, and have the on-stand thereof till the 
 harvest then next following, with the use of the premises for thrashing,
 
 ACTION FOR HOLDING OVER. 451 
 
 &c., till a day named, is a term which may be made incident to a tenancy 
 from year to year {Hyatt v. Griffiths). 
 
 It was decided in Thomas v. Packer that a p'oviso in a tease for re- 
 entry on nonjxujmcnt of rent, is a condition which attaches to a yearly 
 tenancy created by the tenant holding over and paying rent after the 
 expiration of the lease. In Dighy v. Atkinson it was held that a covenant 
 to insure was applicable to a new yearly holding. And in Doe clem. 
 Thomson v. Amey, it was held that where a party is let into possession, 
 and pays rent under an agreement for a future lease, which is to contain 
 a covenant against taking successive crops of corn, and a condition of 
 re-entry for breach of covenant, he thereby becomes a yearly tenant sub- 
 ject to that condition. And a right of re-entry for hreach of covenant in 
 a lease is waived hy the lessor bringing an action for rent accrued due 
 subsequent to the breach {Bendy v. Nichott). 
 
 The Court of Common Pleas have held in Bramtey (appel.) v. Ches- 
 terton (resp.) that if a landtord, after giving a yearty tenant notice to 
 quit at the end of his year, afterwards agrees to tet the premises to A. 
 from the end of the year, and informs the tenant he has done so, who 
 nevertheless holds on the premises for another quarter, and is ejected, 
 the landlord is not prevented by the receipt of rent from the tenant 
 for such extra quarter from bringing an action against him for the 
 damages occasioned by his holding over, and may recover in that 
 action as damages the amount of the ordinary damages which he has 
 had to pay in an action brought against him by A. for not giving 
 him possession at the time agreed on, and also the costs of such 
 action. 
 
 Where A. demised to B. certain lands and premises for one year 
 certain, and then from year to year, so long as the parties should think 
 proper, with power to determine it on giving notice to quit, and the 
 lease contained various terms and conditions as to the management 
 of the land and repairing the buildings, and on the lessee's death his 
 executors entered into the occupation of the premises, and continued 
 to occupy and paid rent, the latter were held to be chargeable in their 
 personal character upon the terms contained in the original demise, 
 their continuing to occupy, and the landlord's abstaining from giving 
 notice to qnit, raising an implied promise on their parts to abide by the 
 terms of the original contract {Buckirorth v. Simjjson). And^;er Parke 
 B. : "7/" the tenant assigns, and the landlord do not give notice to 
 quit, the assignee must be taken to hold on the same terms. That 
 contract the law will imply ; otherwise the consequence would be that 
 np action could be brought on the original demise when there is an' 
 occupation from year to year, and the tenant assigns, for there is no 
 
 G G 2
 
 452 ACTIONS BY TENANTS IN COMMON. 
 
 contract wliatevcr unless tlic original contract is transferred by opera- 
 tion oflaw" ( //;.)• 
 
 Tenants-in-common may join in suing for use and occiipaf ion a, tenant 
 holding under them ; and payment of rent to an agent " on behalf 
 of the family " is evidence of such holding (Last v. Dinn). An action 
 for rent hy tenants-in-common is in its mdure a joint action, and conse- 
 quently the survivors may sue for the tvlwte, though the reservation be 
 to the lessors according to their respective interests (TFa//«fe v. J/ftc- 
 laren). And it was decided by the Court of Exchequer Chamber, in 
 Henderson v. Eason, that if one of two tenants-in-common soJety occupy 
 land, farm it at his own cost, and take the produce for his own benefit, 
 his co-tenant cannot maintain an action of account against the former 
 uuder 4 Anne, c. 16, s. 27, as his bailiflf, by reason of the former having 
 received more than comes to his just share and proportion ; the statute 
 applies to cases where rent or payment in money or in kind, due in 
 respect of the premises, is received from a third party by one co-tenant, 
 who retains for his own use the whole or more than his proportional 
 share. 
 
 Where it appeared in evidence that A. and B. had taken some jKisturage 
 joititly, and that each had turned his cattle upon it (how many was 
 not shown), and that A. paid the whole rent, it was held by Patteson 
 J., in making a rule absolute for a new trial, in an action against 
 B. for half the sum so paid by A., that the jury were not warranted in 
 finding that the share of each was a moiety (Siuirpe v. Oumminys). " If 
 they took the catage together," said his Lordship, " I think it must be 
 taken that there was a partnershiji, and this case does not come within 
 the rule in Venning v. Lechie, inasmuch as it was not a payment before, 
 but in consequence of the partnership. Suppose they had taken a farm 
 together, can there be any doubt that there would have been a partner- 
 ship then, and that the plaintiff could not have recovered a payment 
 like this ? " 
 
 TliC reservation of a rent in corn means the legal quarter of eight 
 gallons to the bushel. Cwi-n purchased in open market may by the 
 law of Scotland be recovered from the buyer to satisfy rent in arrear 
 of the current year, the corn being part of the produce of that year of 
 the land rented ; and this decision was affirmed by the House of Lords 
 {TJuntop V. JJalhoiii<ie). 
 
 Where in a lease of land for 21 years from the 25th of March, 
 1848, it was covenanted that the lessee should pay a stipulated sum 
 for the first year, with a proviso that the rent for each subsequent year 
 of the term shoiddle reduced or increased according to " the aver acje price 
 of ic Ileal in any one year of the said term," such average " to be taken
 
 LIABILITY OF REVERSIONER. 453 
 
 and ascertained from the then current year's averages which were taken 
 in the month of January in every year under and by virtue of the 
 Tithe Commutation Act, G & 7 Will. IV. c. 71, s. 56," which is the 
 result of the sales " during seven years ending on the Thursday next 
 before Christmas-day then next preceding " — it was held that the rent 
 must be computed according to such septennial average so published 
 in each year, and not, as the defendant contended, according to the 
 average price in any one year of the term {Kendall v. Barker). 
 
 A nuisance of a permanent character having been created on land in 
 the occupation of a tenant from year to year, the reversioner is liable 
 for damage caused by it, if it be shown that since the creation of the 
 nuisance, and before the damage, he might have determined the tenancy 
 and did not, such continuing of the tenancy being equivalent to a re- 
 letting ; and it is no defence that he had no notice or knowledge of the 
 existence of the nuisance. {Gaiuhj v. Tuhher, 33 L. J. (N. S.) Q, B., 
 p. 151. 
 
 In the Duke of 3Iarllwrovgh v. Oslorn, 33 L. J. (N. S.) Q. B.,p. 148, 
 it was held that a clause in the lease " the tenant to perform each year 
 for the Duke of Marlborough, at the rate of one day's team-work, with 
 two horses for every £50 of rent when required (except at hay and corn 
 harvest) without being paid for the same," extends to other than 
 agricultural work, such as hauling coals ; but it does not oblige the 
 tenant to find a cart, plough, or other vehicle or machine necessary for 
 the performance of the work. 
 
 In the case of Crouch v. Tregonning, 7 L. R. Ex. 88, plaintiflp took a 
 farm under lease for seven, fourteen, or twenty-one years from 1858. The 
 lease contained a covenant not to assign or under-let without the written 
 consent of the landlord. The plaintiff, however, sold all his interest in 
 the farm to the defendant by a memorandum of agreement, dated March 
 10th, 1869, and the defendant entered into occupation in the following 
 May. This agreement was not under seal ; nothing said in it about 
 payment of rent, and the landlord's license was not obtained. The de- 
 fendant paid the rent to the landlord's agent in plaintill:"'s name, and 
 the receipts were also made out in his name. In March, 1870, the 
 defendant gave the landlord notice to quit at Michaelmas, 1870, and he 
 left the farm at that time. The farm remained empty from Michaelmas, 
 1870, to March, 1871, and the plaintiff having paid this half-year's rent 
 to the landlord sought to recover the amount from the defendant. 
 
 It was held, however, that he was not entitled to recover, there not 
 having been any promise to indemnity the plaintiff against rent accruing 
 after the defendant's occupation had ceased, nor any such relation of 
 landlord and tenant existing between the parties as would entitle the
 
 454 COVENANT TO EErAIR. 
 
 plaintiff to the repayment by the defendant eitlier as rent or compensa- 
 tion for use and occupation of the sum paid to the hmdlord by the 
 plaintiff". 
 
 In the case of Feiv v, Perlcins, 2 L. E. Ex. 92, an indenture of lease, 
 vrith a clause for re-entry, contained a general covenant on the part of 
 the lessee to the premises demised in repair, and a further covenant 
 that he would, within three months after notice from the landlord, do 
 all repairs specified in the notice. The demised premises being out of 
 repair, the landlord gave the lessee notice to repair in accordance with 
 the covenants of the lease. Before the expiration of three months 
 ejectment was brought, and it was held that the notice was not a waiver 
 of the forfeiture incurred by the breach of the general covenant to 
 repair, and that the action was maintainable. 
 
 In the case of Hooper- v. ClarTc, 2 L. R. Q. B. 200, one Campbell de- 
 mised the exclusive right and license to take and kill game on certain 
 land, with the use of a cottage, to the defendant for a term, and de- 
 fendant covenanted to leave the land as well stocked with game at the 
 end of the term as it was at the time of the demise. Campbell assigned 
 his reversion in the land and hereditaments to the plaintiff, who brought 
 an action at the end of the term against the defendant for a breach of 
 covenant, and it was held that the plaintiff, as assignee of the reversion, 
 could sue upon the covenant on the demise, was not a mere license, but 
 the grant of an incorporeal hereditament. 
 
 The case o^ Mum v. Fahian, though referring to a house, may, never- 
 theless, be considered important to occupiers of land : a landlord ver- 
 bally agreed with his tenant to grant him a lease for twenty-one years 
 at an increased rent, but died before the lease was executed. Before 
 his death, however, the tenant had paid a quarter's rent at the increased 
 rate : held, that this payment of rent constituted a sufficient part per- 
 formance to take the case out of the Statute of Frauds, and specific 
 performance was decreed. 3Imn v. Fahian, 1 L. R. Ch. 35. 
 
 The leading case on fixtures is Ehces v. 3Ia.iv. About fifteen years 
 before the expiration of his lease the defendant erected upon his farm, 
 at his own expense, a substantial heasf -house, a carpenter'' s shop, a 
 fuel-house, a curt-hovse, a pvmp-honse, and fold-yard. The buildings 
 were of brick and mortar, and tiled, and the foundations of them 
 nearly one foot and a half deep in the ground. The carpenter's shop 
 was closed in, and the other buildings were o])cn to the front, and sup- 
 ported by brick pillars. The fold-yard wall was of brick and mortar, 
 and its foundation was in the ground. 1'lie defendant, previous to the 
 exi)iration of his lease, pulled down the erections, dug up the founda- 
 tions, and carried away the materials, kaviug the premises in the same
 
 LEADING CASE ON FIXTURES. 455 
 
 state as when he entered upon them. These erections were necessary 
 and convenient for the occvpaiion of the farm, "which could not -well be 
 managed without them. A verdict was found for the jDlaintiif for £60, 
 and the question submitted to the Court of King's Bench was whether 
 the defendant had a right to take away these erections. The defendant 
 relied on the cases of Dean v. AllaJley, where the tenant was held 
 entitled to remove Dutch barns ; Lord DucUey v. Lord Ward ; Penton 
 Y.RoMrt; Lawton v. Laivton ; Ciiltiny v. Tuffnal (where the barn's 
 weight sank it into the ground, though the foundations were not dug) ; 
 and Gould J.'s opinion in Fitzherherf v. Shaw, as to what would have 
 been the right of the tenant as to the taking away a shed luilt on hrick- 
 worlc, and some posts and rails which he had erected, if he had done so 
 during the term. The Court of King's Bench confirmed the finding of 
 the jury, and decided that the defendant had no right to remove these 
 erections. Lord Eltenhorovyh C.J. said : " The general rule in the 
 first-mentioned case on the subject, as between heir and executor (Year 
 Book, 17 Edw. II. p. 518, and Co. Litt. 53, Cooke v. Humphrey, &c.) is 
 that where a lessee having annexed anything to the freehold during his 
 term, afterwards takes it away, it is waste. This rule at a very early 
 period had several exceptions attempted to be, and at last effectually, 
 engrafted upon it, in favour of trade, and those vessels and utensils 
 which are immediately subservient to the purposes of trade. But no 
 adjudged case has yet gone the length of estabhshing that buildings 
 subservient to the purposes of agriculture, as distinguished from those 
 of trade, have been removable by an executor of the tenant for life, nor 
 by the tenant himself who built them during his term." 
 
 In Culliny v. Tujfncd, decided by Lord Ch. J. Trehy at Nisi Prius, 
 the ham ivas only battens and blocks of timber, lying upon the ground, but 
 not fixed in or to the ground, and the tenant therefore, without even any 
 custom of the country, had a right to remove them. 
 
 In Wansbroitgh v. Maton the plaintiffs held some land as tenants 
 to the defendant, for a term of years determinable on lives. On the 
 expiration of the last life the plaintiffs quitted possession, and the 
 defendant demised the land to a new tenant, who entered. When the 
 plaintiffs quitted they left on the land a stavel barn which they had 
 erected, and for which the action was brought. It consisted of wood 
 resting on, but not fastened by mortar or otherwise, to the caps or 
 blocks of stone (called stavels or staddles) fixed into the ground or let 
 into brickwork, the brickwork being built on and let into the ground 
 in those parts where tlie ground was lowest, for the purpose of making 
 an even foundation for the barn to rest upon. The wooden barn could 
 be taken away without injury to the rest. It is usual, in the part of the
 
 456 REMOVAL OF WATER FENDER. 
 
 country (Salisbury) where the barn stood, for the tenants who have 
 built such barns to remove them on quitting, or to have them valued 
 to the incoming tenant. The plaintiflFs, after the new tenants had 
 entered, demanded the barn of the defendant off the premises. The 
 defendant said they should not have it till they had agreed with him 
 as to another matter in dispute ; and they afterwards sent men to bring 
 it away ; but the defendant being then on the premises, ordered the 
 men to quit the ground, and locked the gates after them. The defen- 
 dant's counsel applied for a nonsuit, on the grounds, first, that the 
 barn was a fixture for which trover would not lie, and secondly, that 
 no conversion was proved. Liberty was given to move to enter a 
 nonsuit on both points, but the Court of Queen's Bench refused a 
 rule to show cause on the point of the conversion, but granted it on the 
 other. 
 
 In discharging it they observed, if they were to decide it was a fixture 
 they should be overruling the decision in Rex v. Oilcy, where it was 
 decided that the ivooden ivindmill resting by its own weight on a brick 
 foundation was not annexed to the freehold. That, too, was a strong 
 case, for the mill and ground had been demised together by the same 
 person to the pauper, yet it was held that the mill did not constitute a 
 part of the tenement so as to make up the annual value of XlO. 
 
 In Wood V. Hewett, the question for the Court of Queen's Bench was, 
 whether tlte water fender or hatch resting on masonry and brickwork fixed 
 into the bank of the mill stream, on the soil of the defendant (who was 
 tenant from year to year of the close adjoining the mill stream) became 
 his property as a necessary consequence of its position. It had been 
 placed there 43 years before, at the time of a former occupier of tlie 
 close, under whom the defendant claimed. About nine years before 
 this action, repairs had been done to the masonry, with assistance from 
 the plaintiff ; and soon afterwards the plaintiff removed the fender and 
 put in a new one, but without the consent of the tenant for life, who, 
 when he knew what had been done, threatened to bring an action. Tlie 
 Court held, on the authority of Rex v. Oticy and Mant v. C'ottins, that 
 where such chattel has been annexed by its owner to another's freehold, 
 but may be severed without injury to the freehold, it is not neces- 
 sarily to be inferred from the annexation that such chattel becomes 
 the property of the freeholder. Whether in a particular case it has 
 become so or not, may be a question on the evidence ; and a jury may 
 infer, from user or other circumstances, an agreement that when the 
 chattel was annexed the original owner should have liberty to take it 
 away again. 
 
 Wiltshear v. Cottrell was an action for an injury to the reversionary
 
 AGRICULTURAL FIXTURES. d<57 
 
 estate of the plaintiff in premises occupied by a tenant of the name of 
 May, by removing some sfaddles, a thrash iiKj-maclii tic, and a granary. 
 Plaintiff had purchased the premises in question I'rom the devisees in 
 trust of one Thomas Cottrell deceased, the father of the defendant, and 
 tliey had been conveyed to the plaintiff by a deed, to which the de- 
 fendant was a party, as one of the devisees. Immediately after the 
 conveyance the plaintiff demised the premises to May, and after such 
 demise the erections in question had been removed from them. The 
 deed which the defendant had executed conveyed the land and q\\ fixtures 
 to the plaintiff in fee, and it appeared that the erections had been put 
 on the land by the defendant's father, who had subsequently become 
 owner in fee, and under whose will the title had come to the defendant. 
 The staddles were erections for the support of a rick : they were stone 
 }jillars mortared into a foundation of brick and mortar, which was let 
 into the earth : stone caps were mortared on to them at the top ; and 
 on these the ricks rested. The thrashing-machine was placed inside 
 one of the barns (the machinery for the horse being on the outside), and 
 there fixed by screws and bolts to four posts which were let into the 
 earth. The granary consisted of a wooden shed tiled over, and rested 
 by its mere weight upon a wooden frame supported by staddles similar 
 to the first-named. Evidence had been given at the trial to show that 
 by the custom of the country an out-going tenant had the right to re- 
 move such things at the expiration of his tenancy, and it was further 
 contended that he was entitled to do so by the general law of the land. 
 This the plaintiff denied, and contended that even if it were so, the lan- 
 guage of the conveyance took away the right. 
 
 A verdict was taken for the plaintiff for c£30, the parties agreeing 
 that the staddles and thrashing-machine should be estimated at <£10, 
 and the granary at £20, and leave was reserved to enter a verdict for 
 the defendant, or reduce the amount of damages. The Court of 
 Queen's Bench held that the defendant being a party to the convey- 
 ance, could not set up any right to remove any of the articles as fixtures 
 removable by an agricultural tenant at the expiration of his term. The 
 land and everything attached to the land passed by the deed, and there 
 was no tenant-right to remove them. The real question therefore was, 
 whether all or any of the articles passed by the conveyance under the 
 words "and all fixtures" ; and it was held that the staddles and the 
 thrashing-machine clearly did, and that as they were really attached to 
 and part of the land, their removal was clearly an injury to the rever- 
 sionary estate, as a removal of so much of the land, so as to make the 
 first count applicable. The question as to the granary was a different 
 one, as it was proved that that was not attached except by its weight
 
 458 LARGER MEANING OF FIXTURES. 
 
 to the stiiddlcs, and that by sufficient power it might have been lifted 
 from tlie staddles without disturbing; them. Hence it was decided that 
 the granary was a mere chattel, and would not be a fixture in the ordi- 
 nary sense of the word, though it might pass by that word, if from the 
 rest of the conveyance an intention appeared of comprehending farm 
 machinery in general ; but that even then the plaintiff could not recover 
 against the defendant for carrying it away, either as for an injury to 
 the reversion in land, the chattel not being part of such reversion, or, 
 according to Gordon v. Harper, in trover (the second count), as the pos- 
 session of the chattels for the term was in May, the tenant at the 
 time of removal. The Court, however, intimated that, considering 
 this article was put up so long ago by a party who became owner of 
 the freehold, it seemed to have been always demised with the freehold, 
 ;uul remembering the larger meaning of which Baron Parlce had shown 
 the word "fixtures" to be capable, they might have held that it 
 passed as a chattel, if either count could have been BU}>ported on that 
 supposition. 
 
 TJie "■larger mean'mcf was given to fixtures by Porlce B. in Sheen v. 
 Reekie, where he says, "It does not necessarily follow that the word 
 * fixtures ' must import things affixed to the freehold, nor has the word 
 necessarily acquired that legal sense. It is a very modern word, and 
 is generally understood to comprehend any article which a tenant has 
 the power of removing, as appears fi-om the case of Colegrave v. Dios 
 Santos; but even this is not its necessary meaning; it only means 
 something fixed to another ; and every article in this declaration (stores, 
 shelves, closets, cupboards, &c.) may be a purely movable chattel, and 
 the fit subject for an action of trover. For instance, they might be 
 affixed to a bam, or other structure so supported, as that it might itself 
 be the subject of this form of action." Coleridge J., in delivering the 
 judgment of the Court in Wilts/tear v. Cottrcll, thus summed up the 
 authorities on which a granary of this description was considered a mere 
 chattel, and neither as a part of the land, or so affixed to the freehold as 
 that its severance would give a cause of action for injury to the rever- 
 sionary estate in the land, the subject of the first count : " In Gutting 
 V. Tiiffnal, a lam ncrted on pattens and btoclrs of wood, but not itself 
 fixed in or to the ground, was held to be removable. The custom of the 
 country was relied on in that case, as making such erections removable 
 by an outgoing tenant; but Lord Ettentiorough, in the great case of 
 L'twes V. 31au\ in referring to Gnlting v. Tuffnat, treats tlie barn as 
 liaving been clearly removable without any custom, because it was not 
 a fixture at all, as not being fixed in or to the ground. In Wanshrough 
 V. Maton it was decided that a barn resting by its mere weight on a
 
 REMOVAL OF TIMBER CATTLE-HOUSE. 459 
 
 brick foundation was not a fixture, but a mere chattel, for which trover 
 might be brought. Mr. Justice Paftcson referred to that case in Rex 
 V. Otlei/, where it was held that a ivindmill resting lij mere tveigJd on 
 a foundation of hrick was not a part of the freehold so as to contribute 
 to the value of the tenement ; and in Rex v. Londonthorpe it was held 
 that a windmill not attached to the ground, but constructed on cross 
 traces laid upon brick pillars, but not attached or fixed thereto, was a 
 mere chattel." 
 
 If a landlord supjilies timher to erect a luilding, and the tenant so uses 
 the timber together with some ivhich he has himself supplied, he cannot 
 remove the building on quitting the occupation of the land {Smith \. 
 Render.) The defendant had been tenant to the owner of the field, 
 and obtained permission from his landlord to cut down some timber 
 that was on the field, for the purpose of erecting a cattle-house. The 
 building consisted of six posts, driven four feet into the ground, and a 
 number of smaller posts driven to the depth of eighteen inches or two 
 feet ; and this erection was completed except the tiling, and was in a 
 condition to have the timber of the roof put on, and so stood in the 
 field. In this state of things the landlord sold the reversion to another 
 person, and the tenant not wishing to remain a tenant to the new owner 
 of the property, gave him a notice to quit, and before that notice had 
 expired pulled down the building he had erected, and carried away the 
 timber, and insisted that the materials belonged to him. It was con- 
 tended on his behalf before the Court of Exchequer that the building 
 did not become a fixture until it was completed, and that tlie tenant 
 had a right to remove any materials which had been inserted in the 
 foundation ; and it was insisted that he had passed no conclusive por- 
 tion of the building materials to the owner of the land, or to the 
 landlord, or annexed them to the land, till the thing was completed. 
 
 But per Curiam (which confirmed the ruling of Martin B.) : " We 
 think that if a person takes from his landlord timber for the purpose of 
 erecting a house, and does use that timber in it, although he may add 
 something to it, yet nevertheless, in point of fact, the true question 
 as between the tenant and the reversioner to the fixture does not 
 arise, whatever might be the case in the event of a man partially 
 erecting a building from materials entirely his own. In this case it is 
 obvious that the original owner of the land never meant this timber to 
 be applied otherwise than to this house ; and if he sold it and the house 
 to the successor, the defendant had no right whatever to pull down the 
 building and remove that timber." 
 
 The Court of Common Pleas decided in Leader v. Ilomewood, that 
 the right of a tenant to sever tenants' fixtures from the freehold, cannot
 
 4C0 TROVER BY TENANT FOR FIXTURES. 
 
 le exercised after the landlord has rc-enlcred, and all tenancy of any hind 
 has bcenjmt an end to ; aud it makes no difference that the tenant has 
 not eyineed un intention to abandon his right to such fixtures. And 
 2^er Curiam : " The law as to the limit of time within which a tenant is 
 allowed to sever from the freehold the fixtures which are usually called 
 ' tenant's fixtures,' is by no means clearly settled. According to the 
 older authorities, the rule was that he must sever them during the term. 
 But in Pcnton v. Rohart it appears to haye been considered that the 
 severance might be made even after the expiration of the tenant's in- 
 terest, if he has not quitted possession. However, in Weeton v. Wood- 
 code, the rule was laid down that the tenant's right continues only 
 during his original term, and such further period of possession by him, 
 as he holds the premises under a right still to consider himself a 
 tenant. It is perhaps not easy to understand fully the exact meaning 
 of this rule, and whether or not it justifies a tenant who has remained in 
 possession after the end of his term, and so become a tenant on suffer- 
 ance, in severing the fixtures during the time he continues in possession 
 as such tenant." 
 
 Fatteson J. held in Leach y. Tliomas, that an outgoing tenant has no 
 right to remove some small pillars of bricJc and mortar built on a dairy 
 floor to hold pans, although such pillars are not let into the ground. 
 " Thcyhad," his lordship said, " become, I think, part of the freehold, 
 and could not be legally removed, and it is not necessary for that 
 purpose that they should have been let into the ground." 
 
 In Keal v. Vincy, by a written agreement between the plaintiffs and 
 the defendant, the defendant was to accept of the assignment of the 
 lease of a farm from the plaintiffs, and to take the fixtures in the farm- 
 house and growing crops at a valuation. He was afterwards let into 
 possession of the fixtures, and the crops which were valued to him, but 
 the lease was never assigned. Lord Mlenborough C.J. held that indebi- 
 tatus assumpsit would not lie for the price of the fixtures and crops, and 
 that the plaintiff's only remedy was by a special action on the agreement. 
 His lordship considered the agreement an entire one, and that fixtures 
 are not chattels until severance from the realty. Boydell v. 31'Michael 
 decided that a tenant has during the term a sufficient interest in the 
 fixtures to enable him to maintain trover against a third party who 
 wrongfully removes them, although at tlie end of the term he may be 
 Ixnind to leave them for the use of the landlord. And according to 
 Jlilchman v. Walton, the mortgagee of the tenant may declare in case 
 a.s reversioner against the assignee of the tenant, for the removal of 
 fixtni-es from the premises, whereby they were dilapidated and injured ; 
 and he is also entitled, during the term, to recover in trover against
 
 REMOVING BUILDINGS DURING STAY OF EXECUTION. 461 
 
 such assignee the vahic of all the fixtures, whether landlord's or tenant's 
 which were affixed to the premises before the execution of the mortgaoe 
 although there was a covenant in the original lease to the mortgao-or, 
 to yield up to the lessor, at the termination of the term, " all fixtures 
 and things to the premises, helonging to or to heJong.'" 
 
 But it was decided in MacTcintosh v. Trotter, on the authority of 
 Minslmtl v. Lloijd, that a lessee even during his term cannot maintain 
 trover for fixtures attached to ths freehold, and not yet removed lij the 
 jmrchascr. And j'^er Parke B. : " The principle of law, as settled in 
 Minshall v. Lloyd is that whatsoever is planted in the soil belongs to 
 the soil — quicquid plantatiir solo, solo cedit — that the tenant has the 
 right to remove fixtures of this nature during his term, or during what 
 may, for this purpose, be coasidered as an excrescence of the term ; but 
 Ihey are not goods and chattels at all, but parcel of the freehold, and as 
 such not recoverable in trover." And even during the continuance of 
 the term a landlord may bring trover for machinery annexed to the 
 mill, and which was unlawfully severed from it {Farrant v. Thomjjson). 
 Trover also lies hy the tenant for fixtures ivhich the landlord has severed 
 from the freehold and distrained for rent {Dalton v. Whittem). And per 
 Parke B. : " By a conveyance, whether to a purchaser or to a mortgagee, 
 fixtures annexed to a freehold will pass, unless there be some words in 
 the deed to exclude them. Colegrave v. Dios Santos is an authority to 
 that effect in the case of a purchaser, and Longstaff v. Meacjoe in the 
 case of a mortgagee" {Hitchmcm v. Walton). 
 
 The purchaser of lands, chc, having brought cm ejectment against the 
 tenant from year to year, the par ties enter iny into an agreement that judg- 
 ment shall he signed for the plaintiff, ivith a stay of execution till a given 
 period, the tenant cannot in the interval remove luildings, &c., from the 
 premises ivhich he himself had erected during his term, and before the 
 action was brought {Fitzherbcrt v. Shau-). This case was considered to 
 be completely in point in Heap v. Barton, where Penton v. Robart was 
 remarked on by Jcrvis C.J., who said, " There is a view of this case 
 which gets rid of the discrepancy between Penton v. Eobart and some of 
 the other cases. The tenants here disclaimed ; they became trespassers. 
 The Courts," added his lordship, " seem to have taken three separate 
 views of the rule— first, that fixtures go at the expiration of the term to 
 the landlord, unless the tenant has during the term exercised his ricrht 
 to remove them ; secondly, as in Penton v. Robart, that the tenant may 
 remove the fixtures notwithstanding the term has expired, if he remains 
 in possession of the premises ; and thirdly, that his right to remove 
 fixtures after his term has expired, is subject to this further qualifica- 
 tion, viz., that the tenant continues to hold the premises under a rioht
 
 462 LAW OF FIXTURES. 
 
 still to consider himself as tenant." The Court gave no opinion as to 
 any of these positions, but remarked in reference to the statement in 
 Amos and Ferrard on Fixtures, p. 88 (and cited by Lord Tenterdm C.J. 
 in Lyde v. RnsseU) to the eflPcct that a tenant must use his privilege in 
 removing fixtures during the continuance of Ms term, for if he forbear to 
 do so within this period, the law presumes that he voluntarily relin- 
 quishes his claim in favour of his landlord : — " Is there any authority 
 for what is said there about the voluntary relinquishment ? May not 
 the rule be this — that the fixtures are the landlord's, subject to the 
 tenant's right to remove them during the term ? Suppose the land- 
 lord to be a tenant for life, could the tenant, on his death, remove the 
 fixtures ? " 
 
 "Where by an agreement dated August 21, the defendant agreed to 
 take certain premises at a certain rate, " to commence on the 29th of 
 September," the landlord to take the Jixtures at the end of the tenancy, 
 provided they are in the same condition then as they now are ; and the 
 defendant agreed " to leave the premises in the same state as they now 
 are ; " the Court of Common Pleas held that " now " might be taken as 
 referring to the commencement of the tenancy ; and that a breach 
 " that the defendant did not leave the premises in the same state as at 
 the commencement of the tenancy" was properly assigned {White v. 
 Nicholson). 
 
 The law of fixtures is noiv jnit on a regular footing % 14 & 15 Vict. 
 c. 25. By section 3 of that Act it is enacted, " That if any tenant of a 
 farm or lands shall, after the passing of this Act (24th of July, 1851), 
 icith the consent in nriting of the landlord for the time being, at his oivn 
 cost and exjiense, erect any farm buildings, either detached or otherwise, 
 or put up any other building, engine, or machinery, either for agricul- 
 tural purposes or for the purposes of trade and agriculture (which shall 
 not have been erected or put up in pursuance of some obligation in that 
 behalf), then all such buildings, engines, and machinery shctll be the 
 jn-opcrty of t}ie tenant, and shall be removable by him, notwithstanding 
 the same may consist of separate buildings, or that the same, or any 
 part thereof, may be built in or permanently fixed to the soil, so as the 
 tenant making any such removal do not in anywise injure the land or 
 buildings belonging to the landlord, or otherwise put the same in like 
 plight or condition, or as good as the same were in before the erection 
 of anything so removed : Provided, nevertheless, that no tenant shall, 
 under the provision last aforesaid, be entitled to remove any such 
 matter or tiling as aforesaid, without first giving to the landlord or his 
 agent one month's previous notice in writing of his intention so to do ; 
 and thereupon it shall be lawful for the landlord, or his agent on his
 
 MEANING OF PREMISES. 463 
 
 authorit}', to elect to purchase the matters and things so proposed to be 
 removed, or any of them, and the right to remove the same shall thereby 
 cease, and the same shall belong to tiie landlord, and the value thereof 
 shall be ascertained and determined by two referees, one to be chosen 
 by each party, or by an umpire to be named by such referees, and shall 
 be paid or allowed in account by the landlord wlio shall have so elected 
 to purchase the same. 
 
 Contract for quiet enjoijmmt. — Tt was held by the Court of Queen's. 
 Bench in Hall v. Cilij of London Brewery Company (limited) confirming 
 Bandy v. Cartwriyht (8 Ex. 913, 22 L. J. (N. S.) Ex. 285), that there 
 is a contract for quiet enjoyment implied in a demise of tenement, but 
 not for good title. A similar promise is not implied in an agreement to 
 give a lease containing such covenant, and further act must be done 
 before the promise arises {Brashier v. Jackson). 
 
 Implied ayreement for quiet enjoyment. — On a parol tenancy from year 
 to year, it was held by the Queen's Bench that there is no implied 
 agreement for quiet enjoyment beyond the duration of the lessor's 
 interest, and if he is himself a termor, and the tenant was aware of this, 
 the latter, in case of eviction on the expiration of his landlord's term, 
 can maintain no action against him for such eviction {Penfold v. 
 Abbott) . 
 
 Meaniny of "premises." — Where a testator by his will empowered his 
 trustees to permit the person entitled for life or any greater estate in 
 the S. property to occupy the mansion, gardens, and " premises " rent 
 free, and the home-farm had no farm-house, and the farm-buildings and 
 farms were occupied by the testator at the time of his death, it was held 
 by the Lords Justices that the "premises" meant premises in imme- 
 diate connection with the house, and did not include the . home-farm 
 {Leihbridye v. Lethbridye). 
 
 Tenancy at will. — When a tenant at will is warned to quit, and 
 afterwards has leave given him to remain on part of the property, this 
 permission commences a new tenancy fi-om the date of which the Statute 
 of Limitation runs {Loch v, Mattlieivs). 
 
 Demise of three years certain. — A demise by deed for the term of three 
 years, " determinable on a six months' previous notice to quit by either 
 lessor or lessee, otherwise to continue from year to year until the teim 
 shall cease by notice to quit at the usual times," is a demise for three 
 years certain, and the tenancy cannot be determined sooner than by a 
 six months' notice, ending with the third year {Jones v. Nixon). 
 
 Action upon ayreement for lease. — An agreement not under seal be- 
 tween two persons, by which one agrees to let, and the other to take, 
 certain premises for the term of seven years, and by which it is agreed
 
 1.64- EVIDENCE OF ORAL AGPvEEMEXT. 
 
 that a 2:00(1 and siiflicient lease of tlie premises shall be prepared, may 
 be good as an agreement ; so tliat an action may lie upon it for not 
 accepting the lease when prepared, although it would be void as a lease 
 in consequence of 8 & 9 VicL c. lOG, s. 3. And per Blackburn J., 
 the Act of Parliament does not say that the agreement, by which the 
 ]iarties agreed that a lease should be granted, should be void. I do not 
 know that there is anything illegal in such an agreement, so that it 
 should be void. The words of the statute merely mean that it shall 
 create no estate and pass no interest" (Bond v. Rosling). 
 
 Document void as a lease requires af/reement stamp. — Where a docu- 
 ment void as a lease is tendered in evidence to show the terms of a 
 collateral agreement, it requires a stamp as an agreement : per Bi/Ies J. 
 {Golden v. Taylor). 
 
 An entry at Old MicMelmas cannot be imjjlied. — In Hoyg v. Norris 
 and Berrington it became necessary to prove a notice to quit, and one 
 was put in served on both defendants on 5th of April to quit at 
 Michaelmas. To make this a sufficient six months' notice, evidence 
 was tendered of the custom of the country to quit at Old Michaelmas 
 Day (Oct. 11), and not at New Michaelmas (Sept. 29) ; but per Erie 
 C.J. : " That evidence is inadmissible ; the custom of the country cannot 
 be set up against the legal presumption, that Michaelmas means any 
 other day than September 29. It must be shown by dhect evidence 
 that this is an Old ]\Iichaelmas tenancy. 
 
 Effect of contract to repair. — There is no implied contract to use 
 premises in a tenant-like manner where tenant has expressly contracted 
 to repair (Standen v. Christmas). 
 
 Tenant in residence not bound to accept agreement for lease ivJien Jiouse 
 is found seriously defective. — A tenant under an agreement to take a 
 lease of a house is not bound to accept it (although he has entered into 
 residence) if the house ui)on a competent survey is found defective and 
 finished in such a manner, that it is likely to subject the tenant under 
 (he covenant to repair to an unusually large annual outlay to maintain 
 it : per RomilUj M.R. {Tildesley v. Glarkson). 
 
 Evidence of oral agreement that written agreement shall become void in 
 a certain event. — The declaration stated that the defendant agreed to 
 transfer a farm held by him under Lord Sydney to the plaintiff, on the 
 terms and conditions under which the same was held by Lord Sydney, 
 and to sell the stock at a certain price, and alleged a breach of that 
 agreement. The defendant pleaded non assumpsit, and a contemporane- 
 ous oral agreement, that in the event of Lord Sydney not consenting to 
 the transfer, the above agreement was to be null and void, and that 
 Lord Sydney had refused his consent. Tlie principal agreement was in
 
 ORAL AGREEMENT. 465 
 
 writing, and the plaintiff paid to the defendant £100, a part of the 
 consideration money, and sold with the defendant's consent a small 
 portion of the stock ; bat when Lord Sydney refused his consent, the 
 defendant tendered back the £100, which the plaintiff refused to accept. 
 It was held by the Court of Common Pleas that the evidence of the con- 
 temporaneous oral agreement was rightly received ; for that under the 
 circumstances the inference of fact was that the oral arrangement was 
 intended to suspend the written agreement, and not as a defeasance of 
 it ; and that it was not necessary for the plaintiff to produce or cause 
 to be produced at the trial the lease from Lord Sydney to the defendant, 
 referred to in the declaration. And per Curiam : " In Pym v. Cam2J'beU 
 (6 El. and Bl. 370, 25 L. J. (N. S.), Q. B. 277), and Davis v. Jones (17 
 C.B. 625 ; 25 L. J. (N. S.),C. P. 91), it was decided that an oral agree- 
 ment to the same effect as that relied upon by the defendant might be 
 admitted without infringing the rule that a contemporaneous oral agree- 
 ment is not admissible to vary or contradict a written agreement. It is 
 in analogy with the delivery of a deed as an escrow ; it neither varies 
 nor contradicts the writing, but suspends the commencement of the 
 obligation. The evidence shows that the defendant introduced the oral 
 agreement for his benefit, and has treated the written agreement as 
 suspended, having always retained possession of his farm. Also, the 
 subject matter of the two agreements is strong to show that the oral 
 suspended the written agreement from the beginning, and was not in 
 defeasance of it, for the written agreement was to assign, but the possi- 
 bility of assigning was supposed to depend on Lord Sydney's consent, 
 and the oral agreement that the written agreement should be void if he 
 did not consent, is in its nature a condition precedent. The defendant 
 in effect says, if I have the power to act, I will agree ; but if I have no 
 power to act, I will make no agreement at all (Wallis v, LiiteJl). 
 
 Valuation agreement. — S, being possessed of a leasehold farm, entered 
 into an agreement with T,, whereby after reciting that T. had lent 
 him a certain sum of money and agreed to make him further advances, 
 it was agreed that the said sum, and such sums as should be further 
 advanced, should be repaid on the day mentioned, but if S, should not 
 then repay the same, S. agreed to assign the farm to T. for the residue 
 of the term without any fiu'ther consideration, together with the furni- 
 ture and stock at a valuation, and T. agreed to pay the amount of such 
 valuation, deducting therefrom the money advanced. The valuation 
 was afterwards made, and the plaintiff entered into possession, but the 
 defendant refused to receive the balance of the money, alleging that the 
 agreement was for a mortgage and not for a sale, and T. filed a bill for 
 specific performances. The Master of the Kolls considered that the 
 
 H H
 
 IdG LIABILITY OF AGENT. 
 
 aiiTccment wns for a mortgng-o of the said farm, and made a foreclosure 
 decree, and directed an account accordingly ; but the Lord Chancellor 
 held, on appeal, that the relation of seller and purchaser was con- 
 stituted by the agreement, and that the plaintiff was entitled to specific 
 perforniaucc {Tapphij v. Shcaiher). 
 
 Costs abiding emit of reference.— \YhcYe an action for alleged breaches 
 of covenant in a farming lease, in which the plaintiff claimed £100 
 damages, was, after pleas but before issue joined, by a Judge's order 
 and by consent, referred to arbitration, " the costs of the reference to 
 abide the event," and the arbitrators found in favour of the defen- 
 dant on all the alleged breaches, with the exception of one, on which 
 they awarded IGs. damages to the plaintiff, it was held by the Court 
 of Exchequer that the event of the reference was in favour of the 
 defendant, and that the plaintiff was not entitled to his costs {Kelceij 
 V. Siiipptcs). 
 
 Liahilit// of agent for nonfulfllment of agreement.— The defendant, 
 hond fide believing he had authority, verbally agreed on behalf of the 
 owners to let the plaintiff a house for seven years ; and the plaintiff 
 was let into possession by the defendant, and began repairing the pre- 
 mises. The owners had not given the defendant authority, and they 
 informed the plaintiff of this, and brought ejectment against him ; the 
 plaintiff consulted the defendant, who persisted that he had authority, 
 and advised the plaintiff to defend the action, and a verdict passed 
 against him. The plaintiff having brought an action against the de- 
 fendant for his breach of warranty of authority, it was held that the 
 plaintiff' could not recover the costs of defending the ejectment, as 
 they were not the consequence of the defendant's breach of warranty, 
 inasmuch as if the defendant had had authority, the plaintiff could not 
 have succeeded in the ejectment by reason of the agreement being 
 verbal only, and consequently creating no more than a tenancy at will. 
 And per CocMurn C.J. : " The plaintiff's remedy, if any, was by 
 going to a Court of Equity, and compelling the landlords to execute 
 the necessary documents to complete his title, and if he had been de- 
 feated in that application in consequence of the defendant's authority 
 being negatived, the defendant might have been justly charged with 
 the costs, as the consequences naturally following from the breach of 
 warranty." And ^;er Cromjjton J. : " This action is brought on the 
 pi-inciple established by Cotlen v. Wright (7 E. & B. 301, and 2G L. J. 
 (N. S.), Q. B. U7, and in Error 8 E. & B. 647, and 27 L. J. (N. S.), 
 (I B. 2 IT)), in this Court and in the Exchequer Chamber, that an agent 
 -^vho holds himself out as authorised to contract for another, warrants 
 his authority and is liable for the damages flowing from the breach of
 
 RATIFICATION OF AGENTS ACT BY EMPLOYER. 467 
 
 snch warranty, and the qnestion is whether my Brother Blacklmrn 
 was right in holding that the damages in the shape of the costs of the 
 ejectment, did not naturally flow from the l)reach of the defendant's 
 warranty. I think that he was right ; the ejectment would have been 
 wrongly defended whether the defendant had authority or not." And 
 semble per Blacklurn J. : " The mere fact of the tenant having laid 
 out money on the premises, with the sanction of the landlord, does 
 not create at law any tenancy other than a tenancy at will " {Poiv v. 
 Davis). 
 
 Agent cannot let on unusual terms witJwut cognisance of otvner. — A 
 farm bailiff or agent who used to let farms upon the ordinary terms, 
 and received the rents, &c., was held by BlacMvrn J., to have no 
 authority in law to let upon unusual terms unknown to the owner ; 
 and the question was left to the jury as one of ftict, whether he had 
 express authority or had been held out by the defendant as having had 
 it {Turner v. Hutchinson). 
 
 Ratification of agent's bargain hy cmiAoyer. — An agent to receive 
 rents and manage property, having without actual authority agreed 
 that his employer should take the stock, &c., of an outgoing tenant at 
 a valuation, and the valuation included eatage of fields, in which the 
 employer's cattle were afterwards placed by his servants, and ivith his 
 Tcnotvledge, such conduct of the employer was held by Bgles J., to be 
 a ratification of the whole valuation {Roclmel v. Eden, Bart.) 
 
 Wrong information to tenant hj receiver as to length of term. — The 
 receiver of an estate in which the plaintiff had an equitable interest 
 under a settlement, vesting it in trustees, let defendant into possession 
 under an agreement with himself in writing in which he described him- 
 self as agreeing on behalf of the estate to let for a term of years, 
 whereas the plaintiff' would only sanction a yearly letting. A corres- 
 pondence ensued bet^veen him and the defendant, in which the latter 
 intimated that as he could not get a lease, he should leave as soon as 
 he could, and he did leave before he had been six months in possession. 
 He was held not liable to the plaintiff" in trespass or use and occupa- 
 tion, and semhle not at all {Sloper v. Saunders). 
 
 Rejyreseniation hy agent that he laid autlioriiy to contract. — In an 
 action against an agent on the implied "warranty, that he had authority 
 to contract with the plaintiff, the plaintiff is entitled to recover, as 
 special damage, the costs of an unsuccessful action against the alleged 
 principal on the contract {Randell\. Trimen, 25 L. J. (N. S.), C. P. 307 j, 
 or of an unsuccessful suit for specific performance, (6(9 Z/e;^ v. Wright), 
 and the liability to pay such costs is, if properly charged in the declara- 
 tion, sufficient to sustain the claim for special damage {Randall v. 
 
 II II 2
 
 46S EIGHTS OF ASSIGNEE OF MORTGAGOR. 
 
 Eaper, 27 L. J. (N. S.), Q. ?.. 200). Tn namh'Jl v. yy/^^f/?, the defend- 
 aut was clearly liable for his misivpi-pseutation as to his being autho- 
 rised to order stone in the name of the clergyman who was the head 
 of the TTerneth Church Committee, even though he were honestly 
 mistaken. In Smoitf v. Ihunj (10 M. & W. 1), there was no repre- 
 sentation at all and no assumption of authority by the defendant, and 
 the iilaintift was misled by a circumstance equally without the know- 
 ledge and beyond the control of both parties. The plaintiff, like the 
 defendant, did not know that the defendant's husband was dead in 
 foreign parts, and the defendant was therefore not liable for goods 
 supplied to her after his death, but before information of his death 
 had been received. 
 
 Guarantee of solvoicy of tenant ly house-agent. — Where a house-agent 
 is employed to let a house, and charges 5 per cent, commission on 
 letting it, it is a question for the jury whether he undertakes to use 
 reasonable care to ascertain that the person to whom he lets it is in 
 solvent circumstances {Heys v. Tindatl). 
 
 Assignee of morigagor letting tenant into possession. — The assignee 
 of a mortgagor, who has let a tenant into possession after the mort- 
 gage, can sue such tenant for use and occupation, notwithstanding 
 notice from the mortgagee to pay rent. A mortgagor in possession 
 agreed to grant a lease to the defendant with the privity of the mort- 
 gagees, who, however, were no party to the agreement ; the defendant 
 was let into possession under the agreement, and paid rent to the 
 mortgagor. The mortgagor then assigned to the plaintiflF, who sued 
 the defendant, after notice to him from the mortgagees to pay them the 
 rent, for use and occupation, and it was held that the action was main- 
 tainable ; and^^cr Martin B. : " The doctrine that a tenant shall not be 
 allowed to deny the title of his landlord is sound, and ought to be sup- 
 ])orted. It compels persons to perform their contracts until something 
 has taken place, which in justice ought to put an end to them. The 
 dictum in Goivldsworth v. Knight (11 M. & W. 337), supposed to be 
 contrary to that doctrine, was merely the expression of an opinion and 
 not duly considered." And ^;er Bramwell B. : " The sole question is 
 whether the mere notice was sufficient to terminate the estoppel arising 
 by tenancy ? We think it was not. That the assignee of a reversion 
 on a parol tenancy can sue for the rent has been held in Standen v. 
 Christmas (10 Q. B. 135, 16 L. J. Q. B. 205)," {Hickman v. Machin). 
 
 Fixtures. — M. being owner of certain land and premises, mortgaged 
 them in fee, but still continued in possession of the mortgaged premises 
 on which, subsequently to such mortgage, he put up and used for the 
 purposes of his trade a steam engine and boiler, also a hay-cutter and
 
 landlord's claim under fi. fa. 469 
 
 corn-crusher, and grinding-stones. All these articles except the grinding- 
 stones were screwed, or otherwise firmly fixed to the several buildings 
 to which they were attached, but still in such a manner as to be remov- 
 able without damage to buildings or themselves, and the upper millstone 
 lay in tlie usual way on the lower. The steam-engine and boiler were 
 used for supplying with water certain baths on the premises ; the hay- 
 cutter was attached to a building adjoining the stable to improve its 
 usefulness as a stable, and the malt-mill and grinding-mill were to add 
 to value of premises. In an action by the assignees in bankruptcy of 
 M. it was held by the Court of Common Pleas, Willes J. dub., that the 
 articles were fixtures, and that although they were trade fixtures as well 
 as annexed to the freehold after the mortgage, they enured to the benefit 
 of the mortgagee, and did not pass to the assignees of the mortgagor 
 {Walmslcy v. Milne). 
 
 Annexation of chattel to another's freehold. — The mere annexation of a 
 chattel by its owner to the freehold of another, does not necessarily 
 make it the property of the freeholder ; but in each case it may be a 
 question whether the owner of the chattel has lost his property in it 
 ( Wood V. Hewitt, which governed Lancaster v. Eve). 
 
 Landlord's claim for rent under a fi. fa. — The sheriff on a levy under 
 a fi. fa. is liable to the landlord's claim for rent under 8 Anne, c. 14, 
 while the goods remain in his hands, even after sale, and the claim may 
 be made by a mortgagee to whom the mortgagor has attorned as tenant 
 for rent payable in advance although no interest has become due. And 
 per Ghanncl B. : " As long as the goods are in the sheriff's hands, the 
 landlord's claim attaches ; and even if he has sold and received the 
 money, the claim attaches to the proceeds in his hands " (Yates v. 
 Routledge). 
 
 Presumfptive proof that payments ivere made as rent-charge for common 
 land. — In an action by overseers, for use and occupation, and for rent 
 of parish lands, evidence that the defendant and his a,ncestors had for 
 upwards of a century, up to the last ten years, paid rent for the land as 
 "common lands" (he refusing to produce the deeds under which he 
 professed to hold), is evidence sufficient to go to the jury, in the absence 
 of any evidence that the payments were made by way of chief rent or 
 rent-charge {Harding v. Hesketh). 
 
 Right of presumptive heir to rents up to hirth of posthumous son. — The 
 right of a presumptive heir to the rents which accrue due between the 
 death of an ancestor and the birth of a posthumous heir, extends to all 
 rents which have accrued due in the interval, and whether actually 
 received or not, and whether in respect of fee simple or entailed estates 
 {Richards v. Richards).
 
 470 LIABILITY FOR DOUBLE VALUE. 
 
 Tcnanis in ancient demesne liable to pay county rates. — Tenants of 
 land in ancient demesne are not by reason of their tenure exempted from 
 liability to pay county rates {Reg. v. Inhahihints of Aylesford). 
 
 Ecceipt of rent from third party evidence of surrender hy operation of 
 taw. — It was held by Blaclchuni J., in Laivrance \. Faux, that receipts 
 for rent received by a landlord from a third party were held evidence of 
 a surrender by operation of law, putting an end to the liability of the 
 former tenant. 
 
 The holding over to entitle to double value must be contumacious. — B., a 
 tenant to S., after the death of S. accepted a fresh term from his devisee. 
 Ke afterwards found that the heir-at-law of S. disputed the will, and 
 from the circumstances of the case, he reasonably and bond fide believed 
 that the devisee had no title, and that the land belonged to the heu'-at- 
 law. B. thereupon refused to pay rent to the devisee, who gave him 
 notice to quit. As B. did not quit at the expiration of his term, the 
 devisee, who had made out her title to be good, brought an action 
 against B., under statute 4 Geo. II. c. 28, s. 1, for double value. It was 
 held by the Court of I^xchequer that to enable a landlord to recover 
 double value under 4 Geo. II. c. 21, the holding over must be contuma- 
 cious. A holding over under a mistaken belief that a third person who 
 claimed the reversion is entitled, is not sufficient to support the action, 
 even although the tenant was let into possession by the landlord, and 
 the third person does not claim through, but adversely to him. This 
 was decided on the judicial construction given to the statute in Wright 
 V. Smith (6 Esp. 203), and Suulsbg v. J\^ei'ing (9 East. 310). This de- 
 cision was affirmed in the Exchequer Chamber, which considered that 
 the action was not maintainable, and that to come within the statute 
 the holding over must be with the consciousness on the part of the 
 tenant that he has no right to retain possession {Sivinfen v. Bacon). 
 
 Ejectment by mortgagor. — A mortgagor before mortgage let a farm to 
 P. as tenant from year to year. After the mortgage, P. let the defend- 
 ant into possession in his stead, and informed the mortgagor of the 
 fact, and the mortgagor subsequently received rent from the hands of 
 the defendant. It was held that the tenant's term was still in P., there 
 being no effectual surrender, and consequently that the mortgagee 
 could not maintain ejectment against the defendant without a notice to 
 quit. And per Martin B. : " There can be no assignment of a term 
 except by deed, and there cannot be a surrender by operation of law 
 without the assent of all parties " {Trent v. Hunt). 
 
 Action by one tenant in common against another. — Where one tenant 
 in common brings an action against his co-teuant, and the declaration 
 takes no notice of the plaintiff's limited interest, but alleges an e.xpul-
 
 ENFORCING SPECIFIC PERFORMANCE OF AGREEMENT. 471 
 
 sion or total destruction, the defendant may pay money into court in 
 respect of the damage to the plaintiff's share ; and as to the residue, 
 plead liherum tenementuni, or traverse the plaintift"s property (Gresswell 
 V. Hedges). 
 
 Taking farm and iKiging tenant-right to false devisee. — A defendant 
 who had taken a farm without any agreement, but by arrangement 
 for a yearly tenancy, he paying the usual tenant-right, which included 
 a valuation for dung for which £Q2 was paid to the person in posses- 
 sion and claiming as devisee under a will, was held by Williams J. 
 liable in trover when the will was set aside to the plaintiff, who took 
 out letters of administration, as the personalty vested in him by relation 
 (Learson v. Eoiinson). 
 
 Enforcing sjMci/ic 2)e7farmance of farming agreement. — An agreement 
 for a farming lease was entered into in October, 1855, for twelve years. 
 In February, 1859, the landlord gave notice to quit, on the ground of 
 the lands not being farmed according to the agreement. In November, 
 1859, the tenant paid the balance of rent up to the previous Michael- 
 mas, the receipt expressing that it was without prejudice to any ques- 
 tion. In December, 1859, an action of ejectment was commenced, and 
 thereupon the tenant filed a bill for specific performance of the agree- 
 ment, and to restrain the action ; the evidence as to the tenant's 
 farming was conflicting. A decree was made by one of the Vice- 
 Chancellors for specific performance of the agreement ; the lease to bo 
 dated in October, 1855, and the tenant to admit in any action for 
 breach of covenant that the lease was executed at that date, and an in- 
 junction to restrain the action was granted, and on appeal this decree 
 was confirmed. And per Lord Chancellor Camjjbell, affirming Stuart 
 V.-C.'s decree : " The cases of Gregorg v. Wilson (9 Hare, 683, & 22 
 L. J. (N. S.) Ch. 159) and Lewis y. Bo?id (18 Beav. 85) are well decided ; 
 and I mean entirely to be bound by the doctrines there laid down. If 
 there has been a breach of the agreement, and if there has been what 
 would have amounted to a breach of the covenants which ought to have 
 been introduced into the lease had the lease been granted, which 
 would have worked a forfeiture, and that is clearly made out, then 
 there is an answer to the bill, and specific performance should not be 
 decreed. But if that is not made out, then I think the proper course 
 to be adopted is that which was adopted in the two cases that have 
 been referred to, of Pain v. Coombs (1 De Gex & Jo. 34) and Lillic v. 
 Legh (3 De Gex & Jo. 204), which is to decree specific performances, 
 and to direct that the lease should bear date at the date of the 
 agreement, giving the landlord the opportunity, if he thinks lit, of 
 bringing an ejectment for the forfeiture, and so to recover possession
 
 47.^ LEASE BY RECTOR. 
 
 of the premises." His lordship added : " There is considerable differ- 
 ence of opinion as to the four-course system and what constitutes a 
 breach of it, particularly with regard to fallow ; what would be a breach 
 of the covenant that they should lay fallow one year ; whether a 
 green crop is allowed, and what green crop is allowed " {Ranhin v. 
 Lay). 
 
 The Stat. 5 Viet. sess. 2, c. 27, for better enabling incumbents of 
 ecclesiastical benefices to demise the lands belonging to their benefices 
 upon farming leases, docs not abridge any right of leasing formerly 
 enjoyed by the incumbent, and so it was held in full Court of Appeal 
 {Green v. Jenkins). 
 
 Letting ly inamhent. — An agreement to let a farm less a stated 
 number of acres will be supported in equity, though the lands to be 
 excepted were not specified. A rector agreed to let a farm, except 37 
 acres, with liberty to plant not more than 10 acres of ground. The 
 tenant took possession; but before the lease was executed, disputes 
 arose respecting the lands to be taken by the rector ; and on a bill 
 filed against the tenant for a specific performance of the agreement, it 
 was held by Sir J. RomiUy M.R. that the rector had a right to select 
 the lands to be reserved, as the lease had not been executed ; but that 
 had it been executed, the rector could not have taken any lands with- 
 out the concurrence of the tenant. It was held also that the right of 
 selection must be exercised so as not to prevent the useful occupa- 
 tion of the rest of the farm ; and with these declarations, a decree 
 was made for a specific performance of the agreement {Jenkins v. 
 Green). 
 
 If a farmer contracts with a rector for a lease of glebe lands the 
 Court will not assume that both parties had an enabling statute 
 present in their minds, and modify the express terms of the agreement 
 to make it conform to the provisions of the statute. Where an agree- 
 ment had been made by a rector to grant a lease of glebe lands at a 
 rent to be paid half-yearly, the Court will not vary the agreement in 
 accordance with the provisions of 5 Vict. sess. 2, c. 27, and direct the 
 rent to be paid quarterly. A decree was made for the specific per- 
 formance of a lease of glebe lands. The decree was duly enrolled ; it 
 was however, subsequently found that the agreement and the statute 
 enabling incumbents to grant leases of their glebe land did not con- 
 form. It was held by Sir J. Romilli/ M.R., notwithstanding the pre- 
 vious proceedings, that the bill must be di>-missed, but without costs 
 {ih. Ch, 280). And glebe lands which have been usually let on lease 
 by incumbents are not within the 5 Vid. sess. 2, c. 27 (ih. Ch. 822). If 
 an incumbent contract to let lands belonging to the benefice for a term
 
 LESSEE BOUND TO DELIVER UP LEASE. 473 
 
 of years, his resignation of the living during the term is a breach of his 
 contract {Price v. Williams). 
 
 " Lessee of a farm bound to deliver lease to tenant who took it off 
 their hands." On a contract by a letter of the defendant, assented to 
 by the plaintiffs, to take a farm off their hands provided he was ac- 
 cepted by their landlord on the covenants to the lease, it was held by 
 Blackhurn J. that they were bound to procure and deliver to him the 
 lease ; and it having been deposited as security for a loan, and they 
 not having procured it, the plaintifts were non-suited {Burton & An- 
 other v. Bcmlcs.)
 
 47 i 00^'TKACTS AND SALES. 
 
 CHAPTER XIV. 
 
 CONTRACTS AND SALES. 
 
 If imrties enter into an agreement, they are not the less hound Inj it 
 became they send it to a soticitor to reduce it into form ; but the presump- 
 tion is, if they send it without having previously arranged to that 
 etfect, that they do not mean to bind themselves until it is reduced into 
 form {Ridgicay v. Wharton). AVhen an offer in ivriting is made by the 
 owner to sell an estate on specified terms, and this is unconditionally 
 accepted, there is a binding contract which neither party can vary ; but 
 the owner is entitled, at any time before his offer has been definitely 
 accepted, to add any new terms to his proposal, and if those are refused 
 the treaty is at an end. And so it was decided by the House of Lords, 
 in Honeyman v. Marryat, confirming the decision of the Master of the 
 Rolls. Thus where a person proposing to sell an estate receives an 
 offer, and his estate-agent answers, " He has authorized us to accept 
 the offer, subject to the terms of a contract being arranged between his 
 solicitor and yourself," the answer does not constitute a complete con- 
 tract ; and the vendor is at liberty to add other terms, and on their 
 non-acceptance to break off" the treaty (ib.). 
 
 A vendor has duties inseparable from that character which he is bound 
 to perform, and cannot avoid by restrictive conditions of sale ; and hence 
 he is not justified in rescinding a contract under a restrictive condition of 
 sale reserving that power, when he has not answered the purchaser's 
 requisitions, or made an attempt to answer tlie objections to the title. 
 rer Sir J. Romitly M.R. {Greaves v. Witson). 
 
 Where there is a contract with respect to a particular thing, and that 
 thing cannot be delivered owing to it perishing without any deftiult in 
 the seller, the delivery is excused. In the case of Howell and Coupland, 
 9 L. R. Q. B. 4G2, the defendant in the month of March entered into an 
 a"-reement to deliver to the plaintiff in September or October 200 tons 
 of Regent potatoes. The defendant planted in fact sixty-eight acres of 
 land witli potatoes, and this in an average year would have been amply 
 Bullicient to produce 200 tons of potatoes ; but a blight attacked the 
 crop, and the defendant was only able to deliver eighty tons. The
 
 RECEIPT OF PURCHASE-MONEY BY VENDOR. 475 
 
 plaintiff thereupon bronght an action for the non-delivery of the 120 
 tons, but the Court held that he was not entitled to recover because 
 performance of the contract became impossible from the perishing of 
 the thing without default in the contractor. See Taylor v. Caldwell, 
 32 L. J. Q. B. 1G6. 
 
 It was decided in Vimy v. Chaplm by the Lord Chancellor and Lord 
 Justices, confirming the opinion of Kindersley V.-C, that there is no 
 (jeneral ride that, in every case of a imrchase, the ]^urchaser can insist 
 uipon the vendor personally receiving the purchase-money ; but the vendor 
 is not entitled to refuse upon the reasonable request of the purchaser, 
 where the special circumstances would suggest such a step ; and in 
 every case where the vendor does not attend personally to receive the 
 money, the purchaser can require the written authority of the vendor 
 for the receipt of the money by an agent. The vendor's solicitor is not 
 entitled to receive the jmrchase-money l)y virtue of Jus office, and neither he 
 nor any other person merely because he has possession of the deed of 
 conveyance with receipt endorsed, executed by the vendor (ih.). Where 
 a purchaser requires the vendor to execute the conveyance in the pre- 
 sence of the purchaser or his solicitor, the onus of justifying the refusal 
 is on the vendor {ih.). 
 
 The purchaser can?iot recover eo'penses incurred previously to entering 
 into the cotitract; nor the expense of a survey of the estate made before 
 he knows the title ; nor the expense of a conveyance drawn in anticipa- 
 tion ; nor the extra costs of a suit for specific performance brought by 
 the vendor ; nor losses on the resale of stock prepared for the farm 
 {Hodges v. Litchfield) ; and where a lessee ivith power to alter and improve 
 had an option to purchase, and after laying out money in improvements 
 elected to purchase, and the title proved bad, he was held entitled only 
 to damages for the breach of contract, but not for the expense of im- 
 provements ( Worthington v. Warrington). 
 
 Where mi agent employed for an agreed commission to sell land at a 
 given price succeeds in finding a purchaser at such stipulated price, but tlie 
 principal, from whatever cause, declines to sell, and rescinds the agent's 
 authority, the latter is entitled to sue for a reasonable remuneration for 
 his work and labour, and is not bound to resort to a special action for 
 the wrongful withdrawal of the authority {Priclett v. Badger). In such 
 a case, a contract to pay what is reasonable is implied by the law ; and 
 it is not a question for the jury. And scmhle per Willcs J,, that under 
 such circumstances the proper measure of damages would be the entire 
 amount of the commission agreed for {ib.). 
 
 A contract for tim purchase of land by a company under 8 & 9 Vict. 
 c. 18, is complete when notice to take the land has been served, and the
 
 476 CONTEACT VOID THROUGH FRAUD. 
 
 value lias been fixed by an arbitrator appointed by the owner and the 
 company ; and such a contract will be enforced in equity, notwithstand- 
 ing tlic special provisions contained in the act relating to compulsory 
 purchases {Iliycnfs Canal Company v. Ware). And if an owner of land 
 compelled lo sell delays the completion of the purchase, interest will stop 
 upon an appropriation of the purchase-money, with notice that it is un- 
 employed (ib.). It is not the course of the Court, when it entertains 
 jurisdiction in specific performance, to permit an action at law to pro- 
 ceed for the same subject-matter (The Dulce of Beaufort v. Glynn). 
 And jjer Lord St. Leonards, it is no objection to the specific per- 
 formance of an agreement that collateral circumstances necessarily 
 arising out of the agreement are not mentioned in it {Ridyway v. 
 Wharton). 
 
 A contract may he avoided by a false and fraudulent representation, 
 though not relating directly to the nature or character of its subject- 
 matter, if it is so closely connected with the contract, as that the party 
 sued upon it would not, but for the representation, have entered into 
 it, and was induced to enter into it to the knowledge of the other party 
 by such representation. And hence in an action for not giving up pos- 
 session of a farm, under an agreement to assign it to the plaintiff, a 
 plea that the plaintiff held it on lease containing a covenant not to part 
 with, assign, or underlet without the landlord's consent (the covenant 
 being accompanied with a proviso for re-entry in case of breach), and 
 that the plaintiff falsely and fraudulently represented to the defendant 
 that the plaintiff had provided a respectable tenant, whom the landlord 
 would accept, and thereby induced the defendant to enter into the 
 agreement— was held on demurrer by the Court of Common Pleas to be 
 good {Canham v. Barry). 
 
 Kindersley Y.-C. held that ichere coal mines are vorked under an 
 agreement which provides that when the workings shall have finally 
 ceased, the pits shall be filled in, and the ground restored to cultiva- 
 tion, the cessation of the works and the filling up of the pits, and the 
 restoration of the land, does not prevent a re-working of the mines 
 under the agreement (Eamsden v. Hirst). An objection to the title on 
 the ground of such right to re-work is valid, and a purchaser is entitled 
 to compensation, to be estimated by taking all the circumstances into 
 consideration (ib.). 
 
 An owner in fee sold and conveyed two closes, A and B, by instruments 
 executed on the same day to different purchasers. A was separated from 
 the highway by B, over which, previous to the sale, the tenant of A 
 used a way, which was the shortest from A to the highway. Another 
 more circuitous way existed, which had been, long before the sale,
 
 AUCTIONEER AGENT FOR BUYER AND SELLER. 477 
 
 specially granted to the occupiers of two closes lying beyond A, and 
 except by one of these ways the occupier of A could not reach the high- 
 way. The Court of Exchequer held that if the conveyance of A was 
 executed first, there was a way (the shortest) by implied grant ; and if 
 last, by implied reservation {Pinnington v. Galland). 
 
 Where, as in lleivs v. Cair, the plaintiff put up for sale by public 
 auction a quantity of timber, several lots of which were unsold, and a 
 few days afterwards the defendant called upon the auctioneer, and 
 selected from the catalogue two of the unsold lots, which he agreed to 
 purchase, and the latter then wrote, in the defendant's presence, his 
 name in the catalogue opposite these lots, it was held by the Court of 
 Exchequer that tfie auctioneer was not the agent of the defendant so as to 
 Vmd him by signing his name, and that there was no sufficient note or 
 memorandum of the bargain to satisfy the 17th section. Bramwell B. 
 said : "■ The observations of the Court, in Graham v. Musson, must 
 not be misunderstood. There the Court said that if the traveller 
 had signed the defendant's name, and had not expressed any dissent, 
 that would have been a recognition of agency. Here the auctioneer 
 signed the defendant's name, not purporting to act for him, but as 
 the person who sold the goods. It is now established that an 
 auctioneer at the time of the sale is agent for loth huyer and seller ; lut 
 as soon as the sale is over, the reason for the rule fails, and he is certainly 
 not the agent of the buyer, unless he has some authority to act on his 
 part." 
 
 The mere entry by an auctioneer's clerk of the price at which a lot is 
 knocked do^^Ti is not sufficient to satisfy the 19th section of the Statute 
 of Frauds. Pierce v. Corf, 9 L. E. Q. B. 210. 
 
 In Ockenden v. Henly, one of the conditions of a sale by auction was, 
 ^' If the purchaser shall fail to comply with the conditions, the deposit shall 
 le actually forfeited to the vendor, who shall be at liberty to re-sell, and 
 any deficiency upon re-sale, together with the expenses, shall be made 
 good by the defaulter, and on non-payment shall be recoverable as 
 liquidated damages, but any increase of price at the second sale shall 
 belong to the vendor." Default having been made by a purchaser at 
 the auction, and the property re-sold at a reduced price, it was held, by 
 the Court of Queen's Bench, that the vendor could recover from the 
 defaulter, in addition to the deposit, only so much of the difference 
 between the two prices, and of the expenses of re-sale, as the deposit 
 did not cover. 
 
 And j;er Lord Camphell C.J. : " We think the difference between the 
 balance of the purchase-money on the first sale, and the amount of the 
 purchase-money obtained on the second sale, or in other words the
 
 478 LARGEST PURCHASER ENTITLED TO TITLE-DEEDS. 
 
 deposit, aUliong-h forfeited so far as to prevent the purchaser from ever 
 recovering it back, as without a forfeiture he might have done {Palmer 
 V. Temple), still is to be brouglit by the seller into account, if he seeks 
 to recover as for a deficiency on the re-sale." His lordship added that 
 he had consulted Lord St. Leonards on the point, and that he quite 
 coincided with the Court on the point. 
 
 As between vendor and purchaser, a Me dependent on a question of 
 fact, tvhich it is impossible to consider as reasonally certain, is not a good 
 or sufficient title ; and therefore it was held by the Court of Common 
 Pleas, that an intended purchaser, who by the conditions of sale is to 
 have a good title made out, may, upon such an insufficient title being 
 offered to him, recover laclc his deposit money and expenses, in an action 
 against the intended vendor {Simmons v. Heseliine). 
 
 It was held by the Privy Council in Dimech v. Corlett that one party 
 to a contract cannot, icitlwut the privity or consent of tlw other party, sub- 
 stitute a third person in his place, on simply guaranteeiny the solvency of 
 such third j^erson ; and the only exceptions are in the cases of negotiable 
 and transferable instruments. And where a contract concludes with a 
 penalty, the intention of the parties is the sole guide as to its effect, 
 and this intention is determined not merely by the term "penalty" 
 or " liquidated damages," but the Court will look at the whole docu- 
 ment {ib.). 
 
 Where certain proiocrty -was assigned to B., an auctioneer, upon trust 
 for sale, and to apply the moneys arising therefrom in payment of the 
 expenses of the deed of assignment, and of effecting such sale, " in- 
 cluding the usual auctioneer's commission," and upon further trust ; 
 it was held by the Lord Chief Justice that B. was entitled, in taking 
 the accounts between himself and the assignor, to be allowed the usual 
 charges for commission made by him as auctioneer {Douglass v. Arch- 
 butl). On a sale by auction of land in lots, the piurchaser of the lot laryest 
 in value, in tlie absence of any conditions respecting them, is entitled to the 
 custody of the tille-deeds relating to all the property ; but if there be a 
 condition that the purchaser of the " largest lot " shall have them, that 
 must mean largest in superficial area {Griffiths v. Hatchard). Where 
 f;everal lots (growing crops) are knocked down to a bidder at an 
 auction, and his name marked against them in the catalogue, a distinct 
 contract arises for each lot ; and a memorandum signed afterwards by 
 the bidder, stating that he agrees to become the purchaser of the 
 several lots set against his name, does not require a stamp, though 
 the aggregate exceed £20 in value, no single lot being of that price 
 {Roots V. Lord Dormer). 
 
 If land generally reputed to be water-meadow is sold by the assiynees
 
 SALE OF WATER-MEADOW. 479 
 
 of a hanlcrvpt hij IJie dcacriplion of uncommonly rich Avator-mcadow 
 whereas in fact it is very imperfectly watered, this is not sucli a mis- 
 representation as will avoid the sale {Scott v, Hanson). And where an 
 estate consisting of fen land, and so described in the jiarticulars of sale, 
 was charged by a local bnt public act of parliament with drainage and 
 embanking taxes, of which the purchaser had no express notice, it was 
 held that he was not entitled to compensation for those taxes {Earraiul 
 V. Archer). A point of this kind arose in Hanks v. Palling, where the 
 defendant purchased at a public auction a lot comprehending a freehold 
 messuage and a fee farm rent of 21s. Bg the concisions of the sale, no 
 evidence was to le required of the receipt or payment, or existence of the 
 fee farm rent other than that declared by a certain conveyance, " nor 
 should any objection be taken to the title in consequence of the non- 
 payment or non-receipt," thereof. It was discovered that, in fact, the 
 rent had not been paid or received for 20 years before the sale ; and the 
 purchaser therefore contended that it was extinguished under 3 & 4 
 Will. IV. c. 27, s. 34, and had ceased to exist at the time of the sale ; 
 but it was held by the Court of Queen's Bench that he was not entitled 
 to repudiate the contract on this ground, but must be considered to 
 have purchased under the conditions of the sale, the chance of the rent 
 being obtainable. The Court did not feel called upon to give an 
 opinion upon the point whether, after the expiration of the 20 years, 
 there was an absolute bar. The purchaser made an objection which 
 was excluded by the conditions of sale, and an agreement to purchase a 
 rent under the circumstances, taking the risk of it not having been paid, 
 was perfectly valid. 
 
 A sale ly seeded tenders is in effect the same as a sale by auction — 
 per Lord Cranworth Ch. {Barlow v. Oslorne). It was established, in 
 SMlton V. Livius, that tlie printed p)articiilaTs under which a sale ly 
 auction proceeds cannot le varied ly parol evidence of the verdal statement 
 of the auctioneer at the time of the sale, either as to the parcels or quality 
 of the subject-matter of the sale ; and it makes no diflTerence that the 
 question arises on a sub-sale of the same subject-matter by the pur- 
 chaser. Here the lot 6 in question was described as "ten acres of 
 spring wheat on farther hill " ; and at the bottom of the handbill was 
 this memorandum — " The keep of all the fields, until Old Michaelmas 
 Day, will be sold with the crops, except St. George's Field (lot 15)." 
 The plaintiff bought lot G for £7 15s. per acre, and the auctioneer 
 made an entry in his sale-book at the bottom of the description of lot G. 
 The description and minute then stood as folloAvs : "Lot 6. Ten acres 
 of spring wheat on further hill, Mr. Shelton, £7 15s." Shortly after- 
 wards, a little conversation ensued between the plaintiff and the defen-
 
 ISO PAROL EVIDENCE WHEN NOT RECEIVABLE. 
 
 dant, and the latter requested tlie auctioneer to ]uit liim down as the 
 purchaser of lot (3, and he accordingly inserted ("Mr. L.") after the 
 words "Mr. Shelton " in the minute. The wheat proved not to be 
 spring wheat, but red Lammas wheat, which, though sown in the 
 spring, is more liable to blight and mildew. The defendant had offered 
 to sell the crop to a third person, and had paid the plaintiff a £'d 5s. 
 deposit ; but as the crop became damaged with mildew, he refused to 
 complete the bargain. In an action for the price, parol evidence was 
 offered to prove that the auctioneer had explained, in defendant's 
 presence, at the time of the sale, that the wheat in question was not 
 spring wheat, and that the keep of the field with respect to this lot was 
 not to be sold. To this it was objected for the defendant, that as a 
 written instrument was signed by the auctioneer, the accredited agent 
 of both parties, at the time of the sale, with the purchaser's name, its 
 terms could not be varied by parol, and it could alone be looked at to 
 ascertain what was the contract between the parties. The Court of 
 Exchequer could not see anything in the distinction which was taken 
 between the case of Shelton as buyer and Livius as buyer, and confirmed 
 the nonsuit. 
 
 The general rule is that parol evidence is not receivalle wMch goes to 
 vary and liniit the ivritten contract hetween the parties. Thus where the 
 printed conditions of sale of timber growing in a close did not state 
 anything of the quantity, parol evidence that the auctioneer at the 
 time of sale warranted a certain quantity is not admissible as varying 
 the wi-itten contract (Powell v. Edmunds). The case of Gh-eaves v. 
 Ashlin is also decisive that parol evidence is not admissible ivith respect to 
 terms ivhich appear on the face of the contract. In Jeffrey v. Walton the 
 memorandum was clearly imperfect, and some evidence was necessarily 
 required to show the other parts of the agreement. 
 
 In Bmith v. Jeffryes, the Court of Exchequer considered that the 
 plaintiff, who sued in assumpsit for the non-delivery of sixty tons of 
 " Ware 'potatoes" at £5 per ton, according to a written agreement, had 
 no right to show that he had in fact contracted for the sale of a par- 
 ticular Jcind of Ware potatoes, viz., " Regent's Wares," while those 
 offered by the defendant were of an inferior kind, or " Kidney Wares." 
 There were three qualities of potatoes in that part of Kent where the 
 contract was made— Wares, Middlings, and Chats — of which the Wares 
 were the largest and best. The plaintiff had a verdict, but the Court 
 granted a new trial for improper reception of evidence. Again, on 
 a v:arranty of prime singed bacon, evidence was held not admissible 
 of a practice in the bacon trade to receive bacon to a certain degree 
 tainted as prime singed bacon {Yates v. Fym). And so parol evidence
 
 PAROL EVIDENCE ADMISSIBLE TO EXPLAIN TRADE TERMS. 481 
 
 is inadmissible to explain that on a contract to sell wool " to be paid for 
 by cash in one month, less 5 per cent, disconnt," the vendor has a lien on 
 it for payment by usage of the trade {Sparkdiy. BcnecliC,Godis v. Rose). 
 
 Parol evidence is, however, admissible to explain trade terms. And 
 pr Parlce B., in Hidchinson v. BoivTcer, where parol evidence was ad- 
 mitted for the pui'pose of showing that there were hvo descriptions of 
 harleij in the same mar/ret, ono "fine" (which was the heavier of the 
 two) and one " good." " The law I take to be this : that it is tlie duty 
 of the Court to construe all written instruments : if there are peculiar 
 expressions used in it which have in particular places or trades a known 
 meaning attached to them, it is for the jury to say what the meaning 
 of these expressions was, but for the Court to decide what the meaning 
 of the contract was. It was right, therefore, to leave it to the jury to 
 say whether there was a peculiar meaning attached to the word ' fine ' 
 in the corn-market ; and the jury having found wdiat it was, the 
 question whether there was a complete acceptance by the written 
 documents is a question for the judge." And an agreement to sell oats 
 at so much per lushel must be taken to mean the legal standard bushel, 
 and will not be supported by evidence to sell by some other bushel 
 {HocMn V. Cooke). 
 
 In Studdy v. Satmders parol evidence was admitted to show that 
 cider in Devonshire (which diminishes in quantity in the course of 
 manufacture at the average of six or eight gallons per hogshead) means 
 apple-juice as soon as it is squeezed from the apples, without undergoing 
 further preparation. And so again, in Spicer v. Cooper, to explain the 
 rvording of a hop-contract, where one of the items in the written con- 
 tract signed by the defendant, was to the eflPect that the defendant 
 had sold the plaintiff "18 pockets of Kent hops at lOOs." The de- 
 claration stated that he had sold the pockets at £5 per cwt., but failed 
 to deliver them according to promise, and Non assumpsit was pleaded. 
 It appeared that a pocket of hops contained more than one cwt., and 
 that the defendant had proposed to deliver the hops at lOO.s. for such 
 pocket ; but it was held that the plaintiff was justified in showing 
 by parol evidence, that by the usage of the hop trade a contract so 
 worded was understood to mean £5 per cwt. Plaintiff had a verdict, 
 and a rule for a nonsuit was refused. Lord Demnan C. J. said, " In 
 this case the contract was either simply 'at i 00s.,' in which case evi- 
 dence was admissible. to explain in what sense such words are used in 
 the trade, or it is a perfect contract at ' 100s. per pocket,' in which 
 case evidence is admissible as to the sense in which the trade understand 
 the word ' pocket ' so used. Therefore in either view of the case there 
 should be 'no rule.'"
 
 182 :VIEANING OF A THOUSAND EABBITS. 
 
 And where tlie defeudant., as in Sinilli v. WiIso?i, demised a rabbit 
 warren to the phiintitrs, and covenanted that they shonld leave 10,000 
 rabbits on the luarren at the expiration of the term, and receive payment 
 for those and any more than that nnmber at thc'ratc of £60 jfei- thou- 
 sand, the question arose as to whether by the Suffolk custom the word 
 "thousand" meant 1200 as applied to rabbits. Two indifferent per- 
 sons estimated the rabbits at 1600 dozen, and hence the defendant 
 paid. into Court a sufficient sum to pay for 16,000 rabbits, and con- 
 tended that thousand meant one hundred dozen, while the plaintiffs 
 contended that he ought to pay for 19,200. Under the direction of 
 Garroiv B. the jury found for the defendant, and the Court of King's 
 Bench refused a new triah Lord Tenferden C. J. said, "There is no 
 act of parliament which says 1000 rabbits shall denote ten hundred, 
 each hundred consisting of five score ; and that being so, we must 
 suppose the term tlmisand to have been used by the parties in the sense 
 in ^\■hich it is usually understood in the place where the contract was 
 made, when applied to the subject of rabbits ; and parol evidence was 
 admissible to show what that sense was." 
 
 Mere words of description in a deed of conveyance not operatincj by way 
 of estojypel, may be contradicted by parol ; thus the lessee of land de- 
 scribed as " meadow," may prove it to have been arable in an action 
 by the lessor for ploughing it up {Shrpwith v. Green) ; or he may^show 
 that land described as containing 500 acres does not in fact contain so 
 many {S. C. as reported Bac. Ab. Pleas I., 11) ; or contains many more 
 {Jaclc V. Mclntyre). Pasiura bosci may be explained, by usage and 
 later admittances, to mean the soil and wood itself {Doe v. Beviss). 
 
 A deed takes effect from the delivery, and not from the date ; therefore 
 parol evidence was allowed to show that a lease dated on Lady Day 
 1783, and purporting to commence on Lady Day last past, was in fact 
 executed after the date, and that the term therefore commenced on 
 Lady Day 1783, and not 1782 {Steele v. Mart). But where it was 
 agreed in wTiting that A., for certain considerations, should have the 
 produce of Boreham meadoiv, it was held that he could not prove that 
 it was at the same time agreed by parol that he should have both Mil- 
 croft and Boreham meadow {Meres v. Ansell). And see Hojje v. 
 Atkins. 
 
 According to Lorymer v. Smith, a refused to show in bulk justifies a 
 imrchaser in rescindiny a sale, even cfter boucjht ami sold notes have been 
 exchanyed. The contract here made was for 1400 and 700 bushels of 
 wheat, at 9s. (jd., on Sept. 11th, "bankers' bill if required"; and on 
 Sept. 19th, according to the usage of the place, the plaintiff went to 
 the defendant's warehouse to inspect it in bulk, in order to see if it
 
 REFUSAL OF SELLER TO SHOW BULK. 483 
 
 corresponded with the sample. Tlie 700-bnshel parcel was shown him, 
 but the other of 1400 was not there. PlaintiflF ofl'ered to send a load 
 to him for his inspection, or to send for a bushel at that time ; but de- 
 clined to show tlie whole, as he did not choose to let defendant into his 
 connections. Under these circumstances, the latter refused to have the 
 wheat, althoug4i he received a message a few days after, that the whole 
 1400 bushels were in his loft, ready for inspection and delivery, on a 
 bankers' bill being given for the price. It was held by the Court of 
 Queen's Bench that, under these circumstances, the contract was re- 
 scinded, and. that the seller, having refused to show the wheat when 
 required, could not afterwards insist upon the performance by the 
 buyer. 
 
 A variation made in a contract without the. surety's consent discharges 
 him, although his risJc was not thereby increased. And so it was held by 
 the Court of Queen's Bench, in Witcher v. James Hcdl. The agreement 
 here was to the effect that one Joseph Hall was to have thirty cows for 
 the dairy year, at £7 10s. a cow per annum to be paid quarterly in 
 advance, beginning from 4th of February, 1824. On that day only ten 
 cows had calved, but the plaintiff in March added two ; and what with 
 deaths, slips, and takings away with the consent of Joseph Hall, the 
 latter had, on the average, only twenty-eight cows. All these deviations 
 were made without the knowledge of the defendant, who had agreed to 
 pay the rent in consideration that plaintiff performed his agreement. 
 Plaintiff got a verdict for the rent of as many cows as Joseph Hall 
 actually had, but a rule for a nonsuit was made absolute. The Court 
 {Litttedcde diss.) held that the rent was an entire, and not a divisible 
 contract ; and that the defendant was a mere surety, and plaintiff in an 
 action against him must prove a literal performance of the contract. 
 
 Where the defendant agreed by a wrdten contract to purchase of the 
 plaintiffs 300 hogs of bacon, to be delivered at fixed times and in speci- 
 fied quantities, and after a part of the bacon had been delivered requested 
 the plaintiffs as the sale was dull not to press the delivery of the residue, 
 to which they assented — this request was held by the Court of Queen's 
 Bench, in Guff v. Penn, to be only ajmrol dispensation of the perform- 
 ance of the original contract, in respect to the times of delivery, and 
 therefore not affected by the Statute of Frauds, and the defendant was 
 held liable for not accepting the residue within a reasonable time after- 
 wards. 
 
 The ordinary rule of buying by sam})Je was thus laid down by Cress- 
 well J. in Goolc V. Riddelien : " Under ordinary circumstances a person 
 who buys goods by sample may return them if they do not answer the 
 sample, but he must do this within a reasonable time ; and if after
 
 184. PtULE OF BUYING BY SAMPLE, 
 
 objot'tinc to the o-oods lio still rotain,R them, lie is boniirl to pay for 
 tlicm, making such a deduction as he may be entitled to by reason of 
 tlieir reduced value." The case of a sale of s}wci/ic fjooch, irilh a ivar- 
 ranty tlutt fhcij icere equal to the sample, ^vas considered in Cormack v. 
 GiJIis (where the plaintilf was a seedsman, and the defendant a gardener), 
 and much more recently in Dau'son v. CuUis. In the latter case a plea 
 that the defendants made the promise in resjtect of 31 pockets of hops 
 bargained and sold by the plaintiff to the defendants ; and that at the 
 time of the promise the plaintiff produced and showed defendants a 
 sample, and promised to deliver hops equal thereto, &c., but that the 
 liojis were not equal to the sample, and that therefore they refused to 
 accept them, was held bad on special demurrer, as amounting to no7i 
 assumpsit. Jervis C.J. said, " This plea is no answer to the action. I 
 am inclined to think, according to the principle of Street v. Btay, that 
 on the sale of a specific article (as alleged ,in this plea) the buyer has 
 no right to repudiate the article if it does not correspond with the 
 sample, but that his proper remedy is to bring a cross action on the 
 warranty, or to set up the breach in reduction of damages. But it is 
 unnecessary here to express any opinion upon that point, because if 
 proof of the warranty on the part of the plaintiff" be a necessary condition 
 of his recovering, there is no promise on the part of the defendant to 
 pay, unless the specific article corresponds with the sample, and that is 
 a defence under non assumpsit. The case of Parsons v. Sexton is ex- 
 pressly in point, except that there was no delivery of the steam-engine." 
 
 And 2^c^' Md^l^ J. : " It seems to me that the princi])le of Street v. 
 Blay ought to be extended, and that the just and convenient thing is, 
 that the vendee should have an action for the breach of the warranty, 
 or that he should give it in evidence in reduction of damages, as in 
 Allen V. Cameron and several other cases" {ih.). But where, as in 
 Sieveking v. Button, the defendant pleaded to a count upon a contract 
 by him to receive a certain quantity of wool of merchantable quality 
 from the plaintiffs at a certain price, that at the time of malcing the con- 
 tract the plaintiffs proclvced a sample, and po'omised him that the hulk icas 
 equal in quantity and description thereto, hut that the wool ivhen tendered 
 was found to he of an inferior quality, wherefore he refused to accept it — 
 the Court of Common Pleas held that the plea was not bad on special 
 demurrer, as amounting to non assumpsit, inasmuch as the contract 
 therein set up was not necessarily incompatible with the contract 
 declared on. And per Mavle J. : " If issue were taken on the tender, 
 the plaintiffs would fail, unless they proved a tender of wool of the 
 quality and description ordered " {ih^. 
 
 A custom of the Liverpiool 'corn market, that wlien corn is sold hy
 
 SALE OF CALCUTTA LINSEED. 485 
 
 sample, if the buyer does not on the day it is sold examine the hulk a?id 
 reject it, he cannot afterwards reject it, or refuse to pay the ivhote price, was 
 held by Rolfe B. to be a reasonable one {Sanders v. Jameson). And 
 semlle that an article sold by sample cannot in any case be rejected as 
 not corresponding with the sample, except within a reasonable time {il.). 
 The delivery of a sa7nple, if considered to he part of a thing sold, was ruled 
 by the Court of King's Bench, on the authority of Randeau v. Wtjcdt, 
 to be a sufficient acceptance ; but otherwise where it is a sample merely, 
 and forms no part of the bulk (Coojjer v. Elston). And so it was held 
 by Gihhs C.J. in the case of a sample of trefoil {Talver v. West). 
 
 In the case of Grimoldby v. Wells, plaintiff sold by sample to defend- 
 ant four quarters of tares, which were placed in defendant's barn by his 
 servant. When the defendant saw them, he said they were not as good 
 as sample, and wrote to the plaintiff" to that efi"ect, and that he would not 
 have them. It Avas found, as a fact, that the tares were not as good as 
 sample. Held that the defendant had a right to reject them, and was- 
 not bound to send them back, or place them in neutral custody {Couston 
 V. Chapman, L. R. 2 H. L. Sc. 250 ; cited Lucy v. Moujtet, 29 L. J. 
 Ex. 110). 
 
 Wider v. Schilizzi is an authority that upon a sale (not hy sample, and 
 tvithout warranty) of merchandise, ivhich the huyer has no opportunity of 
 inspecting, it is an implied condition that the article shall fairly and reason- 
 ably answer the description in the contract. Here the plaintiff agreed to 
 buy of the defendant a cargo of " Calcutta linseed tale cpiale,'' but on its 
 arrival he objected to its quality, complaining that it had such a large 
 admixture of other seeds as not to be " Calcutta linseed." It was jiroved 
 that no seed conies to market without some admixture, the average 
 generally being two or tliree per cent., but according to the plaintiff's 
 witnesses the linseed in question had fifteen per cent, of tares, rape, and 
 mustard, and was not linseed at all within the meaning of the contract. 
 The defendant's witnesses said it was inferior, but still answered the 
 description in the contract, and that the plaintiff had sold it as and for 
 " linseed " to crushers, who had sold it made up as " linseed-cake." 
 Jervis C.J. put it to the jury to say whether the article delivered reason- 
 ably answered the description of Calcutta linseed, that is, linseed with a 
 reasonable amount of adulteration only. A verdict was found for the 
 plaintiff, and the Court of Common Pleas refused to disturb it. WiXles 
 J. said, " The jury have in substance found that the linseed in question 
 was so mixed with seeds of a different and inferior description, as to 
 have lost its distinctive character, and prevent its passing in the market 
 by the commercial name of ' Calcutta linseed.' The purchaser had a 
 right to expect not a perfect article, but an article which would be sale-
 
 4-S6 WARRANTY OF SEED. . 
 
 able ill the inarkot as ' Calcutta linseed.' If he got an article so adul- 
 terated as not reasonably to ansAver that description, he did not get 
 what he bargained for. As if a man buys an article as gold, which 
 everyone knows requires a certain amount of alloy, he cannot be said to 
 get gold if he gets an article so depreciated in quality as to consist of 
 gold only to the extent of one carat." 
 
 In Toulniin v. Hedldj, which was a case of the same class, Cressivcll J. 
 ruled that icliere a party huijs a specific cargo of guano, expected hy a par- 
 iicidar ship, and warranted to le of a particidar quality, he has a right 
 on the arrival of the ship to inspect such cargo before it is delivered to 
 him, in order to ascertain whether the warranty has been complied 
 witli, and if it has not, he may reject the cargo altogether ; but if the 
 cargo be once delivered to him, he has no right to return it on the 
 ground that it does not correspond with the warranty. 
 
 The defendant in Hooper v. Treffry asked the plaintiffs to find him a 
 "customer for his dark ; and one was found ivho agreed to purchase it, if 
 equal to the sample. It was shipped, and the defendant sent the plaintiffs 
 the invoice, and requested them to accept a bill of exchange for the price, 
 which they did on the offer of a del, credere commission. The bark not 
 being equal to the sample, the customer refused to accept it, and the 
 plaintiffs were called on to pay the bill when due. It was urged for the 
 defendant that there was no privity between him and the plaintiffs, but 
 the Court of Exchequer held that they were entitled to recover the 
 amount of the bill in an action for money paid to the defendant's use. 
 And see Johnstone v. TJsliorne and Heisch v. Carrington. 
 
 The first of the leading cases upon seed not ansivering its warranty 
 was that of Poidfon v. Lattimore, where the action was brought to 
 recover the value of eight quarters of sainfoin seed, sold by the plaintiff 
 to the defendant at £3 per quarter, and warranted good new growing 
 seed. It was proved that soon after it was bought it was examined and 
 tasted by a man of good skill, who said it was bad growing seed. This 
 opinion was not communicated to the plaintiff, but part of the seed was 
 sown and the rest sold to two witnesses, who proved it was worthless, 
 and said they would not pay for it. The plaintiff contended that as the 
 defendant had adopted the contract in part by selling and sowing the 
 seed, he was bound to adopt it altogether, and could not insist on the 
 breach of warranty as a defence to tlie action. The jury found for 
 the defendant, on the ground that the seed did not correspond with the 
 warranty, which was the only question at the trial. The Court of 
 King's Bench discharged a rule to enter a verdict for tlie plaintiff for 
 the value of the seed, and held that as the i)laintiff gave an express 
 warranty that it was good growing seed, the defendant might without
 
 STATUTE OF LIMITATIONS. 487 
 
 returning- it show that it did not correspond with the warranty, and 
 that the buyer was not bound to trust the assertions of third parties, 
 and return the seed on the assumption that it was bad seed, but was at 
 liberty to test its capabilities by sowing. In such cases of warranty the 
 vendee is entitled, although he do not return the seeds to tlie vendor, or 
 give notice of their defective quality, to bring an action for breach of 
 the warranty, or if an action be brought against him by the vendor for 
 the price, to prove the breach of the warranty either in diminution of 
 damages, or in answer to the action, if the goods be of no value. 
 
 And per Littledah J. : " The not giving notice raises a strong pre- 
 sumption that the article at tlm time of the sale corresponded with the 
 warrantg. But if that be clearly established, the seller will be liable 
 to an action brought for breach of his contract, notwithstanding any 
 length of time which may have elapsed since the sale." 
 
 The application of the Statute of Limitations to such cases was com- 
 sidered in Battleg v. FaulJmer, where the plaintiffs bought certain 
 wheat from the defendants early in 1810, as spring wheat, and sold it 
 to one Shepard, who sowed it, and discovering in the autumn that it 
 was wholly unproductive, gave the plaintiffs notice that he held them 
 responsible for the loss of the crop. This the plaintiffs communicated 
 to the defendants, as well as the fact that in June, 1811, he was about 
 to assess damages against them in the Court of Session. Nothing 
 more passed between the parties till 1818, when the suit in Scotland 
 was completed, and the plaintiffs paid Shepard his damages and costs, 
 and commenced the present action of assumpsit, alleging as special 
 damage the damages so recovered. Abiott C.J., on finding that there 
 was no promise to take the case out of the Statute of Limitations, non- 
 suited the plaintiff. The Court of Queen's Bench confirmed this 
 raling, on the ground that though such special damage had occurred 
 within six years before the commencement of the action, yet that the 
 breach of contract, which in assumpsit was the gist of the action, having 
 occurred and become known to the plaintiff more than six years before that 
 period, he was guilty of negligence, and the statute might well be pleaded. 
 The gist of the action in Allen v. Lake was that the seed proved to be 
 of a different kind to what it u-as sold for. One of the plaintiffs, in 
 company with Eeed, the defendant's agent, saw six acres of the 
 defendant's turnips in bloom, and agreed to buy the seed produced by 
 them. On August ?.rd the produce, fourteen quarters, was delivered to 
 the plaintiff, and the following sold-note— 
 " Mr. T. C. Heed, 
 Aug. 5, f Sold to Messrs. Beck & Co., for Mr. C. Lake, 14 qrs. 
 1850. t Skirvinfs Swede at lis. per bushel,''
 
 188 WARRANTY OF SKIRVING's SWEDES, 
 
 and an invoice was sent shortly afterwards. In a few days another 
 parcel of turnip seed was sold by Reed to the plaintiffs, Reed stating 
 it to be of the " same stock " as the former, and calling it Skirvincj's 
 Swedes. No bought or sold note was given on this occasion, and the 
 invoice described the seed as 24^ quarters of turnips. In May, 1851, 
 samples of both parcels were sown ; the crop partly failed, and of those 
 plants which made their appearance, the greater part were not of the 
 description of turnip called Slcirvimfs, but of a spurious and inferior 
 kind. The defendant contended that the sold note did not amount to 
 a warranty, but merely contained a representation that the first parcel 
 of seed was SkirvhKjs Swedes, and also that there was no evidence for 
 the jury that the second parcel had been warranted to be Sldrving's 
 S/redrs, the invoice describing the seed merely as 24j quarters of 
 turnips. Lord CampMl C.J. overruled both objections, and the jury 
 found for the plaintiff for the value of the seed, with leave reserved to 
 move to reduce the damages by the value of the second parcel, if the 
 Court thought there was no evidence for the jury of that parcel having 
 been sold under the warranty of its being Skirving's Swedes, and the 
 Court of Queen's Bench refused to disturb the verdict. Lord Campbell 
 C.J. said : " As regards the first parcel, I adhere to the opinion which 
 I expressed at the. trial, that the statement in the sold note amounted 
 to a warranty that the seed was Slcirving's Swedes. I also agree with 
 the rest of the Court, in thinking, with respect to the second parcel, 
 that there was evidence for the jury of the defendant having warranted 
 them also to be SMrving's Swedes. It is clear that the invoices did 
 not form the contract. There was a previous verbal contract for the 
 sale of the second parcel ; and the defendant's agent having stated that 
 the second parcel was of the same stock as the first, that statement 
 became part of the contract." 
 
 In Page (Exor.) v. Paveg the plaintiff sued defendant on a breach 
 of warranty on tlie sale of old com udieal, and the declaration contained 
 a special count, which stated a warranty that the wheat would grow, 
 and a breach that it would not grow, and that the plaintiff was deprived 
 of great gains from the corn and straw. The declaration also contained 
 counts for money had and received, and on an account stated, and the 
 particulars of demand were for the price of the wheat, but expressly 
 limited to the ■indebitatus counts. It was objected for the defendant 
 that the particulars tied down the plaintiff to £6 19.v. Gd., the price of 
 the seed ; but Patteson J, considered that the particulars only applied to 
 the common counts, to which they were expressly limited, and that this 
 did not prevent the plaintiff from giving evidence of what the value of 
 the crops might have been, with a view to his damages on the first count.
 
 WARRANTY OF SOUND MEAT. 489 
 
 The question as to tahen an action on an implied ivarrantij of the sonnd- 
 ness of meat will lie, was settled by the Court of Exchequer in Burnlij 
 V. Bollett. The plaintiflp and defendant were both farmers, and the 
 latter bought the carcase of a pig at a butcher's in the public shambles 
 in Lincoln market, but having other business, left it till it was more 
 convenient to take it awa}^ Before he returned, the plaintiff came to 
 the same stall and offered to buy the pig ; he was told it was the de- 
 fendant's, and a bargain was struck for £G 18s. Qd. N'ext day the meat 
 was found to be quite rotten, and measly (the season had been remark- 
 ably unfavourable for meat), and the action was brought on an implied 
 warranty of soundness. The defence was caveat emptor; hut Pattcson 
 J. inclined to think that the law implied such a warranty as that men- 
 tioned in the declaration, " that the said carcase was in a sound and 
 wholesome condition, and fit for human consumption." A verdict for 
 the amount was found for the plaintiff, subject to a motion to enter a 
 nonsuit, and the Court made the rule absolute. 
 
 The jury negatived all fraud in the defendant, who was not a butcher 
 or a dealer in meat. He had not exposed it publicly for sale, but had 
 simply bought it for his own use, and left it till it should be delivered ; 
 but when he sold it to the plaintiff there was a reasonable presumption 
 for the consideration of the jury that he knew it was to be used for 
 human food. The sole point for consideration was, whether an ordi- 
 nary individual, not clothed with any character of general dealer in pro- 
 visions, who hondfide sells meat for human consumption, must be taken 
 to sell them with an implied warranty of soundness. This was not the 
 case of a butcher or taverner or farmer killing or exposing to sale meat 
 in open market, who may be reasonably taken as impliedly warranting 
 the meat to be sound. It was put for the plaintiff, that by reason of 
 food being the subject of sale, this was an exception to the general 
 rule, so as to make the seller responsible on account of the common 
 good, though no care could have discovered the latent defect ; but the 
 defendant was not dealing in the way of a common trade, and was not 
 punishable in the least for what he did. He merely transferred his 
 bargain to the plaintiff. Lord JIale's note in Fitzherbert's "Natura 
 Brevium," p. 94, says that " There is diversity between selling corrupt 
 wines as merchandize ; for there an action on the case does not lie with- 
 out warranty ; otherwise if it be for a taverner or victualler, if it preju- 
 dice anyr And the Court of Exchequer held that the defendant fell 
 within the reason of the former part of Lord Hales distinction ; and 
 that there being no evidence of a warranty or of any fraud, he was not 
 liable. And where the plaintiff, a butclier, sold the defendant meat, 
 and the latter after taking it home subsequently called at the shop, and
 
 490 ALTERNATIVE CONTEACT. 
 
 said before several customers, " / intended to have dealt with you, hut I 
 shall not do so, for you changed the land) which I houghl of you for a 
 coarse piece of mutton,'' it was held by the Court of Exchequer in Crisp 
 V. Gill that an action for slander did not lie, as the communication so 
 made was a privileged one. 
 
 Coutao-ious Diseases Animals Act, 32 &33 Vict. c. 70, s. 75 : in order 
 to convict a person for being in possession of a diseased animal under 
 this Act, it must be proved that he was aware of the fact that the animal 
 was diseased. Nichols v. Hall, 8 L. R. C. P. 322. 
 
 Alternative contracts must he stated according to the fact ; and where a 
 contract was made for the purchase of 100 bags of wheat, 40 or 50 of 
 which were to be delivered on one market day, and the remainder on the 
 next market day, it was held that the plaintiff could not declare as npon 
 an absolute contract for the delivery of 40 bags on the first day, though 
 40 bags were then in fact delivered, but the contract must be stated in 
 the alternative according to the original terms {Penny v. Porter). And 
 if a contract to deliver soil be declared upon as a contract to deliver soil 
 or breeze, the variance will be fatal if it appears that soil and breeze are 
 diifereut things {Coolc v. Mcmstone). 
 
 An agreement contamed in a contract for the jncrchase of a cargo of 
 wheat, to refer to arhitratioji any difference that might arise between the 
 parties as to the contract, is enforceable by action ; and a dispute as to 
 the amount of compensation to be paid to the plaintiif in respect of defi- 
 ciency of cargo, is a "difference" within the meaning of such agreement 
 {Livinyton v. Ralli). 
 
 A contract to deliver goods to purchaser '■'■from time to time as re- 
 quired,'' does not lapse at the expiration of a reasonable time from the 
 date of the contract ; and the vendor must, to determine it, request 
 the purchaser to require the goods, and if the latter does not do so 
 within a reasonable time fi-om such request, the contract lapses {Jones 
 V. Gihhons). 
 
 Where no entire sum has heen agreed upon, it is generally presumed 
 that it was the intentwn of the contracU^ig parties that the remunera- 
 timi should keep pace ivith the consider'ation, and be recoverable Mies 
 quotics by an action on a quantum meruit. And this doctrine seems 
 to be countenanced by Withers v. Reynolds, which was an action of 
 assumj)sit for not delivering straw according to the following agree- 
 ment : 
 
 "John Reynolds undertakes to supply Josejih Withers with wheat-straw 
 delivered at his pi'emises till the 24th June, 1830, at the sum of 
 335. per load of 3G trusses, to be delivered at the rate of three loads
 
 DELIVERY FROM TIME TO TIME. 491 
 
 in a fortnight ; and the said J. W. agrees to pay the said J. R. 33s. 
 per load, for each load so delivered from this day, till the 24th June, 
 1830, according to the terms of this agreement." 
 
 When the straw had been supplied for some time, the defendant asked 
 for payment, and received 11 gs. payment for all the straw, except the 
 last load, as the plaintiff said he should always keep one load in hand. 
 The defendant said he should send no more straw unless it was paid for 
 on delivery, and no more was accordingly sent ; and it was submitted on 
 his behalf at the trial that there must be a nonsuit, as the plaintiff on 
 his own showing had not performed his own part of the contract, which 
 was in effect to pay for each load on delivery. It was held by the Court 
 of Queen's Bench that according to the true effect of the agreement each 
 load was to be paid for on delivery, and that on the plaintiff's refusal to 
 pay for them, the defendant was not bound to send any more, and the 
 Court directed a nonsuit. 
 
 Pafteson J. said, " If the plaintiff had merely failed to pay for any 
 particular load, that of itself might not have been an excuse to the de- 
 fendant for delivering no more straw ; but the plaintiff here expressly 
 refuses to pay for the loads as delivered ; the defendant, therefore, is 
 not liable for ceasing to perform his part of the contract." Taiinion J. 
 expressly founded his decision upon the special wording of the contract 
 *' for each load, &c.," which he considered to import that each load shall 
 be paid for on delivery. On this Mr. Smith remarks in his " Leading 
 Cases," vol. IL, p. 19, that if this case were decided on any other ground, 
 it vrould be contrary to the opinion expressed by Parke J. in Oxendale 
 V. Wetherall, viz., that " Where there is an entire co7itract to deliver alarge 
 quantitij of goods, consisting of distinct parcels, within a special time, and 
 the seller delivers part, he cannot hefore the expiration of that time iring 
 cm action to recover the price of that part delivered, because the purchaser 
 may, if the vendor fail to complete his contract, return the part delivered. 
 But if he retain the part delivered after the seller has failed in perform- 
 ing his contract, the latter may recover the value of goods which he has 
 so delivered." Here the plaintiff had delivered to the defendant 130 
 bushels of wheat, and the question on the evidence was, whether the 
 contract was for 250 bushels, or so much as the plaintiff could spare. 
 The jury found that it was an entire contract, and Bayley J. ruled that 
 notwithstanding the non-performance of part of the contract by the 
 vendor, if the purchaser retains the part which has been delivered after 
 the time for completing the delivery has expired, he is liable for the price 
 of that part. The Court of Queen's Bench refused a rule for a nonsuit, 
 and Lord Tenter den C.J. observed that, " If the rule contended for were
 
 492 XO SrECIFIED TIME FOR DELIVERY. 
 
 to prevail, it would follow that if there had been a contract for 250 
 bushels, and 249 had been dcl'vered to and retained by the defendant, 
 the vendor could never recover for the 249, because he had not delivered 
 the whole." 
 
 Wierea ivriiten contract for the sate of goods specified no time for detirer- 
 ing them, Lord Etlenboroagh C.J. held in Greaves v. Ashlin (which was 
 an action for non-delivery) that it was not competent for the defendant 
 to give parol evidence that it was a condition of sale that the goods 
 should be taken away immediately, or that by the usage of trade where 
 goods are sold to be delivered at a distant day the time is always men- 
 tioned in the written contract, and that although the purchaser (who 
 had here received a delivery order) neglected after notice to carry them 
 away, the seller had not on that account a right to re-sell them, and the 
 plaintiff had a verdict for the dift'erence per quarter between oats at 
 45.S. 6d., tlie price at which he bought the odts, and 51s. or that for 
 which they were re-sold. And so it was held by the Court of Common 
 Pleas in Peterson v. Agre, that the measure of damages in the case of a 
 breach of contract to deliver goods at a sjmified time, is the difference 
 between the contract price and the market price at the time of the 
 breach of contract, or the price for which the vendee had sold ; but that 
 the latter cannot recover as special damage the loss of anticipated profit 
 to be made by his vendees. This was an action of assumpsit for the 
 breach of a contract of delivery of " from 80 to 120 tons of best oblong 
 fresh-made Flensburg linseed-cakes, at £6 10s. cost and freight to a safe 
 port on the East coast of Great Britain, or £6 13s. to a safe port in the 
 Channel." In consequence of an undue delay in the shipment, which 
 was to have taken place at "the first open water after the end of 
 January," at Flensburg, the plaintiff declined to receive the cakes, and 
 brought this action to recover £27 lOs., the difference between the price 
 at which he had bought and that at which he had sold the 110 tons, and 
 also £137 lO.s. claimed from him as damages by his vendee, but only 
 recovered the former. 
 
 Again in Phitjiofts v. Evans, where a certain mitler (defendant) con- 
 tracted for the purchase of wheat " to be delivered at B as soon as 
 
 vessels could be jjrocured for the carriage thereof; " cmd sulsequently {the 
 market having fatten) gave the seller notice that he iroidd not accept it if it 
 were delivered, the wheat being then in transitu, it was held by the Court 
 of Exchequer, on the authority of Leicjh v. Paterson, in an action for not 
 accepting the wheat, that the proper measure of damages was the differ- 
 ence Ijetween the contract price and tlie market price on the day when 
 the wheat was tendered to him for acceptance at Birmingliam and 
 refused, and not on the day wlieu the notice was received by the seller.
 
 DEFINITION OF DIRECTLY. 493 
 
 In Leigh v. Palerson the defendant contracted to deliver tallow to the 
 plaintiif " in ^(// next December" at 62s. per cwt. The defendants in 
 October tried to compromise and be off their bargain (as they had sold 
 the tallow for 71s.), but the plaintiff insisted on holding them to it, and 
 the Court considered that tallow having risen in price, the plaintiff was 
 entitled to recover damages according to the market price (81s.) on the 
 last day on which the contract would have been performed, namely, the 
 31st of December, as he had not acquiesced in its being rescinded when 
 the defendants refused to perform it, — and not according to the (71s.) 
 October price. And in Startu]) v. Cortazzi, which was a case of delivery 
 of Odessa linseed (100 chetwerts = 73 quarters), payment of the differ- 
 ence between the contract price (3Gs. per quarter) and the value of the 
 linseed (48s.) at the time when the cargo ought to have been delivered 
 in due course, was that to which the plaintiffs were entitled. The de- 
 fendant had paid 47s. into Court, being the price at the time of the 
 notice of non-completion. It had risen to 56s., at the time of the trial, 
 and the plaintiff contended that the damages should be calculated ac- 
 cording to that price ; but 2)er Lord Abinger C.B. this was not a case 
 resembling contracts for the replacing of stock, where the damages are 
 estimated at the price of the funds. 
 
 A contract to be performed " direct! g" means to be performed not 
 " within a reasonable time," but " sjjeedilg,''' or at least " as earlg as 
 practicable." Thus, in Duncan v. Tujjhani, on February 18 the plaintiff 
 wrote to the defendant, oflFering to supply him with linseed cake at 
 £10 15s. per ton, and on the 19th the defendant replied, "I can take 
 5 tons at £10 10s., but it must be put on board directlg." On the 22nd 
 the plaintiff' again wrote : " I shall ship you 5 tons best cakes to-viorroiv ; " 
 and it was held by the Court of Common Pleas that the correspondence 
 did not prove a contract on the part of the defendant to accept cake 
 " to be delivered within a reasonable time," and a new trial was ordered, 
 after a verdict for the plaintiff. Gresswell J. said : " It is true, as it 
 appears from Tliompson v. Gil)son, that ' directly ' does not mean instanier, 
 and it may be subject to a similar limitation here ; but the expression 
 * within a reasonable time,' certainly is larger than is warranted by the 
 terms of the contract." And^j^r Curiam, a contract is complete upon the 
 p)0sting by one partg of a letter addressed to the other accepting the terms 
 offered by the latter, notwithstanding such letter never reaches its destina- 
 tion. A contract by a manufacturer to furnish certain specified goods 
 " as soon as possible," means within a reasonable time, regard being had 
 to the manufacturer's ability to produce them, and the orders he may 
 already have in hand {Atttvood v. Emery). 
 
 Where by a written contract the plaintiffs agreed with the defendant
 
 494 MEANING OF MARKET VALUE. 
 
 to make liiiii a canvas tent covering, the canvas to l)e equal to pattern, 
 and of the marM value of llrf. per yard, and the making to be charged 
 at 5^/. per yard, and it wns agreed that if the market rahio of the canvas 
 should be less than that, the amount {i.e., the difference) should be 
 deducted, the Court of Common Pleas held that the " market value " 
 must be taken to mean the price of the commodity in the market as 
 between the manufacturer and an ordinary purchaser ; and that those 
 words were not to receive a different interpretation because a person 
 requiring a large quantity might have purchased the canvas at a lower 
 rate {Orchard v. Simpson). 
 
 What com! Hides a delivery of harh came before the King's Bench for 
 decision in Simmons v. Swift. Here the owner of a stack of bark entered 
 into a contract to sell it at a certain price 2)er ton, and the purchaser 
 agreed to take and pay for it on a certain day specified, and a part was 
 afterwards weighed and delivered to him. It was held that the property 
 in the residue did not vest in the purchaser until it had been weighed, 
 that being necessary to ascertain the amount to be paid, and that even 
 if it had vested, the seller could not before such weighing maintain an 
 action for goods sold and delivered. 
 
 But where, as in Tarling v. Baxter, the defendant agreed to sell 
 flainiiff a stack of hay for £145 on the 4th of February, to le paid for in 
 one month, and to stand for three on the defendants piremises, pUintiff 
 stipulatiny that it should not be cut till it teas paid for, and the plaintiff 
 accepted a bill for the amount on the 8th of January, and on the 20th 
 of that month the stack was accidentally burnt, the Court held that the 
 plaintiff could not recover back the price, as there was a contract for an 
 immediate sale, by which the property in the hay vested immediately in 
 the plaintiff. Litiledale J. said : " Here was an absolute agreement on 
 the 4th of January for the sale and purchase of the hay, to be paid for 
 in a month. According to the seller's contract-note, the buyer might 
 have cut and removed the hay immediately. By the buyer's conti-act it 
 was stipulated that he should not cut the hay until it was paid for. But 
 the property in the hay had already passed to him by the first contract 
 of sale, and all that he did afterwards was to waive his right to the 
 immediate possession. Then the property having passed to the buyer, 
 the loss must fall upon him." 
 
 The sale of a specific chattel on credit, though that credit may he limited 
 to a definite period, transfers the property in the goods to the vendee, giving 
 the vendor a right of action for the price, and a lien on the goods, if they 
 remain in his possession, till that p)rice he p)aid. But default of payment 
 does not rescind the contract ; and such was the doctrine cited by 
 Holroyd J. from Com. Dig. Agreement b 3 in Tarliiig v. Baxter, which
 
 SALE OF SPECIFIC CHATTEL OX CREDIT. 405 
 
 governed the decision of tlie same Court in Marlinddh v. Smith. Here 
 the defendant on April 23rd sold six oat stacks for £HU, standing on his 
 own ground, to the plaintiff, with liherty to leave them there till the 
 middle of August, and to defer payment for twelve weeks from the date 
 of the agreement. In the beginning of July the defendant told the 
 plaintiff that if he did not pay on the IGth of the month he would 
 consider the contract at an end. Plaintiff did not pay on that day, but 
 asked for time, which the defendant refused to give ; adding, that now 
 the plaintiff should not liave the stacks, as he had failed to come to 
 time. Two or three days after, the money was tendered, but not 
 accepted ; and on the 14th of August the plaintiff served a written 
 notice on the defendant, repeating his tender, and stating his intention 
 to remove the stacks at ten o'clock next morning, and requesting ad- 
 mittance to the field for that purpose. He again made an actual tender, 
 and required the defendant not to sell the stacks, which he did. Trover 
 was accordingly brought, and Alder son B. directed a verdict for the 
 plaintiff, giving leave to move to enter a verdict for the defendant on 
 the second issue, that the plaintiff was not possessed of the goods and 
 chattels of his own property, modo et forma, &c. The Court refused the 
 rule, and decided that the vendor had no right to treat the sale as at an 
 end, and re-invest the property in himself by reason of the defendant's 
 failure to pay the price at the appointed time, and that the vendor's 
 right to detain the thing sold against the purchaser must be considered 
 as a right of lien till the price is paid, not a right to rescind the 
 bargain ; and here the lien was gone by tender of the price. 
 
 According to Smiili v. NcaU (which confirmed the judgment of Kin- 
 dersley V.C. in Warner v. WilUngton), a tvritten proposal, coniahihig Uie 
 terms of a proposed contract, signed by tJie defendant, and assented to hj 
 the plaintiff hy word of mouth, is a sufficient agreement luitMn the Ath 
 section of the Statute of Frauds. But an agreement whereby all that 
 is to be done by the plaintiff, constituting one entire consideration for 
 the defendant's promise, is capable of being performed within a year, 
 and no part of what the plaintiff is to do constituting such consideration 
 is intended to be postponed until after the exj^iration of the year, is not 
 within the 4th section of the statute, notwithstanding the perform- 
 ance on the part of the defendant is or may be extended beyond that 
 period (/&.). And see Donellan v. Read ; and the judgment of Lord 
 Wenslegdale in Cherry v. Heming. 
 
 And per Parlce J. : " In the older cases the Court did not advert to 
 the words of the statute ; but the later cases {Howe v. Palmer ; Hanson 
 V. Armitage ; Carter v. Tonssaint ; Tempest v. FUzgercdd) have estab- 
 lished that unless there has lecn such a dealing on the pari of the pur-
 
 4-96 DELIVEEY TO SATISFY STATUTE OF FRAUDS. 
 
 cliaser as io (hprivp him of an}/ rif/J/f to olijrri lo ilic qvaniity m- qvalily of 
 the iiooih, or lo (Irpriro the .sfj/py of J/ is riijld of ?/>;?, tliere cannot be any 
 part acceptauce to satisfy tliu 4tli suction of the statute," {Smith v. Sur- 
 nuiti). 
 
 A some-what nice qacstion as to what teas a delivery to satisfy the 
 nth scrtiun of the Statute of Frauds arose in Gorman v. Boddy. The 
 defendant gave the plaintiff a written order for ten firkins of butter, 
 which he directed to be sent to him by a certain conveyance. Instead 
 of ten fiirkins twelve were sent, and the defendant refused to receive 
 them. The carrier said that his general practice was never to deliver 
 part only of a parcel of goods. The tvv-elve firkins were never in de- 
 fendant's shop ; but while they stood in the street he drew a sample 
 fi-om a firkin, and said that it was inferior. The carrier then put the 
 goods into his cart, and sent them back by railway ; and an action was 
 brought for goods sold and -delivered. In summing up, CressiveJl J. 
 said : " At that time the possession of the goods was in the carrier, and 
 he might perhaps maintain trespass against the defendant for doing as 
 he did. But that will not help you. How can you make out that 
 these goods were delivered to the defendant ? They were sold ; but I 
 do not think that you have proved a delivery. The defendant never got 
 the butter, there was therefore no actual delivery to him ; nor was there 
 any delivery to the carrier, as the defendant's agent. I do not see that 
 the carrier was his agent to receive more than ten firkins. The delivery 
 of the ten firkins, therefore, to the carrier, with two others, as one 
 iKircct, was a delivery in respect of which the carrier was not the defend- 
 ant's agent ; and it thus appears that there w^as no delivery of the goods 
 to the defendant at all, and consequently there could be no acceptance 
 thereof by liim, so as to satisfy the 17th section of the Statute of 
 Frauds." The plaintiff was nonsuited. Respecting the delivery to a 
 carrier, it was observed by Parl^e B. in Johnson v. Dodgson, that " such 
 delivery may be a delivery to the defendant ; but the acceptance of the 
 carrier is not an acce})tance by him. Tlie old cases in which it had been 
 said that a receipt by a carrier was an acceptance to satisfy the statute, 
 were overruled by Hoii:e v. Palmer ; wA Hanson v. Armitage." And 
 per Lord Alinger C.B. : " If, to take the strongest case, the purchaser 
 sent his own servant for the goods, and when they were brought sent 
 them back as not answering the contract, he could not be said to accept 
 Uiem " (ih.). 
 
 Chaplin v. Ptogers is a leading case as to what constitvtes a delivery. 
 The parties were in the plaintiff's farm-yard, and the defendant, after 
 objecting to the quality of a stack of hay (particularly the inside part) 
 in the yard, agreed to take it at 2s. Q>d. per cwt. Soon after, he sent a
 
 WHAT CONSTITUTES A DELIVERY OF GOODS. 497 
 
 farmer to look at it, and his opinion was unfavourable. In the course 
 of t^YO months a farmer called Loft agreed with the defendant to pur- 
 chase some of the hay still standing untouched in the plaintiff's yard ; 
 and the defendant told Loft to go there, and ask what condition it was 
 in, saying he had only agreed for it if it were good. The plaintiff 
 having informed Loft it was in a good state, the latter agreed to give 
 the defendant 3s. dd. per cwt. for it, the defendant having told him 
 that he had agreed to give the plaintiff Ss. 6d. for it. Loft brought 
 away 36 cwt., but without the knowledge, and against the direction, of 
 the defendant. The evidence as to the quality of the hay, when the 
 stack was afterwards cut, was contradictory. It was objected for the 
 defendant that the contract of sale was fr-audulunt and void by the 
 vStatute of Frauds, being for the sale of a commodity no part of which 
 was delivered, and of which there was no acceptance by the defendant ; 
 but Iloiltam B. left it to the jury to decide whether the sale had been 
 fraudulent, and whether, under the circumstances, there had been an 
 acceptance by the defendant ; and they found for the plaintiff on both 
 points, and gave him £50 damages, being the value of the hay at the 
 price agreed for. A rule for a new trial, on the grounds that the 
 learned judge had left that as a question of fact to the jury which he 
 himself ought to have decided as an objection in point of law arising 
 on the Statute of Frauds, and that the evidence did not warrant the 
 verdict, was discharged. Lord Ken//07i'C.J. said : "I do not mean to 
 disturb the settled construction of the statute, that in order to take a 
 contract for the sale of goods of this value out of it there must be either 
 a part delivery of the thing or a part payment of the consideration, or 
 the agreement must be reduced to writing in the manner therein speci- 
 fied. But I am not satisfied in this case that the jury have not done 
 rightly in finding the fact of a delivery. Where goods are ponderous, 
 and incapable, as here, of being handed over from one to another, there 
 needed not be an actual delivery ; but it may be done by that which is 
 tantamount, such as the delivery of the key of a warehouse in which 
 the goods are lodged, or by delivery of other indicia of property. Now 
 here the defendant dealt with this commodity afterwards as if it were 
 in his actual possession, for he sold part of it to another person. 
 Therefore, as upon the whole justice has been done, the verdict ought 
 to stand." 
 
 This case was relied on for the plaintiff in Maberley v. Bhcppard 
 where the defendant employed plaintiff to construct a waggon, and 
 while the vehicle was in the plaintiff's yard, unfinished, bought iron- 
 work and a tilt of a man, who assisted plaiutiff's workmen to fix it. 
 It was contended that the defendant must be thus taken to have exer-
 
 498 EVIDENCE OF ACTUAL ACCEPTANCE. 
 
 cised acts of ownership over the Tvag^yon, and that the exercise of such 
 acts was tantamount to a delivery ; but these things having been 
 done before the waggon was finished, and there being no proof of 
 actual deliveiy, the Court of Common Pleas held that the plaintiff was 
 rightly nonsuited in an action for goods sold and delivered. They 
 thought that " the act proved at the trial was by no means so strong 
 and unequivocal as that which took place in Chaplin v. Rogers, where 
 the purchaser sold part of the hay to a stranger, who actually took it 
 away." 
 
 In Ho7cc V. Palmer the Court of Queen's Bench took a similar view 
 of Chaplin v. Roejers, when it was relied on as an authority for the 
 jilaintiff. There the grower of some tares in Essex sent his nephew 
 with a sample to Romford market, where the defendant agreed to buy 
 12 bushels at £1 per bushel, and to send to plaintiffs farm to take 
 them away. He declined taking the sample, saying he had seen the 
 tares on the plaintiff's premises, and that he had no immediate use for 
 them, and therefore requested that they might remain there until he 
 wanted to sow them, which was agreed to. Accordingly, on the 
 nephew's return, the tares were measured and set apart in the granary, 
 with instructions that the defendant was to have them when he called. 
 The Court did not consider that this was an acceptance by the de- 
 fendant, so as to take the case out of the 17th section of the Statute of 
 Frauds. Baijley J. said : " The tw'O cases cited are distinguishable 
 from tliis. In Chaplain v. Rogers the jury thought that ihere ivas 
 sufficient evidence to draiv the conclusion of an actual acce2)tance, inas- 
 much as the vendee had dealt ivith the hay as his own ; and in Elmore 
 V. Stone the buyer directed expense to be incurred, and the directing 
 of that expense was considered evidence of an acceptance on his part. 
 That case goes as far as any case ought to go, and I think we ought 
 not to go one step beyond it. There is this distinction between that 
 case and this, that there an expense was incurred on account and by 
 direction of the buyer, here there is none ; but I must say, however, 
 that I doubt the authority of that decision." Although the defendant 
 in Hoive v. Palmer professed to have already seen and approved of the 
 tares in bulk when he made the bargain, the circumstances from which 
 the acceptance was inferred in Aldridge v. Johnson were of a much 
 stronger character. 
 
 This was a special case stated in detinue for the recovery of a quantity 
 of barley, with a count in trover. There was an agreement between 
 the plaintiff and one Knight for the exchange of 200 quarters, part of 
 a quantity of barley in bulk on Knight's premises, for a number of 
 bullocks, plaintiff to send his sacks to be filled from the bulk, and on
 
 REFUSAL TO DELIVER TO BANKRUPT VENDEE. 499 
 
 delivery of the barley to pay Knight £23, the difTerence between the 
 price of the bullocks and the corn. Plaintiff sent the bullocks to 
 Knight, who sold them, and also sent 200 half-quarter sacks to be 
 filled, ordering them to be sent home by the railway. Knight //7fe^/ 
 155 of tlic sacks from such hulk, lid never delivered them at the railimfj 
 station ; and subsequently lecoming a bankrupt, tlie corn ivhkU had been 
 filled was ^mt back again to the bulk whence it had beentalieii. It was 
 held by the Court of Queen's Bench, that the sacks having been sent 
 and filled by Knight, the property in that part passed to the plaintiff, 
 although they had never left Knight's premises, as plaintiflF having 
 examined the grain, and approved of it, the contract was complete 
 when the separation was made by Knight. 
 
 Lord Campbell C.J. observed that the argument as to the property 
 in the whole 200 quarters having passed to the plaintiflP, though it was 
 part of a larger bulk, derived from the bargain between the parties 
 and the fact of the bullocks being sent to Knight, was untenable ; be- 
 cause it is well settled that where there is a purchase of a part of a larger 
 quantity of goods in bulk, the property does not pass to the vendee 
 until separation. " No part of the property in bulk," said his Lordship, 
 " ever passed to the plaintiff ; because until there was a separation the 
 whole bulk belonged to the bankrupt, and what part vested in the 
 purchaser could not be ascertained. Nothing can be clearer than that 
 when a part of goods in bulk is purchased, until separation and appro- 
 priation by tlie vendor, and assent given by the purchaser, there is no 
 transfer of the property; therefore as to the 155 sacks, I think there 
 must be judgment for the plaintiff ; and as to the remainder, our judg- 
 ment must be for the defendant. Looking at the bargain, and what 
 was done under it, when the barley was put into the sacks the property 
 in it was appropriated and vested in the plaintiff, because there ivas a 
 prior assent by the plaintiff. He examined the goods, a^iproved of them, 
 and sent his sad! s to be filled; and if any subsequent assent were neces- 
 sary, I think that ivoiild be supplied by the orders given to send the goods 
 by railway. Nothing remained to be done by the vendor ; he had ap- 
 propriated a part with the consent of the vendee, just as much as if the 
 vendee had sent boxes, and when they were filled, the keys had been 
 forwarded to the vendee ; in such a case it could not be disputed that 
 the property would vest in the purchaser. Then as to the alleged con- 
 version, I see no diificulty ; for the goods being in the plaintiff, he has 
 done nothing to divert it, nor anything which can be complained of. 
 It was a wrongful act of the bankrupt's to take the corn out of the 
 sacks, and then to bring the property into his hands again. By doing 
 this he has converted the plaintiff's property, and therefore the defendants, 
 
 K K 2
 
 500 DELIVERY OF SAMPLES. 
 
 as his assignees, are liable, they having claimed it as the property of the 
 bankrupt." 
 
 Where goods are sold by sample, the handing over the samples to 
 the buyer does not, in the absence of. evidence of a usage or custom 
 to the contrary, amount to a delivery and acceptance of part of the 
 things sold, so as to take the case out of the 17th section of the Statute 
 of Frauds ; lut it is otherwise wliere the huijer draws samples from the 
 bulk after he has jmrchased the goods. The latter was the case in 
 Gardner v. Grout, which was an action for a breach of contract to 
 deliver 24^ tons of sacks and bags, which the defendant had agreed 
 to sell to the plaintiff at £11 per ton. A verbal contract was proved 
 in the terms alleged in the declaration, but there was no contract in 
 writing or any part acceptance. The plaintiff relied, in order to take 
 the case out of the Statute of Frauds, on a part delivery and ac- 
 ceptance, which was supported by the following evidence : Four days 
 after the sale the plaintiff went to the defendant's warehouse, and 
 asked for samples of the sacks and bags, which were given to him 
 by the defendant's foreman, and which he promised to pay for when 
 the bulk (which was all there at the time) was taken away. The 
 samples so given to the plaintiff were, by the defendant's order, weighed 
 and entered ; and the jury found that they were delivered and accepted 
 as part of the bulk, and gave the plaintiff a verdict for £40, which the 
 Oouit of Common Pleas refused to disturb. Hodgson v. Le Brett and 
 Anderson v. Scott are anthorities to show that if a person selects and 
 puts a mark on a particular article, intending to take possession of it as 
 his own property, that is evidence for the jury of an acceptance. 
 Ealdey v. Parker only decides that, under the circumstances, there was 
 no acceptance and receipt. It is an authority to show that the selecting 
 ])articular articles does not amount to a receipt within the statute, 
 bat is merely an agreement that the property in the specific articles 
 shall pass. At common law, the property would pass by the contract 
 of bargain and sale ; but in order to satisfy the statute, there must 
 be either a part payment or an acceptance and receipt of goods. In 
 Hanson v. Armitage there was no acceptance by the buyer of the goods. 
 In the case of Smith v. Hughes, 6 L. E. Q. B. 597, the plaintiff showed 
 the deiendant a sample of oats ; the defendant took the sample away 
 with him, and afterwards wrote to the plaintiff to the effect that he 
 would take the oats. According to the defendant's version of the 
 story, the plaintiff had said they were "old" oats; this, however, 
 the plaintiff denied. The oats, in fact, were new, and the defendant 
 refused to take them. Held that the defendant was bound by his 
 contract.
 
 ACTUAL ACCEPTANCE AND RECEirT. • 501 
 
 The whole tenor of the decision of the Court of Queen's Bench, iti 
 Morton v. Tihhett (which was contrary to some previous dicta, though 
 not to any actual decision), was to the effect that the acceptance and 
 actual receipt of goods, ivlikh make a trritien memorandum unnecessarij 
 under the 11th section of the Statute of Frauds, are not such an accept- 
 ance and receipt as will preclude the purchaser from questimiing the, 
 cpuantitjj or quality of the goods, or in any way disputing the fact of the 
 performance of the contract hy the vendor ; and that the effect of such 
 statutory acceptance and receipt is merely to dispense with the necessity 
 of a written memorandum of the contract. The action was to reco\-er 
 the price of 50 quarters of wheat, which the plaintiff sold to the de- 
 fendant by a sample, and which the latter took away with him. On 
 the 20th of August (next day) the wheat was given to a general carrier 
 and lighterman, Edgeley, who was sent by the defendant, to take it 
 by water from March to Wisbeach ; and on that day the defendant 
 sold the wheat at a profit, by his sample, to one Hampson, at Wis- 
 beach market. The wheat reached Wisbeach on the 28th, and was 
 tendered by Edgeley to Hampson on the 29th ; but he refused to take 
 it, on the ground that it did not correspond with the sample ; and 
 notice of this refusal was given to the defendant, who had never seen 
 or examined the wheat by proxy ; and on the 30th of August he wrote 
 to the plaintiff, repudiating his contract, on the same grounds. The 
 defendant objected that, as there was no memorandum in writing of 
 the bargain, there was no evidence of acceptance and receipt to satisfy 
 the 17th section of the Statute of Frauds. PollocTc C.B. overruled this 
 objection ; and a verdict was found for the plaintiff, with leave to move 
 to enter a nonsuit, if the .Court should thmk either that there was no 
 evidence of acceptance or receipt, or no such evidence as justified the 
 verdict. 
 
 The Court held that there was evidence to warrant a jury in finding 
 acceptance and actual receipt by the defendant within the meaning of 
 stat. 29 Car. II. c. 3, s, 17. Lord Gamplell C.J. said, in the course 
 of his very elaborate judgment, " As the Act of Parliament expressly 
 makes the acceptance and actual receipt of any part of the goods sold 
 sufficient, it must be open to the buyer to object, at all events, to the 
 quantity and quality of the residue ; and even where there is a sale by 
 sample, that the residue offered does not correspond with the sample. 
 We are, therefore, of opinion that whether or not a delivery of the goods 
 sold to a carrier or any agent of the buyer is sufficient, still there may 
 he an acceptance or receipt ivithin the meaniny of the act without the 
 Ivyer having examined the goods or done anything to preclude him from 
 contending that they do not correspond ivith the contract. The accept-
 
 oO-^ VENDEE MAY DISPUTE QUALITY OF GOODS. 
 
 imoo lo let in parol eyidence of the contract appears to us to be a dif- 
 ftreut acceptance from that which afibrds conclusive evidence of the 
 contract having been fulfilled. We are, therefore, of opinion in this 
 case that, although the defendant had done nothing which would have 
 precluded him from oljjccting tnat the wheat delivered to Edgeley was 
 not according to the contract, there was evidence to justify the jury in 
 finding that the defendant accepted and received it." 
 
 A rule nisi on the authority of Morton v. Tibhetts was discharged 
 in Hunt v. Hcclit, which decided that there can ie no accejitance and 
 actual receipt of goods ivithin the 11 th section, unless the vendee has 
 an opiMrtuniiij of judging tvhetJier the goods sent correspond ivith the 
 order ; and hence tlud although there mag he a receipt there need not 
 nccessarihj he an acceptance. The defendant in this action for goods 
 sold and delivered went to the plaintiff's warehouse to buy bones, and 
 inspected a heap of ox and cow bones, and others of an inferior kind. 
 He objected to the latter, and verbally agreed to buy a quantity of the 
 other bones to be separated from the rest, and to contain not more 
 than 15 per cent, of cow bones, giving directions as to where they were 
 to be sent, and the mode of making the sacks. The plaintiff sent 50 
 bags (leg bones marked " os a," and the bullocks " os b"), and 
 according to a request contained in a letter of February 7, filled up the 
 shipping note, and delivered them at the wharf on 9 th of February. 
 On the following day the defendant examined the bones, and refused 
 to accept them, as not being what he had bargained for. Martin B. 
 thought there was no evidence of acceptance .and receipt to satisfy the 
 17th section of the Statute of Frauds, and nonsuited the plaintiff, re- 
 serving leave for him to move to enter a verdict for that amount. 
 Alderson B. said, in discharging the rule, " If a person agi-ees to buy a 
 quantity of goods, to be taken from the bulk, he does not purchase the 
 particular part bargained for, until it is separated from the rest, and he 
 cannot be said to accept that which he knows nothing of, otherwise it 
 would make him the acceptor of whatever the vendor chose to send 
 him, whereas he has a right to see whether in his judgment the goods 
 sent correspond with the order. The statute requires an acceptance 
 and actual receipt of the goods ; here there has been a delivery, but no 
 acceptance." 
 
 Martin B. thus remarked on Morton v. Tihhetfs : " There are various 
 authorities to show that for the puri)osc of an acceptance within the 
 statute the vendee must have had the opportunity of exercising his 
 judgment with respect to the article sent. Morton v. Tihhetts has been 
 cited as an authority to the contrary ; but in reality that case decides no 
 more than tJiis — tlud where the purcliaser of goods taJces upon himself to
 
 WHAT CONSTITUTES ACCEPTANCE OF SEED. 503 
 
 exercise a dominion over them, and deals luiih them in a manner incon- 
 sistent tvith the right of property teing in the vendor, that is evidence to 
 justify the jury in finding that the vendee has accepted the goods, and actu- 
 ally received the same. Hanson v. Armitage and Norman v. Phillips are 
 express authorities that a wharfinger or a carrier is not the agent of a 
 vendee, so as to hind him hg acceptance of the goods. In Meredith v. 
 Megh, Lord Campbell C.J. expressly overruled Hart v. Sattlcy, where 
 Chamlre J. ruled that if goods are ordered verbally, the delivery to a 
 carrier who has been used to deliver goods between the parties is 
 sufficient to bind the contract, according to the 17th section of the 
 Statute of Frauds. Of 3Iorton v. Tihhetts his Lordship also remarked 
 in that judgment, " The vendee there resold the wheat at a profit, and 
 altered its destination in the carrier's hands {by sending it to another 
 wharf), and that was held to be evidence of an acceptance and receipt." 
 
 In Coombes v. Bristol and Exeter Railway Company, the plaintiff 
 agreed with one Avery by a verbal contract for the purchase of goods 
 exceeding £10 in value, to be scat to the, plaintiff by the Bristol and 
 Exeter Raihvay. The goods were sent by such railway by Avery, 
 addressed to the plaintiff, and were lost during their conveyance. It 
 was held by the Court of Exchequer that the plaintiff could not sue the 
 railway company, because the contract being verbal there had been 
 nothing to ratify the 17th section of the Statute of Frauds, the delivery 
 to the railway company being no delivery to the purchaser ; that the 
 property had therefore not passed, and Avery, not the plaintiff, was the 
 party to sue. Martin B. said, " I adhere to what I am reported to 
 have said in Hunt v. Hecht, that there is no acceptance unless the pur- 
 chaser has exercised his option, or has done something that has deprived 
 him of his option. There was nothing to prevent the vendee rejecting 
 the goods if they had been delivered to him on the ground that there 
 had been no contract to satisfy the 17th section of the Statute of 
 Frauds." 
 
 A curious point as to tvhnf constitutes an acceptance of seed arose in 
 ParJcer v. iVallis. The plaintiff, a farmer, made in June a verbal con- 
 tract with the defendants, at Bury market, for the sale of turnip-seed 
 exceeding £10. It was harvested and thrashed in July, and on the 
 24th of that month 20 sacks of it were sent to the defendants. Plaintiff 
 and one of the defendants again met at Bury market, and the latter 
 said he had just had a message that the seed was out of condition, 
 which the plaintiff denied. Soon afterwards the defendants wrote to 
 plaintiff, rejecting the seed, and in one of the letters informed him that 
 *' the 20 sacks which you authorised us to receive for you and lay out 
 thin, in consequence of its being hot and mouldy," would be returned.
 
 504 WHEAT STOPrED IN TrvAXSlTU. 
 
 On the trial the above Aicts beiiio; provoel by the plaint i AT, who gave 
 eviJencc that he did not request them to s[)read it out thin, and that 
 the seed was not hot and mouldy. Wigldman J. directed a nonsuit, 
 with leave to enter a verdict, if there w^as any evidence of an acceptance 
 of any part of the turnip-seed to satisfy the Statute of Frauds. It was 
 held by Lord Camphcll O.J. and Ei-Ie and Crompion J J. ; Wiijldman J. 
 tliss., that there being evidence to go to the jury that the seed was 
 spread out thin, neither because it was out of condition, nor by plaintiff's 
 authority, there was evidence that it was spread out thin as an act of 
 acceptance, and that therefore the nonsuit was wrong. Still as the 
 evidence was slight the Court merely directed a new trial, and did not 
 feel justified in entering a verdict for the plaintiff. But per ErU J. : 
 " If the seed was liot and mouldy, it would be a very proper thing to 
 spread it out thin and air it, so as to prevent it from perishing, I 
 should be very unwilling to say that if perishable property is delivered 
 out of condition, the vendee who rejects it must sutler it to perish or 
 take to it as owner." 
 
 In Kicliohon v. Bower, lulieat pvrcliascd hy smnple was consigned 
 fi-om Peterborough to Messrs. Pavitt, millers, at a railway station in 
 London. When it arrived on j\Iay 4 they received notice that it had 
 been warehoused at the company's warehouse, and entered in the com- 
 pany's books in their names. The company, as usual, allowed the 
 consignees to use the warehouse 14 days, without charge. On Saturday, 
 May 9, Messrs. Pavitt's carman brought a bulk sample to them from the 
 station, which they examined and found it equal to the sample, but said, 
 " JJoti't cart the ivheat to tJie mill at present.^^ That afternoon Messrs. 
 Pavitt found themselves in difficulties, and on the Monday morning 
 stopped payment. On that day they gave the vendor an order for the 
 wheat, which he took to the railway station. On a feigned issue to try 
 whether the wheat was the property of the assignees of Messrs. Pavitt or 
 the vendor, it was held by the Court of Queen's Bench that, allowing 
 the transitus was ended, there was no binding contract here without an 
 acceptance, and there was no valid acceptance of the wheat by Messrs. 
 Pavitt within sect. 17 of stat. 29 Car. II. c. 3. And scriihle per Lord 
 CampMI C.J., there was no valid stoppage in transitu, for the transitus 
 was ended. x\nd per Hill J., the question whether there has been an 
 acceptance of part or not, under the 17th section of the statute, is a 
 question as to the intention of the buyer to be manifested by outward 
 act : a jiart accei)tance is not sufficient always. And per Erie J., unless 
 the defendant could have sued the bankrupt in an action for goods sold 
 and delivered there was not an acceptance. 
 
 In order- to aatixfij the 17 Ih sectivn of the Statute of Frauds, on a sale
 
 EXTENSION OF STATUTE OF FRAUDS. 505 
 
 of goods for £10 or more, there, mud be either a writing or a part 'payment, 
 or a delivery and acceptance of the goods so sold. A contract for the sale 
 of goods at that price is within the 17th section, notwithstanding it 
 includes other matter to which that section does not apply {Harman v. 
 Reeve) ; and the bare acceptance by the vendee as owner is sufficient to 
 satisfy that section, although the vendee immediately after accepting 
 them states that he does so on terms diflerent from those on which the 
 vendor delivered them {Tomkinson \. Staigld). Andj^er Curiam: "In 
 an action for the price, the fact of the contract of sale having been 
 established by the acceptance, parol evidence of its terms is admis- 
 sible" {ib.). And so, where by an agreement in writing signed by the 
 party to be charged, something not expressed on the face of it is agreed 
 to be done, and what is to be done is included in another writing, parol 
 evidence may be admitted to show what the other witing is, so that the 
 two documents together may constitute a binding agreement within the 
 statute {Ridgway v. Wharton). 
 
 The Statute of Frauds was extended by 9 Geo. IV. c. 14, which was 
 framed to meet the difficulty which arose in Rondeau v. Wyatt, and the 
 cases which were decided on its authority. Section 7 of the latter 
 statute enacted that "The provisions of the Statute of Frauds shall 
 extend to all contracts for the sale of goods to the value of £10 or 
 upwards, notwithstanding the goods may be Intended to be delivered 
 at some future time, or may not at the time of such contract be actually 
 made, procured, or provided, or fit or ready for delivery, or some act 
 may be requisite for the making or completing thereof, or rendering 
 the same fit for delivery." And /vr Curimn : " The effect of such a 
 section is to substitute for the words 'for the price of £10 ' in the 17th 
 section of the Statute of Frauds, the words 'of the value of £10'" 
 (Harman v. Reeve). The effect of the netv statute was thus I'emarked 
 on by Martin B. in Gurr v. Scudds : " Reference has been made to 
 various decisions under the Statute of Frauds, and certainly great 
 efforts were formerly made to take cases out of the 17th section of 
 that Act. These cases remained the law, until it was amended by the 
 9 Geo. IV. c. 14, s. 7. According to the present law, however, if the 
 result of the agreement be that the seller transfers the article c(s goods 
 to the buyer, it is utterly immaterial whether the goods were existing 
 at the time of the agreement or not, and the case falls within the 
 exemption in the Stamp Act." 
 
 When a note or memorandum in writing is sufficient to satisfy the 
 Statute of Frauds was much considered in Richards v. Porter. The 
 plaintiffs sent to the defendant (January 25th) an invoice (in which the 
 parties were duly described as seller and purchaser) of five pockets of
 
 506 MEMORANDUM SUFFICIENT TO SATISFY STATUTE. 
 
 Lops, and delivered tlicm to a carrier to be conveyed to Derby. The 
 defendant on Febrnary 27tli wrote to the plaintiif— " The hops I 
 bought of you on the 23rd of January are not yet arrived. I received 
 the invoice : the last were longer on the road than they ought to have 
 been ; however, if they do not arrive in a few days I must get some 
 elsewhere." It was held by the Court of Queen's Bench that the 
 invoice and this letter, even taken together, did not constitute a note 
 in writing of the contract to satisfy the 17th section of the Statute of 
 Frauds. 
 
 In the case of Johnson v. Dodijson, the traveller of the plaintiff's, 
 hop-merchants in London, agreed with the defendant at Leeds for the 
 sale to him, by sample, of a quantity of hops. The defendant wrote in 
 his own book, which he kept, the following memorandum : — 
 
 "Leeds, 19th October, 1836, sold John Dodgson 27 pockets Playsted, 
 1836, Sussex at 103s., the bulk to answer the sample ; four 
 pockets Selme, Beckley's at 95s. ; samples and invoice to be sent 
 per Rockingham coach ; payment in bankers' at two months." 
 
 This was signed by the traveller on behalf of the plaintiffs, and on 
 the same day the defendant wrote the latter, requesting them to deliver 
 the hops to a third party. The bulk samples and invoice were sent to 
 the defendant by coach, pursuant to the contract ; but he returned them 
 as not answering to the samples by which he bought, but the jury fomid 
 that they did. It was contended for the defendant that there was no 
 suflRcient memorandum of the contract in writing to satisfy the Statute 
 of Frauds, the entry in the defendant's book not being signed by him, 
 and his subsequent letter not referring in sufficiently express terras to 
 the entry as that it might be connected with it ; but the Court of 
 Exchequer decided that the memorandum was sufficient. Parke B. said, 
 " The defendant's name was contained in it, in his own handwriting, 
 and it was signed by the plaintiff ; the point is in effect decided by 
 Saunchrson v. Jachson and ticlmeider v. Norris. There the bills of 
 parcels were held to be a suflicient memorandum in writing, it being 
 proved that they were recognized by being handed over to the other 
 party. Here the entry was written by the defendant himself, and 
 required by him to be signed by the plaintift"'s agent. That is amply 
 sufficient to show that he meant it to be a memorandum of contract 
 between the parties. If the question turned on the recognition by the 
 suVjsequcnt letter, I own I should have had considerable doubt whether 
 it referred sufficiently to the contract : it refers to the subject-matter, 
 but not to the specific contract. But it is unnecessary to give any
 
 CONTRACT TO GROW TURNIP SEED. 507 
 
 opinion upon that, because on the former point I think tliere is a 
 sufficient note in writing." 
 
 Ao-ain, in Waffs v. Friend, a verlal agreement between the plaintiff and 
 defendant, iliat the former shoidd furnish the latter with a quantify of 
 tirrnip-seed, which the defendant was to sow on his own land, and sell ayid 
 deliver the whole of the seed produced to the plaintiff at £1 Is. the Win- 
 chester bushel, was held by the Court of Queen's Bench to be within 
 the l7th section. It was substantially a contract for goods and chattels, 
 as the thing agreed to be delivered would at the time of delivery 
 be a personal chattel. The case therefore came within the above sec- 
 tion, and the contract being verbal only, and for goods of more than 
 £10 value, was not binding. And ^x^r Curiam: "It would indepen- 
 dently of that have been void by 5 Geo. IV. c. 74, which renders invalid 
 contracts of sale made by the Winchester bushel." The seed produced 
 was 240 bushels, and worth at that time not less than £1 10s. a bushel. 
 Upon this case the learned editors remark : " It would seem that the 
 case would not have been within the l7th section if the value of the 
 seed produced at the rate agreed for had been less than £10 ; and 
 therefore whether it would be within it or not, was uncertain at the 
 time when the agreement was made. Now it has been held that cases 
 depending upon contiugencies which may or may not happen within 
 the year, are not within the fourth section of the statute, even although 
 the event does not in fact happen within the year. It seems, therefore, 
 that the 17th section is in this respect to receive a different construction 
 from the 4th" {id).). 
 
 Where, as in Sari v. Bourdillon, the defendant ivent into the plaintiff's 
 shop, and agreed to purchase certain goods in the aggregate exceeding the 
 value of £10, and the several articles with their respective prices were 
 entered in the plaintiff's "order-book," 07t ths flgleaf at the leginning 
 of which ivere wrifteii the names of the plaintiffs ; and the defendant 
 wrote his name and address at the foot of the entry, for the purpose of 
 verifying the bargain — this was held by the Court of Common Pleas 
 to be a sufficient signature of the contract by loth j^arfies to satisfy the 
 17th section of the statute. Cresswell J. said, "The memorandum 
 stated all that was to be done by the person charged, viz., the defen- 
 dant ; and according to Egcrton v. Matthews that is sufficient to satisfy 
 the 17th section, though not to make a valid agreement in cases within 
 the 4th. Moreover, the difficulty which may arise as to the sufficiency 
 of the precise candlestick supplied to fulfil the contract, is not greater 
 than that of identity, which even in an agreement under the 4th section 
 may be left to parol evidence. Thus in Spicer v. Cooper it was held 
 that ^ Sold 14: pockets Kent hops at 100s.' might be explained to mean
 
 508 WHAT ACKNOWLEDGMENT TAKES DEBT OUT OE STATUTE. 
 
 100s. percwt. ; and it was not even argued that the apparent ambiguity 
 as to the price caused by the omission of any statement of the quantity 
 for which the 100.^. was to be paid, rendered the note or memorandum 
 insufficient to satisfy the 17th section." 
 
 A contract for tJie sale of shares in a mining company, conducted, upon 
 th-e cosf-hooJc principle, was held by the Court of Exchequer {Parlce B. 
 diss.) not to be one for the sale of land, or any interest in it within 
 section 4 of the Statute of Frauds ; but per Curiam, it is not a contract 
 for the sale of goods, wares, or merchandizes within section 17 of the 
 same statute {Watson v. Spratlcij). 
 
 The question as to what acliuowtcdgment ivill take a debt out of the 
 Statute of Limitations has been the subject of a very recent Exchequer 
 Chamber decision in Rackham v. Marriott. In this case the debtor, in 
 answer to an application for payment of a debt, wrote as follows : " I 
 do not wish to avail myself of the Statute of Limitations to refuse the 
 payment of the debt. I have not the means of payment, and must 
 crave a continuance of your indulgence. My situation as a clerk does 
 not afford me the means of laying by a shilling, but in time I may reap 
 the benefit of my services in augmentation of salary that may enable 
 me to propose some satisfactory arrangement. I am much obliged to 
 you for your forbearance." The Exchequer Chnmber, confirming the 
 judgment of the Court of Exchequer, decided that the letter contained 
 no sufiicient acknowledgment or jDromise to take the case out of the 
 statute. CocJcburn C.J. said : " Here the defendant merely expresses a 
 hope that circumstances will enable him, not to pay, but to propose a 
 satisfactory arrangement, and he says that he will not avail himself of 
 the statute. That does not amount to a promise to pay, but is rather 
 holding out an inducement to the plaintiff to let him alone, and trust to 
 his sense of honour. There is here an acknowledgment of a debt, but 
 not an acknowledgment coupled with a promise to pay either on demand 
 or at a future period which has elapsed, or on a condition which has 
 been fulfilled. An acknowledgment without a promise is not sufficient 
 to take a case out of the Statute of Limitations. Looking to the 
 current of authorities, and more especially to the last case, Smith v. 
 Thome, and being of opinion that the principle is applicable to the 
 present case, we think that the acknowledgment must amount to a 
 promise to pay either on request or at a future period, or on a condition. 
 Here there is a mere expression of hope to make some satisfiictory 
 arrangement, not an acknowledgment coupled with a promise to pay." 
 
 In Sidu'dl V. Mason the letter was as follows : " I have received your 
 bill. It does not specify sufficiently to which cottages the work is 
 done ; for instance (specifying some of the items), I do not know
 
 MEASURE OF DAMAGES FOR BREACH OF CONTRACT. 509 
 
 where all this is done, and I shall feel obliged if you will more particu- 
 larly explain. It is my wish to settle your account immediately, but 
 being at a distance I wish everything very explicit and correct. I have 
 asked H. to mark the agreements and send them to me, and I will 
 return them by the first post, with instructions to pay if correct." The 
 Court of Exchequer held that this was a sufficient acknowledgment to 
 take the case out of the Statute of Limitations ; and Pollock C.B. 
 observed, with respect to the Exchequer Chamber decision in Raclcham 
 V. 3Iarriott, that there was considerable doubt in the minds of several 
 members of the Court, whether the acknowledgment was not sufficient, 
 and that he considered it an extreme case. A\\(\.pcr Martin B. : " Rack- 
 ham V. Marriott and Hart v. Prendcrgast are cases where the acknow 
 ledgment was coupled with a hope, and not a promise to pay. It was 
 said that the amount of the debt must be ascertained ; but the contrary 
 doctrine is established in Waller v. Lacij, and other cases." 
 
 In the case of Alder v. KeighUy the Court of Exchequer laid it down 
 as a clear rule, " that Ike amounl ivhich would have heen received, if the 
 contract Jiad heen kept, is the measure of damages if the contract is Iroken:' 
 The rule was cited by the same Court in their judgment in Hadley v. 
 Baxcndale, in which they held that where two parties had made a con- 
 tract, which one of them has broken, the damages which the other 
 party ought to receive in respect of such breach of contract should be 
 such as may fairly and reasonably be considered either arising naturally 
 (/. e., according to the usual course of things, from such breach of con- 
 tract itself), or such as may reasonably be supposed to have been in the 
 contemplation of both parties at the time they made the contract as the 
 probable result of the breach of it. 
 
 The Court of Common Pleas decided in Portman v. Middlcton that 
 the correct rule of the recovery of damages is laid down in Hadleg v. 
 Baxendale, and therefore a party cannot recover as damages for a hreach 
 of contract, comjjensation which he has had to pccy for a breach of contract 
 by himself, consequent upon the nonfutfilment of the defendcmVs contract, 
 unless such compensation can reasonahly be supposed to be in the contem- 
 plation of the parties at the time they made the contract. There the 
 plaintiff contracted with one Sheaf to supply him with a fire-box for a 
 thrashing machine by a certain day, and then entered into a contract 
 with the defendant, by which he was to deliver one to him on a certain 
 day in order that he might perform his contract with Sheaf. The 
 defendant delivered an insufficient fire-box, and Sheaf brought an action 
 against the plaintiff, which was settled by him for £25 odd. The 
 plaintiff also gave £8 for a proper fire-box. In an action by the 
 plaintiff against the defendant for breach of the agreement, the jury
 
 510 CONTRACT TO DELIVER THRASHING MACHINE. 
 
 gave the plaintiff a verdict, and as damages they gave £12 for the price 
 of the fire-box paid by the pLaintiff to the defendant, £8 for the price of 
 a fire-box bought by the plaintiff instead of the insufficient one sup- 
 plied by the defendant, and £20 for the damages and costs which the 
 plaintiff had been obliged to pay to Sheaf. Upon a rule to reduce the 
 damages, it was held that as the damages and costs paid by the plaintiff 
 to Sheaf could not have been in contemplation of the parties at the time 
 of the contract, they could not be recovered from the defendant. And 
 pel' Curiam: "The action being brought to recover the sum of £12, 
 it would be a monstrous conclusion to arrive at, that the breach of the 
 contract for not furnishing the fire-box for £12 did give rise to the 
 additional damage of £20." 
 
 In Smeed v. Foord, which was cm action m a contract to setl and 
 deliver a thrashing macMne, the plaintiff' had inquired of the defendant, 
 who was also a farmer and an agent for the sale of thrashing machines, 
 when he could have a thrashing machine of a certain power delivered. 
 A correspondence took place, in which the defendant said he could let 
 the plaintiff have one in a month, and afterwards in three weeks, and 
 plaintiff" then wrote — " I will take a seven-horse engine, with the latest 
 improvements, if you can let me have it in three weeks ; " to which the 
 defendant replied that he would let plaintiff have the machine at the 
 time named. It was further intimated to defendant, that if the 
 machine was not delivered by the 14th of August, plaintiff would be 
 under the necessity of hiring one. The defendant did not deliver the 
 machine as promised, and the plaintiff, expecting from day to day from 
 defendant's promises that it would be delivered, abstained from hiring 
 one, when heavy rain coming his corn was damaged to a very consider- 
 able extent, and the jury had given him damages for deterioration in the 
 value of corn and straw, for expenses of carting and stacking, for ex- 
 penses of kiln-drying, and for loss in consequence of the fall in the 
 market price. 
 
 A rule nisi having been obtained to enter a nonsuit or to reduce the 
 damages, the verdict was ordered to stand for £300. And per Lord 
 Campbell C.J. : " Here was an express contract to deliver the machine 
 on the 14th of August ; it was not delivered on that day, and not 
 until long after, and the question is whether, under the circumstances, 
 the plaintiff is entitled to recover for the damage he has admittedly 
 sustained. We must refer to the case of Iladley v. Ba.rendate, where 
 the rule on this subject is correctly laid down ; and that rule is, that 
 the plaintiff' under such circumstances as these is entitled to recover 
 either such damages as may fairly and reasonably be considered as 
 arising naturally, and in tlie usual course of things, from sucli breach
 
 DELIVERING GOODS OF INFERIOR QUALITY. 511 
 
 of contract, or such as may reasonably be supposed to have been in 
 the contemplation of both the parties at the time they made the con- 
 tract, as the probable result of the breach of it. That is the principle 
 laid down by Pothier, the Code Napoleon, and Chancellor Kent, and 
 that is the abstract rule laid down in Hadleij v. Baxcndale. I do not 
 say how far it is supported by the facts of that case, but that rule is 
 laid down, and it is well laid down. Then are these losses naturally 
 arising out of the breach of the contract, or such as might have been 
 foreseen by the parties 1 The facts of this case clearly show that they 
 are. The damage dofie to the wheat and the cost of Idln-drying were the 
 natural consequence of the defendant's breach of contract, and the 
 proper measure of damages ; but the market price is variable, and it was 
 just as possible that it might have been higher as that it fell. I think, 
 therefore, on that head of damages the plaintiff is not entitled to 
 recover." 
 
 In the case of Fletcher v. TayUur the law as to the measure of damages 
 was thus laid down by WiUes J. : " It certainly is very desirable that 
 these matters should be based upon certain and intelligible principles, 
 and that the measure of damages for the breach of a contract for 
 the delivery of a chattel should be governed by a similar rule to that 
 which prevails in the case of a breach of contract for the payment of 
 money. No matter what the amount of inconvenience sustained by the 
 plaintiff in the case of nonpayment of money, the measure of damages 
 is the interest of the money only ; and it might be a convenient rule if, 
 as suggested by my lord, the measure of damages in such a case as this 
 was held by analogy to be the average profit made by the use of such a 
 chattel." 
 
 In an action for the breach of a contract by delivering goods of a 
 quality inferior to that contracted for, the proper measure of damages 
 is the difference between the value of goods of the quality contracted 
 for at the time of the delivery, and the value of the goods then actually 
 delivered, or their value as ascertained by a re-sale within a reasonable 
 time ; and the facts of the goods having been previously paid for 
 cannot be taken into consideration in estimating the damages {Loder 
 V. Kckule). 
 
 The purchaser of goods sold upon credit cannot maintain trover for them 
 icithout paying the price ; for though he acquires the right of property by 
 the purchase, he can only acquire the right of possession by the payment, 
 and in order to maintain trover he must have both {Bloxam v. Morley). 
 So where the plaintiff had agreed to buy sheep of the defendant, at Lewes 
 fair, and to take them away at a certain hour, but no earnest money 
 was paid, and no sheep delivered, and the sheep, in consequence of his
 
 512 WHEN TllOVER WILL LIE. 
 
 not kcepiug his appointment, were sold to another person, the operation 
 of the Statute of Frauds prevented the plaintiff from bringing trover [Alex- 
 ander V. Comhc). "What was sufficient evidence of a conversion io support 
 trover was much discussed on a bill of exceptions in Giles v. 7\fff Vale 
 Eailway Company, which was to recover quicks and plants from a rail- 
 way company. The plaintiff was a contractor ])lantirig hedges for de- 
 fendants at one of their stations, and was the owner of live thorn plants, 
 which had been by leave of one Fisher (called in the bill of exceptions 
 the general superintendent of the company) placed in a piece of ground 
 belonging to the defendants, and close to the station. Plaintiff de- 
 manded these thorns fi-om the station-master, and was refen-ed to 
 Fisher ; and Fisher, professing to act for the defendants, refused to let 
 the plaintiff remove them. Seven out of nine judges construed the bill 
 of exceptions as meaning that the thorns had been carried as merchandise 
 on the line, and left in the ground of the defendant with their roots co- 
 vered, as a mode of warehousing them, for a reasonable time, in such a 
 manner that they might remain alive; but they all held that Fisher 
 had authority to refuse, and therefore confirmed Wigliiman J.'s ruling 
 at the trial, that there was sufficient evidence of a conversion by the 
 defendants. 
 
 There is a difference between property awarded to he transferred by tlte 
 owner to another, atid property tvhich is actually transferred by the coti- 
 tract of the owner through the medium of his ayrnt ; and in the former 
 case, while the award is still unratified, trover cannot be brought. 
 Such was the case in Hunter v. Rice, where, under a submission to an 
 arbitrator of all matters in difference between landlord and tenant, the 
 arbitrator awarded, inter alia, that a stack of hay should be delivered 
 up by him to the landlord ])y a certain day, upon the tenant being paid 
 or allowed a certain sum in satisfaction. The question here was, 
 whether the property in the hay was transferred from one Sharpe, who 
 was tenant to Hunter, of certain land on which the hay was stacked, 
 bv force of an award, without the assent or delivery of Sharpe, to the 
 i)laintilf. Hunter brought an ejectment for waste, and the whole 
 matter was referred to an arbitrator, and the submission was made a 
 rule of Court. On a balance being struck, pursuant to the award, it 
 seemed that Hunter owed Sharpe £18, which sura was tendered and 
 refused. Sharpe also refused to quit or to execute the award, but was 
 evicted, and then placed in custody under an attachment for nonper- 
 formance of the award. Sharpc's wife sold the hay off the premises, 
 and the defendant was employed to carry it away. It was objected 
 that trover did not lie, there being no property in the plaintiff' nor 
 conversion by the defendant ; but the plaintiff v.as permitted to take a
 
 ORDER FOR DELIVERY ON THIRD PERSON. 513 
 
 verdict. The Court made a rule for a nonsuit absolute. Lord EUen- 
 horough C.J. said : "In the present case there is no other remedy for 
 the plaintiff but to proceed against Sharpe upon the award. If indeed 
 Sharpe had accepted the money tendered, that would have been a ratifi- 
 cation of the award, and an assent on his part to the transfer of the 
 property ; but without that I cannot conceive that the property was 
 transferred by the mere force of the award." 
 
 An order for delivery made hy the seller to the huycr of a rick of hay 
 on a third person, who has consented to let it remain on his land, is a 
 sufficient delivery as Mween such seller and buyer, tlis latter having 
 nndertahn to carry it away himself; and according to Salter v. Wool- 
 lams such third person is clearly liable in trover if he refuses permis- 
 sion to remove the hay, as on the sale the property in the hay passed to 
 the vendee, and if any accident occurred the loss would have fallen 
 upon him. 
 
 In the above case Messrs. J. and R. Aldridge distrained for rent on some 
 growing grass, which was subsequently made into two ricks of hay on 
 the premises, under 11 Geo. II. c. 19, s. 8, and the defendants as auc- 
 tioneers advertised the ricks for sale by auction in two lots ; the hay, by 
 the written consent of H. Jackson, the distrainee, to remain from the 
 day of the sale, July 24th, till the 28th of September. This memoran- 
 dum of consent was indorsed on the conditions of sale, and read by the 
 auctioneer at the commencement of the sale ; and the plaintiff bought 
 one of the ricks for £30, and paid the money. He went next week to 
 the premises to remove it, but was not allowed to do so. He accord- 
 ingly brought an action of assumpsit against the auctioneers. A ver- 
 dict was found for the plaintiff, both on non-assumpsit, and "that 
 the defendant did deliver to the plaintiff possession of the last-men- 
 tioned rick of hay " issues ; but the Court of Common Pleas made 
 the rule absolute for a non-suit, as the contract, on the part of the de- 
 fendants with the plaintiff, was merely that they would give him a ful 
 legal authority to remove, which they had fulfilled by procuring and in- 
 corporating into their articles of sale the written agreement from Jack- 
 son, who had attorned to the sale." 
 
 The measure of damages in trover where an offer to return the chattels 
 has been tnade after writ issued, is the value of the chattels at the time of 
 the conversion, and not the difference in their value between the time of 
 the conversion and the offer to return (Homer v. Mellars). 
 
 In Randall v. Roper, which was an action brought by a 'purchaser on a 
 breach of icarranty on a sale of goods, evidence given by sub-purchasers icho 
 had bought portions of the goods tvith a similar warranty, that they had 
 made claims against the purchaser for breach of warranty, is admissible.
 
 514 WAERANTY OF SEED BAKLEY. 
 
 as (lie natural and jirobaMc rcpnlt of tlic breach of the original contract, 
 and notwithstanding that none of the claims have been satisfied. This 
 action was for a breach of warranty on the sale of 30 quarters of Che- 
 valier seed barley. The plaintiff, the purchaser, had sold portions of 
 the barley, with the same warranty that he had received from several 
 Bub-purchasers, who had sown the barley, and suljsequently made claims 
 to the plaintiff for the damage they had severally sustained by the bad- 
 ness of the barley. At the trial before the under-sheriff of Esses, the 
 sub-purchasers gave evidence of the loss which they had sustained, and 
 the plaintiff obtained a verdict for £261 7s. Cd., while the damage 
 proved, independently of these witnesses, was £15. A rule to reduce 
 the damages to £15, on the ground that the contingent damages were 
 not the natural and probable result of tlie breach of the original con- 
 tract, and that the })laiutilf had sustained no actual loss on his re-sales, 
 because the proof only amounted to claims against him (the test of cer- 
 tainty in damages being whether they are liquidated or unliquidated, as 
 in this case, and not estimable by a jury), was refused by the Com-t of 
 Queen's Bench. 
 
 Erie J. said : " The question is, what amount of damages the plain- 
 tiffs are entitled to recover ? The defendant sold the barley as Chevalier 
 seed barley, and from such a contract the natural and ordinaiy conse- 
 quence would be that it would be sold as the same, and on being sown, 
 an inferior crop would come up. The natural amount of damages 
 would be the difference between the value of the inferior crop and of 
 that which would have come up if Chevalier seed barley had been sown, 
 which would have been within the decision in Haclley v. Baxendcdc. 
 Then it is said that the sub-purchasers have merely claimed the money 
 from the plaintiffs, but have not brought any action, and that non 
 constat, the claim may ever be enforced. But where a legal liability to 
 pay is incurred by a man, and a claim is made in respect of it, he can 
 recover the amount he is so liable to pay from the person by whose 
 l)reach of contract he has incurred the liability ; and for this purpose 
 there is no difference between a liquidated sum and a sum which is 
 unliquidated, but which he is liable to pay." 
 
 The question in BoUingliam v. Hmd was, U'liellicr in an action for 
 (joods sold and delivered, it is competent to the defendant to show that the 
 plaintiff has entered into contracts of a particular form, for the purpose of 
 convincing the jury that his contract with the plaintiff was in the same 
 form. In this case " rival guano " had been supplied to the defendant, 
 a fanner. The defence was that the guano in question was sold on the 
 condition that if it was not equal in quality to Peruvian guano the 
 defendant was not to pay for it. The price of the " rival guano " was
 
 JOINT OCCUPATION OF A. FARM. 515 
 
 £7 per ton, while that of tlie Peruvian was £\4, and the iinprobahiHty 
 of such a contract being made by tlie plaintiff was commented upon by 
 his counsel. The plaintiff was called, and in cross-examination was 
 asked, " Did you not sell portions of the ' rival guano ' to other parties 
 on the same terms ? " meaning the special agreement as to quality, 
 above referred to. Williams J., however, thought that such a question 
 might be put for the purj^ose only of testing the credit or memory of 
 the witness, and that it could not be offered as independent evidence for 
 the defence, that similar contracts to that insisted on had been made 
 with other parties. It was proposed to put similar questions to the 
 defendant, but the learned judge also refused his permission. A verdict 
 having been found for the plaintiff, the Court of Common Pleas refused 
 a rule for a new trial, on the ground of improper rejection of evidence, 
 and considered the case of Reg. v. Egorton quite distinguishable. And 
 per ByJcs J. : " It may be that the plaintiff might have been asked 
 whether he had ever made such contracts before, by way of testing his 
 memory or credit. But as evidence offered by the defendant, it was 
 totally inadmissible, and to hold otherwise would be contrary to every 
 principle and to universal practice " {ih.). 
 
 A joint interest and occiqxitioji of a farm ty two persons is not a part- 
 nership, so as to convey to each an implied authority to lind the oilier, hj 
 the acceptance of hills of exchange, for payments in respect of the farm 
 {Grecnslade v. Doicer). And where, as in Wisli v. Small, the plaintiff 
 purchased two bullocks, and put them to feed on the lands of one Woof, 
 on an agreement that the profit above £20 to be made by the re-sale 
 after they had been fatted should be divided equally between the 
 plaintiff and Woof ; and it was objected in an action for the price, that 
 Woof should have been joined in the action ; Thompson B. thought that 
 he and Wish were merely partners in the profits, and that this was a 
 mode of paying Woof for the pasture, and the Court of Queen's Bench 
 refused a rule for a nonsuit. 
 
 Under stat. 17 & 18 Vict. c. 36, s. 1, a lill of sale is void against 
 creditors unless a description of the residence and occufpaiion of the person 
 granting it he filed along tvith the hill of sale. It is not sufficient that 
 the bill of sale which is filed itself contains a description of his residence 
 and occupation {Helton v. English). The same statute requires that the 
 description of tlie residence and occupation of the attesting witness to a bill 
 of sale shall be given, though the bill of sale be not made by a person 
 in execution {Tuton v. Se^ioria). The defect of registration under the 
 Bills of Sales Act does not avoid a bill of sale as between the parties. 
 Where a bill of sale assigned certain horses as a security, and also such 
 other horses as might be substituted for them in the business of the
 
 516 ASSIGNMENT OF GEOWING CROPS. 
 
 assig'nor, provided the names and descri])tions of such snl)stituted horses 
 were indorsed, it was held by Coleridge J. that the indorsements did not 
 reqnire an additional stamp, being only for the purpose of identification. 
 The sou of the assignor claiming them, all the circumstances were left 
 to the jury on the question of property, although the son swore he had 
 purcliased them, the business appearing to have been the assignor's 
 (Barker v. Asfoii). It was ruled by Williams J. that the Bills of Sales 
 Act only renders bills of sale void for defect of registration, not as between 
 tlie parties, but as against creditors {Hills v. SJieppard). 
 
 An assi/jnment by bill of sale, as security for a debt (due for money lent 
 and work done as an attorney) to an attorney from his client, of the 
 subject matter of a suit, during its pendency, in this case an unexpired 
 term in a farm, together with the crops growing on it, is not void on 
 the ground of champerty {Anderson v. Raiclijfe and Walker). When on 
 the face of an assignment of fersonalty it is plain that it was intended to 
 operate as a continuing security, and to apply to property afterwards 
 acquired, and substituted for that which was originally assigned, it will, 
 if the words are capable of such a construction, be so applied. And 
 where in such a case the deed was found capable of such a construction, 
 although rather in the indirect form of a power of attorney, than in the 
 way of direct conveyance, it was construed to extend to stock and growing 
 crops on a farm not occupied by the assignor at the time of the execution 
 of the deed {Allott (Exor.) v. Carr and Scholfield). 
 
 The testator in Quayle v. Davidson, devised a farm to his wife, and 
 after her death to D., " in trust for JJ.'s son being brought i/p to work the 
 farm," provided if D. have no male issue, then to other persons. D. 
 iiad no child at the date of the will, but after the testator's death had a 
 son. It was held by the judicial committee of the Privy Council, that 
 D.'s son did not take any beneficial interest under the will, the words 
 " in trust for D.'s son being brought up, &c.," being a mere recom- 
 mendation or expression of hope or confidence ; but qucere if D.'s son 
 had been born before the date of the will whether he would have taken 
 nn interest. 
 
 A tenant farmer bequeathed his household goods, &c., " together 
 with all his live and dead farming stock, implements, and all other his 
 liouseliold and farming effects," to his wife for life, or so long as she 
 should continue his widow. Tie directed also that after his decease 
 an inventory should be taken of his said personal estate, but he gave 
 no direction as to any valuation being made. After his death an in- 
 ventory of his personal estate generally was made for the purpose of 
 the prr)bafce duty, Init no inventory was signed as directed by the will. 
 The widow married again, and the legatees in remainder claimed that
 
 OMISSION OF STATEMENT IN INSURANCE POLICY. 517 
 
 the widow and her husband may be charged witli the value of the fol- 
 lowing articles included in the inventory : growing turnips, fallows, 
 labour, seeds, and manure, wlieat, &c., oxen, sheep, and pigs, some of 
 which the tenant was bound to consume on the premises, and others 
 not. It was held that, as the testator had not directed a valuation, the 
 legatees in remainder could not call for an account of farming effects 
 of a consumable nature specifically bequeathed, which had been actually 
 consumed by the tenant for life in the ordinary course of husbandry 
 {Bryant v. Easterson). 
 
 In the case oi Shaw v. Rohbcrds, the TplahitiS insured jjremises against 
 fire hy the dcscj'iption of a granary, &c., and " a Jcil/i for drying corn in 
 use " communicating therewith. By the third condition of iusurance 
 the policy was to be forfeited, unless the buildings were accurately 
 described, and the trades carried on therein specified ; and by the sixth, 
 if any alteration were made in the building or covering, or the risk of 
 fire increased, the alteration, &c., was to be notified and allowed by in- 
 dorsement on the policy, otherwise the insurance to be void. The 
 plaintiff carried on no trade in the kiln except drying corn ; but in 
 1832 the bark from a vessel which had sunk near Lynn was dried 
 gratuitously, and no notice was given. No greater fire was made ; 
 but in the course of drying, the bark in the kiln took fire, and the 
 other premises were burnt down. The jury found that drying larh 
 was a distinct trade from drying corn, and more hazardous, and that 
 insurance offices charge a higher premium for a bark kiln, and a rule 
 was made absolute to enter a verdict for the plaintiff. 
 
 Omission of statement in fire insurance jjolicy. — A fire insurance policy 
 contained a condition that it should be void " unless the nature and 
 material structure of the buildings and property insured, and of all build- 
 ings which contain any part of the property insured, be fully and 
 accurately described, and unless the trades carried on in such buildings 
 be correctly shown, or if any alteration or addition be made in or to 
 any buildings insured or in which any insured property be contained 
 by which the risk of fire is increased." The policy stated that a steam 
 engine was erected on the premises, which was used for the purpose 
 of raising goods ; machinery had also been erected for grinding corn 
 for horses, which was driven by the engine, and the Court of Ex- 
 chequer held that the omission to state this fact, did not violate the 
 condition {Baxendale v, llardingltam). 
 
 The taw of the market was thus laid down by the Court of King's 
 Bench in the Mayor of Northanqiton v. Ward : " By law every man 
 has, of common right, a liberty of coming into any public market to 
 buy and sell without paying any toll, if it be not due by custom or
 
 518 LAW OF THE MARKET. 
 
 prescription ; but if he requires any particular easement or convenience, 
 as a stall in the market, he must have the licence of the owner of the 
 soil for that purpose, if there be no particular sum fixed by the custom 
 of the mai-ket for stallage. If there be a fixed sum or duty by custom, 
 that cannot be exceeded, but still he must agree with the owner of the 
 soil." And it was held in Tlie Mayor of Newjiort y. Saunders, that 
 assumpsit may be maintained by the owner of a market for stallage, 
 as for use and occupation of premises, and that without showing any 
 contract, in fact, between him and the occupier of the stall. And inr 
 Lord Tenterdcn C.J. : " Tolls may be recovered in assumpsit, and no 
 proof is required of anything like a contract by the piirty against whom 
 tlie claim is made. Evidence is given of the right to receive them, and 
 that is always deemed sufficient. Stallage is not distinguishable from tolls 
 in that respect. The party entitled to stallage may waive the tort." 
 
 A person who exposes goods for sale in a puMic marJcet has a right to 
 occupy the soil with lasMs necessary and proper for containing the 
 goods (Townend v. Woodruff); and ^w Alderson B. : "Erecting a 
 stall is very different from placing goods in baskets on the ground for 
 sale " {ih.) But if any one is refused at a fair or market the accom- 
 modation to which he is entitled, a court of equity cannot interfere by 
 injunction ( Weale v. West lliddlesex Water WorJcs). Blakey v. Dins- 
 dale seems to establish that, in order to maintain an action for setting 
 goods near to, hit out of the limits of the marJcet, it is incumbent on 
 the plaintiff to prove that the defendant did so fravdulentlg, in order 
 to avoid the toll ; and the distress of goods thus fraudulently sold was 
 illegal. But the proprietor of a market cannot bring an action for toll 
 against a person who sells out of the limits, unless he shows that he 
 first apprised him that there was room in the market, to which he 
 might resort. 
 
 This was the substance of the decision of the Court of Queen's Bench, 
 in the celebrated Covent-garden case of Prince v. Lewis. 
 
 King Charles II., by letters patent, granted to William Earl of Bed- 
 ford, his heirs and assigns, leave to hold a market within specified 
 limits within the parish of St. Paul's, Covent-garden, on every day in 
 the week (except Sunday and the Feast of Nativity) for the buying 
 and selling of all kinds of fruits, flowers, I'oots, and herbs whatsoever. 
 By 53 Geo. III. c. 71, reciting these letters patent, &c., the owners of 
 the market were authorized to take from the seller the tolls then usually 
 taken or collected within the market. The plaintiffs were the lessees 
 of the market under the Duke of Bedford, and tlie defendant resided 
 in James-street, about 70 or 80 yards without the limits of the market. 
 Between the hours of six and eight on the 4th of January, 1825, a
 
 FRAUD ON LESSEE OF MARKET. 519 
 
 waggon loaded with greens was drawn up before his door, and he sold 
 them tliere. There was evidence to show that during some part of 
 the time he was selling there was room in the market for his cart ; but 
 the plaintiffs did not apprise him of the fact, when they demanded toll. 
 It appeared that part of the space in the market was let out to yearly 
 tenants for the sale of different articles, not being fruits, flowers, or 
 vegetables, and that in fact there were china shops, old iron shops, and 
 some public-houses — in short, two-thirds of the market was occupied 
 with covered buildings. Tolls had frequently been collected in James- 
 street ; and in consequence of so much of the market-place being 
 appropriated to otber purposes, the remaining space was on ordinary 
 occasions fully occupied. Ahhofi C.J. (without adverting to the fact 
 that during part of the time while the defendant was selling his vege- 
 tables there was room for his cart in the market) was of opinion that 
 the lessees of the market were not entitled to maintain this action 
 unless they gave up the whole space for the use of those who attended 
 the market from day to day to sell those commodities to the sale of 
 which the market was devoted. The i^laintiffs were non-suited, with 
 liberty reserved to move to enter a verdict ; but the Court of Queen's 
 Bench discharged the rule. As it was proved that the market was 
 generally occupied, they held that it lay upon the plaintiffs to show 
 that the defendant knew that on the morning in question there was 
 space for his cart in it, and that they had given notice to him to that 
 effect. 
 
 A marlcet ivJikh had existed de facto for more than twenty years, and 
 for which tolls had been taken as for a legal market, but which the 
 jury found had no legal origin, is not a market " legally established " 
 within the 50 Geo. Til. c. 41, s. 5, and a hawker trading therein with- 
 out a licence may be arrested and taken before a magistrate {Benjamin 
 V. Andrews). To avoid the penalty the market must be one created by 
 grant, and not merely a market de facto (ib.). 
 
 The circumstances ivhirh constitute a fraud on the lessee of a market 
 were illustrated in Bridyland v. Shaiitcr. Here the plaintiffs were 
 the lessees of Sir John St. Aubyn, of a market called Devonport 
 Market, within the borough of Devonport, under a written agreement 
 not under seal. The defendant, a cattle-jobber at Ugborough, had on 
 several market-days brought sheep to the premises of a public-house 
 40 yards beyond the limits of the market, where he left them while he 
 went into the market in search of customers, whom he brought back 
 to the public-house, and there bargained with them for the Sale of the 
 sheep, and refused to pay any tolls in respect of such sales. By a 
 private act the market was enlarged into one for cattle, &c, ; and Sir
 
 5?.0 RETURNS OF SALES OF CORN. 
 
 John St. Aubyn was empowered to let the erections, buildings, &c., on 
 the ground whereon the market should be held, and to demand and 
 take certain tolls of and from any person or persons bringing any 
 goods or articles to the market. There was also a clause providing that 
 if the owner sliould demise or lease the market or the site thereof, the 
 lessee should be subject to such exceptions or restrictions as might be 
 expressly contained in the lease, and take and enjoy the rent and tolls 
 authorised to be taken by the act, as the owner would be entitled to do 
 if the lease had not been made. At the trial it was contended for 
 the defendant that the market, being an incorporeal hereditament, 
 could only be leased by deed ; and that the defendant had not been 
 guilty of any disturbance of the market for which he was liable in 
 tliis action, the right to toll l^eing only in respect of articles brought 
 to the market, Gurneij B. overruled these objections, and a verdict was 
 found for the plaintiff with nominal damages, leave being reserved to 
 the defendant to move to enter a nonsuit or a verdict in his favour. 
 The Court of Exchequer discharged the rule, and held that the lessee 
 of tlie market under a parol demise had a right to take tolls, and that 
 this was a ft-aud on the market, for which case would lie by the lessee 
 of the market. 
 
 In Smith v. Hudson the defendant, a farmer in Norfolk, sold John 
 AYillden 48i qrs, barley to be delivered to Willden's order on the 
 Great Eastern Railway : the barley was duly delivered at Swaffham 
 Station on the 7th November, 1863. Willden became bankrupt on the 
 9th November, and on the 11th November, and before the bankrupt 
 had given any directions about the corn, the defendant gave a verbal 
 notice to the station master at Swaffham not to deliver the corn into 
 the possession of the bankrupt or his assignees or any other person 
 witliout defendant's consent in writing, but to deliver the same to him 
 or his order, and subsequently on the same day gave a written notice to 
 _ the station master to the same eflFect. At the time these notices were 
 given, the corn was still on the platform of the goods shed at the station. 
 The Ijankrupt had given no order respecting it, nor had he examined 
 the bulk to see whether it corresponded with the sample, nor had he 
 given notice to the defendant whether he declined or accepted tlie corn. 
 It was held by the court that the plaintiflPs, the assignees in bankruptcy, 
 were not entitled to the corn, 34 L. J. (N. S.) Q. B. 145. 
 
 Returns of sales of corn, under 1 & 2 Geo. IV. c. 87, are not conclusive 
 evidence, if evidence at all, to show the parties to whom the corn was 
 delivered ; for it is no part of the duty of a corn-factor to mention this 
 in the vci\xrry'{WoodUy v. Brown). It was enacted by 22 Car. II. c. 8, 
 s. 2, that no one should sell corn excejjt hy the eiyht-gallon Winchester
 
 DIFFERENT MEASURES OF CORN". 521 
 
 measure ; and semhle, since 5 Geo. IV. c. 74, an agreement to sell by 
 the Winchester bushel, not containing any declaration of the proportion 
 which that measure bears to the imperial bushel, is void {Wafls v. 
 Friend). By this act the imperial standard bushel of eight gallons or 
 80lbs. avoirdupois was substituted. For heaped measure (potatoes, 
 lime, and fruit, &c.) the same standard was adopted for the bushel, with 
 the proviso that the bottom of the vessel should be plain and even, and 
 19| inches from outside to outside. "In Mark Lane, however, wheat 
 (taking it only as an illustration, though as great a diversity exists as 
 to barley and other products) is nominally sold by the contents of the 
 imperial bushel without reference to weight. Measure is in fact found 
 to be so much affected by quality and other circumstances that practi- 
 cally an average estimate of the weight of the imperial bushel has been 
 formed, and 62lbs. is generally taken as equal to and representing the 
 imperial bushel. 
 
 " In the markets of Birmingham, Warwick, Walsall, Stratford, Al- 
 cester, Worcester, Evesham, Kidderminster, Bromsgrove, Gloucester, 
 Tewkesbury, Hereford, Ledbury, and generally through the counties 
 of Warwick, Worcester, Gloucester, and Hereford, wheat is sold by the 
 bushel of 62lbs. ; whilst at Monmouth, Abergavenny, and in Mon- 
 mouthshire generally, it is sold by the bushel of 80lbs. At Nantwich, 
 Shrewsbury, Market Drayton, and Wellington, it is sold by the bushel 
 of 751bs. In Wolverhampton and Stafford 721bs. is reckoned to the 
 bushel. In Manchester English wheat is sold by the bushel of GOlbs., 
 and American wheat by the bushel of 70lbs. At Liverpool, Bideford, 
 and Torrington, a bushel of wheat means 701bs. ; at Aberystwith, 
 65lbs. ; at Carmarthen and Haverfordwest, 64lbs. ; at Hull and Boston, 
 and Lincolnshire generally, 63lbs. ; and at Wakefield, Doncaster, and 
 Leeds, GOlbs. At Aylesbury, Cirencester, Dorking, Farnham, Petworth, 
 Uxbridge, Midhurst, Oxford, Eobert's Bridge, Chichester, Biighton, 
 Linfield, and East Grinstead, wheat is sold by the load of five quarters ; 
 at Hitchin, by the load of five bushels ; at Pontefract, by the load of 
 three, and at Bedford by the load of five bushels. At Ulverstone wheat 
 is sold by the load of 144 quarts; at Bridgnorth, by the bag of 11 
 scores ; at Much Wenlock, by the bag of 1 1 scores and 41bs. ; at Lud- 
 low, by the bag of 11 scores and lOlbs. ; at Leominster, by the bag of 
 12 scores ; at Whitehaven, by weight of 14 stone ; at Nottingham and 
 Grantham, at 36 stone ; at IMalton and at Scarborough, by the weight 
 of 40 stone ; at Swansea, by the sack of three busliels ; at Barnard 
 Castle, Darlington, and Morpeth, by the boll ; at Beccles, by the coomb ; 
 at Preston and Garstang, by the windle of 2201bs. ; at Denbigh, by the 
 hobbett of 168lbs.
 
 5-2;2 SALE BY THE HOBBETT. 
 
 In Suffolk nearly all strain is sold by tlic cooniL of 4 bushels, and in 
 Cambridf^osliirc by the quarter of 8 bushels. These are but samples of 
 the universal confusion on the subject, the custom, however, of selling 
 all grain by weight is vastly on the increase, and will probably become 
 general, the standard weights per imperial bushel being, for wheat, G3lbs. ; 
 for barley, 56lbs. ; and for oats, 42lbs. 
 
 Stat. 5 & 6 Will IV., c. 63, s. 6, ahoUshes all " local or cKstomary 
 measures, and imposes a penalty on every person who shall sell Iry any 
 denomination, or measure other than one of the imperial measures, or some 
 multiple or aliquot piart thereof." But it was held by the Court of Queen's 
 Bench in Hughes v. Humphrey that this applies only to sale by measure 
 of capacity, and not to sale by weight estimated in pounds ; and that, 
 therefore, it does not extend to sale by any local term designating a 
 given number of pounds weight. 
 
 Hughes v. Humphreys was a case of sale hy the hohhrtt, wdiich is a 
 measure of the Llanrwst market, and contains four AVelsh pecks, each 
 of them 42lbs. in weight ; it therefore contains lG8lbs. ; while an ordi- 
 nary sack contains six Welsh pecks, or 2521bs. The sale was made 
 by sample, at Pthyl, in Flintshire, at so much per hobbett, and the 
 wheat was delivered in sacks of the ordinary kind. Williams J. directed 
 a verdict to be entered for the defendant on the third issue under 5 & 6 
 Will. lY., c. 63, and the Court of Queen's Bench ordered it to be 
 entered for the plaintiff. And per Lord CampMl C.J. : " If this was 
 really a sale by measure of capacity it would be contrary to the Act, 
 And the question therefore comes to be, "Was it a sale by measure or a 
 sale by weight in pounds ? Now, according to the evidence, when you 
 buy by hobbett you buy not dimensions but avoirdupois pounds, and 
 the contract is not fulfilled unless that weight is made ; it is therefore 
 a sale of so many times IGSlbs., which is a sale by weight, and no in- 
 fringement of the statute 5 & 6 Will. IV., c. 63, or of any other act." 
 Erie J. observed : ** It is clearly a sale by the pound, the hobbett being 
 a given multiple of a pound." 
 
 In Owens v. Denton a sale by the hobbett was held ihegal, it being 
 there assumed that the hobbett was a measure of capacity. And so 
 in Tyson v. Thomas it was held that an action could not le maintained 
 vpon a contract to sell hy the holbett, it appearing on the evidence that 
 a holbett consisted cf four pieclcs of 21 legal quarts each, and not, as in 
 Hughes v. Humphreys, a certain weight estimated in pounds. And p)er 
 Lord Kemjon, C.J., in Chenie v. Watson: "The contents of measures 
 can only he jyroved hy production in open Court." It was in evidence 
 there, that the round strike pressed the corn down, and left more in 
 the bushel than the flat strike. The provisions of 36 Geo. III., c. 88,
 
 SALE OF CORN BY SAMPLE. 523 
 
 ss. 2 & 3, whicli require the butter-packing vessel to be branded under 
 a penalty with the name or the names in full of the cooper and seller, 
 the exact weight or tare thereof, indirectly prohibits any sale of Ijutter 
 in vessels not properly marked, and therefore the contract of sale for a 
 number of firkins of butter not so marked is void, and the plaintiff can- 
 not recover, and the clause may be used against him as a defence to an 
 action. The Court of Queen's Bench in Foster v. Taylor directed a non- 
 suit, and said that it was rightly held at the trial that the onus lay at 
 all events on the defendant to prove that the plaintiff had not complied 
 with the statute. 
 
 And scmbJe by the Court of Exchequer Chamber that the 15th section 
 of 5 Geo. IV., c. 74, is not repealed by 5 & 6 Will. IV., c. 53, and con- 
 sequently that contracts by local weight may be lawfully made if the 
 proportion to the standard is expressed ; though it is otherwise with 
 respect to measures, all local measures being abolished by 5 & 6 Will. IV., 
 c. 63, s. 6 {Giles v. Jones). 
 
 The seller of corn hij samjyle in a marlcet is henefited hij the marJcct, 
 as well as the seller of corn which is pitched there in hulk and sold ,- 
 and if he refuses to pay the same toll which is paid by the seller of 
 corn in bulk, an action on the case lies against him for the injury done 
 to the market in selling by sample (The Bailiffs of Teivlceshury v. Brick- 
 nail). Where a toll had been customarily taken ly the collector putting 
 his liand into the sack and lifting out a handful, and placing it in a howl 
 held near the mouth of the sack, and that functionary varied fi'om his 
 ordinary mode by sweeping instead of lifting such toll, it was held, by 
 the Court of King's Bench in Norman v. Bell, that trover lay against 
 him for the excess. It is now provided by 5 Geo. IV., c. 74, s. 9, that 
 where articles are sold by stricken, not heaped measure, " they shall be 
 stricken with a round stick or roller, straight, and of the same diameter 
 from end to end." 
 
 By 19 & 20 Vkt., c. 114, s. 1, no water, scmd, earth, or other mcdter is 
 to he put into a hundle or truss of hay or straw intended for sale ivithin 
 the cities of London and Westminster or within 30 miles thereof, to in- 
 crease the weight, under a penalty not exceeding £10. By section 2, 
 salesmen, &c., are to furnish the buyers with a ticket stating the number 
 of trusses sold, and the name and address of the owner. This Act and 
 36 Geo. III., c. 88, are to be construed together. 
 
 An assignment for the benefit of creditors hy a trader and farmer, of all 
 her ^^ effects, stock, hooks and hook debts,'' conveys the cattle on the farm 
 {Lewis V. Rogers, Exor.). A farmer who is in the habit of huging half 
 as many more si/rep as was necessary to stock his farm, and of sellino- 
 the surplus at a profit, is a trader within the bankrupt laws as a sheep-
 
 52-4 DEFINITION OF TRADER. 
 
 salesman {E.r parte Xnrall). x\ud so if he huijs horses unfit for farming, 
 and resells them, and avows his intention to take ont a licence, and 
 become a horse-dealer, these facts were held in Wriijht v. Bird to be 
 evidence of trading. A colonel of a regiment who sells horses occasion- 
 aUij at TattersalTs {Ex parte BlarJcmore), or a person who Jceeps hounds, 
 huijing dead horses and selling the skins and hones (Summerseit v. 
 Jarvis), are not liable as traders. But a farmer tnah'ng lime from a 
 lime-pit, opened and worked before the commencement of his term, 
 and selling the surplus beyond what he required for manure, is not 
 a trader witliin the bankrupt laws {Ex parte Ridge). And so where 
 the defendant in Patten v. Gould lought sixtg pigs in the course of the 
 gear, fed them on his stuMles, and resold some at the end of a week ; 
 and also bought 200 busliels of ray grass to sell, which he mixed with 
 seed he raised on the farm, and resold at a profit — it was held that 
 neither of these acts made him a "trader" within the scoi^e of the bank- 
 ruptcy laws. Borrovgh J. observed, that in a year like 181 G, when so 
 much wheat was beaten down with rain and tempest, it was most profit- 
 able to stock a farm with pigs. 
 
 The authorities on the subject were much considered in Bell and 
 Anor., Assignees, v. Young. The case stated by the arbitrator for the 
 opinion of the Court of Common Pleas found that H. M. Hairland, a 
 farmer, who was under covenant with his landlord " to consume the 
 whole of the turnips and other roots upon the premises," kept cows as 
 part of his stock on the farm, in order tliat he migld sell milk thromjh 
 his man at the neighlouring toivn, to chance and regidar customers, hesides 
 malcing hitter for sale of the surplus ynilk, and that his keeping cows to 
 this extent was a good, proper, and husbandlike way of managing the 
 farm as he did, and that cows in fact were the most profitable stock he 
 could keep. The Court held that he was clearly not a cowkeeper within 
 the meaning of the Bankrupt Act, 12 & 13 Vict, c. 106, s. 65. Their 
 decision was governed by Ex parte Bering, where a farmer in the Isle of 
 Thanet occupying two farms (a considerable portion of which was sown 
 with canaryseed, the manure for which was all purchased), containing 
 together 200 acres, and bound to fodder his straw and green crops on 
 tliem, kept five cows, four of which were Alderneys, and seven horses, 
 and no other stock ; and it was held tliat his selling the milk of the 
 cows regularly to a retail dealer in Margate, who paid for it on an average 
 30.S. a-week, did not render him subject to the bankrupt laws as a cow- 
 keeper. Ex parte Hammond was similar in principle to the above. Here 
 a tenant of 130 acres under a farming lease, which obliged him tofcdlow 
 or plant with peas or potatoes (among other things) everg third gear, had 
 on his farm 12 acres of young potatoes, and 20 acres of green peas.
 
 SELLING HORSES WITHIN LIMITS OF MARKET. 525 
 
 growing in open fields every year, and consigned the produce for table 
 consumption to London salesmen, to whom he allowed such commission 
 as was usually allowed by market gardeners ; and it was held that he 
 was not a market gardener within the 5 & 6 Vict., c. 122, s. 10. And 
 see 12 & 13 Vict., c. 106, s. 144, as to oion-liahiUfy of Imnkrupt for rent 
 accruing after issuing of fiat or filing of petition of adjudication of 
 bankruptcy against him. 
 
 Owner of marlcet liable for nuisance from the droppings. — The owner 
 of a market allowed sheep to be penned there, and he found the 
 hurdles for the pens, and derived a profit in addition from the toll on 
 the sheep, whose droppings created a nuisance on the part where they 
 were penned. It was held by the Court of Common Pleas that the 
 appellant, the owner of the market, was liable to an order for the re- 
 moval of the nuisance under section 12 of the Nuisances Eemoval Act 
 (18 & 19 Vict. s. 121), as being the person within the meaning of that 
 section, " by whose act, default, permission, or sufferance " the nuisance 
 arose. 
 
 Cattle fair ?iot to he held on piece of ground put hy for recreation by 
 Gorporaiion. — Where by an Act of Parliament a corporation were 
 directed to cause a piece of land to be drained and levelled, and kept 
 in proper condition for purposes of public recreation, the Court re- 
 strained the corporation by injunction from permitting a cattle fair 
 to be held on such piece of ground. {Attorney General v. Corporation 
 of So uthampton. ) 
 
 Selling horse tvithin limits of marlcet.— ^j a local act for establish- 
 ing a market, power was given to the proprietors of the market to take 
 tolls on horses brought into the market place ; and by one of its 
 clauses it was enacted that every person who should sell at any place 
 within the hmits of the act (other than in the market-place, or in his 
 own dwelling-house, or in any shop attached to or being part of any 
 dwelling-house) any article in respect of which tolls were by the act 
 authorised to be taken, other than eggs, butter, and fruits, should for- 
 feit a sum not exceeding 40s., provided that nothing therein should 
 restrain any person from crying or selling from door to door within the 
 limits of the act any such article as aforesaid, provided such person 
 should have first paid for such articles the regular market tolls, and 
 provided such articles should first have been brought into the market 
 for inspection there. It was held that a horse was an article within 
 the meaning of such clause, and that a sale of horses within the limits 
 of the act by a licensed auctioneer in a yard which formed part of the 
 dwelling-house and premises of a third person subjected the auctioneer 
 to a penalty of 40^., the place of sale not being within the exception
 
 526 WAHEANTY OF SEED. 
 
 contained in such clause {Lltntdaff and Canlon Dit^lrirl AfarM, Company 
 appts. y. Li/tulon resp.) 
 
 Warrant iiuj i urn q) seed to he rai)e seed. — An action by seed merchant 
 lies against seed brokers for falsely warranting turnip seed to be rape 
 seed, although it was sold by sample, and was of greater value than 
 turnip seed, the phiintiff having sustained actual loss and injury in his 
 business, fi-om having resold it as rape seed, and having to compensate 
 his customers. {Lovcgrove v. Fisher.) 
 
 Warraniij of seed. — In Plnder appt. v. Button resp., the action was 
 for damages sustained by the appellant having contracted to sell to the 
 respondent a quantity of mangold-wurzel seed warranted to be of good 
 growing stock, and having delivered seed not according to such war- 
 ranty. Tlie memorandum signed by appellant was merely, " Sold Mr. 
 Button half a ton of yellow mangold wurzcl seed, at 9d. a lb., for the 
 latter end of the year." Kespondent was allowed to give parol evi- 
 dence that appellant said the seed was to be sown by himself, and be of 
 " good growing stock." Several of respondent's customers were called 
 to prove that the seed was " unproductive and worth nothing," and 
 there was some evidence, although the appellant denied it, that the 
 seed when delivered by the appellant was kiln-dried, and therefore in- 
 jured. It was admitted that the season of 1860, when the bargain was 
 made, was very wet and unfavourable, and also that there was no 
 i'raud. For the appellant, it was contended that there was no war- 
 ranty, and no evidence of the quality or unproductiveness of the seed. 
 The learned judge of the Lincoln County Court ruled "that there 
 was necessarily an implied warranty that the seed would grow," and 
 gave a £50 verdict for the respondent ; and The Court of Queen's 
 Bench gave judgment for the appellant. And j;e?- Coclclurn C.J. ; "It 
 does not appear that the seed delivered was dead or bad, or had wholly 
 lost its character as seed, but only that it had a defective germinative 
 or reproductive power. We are not called on to decide whether on a 
 general contract for seed there is an implied warranty that it is growing 
 seed. This is not such a contract ; it is a special contract for such seed 
 as the appellant should raise from seed ' of a good growing stock.' It is 
 not denied that the seed he delivered was fairly raised from such seed " of 
 a good growing stock ;" and there being an express warranty, there can 
 be no warranty implied beyond it. It was agreed that the appellant should 
 sow a certain quantity of mangold wurzel seed on his own land of * a good 
 growing stock,' and should sell the respondent the seed raised therefrom. 
 There is nothing to show that he has not done so ; and if so, the only 
 warranty he gave has been complied with. The judgment of the 
 County Court, therefore, was wrong, and this appeal must be allowed."
 
 MANUHE NOT CORRESPONDING WITH WARRANTY. 527 
 
 Rlslc of verulpe in adsenre of express warrnnlij. — Althongli a vendor 
 is informed of the purpose for which a material is required, yet if the 
 vendee insiDects it, its unsoundness or unfitness for the purpose, in tlie 
 absence of any express warranty, is no defence to an action for the full 
 price ; 7;«r GocUurn C.J. {Fitzgerald v. Iveson), 4 H. & N. 412, 28 
 L. J. Exch. 238. 
 
 Damages for selling manure not corresponding ivith warranty. — W., 
 being agent to sell for two distinct principals, H. and defendant, both 
 dealers in manure, contracted with plaintiff to take back manure which 
 as agent for H. he had supplied to plaintiff, on condition that plaintiff 
 would take certain other manure which defendant dealt in instead, and 
 which W. warranted, it being, as the jury found, usual to sell sucli 
 manure with a warranty. Defendant executed the order for the latter 
 manure, and received payment from plaintiff, who was also a dealer 
 in manure, and, as defendant knew, purchased to sell again. Plaintiff 
 having resold the niauui'e to different purchasers, was threatened with an 
 action by one of them for loss sustained by reason of the manure being, 
 as was proved, of an inferior quality, and plaintiff made good the loss, 
 but no complaints were made by the other pui'chasers. It was held, 
 first, that defendant was liable to plaintiff in an action on the warranty 
 given by W. ; secondly, that the difference between the value of the 
 manure supplied and its value if it had been according to the warranty 
 was a correct measure of damages. And semble, that the loss which 
 the plaintiff made good to his vendee was damage naturally arising from 
 defendant's breach of contract, and for which he was liable to the 
 plaintiff ; and that if the two contracts made by W. with plaintiff were 
 to be considered as only one, plaintiff had sufficient interest in it to 
 maintain the action. The jury gave the ordinary measure of damages — 
 i e., difference between the actual value and the value guaranteed {Dingle 
 V. Hare). 
 
 Where warranty not implied. — The sale of an article not by sample, 
 but by a particular description, does not necessarily import a warranty, 
 if all the circumstances show that it was understood as a mere ex- 
 pression of opinion or belief ; and words having a known natural 
 meaning can have a particular meaning attached to them, as prevailing 
 in a certain trade, only by clear evidence, as a matter of fact, of their 
 general use and acceptation in such meaning. The defendant, a corn 
 dealer, sold to the plaintiff, also a corn dealer, barley by sample, which 
 he called " seed barley," but which he had himself just purchased by 
 sample, not having seen the bulk, and, as the plaintiff knew, being 
 ignorant of what sort it was. It turned out to be an inferior kind of 
 barley, and different from ordinary seed barley. There was no evidence
 
 538 NO IMPLIED WARRANTY THAT MEAT FIT FOR FOOD, 
 
 that in the corn trade the words " seed barley " had acquired a particu- 
 lar meaning, though there was evidence that it had in the locality 
 such a meaning. It was held that there was no evidence of a war- 
 ranty, nor of a contract for anything else than what the words naturally 
 imported, viz., barley seed which would grow ; and such barley having 
 been delivered, that there was no cause of action. The rule to set aside 
 the nonsuit was discharged. And j^er Martin B. : " There was no war- 
 ranty. A warranty is an absolute engagement that the article sold is of 
 a particular quality or kind, and will answer a particular purpose. Here 
 there was a mere expression of opinion or belief. The defendant had 
 negotiated for a quantity of barley, which he believed to be ' seed 
 barley,' and sold, as he had bought, by sample ; saying that he believed 
 it to be seed barley, but did not know what sort it was. Assuming, 
 even, that the words ' seed barley ' meant what the plaintiff maintains, 
 still, if it was understood that there was a purchase of the article which 
 was shown, it would be the same if any other name had been given to 
 it. If we could see that ' seed barley ' was an article well known and 
 commonly sold as such, then it might be that the sale of barley by that 
 name might import a warranty. But it was not so here. And as to 
 the damage, even if there was a breach of warranty, it would only be 
 nominal, for the plaintiff brought his loss upon himself by warranting 
 the barley as 'Chevalier' or a certain particular quality." {Carier v. 
 
 Cricli:.) 
 
 No implied warranty that meat fit for food. — There is no implied 
 warranty that an article exposed for sale as human food is fit for that 
 purpose ; and if a meat salesman in Newgate market exposes a carcase 
 for sale which, in consequence of some latent defect of which he is 
 ir^norant, is mifit for human food, he is not liable to a penalty under 
 section 52 of 14& 15 Vict. c. 91 for selling it, nor, in the absence of 
 any fraud on his part, will an action on the case for deceit lie against 
 him ; nor will an action to recover the price lie by a purchaser, who, 
 Ijclievinf it to be fit for human food, has purchased it to sell to retail 
 customers. And par Curiam : " The undoubted general law is that, in 
 the absence of all fraud, if a specific article is sold, the buyer having an 
 opportunity to examine it and selecting it, the rule of Caveat emptor 
 applies, {Chaivler v. Hopldns, 4 M. & W. 399, 8 L. J. (N. S.) Ex. 14, 
 Farldmon v. Lee, 2 East 314, and Morleij v. Aitmhorough, 3 Ex. 500, 
 and 18 L. J. (N. S.) Ex. 148), and the plaintiff has to establish that in 
 the case of a salesman dealing with a retail buyer there is an exception 
 to the general rule, and that there is an imi)lied warranty that the meat 
 is fit for the purpose for which probably it is bought. None of the 
 cases cited decide this case, although in JhiniVy v. Bollelt (IG ]\I. & W.
 
 SELLING SULPHURED HOPS. 529 
 
 646, 17 L. J. (N. S.) Ex. 190), all the law is examined and collected, 
 and the matter was much discussed. We are of opinion that a salesman 
 oflFering for sale a carcase with a defect of which he is not only ignorant, 
 but has not any means of knowledge (the defect being latent), is not 
 liable to any punishment, and does not, as a matter of law, completely 
 warrant that the carcase is fit for human food, and is not bound to 
 refund the price of it should it turn out not to be so " {Emberton v. 
 Matthews). 
 
 Selling had meat. — A meat salesman can be indicted and convicted at 
 common laiv for hiowingly sending or exposing meat for sale in a public 
 market as fit for human food, which in fact was 7iot so, and the defendant 
 was imprisoned for six months : per Willes J. {Reg. v. Stevenson). 
 
 Carrying had meat. — A carrier can be indicted and convicted at 
 common law for Icnoicinghj bringing to market meat unfit for human 
 food : j^er Gurney R. {Keg. v. Jarvis). 
 
 Ahsence of intent to sell bad meat for food. — A person is not indictable 
 for sending to a meat salesman meat he knows to be unfit for human 
 food, if he does not intend (as appeared in this case, from the evidence 
 of a bone-boiler called by the defendant) that it is to be sold for human 
 food : per Willes J. {Reg. v. Crawley). 
 
 Sending bad cider to customer. — A cider merchant at Cheltenham sold 
 to the defendant, a publican in London (to be delivered to him there), 
 a hogshead of cider warranted " good " and " prime." A hogshead 
 being delivered, it was tapped, and found unfit for use. The defendant 
 at once wrote to the plaintifi" that the little he had sold was complained 
 of, and that if it continued to be so he should have to return it. No 
 notice was taken of this letter for about a month, during which period 
 the defendant was trying to sell it, and found it unsaleable. He then 
 wrote to the plaintiff, proposing to return the hogshead, but the plaintiff 
 refused to assent to this, and sued the defendant for the price. The 
 defendant paid into court the value of the part he had used, and was 
 held not to be liable for the residue, and scmUe for none {Lucy v. 
 Mouflet). 
 
 Selling sulphured hops. — The defendant, a hop merchant, entered into 
 a contract with the plaintiff", who was a hop grower, for the purchase of 
 hops by sample. Inasmuch as the defendant could not sell hops to his 
 customers if sulphur had been used in their growth, he inquired of the 
 plaintiff" at the time of making such contract if sulphur had been so 
 used, and the plaintiff" stated that it had not, and thereupon the contract 
 was made. The plaintiff knew of the objection by hop merchants to 
 sulphured hops, and the defendant would not have bought the hops if 
 he had been aware that sulphur had been used, as it was admitted it
 
 530 ADULTERATED SEED. 
 
 liad been in 5 acres out of 300, and the sulphured hops mixed with the 
 unsulplmred afterwards. It was held by the Court of Common Pleas 
 that the contract was conditional on sulphur not having been used in 
 the growth of the hops ; and that if sulphur had been so used, the 
 defendant was at liberty to reject the hops, although they corresponded 
 with the sample by which they had been sold. And per Byles J. : 
 •' The case of Nichol v. Godts (10 Ex. 191, and 23 L. J. (N. S.) Ex. 314) 
 comes very near to the present one. Although that was the sale of an 
 ascertained article, foreign refined rape-oil, which corresponded with 
 the sample, the Court held that the vendee might return it on its not 
 answering to the description by which it was sold " {Bamierman v. 
 Wiite). 
 
 SelUiig refuse calce. — It was held by Polloch C.B., in Jaclcson v. Har- 
 rison, that seed-crushers who sold the refuse cake when the oil had been 
 expressed from the linseed to farmers for oilcake, but without any de- 
 scription as cattle food, or any express or actual warranty as such, and 
 Avithout, so far as appeared, anythiug being said as to its use, or any in- 
 timation that it was bought for that purpose, are not liable on an implied 
 warranty that it was good for cattle food, when the cows died (from its 
 mechanical, and not chemical action) after eating it. 
 
 Adiilterafed seed. — In Dm.uj v. GiUctt, which was tried in the Common 
 rieas at Westminster, tlie verdict turned on the amount of burnet seed 
 among the h\ qrs. of sainfoin sold by the defendant to the plaintiff, 
 without a sample or a warranty. 
 
 It was allowed by the skilled witnesses on both sides that you would 
 expect to meet with burnet in every sainfoin sample ; but according 
 to the testimony of the witnesses, and Prof. Buckmann especially, who 
 thought it was a crop of burnet, the per-centage in the seed purchased 
 by the plaintiff was very great. The seed was duly drilled in with 
 barley in the February of 1858, and fed with sheep that autumn, mown 
 in 1859, fed again in 1860, and then ploughed up as being perfectly 
 useless, instead of running out its five or six years ; and at the end 
 of that time the plaintifl" applied to the defendant for compensation, 
 and wished for an arbitration by a mutual friend, who fixed the claim 
 for compensation at a most moderate figure. The defendant declined all 
 such overtures, and principally relied on the claim being a stale one, in 
 consequence of the lapse of time, and on the fact that the plaintiff, 
 instead of merely running his lambs over the sainfoin after the barley was 
 cut, had folded sheep on it, who had eaten the very heart out of it, and 
 laid the foundation for lob and other weeds among the plants next spring. 
 
 The general tenor of liis evidence went to show that no sainfoin sam- 
 ples were now free from a very great admixture of burnet. and that
 
 CONVICTION UNDER ADULTERATION OF SEEDS ACT. 531 
 
 no purchaser could exjiect it. In shape the two seeds are very distin- 
 guishable, as the sainfoin is oval and the burnet has four angles ; and 
 while the former costs 2s. 2\d. a lb., the latter costs only Is. The 
 seedsmen's theories were very variouSo One had seen more than one 
 part in five burnet ; another thought a fourth or a fifth a fair sample, but 
 had never seen less than a fourth, and did not expect, on an average, to 
 get less than a sixth in it ; while some said an eighth or a tenth. A 
 great Strand dealer " would not give a fourth burnet if he knew it. I 
 should not have done you justice if I did." In fact, he went so far as 
 to say he would not sell it if it was in that state, but would clean it. 
 Another eminent dealer said tliat he might send three or four per cent, 
 out in his samples, but certainly not more than five ; and has for twenty 
 years past only recommended milled seed, i.e., set loose from the 
 shell. He added, there " has not been much more burnet of late years, 
 but there has been much more noise made about it. If I w'as asked 
 for ^;?/re sainfoin, I w'ould not sell it all ; if I was asked for the best, 
 I'd send the best I had." He, however, thus quahfied the last remark 
 on cross-examination : "I should not do you justice if you paid me the 
 best price and I sent you one-fourth burnet." The plaintiff as it hap- 
 pened, had paid the top price, 52s., in 1858. and hence this witness 
 virtually settled the question against the defendant who called him. 
 Mr. Justice Keating asked the jury to consider was it such seed as 
 would answer to the agreement between the parties, or was it such as 
 might be reasonably sold for sainfoin seed. The jury, after a very short 
 consultation, found for the plaintiff for the £41 6s. Df?. claimed. On the 
 count charging fraud there was a verdict for the defendant, as there was 
 not the smallest ground for attributing to him anything of the kind. 
 The seed was proved to have come to him direct irom Mr. Forshaw, a 
 very aged and infirm farmer in the neighbourhood (whose health alone 
 prevented him from travelling up to speak to the fact), and had been 
 passed on at once to the plaintiff. 
 
 Conviction vnder the Adulteration of Seeds Act, 18G9. — At the Lord 
 Mayor's Court on Nov. 26, 1877, one T. S. was charged with having 
 sold killed seeds with intent to defraud. By this Act, killing or dyeing 
 seeds, and the sale of such, is prohibited. The custom appears to have 
 been to buy charlock-seed, and to kill it by artificial means, to prevent 
 it from growdng, as thereby the fraud would be discovered. This dried 
 or killed seed is then mixed with turnip or other similar seeds, and the 
 whole is sold as good seed. The value of turnip-seed is about 80s. a 
 bushel ; that of charlock-seed 3s. &d. In this case the defendant was 
 charged with killing and afterwards selling 28 bushels of killed charlock- 
 seed ; he was found guilty, and fined £5 for each offence. 
 
 M 51 2
 
 53;J SALE AND MARKET PRICE — RECOVERY OF DIFFERENCE. 
 
 Recoveritig diff&rence between sale and marJcet price where sheep not 
 delivered. — The plaintiff having contracted with the defendant to buy 
 of him a lot of 48 sheep at 53s. a head (less than the market price at 
 the time), to be paid for on delivery, took away five, for which he paid 
 in a day or two, and agreed to take the rest in a fortnight. Within 
 that time, before any application for the remainder, the defendant sent 
 them away and re-sold them. The vendee then within a fortnight 
 applied for 19 "to make half the sheep at half the time," offering to 
 pay for them, and finding that they were re-sold, sued the vendor on the 
 contract and also in trover. It was held that he was not entitled on 
 either count to recover the full value, but only the difference between 
 the price he was to have paid for them and the market price when he 
 was entitled to them, and the rule was made absolute to reduce the 
 damages on the second count from £118 19s. to £5. And per Curiam: 
 " It is to be understood that though in a case like this the plaintiff may 
 not recover more than this, it is possible that if a stranger had converted 
 the goods, the plaintiff would have been entitled as against him, to re- 
 cover the whole value of the amount or proceeds. That might depend 
 upon whether the jilaintiff would be liable to the seller for the contract 
 price ; but probably in such a case, he would be, for there the seller 
 would be in no default ; and if he could not deliver the goods, owing to 
 the wrongful act of a third party, it may be that he could recover the 
 whole price, and that the vendee would be entitled to recover the whole 
 from the stranger" (Chinery v. Viall). 
 
 Violation of consignor'' s orders to carrier as to delivery. — Although the 
 consignor of goods directs a carrier to deliver them to the consignee at a 
 particular place, the carrier may deliver them wherever he and the con- 
 signee agree. The plaintiff having sold corn by sample to be delivered 
 
 to the purchaser at his mill at B , sent the corn by the defendants' 
 
 railway, carriers paying the freight to B station, and an extra sum 
 
 for cartage from B to the mill. In pursuance of general orders 
 
 previously given by the consignee to the defendants, but not communi- 
 cated to the plaintiff, the defendants left the wheat at their station at 
 B., and advised the consignee of its arrival, who examined it, but left 
 it there for two months, and afterwards refused to take it. The wheat 
 was deteriorated in quality during that time. It was held that the 
 defendants were not liable to an action by the plaintiff for not deliver- 
 ing at the mill, as the non-delivery there was pursuant to the orders 
 of the consignee, and that it made no difference in this respect that 
 the plaintiff could not recover the price of the wheat from the pur- 
 chaser, in consequence of there being no acceptance of the wheat within 
 the meaning of the Statute of Frauds ; and scmble the rights of the
 
 MEASURE OF DAMAGES FOR NON-DELTVERY. 533 
 
 plaintiff and the purchaser were not affected by the non-delivery at the 
 mill {London and North Western Railway Company ajjpts. v. Bartlett 
 respt.) 
 
 Conskjnee sues for missiny yoods at place of destination. — Where goods 
 are sent by a carrier, the consiynee is e7ititled to recover their value at the 
 place to which they are consiyned, as distinguished from the place at 
 which they were delivered to the carrier {Rice and Another appts. v. 
 Baxendale respt.). 
 
 Damayes in action for non-delivery, measiure of. — In an action ao-ainst 
 carriers for the non-delivery, according to contract, of goods of a 
 marketable kind intended for sale, the jury may give as damayes the 
 difference between the market value on the day the yoods ouyht to have 
 been Irowjht to market, and the day on which they afterwards icere, 
 although no notice be given to the carriers that the goods were intended 
 for market ; for such damages are the natural and immediate conse- 
 quence of the defendant's act. There is no difference in the applica- 
 tion of this rule, between a delay occasioned by the detention of o-oods 
 in the hands of the carrier, and delay necessary for the purpose of 
 restoring goods to a marketable state, when delivered by the carrier in 
 a damaged condition. 
 
 Here the plaintiff sent hops in bags from Kent to London by the 
 defendants' railway, for the purpose of delivery to the vendee, a hop 
 dealer. The hops were detained by the defendants several days, and 
 received some damage by water, and the vendee refused to accept them. 
 The plaintiff dried the hops, and when fit for sale the price had fallen 
 in value. Independently of that, the stained portion of the hops 
 deteriorated the marketable value of the whole, although for the pur- 
 pose of brewing the value of the bulk was unaffected. It was held 
 by the Court of Exchequer that the plaintiff was entitled to recover, as 
 damages from the defendants, the difference in price of the amount of 
 deterioration in market value, and was not confined to the value of the 
 parts actually damaged, although the defendants had no notice that the 
 hops were sent for the purpose of sale and not for use. And per 
 Channell B. : "I think that the doctrine laid down in Hadley v. Baxen- 
 dale (9 Ex. 341, 23 L. J. (N. S.) Ex. 179), by this Court does not apply 
 to this case, and I also agree in the decision of the Court of Queen's 
 Bench in the case of Synced v. Poor (28 L. J. (N. S.) Q. B. 178), which 
 seems to me to be perfectly distinguishable from this case : in each of 
 the above cases the damages were consequential, but here there was a 
 strict diminution in value. In Smeed v. Poor the Court admitted that 
 the plaintiff was entitled to recover compensation for all heads of 
 damage directly resulting from the non-delivery of the thrashing-
 
 534 ACCErTAXCE OF HOPS. 
 
 machine ; but what was attempted to be recovered there, and what tlie 
 Court heki was not reasonable, was in my opinion not at all necessarily 
 consequential damage from the non-delivery of the thrashing-machine. 
 Here the bops were delivered in a damaged condition, and I agree in 
 the statement that there is no difference between their being delivered 
 in a damaged condition for the purpose of this enquiry, and their having 
 been kept in the defendants' own premises, as from the facts found 
 by the jury, for all purposes, it is precisely the same us if they had 
 been in the defendants' possession, and not in the plaintiff's. At the 
 time they became available to the plaintiff as goods for sale, the market 
 had fallen from the defendants not performing their contract ; if there 
 is, therefore, any case where that can be treated as damage, this is a 
 case of that description. This seems to me to be the test by which 
 you must endeavour to ascertain the damages ; if you cannot resort 
 to this test, I own I do not know to what test you can resort. I am 
 therefore of opinion that the rule in this case should be discharged" 
 (Collard v. South Eastern Railway Comjiayuj). 
 
 The measure of damages for non-delivery of goods by a carrier, as 
 laid down in Hadley v. Baxendale, was approved of by the Court in 
 Gee V. Lancashire and Yorkshire Railway Comimny (30 L. J. (N. S.) 
 Ex. 11). 
 
 Acceptance of hops. — Plaintiff, a hop grower, sent samples of hops to 
 his factor ; and defendants, hop merchants, agreed with plaintiff at the 
 factor's premises to purchase some. The facte r made out a bought note, 
 and delivered it to defendants together with the sample. At defendants' 
 request the date of the note was altered to give them longer time for 
 payment. In an action for not accepting the hops, this was held not a 
 sufficient note or memorandum to bind defendants to the bargain within 
 sec. 17 of the Statute of Frauds. The declaration was in assumpsit for 
 refusing to receive hops. The plaintiff" accompanied the defendants to 
 the factors, and after bargaining for the sale of the hops at £16 16s. 
 per cwt, the sold note was then given to the plaintiff^, and the bought 
 note was, with the sample, delivered to the defendants. In the sold 
 note, the date was October 19th, but 19th was crossed out and 20th 
 substituted at defendants' request, the custom in the hop trade being 
 to pay on the Saturday week after the purchase, so that if the sale had 
 been completed, the payment would have taken place on November 3rd, 
 the defendants obtaining thereby a week longer for payment. On 
 October 23rd, the hops were sent to the factor according to usage, to 
 be weighed. The plaintiff was present, as was also one of the defen- 
 dants during some portion of the weighing. One of Messrs. Noakes's 
 warehousemen weighed for the plaintiff", and one of the defendants' men
 
 STATUTE OF FRAUDS. 535 
 
 acted for them. A dispute having arisen about the weighing, and as 
 to the condition of the hops, the defendants refused to take them at all. 
 In consequence of the badness of the hop season in England, English 
 hops became suddenly almost unsaleable, and on November 3rd they 
 were not worth more than £8 per cwt., although the bargain had been 
 made on October 19th at £16 16s. per cwt. It was contended on the 
 defendants' behalf, that this being a contract for the sale of goods above 
 £10, there was no note or memorandum in writing made by the party 
 to be charged with the contract or by his agent thereunto lawfully 
 authorised, so as to satisfy the 17th section of the Statute of Frauds, 
 and a verdict for £420 was taken for the plaintiff, leave being reserved 
 to the defendants to move to enter a nonsuit. It was contended that 
 Noakes the factor was as much the agent of the defendants as the 
 plaintiff, just as a stock or sharebroker or an auctioneer would be 
 between a vendor and purchaser, that he made out the usual bought 
 and sold notes, and handed the bought note to the defendant, that the 
 defendants expressly directed him to alter the date, and that there was 
 evidence for the jury that Noakes was acting as the defendants' agent. 
 
 In the Exchequer Chamber, the decision of the Court of Exchequer 
 was reversed, and it was held that there was evidence from which a 
 jury might find, that Noakes was the agent of the defendants as well 
 as of the plaintiff to draw up a record of the contract between them, 
 and that if he were, the writing by him of " Messi-s. Evans " was a 
 signature binding on the defendants within the 17th section of the 
 Statute of Frauds ; and per Byles J. : "It seems to me that there was 
 evidence sufficient to sanction a verdict for the plaintiff. It is plain 
 that the signature, though not at the foot of the document, but at the 
 beginning, is abundantly sufficient. Then in the first place, was the 
 plaintiff bound by what Noakes did ? The Messrs. Noakes were em- 
 ployed by him as factors ; there was therefore, no doubt, more evidence 
 against him than against the defendants. But the defendant and the 
 plaintifF knew what Noakes was doing. "What does the defendant do ? 
 Next of all he sees a duplicate written by the hand of the agent, and 
 he knows it is a counterpart of that which was binding on the plaintiff, 
 he knew what was delivered out to him was a sale note in duplicate, 
 and accepts and keeps it. The evidence of what the defendant did 
 both before and after Noakes had written the memorandum, shows 
 that Noakes was authorised by the defendant ; and the case comes 
 directly within the terms of Lord Abinger's judgment in Johnson v. 
 Dodgson (5 Taun. 786)." And per Keating J. : " There is abundance 
 of authority from Lemaijna v. Stcmleg (3 Lev. 1), -downwards, that the 
 name appearing on the face of the document is a sufficient signing
 
 53C) DA^IAGES FROM DELAY TN DELIVERY OF GOODS. 
 
 within the statute." And per AffUor J.: "I agree with my brothers 
 Crompton and BlacHurn that Graham v. Marsoti (5 Bing. N. C. 603, 
 and 8 L. J. (N. S.) C. P. 324), is not inconsistent with Johnson v. 
 Dodgson (2 M. & W. 653, and 6 L. J. Ex. 185). In the former case 
 the circumstances failed to raise the question of authority which is 
 raised here" {Durrcll v. Evans). 
 
 Delay in delivery of goods may not he set tip in reduction of damages 
 on breach of warranty.— In an action for goods sold and delivered, or 
 in an action upon a guarantee of the payment of the price of such 
 goods, it is not competent for the defendant to set up in reduction of 
 damages, the fact that the goods were delivered by the vendor to the 
 vendee, after the stipulated time in the breach of the agreement be- 
 tween them. And per 3IeUor J.: "There is a manifest distinction 
 between the principle of Mondel v. Steele (8 M. & W. 858, 871), and 
 the endeavour to set off damages arising from delay or similar causes " 
 (Oasfler and Another v. Pound). 
 
 Putting oil into plaintiff's Miles by defendant passes the property in 
 
 it, There was an agreement between the plaintiff and C, for the sale 
 
 to the plaintiff of all the oil produced from the whole crop of pepper- 
 mint grown on his farm in the year 1858, and C, after having had the 
 oil weighed, according to contract, and put into the bottles, which the 
 plaintiff had sent to him for that purpose, sold it to the defendant. It 
 was held by the Court of Exchequer, on the authority of Aldridge v. 
 Johnson (5 W. R. 703), and Logan v. Le Ilesiirier (6 Pr. C. 116), 
 that the bottles having been sent by the plaintiff and filled up by C. or 
 his agent, the property in the oil had passed to the plaintiff, and that 
 he could maintain an action of trover against the defendant {Langton 
 V. niggi7is). 
 
 Contract for turnip seed to satisfy Statute of Frauds.— The plaintiff, a 
 seed merchant in Kent, wrote to the defendants, seedsmen in London, 
 offering to sell the seed of growing turnips ; to which the defendants 
 replied, asking the quantities and price for white globe turnip seed. 
 The plaintiff answered that all he could offer at present was the pro- 
 duce of five acres at 18s. Gd. per bushel delivered at the Bricklayers 
 Arms Station. The defendants offered to take two or three acres at 
 16s. Gd. The jjlaintiff wrote saying he could not accept less than 18s., 
 his contract price with London houses. The defendants then wrote the 
 following letter, dated March 21st : " In reply to your favour of this 
 morning, we beg to say, as our neighbours are giving you 18s. per 
 bushel for white globe turnip, we as a beginning with you will take 
 the produce of three acres at that price, to be delivered, as soon as 
 liarvested, free of carriage to London station. Let us know what other
 
 SALE OF TURNIP SEED. 537 
 
 sorts you may have to offer, as also Wurzel seed of sorts for 1861 
 harvest. AVaiting your reply, we remain, &c." The plaintiff verb- 
 ally told the defendants he accepted the offer. The defendants having 
 refused to receive the seed, it was held by the Court of Exchequer, con- 
 firming Wightman J.'s ruling on the trial, that there was a binding 
 contract in writing within the l7th section of the Statute of Frauds, 
 although the plaintiff never replied in writing to the defendants' last 
 letter. The plaintiff' gave evidence to the effect that he did not reply 
 by letter to the defendants' letter of March 21st, but that being in 
 London on March 25th he called at the defendants' shop, and had 
 some conversation with Ainsworth one of the defendants on the 
 subject of other seeds, in the course of which he said : " I think 
 we have some transaction with you ?" and the plaintiff replied, 
 *' Yes, a contract for three acres of white globe." Ainsworth, on 
 the other hand, stated that he said to the plaintiff when he called, " I 
 believe we have been writing to you about some turnip seed ? " and the 
 plaintiff said, " Yes, but I cannot accept your offer ; " and that acting 
 upon that the defendants bought turnip seed elsewhere at a higher 
 price. It appeared that the market had fallen considerably between 
 March and August. Wighiman J. left it to the jury to say whether the 
 plaintiff at the interview rejected or accepted the terms of the letter of 
 March 21st, reserving leave to the defendants to move on the question 
 of whether there was any contract in writing to satisfy the 1 7th section 
 of the Statute of Frauds. The jury found that the contract was 
 accepted, and the verdict was entered for the plaintiff. And per 
 Wilde B. : "The single question is whether the letter of 21st of March 
 is a sufficient memorandum within the Statute of Frauds ? If it is a 
 contract to buy three acres of turnip seed at 185. per bushel, then the 
 point is not arguable. I think it is a contract. I will only say in 
 reference to the words ' waiting your reply,' that if they are to be 
 regarded as making only a proposal, then there is not a contract, but 
 I do not give that effect to the words. The letter makes enquiries 
 as to other sorts of turnip seeds, and also as to wurzel seed, and the 
 defendants wait for a reply as to that part of the letter" {Watts v. 
 Amsu'orth). 
 
 No contract where sale conditional on ansicer hy return of j^ost which 
 teas not sent. — A letter making an offer for a horse, adding, " Send a 
 reply by return of post," was held by Bgles J. to be conditional, and 
 not to constitute a contract in the absence of a reply ; and the subject 
 of the letter having been sent to, but not actually received by the 
 defendant, it was also held there was no delivery to him. The offer 
 having received no answer, and being conditional on return of post, the
 
 538 SEIZURE AND SALE UNDER BILL OF SALE. 
 
 plaintiff could not recover oiT goods bargained and sold, and there not 
 having been a delivery proved, the plaintiff could not recover on goods 
 sold and delivered, and the verdict for the defendant was confirmed by 
 the Queen's Bench {Kirhy v. Trotter). And in Emmott v. Riddell, a 
 proposal on one side, not answered by the other until after a delay of 
 some months, and then not assented to, but some months afterwards 
 acceded to, was held by Martin B. to be no evidence of a contract. 
 
 Vemhr liable for fahe representation of length of lease even ivhen vendee 
 had means of knowledge. — The mere possession by a purchaser of the 
 means of knowledge, does not prevent the vendor's liability for a false 
 representation ; and the vendor having sold a lease as of a longer term, 
 he knowing it to be a shorter, was held liable though he had sent a draft 
 conveyance reciting the lease, the recital not having been referred to by 
 the purchaser, and the plaintiff's verdict was upheld by the Queen's 
 Bench (Ferrier v. Peacoclc), 
 
 Assignment hg hill of sale to attorneg from client not void on ground of 
 champerty. — Anderson v. RadcUjfe and WalJcer was affirmed in error, 
 and^^r Curiam : "The Court of Queen's Bench which decided Simpson 
 V. Lamh (7 E. & B. 84, 26 L. J. (N. S.) Q. B. 121) distinguished this 
 case from that, on the ground that here there was not an absolute 
 purchase, but only a security for costs already due." 
 
 Seizure and sale under a hill of sale. — On a bill of sale with covenant 
 for payment of the money at a distant day " or at such other day or 
 time" as the creditor, the assignee, might appoint by notice in writing, 
 it was held by the Court of Queen's Bench that reasonable notice was 
 required, and the assignee having made a demand of payment in half- 
 an-hour, and in default of payment seized and sold, he was liable to an 
 action of trespass, but that the damage must be estimated with reference 
 to the probability of the debtor's having been able to obtain the money 
 had reasonable notice been given ; and semhle pier Crompton J. that a 
 reasonable notice means not merely such time as might be necessary for 
 him to get the money, supposing him to have had it ready, but time to 
 raise it, supposing that he had it not {Brightleg v. Norton). 
 
 Portion of tjankrvpfs farm produce sold and placed separate does not 
 pass to assignees. — Whore, according to the custom of some parts of 
 England, the sold produce of a farm is stacked apart from the unsold 
 produce thereof, with liberty for the purchaser to remove such sold 
 produce from time to time as he may require it, and at the date of the 
 bankruptcy of the seller a portion only of such sold produce has been 
 removed, it was held that the purchaser was entitled to the benefit of 
 the unremoved portion, and that the same did not pass to the assignees 
 of the seller as being in his order and disposition, within the meaning of
 
 RAILWAY COMPANY TO TAKE WHOLE ESTATE. 539 
 
 the 125 til section of the Bankrupt Law Consolidation Act, 1849 {Ex 
 parte Vidler and A?iother re Terry). 
 
 Railway dividing one jMi't of farm from another. — A railway passed 
 through a farm, and divided it, so that the buildings could not be con- 
 veniently used for one part of the farm. This was held by Romilly M.R. 
 to be an injury within the meaning of 8 & 9 Vict. c. 18, s. 69, which 
 required the substitution of other buildings, and that the compensation 
 paid for the damage might be applied in the erection of new buildings 
 upon that part of the farm which required them. It was also held on 
 the authority of In re Buclcingham Railway Company (14 Jur. 1065), 
 that the application for the sanction of the Court was not within 8 & 9 
 Vict. c. 18, s. 80, and that the railway company was not liable to pay 
 the costs, but that the costs, exclusive of those of the railway company, 
 must be paid out of the fund in Court {In re Oxford, Worcester, and 
 Wolverliampton Railway Company ex parte the Devisees of Milivard). 
 
 When railway company obliged to take house and premises. — A railway 
 company under the compulsory powers of the Land Clauses Consolida- 
 tion Act cannot take a portion of a garden and orchard essential to the 
 enjoyment of a mansion and premises ; they must take the entire house 
 and curtilage ; and therefore where a mansion and premises were sur- 
 rounded by a brick wall, and a railway company took a portion of the 
 garden and orchard, and divided one part of the premises from another, 
 and destroyed all the internal communication, it was held that the com- 
 pany were bound to take the whole estate. And a company may 
 abandon a notice given with the intention of taking lands under the 
 compulsory powers conferred upon them : such notice, without some act 
 to obtain possessson, is not a contract binding on the company : i^er 
 Romilly M.R. {Reg. v. Wycombe Railivay Company). 
 
 Requiring company to take all the premises they cut through. — A land 
 owner having received notice from a railway company to treat for the 
 sale of a part of his premises, does not by offering to sell that part at a 
 price named by him preclude himself, if the company decline the off'er, 
 from requiring them to take the whole under the 92ud section of the 
 Lands Clauses Consolidation Act : per Wood V.C. {Gardner v. Charing 
 Cross Railway Company). 
 
 Mortgage on living sold no ground for rescinding contract. — An advow- 
 son was sold, and after the sale the purchaser found that there was a 
 mortgage on the living for money advanced to build a new parsonage- 
 house. It was held by the House of Lords on appeal from Stuart V.C. 
 and the Lord Justices that this did not form a groimd for resci?iding the 
 sale of the advowson, or for alloiving to the purchaser a deduction from the 
 amount of the pu^rchase money. And j;^r Lord Campbell: " No misrepre-
 
 540 INACCURATE PARTICULARS OF SALE. 
 
 sentatiou on the part of the vendor was alleged ; but it was said he did 
 not communicate the fact of this charge on the living ; that could not 
 afifect the sale of the advowson, the value of which it did not diminish 
 but rather increased, for tlie living was more valuable for having a good 
 parsonage-house on the land, than if the house was bad or there was 
 none. The case of BurneJJ v. Brown (1 J. & W. G8) did not apply ; for 
 there the right of sporting over the land did affect the value of the land, 
 which was the thing sold. This was a case where the maxim Caveat 
 emptor applied ; and the purchaser not having made himself acquainted 
 with all the facts, which he might easily have done, had no title now to 
 ask for compensation." And j;>er Cramvorth Lord : " Before the law 
 was altered as to titles, I question much whether, if the vendor of an 
 advowson knew that there was a modus affecting a particular farm, he 
 was bound to say a word about it " {Edwards Wood v. MarjorihaiiliU and 
 Others). 
 
 Inaccurate particulars of sale. — If particulars inaccurately describe 
 premises to be sold by auction, the Court will refuse to direct a specific 
 performance of the contract, though the error might have been ascer- 
 tained on a minute inspection of the particulars and conditions of sale ; 
 and the evidence of an auctioneer is admissible to state what took place 
 at the auction. In the disputed lot (which was described as " an undi- 
 vided moiety in freehold plantation, &c."), the particulars said, " the 
 apportioned rent of this lot is £16 per annum," whereas it was only £8, 
 but the error was patent on such particulars. And 2)er Sir J. Romillij 
 M.R. : " I regret I cannot make a decree for specific performance, 
 because the defendant has occasioned this suit by refusing the offer 
 made to put an end to the contract. In case of mistake, the principle 
 upon which the Court proceeds is, that if it appears upon the evidence 
 that there was in the description of the property a mistake, which a 
 person might londfide make, and he swears positively that he did make 
 such mistake, the evidence not being contradicted, this Court cannot 
 enforce the specific performance of the contract against him. If there 
 is no ground for the mistake, if no man with his senses about him could 
 have misapprehended the description or character of the parcels, then 
 it is not sufficient for him to say that he made a mistake or he did not 
 understand what he was about. It is quite different from Matins v. 
 Freeman (2 Keen, 25; S. C. 6 L. J. (N. S.) Ch. 133), where a man bought 
 one lot by mistake for another, and as soon as the auction was over, 
 stated that he had made the error, and refused to sign the contract. 
 Still the statement here is contained in the lot, and grammatically it 
 applies to the apportioned rent of the lot, and the lot is an undivided 
 moiety, and I cannot say upon that statement that it is not possible a
 
 REMUNERATION OF AGENT WHERE SALE GOES OFF. 541 
 
 person may have been hond fide deceived in the matter, and he swears 
 he was so deceived " {Swaisland v. DearsJeij). 
 
 Right of agent to remimeration where sale goes off. — In the absence of 
 any express contract, auctioneers are entitled to reasonable remunera- 
 tion for sales by private contract, effected through their instrumentality, 
 even although by the act or default of the vendor the contract is re- 
 scinded ; and it is for the jury whether the same commission as on sales 
 by auction is reasonable ; and semJ)le that apart from express contract, 
 they would be entitled to the expenses of abortive attempts at sale, but 
 it would not be reasonable that the auctioneer should charge not only 
 expenses and a fixed fee, but also commission : jjer Coclihurn C.J. {Clark 
 V. Smytliies). 
 
 Agent should declare himself at an auction. — A party bidding at an 
 auction, and giving his own name simply to the auctioneer, must be 
 understood to be the contracting party, and ought to be held liable as 
 such ; if he is bidding only as agent, and wishes to protect himself from 
 being treated as the contracting party, he ought to say so {Williamson 
 V. Barton).
 
 51iJ EEPRESENTATION AND WARRANTY. 
 
 CHAPTER XV. 
 
 HORSES AND CATTLE. 
 
 W/icn ihci'P is no warranty the rule " Caveat emptor " applies to sales ; 
 and excej^t there he deceit, eithefr hy fraudulent comealment or a fraudulent 
 misrepresentation, no action for unsoundness lies by the vendee against 
 the vendor, upon the sale of a horse or other animal {ffill v. Balls). It 
 Avas formerly a current notion that a sound price was tantamount to a 
 warranty of soundness. Lord Mansfield C.J., however (a.d. 1778), 
 ruled in Stuart v. Wilkins that there must be an express warranty of 
 soundness, which extends to all faults, known or unknown to the seller, 
 in order to maintain an action. If a seller warrant a horse sound, he 
 does it at his peril if the horse was not sound at the time of the sale, 
 whether he knew it or not (1 LoflFt. 14G). But jj^r Erskine J.: "Where 
 there is evidence of a warranty, the fairness of the price paid is a 
 circumstance tending to confirm that evidence " {Kiddell v. Burrmrd). 
 It need not be averred, nor if averred proved, that the defendant knew 
 of the unsoundness {WiUia)nson v. Allison). 
 
 In Salmon v. Ward, Best C.J. laid down t/ie distinction hctween a 
 representation and a tvarranty. Xo direct evidence had been given of 
 anytliing that passed at the time when the contract Avas made ; but 
 some letters were put in, one of them written by the plaintiff, which 
 contained these words, " You will remember that you represented the 
 horse to me as a five-year-old, &c. ; " and one from the plaintiff, in 
 which the defendant in answer, stated, inter alia, "The horse is as I 
 represented it." On this his Lordship observed : " The question is 
 whether I and the jury can collect that a warranty took place. I quite 
 agree that there is a difference between a Avarranty and a representa- 
 tion ; because a representation must be known to be false. No parti- 
 cular words are necessaiy to constitute a Avarranty. If it were so, there 
 Avould be more tricks in horse cases than there are at present. If a 
 man say.s, 'This horse is sound,' that is a warranty. If the jury found 
 that the representation alluded to in the letters occurred at the time of 
 the sale, and witiiout any qualification, then I am of opinion that it is a
 
 AVERMENT OF WARRANTY. 513 
 
 warranty. If it occurred before, or if it was qualifiad, then it must be 
 taken to be a representation, and not a warranty." 
 
 Lord Eldon Cli., in Geddes v. Pennington, held that if the horse 
 answered the warranty at the time of sale, a misrepresentation as to the 
 place from ivhich it icas procured does not suffice to set aside the sale, 
 though it might be a material consideration with respect to costs ; and 
 the judgment of the Scotch Court of Session, where three out of five 
 judges held that the accident was not owing to vice in the horse, but 
 lack of skill in the driver, was affirmed by the House of Lords, without 
 costs on either side. 
 
 On a motion for a nonsuit in Cave v. Coleman, the Court of Queen's 
 Bench held that the simple words, " You may depend upon it that the 
 horse is perfectly quiet and free from vice^' spoken hy the defendant in the 
 course of dealing, and before the bargain teas complete, was sufficient to 
 support an averment of warranty, although the word "warrant" was 
 not used. In Dunlop v. Waugh, where a horse sold as an eight-year- 
 old proved to be fourteen, but the defendant showed the written 
 pedigree at the sale, and said that he knew no more, as the mark was 
 out of his mouth, Lord Kenyon C.J. ruled that this clearly was no 
 Avarranty, as the defendant told all he knew, and entered into no express 
 undertaking that the horse was of the age stated in the pedigree. So 
 in Anderson v. Rohson, which was an action for the price of a horse 
 which had thrown a spavin, and evidence as to warranty went to show 
 that plaintiff had merely said, on defendant's making inquiry, that the 
 horse was " sound as far as he knew," and he had not previously dis- 
 covered anything the matter with him, Gresswell J. held that there was 
 no warranty, and the plaintiff had a verdict. This case differed mate- 
 rially from Wood v. Smith, where, although the defendant at the time 
 of the sale said, " The mare is sound to the best of my knowledge, but 
 I never warrant ; I would not even warrant myself," it was proved that 
 he knew her to be unsound at the time : and hence the Court of Queen's 
 Bench refused a nonsuit. Bayley J. observed : " The general rule is 
 that whatever a person represents at the time of a sale is a tvarranty. But 
 the party may either give a general warranty, or he may qualify that 
 warranty. By a general warranty a person warrants at all events ; but 
 here the defendant gives a qualified warranty, as he only warrants the 
 mare sound for all he knows. This is a qualified warranty, and the 
 purchaser may maintain assumpsit on it, if he can show that the horse 
 was unsound to the knowledge of the seller." 
 
 It was ruled by the Court of Queen's Bench in Hort v. Lord Neicry 
 that, although a person may disclaim against making a warranty of a 
 horse, yet if he give him a character for a particular quality, as by saying
 
 54-4 WARRANTY OF " CLEVER HACK.' 
 
 that he is quiet in harness, and do it in sncli a manner as reasonably to 
 make an impression on the mind of the buyer that he is generally quiet 
 in harness, he will be bound by that representation ; and if it is not 
 true, an action will lie to recover bacli the price of the horse. And^^er 
 Curiam : " In this case the defendant, knowing that the witness had 
 been requested to speak to him to give a character of the horse, asserts 
 that he is quiet in harness. That description of the horse is carried on 
 to the plaintiff, who, relying upon it, buys him. Would any man of 
 common sense, to whom that communication was made, understand 
 that the defendant meant to convey an impression that the horse was 
 (jmeralhj quiet in harness, or only that he was quiet the last time he 
 drove him ? " 
 
 Warranti/ of horse heing " a cUvn hack " does not imply that it is 
 sound. — Cleohurij v. Tattersall was brought to recover from the defen- 
 dants, the well-known proprietors of the horse establishment at Hyde 
 Park Corner, the sum of £43, upon an alleged warranty of a horse, 
 purchased by the plaintifp at one of their public sales. It appeared 
 that the plaintiff, a solicitor, was on the 11th May looking over the list 
 of horses entered for sale the following day at Tattersall's. He saw a 
 horse, described in the catalogue as " a bay gelding, a clever hack and 
 hunter," and on the following day he went to the sale, purchased the 
 animal for 21 guineas, and rode it home to his residence at Bayswater, 
 when it " blundered" and stumbled twice during the journey; and on 
 the day after he sent it to Mr. Field, the veterinary surgeon, who 
 examined it, and gave a certificate that it was lame in both its fore-legs. 
 It was then returned to Messrs. Tattersall's, who refused to receive it, on 
 the ground that no warranty of soundness had been given, and that the 
 horse really was what it was described to be — " a clever hack and good 
 hunter." Witnesses were called to prove that the horse was in an 
 unsound state. Blackburn J. said that as a point of law he must 
 certainly rule that the description of the horse as " a clever hack" did 
 not amount to a warranty of soundness ; the only question for the jury 
 was whether, upon all the facts, they considered the horse entitled to be 
 described as "a clever hack." The jury considered that, from the 
 description, the plaintiff had a right to expect something difierent, and 
 they returned a verdict in his favour. A verdict was then taken for the 
 plaintiff, but judgment was stayed, the learned judge giving the defen- 
 dants leave to move to enter a nonsuit, in the event of the Court being 
 of opinion that he was wrong in law in his ruling with regard to the 
 contract. The defendants did not carry the point into a higher court ; 
 and we understand from them that the horse has gone well both as hack 
 and hunter since.
 
 UNAUTHORISED WARRANTY BY SERVANT. 545 
 
 Unauthorised tvarranfy Inj servant. — In Brady v. Tod (30 L.J. (N.S.) 
 223 C.P.), it was decided that the servant of a private owner entrusted 
 on one particnhir occasion, not at a fair or other public mart, to sell and 
 deliver a horse, is not therefore by law authorised to bind his master by 
 a, warranty ; but the buyer who takes a warranty in such a case takes it 
 at the risk of being able to prove that the servant had his master's 
 authority to give it. The defendant was not a horse-dealer, but a 
 tradesman residing in London, who also had a farm in Essex, which 
 was managed by his bailiff Greig ; and the latter, by the defendant's 
 authority, sold the horse in question to the plaintiflF, and, as the jury 
 found, with a warranty that it was sound and quiet in harness ; but it 
 was also proved that the defendant gave no authority to Greig to give 
 any warranty. The horse having turned out vicious in harness, the 
 plaintiff brought this action and recovered, leave being reserved to the 
 defendant to enter a nonsuit. And per Erie C.J. : " Upon this rule to 
 set aside the verdict for the plaintiff, and enter it for the defendant, on 
 the plea denying the warranty of a horse, the question has been, whether 
 the warranty by the defendant was proved. The jury have found that 
 Greig in selling the horse for the defendant warranted it to be sound 
 and quiet in harness. The defendant stated, and it must on this 
 motion be taken to be true, that he did not give authority to Greig to 
 give any warranty. 
 
 " The relevant facts are, that the plaintiff applied to the defendant, 
 who is not a dealer in horses, but a tradesman with a farm, to sell the 
 liorse ; that the defendant sent his farm-bailiff Greig with the horse to 
 the plaintiff, and authorised him to sell it for 30 guineas. The plaintiff 
 contends that an authority to sell and deliver imports an authority to 
 him to w^arrant. The subject has been frequently mentioned by judges 
 and text writers, but we cannot find that the point has been ever 
 decided. It is therefore necessary to consider it on principle. The 
 general rule that the act of an agent does not bind his principal, unless 
 it was within the authority given to him, is clear ; but the plaintiff 
 contended that the circumstances created an authority in the agent to 
 warrant on various grounds ; among others, he referred to cases where 
 the agent has by law a general authority to bind his principal, though 
 as between themselves there was no authority, such as partners, masters 
 of ships, and managers of trading business ; and stress was laid on the 
 expressions of several judges, that the servant of a horse-dealer or a 
 livery-stable keeper can bind his master by a warranty, though as 
 between themselves there was an order not to warrant. See Helyear v. 
 Hatvke (5 Esp. 72), Alexander v. Gibson (2 Camp. 555), and Fenn 
 v. Harrison (3 T. K. 759). We understand those judges to refer to a
 
 540 AUTHORITY OF AGENT TO BIND PRINCIPAL. 
 
 general agent employed for a princijial to carry on his Lnsiness, that is 
 the business of horse-dealing, in which case there would be by law the 
 authority here contended for. 
 
 " But the facts of the present case do not bring the defendant within 
 this rule, as he was not shown to carry on any trade of dealing in 
 horses. It was also, contended that a special agent without any express 
 authority in fact might have an authority by law to bind his principal ; 
 as where a principal holds out that the agent has such authority, and 
 induces a party to deal with him on the faith that it is so. In such a 
 case, the principal is concluded from denying this authority as against 
 the party, who believed what was held out, and acted on it {Pickering 
 V. Busl', 15 East, 38). But the facts do not bring the defendant within 
 this rule. The main reliance was placed on the argument that an 
 authority to sell is by implication an authority to do all that in the 
 usual course of a sale is required to be answered, and that therefore the 
 defendant by implication gave to Greig an authority to answer that 
 question, and to bind him by his answer. It was a part of this argu- 
 ment, that an agent authorised to sell and deliver a horse is held out to 
 the buyer as having authority to warrant. But on this point also the 
 plaintiff has in our judgment failed. 
 
 " We are aware that the question of warranty frequently arises upon 
 the sale of horses, but we are also aware that sales may be made with- 
 out any warranty or even inquiry about wan-anty. If we laid down for 
 the first time that the servant of a private owner entrusted to sell and 
 deliver a horse on one particular occasion is therefore by law authorised 
 to bind his master by a warranty, we should establish a precedent of 
 dangerous consequence. For the liability created by a warranty ex- 
 tending to unknown as well as known defects is greater than is expected 
 by persons inexperienced in law ; and as everytliing said by the seller in 
 the bargaining may be evidence of warranty to the effect of what he 
 said, an unguarded conversation with an illiterate man sent to deliver a 
 horse may be found to have created a liability, which would be a surprise 
 equally to the servant and the master. Wc therefore hold that a buyer 
 taking a warranty from such an agent as was employed in this case, 
 takes it at the risk of being able to prove that he had the principal's 
 authority, and if there was no authority in fact, the law from the cir- 
 cumstances does not in our opinion create it. 
 
 " When the facts raise the question, it will be time enough to decide 
 the liability created by such a servant as a foreman alleged to be a 
 general agent, or such a special agent as a person entrusted with the 
 sale of a horse in a fair or other public mart where stranger meets 
 stranger, and the usual course of business is for the person in posses-
 
 RECEIPT OF DOUCEUR BY AOENT FROM SELLER. 547 
 
 sion of the horse and appearing to be the owner to have all the powers 
 of an owner, in respect of the sale ; the authority may, under such 
 circumstances as are last referred to, be implied, though the circum- 
 stances of the present case do not create the same inference. It is un- 
 necessary to add, that if the seller should repudiate the warranty made 
 by his agent, it follows that the sale would be void, there being no 
 question raised upon this point." 
 
 Limiiation of parUcidar of horses sold. — Under a particular specifying 
 horses sold by the plaintiff to the defendant, the plaintiff cannot recover 
 the price of horses sold by the defendant for the plaintiff as his agent 
 (Holland v. Hoplcins). 
 
 Receipt of douceur hy agent from seller. — WUson v. Sfevetis was an 
 action against Mr. Stevens, a veterinary surgeon, for having kept for an 
 unreasonable time a horse which he had been employed by the plaintiff 
 to sell, and for having, when employed by the plaintiff to examine and 
 purchase a horse for him, bought an unsound horse, and received a 
 bribe of £5 from the seller for the same. The plaintiff, Mr. Wilson, 
 was recommended to the defendant as a man in whom he might safely 
 confide to purchase horses for him, and it was agreed that Mr. Stevens 
 should charge £2 2s. for each of such purchases. Several dealings took 
 place, some satisfactory, some otherwise, before the purchases of the 
 horses which were the subject of this action. The charge was two-fold, 
 and related to two horses. A horse was bought of Mr. Eice, for the 
 plaintiff, for £105. After some time, not being quite pleased with it, 
 Mr. Wilson sent it to the defendant for sale. It was kept by Mr. 
 Stevens for 113 nights without being sold, Mr. Wilson being absent 
 almost the whole of that time in Scotland. On his return, finding it 
 still in the stables, he took it away, and sent it to Lawrence's stables, by 
 whom it was sold in a very few days, for £G0. Mr. Stevens brought an 
 action against Mr. Wilson for the keep and care of this horse, which 
 Mr. Wilson resisted. It was tried at Guildhall, when it appeared that 
 no legal defence could be offered, and a verdict was given for the 
 plaintiff. 
 
 In the course of this trial, it came out that Mr. Stevens had received 
 £10 from Mr. Rice for selling this horse to the plaintiff; and there- 
 upon Baron JIartin told the jury that an agent had no right to 
 take a single farthing from the party with whom he was dealing ; that 
 it was a disgraceful and dangerous transaction; and, although they 
 could not reach it in that action, Mr. Wilson had another remedy ; and 
 he directed them to deduct the £10 so received from the amount 
 claimed by the plaintiff. Upon this Mr. Wilson made further inquiries, 
 and hence the present action. Mr. Stevens had previously bought for 
 
 N N 2
 
 548 ACTION AGAIXST AGENT FOR BREACH OF DUTY. 
 
 him another horse from a dealer named Sewell. At the time of the 
 l)urLhase, when trying it, Mr. Wilson was not quite satisfied with the 
 horse's movements, and especially with the contracted shape of the feet, 
 but Mr. Stevens said it was nothing, that the horse was sound and 
 right; and, relying upon that advice, Mr. Wilson bought it for £90. 
 It soon turned out to be a screw, and fell, and broke both its knees, and 
 three veterinary surgeons certified that it was unsound, with contracted 
 feet and diseased eyes of long standing. It was also sent to the de- 
 fendant himself for examination ; and, not remembering that it was the 
 very one he had put upon Mr. Wilson, he. also gave a certificate, which 
 was read, that it was lame and unsound, with diseased eyes, and that 
 these defects were of long standing. The horse was sent to Gower's and 
 sold for £51, Sewell himself being the buyer. 
 
 An action was brought against Sewell on his warranty ; and there- 
 upon Sewell paid the whole difference between the sum he received for 
 the horse, and that at which it had been sold, together with the costs. 
 Mr. Wilson then discovered that, for putting this horse upon him, Mr. 
 Stevens had received from Sewell the sum of £5. The present action 
 was brought for the breach of duty by Stevens in that, having been 
 employed and paid by Mr. Wilson to use his professional skill in the 
 choice of a sound horse for him, he had either negligently or ignorantly 
 bought an unsound one, and for having taken a bribe of £5 for so 
 doing. Mr. Stevens had received £10 for one horse, and £5 for another, 
 at the same time charging Mr. Wilson, as his professional adviser, for 
 buying these horses. Mr. Field's examination (he being ill) was read, 
 where he stated that, from the condition of the horse when he saw it, it 
 must have been in a diseased state five months before, such as any man 
 of ordinary professional skill ought to have detected, and Mr. Mavor 
 and another gentleman gave evidence to the same effect. 
 
 For the defence, it was contended that, as to the first charge, there 
 was proof that eveiy possible endeavour was made to sell the horse; 
 and, as to the second, that it was not proved that the unsoundness had 
 actually existed at the time of the purchase, or could have been then 
 discovered, and also that it was not proved that the horse seen by the 
 veterinary surgeons was actually Sewell's horse, and that the £5 was not 
 a bribe paid at the time, but a present made to Mr. Stevens afterwards 
 for his trouble. Witnesses were then called to prove this, and among 
 them tlie defendant himself, who admitted the receipt of the £10 from 
 Ptice and the £5 from Sewell, but added that he had returned the latter 
 after the action had been settled by Sewell ; and he also said that he 
 did not believe the horse for which he gave the certificate was the same 
 horse he hud bought for Mr. Wilson. Baron Martin told the jury
 
 DEFINITION OF BONE SPAVIN. 549 
 
 that upon the first charge they would exercise their own judgment 
 whether there was any proof that defendant had not made reasonable 
 endeavours to sell the horse. If they thought he had, he would be 
 entitled to their verdict on the first count. But the other, on which 
 the plaintiff mainly relied, was a much more serious matter, and he 
 would tell them at once that an agent, employed and piald to act for a 
 purchaser of anything, has no right whatever to receive a single farthing 
 from the seller. It was a transaction perfectly unjustifiable, and which 
 the plaintiff had acted most properly in bringing under the considera- 
 tion of a jury. He then went through the evidence, and left it to them 
 to say if they had any doubt that the horse seen by the veterinary 
 surgeons was the same horse, remembering that Sewell had actually 
 admitted it to be so by paying the loss upon it; and that if so satisfied, 
 they would give the plaintiff a verdict upon the second count, with such 
 damages as they thought proper ; and the damages to which he would 
 be entitled would be the inconvenience and cost he had reasonably been 
 put to, and which he had not recovered from Sewell, including the 
 £2 2s. which the defendant had received for the services he had failed 
 to render. The jury returned a verdict for the defendant on the first 
 count, and for the plaintiff on the second count, damages £5. His 
 Lordship immediately certified for costs and for the special jury, and 
 observed to the jury : Gentlemen, this was a very proper action to 
 bring, and a very proper verdict. It is just what I would have given 
 myself. 
 
 Loss of good bargain evidence of value. — Although no damages can be 
 recovered for the loss of a good bargain, the bargain would be evidence 
 of the value of tM horse supposing him to he sound {Clare v. Magnard). 
 
 Definition of lone spaviji. — " Bone spavin is a bony deposit on articu- 
 lating surfaces of joint. The term ' spavin ' really means the lameness 
 and not the disease. In splint especially, and in spavin, traces may 
 disappear and disease exist." 
 
 Responsihilitg of hirer of horse. — As between the lender and hirer of 
 horses, the hirer, in the absence of any custom in the trade, is only 
 bound to use reasonable care, to employ a competent coachman {Ahron 
 V. Fussell). 
 
 In the case of Head v. Tattcrsalt, 7 L. R. Ex. 7, the plaintiff bought 
 of the defendant, an auctioneer, a horse described in the catalogue as 
 having been hunted with the Bicester and Duke of Grafton's hounds. 
 The contract of sale contained a condition that " horses net answerinsr 
 the description must be returned before 5 o'clock on the following 
 Wednesday evening," the sale having taken place on Monday. The 
 horse had not in fact been hunted with either pack of hounds as
 
 550 BIDDING BY " PUFFERS " AT AUCTIONS. 
 
 described, and the plaintiff was told this before he had taken the horse 
 away by a groom who had had charge of the horse. Tiie plaintiff never- 
 theless took the horse away. On the road to the plaintiff's premises, 
 and while under the charge of plaintiff's servant, the horse took fright, 
 ran away, and was injured. The plaintiff thereupon returned the horse 
 as not answering the description before the Wednesday evening, and 
 brought an action to recover the value given. The jury found that the 
 plaintiff was induced to buy the horse by the warranty, and that the 
 injury sustained by the horse was not in any way caused by the 
 negligence of the plaintiff's servant, and a verdict was entered for 
 the plaintiff for the value of the horse. This verdict was upheld by 
 the Court of Exchequer. . 
 
 A bidder at a sale hy auction, under the usual conditions that the highest 
 bidder shall be the purchaser, may retract his bidding before the hammer 
 falls, as until then his offer is not assented to by the auctioneer as the 
 agent of the vendor {Payne v. Cave). "Where a sale is on these condi- 
 tions, and a horse is bid iq) by a puffer (here a servant of the owner, 
 who bid the horse up to 23 guineas after a bond fide bidder had bid 12 
 guineas), it was settled in Crowdcr v. Austin that the vendor has not an 
 action for the price against the last bidder, to whom it was knocked 
 down for 29 guineas. Best C.J. said that " such puffing was a gross 
 fraud, and that a seller had a right to have one person to bid for him at 
 a sale, but must declare it in the conditions. Here defendant was 
 entitled to have the horse at the next bidding to that of the only fair 
 bidder." A rule nisi to set aside the nonsuit was discharged without 
 argument, ParTce J. observing that " the opinion of Lord Mansfield in 
 Bexicell v. Christie is not a mere dictum, but a long elaborate judgment ; 
 and he was followed by Lord Kenyon C.J. in a case of Blachford v. 
 Preston ; and in Howard v. Castle. And it is now fully settled that 
 the vendor may employ one person to prevent a sale at an uncier-value, 
 provided it be not stated in the particulars or advertisements that the 
 sale is " ivithout reserve.'' But the employment of a single puffer when 
 the sale is '-without reserve" will avoid it at law {Thornett v. 
 Haines). 
 
 The conditions of sale by auction printed, and posted up under tJie 
 auctio7ieer's box, in a Repository, coupled with his declaration that the 
 conditions are as usual, constitute, according to Mesnard v. Aldridge, a 
 sufficient notice of them to purchasers. In that case, where a horse 
 was bought on Wednesday with a warranty of soundness, and one con- 
 dition was that all horses purchased there, in case of any unsoundness 
 being discovered, should l^e returned before the evening of the second 
 day after the sale, the return of a horse on Saturday was decided to be
 
 HORSE SOLD WITH ALL FAULTS. 551 
 
 too late, and the purchaser was deemed to have been cognizant of the 
 conditions, though they were not read over before the sale by the 
 auctioneer. And so in Smart v. Hyde, where a mare was sold under a 
 somewhat similar condition, at Lucas's Repository, and the defendant 
 pleaded to a declaration on a warranty of soundness that the sale took 
 place subject to that condition, and that the same was agreed to by the 
 parties, and that the notice and certificate of unsoundness were not 
 given within the time limited {i. e., before noon of the day after the 
 sale), the plea was held good, and not amounting to the general issue. 
 It admits the contract and promise ; but shows it to have been made 
 subject to certain rules, which had not been complied with. That was 
 clearly not a denial of the contract, as alleged in the declaration. 
 
 In Buchanan v. Parnshaiv a horse, warranted six years old and 
 sound, was discovered ten days afterwards to be twelve years old. The 
 Court of King's Bench held that the condition of sale— " That the 
 purchaser of any horse warranted sound, who should conceive the same 
 to be unsound, should return him within two days, otherwise he should 
 be deemed sound " — must be confined solely to the unsoimdmss ; and 
 that, as regarded that, it was a wise and reasonable one ; but that, as 
 the age of the horse was not open to the same difficulty, he ought to 
 have been taken back, and therefore the buyer might maintain an action 
 against the seller. And the buyer's right to recover was held not to be 
 aflFected by his having sold the horse, after offering him to the defen- 
 dant (/&.). The imsoimdness in By water v. Richardson was of a nature 
 not liJcely to he discovered (especially as he was shown on a bark ride at 
 Lucas's Repository) in the twenty-four hours, within which the buyer 
 had the option of returning the horse ; but still the Court of King's 
 Bench upheld the condition as not unreasonable, although it would 
 have been inoperative if the facts had shown any fraud or artifice in the 
 seller. In contracts of this nature, where a horse is "sold with all 
 faults," there is no fraud unless the seller by jwsitive means renders 
 it impossible for the purchaser to detect latent faults ; and the dictum 
 of Lord Kenyon C.J. in Hellish v. Jlotteux, that the seller is bound to 
 disclose such of the latter as have come to his knowledge, was expressly 
 overruled by Lord Ellenhoroucjh C.J., in Baylehole v. Walters, which 
 Lord Denman relied upon in Bywater v. Richardson. 
 
 The cjnestion as to whether a private ivarranty could he incorporated 
 into the conditions of sale at TattersalVs, where the well-known course 
 of business is, that horses sold there are not warranted unless a state- 
 ment to that effect is made in the catalogue, was very much discussed 
 in Hopkins v. Tanqueray, which was an action for alleged breach of 
 warranty. The defendant, in that case, had sent his horse California to
 
 55ii EFFECT OF PRIVATE WARRANTY. 
 
 Tattersall's, aud he was advertised to be sold there on Monday (May 30, 
 1853). On the previous Sunday the defendant saw the phiintiff, Nvhom 
 he knew, kneeling down in the stall to examine his horse's legs, and 
 said to him, "You need not examine his legs; you have nothing to look 
 for ; I assure you he is perfectly sound in every respect." To this 
 plaintiff replied, "If you say so, I am perfectly satisfied;" and imme- 
 diately got up. Next day the plaintiff, having, as he said, " made up 
 his mind on the 29th of May to buy him, relying on defendant's positive 
 assurance that he was sound," bought the horse for 280 guineas. The 
 horse broke down at his trainer's, and was sold for 144: guineas, and it 
 was sought to recover in this action the difference between that sum 
 and the price he was originally sold at. It was contended, among other 
 points for the defendant, that the conversation was not equivalent to a 
 warranty, but a mere representation of opinion and belief, which, in the 
 absence of fraud, gave no ground for an action ; and farther, that it was 
 no part of the contract under which the horse was sold on the Monday ; 
 and that the representation could not be incorporated into such con- 
 tract, it having been made on a Sunday. All idea of fraud was dis- 
 claimed. 
 
 Talfourd J. thought there was not any evidence of warranty, but de- 
 clined to nonsuit ; and the jury found, in reply to his lordship's ques- 
 tions — (1) That a warranty was embodied in the contract of sale and 
 (2) (though as to this the evidence was conflicting) that California was 
 unsound at the time of sale ; and gave a verdict for the plaintiff of 
 .£142 16s. The Court of Common Pleas held that there was no evi- 
 dence of a warranty, express or implied, to go to the jury ; as the con- 
 versation on the Sunday was a mere representation of what the plaintiff 
 hondfith believed to be the fact, and formed no part of the contract of 
 sale on the next day. Cressicell J., however, intimated his opinion that 
 if such representation had been made at the time of sale, so as to form 
 part of the contract, it might have amounted to a warranty. Maule J. 
 said in the course of the argument: "Assuming that the defendant 
 privately warranted his horse to the plaintiff before the sale, a very 
 serious question would arise, whether such a warranty could be en- 
 forced. Bo7id fide bidders, to whom the horse was not warranted, 
 might thus be induced to offer a higher price, supposing the plaintiff 
 to be bidding on the same footing as themselves. That sort of double- 
 dealing could hardly have been intended by either of these gentlemen. 
 Eacli would, in effect, be taking the chance of an advantage at the 
 expense of third persons." And 2wr Jervis C.J. : " It might be a 
 ground for setting aside a sale between the seller and a third person." 
 In the case of Chapman v. Gwijther (1 N.R. Q.B., 403) the plaintiff
 
 GENERAL RULE FOR HORSE-DEALING. 553 
 
 bought of the defendant two horses and the following memorandum 
 was signed by defendant at the time of sale : 
 
 "June Uh, 1865. 
 
 "Mr. Chapman bought of Mr. G. Gwyther, a brown horse six years 
 old, warranted sound, for £180 : also a bay horse five years old 
 for £90. Warranted sound. 
 
 " George Gwyther. 
 " Warranted sound for one month. 
 
 "George Gwyther." 
 
 It was held that the latter words limited the duration of the warranty. 
 The general rule for horse-dealing was thus laid down by 3IauJe J. in 
 Keates v. Earl Cadogan : " If a horse-dealer contracts to sell a gentle- 
 man a horse fit to carry him, and he sells him one which he knows to 
 be unfit for the purpose, he does not perform his contract. But if a 
 man buys a horse generally, the seller will not be responsible, although 
 knowing that his customer wanted the horse for his own riding, he sells 
 him one which will not carry him." If there has been a parol agree- 
 ment, which is afterwards reduced by the parties into writing, that 
 writing must alone be looked to, to ascertain the terms of the contract ; 
 but where, as in Allen v. Pinlc, the plaintiff merely received the following 
 memorandum from the seller : — ■ 
 
 " Bought of G. Pink a horse for the sum of £7 2s. Qd. 
 
 "G. Pink," 
 
 and brought an action to- recover back the price he had paid for the 
 horse, which proved unruly and vicious in harness, he was allowed to 
 give parol evidence of a warranty given him by the defendant at the 
 time of the sale, to the effect that he was a quiet worker, and would go 
 well in spare harness. A fraudulent representation at the time of sale in- 
 validates the ivarranty ; though it does not relate to any point included 
 in it; and in Steward v. Cocsvclt, where the written warranty was 
 simply to the effect that the horse was ''sound, and free from vice," 
 Burrough B. admitted, as general evidence of fraud, that the horse 
 was represented at the time of sale as five off, whereas he was only 
 rising five. But Geddes v. Pennington is an authority to show that 
 if the warranty is answered, a mere trivial misrepresentation as to the 
 place from which the horse was procured would not suffice to set aside 
 the sale. A representation must he Icnown to he false ; and hence where 
 as in Dickenson v. Gapp^ the receipt ran thus : —
 
 554- WHAT CONSTITUTES WARRANTY. 
 
 ** Sept. 7. Eeceived of Robert Dickenson £100 for a bay gelding got 
 by Cheshire Cheese, and warranted sound," 
 
 and according to the evidence on an action of breach of warranty of 
 breed, the gelding was not got by Cheshire Cheese, but the defendant 
 believed it was, Dallas C.J. considered it to be a representation merely, 
 and that the warranty was confined to the soundness. 
 The warranty in EicMrdson v. Brown, ran thus :— 
 
 " To be sold, a black gelding, five years old. Has been constantly 
 driven in the plough. Warranted:' 
 
 The plain tiflf proved him sound, and got a verdict for the price ; and 
 a rule for a nonsuit on the ground that the warranty referred to the 
 horse's previous employment, wliich the plaintiff" ought to have proved, 
 was refused by the Court of Common Pleas, and the warranty was held to 
 apply to the soundness only. Both these cases were referred to, as being 
 directly in point by Tindal C.J. in his judgment in Buddy. Fairmener, 
 which was an action to recover the expense of keeping a grey colt for 
 a year, which, as plaintiff" contended, had been warranted to him by 
 defendant as a four-year-old when it was only three. The receipt was 
 to this effect : — 
 
 « Received, August 4, 1830, of Mr. Budd, ten pounds for a grey four- 
 year-old colt, warranted sound in every respect. 
 
 " John Fairmener." 
 
 TindaJl C.J. directed a nonsuit, and said, " The first part of the receipt 
 contains a representation, and the latter part a warranty. In the case 
 of a representation, to render liable the party making it, the facts 
 stated must be untrue to his knowledge ; but in the case of warranty, 
 he is liable, whether they are within his knowledge or not." The Court 
 of Common Pleas discharged a rule 7iisi for setting aside the nonsuit, 
 and Ahkrson J. said : " A ivarrantij must be complied wil/i, whether it is 
 material or not ; hut it is othenvise as to a repi'esentation. As at present 
 advised, if the word ivarranted had been the last word, I should have 
 held that it extended to the wiiolc. But here I think it is confined to 
 the soundness only." 
 
 " If the servant of a horse-dealer with express directions not to warrant 
 do warrant, the master- is hound ; because the servant having a general 
 authority to sell is in a condition to warrant, and the master has not 
 notified to the world that the general authority is circumscribed"— 
 per Bayleij J. {Pickcrimj v. Busk). And the rule is the same as regards
 
 WARRANTY BY SERVANT. 555 
 
 the servant of a livery stable-keeper— ;7er Ashurst J. {Feim v. Harrison); 
 but if the owner of a horse tvere to send a stranger to a fair with express 
 directions ?iot to warrant the horse, and the latter acted co7itrary to the orders, 
 the purchaser could only have recourse to the person who actually sold 
 the horse, and the owner would not be liable on the warranty, because 
 the servant was not acting within the scope of his employment {ib). 
 
 It was expressly laid down by Lord Ellenhoroufjh C.J., in Alexander 
 V. Gibson, where the defendant's servant swore that he was expressly for- 
 bidden hj his master to giveaivarranty, and denied that he had given one, 
 while another witness said that he had warranted the horse " sound all 
 over;" that if a servant is authorized to sell a horse and receive the 
 stipulated price, he is impliedly authorized to give a warranty of 
 soundness which will bind his master, and that it is enough to prove 
 that he gave it, without calling him or showing that he had any 
 special authority to do so. His lordship ruled, in Helyear v. Hawhe, 
 that ivhat a servant has said respecting the horse at the time of the actual 
 sale, as part of the transaction of selling, is evidence against the 
 principal, but not what he may have said at another time; and 
 further, that being entrusted to do all that he can to effectuate the 
 sale, he binds his master even if he exceeds his authority. And see 
 Irving v. Motley. Erskine J, also declined to receive evidence in Allen 
 V. Denstone, that defendant's son said on the day of the sale, in answer 
 to a question about the price, that he would warrant the horse all 
 right except being a whistler, as it was a mere conversation with a 
 stranger, and not a statement made in the course of the bargain. His 
 lordship said: " It might have been admissible if it had been shown 
 that, in offering the horse for sale, the defendant's son had offered to 
 give a warranty, as that would have been a statement accompanying 
 an act done in the course of his agency;" and after a verdict for 
 the defendant, the Court of Common Pleas refused a new trial. 
 
 The general rule in selling a horse hy a servcmt or agent is thus stated 
 in Oliphanfs Law of Horses, 2nd ed., page 105 : " The master or owner 
 is bound by a warranty given by his servant or agent at the time of 
 sale, without his consent, and even against his express direction; and 
 the only exception is the case of the agent of a person, who is neither 
 a horse-dealer, or stable-keeper, warranting a horse in spite of the ex- 
 press orders of the owner to the contrary ; and then if the principal is 
 unwilling to stand by it, he should at once offer to rescind the con- 
 tract." 
 
 The case of a warrant g hg a servant ivho was merely entrusted to de- 
 liver a horse was lully considered by the Court of Exchequer in Woodin 
 V. Burford, which decided that a warranty of a person, in this case a
 
 556 REFUSAL OF MASTEFv TO CONFIRM WARRANTY. 
 
 servant, who is merely authorized to deliver a horse, does not bind the 
 principal ; and that in an action on the warranty, the seller is not bound by 
 the statements or receipt of the servant, as no express authority to give 
 the wai-ranty was shown. Bayley J. said : " What is said by a servant 
 is not evidence against the master, unless he has some authority given 
 him to make the representation; and the question here is whether there 
 is reasonable ground for inferring such authority. It is quite clear 
 that before the time when the horse was delivered to the plaintiff, and 
 the receipt was given, there had been a bargain between tlie defendant 
 and the plaintiff, and all that the servant was directed to do was to take 
 the horse to the plaintiff and receive the money. It seems to me that, 
 althou!;h a warranty given by a person entrusted to sell p-imCi facie 
 binds the principal, yet the warranty of a person entrusted merely to 
 deliver is not prima facie binding on the principal, but an express 
 authority must be shown, which was not done here." Jordan v. Nor- 
 ton is also an author ity to show tluit where an agent is merely instructed to 
 receive and pay for a horse if a certain ivarranty is given, and he brings it 
 home without one, the principal may repudiate his ad, and return it tvithin 
 areasonahJe time. 
 
 The rule of laiv as to a master taJcifig hade a horse, and returning the 
 money if he will not stand to a ivarranty improperly given hy his servant, 
 was thus touched upon by Lord Ahinger C.B., in Cornfoot v. FoivTce-. 
 " Put," said his lordship, " the ordinary case of a servant employed 
 to sell a horse, but expressly forbidden to warrant him sound: is it 
 contended that the buyer, induced by the warranty to give ten times 
 the price which he would have given for an unsound horse, when he 
 discovers the horse to be unsound, is not entitled to rescind the con- 
 tract ? This would be to say that though the principal is not bound 
 by the false representation of an agent, yet he is entitled to take ad- 
 vantage of that false representation for the purpose of obtaining a 
 contract beneficial to himself which lie could not have obtained with- 
 out it." 
 
 If an agent is guilty of fraud in transacting his principiaVs business, the 
 irrincipal is responsible; and where a principal claims the purchase- 
 money by virtue of a contract made for him by his agent, which was 
 defeasible by reason of fraud, and is put an end to by the vendee, the 
 a'J'ent holds the purchase-money as received to the use of the vendee. 
 This was the tenor of the decision in Murray v. Ma?in, which was an 
 action by a livery-stable keeper for the keep of a horse, to which the de- 
 fendant pleaded a set-off for money received by the plaintiff for his use. 
 The defendant had sent the horse to the livery-stables of the plaintiff, 
 where it stood for some time, and was sold for £125, with a warranty
 
 SUING AUCTIONED FOR PURCHASE-MONEY RETURNED. 557 
 
 that it was sound and free from vice. The purchaser returned the 
 horse in three weeks as unsound, and got back from the plaintiff the 
 £125, the amount which the defendant sought to set-ofF, on the 
 ground that it was received for his use by the plaintiflF. The jury- 
 found for the plaintiff, and the Court of Exchequer refused a new 
 trial. 
 
 This case governed the decision of the Court of Queen's Bench in 
 Stevens v. Legh, where an auctioneer ivas sued for the ^purchase-money of a 
 horse, ivMch he had returned to the vendee after the fraudulent misrepre- 
 sentations which he had been employed by the plaintiff to maJce had been 
 discovered. The plaintiflF, a horse-dealer in Bristol, had here instructed 
 the defendant to sell a horse for him, representing to him that it was a 
 useful horse, &c., and accustomed to harness work, but that he was not 
 to warrant it. The defendant sold it and represented it as such ; and 
 the purchaser afterwards rescinded the contract, on the ground of fraud, 
 as the horse proved worthless, and gave the defendant notice not to pay 
 over the purchase-money to the plaintiflF; and it was held by the Court 
 that these facts afForded the defendant a good defence, and they refused 
 to disturb the verdict. 
 
 The case of Foster appt. v. Rev. W. Smith resp., which was one of 
 money had and received for the price of a mare sold by defendant to 
 plaintiflF, and afterwards returned, was very complicated, fi'om the con- 
 flict of evidence as to whether the agent had really warranted the mare, 
 and on whose account he received her when she was returned. The 
 plaintiflF had purchased the mare from Sparrow, a veterinary surgeon at 
 Cambridge, for £44 ; and stated that at the time of sale he said to 
 Sparrow, " I suppose she is all right," and received, as a reply, *' If 
 there is anything not right, she is not yours ; she belongs to the Rev. 
 Mr. Smith, of Drayton, who is not the man to do anything wrong." 
 This Sparrow denied, in his examination ; and said that he told plain- 
 tiflF the defendant never warranted, it was his iiabit never to do so, but 
 that he (S.) believed the mare to be perfectly sound, and that if he mis- 
 represented her he would take her back. Sparrow paid over the £44 
 to the defendant, who acknowledged to having received it ; and in 
 about nine weeks the mare was returned to Sparrow, whose evidence 
 was to the eflFect that he got her then to try and sell for the plaintiflF, 
 while the latter said that he got her for the defendant ; but there was 
 no evidence that the defendant had assented to or knew of the return of 
 the mare, or taken any part in these transactions. 
 
 The defendant said he had employed Sparrow to sell eight horses for 
 him before in the course of fifteen years, and had over and over again 
 repeated to him that he never would warrant a horse, and he was not
 
 558 PLEA FOR BREACH OF WARRANTY. 
 
 to do it for liim, but he gave no particnlnr orders about this mare. 
 The judge of the County Court left these questions to the jury: 1, Was 
 the mare sound or unsound at the time of sale ? 2, Was there a war- 
 rauty given by Sparrow to the plaintiff? 3, Was the warranty given 
 by the defendant's authority ? and 4, When the mare was sent back to 
 Sparrow, was she received by him for the plaintiff' or defendant ? The 
 jury found that the mare was unsound ; that a warranty was given, but 
 not by defendant's authority, and that she was received by Sparrow on 
 the defendant's account ; and the judge, considering the finding to be 
 ambiguous, ordered the verdict to be entered for the defendant. The 
 Court of Common Pleas directed a new trial with costs (which are 
 always granted to the successful party on an appeal from the County 
 Court) ; and j-j^r Jem's C.J. : " The proper question for the jury was 
 whether it was part of the contract that the mare should be returned if 
 she proved to be unsound. If so, and she were returned, there would 
 be a failure of consideration, and the plaintiff" would be entitled to 
 recover back the price." The case went down again, and the plaintiff 
 had a verdict. 
 
 In an action on a bill given for the price of a horse sold under a 
 warranty, t?ie breach of the warranty is an answer to plaintiff's demand, 
 if the defendant has tendered the horse McTc., though the plaintiff did not 
 accept it {Lewis v. Cosgrave). "Where the buyer of a horse with a war- 
 ranty resells with a warranty a horse which proves unsound, and being 
 sued thereon offers his vendor the option of defending, but in conse- 
 quence of receiving no answer defends it himself, and fails, he may 
 recover these costs from his vendor as part of the damage occasioned 
 by his breach of warranty (Lewis v, PeaTce) ; but he cannot recover 
 such costs, if he could have discovered the breach of warranty by a 
 reasonable examination before the resale (Wrighfup v. Chamberlain). 
 In Clare v. Maynard, however, where the vendee, who had purchased a 
 horse for £45 with a warranty of soundness, and sold it to Mr. Collins for 
 £55, was obliged to repay the latter his money, and take the horse back, 
 in consequence of its proving unsound, the Court of Queen's Bench, on 
 a motion for a new trial, laid down that a claim of compensation for a 
 good bargain could not be allowed as damages in an action. 
 
 A warranty need not have an agreement-stamp, and comes within the 
 exception in the schedule of 55 Geo. III. c. 184, as it is "a memoran- 
 dum letter of agreement relative to the sale of any goods, wares, and 
 merchandize ; " and it was held by Lord Ellenhorough C.J. that a 
 receipt for the price of a horse containing a warranty of soundness may 
 also be read in evidence, to prove the warranty, without an agreement- 
 stamp {Slcrine v. Elmore). But the fact of a receipt containing a
 
 PARTNERSHIP IN A HORSE. 559 
 
 warranty is not always conclusive evidence ; and ib was held not to be 
 so where the warranty was introduced into the receipt by an after- 
 thought of the defendant's coachman, and signed by the plaintiff, who 
 was merely a marksman {Fairmaner v. Budd). 
 
 The following " memorandum of agreement between "William Short 
 and William Brooke — which is, the horse to be £34, William Brooke 
 to have half at <£17, and to pay half the horse's expenses being with 
 Job Marson from his arriving at Malton, Feb. 1, 1831, &c.," and duly 
 signed by the parties, was decided on the authority of Venning v. Leclcie 
 to be an agreement for an undivided moiety of a horse within the above 
 exception in 55 Geo. III. c. 184, and not to require a stamp {Marson v. 
 Shm^t). The question of partner shij) in a horse was very much discussed 
 in French v. Stijring, where the plaintiff and defendant, being partners 
 in a horse (Census), agreed that the plaintiff should have the entire 
 management of it, and that the expense of the keep, training, and 
 running him should be borne, and his winnings should be shared by 
 both equally. The horse won nothing ; and the plaintiff having paid 
 the whole of the expenses, it was held that even if a partnership existed 
 between the plaintiff and the defendant in the management and running 
 of the horse, half the sum expended by the plaintiff was in the nature 
 of an advance by him of capital on behalf of the defendant, and which 
 he was entitled to recover from the defendant. And semlle per Coclcburn 
 C.J., that the agreement constituted a partnership between the plaintiff 
 and the defendant ; and per Wiltes J., that it was rather an agreement 
 between two tenants in common (who had acquired a title to the horse 
 at different times and by different contracts) as to the management of 
 their common property, than a partnership. 
 
 In an action on a warranty (Cotlins v. Jenhins), a letter written by 
 plaintiff's attorney in Middlesex, apprising the defendant of the breacli 
 of the warranty, and that the horse was standing at livery at the 
 defendant's expense, coupled with an admission in Middlesex by 
 defendant's agent of the receipt of such letter, was held sufficient to satisfy 
 an undertaking to give material evidence of some matter in issue arising in 
 that county. Tindal C.J. said : " It appears to me that this case is 
 determined by that of Curtis v. Drinhwater. The letter written by the 
 plaintiff's attorney was material to a point in issue, since its object was 
 to increase the damages. The proof that such a letter was written in 
 the county of Middlesex, coupled with the admission by defendant's 
 agent in the same county of its having been received, was according 
 to the principle of that case a compliance with the plaintiff's under- 
 taking. 
 
 In Greenwag v. Titchmarsh, where the venue had been clianged from
 
 560 TROVER FOR A HORSE. 
 
 "Middlesex to Herts on the ordinary affidavit, and brought back again, 
 the question \Yas wliether the horse had been bought by a person named 
 Grout on his own account or as agent for the plaintiff. Grout had 
 bought the horse of the defendant at Biggleswade Fair (Feb. 13, 1840) 
 witli a warranty, and told him at Royston Fair, on March 4th, that the 
 horse was unsound, and he must take him back. On March 5, the 
 plaintiff's attorney wrote in Middlesex a letter, posted in London, telling 
 defendant of the unsoundness, and saying that, unless the price was re- 
 turned, the horse would be sold, and he would become liable for the 
 difference. After this the horse stayed for some days at Grout's, in 
 Surrey, and food and stabling were paid for by the defendant at Enfield, 
 in Middlesex. On March 11th, the horse was sold by the plaintiff ; and 
 in an action for the difference between the two sales and the expenses of 
 the keep and resale, it was held, on the point being reserved, that pay- 
 ment in Middlesex of the keep of the horse after notice of unsoundness 
 was sufficient to satisfy the undertaking, as such evidence was material 
 to the damages. And per Parlce B. : " The case of Collins v. JenMns 
 shows that the evidence to be given under an undertaking like the 
 present is not confined to the mere issue in the cause, but includes also 
 the question of damages, which are to be considered for this purpose as 
 a matter in issue between the parties. Here part of the amount claimed 
 and recovered by the plaintiff was paid in Middlesex, and that payment 
 was good evidence on the question whether the sum claimed was a 
 reasonable amount or not. If the case had stood merely on the letter, 
 there would have been considerable doubt." 
 
 It was observed by Jervis C.J., in Read v. Fairlanlcs, that " in ordi- 
 imry cases of trover for a horse, ihe plaintiff recovers the value of the horse, 
 and not tchat it might have earned desides." Maule J. mentioned a case 
 of trover for a cow, where the value not only of the cow, but also of her 
 milk, was claimed; and added, "I rather think that the value of the 
 thing at the time of the conversion is all that can be recovered." And 
 again, on the question of damages, his lordship said : " Although it be 
 true that in trover the owner may recover for the conversion of the 
 improved chattel, it does not follow that he is entitled to recover the 
 improved value as damages. Tlte j)ropei' amount of damages is the 
 amount of pecuniary loss which the plaintiffs have been put to by the 
 defendant's conduct. My brother Parhe has said that a plaintiff may 
 recover special damages in trover. That was where money had been 
 necessarily laid out in consequence of a conversion (/?>.)." The case 
 alluded to by the learned judge was that of Davis v. Osicell, which was 
 one of trover for a pony value £lo, and the special damage alleged in 
 the declaration was that after the conversion of the pony by the defend-
 
 WARRANTY OF A HORSE ".SOUND AND QUIET IN HARNESS." 561 
 
 ants the plaintiff was obliged to hire other horses instead. Parhe B. 
 ruled that special damage may he recovered in trover if it is laid in the 
 declaration, but that where no such special damage is laid the value of 
 the article at the time of the conversion is the measure of damages. At 
 his lordshij^'s recommendation, however, it was agreed that the plaintiff 
 should have the expense of the hire of other horses, less the keep of his 
 own pony during the time, and the plaintiff abated some part of his 
 demand, and consented to a verdict of £25. A rule to show cause why, 
 on defendant delivering up to plaintiff a horse for which he had brought 
 trover, and paying his costs, all further proceedings should not be 
 stayed on an affidavit that the animal was not in a worse state than 
 when he came into the possession of the defendant, but in an improved 
 condition, was discharged, on cause shown, with costs {Makinson v. 
 RawUnson). 
 
 Where A had wrongfully, and without the licence of B, ridden his hoise, 
 and so caused his death, a promise by a third person to pay the damages 
 thereby sustained, in consideration that B would not bring an action 
 against A, is a collateral promise within the Statute of Frauds, and 
 must be in writing {Kirkliam v, Ilarter). But an agreement to sell a 
 mare on condition that if she prove in foal she should he returned to the 
 vendor on the payment of a certain sum, is not a distinct agreement for 
 the resale of the mare within the scope of the statute, but a mere quali- 
 fication of the original contract of sale which was executed, and need not 
 be in writing ( Williams v. Burgess). 
 
 A tcarranty that a horse is " sound and qtiiet in harness " was ruled by 
 Lord Ah'inger C.B., in Smith v. Parsons, to be supported by proof that 
 the defendant verbally warranted the horse to be " perfectly sound and 
 quiet in all respects," as the latter phrase includes the going quiet in 
 harness. A somewhat similar case, of Coltherd v. Puncheon, had been 
 decided previously in the Queen's Bench, where the plaintiff had a 
 verdict on a warranty that the horse was " a good drawer, and ivould 
 pull quietly in harnessy The defendant moved to set it aside, on the 
 ground that being " a good di'awer" (which appeared by the evidence) 
 and "pulling quietly in harness" were not convertible terms. The 
 Court, however, held that they were, " because no horse can be said to 
 be a good drawer if he will not pull quietly in harness; and therefore 
 proof that he is merely a good puller will not satisfy the warranty. 
 The word ' good ' must mean ' good in all particulars.' " 
 
 Where the plaintiff declared that in consideration of his re-delivery 
 to the defendant of an unsound horse, the defendant promised to deliver 
 to him another horse whicli should be worth £80, and be a young horse, 
 and a breach was assigned in both those respects, it was held no 
 

 
 562 DEALING ON SUNDAY. 
 
 variance, tliongli it was proved that the defendant also promised that 
 the horse was sound {Miles v. Sheirard). 
 
 It was ruled by the Court of Common Pleas with regret in Dmry v. 
 De la Fontaine, that where neither the vendor nor his agent in the sale 
 of a horse were working within their ordinary calling on a Sunday, the 
 sale must be held good. The plaintiff was a banker, who had sent his 
 horse for sale to the repository of one Hull, a horse- auctioneer, who 
 was not therefore acting within his ordinary calling when he sold the 
 horse to the defendant by private contract. In Bloxsome v. Williams, 
 the defendant was a coach-proprietor and dealer in horses ; and the 
 plaintiff's son verbally agreed one Sunday, as he was travelling on his 
 coach, to buy a horse from him for 39 gs., on a warranty that it was 
 sound and rising seven. No earnest was given ; and on the next Tues- 
 day the price was paid, apd the horse, which proved to be unsound and 
 seventeen, was delivered. There was no proof that the plaintiff or his 
 sou knew that the defendant was a horse-dealer ; and Park, J. overruled 
 the objection of the latter, that the contract being made on a Sunday 
 came within the 29 Car. II. c. 7, s. 2. The Court upheld the verdict 
 for the price of the horse, on the ground that this was not a sale on a 
 Sunday ; and that if it was so, it did not appear that the plaintiff was 
 privy to the fact of this being the defendant's ordinary employment ; 
 and that as the defendant was the only person acting illegally, it did 
 not lie in his month to make the objection on the statute, and thereby 
 take advantage of his own wrong. 
 
 The bargain in Williams v. Paul, where the plaintiff, a drover, sold 
 three cows and a heifer to defray his expenses during a journey from 
 Sussex to Wales, was made on a Saturday night, subject to the defen- 
 dant's approval next morning. The four were approved of and left, but 
 were not paid for at the end of the three months, as agreed on ; and 
 Bayley J. considered that the defendant having kept the beasts, and 
 subsequently promised to pay, was liable for the value upon a quantum 
 meruit, though not for the price agreed upon by the bargain completed 
 on Sunday. On these grounds, although the Court considered that it 
 was a Sunday contract, because the bargain on Saturday was incomplete 
 till the beasts were inspected, they refused to enter a nonsuit. 
 
 The objection under the statute in Fennell v. Ridlcr was of a novel 
 kind. The plaintiffs were horse-dealers, and objected that the statute 
 did not apply, as their contract with the defendant, an innkeeper, who 
 had given them a warranty, was made witJdn his own yard icith closed 
 gates, and in the presence of the parties and their servants only ; and 
 under the direction of Park J., they had a verdict. The Court, how- 
 ever, considered that the case was strictly within the scope of the words
 
 SUSPICION OF UNSOUNDNESS INSUFFICIENT. 5G3 
 
 of tlie statute " exercising himself in the duties of piety aud true re- 
 ligion publicly and privalehj" and made the rule absolute for a new 
 trial. But where a farmer kept a stallion, and covered mares with it 
 on a Sunday, the contract was not held void under the statute, as it was 
 not done in the "exercise of his ordinary calling"; but even if it were, 
 the contract having been executed, he had a lien on the mare if the 
 covering fees were not paid {Scarfe v. Morgan). But quitre whether the 
 statute 29 Car. II. c. 7 avoids a previous parol contract for the sale of 
 goods, where the delivery and acceptance take place on a Sunday {Beau- 
 mont V. Brengeri). 
 
 A farmer is not wathin the Sunday Trading Act, 29 Car. II. c. 7, s. 1, 
 Queen v. Silvester 33 L.J. (N.S.) M.C. 79. The appellant, a farmer, 
 was convicted and fined for haymaking on Sunday, but the Court of 
 Queen's Bench on appeal quashed the conviction. 
 
 It is not sufficient, on a trial of ivarranty, for the plaintiff to give such 
 evidence as to induce suspicion that the horse is unsound ; if he only 
 throws the soundness into doubt he cannot recover, he must positively 
 prove the horse unsound at the time of sale. And hence in Eaves v. 
 Dixon, where the horse died a few days after the sale, and on dissection 
 veterinary surgeons gave it as their opinion that inflammation of the 
 lungs might lead to mortification in three days, and that if the inflam- 
 mation had existed at the time of the sale there would have been thick 
 breathing, and the plaintiff had a verdict on the warranty, the Court 
 directed a nonsuit. A ivarranty only refers to the state of a thing at the 
 time of sate ; but it may, as in Liddard v. Kain, become a continuing 
 warranty. There defendant remarked at the time of sale that one of 
 the pair of horses he purchased had a cough and nose-running, and said 
 in reply to the plaintiff"s assurance that he would be well in a week, 
 that he would not take him unless the plaintiff" would let him stand in 
 his stable for a fortnight. To this the latter assented, and said, " I 
 will deliver both the horses at the end of the fortnight, sound and free 
 from blemish." At the end of that time one still had a cough, and the 
 other a swollen leg, and was lame and blemished from a kick in the 
 stable. The jury found for the defendant in an action for the price, 
 and the Court refused to disturb the verdict. The plaintiff" had agreed 
 to deliver up both horses at the end of the fortnight, sound and free 
 from blemish ; and the warranty, therefore did not apply to a mere 
 unsoundness at the time of sale, but was a continuing warranty to the 
 end of the fortnight. And where, as in Simmonds v. Garr, an agent 
 for the sale of horses sold a horse of the defendant's and another of a 
 third person's to the plaintiff" at the same time, at an entire price of 
 90gs., and warranted both to be sound. Lord Ellenlorough C.J. held
 
 564 WHAT CONSTITUTES UXSOUNDNESS. 
 
 that the plaintiff had no action of assumpsit against the defendant 
 for the unsoundness of the horse which belonged to him, declaring as 
 upon a sale of one horse, since the contract concerning the two was 
 entire. 
 
 The doctrine as io ii-lutt consiiltdes wisoumhiess was very early laid 
 down by EUeiibwough C.J. in Elton v. Brogden, where the defendant 
 allowed that the horse was lame at the time of the sale, but said that 
 such lameness was only temporai'y, and that he was noiv quite sound. 
 His lordship said, " I have always held, and now hold, that a warranty 
 of soundness is broken if the animal at the time of the sale had any 
 infirmity \\\)ou him which rendered him less fit for present service. It 
 is not necessary that the disorder should be permanent or incurable. 
 Whilst a horse has a cough I say he is unsound, although that may be 
 either temporary or may prove mortal. The horse in question ha^'iug 
 been lame at the time of the sale when he was warranted to be sound, 
 his condition subsequently is no defence to the action." In Etton v. 
 Jordan, where a witness for the defendant admitted that he had 
 landaged one of the horse's forelegs ~beccwse it teas ivcaker than the other, 
 his lordship repeated this definition. It was, however, laid down by 
 Coleridge J. in Boldm-o v. Brogden, that if a horse were sold with any 
 ailment on him which might be reasonably expected to give way to 
 f-light medical treatment, and to leave behind it no seeds of future 
 disease, he was not unsound within the meaning of a warranty. This 
 decision, and one to the contrary effect by Parlce B. in Coates v. Stevens, 
 were both brought under review in Kiddell v. Barnard in the Court of 
 Exchequer, and the question finally settled. 
 
 The above was an action of assum[)sit to recover back the money for 
 three hidlocl^s which hcul Iccn ivarrantcd sound. Adam Bryant, a man 
 in the plaintiff's employ, had purchased them for him at Lew Down 
 fair, in Devon, for £40, a fair price if they had been sound. At the 
 time of the sale Bryant had complained of the badness of their colour; 
 and the defendant said, " I will warrant them sound." It was also 
 proved by witnesses that all three appeared more or less unsound at the 
 time of sale, and two of them after a resale turned out to be so ; and 
 the plaintiff had to pay £20 as compensation to the purchaser, while 
 the other died on its road to Leicestershire. Eighty-three bullocks of 
 the plaintiff's had been taken by his drover from Devonshire to North- 
 ampton by stages of fourteen and fifteen miles per da}^, and all with the 
 exception of these three stood the journey well. Erskine J, said, " The 
 third question is, were the cattle unsound at the time of sale? The 
 l)laintiff must prove that the beasts had some disease or seeds of disease 
 at the time of the sale, which rendered them in some degree unfit or less
 
 MEANING OF WORD "SOUND." 565 
 
 fit for ordinary use. Tlius it is in tlie case of horses, so with respect to 
 oxen. The defendant -warrants that tliey liave no disease which would 
 prevent them from being fattened, and made fit for sale to a butcher, 
 or render them disqualified for travelling; One of the beasts died on 
 the road from unsoundness. Did the unsoundness come on by any 
 accidental circumstances after the sale, as taking cold or drinking cold 
 water? if so, that is not such unsoundness as to affect this verdict; or 
 were the symptoms referable to antecedent disease ? if so, the case is 
 made out as to that animal. For the other two bullocks, you have it in 
 evidence that the butcher who bought them observed their bad con- 
 dition, and it is also said that they were unsound at the time of the sale 
 on Lew Down. The question is, are you satisfied that these beasts had 
 the disease upon them at the time of the sale ? " The jury returned a 
 verdict of £25 for the plaintiff, and a rule to show cause on the ground 
 of misdirection was refused. 
 
 Parhe B. said, " I think no rule ought to be granted in this case. 
 In the case which has been referred to, of Coates v. Stevens, I am 
 reported and correctly reported to have said to the jury 'I have 
 always considered that a mem who hiiijs a horse ivarmnted sound must 
 he taJcen as buijlnrj for immediate use, and he has a right to expect one 
 capable of that use, and of being immediately put to any fair work the 
 owner chooses. The rule as to uns<oundness is, that if at the time of 
 tlie sale the horse has any disease ivliich either aduaJhj does diminish the 
 natural usefidness of the animal ; so as to make him less cajMMe of vjork 
 of any description, or which in its natural progress will diminish the 
 natural usefidness of the animal ; or if the horse has either from disease 
 or accident undergone any alteratioji of structure that either actually docs 
 at tlie time or in its ordinary effects will diminish the natural usefulness 
 of the horse, siwh horse is unsound. If the cough actually existed at 
 the time of sale as a disease so as actually to diminish the natural 
 usefulness of the horse at that time, and to make him then less capable 
 of immediate work, he was then unsound : or if you think the cough, 
 which in fact did afterwards diminish the usefulness of the horse, 
 existed at all at the time of the sale, you will find for the [ilaintiff. I 
 am not now delivering an opinion formed on the moment on a new 
 subject ; it is the result of a full and previous consideration.' 
 
 *' This is the rule I have ever acted on, in cases of unsoundness, 
 although in so doing I must differ from the contrary doctrine laid 
 down by Coleridge J. in the case of Boldero v. Brogden, which has 
 been referred to. In short the word ' soicnd' mea?is tvhat it eo'pi-esses, 
 namely, tfuit the animal is free from disease at the time he is ivarranted 
 to he sound. If, indeed, the disease were not in ordinary cases of a
 
 566 DEFECT IN STRUCTURE OF HORSE. 
 
 nature to impede the natural usefulness of the animal for the purpose 
 for which he is used — as, for instance, if a horse had a slight pimple on 
 his skin, it would not amount to an unsoundness ; but even if such 
 a thing as a pimple were on some part of the body where it might have 
 that etieet, as, for instance, on a part which would prevent the putting 
 a saddle or bridle on the animal, it would be different. An argument 
 has, however, been adduced from the slightness of the disease and the 
 facility of the cure ; but if we once let in considerations of that kind, 
 where are we to draw the line ? A horse may have a cold which may 
 be cured in a day, or a fever which may be cured in a week or month, 
 and it would be difficult to say where to stop. Of course, if the disease 
 be slight the unsoundness is proportionably so, and so also ought to be 
 the damages ; but in the question of law I think that the direction of 
 the judge in this case w'as perfectly correct, and that this verdict ought 
 not to be disturbed. Were this matter presented to us now for the 
 first time, we might deem it proper to grant a rule ; but the matter 
 has been, we think, settled by previous cases, and the opinion which 
 we now express is the result of deliberate consideration." Alder son B. 
 said, " I am of the same opinion. The word * sound ' means sound, 
 and the only qualification of which it is susceptible arises from the 
 purpose for which the warranty is given. If, for instance, a horse is 
 purchased to be used in a given way, the word ' sound' means that 
 the animal is useful for that purpose, and ' unsound ' means that he at 
 the time is affected with something which will have the effect of 
 impending that use. If the disease be one easily cured, that will 
 only go in mitigation of damages. It is, however, right to make 
 to the defence of unsoundness the addition my Brother Parlce has 
 made, namely, that the disqualification may arise either from disease 
 or accident ; and the doctrine laid down by him on this subject, both 
 to-day and in the case of Coatcs v. Sinvois, is not new law, and is 
 found to be recognized by Lord EUcnlwroiujh and other judges in 
 a series of cases." 
 
 According to Hohjday v. Morgan, any dpfect in the structure of a Jwrse, 
 ivhdher congenital or arising from suhsequent disease or accideiit, that 
 diminishes his natural usefulness and renders him less than reasonably 
 fit for present use, is unsoundness ; and convexity in the formation of 
 the cornea of the eye of a horse, making him shortsighted, and so 
 inducing a habit of shying, is such a defect. At the trial in the Lord 
 Mayor's Court of London, before the Common Serjeant, it appeared 
 that the defendant sold the horse to the plaintiff with an express war- 
 ranty of soundness. It was found to shy going through the streets, 
 and a veterinary surgeon gave evidence that it had an unusual convexity
 
 GOGGLES IN SHEEP. 567 
 
 in the cornea of the eye which caused shortsightedness, and that the halit 
 of shying might arise from this ; but that there was no disease in the 
 eye, the peculiar formation being congenital. His honour directed the 
 jury that if they thought that the habit of shying arose from a defect 
 of vision caused by natural malformation of the eye, this was unsound- 
 ness. The jury found a verdict for the plaintiff, leave being reserved 
 to move to enter it for the defendant, or for a new trial under stat. 20 
 & 21 Vict. c. 157, s. 10, and the Court of Queen's Bench confirmed 
 their finding. And i)er Lord Ckimplell C.J. : " The direction of the 
 Common Serjeant was wholly unexceptionable, being in eflfect that if 
 the shying arose from malformation of the eye, that was unsoundness, 
 although the defect was congenital. Although in the authorities cited 
 {Kiddell V. Burnard, Coates v. Stevens, Barley v. Forrest, and Brown v. 
 Elliington) for the defendant, the cases of supervening disease and 
 accident are alone mentioned, yet it is not from thence to be assumed 
 that the learned judges would have said, that if a congenital defect had 
 been found to exist, there would not have been a breach of the warranty 
 of soundness, the defect being such as to prevent the animal from per- 
 forming that which might reasonably be expected from him. Suppose 
 a horse to be born blind or with a contracted foot, surely that would be 
 a breach of warranty of soundness, although the deficiency or defect 
 existed before the animal was foaled. Then as to the point that this 
 was such a defect as the purchaser was bound to take notice of ; there 
 being an express warranty, he was not bound to examine so closely as 
 to ascertain whether the cornea were so formed as to produce short 
 sight ; the most prudent man could not be expected to do that. The 
 plaintiff had a right to rely on the warranty, and that I think was 
 broken." 
 
 It would also seem, from the decision of Allott C.J., in Jolijf v. 
 Bendell, that the imrcliaser of sheep or cattle may have his action when 
 they prove to have some hereditary disease in them ivhich in-events them 
 from thriving. This was a case of assiifnjjsit on a sheep warranty, the 
 first count of which stated the sheep to be sound, and tlie second free 
 from goggles. Tlie sheep, 100 in number, were sold on the 12 th of 
 August, 1823. At the time of the sale they were apparently sound, 
 and continued so till the middle of the next October, when one or two 
 of them were seized with goggles, which exhibited itself in giddiness, 
 swelling of the eyes, and hanging of the head. They grew weaker and 
 weakei', and generally died in about a week or ten days after the 
 seizure, and on dissection, water was found in the head or brain. 
 About 50 had died, and 50 continued well up to the time of the trial. 
 There was no contagion, other sheep with which they were fed and kept
 
 568 COUGH OF PERMANENT NATURE UNSOUNDNESS. 
 
 having continued liealthy. Witness stated that it was an hereditary 
 disease, arising from lireediug " in and in, or from relations " — tliat 
 sheep so disordered would tlu-ive and seem to be in sound health gen- 
 erally until two or three years old — that there was no means of dis- 
 covering by the appearance or otherwise that sheep were so affected — 
 that it was generally fatal, and no cure or prevention known for it, and 
 was reputed amongst farmers an unsoundness. The evidence for the 
 defendant went to show that the sheep were of a pedigree free from 
 " breeding in and in," and that others of the same sort and older were 
 perfectly sound. The warranty was proved without dispute, and the 
 sheep were all of the same breed. For the defendant it was contended 
 that the sheep having been thriving and healthy at the time and for 
 two months after the sale, must be considered as sound at that time ; 
 that, inasmuch as there were no previous symptoms to connect the 
 disease of which they died with their former state of health, there was 
 nothing to show that the disease existed at the time of the sale ; and 
 that an hereditary liability to a particular disorder was of too uncertain 
 a nature to be capable of proof, and could not be legally considered as 
 an unsoundness existing at the time stipulated for in the warranty. 
 Ahlott C.J. left it to the jury to say whether at the time of the sale the 
 sheep had existing in their blood or constitution the disease of which 
 they afterwards died, or whether it had arisen from any subsequent 
 cause. The verdict was for the plaintiff for £120, the value of the 
 sheep which had died, and the defendant agreed to take back the 
 remainder. 
 
 It was laid down by Lord Ellenlorough C.J., in Shillitoe v. Claridge, 
 that if a liorso lias a covgh of a permanent 7iature, he is unsound, and 
 *• such has, I believe, always been the understanding both in the pro- 
 fession and amongst veterinary surgeons. On the counsel (subse- 
 quently Mr. Justice Williams) remarking that "at present at least two- 
 thirds of the horses in London have coughs," his lordship rejoined, 
 " Be it so ; but still it is a breach of the warranty." Lord Mansfield 
 C.J. held that roaring was not necessarily an unsoundness ; and in 
 Basseit v. ColUs a somewhat strained distinction was drawn by Lord 
 Ellenhorovgh C.J. between roaring which proceeded merely from a bad 
 habit, producing a noise offensive to the car, and thot which is the 
 result of any disease or organic infirmity. However, in a later case of 
 Onslow V. Eam/'S, after hearing the evidence of Mr. Field, Y.S., to the 
 effect that roaring is occasioned by the circumstance of the neck of the 
 windpipe being too narrow for accelerated respiration, and that the dis- 
 order is often prodnred by sore throat or other topical inflammation, 
 and incommodes him when pushed to his full speed, his lordship said,
 
 STRINGHALT UNSOUNDNESS. 569 
 
 " If a horse be affected by any malady wbich renders him less service- 
 abie for a permanency, I have no doubt that it is an unsoundness. / 
 do not go lij the noise, hut hy the disorder.'^ Subsequently, in Best v. 
 Oshorne, Best C.J. ruled that the plaintiff had not done enough in 
 showing a horse to be a roarer, and that " to prove a breach of 
 warranty he must go on to show that the roaring was symptomatic of 
 disease." Roaring is now considered in practice to be an unsoundness. 
 In both Thompson v. Patfeson and Niglett, and Scott v. Henderson 
 stringhalt was considered an unsoundness. In the latter trial Professor 
 Dick mentioned that a horse's leg usually clears the ground at least five 
 inches in stepping, whereas a stringhalt would cause it to be raised at 
 least one-third more. The defendant in Anderson v. BlacMnirn con- 
 sented to a verdict against him, as he had evidently mistaken string- 
 halt action, or " a catcliing gait with all the legs," which is very pecu- 
 liar to all Arab horses, as this one was for stringhalt. According to 
 Professor Spooner, it most frequently attacks horses whose crusts and 
 laminee are weak and very obliquely placed. Laminitis was considered 
 by Wilde C.J. in Smart v, Allison to be an unsoundness, as it alters the 
 structure of the feet to such an extent as to cause lameness. Here the 
 off forefoot was especially impaired, and the disease was marked by the 
 usual symptoms (flat soles and ridges on the hoofs below the coronets), 
 and had evidently been in existence some time. For the defence it was 
 unsuccessfully urged that the horse had been flatfooted and ribbed in the 
 hoof from his birth, but had never been lame but once from the effects 
 of a thorn, and that then, if he had been suffering from laminitis, he 
 could not have been hunted for two seasons. Professor Spooner, who 
 was called for the plaintiff" to prove the alleged unsoundness, said that 
 " Laminitis, usually styled ' fever of the feet,' commences with acute in- 
 flammation of the laminae, substances which lie between the coffinbone 
 and exterior hoof, protecting the latter from being pressed by the former. 
 If the inflammation be so acute as to occasion a disunion of the sensitive 
 from the horny lamina, the coflinbone falls down upon the sole, pro- 
 ducing a deformity of the hoof, and the horse becomes incurably lame. 
 If it does not proceed to that length chronic inflammation supervenes, 
 the coronet of the hoof throws out ridges, the horn at the toe thiokens, 
 and the sole or space within the frog becomes so flattened as to touch 
 the ground and make the horse liable to lameness after a hard day's 
 work or travelling on the road." Hall v. Rogerson was a case of the 
 same class. A contraction of the hoof causing lameness {Greenway v. 
 Marshall), and a navicular-joint disease, which is an inflammation of a 
 joint on the inside of the hoof, and a peculiar incident of contracted 
 feet, are also an unsoundness (By water v. Fiichardson); and see
 
 570 BADNESS OF SHAPE NOT UNSOUNDNESS. 
 
 Matthews V. Parker. A chest -foundered horse is unsound {Atferlury 
 V. Fairmaner), and so is one suffering from cataract {Higgs v. Thrale), 
 or ojMcity of the crystaUim lens {Briggs v. Baker). 
 
 An affection of the nerves in the lumbar region was held in Wilmot v. 
 Lees to be an unsoundness. The harge nerves so affected take their 
 origin from the spinal marrow as it passes through the loins, and hence 
 there is no proper nervous connection between the hind quarters and 
 the brain. The disease betrays itself very little when the horse is in 
 action, but is especially apparent when he moves in the stall l)y the 
 jerking upwards of the near hind limb, and an inabihty to move side- 
 ways, which cause him to fail and drop several inches on the near side. 
 Three veterinary surgeons "could see nothing the matter" with this 
 horse, and his groom swore that he had acquired the habit of dropping 
 bis hind legs fi-om his occasionally clipping him over the legs with a 
 pitchfork to make him clear the bedding. Under the direction of 
 Coleridge J. there was a verdict for the defendant for the difference 
 between the price given for the horse and the sum he sold for when 
 under dispute. 
 
 It was expressly laid down by Alder son J., in Dickinson v Follett, 
 that " a horse cannot be considered unsound in Imv merely from badness 
 of shajie. As long as he is uninjured he must be considered sound. 
 AVhen the injury is produced by the badness of his action it constitutes 
 an unsoundness." The evidence here was contradictory as to whether 
 the unsoundness existed at the time of the sale, and a veterinary sur- 
 geon who was called for the defendant said that the horse was so ill- 
 formed from turning out one of its fore-legs, that it was incapable of 
 doing work to any extent without cutting so as to produce lameness. 
 The law laid down by the learned judge was expressly in point for the 
 defendant in Broicn v. EUwigfon, where it appeared that the plaintiff 
 had objected to the horse's curby hocks at the time of the sale, but 
 bought him for £60 on receiving a general warranty of soundness. 
 He sprang a curb a fortnight after, in his third day with hounds. 
 Veterinary surgeons gave their testimony for the plaintiff to the effect 
 that curby hocks indicate a peculiar form of the hock, which was con- 
 sidered to render the horse more liable to throw out a curb, but did not 
 of itself occasion lameness, and that the horse had curby hocks at the 
 time of sale. Lord Abinger C.B. told the jury that a defect in the 
 formation of the horse which had not occasioned lameness at the time 
 of sale, though it might render the animal more liable to be lame at 
 some future time, was no breach of the warranty. The Court of Ex- 
 chequer refused a new trial for misdircct'on, which was moved for on 
 the fi-ouud that a malformation, the natural consequence of which was
 
 SPLINTS PRODUCING LAMENESS. 571 
 
 lameness, amounted to an unsoundness ; and Alderson B. observed 
 that, " The law as laid down by me in Dklcinson y. Follctt has not 
 been questioned in any subsequent case." 
 
 Cressivell J. also ruled in accordance with this doctrine in BaiJeij v 
 Forrest, where it was contended for the defendant that the mere fact of 
 a horse Tjeing thin-soled did not of itself make him unsound, and that 
 the plaintiff could not recover on the warranty, although the horse fell 
 lame shortly after the sale. " The plaintiff," said his lordship, " must 
 prove that the horse was unsound at the time of the sale, or he cannot 
 recover. Mere defective formation not producing lameness at the time 
 of sale, does not, in my opinion, constitute unsoundness." 
 
 The subject of splints was very much considered in Margetson v. 
 Wright. Here the plaintiff, an attorney, being desirous of possessing 
 a race-horse, went to examine the defendant's stallion Sara])Son, who, 
 in addition to being a crib-biter, had a splint on the oflF fore-leg, and 
 had broken down in training. In consequence of these defects the 
 plaintiff purchased him for only £90, a French veterinary surgeon 
 having reduced the splint and given a plausible recipe for its future 
 treatment. Defendant would not give a warranty that he would stand 
 training, and hence a sale memorandum was ultimately signed stating 
 the amount and time of payment, that plaintiff was to give the defen- 
 dant £10 for each of the first five races the horse won in 1830, and 
 concluding thus — " And the said Mr. Wright does hereby warrant the 
 said horse to be sound, wind and limb, at this timey In the course of 
 six months the horse broke down in training, and an action was com- 
 menced on the warranty. Parke J. t)old the jury that the parties, by 
 the insertion of the words " at this time," probably intended to exclude 
 a warranty of the horse's standing training ; and that the question for 
 them to consider was, whether at the time of the warranty the animal 
 was sound for ordinary purposes, as to go on the road or the like, the 
 express warranty rendering the defendant responsible for the conse- 
 quences of the splint, though the defect was visible. 
 
 The Court of Common Pleas granted a new trial, as they thought 
 that the jury might have been misled by the direction, which would 
 have been less subject to misapprehension if it had been left to them to 
 consider whether the horse was at the time of the bargain sound in 
 wind and limb, saving those manifest defects contemplated by the 
 parties. At the second trial the plaintiff brought forward evidence as 
 to the nature and consequence of various kinds of splints, and proved 
 not only that they may or may not be the efficient cause of lameness, 
 according to their size or to the position they occupy ; but that Samp- 
 son's splint was in a very bad position, as it pressed on one of the
 
 01 -Z 
 
 SPLINTS CAUSING UNSOUNDNESS. 
 
 sinews, and produced inflammation and consequent lameness when- 
 ever the horse worked. Vaughan B. requested the jury to tell him 
 distinctly whether in their judgment the horse was sound ; or if un- 
 sound, whether the unsoundness arose from the splint. They said 
 " that although the horse exhibited no symptoms of lameness when 
 the contract was made, he had upon him the seeds of unsound- 
 ness, arising from the splint ; " and they accordingly found for the 
 plaintiff. 
 
 On a motion for a new trial, the Court of Common Pleas ordered the 
 postea to be delivered to the plaintiff. Timhl C.J. said : " The jury 
 drawing tlicir attention to the particular splint to which the evidence 
 related, appear to us to have intended that this individual sjjlinf, though 
 it did not at the moment produce lameness, was at the time of the con- 
 tract of that sort and in that situation as to contain, in their language, 
 the seeds of unsoundness that is the efficient cause of subsequent lame- 
 ness. If the lameness complained of had proceeded from a new or 
 different splint, or from the old splint taking a new direction in its 
 growth so as to affect a sinew, not having pressed on one before, such 
 a lameness would not have been within the warranty, for it would not 
 have constituted a present unsoundness at the time of the warranty 
 made. But the jury find that the very splint in question is the efficient 
 cause of lameness ; and it appears by the fresh evidence that some 
 splints cause lameness and that others do not, and that the conse- 
 quences of a splint cannot be apparent at the time like the loss of an 
 eye or any visible blemish or defect to a common observer. We there- 
 fore think that by the terms of ar written warranty the parties meant 
 that this was not a splint at that time which would be the cause of 
 future lameness, and that the juiy have found it was. We therefore 
 think that the warranty was broken." 
 
 In Warlon v. Floirers the horse had a splint on the near front leg at 
 the time of the sale, but after some examination a warranty of sound- 
 ness was given. At the end of ten days the horse went lame, and on 
 examination of his feet and legs by Professor Spooner, who had the 
 shoes taken off, that gentleman gave it as his opinion that the lame- 
 ness proceeded from the splint, and was of some months' standing. 
 Mr. Webb, Y.8., who was sent to look at the horse by the defendant, 
 maintained that the horse wanted shoeing, and that his lameness was 
 caused Ijy the .growth of his hoofs, by which his heels were let down 
 and his navicular joint bruised on the pavement. The defendant, on 
 hearing this, refused to take him back, and brought evidence on the 
 trial to show that he had worked 18 miles a-day with the splint in the 
 Epping Coach before the plaintiff had him, and done a potato mer-
 
 LAPSE OF TIME WILL KOT AFFECT FALSE WARRANTY. 573 
 
 chant's work for three months after his resale l^y the plaintiff, and yet 
 had never gone lame. Jervis C.J. put it to the jury that if the lame- 
 ness was produced by the splint the plaintiff was entitled to recover ; 
 but if on the other hand they were of opinion that Mr. Webb was right 
 in supposing the lameness to be caused by want of shoeing, they must 
 find for the defendant. The plaintiff had a verdict for £32 Gs. 9d., 
 being the difference between the original price and the net proceeds of 
 the sale, and for keep during the time he had him. 
 
 According to the rule laid down in Fielder v. Starlcin, no lengili of 
 time elcqjsed after the sale ivill alter the nature of a contract originaJhj 
 false, though the not giving notice is a strong presumptio7i against the 
 huger that the horse had not at the sale the fault complained of. Here 
 the mare was found soon after the sale to be a roarer, in addition to 
 having a thorough-pin, and a swelled hock from kicking ; but the 
 plaintiff kept her three months, and tried to cure her. He then resold 
 her, and she was returned unsound, and defendant refused to receive 
 her baCk at the end of six months, as the plaintiff (who got the ver- 
 dict) had often met him during that time, and never mentioned the 
 matter. On her way back to the plaintiff's stables, after this refusal, 
 she died, and veterinary surgeons thought she had been unsound for a 
 twelvemonth. 
 
 A verdict for the plaintiff, with 30 gs. damages, was confirmed ; and 
 on the authority of this case a new trial was moved for, after a verdict 
 for the defendant, in Adams v. Richards, which was an action on the 
 warranty of a pair of brown coach-horses, to be " perfectly sound, free 
 from blemish, and in no manner vicious, and if on the trial they should 
 have any of the above-mentioned faults to he taken lack and purchase- 
 money returned." Soon after the sale one of them turned vicious and 
 restive, and there was evidence that he was so at the sale. The plain- 
 tiff told the defendant of this, but still kept the horse for a time, in the 
 hopes that he would improve by use. The defendant took his horse 
 back for a time, lending him another to make up the pair, and then sent 
 him the vicious one back with the assurance that it was quite quiet 
 now. On this point, however, the plaintiff differed with him, returned 
 the pair at the end of nearly seven months, and sued defendant for 
 his money. The Court said that they fully assented to the doctrine in 
 Fielder v. Starhin (that where a horse has been sold warranted sound, 
 which, it can be clearly proved, was unsound at the time of sale, the 
 seller is liable to an action on the warranty, witliout either the horse 
 being returned or notice given of the unsoundness). Still ^vltcn tJiere 
 was an agreement to talce a horse lacJc, if on trial lie should be found 
 faulty, though it were accompanied with an express Avarranty, it was
 
 574 REASONABLE TRIAL OF HORSE. 
 
 incumbent on the purchaser to return the horse as soon as the faults 
 were discovered, unless the seller by any subsequent misrepresentation 
 induced the purchaser to prolong the trial. A trial means a reasonable 
 trial : but here nearly seven months had elapsed after the horse was 
 known to be restive, and before the return, and therefore the verdict 
 for the defendant was right. Forty years after it was urged on the 
 argument in Patteshall v. Tranter, where the horse was discovered to 
 be paralyzed in the spine shortly after the sale, and the plaintiff gave 
 no notice for nine months, but put him into physic and cut his tail, 
 that Fielder v. Starkin had been overruled, or at least qualified by other 
 decisions in the interim ; but Lord Demnan C.J. said, with the assent 
 of Littledale, Patteson, and Coleridge J.J. : "We think that Fielder v. 
 Starkin is not overruled." And the nonsuit was set aside and a new 
 trial ordered. 
 
 When a certain time for trial is fixed upon, the person granting it cannot 
 break off the negotiation till it is concluded. And so in Ellis v. Mortimer, 
 where the defendant told the plaintiff, when only a fortnight out of the 
 month was expired, that he liked the horse but not the price, and was 
 requested to send the horse home, but did not do so till three or four 
 days before the close of the month, the plaintiff could not maintain an 
 action against him for the price. 
 
 A lorrowed horse camiot he used hy a servant {Bringloe v. Morrice), 
 which was the case of a master and servant riding by turns to York. 
 But a man may jnd his servant on a hired horse (ib.) ; and if he is about 
 to buy a horse he is not limited to trying its paces himself, but has a 
 right to put his groom or a competent horseman on it for the purpose 
 oi^a trial, and provided they do nothing more than is necessary, even 
 if the horse runs away and injures itself or is killed, he is not liable 
 (Camogs (Lord) v. Scurr). If a person rides a horse gratuitously for 
 another at the ownei-"s request, in order to show him for sale, he is bound 
 to use such skill and care as a person conversant with horses might be 
 reasonably expected to use, and if he does not, he is equally liable with 
 a borrower for injury done to the horse while ridden by him. Hence 
 in Wilson v. Brett, where the defendant, a skilled horseman, took a horse 
 for inspection into a cricket-field, where it slipped several times oiving to 
 the nature of the field, and broke its knees, the Court of Exchequer re- 
 fused to set aside a verdict for the plaintiff, and considered that the 
 proper question for the jury was that put by Eolfe B., whether the de- 
 fendant did or did not use such skill and management in choosing his 
 ground and handling his horse as he really possessed. And per^ Eolfe 
 B. : " The distinction between this case and that of a borrower is that 
 a gratuitous bailee is onlg bound to exercise such skill as he possesses,
 
 PHYSICKING HIRED HORSE. 575 
 
 Avhereas a liirer or borrower may reasonably be taken to represent to the 
 party who lets, or from whom he borrows, that he is a person of com- 
 petent skill." But j;^r Coleridge J. : " Would it not be monstrous to 
 hold that if the owner of a horse, knowing it to be vicious and un- 
 manageable, should lend it to one who is ignorant of its bad quality, 
 and conceal this from him, and the rider — using ordinary care and 
 skill — is thrown from it and injured, he should not be responsible?" 
 (BlacJcmore (adx.) v. The Bristol and Exeter Railwcuj Company). 
 
 The defendant in Curtis v. Hannay had learnt the day after the sale 
 that the horse had defective eyes at the time he bought him, lut Icept him 
 seven iveeks before he returned him, and said nothing. During that time 
 he gave him medicine and blistered him for a fancied defect in the feet, 
 ivhkh produced a thrush and lameness. The latter was only temporary, 
 and the horse got better, and those remedies did not affect the eyes. 
 Under these circumstances Lord Eldon C.B. said that the question was, 
 " Would the horse, when .returned to the seller, be diminished in value 
 by this doctoring ? If he would, the defendant should pay the price, 
 and bring his action against tiie seller for any defect in the warranty 
 existing at the time of the sale. He took it to be clear law that if a 
 person purchases a horse which is warranted, and it afterwards turns 
 out that the horse was unsound at the time of the warranty, the buyer 
 might if he pleased keep the horse and bring an action on the warranty 
 in which case he would have a right to recover the difference between 
 the value of a sound horse and one with such defects as existed at the 
 time of the warranty ; or he might return the horse, and bring an 
 action to recover the full money paid ; but in the latter case the seller 
 had a right to expect that the horse should be returned in the same 
 state he was when sold, and not by any means diminished in value." 
 The jury found for the full price, as they seemed to think that a future 
 purchaser would think less of the horse if he heard that he had been 
 blistered and doctored. 
 
 If a horse is taken ill on a journey, ivithout any fault in the hirer, the 
 owner has to pay the expense of its cure ; but if the hirer takes upon himself 
 to prescribe medicines, and the horse dies, he is liable for the price of it. 
 And so it was ruled in Dean v. Keate, where the defendant gave the 
 horse some medicine, mild in itself, and then drove him very quick in 
 rough weather, producing thereby inflammation of the intestines, which 
 he treated with opium and ginger, and then when he found the horse 
 dying in great pain sent for the ftirrier too late. Lord Ellenborovgh 
 C.J. said, had he called in a farrier he would not have been liable for 
 the medicines he administered ; but when he prescribed himself, he 
 assumed a new degree of responsibility, and in prescribing so improperly
 
 570 NO CUEE NO PAY. 
 
 he did not use that degree of care which miglit be expected from a 
 prudent man towards his own horse, and thougli acting liom fide, was 
 liable to the owner for gross negligence. 
 
 It was decided in Orchurcl v. Rctclcstraiv, that ivhere a liorse is standing 
 at livery, and tlie livery-stahU Tceejper at the owner's request employs a 
 veterinary surgeon, he has no lien on the horse for tlie tatter's charge. In 
 this case the horse was blistered for splints, and on its being demanded 
 the defendant claimed a lien of £23 13s. including his charge for the 
 standing of the horse and tlie hire of a chaise, and 30s. for payment to 
 the veterinary surgeon. Jlaule J. told the jury that the defendant was 
 not entitled to claim a lien upon the horse, either in respect of the 
 charge for its keep, or of the surgeon's charge for blistering, and 
 accordingly a verdict was found in trover for the plaintiff — damages 
 30 gs., being the value of the horse. The Court of Common Pleas 
 confirmed this ruling. Wilde C.J. said, " Suppose the veterinary 
 surgeon had treated the horse unskilfully and damaged it, who would 
 have been responsible to the owner, the livery-stable keeper or the 
 veterinary surgeon ? Clearly not the former. The veterinary surgeon 
 had no lien for his bill, and the livery-stable keeper none for the keep 
 of the horse." Cressivell J. added, " There is no rule of law giving a 
 livery-stable keeper a lien for money expended upon a horse standing 
 at livery at the request of the owner. The case, therefore, does not 
 fall within the rule of law which confers a lien upon one who expends 
 his money or his labour upon a chattel of another." 
 
 Bates V. Hudson was a case of ";io cure no ]jay" The i)laintlff lyroved 
 that he had been emj^loyed by the defendant to cure a flock of 3b0 sheep 
 and 147 lambs of the scab, at so much jier head for each sort. General 
 evidence was given that the plaintiff had performed his contract ; but 
 the defendant proved that the plaintiff at the time he undertook the 
 task did not expect to be paid unless he cured all the flock, whereas he 
 had failed in at least forty cases. Alexander C.B. held that if the 
 plaintiff agreed to cure all the sheep, at all events that was an entire 
 contract, and he could not recover if some of the flock were not cured. 
 The jury found that the complaint had been checked but not subdued, 
 and a verdict was entered for the defendant, which the Court of King's 
 Bench refused to disturb. 
 
 The question of the liabiJUy for the damage where a highly improper 
 application fur a horse is furnished was fully considered in Phillips v. 
 Wood. The defendant was a chemist and druggist, and the first count 
 stated that he had agreed to sell the plaintiff a quantity of ointment, 
 reasonably fit to be api)lied as a blister to horses with puffed legs ; and 
 that though it was defendant's duty to sell him such oinLmeut, he sold
 
 chemist's liability for selling IMrROPER LOTION. 5'< 7 
 
 him some which was totally unfit, and by the application of which his 
 mare was made useless. It appeared on the trial before Littlcdah J., 
 that the paintifF, thinking his mare required blistering, agreed with his 
 father that the latter should take her, have her blistered and properly 
 treated, and send her to grass in his own field. The father, who was 
 to be paid for the keep of the mare, bought from the defendant the 
 blistering ointment, which was applied by a man employed by himself, 
 to all four legs at once. The jury found that the plaintiff had not been 
 guilty of negligence, and gave him £32 damages. A new trial was 
 moved for on the ground that the contract was not properly stated in 
 the declaration, and also that the plaintiff himself was guilty of negli- 
 gence, as he had applied the ointment too severely. The Court of 
 King's Bench refused the rule, and thought that the contract was 
 described according to its legal effect. It was quite clear in law that 
 this was the son's contract. By the terms of the agreement between 
 the father and the son, the latter was liable for the price ; and if it had 
 been a credit transaction the chemist might have recovered from the 
 son, for the father purchased in the character of his agent. The Court 
 by no means assented to the proposition that the plaintiff was bound 
 to show that he himself is not chargeable with negligence before he 
 could impute it to the defendant. That formed no part of the issue he 
 was bound to prove. 
 
 BlacTc v. Elliot was a very important action to recover damages for 
 the defendant's negligence and want of sJciJl i?i selling a sheej) /rash to 
 the plaintiff, which poisoned his sheep. The plaintiff was a large farmer 
 at Xew Heaton, in Northumberland, and he had recently purchased 
 the stock and taken a farm of about 1,000 acres at Burton, in addition 
 to his own. In July, 1858, he saw an advertisement in the "Berwick 
 Advertiser " headed " Important to farmers," and greatly recommend- 
 ing the defendant's " Celebrated sheep wash," for the destruction of 
 tick, lice, and vermin in sheep. Accordingly, on the 7th of August, 
 the plaintiff being at Berwick, ordered sufficient of this sheep wash to 
 wash 700 sheep. The wash w^as sold in powders ; and the defendant's 
 shopman told him he would require 14 of these powders — one powder 
 being sufficient for 50 sheep. The plaintiff ordered 15 powders, and 
 they were sent to his Burton farm. The direction on the powders was 
 that each powder was to be mixed with three or four gallons of boiling 
 water, and that then this mixture, with 4lbs. of soft soap, was to be 
 diluted with 45 gallons of cold water, and this would make a wash for 
 50 sheep, in which they were to be dipped. The direction was impli- 
 citly followed, and on a Saturday in August 869 sheep were dipped 
 in this wash — 60 of them being dipped in it much diluted, as they had 
 
 p p
 
 578 SELLING POISONOUS SHEEP WASH. 
 
 been washed before. The sheep were brought from a considerable 
 distance to the sheds, and they were turned back into the sheds, and 
 sent back to their pasture at intervals during the day, and all appeared 
 to go on well. On the Sunday, however, one of these sheep died. On 
 the Monday several more died, and many were seen to be ill— foaming 
 at the mouth and shaking their heads, and lying down. 
 
 On the Tuesday a great number died ; more still on the Wednesday ; 
 until, in the course of a few days, 850 of the sheep had died, 19 only 
 surviving, and these 19 were part of the 60 which had been dipped 
 in the very diluted mixture. It was also found that the hands and 
 arms of the shepherds which had been dipped in the liquor became sore, 
 and mortified and sloughed, and they were ill for some time from it. 
 
 It was suggested that the sheep had been allowed to eat the her- 
 bage on which they stood after they were washed, and that a shower 
 of rain had washed oflP them much of the mixture, and saturated the 
 herbage of the field where they were placed, and thus poisoned them. 
 
 On the sheep all dying in this manner, Mr. Black had one of the 
 powders analyzed, and it was admitted that it contained li lb. of 
 arsenic, Ijlb. of soda ash, and 2oz. of sulphur, each powder weighing 
 21b. lOoz. The sheep were dissected and found to have been poisoned. 
 Tliey were all much swollen and black. The plaintiff then saw the 
 defendant, who went over to his farm. The defendant said then it was a 
 bad job, that his powders had never poisoned any sheep before, and 
 he knew he was responsible. The defendant then sold the skins of the 
 sheep to a skinner who joined them on the road for 2s. each, and the 
 carcases were buried. The plaintiff claimed £1,737 as the value of his 
 sheep. The defendant, however, afterwards resisted this demand, and 
 set up as a defence the improper mixing and diluting of his powders, 
 contending that the solution made was stronger than it ought to have 
 been according to his directions. 
 
 Those that had the disease had a frothy mucous about the brow, 
 nose, and mouth, the eye was very dull, and evident pain in the bowels, 
 the breathing was most laborious, the head was swollen, and thrown 
 back. The urinary discharge was black and bloody. The skin w^as 
 of a black and blue appearance, and the wool falling off' in large 
 patches, particularly on the back and across the loins. Professor Dick, 
 of Edinburgh, Dr. Thomi)Son, and other scientific witnesses, were 
 called to prove that the sheep, on dissection, exhibited traces of arsenic 
 in their intestines, and as much as six grains was found in a sheep, 
 which was quite sufficient to account for the death. The quantity of 
 arsenic in each powder sold by the defendant for the washing of each 
 sheep amounted to 195 grains. Willea J. ^ummod up at considerable
 
 WHAT CONSTITUTES AN ACCEPTANCE. 579 
 
 length : "With regard to the question of compensation, assuming that 
 they found for the plaintiflP, it -n'ould " (his Lordship said) " be a matter 
 for consideration whether they should find a verdict in respect of the 
 700 sheep, for which the packages were sold, or whether in respect of 
 the whole. He observed that, although the damages were laid at 
 £1,700, he thought if the jury found for the plaintiff, £1,400 would 
 be sufficient to cover the loss. The decision must be founded on 
 whether this was a ' reasonable, fit, and proper ' composition to be used, 
 according to the directions on the package, for dipping sheep. If they, 
 turning the matter over in their minds, thought that the result could 
 not be reasonably attributed to any other cause than the impropar 
 composition, then they ought to find their verdict for the plaintiff. 
 But if the plaintiff had not made that out to their satisfaction, then 
 they ought to return their verdict for the defendant." The jury 
 returned a verdict for the plaintiff, damages £1,400. 
 
 Where there is no contract a veterinary surgeon must go upon a 
 qiicmtum meruit [Sewell v. Coi'p) ; and in the same case Best C.J. 
 refused to receive in evidence, as coming from a body not known to 
 the law, a certificate of the Royal Veterinary College of attendance 
 at lectures. It was held by Lord Ellenborough C.J. that, under a 
 general count for work, labour, and materials, a farrier may recover for 
 attendances and medicines administered in the cure of a horse {Clark v. 
 Mumford). 
 
 What constitutes an accei)tance was very much considered in Elmore v. 
 Stone, which was an action by a livery-stable keeper to recover the price 
 of a pair of carriage horses for which he had asked the defendant ISOgs. 
 The defendant declined at the time to give that, but afterwards sent to 
 say that "the horses were his; but as he had neither servant nor stable, 
 the plaintiflF must keep them at livery for him," and the latter accord- 
 ingly removed them out of his sale stable into another. 31ansfield C.J. 
 thought there was a sufficient delivery, but reserved the point, and the 
 jury found for the plaintiff. The Court of King's Bench discharged 
 the rule for a nonsuit, as they considered that the horses were com- 
 pletely the horses of the defendant, and that when they stood at the 
 plaintiff's stables they were in effect in the defendant's possession. 
 
 The case of Carter v. Toussaint was also a sale on credit ; and as in 
 Tenvpest v. Fitzgerald, the 'purchaser had exercised various acts of oivner- 
 ship over the horse. The facts were as follows : The plaintiffs, who 
 were farriers, sold the defendant, by a verbal contract, which specified 
 no time of payment, a race-horse for £30. It required firing at the 
 time, which was done in the presence and with the consent of the defen- 
 dant, who agreed with the plaintiffs to keep the horse for 21 days, free 
 
 p p 2
 
 580 SALE ON CREDIT. 
 
 of charge. At the end of that time, plaintiffs' servant, by direction of 
 the defendant, took the horse to grass in Kimpton Park, and entered it 
 (simply because the defendant wished to conceal from his friends the 
 fact of his having a race-horse) as one of the plaintiflFs'. Eventually 
 defendant refused to take the horse, and under Abbott C.J.'s direction a 
 verdict was found for the plaintiffs ; and the Court of King's Bench 
 made the rule absolute for a nonsuit, Brrj/Jr?/ J. said : "The Statute 
 of Frauds is a remedial law, and we ought not to endeavour to strain 
 the words in order to take a particular case out of the statute. In the 
 17th section it is provided that in the case of a sale of goods above the 
 value of .£10 the buyer must accept and actually receive part of the 
 goods so sold. There can be no acceptance or actual receipt by the 
 buyer unless there be a change of possession ; and unless the seller 
 divests himself of the possession of the goods, though but for a moment, 
 the property remains in him. Here the plaintiffs had a lien on the 
 horse, and were not compellable to part with the possession till the 
 price was paid. Then the question is, was there anything to deprive 
 them of that right ? It is said that the horse was fired, but after that 
 he still remained in their possession, and then he was sent under the 
 care of their servant to Kimi)ton Park. But that was no act of delivery 
 to dispossess them of the horse. At Kimpton Park he was entered in 
 the name of one of the plaintiffs, and they therefore still retained a 
 control over him. How can it be said that the horse was in the pos- 
 session of the defendant when he had no right to compel a delivery to 
 him. For he could not, on tendering the keep, maintain trover against 
 the park-keeper, because the possession had not passed from the vendors 
 to him. The case of Elmore v. Stone is distinguishable. There the 
 original owner of the horse had stables in which he kept horses as 
 owner, and others where he kept them as livery-stable keeper ; and the 
 Court considered that by changing tlie horse from the one to the other 
 he had divested himself of the possession, and given up his lien. But 
 there is no circumstance of that sort here." 
 
 The {)rincipal question in Jordan v. Noiion was irhdher there ever 
 was a complete contract of jmrchase, the terms of which had to he gathered 
 from Utters. The plaintiff and defendant lived thirty miles apart, and 
 on October 16, 1837, at the request of the latter, a mare was sent to a 
 public-house half-way between their residences, for the defendant to try; 
 but as he would only offer 20gs. for her, the plaintiff's groom took her 
 back. Next day plaintiff wrote and offered him the mare at 20gs., and 
 defendant replied — 
 
 " I will take the mare at 20gs., of course ivarranted ; but as you say
 
 GATHERING TERMS OF CONTRACT FROM LETTERS. 581 
 
 you have another horse that I shall buy, the same expense will 
 bring the two up ; therefore, as the mare lays out, turn her out 
 with my mare. I will meet you at West Wycombe which day you 
 like, and pay you at once. 
 
 "W. Norton." 
 
 This and three other appointments were broken ; and in answer to a 
 remonstrance i'rom the plaiutitf, defendant wrote thus — 
 
 "October 26. 
 " Of course I mean to have the mare ; and if you had read my note 
 properly it would have saved you a great deal of trouble. My 
 son will be at World's End on Monday, when he will take the 
 mare and pay you. If you want to go elsewhere, send anybody 
 with a receipt, and the money shall be paid— only say in the 
 receipt, sound and quiet in harness.'" 
 
 On October 27th plaintift* wrote — 
 
 '' I send the mare as desired ; she is warranted sound and quiet in 
 double harness. I never put her in single harness, as I never 
 wanted it." 
 
 The mare was accordingly sent, and left with the landlord at the 
 World's End, where the defendant's son took her away without any 
 receipt or warranty, and rode her home to the defendant's. In a 
 couple of days her legs swelled, and she was sent home as unsound; 
 but plaintiff" would not receive her, and she was turned out of the 
 yard, and wandered no one knew where. The defendant's son and 
 the person who took her back spoke to her unsoundness, and the 
 former said that his father had been angry with him for bringiug 
 her buck without a receipt. The jury found that the defendant had 
 not accepted the mare, and that the son had no authority to bring 
 her home without, and gave a verdict accordingly. A rule to enter 
 it for the plaintiff for £21 was discharged. And 2)er Curiam: "The 
 correspondence amounts altogether merely to this — that the defendant 
 agrees to give 20gs. for the mare if there is a warranty of her being 
 sound and quiet in harness generally, but to this the plaintiff has 
 not assented, and thus the parties never contracted ad idem. There 
 is nothing in the parol evidence of the acts or conduct of the parties 
 to supply the deficiency in the contract. The defendant is not bound 
 by his son's conduct at the World's End, as he gave him only a limited
 
 583 OIVTXG HALFPEXXY AS EAENEST MONEY. 
 
 authority, and told plaintiff that his son would only receive the 
 mare if he sent a warranty that the mare was sound and quiet in 
 harness. There was not a complete contract in writing by which 
 both parties were bound, no sufficient delivery to defendant, and no 
 acceptance." 
 
 In Bach v. Owen, the plaintiff, one ]\Iay morning, a.d. 1792, agreed 
 to give the defendant a colt for defendant's mare, and pay 2gs. to boot 
 on December 17th, plaintiff to keep the colt till September 29th. The 
 defendant, accordingly, paid a halfpenny fo hind the bargain, but would 
 not either receive the colt nor deliver the mare, and it was held that 
 the plaintiff might have an action against him, alleging a demand on 
 him for his mare, but without alleging any delivery or offer to deliver 
 his own colt ; for payment of earnest money, however small, had vested 
 I^laintiff 's colt in the defendant. But where, as in BlenMnsop v. Clayton, 
 the plaintiff sent his horse with his servant to a fair to sell, and the 
 latter, on receiving the defendant's offer of £45 for the horse, tooJc out a 
 shilling, drew the edge aross the defendant's palm, and put it into his pocket 
 again irithovt muling a tranftfer of the shilling even for a moment, and 
 then the defendant returned in half-an-hour to the plaintiff's stable, 
 and on the plea of some supposed unsoundness, which was urged by a 
 chapman to whom he wished to sell it, refused to take the horse ; the 
 Court of Common Pleas held that the Statute of Frauds was not satis- 
 fied, and after a verdict for the plaintiff granted a new trial. The case 
 they said was very different from that of a haystack, as in Chaplin v. 
 Rogers, for there nothing more could be done to confer a possession. 
 
 There was this distinction between Blenkinsopy. Clayton and Tempest 
 V. Fitzgerald — that in the former the contract was not for ready money, 
 but the horse was to be delivered within an hour, and the defendant 
 treated it as his own hy offering it for sale ; whereas, in the latter the 
 express contract was for ready money, and the payment of the price 
 was an act concurrent with the delivery of the horse. The facts in 
 Tempest v. Fitzgerald were as follows : In August, 1817, the defendant, 
 who was plaintiff's visitor, agreed to purchase a horse for 45 guineas, 
 and fetch it about September 27th, as he returned from Doncaster 
 Races. It was understood to be a ready-money bargain, and the 
 plaintiff proposed to put the horse into physic, and have it ready for 
 the hunting season. On September 20th defendant returned, ordered 
 his horse out of the stable, saw his groom gallop and leap him, and gave 
 directions about haltering him. He then asked the plaintiff's son to 
 keep him another week, and said he would call in seven days when 
 the races were over, and left orders to have the horse sweated. On the 
 27th he returned, and found that the horse had died ; and on his refusal
 
 EXERCISE OF OWNEr.SHIP BY FEEDING CATTLE. 583 
 
 to accept, an action was brought, which ended in a verdict for the plain- 
 tiff. The Conrt of Queen's Bench, however, considered that there was no 
 acceptance of the horse 'within the 11 ih section of the Statute of Frauds, and 
 granted a new trial. At)bott C.J. said : " The defendant had no right of 
 property in the horse till the price was paid, and could not then exercise 
 any right of ownership. If he had at that time ridden away with the 
 horse the plaintiff might have maintained trover." Andj^cr Baylcy J. : 
 " This was a ready-money bargain, and the purchaser could have no 
 right to take away the horse until he had paid the price. If the argu- 
 ment on the part of the plaintiff were to prevail, the defendant might 
 have maintained an action for the horse without paying the price, which 
 would be contrary to the express terms of the contract." 
 
 The above case governed the decision in Holmes v, Hosklns. There the 
 defendant was a butcher, and ver'bally ipromised, one Saturday, to huy 15 
 head of cattle in 2)laintiff's field, for £190. Finding he had not got his 
 cheque-book, he told the plaintiff to call at his house for payment in the 
 evening. It was arranged that the cattle should stay in the plaintiff's 
 field till the next Tuesday. The defendant was out when the plaintiff 
 called in the evening, but he sent a message to request the loan of some 
 of plaintiff's hay from the rick to feed the cattle, and fed them with it 
 till the next Wednesday. He afterwards refused to pay for the cattle, 
 as he said he had offered too much. Martin B. thought there was no 
 evidence of an acceptance and receipt under the 17th section of the 
 Statute of Frauds, and nonsuited the plaintiff, with leave to move to enter 
 a verdict for £190, if the Court thought the evidence sufficient. The 
 Court of Exchequer upheld the learned judge's ruling. Parke B. said, 
 ''In order to satisfy the statute, there must he cm accejitcmce and an actual 
 or constructive delivery. Now in this case there was no actual delivery, 
 and therefore to entitle the plaintiff to recover there must be such a 
 dealing with the cattle by the defendant as ouiier that the plaintiff' 
 would lose his lien. But it is clear that the plaintiff never meant 
 to part with his cattle until the price was paid, and there is no ground 
 for holding that the mere giving permission to feed the cattle changed 
 the possession. In this case there has been no actual receipt, for the 
 defendant never had the cattle ; and the only question is, whether the 
 act of feeding the cattle with the plaintiff's assent is an exercise of such 
 an act of ownership as to amount to an acceptance and constructive de- 
 livery. I think that it's not. Elmore v. Stone was relied on for the 
 plaintiff; but that case is very different from the present; for there, 
 when the vendor assented to the purchaser's request, there was an 
 acceptance by which the former lost his lien." 
 
 Sawulers v. Topp was another case of the same class. The defendant
 
 584 ACCEPTANCE AFTER DELIVERY. 
 
 went with plaintiff to his farm, and selected from a flocTc 45 couples of 
 ewes and lambs, which he agreed to buy at 40s. a couple, also a stag 
 sheep and dry ewe at 40s. each. These he directed plaiutiff's shepherd 
 to send to his farm at "VYimbourne in the course of the day. They were 
 accordingly sent along with two couples of ewes and lambs (which he 
 bought from plaintiff without inspection at another of his farms) to 
 "Wimbourne, and left in his field. The defendant did not see them 
 there, but after the lapse of two days sent his man to drive them 14 
 miles to his residence, and said, after counting them on their arrival, 
 " It's all right ;" adding, with respect to the two couple, "They do not 
 match very well with those I have got." The next day the defendant 
 A\Tote to complain that the plaintiff had not sent the same sheep he 
 bought, and that unless £2 was deducted he would not take them, and 
 they were accordingly sent back. The defendant contended that the 
 bargain for the 45 couples and the two couples was one transaction, and 
 void by the 17th section of the Statute of Frauds, as there had been no 
 ])art payment or acceptance. Tlie jury found that there was a distinct 
 bargain for the 45 coujiles only, and tlie verdict was entered for the 
 plaintiff, with leave for the defendant to move to enter a nonsuit, if the 
 Court thought there was no evidence of acceptance to satisfy the 
 statute. 
 
 The Court of Excliequer decided that the plaintiff was entitled to 
 retain his verdict for the 45 couples, as there was clearly evidence of an 
 acceptance after deliveiy, though they doubted, but did not consider it 
 necessary to decide the point, whether under the statute there could be 
 an acceptance before delivery. Alclerson B. said that he " did not agree 
 with the case of Anderson v. Scott, which, I think, required fuller con- 
 sideration." His lorship added : " Here there was evidence of an accept- 
 ance by the inspection and separation of the sheep at the time when they 
 were in the vendm''s possession, and very slight evidence of the accept- 
 ance of the sheep when received would be sufficient to show an acceptance 
 coupled with the receipt, because they were previously selected by the 
 vendee himself. It is only a question of degree. In truth the previous 
 selection of the sheep is very material to show the nature of the accept- 
 ance when the sheep were received. The defendant says, ' It is all 
 right.' If he had never seen the sheep, and there liad been no previous 
 acceptance, his saying ' It is all right ' would have had no eflect ; but 
 when he had previously examined and selected the sheep, it was for the 
 jury to say whether he did not mean, ' These are the sheep which I 
 selected.' Suppose, in the case of a remarkable animal, for instance a 
 liorse with peculiar spots, the vendee had said, ' All right,' there could 
 be no doubt he would mean, ' This is the horse I bought.' That
 
 BUYING HORSE FOR LESS THAN £10. 585 
 
 shows the whole question is one of degree only ; and the previous fact 
 of selection may well be used as a circumstance from which the jury 
 might properly infer an acceptance at the time of the receipt." 
 
 Where the conirad for the sale of a horse is not to he iierformed within 
 a year, the agreement itself, or some memorandum or note of it, must 
 be in writing, and be signed by the party to be charged, or his agent, 
 within the 4th section of the Statute of Frauds. 
 
 If the price is under £10, and the seller states ivhat he aslcs for his 
 horse, and a Iniycr says he tvill yive it, the bargain is struck, and neither 
 of them is at liberty to be off, provided that immediate possession of 
 the horse or the money be tendered by either side. 
 
 Where a horse is houyld for any in-ice or consideration vnder the value 
 of £\0, and there is not an actual imyment and delivery at the time of 
 sale, and the contract is to he performed within a year, the bargain may 
 be bound by any of the following five methods : 1st, an agreement to 
 deliver the horse on a certain day, a day also being agreed uj)on for pay- 
 ment of the price, and, in default, the buyer may have an action for the 
 horse, or the seller for his money ; '•l\\^^',^\ii payment of the lohole price, 
 and then if the seller do not deliver the horse the buyer may sue him, 
 and recover it ; "ivdAj , part payment of the purchase-money , and then the 
 buyer may sue for and recover the horse, or the seller may sue for the 
 residue of the price ; 4thly, an earnest may be given, and even the 
 smallest sum is sufficient, and in such case the remedies are reciprocal ; 
 5thly, an actual delivery of the house, and even if there be none of the 
 purchase-money paid, no earnest given, or no day set for payment, the 
 seller may at any time sue the buyer, and recover his money {OliplianVs 
 Law of Horses, 2nd ed., p. 4). 
 
 In Marvin v. Wallace, a complete verhal haryain had heen made for the 
 sale of the horse in qvestion hy tlie plaintiff to tlie defendant for more than 
 £10 ; and hefure there had heen an actual delivery of the horse, the p)laintiff 
 asked the defetidant to lend him it to use for a short time, as he had two 
 or three journeys to make. Defendant assented, telling him to take 
 care of him ; and the horse remained a fortnight with the plaintiff, not 
 as vendor, but as borrower, during which he threw him down and broke 
 his knees. On the day fixed for the return of the horse, plaintiff sent 
 him to the defendant who said he had been injured in the interval, and 
 would not receive him. There was no part payment, and no memo- 
 randum in writing. It was objected that there was no evidence to go 
 to the jury of any acceptance and actual receipt of the horse, but Lord 
 Camphell C.J. would not stop the case. Defendant then gave evidence 
 that by the original verbal bargain the horse was not to be delivered 
 for a month ; and that plaintiff retained possession, not as a borrower.
 
 586 MEANING OF ACCEPTANCE. 
 
 bnt by virtue of the original bargain. His lordship accordingly left the 
 question to the jury, " whether the verbal contract for the sale of the 
 horse was complete before there was any agreement about the horse 
 being returned by the plaintiff, and the horse was lent to the plaintiff 
 by the defendant as his owner ; or, whether the retainer of the horse 
 was part of the bargain ? " The jury found the contract to be complete 
 before the permission to keep the horse was given to the plaintiff, and 
 that the horse was lent by the defendant as his owner. A verdict was 
 directed for the plaintiff, with leave to move to enter a verdict for the 
 defendant, or a nonsuit, on the ground that there was no evidence of a 
 sufScient acceptance of the horse in question within the 17th section of 
 the Statute of Frauds. 
 
 The Court of Queen's Bench discharged the rule. Erie J. said : 
 " The question is whether the buyer has accepted the horse, and 
 actually received it. All that passed has been merely by word of 
 mouth. There has been nothing which, according to the language of 
 many cases, amounts to manual delivery. The statute for many years 
 was very much praised. I believe that the person who inserted the 
 words had no notion what he meant by ' acceptance.' That opinion I 
 found on the everlasting discussion which has gone on, as if possession 
 according to law could mean only manual prehension. It may mean 
 that, or it may mean handing over to a servant ; but the question is 
 whether there has been an exercise of the right inconsistent with any 
 supposition but that of ownership ; whether there is an actual sale 
 and an act which is inconsistent with anything but ownership ? When 
 you apply that here, you have the finding of the jury that there was an 
 actual sale, and that the purchaser was assumed to be in actual posses- 
 sion. He permitted the other party to retain the horse. All, indeed, 
 passed by word of mouth ; but to my mind it is a most decisive 
 case of possession, and one in which the vendor had lost his claim 
 
 to lieu." 
 
 Lord Campbell C.J. added : " I agree with the rest of the Court, 
 while the Statute of Frauds remains we are bound to give effect to it, 
 and shall do so ; but we are doing so here. There has been an accept- 
 ance and receipt of the chattel on the finding of the jury, which is quite 
 justified by the evidence. The vendor became the bailee of the horse, 
 and held by the authority of the vendee. The case is within the excep- 
 tion of section 17. I must say that, giving, as I do, full effect to the 
 statute while it remains, I shall rejoice when it is gone. In my opinion 
 it does much more harm than good. It promotes fraud, rather than 
 prevents it, and introduces distinctions which I must confess are not 
 productive of justice."
 
 EXTENSION OF STATUTE OF FRAUDS. 587 
 
 The statute was furilier extended by 9 Geo. IV. c. 1 4, b. 7, by which 
 it is enacted that, " tlw provisions of the Stalnte of Frauds shall extend 
 to all contracts for the sale of goods to the value of £10 or upwards, 
 notwithstanding the goods may he intended to he delivered at some future 
 time, or mag not at the time of such contract he actually made, procured^ 
 or provided, or fit or ready for delivery, or some act may be requisite 
 for the making or completing thereof, or rendering the same fit for 
 delivery." It is now well settled that the 17th section of 29 Car. II. 
 c. 3, and the 7th section of 9 Geo. IV. c. 14 (Lord Tenterden's Act) are 
 to be read together. The effect of the last-mentioned enactment, there- 
 fore, is to substitute "value" for "price" in the 17th section of former 
 statute, and to adopt a uniform rule in all cases. A contract for the 
 sale of goods of the value of £10 or upwards is not the less within 
 such 17th section, because it embraces something, viz., agistment to 
 which the statute does not extend. Hence, as in Harman v. Reeve, 
 where it was agreed by parol between A. and B. that the former should 
 sell the latter a mare and foal, and should at his own expense keep 
 them until a certain day, and that A. should also for a given time keep 
 a mare and foal belonging to B., and that in consideration of all this B. 
 should fetch away A.'s mare and foal on the day named, and pay him 
 £30, it was held by the Court of Common Pleas that this, so far as it 
 related to the sale of A.'s mare, was a contract within the 17th section 
 of the Statute of Frauds, and void for want of writing, no point having 
 been made at the trial as to the value. 
 
 Where cattle were alleged in the indictment to he the property of a 
 person who, it appeared in evidence, ivas merely the agister, and not the 
 actual owner, the Judges, in Rex v. Woodward, held it to be sufficient. 
 He may also maintain trespass against any one who takes the beasts 
 (2 Roll. Abr. 551). And so where a horse is sold at a re^Dository, the 
 auctioneer may maintain trespass or an indictment for larceny in his 
 own name, if it be stolen before delivery ; and such special property 
 also entitles him to maintain an action for goods sold and delivered 
 against the buyer, though the sale was at the house of such third 
 person, and the goods were known to be his property {Williams v. 
 Millingtoji). The general liabiliig of an agister was considered in Broad- 
 water V. Blot. The defendant, a farmer, had received the plaintiff's 
 horse to agist, but it strayed out of the field with several more of defen- 
 dant's horses, and was lost ; while the others were merely impounded. 
 The defendant had advertised, and offered to bear half of plaintiff's 
 expenses. It did not appear that the loss of the horse was occasioned 
 by the defect of the fences, or that he had strayed through the gates at 
 the time that the witnesses spoke to their being open ; but evidence was
 
 5S8 COMPENSATION FOR AGISTMENT. 
 
 given of g-eneral bad condition of fences on the farm, and negligence as 
 to leaving gates open. Gibhs C.J. said: " All the defendant is obliged 
 to observe is reasonable care. He does not insure, and is not answer- 
 able for the wantonness or mischief of others. If the horse had been 
 taken from his premises, or had been lost by accidents which he could 
 not guard against, he would not be responsible. I admit that particular 
 neo-ligence must be proved, by occasion of which the horse was lost ; or 
 gross general negligence, to which the loss may be ascribed in ignor- 
 ance of the special circumstance which occasioned it. If there were 
 a want of due care and diligence generally, the defendant will be liable. 
 The question is, were the defendant's fences in an improper state at the 
 time the horse was taken in to agist ? Did he apply such a degree of 
 " care and diligence to the custody of the horse as the plaintiff", who 
 entrusted the horse to him, had a right to expect ? I shall leave it to 
 the jury" — who found for the value of the horse. 
 
 AVhere a tenant of one Rev. Hugh Smith relied on the prescriptive 
 riuht of his landlord to have for himself and his tenants, &c., occupiers 
 ot^he messuage and farm of Blaenmerin, " the sole and exclusive right 
 of pasture and feeding of sheep and lambs," on the locus in quo, as to 
 the said messuages and farm appertaining, it was held by the Court of 
 Queen's Bench, confirming the ruling of Coleridge J., that this did not 
 entitle him to take in the sheep and lambs of other persons upon tack 
 to pasture thereon, for that by the terms of the grant some interest in 
 the pasture was reserved to the lord, and the al)ove practice was preju- 
 dicial to such interest {Jones v. Richard). 
 
 As regards com2)ensation for agistment in Harman v. Reeve, it was 
 suggested, |;^r Curiam : " Could not the plaintiff sue the defendant for 
 the six weeks' agistment of the mare and foal on the principle suggested 
 Ijy Bagleij B. in Wood v. Benson and Earl of Falmouth v. Thomas ? 'It 
 by no means follows that, becausre you cannot sustain a contract on the 
 whole, you cannot sustain it in part, provided your declaration be so 
 framed as to meet the proof of that part of the contract which is good.'" 
 A contract for agistment is, according to Jones v. Flint, not a contract 
 for an interest in land. The question as to whether agisted cattle are 
 the suhject of lien was first decided in Chapnan v. Allen, where five kine 
 were put to pasturage at twelve-pence a-weck each. The Court said 
 that it " was not like to the case of an inne-keeper or tailor ; they may 
 retain the horse or garment delivered to them until they be satisfied ; 
 but not when one receives horses or kine, or other cattell, to pasturage, 
 paying for them a weekly summe, unless there be such agreement 
 between them." 
 
 Lord Lllenhorovgh C.J. thus remarked on this case in Chase v. West-
 
 NO LIEN IN CASE OF AGISTMENT. 589 
 
 more : "It does not appear to have been decided on the "Tonnd supposed, 
 but rather on the ground that a person taking in cattle to agist could 
 not detain them until the price be paid ; or if he could in general do so, 
 yet that in the particular case the defendant was guilty of a conversion 
 as against the plaintiff, who was a purchaser of the cattle, by having 
 delivered them over to a third person, on receiving from such third 
 person the amount of his demand." 
 
 And in Hohbij v. R^issell (exor. de son fort of John Smith), where it 
 was in evidence that the defendant, after the death of John Smith, 
 obtained possession of a pair of new boots, a cow and calf, a barren 
 cow, a pony-mare and colt, and a hackney mare, which had been his 
 property ; and that at the time of his death the cow and calf were 
 agisted with Mr. E. Jones, and that the defendant paid Mr. E. Jones 
 for their agistment, in order to obtain possession of them, Cresswell J. 
 ruled that the defendant was not entitled to any allowance in respect 
 of what he paid Mr. E. Jones, as the latter had no lien on the cattle 
 for their agistment ; and the Court of Exchequer refused a rule for a 
 new trial. 
 
 The cases on the subject were also alluded to at some length by Lord 
 Lyndhurst C.B., in his judgment in Judson v. Ether idge, where to a 
 count in detinue defendant pleaded that the plaintiff had delivered the 
 horse to him to be stabled and taken care of, and fed and kept by 
 him for the plaintiff for reward, and that £10 became due to him from 
 the plaintiff as a reasonable reward, and so justified the detainer for 
 that sum ; but on general demurrer the plea was held bad. Lord 
 Lyndhurst C.B. said : " Upon this plea, the question is whether, on 
 the state of facts disclosed, the defendant has or has not a lien upon 
 the horse. I am of opinion that he has no lien. The present case is 
 distinguishable from the cases of workmen, and artificers, and persons 
 carrying on a particular trade, who have been held to have a lien by 
 the value of labour performed in the course of their trade upon chattels 
 bailed to them. The decisions on the subject seem all one way. In 
 ChaTpman v. Allen, it was decided that a person receiving cattle to agist 
 had no lien. In Yorl(e v. Greenhaugh, it was held, not merely by C.J. 
 Holt,, but by the whole Court, in their decision, that a livery-staih 
 keejier had no lien." Bolland B., who acknowledged that, according to 
 Jacobs V. Latovr, a trainer has a lien, added : " The doctrine might 
 perhaps be extended further, so as to embrace the case of a breaker 
 into whose hands a young horse is placed to be broken in. The breaker 
 makes it a different animal. The chattel is improved by the applica- 
 tion of his labour and skill. In the present case it does not appear 
 that anything was to be done to the animal, to improve it or render
 
 590 LIEN BY TEAINER OF KACE-HOESES. 
 
 it a different animal, by the application of the skill and labour of the 
 bailee." 
 
 In Jackson y. Cummins and Others, which was a case of trespass for 
 entering an outhouse of the plaintiif' s, and seizing and driving away 10 
 cows which had been depastured on the defendant's land, the jury 
 found that there was no such agreement, that the defendant should 
 retain and keep possession of the cows until the amount due for pasturage 
 was paid, and gave their verdict for the plaintiff, ParTce B. reserving 
 leave to the defendant to move to enter a nonsuit, if the Court were of 
 opinion that a lien existed at common law for the agistment of cattle, 
 but the rule was discharged. 
 
 It was ruled by Parke B., in Binns v. Piijoff, that an innkeeper has no 
 lien on a horse for its keep, loiJess it he Irovijht hy a guest ; but he can 
 only retain it for its own keep, not for that of others the property of 
 the same person. And see Smith v. Deartore. Speaking of a lien on 
 a racehorse, in Forth v. Simpson, Patteson J. said : " An innkeeper's 
 lien stands on a different principle ; he has a lien on the guest's horse, 
 because the law obliges him to take it in. My brother Parke's view of 
 a trainer's lien, as stated by him in Jackson v. Cummins, exactly sup- 
 ports our decision, which is also quite consistent with his observation 
 in the same case, that where a horse is to be trained for a specified race 
 the trainer may have a lien for his charges until the horse is given up." 
 The judo-ment oi Erie J. in this case shows that an ordinary trainer has 
 no lien on the horses vnder his charge. His lordship said : " A trainer 
 of racehorses has the benefit of one general principle, that the person 
 exercising care and skill in the improvement of a chattel is entitled to 
 a lien on such chattel for his charges in respect of his care and skill ; 
 but there is another general principle, that in order to complete a right 
 of lien there must be a continuing right of possession, and this principle 
 defeats the claim of lien in the present case. It is quite clear, upon 
 the evidence, that the owner was entitled to have his horses re-delivered 
 to him for the purpose of running at any races he pleased, and this is 
 quite inconsistent with the trainer's right of continuing possession." 
 Hence it would seem that if a case arose under the "half-profits" 
 principle which has si)rung up of late years, whereby the owner sends 
 his horse to a trainer and sti])nlates that he is to train and keep him 
 free of expense, and run him where he likes, and to give the owner half 
 his winnings, that the trainer would have a lien. 
 
 SuV)ject to the above qualification, which was made by the Court of 
 Queen's Bench in Forth v. Simpson, and which seems to have struck 
 Aldirson B. in Smrfe v. Morgan, the general ride of lien was thus ex- 
 plained by Parke B. in the latter case : " The artificer to whom goods
 
 auctioneer's lien. 591 
 
 are delivered for the purpose of being worked np into form ; or the 
 farrier, by whose slcill tlie animal is cured of a disease ; or the horse- 
 breaker, by whose skill he is rendered manageable, have liens on the 
 chattels in respect of their charges ; all such specific liens being con- 
 sistent with the principles of natural equity are favoured by the law, 
 which is construed liberally in such cases. This being the principle, 
 let us see whether this case falls within it ; and we think it does. The 
 object is, that the mare may be made more valuable by being in foal. 
 She is delivered to the defendant, that she may by his skill and labour, 
 and the use of his stallion for that object, be made so ; and we think, 
 therefore, that it is a case which falls within the principle of those 
 cited in argument." Here the mare had been sent more than once to 
 the defendant's, who was a farmer, to be covered by his stallion ; but 
 as lis. for the last service was not paid, defendant refused to deliver 
 up the mare until the lis. (which was not tendered) and £9 7s. Hd. 
 which included the fee for covering other mares of plaintiff's and some 
 poor-rates, was paid. In an action for trover, to which "Not guilty" 
 and "The mare was, and is, not the property of the plaintiff" were 
 pleaded, Parke B. directed a verdict for £25, reserving leave to the 
 defendant to enter a nonsuit on three points. It was held (1) that the 
 defendant had a specific lien for covering the mare, as she might be 
 made more, valuable by proving in foal ; (2), that the claim of defendant 
 to retain the mare for his general balance was not a waiver of his lien 
 for his charge on the particular occasion, and did not dispense with the 
 necessity of a tender of that sum ; and (3), that even if the covering of 
 mares with his stallion was done within the exercise of his ordinary 
 calling, on a Sunday, that still, it having been executed, the lien 
 attached. 
 
 The question as to vhether an auctioneer has a lien on a horse for his 
 commissio?i and charges was very much considered in Eobinson v. Rutter, 
 and it was decided that he had a lien. 
 
 It was decided by the Court of Queen's Bench, in WarJow v. Ham- 
 son, that although at a sale by auction, the auctioneer may, after a 
 hiddiiig lias been accepted, become the agent of the lyidder for the purpose 
 of signing a memorandum of the agreement, he is not an agent for the 
 bidder at all till the bidding is accepted; and until the hammer is 
 knocked down both the bidder and the vendor are free, and may retract 
 if they choose to do so. Hence, where the owner of a mare sent her 
 to the defendant with instructions to sell her by auction without 
 reserve, and the plaintiff was the highest bond fide bidder, but the 
 mare was knocked down to the owner, who made a higher bid, it was 
 held that the plaintiff could not maintain an action against the
 
 592 ^ LIABILITY OF AUCTIONEER. 
 
 defendant, on the ground that he was his agent, and was bound to 
 complete the contract on his behalf. The defendant was in partner- 
 ship as auetioneer with one Brothcrton, who kept a horse repository 
 at Birmingham. Among the lots advertised to be sold on June 24th, 
 1858, were "Boxes 8, 9 & 10, the three following horses, the property 
 of a gentleman, without reserve." " No. 24, ' Janet Pride,' a brown 
 mare without white, five rears old, by lago out of Stonny Petrel," &c. 
 There were printed conditions of sale, of which the first was: "The 
 highest Viidder to be the buyer, and if any dispute arises between two 
 or more bidders, before the lot is returned into the stables, the lot so 
 disputed shall be put up again and resold, or the auctioneer may 
 declare the purchaser." The plaintiff attended at the sale, and when 
 ' Janet Pride ' was put up he bid for her 60gs. ; almost immediately 
 after the owner bid 61gs., and as the plaintiff was informed that it 
 was the owner who made that bid, he abstained from making any 
 further bid, and the mare was knocked down. The plaintiff then 
 went to the office of the defendant, and claimed the mare as being 
 his property, but the defendant refused to give her up, and allowed 
 the owner to take possession of her. The jury returned a verdict for 
 the plaintiff, and leave was reserved to the defendant to move for a 
 rule to show cause, why the verdict should not be set aside and a 
 verdict entered for him, or why a nonsuit should not be entered. The 
 Court made the rule, which gave the plaintiff the choice of either of 
 these courses, absolute. The counsel for the defendant relied upon 
 Payne v. Cave and BartleU v. Pi/rnelh 
 
 And j?i?r Curiam : " Payne v. Cme has been considered good law for 
 nearly seventy years. That case decided that a bidding at an auction, 
 instead of being a conditional purchase, is a mere offer ; that the 
 auctioneer is the agent of the vendor ; that the assent of both parties 
 is necessary to the contract ; that this assent is signified by knocking 
 down the hammer, and that till then either party may retract. This 
 is quite inconsistent with the notion of a conditional purchase by a 
 bidding, and with the notion of there being any personal promise by 
 the auctioneer to the bidder, that the bidding of an intending 
 purchaser shall absolutely be accepted by the vendor. The vendor 
 himself and the bidder being respectively free till the hammer is 
 knocked down, the auctioneer cannot possibly be previously bound. 
 At this auction, the mare was never knocked down to the plaintiff, 
 and the relation of principal and agent between him and the de- 
 fendant never had commenced. We are not called iipoji to say whether 
 thfire is any or vhat remedy on the conditions of sale ayainst the vendor, 
 v)h9 violates the comlition that the article shall be bona fide sold icithoid
 
 RECOVERY OF KEEP WHERE WARRANTY BROKEN. 593 
 
 reserve ; but we are clear that the bidder has no remedy against the 
 auctioneer, whose authority to accept the offer of the bidder has been 
 determined by the vendor, before the hammer has been knocked down." 
 This tase has been taken into a Court of Error. 
 
 It was settled by the Court of Queen's Bench, in Caswell v. Coare, 
 that unless the plaintijf licul previouslij iendered the horse, he cannot 
 recover for the kee}), because it was not the defendant's fault that the 
 plaintiff kept him ; and a rule was made absolute to reduce a £30 10s. 
 verdict (which included lOgs. for keep) to £20, the plaintiff under- 
 taking to deliver back the horse, whose warranty was broken, free 
 of all expense. And per Littledale J., in 3IacJccnzie v. HancocJc, where 
 the defendant, after due notice, refuses to receive a horse back, the 
 plaintiff may recover the keep for as long a time as may be reasonably 
 occupied in endeavouring to sell the horse to the best advantage. In 
 Ellis V. Chinnock, where a horse warranted " sound, free from vice, 
 and quiet in harness " was sold on May 7th, and refused when tendered 
 back on May 30th, the same rule was acted upon by Coleridge J., and 
 the plaintiff recovered the amount of its expenses at a livery-stable 
 from the latter period up to Eeading Fair (July 25th). Again, in 
 Chesterman v. Lamb, where the defendant had notice at the end of a 
 fortnight (July 11th) that the horse was unsound, and on September 
 16th it was sold, the whole of the horse's expenses at livery from 
 July 26th were allowed. Lord Denman C.J. said: "The question 
 whether the horse has been kept an unreasonable time before the 
 resale is a question for the jury ; " but the two reports of the case 
 differ as to whether the £9 176-. claimed for keep, included keep from 
 the time the notice of unsoundness was given, or merely the livery- 
 stable charges. 
 
 The law upon the subject is thus laid down in " Selwyn's Nisi 
 Prius," 8tli edition, vol. i., p. 657 : As soon as the unsoundness is 
 discovered, the buyer should immediately tender the horse to the seller ; 
 and if he refuses to take him hack, sell the horse as soon as possible 
 for the best price that can be procwed, for the purchaser is entitled to 
 recover for the keep of the horse for such time only as would be 
 required to sell him to the best advantage." It may be inferred, 
 from the language of Tindal C.J., in Watson v. Benton, that the 
 expenses of keep up to the time of the offer to return an unsound horse 
 may be recovered as damages. His lordship said : " You will give as 
 damages the difference between the price paid and the real value of the 
 horse, and damages for the expense which the plaintiff was put to 
 Ity selling him that which was of no use to him for a certain time, 
 at least to the time when he offered the horse to the defendant."
 
 59 i DAMAGES ON EETQRXING A HORSE. 
 
 In Ellis V. Chi/uwcJc, keep between may 7th and May oOth was not 
 asked for ; but Coleridge J. in his summing up, expressly said : 
 "All the plaintiff is allowed to do is to keep it for a reasonable 
 time, till he can fairly sell it, and for that time he ought to be allowed 
 for keeping it." 
 
 Where in an action for the keep of a horse (Kinff v. Price) it ap- 
 peared that the defendant rescinded the contract entered into hy his ivife 
 for the sale of the horse same time after the contract was made, he was 
 taken to have rescinded it from the day it was entered into ; and as the 
 horse was kept by the plaintiff in the intermediate time, and was 
 received back by the defendant in improved condition, a verdict for the 
 value of such keep was confirmed by the Court of Queen's Bench. 
 
 The question of damages, on returning a horse, was considered by Lord 
 Denman C.J. in Clar-e v, Maynard, where the plaintiff bought the horse 
 from the defendant at Northallerton Fair for £45, warranted sound, 
 and sold it with a similar warranty to Mr. Collins for £55, which the 
 plaintiff had been obliged to repay, along with £3 3s. for expenses. 
 The horse was sold by auction for £17 14s., and the plaintiff recovered 
 £27 6s. (the difference between that and £45), the expense of bringing 
 the horse to London, the keep of the horse from the time of the pur- 
 chase to the time of sale by auction, and £1 8s. Qd. part of an attorney's 
 charge for service of notice on defendant in Yorkshire (who had not 
 answered two letters on the subject) that the horse would be sold by 
 auction. His lordship disallowed £10 10s. repaid to Mr. Collins, as 
 well as £1 Is. for an examination at the Eoyal Veterinary College, 
 £1 Is. for counsel's opinion, and the attorney's charges for two letters 
 to the defendant, and for preparing a case for counsel. A new trial was 
 moved for, on the ground that the plaintiff should get the £10 extra, 
 not as the value of the good bargain he had lost, but as a remuneration 
 for the capital he had expended and the labour he had bestowed on the 
 horse to increase its value. The Court of Queen's Bench, however, 
 refused the rule, saying it was in substance a claim of compensation 
 for a good bargain, which could not be allowed as damages in an 
 action. 
 
 "Where a horse ivas bought iviih a warranty of soundness, and turned 
 out not to he so, hut only Sgs. out of 12gs. had been paid hy the defend- 
 ant, Lord Kenyon C.J., on its being proved in an action for the 9gs., 
 that the horse at the time of the sale was only worth £1 lis. Gd., and 
 had since been sold for only 30s., held that the plaintiff could only re- 
 cover the value, and nonsuited the plaintiff {King v. Boston). It was 
 laid down in Power v. Welles, that where the contract is still open an 
 action for money had and received will not lie. The plaintiff had given
 
 SUING ON WARRANTY. 595 
 
 a mare of bis own and 20 gs. for a horse of defendant's, wliich, on dis- 
 covering that it was unsound, he sent back with a letter, and put both 
 letter and halter into defendant's hands, who refused to take them, and 
 turned the messenger out of his yard when he asked for the plaintiffs 
 20 gs, and mare back again. There should have been a special decla- 
 ration on the warranty, and trover did not lie for the mare, as the ex- 
 change had been effected, and the property transferred thereby. But 
 where, as in Panne v. WMIe, in reply to an action for money had and 
 received, the defendant admitted the warranty, but denied the unsound- 
 ness and refused to take back the horse or return the money, adding 
 that if the horse were unsound he would do so, and the horse was 
 proved to be a roarer and unsound, Lord ElUiilorough C.J. thought 
 that such special promise to rescind the contract and return the money 
 if the horse were unsound took this out of the general rule, and suffered 
 the plaintiff to have a verdict for the amount. 
 
 The course tvliich a jmrchaser is to pursue, when a warranted horse 
 has proved unsound, was very fully laid down by the Court of Queen's 
 Bench in Street v. Blay. The action was in assumpsit for a horse sold 
 and delivered with a warranty by plaintiff, on Feb. 2nd, 1830, for £43, 
 to defendant, a horse dealer, who sold him to Bailey, one of his cus- 
 tomers, the same day, at a £2 profit. This new purchaser kept him a 
 day and parted with him in exchange to one Osborne, who kept him 
 a day and sold him again to the defendant for £30. No warranty 
 was given except on the first sale, and the defendant sent the horse 
 back lame to the plaintiff's premises, saying that he was unsound, on 
 February 9th; but the latter would not receive him, and brought his 
 action. 
 
 The defendant had a verdict, and Lord Tenter den C.J. reserved the 
 question for the Court, whether or not the defendant, after having sold 
 the horse, could, upon becoming possessed of him again, return him to 
 the plaintiff and refuse payment of the price, by reason of the original 
 unsoundness. The Court of Queen's Bench made a rule absolute for 
 a new trial, or to enter a verdict for a reduced sum in lieu of damages, 
 as the defendant had a clear right of action against the plaintiff for 
 breach of warranty. They held that there was no authority to show 
 that a purchaser may return a warranted article where he has done more 
 than was consistent with the purpose of trial, as exercising dominion 
 of an owner over it, by selling and parting with the property to 
 another, and that supposing it were competent for the defendant to re- 
 turn the horse after having accepted it and taken it into his possession, 
 if he had never parted with it to another, he could not do so after a 
 resale at a profit. He could not require the original vendor to take it 
 
 Q Q 2
 
 596 PURCHASER MUST SUE ON WARRANTY. 
 
 back again, nor by reason of the unsoundness resist an action by the 
 vendor for the price, but might give the breach of warranty in evidence 
 in reduction of damages. And semhU, the jmrchaser of a sj)Ocific war- 
 ranted article, having once accepted it, can in no instance return the chattel 
 and recover the price as money paid on a coisideration ivMch has failed. 
 He must sue on the warrant ij unless there has leen a condition in the con- 
 tract authorising the return, or the vendor has received lack the chattel, 
 and thereby consented to rescind the contract, or has leen guilty of a 
 fraud, which destroys the contract altogether. But where the contract is 
 executory only when the chattel is received, as where goods are ordered 
 of a manufacturer, and he contracts to supply them of a certain quaUty 
 or fit for a certain purpose, the vendee may rescind the contract, if the 
 goods do not answer the warranty, provided he has not kept them a 
 longer time than was necessary for the purpose of trial, or exercised the 
 dominion of an owner over them by selling them. The authority of 
 this case was fully acknowledged in the following year by the Court of 
 Exchequer, in Gompertz v. Denton, where they expressly decided that 
 the purchaser of a horse can recover for a breach of warranty in an 
 action of damages only, and cannot sue on the indelitatus counts, as on 
 a fiiilure of the original consideration, unless under the circumstances 
 pointed out above ; and Lord Lyndhurst C.B. said : "The case of Street 
 V. Blay seems to heve been very much considered." 
 
 It was also settled, in Hurst v. Orhell, that ivhere a horse has been 
 bought and the price paid, but the jnir chaser, by the terms of the axjreemeni, 
 has the option of returning tlie horse iviihin a certain time allowing a 
 certain sum for the use of it, the residue of the price may be recovered 
 by him after the horse has been returned or tendered in an action for 
 money had and received. Here the plaintiff had agreed to buy a pair 
 of horses for X80 from the defendant, £10 to be allowed by him out 
 of the £80 if he returned the horses within the month, and he was, 
 to pay £80 if he kept them over that time. Defendant gave the 
 following receipt : 
 
 "£80. Received of — Hurst, Esq., eighty pounds, for two grey 
 horses, warranted sound and quiet in harness. Ten pounds more 
 if the horses are kept. 
 
 " Henry Orbell." 
 
 The ])]aintiff returned the horses within a month. The objection that 
 the action should have been on the special contract, or that the plain- 
 tiff should have proved liis readiness to pay the £10 before attempting 
 to recover back any part of the £80 as money had and received to his
 
 SALE OF STOLEN HORSES. 597 
 
 use, was held to be much "too refined." The defendant merely held 
 the £70 to the use of the party who should be entitled at the time when 
 the option was to be determined. 
 
 It was ruled by the Court of Common Pleas, in Lee .v. Bayes and 
 Eohinson, that the sale by puhlic auction at a liorse rejwsttory out of the 
 City of London is not a sale in market overt, according to the statutes 
 2 & 3 Ph. & M. c. 7, and 31 Eliz. c. 12 ; and also on the authority of 
 }Vlute V. Spettigue (which overrules Gimson v. Woodfall and Peer v. 
 Humphreys), that the obligation which the law imposes on a plaintiff to 
 prosecute the party who has stolen his goods, does not apply where the 
 action is against a third party innocent of the felony. The facts of the 
 case, which were very hitricate, were as follows : 
 
 The plaintiff's horse had been stolen out of the Essex marshes, and 
 the defendant Bayes bought it on commission, by public auction, at 
 Ilea's Horse Repository, Nov. 27, 1855, through the agency of one 
 Proctor, for £8 5s. His customer did not like it, and it was sent back 
 again to Robinson's Repository in Little Britain, where it w^as claimed 
 by the plaintiff. Bayes told the plaintiff where he had bought the 
 horse, but he refused to give it up, and Robinson and his clerk refused 
 to do so without his authority. A police officer was procured, and Lee 
 gave Bayes in charge for stealing the horse. The inspector refused to 
 take the charge, but sent a constable with the parties to Rea's Reposi- 
 tory, where the auctioneer satisfied the plaintiff that the horse had been 
 bought there. Lee, Bayes, and the constable then went back to Robin- 
 son's, when Bayes, Robinson's son, and the foreman refused to give up 
 the horse, in spite of the offer of an indemnity to Robinson ; but on the 
 7th of December, Robinson's attorney offered by letter to give it up, on 
 an indemnity being given to himself and Bayes. .The action was 
 brought for a wrongful conversion and detainer. The defendants main- 
 tained that as the horse was sold at a public auction, the plaintiff could 
 not recover, but that at all events he was bound first to prosecute the 
 thief to conviction, and that there was no evidence of di joint conversion. 
 The jury found that Bayes had purchased the horse lomi fide, and 
 returned a verdict for the plaintiff, damages £30, to be reduced to £5 
 if the horse was returned. WiUes J. said : " Here the defendants had 
 notice that the horse belonged to Lee ; and although what passed on 
 the first occasion when the horse was demanded was merely a reference 
 to Bayes, as the party who had deposited it as owner, on the second 
 occasion there was an absolute and unqualified refusal to acknowledge 
 Lee's title and an assertion of the title of Bayes, which clearly was 
 evidence of a conversion. The letter of the 7th of December, though 
 written after the commencement of the action, may serve to throw light
 
 598 SELLING GLANDERED HORSE. 
 
 on the previous transaction." The Court held that there was evidence 
 of a joint conversion, and discharged a rule to enter a nonsuit or a 
 verdict for the defendant. 
 
 The 16 & 17 Vicf. c. 62 (which was continued by 19 & 20 Vicl. c. 101), 
 inflicts by sec. 1 a £20 penalty on anyone " bringing or attempting to 
 bring for sale any horse or other animal into any market, fair, or other 
 open or public place, where animals are commonly exposed for sale, 
 knowing such horse or other animal to be affected with or labouring 
 vnder the disease called glanders," or " turning, keeping, or depasturing 
 any horse or other animal infected with or labouring under such disease 
 in or upon any forest, chase, wood, moor, marsh, heath, common, waste 
 land, open field, road side, or other undivided or uninclosed land." A 
 question arose, in Hill v. Balls, on the meaning of "puilic jjZace " in 
 this act. The declaration stated that the defendant was possessed of a 
 glandered horse, and knowing it had such disease caused it to be sold 
 by auction at a Horse Repository, and the plaintifl' believing it to be 
 healthy bought it at the sale and paid for it. It was utterly worthless 
 from disease, and the plaintiff not only paid a veterinary surgeon to 
 examine it, but it mortally infected another horse of his in the same 
 stable, and the plaintiff paid a large sum of money in endeavouring to 
 cure the infected horse. It was held that no cause of action was dis- 
 closed, since the declaration not being founded on any fraudulent mis- 
 representation or breach of warranty did not show that the defendant 
 liad committed an illegal act, for although by the statute the bringing 
 or attempting to bring for sale a horse " into any market, fair, or any 
 other open or public place," knowing it to be infected with the glanders, 
 is made an offence, yet a horse repository is not necessarily a " public 
 ]>lace" within the meaning of the statute, and it was not stated to be 
 huch a place. 
 
 The subject of a conspiracy to cheat was considered in Rex v. Pywell. 
 The defendant Pywell advertised the sale of horses, which he undertook 
 to warrant. General Maclean, on application at his stables, saw 
 another of the defendants, who said he had lived with the owner of the 
 liorse, knew it well, and would warrant it sound. The horse was 
 Ijought with a warranty for 50gs.., and turned out worthless before the 
 week for returning was expired. Lord Ellenborough C.J. stopped the 
 case, and said " that if this was to be considered an indictable offence, 
 then instead of all the actions which had been brought .on warranties, 
 the defendants ought to have been indicted as cheats, and that no 
 indictment could be maintained in a case like this, without evidence of 
 a concert between the parties to effectuate a fraud." 
 
 This case was followed by Reg, v. Kenriclc, which was an indictment
 
 CONSPIRING TO CHEAT BY SALE OF HORSES. 5 ^'9 
 
 found at the Middlesex Sessions, and removed by cerfiorari, at the 
 instance of the defendants. It chanjed the two defendants with con- 
 spiriny to cheat and defraud one Feather stonhavgh hy false pretences as 
 to the sale of two horses, and the verdict of guilty was confirmed by the 
 Court. In his elaborate judgment on the law of false pretences, in Reg. 
 V, Bryan, Erie J. thus explained the diflerence between the two fore- 
 going cases : " Although in the case of Rex v. Pywell it was held not 
 indictaUe to praise the quality of a horse, hioivinj it not to le umihy of 
 the praise put on him, yet in the case of Reg. v. Kenrklc, as far as I 
 understand the case, for I was counsel for the man, the fact which 
 brought that case within the definition was the fact that Kenrick 
 averred that these horses had been the property of a lady deceased, 
 were now the property of her sister, and had never been the property 
 of a horse dealer, and were quiet and proper to drive. The purchaser 
 wanted those horses for a woman of his family ; the substance of the 
 contract was, that they were the property of a lady, who had driven 
 the horses, and it was a false assertion of a definite existing fact ; ' they 
 are the property of the sister now,' when they were the property of 
 another person : 'they never were the property of a horse dealer,' 
 whereas they were the property of a horse dealer, and had run away 
 and produced a fatal accident. The case of Reg. v. Kenrklc was not the 
 warranting a horse sound, as in the case of Rex v. Doddridge, but it 
 was the affirming of a false fact, which the party knew to be false, and 
 on that ground the conviction proceeded." 
 
 His lordship also observed : "In the ordinary case of a man coming 
 up to the seller of a horse at a fair, and saying, ' Allow me to try that 
 horse,' and he rides away and sells it, if the jury are of opinion that he 
 got possession animo furandi, it is a larceny. But if he were to profess 
 to the seller of the horse, 'I like the horse, and I will pay you next 
 Monday,' and the seller says, 'I agree to that,' although the jury find 
 that he did that animo furandi, unquestionably that was not indictable 
 before stat. 7 & 8 Geo. IV. c. 29, s. 53, which seems to make persons 
 responsible in a criminal court, where there was a contract of sale ; but 
 yet it fell within the same category of criminal intention, as the cases 
 I have adverted to, where the possession was obtained animo furandi. 
 Looking at all the cases which have been decided there, those that seem 
 to have been the subject of the greatest comment, appear to me to fall 
 within the principle, that where the substance of the contract is falsely 
 represented, and by reason of that the money is obtained, the indictment 
 is good " {ib.). 
 
 According to Whiie v. Spettigue, an action of trover is maintainalle to 
 recover the value of goods u'hich have leen stolen from the plaintiff, and
 
 OOO RFX'OVEFvY OF STOLEN GOODS IN TROVER. 
 
 which the defendant has innocently piu'chascd, although no steps have 
 been taken to bring the thief to justice. 
 
 Goods which have been stolcji may he recovered in trover from the pur- 
 chaser of them in market overt, upon a conversion by him, subsequent to 
 the conviction of the felon, without any order of restitution having been 
 made; for the eflTcct of the 7 & 8 Geo, IV. c. 29, s. 57, is to revest the 
 property in stolen goods in the original owner upon conviction of the 
 felon {Sylvester \. Scattergood). And ^;<?r Lord CampMl C.J. : "It is 
 admitted that the sale in market overt would be no answer to the action 
 if an order of restitution had been made. We have now to determine 
 Avhat is the consequence of such an order being wanting. The plaintifl: 
 must rely on the statute, as at common law the property is permanently 
 changed by the sale in market overt, and looking at the statute we must 
 take it, that on the conviction of the thief the property revests. The 
 stat. 21 Hen. VIII. c. 11 restored the party to his goods, and that could 
 not be that he had merely a right to retake them under a writ of resti- 
 tution. The present act provides that ' the property shall be restored.' 
 I think both the statutes must be taken to have the same meaning, and 
 their object cannot be effectually carried out unless we suppose the right 
 of property to be restored to the owner on conviction, without any order 
 being made. At the same time, it is much to be regretted whenever an 
 order is not made so as to obviate the necessity of an action ; but it is 
 not a condition precedent, and this action is well brought. The 
 dictum of Bidler J. in Horwood v. Smith, that the property of the 
 plaintiff begins after the conviction of the felon, accords with our 
 view, and is decisive of the case." 
 
 Douglas v. Corhett was a somewhat remarkable action for malicious 
 prosecution for sheepi-stecding. The plaintiff was a small farmer, and 
 in October, 1855, sold seven sheep. The purchaser took them to 
 Southam fair, where defendant, a sheep-farmer, claimed six as belong- 
 ing to a parcel of ten stolen from him in September, 1855. Plaintiff 
 said the whole seven were part of a lot of 17 he had had for months, 
 and he had still four of the lot left at his farm, which defendant might 
 see. Defendant went to plaintiff's farm with his shepherd and a police- 
 man, and his shepherd claimed one of the four as belonging to the 
 ten. The plaintiff came up while the shepherd was in the act of 
 leading it away, and after an angry discussion said it was one of 
 the 17 that he had bought at Banbury fair, and the defendant said 
 it was one of ten stolen from his field in September. Good,' a neigh- 
 bour of plaintiff's, on being appealed to by the plaintiff, said it was not 
 one of the same breed as the 17 he got from Banbury fair, and defend- 
 ant drove the four away. Plaintiff sued him in the County Court, and
 
 INJURY OR LOSS OF CHATTELS AT INN. 601 
 
 defendant laid an information before a magistrate for felony. The 
 plaintiff at first did not give satisfactory proof that he had purchased 
 sheep at all, and was committed for trial, but acquitted. In the 
 present trial it appeared on the balance of testimony that the sheep 
 was really one of the 17 purchased by the plaintiff' at Banbury in 
 June, and could not have been stolen from defendant m Septem- 
 ber; but still there were many facts to lead to the conclusion that 
 the sheep was not one of the 17, but one of the ten. Defendant, 
 as it appeared, laid an information merely on the advice of his 
 attorney, as being the shortest way to stop proceedings in the County 
 Court. 
 
 Bramtvell J. told the jury that the question of malice was for them, 
 but expressed a strong opinion that they ought not on this evidence to 
 find it. He told them, that as to the question of reasonable and 
 probable cause, there seemed no doubt that defendant bona fide believed 
 it was one of his stolen sheep, and asked the jury to find as a fact 
 " whether defendant had reasonable ground for that belief ? " The jury 
 found he had ; and his Lordship ruled that there was reasonable and 
 probable cause for instituting the prosecution, and that therefore the 
 question of malice became immaterial, and directed a verdict for de- 
 fendant. A rule nisi for a new trial for misdirection was discharged 
 {Erie J. diss.). 
 
 When chattels have deeti deposited in apullic inn, and there lost or in- 
 jured, the 2)7-imd facie presumption is that the loss or damage was 
 occasioned by the negligence of the innkeeper or his servants. But 
 this presumption may be rebutted; and if the jury find in favour of 
 the innkeeper as to negligence, he is entitled to succeed on a plea of. 
 Not guilty. Thus in Dawson v. Ghamney, where the plaintiff gave his 
 horse on a Penrith market day to an ostler, at the Bell and Bullock, 
 who placed him in the stall ivith a Icicking horse tvhicli injured him, the 
 Court held that as the defendant in his answer convinced the jury that 
 there had been all due care taken, and he got a verdict on the first 
 issue Not guilty, that proof took away the ground of action, according 
 to all the authorities, and a rule for a new trial was refused. 
 
 In Degge v. Tucker the declaration stated that the plaintiff, at de- 
 fendant's request, deUvered to defendant, then being a livery-stable 
 keeper, a horse of the plaintiff, to be by him taken due and proper 
 care of, and to be kept in a separate stall in the defendant's stable, for 
 reward to be paid by the plaintiff in that behalf; and that the defendant 
 accepted the care and custody of the said horse upon such terms ; yet 
 he would not take due or proper or any care thereof, or keep it in a 
 separate stall, and by means of the premises the horse was so Iciclced by
 
 602 KEEPING SWINE A NUISANCE. 
 
 the other horses that it became of no value to the plaintiff. The defeiiJaiit 
 pleaded " Not guilty ; " and at the trial a verdict was found for the 
 plaintiff, with £7 damages. It was held by the Court of Exchequer 
 that the cause of action was founded on contract, and not on tort, and 
 therefore the plaintiff was deprived of costs by the County Corn-t Act, 
 13 & 14 Viit. c. 61, s. 11. In Stannian v. Davis, an innkeeper was 
 held liable for an injury done to a horse which was taken out of the inn 
 and immoderately ridden and whipped, though it did not appear by 
 whom. And an innlceejyer on a marlcet-day i)lacing a gig Monging to a 
 guest in the open street, according to the usual custom, is liable if the 
 gig be stolen {Jones v. Tgler). 
 
 In Mackenzie v. Cox, three dogs ivcre taken care of hj the ostler of the 
 defendant, a stable-keeper, who was paid to buy them food, and keep 
 them in the defendant's stable with the plaintiff's horse. The plaintiff 
 asked if the dogs would be safe, and the defendant said he never lost 
 anything, and referred him to the ostler. The missing dog was locked 
 up, and stolen between twelve and one o'clock at night, the door having 
 been opened, as it was thought, by a false key. Infonnation of the loss 
 was given at once. The declaration stated that the defendant received 
 the dogs to be kept, fed, and taken care of for reward, which the second 
 plea traversed. Gurney B. put it to the jury, whether the defendant 
 received the dogs, and whether he had been negligent, both of which 
 points the defendant called witnesses to disprove ; and his lordship held 
 that even if a person does take goods into his possession for reward, he 
 is not answerable for their loss if he takes reasonable care of them ; and 
 that it was for the jury to say whether locking these dogs into a stable 
 was not taking reasonable care of them, and that if a dog-stealer came 
 in the night and stole the dog, the defendant was not answerable for the 
 loss. The verdict was for the defendant on both issues. 
 
 The keeping of swine so as to he a nuisance, is an offence within 
 11 & 12 Vict. c. 63, s. 59 (Dighy v. West Ham Board of Health). 
 Under a local act following closely the words of the Markets and Fairs 
 Clauses Act, 10 & 11 Vict. c. 14, s. 19, it is no offence to slaughter' cattle 
 elsewhere than in a public slaughter-house, unless there be an intention to 
 sell ths carcase as human food {Elias v. Nightingale). Llogd v. Walkey 
 was an action for negligence in tiot p-operly securing a cow of the defend- 
 ant's in a slaughter-house, and the declaration stated that by means 
 thereof the cow " ran at, butted at, gored, killed and destroyed a cow of 
 tlie plaintiff." Plea, a payment of 30s. into Court, and " that the 
 plaintiff had not sustained damages to a greater amount than the said 
 sum of 30s. in respect of the causes of action in the declaration mentioned.'' 
 Iteplication that he had. It was then proposed to give in evidence for
 
 cows POISONED IN PASTUPtE. 603 
 
 the defendant, that the plaintiff's cow was not killed by the defendant's 
 cow, but that after being so hurt it was killed by a butcher. Gok-ridtje J. 
 declined to receive such evidence as to the killing by the butcher, as the 
 contrary was admitted by the defendant's plea. Where the declaration 
 stated that the defendant struck the plaintiff's cow divers blows, by 
 reason whereof she died, and it appeared that the defendant having 
 beaten the plaintiff's cow unmercifully, the plaintiff mercifully put it to 
 death, it was objected for the defendant that this was a variance, as the 
 animal might not have died from the defendant's blows ; but the Court 
 considered that the objection was cured by the verdict, and refused a 
 rule to enter a nonsuit {Hancock v. Southall). 
 
 In the case of Golam v. Hall (6 L. R. Q. B. 206), the respondent was 
 huntsman of the Old Berkeley Hunt at Chorley Wood, and, on the 19th 
 ]\Iarch, 1870, a horse was sent there to be slaughtered for the hounds ; 
 the horse, however, was not immediately slaughtered, but was lent to 
 another person for the purpose of being worked, and was, in fact, put 
 to work. It was held that the respondent w^as guilty of an offence under 
 sect. 9 of the 12 & 13 Vict. c. 92, which imposes a penalty on any 
 person who, having the management of any place for the purpose of 
 slaughtering horses or other cattle not intended for butcher's meat, shall 
 use or permit to be used any horse or cattle brought to such place for 
 the purpose of being slaughtered. 
 
 The case of coivs leing j)oisoned m their pasture was the subject of 
 Lathhury v. Earle. The plaintiff was a large dairy farmer at Stratton, 
 and the defendant a railway contractor, who was engaged in making 
 a railway through the plaintiff's farm. The wood for the line was 
 pickled with creosote and oil of tar, and the defendant had a tank for 
 this purpose near the plaintiff's farm. When the pathway was laid 
 down, the stuff in the tank was pumped out into a culvert, which passed 
 under the canal and to a watercourse going through the plaintiff's field 
 where the cattle were watered. This was in the autumn of 1852, and 
 in April 1853, when the cattle were turned out, their mouths in five 
 days became burnt and black, and their hocks affected. On a request 
 being made, the defendant cleaned out the watercourse, the length of 
 the plaintiff's field, but not the culvert under the canal, and promised 
 compensation, and plaintiff put the cows into a field he had saved for 
 mowing. At the end of a raoTLth the cows were put back, but did not 
 recover till after calving, T: ey fell off so much in their milk that the 
 deficiency was calculated ?t 7000 quarts at Id. per gallon, for the first 
 three months, the loss being £182 odd, as they ought to have o-iven 
 during May, June, and July 16 quarts a-day, and for the next four 
 months £204, calculating the milk at 10 quarts a-day. Besides this.
 
 GO 4. POISONING CATTLE BY YEW CLIPPINGS. 
 
 his loss on the hay was £10, but £30 was deducted for cheese he had 
 made, and milk used on the premises. It was attempted to show that 
 liis cows were affected with the "mouth disease," but he denied that 
 they had the running and blisters in the mouth consequent upon it ; and 
 Professor Spooner stated that the effect of creosote was to suspend the 
 secretions of the body, especially the secretions of milk, and stated that 
 none of the symptons from which the cows were described to have 
 suffered were analogous to those of "mouth disease." It was attempted 
 to show for the defence that other cattle drank of the stream, and were 
 uninjured, but the plaintiff had a verdict for £266 8s. 
 
 In the case of Wilson v. Neivhury (7 L. R. Q. B. 31), the declaration 
 stated that the defendant was possessed of yew trees, the clippings of 
 which he knew to be poisonous, and that it was the duty of the defen- 
 dant to prevent the clippings from being placed on land not occupied 
 by him ; that the defendant took so little care of the clippings that 
 they were placed on land not occupied by him, whereby the horses of 
 the plaintiff were poisoned : held that the declaration disclosed no facts 
 from which a duty could be inferred in the defendant to take care of 
 the clippings. 
 
 Wliere the occupier of land acquiesces in the erection of works (here 
 copper smelting furnaces) of a nature to do injury, but which appear 
 not to be, in fact, injurious to the adjoining land, there is no implied 
 acquiescence in the natural extension of those works in the ordinary 
 course of operations ; and Sir J. RomilJy M;R., in BanMuirt v. Houf/hton, 
 would not restrain the party agrieved from proceeding at law to obtain 
 compensation by damages for the injury sustained ; and semble that this 
 Court would not in such case interfere by iu junction to restrain the 
 continuance of the works, but would leave the parties to their remedy 
 at law. 
 
 Uougldon v. BanMiart, on a motion for injunction, was under the 
 following circumstances : In the year 1853 the plaintiff became tenant 
 of certain farm lands in Glamorganshire, near which there were some 
 copper mines, known as the "Eed Jacket Mines," and opened for 
 working in 1849. Shortly after the plaintiff obtained possession of his 
 farms the projnietors of the Red Jacket Mines considerably increased their 
 furnaces, and in the course of time the plaintiff's horses, sheep, cows, &c., 
 began, as he alleged, to grow ill and die, so much so that in 1854 
 the plaintiff lost no less than between 200 and 300 sheep alone. In 
 1856 tlie plaintiff, having previously suspected that the copper fumes 
 from the furnaces poisoned his cattle, submitted one of his dead horses 
 to Mr. Herapath for examination, when that gentleman at once pro- 
 nounced the boast to have died from aborbing copper fumes. Plain-
 
 EFFECT OF SULPHATE OF LEAD ON CATTLE. 605 
 
 tiflf, upon this, and upon the smoke from the new and large furnaces 
 not being discontinued, commenced an action against the proprietors 
 of the mines, and obtained £450 damages against them. The pro- 
 prietors moved the Rolls Court, in December, 1858, for an injunction 
 to restrain the plaintiflF proceeding on this verdict, on the ground that 
 he had permitted the nuisftnce he complained of ; and the Court, in 
 January, 1859, dismissed such motion with costs. While the latter 
 part of these proceedings were going on, the defendants to the present 
 suit began to erect certain new copper works, called the " Briton-ferry 
 Works" in the vicinity of the " Red Jacket" works and the plaintiff's 
 farm ; so that, what with the copper fumes and smoke of both these 
 mines working together, the plaintiff alleged his condition to be all but 
 intolerable. His Honour, after hearing tlie evidence on both sides, 
 granted an injunction to restrain the proprietors of the Briton-ferry 
 Mines from permitting smoke to issue from their works so as to produce 
 any damage to the land and property of the plaintiff, and directed an 
 issue at law to try the fact whether the smoke from the defendants' 
 furnaces did injuriously affect the plaintiff's farm or not. 
 
 Stevens v. BosweU was a similar case to Lathhury v. Earle. The 
 plaintiff had a dairy farm, on which he Jcejit thirty or forty cows near 
 certain lead ivories, which had a blastiny and three calciiiiny furnaces, 
 and in 1851-53 four cows, forty-eight lambs, and six colts died, poisoned 
 with sulphate of lead, which was found in their insides, as well as in 
 the hay, the hedges, and the weeds on the farm. It was also detected 
 in the milk after it had passed through the cow ; though it did not 
 affect vegetation, but only animal life. On examination, the carcases 
 had oxide of lead in the mucous membrane, as well as in the lungs and 
 liver in great black patches. There was also a black streak round the 
 gums ; and one pig's kidneys were bare of fat. It was urged by the 
 counsel for the defence that the land on the farm was of a poisonous 
 nature, and had been for centuries, and that the smelting works had 
 nothing to do with it. A juror was withdrawn, and the jilaintiff 
 was to receive £500 damages, and the defendants to purchase the farm 
 at full value. The nearest point of the farm which was thus injured 
 by the lead fumes was half a mile from the works, and the most distant 
 a mile ; and the white smoke from the blast furnace gave a small pro- 
 portion of oxide of lead, and the remainder of carbonate and sulphate 
 of lead. 
 
 Professor Herapath described the effect as " a stunted growth, and 
 leanness, shortness of breathing, paralysis of the extremities (particu- 
 larly the hinder ones), the flexor muscles of the forelegs affected so that 
 the beasts stand on their toes, swelling of the knees, but no constipa-
 
 G06 SYMPTOMS OF POISONING BY SULPHATE OF LEAD. 
 
 tion or colic, as in the human race. lu a few days death followed. If 
 the injured beasts were removed to another farm they never throve. 
 In the young the symptoms were more conspicuous and the mortality 
 greater. Lambs were yeaned paralytic ; when three weeks old they 
 could not stand, although they had made great efforts to do so : in 
 attempts to feed out of a bottle they were nearly suffocated from 
 paralysis of the glottis, and twenty-one died early out of twenty-three. 
 Colts also died ; and those that lived could not be trotted 150 yards 
 without distressed breathing. Pigs confined to the stye were not 
 injured ; but if allowed to roam were soon affected. The milk of cows 
 and sheep was reduced in quality and quantity ; and cheese made from 
 the former had less fat in it. I find in the milk of both minute traces 
 of lead. It will be observed that of the symptoms, those of emaciation, 
 paralysis, and the blue line in the gum of the lower jaw, are similar to 
 those of the human subject, that constipation and colic are absent, and 
 that we get two new ones — shortness of breath, and swelled knees."
 
 INDEX. 
 
 ABANDONMENT, 
 
 not presumed fi'om mere fact of nou user, 86 
 
 stopping up Vfindows prima facie, 77 
 
 parol agreement for substitution of new way, no evidence of, 87 
 
 permanent obstruction, evidence of, 87 
 
 ACCEPTANCE, 
 
 meaning of, 586 
 
 what constitutes, 579 
 
 after delivery, 584 
 
 to satisfy statute, 586 
 
 verbal promise does not constitute, 583 
 
 by vendee dealing with goods purchased, 498 
 
 by vendee selecting and marking a particular article, 500 
 
 vendee may after acceptance dispute quality of goods, 502 
 
 of turnip seed, 503 
 
 what sufficient to satisfy 17 th section of statute, 503 
 
 actual, and receipt of goods, 501 
 
 where goods lost in transit a, 503 
 
 and delivery of timber, 130 
 
 ACCIDENT, 
 
 to horse through bad fence, 138 
 
 by fall of haystack, lb, 
 to cattle straying on railway, 148 
 to pony through neglect to fasten gates, 152 
 to sheep through defective railway fence, 153 
 
 ACCOUNT STATED, 
 
 what sufficient evidence to sustain verdict upon, 63 
 
 ACKNOWLEDGMENT, 
 
 of title, 422 
 
 what takes debt out of statute, 504 
 
 ADDITIONAL RENT, 
 
 for ploughing up pasture, 312 
 for underletting, 314 
 
 ADULTERATION ACT, 
 conviction under, 531 
 selling adulterated sainfoin seed, 530
 
 608 INDEX. 
 
 AGENT, 
 
 right of, to sue for remimeration when authority rescinded, 475 
 
 auctioneer agent for both buyer and seller, 477 
 
 authority to execute lease, 419 
 
 notice to quit by, 420 
 
 letting by, without authority, 421 
 
 power to let on unusual terms, 467 
 
 act ratified by employer, ib. 
 
 representation that he had authority to act, ib. 
 
 guarantee of solvency by, 468 
 
 authority of, to bind principal, 546 
 
 receipt of douceur by, 547 
 
 warranty by veterinary sm-geon as agent, 557 
 
 AGISTMENT, 
 
 agreement to agist cattle, 60 
 general liability of agister, 587 
 compensation for, 588 
 contract for, not an interest in land, ib. 
 does not create a lien, 589 
 
 AGREEMENT, 
 
 for sale of growing crops, 50 
 
 growing timber, 55 
 
 growing underwood, 56 
 
 growing grass, 58 
 
 crops and tillage, 60 
 with landlord to accept new tenant, 61 
 to occupy lodgings at yearly rent, 64 
 by parol to deliver up possession, 65 
 by landlord to supply complete furniture, 66 
 by outgoing tenant to leave fixtures, ib. 
 parol, for lease, 311 
 when operates as lease, 410 
 to let, agreement to give possession, 411 
 contract for sale of, 411 
 agreement not under seal, 413 
 instrument void as lease, good as, 413 
 parol, for lease. 415 
 
 not giving possession under a new one, for lease, 416 
 stamp on, 416 
 
 subject matter of, within stamp act, 417 
 
 terms of, reduced to writing, coupled with promise of party to sign, bind party 
 so promising, 421 
 
 AGRICULTURAL HOLDINGS ACT, 43-49 
 
 AGRICULTURAL PURPOSES, 
 right of way for, 91 
 
 ALLUVION, 
 
 lands formed by, on seashore, 168
 
 INDEX. 609 
 
 ANCIENT LIGHTS, 
 
 obstraction of, 77 
 
 may be altered, not enlarged, 97 
 
 new lights not corresponding with, 97 
 
 ANCIENT MEADOW, 
 
 ploughing up, for building purposes, 308 
 conversion of, into arable land, 310 
 
 APPLE FARM LEASE, 
 
 apple-trees not excepted in, 121 
 
 APPLE-TREES, 
 
 not within the exception " other trees " in cider county, 121 
 
 APPRAISEMENT, 
 
 necessary before indebitatus assumj}sit will lie by landlord for moiety of crops 
 
 in lieu of rent, 57 
 goods sold without, 294 
 stamp when sufficient without award stamp, 332 
 
 APPRAISERS, 
 
 sworn appraisers in stat. 2 Will. & Mary, Sess. 1, c. 5, need not be professional, 332 
 
 APPREHENSION, 
 
 of trespassers, when justifiable, 3G4 
 
 ARBITRATORS, 
 
 hearing one party in absence of the other without notice, 419 
 may employ attorney to draw award, 419 
 
 ASSIGNMENT, 
 
 by tenant of lease, 61 
 
 when agreement to underlet amounts to an, 289 
 
 demise by yearly tenant for a term of years not an, 290 
 
 of tenant right by tenant to landlord, 323 
 
 of agreement for a lease, 415 
 
 by bill of sale to attorney not void on ground of champerty, 538 
 
 ASSIGNEE, 
 
 when entitled to away-going crop, 322 
 
 electing not to take to lease, what effect on covenants by lessee to leave hay 
 
 straw, &c., 322 
 bound by covenant to repair, 427 
 of reversion, rights of, 425 
 
 AUCTION, 
 
 purchaser of largest value entitled to deeds, 478 
 
 printed particulars of, cannot be altered by parol evidence of Verbal statement 
 
 of auctioneer, 479 
 bidding by '• puffers " at, 550 
 bidder at, may retract bidding, 550 
 conditions of sale sufficient notice to bidders, 550 
 
 li R
 
 610 INDEX. 
 
 AUCTIONEER. 
 
 agent for buyer and seller, 477 
 
 right of, to commission, 478 
 
 description in catalogue, 549 
 
 auctioneer's lien, 591 
 
 not agent for bidder till bidding accepted, 501 
 
 liability of, 592 
 
 AVERAGE 
 
 price of corn of seven years, 453 
 
 AWARD 
 
 admissible in evidence on part of landlord, 322 
 
 stamp when not necessary, 332 
 
 when unratified, trover ■will not lie, 512 
 
 AWAY-GOING CROP, 
 
 award admissible in evidence on part of landlord on issue between him and 
 
 execution creditor of tenant, 322 
 right of tenant to, 320 
 custom of country as to, 321 
 
 BAILEE, 
 
 action by gratuitous bailee for horse killed through defective fences, 138 
 negligence of, under different bailments, 232 — 260 
 
 BAILIFF, 
 
 has authority to receive tender, 271 
 
 authority to distrain equivalent to authority to receive rent, 278 
 
 distrain of wrong sheep by, 278 
 
 ratification of acts of, by landlord, 278 
 
 BAILIFF (FARM), 
 
 jurisdiction of justices as to, 205 
 
 entitled to notice to quit, 208 
 
 not a partner, 209 
 
 not authorised to draw bills or pledge credit of master, 209 
 
 authority to bind master by contracts, 210 
 
 BANKRUPTCY LAWS, 
 
 farmer ordinarily not within them as a trader, 523 
 
 when farmer within them as a trader, 524 
 
 fanner keeping dairy cows not within them, 524 
 
 non-liability of bankrupt for rent accruing after filing of petition, 525 
 
 BARGAINED AND SOLD (GOODS), 
 
 where growing crops are sold distinct from the land, GO 
 for value of fixtures left by agreement for landlord, 67 
 
 BARK, 
 
 lessor may bring trover for bark of trees cut during lease, 1 1 5 
 tenant not liable for cattle barking trees, 128 
 what constitutes delivery of, 494
 
 INDEX. 6 1 1 
 
 BARK — con (inucd. 
 
 drying bark distinct trade from drying corn, 517 
 
 Fire Insurance Company not liable for fire resulting from drying bark, 517 
 
 BARLEY, 
 
 warranty of seed, 514 
 sale of, to bankrupt, 520 
 meaning of seed barley, 528 
 
 BEAR, 
 
 tied up by too long chain, IGi 
 
 BEASTS OF PLOUGH, 
 distrain of, 286 
 
 BEES, 
 
 subject of larceny, 344 
 
 BEQUEST, 
 
 of money for liberation of poachers, invalid, 389 
 
 BILL OF SALE. {See Sale.) 
 
 BILLS OF EXCHANGE, 
 
 given by tenant to agent and dishonoured, 277 
 
 joint occupants of farm cannot bind each other by them, 515 
 
 BONES, 
 
 uncrushed, exempt from toll, 340 
 
 BOUNDARIES, 
 
 liability of land to be rated virhere boundaries cannot be ascertained, 441 
 BULK, 
 
 refusal of seller to show, 482 
 
 not equal to sample, 484 
 
 right of purchaser to inspect, 486 
 
 drawing samples fi-om, after purchase, 500 
 BULL 
 
 running at " red," 160 
 
 keeping ferocious, 162 
 
 BULLOCK; 
 
 warranty of soundness of, 564 
 
 BUSHES, 
 
 general property in, 109 
 
 exception of. for repair of fences, 116 
 
 CARRIERS, 
 
 liability of railway, at Common Law, 232 
 restriction of liability by booking ticket, 233 
 construction of conditions on ticket, 241 
 Railway and Canal Traffic Act, 242 
 just and reasonable contract by, 242 
 
 II R 2
 
 613 INDEX. 
 
 CARRIERS — continued. 
 
 dogs within Traffic Act, 247 
 
 conditions by railways must be reasonable, 252 
 
 responsible for delay, 255 
 
 delivery of goods by, within reasonable time, 2Gi 
 
 CARTS, 
 
 claim of way for carts and cattle, 1)3 
 
 CATARACT, 
 
 unsoundness in horse, 570 
 
 CATTLE, 
 
 claim of way for cattle and carls, 93 
 injury to cattle on railway, 235 
 suffocated in railway van, 246 
 crowding cattle in truck, 261 
 cattle dealers travel at own risk, 253 
 injured by working of mines, 604 
 by lead works, 606 
 
 CAVEAT EMPTOR, 
 
 rule of, 542 
 
 CHAMPERTY, 
 
 assignment by client to attorney not void on ground of, 538 
 
 CHEST-FOUNDERED 
 horse unsound, 570 
 
 CIDER, 
 
 trade meaning of, 481 
 selling bad, 529 
 
 CLOSE, 
 
 definition of, 347 
 
 hirer of grass in close has right of action against one who breaks the soil, 347 
 
 CLOVER, 
 
 Bown does not constitute permanent pasture, 308 
 compensation for sowing, 324 
 
 COAL, 
 
 grant to pass under fore-shore, 169 
 
 OOLLISTON, 
 
 injm-y to cattle tlu'ough, 240 
 
 COMMON, 
 
 proof of user of right of common, 84 
 right of common of pasture for pigs, 85 
 forcible entry on common of pasture, 358 
 lord of manor not entitled to shoot on, 383 
 
 CONSIGNEE, 
 
 notice of refusal by consignee to receive goods need not be sent by carrier to 
 consignor, 263
 
 INDEX. 613 
 
 CONSIGNOR, 
 
 cannot require notice from cnrricr of consignee's refusal to receive goods, 203 
 
 CONSUMING PRICE, 
 definition of, 334 
 relative value of, 335 
 
 CONTRACT, 
 
 for purchase of growini,^ timber, o.j 
 indivisible contract for interest in land, 67 
 by parol to live at boarding house, 08 
 entire timber contract, 129 
 
 of hiring, may be qualitied by proof of customary holidays, 199 
 for service for more than one year, 203 
 of service not necessarily for specific time, 206 
 . under Railway and Canal TrafEc Act, 242 
 just and reasonable, 242 
 
 with first railway does not make second railway liable, 2ol 
 conditions on railway tickets must be reasonable, 252 
 unreasonable conditions, 254 
 with sack contractors, 200 
 
 for sale of agreement for lease does not imply lessor's power to lease, 411 
 for quiet enjoyment, 403 
 for purchase of land when complete, 476 
 as to coal mines worked out, 476 
 discharge of surety by variation in contract, 483 
 articles sold by contract must reasonably answer description, 485 
 alternative contract must be stated, 490 
 seller cannot recover price of part of contract, 491 
 meaning of " directly " in contract of delivery, 493 
 to furnish turnip seed, 507 
 for sale of growing turnip seed, 530 
 complete contract of purchase of horse from letters, 580 
 giving halfpenny to bind contract, 581 
 
 CONVICTION, 
 
 of poaching under 9 Geo. IV. c. 09, 309 
 for using trap for game, 375 
 for trespass, 375 
 
 COPROLITES, 
 
 proper mode of rating, 120 
 
 COPYHOLDER, 
 
 liable in trover for removing timber, 110 
 may cut trees for repairs, 110 
 
 CORN RENT, 
 
 reservation of, 452 
 how estimated, 453 
 
 CORNEA, 
 
 unusual convexity in, unsoundness. 566
 
 6U INDEX. 
 
 COKX MEASURES, 
 
 in different markets, 521 
 
 COEN SALES, 
 returns of, 520 
 
 COVENANT, 
 
 not to lop or top trees, 109 
 
 not to grub up trees, 125 
 
 breach of, not to underlet, 288 
 
 to farm in a husbandlike-manner, 306 
 
 to manage pasture, 308 
 
 to repair hedges, 310 
 
 to fallow a certain quantity, 815 
 
 to keep buildings in repair, 315 
 
 to spend money in manure, 315 
 
 to consume hay and sti^aw, 326 
 
 not to sell hay, 327 
 
 to bring manure for hay sold, 339 
 
 as to rotation of crops, 415 
 
 to repair, 426 
 
 to yield up in good repair, 427 
 
 not to assign or under-let, 453 
 
 to repair, 454 
 
 to leave land stocked with game, 454 
 
 COWS, 
 
 poisoned in pasture. 603 
 poisoned by yew clippings, 604 
 
 CURBY HOCKS, 
 in horse, 570 
 
 CUSTODIA LEGIS, 
 goods in, 294 
 
 CUSTOMS (AGRICULTURAL), 
 Bedfordshire, 2 
 Berkshire, 3 
 Buckinghamshire, 3 
 Cambridgeshire, 3 
 Cheshire, 16 
 Cornwall, 4 
 Cumberland, 5 
 Derbyshire, 6 
 North, 7 
 Devonshire, 8 
 Dorsetshire, 8 
 Durham, 9 
 Essex, 10 
 Gloucestershire, 10
 
 INDEX. 615 
 
 CUSTOMS— co7iti7iued. 
 Hampshire, 11 
 Hereford, 12 
 Hertfordshire, 11 
 Kent, U 
 Lancashire, 16 
 Leicestershire, 17 
 Lincolnshire, North, 18 
 
 South, IS 
 Middlesex, 20 . 
 Monmouth, 12 
 Norfolk, 21 
 Northamptonshire, 22 
 Northumberland, 9 
 Nottinghamshire, 23 
 
 South, 24 
 Oxfordshire, 25 
 Eutland, 26 
 Shropshire, 26 
 Somersetshire, 27 
 Stafifordshire, 28 
 SufEolk, 28 
 Surrey, 29 
 Sussex, 31 
 Wales, North, 38 
 
 South, 39-43 
 Warwickshire, 32 
 Westmoreland, 5 
 Wight, Isle of, 33 
 Wiltshire, 33 
 Worcestershire, 34 
 Yorkshire, East Riding, 35 
 
 North Riding, 36 
 
 West Riding, 37 
 
 CUSTOM, 
 
 to take profit in alieno solo, 78 
 
 to dig clay in copyhold, 98 
 
 of copyholders to fell timber, 114 
 
 of country as to consumption of hay and straw, 299 
 
 of the country generally, 315 
 
 as to paying for tillages, 317 
 
 of country excluded by lease, 323 
 
 let in by omission in lease, 823 
 
 to leave manure, 324 
 
 DAIRY, 
 
 demise of, 267 
 
 DAMAGE, 
 
 by game to crops, 391 
 compensation for, 389
 
 016 i:ndex. 
 
 DAMAGE — coniimicd. 
 
 to surface of land, 100 
 to horse through bad fence, 138 
 to horses by fall of haystack, 139 
 to cattle by pollution of stream, 181 
 
 DAMAGE FEASANT, 
 dog taken, 3G8 
 
 DAMAGES, MEASUKE OF. 
 for aggravated trespass. 127 
 nominal where crops solel for fnll value, 294 
 for removing soil, 356 
 for trespass, 359 
 
 for not keeping buildings in repair, 429 
 for non-delivery of goo<ls, 492 
 for breach of contract, 509 
 in trover, 518 
 for non-delivery, 533 
 in trover for a horse, 560 
 question of damages on returning horse, 594 
 how estimated for iiTCgular distress, 273 
 for detaining cattle after tender, 274 
 for distraining cattle of stranger, 275 
 fo-r distraining wrong sheep, 278 
 
 DANGEROUS ANIMALS, 
 scie7iter, 155 
 savage boar, 1 55 
 savage dog, 156 
 ferocious bull, 162 
 bear tied up by too long chain, 1G4 
 depasturing vicious horse, 167 
 
 DECOY, 
 
 penalty for shooting near, 385 
 
 DEDICATION, 
 
 of way to pnblic, 91 
 valid dedication of, how made, 91 
 evidence of user and dedication, 101 
 of private road to the public, 106 
 
 DEED, 
 
 words of description in deed may be contradicted by parol evidence, 482 
 takes effect from the delivery and not the date, 482 
 
 DEER, 
 
 in park personal property, 382 
 
 DELAY, 
 
 by railway in forwarding pigs, 255 
 
 forwarding cheeses, 257 
 by fall of snow, 259
 
 INDEX. Gi7 
 
 DELIVERY, 
 
 and acceptance of timber within Statute of Frauds, 130 
 
 non-delivery of goods sold by sheriff, 302 
 
 of instrument as an escrow, 448 
 
 what constitutes, 494 
 
 sufficient to satisfy statute, 496 
 
 actual, not necessary in the case of ponderous goods, 497 
 
 leading case on, 496 
 
 non-delivery of thrashing machine within certain time, 510 
 
 of goods of inferior quality, 511 
 
 order for delivery on third person, 513 
 
 delay of delivery cannot be set up in reduction of damages in breach of 
 
 warranty, 536 
 what sufficient to pass property, 536 
 
 DEMISE, 
 
 general demise of land with timber trees, 109 
 
 at yearly rent, 412 
 
 meaning of, 424 
 
 of land with power to make bricks, 439 
 
 for three years certain, 463 
 
 DILAPIDATIONS, 
 
 when action maintainable for by incumbent, 310 
 
 what knowledge necessary in valuer of ecclesiastical dilapidations, 333 
 
 action for dilapidations subject of compulsory reference, 431 
 
 of buildings built partly on waste, 431 
 
 DISTRESS, 
 
 general principles of, 265 
 
 of sheep in highway, 266 
 
 of things in manual use illegal, 266 
 
 of cattle not in locus in quo, 266 
 
 escape of, 267 
 
 duties of pound-keeper, 268 
 
 duties of hayward, 269 
 
 tender of amends when not too late, 270 
 
 tender of rent, proper persons to receive, 271 
 
 tender of rent sufficient amends, 272 
 
 detaining cattle after tender of rent, 274 
 
 detaining goods, 274 
 
 of -cattle of stranger for rent-charge, 275 
 
 of cattle, assisting, 275 
 
 authority by landlord to distrain, 278 
 
 of wrong sheep by baiUff, 278 
 
 payment of rent under distress no admission of title, 278 
 
 trespass maintainable after tender, 279 
 
 for recovery uf rent-charge, 280 
 
 Statute of Uses, 280 
 
 not an inseparable incident to rent-service, 281 
 
 by law, 281
 
 618 INDEX. 
 
 BISTUESS—contimml. 
 
 illegal at improper time, 281 
 
 improper working of, 282 
 
 after death of tenant, 282 
 
 open field sufficient pound for, 283 
 
 fact of inventory being taken an impounding, 283 
 
 time for making, 28-1 
 
 fraudulent removal of goods by tenant, 284 
 
 duty of distrainor as to goods unsold, 285 
 
 what goods may be distrained, 285 
 
 of implements of husbandry, 286 
 
 of beasts of plough, 286 
 
 of sheep of third person. 287 
 
 illegal after determination of tenancy, 288 
 
 by joint-tenant of reversion, 289 
 
 by under-lessee, 289 
 
 on away-going crop, 290 
 
 Statute 8 Anne, 290 
 
 of growing crops, 291 
 
 of hay and corn in stacks, 291 
 
 by grantee of rent-charge, 292 
 
 of crops under aji.fa., 292 
 
 of growing crops, law as to, 293 
 
 irregular, 296 
 
 of privileged goods, 297 
 
 excessive, remedy for, 297 
 
 and sale of farming stock, 298 
 
 of hay and straw to be consumed on the premises, 298 
 
 unreasonable, 300 
 
 excessive, 301 
 
 second distress when unlawful, 302 
 
 affirmation of tenancy, 303 
 
 right of sheriff to poundage, 304 
 
 no waiver of breaches of covenant, 305 
 
 DITCH, 
 
 property in, 131 
 
 presumption of ownership in, 131 
 considered a fence under Enclosure Act, 132 
 law as to ditches, 132 
 
 DOG, 
 
 scienter as to ferocity, 155 
 
 keeping savage dog, 156 
 
 railway company not liable for acts of stray dog on their premises, 156 
 
 dog dangerous to owner's knowledge, 156 
 
 evi°dence of dogs being wont to attack men not sufficient to support scienter as 
 
 to sheep, 157 
 sheep, worrying, 158 
 what is evidence of scienter for jury, 159
 
 INDEX. G19 
 
 DOG — continued. 
 
 caution from owner of dog, 160 
 
 evidence of dog having been bitten by mad dog, 160 
 
 shooting dog when justifiable, 161 
 
 right to keep dogs loose for protection of property, 161 
 
 injury by dog chained up to person legally on premises, 133 
 
 keeping watch-dog in walled garden, 164 
 
 dogs frightening horses, 165 
 
 dogs within Traffic Act, 249 
 
 injury to valuable greyhound on railway, 254 
 
 inproperly securing dog on railway. 264 
 
 trespass by dog against master's will, 367 
 
 shooting dog chasing deer, 368 
 
 taking dog damage feasant, 368 
 
 deputation by Stat. 1 & 2 Will. IV. to seize dogs, 368 
 
 sending dog on land an entering, 369 
 
 laying traps for dogs, 389 
 
 DOG SPEARS, 
 
 injury to dog from, 390 
 
 DOTARD, 
 
 lessee may claim if thrown down by tempest, 116 
 tenant's rights to, 124 
 
 DOUBLE VALUE, 
 
 action for, under Statute, 449 
 
 DRAIN, 
 
 claim of right to make drain over another's land, 70 
 
 verbal licence not sufficient to convey easement of drain over land of another, 74 
 difference between drain and watercourse, 182 
 flow of water from drain for agricultural improvements, 183 
 right to artificial watercourse, 184 
 nnqualified right of owner to drain, 184 
 rights as to rain water, 185 
 rights as to surface water, 186 
 
 action will not lie against surveyor of highway for cutting tlrains under power 
 of Highway Act, 351 
 
 DRAINAGE, 
 
 compensation to out-going tenant for, 329 
 
 DRAINING, 
 
 construction of draining covenant, 328 
 
 DRIVING, 
 
 liability of master where servant drives his own horse in master's service 214 
 
 two carts, 214 
 
 servant killed by negligent driving, 214 
 
 servant going indirect road, 219 
 
 servant driving master's cart without leave, 219
 
 620 INDEX. 
 
 DRIVING— continued. 
 
 liability of master defined, 220 
 
 general rule as to negligence, 221 
 
 what is negligence in driving, 220 
 
 running over ass tethered in highway, 221 
 
 person driving not bound to keep on right side of road, 220 
 
 DROVERS, 
 
 larceny of sheep by drover, 224 
 fraudulent drovers, 225 
 not general servants, 225 
 may be found guilty of embezzlement, 225 
 
 general drover not a servant so as to make owner of cattle liable for his negli- 
 gence, 228 
 drover has no implied authority to sell, 229 
 reasonable presumption that drover has authority to sell, 229 
 drover's cattle agisting for one night not liable to be distrained, 276 
 
 EASEMENT, 
 
 of grass for a cow creates no interest in land, 67 
 
 definition of, 70 
 
 presumption of grant of, how established, 70 
 
 to stack hay, 71 
 
 to stack coals, 71 
 
 easement of drain over land of another cannot be conveyed by verbal licence, 74 
 
 unity of ownership destroys prescriptive rights, 76 
 
 may be claimed by custom, 78 
 
 right of owner to support of underground strata not an easement, 80 
 
 light to take pot water, 78 
 
 to water cattle, 78 
 
 distinction between profit a prendre and a mere easement, 79 
 
 claim of pi-escription under Stat. 2 & 3 Will. IV., c. 71, 81 
 
 claim of right to easements, 82 
 
 plea of forty years' user, 82 
 
 continuous enjoyment of easement, 83 
 
 enjoyment as of right, 83 
 
 easement of common of pasture, 84 
 
 i-ights of way, 86 
 
 EJECTMENT, 
 
 may be brought by lessee of 2'>''"i^ vesturw for injuries to his possessory 
 
 right, 53 
 action of, against lessee for breaches of covenant, 311 
 evidence of cross-cropping, when inadmissible in action of ejectment, 315 
 too late after twenty years' adverse possession, 345 
 
 tenant estopped from denying title of landlord wh"b let him into possession, 357 
 incumbent may sustain ejectment against tenant during current year, 435 
 ejectment from part of premises, 437 
 eviction of tenant, when operating as suspension of rent, 437 
 
 ELM 
 
 is timber when twenty years old, 118
 
 INDEX. 621 
 
 EMBEZZLEMENT, 
 by servant, 222 
 by drover of cattle, 225 
 
 EMBLEMENTS, 
 
 growing potatoes come within description of, 51 
 
 value of, may be recovered on account of crops bargained and sold, 67 
 
 definition of, 442 
 
 executor's right to, 442 
 
 devisee's right to, 442 
 
 part of stock of farm, 443 
 
 ENCROACHMENTS, 
 by the sea, 168 
 
 made by tenant are for benefit of landlord, 1 69 
 from non-navigable river, 169 
 
 ENTRY, 
 
 by person who has legal title to the land, 345 
 
 by lord of manor when not enough to bar tenant's right, 345 
 
 under 3 & 4 Will. IV. c. 27, 346 
 
 to retake goods wrongfully taken, 347 
 
 on termination of lease, landlord cannot maintain trespass before entry, 367 
 
 permissive tenant cannot sue claimant under owner for forcible entry, 357 
 
 forcible entry in exercise of right of common of pnsture, 358 
 
 unlawful on day when plaintiff has whole of day to remove crops, 359 
 
 customary heir of coi:)yhold tenement cannot maintain trespass without entry, 
 
 but after entry may maintain action for trespasses committed prior to his 
 
 entry, 357 
 times of entry on farms, 433 
 
 ESCHEAT, 
 
 right of way of necessity cannot exist where title is by escheat, 90 
 when escheat equal to grant, 90 
 
 ESCROW, 
 
 execution of an instrument may amount to an escrow without express words 
 of delivery, 448 
 
 ESTOPPEL, 
 
 tenancy created by estoppel between tenant and receiver appointed by 
 
 Chancery, 411 
 doctrine of estoppel between landlord and tenant, 418 
 no estoppel between assignee and termor who grants lease exceeding his own 
 
 term, 418 
 constructive eviction so as to affect estoppel, 437 
 mere words of description in a deed of conveyance not operating by way of 
 
 estoppel maybe contradicted by parol, 482 
 
 EST RAY, 
 
 trespass lies for working estray, 344 
 swan is an estray, 345
 
 622 INDEX. 
 
 EVICTION, 
 
 action for in Coimty Court, 437 
 
 of tenant, when operating as suspension of rent, 437 
 
 of tenant from parcel of demised premises no answer to action for breach of 
 
 covenant, 437 
 constructive so as to aflPect estoppel, 437 
 
 EXCHANGE (BILL OF) 
 
 given by tenant to agent, 277 
 
 joint tenants of farm cannot bind each other by bills of exchange, 515 
 
 EXPEDITION, 
 
 railway companies must convey with reasonable expedition, 259 
 
 FALSE PRETENCES, 
 
 obtaining money by, for cutting chaff, 224 
 
 FARM, 
 
 contract to farm in a husbandlike-manner, 306 
 
 mere relation of landlord and tenant, sufficient consideration to farm in a 
 
 husbandlike-manner, 306 
 removing hay from, 316 
 manure made on, definition of, 339 
 refusal of entrance by lessor to new tenant, 423 
 refusal of tenant to show farm, 423 
 landlord not compelled to rebuild farm buildings, 429 
 different times of quitting farms, 433 
 farm fixtures, 454 
 
 FARMER 
 
 not within Sunday Trading Act, 563 
 
 FENCES 
 
 in churchyard, whose duty to repair, 113 
 
 tenant's right to bushes and thorns for repair of fences, 116 
 
 ditch considered a fence under General Enclosure Act, 132 
 
 duty of occupier to repair fences, 132 
 
 when no obligation to fence, 133 
 
 when obligation to fence, 134 
 
 escape of cattle for want of fences, 135 
 
 obligation on occupier to fence dangerous places, 1 37 
 
 liability of canal company to fence, 138 
 
 injury to horse through bad fence, 138 
 
 general liability to maintain fences, 139 
 
 liability of railway companies to fence, 143 
 
 power of surveyor to take down fence, 142 
 
 railway fences, 144 
 
 obligation of company to fence, 146 
 
 liability to maintain fence between railway and highway, 140 
 
 railway companies not bound to fence one part of premises from another, 152 
 
 damage to fence by poacher not malicious injury, 372
 
 INDEX. 6^3 
 
 FERRY, 
 
 negligence of owners of, 232 
 
 FIERI FACIAS, 
 
 growing potatoes may be seized under, 51 
 
 growing fruit cannot be seized under, 54 
 
 com and other industrial crops may be seized under, 56 
 
 growing grass cannot be seized under. 57 
 
 what may be seized under, 59 
 
 outer-door of out-house may be broken under, 285 
 
 seizure of crops under, 292 
 
 landlord's claim for rent under, 4G9 
 
 FIRE, 
 
 injury to horses through axle of caniage taking fire, 287 
 
 herbage set on fire by sparks from engine, 359 
 
 caused by sparks from railway engine, 360 
 
 by spontaneous ignition of hayrick, 360 
 
 by careless burning of weeds, 360 
 
 destruction of farm premises by, 429 
 
 liability to pay rent for premises burnt down, 429 
 
 landlord not compelled to spend insurance money, 429 
 
 farm-house destroyed by fire, 430 
 
 FISH, 
 
 right of fishing passes by grant of water, 1 70 
 trespass for entering fishery, 370 
 definition of mesh in Salmon Act, 364 
 
 FIXTURES, 
 
 agreement by outgoing tenant to leave fixtures not an interest in land, 67 
 mortgagee of tenants' fixtures has no interest in land, 68 
 farm fixtures, 454 
 leading case on, 454 
 right to remove barn, 455 
 
 stavel barn, 455 
 
 water-fender, 456 
 
 staddles, thrashing machine and granary, 457 
 
 barn on blocks, 458 
 
 building where landlord finds part of timber, 459 
 
 tenants' fixtures after determination of tenancy, 460 
 
 brick pillars, 460 
 trover by tenant for, 461 
 
 removal of, by tenant after ejectment brought, 461 
 leaving fixtures in same condition, 462 
 law of fixtm-es under 14 cfc 15 Vict. c. 25, 462 
 steam-engine and grindstones fixtures, 469 
 
 FLAX, 
 
 injunction to prevent the sowing of, 309 
 penalty for sowing, 313 
 
 FODDER, 
 
 price or consuming price. 335
 
 624 ' INDEX. 
 
 FOLDAGE, 
 
 claim for, by outgoing tenant, 323 
 
 FOOTPATH, 
 
 obstruction of, 9-i 
 
 penalty for ploughing up, 94 
 
 erecting gate across, 9-1 
 
 FORCIBLE 
 
 entiy in common of pasture, 358 
 
 FORFEITURE, 
 
 cutting do-svn trees to work quarries docs not work forfeiture, 115 
 
 waiver of, by receipt of rent, 288 
 
 re-entry by lessor, as for a forfeiture, on finding premises out of repair, 428 
 
 FOX, 
 
 trespass lies for hunting over another's land, 364 
 
 FRAUD, 
 
 use and occupation will not lie where agreement void by reason of, 448 
 
 contract void through, 476 
 
 on lessee of market, 519 
 
 by misrepresentation in warranty of horse, 553 
 
 principal liable for agent's, 556 
 
 eflEect of, on contract, 557 
 
 FRAUDS (STATUTE OF), 
 
 fact of auctioneer signing purchaser's name is not a memorandum to satisfy 
 . 17th section, 477 
 
 entry by auctioneer's clerk not sufficient to. satisfy 19th section, 477 
 written proposal signed by one party, and orally agreed to by the other, 
 
 sufficient, 495 
 what is part acceptance to satisfy 4th section, 496 
 delivery to satisfy 17th section, 496 
 acceptance by carrier not sufficient, 496 
 actual delivery, when not necessary, 497 
 actual acceptance, under, 498 
 
 delivery and acceptance of samples so as to satisfy 17th section, 500 
 acceptance and actual receipt, 501 
 no acceptance and actual receipt, unless vendee has opportunities of seeing 
 
 goods, 502 
 acceptance within 17th section, 503 
 there must be a writing, or a part payment, or a delivery and acceptance, to 
 
 satisfy 17th section, 505 
 extension of Statute by 9 Geo. IV. c. 14, 505 
 when note or memorandum sufficient to satisfy. 505 
 verbal agreement to grow wheat not binding, 507 
 name and address of vendee written by himself at bottom of list of articles 
 
 purchased, sufficient to satisfy 17th section, 507 
 contract for sale of mining shares not sale of land within 1th section, nor sale 
 
 of goods within 17th section, 50S
 
 INDEX. 62[: 
 
 FRAUDS (STATUTE OF)-conti7med. 
 
 promise by a third party to pay contingent damages within statute, 561 
 what constitutes acceptance within statute, 579 
 satistied by half-penny deposit, 580 
 money must actually pass, 582 
 
 feeding cattle with owner's consent, not sufficient evidence of acceptance, 583 
 acceptance after delivery to satisfy statute, 584 
 
 contract for sale of horse not to be performed within a year within Ith section 
 585 - ' 
 
 acceptance within statute by borrower of horse, 586 
 extension of statute by 9 Geo. IV. c. U, 587 
 
 FREEHOLD INTEREST, 
 
 in right and title to a passage for water passes by deed only, 71 
 
 FREE MINERS, 
 
 their rights, 80 
 
 FREE WARREN, 
 franchise of, 384 
 birds of, 385 
 
 FRUCTUS INDUSTRIALES, 
 hops are, 51 
 definition of, 59 
 
 FRUITS, 
 
 sale of growing fruit an interest in land, 54 
 
 growing fruit passes to heir, 54 
 
 cannot be taken by tenant for life. 54 
 
 nor levied under B,fi.fa., 54 
 
 penalty for wilful damage to fruit trees, 137 
 
 FURNITURE, 
 
 agreement by landlord to supply complete furniture, must be in writing, CO 
 FURZE, 
 
 planted for ornament, protected under term ornamental timber, 1 2G 
 
 GALES, 
 
 grants of, by foresters, 80 
 
 GAME, 
 
 no notice to trespassers in pursuit of, necessary, 303 
 
 right of property in, 367 
 
 taking, without certificate, 368 
 
 summary conviction for being in pursuit of, at night, 369 
 
 trespass in pm-suit of, by shooting from highway, 370 
 
 right to kill, exercised for seven years, 370 
 
 right of keepers to apprehend persons in search of, 370 
 
 prosecutions under 1 & 2 Will. IV., s. 32, must be commenced within a year, 370 
 
 law as to apprehension of persons in pursuit of game, 371 
 
 taking game on Sunday or Christmas day, 374
 
 626 INDEX. 
 
 GAilE — contimiccl. 
 
 reasonable time for keeping game after season, 574 
 
 claim of right to kill game, 376 
 
 young pheasants under coops not game, 382 
 
 assessment of land %Yithout game, 383 
 
 reservation of game by lessor, 384 
 
 trespassing on land where game reserYcd to lord of manor, 38G 
 
 compensation for damage by game, 389 
 
 action for damage by dog hunting game, 391 
 
 damage by game to crops, 391- 
 
 pursuit of game, 392 
 
 persons taken with game on highway, 392 
 
 GAME-DEALER, 
 
 right to sell live pheasants, 375 
 
 GAMEKEEPER, 
 
 authority of, to seize dogs, 368 
 
 to take game from poachers, 370 
 rights of, to apprehend poachers, 370 
 forcible rescue of poacher from custody of gamekeeper, 372 
 
 GATE, 
 
 erecting gate across footpath, 94 
 
 action by reversioner for fastening gate, 95 
 
 obligation of railway companies as to gates, 145 
 
 of occupation road across railway, 150 
 
 neglect to fasten gate over railway, 152 
 
 railway company bound to keep their gate shut, 159 
 
 trespass for breaking, 257 
 
 GLANDERS, 
 
 penalty for selling glandered horse, 598 
 
 GLEAN, 
 
 poor have no legal right to, 344 
 
 GLEBE, 
 
 rights of incumbent as to, 310 
 
 tenancy of glebe lands under two successive incumbents, 435 
 
 right of incumbent to immediate possession of, 435 
 
 GOGGLES, 
 
 sheep affected with, 567 
 
 GRANT, 
 
 privilege of washing sand, &c., from a mine down natural stream subject of 
 
 grant, 86 
 right to work mines an incident to grant of mines. 81 
 way of necessity arises from presumed grant, 89 
 right of way can only arise by grant, 90 
 of an occupation way, 93 
 implied grant of way of necessity, 101
 
 INDEX. 627 
 
 GRAl>iT—contim(cd. 
 
 to pass coal under fore shore, 169 
 
 right of fishing passes by grant of water, 170 
 
 right of polluting stream suljject of grant, 181 
 
 GRASS, 
 
 purchase of standing crop of, 56 
 
 purchase of mowing grass. 68 
 
 cannot be seized under a fi. fa., 57 
 
 sowing grass seed does not make permanent meadow, ;>08 
 
 GROUSE, 
 
 frightening, with fii'e-works, 376 
 
 GROWING CROPS, 
 
 agreement for sale of, when it confers an interest in land, 60 
 
 agreement of sale of, distinct from letting land, 60 
 
 distrain of, 291 
 
 seizure of, under nji. fa., 292 
 
 law as to seizure of, 293 
 
 unregistered transfer of, good against execution creditor, 303 
 
 GUN, 
 
 taken away from trespasser, 371 
 
 free liberty to hunt and hawk, granted by deed in 1655, will not extend to 
 shooting with a gun, 384 
 
 HARES, 
 
 sending on a dog to drive hares into a net, 369 
 
 property in, 367 
 
 taking hares by night, 373 
 
 occupier's right to kill hares, 373 
 
 form of authority to kill hares, 374 
 
 HAY, 
 
 distrain of, 291 
 
 sale of, to be consumed on premises, 298 
 
 custom of country as to consumption of, 299 
 
 removing hay from farm, 316 
 
 covenant to consume. 326 
 
 not to sell, 327 
 penalty for carrying away, 327 
 definition of, 328 
 weight of, not to be increased by water, 523 
 
 HAYSTACK, 
 
 licence to stack hay on land, 71 
 
 horse killed by fall of, 139 
 
 fire caused by spontaneous ignition of, 360 
 
 left on land by outgoing tenant, 339 
 
 sold but burnt before paid for, 494 
 
 HAYWARD, 
 
 duties of, 269 
 
 s s 2
 
 628 INDEX. 
 
 HEDGES, 
 
 property in, 131 
 
 prima facie, belong to owner on whose side ditch is, 131 
 
 clipping hedge by one tenant in common, 135 
 
 rule as to hedge cuttings, 136 
 
 powers of sm-veyors to cut hedges, 142 
 
 incumbents' duty to maintain, 310 
 
 specific covenant to repair, 310 
 
 cows poisoned by clippings from yew hedge, 604 
 
 HEPJOT, 
 
 definition of, 443 
 
 not rateable, 443 
 
 custom of copyholders as to, 443 
 
 landlord's right to, 444 
 
 payment in lieu of, 444 
 
 HIGHWAY, 
 
 evidence of existence of, 101 
 
 use and dedication of, 101 
 
 free right of public to enjoyment of, 102 
 
 right ofowners to enclose part of, 102 
 
 right of Justices to determine, 102 
 
 surveyor of, liability of, for accident through non-repair of, 103 
 
 where close joins highway, half highway passes with close, 104 
 
 order of Justices to stop highway, 105 
 
 mere tracks no proof of, 106 
 
 liability to repair, 134 
 
 obligation to fence, 134 
 
 planting trees adjacent to highway, 141 
 
 cattle ,straying on, 144 
 
 liability of railways to maintain fence between railway and highway, 149 
 
 trespass against surveyor of, 351 
 
 negligent riding on, 362 
 
 trespass by shooting from, 370 
 
 persons taken with game on, 392 
 
 HIRING {sec Servants). 
 
 HOBBETT, 
 
 sale of wheat by, 522 
 
 HOLDING OVEE, 
 
 operation of Stat. 8 Anne, c. 14, 294 — 29G 
 
 by co-tenant, 450 
 
 after expiration of lease, 450 
 
 permissive, after notice to quit, 451 
 
 must be continuous to entitle to double value, 470 
 
 HOLIDAYS, 
 
 contract for hiring may be qualified by proof of customary, 199
 
 INDEX. 629 
 
 HOOF, 
 
 contraction of, in horse unsoundness, 569 
 
 HOPS, 
 
 sale of growing, 50 
 
 sale of sulphured, 529 
 
 acceptance of, within Statute of Frauds, 534 
 
 HORSES, 
 
 injured through Lad fence, 138 
 
 killed by fall of haystack, 139 
 
 depasturing a vicious horse, 167 
 
 servant driving his own horse in master's service 214 
 
 injured on railway, 234 
 
 left in siding all night, 245 
 
 injury to, when saddled and bridled, 252 
 
 detention of, by livery stable keeper, 253 
 
 race-horse injured, damage limited to £50, 254 
 
 frightened by traction-engine, 361 
 
 warranty of, 542, 543, 544 
 
 hirer of, to use reasonable care, 549 
 
 warranted six years old, 551 
 
 partnership in, 559 
 
 riding horse without licence of owner, 561 
 
 warranted " sound and quiet in harness," 661 
 
 good drawer, 561 
 diseases and unsoundness in, 566 — 571 
 agreement to take back within certain time, 573 
 reasonable trial of, 574 
 borrowing, before actual delivery, 585 
 lien on race-horses, 590 
 auctioneer's lien on, 591 
 purchaser's duty to return unsound, 595 
 right to return within certain time, 596 
 sale of stolen, 597 
 sale of glandered, 598 
 injured at livery stables, 601 
 slaughtered at kennels, 603 
 
 HOESE-DEALER, 
 
 warranty by servant of, 554 
 
 HORSE-DEALING, 
 
 general rule of, 553 
 
 HUNTING, 
 
 right to follow fox, 365 
 law as to trespass by, 366 
 
 HUNTSMAN, 
 
 though hired at yearly wages a servant, 201
 
 G^O INDEX. 
 
 HUSBANDLIKE MANNER, 
 
 promise to farm in, implied, S06 
 
 mere relation of landlord and tenant insufficient consideration for promise to 
 farm in, SOfi 
 
 HUSBANDRY, 
 covenants, 306 
 
 IGNITION, 
 
 spontaneous, of hayrick, 3G0 
 
 IMPROVEMENTS, 
 
 encouraging, under lease known to be bad, 312 
 allowance for lasting, 316 
 
 compensation to outgoing tenant for drainage, 330 
 for manure, 330 
 
 INCLOSUEE COMMISIONERS, 
 
 power of, to set out private road, 105 
 their rights to enter land, 34:6 
 
 INCUMBENT, 
 
 may break up ancient meadow, 309 
 
 cannot recover against previous incumbent for not cultivating land in husband- 
 like manner, 310 
 what knowledge necessary in valuers between outgoing and incoming, 333 
 death of, within thi-ee months of award, 402 
 removal of hothouse by late incumbent's executor, 431 
 tenancy of glebe lands under two incumbents, 435 
 new incumbent a right to immediate possession of glebe, 435 
 
 INJUNCTION, 
 
 against tenant for life for cutting underwood of insufficient growth, 121 
 to prevent the cutting down avenues, 125 
 
 ornamental timber, 126 
 to prevent breaking up meadow for building, 308 
 perpetual, to restrain breaking up down lands, 309 
 not granted to restrain turning rabbit warren into potato ground, 310 
 granted to restrain tenant from year to year from damaging hedge-rows, 310 
 to prevent mustard or flax being sown, 309 
 not granted to prevent incumbent from breaking up meadow, 310 
 
 INJURY, 
 
 to trees, 136 
 
 to vegetables, 137 
 
 to horse through bad fence, 138 
 
 by dog chained up to person lawfully on premises, 163 
 
 to reversion by diverting stream, 194 
 
 to stranger by negligence of fellow-servant, 217 
 
 to servant helping servant, 217 
 
 to servant by negligence of fellow-servant, 218 
 
 to servant using machine, 218
 
 INDEX. 631 
 
 INJURY — continued. 
 
 to servant from unsafe ladder, 219 
 
 to horses on railway, 234 
 
 to cattle, 237, 240 
 
 to horses in cattle truck, 247 
 
 to cow on railway, 252 
 
 to race-horse, 254 
 
 valuable greyhound, 254 
 
 INNKEEPER, 
 
 has no lien on a horse for its keep, unless brought by a guest, 590 
 
 liable for loss of goods deposited in his house, 601 
 
 not liable for damage to horse where due care taken, GOl 
 
 liable for horse being immoderately whipped, 602 
 
 liable for loss of gig placed in open street on market day, 602 
 
 INSURANCE, 
 
 meaning of mortality in policy, 231 
 
 landlord not compelled to spend money from policy, 429 
 
 consequence of omission of statement in policy, 517 
 
 INTERESTS IN LAND, 
 definition of, 50 
 agreement for sale of, 50 
 
 growing hops, 50 
 potatoes, 51-53 
 fruit and vegetables, 54 
 timber, 55 
 underwood, 56 
 grass, 56 
 
 crops when it confers an interest in land, (iO 
 with landlord to accept new tenant, '61 
 to surrender, 62 
 
 by tenant to pay landlord for consent to assignment of term, C6 
 easement of " grass for a cow," does not create, 67 
 mortgagee of tenants" fixtures has, 68 
 
 IRREGULAR DISTRESS, 
 
 of things in manual use, 266 
 
 of cattle not in locus in /juo, 266 
 
 of wrong sheep, 278 
 
 after determination of tenancy, 288 
 
 where actual damage resulted, 296 
 
 of privileged goods, 297 
 
 IRRIGATION, 
 
 rights of riparian owner as to, 187 
 
 diversion of water for, 189 
 
 by artificial dam, 191 
 
 ci'Qssing another's land for purposes of, 192 
 
 by artificial cut. 1 93
 
 632 INDEX. 
 
 KEEP, 
 
 recovery of, in case of horse returned for broken warranty, 593 
 recovery of, when contract broken, 591 
 
 LABOUKER, 
 
 general hiring of agricultural, 200 
 taking rabbit by order of farmer, 38| 
 
 LADDER, 
 
 injury to servant from use of unsafe, 219 
 
 EAMINITIS, 
 
 unsoundness in horse, 569 
 
 LAND, 
 
 interests in, 50 — 68 
 licence to enter upon, 72 
 
 LANDLORD, 
 
 agreement with, to accept new tenant, 61 
 
 by tenant to pay, for consent to assignment of term, 66 
 
 by to supply complete furniture, 66 
 outgoing tenant must give up possession to, 321 
 payment by, for manure and tillages, 331 
 estoppel of tenant from denying the title of, 357 
 estoppel between landlord and tenant, 418 
 not compelled to spend fire insurance money, 429 
 not compelled to rebuild farm-house, 430 
 action in County Court by, to evict tenant, 437 
 
 right of occupier to recover property-tax paid on behalf of landlord, 440 
 his right to heriots, 444 
 claim to rent under Ji. fa., 469 
 implied promise by, not to stop sale, 276 
 authority by, to distrain, 278 
 
 LARCENY, 
 
 by farming servants, 223 
 by drover, 225 
 by pig- jobbers, 226 
 of bees and swans, 345 
 pigeons, subjects of, 344 
 
 LEASE, 
 
 operative words in, 410 
 
 agreement, when operates as, 410 
 
 contract for sale of agreement for lease does not imply lessor's power to, 411 
 
 instrument void as lease, good as agreement, 413 
 
 parol agreement for, 415 
 
 not giving possession, no breach under a new agreement for, 416 
 
 expired, 416 
 
 money recoverable from inability to grant, 419 
 
 binding agreement for, 420 
 
 holding over after expiration of, 450
 
 INDEK. 033 
 
 LEASE — continued. 
 
 lessee bound to deliver up, 473 
 
 vendor liable for false representation of, 538 
 
 LEAVE AND LICENCE, 
 
 plea of it by landlord to entering land and cutting timber, 121 
 
 LIBERUM TENEMENTUM, 
 
 tenancy in common cannot be given in evidence under plea of, 136 
 plea of, 352 
 
 LICENCE 
 
 to stack hay, 71 
 
 to stack coals, 71 
 
 irrevocable, though granted by parol, 71 
 
 to enter upon land, 72 
 
 definition as to, how determined, 72 
 
 by parol to put in a light, cannot be recalled, 72 
 
 to divert water, 73 
 
 verbal, not sufficient to convey easement of drain over land of another, 74 
 
 to make reservoir for dye -water and soke, 75 
 
 LIEN, 
 
 none in case of agistment, 589 
 
 livery- stable keeper has no, 589 
 
 innkeeper has no lien, except in case of guest, 590 
 
 general rule of, 590 
 
 on race horses, 590 
 
 auctioneer's, 591 
 
 LIMITATIONS (STATUTE OF), 
 
 application in cases of warranty, 487 
 
 what sufficient acknowledgment to take debt out of, 508 
 
 LINSEED CAKE, 
 warranty of, 485 
 
 LIVERY-STABLE KEEPER 
 
 has no lien on horses, 589 
 
 LODGINGS, 
 
 hire of, at a yearly rent an interest in land, 04 
 
 LORD OF MANOR, 
 
 right of, to fallen rocks, 110 
 
 entry by, 345 
 
 his exclusive right to sport, 382 
 
 not entitled to shoot over commons, 383 
 
 his rights as to pound, 270 
 
 LUMBAR, 
 
 affection of nerves in lumbar region, unsoundness in horse, 570 
 
 MALICIOUS PROSECUTION 
 for sheep stealing, 600
 
 634 INDEX. 
 
 MANSLAUGHTER, 
 
 iu the owner of a dangerous animal. 155 
 by keeping dangerous bull at large, 1(>3 
 by depasturing a vicious horse, 1(17 
 
 MANURE, 
 
 flow of liquid manure into neighbour's field, ISl 
 
 covenant to spend a certain sum in, 315 
 
 compensation for. 330 
 
 payment by landlord for, 331 
 
 bringing value of straw back in manure, 33 G 
 
 " made on farm," definition of, 33!) 
 
 assignable by the tenant, 338 
 
 right of outgoing tenant to on-stand for, 331) 
 
 covenant to bring manure for hay sold, 339 
 
 agreement to sell manure, 340 
 
 exempt from toll, 340 
 
 selling manure not corresponding with warranty, 527 
 
 MARKET, 
 
 pigs too late for, 255 
 
 definition of '' market value," 494 
 
 law of the, 517 
 
 rights of seller in public market, 518 
 
 legally established, 519 
 
 fraud on lessee of. 519 
 
 o^^^ler of, liable for nuisances arising therefrom, 525 
 
 selling horses within limit of, 526 
 
 carrier indictable for taking bad meat to, 529 
 
 recovery of difference between sale and market price, 532 
 
 sale by public auction, not sale in market overt, 597 
 
 MASTER. {Sec Servant.) 
 
 MEADOW, 
 
 lord of manor cannot bring bill for meadow broken up by defendant's testator. 
 
 307 
 injunction against breaking up meadow for building purposes, 308 
 ploughing up ancient meadow, 309 
 rights of incumVjents as to, 310 
 permanent meadow not made by sowing clover and grass seed, 308 
 
 31 EAT, 
 
 warranty of sound, 489 
 
 selling bad, 529 
 
 no implied warranty that meat fit for food, 528 
 
 carrier indictable for taking bad meat to market, 529 
 
 absence of intent to sell bad meat, 529 
 
 MEDICINE, 
 
 improper administration of, by vetcrinary's servant, 218 
 
 giving medicine to hired horse, 575 
 
 chemist's liability for selling improper medicine, 577
 
 INDEX. 635 
 
 MESH, 
 
 definition of, 36-1 
 
 MILK-CARRIER'S 
 agreement, 223 
 
 MILK-WALK, 
 
 agreement to purchase, with possession of premises, 64 
 
 MILKING 
 
 cows in pound, 270 
 
 MINES, 
 
 right to work, is an incident to grant of, 81 
 
 privilege of washing sand dislodged from tin-mine, 86 
 
 MODUS, 
 
 proper farm, 402 
 decimandi, 402 
 
 MORTALITY, 
 
 meaning of, in insurance policy, 231 
 
 MORTMAIN ACT, 
 
 bequest of pure personalty to a charity to purchase and restore to church impro- 
 priate tithes void under, 395 
 
 NAVICULAR 
 
 disease of joint in horse unsoundness, 569 
 
 NECESSITY (WAY OF), 
 
 cannot be pleaded without showing its character, 8S 
 
 effect of unity of possession, 88 
 
 law as to, 88 
 
 definition, of, 89 
 
 limited by necessity which created it, 89 
 
 arises from presumed grant, 89 
 
 right of, can only arise by grant, 90 
 
 implied grant of, 104 
 
 NERVES, 
 
 affection of, in lumbar region, 570 
 
 NET, 
 
 definition of mesh of, 364 
 
 NIGHT, 
 
 poaching, 369 
 
 entering land at, armed, 369 
 
 taking or killing hares or rabbits by, 373 
 
 definition of, 373 
 
 NON-DELIVERY 
 
 of goods sold at sheriff's sale, 302
 
 636 INDEX. 
 
 NOX-USER (OF WAY), 
 
 supported by vrhat evidence, 82 
 immemorial right of way not lost by, 86 
 presumption of abandonment not to be made from, 86 
 
 NOT GUILTY, 
 
 puts in issue " scienter," 165 
 
 effect of plea of, in action for damage done to plaintiif's sheei^, 167 
 plea of, in action for obstructing flow of water, 170 
 
 plea of, puts in issue the fact that the driver was not defendant's servant at 
 time of accident, 21'.) 
 
 NOTICE TO QUIT, 
 
 by one joint-tenant, 432 
 
 who may give, 432 
 
 when date of commencement of tenancy not known, 433 
 
 insufficient, 434 
 
 two years, 436 
 
 permission to hold over after, 451 
 
 may be given by parol, 432 
 
 given by agent's agent, 432 
 
 NOTICE TO TRESPASSERS 
 not necessary, 3G3 
 
 NURSERYMAN, 
 
 rights of. to remove trees, 122 
 
 trees, shrubs, and plants, planted in a nursery -ground subsequent to demise 
 cannot be seized, 292 
 
 OBSTRUCTION 
 
 of ancient lights, 77 
 
 of public footway, 94 
 
 by erecting gate across footpath, 94 
 
 OCCUPATION 
 
 road across railway, 1 50 
 
 OCCUPIER, 
 
 duty of, to repair fences, 132 
 
 obligation on, to fence dangerous places, 137 
 
 right of, to kill hares, 373 
 
 liability of, to pay rates, 438 
 
 power of, to deduct rates from rent, 438 
 
 right of, to recover property-tax paid on behalf of landlord, 440 
 
 ODD MARK, 
 
 meaning of, 322 
 
 right of tenant to remove, 322 
 
 ON STAND, 
 
 right of outgoing tenant to, 339
 
 INDEX. 637 
 
 ORNAMENTAL TIMBER, 
 
 right of devisee in fee to cut down, 113 
 
 definition of, 126 
 
 may extend to furze, 126 
 
 rights of tenant for life as to, 126 
 
 OVERCROPPING, 
 not waste, 315 
 not within meaning of non-cultivation, 315 
 
 OWNER, 
 
 of savage animal, liability of, 155 
 
 caution from owner of dog, 160 
 
 obligation of owner of vicious animal, 163 
 
 rights of riparian, 178 
 
 unqualified right of owner to drain, 189 
 
 of land need not prove non-permission, 371 
 
 right of, to dig minerals on lands adjoining railway, 100 
 
 of ancient house entitled to lateral support of neighbour's land, 100 
 
 rights of, to enclose part of highway, 101 
 
 of market liable for nuisance arising therefrom, 525 
 
 rights of, to support of underground strata, 80 
 
 OWNERSHIP, 
 
 unity of, destroys prescriptive right, 76 
 presumption of ownership of ditch, 131 
 and tenancy, prima facie evidence of contract, 447 
 
 PAROL, 
 
 hiring by, 204 
 agreement for lease, 415 
 
 PAROL EVIDENCE, 
 
 evidence of oral agreement, 464 
 
 when not receivable, 480 
 
 admissible to exjjlain trade terms, 481 
 
 words of description may be contradicted by, 482 
 
 PARTNERSHIP 
 in a horse, 559 
 
 PASTURE, 
 
 covenant to manage, 308 
 
 breaking up, 308 
 
 sowing clover or grass does not make permanent, 308 
 
 ploughing up ancient, 309 
 
 rights of incumbents to break up, 310 
 
 penalties for ploughing up, 312 
 
 PENALTY 
 
 for ploughing up footpath, 106 
 for riding on footpath, 141 
 for ploughing up pasture, 312 
 for sowing noxious plants, 313
 
 638 INDEX. 
 
 FE'SALTY—cmtimied. 
 for uudeiietting, 314 
 for cross-cropping, 3 14 
 
 PHEASANTS, 
 
 right to deal in live, 375 
 
 tame, are subject of larceny, 375 
 
 young birds in coop under hens not game, 382 
 
 trespass by shooting, from highway, 37L) 
 
 PIGEONS, 
 
 subjects of larceny, 344 
 
 PLOUGH, 
 
 beasts of, distrain of, 286 
 
 PLOUGHING 
 
 up public footpath, 94 
 up footpath, penalty for, lOG 
 up ancient meadow, 309 
 right of incumbent to, 310 
 up pasture, penalty for, 312 
 
 POACHER, 
 
 cannot give evidence for himself, 368 
 non-entry of some of poachers on land, 369 
 right of gamekeeper to apprehend. 370 
 damaging fence not malicious, 372 
 forcible rescue of, from unlaveful custody, 372 
 found with rabbits on highway, 376 
 
 POACHING, 
 
 with dogs, 367 
 
 conviction for, under 9 Geo. IV., c. 69, 369 
 
 hares or rabbits by night, 373 
 
 game on Sunday or Christmas Day, 374 
 
 in pursuit of game, 392 
 
 apprehension of persons, under Game Act, 393 
 
 POISON, 
 
 cows poisoned in pasture, 603 
 
 cattle poisoned by eating yew clippings, 604 
 
 acquiescence of owner in erection of poisonous works, 604 
 
 cattle poisoned by lead works, 605 
 
 symptoms of sulphate of lead, 606 
 
 POLES, 
 
 cutting ash poles by tenant, 124 
 
 POND, 
 
 compensation to tenant for life for loss of, 198 
 
 POOR RATE, 
 
 rating of saleable underwoods, 119 
 rating of coprolites, 120 
 assessment of tithes to, 405
 
 INDEX. 639 
 
 POSSESSION, 
 
 unity of, destroys a title by prescription, 76 
 
 duty of outgoing tenant to give up possession to landlord, 321 
 
 legal possession against trespassers, 345 
 
 not giving possession no breach under a new agreement for a lease, 410 
 
 new incumbent has right to immediate possession of glebe, 435 
 
 POTATOES, 
 
 sale of growing, 51 — 53 
 sale of " ware," 480 
 
 POUND, 
 
 duties of keeper of, 208 
 
 treatment of animals in, 269 
 
 conviction of persons releasing animals from, 270 
 
 open field a sufficient, 283 
 
 POUNDAGE, 
 
 sheriff not entitled to, when proceedings set aside, 304 
 
 PEESCEIPTION, 
 
 unity of ownership destroys title by, 76 
 claim of Stat. 2 & 3 Will. IV., c. 71, 81 . 
 right of way by, for carriages, 92 
 , right to light for windows by, 96 
 
 right to three-fourths of a right of common by, 101 
 
 PRESUMPTION 
 
 of abandonment not to be made from mere non-user, 80 
 of property in piivate way, 103 
 of ow^lershi2) of ditch, 131 
 of right to pollute water, 180 
 
 PRINCIPAL 
 
 responsible for agent's fi-aud, 55G 
 
 PRIVATE, 
 
 distinction between private and public way, 103 
 presumption of property in private way, 103 
 appropriation of private way, 105 
 dedication of private road to public, 100 
 warranty incorporated into conditions of sale, 551 
 
 PROFIT A PRENDRE, 
 
 right to take water from a well not, 77 
 what is, 78—81 
 . liberty to sport is a, 384 
 
 PUFFERS 
 
 at auction sales, 550 
 
 QUANTUM MERUIT, 
 
 recovery of remuneration on, 490 
 
 veterinary surgeon recovers on it, where no contract, 579
 
 64 IXDEX. 
 
 QUITTIXG, 
 
 different times of, 433 
 
 BABBITS, 
 
 taking by night, 378 
 
 poacher found with, on highway, 376 
 
 retaking them from poacher, 378 
 
 property in, 379 
 
 right of tenant to kill, 380 
 
 laboui-er taking, by order of farmer, 381 
 
 liberty to kill, with ferrets only, 385 
 
 shooting, where exclusive right of shooting let, 3i)2 
 
 trade meaning of 1000 rabbits, 482 
 
 EACE-COURSE, 
 
 claim of right by custom to use, 349 
 
 EACE-HORSE, 
 
 injury to, damage limited to £50, 254 
 
 RAILWAYS, 
 
 liability to maintain fences, 140 
 obligation as to gates, 145 
 obligation to fence, 146 
 their liability as to level crossings, 147 
 cattle straying on, through station yard, 148 
 liability to maintain fence between railway and highway, 149 
 occupation road across, 150 
 
 "not bound to fence one part of premises from another, 152 
 neglect to fasten gate, 152 
 bound to leave their gates shut, 152 
 sheep killed on, 158 
 
 water escaping from cutting into mine, 196 
 Railway Clauses Consolidation Act, 232 
 • their liability at common law, 232 
 restriction of their liability by booking ticket, 233 
 ijijury to horses, 234 
 
 cattle, 235 
 
 through truck taking fire, 237 
 negligence, 238 
 collision, 240 
 construction of conditions on ticket, 241 
 Railway and Canal Traffic Act, 242 
 just and reasonable contract by, 244 
 injury to horse left in sidmg, 245 
 
 cattle suffocated in van, 246 
 
 horses placed in cattle truck, 247 
 
 cattle through being crowded, 251 
 contract with first railway does not make second railway liable, 251 
 must be sued within County Court district of principal place of business, 251 
 their conditions must be reasonable, 252
 
 INDEX. 641 
 
 RAILWAY S — continued. 
 injury to cow, 252 
 
 horse sa'ldlecl and bridled, 252 
 cattle dealers on, travel at their own risk, 253 
 unreasonable conditions, 254 
 injury to racehorse, 254 
 
 valuable greyhound, 254 
 delay in forwarding pigs, 255 
 cheese, 257 
 by fall of snow, 250 
 sack conditions of Great Northern, 261 
 
 giving notice to consignor of consignee's refusal to receive, 2G3 
 delivery of goods by, within reasonable time, 264 
 injury to dog through bemg improperly secured, 264 
 fire by sparks from locomotive, 360 
 horses frightened by, 361 
 
 RATES, 
 
 rating of saleable underwoods, 119 
 
 rating of coprolites, 120 
 
 assessment of tithe to poor rate, 405 
 
 rent-charge of district church not rateable, 406 
 
 rent-charge not liable to sewers rate, 406 
 
 occupier of tithe rent-charge may deduct curate's salary from rateable value, 407 
 
 assessment of occupier of tithe rent-charge, 409 
 
 occupier's liability to pay rates, 438 
 
 RENT, 
 
 tender of, proper person to receive, 271 
 
 tender of, sufficient amends, 272 
 
 detaining goods after tender of, 274 
 
 agreement to take interest on rent in arrear, 277 
 
 authority by landlord to distrain for, 278 
 
 payment of, under distress no admission of title, 278 
 
 action for, by tenants in common, 289 
 
 underlessee's power to distrain, 289 
 
 increase of, does not create new tenancy, 290 
 
 where claim is for, there can be no interpleader, 303 
 
 distress for, an affirmation of tenancy, 303 
 
 receipt oi, prima facie evidence of title, 411 
 
 an actual demise at yearly rent, implies a tenancy from year to year, 412 
 
 new tenancy not created by mere increase of rent, 412 
 
 power to distrain for, mider Stat. 4 Geo. IV., c. 28, 418 
 
 lessee must seek lessor to tender rent, 426 
 
 eviction of tenant when operating as suspension of rent, 437 
 
 occupier's power to deduct rates from rent, 438 
 
 right of occupier to deduct property-tax from rent, 441 
 
 receiving rents from an imder-tenant— proof of use and occupation, 448 
 
 re-entry on non-payment of, 451 
 
 reservation of, in corn, 452 
 
 T T
 
 642 INDEX. 
 
 KENT — contimced. 
 
 landlord's claim for. under fi. fa., 4G9 
 rights of presumptive heir to, iG'J 
 receipt of, from third party, 470 
 
 KENT-CHARGE, 
 
 distraining cattle of stranger for, 275 
 
 recovery of, by distress, 280 
 
 distress by grantee of, 2'J2 
 
 value of, 394 
 
 land only liable for tithe rent-charge, S9.5 
 
 apportionment of, by commissioners, 396 
 
 on hops, 405 
 
 of district church, not rateable, 406 
 
 not liable to sewers rate, 406 
 
 grantee of, liable to income-tax, 406 
 
 outgoings include land-tax and rent-charge, 407 
 
 occupier of, to deduct curate's salary from rateable value, 407 
 
 lessee of tithe rent-charge not entitled to deduct cm-ate's stipend, 408 
 
 assessment of occupier of tithe rent-charge, 409 
 
 EEPAIRS, 
 
 liability of surveyors for neglecting to repair highways, 103 
 
 right to repair fences in churchyards, 113 
 
 right to cut timber for necessary repairs, 127 
 
 duty of occupier to repair fences, 132 
 
 of private road, 133 
 
 liability to repair highway, 134 
 
 covenant to repair hedges, 310 
 
 to keep buildings in repair, 315 
 interest of reversioner in repair of premises, 425 
 covenant to repair, 426 
 
 to yield up in good repair, 427 
 rule as to keeping premises in repair, 427 
 meaning of good repair, 428 
 
 tenant from year to year not bound to do substantial repairs, 428 
 measure of damaiges for not keeping in repair, 429 
 allowance by Court of Chancery for repairs, 431 
 covenant to repair, 454 
 
 REPLEVIN 
 
 lies after tender made of sufficient sum before distress, 272 
 
 only remedy where exorbitant demand made for compensation, 273 
 
 lies for wrongful detention of goods after tender, 279 
 
 when maintainable, 299 
 
 REPRESENTATION, 
 
 tenant underletting by false, 422 
 distinction between it and warranty, 542 
 fraudulent at time of sale, 553 
 must be known to be false, 553 
 agent's, that he had power to act, 467
 
 INDEX. 643 
 
 EESCUE 
 
 of impounded cattle, 207, 268 
 
 RESERVATION 
 
 of game by lessor, 384 
 of all royalties, 385 
 
 RESERVOIR. 
 
 licence to make, for dye-water and soke, 7."> 
 
 REVERSION. 
 
 injury to, by blocking up ancient lights, 77 
 
 right of reversioner to bring action for obstruction to easements, 87 
 
 assignees of, may be sued by outgoing tenant on a contract or custom of the 
 
 country, 319 
 injury to, by diverting stream, 194 
 distress by joint-tenants of, 288 
 
 REVERSIONER, 
 
 cannot bring action for simple trespass, 94 
 
 injury must be permanent to enable him to bring action, 95 
 
 action by, for chaining gate, 95 
 
 discharging eaves' water on land of, 107 
 
 legal possession of timber in, 110 
 
 right of, to bring action against surveyor of highways for cutdng fence, 143 
 
 right of, to prevent waste, 309 
 
 action by, for trespass, 348 
 
 cannot apprehend trespasser, 363 
 
 interest of, in repair of premises, 425 
 
 RIDING, 
 
 penalty for riding on foot-path, 141 
 horse without licence of owner, 56 1 
 
 RIPARIAN, 
 
 right of riparian owners to water, 171 
 rights of riparian owners generally, 178 
 riparian or irrigation right, 187 
 
 RIVER, 
 
 property in accretions from a non-navigable, 169 
 property in, ad medium Jilum aqucc, 170 
 
 ROCKS, 
 
 right of lord of manor to fallen, 110 
 
 ROOKERY, 
 
 action not maintainable for firing a gun near, 385 
 
 ROOKS, 
 
 feroe naturce, and not protected by either Common Law or Statute, 3S4 
 
 ROYALTIES, 
 
 reservation of, what included in, 385
 
 644 INDEX. 
 
 SACKS, 
 
 hire of, 260 
 
 conditions of Great Northern Railway as to, 261 
 
 private sack companies, 263 
 
 liability of consignor of grain as to hiring, 263 
 
 liabilities of hirers of, 263 
 
 SALE, 
 
 agreement for, of growing roots, hops and potatoes, 50 
 of frnit and vegetables, 54 
 of growing timber and underwood, 55, 56 
 of growing crops, 59, 60 
 of tillages, 61 
 of seized crops for fiill value, 294 
 of farming stock taken in execution, 298 
 of hay and straw to be consumed on the premises, 298 
 non-delivery of goods sold at sheriffs', 302 
 of a close inaccessible except by way over another close, 476 
 default of, by purchaser in complying with conditions of, 477 
 of reputed water-meadow, 479 
 of a fee-farm rent, 479 
 by sealed tenders, 479 
 
 printed particulars of, cannot be parol evidence, 479 
 of " Ware " potatoes, 480 
 of turnip seed, 487 
 of specific chattel on credit, 494 
 of Peruvian guano, 514 
 of corn by sample, 523 
 
 of bad meat, 529 
 
 of bad cider, 529 
 
 of sulphured hops, 529 
 
 of refuse cake, 530 
 
 of sain-foin seed adulterated with burnet, 530 
 
 recovery of difference between sale and market price, 532 
 
 inaccurate particulars of, 540 
 
 right of agent to remuneration when sale goes off, 541 
 
 fraudulent representation at time of, 533 
 
 by servant, 555 
 
 on credit, 579 
 
 of improper sheep-wash, 577 
 
 by public auction, not sale in market overt, 597 
 
 of stolen horses, 597 
 
 of glandered horses, 598 
 
 conspiracy to cheat by sale of horses, 598 
 
 SALE, BILL OF, 
 
 sale of tenants' goods under, 276 
 of goods not a removal, 295 
 when void against creditors, 515 
 assignment of, as security for debt, 516 
 seizure and sale under, 538
 
 INDEX. 645 
 
 SALESMAN, 
 
 drover no implied authority to receive money from, 229 
 his book-keeper liable for cattle sold, 230 
 
 SAMPLE, 
 
 ordinary rule of buying by, 483 
 
 bulk, not equal to, 484 
 
 article sold by, must be rejected within reasonable time, 481 
 
 right of purchaser to draw samples from bulk after purchase, 500 
 
 refusing to deliver to bankrupt vendee after sample taken, 499 
 
 right of vendee to compare goods delivered with sample, 502 
 
 SCIENTER, 
 
 gist of action for keeping dangerous animals, 155, 156 
 
 evidence of dogs being wont to attack men not sufficient to support scienter 
 
 as to sheep, 157 
 what is evidence of, for jury, 159 
 put in issue by plea of not guilty, 166, 167 
 
 SEA-SHOEE, 
 
 rights as to land formed by alluvion on, 168 
 
 incidents of, 168 
 
 no right to take land from another's close, which had drifted from sea-shore, 79 
 
 SEED, 
 
 sowing clover or grass seed does not make permanent pasture, 308 
 
 sale of turnip, 487 
 
 acceptance of, what constitutes, 503 
 
 contract to furnish turnip seed, 507 
 
 warranty of seed barley, 514 
 
 warranty of, 526 
 
 sale of sainfoin seed adulterated with burnet, 530 
 
 conviction under Adulteration of Seeds Act 1869, 681 
 
 contract for sale of growing turnip seed, 536 
 
 SERVANTS, 
 
 hiring of, on Sunday, 199 
 
 temporary illness of, 199 
 
 express or implied bargain for service. 199 
 
 forfeiture of wages for misconduct, 200 
 
 general hiring of agriculttiral labourer, 200 
 
 jurisdiction of magistrates to discharge, 201 
 
 Master and Servants Act, conviction under, 201 
 
 huntsman a servant, 201 
 
 dismissal of, 203 
 
 contract for service for more than a year, 203 
 
 hiring by parol, 204 
 
 right of servant to quit, 206 
 
 monthly servants, 206 
 
 gardener, a menial servant, 206 
 
 Truck Act, 207
 
 Q4:6 INDEX. 
 
 SEEVAXTS— co«(i»!tcrf. 
 
 master's liability for act of, 211 
 
 veterinary surgeon liable for negligence of, 21." 
 
 master liable where servant drives his own horse in master's service, 214 
 
 servant killed by negligence of another, 214 
 
 no contract by master not to expose servant to risk, 215 
 
 master liable for injury to servant, 215 
 
 injury to stranger by negligence of, 217 
 
 injury to servant helping servant, 217 
 
 master liable for wilful conduct of, 217 
 
 injury to servant through negligence of fellow-servant, 218 
 
 injury to servant using machine, 218 
 
 from unsafe ladder, 219 
 servant going indirect road, 219 
 using master's cai't without leave, 219 
 liability of master as to, defined, 220 
 liability of master for debts contracted by, 222 
 larceny by farm-servants, 223 
 embezzlement by servant, 225 
 unauthorised warranty of horse by, 545 
 warranty by horse-dealers, 554 
 general rule of selling by, 555 
 
 warranty by servant merely entrusted to deliver, 555 
 
 rule of master taking back horse which will not answer warranty given by, 556 
 borrowed horse must not be used by, 574 
 
 SETTLEMENT, 
 
 by hiring and service, 208 
 
 SHAPE, 
 
 badness of, in horse so as to cause unsoundness, 570 
 
 SHEEP, 
 
 evidence of dogs being wont to attack men, not sufficient to support scienter 
 
 as to, 157 
 dogs given to woirying, 158 
 killed on railway through defective fences, 1 53 
 right to shoot dogs engaged in worrying, 1G2 
 of third person, distrain of, 287 
 distrain of wrong sheep by bailiff, 278 
 sale of sheep affected with goggles, 507 
 poisoned by deleterious sheep-wash, 577 
 
 SHEEP-STEALING, 
 
 case of malicious prosecution for, 600 
 
 SHEPHERD, 
 
 breach of contract with, 208 
 
 SHIP, 
 
 injury of cattle on board, 231 
 
 meaning of mortality in policy of assurance, 231 
 
 death of slaves caused by want of provisions on board, 231
 
 INDEX. 647 
 
 SHOOTING, 
 
 dog, when justifiable, 161 
 
 dog, chasing deer. 368 
 
 trespass by shooting from highway, 370 
 
 hare in turnpike road, 376 
 
 pheasant on another's land, 376 
 
 no penalty for shooting near rookery, 38i 
 
 neax decoy, 385 
 
 sale of right of, 388 
 
 rabbits where exclusive right of sporting let, 392 
 
 SLAUGHTER-HOUSE, 
 
 right to slaughter cattle elsewhere than in a public slaughter-house, 602 
 
 action for negligence in not securing cow in, 602 
 
 penalty for using horse sent to kennels to be slaughtered, 603 
 
 SNOW, 
 
 delay on railway by fall of, 259 
 
 SOU;, 
 
 compensation for damage to buildings through subsidence of soil by working 
 
 mines, 101 
 right acquired by house after twenty years uninterruptel enjoyment to lateral 
 
 support of, 101 
 right of seller in market to occupy soil with stalls, &c. , 518 
 
 SOLO ALIENO, 
 
 custom to take profit in, bad, 79 
 
 SOUND, 
 
 " this horse is sound," a warranty, 542 
 meaning of word as applied to horses, &c., 565 
 
 SOUNDNESS, 
 
 warranty of, as to horses, 542 
 
 SOWING, 
 
 clover or grass seed does not make permanent pasture, 308 
 injunction to prevent sowing mustard seed or flax, 309 
 penalties for sowing noxious plants, 313 
 
 SPARKS, 
 
 herbage burned by sparks from engine, 359 
 fire caused by sparks from, 360 
 
 SPAVIN, 
 
 definition of, 549 
 
 SPECIAL CONTRACT, 
 
 may be made by railway companies with their customers, 243 
 
 SPECIFIC PERFORMANCE, 
 
 enforcing specific performance of farming agreement, 471 
 
 SPLINT, 
 
 (in horses), 571
 
 648 INDEX. 
 
 SPOKTIXG, 
 
 lord of manor's exclusive right of, 3S2 
 
 grant of liberty of, 384 
 
 right of. over cattle gates, 386 
 
 demise of, not under seal, 387 
 
 lease of exclusive right of, 388 
 
 shooting rabbits where exclusive right let, 392 
 
 SPEING GUNS, 
 
 set in wood with notice, 390 
 
 in walled garden, 390 
 definition of, 391 
 
 STACK, 
 
 horse killed by fall of, 139 
 fired by sparks from railway, 360 
 fired by spontaneous ignition, 360 
 sold but burnt before paid for, -194 
 
 STALLS, 
 
 law of market as to occupation of, 517, 518 
 
 STAMPS, 
 
 appraisement, when sufficient, 332 
 
 on agreements, 416 
 
 ad valorem stamp duty, 416 
 
 when not necessary, 417 
 
 meaning of subject matter in " Stamp Act," 417 
 
 agreement requiring stamp, 464 
 
 warranty does not require stamp, 558 
 
 STATUTE OF FRAUDS {see Frauds). 
 
 STKAW, 
 
 sale of, to be consumed on premises, 298 
 
 custom of coimtry as to consumption of, 299 
 
 covenant to consume, 326 
 
 consumption of, by incoming tenant, 327 
 
 bringing of value of straw back in manure, 336 
 
 meaning of •' value " of, 337 
 
 selling straw without written licence, 338 
 
 STRAWBERRY-BEDS, 
 waste to plough up, 308 
 
 STRINGHALT, 
 
 unsoundness in horse, 569 
 
 SUNDAY, 
 
 hire of labourers on, 199 
 
 horse-dealing on, legality of, 562 
 
 mares covered on, 563 
 
 farmer not within Sunday Trading Act, 563
 
 INDEX. 649 
 
 SURFACE, 
 
 definition of surface damage, 99 
 damage to surface of land, 100 
 surface water, 186 
 
 SWANS, 
 
 subjects of larceny, 345 
 
 SWINE, 
 
 late for market through delay on railway, 257 
 kept so as to be a nuisance, 602 
 
 TAXES, 
 
 grantee of rent-charge, liable to income-tax, 406 
 
 right of tenant to deduct income-tax. from rent, 439 
 
 outgoings include land-tax, 407 
 
 assessment for land-tax, 438 
 
 special agreement by tenant to pay land-tax, 439 
 
 right of occupier to recover property-tax on behalf of landlord, 440 
 
 right of occupier to deduct property-tax from rent, 441 
 
 TENANT, 
 
 agreement with landlord to accept new tenant, 61 
 
 agreement to suSer another to become tenant for residue of term, 62 
 
 agreement by tenant to pay landlord for consent to assignment of term, 06 
 
 right to take water from well, 66 
 
 mortgagee of tenant's fixtures has an interest in land, 68 
 
 right of tenant for life to sell growing timber. 111 
 
 to cut ripe timber, 111 
 for life, barred by lapse of time from receiving proceeds of timber cut by 
 
 previous tenant. 111 
 for life, permissive waste by, 112 
 tenants in common of a tree, their rights, 116 
 tenant's right to dotards, 124 
 
 has no right to remove box edgings though planted by himself, 125 
 sale of tenant's goods under bill of sale, 276 
 bill of exchange by tenant to agent, 277 
 distress after death of, 282 
 fraudulent removal of goods by, 284 
 demise by a tenant from year to year, 289 
 increase of rent does not necessarily create new tenancy, 290 
 distress an affirmation of tenancy, 303 
 right of tenant to away-going crop, 319 
 
 to compensation for tillages, 320 
 outgoing tenant must give up possession to landlord, 321 
 outgoing tenant's corn may be distrained after expiration of term, 321 
 right of outgoing tenant to away-going crop, 321 
 assignment of tenant-right, 323 
 compensation to outgoing tenant, 329 
 
 for drainage and manure, 330 
 right of outgoing tenant to onstand for manure, 339 
 estoppel of tenant from denying landlord's title, 357
 
 650 INDEX. 
 
 lESA'ST— continued. 
 
 rights of permissive tenant, 357 
 
 lessee for half-year, tenant for years, 410 
 
 new tenancy not created by increase of rent, 412 
 
 right of tenant to specific perfonnance, 414 
 
 estoppel between landlord and tenant, 418 
 
 arbitrators between outgoing and incoming tenant, 419 
 
 refusal of entrance by lessor to new tenant, 423 
 
 refusal of tenant to show farm, 423 
 
 tenant from year to year not bound to do substantial repairs, 428 
 
 notice to quit when date of commencement of tenancy imknown, 433 
 
 tenancy of glebe lands under two incumbents, 435 
 
 action in County Court by landlord to evict tenant, 437 
 
 eviction of tenant when operating as suspension of rent, 437 
 
 from parcel of demised premises, no answer to action for breach 
 of covenant, 437 
 special agreement by tenant, to pay land tax, 439 
 right of tenant to deduct income-tax, 439 
 ownership and tenanc j, 2}7-im a facie evidence of contract, 447 
 holding over by co-tenant, 450 
 tenant's right to remove barn, 455 
 
 stavel barn, 455 
 
 water fender, 456 
 
 staddles, thrashing-machine and granary, 457 
 
 barn on blocks, 458 
 
 building when landlord finds materials, 459 
 
 fixture after determination of tenancy, 460 
 
 pillars of brick, 460 
 trover by tenant for fixtures, 461 
 removal of buildings, after ejectment brought, 461 
 leaving fixtures in same condition, 462 
 contract for quiet enjoyment by, 463 
 not bound to take house seriously defective, 464 
 paying tenant-right to false devisee, 471 
 trespass by tenants on waste, 346 
 TENANTS- IX-COMMON, 
 
 rights of, as to timber, 116 
 
 clipping edge by one, 135 
 
 action for rent by, 289 
 
 action by, 452 
 
 action by one, against another, 470 
 
 TENANT-RIGHT, 1 
 TENDER, 
 
 of amends when not too late, 270 
 
 of rent, proper person to receive, 271 
 
 of sufficient amends, 272 
 
 detaining cattle after, 274 
 
 detaining goods after tender of rent, 274 
 
 trespass maintainable after, 279
 
 INDEX. 651 
 
 THATCHER, 
 
 liability for letting out incompetent, 213 
 
 THRASHING-MACHINES, 
 
 implements of husbandry, 341 
 
 exempt from toll, except liable by local act, 342 
 
 action for non-delivery of, within certain time, 510 
 
 TILLAGES, 
 
 agreement for sale of crops and tillages an interest in land, 61 
 payment by landlord for, 331 
 valuation of, 332 
 
 TIMBER, 
 
 sale of growing, 55 
 
 right of way to cart away, 92 
 
 general demise of land with, 109 
 
 property in, 110 
 
 right to, when severed, 110 
 
 action of waste for felling, 110 
 
 right of tenant for life to sell growing timber. 111 
 
 to cut ripe timber. 111 
 definition of timber, 112 
 taking timber for house-bote, 114 
 conversion of timber trees, 114 
 custom of copy-holders to fell, 114 
 definition of timber trees, 118 
 pollard willows not, 123 
 ornamental timber, 126 
 
 proceeds of timber, which required felling on life estate, 126 
 entry by landlord to cut, 127 
 entire timber contract, 127 
 
 delivery and acceptance of, under Statute of Frauds, 130 
 right of tenant to remove building when landlord finds part of, 459 
 
 TITHES, 
 
 right of road for, 93 
 
 can only pass by deed, 288 
 
 Acts relating to, 394 
 
 20 years' perception of, 394 
 
 bequest of pure personalty to restore tithes void, 395 
 
 land only liable for, 395 
 
 intention of Tithe Commutation Act, 395 
 
 right of vicar to small tithes, 396 
 
 of beans and peas, 396 
 
 distress under Tithes Act, 397 
 
 exemption from, 398 
 
 award by Tithe Commissioner, 399 
 
 actions against Tithe Commissioners, 401 
 
 action for treble value of, 403 
 
 expenses incident to apportionment of, 404
 
 052 INDEX. 
 
 TlTRES—contiimcd. 
 
 assessment of to poor-rate, 405 
 
 annexation of portion of, to district church, 405 
 
 jurisdiction of Commissioner of, 400 
 
 right of occupier of, to deduct curate's salary from rateable value of, 407, 408 
 
 assessment of occupier of, 409 
 
 TITLE-DEEDS, 
 
 largest purchaser entitled to, 478 
 
 TOP, 
 
 covenant not to lop or top trees, 109 
 rule as to tops of hedges, 136 
 
 TRADE TERMS, 
 
 parol evidence, admissible to explain, 481 
 
 TRAPS, 
 
 laying, for dogs, 389 
 
 TREES. 
 
 general property in, 109 
 
 exception of, in lease, 109 
 
 covenant not to lop or top, 109 
 
 right to, in churchyards, 113 
 
 cutting down ornamental trees by devisee in fee, 113 
 
 claim of right to enter a close and cut down, 113 
 
 cutting down trees in order to work quarries, 115 
 
 trustees cannot bring trover for trees felled, 115 
 
 lessor may bring trover for bark of trees cut, 115 
 
 interest of lessor and lessee in, 115 
 
 lessee's general property in trees not timber, 116 
 
 tenants in common of a tree, their rights, 116 
 
 rule as to property in, 117 
 
 definition of timber trees, 118 
 
 right of nurseryman to remove trees, 122 
 
 definition of waste as applied to, 122 
 
 covenant not to grub, 125 
 
 cutting down willow trees to the butt, 1 22 
 
 rule of standing trees, 127 
 
 stealing or injuring trees, 136 
 
 TRESPASS, 
 
 trespasser cutting timber by collusion with tenant, 115 
 
 aggravated trespass by landlord, measure of damages for, 127 
 
 maintainable after tender of rent due. 279 
 
 trespassers ab initio in the matter of a distress, 304 
 
 right to bring, 343 
 
 possessory right sufficient to maintain, 343 
 
 right of churchwardens and overseers to maintain, 343 
 
 plea of not guilty to, 344 
 
 for working an estray, 344 
 
 for breaking a dovecote, 344
 
 INDEX. 653 
 
 TRESPASS— contained. 
 
 possession, legal possession against trespassers, 345 
 
 maintainable by purchaser of growing crops, 317 
 
 on subsoil, 347 
 
 does not lie for entering a close to retake goods wrongfully brought there, 347 
 
 action by reversioner for, 348 
 
 de bonis asportatis by auctioneer, 348 
 
 plea of leave and licence in, 349 
 
 for horse-racing, 349 
 
 trespasser's right of action for injury, 349 
 
 against surveyor of highways, 351 
 
 for continuing building on land, 353 
 
 after notice, 353 
 
 certificate of costs in action for, 354 
 
 by breaking locks and chains, 357 
 
 construction of malicious trespass, 358 
 
 damages for, 359 
 
 no notice necessary to trespassers, 363 
 
 provisions against trespassers do not apply to fresh pursuit of game, 3G3 
 
 reversioner cannot apprehend trespasser. 3(33 
 
 law as to hunting trespass, 3G5 
 
 inciting friends to commit, ?,6Q 
 
 in defiance of notice, 366 
 
 no action lies for involuntary trespass, 367 
 
 by dog against master's will, 367 
 
 by shooting from highway, 370 
 
 right to apprehend trespasser, 371 
 
 for entering fishery, 375 
 
 conviction for trespass, 377 
 
 trespassing on land where game reserved to lord of the manor, 386 
 
 TRIAL, 
 
 of horse, what is reasonable, 574 
 
 TRUCK ACT, 207 
 
 TURBARY. 
 
 trespass does not lie for mere right of common of, 344 
 
 TURNIP SEED, 
 sale of, 487 
 
 warranty of Skirving's swedes, 488 
 contract to furnish, 507 
 contract for sale of, 536 
 
 TURNPIKES. 
 
 construction of " other thing " in Turnpike Roads Act, 107 
 exemptions from toll, 340, 341, 342 
 
 TURVES. 
 
 right to dig, an interest in land, 66 
 
 right to dig them a profit aprendre, 78 
 
 exclusive right to dig, gives right to bring trespass, 344
 
 G54 INDEX. 
 
 UXDEKGEOUXD. 
 
 right of owner of snrfnco to uiiilergronml strata, 81 
 
 CJNDEK-LESSEE, 
 
 power of, to distrain, 289 
 
 rNDEELETTING, 
 penalty for. 314 
 
 not excluded by words " use and occupation," 449 
 covenant not to underlet, 453 
 
 UXDEEWOOD, 
 
 sale of growing, an interest in land, HO 
 meaning of "woods and underwoods," 109 
 larch not saleable underwoods, 119 
 rating of saleable underwoods, 119 
 
 injunction granted against tenant for life cutting underwood of insufficient 
 growth, 121 
 
 UNITY OF OWNERSHIP, 
 
 destroys prescriptive right, 76 
 destroys obligation to repair fences, 135 
 
 UNITY OF POSSESSION. 
 
 suspends title by prescription, 7G 
 
 defeats easement, 83 
 
 effect of, on way of necessity, 88 
 
 UNSOUNDNESS, 
 
 positive proof of, when necessary, 5G3 
 
 what constitutes, 564 
 
 permanent cough, 568 
 
 roaring, 568 
 
 stringhalt, 569 
 
 laminitis, 569 
 
 contraction of hoof, 569 
 
 navicular joint -disease, 569 
 
 chest-foundered, 570 
 
 cataract, 570 
 
 affection of nerves in lumbar region, 570 
 
 badness of shape not, 570 
 
 curby-hocks, 570 
 
 thin soles, 571 
 
 splint, 571 
 
 purchaser's duty to return unsound horse, 593 
 
 purchaser's duty when warranted horse proves unsound, 595 
 
 USE AND OCCUPATION, 
 action for, 445 
 
 implied agreement to pay for, 446 
 when it will lie. 446 
 
 may lie where action for rent not maintainable, 446 
 will not lie when title in dispute, 446 
 docs not include underletting. 449
 
 INDEX. G5i 
 
 USER. 
 
 plea of 40 years', 82 
 
 immemorial right of way not lost by non-user, Sfi 
 
 presumption of abandonment not to be made from mere non-user, 86 
 
 proof of user of right of common of pasture, 84 
 
 of way for agricultural puposes, 91 
 
 VALUATION, 
 
 of tillages, 332 
 
 what stamp sufficient for, 332 
 
 fair valuation or consuming price, 334 
 
 of rent-charge, 394 
 
 agreement, 465 
 
 agreement to bring value of straw back in manure, 335 
 
 meaning of " value of straw," 336 
 
 right of outgoing tenant for onstand for manure sold at a valuation, 339 
 
 VALUER, 
 
 of ecclesiastical property, amount of knowledge required in, 333 
 
 duties of, 333 
 
 disqualification of, by interest, 404 
 
 VEGETABLES, 
 
 agreement for sale of, an interest in land, 54 
 
 VENDEE, 
 
 right of way of, to lands purchased, 90 
 
 refusal of, to complete purchase for want of way to land purchased, 90 
 
 right of, to insist on vendor's personal receipt of money, 475 
 
 right of, to recover preliminary expenses, 475 
 
 VENDOR, 
 
 annexation by, of rights connected with land, 87 
 
 right of, to rescind contract, 474 
 
 right of vendee to insist on vendor's personal receipt of money, 475 
 
 right of vendor, to recover preliminary expenses, 475 
 
 refusal of, to show in bulk, 482 
 
 cannot recover price of part of contract, 491 
 
 rights of, in public market, 518 
 
 liable for false representation of lease, 538 
 
 VETERINARY 
 
 surgeon liable for negligence of his servant, 213 
 warranty by veterinary surgeon as agent, 557 
 livery-stable keeper no lien for veterinary charges, 576 
 claim by veterinary surgeon, 579 
 
 WAGES, 
 
 forfeiture of, by misconduct, 200 
 presumptive evidence of payment of, 1 99 
 claim for, during temporary illness, 199 
 
 WAIVER, 
 
 filling up bond by purchaser before payment no waiver of title, 124
 
 656 INDEX. 
 
 WAT^RAXTY, 
 
 by skilled person that he possesses skill requisite to perform the task which 
 
 he undertakes, 203 
 sale of seed not corresponding with, 480 
 notice necessary that article does not correspond with, 487 
 application of Statute of Limitations in such cases, 487 
 of Skirving's swedes, 488 
 
 seed wheat, 488 
 
 sound meat, 489 
 
 seed barley, 514 
 
 seed, 526 
 where not implied, 527 
 not implied, that meat fit for food, 528 
 of soundness in horse, 542 
 
 distinction between warranty and representation, 542 
 " this horse is sound," a warranty, 542 
 general rule as to, 543 
 of horse being clever hack, 544 
 unauthorised warranty by servant, 545 
 
 horse warranted 6 years old, but actually 12, may be returned, 551 
 private warranty incorporated into conditions of sale, 551 
 written warranty, 552 
 general rule as to, 553 
 by servant of horse-dealer, 554 
 by stranger, 555 
 
 by servant, merely entrusted to deliver, 555 
 rule of master taking back horse which will not stand to warranty given by 
 
 servant, 556 
 by veterinary surgeon as agent, 557 
 plea of breach of warranty, 558 
 stamp on warranty, 558 
 that horse " sound and quiet in harness," 561 
 
 " good drawer," 561 
 when continuing, 563 
 
 recovery of keep when warranty broken, 593 
 purchaser's duty when warranted horse proves unsound, 595 
 
 WAEREN, 
 
 breaking up rabbit warren, when not waste at common law, 310 
 penalty for taking rabbits by night in, 373 
 franchise of free warren, 384 
 
 WATER, 
 
 right of way of passage of, 70 
 licence to divert, 73 
 claim to spring of, 74 
 right to use running, 77 
 right to take from well, 78 
 right to take pot water, 78 
 right to water cattle, 78
 
 INDEX. 657 
 
 WAT'El'R—co7iti7itied. 
 
 discharging eaves' water on reversioner's land, 107 
 
 right of fishing passes by grant of, 170 
 
 right of riparian owners to, 171 
 
 flowing in a stream is puhlici juris, 172 
 
 appropriation of running water, 173 
 
 right to water not in a flowing stream, 174 
 
 law of right to a spring of water, 175 
 
 law as to flowing water, 176 
 
 abstraction of subterranean water, 177 
 
 law as to artificial water courses, 180 
 
 flow of water from and into collieries, 180 
 
 right of polluting water, subject of grant, 181 
 
 presumptive right to pollute, 180 
 
 difference between drain and water-course, 182 
 
 flow of, fi'om drain for agricultural improvements, 183 
 
 right to artificial water-course, 181 
 
 rights as to rain water, 185 
 
 surface water, 186 
 
 diversion of, for irrigation, 189 
 
 escaping from railway cuttings into mine, 196 
 
 working mines under water-course, 196 
 
 supplying horses with, from public fountain, 197 
 
 compensation to tenant for life for loss of, 198. 
 
 WASTE, 
 
 action of, for felling timber, 110 
 
 right of tenant for life to sell severed timber without impeachment of, 111 
 
 permissive, by tenant for life, 112 
 
 when action for, will not lie by one tenant in common against another, 116 
 
 acts of, 307 
 
 by ploughing up ancient meadow, 308 
 
 by breaking up rabbit warren, 310 
 
 right of lessor to sue for, 309 
 
 right of reversioner to prevent, 309 
 
 by ploughing up pasture, 312 
 
 by sowing noxious plants, 313 
 
 overcropping not, 315 
 
 inclosure of, by churchwardens and overseers, 343 
 
 encroachments by tenants on, presumably for benefit of landlord, 346 
 
 claim to waste land, by lord of manor, 346 
 
 dilapidations of buildings built on, 431 
 
 property in waste laud adjoining road, 143 
 
 WAY, 
 
 right of, definition of, 70 
 
 plea of 40 years' user of, 82 
 
 continuous enjoyment of right of, 83 
 
 plea of one year's enjoyment of way under stat. 2 & 3 Will. IV., c. 71, s. 2, 84 
 
 immemorial right of way not lost by non-user, 86
 
 658 INDEX. 
 
 WAY — contin ucd. 
 
 presumption of abandonment not to be made from non-user, 86 
 
 parol agreement for substitution of new way no evidence of abandonment, 87 
 
 of necessity, 87 
 
 cannot be pleaded without showing its character, 88 
 
 effect of unity of possession of, 88 
 
 law as to, 88 
 definition of, 88 
 
 limited by necessity which created it, 89 
 arises from presumed grant, 89 
 
 right of, can only arise by grant, 90 
 limited dedication of way to the public, 91 
 valid dedication of. to the public, how made, 91 
 right of, for agricultural purposes, 91 
 
 to cart away timber, 92 
 prescriptive right of, for carriages, 92 
 claim of, for cattle and carts, how proved, 93 
 plea of right of, for horses, waggons, &c., 93 
 right of, for farming purposes does not include all purposes, 93 
 
 for tithes, 93 
 
 grantee of an occupation way, 93 
 obstruction of public footway, 94 
 distinction between private and public way, 103 
 presumption of property in private way, 103 
 right of, appurtenant to plot, 104 
 implied grant of way of necessity, 104 
 
 power of Inclosure Commissioners to set out private road, 105 
 appropriation of private way, 105 
 right of way under deed of partition, 105 
 dedication of private road to public, 106 
 selling one part of settled estate to pay for making roads through another part, 
 
 106 
 excavation near footway, 350 
 reasonable use of right of way, 357 
 
 WEIGHTS AND MEASURES 
 in different markets, 521 
 abolition of local measures, 522 
 sale by the hobbett, 522 
 
 WELL, 
 
 right to take water from, 78 
 
 claim to spring of water, 74 
 
 right to take water from a well not a profit a jJi'endre, 79 
 
 law of right to a spring, 175 
 
 right to sink wells, 177 
 
 right to cut off spring at source, 179 
 
 aVjstraction of subterranean water by sinking well, 177 
 
 WILD-FOWL, 
 
 penalty for shooting, near decoy, 385
 
 INDEX. 659 
 
 WINCHESTER BUSHEL 
 an illegal measiire, 521 
 
 WINDOWS, 
 
 stopping \\\),2)rlmd faeie abandonment, 77 
 
 obstmction of ancient, 77 
 
 prescriptive right to light for, 96 
 
 twenty years' enjoyment of light, 97 
 
 ancient lights may be altered, not enlarged, 97 
 
 new lights not corresponding with old, 98 
 
 WOODS, 
 
 meaning of, 109 
 rating of, 119 
 
 WOODWARDS, 
 
 their right to grant licences to free miners, 80 
 
 WORRYING 
 
 of sheep by dogs, 157, 158 
 
 THE END. 
 
 BRADBURY, AONEW, & CO., PKINIEM, WUJTEl^IllARii.
 
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 candidate, agent, or in any other capacity, to become possessed of this manual." 
 
 BANKING. — "Walker's Treatise on Banking Law. In- 
 cluding the Crossed Checks Act, 1876, with dissertations thereon, also 
 references to some American Cases, and full Index. By J. DOUGLAS 
 WALKER, Esq. , Barrister-at-Law. Demy 8vo. 1877. 14s. 
 
 "The work has been carefully written, and will supply the want of a compact sum- 
 mary of Banking Law." — Solicitors' Journal. 
 
 '• Persons who are interested in banking law may be guided out of many a difficulty 
 by consulting Mr. Walker's volume." — Law Times. 
 
 BANKRUPTCY.— Bedford's Final Examination Guide 
 to Bankraptcy.—Third Edition. 12mo. 1877. 6s. 
 
 Haynes. — Vide "Leading Cases." 
 
 Lynch's Tabular Analysis of Proceedings in 
 
 Bankruptcy, for the use of Students for the Incorporated Law 
 
 Society's Examinations. Second Edition. 8vo. 1874. Net, Is. 
 
 Scott's Costs in Bankruptcy. — Ficfe" Costs." 
 
 Smith's Manual of Bankruptcy. — A Manual relating 
 
 to Bankruptcy, Insolvency, and Imprisonment for Debt ; comprising 
 
 the New Statute Law verbatim, in a consolidated and readable form. 
 
 With the Rules, a Copious Index, and a Supplement of Decisions. 
 
 By JOSIAHW. SMITH, B.C.L., Q.C. 12mo. 1873. 10s. 
 
 *,* The Supplement may be had separately, net, 2s. 6d. 
 
 Williams' Law and Practice in Bankruptcy; 
 
 comprising the Bankruptcy Act, the Debtors Act, and the Bankruptcy 
 
 Repeal and Insolvent Court Act of 1869, and the Rules and Forms 
 
 made under those Acts. Second Edition. By ROLAND VAUGHAN 
 
 WILLIAMS, of Lincoln's Inn, Esq. , and WALTER VAUGHAN 
 
 WILLIAMS, of the Inner Temple, Esq., assisted by Feancis 
 
 Hallett Haedcastle, of the Inner Temple, Esq., Barristers-at- 
 
 Law. 8vo. 1876. 11. 8s. 
 
 " ' Williams on Bankruptcy' is quite satisfactory."— Xaj« Magazine. 
 
 • ' It would be difficult to speak in terms of undue praise of the present work." 
 
 *. * All standard Laio Works are Jcept in Stock, in law calf and other bindings. 
 
 A 2
 
 .1 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 BAR, GUIDE TO THE.— Shearwood. — Firfe " Examination Guides." 
 
 BILLS OF EXCHANGE.— Chalniers' Digest of the Law 
 
 of Bills of Excliange, Promissory Notes, and 
 
 Clieques. By M. D. CHALMERS, of the Inner Temple, Esq. 
 
 Barrister-at-Law. Demy Svo. 1878. 12s. 6c?. 
 
 •»*This work is in tlie form of the Indian Codes, besides the English Cases it is noted 
 up with reference to the Frencli Law and the German Code, and on doubtful points to 
 the more recent .-Iniericau Decisions ; it also contains a table of overruled or doubted cases. 
 
 "Mr. Chalmers has doao wisely in cistiucr his book into its present form, and tho 
 plan, tliiis well conceived, has been most eifectually carried out. As a handy book of 
 refer'once on a difficult and important branch of the law, it is most valuable, and it is 
 perfectly plain that no pains have been spared to render it complete in every respect. 
 The index is copious and well arranged." — Saturday Ri'vieir. 
 
 " The book is not only well jilauned, but well executed for the risinpr genera- 
 tions and formeu of business this digest will be a gift of no small value." —Pall Mai 
 Gazette. 
 
 Chitty on Bills of Exchange and Promissory 
 Notes, -with references to the law of Scotland, 
 Fraiice and Annerica. — Eleventh Edition. By JOHN A. 
 KUSSELL,Esq.,LL.B., one of Her Majesty's Counsel, and Judge 
 of County Courts. Demy Svo. 1878. V. 8s. 
 
 Eddis' Rule of Ex parte Waring. By A. C. EDDIS, 
 B.A., of Lincoln's Inn, Barrister-at-Law. Post Svo. 1876. Net,2s,Qd. 
 BILLS OF SALE — Cavanagh.— T7f?e " Money Securities." 
 
 Millar's Bills of Sale. — A Treatise on Bills of Sale, with an 
 
 Appendix contamin^ the Acts for the Registration of Bills of Sale 
 
 Precedents, &c. (being the Fourth Edition of Millar and Collier's 
 
 Treatise on Bills of Sale). By E. C. J. MILLAR, of the Inner 
 
 Temple, Esq., Barrister-at-Law. 12mo. 1877. 12s 
 
 " The original work is brought down to date, and the latest cases are referred to and 
 
 considered. Tho value of the work is enhanced throughout by careful annotation." 
 
 — Law Magazine. 
 
 BOOK-KEEPING.— Bedford's Intermediate Exannina- 
 tion Guide to Book-keeping. — Second Edition. 12mo. 
 1875. Net, 2s. Qd. 
 
 CANAL TRAFFIC ACT.— Lely's Rail>Aray and Canal Traf- 
 fic Act, 1873. — And other Railway and Canal Statutes ; with 
 the General Orders, Forms, and Table of Fees. Post Svo. 1873. 8*. 
 
 CARRIERS. — Browne on Carriers.— A Treatise on the Law of 
 Carriers of Goods and Passengers by Land and Water. With 
 References to the mo.st recent American Decisions. By J. H. 
 BALFOUR BROWNE, of the I\liddle Temple, Esq., Barrister-at- 
 Law, Registrar to the Railway Commission. Svo, 1873. ISs. 
 
 CHANCERY, and Vide " EQUITY.'' 
 
 Daniell's Chancery Practice. — Sixth Edition, by 
 LEONARD FIELD and EDWARD CLENNELL DUNN, 
 Barristers-at-Law; assisted by W. H. UPJOHN, Student and 
 Holt Scholar cf Gray's Inn, &c., &c., Editor of " Daniell's Forms, 
 Third Edition." 2 vols. Svo. (In i>rcparatton.) 
 
 Daniell's Forms and Precedents of Proceed- 
 ings in the Chancery Division of the High 
 Court of Justice and on Appeal therefrom; 
 with Di.ssertations and Notes, forming a complete guide to the prac- 
 tice of the Chancery Division of the High Court and of the Courts 
 of Appeal. Being the Third Edition of "Daniell's Chancery Forms." 
 By WILLIAM HENRY UPJOHN, Esq., Student and Holt 
 Scholar of Gray's Inn, Exhibitioner in .lurisprudence and Roman 
 * ^* All. atandurJ. Law Works are kept in Stock, in law calf and other bindings.
 
 119, CHANCEBY LANE, LONDON, W.G. 5 
 
 CHANCERY. -Continued. 
 
 Law in the University of London, Holder of the First Senior Stu- 
 dentship in Jurisprudence, Roman Law and International Law 
 awarded by the Council of Legal Education in Hilary Term, 1879. 
 In one thick vol. Demy 8vo. 1879. 21. 2s. 
 
 " Mr. Ujijolm has restored tlie volume of Chancery Forms to the place it held before 
 the recent changes, as a trustworthy and comijletc collection of precedents. It has 
 all the old merits ; nothing is omitted as too trivial or commonjilacc ; the solicitor's 
 clerk finds how to indorse a brief, and how, when necessary, to give notice of action ; 
 and the index to the forms is full and perspicuous."— Solicitors' Journal. 
 
 " It will be as useful a work to practitioners at Westminster as it will be to those in 
 Lincoln's Inn." — Law Times. 
 
 Haynes' Chancery Practice. — The Practice of 
 
 the Chancery Division of the High Court of 
 
 Justice and oii Appeal therefronn, for the use 
 
 of Practitioners and Students. — By JOHN F. 
 
 HAYNES, LL.D. Author of the " Student's Leading Cases," &c. 
 
 Demy Svo. 1879. 1^. 5s. 
 
 "Materials for enabling the practitioner himself to obtain the information he may 
 
 require are placed before him in a convenient and accessible foim. The arrangement of 
 
 Hie work appears t> be good." — Laro Magazine and Review, February, 1880. 
 
 Morgan's Chancery Acts and Orders. — The Statutes, 
 General Orders, and Rules of Court relating to the Practice, 
 Pleading, and Jurisdiction of the Supreme Court of Judicature, 
 particularly with reference to the Chancery Division, and the 
 Actions assigned thereto. With copious Notes. Fifth Edition. 
 Carefully revised and adapted to the new Practice by GEORGE 
 OSBORNE MORGAN, M.P., one of Her Majesty's Counsel, and 
 CHALONER W. CHUTE, of Lincoln's Inn. Barrister- at-Law, and 
 late Fellow of Magdalen College, Oxford. Demy Svo. 1876. 1^.105. 
 "This edition of Mr. Morgan's treatise must, we believe, be the most popular with the 
 profession." — Lewi Times. 
 
 Morgan and Davey's Chancery Costs. — Vide"Costs." 
 
 Peel's Chancery Actions. — A Concise Treatise 
 
 on the Practice and Procedure in Chancery 
 
 Actions.— By SYDNEY PEEL, of the Middle Temple, Esq., 
 
 Barrister- at-Law. Demy 8vo. 1878. 7s. 6d. 
 
 "To Chancery practitioners of both branches the volume will doubtless prove very 
 
 useful." — Law Times. 
 
 CHANCERY PALATINE OF LANCASTER.— Snow and V/in- 
 staiiley's Chancery Practice. — The Statutes, Consoli- 
 dated and General Orders and Rules of Cotu't relating to the Practice, 
 Pleading and Jurisdiction of the Court of Chancery, of the County 
 Palatine of Lancaster. With Copious Notes of all practice cases to 
 the end of the year 1879, Time Table and Tables of Costs and Forms. 
 By THOMAS SNOW, M.A., and HERBERT WINSTANLEY, 
 Esqrs., Barristers-at-Law. Royal 8vo. 1880. [Nearhi ready.) 
 
 CIVIL LAW. — Bo^A^yer's Commentaries on the Modern 
 Civil Law.— By Sir GEORGE BOWYER, D.C.L., Royal 
 Svo. 1848. 18s. 
 
 Bowyer's Introduction to the Study and Use 
 of the Civil Law.— By Sir GEOBGE BOWYER, D.C.L. 
 Royal Svo. 1874. 5s. 
 
 Cumin's Manual of Civil Law, containing a Translation 
 of, and Commentary on, the Fragments of the XII. Tables, and 
 the Institutes of Justinian ; the Text of the Institutes of Gains and 
 Justinian arranged in parallel columns ; and the Text of the Frag- 
 ments of Ulpian, &c. By P. CUMIN, M.A., Barrister-at-Law. 
 Second Edition. Medium Svo. 1865. _ 18s. 
 
 *»* A II standard Law Worlds are kept in Stock, in law calf and other Undings,
 
 6 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 CIVIL LAYt -Continued. 
 
 Voet Conimentarius ad Pandectas, Translated 
 into English.— Part I. The Contract of Sale. (Book xviii.) 
 By SIR KOLAND KNYVET WILSON, Bart., of Lincoln's Inn, 
 Barrister-at-Law. Royal Svo. 1876. Net 11 Is. 
 
 COLLISIONS.— Lowndes' Admiralty Lav^ of Collisions 
 at Sea.— 8vo. 1867. 7s. ed. 
 
 Marsden on Maritime Collisioii.— A Treatise on the 
 Law relating to Collisions between Ships, Compulsory Pilotage, and 
 the Rnle of the Road at Sea. With a Summary of English and 
 American Decisions thereon, references to Foreign Law, and an 
 Appendix containing the International Regulations (of 1863 and 1880) 
 for preventing Collisions at Sea ; the Thames, Mersey, and other local 
 Rules of Na^•i■4ation ; and Extracts from the Merchant Shipping 
 Acts. By REGINALD G. MARSDEN, Esq., Barrister-at-Law. 
 
 (In the jjress.) 
 
 COLONIAL LAW. —Clark's Colonial Law.— A Summary of 
 Colonial Law and Practice of Appeals from the Plantations. Svo. 
 1S34. 1^- 4s. 
 
 COMMENTARIES ON THE LAWS OF ENGLAND.— Bedford.— 
 Vide "Examination Guides." 
 Broom and Hadley's Conimentaries on the 
 Laws of England.— By HERBERT BROOM, LL.I)., of 
 the Inner Temple, Barrister-at-Law ; and EDWARD A. HAD- 
 LEY, M.A., of Lincoln's Inn, Barrister-at-Law ; late Fellow of 
 Trinity CoU., Cambridge. 4 vols. Svo. 1869. SI. 2s. 
 
 " Messrs. Broom and Hadley bave been unsparing iu their editorial labours. There 
 
 are abundant reference notes, so that the diligent student can consult the authorities 
 
 if he is so disposed. Nothing that could be done to make the work useful and handy 
 
 has been left undone. "—iaw Journal. 
 
 Dickson's Analysis of Blackstone's Coi-nnien- 
 taries.— In Charts for the use of Students. By FRP^DEUICK 
 S. DICKSON. 4to. lO.s. Qd. 
 
 COMMERCIAL LAW.— Levi.— F/r?c " International Lav/." 
 COMMON LAW,— Archbold's Practice of the Queen's 
 Bench, Comnion Pleas and Exchequer Divi- 
 sions of the High Court of Ji.istice in Actions, 
 etc., in which they have a common jurisdic- 
 tion.— Thirteenth Edition. By SAMUEL PRENTICE, Esq., 
 one of Her Majesty's Counsel. 2 vols. Demy Svo. 1879. 3/. 3s. 
 Archibald. — Vide "Judges' Chambers Practice." 
 Chitty. — Vide "Forms." Foulkes. — Vide "Action." 
 
 Fisher. — FuZc " Digests." Prentice. — Vide "Action." 
 Smith's Manual of Common Law. — For Practitioners 
 and Students. A Manual of Common Law, comprising the funda- 
 mental principles and the points most usually occurring in daily 
 life and practice. By JOSIAH W. SMITH, B.C.L., Q.C. 
 Eighth Edition. 12mo. 1878. 14s. 
 
 COMMONS AND INCLOSURES.— Chambers' Digest of the 
 Law relating to Conimons and Open Spaces, 
 including Public Parl<s and Recreation (Grounds, with various official 
 documents ; precedents of by-laws and regulations. The Statutes in 
 full and brief notes of leading cases. By GEORGE F. CHAM- 
 BERS, of the Inner Temple, Esq., Barrister-at-Law, Imperial 
 Svo. 1877. 6s. &d. 
 
 Cooke on Inclosures.— With Forms as settled by the 
 Inclosure Commissioners. By G. WINGROVE COOKE, Esq., 
 Barrister-at-Law. Fourth Edition. 12mo. 1864. 16s, 
 
 ♦fc* All standard Law Worlcs are kept in Stock, in law calf and other lindings.
 
 119, CHANCERY LANE, LONDON, W.C. 
 
 COMPANY LAW.— Finlason's Report of the Case of 
 Twycross v. Grant. 8vo. 1877. Net,2s. 6d. 
 
 Palmer. — Vide " Conveyancing." 
 
 Palmer's Shareholders' and Directors' Com- 
 panion. — A Manual of every-day Law and Practice for Pro- 
 moters, Shareholders, Directoi-s, Secretaries, Creditors and Solicitors 
 of Companies, under the Companies' Acts, 18G2, 1SG7, and 1877. 
 Second Edition. By FEANC^IS B. PALMER, Esq., Barrister-at- 
 Law, Author of "Company Precedents." 12mo. 1880. Net, 2s. 6d. 
 Thring.— Fz'rfe "Joint Stocks." 
 CONTINGENT REMAINDERS.— An Epitome of Fearne on 
 Contingent Remainders and Executory De- 
 vises. Intended for the Use of Students. By W. M. C. Post 
 8vo. 1878. 6s. 6d. 
 
 "An acqu.ain(auce with Fearne is indispensable to a student who desires to he 
 thoroughly grounded in the common law relating to real property. Such student will 
 find a perusal of this epitome of great value to him." — Law Journal. 
 
 CONSTITUTIONAL LAW.— BoAA^yer's Cominentaries on 
 the Constitutional Law of England. — By Sir 
 GEO. BOWYER, D.C.L. Second Edition. Pioyal 8vo. 1846. 11. 2s. 
 Haynes. — Vide "Leading Cases." 
 
 CONTRACTS. — Addison on Contracts. — Being a Treatise on 
 the Law of Contracts. By C. G-. ADDISON, Esq., Author of 
 the " Law of Torts." Seventh Edition. By L. W. CAVE, Esq., one 
 of Her Majesty's Counsel, Recorder of Lincoln. Royal 8vo. 
 1875. 11. 18s. 
 
 "At present this is by far the best book upon the La%7 of Contract possessed by the 
 
 Profession, and it is a tlioroughly practical book." — Law Times, 
 
 Leake on Contracts. — An Elementary Digest of the Law 
 
 of Contracts (being a new edition of "The Elements of the Law of 
 
 Contracts"). By STEPHEN MARTIN LEAKE, Barrister-at- 
 
 Law. 1 vol. Demy Svo. 1878, 11. 18s. 
 
 Pollock's Principles of Contract at Law and in 
 
 Equity ; being a Treatise on the General Principles relating to the 
 
 Validity of Agreements, with a special view to the comparison of 
 
 Law and Equity, and with references to the Indian Contract Act, 
 
 and occasionally to American and Foreign Law. Second Edition. 
 
 By FREDERICK POLLOCK, of Lincoln's Inn, Esq.. Barrister-at- 
 
 Law. Demy 8vo. 1878. 1?. 6s. 
 
 The Lord Chief Justice in his judgment in Metropolitan Raihtay Comparty v. Brog- 
 
 den and ot/iers, said, "The Law is well put by Mr. Frederick Pollock in his 
 
 very able and learned work on Contracts."— 77ie Times. 
 
 "For the purposes of the student there is no book equal to Mr. Pollock's." — The 
 
 Economist. 
 
 " He has succeeded in writing a book on Contracts which the working lawyer will find 
 as useful for reference as any of its predecessors, and which at the same time will giye 
 the siudent what he will seek for in vain elsewhere, a complete rationale of the law, — 
 Law Magazine and Review. 
 
 " We see nothing to qualify in the praise we bestowed on the first edition. The chapters 
 on unlawful and impossible agreements are models of full and clear treatment."— iSWicito)*' 
 Journal. 
 
 Smith's La^AT of Contracts.— By the late J. W.SMITH, 
 Esq., Author of " Leading Cases," &c. Seventh Edition. By 
 VINCENT T. THOMPSON, Esq., Barrister-at-Law. Demy 8vo. 
 
 1878. 1^. Is. 
 
 " We know of few books equally likely to benefit the student, or marked by such dis- 
 tinguished qualities ol lucidity, order, and accuracy as tlie work before us." — Solicitors' 
 Jovrnal, December 28, 1878. 
 
 *^* All standard Law Works are kept in Stock, in law calf and other bindings.
 
 8 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 CONVICTIONS.— Paley's Law and Practice of Sum- 
 mary Convictions under the Summary Juris- 
 diction Acts, 1848 and 1879; iududiug Proceeding.s 
 prdiminary and subsenueiit to Cdnvictimis, and the responsibility 
 uf convicting ^^agistl■atl■s and their OHicers, with Forms. Sixth 
 Edition. By W. II. MACNAMAKA, Esq., Barrister at- Law. 
 Demy 8vo. 1879. 1'. 4.s. 
 
 Stone. — Vide " Petty Sessions." 
 Teinpler. — Vide " Snmmary Convictions." 
 Wigrain. — Vide "Justice of the Peace." 
 CONVEYANCING.— Dart.— r/Je "Vendors and Purchasers." 
 
 Greenwood's Manual of Convey ancing.—AManual 
 
 of the Practice of Conveyancing, show-ing the present Practice 
 
 relating to the daily routine of Conveyancing in Solicitors' Offices. 
 
 To winch are added Concise Common Forms and Precedents in 
 
 Conveyancing ; Conditions of Sale, Conveyances, and all other 
 
 Assurances in constant use. Fifth Edition. By H. N.'CAPEL, 
 
 B.A., LL.B., Solidtor. Demy 8vo. 1877. ISs. 
 
 " A careiul study of these p.-iges would probably arm a diligent clerk with as much 
 
 useful kncwledce as he might otherwise take years of desultory questioning and observing 
 
 to acquire."— So/ici7("i' /o'/maZ. 
 
 The young solicitor will find this work almost invaluable, while the members of the 
 higher branch of the profession may refer to it with advantage. We have not met with 
 any book that furnishes so simple a guide to the management of business entrusted to 
 articled clerk.i." 
 
 Haynes. — Vide " Leading Cases." 
 
 Martin's Student's Conveyancer. — A Manual on the 
 Principles of ]\Iodern Conveyancing, illustrated and enforced by a 
 Collection of Precedents, accompanied by detailed Kemarks. Part I. 
 Purchase Deeds. By THOMAS FUEDERIC MARTIN, Solidtor. 
 Demy 8vo. 1877. 5s. 6d. 
 
 " It should be placed in the hands of every student." 
 
 Palmer's Company Precedents. — Conveyancing and 
 
 other Forms and I'recedents relating to Companies' incorporated 
 
 under the Companies' Acts, 1862 .and 1867. Ai-ranged as follows^ : — 
 
 Agreements, Memoranda of Association, Articles of Association, 
 
 Kesolutions, Notices, Certificates, Provisional Orders of Board of 
 
 Trade, Debentures, Peconstruction, Amalgamation, Petitions, Orders. 
 
 With Copious Notes. By FRANCIS BEAUFORT PALMER, of 
 
 the Inner Temple, Esq., Barrister-at-Law. Demy 8vo. 1877. 1/. 5s. 
 
 " There had never, to our knowledge, been any attempt to cnlltct and edit a body of 
 
 Forms and Precedents exclusively relating to the foi-raation, working and wmding-up of 
 
 companies. This task Mr. Palmer has taken in hand, and we are giad to say with much 
 
 huccess .... The information contained in the 6511 pages iif the volume is renderwl 
 
 easily ac'cesflible by a good and full in^ex. Tne author has evidently not been sparing of 
 
 lalx)ur, and ihe fruits of his exertions are now before the legal profet.siuu in a work of great 
 
 practical utility." — l-aw Magazine. 
 
 "To those concerned in getting up companies, the assistance given by Mr. Palmer 
 must be very valuable, because he does not confine himself to bare precedents, but by 
 intelligent and learuv;d commentary lights up, as it were, each step tliat he takes. The 
 volume beforeus i.s 1 ct, therefore a book of i)receilents merely, but, in a greater or less 
 degree, a treatise on certain portions of the Companies' Acts of isti'i and 1867. There is an 
 elaborate index, and the work is one which must commend itself to the profession." — 
 Law Tiiiiis. 
 
 "The precedents a>-e a.s a rule exceedingly well drafted, and adapted to companies for 
 almo.st every conceivable object. So especially are the forms of memoranda and articles 
 o I association ; and these will be found extremely serviceable to the conveyancer. . . . 
 All the notes have been elabonated with a thoroughly scientific knowledge of the 
 principles of company law, as well as with copious references to the cases substantiating 
 the principles. . . We venture to predict that his not(s will be found of great utility 
 iu guiding opinions on many complicated questions of law and practice." -Laic Journal. 
 
 ** AH standard Law Works are Iccpt in Stud; in Imocalf and other UikVuujs.
 
 119, CHANCEEY LANE, LONDON, W.C. 
 
 CONVEYANCING -Continued. 
 
 Prideaux's Precedents in Conveyancing. With 
 
 Dissertations on its Law and Practice. Ninth Edition By 
 
 FREDERICK PRIDEAUX, late Prof essor of the Law of Real and 
 
 Personal Property to the Inns of Court, and .JOHN WHITCOMBE, 
 
 Esqrs.,Barristers-at-Law. 2 vols. Royal 8vo. 1879. 3?. 10s.' 
 
 " Wo liave been always accustomed to view 'Prideaux' as the most useful work 
 
 out on conveyancing. It combines conciseness and clearness in its precedents 
 
 witli aptness and ccjuiprehensiveness in its dissertations and notes, to a degree superior 
 
 to toat of any other work of its kind."— Z,a!<i Jonrnal, February 8, 1870. 
 
 "i'rideaux tias become an indispensable part of the Couvevancer's library 
 
 The new edition has been edited with a care and accuracy o'f which we can hardly'speak 
 
 too highly The caie and completeness with which the dissertation has 
 
 been revised leaves us hardly any room lor criticism."— So/jcito/-*' Journal. 
 
 "Tae volumes are now somethius; more than a mere collection of precedents; they 
 contain most valuable dissertations on the law and practice with reference to conveyancing 
 These dissertations are followed by the precedents on each subject dealt with, and are in 
 theraseWescondensedtreatises.embodyiugall the latest case and statute law .'. . Havin" 
 regard to the wide general knowledge required of all lawyers in the present day such a 
 work as this must prove highly acceptable to the whole Profession."— £ai(j Times! 
 
 COPYRIG+HT.-Phillips' Law of Copyright.— The Law of 
 Copyright in Works of Literature and Art, and in the Appli- 
 cation of Designs. With the Statutes relating thereto. By 
 CHARLES PALMER PHILLIPS, of Lincoln's Inn, Esq., 
 Barnster-at-Law. 8vo. 1863. 12s. 
 
 CORONERS.— Jervis on the Office and Duties of 
 Coroners. — With Forms and Precedents. Fourth Edition. 
 
 {In preparation.) 
 
 COSTS.— Morgan and Davey's Treatise on Costs in 
 Chancery.— By GEORGE OSBORNE MORGAN, M.P., 
 one of Her Majesty's Counsel, late Stowell Fellow of University 
 College, Oxford, and Eldon Scholar ; and HORACE DAVEY 
 M.A., one of Her Majesty's Counsel, late FeUow of University 
 College, Oxford, and Eldon Scholar. With an Appendix, containing 
 Forms and Precedents of Bills of Costs. 8vo. 1865. 1^. Is'. 
 
 Scott's Costs in the High Court of Justice 
 and other Courts. Fourth Edition. By JOHN SCOTT, 
 of the Inner Temple, Esq., Barrister-at-Law, Reporter of the Com- 
 mon Pleas Division. Demy 8vo. 1880. \l, gg, 
 "Mr. Scott's introductory notes are very useful, and the work is now a compendium 
 
 on the law and practice regarding costs, as well as a bock of precedents "—Law Times 
 
 January 3, 18S0 ' 
 
 Scott's Costs in Bankruptcy and Liquidation 
 under the Bankruptcy Act, 1869. Royal 12mo. 
 1873. net 3s. 
 
 Summerhays and Toogood's Precedents of 
 Bills of Costs in the Chancery, Queen's 
 Bench, Common Pleas, Exchequer, Probate 
 and Divorce Divisions of the High Court of 
 Justice, in Conveyancing, Bankruptcy, the Crown Office, Lunacy, 
 Arbitration under the Lands Clauses Consolidation Act, the Mayor's 
 Court, London ; the County Courts, the Privy C!ouncil, and on 
 Passing Residuary and Succession Accounts ; with Scales of Allow- 
 ances and Court Fees, the Law Society's Scale of Commission in 
 Conveyancing ; Forms of Affidavits of Increase, and Objections to 
 Taxation. By Wm. FRANK SUMMERHAYS, Solicitor, and 
 THORNTON TOOGOOD. Third Edition, Enlarged. Royal 8vo 
 1879. H. 1^; 
 
 " lu the volume before us we have a very complete manual of taxation. The work is 
 
 beautifully printed and arranged, and each item catches the eye instantly."— /«!« 
 
 Journal. 
 
 *:f* All Standard Law Worhs are Jcept in StocJc, in laiv calf and other bindings. 
 
 3 A
 
 10 STEVENS AND SONS' LAW PUBLICATIONS, 
 
 COSTS.— Conitnuerf. 
 
 Webster's Parliamentary Costs. — Private Bills 
 Election Petitions, Appeals, House of Lords. By EDWARD 
 WEBSTER, Esq., of tbc Taxing and Examiners' Office. Third 
 Edition. Post Svo. 1S67. 20s. 
 
 COUNTY COURTS.— The Consolidated County Court 
 Orders and Rules, 187S, AArlth Fornis and 
 Scales of Costs and Fees, as issued by the Lord 
 Chancellor and Committee of County Court Judges. Authorised 
 Edition. Super-royal Svo. 1875. Xct, 3s. 
 
 Pitt-Lewis' County Court Practice. — A_ Complete 
 Practice of the County Courts, including Admiralty and 
 Isankruptcy, embodying the Act, Rules, Porms and Costs, 
 with Table of Cases and Pull Index. By G. PITT-LEWIS, 
 of the Middle Temple and Western Circuit, Esq., Barrister-at-Law, 
 sometime Holder of the Studentships of the Pour Inns of Court, 
 assisted by H. A. DE COLYAR, of the Middle Temple, Esq., 
 Barrister-at-Ijaw, Author of " A Treatise on the Law of Guaran- 
 tees." (I7i the pi'ess.) 
 CRIMINAL LAW.— Archbold's Pleading and Evidence 
 in Criminal Cases. — With the Statutes, Precedents of 
 Indictments, &c., and the Evidence necessary to support them. By 
 JOHN JERVIS, Esq. (late Lord Chief Justice of Her Majesty's 
 Court of Common Pleas). Nineteenth Edition, including the 
 Practice in Criminal Proceedings by Indictment. By WILLIAM 
 BRUCE, of the Middle Temple, Esq., Barrister-at-Law, and 
 Stipendiary Magistrate for the Borough of Leeds. Royal 12mo. 
 1878. 1^- lis- 6(^. 
 Cole on Criminal Informations and Quo War- 
 ranto.— By W.R.COLE, Esq., Barrister-at-Law. 12mo. 1843. 12s. 
 Greaves' "Criniinal Law Consolidation and 
 Amendment Acts of the 24 & 25 Vict.— With 
 Notes. Observations, and Forms for Summary Proceedings. By 
 CHARLES SPRENGEL GREAVES, Esq., one of Her Majesty's 
 Counsel, who prepared the BiUs and attended the Select Committees 
 of both Houses of Parliament to which the Bills were referred. 
 Second Edition. Post Svo. 1S62. 16s. 
 Haynes. — Vide " Leading Cases." 
 
 Roscoe's Digest of the Law of Evidence in 
 Criminal Cases.— Ninth Edition. By HORACE SMITH, 
 Esq., Barrister-at-Law. Royal 12mo. 1878. ll.lls.6d. 
 
 Russell's Treatise on Crimes and Misdemea- 
 nors.— Fifth Edition. By SAMUEL PRENTICE, Esq., one of 
 Her Majesty's Counsel. 3 vols. Royal Svo. 1877. 51. 15s. 6d. 
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 well to those who wish to obtain a complete knowledge of tliat law, as to those who 
 desire to be informed on any portion of it as occasion may require. 
 
 " What better Digest of Criminal Law could we possibly hope for than 'Kussell on 
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 "No more trustworthy authority, or more exhaustive expositor than 'Russell' can be 
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 CROSSED CHEQUES ACT — Cavanagh.— Fic^c "Money Securi- 
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 Walker. — r/cZe " Banking." 
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 _^ 119, CHANCERY LANE, LONDON, W.C. 11 
 
 DECREES.— Seton.— ric^e " Equity." 
 
 DIARY.— Lawyer's Companion (The), Did^y, and Law 
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 Public Companies, Justices, Merchants, Estate Agents, Auctioneers' 
 &c., &c. Edited by JOHN THOMPSON, of the Inner Temple' 
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 DICTIONARY.— Wharton's Law Lexicon.— A Dictionary of 
 
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 A i
 
 12 STEVENS AND SONS' LAW PUBLICATlUNS. 
 
 DIGESTS.— Bedford.— Fzrfe " Examination Guides." 
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 Chitty's Equity Index.— Chitty's Index to all the Reported 
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 in England and Ireland, the Privy Council, and the House of Lords, 
 from 1;he earliest period. Third Edition. By J. MACAULAY, 
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 (Continued Annually.) 
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 Leake. — Vide "Real Property" and "Contracts." 
 
 Notanda Digest in Law, Equity, Bankruptcy, 
 
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 14 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 EQUITY, and Vide CHANCERY. 
 
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 EXAMINATION Q[J\DES—Contimted. 
 
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 16 STEVENS AND SONS' LAW PUBLICATIONS. 
 
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 119, CHANCERY LANE, LONDON, W.C. 17 
 
 INCLOSURES.— 7icZe "Commons." 
 
 INDIAN LAW.— Norton's Leading Cases on the Hindu 
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 INJUNCTIONS.— Seton.— Ficie " Equity." 
 
 INSURANCE. — Arnould on the Law of Marine Insu- 
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 1867. 18s. 
 
 INTERNATIONAL LAW — Amos' Lectures on Inter- 
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 out the text ; but they are in a distinct type, and tlierefore the reader always knows 
 whether he is reading Wheaton or Boyd. The Index, which could not have been com- 
 piled without much thought and labour makes the book handy for reference, and, 
 consequently, valuable to public writers, who in these days have frequently to refer to 
 International Law." — Law Journal. 
 
 " Students who require a knowledge of Wheaton's text will find Mr. Boyd's volume 
 very convenient." — Law Magazine. 
 
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 WILDMAN, Barrister-at-Law. 2 vols, Svo. 1849-50. 11. 2s. 6d. 
 JOINT OWNERSHIP.-Foster.— FifZc "Real Estate." 
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 JOINT STOCKS. — Palmer. — Vide "Conveyancing" and "Company 
 
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 Thring's (SirH.) Joint Stock Companies' Law.— 
 The Law and Practice of Joint Stock and other Public Companies, in- 
 cluding the Statutes, -with Notes, a Collection of Precedents of 
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 required in iMakin£j, Administering, and Winding-up a Company. 
 Bv Sir HENRY '^THIIING, K.C.B., The Parliamentary Counsel. 
 Third EtUtion. Bv G. A. R. FITZGERALD, Esq., Barrister-at- 
 Law. and Fellow o'f St. John's College, Oxford. 12mo. 1875. 11. 
 "This, .IS the work of the original draughtsman of the Companies' Act of 1862, and 
 
 well-knoHn Parliamentary counsel. Sir Henry Thrin^ is naturally the highest authority 
 
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 Jordan's Joint Stock Companies. — A Handy Book of 
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 chambers." — Law Times, J\Uy 26, 1ST9. 
 
 " A clear and well-digested vade mecum, which will no doubt be widely used by the 
 profession.'' — Law Ma<jazii\e, November, 1879. 
 JUDGMENTS.— Piggott. — Vide "Foreign Judgments." 
 
 Walker's Practice on Signing Judgment in 
 
 the High Court of Justice. With Forms. By H. H. 
 
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 JUDICATURE ACTS.— Leys' Complete Time-Table to 
 the Rules under the Supreme Court of Judi- 
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 Lynch and Smith's Introduction to the Final 
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 AUGUSTUS SMITH, Solicitor, Clifford's Inn, Prizeman ; Senior 
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 to Acts, Rules, and Orders. For the Use of Students. Fourth 
 Edition. Royal 8vo. 1878. Net, Is. 
 
 M O rg an. — Vide " Chancery.' ' 
 
 Stephen's Judicature Acts 1873, 1874, and 187S, 
 
 consolidated. With Notes and an Index. By Sir JAMES 
 
 FITZJAMES STEPHEN, one of Her Majesty's Judges. 12mo. 
 
 1875. 4s. 6d, 
 
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 JUDICATURE ACTS— Continued. 
 
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 Practical Notes and a Copious Index, forming a Complete Guide 
 TO THE New Practice. Second Edition. By ARTHUR WIL- 
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 HARRY GREENWOOD, of Lincoln's Inn, Barrister-at-Law, 
 and JOHN BIDDLE, of the Master of the Rolls Chambers.) 
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 JUSTINIAN, INSTITUTES OF.-Cumin.— Fic^e "CivH Law." 
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 Vol. IV. containing the whole title " Poor ;" by J. E. DAVIS, 
 Esq., Stipendiary Magistrate for Stoke-upon-Trent. Vol. V. con- 
 taining titles "Quo Warranto" to "Wreck;" by J. B. MAULE, Esq., 
 Q.C, Recorder of Leeds. Five vols. 8vo. 1869. 71. 7s. 
 
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 JUSTICE OF THE PEACE -Coitm«ed. 
 Paley. — Vide "Convictions." 
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 Clerks and Solicitoi-s at Petty and Special Sessions, in Summary 
 Matters and Indictable Ofi'ences, with a List of Summary Convic- 
 tions and of INIatters not Criminal. With Forms. Ei^chth Edition. 
 By THOMAS SIKKELL PRITCHARD, Esq., Barrister-at-Law, 
 Recorder of Wenlock. Demy 8vo. 1877. 11. 10s. 
 
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 WIGUAjM, Esq., Barrister-at-Law, J.P. Middlesex. Royal 12mo., 
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 Tn the first portion, or 'Treliminary Notes,' the constitution of courts of Summary 
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 the recent Act, are explained in a series of short chapters, under the following heads:— 
 I. Justices— Jurisdiction — Divisions — Petty and Special Sessions. II. Summary 
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 tion upon Information — the Hearing and Punishment. IV. Indictable" Offences — 
 Committal for Trial. V. Summary Jurisdiction as regards Indictable Offences; 
 (children -young persons —and adults). VI. Summary Jurisdiction upon Complaint. 
 VII. Quarter Sessions and Appeal. VIII. Note on the .Summary Jurisdiction Act, 1879. 
 In the second part, entitled ' Kotes of Matters and Offences alphabetically arranged.' 
 will be found an account of most subjects which from time to time occupy the 
 attention of Justices, either in Petty or Special Se.s.sions. 
 
 ' We have nothiug but praise for the book, which is a justices' royal road to knowledge, 
 and ought to lead them to a more accurate acquaintance with their duties than many of 
 them have hitherto possessed."— So?ic«o?-s' Journal. 
 
 "This is altogether a capital book. Mr. Wigram is a good lawyer and a good 
 justices' lawyer."— ZfH'' Journal. 
 
 '■ We can thoroughly recommend the volume to magistrates."— Xaw Times. 
 
 LAND TAX — Bourdin's Land Tax.— An Exposition of the 
 Land Tax ; its Assessment and Collection, with a statement of the 
 rights conferred by the Redemption Acts. By MARK A. BOUR- 
 DIN, of the Inland Revenue Office, Somerset House (late Registrar 
 of Land Tax). Second Edition. Crown 8vo. 1870. 4s, 
 
 LANDLORD AND TENANT.— Woodfall's Law of Landlord 
 and Tenant. — A Practical Treatise on the Law of Landlord 
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 8vo. 1877. 1^. 16s. 
 
 "The editor has expended elabor.ate industry and systematic ability in making the 
 
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 LAW LIST.— Law List (The). — Comprising the Judges and Officers 
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 List of Sheriffs and Agents, London Commissioners to Administer 
 (>aths in the Supreme Court of Judicature in England, Conveyan- 
 cers Practising in England under Certificates obtained in Scotland, 
 &c., &c., and a variety of other useful matters so far as relates to 
 Special Pleaders, Draftsmen, Conveyancers, Solicitors, Proctors and 
 Notaries. Compiled by WILLIAM HENRY COUSINS, of the 
 Inland Revenue Office, Somerset House, Registrar of Stamped Cer- 
 tificates, and of Joint Stock Companies. Published annually. By 
 Authority. 1880. {Net cash 2s.) lOs.Gd. 
 
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 LAW REPORTS. — A large Stock of second-hand Reports, Estimates 
 
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 LAWYER'S COMPANION.— r«/e "Diary." 
 
 LEADING CASES.— Hayiies' Student's Leading Cases. 
 
 Being some of the Piiucipal Decisions of the Courts in Constitutional 
 
 Law, Common Law, Conveyancinf,' and Ei^uity, Probate, Divorce, 
 
 Bankruptcy, and Criminal Law. With Notes for the use of Students. 
 
 By JOHN F. HAYNES, LL.D., Author of " The Practice of the 
 
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 Law, North-Eastern Circuit. (In the press.) 
 
 LEXICON. — Vide " Dictionary." 
 
 LIBRARIES AND MUSEUMS.— Chanibers' Public Libraries 
 
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 LICENSING.— Lely and Foulkes' Licensing Acts, 
 
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 with Notes to the Acts, a Summary of the Law, and an Ai3pendix 
 
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 " Messrs. Lely and Foulkes' plan is to print in full the principal Acts, and to inter- 
 
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 gnishmg them by brackets and marginal notes These notes are usually 
 
 sensible and to the point and give evidence both of care and knowledge of the subject." 
 — Solicitors' Journal. 
 
 LIENS.— Cavanagh. — Vide "Money Securities." 
 LIFE ASSURANCE.— Scratchleys Decisions in Life As- 
 surance La^Ar, collated alphabetically according to the point 
 involved ; with the Statutes. Revised Edition. By ARTHUR 
 SCRATCHLEY, M.A.. Barrister-at-Law. Demy 8vo. 1878. 5s. 
 LIGHTS. — Woolrych's Practical Treatise on the Law 
 of Window Lights. — Second Edition. 12mo. 1864. 6s. 
 LOCKE KING'S ACTS.— Cavanagh.— Firfe "Money Securities." 
 LORD MAYOR'S COURT PRACTICE.— Candy.— ^'^■rfe "Mayor's 
 
 Court Practice." 
 LUNACY. — Elmer's Practice in Lunacy.— The Practice in 
 Lunacy under Commissions and Inquisitions, ■with Notes of Cases 
 and Recent Decisions, the Statutes and General Orders, Forms and 
 Costs of Proceedings in Lunacy, an Index and Schedule of Cases. 
 Sixth Edition. By JOSEPH' ELMER, of the Office of the 
 Masters in Lunacy. Svo. 1877. 2l5. 
 
 MAGISTERIAL LAW.— Burn.— Fz(Ze " Justice of the Peace." 
 Leeniing and Cross.— Fide " Quarter Sessions." 
 Pritchard. — Vide " Quarter Sessions." 
 Stone. — Vide " Petty Sessions." 
 Wigram. — Vide "Justice of the Peace." 
 
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 MANDAMUS. — Tapping on Mandamus. — The Law and 
 
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 both in Ensjland and Ireland. Koyal 8vo. 1848. Net, II. Is. 
 
 MARITI ME COLLISION.— Lowndes.— Marsden.— T7(/e "Col- 
 lision.'' 
 MAYOR'S COURT PRACTICE. — Candy's Mayor's Court 
 Practi ce.— The Jm-isdiction, Process, Practice, and Mode of Plead- 
 in"- in Ordinary Actions in the Mayor's Court, London (commonly called 
 the " Lord Mayor's Comt " ). Founded on Brandon. By GEORGE 
 CANDY, Esq., Barrister-at-Law. Demy 8vo. 1879. 14s. 
 
 "Thp 'ordinary' practice of the Court is dealt with in its natural order, and is 
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 MERCANTILE LAW.— Boyd.— FzcZe "Shipping." 
 Russell.— Tide "Agency." 
 
 Smith's Compendiunm of Mercantile La-w.—Nrnth 
 
 Edition. By G. M. DOWDESWELL, of the Inner Temple, Esq., 
 
 one of Her Majesty's Counsel. Royal 8vo. 1877. V. 18s. 
 
 "We can safely say that, to the practising Solicitor, few books -will be found more 
 
 useful than the ninth edition of ' Smith's Mercantile La.w.'"— Law Marjazine. 
 
 Tudor's Selection of Leading Cases on Mercan- 
 tile and Maritinie LavsA.— With Notes. ByO.D. TUDOR, 
 Esq., Barrister-at-Law. Second Edition. Royal 8vo. 1868. 1^. 18s. 
 METROPOLIS BUILDING ACTS-— Woolrych's Metropolis 
 Building Acts, with Notes, Explanatory of the Sections and 
 of the Architectural Terms contained therein. Second Edition. By 
 N^OEL H. PATERSON, M.A., Esq., Barrister-at-Law. 12mo. 
 
 1877. S*' ^^' 
 
 MINES.— Rogers' La^^r relating to Mines, Minerals, 
 
 and Quarries in Great Britain and Ireland; 
 
 with a Summary of the Laws of Foreign States and Practical 
 Directions for obtaining Government Grants to work Foreign Mines. 
 Second Edition Enlarged. By ARUNDEL ROGERS, Esq., 
 Judsje of County Courts. 8vo. 1876. IZ. lis. 6a!. 
 
 •' The voluine will prove invaluable as a work of legal reference."— T/iC JSIining Jomnal. 
 
 MONEY SECURITIES.— Cavanagh's Law of Money Secu- 
 
 joj^ies. In Three Books. I. Personal Securities. II. Securities 
 
 on Property. III. Miscellaneous; with an Appendix containing the 
 
 Crossed Cheques Act, 1876, The Factors Acts, 1823 to 1877. Locke 
 
 Kind's and its Amending Acts, and the Bills of Sale Act, 1878. By 
 
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 ■ittemnts are made, and, as we think, not without .success, to grapple with points of 
 
 r,racticc'and intcnjrctation which as yet remain judicially unsolved An appendix, 
 
 in which is embodied the full text of several important statutes, adds to the utility 
 
 .f the work as a book of reference ; and there is a good mAeJi." —Sohcitorn' Journal. 
 
 "In the second book bills of sale extend over some sixty-three pages; and the 
 
 treatise on them seems on the whole well written, especially with reference to the 
 
 alterations tnade by 41 & J2 Vict. c. 31."-/,c<w ./owv,«/. ,.„,,■■, 
 
 " May be the means of saving enormous labour to thousandsof readers. —BuUtonut. 
 
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 gage.— Third Edition. Royal 8vo. 1850. Net, 11. 
 MORTMAIN.— Ra^A'linson's Notes on the Mortmain 
 
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 1877. Interleaved. ^^^' 2«- ^<^' 
 
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 thtr'^tTf "^^'^f " - the Early state and Bifoii^i^ZI ll^fj^ 
 
 the Eules of Evidence and an Appendix comprising the NaS 
 
 Discipline Act and Practical Forms. Second EdlHnn S^ 
 
 THEODORE THRING, of the Middle Tern; eLriSr-ai-Law^ 
 
 late Commissioner of Bankruptcy at Liverpool, ind C. E (llFFORD 
 
 Assistant-Paymaster, Royal Navy. 12mo 1877 lo «;' 
 
 ' A full series of forms of warrants, minutes chars-PS b'f nnri M '„•„ j t ^ -i^s. Oct. 
 
 the utUity of a work which shoiUd be ia the bauds of all tT,'. .?, « ,^ f ^""^^^'' °°n^P'ete 
 
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 nected with the practical administration of the llw h we been cSssin^f ^ , ^^"^" .'"k"" 
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 and MUilarv Gazette ^ ^ "^""'' co^P'ste, and up to dat6."_iVat;a; 
 
 NISI PRIUS.-Roscoe's Digest of the Law of Evidence 
 on the Trial of Actions at Nisi Priu^ T^n„.t .? 
 
 /p /^f^^^^^f^.fOWELL,Barrister-at-Law. Royal 12mo 1879 2/ 
 V:^^^!:^!^^:^^:^:^J^^l^^^o.. re^uirin, n.uch 
 
 Selwyn's Abridgment of the Law of Nisi 
 PriUS.-Thirteenth Edition. By DAVID KFANF OP 
 Recorder of Bedford, and CHARLES^. SMITH, M A on^ o?th; 
 Judges of the Supreme Court of the Cape of Good Hop! 2 voL, 
 
 NOTANOA.— FicZe" Digests." I'^et, U. 
 
 NOTARY.-Brooke's Treatise on the Office and Prar 
 tice of a Notary of England.-With a fuH collect o? of 
 Precedents Fourth Edition. By LEON]^ LEVI, Esq F S A 
 
 M..ioAK,i'i"°°^^ ^''°' ^'^^■"«ter-at-Law. 8vo. 18/6 fii': 
 
 SaTHS^^ R-^l'^^^^^^^-^''^^^ " P'^blic Health." ''' ''• 
 
 oTt^.h^'^^^'''^^'^ O^^^^ in "^« Supreme Court 
 25riS?te?0 tl^'^T.'^f""""'^."^ *^^ "^« of'commission?r^^o 
 Parrrco^ti^ '" the Supreme Court of Judicature in England! 
 i^tlf -^ • f'''^ P^^^t'c^l information respecting their Appoint 
 ment Designation, Jurisdiction, and Powers ; Part II comprh W. 
 col ection of officially recognised Forms of Jurats and Zh\lh 
 Explanatory Observations. By T W BRATTHWATTir * ^^ 
 Record and Writ Clerks' Office^ Fcap.' 8vo 187^ ' t ff 
 
 ;;Spec,ally useful to Commissioners."-ia..J/.^«.F„. ^^^ ^'' ^'^• 
 
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 PARTNERSHIP.-Pollock's Digest of the Law of Part 
 Esn B^?; E/.^P^EDERICK POLLOCK, olTin^ohi^^Inn' 
 
 fniin^S"'" D:ruy ^^i: '''-^- '' ^— - i" 
 
 of *pr.7^%°-''^f * °/ v"' ^T'^' ^' ^'^ S:ive the substance of the Law 
 
 "Of th f.«on 'jtif,t^le?"^P'"t^^ ? " '^""^^^^ '^'^'^ '^'^fi'^it^ f--" 
 IJtnguage is simp rconcise and cta^ an! 'fh^'''''^ '" """" °^- '^^ ^^'^'^-^'^t P'-'^i^^. The 
 witi th'oso of Sir J ame" Stephen "'-ik^^'ll^jl^T i^™P°«"'«"^« '"^y l-ear comparison 
 
 ind^l^'^iSji^^.-r^i^t^'iii'S^::;^ 
 perhtprre3ett:^rb°cri;T^iLrt:rrf'^-?^^^^^ 
 
 t^o study than it is at VcLZt^^m^/^:^^^,^''^^''^' '^'^ " P'^asanter and easierUbject 
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 PATENTS. — Hindmarch's Treatise on the Law rela- 
 ting to Patents.— 8vo. 1846. 11. Is. 
 Johnson's Patentees' Manual ; being a Treatise 
 on the Law and Practice of Letters Patent, 
 especially intended for the use of Patentees 
 and Inventors.— By JAMES JOHNSON, Barrister-at-LaM% 
 and J. H. JOHNSON, Solicitor and Patent Agent. Eourth Edition. 
 Thorousbly revised and much enlarged. Demy Svo. 1879. 10s. 6d. 
 " A very excellent manual."— Zair Timeg, February S, 1879. 
 
 " Tlie author.s have uot only a kiiowledfjeof the law, but of the working of the law. Be- 
 sides the table of cases there is a copious index to subjects,,' — Law Journal, March 1, IS79. 
 
 Thompson's Handbook of Pateiit Law of all 
 Countries.— Third Edition, revised. By WM. P. THOMPSON, 
 CE., Head of the International Patent Office, Liverpool. 12mo. 
 1S7S. Net 2s. M. 
 
 PERSONAL PROPERTY.— Smith.— FiV?e « Real Property." 
 
 PETITIONS.— Palmer. — Vide " Conveyancing." 
 
 PETTY SESSIONS.— Stone's Practice for Justices of 
 the Peace, Justices' Clerks and Solicitors at Petty and Special 
 Sessions, in Summary Matters and Indictable Offences, with a List 
 of Summary Convictions and of Matters not Criminal. With Forms. 
 Eighth Edition. By THOMAS SIRRELL PRITCHARD, of 
 the Inner Temple, Esq., Barrister-at-Law, Recorder of Wenlock. 
 In 1 vol. Demy Svo. 1877. 1?. 10s. 
 
 "The book, as a whole, is thorougUy satiBiactory, and, having gone carefully through it, 
 
 we can recommend it with confidence to the numerous liody of our readers who are daily 
 
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 POOR LAW. — Davis' Treatise on the Poor Laws. — Being 
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 — Law Times. 
 
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 PUBLIC HEALTH.— Chambers' Digest of the Law re- 
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 REAL ESTATE.— Foster's Law of Joint Ow^nersliip 
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 1878. ' ^^^- ^'^■ 
 
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 pendium of the Law of Real and Personal Property, primarily 
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 tioners. ByJOSIAH W.SMITH, B.C.L., Q.C. Fifth Edition. 
 2 vols. DemySvo. 1877. 2/. 2s. 
 
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 REGISTRATION.— Browne's(G.L.athom)Parliamentary 
 
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 Vict. cai3. 26) ; witli an Introduction, Notes, and Additional 
 
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 ROP/iAN LAW.— Cumin.— Fic^e "Civil." 
 
 Greene's Outlines of Ronian Law.— Consisting cliiefliy 
 
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 SAUNDERS' REPORTS.— Williams' (Sir E. V.) Notes to 
 
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 Boyd's Merchant Shipping Laws; being a Consolida- 
 tion of aU the Merchant Shipping and Passenger Acts from 1854 to 
 1876, inclusive ; with Notes of aU the leading English and American 
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 containing the New Rules issued in October, 1876 ; forming a com- 
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 " —Will. & Mary to 10 Geo. IIL, 1688-1770 ,10 
 
 " 3— 11 Geo. III. to 41 Geo. Ill , 1770-1800 . 17 
 
 ' 4._4l Geo. IIL to 51 Geo. IIL, 1801-1811 .0 18 
 
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 " 8 —7 Will. IV. & 1 Vict, to 5 & 6 Vict., 1837-1842 .112 6 
 " 9 _6 & 7 Vict, to 9 & 10 Vict., 184.3-1846 . 1 11 C 
 
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 ST AT yjTES.— Continued. 
 
 'Chronological Table of and Index to the Statutes 
 
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 Head's Statutes by Heart; being a System of Memoria 
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 By LEWIS BOYD SEBASTIAN, B.C.L., M.A., of Lincoln's 
 Inn, Esq., Barrister-at-Law. 8vo. 1878. 14s, 
 
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 " Mr. Sebastian has written the fullfst and most methodical book on trade marks 
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 " Viewed as a compilation, the book leaves httle to be desired. Viewed as a treatise on 
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 TRADE MARKS.-Conttnm?. 
 
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 TRAMWAYS. — Palmer. — Vide " Conveyancing." 
 
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 TRUSTS AND TRUSTEES —Godefroi's Digest of the 
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 chasers. — A Treatise on the Law and Practice relating to Ven- 
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 High Court of Justice, Chancery Division. Fifth Edition. By 
 the AUTHOR and WILLIAM BARBER, of Lincobi's Inn, Esq., 
 Barri.ster-at-Law. 2 vols. Royal Svo. 1876. Zl. 13s. 6c/. 
 
 "A standard work Hke Mr. Dart's is beyond all praise."— 27i« Law Journal. 
 
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 WILLS.— C^onimited. 
 
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 H. S. THEOBALD, of the Inner Temple, Esq., Barrister-at-Law, 
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