V ^> ^^^■f. ,, >,»*•»» ■^ JA^^ ^^ THE LAW OF HORSES, INCLUDING THE BARGAIN AND SALE OF CHATTELS ALSO THE LAW OF RACING, WAGERS & GAMING. BY GEORGE HENRY HEWIT OLIPHANT, OF TRINITY COLLEGE, CAMBRIDGE, B.A., AND OP THE INNER TEMPLE, ESQ., BARRISTER AT LAW, Author of " The Law of Pews and Prohibition," " The Law of Church Ornaments," SfC. SfC. SECOND EDITION. " Thou that mayst fortune to be of myne opinion and condytion to love horses, take hede that thou be not beguiled as I have been a hundred tymes and more." — Boke of Husbaiidry, by Sir A. Fitzherbert, Justice of the Court of Common Pleas. LONDON : S. SWEET, 1, CHANCERY LANE, ilatD ISoofesellrr axds ^uiltsfier. 1854. " Caveat emptor." — Leg. Max. " Equi donati dentes non inspiciuntur." — D. Hieron. in Prooem. Epist. ad Ephes. " Primus Ericthonius currus et quatuor ausus Jungere equos." — Virg. Georg. " Tu qui caeteris cavere didicisti, in Britannia ne ab essedariis decipiaris caveto." — Cic. Ep. Lib. 7, Ep. 6. " Seu quis, Olympiacae miratus praemia palmae, Pascit equos Corpora praecipue matrum legat." — Virg. Georg. LONDON: PRINTED BY C. ROWOHTH AND SONS, BELL YARD, TEMPLE BAR. TO THE RIGHT HONOURABLE EGBERT MONSEY, BARON CRANWORTH, LORD HIGH CHANCELLOR OF GREAT BRITAIN, IS RESPECTFULLY DEDICATED. a 2 PREFACE TO THE SECOND EDITION. The case of the Sale of a Horse is often chosen by our Judges as a favourite and popular mode of illustratingr their views in numerous cases comins; before them with respect to the Bargain and Sale of Chattels. It is here intended that the Law re- lating to Horses should be used for a similar pur- pose; because nearly the same incidents which affect the Bargain and Sale of Horses also affect the Bargain and Sale of other Chattels, includinoj manufactured Goods, Carriages, Pictures and works of Art. An attempt has been made to arrange, in a logical and concise manner, the subjects hereafter discussed, and to reduce to a regular System the various principles which are found to be involved. Great care has been taken to keep out all matter which might tend to encumber the Book, but the most ample references are given. Vi PREFACE. During the last few years there have been nu- merous decisions with respect to the Bargain and Sale of Chattels, and the other subjects here treated of. It will also be seen that great changes have recently been made in the Law of Pleading and Evidence J and that the Law of Wagers has been liiost materially affected by the '' Act for the Sup- pression of Betting Houses." G. H. H. O. 1, New Court, Temple, Dec. 20th, 1853. PREFACE TO THE FIRST EDITION. The object of the present Treatise is to lay before the profession and the public, in as short and con- venient a form as possible, the Law of Contracts concerning Horses, whether it be in buying, selling, hiring, or in any other manner dealing with them ; to ascertain the liabilities incurred by parties either on ^* the road," through negligent driving, or in "the field," by riding over the lands of another; also to explain the present state of the law with regard to Racing, Wagers, and Gaming, in con- nection with the recent alterations effected by the Act of Victoria. The Appendix contains some very late cases, a few important Statutes, and other information which may be found useful for general reference. An attempt has been made, by a ju- dicious division of the subject and the introduction of marginal notes, to make the text as accessible as possible. G. H. H. O. Temple, May I5th, 1847. TABLE OF CONTENTS. PART I. Contracts concerning Horses, &c. CHAPTER I. BUYING, SELLING AND EXCHANGING; THE REQUISITES OF THE STATUTE OF FRAUDS; DELIVERY AND PAYMENT, AND THE LAW AS TO SUNDAY DEALING. Bargain, Sale and Exchange. Bargain Sale and Exchange Executed and Executory Contract . , Entire Contract . . Severable Contract Verbal Contract . . . . . . Written Contract Right of Recision Right of Trial Buying a Horse under lOZ. Where neither Party can be off Striking a Bargain Contract not to be performed within a Year Statute of Frauds, s. 4 Requisites under s. 4 Buying a Horse at 10/. or upwards Statute of Frauds, s. 17 Extended by 9 Geo. 4, c. 14 Requisites under s. 17 The Acceptance and Receipt. In what they consist General Rule . . . . Acceptance before Delivery a5 3 id. id. id. id. id. 4 id. id. id. 5 id. 5 id. 6 id. id. id. id. 7 id. id. X TABLE OF CONTENTS. PAGE Where an Article is selected . . . . . • 7 Question for Jury . . . . . . . . 8 What should be left to them 9 What has been held sufficient as an Acceptance and Receipt . . . . . . . . . . id. What has been held insufficient .. •• ..10 Various Acts of Ownership .. .. .. 11 A ready Money Transaction . . . . ,4 id. Where Buyer offers to resell . . . . . . 12 Where Goods are agreed to be resold .. . • id. Goods bought out of a larger Bulk .. .. id. More Articles sent than ordered . . . • ..id. The Earnest and Part-Payment. Two Kinds of Earnest .. .. .. ♦. 13 Symbolical . . . . . . . . . . ..id. Pecuniary .. .. .. .. .. id. Should be retained by Vendor . . . . ,. id. The Old Rule 14 Effect of Earnest under Statute of Frauds . . id. Effect of Part-payment .. .. .. .. id. The Note or Memorandum in Writing. Written Agreement . . . . . . . . . . 14 No particular Form required . . . . . . id. Names of the contracting Parties . . . . ..15 Terms of the Contract . . . . . . . . id. The Stamp Act .. .. .. .. ..id. Catalogue at a Sale . . . . . . . . id. Price where agreed upon . . . . . . ,. id. Where no Price is agreed upon . . .. 16 Contract by Letter . . . . . . . . ,, id. Sufficient between the Parties .. •• •• id. Must express all the Terms of the Agreement . . id. Mutual Assent .. • .. .. .. 17 When the Contract is complete . . . . . . 18 Terms cannot be varied by Parol . . * . id. Evidence that Goods are supplied on Credit . . id. Matters antecedent to the Writing .. .. 19 When admissible .. .. .. .. ..id. Memorandum made after Action . . . . id. A foreign Contract . . . . . . . . ..id. The Signature by the Party to be charged. What is necessary .. .. .. .. 19 Where a Man prints his Name . . . . ..id. The Signature by an Agent. What is necessary . . . . . . . . 20 Who may be an Agent . . . . . . ..id. TABLE OF CONTENTS. XI How constituted . . Need not be authorized in Writing . . Auctioneer . . . . . . Auctioneer's Clerk . . . . Delivery and Payment. Rights of Property and Possession Executed and Executory Contracts Property may pass without Delivery What immediately passes the Property Condition as to Price ascertainable . . Effect where not ascertainable . . Risk after Sale Goods to be made to Order . . Goods to be delivered on a future Day Delivery and Payment contemporaneous Acts Time not the Essence of a Contract When nothing is said about the Time of Delivery Relative Position of the Parties Seller's Lien for the Price Lien in Case of an Exchange Conditional Possession . . Buyer's Right of Possession where Goods are sold on Credit How it may be defeated Seller's Lien during Possession His Right of Stoppage in transitu Where Goods are held to be i7i transitu When anything remains to be done by Seller Effect of Stoppage in transitu . . ^_ Goods to be delivered before Payment . . Goods to be paid for before Delivery Price directed to be sent by Post Post Office Order Forged Bank Note Banker's Cheque Bill of Exchange Debt paid to a Third Party Sunday Dealing. Law of King Athelstan . . Statute of Charles 2 . . Sale by a Horsedealer . . By an ordinary Person A subsequent Ratification Breach of a Warranty given on a Sunday PAGE 20 id. id. 21 21 id. id. id. id. 22 id. 23 id. id. id. id. id. 24 id. id. id. id. id. 25 id. id. id. id. 26 id. id. id. id. id. 27 27 id. id. 28 id. id. Xll TABLE OF CONTENTS. CHAPTER II. HORSEDEALERS, REPOSITORIES AND AUCTIONS. PAGE HORSEDEALER. Definition of a Horsedealer . . . . . • . . 30 A Seller on Commission . . . . . . id. The Proprietor of Aldridge's .. .. ..31 Duty payable by a Horsedealer . . . . id. Horsedealer to keep a Book . . . . ..id. Decision of the Assessor . . . . • • id. Repositories and Auctions. An Auctioneer . . . . . . * . . . 31 Liable to an Action for Negligence . . . . 32 Horse sent to a Repository . . . . . . ..id. Auctioneer's Possession . . . . . • • . id. Goods privileged from Distress . . . . ..id. His Right to remain on the Premises . . . . id. Auctioneer or Clerk Agent of both Parties . . 33 Purchaser's Name signed to a Catalogue . . id. Printed Particulars of Sale . . . . . . ..id. An incorrect Catalogue . . . . . . . . id. A limited Warranty . . . . . . . . . . 34 Where it applies only to Soundness . . . . 35 Trial of a Horse warranted quiet in Harness . . id. Notice of the Conditions of Sale . . . . id. Where a Bidder may retract . . . . . . 36 Warranty of Ownership . . . . . . . • 37 Auctioneer not disclosing his Principal . . . • id. Puffing . . . . . . . . . . . . id. Person employed to bid . . . . . . . , 38 Purchaser may transfer his Bargain . . . . 39 Where Party refuses to take Goods . . . . id. Goods resold without communicating with Purchaser id. Auctioneer proper party to receive the Price . . id. Has no Authority to receive a Bill of Exchange . . 40 He is Stakeholder for both Parties .. .* id. When the Price vests in the Vendor . . . . id. Price obtained by Principal's Fraud . . . . id. TABLE OF CONTENTS. Xlll CHAPTER III. FAIRS AND MARKETS OVERT; HORSE STEALING AND THE RECOVERY OF STOLEN HORSES. PAGE Fairs and Markets overt. Sales at Fairs and Markets overt . . . . . . 41 The General Rule of Law . . . . . . 42 When Market overt is held . . . . ..id. Where Market overt is held . . . . . . id. What held to be Market overt . . . . ..id. Where a Horse at a Fair is exempt from Distress id. Horse Stealing. Statute of Geo. 4 . . . . . . . . . . id. Description in an Indictment . . . . . . 43 When the Offence is complete . . . . . . id. Property given up . . . . . . . . ..id. Delivery of a Horse to a Stranger . . . . id. Delivery on Trial . . . . . . . . ..id. Goods taken without Consent . . . . . . 44 Appropriation of a hired Horse .. .. ..id. Larceny without Proof of Sale . . . . . . id. Taking with an Intent to use . . . . ..id. Possession Six Months after Loss . . . . id. Killing or maiming Horses .. .. .. ..45 Pouring Acid into a Mare's Ear .. ., id. Recovery of Stolen Horses. Sale in Market overt . . . . . . . . 45 Statutory Regulations .. .. .. .. id. Recovery when sold under these Regulations .. id. Owner must prove the Horse was stolen .. 46 Sale out of Market overt . . . . . . ..id. Recovery when not sold under these Regulations id. Owner must first endeavour to bring the Thief to Justice . . . . . . . . . . id. But not where the Action is against a Third Party id. Order for Restitution . . . . . . . . 47 Or Action of Trover .. . . . . . , id. Order of Police Magistrate . . . . . . ..id. Where no Special Damages can be awarded . . id. Replevin for Unlawful Taking . . . . ..id. XIV TABLE OF CONTENTS. CHAPTER IV. WHAT DISEASES OR BAD HABITS CONSTITUTE UNSOUNDNESS OR VICE. PAGE Unsoundness and Vice. Present State of the Law .. .. .. ..50 Definition of Soundness .. .. .. 51 A Sound Horse . . . . . • . . ., id. Rule as to Unsoundness . . . . . . . . id. The Term " natural usefulness" .. .. ..52 Important Decision as to Unsoundness .. id. Temporary Diseases . . . . . . . . . . 54 Acute Diseases . . . . . . . . . . id. Rule as to Vice . . . . . . . . ..id. How Unsoundness or Vice should be left to a Jury id. Diseases, Defects, or Alterations in Structure, and Bad Habits. Backing and Gibbing . . . . . . .. o5 Biting . . . . . . . . . . . . id. Blindness . . . . . . . . . . ..id. Cataract . . . . . . . . . . 5Q Remittent Inflammation . . . . . . . . id. Opacity of the Lens held to be an Unsoundness id. Blood and Bog-Spavin . . . . . . . , 57 Bone-Spavin .. .. .. .. .. id. Held to be an Unsoundness . . . . . . 58 Broken- backed . . . . . . . . . . id. Broken-down .. .. .. .. .. ,.59 Broken-knees . . . . . . . . . . id. Broken-wind . . . . . . . . . . ..id. Bronchitis . . . . . . . . . . id. Canker.. .. .. .. .. .. ..60 Capped Hocks . . . . . . . . . . id. Cataract . . . . . . . . . . ..id. Chestfounder . . . . . . . . . . id. Chinked in the Chine . . . . . . ..id. Clicking . . . . . . . . . . . . id. Cloudiness . . . . . . . . . . ..id. Contraction .. .. .. .. .. 61 When held to be an Unsoundness . . . . id. Corns . . . . • • . . . . . . 62 Cough . . . . . . . . . • . . , . id. Held to be an Unsoundness when temporary 63 Confirmed by a late Decision . . . . ..id. Crib -biting .. .. .. .. .. 64 When not an Unsoundness . * . . ..id. Held to be a Vice .. .. .. .. 65 TABLE OF CONTENTS. XV Curb , Curby Hocks not an Unsoundness Cutting- Held not to be an Unsoundness Dropsy of the Skin . * Dropsy of the Heart Enlarged Glands Enlarged Hock .. Ewe Necked . . . . False Quarter Farcy . . Water Farcy Founder Gibbing .. Glanders . • . • Infectious to Mankind The recent Act Grease . . . . Grogginess Grunting . . Gutta Serena . . Hereditary Disease Kicking Kidney-dropping . . Lameness Temporary Lameness an Unsoundness Laminitis Lampas . . . . Liver Disease . . Lungs hepatized . . Mallenders and Sallenders Mange Navicular Joint Disease Nerved Horse Held to be Unsound Nose, Chronic Discharge Not lying down Opacity of the Lens Ossification of the Cartila Overreach . . Parotid Gland ulcerated Poll-evil .. Pumiced Feet Quidding . . Quittor Rat-tails .. Rearing Ring-bone PAGE , 66 id. 67 id. id. 68 id. id. id. id. 69 id. id. id. id. 70 id. id. id. 71 id. id. 72 id. id. id. 73 id. 74 id. id. id. id. id. id. 75 id. 76 id. id. id. 77 id. id. id. 78 id. id. XVI TABLE OF CONTENTS Roaring Decisions on the subject Rolling Running away Saddle-galls . . . . Pimple on a Horse's Skin Question for the Jury Sallenders Sandcrack . . . • Scab Statute of Hen. 8 .. Shivering ., Shying Sidebones . . Slipping the Collar . . Spavin Speedy-cut Splint Decision on the subject Sprain and Thickening of the Star-gazer Ewe-necked Strangles Stringhalt Held to be an Unsoundness Thickening of the Back Sinews Thick-wind Thinness of Sole Held not an Unsoundness Thoroughpin . . Thrush Tripping Vicious to clean . . Vicious to shoe . . Wall-eyed . . Warbles Warts Water-farcy . . . t Weak- foot.. Weaving: Wheezing . . Whistling Wilremhaunch Wind-galls Wind-sucking Wolf's-tooth . Yellows . . Back inews TABLE OF COXTENTS. xvn CHAPTER V. WARRANTY, SALE AND WARRANTY BY AN AGENT, AND PATENT DEFECTS. Warranty. Warranty required in buying a Horse Warranty of Title . . Not implied by Law of England How it may be inferred . . When the Consideration fails Mode of trying a disputed Title Reason for requiring a Warranty Buyer should protect himself by one What constitutes a Warranty . . Article named in a Sold Note A Sound Price not tantamount to a Warran A General Warranty A Qualified Warranty A Limited Warranty A Special Warranty . . A Written Warranty A Special Agreement . . Form of Warranty Effect of a Written Warranty The Parties are bound by it alone It cannot be extended by implication A Warranty is Several though the Contract tire A Warranty applies to the Time of Sale Warranting a future Event Buying for a particular Purpose Must be reasonably fit for the Purpose .> A Carriage Horse Quiet in Harness Unfitness must be clearly proved Warrantor's Liability Sale avoided by Fraud Sale and Warranty by an Agent. An Agent cannot delegate his Authority . Nor exceed it Agency determines by Principal's Death Difference between a remunerated and an nerated Agent Agent acting without proper Authority His Personal responsiliility Where he cannot be sued on the Contract ty be unremu en 93 id. 94 id. id. id. id. 95 id. id. id. 96 id. id. id. id. 97 id. id. id. id. id. 98 id. id. id. id. id. id. 100 id. 100 101 id. id. id. id. id. XVlll TABLE OF CONTENTS. PAGE But is liable in Damao-es .. .. .. 101 Principal answerable for his Fraud . . Or Damage caused by his Negligence . . Rule as to Principal and Agent Person described as Agent may be proved to be Principal Principal cannot be proved to be an Agent Their respective Rights of Action on a Contract Warranty by a Servant at the Time of Sale Warranty by a Servant after Sale • . Warranty by a Servant forbid to give One Warranty by a Stranger forbid to give one Master unwilling to stand by his Servant's War- ranty Rule as to a Servant binding his Master Warranty by a Person entrusted to deliver. . Agent employed to take a Warranty . . Action against a pretended Agent . . Patent Defects. Not covered by a Warranty In what they consist .. How far the Loss of an Eye is Patent . . "Bright Eye" Where the Buyer knows the Defect Where Defects are discussed . . . . Suspected Defects . . . . . . Purchase without Inspection 102 id. id. 103 id. id. id. 104 id. id. 105 id. id. 106 id. 106 107 id. id. 108 id. 109 id. CHAPTER VI. WARRANTY DISTINGUISHED FROM REPRESENTATION. W^ARRANTY DISTINGUISHED FROM REPRESENTATION. Representation intended as a Warranty .. .. Ill Recommendation of the Seller . . .. .. id. Affirmation as to Value .. .. .. .. 112 Difference between a Warranty and a Representa- tion . . . . . . . . . . . . id. Rule as to Warranty and Representation . . * . id. Mere Expression of Opinion .. .. .. 113 Selling according to a Pedigree . . . . . . id. Selling according to an Inventory "with all Faults" id. Partly a Warranty and partly a Representation id. The Jury must decide between a Warranty and a Representation .. .. .. ,.114 TABLE OF CONTENTS. XIX CHAPTER VII. FRAUDULENT CONTRACTS. Fraudulent Contracts. Where the Law does not interfere . . Where several Persons combine to cheat Conspiracy to cheat Indictable There must be Evidence of Concert . . What Evidence has been held insufficient Indictment for obtaining Money by False Pretences 118 Where only one Person cheats an Action lies . . id, Chandelor v. Lopus .. . . . . . . id. Remarks on that Case .. .. .. ..119 Form of Action . . . . . . . . . . id. Foundation of the Action . . . . . . . . id. In what Fraud consists . . . . . . . . id. There must be moral Fraud .. .. .. 120 How the Question of Fraud is to be decided . . id. Falsehood must be followed by Damage . . . . id. A naked Lie no Cause of Action . . . . id. Presumption that Person defrauded was influenced by the Misrepresentation . . . . . . id. Due Caution must always be observed . . 121 Caveat Emptor . . . . . . . . . . id. A visible Defect and a nude Assertion . . id. Dealing Talk . . . . . . . . . . id. A Foolish Bargain 122 Representation known to be untrue . . . . id. Made before a Sale by Auction . . . . id. Made by a Bidder at an Auction . . . . . . id. Representation not known to be true . . id. A well-grounded Belief .. .. .. .. 123 Delusion affecting the Contract . . . . id. Representation to prevent Inquiries .. .. id. Representation through a Third Party . . id. Representation by a Third Party .. .. .. id. A ^o«a Fe(ie Representation .. ,. .. 124 Representation as to Credit . . . . . . id. Horse sold " with all his Faults" .. .. id. Vendor held not liable for latent Defects . . . . 125 Defects fraudulently concealed .. .. id. Plugging, &c. 126 Contract made voidable by Fraud . . . . id. Wliere Fraud is practised upon the Buyer . . id. Where he continues to deal with the Article . . id. Where Fraud is practised upon the Seller . . id. Resale by the Buyer .. .. .. .. id. Contract with intent to cheat the Seller . . . . 127 PAGE 117 id. id. id. id. XX TABLE OF CONTENTS. Preconceived Design of not Paying for Goods 127 Question for the Jury . . . . . . . . id. Resale at a reduced Price . . . . . . id. Unstamped Agreement admissible to prove Fraud id. Payment by a Check which is dishonoured . . id. Drunkenness of a Contracting Party . . . . id. Goods kept by the Party when sober . . . . 128 CHAPTER VIII. breach of warranty. Breach of Warranty. Buyer neither bound to tender the Horse nor give Notice 129 Seller not bound to take back the Horse . . 130 Unless the Contract was executory .. .. id. Street v. Blay .. . . . . . . . • id. Judgment of the Court of King's Bench .. id. Lord Eldon's Opinion discussed .. .. 131 Evidence in Mitigation of Damages .. .. 132 Unfitness for a particular Purpose . . . . id. An intermediate Profit .. .. .. .. 133 Acts of Ownership inconsistent with Trial id. Confirmed by a later Case . . . . . . id. Goods are returnable where there is Fraud .. 134 But not for Non-correspondence with Sample . . id. Agreement that a Horse is to be returned if Un- sound .. .. .. .. .. 135 Or unsuitable . • • • . . • • • • id. Or unfit for a particular Purpose . . . . id. Verbal Offer after Sale to take back the Horse . . 136 Where Goods should be returned immediately id. Or the Contract becomes complete . . -. . id. Where Buyer should tender the Horse . . id. Sale after Tender . . . . . . • • • • id. Notice instead of Tender . . . . . . id. Length of Time before Notice .. .. .. 137 Seller should have the Horse examined . . id. Breach of Warranty no Defence to an Action on a Bill of Exchange .. •• .. .. 138 Unless there be a total Failure of Consideration id. TABLE OF CONTENTS. XXI CHAPTER IX. PLEADING, EVIDENCE, AND DAMAGES. PAGE Pleadings in general. Their Language and Form .. .. .. 141 Fictitious and needless Averments not to be made id. Judgment upon Demurrer to be given according to the very Right of the Cause . . . . 142 Objections by way of Special Demurrer taken away id. Pleadings framed to embarrass may be struck out or amended . . . . . . . . . . id. Pleadings to be dated and entered as of the Time of Pleading, unless Order to the contrary id. Performance of Conditions Precedent may be averred generally . . . . , . . . id. Power of Amendment .. .. .. .. I43 Misjoinder and Nonjoinder of Plaintiffs .. .. id. Misjoinder and Nonjoinder of Defendants .. id. Amendment of Defects and Errors in any Proceed- ings id. Pleading and Evidence for the Plaintiff. Executory and executed Contracts . . . . I44 Goods bargained and sold for Payment of the Price id. Assumpsit for not accepting . . . . . . id. Resale of the Goods . . . . . . . . id. Assumpsit for not delivering . . . . . , I45 Goods sold and delivered for Payment of the Price id. Horses sold and delivered . . . . . . id. Money had and received for Repayment of the Price 146 Money had and received for Repayment of Part of the Price . . . . . . . . . . id. Money had and received for Price of Horse wrongfully Sold . . . . . . . . id. Money received subject to certain Conditions .. 147 A Count on an Account stated . . . . id. Assumpsit on a Breach of Warranty . . . . id. Case for a False Warranty . . . . . . id. Liability of an Infant . . . . . . . . 148 Case for Fraudulent Representation . . . . id. The Inducement in Assumpsit . . . . , . id. The Inducement in Ca^e .. . . . , id. Statement of the Consideration . . . . , , I49 If the Horse turn out lucky .. .. id. Words used in the Statement .. .. ., id. Statement of the Promise or Warranty .. 150 Condition annexed to the Promise or Warranty id. Qualification of the Promise or Warranty . . id. The Purchase and the Payment .. .. 151 xxu TABLE or CONTENTS. Statement of the False Warranty or Fraudulent Representation . . . . Statement of the Breach . . . . Statement of the Damage . . . . . • Proof in Goods bargained and sold Proof in Assumpsit for not accepting Meaning of Readiness and Willingness Proof in Assumpsit for not delivering Proof in Goods sold and delivered Proof in Money had and received . . Proof of an Account stated Proof in Assumpsit on a Breach of Warranty Proof in Case for a False Warranty Proof in Case for Fraudulent Representation Proof of the Bargain and Sale . . Proof of the Consideration .. Proof of Payment of the Price Appropriation of the Money tendered . A late Case Proof of the Promise or Warranty Wan*anty in a Receipt not always conclusive Written Warranty requires no Agreement Stamp A Warranty not contained in the Receipt Where Authority to Warrant need not be proved W'here Authority to Warrant must be proved . . Proof of Power to rescind . . Proof of Fraudulent Representation Proof of the Breach of Warranty Notice of the Nature of the Unsoundness .. Evidence as to Unsoundness Matter of Fact alone . . . . . . Either Fact or Veterinary Opinion Both Fact and Veterinary Opinion Veterinary Opinion alone Evidence as to Vice . . . . . . • • Evidence as to Unfitness, &c. Proof of Recision . . Proof of Tender . . • • • • • • Pleading and Evidence for the Defendant. What must be specially pleaded .. .. Defence for Goods bargained and sold, and in As- sumpsit for not accepting . . Defence in Assumpsit for not delivering . . Where Evidence of Usage of Trade is not admissible Defence for Goods sold and delivered Defence to Action on a Cheque for the Price Evidence in Reduction of Damages Defence for Residue of the Price PAGE 151 id. 152 id. id. 153 id. id. id. 154 id. id. 155 id. id. 156 id. id. 157 id. 158 id. id. id. id. 159 id. id. id. 160 id. id. id. id. id. 161 id. id. 162 id. id. id. 163 TABLE OF CONTENTS. XXlll Defence for Money had and received Defence in Assumpsit on a Breach of Warranty A Surreptitious Warranty . . . . Condition annexed to a Warranty Evidence in Reduction of Damages Defence in Case for a False Warranty Defence in Case for Fraudulent Representation Disputing the Warranty Disputing the Unsoundness, &c. . . Subsequent Recovery Competency of Witnesses . . The late Acts . . Damages. General Damages . . Special Damages In Actions for a Sum certain Interest . . In Actions which sound in Damages A foolish Bargain An impossible Contract • . Cannot be higher than the Amount laid In Goods bargained and sold In Assumpsit for not accepting . . In Assumpsit for not delivering In Goods sold and delivered In Money had and received In Trover .. On Breach of Warranty Where the Horse has not been tendered . . Where the Horse has been tendered Expense of Keep Seller liable for reasonable Keep What is reasonable . . Keeping the Horse till a Fair . . . . Expense consequent on the Warranty . . Expense in selling Expense in advancing the Horse's Value .. Horse tendered, and then sold by Auction Expense of Veterinary Certificate and Counsel Opinion Travelling Expenses Loss of a Good Bargain Re-selling with a Warranty Where the Damages are very small PAGE 163 id. 164 id. 165 id. id. 166 id. id. id. 167 167 id. id. id. 168 id. id. 169 id. id. id. id. id. 170 id. id. id. id. 171 id. 172 id. 173 id. id. 174 id. id. id. 175 XXIV TABLE OF CONTENTS. CHAPTER X. INNKEEPERS, VETERINARY SURGEONS, FARRIERS, HORSE- BREAKERS, TRAINERS, &C. PAGE Innkeeper. His Business .. .. .. ., .. 177 Definition of an Inn . . . . . . . . id. Derivation of Hostler .. .. .. .. 178 Who is a Guest . . . . . . , . . . id. What an Innkeeper undertakes . . . . . . id. He must close during morning and afternoon Ser- vice on Sundays . . . . . . . . id. But not during evening Service . . . . . . id. Who is a" Traveller" id. Innkeeper compellable to receive a Traveller . . id. May be indicted for refusing . . .. ,, 179 What has been held to be no Defence . . . . id. Sickness, Drunkenness, &c. .. .. .. id. Action for Compensation .. .. .. .. id. Not liable for refusing to supply Post Horses . . id. Traveller not entitled to select particular Apartments id. Innkeeper's Liability . . . . . . . , id. Where a Guest's Horse is stolen .. .. .. 180 Where another Person's Horse is stolen . . id. Horse out at Grass by the Guest's Desire . . id. Horse out at Grass without the Guest's Desire id. Where a Guest's Horse is injured ,. .. .. 181 Presumption of Negligence . . . . . . id. A Guest's Goods not distrainable .. .. ., id. Even where he is accommodated out of the Inn id. Or uses a Stable provided for the Occasion . . id. A reasonable Price must be charged for Keep . . 182 Innkeeper has a Lien on a Horse for it .. id. Cannot detain a Guest for his Bill .. .. id. But may detain his Horse .. .. .. id. His Right of Lien . . . . . . . . . . id. Horses and Carriages sent to Livery at an Inn .. id. Cannot sell one Horse for the Keep of others . . id. Has a Lien on a Horse left by a Wrong-doer . . 183 But not if he knew it at the Time it was left . • id. A Horse left by the Police .. .. .. id. Giving a Guest Credit . . . . . . . . id. A Third Party when answerable .. •• id. Horse removed to defeat the Lien .. .. id. Innkeeper forbid to give more Food .. .. 184 He cannot use a Horse he detains .. .. id. He cannot sell a Horse he detains . . . . id. TABLE OF CONTENTS. XXV It was once held otherwise . . Distrainor may sell a Horse for his Keep Veterinary Surgeon and Farrier. No Law peculiar to Veterinary Surgeons . . Certificate of Veterinary College Farrier cannot refuse to shoe a Horse When brought at a reasonable Time . . Answerable for his own Want of Skill Where a third Person is affected When answerable for his Servant . . Collins V. Rodway . . . . . . Rule as to Farriers . . . . No Insurance against Injury Peculiar Difficulties should be mentioned Coming at an unseasonable Hour Parrying, &:c., in the Street . . . . Horses standing to be shod not distrainable Farrier may recover for Work, labour and materials under a General Count Horse may be detained for the Price of his Shoeing Such Lien is favoured by Law Extends only to each particular time Liability to feed a Horse detained , . Horsebreaker, Trainer, &c. Horsebreaker liable for Damage . . Horsebreaker's Lien Trainer's Lien A recent Decision on the Subject Stallion-master has a Lien . . For work done on a Sunday . . . . PAGE 185 id. 185 id. 186 id. id, id. id. id. 188 id. id. 189 id. id. id. id. 190 id. id. 190 191 id. 192 id. id. CHAPTER XI. livery-stable keepers, agisters, and the hiring and BORROWING horses. Livery-Stable Keeper. Has no Privilege .. .. .. .-, Liable where the Horse is lost . . Horse at Livery distrainable But not where he is merely to be cleaned and fed Distinction taken in Parsons v. Gingell Livery-Stable Keeper has no Lien for Keep May have a Lien by Agreement Horse removed to defeat such Lien What cannot be set off in an Action for Keep h 194 195 id. id. id. id. id. 196 id. XXVI TABLE OF CONTENTS. Agister. His possession ., .. .. .. Does not insure a Horse's Safety He is answerable for Negligence . . . . . . Fences out of Order, &c. The Horse's Condition .. .. .. ., Eatage let for a certain Time . . Agister has no Lien . . May have a Lien by Agreement Horses and Cattle being Agisted are Distrainable But not when taken in to rest for a Night Decision of the Irish Court of Queen's Bench Distinction where Cattle enter by breaking Fences Hiring Horses. Letting for Hire . . Warranty of Fitness for a Journey Where a particular Horse is selected .. ... What Care is required Infancy good Defence to an Action Where Hirer is answerable at all events . . Unnecessary Deviation . . . . Where Negligence must be proved Where the Horse falls Lame .. Where the Horse is exhausted Where the Horse refuses his Feed Where the Horse is returned in worse Condition Expenses of curing Sick Horse Where the Horse is improperly doctored Who must pay for Shoeing Bailment determined by selling the Goods Where the Horse is stolen from the Hirer Where the Horse is stolen by the Hirer Must have been originally taken with a Felonious Intention Horse hired by a Servant Owner's Liability in case of Accident Horses driven by the Owner's Servants Horses driven by the Owner's Servants to a certain Place Travelling Post Horses driven about Town by the Owner's Servants Laugher v. Pointer . . . . . . ... Owner held liable in Quarman v. Burnett .. Wearing the Hirer's Livery . . . . A Job-Master's Agreement Where the Hirer is liable for damage Hirer liable through his own Conduct Hirer liable where he might have controlled his Servant 196 id. 197 id. id. id. 198 199 id. id. 200 id. id. id. id. id. id. 201 id. id. id. id. 202 id. id. id. id. 203 id. id. 204 id. id. 205 id. id. id. 206 id. id. 207 id. TABLE ON CONTENTS. XXVll McLaughlin v. Pry or . . . . . . . . Opinion of the Court of Common Pleas Tifie general Rule Where the Hirer would not be liable Hirer sitting outside liable .. The Jury must decide whether the Servant is acting for the Hirer or Owner A Hirer's Agreement .. .. .. Borrowing Horses. Lending for use .. .. What Care is required . . As much as the Borrower is capable of bestowing Showing a Horse for Sale . . A gratuitous Bailee . . . . • • Use strictly personal Cannot be used by a Servant . . * . Must be used according to the Lending . . Or else the Borrower is answerable . . W^here no Time is fixed for return Redelivery on Request . . Borrower bound to feed the Horse Where the Horse is exhausted .. .. Where the Horse is killed . . Where the Horse dies from disease Where Borrower is answerable for Damage Bailment ended by Misuser PAGE 207 208 id. 209 id. 210 id. 210 id. 211 id. 212 id. id. id. 213 id. id. id. 214 id. id. CHAPTER XII. CARRYING HORSES. A Common Carrier .. .. .. .. .. 215 Bound to carry Goods . . . . . . . . id. For reasonable Charges .. .. .. ..216 Conveyance of Horses, &c. by Railway Companies id. Defects in Carriages . . • . . . . . id. A Special Contract . . . . . . . . id. Law now settled . . • • . . . . . . id. A practical injustice . . . . . . . . 217 Decision of the Court of Common Pleas . . . . id. Decision of the Court of Queen's Bench . . id. Decision of the Court of Exchequer .. .. id. Opinion of Mr. Baron Piatt 218 Dictum of Mr. Baron Parke . . . . . . id. Enforcement of Common Law Obligation . . id. Chattel to be carried to a particular Place . . id. A Ferryman .. .. .. .. .. 219 Measure of Damages . . . . . . . . id. &2 XXVm TABLE OF CONTENTS. PART II. Negligence in the Use of Horses, &c. CHAPTER I. THE CRIMINAL AND CIVIL LIABILITIES OF PARTIES FOR INJURIES INFLICTED OR INCURRED IN DRIVING, ALSO THE RULE OF THE ROAD, AND NEGLIGENT DRIVING BY A SERVANT. PAGE Negligent Driving. Where killing a Person is held to be Murder . . 222 Where killing a Person is held to be Manslaughter id. Furious Driving . . . . . . . . . . id. Carriages racing . . . . . . . . id. Driver unable to pull up . . . . . . . . 223 Where killing a Person is held to be Accidental Death . . . . . . . . . . id. And the Driver is not liable . . . . . . id. Trotting a Waggon along a Road . . . . 224 Trotting a W^aggon along a Street * . . . id. Remarks in East's Pleas of the Crown . . id. Where Streets are unusually crowded . . .,. id. Where Driver is indictable under 1 Geo. 4, c. 4 225 Furious Driving in the Metropolitan Police District id. Power of Police Constables .. .. .. id. Conviction no bar to Action of Trespass .. . . id. Where Party injured by negligent Driving may maintain an Action . . . . . . id. Action lies for Negligence in the care of Vicious Horses, &c. . . . . • . . . . . id. Where another Person strikes a Horse . . id. Damages recovered in Trespass . . . . . . 226 Driving furiously round a Corner . . . . id. Mail Cart rapidly entering Post Office Yard . . id. Frightening a Horse . . . . . . • • id. Horses run over on a Railway . . . . . . 227 Rules as to Civil Liability . . . . . . id. Negligence on one side only . . . . . • » • 228 Passenger thrown from an Omnibus . . . . 229 Horse and Cart left standing in the Street . . id. Damage from Tackle breaking . . . . id. Or from Defect in the Carriage . . . • . . id. Negligence on both sides . . • • • • 230 Where the Negligence of the injured Party did not contribute to the Accident . . . . . . id. TABLE OF CONTENTS. XXIX Where such Negligence occasioned part of the Mischief . . A Wrongdoer not without the pale of the Law ■ Driving against an Ass fettered on the Road Question of ordinary Care . . Circumstances of the Case must be left to the Jury Horse injured in being led out of the Stable Horse and Cart left in the Street Judgment of the Court of Queen's Bench A Heap left on a Highway Opportunity of seeing- the Obstruction Running over Stones at Night Leaving the Highway . . Liability of a Contractor Where there are several ways of doing a Thing Liability of an Employer What is the Question in all Cases . . Stones left by a Sub-Contractor Performance of an ordinary Domestic Duty Manure left on a Road . . Both Parties to blame Case of Thorogood v. Bryan Remark in Smith's Leading Cases Power of Selection Altogether an Accident . . . . , . Running over a Person at Night Horse running away Rule of the Road. Right Side of the Road Driving on the wrong Side in the dark Seeing a Person coming on his wrong Side . Does not justify a wanton Injury .. Rule of the Road not inflexible Parties meeting on a sudden Rule of the Road applies to Saddle Horses . Foot Passengers Rule of the Road does not apply Going over a Crossing Nuisance on Public Highway . . Horse and Carriage before Tradesman's Door Negligent Driving by a Servant. When the Master is liable Master and'Servant driving together Servant entrusting the Reins to a Stranger . Servant striking the Horse of another Servant removing an Obstruction Servant acting improperly . . PAGE 230 id. id. 231 id. id. 232 id. 236 id. id. id. 237 id. id. id. id. 238 id. id. 239 id. id. 240 id. 241 241 id. id. id. 242 id. id. 243 id. id. id. 244 244 id. id. 245 id. id. XXX TABLE OF CONTENTS. « _ PAGE Making a Detour for his own Purposes . . 245 Servant acting contrary to his trust . . . . 246 Taking his Master's Hoi-se without Leave . . id. Taking the Horse of another . . . . . . id. Master's Name on the Cart .. .. .. 247 Giving an Address . . . . . . . . . . id. Action for bodily hurt . . . . . . . . id. Liability of Master and Servant respectively . . id. Action by Representatives of a Person killed id. Plan of the Locality 248 Damages . . . . . . . . . . . . id. Responsibility for " all possible Consequenees" id. Injury done to a Carriage - . . . . . id. Measure of Damages where a Horse has been in- jured . . . . . . . . . . . . id. Damages where a Person has been killed . . 249 CHAPTER II. FEROCIOUS AND VICIOUS ANIMALS. Wild and tame Animals . . . . . . . . 250 What ought to be the Liability of the Person keep- ing them . . . . . . . . . . id. The Athenian and Roman Law .. .. .. 251 The French Code . . . . . . . . id. Argument in Mason v. Keeling . . . . . . id. Recent Decision in Scotland - . . . . . id. In England a scienter is held necessary .. .. id. Where a Dog bites a Person .. .. .. 252 Not enough to show that the Dog was of a fierce Disposition • . . . . . . . . . id. Report that Dog had been bitten by a Mad Dog id. Where a Dog worries Sheep . . . . . . id. Dictum of Mr. Justice Maule .. .. .. id. Where a Horse bit some other Horses . . id. Breaking Horses in a Public Place . • . . 253 Where a Mad Bull wounds a Person . . . . id. Where a vicious Beast kills a Person . . « . id. Owner bound to secure a vicious Animal at all events id. He is liable to an action on the Case for Damages id. The Gist of the Action . . . . - . . id. Not necessaiy to prove Negligence . . . . id. An unruly Horse escaping from a Stable .. id. Injury occasioned by a vicious Bull .. .. 254 Shooting a Dog for worrying Sheep . . . . id. Shooting a Dog for worrying Fowls . . . . id. TABLE OF CONTENTS. XXXI CHAPTEK III. THE LIABILITIES OF PARTIES HU^fTING OR TRESPASSING UPON THE LANDS OF ANOTHER. Fresh Pursuit over another's Land Pursuing Vermin No unnecessary Damage Digging for a Fox, &c. . . . . Hunting for Amusement Earl of Essex v. Capel Hunstman liable for Damage done by the Field Master of Hounds, when responsible for the Field Hunting a Hare on another's Land Taking a Stag on another's Land . . Hunting a Stray Deer . . Who may kill Hares without a Game Certificate Any Person may hunt Hares . . . . * . Continued Trespass Trespass in Search of Game Hunting with Hounds or Greyhounds Laying Hands on a Trespasser Opposing Force to Force . . . . . . Defence to an Action Horse with a Rider cannot be distrained . . Action of Trespass lies for riding over Land . . But not where a Dog jumps into a Field Costs" where Damages are less than 40*, A Trespass after Notice Notice under 3 & 4 Will. 4, c. 24, s. 3 Notice transmitted by Post Maintenance of Fences Gate of a Field left open Gate of a Railway Crossing left open . . Gate of a Railway Station left open PAGE 255 id. ■256 id. id. id. 257 258 id. id. id. id. id. id. 259 id. id. id. id. id. 260 id. id. id. id. id. id. 261 id. id. PART III. Racing, Wagers and Gaming. CHAPTER I. THEIR HISTORY, RISE AND PROGRESS IN THIS COUNTRY. The Time of Julius Caesar . . . c . . . . 263 Reign of Athelstan . . . . . . . . 264 xxxu TABLE OF CONTENTS. Reign of William the Conqueror Reign of Henry the First Reign of Henry the Second Reign of Richard the First Reign of John Reign of Edward, the Second Reign of Fidvvard the Third Reign of Richard the Second Reign of Henry the Fourth Reign of Henry the Seventh Reign of Henry the Eighth Reign of Edward the Sixth Reign of Philip and Mary Reign of Queen Elizabeth Reign of James the First Reign of Charles the First Reign of Charles the Second Reign of William the Third Reign of Queen Anne . . Reign of George the First . . Reign of George the Second Reign of George the Third Reign of George the Fourth Reign of William the Fourth Reign of Queen Victoria PAGE 264 id. id. id. 265 id. id. id. id. id. 266 268 269 id. 270 271 id. 272 id. 274 id. 276 id. 277 id. CHAPTER II. stakeholders and stewards. Stakeholders. The Law as to Racing .. .. .. •• 283 Sweepstakes . . . . . . • • . • id. Matches . . . . . . • • . . . . id. The Act for the Suppression of Betting Houses id. Entry for a Race . . . • . . . . • • id. Race not to be run within a Year • . . . 284 *' Scratching" a Race Horse .. .. .. id. Clerk of the Course usually Stakeholder .. 285 Has no Right to the Stakes .. .. .. id. Cannot set- ofl" an unpaid Stake .. .. id. Where he may cash a Cheque . . . . . . id. Stake must abide the Event of a legal Contract id. A Foot Race 286 A recent Decision . . . . . • • • id. Recovery of Money paid on an illegal Contract id. TABLE OF CONTENTS. XXXIU What the party should do . . Demand before the Money is paid over Bringino^ an Action not sufficient . . Where the Money is paid over without Dispute Where a Horse is disqualified Where Owner knows the Disqualification Proper Party to receive the Stakes Winner may maintain an Action Under what Circumstances . A Cricket Match A Wrestling Match . . A Dog Fight Loser may recover his Stake where there has been Fraud How he may waive his Claim . . • • • • Where a Stakeholder may recover from the Winner Stewards. Their Duties Disputes to be settled by them Award should be made by all .. Custody of the Stakes in the mean time . . Stewai'ds' Decision maintained by the Court Exchequer . . . • . . Appointment of a Judge Negligence in not appointing one Decision of the Umpire or Committee Terms of a Race Rules of a Regatta . . Stewards, &c., cannot waive any Condition of Race Rules of the Jockey Club . . Arbitration of the Jockey Club Sporting Phraseology A "Selling" Race A professional Jockey Horse regularly hunted with Hounds . . Match for a particular Meeting Ordering off the Grand Stand . . Ordering Goods of PAGE 286 id. 287 id. id. id. 288 id. id. id. id. 289 id. 289 290 id. id. 291 id. 292 id. 293 id. 294 id. 295 id. id. 296 id. id. 297 298 CHAPTER III. WAGERS. Wagers at Common Law Wager on the Life of Napoleon Wager on the result of an Election b5 299 300 id. XXXIV TABLE OF CONTENTS. Betting on a Race .. .. .. .. Bets not recoverable Deposit recoverable before the Event Decision of the Court of Common Pleas The Act for the Suppression of Betting Houses The Stock- Jobbing Act Does not affect Time Bargains in Foreign Funds Nor in Shares Where each Party means to break the Contract As in a Time Bargain Gaming within 8 & 9 Vict. c. 109 Question to be left to the Jury Statute against Wagering Policies What held to be such a Policy Wager as to a Declaration of War What was held not to be such a Policy Paying a Bet Giving a Security Where a Note or Bill is a Gift Taking a stolen Bank Note in Payment What invalidates the Holder's Right Mala fides must be distinctly proved Money borrowed to pay Bets . . A Betting Agent A Betting Partner Cheating in a Wager PAGE 300 id. id. 301 302 id. id. 303 id. id. id. id. id. 304 id. id. id. id. id. 305 id. id. 306 id. id. id. CHAPTER IV. GAMING. Gaming not unlawful Where a London Apprentice " frequents Gaming Where a Clergyman plays at unlawful Games Unfair or excessive Gaming Using false Dice Winning exorbitant Sums Losses by a Bankrupt Cheating in a Game or at Play The Fraud or unlawful Device Conspiracy to cheat at Skittles Conspiracy to cheat at Cards Where a Criminal Information was refused Contracts for Gaming Money deposited for Gaming . . French Law as to Games . . English Law as to Games The word Game Lawful Games, &c. . . . • 309 id. id. id. id. id. 310 id. 311 id. id. 312 id. id. id. id. 313 id. TABLE OF CONTENTS. XXXV Lawful Garaing or Play . . . . Unlawful Games . . . . . . Lotteries Lotteries declared Nuisances . . Penalty for keeping a Lottery Penalty for drawing at a Lottery Littlegoes declared Nuisances Penalty for keeping a Place for a Lottery or Li Penalty for suffering any Lottery to be drawn Justices have no Summary Jurisdiction Racing Sweeps Sale of Property by Lot Attempt to evade the Law . . Art Unions A Lottery of Houses Ballot in Land Societies Allotment or Partition by Lots Choice of Allotments The Conservative Land Society Repayment of Money . . Cock-fighting, Bull -baiting, &c. Within the ^letropolitan District Gaming in a Public House Where Money is staked Where Money is not staked Money lent for Gaming Test where the Transaction is illegal Securities for Money lent for Gaming Action on a Promissory Note Identification of Promissory Note An LO. U tlego Money lost at Play Securities for Money so lost Action against Acceptor of Bill of Exchange Action by Acceptor of Bill of Exchange Recovery of Principal and Interest Evidence of Owner of a Gaming House Summons to set aside a Warrant of Attorney A Post Obit Security held good PAGE 313 id. 314 id. id. id. 315 id. id. id. id. 316 id. id. id. 317 id. id. 318 id. id. 319 id. id. id. 320 id. id. id. id. 321 id. id. 323 324 id. id. id. id. CHAPTER V. betting houses and gaming houses. Betting Houses. A Common Betting House .. .. .. 326 Act for the Suppression of Betting Houses . . id. Purposes for which Houses or Places are not to be used . . . . . . . . . . . . id. XXXVl TABLE OF CONTEETS. PAGE Penalty for using them for such purposes . . 327 Penally for receiving Money, &c. on certain Con- ditions . . . . . . . . . . . . id. Money, &c. so received may be recovered from the Holder 328 Act does not extend to Stakes in a Race, S:c. . . id. Penalty for advertizing, &c. . . . . . . id. Power to search suspected Houses . . . . id. Power of Commissioners of Police . . . . 329 The Levy and Application of Penalties . . . . id. Where Party neglects to prosecute . . . . id. The remaining Provisions . . . . . . . . id. Gaming Houses. A Common Gaming House . . . . . . 329 Indictment for keeping one . . . . . . 330 Charge in the Indictment .. .. .. .. id. Any Person may go on with it . . . . .. id. Statutory Provisions for an Indictment . . . . id. Notice by two Inhabitants . . . . . . id. Binding over the Party accused .. .. .. id. Duty of Overseers of the Poor . . .. .. 331 Penalty where Constable neglects his Duty . . id. Setting up or playing at Hazard, &c.. . .. id. Evidence that Hazard was played . • . . . . id. Rent of a Gaming House . . . . . . id. A Subscription Club . . . . . . . . id. What is a Commom Gaming House under 8 & 9 Vict. c. 109 332 Evidence on an Information for playing Hazard . . id. Power of Justices . . . . . . . . id. In the Metropolitan District 333 Evidence of Gaming . . . . . . . . id. Difficulty of obtaining Evidence . . . . . . id. Penalties on Gaming House Keepers . . 334 Penalty for Playing . . . . . . . . id. Gaming for Money need not be proved . . id. Witnesses indemnified . . . . . . . . id. Proceeding by Indictment not prevented . . 335 Billiards, Bagatelle, &c. . . . . . . . . id. Regulations regarding Billiard Licences . . id. Non-compliance with these Regulations .. .. id. Offences against the Tenor of the Licence . . 336 When Billiard playing is not allowed . . . . id. Constables may Visit licensed Houses . . id. TABLE OF CONTENTS. XXXVll APPENDIX. PART I. UNREPORTED CASES. PAGE Pettingall v. Pettingall — Annuity bequeathed to keep a Favourite Mare . . . . . . 337 Alexander and another v. Laidley and others — Rule of the Road 339 Simpson v. Potts — Sidebones . . . . . . id. Hall V. Rogerson — Laminitis . . . . . . 340 Regina V. Cook — Furious Riding .. .. .. 343 Matthews v. Parker — Navicular Disease . . id. Atkinson V. Horridge — Thick-wind .. .. 344 Crockford v. Lord Maidstone — A Common Gaming House .. .. .. .. .. 345 Smart v. Allison — Alteration of Structure in the Feet 346 Hyde v. Davis — Disease of the Lungs . . 349 Elvin V. Chapman — Negligent Driving in the Dark 351 Bowden v. Sherman — Negligent Driving at a Cross- ing 352 Hadland v. Price— A " Selling Race" . . 353 Percival v. Dudgeon — Horse damaged by Negligent Driving . . . . . . . . . . . . 354 PART IL STATUTES. 33 Hen. VIIL Cap. 9 .. 356 2 & 3 Phihp & Mary, Cap. 7 . . 358 31 Eliz. Cap. 12 .. 361 2 Geo. II. Cap. 28 364 12 Geo. II. Cap. 28 id. 13 Geo. IL Cap. 19 370 18 Geo. II. Cap. 34 .. 371 5 Geo. IV. Cap. 83 373 3 & 4 Will. IV. Cap. 42 .. 375 5 & 6 Will. IV. Cap. 41 377 6 & 7 Vict. Cap. 85 .. 381 8 & 9 Vict. Cap. 47 383 8 & 9 Vict. Cap. 109 .. 385 XXXVlll TABLE OF CONTENTS. 9 & 9& 11 & 14 & 16& 16 & 16 & 16 & 16 & 10 Vict. 10 Vict. 12 Vict. 15 Vict. 17 Vict. 17 Vict. 17 Vict. 17 Vict. 17 Vict. Cap. 48 Cap. 93 Cap. 29 Cap. 99 Cap. 83 Cap. 33 Cap. 62 Cap. 119 Cap. 127 PAGE 397 399 401 403 408 409 420 421 418 PART III. MISCELLANEOUS. The Rules of Racing and Betting . . . . . . 427 Queen's Plate Articles 430 Newmarket Courses . . .. .. .. .. 434 Post Horses . . . . . . . . . . id. Slaughtering Horses . . . . . . . . 435 Conditions of Sale at Aldridge's . . . . id. Conditions of Sale at Tattersalls . . . . . . 437 Rules of the Subscription Room at Tattersalls 438 TABLE OF CASES. A. PAGE Acebal V.Levy, 10 Bing. 378 '^0 Adam v. Richards, "2 H. Bla. 573 .. .. 135, 146 Adams t). Grave, 1 Cr. & M. 380 32 Addison v. Gandasequi, 4 Taunt. 574 .. .. 102 Aiiisle;y v. Brown, a.d. 1845 .. .. .. 55, 81 Aleberry r. Walbv, 1 Stra. 231 152 Alexander v. Gibson, 2 Camp. 555 .. .. 104, 158 r. Laidlev, Appendix .. .. 241, o39 Allen v. Hearn, 1 T. R. 56 300,304 V. Pink, 4 iM. & W. 140 14,157 V. Sharpe, 2 Exch. 352 .. .. .. 30, 32 Allport V. Nutt, 1 C. B. 889 314,315,316 Anon. 3 Salk. 157 3 Appiegarth v. Collev, 10 M. & W. 728 . . 271, 278, 322 Arboin u. Anderson", 1 Q. B. 498 305 Archer u. Baynes, 5 Exch. 629 .. .. .. 16,17 Ashby V. Wiiiie, 1 Smith's L. C. 125 260 Atkinson V. Bell, 8 B. & C. 277 144 r. Horridge, Appendix .. .. .. 87,344 Atterbury V. Fairmanner, 8 Moore, 32 .. .. 60,159 Atwood i;. Small, 6 C. & F. 232 121 Austen V. Manchester, Sheffield and Lincolnshire Railway Company, 21 L.J. 179 (C. P.) 216 B. Bach I'. Owen, 5 T. R. 409 . . . . 14, 144, 145, 162 Baglehole v. Walters, 3 Camp. 156 .. .. .. 1^5 Bailey u. Forrest, 2 C. & K. 131 88 r. Merrell, 3 Bulst. 95 .. .. 106,119,121 Baird V. Graham, 14 Court of Sess. 615 (Sco.) .. 70,102 Baker r. Berkley, 3 C. & P. 32 258 Baldey v. Parker, 2 B. & C. 37 7 Baldw'ay t). Ouster, 1 Veiitr. 71 185 Baldwin V. Dixon, 1 M. & Rob. 59 166 Balfe V. West, 22 L, J. 176 (C. P.) .. .. 101, 291, 292 Bardell w. Spinks, 2 C. & K. 346 122 Barley V. Walford, 9 Q. B. 197 UO Xl TABLE OF CASES. PAGE Barnard r. How, 1 C. & P. 366 195 Barringtoii V. Turner, 3 Lev. i;8 .. .. .. 258 Bassett t). Collis, 2 Camp. 5i2 80 Batty V. Marriott, 5 C. B. 831 . . 283, 284, 286, 3l3, 322 Bayley w. Gouldsmith, Peake, 56 .. .. .. r. 146 v. Merrell, Cro. Eliz. 38 107 Beech w. White, 12 A. & E 670 152 Beamon v. Ellice, 4 C. & P. 586 . . . . 247, 248 Beaumont u. Brangeri, 5 C. B. 301 .. .. .. 9 Benbow u. Jones, 14 M. & W. 193 291 Benham v. United Guarantee Company, 7 Exch. 753 .. 112 Bennett v. Hall, A. D. 1853 303 . Henderson, 2 Stark. 550 .. .. .. 153,155 Bentinck v. Connop, 5 Q. B. 693 284 Bernasconi t;. Anderson, M. & M. 183 .. .. .. 154 Best V. Osborne, R. & ]\I . 296 . . . . 51, 75, 96, 104 Bevan V. Waters, 3 C. & P. 520 191,198 Bexwell u. Christie, Cowp, 397 37,38 Bianchi v. Nash, 1 M. & W. 545 145 Bidmead v. Gale, 4 Burr. ^432 276 Bill u. Bament, 9 M. & W. 36 19 Binns t;. Pigot, 9 C. & P. 208 182 Bird v. Boultoii, 4 B. Sc Adol. 443 .. .. 21,33 - — r. Holbrook, 4 Bini;, 628 234 V. Siiarpe, A.D. l8o3 .. .. .. .. 241 Biss tJ. Mountain, 1 M. & Rob. 302 166 Blaxton V. Pye, 1 Wils. 309 273 Blenkinsop r. Clayton, 7 Taunt. 59? .. .. 12,14 Bliss v. Snow, A.D. 1853 164 Bloxam i;. Sanders, 4 B. & C. 948 23,24 Bloxsome V. Williams, 1 Taunt. 135 .. .. 28, 29 r. Williams, 3 B. & C. 232 .. .. 28,29 BIyth V. Bampton, 3 Bing. 47'^ .. .. .. .. 22 Bolden V. Brogden, 2 M.&c Rob. 113 .. 53, 54, 63, 64, 72 Boorraan V. Brown, 3 Q. B. 11 .. .. .. .. 148 . v. Nash, 9 B. 6c C. 152 .. .. 152,167,169 Booth v. Mister, 7 C. ^ P. 66 245 Bordenave v. Gregory, 5 East, 111 .. .. .. 144, 145 Boss v. Litton, 5 C. & P. 407 243 Bostock V. North Staffordshire Railway' Company, 3 M. Dig. 274 (V. C. P.) 313 Boulton V. Coghlan, 1 Bing. N, C. 640 323 Bowdell V. Parsons, 10 East, 359 .. .. .. 145 Bowden v. Sherman, Appendix .. .. 226, 243, 352 Bowyer D. Cook, 4 C. B. 236 260 Bradshaw's case, cited Cowp. 397 .. .. .. 37 Brady r. Giles, 1 M. & Rob. 496 210 Bray i>. Mayne, 1 Gow, 1 201,213 TABLE OF CASES. 3di Brickhead v. Archbishop of York, Hob. Bridge v. The Grand Junction Railway & W. 246 Brien v. Bennett, 8 C. & P. 724 Briggs V. Baker, A. D. 1845 .. i;. Crick, 5 Esp. 99 . Bringloe v. ]\Iorrice, 1 Mod. 210 Bristol (Earl of) v. Wilraore, 1 B. & C. Broadwater v. Blot. Holt's Rep. 547 Broennenburgh v. Haycock, Holt's Rep. Broomfield v. Smith, 1 M. & W. 542 Brothertofi v. Wood, 6 Moore, 34 Brown V. Arundell, 10 C. B. 54 V. Elkington, 8 M. & W. 132 . . Browne v. Frye, cited 2 Camp. 407 Bryant v. Wa'rdell, 2 Exch. 482 Buclianan v. Parnshaw, 2 T. R. 746 . . Budd V. Fairmanner, 5 C. & P. 78 Burrough v. Skinner, 5 Burr. 2639 Bushell V. Wheeler, 15 Q. B. 442 Butterfield v. Burroughs, 1 Salk. 211 V. Forrester, 11 East, 60 V. Haves, 5 M. & W. 456 Bywater r. Richardson, 1 A. & E. 5(^8 ■ V. Richardson, 3 N. & M. 748 PAGE 198, 233 lo2 Coir panv, 3 M. 230, '231, 239, 244 . . 247 . 57, 166 166 . • 212 521 •• •• 127 196 630 . •• 65 162 148 32 ( 57,76, 87 . , , . , . 158 . . 214 •• 3n 114 »< •• 285 9 . , . . . . 107 • 230 ,234 t'36 161 , , 34, 74, 96 . . . . 85 c. Gaboon v. Burford, 13 M. & W. 136 Calyes' case, 8 Coke, 32 b Camoys (Lord) v. Scurr, 9 C. & P. 386 Campbell v. Fleming. 1 A. & E. 40 Canne v. Bryan, 3 B. & Aid. 179 Card V. Case, 5 C. B. 632 Carpue v. London and Brighton Railway Q. B. 747 Carr u. Jackson, 7 Exch. 382 .. V. Lancashire and Yorkshire Railway Exch. 707 Carter v. Touissant, 2 B. & Aid. 855 Caswell V. Coare, 1 Tauni. 566 Cave V. Colraan, 3 M. & R. 2 Challand v. Bray, 1 Dowl. N. S. 783 . . Champion v. Pluramer, 4 B. & C. 254 Chandelor v. Lopus, Cro. Jac. 4 .. Chandlers. Broughton, I Cr. Cc M. ^9 Chanter v. Hopkins, 4 M. & W. 406 Chapman v. Allen, Cro. Car. 271 . . . . 147 . . 178, 180 . . , , 212 . . 126 • • •• 306 165 Con ipany , 5 247 . . . . 103 Company , 7 216 218 11 136, 137, 170 2S ',95, 112 • " 278 15 111, 117 . . 207, 209. 244 99, 136, 146, 161 .. 194, 198 xlu TABLE OP CASES. Chaplin v. Hawes, 3 C. & P. 554 • V. Rogers, 1 East, 192 Charlewood's case, 1 Leach, 212 .. Charlton v. Hill, 5 C. & P. 147 Chase v. Westmore, 5 M. & S. 189 Cheeseruan v. Hart, a.d. 1847 Chesterrnan v. Lamb, 2 A. & E. 129 Chevely V. Morris, 2 W. Bla 1300 Chew v. Jones, 10 L. T. 231 (Exch.) Chippendale v. Lancashire and Yorkshire Railway Com- PAGE ., 242 12 ..203 285 23,190 293,313 130, 161, 170, 172 169 .. 200 pany, 21 L. J. 22 (Q. B.) Clare v. Maynard, 6 A. & E. 523 Clark V. Mumford, 3 Camp. 37 Clarke i'. Gray, 6 East, 568 Clay V. Wood, 5 Esp. 42 Clayards v. Delhick, 12 Q. B. 439 Clayton v. Dilly, 4 Taunt. 165 . . < . V. Jennings, 2 W. Bla. 706 Coates V. Hatton, 3 Siark. 61 V. Stephens, 9 M. & Rob. 157 217 172,174 189 149,150 242 231, 232 306 ..273 313 51, 52, 54, 63, 64, 72,166 Coggs V. Bernard, Lord Rayra. 915 ; 1 Smith, S. C. 101 a 213, 215,216 Coles V, Trecothick, 9 Vesey, 249 a 20 Collins' case, Godb. 346 179 Collins V. Rodwav, AD. 1845 .. .. .. .. 186 Coltherd D. Puncheon, 2 D. & R. 10 99 Commerce (Case of) 3 Rob. A dm. Cas Connor v. Quick, cited 2 W. Bla. 708 Cook t;. Field, 15 Q. B. 475 .. Cooper V. Andrews, Hob. 41 . . ' -v. Barton, 3 Camp. 5, n. V. Willomatt, 1 C. B. 672 Cormack v. Gillis, cited 7 East, 480 . Cornfoot v. Fowke, 6 M. & W. 381 Corbett v. Packington, 6 B. & C. 258. Corl V. Ambergate Railway Company, Cotteril v. Turley, 8 C & P. 695 Cotton V, Thurland, 5 T. R. 408 . . Cowper t;. Andrews, Hob. 41 .. . Cox V. Walker, cited 6 A. & E. 523 Crockford v. Lord Maidstone, Appendix Croft V. Allison, 5 B. & Aid. 592 245 Croker V. Walsh, 4 Ir. Jur. 293 321 Crosier v. Tomkinson, 2 Ld. Ken. 439 .. .. .. 182 Cross, Ex parte, 17 L. T. 160 (Bankruptcy Court) .. 25 Cross V. Andrews, Cro. Eliz. 622 .. .. .. .. 180 287 .. .. 241 . . 300, 313 304 5,43 201 202 132 102,105 196 OL. J. 465(Q.B.) 153 229, 243 312 5 172 309, 314, 332, 345 TABLE OF CASES. xliii Crowder v. Austin, 2 C. & P. 208 30, 39 CunlifFe u. Harrison, 6 Exch. 903 .. .. ..13 Curtis u. Hannay, 5 Esp. 83 .. .. «. .. 131 D. Daintree v. Hutchinson, 10 M. & W. 89 Dawson V. Chamney, 5 Q. B. 168 V. Collis, 10 C. B. o23 Davies v. Alann, 10 M. & W. 546 Davy V. Chamberlayne, 4 Esp. 229 Dean v. Branthwaite, 5 Esp. 35 . . V. Keate, 3 Camp. 4 Deane v. Clayton, 7 Taunt. 489 De Schwanberg v. Buchanan, 5 C. & P. 343 Dicas V. Hides, 1 Stark. 247 Dickenson v. Follett, 1 AJ. & Rob. 299 .. V. Gapp, cited 1 M. & Scott, 78 . Dickson D. Zizinia, 10 C. B. 602 Dimes v. Petley, 15 Q. B. t^83 Dixon u. Yates, 5 B. & Add. 390 Dobell V. Stevens, 3 B. &: C. 625 Dodwell V. Burford, 1 Mod. 24 Donatty v. Crowder, 11 Moure, 479 Dorrington v. Edwards, 2 Rol. 188 Dossett V. Rymili and Gower, 19 L. T. 339 (She Drury v. De la Fontaine, 3 B. & C. 232 Duncan v, Topliam, 8 C. B. 225 .. Duulop V. Higgins, 12 Jur. 295 V. Waugh, Peake, N. P. C. 223 . V. Wright, Peake, N. P. C. 197 Dunmore v. Taylor, Peake, N. P. C. 56 Dunn V. Crump, 2 B. & B. 300 Dyer v. Cowley, 17 L. T. 360 (Q. B) V. Hargrave, 10 Vesey, 507 .. V. Pearson, 3 B. & C!^ 42 riffs' Co 295,297, 313 .. 181 135, 136, 165 .. 231, 244 207 .. 204 202 .. 234 115 .. 179 67, 76 114 97 .. 243 21 .. 119 226 .. 196 109 47 28 .. 18 16 .. 119 112 144 .. 169 14, 145 .. 106 42 urt) E. Easton v. Pratchett. 1 C. M. & R. 798 Eaves V. Dixon, 2 Taunt. 343 . . Eden V. Parkinson, I'oug. 767 Edgebury v. Rosindale, 2 Lev. 94 Edwards v. Hodding, 5 Taunt. 815 Egerton v. Furzeman, 1 C. & P. 613 Elliott V. Pvbus, 10 Bing. 512 V. Thomas, 3 M. & VV. 170 Ellis V. Chinnock, 7 C. & P. 169 . . V. Mortimer, 4 B. & P. 257 .. 305 . 68, 159 .. 98 272 .. 40 288 '.. 152 161, 162 .. 172 4 xliv TABLE OF CASES. PAGE ..237 16 9,11 54, 63, 73 63,73 241, 351 ..132 286 .. 289, 313, . . 20, 31 ..264 256, 257 292, 295, 313 ..186 26 Ellis V. Sheffield Gas Company, a. d. 1853 Elmore v. Kinscote, 5 B. & C. 583 • V. Stone, 1 Taunt. 458 Elton w. Broiiden, 4 Camp. 'i81 V. Jordan, 1 Stark. N. P. C. 127 Elvin ?;. Chapman, Appendix .. Emanuel V. Dane, 3 Camp. 299 Emery v. Richards, 14 M. & W. 729 Emmerson V. Dickson, A. D. 1853 -. V. Heelis, 2 Taunt. 48 Eskridge v. Glover, 5 Stew. & Port. (Amer.) Essex (Earl of) u. Capel, A. D. 1809 .. Evans V. Pratt, 4 Scott, N. R. 378 . . 277. Everard v. Hopkins, 2 Buist. 332 .. Everett t). Collins, 2 Camp. 515 F. Fadenilke r. Holroyd, A.D. 1846 .. .. .. .. 321 Fairmaner V. Budd, 7 Bing. 575 .. .. .. 158 Falmouth (Earl of) v. Penrose, 6 B. & C. 387 . . .. 146 Farebrother v. Simons, 5 B. & Aid. 335 ., .. 21 Farina u. Home, 16 M. & W. 119 7 Fawcett V. York and North Midland Railway Company, 16Q.B.617 261 Fenn v. Harrison, 3 T. R. 76 1 104, 165 FennelU. Ridler, 5 B. & C. 406 27 Ferguson v. Carrington, 9 B. & C. 59 .. .. .. 126 Fesenmayer v. Adcock, 16 M. & W. 449 .. .. 321 Fielders. Starkie, 1 H. Bla. 17 .. .. 100, 130, 137 Firebrasse (Sir Bazil) v. Brett, 1 Vern. 489 .. .. 309 (Sir Brazill) v. Brett, 2 Vern. 70 . . . . 309 Firth r. Ackroyd, A. D. 1853 237 Fisher D. Brvdges, A. D. 1853 .. .. .. .. 3l5 V. Ronalds, 20 L. T. 100 (Q. B.) .. .. 324 Fletcher v. Bowsher, 2 Slark. 561 .. .. .. 119 Flureau v. Thornhill,2 W. Bla. 1078 174 Foot v. Baker, 5 M. & G. 339 313,320 Ford V. Sykes, A.D- 1853 .. .. .. .. 94 Forth u. Simpson, 13 Q. B. 680 192 Foster V. Thackeray, 1 T. R. 57, n. . . .. .. 304 Francis v. Wyatt, 3 Burr. 1502 .. .. 43, 189, 195 Frederick (Bart.) j;. Lookup, 4 Burr. 2018 .. .. ^73 Freeman v. Baker, 2 N. & M. 446 .. .. 111,119 Fuller ij. Abrahams, 3 B. & Bing. 116 .. .. 122 G. Gainsford v. Caroll, 2 B. & C. 624 Gardiner v. Gray, 4 Can)p. 145 169 110 TABLE OF CASES. xlv Garment v. Barrs, 2 Esp, 673 Gassiot V. Carpmael, 19 L. T. 64, 94 Gatty V. Field, 9 Q. B. 4jI Geddes v. Pennington, 5 Dow, 164 Gedge ». Minue, 2 Bulst. 62 Gelber y. Berkley, Skin. 648 .. Gibson V. Carrutl)ers, 8 M. 6c W. 346 r. Pepper, 2 Salk. 657 Gilbert v. Sjkes, 16 East, loO . . Gilbert's case, 1 Mood. C. C. 186.. Gilbertson V. Ricliardson, 5 C. B. 502 Gilpin V. Clutterbuck, 13 L. T. 71 (Q. B.) Gimson v. Wood fall, 2 C. & P. 41 . . Gomperlzt;. Bartlett, 22 L. J. 99 (Q. B.) V. Denton, 1 Cr. & M. 207 . . Goodman v. Harvev, 4 A. & E. 870 V. Kennell, 3 C. & P. 167 . . V. Taylor, 5 C. & P. 410 Gorani v. Sweeiing, 2 Wms. Saund. 200 Gordon v. Rolt, 4 Excli. 366 • V. Strange, I East, 447 Gore V. Gibson, 13 M. & W. 626 Granger v. Dacre, 12 M. & VV. 431 Gravely v. Ford, Lord Raym. 209 Gray v. Cox, 4 B. & C. 115 .. V. Gulteridge, 3 C. & P. 40 . . Green v. Goddard, 2 Salk. 640 V. Greenbank, 2 iNJarsh. 485 Greenland v. Chaplin, 5 Exch. 243 Greenway v. Marshall, a. d. 1845 Gregory v. Piper, 9 B. & C. 591 Greville v. Chapman, 5 Q. B. 745 Grieve v. Milton, a.d. 1850 .. Grizewood v. Blane, 11 C. B. 540 Gundry v. Felthara, 1 T. R. 337 Gunnis D. Echart, 1 H. Bla. 289 .. Guthingu. Lynn, 2 B. & Adol. 234 PAGE ..73 238 280, 286, 315 100, 159, 160, 166 ..256 104 127 ..225 300 . . 44 248 .. 324 46 .. 146 134 ..305 247 .. 240 112 ..247 26 .. 127 153 .. 150 99 . . 40 259 ..148 230, 248 ..62 209 ..295 236 ..303 256, 257 S3 . . 22, 149 H. Hadland t). Price, Appendix .. Hall V. Fearnley, 3 Q. B. 921 V. Rogerson, Appendix Handayside v. Wilson, 3 C. & P. 530 Hand ford v. Palmer, 2 B. & Bing. 359 Handley v. M'Laine, 10 Bing. 488 .. Hands v. Burton, 9 East, 349 Hankey v. Smith, Peake, N. P. C. 57, n. ^96, 35S .. 240 73, 340 241 .. 213 16 150, 156 144 xlvi TABLE OF CASES. Hanson v. Meyer, 6 East, 621 V. Roberdeau, Peake, N. P. C. 16 Hardinghatn V. Allen, 5 C. B. 797 Harper v. Williams, 4 Q. B. 232 Harrison v. Luke, 14 M. & W. 139 Harvey v, Archbold, 3 B. & C. 626 ~ V. Young, Yelv. 20 Hastelovv V. Jackson, 8 B. & C. 221 Hawker v. Wood, Weekly Reporter, 16 (M Hawkins v. Cooper, 8 C. & P. 473 V. Rutt, Peake, N. P. C. 248 . Hawse V. Crow, R. & M. 414 Hawthorn v. Hammond, 1 C. & K. 407 Hay V. Ay ling, 20 L. J. 171 (Q. B.) Haycroftu. Creasv, 2 East, 92.. Head V. Duggan, 3 M. & R. 97 . . Helyer v. Hawke, 5 Esp. 72 . . Hemming v. Parry, 6 C. & P. 580 Henderson v. Blake, a. d. 1852 . Hewitt V. Price, 4 M. & G. 355 . . Hibblethwaite v. M'lMorine, 5 M. & W. 462 .. Higgins V. Senior, 8 M. & W. 845 Higgs V. Thrale, a. d. 1850 Hill V. Grey, 1 Stark. N. P. C. 434 Hilliard v. Orbell, A.D. 1834 .. Hinde v. Whitehouse, 7 East, 568 Hodsoii V. Terrell, 1 Cr. & M. 802 .. Hoghton's (Sir Henry) case, cited 5 B. & Holmes V Bagge, 17 Jur. 1095 (Q. B.) V. Sixsmith, 7 Exch. 802 . . Hore V. Milner, Peake, N. P. C. 58, n. Hostler's case, Yelv, 66 Howard v. Castle, 6 T. R. 634 V. Chapman, 4 C. & P. 508 Howe V. Palmer, 3 B. & Aid. 321 Hughes i;. Quentin, 3 C. & P. 703 Humble V. Hunter, 12 Q. B. 315 Hume V. Oldacre, 1 Stark. N. P. C. 351 Hunt V. Hecht, 22 L. J. 295 (Exch.) .. Hurst D. Orbell, 8 A. & E. 107 .. Hyde v. Davis, Appendix ..286, .R.) .. PAGE .. 624 37 35, 40, 147, ib6 101 ..145 154 .. 122 287, 312 293, 295 .. 238 26 .. 127 179 124 .. S7 104, 166 .. 96 95 • • 303 23 .. 101 . 56, 96 37, 123 134 15, 33 .312, 3l3 .. 205 313 289, 313 144 .. 185 38 .. 101 9, 11 .. 249 103 .. 258 12 .. 146 74, 340 C. 556 127, I. Illidge V. Goodwin, 5 C. & P. 193 . . llott V. Wilkes, 3 B. & Aid. 304 . . Ireland v. Johnson, 1 Bing. N. C. 162 Irving V. Motley, 7 Bing. 551 Isberg V. Bowden, 22 L. J. 322 (Exch.) 229, 233 .. 234 148 .. 127 161 TABLE OF CASES. xlvii J. Jackson v. Cummins, 1 M. & W. 350 . . Jacobs V. Latour, 2 M. & P. 205 James v. Morgan, I Lev. Ill .. .. Ja^ V. Whitfield, cited 4 Biiig, 644 Jeffery v. Walton, 1 Stark. N. P. C. '267 .. Jeffreys v. Walter, 1 Wils. 'i20 Jellj V. Clark, Cro. Jac. 189 Jendwine v. Slade, 1 Esp. 572 Joel V. Morrison, 6 C. & P. 501 Johnson v. Dodgson, 2 M. & W. 653 . . . u. Hill, 3 Stark. N. P. C. 172 . .V.Johnson, 3 B. & P. 162 V. Langlev, 1 Leg. Ex. 334 (Exch.) Joliif V. Bendell, R. & M. 136 . . Jones V. Bright, 3 M. & P. 175 u. Carter, 15 L. J. 96 (Q. B.) V. Cowley, 4 B. & C. 445 V. Gibbons, 22 L. J. 348 (Exch.) v. Hart, 2 Salk. 440 V. Osborn, 2 Chit. 484 V. Pearle, 1 Stra. 557 V. Powell, 5 B. & C. 650 . . V. Randall, Cowp. 39 V. Thurloe, 8 Mod. 172 V. Tyler, 1 A. & E. 522 . . Jordan v. Norton, 4 M. &c W. 160 Joseph V. Adkins, 2 Stark. N. P. C. 76 Judson V. Ethridge, 1 Cr. & M. 743 Justice V. Gosling, 21 L. J. 94 (C. P.) PAGE 191, 198 191 .. 168 235 .. 210 . • . 313 180, 194 112,119 .. 246 14, 19, 161, 162 ..182 3 ..386 72 93, 94, 95, 99, 126 ..288 .. 96, 151 ..145 186 .. 178 182, 184 .. 199 299 182, 184 181 .. 9,18,106 46 .. 198 225 K. Kain V. Old, 2 B. & C. 627 4,19,97 Kennedy v. Gad, 3 C. :x P. 376 . . . . 288, 3l3 Kenworthy r. Scholfield, 2 B. & C. 945 .. .. 13,15 Keppel V. Countess Dowager of Albemarle, a. d. 1850 285 Kiddell v. Barnard, 9 M. Ic W. 670 . . 51, 52, 54, 63, 72, 81, 89, 165, 175 King V. Boston, cited 7 East, 481, n. .. 132, 163 u. Price, 2 Chit. 416 170 V. Sears, 2 C. M, & R. 53 149,155 King's case, A. D. 1853 .. .. .. .. .. 313 Kingston v. Kingston, 11 M. & W. 233 .. .. ^6 Kirkraan u. Shawcross, 6 T. R. 17 182 Knox t?. Whalley, 1 Esp. 159 .» .. .* .. 138 xlviii TABLE OF CASES. L. PAGE Lacey v. Umbers, 2 C. M. & R. 116 293 Laing V. Haiii, 2 S. M. & P. 395 (Court of Sess. Sco.) S6, 39 Lamb V. Lady Elizabeth Palk. 9 C. & P. 629 .. 245, 293 Lambert r. Harrison, A. D. 1853 .. .. .. 227 Lane t;. Cotton, 1 Salk. 18 .. .. 179,186,189 Laugher v. Pointer, 5 B. & C. 558 . . . . 204, 206 Laythroap V. Bryant, 2 Bing. N. C. 744 19 Layton v. Hurry, 8 Q. B. 811 185 Lee i;. Irwin, 4 Ir. Jur. 372 (Exch. Ir.) 192 r. Paterson, 8 Taunt. 340 169 v. Shore, 1 B. & C. 94 153 Leeser's case, Cro. Jac. 497 .. .. .. .. 309 Leeson V. Smith, 4 N. & M. 304 154 Leigh V. Paterson, 8 Taunt. 540 .. .. .. 169 Leroux f. Brown, 16 Jur. 1021 (C. P.) 19 Levy V. Langridge, 4 M. & W. 337 120 D, Lord Herbert, 7 Taunt. 318 .. .. .. 153 Lewis V. Cosgreave, 2 Taunt. 2 .. .. .. 162 V. Nicholson, 21 L. J. 316 (Q. B.) .. 101, 102 «. Peake, 7 Taunt. 153 .. .. .. .. 54,174 Lickbarrow v. Mason, 2 T. R. 63 . . .. .. .. 25 Liddard V. Kain, 2 Bing. 183 98 Load r. Green, 15 M. & W. 216 126 Logan V. Le Mesurier, 11 Jur. 1094 .. .. .. 21 Longmead v. Holliday, 6 Exch. 766 .. .. 120,186 Lowe V. London and North -Western Railway Company, 21 L. J. 363(Q. B.) 144 Lucas V. Delacour, 1 M. & W. 249 103 Lynch v. Nurdin, 1 Q. B. 33 .. .. .. 229, 236 Lyons V. De Pass, 11 A. & E. 326 42 t). Martin, 8 A. & E. 515 .. .. .. ..244 M. Maclean v. Dunn, 4 Bing. 727 . . . . 20, 39, 144 Manby v. Scott, 1 Mod. l37 .. .. 24, 197, 313 Manchester, Sheffield and Lincolnshire Railway Company t;. Wallis, A. D. 1853 262 Margetson v. Wright, 1 M. & Scott, 622 .. 84, 108, 147 Marryat v. Broder^ick, 2 M. & W. 369 .. 285, 286, 290, 295 Marshall u. Lynn, 6 M. & W. 118 6,18 Marson D. Short, 2 Bing. N.C. 118 152 Martin u. Smith. 6 Scott's N. R. 272 320 Martindale u. Smith, 1 Q. B. 364 23,25 Mash V. Densham, 1 M. & Rob. 442 . . .. 123, 151 Matthews V. Parker, Appendix .. .. .. .. 343 Mayor of Colchester v. Brooke, 7 Q. B. 359 . . 226, 230 TABLE OF CASES. xllX PAGE Mayor of Reading v. Clarke, 4 B. & Aid. ^269 . . . . 149 M'Kenzie u. Hancock, R. & M. 436 170 M'Keon V. Bollon, 3 Ir. Jur. 288 (Q. B. Ir.) . . . . 238 M'Kinnell v. Robinson, 3 M. & W. 434 . .306, 320, 3^21, 331, 365, 366 M'Laughlin v. Pryor, 1 C. & Marsh. 354 .. 207, 2 10 M'Manus y. Cricket, 1 East, 106 ^44 Mealing v. Hellintis, 14 M. 6c W. 712 .. .. 286 Mellish V. Motteux, Peake, N. P. C. 115 124 Mellor u. Leather, 21 L. T. 125 (Q. B.) .. .. 48 Mesnard v. Aldridge, 3 Esp. 27 I . . . . . . 35, 36 Meyneil v. Bone, A. D. 1853 .. .. .. .. 3-/0 Miles r. Sheward, 8 East, 7 .. .. .. .. 150 Miines i;. Cowley. 8 Price, 620 122 Miner v. Bradley, 22 Pick. Rep. 459 ( Amer.) . . . . 3 Mitchell V. Crasweller, 22 L. J. 104 (C. P.) .. 245, 246 Mogijridge V. Jones, 3 Camp. 38 .. .. .. .. 138 Mondel V. Steel, 8 M. & W. 858 163 Monkton u. Pashley, 2 Salk. 639 259 Morley u. Attenborough, 3 Exch. 500 . . .. .. 94 Morse t). Slue, 1 V'eutr. 238 .. 216 Morton v. Tibbett, 15 Q. B. 428 J 2 Mosley V. Fossett, 1 Rol. Abr. 3 180 Moss V. Sweet, 20 L. J. 167 (Q. B.) .. . . 136. 145, 162 V. Townsend, 1 Bulst. 2oV 182, 183 Mummery v. Paul, 1 C. B. 322 .. 120, 147, 148, 154, 165 Murray t). Mann, 2 Excl). 538 .. 40,102,120,102,196 Muschamp v. Lancaster and Preston Railway Company, 8 M.&W. 421 218 Mynn v. JolitF, 1 M. & Rob. 326 40 N. Newton u. Trigg, 1 Show. 270 179 Nicholas V. Badger, 3 T. R. 259, n 256 Norville V. Great Western Railway Company, 19 L. T. 140. 218 Nugent V. Kirwan, 1 Jebb & Syraes, 97 (Q. B. Ir.) . . 199 O. Oakley v. Righy, 3 Scott, 194 O'Connor v. Bradshaw, 5 Exch. 890 . Okell V. Smith, 1 Stark. N. P. C. 107 Onslow V. Eames, 1 Stark. N. P. C. 81 Ormrod v. Huth, 14 M. & W. 664 . . Oughton V. Sepping, 1 B. & Adol. 41 Overton v. Freeman, 21 L. J. 52, (C. P.) Owen's case, 1 Mood. C. C. 205 . ' • •• • • • * 303 317 133 , . 79, 90 95, 112, 124, 159, 165 , , . , 140 ) , , 237, 238 , , , , 45 1 TABLE OF CASES. P. PAGE Padgett v. Macnair, 15 Court of Sess. 76 (Sco.).. .. 136 Palmer v. Grand Junction Canal Company, 4 M.&c W. 749. 215 Parker v. Farebrother, 2 Weekly Reporter, 370 (C. P.) . . 32 y. Great Western Railway Company, 7 Scott, N. R. 835 Parkhurst v. Foster, 1 Sulk. 387 Parkinson v. Lee, 1 East, 323 Parsev v. Edmonds, a. d. 1853 Parsons v. Gingell, 4 C. B. 558 V. Sexton, 4 C. B. 905 Pasley v. Freeman, 3 T. R. 59 Paterson v. Powell, 9 Bing. 320 Pateshall v. Tranter, 3 A. &. E. 103 Patterson v. Gandasequi, 15 East, 69 . Paul V. Dod,2C. B. 800 .. Payne v. Cave, 3 T. R. 148 . . V, Whale, 7 East, 274 Peachey v. Rowland, 20 L. T. 208 (C. P.) Pear's case, 1 Leach, 212 .. Peer v. Humphrey, 2 A. & E. 495 Percival V. Dudgeon, Appendix V. Spencer, Yelv. 45 . . Pettingall v. Pettingall, Appendix Pettitt V. Mitchell, 5 Scott, N. R. 740 Phillpotts V. Evans, 5 M. & W. 475 Pickering v. Busk, 15 East, 45 V. Dowson, 4 Taunt. 785 Pickford v. Grand Junction Railway Company, 10 M. & W. 399 215,216 Pigot V. Eastern Counties Railway Company, 15 L. J. 235 (C. P.) 247 Pilmore v. Hood, 5 Bing. N. C. 97 37, 123 Pluckwell V. Wilson (Bart.), 5 C. & p. 375 .. 239,240 Poole V. Longuevill, 3 Wms. Saund. 290, n. q .. . . 199 Poulton V. Lattimore, 9 B. & C. 265 .. .. 130, 137, 162 Povey V. Purnell, A.D. 1853 197 Powell v. Edmunds, 12 East, 6 So u, Salisbury, 2 Y. & J. 394 .. .. ..214 Power u. Barham, 4 A. & E. 473 .. .. 111,115,118 . V. Welles, Cowp. 818 134,146 v. Wells, Doug. 24, n 132 Prebble u. Boyhiirst, 1 Swanst. 329 122 Prestwicke t). Marshall, 7 Bing. 565 .. .. .. 20 Price V. Morgan, 2 M. & W. 55 106 Prince v. Brunette, 1 Bing. N. C. 438 .. .. 20 it;. Purcliase, 6 Geo. 2 .. .. .. .. 147 215, 216 . 195 , , 95, 100 , 331 195, 259 161, 163 ?8, 117, 118, , l'i!0, , 122 304 . . , . 137 . 162 . . 162 . 4, 57 .. 97, 132, 136, 159 '•) •• . 237 . . 203 • 45 354 , 169 , , 337 . . 23, 26 . . , , 169 . . 32, 104 97, 125 TABLE OF CASES. U Q. PAGE Quarman i;. Burnett, 6 M. & W. 499 . . . . 203, 207 Quarrier i;. Colston, 1 Turn, .k Ph. 147 .. .. 306 R. Rarabert «. Cohen, 4 Esp. 213 156 Randleson v. Murray, 8 A. & E. 109 . . . . 186 Rawsoii V. Johnson, 1 East, ^03 .. .. 144,153,162 Reading v. Menshara, 1 M. & Rob. 234 .. . . 206 ReadJnsz (Mayor of) v. Clarke, 4 B. & Aid. 269 . . .. 149 Rede ^rBurley, Cro. Eliz. 549 189 Reed v. Fairbanks, 22 L. J. 106 (C. P.) .. 23, 170 v. Tate, A. D. 1846 239,241 Reeves v. Capper, 5 Bing. N. C. 136 .. .. .. 24 Reg. V. Aldridge, 4 Cox, C. C. 143 43, 150 V. Ashton, 22 L. J. M. C. 1 (Q. B.) . . 313, 3l9 V. Bailey, 4 Cox, C. C. 397 •• .. 117, 3ll,3l3 V. Brooks, 8 C. & P. 295 44, 203 V. Buckinghamshire (Justices), 17 Jur. 530 (Q. B.).. 178 u. Cook, Appendix, 222 .. .. -. •• 343 V. Cooper, 16 Jur. 750 .. .. .. ..45 t). Gardner, A. D. 1851 .. .. .. .. 507 V. Gonipertz, 9 Q. B. 824 127 V. Henson, 20 L. J. JM. C. 63 (Q. B.) . . . . 70 V. Kenrick, 5 Q. B. 62 117,118 i;. Knapp, 22 L. J. M. C. 139 (Q. B.) .. .. 178 V. Murray, 5 Cox, C. C. 509 (Ir.) 224 v. Orbell, 6 Mod. 42 306 V. Read, 6 Cox, C. C. 135 118 V. Sanders, 9 Q. B. 235 . . . . . . . . 330 V. Shephard, 9 C & P. 123 43 V. South Western Railway Company, 1 Q. B. 581 .. 335 V. Swindall, 2 C. & K. 230 . . . . 222, 223 Rex V. Banks, R. & R. 441 44 u. Brooks, 8 C. & P. 295 44 v. Burnett, 4 M. & S. 272 70 r. Chappie, R. & R. 77 45 u. Dale, 7 C. & P. 352 43 ?;. Dixon, 10 Mod. 336 .. .. .. .. 330 D. Iveiis, 7 C. & P. 219 179 z;. Janson, 4 Cox. C. C. 82 44 t). Kilderby, 1 Saund. 312, n. 2 186 V. Liston, 5 T. R. 240 . . 314, 331, 365, 366 V. Luellin, 12 Mod. 445 179 r. Mason, Leach, C. C. 548 . . .. .. .. SoO r. Patch, 1 Leach, 521 44 V. Patty, 2 W. Bla. 721 45 c2 lii TABLE OF CASES. 98 Rex V. Peach, 1 Burr. 548 V. Peer, 1 Leach, 521 V. Phillips, 2 East, P. C, c. 16, s V. Pratt, 1 Mood. C. C. 185 . . V. Pywell 1 Stark. N. P. C 402 V. Rogier. 1 B. & C. '272 V. Smith, 1 Mood. C. C. 473 V. Timmins, 7 C. &c P. 500 V. Walker, 1 C. & P. 3i . . V. Wheatle^', 2 Burr. 1 127 . . V. Whitney, I Mood. C. C. 3 V. Wood, 3 B. & Adol. 657 . . Richards v. Porter, 6 C. B, 438 V. Simmons, 8 Q. B. 90 Richardson v. Brown, 8 Moore, 338 . Richmond v. Smith, 8 B. & C 11 .. Ricketts v. East and West India Dock and Canal Company, 21 L. J. 201 (C. P.) Rigby V. Hewitt,'5 Exch. 242 Rimill t;. Sampayo, 1 C. & P. 254 Ringv. Roxbrough,2 C. & J. 418 .. Robinson v. W^alter, 3 Bulst. 270 .. V. Walter, Pop. 127 Roddy V. Stanley, 5 Ir. Jur. 10 Roscorla v. Thomas, 3 Q. B. 234 Rosse V. Bramstead, 2 Rol. Rep. 438 Routledge v. Grant, 4 Bing. 653 Rushforth V. Hadfield, 7 East, 229 PAGE 312 . . 44 44 . . 44 117 .. 326,330 196 223, 241 223 117, 118, 119 45 . • . . oa4 .. 16,17 .. ..197, 198 114 179, 180 Birmingham ..260 ..229,248 ..204 ..149,151 182, 184, 185 183 ..316 149 ..184 37 .. 190 S. Salmon t>. Ward, 2 C. & P. 211 .. .. .. 95,112 Saramell v. Wright, 5 Esp. 263 .. .. 204, 205 Saunders v. Piummer, Orl. Bridg. 227 .. 178, 180, 182 r.Topp, 4Exch. 394 7,8 Saunderson v. Jackson, 2 B. & P. 238 20 Saxby v. Wilkin, 1 D.& L. 281 149 Scarfe v. Morgan, 2 M. & W. 270 .. 184, 190, 191, 192, 198 Scattergood v. Sylvester, 19 L. J. 447 (Q. B.) .. 47 Schneider v. Heath, 3 Camp. 508 .. .. 125,126 V. Norris, 2 M. & S. 286 20 Scholefield v. Robb, 2 M. .\ Rob. 210 . . 51, 54, 66, 72, 159 Scotland (Bank of) v, Watson, 1 Dow, 45 .. 105, 160 Scott V. England, 2 D.& L. 524 39,144 Scrapie's case, 1 Leach, 420 . . . . . . . . 203 Sewell V. Corp, 1 C. & P. 392 185 TABLE OF CASES. liii Sheldon v. Cox, 3 B. & C. 420 . . Shelley v. Ford, 5 C. & P. 313 Shelton v. Livius, 2 C. & J. 416 Shepherd v. Kain, .5 B. & Aid. 240 . . Sherbon V. Coleback, 2 Ventr. 175 Sherrard v. London and North Western Railway Company, 4 Exch. 580 Shrewsbury v, Blount, 2 M. & G. 475 Sigel V. Jebb, 3 Stark. N. P. C. 2 Simmons v. Swift, 4 B. & C. 857 Simpson v. Bloss, 7 Taunt. 246 . V. Potts, Appendix Skrine v. Elmore, 2 Camp. 407 . Slater v. Swan, 2 Stra. 872 .. Sleath V. Wilson, 9 C. & P. 608 . Smart u. Allison, Appendix .. V. Hyde, 8 M. & W. 728 15; Smith V. Bickmore, 4 Taunt. 474 V. Chance, 2 B. & Aid. 755 V. Deerlove, 6 C. B. 132 V. Ferrand, 7 B. & C. 19 . V. Lawrence, 2 M. & R. 1 V. M'Namara, a.d. 1853 V. Parsons, 8 C. & P. 199 V. Rolt, 9 C. & P. 696 Southcote's case, 4 Rep. 83 . . Southerne v. Howe, 2 Rol. Rep. 5 Spartali v. Benecke, 10 C. B. 212 Specot's case, 5 Rep. 558 Spencer i;. Dawson, 1 M. & Rob. 552 Springwell v. Allen, Aleyn, 91 . . Squire v. Hunt, 3 Price, 68 . . Stablest;. Eley, 1 C. & P. 614 .. Stannion v. Davis, Salk. 404 . . Staunton v. Wood, 16 L.T. 486 (Q.B.) . Stead V. Dawbea, 10 A. & E. 57 . . Stevens v. Lee, a.d. 1853 Steward v. Cocovelt, 1 C. & P. 23 . . Storr V. Scott, Bart., 6 C. & P. 241 Street v. Blay, 2 B. & Adol. 456.. 130, 133, 134, 135, 161, 162 Strode v. Dyson, 1 Smith, 400 . . Stuart D. Wiikins, Doug. 18 .. Sunbolf V. Alford, 3 M. & W. 248 Sutton V. Moody, Ld. Raym. 250 V. Semple, 12 M. & W. 60 PAGE .. 145 202 32 111, 118 309 227 .. 121,123 .. 313 152 . . 320 76, 82, 146, 339 155, 158 244 . . 246 51, 7o, 346 150,165 312 .. 153 178, 182 27 204 .. 226 99, 143 155, 162 216 .. J07 162 .. 309 154, 165 .. 120 152 .. 247 181 25 18 40 100 .. 298 Sykes v. Giles, 5 M. & W. 650 Symonds v. Carr, 1 Camp. 361 106, 138 .. 91,100 .. 182 .. 258 98, 198,204 . . 39, 103 98, 149 liv TABLE OF CASES. T. TafF Vale Railway' Company v. Giles, porter, 57 (Exch. Cham.) Taplin V. Florence, 10 C. B. 744 Tarling v. Baxter, 6 B. & C. 364 Tate V. deed, C. B., H. T. 24 Geo. 3 Ta^'lor V. Ashton, 11 M. & W. 413 ^v. Builen, 5 Exch. 779 Tempest v. Fitzgerald, 3 B. & Aid. 680 t;. Kilner, 2 C. & P. 308 Templeraan v. Haydon, 19 L. T. 218 (C Thistlewood v. Cracoft, 1 M. & S. 500 Thompson v. Davenport, 9 B. & C. 86 . V. Lacy, 2 B. & Aid. 286 . . • V. Patteson, a.d. 1846 .. Thornborrow v. Wliitacre, 2 Ld. Raym. : Thornett v. Haines, 15 L. J. 230 (Excii. Thorogood v. Bryan, 8 C. B. 130 Thorpe v. Colman, 1 C. B. 199 .. V. Thorpe, 1 Ld. Raym. 665 . . Tooke I'. Hollingsworth, 5 T. R. 215 Towers V. Barrett, 1 T. R. 133 Turley v. Thomas, 8 C. & P. 103 U. Ulher V. Rich, 10 A. & E. 784 V. Varney v. Hickman, 5 C. B. 282 .. Vernon t). Keys, 12 East, 637 Vicars v. Wilcocks, 8 East, 3 . . W. Walker v. Mellor, U Q. B. 478 . . Wallace v. Woodgate, 1 C. & P. 275 Walmesly v. Matthews, 3 Scott, N. R. 584 WalpoleV Saunders, 7 D. & R 130 Walter v. Ha\nes, R. & M. 149 Ware v. Juder, 2 C. & P. 351 Warwicke v. Noakes, Peake, N, P. C. 98. Waterhouse v. Skinner, 2 B. & P. 447 Watson V. Ambergate, Nottingham and Boston Company, 15 Jur. 448 . V. Denton, 7 C. & P. 86 i V. Earl of Charlmont, 2 Q. B. 862 Wayde v. Lady Carr, 2 D. & R. 256 Weall V. King, 12 East, 452 2 Wee kiy Re- 216 32 1 21, 23, 25 . . 199 • •• •• 120, 123 113 12 153 P .) . •• 229 321 . 37 ,101 103 177 16 4 •• 85 169 •• •• 225 39 239 • 322 , , , . 26 , . , 24 • 132, 134 , 146, 161 243 305 286, 301 302 . . 122, 123 •• 167 162 . . 184, 196 293 '296 •• 288, 313 26 . . 150 . . 26 , , 153 1 Railway 219 58, 170, 173 120 , , 242 . . 158 TABLE OF CASES. Iv PAGE Weavert;. Busb, 8 T. R. 78 259 Webb I'. Bell, 1 Sid. 4-iO 269 V. Fail-manner, 3 M. & W. 473 .. .. 162 Weller v. Deakiiis, 2 C. & P. 618 .. 287, 293, 294, 296 Wells V. Porter, 3 Scott, 141 303 V. Power, 3 Scott, 150 . . . . . . 302 Welsh V. Lawrence, 2 Chit. 262 229 Wentworth v. Outhwaite, 10 M. & W. 452 . . 25 Westbrook v. Griffith, Moor, 876 .. .. 178, 184, 185 Weston V. Downes, Doug. 23 . . .. 1'22, 136, 146 Wheatley v. Patrick, 2 M. Sc W. 650 .. .. 214 Wheeler v. Collier, M. &'M. 126 39 White V. Garden, 20 L. J. 166 (C. P.) . . . . 126 u. Spettigue, 13 M. & W. 603 47 Wilkes v. Atkinson, 1 Marsh, 412 .. .. 144, 153 Wilkinson v. Godfrey, 9 A. & E. 536 . . . . 285 V. L'Eaugier, 2 Y. & C. 366 . . . . 321 Willanr. Carter, A. D. 1853 59,122 Williams y. Barton, 3 Bing. 145 .. .. .* .. 21 r. Hide, Palra. 548 .. .. .. .. 214 v. Hill, Palm. 548 213 V. Holmes, 22 L. J. 284 (Exch.) .. 22, 181 V. Llojd, Jones on Bailments, 179 .. 213 V. Millington, 1 H. Bla. 81 . . . . 31, 32 D. Paul, 6 Bing. 654 .. .. .. .. 28 V. Richards, 3 C. & K. 82 243 Williams' case, A. D. 1853 .. .. .. .. 178 Williamson u. Allison, 2 East, 453 .. .. 120,147 Willoughby v. Horridge, 22 L. J. 90 (C. P.) . . 219 Wilson v. Brett, 11 M. & W. 113 212 Wood V. Leadbitter, 13 M. & W. 838 . . . . 298 V. Smith, 4C.&; P. 45 95,96 Woodin V, Burford, 2 Cr. & M. 39 .. .. 106, 158, 166 WoodrofFe D. Farnham, 2 Vern. 291 .. .. .. 309 Woodward's case, 2 East, P. C. 653 .. .. 196 W^oolfv. Beard, 8 C. & P. 373 229 W^ ray u. Lister, 2 Stra. 1110 169 Wright V. Dannah, 2 Camp. 203 20, 33 V. Johnson, 1 Sid. 440, 447 152 Wrightup V. Chamberlain, 7 Scott, 598 .. .. .. 174 Y. York V. Greenhaugh, 2 Ld. Raym. 867 .. 180, 194 TABLE OF STATUTES. PAGE 12Ric. 2, c. 6 ..265 11 Hen. 4, c. 4 . . .. , .. . * 265 5 Edw. 4, c. 2 .. 179 11 Hen. 7, c. 13 • • • • 266, 358 22 Hen. 8, c. 7 ..266 27 Hen. 8, c. 6, s. 2 . . , , 266 32 Hen. 8, c. 13, s. 2 266, 267, 270 33 Hen. 8, c. 5 .. 367 33 Hen. 8, c. 9, Appendix . . . 267, 268, 332, 334, 350 1 Edw. 6, c. 5, s. 1 .. • . • • 269 2 & 3 Ph. & M. c. 7, Appendix . 49, 269, 270 2& 3 Ph. & M.c. 9 .. . . 269 5 Eliz. c. 19 ..270 8 Eliz. c. 8 . • . . 270 31 Eliz. c. 12, Appendix .. 45, 270, 361 43 Eliz. c. 6 2£ 1, 53, 165, 175 SlJac. l,c. 21 ..182 2lJac, I.e. 28 • • • • 270 16 Car. 2, c. 7 ..272 29 Car. 2, c. 3 . . . . 5, 13, 33, 155 29 Car. 2, c. 7 ..29 10 & 11 Will. 3, c. 17 .. 272,314 9 Anne, c. 6 .. . . 274 9 Anne, c. 14 .. . . . .. 273,321 10 Anne, c. 26 . . • • 274 8 Geo. 1, c. 2 ..274 9Geo. l,c. 19 • . . • 274 2 Geo. 2, c. 28, Appendix 274, 3.57, 364 6 Geo. 2, c. 35 • • • . 274 8 Geo. 2, c. 24 .. 161 12 Geo. 2, c. 28, Appendix 314, 317, 331, 364 .. 274 275,313, 314 18 Geo. 2, c. 34, Appendix . . 275, 276 , 314, 370, 371 25 Geo. 2, c. 36 . . '330 14Geo. 3, c. 48 • . . . 276 26 Geo. 3, c. 71 ..435 27 Geo. 3, c. 1 . . . . 276 29 Geo. 3, c. 49 . . 30 TABLE OF STATUTES 42 Geo. 3, c. 119 43 Geo. 3, c. 161 . . 46 Geo. 3, c. 14b 49Geo. 3, c. 98 59 Geo. 3, c. 52 3Geo. 4, c. 114 .. 5 Geo. 4, c. 83, Appendix 7 Geo. 4, c. 64 . . . . 7&8Geo. 4, c. 8 7 & 8 Geo. 4, c. 29 7 & 8 Geo. 4, c. 30 . . 9 Geo. 4, c. 14 .. 9 Geo. 4, c. 61 1 & 2 Will.4, c. 22 1 & 2 Will, 4, c. 32 2& 3 Will. 4, c. 120 3 & 4 Will. 4, c. 42, Appendix 3 & 4 Will. 4, c. 48 5 & 6 Will. 4, c. 40 . . 5 & 6 Will. 4, c. 41, Appendix 5 & 6 Will. 4, c. 59 5 & 6 Will. 4, c. 76 6&.7 Will. 4, c. 45 . . 6^7 Will. 4, c. 65 6 & 7 Will. 4, c. 66 .. 2 & 3 Vict. c. 4 2 & 3 Vict. c. 47 2 & 3 Vict. c. 66 .. 2&3Vict. c. 71 3 & 4 Vict. c. 5 3 & 4 Vict. c. 24 5 & 6 Vict. c. 47 . . 5&6Vict. c. 79 5 & 6 Vici. c. 122 .. 6 & 7 Vict. c. 85, Appendix 7 & 8 Vict. c. 3 7 & 8 Vict. c. 30 7 & 8 Vict. c. 87 . . 7 & 8 Vict. c. 109 8 & 9 Vict. c. 20 . . 8 & 9 Vict. c. 47 8 & 9 Vict. c. 57 . . 8 & 9 Vict. c. 74 8 & 9 Vict. c. 109, Appendix . 9 & 10 Vict. c. 23 .. 9 ik 10 Vict. c. 48, Appendix 9 & 10 Vict. c. 62 .. 14 279, 280, 312, 315 151 11 Ivii PAGE 276, 315 .. 31 276 ..276 276 ..277 !277, 315, 373 ..435 302 . 42, 47, 307 45 6 319 . • 434 259 . . 434 375 434 222 9, 277, 320, 377 318 48 434 434 277 .. .333 178,222, 225, 319 ..434 47, 327, 328 .. 278 260 .. 280 434 .. 310 167, 381 .. 279 313 . . 435 280 260, 261 383 .. 280 280 300, 304, 306, 311, 321, 332,334, 336 ..280 280,316 247 c3 Iviii TABLE OF STATUTES. 9 & 10 Vict. c. 93, Appendix 10 & 11 V 11 & 12 V 14 & 15 Y 15 & 16 V 16 & 17 V 16 & 17 V 16 & 17 V 16 & 17 V 16 & 17 V 16 & 17 Y ct. c. 89 ct. c. 29 ct. c. 99 ct. c. 76 ct. c. S3, Appendix ct. c. 59 ct. c. 62, Appendix ct. c. 83, Appendix let. c. 99 ct. c. 119, Appendix PAGE 247,248 189 258 155,167 141, 142, 144, 149, 151, 161 409 156 420 155, 167, 408 307 .. 281,283,326,328,421 INTRODUCTION. Arrangement of the Sub- I The Cause of Rascality Ixii ject lix Giving a Warranty — . Ix Warranty should seldom be given id. When to give a War- in Horsedealing Veterinary Certificates . id. Veterinary Opinion .... Ixiii Difficulties felt by the Veterinary Profession id. ranty Ixi Coiiflicting Certificates as The Cause of Difficulty to Soundness Ixv in Horsedealins .... id. ^ It has been found most convenient to arrange under Arrangement three heads the various subjects treated of in this work. ject. 1st. Contracts concerning Horses, Sfc, which, in- cluding the Bargain and Sale of Clmttels, comprises the law of buying, selling, and exchanging, the doctrine of unsoundness and vice, the law of warranty and false representation ; the privileges and liabilities of Inn- keepers, Livery-stable Keepers, Farriers, Trainers, &c., and hiring, borrowing and carrying Horses. •2d. Negligence in the use of Horses, Sfc, which in- cludes the criminal and civil liabilities incurred through negligent di-i^^ng, or keeping ferocious and vicious ani- mals, and the liabilities of parties in hunting or trespassing on the lands of another. 3d. Racing, Wagej^s and Gaming, which gives a sketch of their history, rise and ja-ogress in this country, and lays down the law on these subjects in connection with the numerous and important alterations made by the "Act to amend the Law concerning Games and INTRODUCTION. Wagers'' (a), the "Act for Legalizing Art Unions" (b), and the recent *'Act for the Suppression of Betting Houses "(c). One great peculiarity attending a portion of this work, is the difficult question of Warranty in connection with Unsoundness. Because at what precise point Soundness ends and Unsoundness begins has always been a subject of dispute both in and out of the Veterinary profession. Therefore, when a Horse warranted sound turns out unsound, great difficulties must frequently arise from the nature of the case. For a Warranty is in the nature of an Insurance, and when a man warrants a Horse sound he insures that of which he can know very little. It is not like the Warranty of manufactured goods, where a man calculates, from the skill and materials employed, the exact amount of responsibility he can take upon him- self. When a man warrants a Horse he does it at his own risk, and of course that risk is very much greater, when he does it upon his OAvn opinion, than when he warrants after the Horse has been pronounced sound by men of Veterinary skill. So that if an action is brought on an alleged breach of warranty, he is, in the former case, almost entirely in the hands of the Veterinary evi- dence produced by the purchaser ; in the latter case he has men of skill to prove the exact state of the Horse at the time of sale. For instance, should the purchaser produce Veterinary evidence to prove that the Horse has a Bone Spavin, and that it must have existed at the time of sale, the vendor, in the latter case, would be able to prove by actual examination that no such Spavin did then exist, and would therefore have a very strong case to go to a Jury. But it appears that soundness is a subject on which, from the nature of the case, a Warrant}' should very seldom be given : for there seems no reason why a person (a) 8 & 9 Vict. c. 109. (b) 9 & 10 Vict. c. 48. (c) 16 & 17 Vict c. 119. IXTRODUCTION. Ixi who buys a Horse should not act as he would in any other transaction where there is risk. For instance, a man buying a house does not merely examine it himself, and then, because he likes it, buy it with a Warranty ; but he take his surveyor with him, who points out all its defects, and then he buys it or not according, to the opinion he may form of its value after these have been taken into consideration. And in all cases where a risk is run and an Insurance eifected, there are regular rules laid down by which such transactions are governed. For where a person insures his life, he submits to a regular medical investigation, and no Company would act in so unbusiness-like a man - ner as merely to take a person's own Warranty that he is sound in health and constitution, and so be put to the proof, in case of his death, that he was not so at the time he gave the Warranty. The best Rule for a man therefore to follow in selling When to a Horse is this : Where the Horse is of no great value, ranty. to refuse a Warranty altogether, and such a Horse is best sold by auction. Where the Horse is of great value, if sound, but that appears doubtful, then to let the pm-- chaser be satisfied by a Veterinary examination, and so take the responsibility upon himself. Where, however, the seller is confident that the Horse is perfectly sound, and that with a Warranty he would fetch a much larger price than without one, he should have him examined and certified as sound, &c., by one or two Veterinary Surgeons of respectability and experience, and then, knowing on what grounds he goes, he may take the risk of warranting him sound. The vexation and difficulty experienced in Horsedeal- The cause of ing arises, in a great measure, from the loose manner in Horse" ^ ^" which such transactions are conducted, and from the '^^aimg. thoughtless manner in which people give Warranties ; and we generally find that the smaller a man's know- d Ixii INTRODUCTION. The cause of Rascality in Horse- dealing. Veterinary Certificates. ledge may be with regard to Horses, the more ready he is to warrant, little knowing the responsibility he is thus fixing upon himself. A dealer, who from the nature of his business must be constantly buying and selling Horses, has an evident ad- vantage over the persons with whom he deals, who pro- bably do not buy or sell Horses half a dozen times in a year, and very few of whom can form a reasonable opinion as to a Horse's value. But the Dealer, to say the least, is a pretty good judge, and, being well ac- quainted with the routine of his business, may, generally, go on in as satisfactory and reputable a manner as any other tradesman, so long as he keeps honest. The fre- quent Rascality in Horsedealing transactions arises from parties making improper use of that superior knowledge which experience alone can supply. Because purchasing a Horse is a very different affau* from buying a manu- factured article ; for, in the latter case, there are certain trade prices, and a corresponding quality of goods, which every man expects, and of which any ordinary man can judge ; and, therefore, as each party has in general a sufficiently competent knowledge, very few disputes arise. When a Horse is free from hereditary disease, is in the possession of his natural and constitutional health, and has as much bodily perfection as is consistent with his natural formation, a Veterinary Surgeon may safely certify him to be sound. But as there is in most of Horses some slight alteration in structure, either from disease, accident or work, a Veterinary Surgeon in giving hit. Certificate had much better describe the actual state of the Horse, and the probable consequences, without mentioning soundness or unsoundness at all, and so let the purchaser buy him or not as he may be advised. Because in such a case a straightforward statement would be made, and a man in the Veterinary profession would not be called upon in an off-hand manner to decide ques- INTRODUCTION. Ixiii tions which are of the greatest nicety, being full of un- certaint}^, and upon which no conclusive decision can safely be arrived at. For we find the greater the diffi- culty, the more likely is a decision (if come to at all) to be the result of a slight preponderance of one over each of many conflicting opinions. "We find that a man will sometimes wan-ant a Horse in Veterinary r. -^T ' • • ' • ir t- 1 Opinion. consequence of a Vetermary opinion given in an oii-nana manner, either without a sufficient examination of the Horse having been made, or sometimes in the face of actual disease ; for the giving a Warranty seems to be considered quite a trifling matter. Thus, in the case of Hall V. JRogerson, tried at the Newcastle Spring Assizes, 1847 (a), it appeared that a witness, who was a Veteri- nary Surgeon, had taken off the Horse's shoes, and exa- mined his feet, when he found a slight Convexity of Sole. The owner then asked him if he would be justified in warranting the Horse as it had been warranted to him ; the witness asked him if he was satisfied the Horse went sound ; he replied, *^ perfectly so :" he then said he was justified. On cross-examination, the witness said, " I pointed out a slight disease in the Sole, but thought he would have been justified in warranting him ; if I had taken the precaution to see him go, things might have been different.'' So that a Veterinary Sui-geon finding that a Horse has a disease in the Sole, and without taking i\\e precaution to see him go, tells the Owner he is justified in warranting. Now the use of the ^novA jus- tified shows that neither of the parties fully knew the amount of liability incun-ed by giving a AYarranty, and it seems as if they had considered it rather an affair of conscience or honour than of legal responsibility. That the Veterinary profession feel the greatest diffi- Difficulties culty in dealing with the question of unsoundness when veterinary called upon for a Certificate on that point, will appear Profession. (a) Hall V. Rogerson, Appendix. IxiV INTRODUCTION. from part of an article on "Soundness as opposed to Lameness," by Mr. Percival, M.R.C.S., editor of the Veterinarian; he writes, "Reluctantly as we enter on this difficult and much debated question, we feel it our duty to make some observations on the subject, though these observations will be rather of a general than of a particular nature, and have especial reference to sound- ness, regarded as the converse of, or opposite state to, lameness. No person buys or sells a Horse without feel- ing some concern as to the soundness of the animal ; the purchaser is apprehensive lest his new Horse should from any cause turn out unserviceable or unequal to that, for the performance of which he has bought him ; the vendor is apprehensive, either lest the animal, in other hands, should not prove that sound and effective servant he con- ceived or represented him to be, or lest some unrepre- sented or concealed fault or defect he is aware the animal possesses may now, in his new master's hands, be brought to light." *' Soundness, as opposed to actual or decided lameness (or as synonymous with good health), is a state too well understood to need any definition or description ; when we come, however, to draw a line between soundness and lameness in their distinguished form — to mark the point at which one ends and the other begins — we meet a diffi- culty, and this difficulty increases when we find ourselves called on to include, under our denomination of unsound- ness, that \v];ich is likely or has a tendency to bring forth lameness. It will be requisite, therefore, for us to say, not simply that every lame Horse is unsound, but to add these words, or who has that about him which is likely on work to render him lame. This will, it is true, open the door to difference of opinion and equivocation. There may, as we have seen, spring up two opinions concerning the presence even of lameness. There will in more cases be two opinions concerning that which is accounted to be the precursor of lameness, or may have a tendency at INTRODUCTION. Ixv some period proximate or remote to produce it; all which differences are best got rid of by reference to the ablest Veterinary advice. There will be less diversity of opinion among professional men than among others, and the more skilful and respectable the professional persons are, the greater will be the probability of a happy unison in their views of the case" («). Mr. Godwin, M.K. C.S., Veterinary Surgeon to the Conflicting Queen, makes the following sensible remarks on the toSounV^ ^^ Certificates given by Veterinary Surgeons to the vendors °^^^- and purchasers of Horses. He says, " It is to be re- gretted that the members of the Veterinary profession have not been taught to adopt some rules for rendering the Certificates they are required to give upon examining Horses as to Soundness, at least somewhat similar in the construction and expression of their opinions, so as to render them more intelligible to the persons who have to pay for them. I am quite aware of the impossibility of attempting to reduce professional opinions to one common standard; but I think that our leading practitioners might meet together, and agree upon some general prin- ciples for their guidance, that would make their Certifi- cates less liable to the censure and ridicule they both merit and incur. The occurrence is by no means un- common for a buyer to send a Horse to be examined by a Veterinary Surgeon, and, not feeling satisfied with the opinion he obtains, to send him to another ; and then comparing the Certificates of the two, and finding them diametrically opposite in their statements, he finally trusts himself to the AVarranty of the dealer, purchases the Horse, and at the end of six months has had to con- gratulate himself upon the possession of a sound animal, and the escape he has had in avoiding two unsound Cer- tificates" {b). (a) The Veterinarian, vol. xviii. p. 366. (&) Ibid., vol. xix. p. 88. e THE LAW OF HORSES, INCLUDING THE BARGAIN AND SALE OF CHATTELS; ALSO THE LAW OF RACING, WAGERS AND GAMING. PART I. CONTRACTS CONCERNING HORSES, &c. CHAPTER I. BUYING, SELLING AND EXCHANGING; THE REQUI- SITES OF THE STATUTE OF FRAUDS; DELIVERY AND PAYMENT, AND THE LAW AS TO SUNDAY DEALING. Bargain, Sale and Ex- change. Bargain 3 Sale and Exchange id. Executed and Executory Contract id. Entire Contract id. Severable Contract id. Verbal Contract id. Written Contract 4 Right of Recision id. Right of Trial id. Buying a Horse under 101. id. Where neither Party can be off 5 Striking a Bargain id. Contract not to be per- formed within a Year . . id. Statute of Frauds, 5.4.... .5 Requisites under s. 4 . . . . 6 Buying a Horse at 101. or upwards id. Statute of Frauds, *. 17 . . id. Extended by 9 Geo. 4, e. 14 id. Requisites under s. 17. . . . id. The Acceptance and Re- ceipt, In what they consist .... 7 General Rule id. Acceptance before Delivery id. Where an Jrticle is selected id. Question for Jury 8 What should be left to them 9 What has been held suf- ficient as an Acceptance and Receipt id. B CONTRACTS CONCERNING HORSES, &C. What has been held insuf- ficient 10 Various Acts of Ownership 11 A ready Money Transac- tion id. Where Buyer offers to re- sell 12 Where Goods are agreed to he resold id. Goods bought out of a larger Bulk id. More Articles sent than or- dered id. The Earnest and Part- Payment. Two Kinds of Earnest. ... 13 Symbolical id. Pecuniary id. Should be retained by Vendor id. The Old Rule 14 Effect of Earnest under Statute of Frauds .... id. Effect of Part-payment .. id. The Note or Memoran- dum IN Writing. Written Agreement id. No particular Form re- quired id. Naines of the contracting Parties 15 Terms of the Contract .... id. The Stamp Act id. Catalogue at a Sale id. Price where agreed upon . . id. Where no Price is agreed upon 16 Contract by Letter id. Sufficient between the Par- ties id. Must express all the Terms of the Agreement id. Mutual Assent 17 When the Contract is com- plete 18 Terms cannot he bound by Parol id. Evidence that Goods are supplied on Credit . • . . id. Matters antecedent to the Writing 19 When admissible id. Memorandum made after Action id. A foreign Contract id. The Signature by the Party to be charged. What is necessary id. Where a Man prints his Name id. The Signature by an Agent. What is necessary 20 Who may be an Agent . . id. How constituted id. Need not he authorized in Writing id. Auctioneer id. Auctioneer^ s Clerk 21 Delivery and Payment. Rights of Property and Possession id. Executed and Executory Contracts id. Property may pass with- out Delivery id. What immediately passes the Property id. Condition as to Price as- certainable id. Effect where not ascer- tainable 22 Risk after Sale id. Goods to he made to Order 23 Goods to be delivered on a future Day id. Delivery and Payment con- temporaneous Acts .... id. Time not the Essence of a Contract id. When nothing is said about the Time of Delivery . . id. Relative Position of the Parties id. Seller's Lien for the Price 24 BARGAIN, SALE AND EXCHANGE. Lien in Case of an Ex- change 24' Conditional Possession .... id. Buyer's Right of Posses- sion where Goods are sold on Credit id. How it may be defeated . . id. Seller's Lien during Posses- sion id. His Right of Stoppage in transitu 25 Where Goods are held to be in transitu id. When anything remains to be done by Seller .... id. Effect of Stoppage in tran- situ id. Goods to be delivered before Payment id. Goods to be paid for before Delivery 26 Price directed to be sent by Post id. Post Office Order id. Forged Bank Note id. Banker's Cheque id. Bill of Exchange id. Debt paid to a Third Party 27 Sunday Dealing. Law of King Athelstan .. id. Statute of diaries 2 id. Sale by a Horsedealer .... id. By an ordinary Person . . 28 A subsequent Ratification . . id. Breach of a Warranty given on a Sunday .... id. BARGAIN, SALE AND EXCHANGE. A BARGAIN or mutual agreement or understanding as to terms between the parties, is implied in every contract for a Sale or Exchange (a). A Sale is a transfer of goods for money, and an Ex- change is a transfer of goods for other goods by way of barter, and in either case the same rules of law are pre- scribed for regulating the transaction (b), A contract may be either executed, as if A. agrees to change Horses with B., and they do it immediately ; or it may be executory, as if they agree to change next week(c). If a person buy a Horse and a Pony together for 100/., the conti-act is entire, as there is no means of de- termining the price of each {d). But if he should purchase them both together, agreeing to pay 30Z. for the Pony, and 70/. for the Horse, the con- tract would be severable 5 and if the seller's title to the Pony should fail, the buyer would be obliged to keep and pay for the Horse {d). Where a bargain is made by word of mouth, all that {a) See 2 Steph. Com. 60. (6) 2 Bla. Com. 446, 447; Anon., 3 Salk. 157 ; Chit. jun. Contr. 4th ed. 332. (e) 2 Steph. Com. 50. {d) See Miner v. Bradley, 22 Pick Rep. 459 (Amer.); Johnson v. Johnson, 3 B. & P. 162; Story on Sales, 164, 190. Bargain. Sale and ex- change. Executed and execu- tory con- tract. Entire con- tract. Severable contract. Verbal con- tract. B 'i CONTRACTS CONCERNING HORSES, &C. passes may sometimes be taken together as forming par- cel of the contract, though not always, because matter talked of at the commencement of a bargain may be excluded by the language used at its termination (/"). But if the contract be in the end reduced into "WTiting, nothing which is not found in the MTiting can be con- sidered as part of the contract (/*). Where one of the parties has the option of completing a contract or agreement at a particular day, the other party has a right of recision at any time before the ratifi- cation by the first (^). Thus where A. proposed to ex- change Horses with B. and give him a specific sum as difference, and B. reserved to himself the privilege of determining upon it by a certain day, and before that da}^ arrived, A. gave notice to B. that he would not confirm the proposed contract, it was held that no action would lie to recover the difference agreed to be paid byA.^^) Where an arrangement is made that the person pro- posing to purchase shall have the right of trial during a certain time, the other party cannot conclude the nego- ciation until the time allotted has elapsed. Thus A., having a Horse to sell, agreed to let B. have him for 30 guineas, if he liked him, and that he should take him a month upon trial. B. accordingly took him, and kept him about a fortnight, and then told A. he liked the horse but not the price. A. desired him, if he did not like the price, to return the Horse, but B. kept him ten days longer, and then returned him. A., however, re- fused to receive him, and brought an action on the con- tract for 30 guineas. It was held by the Court of Common Pleas that he could not maintain such action (i). AVhere a Horse is bought for any price or consideration under the value of 10/., and there is not an actual pay- ment and delivery at the time of sale, and the contract is to be performed within a year, the bargain may be bound by any of the following five methods (It ) ; 1st. An agree- ment to deliver the Horse on a certain day, a day also being agreed upon for payment of the price ; and, in default, the buyer may have an action for the Horse, or {f)Kain v. Old, 2 B. & C. 634. {g) Payne v. Cave, 3 T. R. 148 ; Story on Sales, 99. {h) Eskridge v. Glover, 5 Stew. & Port. (Amer.) 264. (i) Ellis v. Mortimer, 4 B. & P. 257. (/r) Sheppard's Touch. 225. BARGAIN, SALE AND EXCHAXGE. 5 tLe seller for his money ; 2ndl5^ The payment of the whole price, and then if the seller do not deliver the Horse, the buyer may sue him, and recover it ; 3rdl3\ 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 (Z) may be given, and even the smallest sum is sufficient, and in such case the remedies are reciprocal ; 5thly. An actual delivery of the Horse, 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. Where the price is under lOZ., and the seller states what Where nei- he asks for his Horse, and a buyer says he will give it, the t'l^r party bargain is struck, and neither of them are at liberty to be off, provided that immediate possession of the Horse or the money be tendered by either side {m). Anciently, among all the northern nations, shaking of Striking a hands was held necessary to bind a bargain, a custom ^"^sam. which we still retain in many verbal contracts. A sale thus made was called a hand sale, " venditio per mutuam manuum complexionem (w)." This method of striking a bargain is very much practised in the north of England at the present day, both in horsedealing and other trans- actions ; and whatever efficacy it may be supposed to have from custom in small dealings, it certainly does not bind the bargain where the horse is worth lOZ. or upwards, or where the agreement is not to be performed within a year. Where the contract for the sale or exchange of a horse Contract not is not to be performed within a year, the agreement itself ^*^ ^^ P^^;. or some memorandum or note of it must be in writing, in a year. and be signed by the party to be charged or his agent, within the 4th section of the Statute of Frauds {o). The words of the 4th section of the Statute of Frauds statute of applicable to a contract of this description are as follows: Frauds, s. 4. " And be it enacted, that no action shall be brought upon any agreement that is not to be performed within the space of one year thereof, unless the agreement upon which such action shall be brought, or some memoran- dum or note thereof, shall be in writing, and signed by (Z) Earnest, post, 13. 2 Bla. Com. 447. {m) Cooper v. Andrews, (n) 2 Bla. Com. 448. Hob. 41 ; Noy's Max. c. 42 ; (o) 29 Car. 2, c. 3. CONTRACTS CONCERXING HORSES, &C. Requisites under s. 4. Buying a Horse at \0l. or upwards. Statute of Frauds, s. 17. Extended by 9 Geo. 4, c. 14. Requisites under s. 17. the party to be charged therewith, or some other person thereunto by him lawfully authorized." A contract not to be performed within a year is very seldom made in buying or selling a Horse ; and it will be seen that the only distinction between the 4th and 17th sections of the statute is this, that under the 4th section the whole contract must be in writing, including the consideration which induced the party to make the stipu- lation ; whereas under the 17th section it is sufficient if all the terms by which the defendant is to be bound are stated in writing so as to bind him (p). The 17th section of the Statute of Frauds is the foun- dation of the law governing the transfer of goods and chattels w^orth lOZ. or upwards, and among other things the buying and selling of Horses of that value. The words of the 17th section of the Statute of Frauds are as follows : " And be it enacted that no contract for the sale of any goods, wares or merchandizes, for the price of lOl. or upwards, shall be allowed to be good, ex- cept the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in icriting of the said bargain be made and signed by the party to be charged by such contract, or their agents thereunto lawfully authorized." This statute was further extended by 9 Geo, 4, c. 14, s. 7, by which it is enacted, that " the provisions of the Statute of Frauds shall extend to all contracts for the sale of goods to the value of lOZ. 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 com- pleting thereof, or rendering the same fit for delivery." To make the sale of a Horse at 10/. or upwards valid under the 17th section of the statute, the buyer must either actually accept and receive it, or give something in earnest to bind the bargain, or something in part pay- ment ; or the parties to be charged must either them- selves or by their agents make and sign some note or memorandum in Avriting of the bargain. We shall consider — 1st. The Acceptance and Receipt. {p) Marshall v. Lynn, 6 M.& W. 118. BARGAIN, SALE AND EXCHANGE. 7 2iid. The Earnest and Part Payment. 3rd. The Note or Memorandum in writing. 4th. The Signature by the Party to be charged. 5th. The Signature by an Agent. THE ACCEPTANCE AND RECEIPT. To satisfy the Statute of Frauds, there must be an ac- in what they ceptance and a receipt of the goods (q). The acceptance '^°"sist. must be with the intention of taking possession as owner. And the receipt implies delivering. The subject was fully considered by the Court of Exchequer in Farina v. Home{r), and the principles there laid down are cor- rect {q). There is always an acceptance and receipt by the pur- General rule, chaser Avhen the vendor has parted with his lien, because, as was laid down by Mr. Justice Holroyd, " upon a sale of specific goods for a specific price, by parting with the possession the seller parts with his lien. The statute contemplates such a parting with the possession, and therefore, so long as the seller preserves his control over the goods, so as to retain his lien, he prevents the vendee from accepting and receiving them as his own within the meaning of the statute" (s). The acceptance should either be contemporaneous M'ith, Acceptance or take place after the actual receipt. Thus in Saunders \^^ll^ ^^' v. Topp{t), the learned Judges doubted whether in any case there could be an acceptance before delivery. And it certainly would seem that there must first be a de- livery, as the basis of the acceptance. Suppose I go to a Horsedealer and say, "I buy this white Horse for 50Z., and accept him with the intention of taking posses- sion as owner," it certain] y would be competent for me afterwards to change my mind and say I won't have him, although he may have been in the meantime, with- out my knowledge, left at my stable. For the receipt contemplated by the statute, seems to be a receipt on such terms as denotes an acceptance (u). Where however an article is selected by the buyer, very Y^^^^ an ar- •' J 7 J ticle IS se- (?) See per Parke, B., & C. 44; S. C. 3 D. & R. ^^'^^^'^• Saunders v. Topp, 4 Exch. 220. 394. (0 See Saunders v. Topp, (r) Farina v. Home, 16 M. 4 Exch. 394, 395. &W. 119. (u) Farina v. Home, 16 (s) Baldey v. Parker, 2 B. M. & W. 123. 8 CONTRACTS CONCERNING HORSES, &C. slight evidence of its acceptance, wlien received, would be sufficient to show an acceptance, coupled with a re- ceipt. As where the defendant verbally agreed to buy some sheep which he had selected from the plaintiff's flock, and directed them to be sent to his field, which was accordingly done. Two days afterwards he sent his man to remove them from the field to his farm, which was some miles distant, and on theh arrival he counted them over and said, " It is all right." Tt was held that this was evidence for the Jury of his acceptance of the sheep so as to satisfy the Statute of Frauds, notwithstand- ing he afterwards repudiated the purchase, and sent the sheep back to the plaintiff(:r). And Mr. Baron Alder- son remarked on the case as follows : " The previous selection of the sheep is very material, to show the nature of the acceptance when the sheep were received. The defendant says, ' It is all right.' If he had never seen the sheep, and there had been no previous acceptance, his saying ' It is all rio:ht' would have had no effect ; 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 Horse with peculiar spots, the vendee had said, 'All right,' there could be no doubt he would mean, ' This is the Horse 1 bought.' " [y) Question for It is a question for the Jury whether there has been an the Jury, acceptance and receipt. Thus W., Jiving at Hereford, ordered goods (at a price above lOZ.) of A., living at Bristol, and directed that they should be sent by the " Hereford" sloop to Hereford. They were sent accord- ingly, and a letter of advice was also sent to W., with an invoice, stating the credit to be three months. On their arrival at Hereford they were placed in the warehouse of the owner of the sloop, where W. saw them ; and he then said to the warehouseman that he would not take them, but he made no communication to A. till the end of five , months, when he repudiated the goods. A. brought an action against AV. for the price, and it was held that the ' Judge ought not to have told the Jury that there was no acceptance and actual receipt under the Statute of Frauds, but should have left them to find, upon these facts, whe- {x) Sawders v. Topp, 4 (r/) Ibid. 395. Exch. 390. THE ACCEPTANCE AST) RECEIPT. 9 ther or not there had been such acceptance and actual receipt (z). And in all cases of this description it seems that the What should question will be, whether the seller held the subject mat- ^^^ ^^^^^ ^° ter of the sale as owner, or merely as keeper for the buyer. Thus, when A. agreed to purchase of B. a Car- riage then standing in B.'s shop, A. at the same time desiring that certain alterations might be made on it, the alterations having been made, the Carriage was, at A.'s request, placed in the back shop. A. called at the shop on a Saturday, and requested B. to hire a Horse and a man for him, and to send the Carriage to his house on the following day, in order that he might take a drive in it. A. had previouslj^ intimated his intention to take the Carriage out a few times, in order that, as he was going to take it abroad, it might pass the Custom-House as a second-hand Carriage. The Carriage was accordingly sent to and used by A. on the Sunday, A. paying for the hire of the Horse and man. A. afterwards refused to take or pay for the Carriage. It was held, that there was a sufficient acceptance and receipt of the Carriage by A. before the Sunday, within the 17th section of the Statute of Frauds («). In some cases great difficulty arises in deciding whe- ^^^t ^^^^ ther there has been such an acceptance and receipt as sufficient as constitutes a constructive delivery under the statute ; an accept- and we shall see by the following cases that some very ^"ceandre- nice distinctions have been drawn : Elmore v. Stone {b) is a leading case on the subject, and, though its autho- rity was doubted by Mr. Justice Bayley in Howe v. Palmer{c), it will be seen that it may be distinguished from that and all the following cases. In Elmore v. Stone {b) an action was brought for the price of two Horses, and a question arose Avhether there had been a delivery of them under the Statute of Frauds. The plaintiff was a Livery-stable Keeper and Horse dealer. He asked 180 guineas for two Horses, which the defendant at first refused to give, but afterwards sent word that " the Horses were his, but that as he had nei- ther sers^ant nor stable the plaintiflT must keep them at {z) Bushell V. Wheeler, 15 (6) Elmore v. Stone, 1 Q. B. 442 ; Jordan v. Norton, Taunt. 458. 4 M. & W. 160. (c) Howe v. Palmer, 3 B. (a) Beaumont v. Brengeri, & Aid. 324. 5 C. B. 301. B 5 10 CONTRACTS CONCERNING HORSES, &C. livery for him ;^' the plaintiff assented, and removed them out of the sale stable into another. The defendant after- wards refused to take them, and set up for his defence the 17th section of the Statute of Frauds. It was there held that if a man bargains for the purchase of goods, and desires the vendor to keep them in his possession for an especial purpose for the vendee, and the vendor ac- cepts the order, it is a sufficient delivery of the goods within the Statute of Frauds, and that it is no objection to a constructive delivery of goods that it is made by words parcel of the parol contract of sale ; and Chief Justice Mansfield said, " a common case is that of a sale of goods at a wharf or a warehouse, where the usual practice is to deliver the key of a warehouse or a note to the wharfinger, who in consequence makes a new entry of the goods in the name of the vendee, althouo-h no transfer of the local situation or actual possession takes place. After the defendant in this case had said that the Horses must stand at livery, and the plaintiff had accepted the order, it made no difference whether they stood at livery in the vendor's stable, or whether they had been taken away and put in some other stable. The plaintiff possessed them from that time, not as owner of the Horses, but as any other livery stable-keeper might have them to keep. Under many events it might appear hard if the plaintiff should not continue to have a lien upon the Horses which were in his own possession, so long as the price remained unpaid; but it was for him to consider that before he made his agreement. After he had assented to keep the Horses at livery, they would, on the decease of the defendant, have become general assets ; and so, if he had become bankrupt, they would have gone to his assignees. The plaintiff could not have retained them, though he had not received the price." What has But where a purchaser verbally agreed at a public ^^ffi '^^^t^"" I'^^^k^t with the agent of the vendor to purchase twelve bushels of tares (then in the vendor's possession, consti- tuting part of a larger quantity in bulk), to remain in the vendor's possession till called for, and the agent on his return home measured the twelve bushels and set them ap-rirt for the purchaser, it was held by the Court of King's Bench that this did not amount to an acceptance by the latter, so as to take the case out of the 17th sec- tion of the Statute of Frauds. And Mr. Justice Bayley THE ACCEPTANCE AND RECEIPT. 11 said, " In Elmore v. Stone (d) the buj^er directed expense to be incurred, and the directing of that expense was con- sidered 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 the direction of the buyer ; here there is none. But I must say, however, that I doubt the authority of that decision. This case is clearly within the statute (e)." However, the case of Elmore v. Stone {d) seems to have been properlj^ decided, because the plaintiff, being a Livery -stable keeper as well as a Horse dealer^ the buyer, by ordering him to keep the Horses at livery, directed expense to be incurred ; and the plaintiff, by consenting to keep them at livery, relinquished his possession as owner, and held them only as Livery-stahle keeper. In the case of Carter v. Touissant(f), which was a sale Various acts upon credit, the purchaser had exercised various acts of of o'^'^er- ownership over the Horse, W'hich were held to be no ac- ceptance within the statute. It appeared that the Horse was sold by a parol contract for 30/., but no time w^as fixed for the payment of the price. The Horse was fired in the purchaser's presence, and with his approbation, and it was agreed that the Horse should be kept by the vendor for twenty days without any charge being made for it. At the expiration of that time the Horse w^as sent to grass by the direction of the purchaser, and by his desire entered as the Horse of the Vendor. Chief Justice Abbott and Justices Bayley and Holroyd distinguished this case from Elmore v. Stone (g) on the ground that there the plaintiff was both a Liven/ -stable keeper and a Horse dealer ; but that here he was not ; and held that there was no accept- ance of the Horse by the purchaser within the 17th section of the Statute of Frauds. The following case was a ready-money transaction, and A ready the agreement was that the Horse should be taken away ™^P^^ trans- Cr J 3.CtlOIl and the money paid on a certain day ; on that ground there was held to have been no acceptance within the statute, although the purchaser had exercised various acts {d) Elmore v. Stone, 1 B. & Aid. 855 ; 5'. C. 1 D. & 1 Taunt. 458. R. 515. {e) Howe v. Palmer, 3 B. (cr) Elmore v. Stone, 1 & Aid. 324. Taunt. 458. (/) Carter v. Touissant, 2 12 CONTRACTS CONCERNING HORSES, &C. Where a buyer offers to resell. Where goods are agreed to be resold. Goods bought out of a larger bulk. More articles sent than or- dered. of ownership over him. It seems A. entered into a parol agreement to purchase a Hoi'se of B. for ready money, and to take him away at a time agreed upon. Shortly before the expiration of that time A. returned and ordered the Horse to be taken out of the stable, when he and his servant mounted, galloped and leaped him ; and after they had so done, his servant cleaned him, and A. himself gave directions that a roller should be taken off and a fresh one put on, and that a strap should be put upon his neck, which was consequently done ; A. then requested that he might remain in B.'s possession a week longer, at the expu'ation of which time he promised to fetch him away and pay for him ; to this B. assented. The Horse died the day before A.'s return, and he refused to pay the price. It was held by the Court of King's Bench that this was a ready-money bargain, and, as the purchaser could have no right to take away the Horse till he had paid the price, that there was no acceptance of the Horse within the meaning of the Statute of Frauds (^). Where a person, who has contracted for the purchase of a Horse or any other goods, offers to resell them as his own, it is a question for the Jurj'^ whether or not a delivery to and acceptance by himself has been proved (i). An agreement for the resale of goods by the vendee is sufficient evidence of a delivery and acceptance, as against him, to leave to the Jury (A). If a man buys a quantity out of a larger bulk, he does not buy it until it is separated from the rest, and there must be an acceptance after the separation. He must have an opportunity of refusing what the vendor may have selected. The decisions show that the acceptance must be after the purchaser has exercised his option, or has done something to preclude him from so doing (Z). If a person orders one article, and two are put upon him, there is no delivery until both parties agree upon the particular one, so that there may be one which the buyer can call his own. Thus in an action to recover the price often hogsheads of claret, it appeared that the defendant having verbally ordered ten hogsheads of the plaintiff, the (h) Tempest v. Fitzgerald, 3 B. & Aid. 680. (i) Blenkinsop v. Clayton, 7 Taunt. 597. {k) Chaplin v. Rogers, 1 East, 192. (/) Hunt V. Hecht, 22 L.J. 295 (Exch.) Much of what was said in Morton v. Tibbett, 15 Q. B. 428, doubted in this case. THE ACCEPTANCE AND RECEIPT. 13 latter in October sent him fifteen, whereupon the defund- ant wrote to him, stating that he could only take ten on their proving satisfactory, and would hold the other five on account of the plaintiff'. To this the plaintiff answered thus, " "Whatever suits you best is most acceptable to us. The wine is superior ; you will ascertain in the spring if you have room for it." The defendant placed the fifteen hogsheads in the bonded warehouse in his own name, and shortly after tasted and disapproved of the Avine, but gave no notice to the plaintid' of his disapproval until April following, and in May refused to take anj'^ of the wine. It was held by the Court of Exchequer that there was no acceptance of the ten hogsheads, within the 17th section of the Statute of Frauds {m). THE EARNEST AND PART PAYMENT. The civil law called the Earnest " Arrha," and this it Two kinds of interprets to be " emptionis-venditionis, contractse argu- Earnest, mentum (n)," It recognized two kinds of Earnest, — symbolical and pecuniary ; the one being a transfer of something by way of pledge or assurance, and the other being a paj^ment of part of the purchase-money (o). A similar distinction is made in the Statute of Frauds (j9). Thus the buyer must " give something in Earnest to bind the bargain," or " give something in part payment." A symbolical Earnest may be anything used by the Symbolical, parties to bind the bargain. Therefore, a saddle, bridle, horsewhip or currycomb maj" be used for the purpose. A pecuniary Earnest consists of a current coin or sum Pecuniary. of money given in part payment, and its efficacy does not depend upon its value being proportioned to that of the article contracted for. Where the Earnest, whether symbolical or pecuniary, should be re- is delivered to the vendor, it should be kept by Jiim, and tained by the not be returned to the purchaser. For where the pur- ^'^"*l*'^- chaser of a Horse or other goods draws the edge of a shilling over the hand of the vendor, and returns the money into his own pocket, which in the north of Eng- land is called ''striking off" a bargain," it is neither {m) Cunliffe y. Harrison, 20 (o) Code Civile, 1590; L. J. 325 (Exch.); S. C. 6 Vinnius, Com. in Inst. I 3, Exch. 903. tit. 324. (n) 2 Bla. Com. 447. (^o) 29 Car. 2, c. 3, s. 17. u The old rule. Effect of Earnest un- der the Sta- tute of Frauds. Effect of part pay- ment. CONTRACTS CONCERNING HORSES, &C. an Earnest nor a part pajnuent within the Statute of Frauds (g). Where an Earnest "was given on a contract of sale, the old rule was, that if tfie buyer re|)ented of his bargain, he might refuse to fulfil it, upon forfeiting to the seller the whole Earnest money deposited. But if the failure to comply with the contract was on the part of the ven- dor, he was bound to make four-fold restitution to the vendee (r). But under the Statute of Frauds the Earnest binds the bargain, and therefore the property passes in the same way as where there is a part payment. And under such circumstances a count for Goods bargained aiid sold may be supported (s). Thus in an Exchange of Horses, when it was agreed that the plaintiff should pay the defendant four guineas to boot on the 17th December following, and also that the plaintiff should keep the colt till the Septem- ber following, and the defendant, ' ' to make the agree- ment more firm and binding, paid to the plaintiff one half- penny in Earnest of the bargain," it was held that the payment of the halfpenny vested the property of the colt in the defendant (^). Where there was a part-pajonent for some animals, which were deposited with a third party till the full amount was paid, and two of them died, the loss was held to fall on the purchaser (u). THE NOTE OR MEMORANDUM IN WRITING. Written If there has been either an agreement in MTiting, or a agreement, parol agreement which is afterwards reduced into Avrit- ing, by the jmrties, that writing alone must be looked to, to ascertain the terms of the contract (:r). No particular ^^ particular form is necessary to constitute a good form re- Note or Memorandum in wTiting ; and a bill of parcels is quired. sometimes sufficient, where it can be proved that it has been recognized by the other party {y). However, there {q) Blenkinsopv. Clayton, 1 Taunt. 597. (r) Bracton, lib. 2, cap. 27, fol. 62. {s) Dyer v. Cowley, 17 L. J. 360 (Q. B.) {t) Bach V. Owen, 5 T. K 409. ( n) Dyer v. Cowley, 1 7 L. J. 360 (Q. B.) (a-) Per Lord Abinger, C. B., Allen v. Pink, 4 M. & W. 144. (?/) SeeJoJuison \. Dodgson, 2 M. & W. 653. THE XOTE OR MEMORANDUM IN WRITING. 16 are certain requisites which must be contaiued within the instrument, to satisfy the statute. The Note or Memorandum in writing must state who Names of the are the contracting parties (a). partieT. ^°^ It must also state the terms upon which the contract xerms of the is made, because the word bargain means the terms upon contract. which the parties contract. As for instance, in Bristow V. Halford{b), the Memorandum of agreement on the sale of a Race Horse called Baron Biel, was to the effect that the defendant should purchase the Horse for 300/. paid down, lOOZ. in three months, lOOZ. on the Horse winning the Goodwood Cup, and lOOOZ. on his winning the St. Leger Stakes, for which the defendant undertook to enter him. Under the Stamp Act, a Stamp is necessary upon an The stamp agreement, " whether the same shall be only evidence of ^^' a contract, or obligatory upon the parties from its being a written instrument (c)." But this does not apply to the sale of goods (c?). If at an auction the purchaser's name be signed to Catalogue at a Catalogue, it must be connected with or refer to the a Sale, conditions of sale, to make the contract valid (e). And it is not sufficient where they are merely in the room, but not actually attached to the Catalogue, or clearly referred to in it ; and if during the sale they get separated, the signatures made after the separation are unavail- ing (/). The Price when agreed upon is a material part of the Price when bargain, and must be stated in the Memorandum. Thus agreed upon, where on the 13th June a verbal contract was made for the sale of a Horse, warranted five years old, for -200 guineas, and in order to take the case out of the Statute of Frauds, the plaintiff gave in evidence the following letter, written by the defendant on the 18th of June : ' ' Mr. Kingscote begs to inform ^Ir. Elmore, that if the Horse can be proved to be five years old on the 13th of this month, in a perfect satisfactory manner, of course he shall be most happy to take him ; and if not most clearly proved, Mr. K. will most decidedly not have him." Lord Chief Justice Abbott was of opinion that this was (a) Champion v. Plummer, (c) 23 Geo. 3, c. 58. 4 B. & C. 254. Id) Ibid. s. 4. (6) Bristow V. Halford, he- (e) Hinde v. JVhitehouse, 7 fore Lord Campbell, C. J., East, 568. Westminster Sittings at N. (/) Kenworthy v. Scholjield, P., Feb. 1, 1853. 2 B. & C. 945. 16 CONTRACTS CONCERNING HORSES, &C. not a sufficient Note or Memorandum in writing within the Statute of Frauds, and nonsuited the plaintiff'. The Court of King's Bench confirmed the nonsuit, on the ground that the price agreed to be paid constitutes a matericd part of the bargain ; because if it were com- petent to a party to prove by parol evidence the price intended to be paid, it would let in much of the mischief which it was the object of the statute to prevent {g). Where no Where the bargain is for a specific price as in the last agreed-upon ^ase (^), and that price is omitted in the Memorandum, " ' such ]\Iemorandum is insufficient. But if no price is fixed and agreed upon, a note or Memorandum which does not state any will be sufficient, and the law will infer that a reasonable price w^as to be paid {h) ; on the principle that if I take up wares from a tradesman, with- out any agreement as to price, the law concludes that I contracted to pay their real value (i). Contract by ^ person who transacts a pi-oposal by Letter must be considered as renewing his offer every moment, until the time at which the answer is to be sent, and then the con- tract is completed by the acceptance of the offer. For if the law were otherwise, no contract could ever be com- pleted by post (A). Sufficient be- If letters taken together contain a sufficient contract, tween the namely, one that would express all its terms, they would constitute a Memorandum in Tvi-iting within the Statute. And of course therefore the Court may look at all the letters which have passed, for the purpose of seeing whe- ther or not they contain a sufficient contract to take the case out of the Statute (Z). Must express But they must express all the terms of the contract, of the^ agree- Thus where it was clear from Letters and Invoices that the ment. defendant had bought goods from the plaintiff upon some contract or other ; but whether he bought it on a contract to take particular goods seen by him at the warehouse, or whether he had bought them on a particular sample which had been delivered to him, on the condition that they should agree with the sample, or whether the agree- ment was tliat tliey should be delivered within a particular {g) Elmore v. Kingscote, 5 4th Ed. 12; Dunlop v. Hig- B. & C. 583. gins, 12 Jur. 295. {h) Hundley v. M'Laine, 10 (I) Arclier v. Baynes, 5 Bing. 488. Exch. 629 ; Richards v. Por- (i) 2 Bla. Com. 30. ter, 6 C. B. 438. (k) See Chit jun. Contr. sent. THE NOTE OR MEMORANDUM IX WRITING. 17 time, did not appear. It was held, that tliere was no agreement coming within the Statute of Frauds ; because what was in truth the dispute between the parties was not settled by the contract in writing (7w). But as mutual assent is necessary to constitute a bind- Mutual as- ing contract, it is held that where it is sought to establish """' an agreement by means of Letters, such Letters will not amount to an agreement, unless the answer be t-x si?npUce, without the introduction of any new term. Thus in the following case an action of Assumpsit was brought for the price of a Mare sold and delivered, to which the de- fendant pleaded Non assumpsit. It appeared that the de- fendant having seen and ridden a Mare, wrote to the plain- tiff, " I will take the Mare at twenty guineas, of course warranted ; therefore as she lays out, turn her out my Mare." The plaintiff agreed to sell her for the twenty guineas. The defendant afterwards wrote again to him, '' My son will be at the ' World's End' (a public house) on Monday, when he will take the Mare and pay you ; send anybody with a Receipt, and the money shall be paid ; only say in the Receipt sound, and quiet in har- ness.^'' The plaintiff wrote in reply, " She is warranted sound, and qvaet in double harness ; I never put her in single harness." The Mare was brought to the '^ World's End" on the Monday, and the defendant's son took her away without paying the price, and without any Receipt or Warranty. The defendant kept her two days and then returned her as being unsound. The learned Judge stated to the Jury that the question was, whether the de- fendant had accepted the Mare, and directed them to find for the defendant if they thought he had returned her within a reasonable time ; and desired them also to say whether the son had authority to take her without the warranty. The Jury found that the defendant did not accept the Mare, and that the son had not authority to take her aAvay. It was held by the Court of Exchequer, on motion to enter a verdict for the plaintiff, that there was no complete contract in writing between the parties ; that therefore the direction of the learned Judge was right. Also that the defendant Avas not bound by the act of the son in bringfino^ home the Mare, inasmuch as he had thereby exceeded his authority as agent, and conse- {m) Archer v. Baynes, 5 Exch. 630 ; Richards y. Porter, 6 B. & C. 438. Wher. the contract is complete. Terms can- 18 CONTRACTS CONCERNING HORSES, &C. quently that the plaintiff ^vas not entitled to reco- ver (w). A contract is complete upon the posting by one party of a Letter addressed to the other, accepting the terms offered by the latter, notwithstanding such Letter never reaches its destination (o). The terms of a written contract for the sale of goods, not be varied falling witliiu the operation of the Statute of Frauds, by parol. cannot be varied or altered by parol ; and where a con- tract for the bargain and sale of goods w^as made, stating a time for the delivery of them, it was held by the Court of Exchequer that an agreement to substitute another day for that purpose must, in order to be valid, be in writing; and Mr. Baron Alderson said, — " By the 4th section of the Statute of Frauds, it is provided that the contracts therein mentioned shall be in wTiting, otherwise no action shall be maintained upon them. The 17th sec- tion requires that some Note or Memorandum in writing of the bargain before made shall be signed by the party to be charged by such contract, or his agent lawfully authorized. There is undoubtedly a distinction between the two enactments, for by the 4th section the whole contract must be in writing, including the consideration which induced the party to make the stipulaticm by which he is to be bound ; but by the 17th section it is sufficient if all the terms by which defendant is to be bound are stated in writing so as to bind him. Now^ here there is a stipulation which is to bind the defendant, and it is pro- posed to alter that by parol, which cannot be done. It is much better plainly to define what the law is than to attempt to create fanciful distinctions" (p). So also where the day appointed for the delivery of goods was subse- quently discovered to be a Sunday, and it was then by word of mouth agreed between the parties that the de- livery should be made on the " Monday or Tuesday" following : it was held by the Court of Queen's Bench, that the enlargement of time having materially varied the contract, and in fact substituted a new one, an action for nondelivery could not be maintained (5'). Where goods are ordered by Letter, which does not Evidence that goods are supplied on credit. (w) Jordan v. Norton, 4 M. & W. 155. (0) Duncan v. Topham, 8 C. B. 225. (p) Marshall v. Lynn, 6 M. & W. 118. (q) Stead v. Dawhea, 10 A. & E. 57. THE NOTE OR MEMORAXDUM IN AVRITIXG. 19 mention any time for payment, and such letter amounts to a valid contract witliin the Statute of Frauds, parol evidence is admissible to show that the goods were sup- plied on credit (r). But a matter antecedent to and dehors the writing iMatters an- may in some cases be received in evidence, as showing |he%riUng the inducement to the conti'act ; such as a representation of some particular quality or incident of the thing sold. But the buyer is not at liberty to show such a represen- tation, unless he can also show that the seller by some fraud prevented him from discovering a fault which he, the seller, knew to exist (s). In order to sustain an action, there must be a good Memoran- contract in existence at the time of action brought, after actio^n Tlierefore, a Memorandum in writing of a contract after action brought does not satisfy the Statute of Frauds {t). But though an agreement be not in writing, as re- A foreign quh-ed by this statute, it is not absolutely void, as the contract. 4th section relates to the mode of procedure, and not to the contract itself. Therefore, although such contract is void, so far as no action can be brought on it in tliis country, there is nothing in the statute to prevent any foreign Court from giving force to the contract (z<). THE SIGNATURE EY THE PARTY TO BE CHARGED. The Statute of Frauds requh-es that there should be a ^vhat is ne- Note or Memorandum of the contract in A\Titing, signed pessary. by the party to be charged ; and the cases have decided that, although the Signature be in the beginning or middle of the instrument, it is as binding as if at the foot of it, the question being always open to the Jur}'-, whether the part}^ not having signed it regularly at the foot, meant to be bound by it as it then stood, or whether he left it so unsigned, because he refused to complete it (:r) ; and it is only necessary that the Memorandum should be signed by the party against whom it is sought to enforce the contract (y). If a man be in the habit of printing instead of writing Where a man prints (r) Lockett v. Nicklin, 2 Jur. 1021 (C. B.) his name. Exch. 93. (x) Per Lord Abinger, (*) Kam V. Old, 2 B. & C. C. B., Johnson v. Dodgson, 2 634. M. & W. 659. (t) Bill V. Bament, 9 M. & (y) Laythroap v. Bryant, 2 W. 36. Bing. N. C. 744. (u) Leroux v. Brown, 16 20 "What is ne- cessary. Who may be an agent. How con- stituted. Need not be authorized in writing. Auctioneer. CONTRACTS CONCERNING HORSES, &C. his name, he may be said to sign by his printed as well as his written name (z). And an invoice with " Bought of Nori'is & Co." printed on it, which was filled up in the body with the handwriting of Xorris, Avas held to be, for the purpose of the statute, signed by Norris («). THE SIGNATURE BY AN AGENT. The statute requires some Note or Memorandum in WTiting, to be signed by the party to be charged, or his Agent thereunto lawfully authorized, leaving us to the rules of common law as to the mode in which the agent is to receive his authority. Now in all other cases a subsequent sanction is considered the same thing in effect as assent at the time. Omnis ratihabitio retrotrahitur et mandato ceqmparatur ; and the subsequent sanction of a contract, signed by an agent, takes it out of the operation of the statute more satisfactorily than an authority given beforehand. Where the authority is given beforehand, the party must trust to his agent ; if it be given subsequently to the contract, the party knows that all has been done according to his wishes (&). An infant or married woman may be an Agent, their acts in that capacity not being affected by their disalDilities of infancy and coverture respectively (c). An Agent may be constituted either by express ap- pointment or by implication of law arising from the cir- cumstances in which parties are placed (d). The authority of the Agent to sell for his Principal may be conferred by w^ord of mouth (e) ; for it is now clearly settled that the Agent need not be authorized in writing (/). In general an Auctioneer may be considered as the Agent and "Witness of both parties ; but a difficulty arises in the case where the Auctioneer sues as one of the con- tracting parties. The case of Wright v. Dannah(g) {z) Saunderso7i v. Jackson, 2 B. & P. 238. (a) Schneider v. Norris, 2 M. & S. 286. (b) FerBest,C. J., Maclean V. Dunn, 4 Bing. 727. (c) Paley's Principal and Agent, 2 ; Prestwick v. Mar- shall, 7 Bing. 565 ; Prince v. Brunette, 1 Bing. N. C. 438 ; 2 Steph. Com. 56. {d) 2 Steph. Com. 56. (e) Acehal v. Levy, 10 Bing. 378. (/) Per Lord Eldon, Coles V. Trecothick, 9 Vesey, 249 a ; Emmerson v. Heelis, 2 Taunt. 48. (o-) Wright v. Dannah, 2 Camp. 203. THE SIGNATURE BY AN AGENT. 21 seems to be in point ; namely, that the Agent contem- plated by the legislature, who is to bind a defendant by his signature, must be some thu-d person, and not the other contracting party upon the record (h). An entry made in the sale book by the Auctioneer's Auctioneer's clerk, who attends the sale, and as each lot is knocked ^^^'■^• down names the purchaser aloud, and on a sign of assent from him makes a note accordingly in the book, is a Memorandum in writing by an Agent within the sta- tute (i;. DELIVERY AND PAYMENT. The right of property and the right of possession are Rights of distinct from each other; tlie right of possession may be property and in one person, the right of property in another (J). For P°^^^^^^°"- by the law of England, possession is not proof of pro- perty (k). When the contract is executed, the possession and the Executed right are transferred together; where it is executory, the fndexecu- - . •*^, torv con.- right only vests, and the reciprocal property is not in tracts. possession, but in action ; for a contract executed {yvhioh. when it relates to an exchange or sale of goods differs in nothing from an assignment) conveys a chose in pos- session, a contract executory conveys only a chose in action (l). It is clear that by the law of England the sale of a Property may specific chattel passes the property in it to the vendee ^gf|* without without delivery (in). To constitute a sale which shall immediately pass the what imme- pri)perty, it is necessary that the thing sold should be diateiy passes ascertained in the first instance, and that there should be *^^ property. a price ascertained or ascertainable {n). So that there may be a sale of a specific chattel, which shall immedi- ately pass the property, even though the price may have to be afterwards ascertained (o). Where, in an agreement of sale, a condition as to the Condition as to price as- {h) Far ebrotherv. Simmons, {I) 2 Steph. Com. 50. certainable. 5 B. & Aid. 335. {m) See per Parke, J., (/) Bird V. Boulton, 4 B. & Dixon v. Yates, 5 B. & Adol. Adol. 443 ; and see Auctions 390. and Repositories, post, 33. (n) Judgment of C. P., Lo- (j) Tarlingv. Baxter, 6 B. gan v. Le Mesurier, 11 Jur. 6 C. 364. 1094. {k) See per Best, C. J., (o) See Logan v. Le Mesu- Williams v. Barton, 3 Bing. rier, 11 Jur. 1091 (C. P.); 145. Chit. jun. Contr. 4th ed. 332. 22 CONTRACTS CONCERNING HORSES, &C, Effect •where not ascer- tainable. The risk after sale. price is annexed, and the fulfilment of it is ascertainable, such condition would appear to be good ; as where the plaintiff purchased a Horse for 55Z., and the defendant warranted him sound, and agreed to give back ll. if the Horse did not bring the plaintiff 41. or 61. profit (p). But if such condition is not ascertainable, of course it cannot be enforced, and then it becomes an immaterial part of the agreement. Thus where a Horse was sold to the plaintiff for 100 guineas, " and 10/. more if the Horse suited him, '^ Lord Tenterden said, "If the buyer had kept the Horse, I do not see how the seller could have maintained any action to recover the lOZ. The buyer might have said, ' the Horse does not suit me, but I choose to keep him nevertheless (q).' " So also where the plaintiff agreed to purchase a Horse for 63Z., and "if the Horse was lucky, he would give the de- fendant 51. more, or the buying of another Horse," it was held that this part of the agreement was too vague to be legally enforced, and did not amount in point of law to a promise. Thus, Lord Tenterden said, " The re- maining part of the consideration, that if the Horse proved lucky the plaintiff should give 5Z. more, or the buying of another Horse, is much too loose and vague to be considered in a Court of law. Who is to say under w^hat circumstances a Horse shall be said to have proved * lucky?' The price at w'hich the Horse sold would not determine it. Suppose a year passed before the ad- vanced price was obtained, it might then still be a ques- tion, whether the bargain had been lucky or not. But admitting that this could be ascertained, how could the contract to give 5/., or the buying of another Horse, be enforced ? It is at the option of the contracting party to do either ; and what could be made of an action for not buying another Horse ? The party sued might say he was ready to buy, but too much w^as asked (r)." The rule of law is, that where there is an immediate sale, and nothing remains to be done by the vendor as between him and the vendee, the property in the thing sold vests in the vendee, and then all the consequences resulting from the vesting of the property follow^, one of which is, that if it be destroyed, the loss falls upon the (p ) Bhjth v. Bampton, 3 Bing. 472. {q) Cave V. Coleman, 3 M. & Ry. 3. (?■) GutJiing v. Lynn, 2 B. & Adol. 234. DELIVERY AND PAYMENT. 23 vendee (s). Thus in Noy's Maxims it is said, " If the Horse die in my stable between the bargain and the de- livery, I may have an action of debt for my money, be- cause, by the bargain, the property was in the buyer(^)." Where goods are to be made to order, as on a contract Goods to be for building a carriage or a ship, it is a question of in- '^^^^ ^° tention, to be inferred from the circumstances, whether the property passes before the completion of the article or not(M). A contract for the sale of goods to be delivered at a Goods to be future day, is not invalidated by the cu-cumstance that, delivered on at the time of the contract, the vendor neither has the ^ ^^^^"^^ '- goods in his possession, nor has entered into any contract to buy them, nor has any reasonable expectation of be- coming possessed of them by the time appointed for de- livering them, otherwise than by purchasing them after making the contract (a:). "Where there is a sale of an ascertained article, and no Delivery and provision is made to the contrary, the dehvery and pay- payment con- ment are to be contemporaneous acts (z/). ouTacts"^ In a sale of chattels. Time is not of the essence of the rj,-^ ^ ., ,..•',, lime not the contract, unless it is made so by express agreement, than essence ot a which nothing can be more easy, by introducing condi- contract. tional words into the bargain (z). Where goods are sold, and nothing is said as to the time "^Miere no- of the delivery, or the time of payment, and every thing ^'?^"n is said the seller has to do with them is complete, the property time of dV vests in the buyer, so as to subject him to the risk of any livery. accident which may happen to the goods, and the seller is liable to deliver them wheneA^er they are demanded, upon payment of the price, but not before (a). A vendor may have a qualified right to retain the goods Relative po- unless payment is duly made, and yet the property in these ^i"^." of the goods may be in the vendee (Z>). Thus it is said,' in Noy's P^"^^^^^- Maxims (^), " If I sell my Horse for money, I may keep (s) FerBayley, J., Tar ling Noy's Maxims, cap. 42; 2 V. Baxter, 6 B. & C. 36-t. Bla. Com. 447 ; Year Book, (t) Noy's Maxims, 208. Easter Term, 5 Edw. 4, foL (m) Read v. Fairbanks, 22 20. L. J. 206 (C. P.) (z) Per Cur., Martindale v. (ar) Hihblewhite v. McMo- Smith, 1 Q. B, 395. rine, 5 ^I. & W. 462. (a) Bloxam v. Sanders, 4 {y) Pettitt v. Mitchell, 5 B, & C. 941. Sco N. IL 740; Chase v. (b) Tarlins v. Baxter, 6 B. Westmore, 5 M. & S. 189; & C. 364. Cowper V. Andrews, Hob. 41 ; 24 CONTRACTS CONCERNING HORSES, &C. Seller's lien for the price Lien in case of an ex- change. Conditional possession. Buyer's right of uoi.session where j^oods are :-old on credit. Hov it may he defeated. Seller's lien during pos- session. him until I am paid, but I cannot have an action of debt until he is delivered ; 5^et the property of the Horse is, by the bargain, in the bargainee or buyer. But if he do pre- sently tender me my money, and I do refuse it, he may take the Horse, or have an action of detainment." And if the buyer in such case take away the Horse before the price is paid, the seller may have an action of Trespass, or an action of Debt for the money, at his choice (b). The seller's right in respect of the price is not a mere lien which he will forfeit if he parts with the possession, but grows out of his original ownership and dominion, because payment or a tender of the price is a condition precedent on the buyer's part, for until he makes such payment or tender he has no right to the possession (c). In the case of an exchange of two Horses for one, a delivery of one of the two would not preclude the owner's lien on the other till the delivering of the one Horse for which the two were to be exchanged {d). And whatever conditional or temporary arrangement be made as to possession, so long as it is consistent with an intention to retain a special right to detain the goods, the seller will not forfeit his lien. Thus if A. purchase a Horse of B., which is not to be delivered until the price be paid, but B. in the meantime allows A. to take the Horse for a day or a week to drive, the lien of B. is not determined, but merely suspended during the time for w^hich he allows A. to take the Horse (e). If goods are sold upon credit, and nothing is agreed upon as to the time of delivering them, the buj^er is immediately entitled to the possession, and the right of possession and the right of property vest at once in liim(/). But his right of possession is not absolute ; it is liable to be defeated if he becomes bankrupt or insolvent before he obtains possession [g). The sale of a specific chattel on credit, though that credit may be limited to a definite period, transfers the property in the goods to the vendee, giving the vendor a {b) Manbtj v. Scott, 1 INIod. 137; 1 Dyer, 30 a, pi. 203. (c) Bloxam v. Saiiders, 4 B. & C. 948. (d) See Hanson \. Meyer, 6 East, 621. (e) See Story on Sales, 236 ; Reeves v. Capper, 5 Bing. N. C. 1 36. (/) Bloxam v. Sanders, 4 B. & C. 948. (g) Ibid. ; Toolce v. Hoi- lingsivorth, 5 T. R. 21J. DELIVERY AND PAYMENT. 25 right of action for the price, and a lien upon the goods, if they remain in his possession, till that price be paid, but default of payment does not rescind the contract (A). The seller of goods has not onlj^ a lien on them for the His right of price, whilst they are in his possession, but when the stoppage i7i price is unpaid, he may, after he has parted with the pos- session of the goods, and whilst they are in transitu, re- take them in the event of the Bankruptcy or Insolvency of the buyer (z). Stoppage in transitu, as its name imports, can only When goods take place whilst the goods are on their way to the buyer ; ^^^;^^^^^^*° ^^ and the rule to be collected from the cases is, that they are in transitu so long as they are in the hands of the carrier as such, and also so long as they remain in any place of deposit connected with their transmission (A). And so long as there remains any thing to be done by When any the seller, or at his risk or charge, the transit is incom- thiig re- plete. Thus where corn was to be conveyed from the ^one by warehouse at the railway to the buyer's waggons, at the seller. expense of the seller, it was held, even after it had reached the station, to be still in transitu (I). What the effect of stoppage in transitu is, whether en- EflFect of tirely to rescind the contract, or only to replace the seller stoppage tn J . . -Pill I'll transitu. in the same position as it he had not parted with the pos- session, and entitle him to hold the goods until the price be paid, is a point not yet finally decided, but the latter view of the case seems to be the correct one (m). In a contract for the sale of goods, "the goods to be Goods to be delivered at the works forthwith, and to be paid for f^^^J^ly^ ^^' within fourteen days from the date of the contract," the ment. delivery of the goods is a condition precedent to the right of the seller to claim the payment of the purchase money. The use of the word "forthwith" shows that the goods ought to have been, and that the parties intended that they should be, delivered at some time within the fourteen days(w). (h) See per Cur., Martin- Cases, 433 a. dale v. Smith, 1 Q. B. 395; (l) Ex parte Cross, re Pigot, Tarling v. Baxter, 6 B. & C. Court of Bankruptcy, 17L. T. 362. 160. {i) See Chit. jun. Contr. (tw) Wentworth v. Outh- 4th. ed. 377 ; Lickharrow v. waite, 10 M. & W. 452. Mason, 2 T. R. 63. {n) Staunton v. Wood, 16 {k) See 1 Smith's Leading L. T. 486 (Q. B.) 26 CONTRACTS CONCERNING HORSES, &C. Goods to be paid for be- fore deliverj- Price di- rected to be sent bj post. Post office order. Forged bank note. Banker's cheque. Bill of ex- change. If there be an express contract between the parties, that the goods shall be paid for before delivery, an action may be brought for the money before the goods are de- livered. Thus if A. undertakes to pay lOOl. on the 1st of Januarj^ for a Horse purchased by him, and B. agrees to deliver it on the 1st of April following, B. may in the mean time maintain an action against A. for the money, without delivering or offering to deliver the Horse (o). If the buyer is directed to send the price by Post, or if it has been the usual practice between the parties to do so (p), and a letter containing the money properly di- rected (q) and posted (r) is lost, the debt is extinguished, and the seller must bear the loss(5). Where the defendant, in answer to a letter demanding payment, sent a Post Office Order, in which the plaintiff was described by a WTong Christiau name, and the plain- tiff kept it, but did not cash it, although he was informed at the Post Office he might receive the money at any time by signing it in the name of the payee, it was held by the Court of Exchequer that this was no evidence of payment (^). If payment be made m forged Bank of England notes, it may be treated as a nullity, and an action be maintained by the creditor against the debtor for the money [u). If a creditor is offered cash in payment of his debt, or a cheque upon a Banker, and he prefers the latter, this does not discharge the debtor if the cheque be dis- honoured ; although the agent fails with a balance of his principal in his hands to a larger amount [x). If a creditor prefers a Bill of Exchange accepted by a stranger to ready money from his debtor, he must abide the hazard of the security he takes {y). (o) See Petfitt v. Mitchell, 5 Sco. N. R. 740 ; Thorpe v. Thorpe, 1 Lord Raym. 665 ; S. C. 1 Saik 171; and see Add. Contr. 274. (jo) Warwicke v. Noakes, Peake, N. P. 98. (q) Walter v. Haynes, R. & M. 149. (r) Hawkins v. Rutt, Peake, N. P. 248. (5) Kington v. Kington, 11 M. & W. 233. {t) Gordon v. Strange, 1 Exch. 477. (m) See Chit. jun. Contr. 4th ed. 643. (cr) Everett v. Collins, 2 Camp. 515. {y) See per Lord Ellen- borough, Everett v. Collins, 2 Camp. 516; and see Chit, jun. Contr. 4th ed. 661. DELIVERY AND PAYMENT. 27 By the order of the creditor, a debt may be paid to a Debt paid to thii-d party, who, if he take payment in any other way ^ ^'"'^'^ party, than in money, or if he give the debtor further time, without the knowledge of the creditor, he does it at his peril (z). SUNDAY DEALING. By a law of King Athelstan, all " merchandizing on Law of King the Lord's day '' is prohibited, and it is thus laid down : Athelstan. " Die autem Dominica nemo mei'caturam facito ; id quod si quis egerit, et ipsa merce, et 30 prcBterea solidis mulc- tator" (a). And by 29 Car. 2, c. 7, s. 1, which is "An Act for statute of the better Observation of the Lord's Day," it is enacted, Charles 2. " that no tradesmen, artificer, workmen, labourer, or other person whatsoever, shall do or exercise any ivorldly labour, business or work of their ordinal^ callings upon the Lord's Day or any part thereof (works of necessity and charity only excepted), and every person being of the age of fourteen years or upwards oflending in the premises shall for every such ofience forfeit the sum of OS. ; and that no person or persons whatsoever shall pub- licly cry, show forth or expose to sale any wares, merchan- dizes, fruit, herbs, goods or chattels whatsoever upon the Lord's Day or any part thereof, upon pain that every person so offending shall forfeit the same goods so cried or showed forth, or exposed to sale." A Horsedealer cannot maintain an action upon a con- Sale by a tract for the sale and warranty of a Horse made by him ?°^^^' upon a Sunday. The law on this subject was laid down by the Court of King's Bench in Fennell v. Ridler (b) on a motion for a new trial, and Mr. Justice Bayley de- livered the following judgment : " This Avas an action upon the warranty of a Horse. The plaintiffs were Horse- dealers, and the Horse was bought and the warranty given on a Sunday; and the only question was, whe- ther, under the 29 Car. 2, c. 7, the purchase was illegal, and the plaintiffs precluded from maintaining the action. That the purchase of a Horse by a Horsedealer is an ex- (2) Cliit jun. Contr. 4th (a) 2 Inst. cap. 31, p. 220. ed. 643 ; Smith v. Ferrand, 7 (b) Fennell and another v. B. & C. 19. Ridler, 5 B. & C. 406. c2 28 CONTRACTS CONCERNING HORSES, &C. ercise of the business of his ordinary calling no one can doubt. The act does not apply to all persons, but to such only as have some ordinary calling. In JDrury v. De la Fontaine (d) Lord Mansfield, C. J. (after the court had taken time to consider), laid it down, that if any man in the exercise of his ordinary calling make a con- tract on a Sunday, that contract would be void (and the case before him was a private contract for the purchase of a Horse), but he showed that that case was not within the statute, because no one of the parties was in the ex- ercise of the business of his ordinary calling. His expres- sion, that the contract would be void, probably meant only that it would be void so as to prevent a party who was privy to what made it illegal, from suing upon it in a court of law, but not so as to defeat a claim upon it by an innocent party ; and so it was considered by this Couj"t in Bloxsome v. Williams" (e). Where neither parties are Horsedealers, a contract be- tween them for the sale of a Horse is good, though made on Sunday ; and this w^as recognized by Mr. Justice Bayley in the last case, as having been distinctly laid doAvn by Lord Mansfield in Drury v. De la Fontaine (d). Where a bargain for some cattle was made, and the ratification of price agreed on, on a Saturday evening, subject to the defendant's approval of the beasts upon inspection next morning ; and accordingly on Sunday the defendant in- spected and approved them, and afterwards kept them for some time and promised to pay for them ; it was held, that although the original contract was on Sunday, yet as they continued in the possession of the defendant, who afterwards promised to pay for them, this subsequent promise was sufficient on a quantum meruit, or as a rati- fication of the agreement of the Saturday {/), But a party cannot sue on a breach of warranty if he take it on a Sunday from a person he knows to be a Horsedealer . However, where an innocent party brings an action on the breach of a w-arranty given to him by a Horsedealer on a Sunday, it is not competent for the de- fendant to set up his own breach of the law as an answer to the action : and this was so held in the case of Blox- An ordinarj' person. Subsequent Breach of warranty given on a Sunday. {d) Brury v. De la Fontaine, 3 B. & C. 232. (e) Bloxsome v. Williams, 1 Taunt. 135 ; ^. C. 3 B. & C. 232. (/) Williams Bing. 653. v. Paul, 6 SUNDAY DEALING. 29 some V. Williams (g), where an action was brought on tlie warranty of a Horse, and an objection was taken that it had been given on a Sunday. It appeared that the de- fendant was a coach proprietor and Horsedealer, and that the plaintiff's son was travelling on a Sunday in the defendant's coach, and while the Horses were changing, he made a verbal bargain with the defendant for the Horse in question, for the price of thirty-nine guineas ; the latter warranted the Horse to be sound, and not more than seven years old. The Horse was delivered to the plaintiff on the following Tuesday, and the price was then paid ; there was nothing in evidence to show that the plaintiff's son knew at the time when he made the ba^ain that the defendant exercised the trade of a Horse- dealer. The Horse was unsound, and seventeen years old. It was objected, on the part of the defendant, that the plaintiff could not recover, on the ground that the bargain having been made on a Sunday was void, within the 29 Car. 2, c. 7, s. 2. The learned judge overruled the objection, and the plaintiff obtained a verdict for the price of the Horse. The Court of King's Bench dis- charged a rule for a new trial, and Mr. Justice Bayley said, '' In this case there was no note in writing of the bargain, and on the Sunday all rested in parol, and no- thing was done to bind the bargain. The contract, there- fore, was not valid until the Horse was delivered to and accepted by the defendant. The terms on which the sale was afterwards to take place were only specified on the Sunday, and those terms were incorporated in the sale made on the subsequent day." {g) Bloxsome v. Williams, 1 Taunt. 135 ; 5. C. 3 B. & C. 232. CONTRACTS CONCERNING HORSES, &C. CHAPTER II. HORSEDEALERS, REPOSITORIES AND AUCTIONS. HORSEDEALER. Definition of a Horsedealer . 30 A Seller on Commission . . id. The Proprietor of Al- dridge's 31 Duty payable by a Horse- dealer id. Horsedealer to keep a Book id. Decision of the Assessor . . id. Repositories and Auctions. An Auctioneer 31 Liable to an Action for Neg- ligence 32 Horse sent to a Repository . id. Auctioneer' s Possession . . id. Goods privileged from Dis- tress id. His Right to remain on the Premises id. Auctio?ieer or Clerk Agent of both Parties 33 Purchasers' Name signed to a Catalogue id. Printed Particulars of Sale id. An incorrect Catalogue . . id. A limited Warranty .... 34 Where it applies only to Soundness 35 Trial of a Horse warranted quiet in Harness id. Notice of the Conditions of Sale id. Where a Bidder may re- tract 36 Warranty of Ownership . . 37 Auctioneer not disclosing his Principal id. Puffing id. Person employed to bid . . 38 Purchaser may transfer his Bargain 39 Where Party refuses to take Goods id. Goods resold without com- vmnicating with Pur- chaser id. Auctioneer proper party to receive the Price id. Has no Authority to re- ceive a Bill of Exchange 40 He is Stakeholder for both Parties id. When the Price vests in the Vendor id. Price obtaiiied by Princi- pal 's Fraud id. HORSEDEALER. Definition of A Horse-dealer, strictly, is a person who by his traffic dealer'^' " distributes" Horses {a). And by 29 Geo. 3, c. 49, s. 5, he is clearly defined to be a peison who '' seeks his living by buying and selling Horses («)." It has not however been decided, whether a person who, for Commission, sells by auction or private con- (a) Allen v. Sharp, 2 Exch. 357. A seller on Commission. HORSEDEALER. 31 tract, tne norses of others, is a Horse-dealer within the Assessed Tax Acts. The Judges at Serjeants' Inn held the proprietor of The Pro- Aldridge's Repository to be a Horse-dealer. When the Aidridge's. case came before the Court of Exchequer, Mr. Baron Parke, with whom Mr. Baron Alderson agreed, said, " I am by no means prepared to say that the decision of the Judges, as to the construction of the w^ord ' Horse- dealer' in these statutes, was wrong; if I were forced to give an opinion, it might be in accordance with theirs (6)." Under the schedule of the duties payable by Horse- Duty pay- dealers, " Every person who shall use or exercise the Horsedeaier. trade and business of a Horse-dealer within the cities of London and Westminster, and the liberties of the same respectively, the parishes of St. Mary-le-bone and St. Pancras, in the county of Middlesex, the AVeekly Bills of Mortality, or the borough of Southwark, in the county of Surrey, is to pay the annual duty of 201. ; and in any other part of England or in Wales, the town of Berwick- upon-Tweed, the annual duty of 10/. (c)." The 43 Geo. 3, c. 161, s. 43, requires every Horse- Horsedeaier dealer to enter in a book an account of the number of ^Q^|f ^^ ^ Horses kept by him, whether for sale or use, and to w^hat duty the same are liable, under a penalty of 50Z. An assessment under the Assessed Tax Acts is final Decision of and conclusive, unless appealed against in the manner *^^ assessor. prescribed by 43 Geo. 3, c. 99, s. 24. Therefore, where a party w^as assessed to the duty imposed on " Horse- dealers," it was held that the decision of the assessor, that the party was a Horse-dealer, however erroneous, could not be questioned in an action (d). REPOSITORIES AND AUCTIONS. An Auctioneer is solely the agent of the seller of the An auc- goods, until the sale is effected, and then he becomes also Pioneer. the agent of the buyer for particular purposes (e). For when he signs the printed particulars of sale, he signs them as the agent of the purchaser (J). (b) Allen v. Sharp, 2 Exch. Williams v. Millington, 1 H. 352, 366. Bla. 81 ; Emmersou v. Heelis, (c) 43 Geo. 3, c. 161, Sched. 2 Taunt. 38. (H). (/) See per Rolfe, B., {d) Allen v. Sharp, 2 Exch. Eden v. Blake, 13 M. & W. 352. 619. (e) Story on Sales, 61 ; 32 CONTRACTS CONCERNING HORSES, &C. Liable to an action for negligence. Horse sent to a Reposi- tory. Auctioneer's possession. Goods privi- leged from distress. His right to remain on the premises, And an action on the case lies against an Auctioneer employed to conduct a sale for negligence in his manage- ment of it. As where the seller had to make the pur- chaser compensation, in consequence of the property having been improperly described by the Auctioneer who had been employed to prepare particulars, and sell the pro- perty (^). _ Where a Horse is sent to a common Repository for the sale of Horses, an authority to sell is implied, although no authority was ever given in fact, and the ow^ner will be bound by a sale to a bond fide purchaser, although made without his express consent [h). Where a Horse is sold at a Repository, the possession is in the Auctioneer, and it is he who makes the contract. If the Horse should be stolen he may maintain an indict- ment, and he has such a special property as to maintain an action against the buyer for Goods sold and deli- vered(i). But where, as in the north of England, there is a sale by auction of Horses and cattle on the owTier's premises, it is doubtful whetber the Auctioneer has such an interest in them as to recover the price (k). Goods sent to an Auctioneer to be sold on premises occupied by him are privileged from distress for rent (Z) ; although he may sell in a place let to him merely for the occasion, or by a person without authority, or the occupation has been acquired by the Auctioneer by any act of trespass (m). An Auctioneer, who is employed to sell goods by public auction, has not such an interest as will make the licence to enter the premises iiTCVocable. Therefore where the owner of the premises revoked his consent to the Auc- tioneer remaining there, it was held that he had no right to continue there, though he had incurred expenses in allotting the goods, and though he remained only to complete the sale by delivering the goods to the pur- chasers (w). {g) Parker v, Farebrother, 2 Weekly Reporter, 370, (C. B.) {h) See Pickering v. Busk, 15 East, 38, 45; Chit, jun., Contr. 4th ed. 196. (j) See IVilliams v. Milling- ton, 1 H. Bla. 85. (k) See per Wilson, J., JVilliams v. Millington, 1 H. Bla. 86. (Z) Adams v. Grave, 1 C. & M. 380 ; Williams v. Holmes, 22 L. J. 283. (Exch.) (m) Broivn v. Arundell, 10 C. B. 54; S. C. 16L.T. 126. (w) Taplin v. Florence, 10 C. B. 744; see S. C. 15 Jur. 402. REPOSITORIES AND AUCTIONS. 33 After a sale is effected, the Auctioneer may in general Auctioneer be considered as the agent and witness of both the parties a^ent'^of to a contract ; but a difficulty arises in the case where both parties, the Auctioneer sues as one of the contracting parties (o). However, an entry made in the sale book by the Auc- tioneer's clerk, who attends the sale, and as each lot is knocked down names the purchaser aloud, and on a sign of assent fi-om him makes a note accordingly in the book, is a memorandum in writing by an agent within the Statute of Frauds (/?); for the clerk is not identified with the Auctioneer (who sues), and in the business which he performs of entering the names, &c., he is impliedly authorized by the persons attending the sale to be their agent (g-). But if the purchaser's name be signed to a Catalogue, Purchaser's it must be connected with or refer to the conditions of "o^^Catl"^ sale to make the contract valid (r) ; and it is not sufficient logue. if they are even in the same room, so long as they are not actually attached to the Catalogue, or clearly referred to in it ; and if during the sale they get separated, the signatures made after separation are unavailing (s). It is a useful and proper general rule that an Auc- Printed Par- tioneer by parol explanation at the time of sale shall not gai^'^'^^ "^ be suffered to vary from the terms of the Printed Parti- culars. This rule is attended with no hardship, because it would be easy to obviate any difficulty in case the article sold be different from the description ; Guniiis v. Echart{t), Poivellv. Edmunds{u), and many other cases collected in Mr. Phillipps's book on Evidence, show the principle to be, that a written instrument signed with the purchaser's name is the instrument at which we are to look to see what is the contract between the parties {x). But when the contract is not in writing, a mistake in An incorrect the Catalogue may be explained by the Auctioneer. Catalogue. Thus in the printed Catalogue of articles intended to be sold by auction, a dressing-case was described to have silver fittings, but previously to the sale of it the Auc- (o) Wright V. Dannah, 2 («) Kenworthy v. Scholfield, Camp. 203. 2 B. & C. 9\5. {■p) 29 Car. 2, c. 3, and see {t) Gunnis v. Echart, 1 H. ante, p. 14. B. 289. {q) Bird v. Bolton, 4 B. & (u) Powell v. Edmunds, 12 Adol. 443. East, 6. (r) Hinde v. Whitehouse, 7 (x) Shelton v. Livius, 2 C. East, -568. & J. 416. c 5 CONTRACTS CONCERNING HORSES, &C. tioneer stated publicly from his box, and in the hearing of the defendant, that the Catalogue was incorrect in stating the fittings of the dressing-case to be of silver, and that it would be sold as having plated fittings ; but no alteration was made in the Catalogue. The defendant afterwards bid for the dressing-case, and became the pur- chaser. In an action brought by the Auctioneer to re- cover the price of the dressing-case, which was less than 10/., it was held that parol evidence of the statement of the Auctioneer at the time of the sale was admissible, the contract not being in writing. And Mr. Baron Alderson said, *'The sole question is, what were the terms upon which this article was sold. Are those terms in writing? If they are, they cannot be varied by parol testimony ; but if they exist only in parol, they of course may be varied by parol ; and as it appears that the article was not sold under an agreement in writing, it was for the Jury to say whether the contract existed in the printed particulars alone, or partly in them and partly in parol, namely, that the Auctioneer stated that there was an inaccuracy in the particulars, which declaration was heard by the defendant, who after hearing it bid for the article. This the Jury have found (y)." By the conditions of sale at Repositories and public auctions a specified short time is usually allowed, Avithin which the purchaser must give notice of any breach of warranty ; and if he neglect to do so, he has no remedy unless such condition has been rendered inoperative by fraud or artifice. This subject was fully considered by the Court of King's Bench in the following case : — A Horse was bought by private contract at a Repository, w^arranted sound. At the time of sale there was a board fixed on the wall of the Repository having certain rules painted upon it, one of which was that a warranty of soundness then given, should remain in full force until noon of the daj' following, when the sale should become complete and the seller's responsibility terminate, unless a notice and Veterinary Surgeon's certificate of unsoundness were given in the meantime. The rules were not particu- larly referred to at the time of this sale and warranty. The Horse proved unsound, but no complaint was made till after twelve on the following day. The unsoundness was of a nature not likely to be immediately discovered. Some (y) Eden v. Blake, 13 M. & \V. 614-. REPOSITORIES AND AUCTIONS. 35 evidence was given to show that the defendant knew of it, and the Horse w'as shown at the sale under circum- stances favourable for concealing it. After verdict for the plaintiff, it was held that there was sufficient proof of the plaintiff having had notice of the rules at the time of sale to render them binding on him ; also that the rule in question was such as a seller might reasonably impose, and that the facts did not show such fraud or artifice in him, as would render the condition inoperative ; and Mr. Justice Littledale observed, " The warranty here was as if the vendor had said, ' after twenty-four hours I do not warrant ;' such a stipulation is not unreasonable (z).'' If a Horse sold at a public auction be warranted sound Where it ap- and six years old, and it be one of the conditions of sale soundness*^ that it shall be deemed sound unless returned in two days, this condition applies only to the warranty of soundness. Therefore where a Horse sold with such warranty was discovered to be twelve years old ten days after sale^ and was then offered to the seller, who refused to take him, it was held by the Court of King's Bench that an action might be maintained by the buyer against the seller, and Lord Kenyon said, " The question turns on the meaning of this condition of sale, and I am of opinion that it must be confined solel}'' to the circumstance of unsoundness. There is good sense in making such a condition at public sales, because, notwithstanding all the care that can be taken, nianj^ accidents may happen to the Horse between the time of sale, and the time when the Horse may be returned, if no time were limited. But the circumstance of the age of the Horse, is not open to the same diffi- culty («)." By the rules of some Repositories every Horse sold, war- Trial of a ranted quiet in harness, is, in case of dispute, to be tried Horse war- by an impartial person; and the expense of trial, in case [n^^arnes"^' the Horse does not answer his warranty, is to fall on the seller. The keeper of the Repository has a specific lien on the Horse until such expense be paid (b). Where the Auctioneer declares that the conditions of Notice of the a sale by auction are as usual, there is a sufficient notice conditions of of them to purchasers (c), where they are printed and ^^^^' (z) By water v. Richardson, 2 T. R. 746. 1 A. & E. 508 ; S. a 3 N. & (h) Hardingham v. Alien, 5 M. 748 ; Mesnard v. Aldridge, C. B. 797. 3 Esp. 271. (c) By the law of Scotland, (a) Buchanan v. Parnshaiv, a purchaser at a public auc- 36 CONTRACTS CONCERNING HORSES, &C. posted up in a conspicuous part of the auction room. Thus where an action on the Case was brought on the warranty of a Horse, it appeared that the Horse was sold by auction at the defendant's Repository, and warranted sound. The sale took place on the AYednesday. At the time of the sale, the Auctioneer announced that the con- ditions of the sale were as usual. These conditions of sale were proved to be contained in a printed paper pasted up under the Auctioneer's box, and by one of them all Horses purchased there, in case of any unsoundness being discovered, were required to be returned before the even- ing of the second day after the sale. The Horse in ques- tion was not returned till the Saturday. When returned by the plaintiff, he was informed that it was too late, as he ought, pursuant to the conditions of sale, to have re- turned him on the evening of Friday. It was contended that there was no evidence of notice of the conditions of sale sufficient to bind the plaintiff. But Lord Kenyon (in summing up) said — "In this case it is proved that printed particulars of the sale are pasted up in the public sale room under the Auctioneer's box. In the case of carriers, who advertise that they will not be liable for goods lost above the value of 5/., unless entered as such, the posting up of a bill in the coach office to that effect has been held to be sufficient. I therefore think the same mode being adopted here gives the same degree of notice to all persons who come to this sale, and that it is a sufficient notice of the conditions under which the Horses are sold." " With respect to the main point, when parties enter into a special agreement, they must adhere to the terms of it. Here there is a condition that the party purchasing must return the Horse within two days, which he has not done ; I therefore think the plaintiff must be nonsuited (c?)." bidder mav ^ Bidder at an auction under the usual conditions that retract. the highest bidder shall be the purchaser, may retract his bidding before the hammer is down ; because the Auc- tioneer is the agent of the vendor, and the assent of both parties is necessary to make the contract binding, and that is signified on the part of the seller by knocking tion, cannot be allowed to M. & P. 395. (Court of Sess. plead, that he was ignorant of Sco. ) the articles and conditions of {d) Mesnard v. Aldridge, 3 sale. See Laing v. Hain, 2 S. Esp. 271. REPOSITORIES AND AUCTIONS. 37 down the hammer. Every bidding is nothing more than an offer on one side, which is not binding on either side till it is assented to (e). A statement that a Horse is the property of the vendor, Warranty of made by himself or agent, is a sufficient warranty of the o'^^nership. ownership, and an assertion by an auctioneer that all the Horses in a sale are the bona fide property of the person whose stud he is advertised as selling, would vitiate the purchase of a Horse belonging to another party, made on the faith of that representation, such Horse having been put into the sale without notice ; because the pur- chaser would probably give a much higher price for a Horse belonging to the stud in question, than for one without a character (f) ; and the following case goes much further, for where the defendant, erroneously sup- posing that a picture had been in the possession of Sir F. Agar, purchased it from the agent of the plaintiff, who, though aware of the defendant's mistake, did not un- deceive him ; Lord Ellenborough held, that the plaintiff could not recover the sum for which the picture was sold, the price being probably enhanced by the error (g). Where an Auctioneer sells a commodity without say- Auctioneer ing on whose behalf he sells it, in such case the purchaser not dis- is entitled to look to him personally for the completion of hisprUicipal. the contract (/?), and the same rule, according to the gene- ral law of principal and agent, applies to purchasers (i). AVhere a Horse is bid up by a Puffer, and one condition Puffing, of the auction is, that the highest bidder is to be the pur- chaser, the vendor cannot recover the price (k). The law on this point w^as fully considered by the Court of Com- mon Pleas in the following case :— An action was brought by the plaintiff to recover the value of a Horse sold by him to the defendant, at a public auction at Aldridge's Repository. It appeared that it was one of the condi- tions of sale, " that each Horse should be sold to the highest bidder 5 " that the plaintiff's groom attended at the (e) Payne v. Cave, 3 T. R. (h) Hanson v. Rohertdeau, 1 148 ; and see Routledge v. Peake, 163. Grant, 4 Bing. 653 ; Head v. {i) As to principal and Duggan, 3 M. & R. 97. agent, see the rule in Thomp- (/ ) Bexwell v. Christie, son v. Davenport, 9 B. & C. 86 ; Cowp. 397 ; and see Brad- and post, shatv's case there cited. (k) Pilmore v. Hood, 5 N. {g) Hill V. Gray, 1 Stark. C. 97. N. P. C. 434. CONTRACTS CONCERNING HORSES, &C. sale on the part of his master for the purpose of raising the price ; that the last bond fide bidder had bid 12/.; after which, until the Horse was knocked down to the defendant for 29Z., he and the groom were the only bid- ders; and that when the defendant discovered against whom he had been bidding he refused to take the Horse. Upon these facts Chief Justice Best said : "I am clearly of opinion that the action cannot be maintained. I have long been surprised that the objection has never been taken. A man goes to a sale, and is told that if he is the highest bidder he shall have the article. He bids a cer- tain sum, and a person (employed by the seller) whom he does not know attends and puffs against him, and in consequence of that he is compelled to pay a much larger price than he would otherwise have paid. Is not this a gross fraud? I am prepared to nonsuit the plaintiflP." It was then proved for the plaintiff, by the evidence of the Auctioneer, that the defendant was in the habit of attending sales of Horses, and that he knew the plaintiff's groom was present ; and it Avas stated that there was a case deciding that a seller has a right to have one person to bid for him at the sale, if he does not do it in order to impose. Chief Justice Best then said : '' I agree that he has such a right, but then he must declare it by the con- ditions of sale. I am of opinion that a person acts in opposition to the conditions of sale where the highest bidder is to be the buyer, if he employs a person to bid for the purpose of enhancing the price. In this case the other person at the sale did not go near the ultimate sum. It is impossible under these circumstances to say that -29/. was the highest price contemplated by the conditions ; for tlie defendant, under them, was entitled to have the Horse at the next highest bidding to that of the ovUy fair bidder (A)." The Court of Common Pleas confirmed Chief Justice Best's ruling at nisiprius ; and Mr. Justice Park said : " I entirely concur in the opinion expressed by Lord Mansfield;" as to which Lord Kenyon, in Howard v. Castle (/), said : " The whole of the rea- soning of Lord Mansfield in Bexwell v. Christie (m) is founded on the noblest principles of morality and justice, — principles that are calculated to preserve honesty between (k) Crowder v. Justin, 2 C. R, 634. & P. 208. (m) Bexwell v. Christie, (l) Howard v. Castle, 6 T. Cowp. 396. REPOSITORIES AND AUCTIONS. 39 man and man. The circumstance of puffers bidding at auctions lias been always complained of. If the first case of this kind had been tried before me, perhaps I should have hesitated a little before I determined it ; but Lord Mansfield's comprehensive mind saw it in its true colours, and made a precedent which I am happy to fol- low {n}." And this decision has been further confirmed by a late case in the Court of Exchequer, where it was held, that in a sale by auction without reserve, if a puffier be employed without notice of his being there to protect the interest of the seller, the sale is void (o). A purchaser at an auction can, before payment, make Purchaser a complete bargain and sale of the article which he has ™ay transfer bought, to a third party ; so as to maintain an action for "* argam. Goods bargained and sold (p). Where a party refuses to take goods he has purchased, "Where party thev should be resold, and he will be liable to the loss, if rejusesto •',,/, ' take goods, any, upon the resale (q). Thus in Scotland, where some Horses were sold by Goods resold public auction without stipulation as to credit, and the ^^ithout com- purchaser allowed two days to elapse without tendering withpur- the price. It was held that the seller, who had never chaser, parted with the possession, was entitled on the third day to resell them without any communication with the original purchaser, and to sue the original purchaser for the difference in the prices, and for the keep of the Horses between the periods of sale and resale, and the expenses of the resale (r . An Auctioneer, employed to sell goods for ready money, Auctioneer is the accent of the vendor to receive the price (s) : but P5°^!L?1''*^ o T • 1 1 ^ 1 to receive where the goods are sold on credit, it depends upon the the price, extent of his authority, which, in the absence of any proof of general authority, must depend upon the con- ditions of sale ; and where the only authority given to the Auctioneer by these conditions is to receive the de- posit money, the vendor reserves to himself or his agent (n) Crowder v. Austin, 3 (^) See Maclean v. Dunn, Bing. 368; S. C. 11 Moore, 4 Bing. 729 ; Story on Sales, 283 ; and see Wheeler v. Col- 348. Iter, M. & M. 126; Sugd. V. (r) Laing v. Hain, 2 S. M. & P. 24. & P. 396. (Court of Sess. (o) Thornett v. Haines, 15 Sco. ) L. J. 230. (Exch.) (s) Sykes v. Giles, 5 M. & (p) Scott V. England, 2 D. W. 650. & L. 520. 40 Has no au- thority to re- ceive a bill of exchange. He is stake- holder for both parties. When the price vests in the ven- dor. Price ob- tained by Principal's fraud. CONTRACTS CONCERNING HORSES, &C. the power to receive the remainder of the purchase money (^). And in any case where he has authority to receive the purchase money, he has no authority to receive it by means of a bill of exchange (u). Where, by the terms of a sale by auction, a deposit is to be made with the Auctioneer, he becomes the stakeholder of both parties, and must retain possession of it(.i^). Where a Horse is sold at a Repository on certain con- ditions, one of which for instance may be, a power to return the Horse within a certain time, if he does not answer his warranty ; it has been held that the price which the Auctioneer has received does not vest in the vendor until the conditions have been complied with (y). Where an Agent on a Sale receives as the price of an article money obtained by the fraud of his principal, it is not Money received to the use of the principal, but to the use of the purchaser of the chattel. Thus a Horse-dealer employed an Auctioneer to sell a Horse for him, and to make certain representations which amounted to gross fraud. The Horse was sold and paid for, but before the money was paid over, the fraud was discovered and the money returned to the purchaser. The Horse-dealer brought an action against the Auctioneer to recover the money so received by him. But it was held by the Court of Queen's Bench that he could not recover, as the principle of Murray v. Mann(z) applied Avith the greatest force to this case. And it was said that it would be a discredit to the law of England if the innocent agent of the plaintiff's fraud were bound to pay the money over to him. For if he did so after notice he would be liable to an action at the suit of the purchaser («). (0 Sykes v. Giles, 5 M. & W. 650 ; Mijmi v. Joliffe, 1 M. & Rob. 326 ; and see Alex- ander v. Gibson, 2 Camp. 555. (m) Sykes v. Giles, 5 M. & W. 652. {x) SeeEdwardsw.Hodding, 5 Taunt. 815; Gray v. Gut- teridge, 3 C. & P. 40 ; Story on Contracts, 64. (y) Hardingham v. Allen, 5 C. B. 796. {z) Murray v. Mann, 2 Exch. 538. (a) Stevens v. Lee, Q. B., Nov. 7, 1853. ( 41 ) CHAPTER III. FAIRS AND MARKETS OVERT; HORSE STEALING AND THE RECOVERY OF STOLEN HORSES. Fairs and Markets overt. Sales at Fairs and Markets overt 41 The General Rule of Law . 42 When Market overt is held . id. Where Market overt is held id. What held to be Market overt id. Where a Horse at a Fair is exempt from Distress . id. Horse Stealing. Statute of Geo. 4 id. Description in an Indict- ment . - 43 When the Offence is com- plete id. Property given up id. Delivery of a Horse to a Stranger id. Delivery on Trial id. Goods taken without Con- sent 44 Appropriation of a hired Horse id. Larceny without Proof of Sale id. Taking with an Litent to use id. Possession Six Months after Loss 44 Killing or maiming Horses 45 Pouring Acid into a Mare's Ear id. Recovery of Stolen Horses. Sale in Market overt .... id. Statutory Regulations .... id. Recovery when sold tinder these Regulations .... id. Oivner must prove the Horse was stolen 46 Sale out of Market overt . . id. Recovery when not sold un- der these Regulations . . Owner must first endeavour to bring the Thief to Jus- tice But not where the Action is against a Third Party Order for Restitution . . . Or Action of Trover . . . Order of Police Magistrate id. Where no Special Damages can be awarded id. Replevin for Unlawful Taking id. id. id. id. 47 id. FAIRS AND MARKETS OVERT. The general rule of law is, that all sales and contracts Sales at Fairs of any thing vendible in Fairs or Markets overt (that is |"^ ^^f'"' open), shall not only be good between the parties, but ^ ^ ^""^^ ' 42 CONTRACTS CONCERNING HORSES, &C. The general rule of law. When Mar- ket overt is held. Where Mar- ket overt is held. What held to be Market overt. Where a Horse at a Fair is ex- empt from distress. also be binding on all those that have any right of pro- perty therein. And for this purpose the Mirror informs us, were tolls established in Markets, viz. to testify the making of contracts, for every private contract was dis- countenanced by law; insomuch that our Saxon ances- tors prohibited the sale of any thing above the value of twenty pence unless in open Market, and directed every bargain and sale to be contracted in the presence of cre- dible witnesses (a). The general Rule of the law of England is, that a man who has no authority to sell cannot, by making a sale, transfer the property to another. And the only excep- tion to this Rule is the case of sales in Market overt (^). Market overt in the country is only held on the spe- cial days provided for particular towns by charter or prescription, but in London every day, except Sunday, is Market day (a\ The Market place, or spot of ground set apart by custom for the sale of particular goods, is also in the country the only Market overt, but in London every Shop {except pawnbrokers) in which goods are exposed publicly for sale is Market overt, but for such things only as the owner professes to trade in (a). And a sale within the city of London, in an open shop, of goods usually dealt in there, is a sale in Market overt, though the premises are described in evidence as a ware- house, and are not sufficiently open to the street for a person on the outside to see what passes within ('SOUXDN'ESS AXD VICE. 71 especially as dissection often discovers ulceration within the joints and of the membrane which lines the cartilage, and even of the cartilasfe itself, which it was impossible to reach or to remove (b). When it exists in such a de- gree as to diminish the natural usefulness of the Horse, it must be considered an Unsoundness. Grunting is an Unsoundness ; see Roaring (c). Granting. Gutta Serena, commonh^ called Glass-eye, is a species Guttaserena. of Blindness. The pupil is unusually dilated ; it is im- moveable, bright and glassy. It is a palsy of the optic nerve, or its expansion, the retina, and is usually pro- duced by determination of blood to the head. It may be caused by improper treatment of the Staggers, where the pressure on the base of the brain has been so gTeat, that the nerve has been injured and its function de- stroyed {d). It is an Unsoundness. There is scarcely a malady to which the Horse is sub- Hereditary ject which is not Hereditary. Contracted feet. Curb, disease. Spavin, Roaring, Thick wind. Blindness, notoriously descend from the father and dam to tlie foal, which from them inherits its constitution and endurance (e). It would no doubt be a matter of great difficulty to maintain an action on a breach of warranty of soundness on the sale of a Horse, on the ground of Hereditary disease alone, but it is presumed to be just possible that if some general decay of the system or such like, developing itself after sale, could be proved to be Hereditary, the purchaser might have his action ; and the following case appears somewhat in point: — The plaintiff bought a hundred sheep warranted sound ; about two months after sale fifty of them died of the Goggles, which was stated by farmers and others conversant with sheep to arise from "breeding in and in from relations; " and that sheep so disordered will tlirive and seem to be in sound health until they be about two or tliree years old ; that there were no means of discovering by the appearance or other- wise when sheep are affected ; that it is generally fatal, and no cure or prevention kno^\'n for it, and that it was reputed among farmers an Unsoundness. Chief Justice Abbott left it to the jurj" to say, " whether, at the time of the sale, the sheep had existing in their blood or con- stitution the disease of which they afterwards died, or (6)Lib.U.K. "TheHorse," 116. And see Patent Defects, 252. post. (e) Roaring, jD05f. (e) Lib.U.K. "TheHorse," {d) Lib.U.K. "TheHorse," 35, 221. 72 Kicking. Kidney- dropping. CONTRACTS CONCERNING HORSES, &C. whether it had arisen from any subsequent cause." And on this direction a verdict was found for the plaintiff (7i). Kicking, either in the stable or in harness, is a bad and dangerous habit, and therefore a Vice. Some Horses, particulai-ly Mares, from fidgetiness and irritability, get a habit of kicking at the stall ; and this taking place generally at night disturbs the other Horses, and pro- duces swelled hocks or some more serious injury. It shows Vice in the temper of the animal (i), and it is very seldom that a confirmed Kicker can be cured (k). A Kidney -dropper will appear quite well at starting, but after travelling a short distance he will come to a dead stand-still, and, if not supported, will drop down on the spot. A Kidney-dropper is worthless and Unsound(l). Lameness. Lameness, whether temporary or permanent, is an Unsoundness ; because however temporary it may be or however obscure, it lessens the utility of the Horse and renders him unsound for the time. How far his sound- ness may be afterwards affected, must depend on the cir- cumstances of the case {m). The law as laid down in Coates v. Stephens (n) and Kiddelly. Burnard{o'), with regard to temporary dis- eases, is the same as was formerly held by Lord EUen- borough, and will be seen in the following cases: — A Horse, sold warranted sound, was proved to have been lame at the time of sale ; this the defendant admitted, but undertook to prove that the lameness was of a tem- porary nature, and that the Horse had afterwards re- covered, since which he had been perfectly sound : how- ever. Lord Ellenborough said, " I have always held and now hold, that a wan-anty of soundness is broken if the animal at the time of sale had any infirmity upon him, which rendered him less fit for present service. It is not necessary that the disorder should be permanent or in- curable. "While a Horse has a Cough I say he is Un- sound, although that may either be temporary or may prove mortal. The Horse in question having been lame Temporary lameness an Unsound- ness. Qi) Joliff v. Bendell, R. & M. 136. (^) Lib.U.K. " TheHorse," 336. {k) Scholefield v. Rohh, 2 M. & Rob. 210. {I) See Eastman^ s case, Lambeth Police Court, Nov. 11, 1853. (m) Lib.U.K.^TheHorse," 364. (w) Coates v. Stephens, 2 M. & Rob. 137, overruling Bolden v. Brogden, 2 M. & Rob. 113. (o) Kiddell v. Burnard, 8 M. & W. 670. UNSOUNDNESS AND VICE. 73 at the time of sale, when he was warranted to be sound, his condition subsequently is no defence to the action (p). And in another case, on the trial of an action on the warranty of a Horse where the evidence was very con- ti-adictory, but a witness of the defendant's admitted that he had bandaged one of tlie fore-legs of the Horse, but not the other, because the one was weaker than the other, Lord Ellenborough said, "To constitute Unsoundness, it is not essential that the infirmity should be of a perma- nent nature ; it is sufficient if it render the animal for the time unfit for service : as, for instance, a Cough, which for the present renders it less useful, and may ultimately prove fatal. Any infirmity which renders a Horse less fit for present use and convenience is Unsoundness (q)." In a previous case it was said to have been held that a warranty that a Horse is sound, is not false because the Horse labours under a temporary injury from an accident at the time the defendant warranted it sound. But the warranty there appears to have been a qualified one, because when bargaining the plaintiff observed, that the Mare went rather lame on one leg. The defendant re- plied, that it had been occasioned by her taking up a nail at the Farrier's, and except as to that lameness, she was perfectly sound (r). Laminitis is an inflammation of the Lamina of the Laminitis. feet, namely, of the connecting medium between the cofiin bone and the interior of the hoof, there being nu- merous fleshy plates which support the foot. The coronary ring is contracted, the soles become convex, the Horse puts his heels to the ground first and goes short, and lameness ensues. Laminitis is such an alteration in struc- ture as is without doubt Unsoundness (s). Some of the lower bars of the palate occasionally swell, Pampas, and rise to a level with and even beyond the edge of the teeth ; they are very sore, and the Horse feeds badly on account of the pain he suffers from the pressure of the food on the bars(^). This is called Lampas, and being easily cured, and not dangerous, it is only Unsoundness while it interferes with the Horse's usefulness. (p) Elton V. Brogden, 4 (s) See Hall v. Rogerson, Campb. 281. Appendix ; Smart v. Allison, (q) Elton V.Jordan, 1 Stark. Appendix. N. P. C. 127. (0 Lib. U.K. "The Horse," (r) Garment v. Barrs, 2 134. Esp. 673. E 74 Liver disease. Lungs hepa- tized. Mallenders and Sallen- ders. Mange. Navicular Joint dis- ease. Nerved Horse. Held to be Unsound. CONTRACTS CONCERNING HORSES, &C. A diseased Liver is of course an Unsoundness {u). All diseases of the Lungs constitute Unsoundness. The various symptoms were discussed in the case oi Hyde v. Davis (m). At the bend of the knee, as well as in the inside of the hock, or a little below it, there is sometimes a scurfy eruption, called Mallenders in the fore leg and Sallenders in the hind leg. They seldom produce lameness, but if no means are taken to get rid of them, a discharge pro- ceeds from them which it is afterwards difficult to stop {x). They must be considered Unsoundness. The Mange is a pimpled or lumpy eruption of the skin, followed by blotches covered with scurf j these change into scabs, and occasionally extend over the whole car- case ; it is one of the most contagious diseases to which the Horse is exposed (y). A Mangy Horse is decidedly Unsound. The Navicular Joint disease is Unsoundness, as it pro- duces lameness, which is rarely cured. It proceeds from sudden concussion, or from rapid and overstrained motion. Horses which have irregular and undue exercise are most liable to it, and particularly those whose feet are con- tracted {z). An action was brought for the breach of an alleged warranty ; the Unsoundness in question was what is termed " Navicular disease," which was stated to be an inflammation in a joint on the inside of the hoof, and to be of such a nature that it might be alleviated by proper treatment, so far as to render a Horse fit for gentle work, and to make him appear sound for a short time and on soft ground ; but could seldom, if ever, be per- manently cured, so as to qualify him for hard work(z). The '' Navicular disease" is an Unsoundness, and is in- curable (a). A Horse on whom the operation of Nerving has been performed may be improved, may cease to be lame, may go well for many years ; but there is no certainty of his continuing to do so, and he is Unsound [b). This was decided in the following case, soon after Neurotomy had been first introduced by Veterinary Sur- (?/) See Hyde v. Davis, Ap- pendix. (x) Lib.U.K. "TheHorse," 273. (2/)Lib.U.K."TheHorse," 370 ; and see Scab, j^ost. {z) By water v. Richardson, 1 A. & E. 508. (a) Matthews v. Parker, Appendix. (6)Lib.U.K. ''TheHorse," 364. UNSOUNDNESS AND VICE. 76 geons. An action was brought on the warranty of a Horse which had been Neirved. Several eminent Farriers were called, who stated that the operation of Nerving consisted in the division of a nerve leading from the foot up the \e^ ; that it was usually performed in order to relieve the Horse from the pain arising from a disease in the foot, the nerve cut being the vehicle of sensation from the foot ; that the disease in the foot would not be affected by the operation, and would go on increasing or not, according to its character ; that Horses previously lame from the pain of such a disease would, when Nei'ved, frequently go free from lameness, and continue so for years ; that the operation had been found successful in cavalry regiments, and Horses so operated on had been for years employed in active service ; but that in their opinion, a Horse that had been Nerved, Avhether by accident or design, was Unsound, and could not be safely trusted for any severe work, and that it was an organic defect (c). It appeared that the Horse in question had not ex- hibited any lameness. But Chief Justice Best told the Jury, " that it was difficult to say that a Horse in which there was an organic defect could be considered sound ; that Sound meant Perfect, and a Horse deprived of a useful nerve was imperfect, and had not that capacity of ser\ace which is stipulated for in a warranty." And the Jury returned a verdict for the plaintiff (c). The most frequent disease of the Nose is an increased Nose, Chro- and thickened discharge from it. It may properly be ^^^ <^i^- called a Nasal gleet. There is a continued and often a ^ ^^°^' profuse discharge of the fluid secreted to lubricate the membrane lining the Nose, when everj?- symptom of CataiTh and fever has passed away, and an almost in- credible quantity of thickened mucus, of different colours ; green, if the Horse is at grass ; or, if he be stabled, white, straw-coloured, brown, or even bloody, and some- times evidently mingled with matter or pus ; and either constantly running, or snorted out in masses many times in the day, often continuing several months, and some- times eventually destroying the Horse (d). Such a dis- ease is without doubt an Unsoundness, It occasionally happens that a Horse ^viU seldom or Not lying down. (0 Best V. Osborne, R. & (rf) Lib.U.K. " TheHorse," M. 290. 121. e2 76 CONTRACTS CONCERNING HORSES, &C. Opacity of the Lens. Ossification of the Carti- lages. Overreach. Parotid Gland ulcerated. never Lie doimi in the stable. He sometimes continues in apparent good health, and feeds and works well ; but generally his legs swell, or he becomes fatigued sooner than other Horses (e). It is a bad habit, and when de- cidedly injurious to his health, and so tending to impair his usefulness, it is a Vice. Opacity of the crystalline Lens of the eye is an Un- soundness. See Blindness (jf). The Side Cartilages occupy a considerable portion of the external side and back part of the foot, the expansion of the upper part of which they are designed to preserve. These cartilages are subject to inflammation, and the result of that inflammation is, that the cartilages are absorbed, and bone is substituted in their stead. This Ossification of the Cartilages frequently accompanies Ringbone (^) ; but it may exist without any affection of the pastern joint. It is oftenest found in Horses of heavy draught. It arises not so much from concussion as from a species of sprain ; for the pace of such heavy Horses is slow. The cause, indeed, is not well understood, but of the efiect the instances are very numerous, few heavy draught Horses arriving at old age without this change of structure {h). Like Ringbone (i), it is an Unsound- ness {k). This very disagreeable noise, known by the name of " Clicking, Overreach,^^ &cc. arises from the toe of the hind foot knocking against the shoe of the fore foot (I). It is not altogether free from danger, as a Horse may lame himself by it ; or, if the fore and hind shoes become locked, he will be suddenly thrown. As to the effects of a neglected tread or Ovein^each, see False-quarter {m) and Quittor(n). This defect, like Cutting (o), arises from the bad formation of the Horse (o), and is there- fore neither an Unsoundness nor a Vice. The Parotid Gland is placed in the hollow which ex- tends from the root of the ear to the angle of the lower jaw. In bad Strangles, and sometimes in violent cold, it (e)Lib.U.K. "TheHorse," 341. (/) Blindness, ante. (g) Ringbone, post. (/i)Lib.U.K."TheHorse," 310. (i) Ringbone, post. (A) See Simpson v. Potts, Appendix. (0 Lib.U.K. "TheHorse," 341. (in) False-quarter, ante, (n) Quittor, post. (o) Brown v. Elkington, 8 M. & W. 132; Dickenson v. Follett, 1 M. & Rob. 299. UNSOUNDNESS AND VICE. 77 will swell to a great size and ulcerate ; or an obstruction will arise in some part of the duct, and the accumulating fluid will burst the vessel, and a fistulous ulcer will be formed, very difficult to heal. Such a disease is an Unsoundness (p). The point of junction between the head and the bone PoU-evii. nearest the skull is called the Atlas, and is the seat of a very serious and troublesome ulcer termed Poll-evil, caused by the Horse rubbing and sometimes striking his Poll against the lower edge of the manger, or hanging back in the stall, and bruising the part with the halter ; or from a violent blow on the Poll, carelessly or wantonly inflicted, or perhaps by unnecessary tight reining ; the consequence is inflammation, and a swelling appears, hot, tender, and painful. The swelling increases, and matter is formed, which spreads around and eats into the neighbouring parts (q). This disease is an Unsoundness. The sensible and horny little plates of the foot, which Pumiced have been elongated and partially separated during the ^®*' intensity of an attack of inflammation, will not always perfectly unite again, or will have lost much of their elasticity ; and the coffin-bone, no longer supported by them, is let down and presses upon the sole, which yields to this unnatural weight, and becomes convex or rounded, and thus, coming in contact Avitli the ground, it gets bruised and injured (r). This is called Pumiced-feet ; it is incurable, and is decidedly an Unsoundness. A Horse will sometimes partly chew his hay, and suffer Quidding. it to drop from his mouth. This is called Quidding, and proceeds either from irregular teeth or sore throat, but ceases when these are remedied (s). It would be a symp- tom of Unsoundness while the sore throat lasted. Quittor is an Unsoundness. It has been described as Quittor. being the result of neglected or bad tread or Over- reach (t) ; but it may be the consequence of any wound in any part of the foot. In the natural process of ulcera- tion matter is throAvn out from the wound ; this precedes the actual healing of the part. The matter which is thrown out in wounds of the foot is usually pent up there, and increases in quantity, and thus urges its way in every direction ; it forces the fleshy little plates of the coffin (jo)Lib.U.K."TheHorse," (r) Lib.U.K. "TheHorse," 148. 291. {q) Ibid. 153. (s) Ibid. 342. {t) Overreach, ante. 78 CONTRACTS CONCERNING HORSES, &C. bone from the horny ones of the crust, or the horny sole from the flesh)'^ sole, or even eats deeply into the internal parts of the foot. These Pipes or Sinuses run in every direction, and constitute the essence of Quittor{u). Rat-tails. On the back part of the leg are sometimes excrescences called by Farriers Rat-tails, from the appearance they give the hair. They generally yield to mild treatment {x), and as they are unlikely, from their situation, to impede the natural usefulness of the Horse, it is only in a bad case that they can be considered Unsoundness. Rearing. Hearing, which is unprovoked by the bruising and laceration of the mouth, is an inveterate and dangerous bad habit (y), and a Vice. Ring-bone. Hing-bone commences in one of the pasterns, and usually about the pastern joint ; but it rapidly spreads, and involves not only the pastern bones, but the carti- lages of the foot. The pastern first becomes connected together by bone, instead of ligament, and thence results what is called an Anchylosed or Fixed joint. Its motion is lost, and the disease proceeds to the cartilages of the foot, and to the union between the lower Pastern and the Coffin and Navicular bones ; the motion of these parts is impeded or lost, and the whole of this part of the foot becomes one mass of spongy bone. When the bony tumour is small and on one side onlj', there is little or no lameness, yet from the action of the foot, and the stress upon the part, the disease has a great tendency to spread, after there has been the slightest enlargement either of the pasterns or round the coronet {z). The law respect- ing Bone-spavin («) appears on principle to be exactly applicable to King-hone, the slightest appearance of which must be considered an Unsoundness, whether it produce lameness or not. Roaring. Roaring is so called from a peculiar sound uttered by a Horse with this disease, when briskly trotted or gal- loped, particularly up hill. In moderate exercise it is scarcely or not at all perceived ; but in brisk exercise it may be heard at the distance of several yards. The most general cause oi Roaring is a tough and viscid substance which is thrown out in the shape of fluid, and adheres to the sides of the larynx and upper part of the windpipe, (M)Lib.U.K."TheHorse," 302. {x) Ibid. 275. ly) Ibid. 337. (z) Lib.U.K. "TheHorse," 254, ZQ5. (a) Bone-spavin, ante. UNSOUNDNESS AND VICE. 79 materially obstructing the passage, and sometimes run- ning across it in bands. Some Roarers, on dissection, are found to have the shape of the larynx and windpipe materially deformed, crooked, and compressed, and others have presented no appearance of disease. Roainng is no unusual consequence of Strangles {h), and it may proceed from tight reining (c). Lord Mansfield and Lord Ellen- borough seemed to tliink that Roaring was not necessa- rily Unsoundness ; but required proof, in each particular case, that it was symptomatic of disease, or affected the Horse so as to render him less serviceable for a perma- nency, as, otherwise, it might merely be a bad habit. There can be no doubt, however, that every Roarer is inconvenienced by it when in rapid action, and it would be diflScult to say, in any case, that it is merely a bad habit acquired, without some previous inflammation or alteration of structure. In practice Roaring is always very properly considered an Unsoundness. The following cases show the opinions expressed in Decisions on courts of law with regard to Roaring. An action was ^^^ subject, brought on the warranty of a Horse, which soon after sale had turned out a Roarer. Mr. Field, a Veterinary Sur- geon of experience, stated that Roaring is occasioned hy the circumstance of the neck of the windpipe being too narrow for accelerated respiration, and that the disorder is frequently produced by sore throat or other topical in- flammation, and that the disorder is of such a nature as to incommode a Horse very much when pressed to his speed. And Lord Ellenborough said, " If a Horse be aficcted by any malady which renders him less service- able for a permanency, I have no doubt that it is an Unsoundness. I do not go by the noise, but by the dis- order (rf)." And in a previous case, w^here an action had been brought on the warranty of a Horse, Avhich had turned out a Roarer, Lord Ellenborough said, *'It has been held by very high authority ; Sir James Mansfield, C. J.) that Roaring is not necessarily Unsoundness, and I entirely concur in that opinion. If the Horse emits a loud noise, which is offensive to the ear, merely from a bad habit which he has contracted, or from any cause which does not interfere with his general health or (6) Strangles, post. (d) Onslow v. Eames, 2 (c)Lib.U.K. "TheHorse," Stark. N. P. C. 81. 160. 80 CONTRACTS CONCERNING HORSES, &C. Rolling. Running away. Saddle-galls. muscular powers, he is still to be considered a sound Horse. On the other hand, if the Roaring proceeds from any disease or organic infirmity, which renders him incapable of performing the usual functions of a Horse, then it does constitute Unsoundness. The plaintiif has not done enough in showing that this Horse was a Roarer. To prove a breach of the warranty, he must go on to show that the Roaring was symptomatic of disease." The defendant had a verdict (e). Rolling is a pleasant and safe amusement for a Horse at grass, but cannot be indulged in the stable without the chance of his being dangerously entangled with the col- lar, and being cast. Yet, although the Horse is cast, and bruised, and half strangled, he wall roll again on the fol- lowing night, and continue so to do as long as he livesfy* ). Now this is a bad habit, and a Horse may have his health and usefulness impaired by being often cast, or half strangled and lamed ; it must render a Horse less valu- able, and when inveterate may perhaps be considered a Vice. Some headstrong Horses w^lU occasionally endeavour to bolt with the best rider. Others, with their wonted sagacity, endeavour thus to dislodge the timid or un- skilful. Some are hard to hold, or bolt only during the excitement of the chase ; others will Run away., prompted by a vicious propensity, alone. There is no cure here ; and being a bad and dangerous habit, it is a Yice{g^. When the Saddle has been suffered to press long upon the withers, a tumour will sometimes be formed, hot and exceedingly tender. In neglected Fistulous withers the ulcer may be larger and deeper, and more destructive than in Poll-evil {h). It may burrow beneath the shoulder- blade, and the matter may appear at the point of the shoulder or the elbow ; or the bones of the withers may become carious. On other parts of the back, tumours and very troublesome ulcers may be produced by the same cause. These little tumours resulting from the pressure of the saddle are called Warbles ; and when they ulcerate, they frequently become Sitfasts{i]. If the smallest Warble is in such a situation as to prevent the putting on of a {e)Bassettv. CoZ/is, 2 Camp. {g) Lib.U.K. "TheHorse," 522. 337. (/) Lib.U.K. 'TheHorse," {h) Poll-evil, ow^e. 342. (0 Lib.U.K. "TheHorse," 169. UNSOUNDNESS AND VICE. 81 saddle or harness, it is a breach of a Warranty of Sound- ness, On this point Mr. Baron Parke expressed an opinion Pimple on a in Kiddell v. Bumard{k), where he said, "If the disease ^^^^^^ skin. were not of a 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 Unsoundness ; but even if such a thing as a Pimple were on some part of the body where it might have that effect, for instance, on a part which would prevent the putting a saddle or bridle on the ani- mal, it would be different." It is a question for the Jury whether the Horse in such Question for case is fit for immediate use. Thus, where an action was ^^ "^^" brought for the price of a Horse warranted sound, and the defendant endeavoured to show that he had a tender place on his neck, which when touched made hira plunge, it being situated where the mane is usually grasped by a person when mounting, and that he was therefore unsafe and unfit for use while it lasted ; Mr. Justice Wightman summed up and said to the Jury, '' I take your opinion whether you are satisfied that the Horse when put into the defendant's stable was rendered unfit for immediate use to an ordinary person on account of some disease." The Jury held that, when delivered, he was quite fit for present use (Z). Sallenders constitute Unsoundness. See MaUen- Salienders. ders(wz). Sandcrack, as its name imports, is a Crack or division Sandcrack. of the hoof downwards, and into which Sand and dirt are very apt to insinuate themselves ; or it is so called, as some say, because it most frequently occurs in Sandy districts, the heat of the sand applied to the feet giving them a disposition to crack. It occurs both in the fore and hind feet, and indicates a brittleness of the crust, which is sometimes natural, but oftener the consequence of mismanagement or disease, particularly of False Quar- ter {n) ; and where the horn has gi-own down whole, but leaves a narrow strip of horn of a different and lighter colour, this indicates that there has been a Sandcrack^ (k) Kiddell v. Burnard, 9 Newcastle Spring Assizes, M. &W. 670. 1845. (l) Ainsley v. Brown, be- (to) See Mallenders, ante. fore Mr. Justice Wightman, (ra) False-quarter, ante. E 5 82 Scab. Statute of Hen. 8. Shivering. Shying. Side-bones. Slipping the collar. CONTRACTS CONCERNING HORSES, &C. and that a disposition to it may possibly remain (o). Sandcrack is an Unsoundness ; but as in the ease of a Curb (p), if a Horse, without any indication of having previously had the disease, throw out a Sandcrack im- mediately after sale, it is no breach of a warranty of Soundness. The Scab is a disease which constitutes a breach of warranty of Soundness, and there is a form of declaration in the Liber Placitandi{q), in a case where, in conse- quence of the existence of such disease, an action was brought on a warranty given at Leeds in 1649. By the statute 32 Hen. 8, c. 13, s. 9, intituled " The Bill for the Breed of Horses," no person shall have or put to pasture any Horse, Gelding or Mai'e infected with Scab or Mange, in any Common or Common Fields, on pain of forfeiting lOs., which offence shall be inquirable in the leet, as other common annoyances be, and the forfeiture shall be to the lord of the leet. Shivering is a disease known among the London Dray Horses. The Horse constantly shivers, and frequently cannot lie down ; he is unable to back, and conse- quently can only be used in the team and not in the shafts. This would no doubt be a breach of a warranty of Soundness. Shybig is often the result of cowardice, playfulness, or want of work ; it is at other times the consequence of defective sight. Shying on coming out of the stable is a habit which proceeds from the remembrance of some ill-usage or hurt, which the animal has received in coming out of the stable, and can rarely or never be cured (r). When confirmed, it is a bad and dangerous habit, and therefore a Vice. Sidebones is the same disease as Ossification of the car- tilages (5). A lameness is caused, which is removed by absolute rest for a length of time, but quick work on a hard road soon brings it back again. It is an Unsound- ness, whether it produces lameness or not (t). Many Horses are yevy clever at Slipping the collar at night j they gorge themselves with food, and run the risk (o)Lib.U.K."TheHorse," 301. {p) Curb, ante. (q) Lib. Plac. 30. (r)Lib.U.K. ''The Horse," 344. (s) Ossification of the Car- tilages, ante. (t) Simpson V. Potts, Ap- pendix. UNSOUNDNESS AND VICE. 83 of being kicked and lamed by other Horses (u). As this may be prevented either by carefully and accurately fixing his collar, or by keeping him in a loose box, it cannot in practice be considered a Vice. Spavin is an Unsoundness. See Blood and Bog-spa- Spavin. vin(jr), and Bone-spavin (3/). The inside of the leg, immediately under the knee, and Speedy cut. extending to the head of the inner splint-bone, is subject to injury from what is termed the Speedy-ciit, which takes place when a Horse with high action, and in the fast trot, violently strikes this part either with his hoof, or the edge 6f his shoe. Sometimes a bony enlargement is the result; at others, great heat and tenderness; and the pain from the blow seems occasionally to be so great, that the Hoi-se drops as if he were shot {z). Speedy-cut, like Cutting («), is the consequence of defective shape ; and therefore, where a Horse is sound at the time of sale, lameness from a Speedy-cut immediately afterwards is no breach of a Warranty of Soundness. A Splint, like a Bone-spavin {b) , is an excrescence or Splint, bony deposit on the leg of a Horse, and the danger in both cases is the probability of their interfering with his action ; the Bone-spavin, by preventing the proper flexion of the joint, and the Splint, by pressing on the sinews of the leg. Lameness is thus produced by each ; by Bone- spavin nearly always, by a Splint sometimes. It entirely depends on the situation of the bony tumour on the inside of the shank-bone, whether a Splint is to be considered an Unsoundness. If it is not in the neighbourhood of any joint, so as to interfere with its action, and if it does not press upon any ligament or tendon, it can be no cause of Unsoundness. And although it is often very unsisjhtly, it does not lessen the capabilities and value of the animal (c). In an action on the Warranty of a Horse " to be sound Decision on wind and limb at this tiine,^^ the breach of which was *^^ subject, lameness, produced by a Splint, it was given in evidence that a Splint might or might not be the efficient cause of lameness, according to its position, its size and extent; (w)Lib.U.K."TheHorse," 245. 344. (a) Cutting, ante. {x) Blood and Bog-spavin, {b) Bone-spavin, anfe. ante. (c)Lib.U.K. ''TheHorse," {y) Bone-spavin, ante. 365. («) Lib.U.K. " TheHorse," 84 CONTRACTS CONCERNING HORSES, &C. Sprain and Thickening of the Back Sinews. Star-gazer. Ewe-necked, that the Splint in this instance was in a very bad situa- tion, as it pressed upon one of the sinews of the leg and was calculated to produce, when the Horse was worked, inflammation of the sinew and consequent lameness. Lord Chief Justice Tindal said, " It now appears that some Splints cause lameness and others do not, and that the consequences of a Splint cannot be apparent at the time, like those of the loss of an eye or any other blemish or defect visible to a common observer. We therefore think that by the terms of this written warranty, the parties meant that this was not, at that time, a Splint which would be the cause of future lameness, and that the Jury have found that it was. We therefore think that the Warranty was broken (c?)." The Back Sinews are inclosed in a sheath of dense cellular substance, to confine them in their situation and to defend them from injury. Between the tendon and the sheath there is a raucous fluid to prevent friction ; but when the Horse has been overworked, or put to sudden and violent exertion, the tendon presses upon the delicate membrane lining the sheath, inflammation is pro- duced, and a different fluid is tliro\\Ti out, which coagu- lates, and adhesions are formed between the tendon and the sheath, and the motion of the limb is more difficult and painful. At other times, from violent or long-con- tinued exertion, some of the fibres which tie the tendons doAvn are ruptured. A slight injury of this nature is called a Sprain of the hack sinews or tendons, and when it is more serious the Horse is said to have Broken down (e). A Thickening of the hack sinews, which indicates a pre- vious and violent sprain, is an Unsoundness, because an alteration of structure has taken place, which must impair the natural usefulness of the Horse. When the muscle, whose ofiice it is to raise the neck and elevate the head, is too powerful in its action, the top of the Horse's head is pulled back and the muzzle protruded, the Horse cannot possibly carry his head well : he is what is technically called a Star-gazer : heavy in hand, boring upon the bit and unsafe. Inseparable from this is another sad defect, so far as the beauty of the Horse is concerned ; he is Ewe-necked, (d) Margetson v. Wright, 1 M. & Sco. 622. (e)Lib.U.K."TheHorse," 246. UNSOUNDNESS AND VICE. 85 that is, he has a neck like a ewe, hollowed above, pro- jecting beloAV, and the neck rises low out of the chest, sometimes lower even than the points of the shoulders {f). These being defects in the formation of a Horse are neither Unsoundness nor Vice. Strangles are peculiar to young Horses, almost all of strangles. w^hich have it once. It is quite different from Glanders (^), though they have sometimes been confounded. In its early stage it resembles a common cold and is accompa- nied with sore throat. It is not dangerous, and is Un- soundness only during the time the Horse is ill with it (A). String-halt is a singular and very unpleasant action of string-halt, the hind leg, arising from an irregular communication of nervous energy to some muscle of the thigh, obseiwable w^hen the Horse first comes out of the stable, and gra- dually ceasing on exercise. It is probably so called from its resemblance to the sort of " halt" produced by a ^' string" tied to the leg of a pig, and held in the hand of the person driving it. It has often been found in those Horses that have a more than common degree of strength and endurance, and is almost entirely confined to well bred Horses (i). There has always, until very lately, been a difference Held to be of opinion w'hether String-halt constitutes Unsoundness ; anUnsound- however, in Thompson v. Patteson it was held to be so, "^^^' and as the case has not been reported it A\dll now be given at some length. It was tiied before Mr. Justice Cresswell at the Liverpool Summer Assizes, 1846, and Avas an action of Assumpsit on the warranty of a Horse, the breach of which was Wilremhaunch or Stringhalt and Spavin. The plaintiff and defendant were both Horsedealers, and it appeared that the plaintiff met the Horse in ques- tion coming to Chester Fair, and at that time there was a kick apparent on one hock. The plaintiff mounted and tried him, but said he had got a String-halt ; this the defendant denied, saying there was nothing but the previous kick. The Horse was eventually bought for £52, the defendant warranting him " sound, except a kick on the hock." The Horse was String-halted on both legs. (/) Lib.U.K. "TheHorse," 123 ; Story on Contracts, 309. 1^5. (i) Lib.U.K. " TheHorse," {g) Glanders, ante. 365. {h) Lib.U.K. " TheHorse," CONTRACTS CONCERNING HORSES, &C. Veterinary Surgeons and other witnesses were called on both sides, who all agreed that there was String-halt, but differed in their opinion as to the existence of a Spavin. To prove Stnng-halt unsoundness, Mr. Howarth of Manchester, a Veterinary Surgeon, described it to be a spasmodic affection of the abductor muscle of the hind leg, a nerve coming through the trunk being affected. He said that a Horse affected by it loses his condition and is not able to do so much work. Mr. Ellis of Liverpool, a Veterinary Surgeon, stated that String-halt is a disease of the sciatic nerve, rendering a Horse less fit for work and impeding him in backing, and that he had practical experience showing it to be a disease. Mr. Bretherton of Liverpool, a Veterinary Surgeon of twenty-four years' practice, said that String-halt is caused by pressure on the sciatic nerve, that it increases by work, and is Unsoundness. He had seen Horses become quite useless from it, but that more aggravated cases were seen in the country than any submitted to the Veterinary College. He had seen Horses in his father's stables quite useless from it, but that at first it is only observable when the Horse is turning round. The defendant called Mr. Gregson, a Veterinary Sur- geon who had attended the Horse, and did not consider String-halt Unsoundness. But on being questioned by the Judge he admitted that it frequently gets worse, and that when very bad it impedes the action of the Horse, making him less competent for work. Mr. Taylor, another Veterinary Surgeon, said that String-halt does not impair a Horse's condition. He had examined the Horse in question and considered him Sound. Upon this his Lordship said, '^ It is a question for the Jury whether String-halt produces those effects which in the eye of the law renders him Unsound.^' And in sum- ming up shortly afterwards his Lordship said to the Jury, " You have heard the evidence as to String-halt ; if you are satisfied that it is a disease calculated to impair the natural usefulness of the Horse you must find for the plaintiff, it being admitted that the Horse had it." The Jury found a verdict for the plaintiff. For Thickening of the Back Sinews see Sprain and Thickening of the Back Sinews {k). (fc) Sprain and Thickening of the Back Sinews, ante. UNSOUNDNESS AND VICE. 87 Thick-wind consists of short, frequent and laborious Thick-wind, breathings, especially when the Horse is in exercise ; the inspirations and expirations often succeeding each other so rapidly as evidently to express distress, and occasionally almost to threaten suffocation. Some degree of it fre- quently exists in round-chested and fat Horses, and heavy draught-horses are almost invariably Thick-winded, and so are almost all Horses unused to exercise or violently exercised on a full stomach. The principal cause, how- ever, of Thich-wind is previous inflammation, and par- ticularly inflammation of the bronchial passages. Thick- wind is often the forerunner of Broken-wind (/), and when it proceeds from inflammation it is an Unsound- ness (m). Thinness of Sole which does not afford sufficient pro- Thinness of tection to the inner or sensible sole makes a Horse liable ^•^l®- to lameness. In a case tried at Liverpool before Mr. Justice Cress- Held not an well, it appeared that a Horse, whose feet were Thiti- ^nsound- soled, was sold warranted sound. Some time after sale he went lame, and an action was brought on the war- ranty. Witnesses were called for the defendant, who stated that the mere fact of a Horse's feet being formed in this manner would not of itself render him Unsound. And Mr. Justice Cresswell in summing up said, " The plaintiff must, in order to recover in this action, make out that the Horse w as Unsound at the time of sale ; a defective formation, however, not producing lameness at the time of sale, is not, in my opinion. Unsoundness.'^ His lordship then referred to the case of Brown v. El- kington {n), where Lord Abinger, C. B., held that Curby-hocks (o) not producing lameness at the time of sale were not a breach of warranty of soundness, though a Curb was afterwards thrown out. And his lordship then said, "This case shows that the mere fact of the Horse in question being Thin-soled at the time of sale, is not sufficient to constitute a Breach of the warranty oi Soundness ; and therefore unless you are of opinion that that peculiar formation had produced, at the (/) Broken- wind, ante. («) Brown v. Elkington, 8 (7n)Lib.U.K."TheHorse," M. & W. 132. 193 ; Atkinson v. Hor ridge ^ (o) Curby-hocks, ante. Appendix. CONTRACTS CONCERNING HORSES, &C. Tripping. Vicious to clean. time of sale, actual lameness, you will find for the de- fendant,'' which the Jury accordingly did (p). In the neighbourhood of the joints are several bags, containing a mucous fluid, for the purpose of lubricating the parts, and these sometimes become inflamed and en- larged, as in Wind galls (p). A similar enlargement is found above the hock, between the flexor of the foot and the extensor of the hock, on both sides of which it projects in the form of a round swelling. It is called a Thoroughpin, and is an indication of considerable work, but, unless it be of great size, it is rarely attended with lameness {q). It constitutes Unsoundness when it causes lameness, or perhaps when it is so large as to render it likely that lameness will soon ensue; however, in such a case it would be very conspicuous, and a special war- ranty against it had better be taken. A Thrush is the inflammation of the lower surface of the inner or sensible frog, and the secretion or throwing out of pus, almost invariably accompanied by a slight degree of tenderness of the frog itself, or of the heel a little above it, and if neglected, leading to diminution of the substance of the frog, and separation of the horn from the parts beneath, and the production of fungus and Canker (r), and ultimately a diseased state of the foot, destructive of the present, and dangerous to the future usefulness of the Horse (s). A Thrush is an Un- soundness. Tripping arises from a heavy forehead, and from the forelegs being too much under the Horse, so that, like Cutting (^), it is a consequence of malformation ; it also may indicate tenderness of the foot, Grogginess(w), or old lameness (a;). As it arises from such causes it cannot be called a bad habit, and is therefore not a Vice, but in some cases it indicates an alteration of structure. A great man 3^ Horses, perfectly quiet in other respects, QjeVicious to clean, and this probably is the consequence of great sensibility^ in the skin, and of maltreatment at some time or other; and although it may be gradually (jo) Bailey v. Forrest, 2 C. & K. 131. (9)Lib.U.K. "TheHorse," 265. (r) Canker, ante. (5)Lib.U.K."TheHorse," 366. {t) Cutting, ante. (u) Grogginess, ante. (a)Lib.U.K."TheHorse," 344. UNSOUNDNESS AND VICE. 89 overcome by kindness (y), yet, Avhen it exists in such a degree as to be dangerous, it is a Vice. The same may be said of being Vicious to shoe as Vicious to where a Horse is Vicious to clean, except that it is much ^^°^- less common 5 however, when it is dangerous to shoe such a horse, he must be considered to have a Vice. Horses perfectly white or cream coloured have the Wail-eyed. iris white and the pupil red. When Horses of other colours, and they are usually pied ones, have a white iris and a black pupil, the}^ are said to heWall-eyed. Vulgar opinion has decided that a Wall- eyed Horse is never subject to blindness, but this seems altogether erroneous, as there appears to be no difference of structure which can produce this exemption (z). As to Warbles see Saddle-galls («). Warbles. Warts are tumours of variable size, arising first from Warts, the cuticle, and afterwards connected with the true skin by means of the vessels which supply the growth of the tumours. They are found sometimes on the eyelids, on various parts of the skin, and on the prepuce (6). Unless, however, they exist to such an extent as to impede any of the natural functions, or in such a situation as to pre- vent a saddle, bridle, or harness being put on a Horse, they are 7iot Unsoundness (c) . For Water-farcy see Farcy (d) . Water-farcy. Weak-foot often arises from disease, but in many in- Weak foot, stances from the natural construction of the foot. In the slanting of the crust fi"om the Coronet to the toe, an angle is formed, amounting probably to not more than forty instead of fortj^-five degrees; and after the Horse has been worked for a year or two, the line, instead of being straight, becomes a little indented or hollow mid- way between the coronet and the toe. Horses with these feet can never stand much work. They will be subject to Corns (e), to Bruises, to Convexity of the sole, to Punctures in nailing, to Breaking away of the crust, to Inflammation of the foot, and to Sprain and injur^^ of the pastern, the fetlock, and the flexor tendon {f). (2/)Lib.U.K. "TheHorse," (c) Kiddell v. Burnard, 9 338. M. & W. 670. (2) Ibid. 93. {d) Farcy, ante. (a) Saddle-galls, ante. (e) Corns, ante. (ft) Lib.U.K. "TheHorse," (/)Lib.U.K."TheHorse," 381. 310. 90 Weaving. Wheezing. Whistling. Wilrem- haunch. Wind-galls. CONTRACTS CONCERNING HORSES, &C. When it is the result of disease, it is such an alteration of sti'ucture as constitutes Unsoundness. Weaving is a motion of the head, neck and body from side to side, like the shuttle of a weaver passing through the web, and hence the name given to this peculiar and incessant action. It indicates an impatient, irritable temper, and a dislike to the confinement of the stable ; a Horse which is thus incessantly on the fret will seldom carry flesh, or be safe to ride or drive (^). This being a bad habit is a Vice, when it either injures a Horse's health, or makes him dangerous. The Wheezer utters a sound not unlike that of an asthmatic person when a little hurried. This is a kind of Thick- wind (A), caused by the lodgment of some mu- cous fluid in the small passages of the lungs, and it frequently accompanies Bronchitis. Wheezing can be heard at all times, even when the Horse is at rest in the stable, and thus differs from Roaring (z), which is con- fined to the increased breathing during considerable ex- ertion (A). It is an Unsoundness {I). The Whistler utters a shriller sound than the Wheezer, but only when in exercise, and that of some duration, as a sudden motion will not always produce it. It seems to be referable to some contraction in the windpipe or larynx. The sound is a great nuisance to the rider, and the Whistler very speedily becomes distressed (yw). This is an Unsoundness (n). Wilremhaunch is the Lancashire name for String- halt (o). There are few Horses perfectly free from Wind-galls, but they do not interfere with the action of the fetlock or cause lameness, except when they are numerous or large. Like Thoroughpin (p), they do not constitute Unsound- ness unless they cause lameness, or perhaps when they are so large and numerous as to make it likely they will soon cause \t{q). In an action which was brought on the warranty of a (^)Lib.U.K."TheHorse," 345. {h) Thick- wind, ante. (i) Roaring, ante. (Ar)Lib.U.K.''TheHorse," 196. (/) Onslow V. Eames, 2 Stark. N. P. C. 8L (m) Lib. U.K. "TheHorse," 196. (n) Onslow v. Eames, 2 Stark. N. P. C. 81. (o) String-halt, ante. (p) Thoroughpin, ante. (5)Lib.U.K."TheHorse," 366. UNSOUND>"ESS AND VICE. 91 Horse, the breach of which was Wind-galls, a verdict was found for the plainti£F(r). The Wind-galls had pro- bably produced lameness, as there appeared not to have been any dispute about the Unsoundness, but only about the form of action. Wind-sucking bears a close analogy to Crib-biting (5) ; wind- suck- it arises from the same causes, and the same results i°&- follow. The Horse stands wit^^ his neck bent, his head drawn inward, liis lips alternately a little opened and then closed, and a noise is heard as if he were suck- ing (^). It is a Vice. In some few instances the second teeth do not rise im- Wolfs tooth, mediately under the temporary or middle teeth, but somewhat by their side. The tooth is pushed out of its place to the fore part of the first grinder, and remains for a considerable time under the name of a Wolf's tooth, causing swelling and soreness of the gums, and fre- quently wounding the cheeks. This is easily remedied by drawing the tooth (m), and though an Unsoundness while it lasts, no dispute would be likely to arise in prac- tice respecting it. The Yellows, otlierwise the Jaundice, is the introduc- Yellows, tion of bile into the general circulation, and which is usually caused by some obstruction in the ducts or tubes which convey the bile from the liver to the intestines. It exhibits itself by a yello^\^less of the eyes and mouth, and any part of the skin not covered with hair {x). It is, while it lasts, an Unsoundness. (r) Stuart v. Wilkins, Doug. 340. 18. (M)Lib.U.K.'«TheHorse," (5) Crib-biting, ante. 140. It) Lib.U.K. "TheHorse," {x) Ibid. 213. 92 CONTRACTS CONCERNING HORSES, &C. CHAPTER V. WARRANTY ; SALE AND WARRANTY BY AN AGENT ; AND PATENT DEFECTS. Warranty. Warranty required in buy- ing a Horse 93 War rarity of Title id. Not implied by Law of England 94 How it may be inferred. . id. When the Consideration fails id. Mode of trying a disputed Title id. Reason for requiring a Warranty id. Buyer should protect him- self by one 95 What constitutes a War- ranty id. Article named in a Sold Note id. A Sound Price not tanta- mount to a Warranty. . id. A General Warranty ... ^Q A Qualified Warranty . . id. A Limited Warranty . . . id. A Special Warranty . . . . id. A Written Warranty ... id. A Special Agreement ... 97 Form of Warranty id. Effect of a Written War- ranty id. The Parties are bound by it alone id. It cannot be extended by implication id. A Warranty is Several though the Contract be entire id. A Warranty applies to the Time of Sale 98 Warranting afutureEvent id. Buying for a particular Purpose id. Must be reasonably fit for the Purpose id. A Carriage Horse id. Quiet in Harness id. Unfitness must be clearly proved id. Warrantor' s Liability . . 100 Sale avoided by Fraud . . id. Sale and Warranty by an Agent. An Agent cannot delegate his Authority 100 Nor exceed it 101 Agency determines by Principal's Death.... id. Difference between a re- munerated and an unre- munerated Agent .... id. Agent acting without pro- per Authority id. His Personal responsibi- lity id. Where he cannot be sued on the Contract id. But is liable in Damages id. Principal answerable for his Fraud 102 Or Damage caused by his Negligence id. WARRANTY. 93 Rule as to Principal and Agent 102 Person described as Agent may be proved to be Principal 103 Principal cannot be proved to be an Agent id. Their respective Rights of Action on a Contract . . id. Warranty by a Servant at the Time of Sale .... id. Warranty by a Servant after Sale 104 Warranty by a Servant forbid to give One .... id. Warranty by a Stranger forbid to give One. . . . id. Master unwilling to stand by his Servant's War- ranty 105 Rule as to a Servant bind- ing his Master id. Warranty by a Person en- trusted to deliver .... 10.5 Agent employed to take a Warranty 106 Action against a pretend- ed Agent id. Patent Defects. Not covered by a Warranty id. In what they consist .... id. How far the Loss of an Eye is Patent id. " Bright Eye" Where the Buyer knows the Defect 108 Where Defects are dis- cussed id. Suspected Defects 109 Purchase without Inspec- tion id. WARRANTY. In buying a Horse, as well as in making an Exchange, Warranty re- the maxim caveat emptor is the Rule of law, and a q^^ij^d in party who has got an unsound Horse has in neither case H^o^rse^ ^ any remedy unless there be evidence either of express Warranty or of Fraud. For in the general sale of a Horse the seller only warrants it to be an animal of the description it appears to be, and nothing more ; and if the purchaser makes no inquiries as to its soundness or qualities, and it turns out to be unsound or restive or unfit for use, he cannot recover as against the seller, as it must be assumed that he purchased the animal at a cheaper rate (a). According to the Roman law (b), and in France (c) and Warranty of Scotland, and partially in America (c?), there is always an ^^*^^- (a) Jones v. Bright, 3 'M. &P. 175. (b) Domat, book 1, tit. 2, s. 2, art. 3. (c) Code Civil, chap. 4, s. !► art. 1603. (d) 1 John's Rep. 274 (Amer.); Broom's Maxims, 628. 94 CONTRACTS CONCERNING HORSES, &C. Not implied by law of England. How it may be inferred. Where the consideration fails. Mode of try- ing a dis- puted title. Reason for requiring a warranty. implied contract that the vendor has the right to dispose of the article which he sells. But by the law of England there is no implied War- ranty of title in the contract of sale of a personal chattel ; and in the absence of fraud, a vendor is not liable for a defect of title, unless there be an express warranty, or an equivalent to it, by declaration or conduct (^). A warranty may be inferred from usage of trade, or from the nature of the trade being such as to lead to the conclusion that the person carrying it on must be under- stood to engage that the purchaser shall enjoy that which he buys, as against all persons ; as where articles are bought in a shop professedly carried on for the sale of goods (^). If it be shown that it was the understanding of both parties, that the bargain should be put an end to if the purchaser should not have a good title, it would seem that the purchaser may recover back his money as on a con- sideration which has failed {g). A dispute respecting the title of different parties to a Horse may be decided by an interpleader issue. Thus a question was tried whether certain Race horses named ^gis, Ninnyhammer, and War Eagle, were the property of the plaintiff when they were seized in execution by the sheriff of Cambridgeshire, at Newmarket, under aj^. fa.^ consequent on a judgment obtained by the defendant against a gentleman named Carew, and the Jury found a verdict for the plaintiff (7i). The reason laid down for requiring a Warranty of soundness in buying a Horse is, that it is well known they have secrect maladies which cannot be discovered by the usual trials and inspections, and that a Warranty prevents the purchaser from being damnified by those latent Defects against which no prudence can guard ; as it differs from the case of a manufactured article where a merchant by providing proper materials and workman- ship may prevent Defects (i). And the late Mr. Youatt said, *' A man should have a more perfect knowledge of Horses than falls to the lot of most of men, and a perfect (^) Morley v. Attenborough, 3 Exch. 500; S. C. n L. J. 148, (Exch.) (h) Ford V. Sykes, before Lord Campbell, C. J., Cam- bridge Spring Assizes, 1853. (0 1 Rol. Abr. 90; Jones v. Bright, 5 Bing. 544. WARRANTY. 95 knowledge of the vendor too, who ventures to buy a Horse without a Warranty (A)." But the same, mutatis mutandis, may very justly be said of a person who ven- tures to give a Warranty on the sale of a Horse. If a buyer, however, means to protect himself from Buyer should hidden defects, he must take a Warranty, and he is not ^l^}^^ ^^™" protected otherwise, unless he can make out fraud (/). It is much better both for the buyer and seller when What con- the latter states whether \\e professes to Warrant or not ; ^arr^rft^ because where nothing has been said on that point, a con- siderable degree of doubt must frequently rest upon the case, and then it is only by interpreting the expressions used at the time of sale that even an opinion can be formed as to whether a WaiTanty were ever intended. No particular words are necessary to constitute a AYar- ranty ; if a man says, " This Horse is sound," that is a Warranty (w); and it is not necessary that the seller should say, " I warrant;" it is sufficient if he says that the article is of a particular quality or is fit for a parti- cular purpose («). The general Rule laid down by Mr. Justice Bayley is, that whatever the vendor represents at the time of sale is a Warranty (oj. Therefore if a person at the time of sale say, '' You may depend upon it the Horse is perfectly quiet and free from Vice,^' it is a War- ranty (j9). So it was held that a Sold Note amounted to a war- Article ranty that the article delivered should be as named in the soidVo^e^ note, the contract being a sale of a certain known article of commerce {q). There was at one time a general opinion that a Sound A sound pnce given for a Horse was tantamount to a Warranty p^'^^ "°* of Soundness ; but Lord Mansfield considered the doc- to a war- trine to be so loose and unsatisfactory that he rejected it, ranty. and laid down the following Rule : '' There must either be an express Warranty of Soundness, or Fraud in the seller, to maintain an action (?').'' {k) Lib.U.K."The Horse," (o) Woodw. Smith, 4 C. & 368. P. 45. (/) Ormrod v, Huth, 14 M. (p) Cave v. Colman, 3 M. & & W. 661. R. 2. (m) Per Best, C. J., Salmon (q) Henderson v. Blake, Q. v. Ward, 2 C. & P. 211. B. 1852 ; 3 M. Dig. 326. (?«) Per Best, C. J., Jonesv. (r) Parkinson v. Lee, 1 East, Bright, 3 M. & P. 173. 323. 96 CONTRACTS CONCERNING HORSES, &C. A General warranty. A Qualified warranty. A Limited warranty. A Special warranty. A written warranty. A General Warranty is an unconditional undertaking that a Horse or any other article really is what the War- rantor professes it to be. A Warranty may be either General or Qualified. If a person at the time of his selling a Horse say, " 1 never warrant, but he is sound so far as I know,'' it is a Qua- lified Warranty, and an action of Assumpsit may be maintained upon it by the purchaser, if it can be proved that the seller knew of the Unsoundness (r). By the conditions of sale at Repositories and public Auctions, a specified short time is usually allowed, within which the purchaser must give notice of any breach of Warranty. If he neglect to do this, he has no remedy, unless such condition has been rendered inoperative by Fraud or Artifice. And in a case where a Wan-anty was to last till the noon of the following day, when the sale was to become complete, Mr. Justice Littledale said, " The Wan-anty here was as if the vendor had said, ^ after twenty-four hours I do not warrant ; ' such a sti- pulation is not unreasonable (s)." When there is any suspicious place apparent to the parties, which they discuss, or if the seller knows of some defect and does not wish to answer for any Unsoundness which may proceed from it, he should give a Warranty specially excepting his liability for any Unsoundness which may proceed from the defect in question (t)] or expressly state what he warrants : as where a Mare was warranted to be " a good hunter, and to have one eye(z«)." But where the purchaser requires the vendor to be answerable for some defect, he should take a Spe- cial Warranty against the effects which may be likely to proceed from it. The buyer should always take care to distinguish be- tween a Warranty and a Representation ; however, he is safe if he take a Written Warranty, and refuse to believe any Representation the seller will not commit to paper. A Written Warranty should comprehend not only Sound- (r) Wood v. Smith, 4 C. & P. 45. (s) Bywater v. Richardson, 1 A. & E. 568 ; S. C.Z^.8c M. 748 ; and see Best v. Os- borne, 2 C. cSr P. 74. {t) Jones V. Cowley, 4 B. & C. 445 ; aS. C. 6 D. & R. 533 ; and Hemming v. Parry, 6 C. & P. 580. (m) Hii^gs V. Thrale, before Chief Baron Pollock, Feb. 18, 1850. nt. WARRANTY. 97 ness, but freedom from Vice, and also Quietness and Age, if necessary. Also any Special terms which may have been agreed A Special upon at the time of sale ; for instance, an agreement to ^greemei take back the Horse, in case he does not suit or is un- sound, should be made a part of the Written Warranty or Agreement upon which the sale is effected {y). The following form of Receipt and Warranty will be Form of found, for general purposes, short and comprehensive : — warranty. " Received of P. J. D. fifty pounds for a grey Gelding, warranted only six years old, Sound, free from Vice, and quiet to ride or drive either in single or double harness. £50. R. F." Where the whole matter passes in parol, all that has Effect of a passed may sometimes be taken together as forming par- ^y^^"^". eel of the contract, though not always, because matter talked of at the commencement of a bargain may be ex- cluded by the language used at its termination ; but if the contract be in the end reduced to writing, nothing which is not found in the writing can be considered as a part of the contract (2:). The parties are bound by the Written Warrant}'^ alone. The Parties unless some Fraud can be shown ; and even if there be a ^^e bound by Representation it does not avail. If a man brings me a Horse, and makes any Representation whatever of his quality and soundness, and afterwards we agree in writing for the purchase of the Horse, that shortens and corrects the Representation ; and whatever terms are not contained in the contract do not bind the seller, and must be struck out of the case {a). Upon a contract for the sale of goods with a particular it cannot be express Warranty, the Court will not extend such War- f^tended by ^,.1.'^'. ITT- -n /.. implication. ranty by implication, as the Maxim, Lixpressum jacit cessare taciturn, applies to such case (b). Thus if a man sell a Horse, and warrant him to be sound, the vendor knowing at the time that the purchaser wants him for the purpose of carrying a lady, and the Horse though sound, proves to be unfit for that particular purpose, this would be no breach of Wan-anty(^). {y) Payne\. Whale, 7 East, (a) Per Gibbs, J.,P/cA"mwg 274. V. Dowson, 4 Taunt. 785. {z) Per Abbott, C, J., Zam {b) Dickson v. Zixinia, 10 V. Old, 2 B. & C. 627. C. B. 602. F 98 CONTRACTS CONCERNING HORSES, &C. A Warranty When several Horses are sold at an entire price, and a thori^the Warranty is given as to all, the contract of sale is entire, contract be but the Warranty is several (b). entire. A Warranty only extends to the state of a particular A Warranty commodity at the time of sale, unless the Warrantor ex- liine^of Saie^ j97'<^s5/y fixes some future period to which he undertakes to extend it(c). Thus Blackstone says, "A Warranty can only reach to things in being at the time of the War- ranty, and not to things in future; as that a Horse is sound at the time of buying him, not that he will be sound two years hence (d). And in a case in the Year Book in the reign of Edward the Fourth, Choke, J., says, '' If I sell a Horse and warrant him to travel thirty leagues a day, and he fail to do it, I am not liable to an action of Deceit, for the Warranty is void, because a per- son only warrants such a thing as ivas at the time of Warranty, and not a thing which is to come (e)." Warranting a There is no doubt, however, that a Future JEvent may future Event. |jg ^yarranted if there be an exyress undertaking to that effect if ) ] and it makes no difference whether the War- ranty be made at the time of sale or before sale, so long as the sale is made upon the faith of the AVarranty {g). For where a seller informed a buyer that one of two Horses he Avas about to sell him had a Cold, but agreed to deliver both at the end of a fortnight sound and free from blemishes, and at the expiration of that time both Horses were delivered, but one had a Cough and the other a Swelled Leg, which was apparent at the time of sale, the seller brought an action to recover the price, and a verdict was found for the buyer. The Court of Common Pleas refused to distui-b it or grant a ncAv trial, as the Warranty did not apply to the time of sale but to a future period {h). Buying for a On the sale of goods, if the parties agree to the specific particular chattels, there is no implied Warranty on the part of the ^"■pose. geller that the goods shall be fit for any Particular pur- pose {i). (b) See Story on Sales, 191 ; Doug. 705. Symonds v. Carr, 1 Camp. 361. {g) Pasley v. Freeman, 3 T. {c)Eden\. Parkinson, T)o\xg. R. 5d. 767. (/<) Liddnrd v. Kain, 9 {d) 3 Bla. Com. 165. Moore, 356 -, S. C. 2 Bing. (e) Year Book, 9 Edw. 4, 183. p. 6. (i) Per Parke, B., Sutton if) Eden v. Parkinson, v. Temple, 12 M. & W. 55. WARRANTY. 99 But if a person sell a commodity for a Particular pur- Must be rea- Vose he must be understood to warrant it reasonably fit sonably fit •^1 j:" 1 /z.. Ti" n TT for the Pur- and proper lor such purpose (A). It a man sells a Hoi*se pose. generail}', he warrants no more than that it is a Horse; tbe buyer puts no question, and perhaps gets the animal cheaper. But if he asks for a Horse to carry a lady, or a child, or to drive in a particular carriage, he who knows the qualities of the aninial aud sells, undertakes on every principle of honesty that it is fit for the purpose indicated; but if it should turn out that the Horse was vicious, or had never been in harness, the buyer would be entitled to recover, on proving that the Horse was unfit for the pur- pose for which it was sold, although it might be fit for several other purposes. The selling upon demand for a Horse with particular qualities, is an afiirmation that he possesses those qualities fZ). And in a late case, Mr. Baron Parke said, " Suppose a A Carriage party offered to sell me a Horse of such a description as Horse, would suit my carriage, he could not fix on me a liability to pay for it, unless it were a Horse fit for the purpose it was wanted for ; but if I describe it as a particular bay Horse, in that case the contract is performed by his send- ing that Horse (w?)." Proof that a Horse is a good drawer only will not Quiet in satisfy a warranty that he is " a good di-awer and pulls Harness, quietly in harness." And the Court of King's Bench held that it was quite clear these were convertible terms, 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 war- ranty; the word ^00^ must mean ''good" in all particu- lars (w). And where a Horse was warranted " sound and quiet in all respects,^ ^ Lord Abinger, C. B., held it to in- clude the being quiet in harness (o). But in setting up a Breach of such a Warranty, it Unfitness must be clearly proved that the Horse at the time of sale ^l^^^^ was unfit for the purpose for which he was bought ; and proved. if he has gone quietly with persons of ordinary skill, {k) Per Abbott, C. J., Gray M. & W. 406. v. Cox, 4 B. & C. 115. («) Coltherd v. Puncheon, 2 (/) Per Best, C. J., Jones D. & R. 10. V. Brisht, 5 Bing. 544 ; and (o) Smith v. Parsons, 8 C. see 3. SALE AND WARRANTY BY AN AGENT. 101 in his stead, the Maxim of law being, Delegatus non potest delegare {u). An Agent eraploj^ed for a particular purpose has no Nor exceed right to exceed his authority. Thus a Servant or other ^^' person authorized to Sell a Horse, must receive payment for him in money; he cannot Exchange him for an- other {x). An Agency determines ipso facto by the death of the Agency Principal, and is also capable of being revoked by him in by^pr^c"i-^ his lifetime, with as little ceremony as it was created {y). pal's Death. There is a difference between the Principal's rights, Difference against a remunerated and against an unremunerated between a Agent. The former having once engaged, may be com- and an^im-^*^ pelled to proceed to the task which he has undertaken ; remunerated the latter cannot, for his promise to do so being induced Agent. by no consideration, the Rule, Ex nudo pacto non oritur actio, applies. But if he do commence his task, and afterwards be guilty of misconduct in performing it, he will, though unremunerated, be liable for the damage so occasioned ; since by entering upon the business, he has prevented the employment of some better qualified per- son (z). "Wherever a party undertakes to do any act as the Agent acting Agent of another, if he does not possess any authority without from the Principal, and the other does not know it, or if {horfty^"" he exceeds the authority delegated to him, he will be per- sonally responsible to the person with whom he is dealing, for or on account of the Principal {a). If the Agent contracts in such a form as to make him- His Personal self personally responsible, he cannot afterwards, whether [^f:^°°^^" his Principal Avere or were not known at the time of the contract, relieve himself from that responsibility {b). Where it clearly and expressly appears, that a person Where he reallv acting: as Agent fairlv contracts as such Agent in ^^"not he *■ ^ *' sued on, tliG the name of his Principal, and professes to make that contract. Principal liable, the Agent cannot be sued upon the contract (c). But he may be sued so as to make him liable in But is liable in Damages. (m) 2 Steph. Com. 59. (a) Story's Commentaries, {x) Thompson v. Davenport, 226 ; Harper v. Williams, 4 15 East, 69. Q. B. 232. iy) 2 Steph. Com. 57. (&) Higgins v. Senior, 8 M. U) See Smith's Merc. Law, & W. 845. 112; Balfe v. West, 22 L. J. (c) Lewis v. Nicholson, 21 176 (C.P). L. J. 316 (Q. B.) 102 CONTRACTS CONCERNING HORSES, &C. Damages, for the loss sustained by the person with whom he has entered into the contract (c). Principal The Rule of law is, that, if an Agent is guilty of fraud fo/his^Fraud. ^^ transacting his Principal's business, the Principal is ' responsible {d). Damage A master sent his Servant with a Horse to a Fair, at Nelu^ence^^^ such a distance that the Servant was obliged to put the Horse up for the night; and the Servant put him up in a stable belonging to a tenant of his master. The Horse was glandered, and the tenant brought an action against the master for damages sustained by him in consequence of the loss of Horses and cattle by infection. It was held by the Court of Session in Scotland, that placing the Horse in the tenant's stable was an act done by the Servant in the proper execution of his duty, and for which the master was liable, upon proof merely of the Servant's knowledge of the disease (e). Rule as to The following Rule on the subject of Principal and a'^T"^^^^"'^ Agent was laid doA\Ti by Lord Tenterden : " If a person sells goods, supposing at the time of the contract that he is dealing with a Principal, but afterwards discovers that the person with whom he has been dealing is not the Principal, but Agent for a third person, though he may in the meantime have debited the Agent with it, he may afterwards recover the amount from the real Principal ; subject hoAvever to this qualification, that the state of the account between the Principal and the Agent is not altered to the prejudice of the Principal. On the other hand, if at the time of the sale the seller knows that the person who is nominally dealing with him is not Principal but Agent, and also knows who the Principal really is, and notwithstandino^ all that knowledo^e chooses to make the Agent his debtor, then, according to the cases of Addison v. Gandasequi {f) and Paterson v. Gandase- qui (g), the seller cannot afterwards, on the failure of the Agent, turn round and charge the Principal, having once made his election at the time when he had the power of (c) Lewis V. Nicholson, 21 {e) Baird v. Graham, 14 L. J. 316 (Q. B.) ' Court of Sess. (Sco.) 615. (d) See per Parke, B., (/) Addison v. Gandasequi, Murray v. Mann, 2 Exch. 4 Taunt. 574. 539; Cornfoot v. Foivke, 6 (g) Paterson y. Gandasequi, M. & W. 358. 15 East, 69. SALE AND WARRANTY BY AN AGENT. 103 choosing between the one and the other (^)." But the mere knowledge at the time of the contract that there is a Principal, if his name be not disclosed, will not prevent the seller from resorting to the Principal, though he had debited the Agent (A). Where a person describes himself in a written instru- Person de- ment as the Agent of an unnamed Principal, it is com- ^?^^^^^ ^* petent for the party with Avhom he contracts to show that, be proved to although described as Agent, he is in fact the Principal (^). be Principal. Although the Rule of law is, that where a contract is Principal made by an Agent, the Principal may come in and take proved to be the benefit of it, that doctrine cannot be applied wdiere an Agent. the Agent contracts as Principal (k). Thus, Lord Ellen- borough said, "If one partner makes a contract in his individual capacity, and the other partners are willing to take the benefit of it, they must be content to do so, according to the mode in which the contract w^as made (Z). Thus in Assumpsit on a charter-party ex- ecuted, not by the plaintiff", but by a third person, who in the contract described himself as "owner" of the ship, it was held, that evidence w^as not admissible to show that such person contracted merely as the plaintiff''s Agent (m). The Rule of law is, that the Agent who makes the con- Their re- tract, may bring an action on the contract in respect of ^P^uJ^^^r his privity, and the Principal in respect of his interest (n). tion on a' A Servant employed to sell a Horse and receive the Contract, price has an implied authority to w^arrant him sound Warranty by wdthout any special authority for that purpose. And ^^e"^'^"'^ T w^here a warranty had been so given. Lord EUenborough sale. said, "If the Servant w^as authorized to sell the Horse and to receive the stipulated price, I think he was inci- dentally authorized to give a Warranty of Soundness. It is now most usual on the sale of Horses to require a Warranty; and the Agent who is employed to sell, when he warrants the Horse, may fairly be presumed to be acting within the scope of his authority. This is the common and usual manner in Avhich the business is done, and the Agent must be taken to be vested with powers to (/«) Tliompson v. Davenport, (I) Lucas v. De la Cour, 1 9 B. & C. 86. M. & S. 249. (i) Carry. Jackson, 7 ^x.ch. (m) Humble v. Hunter, 12 .382. Q. B. 310. (k) Humble v. Hunter, 12 (n) Sykes v. Giles, 5 M. & Q. B. 315. W. 650. 104 CONTRACTS CONCERNING HORSES, &C. transact the business with which he is entrusted in the common and usual manner («)." Warranty by What an Agent says as a Warranty or Representation after Sale ^* ^^^^ ^^^^^ ^^ ^^^^ respecting the thing sold, is evidence against the Principal, but not what he has said at another time. And Lord Ellenborough said, "If the Servant is sent Avitli a Horse by his INIaster, and which Horse is oft'ered for sale, and gives the direction respecting his sale, I think he thereby becomes the accredited agent of his master, and what he has said at the time of sale, as part of the transaction of selling, respecting the Horse, is evidence ; but an acknowledgement to that effect, made at another time, is not so : it must be confined to the time of actual sale, when he was acting for his master. I think, the master having entrusted the Servant to sell, he is entrusted to do all he can to effectuate the sale ; and if he does exceed his authority in so doing he binds his master {p)J^ Warranty by If the Servant of a Horsedealer, Avith express directions a Servant for- ^^^ ^^ warrant do warrant, the master is bound : because bid to give 1 o 1 • 1 1 • 11 • • one. the Servant having a general authority to sell, is m a condition to warrant, and the master has not notified to the world that the general authority is circumscribed (^r). And if a person keeping Livei^ stables, and having a Horse to sell, du-ects his Servant not to warrant him, and the Servant does nevertheless warrant him, the master is liable on the Warranty, because the Servant was acting within the general scope of his authority, and the public cannot be supposed to be cognizant of any private conversation between the master and Servant (r). And where the owner of a Horse sold by a Livery stable keeper with a Warranty went to the buyer and requested to have the Horse back, stating that he did not authorize the Warranty of Soundness, and the buyer refused to give it up, saying, " I know nothing of you, I bought the Horse of Mr. Osborne ; " such a refusal was held to be no waiver of the AVarranty (s). Warranty by But if the owner of a Horse w^ere to send a Stranger ^^u'^^"/^'^- to a Fair, with express directions not to warrant the forbid to give tt i i i i i i -i one. Horse, and the latter acted contrary to the orders, the (o) Alexander v. Gibson, 2 ing v. Busk, 15 East, 45. Camp. 355. (r) Per Ashurst, J., Fenn (p) Hehjer v. Hawke, 5 v. Harrison, 3 T. R. 760. Esp. 72. (s) Best v. Osborne, 2 C. & • (q) FevBayley, J., Picker- P. 74. SALE AND WARRANTY BY AN AGENT. 105 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 (^). But if the master, under such circumstances, is un- Master un- willing to stand to the Warranty given by his Servant, "^'^'j?,^°, . he is bound to take back the Horse and return the money seTvanfs if it has been paid(^). And on this point Lord Abinger, Warranty. C. B., said, " Put the ordinary case of a Servant em- ployed to sell a Horse, but expressly forbid to warrant him sound. Is it contended that the buyer, induced by the Warranty to give ten times the price which he Vv'ould 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 advantage of that false Repre- sentation, for the purpose of obtaining a contract bene- ficial to himself, which he could not have obtained with- out it (ii)." The general Rule then, in selling a Horse by a Servant Rule as to a or Agent appears to be the following : — That the master ?"1^"V^^"^' or owner is bound by a AVarranty given by his Servant ter. or Agent at the time of sale, without his consent, and even against his express direction. The only exception is the case of the Agent of a person, who is neither a Horse- dealer nor Stable-keeper, warranting a Horse in spite of the express 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 contract. Although a AVarranty given by a person entrusted to Warranty by sell prima facie binds the Principal, the Warranty of a ?• P^irson en- person entrusted merely to deliver the thing sold is not deliver. prima facie binding on the Principal, but an express authority must be shown : and therefore where a Horse had been sold by A. to B., and A.'s Servant, on deliver- ing the Horse to B., made certain statements, and signed a receipt for the price of the Horse, containing a War- ranty, it was held, in an action on the Warranty, that A. was not bound by the statement or receipt of the (t) Per Ashurst, J., Fenn Dow. 45. v. Harrison, 3 T.R. 761 ; and {%i) Cornfoot v. Fowke, 6 M. Scotland (Bank) v. Watson, 1 & W. 381. F 5 106 CONTRACTS CONCERNING HORSES, &C. Agent em- ployed to take a War- ranty. Action against a pretended Agent. Sei*vaiit, as no express authority to give the Warranty was sho"wn ( y). And where, on the purchase of a Horse, the vendor had given a Warranty of Soundness ^ewer«/Zy, and the Servant who was sent with the receipt to the Agent of the other party inserted at his request, but wdthout a special or general authority from his master, " Warranted sound to the Regiment," and the Horse was sound when delivered in London, but was in a violent Fever, of which he soon afterwards died, when he reached Tewksbury, where the Regiment was quartered ; it was held, that the master was not bound by this alteration of the Warranty, notwithstanding the money afterwards came to his hands (s). If an Agent is employed to receive a Horse, pay for it, and take a Warranty, he has no authority to receive it without a Warranty (a). An action in substance for the price of a Horse may be brought by the seller against a pretended Agent, as in the following case. It was stated in the declaration, that in consideration that the plaintiff would send a Pony to the defendant he would sell and deliver it to A. ; the defend- ant undertook that he was authorized by A. to purchase it on his behalf; that the plaintiff sent the Pony to the defendant, and was willing to sell it to A., but that the defendant had no authority from A. to purchase it (b). Not covered by a War- ranty. PATENT DEFECTS. A general Warranty does not cover Patent defects, being such as are obvious to the buyer. As if a Horse warranted perfect be minus an Eye or a Tail ()." (s) Chit. jun. Contr. 4th ed. 588. {t) Per Parke, B., Taylor V. Ashton, 11 M. & W. 4i3. (m) Springwell v. Allen, Aleyn, 91, cited in Williamson V. Allison, 2 East, 448. (.r) See per Piatt, B., Mur- ray V. Mann, 2 Exch. 539. (?/) Barley v. Walford, 9 Q. B. 197. {z) Longmead v. Holliday, 6 Exch. 766 ; and see Levy v. Langridge, 4 M. & W. 337. (a) Per Buller, J., Pasley V. Freeman, 3 T. R. 56 ; and Mummery v. Paul, 1 C. B. 322. (b) Wafson v. Earl of Char l- mont, 12 Q. B. 862. FRAUDULENT CONTRACTS. 121 In considering the question of Fraud, the courts have Due caution endeavoured on the one hand to repress dishonesty, and ™^^^ always on the other they have required that before relieving a party from a contract on the ground of Fraud, it should be made to appear that in entering into such contract he exercised a due degree of caution, because, Vigilantibus non dormientibus succurrunt jura (c). If a purchaser, choosing to judge for himself, does not Caveat avail himself of the knowledge or means of knowledge ^^P^^r. open to him or to his Agent, he cannot be allow^ed to say he w^as deceived by the seller's representations, the Rule being Caveat emptor, and the knowledge of his Agent being as binding on him as his own knowledge {d). There are cases of two sorts, in which, though a man A visible de- is deceived, he can maintain no action. The first class of nude^afser- cases is, where the affirmation is that the thing sold has not tion. a Defect which is a Visible one ; there the imposition and the fraudulent intent are admitted, but there is no tort. The second kind of cases is, where the affirmation is (what is called in some of the books) a Nude Assertion; such as the party deceived may exercise his own judg- ment upon. For where it is a mere matter of opinion, he ought to make inquiries into the truth of the asser- tion, and it becomes his own fault from laches if he is deceived (e). Assertions of this sort are what is called " Dealing Dealing Talk," such as is used more or less by Shopkeepers and T^sl^- Dealers of every description. For instance, a Horse- dealer tells his customer that a Horse worth £40 is " worth a hundred guineas," or that a bad, clumsy goer, has " fine action," or is a '^ clever little Horse." And a person who allows himself to be imposed upon by such assertions has no remedy against the vendor. Thus it appeared in the following case that J. S., who had a term for years, affirmed to J. D. that the term was worth £150 to be sold, upon which J. D. gave £150, and after- Avards could not get more than £100 for it, and then brought his action. It was alleged that this matter did not prove any Fraud, for it was only a naked assertion (c) See Chit. Jan., Contr.4th (e) 1 Rol. Abr. 101 ; Yelv. ed.5SS; Shrewsbury W.Blount, 20; 1 Sid. 146; Cro. Jac. 2 Scott, N. R. 588. 386 ; Bailey v. Merrell, 3 {d) Attwood V. Small, 6 C. Bulst. 95 ; and per Grose, J., & F. 232. Pasley v. Freeman, 3 T. R. 54. G 122 CONTRACTS CONCERNING HORSES, &C. A Foolish Bargain. Representa- tion known to be untrue. Made before a sale by Auction. ^fade by a bidder at an Auction. Representa- tion not known to be true. tliat the term was worth so much, and it was the plain- tiff's folly to give credit to such assertion. But if the defendant had wan^anted the term to be of such a value to be sold, and upon that the plaintiff had bought it, it would then have been otherwise {f). If the Folly of a contract be extremely gross, the circumstance will tend, if there be other facts in corro- boration, to establish a case for relief on the ground of Fraud; but mere folly and weakness, or want of judg- ment, will not defeat a conti-act even in Equity (g). But a vendor is unquestionably liable to an action of Deceit, \i \ie fraudulently vimve'^ve.sevLt^ the quality of the thing sold to be other than it is in some particulars, which the buyer had not equal means with himself of knowing {h). Certain misrepresentations about a Horse on Sale at a Repository were made by the defendant to the plaintiff, about four o'clock in the afternoon. On the morning of- the next day the defendant accompanied the plaintiff to the Auction yard, and pointed out the Horse, saying "■ That is the Horse." On his being put up to auction the plain- tiff bought him, and he turned out to be unserviceable. It was held that the plaintiff Avas entitled to recover da- mages from the defendant, as the Jury were satisfied that the defendant knew of the falseness of the representations, and that the fact of the sale having been made by an Auctioneer made no difference (z). Where the purchaser and his friend were the only bid- ders at an Auction, the rest of the company being deterred from bidding by the purchaser's stating to them that he had a claim against, and had been ill used by, the late owner of the article, it was held that such purchaser did not acquire any property against the vendor under such sale {k). It signifies nothing whether a man represents a tiling to be different from what he knoics it to be, or whether he makes a representation which he does not know at the (/) Harvey v. Young, Yelv. 20 ; cited per Grose, J., Pas- ley v. Freeman, 3 T. R. 55. (g) Milnes v. Cowley, 8 Price, 620 ; Prehhle v. Boy- hurst, 1 Swanst. 329 ; JFlllan v. Carter, before Martin, B., Lancaster Spr. Ass. 1852. (h) Per Lord Ellenborough, C. J., Vernon v. Keys, 12 East, 637. (i) Bar dell v. Spinhs, 2 C. & K. 646. (A-) Fuller v. Abrahams, 3 B. & Bing. 116. FRAUDULENT CONTRACTS. 123 time to be true or false, if in point of fact it turns out to hefalseil)] because there may undoubtedly be ?i fraudu- lent Representation if made dishonestly, of that which the party does not know to be untrue, if he does not knoio it to be true, or at least has not good grounds for believing it to he_true{m). But to render a person liable to an action for false and A well fraudulent representations, it is not enough to show that beu^f '^^'^ the representations are false. If he acted upon a fan* and reasonably well grounded belief that they were true, he is not responsible for them however unfounded they may turn out to be {n). It has been held that even the mere knowledge that the Delusion other party is labouring under a Delusion, which mate- contract, rially affects the Contract, when the vendor suffers him to be operated upon by that Delusion, makes the contract void (o). The seller, however, is undoubtedly liable, where he Representa- makes such Misrepresentation as induces the buyer to ygnt hi?"^^ forbear making those inquiries, which for his own seen- quines. rity and advantage he would otherwise have made {p). Where a Representation is made and a Fraud practised Representa- tlu'ough the medium of a third party, and damage has ^^tv^d^''"^^ resulted, the vendor is liable to an action on the Case ; ^ ^^^ ^' and this was so held by the Court of Common Pleas upon the following facts : — It appeared that the defendant, who was about to sell a Public-house, falsely represented to B., who had agi-eed to purchase it, that the Receipts were worth £180 a month ; and B., to the knowledge of the defendant, had communicated the Representation to the plaintiff, who in consequence became the purchaser of it, and afterwards found that the receipts had not been worth so much {q). Where a third party makes a fraudulent JRepresenta- Representa- tion with regard to an article about to be sold, he is liable ^j''" ^^ ^ to the purchaser in an action on the Case. Thus where ^^ ^^^ ^' the plaintiff was about purchasing a Horse from a party (0 Per Lord Mansfield, (o) Hill v. Gray, 1 Stark. C. J., Schneider v. Heath, 3 N. P. C. 434. Camp, 508. (^) Per Lord Ellenborough, (?«) Per Parke, B., Taylor C. J., Vernonv. Keys, 12 East, V. Jshton, 11 M. & W. 413. 367- {71) Shrewsbury v. Blount, 2 (q) Pilmore v. Hood, 5 Scott, N. R. 588. Bing. N. C. 97. g2 124 CONTRACTS CONCERNING HORSES, &C. A bona fide Representa- tion. Representa- tion as to Credit. Horse sold " with all his Faults." who warranted him sound, and who, for the corroboration of his statement, refen-ed him to the defendant, who war- ranted the Horse sound in the wind, Mr. Baron Alderson said, " The merits are, whether or not the defendant made a Fraudulent Representation. It is proved that he did. He comes here to defend himself from the charge of having made a Fraudulent Representation on the occa- sion of the sale.'* The Jury found a verdict for the plain- tiff (5). An action however does not lie for a false JRepresenta- t'lon, whereby a party being induced to purchase the subject-matter of the Representation even from a third party, has sustained damage, if the Hepresentation appear to have been made bond fide under a reasonable and well- grounded belief that the same was true, as the Rule Caveat emptor applies (t). A person should be careful how he gives credit to any statement made by a third party as to the character and ability of the person with whom he is about to deal; because under 9 Geo. 4, c. 14, s. 6, " no action lies to charge a person upon ©r by reason of any Representation or Assurance made or given relating to the character, conduct, ability, trade, or dealings of any other person, to the intent that such other person may obtain credit, money or goods [there]upon, unless such JRep?-ese7itation, &c. be made in writing, signed by the party to be charged therewith." Where a Horse is sold '' with all his Faults/^ just as the purchaser sees him, the seller is not bound to disclose any latent defects, but he must not use any Fraud or Artifice to conceal them ; and in effecting such a sale, it is best for the seller to say nothing, and let the purchaser inspect the Horse and so judge for himself. At one time Lord Kenyon held that a seller was bound to disclose to the buyer all latent defects known to him, and that buj^ing ^^ with all faidts" without a Warranty must be understood to relate only to those faults which the buyer could have discovered, or with which the seller was unacquainted (u). (s) Mash V. Densham, 1 M. & Rob. 442. (t) Shrewsbury y. Blount, 2 M. & G. 475 ; S. a 2 Scott, N. R. 588 ; Haycraftx. Creasy, 2 East, 92 ; Ormrod v. Huth, 14 M. & W. 664. (?/) MeUish v.Motteux, Peak. Cas. 115. FRAUDULENT CONTRACTS. 125 However, Lord Ellenborough overruled this decision, Vendor held and said, " I cannot subscribe to the doctrine of that "°^ ^^^^^ for case, although I feel the greatest respect for the Judge fects. by whom it was decided. W here an article is sold ' with all faults,^ I think it is quite immaterial how many be- longed to it within the knowledge of the seller, unless he used some artifice to disguise them, and to prevent their being discovered by the purchaser. The very object of introducing such stipulations is to put the purchaser on his guard, and to throw upon him the burden of ex- amining all faults, both secret and apparent. I may be possessed of a Horse I know to have many faults, and I wish to get rid of him for whatever sum he will fetch. I desire ni}'- servant to dispose of him, and instead of giving a AYarranty of soundness, to sell him ' ivith all Faults.' Having thus laboriouslj^ freed myself from responsibility, am I to be liable, if it be afterwards dis- covered that the Horse was unsound ? Why did not the purchaser examine him in the Market, when exposed to sale? By acceding to buy the Horse 'with all faults,' he takes upon himself the risk of latent or secret faults, and calculates accordingly the price which he gives. It would be most inconvenient and unjust, if men could not, by using the strongest terms which language affords, obviate disputes concerning the quality of the goods which they sell. In a contract such as this, I think there is no fraud, unless the seller by positive means renders ' it impossible for the purchaser to detect latent faults {x): " The meaning of a Horse being sold ^' with all his Defects frau- faults " is, that the purchaser shall make use of his eyes duiemiy con- and understanding to discover what Faults there are j ^^^ ^ • and the seller is not answerable for them if he does not make use of any Fraud or Practice to conceal them ( ?/). But where, on the sale of a House in South Audley Street, the seller being conscious of a Defect in the main wall, plastered it up and papered it over ; it was held that as the seller had expressly concealed it, the pur- chaser might recover {z). It would appear from this case, that where a Horse has {x) Baglehole v. Walters, 3 {z) Case cited by Gibbs, Camp. 1-56. J., in Pickering v. Dowson, 4 {y) Pickering v. Dowson, 4 Taunt. 785. Taunt. 784. 126 CONTRACTS CONCERNING HORSES, &C. Plugging, &c. Contract made void- able by fraud. Where fraud is practised upon the buyer. Where he continues to deal with the article. Where fraud is prac- tised upon the seller. Resale by the buyer. been sold " with all hisfaultSy' and artificial means have been used to conceal some Defect, the vendor would be liable to the purchaser for such conduct. For instance, the practice of Pluggijig, Sfc, or perhaps the artificially filling up a Sandcrack(«) or Thrush (Z>) (such devices being, without doubt, used to deceive the purchaser) would each be a sufiicient ground for an action on the Case ; because a man may act a Lie or Fraudulent Bepresentatio?i without speaking a word, and the injury under such circumstances would be Damage as the result of a Fraudulent Representation coupled with dealing. Thus where a Ship was sold "with all her Faults/' but means had been taken Fraudidently to conceal some Defects in her bottom, the vendor was held liable (c). Fraud does not make a contract void, but only void- able, at the election of the party defrauded, who has the option of acquiescing in it, or of avoiding \t(d). If a party be induced to purchase an ai'ticle by frau- dulent representations of the seller respecting it, he may treat it as a good contract, or the moment he chooses to declare it void, he may recover the price from the seller (e). But if after discovering the fraud he continue to deal with the article as his own, he cannot recover back the money from the seller (y). And the right to repudiate the contract is not afterwards revived by the discovery of another incident in the Fraud (/*). A sale of goods effected by the Fraud of the buyer is not absolutely void, but the seller may elect to treat it as a valid transaction {g), or has a right to treat the contract as a nullity, and recover the value of the goods in an action of Trover (Ji). If he does not treat the sale as void before the buyer has resold the goods to an innocent vendee, the property will pass to the vendee {g). (a) Sandcrack, ante. (b) Thrush, ante. (c) Schneider v. Heath, 3 Camp. 508 ; and Jones v. Bright, 3 M. & P. 175. (d) Murray v. Ma^in, 2 Exch. 541 ; Story on Sales, 126. (e) Murray v. Mann, 2 Exch. 541. (/) Campbell Y. Fleming, \ A. & E. 40. (g) IVliite V. Garden, 20 L. J. 166. (C. P.) (h) Ferguson v. Ca7rington, 9 B. & C. 59 ; S. C. 3 C. & P. 457 ; Load v. Green, 15 M.& W. 216, 221. FRAUDULENT CONTRACTS. 127 All contracts of purchase made with the fraudulent Contract intent to cheat the seller, and dispose of the goods at a J^Sieat ml swindling price, to raise money, are held void {k). seller. It would appear that where the buyer purchases goods Preconceived with the preconceived design of not paying for them, such design of not sale does not pass the property therein {I). Thus where goods? some Sheep had been bought under such circumstances, Cliief Justice Abbott held that if the buyer contracted for, and obtained possession of the Sheep in question, with ?i preconceived design of not paying for them, that would be such a fraud as would vitiate the sale and prevent the property from passing to him {m). Whether the buyer has obtained possession of the goods Question for with such a preconceived design, is a question for the ^^^ ^^'^'• Jury(w). The resale of the goods at reduced prices immediately Resale at a after the buyer has obtained possession of them, is evi- '■^^^^^'i dence that such prior transaction is fraudulent (n). A document which purports to be an agreement, and Unstamped is vahd upon the face of it, but which is tendered in evi- admissible to dence to show the transaction with which it is connected prove Fraud, to be a Fraud, is admissible in evidence, although un- stamped [o). If a buyer, under terms to pay for goods on delivery. Payment by obtains possession of them by giving a Cheque, which is ^^hich^is^dis- afterwards dishonoured, he gains no property in the goods, honoured. if at the time of giving the Clieque, he had no reasonable ground to expect that it would be paid (jo). Where a party, when he enters into a contract, is in Drunkenness such a state of drunkenness as not to know what he is ^l^^^^t^^^^' doing, and particularly when it appears that this was known to the other party, he cannot be compelled to perform the contract {q). (Jc) Gibson v. Carruthers, 8 9 B. & C. 59 ; S. C. 3 C. & P. M. & W. 346. 457. (Z) See Irving v. Motley, 7 (o) Holmes v. Sixsmith, 7 Bing. 551 ; Load v. Green, 15 Exch. 802 ; Reg. v. Gompertz, M. & W. 221 ; Ferguson v. 9 Q. B. 824. Carrington, 9 B. & C. 59 ; {p) Hawse v. Crowe ,~R. & see Chit. jun. Contr. 4th ed. M. 414 ; Earl of Bristol v. 356. Wilsmore, 1 B. & C. 521. (/h) Earl of Bristol y. Wils- (q) Gore v. Gibson, 13 M. more, 1 B. & C. 521. & W. 626. (n) Ferguson v. Carrington, 128 CONTRACTS CONCERNING HORSES, &C. Goods kept If, liowever, a man buys a Horse when so drunk as not by a party ^q k^ow what he is domg, but keeps it after he is sober, he en so er. ^^^^^^ gg^ ^p |^g drunkenness as an answer to an action for the price (s). (s) See Chit. jun. Contr. 4th ed. 356; Gore v. Gibson, 13 M. & W. 626. ( 129 ) CHAPTER VIII. BREACH OF WARRANTY. Breach of Warranty. Buyer neither bound to tender the Horse nor give Notice 129 Seller not bound to take back the Horse 130 Unless the Contract was executory id. Street v. Blay id. Judgment of the Court of King's Bench id. Lord Eldon's Opinion discussed 131 Evidence in Mitigation of Damages 132 Unfitness for a particu- lar purpose id. An intermediate Profit 133 Acts of Ownership in- consistent with Trial id. Confirmed by a later Case id. Goods are returnable where there is Fraud 134 But not for non-correspon- dence with Sample* . . . id. Agreement that a Horse is to be returned if Un- sound 135 Or unsuitable id. Or unfit for a particular purpose id. Verbal offer after Sale to take back the Horse . . 136 Where Goods should be returned immediately . . id. Or the Contract becomes complete id. Where Buyer should ten- der the Horse id. Sale after Tender id. Notice instead of Tender . id. Length of Time before No- tice 137 Seller should have the Horse examined id. Breach of Warranty no Defence to an Action on a Bill of Exchange ... 138 Unless there be a total failure of Consideration id. BREACH OF WARRANTY. Where a Horse has been sold warranted Sound, which Buyer It can be clearly proved was Unsound at the time of Sale "^^^^^r the seller is liable to an action on the Warranty, without Se??he*°*'°" either the Horse being returned or Notice given of the Horse nor Unsoundness. And in a case where there was a breach °^^^ Notice. of Warrant}-, Lord Loughborough said, " No length of time elapsed after the sale will alter the nature of a con- G 5 130 Seller not bound to take back the Horse. Unless the contract was executory. Street v. Blay. Judgment of the Court of King's Bench. CONTRACTS CONCERNING HORSES, &C. tract originally false. It is not necessary that the Horse should be returned to the seller or that Notice should be given (a)." AVhere a Horse warranted Sound turns out Unsound, the seller is not bound to take it back again ; nor can the buyer, by reason of the Unsoundness, resist an action for the price on the ground of breach of Warranty, except in case of fraud or express agi'eement authorizing the return, or on a mutual rescision of the contract; but he may give the breach of Warranty in evidence in reduc- tion of damages. And it would appear that where a contract is execu- tm^y only, as where a Horse is ordered of a party, and he contracts to supply one fit for a certain purpose, tlie buyer may rescind the contract after he has received the Horse, if it does not answer that purpose, provided he has not kept it longer than was necessary for trial, or exercised the dominion of an owner over it as by sell- ing it. ^ ^ This was decided in Street v. Blay (b), and as it is a very important and leading case, it will be given together with a considerable portion of the judgment delivered by Lord Tenterden. The facts of the case were these. The plaintiff, on the 2nd of February, sold a Horse to the defendant for 43/. mth a Warranty of Soundness. The defendant took the Horse, and on the same day sold it to one Bailey for 45/. Bailey, on the following day, parted with it in exchange to one Osborne ; and Osborne, in two or three days afterwards, sold it to the defendant for 30/. No WaiTanty appeared to have been given on any of the three last sales ; the Horse was, in fact. Un- sound at the time of the first sale, and on the 9th of Feb- ruary the defendant sent the Horse back to the plaintiff's premises, requu-ing the plaintiff to receive him again as he was then lame ; but the plaintiff refused to accept him. The question for consideration was, whether the defendant, under these circumstances, had a nght to re- turn the Horse, and thereby exonerate himself fi'om the payment of the whole price ? After taking time to consider. Lord Tenterden, in deli- vering the judgment of the Court, said, "It is not neces- (rt) Fielder v. Starlde, 1 H. Bla. 17 ; and see Poulton v. Lattimore, 9 B. & C. 265. (&) Street v. Blay, 2 B. & Adol. 456 ; and see Dawson v. Collis, 10 C. B. 523. BREACH OF WARRANTY. 131 sary to decide whether in any case the purchaser of a specific chattel, who, having had an opportunity of exercising his judgment upon it, has bought it with a WaiTanty that it is of any particular quality or descrip- tion, and actually accepted and received it into his pos- session, can afterwards, upon discovering that the War- ranty has not been complied with, of his own will only, without the concurrence of the other contracting party, return the chattel to the vendor and exonerate himself from the payment of the price, on the ground that he has never received that article which he stipulated to pur- chase." " There is indeed authority for that position. Lord Lord Eldon's Eldon, in the case of Curtis v. Hamiay (c), is reported p^g"^^" ^^^' to have said, that he took it to be clear law, that if a person purchases a Horse which is M^arranted Sound, 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 he would have a right to recover the difference betv/een 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 as he was in when sold, and not by any means diminished in value. And Lord Eldon proceeds to say, that if it were in a worse state than it Avould have been in, if returned immediatelj^ after the discovery, the purchaser would have no defence to an action for the price of the article.'^ " It is to be implied (says Lord Tenterden) that he would have a defence in case it were returned in the same state, and in a reasonable time after the discovery. This dictum has been adopted in Mr. Starkie's excellent work on the Law of Evidence (c?), and it is there said that a vendee may in such a case rescind the contract altogether by returning the article, and refuse to pay the price or recover it back if paid.''^ "It is however extremely difficult, indeed impossible, to reconcile this doctrine with those cases in which it has been held that where the property in the specific chattel has passed to the vendee, and the price has been paid, he (c) Curtis v. Hannmj, 3 {d) Starkie on Evidence, Esp. 83. part iv. p. 645. 132 CONTRACTS CONCERNING HORSES, &C. has no riglit, upon the breach of the AVarranty, to return the article and revest the property in the vendor, and recover the price as money paid on a consideration which has failed, but must sue upon the Warranty, unless there has been a condition in the contract authorizing the re- turn, or the vendor has received back the chattel, and has thereby consented to rescind the contract, or has been guilty of a fraud which destroys the contract altogether. In Weston v. Doicnes (e), Towers v. Barrett (f), Payne V. Whale (g), Poiver v. Wells (h), and Emanuel v. Dane(i), the same doctrine Avas applied to an Exchange with a Warranty as to a Sale, and the vendee held not to be entitled to sue in Trover for the chattel delivered by way of barter for another received. If these cases are rightly decided, and we think they are, and they cer- tainly have been always acted upon, it is clear that the purchaser cannot by his own act alone, unless in the ex- cepted cases above mentioned, revest the property in the seller, and recover the price when paid, on the ground of the total failure of consideration ; and it seems to follow that he cannot by the same means protect himself from the payment of the price on the same ground." Evidence in " On the Other hand the cases have established, that ™^!f^l!f" of the breach of the Warranty may be given in evidence in mitigation of damages, on the principle, as it should seem, of avoiding circuity of action (k) ; and there is no hardship in such a defence being allowed, as the plain- tiff ought to be prepared to prove a compliance with his Warranty, which is part of the consideration for the specific price agreed by the defendant to be paid." "It is to be observed, that although the vendee of a specific chattel, delivered with a Warrant}^, may not have a right to return it, the same reason does not apply to cases of executory contracts, where an article, for in- stance, is ordered from a manufacturer, who contracts that it shall be of a certain quality, or fit for a certain pui'pose, and the article sent as such is never completely accepted by the party ordering it. In this and similar damages. Unfitness for a particular purpose. (e) Westonw. Downes, Doug. 23. (/) Towers v. Barrett, 1 T. R. 133. (g) Payne v. Whale, 7 East, 274. (h) Power v. Wells, Doug. 24, n. (i) Emanuel v. Dane, 3 Camp. 299. {k) Cormack v. Gillis, cited 7 East, 480 ; King v. Boston, 7 East, 481, n ; and see Daw- son v. Collis, 10 C. B. 532. BREACH OF WARRANTY. 133 cases the latter may return it as soon as be discovers tlie defect, provided he has done nothing more in the mean- time than was necessary to give it a fair trial (/)." '' The observations above stated are intended to apply to the purchase of a certain specific chattel, accepted and received by the vendee, and the property in Avhich is completely and enthely vested in him." " But Avhatever may be the right of the purchaser to Aninterme- return such a warranted article in an ordinary case, there ^^^^^ profit, is no authority to show that he may return it where the purchaser has done more than was consistent with the purpose of trial ; where he has exercised the dominion of an owner over it, by selling and parting with the pro- perty to another, and where he has derived a pecuniary benefit from it. These circumstances concur in the pre- sent case ; and even supposing it might have been com- petent for the defendant to return this Horse, after having accepted it and taken it into liis possession, if he had never parted with it to another, it appears to us that he cannot do so after the re-sale at a profit." " These are acts of ownership wholly inconsistent with -A^cts of the purpose of trial, and w^hich are conclusive against consistent^"' the defendant that the particular chattel was his ow^n ; with trial, and it may be added that the parties cannot be placed in the same situation by the return of it as if the contract had not been made, for the defendant has derived an in- termediate benefit in consequence of the bargain, w'hich he would still retain. But he is entitled to reduce the Damages, as he has a right of action against the plaintiff for the breach of Warranty {m).'' In another case, wdiere the question of return was con- Confirmed by sidered, the law laid down by the Court of Queen's ^ ^^^^^ ^^^^' Bench w' as confirmed by the Court of Exchequer. And Mr. Baron Bayley said, " One party cannot rescind the contract unless the other party agrees to it. The contract of Warranty was open, and entitled the plaintiff" to reco- ver damages for the breach of it, but did not entitle him to return the Horse, and rescind the contract. In Street V. Blay (m), the law" on this subject was fully considered by the Court of King's Bench, and it was there laid down that a purchaser has no right to return the article, (0 Okell V. Smith, 1 Stark. (ra) Street v. Blaij, 2 B. & N. P. C. lOr. Adol. 456. 134 Goods are returnable ■where there is fraud. But not for non-cor- respondence ■with sample. CONTRACTS CONCERNING HORSES, &C. unless there has been a condition in the original contract authorizing the return, or the vendor has subsequently- consented to rescind the contract, or unless the case turn out to be one of fraud. According to Power v. Welles {p), if the contract is still open, y^ou cannot maintain an action for Money had and received ; I take the rule to be, that if the contract remains open, so as to give the party a right to recover damages for a breach of Warranty, he cannot maintain an action oi indebitatus Assumpsit on the ground of the failure of consideration.^' And Lord Lyndhurst said, " There was a proposition in this case to rescind the contract, which the defendant was at first willing to accede to, but the agreement to rescind was never completed, therefore the contract re- mained open. One party alone could not, by his own act, rescind the contract. The case of Street v. Blay (q) seems to have been very much considered. That case shows that you cannot treat a contract as rescinded on the ground of the breach of Warrant}^, except there was an original agreement that the party should be at liberty to rescind in such case, or unless both parties have con- sented to rescind it. According to that decision, which is the most recent, your remedy was an action for da- mages (r)." In an unconditional Warranty, the only ground on which goods are returnable is that of Fraud. And Mr. Baron Parke, referring to the case of Street v. Blay (q), said, " When a Horse is warranted sound, and turns out otherwise, the purchaser has no right to return him, un- less the Warranty was fraudulent ; his only remedy is an action on the Warranty ; this has been lately settled, but the general impression formerly among the profession, and now amongst aU others, is, that the purchaser is to return the Horse (s)." Upon the sale of specific goods, with a Warranty that they are equal to sample, the vendee cannot refuse to re- ceive them on the ground that they do not correspond with the sample, unless there be an express condition to that effect ; but he must trust to a cross action, or rely (p) Power X. Welles, CowTp. 818. (q) Street v. Blay, 2 B. & Adol. 456. (r) Gompertz v. Dentoii, 1 Cr. & M. 207. (s) HilUardv. Orbell,Exch. Sittings, Jan. 11, 1834. BREACH OF WARRANTY. 135 on the non-coiTespondence with sample as a ground for reduction of damages (t). But if on the sale of a Horse there be an express AYar- Agreement ranty by the seller that the Horse is sound, free from !^^^ ^ h°"® vice, &c., yet if it be accompanied with an undertaking turned if un- on the part of the seller to take back the Horse and repay sound. the purchase money, and on trial he shall be found to have any of the defects covered by the "Warranty, the buyer must return him as soon as he discovers any of those defects, unless he has been induced to prolong the trial by any subsequent misrepresentation of the seller, because in such case a trial means a reasonable trial (m). Where a Horse is bought on condition that he is to be Orun- returned if he does not suit, as the contract for sale is not ^"' ^ ^' absolute, the Horse may be returned, and an action brought for the price, if paid, as Money had and re- ceived to the use of the plaintiff (;r). But the purchaser must not keep him longer than is necessary for trial, nor exercise the dominion of an owner over him, as by selling him(2/). Such an action was brought in the following case, to recover ten guineas which the plaintiff had paid to the defendant for a one Horse Chaise and Harness, on condition that it was to be returned in case the plaintiff's wife should not approve of it, payiug 3s. Qd. per diem for the hire of it. This contract was made by the defend- ant's servant, but his master did not object to it at the time. The plaintiff's wife not approving of the Chaise, it was sent back at the expiration of three days, and left on the defendant's premises, without any consent on his part to receive it ; the hire of 35. Q>d. per diem was ten- dered at the same time, which the defendant refused, as well as to return the money. A verdict was found for the plaintiff. And a rule to show cause why a nonsuit should not be entered, on the ground that this action for Money had and received would not lie, was dis- charged (z). "\Aliere a Horse is bought, warranted fit for a parti- Or unfit for cular purpose, and he proves unfit for that purpose, it p^^p^^g. ^^ (0 Bawson v. ColUs, 10 C. R. 133. B. 523. {ij) Street v. Blay, 2 B. & (m) Adam v. Richards, 2 Adol. 456. H. Bla. 573. (2) Towers v. Barrett, 1 T. (j) Towers v. Barrett, 1 T. R. 138. 136 CONTRACTS CONCERNING HORSES, &C. Verbal offer after sale to take back the Horse. Where goods should be re- turned im- mediatel}'. Or the con- tract be- comes com- plete. Where buyer should tender the Horse. Sale after tender. Notice in- stead of ten- der. has been held, that the purchaser may return him and bring an action for the price, if paid (a). But where, after a AVaiTanty of a Horse as sound, the vendor, in a subsequent conversation, said, that if the Horse were Unsound (which he denied) he would take it again and return the money, it was held that this was no abandonment of the original contract, which still remained open ; and that though the Horse be Unsound, the vendee ought to sue upon the Warranty, and could not maintain an action for Money had and received, to recover back the price after a tender of the Horse {b). A buyer who rejects goods sent to him as not being equal to sample, is bound to return them immediately, if it can be done without injury to the goods. He has no right to retain them in security of his claim of damages for non-performance of the contract (c). If goods delivered on " sale or return" be not returned within a reasonable time, or the return of them be ren- dered impossible by the act of the Buyer, the contract of sale becomes complete, and an action for Goods sold and delivered may be maintained by the Seller (6?). Where a Breach of Warranty has taken place it is prudent for the Buyer, m an ordinary case, to tender the Horse back to the Seller immediately on discovering such Breach (e) ; and so entitle himself to be repaid the expenses he has been put to in keeping him {f) ; and if the seller receive him back there will be a mutual recision of the original contract (^). But where the Seller refuses to take back the Horse, he should be sold as soon as possible for the best price that can be procured {h). And, perhaps, the best course to be pursued under such circumstances is to sell him by public auction. If the Buyer does not "v\ash to tender the Horse, he {a) Chanter v. Hopkins, 4 M. & W. 400 ; but see Daw- son V. Collis, 10 C. B. 523. (6) Payne V. Whale, 7 ^ast, 274. (c) Padgett V. Macnair, 15 Court of Sess. 76, (Sco.); S. C. 2 S. M. & P. 41 ; S. C. 4M. Dig. 187. {d) Mossy. Sweet, 16L.T. 341 ; S. a 20 L. J. 167 (Q. B.); S. a 16 Q. B. 493. (e) Selwyn's N. P. 8th ed., vol. i. p. 657, tit. Deceit I. 2, cited in Chesterman v. Lamb, 2 A. & E. 129. (/) Chesterman v. Lamb, 2 A. & E. 129. {g) Weston V. Downes, Doug. 24. (h) Caswell v. Coare, 1 Taunt. 566. time before Notice. BREACH OF WARRANTY. 137 should at any rate give Notice of the Breach of War- ranty, because the not giving Notice will be strong pre- sumption against the Buyer that the Horse, at the time of sale, had not the defect complained of, and will make the proof on his part much more difficult {i). And unless the Breach in such case is clearly estabhshed, the Jury will naturally suppose that the Horse corresponded with the Warranty (A). The longer the time before Notice, or bringing an Length of action after discovering the Breach of Warranty, the greater will be the difficulty in making out a good case to a Jury {I). But where the Breach of Warranty can be clearly proved, the length of time before Notice does not appear material. For the Court of King's Bench, in a case where an Unsound Horse was sold with a Warranty of Soundness, decided that the Buyer might maintain an action on the AVarranty, although shortly after the sale he had discovered the Unsoundness, and without giving Notice of that fact to the Seller, had kept and used the Horse for nine months as his own, during which period he had given him physic, and used other means to cure him ; he had also cut the Horse's tail. The case had been tried at the Hereford Assizes before Mr. Justice Parke, who directed a nonsuit. However, in the ensuing term a rule was obtained to set that nonsuit aside, and for new trial, the cases of Fielder v. Starkie{l) and Caswell V. Coare {m) being referred to. In showing cause, it was contended that Fielder v. Starkie{l) was overruled, or at least qualified by subsequent cases ; but Lord Denman, with the assent of Justices Littledale, Pat- teson, and Coleridge, said, " We think that Fielder and Starkie is not overruled. The rule must be absolute (n)" The Seller, on receiving Notice of a Breach of War- Seller should ranty, should have the Horse examined by some skilful ^F'^ ^^^ person, and so ascertain the exact state of the case. If amined. he find that the Warranty is broken, or that there is doubt, he had better either take back the Horse, or come to what terms he can with the Buyer, as Horse causes are decided in a great measure by the strength of Veteri- (i) Fielder v. Starkie, 1 (j«) Caswell v. Coare, 1 H. Bla. 17. Taunt 5QQ. (k) Poulton V. Lattimore, 9 («) Pateshall v. Tranter, 3 B. & C. 265. A. Sc E. 103 ; S. C. 4 Nev. & (/) Fielder v. Starkie, 1 M. 649. H. Bla. 17. 138 CONTRACTS CONCERNING HORSES, &C. Breach of warranty no defence to action on Bill of Ex- change. Unless there be a total failure of considera- *tion. nary testimony. But if he find that there is really no Breach of Warranty, the evidence of the party who has examined the Horse, will place him in a favourable posi- tion in case an action should be brought. It seems that if a BOl of Exchange or Promissory Note has been given for goods, which were warranted to be of a particular quality or description, the buyer has no defence, evenpi^o tanto, to an action brought upon the Bill or Note by the seller, merely upon the ground that the goods are of an inferior quality or description (j9). But he may defend on the Bill or Note in toto, if an action be brought by the seller, where there has been a total failure of consideration, provided the buyer has re- pudiated the contract ; the difference being between an action for the price of goods, and an action upon the security given for them {q). (p) See Chit. jun. Contr. 4th ed, 402, and the cases there cited ; Moggridge v. Jones, 3 Camp. 38 ; Knox v. Whalley, 1 Esp. 159. {q) See Chit jun. Contr. 4th ed. 402, and the cases there cited. ( 139 ) CHAPTER IX. PLEADING, EVIDENCE, AND DAMAGES. Pleadings ix general. Their Language and Form 141 .Fictitious and needless Averments not to be made id. Judgment upon Demurrer to he given according to the very right of the Cause 142 Objections by way of Spe- cial Demurrer taken away id. Pleadings framed to em- barrass may be struck out or amended id. Pleadings to be dated and entered as of the time of Pleading, unless order to the contrary id. Performance of Conditions Precedent may be aver- red generally id. Power of Amendment . .. 143 Misjoinder and Nonjoin- der of Plaintiffs id. Misjoinder and Nonjoin-. der of Defendants .... id. Amendment of Defects and Errors in any Proceed- ings *.,... id. Pleading and Evidence FOR the Plaintiff. Executory and executed Contracts 144 Goods bargained and sold for Payment of the Price id. Assumpsit/or not accept- ing 144 Resale of the Goods .... id. Assumpsit/or not deliver- ing 145 Goods sold and delivered for Payment of the Price id. Horses sold and deli- vered id. Money had and received for Re-payment of the Price 146 Money had and received forRepaynient of Part of the Price id. Money had and received for Price of Horse wrongfully Sold. . . . id. Money received subject to certain Conditions 147 A Count on an Account stated id. Assumpsit on a Breach of Warranty id. Case for a False War- ranty id. Liability of an Infant. .. 148 Case for Fraudulent Re- presentation id. The Inducement in As- sumpsit id. The Inducement in Case . id. Statement of the Consider- ation 149 If the Horse turn out lucky id. Words used in the State- ment id. 140 CONTRACTS CONCERNING HORSES, &C. Statement of the Promise or Warranty 150 Condition annexed to the Promise or Warranty id. Qualification of the Pro- mise or Warranty . . id. The Purchase and the Payment 151 Statemerit of the False Warranty or Fraudu- lent Representation . . . id. Stateme7it of the Breach. . id. Statement of the Damage 152 Proof in Goods bargained and sold id. Proof in Assumpsit for not accepting id. Meaning of Readiness and Willingness 153 Proof in Assumpsit for not delivering id. Proof in Goods sold and delivered id. Proof in Money had and received id. Proof of an Account stated 1 54 Proof in Assumpsit on a Breach of Warranty . . id. Proof in Case for a False Warranty id. Proof in Case for Frau- dulent Representation . 155 Proof of the Bargain and Sale id. Proof of the Consideration id. Proof of Payment of the Price . 156 Appropriation of the Money tendered id. A late Case id. Proof of the Promise or Warranty 157 Warranty in a Receipt not always conclusive id. Written Warranty re- quires no Agreement Stamp 158 A Warranty not con- tained in the Receipt id. Where Authority to Warrant need not he proved 158 Where Authority to Warrant must he proved id. Proof of Power to re- scind id. Proof of Fraudulent Re- presentation 159 Proof of the Breach of Warranty id. Notice of the Nature of the Unsoundness . . . id. Evidence as to Un- soundness id. Matter of Fact alone . . 160 Either Fact or Veteri- nary Opinion id. Both Fact and Veteri- nary Opinion id. Veterinary Opinion alone id. Evidence as to Vice ... id. Evidence as to Unfit- ness, 8fc id. Proof of Recision id. Proof of Tender id. Pleading and Evidence FOR THE Defendant. Tfliat must be specially pleaded 161 Defence for Goods bar- gained and sold, and in Assumpsit /or 7iot ac- cepting id. Defence in Assumpsit /or 7iot delivering id. l^Htere Evidence of Usage of Trade is not admis- sible 162 Defence for Goods sold and delivered id. Defence to Action on a Cheque for the Price . . id. Evidence in Reduction of Damages id. Defence for Residue of 'the Price 163 PLEADINGS IN GENERAL. 141 Defence for Money had and received 163 Defence in Assumpsit on a Breach of Warranty, id. A surreptitious War- ranty 164 Condition annexed to a Warranty id. Evidence in Reduction of Damages 165 Defence in Case for a False Warranty id. Defence in Case for Fraudulent Represen- tation id. Disputing the Warranty 166 Disputing the Unsound- ness, 8^c id. Subsequent Recovery . . id. Competency of Witnesses . id. The late Jets 167 Damages. General Damages id. Special Damages id. In Actions for a Sum cer- tain id. Interest id. In Actions lohich sound in Damages 168 A foolish Bargain .... id. An impossible Contract id. Cannot be higher than the Amount laid 169 In Goods bargained and sold id. In Assumpsit for not ac- cepting 169 In Assumpsit /or not de- livering id. In Goods sold and deli- vered id. In Money had and re- ceived id. In Trover 170 On Breach of Warranty . . id. Where the Horse has not been tendered id. Where the Horse has been tendered id. Expense of Keep id. Seller liable for reason- able Keep 171 What is reasonable . . . id. Keeping the Horse till a Fair 172 Expense consequent on the Warranty id. Expense in selling. ... 173 Expense in advancing the Horse's Value . . id. Horse tendered, and then sold by Auction id. Expense of Veterinary Certificate and Coun- sel's Opinion 174 Travelling Expenses . . id. Loss of a good Bargain id. Re-selling ivith a War- ranty id. JVhere the Damages are very small 175 PLEADINGS IN GENERAL. With respect to the language and form of pleadings in Their lan- general, various provisions have lately been made by the p^^^ ^^^ Common Law Procedure Act (a), and those applicable to the present subject are as follows : — " All statements which need not be proved, such as Fictitious the statement of time, quantity, quality and value, where ^"^ "eediess (a) 15 & 16 Vict. c. 76. averments not to be made. 142 Judgment upon de- murrer to be given ac- cording to the very right of the cause. Objections by way of Special De- murrer taken away. Pleadings framed to em- barrass may be struck out or amended. Pleadings to be dated and entered as of the time of pleading, un- less order to the contrary. Performance of conditions precedent may be averred gene- rally. CONTRACTS CONCERNING HORSES, &C. these are immaterial ; the stating of losing and finding, and bailment in actions for goods or their value ; the statement of acts of ti'espass having been committed with force and arms and against the peace of our lady the Queen ; the statement of promises "which need not be proved, as pro- mises in indebitatus counts and mutual promises to per- form agreements ; and all statements of a like kind, shall be omitted (b)." '^ Either party may object by Demun-er to the pleading of the opposite party on the ground that such pleading does not set forth sufficient ground of action, defence or reply, as the case may be; and where issue is joined on such Demurrer, the Court shall proceed and give judg- ment according as the very right of the cause and matter in law shall appear unto them, without regarding any imperfection, omission, defect in or lack of form ; and no judgment shall be arrested, stayed or reversed for any such imperfection, omission, defect in or lack of form (c).^' *' No pleading shall be deemed to be insufficient for any defect which could heretofore only be objected to by Special Demuri'er {d)." " If any pleading be so framed as to prejudice, em- barrass or delaj'^ the fair trial of the action, the opposite party may apply to the Court or a Judge to strike out or amend such pleading ; and the Judge or any Court shall make such order respecting the same, and also respecting the costs of the application, as such Court or Judge shall see fit (e)." " Every declaration and other pleading shall be en- titled of the proper Court and of the day of the month and the year when the same was pleaded, and shall bear no other time or date, and every declaration and other pleading shall also be entered on the record made up for trial and on the judgment roll under the date of the day of the month and year when the same respectively took place, and without reference to any other time or date, unless otherw^ise specially ordered by the Court or Judge (/).- " It shall be lawful for the plaintiff" or defendant in an action to aver performance of conditions precedent gene- rally, and the opposite party shall not deny such aver- (&)15&16Vict.c.76,s.49. (c) Ibid. s. 50. {d) Ibid. s. 51. (e) 15&16Vict.c.76,s.52. (/) Ibid. s. 51. PLEADINGS IlSr GENERAL. 143 ment generally, but shall specify in his pleading the con- dition or conditions precedent, the performance of Avhich he intends to contest(^).'^ Under the Common Law Procedure Act, power is given Power of to amend the misjoinder or nonjoinder of plaintiffs or de- -A-mendment. fendants {h), and all defects and errors in any proceed- ing in civil causes {i). 3Iisjoinder and nonjoinder of plaintiffs may be amended Misjoinder at any time before the trial by order of the Court or ^Q^^^^^f; a Judge {k). If Notice of nonjoinder of plaintiffs has been plaintiffs, given, or if a plea in abatement has been pleaded, the plaintiff may amend without order {I) ; but if he does not so amend, the noiijoinder (so far at least as regards the persons mentioned in such notice or plea) cannot be amended at the tHal{m). However, the misjoinder of plaintiffs, and, if no Notice of nonjoinder has been given or plea in abatement pleaded, or so far as regards persons not therein mentioned, the nonjoinder of plaintiffs, may be amended at the trial, provided that the parties, to be struck out or joined, consent either in person or by writing (7w). Misjoinder of defendants in actions on contract msLj be Misjoinder amended before or at the trial in). Nonjoinder oi^^^ "on- defendants in actions on contract, after plea in abatement, d'efendants. may be amended by the plaintiff before trial, and he may proceed against the original and added defend- ants fo). '' It shall be lawful for the superior Courts of common Amendment law, and every Judge thereof, and any Judo^e sittins: at of defectsand ... " ° , iii"ii?r J errors m any nisiprius, AT ALL times to amend all detects and en-ors proceedin<^s. in any proceeding in ci%al causes, whether there is any- thing in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not ; and all such Amendments may be made with or without costs, and upon such terms as to the Court or Judge may seem fit ; and all such Amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties, shall be so made (ij." (g) 15 & 16 Vict c. 76, s. 57. {k) 15 & 16 Vict c. 76, s. 34. (/«) See Holland's Common (/) Ibid. s. 36. Law Procedure Act, p. 20. {m) Ibid. s. 35. (0 15 & 16 Vict c. 76, s. In) Ibid. s. 37. 222. (o) Ibid. s. 38. 144 CONTRACTS CONCERNING HORSES, &C. Executory and executed contracts. Goods bar- gained and sold for pay- ment of the Price. Assumpsit for not ac- cepting. Resale of the goods. PLEADING AND EVIDENCE FOR THE PLAINTIFF. Where you proceed for a breach of an executory con- tract, you must rest on the contract itself; but when the contract has been executed, you proceed on the promise implied by law (r). Where the property has completely passed (s), and the Vendor does not wish to deliver the Horse till he has re- ceived the Price agreed upon ; or if the purchaser refuse to receive him, the Vendor may bring an action on the common count for Goods bargained and sold (t). Where the Purchaser refuses to accept the Horse he has bought, the Vendor may maintain against him an action of Assumpsit for not accepting, even though the Horse may afterwards have been re-sold {u) ; and the Declaration will set out the Inducement, the Considera- tion and the Promise, the Breach and the Damage. Where a certain time or place for delivery has been agreed upon, it is the duty of the Vendor to tender the Horse, and such Tender must be proved (v). The state- ment of it in the declaration wdll be included in the general averment of performance of conditions prece- dent (.r). AVhere by the terms of the Contract the de- fendant was bound to fetch away the Horse, the plaintiff should state in the declaration that he has not done so, and aver his own readiness and willingness to deliver {y). Where the Purchaser of goods refuses to take them, the Vendor by reselling them does not preclude himself fi'ora recovering Damages for breach of Contract. And it w^as decided by the Court of Common Pleas that " when a party refuses to take goods he has purchased, they should be resold, and that he should be liable to the loss, if any, upon the resale (^r)." (r) Per Lord Campbell, Lowe V. London and North Western Railway Company, 21 L. J. 363. (Q. B.) (s) Atkinson v. Bell, 8 B. & C. 277 ; Scott v. England, 2 D. & L. 524. {t) Dunmore v. Taylor, Peake, N. P. C. 56 ; Hankey v. Smith, Ibid. 57, n. (m) Maclean v. Dunn, 1 M. & P. 761 ; S.C.^ Bing. 722 ; Hore V. Milner, Peake, N. P. C. 58, n. (v) Bordenave v. Gregory, 5 East, 111. (a:)15&]6Vict.c.76, S.57. ly) Bach v. Owen, 5 T. R. 409 ; Rawson v. Johnson, 1 East, 203 ; Wilks v. Atkinson, 1 Marsh. 412. (2) Maclean v. Dunn, 4 Bing. 722. PLEADING AXD EVIDENCE FOR THE PLAINTIFF. 145 Where the Vendor refuses to deliver the Horse he has Assumpsit sold, the Purchaser may maintain against him an action fprnotde- o^ Assumpsit for not delivering (a) ; and where a parti- ^^^""^• cular time for delivery has been agreed upon, the Decla- ration will set out the Inducement, the Consideration and Promise, the Breach and the Damage, and aver a readiness and willingness to accept and receive the Horse and pay the Price {b). If no particular time has been spe- cified, and the Contract be to deliver the Horse generally, as where an action of Assumpsit for not delivering was brought against a party who had sold the plaintiff a Mare, and promised, if she proved Unsound, to provide another or return the money (c), there must be a special Hequest to deliver, which will come under a general aver- ment of performance of conditions precedent (r7). But if a place is mentioned, and no time (e), or the defendant has incapacitated himself from completing the agreement, as by reselling, &c., a Bequest to deliver is unnecessary {/). Where the Vendor has delivered the Horse, and the Goods sold Purchaser neglects or refuses to pay for him ; or if a a"d de- Horse or Goods be taken in part payment, and the re- Payment'of sidue is unpaid {g)\ or if the Purchaser has the Horse on the Price, the terms of sale or return, and keeps him an unreason- able time, the Vendor may maintain an action on the common count for Goods sold and delivered {h) . And where A. agreed to give a Horse warranted sound, Horses sold in exchange for a Horse of B. and a sum of money, and ^?^ ^^' the Horses were exchanged; but B. refused to pay the money, pretending that A.'s Horse was unsound ; it was held that it might be recovered on an indebitatus count as Horses sold and delivei'ed (i). (a) Bach v. Owen, 5 T. R. M. & W. 139. 410. (h) Bay ley v. Gouldsmith, (b) 15 & 16 Vict. c. 76, Peake, 56; and see BiancJii s. 57 ; Bordenave v. Gregory, v. Nash, 1 M. & W. 545 ; and 5 East, 111. see Dyer v. Cowley, 17 L. J. (c) 3 Wentw. 3; and 2 361 (Q. B.); Moss \. Sweet, Chit. Pleading, 6th ed. 166. 16 L. T. 441 (Q. B.). The (c?) Bach v. Owen, 5 T. R. count for " Goods sold and 410; 15 & 16 Vict c. 76, s. 57. delivered'^ is not mentioned (e) See Jones v. Gibbons, among the " Forms of Plead- 22 L. J. 348 (Exch.). ings," ScheJ. (B.), of the (/) Bowdell V. Parsons, 10 Common Law Procedure Act, East, 359. 15 & 16 Vict. c. 78. (g) Sheldon V. Cox, 3 B. & (?) Sheldon v. Cox, 3 B. & C. 420 ; Harrison v. Luke, 14 C. 420 ; S. C. 5D.& R. 277 ; H 146 Money had and received for Repay- ment of the Price. Money had and received lor Repay- ment of part of the price. ]\Ioney had and received for price of Horse ■wrongfully sold. CONTRACTS CONCERNING HORSES, &C. Where an article, whicli has been paid for, does not answer the description of the thing which when bought it purported to be(y); or w^here a Horse is bought warranted sound, &c., and paid for, and on its turning out unsound is returned to the seller, who receives it, there is a mutual decision of the Contract, and the buyer may recover the Pi'ice paid in an action on the common count for Money had and received {g). Also, where a Horse has been bought warranted sound, to be returned if Unsound (h) ; or if the contract is, tliat the Horse is to be returned if Unsuitable (^), or Unjit for a particular purpose (k) ; and circumstances arise in any of these cases whicli justify the return of the Horse, and the Horse is tendered, the same form of action lies for JRepay- mentofthe Price. A count for Horse meat and Stabling may be added if necessary, and also the Account stated. Where a Horse is bought and the Price paid, but the Buyer, by the terms of tlie agreement, has the option of returning the Horse within 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. Thus, where a pair of Horses were bought for 80/. and paid for, with liberty to return them within a month, allowing the seller lOZ. out of the 80/., but that if the buyer kept them beyond the month, he should pay the seller lOZ. beyond the 80/., it was held that upon the Horses being returned within the month, the buyer had a right to recover the 70/. from the seller, in an action on the common count for Money had and received ( /•) If a Sheriff wrongfully seize and sell the Horse of a third person under an execution, the latter may sue him for Money had and received ;^ and he will make out a prima facie case by merelj^ proving his, the plaintiff's, possession of the Horse at the time of seizure. Thus ini the case of Oughton v. Seppings{m), a Sherift^'s officer had wrongfully seized under a li. fa. against A. a Horse Earl of Falmouth v. Penrose, G B. & C. 387; and see 2 Chit. Pleading, 6th ed. 167. (/) Gompertz v. Bartlett, 22 L. J. 99 (Q. B.) is) ^Veston v. Downes, Doug. 24 ; Power v. Wells, Cowp. 818; and Simpson v. Potts, before Rolfe,BM Carlisle Spr. Ass. 1847, Appendix. (/<) Adam v. Richards, H. Bla. 573. (^) Towers v. Barrett, 1 T.' R. 133. (A") Chanter v. Hopkins, 41 M. & W. 406. (Z) Hurst V. Orbell, 8 A. &I E. 107. {m) Oughton v. Seppings, V B. & Adol. 241. PLEADING AXD EVIDENCE FOR THE PLAINTIFF. 147 belonging to B. The Horse was sold by the Sheriff, and the money paid over to the officer. B. brought an ac- tion against the officer, for Money had and received, to recover the amount. It appeared tliat the Horse had be- longed to the husband of B., but that after his death she had provided for his keep ; and although no letters of administration were produced, it was held that this was sufficient evidence against a wrong doer to entitle her to recover in the action. Money received by B. on A.'s account, subject to cer- Money re- tain conditions, cannot, until those conditions have been ceived sub- complied with, be recovered as Money had and received ^^^^^^^q^,^' to A.'s USe(?z). ditions. A count for Money found to he due upon an account a count on stated should always be introduced in an action upon a ^" account simple contract, for the recovery of a pecuniary de- ^ ^ ^ • raand {o). It is the usual practice to bring an action of Assumpsit Assumpsit on on the Breach of an express Warranty ; and in such form a Breach of of action, the Declaration will set out the Inducement, ^' the Consideration, and the Warranty and state a Pur- chase; it will also set out the Breach and the Damage. There may also be added a count for Money had and received (p), and also the Account stated (q). The old method of suing on a Breach of Warranty Case for a was an action on the Case{r). And where this form of ^^^^e War- action is used, the Declaration will consist of the In- ^^" ^" ducement ; the statement of the Wrongful Act, namely, the Sale by means of the False Warranty (s) ; and the statement of the Damage. It ought to appear in the Declaration that the Warranty was made at the time of sale, Warrantizando vendidit (t). But a Scienter need not be alleged, and if stated it need not be proved (z<). There may be also added a count for Money had a?id received (p), and also the Account stated {q). (n) Hardingham \. Allen, 5 (s) Mummery v. Paul, 1 C. C. B. 793. B. 325. (o) See Chit. jun. Contr. (t) Com. Dig. Action on 4th ed. 562. the Case for Deceit, F. 2 ; (p) Cahoon v. Burford, 13 Margetson v. Wright, 6 M. & M. & W. 136', S. a 2 D. & L, P. 610. 234. (u) Williamson v. Allison, (q) 2 Chit. Pleading, 6th 2 East, 453 ; and see ed. 172. V. Purchase, 6 Geo. 2, there (r) Marsetson v. Wright, 6 cited ; and 2 Chit. Pleading, M. & P. 610. 6th ed. 480. h2 148 CONTRACTS CONCERNIXG HORSES, &C. Liability of an Infant. Case for Fraudulent Representa- tion. The Induce- ment in As- sumpsit. The Induce- ment in Case Although Infants are liable for torts and injuries of a private nature (.r), yet where the substantial ground of action is contract, the plaintiff cannot by declaring in tort, render a person liable who would not have been liable on his promise. Therefore where the plaintiff de- clared that having^ ag^reed to exchano^e ]\Iares with the defendant, the defendant by falsely warranting his Mai*e to be sound, well knowing her to be unsound, falsely and fraudulently deceived the plaintiff, &c., it was held that Infancy was a good plea in bar(:r). "We have seen in the Seventli Chapter under what cir- cumstances an action on the Case lies, where a Horse has been sold without a Warranty, and also what con- stitutes Fraudulent Representation. Where such an ac- tion is brought, the Declaration will consist of the In- ducement ; the statement of the Wrongful act, namely, the Sale by means of the Fraudulent Representation (?/), and with regard to which a Scienter must be laid ; and also the statement of the Damage. The Inducement in an action of Assumpsit is in the nature of a preamble, stating the circumstances under which the Contract was made, or to which the Conside- ration has reference. But where the mere statement of the Consideration and Promise will be sufficiently intel- ligible, without any prefatory allegation, they may be set forth without any Inducement (z). In an action on the Case for a False AVarranty, or for a Fraudulent Representation, the Declaration must cor- rectly state the Contract (a). Thus where a Declaration in Case stated that the plaintiff bargained with the de- fendants, and then alleged a deceitful Warranty of Sheep the joint property of two defendants, upon a joint sale made to him by both, and there was proof of a Contract of sale and Warranty by one only as of his own separate property, it was held, before the passing of 15 & 16 Vict, c. 76, that the plaintiff could not recover, as the action, though laid in tort, was founded on the joint contract alleged (5). {x) Green v. Greenbank, 2 Marsh. 485. (y) Mummery v. Paul, 1 C. B. 325. (z) 1 Chit Pleading, 6th ed. 290. (a) See 1 Chit. Pleading, 6th ed. 384; and Ireland v. Johnson, 1 Bing. N. C. 162; Brotherton v. Wood, 6 Moore, 34 ; Boorman v. Brown, 3 Q. B. 11. {b) Wenll V. King, 12 East, 452 ; and see Green v. Green- bank, 2 Marsh. 485. PLEADING AND EVIDENCE FOR THE PLAINTIFF. 149 The Consideration may either be Executed or Execu- statement of tory. An Executed Consideration consists of something ^^^e Consider- past, or done before the making of the Promise, and must be shown to have arisen at the defendant's re- quest (c). An Executory Considei'ation is something to be done, and in the statement of it a greater degree of certainty is required ((/). But in either case the whole of the Consideration, if it be an entire one, should be stated, no part of it ought to be omitted (e). Thus, where an Agent sold a Horse belonging to A., and another belonging to B., to C. at an entire Price, and warranted them Sound; and B.'s Horse turning out to be Unsound, C. brought his action against B., declaring in the usual form as upon a Purchase and ^yarranty of one Horse onlj^ ; Lord Ellenborough, C. J., held that the evidence did not sup- port the Declaration, because the Contract being entire for the Sale of two Horses, the plaintiff could not divide it, and declare upon it as upon the Sale of one Horse only(/). But where in an action of Assumpsit on the Warranty if the Horse of a Horse, the Consideration stated for the Warranty j"^^" °^^ was, that the plaintiff would purchase the Horse for 63/.; but the Consideration as proved was, that the plaintiff would pay that sum, and if the Horse was " luchy," would give the defendant 5/. on the buying of another Horse ; it was held to be no variance, as the conditional promise omitted in the Declaration was too vague to be legally enforced, and did not amount to a promise in point of law f^). If the plaintiff in stating the Consideration, uses the Words used words "Had bought" instead of "Would buy," it jg-^"-"-"- bad, because an executed Consideration will support no other promise than such as would be implied by law (A). But this would be amended by the Judge at the Trial (i). (c) See 1 Chit. Pleading, 4 B. & Aid. 269. 6th ed. 295; and King v. (/) Symonds v. Carr, 1 Sears, 2 C. jM. & R. 5Z. Camp. 361. {d) See 1 Chit. Pleading, {g) Guthing v. Lijnn, 2 B. 6th ed. 296 ; and Ring v. Rox- & Adol. 232 ; and see Saxhif brotigh, 2 Tyrw. 468 ; S. C. 2 v. JVilkin, 1 D. & L. 281. C. & J. 418. (h) Roscorla v. Thomas, 3 (e) Clarhe v. Gray, 6 East, Q. B. 234. 568. As to an Exchange, see [i) 15 & 16 Vict. c. 76, s. Mayor of Reading v. Clarke, 222. in the state- ment. loO Statement of the Promise or Warranty. Condition annexed to the Promise or Warranty. Qualification of the Pro- mise or Warranty. CONTRACTS CONCERNING HORSES, &C. There is however no variance if the word " Horse" is used and it is proved to be a " Mare (A)," or " Geld- ing (Z);" nor where the price is stated as money, and part of the price was paid by giving goods of a specified value (m). If any one substantive part of a Warranty be proved not to be true, there is a Breach on which an action may be maintained, and it is sufficient that the plaintiff set out all the substantive and material parts of the Contract, the breach of which he complains of, the parts omitted not qualifying in any manner the sense of those parts set out upon which the Breaches are assigned. As where the plaintiff declared that in consideration of his redeli- very to the defendant of an unsound Horse, the defend- ant promised to deliver to him another Horse in lieu, which should be worth 80Z. and be a young Horse, and then alleged a Breach in both respects, it was held suffi- cient, though it was proved that the defendant bad also promised that the Horse was sound and had never been in harness (w). And where there was a private sale of a Mare at a Repository, and a Warranty of Soundness was given, but there was a Notice of the Rules of Sale, by which no Warranty was to remain in force after twelve o'clock the following day, the Court of Exchequer held it suffi- cient to declare on the Warranty alone without the con- dition annexed to it. However, Mr. Baron Parke said, " If the matter relating to the notice had been by way of proviso upon the Warranty, it might perhaps have been necessary to state it in the Declaration, but upon that point I give no opinion (o)." But where there is a Qualification of the Promise it should be stated in the Declaration ; for where the plain- tiff, before the passing of 15 & 16 Vict. c. 76, declared on a AYarranty that the Horse was " sound," and the War- ranty proved was that tlie Horse was " sound every where (k) Ware v. Juder, 2 C. & P. 35 1 ; or " Colt" or " Filly," in an Indictment, Reg. v. Aldridge, 4 Cox, 143, (/) " Equtis," in the Latin pleadings, was satisfied by proof of a "Gelding," Gravely V. Ford, Lord Raym. 209. (m) Hands v. Burton, 9 East, 349. (w) Mile sv. She ward, 8 East, 7 ; Clarke v. Graij, 6 East, 568. (o) Smart v. Hxjde, 8 M. & W. 728. PLEADING AND EVIDENCE FOR THE PLAINTIFF. 151 except a kick on the leg,'' the omission was held to be fatal (jo). Where the Consideration is executory, it is necessary The Purchase for the plaintiff to prove the performance of the Con- ^4?^ ^^^ sideration on his part, that is to say, the Purchase, in order to show that he possesses a right of action, and there must be a general averment of performance of con- ditions precedent (g'). And as the Price has usually been paid when an action is brought on a Breach of Warranty, the Payment, if made, will be included in such an aver- ment, but Payment is not essential to support the action. If the False Warranty or Misrepresentation be mis- statement of stated, and the variance be material to the merits of the wtrL^lt!, nr case, it will be fatal ; but where it is immaterial, and the Fraudulent defendant cannot have been misled by it, the Judge will Representa- amend. Thus where an action on the Case was brought against a third party for a JMisrepresentation on the sale of a Horse, the Declaration stated that the defendant warranted the Horse to be "sound and a good worker," and it appeared in evidence that he warranted the Horse " sound in the wind," an objection was taken that the Warranty and Misrepresentation alleged in the Declara- tion were not proved ; but Mr. Baron Alderson said, " I think the Declaration is substantially proved, and there- fore I shall direct the record to be amended under the recent statute (r). The variance relied upon by the de- fendant is not material to the merits. The merits are, whether or no the defendant made a Fraudulent Misre- presentation. It is proved that he did ; and the terms of the jNIisrepresentation are not quite accurately stated in the Declaration, it is clear that the defendant cannot have been misled by the statement. If he had, I would not amend. But he comes here to defend himself from the charge of having made a Fraudulent Misrepresenta- tion on the occasion of the sale, and whether he repre- sented the Horse to be wholly sound, or merely sound in the wind, makes no difference to the merits." After this amendment a verdict was found for the plaintiff (s). A Breach must always be stated in the Declaration, statement of the breach. (p) Joyies v. Cowleij, 4 B. & 15 & 16 Vict. c. 76, s. 57. C. 445 ; S. C. 6 D. & R. 533. (r) 3 & 4 Will. 4, c. 42, iq) See Bui. N. P. 146; s. 23. andTJiJHg v. Roxbrough, 2 Tyr. (s) Mash v, Densham, 1 M. 468 ; S.a2C.& J. 418 ; and & Rob. 442 ; and see 15 & 16 1 Chit Pleading, 6th ed. 296 ; Vict. c. 76, s. 222. 152 statement of the Damage. Proof in Goods bar- gainei.and sold. Proof in As- sumpsit for not ac- cepting. CONTRACTS CONCERNING HORSES, kc. SO that the cause of complaint may appear (^). If the contract be in the disjunctive the breach ought to be as- signed that the defendant did not do one act or other ; as on a promise to deliver a Horse by a particular day or pay a sum of money (w). It is a Rule in Pleading that the Breach may in general be assigned in the negative of the words of the Contract ; and therefore it is not neces- sary that the particular description of Unsoundness should be stated (^). In order to recover Special Damages it is necessary that they be explicitly stated in the Declaration, so that the defendant may be prepared to dispute the facts. But Damages which necessarily, and by implication of law, ensue from the non-performance of the contract, need not be expressly detailed, and are recoverable under the com- mon conclusion of the Declaration {y). Where the plaintiff brings an action for the price of his Horse as Goods bargained and sold, the plea Never was indebted will put him to prove such a Contract of a sale (2^), made by him to the defendant and completed, as was sufficient in law to vest the property in the defend- ant. For instance, where the price is lOZ. or upwards, the plaintiff" must prove that some requisite of the 17th sec- tion of the Statute of Frauds has been complied with {a). And it will be necessarj^ to show that a specific price was agreed upon {h) as part of the contract. "Where the plaintiff brings an action of Assumpsit for not accepting the Horse he has sold to the defendant, and the plea of Non assumpit, or a plea traversing the Con- tract or Agreement in the Declaration, is pleaded, the plaintiff must prove the Contract, that is, the alleged Consideration and the Promise {c). And if the defendant contest it in his pleading, the plaintiff must show either a Tender (d), as the case may be, or that during a (t) Briclchead v. Archbishop of York, Hob. 198, 233. (m) Com. Dig. Pleader, C. ; Wright v. Johnson, 1 Sid. 440, 447 ; Aleherry v. Walhy, 1 Stra. 231. {x) Com. Dig. Pleader, C. 45 ; and see 1 Chit. Pleading, 6th ed. 172. {y) See Boorman v. Nash, 9B. &C. 152; and Chitjun. Contr. 4th ed. 771 ; and Da- mages, post. (z) Requires no Stamp, Marson v. Short, 2 Bing. N. C. 118; ^. C. 2 Scott, 243. (a) Elliott v. Pybus, 10 Bing. 512. {b) Simmons v. Swift, 5 B. & C.'857. (c) Reg. Gen. H. T. 1853, r. 6; Seal v. White, 12 A. & E. 670. (d) Proof of Tender, post. PLEADING AXD EVIDEXCE FOR THE PLAINTIFF. 153 reasonable time he was Heady and Willing to deliver it (e). The meaning of Beadiness and Willingness is, that the Meaning of non-completion of the Contract was not the fault of the readiness and plaintiff, and that he was disposed and able to complete ' ^"?"^ss. it; if it had not been by the defendant (/*). Where a Horse is bought, and an action of Assumpsit Proof in As- is brought for not delivering him, the plea of Nan As- ^^^^^^^ ^°^ sumpsit, or a plea traversing the Contract or Agreement uvering. alleged in the Declaration, will put the plaintiff' to prove the Contract (g), namely, the alleged Consideration and Promise ; and if the defendant contest it in his pleading, the plaintiff" must prove that he was Beady and Willing to accept and pay for it. But it will not be necessary to prove a Tender of the money (Ji). And it is sufficient evidence that the plaintiff* was Beady and Willing if within a reasonable time the Horse is demanded by him(2), or his servant (A). Where the plaintiff after delivering the Horse brings an Proof in action for his price, and the plea Never was indebted ^°?'^^ ^^^^ is pleaded, he must be prepared to prove the Sale, ofuvered. which the Delivery of the Horse to the defendant and an acceptance by him will be sufficient prima fade evi- dence (Oj the Delivery either to the defendant or his agent, or something which has been done equivalent to a Delivery {m) ; also the Trice agreed upon for the Horse, but if the Price forms no part of the Contract, or if the Contract is merelj^ to be implied from the Delivery to and acceptance by the defendant, the plaintiff" must be pre- pared to show the real and reasonable Value of the Horse by persons of competent experience. Where the plaintiff after a Breach of Warrantj^ sues Proof in for Repayment of the purchase money as Money had and Money had received, and the plea Never was indebted h pleaded, he ^" received. (e) Granger v. Dacre, 12 Marsh. 412; Levi/ v. Lord M. & W. 431; Tempest v. ITer&er^, 7 Taunt. 318 ; Tem- Kilner, 2 C. B. 308. pest v. KUner, 2 C. B. 308. (/ ) Cost v. Amhergate Rail- (k) Squire v. Hunt, 3 Price, way Company, 20 L. J. 465. 68. (Q. B.) (l) Bennett v. Handerson, {g) Reg. Gen. T. T. 1853, 2 Stark. N. P. C. 550 ; and see r. 6. Smith v. Rolt, 9 C. & P. Q96. (h) Ratvson v. Johnson, 1 (;«) Lee v. Shore, 1 B. & C. East, 203; Waterhousew.Skin- 94; Smith v. Chance, 2 B. & tier, 2 B. & P. 447. A. 755. (i) Wilkes v. Atkinson, 1 H 5 154 Proof of an Account stated. Proof in As- sumpsit on a Breach of Warranty. Proof in Case for a False Warranty. CONTRACTS CONCERNING HORSES, &C. must sliow those facts which make such Receipt by the defendant a Receipt to the use of the plaintifF(o). He must, therefore, prove the Consideration and the Per- formance of it on his part, namely, the Payment of a particular Price (p) ; also the Warranty, the Breach of Warranty, and either an actual Rescision of the Con- tract or a Poiver to Rescind, and a consequent Tender of the Horse. To support a count for Money found to be due on an account stated, it must appear that, at the time of the accounting, which must have been before action brought, a demand existed between the parties respecting which an account was stated, that a balance was then struck and agreed upon, and that the defendant then expressly admitted that a certain sum was then due from him to the plaintiff (5'). Where an action oi Assumpsit is brought on a Breach of Warranty, and the plea of Non assumpsit, or, he did not Warrant, is pleaded, the plaintiff must prove the fact of the sale and Warranty having been given, but not the Breach, unless it is traversed (r). If the Breach is tra- versed he must prove the Unsoundness or Vice, or what- ever is alleged as the subject-matter of the Breach. And of course he must in all cases prove Damage whether General or Special. Where an action on the Case is brought for a False Warranty, the plea of Not Guilty will put the plaintiff to prove the Wrongful act alleged to have been committed by the defendant (^), namely, the Sale by means of the False Warranty {s). But he is not put to prove the Inducement (^) unless it be traversed. However, it is reported to have been laid down by Mr. Baron Parke at Nisi Prius in Spencer v. Dawson (u), " that the plea of Not Guilty puts in issue both the Warranty and Un- soundness, and in short the whole declaration except tlie Bargain and Sale, which was matter of Inducement." But it seems impossible to separate the Sale from the (o) Reg. Gen. T. T. 1853, r. 6. {p) Harvey v. Archhold, 3 B. & C. 626 ; Bernasconi v. Anderson, M. & M. 183 ; Lee- son v. Smith, 4 N. & M. 304. {q) See Chit. jun. Contr. 4th ed. 562, 568, and the authorities there cited. (r) Reg. Gen. T. T. 1853, r. 6. (.9) See Mummery v. Paul, 1 C. B. 327. (0 Reg. Gen. T. T. 1853, r. 16. (m) Spencer v. Dawson, 1 M. & Rob. 552. 1>LEAB1NG AND EVIDENCE FOR THE PLAINTIFF. 155 M^arranty (m), and the plaintiff should alwaj^s come into Court prepared with proof of the transaction. He must also prove Damage whether general or special. Where an action on the Case is brought for Fraudulent Proof in Case Representation on the sale of a Horse, the plea of Not j'o'" Fraudu- Gidlty puts the plaintiff to prove the Wrongful act sentatkm.^' alleged to have been committed by the" defendant (:r), namely, the Sale by means of the Fraudulent JRepre- sentatwn{y) ; and it is essential to show that there was a Sale and also a Misrepresentation {z). He is not called upon to prove the Inducement unless it be tra- versed. But he must give proof of Damage whether general or special. A Sale may in all cases be implied prima facie from Proof of the evidence of a delivery to, and an acceptance by, the pur- ^argam and chaser («). AYe have seen, in the First Chapter, Avhat is sufficient evidence of a contract for Sale, either where the value is under lOZ. (b) ; or the agreement is not to be performed within a year (c) ; or the value is lOZ. or upwards, within the 17th section of the Statute of Frauds fc?). Where there is an agreement in Avriting, it should be put in and proved, and it is not necessary that it should be stamped (e). Where however the Bargain and Sale has been made by word of mouth, the plaintiff (/"), or some witness {g) of the transaction must be called. Where the Consideration is declared upon as executory, Proof of the it W'ill in point of fact depend upon the same proof as Considera- the Contract for Sale. When it is declared upon as executed, the plaintiff must show that it took place before the Contract, and that it arose at the defendant's re- quest {h). In the case of a Sale he must prove Pay- (ii) See Mummery v. Paul, (d) 29 Car. 2, c. 3, s. 17 ; 1 C. B. 325. and see a7ite, Chap. 1. (jc) Reg. Gen. T. T. 1853, (e) Skrine v. Elmore, 2 r. 16. Camp. 407. (y) PerCresswell, J.,jl/im- (/) 14 & 15 Vict. c. 99, mery v. Paul, 1 C. B. 327. ss. 1, 2, Appendix. {z) Per Erie, J., Ibid. {g) The plaintiff's hus- (rt) Bennett v. Henderson, band or wife is now admissi- 2 Stark. 550 ; and see Smith ble as a witness, 16 & 17 Vict. V. Rolt, 9 C. & P. 696. c. 83, ss. 1, 4, Appendix. (6) See an^e. Chap. 1, {h) King v. Sears, 2 Cr. M. (c) 29 Car. 2, c. 3, s. 4 ; & R, 48. and see ante, Chap. 1. 156 CONTRACTS CONCERNING HORSES, &C. Proof of pay- ment of the Price. Appropria- tion of money ten- dered. A late case. ment of the Price; but Avhere the Consideration is another Horse, or other goods, a Delivery and Accept- ance must be proved. \Miere however the transaction is substantially a Sale, the plaintiff may prove that the defendant took another Horse in part payment {i). The Payment of the Price is usually proved by pro- ducing the Receipt, which of course must bear a Stamp, where the sum is 2Z. or upwards (A) ; and if no Receipt ■was given, or it was unstamped or lost, the plaintiff, or some person who witnessed the transaction, must be put into the box(Z). Where a claim consists of several items, tlie party making the Tender has a right of appropriation ; but if he omits to make any appropriation, the right to appro- priate is transferred to the other party {m). The plaintiff's Horse, warranted quiet in harness, was sold for 16Z. at Aldridge's Repository. It was afterw^ards returned on the ground that it did not answer its war- ranty, and, on being tried in a break, was found not to be quiet in harness. By the printed regulations of the Repository the purchase-money for any Horse, Carriage, &c., sold there was not to be paid over to the vendor until four days after the sale. And he was also to pay IO5. as the expense of trial, when a Horse was found not to answer his warranty. After the trial of the Horse, the plaintiff called at the Repository and demanded an account of his expenses, when he received the following : — ^'1847. July 31. Bay gelding, bait ..016 Auction 5 July 31 ^ Aug. 4 S Aug. 3. Bay gelding, three days 10 To cash paid for trial of Bay gelding in harness 10 6 £17 The plaintiff, objecting that the charge was exorbitant, laid down 19s. 6c?. on the desk in the defendant's office (i) Hands v. Burton, 9 East, 349. (A-) 16 & 17 Vict. c. 59, s. 3. {l) See Rambert v. Cohen, 4 Esp. 213. {m) See per Jervis, C. J., Hardingham v. Allen, 5 C. B. 797. PLEADING AND EVIDENCE FOR THE PLAINTIFF. 157 and demanded his Horse. The defendant's clerk told him he could not have it unless he complied with the Rules and paid the 1/. 7s. The plaintiff then went away, leaving the I9s. 6cL on the desk. The plaintiff brought an action of Debt for Money had and received, with a count in Detinue for the Horse. It was held b}" the Court of Common Pleas, that as the Horse was sold subject to certain conditions, the sum received by the defendant on the sale, was not Money had and received to the use of the plaintiff, until those conditions had been complied with, and the time for returning the Horse had elapsed. Also that the evidence did not support a Tender, inasmuch as there was no specific appropriation of any part of the 195. Qd. to the 105. claimed in respect of the trial of the Horse (w). Where the Promise or Warranty has been made by Proof of the word of mouth, the plaintiff or some party who heard it ^ya™amv^ given must be called to prove it. Where the Promise or Warranty is to be gatheied from letters which passed between the parties, or was formally made in writing, and this in the case of a Warranty is usually contained in the same instrument as the Receipt, they should be pat in and read. The buyer may give evidence of a Warranty, although A Warranty in a note of the sale and receipt for the money, given by pt coi^amed the seller after the conclusion of a parol contract, there be ceipt. contained no notice of any Warranty. Thus the defend- ant sold his Horse at Aldridge's Repository, and said at the time of sale that if he did not work well, and go quietly in harness, the plaintiff was to send him back, and he should have his money returned. The plaintiff bought him and received the following memorandum: — " Bought of G. Pink a Horse for the sum of 11. 2s. 6d. G. PlNK.^' The Horse when put into harness was found to be un- ruly and vicious, and was accordingly returned to the de- fendant. The price was demanded back, and on its being refused an action was brought to recover it. It was held by the Court of Exchequer, that parol evidence might notwithstanding be given of the Warranty (o). But a Warrant}^ contained in a Receipt is not alM'ays Warranty in conclusive evidence that a Warranty has been 2-iven. a Receipt not '' ^ always con- clusive, (w) Hardingham v. Allen, (o) Allen v. Pink, 4 M. & 5 C. B. 796. W. 140. 158 CONTRACTS CONCERNING HORSES, &C. Written Warranty re- quires no Agreement Stamp. Where au- thority to ■warrant need not be proved. WTiere au- thority to •warrant must he proved. Proof of a power to Re- scind. For where some hours after bargain the defendant sent his coachman to pay the plaintiff the money, and the coachman drew out the following Receipt, which was signed by the plaintiff, an illiterate man, " Received lOZ. for a Colt warranted sound ;" it was held to have been properly left to the Jury to find whether the Warranty of the Colt formed any part of the bargain, or was inserted in the Receipt without authoritj'^, by an afterthought of the defendant's Servant (p). It is not necessary that a written Warranty should have an Agreement Stamp. This was so decided in the following case, where the plaintiff gave in evidence a written instrument signed by the defendant, which had a Receipt Stamp, and contained a Receipt for the price of the Horse, Avith the words subjoined, " warranted sound." It was objected that it could not be read in evidence for the purpose of proving the Warranty without an Agree- ment Stamp. But on the authority of Mr. Justice Law- rence, in Broicne y . Frye {q), Lord Ellenborough held that such a Receipt might be received to prove the War- ranty, as well as the Payment of the Pi-ice of the Horse, with a Receipt Stamp only (r) ; and a Warranty comes within the exception in the schedule of 55 Geo. 3, c. 184, as it is an Agreement rtdating to the Sale of Goods, Wares and Merchandizes. Where a Servant employed to sell and receive the price has given the Warranty, it is enough to prove that it was given by him, without calling him or showing that he had any special authority for that purpose (s). But the Warranty of a person merely entrusted to deliver a Horse, is not prima facie binding on the Prin- cipal, but an express authority must be proved {t). So also where an Agent makes an alteration in a Warranty given by his Principal, a special or general authoritj'" must be shown {u). Where a power to Rescind is one of the terms of a verbal Contract for a Horse, some witness to the trans- {p) Fairmaner v. Budd, 7 Bing. 575. (q) Browne v. Fnje, cited in Skrine v. Elmore, 2 Camp. 407. (r) Skrine v. Elmore, 2 Camp. 407. (s) Alexander v. Gibson, 3 Camp. 555. (t) fVoodin V. Burford, 2 C. &M. 391; S. C. 4fyiw. 264. (u) Strode w.Dijson, 1 Smith, 400. PLEADING AND EVIDENCE FOR THE PLAINTIFF. 159 action must be called to prove it(x). Where however there is a written Contract, and such power appears as one of the terms, it is proved by putting in the docu- ment ; but if it do not so appear, or if it were given in a subsequent conversation, it is inoperative, and the original Contract as proved still remains open(?/). We have seen in the Seventh Chapter what constitutes Proof of a Fraudulent Representation, so as to support an action Fraudulent on the Case. And it may be laid down as a Rule, with tiom^^^" ^ regard to the proof of the Scienter or Fraud, that where Representation is false to the hiowledge of the party making it, this is in general conclusive evidence of Fraud (z). Where the Breach of Warranty («) is Unsoundness, Proof of the the plaintiff must prove either an actual existence of Breach of Unsoundness at the time of Sale, or that from the appear- ^^^^" ^' ance of the Horse afterwards he must have been Unsound when sold. This however must be satisfactorily proved, because a mere suspicion that the Horse was then Un- sound is not sufficient (^^, Where the Breach of War- ranty is Vice, the plaintiff must prove the existence at the time of sale of such a bad habit as in the ej'e of the law constitutes a Vice{c). And where a Horse is war- ranted fit for some particular purpose, he must be proved to have been unfit for it in ordinary hands {d). It is not necessary that the plaintiff should inform the Notice of the defendant of the nature of the Unsoundness, and he may ^^^^ur^ oj the refuse to do so if applied to before the trial ; and the ness. Court of Common Pleas held that if the defendant wishes to ascertain the nature of the Unsoundness, he should take out a summons for that purpose ie). As there are a variety of particular causes of Unsound- Evidence as ness if), the proof of it will vary accordmg to the cir- ^o Unsound- cumstances of the case. "^^^' (.r) As to Unfitness, see {b) Eaves v. Dixon, 2Ta.\xnt. Breach of Warranty, ante, 343. Chap. 8. (c) Scholefield v. Robb, 2 {ij) Payne v. Whale, 7 East, M. & Rob. 210. 274. (J) Geddes v. Pennington, 5 (x) In theExchequerCham- Dow. 164. bar, Ormrod V. Hiith, 14 M. & (e) Atterbury v. Fairman- W. 664. ner, 8 Moore, 33. (a) See Breach of War- (/) See Unsoundness and ranty, ante. Chap. 8. Vice, ante. Chap. 4. 160 Matter of Fact alone. Either Fact or Veterinary opinion. Both Fact and Veteri- nary opinion, Veterinary opinion alone. Evidence as to Vice. Evidence as to Unfitness. Proof of Re- scision. Proof of Tender. CONTRACTS CONCERNING HORSES, &C. There are some cases which merely depend upon Evi- dence as to a certain Fact ; for instance, a Horse after sale is discovered to be Lame from a Curb (A), and a person giving his Evidence on the part of the plaintiff, must actually have seen the Curb, either before or at the time of Sale. Other cases may be proved either by Evidence as to a certain Fact, or by Veterinary opinion. As where the Buyer discovers a Spavin (i) after Sale, he must either prove its existence before or at the time of Sale by some one who had then actually seen it, or he must produce Veterinary testimony to show that from its present ap- pearance it must have then existed. Other cases, again, may be compounded both o^ Fact and Veterinai'y opinion] as where a Horse has a Splint(A) and is Lame, the question is whether the present Lame- ness (Z ) proceeds from the Splint, and if it does, whether the Splint actually existed or must have existed before or at the time of Sale. Or a pure question of Veterinary opinion may arise, as where there is a dispute whether a Horse is Spavined (z) or not; or where the natural appearance of a Horse's Hock, is altered, and it is doubtful whether it is merely a Capped Hock {m), or a material alteration in the struc- ture of the Hock joint. The proof of an alleged Vice {n) may depend upon Evidence of the Fact of its having existed before or at the time of Sale ; or upon proof of the existence of a cer- tain habit before or at that time, and then upon Veteri- nary opinion as to the effect of it. The Unfitness (o) for the purpose for which the Horse was bought must be clearly proved ; as, for instance, where a Horse has been warranted to be a " thorough- broke Gig Horse," the Jury must be satisfied that a per- son of ordinary skill cannot safely drive him {o). To prove a JRescision, the plaintiff must either prove that the defendant accepted the Horse when tendered, or he must show a Rescision by mutual agreement. The plaintiff may prove a Tender by showing that he sent the Horse back to the defendant, who refused to {h) Curb, ante, (i) Spavin, ante, (k) Splint, ajite. (l) Lameness, ante, (m) Capped Hocks, ante. (n) See Unsoundness and Vice, ante, Chap, 4. (o) Geddes v. Pennington, 5 DoA-. 164. PLEADING AND EVIDENCE FOR THE DEFENDANT. 161 accept it (p) ; or that be sent the Horse to Livery, and informed the defendant that he had done %o(q). PLEADING AND ETIDENCE FOR THE DEFENDANT. In every species of actions on contracts, the de- what must fendant miist specially plead Payment, Tender, Set-off, be specially &c. and all matters in Confession and avoidance, in- P ^^ ^ • eluding not only those by way of discharge, but those which show the transaction to be either void or voidable in point of law, on the ground of Fraud or otherwise (r) ; also the non-performance of any condition precedent he may intend to contest (s). In any action on the Case, all matters in confession and avoidance must be specially pleaded as in actions on contracts ; so also any defence beyond the mere denial of the alleged wrongful act(^). In an action for Goods bargained and sold, the de- Defence for fendant, under the plea Never was indebted, denies the gopds bar- Bargain and Sale in point of fact, and in an action of fold, and in Assumpsit for not accepting under the plea of Non as- Assumpsit sumpsit, or a plea traversing the contract or agreement cep^j^il^'^* alleged in the Declaration, he denies the express Con- tract or Promise alleged (it). Therefore the defendant may show tliat he never bought a Horse of the plaintiff at all, or that the Sale was invalid under the Statute of Frauds {x) ; or where he did not see the Horse before purchase, he may show that it does not correspond witli its description {y') ; or where it has been ordered for a particular purpose, for instance, to run in a carriage, he may show that it was unfit for that purpose (z). In an action of Assumpsit for not delivering a Horse, Defence in the defendant, under the plea of Non assumpsit, or a ^«*"'"/'j** , . ' , i ,, -' J ! , for not de- plea traversmg the contract or agreement aileged. m the uvering. Declaration, denies in fact the express Contract or Pro- mise alleged {u). Therefore he may show that he did not (p) See Towers v. Barrett, (t) Reg. Gen. T. T. 1853, 1 T. R. 138. r. 17. (q) Chesterman v. Lamb, 2 (m) Reg. Gen. T. T. 1853, A. & E. 129. r. 6. (r) Reg. Gen. T. T. 1853, {x) Johnson v. Dodgson, 2 r.^\ Buttermere\.Hmjes,^M. :M. & W. 653; EUiott v. &- W. 461. The Statute of Thomas, 3 ibid. 170; Butter- Set-off, 8 Geo. 2, c. 24, ap- viere v. Hayes, 5 ibid. 456. plies only where the debts be- (;/) See Stieet v. Blay, 2 B. tween the parties are mutual & Adol. 456 ; Parsons v. A^ex- legal debts; Ishergw. Bowclen, ton, 4 C. B. 905. 22 L. J. 322 (Exch.). {z) Chanter v. Hopkins, 4 {s) 15 & 16 Vict. c. 76, s. 57. M. & W. 406. 162 CONTRACTS CONCERNING HORSES, &C. Where evi- dence of the usage of trade is not admissible. Defence for Goods sold and de- livered. Defence to action on a Cheque for the price. Evidence in Reduction of Damages. buy a Horse of the plaintiff at all, or that the Sale was informal under the Statute of Frauds {z) . And where he contests it in his pleading, he may show that the plaintiff was not Heady and Willing to accept and receive it and pay the Price («). And Avhere no particular time has been specified for delivery'", he may show that the plaintiff never made any demand C^). Where there is no ambiguity in the language of a con- tract, evidence is not admissible to show that by the usage of the particular trade, persons selling under such con- tracts, are not bound to deliver the goods without pay- ment (c). Where an action is brought for the price of a Horse as Goods sold and delivered, the defendant, under the plea Never was indebted, may dispute the Sale and Delivery in point of fact(c?). Therefore he may show that the Sale was on credit which had not expired when the action was brought ie) ; that no absolute Sale took place ; that there was no Delivery at all {f) ; or that the Delivery was for the purpose of a reasonable trial, and that the Horse did not suit (g) ; or he may show that the Horse was j'e- turned on the ground of a Breach of Warranty, pursuant to an agreement embodied in the contract. If his defence is Dayment, of court^e it must be specially pleaded. So also must want of title (/^). Breach of warranty is no answer to an action on a Cheque for the Price ; but a fraudulent representation is(z). However, it is only reasonable and just that when an action is brought by the Seller to recover the Price or Value of a Horse or anj^ other goods, that the buyer should be at liberty to show the Breach of Warranty in JReduction of Damages {k). (2) Johnson v. Dodgson, 2 M. & W. 653; Elliott v. Thomas, 3 ibid. 170; Butter- mere V. Hayes, 5 ibid. 456. (a) Rawson v. Johnson, 1 East, 203. (h) Bach v. Oiven, 5 T. R. 410. (c) Spar tali v. Bevecle, 10 C. B. 212. {d) Reg. Gen. T. T. 1853, r. 6. (e) Broomfield v. Smith, 1 M. & W. 542 ; Webb v. Fair • manner, 3 M. & W. 473 ; and see Paul v. Dod, 2 C. B. 800. (/) See Smith w.Rolt, 9 C. & P. 696. (g) Street v. Blai/, 2 B. & Adol. 456 ; Moss v. Sweet, 16 Q. B. 493. (h) Walker v. 3fellor, 11 Q. B. 478. (i) Lewis v. Cosgreave, 2 Taunt 2. (/f) Ponlton V. Lattimore, 9 PLEADING AND EVIDENCE FOR THE DEFENDANT. 163 And Mliere a Horse is bought warranted sound, and Defence for part of tlie Price is paid, and on turning out unsound, he R*^sidueof is found to be worth no more than that sura, it is a good defence to an action for the residue. Tlius in the follow- ing case, it appeared that the plaintiff sold to the defend- ant a Horse, warranted sound, for twelve guineas, of which the defendant had paid three. In fact, the Horse was not sound ; and the defendant refusing to pay any- more, an action was brought to recover the Residue of the Horse's Price. It was proved that the Horse, at the time of sale to the defendant, was not worth more than 11. lis. 6d., and the defendant afterwards sold it for 11. 10s. On these facts Lord Kenyon held that the plain- tiff could only recover the value ; and more having been paid to him by the defendant, he was nonsuited (I). Where an action is brought to recover back the Price Defence for paid for a Horse on failure of consideration, as Money ^loneyhad had and received, the defendant under the plea Never ' zvas indebted may dispute both the Receipt of the money, and also the existence of those facts which make such receipt by him a receipt to the use of the plaintiff (wz). Therefore he may show that he never received the Price, or that he never ivarranted, or that there was no Breach of Warranty, or that there was no JRescision of the con- tract, or that there was no power to rescind, or no Ten- der of the Horse, or that being sold on trial, it was kept longer than was necessary for such trial {ii). The defendant in an action of Assumpsit on a Breach Defence to of Warranty may under the plea oi Non-assumpsit or a ^""J";""! on plea traversing the contract or agreement alleged in the Warranty, declaration, disprove the fact of the Warranty having been given upon the alleged Consideration, but not the Breach (o). If, however, it be traversed, he may show that at the ti7ne of Sale the Horse answered his Warranty, whether it were Soundness, Freedom from Vice, Fitness for a Particular Purpose, Sfc. (p), B. & C. 265 ; Mondel v. Steel, (n) Street v. Blay, 2 B. & 8 M. & W. 858 ', S. a 1 D. Adol. 456 ; and see Daioso7i N. S. 8 ; Parsons v. Sexton, 4 v. Collis, 10 C. B. 532. C. B. 908 ; S. C. 16 L. J. (o) Reg. Gen. T. T. 1853, 184. (C. P.) r. 6; Smith v. Parsons, 8 C. & (0 King V. Boston, cited 7 P. 199. East, 481. (p) See evidence as to Un- (?«) Reg. Gen. T. T. 1853, soundness, Vice and Unfit- r. 6. ness, ante. 164 CONTRACTS CONCERNING HORSES, &C. Surreptitious The defendant may prove that the Warranty was added "Warranty. ^q ^]^g form of Receipt unknown to him. Thus in an action brought on the Warranty of a Horse, the Jury gave a verdict for the defendant, being of opinion that the Warranty had been surreptitiously introduced into the Receipt by the plaintiff before it was signed by the defendant. And Mr. Baron Piatt said, that if the Jury had been of opinion that the words were added afterwards by the plaintiff, it would have been his duty to have im- pounded the Receipt for ulterior purposes ('5'). Condition Where the defendant relies on a Condition annexed to annexed to a g^ Warranty according to a Notice of certain Rules of Sale, it appears that unless the matter relating to the Notice has been by way of Proviso upon the Warranty, such defence must be pleaded specially. Thus in an ac- tion of Assumjjsit on a Breach of Warrant}^, the Decla- ration stated that, in consideration that the plaintiff would buy of the defendant a Mare at a certain price, the defendant promised that she was sound. The de- fendant pleaded, among other pleas, that the Mare was sent to Lucas's Repository, to be sold according to cer- tain Rules, which were as follows : " Terms of private sale. A Warranty of Soundness, when given at this Re- pository, will remain in force until twelve o'clock at noon of the day next after the daj"^ of sale, when it will be complete, and the responsibility of the Seller will ter- minate, unless in the meantime a Notice of the contrary, accompanied by the Certificate of a Veterinary Surgeon, be delivered at the office of R. Lucas ; such Certificate to set forth the cause, nature or description of any alleged unsoundness ;" that the Sale took place subject to those Rules, and that no Notice was delivered within t]ie time specified. Mr. Baron Parke said, " It appears to me that such plea is not bad as amounting to the General issue. It admits the Contract and the Promise, but shov.'s it to have been made subject to certain Rules, which have not been complied with. What is the mean- ing of those terms ? It seems to me to be this, that the Warranty shall be deemed to have been complied with, unless a Notice and Certificate shall be delivered to the Vendor before twelve o'clock at noon of the day next after the day of sale. That is not a denial of the War- {q) Bliss v. Snow, before Mr. Baron Piatt, Exch. N. P. May 12, 1853. PLEADING AND EVIDENCE FOB, THE DEFENDANT. 165 ranty, but of a mere Condition annexed to it. No Notice and Certificate were delivered, and therefore the Contract is to be considered as complied with. If the matter re- lating to the Notice had been by way of Proviso upon the Warranty, it might perhaps Imve been necessaiy to state it in the Declaration ; but upon that point I give no opinion. It is enough to say that every word of this plea is consistent with the Contract stated in the Decla- ration.'^ And Mr. Baron Alderson said, "The meaning of the plea is, that there was a sort of conventional WaiTanty of Soundness, and that the Warranty was to be considered as complied with, unless a Notice and Certificate of Un- soundness were given within a certain time, which was not done. That is not a denial of the Contract, as alleged in the Declaration." And in this opinion Barons Gurney and Rolfe concurred (r). Where an action is brought on a Breach of a War- Evidence in ranty of Soundness, the subsequent Recovery of the oama^^es" °^ Horse may be proved in Reduction of Damages. Evi- dence may also be given as to the slightness of the dis- ease ; because of course, if the disease be slight, the Un- soundness is proportionably so, and so also ought to be the Damages ; and if they were very inconsiderable, the Judge might certify under the statute of Elizabeth (s) to deprive the plaintiff of costs {t). In an action on the Case for a False Warranty, the de- Defence to fendant, under the plea of Not Guilty, denies the com- p^is/^y^r mission of the Wrongful act alleged, namely, the Sale ranty. by means of the False Warranty (u). Thus where the Horse is alleged to be Unsound, he may dispute the Warra?ity and Unsoundness; in fact, all the Declara- tion, except the Inducement {x), unless it have been tra- versed. In an action on the Case for Fraudulent Representation Defence in on the Sale of a Horse, the defendant, under the plea of praudu^i^nt Not Guilty, denies the Wrongful act alleged, namely, Representa- the Sale by means of the Fraudulent Representation (y). *i°"- (/•) Sniart Y. Hyde, S ^L & r. 16; Mummery v. Paul, 1 W. 723, 728. C. B. 327 ; Card v. Case, 5 (s) 43 Eliz. c. 6, s. 2. C. B. 632. (t) Kiddell v. Burnard, 9 (x) Spencer v. Dawson, 1 M. & W. 670. See Dawson M. & Rob. 552. V. Collis, 10 C. B. 532. {y) See Ormrod v. Huth, 14 (u) Reg. Gen. T. T. 1853, M. & W. QQ^. 166 CONTRACTS CONCERNING HORSES, &C. Disputing the War- ranty. Disputing the Unsound- ness, &c. Subsequent Recovery. Competency of witnesses. Therefore he may show that he never made any Repre- sentation on the sale ; or that the Representation was honestly made and believed by him at the time, though not true in point of fact ; or that the Horse at the time of sale corresponded with the Representation. He may also dispute the Inducement if he traverse it. The defendant may show that he is not bound b}'^ the Warranty (z), as where it has been given by a person merely entrusted to deliver the Horse {a), or by a Servant after Sale (5). And where the defendant is neither a Horsedealer nor Stahlelieeper he may prove that the Warranty was given by an Agent who was expressly /br- Md to warrant (c), and that in consequence he had oft'ered to take back the Horse. The defendant may show that the Horse at the time of sale was Sound, or free from Vice, or that the defect was Patent at the time of Sale. And this will depend upon the same sort of evidence as we have before described {d). The defendant may also show that the Horse was not unfit for the purpose for which he was bought ; for in- stance, that he has answered his Warranty when used by persons oi ordinary skill (e). But where a Horse is proved to have had a Disease at the time of sale, his subsequent recovery is no defence to an action on a Breach of WaiTanty, because where a Horse is warranted it is to be presumed he is fit for im- mediate use(jf ). There was formerly a difference of opinion as to the competency of a Witness, on the ground of interest. Thus it was at one time held, that the former owner of a Horse, which he had sold with a "NA'arranty to the defendant, was a competent witness for him to prove that the Horse when so sold was Sound (^). And in a later case, Mr. Justice Alderson considered such a witness incompetent, (2) See Warranty, Chap. 5, ante. (a) Woodin v. Biirford, 2 Cr. & M. 391 ; S. C. ^ Tyrw. 264. {h) Helyer v. Hawke, 5 Esp. 72. (e) Feiin v. Harrison, 3 T. R. 761 ; and Scotland (Bank) V. Watson, 1 Dow. 45. (d) Evidence as to Un- soundness, ante ; Patent De- fects, Chap. 5, ante. (e) Geddes v. Penningtoii, 5 Dow, 164. (/) Coates v. Stephens, 2 M. & Rob. 157. (g) Briggs v. Crick, 5 Esp. 99 ; Baldwin v. Dixon, 1 M. 6 Rob. 59 PLEADI^;G AND EVIDENCE FOR THE DEFENDANT. 167 on tlie ground that the effect of a verdict for the defend- ant would be to relieve the witness from an action (h). NoWj however, by the late acts of Victoria (i), no per- The late son is to be excluded, and the plaintiff or defendant, or the '^'^^^■ husband or wife of each or either, are competent witnesses. DAMAGES. The Damages which necessarily, and by implication General of laic, ensue from the nonperformance of the Contract, ^^^niages. or the commission of the Wrongful act, need not be ex- pressly detailed, and are recoverable under the common conclusion of the Declaration (k). But Damages which really took place, but do 7iot ne- Special cessarily arise from the nonperformance of the Contract, Damages. or the commission of the Wrongful act, and are not im- plied by law, must be expressly stated in the Declaration; so that the defendant may be prepared to dispute the facts. And it has been held that they must be the legal and natural consequences of the Breach of Contract, or of the Injury which has been inflicted (Z). In an action for the recovery of a fixed pecuniary'- de- In actions for mand, which the defendant has not shown grounds for ^ ?^™ *^^^- reducing, by proving a partial failure of Consideration, it is obviously in general the duty of the Jury to give the plaintiff neither more nor less than the sum specified (7?2). However, by 3 & 4 AVill. 4, c. 42, s. 28, it is enacted, interest. " that upon all debts or sums certain, payable at a certain time or otherwise, the Jury on the trial of any issue, or on an 5^ inquisition of Damages, may, if they shall think fit, allow Interest to the creditor, at a rate not exceeding the current rates of Interest, from the time w^hen such debts or sums certain were payable if such debts or sums be payable by virtue of some written instrument at a certain time; or if payable otherwise, then from the time when demand of payment shaU have been made in ivriting, so as such demand shall give Notice to the debtor, that Interest will be claimed from the date of such de- {li) Biss v. Mountain, 1 M. 9 B. & C. 152 ; and Chit. & Rob. 302. jun. Contr. 4th ed. 771. (i) See 6 & 7 Vict. c. 85, (/) See 1 Chit. Pleading, Appendix; 14 & 15 Vict c. 6th ed, 395; also Vicars v. 99, Appendix ; 16 & 17 Vict. Wilcochs, 8 East, 3. c. 83, Appendix. {m) Chit. jun. Contr. 4th {k) See Boorman v. Nash, ed. 558, 764. 168 CONTRACTS CONCERNING HORSES, &C. In Actions which sound in Damages. A Foolish bargain. An impos- sible con- tract. mand until the term of payment : provided that Interest shall be payable in all cases in which it is now payable by law." This provision does not extend to special ac- tions on Contracts, strictly for the recovery of unliqui- dated Damages resulting from the Breach of sucli Con- tracts, and ascertainable only by a Jury. For instance, actions oi Assumjjsit for not Delivering goods, &c. {n). But in all actions which sound in Damages, the Jury seem to have a discretionary power of giving what Da- mages they think proper ; for though in contracts the very sum specified and agreed upon is usually given, yet, if there be any circumstances of hardship or extreme folly, though not sufficient to invalidate the contract, the Jury may consider them, and proportion and mitigate the Da- mages accordingly. Thus, where an action was brought on a promise of 1,000Z. if the plaintiff should find the defendant's Owl ; the Court held, though the promise was proved, that the Jury might mitigate the Damages (o). And where an action was brought in ^ec\2i\ Assumpsit, on an agreement to pay for a Horse a barley corn a nail, doubling it for every nail in the Horse's slioes ; there were thirty-two nails, and this being doubled, every nail in a geon'.etrical progression, came to five hundred quarters of barley ; and on the cause being tried before Mr. Justice Hyde at Hereford, the Jury, under his di- rection, gave the real value of the Horse, 8Z. as Damages ; and this Contract seems to have been held valid ; for it appears by the report that there v/as afterwards a motion to the Court in arrest of Judgment, for a small fault in the Declaration, which was overruled, and the plaintiff had Judgment (p). And where in consideration of 2s. 6c?. paid do^vn, and 4Z. \ls. 6d. to be paid at the end of the year, the de- fendant agreed to deliver two grains of rye on the then next Monday, and double in geometrical progression every succeeding Monday for a year, which it was stated would have amounted to a larger quantity of rye than existed in the whole world, the Court on demurrer seemed to consider the Contract good in law ; and Mr. Justice Powell said, " that although the Contract was a foolish (n) Chit. jun. Contr. 4th ed. 558. (o) Bac.Abr. Damages (D), 602. (p) James v. Morgan, 1 Lev. Ill; S. a 1 Keb. 569; and Chit. jun. Contr. 4th. ed. 30. DAMAGES. 169 one, yet it would hold good in law, and that the de^- fendant ought to pay something for his folly ;" upon which the defendant agreed to return the plaintiff his half crown and pay the costs, and so the case was com- promised {q). The Jury cannot give higher Damages than the amount Cannot be laid in the declaration; and if judgment be entered for the JV^^^'" *^^" excess it is error (?•). But where the Jury find greater laid. Damages than the amount laid, the Court may, to pre- vent error, give judgment for so much as is stated in the declaration, nidlo habito respectu to the rest (s): or the plaintiff may enter a remittitur of the surplus before judg- ment (^), or he may amend his declaration and have a new trial {u). The Damages in an action for the price of a Horse as in Goods Goods bargained and sold, will be the whole sum, and ^ai,gained not merely damages for not accepting and paying for it. In an action for not accepting a Horse, the measure of in Assumpsit damao;es is the difference between the contract price and ^°^ ""* ^^' the market price, on the day when the vendor ought to "' have received him [x). In an action for not delivering a Horse according to in Assumpsit a contract, the Damages over and above what is laid ffj "f^ ^^' • 11 -n 1 1 T /y 1 • liveiing. specially, will be the difference between the price at which the Horse was bought, and his value at the time he ought to have been delivered (y) ; even though the vendor in the interim have resold the Horse, provided that the vendee did not assent to rescind the contract (2^). In an action for the Price as Goods sold and delivered, in Goods sold the Damages will be the Price or value of the Horse. ?:"*^ ^^' "Where an action for Money had and received is brought for Repayment of the Price, and there is a count for hadanT^ Horsemeat and Stabling, the measure of Damages is the ceived. {q) Thornhorowv. Whitacre, v. Crump, 2 B. & B. 300, 307 ; 2 Ld. Raym. 1164. S. C. 7 Moore, 137. (r) Chevely v. Morris, 2 (x) Phillpotts Y.Evans, 5 M. Bla. R, 1300. & W. 475 ; Boor man v. Nash, (s) Bac. Abr. Damages, 9 B. & C. 145. (D), 604. (y) Gainsford v. Caroll, 2 (0 Perceval v. Spencer, B. & C. 624 ; ^. C. 4 D. & Yelv. 45 ; Wraij v. Lister, 2 R. 161. Stra. 1110, 1171. {z) Lee v. Paterson, 8 («) Tidd, 9th ed. 896, and Taunt. 540; S. C. 2 Moore, note (A-) ; Chit. jun. Contr. 588. 4th ed. 771 ; and see Dunn re- 170 CONTRACTS CONCERNING HORSES, &C. In Trover. On Breach of Warranty. Where the Horse has not been ten- dered. Where the Horse has been ten- dered. Expense of keep. Price paid for the Horse ; and also the Expense of Keep from the day of Sale, as the Contract must be taken to have been rescinded from the day it was entered into (a). And as to the Recovery of Interest on the Price paid, see 3 & 4 Will. 4, c. 42, s. 28, by which Statute a demand in writing and Notice of such claim is necessary (h). In the ordinary case of Trover for a Horse, the plaintiff recovers the value of the Horse, and not what the Horse might have earned besides (c). The Damages in the case of a Breach of Warranty must be treated in the same way as an action on a Con-- tract (d). Where the Horse has not been returned, the measure of Damages is the difference between his real Value and the Plaice givek ; because immediately the Warranty has been broken, the buyer may sell the Horse for what he can get, and recover the residue in Damages (e). But after a Breach of Warranty, the buyer is entitled to recover a reasonable sum of money for the Expense of Keep, where before re-sale he has tendered the Horse to the seller ; and the buyer is entitled to keep the Horse for such reasonable time as is required to sell him to the best advantage (/"). What length of time and sum of money is reasonable for the keep is a question for the Jury(^). The whole subject of Keep was fully considered in the case of Chesterman v. Lamb ( g), where an action of Assumpsit was brought on the Warranty of a Horse, and also for the Expense of his keep. It appeared at the trial that the defendant sold and delivered the Horse to the plaintiff on the 28th of June. Early in July the Horse was found to be lame ; and on the 10th, upon ex- amination by a Veterinary Surgeon, the complaint was found to be Spavin (/i). On the lltli of July the plaintiff gave the defendant Notice that the Horse was Unsound, and that he should return him and demand back the (a) Caswell v. Coare, 1 Taunt 5QQ ; King v. Price, 2 Chit. 416. (6) See Interest, ante. (c) Per Jervis, C. J., Read v. Fairbanks, 22 L. J. 206. (C. P.) {d) PerTindal, C.J., Wat- son V. Denton, 7 C. & P. 90. (e) Caswell v. Coare, 1 Taunt. 5QQ. (/) M'Kenzie v. Hancock, R. & M. 436. (g) Chesterman v. Lamb, 2 A. & E. 129. (h) Spavin, ante. DAMAGES. 171 purchase money ; and on the 21st the plaintiff sent the Horse to Liver j^, and informed the defendant that he had done so. On the 27th the action was commenced ; and on the 16th of September, the plaintiif (having informed the defendant of his intention to do so) sold the Horse by auction for twenty-three guineas. The action was brought to recover the difference between that sum and 401., the price given bj^the plaintiff, and likewise 9/. 175. for the Horse's keep at Livery till the second sale. For the defendant it was insisted that the Horse was not L'nsound, and consequently that nothing was due on account either of the Price or the keep. Mr. Justice Taunton in leaving the case to the Jury said, " that in his opinion there had been a sufficient Tender x)f the Horse back to the defendant ; that if the Horse was Unsound, it was the defendant's duty to pro- vide for the charges of standing at Livery ; and there- fore the plaintiff, in that case, would be entitled to the 91. 17 s. claimed for Keep." The Jury found a verdict for the plaintiff for the whole sum demanded. A rule was obtained to show cause why there should not be a new trial, or why the verdict should not be reduced in respect of the Keep; the rule, however, was discharged. And Lord Denman, C. J., said, " I can conceive no Seller liable case where a purchaser returns a Horse, in which the a^^J Keep' seller may not be liable for some Keep. The law upon the subject is thus laid down in Mr. Selwyn's Law of Nisi Prius (h). As soon as the Unsoundness is discovered, the buyer should immediately tender the Horse to the seller; and, if he refuses to take him back, sell the Horse as soon as possible for the best price that can be procured ; for the purchaser is entitled to recover for the keep of the Horse for such time only as would be required to resell the Horse to the best advantage." " AYhether the time of keeping be reasonable or not, is a What is question for the Jury. But here the defendant altogether reasonable, denied his liability. It is true that counsel would have been under a disadvantage in resting the case on two different grounds : but that consideration cannot vary the course which must be pursued in trying a cause. If the defendant's counsel meant to rely upon the unreasonable- ness of the time, he should have shown grounds for in- (A") Selwyn's N. P. 8th ed. vol. 1, p. 657, tit. Deceit, L 2. I2 172 CONTRACTS CONCERNING HORSES, &C. sisting- on that point, and taken the opinion of the Jury upon it(Z)." Keeping the In the following case, where an action of Assumpsit Horse till -yyj^g brought on the Wan-anty of a Horse, it appeared that the plaintiff had tendered back the Horse to the defendant, and on his refusal to receive it, had kept it nearly eight weeks at Livery at Reading, till Reading Fair, when it was sold. The plaintiff sought to recover the difference between the price which he had given for the Horse and the sum for which he was sold, and also the expense of his standing at Livery. Mr. Justice Coleridge, in summing up, said to the Jury, " With respect to the Keep of the Horse, I am of opinion that if a person has bought a Horse with a Warranty, which has been broken, and he tenders the Horse to the seller, and the seller refuse to receive it back, the buyer is entitled to keep it a reasonable time till he can sell it, and for that time he may, against the seller, recover the expense of keeping it ; but he must not keep it as long as he chooses. All that he 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. If it was a good thing for the sale of the Horse to keep it till Read- ing Fair, you will find your verdict for the amount claimed ; but if you think the Horse ought to have been sold within a week or a fortnight, or some other short time, you will deduct so much of the claim as goes be- yond the time." The Jury gave the plaintiff a verdict ^ for the whole amount (?w). ^ '^^xpense In the case of Cox v. Walke?'{n), where an action was bonsequent brouffht for a Breach of the AA'arranty of a Horse sold on tiic Wsr- ^ • ranty. as sound, the special damage alleged in the Declaration was the plaintiff's expense incurred by reason of the Warranty, and his loss of gains and profits in reselling the Horse ; and the only plea was a denial of the Un- soundness. It appeared that the plaintiff had bought the Horse of the defendant for lOOZ., and had been offered 140Z. for him, but the Horse proving Unsound, the plaintiff had been obliged to give up the bargain, and seU him for 49Z. 7s. Lord Denman, C. J., directed the {I) Chesterman v. Lamb, 2 (n) Cox v. Walker, cited Tpef A. & E. 129. Lord Denman, C. J., in Clare (m) Ellis V. Chinnock, 7 C. v. Maynard, 6 A. & E. 523. & P. 169. DAJIAGES. 173 Jury that the plaintiff was entitled to recover the differ- ence between the Price at which he was finally sold, and the actual Value of the Horse if he had been sound at the time of such sale ; and he left to the consideration of the Jury as a measure of the value, the Price offered for the Horse whilst in the plaintiff's hands. The Jury found for the plaintiff 90Z. 13s. damages. A rule nisi was ob- tained for a new trial on the ground of misdirection, or for a reduction of damages. Cause was shown in Easter Term, 1836, before Lord Denman, C. J., and Littledale, Patteson, and Coleridge, J.'s. The Court took time to consider, and the case stood over for several terms, but was at length settled. And in another case, where the Horse had been ten- Expense in dered to the defendant and refused, Chief Justice Tindal ^^I'l"?- in charging the Jury 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 by the defendant selling him that wliich was of no use to him, for a certain time, at least to the time when he offered the Horse to the defendant (o)." The increase in value consequent on the care and ex- Expenses in pense bestowed on a Horse after purchase, and evidenced advancing by an advance of price on a resale, might probably be vaiue.^'^^^ ^ recovered, if the cause of such increase were properly laid as special damage. Because, although the Court of Queen's Bench thought it unnecessary to give their opinion in Clare v. Mai/nard (p), as that point did not there properly arise ; yet Lord Denman, C. J., appeared to hold that if it had arisen, he should have directed the Jury as he did in the case of Cox v. Walker (q), and then the measure of Damages would be the difference between the Price ultimately obtained for him, and his actual Value if he had been sound at the time of such last resale (/?). And where a Horse had been bought in the country, Horse ten- and brought up to London, and after it was discovered ^ered and to be Unsound was tendered to the seller, and then sold Au^tion*^ ^^ by auction. Lord Denman, C. J., told the Jury that the measure of Damages was the difference between the (o) Watson v. Denton, 7 C & E. 523. & P. 91. iq) Cox \. Walker, cited {p) Clare v. Maynard, 6 A. ibid. 174 Expense of Veterinary Certificate and Coun- sel's opinion. Travelling Expenses. Loss of a good Bar- gain. Reselling with a War- ranty. CONTRACTS CONCERNING HORSES, &C. Value of the Horse, if Sound (of which the price was only strong evidence), and the Sum it brought as Un- sound (r). That the bu5'er could not recover the expenses of ob- taining a Certificate of Unsoundness from the Veterinary- College or of Counsel's opinion, as they were no part of the necessary expenses, but were merely for the plaintiff's own comfort, and to convince him that he could bring an action in safety (r). But that he was entitled to be paid the expenses of bringing the Horse up to London^ and of its Keep(7'). A person who has bought a Horse warranted sound, and has had it returned to him after resale at a profit, cannot in an action on the AYarranty recover Damages for the '' Loss of a good bargain (s) ;" and on this ground the Court of Queen's Bench gave their decision in Clare V. Maynard^t), because the Declaration there merely alleged that the plaintifl' bought the Horse at so much, and resold him at so much, without alleging the cause of the advance, or averring that he had laid out any money on the Horse in the meantime. And it was held, in that case, that although the conti-act of sale at a profit had been actually completed before the unsoundness was dis- covered, yet the plaintiff could not recover as special Damage the advance in value, which, as stated in the Declaration, was the mere loss of a good bargain (w). If the buyer of a Horse Avith a Warranty, relying thereon, resells him with a Warranty, and being sued thereon by his vendee, offers the defence to the vendor, who gives no directions as to the action, the plaintiff defending that action is entitled to recover the costs of it from his vendor, as part of the damage occasioned by his breach of Warranty (x). But he cannot recover such costs if, by a reasonable examination, he could have dis- covered the breach of Wai-ranty before sale (y). (r) Clare v. Maynard, 7 C. & P. 741. (s) Flureau v. Thornhill, 2 W.BIa.1078; 1 Sug.Vendors, 9th ed. 235, and the cases there cited. {t) Clare v. Maijnard, 6 A. & E. 524; and see a form of Special Damage in such case given in Pearson's Chit. jun. on Pleading, 202. (u) Clare v. Maynard, 6 A. & E. 524. (x) Lewis y.Peake, 7 Taunt. 153 ; S. C.2 Marsh. 43. (y) Wrightup v. Chamber- lain, 7 Scott, 598 ; Chit. jun. Coiitr. 4th ed. 405, n. DAMAGES. 175 Of course if the Unsoundness be slight, so also ought Where the to be tlie Damages ; and if they be very inconsiderable, Damages are the Judge may certify under the statute of Elizabeth to ^^^^ ^™^^^' deprive the plaintiff of costs (z). (2) Per Parke, B., Kiddell v. Burnard, 9 M. & W. 670 ; 43 Eliz. c. 6, s. 2. 176 CONTRACTS CONCERNING HORSES, &C. CHAPTER X. INNKEEPERS, VETERINARY SURGEONS, FARRIERS, HORSEBREAKERS, TRAINERS, &C. Innkeeper. His Business 177 Definition of an Inn .... id. Derivation of Hostler . .. 178 Who is a Guest id. What an Innkeeper under- takes id. He must close during morning and afternoon Service on Sundays . . id. But not during evening Service id. Who is a " Traveller" .. id. Innkeeper compellable to receive a Traveller ... id. May be indicted for re- fusing 179 What has been held to he no Defence id. Sickness ^Drunkenness, 8fc. id. Action for Compensation . id. Not liable for refusing to supply Post Horses . id. Traveller not entitled to select particular Apart- ments id. Innkeeper' s Liability . . . id. Where a Guest's Horse is stolen 180 Where another Person's Horse is stolen id. Horse out at Grass by the Guest's Desire id. Horse out at Grass with- out the Guest's Desire . id. Where a Guest's Horse is injured 181 Presiimption of Negli- gence A Guest's Goods not dis- trainable Even where he is accom- modated out of the Inn Or uses a Stable pro- vided for the Occa- sion A reasonable Price must be charged for Keep . * Innkeeper has a Lien on a Horse for it Cannot detain a Guest for his Bill But may detain his Horse His Right of Lien Horses and Carriages sent to Livery at an Inn . - Cannot sell one Horse for the Keep of others .... Has a Lien on a Horse left by a Wrong -doer . But not if he knew it at the Time it was left . . A Horse left by the Police Giving a Guest Credit . . A Third Party when an- swerable Horse removed to defeat the Lien Innkeeper forbid to give more Food He cannot use a Horse he detains 181 id. id. id. 182 id. id. id. id. id. id. 183 id. id. id. id. id. 184 id. INNKEEPER. 177 He cannot sell a Horse he detains 184 It was once held other- wise 185 Distrainor may sell a Horse for his Keep .. id. Veterinary Surgeon AND Farrier. No Law peculiar to Vete- rinary Surgeons id. Certificate of Veterinary College id. Farrier cannot refuse to shoe a Horse 186 Jrhen brought at a rea- sonable Time id. Answerable for his own Want of Skill id. Where a third Person is affected id. Ulien answerable for his Servant id. Collins V. Rodway .... id. Rule as to Farriers . . 188 No Insurance against Injury id. Peculiar Difficulties should be mentioned . id. Coming at an unseason- able Hour 189 Parrying, Sfc, in the Street id. Horses standing to be shod not distrainable id. Farrier may recover for Work, labour and materials ujider a Ge- neral Count id. Horse may be detained for the Price of his Shoeing id. Such Lien is favoured by Law 190 Extends only to each particular time .... id. Liability to feed a Horse detained id. Horsebreaker, Trainer, &c. Horsebreaker liable for Damage id. Horsebreaker' s Lien .... 191 Trainer' s Lien id. A recent Decision on the Subject 192 Stallion-master has a Lien id. For work done on a Sun- day id. INNKEEPER. When a Horse is taken to an Inn, the Innkeeper has a His business. particular responsibility imposed npou him, in return for Avhich he has certain peculiar pri\'ileges. And. an Inn- keeper is a person who makes it his business to entertain travellers and passengers, and to provide lodging and necessaries for them and their Horses and attendants, and it is no way material whether he have any sign before his door (a\ The true definition of an Inn is, "a house where the Definition of traveller is furnished with every thing which he has oc- ^° ^"°' casion for whilst on his way (6)." (a) Palm. Rep. 345. 374: 2 Rol. (6) Per Bayley, J., Thomp- n v. Lacy, 3 B. & Aid. 286. I5 178 CONTRACTS CONCERNING HORSES, &C. Derivation of Hostier. Who is a Guest. What an Innkeeper undertakes. He must close during Sunday morning and afternoon service. But not during evening ser- vice. Who is a "Traveller." Innkeeper compellable to receive a Traveller. The word Hostler is derived ab hostle ; and the word Hospitator, which is used in the old writs for an Inn- holder, is derived ab hospitio ; and Hospes est quasi hos- pitium petens (c). A Guest is properly a lodger or stranger at an Inn ; and the word " Guesf is derived from the Saxon Gest, which had the same meaning as the French Gist or Gite, that is, " a stage of rest in a journey," "a. lodging (d)." And Lord Holt says, ''It is the lodging of the man at the Inn that makes him Guest (e)." An InnJieeper or Hotel-keeper undertakes to receive and entertain all travellers until his house is filled ; and an Innkeeper by opening a common Inn undertakes also to receive and keep the Horses of those who come to his Inn(/). Under 9 Geo. 4, c. 61, s. 21, an Innkeeper's licence prohibits him from keeping his house open, except for the reception of travellers, " during the usual hours of the morning and afternoon divine ser\dce in the parish church on Sunday." But where there is no afternoon ser^ace, but one in the evening at 6 p. m., the keeping the Inn open at that time for the reception of other persons than travellers, is not a violation of the above condition of the licence ig). A Traveller would appear to be a person who is bona fide on a journe5\ Therefore some men who had been driving about for pleasure in the neighbourhood of Lon- don, and had gone over fourteen or fifteen miles of ground, were held by Mr. Paynter, the Police Magis- trate at Hammersmith, not to be "travellers" within the Metropolitan Police Act {h), and he said he did not think tliat gentlemen merely taking a ride for pleasure could be considered "Travellers," for if he did, every gentleman taking a Sunday morning ride in Rotten Row might be considered a " Traveller" {i). It is said that an Innkeeper may be compelled by the (c) Calye^s case, 8 Coke, 32. {d) Westbrook v. Griffith, Mo. 876, 877 ; Saunders v. Plummer, Orl. Bridg. 227. (e) See Smith v. Dearlove, 6 C. B. 132, n. (/) Jones v. Osborn, 2 Chit. 484. ig) Res.\.Knapp, 21L.T. 138 (Q. B.); S. a 22 L. J. M. C. 139 (Q. B.) ; Reg. v. Buckinghamshire Justices, 17 Jur. 530 (Q. B.) (h) 2 & 3 Vict. c. 47, s. 42. (i) The Case of Thomas Wil- liams, Hammersmith Police Court, Nov. 5, 1853. INNKEEPER. 179 Constable of the Town to receive and entertain a Tra- veller as his Guest {k). If an Innkeeper who has room in his house refuse to May be in- receive a Traveller^ after a tender or an attempted tender ^"^ted for re- of a reasonable sum for his accommodation, he may be indicted for it, and the Indictment must state that the person refused was a Traveller (l). And it is no defence for the Innkeeper that the Guest What held to was travelling on a Sunday, and at an hour of the night ^^^l ^^' after the Innkeeper's family had gone to bed j or that the Guest refused to tell his name and abode, as the Inn- keeper had no right to insist upon knowing these par- ticulars (w). But although an Innkeeper cannot refuse a person who Sickness, is sick, he is not bound to receive a person who comes to ne^ss"&c!' the Inn drunk, or behaves in an indecent or improper manner {n). An action on the Case lies to recover compensation for Action for any injury in consequence of such refusal ; but, as it ap- t°o™^^"^^' pears, not for the mere refusal to receive the Traveller or his Horse (o). An Innkeeper, though licensed to let Post- Horses, is Not liable for not liable to an action for refusing to supply a Chaise and supp/y Post Horses to enable his Guest to pursue his journey, al- Horses, though they be disengaged and a reasonable sum be ten- dered for them (p). But although a Traveller is entitled to reasonable ac- Traveller not commodation in an Inn, he is not entitled to select a entitled to , ' ^ . . • ^ ^ select par- particular apartment, or to insist on occupying a bed- ticuiar apart- room for the purpose of sitting up all night, so long as ments. the Innkeeper is willing and otfers to furnish him with a proper room for that purposely'). An Innkeeper is prima facie liable for any loss not innkeeper's occasioned by the act of God or the King's enemies (r) ; liability. {k) 5 Ed. 4, 2 b ; Dalt 1 C. & K. 407 ; Lane v. Cot- cap. 7; 1 Show. 268. ton, 1 Salk. 18; Collin's case, {I) Fell V. Knight, 8 M. & Godb. 346; Palm. 374; 2 W. 276 ; Rex v. Ivens, 7 C. & Rol. Rep. 345 ; Newton v. P. 219 ; Rex v. Luellin, 12 Trigg, 1 Show. 270. Mod. 445. (p) Dicas v. Hides, 1 Stark. (/«) Rex V. Ivens, 7 C. & P. 247. 213. (q) Fell V. Knight, 8 M. & (n) Rex v. Luellin, 12 Mod. W. 269. 445. (r) Per Bayley, J., Rich- (o) Hawthorn v. Hammond, mond v. Smith, 8 B. & C. 11. 180 CONTRACTS CONCERNING HORSES, &C. "Where a Guest's Horse is stolen. Where ano- ther person's Horse is stolen. Horse out at grass by the Guest's de- and it is no defence to say that he was sick or of non sane memory (s). If the Guest's Horse is stolen the Innkeeper is answerable in an action upon the custom of the realm (<), even if the owner has gone away for several days, and it is lost or stolen in his absence, or if it has been brought by a ser- vant (m). But if a person takes another's Horse, and rides him to an Inn where he is lost or stolen, the owner has no action against the Host, but has his remedy against the taker (a:). An Innkeeper is only bound by the custom of the realm to answer for those things that are infra hospitium, and not for anything out of his Inn. For where a Horse is lost or stolen when out at grass by the Guest's desire, the Host is not chargeable, unless it was the consequence of his wilful negligence (y): for instance, an action on the Case lies against an Innkeeper who voluntarily leaves open the gates of his close, whereby the Horse strays out and so is lost or stolen (z). But he is answerable if he has put the Horse out to th?Guest's^* grass without the owner requiring him to do so (z). And desire. where an Innkeeper took in a Horse and gig on a Fair day, and the Hostler, without the Guest's permission, placed the gig outside the Inn-yard, in the part of the street in which the carriages at the Inn were usually placed on Fair days, and the gig was stolen thence, the Court of King's Bench held the Innkeeper responsible. And Mr. Justice Taunton said, " It does not appear that the gig was put in this place at all at the request or in- stance of the plaintiff'; the place is therefore a part of the Inn ; for the defendant by his conduct treats it as such. If he w^ould wish to protect himself, he should have told the plaintiff that he had no room in his yard, and that he Horse out at (s) Cross v. Andrews, Cro. Eliz. 622. (t) Fitzherbert'sNat Brev. 943 ; Jelly v. Clark, Cro. Jac. 189 ; York v. Greenaugh, 2 Lord Raym. 867 ; -S". C. 1 Salk. 338. (u) 1 Salk. 338 ;lRol.Abr. 3 ; Moor, 877 ; Cro. Jac. 224 ; Yelv. 162; Bac. Abr. tit Inns and Innkeepers. (x) 1 Rol. Abr. 3. (y) Saunders v. Pluminer, Orl. Bridg. 227. {z) Bac. Abr. tit Inns and Innkeepers ; Calye's case, 8 Coke, 32 b; Moor, 1229; Pop. 127; Mosley v. Fosset, 1 RoL Abr. 3 ; 4 Leon. 96 ; 2 Brownl. 255 ; Richmond v. Smith, % K 8l C. n. INNKEEPER. 181 would put the gig in the street, but could not be answer- able for it ; not having done so, he is bound by his com- mon law liability {a)." It is said in Calye's case (b), that an Innkeeper's liabi- Where a lity is confined to " bona et catalla,'' and that he is not Horse is i answerable if the Guest himself is beaten, as that is not jured. a damage to " bona et catalla." But where the Guest's Horse had been beaten, the Innkeeper was held liable ; and it appeared that it had been injured by having been taken out of the Inn and immoderately ridden and whipped, though it did not appear by whom (c). Where a. Guest's Horse is injured, there is always a Presumption presumption of negligence against the Innkeeper, but °^ i^^gli- such presumption may be rebutted. Thus where a Guest's Hoi"se was left at the defendant's Inn on a Market day, and given in charge to the Hostler, who placed it in a stall where there was another Horse, which kicked it and so inflicted an injury, it was held by the Court of Queen's Bench, after taking time to consider, that in such case there was a presumption of negligence on the part of the Innkeeper or his servants ; but that such presumption might be rebutted by giving proof of such skilful manage- ment as to convince the Jury that the damage could not have been occasioned by the negligence imputed {d). For the security and protection of travellers. Inns are A Guest's allowed certain privileges, such as that the Horse and listrainable goods of the Guest cannot be distrained, &c. (e). If an Innkeeper takes his Guest to rooms that he has Even where provided for him, on account of not having sufficient room modated°^'t in his Inn, these rooms are privileged from distress (/*). of the inn. So also if a Guest's Horse is put into a Stable provided Or uses a for a particular occasion, it cannot be distrained. For- ^t^^^,^ P^*'" merly, however, a diiferent view was taken in a similar occasion^ ^ case. For where the tenant of a Stable had sub-let it to an Innkeeper during races, and the Horses of a Guest were put into it and afterwards distrained by the landlord, the Distress was held good, and Lord Mansfield, C. J., thought that the owner of the Horses had his remedy (a) Jones v. Tyler, 1 A. & Q. B. 168. E. 522 ; ^. C. 3 N. & M. 576. (e) 1 Rol. Abr. 668 ; Co. (6) Calye's case, 8 Rep. Litt 47. 32 a ; S. C. S Co. 32. (/) See per PoUock, C. B., (c) Stannion v. Davis, 1 Williams v. Holmes, 22 L. J. Salk. 404 ; S. C. 6 Mod. 323. 284 (Exch.) (d) Dawson v. Chamney, 5 182 A reasonable price must be charged for keep. Innkeeper has a lien on a Horse lor it. Cannot de- tain a Guest for his bill. But may detain his Horse. His right of lien. Horses and carriages sent to livery at an Inn. Cannot sell one Horse for the keep of others. CONTRACTS CONCERNING HORSES, &C. against the Innkeeper under tlie implied warranty for safe custody {g). An Innkeeper is bound to charge a reasonable price for the keep of a Horse, such price to be calculated with respect to the Markets adjoining, without taking any thing for Mtter {h) ; and if he makes a gross overcharge in his bill, the Guest may tender him a reasonable sum, which will entitle him to a verdict in an action ; or the Innkeeper may be indicted and fined for it as an extor- tion {i). As an Innkeeper by law is bound to receive the Horse of a traveller in case his stable is not full, he has there- fore a lieu for its keep upon a Horse left with hun, and received by him in his character as Innkeeper (k), whe- ther it be kept in the stable or put out to grass. For the pasture of such persons, set up by law for entertainment, has the same pri\41eges as the stables, and an action of Trover cannot be maintained against him for detaining the Horse of his Guest, unless the money due for its keep has been paid or tendered (Z). An Innkeeper cannot detain a Guest, or take off his clotheSj in order to secure payment of his bill {m). But he may detain his Horse, or may bring an action for lodging, &c. without any special contract {n). An Innkeeper's right of lien depends upon the fact of the goods coming into his possession in his character of Innkeeper, as belonging to a Guest yo). But if a man send his Horses and Carnage to livery at an Inn, and they are so received, the fact of his becoming a Guest at a subsequent period does not give the Inn- keeper any lien {p). Where several Horses are brought to an Inn by the same person, each by the custom of London may be sold {g) Crosier v. TomJiinson, 2 Ld. Ken. 439 ; S. C. B.rnes' Notes, 472. (h) 21 Jac. 1, c. 21, s. 2. (i) 1 Hawk. 225 ; Cro. Jac. 609; Carth.150; Skin. 291 ; Kirkman v. Shawcross, 6 T. R, 17. (A:) S7nith v. Dearlove, 6 C. B. 135; S. a 12 Jur. 377. (/) 39 Hen. 6, p. 18; 5 Hen. 7, p. 15; 2Ro].Abr. 85; Cro. Car. 271; Carth. 150; 1 Salk. 388. (m) Sunbolfw. Alford, 3 M. & W. 248. {n) Saunders v. Plummer, Orl.Bridg. 227 ; Smith x.Dear- love, 6 C. B. 135. (o) Smith V. Dearlove, 6 C. B. 135 ; S. a 12 Jur. 377. (p) Smith v. Dearlove, 6 C. B. 134; S. a 12 Jur. 377. INNKEEPER. 183 for its own keep only and not for the keep of the others ; so that if the Innkeeper permits the Guest to take away all but one, he cannot sell this to pay the expenses of keeping the whole, but must deliver it up on tender of the amount for its own keep {q). Where a person wrongfully seizes a Horse, and takes Has a lien it to an Inn to be kept, the owner cannot have it until on a,Horse he has satisfied the Innkeeper for its meat; for the Inn- wrong-doer. keeper is not bound to inquire who is the ow^ner of the Horse. If the Innkeeper in such case was to have no lien, Doderidge, J., said, '' It were a pretty trick for one who wants keeping for his Horse (7*)." But if he knew at the time the Horse was left, that the But not if he jjerson who brought it w^as a wrongdoer, and not the \^^^- ^* ^\ owner of it, he has made himself a party to the wrongful was left. act, and has no lien upon the Horse for its keep ; and the question as to the scienter must be left to the Jury (s). The Horse must be placed at the Inn by a Guest to a Horse left entitle the Innkeeper to detain it for its keep ; for where ||ce!^^ ^^' a person was stopped with a Horse under suspicious cir- cumstances, and it was left at an Inn by the Police, it was held that the Innkeeper had no lien, and that an Auctioneer, by the du-ection of the Innkeeper, selling the Horse for its keep, was liable to the owner of the Horse in an action of Trover {i). If the Innkeeper previously agree to give the Guest Giving credit for his entertainment, he cannot detain his Horse ^^^^t^* or goods ; or if where there has been no such agreement, he suffer his Guest^s Horse to depart without payment, or by any other means give credit to the owner, he cannot afterwards detain it for the debt upon its coming again into his possession (u). If a third party promise the Innkeeper to satisfy him A third party for the meat of the Horse, in consideration that he will s^er"ble* deliver it to the Guest, it is a good promise ; for there is a good consideration, inasmuch as the Innkeeper loses the detainer, which is a damage, and the Guest regains the Horse, which is the advantage {x). But where the owner of a Horse has fraudulently got Horse re- moved to de- {q) Moss V. Townsend, 1 (t) Binns v. Pigot, 9 C. & feat the lien. Bulst. 207. P. 208. (r) Robinson v. Walter, (u) Jones v. Thu?-loe, 8 Mod. Pop. 127. 172; S. a Jones v. Pearle, (s) Johnson v. Hill, 3 Stark. 1 Str. 557. N. P. C 172. (x) Mutton, 101. 184 CONTRACTS CONCERNING HORSES, &C. Innkeeper forbid to give more food. He cannot use a Horse he detains. He cannot sell a Horse he detains. possession of it to defeat the lien, the Innkeeper may re- take it without force, for the lien is not put an end to by his having thus parted with the possession of it {y). But it is held that the Innkeeper must make fresh pursuit after it, and retake it, otherwise the custody is lost ; for he cannot take it at any other time, as it is in the nature of a Distress. But where there is a lien by agreement, it is in the nature of a Pledge, and the Innkeeper may retake the Horse, not only on fresh pursuit, but also wherever he finds it (z). An Innkeeper who detains a Horse for his keep, has a lien upon him for the necessary food supplied when thus in his possession, even if it be given against the express direction of the owner. Thus where the owner of a Horse standing at an Inn came and directed that the Innkeeper should not give him any more food, as he would not be responsible for it, and the question was, whether the owner was chargeable for the food given after this direction. Chief Justice Holt was at first inclined to consider this a discharge, and that the Horse, though he might be re- tained by the Innkeeper, was but in the nature of a Dis^ tress, and that being in the custody of the Innkeeper in his Inn, it was a pound covert, and the Horse consequently ought to be maintained at his peril. However, he after- wards changed his opinion, and directed that this was no discharge; for then ?inj Innkeeper Txi\gh.% be deceived, and his security would be lessened {a). Where an Innkeeper detains a Horse for its meat he cannot use it, because he detains it as in the custody of the law, and the detention is in the nature of a distress, which cannot be used by the distrainor (&). An Innkeeper cannot seU the Horse he detains for his meat and so pay himself, because, as the Court said in Jones V. Thurloe, " he is not to be his own carver (c)." And even if the Horse " eat out the price of its head," that is, consume as much as it is worth, he cannot sell it, except he live in London or Exeter, where by the custom (t/) Wallace v. Woodsate, Ry. & M. 193 ; S. a 1 C. & P. 575. (z) Rosse v. Bramstead, 2 Roi. Rep. 438. (a) Gelber X.Berkeley, Skin. 648 ; and see Scarfe v. 3Ior- gan, 4 M. & W. 270. (fc) Westbrook v. Griffith, Moor. 876 ; Robinson v. Wal- ter, 3 Bulstr. 270 ; Bac. Abr. tit. Inns and Innkeepers. (c) Jones v. Thurloe, 8 Mod. \12; S. C. Jones v. Pearle, Str. 556. INNKEEPER. 185 of those places, if the Horse is the property of the guest, he may take it as his own upon the reasonable appraise- ment of four of his neighbours. His only remedy in other places has been held to be an action on the Case for food (J). The circumstance of an Innkeeper being unable to sell it was once a Horse after it has eat its value, would in some cases be ^f^ other- a great hardship, as he is daily incurring expense without any remuneration. The law as laid down in The case of an Hostler in Yelverton seems much more reasonable. In that case Chief Justice Popham says, ^' After the Horse has eat as much as he is worth, the Innholder, upon a reasonable praisement may sell him, and it is a good sale in law. A tailor is not bound to deliver my apparel till he is paid for making it ; yet for default of pajmient he cannot sell it, as in the other case he may sell the Horse ; the reason is, because the keeping of the Horse is a charge, because he eats, but the keeping of the Apparel is not a charge, ''quod tola curia concessit {e).'' Under statute 5 & 6 Will. 4, c. 59, s. 4, requiring Distrainor's the distrainor of any Horse (which word " Horse" may power of sale by sect. 21 be construed as " Horses") to feed it while in the pound, and empowering him after seven days, to sell any such Horse for the expenses, a party distraining several Horses maj'^, by a proper exercise of discretion, sell one or more, for the expense of all. And it would seem that he may repeat such sale from time to time as need requires {f). VETERINARY SURGEON AND FARRIER. There is no law which applies to a Veterinary Surgeon Noiawpecu- in particular ; and where there is no contract, he must go ^i^"^ ^o Vete- upon a quantum meruit. And a usage to charge for gg"^. attendance, W'here there is not much medicine required, is too uncertain {g). A Certificate of the Veterinary College, of attendance certificate of at Lectures there, is not admissible in evidence, as not Veterinary coming from a body known to the law (^). College. {d) Baldway v. Ouster, 1 (e) The Case of an Hostler, Vent. 71 ; Westbrook v. Grif- Yelv. &Q. fith, Moor. 876; Moss v. (/) Lay ton v. Hurry, 8 Q. Townsend, 1 Bulstr. 207; Ro- B. 811. hinson v. Walter, 3 Bulstr. {g) Lane v. Cotton, 1 Salk. 270; Bac. Abr. tit. Inns and 18. Innkeepers. 186 CONTKACTS CONCERNING HORSES, &C. Farrier cannot re- fuse to shoe a Horse, When brought at a reasonable time. Answerable lor his own want of skill. Where a third person is affected. When an- swerable for his servant. Collins V. Rodway, Where a man takes upon liimseif a public employment he is bound to serve the public as far as his employment goes, or an action lies against him for refusing. Thus if a Farriei' refuse to shoe a Horse, an Innkeeper to re- ceive a guest, a Carrier to carry, when he may do it, an action lies (A). But the Horse must be brought to be shod at a rea- sonable time for such purpose ; because if brought at an irregular hour, the Farrier may say, '' I will not do it(0." A Farriei' is liable for laming a Horse in shoeing it, and the action is founded on the implied contract, that every workman undertaking any work will perform it properly {k), because it is the duty of every artificer to exercise his art rightly and truly as he ought (Z). And an action may be maintained for a breach of duty, arising out of a contract with a third person. Thus Coke, C. J., puts this case, " If the master sends his servant to pay money for him upon the penalty of a Bond, and on his way a Smith in shoeing doth prick his Horse, and so by reason of this the money is not paid ; this being the servant's Horse, he shall have an action upon the Case for pricking of his Horse ; and the master also shall have his action ujwn the Case for the special WTong which he hath sustained by the nonpayment of his money occasioned by this(w)." And Avhere a Horse has been injured in shoeing from the negligence of a Farrier^s servant, the master is liable (??). But not if the wrong be wilful.^ as if the ser- vant maliciously drives a nail into the Horse's foot in order to lame him (o). The Rule of Law as to the extent of a FaiTier^s lia- bility in shoeing a Horse, is fully and clearly laid down by Chief Baron PoUock in the case of Collins v. Rod- way (p) ', and as that case does not appear in any of the (h) Lane v. Cotton, 1 Salk. 18. (i) Collins v. Rodway, post. (k) 2 Chit. Pleading, 6th ed. 262. (/) Rex V. Kilderbij, 1 Saund. 312, n. 2. (w) Everard v. Hopkins, 2 Bulstr. 332; and see Long- mead V. HolUday, 6 Exch. 764. (n) 1 Bla. Com. 431; Ran- dleson v. Murray, 8 A. & E. 109. (o) Jones v. Hart, 2 Salk. 440. (/)) Collins V. Rodway, be- fore Pollock, C. B., Guildhall, Dec. 15, 1845, 14 Veterina- rian, 102. TETERINARY SURGEON AND FARRIER. 187 Eeporte, it will here be given at considerable length. Tlie foUo"\nng is compressed from an exact copy of the shorthand notes which were taken at the trial, and after- wards published in the Veterinarian. It was an action brought against the defendant, a Farrier, for unskilful- ness in the shoeing of two Horses, sent by the plaintiff to be shod at the defendant's forge, which he carried on for the purpose of shoeing Horses with a shoe for which he had a patent. The one, a gTey mare Pony, was sent on the 16th of July, in the evening after working hours, and was shod at the particular request of the plaintiff's father. On the 17th she was driven with two men in a gig to Bar- net, and it was admitted that for three miles she had gone sound. On the 20th the shoes were taken off by the apprentice of Beck, another Farrier. On the 21st the defendant received notice of her lameness, and on the 26th, after her feet had been cut about and poulticed, she was reshod by Beck and afterwards worked. It ap- peared that subsequently she had been turned out for nine weeks. The other, a black entire Pony, was sent to be shod on the 18th July. On the 21st the shoes were taken off by Beck, and blood was said to have followed the with- drawal of two of the nails. It was admitted that this Pony's feet were very thin and bad, and his action very high. What was done to this Pony did not appear; but he had been under the care of Mr. Field, the Veterinary Surgeon, and was afterwards sold for a small sum at Aldridge's Repositorj'^ some time in October. At the trial no Veterinary Surgeons were called to give any information as to the nature of the injury or of the parts injured. And the allegation that the patent shoe was one likely to produce lameness by its applica- tion, was withdrawn by the plaintiff's counsel. The defendant's case rested on two grounds : First, That even supposing the Ponies to have been lamed in shoeing, he was not liable because he had brought to the ; performance of that duty competent skill and reasonable \ care, and that the plaintiff kno^vingly brought them to ; have the patent shoe applied. Secondly, That one Pony was lame before it was shod, and the other had not been lamed by the shoeing, but the lameness had arisen from other causes. 188 CONTRACTS CONCERXIXG HORSES, &C. Rule as to In Summing up Chief Baron Pollock said to the Jurj^ : Farriers. a 'pjjg Qjjjy j^^le of Law that I feel it necessary to lay- down upon the subject in this case is, that if this opera- tion has been performed unskilfull}'^ and improperly, no doubt the defendant is liable to the plaintiff for any mis- chief that may have resulted from such unskilfulness ; but he is liable only to the extent to which mischief has been produced. The Hule I take to be this, that a person employed for any purpose must bring to the sub- ject-matter a reasonable skill and fitness, and he must exercise that reasonable skill and fitness with due and proper care. If he be deficient in the requisite skilful- ness, and in consequence of that the operation is per- formed in a bad and bungling manner, or if, having the requisite skilfulness, he fails to bring it to act, he is liable for any mischief wliicli results from that." Nolnsurance " I need hardly tell you, that an operation of this sort fu:^"^^^'^" cannot be considered in the light of an Insurance. If you apply to a Surgeon or a medical man to cure you of any disorder, he is liable if there is any want of skill or proper care ; and I observed that one of you asked whe- ther pricking a Horse w'as a frequent accident. I think the answer to that immediate question was, that it was not, at aU events, very unfrequent ; still it may happen without any great degree of unskilfulness attaching to it. The operation most resembles that of shaving. If a man undertakes to shave another, he would not be re- sponsible for every abrasion of the skin that the barber might make; it requires a degree of skilfulness and care, and it might be hardly possible to operate upon a certain person w^ithout something of that sort taking place: and although an accident may happen, such as in this case, it may be that the foot of the Horse was in such a state that it would be difficult to perform the ope- ration of shoeing." Peculiar diffi- " Wherever that is the case, ^--ou would naturally ex- should be P^ct some information given that there were those defects mentioned, and difficulties, so that the Farrier might be made ac- quainted with the risk he was exposing himself to. You will therefore have to judge whether you think there was any want of skill in the opemtion of shoeing these Horses. I own it appears to me that I think it is im- possible to doubt as to the fact that there was an actual pricking." VETERI^^ARY SURGEON AND FARRIER. 189 " With respect to the man's skill, he may have done Coming at an it on this occasion badlj', they coming to him at night to unseasonable insist upon the job being done at an irregular hour ; that was partly suggested at one time. I must say it appears to me as a question of law, that that is no ex- cuse. If j^ou go to any place, and call in a Surgeon or a Farrier, or any person to perform an operation, if the time is inconvenient, and if the light be not sufficient, and if the occasion be not suitable, he is bound to say, ' I will not do it.' If he does it, he is answerable, un- less indeed he distinctly and explicitly says, 'I do it at your urgent request, but / will not be responsible for the consequences.' Nothing of that sort appears to have come from him. On the contrary, though there may have been a remonstrance that the man came too late, yet it was done. It appears to me in point of law that if a person, called upon at an unseasonable time, under- takes to do it without declaring he will not be respon- sible, he does it with the same responsibility as if he did it at any proper time." The Jury found a verdict for the defendant, and the Court of Exchequer afterwards refused a rule for a new trial, which was applied for on the ground that the ver- dict was against the evidence. Under the Police of Towns Act every person who, in Parrying:, &c. any street, to the obstruction, annoyance, or danger of ^" *^^ street. the residents, shoes, bleeds, or farries, any Horse or ani- mal (except in cases of accident), or cleans, dresses, exer- cises, trains, or breaks, or turns loose any Horse or animal, is liable to a penalty not exceeding 40s. (q). A Horse standing at a FaiTier's to be shod is exempt ?°^f^ stand- from Distress on the ground of public utility (r). shod not dis- Under a general count for Work, labour and materials, trainable, a Farrier mav recover, in an action brought by him, for Earner may •> •• •"•'^ rGCovcr for attendances, and for medicines administered in the cure of work, labour a Horse (5). and materials As a party has a right to go to a Farrier's shop by the ra^lxmnt^"^" tacit permission of the law (^), an action of Trover does Horse may be not lie against a Farrier for refusing to deliver a Horse detained for the price of his shoeing. {q) 10 & 11 Vict. c. 89, s. (s) Clark v. Mumford, 3 28. Camp. 37. (r) Francis v. Wyatt, 3 {t) Lane v. Cotton, 1 Salk. Burr. 1502, and the autho- 18. rities there cited. 190 CONTRACTS CONCERNING HORSES, &C. Such Lien is favoured by law. Extends only to each par- ticular time. Liability to feed a Horse detained. which he has shod, unless the money due for the shoeing has been paid or tendered (u). Because the artificer to whom goods are delivered for the purpose of being worked into form, — the Farrier by whose skill an animal is cured of a disease, — the Horsebreaker by whose skiU a Horse is rendered ma- nageable, and the man who covers a Mare with a Stallion, have liens on the chattels in respect of their charges. And all such specific liens, being consistent with the principles of natural equity, are favoured by the law, which is construed liberally in such cases {x). But the Horse can only be kept for work done at that particular time, for the lien does not extend to any pre- vious account ; and when this point was decided by the Court of Queen's Bench, Lord Ellenborough said, " Grow- ing liens are always to be looked at with jealousy, as they are encroachments on the common law. If they are encouraged in practice, the Farrier will be claiming a lien upon a Horse sent to him to be shod. It is not for the convenience of the public that these liens should be extended further than they are already established by law (y)." In the case of Scarf e v. ^Iorgan{z) a difficulty arose out of the cii'cumstance that a living chattel might be- come expensive to the detainer, and would raise the question as to who was liable to feed it intermediately. But this difficulty was answered by referring to the analogous case of a Distress kept in a pound covert, where he who distrains is compellable to take reasonable care of the chattel distrained, whether living or inanimate j and to the case of a lien upon Corn, which requires some labour and expense in the proper custody of it. HORSEBREAKER, TRAINER, &C. Horse- A Horsebredker is liable for any damage which through for dama^e'^^ ^^^^ negligence may happen to the Horse he is breaking. to the Horse. Thus an action on the Case was brought, and damages recovered against the defendant, to whose charge a Mare had been committed, " to be taught to pace^' («). (m) Bac. Abr. Trover, (E.) 816. (a-) Scarf e v. Morgan, 4 M. & W. 280 ; Chase v. Westmore, 5 M. & S. 189. (y) Rushforth v. Hadfield, 7 East, 229. (2) Scarf e v. Morgan, 4 M,' & W. 280. (a) Lib. Plac. 25. HORSEBREAKER, TRAINER, &C. 191 The Horsebreaker, by whose skill the Horse is ren- Horse- dered manageable, has a lien upon him in respect of his j^reaker's charges ; and such lien being consistent with the princi- ples of natural equity, is favoured by the law, which in such case is construed liberally {h). It was for a long time doubtful whether in any case a Trainer's Trainer had a lien for the keep and exercise of a Race- ^^^"• horse sent to him to be trained ; unless perhaps it was delivered to be trained for the purpose of running a speci- fied JRace{c). In Bevan v. Waters {d) he was held to have a Hen ; and the question also arose in Jacobs v. Latour (e), but the case was decided on another point. The doubt seemed to be whether in the contract for training there was a stipulation for the redelivery of the Horse trained for the purpose of Racing. And in a later case Mr. Baron Alderson said, *'It may be very doubtful whether a Trainer would not be considered to be in the situation of a Livery-stable-keeper, if by the contract he is to allow the OMTier to run the Horse (/")." Mr. Baron Parke shortly afterwards in another case said, " As to the case of the training Groom it is not necessary to say anything, as it has not been formally decided; for in Jacobs V. Latour {e), the point was left undetermined. It is true there is a J^isi prius decision of Best, C. J., in Bevan v. Waters {g), that the Trainer would have a lien, on the ground of his having expended labour and skill in bringing the animal into condition to run at Races ; but it does not appear to have been present to the mind of the Judge, nor was the usage of training to that effect ex- plained to him, that when Horses are delivered for that purpose the owner has always a right during the con- tinuance of the process to take the animal away for the purpose of running Races for Plates elsewhere. The right of lien, therefore, must be subservient to this general right which overrules it ; so that I doubt if that doctrine would apply where the animal delivered was a Racehorse, as that case differs much from the ordinary case of training. I do not say that the case oi Bevan y. Waters{g) was wrongly decided; I only doubt if it {h) Scarfe v. Morgan, 4 M. {e) Jacobs v. Latour, 2 M. & W. 276. & P. 205. (c) See Jackson v. Ciun- {/) Scarfe w. Morgan, 'iM. mins, post. & W. 276. (rf) Bevan v. Waters, 3 C. {g) Bevan v. Waters, 3 C. & P. 520. & P. 520. ter has a lien. 192 CONTRACTS CONCERNING HORSES, &C. extends to the case of a Racehorse, unless perhaps he was delivered to the groom to be trained for the purpose of running a specified race^ when of course these observa- tions would not apply (^)." A recent de- j^ j^^s however been decided in a late case, that the subject" ^ labour and skill employed on a Racehorse by a Trainer are a good foundation ior a lien(^). But if by usage or contract the owner may send the Horse to run at any race he chooses, and may select the Jockey, the Trainer has no continuing right of possession and consequently no lien (A). Stallion-mas- The owner of a Stallion is entitled to a specific lien on the Mare in respect of his charge for covering her. Thus in the following case S. sent a Mare to M., a farmer, to be covered by a Stallion belonging to him, and the Mare was taken to M.'s stables and covered accord- ingly upon a Sunday. However, the charge for covering no^ being paid, M. detained the Mare, and on a demand of her being afterwards made, M. refused to deliver her, claiming a lien not only for the charge on that occasion, but for a general balance due to him on another account. It was held that M. was entitled to a specific lien on the Mare for the charge for covering her, and that the claim made by M. to retain the Mare for the general balance was not a Avaiver of his lien for the charge on the par- ticular occasion, and did not dispense with the necessity of a tender of that sum (Z). For work It was also decided that such a contract was not void Sunda" ^ within 29 Car. 2, c. 7, s. 1, on the ground of its having "" ^^ ' been made and executed on a Sunday, but that even if it were void the contract having been executed the lien attached. And Mr. Baron Parke said, '' We are of opinion that this is not a case within the statute 29 Car. 2, c. 7, which only had in its contemplation the case of persons exercising trades, &c. on that day, and not one like the present, where the defendant, in the ordinary calling of a farmer, happens to be in possession of Stallion occasionally covering Mares; that does not appear to me to be exercising any trade, or to be the case of a person practising his ordinary calling (Z).^' (i) Jackson v. Cummiiis, 5 (Q. B.) ; Lee v. Irwin, 4 Ir. M. & W. 3o0. Jur, 372 (Exch. Ir.) (A-) Forth v. Simpson, 13 (/) Scarfe v. Morgan, 4 Mi Q. B. 680 ; S. a 18 L. J. 266 & W. 270. ( 193 ) CHAPTER XL LIVERY-STABLE KEEPERS, AGISTERS, AND THE HIRING AND BORROWING HORSES. Livery-Stable Keeper. Has no Privilege 194 Liable where the Horse is lost 195 Horse at Livery distrain- able id. But not u'here he is merely to be cleaned and fed . . id. Distinction taken in Par- sons V. Gingell id. Livery- Stable Keeper has no Lien for Keep id. May have a Lien by Agreement id. Horse removed to defeat such Lien 196 What cannot be set off in an Action for Keep . . . id. Agister. His possession id. Does not insure a Horse's Safety id. He is answerablefor Neg- ligence 197 Fences out of Order, Sfc. id. The Horse's Condition . . id. Eatage let for a certain Time \ Agister has no Lien . . • • May have a Lien by Agree- ment Horses and Cattle being Agisted are Distrain- able But not when taken in to rest for a Night. . id. 198 199 id. id. Decision of the Irish Court of Queen's Bench 199 Distinction where Cattle enter by breaking Fences id. Hiring Horses. Letting for Hire 200 Warranty of Fitness for a Journey id. Where a particular Horse is selected id. What Care is required . . id. Infancy good Defence to an Action id. Where Hirer is answer- able at all events id. Unnecessary Deviation . . id. Where Negligence must be proved 201 Where the Horse falls Lame id. Where the Horse is ex- hausted id. Where the Horse refuses his Feed id. Where the Horse is re- turned in worse Condi- tion id. Expenses of curing Sick Horse 202 Where the Horse is impro- perly doctored id. Who must pay for Shoeing id. Bailment determined by selling the Goods id. K 194 CONTRACTS CONCERNING HORSES, &C. Where the Horse is stolen from the Hirer Where the Horse is stolen by the Hirer Must have been originally taken with a Felonious Intention Horse hired by a Servant . Owner's Liability in case of Accident Horses driven by the Owner's Servants .... Horses driven by the Owner's Servants to a certain Place Travelling post Horses driven about Town by the Owner's Servants Laugher v. Pointer .... Owner held liable in Quar- man v. Burnett Wearing the Hirer's Livery A Job-Master's Agreement Where the Hirer is liable for damage Hirer liable through his own Conduct Hirer liable where he might have controlled his Servant M'Laughlin v. Pryor . . Opinion of the Court of Common Pleas The general Rule .... Where the Hirer would not be liable 202 203 id. id. 204 id. id. 205 id. id. id. 206 id. id. 207 id. id. 208 id. 209 Hirer sitting outside liable 209 The Jury must decide whether the Servant is acting for the Hirer or Owner 210 A Hirer's Agreement . . . id. Borrowing Horses. Lending for use id. What Care is required . . id. As much as the Borrower is capable of bestowing 211 Showing a Horse for Sale id. A gratuitous Bailee .. 212 Use strictly personal .... id. Cannot be used by a Servant id. Must be used according to the Lending id. Or else the Borrower is answerable 213 Where no Time is fixed for return id. Redelivery on Request . . id. Borrower bound to feed the Horse id. Where the Horse is ex- hausted id. Where the Horse is killed id. Where the Horse dies from disease 214 Where Borrower is an- swerable for Damage . . id. Bailment ended by Misuser id. LIVERY-STABLE KEEPER. Has no pri- A Livery-stahle Keeper, who is not an Innkeeper, has viiege. jjQ privilege himself, and none can be claimed under him ; he must therefore rest on his own agreement («). But he is not liable to the inconveniences to which Innkeepers (a) Yelv. m ; Chapman v. 687 ] S. C. \ Salk. 388 ; Gelly Allen, Cro. Car. 271 ; Yorke v. Clark, Cro. Jac. 188. V. Greenaugh, 2 Ld. Raym. LIVERY-STABLE KEEPER. 195 are subject, such as taking out Licences, &c. ; and he is not bound to have Soldiers quartered upon him(Z'). But if a Horse in his keeping be lost or stolen, he is Liable where answerable for it (c). JJe Horse is A person should satisfy himself of the credit and sol- Horse at vency of the Livery-stable Keeper, to whom he proposes Livery dis- to entrust his Horse ; because Horses and Carriages *^^™^^^^- standing at Livery are distra'mable for rent (c). But the case of a Horse sent to a Livery-stable merely But not to be cleaned and fed, is very different from one, where ^^ere he is he is sent to remain during the owner's pleasure, the ^eane'd Ini feeding and grooming being only incident to the principal fed. object (c?). In the case of Parsons v. Gingell(e), the following Distinction distinction was taken by Chief Justice Wilde : " If the ^^'^^"Z"^'"'- goods are sent to the premises for the purpose of being geu, dealt with in the way of the party's trade, and are to remain upon the premises until that purpose is answered, and no longer, the case falls within one class ; but if they are sent for the purpose of remaining there merely at the will of the owner, there being no work to be done upon them, it falls within a totally different considera- tion." A Livery-stable Keeper cannot detain a Horse for his Livery-stable keep as an Innkeeper may, because he is not bound to Keeper has take it, much less can he detain, or be bound to take a keep?" ^^ Carriage without Horses (/"). But he may have a lien by special agreement, as where May have a a Mare was placed w ith a Livery-stable Keeper, who ^^^" ^^ agree- advanced money to her owner, and it was agreed that she should remain as a security for the repayment of the sum advanced, and for the expenses of her keep, the (6) Parkhurst v. Foster, 1 558. Salk. 387 ; Barnard v. How, (e) Parsons v. Gingell, 4 1 C. & P. 366. C. B. 558. (c) Yorke v. Greenavgh, 2 (/) Barnard v. How, 1 C. Ld. Raym. 687; Francis v. & P. 366 ; Yorkev.Greenaugh, Wyatt, 3 Burr. 1498; S. C.\ 2 Ld. Raym. 867 ; Francis v. Bla. Rep. 485 ; Parsons v. Wyatt, 3 Burr. 1498 ; -S". C. Gingell, 4C. B. 558 ; S. C. 16 1 Bla. Rep. 485 ; Parsons v. L. J. 227 (C. P.) Gingell, 4 C. B. 558; S. C. (d) See per Wilde, C. J., 16 L. J. 227 (C. P.) Parsons v. Gingell, 4 C. B. k2 196 CONTRACTS CONCERNING HORSES, &C. Horse re- moved to defeat such lien. "WTiat cannot be set off in an action for keep. Livery-stable Keeper was held to have a lien on her for the amount due (Ji). And if he have such lien by agreement, and the owner of the Horse fraudulently take it out of his possession to defeat the lien, the Livery-stable Keeper maj'^ retake it without force, for the lien is not put an end to by his having parted with the possession under such circum- stances {i). Where a Livery-stable Keeper brings an action for a Horse's keep, money received by him as the price of the Horse, but afterwards returned on the recision of a con- tract of sale, cannot be set off against him by the de- fendant. Thus, the plaintiff, a Livery-stable Keeper^ sold for the defendant a Horse and received the price. The purchaser afterwards rescinded the contract on the ground of fraud, and was repaid the purchase-money. In an action by the plaintiff for the keep of the Horse, it was held that the defendant could not set off the price as money received for his use, it having ceased to be so when the contract was defeated by the purchaser, although the defendant was ignorant of the fraud (A). His posses- sion. AGISTER. An Agister has such a possession that he may maintain Trespass against a person who has taken away any Horse or Cattle left with him to be agisted {I). If a Horse so left be sold by him it is no Larceny {m) ; and if it be stolen, and the thief prosecuted, the property may be laid as his(w). Does not in- A person who takes in Horses to agist does not like an sure a Horse's Innkeeper insure their safety. He is obliged to use rea- sonable care, but is not answerable for the wantonness or mischief of others. For if a Horse has been taken from his premises, or has been lost by accident, against which he could not guard, he is not responsible (o). safety. {h) Donatty v. Crowder, 11 Moore, 47t). (i) Wallace v. Woodgate, R. & M. 193; S. C. 1 C. & P. 575. (/r) Murray v. Mann, 2 Exch. 538. (/) See 4 Inst. 293 ; 2 Rol. Abr. 551 ; Woodward' s case, 2 East's P. C. 653. (tw) Rex V. Smith, 1 Mood. C. C. 473. {n) Woodward's case, 2 East's P. C. Q5-3. (o) Broadwater v. Blot, Holt's Rep. 547; see Corbett V. Packlngton, 6 B. & C. 268 ; Lib. Plac. 14. AGISTER. 197 A person who takes Horses to agist is answerable, He is an- either if a particular negligence be proved, through swerabie for which the Horse was lost, or if, in ignorance of the ^^^o^'g^'^'^*'' special circumstances of the case, there be gross general negligence, to which the loss may reasonably be as- cribed ' o). For instance, if the Fences were in an improper state Fences out of when the Horse was taken in to agist, or if the party order, &c. taking it in, did not apply that care and diligence to its custody which the owner had a right to expect (o) j as where, from not properly Fencing a Pond, the Horse stuck in the mud and died, the Agister is answerable for such negligence (/>). It is only just, that if A. send his Horse to B. to be kept The Horse's for him at grass for a certain time, B. should be answer- condition, able to him, if the Horse when returned appear in worse condition than Horses usually are under such circum- stances, unless B. show that the Horse has been in a good pasture, and therefore that the falling oif must have arisen from some fault in his constitution. But were B. to agree to take in A.'s Horse as one of ten to graze on a certain field, in that case B. would not be answerable, if A.'s Horse fell off in condition in consequence of the field being eaten bare. It will be seen by a modem case that on a demise of land Eatage let for or the vesture of land (as the eatage of a field) for a a certain specific term at a certain rent, there is no implied obliga- '^™^" tion on the part of the lessor that it shall be fit for the purpose for which it is taken. Therefore, where A. had agreed in writing to take the eatage of twentj'-four acres of land from B. for seven months, at a rent of 40/., and then stocked the land with beasts, several of which died a few days afterwards, from the effect of a poisonous substance, which had accidentally been spread over the field without B.'s knowledge among some manure; the Court of Exchequer held that A. was not entitled on that account to tlu'ow up the land, but continued liable for the whole rent. Mr. Baron Parke saying, in the course of the argument, " It comes simply to the question, whether there is an implied undertaking that the grass shall be fit for the eatage of cattle ) if there is, cadit (o) Broadwater v. Blot, (p) Povey v. Purnell, hefore Holt's Rep. 547; see Corbett Chief Justice Jervis, Com. V. Packington, 6 B. & C. 268 ; Pleas, N. P., Dec. 6, 1853. Lib. Plac. 14. no lien. 198 CONTRACTS CONCERNING HORSES, &C. qucestio ; if not, the plaintiff has performed his engage- ment, and the defendant has had all he bargained for, namely, a demise of the eatage for six months, and must pay for all(j9)." Agister has If a man take in Horses, kine or other cattle to de- pasture, on a contract at so much a head per week, he cannot detain them for the value of the Agistment, unless there is a special agreement to that eifectC^'). And the law on this subject was laid down and explained in the case of Jackson v. Cummins (?•}, in which Mr. Baron Parke said, " I think that by the common law no lien exists in the case oi Agistment. The general Rule as laid down by Best, C. J., in Bevan v. Waters (s), and by this Court in Scarfe v. Morgan{t), is, that by the general law, in the absence of any special agreement, whenever a party has expended labour and skill in the improve- ment of a chattel bailed to him, he has a lien upon it. Now, the case of Agistment does not fall within that principle, inasmuch as the Agister does not confer any additional value on the article either hj the exertion of any skill of his own, or indirectly by means of any instrument in his possession, as was the case with the Stallion in Scarfed. Morgan (t) ; he simply takes in the animal to feed it. In addition to which we have the express authority of Chapman v. Allen {u), that an Agister has no lien ; and although possibly that case may have been decided on the special ground that there had. been an agreement between the parties, or a conversion of the animal had taken place, still it is also quite possible that it might have proceeded on the more general principle that no lien can exist in the case of Agistment ; and it was so understood in this Court in Judson v. Ethridge(x). The analogy also of the case of the Livery -stable keeper who has no lien by law, furnishes an additional reason why none can exist here ; for this is a case of an Agistment of milch cows, and from the very nature of the subject-matter, the owner is to have possession of them during the time of milking 5 which (p) Sutton v. Temple, 12 M. & P. 520 ; S. C. M. & M. 236. & W. 60. (t) Scarfe v. Morgan, 4 M. (q) Chapman v. Allen, Cro. & W. 283; S. C. 1 Horn. & Car. 273; Richards \. Symons, Hurl. 292. 8 Q. B. 93. (m) Chapman v. Allen, Cro. (r) Jachson v. Cummins, 5 Car. 278. M. & W. 342. (.r) Judson v. Ethridge, 1 (5) Bevan v. Waters, 3 C. Cr. & M. 743. AGISTER. 199 establishes that it was not intended that the Agister was to have the entire possession of the thing bailed ; and there is nothing to show that the owner might not for that purpose have taken the animals out of the field wherein they were grazing if he had thought proper so to do. This claim of lien is therefore inconsistent with the necessary enjoyment of the property by the owner." But where there is a special agreement, there may of May have a course be a lien (y). Thus the plaintiff having a Cow at ^^^^^ ^^^^^' grass in defendant's field, and being indebted for the Ao:istment, ao^reed with him that the Cow should be security ; that he would not remove her till the defend- ant was paid, and that, if he did, the defendant might take her where she might be, and keep her till he was paid. The plaintiff removed the Cow without having paid the debt, and the defendant seized her on the high road. In an action of Trespass for the taking, it was held that the agreement might be set up as a defence under a plea that the Cow was not the plaintiff's (y). Horses and Cattle put into a close to be agisted are Horses and liable to be taken in distress by the landlord, the general S^l^lfi^!!."^ T-.li' 1 111- 11 1 T 'IIP agisted are Kule being that all things on the land are distramable lor distrainabie. rent in arrear (z). Horses or Cattle driven to a distant Market, and put But not when into land to rest for one night, cannot be distrained for *^'\^" ^" ^^ rent by the owner of the land, such protection being ab- night. solutely necessary for the public interests (a). Thus it was held in the Irish Court of Queen's Bench, Decision of that certain Cattle belonging to a drover on their way to ^o^J^Qf a Market for the purpose of being sold there, and put to Queen's graze for one night, immediately before the morning on Bench, which the Market was to take place, were privileged from distress by the landlord, for rent due to him out of the place in which they fed {b). The settled distinction seems to be, that where a Distinction stranger's Cattle escape into another's land by breaking Jjl^t^^^^^"^^ the fences, where there is no defect in them, or if the breaking tenant of the land where the distress is taken is not bound fences. to repair the fences, though there is a defect in them, the Cattle may be distrained for rent immediately before they {y) Richards v. Symons, 8 Bla. Com, p. 8, n. 4 ; and see Q. B. 90. Poole V. Longuevill, 3 Wms. (2) Jones v. Powell, 5 B. & Saund. 290, n. q. C. 650; S. C. 8 D. & R. 416. (6) Nugent v. Kirwan, 1 (a) Tate v. Gleed, C. B., Jebb & Symes, 97 (Q. B. Ir.) H. T. 24 Geo. 3 ; 2 Christ. 200 CONTRACTS CONCERNING HORSES, &C. Letting for hire Warranty of fitness for journey. Where a par- ticular Horse is selected. ^Miat care is required. Infancy good defence to an action. Where Hirer is answerable at all events. Unnecessary deviation. are levant et couchant. If however the Cattle escape through the defect of fences which the tenant of the land is bound to repair, they cannot be distrained by the landlord for rent, though they have been levant et cou- chant, unless the owner of the Cattle, after Notice that they were on the land, neglects or refuses to drive them away (c). HIRING HORSES. Letting for Hire is a bailment of a thing to be used by the Hirer, for a compensation in money (2). If a Horse or Carriage be let out for Hire for the pur- pose of performing a particular journey, the partj'^ letting warrants that the Horse or Carriage, as it may be, is fit and proper and competent for such journey {e). And even if a particular Horse has been selected out of the owner's stables, it makes no difference, as it must be supposed that all are fit for their work {f). In contracts reciprocally beneficial to both parties, such as Hiring, &c., such care is exacted, as every pru- dent man commonly takes of his own goods ; and by consequence the Hirer is answerable for ordinary neg- lect {g). If therefore a man so treat and manage his Hired Horse as any prudent man would act towards his own Horse, he is not answerable for any damage the Horse may receive {li). Where the plaintiff declared that, at the defendant's request, he delivered a Mare to the defendant, to be pru- dently ridden, and the defendant injured her, it was held that he might plead his Infancy in bar, as the action was founded on a contract (z). k. Hirer is answerable at all events, if he keep the thing hned, after the stipulated time, or use it differently from his agreement (A). If a man Hire a Horse to go from A. to B., he ought to go by the usual road, and should not unnecessarily (c) Poole V. Lovguevill, 3 Wms. Saund. 290 : and see 2 Lutw. 1580 ; Gilb. Dist. 34, 2d ed. {d) Jones on Bailments, 118. (e) Per Pollock, C. B., Chew v. Jones, 10 L. T. 231 (Exch.) (/) Chew V.Jones, lOL.T. 231, 308. (g) Jones on Bailments, 25. (h) Cooper v. Barton, 3 Camp. 5, n. (?) Jennings v. Rundall, 8 D. & R. 335. {k) Jones on Bailments, 121. HIRING HORSES. 201 deviate from the usual and customary way. And if he make a material deviation, and any damage ensues, he would appear to be liable for it at all events (I). Where there has been no material deviation, and the Where negii- Horse has not been kept after any stipulated time, there ^^"^^ "^"^* must be positive proof of negligence, to fix the Hirer. ^P^°^^ For instance, if an action is brought against him for using a Hired Horse so negligently that it broke its knees, it vnll not be sufficient for the plaintiff merely to show that the Horse was a good Horse, and not in the habit of falling (w). If the Horse falls lame on the jounaey, the Hirer may where Horse abandon him at any place where he turns out unfit, and f^'^s lame, give notice of that fact to the party letting him out, whose duty it is to send for him (w). Where the strength of a Horse which has been Hired Where the or Borrowed is exhausted, and it has refused its feed, ^^^^^l ^^~ the Hirer or Borrower has no right to pursue his journey with it. This was so held in Bray v. Mayne (o), where a person had a Horse on trial for some days on condition that he should pay lOZ. for its hire if he did not like it. The Horse at that time had a slight cold, but on the last day of trial, after the Horse had been driven twenty miles, it was discovered that there was a swelling under its throat and it refused its feed. The defendant, how- ever, drove it on to London, which was about twelve miles further, notwithstanding that it was much distressed during part of the journey ,• and when brought to the plain tifif's stables, it was in much worse condition than Avhen delivered. A Veterinary Surgeon in his evidence said that he con- Where the sidered it a want of proper care and attention to compel Horse refuses a Horse to pursue its journey after it had been driven twenty miles, and had then refused its feed ; and Chief Justice Dallas directed the Jury accordingly (o). His Lordship also held that the defendant was not Where the entitled to return the Horse on payment of the 10/., Horse is re- because as the Horse, on being returned, was in a worse -v^-orse con- state than when originally delivered, the condition on dition. which it was delivered had not been fulfilled (o). {I) See Davis v. Garrett, 6 (n) Per Pollock, C. B., Bing. 716. Chew v. Jones, 10 L. T. 23 (m) Cooper v. Burton, 3 (Exch.) Camp. 5, n. (o) Bray v. Mayne, 1 Gow. 1. K5 202 CONTRACTS CONCERNING HORSES, &C. Expenses of curing Sick Horse, Where the Horse is im- properly doc- tored. Who must pay for shoe- Bailment de- termined by selling the goods. Where the Horse is stolen from the Hirer. If a Hired Horse is taken sick on the journey agreed upon, without the fault of the HireVy its cure is at the expense of the owner {cf). But if the Hirer prescribes medicines for it, he is an- swerable for any improper treatment, but not if he call in a Farrier. Thus where a Horse had been hired of the plaintiff by the defendant, who, on the Horse having been taken ill, prescribed improper medicines for it, and the Horse died. Lord Ellenborough said, " Had the de- fendant called in a Farrier, he would not have been answerable for the medicines tlie latter might have admi- nistered ; but when he prescribes himself, he assumes a new degree of responsibility ; and prescribing so impro- perly, I think he did not exercise that degree of care which might be expected from a prudent man towards his Horse, and was in consequence guiltj^ of a breach of the implied undertaking he entered into when he hired the Horse from the plaintiff (?•). Pothier says, that where a Horse is let to one on hire, to be kept by him for a certain period, the Hirer is to pay for his shoeino^ durino* that time. But that it is other- wise, if a person lets his Coach and Horses to another for a journey, to be driven by his own servants (s). A bailee of goods for hire, by selling them determines the bailment, and the bailor may maintain Trover against the purchaser, though the purchase was bo7id Jide {t). Thus where a person hired a Horse and sold it to a third party, it was held by Mr. Justice Bosanquet that the Owner might recover its value from the purchaser, although he had acted bond fide, and had given the Hirer the full value for it, as the Hirer could give him no better title than he got himself (m). If through the Hirer^s negligence, as by leaving the door of his stable open at night, the Horse be stolen, he must answer for it ; but not if he be robbed of it by highwaymen, unless by his imprudence he gave occasion to the robbery, as by travelling at unusual hours, or by taking: an unusual road. The Hirer is liable in the same {q) Pothier, Louage, p. 129; Story on Bailments, 258. (r) Dean v. Keate, 3 Camp. 4. («) See Pothier, Louage, p. 107, 129 ; Story on Bail- ments, 258. {t) Cooper V. Willomatt, 1 C. B. 672. (m) Shelly, Administratrix, v. Ford, 5 C. & P. 313 ; and see Stolen Horses, awfe, Chap. 3. HIRING HORSES. 203 way for the negligence of his servant when acting under his directions either express or implied (x). If a person get a Horse out of the possession of the Where the Owner under the pretence of hiring it, and then go and Horse is offer it for sale, there will be no Felony until the sale is Hirer, ^ actually effected. In the following case the prisoner was indicted for stealing a Horse and gig which he had hired of a Livery stable keeper in Stratford Mews, near Man- chester Square, London. It appeared that he drove it off to some distance, and offered it for sale at a small price to an Innkeeper, who, under pretence of getting him the money, procured a constable, and gave him into cus- tody {h). On the trial Pear's case {y), Charlewood's case (z), and Semple's case (a) were referred to, and the following passage from the latter quoted : — " But on the other hand, if the hiring was only a pretence made use of to get the Chaise out of the possession of the owner, without any intention to restore it, or to pay for it, in that case the law supposes the possession still to reside with the owner, though the property itself has gone out of his hands, and then the subsequent conversion will he the Felony. ''' And Chief Justice Tindal said, " This case comes near to many of those which have decided that the appropria- tion of property, under circumstances in some degree similar to the present, amounts to Larceny. However, there has been no actual conversion of the property, but only an offer to sell ; therefore the prisoner must be ac- quitted {b).'' If the Owner parts with the possession of a Horse for Must have a special purpose, and the bailee, when that purpose is ^^^" origin- executed, neglects to return it, and afterwards disposes of ^ith a fe"o- it ; if he had not a felonious intention when he originally nious iiiten- took it, his subsequent withholding and disposing of it *^°°* will not constitute a new felonious taking, or make him guilty of Felony (c). Of course a person is liable to pay for Horses used by Horse hired himself and hired on his behalf by his servant. Thus if ^^ ^ servant. (a;) Jones on Bailments, 88. (a) Semple's case, 1 Leach, {y) Pear's case, 1 Leach, 420. 212. (6) Reg. v. Brooks, 8 C. & (z) Charlewood' s case, 1 P. 295. Leach, 409. (c) Rex v. Bariks, R. & R. . 441. 204 Owner's lia- ■failitj' in case of accident. Horses driven by the Owner's servants. Horses driven by the Owner's servants to a certain place. CONTRACTS CONCERNING HORSES, &C. a coachman go in his master's livery, and hire Horses, which his master uses, the master will be bound to pay for the hire of the Horses, though he has agreed with the coachman that he will pay him a large salary to provide Horses, unless the person letting the Horses had some Notice that tlie coacliman hired them on his own account and not for his master (d). In general the Owner of a Horse is liable for any accident which may befal it when fairly used by the Hirer, Thus whei*e a Carriage is let for hire, and it breaks down on the journey, the person who lets it is liable, and not the Hirer (e). And we shall see in a va- riety of cases, what are the circumstances under which Owners have been held liable for damage, inflicted through the negligent use of Carriages or Horses they have let for hire. If a man hire a Carriage and any number of Horses, and tlie Owner send with him his postillion or coachman, the Hirer is discharged from all attention to the Horses, and remains obliged only to take ordinary care of the glasses and inside of the carriage while he sits in it, and he is not answerable for any damage done by the negli- gence of the Owner^s servants (_/). Where Horses are hired to draw a private carriage to a certain place, and they are driven by the Owner's ser- vants, the Owner is liable for any damage done through the servants' negligence. For where a person hired Horses to take his oa\ti carriage to Epsom, and he was driven by the Owner's postboys. Lord Ellenborough held that a person who hires Horses under such circum- stances has not the entire management and power over them, but that they continue under the control and power of the servants who are entrusted with the driving ; and that the Owner of them would be answerable for any accident occasioned by the postboys' misconduct on the road ; and his Lordship mentioned a case of the kind, in which damages w ere recovered against the Owner of a Chaise for an injury done by it when Mr. Burton, a Welsh Judge, was in it, and who was called as a wit- ness {g). (d) Rimell v. Sampayo, 1 C. & P. 254. {e) Sutton v. Temple, 12 M. & w. m. (/) Jones on Bailments, 88 ; Samuel v. Wright, 5 Esp. 263 ; Smith v. Lawrence, 2 M. & R. 1. (g) Dean v. Branthwaite, 5 Esp. 35 ; and quoted by Mr. Justice Littledale in Laugher v. Pointer, 5 B. & C. 558. HIRING HORSES. 205 And where Horses were hired to draw a private Car- riage to Windsor, the Owner of the Horses was held liable for damage done, because they were under the care and direction of his servant (h). And in the case of Sir Henry Hoghton(z), Horses were Travelling hired by him to draw his Carriage, travelling post, and P"^^- he was held not to be answerable for damage which had been done. But where Horses have been hired to be driven about Horses by the Owner's servant wherever the Hirer pleases, and ^"^^"b^^t'h * for which he gives him some gratuity, there seems at one Owner's^ ser^ time to have been a difference of opinion among the ^ant. Judges as to the party liable for injury done. In Laugher v. Pointer (k), where the able Judgments Laugher v. on both sides, as is observed by Mr. Justice Story in his ^°^"^^- book on Agency, '' exhausted the whole learning of the subject,'' the Judges of the Court of King's Bench were equally divided. Chief Justice Abbott and Mr. Justice Littledale holding that the Hirer of the Horses was not liable for an injury done, and Mr. Justice Bayley and Mr. Justice Holroyd being of the contrary opinion. In the case of Quarman v. Burnett {I), the owners of Owner held the carriage had always been driven by the same driver, q^^^®^° he being the only regular coachman in the employ of the Burnett! ^ Owner of the Horses, who paid him regular weekly wages. The Owners of the carriage paid him 2s. a drive, and provided him with livery, which he left at their house at the end of each drive. Mr. Baron Parke said, " It appears to us that there are no special circum- stances which distinguish the present case, and that we must decide the difference between the Judges in Laugher V. Pointer (m). There is no satisfactory evidence of any selection by which this man was made the defendant's sers^ant ; the question is therefore the same as in that case. If the driver be the servant of a Jobmaster, we do not think he ceases to be so by reason of the owner of the carriage preferring to be driven by that particular ser- vant, where there is a choice amongst more, any more than a hack postboy ceases to be the servant of an Inn- {h) Samuel v. Wright, 5 B. & C. 558. Esp. 263. {I) Quarman v. Burnett, 6 (i) Sir H. Hoghton's case, M. & W. 499. cited 5 B. & C. 556. (m) Laugher v. Pointer, 5 (/f) Laugher v. Pointer, 5 B. & C. 547. 206 Wearing the Hirer's li- very. CONTRACTS CONCERNING HORSES, &C. keeper, where a traveller has a particular preference to one over the rest, on account of his sobriety and careful- ness. If indeed the defendants had insisted upon the Horses being driven not by one of the regular servants, but by a stranger to the Jobmaster, appointed by them- selves, it would have made all the difference." " The fact of the coachman wearing the defendants' livery with theii- consent, and so being the means of in- ducing third persons to believe that he was their servant, was mentioned in the course of argument as a ground of liability, but cannot affect our decision. If the defend- ants had told the plaintiff that he might sell goods to their livery servant, and had induced him to contract with the coachman, on the footing of his really being such servant, they would have been liable on such con- ti'act ; but this representation can only conclude the de- fendants with respect to those who have altered their condition on the faith of its being true. In the present case it is matter of evidence only of the man being their servant, which the fact at once answers. We have fully considered the judgments on both sides in Laugher v. Pointer {m), and think that the weight of authority and legal principle is in favour of the view taken by Lord Tenterden {n) and Mr. Justice Littledale." A person Jobbing a Carriage by the 3^ear under a written agreement, by which the owner binds himself " to keep the same in perfect repair without any further charges whatever," is not liable for repairs made neces- sary by accident. And in a case where the owner had so bound himself. Lord Denman said, " Looking at the terms of the agreement, it seems to me that the only case in which the defendant could be subjected to the expense of repairs is the case of damage happening tlirough the icilful default of the defendant. Witli regard to the evi- dence of the usage of the trade, the language of the agree- ment between the parties being clear and unequivocal, evidence as to the general usage of the trade cannot be of any avail (o)." Where the The Hirer of a Horse or Carriage is liable for damage Hirer is liahle occasioned by the negligence of himself or his servant; for damage. ^^^ where two persons hu-e a Carriage, they are both A Jobmas- ter's Agree- ment. {m) Laugher v. Pointer, 5 B. & C. 547. (n) ThenChief Justice Ab- bott (o) Reading v. M. & Rob. 234. Menham, 1. HIRING HORSES. 207 answerable for any damage occasioned by the negligent di'iving of one of them ; but if it be hired by one only, the other, who is a mere passenger, is not liable {p). It is undoubtedly true that there may be special cir- Hirer liable cumstances which may render the Hirer of Job Horses ow'^n^onduct. and Servants responsible for the neglect of a Servant, though not liable by virtue of the general relation of master and servant. Thus, he may become so by his own conduct, as by taking the actual management of the Horses, or ordering the Sei-vant to drive in a particular manner which occasions the damage complained of (5'). When a Master and Servant are together in a Car- Hirer liable riage, and an injury ensues, the Master, from his mere ^^^f ^ ^ presence, is a co-trespasser, if the act of the Servant controlled his amount to a trespass {r). And on this principle where a Servant. Carriage and Horses are hired, and the postboys are ser- vants of the owner ; if the Hirer be sitting outside, and have a view of their proceedings, and do not interfere to prevent their misconduct, and an injury ensues, he is a co-trespasser with them, because as he did not endeavour to stop their improper proceedings he has adopted their conduct as his own. The Court of Common Pleas entered fully into the M'LaughUn subject, and laid down the law upon it in the case of ^' ^''y°^- McLaughlin v. Pryor{s), in which a trespass had been committed by a Carriage and Horses hhed by the de- fendant driving against the plaintiff's gig. It appeared that the defendant and seven others were drivins^ in a Carriage and four, wdth two postillions, to Epsom races on the 3rd of June, 1840. The defendant with another party sat upon the box. The Carriage was not in the line of the vehicles which were going through the turn- pike at Sutton, and as it approached the toll-bar the postillions endeavoured to get into that line, in order that they might pass through the gate. The plaintiff ax^di a friend of his, Mr. Mason, w^ere driving in a small gig at that particular place where the postillions attempted to fall into the line. The man on the wheel Horses said to the other postillion, '' Break in, you are all right there," and upon doing this the trace of the leaders of the Car- (/)) Davy v. Chamierlayne, (r) Chandler v. Broughton, 4 Esp. 229. 1 Cr. & M. 229. {q) Per Parke, Baron, (s) M'LaughUn v. Pryor, 1 Quarman v. Burnett, 6 M. & C. & Marsh. 354; 6'. C. 4 Scott, W. 499. N. R. Qab ; 4 M. & G. 48. 208 CONTRACTS CONCERNING HORSES, &C. Opinion of the Court of Common Pleas. The General Rule. riage caught the wheel of the plaintiff's gig ; the gig was upset, and the plaintiff was injured and rendered lame for life. Immediately before the accident the defendant called out to his postillions to let the plaintiff's gig pass first, but the order then came too late. As soon as the accident had occurred the Carriage was stopped and the owner's name demanded ; whereupon the defendant, in order to prevent his party being detained, offered money to the parties, and eventually gave his card. On the part of the defendant it was objected, that, even assuming that the fault lay with the drivers of the Carriage, the defendant was not responsible, neither the Horses nor the Carriage being his ; or, at all events, that he was not liable in Trespass. Chief Justice Tindal left it to the Jury to say whether the accident was the result of want of skill or caution on the part of the drivers of the Carriage, or on the part of the owner of the gig — re- serving it for the Court of Common Pleas to say whether, upon the facts proved, the defendant was liable in this form of action — the Jury returned a verdict for the plaintiff. The Court of Common Pleas discharged the defendant's rule nisi for a nonsuit, and Chief Justice Tindal said, " Undoubtedly the cases in which the Hirer of a glass- coach or a post-chaise has been held not to be responsible for the act of the driver, depend upon grounds wholly different from those on which the liability of the defendant on this occasion is to be sustained. It has always been held that the Hirer of the Carriage, having no power of selection, no foreknowledge of the character of the driver, is not responsible for any negligence or want of skill or experience on his part ; for that it is the duty of the party who lets, to exercise care and caution in the selection of those to whom lie entrusts the government and direction of his Horses and his Carriage. But here the question is, whether the evidence did not show that this defendant so conducted himself as to be liable as a co-trespasser with the postillions whose conduct has given rise to this inquiry." *' The General Rule is, that all who are present, and who from the circumstances may be presumed to be assenting to the wrongful act, are trespassers. In Trespass all are principals. I think there was abundant evidence to jus- tify the Jury in coming to the conclusion they did. In the first place the defendant was present, sitting on the HIRING HORSES. 209 box of the Carriage ; and when he saw that the Carriage was out of the line, he must have known that the post- hoys intended to get into it again whenever they found an opportunity, so as to be enabled to pass through the toll-gate." " Had the defendant at that time expostulated, I hesi- where the tate not to say that he would not have been a trespasser, ■^'^l'^^°H|f whatever might have ensued ; for no servant can against his master's will make him a trespasser by any "\\Tongfal act of his. Had he expressed any, the slightest, disap- probation of the course the postboys were evidently pur- suing, he would have escaped all liability ; or if the defendant and his friends had all been inside the Car- riage, so that they could not be supposed to be well aware of what was going on, the plaintiff must have sought his remedy elsewhere." " But being, or some of them being, on the outside, Hirer sitting and seeing the improper manner in which the postboys '^l^^ ^ were endeavouring to get on, and, though not actually encouraging them in their unlawful course, yet abstain- ing from all interposition to restrain them, this, though not very strong, certainly was soine evidence whence the Jury might properly infer that the defendant assented to that course. But the evidence does not stop there ; for the defendant, some time after the accident, in a con- versation with one of the witnesses, said that he intended to have stopped when the Carriage had established itself in the line, and allowed the gig to regain its place. Now that remark showed pretty strongly that the defendant was exercising control over the motions of the postboys, and was an assenting party to their act. I therefore think the defendant, the dominus pro tempore, being pre- sent and seeing what was going on, and not interfering to prevent the mischief, must be taken to have been an assenting party ; and that this case falls within the prin- ciple laid down in Gregory v. Piper {t) and Chandler v. Broughton(u), in which latter case it was held that where master and servant are together in a Vehicle, and an ac- cident occurs, from which an immediate injury ensues, the master is liable in Trespass and not in Case, although the servant was driving, and not only no evidence was given on the part of the plaintiff of any interference on (t) Gregory v. Piper, 9 B. (m) Chandler v. Broughton, & C. 591 ; 4 M. & R. 500. 1 C. & M. 29. 210 The Jury must decide whether the servant is acting for the Hirer or Owner. A Hirer's agreement. CONTRACTS CONCERNING HORSES, &C. the master's part, but the evidence on the part of the defendant distinctly negatives any interference ; so that the mere presence of the master with the servant will constitute him a trespasser, if the act of the servant amount to a trespass. Upon the whole, therefore, in this case, I think the Jury may have come justly to the con- clusion that the defendant was a co-trespasser with the postboys." And in this Decision Coltman, Erskine and Cresswell, Justices, concurred {x). It is always a question for the Jury whether the driver is acting as servant for the Hirer or Owner ; and Lord Abinger, in leaving that point to the Jury, observed, " that no satisfactory line could be drawn, at which, as a matter of law, the general owner of a carriage, or rather the general employer of a driver, ceased to be responsible, and the temporary Hirer to become so, each case of this class must depend upon its own circum- stances (y)." A Hirer may of course, by agreement, make himself answerable for accidents. Thus in the following case it appeared that a man who let out Horses to hire told a person who applied to him for one, that he had no Horse at home but a black one which shied, and that if he took it on hire he must be answ^erable for all accidents. The Horse was engaged for six weeks at a certain price, and it appeared that whilst it was in the Hirer's possession it came down upon the road in consequence .of shying, and suffered a material injury in having its fetlock severely cut by a glass bottle. The Owner of the Horse brought an action against the Hirer on his agreement, and the latter w^as held answerable for the damage done {z). Lending for use. What care is required. BORROWING HORSES. Lending for use is a bailment of a thing for a certain time when used by the Borrower without paying for it {a). In conti*acts from which a benefit accrues only to him who has the goods in his custody, as in that of lending for use, an extraordinary degree of care is demanded, {x) McLaughlin v. Pry or, 1 C. & Marsh. 354 ; S.C. 4 Scott, N. R. 655 ; 4 M. & G. 48. («/) Brady v. Giles, 1 M. & Rob. 496. {z) Jeffery v. Walton, 1 Stark. N. P. C. 267. (a) Jones on Bailments, 118. i Horse for sale. BORROWING HORSES. 211 and the Borrower is therefore responsible for slight neg- ligence {b). But if the lender was not deceived, but perfectly knew As much as the quality as well as age of the Borrower, he must be JcapaSH^ supposed to have demanded no higher cai-e than that of bestowing, which such a person was capable ; as if a person lend a fine Horse to a raw youth, he cannot exact the same degree of management and circumspection as he would expect from a riding master or an officer of dragoons (c). Where a person rides a Horse gratuitously at the Showing a Owner's request, for the purpose oi showing him for sale, " he is bound in so doing to use such skill as he actually possesses, or such as may be implied from his profession or situation, and he is equally liable with a Borrower for injury done to the Horse while ridden by him. In a case tried before Mr. Baron Rolfe, it appeared that the plain- tiff had entrusted a Horse to the defendant, requesting him to ride it to Peckham, for the purpose of showing it for sale to a Mr. Margetson. The defendant accordingly rode the Horse to Peckham, and, for tlie purpose of shomng it, took it into the East Surrey Race Ground, where Mr. Margetson was engaged with others playing at cricket ; and there, in consequence of the slippery na- ture of the gi-ound, the Horse slipt and fell several times, and in falling broke one of his knees. It was proved that the defendant was a person conversant with and skilled in Horses. The learned Judge, in summing up, left it to the Jury to say whether the nature of the ground was such as to render it a matter of culpable negligence in the defendant to ride the Horse there ; and told them, that under the circumstances, the defendant being shown to be a person skilled in the management of Horses, was bound to take as much care of the Horse as if he had boiTOwed it ; and that if they thought the defendant had been negligent in going upon the ground where the injury was done, or had ridden the Horse carelessly there, they ought to find for the plaintiff, which they did. The Court of Exchequer refused a rule for a new trial applied for on the ground of misdu'ection. Lord Abinger, C. B., saying, " We must take the summing up altogether; (&) Jones on Bailments, 65. quod interest, p. 185; Story (c) Jones on Bailments, 65; on Bailments, 161. Dumoulin's Tract. — De eo 212 A gratuitous bailee. Use strictly personal. Cannot be used by a servant. Must be used according to the lending. CONTRACTS CONCERNING HORSES, &C. and all it amounts to is, that the defendant was bound to use such skill and management as he really possessed. Whether he did so or not, was, as it appears to me, the proper question for the Jury." And Mr. Baron Parke said, *' The defendant was shown to be a person conversant with Horses, and was therefore bound to use such care and skill as a person conversant with Horses might reasonably be expected to use ; if he did not he was guilty of negligence." And Mr. Baron Rolfe said, " The distinction I intended to make between this case and that of a borrower is, that a Gratuitous bailee is only bound to exercise such skill as he possesses, whereas a Hirer or Borrower may reason- ably be taken to represent to the party who lets or from whom he borrows, that he is a person of competent skill. If a person more skilled, knows that to be dangerous which another not so skilled as he, does not, surely that makes a difference in the liability. I said I could see no difference between negligence and gross negligence — that it Avas the same thing with the addition of a vituperative epithet (c?)." In cases of mere gratuitous loan, the use is to be deemed strictly a personal favour and confined to the Borrower, unless a more extensive use can be implied from other circumstances ; such for instance as lending the Horse on trial. In general it may be said, in the absence of all controlling circumstances, that the use intended by the parties is the natural and ordinary use for which the thing is adapted (e). A borrowed Horse cannot be used by a servant. Thus where an action of Trespass was brought for immoderately riding the plaintiff's Horse, it appeared that the defendant had borrowed the animal, and that he and his servant had ridden it by turns. It was held that the licence was an- nexed to the person of the defendant, and could not be communicated to another {f). If a Horse or Cart, or such other thing as may be used and delivered again, be used according to the purpose for which they are lent and they perish, he who owns them must bear the loss, if they perish not through default of {d) Wilson V. Brett, 11 M. & W. 113. (e) Story on Bailments, 161 ; and Lord Camoys v. Scurr, 9 C. & P. 386. (/) Brivgloe v. Morrice, 1 Mod. R. 210; S. a 3 Salk. 271. BORROWING HORSES. 213 him who borrowed them, or he made a promise at the time of delivering to redeliver them safe again {g). But if they be used in any other manner than accord- Or else the mg to the lending, in whatever manner they may perish, Borrower is if it be iwt by default of the Owner, the Borrower is chargeable both in law and conscience (^). Thus, if the Borroiver, instead of coming to London, for which pur- pose the Horse was lent, go towards Bath, or having borrowed him for a week, keep him for a month, be be- comes responsible for any accident that may befall the Horse in his journey to Bath, or after the expu-ation of the week(^). In regard to time, if no particular time is fixed, a rea- Where no sonable time must be intended, keeping in view the objects t™^ is fixed of the bailment. If a Horse is lent for a journey, it is °^^^*"''"- presumed to be a loan for the ordinary time consumed in such a journey, making proper allowance for the ordinary delays and the ordinary objects of such a journey (i). But where the Borrower of a Horse promised to re- Redelivery deliver it on request, and the Horse died without his °" request, default before request, he was held not liable {k). A party who boiTows a Horse is bound to feed it Borrower during the time of the loan(/) ; and if it is returned out bound to feed of condition, the Borrower would probably be called * ® '''^^^" upon to prove that he fed it properly, and that the fall- ing off in condition did not arise from any neglect on his part (m). Where the Horse is exhausted and refuses his feed, he Where the must not be ridden or driven any further {n). Horse is ex- If a man through his own imprudence has his borrowed ,„ Horse killed, by robbers for instance, or by a ruinous Horse is House or Stable in manifest danger of falling coming on killed, to his head, the Owner is entitled to the price of the Horse, but not if the House or Stable were in good con- dition, and fell by the violence of a sudden hurricane {p). (g) Noy's Maxims, 91. nom. Williams v. Hill, Palm, (j^) Jones on Bailments, 68; 548. Coggs V. Bernard, Ld. Raym. (/) Handford v. Palmer, 2B. 1 915; 2 Ld. Raym. 909; 3 & Ring. 359. ! Bract, c. 2, s. 1. (m) Bray v. Mayne, lGow,l. ' (i) Story on Bailments, (n) Ibid. ; and see Hiring '. 161. Horses, ante. (k) Williams v. Lloyd, Jones (o) Jones on Bailments, 68. on Bailments, 179 ; S. C. 214 CONTRACTS CONCERNING HORSES, &C. Where the Horse dies from disease Where Bor- rower is an- swerable for damage. Bailment ended by misuser. Where a borrowed Horse dies from disease, the Bor- rower is not answerable. Thus in Williams v. Hide et uxor{p) the plaintiiF declared that in consideration he had lent to the defendant's wife, dum sola, a Horse to be returned upon request, she promised to return it upon re- quest, but had not done so. The defendants pleaded that, before the request, the Horse J9er diver sos morhos in cor- pore suo crescentes moritur, and so they could not re- deliver it. Upon demurrer the defendants had Judgment ; for, where the agreement is possible when made, but afterwards becomes impossible by the act of God, the party is for ever discharged. A person borrowing a Horse or Carriage is answerable for any damage occasioned by negligent management, whether done by himself or another person in driving (g). The Rule is, that when there has been a misuser of the thing lent, as by its destruction or otherwise, there is an end of the bailment, and an action of Trover is maintain- able for the conversion (r). (p) Williams v. Hide et Uxor, Palm. 548 ; cited in Powell v. Salisbury, 2 Y. & J. 394. (q) Wheatley v. Patrick, 2 M. & W. 650 ; and see Hir- ing Horses, ante. (r) See per Pollock, C. B., Bryant v. Wardell, 2 Exch. 482. ( 215 ) CHAPTER XII. CARRYING HORSES. A Common Carrier 215 Bound to carry Goods . . id. For reasonable Charges 216 Conveyance of Horses, Sfc. by Railway Companies, id. Defects in Carriages .... id. A Special Contract id. Law now settled id. A practical injustice »'. . 217 Decision of the Court of Common Pleas id. Decision of the Court of Queen's Bench id. Decision of the Court of Exchequer 217 Opinion of Mr. Baron Piatt 218 Dictum of Mr. Baron Parke id. Enforcement of Common Law Obligation id. Chattel to be carried to a particular Place id. A Ferryman 219 Measure of Damages .... id. CARRYING HORSES. A Common Carrier is a person who undertakes for hire A Common to transport from place to place, either by land or water, ^^^^i^r* the goods of such persons as think fit to employ him {a). And Railway Companies are Common Carriers, unless exempt by some special provision (b). A Common Carrier is bound to convey the goods of Bound to any person who offers to pay his hire, unless his carriage '^^"^ goods, be already full, or the risk sought to be imposed upon him be extraordinary, or unless the goods be of a sort {a) Coggs V. Bernard, 1 ; Smith's L. C 101a; Trent i and Mersey Navigationv. Wood, 3 Esp. 127 ; S.C. 4: Doug. 287. (b) Coggs V. Bernard, 1 . Smith's L. C. 101 a ; Palmer V. Grand Junction Canal Com- pany, 4 M. & W. 749 ; Pick- ford V. Grand Junction Rail- way Company, 10 M. & W. 399 ; Parker v. Great Western Railway Company, 7 Scott, N. R. 835. 216 CONTRACTS CONCERNING HORSES, &C. For reason- able Charges Conveyance of Horses, &c. by Rail- way. Defects in carriages. A special contract. Law now settled. which he cannot convey, or which he is not in the habit of conveying (c). All Common Carriers must carry goods for reasonable charges, and consequently not take more from one than from another for the same service. Therefore one cus- tomer or class of customers cannot be charged more than another customer or class of customers, or the public generally (c). As all Railway Companies profess to convey Horses and Carriages, and advertise the mode in which they un- dertake to do it, they are no doubt bound in the same way with respect to these, as to any ordinary description of goods (cZ). Railway Companies, being Common Camers, arepnmd facie liable at common law for defects in their Carriages or Trucks, by Avhich damage accrues to the goods entrusted to them to carry. A contract entered into with a Common Can-ier, by the party who delivers goods to be conveyed, by which contract the Carrier is exempted from all liability for any loss occasioned by his negligence, is binding upon both parties (e). At one period there was a disposition in our Courts to hold, that Common Carriers could not by their Notices shake off their common law responsibility ; but Mr. Jus- tice Story says (f): — "The right of making such qualified acceptances by Common Carriers seems to have been asserted in early times. Lord Coke declared it in a note to Southcote' s case {g), and it was admitted in Morse V. Slue (h). It is now fully recognized and settled be- yond any reasonable doubt in England." For this asser- tion he cites a number of authorities, and the Court of Common Pleas held that he had arrived at a correct con- clusion (i). (c) See Coggs v. Bernard, 1 Smith, L. C. 101 b ; Chit. Contr. 4th ed. 417 ; Pickford V. Grand Junction Railway Company, 10 M. & W. 399 ; Parker v. Great Western Rail- way Company, 7 Scott, N. R. 835. (d) As to extraordinary traffic, see Taff Vale Railway Company v. Giles, 2 Weekly Rep. 57 (Exch. Chamb.) {e) Carr v. Lancashire and Yorkshire Railway Company, 7 Exch. 707. (/) Story on Bailments, 549. {g) Southcote' s case, 4Rep.83. (h) Morse v. Slue, 1 Vent. 238. (i) See Judgment of Court of C. P., Austin V.Manchester, CARRYING HORSES. 217 This doctrine is taken advantage of to the utmost bj' A practical Railway Companies, who now Irniit their liability by injustice. Ticket, and not being subject to the same competition as Carriers conveying goods along an ordinary highway, much practical injustice has consequently been perpe- trated. _ Thus where a Railway Company letting trucks for Decision of hire, for the conveyance of Horses, delivered to the ^^^ c°urt of owner of the Horses a Ticket, in which it was stated that p?e"aT''" the owners were to undertake "a// risks of injui-y hy conveyance and other contingencies,'' and further stipu- lated that the Company would not be liable "/or any damages^ however caused, to Horses or Cattle,'' it was held by the Court of Common Pleas that the owner of the Horses could not recover for damage done to them through the breaking of an axle, which was attributable to the ''gross and culpable negligence" of the Company's servants {K). And in another case, a truck was so defectively con- Decision of structed as to be unfit and unsafe for the conveyance of ^^^ ^o^it of cattle, which, in consequence of its breaking, were injured BeS'^ during the journey. The owner of the cattle, however, had signed a Ticket containing the following clause:— '^ This Ticket is issued subject to the owner undertaking all risks of conveyance whatever, as the Company will^ot be liable for any injury or damage, however caused, and occurring to live Stock of any description ti-avelling upon the L. and Y. Railway, or in their vehicles." It was held by the Court of Queen's Bench, that there was no implied stipulation that the truck should be fit for the conveyance of cattle, and that the Company were pro- tected by the terms of the Ticket h-om liability to the plaintiff for the damage done to the cattle (Z ), So also in the latest case which was decided in the Decision of Court of Exchequer, a Notice at the foot of the Ticket or ^^^ ^°"^* «f Way-Bdl of a Railway Company for the conveyance of ^""^^^i^^^- a Horse was as follows :— '' This Ticket is issued subject to the owner's undertaking all risks of conveyance what- soever, as the Company will not be responsible for any \Sheffield and Lincolnshire Rail- watj Company, 21 L. J. 179 \way Company, 21 L. J. 183 (C. P.) ,(C- P-) {I) Chippendale V.Lancashire (k) Austin v. Manchester, and Yorkshire Railway Corn- Sheffield and Lincolnshire Rail- pany, 21 L. J. 22 (Q. B.) 218 CONTRACTS CONCERNING HORSES, &C. Opinion of Mr. Baron Piatt. Dictum of Mr. Baron Parlie. Enforcement of common law obliga- tion. Chattel to be carried to a particular place. injury or damage (howsoever caused) occurring to live StocK of any description travelling upon the L. and Y. Railway, or in their vehicles." The Horse was kiUed hj a collision occasioned by the gross negligence of the Company's servants. It Avas, however, held that the defendants had engaged to carry the Horse under a special contract, the terms of which were contained in the Notice, and that therefore the Company were not liable (m). Mr. Baron Piatt, however, thought that this was a sort of gross negligence, not pointed at by the Ticket, and was not satisfied that it absolved the Company from liability for damage. He also said, " I cannot help thinking that the owner of the goods never dreamed of such a thing when he signed the contract. In truth, this accident had nothing to do with the conveyance of the Horse (n)." Mr. Baron Parke said, " If any inconvenience should arise from such contracts being entered into, this is not a matter for our interference ; but it must be left to the Legislature, who may, if they please, put a stop to this mode which the Carriers have adopted of limiting their liability (o)." Where a Railway Company refuse to carry a Horse, unless a Ticket be signed so as to free them from liability in case of gross neo;lio:ence, the owner ought to enforce their obligation as common Carriers. He should tender a reasonable compensation for the carriage of the animal, and upon theu- refusing to receive it, sue them upon their common law liability ( p). If Carriers receive a chattel to carry to a particular place, they must be said to have the carrying of it to the end of the journey, whether they themselves carry it aU the way or not. Therefore any parties to whom they may hand it over are their agents, and they are clearly liable, unless the facts show that their responsibility has determined (q). (m) Carr v. Lancashire and Yorkshire Railway Company, 7 Exch. 707 ; see also Mor- ville V. Great Northern Railway Company, 19 L. T. 140. (Q. B.) («) Carr v. Lancashire and Yorkshire Railway Company, 7 Exch. 715. (o) Carr v. Lancashire and Yorkshire Railway Company, 7 Exch. 714. (p) See per Parke, B., Carr v. Lancashire and York- shire Railway Company, 7 Exch. 709. (q) Muschamp v. Lancaster CARRYING HORSES. 219 A Ferryman is bound not only to provide a safe mode A Fenyman. of conveyance, but also proper means for the embarkation and landing of the animals carried by him. The defend- ants, lessees of a Ferry over the river Mersey, ran Steam Boats across for the conveyance of passengers and goods for hire. They also carried animals, but it was not their practice to take charge of the animals when on board. The plaintiff having paid his usual fare led his Mare on board at one side of the river, and remained with her until the Steam Boat reached the other side. For landing the passengers and animals the defendants had provided a moveable slip leading from the boat to a landing barge. The slip had a handrail, which had been twice recently, to the defendants' knowledge, broken by the pressure of a Horse on landing ; and in the handrail was an iron spike, which appeared whenever the rail gave way. The defendants had also been cautioned that the slip was un- safe. They notwithstanding continued to use the slip, leaving the broken rail slightly tied up, so that it ap- peared sound. Over this slip the plaintiff proceeded to lead his INIare towards the shore ; but she forced against the rail, which immediately gave way, and the iron spike concealed in it injured her severely. It was held that they were bound not only to find a good boat, but also a good slip, and therefrom so to bridge over the space between the boat and the land as to pro^dde means for o-ettino^ from one to the other. And that althoug^h the Mare was under the control and management of the plaintiff, they were liable for the injury to her in con- sequence of theii* culpable negligence in allowing an im- proper slip to be used (r). The Damages to be paid will no doubt be the value of Damages, the animal if it be killed, or the loss on the sale if it be injured. But if Horses or cattle are killed or injured on their way to an Agricultural Show, the chance of ob- taining a Prize is too remote a ground for Damages (s). and Preston Junction Railway (r) Willoughby v. Horridge, Company, 8 M. & W. 421 ; 22 L. J. 90 (C. P.) Watson V. Ambergate, Not- (s) Watson v. Ambergate, tingham and Boston Railway Nottingham and Boston Rail- C mpany, 15 Jur. 448. way Company, 15 Jur. 448. l2 ( 220 ) PART II. NEGLIGENCE IN THE USE OF HORSES, &c. CHAPTER I. THE CRIMINAL AND CI /IL LIABILITIES OF PAR- TIES FOR INJURIES INFLICTED OR INCURRED IN DRIVING, ALSO THE RULE OF THE ROAD, AND NEGLIGENT DRIVING BY A SERVANT. Negligent Driving. Where kiUing a Person is held to be Murder 222 Where kiUing a Person is held to be Manslaughter id. Furious Driving id. Carriages racing id. Driver unable to pull up.. 223 Where killing a Person is held to be Accidental Death id. Jnd the Driver is not liable id. Trotting a Waggon along a Road 224 Trotting a Waggon along a Street id. Remarks in East's Pleas of the Crown id. Where Streets are unusu- ally crowded id. Where Driver is indict- able under 1 Geo. 4, c. 4 225 Furious Driving in the Metropolitan PoliceDis- trict id. Power of Police Constables 225 Conviction no bar to Action of Trespass id. Where Party injured by negligent Driving may maintain an Action . . . id. Action lies for Negligence in the care of vicious Horses, 8fc id. Where another Person strikes a Horse id. Damages recovered in Trespass 226 Driving furiously round a Corner id. Mail Cart rapidly entering Post Office Yard id. Frightening a Horse .... id. Horses run over on a Rail' way c 227 Rules as to Civil Liability id. Negligence on one Side only 228 Passenger thrown from an Omnibus 229 Horse and Cart left stand- ing in the Street id. XEGLIGEXT DRIYIXG. 221 Damage from Tackle breaking 229 Or from Defect in the Car- riage id. Negligence on both sides 230 Where the Negligence of the injured Party did not contribute to the Ac- cident id. Where such Negligence occasioned part of the Mischief id. A Wrongdoer not without the pale of the Law . . id. Driving against an Ass fettered on the Road . . id. Question of ordinary Care 231 Circumstances of the Case must be left to the Jury id. Horse injured in being led out of the Stable . . id. Horse and Cart left in the Street .. 232 Judgment of the Court of Queen'' s Bench id. A Heap left on a Highway 236 Opportunity of seeing the Obstruction id. Running over Stones at Night id. Leaving the Highway ... id. Liability of a Contractor. 237 Where there are several ways of doing a Thing, id. Liability of an Employer, id. What is the Question in all Cases id. Stones left by a Sub-Co7i- tractor id. Performance of an ordi- nary Domestic Duty . . 238 Manure left on a Road . . id. Both Parties to blame . . id. Case of Thorogood v. Biyan 239 Remark in Smith's Lead- ing Cases id. Power of Selection id. Altogether an Accident 240 Runiiing over a Person at Night id. Horse running away .... 241 Rule of the Road. Right Side of the Road. . id. Driving on the wrong Side in the dark id. Seeing a Person coming on his wrong Side id. Does not justify a wanton Injury id. Rule of the Road not in- flexible 242 Parties meeting on a sud- den id. Rule of the Road applies to Saddle Horses id. Foot Passengers 243 Rule of the Road does not apply id. Going over a Crossing . . id. Nuisance on Public High- way id. Horse and Carriage before Tradesman's Door .... 244 Negligent Driving by a Servant. When the Master is liable id. Master and Servant driv- ing together id. Servant entrusting the Reins to a Stranger. . . id. Servant striking the Horse of another 245 Servant removing an Ob- struction id. Servant acting improperly id. Making a Detour for his oiun Purposes id. Servant acting contrary to his trust 246 Taking his Master's Horse without Leave id. Taking the Horse of ano- ther id. 222 NEGLIGENCE IN THE USE OF HORSES, &C. Master' s Name on the Cart 247 Giving an Address id. Action for bodily hurt .. id. Liability of Master and Servant respectively . . id. Action by Representatives of a Person killed .... id. Plan of the Locality .... 248 Damages id. Responsibility for " all possible Consequences." 248 Injury done to a Carriage id. Measure of Damages where a Horse has been injured id. Damages where a Person has been killed 249 Where kill- ing a person is held to be Murder. Where kill- ing a person is held to be Manslaugh- ter. Furious driving. Carriages racing. NEGLIGENT DRIVING. If a man rides recklessly a wild Horse into a crowd, and kills a person, it will be Murder, in the same way as it lias been so held when bricks were thrown from the top of a House into a thoroughfare, and killed a person («). If a person driving a Carriage happens to kill another, and he saw or had timely notice of the mischief likely to ensue, and yet wilfully di'ove on, it will be Murder ; for the presumption of malice arises from the doing a dan- gerous act intentionally, and " there is the heart regard- less of social duty(Z>)." If the driver might have seen the danger, but did not look before him, it will be Manslaughter for want of due circumspection (b). And generally it may be laid down, that, where one by his negligence has contributed to the death of another, he is guilty of Manslaughter (c). If a man drive a Carriage or Cart at an unusually rapid pace {d), whereby a person is killed, though he calls repeatedly to such person to get out of the way ; if from the rapidity of driving, or from any other cause, the person cannot get out of the way in time enough, but is killed, the di'iver is in law guilty of Manslaugh- ter {e). If each of two persons be driving a Cart or Carriage, at a dangerous and furious rate, along a highway, and they be racing and inciting each other so to drive, and (a) See per Alderson, B., Reg. V. Cook, Appendix. {b) 1 Hale, 476; Post. 263; 1 East's Pleas of the Crown, 263 ; and see Reg. v. Cook, Appendix. (c) Reg. V. Swindale, 2 C. & K. 230. {d) See the General High- way Act, 5 8i6 Will. 4, c. 40, s. 78 ; and for the MetropoHs, 2 & 3 Vict. c. 47, s. 54. (e) Per Garrow, B., Rex v. Walker, 1 C. & P. 32. XEGLIGEXT DRIVING. 223 one of them runs over a man and kills him, both are guilty of Manslaughter{f) ; and it is no ground of de- fence, that the death was caused by the negligence of the deceased himself, or that he was either deaf or drunk at the time (/). So also if the driver of a Carriage be racing with an- Driver un- other Carriage, and from being unable to pull up his ^^'® *° P"^^ Horses in time, the first-mentioned Carriage is upset, and a person thrown off it and killed, this is Manslaughter in the driver of that Carriage. Thus where two Omni- buses running in opposition to each other, were galloping along a road, and a person killed by the upsetting of one of them, for which the driver was tried: — Mr. Justice Patteson in summing up said to the Jury, ^'The question here is, whether you are satisfied that the prisoner was driving in such a negligent manner that, by reason of his gross negligence, he had lost command of liis Horses? And that depends on whether the Horses were unruly, or whether you believe that he had been racing with the other Omnibus, and had so urged his Horses that he could not stop them ; because, however he might be endeavour- ing to stop them afterwards, if he had lost the command of them by his own act, he would be answerable ; for a ' man is not to say, I wdll race along a road, and, when I have got past another Carriage, I will pull up. If the prisoner did really race, and only when he got past the other Omnibus endeavour to pull up, he must be found guilty ; but if you believe that he was run away with, without anj'' act of his o^vn, then he is not guilty. The main questions are, were the two Omnibuses racing ; and was the prisoner driving as fast as he could in order to get past the other Omnibus, and had he urged his Horses to so rapid a pace that he could not control them ? If you are of that opinion, you ought to convict him ; but if his Horses ran away of their own accord, without any act of his, he is entitled to an acquittal (^)." Where a person has been killed in such a manner that ingrpe^son no want of care could be imputed to the driver, it will be is held to be Accidental Death, and he will be excused (A). n^'^th^"^^^ Therefore if the driver of a conveyance use all reason- ^^^ ^^ able care and diligence, and an accident happen through driver is not (/) Reg. V. SwindaU, 2 C. {h) 1 Hale,476; Fost.263; & K. 230. 1 East's Pleas of the Crown, ig) Rex V. Timmins, 7 C. 263. & P. 500. liable. 224 Trotting a Waggon along a road. Trotting a Waggon along a street, Remarks in East's Pleas of the Crown. Where Streets are unusually crowded. NEGLIGENCE IN THE USE OP HORSES, &C. some chance Avhich he could not foresee or avoid, he is not to be held liable for the results of such accident (i). Thus in an old case, where A. was dri\^ng a waggon with four Horses in the highway at Whitechapel, and he being in the waggon, and the Horses upon a trot, they threw down a woman who was going the same way with a burden upon her head, and killed her, Chief Jus- tice Holt, Justice Tracy, Baron Bury, and the Recorder Lovel, held this to be only a Misadventure (k). But Lord Holt held in that case, if it had been in a street where people usually pass, it would have been Manslaughter ; but it was clearly agreed that it could not be Murder {jk) . It must be taken for granted from this note of the case, that the accident happened in an highway where people did not usually pass {I ) ; for otherwise, the circumstance of the driver's being in his Cart, and going so much faster than is usual for carriages of that construction, savoured much of negligence and impropriety ; for it was extremely difficult, if not impossible, to stop the course of the Horses suddenly in order to avoid any person who could not get out of the way in time. And indeed such conduct in a driver of so heavy a carriage might, under most circum- stances, be thought to betoken a want of due care, if an)^, though but few, persons might probably pass by the same road. The greatest possible care is not to be ex- pected, nor is it required ; but whoever seeks to excuse himself, for having unfortunately occasioned by any act of his own the death of another, ought at least to show that he took that care to avoid it which persons in similar situations are most accustomed to do {m). The fact that Streets are unusually crowded from any public procession or other cause, instead of excusing a driver when proceeding at his ordinary pace and with ordinary care, requires him to be particularly cautious, and may tend to render him criminally answerable for any accidents ensuing from driving at a rate, and ^^dth those precautions which he might have ordinarily ob- served {n). (i) Reg. V. Murray, 5 Cox, C. C. 509(Ir.) (k) O. B. Sess. before Mich. T. 1704, M. S. Tracy, 32. (0 Unlike Whitechapel of the present day. (th) 1 East's Pleas of the Crown, 263. (??) Reg. V. Murray, 5 Cox, C. C. 509 (Ir.) NEGLIGENT DRIVING. ~-5 If any one be maimed or otherwise injured by the Where driver "wanton and furious driving or racing," or by the J^^^^^^^^^j.^^^^ J^^^ " wilful misconduct" of the driver of any public stage 4, c. 4. carriage, the person so offending is guilty of a misde- meanor, and indictable under the statute 1 Geo. 4, c. 4. Under 2 & 3 Vict. c. 47, s. 54, every person who. Furious driv- within the Metropolitan Police District, " shall ride or Metropolitan drive furiously, or so as to endanger the life or limb of PoUce Dis- any person, or to the common danger of the passengers trict. in any thoroughfare/' is liable to a penalty of not more than 40s. Police Constables are empowered to take a person into Power of I'l 1 " 'i PoliPG Con- custody without warrant, who may commit any such stables, offence "within view of any such Constable (p) ;" and this power is not confined to cases where the offender's name and residence is unknown {q). A conviction for furious driving under this Statute, Conviction not alleging the offence to have been committed within °°t|^j)[of view of the Police Constable, was held not to be a bar to Trespass. an action of Trespass against a Police Constable, for the arrest and detention of the party, although such convic- tion was unappealed against and acquiesced in {r). A partj^ who sustains an injury from the careless or where party- negligent driving of another may maintain an action, ^"^.ii^^gj)^ unless he has himself been guilty of such negligence or dri°ving may want of due care as to have contributed or conduced to maintain an themjury(s). ^"*^""- An action on the Case lies for neglect in taking care of Action lies vicious Horses, Cattle, Dogs, &c. As if a man ride an ^^^ "^?^^" unruly Horse in Lincoln's Inn Fields, (or other public fh" care place of resort,) to tame him, and he break loose and of vicious strike a person {t). 1^°'^^"^' ^'''■ But where damage is done in consequence of a person A\Tiere ano- striking a Horse on which another rides, the striker 'vs> ^^^^^T^^"^ 1^0 , , . , . , . ^ strikes a the trespasser and the rider is not(M). Horse. (p) 2 & 3 Vict. c. 47, Thorogood v. Bryan, 8 C. B. s. 54. 130. {q) Justice v. Gosling, 16 {t) See Com. Dig. Action J. P. 105 (C. P.); S. C. 21 upon the case for negligence, L. J. (C. P.) 94; 2 & 3 Vict. A. 5 ; and Ferocious and 0. 47, s. 63. Vicious Animals, i^ost. Part 2, (r) Justice v. Gosling, 16 Chap. 2. J. P. 105 (C. P.); S. C. 21 (m) Gibson v. Pepper, 2 L. J. (C. P.) 94. Salk. 637. (s) See per Coltman, J., l5 226 NEGLIGENCE IN THE USE OP HORSES, &C. Damagres recovered in Trespass. Driving furi- ously round a corner. Mail cart rapidly enter- ing Post Office Yard. Frightening a Horse. A man and his Avife brought an action o{ Trespass for a battery, and declared that the defendant struck the Horse whereon the Avife rode, so that the Horse ran away with her, whereby she was thrown down, and another Horse ran over her, whereby she lost the use of two of her fingers. The Jury found for the plaintiffs and gave them 48/. damages {x). If a man drive furiously round a corner and injure a person on the further side, he is liable to an action for his negligence (?/). One of the Mail carts entering the General Post Office Yard at the rate of five or six miles an hour, knocked down and seriously injured the plaintiff, a widow. On an action being brought the defence was, that the accident was occasioned by the plaintiff's own aw^kwardness, in not attending to the driver's warning. Lord Campbell told the Jury, that the real question was whether that was a proper pace to drive into the yard. And they gave a verdict for the plaintiff, with 50/. damages (z). If damage is caused by a Horse taking fright at some- thing which is improperly placed in the public street, the person so placing it is liable. Thus in the following case, the plaintiff, a carman, was proceeding with his master's cart, heavily laden, along Angel Lane, Stratford, when the Horse took fright at a fire basket on which some asphalte was boiling, started to one side, and, notwith- standing the plaintiff's catching hold of the bridle, threw him down, so that the wheel passed over his leg and pro- duced a compound fracture of the bone. He was taken to the London Hospital, where the ])one was set, but hospital gangrene superv^ened, and he was for some days in danger of losing his leg. He, however, gradually recovered, was discharged after twelve weeks, and con- tinued as an outpatient for a long time. Eventually he was able to walk about with the help of a stick, and earn 10s. a- week, but at the time of the accident he was in the receipt of 1/. a- week, on which he supported him- self and two youn^ daughters. The defendant had con- tracted to lay the floor of a room in the Angel Inn with {x) Dodwell v. Burford, 1 Mod. 24. {y) See Mayor of Colchester V. Brooke, 7 Q. B. 359. (2) Smithy. M'Namara, he- fore Lord Campbell, C. J., Queen's Bench, N. P., May 12, 1853; and see Bowden v. Sherman, Appendix. yEGLIGEXT DRIVING. 227 asplialte, wliicli he caused to be boiled in the lane, as the smell was too powerful for the house. He had been w'arned of the danger of having the fire basket in the street, and had removed it to a different part of the lane, but did not place it in the yard of the inn, where it had been suggested it would be more out of the w^ay. The Jury returned a verdict for the plaintiff — damages 601. (a) As cases have often occurred where Horses and Cattle Cattle run have been killed by being run over by a train w^hen on o^.^r on a the line of a railway, the followmg Rules have been ren- ^^^ ^^^' dered applicable to the various cases. (1.) If Cattle have a right to be on a railway, and are damaged hj a train, the plaintiff's remedy is by action 07i the Case for causing the engine to be driven in such a way as to injure that right. (2.) If Cattle are altogether wrong-doers, and are injured in such manner as above-mentioned, there is no neglect or misconduct for which the Company are responsible. (3.) If Cattle escape through defect of fences which the Companj'- should have kept up, their damage is consequent on that wrong, and recoverable in an action o?i the Case against the Company, for letting their fences be incomplete or out of repair (Z>). Thus where the plaintiff's Sheep got upon the defendant's railway, through defect of fences, and were run over by an express train driven by a servant of the Company, who had been directed by his employers to drive at a certain rate per hour, it was held that Trespass would not lie against the Company. Where damage has been caused by collision, there may Rules as to be Negligence on one side only (c) j or Negligence on both civil liability, sides (d). Both parties mag be to blame (e) ; or it may be Altogether an accident (f). The following Rules, which appear fully borne out by the cases hereafter quoted, wall fix the liabilities of the parties concerned, under whatever circumstances the damage may be in- flicted. 1st. If a party who is taking reasonable and proper care receives damage in consequence of a Horse or Car- (a) Lambert v. Harrison, only, post, 228. before Talfourd, J., Guildhall (d) Negligence on both (C. P.), Feb. 25, 1853. sides, post, 230. (b) Sharrard v. London and (e) Both parties to blame, North- Western Railway Com- post, 238. pany, 4 Exch. 580. (/) Altogether an accident, (c) Negligence on one side post, 240. NEGLIGENCE IN THE USE OF HORSES, &C. riage he encounters being negligently managed, the person Avho has the control over such Horse or Carriage is answerable. 2nd. Where damage is not the necessary consequence of a particular wrongful act, the person sustaining damage, though a wrong-doer, may recover against the person causing it, if it be shown that with ordinary care on the part of the latter, the injury might have been avoided. 3rd. But where one party by his improper conduct makes it impossible for the other party, who is also acting improperly, to avoid doing him damage, the person in- flicting the injury is not liable, because the negligence of both parties concurs in producing it. 4th. Where damage is the consequence of pure accident, neither party is answerable. In the following case the Jury found for the plaintiff, being of opinion that there was negligence on the side of the defendant only. It appeared that between seven and eight o'clock on the evening of the 30th of November, the plaintiff, who was a female servant, was intending to cross High Street, Aldgate, and was stepping off the curbstone for that purpose, when a Cabriolet, which came up at a pace of nine or ten miles an hour, struck against her and knocked her down, by which she was injured. In summing up, Mr. Justice Coleridge said, " If the plaintiff has contributed to the accident by her own neglect, she cannot recover in this action. I will put this case. If a person in Oxford Street sees an Omnibus coming, however furiously, and he will be headstrong enough to try to cross the street, and is run over, he cannot recover in an action against the proprietors of the Omnibus, as no one has a right of action if he meets with an accident which by ordinary care he might have avoided. The Cabriolet, it is said, was coming at the rate of nine or ten miles an hour, which was a most im- proper pace at such an hour and in such a place. Even a much less pace would be too fast at that time of the evening in such a place as High Street, Aldgate. If the plaintiff took reasonable and proper care, and it was on account of the extraordinary speed of the Cabriolet that she could not save herself, and thus met with the acci- dent, she is entitled to your verdict ; but if she, by her own negligence and want of care, contributed to the accident, she cannot recover in this action, even though you should think the driver of the Cabriolet was driving NEGLIGENT DRIVING. 229 too fast, and was therefore guilty of negligence as well as the plaintiff. If, however, the plaintiff took reason- able and proper care, and it was the negligence of the driver which caused the accident, you ought to find a verdict for the plaintiff (^)." So also where it appeared that the plaintiff was a Passenger passenger on the top of an Omnibus, which was struck thro\vn from by the defendant's Omnibus, and the consequence was ^" °^"^ "^' that the Omnibus on which the plaintiff sat, continuing its course, ran against some obstacle, and the plaintiff was thrown off with considerable violence, it was held by the Court of Exchequer that the defendant was liable (h). If a Horse and Cart are left standing in the sti-eet, Horse and without any person to watch them, the oMTier is liable for Cart left any damage done by them, though it be occasioned by the^ftrelt^" the act of a passer-by, in striking the Horse. Thus where damage had been done under such circumstances, Chief Justice Tindal said, '' If a man chooses to leave a Cart standing in the street, he must take the risk of any mischief that may be done(i)." And in like manner a master is liable if his Cart be so left by his servant (k). The owner of a Cart or Carriage is bound to have Dama-refrom good tackle, and he is liable for an accident in conse- tackle break- quence of its breaking ; as where the chain-stay of a ^°^' Cart broke, and the Horse beiag frightened ran away and did damage (Z) ; and where, in consequence of the reins breaking, a foot passenger was run over and in- jured (m). So also in the following case it appeared that the de- Or from a de- fendant was driving his Cart down a hill, and the Horse, ^^^t in the which was usually quiet, suddenly commenced kicking, ° and proceeded at a furious pace. Eventually the shafts broke, and the Horse and Cart came into collision with the plaintiff's gig, and injured it. It was held that as the breaking of the shafts showed a defect in the Cart, which raised a presumption of negligence in the owner, he was liable for the damage sustained by the plaintiff (w). {g) WooJf\.Beard,8C.& B. 33. P. 373. (/) Welsh v. Lawrence, 2 (h) Rigby V. Hewitt, 5 Chit 262. Exch. 242. (/«) Cotteril v. Turley, 8 C. (0 Illidge V. Goodwin, 5 & P. 693. C & P. 193. (??) Templeman v. Haydon, {k) Lynch v. Nurdin, 1 Q. 19 L. T. 218 (C. P.) •230 Neglige7ice on both sides. "WTiere negli- gence of the injured party did not con- tribute to the accident. Where such negligence occasioned part of the mischief. A ■wrongdoer not without the pale of the law. Driving against an Ass left fet- tered on the road. NEGLIGENCE IN THE USE OF HORSES, kc The subject of Negligence on both sides was fully con- sidered by the Court of Exchequer in Bridge v. The Grand Junction Railway Company (o), and Mr. Baron Pai'ke there said, " The Rule of law is laid down Avith perfect correctness in the case of Butterjield v. For- rester {p), that although there may have been Negligence on the part of the plaintiff, yet unless he might by the exercise of ordinarj^ care have avoided the consequence of the defendant's Negligence, he is entitled to recover. But if by ordinary care he miglit have avoided them, he is the author of his own wrong." Where the negligence of the party injured did not in any degree contribute to the immediate cause of the acci- dent, such negligence ought not to be set up as an answer to an action brought against the person who committed the injuiy (^). A person who is guilty of negligence, and thereby pro- duces injury to another, cannot set up as a defence that part of the mischief would not have arisen if the person had not himself been guilty of some negligence (?•). As a general Rule of law, every one in the conduct of that which may be harmful to others if misconducted, is bound to use due care and skill, and the wrongdoer is not without the pale of law for this purpose (s). Therefore, where the defendant neghgently drove his Horses and Waggon against and killed an Ass, which had been left in the highway fettered in the fore feet, and was thus unable to get out of the way of the defend- ant's Waggon, which was going at a smartish pace along the road, Mr. Justice Erskine 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 ti'avelling 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 of the Waggon, the action was maintainable against the de- fendant ; and his Lordship directed them, if they thought that the accident might have been avoided by the exer- (o) Bridge v. The Grand Junction Railway Company, 3 M. & W. 246. ( p) Butterjield v. Forrester, 11 East, 60. (q) See Greenland v. Chap- lin, 5 Exch. 248. (r) Greenland v. Chaplin, 5 Exch. 243. (s) See per Lord Denman, C. J., Mayor of Colchester v. Brooke, 7 Q. B. 377. NEGLIGENT DRIVING. 231 cise Q^ ordinal^ care on the part of the driver, to find for the plaintiff, which they accordingly did. The Court of Exchequer refused a rule for a new trial which was applied for on the ground of misdirection ; and jNIr. Baron Parke said, " The correct Rule is laid down in Bridge v. The Grand Junction Railicay Company {t), namely, that the Negligence which is to preclude a plain- tiff from recovering in an action of this nature, must be such as that he could by oi^dinary care have avoided the consequences of the defendant's Negligence. -Although the Ass may have been wrongfully there, still the defend- ant 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 lying asleep there, or the purposely running against a carriage going on the wrong side of the road (m)." In an action for damage occasioned by the defendant's Question of negligence, a material question is, whether or not the ordinary care, plaintiff might have escaped the damage by ordinary care on his own part(:r). The defendant however is not excused merely because Circum- the plaintiff knew that some danger existed through the stances of the defendant's neglect, and voluntarily incurred such dan- left to the ger ', the amount of danger, and the circumstances which Jury, led the plaintiff to incur it, are for the consideration of the Jury (a;). Therefore, where Commissioners of Sewers had made a Horse in- dangerous trench in the only outlet from a mews, putting J"^^^ i" ^^- up no fence, and leaving only a narrow passage, on which 0"^^^ stable, they heaped rubbish, and a Cabman, in the exercise of his calling, attempted to lead his Horse out over the rub- bish, and the Horse fell and was killed, for which loss he brought an action : — It was held by the Court of Queen's Bench that the plaintiff was not disentitled to recover because he had, at some hazard, created by the defend- ants, brought his Horse out of the stable. Also that the case was properly left to the Jury on the question whe- ther or not the plaintiff had persisted, contrary to express warning at the time (as to which there was contradictory (0 Bridge v. The Grand & W. 546. Junction Railway Company, 3 {x) Clayards v. DethicJc, 12 M. & W. 246. Q. B. 439. (u) Davies v. Mann, 10 M. 232 Horse and Cart left in the street. Judgment of the Court of Queen's Bench. NEGLIGENCE IN THE USE OF HORSES; &C. evidence), in running upon a great and obvious dan- ger (y)- . , .. . The following is an important decision in a case where both parties were wrongdoers, but where the negligence of the plaintiff would not necessarily have been followed by damage, had there not been great Negligence on the part of the defendant's servant, who liad carelessly left a Horse and Cart standing for some time in the street, and the plaintiff, a young child, was injured when playing about the wheel. The defendant was held liable by a Jury, and the Court of Queen's Bench, after taking time to consider, discharged a rule nisi for a new trial applied for on the ground of misdirection, and Lord Denman de- livered the following important judgment: — *' This case w-as tried before my brother A\ illiams at the sittings in Easter Term, 1839. It was an action of Toi^t for Negligence by the defendant's servant, in leaving his Cai't and Horse half an hour in the open street, at the door of a house in which the servant remained during that period. The evidence for the plaintiff proved that at the end of the first half hour, he, a child of very tender age, being between six and seven years old, was heard crying, and on the approacli of the witnesses was found on the ground, and a wheel of the defendant's Cart going over his leg, which was thereby fractured. The defendant first applied for a nonsuit. The learned Judge refused the application ; and no question was made before us that these facts afforded prima facie evidence of the mischief having been occasioned by the Negligence of the defend- ant's servant in leaving the Cart and Horse. Witnesses were then called to establish a defence by a fuller expla- nation of the facts that had occurred. They proved that after the servant had been about a quarter of an hour in the house, the plaintiff and several other children came up, and began to play Avith the Horse and climb into the Cart and out of it. While the plaintiff was getting down from it, another boy made the Horse move, in conse- quence of which the plaintiff fell, and his leg was broken as before mentioned. On this undisputed evidence (for there was no cross-examination of the witnesses) the de- fendant's counsel claimed the Judge's direction in his favour, contending, that as the plaintiff had obviously contributed to the calamity, it could not be said, in point {y) Clayards v. Dethich, 12 Q. B. 439. NEGLIGENT DRIVING. 233 of law, to have been caused by the Negligence of the defendant's servant. My learned brother, however, thought himself bound to lay all the facts before the Jury, and take their opinion on that general point. They found a verdict for the plaintiif. It is now complained that such direction was not given ; and, at all events, the Jury are said to have given a verdict contrary to the evi- dence. The case came on in the new trial paper last term, and has been fully argued before us." " It is urged that the mischief was not produced by the mere Negligence of the servant, as asserted in the declaration, but at most by that Negligence, in combina- tion with two other active causes, the advance of the Horse in consequence of his being excited by the other boy, and the plaintiffs improper conduct in mounting the Cart, and so committing a trespass on the defendant's chattel. On the former of these two causes no great stress was laid, and I do not apprehend that it can be ne- cessary^ to dwell upon it at any length ; for if I am guilty of Negligence in leaving any thing dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the in- jury of a third, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestion- ably against the first. If, for example, a Gamekeeper, returning from his daily exercise, should rear his loaded gun against a wall in the playground of schoolboys, whom he knew to be in the habit of pointing toys in the shape of guns at one another, and one of them should playfully fire it off at a schoolfellow and maim him, I think it will not be doubted that the Gamekeeper must answer in damages to the wounded party. This might possiblj" be assumed to be clear in principle, but there is also the authority of the present Chief Justice (z) of the Common Pleas in its support in Illidge v. Goodwin (a)." "But in the present case an additional fact appears. The plaintiff himself has done wrong ; he had no right to enter the Carl; and, by abstaining from so doing, he w^ould have escaped the mischief. Certainly he was a co-operating cause of his own misfortune b\^ doing an unlawful act ; and the question arises, whether that fact (2) Chief Justice Tindal. (a) Illidge X. Goodwin, 5 C. & P. 190. ^34 NEGLIGENCE IN THE USE OF HORSES, &C. alone must deprive tlie child of his remedy. The legal proposition that one who has by his own Negligence con- tiibuted to the injury of which he complains, cannot maintain his action against another in respect of it, has received some qualifications. Indeed Lord Ellenborough's doctrine in 'Butterjield v. Forrester {b), which has been generally adopted since, would not set up the want of a superior degree of skill or care as a bar to the claim for redress. Ordinary care must mean that degree of care which may reasonably be expected from a person in the plaintiff's situation ; and this would evidently be very small indeed in so young a child. But this case presents more than the want of care ; we find in it the positive misconduct of the plaintiff, an active instrument towards the effect. We have here express authorities for our guidance. In Ilott v. Wilkes (c), a decision which ex- cited great attention both in "Westminster Hall and be- yond it, this Court indeed held that a trespasser in a "wood, where he well knew spring guns to be placed, could not sue for the injury received by him from the explosion of one of them. But Lord Tenterden and his three brethren cautiously and repeatedly declared that their opinion was founded on the plaintiff's knowing of the danger and voluntarily incun-ing it. Best, J., who was supposed to cany to the greatest extent the right of pro- tecting propertj'^ against invaders by placing dangerous instruments, took infinite pains, Avhen Chief Justice of the Common Pleas, to explain that his opinion in Ilott V. Wilkes [c) rested exclusively on the Notice. In Bird V. Holhrook (d) his expressions are most remarkable ; and so far is his Lordship from avowing the doctrine that the plaintiff's concurrence in producing the evil debars him from his remedy, that he considers Ilott v. Wilkes (c) an authority in favour of the action. He also expresses an inclination to agree w^ith the two learned Judges who held the action maintainable in Deane v. Clayton {e). There the plaintiff's dog had been killed by a spike, placed on the defendant's land for the protection of his pre- serves, whUe in pursuit of a hare. Park and Burrough, (6) Butterjield V. Forrester, {d) Bird v. Holhrook, 4 11 East, 60. Bing. 628. (c) Ilott v. Wilkes, 3 B. & {e) Deane v. Clayton, 7 Aid. 304. Taunt. 489. NEGLIGENT DRIVING. 235 Js., gave judgment in favour of the plaintiff; Gibbs, C. J., and Dallas, J., for the defendant. The present argument does not require any particular discussion of that case, because Bird v. Holbrooki g) is a decisive authority against the general proposition that misconduct, even wilful and culpable misconduct, must necessarily exclude the plaintiff who is guilty of it from the right to sue. I remember being present at a trial at Warwick, before Lord Chief Baron Richards, where the same law pre- vailed. The case is Jay v. Whitfield {h), mentioned in Bird v. Holbrook{g). A boy having received serious injury from a spring-gun placed in a garden where he was trespassing, recovered a verdict for £120 damages, which was much considered and never disturbed." '' A distinction may here be taken between the wilful act done by the defendant in those cases, in deliberately planting a dangerous weapon in his ground, with the design of destroying trespassers, and the mere Xegligence of the defendant's servant in leaving his cart in the open street. But between icilful Mischief and gross Negli- gence the boundary line is hard to trace ; I should rather say impossible. The law runs them into each other, con- sidering such a degree of negligence some proof of malice. It is then a matter strictly within the province of a Jury deciding on the circumstances of each case. They would naturally inquire whether the Horse was vicious or steady ; whether the occasion required the servant to be so long absent from his charge, and whether in that case no as- sistance could have been procured to watch the Horse ; whether the street was at that hour likely to be clear or thronged with a noisy multitude {i) ; especially whether large parties of young children might be reasonably ex- pected to resort to the spot. If this last-mentioned fact were probable, it would be hard to say that a case of gross Negligence was not fully established." "But the question remains, can the plaintiff then, con- sistent with the authorities, maintain his action, ha\ang been at least equally in fault ? The answer is, that sup- posing that fact ascertained by the Jury, but to this ex- ig) Bird v. Holbrooky 4 sent case that Compton Street Bing. 628. was more thronged than usual {h) Jay V. Whitfield, cited in consequence of a neigh- 4 Bing. 644. bouring street having been (i) It appeared in the pre- stopped up. 236 A heap left on the High- way. Opportunity of seeing the obstruction. Running over stones at night. Leaving the Highway. NEGLIGENCE IN THE USE OF HORSES, &C. tent, that he merely indulged the natural instinct of a child in amusing himself with the empty Cart and de- serted Horse, then we think that the defendant cannot be permitted to avail himself of that fact. The most blameable carelessness of his servant having tempted the child, he ought not to reproach the child with yielding to that temptation. He has been the real and only cause of the mischief. He has been deficient in ordinary care ; the child acting without prudence or thought, has, how- ever, shown these qualities in as great a degree as he could be expected to possess them. His misconduct bears no proportion to that of the defendant which pro- duced it." "• For these reasons we think that nothing appears in the case which can prevent the action from being main- tained. It was properly left to the Jury, with whose opinion we fully concur (/)." If a person using ordinary care is injured by falling over a heap on a Highway, the person who left it there is liable. But a person wdio is injured by an obstruction, against which he may fall on a Highway, cannot maintain an action, if it appear that he W' as riding with great violence and want of ordinary care, without which he might liave seen and avoided the obstruction. Thus Lord Ellenbo- rough, C. J., said, " A party is not to cast himself upon an obstruction which has been made by the fault of an- other, and avail himself of it, if he do not himself use common and ordinary caution to be in the right (7?z)." The opportunity, how^ever, of seeing Stones during the day is no defence to an action for damage caused by running over them at night (n). If a person leaves the Highway and sustains injury, lie cannot recover any damages. Thus where a person stepped aside at night from a Highw^ay, and fell into the foundation of a house and broke his leg, and brought an action against the defendant, ]Mr. Justice Cresswell held that there was a wilful departure from the Highw^ay, and, in summing up, directed the Jury that the first question for them to consider was, whether the excavation made (/) Lynch v. Nurdin, 1 Q. B. 33. {m) See Butterfield v. For- rester, 11 East, 61. («) Per Rolfe, B., Grieve v. Milton, Carlisle Spr. Ass. 1850. NEGLIGENT DRIVING. 237 by the defendant prevented the public from passing in safety along the Highway. A second question, involved in the first, was, whether the defendant was bound to have fenced off the excavation ; and, thirdly, had the defendant tumbled into the hole while passing along the ' Highway, The evidence was, that he had departed from the road. The Jury found a verdict for the defendant (o). Although where a Contractor does what he contracts Liability of a to do, the act of the employed is the act of the employer ; Contractor, yet where the act to be done is lawful, the Contractor is liable for any thing done negligently, or beyond his con- tract (^). So if a man employs another to do a thing, and there are Where there several ways of doing it, one criminal and another inno- wayrof^doinff cent, and he does it in a criminal manner, the employer a thing, is not liable {q). If a Contractor, however, is employed to do an un- Liability of lawful act, the emploj^er is liable, because in such case ^^ employer, the act of the employed is the act of the employer. Therefore where the defendants had employed a Con- tractor to open, without legal authority, the Streets of Shefiield, and the plaintiff was injured by the rubbish, it was held that this being the act fi-om which the injury arose, the defendants were liable (?'). The question in all cases is, whether the injury was the What is the act of the party as the employer's servant, or in the cha- question in racter of Contractor ; because in the first case the em- ployer would be liable to an action, and in the second he would not(s). Thus the defendants were employed by A. to pave a Dis- stones left by trict. They contracted with B. to pave one of the Streets, f Sub-Con- B.'s workmen, in the course of paving the Street, left some stones at night in such a position as to constitute a public nuisance, and the plaintifi' was injured by falling over these stones. No personal interference of the de- fendants with, or sanction of, the work of laying down (o) Firthx. Ackroyd, before L. T. 208 (C. P.) Mr. Justice Cresswell, York (r) Ellis v. Sheffield Gas Spr. Ass. March 10, 1853. Company, Q. B. Nov. 7, 1853. (p) Ellis V. Sheffield Gas («) Knight v. Fox, 5 Exch. Company, Court of Q. B. 725; Overton v. Freeman, 21 Nov. 7, 1853. L. J. 52 (C. P.) (q) Peachey y. Rowland, 20 Manure left on a road. 238 NEGLIGENCE IN THE USE OE HORSES, &C. the stones was proved. And it was held that the defend- ants were not liable (t). Performance But where an action on the Case for Negligence was ni?ydomestic brought against A. by B., a Car proprietor, for damage duty. occasioned to a vehicle of the latter, in consequence of a heap of rubbish having been left in a Street, near the dwellinghouse of A., by a man employed by him to clear out his ashpit, the Jury found the man had contracted with A. not only to remove the rubbish to the Street, but to carry it away altogether. It was held, in the Irish Court of Queen's Bench, that the subject-matter of the contract being the performance of an ordinary domestic duty, the defendant was liable for the injury sustained (m). In another case, some Manure left on a Highway for A., was not removed, and a carriage was upset by it at night. No great damage was done to the carriage, and it was driven home ; but about an hour after arriving there, one of the Horses died suddenly, and it was proved that the death was caused by an injury sustained by fall- ing over the Manure. An action was brought against A. for the damage, and a verdict obtained against him ; but it was afterwards doubted on the evidence, whether he or the person who left it was responsible (:r). "Where the Negligence of both parties concurs in pro- ducing the damage, so that both are to blame, neither party can recover. Thus where the plaintiff, in crossing a road, was knocked doAvn and seriously injured by the defendant's Cart, Chief Justice Tindal told the Jury that they must be satisfied that the injury was attributable to the* Negligence of the di'iver and to that alone, before they could find a verdict for the plaintiff; for if they thought that it was occasioned in any degree by the im- proper conduct of the plaintiff in crossing the road in an incautious and imprudent manner, they must find their verdict for the defendant {y). And where an action was brought for an injury to the plaintiff's Chaise by the de- fendant's Carriage, Mr. Justice Alderson left it to the Jury to say whether the injury was occasioned by Neg- ligence on the part of the defendant's servant, without any Negligence on the part of the plaintiff himself; for Both parties to blame. {t) Overton v. Freeman, 21 L. J. 52 (C. P.) {u) M'Keon v. Bolton, 3 Ir. Jur. 288 (Q. B. Ir.) (ct) Gassiot V. Carpmael, 19 L. T. 64, 94. (?/) Hawkins v. Cooper, 8 C. & P. 473. NEGLIGENT DRIVING. 239 that if the plaintiff's Negligence in any way concurred in producing the injury^ the defendant would be entitled to the verdict (z). So also if a person sees another Car- riage coming furiously on the wrong side of the road, and does not get out of the way when he has the opportunity, he cannot recover for any injury he may sustain (a). In the case of Thorogood v. Bryan (b), where a person Case ofT/w- was run over and killed by an Omnibus which was ^°9ood v. racing, and the Negligence of the driver of the Omnibus, "'^""' in which the deceased was a passenger, was relied on as a defence to the action brought by the widow of the de- ceased, it was held that the deceased ha\ang trusted the party by selecting the particular conveyance, he had so far identified himself A\dth the Carriage in which he was travelling, that want of care on the part of its driver was a defence for the driver of the other Carriage, which directly caused the injury 5 and that this was in accordance with the opinion expressed by the Court of Exchequer in Bridge v. The Grand Junction Railway Company (c). Upon this last case the following remark is made in Remark in Smith's Leading Cases (c?) :—'' If t^vo drunken Stage ^^J.^'"^^^*^- ~.« • . O inST (J3S6S Coachmen were to drive their respective carriages against each other and injure the passengers, each would have to pay for his own carriage no doubt ; but it is incon- ceivable that each set of passengers should, by a fiction, be identified with the Coachman who drove them, so as to be restricted for remedy to actions against their own di'iver or his employer (c?)." And indeed it seems absurd to say that the Driver of Power of an Omnibus is the sers^ant of the passenger on account of selection, his "selecting the particular conveyance." An Omnibus is a carriage plying between two termini, and subject to various regulations, over which the passenger has no control. By these the Driver is governed, and for a breach of them he is punished under an Act of Parlia- ment, the passenger in no case being able either to alter or modify the regular routine of the Driver's em- ployment. And it would be idle to say that a passenger (2) Pluckwell V. Wilson, C. B. 130. Bart., 5 C. & P. 375. (c) Bridge v. The Grand (fl) See Reed v. Tate, post. Junction Railway Company, 3 241. M. & W. 244. {h) Thorogood v. Bryan, 8 {d) 1 Smith's L.C., 132 b. 240 NEGLIGENCE IN THE USE OF HORSES, &C. Altogether an Accident. Running over a at night going from Charing Cross to the Eyre Arms selects his Carriage, for the only Omnibuses which run there are those of the Atlas Company. And indeed all London Omnibuses being under the same regulations, each must be supposed to have been selected for the public service, so that in point of law there can be no difference between one and another. Where the injury arises altogether from accident the defendant is not liable {e). Thus where an action of Trespass was brought for injur^r done to a Horse by a Pony and Chaise running against it, the plaintiff called witnesses who said thej saw the Pony and Chaise stand- ing half an hour in the street without any person to take care of them, and also they afterwards saw the Pony run away with the Chaise and run against the plaintiff^s Horse ; but they did not know the cause of the Pony's starting. It was sworn, on the part of the defendant, that his wife was holding the Pony by the bridle, when a Punch and Judj^ show coming by frightened the Pony, which ran away, and almost pulled down the defendant's wdfe w^hile she tried to hold it in, and she was obliged at length to let go the rein. Lord Denman, C. J., in summing up, said to the Jury, " If the facts are true as suggested for the defence, I very much think you would be disposed to consider this as an inevitable accident, one which the defendant could not prevent." However, the Jury disbelieved the defendant's evidence, and found a verdict for the plaintiff (/*). In the following case, a servant was sent with a Van person ^^^ ^ Horse on some en-and by the defendant, with di- rections to bring back with him another Horse, which had been left on the road. AVhen the servant obtained possession of the second Horse, which seemed to have been in the habit of following the Van Avithout being tied, he gave a boy permission to ride liim. As the ser- vant drove on, he came upon the plaintiff, who was re- turning home late at night M'ith a hand-barrow, and, seeing him, he turned his Horse's head out of his direct line to avoid him. The boy and Horse behind, however, went on without noticing the plaintiff, and the conse- quence was they both fell over him and severely injured him. On the trial Chief Baron Pollock nonsuited the {e) Per Alderson, J., Pluck- well V. Wilson, 5 C. & P. 375. (/) Goodman v. C. & P. 410. Taylor, 5 NEGLIGENT DRIVING. 241 plain tiiF, being of opinion that the defendant was not liable for this, and ruled that the declaration was not supported, as the Horse which did the injury was not conducted or di'iven by the servant of the defendant. And the Court of Exchequer afterwards held that the Chief Baron's ruling was correct, and that the facts clearly showed that the injury sustained by the plaintiff was the result of the purest accident (^). In all cases, therefore, where a Horse runs away and Horse run- inflicts an injury, if the rider or driver have not acted in i^ioga^ay- such a manner as would lead a Jury to suppose that his conduct must have contributed to the accident, he is not answerable iji). RULE OP THE ROAD. If there be no peculiar circumstances to the contrary, Right side of it is the duty of each party to keep the regular side of * ^ ^^ ' the road. However, a person riding or dri\nng is not bound to keep his side ; but if he does not, he must use more care, and keep a better look out, to avoid concus- sion, than would be necessary if he were on the proper part of the road(^). If a person driving on the wrong side of the road in Driving on the dark accidentally injures another Carriage or person, side^°the he is answerable for it(^). dark. If a person driving a Gig on his proper side sees a Seeing a per- Gig coming down on the wrongr side of the road, he son coming ^ii- 1P1 i®i • o ^ ^ • on nis wrong must not let mmseli be run do\%'n, but, it he have time side. and room, must get out of the way ; for if he does not, he cannot bring an action and recover damages (Z). And where an action was brought for negligently Does not jus- driving against the plaintiff's Horse, it appeared that injury!^^"^°" the defendant's Chaise came out of another road, and in crossing over to its right side broke the leg of the plain- tiff's Horse, which was then on the wrong side of the road. Lord EUenboroug-h held that the circumstance of {g) Bird V. Sharpe, Exch. son, 3 C. & P. 530 ; Alexander Nov. 5, 1853. V. Laidley, Appendix; Elvin (h) See ante, Rex v. Tim- v. Chapman, Appendix. mins, 7 C. & P. 500. (l) Per Patteson, J., Reed (0 See Alexander v. Laid- v. Tate, Newcastle Spr. Ass. ley, A^Tpendis.; and Pluckicell 1846; and see Case of the V. mison, 5 C. & P. 375. " Commerce," 3 Rob. Adm. (k) See Handayside \. Wil- Cas. 287. M 242 NEGLIGENCE IN THE USE OP HORSES, &C. flexible. the person being on the wrong side of the road was not sufficient to discharge the defendant; for though a person might be on his wrong side of the road, if the road was of sufficient breadth, so that there was full and ample room for the party to pass, he was of opinion that he was bound to take that course which would carry him clear of the person who was on his wrong side ; and that if an injury happened by running against such a person he Avould be answerable. A person being on his wrong side of the road could not justify another in wantonly doing an injury which might be avoided. The question, there- fore, to be left to the Jury was, whether there was such room, that though the plaintiff's servant was on his wrong side of the road, there was sufficient room for the defend- ant's Carriage to pass between the plaintiff's Horse and the other side of the road {m). Rule of the And in another similar case it was held by the Court Road not in- of King's Bench, that whatever miojht be the law of the road, it was not to be considered as mflexible and impe- ratively governing cases where Negligence was the ques- tion. In the crowded streets of the Metropolis situations and circumstances might frequently arise where a devia- tion from what is called the law of the road would not only be justifiable but absolutely necessary. Of this the Jury are the best judges; and, independently of the law of the road, it is their province to determine from whose Negligence the accident has arisen (n). Though the Rule of the road is not to be adhered to, if by departing from it an injury can be avoided, and there is clear space enough to get out of the way, yet in cases where parties meet on a sudden, and an injury results, the party on the wrong side is answerable, unless it clearly appear that the party on the right side had ample means and opportunity to prevent it(o). The rule of the road as to keeping the proper side Road applies applies to Saddle Horses as well as to Carriages ; and if Horses. ^ ^ Carriage and a Horse are to pass, the Carriage must keep its proper side and so must the Horse. But if the driver of a Carriage is on his proper side, and sees a Horse coming furiously on its wrong side of the road, it is the duty of the driver of the Carriage to give way and Parties meet ing on a sudden. Rule of the 42. (m) Clay v. Wood, 5 Esp. (n) Wayde v. Lady Carr, 2 D. & R. 256. (o) Chaplin v. Hawes, 3 C. & P. 554. RULE OF THE ROAD. 243 avoid an accident, although in so doing he goes a little on what would otherwise be the wrong side of the TOQ.d(p). The law as to Foot passengers is laid down in the fol- Foot passen- lowing case, where an action of Trespass was brought s^rs. for running over a Foot passenger with a Carriage which was on its wrong side of the road, and Mr. Justice Pat- teson said to the Jury, " A Foot passenger has a right to cross a highway ; and it was held in one case (q) that a Foot passenger has a right to walk along the carriage way. But without going that length, it is quite clear that a Foot passenger has a right to cross, and that per- sons driving Carriages along the road are liable if they do not take care so as to avoid driving against the Foot passengers who are crossing the road ; and if a person driving along the road cannot pull up because his reins break, that will be no ground of defence, as he is bound to have proper tackle." '' With respect to what has been said about the Car- Rule of the riaore beings on the wroncr side of the road, I think you ^°^^ *^?^^ should lay it out of your consideration, as the Rule as to the proper side of the road does not apply with respect to Foot passengers ; and as regards the Foot passengers, the Carriages may go on whichever side of the road they please (r)." It is the duty of a person, who is driving over a cross- Going over a ing for Foot passengers at the entrance of a Street, to crossing, drive slowly, cautiously and carefully ; but it is also the dut}'^ of a Foot passenger to use due care and caution in going upon such crossing, so as not to get among the Carriages, and so receive injur^r(s). If there be a nuisance in a public highway, a private Nuisance on indi\T[dual cannot of his own authority abate it, unless it ^^^^^ ^'^^" does him a special injury, and he can only interfere witb it so far as is necessary to exercise his right of passing Edong the highway; and he cannot justify doing any damage to the property of the person who has improperly placed the nuisance in the highway, if, avoiding it, he might have passed on with reasonable convenience {t). (p) Turley v. Thomas, 8 C. {s) See per Pollock, C. B., & P. 103. Williams v. Richards, 3 C. & (q) Boss v. Litton, 5 C. & K. 82 ; and see Bowden v. P. 407. Sherman, Appendix. (r) Cotteril v. Turley, 8 {t) See Judgment of Court C. & P. 693. of Queen's Bench, Dimes v. m2 •244 Horse and Carriage be- fore trades- man's door. NEGLIGENCE IN THE USE OF HORSES, &C. A Tradesman may remove a Horse and Cart or Car- riage from before his door, if it impedes his business. Thus if a Hackney Coach stands before a Shopkeeper's door, and hinders customers, he may lawfully take hold of the Horses and lead them away, and is not bound to take his remedy for damages (u). When the Master is liable. Master and servant driv- ing together. Servant en- trusting the reins to a Stranger. NEGLIGENT DRIVING BY A SERVANT. A Master is liable where his Servant causes injury by doing a laivful act negligently, but not where he wilfully does an illegal one. In cases of negligent driving, where the Servant has had the authority of his Master to do the particular act, namel)^, to drive along the highwaj^, Avhich is perfectly lawful in itself, the Master is charge- able, because the act so authorized by him has been done negligently. But if the Servant drive wilfully against another, the JMaster is not chargeable for the in- jury done (.2^). Where a Master and Servant are together in a vehicle, and an accident occurs from Avhich an immediate injury ensues, the Master is liable in Trespass and not in Case, although the Servant is driving, and there is no evidence of any interference on the Master's part ; and even Avhere the evidence on the part of the defendant strictly nega- tives any interference, so that the mere presence of the Master with the Servant will constitute him a trespasser if the act of the Servant amount to a trespass (y). So where a Carriage and Horses are hired, and the postboys are servants of the owner, and an accident ensues in con- sequence of their Negligence, the hirer, if he sit outside and have a vicAV of their proceedings, and do not endea- vour to stop their misconduct, is a co-trespasser with them {z). A Master is liable in an action on the Case for damage resulting from the Negligence with which his Cart has been driven, although it should appear that his Servant Petley, 15 Q. B. 283; Bridge V. Grand Junction Railway Company, 3 M. & W. 244; Davies v. Mann, 10 M. & W. 546 ; Mayor of Colchester v. Brooke, 7 Q. B. 339. (m) Slater v. Swann, 2 Str. 872. ' x) Per Patteson, J., Lyons v. Martin, 8 A. & E. 515; S. a 3 Nev. & P. 509 ; and see M'Manus v. Cricket, 1 East, 106. {y) Chandler v. Broughton, 1 Cr. & M. 29. {z) M'Laughlin v. Pryor, 4 Scott, N.R. 655;5'. C.4M. & G. 48. NEGLIGE>'T DRIYIXG BY A SERVANT. 245 was not driving at the time of the accident, but Imd en- trusted the reins to a Stranger who was riding with him, and who was not in the Master's service {a). If a Serv^ant driving his Master's Carriage, in order to Servant effect some purpose of his own, wantonly strike the Horse striking the of another person, and produce an accident, the Master other. will not be Kable. But if in order to perform his Mas- ter's orders he strikes, but injudiciously, and in order to extricate himself from a difficulty, that Avill be negligent and careless conduct, for which the Master ivill he liable, being an act done in pursuauce of the Servant's employ- ment (Z>). And where a Coachman, in consequence of his Master's Carriage having become entangled with an- other, struck the other Horses, which were standing still without a driver, upon which they ran away and upset the Carriage, the Jury thought that the entangling arose originallj'^ fi-om the fault of the Coachman, and that as he was acting within the scope of his employment in en- deavouring to extricate himself, the Master was liable (Z*). But where a van was standing at the door of the Servant re- plaintiff, from which the plaintiff's goods were being moving an unladen, and the plaintiff's gig was standing behind the ° van ; and the defendant's Coachman drove her Carriage up, and there not being room for the Carriage to pass, the Coachman got off his box and laid hold of the van horse's head ; and this caused the van to move, and thereby a packing-case fell out of the van and broke the shafts of the gig ; it was held, with the assent of the Barons sitting in the Exchequer Chamber, that the de- fendant was not liable, as the Coachman was not acting in the employ of his mistress, that is, within the scope of his employment, at the time this matter occui*red (c). If a Serv^ant does what his Master employs him to do Servant act- in a negligent, improper or round-about way, and damage ^s i™?'^*'- is done, his Master is liable (c?). If a Servant driving his Master's cart, on his Master's Making a de-, business, make a detour from the direct road for some ^°^^ ^^^x^^^ purpose of his own, his Master will be answerable in poses. damages for any injury occasioned by his careless driving (a) Booth V. Mister, 7 C. & Palk, 9 C. & P. 629. P. Q^. {d) See per Cresswell, J., (6) Per Curiam in Croft v. Mitchell v. Crassweller, 22 L. Alison, 4 B. & Aid. 592. J. 104 (C. P.) (c) Lamb v. Lady Elizabeth NEGLIGENCE IN THE USE OF HORSES, &C. while so out of his road (e). Because wherever the Master has intrusted the Servant with the control of the Car- riage, it is no answer that the Servant acted improperly in the management of it ; but the Master in such case will be liable, because he has put it in the Servant's power to mismanage the Carriage by intrusting him with it. And this was so held by Mr. Justice Erskine, where a Servant, having set his Master down in Stamford Street, was directed by him to put up in Castle Street, Leicester Square ; but in so doing, he went to deliver a parcel of his o"wti in Old Street Road, and in returning along it he drove against an old woman and injured her(/). But where a Servant is acting, and knows that he is acting, contrary to his trust, and to his Master's employ- ment, the Master is not liable for any damage which may be done by him {g). Thus if a Servant without his Master's leave or know- ledge take his Cart or Carriage when it is not wanted, and di'ive it about for his own purposes, the Master is not answerable for any injury he may do, because he has not in such case intrusted him with the Cart or Car- riage (A). So where it was the duty of the defendant's Carman, after having delivered his Master's goods for the day, to return to the house, get the key of the Stable, and put up his Horse and Cart in a Mews in an adjoin- ing Street ; on his return one evening he got the key, and instead of going to the Mews, and without the de- fendant's leave, he drove a fellow servant in an opposite direction, and on his way back injured the plaintiff by his negligent driving j it was held that the defendant was not liable {i). And where a Master sent his Servant an errand, and he took and rode a Horse belonging to another person without his Master's permission, and on his way back inflicted an injury on the plaintiff, Mr. Justice Park said, " I cannot bring myself to go the length of supposing that if a man sends his servant on an errand without providing him with a Horse, and he meets a friend who (e) Joel V. Morrison, 6 C. & 501. (/) Sleath V. Wilson, 9 C. & P. 608. {g) See per Cresswell, J., Mitchell v. Crassweller, 22 L. J. 104 (C. P.) (h) Joel V. Morrison, 6 C. & P. 501 ; Sleath v. Wilson, 9 C. & P. 608. (i) Mitchell v. Crassweller, 22 L. J. 100 (C. P.) NEGLIGENT DRIVING BY A SERVANT. 247 has one, who permits him to ride, and an injurj' happens in consequence, the Master is responsible for that act. If it were so, every Master might be ruined by acts done by his Servant, without his knowledge or authority (A)." A Master is answerable for the negligent driving of Master's his Servant in his absence in an action on the Case. And ^^™^ °^^ ^^^ if it appear that the Master holds himself out to the world as the owner of a Cart by suifering his name to remain painted on it, and over the door of the house of business to w^hich it belongs, the action is maintainable against him, although it is proved that he had for some days ceased to be the owner of the Cart, or to be concerned in the business (?). Where a Carriage strikes against another, and a person Giving an who sees the transaction demands the address of the owner, address. the Address given by a person in the Carriage is admis- sible in evidence ; but a statement that any damage done will be paid for is not so {m). Where a party has received a bodily hurt from Negli- Action for gent driving, he may of course personally recover damage bodily hurt. for the injury done to him [n). If a Servant, in the course of his Master's employ, Liability of drives over any person and does a wilful injury, the Ser- gen'MtTe- vant, and not the Master, is liable in Trespass ; if the spectiveiy. Servant by his negligent driving causes an injury, the Master is liable in Case ; if the Master himself is driving, or though not actually driving is sanctioning the conduct of his Servant, he is either liable in Case for the negli- gence, or in Trespass because the act was wilful (o). Formerly, if a person were killed, no action could be Action hy re- maintained by his representatives. Now, however, Deo- presentatives dands are abolished {p), and under the late Act of Vic- killed. toria {q) a party causing death is liable to an action in all cases where the party injured might himself have main- {k) Goodman \. Kennell, 3 ties Railway Company, ISlu. 3. C. & P. 167. 235 (C. P.) ; Brien v. Bennett, (0 Stalles v. Eley, 1 C. & 8 C. & P. 724 ; Pearson's P. 614. Chit. Pleading, 525. {m) Beamon v. Ellice, 4 C. (o) See per Parke, B., & P. 586. Gordon v. Rolt, 4 Exch. 366 ; (n) For forms, &c. see Car- S. C. 18 L. J. 433 (Exch.) pue v. London and Brighton (p) 9 & 10 Vict. c. 62. Railway Company, 5 Q. B. (q) 9 & 10 Vict. c. 93, Ap- 747 ; Pigot v. Eastern Coun- pendix. 248 NEGLIGENCE IN THE USE OF HORSES, &C. Plan of the locality. Damages. Responsi- bility for "all possible con- sequences." Injury done to a Carriage. Measure of damages where a Horse has been injured. tained one, if death had not ensued. And such action is to be brought within twelve calendar months of the death of the injured party, bj'" his executor or administrator, and to be '' for the benefit of the Wife, Husband, Parent and Child of the person Avhose death shall have been so caused," and among whom the Damages are to be divided as the Jury shall direct (r). In an action for Negligent driving, a Plan, which is to be put into the hands of the witnesses, should merely show the street, the pavement, the turnings, corners, &c., and not the supposed position of the Carriages ; for if it does, the Judge wUl not allow it to be used (s). Generally speaking, where an injury arises from the misconduct of another, the party who is injured has a right to recover from the injuring party for all the con- sequences of that injury. And it is quite clear that every person who does a wrong is at least responsible for all the mischievous consequences that may reasonably be expected to result, under ordinary circumstances, from such misconduct {t). But it is doubtful whether a person guilty of negli- gence is responsible ybr all possible consequences of it, although they could not have been reasonably foreseen or expected. For instance, if a person chooses to walk in a crowded street with an open knife under his coat, aud another person negligently runs against him, is that other person to be responsible for all the injury which the knife may inflict on the person who canies it(M) 1 A Carriage was driven against the wheel of B.'s Chaise, and the collision threw a person who was in the Chaise upon the dashing-board. The dashing-board fell on the back of the Horse, and caused him to kick, and thereby the Chaise was injured. It was held, that B. was en- titled to recover in Trespass against A. damages com- mensurate with the whole of the injury sustained (j;) . Where a Horse has been injured by Negligent driving, the Jury must give as Damages the expenses of curing the Horse and of his keep during that time, in addition to the (r) 9&10Vict. c. 93, ss. 1, 2, 3 ; and for a form, see Pear- son's Chit. Pleading, 526. {s) Beamon v. Ellice, 4 C. & P. 586. {t) Rigby V. Hewitt, 5 Exch. 243. (ti) See quaere per Pollock, C. B., Greenland v. Chaplin, 5 Exch. 243, 246. (x) Gilbertson v. Richard- son, 5 C. B. 502. NEGLIGENT DRIVING BY A SERVANT. 249 difference between the value of the Horse before he was injured, and his value after he has been cured. Thus in an action for negligent driving, whereby the Plaintiff's Horse was injured, it appeared that the Horse was sent to a Farrier's for six weeks for the purpose of being cured. At the end of that time it was ascertained that the Horse was pemianently damaged to the extent of £20. And it was held by Mr. Justice Coleridge, that the proper measure of Damages was the Keep of the Horse at the Farrier's, the amount of the Farrier's hill, and the Difference between the value of the Horse at the time of the accident and at the end of six weeks; but that the plaintiff ought not to be allowed also for the hire of another Horse during the six weeks (y). In an action by the personal representatives of a de- Damages ceased person, to recover Damages for his death under Tl^^i^^f ^ff" n ■¥'■• r\c\ IT " • 1 "r\ son llaS Dccll 9 & 10 Vict. c. 93, the Jury, in assessing the Damages, knied. are confined to injuries of which a pecuniary estimate can be made, and cannot take into their consideration the mental suffering occasioned to the survivors by his death (2). {y) Hughes v. Quentin, 8 C. (z) Blake v. Midland Rail- Si P. 703; and see Percival V. way Company, 21 L. J. 233 Dudgeon, Appendix. (Q. B.) M 5 NEGLIGENCE IN THE USE OF HORSES, &C. CHAPTER II. FEROCIOUS AND VICIOUS ANIMALS. Wild and tame Animals. . 250 What ought to be the Lia- bility of the Person keeping them id. The Athenian and Roman Law 251 The French Code id. Argument in Mason v. Keeling id. RecentDecision in Scotland ido In England a scienter is held necessary id. Where a Dog bites a Per- son 252 Not enough to show that the Dog was of a fierce Disposition id. Report that Dog had been bitten by a Mad Dog . . id. Where a Dog worries Sheep id. Dictum of Mr. Justice Maule id. Where a Horse bit some other Horses id. Breaking Horses in a Pub- lic Place 253 Where a Mad Bull wounds a Person id. Where a vicious Beast kills a Person id. Owner bound to secure a vicious Animal at all events id. He is liable to an Action on the Case for Da- mages id. The Gist of the Action . . id. Not necessary to prove Negligenve id. An unruly Horse escaping from a Stable id. Lijury occasioned by a vicious Bull . . 254 Shooting a Dog for wor- rying Sheep id. Shooting a Dog for wor- rying Fowls id. Wild and tame animals. What ought to be the lia- bility of the person keep- ing them. FEROCIOUS AND VICIOUS ANIMALS. It is laid down that " there is a difference between things fer(B naturce, as Lions, Bears, &c., which a man must always keep up at his peril, and beasts that are mansuetcB naturcB, and break through the tameness of their nature, such as Oxen and Horses (a)." It would appear, however, only fair and right that whoever keeps an animal of any description, should keep it at his risk, and that for any injury occasioned by it he (a) Rex V. Huggins, 2 Ld. Raym. 1583. FEROCIOUS AND VICIOUS ANIMALS. 251 ought to be civilly responsible, whether he know of its mischievous propensities or not. And it ought only to be necessary to prove a scienter, where it is sought to make him criminally responsible. Neither the Athenian nor Eoman law required it to be The Athe- proved, that the owner had Notice of the mischievous J^^^^ ^^^ ^°" propensities of the animal. They probably thought, that for civil purposes, when A. sustains damage by the horns, hoofs or teeth of an animal in which B. has a beneficial property, and over which he has the exclusive control, it is for B., and not for A., an innocent stranger, to ascer- tain that which should determine the degree of care which ought to be exercised {b). So also in the French code, neither knowledge in the The French owner of the mischievous qualities of the animal, nor even ^°^®- the existence of these qualities, is regarded (c). In arguing the case of Mason v. Keeling {d), it was Argument in said, '' If a man have an unruly Horse, which breaks ^g^;*^-^ ^ * through his close or stable and does mischief, an action will lie for it ; and it is hard that one should thus have a remedy for the least trespass done in his land, and none for a trespass done to his person, by wounding or maiming. Suppose one keep several Mastiffs, shall he be exempt from an action for mischief done by every one of them, till he knows that he has done a prior mischief? Is no care to be taken to prevent a first mischief?'^ And in accordance with this common sense view of the Recent deci- case, it has been lately decided in Scotland, t\i2itQ. scienter 1^°^^° ^^'^^' is not necessary ; and Lord Cockburn said, " I have al- ways thought that if a Dog worries Sheep, his Master is liable. I do not attach any weight to the law of Eng- land. I am told that knowledge on the part of the owner is requisite to make him liable. This is absurd ; he can- not know it until it is done. This would allow each Dog to have one worry with impunity (e)." By the law of England, as laid down in a large num- in England ber of cases, a scienter is held necessary {f) ; and heW neees- therefore, as there is practically no efficient means ofsary. (6) See Card v. Case, 5 C. Mod. 333 ; S. C.l Ld, Raym. B. 627, n. 606. (c) Code Civil, No. 1385 ; (e) Orr v. Fleming, 1 Card V. Case, 5 C. B. 627, n. ; Weekly Reporter, 339. see also Exodus, chap. 21, (/) But see dictum of Mr. V. 29, 30, 31, 32, 36. Justice Maule, /jos^, in Card\. {d) Mason v. Keeling, 12 Case, 5 C. B. 634. 252 Sheep NEGLIGENCE IN THE USE OP HORSES, &C. keeping snapping Dogs, &c. oiF the Highways, every Dog has the opportunity of indulging once in the luxury, not only of worrjdng Sheep, as suggested by Lord Cock- burn, but of biting men, women and children. Thus, where the plaintiff was severely bit by a fierce mongrel Mastiff, which the owner allowed to range the streets of London unmuzzled, it was held that to recover damages the plaintiff must prove that the defendant knew the Dog to be of a mischievous nature {g). And it was held by Lord Ellenborough in an action on the Case for keeping a Dog, Avhich bit the plaintiff, that it was not sufficient to show that the Dog was of a fierce and savage disposition, that he was usually tied up by the defendant, and that the defendant promised to make a pecuniary satisfaction to the plaintiff after the latter had been bitten by the Dog Qi). In an action on the Case for keeping a mischievous n hv^a^^ Dog, by which the plaintiff's child was bitten, Report " "^ of the Dog having been bitten by a Mad Dog was held to be evidence to go to the Jurj^, that tlie plaintiff knew the Dog was mischievous and ought to be confined, and particularly as by tying up the Dog he had shown some knowledge or suspicion of the fact(i). Where an action on the Case was brought for injury done to the plaintiff's Sheep by a ferocious Dog kept by the defendant, it was held that the ferocity of the Dog and the scienter were the substance of the charge, and that an allegation of duty in the defendant to use due and reasonable care and precaution in keeping the animal was immaterial (^). In this case, however, Mr. Justice Maule is reported to have said, " It may be that the allegation of negli- gence, coupled with the consequent damage to the plain- tiff, would show a cause of action (Z)." And where it was stated in a Declaration, that the defendant kept his Horse so negligently that it broke into the plaintiff's close, and bit some of his Horses, so that '' they were spoiled and died," a verdict was found Where a Dog bites a per- son. Not enough to show that the Dog was of a fierce disposition. Report that Do bitten by Mad Do Where a Dog worries Dictum of Mr. Justice Maule. "Where a Horse bit some other Horses. ig) Mason v. Keeling, 12 Mod. 332. {h) Beck v. D^son, 4 Camp. 198. (i) Jones v. Perry, 2 Esp. 482. {k) Card v. Case, 5 C. B. 622. (/) Ibid. 634. FEROCIOUS AND VICIOUS ANIMALS. 253 for the plaintiff, but Judgment was arrested because no scienter was alleged (m). Where, however, a servant breaking an ungovernable Breaking nair of Horses in Lincoln's Inn Fields, ran over and hurt Worses in a r"^ . 1. T J .1 u. • ^ public place. a man, it was held that no scienter was necessary, as a place so frequented by the public was an improper place for Horse-breaking (w). But where a Bull made mad, from having been " cut Where a Mad or hoxed," escaped, through the defendant's negligence, ^"^^ wounds and tossed, gored and wounded the plaintiff, and a ver- dict was found for him, the Judgment was arrested, be- cause there was no scienter alleged in the Declaration (o). If through negligence a vicious beast goes abroad, Where a after warning or Notice of his condition, and kills a per- ^m/""^ ^^^^^ son, it is the opinion of Hale, that it is Manslaughter in son. ^^^' the owner (p). And if he purposely let him loose, and wander abroad, with a design to do mischief, even though it were merely to frighten people and make sport, and the beast kills a man, it is Murder in the owner (p). The owner of a vicious animal, after Notice of its Owner bound havinsr done an iniury, is bound to secure it at all events, ^9 secure a Vicious 3,ni- and is liable in Damages to a party subsequently injured, mal at all if the mode he has adopted to secure it proves insuffi- events. cient(5'). A person who keeps an animal accustomed to attack He is liable and bite mankind, with knowledge that it is so accus- ^° ^" action tomed, is prima facie liable in an action on the Case at for damage, the suit of any person attacked and injured by such ani- mal (r). The gist of the action being the keeping of the animal The gist of after knowledge of its mischievous propensities (r). ^^^ action. And it is not necessary to prove neo;lio^ence or default ^°^ neces- . , u • 4. 1 • r -i / \ ^^^y ^° prove m the securmg or taking care oi it (/•). negligence. If a man has an unruly Horse in his Stable, and leaves An unruly open the Stable Door, and the Horse in consequence es- ?^°^^^ escap- capes and does mischief, the owner is liable in an action stable!"^ ^ on the Case {s). (m) Scetchett v. Eltham, cited May v. Burdett, 9 Q. B. Freem. 534 (C. P.) 107. . (n) Michael v. Alestree, 2 (q) Blackman v. Simmons, Lev. 172 \ S.C.\ Ventr. 295. 3 C. & P. 138. (o) Bayntine v. Sharp, 1 (r) May v. Burdett, 9 Q. B. Lutw. 90. 101. (p) See Judgment— iJex V. (s) Mitchil v. Alestree, 1 Muggins, 2 Ld. Rayra. 1583, Vent 295. 254 Injury occa- sioned by a vicious Bull. Shooting a Dog for wor- rying Sheep. Shooting a Dog for wor- rying Fowls. NEGLIGENCE IN THE USE OF HORSES, &C. In an action for an injury by a vicious Bull, the plain- tiff recovered, although it appeared that the BuU was attracted by a Cow the plaintiff was driving past the field in which the Bull was, and that the plaintiff first struck the Bull on the head to drive him away from the Cow(ar). To justify a person in shooting a Dog for worrying his Sheep, it is not necessary to prove that he was shot in the act 5 but it is sufficient if it appear that he has been accustomed to worry Sheep, and that just before he was shot he had been worrying Sheep, and could not have been otherwise restrained from further doing so(^). A person cannot justify shooting a Dog worrying his Fowls, unless it appear that the Dog was in the very act at the time, and could not otherwise be prevented (z). But it would seem that if the transaction had taken place in the person's Poultry-yard, it would be enough to show that the Dog was pursuing the Fowl. Because when a Dog is killed pursuing Conies in a warren, it is sufficient to state that the Dog was pursuing Conies there, and it is not necessary to prove that the Dog could not other- wise be prevented killing them («). (a;) Blackman v. Simmons, 3 C. & P. 138. {y) Kellett v. Stannard, 4 Ir. Jur. 50 (Exch. Ir.) (2) Janson v. Brown, 1 Camp. 41. (a) Wadhurst v. Damme, Cro. Jac. 44. ( 255 ) CHAPTER III. THE LIABILITIES OF PARTIES HUNTING OR TRES- PASSING UPON THE LANDS OF ANOTHER. Freih Pursuit over ano- ther's Land 255 Pursuing Vermin ...... id. No unnecessary Da- mage 256 Digging for a Fox, 8^-c. . . id. Hunting for Amusement id. Earl of Essex v. Capel id. Huntsman liable for Da- mage done by the Field 257 Master of Hounds, when responsible for the Field 258 Hunting a Hare on ano- ther's Land id. Taking a Stag on ano- ther's Land id. Hunting a Stray Deer . . id. Who may kill Hares with- out a Game Certificate, id. Any Person may hunt Hares id. Continued Trespass .... id. Trespass in Search of Game 25 9 Hunting with Hounds or Greyhounds id. Laying Hands on a Tres- passer 259 Opposing Force to Force., id. Defence to an Action .... id. Horse with a Rider can- not be distrained • . . . id. Action o/ Trespass lies for riding over Land .... 260 But not where a Dog jumps into a Field, . . . id. Costs where Damages are less than 4:0s id. A Trespass after Notice. . id. Notice under 3 !^ 4 Will. 4, c. 24, s. 3 id. Notice transmitted by Post id. Maintenaance of Fences, . id. Gate of a Field left open. 261 Gate of a Railway Cross- id. ing left open id. Gate of a Railway Station left open id. HUNTING AND TRESPASSING. Where the Fox, Gray or Otter, and other noxious ani- Fresh pursuit mals, are pursued as Vermin, and the governing object ther'*?° d of the pursuers is their extirpation, as such, and not merely the amusement of *'a rww," the law, as laid down in the older authorities, is to a certain extent correct at the present day. It is laid down that one may justify hunting Foxes Pursuing over the ground of another because they are noisome v^™^- 256 NEGLIGENCE IN THE USE OF HORSES, &C. Vermin (a) ; and also Gray or Otter and other noxious animals, as they are injurious to the commonwealth (b). And in Gundry v. Feltham (c), Lord Mansfield, C. J., said, "By all the cases as far back as the reign of Henry the Eighth, it is settled that a man may follow a Fox into the grounds of another." No unneces- But a person so hunting must not unnecessarily trample sary damage. (Jqwr another man's hedges, nor maliciously ride over his grounds ; for if he does more than is absolutely ne- cessary he cannot justify it (c). Therefore, pursuing an animal as Vermin does not justify fifty or sixty people following the dogs(c?j. Digging for a A man cannot justify entering a close or digging up Fox, &c. the soil to hunt or take a Fox, Badger, &c., though it be for the public good(e). So that it appears a person cannot enter another's grounds to find Vermin, nor can he dig it out when it has run to earth. Hunting for Persons hunting for their own amusement, and going amusement, over the lands of another, are trespassers; and Fox- hunters, like all other Hunters, may be warned oiF, and then the plaintiff will have full costs, though the Jury do not give 40a\ damages ( /). Earl of Essex This point was decided by Lord Ellenborough in the V. Capei. pg^gg q£ j-^g Earl of Essex v. Capel (g), which settled the law on the subject and has never been questioned. An action of Trespass was brought for breaking, entering and hunting over the plaintiff's lands, and the defence was that the Fox was pursued as Vermin. But Lord Ellenborough said, "The defendant states in his plea that the trespass was not committed for the purpose of diver- sion 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 hesi- (a) Nicholas v. Badger, 3 3 M. 37, and the authorities T. R. 259, n. ; Gedge v. there cited. Minue, 2 Bulst 62. (/) Earl of Essex v. Capel, {b) Com. Dig. Pleader, 3 Hertford Summer Assizes. M. 37. 1809 ; Bowyer v. Cool<, 4 C. B. (c) Gundry v. Feltham, 1 236 ; S. C. 16 L.J. 180 (C.P.) T. R. 337. {g) Earl of Essex v. Capel, (d) Earl of Essex V. Capel, Hertford Summer Assizes, Hertford Summer Assizes, 1809, cited in Chitty on Game 1809. Laws, 31. (e) Com. Dig. Pleader, HUXTIXG AND TRESPASSING. 257 tate in sayino^ that the principal motive and inducement was not the killing of Vermin, but the enjoyment 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 diversion. These pleasures are to be taken only where there is the consent of those who are likely to be injured by them, but they must be necessarily subservient to the consent 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 cannot 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 therefore a right to follow the Dogs and trespass on other people's lands. I cannot see what it is that is contended for by the defendant. The only case which will at all bear him out is that of Gun- dry V. Feltham (h) ; if it be necessary I should be glad that that case should be fully considered. I have looked into the case in the Year Book(z) ; that seems to be no- thing more than the case of a person who had chased a Stag from the forest into his ovni land, where he killed it ; and on an action of Trespass being brought against the forester who came and took the Stag, he justified, that he had made fresh suit after the Stag ; and it was held that he might state that he was justified, and the plaintiff took nothing by his writ. This is the case upon which that of Gundry v. Feltham (h) is built, but it is founded only on an obiter dictum of Justice Brook, and it does not appear to me much relied on. But even in that case it is emphatically said by the Judge, that a man may not hunt for his pleasure or his profit, but only for the good of the common weal, and to destroy such noxious animals as are injurious to the common weal. Therefore, according to this case, the good of the public must be the governing motive (A)." The Swry, under his Lordship's dii-ection, found a verdict for the plaintiiF. And in an action against a Huntsman for hunting Huntsman over the lands of another, Lord Ellenborough, C. J., held ^^ge done by that damages might be recovered, not only for the mis- the field. {h) Gundry v. Feltham, 1 Hertford Summer Assizes, T. R. 337. 1809, cited in Chitty on Game (0 12 Hen. 8, p. 9. Laws, 31. {k) Earl of Essex v. Capel, 258 Master of Hounds when respon- sible for the field. Killing a Hare on ano- ther's land. Taking a Stag on ano- ther's land. Hunting a stray Deer. Who may kiU Hares -with- out a Game Certificate. Any person may hunt Hares. Continued trespass. NEGLIGENCE IN THE USE OF HORSES, &C. chief immediately occasioned by the defendant himself, but also by the concourse of people who accompanied him (Z). And in another case it was laid down by Lord Ten- terden, C. J., that if a gentleman sends out his Hounds and his 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 answer- able for the trespass they may commit in so doing, unless he distinctly desires them not to go on those lands (m). If A. starts a Hare in the ground of B., and hunts it into the ground of C. and kills it there, the property is in A. the Hunter ; but A. is liable to an action of Trespass for hunting in the grounds as well of B. as of C. (w). And where a Stag hunted by the Hounds of B. was run into the bam of A., it was held that B. and his ser- vants had no right to enter the barn to take the Stag, and that if they did so they would be trespassers (o). But where a Deer strayed from a Park on to the plaintiff's land, and eat his grass, and he hounded it with Greyhounds, which pursued it into the owner's Park, and killed it there, the Court of Common Pleas held that he was justified in doing so {p). Persons in the occupation of inclosed Ground, and in certain cases owners, may kill {q) Hares without a Game Certificate (r). The owner may also give authority'" to kill Hares, to be limited to one person at the same time in any one Parish. This authority is to be sent to the Clerk of the Peace for Registration, who is also to re- ceive Notice of revocation {s). And it is " lawful for any person to pursue and kill, or join in the pursuit and killing of, any Hare by cours- ing with Greyhounds, or by hunting with Beagles or other Hounds, without having obtained an Annual Game Certificate (0-" Where acts terminate in themselves, and once done cannot be done again, there can be no continued tres- (l) Hume V. Oldacre, 1 {p) Barrington v. Turner, Stark. N. P. C. 351. (m) Baker v. Berkley, 3 C. & P. 32. (n) Sutton v. Moody, Ld. Raym. 250. (o) Baker v. Berkley, 3 C. & P. 32. 3 Lev. 28. (q) Not to authorize the laying of Poison, 11 & 12 Vict c. 29, s. 5, Appendix. (r) Ibid. s. 1. (5) Ibid. s. 2. (t) Ibid. s. 4. HUNTING AND TRESPASSING. 259 pass, as hunting and killing a Hare or five Hares. But hunting may be continued as well as spoiling, consuming or cutting grass (w). Under 1 & 2 Will. 4, c. 32 (:r), trespassers in search Trespass in of Game may be requii-ed to quit the land, and to tell ^^^^^ °^ their names and abodes, and in case of refusal may be arrested and brought before a Justice within twelve hours. And any trespasser , on conviction before a Jus- tice, is to forfeit a sum not exceeding 5^., together with the costs of conviction (a:). But Hunters in fresh pursuit of Deer, Hare or Fox Hunting with (with Hounds or Greyhounds) started on other lands, Qj^hounds are exempted from the provisions of 1 & 2 Will. 4, c. 32, against trespassers {y). The owner of a close must first request a trespasser to Laying hands depart before he can lay hands on him to turn him out, passer.^^' because every impositio manuum is an assault and bat- tery, which cannot be justified on the ground of a person breaking into the close, without a request {z). But in case of actual force, as in burglary or breaking Opposing open a door or gate, it is lawful to oppose force to force ; ^°^^^ ^° ^°'^'^®- and if one breaks down the gate, or comes into my close vi et armis, I need not request him to be gone, but may lay hands on him immediately, for it is but returning vio- lence with violence (z). Therefore to Trespass for an assault and battery, it Defence to an was held that the defendant might plead that the plain- action, tiff", with force and arms and with a strong hand, endea- voured forcibly to break and enter the defendant's close, whereupon the defendant resisted and opposed such en- trance, &C.5 and it was held that if any damage happened to the plaintiff it was in consequence of the defence of the possession of the close (a). A Horse cannot be distrained damage feasant if there Horse with a be a rider upon him; for if such a distress were permitted, "e distrained, it would perpetually lead to a breach of the peace (&). And indeed if a man or woman be riding a Horse, it cannot be distrained at all(c). (m) Monkton v. Pashley, 2 (a) Weaver y . Bush, 8T. R. Salk. 639. 78. (or) 1 & 2 Will. 4, c. 32, {h) Storey \. Robinson, 6 T. s. 31. R. 138. (j/) Ibid. s. 35. (c) Co. Litt. 47 a, cited (z) Green v. Goddard, 2 Parsons v. Gingell, 4 C. B. Salk 640. 550 ; and see Webb v. Bell, 1 Sid. 440. •2fi0 NEGLIGENCE IN THE USE OF HORSES, &C. Action of Trespass lies for riding over land. But not where a Dog jumps into a field. Costs where damages are less than 40s. A trespass after notice. Notice under 3 & 4 Vict. c. 24, s. 3. Notice trans- mitted by Post. Maintenance of Fences. A man has an action of Trespass against another for riding over his ground, though it do him no damage ; for it is an invasion of his property, and the other has no right to come there (e). But where a Dog jumps into a field without the con- sent of its master, it is not a trespass for which an action will lie (/). Where the Damages are less than 40s., Costs are not to be recovered in an action of Trespass or Case, unless upon the Judge's Certificate, made immediately after- wards, that the action was brought to try a right, or that the trespass was " wilful and malicious (^)." But where there is a trespass after Notice the plaintiff is entitled to full costs, though he recover less than 40s., and though the Judge refuse to certify" that the trespass was wilful and malicious. And the proper mode of ob- taining such costs is to enter a suggestion on the Record, that the trespass was committed after Notice (7i). Under 3 & 4 Vict. c. 24, s. 3, the '' Notice not to trespass thereon or therein" must be " served, by or on behalf of the O^vner or Occupier of the land trespassed over, upon, or left at the last reputed place of abode of the defendant or defendants." In the case of Bowyer v. Cook (i) the Notice, although not " served on the defendant or left at his last reputed or known place of abode," but transmitted to his address by Post, was admitted under a Judge's Order, and read at the trial. The obligation to make and maintain Fences, both at common law and by the Railway Clauses Consolidation Act (h), is only as against the owners or occupiers of the adjoining close. Thus where the plaintiff's Sheep tres- passing on A.'s close, strayed upon the defendant's Rail- way which adjoined, through a defect of Fences which the defendants were bound as against A. to make and maintain, and was killed ; it was held by the Court of Common Pleas that the plaintiff could not recover (/). (e) See per Holt, C. J., Ashby V. White, 1 Smith's L. C. 125. (/) See per Parke, J., Brown v. Giles, 1 C. & P. 119. {g) 3 & 4 Vict c. 24, s. 2. {h) Bowyer v. Cook, 4C. B. 236; ^. C. 16 L.J. 180 (C. P.) (i) Bowyer v. Cook, 4 C. B. 237, n. {k) 8 & 9 Vict. c. 20, s. 68. (/) Ricketts v. East and West India Docks and Birming- ham Junction Railway Com- pany, 21 L. J. 201 (C. P.) HUNTING AND TRESPASSING. 261 A person whose field adjoins a Highway may leave his Gate of a field open and permit cattle to pass over it. He cannot J^g^^*^^^ distrain them if he has suffered them to come there ; but he commits no breach of duty by leaving the field open (m). The following important case decided that a Railway Gates of a Company is liable for damage occasioned to a trespasser crossing left in consequence of the Gate of one of its level crossings open, having been left open. It appeared that the Y. Railway passed over a Highway on a level, and that there were Gates across each end of the road, so crossed by the line of Railway. Some Horses belonging to the plaintiflf leaped over the fence of a field, in which they had been placed, into a second field, and from that over a broken gate into a thh'd field, all tliree being the plaintiff's fields; thej'- then strayed through an open gate of the third field into the highway crossed by the Railway on a level. One of the gates across the end of the road where it was crossed by the line of Railway having been left open, the Horses strayed through it on to the Railway, where they were soon afterwards killed by one of the Company's Trains. An action was brought by the plaintifi" against the Railway Company, who contended that the Horses were, under the circumstances, tres- passers on the Highway. It was held by the Court of Queen's Bench, that the plaintiff was entitled to recover the value of his Horses from the Company, because the obhgation imposed on them by Statute 5 & 6 Vict. c. 55, s. 9, to keep the Gates closed, was not only against Cattle travellino: on the road but also against all Cattle straymg there («)• Nothing is provided under the Railway Clauses Con- Gate of a solidation Act'O) with respect to the Gates or Fences of tionieftope^n. a Railway Station. And the question is now under the consideration of the Court of Common Pleas, whether a Railway Company is liable for an injury sustained by a trespasser in consequence of damage incurred on a Rail- way, to which access had been obtained through the open (m) See per Patteson, J., North Midland Railway Com- Fawcett v. York and North pany, 16 Q. B. 610; S. C. 15 Midland Railway Company, \Q Jur. 173 (Q. B.); S. C. 20 Q. B. 617 ; S. C. 20 L. J. 222 L. J. 222 (Q. B.) (Q. B.) (o) 8 & 9 Vict. c. 20. (n) Fawcett v. York and 262 NEGLIGENCE IN THE USE OF HORSES, &C. Gate and defective Fences of its Station yard. For it appeared in the case in question that some Horses had strayed into a High road, and thence into a Railway Station, the Gate of which was open. The Station yar(l was fenced from the Railway, but there being a gap in the Fence the Horses got through the gap on to the Rail- way and were killed by a Train {p), {p) Manchester, Sheffield and v. Wallis, Nov. 11, 1853 (C. Lincolnshire Railway Company P.) ( 263 ) PART III. RACING, WAGERS, AND GAMING. CHAPTER I. THEIR HISTORY, RISE, AND PROGRESS IN THIS COUNTRY. The Time of Julius Ceesar 263 Reign of Athelstan 264 Reign of William the Con- queror id. Reign of Henry the First id. Reign of Henry the Se- cond id. Reign of Richard the First id. Reign of John 265 Reign of Edward the Se- cond id. Reign of Edward the Third . id. Reign of Richard the Se- cond id. Reign of Henry the Fourth id. Reign of Henry the Se- venth id. Reign of Henry the Eighth 266 Reign of Edward the Sixth 268 Reign of Philip and Mary 269 Reign of Queen Elizabeth id. Reign of James the First 270 Reign of Charles the First 271 Reign of Charles the Se- cond id. Reign of William the Third 272 Reign of Queen Anne . . . id. Reign of George the First 274 Reign of George the Se- cond id. Reign of George the Third 276 Reign of George the Fourth id. Reign of William the Fourth 277 Reign of Queen Victoria., id. The first mention of the British Horse is made by Julius The time of Ciesar ; and when he invaded the Island, he was opposed J^husCaesai by a host of war- Chariots which must have been drawn by active powerful Horses. They seem to have been pretty numerous, as Cassivelaunus, on dismissing the main body of his army, retained four thousand war- Chariots (a). 22. (a) See Caes. Bell. G. 5, &c., and Lib. U. K. " The Horse," 264 RACING, WAGERS AND GAMING. Reign of Athelstan. Reign of William the Conqueror. Reign of Henry the First. Reign of Henry the Second. Reign of Richard the First. Athelstan, who was second in succession from Alfred the Great, received from Hugh Capet of France, as an acceptable present, several German Running Horses (b) ; and in a.d. 930, he decreed that no Horses should be sent abroad for sale, or on any account, except as Royal presents (c). William the Conqueror was very much indebted to his superiority in Cavalry for the Victory at Hastings ; he introduced the Spanish Horse, and his favourite charger was a Spaniard. In his Reign there was a marked im- provement in the breed of Horses, and about a.d. 1066, we have on a piece of tapestry wove at Baj'^onne, the figure of a man driving a Horse and harrow, being the earliest notice of the use of Horses in Field labour (c). In the reign of Henry the First, a.d. 1121, the first Arabian Horse on record was introduced by Alexander King of Scotland, who presented it and its furniture to a Church (c). In the reign of Henry the Second, forty years after- wards, Smithfield was celebrated as a Horse market. Fitz Stephen gives the following animated account of the manner in which Hackneys and Charging Steeds were tried there by racing against one another : " When a Race is to be run by this sort of Horses, and perhaps by others, which also in their kind are strong and fleet, a shout is immediately raised and the common Horses are ordered to withdraw out of the way. Three jockeys, or sometimes only two, as the match is made, prepare them- selves for the contest. The Horses on their part are not without emulation ; they tremble and are impatient, and are continually in motion. At last the signal once given, they start, devour the course, and hurry along with un- remitting swiftness. The jockeys, inspired with the thought of applause and the hope of victory, clap spurs to their willing Horses, brandish their whips and cheer them with their cries" (c?). An old Metrical Romance records the excellence and great value of two Horses belonging to Richard Cceur de Leon, which he purchased at Cyprus, and which there- fore were, probably of Eastern origin (e). (6) See Markham's Mais- ter-Peece, 16th edition. (c)Lib.U.K." The Horse," 23. {d) See Fitz Stephen, and Lib. U. K. "The Horse," 24. (e) Lib.U.K. "TheHorse," 24. THEIR HISTORY, RISE AND PROGRESS. 2G5 John accumulated a very numerous and valuable stud Reign of of Horses ; and he formed our breed of draught Horses '^°'^'^* by importing one hundred chosen Flemish Stallions (y). Edward the Second, one hundred years afterwards, in Reign of Ed- the beginning of the fourteenth century, purchased thirty ^^^^^ ^ ^" Lombardy War Horses, and twelve heav}* draught Horses. Lombardy, Italy and Spain at that time sup- plied the most valuable Cavalry or Parade Horses (f). Edward the Third devoted one thousand marks to the Reign of Ed- purchase of fifty Spanish Horses, and formal applications xhird! ^ were made to the Kings of France and Spain for their safe conduct. The King had many Hunnbig Horses {g), the precise meaning of which term is not quite clear; and he prohibited the exportation of Horses under very heavy penalties (^). In the reign of Richard the Second, the price of Horses Reign of Ri- rapidly increased, and to such an extent, that in a. d.^^^^'^ *^^ s^" 1386, a proclamation was issued regulating their price ; and it was ordered to be published in Liucolnshh'e, Cam- bridgeshire, and the East and West Ridings of York- shire (i). In this Reign Games are first mentioned in the Statute Book ; and we find that in a. d. 1389, Servants in husbandry or Labourers were prohibited wearing any sword, buckler, or dagger ; or playing at Tennis, Foot- ball, Quoits, Dice, Casting of Stone kails, and such hke importune Games {k\ This Statute Avas confirmed and extended in the Reign Reign of of Henrj- the Fourth, a. d. 1409, and an additional pe- ^^'^IJ^^^ nalty of six dajV imprisonment was imposed (7). In the Reign of Henry the Seventh, a. d. 1494, we Reign of find the Legislature paying much attention to the breed Henrj- the of Horses, as being of great importance to the defence of the kingdom. It appears that Horses had at this time become scarce and expensive, and it was supposed to be the consequence of many Horses and Mares having been exported. To remedy this evil an act was passed, which prohibited any Horse or Mare being carried out of the Realm without the King's Licence. But any Denizen might carry a Horse beyond the sea on making oath that (/)Lib.U.K."Thenorse," (/i) Lib. U.K." The Horse," 25. 25. {g) See Markham's Mais- (i) Ibid. 26. ter-Peece, 16th Edition, and {k) 12 Ric. 2, c. 6. Lawrence on Horses, vol. 1, {I) 11 Hen. 4, c. 4. cap. 5. % N % 266 RACING, WAGERS AND GAMING. it was for his own use ; and any Mare of three years old or upwards, whose price was not above six shillings and eight pence, might be exported, the owner, however, being compelled to sell her at the port to any person who should bid him seven shillings (w), Keign of In the Reign of Henry the Eighth, a. d. 1530, it was Henry the further enacted, that any person conveying any Horses, ^^ ' Geldings or Mares to any parts beyond the sea, without the King's Licence, should forfeit forty shillings for every Poll (n). It appears, however, that notwithstanding these enactments, good Horses continued to be scarce, and the breed of "good, swift and strong Horses" was supposed to have decayed on account of '' little Horses and Nags of small stature and value being suffered to depasture and also to cover Mares and Felys of very small stature." To remedy this, an act was passed in a. d. 1535, com- pelling the owners and occupiers of Deer-parks of a mile or upwards in circumference, to keep a certain number of foal Mares, in proportion to the extent of their grounds, such Mares to be at least thirteen hands in height, and to be covered by Horses of fourteen hands or upwards (o). This act did not extend to the counties of Westmoreland, Cumberland, Northumberland and the Bishoprick of Durham (j9). The breed, however, still continued to decay and di- minish ; and it was supposed to be in consequence of ** little stoned Horses and Nags, of small stature and of little value," being suffered to depasture in " the Forests, Chases, Moors, Marshes, Heaths, Commons and waste Grounds in the Realm," and also to cover Mares feeding there. The legislature, to remedy this evil, passed an- other act in A. D. 1540, which prohibited any stoned Horse, under fifteen hands, being pastured on such lands throughout the greater part of England and the whole of Wales, or under fourteen hands elsewhere (q). Any , person, on measuring a Horse which was under the law- ful height, might seize and retain it for his own use (r) ; the pastures were to be driven once a year, and any un- likely looking beasts were to be killed (s); and the owner of every Horse, Mare or Gelding infected with the Scab, (m) 11 Hen. 7, c. 13. (q) 32 Hen. 8, c. 13, s. 2. (n) 22 Hen. 8, c. 7. (r) Ibid. s. 3. (o) 27 Hen. 8, c. 6, ss. 2, 4. (s) Ibid. ss. 6, 7. Ip) Ibid. s. 5. i i THEIR HISTORY, RISE AND PROGRESS. 267 at any time pasturing on these grounds, was to forfeit ten shillings (t). An act was also passed prescribing the number of stoned trotting Horses for the saddle each man was to keep, according to his degree (u). However, these enactments do not seem to have had the desired effect, as the breed of Horses had sadly degenerated ; for Blundeville, who wrote in the reign of Queen Elizabeth, tells us that they consisted principally of strong clumsy beasts, the few lighter ones being weak and without bottom. It appears that in this Reign Races were first esta- blished in various parts of England, and the first meet- ings were held at Chester and Stamford, but there was no regular system, and all sorts of Horses ran. The Prize was usually a wooden bell adorned with flowers ; and this afterwards was exchanged for a silver bell, and " given to him who should run the best and furthest on Horseback on Shrove Tuesday." Hence the phrase of '* bearmg away the he\\(x)." In this Reign also a varietj'- of regulations were made with regard to Gaming, some of which are in force at the present day. The object of the legislature was to encou- rage Archery, and in a. d. 1511 it was enacted, that '' all sorts of men under the age of forty years" should " have bows and arrows and use shooting," and that " unlawful Games " should not " be used." This, however, was followed by a much more comprehensive act, which was passed in a. d. 1541 ; namely, 33 Hen. 8, c. 9, being a " Bill for the maintaining Artillery and the debarring unlawful Games." It professes in its preamble to be founded on a petition from the Bowmen and others con- cerned in the making of implements of Archery ; and they complained that " many and sundry new and crafty Games and Plays, as Logetting in the fields, Shde-thrift, otherwise called Shove-groat," had caused the decay of Archery (3/). It made various regulations concerning the use of bows and arrows, and imposed a penalty of forty shillings a day for the maintenance of " any com- mon House, Alley or Place of Bowling, Coyting, Cloysh- cayles. Half-bowl, Tennis, Dicing Table or Carding," or any Game previously prohibited by Statute, or any (0 32 Hen. 8, c. 13, s. 9. 28. (m) 33 Hen. 8, c. 5. (y) 33 Hen. 8, c, 9. ss. 1, 2. (x) Lib. U.K. "TheHorse," See Appendix. n2 % 268 RACING, WAGERS AND GAMING. unlawful new Game which might afterwards be in vented (z). There was a penalty of six shillings and eightpence each time for using and haunting any of the above-men- tioned " Houses or Plays and there playing (a)." Any Justice of the Peace, Mayor, Sheriff, BailiflP, &c., had authority to enter any houses or places where un- lawful Games were suspected to be held, and take and imprison both the keepers and persons resorting and playing there, until the keepers should find sureties and the other parties should give security to abstain from such practices for the future (b). The chief authorities in Towns were to make weekly search in such places as were suspected of being Gaming houses, or, at the fur- thest, once a month, under a penalty of forty shillingsfc); and the Leases of Houses used for unlawful Games were to be void {d). " No manner of artificer or craftsman, husbandman, K apprentice, labourer, servant at husbandry, journeymen, 1^ mariners, fishermen, watermen or any serving man," was to play at "the Tables, Tennis, Dice, Cards, Bowles, Closh, Coy ting, Logating, or any other unlawful Game out of Christmas, under the pain of twenty shillings for- feit each time ;" and in Chi-istmas they were to play in "their master's houses or in their master's presence," and no person was to play at any " Bowl or Bowls in open places out of his garden or orchard," under the penalty of six shillings and eightpence (e). Under certain restrictions and regulations, however, and on giving sufficient security, a person might sue for a Placard to have common Gaming in his house (f). And a master might license his servant to play with him or any other gentleman at his own house or in his pre- sence (g). Also a nobleman or person with an income of lOOZ. a year might license his servants to play among themselves at his or their houses, gardens or orchards (^). Reign of In the Reign of Edward the Sixth, it was found that s"*^Th'^'^ *^® a great many Horses had been exported to foreign coun- tries, and particularly to Scotland, which was supposed (z) 33 Hen. 8, c. 9, s. 11. (e) 33 Hen. 8, c. 9, s. 16. (a) Ibid. s. 12. (/) Ibid. s. 13. (b) Ibid. s. 14. (g) Ibid. s. 22. (c) Ibid. s. 15. (h) Ibid. s. 23. (d) Ibid. s. 21. i THEIR HISTORY, RISE AND PROGRESS. 269 to have been " the occasion of strength to the King's enemies," and to have caused the decay of the breed of good Horses ; and consequently the Legislature in a. d. 1547 passed "An Act for not conveying Horses out of the Realm," by which every person endeavouring to convey a Horse into Scotland, not only forfeited the animal, but became liable to a penalty of forty pounds (i). But every person was permitted to take abroad with him Horses or Geldings, on making oath that he took them for his own use on the journey, and not with intent to sell them (k) ; and any Mare whose value did not exceed ten shillings, might be exported (Z). It appears that so far the Statutes on the subject of Reign of Gaming had been directed against it, because it was sup- ^^^^^f ^^^ posed to withdraw men from the practice of Archery, which seems to have been neglected, where these other sports had obtained popularity. But in the reign of Philip and Mary, Gaming had become very inconvenient on other grounds ; for it appeared, that " by reason of divers sundry licenses theretofore granted to divers per- sons, as well within the City of London and the Suburbs, as elsewhere," for " keeping of houses, gardens and places for Bowling, Tennis, Dicing, White and Black, Making and Marring, and otlier unlawful Games, many unlawful assemblies, conventicles, seditions, and con- spiracies," had been daily and secretly practised, and robberies and other misdemeanours had been committed by idle and misruled people resorting there." To remedy these evils an Act was passed in a.d. 1555, " to avoid divers Licenses for houses where unlawful Games be used," and all Placards, Licenses or Grants were made void(m). In the same year of the reign an Act was passed, " Against the buying of Stolen Horses," and certain regulations were prescribed for the sale of Horses at Markets and Fairs (n). Notwithstanding the regulations made in the Eeign of Reign of Edward the Sixth, it appears that a large number of ^^^^^^ ^^^^^" Horses were exported by persons who unscrupulously took the required oath, and the difficulty of punishing them was so great, that in the reign of Queen Elizabeth, (i) 1 Edw. 6, c. 5, s. 1. («) 2 & 3 Ph. & M. c. 7, (k) Ibid. s. 6, Appendix; and see Stolen (Z) Ibid. s. 9. Horses, ante, Part 1, Chap. 3. (»») 2 & 3 Ph. & M. c. 9. RACING, WAGERS AND GAMING. A.D. 1562, the permission to persons to take Horses abroad for their own use was repealed (o). It was now found that in the Isle of Ely and in the Counties of Cambridge, Huntingdon, Northampton, Lin- coln, Norfolk and Suffolk, the fens were so wet and rotten that they could not carry stoned Horses of the size mentioned in the Act of Henry the Eighth (/>), without danger of their being mired or drowned. The Horses of many poor men had been seized as being beneath the statutable height, and the breed of Horses and all the tillage and carriage within the district had been very much hindered. To remedy these evils, an Act was passed in this Reign, a.d. 1565, by which the statutable height of Stoned Horses in these fen Counties was reduced to thirteen hands (q). We have seen that in the Eeign of Philip and Mary, certain forms were prescribed to give publicity to the sale of Horses at Markets and Fairs, so that if the Horse had been stolen, the owner might have an opportunity of claiming it(r). But these forms seemed to have entirely failed in their object, because in this Reign, Horse- stealing had grown so common, that Horses were not safe in Pastures or Closes, and hardly so in their Stables ; and there was always a ready sale for them in distant Fairs and Markets. However, in a.d. 1589, an Act was passed prescribing certain additional forms to be observed in sales at such places, and making it a matter of greater difficulty to sell a stolen Horse (5). This is the Act now in force, and which we have already con- sidered. Reign of In the Reign of James the First, an immaterial and trifling alteration was made in the Law of Gaming by the repeal of the Statute of Richard the Second in a.d. 1623 (t). But an important change took place with regard to Horse Racing. Before this time. Horse Races were mere trials of speed and strength, without any ac- knowledged system, and were mixed up with other exercises of skill and activity. The pastime had con- tinued on the same footing since the time of Henry the Eighth, but this Reign may be considered the era in which Racing began to be ranked as a distinct sport. (0) 5 Eliz. c. 19. (s) 31 Eliz. c 12, Appen- (p) 32 Hen. 8, c. 13. dix ; and see Stolen Horses, (q) 8 Eliz. c. 8. ante, Part 1, Chap. 3. (r) 2 & 3 Ph. & M. c. 7. (t) 21 Jac. 1, c. 28, s. 11. James the First. THEIR HISTORY, RISE AND PROGRESS. 271 James the First was exti-emely fond of field sports ; he established Races on a new footing ; under his patronage Rules were promulgated for then* regulation, and his favourite courses were Croydon and Enfield Chase. From this period also began the practice of breeding a distinct kind of Horse for the especial purpose. And we find that about this time an Arabian Horse, and also the White Turk, the Helmsly Turk, and Fairfax's Morocco Barb, were brought into the kingdom ; and a consider- able improvement in the breed of the animal was thus efiected(M). Charles the First established Races in Hyde Park and Reign of at Newmarket ; yet, although these were discontinued ^1^^^^®^ *^'® during the Protectorate, attention was not withdi-awn from breeding, and Cromwell had his stud of Race Horses (x). On the Restoration, a new impulse was given to gaiety Reign of and amusement of every kind, and the Newmarket meet- Charles the ings were revived. Charles, who was a great patron of Horse Racing, encouraged it by the gift of Royal Plates at the principal Courses. He purchased brood Mares and Stallions in the Levant, which were principally Barbs and Turks ; and the breed was also much improved by Horses brought over from Tangiers, as part of the Dowry of his Queen, Catherine of Braganza (y). No sooner had Horse Racing been fully established, than we find an Act was passed to endeavour to prevent the evils which have unfortunately always attended it. The Act was 16 Car. 2, c. 7, which came into operation A.D. 1664, and in it Horse Racing is mentioned for the first time in the Statute Book. It is intituled " An Act against deceitful, disorderly and excessive Gaming,'^ and recites that " all lawful Games and exercises should not be otherwise used than as innocent and moderate recre- ations, and not as constant trades or callings to gain a living or make unlawful advantage thereby ; and that by the immoderate use of them many mischiefs and incon- veniences arise, to the maintaining and encouraging of sundry idle, loose and disorderly persons in their dis- honest, lewd and dissolute course of life, and to the cir- («) Lib.U.K."The Horse," {y) Lib.U.K." TheHorse," 28 ; and 31 Law Mag. Q5. 29 ; and Martin arguendo, Ap- ■{x) Lawrence on " The plegarth v. Colley, 10 M. & Horse," vol. i. p. 218 ; and W. 728. Lib. U.K. ''TheHorse," 28. •272 RACING, WAGERS AND GAMING. Reign of William the Third. Reign of Queen Anne. cumventinof, deceiving, couzening and debauching of many of the younger sort, both of the Nobility and Gentry, and others, to the loss of their precious time and the utter ruin of their estates and fortunes, and with- drawing them from noble and laudable employments and exercises (2^)." By this Act persons winning by fraud, or cheating at Cards, Dice, Tables, Tennis, Bowles, Kittles, Shovel-board, Cock-fightings, Horse Races, Dog- matches, Foot Races, and all other Games and Pastimes, were to forfeit treble the sum or value of the money so won (a). Every person winning above lOOZ. on ticket or credit at these or any other Games and Pastimes, either by bearing a part in them or betting, was discharged from paying any part of the money ; all securities given for it were to be void ; and the winner was to forfeit treble the sum above lOOZ. so won(Z>); and it was held that an agreement to run a Horse Race for more than lOOZ. a-side was prohibited bv this statute (c). In the Reign of William the Thhd, a.d. 1699, it appears that certain Games called Lotteries had been set up throughout England and AVales, by means of which great sums of money had been fraudulently got from unwary persons, and from the Children and Servants of several Gentlemen and Merchants; to remedy this, an Act was passed " for suppressing Lotteries,'' which de- clared them to be public nuisances, and imposed a penalty of 500Z. on every keeper of a Lottery, and 20Z. on every player (^Z). In the Reign of Queen Anne the Darley Arabian was introduced by Mr. Darley, which tended very much to form our present breed of Horses. People began to pay more attention to Pedigree and Breed, and we find it noticed as remarkable, that a Horse called Bay Bolton was got by a farmer's Horse without a pedigree (e). It was found in this Reign that the Act of Charles the Second was insufficient to prevent the mischiefs arising from the spirit of Gambling then existing, and which it appears had become so very prevalent that further legis- lation was required. Therefore, in a.d. 1710, 9 Anne, (2) 16 Car. 2, c. 7, s. 1. (a) Ibid. s. 2. (b) Ibid. s. 3. (c) Edgebury v. Rosindale, 2 Lev. 94 ; S.C.I Ventr. 253. (d) 10 & 11 W. 3, c. 17. (e) Lawrence on " The Horse," vol. i. p. 222. THEIR HISTORY, RISE AND PROGRESS. c. 14, was passed, being " An Act for the better prevent- ing of excessive and deceitful Gaming.'' It recited that " the laws now in force for preventing the mischiefs wliich may happen by Gaming have not been found suf- ficient for that purpose ;" and enacted, that all mortgages and securities, where the consideration was for money won by Gaming or Betting, or for repayment of money lent at Gaming or Betting, were to be void; that all propertj'^ so encumbered was to devolve to such person as would have been entitled to it in case the owner were dead ; and that all grants or conveyances made to pre- vent this were to be deemed fraudulent and void (/*). The loser of lOZ. or upwards by playing or betting at any Game might sue for the money so lost within three months ; and if he did not sue within that time any other person might do so, and recover treble the value, one moiety to go to the informer and the other to the poor of the parish where the offence was committed (^) ; any person winning by fraud in betting or playing at any Game, or any person winning above lOZ. at one sitting, might be indicted, and on conviction forfeit five times the value so won, and if he had cheated, be deemed infamous, and suffer such corporal punishment as in cases of wilful perjury (^)._ Two Justices might cause persons suspected of having no visible estate or calling, and who appeared to support themselves by Gaming, to be brought before them, and find sureties for their good behaviour for the space of twelve months (i) ; during which time, if they played or betted to the amount of twenty shillings at any one time or sitting, thej" were to forfeit their recognizances {j) j and any person assaulting or challenging another on ac- count of money won at play was to forfeit all his goods, and be imprisoned two years (A). But this act was not to prevent Gaming in any of the Queen's Palaces during her residence there {I). The word " Games" used in this act was held to comprehend Horse Races (m) and other Games mentioned in 16 Car. 2, c. 7, and therefore any race for £10 aside or upwards was illegal. In this reign (/) 9 Amie, c. 14, s. 1. (j) 9 Anne, c. 14, s. 7. (g) Ibid. s. 2 ; Frederick, (k) Ibid. s. 8. Bart, v. Lookup, 4 Burr. (l) Ibid. s. 9. 2018. (m) Blaxton v. Pye, 1 Wils, {h) 9 Anne, c. 14, s. 5. 309; Clayton v. Jennings, 2 (0 Ibid. s. 6. W. Bla. 706. n5 RACING, WAGERS AND GAMING. Reign of George the Second. two acts were passed to enforce 10 & 11 Will. 3, c. 17, with regard to Lotteries (n). In A. D. 1721, and the following year of the reign of ■ George the First, an attempt was made by further legis- lation to suppress unlawful Lotteries (o), and to prevent foreign Lotteries being carried on in this kingdom (p). In the Reign of George the Second it appears that there was an excessive increase in Gaming, and to re- medy the evil, 12 Geo. 2, c. 28, was passed a. d. 1739, being " An Act for the more effectual preventing of ex- cessive and deceitful Gaming." This Act declares the Games of the Ace of Hearts, Pharaoh, Bassett and Hazard to be Games or Lotteries by cards or dice within the meaning of the Act, and imposes a penalty of £200 on every person setting up such Games or Lotteries, and a penalty of £50 on every person adventuring at them (q). An Act was also passed to make more effectual 33 Hen. 8, e. 9 (r) ; and another to prevent the selling chances in Foreign Lotteries (s). It was found after the passing of 9 Anne, c. 14, that the number of Horse Races had very much increased ; and in consequence of their being run under £10 a side, and therefore for small Plates, they had contributed very much to the encouragement of idleness, and the breed of strong and useful Horses was supposed to have been much prejudiced. The Legislature, endeavouring to remedy these evils, passed 13 Geo. 2, c. 19, in a. d. 1740, which was " An Act to restrain and prevent the excessive in- crease of Horse Races." By this Act all Horses were to be entered by their real o\vners, and no person was to start more than one for the same Plate, under pain of forfeiting the Horse (^). No Plate w^as to be run for under the value of £50, and any person starting a Horse for a Plate of smaller value was to forfeit £200, and any person advertizing such a Race was subject to the penalty of £100 (m) . An arbitrary standard of weights was fixed, a five-year-old Horse was to carry ten stone, a six-year- (n) These were 9 Anne, c. 2, 3, 6, ss. 56, 57 ; and 10 Anne, (r) 2 Geo. 2, c. 28, s. 9, c. 26, s. 109. Appendix. (o) 8 Geo. 1, c. 2, ss. 36, (s) 6 Geo. 2, c. 35, ss. 29, 37. 30. (p) 9 Geo. 1, c. 19, ss. 4, 5. (t) 13 Geo. 2, c. 19, s. 1. Iq) 12 Geo. 2, c. 28, ss. 1, (m) Ibid. s. 2. THEIR HISTORY, RISE AND PROGRESS. old eleven stone, and a seven-year-old twelve stone, under a penalty of £200 (x), and every Race was to be begun and ended in the same day(y). The entrance money was to be repaid to the second best Horse (^r). And gifts left for annual Races were not to be altered (a). There appears to have been a distinction in this statute between a Match and a Race, for at whatever place a Race might be run, it must always have been for a Plate of £50 or upwards (b). But it seems that a Match was either to be run at Newmarket or Black Hambleton, or the Plate was to be worth £50 or upwards (c). This Act also prohibited a Game called Passage, which had just then been invented, and was in great vogue, and also all Games ^\ith Dice except Backgammon (d ). These enactments with regard to weights were pro- bably found so very inconvenient and useless, that in A. D. 1745, 18 Geo. 2, c. 34, was passed, which was "An Act to explain, amend and make more effectual the Laws in being to prevent excessive and deceitful Gaming ; and to restrain and prevent the excessive ina'ease of Horse- races." It appears that a Game called Roulet or Roly poly was then very much played, and though many had been ruined by it, the law was found insufficient to pre- vent it. This statute therefore enacted, that any person keeping a place for playing Roulet or other Games wdth Cards or Dice, or himself playing at any of these Games, should be liable to the several penalties of 12 Geo. 2, c. 28 (e). The privilege of Parliament was taken away from persons against whom proceedings had been com- menced either for keeping a common Gaming house, or for playing at unlawful games '/*). And any person winning or losing by play or by betting the value of £10 at one time, or £20 within twenty-four hours, might be indicted and fined five times the value so won or lost(^). It appears that the circumstance of thirteen Royal Plates of one hundred guineas each being annually given to be run for, and the high prices which were constantly paid for Horses of strength and size, was considered a suf- ficient encouragement to breeders to raise their cattle to (x) 13 Geo. 2, c. 19, s. 3. {d) 13 Geo. 2, c. 19, s. 9, (y) Ibid. s. 4. Appendix. (z) Ibid. s. 7. (e) 18 Geo.2,c. 34, ss, 1, 2. (a) Ibid. s. 8. Appendix. (b) Ibid. s. 2. (/) Ibid. s. 7. (c) Ibid. s. 5. Ig) Ibid. s. 8. RACING, WAGERS AND GAMING. Reign of George the Fourth. the utmost possible size and strength ; and therefore some of the restrictions which had been thought favourable to the breed of Horses were removed, and it was made lawful for a person to run any Match, or to start and run for any Plate worth £50 or upwards, at any weights, and at any place, without being liable to the penalties of 13 Geo. 2, c. 19, relating to weights (h), and in the same manner as if that act had not been made. And it was held that this sum might be made up by two parties staking £25 a side {i). In the Reign of George the Third, a. d. 1774, it having been found by experience that making Insurances on lives or other events in which the Assured had no interest, had introduced a mischievous kind of Gambling, an act was passed "for regulating Insurances upon lives, and for prohibiting all such Insurances, except in cases where the persons insuring shall have an interest in the life or death of the person insured (^)." In the same Reign, a. d. 1787, an act was passed to render more effectual the laws then in being for suppressing unlawful Lotteries (Z ) ; but the government raised money by State Lotteries. In A. D. 180--? an act was passed to suppress certain Games or Lotteries called Littlegoes, under very heavy penal- ties (m). In this Reign there was no legislative inter- ference with reorard to Racing, but the breed of Horses contmued to improve. In a. d. 1809 an act was passed by which the duty payable on the exportation of a Horse, Mare or Gelding was fixed at two guineas each (w), and on the importation at four guineas each {o). But in ten years this act was repealed, and six pounds thirteen shillings was fixed as the duty payable on im- porting a Horse, Mare or Gelding, and they were not mentioned in the table of commodities paying duty on exportation {p). George the Fourth was a great patron of Horse racing, and was owner of some first-rate Horses. In this Reign, A. D. 1823, an Act was passed authorizing the infliction of imprisonment and hard labour on persons convicted of {h) 18 Geo. 2, c. 34, s. 11. {i) Bidmeadv. Gale, 4 Burr. 2432. (A-) 14 Geo. 3, c. 48. {I) 27 Geo. 3, c. 1, repealed by 46 Geo. 3, c. 148, s. 64. (m) 42 Geo. 3, c. 119. \n) 49 Geo. 3, c. 98, Sched. (A), Outwards. (o) Ibid., Inwards. Ip) 59 Geo. 3, c. 52, s. 1, and Table (B), Inwards. THEIR HISTORY, RISE AND PROGRESS. 277 keeping a common Gaming House (q) ; and people play- ing or betting on any Game of chance in the Street or Highway are to be deemed rogues and vagabonds, and be liable to imprisonment with hard labour for any term not exceeding three calendar months (?•). In the Reign of William the Fourth an Act was passed Reign of A.D. 1835, which is now in force. It is 5 & 6 Will. 4, wuiiam the c. 41, being " An Act to amend the Law relating to Securities given for considerations arising out of gaming, usurious, and certain other illegal transactions." It re- pealed so much of 16 Car. 2, c. 7, and 9 Anne, c. 14, as made void any Note, Bill or Mortgage given for any illegal consideration, or made such securities enure for the benefit of parties in remainder, and enacted that such securities should not be deemed void, but to have been given for an illegal consideration's). So that money, paid to the holder of any such security, shall be deemed and taken to have been paid on account of the person to whom the same was originally given on such illegal con- sideration, and to be deemed a debt due from the last named person to the person who has paid the money, and be recoverable accordingly in an action at law (t). In this Reign also an Act was passed to prevent the advertizing of any foreign or illegal Lotterj^ under a penalty of 501. (u). When Queen Victoria ascended the throne, the law of Reign of Racing, Wagers and Gaming was in a most unsatisfactory Queen Vic- condition ; but the Judges began to look more favourably upon Sporting transactions. Formerly, the tendency of the Courts was towards an extension of the prohibitory enactments, and a corresponding strict construction of any relaxations of them. But now the current of judicial opinion took another direction, and a different view of the subject prevailed. Racing and matters connected with it were no long^er reg^arded in Westminster Hall with an unfavourable eye, and it is, perhaps, hardly going too far to assert, that some transactions were sup- ported which former Judges would barely have allowed to be argued (x). Steeple chases were held to be legal( y), (q) 3 Geo. 4, c. 114. Gaming, post, Chap. 4. (r) 5 Geo. 4, c. 83, s. 4, (u) 6 & 7 Will. 4, c. 66. Appendix. (a;) 31 Law Mag. 72. (s) 5 & 6 Will. 4, c. 41, (y) Evans y. Pratt, 4: Scott, ss. 1, 3, Appendix. N. R. 378 ; S. C. 1 Dowl. (t) Ibid. s. 2, and see N. S. 505. RACING, WAGERS AND GAMING. as also Trotting matches along a road (z). We have at length, however, had the law on these subjects simplified and put upon a rational footing ; and for this change we are indebted to the common informers who brought qui tarn actions against certain influential individuals. In A.D. 1839, 3 & 4 Vict. c. 5 was passed, which re- pealed so much of 13 Geo. 2, c. 19, as relates to the subject of Horse Racing (a) ; and persons sued for penal- ties under that act might, on application to the Court, have an order granted for the discontinuance of the suit (b). At this period then the statutes in force with regard to Racing and Gaming were nearly the whole of 33 Hen. 8, c. 91, so much of 16 Car. 2, c. 7, and 9 Anne, c. 14, as had not been repealed and altered by 5 & 6 Will. 4, c. 41 ; 2 Geo. 2, c. 28, s. 9 ; 12 Geo. 2, c. 28 ; so much of 13 Geo. 2, c. 19, as does not relate to Racing ; 18 Geo. 2, c. 34 ; 5 & 6 Will. 4, c. 41 j and 3 & 4 Vict. c. 5. Such being the state of the law, the famous case of Applegarth v. Colley (c) came before the Court of Ex- chequer on special demurrer ; and after taking time to consider, an elaborate judgment was delivered by Mr. Baron Rolfe, in which it was held that at that time a Horse Race for money of any amount whatever given by third persons by way of Prize, was not illegal j that a Horse Race might be run for a sweepstakes of 2/. each, as there could not be any loser to the amount of lOZ. ; and therefore it Avas not within sect. 2 of 9 Anne, c. 14, and probably not within sect. -5 of the same statute ; and that though in balancing the earlier decisions there might be some doubt whether, under 9 Anne, c. 14, not only the securities given for a gaming debt, but the con- tract itself, was avoided, at all events this must be taken to be the case since 5 & 6 Will. 4, c. 41. Soon after this decision, numerous qui tarn actions were brought by common informers and others for penalties incurred under 16 Car. 2, c. 7, and 9 Anne, c. 14, by betting on Horse Races and running Coursing matches, &c. y and to stop these proceedings, 7 & 8 Vict. c. 3, was passed, which was afterwards extended by 7 & 8 Vict. c. 58. By these acts all proceedings were to be stayed, {z) Challand v. Bray, 1 (c) Applegarth v. Colley, 10 Dowl. N. S. 783. M. & W. 728 ; and see post, (a) 3 & 4 Vict. c. 5, s. 1. Chap. 4. {h) Ibid. s. 2. THEIR HISTORY, RISE AND PROGRESS. 279 on application to the Court, which had been commenced by common informers or persons other than the actual losers, for penalties incurred by playing at, or betting on, certain sports, pastimes and games, viz. Horse races. Foot races, Boat races, Regattas, Rowing matches, Sail- ing matches. Coursing matches, Fencing matches, Golf, Wrestling matches, Cricket, Tennis, Fives, Rackets, Bowls, Quoits, Curling, Putting Stone, Football or any bond jide variety, or any similar description of these sports, pastimes and games {d) ; no common informers, but only the actual loser or his representatives, were to commence any proceedings for penalties under 16 Car. 2, c. 7 ; 9 Anne, c. 14, or any other act, for playing at, or betting on, any of the sports or pastimes above enume- rated («). And if such proceedings were in the nature of an indictment, the consent in writing of her Majesty's Attorney-General must first have been obtained (/"). These acts were to continue in force until the end of that Session of Parliament. Before the expiration of that time, however, 8 & 9 Vict. c. 109, was passed, in- tituled " An Act to amend the Law concerning Games and Wagers," and received the Royal Assent on the 8th of August, 1845. It recites, that " The Laws heretofore made in restraint of unlawful Gaming having been found of no avail to prevent the mischief which may happen therefrom, and also apply to sundry Games of skill from which the like mischiefs cannot arise." It repeals so much of 33 Hen. 8, c. 9, whereby any Game of mere skiU is declared unlawful, or which enacts a penalty for play- ing at any such Game, or for lacking Bows or Arrows, or for not making and continuing Butts, or which regu- lates the making, selling or using of Bows and Aitows, and also so much of the act as requires the Mayors, She- riffs, Bailiffs, Constables and other head officers within every City, Borough and Town in the Realm, to make search weekly, or, at the furthest, once a month, in all Places where Houses, Alleys, Plays, Places of Dicing, Carding or Gaming shall be suspected to be had or kept, and also so much of the act as makes it lawful for every master to license his servant, and for every Nobleman or other person worth lOOZ. a year, to license his servants or family to play {g). It repeals the whole of 16 Car. 2, (c?) 7 & 8 Vict. c. 3, s. 1. (g) 8 & 9 Vict c. 109, s. 1, {e) Ibid. s. 3. Appendix. (/) Ibid. s. 4. RACING, WAGERS AND GAMING. c. 7, and so much of 9 Ann. c. 14, as was not altered by 6 & 6 Will. 4, c. 41, and also so much of 18 Geo. 2, c. 34, as relates to 9 Ann. c. 14, or as renders any person liable to be indicted and punished for winning or losing at play or by betting at any one time the sum or value of lOl., or within the space of twenty-four hours the sum or value of 201. (h). It makes a variety of regulations and enact- ments which will be considered, both with reference to the decisions which have been come to under the old law, and as showing the present state of the law of Racing and Gaming. And it may here be mentioned, that the Statutes now in force with reference to Racing and Gaming, are 33 Hen. 8, c. 9, sections 11, 12, 14, 16, 17, 18, 19, 20, 21 ; but only so far as they relate to unlawful Gaming ; 2 Geo. 2, c. 28, s. 9 ; 12 Geo. 2, c. 28 ; 13 Geo. 2, c. 19, sections 9 & 10 ; 18 Geo. 2, c. 34, sections 1, 2, 4, 5, 6, 7, 9 ; 5 & 6 Will. 4, c. 41, which incorpo- rates and alters 9 Ann. c. 14, s. 1, and given in the Ap- pendix, 8 & 9 Vict. c. 109, and 16 & 17 Vict. c. 119. By an Act passed in this Reign the duty on importing a Horse was reduced to 11.(1) ; and now Horses may be imported duty free [k). Acts were passed from time to time to indemnify persons connected with Art Unions from certain penalties (/) ; and at last an Act was passed under which they may be legalized by charter (m). The 6 & 7 Will. 4, c. 66, was also amended so as more effectu- ally to prevent the advertizing of foreign and other ille- gal Lotteries (n). After the passing of 8 & 9 Vict. c. 109, an attempt was made to set up Racing Lotteries and Sweeps, and it was suggested during the argument of the case of Gatty v. Field [o), that under the proviso of the 18th section of the above Statute, Derby Lotteries were no longer ille- gal. They were however held to be on the same footing as other Lotteries, and after that time were gradually superseded by Offices kept for the purpose of Betting. In these places Lists were exhibited and Odds given in sums (fe) 8 & 9 Vict. c. 109, s. & 9 Vict. c. 57. 15, Appendix. (m) 9 & 10 Vict c. 48, Ap- (i) 5%i6 Vict c. 47, Table pendix. (A), Class 1. (n) 8 & 9 Vict c. 74. {k) 9 & 10 Vict c. 23, (o) Gatty v. Field, 9 Q. B. Table (IV.) 431; ,5. C. 15 L. J.408 (Q. B.) (/) 7 & 8 Vict c. 109 ; 8 THEIR HISTORY, RISE AND PROGRESS. 281 high or low, to suit each customer. Every person was required to stake his money at the time, and leave it to abide the event of the Race. The natural consequence ensued ; persons entrusted with money, embezzled it, to make a venture, and clerks, servants and mere children were thus corrupted and ruined. To remedy these evils, 16 & 17 Vict. c. 119, was passed, being " An Act for the Suppression of Betting Houses,^' which received the Royal Assent on the "20th of August, 1853. It recites that '" a kind of Gaming has of late sprung up, tending to the injury and demoralization of improvident persons, by the opening of places called Betting Houses or Offices, and the receiving of money in advance by the owners or occupiers of such Houses or Offices, or by other persons acting on their behalf, on their promises to pay money on events of Horse Races and the like contingencies." It prohibits any such Bet- ting Houses being kept(jo), and makes them Gaming Houses within 8 & 9 Vict. c. 109 (q:. It forbids any person using a place for the purpose of betting with per- sons resorting there, or using a place for the purpose of receiving deposits on Bets(7'), and imposes penalties on persons connected with Betting Houses (s), or exhibiting placards or advertizing them ( t). This most stringent Act, containing various other provisions, will doubtless have the effect of putting down Betting Houses in those parts of Great Britain to which it extends. Scotland, however, from some cause or other, has been most unaccountably excepted from its provisions (m). (p) 16 & 17 Vict c. 119, (s) 16 & 17 Vict c. 119, s. 1, Appendix. ss. 3, 4, Appedix. (q) Ibid. s. 2. (0 Ibid. s. 7. (r) Ibid. ss. 1, 3. (m) Ibid. s. 20. RACING, WAGERS AND GAMING. CHAPTER II. STAKEHOLDERS AND STEWARDS. Stakeholders. The Law as to Racing . . 283 Sweepstakes id. Matches id. The Act for the Suppres- sion of Betting Houses . id. Entry for a Race id. Race not to he run within a Year 284 ** Scratching " a Race Horse id. Clerk of the Course usually Stakeholder 285 Ha^ no Right to the Stakes id. Cannot set-off an unpaid Stake id. Where he may cash a Cheque id. Stake must abide the Event of a legal Contract .... id. A Foot Race 286 A recent Decision id. Recovery of Money paid on an illegal Contract .... id. What the Party should do id. Demand before the Money is paid over id. Bringing an Action not sufficient 287 Where the Money is paid over without Dispute . . id. Where a Horse is disquali- fied id. Where Owner knows the Disqualification id. Proper Party to receive the Stakes 288 Winner may maintain an Action 288 Under what Circumstances id. A Cricket Match id. A Wrestling Match .... id. A Dog Fight id. Loser may recover his Stake where there has been Fraud id. How lie may waive his Claim 289 Where a Stakeholder may recover from the Winner id. Stewards. Their Duties id. Disputes to be settled by them 290 Award should be made by all id. Custody of the Stakes in the meantime id. Stewards' Decision main- tained by the Court of Exchequer 291 Appointment of a Judge. . id. Negligence in not appoint- ing one 292 Decision of the Umpire or Committee id. Terms of a Race 293 Rules of a Regatta id. Stewards, Sfc, cannot waive any Condition of a Race 294 Rules of the Jockey Club . id. Arbitration of the Jockey Club 295 STAKEHOLDERS. 283 Sporting Phraseology .... 295 A '' Selling" Race id. A professional Jockey .... 296 Horse regularly hunted with Hounds id. Match for a particular Meeting 296 Orderivg off the Grand Stand 297 Ordering Goods 298 STAKEHOLDERS. There are now no longer any restrictions with regard The law as to to Racing, and transactions of this description are go- ^^'^"^s- verned by the same laws as all other contracts. A Sweepstakes is a Stake or Fund for which at least Sweepstakes, three entrances must be made. There may be any num- ber of subscribers or contributors, and the whole Stake or Fund becomes, under certain regulations, the property of the winner (a). Many Races run with Horses are Matches, that is, Matches, where the Horse of one person runs against the Horse of another for certain Stakes to be awarded to the winner. It is quite clear that it was not the intention of 8 & 9 Vict. c. 109, to prohibit these, as they fall within the terms of the proviso of the 18th section of that Aci{h). The "Act for the Suppression of Betting Houses (c)" The Act for does not " extend to any person receiving or holding any *^^ ^^f^^t' money or valuable thing by way of Stakes or Deposit ting Houses, to be paid to the winner of any Race, or lawful Sport, Game or Exercise, or'' to be paid " to the Owner of any Horse engaged in any Race," as, for instance, to the second Horse. The 18th section of 8 & 9 Vict. c. 109, which makes Entry for a void all contracts or agreements by way of Gaming or ^^^®' Wagering, and prohibits the winner in such transactions from recovering either at law or equity, does not " apply to any subscription or contribution, or agreement to sub- scribe or contribute for or towards any Plate, Prize or Sum of Money to be awarded to the winner or winners of any lawful Game, Sport, Pastime or Exercise," and the entry for a Race which is to be run within a year of the time of such entry may be effected in the usual man- (a) Batty v. Marriott, 5 C. (c) 16 & 17 Vict. c. 119, B. 831. s. 6, Appendix ; and see (6) Batty v. Marriott, 5 C. Wagers, post, Chap. 5 ; Bet- B. 828. ting Houses, post, Chap. 6. 284 RACING, WAGERS AXD GAMING. ner. And though there are two Subscribers only, it is not less a contribution to a sum to be awarded to the winner of a lawful Game, if the agreement be, that the whole sum subscribed shall be paid over to the winnerCJ). Race not to Many of the great Races are not run within a year aVear^^*^^'^ ^^"^°^ ^^^ ^^^^ ^^^^ Horses are entered, and therefore to attach a liability to a loser who has not paid his entrance, it would appear necessary under 29 Car. 2, c. 3, s. 4, that some memorandum or note in writino- of the agreement to pay the entrance money, signed by the party to be charged, or by some other person lawfully authorized by him to do so, should be given to the Stakeholder at the time of entry (e). However, this need not cause any trouble, as it may be effected by letter (f). "Scratch- The owner of a Horse entered for a Race can with- ^g" a Race draw, or, as it is termed, "scratch" him before the Race is run. A curious application was made to Yice-Chan- cellor Knight Bruce on this point. The Racing Stud of the late William Charles Earl of Albemarle, including a valuable Racehorse and the stallion " Emperor," was bequeathed to his wife Charlotte Susannah Countess of Albemarle. The executor filed a Bill, alleging, among other things, that the personal estate of the late Earl was insufficient to pay his debts, and considering that the two Horses in question and the Racing Stud, unless sold im- mediately, would be greatly depreciated in value, and that the Countess was unwilling they should be sold, it was prayed that a sufficient part of them might be sold, and that the Countess might be resti'ained fi-om with- drawing or erasing the above-mentioned Racehorse from the Book in which his name was entered for the Derby or St. Leger Stakes, or any other Race. The Countess also filed a Bill in the Court of the Vice- Chancellor of England, stating that the personal estate was sufiicient, and praying the executor might be re- strained from selling or removing the Racehorse, or the stallion "Emperor," or the Racing Stud of the late Earl. The executor by his petition prayed the direction of Vice-Chancellor Knight Bruce's Court as to the manner (d) Per Cresswell, J., BcUty M. 536. V. Marriott, 5 C. B. 832. {/) See Requisites of the (e) See BentiTick v. Connop, Statute of Frauds, ante, Part 5 Q. B. 693; S. C. 1 Dav. & 1, Chap. 1. STAKEHOLDERS. 285 in which these two Horses and the Stud should be dealt with, and that the Dowager Countess might be ordered to concur in any sale which the Court might direct, and for the injunction as to erasing the name of the Race- horse from the Race Book, or otherwise depreciating his value. An an'angement was eventually made between the parties, and in the meantime an undertaking was given on behalf of the Countess, that no step should be taken to " scratch " or withdraw the Racehorse from the BookC^r). The Clerk of the Course is usually the Stakeholder at cierk of the Races, and he is bound to retain the Stake till some party Course be clearly entitled to receive it ; and if he pays it to a stakeholder, party not entitled to it, he is still liable to pay it to the party who has a proper title to it, and until all disputes are settled he is the proper person to keep it {h). But he has no rigJit to the Stakes till he gets the Hasnori^ht money into his hands; he is never more than a mere *^°*^^^*^^^*- Stakeholder. Indeed, if he could bring actions for un- paid Stakes, he would be liable to have actions brought against him for every Stake that was won, whether he had received it or not 5 and his situation would not be a very enviable one(i). He cannot set off a claim of an unpaid Stake due from Cannot set a person on one Race against a Stake won by the same g^^° unpaid person in another Race {k). If he cashes a Cheque deposited with him, he is not Where he guilty of a breach of duty, if the parties agreed to treat ^^^ ^^^^ * the Cheque as money (Z). When the enti-ance money has been paid or agreed to stake must be paid to the Stakeholder, it must, according to the ^^}^^ ^^^ general principle of all contracts, abide the result of the legai Con- Race, which being a legal contract, it cannot be reco- tract, vered by the party who has made the entry, unless there be a mutual agreement for the rescision of the contract, which is called being " off by consent.^' On this point an opinion was expressed by Mr. Baron Parke where an {g) Keppelv. Countess Dow- {i) Per Patteson, J., Charl- ager of Albemarle, before ton v. Hill, 5 C. & P. 147. Vice - Chancellor Knight {k) Charlton v. Hill, 5 C. & Bruce, Feb. 18, 1850. P. 147. (h) Burroughs. Skinner, 5 (/) TVilkinsonv. Godefroy,9 Burr. 2639 ; Marryat v. Bra- A. & E. 5ZQ. derick, 2 M. & W. 369. 286 BACING, WAGEKS AND GAMING. A Foot Race. A recent de- cision. Recovery of money paid on an illegal Contract. "What the party should do. Demand be- fore the money is paid over. action bad been brougbt by a party to recover back his own entrance money, after a Race had been run, for which his Horse had not started. It was held he could not recover it, because he had given no Notice before the Race ; and his Lordship said, ' ' Even if the plaintiff had given Notice in due time that he should require his Stake to be returned, this being a legal Horse Race, I have great doubts that it would be recoverable, the agreement being that it should be deposited to abide the event, which agreement cannot, as it seems to me, be vai'ied without the assent of all parties. But here there was no demand made; no rescision of the contract before the Race(7?z).'' And where before 8 & 9 Vict. c. 109, the sum of ten shillings was deposited with a Stakeholder to abide the event of a Foot Race, Mr. Baron Parke said, " The transaction is valid and the contract binding ; and there- fore one of the parties cannot determine it by a simple countermand, without the consent of all the other parties depositing (w)." So after the passing of 8 & 9 Vict. c. 109, where two persons agreed to run a Foot Race, and each of them deposited 10^. with a third person, the whole 201. to be paid by him to the winner of the Race ; it was held by the Court of Common Pleas that the loser could not re- cover back his deposit from the Stakeholder (o). If two parties enter into an illegal or void contract, and money is paid upon it by one to the other, or to a Stakeholder, it may be recovered back before the execu- tion of the contract, but not afterwards (p). A person who has staked his money on an illegal or void transaction, and wishes to recover it, should do some act to put an end to the affair. And he should demand back his deposit, because if he does not, he permits the Stakeholder to dispose ofit[q). Where the event in such case has been decided, but before the money has been paid over, and one party ex- presses his dissent from the payment, he may recover it (m) Marryat v. Broderick, 2 M. & W. 369. (n) Emery v. Richards, 14 M. & W. 729. (o) Batty v. Marriott, 5 C. B. 848. (p) Hastelow v. Jackson, 8 B. & C. 226 ; and see Mear- ing V. Hellings, 14 M. & W. 712 ; Varney v. Hickman, 5 C. B. 281. (q) See Gatty v. Field, 9 Q. B. 440. STAKEHOLDERS. 287 from the Stakeholder. For although the event has hap- pened, yet the contract is not completely executed until the money has been paid over, and therefore the party may retract at any time before that has been done (r). If it be pleaded, to an action for Money had and re- Bringing an ceived, that the money was staked on an illegal Game, g^^" "*J* the plaintiff must show in answer that he demanded back the Stake before it was paid over, the mere bringing an action before payment over not being a sufficient de- mand {s). But although the contract be illegal or void, yet if the Where the event happens, and the money is paid over by the Stake- ™i^%^* holder without dispute, there is a complete execution of without dis- the contract, and the money cannot be reclaimed (^). P^te. If a person pays his entrance money to the Clerk of Where a the Course bond fide and without any attempt to impose Qualified ^"' upon the other subscribers, and then finds his Horse dis- qualified, he may recover his Stake (m). But the Owner cannot recover his own Stake after the WhereOwner Race, if before the Race he knew that his Horse was dis- ^""^^i^^® qualified. Thus where the conditions of a Race were that tion. the Horses were not to be thorough-bred, nor to have started against thorough-bred Horses, nor to have run for a Plate, the plaintiff started his Mare Funny, and she came in first, but the Clerk of the Course refused to pay the Stakes, as it appeared that under the name of Flashy Moll she had started against thorough-bred Horses, run for Plates, and had won many Races. Upon this the plaintiff brought an action to recover back his own entrance money. However, Mr. Baron Vaughan said to the Jury, " It will be for you to say whether the plaintiff has been guilty of an attempt to impose upon the other subscribers to the Race by a misrepresentation of his Mare ; for if so, he will not be entitled to recover back any share of the Stake. If the plaintiff kneiv of the disqualification of his Mare, the law will not assist him in the recovery of the deposit." A verdict was found for the defendant (m). (r) Hastelow v. Jackson, 8 B. & C. 226 ; and see Moore B. & C. 227 ; and see Mear- v. Cooper, before Mr. R. Gux-- ing V. Hellings, 14 M. & W. ney, Sheriffs' Court, Dec. 10, 712. 1853. (s) Gatty v. Field, 9 Q. B. (m) Weller v. Deakins, 2 C. 431. & P. 618. {t) Hastelow v. Jackson, 8 W' 288 RACING, WAGERS AND GAMING. Proper party to receive the Stakes. Winner may maintain an action. Under what circum- stances. A Cricket Match. A Wrestling Match. A Dog fight. Loser may recover his Stake where there has been Fraud. A Stakeholder should pay the Stakes to the winner or his agent. For where the holder of a Ticket in a Derby Lottery sold it to the Plaintift' before the Race, and the Horse named in it was ultimately declared the winner, it was held that, even supposing the Lottery were legal, the plaintiff could not sue the Stakeholder, in an action for Money had and received, for the amount to which the holder was by the conditions of the Lottery entitled. Because a Ticket of this sort could not be ne- gotiable like a Promissory note, and parties could not, by agreement among themselves simply, make a transfer of such a Ticket, so as to give the assignee a right of action {x). But the actual Winner may maintain an action against a Stakeholder for all monies actually in his hands, and against the party who has agreed to subscribe or con- tribute to the Stakes, where it has not been paid up, and this however great the amount may be ; because the 18th section of 8 & 9 Vict. c. 109, applies only to transactions in the nature of Gaming or Wagers. An action might probably be maintained for the Stakes or Prize by the winner in every lawful Sport, Pastime, or Exercise, which a Judge in his discretion might not think too frivolous to try. And he would probably allow an action to be tried, should its subject-matter be a claim by the winner of Stakes in any of the sports mentioned in 7 & 8 Vict. c. 3 (?/). Where five shillings a head had been staked by the eleven players on each side in a Cricket Match, an action was tried, and the winners recovered the Stake from the Stakeholder {z). But Lord Tenterden refused to tiy an action to recover back a deposit on a Wrestling Match (a). So also Abbott, C. J., refused to try an action brought against the Stakeholder on a Dogfight, and said, "The time of the Court is not to be wasted in trying which Dog or which Man won a battle" {b). Where fraud has been practised the loser of a Race may recover his Stake from the Stakeholder, and produce the agreement without a Stamp. In the following case (.r) Jones v. Carter, 15 L. J. 96 (Q. B.) {y) See Gaming, post, Chap. 4. {z) Walpole V. Saunders, 7 D. & R. 130. (rt) Kennedy v. Gad, 3 C. & P. 376. {b) Egerton v. Furzeman, 1 C. & P. 613. STAKEHOLDERS, 289 the plaintiff entered into a written agreement with a third party to race their Horses upon certain terms, and he deposited the amount of his Stake with the defendant. The Race was run and the plaintiff's Horse was beaten ; but he afterwards discovered that the whole transaction was a concocted fraud. After Notice had been given not to pay over the amount, an action was brought to re- cover the Stakes, and it was held by the Court of Ex- chequer, that the written instrument, although un- stamped, was properly admitted in evidence in proof of the fraud (c). But if a person once affirms the contract by claiming How he may the Stake, he cannot afterwards turn round and claim a ^^■^y^ ^^^ return of his money on the ground of the agreement being void by reason of fraud (d). Where, however, the Stakes have been paid over to a Where a fi-audulent winner, they may even then be recovered from stakeholder him in an action by the Stakeholder. Thus a Bitch from the called Emily Deans was entered for the " Great Open Winner, Puppy Stakes" in Northumberland. The Stakes were run for and a Bitch described as Emiljr Deans won them, and the money was paid over by the Secretary to the defendant. It was subsequently ascertained that the Bitch which had run was not Emily Deans, but one called Miami. An action was brought bj'^ the Secretary, who was also Stakeholder, to recover the Stakes from the defendant. It was submitted by the counsel for the defendant that the plaintiff" was not the proper person to bring the action, and also that Miami being in every way qualified in point of age to run for the Stakes, there was no fraud committed. But Mr. Baron Martin was of opinion that Emih' Deans being the animal entered for the match, the defendant had no more right to sub- stitute another Dog in her place, than a person entering a Hunter for a Sweepstakes, had to run a Racehorse instead. A verdict was found for the plaintiff, and a rule for a new trial refused by the Court (e). STEWARDS. The Stewards are generally the proper parties to decide Their duties. all disputes in a Race, and all matters which, according (c) Holmes v. Sixsmith, 7 808. Exch. 802. (e) Emerson v. Dickson, be- {d) See per Pollock, C. B., fore Mr. Baron Martin, Dur- Holmes v. Sixsmith, 7 Exch. ham Spr. Ass. March 4, 1853. o 290 KACING, WAGERS AND GAMING. to the conditions of the Race, are to be referred to them. They should hear both sides and all join in making their award ; or if one make an award for all, the disputing parties, and probably also the Clerk of the Course or Stakeholder, should expressly submit themselves to his authority. If the Stewards are unable or incompetent to determine it, the case must go to a Jury, and the Stakes in the meantime must remain in the hands of the Clerk of the Course where he is the Stakeholder. The law as to the decision of Stewards is fully laid down in the fol- io vx ing late cases. Disputes to There was a Sweepstakes at Newport Pagnel Races them"'^*^ ^^ ^^^ Horses not thorough-bred. Before the Race was run, the plaintiff, who was owner of a Horse afterwards second in the Race, gave Notice to the defendant, who was Clerk of the Course, that a Horse belonging to one Shaw, which afterwards came in first for the Race, was thorough-bred, and therefore disqualified to start. The Rule of the Races was, that all disputes were to be settled by the Stewards A. and B., whose decision was to be final ; and B. had agreed to acquiesce in whatever A. did as Steward. Neither of the Stewards were pre- sent, and on A. being refeiTcd to, he submitted the ques- tion to the Jockey Club, who refused to entertain it, on the ground that it was a mere question of fact, and re- feiTed it back to the decision of the Stewards. A. after- wards wrote a letter to the plaintiff, saying he considered him entitled to the Stakes; but no proof was given that the first Horse was thorough-bred. It was decided that the letter was no authority, but that there ought to have been an express award by both Stewards; or to make an award by A. binding, there ought to be clear proof that both the disputing parties, and probably also the Clerk of the Course, submitted to his authority. And Mr. Baron Parke said, — " The Stakes, therefore, remain in the defendant's Stakes in the hands until it be determined by due course of law who is meantime, -pinner; that is, by the Stewards, if they are competent to determine it, if not, by a Jury. The plaintiff may now submit the case to the Stewards if they are com- petent to entertain it; if not, he may bring an action and show himself the winner, by showing that Shaw's Horse was thorough-bred and that his own was not{f)." Award should be made by all Custody of (/) Marryat v. Broderich, 2 M. & W. 369. STEWARDS. 291 And where the printed conditions of a Steeple Chase steward's de- in 1843 contained the following (amongst other) stipula- cisionmain- tions : " No Groom or Professional Jockey will be al- ^^^^ o/ex-* lowed to ride,'' and "all disputes and other matters shall chequer, be decided by the Steward, whose decision shall be final, and who shall have the power of appointing an umpire :" the plaintiff, who had a Horse to run, which he intended should be ridden by one Walker, was informed by order of the Steward, before the day of the Race, that the Steward considered Walker as a Professional Jockey, and that the Horse, if ridden by him, would be no Horse in the Race. On the day of the Race, Walker appeared in the field, mounted and prepared to ride the plaintiflT's Horse, when the Steward intimated to the plaintiff and others near him that his Horse would be no Horse in the Race, as Walker had been forbidden to ride. Notwith- standing this intimation. Walker rode the Plaintiff''s Horse, and came in first. On the following day the Steward pronounced the second Horse to be the winner and entitled to the Stakes. The plaintiff then brought an action against the defendant, who was Secretary to the Race Committee, and holder of the Stakes. A ver- dict was found for the plaintiff, reserving leave to the defendant to enter a nonsuit. The Court of Exche- quer made the rule absolute to enter a nonsuit, and Ciiief Baron Pollock said, '' The question is, whether the Steward has decided this point, and whether his de- cision is good in point of law. I am of opinion that he has come to a decision, and that that decision is suffi- cient." And Mr. Baron Alderson said, " It would be strange, if in a case like this a formal and solemn decision was necessary ; if, for instance, it were requisite that a point should be regularly raised before the Stew-ard, that witnesses should be examined upon oath, and the same strictness required as in arbitrations under the sanction of a Court of justice {g)." The Stewards of a Race are the proper parties to Appointment appoint the Judge, who may decide w'hich is the winning of a Judge. Horse ; and if they are paid for their trouble, or enter upon their duties, they are liable to an action for not doing so {h). {g) Benhow V. Jones, 14 M. in Smith's Merc. Law, 112, & W. 193; S. a 11 L. J. and cited by Jervis, C. J., 257 (Exch.) Balfe v. West, 22 L. J. 176 (/») See the principle stated (C. P.) 02 292 Negligence in not ap- pointing one. Decision of the Umpire or Com- mittee. RACING, WAGERS AND GAMING. But a person gratuitously undertaking the duties of Steward of a Horse Race, is not liable for negligent non-feasance in not appointing a Judge, unless it appears that he commenced to perform the duties of the office (i). Where by the conditions of a Race the decision of the Umpire or Committee is to be final, the parties are bound by it in the same way as in the case of Stewards. Thus where a Match was made between two Mares under the following agreement : — " Pratt and Evans. '^Thomas Holj'^oake, Esq., Umpire. " Frederick Pratt bets Thomas Evans 100?. to 25?. p.p. [play or pay^, Mr. Ry ley's brown Mare [late his pro- perty] beats Thomas Evans's Mare, Matilda, four miles across a country, thirteen stone each. To come off 1st March, 1841. The Umpire's decision to be final. (Signed) " Thomas Evans, " Frederick Pratt." The Match came off on the day appointed. Mr. Ry ley's brown Mare came in first; but Mr. Holyoake, the Um- pu*e, decided that the other Mare was the whinner, in consequence of the former having passed through a gate- way instead of going over the hedge, which the rules of Steeple chasing seem to require. It was held that it was not competent to either party to dispute the decision of the Umpire, as they had constituted him Judge of the law and the fact {k). Also where a Race was run, subject to certain con- ditions, one of which was, that the riders should be ''gen- tlemen, farmers or tradesmen, being persons never having ridden as regular Jockeys or paid Hiders.'' Another, that the decision of the Committee on any dispute that might arise should be final. At the trial it appeared that the rider of the plaintiff''s Horse, which came first to the winning chair, had been in the habit of riding at Races, sometimes receiving his expenses, but never hav- ing been paid for his services, and that the plaintiff's right to the Stakes was disputed on the ground of an alleged cross. Immediately after the Race, the Jockey was required to attend before the Committee, but omitted {i) Balfe v. West, 22 L. J. 175 (C. P.); s. a 1 C. L. Rep. 225 (C. P.) (k) Evans v. Pratt, 4 Scott, N. R. 378. STEAVARDS. 293 to do so. The Committee therefore entered upon the inquiry, and ultimately came to the resolution, that un- less the Plaintiff would produce evidence before them on the following morning to induce them to alter their minds, their decision was that the second Horse was the winner. This was communicated to the Plaintiff, but no evidence was offered, and nothing more was done. Mr. Justice Coleridge told the Jury, that they must consider first, whether the Committee had, before the commencement of the action, decided the dispute ; se- condly, whether or not the Jockey was a rider qualified within the language of the issue ; thirdly, whether he unfairly crossed. And he further told them, that if the Committee had decided the matter, their decision would be conclusive, but that it must have been come to before action brought, as to which the e\adence was not satis- factory ; and, in his opinion, the Jockey's disqualification had not been established. The Jury returned a verdict for the Plaintiff, and the Court of Common Pleas dis- charged a rule for a new trial (/). All the parties whose Horses are entered must of Terms of a course adhere to the terms of the Race, such as the ^^^^• weights, payment of entrance money, &c., because no single condition can be waived without the unanimous consent of the subscribers (m). According to the Rules by which a Regatta was regu- Rules of a lated, and which had been signed by all the parties ^e&^tta. taking part in the Race, the Prize, which was a Boat, was not to be delivered up, unless it was fairly won to the satisfaction of the Managers. In consequence of some Fouling the Managers were dissatisfied, and called upon both parties to stop the Race. One of the parties, however, continued to row on alone, until he reached the Goal ; and then, assisted by his friends, he took possession of the Prize Boat, and deposited it in the defendant's yard. An action of Trover was brought against the defendant by the Managers to recover the Boat, and Lord Denman being of opinion that the evidence of con- version on the part of the defendant was very strong, the Jury found a verdict for the plaintiff (w). {I) Walmesly v. Mattheivs, v. Umbers, 2 C. M. & R. 116- 3 Scott, N. R. 584. (?«) Cheeseman v. Hart, be- {m) Weller v. Deakins, 2 fore Lord Denman, C. J., C. & P. 618 ; and see Lacey Guildhall, Dec. 23, 1847. 294 RACING, WAGERS AND GAMING. Stewards, &c. Neither the Stewards, Clerk of the Course, nor any any"condition ®*^^^ persons, can waive or vary the published conditions of a Race. of any Race without the consent of all the subscribers. Thus where an action for Money had and received was brought against the defendant, who was Clerk of the Course at the Mostyn-hunt Races, for the amount of Stakes held by him as the Stakeholder on a Race won by a Mare of the Plaintiff's called Funny : the follow- ing was the printed advertisement of the Race:— "A Sweepstakes of ten guineas each, five forfeit, for Horses not thorough-bred that have never started against a thorough-bred one or run for a Plate ; that have been regularly hunted with Sir Thomas Mostyn's, the Duke of Beaufort's or the Duke of Grafton's hounds, up to the day of naming, and are bond fide the property of the subscribers, &c. One guinea entrance. Horses to be named by Mr. E. Deakins on or before the 22nd of March." The plaintiff paid his share of the Stake, and his Mare came in first ; but it appeared that the Mare had been only once hunted with the hounds of Sir Thomas Mostyn. A witness proved that about half- an-hour before the Race was run, the plaintiff said to the defendant, that he hoped he was satisfied about the Mare's hunting, and that the defendant replied, " Quite so: you run your Mare, we have arranged that." But Mr. Baron Vaughan said, ''It must be shown that the Clerk of the Course had authority from the subscribers to waive the conditions of the Race. It is not enough for the Clerk of the Course to say, half-an-hour before the running, that he would waive a particular condition. I take it that there was a printed proposal to run Horses on certain terms ; what the Clerk said after this was published cannot have the effect of waiving any of those terras without all the other subscribers are proved to have consented to it (o). Rules of the On those Courses which are governed by the Rules of Jockey Club, the Jockey Club {p) the Stakeholders, Stewards, and all persons concerned in the Races, must regulate their pro- ceedings accordingly, unless there be a waiver of any of these Rules by mutual consent. But the Jockey Club will not entertain any mere matter of fact submitted to (o) Welter v. Deakins, 2 C. Jockey Club, see Racing Ca- & P. 618. lendar for 1853. (p) For the Rules of the STEWARDS. 295 them, but will send it back for the decision of the Stewards [q) ; and the Courts will receive the Rules of the Jockey Club as evidence with respect to the laws of Racing (r). A submission to the Arbitration of the Jockey Club, Arbitration of a disputed account, amounts to an agreement which of the Jockey cannot be impeached under the Acts against Gaming, if any part of the accounts between the parties is legal. Thus the plaintiff in 1833 gave a post obit security on his expectancy in a certain Fund, payable on the death of his Father to W., in consideration of certain Gaming debts. He subsequently won a larger sum of W. by Bets on Horse Races, and both parties having submitted to the arbitra- tion of the Jockey Club in 1837, the Steward decided that one debt should be set off against the other, and the security given up. And on the plaintiff filing his Bill to have the Security delivered up to be cancelled, the Master of the Rolls received in evidence the entry of the transac- tion in the Books of the Jockey Club, and also the testimony of Mr. Greville the Steward {s). The Coui-ts will not take judicial notice of sporting Sporting phraseology, but they will admit evidence to explain it. phraseology. Thus where a match was made between two Mares " across a country,^' it was held that although the Court could not take judicial notice of such phrase, yet evidence was admissible to show that in Sporting phraseology it means over all obstructions, and prohibits the rider from availing himself of an open gate {t). And in another case evidence was admitted to show that the letters " P. P." signified that the parties were bound either to run the match or forfeit the Stakes (m). So also where the Race was what is termed a " Selling" ^ " Selling" Race, evidence was admitted to explain that it meant a ^°^' Race for which Horses were entered upon the terms that the Horse which won the Race was to be sold by Auction to the highest bidder, but the owner was only to receive the price put upon the Horse when it was entered, the balance going to the Racing Fund. That Horses thus entered were weighted according to the amount put upon (q) Marryat v. Broderick, (s) Hawker v. Wood,Weekly 2M. &W. 369. Reporter, 316 (M. R.) (r) Greville v. Chapman, 5 (t) Evans v. Pratt, 4 Scott, Q. B. 745 ; and see the Rules N. R. 378. of Racing and Betting, Ap- (m) Daintree v. Hutchinson, pendix. 10 M. & W. 89. 296 RACING, WAGERS AND GAMING. them, those of the highest price carrying the greatest weight (or). A profes- Where by the terms of a Race the riders were to be sionaiJockey. persons who had never ridden as Regular Jockeys or Paid aiders, it was held by Chief Justice Tindal in the Court of Common Pleas that a Regular Jockey or Paid Rider is a person who follows the business of a Jockey or Rider as a means of gaining a livelihood. But that a person who had sometimes received his expenses, but had never been paid for his services, Avas clearly not disquali- fied iy). Horse regu- Where by the terms of a Race the Horses must have lariy hunted j^ggj^ regularly hunted with some particular Hounds, it is wit oun s. ^^^ necessary to qualify a Horse to run that he should have been hunted every day the Hounds went out. It is sufficient to show that tlie Horse has been hunted frequently, but one day's hunting is decidedly not enough (2). Match for a Where a Match is made for a particular Meeting Meetin^^^ which depends upon weather or other circumstances, of course the Match must be run when such Meeting actu- ally takes place. Thus where an agreement in writing was made between the plaintiif and the defendant to run a Match with Greyhounds "on the Wednesday during the Newmarket Meeting, 1841, P. P." It appeai-ed that the Newmarket Meetings were Meetings of a Cours- ing Club; that the power of appointing and adjourning them was vested in the Stewards, who were governed by printed Rules; and that the practice of the Club was to hold the February Meetings on the first or second Tues- day in that month weather permitting', and if at the Meeting the ground proved unfit for Coursing, their practice was to adjourn to a given day, or the first open day. At the time when the contract in question was made, the day appointed for the February Meeting was Tuesday the 2nd of February, 1841. On Wednesday the 3rd, the plaintifi" and defendant were there, but frost prevented the Meeting from being then held, and it was adjourned to Tuesday the 9th, weather 'permitting. The frost, however, continued beyond that day, and the Meeting was ultimately held on Tuesday the 16th. On {x) See Hadland v. Price, 3 Scott, N. R. 584. Appendix. (2) Weller v. Deakins, 2 C. (y) Walmesly v. Matthews, & P. 618. STEWARDS. 297 Wednesday the 17th the plaintiff came with his Dog ready to run the Match, but the defendant did not ap- pear. It was heldj^rs^, that the construction of the conti-act was, that the Match should be run on the Wednesday during the February Meeting, whenever it should be actually held, and that the plaintiff performed his part of the contract by being ready to run on Wednesday the 17th ; secondly, that the plaintiff was not bound to pro- duce the printed Rules, but that it was enough for him to show that the February Meeting was then actually held ; and also that evidence was admissible to show what the parties intended by the letters " P. P-^' sub- joined to the agreement (a). The Steward of a Race-course can order any person Ordering off off the Grand Stand or Inclosure, thous^h he has paid for ^^^ Grand • Stand his Ticket ; but in such case the Steward or his Agent had better tender the price of the Ticket to the party at the time of gi\'ing him Notice to quit the Stand or In- closure to which the Ticket had given him admittance. But the person who had sold him it should return the money, for otherwise the holder of it would probably have a right of action against the person from whom he had purchased it, or against those who had authorized its being issued and sold ; such action however w^ould be founded on a breach of contract, and not on his having acquired by the Ticket any right to go on the Stand or Inclosure in spite of the owner of the soil. The authority of the Steward was confirmed in the following case, where the question was fully discussed before the Court of Exchequer. In 1843, Lord Eglinton being Steward of Doncaster Races, Tickets were sold in Doncaster at one guinea each, which were understood to entitle the holders to ad- mission into the Grand Stand and its Inclosure, and to remain there during the Races. They were issued with Lord Eglinton's privity, but they were not sealed nor signed by him. It appeared that the plaintiff. Wood, having purchased one of these Tickets, came to the Stand during the Races of the year 1843, and was there or in the Inclosure while the Races were going on ; and while there, and during the Races, the defendant, by the order of Lord Eglinton, desired him to depart, and gave him (a) Daintree v. Hutchinson, 16 M. & W. 87, 89. O 5 RACING, WAGERS AND GAMING. Notice that if he did not go away force would be used to turn him out. The plaintiff had in no respect miscon- ducted himself; and it was admitted that if he had not been required to depart, his coming upon and remaining in the Inclosure would have been an act justified by his purchase of the Ticket. The plaintiff refused to go, and thereupon the defendant, by order of Lord Eglinton, forced him out, using no unnecesary violence. It was held, that even assuming the Ticket to have been sold to the plaintiff under the sanction of Lord Eglinton, still it was lawful for Lord Eglinton, without returning the guinea, and without assigning any reason for what he did, to order the plaintiff to quit the Inclosure ; and that if the Jury were satisfied that Notice was given to the plaintiff requiring him to quit the ground, and that before he was forcibly removed by the defendant a reasonable time had elapsed, during which he might conveniently have gone away, then the plaintiff was not, at the time of the removal, on the place in question by the leave and licence of Lord Eglinton. On this direction a verdict was found for the defend- ant, and a rule nisi having afterwards been obtained by the plaintiff to have this verdict set aside on the ground of misdirection, the Court of Exchequer, after hearing both sides and taking time to consider, in an elaborate judgment delivered by Mr. Baron Alderson, discharged the rule(Z>). In ordering goods or work for the purpose of Races, the Stewards should expressly inform the parties who it is that intends to be answerable for the payment, other- wise they will be personally liable. In the case of Storr and another v. Scott, Bart.{c), it appeared that the de- fendant, being one of the Stewards of Lichfield Races, at the request of the Clerk of the Course chose a Gold Cup at Storr and Mortimer's, who brought an action against him for the price ; it being, however, shown that they had given credit for it to the Clerk of the Course, and had accordingly sent him an invoice, a verdict was found for the defendant. (6) Wood V. Leadbitter, 13 (c) Storr and another v. M. & W. 838. Scott, Bart., 6 C. & P. 24L ( 299 ) CHAPTER III. WAGERS. Wagers at Common Law . 299 Wager on the Life of Na- poleon 300 Wager on the Result of an Election id. Betting on a Race id. Bets not recoverable .... id. Deposit recoverable before the Event id. Decision of the Court of Common Pleas 301 The Act for the Suppres- sion of Betting Houses 302 The Stock-Jobbing Act . . id. Does not affect Time Bar- gains in Foreign Funds id. Nor in Shares 303 Where each Party means to break the Contract. . id. As in a Time Bargain . . id. Gaming within 8^9 Vict. C.109 id. Question to be left to the Jury id. Statute against Wagering Policies 303 What held to be such a Policy 304 Wager as to a Declaration of War id. What was held not to be such a Policy id. Paying a Bet id. Giving a Security id. Where a Note or Bill is a Gift id. Taking a stolen Bank Note in Payment 305 What invalidatestheHold- er^s Right id. Mala fides must be dis- tinctly proved id. Money borrowed to pay Bets 306 A Betting Agent id. A Betting Partner id. Cheating in a Wager .... id. WAGERS. All Wagers which were not against the principles of Wagers at morality, public decency or sound policy, were held good coni™oo la^r, at common law ; and a Wager or Bet was defined to be a contract entered into without colour or fraud, between two or more persons, for a good consideration, and upon mutual promises to pay a stipulated sum of money, or to deliver some other thing to each other, according as some prefixed and equally uncertain contingency should hap- pen within the terms upon which the contract was made {a). (a) Jones v. Randall, Cowp. 39 ; 2 Hawk. c. 92. 300 RACING, WAGERS AND GAMING. AVager on the life of Napo- leon. Wager on the result of an election. Betting on a Race no longer illegal. Bets not re- coverable. Deposit re- coverable before the event. A Wager by which A. received from B. one hundred guineas on the 31st of May, 1802, in consideration of paying him a guinea a day so long as Napoleon Bona- parte (then First Consul of the French Republic) should live, was held to be void on the grounds of immorality and impolicy. This Bet arose out of a conversation upon the probability of his coming to a violent death by assassination or otherwise (b). So also a Wager made, before the poll began, between two voters with respect to the event of an election of a member' to serve in Parliament, was held to be void, as such contract is corrupt in the eye of the law and against the fundamental principles of the constitution (c). Until the late Act of Victoria (d), Wagers above a certain amount w^ere declared to be illegal by Statute ; now, however, the illegality no longer exists, and there- fore Betting on a Race may now be practised to any extent without any penalty being incurred (e). But by the above-mentioned Act (f) it is provided, that "all contracts or agreements, whether by parol or in writing, by way of Gaming or Wagering, shall be null and void ; and no suit shall be brought or main- tained in any Court of Law or Equity for recovering any sum of money or valuable thing alleged to be won upon any Wager, or which shall have been deposited in the hands of any person to abide the event on which any Wager shall have been made ;" but this enactment is not *'to apply to any subscription or contribution, or agree- ment to subscribe or contribute, for or toward any Plate, Prize or sum of Money, to be awarded to the winner or winners of any lawful Game, Sport, Pastime, or Exer- cise(/)." However, a party depositing a sum of money with a Stakeholder, by way of Wager and not as a Stake (g), may recover his money back, if he give Notice to the Stakeholder, before the event comes off, that he shall break off the Bet, and require him to return his money. In a case tried before Chief Justice Wilde at Nisi Prius (b) Gilbert V. Sykes, 16 Easty and Betting, Appendix,Part3. 150. (/) 8 & 9 Vict c. 109, s. (c) Allen v. Hearn, 1 T. R. 18. 56. (g) Distinction taken in {d) 8 & 9 Vict c. 109, s. Connor v. Quick, cited 2 W. 15. Bla. 708. (e) See the Rules of Racing WAGERS. 301 in the Court of Common Pleas, Westminster, Nov. 30, 1846, it appeared that a match in harness had been made between one Isaacs, a Jew dustman, and the plaintiff, who was a Cab owner, and on the event of this Race they had made a Wager of 201. a side, which each party- had deposited with the defendant, a Publican. Previous to the Race, the plaintiff gave Notice to the defendant that he should "break off" the Bet, and he should re- quire back his money. The defendant however did not return it, but paid the whole deposit to the other party after he had walked over the course ; an action w^as then brought to recover the 20/. which had been deposited by the plaintiff. At the trial, it was contended on the part of the de- fendant that, under 8 & 9 Vict. c. 109, s. 18, the action was not maintainable. But the learned Judge overruled the objection, and held that the Statute was not meant to apply to a case like the present, in which the party depositing the money had given Notice to the Stake- holder to pay him it back before the time had arrived for the Wager to be decided. And the Jury, on the evidence, found a verdict for the plaintiff (A). A rule nisi for a new trial, on the ground of misdirec- Decision of tion, was afterwards obtained in the Court of Common ^^^ ^^^^'^ ^^ Pleas, and in discharging the rule Mr. Justice Maule pieas. said : — *' Looking at the whole section {i), critically and grammatically, I am of opinion that it does not apply to any action like this, where a party seeks to recover his deposit from a Stakeholder upon a repudiation of the Wage?\ This cannot be considered as an action brought for recovering a sum of money alleged to be won upon a Wager; nor do I think it is an action brought to recover a sum deposited in the hands of the defendant to abide the event of a Wager. That must necessarily mean an action to be sustained on the ground of the existence and the determination of the Wager. Here the money is not claimed on that ground. Quite the reverse. The plaintiff insists that the sum he seeks to recover is money which belongs to him, and which the defendant has no right to keep, and which he is under no legal or moral obligation to pay to anybody else. As soon as the defendant received Notice from the plaintiff (h) Varney v. Hickman, (z) 8 & 9 Vict c. 109, s. 18, Nov. 30, 1846. Appendix. 302 The Act for the suppres- sion of Bet- ting Houses. The Stock Jobbing Act. Does not affect Time bargains in Foreign Funds. RACING, WAGERS AND GAMING. that he declined to abide by the Wager, the money ceased to be money deposited in the hands of the former to abide the event, and became money of the plaintiff's in his hands, without any good reason for detaining it. Upon these grounds I think this point ought to be determined in favour of the plaintiff. It was said in the coui*se of the argument that the general scope of the Act is to prohibit Gaming and Wagering ; and that this object would be best attained by holding monies deposited with Stakeholders not to be recoverable in this way. But I see no pretence for construing the Act to mean anything so penal without express words." And in this opinion Cresswell and V. Williams, Js., agreed {j). The act for the suppression of Betting Houses (A), which is treated of in the Chapter on Betting Houses and Gaming Houses (/), has made various important provi- sions with respect to Betting, and with respect to receiv- ing money, &c., as the consideration for any assurances, &c., to pay money, &c. (m) — or as a Deposit on any Bet, on condition of paying any money, &c. — " on the hap- pening of any event or contingency of or relating to a Horse Race, or any other Race, or any Fight, Game, Sport or Exercise (w)." The Stock Jobbing Act, 7 Geo. 2, c. 8, which is inti- tuled "An Act to prevent the infamous Practice of Stock Jobbing," was passed with a view to prevent a common practice which had been found destructive to the interests of the country. All contracts for liberty to put upon, accept or refuse any Public Stocks, or Securities and Wagers, &c. are declared to be void{o). This Statute imposes Penalties on the parties guilty of the different acts prohibited, makes various provisions on the subject, and also renders them liable, by a Bill in Equity filed against them, to answer on oath touching the contracts they may have entered into(^). But although it operates upon Time bargains in the {j) Varney v. HicJcman, 5 C. B. 282. (k) 16 & 17 Vict c. 119, Appendix. (Z) See Betting Houses and Gaming Houses, joosi, Chap. 5. (to) 16 & 17 Vict. c. 119, s. 1, Appendix. (n) Ibid. ss. 3, 5. (o) 7 & 8 Geo. 2, c. 8, s. 1. (p) 7&8Geo. 2, c. 8; and see Wells v. Potver, 3 Scott, 150; S. a 2N. C. 722. WAGERS. 303 Funds (q) of this country (r), Time bargains in Foreign Funds are not void, as they are not illegal at common law (s). And it was held by the Court of Common Pleas that Nor in Railway Shares, not being " Joint Stock," did not come Shares, within the Stock Jobbing Act, 7 Geo. 2, c. 8(f). Where each party means to break the contract, but to Where each give the other a remedy against him for the difference of fo bre^^th^ price, according as the Market may rise or fall, it is a Contract. Gambling transaction, being a mere Bet upon the future price (m). Thus in a Time bargain in Shares, it is understood by As in a time both parties that the Shares are never to be delivered ^^^s^^- into the hands of the purchaser. It is nothing more than a Wager made between the parties upon the difference of the price at the time that the supposed purchase is made, and the price on the settlement day. If the shares rise one party is to receive, and if they fall he is to be at a loss. A colourable contract for the sale and purchase of Gaming Railway Shares, where neither party intends to deliver ^j^hin 8 & 9 or to accept the Shares, but merely to pay the " differ- ences" according to the rise or fall of the Market, is Gaming within 8 & 9 Vict. c. 109, s. 18 {x). And the question to be left to the Jury in such case is. Question to whether it be a bond Jide contract, which each party at J^^^ *° *^^ the time meant to perform, or whether the transaction was not a mere Bet upon the future price of the commodity. And that if neither party intended to buy or sell, it would be no bargain, but a mere Gambling transaction (y). It is enacted by 14 Geo. 3, c. 48, s. 1, that " No In- statute surance shall be made by any Person or Persons, Bodies agamst Wa- Politic or Corporate, on the life or lives of any person cies. or persons, or on any other event or events whatsoever, {q) The practice of Fund- {s) Wells v Por^gr, 3 Scott, ing appears to have been in- 141. troduced by the Venetians {t) Hewitt v. Price, ^M.. 8c and Genoese in the sixteenth G. 355. century. The establishment (m) Grizewood \. Blane, 1\ of Funds was not introduced C. B. 540. into this country until after (x) Ibid. 538. the Revolution, in 1668. \y) Ibid. 541 ; Bennett v. (r) Oakley y.Rigby, 3 Scott, Hall, before Mr. Justice 194. Crompton, Guildhall, Jan. 23, 1853. 304 EACING, WAGERS AND GAMING. What held to be such a Policy. Wager as to declaration of War. What was held not to he such a Policy. Paying a Bet. Giving a Security. Where a Note or Bill is a gift. wherein the person or persons for whose use, benefit, or on whose account such Policy or Policies shall be made, shall have no interest, or by way of Gaming or Wager- ing ; and that every Assurance made, contrary to the true intent and meaning hereof, shall be null and void to all intents and purposes whatsoever." An engagement, in consideration of forty guineas, to pay 100/. in case Brazilian Shares should be done at a certain sum on a certain day, subscribed by several per- sons, each for themselves, is a Policy void under 14 Geo. 3, c. 48 (z). Where a Wager was made that war would be declared against France within three months, it was held by the Courts of Queen's Bench and Common Pleas, although the Court of Exchequer was of a contrary opinion, that the Wager was void under 14 Geo. 3, c. 48. No Judg- ment, how'ever, was ever given on the case («). Where money w^as advanced upon an Assignment of an expected devise, Avith a condition that if there should not be such a devise, then that the money should be re- paid without interest ; it was held not to be a Policy on the life of the testator within 14 Geo. 3, c. 48 {b). As no Wager can be tried in any Court of Law or Equity, the winner cannot compel payment from the loser (c) ; and therefore if the money be paid, it is in fact giving a gratuity. If a Note, Bill or Mortgage be taken as a security for money, either won by betting on the sides and hands of persons Gaming, or knowingly lent for the purpose of such betting, or where such betting is going on, the con- sideration is illegal under 5 & 6 Will. 4, c. 41. But any other security under seal would appear to be good, where the Gaming is not illegal (d). So that if a Note or Bill be given in payment of any Bet, except such as has been made on the sides or hands of persons Gaming, it is in reality a gift, and its value will depend upon circumstances. Thus where a Bill had been given gratuitously. Lord Abinger, C. B., in deliver- ing the Judgment of the Court of Exchequer, in Easton {z\ Pater son v. Powell, 9 Bing. 320. (a) See Foster v. Thackeray, cited in Allen v. Hearn, 1 T. R, 57, n. {b) Cook V. Field, 15 Q. B. 475. (c) 8 & 9 Vict. c. 109, s. 18. {d) See Gaming, post, Chap. 4. WAGERS. 305 V. Pratchett {e), said, " If a man give money as a gra- tuity, it cannot be recovered back, because the act is complete; yet a man who promises to give money cannot be sued on such promise ; and if so, I do not see how a promise in Amting not under seal can have any binding effect. The law makes no difference between such a pro- mise and a verbal one. There is the same distinction as to a Bill of Exchange. If a party gives to another a negotiable instrument on which other parties are liable, the man who makes the gift cannot recover the bill back, and the man to whom the bill is given may recover against the other parties on the bill ; but it is a very different question whether the giver binds himself by the indorse- ment so as to make himself liable thereupon to the person to whom he gives it. There is no decision that he does, and there is a strong authority the other way ; and the prevailing opinion in the profession is, that a parol pro- mise of a gift, whether verbal or in writing, will not be binding." A Race Course is a mart where stolen or lost Notes Taking a may be readily disposed of, and therefore a party should stolen Bank always use due caution in taking a Bank Note from a ment. stranger, either in payment of a Bet, or in change out of payment for Bets lost, and the larger the amount of the Note the greater the care required. In Goodman v. Harvey (f), the Court of Queen's what invaii- Bench held that there must be actual mala fides to in- ^^^es the validate the right of the holder of a Bill or Bank Note, right, received from a person having no title to it. And also that the existence even of gross negligence was unim- portant, except so far as it might be evidence of mala fides (/). This decision was confirmed by the case oiUther v. Mala fides JRich {g\ where the Court of Queen's Bench held that "^^^^f ^^'- mala fides in the holder of a negotiable security, if relied proved. on, must be distinctly alleged. And that the only proper way of implicating him in an alleged fraud, is by averring that he had Notice of it, and that an allegation that he (e) Easton v. Pratchett, 1 P. 736. C. M. & R. 798; ^. C. 3 (/) Goodman v. Harvey, 4 Dowl. 472 ; 1 Gale, 83 ; and A. & E. 870. see the same case in error, 2 {g) Uther v. Rich, 10 A. & C. M. & R. 542; 4 Dowl. E. 784; and see Arboin v. 549; 1 Gale, 250; 6 C. & Anderson, 1 Q. B. 498. 306 RACING, WAGERS AND GAMING. was not a bond fide holder, is not equivalent to an aver- ment of such Notice. Money bor- Formerly money borrowed for the express purpose of Bets*^ ^° ^^^ settling losses on a Race to the amount of lOZ. or up- wards could not be recovered by the lender, although be bore no part in the transaction \K). This was so held on the ground of illegality ; but as that no longer exists, it would appear that a person borrowing money for the purpose of paying his betting losses on a Race, whatever their amount may be, is as completely indebted to the lender as if he had borrowed it for any other purpose whatsoever. For in a case where an I O U aiforded prima facie evidence of a debt, and an injunction was sought to restrain the party from suing on it, on the ground that a great part of the consideration was money lent for gambling purposes ; on its appearing that the transaction had taken place in a foreign countrj'^, where such Games were not illegal, the injunction was re- fused {i). An Agent authorized by a party to lay Bets for him on a Race to the amount of lOZ. or upwards, could not if he lost pay the winner without an express direction so to do {k). But now since 8 & 9 Vict. c. 109, has done away with the illegality of all wagers on Races, it would appear that a Betting Agent may pay all losses within the scope of his commission. The ActfZ) does not make gaming contracts illegal, but null and void, and therefore it would be contrary to public morality to lay down that a party who has received money lost in a Wayer should by pleading this statute escape paying over the fair share to his partner (w). Where therefore a Bill of Exchange was given as a security for a share of money won in betting transactions a plea of Gaming under 8 & 9 Vict. c. 109, s. 18, was held to be bad (n). In the case of Reg. v. Orbell(o), it was held to be an indictable offence to get a person to lay money on a A Betting Agent. A Betting Partner. Cheating wager. (h) M'Kinnell v. Robinson, 3 M. & W. 434; Canne v. Bryan, 3 B. & Aid. 179. (i) Quarrier v. Colston, 1 Turn. & Ph. 147. (k) Clayton v. Dilly, 4 Taunt. 165. (0 8&9Vict. c. 109, s. 18. (m) See per Jervis, C. J., Johnson v. Langley, 1 Leg. Ex. 334(Exch.) (n) Johnson v. Langley, 1 Leg. Ex. 334(Exch.) (o) Reg. v. Orbell, 6 Mod. 42. WAGERS. 307 Race, and prevail with the party to run booty ; for though the Cheat was private in this particular, yet it was public in its consequences. Cheating, however, is now specially provided against by the 17th section of 8 & 9 Vict. c. 109, where it is enacted that " every person who shall by ojiy fraud or unlawful device or ill practice, in wagering on the event of any Game, Sport, Pastime or Exercise win from any other person to himself or any other or others, any sum of money or valuable thing, shall be deemed guilty of obtaining such money or valuable thing from such other person by a False Pre- tence with intent to cheat or defraud such person of the same, and being convicted thereof shall be punished ac- cordingly ;" and therefore every such person is guilty of a misdemeanour, and on conviction is liable at the dis- cretion of the Court to Penal Servitude for the term of four years (p), or to suffer such other punishment by fine or imprisonment, or by both, as the Court shall award {q) ; and the prosecutor is entitled to his costs under 7 Geo. 4, c. 64, s. 23 (r;. (j9) 7 & 8 Geo. 4, c. 29, s. 53. s. 53; 16 & 17 Vict c. 99, (r) Per Patteson and Tal- ^ s. 4. fourd, Js., Reg. v. Gardner^ (q) See 7 & 8 Geo. 4, c. 29, Worcester Spr. Ass, 1851. 308 RACING, WAGERS AND GAMING. CHAPTER IV. GAMING. Gaming not unlatvful .... 309 Where a London Appren- tice ^* frequents Gam- ing^' id. Where a Clergyman plays at unlawful Games. . . . id. Unfair or excessive Gam- ing id. Using false Dice id. Winning exorbitant Sums id. Losses by a Bankrupt .. 310 Cheating in a Game or at Play id. The Fraud or unlawful Device 311 Conspiracy to cheat at Skittles id. Conspiracy to cheat at Cards id. Where a Criminal Infor- mation was refused ... 312 Contracts for Gaming .. . id. Money deposited for Gam- ing id. French Law as to Games id. English Ijuw as to Games id. The word Game 313 Lawful Games, 8fc. ..... id. Lawful Gaming or Play . id. Unlawful Games id. Lotteries 314 Lotteries declared Nui- sances id. Penalty for keeping a Lot- tery id. Penalty for drawing at a Lottery id. Littlegoes declared Nui- sances 315 Penalty for keeping a Place for a Lottery or Litflego 315 Penalty for suffering any Lottery to be drawn . . id. Justices have no Summary Jurisdiction id. Racing Sweeps id. Sale of Property by Lot . 316 Attempt to evade the Law id. Art Unions id. A Lottery of Houses .... id. Ballot in Land Societies . 317 Allotment or Partition by Lots id. Choice of Allotments .... id. The Conservative Land Society 318 Repayment of Money .... id. Cock-fighting, Bull-bait- ing, 8fC id. Within the Metropolitan District 319 Gaming in a Public House id. Where Money is staked . . id. Where Money is not staked id. Money lent for Gaming . . 320 Test where the Transac- tion is illegal id. Securities for Money lent for Gaming id. Action on a Promissory Note id. Identification of Promis- sory Note id. Anl.O.U. 321 Money lost at Play id. Securities for Money so lost I • « id. GAMING. 309 Action against Acceptor of Evidence of Owner of a Bill of Exchange .. 323 Action by Acceptor of Bill of Exchange 324 Recovery of Principal and Interest id. Gaming House 324 Summons to set aside a Warrant of Attorney . . id. A Post Obit Security held good id. GAMING. Gaming, by playing at Cards, Dice, or any other Gaming not Games, and all exercises, when practised without fraud ^^^i^^'^^l- and as a recreation, are not offences at common law ; such transactions however have never met with much encouragement when brought into a Court (a). By the custom of London, it is a sufficient cause for a Where aLon- INIaster to turn away his Apprentice, that he frequents ^P^ fPP^^"- Gamiug, and he may justify it before the Chamber- quents lain (b). Gaming. But it is laid down that the Bishop cannot refuse to Whereacier- induct a Clergyman when presented to a living, merely gyman plays because he is a Player at unlawful Games, or a Haunter Games^7^^^ of Taverns (c) ; because, as Sir Simon Degge says, each of these is not malum in se, but only malum prohibi- tum (d). An Indictment lies for unfair or excessive Gaming, Unfair or which has always been considered illegal (e). " Gaming? " Common players and hazarders with false Dice" are Using false indictable (/), and even an infant may be indicted for i^ice. cheating with false Dice(^). The winning of exorbitant sums of money has been Winning ex- discouraged both by Courts of Law and Equity. Thus, orbitant in the case oi' Sir Bazil Firebrasse v. Brett (h), it ap- ^^™*" peared that the defendant and Sir William Russell dined with the plaintiff at his house, and after dinner fell into play. When they began, the defendant and Sir William (a) Bac. Abr. tit. Gaming, {d) Degge's P. C, Part 1, A. ; Dalton, c. 23 ; Sherbon v. Chap. 1. Coleback, 2 Vent. 175 ; Crock- (e) 2 Rol. Abr. 78. ford v. Lord Maidstone, Ap- (/) Leeser's Case, Cro. Jac. pendix. 497. (6) Woodroffe v. Farnham, (g) Bac. Abr. Infant (H.) 2 Vern. 291. (h) Sir Bazil Firebrasse v. (c) Specofs Case, 5 Rep. Brett,lYeYn.iS9; Sir Brazill 58 a, p. 11 8. Firebrasse v. Brett, 2 Vern. 70. 310 RACING, WAGERS AND GAMING. Losses by a Bankrupt. Cheating in a Game or at Play. Russell had not above eight guineas between them, but they won about 900Z. in ready money, which the de- fendant brought away with him. The plaintiff, upon losing this, being somewhat inflamed by wine, brought down a bag of guineas, containing about 1,500/., which the defendant also won ; but as he was leaving the house with it in his possession, the plaintiff and his servants seized upon it, and took it from him. The plaintiff had brought an information against the defendant for playing with false Dice, but he was acquitted. The defendant then brought an action of Trespass against the plaintiff for taking from him in a forcible manner this bag of guineas. The Lord Chancellor granted an injunction to stay these proceedings at law, though the defendant had by answer denied all the circumstances of fraud charged in the Bill. And liis Lordship said, that he thought the sum very exorbitant for a man to lose at play in one night, and that if it w'as in his power he would prevent it ; and cited the case of Sir Cecil Bishop v. Sir John Staples in the time of Lord Chief Justice Hale, about a Wager upon a Foot race, and that the Chief Justice said, in that case, that those great Wagers proceeded from avarice and were founded in corruption, and decided that he would give the defendant leave to imparl from time to time. His Lordship then said, that if such discourage- ment was given to Gaming at Common Law, it ought much more to be done in a Court of Equity. No Bankrupt is entitled to his Certificate if he shall have lost by any sort of Gaming ©r Wagering in one day 20Z., or within one year next preceding his Bankruptcy have lost 200Z., either by Gaming or Wagering, or "by any Contract for the purchase or sale of any Government or other Stock, when such contract was not to be per- formed within one week after the contract, or where the Stock bought or sold was not actually transfen*ed or de- livered, in pursuance of such contract (i)." Cheating in a Game or at Play is now an indictable offence ; for by the 17th section of 8 & 9 Vict. c. 109, it is enacted, " that every person who shall by ?ca:y fraud or unlawful device or ill practice in playing at or with Cards, Dice, Tables, or other Games, or in bearing a part in the Stakes, Wagers, or Adventures, or in betting on the sides or hands of them that do play, or in wager- (0 o8cQ Vict. c. 122, s. 38. GAMING. 311 ing on the event of any Game, Sport, Pastime, or Exer- cise, win from any other person to himself, or any other or others, any sum of money or valuable thing, shall be deemed guilty of obtaining such money or valuable thing from such other person by a False Pretence, with intent to cheat or defraud such person of the same, and being convicted thereof shall be punished accord- ingly(A).- The "fraud or unlawful device^' must be practised The fraud or during the Game itself to support an indictment for ob- ^P^awfui de- taining money by a false pretence, under 8 & 9 Vict. c. 109, s. 17 ; and it is not sufficient that a fraud was re- sorted to, to induce the prosecutor to play (?). Where several persons confederated and combined Conspiracy together to play at Skittles, so that the play of one of L^^P^ ** them should betoken his skill to be much less than it really was, in order that the prosecutor (a looker-on) might be induced to play with him, and thereby lose to him his money : it was held to be an indictable con- spiracy (m). So also where C. and J. were indicted for conspiring to Conspiracy cheat certain persons out of money by playing at Cards, to cheat at it appeared that J. went first into an Inn and sat down ^^^'^^• to di'ink ; after some time C. made his appearance with a bag of nuts ; he took not the slightest notice of J., but in a short time he pulled some Cards out of his pocket, and proposed to play for the nuts. There were three Cards, and any person who selected the highest was to have a pennyworth of nuts for a halfpenny. Several persons played, and were allowed to win until all the nuts were gone. C. then proposed that they should play for a shilling ; J. played and lost the first shilling ; he then played again and won. Others played, but even- tually C, who had won some money, was discovered cheating in consert Avith J. ; upon this C. left the room, but was afterwards apprehended in J.'s company. It was shown that they were travelling and lodging together, notwithstanding they had pretended that they were strangers. The Jury found them both guilty [n). (A:) 8 & 9 Vict c. 109, s. C. C. 390. 17; and see Cheating in a («) Reg. v. Clark and Jer- Wager, ante, Part 3, Chap. 3. vis, before Mr. Justice Erie, (0 Reg. v. Bailey, 4 Cox, Bodmin Spr. Ass. March 23, C. C. 397. 1853. {m) Reg. V. Bailey, 4 Cox, 312 RACING, WAGERS AND GAMING. WTiere a cri- minal infor- mation was refused. Contracts for Gaming. Money de- posited for Gaming. French law as to the re- covery of Stakes. English Law as to the re- covery of Stakes. A Criminal information was refused by the Court oi Queen's Bench for a conspiracy to cheat, where it ap- peared that the persons making the application, as well as the other parties against whom it was made, were a set of Cheats and Gamblers (o). By 8 & 9 Vict. c. 109(/>), " all contracts or agree- ments, whether by parol or in writing, by way of Gaming or wagering," are null and void. And where money has been paid to a Stakeholder, in pursuance of a contract for illegal Gaming, either party may recover back his share before it has been paid oyer iq). But in no case can the wliole be recovered by the winner. The French law does not allow an action for a debt at play. But Games proper in the exercise of Feats of arms. Foot races. Horse or Chariot races, Tennis, and other sports of the same nature, which require address and agility of body, are excepted, subject to the power of the Court to reject the demand where the sum appears to be excessive (r). Under the Proviso in the 18th Section of 8 & 9 Vict. c. 109, the enactment in that section is " not to be deemed to apply to any subscription or contribution, or agreement to subscribe or contribute, for or toward any Plate, Prize, or Sum of money to be awarded to the winner or winners of any lawful Game, Sport, Pastime or Exercise (s)." It is not clear what is excepted by the word Game in that Proviso, but it seems probable that the " Sum of money to be awarded to the whinner" at the termination of "any lawful Game, Sport, Pastime, to Exercise," is meant to be a sum ascertained before the commencement of such Game, &c., as distinguished from the case where it is uncertain what sum may be won or lost until the Game has concluded. It w^ould appear therefore, that so long as the money won is a Stake and not a Bet, and the Game, &c. is lawful, and perhaps the sum ascertained before the commencement (o) Rex V. Peach, 1 Burr. 548. (jo) 8 & 9 Vict. c. 109, s. 18, Appendix. iq) Cotton V. Thurland, 5 T. R. 408 ; Smith v. Bickmore, 4 Taunt. 474 ; Hastelow v. Jackson, 8 B. & C. 221 ; Hod- son V. Terrell, 1 C. & M. 802. (r) Code Civil, Book 3, tit. 3, Chap. 1, art 1965, 1966. (s) 8 & 9 Vict. c. 109, s. 18, Appendix; and see Wa- gers, ante, Part 3, Chap. 3. GAMING. 313 of such Game, &c, the winner may maintain an action against a loser for his Subscription or Contribution to the Stake (t). The following are lawful Games, Sports, Pastimes or Lawful exercises:— Horse Races (m), Steeple Chases (a:), Trotting Games, &c. Matches(y), Coursing Matches (z). Foot Races(a), Boat Races (Z)), Regattas (c), Rowing Matches (c), Golf, Wrestling Matches (6?), Cricket (e), Tennis, Fives, Rackets, Bowls (/), Skittles (^), Quoits, Curling, Put- ting Stone, Football (^), and every bond fide variety, or similar description of such Games, &c(«). The winner therefore, in any of these, maj'^ recover from the loser, or each of the losers, his Subscription or contribution to the Stake (A). The following lawful Games when played for money(Z) Lawful may be called Lawful Gaming or P/az/; Whist and gaming or other lawful Games at Cards, Backgammon (w), Bil- ^^' liards(w), Bagatelle (w), Chess(6»), Draughts(o), Domi- noes(o), &c. A variety of Games are prohibited by Statute. Thus Unlawful all Lotteries are declared to be public nuisances in what- Ga,mes, {t) The distinction between a Stake and a Bet was taken in Connor v. Quick, cited 2 W. Bla. 708. (m) See the Law as to Racing, ante. Part 3, Chap, 2. {x) See Evans v. Pratt, 4 Scott, N. R. 378. {y) See Holmes \. Sixsmith, 7 Exch. 802. {z) ^ee Daintree V.Hutchin- son, 16 M. & W. 87 ; Emerson v. Dickson, ante, p. 289. (a) See Batty v. Marriott, 5 C. B. 818 ; Coates v. Hatton, 3 Stark 61. (b) See Cheeseman v. Hart, ante, p. 293. (c) See Bostock v. North Staffordshire Railway Com- pany (V. C. P.) 3 M. Dig. 274. (d) See Kennedy v. Gad, 3 C. & P. 376 ; Manby v. Scott, 1 Mod. 136. (e) See Jeffreys v. Walter* 1 Wils. 220 ; Walpole v. San- ders, 7 D. & R. 130 ; Hodson v. Terrill, I C. & M. 797; Holmes v. Bagge, 17 Jur. 1095 (Q. B.) (/) See Sigel v. Jebb, 3 Stark. 2. (g) See Foot v. Baker, 5 M. & G. 339 ; Batty v. Mar- riott, 5 C. B. 818; Reg. v. Bailey, 4 Cox, C. C. 396. {h) See Manby v. Scott, 1 Mod. 136. (0 See 7 & 8 Vict c. 30. (k) See 8 & 9 Vict. c. 109. (l) If money is not staked it is not Gaming, Reg. v. Ash- ton, 22 L. J. M. C. 1 (Q. B.) (ra) See 13 Geo. 2, c. 19, s. 9, Appendix. (n) See 8 & 9 Vict. c. 109, s. 13, Appendix. (o) See Reg. v. Ashton, 22 L. J. M. C. 1 (Q. B.) 314 RACING, WA.GERS AND GAMING. Lotteries. Lotteries de- clared nui- sances. Penalty for keeping a Lottery. Penalty for drawing at a Lottery. ever way they may be drawn or arranged (j?). The Games of The Ace of Hearts, Pharaoh, Basset and Hazard {q) are to be deemed Games, or Lotteries by Cards or Dice, and are unlawful, whether played at a public table or in private (r) . Also the Game of Passage and every other Game with Dice, except Backgammon and other Games played with Backgammon tables, are to be deemed Games or Lotteries by Dice within 12 Geo. 2, c. 28 (s). The Game of Rolypoly, or Roulet, is also prohibited under the same penalties (^). The Statutes containing provisions concerning Lotte- ries and Littlegoes are 10 & 11 Will. 3, c. 17; 9 Ann. c. 6 ; 10 Ann. c. 26; 8 Geo. 1, c. 2; 9 Geo. 1, c. 19 ; 6 Geo. 2, c. 35 ; 12 Geo. 2, c. 28 (m) ; 13 Geo. 2, c. 19 ; 42 Geo. 3, c. 119; 46 Geo. 3, c. 148; 6 & 7 Will. 4, c. 66; and 7&8yict. c. 109; and are to be found in Burn's Justice (x), under the head of " Gaming and Lotteries." Also see the late Acts 8 & 9 Vict. c. 74, with regard to advertising Lotteries, and 9 & 10 Vict. c. 48 {u), for legal- izing Art Unions. The statute 10 cr 11 Will. 3, c. 17, recites the mischiefs arising from Lotteries under colour of certain patents and grants; and then enacts, not only that all such Lotteries, but also that all other Lotteries, 'dve public nuisances(y). It imposes a Penalty of £500, to be recovered in any of her Majesty's Courts at Westminster, upon every person who may " exercise, expose, open or show to be played, thrown or drawn at, any such Lottery, Play or Device, or other Lottery {z)J^ Also a Penalty of £20, to be recovered in like manner upon every person who " shall play, throw or draw at any such Lottery, Play or Device, or other Lotte- ries («)." {p) 10 & 11 Will. 3, c. 17, s. 1. {q) See Crockford v. Lord Maidstone, Appendix ; Rex v. Liston, 5 T. R. 240. (r) 12 Geo. 2, c. 28, s. 2, Appendix ; and see M'Kinnell v. Robinson, 3 M. & W. 441 ; Rex v. Liston, 5 T. R. 240. (s) 13 Geo. 2, c. 19, s. 9, Appendix. (0 18 Geo. 2, c. 34, s. 1, Appendix. (m) See Appendix. (.r) 3 Bere & Chitty's Burn's Justice, 322. («/) 10 & 11 Will. 3, c. 17, s. 1 ; and see Allport v. Nutt, 1 C. B. 989. {z) 10 & 11 Will. 3, c. 17, s. 2. (a) Ibid. s. 3. GAMING. 315 The statute 42 Geo. 3, c. 119, recites the mischiefs Littiegoes occasioned by certain Lotteries called Littiegoes, and de- nu^jgan^c'es dares that " all such Games or Lotteries called Littiegoes are public nuisances (/^)." And it is enacted that no person " shall publickly or Penalty for privately keep any Office or Place, to exercise, keep open, keeping a show, or expose to be played, drawn, or thrown at or Lottery or in, either by Dice, Lots, Cards, Balls, or by numbers or Littiego. figures, or by any other way, contrivance, or device what- soever, any Game or Lottery called a Littlegoe, or any other Lottery whatsoever not authorized by Parliament," under a Penalty of £500, to be recovered in the Court of Exchequer, at the suit of the Attorney-General (c). The same Penalty is also incurred by any person who Penalty for '' shall knowingly suffer to be exercised, kept open, L^f^ery^tobe shown, or exposed to be played, drawn, or thrown at or drawn, &c. in, either by Dice, Lots, Cards, Balls, or by Numbers or Figures, or by any other Way, Contrivance, or Device whatsoever, any such Game or Lottery, in his or her House, Room, or Place {d)." Before the passing of the Vagrant Acts, 3 Geo. 4, c. 40, Justices have and 5 Geo. 4, c. 83, Offenders not proceeded against for the ^"""paiy above Penalty were punishable as Rogues and Vagabonds under 17 Geo. 2, c. 5. But though by 5 Geo. 4, c. 83, s. 1, it is enacted, "That all provisions heretofore made relative to Rogues and Vagabonds'' are repealed, yet it would appear that the combined operation of 3 Geo. 4, c. 40, s. 21, and 5 Geo. 4, c. 83, s. 21, continues to Jus- tices of the Peace their jurisdiction under 42 Geo. 3, c. 119(e). Derby Lotteries or Sweeps on Races, &c. are illegal. Racing and within the express words, and clear intention, of the Sweeps. Statutes against Lotteries (/). And this was so held by the Court of Queen's Bench in a case, where subscribers paid £1 each, on condition that the subscriber whose name should be drawn out of a box, next after the name (6) 42 Geo, 3, c. 119, s. 1; v. Justices of Bristol, Jan. 11, and seeAlfportv. Niiit, 1 C. B. 1854 (Q. B.) 989. (f) The proviso in s. IS (c) 42 Geo. 3, c. 119, ss. 1, of 8 & 9 Vict. c. 109, has no 2 ; and see Allport v, Nutt, 1 relation to Racing Lotteries, C. B. 989. and therefore does not make (^d) 42 Geo. 3, c. 119, s. 2. them legal, Gatty v. Field, 1-j [e) Case of H. King, Bristol, L. J. 408 (Q. B.) Dec. (j, 1853 ; S. C. nom. Reg. r 2 316 Sale of Pro- perty by Lot. Attempt to evade the Law. Art Unions. A Lottery of Houses. RACING, WAGERS AND GAMING. of the Horse, wliicli afterwards should be placed first in the Race, was drawn out of another box, should be en- titled to receive £100 (^). The mischief intended to be remedied by the Laws against Lotteries was not the gain acquired by the indi- vidual keeping a Lottery, but the introduction of a spirit of speculation and gambling, tending to the ruin and impoverishment of families. Therefore if a Horse were sold by Tickets, amounting in the aggregate to no more than his true value, that would be a Raffle or Lottery (h). Where an announcement was made by a dramatic per- former that the holder of a certain Ticket of admission to the Theatre should be entitled to a gold watch of a spe- cified value, and the price of Tickets had been conse- quently raised, it was held, that the holder of the Ticket could not recover the value of the watch, as such a proceeding was in point of fact a Lottery (i). By the " Act for legalizing Art Unions" (k), it is pro- vided that voluntary associations constituted for the dis- tribution of works of art by lot are to be deemed legal, where a royal charter has first been obtained. An action was brought to recover a sum of money upon a covenant contained in a deed which the defendant had executed on the 27th of October, 1849, whereby he covenanted to pay the plaintiff the sum of 630Z. on the 27th of April, 1850. The defendant pleaded that the deed in question was founded upon, and was executed in pursuance of, an unlawful agTeement which had pre- viously been entered into between the parties, whereby it was agreed that certain Houses should be conveyed by the plaintiff to the defendant, to the intent and for the purpose that they should be disposed of by the defendant by Lottery. The defendant contended that the agreement was illegal under 10 & 1 1 Will. 3, c. 17, and the deed founded upon it void. The issue being upon the defendant, the defendant himself was put into the box, and stated that a scheme had been adopted at Manchester for disposing of house property by Lotteiy, and that he had entered into an agreement with the plaintiff for the purchase of seventeen houses in Sheffield, which, it was understood between them, were to be disposed of in the same manner. (g) Allport v. Natl, 1 C. B. 988. {h) See Allport v. Nult, 1 C. B. 98 K (i) Roddy v. Stanley, 5 Ir. Jur. 10. {k) 9 & 10 Vict. c. 48, s, 1, Appendix. GAMING. 317 The shares were publicly advertized at Sheffield, and the first drawing took place in August, 1849, when a portion of the property was disposed of by the defendant, with the concurrence and assistance of the plaintift*. It was then agreed that the remaining portion of the property should be transferred to the defendant, which was done accordingly, and on the same day the deed was executed upon which the present action was brought. All this was done, as the defendant stated, with the full know- ledge of the plaintiff that the houses were to be disposed of by Lottery ; and, in fact, the price which he was to pay for the same was much exaggerated by the illegal nature of the conti-act. The plaintiff had taken a book containing shares which he sold, and accounted for the proceeds to the defendant, who, at the time of the pur- chase, had no otlier means of paying for the property, except from any proceeds which he might obtain from the sale of the shares, and that was well k.aown to the plain- tiff. The Jury, upon this statement, immediately found a verdict for the defendant (Z). A question arises whether the Ballot which takes place Ballot in in Land Societies for the choice of allotments constitutes ^^"<^ Socie- a Lottery within the meaning of the Lottery Acts, and particularly 12 Geo. 2, c. 28 (wz). It is provided by the 11th section of this Act(w) that Allotment or nothing contained in it is to affect any interest in lands. Partition by &c., held by any Allotment or Partition by Lots. But that all who may at any time become " part owners, joint tenants or tenants in common" of any land, &c., may take such interest as they might have done by virtue of any "Lot, scroll, chance or allotment whatsoever," if this Act had never been passed {a). Where there are a great many subscribers to a Land Choice of Society, and Allotments only for a few, it may very fairly Allotments. be said that it shall be decided by Lot whether a par- ticular shareholder. A., shall have the choice of one of these Allotments, or whether he shall remain for the present in statu quo, that is, without the land, but with the same account in the books of the Society as before the Allot- ment. yl) Fisher \. Bridges,'before (n) 12 Geo. 2, c. 28, s. 11, LordCampbell, C. J., Queen's Appendix. Bench, Feb. 1, 1853. (o) See O'Connor v, Brad- (m) See Appendix. shaw, 5 Exch. 890. 318 RACING, WAGERS AND GAMING. The Conser- vative Land Society, Repayment of money. Cock-fight- ing, BuU- baiting, &c. The plan of drawing by Ballot for priority of the right of choice, as adopted by the Conservative Land Society, is not unlawful. This balloting, which does no more than determine and regulate the order and priority in which the members are to be entitled to the right of selecting allot- ments, and to advances upon them when selected, does not appear to fall within the words or spirit of the Lottery Acts. And the only system of allotment which could be con- sidered a Lottery, is where there are a number of sub- scribers who absolutely pay over their money for the chance of obtaining by the Ballot a portion of Land, but who have not the option of receiving back again the money after they have lost their chance. Cock-fighting is illegal, and indictable at common law(/>). But this and a variety of other cruel sports are prohibited under a penalty, by 5 & 6 Will. 4, c. 59, s. 3, which jRecites, that " whereas cruelties are greatly promoted and encouraged by persons keeping Houses, Rooms, Pits, Grounds, or other Places for the fighting or baiting of Dogs, Bulls, Bears, or other Animals, and for fighting Cocks, and by persons aiding or assisting therein ; and the same are great nuisances and annoy- ances to the neighbourhood in which they are situate, and tend to demoralize those who frequent such places." It Declares and Enacts, that "if any person shall keep or use any House, Boom, Pit, Ground, or other place for the purpose of running, baiting or fighting any Bull, Bear, Badger, Dog, or otiier animal (whether of do- mestic or wild nature or kind), or for Cock-fighting, or in which any Bull, Bear, Badger, Dog, or other such animal shall be baited, run or fought, every such person shall be liable to a penalty not exceeding 61., nor less than 10s., for every day in which he shall so keep and use such Ilouse, Room, Pit, Ground, or place for any of the purposes aforesaid ; Provided always, that the person who shall act as manager of any such House, Room, Pit, Ground, or other place, or who shall receive any money for the admission of any person thereto, or w^ho shall assist in any such baiting or fighting, or Bull-running, shall be deemed and taken to be the keeper of the same for the purposes of this Act, and be liable to all such penalties as are by this Act imposed upon the person who {p) Bac. Abr. Gaming(A); 3 Keb. 403, 510. 1 GAMING. 319 shall actually keep any such House, Room, Pit, Ground, or other places for the purposes aforesaid." By the Metropolitan Police Act, 2 & 3 Vict. c. 47, Within the s. 47, it is enacted " that every person who within the ^letropolitan Metropolitan Police District shall keep or use or act in the management of any House, Room, Pit, or other Place for the purpose of fighting or baiting Lions, Bears, Badgers, Cocks, Dogs, or other Animals, shall be liable to a penalty not more than 5/., or in the discretion of the magistrate may be committed to the House of Correction, with or without hard labour, for a time not more than one calendar month ; and it shaU be lawful for the Com- missioners of Police, by order in writing, to authorize any Superintendent belonging to the Metropolitan Police Force, with such Constables as he shall think necessary, to enter any Premises kept or used for any of the pur- poses aforesaid, and take into custody all persons who shaU be found therein without lawful excuse, and every person so found shall be liable to a penalty not more than 5s., and a conviction under this Act of this offence shall not exempt the owner, keeper or manager of any such House, Room, Pit or Place from any Penalty or penal consequence to which he may be liable for the nuisance thereby occasioned." It is an offence against the tenor of a Publican's Li- Gaming in a cence to ''knowingly suffer an}^ unlawful Games or ^^^^^^^^ any Gaming whatsoever" in his house (5'). If money is staked at a lawful Game played in a Where _ Public House it is an offence against tlie tenor of the "?°?f J ^^ X • 1 /-v /-I ^-1 / ° stakea. Licence under 9 Geo. 4, c. 61 {r). But not if there is no money staked. Therefore a Where conviction was held to be bad which stated that the ™""^^ ^^ "°* keeper of a Public House licensed under 9 Geo. 4, c. 61, had been "Guilty of an offence against the tenor of his Licence, that is to say, that he knowingly suffered a certain unlawful Game, to wit, the Game of Dominoes, to be played in his house ; " because the Game of Domi- noes is not itself unlawful, and playing at Dominoes does not necessarily amount to " Gaming" within the meaning of the Licence (s). Money lent for the purpose of Gaming would appear ^^Q^^^^f^"* (g) 9 Geo. 4, c. 61, Sched. M. C. 2 (Q. B.) (C.) (5) Reg. v. Ashton, 22 L. J. (r) Reg. V. Ashton, 22 L. J. M. C. 1 (Q. B.) 320 RACING, WAGERS AND GAMING. Test where the transac- tion is ille- gal. Securities for Money lent for Gaming. Action on a Promissory Note. Identifica- tion of a Pro- missoryNote. to be now recoverable, unless it is lent where the Gaming is unlawful ; as, for instance, by a licensed Publican, to game on his own premises (t) ; or by any party to play Hazard, &c. And the principle is, that the repayment of money lent for the express purpose of accomplishing an illegal act cannot be enforced (u). The Test whether a demand connected with an illegal transaction is capable of being enforced at law, is, whether the plaintiff requires any aid from the illegal transaction to establish his case (x). As where illegality appeared upon the plaintiff's own showing, who was unable to establish his case, without setting up an illegal agreement (y). Bills of Exchange, Promissory Notes or Mortgages given for money lent knowingly for the purpose of Gaming, or playing at any Game, or lent at the time and place of such play {z), to persons who during any part of the time may play, are to be deemed to have been given for an illegal consideration («). Thus where an action was brought to recover the sum of 251. on a Promissory Note given by the defendant to the plaintiff, the defendant pleaded that he had given the Note as security for a sum of money which the plain- tiff had given him to enable him to carry out a gambling purpose on their joint account, namely — to enable him to make certain Bets on a Horse-race. And on this plea being proved, the Jury found a verdict for the defen- dant (b). To an action on a Promissory Note, the defendant pleaded that it was given for a Gambling transaction, but gave the plaintiff' no Notice to produce it, and it was not pro- duced. At the trial, the defendant gave evidence that he had never given the plaintiff any other Note than the Note in question. It was held that in the absence of the production of the Note, this was not sufficient to identify the Note referred to in the plea with the Note sued on (c). (t) Foot V. Baker, 5 M. & G. 339. (u) M^Kinnell v. Robinson, 3 M. & W. 441. (a-) Simpson v. Bloss, 7 Taunt. 246. (y) See Martin v. Smith, 6 Scott, N. R. 272. (2) If the money is lent at the time and place, the pur- pose of the loan is assumed ; Foot V. Baker, 5 M. & G. 339. (a) 5 & 6 Will. 4, 0. 41 ; and see Giving a Security for a Bet, p. 304. (b) Meynell v. Bone, before Mr. Baron Alderson, Middle- sex Sittings, E. T. 1853. (c) Meynell v. Bone, 21 h. T. 158 (Exch.) GAMING. 321 An I. O. U. being a mere acknowledgment of a debt, An i. o. u. does not amount to a Promissory Note. It \% prima facie evidence of an account stated, but not of money lent {d). And it has been held that a Bill in Equity will lie to discover whether an I. O. U. was given for money lent for the purpose of Gaming (e). Money lost at play when paid cannot be recovered Money lost back again by the loser {f) But if it has not been paid, ^^ ^^^^' the winner cannot maintain any action for it, because the contract is null and void {g). All Securities under seal, except Mortgages, given for Securities Money lost at lawful Play, or at any legal Game, would for money now appear to be good (Ji). But where a Promissory ^° ^^ ' Note, a Bill of Exchange, or a Mortgage, has been given for money so lost, it is not void as formerly, but is to be deemed and taken to have been given for an illegal consideration (i). The consequence of which is, that they are still void as between the original parties, and also as against all persons who have taken them wdth Notice of the illegality, or after they have become over- due, or without giving value for them ; but good in the hands of every person who has given value, and taken the instrument bond fide, and before it was due (A). The effect of the Act, therefore, seems to be, that where a sum of money is won as a Stake in a lawful Game, or under other cu'cumstances therein mentioned, and a Promissory Note, Bill of Exchange or Mortgage is given in payment, or as a security, not only is the instrument void as between the parties themselves, but the circumstances of its having so been given avoids the contract on which it is founded. In such case, therefore, the winner not only loses the benefit of his security in {d) Fesenmayer v. Adcock, (h) Formerly void under 9 16 M. & W. 449; Croker v. Ann. c. 14, s. 1, which is al- Walsh, 4 Jr. Jur. 293 (Exch. tered and repealed by 5 & 6 Ir.); Byles on Bills, 6th Ed. Will. 4, c. 41, ss. 1, 2, and 8 19, and the cases there cited. & 9 Vict. c. 109, s. 1.5. (e) Wilkinson V. L' Eaugier, (i) 5 &: 6 Will. 4, c. 41, 2 Y. & C. 366. Appendix. {f) M'Kinnellv. Robinson, (k) Smith, Contr. 186; 3 M. & W. 441 ; Thistlewocd Fadenilke v. Holroyd, before V. Cracroft, 1 M. & S. 500; Chief Justice Wilde, Common Smith, Contr. 188. Pleas Sittings, Nov. 30, 1846. (g)8&9Victc.l09,s.l8. p5 RACING, WAGERS AND GAMING. writing, but is deprived of his claim to the consideration upon which it was given. The Court of Exchequer, however, appear to have gone further in their construction of the Statute ; for Mr. Baron Rolfe in delivering the Judgment of the Court in Applegarth v. Colley (/), and speaking of 5 & 6 Will. 4, c. 41, says, " That Act, while it repeals so much of the Statute of Anne as makes the securities voidy expressly enacts that they shall be deemed to have been given on an illegal consideration, and it is impossible to impute to the Legislature an intention so absurd as that the consideration should be good and capable of being enforced until some security is given for the amount, and then that by the giving of the security, the consideration should become bad." The necessary conclusion is then arrived at, namely, " that the Statute of Anne, in connection with the 5 & 6 Will. 4, c. 41, must be taken to avoid all contracts for the payment of money won at play ;" and of course all other contracts within the first section of 9 Anne, c. 14. According to this view then, every possible considera- tion within 5 & 6 Will. 4, c. 41, for any Note, Bill or Mortgage is void, and we are reduced to the dilemma of being obliged to hold that the winner of a Stake or the lender of money in any lawful Game, where his right to recover could never otherwise be disputed, is precluded from his remedy on account of the existence of the possi- bility of his taking a Note, Bill or Mortgage within the Statute as security for his Stake or Loan. And therefore the sum agreed to be paid to the winner of a Horse Race could never be recovered, if we hold that such a Race is now meant by the word Game. However, if the point had come directlj'^ before the Court, perhaps a different opinion might have prevailed. Li Thorpe v. Colman{m), the Court of Common Pleas studiously guarded themselves against expressing an opi- nion on the construction put by the Court of Exchequer upon 5 & 6 Will. 4, c. 41, and the case was decided on another ground. In a later case (n), however, Mr. Justice Coltman makes the following remarks: — " It certainly does seem {I) Applegarth y. Colley, 10 C. B. 199. M. & W. 732. («) Batty v. Marriott, 5 (m) Thorpe v. Colman, 1 C. B. 828. GAMING. 323 to be a singular anomaly, that the winner of a Race should be entitled to recover the Stakes, and yet that by the combined operation of 9 Ann. c. 14, and 5 & 6 Will. 4, c. 41, if a Promissorj'^ Note or other security were given for the amount, he would be precluded from availing himself of it, by reason of the illegality of the considera- tion." Tlie 5 & 6 Will. 4, c. 41, is ^' An Act to amend the Law relating to Securities given for Considerations aris- ing out of Gaming, usurious and certain other illegal Transactions." It is founded on 16 Car. 2, c. 7, and 9 Anne, c. 14, both of w'hich are acts to prevent excessive Gaming ; and the notion upon which the sections with regard to securities in writing were probably framed, appears to have been, that there would be less danger of excessive and immoderate Gaming, if people w^ere kept as much as possible to playing for ready money. The Legislature therefore having encouraged cash or money transactions, it is quite conceivable that a contract should be good so long as a money payment was contemplated, but become void betw'een the parties immediately on se- curity being given. This construction of the Statute seems much more reasonable, than that all contracts w^ithin 5 & 6 Will. 4, c. 41, in connection with 9 Anne, c. 14, before any security is given, should be void be- tween the actual parties. To an action against the acceptor of a Bill of Exchange, Action dra\^ n by the plaintiff, the defendant pleaded that a Bet cf^^or 0^6111 was lost by the defendant to A. B., and that the said Bill of Exchange, of Exchange was, at the request of A. B., given and ac- cepted by the defendant in consideration of the said Bet, and to secure payment thereof, contrary to the Statute, &c., and that there never was any other consideration for the acceptance of the said Bill, and that the plaintiff at the time when he drew, and the defendant accepted, the same, had Notice of the premises. The evidence was, that the defendant had accepted a prior Bill drawn by the plaintiff in consideration of the Bet lost to A. B., and that the Bill sued upon was given in renewal of that prior Bill. The Jury found that the Bill declared upon was given in consideration of the Bet, and that the plaintiff had Notice of it. And the Court of Queen's Bench held that the plea was good, and was an answer to the action under 5 & 6 Will. 4, c. 41 (o). (o) Hay v. Ayling, 20 Boulton v. Coghlan, 1 Bing. L. J. 171 (Q. B.); and see N.C. 640. Evidence of Owner of a Gaming House. 324 RACING, WAGERS AND GAMING. Action by Under 5 & 6 Will. 4, c. 41, s. 2, money paid to the Buf^ ?E°^ indorsee by the acceptor of a Bill of Exchange, given for change. a Gaming consideration, may be recovered from the per- son in whose favour the Bill was originally accepted, in an action for Money paid by the plaintiff to the use of the defendant at his request (j3). Recovery of And where such a Bill paid by the plaintiff bore Inte- principai and j-gg^ u^on the face of it, it was held by the Court of interest. Queen's Bench that the plaintiff was entitled to recover back the Interest paid, as well as the principal money, both being " secured" by the Bill {q). In an action on a Bill of Exchange, the defence was, that the money for which the Bill was given had been lost in a Gaming transaction. The person who let the Room in which the Gambling took place, was asked a question tending, if answered, to render him liable to be proceeded against under 8 & 9 Vict. c. 109, when the Judge interfered. On a motion for a new trial, on the ground of misdirection, the Court of Common Pleas held that the Judge was right, and refused the rule (r). In Barnett v. Ravenshaw (s), an order was made by a Judge at Chambers, on a summons to show cause why a certain Warrant of Attorney, alleged to have been given for a Gambling debt, should not be set aside. In 1833, a Post Obit security was given in considera- Securityheid ^- q£ Certain Gaming^ debts. In 1842, it was assigned " ' to another party for valuable consideration, who gave Notice to the trustees of the fund. It was held in 1853, by the Master of the Rolls, that, after the lapse of time, the Deed must be considered to have been given for good consideration (t). i Summons to set aside a Warrant of Attorney. A Post Obit {p) Gilpin v. Clutterbuck, 13 L. T. 71 (Q. B.) (q) Gilpin \. Clutterbuck, 13 L. T. 159 (Q. B.) (r) Fisher v. Ronalds, 20 L. T. 100 (C. P.) (5) Barnett v. Ravenshaw, 21 L. T. 63 (Exch.) (t) Hawker v. Woodj'W eekly Reporter, 316 (M. R.) ( 325 ) CHAPTER V. BETTING HOUSES AND GAMING HOUSES. Betting Houses. A Common Betting House 326 Act for the Suppression of Betting Houses id. Purposes for which Houses or Places are not to be used id. Penalty for using them for such Purposes 327 Penalty for receiving Money, Sfc. on certain Conditions id. Money, Sfc. so received may be recovered from the Holder 328 Act does not extend to Stakes in a Race, Sfc. . . id. Penalty for advertizing, SfC id. Power to search suspected Houses id. Power of Commissioners of Police 329 The Levy and Application of Penalties id. Where Party neglects to prosecute id. The remaining Provisions id. Gaming Houses. A Common Gaming House 329 Indictment for keeping one 330 Charge in the Indictment id. Any Person may go on with it id. Statutory Provisions for an Indictment 330 Notice by two Inhabitants id^ Binding over the Party accused id. Duty of Overseers of the Poor 331 Penalty where Constable neglects his Duty .... id. Setting up or playing at Hazard, 8{c id. Evidence that Haza played id. Rent of a Gaming House, id. A Subscription Club .... id. What is a Common Gam- ing House under 8 4" 9 Vict. c. 109 332 Evidence on an Informa- tion for playing Hazard id. Power of Justices id. In the MetropolitanDis- trict 333 Evidence of Gaming .... id. Difficulty of obtaining Evi- dence id. Penalties on Gaming House Keepers 334 Penalty for playing .... id. Gaming for Money need not be proved id. Witnesses indemnified ... id. Proceeding by Indictment not prevented 335 Billiards, Bagatelle, Sfc. . id. Regulations regardingBil- liard Licences id. RACING, WAGERS AND GAMING. Non-compliance with these Regulations 335 Offences against the Tenor of the Licence 336 When Billiard playing is not allowed 336 Constables may Visit li- censed Houses id. Purposes for which Houses or Places are not to be used. BETTING HOUSES. It is quite clear that any practice which has a tendency to injure the public morals, is an offence at common law(«). And it is equally clear that the keeping of a common Betting House has such a tendency. For it is found that persons ai-e tempted by such places, not only to spend more of their own money than they can properly aiford to lose, but also to embezzle the property of their employers. It would appear therefore that by law a common Betting House is a public nuisance. By the late ^' Act for the Suppression of Betting Houses (Z>),^' various stringent provisions are made, and it would appear that persons using any "House, Office, Boom or other place," not excepting the Room at Tat- tersalls or Newmarket, or the Stand at Epsom, for certain purposes mentioned in the Act, are liable to the Penalties which it specifies (c). It is not quite clear what is meant by the word using ; but as a "person using" a Place is distinguished from " persons resorting thereto," it is presumed that a person using a Place within the meaning of the Act, must be a person who uses the Place not as a private individual, but as a person who makes a business of attending there for the purpose of holding himself out as ready to bet with "persons resorting thereto," or to receive money, &c., as the consideration for any assurance, &c. to pay money, &c. "on any event or contingency of or relating to any Horse Race, or other Race, Fight, Game, Sport or Exercise (c)." No House, &c. or other Place is to be opened, kept or used for the purpose of the Owner, &c. or of any person using the same, or of any person employed or acting on behalf of such Owner, &c. or person using the same, or any person managing or conducting the business thereof, (a) See Rex v. Rogier, 1 B. & C. 272; S. C. 2 D. & R. 431. (b) 16 & 17 Vict c. 119, Appendix. (c) See Ibid. ss. 1, 3. BETTING HOUSES. 327 Betting with persons resorting thereto, or a)r the purpose of any money or valuable thing being received by or on behalf of such Owner, &c. or person, or as or for the consideration for any assurance, &c. " to pay or give thereafter any money or valuable thing on any event or contingency of or relating to any Horse Race or other Race, Fight, Game, Sport or Exercise, or as or for the consideration for securing the paying or giving by some other person of any money or valuable thing on any such event," &c. Every such House or Place is declared to be a common nuisance (e), and is to be deemed a com- mon Gaming House within 8 & 9 Vict. c. 109(f). Any Owner or Occupier, or person using any House, Penalty for &c. or other Place, opening, keeping or usin^ the same ^^^"^ ^^^^ _ for any of the above-mentioned purposes, or being Ow^ner pose^. ^ or Occupier wilfully permitting the same to be opened, kept or used for any such purposes, or any person manag- ing or assisting in conducting the business of any Houses, &c. or Place opened, kept or used for any such purposes, is on summary conviction before two Justices of the Peace (^) liable to a Penalty not exceeding lOOZ., and pajanent of costs, or to imprisonment not exceeding six calendar months (^). Any Owner or Occupier, or person acting on his behalf, Penalty for or managing or assisting in conducting the business of '^^'^^^^^"l any House, &c. or Place opened, kept or used for any on certain * of the above-mentioned purposes, who shall receive any conditions, money or valuable thing as a Deposit on any Bet on condition of paying any money or valuable thing, on the happening of any event " relating to a Horse Race, or any other Race, or any Fight, Game, Sport, or Exercise," or as or for the consideration for any agreement, &c. to pay or give any money or valuable thing on any such event, and any person giving any acknowledgment, security, &c. on the receipt of any money or valuable thing so paid or given, purporting or intended to entitle the bearer or any other person to receive any monies or valuable thing on the happening of any such event, is on summary conviction before two Justices of the Peace (g) liable to a (e) 16 & 17 Vict. c. 119, lice District, 2 & 3 Vict. c. s. 1, Appendix. 71, s. 14. (/) Ibid. s. 2. (h) 16 & 17 Vict. c. 119, (g) Or a Police Magistrate s. 3, Appendix, within the Metropolitan Po- 328 RACING, WAGERS AND GAMING. Money, &c. so received may be re- covered from the holder. Act does not extend to Stakes in a Race, &c. Penalty for advertising, &c. Power to Search sus- pected Houses. Penalty not exceeding 50Z., and payment of costs, or to imprisonment not exceeding three calendar months (A). Any money or valuable thing received by any such person as a Deposit on any Bet, or as or for the con- sideration for any such agreement, &c., is to be deemed to have been received for the use of the person from whom it was received, and may be recovered with full costs in any Court of competent Jurisdiction {I). The Act is not to extend to the Holder of any " Stakes or Deposit to be paid to the winner of any Race or lawful Sport, Game or Exercise," or to be paid " to the Owner of any Horse engaged in any Race(7?z);" as where, for instance, the Owner of the Second Horse is entitled to receive back his Stake. Any person exhibiting or publishing, or causing to be exhibited or published, any Placard, Advertisement, &c., making it to appear that any House, &c. or Place is opened, kept or used for the purpose of making Bets in manner above-mentioned, or for the purpose of exhibiting Lists for Betting, or with intent to induce any person to resort to such House, &c. or Place, for the purpose of making Bets or Wagers in manner above-mentioned, or any person who on behalf of the Owner or Occupier, or person using any such House, &c. or Place, may invite other persons to resort therein for the purpose of making any Bets or Wagers as above-mentioned, is on summary conviction before two Justices of the Peace (w) liable to a Penalty not exceeding 30?., and payment of costs, or to imprisonment not exceeding two calendar months (o). A Justice of Peace, upon complaint made on oath, may authorize the search of any suspected House or Place by special Avarrant to a constable, who may obtain necessary assistance, and also use force if required to make an entry, and arrest, search, and bring before a Justice of the Peace all persons found there, and seize all Lists, Cards or other documents relating to Racing or Bet- ting (;?). {k) 16 & 17 Vict. c. 119, s. 4, Appendix. (0 Ibid. s. 5. (?«) Ibid. s. 6. (w) Or a Police Magistrate within the Metropolitan Po- lice District, 2 & 3 Vict. c. 71, s. 14. (o) 16 & 17 Vict. c. 119, s. 7, Appendix. {p) Ibid. s. n. BETTING HOUSES. 329 Within the Metropolitan Police District, and the Power of Dublin Metropolitan Police District, a Commissioner of Jj?™™^^^^!^"; Police may authorize any Superintendent of Police, ac- companied by such Constables as may be directed to assist him, to enter any suspected House, &c. or Place, and to use force if necessary, and take into custody all persons found there, and to seize all Lists, Cards or other documents relating to Racing or Betting (g'). Penalties and costs may be levied by^ distress (r). Half The levy and of every pecuniary penalty is to be paid to the Informer, penalties!" ° and the remaining half to be applied in aid of the Poor Rate of tbe parish or extra-parochial place where the offence was committed (s). In case a person who has laid any complaint or in- ^^J^jP^^*^ formation do not appear at the time at which the de- prosecute, fendant may have been summoned to appear, or on the adjournment of the summons, or neglect to prosecute, any Justices having authority to adjudicate may autho- rize some other person to proceed on such summons, or take out a fresh one, as if the previous summons had not been granted (t). An Appeal is given to Quarter Sessions (u), and no The remain- objection is to be allowed to the Information or Comdc- ^fn^'^^^*' tion on matter of form (.r). The Certiorari is taken away (x), and a distress is not to be unlawful for want of form (2/). In any action amends may be tendered (z\ but one month's Notice of Action must be given, and it must be brought within tliree months of the doing of the alleged damage(«). This Act, which came into operation on the 1st of December, 1853(6), is not to extend to Scotland (c). GAMING HOUSES. All Common Gaming Houses are nuisances in the eye A Common of the law, not only because they are great temptations ^0^55° to idleness, but because they are apt to draw together great numbers of disorderly persons ; they promote 119, (q) 16 & 17 Vict c. 119, (y) 16 & 17 Vict, c, ss. 12, 18, Appendix. s. 15, Appendix. (r) Ibid. s. 8. (2) Ibid. s. 16. (/) Ibid. s. 9. (a) Ibid. s. 17. (t) Ibid. s. 10. (b) Ibid. s. 18. («) Ibid. s. 13. (c) Ibid. s. 19. (x) Ibid. s. 4. 330 RACING, WAGERS AND GAMING. Indictment for keeping one. Charge in the Indictment. Any person may go on with it. Statutoiy Provisions for an In- dictment. Notice by two inhabi- tants. Binding over the party ac- cused. clieating and other corrupt practices, and incite to idle- ness and avaricious ways of gaining property (6f ) . Tlie Keeper of a common Gaming House is indictable and punishable as for a misdemeanour with fine or im- prisonment, or both ; and his wife may be joined with him, or they may be indicted severally {d). The Indictment would seem to be good if it merely charges the defendant with keeping a common Gaming House (e); as where a person is indicted for the offence of keeping a House where people assemble to play Rouge et Noir (e). And as it is an Indictment for a public nuisance, and not for any matter in the nature of a private injury, any person may go on with it even against the consent of the original prosecutor, if he has discontinued it(y). Under 25 Geo. 2, c. 36 (g), provision is made for the indictment of " any person Avho shall act or behave him or herself as master or mistress, or as the person having the care, government or management of any Gaming House, &c." To encourage prosecutions for keeping Gaming Plouses, &c., tvvo inhabitants of any Parish or Place may give Notice in writing to the constable of any person there keeping a Gaming House, &c., upon which Notice the constable is to go with such inhabitants to a Justice of the Peace, who on making oath that they believe the contents of such Notice to be true, are each to enter into a recognizance in the sum of 201. to give evidence, and the constable into a recognizance in the sum of 30Z. to prosecute at the next General or Quarter Sessions or Assizes (h). After the constable has entered into such recognizance to prosecute, the Justice is to make out his warrant to bring the accused person before him to be bound over to appear at the General or Quarter Sessions or Assizes, there to ansAver such bill or indictment (i), as may then (d) Hawk. c. 32, tit. Com- mon Nuisances, 66 ; Rex v. Dixon, 10 Mod. 336; Rex v. Mason, Leach, C. C. 548 ; Rex V. Rogier, 1 B. & C. 272; S. C. 2 D. & R. 431. (e) Rex V. Rogier, 1 B. & C. 272; S. a 2 D. & R. 431. (/) Rex v. Wood, 3 B. & Adol. 657. (g) 25 Geo. 2, c. 36, ss. 6, 8. (/») Ibid. s. 5. {i) The Certiorari in all cases is taken away by s. 10. See Reg. v. Sanders, 9 Q. B. 235. GAMING HOUSES. 331 be found for the offence. And the Justice may in his discretion take security for such person's good behaviour iu the meantime (k). The Overseers of the Poor of the parish or place are Duty of to pay the constable the reasonable expenses of prosecu- Jhe^Poor" tion, and on conviction 10/. to each of the two inhabi- tants, on penalty of forfeiting double the sum (I). Any constable who may neglect or refuse upon such Penalty Notice to go before any Justice of the Peace, or to enter ^^^[f fl!!?' mto such recognizance, or may be wiltuUy negligent in lects his carrvmg on such prosecution, is for every offence to forfeit ^"^y- 20/. to each inhabitant giving such Notice (fn). Any person setting up the Games of the Ace of Hearts, Setting up Pharaoh, Basset or Hazard, is liable on summary con- Haz^rd°&c. viction before a Justice of the Peace to a penalty of 200/. And any person playing or staking at any of the Games is liable in the same manner to a penalty of 50/. («). On an information before two Magistrates under this Sufficient Statute (o) "for setting up, maintaining and keeping a hazard has^ certain Game, to be determined by the chance of Dice, been played, called Hazard," the proof was that certain persons were found in the House playing at Hazard with Cards; that a Dice-box and Dice were found on the table the subse- quent day, and these facts were held sufficient to warrant the Justices to conclude that the Game of Hazard was there played (p). If a person knowingly lets a House for the purpose of Rent of a its being used as a Gaming-house, he cannot recover the ^a™i°g rent. This defence was set up in the case of Parsey v. Edmonds (q), but as it was not proved the Juiy found a verdict for the plaintiff. An establishment which is carried on as an ordinary 4. subscrip- Club, the members being regularly balloted for, and '^^"^ chargeable with an entrance fee of ten guineas, and the like for a yearly subscription, is held not to be a common Gaming-house, though it appear that in part of the House Whist is generally played at 3 o'clock in the afternoon, and Hazard at night after a supper, Avhich is provided (k) 25 Geo. 2, c. 36, s. 6. Appendix. (l) Ibid. s. 5, Appendix. ( p) Rex v. Liston, 5 T. R, (m) Ibid. s. 7. 390. (n) 12 Geo. 2, c. 28, ss. 2, (q) Parsey v. Edmonds, he-- 3, Appendix; M'Kinnell v. fore Mr. Baron Martin, Exch. Robinson, 3 M. & W. 438. N. P. Jan. 20, 1853. (o) 12 Geo. 2, c. 28, s. 2, Power of Justices. RACING, WAGERS AND GAMING. gratuitously for the members by the proprietor (s). But if the rules are a mere sham, and no one is called on to pay if he plays, while all who choose to go there gain access, then the case is different (5). Under 8 & 9 Vict. c. 109, a common Gaming House, '^ contrary to law," may be a place either where people play an unlawful Game against a Bank, or where a lawful Game is so arranged that the chances are in favour of the Table. This is set out with particularity in the 2nd section of the Statute (^), which after Reciting that *' whereas doubts have arisen whether certain houses, alleged or reputed to be opened for the use of the sub- scribers only, or not open to all persons desirous of using the same, are to be deemed common Gaming Houses," Declares and Enacts, " that in default of other evidence proving any house or place to be a common Gaming House, it shall be sufficient in the support of the allega- tion in any indictment or information, that any house or place is a common Gaming House, to prove that such bouse or place is kept or used for playing therein at any unlawful Game, and that a Bank is kept there by one or more players exclusively of the others, or that the chances of any Game played therein are not alike favourable to the players, including among the players the Banker or other person by whom the Game is managed, or against wliom the other players stake, play or bet (m)." In every case, except within the Metropolitan Police District, in which the Justices of Peace in every Shire, and Mayors, Sheriffs, Bailiffs and other head officers within every City, Town and Borough, now have by law authority to enter into any house, room or place where unlawful Games are suspected to be held(.r); any Justice of the Peace, upon complaint made before him on oath that there is reason to suspect any house, room or place to be kept and used as a common Gaming House, may by his warrant, at any time in his discretion, authorize anj'^ Constable, together with necessary assist- ance, to make an entry in the same manner as might have been done by such Justices, Mayors, &c., in person. (s) Crockford v. Lord Maid- stone, 8 L. T. 217 (Exch.); and see S. C. Appendix. (0 8 & 9 Vict. c. 109, s. 2, Appendix. (M)lbid. For form of indict- ment, see Archbold's Criminal Pleading, 12th Ed. 718. (x) 33 Hen. 8, c. 9, s. 14, Appendix. GAMING HOUSES. 333 Permission is also given to use force if necessary in making such entiy, either by breaking open doors or otherwise, and authority is given to arrest, search and bring before a Justice of the Peace both " the keepers and the persons resorting and playing there (^)," to be dealt with ac- cording to law (z). Within the Metropolitan District (a), if any Superin- In the Me- tendent belonging to the Metropolitan Police force report lr?P°^*^" in writing to the Commissioners of Police of the Metro- polis that there are good grounds for belief, and that he believes that a house, room, or place within the Metro- politan Police District is kept or used as a common Gambling House; either of these Commissioners, by their order in \\Titing, may authorize the Superintendent to make an entry, with such Constables as the Commissioner may direct to accompany him, and if necessary to use force to effect such entry, either by breaking open the doors or otherwise, and to take into custody all persons there found, and to seize all Tables and Instruments of Gaming, and all Monies and Securities for money found in such house or premises (b). He may also search all parts of the house or premises where he shall suspect that Tables or Instruments of Gaming are concealed, as weU as all persons there found, and seize all Tables and In- struments of Gaming he may happen to find (c). And where any Cards, Dice, Balls, Counters, Tables Evidence of or other Instruments of Gaming used in playing any un- Gaming, lawful Game are so found, it is evidence, until the con- trary is made to appear, that such house, room or place is used as a common Gaming House, and that the persons so found were there playing ; although no play w^as actually going on in the presence of such Superintendent or Constable or those accompanying him on his entry. And the Police Magistrate or Justices, before whom any person is taken hj virtue of the warrant or order, may direct all such Tables and Instruments of Gaming to be forthwith destroyed (d). But the difficulty of obtaining such evidence of Difficulty of Gaming is so great, that this portion of the Act is prac- obtaining cally a dead letter. All modern Gaming Houses are pro- vided with the means of secretly making away with the (?/) 8 & 9 Vict. c. 109, s. 3. s. 48. Appendix. (b) 8 & 9 Vict. c. 109, s, 6. (z) 33 Hen. 8, c. 9, s. 14. (c) Ibid. s. 7. (a) See 2 & 3 Vict. c. 4, (d) Ibid. s. 8. 334 RACING, WAGERS AND GAMING. Penalties on Gaining House keepers. Penalty for playing. Gaming for money need not be proved. Witnesses in demnified. instruments of Gaming on any alarm being given. The only way to remedy this defect would be to enact, that where the Police armed with the proper authority are obliged to break into a suspected House, all persons found there without lawful excuse should be liable to the penalties of this Act. The OA\Tier or keeper, and every person having the care or management of such Gaming House, and also every banker, croupier, and other person, in any manner conducting the business of it, on conviction, either by his own confession or by the oath of a credible witness before any two Justices of the Peace, besides being liable, under 33 Hen. 8, c. 9, to pay a fine of forty shillings for each day(e), and to be imprisoned till he shall have found sureties to abstain from such practices for the future if), is liable to such an additional penalty of not more than 100/. as may be adjudged by the Justices before whom he may be convicted ; or, in the discretion of such Justices, he may be committed for not more than six calendar months to the House of Correction, with or without hard labour. Ou non-payment of any penalty so adjudged, and of the reasonable costs and charges at- tending the conviction, one of the convicting Justices may, by his waiTant, authorize the same to be levied by distress and sale of the goods and chattels of the of- fender (^). The penalty under 33 Hen. 8, c. 9, for using and haunting and playing in Gaming Houses, is six shillings and eightpence for each time of so doing (A), and such persons when taken may be imprisoned till they give security to abstain from such practices for the future (i). It is not necessary in support of any information for Gaming in, or suffering any Games or Gaming in, or for keeping or using, or being concerned in the management or conduct of, a common Gaming House, to prove that a person found playing at any Game was playing for any money, wager or stake (A). A person who has been concerned in any unlawful Gaming, and who is examined as a witness by or before any Police Magistrate or Justice of the Peace, or on the trial of any indictment or information against the owner (e) 33 Hen. 8, c. 9, s. 11. (/) Ibid. s. 14. (^) 8 & 9 Vict. c. 109, s. 4. {h) 33 Hen. 8, c. 9, s. 12. (0 Ibid. s. 14. (A-) 8 & 9 Vict. c. 109, s. 5. GAMING HOUSES. 335 or keeper or other person having' the care or manage- ment of any common Gaming House, with respect to such unlawful Gaming, and making a true and faithful discovery to the best of his knowledge, is thereupon en- titled to a Certificate of indemnity from the Magistrate, Justice of the Peace, or Judge, by or before whom he is so examined (/). But the act is not to prevent any proceeding by In- Proceeding dictment against the owner or keeper, or other person ^^' indict- h* .1 , i> y~^ • mcnt not aving the care or management ot a common Gaming prevented. House, provided he has not been previously convicted of the same offence (wz). This act requires a Licence for every house fw), room Billiards, or place, where a public Billiard table, or Bagatelle ^^s^telie, board or instrument used in any Game of the like kind is kept, at which persons are admitted to play ; except in Houses or premises specified in a Victualler's li- cence (o). Justices of the Peace are authorized at their general Regulations annual licensing meeting to grant Billiard Licences to ^•ff'"*^jf^. such persons as, in their discretion, they deem fit and cences. ^' proper to keep such public Billiard tables, on payment of six shillings, and such licences are to continue a year(jo). The words "Licensed for Billiards'' are to be legibly painted in some conspicuous place on the outside of the house, and near the door (q). Every person neglecting to comply with these regula- Non-compii- tions may be proceeded against as the keeper of a ^7"^® "^^^^ common Gammg House, and in addition to the penalty tio^n^. ^^^ ^' to which he is liable for that oft'ence, he may be fined any sum the Justices may fix upon of not more than 107. for every day in which such Billiard table, &c. has been used ; or in the Justices' discretion may be committed to the House of Correction, with or without hard labour, for any term not exceeding one calendar month. A power of distress is given for non-payment of any pe- (l) 8 & 9 Vict. c. 109, s. 9, is so let, at a higher rate ; per Appendix. Willes, J., Rex v. St. Nicholas, (m) Ibid. s. 4. Gloucester, cited in Reg. v. (ji) If a Billiard Table South -Western Railway Com- stands in a House, and the pany, 1 Q. B. 581. House should, in respect of (o) 8 & 9 Vict c. 109, s. 11, such Table, let at a higher Appendix, sum, it is rateable, while the (/>) Ibid. s. 10. Table continues there and it {q) Ibid. s. 11. 336 RACING, WAGERS AND GAMING. Offences against the tenor of the Licence. When Bil- liard playing is not al- lowed. Constables may visit licensed Houses. nalty ; but no person summarily convicted can be in- dicted for the same offence (r). Persons offending against the tenor of their Licences are liable to the same penalties and punishments in the case of a first, second, or third offence as keepers of Inns, Alehouses, and Victualling houses, under 9 Geo. 4, c. 61, and all the provisions of that act with respect to convictions, penalties, &c. are to apply to convictions for offences against the tenor of the Licences under this act, and to the consequent proceedings (s). No keeper of any public Billiard table, &:c. whether he have a Victualler's Licence or not, is to allow any person to play between one and eight in the morning of any day, or at any time on Sundays, Christmas Day, Good Friday, or any day appointed to be kept as a Public Fast or Thanksgiving, and no Victualler is to allow any person to play during the time his premises are not by law allowed to be open for the sale of liquors; and during the hours that play is prohibited, every li- censed house and every Billiard room in every licensed Victualler's must be closed (^). All Constables and Officers of Police may enter any public Billiard room, &c. when and so often as they think fit, and the non-compliance with these regulations is to be deemed an offence against the tenor of the keeper's Licence (m). (r) 8&9Vict. c. 109, s.ll, Appendix. (5) Ibid. s. 12. (0 8&9Victc. 109, s. 13, Appendix. («) Ibid. s. 14. APPENDIX PART I. UNREPORTED CASES. Pettingall v. Pettingall. — Annuity bequeathed to keep a Favourite Mare, 337. Alexander and another v. Laidley and others. — Rule of the Road, 339. Simpson v. Potts. — Sidebones, 339. Hall V. Rogerson. — Laminitis, 340. Regina v. Cook. — Furious Riding, 343. Matthews v. Parker. — Navicular Disease, 343. Atkinson v. Horridge. —Thick-wind, 344. Crockfordv. Lord Maidstone. — A Common Gaming House, 345. Smart v. Allison. — Alteration of Structure in the Feet, 346. Hyde V. Davis. — Disease of the Lungs, 349. Elvin V. CAopmaw,— Negligent Driving in the Dark, 351. Bowden v. Sherman. — Negligent Driving at a Crossing, 352. Hadland v. Price.— K " Selling Race," 353. Percival v. Dudgeon. — Horse damaged by Negligent Driving, 354. Pettingall v. Pettingall. Before Fice-Chancellor Sir J. L. Knight Bruce, February \2tk, 1847. This was a petition presented by five reversionary legatees Annuity be- of a fund which it was sought to have distributed among them, queathed to security being given to provide for the object of the testator's y^yj-f *^r bounty, namely, a favourite black Mare, aged twelve years. The testator bequeathed to his executor, the plaintiff (who was his nephew), the sum of 50/. a year, to be expended for the Q 338 APPENDIX. keep of his favourite black Mare, which was to be " properly and comfortably kept in some park or paddock," to have her "shoes taken off, and never to be ridden or harnessed." " My executor," the testator said, " is to consider himself in honour bound to fulfil my wish, and to see that she is well provided for, and to be removeable at his will, and at the Mare's death all payments to cease." The fund had been carried to an ac- count called " The Black Mare's Account" It had been declared that the executor was entitled to the annuity of 50/., commencing from the death of the testator, for the proper and comfortable support and maintenance of the Mare, the executor undertaking to employ so much as was necessary for her support. The Mayor had been placed in ' Holland park, Kensington, and it was stated that the executor had fully complied, not only with the letter but with the spirit of the testator's will, and expended 30/. or 40/. annually in this way. Three of the reversioners were fe?7imes sole, advanced in life, and were willing to give a sum of money to the executor in order to have the immediate benefit of the legacies ; and the executor expressed his willingness to accept the offer, giving such security as the Court might require for the proper fulfil- ment of the testator's wishes. The Yice-Chancellor said, " I shall require not only a security for the executor's life but for the life of the Mare. Here is a trust in favour of the testator's favourite Mare, and this Court will take care that it shall be executed. Suppose the Mare to be ill-treated or neglected ; suppose the Mare to be put into a cart, would the Court allow the executor to re- ceive the annuity ? The Court would find somebody else to take proper care of the animal." Mr. Wigram, on the part of the petitioners, said that the residuary legatees might probably come and allege that the condition upon which the executor held the annuity had not been fulfilled. The Vice-Chancellor said, " Is it not the duty of this Court to fulfil the lawful intention of the testator ? This ani- mal, if well treated, may live for thirty years. I have a Horse myself which does not work, and which is considerably above thirty years of age." Mr. Wigram stated that the executor had great affection for animals, and had provided the Mare in question with every comfort and luxury that could be required. His Honor said he would make the order asked for by the petitioners, who were unmarried, the executor giving security for the care of the animal. The security must be equal to that of the consols. It was possible that the price of corn or grass might before the Mare's death be so high that 50/. per annum might not be too large a sum necessary to be expended in car- rying out the testator's wishes. He ultimately referred it to UNREPORTED CASES. 339 the Master to approve of a security, directing that the case should come again before the Court for its sanction of such security. Alexander and another v. Laidley and others. Before Mr. Baron Alder son, Carlisle Spring Assizes, 1847. Grainger, Temple and Perronet Thompson for the plaintiffs. Atherton and Fance for the defendants. This was an action on the Case against the defendants for Rule of the running down the ship of the plaintiffs. Road. Plea, not guilty. Alderson, B., in summing up, said to the Jury, " If there be no peculiar circumstances to the contrary, it is the duty of each party to keep his side. A person must act upon a reasonable and sensible course. If you see a man's carriage standing on the wTong side, you have no business to run it down. If the night be dark and the circumstances are not perceptible, the parties must follow the rule." Simpson v. Potts. Before Mr. Baron Rolfe, Carlisle Spring Assizes, 1847. Pashley and Unthank for the plaintiff. Temple for the defendant This was an action for Money had and received to recover Sidebones. back the price of a Mare, which had been sold to the plaintiff by the defendant warranted Sound. The Warranty was a verbal one, and the plaintiff's case was, that there was a con- dition in it authorizing a return of the Mare if she should prove unsound, on which ground she had been sent back to the defendant ; or, that at any rate, there had been an actual recision by consent Mr. Brockbank, a Veterinary Surgeon, proved that the Mare was brought to him by both parties to be examined, as she was lame at that time, and they wished him to say whether it was an unsoundness. He said that the lameness was produced by Sidebones, which is in fact Ossification of the Cartilages (a), and is an unsoundness, whether it produce lameness or not. If the Mare had absolute rest for any length of time, the lame- ness would leave her, but quick work and a hard road would bring it on again ; if she were ploughed, it would not so soon be shown. (a) Ossification of the Cartilages, ante. q2 340 APPENDIX. It was contended for the defendant that there was no con- dition in the Warranty authorizing a return, and that the defendant had taken her back to sell her on behalf of the plain tiif. RoLFE, B., told the Jury, ,** that they must be satisfied, either that the contract was rescinded, or that there was a condition in the Warranty authorizing a return of the Horse if it turned out unsound, and that in either of these cases Money had and received would lie." The Jury returned a ver- dict for the plaintiff. Hall v. Rogerson. Before Mr. Baron Alderson, Newcastle Spring Assizes^ 1847. Knowles, Q. C. and Mulcaster for the plaintiff. Granger and Otter for the defendant. Laminitis, This was an action of Assumpsit on a breach of tlie Warranty of a H orse. Pleas, 1st. Non Assumpsit. 2nd. Traverse of the unsoundness. The plaintiff bought a Horse of the defendant at the New- castle August Fair, 1846, warranted sound and quiet The Horse was re-sold with a Warranty to a Mr. Bramley at the Newcastle October Fair and taken to Nottingham ; but on turning out lame, he was taken back by the plaintiff in New- castle, and sold by auction in December. The Horse, before the first sale, had been twice burnt for Sandcrack(fe), which had been removed, and he had Cracked heels some time after sale. The alleged unsoundness was Laminitis {c). To prove the unsoundness Mr. King, Veterinary Surgeon and Livery Stable-keeper, stated that he had seen the Horse in his forge a week or two before the first sale ; that he had directed his shoes to be taken off, and on examining his feet, had observed a slight Convexity of Sole, which he pointed out to the defendant. The defendant then asked him if he would be justified in warranting the Horse as it had been warranted to him. The witness asked if he was satisfied the Horse went sound; he replied, " perfectly so." The witness then said he was justified. The witness next saw the Horse at his own stables, where he was kept after he had been purchased by the plaintiff. He observed him go short and crippled in his action, and he then had Cracked heels {d). A man was in- structed to poultice the forelegs, the heels were very tedious, (6) Sandcrack, ante. Pumiced Feet, ante. (c) See Laminitis and {d) See Grease, fl«te. UNREPORTED CASES. 341 and an ointment was applied. The Horse never got better of the crippled action while he stood there. He left October 29 and came back December 12. He was examined more care- fully after he was returned by Mr. Bramley. The hoof was then very much contracted at the coronary ring, just at the junction of the hoof. The soles continued convex, the heels hit the ground first, he went lame at that period, and was not a sound Horse. The witness's opinion was that he had Laminitis (e), or in- flammation of the LamincB of the feet, namely, of the connect- ing medium between the cortin-bone and the interior of the foot, which is admitted to be the supporter of the foot, there being numerous fleshy plates. That Inflammation of the foot (/) includes many other diseases, and produces an alteration in the structure of the hoof and sole. (Aldersox, B. : No doubt that is an unsoundness, and a very fatal one.) It is called Chronic Founder (g), and must have lasted some time, several months, most probably in August ; it generally produces lame- ness, and is a disease. {Alderson, B. : I hold whatever disease a Horse has, which renders it less capable of working, is an unsoundness.) On cross-examination the witness said, " I pointed out a slight disease in the sole, but thought he would have been justified in warranting him. If I had taken the precaution to see him go, things might have been different " He then stated that after an inflammation of the Lamina, the feet are never thoroughly restored. Convexity of Sole {e) comes on som.e time after a Horse is foaled; in this case he must originally have had a thin sole. It can never resume its natural appearance after being once convex, and amounts to an unsoundness. Inflammation of the viscera or of any im- portant organ is known to settle in the feet Mr. Pluyes, a Vetei'inary Surgeon, and partner of the last witness, remembered the Horse coming to their Stables in August, and frequently saw him exercised in the yard ; he went crippled, and did not put out \\\% fore feet freely at that time; he thought it proceeded from Cracked heels {h). In December they examined him and found a great alteration of structure in his feet, which might take place in a short time if the inflammation were very acute. Mr. Bramley, a Horse-dealer and Publican at Nottingham, boiight the Horse of the plaintiff" for ool. at t'.ie Newcastle October Fair warranted sound. The morning after pur- chase, he came out lame at Ferry Hill, about twenty miles off"; it was supposed to proceed from Cracked heels (h). (Al- derson, B. : That would be an unsoundness.) When the (e) See Laminitis and (g) See Founder, an^e. Pumiced Feet, ante. (h) See Grease, ante. (/) See Contraction, ante. 342 APPENDIX, Horse arrived at Nottingham he was still lame, and the wit- ness had him examined by Mr. Taylor, a Veterinary Surgeon, and in few days the Cracked heels got well. To prove the expense of bringing back the Horse, a Porter on the York and Newcastle Railway was called, who, in De- cember, saw the Horse at the Railway Station, and received the fare for him from the plaintiff. On the part of the defendant witnesses were called to prove the antecedent History of the Horse, and to show that he never had inflammation before sale, but only a Sandcrack {k), which had been burnt and cured. It was also proved that the Horse, when in the plaintiff's possession, had been hard driven by a servant, and that the Horse and gig had rolled down a bank of eighteen feet, after which the Horse could hardly walk home ; it had been found necessary to bleed him, and the defendant's case was that there had been a metastasis of the inflammation from the viscera to the feet Mr. Taylor, a Veterinary Surgeon, examined the Horse at Nottingham on the 10th of November; he then was lame in both feet, the sole was flat and partially convex, and decidedly unsound. The feet had all the appearance of Laminitis {I) having existed for some time, which had produced an altera- tion in the shape of the foot. The Coronary Ring was con- tracted, which is a symptom oi Laminitis{l). It generally makes a Horse put his heels first to the ground, and go short. The witness gave a Certificate of unsoundness. On cross- examination the witness stated that a Horse might so far re- cover as to ordinary observation to appear sound, but that the lameness would return when he was put to the ordinary work. ( Alderson, B. : It must be ordinary work, because more than ordinary would not be fair.) The Horse was sent for to be inspected, and the Judge allowed the Jury to go out and see him. In summing up, Alderson, B., said to the Jury — " The plaintiff must make out the Horse unsound on the 29th of August, namely, at the time of sale. The only doubt is on the second issue ; if the plaintiff leaves it in doubt, the verdict must be for the defendant Where a person seeks to show that an unsound Horse has been sold to him, he should give notice pretty soon. Here it was not from August till No- vember, and the examination was made in December. You must be certain that this disease had it origin as a formed disease at the time of sale. It is unfair for a party if he has no Notice ; therefore a case should be very clearly proved. There may be a metastasis or change of position, either in the human frame or in that of animals. If you find for the plain- (k) Sandcrack, ante. (l) See Laminitis and Pumiced Feet, ante. UNREPORTED CASES. 343 tiff, you must give the difference between the value of the Horse when sold and when returned. How much worse was he for the disease ? If the plaintiff has improvidently sold him, the defendant is not to suffer. You must add 3/. 195., the cost of bringing him back from Nottingham." The Jury found a verdict for the defendant riding. Regina v. Cook. Before Mr. Baron Alder son, Liverpool Spring Assizes, 1847. The Prisoner was indicted for Manslaughter in having fu- ^^"°J^^ riously ridden over and killed a person on the road. Alderson, B., in summing up, said to the Jury — " The Prisoner is indicted for Manslaughter; are you satisfied that his act and his negligence caused death ? If a man runs against another with a Horse at an improper pace and so causes his death, it is Manslaughter ; if it is reckless, it is Murder. In the same way as it has been held where bricks were thrown from the top of a House into a thoroughfare, and killed a per- son ; if a man rides recklessly a wild Horse into a crowd and kills a person, it will be Murder. If he has not used the caution or care of a reasonable man it will be Manslaughter." " It is a serious question whether a drunken man riding a Horse and killing another is not guilty of Manslaughter. Had the Prisoner in this case, by his previous acts, incapacitated himself from taking care of the Horse, or by his own conduct made it unmanageable ?" " If the accident arose from the Horse's bad temper, the Prisoner's conduct not contributing to the accident, the Pri- soner must be acquitted." The Jury acquitted the Prisoner. Matthews v. Parker. Before Mr. Justice Maule, Gloucester Spring Assizes, April Sth, 1847. Godson, Q. C, and Cripps, for the plaintiff. Whately, Q. C., and Cooke, for the defendant. This was an action on the Warranty of a Horse. It appeared Navicular that in May, 1846, the plaintiff bought at Stow Fair of the ^sease. defendant a bay Horse warranted sound. On the day after its arrival at Cirencester, where the plaintiff resided, it exhibited symptoms of lameness, which increased till the 23rd of June, when it was examined by an experienced Veterinary Surgeon, 344 APPENDIX. I who pronounced it to have Navivular disease {m) in both the fore feet, of which fact the defendant had Notice. The Horse was sold by auction as a lame Horse, and bought by the defendant, who was in the habit of attending Cirencester Market. For the defendant witnesses were called to prove that the Horse was sound, and could therefore never have had the Navicular disease (m), as it is incurable. It transpired during the trial that the defendant was a member of a Horsedealer's club in London, the funds of which were devoted to pay the expenses of trials. The Jury found a verdict for the plaintiff. Atkinson v. Hoeridge. Before Mr. Justice Coltman, Chester Spring Jssizes, April 9th, 1847. Townsend and Egerton, for the plaintiff. Chilton, Q. C, and Welshy, for the defendant. Thick-wind. This was an action of Assumpsit on the Warranty of a Horse. Pleas, 1st. Non assumpsit. 2nd. Traverse of the unsoundness. It appeared that the plaintiff was a gentleman living at Leeds, and the defendant a gentleman well known in the Cheshire Hunt, At Chester October Races, the defendant's Horse Paragon was standing at the Albion Hotel, at the price of 150 guineas, and another Horse at 60 guineas. The plain- tiff bought them for 210/. Paragon was warranted, but the other was not. The plaintiff's groom fetched the Horses to Leeds, where they arrived on the 5th of October. At the end of a canter next morning the groom detected that the Horse breathed thick. The plaintiff immediately submitted the Horse to Mr. Yates, a Veterinary Surgeon, who pronounced the Horse to be suffering from a Chronic affection, arising from a Thickening of tlie mticous membrane {n), which was in- curable and an unsoundness, although it would not prevent the Horse being hunted. The plaintiff then wrote to the de- fendant inclosing Mr. Yates's Certificate, and stating that he would send the Horse to Manchester to meet his groom on any day he might appoint. No reply was received ; and the plaintiff wrote a second letter again requesting that the groom might be sent to Manchester. The defendant wrote that he had submitted the Certificate to a competent surgeon and a {m) Navicular Joint Dis- (w) See Thick-wind, ante. ease, ante. UNREPORTED CASES. 345 good sportsman, who said that no specific unsoundness had been alleged. He oftcred to refer the matter to a sportsman and a gentleman. The plaintiff submitted the Horse to other Veterinary Surgeons, who confirmed the opinion of Mr. Yates, and certified that he had a Chronic disease in the air passages, constituting Thick breathing (o). This Certificate was also forwarded to the defendant Some additional correspondence then took place, and at last the Horse was sold for 56L, which sum was reduced by expenses to 48^., and it was for the dif- ference between this sum and the purchase-money that the action was brought. The defendant called several Veterinary Surgeons, but the Jury fovind for the plaintiff, 101/. 5s. damages. On the first day of the Easter Term following, Chilton, Q. C, moved for a new trial, on the ground that the verdict was against evidence, and also that the Horse, though Thick ivinded{o), was not unsound; as the celebrated Horse Eclipse was known to be Thick ivinded{o), though the Veterinary Sur- geons called by the plaintiff professed themselves ignorant of such having been the fact. Lord Denmax, C. J. — " We will see the learned Judge on the subject." Crockford v. Lord Maidstone. Before the Court of Exchequer (Sittings in Banco), May 7th, 1847. Humfrey for the plaintiff. E. James for the defendant. This was an action brought by the widow of the late Mr. A Common Crockford to recover the price of some dinners supplied to the Gaming defendant from Crockford's Club at his lodgings in Bolton Street, for some suppers in the Club House, and for two years' subscription to it at ten guineas a year. The defendant paid into Court the price of the dinners supplied in Bolton Sti-eet, and to the residue pleaded that the plaintiff kept a Common Gaming House, and let him have the use of it to the end that he might be enabled to play at certain unlawful games, and that he did accordingly play. The case was tried before the Lord Chief Baron at the sit- tings after Michaelmas Term, when his Lordship, in summing up, said to the Jury, " That although money lost at play in a Common Gaming House was not recoverable at law, still the common law of the land did not make it illegal to play at Whist, Chess or any other Game ; and in this case there was (o) See Thick-wind, ante. q5 346 APPENDIX. not a tittle of evidence to show that the Club kept by the late Mr. Crockford was a Common Gaming House. That, how- ever, was a question for them to decide. If they decided that it was not a Common Gaming House, then they would give a verdict for the plaintiff, provided they were satisfied the money was due." The Jury found a verdict for the plaintiff. A rule nisi for a new Trial was subsequently obtained, on the ground of misdirection, in consequence of the Lord Chief Baron having told the Jury, that there was no evidence that the Club was a Common Gaming House. It was contended for the defendant, that as Hazard, which is an illegal Game (73), was played in the House, it was there- fore a Common Gaming House. The Court, however, seemed to be of opinion, that as there was no evidence that the defendant was admitted into the Club /or the purpose of engaging in unlawful Games, or that he had joined in them, and that as a subscription was required, which excluded all but elected members of the Club, it could not be said to be a Common Gaming House. The case, however, was settled without any formal decision on the subject. Smart v. Allison. Before Lord Chief Justice Wilde, Guildhall, December 17 th, 1847. Cockburn, Q. C, James and Bramwell, for the plaintiff. Knowles, Q. C, and Addison, for the defendant. Alteration of This was an action brought to recover damages for the th"^^^^^?^ ^^ alleged breach by the defendant of a written Warranty given by him on the sale to the plaintiff of a Black Gelding for 150/., which Warranty stated that the Horse was " warranted sound and free from vice," and was dated November 23rd, 1846. It appeared that the plaintiff and defendant were both Horsedealers, the former residing at Cricklade, in Wiltshire, and the latter near Darlington. On the 22nd of September, 1846, the servant of the plaintiff being at Howden Fair, for the purpose of purchasing Horses, saw there the Black Gelding in question, and, after some bargaining, bought him for 150i, upon the defendant's giving the above-mentioned written War- ranty. Before the completion of this bargain it was proved by the servant himself, that he observed to the defendant that the fore feet of the Horse presented appearances very like those (j)) See Hazard, ante. UNREPORTED CASES. consequent on fever, although when trotted and cantered on soft ground he showed no symptoms of lameness. From Howden the animal was taken by railway to the plaintiff's residence, where he remained for about ten days, during which time nothing more was done with him than merely to give him a little physic and moderate exercise in a neighbouring pad- dock. At the end of that time he was sold by the plaintiff to a Mr. Hardy, who resided in Warwickshire, for 200/., with a Warranty of soundness. That gentleman had the Horse taken safely home, and kept for about a month on gentle daily exer- cise. At the end of that time the Horse, on being one day trotted on hard ground, was for the first time found to go lame. A Veterinary Surgeon's opinion was then taken, and he declared the Horse to be unsound from disease in the hoof, produced by previous acute fever, and thereupon the Horse was, with his Certificate, returned to plaintiff, who paid back to Mr. Hardy the 200/. purchase-money. On the 6th of November, 1846, the defendant was made aware by letter of what had taken place, and called upon to receive back the Horse, other- wise he would be sold by auction, and the defendant held responsible for any difference in price. At first the defendant did not reply, but at length he wrote to regret what had hap- pened, and to say that the Horse had been in his possession since he was two years old, and never had been lame except for a day from a thorn picked up when hunting, and that he had had no disease at all whilst in his possession. The de- fendant declining to take back the Horse, he was ultimately sold at Dickson's Repository for 50/. 13s. 6d. net, and for the difference between that sum and his cost price the present action was brought. To prove the alleged unsoundness a number of Veterinary Surgeons were examined, and the substance of their evidence was, that, judging from the flatness of the Horse's soles, and the sunken and ribbed appearance of the wall of the hoof of both the fore feet, they were affected by disease, the off one being the most so of the two. That the disease. Chronic Lami- nitis, consisted of a partial destruction by acute inflammation of the lamince of the foot, being that internal substance which connected the sensitive parts with the insensitive horny co- vering ; and there was a consequent unnatural pressure down- wards of the coffin bone, which in time caused the sole of the hoof to become flat. This disease they also proved rendered the Horse decidedly unsound and liable to frequent attacks of lameness, and must have existed for some considerable time, eight or ten months ; and they added, that, as previous acute inflammation was the original cause of the disease, the Horse must have shown lameness before, and to such an extent as to be at once perceived. The further evidence was that of four or five Horsedealers, of whom the two first proved that whilst 348 APPENDIX. 1 on different occasions looking at the Horse, with the object of purchasing him before he was sold to the plaintiff, each ob- served particularly to the defendant the appearance of his fore feet, upon which the defendant said to one of them that the Horse had never been lame except once, when he had the fever in his feet. Two other witnesses then proved that in 1845 the same Horse had been sold to one of them with a Warranty of soundness, and that when the other went to re- ceive him at a place about twenty-two miles distant from the plaintiff's residence, he found the Horse quite lame, and refused to accept him ; and the result was, that the Horse was taken back to the defendant's, and an end put to the purchase. The case for the defendant rested on the ground that the Horse had been in his possession since he was two years old, and never had any such disease as that stated by the plain- tiff's witnesses; that his feet had always remained of the same appearance from birth, and that the Horse had never been lame with him but once from the prick of a thorn. To make out this defence the person who bred the Horse was called, and he said that at eighteen months old the Horse got two prizes as being well formed ; that he had good strong feet when the defendant purchased him at two years old, in 1842; and in 1844, when the witness again saw him, his feet had not been altered by any disease. The next witness was the Groom of the defendant in whose care the Horse had always been, and he said the Horse was rather flat-footed, and his hoof was a little ribbed outside and sunk. He had, however, always been so, and had never had fever in his feet or any other disease, or shown any lameness except on the occasion when he was proved to have been first returned, and then only, as was at the time discovered, from the effects of a thorn, which was perfectly cured in a few days. The Horse had been hunted frequently before the defendant sold him, as also after having lately come back into the defendant's pos- session, without exhibiting any lameness whatever. This witness also stated, that although in the defendant's yard on the occasion alluded to by some of the plaintiff's witnesses, he had never heard the defendant say to any one that the Horse had had fever in his feet, or talk particularly about the Horse's feet. Other witnesses were called to prove that no alteration from disease had taken place in the Horse's feet, and that, though often seen out, the Horse had never been observed lame, one of the witnesses who proved this latter circumstance being the son of the party who purchased the Horse at Dickson's. The Lord Chief Justice left it to the Jury to say whether or not, when the Horse was sold to the plaintiff, the structure of his feet had been altered by disease to such an extent as to UNREPORTED CASES. 349 cause lameness, and render him unfit for ordinary purposes. If they thought such had been the case, then they ought to find for the plaintiff, but if otherwise then for the defendant. The amount of damage, if any, should be the difference be- tween the cost price to the plaintiff and that for which the Horse was sold. The Jury found a verdict for the plaintiff. Damages, 99/. 6s. 6d. Hyde v. Datis. Before Mr. Justice Coleridge, Liverpool Spring Assizes, March 2^th, 1849. WilMns, Serjt and Aspinall, for the plaintiff. Martin, Q. C. and Atkinson, for the defendant This was an action on the warranty of a Horse. Disease of The plaintiff and defendant were both Horsedealers, the ^^^ Lungs, plaintiff carrying on business in Liverpool, and the defendant at Stratton-on- Harrow, in Herefordshire. On the 23rd of August, 1848, the plaintiff purchased a young Chesnut Gelding of the defendant for 62/., with the following warranty: " This is to certify that I have this day sold to Mr. James Hyde, Horsedealer, a Chesnut Gelding ; the said Gelding I warrant sound, free from vice, steady in harness, no crib-biter, and no wind-sucker." Next day the Horse was sent to Liverpool, and appeared to have a little Cough. On being put into the plaintiff's stables the Horse looked depressed, and his Cough continued. It was then found that he had a sore throat, and it being supposed that he had taken cold he was treated accordingly, and had some stimulating application given to him for his throat, after which he seemed better. The Horse was afterwards, on the 22nd of September, sold at Howden Fair, to Mr. Widdows, Veterinary Surgeon, who took him to Bristol, where he died oa the 12th of October. After death there was a post mortem examination of the Horse, and his Lungs were found to be extensively diseased, to be full of tubercles, and of the substance of liver. The Liver was also double its proper size. The Veterinary Surgeons called in were of opinion, and gave evidence to the effect, that the Horse died from Disease of the Lungs, and that the disease was of long standing, and that a Horse having such a disease was not sound. For the defendant it was contended that the Horse was sound when sold ; that he had been bred by a farmer, who sold him to the defendant; that the Horse had never done any work, and was five years old. That the greatest care had 350 APPENDIX. I I been taken of him, as he had been bred to sell; that the cause of his death was sudden inflammation from a cold caught after he had been sold, when travelling to and from Fairs. To prove this several Veterinary Surgeons of eminence were called, and among them Professor Dick, of the Veterinary College, Edinburgh, founded by him in 1817, who gave evi- dence to the following effect: — That Disease in the Lungs had frequently come under his notice, as it frequently happens in Horses ; the ordinary causes being changes of tempera- ture, particularly a transition from cool air to a close confined stable, and more especially during the prevalence of particular winds. The disease is usually ascertained by a Cough, there being commonly a slight shivering. It always affects the skin more or less, the coat stares, the animal seems unthrifty, and is never in sleek condition. The breathing and pulse are always more or less affected. The Lungs become liverlike, and have tubei'cles and abscesses, which run into one another and are two different stages. When the Liings are much dis- eased or hepatized, there is an interruption of blood and consequent enlargement of the Liver. Hepatization takes place very rapidly in the Lungs, in consequence of their extreme vascularity. It seldom happens that both Lungs are equally affected. When inflammation has taken place suf- ficiently to produce hepatization, there is an invariable ten- dency to produce tubercles and abscesses. Then the disease commonly runs its course from ten days to a fortnight, de- pending in some measure upon the treatment If he had found the Lungs hepatized with tubercles and abscesses, and the Liver double its weight, containing cheesy matter, he should have said it had lasted for a week. He had however met with many cases of tubercles, abscesses and hepatization, which must have lasted longer. He had known a Liver enlarged twice its natural dimensions in less than a week. This arises from distension with blood. He should expect the Liver to be congested. If it was very pale the complaint must have been chronic. Purging cairied to excess increases inflammation of the Lungs. The functions of the Liver is to separate the bile from the blood. He should expect to find irritation of the bowels when the Liver is enlarged. The Liver in this case weighed 32 lbs. instead of 15 lbs. The dis- ease is like a galloping consumption in a human being. In answer to a question put by the learned Judge the witness said, — " I consider the disease in the Lungs began within a fortnight of his death, but that there had been a Catarrh from the time the man led him home." Mr. Justice Coleridge told the Jury that the question they had to consider was, had the Horse the seeds of the dis- ease on the 23rd of August? The plaintiff must make out this proposition. The defendant maintained that the Horse UNREPORTED CASES. 351 was sound at the time of delivery. The Horse had been sold a short time before his death, and both the plaintiff and the buyer had been taken in. The Jury found a verdict for the plaintiff, Damages 621. * Elvin V. Chapman. Before Lord Campbell, C. J., Norwich Spring Assizes, 1853. O'Malley, Q. C. and Evans, for the plaintiff. Prendergast, Q. C. and Bulwer, for the defendant. This was an action on the Case for damage sustained by the Negligent plaintiff, in consequence of being thrown out of his cart by ^"^^"^ ^" *^® a collision occasioned by the negligent driving of the defend- ant's son. The plaintiff was a small tradesman living at Marsham, a village between Aylsham and Norwich, to and from which city a coach runs daily, the defendant being its owner, and his son the driver. On the 7th of February the plaintiff was driving home in his Pony cart from Aylsham in the evening, when as he approached the last gas-lamp he was suddenly apprised by a friend, to whom he was giving a lift, of the approach of the coach on its wrong side and without lamps. The plaintiff stated that he called out and drew up to the wall on his proper side to avoid the coach, but the coachman seemed to be ignorant of, or indifferent to, the call, and drove on till the splinter-bar struck the cart-wheel with such violence as to force the cart against the wall and project the plaintiff from his seat to the road, when he received such injuries as " unsensed him" and rendered it necessary that he should be taken to a neighbouring Chymist From that time to the present the plaintiff had continued to suffer much from lame- ness, caused by the fall, and his business had diminished through his inability to attend to it as heretofore. It further appeared that when the accident occurred the defendant's son laid the blame on the improper site chosen for the gas-lamp by the authorities, and that the defendant, on being applied to for compensation by the plaintiff, offered to repair the cart, but refused to pay anything for the personal injury received by the plaintiff. For the defendant witnesses were called to prove that the coach was going at its usual pace into Aylsham, and that the gas-lamp was so improperly placed as to prevent any one from seeing beyond it, and that the coach had just passed it when a shout arose, which was immediately followed by a collision, the coach being then somewhere about the middle of the road. That the driver was a very steady man, and that 352 APPENDIX. in consequence of this accident the lamp had been removed to a more suitable site ; and that every attention was paid by the driver to the plaintiff. The Jury found a verdict for the plaintiff^ Damages 30^. ' BowDEN 27. Sherman. Before Lord Campbell, C. J., Guildhall, July 2, 1853. James, Q. C. and Phinn, for the plaintiff. Wilkins, Serjt. and Willes, for the defendant Negligent This was an action on the Case to recover compensation for driving^at a injuries sustained by the plaintiff by reason of the negligent "' driving of the defendant's Servant. It appeared that about two o'clock in the afternoon of the 22nd of October the plaintiff, who was sixty years of age, was in the Hampstead Road, near Southampton Street It was raining at the time, and she had her umbrella up. According to her statement, she looked up Southampton Street, and see- ing nothing coming, she proceeded to cross the street, but while doing so she was knocked down by the shaft of a Cart driven by one of the defendant's Servants. The defendant was a carrier, but he had, in fact, sold his carrying business to the Great Western Railway Company. The driver was not by the side of his Horse, but was in the Cart, driving the Horse with reins. The plaintiff was immediately assisted by the bystanders, and carried into the surgery of a neighbouring surgeon, where she was attended to. She was then taken home, and confined to her bed for six weeks. During this time she suffered great pain from the laceration of the muscles of the leg and the injury done to the arteries. For the defendant witnesses were called to prove, that the driver was a careful and experienced man; that he was going at the time at a rate of only about four or five miles an hour; and that he called out to the plaintiff, but that she, instead of paying attention, ran against the shaft and was knocked down. It also appeared that there was a descent in that part of South- ampton Street, which, it was suggested, had accelerated the pace of the Horse and rendered it more difficult to pull up. The Jury found a verdict for the plaintiff. Damages loOi Lord Campbell said, now that the case was over, he thought it right to say that these vehicles ought not to go at the pace they did, especially when turning the corners of streets. It was impossible to go along the streets without seeing her Majesty's subjects in imminent peril. Only a short time ago Mr. Commissioner Phillips had met with a very similar accident, which was near proving fatal. It was not UNREPORTED CASES. 353 enough to shout out, which might have the effect of depriving a person of presence of mind ; but these vehicles ought to go at a reasonable pace, particularly when turning corners. Hadland v. Price. Before Lord Campbell, C. J., Queen's Bench Sittings, November 29, 1853. E. James, Q. C. and Petersdorff, for the Plaintiff. O'Malley, Q. C. and Power, for the Defendant. This action was brought to recover the value of a Racehorse a " Selling named Economy, and also money lent by the plaintiff to the Race." defendant. The defendant pleaded the general issue to both counts, and, as to the count upon the Horse, he also pleaded that it was not the plaintiff's Horse. It appeared that the plaintiff and defendant attended Ro- chester and Chatham Races, where a Race was run called a " Selling" Race. This was explained to mean a Race for which Horses were entered upon the terms that the Horse which won the Race was to be sold by auction to the highest bidder, but the owner was to receive only the price which he had put upon the Horse when it was entered, the balance going to the Race-fund. Horses thus entered were weighted accord- ing to the amount put upon them, those of the highest price carrying the greatest weight. At the last Chatham Races the Horse Economy won the Speculation Plate, and was afterwards sold by auction at the winning-post for 65 guineas. The ques- tion now was whether the plaintiff or the defendant was the purchaser. According to the evidence given by the plaintiff and Man- ning, the Clerk of the Newmarket Jockey Club, who was standing by the Auctioneer, the Horse was knocked down to the plaintiff. The plaintiff then discovered that he had only 4t5/, in his pocket, and, not wishing it to be known that he was the purchaser, he borrowed 23/. 5s. of the defendant, and giving him the 45/., got him to pay for the Horse, and to take a receipt for the price in his name. According to the plain- tiff's evidence, the defendant, when he had thus got the Horse, refused to give it up to the plaintiff unless he would pay him i 51. for his trouble ; but the plaintiff refused to give him more than half-a-sovereign. The defendant then kept the Horse. The next day the plaintiff again went down to Chatham, and then found that the Horse Economy had been entered for the West Kent Stakes in the name of a person named Hitchin. The plaintiff protested against this, and claimed his Horse, but it was allowed to run, and won the stakes, valued at 50/., 354 APPENDIX. i and was again sold the same day for an increased price. Evi- dence was also given to show that the defendant, on the day of the first sale, admitted the plaintiff had bought the Horse, but stated that he (the defendant) had got an offer of 15/. for the bargain, and that if the plaintiff would not give him 51. he would stick to the Horse. The defendant sold the Horse the same day. For the defence, the defendant himself came into the witness box and said that he had several times bid for the Horse, and that it was at last knocked down to him. He stated that, though he had a cheque for a considerable amount in his pocket at the time, he had only 231. 5s. in cash, and that he borrowed the sum of 4:51. from the plaintiff to make up the amount re- quired. He offered to return the borrowed money the same evening, but the plaintiff refused to accept it, alleging that he was the purchaser. The Auctioneer who sold the Horse was called, and he deposed that the defendant was the pur- chaser; but it appeared there was a large concomse of people, and considerable confusion at the time of the sale. The Jury found a verdict for the plaintiff. Damages, 100 Guineas, reduced by the set-off to 82Z. Horse damaged by negligent driving. Percival v. Dudgeon. Before Lord Chief Baron Pollock, Exchequer, N. P., December 7 th, 1853. Macaulay, Q. C, and WiUes, appeared for the plaintiff. Keating, Q. C, and Honeyman, for the defendant. The plaintiff in this case was a Horsedealer and Riding Master carrying on business in London and Brighton, and this was an action to recover the value of a Horse described as a "a very quiet, beautiful, park-like, Arab-bred Gelding," which had been injured through the alleged negligent driving of the defendant's coachman in June. It appeared that this animal had been purchased in the previous April by the plain- tiff for 251, and that just before June the Horse had improved so much that the plaintiff asked 70 guineas, and refused 50 guineas for him. On the day in question the plaintiff's fore- man was riding the Horse to Lincoln's Inn Fields, and was standing still in the gutter at the corner of Cranbourn Street and St Martin's Lane, waiting an opportunity to pass through the throng of carriages at the entrance of Long Acre, when the carriage of the defendant dashed out of the rank to pass the carriages before him, and, in passing the Horse, struck him violently on the off hock. The effect of this blow was to throw the animal on the foot pavement, where he struggl d UNREPORTED CASES. 355 violently to keep his feet, and in so doing strained his back to such an extent that after a month's fruitless doctoring, at an expense of 16/. IO5., it was deemed advisable to send him to the hammer at Aldridge's, where he fetched 14| guineas. This account of the collision was supported by the evidence of the rider and three spectators, but was entirely contradicted by the coachman of the defendant and other spectators, the effect of whose evidence went to show that the Horse was jumping about, and never was struck by the carriage at all, but got on the pavement entirely in consequence of the rider having spvured him as the carriage was passing. The Jury found a verdict for the plaintiff. Damages, 48/. 85. 9d., exclusive of the sum realized on the sale of the Horse. 4*' 356 APPENDIX. I PART 11. STATUTES. The penalty lor mainte- nance of a ]i.')use for un- lawful games, The penalty for resorting to a house of unlawful games. Magistrates may repress unlawful games and punish of- fenders. 33 Henry VIII. Cap. 9. The Bill for the maintaining Artillery, and the Debar- ring of Unlawful Games. Sect. 11. Be it enacted, That no manner of person or per- sons, of what degree, quality or condition soever he or they be, from the Feast of the Nativity of St. John Baptist now next coming, by himself, factor, deputy, servant or other person, shall for his or their gain, lucre or living, keep, have, hold, occupy, exercise or maintain, any common house, alley or place (a) of dicing, table, or carding, or any other manner of game prohibited by any estatute heretofore made, or any un- lawful new game now invented or made, or any other new unlawful game hereafter to be invented, found, had or made, upon pain to forfeit and pay for every day keeping, having or maintaining, or suffering any such game to be had, kept, executed, played or maintained within any such house, gar- den, alley or other place, contrary to the form and effect of this estatute, forty shillings. 1 2. And also every person using and haunting any of the said houses and plays, and there playing, to forfeit for every time so doing, six shillings and eight-pence, 14, Be it further enacted, That it shall be lawful to all and every the justices of peace in every shire, mayors, sheriffs, bailiffs and other head officers within every city, town and borough within this realm, from time to time, as well within liberties as without, as need and case shall require, to come, enter and resort into, all and every houses, places and alleys where such games shall be suspected to be holden, exercised, used or occupied, contrary to the form of this estatute ; and as well the keepers of the same, as also the persons there (a) Keeping a Cock-pit is within this statute; Dalton, c. 46. STATUTES. 357 haunting, resorting and playing, to take, arrest and imprison, and them so taken and arrested to keep in prison unto such time as the keepers and maintainers of the said plays and games have found sureties to the king's use, to be bound by recognizance or otherwise, no longer to use, keep or occupy any such house, play, game, alley or place (6); and also that Further pro- the persons there so found be in like case bound by them- [jj^jng hereto selves, or else with sureties, by the discretions of the justices, 2 Geo. 2, mayors, sheriffs, bailiffs or other head officers, no more to play, c. 28, s. 9. haunt or exercise from thenceforth in, at or to any other of the said places, or at any of the said games. 16. Be it also enacted by the authority aforesaid. That no Persons pro- manner of artificer or craftsman of any handicraft or occupa- ^jbited to tion, husbandman, apprentice, labourer, servant at husbandry, fawfui ^^iies journeyman or servant of artificer, mariners, fishermen, water- out of Christ- men or any serving-man, shall firom the said feast of the Nati- n^as (c). vity of St. John Baptist, play at the tables, dice, cards, or any other unlawful game, out of Christmas, under the pain of twenty shillings, to be forfeit for every time ; and that all justices of peace, mayors, bailiffs, sheriffs and all other head officers, and every of them, finding or knowing any manner of person or persons using or exercising any unlawful games, contrary to this present statute, shall have full power and authority to commit every such offender to ward, there to remain without bail or mainprise until such time that they so offending be bounden by obligation to the king's use in such sums of money as by the discretions of the said justices, mayors, bailiffs or other head officers shall be thought reasonable, that they or any of them shall not fi-om henceforth use such unlawful games. 17. Be it further enacted by the authority aforesaid, That All other sta- all other statutes made for the restraint of unlawful games, or *"^^^ '"^'^^ for the maintenance of artillery, as touching the penalties or lawful o-ames forfeitures of the same, shall be from henceforth utterly void ; and for the and that all informations, plaints, actions or suits that shall maintenance be taken or sued upon any part of this statute, shall be com- reTCaled^'^ ' menced within the year after the offence committed and done, or otherwise no advantage or suit thereof to be taken. 18. And where any such forfeitures shall happen to be found Within what within the precinct of any franchise, leet or lavvday, then the ^JJ^^ be^pro ^"^ lord of the same franchise, leet or lawday to have the one secuted upon moiety thereof, and the other moiety thereof to any of the this statute, king's subjects that will sue for the same in any of the king's andwhoshall courts, by action, information, bill or otherwise, in which ac- feitures. tion or suit the defendant shall not be admitted to wage his law, nor any protection nor essoin shall be allowed ; and where (b) For further provisions, pendix. see 2 Geo. 2, c. 28, s. 9, Ap- (c) 1 Lutw. 1. 358 APPENDIX. Proclamation of this sta- tute. Leases of houses where unlawful games be used. such forfeiture shall he found out of the precinct of any fran- chise, leet or lawday, that the moiety of all such forfeitures shall be to the king our sovereign lord, and the other moiety thereof to any the king's subjects that will sue for the same by bill, plaint, action, information or otherwise, in any of the king's courts, in which suit or action the defendant shall not be admitted to wage his law, nor any protection or essoin shall be allowed. 19. And to the intent that every person may have know- ledge of this act, and avoid the danger and penalties of the same, be it enacted by the authority aforesaid. That all mayors, bailiffs, sheriffs and all other head officers shall four times in the year, that is to say, every quarter once, make open pro- clamation of this present act in every market to be holden within their several jurisdictions and authorities. 20. And also that the justices of gaol delivery, assizes and justices of peace, do cause the same to be proclaimed in their several circuits and sessions before them holden, and that this statute shall begin to take his effect concerning the penalties of the same from the said feast of St. John Baptist now next coming, and to continue and endure for ever. 21. Provided always, and be it enacted by the authority aforesaid. That if any person or persons have taken by lease, whether it be by word, writing or otherwise, any house, alley or place wherein any such unlawful game new is, and at the time of such lease made was used, that then every such lease shall, at the liberty of him or them to whom such lease is made, their executors, administrators or assigns, from the said feast of the Nativity of St. John Baptist, be utterly void except it be for breach of covenants or agreements, or payment of rent due or to be due at the said feast, at any time before, so that then at the same feast, or within one month next after the same, the said lessee give knowledge to such lessor or lessors, their heirs and assigns, that he will no longer occupy the same, and that then it shall be lawful to the inheritor, lessor or owner thereof, or to his heirs and assigns, in the same house, alley or place to re-enter. 2 & 3 Philip and Mary, Cap. 7. An Act against the Buying of Stolen Horses. 11 Hen. 7, *' Forasmuch as stolen horses, mares and geldings, by thieves ?• 13. and their confederates, be for the most parts sold, exchanged, visionrre-^ given or put away in houses, stables, back-sides and other lating hereto, secret and privy places of markets and fairs, and the toll also 31 Eliz. c. 12. privily paid for the same, whereby the true owners thereof STATUTES. 359 being not able to try the falsehood and covin betwixt the buyer and seller of such horse, mare or gelding, is by the common law of this realm without remedy : " 2. Be it therefore enacted by the authority of this present In what man- parliament, That the owner, governor, ruler, fermor, steward, "1^^!^?^^*^^,^ bailiff or chief keeper of every fair and market overt within j,^ f^jj.g ^^ this realm, and other the queen's dominions, shall before the markets. feast of Easter next, and so yearly, appoint and limit out a The former certain and special open place within the town, place, field or misuse in circuit where horses, mares, geldings and colts have been and sale of stolen shall be used to be sold in any fair or market overt; in which said certain and open place as is aforesaid there shall be by ^ place shall the said ruler or keeper of the said fair or market, put in and f^j. a horse appointed one sufficient person or more to take toll and keep fair and also the same place from ten of the clock before noon until sunset a toll taker, of every day of the foresaid fair and market, upon pain to lose When, where, and forfeit for every default forty shillings : And that every f^^^^ whom toll-gatherer, his deputy or deputies, shall, during the time of ^^^^ jjg every the said fairs and markets, take their due and lawful tolls taken. for every such horse, mare, gelding or colt at the said open place to be appointed as is aforesaid, and betwixt the hours of ten of the clock in the morning and sunset of the same day, if it be tendered, and not at any other time or place ; and shall have presently before him or them, at the taking of the same toll, the parties to the bargain, exchange, gift, contract or putting away of every such horse, mare, gelding or colt ; and also the same horse, mare, gelding and colt so sold, exchanged or put away ; and shall then write or cause to be written in a book to be kept for that purpose, the names, surnames and dwelling-places of all the said parties, and the colour, with one special mark at the least of every such horse, mare, geld- ing and colt, on pain to forfeit at and for every default contrary to the tenor thereof, forty shillings. 3. And the said toll-gatherer or keeper of the said book ^ "^te of all shall within one day next after every such fair or market bring j^ a^fair^or and deliver his said book to the owner, governor, ruler, market, steward, bailiff or chief keeper of the said fair or market, who shall then cause a note to be made of the true number of all horses, mares, geldings and colts sold at the said market or fair, and shall there subscribe his name, or set his mark thereunto ; upon pain to him that shall make default therein, to lose and forfeit for every default forty shillings, and also answer the party grieved by reason of the same his negligence in every behalf. 4. And be it further enacted by the authority aforesaid, The using of That the sale, gift, exchange or putting away after the last jj^ ^ f^ir, or, day of February now next coming, in any fair or market &c. before overt, of any horse, mare, gelding or colt that is or shall be ^^^ owner's thievishly stolen or feloniously taken away from any person ^e'uk^en* ^ away. 360 APPENDIX. i or persons, shall not alter, take away nor exchange the pro- perty of any person or persons to or from any such horse, mare, gelding or colt, unless the same horse, mare, gelding or colt shall be in the time of the said fair or market wherein the same shall be so sold, given, exchanged or put away, openly ridden, led, walked, driven or kept standing by the space of one hour together at the least, betwixt ten of the clock in the morning and the sun-setting, in the open place of the fair or market wherein horses are commonly used to be sold, and not within any house, yard, back-side or other privy or secret place, and unless all the parties to the bargain, con-«. tract, gift or exchange, present in the said fair or market, shall also come together and bring the horse, mare, gelding or colt so sold, exchanged, given or put away to the open place ap- pointed for the toll taker, or for the book keeper, where no toll is due, and there enter or cause to be entered their names and dwelling-places, in manner as is aforesaid, with the colour or colours, and one special mark at the least of every the same horses, mares, geldings or colts, in the toll taker's book, or in the keeper's book for that purpose where no toll is due, as is aforesaid, and also pay him their toll, if they ought to pay any ; and if not, then the buyer to give one penny for the entry of their names, and executing the other circum- stances afore rehearsed, to him that shall write the same in the said book. 5. And if any horse, mare, gelding or colt that is or shall be thievishly stolen or taken away, shall after the said last day of February next coming be sold, given, exchanged or put away, in any fair or market, and not used in all points according to the tenor and intent of this estatute, that then the owner of every such horse, mare, gelding or colt, shall and may by force of this estatute seize or take again the said horse, mare, gelding or colt, or have an action of Detinue or Replevin for the same ; any sale, gift, exchange or putting away of any such horse, mare, gelding or colt, other than according to this estatute, in anywise notwithstanding. 6. The one-half of all which forfeitures to be to the king and queen's majesties, her heirs and successors, and the other to him or them that will sue for the same before the justices of peace, or in any of the king's and queen's majesties ordinary courts of record, by bill, plaint, action of Debt or information, in which suits no protection, essoin or wager of law shall be allowed The justices 7. And be it enacted by the authority aforesaid, That the, of peace shall justices of peace of every place and county, as well within termin" the" liberties as without, shall have authority in their sessions, offences within the limits of their authority and commission, to inquire, aforesaid. hear and determine all offences against this estatute, as they may do any other matter triable before them. STATUTES. 361 8. Provided always, that in every such fair or market where The allow- any toll is nor shall be due ne leviable by reason of the free- ance of the dom, liberty or privilege of the said fair or market, the keeper j^ook^vhere^ or keepers of the book, touching the execution of this present no toll is due. act, shall take nor exact but one penny upon and for every contract for his labour in writing the entry concerning the premises, in manner and form as is before declared. 31 Eliz., Cap. 12. An Act to avoid Horse Stealing. " Whereas through most counties of this realm horse steal- ing is gi'own so common, as neither in pastures or closes, nor hardly in stables, the same are to be in safety from stealing, which ensueth by the ready buying of the same by horse- coursers and others, in some open fairs or markets far distant from the owner, and with such speed as the owner cannot by pursuit possibly help the same ; and sundry good ordinances have heretofore been made touching the manner of selling and tolling of horses, mares, geldings and colts in fairs and markets, which have not wrought so good effect for the re- pressing or avoiding of horse stealing as was expected :" 2. Now for a further remedy in that behalf, be it enacted ii Hen. 7, by the authority of this present parliament. That no person c. 13. after twenty days next after the end of this session of parlia- Sellers of ment, shall in any fair or market sell, give, exchange or put or markets away any horse, mare, gelding, colt or filly, unless the toll must be taker there, or (where no toll is paid) the book keeper, ^""^^'"^'^ *^^® bailiff or the chief officer of the same fair or market, shall g^j^g other and will take upon him perfect knowledge of the person that who will so shall sell or offer to sell, give or exchange any horse, mare, avouch the gelding, colt or filly, and of his true christian name, surname !haiibe n and place of dwelling or resiancy, and shall enter all the tered in the same his knowledge into a book there kept for sale of horses ; toll book, &c. or else that he so selling or offering to sell, give, exchange or ^^ ^ ^^^^- ^ put away any horse, mare, gelding, colt or filly, shall bring unto the toll taker or other officer aforesaid, of the same fair ^ sufficient or market, one sufficient and credible person that can, shall person shall or will testify and declare unto and before such toll taker, avouch the book keeper or other officer, that he knoweth the party that horse seller. so selleth, givcth, exchangeth or putteth away such horse. The price of mare, gelding, colt or filly, and his true name, surname, ''l^^i!|'?'^^^ mystery and dwelling place, and there enter or cause to be tpj-g^j in jjjg entered in the book of the said toll taker or officer, as well toller's book, the true christian name, surname, mystery and place of dwell- ing or resiancy of him that so selleth, giveth, exchangeth or putteth away such horse, mare, gelding, colt or fiilv, as of him R 362 APPENDIX. A note in "writing shall be given to the buyer. The penalty of the person offending in any of the cases afore- said. Every sale otherwise made shall be void. that so shall testify or avouch his knowledge of the same per- son ; and shall also cause to be entered the very true price or value that he shall have for the same horse, mare, gelding, colt or filly so sold : And that no person shall take upon him to avouch, testify or declare that he knoweth the party that so shall off"er to sell, give, exchange or put avray any such horse, mare, gelding, colt or filly, unless he do indeed truly know the same party, and shall truly declare to the toll taker or other officer aforesaid, as well the christian name, surname, mystery and place of dwelling and resiancy of himself, as of him of and for whom he maketh such testimony and avouch- ment : And that no toll taker or other person keeping any book of entry of sales of horses in fairs or markets, shall take or receive any toll, or make entry of any sale, gift, exchange or putting away of any horse, mare, gelding, colt or filly, unless he knoweth the party that so selleth, giveth, exchangeth or putteth away any such horse, mare, gelding, colt or filly, and his true christian name, surname, mystery and place of his dwelling or resiancy, or the party that shall and will testify and avouch his knowledge of the same person so sell- ing, giving, exchanging or putting away such horse, mare, gelding, colt or filly, and his true christian name, surname, mystery and place of dwelling or resiancy, and shall make a perfect entry into the said book of such his knowledge of the person, and of the name, surname, mystery and place of the dwelling or resiancy of the same person, and also the true price or value that shall be bond fide taken or had for any such horse, mare, gelding, colt or filly so sold, given, ex- changed or put away, so far as he can understand the same, and then give to the party so buying or taking by gift, ex- change or otherwise, such horse, mare, gelding, colt or filly, requiring and paying two pence for the same, a true and per- fect note in writing of all the full contents of the same, sub- scribed with his hand ; on pain that every person that so shall sell, give, exchange or put away any horse, mare, gelding, colt or filly without being known to the toll taker or other ofticer aforesaid, or without bringing such a voucher or wit- ness, causing the same to be entered as aforesaid, and every person making any untrue testimony or avouchment in the behalf aforesaid, and every toll taker, book keeper or other officer of fair or market aforesaid, offending in the premises contrary to the true meaning aforesaid, shall forfeit for every such default the sum of Five pounds ; but also that every sale, gift, exchange or other putting away of any horse, mare, gelding, colt, filly, in fair or market, not used in all points according to the true meaning aforesaid shall be void ; the one-half of all which forfeitures to be to the queen's majesty, her heirs and successors, and the other half to him or them that will sue for the same before the justices of peace, or in any of her majesty's ordinary courts of record, by bill, plaint, STATUTES. 363 action of debt or information, in which no essoin or protection shall be allowed. 3. And be it further enacted, That the justices of peace of The justices everyplace and county, as well within liberties as without, of peace may shall have authority in their sessions, within the limits of ^^^^ and de- their authority and commission, to inquire, hear and deter- oflfences mine all offences against this statute, as they may do any aforesaid. other matter triable before them. 4. And be it further enacted, That if any horse, mare, gelding, colt or filly, after twenty days next ensuing the end of this session of parliament, shall be stolen, and after shall be sold in open fair or market, and the same sale shall be used in all points and circumstances as aforesaid, that yet nevertheless the sale of any such horse, mare, gelding, colt or filly, within six months next after the felony done, shall not take away the property of the owner from whom the same was stolen, so as claim be made within six months by the party from whom the same was stolen, or by his execvUors or admi- nistrators, or by any other by any of their appointment, at or in the town or parish where the same horse, mare, gelding, colt or filly shall be found, before the mayor or other head officer of the same town or parish, if the same horse, mare, gelding, colt or filly shall happen to be found in any town corporate or market town, or else before any justice of peace of that county near to the place where such horse, mare, geld- ing, colt or filly shall be found, if it be out of a town corporate or market town ; and so as proof be made within forty days then next ensuing by two sufficient witnesses, to be produced and deposed before such head officer or justice (who by virtue of this act shall have authority to minister an oath in that behalf) that the property of the same horse, mare, gelding, colt or filly so claimed was in the party by or from whom such claim is made, and was stolen from him within six months next before such claim of any such horse, gelding, mare, colt or filly ; but that the party from whom the said horse, mare, gelding, colt or filly was stolen, his executors or adminisfrators shall and may at all times after, notwithstanding any such sale or sales in any fair or open market thereof made, have pro- The owner perty and power to have, take again and enjoy the said horse, may redeem a mare, gelding, colt or filly upon payment or readiness, or fj-oTO^him^^ offer to pay, to the party that shall have the possession and within six interest of the same horse, mare, gelding, colt or filly, if he months after will receive and accept it, so much money as the same party Paying the shall depose and swear before such head officer or justice of peace (who by virtue of this act shall have authority to mi- nister and give an oath in that behalf) that he paid for the same bofid fide, without fraud or collusion ; any law, statute or other thing to the contrary thereof in anywise notwith- standing. r2 364 APPENDIX. Act 33 Hen. 8, c. 9, against un- lawful games made more effectual. 2 Geo. II. Cap. 28. An Act (among other things) for more effectual debarring of unlawful Games. 9. " And whereas a good and profitahle statute was made in the three-and-twentieth year of the reign of King Henry the Eighth, (among other things) for the debarring of unlawful games ; And whereas by the said statute no power is given unto the justices of the peace to demand and take from per- sons found playing contrary to law any other security than their own recognizances that they or any of them shall not from thenceforth use such unlawful games, unless such persons are found playing contrary to law upon the view of one or more justice or justices of the peace;" for remedy thereof, be it further enacted, that where it shall be proved upon the oath of two or more credible witnesses, before any justice or justices of the peace, as well as where such justice or justices shall find upon his or their own view that any per- son or persons have or hath used or exercised any unlawful game contrary to the said statute, the said justice or justices shall have full power and authority to commit all and every such offender and offenders to prison, without bail or main- prize, unless and until such offender and offenders shall enter into one or more recognizance or recognizances, with sure- ties or without, at the discretion of the said justice or justices of the peace, that he or they respectively shall not thenceforth play at or use such unlawful game. 12 Geo. II. Cap. 28. An Act for the more effectual preventing of excessive and deceitful Gaming. " And whereas it is found by experience that the said good and wholesome laws have not effectually answered the good ends, intents and purposes in and by the said acf&{d) de- signed ; but that, contrary to the true intent and meaning pf the said recited acts, several deceitful games and subscriptions are daily carried on under the denomination of sales of houses, lands, plate, jewels, goods and other things; and that several printers have printed, published, or caused to be printed and published, proposals or schemes for the sale of such houses, lands, plate, jewels, goods and other things, to be determined hy Raffles, by mathematical machines or engines, and by other (d) 10 & 11 Will. 3, c. 17 ; 9 Anne, c. 6, s. 56; 8 Geo. 1, c. 2, s. 36, prohibiting Lotteries. STATUTES. 365 indirect ways and means, tending to evade the said good and " ' )lesome laws before mentioned; and whereas several per- > have for many years past carried on and set up certain i.dulent games and lotteries, to be determined by the ,:;ce of cards and dice, under the denomination of the games :he ace of hearts, pharaoh, basset and hazard, and thereby ..auded several of his majesty's subjects ignorant of the j:.eat disadvantage adventures in the said games and lotteries so denominated the games of the ace of hearts, pharaoh, basset or hazard {e), are under, subject and liable to : and whereas several doubts have arisen whether the said games of the ace of hearts, pharaoh, basset and hazard {e) are within the descrip- tions of the lotteries prohibited by the said recited acts of parliament (/) ; and whereas great difficulties have arisen upon the methods of conviction of the offenders against the said acts of parliament ; for remedy whereof and for explain- ins: and making more effectual the said acts of parliament, may it please your most excellent majesty that it may be enacted, and be it enacted by the king's most excellent ma- jesty, by and with the advice and consent of the lords spi- ritual and temporal, and commons, in the present parliament assembled, and by the authority of the same, That if any per- 2001. penalty son or persons shall, after the twenty-fourth day of June, one ^^ ^"^ '^^7 thousand seven hundred and thirty-nine, erect, set up, con- ^^^ ^^^^ tinue or keep any office or place under the denomination of a sale or sales of houses, land, advowsons, presentations to livings, plate, jewels, ships, goods or other things by way of lottery, or by lots, tickets, numbers or figures, cards or dice ; or shall make, print, advertize or publish, or cause to be made, printed, advertized or published, proposals or schemes for advancing small sums of money by several persons, amounting in the whole to large sums, to be divided among them by chances of the prizes in some public lottery or lotteries esta- blished or allowed by act of parliament, or shall deliver out, or cause or procure to be delivered out, tickets to the persons advancing such sums, to entitle them to a share of the money so advanced, according to such proposals or schemes ; or shall expose to sale any houses, lands, advowsons, presentations to livings, plate, jewels, ships or other goods by any game, me- thod or device whatsoever, depending upon or to be deter- mined by any lot or drawing, whether it be out of a box or wheel, or by cards or dice, or by any machine, engine or de- vice of chance of any kind whatsoever ; such person or per- sons, and every or either of them, shall, upon being convicted (e) Rex V. Liston, 5 T. R. 9 Anne, c. 6, s. 56 ; 8 Geo. 1, 3 10 ; M'K'mnell v. Robinson, 3 c. 2, s. 36, prohibiting Lot- M. & W. 434. teries. (/) 10 & 11 Will. 3, c. 17; 366 APPENDIX. The same how to be levied and applied. Games ■with- in intent of the act. 501. penalty on the adven' turers. thereof before any one justice of the peace for any county, riding or division, or before *the mayor or other justice or justices of the peace for any city or town corporate, upon the oath or oaths of one or more credible witness or witnesses (which said oaths the said justices of the peace and mayor are hereby authorized, empowered and required to admi- nister), or upon the view of such justice or justices, or the mayor, justice or justices for any city or town corporate, or on the confession of the party or parties accused, shall forfeit and lose the sum of Two hundred pounds, to be levied by dis- tress and sale of the offender's goods, by warrant under the hands and seals of one or more justice or justices of the peace of such county, riding, division, city or town where the offence shall be committed ; which said forfeitures, when recovered, after deducting the reasonable charges of such prosecution, shall go and be applied, one-third thereof to the informer and the remaining two-thirds to the use of the poor of the parish where such offence shall be committed, excepting the said two-thirds of such forfeitures which shall be incurred by and recovered upon any person or persons within the city of Bath, which said two- thirds shall go and be applied to and for the use and benefit of the poor residing within the hospital or infirmary lately erected for the benefit of poor persons re- sorting to the said city for the benefit of the mineral waters, after deducting the charges of conviction as aforesaid. 2. And it is hereby enacted and declared, That the said games of tJie ace of hearts, pharaoh, basset and hazard(f), are and are hereby declared to be games or lotteries by cards or dice within the intent and meaning of the said in part recited acts ; and that all and every person or persons who shall set up, maintain or keep the said games of the ace of hearts, pharaoh, basset and hazard shall be subject and liable to all and every the penalties and forfeitures in and by this act in- flicted upon any person or persons who shall erect, set up, continue or keep any of the said games or lotteries in this present act mentioned ; and shall be prosecuted and con- victed, and the penalties and forfeitures shall be sued for and recovered, in like manner as the said penalties and forfeitures are by this act directed to be sued for and recovered. 3. And be it further enacted by the authority aforesaid, That all and every person and persons who shall be adven- turers in any of the said games, lottery or lotteries, sale or sales ; or shall play, set at, stake or punt at either of the said games of the ace of hearts, pharaoh, basset and hazard (f), and shall be thereof convicted in such manner and form as in and by this act is prescribed, every such person or persons shall (/) Rex V. Liston, 5 T. R. 340; M'Kinnell v. Robinson, 3 M. & W. 441. STATUTES. 367 forfeit and lose the sum of Fifty pounds, to be sued for and re- covered as aforesaid. 4. And it is hereby further enacted by the authority afore- Sales by lot- said, That all and every such sale or sales of houses, lands, *^"^^ ^°^'^' advowsons, presentations to livings, plate, jewels, ships, goods or other things by any game, lottery or lotteries, ma- chine, engine or other device whatsoever, depending upon or to be determined by chance or lot, shall and are hereby de- clared to be void to all intents and purposes whatsoever ; and and lands, all such houses, lands, advowsons, presentations to livings, &c. forfeited, plate, jewels, ships, goods or other things set up and exposed to sale in manner and form aforesaid shall be forfeited to such person or persons who shall sue for the same, by action, bill, plaint or information, in any of his majesty's courts of record, or at the assizes for any county where the offence shall be committed ; in which action, bill, plaint or information no essoin, protection, wager of law, or more than one imparlance shall be allowed. 5. Provided always, and it is hereby declared and enacted, Appeal. That if any person or persons shall think him, her or them- selves aggrieved by the judgment or determination of any jus- tice or justices of the peace or mayor as aforesaid, upon any conviction of or for any of the offences in this act, such per- son or persons may appeal from the said judgment of the said justice or justices or mayor to the next general quarter ses- sions of the peace for the said county, riding, division, city or place where such person or persons was or were convicted ; but the person and persons so appealing shall, and he, she and they are hereby directed to give reasonable notice to the prosecutor or prosecutors of such person or persons as shall so appeal, of such, his, her or their intention of bringing and prosecuting such appeal, and shall enter into a recognizance before some justice of the peace for the county, riding, divi- sion, city or place wherein the conviction or judgment was made or given, with two sufficient sureties, on condition to try such appeal at the next quarter sessions which shall be held in and for the county, riding, division, city or place wherein such conviction or judgment was made or given, next and immediately after the bringing such appeal ; and every such appeal and appeals shall, by the court at the said next general quarter sessions, to which such appeal and ap- peals is or are made, be then examined, and the matter then finally heard and determined, and not afterwards; and in case such judgment, determination or conviction as aforesaid shall be then and there affirmed, the party appealing shall pay unto the prosecutor or prosecutors his, her or their treble costs ; and such prosecutor and prosecutors shall have such remedy for the same as any defendant or defendants hath or have for costs of suit in any other cases by law. 368 APPENDIX. Convictions, Record re- movable upon 100^. security. Offenders not able to pay the penalties to be im- prisoned. Penalty on neglect of justices or mayors. 6. Provided always, and be it further enacted by the au- thority aforesaid, That no such conviction made, or judgment given as aforesaid, by this act, shall be set aside by the said court of quarter sessions for want of form, in case the facts alleged in the said conviction shall be proved to the satisfac- tion of the said court; nor shall such conviction or judgment be removed or removable by certiorari, or any other writ or process whatsoever, into any of his majesty's courts of record at Westminster, until such order or other proceedings shall have been first removed to, and judgment and determination given and made thereupon, by such court of quarter sessions as aforesaid. 7. Provided also, and be it further enacted by the authority aforesaid, That no writ of certiorari or other process shall issue or be issuable to remove the record of any such convic- tion from the said court of quarter sessions, or to remove any order or other proceedings taken or made by the said court of quarter sessions upon, touching or concerning such convic- tion, into any of his majesty's courts of record at Westmin- ster, until the party or parties against whom such conviction shall be made, before the allowance of such writ of certiorari or other process, shall find two sufficient sureties to become bound to the prosecutor in the sum of One hundred pounds, with condition to prosecute the same with effect within six calendar months, and to pay unto the prosecutor or prosecu- tors his, her or their treble costs and charges, in case such order or conviction shall be affirmed. 8. And it is hereby further enacted and declared, That if any person or persons who shall be convicted of erecting, setting up, maintaining or keeping any of the said lotteries, or the said games of the ace of hearts, pharoah, basset or hazard, or therein or in either of them shall adventure, and shall not have sufficient goods and chattels whereon to levy the penal- ties inflicted by this act, or shall not immediately pay the said penalties, or give secvirity for the same, it shall and may be lawful for the said justice or justices, before whom such person shall be convicted as aforesaid, to commit such person or persons to the common gaol of the county, riding, division, city or place where such offence shall be committed, there to con inue and remain for any time not exceeding six months. 9. And be it also enacted. That if any justice of the peace, or any other justice hereinbefore described, or mayor of any corporation, shall neglect or refuse to do what is required of him and them by this act, such justices and mayors so neg- lecting or refusing shall respectively forfeit and pay the sum of Ten pounds for each offence; one moiety whereof to be paid to any person or persons who shall sue for the same, and the other moiety thereof to the poor of the parish or place STATUTES. 369 where such offence shall be committed (^), and shall be re- covered with full costs of suit, by action, bill, plaint or infor- mation in any of his majesty's courts of record, or at the assize * for any county ; in which action, bill, plaint or information no essoin, protection or wager of law, nor more than one imparl- ance shall be allowed ; such prosecution being commenced within six months next after such refusal of such justices or mayor. 10. Provided always, and it is hereby enacted and de- This act not clared, that nothing in this act or in any former acts against *^ hinder any gaming contained shall extend to prevent or hinder any palaces where person or persons from gaming or playing at any of the games the king re- in this or in any of the said former acts mentioned within any sides; of his majesty's royal palaces, where his majesty, his heirs or successors shall then reside. 11. Provided always, and it is hereby further enacted and nor to affect declared, That nothing herein contained shall extend, or be ^^^ \^^^} °^ any ways construed, deemed or taken to extend, or in any grj i^gj^j ^y sort to affect or prejudice any estate or interest in, out of, or lot. to any manors, honours, royalties, lands, tenements, advow- sons, presentations, rents, services and hereditaments whatso- ever, which shall or may at any time or times hereafter be ac- cording to the laws now in being legally allotted to, or held by, or by means of any allotment or partition by lots (h) ; but that all persons who now are, or that shall hereafter become, really and truly seised as part owneis, joint tenants, and tenants in common of any manors, honours, royalties, lands, tenements, advowsons, presentations, rents, services and here- ditaments shall, and he, she and they and his, her and their heirs and assigns is and are hereby made and continued capable to accept and take such estates and interest, and parts therein, in such and the like manner, and to such and the like uses, as he, she or they might, would or could have done by or by virtue or in consequence of any lot, scroll, chance or allotment whatsoever had this present act never been made, any thing herein contained to the contrary thereof notwith- standing. 12. And be it further enacted by the authority aforesaid, Limitations That if any suit or action shall be conmienced or prosecuted ^f actions, against any person or persons for anything done in pursuance of this act, every such suit or action shall be commenced within three calendar months next after the fact was com- mitted, and not afterwards ; and shall be laid or brought in the county, city or place where the cause of action shall arise, and not elsewhere ; and the defendant and defendants therein General shall and may plead the general issue, and give this act and issue. (g) But see 46 Geo. 3, (/^) See Ballot in Land So- c. 148, s. 59. cieties, ante, Part 3, Chap. 4. r5 370 APPENDIX. Treble Costs. the special matter in evidence at the trial to be had there- upon, and that the same was done in pursuance of or by the authority of this act ; and if the plaintiff or plaintiffs shall become nonsuited or discontinue his, her or their action or actions, suit or suits, or if upon demurrer judgment shall be given against the plaintiff or plaintiffs, the defendant or defendants shall and may recover treble costs, and have like remedy for the same as any defendant or defendants hath or have for costs in any other cases by law. 12 Geo. 2, c. 28. Game of passage, and other games •with dice, prohibited. 13 Geo. II. Cap. 19. 1 An Act to restrain and prevent the excessive Increase of Horse Races, and for amending an Act made in the last Session of Parliament, intituled ^' An Act for the more effectual preventing of excessive and deceitful Gaming.'^ 9. '* And whereas a good and wholesome law was made in the twelfth year of the reign of his present majesty King George the Second, intituled ' An Act for the more effectual preventing of excessive and deceitful Gaming;' but contrary to the true intent and meaning thereof, some fraudulent and deceitful games have been invented, and a certain game called passage is now daily practised and carried on, to the ruin and impoverishment of many of his ]V[ajesty's subjects;" it is therefore hereby enacted and declared, that the said game of passage, and all and every other game and games invented or to be invented, with one or more die or dice, or with any other instrument, engine or device, in the nature of dice, having one or more figures or numbers thereon, {hack gammon and the other games now played within the backgammon tables only excepted) are and shall be deemed to be games or lotteries by dice, within the intent and meaning of the said in part recited act ; and all and every person and persons who shall set up, maintain or keep any office, table or place (save and except as in the said in part recited act is provided and declared), for the said game of passage, or for any other such game or games as aforesaid (backgammon and the other games now played with the backgammon tables only excepted), shall severally forfeit, be subject and liable to, all and every the penalties and forfeitures in and by the said in part recited act inflicted upon any person or persons who shall erect, set up, continue or keep any of the games or lotteries in the said in part recited act mentioned ; and all and every person or persons who shall play, set at, stake or adventure at the said game of passage, or at any such other game as aforesaid, (backgammon and STATUTES. 371 the other games now played with the backgammon tables only excepted,) save and except as in the said in part recited act is provided and declared, he and they respectively shall seve- rally forfeit, be subject and liable to ail and every the penalties Under penal- and forfeitures in and by the said in part recited act inflicted ^^^ ^^^ ^^ „« upon any person or persons who shall play, set at, stake or • > • • adventure at any of the said games in the said in part recited act mentioned ; and all and every such offenders respectively shall be prosecuted and convicted, and the several penalties and forfeitures shall be sued for and recovered and disposed of in like manner, and to such uses, as the several penalties and forfeitures in either of such cases are by the said in part recited act directed to be sued for and recovered, and disposed of. 10. And be it further enacted, by the authority aforesaid, That in any action, bill, plaint or information, to be brought or commenced by virtue of this act, no essoin, protection, wager of law, or more than one imparlance shall be allowed ; and that over and above the penalties and forfeitures to be Double costs, recovered by virtue of this act, the plaintiflf or informer shall recover his or her double costs. 18 Geo. II. Cap. 34. An Act to explain, amend, and make more effectual the Laws in heijig, to prevent excessive and deceitful Gaming; and to restrain and prevent the excessive Increase of Horse Races. " Whereas notwithstanding the many good and wholesome laws now in being for preventing excessive and deceitful gaming, many persons of ill fame and reputation, who have no visible means of subsistence, do keep houses, rooms and other places for playing, and do permit persons therein to play at cards, dice and other devices, for large sums of money, by means whereof divers young and unwary persons and others are drawn in to lose the greatest part, and sometimes all their substance ; and it frequently happens they are thereby re- duced to the utmost necessities, and betake themselves to the most wicked courses, which end in their utter ruin : And whereas a certain pernicious game called roulet, or roly-poly, is daily practised, and the laws now in being have by expe- rience been found ineffectual to put a stop to such pernicious practices :" For remedy whereof may it please your majesty that it may be enacted, and be it enacted by the king's most excellent majesty, by and with the advice and consent of the the lords spiritual and temporal, and commons, in this present 372 APPENDIX. No person shall keep a place for playing roly- poly, or other game with cards or dice ; under penal- ties of 12 Geo. 2, C.28. Persons play- ing shall incur the pe- nalties of 12 Geo. 2, 0. 28. On informa- tion for any offence against this act, or 12 Geo. 2, c.28. or 13 Geo. 2, c. 19, persons may be summoned to give evi- dence. parliament assembled, and by the authority of the same, That from and after the twenty-fourth day of June, one thousand seven hundred and forty-five, no person or persons, of what condition soever, shall keep any house, room or place for playing, or permit or suffer any person or persons whatsoever, within any such house, room or place, to play at the said game of roulet, otherwise roly-poly, or at any other game, w'ith cards or dice, already prohibited by the laws of this realm ; and in case any person or persons whatsoever shall keep any such house, room or place for playing, or permit or suffer any person or persons as aforesaid to play at the said game of roulet, otherwise roly-poly, or at any other game, with cards or dice already prohibited by law, such person or persons so offending shall incur the pains and penalties, and be liable to such prosecution as is directed in and by an act made in the twelfth year of the reign of his present majesty, intituled ** An Act for the more effectual preventing excessive and de- ceitful Gaming." 2. And be it further enacted, by the authority aforesaid, That if any person or persons w^hatsoever shall after the said twenty-fourth day of June, one thousand seven hundred and forty-five, play at the said game of roulet, otherwise roly-poly, or at any game or games with cards or dice, already pro- hibited by law, every such person or persons so offending shall also incur the pains and penalties, and be liable to such prosecution, as is directed in and by an Act made in the twelfth year of the reign of his present majesty, intituled ** An Act for the more effectual preventing excessive and deceitful Gaming." 4. And for the more easy conviction of persons offending against this or any other former act, for preventing excessive and deceitful gaming, be it enacted by the authority aforesaid, That it shall and may be lawful to and for such person or persons who have jurisdiction to hear and determine infor- mations upon the statutes against excessive and deceitful gaming, upon any information exhibited before them, for any offence committed against this act, or against the statute made in the twelfth year of his present majesty, intituled "An Act for the more effectual preventing of excessive and deceitful Gaming;" or against one other act made in the thirteenth year of the reign of his present majesty, intituled '* An Act to restrain and prevent the excessive increase of Horse Races, and for amending an Act made in the last Session of Parlia- ment, intituled ' An Act for the more effectual pj'eventing excessive and deceitful Gaming;' " to summon any person or persons, other than the party accused, to appear before them at a certain day, time and place, to be inserted in such sum- mons, and to give evidence for the discovery of the truth of the matter in the said information contained ; and in case of STATUTES. 373 neglect or refusal to appear, or if upon appearance such person or persons shall refuse to give evidence, or shall give any false evidence, every such person or persons so offending shall forfeit and lose the sum of Fifty pounds, to be levied by dis- tress and sale of the offender's goods and chattels, by warrant under the hands and seals of such persons issuing such sum- mons as aforesaid ; and in case such person or persons not appearing, or neglecting, or refusing to give such evidence, or giving any false evidence, shall not have sufficient goods and chattels whereon to levy the said sum of Fifty pounds, every such person or persons shall be by such person or per- sons having jurisdiction as aforesaid committed to the common gaol for the county, city or place where such offence shall be committed, there to remain for the space of six months without bail or mainprize. 5. xA.nd be it further enacted by the authority aforesaid. No person That from and after the twenty-fourth day of June, one incapable of thousand seven hundred and forty-five, no person or persons ness &c other than the parties plaintiff and defendant in the cause shall be incapacited from being a witness, touching any offence committed again -t the laws for preventing excessive and deceitful gaming, by reason of having played, betted or staked at any game prohibited by this or any of the said statutes. 6. Provided also, and it is hereby enacted and declared, Proviso for That nothing in this act contained shall extend to prevent or ^^^^ palaces, hinder any person or persons firom playing at any game what- soever within any of his majesty's royal palaces wherein his majesty, his heirs and successors, shall then actually reside. 7. And be it further enacted by the authority aforesaid, No privilege That no privilege of parliament shall be allowed to any person of parlia- or persons whatsoever against whom any prosecution or pro- ' ceedings shall be commenced or had for keeping of any public or common gaming-house, or any house, room or place, for playing at any game or games prohibited by this or any other act now in being against excessive or deceitful gaming, any law, usage or custom to the contrary in anywise notwithstanding. 5 Geo. IY. Cap. 83. An Act for the Punishment of idle and disorderly Per- sons, and Hogues and Vagabonds, in that part of Great Britain called England, Sect. 4. And be it further enacted, That every person com- Persons com- mitting any of the offences hereinbefore mentioned, after fitting cer- having been convicted as an idle and disorderly person ; every iferein^^rf-^ APPENDIX. person pretending or professing to tell fortunes, or using any subtle craft, means or device, by palmistry or otherwise, to deceive and impose on any of his majesty's subjects; every person wandering abroad and lodging in any barn or out- house, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or waggon, not having any visible means of subsistence, and not giving a good account of himself or herself; every person wilfully exposing to view, in any street, road, highway or public place any obscene print, picture or other indecent exhibition ; every person wilfully, openly, lewdly and obscenely exposing his person in any street, road or public highw-ay, or in the view thereof, or in any place of public resort with intent to insult any female ; every person wandering abroad and endeavouring by the exposure of wounds or deformities to obtain or gather alms; every person going about as a gatherer or collector of alms, or endeavouring to procure charitable contributions of any nature or kind, under any false or fraudulent pretence ; every person running away and leaving his wife, or his or her child or children, chargeable, or whereby she or they or any of them shall become chargeable to any parish, township or place ; every person playing or betting in any street, road, highway or other open and jniblic place, at or with any table or instrument of gaming, at any game or pretended game of chance ; every person having in his or her custody or possession any picklock key, crow, jack, bit or other implement, with intent feloniously to break into any dwellinghouse, warehouse, coachhouse, stable or outbuilding, or being armed with any gun, pistol, hanger, cutlass, bludgeon or other offensive w^eapon, or having upon him or her any instrument, with intent to commit any felonious act ; eveiy person being found in or upon any dwellinghouse, warehouse, coachhouse, stable or outhouse, or in any inclosed yard, garden or area, for any unlawful purpose ; every suspected person or reputed thief, frequenting any river, canal or navigable stream, dock or basin, or any quay, wharf or warehouse near or adjoining thereto, or any street, highway or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, highway or place adjacent, with intent to commit felony ; and every person apprehended as an idle and dis- orderly person, and violently resisting any constable or other peace officer so apprehending him or her, and being subse- quently convicted of the offence for which he or she shall have been so apprehended, shall be deemed a rogue and vaga- bond, ivithin the true intent and meaning of this act ; and it shall be lawful for any justice of the peace to commit such offender (being thereof convicted before him by the confession of such offender, or by the evidence on oath of one or more credible witness or witnesses) to the house of correction, there STATUTES. 375 to be kept to hard labour for any time not exceeding three calendar months; and every such picklock key, crow, jack, bit and other implement, and every such gun, pistol, hanger, cutlass, bludgeon or other offensive weapon, and every such instrument as aforesaid, shall, by the conviction of the offender, become forfeited to the king's majesty. 3 & 4 Will. IV. Cap. 42. An Act f 01' the further Amendment of the Law, and the better Advancement of Justice. Sect. 23. And whereas great expense is often incurred, and Allowing delay or failure of justice takes place at trials, by reason of ^™^e made*^ variances as to some particular or particulars between the ^^ t^e record proof and the record or setting forth, on the record or docu- in certain ment on which the trial is had, of contracts, customs, pre- cases, scriptions, names and other matters or circumstances not material to the merits of the case, and by the misstatement of which the opposite party cannot have been prejudiced, and the same cannot in any case be amended at the trial, except where the variance is between any matter in wTiting or in print produced in evidence and the record : And whereas it is expedient to allow such amendments as hereinafter mentioned to be made on the trial of the cause ; be it therefore enacted, That it shall be lawful for any court of record, holding plea in civil actions, and any judge sitting at nisi prius, if such court or judge shall see fit so to do, to cause the record, writ or document on which any trial may be pending before any such court or judge, in any civil action, or in any information in the nature of a quo warranto, or proceedings on a man- damus, when any variance shall appear between the proof and the recital or setting forth, on the record, writ or document on which the trial is proceeding, of any contract, custom, pre- scription, name or other matter, in any particular or particu- lars in the judgment of such court or judge not material to the merits of the case, and by which the opposite party cannot have been prejudiced in the conduct of his action, prosecution or defence, to be forthwith amended by some officer of the court or otherwise, both in the part of the pleadings where such variance occurs, and in every other part of the pleadings which it may become necessary to amend, on such terms as to payment of costs to the other party, or postponing the trial to be had before the same or another jury, or both payment of costs and postponement, as such court or judge shall think reasonable ; and in case such variance shall be in some par- ticular or particulars in the judgment of such court or judge not material to the merits of the case, but such as that the opposite party may have been prejudiced thereby in the con- 376 APPENDIX. Power for the court or judge to di- rect the facts to be found specially. Power to state a spe- cial case ■without pro- ceeding to trial. duct of his action, prosecution or defence, then such court or judge shall have power to cause the same to be amended upon payment of costs to the other party, and withdrawing the record or postponing the trial as aforesaid, as such court or judge shall think reasonable; and after any such amendment the trial shall proceed, in case the same shall be proceeded with, in the same manner in all respects, both with respect to the liability of witnesses to be indicted for perjury, and other- wise, as if no such variance had appeared ; and in case such trial shall be had at nisi prius or by virtue of such writ as aforesaid, the order for the amendment shall be indorsed on the postea or the writ, as the case may be, and returned together with the record or writ, and thereupon such papers, rolls, and other records of the court from which such record or writ issued, as it may be necessary to amend, shall be amended accordingly ; and in case the trial shall be had in any court of record, then the order for amendment shall be entered on the roll or other document upon which the trial shall be had ; provided that it shall be lawful for any party who is dissatis- fied with the decision of such judge at nisi prius, sheriff, or other officer, respecting his allowance of an^^ such amendment, to apply to the court from which svich record or writ issued for a new trial upon that ground, and in case any such court shall think such amendment improper, a new trial shall be granted accordingly, on such terms as the court shall think fit, or the court shall make such other order as to them may seem meet 24. And be it further enacted, That the said court or judge shall and may, if they or he think fit, in all such cases of variance, instead of causing the record or document to be amended as aforesaid, direct the jury to find the fact or facts according to the evidence, and thereupon such finding shall be stated on such record or document, and, notwithstanding the finding on the issue joined, the said court or the court from which the record has issued shall, if they shall think the said variance immaterial to the merits of the case, and the misstatement such as could not have prejudiced the opposite party in the conduct of the action or defence, give judgment according to the very right and justice of the case. 25. And be it further enacted, That it shall be lawful for the parties in any action or information, after issue joined, by consent and by order of any of the judges of the said superior courts, to state the facts of the case, in the form of a special case, for the opinion of the court, and to agree that a judg- ment shall be entered for the plaintiff or defendant, by con- fession or of nolle prosequi, immediately after the decision of the case, or otherwise as the court may think fit; and judg- ment shall be entered accordingly. STATUTES. 377 5 & 6 Will. IY. Cap. 41. An Act to amend the Laio relating to Securities given for Considerations arising out of gaming, usurious, and certain other illegal Transactions. Whereas by an act passed in the sixteenth year of the reign 16 Car. 2, c.7. of his late majesty King Charles the Second, and Ly an act passed in the parliament of Ireland in the tenth year of the lOWill. 3, (I.) reign of his late majesty King William the Third, each of such acts being intituled " An Act against deceitful, disorderly and excessive Gaming," it was enacted, that all and singular judgments, statutes, recognizances, mortgages, conveyances, assurances, bonds, bills, specialties, promises, covenants, agreements, and other acts, deeds, and securities whatsoever, which should be obtained, made, given, acknowledged, or entered into for security or satisfaction of or for any money or other thing lost at play or otherwise as in the said acts respectively is mentioned, or for any part thereof, should be utterly void and of none effect : and whereas by an act passed in the ninth year of the reign of her late Majesty Queen 9Ann. c. 14. Anne, and also by an act passed in the parliament of Ireland in the eleventh year of the reign of her said late majesty, each ^^ ■^"°- (^"^ of such acts being intituled " An Act for the better preventing of excessive and deceitful Gaming," it was enacted, that from and after the several days therein respectively mentioned all notes, bills, bonds, judgments, mortgages, or other securities or conveyances whatsoever, given, granted, drawn, or entered into or executed by any person or persons whatsoever, where the whole or any part of the consideration of such convey- ances or securities should be for any money or other valuable thing whatsoever won by gaming or playing at cards, dice, tables, tennis, howls, or other game or games whatsoever, or hy betting on the sides or hands of such as did game at any of the games aforesaid, or for the reimbursing or repaying any money knowingly lent or advanced for such gaming or betting as afore- said, or lent or advanced at the time and place of such play to any person or persons so gaming or betting as aforesaid, or that should, during such play, so play or bet, should be utterly void, frustrate, and of none effect, to all intents and purposes what- soever ; and that where such mortgages, securities, or other conveyances should be of lands, tenements, or hereditaments, or should be such as should encumber or affect the same, such mortgages, securities, or other conveyances should enure and be to and for the sole use and benefit of and should devolve upon such person or persons as should or might have or be entitled to such lands or hereditaments in case the said grantor or gi'antors thereof, or the person or persons so incum- bering the same, had been naturally dead, and as if such 378 APPENDIX. mortgages, securities, or other conveyances had been made to such person or persons so to be entitled after the decease of the person or persons so encumbering the same ; and that all grants or conveyances to be made for the preventing of such lands, tenements, or hereditaments from coming to or de- volving upon such person or persons thereby intended to enjoy the same as aforesaid should be deemed fraudulent and void and of none effect, to all intents and purposes what- 12 Ann. st. 2, soever: and whereas by an act passed in the twelfth year of ^- ^^' the reign of her said late majesty Queen Anne, intituled " An Act to reduce the Rate of Interest without any prejudice to Parliamentary Securities," it was enacted, that all bonds, con- tracts, and assurances whatsoever made after the twenty-ninth day of September, one thousand seven hundred and fourteen, for payment of any principal or money to be lent or cove- nanted to be performed upon or for any usury, whereupon or whereby there should be reserved or taken above the rate of five pounds in the hundred, as therein mentioned, should be utterly void : and whereas by an act passed in the parliament 5 Geo. 2, (I.) of Ireland in the fifth year of the reign of his late majesty King George the Second, intituled " An Act for reducing the Interest of Money to Six per Cent," it was enacted, that all bonds, contracts and assurances whatsoever made after the first day of May, one thousand seven hundred and thirty-two, for payment of any principal or money to be lent or covenant to be performed upon or for any loan, whereupon or whereby there should be taken or reserved above the rate of six pounds in the hundred, should be utterly void : and whereas by an 58 Geo. 3, act passed in the fifty-eighth year of the reign of his late c. 93. majesty King George the Third, intituled "An Act to afford Relief to the bond fide Holders of negotiable Securities with- out Notice that they were given for a usurious Consideration," it was enacted, that no bill of exchange or promissory note that should be drawn or made after the passing of that act should, though it might have been given for a usurious con- sideration or upon a usurious contract, be void in the hands of an indorsee for valuable consideration, unless such indorsee had at the time of discounting or paying such consideration for the same actual notice that such bill of exchange or pro- missory note had been originally given for a usurious consi- deration or upon a usurious contract : and whereas by an act 11 & 12 Geo. passed in the parliament of Ireland in the eleventh and twelfth 3, (I ) years of the reign of his said late majesty King George the Third, intituled "An Act to prevent Frauds committed by Bankrupts," it was enacted, that every bond, bill, note, con- tract, agreement or other security whatspever to be made or given by any bankrupt or by any other person unto or to the use of or in trust for any creditor or creditors, or for the se- STATUTES. 379 curity of die payment of any debt or sum of money due from such bankrupt at the time of his becoming bankrvipt, or any part thereof, between the time of his becoming bankrupt and such bankrupt's discharge, as a consideration or to the intent to persuade him, her or them to consent to or sign any such allowance or certificate, should be wholly void and of no effect, and the monies there secured or agreed to be paid should not be recovered or recoverable : and whereas by an act passed in *i5 Geo. 3, the forty-fifth year of the reign of his said late majesty King ^' '"* George the Third, intituled " An Act for the Encouragement of Seamen, and for the better and more effectually manning his Majesty's Navy during the present War," it was enacted, that all contracts and agreements which should be entered into, and all bills, notes and other securities which should be given by any person or persons for ransom of any ship or vessel, or of any merchandize or goods on board the same, contrary to that act, should be absolutely null and void in law, and of no eff"ect whatsoever: and whereas by an act passed in the sixth 6 Geo. 4, c.l6. year of the reign of his late majesty King George the Fourth, intituled "An Act to amend the Laws relating to Bankrupts," it was enacted, that any contract or security made or given by anv bankrupt or other person unto or in trust for any creditor, or for securing the payment of any money due by such bank- rupt at his bankruptcy as a consideration or with intent to persuade such creditor to consent to or sign the certificate of any such bankrupt, should be void, and the money thereby secured or agreed to be paid should not be recoverable, and the party sued on such contract or security might plead the general issue, and give that act and the special matter in evi- dence : and whereas securities and instruments made void by virtue of the several hereinbefore recited acts of the sixteenth year of the reign of his said late majesty King Charles the Second, the tenth year of the reign of his said late majesty King William the Third, the ninth and eleventh years of the reign of her said late majesty Queen Anne, the eleventh and twelfth years of the reign of his said late majesty King George the Third, the forty-fifth year of the reign of his said late majesty King George the Third, and the sixth year of the reign of his said late majesty King George the Fourth, and securities and instruments made void by virtue of the said act of the twelfth year of the reign of her said late majesty Queen Anne and the fifth year of the reign of his said late majesty King George the Second, other than bills of exchange or pro- missory notes made valid by the said act of the fifty-eighth year of the reign of his said late majesty King George the Third, are sometimes indorsed, transferred, assigned or con- veyed to purchasers or other persons for a valuable considera- tion, without notice of the original consideration for which such securities or instruments were given ; and the avoidance 380 APPENDIX. arising out of illegal trans- actions not to be void, hut to 1)6 deemed to have been given for an illegal consi- deration. of such securities or instruments in the hands of such pur- chasers or other persons is often attended with great hardship and injustice : For remedy thereof be it enacted by the king's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Securities parliament assembled, and by the authority of the same, That given for con- so much of the hereinbefore recited acts of the sixteenth year Kiderations of the reign of his said late majesty King Charles the Second, the tenth year of the reign of his said late majesty King William the Third, the ninth, eleventh and twelfth years of the reign of her said late majesty Queen Anne, the fifth year of the reign of bis said late majesty King George the Second, the eleventh and twelfth and the forty-fifth years of the reign of his said late majesty King George the Third, and the sixth year of the reign of his said late majesty King George the Fourth, as enacts that any note, bill or mortgage shall be absolutely void, shall be and the same is hereby repealed ; but nevertheless every note, lill or mortgage which if this act had not been passed w^ould, by virtue of the said several lastly hereinbefore mentioned acts or any of them have been absolutely void shall be deemed and taken to have been made, drawn, accepted, given or executed for an illegal consideration, and the said several acts shall have the same force and effect which they would respectively have had if instead of enacting that any such note, bill or mortgage should be absolutely void, such acts had respectively provided that every such note, bill or mortgage should be deemed and taken to have been made, drawn, accepted, given or executed for an illegal considera- tion : Provided always, that nothing herein contained shall prejudice or affect any note, bill or mortgage which would have been good and valid if this act had not been passed. 2. And be it further enacted, That in case any person shall, to the holder after the passing of this act, make, draw, give or execute any of such^secu^ ^"^^t^' ^^^^ °^ mortgage for any consideration on account of deemed to be which the same is by the hereinbefore recited acts of the six- paid on ac- teenth year of the reign of his said late majesty King Charles the Second, the tenth year of the reign of his said late majesty King William the Third, and the ninth and eleventh years of the reign of her said late majesty Queen Anne, or by any one or more of such acts, declared to be void, and such person shall actually pay to any indorsee, holder or assignee of such note, bill or mortgage the amount of the money thereby secured, or any part thereof, such money so paid shall be deemed and taken to have been paid for and on account of the person to whom such note, bill or mortgage was originally given upon such illegal consideration as aforesaid, and shall be deemed and taken to be a debt due and owing from such last-named per- son to the person who shall so have paid such money, and shall Money paid count of the person to ■whom the same was originally given. STATUTES. 381 accordingly be recoverable (i) by action at law in any of his majesty's courts of record. o. And be it further enacted, That so much of the said acts Repealing of the ninth and eleventh years of the reign of her said late %o much of majesty Queen Anne as enacts that where such mortgages, '^fn^fe^fA^ securities or other conveyances as therein mentioned should as enacts be of lands, tenements or hereditaments, or should be such as that secu- should incumber or atfect the same, such mortgages, securities "ties shall or other conveyances should enure and be to and for the sole benefit of ^^ use and benefit of and should devolve upon such person or parties in re- persons as should or might have or be entitled to such lands mainder. or hereditaments in case the grantor or grantors thereof, or the person or persons incumbering the same, had been natu- rally dead, and as if such mortgages, securities, or other con- veyances had been made to such person or persons so to be entitled after the decease of the person or persons so incum- bering the same, and that all grants or conveyances to be made for the preventing of such lands, tenements or hereditaments from coming to or devolving upon such person or persons thereby intended to enjoy the same as aforesaid, should be deemed fraudulent and void and of none effect, to all intents and purposes whatsoever, shall be and the same is hereby re- pealed ; saving to all persons all rights acquired by virtue thereof previously to the passing of this act. 4. And be it further enacted. That this act may be altered Act may he or repealed by any other act during this present session of ^^^^^ed this 1- ^ ■^ '' ^ session. parliament. 6 & 7 Vict. Cap. 85. An Act for improving the Law of Evidence. Whereas the inquiry after truth in courts of justice is often obstructed by incapacities created by the present law, and it is desirable that full information as to the facts in issue, both in criminal and in civil cases, should be laid before the per- sons who are appointed to decide upon them, and that such persons should exercise their judgment on the credit of the witnesses adduced and on the truth of their testimony : now therefore be it enacted by the queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, That no person offered as a Witnesses witness shall hereafter be excluded by reason of incapacity not to be ex- p • • ^ ^ c • ■ -1 ■i\ ■ eluded trom from crime or interest trom giving evidence, either in person diviner evi- or by deposition, according to the practice of the court, on the dence'by incapacity (i) Both principal and interest are recoverable, GUpin y. f5r°wltprp"t^ Clutter buck, Q. B., May 8, 1849. mieresi. 382 APPENDIX. trial of any issue joined, or of any matter or question or on any inquiry arising in any suit, action or proceeding, civil or criminal, in any court, or before any judge, jury, sheriff, coroner, magistrate, officer, or person having, by law or by consent of parties, authority to hear, receive, and examine evidence ; but that every person so offered may and shall be admitted to give evidence on oath, or solemn affirmation in those cases wherein affirmation is by law receivable, notwith- standing that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question or injury, or of the suit, action or proceeding in which he is offered as a witness, and notwithstanding that such person offered as a witness may have been previously Proviso. convicted of any crime or offence: [provided that this act shall not render competent any party to any suit, action, or proceeding individually named in the record, or any lessor of the plaintiff, or tenant of premises sought to be recovered in ejectment, or the landlord or other person in whose right any defendant in replevin may make cognizance, or any person in whose immediate and individual behalf any action may be brought or defended, either wholly or in part {k), or the husband or wife of such persoris re- Not to repeal spectively {I) ] : provided also, that this act shall not repeal any any provision provision in a certain act passed in the session of parliament 1 Vict c 26 holden in the seventh year of the reign of his late majesty and in the first year of the reign of her present majesty, intituled In courts of " An Act for the Amendment of the Laws with respect to equity de- Wills;" provided that in courts of equity any defendant to fendant may 'r ■.■ . , •^i'' -i be examined ^'^Y cause pendmg in any such court may be examined as a on behalf of witness on the behalf of the plaintiff or of any co-defendant in the plaintiff any such cause, saving just exceptions ; and that any interest defendant which such defendant so to be examined may have in the &c. ' matters or any of the matters in question in the cause shall not be deemed a just exception to the testimony of such de- fendant, but shall only be considered as affecting or tending to affect the credit of such defendant as a witness. In legal pro- 2. And be it enacted, that wherever in any legal proceed- ceedings not ings whatever legal proceedings may be set out, it shall not be necessary to necessary to specify that any particular persons who acted as jurors had jurors had made affirmation instead of oath, but it may be made affirm- stated that they served as jurymen, in the same manner as if ation. no act had passed for enabling persons to serve as jurymen without oath. As to suits 3. And be it enacted, that nothing in this act shall apply to commenced or affect any suit, action, or proceeding brought or commenced before pass- before the passing of this act. mg lb ac . ^ ^^^^ l^g ^j. gj^acted, that nothing in this act shall extend Not to ex- to Scotland. tend to Scot- land {k) Repealed by 14 & 15 (/) Repealed by 16 & 17 Vict. c. d9, s. 1, Appendix. Vict. c. 83, s. 4, Appendix. I STATUTES. 383 8 & 9 Vict. Cap. 47. An Act for the further Prevention of the Offence of Dog Stealing. Whereas by an act passed in the seventh and eighth years 7 & 8 Geo. 4, of "his Majesty King George the Fourth, intituled " An Act ^•'^^• for consolidating and amending the Laws in England relative to Larceny, and other Oflfences connected therewith," certain provisions were made for the prevention of dog stealing : and whereas it is expedient, for the further prevention of the said offence, that the provisions of the said recited act, so far as relates to dog stealing, and to dealing with the offenders in respect to the said otience, should be repealed : be it therefore Certain pro- enacted by the queen's most excellent majesty, by and with ^^^>°f ,. the adWce and consent of the lords spiritual and temporal, repealed, and commons, in this present parliament assembled, and by the authority of the same. That from and after the passing of this act the said provisions, so far as aforesaid, shall be re- pealed. 2. And be it enacted, That if any person shall steal any Punishment dog, every such offender shall be deemed guilty of a misde- for stealing meanor, and being convicted thereof before any two or more ^^^' justices of the peace shall for the first ofi'ence, at the discre- First offence, tion of the said justices, either be committed to the common gaol or house of correction, there to be imprisoned only or be imprisoned and kept to hard labour for any term not exceed- ing six calendar months, or shall forfeit and pay, over and above the value of the said dog, such sum of money, not ex- ceeding Twenty pounds, as to the said justices shall seem meet; and if any person so convicted shall afterwards be guilty of Second of- the said oifence, every such offender shall be guilty of an in- ^^°^®- dictable misdemeanor, and being convicted thereof shall be liable to suffer such punishment, by fine or imprisonment, with or without hard labour, or by both, as the Court in its discretion shall award, provided such imprisonment do not exceed eighteen months. 3. And be it enacted. That if any dog, or the skin thereof, Penalty for shall be found in the possession or on the premises of any having pos- person by virtue of any search warrant, to be granted as is stolen^dogs hereafter in that behalf provided, the justice by whom such or of their ' search warrant was granted may restore the same to the owner skins ; thereof, and the person in whose possession or on whose pre- mises the same shall be so found (such person knowing that the dog has been stolen, or that the skin is the skin of a stolen dog) shall, on conviction before any two or more justices of First offence. the peace, be liable for the first offence to pay such sura of money, not exceeding Twenty pounds, as to the justices shall seem meet; and if any person so convicted shall be after- 384 APPENDIX. Apprehen- sion of offenders. Second of- wards guilty of the said offence, every such offender shall be fence. deemed guilty of a misdemeanor, and punishable accordingly. Penalty for ^- ^^^^ ^^ ^^ enacted. That if any person shall publicly compound- advertise or offer a reward for the return or recovery of any ing for of- clog which shall have been stolen or lost, and shall in such th"^^^ t°^^'~'^ advertisement use any words purporting that no questions will be asked, or shall make use of any words in any public advertisement purporting that a reward will be given or paid for any dog which shall have been stolen or lost without seizing or making any inquiry after the person producing such dog, every such person shall forfeit the sum of Tiventy-five pounds for eveiy such offence to any person who will sue for the same, by action of Debt, to be recovered with full costs of suit. 5. And be it enacted. That any person found committing any offence punishable either upon summary conviction or upon indictment by virtue of this act may be immediately apprehended without a warrant by any police officer, or by the owner of the dog, with respect to which the offence shall be committed, or by his servant or any person authorized by him, and forthwith taken before some neighbouring justice of the peace to be dealt with according to law ; and if any cre- dible witness shall prove upon oath before a justice of the peace a reasonable cause to suspect that any person has in his possession or on his premises any stolen dog, such justice may grant a warrant to search for such dog ; and any person to whom any dog shall be offered to be sold or delivered, if he shall have reasonable cause to suspect that such dog has been stolen, is hereby authorized, and, if in his power, is required to apprehend and forthwith to convey before a justice of the peace the party offering the same, together with such dog, to be dealt with according to law. 6. And be it enacted. That any person who shall corruptly take any money or reward directly or indirectly under pretence or upon account of aiding any person to recover any dog which shall have been stolen, or which shall be in the possession of any person not being the owner thereof, shall be guilty of a misdemeanor, and punishable accordingly. 7. And be it enacted. That any justice may, if he shall think fit, remand for further examination, or may suffer to go at large, with or without sureties, upon his personal recogni- zance, any person who shall be charged before him with any offence or misdemeanor punishable by this act, whether the same be punishable by summary conviction or as an indictable misdemeanor. 8. And be it enacted, That in every case of summary con- viction under this act where the sum which shall be forfeited for the value of any dog as is hereinbefore provided, or which shall be imposed as a penalty by the justices, shall not be paid either Penalty for receiving money to restore stolen (logs. Offenders may be re- manded, or admitted to bail. If penalties not paid jus- tices to com- mit offenders STATUTES. 385 immediately after the conviction or within such period as the justices shall at the time of the conviction appoint, it shall be lawful for the convicting justices to commit the offender to the common gaol or house of correction, there to be imprisoned only or imprisoned and kept to hard labour for any term not exceeding two calendar months where the amount of the sum forfeited, or of the penalty imposed, or of both (as the case may be), together with the costs, shall not exceed Five pounds, and for any term not exceeding four calendar months where the amount, with costs, shall not exceed Ten pounds, and for any term not exceeding six calendar months in any other case, the commitment to be determinable in each of the cases afore- said upon payment of the amount and costs. 8 & 9 Vict. Cap. 109. An Act to amend the Law concerning Games and Wagers. Whereas the laws heretofore made in restraint bf unlawful gaming have been found of no avail to prevent the mischiefs which may happen therefrom, and also apply to sundry games of skill from which the like mischiefs cannot arise : be it en- acted by the queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same. That so much of an act passed in the Repeal of thirty-third year of the reign of King Henry the Eighth, inti- P^rt of 33 tuled " The Bill for maintaining Artillery, and the debarring ^^"* ^' ''* ^• of unlawful Games," whereby any game of mere skill, such as bowling, coyting, cloyshcayls, half bowl, tennis, or the like, is declared an unlawful game, or which enacts any penalty for playing at any such game of skill as aforesaid, or which enacts any penalty for lacking bows or arrows, or for not making and continuing butts, or which regulates the making, selling or using of bows and arrows, and also so much of the said act as requires the mayors, sheriffs, bailiffs, constables, and other head officers within every city, borough and town within this realm, to make search weekly, or at the farthest once a month, in all places where houses, alleys, plays, or places of dicing, carding or gaming shall be suspected to be had, kept and maintained, shall be repealed, and also so much of the said act as makes it lawful for every master to license his or their servants, and for every nobleman and other having manors, lands, tenements, or other yearly profits for term of life, in his own right or in his wife's right, to the yearly value of an hun- dred pounds or above, to command, appoint or license, by his or their discretion, his or their servants or family of his or their S 386 APPENDIX. What shall be sufficient evidence that a house is a common gaming house. Power of jus- tices may be exercised under war- rant. house or houses to play at cards, dice or tables, or any un- lawful game, as therein more fully set forth, shall be repealed; and that no such commandment, appointment or licence shall avail any person to exempt him from the danger or penalty of playing at any unlawful game or in any common gaming house. 2. And whereas doubts have arisen whether certain houses, alleged or reputed to be opened for the use of the subscribers only, or not open to all persons desirous of using the same, are to be deemed common gaming houses (/) ; be it declared and enacted. That, in default of other evidence proving any house or place to be a common gaming house, it shall be suffi- cient, in support of the allegation in any indictment or infor- mation that any house or place is a common gaming house, to prove that such house or place is kept or used for playing therein at any unlawful game, and that a bank is kept there by one or more of the players exclusively of the others, or that the chances of any game played therein are not alike favour- able to all the players, including among the players the banker or other person by whom the game is managed, or against whom the other players stake, play or bet ; and every such house or place shall be deemed a common gaming house such as is contrary to law and forbidden to be kept by the said act of King Henry the Eighth, and by all other acts containing any provision against unlawful games or gaming houses. 3. And be it enacted. That in every case (except within the metropolitan police district) in which the justices of peace in every shire, and mayors, sheriffs, bailiffs and other head officers within every city, town and borough within this realm, now have by law authority to enter into any house, room or place, where unlawful games shall be suspected to be holden, it shall be lawful for any justice of the peace, upon complaint made before him on oath that there is reason to suspect any house, room or place, to be kept or used as a common gaming house, to give authority, by special warrant under his hand, when in his discretion he shall think fit, to any con- stable, to enter, with such assistance as may be found neces- sary, into such house, room or place, in like manner as might have been done by such justices, mayors, sheriffs, bailiffs or other head officers, and, if necessary, to use force for making such entry, whether by breaking open doors or otherwise, and to arrest, search and bring before a justice of peace all such per- sons found therein as might have been arrested therein by such justice of peace had he been personally present; and all such persons shall be dealt with according to law, as if they had been arrested in such house, room or place by the justice before whom they shall be so brought ; and any such warrant (/) See Crochford v. Lord Maidstone, Appendix. STATUTES. 387 may be in the form given in the first schedule annexed to this act. 4. And be it enacted, That the owner or keeper of any Penalties on common gaming house, and every person having the care or P™"? management thereof, and also e\ery banker, croupier and ers"^&c!^ other person who shall act in any manner in conducting the business of any common gaming house, shall, on conviction thereof, by his own confession, or by the oath of one or more credible witnesses, before any two justices of the peace, beside any penalty or punishment to which he may be liable under the provisions of the said act of King Henry the Eighth, be liable to forfeit and pay such penalty, not more than one hun- dred pounds, as shall be adjudged by the justices before whom he shall be convicted, or, in the discretion of the justices be- fore whom he shall be convicted, may be committed to the house of correction, with or without hard labour, for any time not more than six calendar months ; and on nonpayment of any penalty so adjudged, and of the reasonable costs and charges attending the conviction, the same shall be levied by distress and sale of the goods and chattels of the offender, by warrant under the hand and seal of one of the convicting jus- tices : Provided always, that nothing herein contained shall prevent any proceeding by indictment against the owner or keeper or other person having the care or management of a common gaming house ; but no person who shall have been summarily convicted of any such offence shall be liable to be proceeded against by indictment for the same offence. 5. And be it enacted. That it shall not be necessary, in Proof of support of any information for ffa miner in, or suffering any gaming for ^^ •■' • f 1 .^ ^ ■ u • money, &c. games or gaming in, or tor keeping or using, or being con- ^^^ necessary cerned in the management or conduct of a common gaming in support of house, to prove that any person found playing at any game informations was playing for any money, wager or stake. gammg. 6. And be it enacted, That if any superintendent belonging Commission- to the metropolitan police force shall report in writing to the ers of police commissioners of police of the metropolis that there are good ™^y autho- grounds for believing, and that he does believe, that any tendemand' house, room or place within the metropolitan police district (g), constables to is kept or used as a common gaming house, it shall be lawful enter gaming for either of the said commissioners, by order in writing, to , °;"^^^f^ , . , . , ' -^ , , ° seize all m- authorize the superintendent to enter any such house, room struments of or place, with such constables as shall be directed by the gaming and commissioner to accompany him, and, if necessary, to use ^^^^ ^^*° force for the purpose of effecting such entry, whether by break- persons * ing open doors or otherwise, and to take into custody all per- found there- sons who shall be found therein, and to seize all tables and ^^' instruments of gaming found in such house or premises, and (g) See 2 & 3 Vict c. 4, s. 48. s2 388 APPENDIX. Police super- intendent may search for instru- ments of gaming. What shall he deemed evidence of gaming. also to seize all monies and securities for money found therein. 7. And be it enacted, That it shall be lawful for the police superintendent making such entry as aforesaid in obedience to any such order of one of the commissioners of police of the metropolis, with the assistance of any constable or constables accompanying him, to search all parts of the house, room or place which he shall have so entered, where he shall suspect tliat tables or instruments of gaming are concealed, and all persons whom he shall find therein, and to seize all tables and instruments of gaming which he shall so find. 8. And be it enacted, That where any cards, dice, balls, counters, tables or other instruments of gaming used in play- ing any unlawful game shall be found in any house, room or place, suspected to be used as a common gaming house, and entered under a warrant or order issued under the provisions of this act, or about the person of any of those who shall be found therein, it shall be evidence, until the contrary be made to appear, that such house, room or place, is used as a com- mon gaming house, and that the persons found in the room or place where such tables or instruments of gaming shall have been found were playing therein, although no play was actu- ally going on in the presence of the superintendent or con- stable entering the same, under a warrant or order issued under the provisions of this act, or in the presence of those persons by whom he shall be accompanied as aforesaid ; and it shall be lawful for the police magistrate or justices before whom any person shall be taken by virtue of the warrant or order to direct all such tables and instruments of gaming to be forthwith destroyed. 9. And for the more effectual prosecution of the keepers of common gaming houses, be it enacted, that every person who shall have been concerned in any unlawful gaming, and who shall be examined as a witness by or before any police magis- trate or justice of the peace, or on the trial of any indictment or information against the owner or keeper or other person having the care or management of any common gaming house, touching such unlawful gaming, and who upon such exami- nation shall make true and faithful discovery to the best of his or her knowledge of all things as to which he or she shall be so examined, and shall thereupon receive from the magis- trate or justice of the peace or judge of the court by or before whom he or she shall be so examined a certificate in writing to that effect, shall be freed from all criminal prosecutions, and from all forfeitures, punishments and disabilities, to which he or she may have become liable for any thing done before that time in respect of such unlawful gaming. Justices may 10. And be it enacted. That the justices in every division, grant billiard district and place in England, for which a special session of Indemnity of ■witnesses. STATUTES. 389 the justices of the peace (called the general annual licensing licences at meeting) is holden annually for granting licences to persons licensing keeping or being about to keep inns, alehouses and victualling ^^^®^°"®' houses, to sell exciseable liquors by retail, to be drunk or con- sumed on the premises therein specified, shall have authority at such general annual licensing meeting, or at any adjourn- ment thereof, to grant billiard licences to such persons as the said justices shall in their discretion deem fit and proper to keep public billiard tables and bagatelle boards, or instru- ments used in any game of the like kind, and at the special sessions holden for transferring licences to keep inns shall have authority to transfer such billiard licences to such other persons as they in their discretion shall deem fit and proper to continue to hold the same, and who in each case shall be required to give the like notice of their intention to apply for such billiard licence, and entitled to receive the like notice of the licensing days as is required in the case of persons intend- ing to apply for a licence or the transfer of a licence to sell ex- ciseable liquoi's by retail to be drunk or consumed on the pre- mises, or as near thereto as the case will allow ; and every such billiard licence shall be in the form given in the third schedule annexed to this act, and shall continue in force in the counties of Middlesex and Surrey fi^om the fifth day of April, and elsewhere from the tenth day of October, after the granting thereof, for one whole year thence respectively next ensuing, and no longer; and the clerk of the justices shall be entitled to demand and receive from every person licensed under this act, for the petty constable or other peace officer for serving notices and other services required of him, the sum of One shilling, and for the clerk of the justices, for the licence, the sum of Five shillings ; and every clerk who shall demand or receive from any person for such fees more than the said sums, being together Six shillings, shall for every such ofience, on conviction before one justice, forfeit and pay the sum of Five pounds. 11. And be it enacted. That after the fifth day of April, in Places kept the year one thousand eight hundred and forty-six, in the f^^^P^^^i^ counties of Middlesex and Surrey, and elsewhere after the ^^ beV^^ ^^ tenth day of October next after the passing of this act, every censed, house {a), room, or place kept for public billiard playing, or where a public billiard table or bagatelle board, or instrument used in any game of the like kind is kept, at which persons are admitted to play, except in houses or premises specified in any licence granted under an act passed in the ninth year of the reign of King George the Fourth, intituled " An Act to 9 Geo. 4, regulate the granting of Licences to Keepers of Inns, Ale- c. 61. (a) As to rating a House containing a Billiard Table, see Part 3, Chap. 5. 390 APPENDIX. Notice that such places are licensed for billiards to be put up. Penalties for offences against tenor of licences. 9 Geo. 4, c. 61. houses, and Victualling Houses in England," hereinafter called a Victualler's Licence, shall be licensed under this act; and after the said fifth day of April in Middlesex and Surrey, and elsewhere after the said tenth day of October, every person keeping any such public billiard table or baga- telle board, or instrument used in any game of the like kind for public use, without being duly licensed so to do, and not holding a victualler's licence for the bouse or premises where such billiard table, bagatelle board, or other instrument as aforesaid is kept or used, and also every person licensed under this act who shall not during the continuance of such billiard licence put and keep up the words " Licensed for Billiards," legibly painted in some conspicuous place near the door and on the outside of the house specified in the licence, shall be liable to be proceeded against as the keeper of a common gaming house, and, beside any penalty or punishment to which he may be liable if convicted of keeping a common gaming house, shall, on conviction of keeping such unlicensed billiard table, bagatelle board, or other instrument as aforesaid, by his own confession, or by the oath of one or more credible witnesses before any police magistrate or any two justices of the peace, be liable to pay such penalty, not more than Ten pounds for every day on which such billiard table, bagatelle board, or instrument as aforesaid shall be used, as shall be adjudged by the magistrate or justices before whom he shall be convicted, or, in the discretion of the ma- gistrate or justices, may be committed to the house of correc- tion, with or without hard labour, for any time not more than orie calendar month ; and on nonpayment of any penalty so adjudged, and of the reasonable costs and charges of the con- viction, the same shall be levied by distress and sale of the goods and chattels of the offender, by warrant under the hand and seal of the magistrate or one of the convicting justices ; but no person who shall have been summarily convicted of any such off'ence shall be liable to be further proceeded against by indictment for the same offence. 12. And be it enacted. That every person licensed under this act, who shall be convicted before a police magistrate or two justices acting in and for the division or place in which shall be situated the house kept or theretofore kept by such person of any offence against the tenor of the licence to him granted, shall be liable to the same penalties and punishments in the case of a first, second or third off'ence respectively, to which persons licensed under an act passed in the ninth year of the reign of King George the Fourth, intituled " An Act to re- gulate the granting of Licences to Keepers of Inns, Alehouses, and Victualling Houses in England," are respectively liable on conviction of a first, second or third offence, against the tenor of the licence granted to them under the last-recited STATUTES. 391 act, or as near thereunto as the nature of the case will allow ; and all the provisions of the last-recited act with respect to convictions and penalties for offences against the last-recited act, and the proceedings for enforcing the same, and to the expenses of prosecution and penalties on witnesses for not attending and the recovery and application of penalties, and the proceedings on appeals against convictions, and the award of costs on appeals, and in actions against justices, constables or other persons, for any thing done in execution of the last- recited act, shall be deemed to apply, so far as they are ap- plicable, to convictions for offences against the tenor of the licences granted under this act, and to the proceedings con- sequent thereupon or connected therewith, as if they were herein re-enacted. 13. And be it enacted, That every person keeping any Whenbilliard public billiard table or bagatelle board, or instrument used in playing shall any game of the like kind, whether he be the holder of a i!)*!^^-f victualler's licence or licensed under this act, who shall allow any person to play at such table, board or instrument, after one and before eight of the clock in the morning of any day, or at any time on Sundays, Christmas Day, or Good Friday, or any day appointed to be kept as a public fast or thanks- giving ; and every person holding a victualler's licence who shall allow any person to play at such table, board or instru- ment, kept on the premises specified in such victualler's licence at any time when such premises are not by law allowed to be open for the sale of wine, spirits or beer, or other fer- mented or distilled liquors, shall be liable to the penalties herein provided in the case of persons keeping such public billiard table, bagatelle board or instrument as aforesaid for public use without licence ; and during those times when play at such table, board or instrument, is not allowed by this act, every house licensed under this act, and every billiard room in every house specified in any victualler's licence, shall be closed, and the keeping of the same open, or allowing any person to play therein or thereat, at any of the times or on any of the days during which such play is not allowed by this act, shall be deemed in each case an offence against the tenor of the licence of the person so offending. 14. And be it enacted, That it shall be lawful for all con- Empower- stables and officers of police to enter into any house, room or i"g ^o°- place where any public table or board is kept for playing at visit Ucensed billiards, bagatelle or any game of the like kind, when and houses. so often as such constables and officers shall think proper ; and every person licensed under the said act of the ninth year of the reign of King George the Fourth, or under this act, who shall refuse to admit or who shall not admit any such con- stable or officer of police into such house, room or place shall, on conviction thereof before a police magistrate or any two 392 APPENDIX. Repeal of 16 Car. 2, c. 7. 10 Will. 3 (I.) 9 Anne, c. 14. 11 Anne (I.) 5 & 6 Will. 4, c. 41, and part of 18 Geo. 2, c. 34. Pending ac- tions and in- formations to be, discon- tinued. justices of the peace, be deemed guilty of an offence against the tenor of his licence, whether the same be a billiard licence or a victualler's licence, and in the case of a first, second, third or subsequent offence shall be punished accordingly. 15. And be it enacted, That an act passed in the sixteenth year of the reign of King Charles the Second, and an act passed by the parliament of Ireland in the tenth year of the reign of King William the Third, each of such acts being entitled " An Act against deceitful, disorderly and excessive Gaming," and so much of an act passed in the ninth year of the reign of Queen Anne, and ot an act passed by the parliament of Ire- land in the eleventh year of the same reign, each of such acts being intituled " An Act for the better preventing of excessive and deceitful Gaming," as was not altered by an act passed in the sixth year of the reign of his late majesty, intituled " An Act to amend the Law relating to Securities given for Considerations arising out of gaming, usurious and certain other illegal Transactions," and so much of an act passed in the eighteenth year of the reign of King George the Second, intituled " An Act to explain, amend and make more effectual the Laws in being to prevent excessive and deceitful Gaming, and to restrain and prevent the excessive Increase of Horse Races," as relates to the first-recited act of Queen Anne, or as renders any person liable to be indicted and punished for winning or losing, at play or by betting, at any one time, the sum or value of ten pounds, or within the space of twenty- four hours the sum or value of twenty pounds, shall be re- pealed, except as to any penalties incurred on or before the fifth day of March, in the year one thousand eight hundred and forty-four, for recovering which any suit shall have been commenced before the said fifth day of March, and the pro- ceedings for recovery and application of the same. 16. And be it enacted. That after the passing of this act it shall be lawful for any person or persons against whom any action, bill, plaint or information shall have been sued out, commenced or prosecuted for the recovery of any pecuniary penalty or penalties incurred on or before the day of the passing of this act, under the provisions of any act hereinbe- fore amended or repealed, to apply to the Court in which such action, bill, plaint or information shall have been sued out, commenced or prosecuted, or to any judge of any of the Supe- rior Courts at Westminster, for an order that such action, bill, plaint or information shall be discontinued, upon payment of the costs thereof which were incurred on or before the fifth day of March, in the year one thousand eight hundred and forty-four, such costs to be taxed according to the form of such Court ; and every such Court or judge, upon such ap- plication, shall make such order as aforesaid ; and upon the making such order, and payment or tender of such costs as I STATUTES. 393 aforesaid, such action, bill, plaint or information shall be forthwidi discontinued. 17. And be it enacted. That every person who shall, by Cheating at any fraud or unlawful device or ill practice {b) in playing at or Pl^y. *» °^ with cards, dice, tables or other game, or in bearing a part in obtaining the stakes, wagers or adventures, or in betting on the sides or money by hands of them that do play, or in wagering on the event of ^^^^^ P^^" • • • c 1 tences any game, sport, pastime or exercise, win from any other person to himself, or any other or others, any sum of money or valuable thing, shall be deemed guilty of obtaining such money or valuable thing from such other person by a false pretence {c), with intent to cheat or defraud such person of the same, and, being convicted thereof, shall be punished accord- ingly. 18. And be it enacted, That all contracts or agreements, Wagers not whether by parol or in writing, by way of gaming or wager- recoverable ing, shall be null and void{d) ; and that no suit(e) shall be ^ ^^^" brought or maintained in any court of law or equity for reco- vering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager • shall have been made (/) : provided always, that this enact- ment shall not be deemed to apply to any subscription or contribution, or agreement to subscribe or contribute, for or toward any plate, prize or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime or exer- cise ( g). 19. And whereas many important questions are now tried Proceedings in the form of feiarned issues, by stating that a wager was laid pnderfeigned , ^ ^ .• • ^ ^ J • ^- ^ • ^ • • -.1 issues abo- between two parties interested in respectively maintaining the lished. affirmative and the negative of certain propositions ; but such questions may be as satisfactorily tried without such form {h); be it therefore enacted, That in every case where any court of law or equity may desire to have any question of fact decided (&) This must be in the ante, Part 3, Chap. 3. Game, Reg. \. Bailey, 4: Cox, (/) This should be spe- C. C. 390. cially pleaded, Varney v. (c) Prosecutor entitled to Hickman, 5 C. B. 282. Plea costs under 7 Geo. 4, c. 64, to this effect bad for Gene- s. 23 ; Reg. v. Gardner, Wor- rality , Grizewood v. Blane, 1 1 cester Spr. Ass. 1851 ; S. C. C. B. 538. 17 L. T. 7. ig) This proviso has no (d) Wagers declared void relation to Derby lotteries, in India by the act of the Go- Gatty v. Field, 15 L. J. N. S. vernor in Council, Oct. 10, 408 (Q. B.) 1848. See Ramboll v. Soojum- (h) This form may still be null, 6 Moore's P. C. 314. used ; see Luard v. Butcher, (e) See Varney \. Hickman, 15 L. J. N. S. 187 (C. P.) s5 394 APPENDIX. Appeal to quarter ses- sions. 7 Geo. 4, c. 64. Distress not unlawful for want of form. by a jury, it shall be lawful for such court to direct a writ of summons to be sued out, by such person or persons as such court shall think ought to be plaintiff or plaintiffs, against such person or persons as such court shall think ought to be defendant or defendants therein, in the form set forth in the second schedule to this act annexed, with such alterations or additions as such court may think proper ; and thereupon all the proceedings shall go on and be brought to a close in the same manner as is now practised in proceedings under a feigned issue. 20. And be it enacted, That any person who shall be sum- marily convicted under this act may appeal to the next gene- ral or quarter session of the peace to be holden for the county or place wherein the cause of complaint shall have arisen, provided that such person at the time of the conviction, or within for trj- eight hours thereafter, shall enter into a recogni- zance, with two sufficient securities, conditioned personally to appear at the said session to try such appeal, and to abide the further judgment of the court at such session, and to pay such costs as shall be by the last-mentioned court awarded ; and it shall be lawful for the magistrate or justices by whom such conviction shall have been made to bind over the witnesses who shall have been examined in sufficient recognizances to attend and be examined at the hearing of such appeal ; and that every such witness, on producing a certificate of being so bound, under the hand of the said magistrate or justices, shall be allowed compensation for his or her time, trouble and ex- penses in attending the appeal, which compensation shall be ■ paid in the first instance by the treasurer of the county or place, in like manner as in cases of misdemeanor, under the provisions of an act passed in the seventh year of the reign of King George the Fourth, intituled " An Act for improving the Adminisrration of Criminal Justice in England," and in case the appeal shall be dismissed, and the order or conviction affirmed, the reasonable expenses of all such witnesses attend- ing as aforesaid, to be ascertained by the court, shall be repaid to the said treasurer by the appellant. 21. And be it enacted. That when any distress shall be made for any money to be levied by virtue of the warrant of any justice under this act, the distress shall not be deemed unlawful, nor shall any party making the same be deemed a trespasser, on account of any defect or want of form in the information, summons, warrant of apprehension, conviction, warrant of distress, or other proceeding relating thereto, nor shall such party be deemed a trespasser from the beginning on account of any irregularity which shall be afterwards com- mitted by him, but all persons aggrieved by such defect or irregularity may recover full satisfaction for the special da- STATUTES. 395 mage by an action on the Case in any of her majesty's courts of record. 22. And be it enacted, That no plaintiff shall recover in Plaintiff not any action for any irregularity, trespass or other wrongful *° recover proceeding made or committed in the execution of this act, or of ameTd-^^ in, under or by virtue of any authority hereby given, if tender of sufficient amends shall have been made, by or on behalf of the party who shall have committed such irregularity, trespass or other wrongful proceeding, before such action brought; , and in case no tender shall have been made, it shall be lawful for the defendant in any such action, by leave of the court where such action shall depend, at any time before issue joined, to pay into court such sum of money as he sliall think fit; whereupon such proceeding, order and adjudication shall be had and made in and by such court as in other actions where defendants are allowed to pay money into court 23. And be it enacted, That no action, suit or information, Limitation of or any other proceeding, of what nature soever, shall be actions, brought against any person for anything done or omitted to be done in pursuance of this act, or in the execution of the authorities under this act, unless notice in writing shall be given by the party intending to prosecute such suit, informa- tion or other proceeding, to the intended defendant, one ca- lendar month at least before prosecuting the same, nor unless such action, suit, information or other proceeding shall be brought or commenced within three calendar months next after the act or omission complained of, or in case there shall be a continuation of damage, then within three calendar months next after the doing such damage shall have ceased. 24. And be it enacted, That in Ireland the term "metro- Construction politan police force," and the terms "commissioners of the^ ^^^™^* police of the metropolis," and the terms "metropolitan police district," shall mean and include respectively the Dublin metropolitan police force, the commissioners of police of Dublin metropolis, and the police district of Dublin metro- polis. 25. And be it enacted, That no information, conviction or Conviction, other proceeding before or by any justice or justices under &c. not to be this act shall be quashed or set aside, or adjudged void or in- informality, sufficient, for want of form, or be removed by certiorari into &c. her majesty's court of Queen's Bench. 26. And be it enacted, That this act may be amended or Act may be repealed by any act to be passed in this session of parliament, repealed, &c. 396 APPENDIX. The First Schedule to which, the foregoing Act refers. Form of Warrant. County of > To the constable Whereas it appears to me, J. P., one of the justices of our lady the queen, assigned to keep the peace in the said county, by the information on oath of A. B. of , in the county of , yeoman, that the house ["room" or ''place"] known as \Jiere insert a description of the house, room or place by which it may be readily known and found^, is kept and used as a common gaming house within the meaning of an act passed in the year of the reign of her majesty Queen Victoria, intituled \_here insert the title of this act~\ : This is, therefore, in the name of our lady the queen, to require you, with such assistants as you may find necessary, to enter into the said house [" room" or "place"], and, if necessary, to use force for making such entry, whether by breaking open doors or otherwise, and there diligently to search for all instruments of unlawful gaming which may be therein, and to arrest, search and bring before me, or some other of the justices of our lady the queen assigned to keep the peace within the county of , as well the keepers of the same as also the persons there haunting, resorting and playing, to be dealt with according to law ; and for so doing this shall be your warrant. /. P. (l.s.) Given under my hand and seal at , in the county of , this day of , in the — — year of the reign of . The Second Schedule to which the foregoing Act refers. In the Court of Queen's Bench [" Common Pleas," or " Exchequer," or in any inferior court, as the case may be]. Middlesex to wit, (or such other county as may be directed.'] Whereas J. B. affirms and C. D. denies [here state fully the fact or facts in issue], and the lord chancellor [or such other court, Sfc] is desirous of ascertaining the truth by the verdict of a jury, and both parties pray that the same may be inquired of by the country : Now let the jury, &c. STATUTES. 397 The Third Schedule to which the foregoing Act refers. Form of Licence. At the general licensing annual meeting [^or •' an adjourn- ment of the general annual licensing meeting," or " at a spe- cial petty session"] of her majesty's justices of the peace act- ing for the division \_or "liberty," S^c, as the case may fee], of , in the county of , holden at on the dav of , in the year , for the purpose of granting billiard licences, we being of her majesty's justices of the peace acting for the said county \_or " liberty," Sfc. as the case may be'\, and being the majority of those assembled at the said sessions, do hereby authorize and empower A. L., now dwelling at , in the parish of , to keep a house for public billiard playing at [here specify thehouse~\, provided that he \_or " she"] put and keep up the words "licensed for billiards" legibly printed in some conspicuous place near the door and on the outside of the said house, and do not wil- fully or knowingly permit drunkenness or other disorderly conduct in the said house, and do not knowingly allow the consumption of exciseable liquors therein by the persons re- sorting thereto, and do not knowingly suffer any unlawful games therein, and do not knowingly suffer persons of no- toriously bad character to assemble and meet together therein, and do not open the said house for play or allow any play therein after one and before eight of the clock in the morning, or keep it open or allow any play therein on Sundays, Christ- mas Day, or Good Friday, or on any day appointed for a public fast or thanksgiving, but do maintain good order and rule therein : and this license shall continue in force from the day of next until the • day of then next following, and no longer. Given under our hands and seals on the day and at the place first written. 9 & 10 Vict. Cap. 48. An Act for legalizing Art Unions. Whereas certain voluntary associations have been and may hereafter be formed in various parts of the United Kingdom, under the name of Art Unions, for the purchase of paintings, drawings, or other works of art, to be afterwards allotted and distributed, by chance or otherwise, among the several mem- hers, subscribers or contributors forming part of such associa- tions, or for raising sums of money by subscription or contri- bution, to be allotted and distributed, by chance or otherwise, 398 APPENDIX. Voluntary- associations constituted for the distri- bution of ■works of art by lot deemed legal, pro- vided a royal charter shall have been first obtained, &c. as prizes, amongst the members, subscribers, or contributors forming part of such associations, on the condition, never- theless that such sums of money so allotted and distributed be expended solely and entirely in the purchase of paint- ings, drawings or other works of art, and whereas such allot- ment and distribution of paintings, drawings or other works of art, or of sums of money for their purchase, and the proceedings taken to carry the same into effect may be deemed and taken to come within the provisions of the several acts of parliament passed for the prevention of lotteries, littlegoes, and unlawful games, whereby the members, subscribers, or contributors of such associations as aforesaid, or persons acting under their authority or on their behalf, may be liable or sub- jected to certain pains and penalties imposed by law on persons concerned in lotteries, littlegoes, and unlawful games: and whereas it is expedient that all members of and subscribers and contributors to such voluntary associations as aforesaid, and all persons acting under their authority or on their behalf, so long only as their proceedings are carried on in good faith for the encouragement of the fine arts, shall be discharged and protected from any pains and penalties to which they may have rendered themselves liable, or may hereafter render themselves liable, by reason of any such their proceedings as aforesaid : be it enacted by the queen's most excellent ma- jesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament as- sembled, and by the authority of the same, that all such vo- luntaiy associations as aforesaid, now constituted, or which may hereafter be constituted according to the provisions hereinafter contained, shall be deemed to be lawful associa- tions; and the members of and subscribers and contributors to all such lawful associations, and all persons acting under their authority or on their behalf for the purposes aforesaid, shall be freed and discharged from all pains and penalties, suits, prosecutions and liabilities, to which by law they would be liable but for the passing of this act, as being concerned in illegal lotteries, littlegoes, or unlawful games, by reason of any thing done or which may be done by them or any of them in furtherance of the allotment or distribution, by scheme or otherwise, of paintings, drawings, or other works of art, or of the allotment or distribution of sums of money as prizes to be expended for their purchase: provided always, that a royal charter or charters shall have been first obtained for the in- corporation of any such association, or provided that the deed of partnership, or other instrument or instruments constitut- ing such association, and the rules and regulations relating to the proceedings of such association for such purposes as aforesaid, shall have first been submitted to the consideration and be approved of by a committee of her majesty's most honourable privy council, and a copy thereof deposited with STATUTES. 399 such committee ; and that it shall be expressed in every such charter, deed or instrument, that it shall be lawful for any committee of her Majesty's privy council to whom the con- sideration of art unions shall be referred by her ]Majesty, whenever it shall appear to them that any such association is perverted from the purposes of this act, to certify the fact to her Majesty, and thereupon it shall be lawful for her Majesty to revoke or annul the charter, deed or instrument under which the association so offending shall have been consti- tuted ; and nothing in this act contained shall be deemed to apply to any association whose charter, deed of partnership, or other instrument constituting the same shall have been so revoked or annulled. 2. And whereas an act was passed in the seventh and eighth Indemnity- years of her present Majesty's reign, intituled " An Act to granted by indemnify Persons connected with Art-Unions, and others, ^i* t]\\ against certain Penalties," which act was continued by another August, 1846, act passed in the eighth and ninth years of her present Ma- further ex- jesty's reign, which acts only apply to acts done before the tended to first day of August last passed : and whereas it is expedient ber 1846 that the said indemnity granted as aforesaid should be further continued ; be it therefore enacted, that the indemnity granted as aforesaid shall be extended to the first day of November in the present year, to the same effect as if the said last-recited act had in place of the words " the first day of August one thousand eight hundred and forty-six" contained the words " the first day of November one thousand eight hundred and forty-six." 3. And be it enacted, that this act may be amended or re- Act may be pealed by any act to be passed in this session of parliament amended, &c. 9 & 10 Vict. Cap. 93. An Act for compensating the Families of Persons killed by Accidents. Whereas no action at law is now maintainable against a An action person who by his wrongful act, neglect, or default may have *°.t>6 main- caused the death of another person, and it is oftentimes right at^ainst^anv and expedient that the wrongdoer in such case should be person answerable in damages for the injmy so caused by him : be causingdeath it therefore enacted by the Queen's most excellent Majesty, ^^"^".^^^ °^" by and with the advice and consent of the lords spiritual and notw'lth- ' temporal, and commons, in this present parliament assembled, standing the and by the authority of the same, that whensoever the death death of the of a person shall be caused by wrongful act, neglect, or f^^f^'^ ^" default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to main- tain an action and recover damages in respect thereof, then 400 APPENDIX. Action to be for the benefit of certain relations, and sball be brought by and in the name of ex- ecutor or administra- tor of the de- ceased. Only one ac- tion shall lie, and to he commenced within 12 months. Plaintiff to deliver a full particular of the person for whom such da- mages shall be claimed. Construction of act. Act to take effect after passing, and not to apply to Scotland. Act may be amended, &c. and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. 2. And be it enacted, that every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased ; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought (a); and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before men- tioned parties in such shares as the jury by their verdict shall find and direct. 3. Provided always and be it enacted, that not more than one action shall lie for and in respect of the same subject matter of complaint: and that every such action shall be commenced within twelve calendar months after the death of such deceased person. 4. And be it enacted, that in every such action the plaintiff on the record shall be required, together with the declaration, to deliver to the defendant or his attorney a full particular of the person or persons for whom and on whose behalf such action shall be brought, and of the nature of the claim in respect of which damages shall be sought to be recovered. 5. And be it enacted, that the following words and expres- sions are intended to have the meanings hereby assigned to them respectively, so far as such meanings are not excluded by the context or by the nature of the subject matter ; that is to say, words denoting the singular number are to be under- stood to apply also to a plurality of persons or things ; and words denoting the masculine gender are to be understood to apply also to persons of the feminine gender ; and the word "persons" shall apply to bodies politic and corporate ; and the word "parent" sball include father and mother, and grandfather and grandmother, and stepfather and stepmother; and the word "child" shall include son and daughter, and grandson and granddaughter, and stepson and stepdaughter. 6. And be it enacted, that this act shall come into operation from and immediately after the passing thereof, and that nothing therein contanied shall apply to that part of the united kingdom called Scotland. 7. And be it enacted, that this act may be amended or re- pealed by any act to be passed in this session of parliament. (a) Blake v. Midland Railway Company, 21 L. J. 233 (Q. B.), ante, 249. STATUTES. 401 11 & 12 Vict. Cap. 29. An Act to enable Persons having a Right to kill Hares in England and Wales to do so, by themselves or Per- sons authorized by them, without being required to take out a Game Certificate. Whereas by an act passed in the forty-eighth year of the reign of King George the Third, intituled " An Act for re- 48 Geo. 3, pealing the Duties of Assessed Taxes, and granting new ^- ^^• Duties in lieu thereof, and certain additional Duties to be consolidated therewith, and also for repealing the Stamp Duties on Game Certificates, and granting new Duties in lieu thereof, to be placed under the iNIanagement of the Commis- sioners for the Affairs of Taxes," and by an act passed in the fifty-second year of the reign of the said King George the Third, intituled " An Act for granting to his Majesty certain 52 Geo. 3, new and additional Duties of Assessed Taxes, and for conso- ^' ^^• lidating the same with the former Duties of Assessed Taxes," and by an act passed in the third year of the reign of her present majesty, intituled " An Act for granting to her Ma- 3 & 4 Vict, jesty Duties of Customs, Excise and Assessed Taxes," certain ^- ^^• duties of assessed taxes were granted to her majesty the queen upon, amongst other things, every person who shall use any dog, gun, net or other engine for the purpose of taking or killing any game whatever, or shall assist in any manner in the taking or killing of any game : And whereas by divers laws now in force penalties are imposed on all persons taking or killing, or assisting in the taking or killing of, amongst other things, any game whatever, who shall not have obtained a certificate of the due payment of such duties : And whereas it has been found that much damage has been and is con- tinually done by hares to the produce of inclosed lands, and that great losses have thereby accrued and do accrue to the occupiers of such lands ; and it is expedient that persons in the actual occupation of such inclosed lands, or the owners thereof, who have the right of killing game thereon, should be allowed to take, kill and destroy hares thereon, without the payment of the said duties of assessed taxes, and without the incurring of any of the penalties above mentioned ; be it therefore enacted by the queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the 'same. That from and after the Persons in passing of this act it shall be lawful for any person, being in ^}}^ occupa- the actual occupation of any inclosed lands, or for any owner closed thereof who has the right of killing game thereon, by himself ground, and or by any person directed or authorized by him in writing, in certain 402 APPENDIX. cases owners, may kill hares without a game certifi- cate. Authority to kill hares to be limited to one person at the same time in any one parish ; which au- thority shall be sent to the clerk of the petty sessions who shall register the same. If authority revoked no- tice to be given of the same. Persons not to be liable to tax on game- keepers. To extend to coursing or hunting. Not to au- thorize the laying of poison. Agreements reserving game to be still in force. according to the form in the schedule to this act annexed, or to the like eflfect, so to do, to take, kill or destroy any hare then being in or upon any such inclosed lands, without the payment of any such duties of assessed taxes as aforesaid, and without the obtaining of an annual game certificate. 2. Provided always, and be it enacted, That no owner or occupier of land as aforesaid shall be authorized to grant or continue, under the provisions of this act, authority to more than one person, at one and the same time, to kill hares upon his land within any one parish ; and that he shall deliver the said authority, or a copy thereof, or cause the same to be delivered, to the clerk of the magistrates acting for the petty sessions division within which the said lands are situate, who shall forthwith register the same, and the date of such regis- tration, in a book to be kept by him for such purpose, which book shall be at all reasonable times open to the inspection of the clerk of the commissioners acting in the execution of the acts for assessed taxes, or of any of the collectors of as- sessed taxes within such district; and the said authority, so soon as it shall have been registered as aforesaid, shall be held good until after the first day of February in the year following that within which the same is granted, unless the same be previously revoked, and notice of such revocation be given to the clerk of the magistrates as aforesaid ; and the said registered authority, or the unrevoked register thereof, shall be good and sufficient evidence of the right of the person to whom authority is given by the same to kill hares upon the lands mentioned within the same without having obtained an annual game certificate. 3. And be it enacted. That no person so directed or autho- rized to kill any hare as aforesaid, shall, unless otherwise charge- able, be liable to any duties of assessed taxes as gamekeeper. 4. And be it enacted, That from and after the passing of this act it shall be lawful for any person to pursue and kill or to join in the pursuit and killing of any hare by coursing with greyhounds, or by hunting with beagles or other hounds, without having obtained an arniual game certificate. 5. Provided also, and be it enacted. That nothing herein contained shall extend or be taken or construed to extend to the making it lawful for any person, with intent to destroy or injure any hares or other game, to put or cause to be put any poison or poisonous ingredient on any ground, whether open or inclosed, where game usually resort, or in any highway, or for any person to use any fire-arms or gun of any description, by night, for the purpose of killing any game or hares. 6. Provided also, and be it enacted. That where any tenant of any land for life or lives, years, or otherwise, now is or here- after shall be bound by any agreement not to take, kill or destroy any game upon any lands included in such agreement, STATUTES. 403 then and in all such cases nothing herein contained shall ex- tend or be taken or construed to extend to authorize or em- power such tenant to take, kill or destroy any hare upon any such lands so included in such agreement, or to authorize any other person to kill or destroy any hare upon any such land>!. 7. And be it enacted. That in the interpretation of this act Interpreta- the singular number shall extend to several persons and things ^^^^ '^^ ^^^' as well as to one person or thing; and any word importing the plural number shall apply to one person or thing as well as to several persons or things ; and every word importing the masculine gender only shall extend to a female as well as a male ; and that the word "agreement" shall include any co- venant, proviso, promise, undertaking, condition or reserva- tion ; and that the word "parish" shall include any hamlet, township, tithing or extra- parochial place; and for the pur- poses of this act the word " night" shall be considered and is hereby declared to commence at the expiration of the first hour^fter sunset, and to conclude at the beginning of the last hour before sunrise, 8. And be it enacted, That this act shall extend to that part To extend to of the United Kingdom called England and Wales. wfronf"^ 9. And be it enacted. That this act may be amended or ^ ^ repealed by any act to be passed during the present session amended &c. of parliament. Schedule. I, A. B., do authorize C. D. to kill hares on ["my lands," or " the lands occupied by me," as the case may beA^, within the of [Jiere insert the yuime of the parish or other place, as the case may fee]. Dated this day of [^here insert the day, month and year^. Witness. A. B. 14 & 15 Vict. Cap. 99. An Act to amend the Law of Evidence. Whereas it is expedient to amend the law of evidence in divers particulars: be it therefore enacted by the queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons in this pre- sent parliament assembled, and by the authority of the same, as follows : 1. So much of section one of the act of the sixth and seventh Recited pro- years of her present majesty, chapter eighty-five, as provides J^l^y^ v^' ^ °^ that the said act shall " not render competent any party to ^ 35 re- any suit, action, or proceeding individually named in the record, pealed. 404 APPENDIX. Parties to be admissible witnesses. Nothing herein to compel per- son charged with criminal offence to give evidence tending to criminate himself, &c. Not to apply- to proceed- ings in con- sequence of adultery, &c. Nothing to repeal any provisions of 7 Will. 4 & 1 Vict. c. 26. Common law courts au- thorized to compel in- spection of documents whenever equity would grant dis- covery. or any lessor of the plaintiff, or tenant of premises sought to be recovered in ejectment, or the landlord or other person in whose right any defendant in replevin may make cognizance, or any person in whose immediate and individual behalf any action may be brought or defended, either wholly or in part," is hereby repealed. 2. On the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action or other proceeding in any court of justice, or before any person hav- ing by law, or by consent of parties, authority to hear, receive and examine evidence, the parties thereto, and the persons in whose behalf any such suit, action or other proceeding may be brought or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence, either viva voce or by deposition, according to the practice of the court, on behalf of either or any of the parties to the said suit, action or other proceeding. 3. But nothing herein contained shall render any person who in any criminal proceeding is charged with the commis- sion of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evi- dence for or against himself or herself, or shall render any person compellable to answer any question tending to crimi- nate himself or herself, or shall in any criminal proceeding render any husband competent or compellable to give evi- dence for or against his wife, or any wife competent or com- pellable to give evidence for or against her husband. 4. Nothing herein contained shall apply to any action, suit, proceeding or bill in any court of common law, or in any ecclesiastical court, or in either house of parliament, instituted in consequence of adultery, or to any action for breach of pro- mise of marriage. 5. Nothing herein contained shall repeal any provision con- tained in chapter twenty-six of the statute passed in the ses- sion of parliament holden in the seventh year of the reign of King William the Fourth and the first year of the reign of her present majesty. 6. Whenever any action or other legal proceeding shall henceforth be pending in any of the superior courts of com- mon law at Westminster or Dublin, or the court of common pleas for the county palatine of Lancaster, or the court of pleas for the county of Durham, such court and each of the judges thereof may respectively, on application made for such purpose by either of the litigants, compel the opposite party to allow the party making the application to inspect all documents in the custody or under the control of such oppo- site party relating to such action or other legal proceeding, and, if necessary, to take examined copies of the same, or to procure the same to be duly stamped, in all cases in which STATUTES. 405 previous to the passing of this act a discovery might have been obtained by filing a bill or by any other proceeding in a court of equity at the instance of the party so making appli- cation as aforesaid to the said court or jvidge. 7. All proclamations, treaties and other acts of state of any Foreign and foreign state or of any British colony, and all judgments, de- colonial acts crees, orders, and other judicial proceedings of any court of f^jo-ment justice in any foreign state or in any British colony, and all &ct provable affidavits, pleadings and other legal documents tiled or depo- by certified sited in any such court, may be proved in any court of justice, copies, with- er before any person having by law or by consent of parties seal or si^rna- authority to hear, receive and examine evidence, either by ture or ju- examined copies or by copies authenticated as hereinafter dicial charac- mentioned ; that is to say, if the document sought to be proved si^nineThe'^ be a proclamation, treaty or other act of state, the authenti- same. Gated copy to be admissible in evidence must purport to be sealed with the seal of the foreign state or British colony to which the original document belongs ; and if the document sought to be proved be a judgment, decree, order or other judicial proceeding of any foreign or colonial court, or an affi- davit, pleading, or other legal document filed or deposited in any such court, the authenticated copy to be admissible in evidence must purport either to be sealed with the seal of the foreign or colonial court to which the original document be- longs, or, in the event of such court having no seal, to be signed by the judge, or, if there be more than one judge, by any one of the judges of the said court, and such judge shall attach to his signature a statement in writing on the said copy that the court whereof he is a judge has no seal ; but if any of the aforesaid authenticated copies shall purport to be sealed or signed as hereinbefore respectively directed, the same shall ^ respectively be admitted in evidence in every case in which the original document could have been received in evidence, without any proof of the seal where a seal is necessary, or of the signature, or of the truth of the statement attached thereto, where such signature and statement are necessary, or of the judicial character of the person appearing to have made such signature and statement. 8. Every certificate of the qualification of an apothecary Apothecaries' which shall purport to be under the common seal of the certificates society of the art and mystery of apothecaries of the city of admissible London shall be received in evidence in any court of justice, ^^ gg^j and before any person having by law or by consent of parties authority to hear, receive and examine evidence, without any proof of the said seal or of the authenticity of the said certi- ficate, and shall be deemed sufficient proof that the person named therein has been from the date of the said certificate duly qualified to practise as an apothecary in any part of England or Wales. 406 APPENDIX. Documents admissible in England or Wales equally ad- missible in Ireland. Documents admissible in Ireland equally ad- missible in England and Wales. 9. Every document which by any law now in force or here- after to be in force is or shall be admissible in evidence of any ^'seal^ &c°'' particular in any court of justice in England or Wales with- out proof of the seal or stamp or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same, shall be admitted in evi- dence to the same extent and for the same purposes in any court of justice in Ireland, or before any person having in Ireland by law or by consent of parties authority to hear, receive and examine evidence, without proof of the seal or stamp or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same. 10. Every document which by any law now in force or hereafter to be in force is or shall be admissible in evidence of of sea" &c°° ^"y particular in any court of justice in Ireland without proof of the seal or stamp or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same, shall be admitted in evi- dence to the same extent and for the same purposes in any court of justice in England or Wales, or before any person having in England or Wales by law or by consent of parties authority to hear, receive and examine evidence, without proof of the seal or stamp or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same. 11. Every document which by any law now in force or hereafter to be in force is or shall be admissible in evidence ■without proof ^^ ^j^y particular in any court of justice in England or Wales in England' or Ireland without proof of the seal or stamp or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same, shall be admitted in evidence to the same extent and for the same purposes in any court of justice of any of the British colonies, or before any person having in any of such colonies by law or by consent of parties authority to hear, receive and examine evidence, without proof of the seal or stamp or signature au- thenticating the same, or of the judicial or official character of the person appearing to have signed the same. 12. Every register of a vessel kept under any of the acts relating to the registry of British vessels may be proved in any court of justice, or before any person having by law or by consent of parties authority to hear, receive and examine evidence, either by the production of the original or by an examined copy thereof, or by a copy thereof purporting to be certified under the hand of the person having the charge of the original, and which person is hereby required to furnish such certified copy to any person applying at a reasonable time for the same, upon payment of the sum of one shilling ; Documents admissible Wales or Ireland equally ad- missible in the Colonies Registers of British ves- sels and cer- tificates of registry ad- missible as prima facie evidence of their con- tents, with- out proof of signature, &c. STATUTES. 407 and every such register or such copy of a register, and also every certificate of registry, granted under any of the acts re- lating to the registry of British vessels, and purporting to be signed as required by law, shall be received in evidence in any court of justice, or before any person having by law or by con- sent of parties authority to hear, receive and examine evidence, diS prima facie proof of all the matters contained or recited in such register when the register or such copy thereof as afore- said is produced, and of all the matters contained or recited in or endorsed on such certificate of registry when the said certificate is produced. 13. And whereas it is expedient, as far as possible, to "Wliere neces- reduce the expense attendant upon the proof of criminal pro- convictfon m ceedings: be it enacted. That whenever in any proceeding acquittal whatever it may be necessary to prove the trial and conviction of person or acquittal of any person charged with any indictable charged, not . J V o •' nccGss3.rv to offence, it shall not be necessary to produce the record of produce re- the conviction or acquittal of such person, or a copy thereof, cord, but but it shall be sufficient that it be certified or purport to be ""^^^^^ ^f^' certified under the hand of the clerk of the court or other j^^^^ of'cfe'rk officer having the custody of the records of the court where of court, such conviction or acquittal took place, or by the deputy of such clerk or other officer, that the paper produced is a copy of the record of the indictment, trial, conviction and judg- ment or acquittal, as the case may be, omitting the formal parts thereof. 14. Whenever any book or other document is of such a Examined or public nature as to be admissible in evidence on its mere ^opjeg of production from the proper custody, and no statute exists documents which renders its contents provable by means of a copy, any admissible in copy thereof or extract therefrom shall be admissible in evi- evidence, dence in any court of justice, or before any person now or hereafter having by law or by consent of parties authority to hear, receive and examine evidence, provided it be proved to be an examined copy or extract, or provided it pui'port to be signed and certified as a true copy or extract by the officer to whose custody the original is intrusted, and which officer is hereby required to furnish such certified copy or extract to any person applying at a reasonable time for the same, upon payment of a reasonable sum for the same, not exceeding four pence for every folio of ninety words. 15. If any officer authorized or required by this act to Certifying a furnish any certified copies or extracts shall wilfully certify -^^^^ a°mis- any document as being a true copy or extract, knowing that demeanor, the same is not a true copy or extract, as the case may be, he shall be guilty of a misdemeanor, and be liable, upon conviction, to imprisonment for any term not exceeding eighteen months. „ 16. Every court, judge, justice, officer, commissioner, arbi- m^^'^adm'i- trator, or other person, now or hereafter having by law or by nister oaths. 408 APPENDIX. Persons forging seal, stamp or sig- nature of cer- tain docu- ments, or wil- fully uttering same, guQty of felonv. Act not to extend to Scotland. Interpreta- tion of " British Colony." Commence- ment of act. consent of parties authority to hear, receive and examine evidence, is hereby empowered to administer an oath to all such witnesses as are legally called before them respectively. 17. If any person shall forge the seal, stamp or signature of any document in this act mentioned or referred to, or shall tender in evidence any such document with a false or counter- feit seal, stamp or signature thereto, knowing the same to be false or counterfeit, he shall be guilty of felony, and shall upon conviction be liable to transportation for seven years, or to imprisonment for any term not exceeding three years, nor less than one year, with hard labour ; and whenever any such document shall have been admitted in evidence by virtue of this act, the court or the person who shall have admitted the same may, at the request of any party against whom the same is so admitted in evidence, direct that the same shall be im- pounded and be kept in the custody of some officer of the court or other proper person for such period and subject to such conditions as to the said court or person shall seem meet ; and every person who shall be charged with committing any felony under this act, or under the act of the eighth and ninth years of her present Majesty, chapter one hundred and thirteen, may be dealt with, indicted, tried, and, if convicted, sentenced, and his oflence may be laid and charged to have been com- mitted, in the county, district or place in which he shall be apprehended or be in custody ; and every accessory before or after the fact to any such offence may be dealt with, indicted, tried, and, if convicted, sentenced, and his offence laid and charged to have been committed, in any county, district, or place in which the principal offender may be tried. 18. This act shall not extend to Scotland. 19. The words " British colony" as used in this act shall, apply to all the British territories under the government of the East India Company, and to the Islands of Guernsey, Jersey, A Iderney, Sark, and Man, and to all other possessions of the British crown, wheresoever and whatsoever. 20. This act shall come into operation on the first day of November in the present year. 16 & 17 Vict. Cap. 83. An Act to amend an Act of the Fourteenth and Fifteenth Victoria, Chapter Ninety-nine. Whereas the law touching evidence requires further amend- ment : Be it therefore declared and enacted by the queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this pre- STATUTES. 409 sent Parliament assembled, and by the authority of the same, as follows : 1. On the trial of any issue joined, or of any matter or Husbands question, or on any inquiry arising in any suit, action, or ^"^^ wives of other proceeding in any court of justice, or before any person ^^!l\ssible ^ having by law, or by consent of parties, authority to hear, re- witnesses: ceive, and examine evidence, the husbands and wives of the parties thereto, and of the persons in whose behalf any such suit, action, or other proceeding, may be brought or instituted, or opposed or defended, shall, except as herein-after ex- cepted, be competent and compellable to give evidence, either viva voce or by deposition according to the practice of the court, on behalf of either or any of the parties to the said suit, action, or other proceeding. 2. Nothing herein shall render any husband competent or except in cri- compellable to give evidence for or against his wife, or any minal cases wife competent or compellable to give evidence for or against ^^^ in cases her husband, in any criminal proceeding, or in any proceeding instituted in consequence of adultery. 3. No husband shall be compellable to disclose any com- Husbands munication made to him by his wife during the marriage, and andwivesnot no wife shall be compellable to disclose any communication ^^"close corn- made to her by her husband during the marriage. munications. 4. So much of section one of the act passed in the session go much of of Parliament holden in the sixth and seventh years of her section 1 of present majesty, chapter eighty-five, as provides that the said ^ ^ J ^^^^■ act shall not render competent the husband or wife of any j^tes'to hus- party to any suit, action, or proceeding individually named in bands and the record, or of any lessor of the plainlifi", or of the tenant of wives, re- premises sought to be recovered in ejectment, or of the land- P^^^^'^* lord or other person in whose right any defendant in replevin may make cognizance, or of any lessor in whose immediate and individual behalf any action may be brought or defended, either wholly or in part, is hereby repealed. 5. In citing this act in other acts of Parliament, or in any Short title, instrument, document, or proceeding, it shall be sufficient to use the expression, "The Evidence Amendment Act, 1853." 6. This act shall commence on the eleventh day of July, Commence- one thousand eight hundred and fifty-three. ™^°* °^ ^^** 16 & 17 Vict. Cap. 33. An Act for the better Regulation of Metropolitan Stage and Hackney Carriages, and for prohibiting the Use of advertising Vehicles. "Whereas it is desirable to improve the condition of the metropolitan stage and hackney carriages, and to alter and T 410 APPENDIX. Persons de- sirous of ob- taining a li- cence to keep a hackney carriage, &c., to make ap- nlication to commission- ers of police, who, if car- riage is found fit, shall grant a certificate. No licence to be granted by board of in- land revenue ■without such certificate. Commission- ers of police may cause carriages, &c. to be inspect- ed, and if not in fit condi- tion may sus- pend licences and recall stamp office plate. Notice to be given to in- land reve- nue. amend the system of licensing such carriages: be it therefore enacted by the queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that — 1. From and after the first day of October next every person desirous of obtaining a licence to keep, use, and let to hire any metropolitan stage or hackney carriage (a) within the limits of this act (6) must apply in writing to the commis- sioners of police of the metropolis, in order that they may cause an inspection to be made of every carriage to be kept, used, or let to hire by virtue of such licence, and upon such application the said commissioners shall cause an inspection to be made of every such carriage, and if such carriage or carriages shall be found by the said commissioners to be in a fit and proper condition for public use, they shall grant a cer- tificate to that effect, and shall specify in such certificate the number of persons to be carried in and by such carriage, in the form given in schedule (B) to this Act annexed, and upon production of such certificate at the office of the board of inland revenue, a licence shall be granted ; but it shall not be lawful for the said board of inland revenue to grant or issue any licence for any metropolitan stage or hackney carriage, within the limits of this act, unless the person applying for the same shall produce such certificate as aforesaid. 2. It shall be lawful for the said commissioners of police to cause an inspection to be made, as often as they deem it ne- cessary, of all metropolitan stage and hackney carriages, and of the horse or horses used in drawing the same, within the limits of this act ; and if any such carriage, or the horse or horses used in drawing the same, shall at any time be in a condition unfit for public use, the said commissioners shall give notice in writing accordingly to the proprietor thereof, which notice shall be personally served on such proprietor, or delivered at his usual place of residence ; and if, after notice as aforesaid, any proprietor shall use or let to hire such car- riage as a metropolitan stage or hackney carriage, or use or let to hire such horse or horses whilst in a condition unfit for public use, the said commissioners shall have power to sus- pend, for such time as they may deem proper, the licence of the proprietor of such carriage, and to recall and take away the stamp office plate belonging to the same, and to retain the same during the suspension of such licence ; and a notice shall be given to the board of inland revenue, according to the form in the schedule (C) to this act annexed, in every case' (a) See 6 & 7 Vict. c. 86, s. 2. {b) See post, s. 20; 16 & 17 Vict. c. 127, s. 13, Appendix. STATUTES. 411 by the said commissioners of the suspension of any such licence, and of the time for which it is suspended. 3. Every proprietor or driver of a metropolitan stage or Penalty for hackney carriage who shall use or let to hire within the limits using car- of this act any carriage as a metropolitan stage or hackney ^J^^^ "dt'on carriage which has not been certified by the said commissioners of police to be in a fit and proper condition for public use, or who shall use or let to hire within the limits of this act any carriage as a metropolitan stage or hackney carriage for which such a certificate had been granted, after notice given to him as hereinbefore required by the said commissioners that such carriage was no longer in a fit and proper condition for public use, shall be liable to a penalty not exceeding Three pounds for each day that he shall so use or let to hire such carriage, or in default of payment may be imprisoned for any time not exceeding one month. 4. The proprietor or driver of any hackney carriage within As to rates the limits of this act shall be entitled to demand and take for ^^ fares to the hire of such carriage the fares set forth in the schedule (A) hackney ear- to this act annexed: Provided always, that when the proprie- riages. tor or driver of any hackney carriage to be paid a fare calcu- lated according to the distance shall be required by the hirer thereof to stop such carriage for fifteen minutes, or for any longer time, it shall be lawful for the proprietor or driver to demand and receive fi-om the hirer so requiring him to stop a further sum (above the fare to which he shall be entitled, calculated according to the distance) of sixpence for every fifteen minutes completed that he shall have been so stopped (c); and no proprietor or driver shall demand or receive over and No back fare above the said fare any sum, for or by way of back fare, for to be taken the return of such carriage from the place at which such car- or demanded, riage shall be discharged (d). 5. The proprietor of every hackney carriage within the Table of fares limits of this act shall put up, and at all times keep, distinctly to be put up painted or marked, in such a manner and in such a position distinctly in- 1 11 1 T 11 1 -1 • • p T L ^1 side and out- as shall be dnected by the said commissioners oi police, both side of hack- on the inside and outside of such hackney carriage, the ney car- amount of fare according to distance and time which may "ages, legally be demanded and taken from the hirer of such car- riage ; and the driver of every hackney carriage within the Driver to pro- limits of this act shall have with him at all times when plying duce book of for hire a book or table in such form as shall be directed by fares -when the said commissioners of police of the fares for the hire of such carriage, which book or table the driver shall produce when required for the information of any person hiring or in- tending to hire such carriage. (c) See post, s. 7. {d) See 16 & 17 Vict. c. 127, s. 13, Appendix. T 2 412 APPENDIX. As to settle- ment of dis- putes as to distances. As to dis- tance drivers of hackney carriages shall be re- quired to drive. Driver to de- liver a ticket to hirer of carriage. Xumber of persons to be carried to be painted or marked on hackney car- riage. 6. In case of disputes as to the fare to be calculated accord- ing to the distance, any table or book signed by the said com- missioners of police shall, on proof of such signature, be deemed and taken to be conclusive evidence of all the dis- tances therein stated to have been measured by the authority of the said commissioners of police ; and it shall be lawful for the said commissioners to cause to be placed or erected at the several standings for hackney carriages or elsewhere within the metropolitan district, as they may deem convenient, tables of distances and fares, and such other information as may be useful to persons hiring such carriage. 7. The driver of every hackney carriage which shall ply for hire (e) at any place within the limits of this act shall (unless such driver have a reasonable excuse, to be allowed by the justice before whom the matter shall be brought in question,) drive such hackney carriage to any place to which he shall be required by the hirer thereof to drive the same, not exceeding six miles from the place where the same shall have been hired (/), or for any time not exceeding one hour from the time when hired : Provided always, that when any hackney carriage shall have been hired by time, the driver thereof may be required to drive at any rate not exceeding four miles within one hour, and if the driver of such carriage shall be required to drive more than four miles within one hour, then in every such case the driver thereof shall be entitled to demand, in addition to the fare regulated by time in schedule (A) to this act annexed, for every mile or any part thereof exceeding four miles, the fare regulated by distance as set forth in the same schedule. 8. Every driver of a hackney carriage within the limits of this act shall, on each occasion when such carriage shall be hired, deliver to the hirer thereof a card, on which shall be printed, in legible letters and figures, the words " hackney carriage," and the number of the stamp office plate fixed on such hackney carriage, or such other words or figures as the said commissioners of police may direct (^). 9. The proprietor of every hackney carriage within the limits of this act shall put up and at all times keep distinctly painted or marked on such carriage, in such a manner and in such a position as shall be directed by the said commissioners of police, the number of persons to be carried thereby as spe- cified in the certificate granted by the said commissioners for such hackney carriage, and the driver of any such hackney carriage shall, if required by the hirer thereof, carry in and by (e) See 1 & 2 Will. 4, c. 22, s. 35. (/) See 16 & 17 Vict. c. 127, s. 13, Appendix. (g) See post, s. 17. STATUTES. 413 such carriage the number of persons painted or marked there- on, or any less number of persons. 10. The driver of every hackney carriage within the limits As to quan- of this act shall carry in or upon such carriage a reasonable t^^y of lug- quantity of luggage for every person hiring such carriage famed wUh without any additional charge, except as provided in Sche- out extra dule (A) to this act annexed. charge. 11. The driver of every hackney carriage within the limits Property left of this act wherein any property shall be left by any person in hackney shall within twenty-four hours carry such property, if not carnages to sooner claimed by the owner thereof, in the state in which he at the police shall find the same, to the nearest police station, and shall office. there deposit and leave the same with the inspector or other officer on duty, upon pain that every such driver making any Penalty on default herein shall be liable to a penalty not more than Ten driver for pounds, or at the discretion of the magistrate may be impri- ^^efault. soned for any time not exceeding one month ; and the said officer with whom any such property shall be deposited shall forthwith enter in a book to be kept for that purpose the description of such property, and the name and address of the driver who shall bring the same, and the day on which it shall be brought ; and the property so entered shall be re- turned to the person who shall prove, to the satisfaction of the commissioners of police, that the same belonged to him, such person previously paying all expenses incurred, together with such reasonable sum to the driver who brought the same as the said commissioners shall award : Provided always, that if Property not such property shall not be claimed by and proved to belong claimed to be to some person within one year after the same shall have been •^^^P^^^'^ °f' deposited, the said commissioners shall cause such property to be sold or otherwise disposed of, and the proceeds thereof to be paid over to the receiver-general of inland revenue, to be carried to the public account, all expenses incurred about such property, together with such reasonable sum to the driver who brought the same as the said commissioners shall award, being first paid thereout ; and all property left by any passenger in Penalty on any metropolitan stage carriage shall be given up to the con- neo1ectfn°^to ductor of such carriage, or, if there be no conductor, to the give up pro- driver, upon pain of a penalty of Ten pounds, to be paid by party left in any person refusing or neglecting to give up any such pro- stage car- per ty belonging to another person ; and the conductor or ^ ^ ' driver of every such carriage to whom any such property shall be given up, or who shall himself find it in the carriage, shall within twenty-four hours carry the property, if not sooner claimed by the owner thereof, in the state in which he shall find the same to the nearest police station, and shall there deposit and leave the same with the inspector or other officer on duty, upon pain that every such driver or conductor making default herein shall be liable to a penalty not more 414 APPENDIX. Commission- ers of police to appoint persons to enforce good order at hackney carriage stands, &c. Power to commission- ers, with consent of treasury, to pay wages to such per- sons, and also to direct water rates to be paid. Lamps to be placed inside metropolitan stage car- riages. Printed bills, &c. not to be put on metropolitan stage or hackney carriages, so as to obstruct light, &c. than Ten pounds, or at the discretion of the magistrate may be irnprisoned for any time not exceeding One month ; and the property so deposited by any conductor or driver shall be dealt with in the same manner as property left in hackney carriages and deposited by the drivers of such carriages. 12. It shall be lawful for the said commissioners of police, from time to time to appoint a sufficient number of fit men to enforce good order at the standings for hackney carriages (h) and at the places at which metropolitan stage carriages or hackney carriages shall call or ply for passengers, and at such places of public resort within the metropolitan police district, as they may deem necessary ; and the said commissioners may from time to time make such orders and regulations as they shall deem expedient, subject to the approval of one of her majesty's principal secretaries of state given in writing rela- tive to the duties to be performed by such persons and the places at which each shall act ; provided that the said com- missioners shall not have authority to appoint any such person to act within or upon the premises belonging to any railway company unless with the consent of the directors of the com- pany. 13. The said commissioners of police, subject to the appro- bation of the commissioners of her majesty's treasury, shall appoint wages to be paid to the said persons appointed by them to keep good order at the standings for hackney carriages and at the places at which metropolitan stage carriages or hackney carriages shall call or ply for passengers, and at such places of public resort as they may deem necessary ; and the said commissioners shall also, in such cases as they think fit, direct the water-rates and the expenses of the necessary apparatus for laying on the water at the standings for hackney carriages and at places where metropolitan stage carriages usually call or ply for hire, to be paid. 14. The proprietor of every metropolitan stage carriage shall cause to be placed inside such carriage, a lamp, in such a position and manner as shall be directed by the said com- missioners of police ; and the conductor, or if there be no conductor, the driver of such carriage shall keep the said lamp properly lighted whenever such carriage shall be used to ply for hire or carry passengers at any time after sunset and before sunrise. 15. It shall not be lawful for the proprietor of any metro- politan stage or hackney carriage to sufier any notice, adver- tisement, or printed bill, or any names, letters or numbers, to appear upon the outside of any such carriage, in such a man- ner as to obstruct the light or ventilation of such carriage, or on the inside of any such carriage, in such a position that any (h) See 13 Vict c. 7, s. 4. STATUTES. 415 such notice, advertisement or printed bill shall obstruct the light or ventilation of such carriage or cause annoyance to any passenger therein. 16. It shall not be lawful for any person to carry about on Advertising any carriage or on horseback or on foot in any thoroughfare vehicles, &c. or public place within the limits of this act, to the obstruction P'^o'^i'^^^^'^' or annoyance of the inhabitants or passengers, any picture, placard, notice or advertisement, whether written, printed or painted upon or posted or attached to any part of such car- riage or on any board or otherwise. 17. The driver or conductor of any metropolitan stage car- Drivers and riage or the driver of any hackney carriage, who shall respec- „? metron'o- tively commit any of the following offences within the limits litan stage of this act, shall be liable to a penalty not exceeding Forty carriages, sliillings for each offence, or in default of payment, to im- ^"^ drivers prisonment for any time not exceeding one calendar month («) : carriao-es 1. Every driver of a hackney carriage who shall demand liable to or take more than the proper fare as set forth in sche- penalties for dule (A) to this act annexed, or who shall refuse to wgwf^ admit and carry in his carriage the number of persons named, painted or marked on such carriage or specified in the certificate granted by the said commissioners of police in respect of such carriage, or who shall refuse to carry by his carriage a reasonable quantity of luggage for any person hiring or intending to hire such carriage ; 2. Every driver of a hackney carriage who shall refuse to drive such carriage to any place within the limits of this act (/c), not exceeding six miles, to which he shall be required to drive any person hiring or intending to hire such carriage, or who shall refuse to drive any such carriage for any time not exceeding one hour, if so required by any person hiring or intending to hire such carriage, or who shall not drive the same at a reason- able and proper speed, not less than six miles an hour, except in cases of unavoidable delay, or when required by the hirer thereof to drive at any slower pace ; 3. Every driver of a hackney carriage who shall ply for hire with any carriage or horse which shall be at the time unfit for public use, or who shall refuse or neglect to deliver to the hirer of his carriage, a ticket with the " number of the stamp office plate on such carriage printed thereon, 18. It shall be lawful for any one of the police magis- Power to trates at any of the metropolitan police courts, to hear and police magis- determine all offences a^-ainst the provisions of this act, and E tfLg'^of also all disputes or causes of complaint that may arise out of the peace to hear and (i) See 1 & 2 Will. 4, c. 22, s. 42. determine {k) See 16 & 17 Vict c. 127, s. 17. ottences. 416 APPENDIX. In case of disputes the hirer may require the driver to drive to a police court, &c. or to a police sta- tion. Penalty for offences against this act for which no penalty is appointed. Meaning of certain words used in this act. This act to be construed with 6 & 7 Vict. c. 86, and 13 & 14 Vict. c. 7. Commence- ment of act. the same ; or if the offence, dispute or cause of complaint shall be committed or occur in any place not comprised within the limits of a police court district, the same may be heard and determined by two justices of the peace for the county ; or if the offence, dispute or cause of complaint shall be com- mitted or occur within the city of London, the same shall be heard and determined by one justice of the peace for the said city, or by a metropolitan police magistrate sitting at the police court in Bow Street ; and in case of any dispute between the hirer and driver of any hackney carriage, the hirer may require the driver forthwith to drive to the nearest metropo- litan police court or justice room, where complaint may be made to the magistrate then sitting, who shall hear and de- termine the same, without requiring any summons to be issued for that purpose ; and if such dispute should arise at a time when the police court or justice room shall not be open, the hirer may require the driver to drive to the nearest police station or justice room, where the complaint shall be entered, and notice given to both parties that the matter in dispute shall be heard by the magistrate at his next sitting. 19. For every offence against the provisions of this act, for which no special penalty is hereinbefore appointed, the offender shall be liable to a penalty not exceeding Forty shillings, or in default of payment, be imprisoned for any time not exceeding One month in any gaol or house of correc- tion within the jurisdiction of the magistrate before whom the conviction shall take place. 20. All things herein authorized to be done by the said commissioners of police of the metropolis shall be done by such one of the said commissioners as one of her majesty's principal secretaries of state shall from time to time be pleased to appoint ; and the words "the limits of this act" shall include every part of the metropolitan police district {I) and city of London. 21. This act shall be construed as one act with the act passed in the seventh year of the reign of her majesty queen Victoria, chapter eighty-six, and the act passed in the thir- teenth year of the reign of her majesty, chapter seven ; and all the provisions of the said acts, except so far as is herein otherwise provided, shall extend to this act, and to all things done in execution of this act. 22. This act shall commence and take effect from and after the tenth day of July, one thousand eight hundred and fifty- three, except as herein otherwise specially provided. (0 See 10 Geo. 4, c. 44, s. 4 ; 2 & 3 Vict. c. 47, s. 2 ; 16 & 17 Vict c. 127, s. 17, Appendix. STATUTES. 417 SCHEDULES referred to in the foregoing Act. Rates and Fares to be paid for any Hackney Carriage hired at any Place within the Limits of this Act (a). SCHEDULE (A). Description OF Carriage. Fare by Distance. Fare by Time. For any Distance within and not exceeding One Mile. For any Distance exceeding One Mile. For any Time within and not exceeding One Hour (b). With Four or Two Wheels, drawn by One Horse. 6d. After the Rate of Sixpence for every Mile, and for any Part of a Mile over and above any Num- ber of Miles completed. 2s. And for every Hackney Car- riage drawn by Two Horses, One Third above the Rates and Fares hereinbefore mentioned. The above fares to be paid according to distance or time, at the option of the hirer, to be expressed at the commencement of the hiring ; if not otherwise expressed, the fare to be paid according to distance. Provided, that no driver shall be compellable to hire his carriage for a fare to be paid according to time at any time after eight o'clock in the evening and before six o'clock in the morning. When more than two persons shall be carried inside any hackney carriage, one sum of 6d. is to be paid for the whole hiring in addition to the above fares (c). Two children under ten years of age to be counted as one adult person. When more than two persons shall be carried inside any hackney carriage with more luggage than can be carried inside the carriage, a further sum of two pence for every package carried outside the said carriage is to be paid by the hirer in addi- tion to the above fares. SCHEDULE (B). CERTIFICATE. I, do hereby certify, that on the application of , now living at , I have caused the carriage known by the following marks or description [^here state marks or description by which the carriage may be identified'], to be inspected, which the said desires to use and let to hire as a [metropolitan stage carriage, or as a hackney carriage] ; (a) See 16 & 17 Vict. c. 127, s. 13, Appendix. (6) Ibid. s. 15. (c) Ibid. s. 14. T 5 APPENDIX. and I certify that the said carriage is in a fit and proper con- dition for public use, and that persons are to be carried thereby [f/" the carriage he a metropolitan stage carriage, the number of passengers to he carried inside and outside thereof re- spectively is to he specified, exclusive of the driver and conductor. '\ (Signed) Commissioner of the police of the metropolis. SCHEDULE (C). CERTIFICATE, I, do hereby certify, that I have caused the carriage now used and let to hire as a \_state whether a metropolitan stage or hackney carriage~\, and known by the following marks or description \Jtere state marks or description by which the carriage may he identified'], to be inspected, and find the said carriage not to be in a fit and proper condition for public use ; and I do hereby suspend the licence granted to to keep and use the said carriage as a \_state whether a metropolitan stage or hack- ney carriage] for the period of firom this date. (Signed) Commissioner of the police of the metropolis. Is. a mile to be paid for every mile beyond the circum- ference of a circle four miles from Charing Cross if car- riage be dis- charged beyond such circum- ierence. 16 & 17 Vict. Cap. 127. ^ An Act to reduce the Duties payable in respect of Hack- ney Carriages used in the Metropolis^ and to amend the Laws relating to the granting of Licences and Payment of Duties in respect of Metropolitan Stage and Hackney Carriages, and to make Provision as to the Charge for the Hire of Hackney Caniages in certain Cases. 13. It shall be lawful for the driver of any hackney carriage within the limits of this act to charge One shilling per mile for every mile (or part of a mile) which he shall be required to drive beyond the circumference of a circle the radius of which shall be four miles from Charing Cross, provided such carriage shall be discharged beyond such circumference, any- thing contained in the thirty-third chapter of an act of the sixteenth and seventeenth year of the reign of her present majesty, or in the schedule thereto, notwitlistanding. STATUTES. 419 14. Whenever more than two persons shall be conveyed by Addition to any hackney carriage drawn by one horse only, a sum of Six- the fare to be pence for each person above the number of two shall be paid ^^^^ ^°^ f^'^^ for the whole hiring in addition to the fare now directed to be two. paid for two persons under the said act of the sixteenth and seventeenth year of the reign of her present majesty, chapter thirty-three ; and two children under ten years old shall be considered as one adult person for the purposes of this clause. 15. When any hackney carriage within the limits of this When car- act hired for a fare to be paid according to time shall be hired riage hired or used by the hirer thereof for any longer time than one hour, |>y time, 6d. Sixpence shall be paid for every fifteen minutes, or any por- for every tion of fifteen minutes not completed, above one hour. fifteen 16. The proprietor of every hackney carriage or metropo- minutes, litan stage carriage licensed to ply for hire within the limits thereof "over of this act who shall withdraw his carriage from hire for two the hour, consecutive days, or for any two days in one week, without proprietors just cause, of which the magistrate before whom the complaint of hackney is heard shall be the judge, shall be liable to a penalty of a carriages sum not exceeding Twenty shillings in respect of every car- j^,™ carriaf^es riage for each day he shall so withdraw the same, and the from hire licence of such proprietor shall be suspended or recalled and heyond a taken away at the discretion of the said commissioners of f-^^.^^^Q ™^ police : Provided always, that it shall be lawful for such pro- penalty, prietor, upon giving ten days notice to the commissioners of police, to withdraw his carriage from hire. 17. The limits of this act shall be deemed to be and to in- "The limits elude every part of the metropolitan police district and the of this act" city of London ; and all provisions of any former act in force ^ ^^ ' referring to hackney carriages licensed under the said act of the first and second years of his late majesty, or to hackney carriages kept, used, employed, or let to hire within the dis- tance of five miles from the General Post Office in the city of London, or to any act, matter, or thing committed or done in relation to such hackney carriages within the said distance, shall from and after the passing of this act be deemed to refer and apply to hackney carriages licensed under this act, or to hackney carriages kept, used, employed, or let to hire within the limits of this act, and to any act, matter, or thing com- mitted or done in relation to hackney carriages within the said limits. 420 11 & 12 Vict, c. 107. Penalty on persons bringing glandered horses, &c. into market, or turning them out on uninclosed land. Recited act continued until 1st Sept. 1856, and end of then session appendix. 16 & 17 Vict. Cap. 62. An Act to extend and continue an Act of the Twelfth Year of Her present Majesty, to prevent the spreading of contagious or infectious Disorders among Sheep, Cattle, and other Animals. Whereas an act was passed in the twelfth year of the reign of her majesty (chapter one hundred and seven), for prevent- ing, until the first day of September, one thousand eight hun- dred and fifty, and to the end of the then session of parliament, the spreading of contagious or infectious disorders among sheep, cattle, and other animals : And whereas the said act has by sundry acts been continued until the first day of Sep- tember, one thousand eight hundred and fifty-three, and if parliament be then sitting, then further until the end of the then session of parliament : And whereas it is expedient that the said act should be extended and further continued : Be it therefore enacted by the queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. Any person 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 infected with or la- bouring under the disease called glanders, and any person turning out, keeping, or depasturing any horse or other ani- mal infected with or labouring under any such disease in or upon any forest, chase, wood, moor, marsh, heath, common, waste land, open field, road side, or other undivided or unin- closed land, shall on conviction of any such ofi'ence forfeit and pay any sum not exceeding Twenty pounds ; and the said act shall be read and construed as if this enactment were incor- porated therein, and all the provisions of the said act with respect to the penalties or forfeitures thereby imposed, and the recovery and application thereof, shall be applicable ac- cordingly. 2. The said act as extended by this act shall continue and be in force until the first day of September, one thousand eight hundred and fifty-six, or if parliament be then sitting until the end of the then session of parliament. I STATUTES. 421 16 & 17 Vict. Cap. 119. An Act for the Suppression of Betting Houses. Whereas a kind of gaming has of late sprung up, tending to the injury and demoralization of improvident persons, by the opening of places called betting houses or offices, and the receiving of money in advance by the owners or occupiers of such houses or offices, or by other persons acting on their be- half, on their promises to pay money on events of horse races and the like contingencies : for the suppression thereof, be it enacted, by the queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, as follows : — 1. No house, office, room, or other place shall be opened, No house, kept or used for the purpose of the owner, occupier, or keeper ^<^- to be thereof, or any person using the same, or any person procured ^^^^ of owner or employed by or acting for or on behalf of such owner, oc- or occupier copier, or keeper, or person using the same, or of any person betting with having the care or management, or in any manner conducting other per- the business thereof, betting with persons resorting thereto ; or for the purpose of any money or valuable thing being re- ceived by or on behalf of such owner, occupier, keeper, or per- son as aforesaid as or for the consideration for any assurance, undertaking, promise or agreement, express or implied, to pay or give thereafter any money or valuable thing, on any event or contingency of or relating to any horse race, or other race, fight, game, sport or exercise, or as or for the consideration for securing the paying or giving by some other person of any money or valuable thing, on any such event or contingency as aforesaid ; and every house, office, room, or other place opened, kept, or used for the purposes aforesaid, or any of them, is hereby declared to be a common nuisance and contrary to law. 2. Every house, room, office or place opened, kept, or used Betting for the purposes aforesaid, or any of them, shall be taken and houses to be deemed to be a common gaming house within the meaning of gaming an act of the session holden in the eighth and ninth years of g^^^f ^T^*^"'^ her majesty, chapter one hundred and nine, " to amend the c. 109. " law concerning games and wagers." 3. Any person who being the owner or occupier of any Penalty on house, office, room, or other place, or a person using the same, o^"er or shall open, keep, or use the same for the purposes hereinbe- letting "^ ° fore mentioned, or either of them ; and any person who being house, the owner or occupier of any house, room, office or other place, shall knowingly and wilfully permit the same to be opened, kept or used by any other person for the purposes aforesaid, or either of them ; and any person having the care or management of or in any manner assisting in conducting 422 APPENDIX. Penalty on persons re- ceiving money on condition of paying money on event of anv bet. Money so re- ceived may be recovered from the per- sons re- ceiving the same. This act not to extend to the business of any house, oflSce, room or place opened, kept or used for the purposes aforesaid, or either of them, shall, on summary conviction thereof before any two justices of the peace, be liable to forfeit and pay such penalty, not exceeding One hundred pounds, as shall be adjudged by such justices, and may be further adjudged by such justices to pay such costs at- tending such conviction as to the said justices shall seem rea- sonable ; and on the nonpayment of such penalty and costs, or in the first instance, if to the said justices it shall seem fit, may be committed to the common gaol or house of correction, with or without hard labour, for any time not exceeding Six calendar months. 4. Any person, being the owner or occupier of any house, office, room or place opened, kept or used for the purposes aforesaid, or either of them, or any person acting for or on be- half of any such owner or occupier, or any person having the care or management or in any manner assisting in conducting the business thereof, who shall receive, directly or indirectly, any money or valuable thing as a deposit on any bet, on con- dition of paying any sum of money or other valuable thing on the happening of any event or contingency of or relating to a horse race or any other race, or any fight, game, sport or ex- ercise, or as or for the consideration for any assurance, under- taking, promise or agreement, express or implied, to pay or give thereafter any money or valuable thing on any such event or contingency, and any person giving any acknowledgment, note, security or draft on the receipt of any money or valuable thing so paid or given as aforesaid, purporting or intended to entitle the bearer or any other person to receive any money or valuable thing, on the happening of any such event or con- tingency as aforesaid, shall, upon summary conviction thereof before two justices of the peace, forfeit and pay such penalty, not exceeding Fifty pounds, as shall be adjudged by such jus- tices, and may be further adjudged by such justices to pay such costs attending such conviction as to the said justices shall seem reasonable ; and on the nonpayment of such penalty and costs, or in the first instance, if to such justices it shall seem fit, may be committed to the common gaol or house of cor- rection, with or without hard labour, for any time not exceed- ing Three calendar months. 5. Any money or valuable thing received by any such person aforesaid, as a deposit on any bet, or as or for the considera- tioij for any such assurance, undertaking, promise or agree- ment as aforesaid, shall be deemed to have been received to or for the use of the person from whom the same was received, and such money or valuable thing, or the value thereof, may be recovered accordingly, with full costs of suit, in any court of competent jurisdiction. 6. Provided always, that nothing in this act contained shall STATUTES. 42S extend to any person receiving or holding any money or valua- stakes due to ble thing, by way of stakes or deposit to be paid to the winner owner of of any race or lawful sport, game or exercise, or to the owner ^^ ^ ^^^^^ of any horse engaged in any race. 7. Any person exhibiting or publishing or causing to be ex- penalty on hibited or published any placard, handbill, card writing, sign persons ex- or advertisement, whereby it shall be made to appear that any hibiting pla- house, office, room or place is opened, kept or used for the advertising purpose of making bets or wagers, in manner aforesaid, or for betting the purpose of exhibiting lists for betting, or with intent to houses. induce any person to resort to such house, office, room or place for the purpose of making bets or wagers in manner aforesaid, or any person who, on behalf of the owner or occupier of any such house, office, room or place, or person using the same, shall invite other persons to resort thereto for the purpose of making bets or wagers, in manner aforesaid, shall, upon sum- mary conviction thereof before two justices of the peace, forfeit and pay a sum not exceeding Thirty pounds, and may be further adjudged by such justices to pay such costs attending such conviction as to the said justices shall seem reasonable ; and on the nonpayment of such penalty and costs, or in the first instance if to such justices it shall seem fit, maybe committed to the common gaol or house of correction, with or without hard labour, for any time not exceeding Two calendar months. 8. If any person convicted under this act on information Penalties and before justices shall be adjudged to pay any penalty, or any costs rnay be costs and charges attending the conviction, and shall fail to ^gtress^ pay such penalty or costs, the same may be levied by distress and sale of the goods and chattels of the offender by warrant under the hand and seal of one of the convicting justices : Provided always, that if any person shall be committed to prison for default of payment of any penalty and costs, then the costs alone may be levied by distress as aforesaid. 9. One half of every pecuniary penalty which shall be ad- Application judged to be paid under this act shall be paid to the informer, of penalties, and the remaining half shall be applied in aid of the poor rate of the parish in which the offence shall have been committed, and shall be paid for that purpose to the overseer or other person authorized to receive poor rates in such parish, or if the place wherein the offence shall have been committed shall be extra-parochial, then the justices by whom such penalty shall be adjudged to be paid shall direct such remaining half thereof to be applied in aid of the poor rate of such extra- parochial place, or if there shall not be any poor rate therein, in aid of the poor rate of any adjoining parish or district. 10. In case any person who shall have laid any complaint On neglect to or information in respect of any offence against this act shall prosecute not appear at the time at which the defendant may have been ^"^ ^"™* ri . , • 1 1 1 • „ mons, JUS- summoned to appear, or at any time to which the hearing oi tices may 424 APPENDIX. authorize some other person to proceed. Justices may authorize search of suspected houses. Commis- sioner of police may- authorize superintend- ent of police to enter and search sus- pected houses. Appeal to quarter sessions. the summons may have been adjourned, or, in the opinion of any justices having authority to adjudicate with respect to the offence charged in such information or complaint as aforesaid, shall otherwise have neglected to proceed upon or prosecute such information or complaint with due diligence, it shall be lawful for such justices to authorize any other person to pro- ceed on such summons instead of the person to whom the same may have been granted, or if such justices think fit to dismiss the summons already granted, and authorize any per- son to take out a fresh summons in respect of the offence charged in such information or complaint, in like manner as if the previous summons had not been granted. 11. It shall be lawful for any justice of the peace, upon complaint made before him on oath that there is reason to suspect any house, office, room, or place to be kept or used as a betting house or office, contrary to this act, to give au- thority by special warrant under his hand, when in his discre- tion he shall think fit, to any constable or police officer, to enter, with such assistance as may be found necessary, into such house, office, room, or place, and, if necessary, to use force for making such entry, whether by breaking open doors or otherwise, and to arrest, search, and bring before a justice of the peace all such persons found therein, and to seize all lists, cards, or other documents relating to racing or betting found in such house or premises ; and any such warrant may be according to the form given in the first schedule annexed to the before-mentioned act " to amend the law concerning " games and wagers." 12. If any superintendent belonging to the metropolitan po- lice force shall report in writing to the commissioners of police of the metropolis that there are good grounds for believing and that he does believe that any house, office, room, or place within the metropolitan police district is kept or used as a betting house or office, contrary to this act, it shall be lawful for either of the said commissioners by order in wTiting to au- thorize the superintendent to enter any such house, office, room, or place, with such constables as shall be directed by the commissioners to accompany him, and, if necessary, to use force for the purpose of effecting such entry, whether by break- ing open doors or otherwise, and to take into custody all per- sons who shall be found therein, and to seize all lists, cards, or other documents relating to racing or betting found in such house or premises. 13. Any person who shall be summarily convicted under this act may appeal to the next general or quarter session of the peace to be holden for the county or place wherein the cause of complaint shall have arisen, provided that such per- son at the time of the conviction give notice of his intention to appeal, and shall at the time of such conviction, or within STATUTES. 425 fortj^-eight hours thereafter, enter into a recognizance with two sufficient securities conditioned personally to appear at the said session to try such appeal, and to abide the further judg- ment of the court at such session, and to pay such costs as shall be by the last-mentioned court awarded ; and it shall be lawful for the magistrate or justices by whom such conviction shall have been made to bind over any party who shall have made information against the party convicted, and any wit- nesses who shall have been examined, in sufficient recogni- zances to attend and be examined at the hearing of such appeal ; and every such witness, on producing a certificate of being so bound under the hand of the said magistrate or jus- tices, shall be allowed compensation for his or her time, trouble, and expenses in attending the appeal, which compensation shall be paid in the first instance by the treasurer of the county or place in like manner as in cases of misdemeanour under the provisions of an act passed in the seventh year of the reign of King George the Fourth, intituled " An Act for improving the 7 & 8 Geo. 4, Administration of Criminal Justice in England ;" and in case ^- 28- any such appeal shall be dismissed and the order or conviction affirmed, the reasonable expenses of all such witnesses attend- ing as afort said, to be ascertained by the court, shall be repaid to the said treasurer by the appellant. 14. On any such appeal no objection shall be allowed to the No objection information whereon the conviction has taken place, or to such I" matter of . . p „ ^ „ . „ form and conviction, on any matter oi form or on any msutnciency oi certiorari statement, provided it shall appear to the justices in quarter taken away, sessions that the defendant has been sufficiently informed of the charge intended to be made against him, and that such conviction was proper on the merits of the case ; and no in- formation, conviction, or judgment of the justices in general or quarter sessions shall be removed by certiorari into the Court of Queen's Bench. 15. When any distress shall be made for any money to be Distress not levied by virtue of the warrant of any justice under this act, unlawful for the distress shall not be deemed unlawful, nor shall any party making the same be deemed a trespasser, on account of any defect or want of form in the information, summons, warrant of apprehension, conviction, warrant of distress, or other pro- ceeding relating thereto, nor shall such party be deemed a trespasser from the beginning on account of any irregularity which shall be afterwards committed by him, but all persons aggrieved by such defect or irregularity may recover full sa- tisfaction for the special damage by an action on the case in any of her majesty's courts of record. 16. No plaintifi" shall recover in any action for any irregu- Tender of larity, trespass, or other WTongful proceeding made or com- amends, &c. mitted in the execution of this act, or in, under, or by virtue of any authority hereby given, if tender of sufficient amends 426 APPENDIX. Limitation of actions. Interpreta- tion of terms. Commence- ment of act. Act not to extend to Scotland. shall have been made by or on behalf of the party who shall have committed such irregularity, trespass, or other wrongful proceeding before such action brought, and in case no tender shall have been made it shall be lawful for the defendant in any such action, by leave of the court where such action shall depend, at any time before issue joined to pay into court such sum of money as he shall think fit, whereupon such proceed- ing, order, and adjudication shall be had and made in and by such court as in other actions where defendants are allowed to pay money into court. 17. No action, suit, or information, or any other proceeding, of what natui'e soever, shall be brought against any person for anything done or omitted to be done in pursuance of this act, or in the execution of the authorities under this act, unless notice in writing shall be given by the party intending to prosecute such suit, information, or other proceeding to the intended defendant one calendar month at least before prose- cuting the same, nor unless such action, suit, information, or other proceeding shall be brought or commenced within three calendar months next after the act or omission complained of, or in case there shall be a continuation of damage then within three calendar months next after the doing such damage shall have ceased. 18. In Ireland the term " metropolitan police force," and the terms "commissioners of the police of the metropolis," and the terms "metropolitan police district," shall mean and in- clude respectively the Dublin metropolitan police force, the commissioners of police of Dublin metropolis, and the police district of Dublin metropolis. 19. This act shall commence and come into operation on the first day of December, one thousand eight hundred and fifty- three. 20. This act shall not extend to Scotland. ( 427 ) PART III. MISCELLANEOUS. The Rules of Racing and Betting 427 Queen's Plate Articles . . 430 Newmarket Courses .... 434 Post Horses 434 Slaughtering Horses .... 435 435 Conditions of Sale at Al- dridge's Conditions of Sale at Tat- tersalls 437 Rules of the Subscription Room at Tattersalls . . 438 THE RULES OF RACING AND BETTING («). At a meeting of the members of the Jockey Club, held 25th April, 1833, it was resolved, That from and after the end of the year 1833, horses should be considered at Newmarket as taking their ages from the 1st of January instead of the 1st of May. Four inches are a hand. Fourteen pounds are a stone. 1. Catch weights are, each party to appoint any person to ride without weighing. 2. Give-and-take plates are, fourteen hands to carry stated weights, according to age ; all above or under to carry extra or be allowed the proportion of seven pounds to an inch. 3. A Post Match is, to insert the age of the Horses in the article and to run any Horse of that age, without declaring what Horse till he come to the post to start. 4. A Handicap Match is A., B. and C, to put down an equal sum each : C, who is the handicapper, makes a match for A. and B., who, when they have perused it, put their hands into their pockets and draw them out closed ; then they open them together, and if both have money in their hands the match is confirmed, if neither have money it is no match. In both cases the handicapper draws all the money ; but if one has (a) From the Racing Calendar, 1853. 428 APPENDIX. money in his hand and the other none, then it is no match, and he that has money in his hand is entitled to the deposit. 5. Horses are not entitled to start without producing a pro- per certificate of their age, if required by the Stewards or whom they may appoint, at the time appointed in the articles, except where aged Horses are included, and in that case a junior Horse may enter without a certificate as to age, provided he carry the same weight as the aged. 6. No person shall start more than one Horse of which he is the owner, either wholly or in part, and either in his own name or that of any other person, for any race for which heats are run. 7. The Horse that has his head at the ending -post first wins the heat. 8. For the best of the plate, where three heats are run, the Horse is second that wins one heat. 9. For the best of the heats, the Horse is second that heats the other Horses twice out of three times, though he did not win a heat. 10. Where a plate is won by two heats, the preference of the Horses is determined by the places they get in the second heat. 11. Where a plate or subscription is given to the winner of the best of three heats, a horse, to win the prize, must be the actual v\ inner of two heats, even though no Horse appear against him for both or either of the heats. 12. When three Horses have each won a heat they only must start for a fourth, and the preference amongst them will be determined by it, there being before no dilFerence amongst them. 13. In running of heats, if it cannot be decided which Horse is first, the heat goes for nothing, and they may all start again,* except it be between two Horses that had each won a heat. 14. If a rider fall from his Horse, and the Horse be rode in by a person that is sufficient weight, he shall take his place the same as if his rider had not fallen, provided he go back to the place where the rider fell. 15. Jockies must ride their Horses to the usual place for weighing the riders, and he that dismounts before or wants weight is distanced ; unless he be disabled by an accident which should render him incapable of riding back, in which case he may be led or carried to the scale. 16. Horses' plates or shoes not allowed in the weight. 17. Horses running on the wrong side of a post, and not turning back, are distanced. 18. Horses drawn before the plate is won are distanced. 19. Horses are distanced if their riders cross or jostle. MISCELLANEOUS. 429 20. All complaints of foul riding must be made before or at the time the jockey is weighed. 21. No distance in a fourth heat 22. A confirmed bet cannot be off but by mutual consent, except in the cases hereinafter mentioned. 23. Either of the betters may demand stakes to be made, and on refusal declare the bet to be void. 24. If a better be absent on the day of running, a public declaration of the bet may be made on the Course, and a de- mand whether any person will make stakes for the absent party, and if no person consent to do so the bet may be de- clared void. - 25. Bets agreed to be paid or received in London, or any other particular place, cannot be declared off on the Course. 26. If a match or sweepstakes be made for any particular day in any race week, and the parties agree to change the day to any other in the same week, all bets must stand ; but if the parties agree to run the race in a different week, all bets made before the alteration shall be void. 27. The person who lays the odds has a right to choose a Horse or the field; when a person has chosen a Horse the field is what starts against him, but there is no field without one Horse starts against him. 28. Bets and stakes made in guineas are paid in pounds. 29. If odds are laid without mentioning the Horse before the race is over, the bet must be determined by the state of the odds at the time of making it. 30. Bets made in running are not determined till the plate is won, if that heat be not mentioned at the time of running. 31. A bet made after the heat is over, if the Horse betted on does not start, is void. 32. Bets determined though the Horse does not start, when the words " absolutely run or pay," or " play or pay," are made use of in betting. 33. Where Horses run a dead heat for a sweepstakes or plate, and the parties agree to divide the stakes, such Horses shall be liable to carry extra weight as winners ; and all bets between such Horses or between either of them and the field, must be settled by the money betted being put together and divided between the parties, in the same proportion as the stakes shall have been divided. If a bet be made on one of the Horses that ran the dead heat against a Horse that was beaten in the race, he who backed the Horse that ran the dead heat wins half his bet. If the dead heat be the first event of a double bet, the bet shall be void. 34. Bets made on Horses winning any number of races within the year shall be understood, however the expression may be varied, as meaning the year of our Lord. APPENDIX. 35. Money given to have a bet laid shall not be returned though the race be not run. 36. Matches and bets are void on the decease of either party before the match or bet is determined. 37. A Horse walking over or receiving forfeit, except for a match, shall be deemed a winner. 38. An untried stallion or mare is one whose produce has never run in public. ^H 39. A maiden Horse or Mare is one that has never won. '^ 40. It being an established rule that no person can run, either in his own name or in the name of any other person, two Horses, of which he is wholly or in part the owner, for any plate, and doubts having arisen as to the true definition of the word ^' plate," the Stewards of the Jockey Club have de- cided that where a sum of money is given to be run for, with- out any stake being made by the owners of the Horses (the entrance-money, whether given to the owner of the second Horse or applied to the Racing Fund, not being considered a stake,) such prize shall be construed to be a plate. But where a stake is deposited by the owners of the Horses, which is to go to the winner, and an additional sum of money, or a cup, piece of plate or other reward is offered as a prize to the winner, even though such addition shall be denominated a plate by the donor, such race shall be deemed and taken to be a sweepstakes and not a plate. By Order of her Majesty's Master of the Horse, the following Queen's Plate Articles are substituted for those hitherto in force: Jan. 25, 1847. QUEEN S PLATE ARTICLES (a). ^ [It is her Majesty's Command, that these following Rules be observed by the Owners and Riders of all such Horses, Mares, and Geldings as shall run for her Majesty's Plates at Newmarket and elsewhere.] 1. Every Horse, mare or gelding that runneth for any of the said Plates, shall carry the weight and run the distance appointed in the Schedule hereunto annexed. 2. Every person that putteth in a Horse, mare or gelding for any of the said Plates, shall enter the same with the name of the owner, and the age, name, pedigree, or suflScient de- scription of the Horse, according to the Rule of the Jockey Club regarding nominations, at the time and place appointed (a) Contained in the Racing Calendar, 1853. MISCELLANEOUS. 431 by the Steward or Stewards of the races at which such Plate is to be run for. 3. Horses that run for any of her Majesty's Plates shall start at the time appointed by the Steward or Stewards of the races at which such plate is run for. 4. Each Horse's, mare's or gelding's place as he or they come by the ending-post shall be determined by the Judge ap- pointed by the Steward or Stewards of the Races at the place where the said Plate is run for. 5. Every rider shall, immediately after each heat be run, be obliged to come to the usual place of weighing, with his Horse, mare or gelding, then and there to alight and not be- fore, and there to weigh to the satisfaction of the person ap- pointed for that purpose. 6. And in case of neglect or refusal thereof, such owners and riders shall be immediately declared incapable of running or riding any more for this or any of her Majesty's Plates hereafter. 7. Every Horse, mare or gelding that runneth on the wrong side of the post or flags or is distanced in any of the heats, shall have no share of the said Plates nor be suffered to run any more. 8. When any of her Majesty's Plates are appointed to be run in heats, the Horse, mare or gelding that winneth any two heats winneth the Plate, but if three several Horses, mares or geldings win each of them a heat, then those three and only they to run a fourth heat, and the Horse, mare or gelding that winneth the fourth heat shall have the Plate. 9. When the age or qualification of a Horse entered for any of her Majesty's Plates shall be objected to, either before or after running, the Stewards of the races at which such Plate is run for shall have the power to order an examination of the Horse's mouth by competent persons, and to call for all such evidence as they may require, and their decision shall be final unless they shall think fit to refer the matter to the Stewards of the Jockey Club for the time being, in which case the de- cision of the said Stewards of the Jockey Club shall be final. A certificate shall not be granted to any Horse objected to until the question of his qualification shall be decided in the manner herein prescribed. 10. And in case any difference shall arise in running or re- specting any matters not hereinbefore provided for, or as to the interpretation of these her Majesty's orders, the same shall be determined by the Master of the Horse or by such person or persons as he shall appoint. 432 APPENDIX. Schedule of Weights and Distances for the Hoyal Plates. The weights of the Queen's Plates run for at Newmarket shall be fixed by the Stewards of the Jockey Club. Salisbury — three years old, 6 st. 7 lb. ; four, 9st 21b. ; five, 9 St. 13 lb. ; six, and aged, 10 st. 3 lb. ; three miles. Northampton- — three years old, 6 st. 10 lb. ; four, 9 st. 2 lb. ; five, 9 St. 10 lb. ; six and aged, 10 st. Chester — three years old, 7 st. 2 lb. ; four, 9st. 2 lb. ; five, 9 St. 121b.; six and aged, 10 st. 21b.; thrice round the Course, rather more than three miles. Shrewsbury — weights as at Chester; three miles. Lewes — three years old, 7 st. 6 lb. ; foiu", 9 st. 3 lb. ; five, 9 St. 11 lb. ; six and aged, 10 st. ; the new Course. Epsom — (for Mares only) three years old, 7 st. ; four, 8 st. 91b. ; five, 9 St. 2 lb. ; six and aged, 9 st. 5 lb. ; Metropolitan Stakes Course. Ascot Heath — weights as at Qhester; to start at the New Mile Starting Post, and go once round and in. Manchester — weights as at Chester; three miles and a distance. Newcastle — three years old, 7 st. ; four, 8 st. 10 lb. ; five, 9 st 4 lb. ; six and aged, 9 st. 7 lb. ; three miles. Edinburgh Hampton Lancaster Liverpool j three years old, 7 st. 7 lb. ; four, 9 st ; five, Ipswich )■ 9 st 6 lb.; six and aged, 9 st 9 lb. ; two Chelmsford miles. Winchester Carlisle Nottingham Egh AM— three years old, 7 st 7 lb. ; four 9 st ; five, 9 st 7 lb. ; six and aged, 9st 10 lb. ; two miles and a distance. Goodwood— three years old, 7 st 4 lb.; four, 9 st 2lb. ; five, 9st 12 lb. ; six and aged, 10 st 21b.; about three miles and five furlongs. York— three years old, 7 st. 7 lb. ; four, 8 st 12 lb. ; five, 9 st. 4 lb. ; six and aged, 9 st. 7 lb. ; two miles. Canterbury ^ Warwick j three years old, 8 st 2 lb. ; four, 9 st 4 lb. ; Weymouth > five, 9 st. 9 lb. ; six and aged, 9 st 11 lb. ; Lichfield I two miles. Lincoln ) Leicester } three years old, 7 st. 7 lb. ; four, 9 st ; five, 9st Bedford \ 7 lb. ; six and aged, 9 st 9 lb. ; three miles. MISCELLANEOUS. 433 DONCASTER— three years old, 7 st. ; four, 8 st. 5 lb. ; five, 8 st. 12 lb. ; six and aged, 9 st. 2 lb. Cup Course, about two miles and five furlongs. Caledonian Hunt — three years old, 7 st. 6 lb. ; four, 9 st. ; five, 9 St. 9 lb. ; six and aged, 10 st. ; four miles. 'York — three years old, 7 st 7 lb. ; four, 9 st 2 lb. ; five, 9 st 10 lb. ; six and aged, 9 st 13 lb.; three York and Richmond I miles. (Alternate Plate) j Richmond— three years old, 7 st 7 lb. ; I four, 8 st 13 lb. ; five, 9 st 7 lb. ; j six and aged, 9 st 10 lb.; three I miles. Form of a Certificate of having won a Queen's Plate. These are to certify, That her Majesty's Plate of a Hundred ' Guineas was won at the day of 185 , by 's Horse called A. B. Steward. C. D. Clerk of the Course. E. ^ (a) Lord Lieutenant of S the County. His Grace the Duke of Wellington, Master of the Horse to her Majesty. I [The signature of the Lord Lieutenant alone is sufficient, but that can seldom be obtained without first producing to him a certifi- cate signed by the Steward and Clerk of the Course.'\ N. B. The certificate, when properly signed, is payable at three days' sight to the winner of the Plate (or to any other person, if indorsed by the winner,) at the office of the Clerk of her Majesty's Stables in the Royal ^lews, Pimlico. The Plates at Chester, Hampton, Goodwood, Bedford, Shrews- bury, Leicester, Liverpool, Northampton, Egham, and the Hunters' Plate at x4scot, and the lOOgs. added to the Whip at ., the Curragh, are given from a different fund, and the certifi- / cates are to be addressed to the Keeper of the Privy Purse. The Plate at Lancaster is payable at the office of the Duchy of Lancaster, 9, Lancaster Place, Strand, and the certificate is to be addressed to th^ Clerk of the Council of her Majesty's Duchy of Lancaster. (a) If the Lord Lieutenant Heath Plates must be signed be officially out of the king- by the Master of her Majesty's dom the signature of the Vice- Hounds, instead of the Lord Lieutenant is admissible. The Lieutenant, certificates of the Ascot - U 434 APPENDIX. . i The Edinburgh and Caledonian Hunt Plates are paid at Edinburgh. [t3=- The Clerk of the Stables requires the person presenting a certificate for payment to pay for a receipt stamp. NEWMARKET COURSES. M. Fur. Tfds. B.C. Beacon Course 4 1 138 T. M. M. Two Middle Miles of Ditto 1 7 125 R. C. Round Course 3 4 187 D.I. Ditch In 2 97 A. F. Across the Flat 1 2 24 An. M. Ancaster Mile 1 18 Ab. M. Abingdon Mile 7 211 R. M. Rowley Mile 1 1 D. M. Ditch Mile 7 178 B. M. Bunbury Mile 7 208 A. E. C. Audley End Course 1 6 Cler. C. Clermont Course 1 5 217 Crit. C. i Criterion Course, or Turn of the } f. r iq± T.L.I.^ Landsin S T. Y. C. Two- Year-Old Course 5 136 f. T. Y. C. New Two-Year-Old Course .... 5 136 Y. C. Yearling Course 2 47 Ces. C. ' Cesarowdtch Course 2 1 215 Cam. C. Cambridgeshire Course 1 240 1760 Yards are a Mile. 220 Yards are a Furlong. 240 Yards are a Distance. POST HORSES. The acts of parliament as to Stage Coaches and Post Horses, are 2 & 3 Will. 4, c. 120 ; 3 & 4 Will. 4, c. 48 ; 6 & 7 Will 4, c. 45 ; 6 & 7 Will. 4, c. 65 ; 2 & 3 Vict. c. 66 ; and 5 S:6 Vict, c, 79 ; and they are to be found in Burn's Justice (a), under the head *' Stage Coaches and Post Horses." The acts of parliament regulating Hackney Coaches, Omnibuses, Carts, Waggons, Drays, and Public Carriages in or near London, are 1 & 2 Will. 4, c. 22, and 6 & 7 Vict c. 86 ; and are to be (a) Bere and Chitty's Burn's Justice, vol. iii. p. 322. MISCELLANEOUS. 435 found in Burn's Justice (b), under the head " Hackney Car- riage," and see 13 & 14 Vict. c. 7 ; 16 & 17 Vict. c. 33 ; 16 & 17 Vict. c. 127. The Carriers and London Porterage acts are respectively 7 & 8 Geo. 4, c. 39, and 39 Geo. 3, c. 58 ; and see Burn's Justice (c), under the head "Carriers." SLAUGHTERING HORSES. Regulations as to the Slaughtering of Horses, &c., are con- tained in 26 Geo. 3, c. 71 ; 5 &: 6 Will. 4, c. 59, ss. 7, 8 ; and 7 & 8 Vict. c. 87; and are to be found in Burn's Justice {d), under the head " Slaughtering of Horses," and " Horses and Slaughter-houses." aldridge's, upper ST. martin's lane, for the SALE OF HORSES AND CARRIAGES BY COMMISSION AND BY AUCTION. Saks by Auction for Horses and Carriages every Wednesday, and by Commission daily. CONDITIONS OF SALE, PUBLIC OR PRIVATE. 1. The highest bidder to be the buyer, and if any dispute arise between two or more bidders, before the lot is returned into the stable, the lot so disputed shall be put up again and resold. 2. No person to advance less than five shillings above one pound, ten shillings and sixpence above ten pounds, and so on in proportion. 3. A deposit of 20/. per cent, must, if demanded, be paid on each lot at the time of purchase, and the remainder before delivery on the same day ; but should the purchase-money not be made good during the day, the deposit will be forfeited, leaving the owner at liberty to dissolve the contract, or to resell the lot either privately or by auction, with or without giving notice to the purchaser, who will be held responsible to the owner for any difference or loss which may arise out of the non-fulfilment of the contract, including commission on the resale, keep, and all other charges whatevei*. 4. Should any horse be warranted sound, and prove un- (b) Bere and Chitty's Burn's Justice, vol. iii. d. 437. (c) Ibid. vol. i. p. 524. (d) Ibid. vol. ifi. p. 1087. u 2 436 APPENDIX. sound, he must be returned within the second day after the' , sale, before five o'clock (this period applying only to the liability of the establishment), with a certificate from a vete- rinaiy surgeon, particularly describing the unsoundness ; when if confirmed by another veterinary surgeon, the amount re- ceived for the horse shall be immediately paid back ; but if J he should not confirm the certificate, a third veterinary sur- ^ geon shall be called in, and his decision shall be final ; ^and the expenses of such examinations shall be borne by the party in error. 5. If a horse, warranted quiet in harness, or quiet to ride or in any other respect except as to soundness, shall be re- turned within the prescribed period, viz. before five o'clock on the second day after the sale, as not answering the warranty given with him at the time of sale, he shall be ti'ied by an im- partial person, whose decision shall be final ; and the conside- ration for the trial, viz. 10s. shall be paid by the party in error. 6. The vendor shall be entitled to receive the money on the third day from the sale for lots sold by auction, and on the fourth day from the sale for lots sold by private contract, pro- vided, in either case, the purchase-money shall have been received. 7. Should any horse, carriage or other property remain at this repository over one month, the proprietor of Aldridge's shall be at liberty to sell the same, bid hy public auction only, with or without previous notice to the owner, unless all ex- penses are previously paid ; and the owner may receive the net proceeds on the third day after such sale. 8. Five shillings is charged on each horse, etc. entered on the books for sale by auction, whether the lot or lots be put up or not. 35. Qd. is charged for the keep of each horse per night ; and Is. Qd. is charged for standing of each horse en- tered on the moraing of sale. 7s. Qd. is charged on each carriage entered in tlie books for sale by auction; unless previously sold, 3s. Qd. is charged per week for the standing of 4-wheel carriages and 2s. Qd. per week for the standing of 2-wheel car- riages. 9. The commission charged upon the total amount of all sales is, in every case, five per cent. Lastly. All horses, carriages, etc., brought to this repository for sale, and sold either by any person employed by the pro- prietor or by the owner of the lot or lots, shall pay the usual commission of 5 per cent. No unsold horses, carriages, etc. shall be taken away until the keep and all other expenses are paid ; the same to apply equally where horses, carriages, etc. are sold, either by public auction or private contract. — ♦— MISCELLANEOUS. 437 Hyde Park Corner, Oct. 23, 1780. CONDITIONS OF EVERY SALE BY AUCTION AND PRIVATE CONTRACT, At this place. 1st. The highest bidder to be the buyer ; and if any dispute arise between any two or more bidders, the lot so disputed shall be immediately put up again and resold. 2nd. No person to advance less than 5s. above 51. 5s., and so on in proportion. 3rd. The purchasers to give in their names and places of abode (if required), and to pay down 5s. in the pound (if re- quired), as earnest, and in part of payment; in default of which, the lot so purchased may be immediately put up again and resold if the auctioneer shall think fit. 4th. The lots to be taken away within one day after the sale is ended, at the buyer's expense, and the remainder of the purchase money to be absolutely paid before the delivery of the lot. 5th. Upon failure of complying with the above conditions, the money deposited in part of payment shall be forfeited to the owner of the lot, he paying thereout all just expenses, and the lot shall be resold by public or private sale, and the defi- ciency (if any) attending such resale, shall be immediately made good by the defaulter at this sale. 6th. If any person shall purchase a lot, and not pay for it within the time limited by the 4th condition, nothing con- tained in the 5th condition shall prevent the auctioneer, or owner of the lot, from compelling the purchaser to pay for it, if the auctioneer or seller shall so think fit. 7th. The vendor shall be entitled to receive the purchase- money of each lot not warranted (in any way) on the third day from the sale day ; and all horses sold with a warranty on Monday will be paid for on Friday ; and all horses sold with a warranty of any description on Thursday will be paid for on Tuesday, provided that the auctioneer shall then have received the purchase-money or delivered the lot out of his custody, but not before. 8th. The purchaser of any lot warranted in any way, and not answering the warranty given, must return the same on or before the evening of the second day from the sale, other- wise the purchaser shall be obliged to keep the lot with all faults. 9th. All Horses, carriages, &c., brought to this repository 438 APPENDIX. I for sale, and sold or advertised to be sold by private contract, either by Messrs. Tattersall and Son, the owner, or any one acting as agent for the owner of such Horses, carriages, &c., shall pay the usual commission ; and no person shall take away his Horses, carriages, &c., until the commission, keep, and other expenses are paid, whether the same have been sold by public auction or private contract, &c., or are not sold. 10th. All Horses, carriages, &c., advertised by Messrs. Tat- tersall and Son, (though not upon the premises at the time of sale either by private contract or public auction) shall pay the usual commission. Commission Is. in the pound, either by public or private sale. If not sold, 5s. for putting up each lot. The days of payment to sellers are, for unwarranted Horses, Wednesdays ; for warranted horses, Fridays only, between the hours of ten and four o'clock. N.B. — No money paid without a written order. Hyde Park Corner, January 1, 1848. Tattersall's Subscription Room, Hyde Park Corner, London. Rules and Regulations to be observed by all Subscribers to this Room. 1. Any person desirous of becoming a member of this room will be required to send into Messrs. Tattersall and Son an application in writing, accompanied by a recommendation (to be also in writing) signed by any two or more members of the room, stating their names and addresses. This application, which must be put up in the room, at least one week previous' to his election, will be forthwith referred to some two or more: members of the committee of subscribers, for their consider^-' tion and decision. 2. Every member, upon admittance to the room, must enter his name and address in a book provided for that purpose, in which these, together vNith any other rules and regulations from time to time adopted to be observed by the members, will also be entered ; and such signature in the book so con- taining the said rules and regulations will make it binding on the party signing, to abide by all such rules and regulations, as well as by all consequences resulting from breach or non- MISCELLANEOUS. 439 performance thereof; and such signature shall moreover be taken and deemed to absolve every person concerned in carry- ing out and enforcing such rules and regulations against such subscriber from all personal responsibility or legal liabilities on that account. 3. No person who shall have made default in payment of stakes, forfeits, or bets, or who shall have been party at any time, anywhere, to any fraud or malpractice connected with horse- racing, shall be admitted a member of this room. And if any member should be hereafter discovered to have been, or should at any time become a defaulter, or be guilty of any fraud or ^ malpractice as aforesaid, and upon complaint to the committee, should be adjudged by them to be so, his membership shall thereupon at once cease and determine, and he shall thence- forward be excluded from the room. 4. Any member of this room having a disputed bet with another member, shall be bound, if required by him, to refer such dispute to two referees (being members of this room), one to be chosen by each party ; such referees to appoint an umpire (being also a member of this room) before they pro- ceed to hear the case, or in the event of the referee not agree- ing in the choice of an umpire, such umpire to be appointed by the committee, and the decision of such referees or umpire to be final. Any member refusing to refer any bet so dis- puted, or to comply with the decision consequent upon such reference within one calendar month next ensuing after notice of such decision from the referees or umpire, either personally or by letter to be addressed by post to the residence of such member as entered in the subscription book, shall, upon com- plaint to the committee, be deemed to be, and be treated by them, as a defaulter under the provisions of the third rule. 5. Any member smoking in the room, or creating any noise, uproar or disturbance, will thereby forfeit his rights of member- ship, and render himself liable to immediate expulsion. 6. The annual subscription to the room will be two guineas, commencing on the 1st of January. Non-subscribers will be admissible on the Epsom settling day, upon payment of one guinea each. 7. The room will be opened on every Monday and Thursday throughout the year, at one o'clock in the afternoon ; and on every day (excepting Sunday) in the weeks immediately pre- ceding the Epsom and Ascot meetings. 8. The following members will cotjstitute the committee, of whom any three may form a quorum, and in the event of an equal number of the committee being present, and of an equal division taking place upon any question, the chairman pro tem^ pore shall be entitled to a casting vote in addition to his vote as a member of the committee. In case of any member re- tiring from the committee, his successor will be nominated by 440 APPENDIX. Messrs. Tattersall and Son, previously to his withdrawal, so that the original number of members constituting the com- mittee may always be kept up. Committee. The Earl of Chesterfield. The Earl of Strathmore. The Hon. Capt. Rous, R.N. The Hon. Major Pitt. C. C. Greville, Esq. G. Payne, Esq. F. R. Magenis, Esq. INDEX. A. ACCEPTANCE AND RECEIPT. In what they consist, 7. General Rule, id. Acceptance before delivery, id. Where an article is selected, id. Question for Jury, 8. What should be left to them, 9. What has been held sufficient as an acceptance and receipt, id. What has been held insufficient, 10. Various acts of ownership, 11. A ready money transaction, id. Where buyer offers to resell, 12. Where goods are agreed to be resold, id. Goods bought out of a larger bulk, id. More articles sent than ordered, id. ACCIDENT. Unsoundness caused by it, 54. Pony and carriage running away, 240. Horse running away, 241, 343. Collision in the dark, 241, 351. ACCIDENTAL DEATH. See Negligent Driving. ACCOUNT STATED, 147. Proof of it, 154. ACE OF HEARTS. An illegal game, 314, 365. ACUTE DISEASES, 54. ADDRESS. Giving one after an accident, 247. Promising to pay for damage, 208, 247. V 5 442 INDEX. ADVERTISING LOTTERIES. Illegal and foreign ones prohibited, 280. AFFIRMATION. As to value, 112. AGENT. Betting Agent, 306. And see Servant. AGISTER. His possession, 196. Does not insure a Horse's safety, id. He is answerable for negligence, 197. Fences out of order, &c., id. The Horse's condition, id. Eatage let for a certain time, id. Agister has no lien, 198. May have a lien by agreement, 199. Horses and cattle being agisted are distrainable, id. But not when taken in to rest for a night, id. Decision of the Irish Court of Queen's Bench, id. Distinction where cattle enter by breaking fences, id. AGREEMENT. By a jobmaster, 206. By a hirer, 210. AGREEMENT STAMP, 158. ALDRIDGE'S, 31. Conditions of sale used there, 433. AMENDMENT. Where a Judge will amend, 143, 375. ANNE. Reign of, 272. Statutes. See Table of Statutes. ANNUITY. To keep a favourite mare, 337. APPRENTICE. Gaming, 308. ARBITRATION. Of the Jockey Club, 295. ARROWS. Penalty for lacking repealed, 385. INDEX. 443 ARTICLES. For Queen's Plate, 430. ARTIFICE. To conceal faults, 125, 126. ART UNIONS. Act to legalize, 397. May obtain charters, 316. ASS. Driving against one when fettered on the road, 230. ASSISTANCE. To enter a Betting-house, 328. Or Gaming-house, 332. ASSUMPSIT. For not accepting, 144. Proof for the plaintiff, 152. Defence, 161. Damages, 169. On a breach of warranty, 147. Proof for the plaintiff, 154. Defence, 163. Damages, 170. For not delivering, 145. Proof for the plaintiff, 153. Defence, 161. Damages, 169. ATHELSTAN. Reign of, 264. AUCTIONS AND REPOSITORIES. An auctioneer, 31. Liable to an action for negligence, 32. Horse sent to a repository, id. Auctioneer's possession, id. Goods privileged from distress, id. His right to remain on the premises, id. Auctioneer or clerk agent of both parties, 33. Purchaser's name signed to a catalogue, id. Printed particulars of sale, id. An incorrect catalogue, id. A limited warranty, 34. Where it applies only to soundness, 35. Trial of a Horse warranted quiet in harness, id. Notice of the conditions of sale, id. Where a bidder may retract, 36. 444 INDEX. AUCTIONS AND REPOSITORIES— confrnw^rf. Warranty of ownership, 37. Auctioneer not disclosing his principal, id. Puffing, id. Person employed to bid, 38. Purchaser may transfer his bargain, 39. Where party refuses to take goods, id. Goods resold without communicating with purchaser, id. Auctioneer proper party to receive the price, id. Has no authority to receive a bill of exchange, 40. He is Stakeholder for both parties, id. When the Price vests in the vendor, id. Price obtained by principal's fraud, id. B. BACK-GAMMON. A lawful game, 313. BACKING AND GIBBING, 55. BAGATELLE. See Billiards. BAILIFFS, 357, 385. BALLS. Evidence of a Gaminghouse, 333. May be taken, id. May be destroyed, id. BANK NOTES, 26. And see Wagers. BANKER. At a Gaminghouse, 332. BANKRUPT. Where goods are sold on credit, 24. Post Office order, 26. Gaming losses, 310. BARGAIN. Striking a Bargain, 5. Bargain when struck, id. Where neither party can be off, id. Bound by an Earnest, 14. Loss of a good Bargain, 174. BASSET. An illegal game, 274, 314. INDEX. 445 BETTING. See Wagers. BETTING HOUSES. A common Betting House, 326. Act for the Suppression of Betting Houses, id. Purposes for which houses or places are not to be used, id. Penalty for using them for such purposes, 327. Penalty for receiving money, &c. on certain conditions, id. Money, Sec. so received may be recovered from the Holder, 328. Act does not extend to stakes in a race, &c., id. Penalty for advertizing, &c., id. Power to search suspected houses, id. Power of Commissioners of Police, 329. The levy and application of penalties, id. Where party neglects to prosecute, id. The remaining provisions, id. BILL OF EXCHANGE. Payment for goods, 26. Agent receiving one, 40. Failure of consideration, 138. Given for a Gaming consideration, 304, 321. In payment of a bet, 304. As security, 306. When avoided, 305, 321. Not void in the hands of a bond fide holder, 321. Effect of such payment, id. BILL IN EQUITY, 302. BILL OF PARCELS. Within Statute of Frauds, 19. BILLIARDS. A licence required, 335. Also for Bagatelle, id. By whom licensed, id. Fees payable, id. The words " Licensed for Billiards," id. Non compliance with these regulations, id. What amount of fine, id. Enforced by distress, id. Offences against the tenor of the Licence, 336. First, second or third offence, id. When Billiard playing is not allowed, id. Constables may visit licensed Houses, id. BITING, 55. 446 INDEX. BLACKSMITH. See Farrier. BLINDNESS. Cataract, 55, 60. Remittant inflammation, 55. Opacity of the Lens held to be an unsoundness, 56. BLOOD AND BOG-SPAVIN, 57. BOARD. On the wall of Repository, 35. BOAT RACE, 293, 313. BONE-SPAVIN. Held to he an unsoundness, 58. BORROWING HORSES. Lending for use, 210. What care is required, id. As much as the borrower is capable of bestowing, 211. Showing a Horse for sale, id. A gratuitous bailee, 212. Use strictly personal, id. Cannot be used by a servant, id. k Must be used according to the lending, id. Or else the borrower is answerable, 213. Where no time is fixed for return, id. Redelivery on request, id. Borrower bound to feed the Horse, id. Where the Horse is exhausted, id. Where the Horse is killed, id. Where the Horse dies from disease, 214. Where borrower is answerable for damage, id. Bailment ended by misuser, id. BOWLS, 293, 313. BOWS. Penalty for lacking, repealed, 385. BREACH. Statement of, 151. BREACH OF WARRANTY. Buyer neither bound to tender the Horse nor give No- tice, 129. Seller not bound to take back the Horse, 130. Unless the contract was executory, id. Street v. Blay, id. INDEX. 447 BREACH OF WARRA'NTY— continued. Judgment of the Court of King's Bench, 130. Lord Eldon's opinion discussed, 131. Evidence in mitigation of damages, 132. Unfitness for a particular purpose, id. An intermediate profit, 133. Acts of ownership inconsistent with trial, id. Confirmed by a later case, id. Goods are returnable where there is fraud, 134. But not for non-correspondence with sample, id. Agreement that a Horse is to be returned if Unsound, 135. Or unsuitable, id. Or unfit for a particular purpose, id. Verbal offer after sale to take back the Horse, 136. Where goods should be returned immediately, id. Or the contract becomes complete, id. Where Buyer should tender the Horse, id. Sale after tender, id. Notice instead of tender, id. Length of time before Notice, 137. Seller should have the Horse examined, id. Breach of Warranty no defence to an action on a Bill of Exchange, 138. Unless there be a total failure of consideration, id. And see Warranty. BROKEN-BACKED, 57. BROKEN-DOWN, 57. BROKEN-KNEES, 57. BROKEN-WIND, 57. BRONCHITIS, 57. BULL-BAITING, 318. BUTTS. Penalty for not making or continuing, repealed, 385. BUYING, SELLING AND EXCHANGING. Bargain, 3. Sale and exchange, id. Executed and executory contract, id. Entire contract, id. Severable contract, id. Verbal contract, id. Written contract, 4. Right of recision, id. Right of trial, id. 448 INDEX. BUYING, SELLING AND EXCRA^GJ^SG— continued. Buying a Horse under 10/., 4. Where neither party can be off, 5. Striking a bargain, id. Contract not to be performed within a year, 5. Statute of Frauds, s. 4, id. Requisites under s. 4. .6. Buying a Horse at 10/. or upwards, id. Statute of Frauds, s. 17, id. Extended by 9 Geo. 4, c. 14, id. Requisites under s. 17, id. C. CABS, The late acts, 409, 418. CANALETTI. Picture described as by him, 115. CANKER, 60. CAPPED HOCKS, 60. CARDS. Lawful play, 313. Unlawful games, 314. Evidence of a Gaming house, 333. May be taken, id. May be destroyed, id. CARRIAGE. Horse suitable, 99, 110. CARRYING HORSES. A common carrier, 215. Bound to carry goods, id. For reasonable chai'ges, 216. Conveyance of Horses, &c. by railway companies, id. Defects in carriages, id. A special contract, id. Law now settled, id. A practical injustice, 217 Decision of the Court of Common Pleas, id. Decision of the Court of Queen's Bench, id. Decision of the Court of Exchequer, id. Opinion of Mr. Baron Piatt, 218 Dictum of Mr. Baron Parke, id. Enforcement of common law obligation, id. Chattel to be carried to a particular place, id. A ferryman, 219. Measure of damages, id. INDEX. 449 CART. Left in the Street, 229, 232. Tackle breaking, 229. Shafts breaking, id. Name on the Cart, 247. CASE. For a false Warranty, 147. Proof for the plaintiff, 154. Defence, 165. Damages, 171- For fraudulent representation, 155. Proof for the plaintiff, 159. Proof for the defendant, 163. CASSIVELLAUNUS. Used war chariots, 263. CATALOGUE. At a sale, 20. Purchaser's name signed, 33. Conditions separated, id. Description amounting to a warranty, 113, 115. CATARACT, 60. CATARRH, 62. CATTLE, 42. CAVEAT EMPTOR. Rule in buying and exchanging, 93, 107, 121. When it does not apply, 109. CERTIFICATE. Judge depriving plaintiff of costs, 53. Where damages are less than 405., 260. In trespass after notice, id. CHARIOT RACES, 312. CHARLES THE FIRST. Reign of, 271. CHARLES THE SECOND. Reign of, 271. Statutes. See Table of Statutes. CHARTER. Art Unions, 316. May be legalized, 397. 450 INDEX. CHEATING. In a wager, 307. Running booty indictable, id. In a game, 310. At play, id. Deemed a false pretence, 311. CHEQUE. Payment by, 26. Dishonoured, 127, Defence to action, 162. Stakeholder cashing one, 285. CHESS. Lawful Game, 313, 345. CHEST-FOUNDER, 60. CHILD. Horse to carry, 99. CHINKED IN THE CHINE, 60. CHRONIC OPACITY OF THE LENS, 57. CLAUDE LORRAINE. Picture represented as by him, 113. CLERGYMAN. Gaming, 308. CLERK OF THE COURSE. Stakeholder, 285. Steward, 289. CLICKING, 60. CLOUDINESS, 60. CLUB. Jockey Club, 295, 427. Subscription Club, 331. COACHMAN. A hired carriage, 205. Wearing hirer's livery, 206. And see Hiring Horses and Negligent Driving by A Servant. COCKFIGHTING, 356. Keeping a Cockpit, 318. INDEX. 451 COMMON LAW PROCEDURE ACT, 141. CONDITIONS OF SALE. Catalogue must refer to them, 33. Separation from Catalogue, id. Printed particulars, id. Notice of conditions, 35. Form used at Aldridge's, 435. At Tattersall's, 437. CONJUNCTIVA. Inflamed, 5Q. CONSIDERATION. Under sect. 4 of the Statute of Frauds, 6. Failure of it in the case of Sunday dealing, 28. Statement of, 149. Security for money lost at Play, 321. CONSPIRACY TO CHEAT. See Fraudulent Repre- sentation, Indictment, 117, 311, 312. CONSTABLES. May be authorized to enter a Betting House, 328. May be authorized to enter Gaming Houses, 332. And take into custody all persons there found, id. May visit licensed Billiard rooms, 336. CONTRACT. Executed and executory, 3. Entire, id. Severable, id. Verbal, id. Written, 4. Not to be performed within a year, 5, 284. Reduced to writing, 97. A foolish bargain, 122, 168. Affected by a delusion, 123. An impossible contract, 168. For Racing, 283. For Gaming or Wagering, 303. Security for money lost at play, 321, 324. CONTRACTION, 60. When held to be an Unsoundness, 61. CONVEXITY OF SOLE, 89. CORNS, 60. 452 INDEX. COSTS. Allowed in Indictment for cheating at play, 307, 393. Depriving plaintiff of, 53. Where damages are less than 40*., 260. In trespass after notice, id. COUGH, 60. COUNTERS. Evidence of a Gaming House, 333. May be taken, id. May be destroyed, id. COURSES. Schedule for Queen's Plate, 432. Courses at Newmarket, 434. COURSING MATCH, 289, 296, 313. COWHOCKED, 66. CRACKED HEELS, 70, 279, 340. CREDIT, 24. CRIB-BITING, 64. CRICKET MATCH, 279, 288, 313. CRIMINAL INFORMATION. Refused, 312. CROUPIER. At a Gaming-house, 334. CRYSTALLINE LENS. See Blindness. CURB, 66. CURLING, 279, 313. CUTTING, 66. D. DAMAGES. General Damage, 167. Special Damages, id. Statement of, 152. In actions for a certain sum, 167. Interest, id. In actions which sound in damages, 168. A foolish Bargain, id. An impossible Contract, id. INDEX. 453 DAMAGES— continued. Cannot be higher than (he amount laid, 169. In Goods bargained and sold, id. In Assumpsit for not accepting, id. In Assumpsit for not delivering, id. In Goods sold and delivered, id. In Money had and received, id. In Trover, 170. On Breach of Warranty, id. Where the Horse has not been tendered, id. Where the Horse has been tendered, id. Expense of Keep, id. Seller liable for reasonable Keep, 171. What is reasonable, id. Keeping the Horse till a Fair, 172. Expense consequent on a Warranty, id. Expense in selling, 173. Expense in advancing the Horse's value, id. Horse tendered and then sold by Auction, id. Expense of Veterinary Certificate and Counsel's opinion, 174. Travelling Expenses, id. Loss of a good Bargain, id. Re- selling with a Warranty, id. Evidence in Reduction of Damages, 162, 165. Where the Damages are very small, 175. Damages through negligent driving, 248. Where the party is killed, 249. Deodands abolished, 247. DARK. Wrong side of Road, 244, 351. DEALING-TALK, 121. DEATH. Of Principal, 101. DEFECTS. Latent, 100. Concealment, 124. Patent, 106. DEFENCE. See Pleading and Evidence for the De- fendant. DEFINITION OF SOUNDNESS, 5L DELIVERY AND PAYMENT. Rights of property and possession, 21. Executed and executory contracts, id. 454 INDEX. DELIVERY AND F AY WE^T— continued. Property may pass without delivery, 21. What immediately passes the property, id. Condition as to price ascertainable, id. Effect where not ascertainable, 22. Risk after sale, id. Goods to be made to order, 23. Goods to be delivered on a future day, id. Delivery and payment contemporaneous acts, id. Time not the essence of a contract, id. "When nothing is said about the time of delivery, id. Relative position of the parties, id. Seller's lien for the price, 24. Lien in case of an exchange, id. Conditional possession, id. Buyer's right of possession where goods are sold on credit, id. How it may be defeated, id. Seller's lien during possession, id. His right of stoppage in transitu, 25. Where goods are held to be in transitu, id. When anything remains to be done by seller, id. Effect of stoppage in transitu, id. Goods to be delivered before payment, id. Goods to be paid for before delivery, 26. Price directed to be sent by post, id. Post office order, id. Forged bank note, id. Banker's cheque, id. Bill of exchange, id. * Debt paid to a third party, 27. DELUSION. Affecting the contract, 123. DEMURRER, 142. DEODANDS. Abolished, 246. DEPOSIT, 227, 300. DERBY SWEEPS. Unlawful, 315. DICE. Unlawful, 313. Except Back-gammon, 314. Evidence of a Gan^ing-house, 333. INDEX. 455 DICE — continued. May be taken, 333. May be destroyed, id. Using false Dice, 309. DIGGING. For a Fox, &c. 256. DISEASES. Temporary, 54. Acute, id. Alterations in structure, 51. DISTANCES. For Queen's Plate, 432. Length of a Distance, 434. DISTRAINOR. His power of S"ale, 185. DISTRESS. Horse bringing goods to market exempt, 32. Guest's Horse at an Inn exempt, 182. Horse at a Farrier's exempt, 180. Horse at Livery not exempt, 193. DIVINE SERVICE, 178. DOG. Dog-stealing Act, 383. Dog fighting, 288, 318. Vicious animals, 250. DRAY. See Waggon. DRIVING. See Negligent Driving. DROPSY. Of the Skin, 67. Of the Heart, 68. DRUNKENNESS, 127, 176. E. EARNEST AND PART PAYMENT. Two kinds of earnest, 13. Symbolical, id. Pecuniary, id. Should be retained by vendor, id. 456 INDEX. EARNEST AND PART FAYMEl^T— continued. The old rule, 14. Effect of earnest under Statute of Frauds, id. Effect of part-payment, id. EARTH. Running a Fox, &c., 256. EDWARD THE SECOND. Reign of, 265. EDWARD THE THIRD. Reign of, 265. EDWARD THE SIXTH. Reign of, 268. ELECTION. Wager on result, 299. ELIZABETH, Reign of, 269. Statutes. See Table of Statutes. ENLARGED GLANDS, 68. ENLARGED HOCK, 68. ENTRY. For a Race, 283. Into a Betting-house, 328. Into a Gaming-house, 332. EVIDENCE. See Pleading and Evidence. EWE NECK, 68. EXCHANGE. See Buying, Selling and Exchanging. EXPENSE OF KEEP. See Damages. EYE. Loss of, 107. F. FAIRS AND MARKETS OVERT. Sales at fairs and markets overt, 41. The general rule of law, 42. When market overt is held, id. Where market overt is held, id. What held to be market overt, id. Where a Horse at a fair is exempt from distress, id. INDBX. 457 FALSE QUARTER, 68. FARCY. Water Farcy, 69. FARRIER. Cannot refuse to shoe a Horse, 186. When brought at a reasonable time, id. Answerable for his own want of skill, id. Where a third person is affected, id. When answerable for his servant, id. Collins V. Rodway, id. Rule as to farriers, 188. No insurance against injury, id. Peculiar difficulties should be mentioned, id. Coming at an unseasonable hour, 189. Farrying, &c., in the street, id. Horses standing to be shod not distrainable, id. Farrier may recover for work, labour and materials under a general count, id. Horse may be detained for the price of his shoeing, id. Such lien is favoured by law, 190. Extends only to each particular time, id. Liability to feed a Horse detained, id. FAVOURITE MARE. Annuity for her keep, 337. FENCING MATCH, 279, 313. t FER^ NATURE, 250. FEROCIOUS AND VICIOUS ANIMALS. Wild and tame animals, 250. What ought to be the liability of the person keeping them, id. The Athenian and Roman Law, 251. The French Code, id. Argument in Mason v. Keeling, id. Recent decision in Scotland, id. In England a scienter is held necessary, id. Where a dog bites a person, 252. Not enough to show that the dog was of a fierce dis- position, id. Report that dog had been bitten by a mad dog, id. Where a dog worries sheep, id. Dictum of Mr, Justice Maule, id. Where a Horse bit some other Horses, id. Breaking Horses in a public place, 253. Where a mad bull wounds a person, id. 458 INDEX. FEROCIOUS AND VICIOUS \^IMALS— continued. Where a vicious beast kills a person, 253. Owner bound to secure a vicious animal at all events, id. He is liable to an action on the Case for damages, id. The gist of the action, id. Not necessary to prove negligence, id. An unruly Horse escaping from a stable, id. Injury occasioned by a vicious bull, 254. Shooting a dog for worrying sheep, id. Shooting a dog for worrying fowls, id. FERRY. Carrying Horses, 219. FISTULOUS WITHERS, 80. FIVES, 279, 313. FOOD. Innkeeper must charge a reasonable price, 182. Liability to feed a Horse detained, 182, 184, 185. Hired Horse refusing his feed, 201. Borrower bound to feed the Horse, 213. FOOLISH BARGAIN, 122, 168. FOOT-BALL, 279, 313. FOOT-PASSENGER. Rule of the Road does not apply, 243. Has a right to cross a road, id. FOOT-RACE, 279, 312, 313. FORCE. May be used in entering a Betting-house, 328. May be used in entering a Gaming-house, 332. FOULING, 293. FOUNDER, 69. FOX. See Hunting and Trespassing, 255. FRAUD. Horse returnable, 289. FRAUDULENT CONTRACTS. Where the law does not interfere, 117. Where several persons combine to cheat, id. Conspiracy to cheat indictable, id. There must be evidence of concert, id. INDEX. 459 FRAUDULENT CONTRACTS— continued. What evidence has been held insufficient, 117. Indictment for obtaining money by false pretences, 118. Where only one person cheats an action lies, id. Chandelor v. Lopus, id. Remarks on that case, 119. Form of action, id. Foundation of the action, id. In what fraud consists, id. There must be moral fraud, 120. How the question of fraud is to be decided, id. Falsehood must be followed by damage, id. A naked lie no cause of action, id. Presumption that person defrauded was influenced, by the misrepresentation, id. Due caution must always be observed, 121. Caveat emptor, id. A visible defect and a nude assertion, id. Dealing talk, id. A foolish bargain, 122. Representation known to be untrue, id. Made before a sale by auction, id. Made by a bidder at an auction, id. Representation not known to be true, id, A well-grounded belief, 123. Delusion affecting the contract, id. Representation to prevent inquiries, id. Representation through a third party, id. Representation by a third party, id. A bond fide representation, 124. Representation as to credit, id. Horse sold " with all his faults," id. Vendor held not liable for latent defects, 125. Defects fraudulently concealed, id. Plugging, &c., 126. Contract made voidable by fraud, id. Where fraud is practised upon the buyer, id. Where he continues to deal with the article, id. Where fraud is practised upon the seller, id. Resale by the buyer, id. Contract with intent to cheat the seller, 127. Preconceived design of not paying for goods, id. Question for the jury, id. Resale at a reduced price, id. Unstamped agreement admissible to prove fraud, 127. Payment by a check which is dishonoured, id. Drunkenness of a contracting party, id. Goods kept by the party when sober, 128. X 2 460 INDEX. FURIOUS DRIVING, 222. Deodands abolished, 247. FURIOUS RIDING, 343. G. GAMES AND GAMING. Gaming not unlawful, 309. Where a London apprentice " frequents Gaming," id. Where a Clergyman plays at unlawful Games, id. Unfair or excessive Gaming, id. Using false dice, id. Winning exorbitant sums, id. Losses by a bankrupt, 310. Cheating in a Game or at Play, id. The fraud or unlawful device, 311. Conspiracy to cheat at skittles, id. Conspiracy to cheat at cards, id. Where a criminal information was refused, 312. Contracts for Gaming, id. Money deposited for Gaming, id. French Law as to Games, id. English Law as to Games, id. The word Game, 313. Lawful Games, &c., id. Lawful Gaming or Play, id. Unlawful Games, id. Cock-fighting, bull -baiting, &c., 318. Within the Metropolitan District, 319. Gaming in a public house, id. Where money is staked, id. Where money is not staked, id. Money lent for Gaming, 320. Test where the transaction is illegal, id. Securities for money lent for Gaming, id. Action on a promissory note, id. Identification of promissory note, id. An I. O. U., 321. Money lost at Play, id. Securities for money so lost, id. Action against acceptor of bill of exchange, 323. Action by acceptor of bill of exchange, 324. Recovery of principal and interest, id. Evidence of owner of a Gaming House, id. Summons to set aside a warrant of attorney, id. A post obit security held good, id. INDEX. 461 GAMING HOUSES. A Common Gaming House, 329. Indictment for keeping one, 330. Charge in the indictment, id. Any person may go on with it, id. Statutory provisions for an indictment, id. Notice by two inhabitants, id. Binding over the party accused, id. Duty of overseers of the poor, 331. Penalty where constable neglects his duty, id. Setting up or playing at Hazard, &c., id. Evidence that Hazard was played, id Rent of a Gaming House, id. A subscription club, id. What is a Commom Gaming House under 8 & 9 Vict. c. 109.. 332. Evidence on an information for playing Hazard, id. Power of Justices, id. In the Metropolitan District, 333. Evidence of Gaming, id. Difficulty of obtaining evidence, id. Penalties on Gaming House Keepers, 334. Penalty for playing, id. Gaming for money need not be proved, id. Witnesses indemnified, id. Proceeding by indictment not prevented, 335. GATES. Of a field, 261. Of a Railway Crossing, id. Of a Railway Station, id. GEORGE THE FIRST. Reign of, 274. Statutes. See Table of Statutes. GEORGE THE SECOND. Reign of, 274. Statutes. See Table of Statutes. GEORGE THE THIRD. Reign of, 276. Statutes. See Table of Statutes. GEORGE THE FOURTH. Reign of, 276. Statutes. See Table of Statutes. GIBBING, 69. 462 INDEX. GLANDERS, 69. Infectious to mankind, 70. The recent act, 420. GLASS EYE, 70, 107. GOLF, 279, 313. GOODS BARGAINED AND SOLD. For payment of the Price, 144. Proof for the plaintiff, 152. Defence, 162. Damages, 169. GOODS SOLD AND DELIVERED. For payment of the Price, 145. Proof for the plaintiff, 153. Defence, 161. Damages, 169. GRASS. See Innkeeper and Agister. GREASE, 70. GROGGINESS, 70. GRUNTING, 71. GUEST. See Innkeeper. GUTTA SERENA, 71, 107. H. HACKNEY CARRIAGES. Statutes, 409, 418, 434, 435. HANDSALE, 5. HARE, 258,402, and see Hunting and Trespassing, 255. HARNESS. Quiet in, 68. HAZARD. An illegal game, 314, 331. HEATS. Rules under Queen's Plate Articles, 431. Rules of Racing and Betting, 427. INDEX. 463 HENRY THE FIRST. Reign of, 264. HENRY THE SECOND. Reign of, 264. HENRY THE FOURTH. Reign of, 265. Statute. See Table of Statutes. HENRY THE SEVENTH. Reign of, 265. Statutes. See Table of Statutes. HENRY THE EIGHTH. Reign of, 266. Statutes. See Table of Statutes, HEREDITARY DISEASE, 71. HIRING HORSES. Letting for Hire, 200. Warranty of fitness for a journey, id. Where a particular Horse is selected, id. What care is required, id. Infancy good defence to an action, id. Where Hirer is answerable at all events, id. Unnecessary deviation, id. Where Negligence must be proved, 201. Where the Horse falls lame, id. Where the Horse is exhausted, id. Where the Horse refuses his feed, id. Where the Horse is returned in worse condition, id. Expenses of curing Sick Horse, 202. Where the Horse is improperly doctored, id. Who must pay for shoeing, id. Bailment determined by selling the goods, id. Where the Horse is stolen from the Hirer, id. Where the Horse is stolen by the Hirer, 203. Must have been originally taken with a felonious inten- tion, id. Horse hired by a servant, id. Owner's liability in case of accident, 204. Horses driven by the owner's servants, id. Horses driven by the owner's servants to a certain place, id. Travelling Post, 205. Horses driven about town by the owner's servants, id. Laugher v. Pointer, id. 464 INDEX. HIRING HOUSES— continued. Owner held liable in Quarman v. Burnett, 205. Wearing the Hirer's livery, 206. A job-master's agreement, id. "Where the Hirer is liable for damage, id. Hirer liable through his own conduct, 207. Hirer liable where he might have controlled his servant, id. McLaughlin v. Pryor, 207. Opinion of the Court of Common Pleas, 208. The general rule, id. Where the hirer would not be liable, 209. Hirer sitting outside liable, id. The jury must decide whether the servant is acting for the hirer or owner, 210. A hirer's agreement, id. HOCK, 72. HORSE-BREAKER. Liable for damage, 190. Has a lien, id. HORSEDEALER. Definition of a Horsedealer, 30. A Seller on Commission, id. The Proprietor of Aldridge's, 31. Duty payable by a Horsedealer, id. Horsedealer to keep a Book, id. Decision of the Assessor, id. Giving a Warranty on a Sunday, 27- His servant forbid to warrant, 104. General Rule, 105. HORSE-RACES, See Racing, Rules of Racing and Betting. HORSE STEALING. Statute of Geo. 4.. 42 Description in an Indictment, 43. When the Offence is complete, id. Property given up, id. Delivery of a Horse to a Stranger, id. Delivery on Trial, id. Goods taken without Consent, 44. Appropriation of a hired Horse, id. Larceny without Proof of Sale, id. Taking with an Intent to use, id, Possession Six Months after Loss, id. Killing or maiming Horses, 45. Pouring Acid into a Mare's Ear, id. And see Stolen Horses. INDEX. 465 HOSTLER. See Innkeeper, 177. HOTEL-KEEPER, 178. HUNTING AND TRESPASSING. Fresh pursuit over another's land, 255. Pursuing vermin, id. No unnecessary damage, 256. Digging for a fox, &c., id. Hunting for amusement, id. Earl of Essex v. Capel, id. Hunstman liable for damage done by the field, 257. Master of hounds, when responsible for the field, 258. Hupting a hare on another's land, id. Taking a stag on another's land, id. Hunting a stray deer, id. Who may kill hares without a game certificate, id. Any person may hunt hares, id. Continued trespass, id. Trespass in search of game, 259. Hunting with hounds or greyhounds, id. Laying hands on a trespasser, id. Opposing force to force, id. Defence to an action, id. Horse with a rider cannot be distrained, id. Action of trespass lies for riding over land, 260. But not where a dog jumps into a field, id. Costs where d^.mages are less than 40s., id. A trespass after notice, id. Notice under 3 & 4 Will. 4, c. 24, s. 8. .id. Notice transmitted by post, id. Maintenance of fences, id. Gate of a field left open, 261. Gate of a railway crossing left open, id. Gate of a railway station left open, id. I. IMPOSSIBLE CONTRACT, 168. INDICTMENT, May be maintained for collusion on a sale, 117. But not where one person sells an unsound Horse, id. Horsestealing, 43. Stranger getting possession of a Horse, id. Innkeeper refusing to receive a Traveller, 179. What such Indictment must state, id. Innkeeper guilty of extortion, 182. x5 466 INDEX. INDICTMENT— cojiHnued. Stealing a hired Horse, 203. Killing a person by negligent driving, 222, 224, 343. Lotteries public nuisances, 314. Running booty in a Wager, 306. Cheating in a Wager, 307. Cheating in a Game or at Play, 309, 310. To be deemed obtaining money by false pretences, id. Punishment, 307. Excessive and unfair Gaming, 309. Keeping a House for playing Rouge et Noir, 330. What the Indictment should charge, id. Will lie against a Betting-house keeper, 326. Or a Gaming-house keeper, 330. , But not after summary conviction, id. INFANT, 20. Indictment against, 309. INNKEEPER. His Business, 177. Definition of an Inn, id. Derivation of Hostler, 178. Who is a Guest, id. What an Innkeeper undertakes, id. He must close during morning and afternoon service on Sundays, id. But not during evening service, id. Who is a " Traveller," id. Innkeeper compellable to receive a Traveller, id. May be indicted for refusing, 179. What has been held to be no defence, id. Sickness, Drunkenness, &c., id. Action for compensation, id. Not liable for refusing to supply Post Horses, id. Traveller not entitled to select particular apartments, id. Innkeeper's liability, id. Where a Guest's Horse is stolen, 180. Where another person's Horse is stolen, id. Horse out at grass by the guest's desire, id. Horse out at grass without the guest's desire, id. Where a guest's Horse is injured, 181. Presumption of negligence, id. A guest's goods not distrainable, id. Even where he is accommodated out of the inn, id. Or uses a stable provided for the occasion, id. A reasonable price must be charged for keep, 182. Innkeeper has a lien on a Horse for it, id. Cannot detain a guest for his bill, id. INDEX. m'^KEEVER— continued. But may detain his Horse, 182. His right of lien, id. Horses and carriages sent to livery at an inn, id. Cannot sell one Horse for the keep of others, id. Has a lien on a Horse left by a wrong-doer, 183. But not if he knew it at the time it was left, id. A Horse left by the police, id. Giving a guest credit, id. A third party when answerable, id. Horse removed to defeat the lien, id. Innkeeper forbid to give more food, 184. He cannot use a Horse he detains, id. He cannot sell a Horse he detains, id. It was once held otherwise, 185. Distrainor may sell a Horse for his keep, id, INSOLVENT, 24. INSPECTION. Of a Horse by the jury, 342. INSTRUMENTS OF GAMING. May be taken, 333. And destroyed, id. Used for billiards, 335. INTEREST, When recoverable, 167. INTERPLEADER, 94. INVENTORY, 113. I. O. U. For money borrowed to pay bets, 306. For gaming debt, 221. J. JAMES THE FIRST. Reign of, 270. Statutes. See Table of Statutes. JOBMASTER. Letting for hire, 200. His agreement, 206. JOCKEY. Professional, 292. Receiving his expenses, 296. 467 468 INDEX. JOCKEY CLUB, 427. Courses governed by their Rules, 294>. Arbitration by them, 295. Will not entertain matter of fact, 294, JOHN. Reign of, 265. JUDGE OF A RACE, 291. JULIUS CESAR. His time, 263. K. KEEP. Recovering the cost of, 170, 172. Innkeeper must charge reasonably, 182. Has a lien on a Horse, id. Legacy to keep a favourite Mare, 337. And see Lien. KICKING, 72. Horse kicked at an Inn, 181. KIDNEY-DROPPING. An Unsoundness, 72. KILLING OR MAIMING, 45. KNUCKLING OVER, 70. L. LADY. Horse to carry, 99. LAMENESS. Temporary lameness an Unsoundness, 72. LAMINITIS, 73. LAMPAS, 73. LATENT DEFECTS, 100. Seller not bound to disclose, 121. LIE, 120. LIEN. Innkeeper has, 183. Farrier has, 189. INDEX, 469 LIEN — cov tin tied, Horsebreaker has, 191. Stallion-master has, 192. Trainer has, 191. Livery-stable keeper has not, 195. Agister has not, 198. Horse removed to defeat lien, 196, 199. Horse detained cannot be sold or used, 184. Feeding a Horse so detained, 185. LISTS. For betting, 328, 424. LIVER DISEASE, 74. LIVERY. Servant wearing a Hirer's, 206. LIVERY-STABLE KEEPER. Elmore v. Stone, 9. Has no privilege, 194. Liable where the Horse is lost, 195. Horse at livery distrainable, id. But not where he is merely to be cleaned and fed, id. Distinction taken in Parsons v. Gingell, id. Livery-stable keeper has no lien for keep, id. May have a lien by agreement, id. Horse removed to defeat such lien, 196. What cannot be set off in an action for keep, id. LOTTERIES. Lotteries declared nuisances, 314. Penalty for keeping a Lottery, id. Penalty for drawing at a Lottery, id. Littlegoes declared nuisances, 315. Penalty for keeping a place for a Lottery or Littlego, id. Penalty for suffering any Lottery to be drawn, id. Justices have no summary jurisdiction, id. Racing Sweeps, id. Sale of property by lot, 316. Attempt to evade the law, id. Art Unions, id. A Lottery of Houses, id. Ballot in Land Societies, 317. Allotment or partition by lots, id. Choice of allotiVfents, id. The Conservative Land Society, 318. Repayment of money, id. LUNGS. Htpatized, 74. 470 INDEX. M. MAIMING, 45. MALLENDERS, 74. MANAGER. Of a Bettinghouse, 327. Of a Gaminghouse, 332. MANGE, 74. MANSLAUGHTER. See Negligent Driving, and Ap- pendix, 343. MANSUET^ NATURtE, 250. MARKETS. See Fairs and Markets overt. MARRIED WOMAN. May be an agent, 20. Keeping a Gaminghouse, 330. MARY. See Philip and Mary. MASTER OF HOUNDS. Liable for damage, 258. When done by the field, id. MASTER OF THE HORSE. What disputes he may decide, 43 L MASTIFF, 252. MATCHES, 285, 296. MAYORS, 357, 385. MEMORANDUM. See Note or Memorandum in Writing. METASTASIS. In the Horse, 342. METROPOLITAN DISTRICT. Cockfighting, &c., 47, 319. Entering Bettinghouses, 329. Or Gaminghouses, 333. MISCHIEVOUS ANIMALS, 250. MISJOINDER, 143. INDEX. 471 MONEY. Tendered, 156. Borrowed to pay Bets, 306. Sum to be awarded to the winner, 312. Deposited for Gaming, id. Staked in a Public house, 319. Lost at Play, 321. Lent for Gaming, 320. Found in a Gaminghouse, 333. Received in a Bettinghouse, 327. Payment to winner of the Queen's Plate, 433, MONEY HAD AND RECEIVED. For repayment of the price, 146. For repayment of part of the price, id. Proof for the Plaintiff, 153. Defence, 163. Damages, 169. MORAL FRAUD, 120. MORTGAGE. Given for a Gaming consideration, 304, 320, 321. Void between the parties, 321. Good in the hands of a bond fide holder, id. MURDER. See Negligent Driving, and Appendix, 343. N. NATURAL USEFULNESS, 52. NATURE OF UNSOUNDNESS, 110. NAVICULAR JOINT DISEASE, 74, 343. NEGLIGENCE. See Hiring Horses, Borrowing Horses. NEGLIGENT DRIVING. Where killing a person is held to be Murder, 222. Where killing a person is held to be Manslaughter, id. Furious driving, id. Carriages racing, id. Driver unable to pull up, 223. Where killing a person is held to be Accidental Death, id. And the driver is not liable, id. Trotting a waggon along a road, 224. Trotting a waggon along a street, id. Remarks in East's Pleas of the Crown, id. 472 INDEX. NEGLIGENT BTUXmC—cov tinned. Where streets are unusually crowded, 224. Where driver is indictable under 1 Geo. 4, c. 4. .225- Furious driving in the Metropolitan Police District, id. Power of police constables, id. Conviction no bar to Action of Trespass, id. Where party injured by negligent Driving may maintain an action, id. Action lies for negligence in the care of vicious Horses, &c., id. Where another person strikes a Horse, id. Damages recovered in Trespass, 226, Driving furiously round a corner, id. Mail Cart rapidly entering Post Office Yard, id. Frightening a Horse, id. Horses run over on a railway, 227. Rules as to civil liability, id. Negligence on one side only, 228. Passenger thrown from an Omnibus, 229. Horse and cart left standing in the street, id. Damage from tackle breaking, id. Or from defect in the carriage, id. Negligence on both sides, 230. Where the negligence of the injured party did not con- tribute to the accident, id. Where such negligence occasioned part of the mischief, id. A Wrongdoer not without the pale of the law, id. Driving against an ass fettered on the road, irf. Question of ordinary care, 231. Circumstances of the case must be left to the jury, id. Horse injured in being led out of the stable, id. Horse and cart left in the street, 232. Judgment of the Court of Queen's Bench, id. A heap left on a highway, 236. Opportunity of seeing the obstruction, id. Running over stones at night, id. Leaving the highway, id. Liability of a Contractor, 237. Where there are several ways of doing a thing, id. Liability of an employer, id. What is the question in all cases, id. Stones left by a Sub-Contractor, id. Performance of an ordinary domestic duty, 238. Manure left on a road, id. Both parties to blame, id. Case of Thorogood v. Bryan, 239. Remark in Smith's Leading Cases, id. Power of selection, id. INDEX. 473 NEGLIGENT DRIY IN G— continued. Altogether an Accident, 240. Running over a person at night, id. Horse running away, 241. NEGLIGENT DRIVING BY A SERVANT. When the Master is liable, 244. Master and Servant driving: toofether, id. Servant entrusting the reins to a stranger, id. Servant striking the Horse of another, 245. Servant removing an obstruction, id. Servant acting improperly, id. Making a detour for his own purposes, id. Servant acting contrary to his trust, 246. Taking his Master's Horse without leave, id. Taking the Horse of another, id. Master's name on the cart, 247. Giving an address, id. Action for bodily hurt, id. Liability of Master and Servant respectively, id. Action by representatives of a person killed, id. Plan of the locality, 248. Damages, id. Responsibility for " all possible consequences," id. Injury done to a carriage, id. Measure of damages where a Horse has been injured, id. Damages where a person has been killed, 249. NERVED HORSE. Held to be unsound, 74. NEWMARKET, 326. Names and lengths of the Courses, 434. NONJOINDER, 143. NOSE. Chronic discharge, 75. Nasal gleet, id. NOT LYING DOWN, 75. NOTE. See Bank Note, Promissory Note. NOTE OR MEMORANDUM IN WRITING. Written agreement, 14. No particuar form required, id. Names of the contracting Parties, 15. Terms of the Contract, id. The Stamp Act, id. Catalogue at a Sale, id. 474 INDEX. NOTE OR MEMORANDUM— continued. Price where agreed upon, 15. Where no Price is agreed upon, 16. Contract by letter, id. Sufficient between the parties, id. Must express all the terms of the Agreement, id. Mutual assent, 17. When the Contract is complete, 18. Terms cannot be varied by parol, id. Evidence that goods are supplied on credit, id. Matters antecedent to the writing, 19. When admissible, id. Memorandum made after action, id. A foreign Contract, id. NOTICE. Of conditions of sale, 33, 35. Of the Breach of Warranty, 129. Of the Nature of the Unsoundness, 159. Buyer not bound to give it in either case, 129, 159. Length of time before it is given, 137. NUDE ASSERTION, 121. . O. OMNIBUS. Racing, 222. Passenger thrown from one, 229. Case of Thorogood v. Bryan, 239. Regulations in London, 409, 434. OPACITY OF THE LENS. Held to be an Unsoundness, 56. ORDER. Goods made to, 23. OSSIFICATION OF THE CARTILAGES, 76. OTTER. See Hunting and Trespassing, 255. OVERREACH, 76. OWL, 168. PAROTID GLAND. Ulcerated, 76. P. INDEX. 475 PART PAYMENT. See Earnest and Part Payment. PARTY TO BE CHARGED. See Signature. PASSAGE. Illegal game, 275, 314. PATENT DEFECTS. Not covered by a Warranty, 106. In what they consist, 107. Loss of an Eye or Tail, id. How far the loss of an Eye is Patent, id. Glass- eye, id. When the buyer knows the Defects, 108. Where Defects are discussed, id. Question for the Jury, 107. Suspected Defects, 109. Purchase without inspection, id. PAYMENT. See Delivery and Payment. PEDIGREE. Selling according to, 113. When fu-st attended to, 272. Entry for the Queen's Plate, 430. PHARAOH. An illegal game, 314, 365. PHILIP AND MARY. Reign of, 260. Statutes. See Table of Statutes. PIMPLE ON THE SKIN, 80. PLAN OF THE LOCALITY. Of an accident, 248. What it shoifld show, id. PLASTERING A CRACK, 125. PLATE. To be awarded to the winner, 283. Queen's Plate Articles, 430. PLAY OR PAY. Evidence admitted to explain, 297. Its effect where the Horse does not start, id. PLEADINGS IN GENERAL. Their language and form, 141. 476 iXDEx. PLEADINGS IN GE'NERAL— continued. Fictitious and needless averments not to be made, 141. Judgment upon demurrer to be given according to the very right of the Cause, 142. Objections by way of special demurrer taken away, id. Pleadings framed to embarrass may be struck out or amended, id. Pleadings to be dated and entered as of the time of pleading, unless order to the contrary, id. Performance of conditions precedent may be averred generally, id. Power of amendment, 143. Misjoinder and nonjoinder of plaintiffs, id. Misjoinder and nonjoinder of defendants, id. Amendment of defects and errors in any proceedings, id. PLEADING AND EVIDENCE FOR THE PLAINTIFF. Executory and executed contracts, 144. Goods bargained and sold for payment of the price, id. Assumpsit for not accepting, id. Resale of the goods, id. Assumpsit for not delivering, 145. Goods sold and delivered for payment of the price, id. Horses sold and delivered, id. Money had and received for repayment of the price, 146. Money had and received for repayment of part of the price, id. Money had and received for price of Horse wrongfully sold, id. Money received subject to certain conditions, 147. A count on an account stated, id. Assumpsit on a breach of warranty, id. Case for a false warranty, id. Liability of an infant, 148. Case for fraudulent representation, id. The inducement in Assumpsit, id. The inducement in Case, id. Statement of the consideration, 149. If the Horse turn out lucky, id. Words used in the statement, id. Statement of the promise or warranty, 150. Condition annexed to the promise or warranty, id. Qualification of the promise or warranty, id. The purchase and the payment, 151. Statement of the false warranty or fraudulent represen- tation, id. Statement of the breach, id. Statement of the damage, 152. Proof in goods bargained and sold, id. INDEX. 477 ILEADING AND EVIDENCE FOR THE PLAINTIFF — continued. Proof in Assumpsit for not accepting, 152. Meaning of readiness and willingness, 153. Proof in Assumpsit for not delivering, id. Proof in goods sold and delivered, id. Proof in money had and received, id. Proof of an account stated, 154. Proof in Assumpsit on a Breach of warranty, id. Proof in Case for a false warranty, id. Proof in Case for fraudulent representation, 155. Proof of the bargain and sale, id. Proof of the consideration, id. Proof of payment of the price, 156. Appropriation of the money tendered, id. A late case, id. Proof of the promise or warranty, 157. Warranty in a receipt not always conclusive, id. Written warranty requires no agreement stamp, 158. A warranty not contained in the receipt, id. Where authority to warrant need not be proved, id. Where authority to warrant must be proved, id. Proof of power to rescind, id. Proof of fraudulent representation, 159. Proof of the breach of warranty, id. Notice of the nature of the unsoundness, id. Evidence as to unsoundness, id. Matter of fact alone, 160. Either fact or veterinary opinion, id. Both fact and veterinary opinion, id. Veterinary opinion alone, id. Evidence as to vice, id. Evidence as to unfitness, &c., id. Proof of recision, id. Proof of tender, id. PLEADING AND EVIDENCE FOR THE DEFEND- ANT. What must be specially pleaded, 161. Defence for goods bargained and sold, and in Assumpsit for not accepting, id. Defence in Assumpsit for not delivering, id. Where Evidence of usage of trade is not admissible, 162. Defence for goods sold and delivered, id. Defence to action on a cheque for the price, id. Evidence in reduction of damages, id. Defence for residue of the price, 163. Defence for money had and received, 163. Defence in assumpsit on a breach of warranty, id. 478 INDEX. PLEADING AND EVIDENCE FOR THE DEFEND- ANT — continued. A surreptitious warranty, 164 Condition annexed to a warranty, id. Evidence in reduction of damages, 165. Defence in Case for a false warranty, id. Defence in Case for fraudulent representation, id. Disputing the warranty, 166. Disputing the unsoundness, &c., id. Subsequent recovery, id. Competency of witnesses, id. The late acts, 167. PLUGGING, 126. POISON. Not to be laid for hares, 258, 402. POLICE. See Constables, Betting Houses, Gaming- houses. POLICY. Wagering, 303. POLL-EVIL, 77. POST-HORSES, 179. Statutes, 434. POST-OFFICE ORDER. Payment of debt, 26. POSTING. Damage done when, 205. P. P., 297. PRICE. Under jglO, 4. Day agreed upon for payment, id. £,\h or upwards, 6. Material part of the bargain, 15. PRINCIPAL AND AGENT, 100. Rule, 102. PRIZE. To be awarded to the winner, 283. PROFESSIONAL JOCKEY, 292, 296. INDEX. 479 PROMISSORY NOTE. Given for a Gaming consideration, 321. Void between the parties, id. Good in the hands of a bond fide holder, id. Effect of payment, id. PROOFS. See Pleading and Evidence. PUBLICAN. Allowing gaming, 319. Lending money for Unlawful gaming, 320. PUFFING. At an Auction, 37. Sale void, 38. PUMICED FEET, 77, 340. PUNCTURE. In nailing, 186. PUTTING STONE, 279, 313. Q. QUEEN'S PLATE. Articles, 430. QUIDDING, 77. QUIET. In harness, 68. QUITTOR, 77. QUOITS, 279, 313. R. RACING. The Law as to Racing, 283, 427. Sweepstakes, 283. Matches, id. The Act for the Suppression of Betting Houses, id. Entry for a Race, id. Race not to be run within a year, 284. " Scratching" a Race Horse, id. Terms of a Race, 293. Rules of a regatta, id. Stewards, &c., cannot waive any Condition of a Race, 294. 480 INDEX. RACING — continued. Rules of the Jockey Club, 294. Arbitration of the Jockey Club, 295. Sporting Phraseology, id. A " Selling" Race, id. A professional Jockey, 296. Horse regularly hunted with Hounds, id. Match for a particular meeting, id. RACKETS, 279, 313. RAILWAY. See Carrying Horses, Hunting and Trespassing. RAT-TAILS, 78. REARING, 75. RECEIPT. See Acceptance and Receipt, Stamp. RECISION. Right of, 4. Money had and received lies, 146. Proof of Recision, 154. REGATTA, 279, 313. Rules of, 293. REINS. Breaking, 229. No defence, 243. . Entrusted to a Stranger, 244. REMITTENT INFLAMMATION, 56. REPLEVIN, 47. REPOSITORIES. See Auctions and Repositories. REPRESENTATION. Distinguished from a Warranty, 111. The correct Rule, 112. RE-SELLING, 174. RETURN. See Breach of Warranty. RICHARD THE FIRST. Reign of, 264. RICHARD THE SECOND. Reign of, 265. Statutes. See Table of Statutes. INDEX. 481 RINGBONE, 78. RISK. After sale, 22. ROARING. Decisions on the subject, 79. ROLLING, 80. ROUGE-ET-NOIR, 330. ROULET, OR ROLY POLY. Prohibited, 314. ROWING MATCH, 279, 293, 313. RULE. As to acceptance and receipt, 7. As to Unsoundness, 51. As to Vice, 54. As to Principal and Agent, 102. As to a Servant binding his Master, 105. As to Warranty and Representation, 112. As to Farriers, 188. In trespass, 208. As to civil liability in negligent driving, 227. RULE OF THE ROAD. Right side of the road, 241. Driving on the wrong side in the dark, id. Seeing a person coming on his wrong side, id. Does not justify a wanton Injury, id. Rule of the Road not inflexible, 242. Parties meeting on a sudden, ?c?. Rule of the Road applies to Saddle Horses, id. Foot Passengers, 243. Rule of the Road does not apply, id. Going over a crossing, id. Nuisance on Public Higbway, id. Horse and Carriage before tradesman's door, 244. RULES OF RACING AND BETTING, 427. RUNNING AWAY, 80, 343. RUNNING HORSES, 264, 268. 482 INDEX. s. SADDLE GALLS, 80. SADDLE HORSES. Rule of the Road applies, 242. SAILING MATCH, 279, 313. SALE. What is, 3. Hand sale, 5. By an Agent, 1 00. Conditions at Aldridge's, 435. Conditions at Tattersall's, 437. SALE OR RETURN, 156. SALLENDERS, 81. SANDCRACK, 81, 342. SCAB, 82. SCHEDULE. Of Weights, Queen's Plates, 432. Of Distances, id. SCIATIC NERVE, 86. SECURITIES. See Gaming, Gaming-Houses. SERVANT. See Warranty and Sale by an Agent, Hiring Horses, and Negligent Driving by a Servant. SET-OFF, 161. SHAFTS. Breaking, 229. SHEEP, 127. SHERIFFS, 357, 385. SHIVERING, 82. SHOULDER-TIED, 109. SHYING, 82. SIDEBONES, 82. INDEX. 483 SIGNATURE. By the Party to be Charged, 19. May be in the beginning or middle of the instrument, id. It is then open to the Jury whether the Party meant to bind himself, id. By a printed name, id. By filling up a printed invoice, 20. By an Agent, id. Authority may be conferred by word of mouth, id. Auctioneer, Agent and Witness of both parties, id. Auctioneer's Clerk, 21. SKITTLES, 311. SLAUGHTERING HORSES. Statutes, 435. SLIPPING THE COLLAR, 82. SMITH. See Farrier. SOUNDNESS. Definition of, 51. SPAVIN, 83. SPEEDY-CUT, 83. SPLINT. Decision on the subject, 83. Sprain and thickening of the back Sinews, 84. SPORTING PHRASEOLOGY. Across country, 295. A Selling Race, id. P.P., 297. STAG. See Hunting and Trespassing, 255. STAGGERS, 71. STAKE. Clerk of the Course usually Stakeholder, 285. Has no right to the Stakes, id. Cannot set-oft' an unpaid Stake, id. Where he may cash a cheque, id. Stake must abide the event of a legal contract, id. A Foot Race, 286. A recent decision, id. Recovery of Money paid on an illegal contract, id. What the party should do, id. Demand before the Money is paid over, id. Y 2 484 INDEX. STAKE— continued. Bringing an action not sufficient, 287. Where the Money is paid over without dispute, id. Where a Horse is disqualified, id. , Where owner knows the disqualification, id. Proper Party to receive the Stakes, 288. Winner may maintain an action, id. Under what circumstances, id. A Cricket Match, id. A Wrestling Match, id. A Dog Fight, id. Loser may recover his Stake where there has been Fraud, id. How he may waive his claim, 289. Where a Stakeholder may recover from the winner, id. STALLION-MASTER. Has a lien, 192. For work done on a Sunday, id. STAMP, 156, 158. STAND, 297. STAR-GAZER. Ewe-necked, 84. STATUTE OF FRAUDS. The 4th Section, 6. Requisites under sect. 4, id. Whole contract must be in writing, id. The 17th Section, id. Acceptance and Receipt, 7. Earnest, 13. Part Payment, id. Note or Memorandum in writing, 14. Bill of Parcels, id. Catalogue at a Sale, 15. Contract by letter, id. Signature by Pai'ty to be charged, 19. Signature by an Agent, 20. Need not be authorized in writing, id. Delivery and Payment, 21. STEWARDS. Their duties, 289. Disputes to be settled by them, 290. Award should be made by all, id. Custody of the Stakes in the mean time, id. INDEX. 485 STEWARDS— continned. Stewards' decision maintained by the Court of Exche- quer, 291. Appointment of a Judge, id. Negligence in not appointing one, 292. Decision of the Umpire or Committee, irf. Ordering off the Grand Stand, 297. Ordering goods, 298. STOCK JOBBING ACT, 302. STOLEN HORSES. Recovery of them, 45. Sale in market overt, id. Statutory regulations, id. Recovery when sold under these regulations, id. Owner must prove the Horse was stolen, 46. Sale out of market overt, id. Recovery when not sold under these regulations, id. Owner must first endeavour to bring the thief to justice, id. But not where the action is against a third party, id. Order for restitution, 47. Or action of Trover, id. Order of police magistrate, id. Where no special damages can be awarded, id. Replevin for unlawful taking, id. And see Horse Stealing. STOPPAGE. In transitu, 25. STRANGLES, 85. Striking another's Horse, 159, 160. A servant, 168. STRINGHALT. Held to be an Unsoundness, 85. SUBSCRIPTION. Agreement to subscribe to a race, 283. Rules of Tattersall's Room, 438. SUNDAY. Billiard playing not allowed, 336. SUNDAY DEALING. Law of King Athelstan, 27. Statute of Charles 2, id. Sale by a Horsedealer, id. By an ordinary person, 28. Y 3 486 INDEX. SUNDAY DEALmG— continued. A subsequent ratification, 21. Breach of a Warranty given on a Sunday, id. Work done by a Stallion-master, 192. SWEEPS. See Racing and Derby Sweeps, 315. SWEEPSTAKES, 283. T. TABLES. For Gaming, 333. May be taken, id. Evidence of a Gaming-house, id. May be destroyed, id. TACKLE. Breaking, 229. No defence, 243. TAIL. Loss of, 107. TATTERSALLS, 326. Conditions of sale used there, 437. Rules of the Subscription Room, 438. TEMPORARY DISEASE. Unsoundness, 54. TENDER. Appropriation of it, 136. Proof of it, 160. Necessary to recover Keep, 170, 172. TENIERS. Picture represented to be by him, 113. TENNIS, 279, 312, 313. TERMS. Under s. 17 of the Statute of Frauds, 6, 15. Cannot be varied by parol, 18. THICKENING OF THE BACK SINEWS, 86. THICK-WIND, 87, 344. THINNESS OF SOLE. Held not to be an Unsoundness, 87. THOROUGH^PIN, 88. INDEX. 487 THRUSH, 88. TIME BARGAIN, 302, 303. TITLE. Warranty of, 69. Want of, pleaded, 113. TRAINER. Has a Lien, 191. Horsebreaker has a Lien, id. TRAVELLER, 178. TRAVELLING EXPENSES, 174. TRESPASS. See Negligent Driving, Hunting and Trespassing. TRIAL. Of a Horse, 35. TRIPPING, 88. TROTTING MATCH, 211. TROVER, 171. U. UMPIRE. Stewards, 289. Stakeholders, 282. Clerk of the Course, 285. Appointment of a Judge, 291. UNSOUNDNESS. What constitutes it. See Chapter IV. Present state of the law, 50. Rule regarding it, 51. Important decision, 52. How it should be left to a Jury, 54. USAGE. Of trade, 162. V. VERMIN. See Hunting and Trespassing, 255. VETERINARY SURGEON. No law peculiar to him, 185. Certificate of Veterinary College, id. His evidence, 160. 488 INDEX. VICE. What constitutes it. See Chapter IV. Present state of the law, 50. Rule regarding it, 51. How it should be left to a Jury, id. VICIOUS. To clean, 88. To shoe, 89. VICIOUS ANIMALS, 250. VICTORIA. Reign of, 277. VICTUALLER. Does not require Billiard Licence, 335. But is subject to certain regulations, id. VISIBLE DEFECT, 121. W. WAGERS. Wagers at Common Law, 299. Wager on the life of Napoleon, 300. Wager on the result of an election, id. Betting on a race, id. Bets not recoverable, id. Deposit recoverable before the event, id. Decision of the Court of Common Pleas, 301. The Act for the Suppression of Betting Houses, 302. The Stock-Jobbing Act, id. Does not aflect time bargains in Foreign Funds, id. Nor in shares, 303. Where each party means to break the contract, id. As in a time bargain, id. Gaming within 8 & 9 Vict. c. 109, id. Question to be left to the Jury, id. Statute against wagering policies, id. What held to be such a policy, 304. Wasfcr as to a declaration of war, id. What was held not to be such a policy, id. Paying a bet, id. Giving a security, id. Where a note or bill is a gift, id. Taking a stolen bank note in payment, 305. What invalidates the holder's right, id. Mala fides must be distinctly proved, id. INDEX. 489 WAGERS— continued. Money borrowed to pay bets, 306. A betting agent, id. A betting partner, id. Cheating in a Wager, id. WAGERING POLICIES, 303. WAGGON. Trotting along a road, 224. Trotting along a street, id. WALL-EYED, 89. WARBLES, 89. WARRANTY. Warranty required in buying a Horse, 9S. Warranty of title, id. Not implied by Law of England, 94. How it may be infeiTed, id. When the consideration fails, id. Mode of trj-ing a disputed title, id. Reason for requiring a Warranty, id. Buyer should protect himself by one, 95. What constitutes a Warranty, id. Article named in a sold note, id. A sound price not tantamount to a Wan'anty, id, A general Warranty, 96. A qualified Warranty, id. A limited Wan-anty, id. A special Warranty, id. A written Warranty, id. A special agreement, 97- Form of Warranty, id. Effect of a written Warranty, id. The parties are bound by it alone, id. It cannot be extended by implication, id. A Warranty is several though the contract be entire, id. A Warranty applies to the time of sale, 98. Warranting a future event, id. Buying for a particular purpose, id. Must be reasonably fit for the purpose, id. A Carriage Horse, id. Quiet in harness, id. Unfitness must be clearly proved, id. Warrantor's liability, 100. Sale avoided by fraud, id. WARRANTY AND SALE BY AN AGENT. An agent cannot delegate his authority, 100. Nor exceed it, 101. 490 INDEX. WARRANTY AND SALE BY AN AGE^T— continued. Agency determines by principal's death, 101. Difference between a remunerated and an unremunerated agent, id. Agent acting without proper authority, id. His personal responsibility, id. Where he cannot be sued on the contract, id. But is liable in damages, id. Principal answerable for his fraud, 102. Or damage caused by his negligence, id. Rule as to principal and agent, id. Person described as agent may be proved to be principal, 103. Principal cannot be proved to be an agent, id. Their respective rights of action on a contract, id. Warranty by a servant at the time of sale, id. Warranty by a servant after sale, 104. Warranty by a servant forbid to give one, id. Warranty by a stranger forbid to give one, id. Master unwilling to stand by his servant's Warranty, 105. Rule as to a servant binding his master, id. Warranty by a person entrusted to deliver, id. Agent employed to take a Warranty, 106. Action against a pretended agent, id. WARRANTY DISTINGUISHED FROM REPRE- SENTATION. Representation intended as a Warranty, 111. Recommendation of the seller, id. Affirmation as to value, 112. Difference between a Warranty and a Representation, id. Rule as to Warranty and Representation, id. Mere expression of opinion, 113. Selling according to a pedigree, id. Selling according to an inventory "with all faults," id. Partly a Warranty and partly a Representation, id. The Jury must decide between a Warranty and a Re- presentation, 114. WARTS, 89. WATER FARCY, 89. WEAK-FOOT, 89. WEAVING, 90. WEIGHTS. Under 13 Geo. 2, c. 19.. 274. For Queen's Plate, 432. INDEX. 491 WHEEZING, 90. WHIST. Lawful, 345. WHISTLING, 90. WILLIAM THE CONQUEROR. Reign of, 264. WILLIAM THE THIRD. Reign of, 272. WILLIAM THE FOURTH. Reign of, -^77. WILREMHAUNCH, 90. WINDGALLS, 90. WIND-SUCKING, 91. WITNESS. Competency, 166. Concerned in unlawful Gaming, 234. Entitled to an Indemnity, id. WOOLF'S-TOOTH, 92. WRESTLING MATCH, 279, 313. Y. YACHTING, 279, 313. And see Regattas. YELLOWS, 93. LONDON: PRINTED BY C. ROWORTIl AND SONS, DELL YARD* TEMPLE BAR. i 'Mi